00a1d238e37ac225b8045a97953e845d.pdf	effective_date jurisdiction party term	EX-10.23 5 dex1023.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nExhibit 10.23\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nEric Dean Sprunk (“EMPLOYEE”)\nand\nNIKE, Inc., divisions, subsidiaries\nand affiliates. (“NIKE”):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment or upon the EMPLOYEE’s\nadvancement with NIKE and is a condition of such employment or advancement.\nB. Over the course of EMPLOYEE’s employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE’s detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or\notherwise, and for one year thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or participate in\nthe ownership,\nmanagement or control of, or be employed by, consult for, or be connected in any manner with, any business engaged anywhere in the world in the\nathletic footwear, athletic apparel or sports equipment and accessories business, or any other business which directly competes with NIKE or any of\nits parent, subsidiaries or affiliated corporations ( “Competitor”). By way of illustration only, examples of NIKE competitors include, but are not\nlimited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance, Ralph Lauren/Polo Sport, B.U.M,\nFUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Foot lockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway\nGolf and Titleist. This provision is subject to NIKE’s option to waive all or any portion of the Restriction Period as more specifically provided\nbelow.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other\naction, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement judicial or other resolution. NIKE\nshall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any period of time in which this\nAgreement is tolled due to EMPLOYEE’s breach. In the event EMPLOYEE receives such additional compensation after any such breach,\nEMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE’s employment and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly severance payment equal to fifty\npercent (50%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with\nNIKE’s payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protected Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in verbal\nform, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing,\nProtected Information includes information relating to NIKE’s research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing\nprocesses and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of their\npersonal portfolio copies of the employees’ original artwork and designs, provided the artwork or designs have become part of the public domain. In\nany dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any\npurpose outside the scope of EMPLOYEE’s employment with NIKE or disclose any Protected Information to any third person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior written consent of NIKE.\nEMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that there is no use or disclosure,\nintentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE’s possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid\nby a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE’s employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any\naction or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE\nNIKE, Inc.\n/s/ Eric Dean Sprunk\nBy\n/s/ Jeffrey M. Cava\nDATE 04/18/01\nName:\nTitle:\nJeffrey M. Cava\nVice President, Global Human Resources	EX-10.23 5 dex1023.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nExhibit 10.23\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nEric Dean Sprunk (“EMPLOYEE”)\n \nand\nNIKE, Inc., divisions, subsidiaries\nand affiliates. (“NIKE”):\nRECITALS:\nA.  This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment or upon the EMPLOYEE’s\nadvancement with NIKE and is a condition of such employment or advancement.\nB.  Over the course of EMPLOYEE’s employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC.  The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE’s detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1.  Covenant Not to Compete.\n(@) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or\notherwise, and for one year thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or participate in\nthe ownership,\nmanagement or control of, or be employed by, consult for, or be connected in any manner with, any business engaged anywhere in the world in the\nathletic footwear, athletic apparel or sports equipment and accessories business, or any other business which directly competes with NIKE or any of\nits parent, subsidiaries or affiliated corporations ( “Competitor”). By way of illustration only, examples of NIKE competitors include, but are not\nlimited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance, Ralph Lauren/Polo Sport, B.U.M,\nFUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Foot lockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway\nGolf and Titleist. This provision is subject to NIKE’s option to waive all or any portion of the Restriction Period as more specifically provided\nbelow.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other\naction, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement judicial or other resolution. NIKE\nshall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any period of time in which this\nAgreement is tolled due to EMPLOYEE’s breach. In the event EMPLOYEE receives such additional compensation after any such breach,\nEMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE’s employment and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOY EE’s last monthly base salary while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly severance payment equal to fifty\npercent (50%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with\nNIKE'’s payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3.  Non-Disclosure Agreement.\n(@) Protected Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in verbal\nform, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing,\nProtected Information includes information relating to NIKE’s research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing\nprocesses and methods, products, and personnel information.\n(b)  Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of their\npersonal portfolio copies of the employees’ original artwork and designs, provided the artwork or designs have become part of the public domain. In\nany dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any\npurpose outside the scope of EMPLOYEE’s employment with NIKE or disclose any Protected Information to any third person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior written consent of NIKE.\nEMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that there is no use or disclosure,\nintentional or inadvertent, of Protected Information in violation of this Agreement.\n \n4.  Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE’s possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7.  Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8.  General Provisions.\n(@) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c)  Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid\nby a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE’s employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any\naction or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE NIKE, Inc.\n/s/ Eric Dean Sprunk By /s/ Jeffrey M. Cava\nName: Jeffrey M. Cava\nDATE 04/18/01 Title:  Vice President, Global Human Resources	EX-10.23 5 dlex1023.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nExhibit 10.23\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nEric Dean Sprunk ("EMPLOYEE")\nand\nNIKE, Inc., divisions, subsidiaries\nand affiliates. ("NIKE"):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment or upon the EMPLOYEE'S\nadvancement with NIKE and is a condition of such employment or advancement.\nB. Over the course of EMPLOYEE'S employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE's business and not generally known to the public as defined below ("Protected Information").\nIt\nis\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC.\nThe nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE's detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction During EMPLOYEE'S employment by NIKE, under the terms of any employment contract\nor\notherwise, and for one year thereafter, (the "Restriction Period"), EMPLOYEE will not directly or indirectly, own, manage, control, or participate in\nthe ownership,\nmanagement or control of, or be employed by, consult for, or be connected in any manner with, any business engaged anywhere in the world in the\nathletic footwear, athletic apparel or sports equipment and accessories business, or any other business which directly competes with NIKE or any\nof\nits parent, subsidiaries or affiliated corporations C "Competitor"). By way of illustration only, examples of NIKE competitors include, but are not\nlimited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance, Ralph Lauren/Polo Sport, B.U.M,\nFUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Foot lockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway\nGolf and Titleist. This provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided\nbelow.\n(b)\nExtension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other\naction, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement judicial or other resolution. NIKE\nshall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any period of time in which this\nAgreement is tolled due to EMPLOYEE'S breach. In the event EMPLOYEE receives such additional compensation after any such breach,\nEMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE's employment and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOYEE'S last monthly base salary while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly severance payment equal to fifty\npercent (50%) of EMPLOYEE'S last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with\nNIKE's payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE'S new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3.\nNon-Disclosure Agreement.\n(a) Protected Information Defined. "Protected Information" shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in verbal\nform, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing,\nProtected Information includes information relating to NIKE's research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans, sales information methods of operation, manufacturing\nprocesses and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of their\npersonal portfolio copies of the employees' original artwork and designs, provided the artwork or designs have become part of the public domain. In\nany dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence.\n(c)\nEmployee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any\npurpose outside the scope of EMPLOYEE'S employment with NIKE or disclose any Protected Information to any third person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior written consent of NIKE.\nEMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that there is no use or disclosure,\nintentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor\ncontaining Protected Information, and all copies thereof, then in EMPLOYEE'S possession or under EMPLOYEE'S control.\n5.\nUnauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE wil notify NIKE immediately\nif\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies\nto\nwhich NIKE may be entitled at law or in equity.\n8.\nGeneral Provisions.\n(a)\nSurvival. This Agreement shall continue in effect after the termination of EMPLOYEE'S employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability.. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid\nby a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE'S employment hereunder, shall be construed according to the\nlaws\nof\nthe State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any\naction or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE\nNIKE, Inc.\n/s/ Eric Dean Sprunk\nBy\n/s/ Jeffrey M. Cava\nName: Jeffrey M. Cava\nDATE 04/18/01\nTitle: Vice President, Global Human Resources	EX-10.23 5 dex1023.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nExhibit 10.23\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nEric Dean Sprunk (“EMPLOYEE”)\nand\nNIKE, Inc., divisions, subsidiaries\nand affiliates. (“NIKE”):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment or upon the EMPLOYEE’s\nadvancement with NIKE and is a condition of such employment or advancement.\nB. Over the course of EMPLOYEE’s employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE’s detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or\notherwise, and for one year thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or participate in\nthe ownership,\nmanagement or control of, or be employed by, consult for, or be connected in any manner with, any business engaged anywhere in the world in the\nathletic footwear, athletic apparel or sports equipment and accessories business, or any other business which directly competes with NIKE or any of\nits parent, subsidiaries or affiliated corporations ( “Competitor”). By way of illustration only, examples of NIKE competitors include, but are not\nlimited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance, Ralph Lauren/Polo Sport, B.U.M,\nFUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Foot lockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway\nGolf and Titleist. This provision is subject to NIKE’s option to waive all or any portion of the Restriction Period as more specifically provided\nbelow.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other\naction, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement judicial or other resolution. NIKE\nshall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any period of time in which this\nAgreement is tolled due to EMPLOYEE’s breach. In the event EMPLOYEE receives such additional compensation after any such breach,\nEMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE’s employment and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly severance payment equal to fifty\npercent (50%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with\nNIKE’s payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protected Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in verbal\nform, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing,\nProtected Information includes information relating to NIKE’s research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing\nprocesses and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of their\npersonal portfolio copies of the employees’ original artwork and designs, provided the artwork or designs have become part of the public domain. In\nany dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any\npurpose outside the scope of EMPLOYEE’s employment with NIKE or disclose any Protected Information to any third person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior written consent of NIKE.\nEMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that there is no use or disclosure,\nintentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE’s possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid\nby a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE’s employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any\naction or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE\nNIKE, Inc.\n/s/ Eric Dean Sprunk\nBy\n/s/ Jeffrey M. Cava\nDATE 04/18/01\nName:\nTitle:\nJeffrey M. Cava\nVice President, Global Human Resources
031470434423a8c40105a4b404ced88b.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 3 d450961dex99e2.htm EX-(E)(2)\nExhibit (e)(2)\nLOGO\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is effective as of February 10, 2017 (“Effective Date”), between Kite Pharma,\nInc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 (“Kite”) and Gilead Sciences, Inc.,\na Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404 (“Company”). Kite and Company may be\nreferred to herein individually as a “Party” and collectively as the “Parties.”\nThe Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their\nrespective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows:\n1. Definitions.\n1.1\n“Affiliate” means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is controlled by,\nor is under common control with such Party. For purposes of this definition, “control” means possession of the power to direct the\nmanagement of such entity or person, whether through ownership of more than fifty percent (50%) of voting securities, by contract or\notherwise.\n1.2\n“Confidential Information” means any and all information and/or data disclosed to the Receiving Party (as defined below) by the\nDisclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data, designs, plans,\nspecifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes, formulas, works-in-progress,\nsystems, technologies, manufacturing or marketing techniques, business or financial information; provided, however, that\nConfidential Information shall not include, and neither party shall disclose to the other party, any non-publicly disclosed chemical\nstructures of its compounds or sequence information, including amino acid and nucleic acid sequences, of its proteins, molecules or\nother proprietary substances, unless such disclosure is requested in advance in writing by the Receiving Party and thereafter later\nagreed to in writing by both parties, in which case such disclosed chemical structures and/or sequence information (as specifically\nindicated in any such subsequent writing) shall be deemed Confidential Information of the Disclosing Party under this Agreement.\n1.3\n“Disclosing Party” means the Party or its Representatives divulging Confidential Information to the Receiving Party (as defined\nbelow).\n1.4\n“Purpose” means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of its\nAffiliates) and the Company (and/or any of its Affiliates).\n1.5\n“Receiving Party” means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n1.6\n“Representatives” means, with respect to a Party, such Party’s Affiliates and its (and its Affiliates’) respective officers (including\ndirectors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal and financial\nadvisors.\n2. Duties.\n2.1 Restrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party’s Confidential Information in\nsecrecy and confidence and shall not disclose any of the Disclosing Party’s Confidential Information to a third party, other than the\nReceiving Party’s Representatives as permitted by Section 2.2 below, nor use it for any purpose other than the Purpose, without the\nexpress\n1of5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving Party uses to\nprotect its own valuable Confidential Information but in no event less than a commercially reasonable degree of care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those Representatives who\nhave a need to know such Confidential Information for the Purpose. All Representatives to whom the Confidential Information is\ndisclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at least as restrictive as the terms of this\nAgreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts and omissions of its respective Representatives\nunder this Agreement as if such acts and omissions were performed (or not performed) by the Receiving Party. If an act or omission\nof a Representative of a Receiving Party would, if committed by the Receiving Party, constitute a breach of this Agreement, such act\nor omission shall constitute a breach of this Agreement by such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party’s Representatives to the\nReceiving Party or the Receiving Party’s Representatives.\n2.4 Attorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege. However, to the extent that any Confidential Information may include\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or\nthreatened legal proceedings or governmental investigations, the Parties understand and agree that they have a commonality of\ninterest with respect to such matters and it is their desire, intention and mutual understanding that the sharing, whether inadvertent or\nintentional, of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either Party that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party’s consent, disclose to any other person (except for\nRepresentatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that investigations,\ndiscussions or negotiations are or may be taking place concerning a possible transaction or any facts related thereto (“Other\nInformation”).\n3. Exceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any information\nthat:\n(a) is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written evidence\npredating the date that such information was disclosed hereunder;\n(b) is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of this\nAgreement by the Receiving Party;\n(c) is disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d) is independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2of5\nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within the public\ndomain or in the possession of a Receiving Party merely because the Confidential Information is embraced by more general\ninformation in the public domain or in the possession of such party. Further, any combination of individual elements of Confidential\nInformation shall be considered Confidential Information and shall not be considered in the public domain or in the possession of a\nReceiving Party merely because one or more individual elements of such combination are in the public domain or in the possession of\nsuch Party; rather such combination shall only be considered in the public domain or in the possession of a Receiving Party if the\ncombination of each of the individual elements of the combination is in the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving Party\nmay disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is required by\napplicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental authority, provided that the\nReceiving Party shall promptly inform the Disclosing Party in writing of such disclosure requirement so that the Disclosing Party\nmay seek a protective order or other appropriate remedy. The Receiving Party shall reasonably cooperate with Disclosing Party in\nconnection with the Disclosing Party’s efforts to obtain any such order or other remedy. In the event that no such protective order or\nother remedy is obtained, then the Receiving Party may furnish only that portion of the Confidential Information which the Receiving\nParty is advised by counsel (including its internal legal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty as to the\naccuracy, completeness or utility of its Confidential Information. THE RECEIVING PARTY ACKNOWLEDGES THAT THE\nCONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED “AS IS,” WITHOUT ANY WARRANTY,\nEXPRESS OR IMPLIED.\n3.5 No License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with respect to the\nConfidential Information.\n3.6 Ownership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are delivered\nto the Receiving Party by the Disclosing Party or the Disclosing Party’s Representatives under this Agreement are and remain the\nsole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the Receiving Party shall, at its own\ncost and expense, promptly destroy or return to the Disclosing Party all such materials (if returned, in the medium provided by\nDisclosing Party) and destroy all copies of the foregoing or any portion thereof; provided, however, that Receiving Party may retain\none copy of the foregoing materials in a secure location for record-keeping purposes. Neither the Receiving Party nor any of its\nRepresentatives shall be required to delete or destroy any electronic back-up tapes or other electronic back-up files that have been\ncreated solely by their automatic or routine archiving and back-up procedures, to the extent created and retained in a manner\nconsistent with its or their standard archiving and back-up procedures.\n4. Term and Termination.\n4.1 Term. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party shall\nbegin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival. The Receiving Party’s obligations with respect to Confidential Information under Section 2 shall survive termination or\nexpiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n3of5\nConfidential\n5. Miscellaneous.\n5.1 No Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to continue\ndiscussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\n5.2 Assignment. Neither this Agreement nor the obligations hereunder may be assigned or otherwise transferred by a Party without\nwritten consent of the other Party, except in connection with the sale of all or substantially all of a Party’s assets, equity or business or\na merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting equity securities of the Party.\nThis Agreement shall be binding upon the parties, their successors and their permitted assigns.\n5.3 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without\nreference to its rules of conflicts of laws.\n5.4 Transfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any applicable\nexport control laws, rules and regulations relating to the export of technical information, materials or products in connection with any\ndisclosure of Confidential Information under this Agreement.\n5.5 Notices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a nationally-\nrecognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to the Parties at the\naddresses indicated in the introductory paragraph of this Agreement, to the attention of the signatories below, with a copy, in the case\nof Company, to the General Counsel. Either Party may change its address by giving the other Party written notice, delivered in\naccordance with this Section 5.5 .\n5.6 Waivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may be waived,\nonly by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right hereunder shall operate\nas a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof. The rights and remedies herein\nare cumulative and are not exclusive of any rights or remedies which any Party may otherwise have at law or in equity.\n5.7 Injunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a Party in\nan amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly, in addition to any\nof the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall be entitled to seek\ntemporary and permanent injunctive relief from any breach or threatened breach without the requirement of the Party bringing such\naction to post any bond or other security with the court in connection therewith.\n5.8 Entire Agreement; Severability. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter\nhereof and any express or implied agreements, either oral or written, are superseded by the terms of this Agreement. If any one or\nmore provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a court having competent jurisdiction,\nthe validity, legality and enforceability of this Agreement and the remaining provisions contained herein shall not in any way be\naffected or impaired thereby.\n5.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original as against either Party whose\nsignature appears thereon, but all of which taken together shall constitute but one and the same instrument. An executed facsimile or\nelectronic scanned copy of this Agreement shall have the same force and effect as an original.\n4of5\nConfidential\nKITE PHARMA, INC.\nGILEAD SCIENCES, INC.\nBy: /s/ Veer Bhavnagri\nBy: /s/ Elizabeth P. Bhatt\nName: Veer Bhavnagri\nName: Elizabeth Bhatt\nTitle: VP Corporate Counsel\nTitle: Vice President, Corporate Development\nDate: February 10, 2017\nDate: February 15, 2017\n5of5	EX-99.(E)(2) 3 d450961dex99e2.htm EX-(E)(2) »LOGO Exhibit (e)(2)\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is effective as of February 10, 2017 (“Effective Date”), between Kite Pharma, Inc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 (“Kite”) and Gilead Sciences, Inc., a Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404 (“Company”). Kite and Company may be referred to herein individually as a “Party” and collectively as the “Parties.” The Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their respective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows: 1. Definitions. 1.1\n1.2\n1.3\n1.4\n1.5\n1.6\n“Affiliate” means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is controlled by,\nor is under common control with such Party. For purposes of this definition, “control” means possession of the power to direct the\nmanagement of such entity or person, whether through ownership of more than fifty percent (50%) of voting securities, by contract or\notherwise.\n“Confidential Information” means any and all information and/or data disclosed to the Receiving Party (as defined below) by the\nDisclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data, designs, plans,\nspecifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes, formulas, works-in-progress,\nsystems, technologies, manufacturing or marketing techniques, business or financial information; provided, however, that\nConfidential Information shall not include, and neither party shall disclose to the other party, any non-publicly disclosed chemical\nstructures of its compounds or sequence information, including amino acid and nucleic acid sequences, of its proteins, molecules or\nother proprietary substances, unless such disclosure is requested in advance in writing by the Receiving Party and thereafter later\nagreed to in writing by both parties, in which case such disclosed chemical structures and/or sequence information (as specifically\nindicated in any such subsequent writing) shall be deemed Confidential Information of the Disclosing Party under this Agreement.\n“Disclosing Party” means the Party or its Representatives divulging Confidential Information to the Receiving Party (as defined\nbelow).\n“Purpose” means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of its\nAffiliates) and the Company (and/or any of its Affiliates).\n“Receiving Party” means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n“Representatives” means, with respect to a Party, such Party’s Affiliates and its (and its Affiliates’) respective officers (including\ndirectors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal and financial\nadvisors.\n2. Duties. 2.1\nRestrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party’s Confidential Information in\nsecrecy and confidence and shall not disclose any of the Disclosing Party’s Confidential Information to a third party, other than the\nReceiving Party’s Representatives as permitted by Section 2.2 below, nor use it for any purpose other than the Purpose, without the\nexpress\n1of5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving Party uses to\nprotect its own valuable Confidential Information but in no event less than a commercially reasonable degree of care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those Representatives who\nhave a need to know such Confidential Information for the Purpose. All Representatives to whom the Confidential Information is\ndisclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at least as restrictive as the terms of this\nAgreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts and omissions of its respective Representatives\nunder this Agreement as if such acts and omissions were performed (or not performed) by the Receiving Party. If an act or omission\nof a Representative of a Receiving Party would, if committed by the Receiving Party, constitute a breach of this Agreement, such act\nor omission shall constitute a breach of this Agreement by such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party’s Representatives to the\nReceiving Party or the Receiving Party’s Representatives.\n2.4 Attorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege. However, to the extent that any Confidential Information may include\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or\nthreatened legal proceedings or governmental investigations, the Parties understand and agree that they have a commonality of\ninterest with respect to such matters and it is their desire, intention and mutual understanding that the sharing, whether inadvertent or\nintentional, of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either Party that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party’s consent, disclose to any other person (except for\nRepresentatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that investigations,\ndiscussions or negotiations are or may be taking place concerning a possible transaction or any facts related thereto (“Other\nInformation”).\nExceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any information\nthat:\n(a)  is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written evidence\npredating the date that such information was disclosed hereunder;\n(b)  is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of this\nAgreement by the Receiving Party;\n(c)  isdisclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d) isindependently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n20f5\n3.2\n3.3\n3.4\n3.5\n3.6\nConfidential\nPartial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within the public\ndomain or in the possession of a Receiving Party merely because the Confidential Information is embraced by more general\ninformation in the public domain or in the possession of such party. Further, any combination of individual elements of Confidential\nInformation shall be considered Confidential Information and shall not be considered in the public domain or in the possession of a\nReceiving Party merely because one or more individual elements of such combination are in the public domain or in the possession of\nsuch Party; rather such combination shall only be considered in the public domain or in the possession of a Receiving Party if the\ncombination of each of the individual elements of the combination is in the public domain or in the possession of the Receiving Party.\nDisclosure Required by Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving Party\nmay disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is required by\napplicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental authority, provided that the\nReceiving Party shall promptly inform the Disclosing Party in writing of such disclosure requirement so that the Disclosing Party\nmay seek a protective order or other appropriate remedy. The Receiving Party shall reasonably cooperate with Disclosing Party in\nconnection with the Disclosing Party’s efforts to obtain any such order or other remedy. In the event that no such protective order or\nother remedy is obtained, then the Receiving Party may furnish only that portion of the Confidential Information which the Receiving\nParty is advised by counsel (including its internal legal counsel) that it is legally required to disclose.\nNo Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty as to the\naccuracy, completeness or utility of its Confidential Information. THE RECEIVING PARTY ACKNOWLEDGES THAT THE\nCONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED “AS IS,” WITHOUT ANY WARRANTY,\nEXPRESS OR IMPLIED.\nNo License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with respect to the\nConfidential Information.\nOwnership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are delivered\nto the Receiving Party by the Disclosing Party or the Disclosing Party’s Representatives under this Agreement are and remain the\nsole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the Receiving Party shall, at its own\ncost and expense, promptly destroy or return to the Disclosing Party all such materials (if returned, in the medium provided by\nDisclosing Party) and destroy all copies of the foregoing or any portion thereof; provided, however, that Receiving Party may retain\none copy of the foregoing materials in a secure location for record-keeping purposes. Neither the Receiving Party nor any of its\nRepresentatives shall be required to delete or destroy any electronic back-up tapes or other electronic back-up files that have been\ncreated solely by their automatic or routine archiving and back-up procedures, to the extent created and retained in a manner\nconsistent with its or their standard archiving and back-up procedures.\n4, Term and Termination. 4.1\n4.2\nTerm. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party shall\nbegin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\nSurvival. The Receiving Party’s obligations with respect to Confidential Information under Section 2 shall survive termination or\nexpiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n30f5\nConfidential\nMiscellaneous. 5.1\n5.2\n5.3\n5.4\n5.5\n5.6\n5.7\n5.8\n5.9\nNo Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to continue\ndiscussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\nAssignment. Neither this Agreement nor the obligations hereunder may be assigned or otherwise transferred by a Party without\nwritten consent of the other Party, except in connection with the sale of all or substantially all of a Party’s assets, equity or business or\na merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting equity securities of the Party.\nThis Agreement shall be binding upon the parties, their successors and their permitted assigns.\nApplicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without\nreference to its rules of conflicts of laws.\nTransfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any applicable\nexport control laws, rules and regulations relating to the export of technical information, materials or products in connection with any\ndisclosure of Confidential Information under this Agreement.\nNotices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a nationally-\nrecognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to the Parties at the\naddresses indicated in the introductory paragraph of this Agreement, to the attention of the signatories below, with a copy, in the case\nof Company, to the General Counsel. Either Party may change its address by giving the other Party written notice, delivered in\naccordance with this Section 5.5.\nWaivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may be waived,\nonly by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right hereunder shall operate\nas a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof. The rights and remedies herein\nare cumulative and are not exclusive of any rights or remedies which any Party may otherwise have at law or in equity.\nInjunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a Party in\nan amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly, in addition to any\nof the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall be entitled to seek\ntemporary and permanent injunctive relief from any breach or threatened breach without the requirement of the Party bringing such\naction to post any bond or other security with the court in connection therewith.\nEntire Agreement; Severability. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter\nhereof and any express or implied agreements, either oral or written, are superseded by the terms of this Agreement. If any one or\nmore provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a court having competent jurisdiction,\nthe validity, legality and enforceability of this Agreement and the remaining provisions contained herein shall not in any way be\naffected or impaired thereby.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be an original as against either Party whose\nsignature appears thereon, but all of which taken together shall constitute but one and the same instrument. An executed facsimile or\nelectronic scanned copy of this Agreement shall have the same force and effect as an original.\n4 0of 5\nKITE PHARMA, INC.\nBy: /s/ Veer Bhavnagri\nName: Veer Bhavnagri\nTitle: VP Corporate Counsel\nDate: February 10, 2017\n50f5\nConfidential\nGILEAD SCIENCES, INC.\nBy: /s/ Elizabeth P. Bhatt\nName: Elizabeth Bhatt\nTitle:  Vice President, Corporate Development\nDate: February 15, 2017	EX-99.(E)(2) 3 d450961dex99e2.htm EX-(E)(2)\nExhibit (e)(2)\nLOGO\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement ("Agreement") is effective as of February 10, 2017 ("Effective Date"), between Kite Pharma,\nInc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 ("Kite") and Gilead Sciences, Inc.,\na Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404 ("Company"). Kite and Company may be\nreferred to herein individually as a "Party" and collectively as the "Parties."\nThe Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their\nrespective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows:\n1. Definitions.\n1.1 "Affiliate" means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is controlled by,\nor is under common control with such Party. For purposes of this definition, "control" means possession of the power to direct the\nmanagement of such entity or person, whether through ownership of more than fifty percent (50%) of voting securities, by contract\nor\notherwise.\n1.2 "Confidential Information" means any and all information and/or data disclosed to the Receiving Party (as defined below) by the\nDisclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data, designs, plans,\nspecifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes, formulas, works-in-progress\nsystems, technologies, manufacturing or marketing techniques, business or financial information; provided, however, that\nConfidential Information shall not include, and neither party shall disclose to the other party, any non-publicly disclosed chemical\nstructures of its compounds or sequence information, including amino acid and nucleic acid sequences, of its proteins, molecules or\nother proprietary substances, unless such disclosure is requested in advance in writing by the Receiving Party and thereafter later\nagreed to in writing by both parties, in which case such disclosed chemical structures and/or sequence information (as specifically\nindicated in any such subsequent writing) shall be deemed Confidential Information of the Disclosing Party under this Agreement.\n1.3 "Disclosing Party" means the Party or its Representatives divulging Confidential Information to the Receiving Party (as defined\nbelow).\n1.4 "Purpose" means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of its\nAffiliates) and the Company (and/or any of its Affiliates)\n1.5\n"Receiving Party" means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n1.6 "Representatives" means, with respect to a Party, such Party's Affiliates and its (and its Affiliates') respective officers (including\ndirectors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal and financial\nadvisors.\n2.\nDuties.\n2.1\nRestrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party's Confidential Information in\nsecrecy and confidence and shall not disclose any of the Disclosing Party's Confidential Information to a third party, other than the\nReceiving Party's Representatives as permitted by Section 2.2 below, nor use it for any purpose other than the Purpose, without the\nexpress\n1 of 5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving Party uses to\nprotect its own valuable Confidential Information but in no event less than a commercially reasonable degree of care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those Representatives who\nhave a need to know such Confidential Information for the Purpose. All Representatives to whom the Confidential Information is\ndisclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at least as restrictive as the terms of this\nAgreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts and omissions of its respective Representatives\nunder this Agreement as if such acts and omissions were performed (or not performed) by the Receiving Party. If an act or omission\nof a Representative of a Receiving Party would, if committed by the Receiving Party, constitute a breach of this Agreement, such act\nor omission shall constitute a breach of this Agreement by such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party's Representatives to the\nReceiving Party or the Receiving Party's Representatives.\n2.4\nAttorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege. However, to the extent that any Confidential Information may include\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or\nthreatened legal proceedings or governmental investigations, the Parties understand and agree that they have a commonality of\ninterest with respect to such matters and it is their desire, intention and mutual understanding that the sharing, whether inadvertent or\nintentional, of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either Party that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party's consent, disclose to any other person (except for\nRepresentatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that investigations,\ndiscussions or negotiations are or may be taking place concerning a possible transaction or any facts related thereto ("Other\nInformation").\n3.\nExceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any information\nthat:\n(a)\nis known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written evidence\npredating the date that such information was disclosed hereunder;\n(b)\nis at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of this\nAgreement by the Receiving Party;\n(c)\nis disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d)\nis independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2 of 5\nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within the public\ndomain or in the possession of a Receiving Party merely because the Confidential Information is embraced by more general\ninformation in the public domain or in the possession of such party. Further, any combination of individual elements of Confidential\nInformation shall be considered Confidential Information and shall not be considered in the public domain or in the possession of a\nReceiving Party merely because one or more individual elements of such combination are in the public domain or in the possession of\nsuch Party; rather such combination shall only be considered in the public domain or in the possession of a Receiving Party if the\ncombination of each of the individual elements of the combination is in the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by. Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving Party\nmay disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is required by\napplicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental authority, provided that the\nReceiving Party shall promptly inform the Disclosing Party in writing of such disclosure requirement so that the Disclosing Party\nmay seek a protective order or other appropriate remedy. The Receiving Party shall reasonably cooperate with Disclosing Party in\nconnection with the Disclosing Party's efforts to obtain any such order or other remedy. In the event that no such protective order or\nother remedy is obtained, then the Receiving Party may furnish only that portion of the Confidential Information which the Receiving\nParty is advised by counsel (including its internal legal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty as to the\naccuracy, completeness or utility of its Confidential Information THE RECEIVING PARTY ACKNOWLEDGES THAT THE\nCONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED "AS IS," WITHOUT ANY WARRANTY,\nEXPRESS OR IMPLIED.\n3.5\nNo License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with respect to the\nConfidential Information.\n3.6\nOwnership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are delivered\nto the Receiving Party by the Disclosing Party or the Disclosing Party's Representatives under this Agreement are and remain the\nsole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the Receiving Party shall, at its own\ncost and expense, promptly destroy or return to the Disclosing Party all such materials (if returned, in the medium provided by\nDisclosing Party) and destroy all copies of the foregoing or any portion thereof; provided, however, that Receiving Party may retain\none copy of the foregoing materials in a secure location for record-keeping purposes. Neither the Receiving Party nor any of its\nRepresentatives\nshall\nbe\nrequired\nto\ndelete\nor\ndestroy\nany\nelectronic\nback-up\ntapes\nor\nother\nelectronic\nback-up\nfiles\nthat\nhave\nbeen\ncreated solely by their automatic or routine archiving and back-up procedures, to the extent created and retained in a manner\nconsistent with its or their standard archiving and back-up procedures.\n4.\nTerm and Termination.\n4.1\nTerm. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party shall\nbegin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival. The Receiving Party's obligations with respect to Confidential Information under Section 2 shall survive termination or\nexpiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n3 of 5\nConfidential\n5. Miscellaneous.\n5.1 No Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to continue\ndiscussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\n5.2\nAssignment. Neither this Agreement nor the obligations hereunder may be assigned or otherwise transferred by a Party without\nwritten consent of the other Party, except in connection with the sale of all or substantially all of a Party's assets, equity or business or\na merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting equity securities of the Party.\nThis Agreement shall be binding upon the parties, their successors and their permitted assigns.\n5.3\nApplicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without\nreference to its rules of conflicts of laws.\n5.4\nTransfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any applicable\nexport control laws, rules and regulations relating to the export of technical information, materials or products in connection with any\ndisclosure of Confidential Information under this Agreement.\n5.5\nNotices.\nEach\nnotice\nrequired\nor\npermitted\nhereunder\nshall\nbe\nin\nwriting\nand\nsufficient\nif\ndelivered\npersonally,\nsent\nby\na\nnationally-\nrecognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to the Parties at the\naddresses indicated in the introductory paragraph of this Agreement, to the attention of the signatories below, with a copy, in the case\nof Company, to the General Counsel. Either Party may change its address by giving the other Party written notice, delivered in\naccordance with this Section 5.5.\n5.6 Waivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may be waived,\nonly by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right hereunder shall operate\nas\na waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof. The rights and remedies herein\nare cumulative and are not exclusive of any rights or remedies which any Party may otherwise have at law or in equity.\n5.7 Injunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a Party in\nan amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly, in addition to any\nof the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall be entitled to seek\ntemporary and permanent injunctive relief from any breach or threatened breach without the requirement of the Party bringing such\naction to post any bond or other security with the court in connection therewith.\n5.8\nEntire Agreement; Severability.. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter\nhereof and any express or implied agreements, either oral or written, are superseded by the terms of this Agreement. If any one or\nmore provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a court having competent jurisdiction,\nthe validity, legality and enforceability of this Agreement and the remaining provisions contained herein shall not in any way be\naffected or impaired thereby.\n5.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original as against either Party whose\nsignature appears thereon, but all of which taken together shall constitute but one and the same instrument. An executed facsimile or\nelectronic scanned copy of this Agreement shall have the same force and effect as an original.\n4 of 5\nConfidential\nKITE PHARMA, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Veer Bhavnagri\nBy:\n/s/ Elizabeth P. Bhatt\nName: Veer Bhavnagri\nName: Elizabeth Bhatt\nTitle: VP Corporate Counsel\nTitle: Vice President, Corporate Development\nDate:\nFebruary 10, 2017\nDate: February 15, 2017\n5 of 5	EX-99.(E)(2) 3 d450961dex99e2.htm EX-(E)(2)\nExhibit (e)(2)\nLOGO\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is effective as of February 10, 2017 (“Effective Date”), between Kite Pharma,\nInc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 (“Kite”) and Gilead Sciences, Inc.,\na Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404 (“Company”). Kite and Company may be\nreferred to herein individually as a “Party” and collectively as the “Parties.”\nThe Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their\nrespective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows:\n1. Definitions.\n1.1\n“Affiliate” means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is controlled by,\nor is under common control with such Party. For purposes of this definition, “control” means possession of the power to direct the\nmanagement of such entity or person, whether through ownership of more than fifty percent (50%) of voting securities, by contract or\notherwise.\n1.2\n“Confidential Information” means any and all information and/or data disclosed to the Receiving Party (as defined below) by the\nDisclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data, designs, plans,\nspecifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes, formulas, works-in-progress,\nsystems, technologies, manufacturing or marketing techniques, business or financial information; provided, however, that\nConfidential Information shall not include, and neither party shall disclose to the other party, any non-publicly disclosed chemical\nstructures of its compounds or sequence information, including amino acid and nucleic acid sequences, of its proteins, molecules or\nother proprietary substances, unless such disclosure is requested in advance in writing by the Receiving Party and thereafter later\nagreed to in writing by both parties, in which case such disclosed chemical structures and/or sequence information (as specifically\nindicated in any such subsequent writing) shall be deemed Confidential Information of the Disclosing Party under this Agreement.\n1.3\n“Disclosing Party” means the Party or its Representatives divulging Confidential Information to the Receiving Party (as defined\nbelow).\n1.4\n“Purpose” means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of its\nAffiliates) and the Company (and/or any of its Affiliates).\n1.5\n“Receiving Party” means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n1.6\n“Representatives” means, with respect to a Party, such Party’s Affiliates and its (and its Affiliates’) respective officers (including\ndirectors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal and financial\nadvisors.\n2. Duties.\n2.1 Restrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party’s Confidential Information in\nsecrecy and confidence and shall not disclose any of the Disclosing Party’s Confidential Information to a third party, other than the\nReceiving Party’s Representatives as permitted by Section 2.2 below, nor use it for any purpose other than the Purpose, without the\nexpress\n1of5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving Party uses to\nprotect its own valuable Confidential Information but in no event less than a commercially reasonable degree of care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those Representatives who\nhave a need to know such Confidential Information for the Purpose. All Representatives to whom the Confidential Information is\ndisclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at least as restrictive as the terms of this\nAgreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts and omissions of its respective Representatives\nunder this Agreement as if such acts and omissions were performed (or not performed) by the Receiving Party. If an act or omission\nof a Representative of a Receiving Party would, if committed by the Receiving Party, constitute a breach of this Agreement, such act\nor omission shall constitute a breach of this Agreement by such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party’s Representatives to the\nReceiving Party or the Receiving Party’s Representatives.\n2.4 Attorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege. However, to the extent that any Confidential Information may include\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or\nthreatened legal proceedings or governmental investigations, the Parties understand and agree that they have a commonality of\ninterest with respect to such matters and it is their desire, intention and mutual understanding that the sharing, whether inadvertent or\nintentional, of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either Party that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party’s consent, disclose to any other person (except for\nRepresentatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that investigations,\ndiscussions or negotiations are or may be taking place concerning a possible transaction or any facts related thereto (“Other\nInformation”).\n3. Exceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any information\nthat:\n(a) is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written evidence\npredating the date that such information was disclosed hereunder;\n(b) is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of this\nAgreement by the Receiving Party;\n(c) is disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d) is independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2of5\nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within the public\ndomain or in the possession of a Receiving Party merely because the Confidential Information is embraced by more general\ninformation in the public domain or in the possession of such party. Further, any combination of individual elements of Confidential\nInformation shall be considered Confidential Information and shall not be considered in the public domain or in the possession of a\nReceiving Party merely because one or more individual elements of such combination are in the public domain or in the possession of\nsuch Party; rather such combination shall only be considered in the public domain or in the possession of a Receiving Party if the\ncombination of each of the individual elements of the combination is in the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving Party\nmay disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is required by\napplicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental authority, provided that the\nReceiving Party shall promptly inform the Disclosing Party in writing of such disclosure requirement so that the Disclosing Party\nmay seek a protective order or other appropriate remedy. The Receiving Party shall reasonably cooperate with Disclosing Party in\nconnection with the Disclosing Party’s efforts to obtain any such order or other remedy. In the event that no such protective order or\nother remedy is obtained, then the Receiving Party may furnish only that portion of the Confidential Information which the Receiving\nParty is advised by counsel (including its internal legal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty as to the\naccuracy, completeness or utility of its Confidential Information. THE RECEIVING PARTY ACKNOWLEDGES THAT THE\nCONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED “AS IS,” WITHOUT ANY WARRANTY,\nEXPRESS OR IMPLIED.\n3.5 No License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with respect to the\nConfidential Information.\n3.6 Ownership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are delivered\nto the Receiving Party by the Disclosing Party or the Disclosing Party’s Representatives under this Agreement are and remain the\nsole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the Receiving Party shall, at its own\ncost and expense, promptly destroy or return to the Disclosing Party all such materials (if returned, in the medium provided by\nDisclosing Party) and destroy all copies of the foregoing or any portion thereof; provided, however, that Receiving Party may retain\none copy of the foregoing materials in a secure location for record-keeping purposes. Neither the Receiving Party nor any of its\nRepresentatives shall be required to delete or destroy any electronic back-up tapes or other electronic back-up files that have been\ncreated solely by their automatic or routine archiving and back-up procedures, to the extent created and retained in a manner\nconsistent with its or their standard archiving and back-up procedures.\n4. Term and Termination.\n4.1 Term. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party shall\nbegin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival. The Receiving Party’s obligations with respect to Confidential Information under Section 2 shall survive termination or\nexpiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n3of5\nConfidential\n5. Miscellaneous.\n5.1 No Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to continue\ndiscussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\n5.2 Assignment. Neither this Agreement nor the obligations hereunder may be assigned or otherwise transferred by a Party without\nwritten consent of the other Party, except in connection with the sale of all or substantially all of a Party’s assets, equity or business or\na merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting equity securities of the Party.\nThis Agreement shall be binding upon the parties, their successors and their permitted assigns.\n5.3 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without\nreference to its rules of conflicts of laws.\n5.4 Transfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any applicable\nexport control laws, rules and regulations relating to the export of technical information, materials or products in connection with any\ndisclosure of Confidential Information under this Agreement.\n5.5 Notices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a nationally-\nrecognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to the Parties at the\naddresses indicated in the introductory paragraph of this Agreement, to the attention of the signatories below, with a copy, in the case\nof Company, to the General Counsel. Either Party may change its address by giving the other Party written notice, delivered in\naccordance with this Section 5.5 .\n5.6 Waivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may be waived,\nonly by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right hereunder shall operate\nas a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof. The rights and remedies herein\nare cumulative and are not exclusive of any rights or remedies which any Party may otherwise have at law or in equity.\n5.7 Injunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a Party in\nan amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly, in addition to any\nof the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall be entitled to seek\ntemporary and permanent injunctive relief from any breach or threatened breach without the requirement of the Party bringing such\naction to post any bond or other security with the court in connection therewith.\n5.8 Entire Agreement; Severability. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter\nhereof and any express or implied agreements, either oral or written, are superseded by the terms of this Agreement. If any one or\nmore provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a court having competent jurisdiction,\nthe validity, legality and enforceability of this Agreement and the remaining provisions contained herein shall not in any way be\naffected or impaired thereby.\n5.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original as against either Party whose\nsignature appears thereon, but all of which taken together shall constitute but one and the same instrument. An executed facsimile or\nelectronic scanned copy of this Agreement shall have the same force and effect as an original.\n4of5\nConfidential\nKITE PHARMA, INC.\nGILEAD SCIENCES, INC.\nBy: /s/ Veer Bhavnagri\nBy: /s/ Elizabeth P. Bhatt\nName: Veer Bhavnagri\nName: Elizabeth Bhatt\nTitle: VP Corporate Counsel\nTitle: Vice President, Corporate Development\nDate: February 10, 2017\nDate: February 15, 2017\n5of5
03ae3b511276b560dc8806eb61b9d063.pdf	effective_date jurisdiction party term	EX-10.3 6 d281487dex103.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Solicitation Agreement (the “Agreement”) dated this 6th day of January, 2012 is entered into by and between\nMaher Albitar, M.D., an individual who resides at the address set forth on the signature page hereof (“Contractor”) and NeoGenomics Laboratories,\nInc., a Florida corporation (“NeoGenomics” and collectively with NeoGenomics, Inc, a Nevada corporation, the NeoGenomics’ parent corporation,\nthe “Company”). Hereinafter, each of the Contractor or the Company maybe referred to as a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, Contractor is a member of the Board of Directors of Health Discovery Corporation, a Georgia corporation, which specializes,\namong other things, in the field of discovering new proprietary methods for genetic and molecular laboratory testing; and\nWHEREAS, Health Discovery Corporation licensed its technology to NeoGenomics to commercialize certain cancer-related genetic and\nmolecular testing products and services pursuant to a licensing agreement; and\nWHEREAS, pursuant to such licensing agreement, Contractor agreed to provide full-time services to NeoGenomics in order to assist with\nsuch commercialization activities; and\nWHEREAS, NeoGenomics has appointed Contractor as its Chief Medical Officer; and\nWHEREAS, NeoGenomics and Albitar Oncology Consulting, LLC, a Delaware limited liability corporation solely owned by Contractor\n(“Medical Professional Corporation” or “MPC”), have entered into that certain Medical Services Agreement of even date herewith, which specifies\nhow NeoGenomics will work with MPC and Contractor, on a full-time basis to pursue business opportunities in the cancer-related genetic and\nmolecular testing market (the “Medical Services Agreement”) and that certain Confidentiality, Title To Work Product and Non-Solicit Agreement\nof even date herewith (the “Work Product Agreement”); and\nWHEREAS, Contractor will provide professional services to NeoGenomics through MPC and derive economic benefit from NeoGenomics\nthrough MPC; and\nWHEREAS, Contractor has also been awarded non-qualified stock options and warrants of the Company as part of the overall business\nrelationship with the Company; and\nWHEREAS, the Company will be providing MPC and Contractor with access to certain confidential and competitive information about\nNeoGenomics’ new product development plans, business and clients as part of the business arrangement with MPC; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nContractor enter into this Agreement as part of the Medical Services Agreement; and\nWHEREAS, Contractor acknowledges that Company will disclose certain Company confidential and proprietary information, trade secrets\nand customer and supplier relationships and desires to establish and maintain a business relationship with the Company and as part of such business\nrelationship desires to enter into this Agreement with the Company.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n1\nNow, therefore, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency\nof which is hereby acknowledged by Contractor, the Parties agree as follows:\n1. Term. The parties agree that the term of this agreement is effective upon execution and shall survive and continue to be in force and effect for\ntwo years following the earlier of a) the termination of any employment or independent contractor relationship between the Contractor and the MPC,\nwhether termination is by the MPC with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Contractor, b) the date\non which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and\nthe Company or any entity that is wholly or partially owned by the Company (all of such entities being hereinafter referred to as “Affiliated\nEntities”). The aforementioned period during which this Agreement will remain in effect shall hereinafter be referred to as the “Term”.\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other tangible materials containing such information, Customer lists and names and\nother information, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including existing and entry into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company’s operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any Affiliated Entity, which Contractor acknowledges and agrees has been compiled by the Company’s expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company or any Affiliated Entity to Contractor or developed by the Contractor on behalf of the Company or any\nAffiliate Entity as Work Product (as defined in Paragraph 7) are expressly included within the definition of “Confidential Information.” The Parties\nfurther agree that the fact the Company or any Affiliated Entity may be seeking to complete a business transaction is “Confidential Information”\nwithin the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from Confidential Information.\nNotwithstanding anything contained herein to the contrary, Confidential Information does not include any information which is generally known to\nthird parties in the industry.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and last\nname or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D . number, social insurance\nnumber, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n2\nd. The term “Customer” shall mean any person or entity, the identity and contact information of which is kept confidential by the Company,\nwhich has purchased or ordered goods, products or services from the Company, entered into any contract for products or services with the Company,\nand/or entered into any contract for the distribution of any Products or services with the Company within the one (1) year immediately preceding a)\nthe termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the date on which the Contractor\nceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and the Company or any\nAffiliate Entity of the Company. Contractor acknowledges and agrees that the Company’s Customers, Customer relationships and Customer contact\ninformation have been compiled by the Company and will continue to be compiled by the Company at the expenditure of a great amount of time,\nmoney, expense and effort, and that the Company goes to considerable lengths and efforts to protect all such Customer information, and that such\ninformation is not readily available from public sources or known to third parties in the industry.\ne. The term “Prospective Customer” shall mean any person or entity, the identity and contact information of which is kept confidential by the\nCompany, which has evidenced an intention to engage in business to purchase or order goods, Products or services from the Company, has\nevidenced an intent to enter into any contract for Products or services with the Company, and/or has evidenced an intent to enter into any contract for\nthe distribution of any Products or services with the Company, (which such intention(s) shall be stated in writing) within the one (1) year\nimmediately preceding a) the termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the\ndate on which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC\nand the Company or any Affiliate Entity of the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Contractor either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of performing cancer-related research and development activities associated with genetic and\nmolecular laboratory testing and providing cancer-related genetic and molecular laboratory testing products and services for profit, including, but not\nlimited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, polymerase chain reaction (“PCR”)\ntesting, and other molecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\ni. The term “Full-time” should not exclude the contractor from continuing his work as a Director on the Board and a Consultant to Health\nDiscovery Corp (HDC) as long as this work is not cancer or hematology-related.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Contractor agrees that at all times during the term\nof this Agreement and after the termination of Medical Services Agreement for as long as such information remains non-public information, the\nContractor shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible or\nintangible, concerning the Company or any Affiliated Entities and their business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her services to the Company or any Affiliated Entity and for no other purpose, (iii) take\nCONTRACTOR’S INITIALS\n/s/ M.A.\n3\nall precautions necessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties,\nwithout the prior written consent of the Company or any Affiliated Entity, (iv) observe all security policies implemented by the Company or any\nAffiliated Entity from time to time with respect to the Confidential Information, and (v) not use or disclose, directly or indirectly, as an individual or\nas a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other\nperson, partnership, firm, corporation, association or other legal entity, any Confidential Information, unless expressly permitted by this Agreement.\nContractor agrees that protection of the Company’s and any Affiliated Entity’s Confidential Information constitutes a legitimate business interest\njustifying the restrictive covenants contained herein. Contractor further agrees that the restrictive covenants contained herein are reasonably\nnecessary to protect the Company’s and any Affiliated Entity’s legitimate business interest in preserving its Confidential Information. In addition,\nContractor will not view or access any PI or PHI unless required and authorized by the Company to do so. Contractor acknowledges that he/she shall\nbear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nb. In the event that the Contractor is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Contractor shall give\nthe Company or any Affiliated Entities at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential\nInformation and shall reasonably cooperate with the Company or any Affiliated Entities in limiting disclosure and obtaining suitable confidentiality\nprotections.\nc. Contractor acknowledge(s) that this “Confidential Information” is of value to the Company and/or any Affiliated Entities by providing them\nwith a competitive advantage over their competitors, is not generally known to competitors of the Company, and is not intended by the Company or\nany Affiliated Entities for general dissemination. Contractor acknowledges that this “Confidential Information” derives independent economic value,\nactual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain\neconomic value from its disclosure or use, and is the subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all\n“Confidential Information” under this Agreement constitutes “Trade Secrets” under both Section 688.002 and Chapter 812 of the Florida Statutes\nand California’s Uniform Trade Secrets Act, Cal. Civ. Code section 3426 et seq.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Contractor shall limit disclosure of pertinent Confidential\nInformation to Contractor’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Contractor ’s relationship with the Company.\nContractor agrees to show this Agreement to any Representatives and Contractor agrees that Paragraph 3 of this Agreement shall bind all such\nRepresentative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Contractor is\nthe exclusive property of the Company and/or its Affiliated Entities and must be returned to the Company and/or its Affiliated Entities in accordance\nwith the instructions of the Company and/or such Affiliated Entities either upon termination of the Medical Services Agreement or at such other time\nas is requested by the Company. Contractor agree(s) that upon the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company, Contractor shall return\nall copies, in whatever form or media, including hard copies and electronic copies, of Confidential Information to the Company and/or the Affiliated\nEntity, and Contractor shall delete any copy of the Confidential Information on any computer file or database maintained by Contractor and, if\nrequested in writing, shall certify in writing that he/she has done so. In addition to returning all information to the Company and/or any Affiliated\nEntities as described above, Contractor will destroy any analysis, notes, work product or\nCONTRACTOR’S INITIALS\n/s/ M.A.\n4\nother materials relating to or derived from the Confidential Information. Any intentional or unauthorized retention of Confidential Information may\nconstitute “misappropriation” as such term is defined in both Chapter 772 of the Florida Statutes and Cal. Civ. Code section 3426.1(b).\n6. Restrictive Covenant. The Company and its Affiliated Entities are engaged in the business of performing cancer-related research and\ndevelopment activities associated with genetic and molecular laboratory testing and providing cancer-related genetic and molecular laboratory\ntesting products and services to oncologists, urologists, pathologists, physicians, hospitals, and other medical laboratories. The covenants contained\nin this Paragraph 8 (the “Restrictive Covenants”) are given and made by Contractor to induce the Company to enter into the Medical Services\nAgreement and to protect the Confidential Information of the Company, and Contractor acknowledges sufficiency of consideration for these\nRestrictive Covenants. Contractor expressly covenants and agrees that, during the time the Management Services Agreement is in effect between the\nMPC and the Company and for a period of two years following the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company (such period of time is\nhereinafter referred to as the “Restrictive Period”), he will abide by the following restrictive covenants, unless an exception is specifically provided,\nin writing signed by Company.\na.\nThis Section Intentionally Left Blank.\nb. Non-Competition. Contractor agrees and acknowledges that, during the Restrictive Period, he will not, directly or indirectly, for\nhimself, or on behalf of others, as an individual on Contractor’s own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any competitive services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Contractor is\nengaged or a future employer of the Contractor is selling the same or similar products and services in a Business which may compete\nwith the Company’s products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Contractor that sell different types of products or services in\nthe Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Contractor the ability to\nsupport his or her family, but rather to prevent Contractor from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Contractor leave the employment of the MPC or the Medical Services\nAgreement between the MPC and the Company be terminated for any reason, he would be prohibited from joining a for-profit cancer\ngenetics testing laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit testing laboratories not engaged in cancer genetics\nresearch and development or testing services are excluded from the restrictions in paragraph 8(b). In other words, Contractor would be\nallowed under this non-compete clause to work in any non-profit cancer genetics research and development or testing laboratory (e.g., in\nacademia) as well as in a private, for-profit testing laboratories not engaged in cancer genetics research and development or testing.\nThus, the spirit and intent of this non-competition clause is intended to prevent Contractor from acting in any of the capacities outlined in\nthis paragraph for any “for-profit” cancer genetics research and development or testing laboratories that do any one or more of the types\nof testing services defined in the definition of Business in the Restricted Area.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n5\nc.\nAcknowledgements of Contractor.\n(i) The Contractor understands and acknowledges that any material violation of this Agreement shall constitute a material breach of\nthis Agreement, and it will cause irreparable harm and loss to the Company or any Affiliated Entity for which monetary damages\nwill be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company and its\nAffiliated Entities will be entitled to the relief identified in Paragraph No. 7 below.\n(ii) The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement\n(iii) Contractor agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the\nCompany or any Affiliated Entity and to protect its Confidential Information.\n(iv) Contractor agrees that this Agreement may be enforced by the Company’s assignee or successor or any of the Affiliated Entities\nand Contractor acknowledges and agrees that assignees, successors and Affiliated Entities are intended beneficiaries of this\nAgreement.\n(v) Contractor agrees that if any portion of the Restrictive Covenants are held by an arbitration panel or court of competent\njurisdiction to be unreasonable, arbitrary or against public policy for any reason, they shall be modified accordingly as to time,\ngeographic area and line of business so as to be enforceable to the fullest extent possible as to time, area and line of business.\n(vi) Contractor agrees that any material violation of the Restrictive Covenants, in any capacity identified herein, are a material breach\nof this Agreement.\n(vii) Contractor agrees that any failure of the Company or any Affiliated Entity to enforce the Restrictive Covenants against any other\nemployee or contractor, for any reason, shall not constitute a defense to enforcement of the Restrictive Covenants against the\nContractor.\n7. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-6 are reasonable in scope\nand duration and are necessary to protect the Company or any of its Affiliated Entities. If any provision of Paragraphs 1-6 as applied to any party or\nto any circumstance is adjudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or\nenforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the\nduration of such provision or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the\nduration and/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\nAny material unauthorized use or disclosure of information in violation of Paragraphs 2-5 above or violation of the Restrictive Covenant in\nParagraph 6 shall constitute a material breach of this Agreement, may constitute misappropriation under California law, and may cause irreparable\nharm and loss to the Company or any of its Affiliated Entities for which monetary damages will be an insufficient remedy. Therefore, the Parties\nagree that in addition to any other remedy available, the Company or any of its Affiliated Entities may be entitled to all of available civil remedies,\nincluding:\na.\nTemporary and permanent injunctive relief, without being required to post a bond, restraining Contractor or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Contractor from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nCONTRACTOR’S INITIALS\n/s/ M.A.\n6\nb. Temporary and permanent injunctive relief, without being required to post a bond, restraining the Contractor from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 6, supra; and\nc.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment. Contractor further agrees to pay any and all\nlegal fees, including without limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company\nin enforcing this Agreement.\nNotwithstanding the foregoing, the Company acknowledges and agrees that the Contractor will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraphs 9c above, unless and until a court of competent jurisdiction or arbitration panel\nhas determined that the Company or any of its assignees, successors or Affiliated Entities is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company or any Affiliated Entities from pursuing any other legal or equitable\nremedies available to it for actual or threatened breach of the provisions of Paragraphs 1 – 6 of this Agreement, and the existence of any claim or\ncause of action by Contractor against the Company or any of its Affiliated Entities may not constitute a defense to the enforcement by the Company\nor any of its Affiliated Entities of any of the provisions of this Agreement. The Company and its Affiliated Entities have fully performed all\nobligations entitling it to the covenants of Paragraphs 1 – 6 of this Agreement and therefore such prohibitions are not executory or otherwise subject\nto rejection under the bankruptcy code.\n8. Duty to Disclose Agreement. Contractor acknowledges that the Company has a legitimate business purpose in the protection of its Confidential\nInformation. Contractor also recognizes and agrees that the Company has the right to such information as is reasonably necessary to inform the\nCompany whether the terms of this Agreement are being complied with. Accordingly, Contractor agrees that Contractor will promptly notify any\nnew company that Contractor provides services to of his/her obligations contained here. Contractor also will provide the Company with the identity\nof the new company that he/she is providing services to and a description of the services being provided by him/her in sufficient detail to allow the\nCompany to reasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n9. Waiver of Jury Trial. THE COMPANY AND CONTRACTOR EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO THEIR RELATIONSHIP.\n10. Governing Law, Venue and Personal Jurisdiction. Notwithstanding anything to the contrary herein, this Agreement shall be governed by,\nconstrued and enforced in accordance with the laws of state of Florida without regard to any statutory or common-law provision pertaining to\nconflicts of laws. The parties agree that courts of competent jurisdiction in Lee County, Florida and the United States District Court for the Southern\nCONTRACTOR’S INITIALS\n/s/ M.A.\n7\nDistrict of Florida shall have concurrent jurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard\nto any action arising out of any breach or alleged breach of this Agreement. Company waives personal service of any and all process upon Company\nand consents that all such service of process may be made by certified or registered mail directed to Company at the address stated in the signature\nsection of this Agreement, with service so made deemed to be completed upon actual receipt thereof. Company waives any objection to jurisdiction\nand venue of any action instituted against Company as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nContractor further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n11. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nContractor at any time. This Agreement may be assigned only by the Company to an Affiliated Entity and shall inure to the benefit of its successors\nand/or assigns.\n12. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Medical Services Agreement and the\nWork Product Agreement. This Agreement may be modified only by written instrument signed by the Company and Contractor.\n13. Construction. The Parties agree that, notwithstanding the authorship of this Agreement by the Company, such Agreement shall not be construed\nmore favorably to one Party than the other.\n14. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n15. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Contractor cannot be construed as a waiver of any\nsubsequent breach by Contractor. The refusal or failure of the Company or any Affiliated Entity to enforce any specific restrictive covenant in this\nAgreement against Contractor, or any other person for any reason, shall not constitute a defense to the enforcement by the Company or any\nAffiliated Entity of any other restrictive covenant provision set forth in this Agreement.\n16. Consideration. Contractor expressly acknowledges and agrees that the execution by the Company of the Medical Services Agreement and the\ngranting of stock options and warrants to the Contractor constitutes full, adequate and sufficient consideration to Contractor for the covenants of\nContractor under this Agreement.\n17. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n18. Acknowledgements. Contractor acknowledge(s) that he has reviewed this Agreement prior to signing it, that he knows and understands the\ncontents, purposes and effect of this Agreement, and that he has been given a signed copy of this Agreement for her records. Contractor further\nacknowledges and agrees that he has entered into this Agreement freely, without any duress or coercion.\n19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original for all intents and purposes.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n8\nSignatures appear on the following page.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n9\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy:\n/s/ Maher Albitar\n1/6/2012\nContractor Signature\nDate\nContractor Name:\nMaher Albitar, M.D.\nContractor Address:\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, #5\nFort Myers, FL 33913\nBy:\n/s/ Maher Albitar, M.D .\n1/6/2012\nCompany Signature\nDate\nName: /s/ Steven Jones\nTitle: Executive Vice President, Finance\nCONTRACTOR’S INITIALS\n/s/ M.A.\n10	EX-10.3 6 d281487dex103.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Solicitation Agreement (the “Agreement”) dated this 6th day of January, 2012 is entered into by and between\nMaher Albitar, M.D., an individual who resides at the address set forth on the signature page hereof (“Contractor”) and NeoGenomics Laboratories,\nInc., a Florida corporation (“NeoGenomics” and collectively with NeoGenomics, Inc, a Nevada corporation, the NeoGenomics’ parent corporation,\nthe “Company”). Hereinafter, each of the Contractor or the Company maybe referred to as a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, Contractor is a member of the Board of Directors of Health Discovery Corporation, a Georgia corporation, which specializes,\namong other things, in the field of discovering new proprietary methods for genetic and molecular laboratory testing; and\nWHEREAS, Health Discovery Corporation licensed its technology to NeoGenomics to commercialize certain cancer-related genetic and\nmolecular testing products and services pursuant to a licensing agreement; and\nWHEREAS, pursuant to such licensing agreement, Contractor agreed to provide full-time services to NeoGenomics in order to assist with\nsuch commercialization activities; and\nWHEREAS, NeoGenomics has appointed Contractor as its Chief Medical Officer; and\nWHEREAS, NeoGenomics and Albitar Oncology Consulting, LLC, a Delaware limited liability corporation solely owned by Contractor\n(“Medical Professional Corporation” or “MPC”), have entered into that certain Medical Services Agreement of even date herewith, which specifies\nhow NeoGenomics will work with MPC and Contractor, on a full-time basis to pursue business opportunities in the cancer-related genetic and\nmolecular testing market (the “Medical Services Agreement”) and that certain Confidentiality, Title To Work Product and Non-Solicit Agreement\nof even date herewith (the “Work Product Agreement”); and\n \nWHEREAS, Contractor will provide professional services to NeoGenomics through MPC and derive economic benefit from NeoGenomics\nthrough MPC; and\nWHEREAS, Contractor has also been awarded non-qualified stock options and warrants of the Company as part of the overall business\nrelationship with the Company; and\nWHEREAS, the Company will be providing MPC and Contractor with access to certain confidential and competitive information about\nNeoGenomics’ new product development plans, business and clients as part of the business arrangement with MPC; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nContractor enter into this Agreement as part of the Medical Services Agreement; and\nWHEREAS, Contractor acknowledges that Company will disclose certain Company confidential and proprietary information, trade secrets\nand customer and supplier relationships and desires to establish and maintain a business relationship with the Company and as part of such business\nrelationship desires to enter into this Agreement with the Company.\nCONTRACTOR’S INITIALS\n/s/ MLA.\nNow, therefore, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency\nof which is hereby acknowledged by Contractor, the Parties agree as follows:\n1. Term. The parties agree that the term of this agreement is effective upon execution and shall survive and continue to be in force and effect for\ntwo years following the earlier of a) the termination of any employment or independent contractor relationship between the Contractor and the MPC,\nwhether termination is by the MPC with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Contractor, b) the date\non which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and\nthe Company or any entity that is wholly or partially owned by the Company (all of such entities being hereinafter referred to as “Affiliated\nEntities”). The aforementioned period during which this Agreement will remain in effect shall hereinafter be referred to as the “Term”.\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other tangible materials containing such information, Customer lists and names and\nother information, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including existing and entry into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company’s operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any Affiliated Entity, which Contractor acknowledges and agrees has been compiled by the Company’s expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company or any Affiliated Entity to Contractor or developed by the Contractor on behalf of the Company or any\nAffiliate Entity as Work Product (as defined in Paragraph 7) are expressly included within the definition of “Confidential Information.” The Parties\nfurther agree that the fact the Company or any Affiliated Entity may be seeking to complete a business transaction is “Confidential Information”\nwithin the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from Confidential Information.\nNotwithstanding anything contained herein to the contrary, Confidential Information does not include any information which is generally known to\nthird parties in the industry.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and last\nname or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D. number, social insurance\nnumber, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nCONTRACTOR’S INITIALS\n/s/ MLA.\nd. The term “Customer” shall mean any person or entity, the identity and contact information of which is kept confidential by the Company,\nwhich has purchased or ordered goods, products or services from the Company, entered into any contract for products or services with the Company,\nand/or entered into any contract for the distribution of any Products or services with the Company within the one (1) year immediately preceding a)\nthe termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the date on which the Contractor\nceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and the Company or any\nAffiliate Entity of the Company. Contractor acknowledges and agrees that the Company’s Customers, Customer relationships and Customer contact\ninformation have been compiled by the Company and will continue to be compiled by the Company at the expenditure of a great amount of time,\nmoney, expense and effort, and that the Company goes to considerable lengths and efforts to protect all such Customer information, and that such\ninformation is not readily available from public sources or known to third parties in the industry.\ne. The term “Prospective Customer” shall mean any person or entity, the identity and contact information of which is kept confidential by the\nCompany, which has evidenced an intention to engage in business to purchase or order goods, Products or services from the Company, has\nevidenced an intent to enter into any contract for Products or services with the Company, and/or has evidenced an intent to enter into any contract for\nthe distribution of any Products or services with the Company, (which such intention(s) shall be stated in writing) within the one (1) year\nimmediately preceding a) the termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the\ndate on which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC\nand the Company or any Affiliate Entity of the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Contractor either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\n \nh. The term “Business” shall mean the business of performing cancer-related research and development activities associated with genetic and\nmolecular laboratory testing and providing cancer-related genetic and molecular laboratory testing products and services for profit, including, but not\nlimited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, polymerase chain reaction (“PCR”)\ntesting, and other molecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\ni. The term “Full-time” should not exclude the contractor from continuing his work as a Director on the Board and a Consultant to Health\nDiscovery Corp (HDC) as long as this work is not cancer or hematology-related.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Contractor agrees that at all times during the term\nof this Agreement and after the termination of Medical Services Agreement for as long as such information remains non-public information, the\nContractor shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible or\nintangible, concerning the Company or any Affiliated Entities and their business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her services to the Company or any Affiliated Entity and for no other purpose, (iii) take\nCONTRACTOR’S INITIALS\n/s/ MLA.\nall precautions necessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties,\nwithout the prior written consent of the Company or any Affiliated Entity, (iv) observe all security policies implemented by the Company or any\nAffiliated Entity from time to time with respect to the Confidential Information, and (v) not use or disclose, directly or indirectly, as an individual or\nas a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other\nperson, partnership, firm, corporation, association or other legal entity, any Confidential Information, unless expressly permitted by this Agreement.\nContractor agrees that protection of the Company’s and any Affiliated Entity’s Confidential Information constitutes a legitimate business interest\njustifying the restrictive covenants contained herein. Contractor further agrees that the restrictive covenants contained herein are reasonably\nnecessary to protect the Company’s and any Affiliated Entity’s legitimate business interest in preserving its Confidential Information. In addition,\nContractor will not view or access any PI or PHI unless required and authorized by the Company to do so. Contractor acknowledges that he/she shall\nbear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nb. In the event that the Contractor is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Contractor shall give\nthe Company or any Affiliated Entities at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential\nInformation and shall reasonably cooperate with the Company or any Affiliated Entities in limiting disclosure and obtaining suitable confidentiality\nprotections.\nc. Contractor acknowledge(s) that this “Confidential Information” is of value to the Company and/or any Affiliated Entities by providing them\nwith a competitive advantage over their competitors, is not generally known to competitors of the Company, and is not intended by the Company or\nany Affiliated Entities for general dissemination. Contractor acknowledges that this “Confidential Information” derives independent economic value,\nactual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain\neconomic value from its disclosure or use, and is the subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all\n“Confidential Information” under this Agreement constitutes “Trade Secrets” under both Section 688.002 and Chapter 812 of the Florida Statutes\nand California’s Uniform Trade Secrets Act, Cal. Civ. Code section 3426 et seq.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Contractor shall limit disclosure of pertinent Confidential\nInformation to Contractor’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Contractor’s relationship with the Company.\nContractor agrees to show this Agreement to any Representatives and Contractor agrees that Paragraph 3 of this Agreement shall bind all such\nRepresentative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Contractor is\nthe exclusive property of the Company and/or its Affiliated Entities and must be returned to the Company and/or its Affiliated Entities in accordance\nwith the instructions of the Company and/or such Affiliated Entities either upon termination of the Medical Services Agreement or at such other time\nas is requested by the Company. Contractor agree(s) that upon the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company, Contractor shall return\nall copies, in whatever form or media, including hard copies and electronic copies, of Confidential Information to the Company and/or the Affiliated\nEntity, and Contractor shall delete any copy of the Confidential Information on any computer file or database maintained by Contractor and, if\nrequested in writing, shall certify in writing that he/she has done so. In addition to returning all information to the Company and/or any Affiliated\nEntities as described above, Contractor will destroy any analysis, notes, work product or\nCONTRACTOR’S INITIALS\n/s/ MLA.\nother materials relating to or derived from the Confidential Information. Any intentional or unauthorized retention of Confidential Information may\nconstitute “misappropriation” as such term is defined in both Chapter 772 of the Florida Statutes and Cal. Civ. Code section 3426.1(b).\n6. Restrictive Covenant. The Company and its Affiliated Entities are engaged in the business of performing cancer-related research and\ndevelopment activities associated with genetic and molecular laboratory testing and providing cancer-related genetic and molecular laboratory\ntesting products and services to oncologists, urologists, pathologists, physicians, hospitals, and other medical laboratories. The covenants contained\nin this Paragraph 8 (the “Restrictive Covenants”) are given and made by Contractor to induce the Company to enter into the Medical Services\nAgreement and to protect the Confidential Information of the Company, and Contractor acknowledges sufficiency of consideration for these\nRestrictive Covenants. Contractor expressly covenants and agrees that, during the time the Management Services Agreement is in effect between the\nMPC and the Company and for a period of two years following the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company (such period of time is\nhereinafter referred to as the “Restrictive Period”), he will abide by the following restrictive covenants, unless an exception is specifically provided,\nin writing signed by Company.\nThis Section Intentionally I eft Blank.\nb.  Non-Competition. Contractor agrees and acknowledges that, during the Restrictive Period, he will not, directly or indirectly, for\nhimself, or on behalf of others, as an individual on Contractor’s own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any competitive services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Contractor is\nengaged or a future employer of the Contractor is selling the same or similar products and services in a Business which may compete\nwith the Company’s products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Contractor that sell different types of products or services in\nthe Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\n \nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Contractor the ability to\nsupport his or her family, but rather to prevent Contractor from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Contractor leave the employment of the MPC or the Medical Services\nAgreement between the MPC and the Company be terminated for any reason, he would be prohibited from joining a for-profit cancer\ngenetics testing laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit testing laboratories not engaged in cancer genetics\nresearch and development or testing services are excluded from the restrictions in paragraph 8(b). In other words, Contractor would be\nallowed under this non-compete clause to work in any non-profit cancer genetics research and development or testing laboratory (e.g., in\nacademia) as well as in a private, for-profit testing laboratories not engaged in cancer genetics research and development or testing.\nThus, the spirit and intent of this non-competition clause is intended to prevent Contractor from acting in any of the capacities outlined in\nthis paragraph for any “for-profit” cancer genetics research and development or testing laboratories that do any one or more of the types\nof testing services defined in the definition of Business in the Restricted Area.\nCONTRACTOR’S INITIALS\n/s/ MLA.\nc.  Acknowledgements of Contractor.\n@ The Contractor understands and acknowledges that any material violation of this Agreement shall constitute a material breach of\nthis Agreement, and it will cause irreparable harm and loss to the Company or any Affiliated Entity for which monetary damages\nwill be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company and its\nAffiliated Entities will be entitled to the relief identified in Paragraph No. 7 below.\n(i)  The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement\n(iii)  Contractor agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the\nCompany or any Affiliated Entity and to protect its Confidential Information.\n(iv)  Contractor agrees that this Agreement may be enforced by the Company’s assignee or successor or any of the Affiliated Entities\nand Contractor acknowledges and agrees that assignees, successors and Affiliated Entities are intended beneficiaries of this\nAgreement.\nW) Contractor agrees that if any portion of the Restrictive Covenants are held by an arbitration panel or court of competent\njurisdiction to be unreasonable, arbitrary or against public policy for any reason, they shall be modified accordingly as to time,\ngeographic area and line of business so as to be enforceable to the fullest extent possible as to time, area and line of business.\n(vi)  Contractor agrees that any material violation of the Restrictive Covenants, in any capacity identified herein, are a material breach\nof this Agreement.\n(vii) Contractor agrees that any failure of the Company or any Affiliated Entity to enforce the Restrictive Covenants against any other\nemployee or contractor, for any reason, shall not constitute a defense to enforcement of the Restrictive Covenants against the\nContractor.\n7. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-6 are reasonable in scope\nand duration and are necessary to protect the Company or any of its Affiliated Entities. If any provision of Paragraphs 1-6 as applied to any party or\nto any circumstance is adjudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or\nenforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the\nduration of such provision or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the\nduration and/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\nAny material unauthorized use or disclosure of information in violation of Paragraphs 2-5 above or violation of the Restrictive Covenant in\nParagraph 6 shall constitute a material breach of this Agreement, may constitute misappropriation under California law, and may cause irreparable\nharm and loss to the Company or any of its Affiliated Entities for which monetary damages will be an insufficient remedy. Therefore, the Parties\nagree that in addition to any other remedy available, the Company or any of its Affiliated Entities may be entitled to all of available civil remedies,\nincluding:\na.  Temporary and permanent injunctive relief, without being required to post a bond, restraining Contractor or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Contractor from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nCONTRACTOR’S INITIALS\n/s/ MLA.\nb.  Temporary and permanent injunctive relief, without being required to post a bond, restraining the Contractor from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 6, supra; and\nc.  Compensatory damages, including actual loss from misappropriation and unjust enrichment. Contractor further agrees to pay any and all\nlegal fees, including without limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company\nin enforcing this Agreement.\nNotwithstanding the foregoing, the Company acknowledges and agrees that the Contractor will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraphs 9c above, unless and until a court of competent jurisdiction or arbitration panel\nhas determined that the Company or any of its assignees, successors or Affiliated Entities is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company or any Affiliated Entities from pursuing any other legal or equitable\nremedies available to it for actual or threatened breach of the provisions of Paragraphs 1 — 6 of this Agreement, and the existence of any claim or\ncause of action by Contractor against the Company or any of its Affiliated Entities may not constitute a defense to the enforcement by the Company\nor any of its Affiliated Entities of any of the provisions of this Agreement. The Company and its Affiliated Entities have fully performed all\nobligations entitling it to the covenants of Paragraphs 1 — 6 of this Agreement and therefore such prohibitions are not executory or otherwise subject\nto rejection under the bankruptcy code.\n8. Duty to Disclose Agreement. Contractor acknowledges that the Company has a legitimate business purpose in the protection of its Confidential\nInformation. Contractor also recognizes and agrees that the Company has the right to such information as is reasonably necessary to inform the\nCompany whether the terms of this Agreement are being complied with. Accordingly, Contractor agrees that Contractor will promptly notify any\nnew company that Contractor provides services to of his/her obligations contained here. Contractor also will provide the Company with the identity\nof the new company that he/she is providing services to and a description of the services being provided by him/her in sufficient detail to allow the\nCompany to reasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n \n9. Waiver of Jury Trial. THE COMPANY AND CONTRACTOR EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO THEIR RELATIONSHIP.\n10. Governing L.aw, Venue and Personal Jurisdiction. Notwithstanding anything to the contrary herein, this Agreement shall be governed by,\nconstrued and enforced in accordance with the laws of state of Florida without regard to any statutory or common-law provision pertaining to\nconflicts of laws. The parties agree that courts of competent jurisdiction in Lee County, Florida and the United States District Court for the Southern\nCONTRACTOR’S INITIALS\n/s/ MLA.\nDistrict of Florida shall have concurrent jurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard\nto any action arising out of any breach or alleged breach of this Agreement. Company waives personal service of any and all process upon Company\nand consents that all such service of process may be made by certified or registered mail directed to Company at the address stated in the signature\nsection of this Agreement, with service so made deemed to be completed upon actual receipt thereof. Company waives any objection to jurisdiction\nand venue of any action instituted against Company as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nContractor further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n11. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nContractor at any time. This Agreement may be assigned only by the Company to an Affiliated Entity and shall inure to the benefit of its successors\nand/or assigns.\n12. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Medical Services Agreement and the\nWork Product Agreement. This Agreement may be modified only by written instrument signed by the Company and Contractor.\n13. Construction. The Parties agree that, notwithstanding the authorship of this Agreement by the Company, such Agreement shall not be construed\nmore favorably to one Party than the other.\n14. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n15. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Contractor cannot be construed as a waiver of any\nsubsequent breach by Contractor. The refusal or failure of the Company or any Affiliated Entity to enforce any specific restrictive covenant in this\nAgreement against Contractor, or any other person for any reason, shall not constitute a defense to the enforcement by the Company or any\nAffiliated Entity of any other restrictive covenant provision set forth in this Agreement.\n16. Consideration. Contractor expressly acknowledges and agrees that the execution by the Company of the Medical Services Agreement and the\ngranting of stock options and warrants to the Contractor constitutes full, adequate and sufficient consideration to Contractor for the covenants of\nContractor under this Agreement.\n17. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n18. Acknowledgements. Contractor acknowledge(s) that he has reviewed this Agreement prior to signing it, that he knows and understands the\ncontents, purposes and effect of this Agreement, and that he has been given a signed copy of this Agreement for her records. Contractor further\nacknowledges and agrees that he has entered into this Agreement freely, without any duress or coercion.\n \n19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original for all intents and purposes.\nCONTRACTOR’S INITIALS\n/s/ MLA.\n \nSignatures appear on the following page.\nCONTRACTOR’S INITIALS\n/s/ M.A.\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW AND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS, COVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN. By: /s/ Maher Albitar\nContractor Signature\nContractor Name: Mabher Albitar, M.D.\nContractor Address:\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, #5\nFort Myers, FL 33913\nBy: /s/ Maher Albitar, M.D. Company Signature\nName: /s/ Steven Jones\nTitle: Executive Vice President, Finance\n1/6/2012 Date\n1/6/2012\nDate\n10\nCONTRACTOR’S INITIALS\n/s/ MLA.	EX-10.3 6 d281487dex103.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Solicitation Agreement (the "Agreement") dated this 6th day of January, 2012 is entered into by and between\nMaher Albitar, M.D., an individual who resides at the address set forth on the signature page hereof ("Contractor") and NeoGenomics Laboratories,\nInc.,\na\nFlorida\ncorporation ("NeoGenomics" and collectively with NeoGenomics, Inc, a Nevada corporation, the NeoGenomics' parent corporation,\nthe "Company."). Hereinafter, each of the Contractor or the Company maybe referred to as a "Party." and together be referred to as the "Parties".\nRECITALS:\nWHEREAS, Contractor is a member of the Board of Directors of Health Discovery Corporation, a Georgia corporation, which specializes,\namong other things, in the field of discovering new proprietary methods for genetic and molecular laboratory testing; and\nWHEREAS, Health Discovery Corporation licensed its technology to NeoGenomics to commercialize certain cancer-related genetic and\nmolecular testing products and services pursuant to a licensing agreement; and\nWHEREAS, pursuant to such licensing agreement, Contractor agreed to provide full-time services to NeoGenomics in order to assist with\nsuch commercialization activities; and\nWHEREAS, NeoGenomics has appointed Contractor as its Chief Medical Officer; and\nWHEREAS, NeoGenomics and Albitar Oncology Consulting, LLC, a Delaware limited liability corporation solely owned by Contractor\n("Medical Professional Corporation" or "MPC"), have entered into that certain Medical Services Agreement of even date herewith, which specifies\nhow NeoGenomics will work with MPC and Contractor, on a full-time basis to pursue business opportunities in the cancer-related genetic and\nmolecular testing market (the "Medical Services Agreement") and that certain Confidentiality, Title To Work Product and Non-Solicit Agreement\nof even date herewith (the "Work Product Agreement"); and\nWHEREAS, Contractor will provide professional services to NeoGenomics through MPC and derive economic benefit from NeoGenomics\nthrough MPC; and\nWHEREAS, Contractor has also been awarded non-qualified stock options and warrants of the Company as part of the overall business\nrelationship with the Company; and\nWHEREAS, the Company will be providing MPC and Contractor with access to certain confidential and competitive information about\nNeoGenomics' new product development plans, business and clients as part of the business arrangement with MPC; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nContractor enter into this Agreement as part of the Medical Services Agreement; and\nWHEREAS, Contractor acknowledges that Company will disclose certain Company confidential and proprietary information, trade secrets\nand customer and supplier relationships and desires to establish and maintain a business relationship with the Company and as part of such business\nrelationship desires to enter into this Agreement with the Company.\nCONTRACTOR'S INITIALS\n/s/ M.A.\n1\nNow, therefore, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency\nof which is hereby acknowledged by Contractor, the Parties agree as follows:\n1. Term. The parties agree that the term of this agreement is effective upon execution and shall survive and continue to be in force and effect for\ntwo years following the earlier of a) the termination of any employment or independent contractor relationship between the Contractor and the MPC,\nwhether termination is by the MPC with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Contractor, b) the date\non which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and\nthe Company or any entity that is wholly or partially owned by the Company (all of such entities being hereinafter referred to as "Affiliated\nEntities"). The aforementioned period during which this Agreement will remain in effect shall hereinafter be referred to as the "Term"\n2. Definitions.\na. The term "Confidential Information" as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other tangible materials containing such information, Customer lists and names and\nother information, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including existing and entry into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company's operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any Affiliated Entity, which Contractor acknowledges and agrees has been compiled by the Company's expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company or any Affiliated Entity to Contractor or developed by the Contractor on behalf of the Company or any\nAffiliate Entity as Work Product (as defined in Paragraph 7) are expressly included within the definition of "Confidential Information." The Parties\nfurther agree that the fact the Company or any Affiliated Entity may be seeking to complete a business transaction is "Confidential Information"\nwithin the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from Confidential Information.\nNotwithstanding anything contained herein to the contrary, Confidential Information does not include any information which is generally known to\nthird parties in the industry.\nb. The term "Personal Information" ("PI") is Confidential Information and includes, but is not limited to, an individual's first name and last\nname or first initial and last name in combination with any of the following: an individual's social security number, tax I.D. number, social insurance\nnumber, driver's license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nC. The term "Protected Health Information" ("PHI") is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual's health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nCONTRACTOR'S INITIALS\n/s/ M.A.\n2\nd.\nThe term "Customer" shall mean any person or entity, the identity and contact information of which is kept confidential by the Company,\nwhich has purchased or ordered goods, products or services from the Company, entered into any contract for products or services with the Company,\nand/or entered into any contract for the distribution of any Products or services with the Company within the one (1) year immediately preceding a)\nthe termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the date on which the Contractor\nceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and the Company or any\nAffiliate Entity of the Company. Contractor acknowledges and agrees that the Company's Customers, Customer relationships and Customer contact\ninformation have been compiled by the Company and will continue to be compiled by the Company at the expenditure of a great amount of time,\nmoney, expense and effort, and that the Company goes to considerable lengths and efforts to protect all such Customer information, and that such\ninformation is not readily available from public sources or known to third parties in the industry.\ne. The term "Prospective Customer" shall mean any person or entity, the identity and contact information of which is kept confidential by the\nCompany, which has evidenced an intention to engage in business to purchase or order goods, Products or services from the Company, has\nevidenced an intent to enter into any contract for Products or services with the Company, and/or has evidenced an intent to enter into any contract for\nthe distribution of any Products or services with the Company, (which such intention(s) shall be stated in writing) within the one (1) year\nimmediately preceding a) the termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the\ndate on which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC\nand the Company or any Affiliate Entity of the Company.\nf. The term "Restricted Area" shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase "directly or indirectly." shall include the Contractor either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term "Business" shall mean the business of performing cancer-related research and development activities associated with genetic and\nmolecular laboratory testing and providing cancer-related genetic and molecular laboratory testing products and services for profit, including, but not\nlimited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization ("FISH"), morphological studies, polymerase chain reaction ("PCR")\ntesting, and other molecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\ni. The term "Full-time" should not exclude the contractor from continuing his work as a Director on the Board and a Consultant to Health\nDiscovery Corp (HDC) as long as this work is not cancer or hematology-related.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Contractor agrees that at all times during the term\nof this Agreement and after the termination of Medical Services Agreement for as long as such information remains non-public information, the\nContractor shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible\nor\nintangible, concerning the Company or any Affiliated Entities and their business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her services to the Company or any Affiliated Entity and for no other purpose, (iii) take\nCONTRACTOR'S INITIALS\n/s/ M.A.\n3\nall precautions necessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties,\nwithout the prior written consent of the Company or any Affiliated Entity, (iv) observe all security policies implemented by the Company or any\nAffiliated Entity from time to time with respect to the Confidential Information, and (v) not use or disclose, directly or indirectly, as an individual\nor\nas a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other\nperson, partnership, firm, corporation, association or other legal entity, any Confidential Information, unless expressly permitted by this Agreement.\nContractor agrees that protection of the Company's and any Affiliated Entity's Confidential Information constitutes a legitimate business interest\njustifying the restrictive covenants contained herein. Contractor further agrees that the restrictive covenants contained herein are reasonably\nnecessary to protect the Company's and any Affiliated Entity's legitimate business interest in preserving its Confidential Information. In addition,\nContractor will not view or access any PI or PHI unless required and authorized by the Company to do so. Contractor acknowledges that he/she\nshall\nbear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nb. In the event that the Contractor is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Contractor shall give\nthe Company or any Affiliated Entities at least two (2) weeks' notice, if practicable, of the basis for any such compelled disclosure of Confidential\nInformation and shall reasonably cooperate with the Company or any Affiliated Entities in limiting disclosure and obtaining suitable confidentiality\nprotections.\nC. Contractor acknowledge(s) that this "Confidential Information" is of value to the Company and/or any Affiliated Entities by providing them\nwith a competitive advantage over their competitors, is not generally known to competitors of the Company, and is not intended by the Company or\nany Affiliated Entities for general dissemination. Contractor acknowledges that this "Confidential Information" derives independent economic value,\nactual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain\neconomic value from its disclosure or use, and is the subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all\n"Confidential Information" under this Agreement constitutes "Trade Secrets" under both Section 688.002 and Chapter 812 of the Florida Statutes\nand California's Uniform Trade Secrets Act, Cal. Civ. Code section 3426 et seq.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Contractor shall limit disclosure of pertinent Confidential\nInformation to Contractor's attorney, if any ("Representative(s)"), for the sole purpose of evaluating Contractor's relationship with the Company.\nContractor agrees to show this Agreement to any Representatives and Contractor agrees that Paragraph 3 of this Agreement shall bind all such\nRepresentative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Contractor is\nthe exclusive property of the Company and/or its Affiliated Entities and must be returned to the Company and/or its Affiliated Entities in accordance\nwith the instructions of the Company and/or such Affiliated Entities either upon termination of the Medical Services Agreement or at such other time\nas is requested by the Company. Contractor agree(s) that upon the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company, Contractor shall return\nall copies, in whatever form or media, including hard copies and electronic copies, of Confidential Information to the Company and/or the Affiliated\nEntity, and Contractor shall delete any copy of the Confidential Information on any computer file or database maintained by Contractor and, if\nrequested in writing, shall certify in writing that he/she has done SO. In addition to returning all information to the Company and/or any Affiliated\nEntities as described above, Contractor will destroy any analysis, notes, work product or\nCONTRACTOR'S INITIALS\n/s/ M.A.\n4\nother materials relating to or derived from the Confidential Information. Any intentional or unauthorized retention of Confidential Information may\nconstitute "misappropriation" as such term is defined in both Chapter 772 of the Florida Statutes and Cal. Civ. Code section 3426.1(b)\n6. Restrictive Covenant. The Company and its Affiliated Entities are engaged in the business of performing cancer-related research and\ndevelopment activities associated with genetic and molecular laboratory testing and providing cancer-related genetic and molecular laboratory\ntesting products and services to oncologists, urologists, pathologists, physicians, hospitals, and other medical laboratories. The covenants contained\nin this Paragraph 8 (the "Restrictive Covenants") are given and made by Contractor to induce the Company to enter into the Medical Services\nAgreement and to protect the Confidential Information of the Company, and Contractor acknowledges sufficiency of consideration for these\nRestrictive Covenants. Contractor expressly covenants and agrees that, during the time the Management Services Agreement is in effect between the\nMPC and the Company and for a period of two years following the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company (such period of time is\nhereinafter referred to as the "Restrictive Period"), he will abide by the following restrictive covenants, unless an exception is specifically provided,\nin writing signed by Company.\na.\nThis Section Intentionally Left Blank.\nb.\nNon-Competition. Contractor agrees and acknowledges that, during the Restrictive Period, he will not, directly or indirectly, for\nhimself, or on behalf of others, as an individual on Contractor's own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any competitive services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Contractor is\nengaged or a future employer of the Contractor is selling the same or similar products and services in a Business which may compete\nwith the Company's products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Contractor that sell different types of products or services in\nthe Restricted Area SO long as such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Contractor the ability to\nsupport his or her family, but rather to prevent Contractor from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Contractor leave the employment of the MPC or the Medical Services\nAgreement between the MPC and the Company be terminated for any reason, he would be prohibited from joining a for-profit cancer\ngenetics testing laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit testing laboratories not engaged in cancer genetics\nresearch and development or testing services are excluded from the restrictions in paragraph 8(b). In other words, Contractor would be\nallowed under this non-compete clause to work in any non-profit cancer genetics research and development or testing laboratory (e.g., in\nacademia) as well as in a private, for-profit testing laboratories not engaged in cancer genetics research and development or testing.\nThus, the spirit and intent of this non-competition clause is intended to prevent Contractor from acting in any of the capacities outlined in\nthis paragraph for any "for-profit" cancer genetics research and development or testing laboratories that do any one or more of the types\nof testing services defined in the definition of Business in the Restricted Area.\nCONTRACTOR'S INITIALS\n/s/ M.A.\n5\nC.\nAcknowledgements of Contractor.\n(i)\nThe Contractor understands and acknowledges that any material violation of this Agreement shall constitute a material breach of\nthis Agreement, and it will cause irreparable harm and loss to the Company or any Affiliated Entity for which monetary damages\nwill be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company and its\nAffiliated Entities will be entitled to the relief identified in Paragraph No. 7 below.\n(ii)\nThe Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement\n(iii) Contractor agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the\nCompany or any Affiliated Entity and to protect its Confidential Information.\n(iv)\nContractor agrees that this Agreement may be enforced by the Company's assignee or successor or any of the Affiliated Entities\nand Contractor acknowledges and agrees that assignees, successors and Affiliated Entities are intended beneficiaries of this\nAgreement.\n(v)\nContractor agrees that if any portion of the Restrictive Covenants are held by an arbitration panel or court of competent\njurisdiction to be unreasonable, arbitrary or against public policy for any reason, they shall be modified accordingly as to time,\ngeographic area and line of business so as to be enforceable to the fullest extent possible as to time, area and line of business.\n(vi)\nContractor agrees that any material violation of the Restrictive Covenants, in any capacity identified herein, are a material breach\nof this Agreement.\n(vii)\nContractor agrees that any failure of the Company or any Affiliated Entity to enforce the Restrictive Covenants against any other\nemployee or contractor, for any reason, shall not constitute a defense to enforcement of the Restrictive Covenants against the\nContractor.\n7. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-6 are reasonable in scope\nand duration and are necessary to protect the Company or any of its Affiliated Entities. If any provision of Paragraphs 1-6 as applied to any party or\nto any circumstance is adjudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or\nenforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the\nduration of such provision or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the\nduration and/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\nAny material unauthorized use or disclosure of information in violation of Paragraphs 2-5 above or violation of the Restrictive Covenant in\nParagraph 6 shall constitute a material breach of this Agreement, may constitute misappropriation under California law, and may cause irreparable\nharm and loss to the Company or any of its Affiliated Entities for which monetary damages will be an insufficient remedy. Therefore, the Parties\nagree that in addition to any other remedy available, the Company or any of its Affiliated Entities may be entitled to all of available civil remedies,\nincluding:\na.\nTemporary and permanent injunctive relief, without being required to post a bond, restraining Contractor or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Contractor from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nCONTRACTOR'S INITIALS\n/s/ M.A.\n6\nb.\nTemporary and permanent injunctive relief, without being required to post a bond, restraining the Contractor from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 6, supra; and\nC.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment. Contractor further agrees to pay any and all\nlegal fees, including without limitation, all attorneys' fees, court costs, and any other related fees and/or costs incurred by the Company\nin enforcing this Agreement.\nNotwithstanding the foregoing, the Company acknowledges and agrees that the Contractor will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraphs 9c above, unless and until a court of competent jurisdiction or arbitration panel\nhas determined that the Company or any of its assignees, successors or Affiliated Entities is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company or any Affiliated Entities from pursuing any other legal or equitable\nremedies available to it for actual or threatened breach of the provisions of Paragraphs 1 - 6 of this Agreement, and the existence of any claim or\ncause of action by Contractor against the Company or any of its Affiliated Entities may not constitute a defense to the enforcement by the Company\nor any of its Affiliated Entities of any of the provisions of this Agreement. The Company and its Affiliated Entities have fully performed all\nobligations entitling it to the covenants of Paragraphs 1 - 6 of this Agreement and therefore such prohibitions are not executory or otherwise subject\nto rejection under the bankruptcy code.\n8. Duty to Disclose Agreement. Contractor acknowledges that the Company has a legitimate business purpose in the protection of its Confidential\nInformation. Contractor also recognizes and agrees that the Company has the right to such information as is reasonably necessary to inform the\nCompany whether the terms of this Agreement are being complied with. Accordingly, Contractor agrees that Contractor will promptly notify any\nnew company that Contractor provides services to of his/her obligations contained here. Contractor also will provide the Company with the identity\nof the new company that he/she is providing services to and a description of the services being provided by him/her in sufficient detail to allow the\nCompany to reasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n9.\nWaiver of Jury Trial. THE COMPANY AND CONTRACTOR EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO THEIR RELATIONSHIP.\n10. Governing Law, Venue and Personal Jurisdiction. Notwithstanding anything to the contrary herein, this Agreement shall be governed by,\nconstrued and enforced in accordance with the laws of state of Florida without regard to any statutory or common-law provision pertaining to\nconflicts of laws. The parties agree that courts of competent jurisdiction in Lee County, Florida and the United States District Court for the Southern\nCONTRACTOR'S INITIALS\n/s/ M.A.\n7\nDistrict of Florida shall have concurrent jurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard\nto any action arising out of any breach or alleged breach of this Agreement. Company waives personal service of any and all process upon Company\nand consents that all such service of process may be made by certified or registered mail directed to Company at the address stated in the signature\nsection of this Agreement, with service so made deemed to be completed upon actual receipt thereof. Company waives any objection to jurisdiction\nand venue of any action instituted against Company as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nContractor further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n11. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nContractor at any time. This Agreement may be assigned only by the Company to an Affiliated Entity and shall inure to the\nbenefit\nof\nits\nsuccessors\nand/or assigns.\n12. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Medical Services Agreement and the\nWork Product Agreement. This Agreement may be modified only by written instrument signed by the Company and Contractor.\n13. Construction. The Parties agree that, notwithstanding the authorship of this Agreement by the Company, such Agreement shall not be construed\nmore favorably to one Party than the other.\n14. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n15. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Contractor cannot be construed as a waiver of any\nsubsequent breach by Contractor. The refusal or failure of the Company or any Affiliated Entity to enforce any specific restrictive covenant in this\nAgreement against Contractor, or any other person for any reason, shall not constitute a defense to the enforcement by the Company or any\nAffiliated Entity of any other restrictive covenant provision set forth in this Agreement.\n16. Consideration. Contractor expressly acknowledges and agrees that the execution by the Company of the Medical Services Agreement and the\ngranting of stock options and warrants to the Contractor constitutes full, adequate and sufficient consideration to Contractor for the covenants of\nContractor under this Agreement.\n17. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n18. Acknowledgements. Contractor acknowledge(s) that he has reviewed this Agreement prior to signing it, that he knows and understands the\ncontents, purposes and effect of this Agreement, and that he has been given a signed copy of this Agreement for her records. Contractor further\nacknowledges and agrees that he has entered into this Agreement freely, without any duress or coercion.\n19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original for all intents and purposes.\nCONTRACTOR'S INITIALS\n/s/ M.A.\n8\nSignatures appear on the following page.\nCONTRACTOR'S INITIALS\n/s/ M.A.\n9\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy:\n/s/ Maher Albitar\n1/6/2012\nContractor Signature\nDate\nContractor Name:\nMaher Albitar, M.D.\nContractor Address:\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, #5\nFort Myers, FL 33913\nBy:\n/s/ Maher Albitar, M.D.\n1/6/2012\nCompany Signature\nDate\nName: /s/ Steven Jones\nTitle: Executive Vice President, Finance\nCONTRACTOR'S INITIALS\n/s/ M.A.\n10	EX-10.3 6 d281487dex103.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Solicitation Agreement (the “Agreement”) dated this 6th day of January, 2012 is entered into by and between\nMaher Albitar, M.D., an individual who resides at the address set forth on the signature page hereof (“Contractor”) and NeoGenomics Laboratories,\nInc., a Florida corporation (“NeoGenomics” and collectively with NeoGenomics, Inc, a Nevada corporation, the NeoGenomics’ parent corporation,\nthe “Company”). Hereinafter, each of the Contractor or the Company maybe referred to as a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, Contractor is a member of the Board of Directors of Health Discovery Corporation, a Georgia corporation, which specializes,\namong other things, in the field of discovering new proprietary methods for genetic and molecular laboratory testing; and\nWHEREAS, Health Discovery Corporation licensed its technology to NeoGenomics to commercialize certain cancer-related genetic and\nmolecular testing products and services pursuant to a licensing agreement; and\nWHEREAS, pursuant to such licensing agreement, Contractor agreed to provide full-time services to NeoGenomics in order to assist with\nsuch commercialization activities; and\nWHEREAS, NeoGenomics has appointed Contractor as its Chief Medical Officer; and\nWHEREAS, NeoGenomics and Albitar Oncology Consulting, LLC, a Delaware limited liability corporation solely owned by Contractor\n(“Medical Professional Corporation” or “MPC”), have entered into that certain Medical Services Agreement of even date herewith, which specifies\nhow NeoGenomics will work with MPC and Contractor, on a full-time basis to pursue business opportunities in the cancer-related genetic and\nmolecular testing market (the “Medical Services Agreement”) and that certain Confidentiality, Title To Work Product and Non-Solicit Agreement\nof even date herewith (the “Work Product Agreement”); and\nWHEREAS, Contractor will provide professional services to NeoGenomics through MPC and derive economic benefit from NeoGenomics\nthrough MPC; and\nWHEREAS, Contractor has also been awarded non-qualified stock options and warrants of the Company as part of the overall business\nrelationship with the Company; and\nWHEREAS, the Company will be providing MPC and Contractor with access to certain confidential and competitive information about\nNeoGenomics’ new product development plans, business and clients as part of the business arrangement with MPC; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nContractor enter into this Agreement as part of the Medical Services Agreement; and\nWHEREAS, Contractor acknowledges that Company will disclose certain Company confidential and proprietary information, trade secrets\nand customer and supplier relationships and desires to establish and maintain a business relationship with the Company and as part of such business\nrelationship desires to enter into this Agreement with the Company.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n1\nNow, therefore, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency\nof which is hereby acknowledged by Contractor, the Parties agree as follows:\n1. Term. The parties agree that the term of this agreement is effective upon execution and shall survive and continue to be in force and effect for\ntwo years following the earlier of a) the termination of any employment or independent contractor relationship between the Contractor and the MPC,\nwhether termination is by the MPC with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Contractor, b) the date\non which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and\nthe Company or any entity that is wholly or partially owned by the Company (all of such entities being hereinafter referred to as “Affiliated\nEntities”). The aforementioned period during which this Agreement will remain in effect shall hereinafter be referred to as the “Term”.\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other tangible materials containing such information, Customer lists and names and\nother information, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including existing and entry into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company’s operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any Affiliated Entity, which Contractor acknowledges and agrees has been compiled by the Company’s expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company or any Affiliated Entity to Contractor or developed by the Contractor on behalf of the Company or any\nAffiliate Entity as Work Product (as defined in Paragraph 7) are expressly included within the definition of “Confidential Information.” The Parties\nfurther agree that the fact the Company or any Affiliated Entity may be seeking to complete a business transaction is “Confidential Information”\nwithin the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from Confidential Information.\nNotwithstanding anything contained herein to the contrary, Confidential Information does not include any information which is generally known to\nthird parties in the industry.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and last\nname or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D . number, social insurance\nnumber, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n2\nd. The term “Customer” shall mean any person or entity, the identity and contact information of which is kept confidential by the Company,\nwhich has purchased or ordered goods, products or services from the Company, entered into any contract for products or services with the Company,\nand/or entered into any contract for the distribution of any Products or services with the Company within the one (1) year immediately preceding a)\nthe termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the date on which the Contractor\nceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and the Company or any\nAffiliate Entity of the Company. Contractor acknowledges and agrees that the Company’s Customers, Customer relationships and Customer contact\ninformation have been compiled by the Company and will continue to be compiled by the Company at the expenditure of a great amount of time,\nmoney, expense and effort, and that the Company goes to considerable lengths and efforts to protect all such Customer information, and that such\ninformation is not readily available from public sources or known to third parties in the industry.\ne. The term “Prospective Customer” shall mean any person or entity, the identity and contact information of which is kept confidential by the\nCompany, which has evidenced an intention to engage in business to purchase or order goods, Products or services from the Company, has\nevidenced an intent to enter into any contract for Products or services with the Company, and/or has evidenced an intent to enter into any contract for\nthe distribution of any Products or services with the Company, (which such intention(s) shall be stated in writing) within the one (1) year\nimmediately preceding a) the termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the\ndate on which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC\nand the Company or any Affiliate Entity of the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Contractor either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of performing cancer-related research and development activities associated with genetic and\nmolecular laboratory testing and providing cancer-related genetic and molecular laboratory testing products and services for profit, including, but not\nlimited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, polymerase chain reaction (“PCR”)\ntesting, and other molecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\ni. The term “Full-time” should not exclude the contractor from continuing his work as a Director on the Board and a Consultant to Health\nDiscovery Corp (HDC) as long as this work is not cancer or hematology-related.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Contractor agrees that at all times during the term\nof this Agreement and after the termination of Medical Services Agreement for as long as such information remains non-public information, the\nContractor shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible or\nintangible, concerning the Company or any Affiliated Entities and their business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her services to the Company or any Affiliated Entity and for no other purpose, (iii) take\nCONTRACTOR’S INITIALS\n/s/ M.A.\n3\nall precautions necessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties,\nwithout the prior written consent of the Company or any Affiliated Entity, (iv) observe all security policies implemented by the Company or any\nAffiliated Entity from time to time with respect to the Confidential Information, and (v) not use or disclose, directly or indirectly, as an individual or\nas a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other\nperson, partnership, firm, corporation, association or other legal entity, any Confidential Information, unless expressly permitted by this Agreement.\nContractor agrees that protection of the Company’s and any Affiliated Entity’s Confidential Information constitutes a legitimate business interest\njustifying the restrictive covenants contained herein. Contractor further agrees that the restrictive covenants contained herein are reasonably\nnecessary to protect the Company’s and any Affiliated Entity’s legitimate business interest in preserving its Confidential Information. In addition,\nContractor will not view or access any PI or PHI unless required and authorized by the Company to do so. Contractor acknowledges that he/she shall\nbear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nb. In the event that the Contractor is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Contractor shall give\nthe Company or any Affiliated Entities at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential\nInformation and shall reasonably cooperate with the Company or any Affiliated Entities in limiting disclosure and obtaining suitable confidentiality\nprotections.\nc. Contractor acknowledge(s) that this “Confidential Information” is of value to the Company and/or any Affiliated Entities by providing them\nwith a competitive advantage over their competitors, is not generally known to competitors of the Company, and is not intended by the Company or\nany Affiliated Entities for general dissemination. Contractor acknowledges that this “Confidential Information” derives independent economic value,\nactual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain\neconomic value from its disclosure or use, and is the subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all\n“Confidential Information” under this Agreement constitutes “Trade Secrets” under both Section 688.002 and Chapter 812 of the Florida Statutes\nand California’s Uniform Trade Secrets Act, Cal. Civ. Code section 3426 et seq.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Contractor shall limit disclosure of pertinent Confidential\nInformation to Contractor’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Contractor ’s relationship with the Company.\nContractor agrees to show this Agreement to any Representatives and Contractor agrees that Paragraph 3 of this Agreement shall bind all such\nRepresentative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Contractor is\nthe exclusive property of the Company and/or its Affiliated Entities and must be returned to the Company and/or its Affiliated Entities in accordance\nwith the instructions of the Company and/or such Affiliated Entities either upon termination of the Medical Services Agreement or at such other time\nas is requested by the Company. Contractor agree(s) that upon the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company, Contractor shall return\nall copies, in whatever form or media, including hard copies and electronic copies, of Confidential Information to the Company and/or the Affiliated\nEntity, and Contractor shall delete any copy of the Confidential Information on any computer file or database maintained by Contractor and, if\nrequested in writing, shall certify in writing that he/she has done so. In addition to returning all information to the Company and/or any Affiliated\nEntities as described above, Contractor will destroy any analysis, notes, work product or\nCONTRACTOR’S INITIALS\n/s/ M.A.\n4\nother materials relating to or derived from the Confidential Information. Any intentional or unauthorized retention of Confidential Information may\nconstitute “misappropriation” as such term is defined in both Chapter 772 of the Florida Statutes and Cal. Civ. Code section 3426.1(b).\n6. Restrictive Covenant. The Company and its Affiliated Entities are engaged in the business of performing cancer-related research and\ndevelopment activities associated with genetic and molecular laboratory testing and providing cancer-related genetic and molecular laboratory\ntesting products and services to oncologists, urologists, pathologists, physicians, hospitals, and other medical laboratories. The covenants contained\nin this Paragraph 8 (the “Restrictive Covenants”) are given and made by Contractor to induce the Company to enter into the Medical Services\nAgreement and to protect the Confidential Information of the Company, and Contractor acknowledges sufficiency of consideration for these\nRestrictive Covenants. Contractor expressly covenants and agrees that, during the time the Management Services Agreement is in effect between the\nMPC and the Company and for a period of two years following the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company (such period of time is\nhereinafter referred to as the “Restrictive Period”), he will abide by the following restrictive covenants, unless an exception is specifically provided,\nin writing signed by Company.\na.\nThis Section Intentionally Left Blank.\nb. Non-Competition. Contractor agrees and acknowledges that, during the Restrictive Period, he will not, directly or indirectly, for\nhimself, or on behalf of others, as an individual on Contractor’s own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any competitive services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Contractor is\nengaged or a future employer of the Contractor is selling the same or similar products and services in a Business which may compete\nwith the Company’s products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Contractor that sell different types of products or services in\nthe Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Contractor the ability to\nsupport his or her family, but rather to prevent Contractor from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Contractor leave the employment of the MPC or the Medical Services\nAgreement between the MPC and the Company be terminated for any reason, he would be prohibited from joining a for-profit cancer\ngenetics testing laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit testing laboratories not engaged in cancer genetics\nresearch and development or testing services are excluded from the restrictions in paragraph 8(b). In other words, Contractor would be\nallowed under this non-compete clause to work in any non-profit cancer genetics research and development or testing laboratory (e.g., in\nacademia) as well as in a private, for-profit testing laboratories not engaged in cancer genetics research and development or testing.\nThus, the spirit and intent of this non-competition clause is intended to prevent Contractor from acting in any of the capacities outlined in\nthis paragraph for any “for-profit” cancer genetics research and development or testing laboratories that do any one or more of the types\nof testing services defined in the definition of Business in the Restricted Area.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n5\nc.\nAcknowledgements of Contractor.\n(i) The Contractor understands and acknowledges that any material violation of this Agreement shall constitute a material breach of\nthis Agreement, and it will cause irreparable harm and loss to the Company or any Affiliated Entity for which monetary damages\nwill be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company and its\nAffiliated Entities will be entitled to the relief identified in Paragraph No. 7 below.\n(ii) The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement\n(iii) Contractor agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the\nCompany or any Affiliated Entity and to protect its Confidential Information.\n(iv) Contractor agrees that this Agreement may be enforced by the Company’s assignee or successor or any of the Affiliated Entities\nand Contractor acknowledges and agrees that assignees, successors and Affiliated Entities are intended beneficiaries of this\nAgreement.\n(v) Contractor agrees that if any portion of the Restrictive Covenants are held by an arbitration panel or court of competent\njurisdiction to be unreasonable, arbitrary or against public policy for any reason, they shall be modified accordingly as to time,\ngeographic area and line of business so as to be enforceable to the fullest extent possible as to time, area and line of business.\n(vi) Contractor agrees that any material violation of the Restrictive Covenants, in any capacity identified herein, are a material breach\nof this Agreement.\n(vii) Contractor agrees that any failure of the Company or any Affiliated Entity to enforce the Restrictive Covenants against any other\nemployee or contractor, for any reason, shall not constitute a defense to enforcement of the Restrictive Covenants against the\nContractor.\n7. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-6 are reasonable in scope\nand duration and are necessary to protect the Company or any of its Affiliated Entities. If any provision of Paragraphs 1-6 as applied to any party or\nto any circumstance is adjudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or\nenforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the\nduration of such provision or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the\nduration and/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\nAny material unauthorized use or disclosure of information in violation of Paragraphs 2-5 above or violation of the Restrictive Covenant in\nParagraph 6 shall constitute a material breach of this Agreement, may constitute misappropriation under California law, and may cause irreparable\nharm and loss to the Company or any of its Affiliated Entities for which monetary damages will be an insufficient remedy. Therefore, the Parties\nagree that in addition to any other remedy available, the Company or any of its Affiliated Entities may be entitled to all of available civil remedies,\nincluding:\na.\nTemporary and permanent injunctive relief, without being required to post a bond, restraining Contractor or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Contractor from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nCONTRACTOR’S INITIALS\n/s/ M.A.\n6\nb. Temporary and permanent injunctive relief, without being required to post a bond, restraining the Contractor from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 6, supra; and\nc.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment. Contractor further agrees to pay any and all\nlegal fees, including without limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company\nin enforcing this Agreement.\nNotwithstanding the foregoing, the Company acknowledges and agrees that the Contractor will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraphs 9c above, unless and until a court of competent jurisdiction or arbitration panel\nhas determined that the Company or any of its assignees, successors or Affiliated Entities is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company or any Affiliated Entities from pursuing any other legal or equitable\nremedies available to it for actual or threatened breach of the provisions of Paragraphs 1 – 6 of this Agreement, and the existence of any claim or\ncause of action by Contractor against the Company or any of its Affiliated Entities may not constitute a defense to the enforcement by the Company\nor any of its Affiliated Entities of any of the provisions of this Agreement. The Company and its Affiliated Entities have fully performed all\nobligations entitling it to the covenants of Paragraphs 1 – 6 of this Agreement and therefore such prohibitions are not executory or otherwise subject\nto rejection under the bankruptcy code.\n8. Duty to Disclose Agreement. Contractor acknowledges that the Company has a legitimate business purpose in the protection of its Confidential\nInformation. Contractor also recognizes and agrees that the Company has the right to such information as is reasonably necessary to inform the\nCompany whether the terms of this Agreement are being complied with. Accordingly, Contractor agrees that Contractor will promptly notify any\nnew company that Contractor provides services to of his/her obligations contained here. Contractor also will provide the Company with the identity\nof the new company that he/she is providing services to and a description of the services being provided by him/her in sufficient detail to allow the\nCompany to reasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n9. Waiver of Jury Trial. THE COMPANY AND CONTRACTOR EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO THEIR RELATIONSHIP.\n10. Governing Law, Venue and Personal Jurisdiction. Notwithstanding anything to the contrary herein, this Agreement shall be governed by,\nconstrued and enforced in accordance with the laws of state of Florida without regard to any statutory or common-law provision pertaining to\nconflicts of laws. The parties agree that courts of competent jurisdiction in Lee County, Florida and the United States District Court for the Southern\nCONTRACTOR’S INITIALS\n/s/ M.A.\n7\nDistrict of Florida shall have concurrent jurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard\nto any action arising out of any breach or alleged breach of this Agreement. Company waives personal service of any and all process upon Company\nand consents that all such service of process may be made by certified or registered mail directed to Company at the address stated in the signature\nsection of this Agreement, with service so made deemed to be completed upon actual receipt thereof. Company waives any objection to jurisdiction\nand venue of any action instituted against Company as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nContractor further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n11. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nContractor at any time. This Agreement may be assigned only by the Company to an Affiliated Entity and shall inure to the benefit of its successors\nand/or assigns.\n12. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Medical Services Agreement and the\nWork Product Agreement. This Agreement may be modified only by written instrument signed by the Company and Contractor.\n13. Construction. The Parties agree that, notwithstanding the authorship of this Agreement by the Company, such Agreement shall not be construed\nmore favorably to one Party than the other.\n14. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n15. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Contractor cannot be construed as a waiver of any\nsubsequent breach by Contractor. The refusal or failure of the Company or any Affiliated Entity to enforce any specific restrictive covenant in this\nAgreement against Contractor, or any other person for any reason, shall not constitute a defense to the enforcement by the Company or any\nAffiliated Entity of any other restrictive covenant provision set forth in this Agreement.\n16. Consideration. Contractor expressly acknowledges and agrees that the execution by the Company of the Medical Services Agreement and the\ngranting of stock options and warrants to the Contractor constitutes full, adequate and sufficient consideration to Contractor for the covenants of\nContractor under this Agreement.\n17. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n18. Acknowledgements. Contractor acknowledge(s) that he has reviewed this Agreement prior to signing it, that he knows and understands the\ncontents, purposes and effect of this Agreement, and that he has been given a signed copy of this Agreement for her records. Contractor further\nacknowledges and agrees that he has entered into this Agreement freely, without any duress or coercion.\n19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original for all intents and purposes.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n8\nSignatures appear on the following page.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n9\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy:\n/s/ Maher Albitar\n1/6/2012\nContractor Signature\nDate\nContractor Name:\nMaher Albitar, M.D.\nContractor Address:\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, #5\nFort Myers, FL 33913\nBy:\n/s/ Maher Albitar, M.D .\n1/6/2012\nCompany Signature\nDate\nName: /s/ Steven Jones\nTitle: Executive Vice President, Finance\nCONTRACTOR’S INITIALS\n/s/ M.A.\n10
03efbda01358533c167ca9b1e6d72051.pdf	effective_date jurisdiction party term	EX-10.26 26 ex10-26.txt NON-CIRCUMVENTION AND NON-DISCLOSURE AGREEMENT 1 NON-\nCIRCUMVENTION AND NON-DISCLOSURE AGREEMENT This Non-Circumvention and Non-Disclosure\nAgreement (hereinafter referred to as the "Agreement" is made this 6th of February, 1999 by and between High Speed\nNet Solutions and R. J. Seifert Enterprises. Collectively, all the parties hereto may be referred to hereinafter as the\n"Parties", shall include both disclosing party and informed party without prejudice. Whereas, the Parties wish to\nassociate themselves for the purpose of working together for their individual and common benefit. Now, therefore, in\nconsideration of the representations, agreements, promises and covenants contained herein and other good and valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. The Parties\nagree to abide by the following rules of non-circumvention and non-disclosure for a period of Two years from the\neffective date hereof. Such covenant and agreement shall survive termination of this Agreement for any reason\nwhatsoever. a) Each Party, for itself and its associates as defined below, represents and warrants that it shall not conduct\nbusiness with any sources or contacts, or said source's or contact's associates as defined below, that are originally made\nknown and/or available by another Party hereto, at any time or in any manner, without the express written permission\n(not to be unreasonably withheld) of the Party who made the source(s) known and/or available. b) For purposes of this\nAgreement, the term "associates" or "contacts" shall be defined as: in the case of a business entity its officers, directors,\naffiliates, subsidiaries, associated entities, and any other business entity in which the business entity owns five percent\n(5%) or more of the outstanding equity interest. c) The Parties will maintain complete confidentiality regarding this\nAgreement and all transactions occurring thereunder, each other's business, business sources and affiliates and each\nother's propriety knowledge and know-how, and will disclose such information only pursuant to the express written\npermission of the party who made such information available save where such information deemed to be in the public\ndomain or under the order of a competent Court or Government Agency. d) This Agreement and each additional\nagreement concluded or written or verbal disclosure made between the Parties, shall be kept confidential and is not to be\nreproduced, communicated or distributed in any manner whatsoever except on a "need to know" basis to persons directly\ninvolved with the closing of any transaction contemplated between the Parties, or legal counsel of a Party. e) It is\nunderstood and agreed that by reason of this "Agreement" the "Parties" that are involved during the course of business\ntransactions may learn from one another, or from the 2 principals the names, addresses, telephone numbers of lenders,\nagents, brokers, clients or others hereafter referred to as "Contracts" and or "Associates". f) It is understood and agreed\nthat the "Contracts" of each party hereto are and shall be recognized as exclusive and valuable "Contracts" and that the\nparties will not directly or indirectly negotiate or participate in any transaction circumventing the party who first\nprovided the "Contract". 2. The Agreement is valid and effective for all purposes, business, communications,\nnegotiations, disclosures and transactions of whatever nature between the Parties for a period of two (2) years from the\neffective date hereof. 3. Each Party represents, warrants and covenants that all information furnished by said party, or to\nbe furnished by said Party, or to any other Party or Parties hereto is, or will be, true, complete, correct and accurate to\nbest of said Party's knowledge, ability and belief. 4. In the event of circumvention by the "Parties" involved in this\ntransaction, either directly or indirectly, it is agreed and guaranteed that a monetary penalty will be paid by the person or\npersons engaged in or circumvention. This payment will additionally include all reasonable legal expenses incurred by\nthe aggrieved party. 5. This Agreement contains the entire and complete understanding existing between the Parties of\nthe date of its execution regarding the subject matters contained herein, and all former representations, promises or\ncovenants, whether written or verbal, are null and void. 6. This Agreement may be modified only by written agreement\nduly executed by all Parties hereto. 7. This Agreement shall be binding upon, and inure to the benefit of the heirs, legal\nrepresentatives, successors, designees, and/or assigns of the Parties. The executor, administrator, or personal\nrepresentative of a deceased party shall execute and deliver any document(s) or legal instrument(s) necessary or\ndesirable to carry out the provisions hereof. 8. Any written notice required or allowed to be given hereunder shall be\ndeemed to have been duly and properly given and delivered (a) as of the date actually hand delivered to the Party to be\ncharged with receipt. 9. Any copy of this Agreement, or any other documents executed and/or signed by any of the\nParties hereto, and sent to another Party hereto by facsimile transmission carries the full force and effect as if it were the\nhand delivered original. 10. This Agreement was negotiated and prepared jointly by all Parties hereto, and each Party\nacknowledges that they have had ample opportunity to consult legal, financial and other counsel 2 3 concerning all\naspects, terms and condition of this Agreement. This Agreement may be executed in multiple counterpart copies, each of\nwhich shall be deemed a duplicate original. 11. No party shall be considered or adjudged to be in violation of this\nAgreement when the violation is due to situations beyond the said party's control, such as acts of God, civil disturbances,\ntheft, or said Party's connections having prior knowledge or possession of privileged information, contacts, or contacts\nwithout the disclosure, intervention or assistance of said party or aid Parties associates as defined herein. Essentially, the\nspirit behind this Agreement is one of mutual trust, confidence and reliance upon each party to do what is fair and\nequitable. 12. This Agreement is a full recourse agreement concluded under the laws of Pennsylvania and said forum\nshall be applicable law covering the construction, interpretation, execution, validity, enforceability, performance, and any\nother such matters in respect to this Agreement, including any breach or claim of breach hereof. 13. This Agreement\nshall be governed by law and construed to be in accordance with the laws of the State of Pennsylvania applicable to\ncontracts made and to be performed solely in such State by parties thereof. Any dispute arising out of this Agreement\nshall be adjudicated in arbitration under the rules of the American Arbitration Association. The prevailing party in any\ndispute shall be reimbursed reasonable attorneys fees. IN WITNESS WHEREOF, THE "PARTIES" HERETO HAVE\nEXECUTED THIS "AGREEMENT" ON THE DATES SET FORTH BELOW. Agreed, executed and acknowledged on\n2/9/99, 1999 /s/ Michael M. Cimino ------------------------------------------- Mike Cimino for High Speed Net Solutions /s/\nRichard Seifert 02/08/99 ------------------------------------------- Richard Seifert for R J Seifert Enterprises 3	EX-10.26 26 ex10-26.txt NON-CIRCUMVENTION AND NON-DISCLOSURE AGREEMENT 1 NON-\nCIRCUMVENTION AND NON-DISCLOSURE AGREEMENT This Non-Circumvention and Non-Disclosure\nAgreement (hereinafter referred to as the "Agreement" is made this 6th of February, 1999 by and between High Speed\nNet Solutions and R. J. Seifert Enterprises. Collectively, all the parties hereto may be referred to hereinafter as the\n"Parties", shall include both disclosing party and informed party without prejudice. Whereas, the Parties wish to\nassociate themselves for the purpose of working together for their individual and common benefit. Now, therefore, in\nconsideration of the representations, agreements, promises and covenants contained herein and other good and valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. The Parties\nagree to abide by the following rules of non-circumvention and non-disclosure for a period of Two years from the\neffective date hereof. Such covenant and agreement shall survive termination of this Agreement for any reason\nwhatsoever. a) Each Party, for itself and its associates as defined below, represents and warrants that it shall not conduct\nbusiness with any sources or contacts, or said source's or contact's associates as defined below, that are originally made\nknown and/or available by another Party hereto, at any time or in any manner, without the express written permission\n(not to be unreasonably withheld) of the Party who made the source(s) known and/or available. b) For purposes of this\nAgreement, the term "associates" or "contacts" shall be defined as: in the case of a business entity its officers, directors,\naffiliates, subsidiaries, associated entities, and any other business entity in which the business entity owns five percent\n(5%) or more of the outstanding equity interest. c) The Parties will maintain complete confidentiality regarding this\nAgreement and all transactions occurring thereunder, each other's business, business sources and affiliates and each\nother's propriety knowledge and know-how, and will disclose such information only pursuant to the express written\npermission of the party who made such information available save where such information deemed to be in the public\ndomain or under the order of a competent Court or Government Agency. d) This Agreement and each additional\nagreement concluded or written or verbal disclosure made between the Parties, shall be kept confidential and is not to be\nreproduced, communicated or distributed in any manner whatsoever except on a "need to know" basis to persons directly\ninvolved with the closing of any transaction contemplated between the Parties, or legal counsel of a Party. e) It is\nunderstood and agreed that by reason of this "Agreement" the "Parties" that are involved during the course of business\ntransactions may learn from one another, or from the 2 principals the names, addresses, telephone numbers of lenders,\nagents, brokers, clients or others hereafter referred to as "Contracts" and or "Associates". f) It is understood and agreed\nthat the "Contracts" of each party hereto are and shall be recognized as exclusive and valuable "Contracts" and that the\nparties will not directly or indirectly negotiate or participate in any transaction circumventing the party who first\nprovided the "Contract". 2. The Agreement is valid and effective for all purposes, business, communications,\nnegotiations, disclosures and transactions of whatever nature between the Parties for a period of two (2) years from the\neffective date hereof. 3. Each Party represents, warrants and covenants that all information furnished by said party, or to\nbe furnished by said Party, or to any other Party or Parties hereto is, or will be, true, complete, correct and accurate to\nbest of said Party's knowledge, ability and belief. 4. In the event of circumvention by the "Parties" involved in this\ntransaction, either directly or indirectly, it is agreed and guaranteed that a monetary penalty will be paid by the person or\npersons engaged in or circumvention. This payment will additionally include all reasonable legal expenses incurred by\nthe aggrieved party. 5. This Agreement contains the entire and complete understanding existing between the Parties of\nthe date of its execution regarding the subject matters contained herein, and all former representations, promises or\ncovenants, whether written or verbal, are null and void. 6. This Agreement may be modified only by written agreement\nduly executed by all Parties hereto. 7. This Agreement shall be binding upon, and inure to the benefit of the heirs, legal\nrepresentatives, successors, designees, and/or assigns of the Parties. The executor, administrator, or personal\nrepresentative of a deceased party shall execute and deliver any document(s) or legal instrument(s) necessary or\ndesirable to carry out the provisions hereof. 8. Any written notice required or allowed to be given hereunder shall be\ndeemed to have been duly and properly given and delivered (a) as of the date actually hand delivered to the Party to be\ncharged with receipt. 9. Any copy of this Agreement, or any other documents executed and/or signed by any of the\nParties hereto, and sent to another Party hereto by facsimile transmission carries the full force and effect as if it were the\nhand delivered original. 10. This Agreement was negotiated and prepared jointly by all Parties hereto, and each Party\nacknowledges that they have had ample opportunity to consult legal, financial and other counsel 2 3 concerning all\naspects, terms and condition of this Agreement. This Agreement may be executed in multiple counterpart copies, each of\nwhich shall be deemed a duplicate original. 11. No party shall be considered or adjudged to be in violation of this\nAgreement when the violation is due to situations beyond the said party's control, such as acts of God, civil disturbances,\ntheft, or said Party's connections having prior knowledge or possession of privileged information, contacts, or contacts\nwithout the disclosure, intervention or assistance of said party or aid Parties associates as defined herein. Essentially, the\nspirit behind this Agreement is one of mutual trust, confidence and reliance upon each party to do what is fair and\nequitable. 12. This Agreement is a full recourse agreement concluded under the laws of Pennsylvania and said forum\nshall be applicable law covering the construction, interpretation, execution, validity, enforceability, performance, and any\nother such matters in respect to this Agreement, including any breach or claim of breach hereof. 13. This Agreement\nshall be governed by law and construed to be in accordance with the laws of the State of Pennsylvania applicable to\ncontracts made and to be performed solely in such State by parties thereof. Any dispute arising out of this Agreement\nshall be adjudicated in arbitration under the rules of the American Arbitration Association. The prevailing party in any\ndispute shall be reimbursed reasonable attorneys fees. IN WITNESS WHEREOF, THE "PARTIES" HERETO HAVE\nEXECUTED THIS "AGREEMENT" ON THE DATES SET FORTH BELOW. Agreed, executed and acknowledged on\n2/9/99, 1999 /s/ Michael M. Cimino ------==-=====mmmmmmmmm oo Mike Cimino for High Speed Net Solutions /s/\nRichard Seifert 02/08/99 -----==-=mm=mmmmm oo Richard Seifert for R J Seifert Enterprises 3	EX-10.26 26 x10-26.txt NON-CIRCUMVENTION AND NON-DISCLOSURE AGREEMENT 1 NON-\nCIRCUMVENTION AND NON-DISCLOSURE AGREEMENT This Non-Circumvention and Non-Disclosure\nAgreement (hereinafter referred to as the "Agreement" is made this 6th of February, 1999 by and between High Speed\nNet Solutions and R. J. Seifert Enterprises. Collectively, all the parties hereto may be referred to hereinafter as the\n"Parties", shall include both disclosing party and informed party without prejudice. Whereas, the Parties wish to\nassociate themselves for the purpose of working together for their individual and common benefit. Now, therefore,\nin\nconsideration of the representations, agreements, promises and covenants contained herein and other good and valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. The Parties\nagree to abide by the following rules of non-circumvention and non-disclosure for a period of Two years from\nthe\neffective date hereof. Such covenant and agreement shall survive termination of this Agreement for any reason\nwhatsoever. a) Each Party, for itself and its associates as defined below, represents and warrants that it shall not conduct\nbusiness with any sources or contacts, or said source's or contact's associates as defined below, that are originally made\nknown\nand/or\navailable\nby\nanother\nParty\nhereto,\nat\nany\ntime\nor\nin\nany\nmanner,\nwithout\nthe\nexpress\nwritten\npermission\n(not to be unreasonably withheld) of the Party who made the source(s) known and/or available. b) For purposes of this\nAgreement, the term "associates" or "contacts" shall be defined as: in the case of a business entity its officers, directors,\naffiliates subsidiaries, associated entities, and any other business entity in which the business entity owns five percent\n(5%) or more of the outstanding equity interest. c) The Parties will maintain complete confidentiality regarding this\nAgreement and all transactions occurring thereunder, each other's business, business sources and affiliates and each\nother's propriety knowledge and know-how, and will disclose such information only pursuant to the express written\npermission of the party who made such information available save where such information deemed to be in the public\ndomain or under the order of a competent Court or Government Agency. d) This Agreement and each additional\nagreement concluded or written or verbal disclosure made between the Parties, shall be kept confidential and is not to be\nreproduced, communicated or distributed in any manner whatsoever except on a "need to know" basis to persons directly\ninvolved with the closing of any transaction contemplated between the Parties, or legal counsel of a Party. e) It is\nunderstood and agreed that by reason of this "Agreement" the "Parties" that are involved during the course of business\ntransactions may learn from one another, or from the 2 principals the names, addresses, telephone numbers of lenders,\nagents, brokers, clients or others hereafter referred to as "Contracts" and or "Associates". f) It is understood and agreed\nthat the "Contracts" of each party hereto are and shall be recognized as exclusive and valuable "Contracts" and that the\nparties will not directly or indirectly negotiate or participate in any transaction circumventing the party who first\nprovided the "Contract". 2. The Agreement is valid and effective for all purposes, business, communications,\nnegotiations, disclosures and transactions of whatever nature between the Parties for a period of two (2) years\nfrom\nthe\neffective date hereof 3. Each Party represents, warrants and covenants that all information furnished by said party, or to\nbe furnished by said Party, or to any other Party or Parties hereto is, or will be, true, complete, correct and accurate to\nbest of said Party's knowledge, ability and belief. 4. In the event of circumvention by the "Parties" involved in this\ntransaction, either directly or indirectly, it is agreed and guaranteed that a monetary penalty will be paid by the person or\npersons\nengaged in or circumvention. This payment will additionally include all reasonable legal expenses incurred by\nthe aggrieved party. 5. This Agreement contains the entire and complete understanding existing between the Parties of\nthe date of its execution regarding the subject matters contained herein, and all former representations promises or\ncovenants, whether written or verbal, are null and void. 6. This Agreement may be modified only by written agreement\nduly executed by all Parties hereto. 7. This Agreement shall be binding upon, and inure to the benefit of the heirs, legal\nrepresentatives, successors, designees, and/or assigns of the Parties. The executor, administrator, or personal\nrepresentative of a deceased party shall execute and deliver any document(s) or legal instrument(s) necessary\nor\ndesirable to carry out the provisions hereof. 8. Any written notice required or allowed to be given hereunder shall be\ndeemed to have been duly and properly given and delivered (a) as of the date actually hand delivered to the Party to be\ncharged with receipt. 9. Any copy of this Agreement, or any other documents executed and/or signed by any of the\nParties hereto, and sent to another Party hereto by facsimile transmission carries the full force and effect as if it were\nthe\nhand delivered original. 10. This Agreement was negotiated and prepared jointly by all Parties hereto, and each Party\nacknowledges that they have had ample opportunity to consult legal, financial and other counsel 2 3 concerning all\naspects,\nterms\nand\ncondition\nof\nthis\nAgreement.\nThis\nAgreement\nmay\nbe\nexecuted\nin\nmultiple\ncounterpart\ncopies,\neach\nof\nwhich shall be deemed a duplicate original. 11. No party shall be considered or adjudged to be in violation of this\nAgreement when the violation is due to situations beyond the said party's control, such as acts of God, civil disturbances,\ntheft, or said Party's connections having prior knowledge or possession of privileged information, contacts, or contacts\nwithout the disclosure, intervention or assistance of said party or aid Parties associates as defined herein. Essentially, the\nspirit behind this Agreement is one of mutual trust, confidence and reliance upon each party to do what is fair and\nequitable. 12. This Agreement is a full recourse agreement concluded under the laws of Pennsylvania and said forum\nshall be applicable law covering the construction, interpretation, execution, validity, enforceability, performance,\nand\nany\nother such matters in respect to this Agreement, including any breach or claim of breach hereof. 13. This Agreement\nshall be governed by law and construed to be in accordance with the laws of the State of Pennsylvania applicable to\ncontracts made and to be performed solely in such State by parties thereof. Any dispute arising out of this Agreement\nshall be adjudicated in arbitration under the rules of the American Arbitration Association. The prevailing party in any\ndispute shall be reimbursed reasonable attorneys fees. IN WITNESS WHEREOF, THE "PARTIES" HERETO HAVE\nEXECUTED THIS "AGREEMENT" ON THE DATES SET FORTH BELOW. Agreed, executed and acknowledged on\n2/9/99, 1999 /s/ Michael M. Cimino\nMike Cimino for High Speed Net Solutions /s/\nRichard Seifert 02/08/99\nRichard Seifert for R J Seifert Enterprises 3	EX-10.26 26 ex10-26.txt NON-CIRCUMVENTION AND NON-DISCLOSURE AGREEMENT 1 NON-\nCIRCUMVENTION AND NON-DISCLOSURE AGREEMENT This Non-Circumvention and Non-Disclosure\nAgreement (hereinafter referred to as the "Agreement" is made this 6th of February, 1999 by and between High Speed\nNet Solutions and R. J. Seifert Enterprises. Collectively, all the parties hereto may be referred to hereinafter as the\n"Parties", shall include both disclosing party and informed party without prejudice. Whereas, the Parties wish to\nassociate themselves for the purpose of working together for their individual and common benefit. Now, therefore, in\nconsideration of the representations, agreements, promises and covenants contained herein and other good and valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. The Parties\nagree to abide by the following rules of non-circumvention and non-disclosure for a period of Two years from the\neffective date hereof. Such covenant and agreement shall survive termination of this Agreement for any reason\nwhatsoever. a) Each Party, for itself and its associates as defined below, represents and warrants that it shall not conduct\nbusiness with any sources or contacts, or said source's or contact's associates as defined below, that are originally made\nknown and/or available by another Party hereto, at any time or in any manner, without the express written permission\n(not to be unreasonably withheld) of the Party who made the source(s) known and/or available. b) For purposes of this\nAgreement, the term "associates" or "contacts" shall be defined as: in the case of a business entity its officers, directors,\naffiliates, subsidiaries, associated entities, and any other business entity in which the business entity owns five percent\n(5%) or more of the outstanding equity interest. c) The Parties will maintain complete confidentiality regarding this\nAgreement and all transactions occurring thereunder, each other's business, business sources and affiliates and each\nother's propriety knowledge and know-how, and will disclose such information only pursuant to the express written\npermission of the party who made such information available save where such information deemed to be in the public\ndomain or under the order of a competent Court or Government Agency. d) This Agreement and each additional\nagreement concluded or written or verbal disclosure made between the Parties, shall be kept confidential and is not to be\nreproduced, communicated or distributed in any manner whatsoever except on a "need to know" basis to persons directly\ninvolved with the closing of any transaction contemplated between the Parties, or legal counsel of a Party. e) It is\nunderstood and agreed that by reason of this "Agreement" the "Parties" that are involved during the course of business\ntransactions may learn from one another, or from the 2 principals the names, addresses, telephone numbers of lenders,\nagents, brokers, clients or others hereafter referred to as "Contracts" and or "Associates". f) It is understood and agreed\nthat the "Contracts" of each party hereto are and shall be recognized as exclusive and valuable "Contracts" and that the\nparties will not directly or indirectly negotiate or participate in any transaction circumventing the party who first\nprovided the "Contract". 2. The Agreement is valid and effective for all purposes, business, communications,\nnegotiations, disclosures and transactions of whatever nature between the Parties for a period of two (2) years from the\neffective date hereof. 3. Each Party represents, warrants and covenants that all information furnished by said party, or to\nbe furnished by said Party, or to any other Party or Parties hereto is, or will be, true, complete, correct and accurate to\nbest of said Party's knowledge, ability and belief. 4. In the event of circumvention by the "Parties" involved in this\ntransaction, either directly or indirectly, it is agreed and guaranteed that a monetary penalty will be paid by the person or\npersons engaged in or circumvention. This payment will additionally include all reasonable legal expenses incurred by\nthe aggrieved party. 5. This Agreement contains the entire and complete understanding existing between the Parties of\nthe date of its execution regarding the subject matters contained herein, and all former representations, promises or\ncovenants, whether written or verbal, are null and void. 6. This Agreement may be modified only by written agreement\nduly executed by all Parties hereto. 7. This Agreement shall be binding upon, and inure to the benefit of the heirs, legal\nrepresentatives, successors, designees, and/or assigns of the Parties. The executor, administrator, or personal\nrepresentative of a deceased party shall execute and deliver any document(s) or legal instrument(s) necessary or\ndesirable to carry out the provisions hereof. 8. Any written notice required or allowed to be given hereunder shall be\ndeemed to have been duly and properly given and delivered (a) as of the date actually hand delivered to the Party to be\ncharged with receipt. 9. Any copy of this Agreement, or any other documents executed and/or signed by any of the\nParties hereto, and sent to another Party hereto by facsimile transmission carries the full force and effect as if it were the\nhand delivered original. 10. This Agreement was negotiated and prepared jointly by all Parties hereto, and each Party\nacknowledges that they have had ample opportunity to consult legal, financial and other counsel 2 3 concerning all\naspects, terms and condition of this Agreement. This Agreement may be executed in multiple counterpart copies, each of\nwhich shall be deemed a duplicate original. 11. No party shall be considered or adjudged to be in violation of this\nAgreement when the violation is due to situations beyond the said party's control, such as acts of God, civil disturbances,\ntheft, or said Party's connections having prior knowledge or possession of privileged information, contacts, or contacts\nwithout the disclosure, intervention or assistance of said party or aid Parties associates as defined herein. Essentially, the\nspirit behind this Agreement is one of mutual trust, confidence and reliance upon each party to do what is fair and\nequitable. 12. This Agreement is a full recourse agreement concluded under the laws of Pennsylvania and said forum\nshall be applicable law covering the construction, interpretation, execution, validity, enforceability, performance, and any\nother such matters in respect to this Agreement, including any breach or claim of breach hereof. 13. This Agreement\nshall be governed by law and construed to be in accordance with the laws of the State of Pennsylvania applicable to\ncontracts made and to be performed solely in such State by parties thereof. Any dispute arising out of this Agreement\nshall be adjudicated in arbitration under the rules of the American Arbitration Association. The prevailing party in any\ndispute shall be reimbursed reasonable attorneys fees. IN WITNESS WHEREOF, THE "PARTIES" HERETO HAVE\nEXECUTED THIS "AGREEMENT" ON THE DATES SET FORTH BELOW. Agreed, executed and acknowledged on\n2/9/99, 1999 /s/ Michael M. Cimino ------------------------------------------- Mike Cimino for High Speed Net Solutions /s/\nRichard Seifert 02/08/99 ------------------------------------------- Richard Seifert for R J Seifert Enterprises 3
03fd0e629b617da00c54794a8a78b24d.pdf	effective_date jurisdiction party term	EX-7.5 2 dex75.htm AMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nExhibit 7.5\nExecution Version\nAMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement dated as of July 13, 2011 (the “Agreement”), is entered into between 99¢ Only\nStores, a California corporation (the “Company”), and Leonard Green & Partners, L.P., a Limited Partnership (“Counterparty”). Each of the\nCompany and Counterparty are referred to herein as a “Party.”\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company’s CEO, a possible negotiated\ntransaction (a “Possible Transaction”) involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nC. Counterparty and the Company on January 27, 2011 entered into a Confidentiality Agreement (the “Original Confidentiality\nAgreement”). Counterparty and the Company have agreed to certain modifications of the Original Confidentiality Agreement and wish to amend and\nrestate the Original Confidentiality Agreement in its entirety to reflect such modifications.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Affiliate” of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term “control” means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) “Representatives” means a Party’s officers, directors, employees, legal counsel, financial advisors, debt financing sources (subject to\nSection 2.8) and, in the case of\nCounterparty, any consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) “Restriction Period” means the period commencing on January 27, 2011 and ending on the date that is 18 months from January 27,\n2011.\n(d) “Review Material” means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished or made available by the Company or its Representatives to Counterparty or its Representatives relating to a Possible\nTransaction or in connection with the consideration of a Possible Transaction or otherwise relating to the Company or its business, operations,\nprospects, assets or liabilities, and any and all analyses, compilations, studies, documents, or other material prepared by Counterparty or its\nRepresentatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials (“Counterparty\nMaterials”), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes available to\nthe public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes available to\nCounterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its or its\nAffiliates’ Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data, analyses,\ndocuments or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its or its\nAffiliates’ Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a violation\nof this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way; provided,\nhowever, that Counterparty may disclose facts, terms, and conditions referred to in clause (a) above and any Review Material to those of its\nRepresentatives who need to know such information for the purpose of evaluating a Possible Transaction if, but only if, prior to being told of such\nmatters or being given access to any Review Material, the applicable Representative is informed of the confidential nature of the Review Material\nand agrees to be bound by the terms of this Agreement as if it were a party hereto.\nSection 2.2 Compelled Disclosure.\n2\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will promptly notify the Company of the existence, terms, and circumstances of\nsuch requirement(s) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement, and\n(ii) will, and will cause its Representatives to, cooperate fully with the Company in seeking a protective order or other assurance that confidential\ntreatment will be accorded to the disclosed Review Material or other such matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. If Counterparty decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the Company of that decision. In that case, or at any time upon the request of the Company, all Review Material (including all\nCounterparty Materials), including all copies thereof and all notes or other writings or documents containing any of its terms or provisions, shall be\npromptly (and in any event within five business days of the earlier of such decision or such request) returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty’s (or its Representatives’) use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction.\nCounterparty agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist between\n3\nCounterparty and the Company unless and until a final definitive agreement has been executed and delivered. Counterparty further agrees that unless\nand until a final definitive agreement regarding a transaction between the Company and Counterparty has been executed and delivered, neither the\nCompany nor Counterparty will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to a Possible Transaction by\nvirtue of this Agreement or any other written or oral expression with respect to a Possible Transaction by the Party or its Representatives, except for\nthe matters specifically agreed to by the Company and Counterparty in this Agreement. Counterparty further agrees that the Company has the right,\nin its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take place), to determine\nnot to furnish or to stop furnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with\nrespect to a transaction between the Company and Counterparty. Counterparty also agrees that (i) the Company and its Representatives shall be free\nto conduct any process for any transaction involving the Company, if and as they in their sole discretion shall determine (including, without\nlimitation, negotiating with any other interested parties and entering into a preliminary or definitive agreement without prior notice to Counterparty\nor any other person) and (ii) the Company may change any procedures relating to such process or transaction at any time without notice to\nCounterparty or any other person.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives has entered into, directly or indirectly, any\nagreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, or maintain or\ncontinue, directly or indirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives\nand, subject to and only as and to the extent permitted by the Special Committee, members of the Gold family and the Company’s CEO and their\nRepresentatives), with respect to a possible transaction involving the Company.\nSection 2.8 Financing. Except with respect to any debt financing sources that are identified in writing to Lazard (each, an “Exempt\nParty”), and, subject to and only as and to the extent permitted in writing by the Special Committee, members of the Gold family and the Company’s\nCEO, Counterparty agrees that neither it nor any of its Representatives will provide the Review Material to, or have any discussions concerning a\npossible transaction involving the Company with, any potential debt or equity financing source without the written consent of the Company. Whether\nor not any such consent is granted, Counterparty agrees that it will not, directly or indirectly, require, instruct or encourage any financial institutions\nor financing sources not to be retained by any other person in connection with a possible transaction involving the Company and, if requested,\nCounterparty shall consent to any such retention, and waive any actual or alleged conflict that may arise from any existing or past relationship with\nsuch parties, in connection with such possible transaction. Each Exempt Party shall be considered a Representative of Counterparty for all purposes\nof this Agreement.\nARTICLE 3\nCERTAIN RESTRICTIONS\n4\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company’s prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom\nCounterparty has had contact or who became known to Counterparty in connection with Counterparty’s evaluation of a Possible Transaction, or\nsolicit, induce or otherwise encourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company,\nprovided, however, that the foregoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts\nCounterparty or such Affiliate on his or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by\nCounterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions. From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will\nnot, and will not permit any of its Affiliates to, singly or as part of a group, directly or indirectly, propose to the Company or any other person any\ntransaction between Counterparty and the Company and/or the Company’s security holders or involving any of the Company’s securities or security\nholders unless the Company shall have specifically requested in writing that Counterparty makes such a proposal. Counterparty further agrees that,\nfrom and after the date hereof, until the Restriction Period expires, Counterparty will not, and will not permit any of its Affiliates to, singly or as part\nof a group, directly or indirectly, in any manner, (a) beneficially or otherwise, own (other than the shares of Company common stock owned of\nrecord (or, if and only to the extent and for the reasons disclosed in Counterparty’s Schedule 13D with respect to the Company filed prior to the date\nhereof, beneficially) as of the date hereof by Counterparty or any of its affiliated funds), acquire, agree to acquire or propose to acquire, by purchase,\nexchange, conversion or otherwise, any securities or property of the Company (other than purchases of products by any Exempt Party or purchases\nin the ordinary course of business of both Counterparty and the Company), or any interest in any indebtedness of the Company, or any rights or\noptions to acquire any such securities, property or interests or that are otherwise related to or have a value determined in whole or in part by\nreference to, or derived in whole or in part from, any such securities, property or interests, (b) except at the specific written request of Company,\npropose to enter into, directly or indirectly, any form of merger, tender or exchange offer, consolidation, change of control or other business\ncombination or other similar transaction involving the Company, (c) otherwise act to seek to control or influence the management, Board of\nDirectors or policies of the Company, (d) enter into any contract, arrangement or understanding with any person with respect to any securities of the\nCompany, including but not limited to any joint venture, loan or option agreement, put or call, guarantee of loans, guarantee of profits or division of\nlosses or profits (except with respect to any Exempt Party), (e) disclose any intention, plan or arrangement, or otherwise make any proposal or other\nstatement, inconsistent with the terms of this Agreement or (f) advise, assist or encourage any other persons in connection with any of the foregoing.\nCounterparty also agrees during such period that it will not, and will not permit any of its Affiliates to, singly or as part of a group, directly or\nindirectly, (i) request the Company (or its respective directors, officers, affiliates, employees or agents) to amend, waive or terminate any provision\nof this paragraph (including this sentence), or (ii) take any action which might require the Company to make a public announcement regarding the\npossibility of a business combination or merger involving the Company.\n5\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company’s\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\n6\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99¢ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307 -9611\nwith a copy to:\nMorrison & Foerster LLP\n555 West Fifth Avenue\nLos Angeles, CA 90013\nAttention: Jonathan T. Keen\nFax: (213) 892-5733\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd., Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L .P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n7\nSection 4.8 Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of the\nState of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9 No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\nSection 4.10 Designated Representative. Except as otherwise expressly permitted hereby, Counterparty agrees that all (i) contacts and\ncommunications with the Company or any of its Representatives regarding Review Material or the Possible Transaction, or otherwise relating to the\nCompany or its business, operations, prospects, assets or liabilities, (ii) requests for additional information from the Company or any of its\nRepresentatives, (iii) requests for on-site access or management meetings and (iv) discussions or questions regarding procedures, shall be submitted\nor directed solely to a designated representative of Lazard, or such other person, if any, as the Company may designate in writing from time to time\n(the “Designated Representative”). Without limiting the foregoing, Counterparty shall, and shall cause its Representatives to, not initiate or maintain\nany contact with any officer, director, employee or agent of the Company regarding any Review Material or otherwise relating to the Company or its\nbusiness, operations, prospects, assets or liabilities, or regarding any potential transaction involving the Company, without written consent from the\nDesignated Representative. In addition, and without limiting the foregoing, Counterparty and its Representatives shall not have any communications\n(orally or in writing or through any other means) with any member of the Gold Family or the Company’s CEO (either directly or through their\nrepresentatives or advisors) in their capacities as shareholders, other than as permitted by the Special Committee.\nThe prohibition hereunder on communicating with members of the Gold family and the Company’s CEO, in their capacities as shareholders,\nshall expire on the date three (3) weeks following the public announcement by the Special Committee that it has ceased to pursue a Possible\nTransaction or any strategic alternative for the Company, provided, that such expiration shall not otherwise affect any other provision of this\nAgreement.\n8\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n99¢ Only Stores\nBy: /s/ Marvin L. Holen\nIts: Chairman of the Special Committee\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.,\nits general partner\nBy: /s/ Michael Solomon\nIts: Partner\n9	EX-7.5 2 dex75.htm AMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nExhibit 7.5\nExecution Version\nAMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement dated as of July 13, 2011 (the “Agreement”), is entered into between 99¢ Only\nStores, a California corporation (the “Company”), and Leonard Green & Partners, L.P., a Limited Partnership (“Counterparty”). Each of the\nCompany and Counterparty are referred to herein as a “Party.”\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company’s CEO, a possible negotiated\ntransaction (a “Possible Transaction”) involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nC. Counterparty and the Company on January 27, 2011 entered into a Confidentiality Agreement (the “Original Confidentiality\nAgreement”). Counterparty and the Company have agreed to certain modifications of the Original Confidentiality Agreement and wish to amend and\nrestate the Original Confidentiality Agreement in its entirety to reflect such modifications.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Affiliate” of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term “control” means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) “Representatives” means a Party’s officers, directors, employees, legal counsel, financial advisors, debt financing sources (subject to\nSection 2.8) and, in the case of\nCounterparty, any consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) “Restriction Period” means the period commencing on January 27, 2011 and ending on the date that is 18 months from January 27,\n2011.\n(d) “Review Material” means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished or made available by the Company or its Representatives to Counterparty or its Representatives relating to a Possible\nTransaction or in connection with the consideration of a Possible Transaction or otherwise relating to the Company or its business, operations,\nprospects, assets or liabilities, and any and all analyses, compilations, studies, documents, or other material prepared by Counterparty or its\nRepresentatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials (“Counterparty\nMaterials”), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes available to\nthe public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes available to\nCounterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its or its\nAffiliates’ Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data, analyses,\ndocuments or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its or its\nAffiliates’ Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a violation\nof this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way; provided,\nhowever, that Counterparty may disclose facts, terms, and conditions referred to in clause (a) above and any Review Material to those of its\nRepresentatives who need to know such information for the purpose of evaluating a Possible Transaction if, but only if, prior to being told of such\nmatters or being given access to any Review Material, the applicable Representative is informed of the confidential nature of the Review Material\nand agrees to be bound by the terms of this Agreement as if it were a party hereto.\n \nSection 2.2 Compelled Disclosure.\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will promptly notify the Company of the existence, terms, and circumstances of\nsuch requirement(s) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement, and\n(ii) will, and will cause its Representatives to, cooperate fully with the Company in seeking a protective order or other assurance that confidential\ntreatment will be accorded to the disclosed Review Material or other such matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. If Counterparty decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the Company of that decision. In that case, or at any time upon the request of the Company, all Review Material (including all\nCounterparty Materials), including all copies thereof and all notes or other writings or documents containing any of its terms or provisions, shall be\npromptly (and in any event within five business days of the earlier of such decision or such request) returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty’s (or its Representatives’) use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\n \nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction.\nCounterparty agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist between\n3\nCounterparty and the Company unless and until a final definitive agreement has been executed and delivered. Counterparty further agrees that unless\nand until a final definitive agreement regarding a transaction between the Company and Counterparty has been executed and delivered, neither the\nCompany nor Counterparty will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to a Possible Transaction by\nvirtue of this Agreement or any other written or oral expression with respect to a Possible Transaction by the Party or its Representatives, except for\nthe matters specifically agreed to by the Company and Counterparty in this Agreement. Counterparty further agrees that the Company has the right,\nin its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take place), to determine\nnot to furnish or to stop furnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with\nrespect to a transaction between the Company and Counterparty. Counterparty also agrees that (i) the Company and its Representatives shall be free\nto conduct any process for any transaction involving the Company, if and as they in their sole discretion shall determine (including, without\nlimitation, negotiating with any other interested parties and entering into a preliminary or definitive agreement without prior notice to Counterparty\nor any other person) and (ii) the Company may change any procedures relating to such process or transaction at any time without notice to\nCounterparty or any other person.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives has entered into, directly or indirectly, any\nagreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, or maintain or\ncontinue, directly or indirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives\nand, subject to and only as and to the extent permitted by the Special Committee, members of the Gold family and the Company’s CEO and their\nRepresentatives), with respect to a possible transaction involving the Company.\nSection 2.8 Financing. Except with respect to any debt financing sources that are identified in writing to Lazard (each, an “Exempt\nParty”), and, subject to and only as and to the extent permitted in writing by the Special Committee, members of the Gold family and the Company’s\nCEO, Counterparty agrees that neither it nor any of its Representatives will provide the Review Material to, or have any discussions concerning a\npossible transaction involving the Company with, any potential debt or equity financing source without the written consent of the Company. Whether\nor not any such consent is granted, Counterparty agrees that it will not, directly or indirectly, require, instruct or encourage any financial institutions\nor financing sources not to be retained by any other person in connection with a possible transaction involving the Company and, if requested,\nCounterparty shall consent to any such retention, and waive any actual or alleged conflict that may arise from any existing or past relationship with\nsuch parties, in connection with such possible transaction. Each Exempt Party shall be considered a Representative of Counterparty for all purposes\nof this Agreement.\nARTICLE 3\nCERTAIN RESTRICTIONS\n4\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company’s prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom\nCounterparty has had contact or who became known to Counterparty in connection with Counterparty’s evaluation of a Possible Transaction, or\nsolicit, induce or otherwise encourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company,\nprovided, however, that the foregoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts\nCounterparty or such Affiliate on his or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by\nCounterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions. From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will\nnot, and will not permit any of its Affiliates to, singly or as part of a group, directly or indirectly, propose to the Company or any other person any\ntransaction between Counterparty and the Company and/or the Company’s security holders or involving any of the Company’s securities or security\nholders unless the Company shall have specifically requested in writing that Counterparty makes such a proposal. Counterparty further agrees that,\nfrom and after the date hereof, until the Restriction Period expires, Counterparty will not, and will not permit any of its Affiliates to, singly or as part\nof a group, directly or indirectly, in any manner, (a) beneficially or otherwise, own (other than the shares of Company common stock owned of\nrecord (or, if and only to the extent and for the reasons disclosed in Counterparty’s Schedule 13D with respect to the Company filed prior to the date\nhereof, beneficially) as of the date hereof by Counterparty or any of its affiliated funds), acquire, agree to acquire or propose to acquire, by purchase,\nexchange, conversion or otherwise, any securities or property of the Company (other than purchases of products by any Exempt Party or purchases\nin the ordinary course of business of both Counterparty and the Company), or any interest in any indebtedness of the Company, or any rights or\noptions to acquire any such securities, property or interests or that are otherwise related to or have a value determined in whole or in part by\nreference to, or derived in whole or in part from, any such securities, property or interests, (b) except at the specific written request of Company,\npropose to enter into, directly or indirectly, any form of merger, tender or exchange offer, consolidation, change of control or other business\ncombination or other similar transaction involving the Company, (c) otherwise act to seek to control or influence the management, Board of\nDirectors or policies of the Company, (d) enter into any contract, arrangement or understanding with any person with respect to any securities of the\nCompany, including but not limited to any joint venture, loan or option agreement, put or call, guarantee of loans, guarantee of profits or division of\nlosses or profits (except with respect to any Exempt Party), (e) disclose any intention, plan or arrangement, or otherwise make any proposal or other\nstatement, inconsistent with the terms of this Agreement or (f) advise, assist or encourage any other persons in connection with any of the foregoing.\nCounterparty also agrees during such period that it will not, and will not permit any of its Affiliates to, singly or as part of a group, directly or\nindirectly, (i) request the Company (or its respective directors, officers, affiliates, employees or agents) to amend, waive or terminate any provision\nof this paragraph (including this sentence), or (ii) take any action which might require the Company to make a public announcement regarding the\npossibility of a business combination or merger involving the Company.\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company’s\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99¢ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307-9611\nwith a copy to:\nMorrison & Foerster LLLP\n555 West Fifth Avenue\nLos Angeles, CA 90013\nAttention: Jonathan T. Keen\nFax: (213) 892-5733\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd., Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L.P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n7\nSection 4.8 Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of the\nState of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9 No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\nSection 4.10 Designated Representative. Except as otherwise expressly permitted hereby, Counterparty agrees that all (i) contacts and\ncommunications with the Company or any of its Representatives regarding Review Material or the Possible Transaction, or otherwise relating to the\nCompany or its business, operations, prospects, assets or liabilities, (ii) requests for additional information from the Company or any of its\nRepresentatives, (iii) requests for on-site access or management meetings and (iv) discussions or questions regarding procedures, shall be submitted\nor directed solely to a designated representative of Lazard, or such other person, if any, as the Company may designate in writing from time to time\n(the “Designated Representative”). Without limiting the foregoing, Counterparty shall, and shall cause its Representatives to, not initiate or maintain\nany contact with any officer, director, employee or agent of the Company regarding any Review Material or otherwise relating to the Company or its\nbusiness, operations, prospects, assets or liabilities, or regarding any potential transaction involving the Company, without written consent from the\nDesignated Representative. In addition, and without limiting the foregoing, Counterparty and its Representatives shall not have any communications\n(orally or in writing or through any other means) with any member of the Gold Family or the Company’s CEO (either directly or through their\nrepresentatives or advisors) in their capacities as shareholders, other than as permitted by the Special Committee.\nThe prohibition hereunder on communicating with members of the Gold family and the Company’s CEO, in their capacities as shareholders,\nshall expire on the date three (3) weeks following the public announcement by the Special Committee that it has ceased to pursue a Possible\nTransaction or any strategic alternative for the Company, provided, that such expiration shall not otherwise affect any other provision of this\nAgreement.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n99¢ Only Stores\nBy: /s/ Marvin L. Holen\nIts: Chairman of the Special Committee\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.,\nits general partner\nBy: /s/ Michael Solomon\nIts: Partner	EX-7.5 2 dex75.htm AMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nExhibit 7.5\nExecution Version\nAMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement dated as of July 13, 2011 (the "Agreement"), is entered into between 99 Only\nStores, a California corporation (the "Company"), and Leonard Green & Partners, L.P., a Limited Partnership ("Counterparty"). Each of the\nCompany and Counterparty are referred to herein as a "Party."\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company's CEO, a possible negotiated\ntransaction (a "Possible Transaction") involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nC. Counterparty and the Company on January 27, 2011 entered into a Confidentiality Agreement (the "Original Confidentiality\nAgreement"). Counterparty and the Company have agreed to certain modifications of the Original Confidentiality Agreement and wish to amend and\nrestate the Original Confidentiality Agreement in its entirety to reflect such modifications.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) "Affiliate" of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term "control" means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) "Representatives" means a Party's officers, directors, employees, legal counsel, financial advisors, debt financing sources (subject to\nSection 2.8) and, in the case of\nCounterparty, any consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) "Restriction Period" means the period commencing on January 27, 2011 and ending on the date that is 18 months from January\n27,\n2011.\n(d) "Review Material" means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished or made available by the Company or its Representatives to Counterparty or its Representatives relating to a Possible\nTransaction or in connection with the consideration of a Possible Transaction or otherwise relating to the Company or its business, operations,\nprospects, assets or liabilities, and any and all analyses, compilations, studies, documents, or other material prepared by Counterparty or its\nRepresentatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials ("Counterparty\nMaterials"), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes available to\nthe public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes available to\nCounterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its or its\nAffiliates' Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data, analyses,\ndocuments or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its or its\nAffiliates' Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a violation\nof this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto\nany Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way; provided,\nhowever, that Counterparty may disclose facts, terms, and conditions referred to in clause (a) above and any Review Material to those of its\nRepresentatives who need to know such information for the purpose of evaluating a Possible Transaction if, but only if, prior to being told of such\nmatters or being given access to any Review Material, the applicable Representative is informed of the confidential nature of the Review Material\nand agrees to be bound by the terms of this Agreement as if it were a party hereto.\nSection 2.2 Compelled Disclosure.\n2\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor\ninformation or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will promptly notify the Company of the existence, terms, and circumstances of\nsuch requirement(s) SO that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement, and\n(ii) will, and will cause its Representatives to, cooperate fully with the Company in seeking a protective order or other assurance that confidential\ntreatment will be accorded to the disclosed Review Material or other such matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property\nof\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. If Counterparty decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the Company of that decision. In that case, or at any time upon the request of the Company, all Review Material (including all\nCounterparty Materials), including all copies thereof and all notes or other writings or documents containing any of its terms or provisions, shall be\npromptly (and in any event within five business days of the earlier of such decision or such request) returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty.. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty's (or its Representatives') use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility. fon Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction.\nCounterparty agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist between\n3\nCounterparty and the Company unless and until a final definitive agreement has been executed and delivered. Counterparty further agrees that unless\nand until a final definitive agreement regarding a transaction between the Company and Counterparty has been executed and delivered, neither the\nCompany nor Counterparty will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to a Possible Transaction by\nvirtue of this Agreement or any other written or oral expression with respect to a Possible Transaction by the Party or its Representatives, except for\nthe matters specifically agreed to by the Company and Counterparty in this Agreement. Counterparty further agrees that the Company has the right,\nin its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take place), to determine\nnot to furnish or to stop furnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with\nrespect to a transaction between the Company and Counterparty. Counterparty also agrees that (i) the Company and its Representatives shall be free\nto conduct any process for any transaction involving the Company, if and as they in their sole discretion shall determine (including, without\nlimitation, negotiating with any other interested parties and entering into a preliminary or definitive agreement without prior notice to Counterparty\nor any other person) and (ii) the Company may change any procedures relating to such process or transaction at any time without notice to\nCounterparty or any other person.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives has entered into, directly or indirectly, any\nagreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, or maintain or\ncontinue, directly or indirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives\nand, subject to and only as and to the extent permitted by the Special Committee, members of the Gold family and the Company's CEO and their\nRepresentatives), with respect to a possible transaction involving the Company.\nSection 2.8 Financing. Except with respect to any debt financing sources that are identified in writing to Lazard (each, an "Exempt\nParty"), and, subject to and only as and to the extent permitted in writing by the Special Committee, members of the Gold family and the Company's\nCEO, Counterparty agrees that neither it nor any of its Representatives will provide the Review Material to, or have any discussions concerning a\npossible transaction involving the Company with, any potential debt or equity financing source without the written consent of the Company. Whether\nor not any such consent is granted, Counterparty agrees that it will not, directly or indirectly, require, instruct or encourage any financial institutions\nor financing sources not to be retained by any other person in connection with a possible transaction involving the Company and, if requested,\nCounterparty shall consent to any such retention, and waive any actual or alleged conflict that may arise from any existing or past relationship with\nsuch parties, in connection with such possible transaction. Each Exempt Party shall be considered a Representative of Counterparty for all purposes\nof this Agreement.\nARTICLE 3\nCERTAIN RESTRICTIONS\n4\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company's prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom\nCounterparty has had contact or who became known to Counterparty in connection with Counterparty's evaluation of a Possible Transaction, or\nsolicit, induce or otherwise encourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company,\nprovided, however, that the foregoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts\nCounterparty or such Affiliate on his or her own initiative or as a result of a general advertising and without any direct or indirect solicitation\nby\nCounterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions. From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will\nnot, and will not permit any of its Affiliates to, singly or as part of a group, directly or indirectly, propose to the Company or any other person any\ntransaction between Counterparty and the Company and/or the Company's security holders or involving any of the Company's securities or security\nholders unless the Company shall have specifically requested in writing that Counterparty makes such a proposal. Counterparty further agrees that,\nfrom and after the date hereof, until the Restriction Period expires, Counterparty will not, and will not permit any of its Affiliates to, singly or as part\nof a group, directly or indirectly, in any manner, (a) beneficially or otherwise, own (other than the shares of Company common stock owned of\nrecord (or, if and only to the extent and for the reasons disclosed in Counterparty's Schedule 13D with respect to the Company filed prior to the date\nhereof, beneficially) as of the date hereof by Counterparty or any of its affiliated funds), acquire, agree to acquire or propose to acquire, by purchase,\nexchange, conversion or otherwise, any securities or property of the Company (other than purchases of products by any Exempt Party or purchases\nin the ordinary course of business of both Counterparty and the Company), or any interest in any indebtedness of the Company, or any rights\nor\noptions to acquire any such securities, property or interests or that are otherwise related to or have a value determined in whole or in part by\nreference to, or derived in whole or in part from, any such securities, property or interests, (b) except at the specific written request of Company,\npropose to enter into, directly or indirectly, any form of merger, tender or exchange offer, consolidation, change of control or other business\ncombination or other similar transaction involving the Company, (c) otherwise act to seek to control or influence the management, Board of\nDirectors or policies of the Company, (d) enter into any contract, arrangement or understanding with any person with respect to any securities of the\nCompany, including but not limited to any joint venture, loan or option agreement, put or call, guarantee of loans, guarantee of profits or division of\nlosses or profits (except with respect to any Exempt Party), (e) disclose any intention, plan or arrangement, or otherwise make any proposal or other\nstatement, inconsistent with the terms of this Agreement or (f) advise, assist or encourage any other persons in connection with any of the foregoing.\nCounterparty also agrees during such period that it will not, and will not permit any of its Affiliates to, singly or as part of a group, directly or\nindirectly, (i) request the Company (or its respective directors, officers, affiliates, employees or agents) to amend, waive or terminate any provision\nof this paragraph (including this sentence), or (ii) take any action which might require the Company to make a public announcement regarding the\npossibility of a business combination or merger involving the Company.\n5\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company's\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate\nhaving jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability.. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\n6\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99+ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307-9611\nwith a copy to:\nMorrison & Foerster LLP\n555 West Fifth Avenue\nLos Angeles, CA 90013\nAttention: Jonathan T. Keen\nFax: (213) 892-5733\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd., Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L.P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n7\nSection 4.8 Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of the\nState of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9 No Third Party. Beneficiaries. There are no intended third party beneficiaries to this Agreement.\nSection 4.10 Designated Representative. Except as otherwise expressly permitted hereby, Counterparty agrees that all (i) contacts and\ncommunications with the Company or any of its Representatives regarding Review Material or the Possible Transaction, or otherwise relating to the\nCompany or its business, operations, prospects, assets or liabilities, (ii) requests for additional information from the Company or any of its\nRepresentatives, (iii) requests for on-site access or management meetings and (iv) discussions or questions regarding procedures, shall be submitted\nor directed solely to a designated representative of Lazard, or such other person, if any, as the Company may designate in writing from time\nto\ntime\n(the "Designated Representative"). Without limiting the foregoing, Counterparty shall, and shall cause its Representatives to, not initiate or maintain\nany contact with any officer director, employee or agent of the Company regarding any Review Material or otherwise relating to the Company or\nits\nbusiness, operations, prospects, assets or liabilities, or regarding any potential transaction involving the Company, without written consent from the\nDesignated Representative. In addition, and without limiting the foregoing, Counterparty and its Representatives shall not have any communications\n(orally or in writing or through any other means) with any member of the Gold Family or the Company's CEO (either directly or through their\nrepresentatives or advisors) in their capacities as shareholders, other than as permitted by the Special Committee.\nThe prohibition hereunder on communicating with members of the Gold family and the Company's CEO, in their capacities as shareholders,\nshall expire on the date three (3) weeks following the public announcement by the Special Committee that it has ceased to pursue a Possible\nTransaction or any strategic alternative for the Company, provided, that such expiration shall not otherwise affect any other provision of this\nAgreement.\n8\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n994 Only Stores\nBy: /s/ Marvin L. Holen\nIts: Chairman of the Special Committee\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.,\nits general partner\nBy: /s/ Michael Solomon\nIts: Partner\n9	EX-7.5 2 dex75.htm AMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nExhibit 7.5\nExecution Version\nAMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement dated as of July 13, 2011 (the “Agreement”), is entered into between 99¢ Only\nStores, a California corporation (the “Company”), and Leonard Green & Partners, L.P., a Limited Partnership (“Counterparty”). Each of the\nCompany and Counterparty are referred to herein as a “Party.”\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company’s CEO, a possible negotiated\ntransaction (a “Possible Transaction”) involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nC. Counterparty and the Company on January 27, 2011 entered into a Confidentiality Agreement (the “Original Confidentiality\nAgreement”). Counterparty and the Company have agreed to certain modifications of the Original Confidentiality Agreement and wish to amend and\nrestate the Original Confidentiality Agreement in its entirety to reflect such modifications.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Affiliate” of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term “control” means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) “Representatives” means a Party’s officers, directors, employees, legal counsel, financial advisors, debt financing sources (subject to\nSection 2.8) and, in the case of\nCounterparty, any consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) “Restriction Period” means the period commencing on January 27, 2011 and ending on the date that is 18 months from January 27,\n2011.\n(d) “Review Material” means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished or made available by the Company or its Representatives to Counterparty or its Representatives relating to a Possible\nTransaction or in connection with the consideration of a Possible Transaction or otherwise relating to the Company or its business, operations,\nprospects, assets or liabilities, and any and all analyses, compilations, studies, documents, or other material prepared by Counterparty or its\nRepresentatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials (“Counterparty\nMaterials”), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes available to\nthe public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes available to\nCounterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its or its\nAffiliates’ Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data, analyses,\ndocuments or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its or its\nAffiliates’ Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a violation\nof this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way; provided,\nhowever, that Counterparty may disclose facts, terms, and conditions referred to in clause (a) above and any Review Material to those of its\nRepresentatives who need to know such information for the purpose of evaluating a Possible Transaction if, but only if, prior to being told of such\nmatters or being given access to any Review Material, the applicable Representative is informed of the confidential nature of the Review Material\nand agrees to be bound by the terms of this Agreement as if it were a party hereto.\nSection 2.2 Compelled Disclosure.\n2\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will promptly notify the Company of the existence, terms, and circumstances of\nsuch requirement(s) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement, and\n(ii) will, and will cause its Representatives to, cooperate fully with the Company in seeking a protective order or other assurance that confidential\ntreatment will be accorded to the disclosed Review Material or other such matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. If Counterparty decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the Company of that decision. In that case, or at any time upon the request of the Company, all Review Material (including all\nCounterparty Materials), including all copies thereof and all notes or other writings or documents containing any of its terms or provisions, shall be\npromptly (and in any event within five business days of the earlier of such decision or such request) returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty’s (or its Representatives’) use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction.\nCounterparty agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist between\n3\nCounterparty and the Company unless and until a final definitive agreement has been executed and delivered. Counterparty further agrees that unless\nand until a final definitive agreement regarding a transaction between the Company and Counterparty has been executed and delivered, neither the\nCompany nor Counterparty will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to a Possible Transaction by\nvirtue of this Agreement or any other written or oral expression with respect to a Possible Transaction by the Party or its Representatives, except for\nthe matters specifically agreed to by the Company and Counterparty in this Agreement. Counterparty further agrees that the Company has the right,\nin its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take place), to determine\nnot to furnish or to stop furnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with\nrespect to a transaction between the Company and Counterparty. Counterparty also agrees that (i) the Company and its Representatives shall be free\nto conduct any process for any transaction involving the Company, if and as they in their sole discretion shall determine (including, without\nlimitation, negotiating with any other interested parties and entering into a preliminary or definitive agreement without prior notice to Counterparty\nor any other person) and (ii) the Company may change any procedures relating to such process or transaction at any time without notice to\nCounterparty or any other person.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives has entered into, directly or indirectly, any\nagreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, or maintain or\ncontinue, directly or indirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives\nand, subject to and only as and to the extent permitted by the Special Committee, members of the Gold family and the Company’s CEO and their\nRepresentatives), with respect to a possible transaction involving the Company.\nSection 2.8 Financing. Except with respect to any debt financing sources that are identified in writing to Lazard (each, an “Exempt\nParty”), and, subject to and only as and to the extent permitted in writing by the Special Committee, members of the Gold family and the Company’s\nCEO, Counterparty agrees that neither it nor any of its Representatives will provide the Review Material to, or have any discussions concerning a\npossible transaction involving the Company with, any potential debt or equity financing source without the written consent of the Company. Whether\nor not any such consent is granted, Counterparty agrees that it will not, directly or indirectly, require, instruct or encourage any financial institutions\nor financing sources not to be retained by any other person in connection with a possible transaction involving the Company and, if requested,\nCounterparty shall consent to any such retention, and waive any actual or alleged conflict that may arise from any existing or past relationship with\nsuch parties, in connection with such possible transaction. Each Exempt Party shall be considered a Representative of Counterparty for all purposes\nof this Agreement.\nARTICLE 3\nCERTAIN RESTRICTIONS\n4\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company’s prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom\nCounterparty has had contact or who became known to Counterparty in connection with Counterparty’s evaluation of a Possible Transaction, or\nsolicit, induce or otherwise encourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company,\nprovided, however, that the foregoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts\nCounterparty or such Affiliate on his or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by\nCounterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions. From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will\nnot, and will not permit any of its Affiliates to, singly or as part of a group, directly or indirectly, propose to the Company or any other person any\ntransaction between Counterparty and the Company and/or the Company’s security holders or involving any of the Company’s securities or security\nholders unless the Company shall have specifically requested in writing that Counterparty makes such a proposal. Counterparty further agrees that,\nfrom and after the date hereof, until the Restriction Period expires, Counterparty will not, and will not permit any of its Affiliates to, singly or as part\nof a group, directly or indirectly, in any manner, (a) beneficially or otherwise, own (other than the shares of Company common stock owned of\nrecord (or, if and only to the extent and for the reasons disclosed in Counterparty’s Schedule 13D with respect to the Company filed prior to the date\nhereof, beneficially) as of the date hereof by Counterparty or any of its affiliated funds), acquire, agree to acquire or propose to acquire, by purchase,\nexchange, conversion or otherwise, any securities or property of the Company (other than purchases of products by any Exempt Party or purchases\nin the ordinary course of business of both Counterparty and the Company), or any interest in any indebtedness of the Company, or any rights or\noptions to acquire any such securities, property or interests or that are otherwise related to or have a value determined in whole or in part by\nreference to, or derived in whole or in part from, any such securities, property or interests, (b) except at the specific written request of Company,\npropose to enter into, directly or indirectly, any form of merger, tender or exchange offer, consolidation, change of control or other business\ncombination or other similar transaction involving the Company, (c) otherwise act to seek to control or influence the management, Board of\nDirectors or policies of the Company, (d) enter into any contract, arrangement or understanding with any person with respect to any securities of the\nCompany, including but not limited to any joint venture, loan or option agreement, put or call, guarantee of loans, guarantee of profits or division of\nlosses or profits (except with respect to any Exempt Party), (e) disclose any intention, plan or arrangement, or otherwise make any proposal or other\nstatement, inconsistent with the terms of this Agreement or (f) advise, assist or encourage any other persons in connection with any of the foregoing.\nCounterparty also agrees during such period that it will not, and will not permit any of its Affiliates to, singly or as part of a group, directly or\nindirectly, (i) request the Company (or its respective directors, officers, affiliates, employees or agents) to amend, waive or terminate any provision\nof this paragraph (including this sentence), or (ii) take any action which might require the Company to make a public announcement regarding the\npossibility of a business combination or merger involving the Company.\n5\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company’s\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\n6\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99¢ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307 -9611\nwith a copy to:\nMorrison & Foerster LLP\n555 West Fifth Avenue\nLos Angeles, CA 90013\nAttention: Jonathan T. Keen\nFax: (213) 892-5733\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd., Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L .P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n7\nSection 4.8 Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of the\nState of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9 No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\nSection 4.10 Designated Representative. Except as otherwise expressly permitted hereby, Counterparty agrees that all (i) contacts and\ncommunications with the Company or any of its Representatives regarding Review Material or the Possible Transaction, or otherwise relating to the\nCompany or its business, operations, prospects, assets or liabilities, (ii) requests for additional information from the Company or any of its\nRepresentatives, (iii) requests for on-site access or management meetings and (iv) discussions or questions regarding procedures, shall be submitted\nor directed solely to a designated representative of Lazard, or such other person, if any, as the Company may designate in writing from time to time\n(the “Designated Representative”). Without limiting the foregoing, Counterparty shall, and shall cause its Representatives to, not initiate or maintain\nany contact with any officer, director, employee or agent of the Company regarding any Review Material or otherwise relating to the Company or its\nbusiness, operations, prospects, assets or liabilities, or regarding any potential transaction involving the Company, without written consent from the\nDesignated Representative. In addition, and without limiting the foregoing, Counterparty and its Representatives shall not have any communications\n(orally or in writing or through any other means) with any member of the Gold Family or the Company’s CEO (either directly or through their\nrepresentatives or advisors) in their capacities as shareholders, other than as permitted by the Special Committee.\nThe prohibition hereunder on communicating with members of the Gold family and the Company’s CEO, in their capacities as shareholders,\nshall expire on the date three (3) weeks following the public announcement by the Special Committee that it has ceased to pursue a Possible\nTransaction or any strategic alternative for the Company, provided, that such expiration shall not otherwise affect any other provision of this\nAgreement.\n8\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n99¢ Only Stores\nBy: /s/ Marvin L. Holen\nIts: Chairman of the Special Committee\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.,\nits general partner\nBy: /s/ Michael Solomon\nIts: Partner\n9
04139986fd9aaf6cb0c374a67d045478.pdf	effective_date jurisdiction party term	EX-10.17 9 dex1017.htm AT-WILL EMPLOYMENT, PROPRIETARY RIGHTS, NON-DISCLOSURE & NO\nCONFLICTS AGREEMENT\nExhibit 10.17\nAs a condition of my employment with Dolby Laboratories, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing, effective immediately prior to such time that the Securities and Exchange Commission declares the Company’s registration statement on\nForm S-1 effective (“Effective Time”):\nI. AT-WILL EMPLOYMENT\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN UNSPECIFIED DURATION\nAND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY IS\nUNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE PRESIDENT OF THE COMPANY. I\nACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD\nCAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR ME, WITH OR WITHOUT NOTICE.\nII. EMPLOYEE PROPRIETARY RIGHTS & NON -DISCLOSURE AGREEMENT\nI recognize that, as part of its business, it is important that the Company initiate, make and develop technological innovations and inventions,\ncreate copyrightable works, develop valuable information and trade secrets, and protect its legal rights in such matters. Therefore, in consideration of\nmy employment by the Company, I hereby agree:\n1. To maintain in strictest confidence, both during the term of my employment and thereafter, all confidential technical and business\ninformation, trade secrets, inventions and innovations and unpublished copyrightable works of the Company, its successors or assigns, and my co-\nworkers, either learned or developed by me during the term of my employment; and\n2. To promptly disclose and assign all rights to the Company, its successors or assigns, in any and all inventions or innovations that are\nconceived or first actually reduced to practice by me, either alone or jointly with others, during my term of employment by the Company after the\nEffective Time; except that I need not assign to the Company title in any invention or innovation that either:\na. does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the Company’s actual or\ndemonstrably anticipated research or development (collectively, the “Business”), or\nb. does not result from any work performed by me for the Company and was developed without using the Company’s equipment,\nsupplies, facilities, or trade-secret information, unless either (1) the invention relates at the time of conception or reduction to practice to the\nBusiness, or (2) full title in the United States to the invention is required by contract between the Company and the United States or any of its\nagencies.\nI understand that all those disclosures of my inventions and innovations made to the Company under this paragraph for which I need not assign title\nto the Company shall be received in confidence by the Company.\n3. That any inventions, products, processes, apparatus, designs, improvements, or business related suggestions and information conceived,\ndiscovered, made or developed by me, solely or jointly with others, after my termination of employment with the Company that includes or uses the\nfirm’s trade secrets or confidential information shall belong to the Company and I agree to assign any and all rights in such items to the Company.\n4. To promptly disclose to the Company all copyrightable works, including, but not limited to all computer programs and accessory materials,\ncreated by me, either alone or jointly with others, during my term of employment by the Company after the Effective Time resulting from work\nperformed by me for the Company; and to assign to the Company, its successors and assigns, the entire copyright in any and all such works and to\nexecute such instruments or transfer as the Company may require to perfect its proprietary interest in such copyrights under the Copyright Law of\nthe United States or otherwise, except that I need not assign to the Company the copyright in any work for which no trade secret information of the\nCompany was used which does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the\nCompany’s actual or demonstrably anticipated research or development.\n5. To execute all documents which the firm may consider necessary to carry out this Agreement, including domestic and foreign patent\napplications prepared at the expense of the firm and formal assignments to the firm of all rights in such inventions and patent applications and the\npatents issued thereon together with all divisions, continuations, and reissues thereof, to submit to a reasonable and confidential review process\nunder which the firm may determine any issues as may arise under this Agreement.\n6. That any breaches of this Agreement pertaining to inventions and the like, confidential information, protected trade secrets and non-\nsolicitation will cause the firm irreparable injury and damages in an amount difficult to ascertain. Accordingly, in addition to any other relief and\ndamages to which the firm may be entitled, I agree that the Company shall be entitled to temporary and permanent injunctive relief by any\ncompetent court.\n7. I understand this Agreement does not apply to an invention which qualifies fully under the provisions of California Labor Code section\n2870(a). That section provides:\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the\nemployee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information\nexcept for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business,\nor actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for\nthe employer.\nIII. COMPANY COVENANTS\nThe Company agrees that I may use the Company’s equipment, supplies, and facilities to conduct research and development on my own behalf\n(“RMD R&D”) and that, if during my employment with the Company, I conceive or reduce to practice an invention that I need not assign to the\nCompany under 2 above, including, without limitation, in the course of RMD R&D, all intellectual property rights in such invention shall belong to\nme and is not a work for hire and is not assigned to the Company pursuant to this Agreement.\nIV. CONFLICT OF INTEREST POLICY\nI agree to adhere to the Conflict of Interest Policy of Company as set forth in this Article IV; provided that it is understood that no conflict of\ninterest exists based on (i) my performance of RMD R&D under Article III of this Agreement, (ii) any agreements in place between the Company\nand me as of the Effective Time, (iii) any lease arrangements between the Company and me that are contemplated by the Company and me as of the\nEffective Time and any modification or renewal thereof; and (iv) my use, registration, or renewal of any form of the name “Dolby” in accordance\nwith Section 2.2(b) of the Asset Contribution Agreement entered into as of November 19, 2004.\nSubject to the foregoing:\nThe Company expects me to avoid situations that create an actual or potential conflict between personal interests and those of the Company. A\nconflict of interest exists when my loyalties or actions are divided between the Company and a competitor, business partner, collaborator,\nmanufacturer, supplier, licensee, or customer. If I am unsure whether a certain transaction, activity, or relationship constitutes a conflict of interest, I\nshall discuss it with a member of management for clarification. The President of the Company must approve any exceptions to this guideline. Some\nexamples of the more common conflicts that I must avoid include, but are not limited to:\n•\nWorking for a competitor, supplier, licensee, or customer while employed by the Company\n•\nEngaging in self-employment in competition with the Company or soliciting competitors or customers to participate in competing outside\nbusiness relationships\n•\nUsing proprietary or confidential Company information for personal gain or to the Company’s detriment\n•\nHaving a direct financial interest in a competitor, customer, licensee, or supplier that is greater than a 10% percent ownership\n•\nCommitting the Company to give its financial or other support to any outside activity or organization without appropriate authorization\n•\nAcquiring “Friends and Family” stock from licensees and/or other business partners\nAcceptance of Gifts and Gift-Giving\nSoliciting gifts, entertainment, favors, money, loans, credits, preferential discounts or services from competitors, customers, licensees,\nsuppliers, or potential suppliers is expressly prohibited.\nAccepting personal gifts or entertainment (such as another company’s stock, computer software, hardware) of significant value from\ncompetitors, customers, licensees, suppliers, or potential suppliers is also prohibited. It follows that accepting such gifts and reselling them for\npersonal gain is expressly prohibited.\nAcceptance of occasional personal gifts of nominal value (such as invitations to lunch, candy, food baskets, or flowers) from competitors,\ncustomers, licensees, suppliers, or potential suppliers is generally allowable. When it is deemed inappropriate to accept a gift, it should be declined\ngraciously.\nV. MISCELLANEOUS\n1. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. The Company\nand I hereby expressly consent to the personal jurisdiction of the state and federal courts located in the City and County of San Francisco, California\nfor any lawsuit filed there against me by the Company arising from or relating to this Agreement.\n2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and supersedes as of the Effective Time all prior discussions, representations or agreements between us including, but not limited to,\nthe Employment Agreement between Dolby Laboratories, Inc. and me dated July 10, 1978, as amended. No modification of or amendment to this\nAgreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the President of the Company and me.\nAny subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n3. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\n4. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be\nfor the benefit of the Company, its successors, and its assigns.\nDate: November 19, 2004\n/s/ RAY DOLBY\nSignature\nRAY M. DOLBY\nACKNOWLEDGED AND AGREED:\nDolby Laboratories, Inc.\n/s/ N. W. JASPER, JR.\nWitness:\n/s/ LARA M. HOPWOOD\nSignature\nLara M. Hopwood\nName (typed or printed)	EX-10.17 9 dex1017.htm AT-WILL EMPLOYMENT, PROPRIETARY RIGHTS, NON-DISCLOSURE & NO\nCONFLICTS AGREEMENT\nExhibit 10.17\nAs a condition of my employment with Dolby Laboratories, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing, effective immediately prior to such time that the Securities and Exchange Commission declares the Company’s registration statement on\nForm S-1 effective (“Effective Time”):\nI. AT-WILL EMPLOYMENT\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN UNSPECIFIED DURATION\nAND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY IS\nUNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE PRESIDENT OF THE COMPANY. I\nACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD\nCAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR ME, WITH OR WITHOUT NOTICE.\nII. EMPLOYEE PROPRIETARY RIGHTS & NON-DISCLOSURE AGREEMENT\nI recognize that, as part of its business, it is important that the Company initiate, make and develop technological innovations and inventions,\ncreate copyrightable works, develop valuable information and trade secrets, and protect its legal rights in such matters. Therefore, in consideration of\nmy employment by the Company, I hereby agree:\n1. To maintain in strictest confidence, both during the term of my employment and thereafter, all confidential technical and business\ninformation, trade secrets, inventions and innovations and unpublished copyrightable works of the Company, its successors or assigns, and my co-\nworkers, either learned or developed by me during the term of my employment; and\n2. To promptly disclose and assign all rights to the Company, its successors or assigns, in any and all inventions or innovations that are\nconceived or first actually reduced to practice by me, either alone or jointly with others, during my term of employment by the Company after the\nEffective Time; except that I need not assign to the Company title in any invention or innovation that either:\na. does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the Company’s actual or\ndemonstrably anticipated research or development (collectively, the “Business™), or\nb. does not result from any work performed by me for the Company and was developed without using the Company’s equipment,\nsupplies, facilities, or trade-secret information, unless either (1) the invention relates at the time of conception or reduction to practice to the\nBusiness, or (2) full title in the United States to the invention is required by contract between the Company and the United States or any of its\nagencies.\nI understand that all those disclosures of my inventions and innovations made to the Company under this paragraph for which I need not assign title\nto the Company shall be received in confidence by the Company.\n3. That any inventions, products, processes, apparatus, designs, improvements, or business related suggestions and information conceived,\ndiscovered, made or developed by me, solely or jointly with others, after my termination of employment with the Company that includes or uses the\nfirm’s trade secrets or confidential information shall belong to the Company and I agree to assign any and all rights in such items to the Company.\n4. To promptly disclose to the Company all copyrightable works, including, but not limited to all computer programs and accessory materials,\ncreated by me, either alone or jointly with others, during my term of employment by the Company after the Effective Time resulting from work\nperformed by me for the Company; and to assign to the Company, its successors and assigns, the entire copyright in any and all such works and to\nexecute such instruments or transfer as the Company may require to perfect its proprietary interest in such copyrights under the Copyright Law of\nthe United States or otherwise, except that I need not assign to the Company the copyright in any work for which no trade secret information of the\nCompany was used which does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the\nCompany’s actual or demonstrably anticipated research or development.\n5. To execute all documents which the firm may consider necessary to carry out this Agreement, including domestic and foreign patent\napplications prepared at the expense of the firm and formal assignments to the firm of all rights in such inventions and patent applications and the\npatents issued thereon together with all divisions, continuations, and reissues thereof, to submit to a reasonable and confidential review process\nunder which the firm may determine any issues as may arise under this Agreement.\n6. That any breaches of this Agreement pertaining to inventions and the like, confidential information, protected trade secrets and non-\nsolicitation will cause the firm irreparable injury and damages in an amount difficult to ascertain. Accordingly, in addition to any other relief and\ndamages to which the firm may be entitled, I agree that the Company shall be entitled to temporary and permanent injunctive relief by any\ncompetent court.\n7.1 understand this Agreement does not apply to an invention which qualifies fully under the provisions of California Labor Code section\n2870(a). That section provides:\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the\nemployee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information\nexcept for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business,\nor actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for\nthe employer.\nIII. COMPANY COVENANTS\nThe Company agrees that I may use the Company’s equipment, supplies, and facilities to conduct research and development on my own behalf\n(“RMD R&D”) and that, if during my employment with the Company, I conceive or reduce to practice an invention that I need not assign to the\nCompany under 2 above, including, without limitation, in the course of RMD R&D, all intellectual property rights in such invention shall belong to\nme and is not a work for hire and is not assigned to the Company pursuant to this Agreement.\nIV. CONFLICT OF INTEREST POLICY\nI agree to adhere to the Conflict of Interest Policy of Company as set forth in this Article IV; provided that it is understood that no conflict of\ninterest exists based on (i) my performance of RMD R&D under Article III of this Agreement, (ii) any agreements in place between the Company\nand me as of the Effective Time, (iii) any lease arrangements between the Company and me that are contemplated by the Company and me as of the\nEffective Time and any modification or renewal thereof; and (iv) my use, registration, or renewal of any form of the name “Dolby” in accordance\nwith Section 2.2(b) of the Asset Contribution Agreement entered into as of November 19, 2004.\nSubject to the foregoing:\nThe Company expects me to avoid situations that create an actual or potential conflict between personal interests and those of the Company. A\nconflict of interest exists when my loyalties or actions are divided between the Company and a competitor, business partner, collaborator,\nmanufacturer, supplier, licensee, or customer. If I am unsure whether a certain transaction, activity, or relationship constitutes a conflict of interest, I\nshall discuss it with a member of management for clarification. The President of the Company must approve any exceptions to this guideline. Some\nexamples of the more common conflicts that I must avoid include, but are not limited to:\n*  Working for a competitor, supplier, licensee, or customer while employed by the Company\n+  Engaging in self-employment in competition with the Company or soliciting competitors or customers to participate in competing outside\nbusiness relationships\n»  Using proprietary or confidential Company information for personal gain or to the Company’s detriment\n* Having a direct financial interest in a competitor, customer, licensee, or supplier that is greater than a 10% percent ownership\n*  Committing the Company to give its financial or other support to any outside activity or organization without appropriate authorization\n*  Acquiring “Friends and Family” stock from licensees and/or other business partners\nAcceptance of Gifts and Gift-Giving\nSoliciting gifts, entertainment, favors, money, loans, credits, preferential discounts or services from competitors, customers, licensees,\nsuppliers, or potential suppliers is expressly prohibited.\nAccepting personal gifts or entertainment (such as another company’s stock, computer software, hardware) of significant value from\ncompetitors, customers, licensees, suppliers, or potential suppliers is also prohibited. It follows that accepting such gifts and reselling them for\npersonal gain is expressly prohibited.\nAcceptance of occasional personal gifts of nominal value (such as invitations to lunch, candy, food baskets, or flowers) from competitors,\ncustomers, licensees, suppliers, or potential suppliers is generally allowable. When it is deemed inappropriate to accept a gift, it should be declined\ngraciously.\nV.  MISCELLANEOUS\n1. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. The Company\nand I hereby expressly consent to the personal jurisdiction of the state and federal courts located in the City and County of San Francisco, California\nfor any lawsuit filed there against me by the Company arising from or relating to this Agreement.\n2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and supersedes as of the Effective Time all prior discussions, representations or agreements between us including, but not limited to,\nthe Employment Agreement between Dolby Laboratories, Inc. and me dated July 10, 1978, as amended. No modification of or amendment to this\nAgreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the President of the Company and me.\nAny subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n3. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\n4. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be\nfor the benefit of the Company, its successors, and its assigns.\nDate: November 19, 2004\nACKNOWLEDGED AND AGREED:\nDolby Laboratories, Inc.\n/s/ N.W. JASPER, JR.\nWitness:\n/s/  LARA M. HOPWOOD\nSignature\nLara M. Hopwood\nName (typed or printed)\nSignature\nRAY M. DOLBY\n/s/  RAY DOLBY	EX-10.17 9 lex1017.htm 1017. htm AT-WILL EMPLOYMENT, PROPRIETARY RIGHTS, NON-DISCLOSURE & NO\nCONFLICTS AGREEMENT\nExhibit 10.17\nAs a condition of my employment with Dolby Laboratories, Inc., its subsidiaries, affiliates, successors or assigns (together the "Company"), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing, effective immediately prior to such time that the Securities and Exchange Commission declares the Company's registration statement on\nForm S-1 effective ("Effective Time"):\nI.\nAT-WILL EMPLOYMENT\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN UNSPECIFIED DURATION\nAND CONSTITUTES "AT-WILL" EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY IS\nUNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE PRESIDENT OF THE COMPANY. I\nACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD\nCAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR ME, WITH OR WITHOUT NOTICE.\nII. EMPLOYEE PROPRIETARY RIGHTS & NON-DISCLOSURE AGREEMENT\nI recognize that, as part of its business, it is important that the Company initiate, make and develop technological innovations and inventions,\ncreate copyrightable works, develop valuable information and trade secrets, and protect its legal rights in such matters. Therefore, in consideration of\nmy employment by the Company, I hereby agree:\n1. To maintain in strictest confidence, both during the term of my employment and thereafter, all confidential technical and business\ninformation, trade secrets, inventions and innovations and unpublished copyrightable works of the Company, its successors or assigns, and my co-\nworkers, either learned or developed by me during the term of my employment; and\n2. To promptly disclose and assign all rights to the Company, its successors or assigns, in any and all inventions or innovations that are\nconceived or first actually reduced to practice by me, either alone or jointly with others, during my term of employment by the Company after the\nEffective Time; except that I need not assign to the Company title in any invention or innovation that either:\na. does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the Company's actual or\ndemonstrably anticipated research or development (collectively, the "Business"), or\nb. does not result from any work performed by me for the Company and was developed without using the Company's equipment,\nsupplies, facilities, or trade-secret information, unless either (1) the invention relates at the time of conception or reduction to practice to\nthe\nBusiness, or (2) full title in the United States to the invention is required by contract between the Company and the United States or any of\nits\nagencies.\nI understand that all those disclosures of my inventions and innovations made to the Company under this paragraph for which I need not assign title\nto the Company shall be received in confidence by the Company.\n3. That any inventions, products, processes, apparatus, designs, improvements, or business related suggestions and information conceived,\ndiscovered, made or developed by me, solely or jointly with others, after my termination of employment with the Company that includes or uses the\nfirm's trade secrets or confidential information shall belong to the Company and I agree to assign any and all rights in such items to the Company.\n4. To promptly disclose to the Company all copyrightable works, including, but not limited to all computer programs and accessory materials,\ncreated by me, either alone or jointly with others, during my term of employment by the Company after the Effective Time resulting from work\nperformed by me for the Company; and to assign to the Company, its successors and assigns, the entire copyright in any and all such works and to\nexecute such instruments or transfer as the Company may require to perfect its proprietary interest in such copyrights under the Copyright Law of\nthe United States or otherwise, except that I need not assign to the Company the copyright in any work for which no trade secret information of the\nCompany was used which does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the\nCompany's actual or demonstrably anticipated research or development.\n5. To execute all documents which the firm may consider necessary to carry out this Agreement, including domestic and foreign patent\napplications prepared at the expense of the firm and formal assignments to the firm of all rights in such inventions and patent applications and the\npatents issued thereon together with all divisions, continuations, and reissues thereof, to submit to a reasonable and confidential review process\nunder which the firm may determine any issues as may arise under this Agreement.\n6. That any breaches of this Agreement pertaining to inventions and the like, confidential information, protected trade secrets and non-\nsolicitation will cause the firm irreparable injury and damages in an amount difficult to ascertain. Accordingly, in addition to any other relief and\ndamages to which the firm may be entitled, I agree that the Company shall be entitled to temporary and permanent injunctive relief by any\ncompetent court.\n7. I understand this Agreement does not apply to an invention which qualifies fully under the provisions of California Labor Code section\n2870(a) That section provides:\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the\nemployee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information\nexcept for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer's business,\nor actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for\nthe employer.\nIII. COMPANY COVENANTS\nThe Company agrees that I may use the Company's equipment, supplies, and facilities to conduct research and development on my own behalf\n("RMD R&D") and that, if during my employment with the Company, I conceive or reduce to practice an invention that I need not assign to the\nCompany under 2 above, including, without limitation, in the course of RMD R&D, all intellectual property rights in such invention shall belong\nto\nme and is not a work for hire and is not assigned to the Company pursuant to this Agreement.\nIV. CONFLICT OF INTEREST POLICY\nI agree to adhere to the Conflict of Interest Policy of Company as set forth in this Article IV; provided that it is understood that no conflict of\ninterest exists based on (i) my performance of RMD R&D under Article III of this Agreement, (ii) any agreements in place between the Company\nand me as of the Effective Time, (iii) any lease arrangements between the Company and me that are contemplated by the Company and me as of the\nEffective Time and any modification or renewal thereof; and (iv) my use, registration, or renewal of any form of the name "Dolby" in accordance\nwith Section 2.2(b) of the Asset Contribution Agreement entered into as of November 19, 2004.\nSubject to the foregoing:\nThe Company expects me to avoid situations that create an actual or potential conflict between personal interests and those of the Company. A\nconflict of interest exists when my loyalties or actions are divided between the Company and a competitor, business partner, collaborator,\nmanufacturer, supplier, licensee, or customer. If I am unsure whether a certain transaction, activity, or relationship constitutes a conflict of interest, I\nshall discuss it with a member of management for clarification The President of the Company must approve any exceptions to this guideline. Some\nexamples of the more common conflicts that I must avoid include, but are not limited to:\nWorking for a competitor, supplier, licensee, or customer while employed by the Company\nEngaging in self-employment in competition with the Company or soliciting competitors or customers to participate in competing outside\nbusiness relationships\nUsing proprietary or confidential Company information for personal gain or to the Company's detriment\nHaving a direct financial interest in a competitor, customer, licensee, or supplier that is greater than a 10% percent ownership\nCommitting the Company to give its financial or other support to any outside activity or organization without appropriate authorization\nAcquiring "Friends and Family" stock from licensees and/or other business partners\nAcceptance of Gifts and Gift-Giving\nSoliciting gifts, entertainment, favors, money, loans, credits, preferential discounts or services from competitors, customers, licensees,\nsuppliers, or potential suppliers is expressly prohibited.\nAccepting personal gifts or entertainment (such as another company's stock, computer software, hardware) of significant value from\ncompetitors, customers, licensees, suppliers, or potential suppliers is also prohibited. It follows that accepting such gifts and reselling them for\npersonal gain is expressly prohibited.\nAcceptance of occasional personal gifts of nominal value (such as invitations to lunch, candy, food baskets, or flowers) from competitors,\ncustomers, licensees, suppliers, or potential suppliers is generally allowable. When it is deemed inappropriate to accept a gift, it should be declined\ngraciously.\nV. MISCELLANEOUS\n1. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. The Company\nand I hereby expressly consent to the personal jurisdiction of the state and federal courts located in the City and County of San Francisco, California\nfor any lawsuit filed there against me by the Company arising from or relating to this Agreement.\n2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter\nherein and supersedes as of the Effective Time all prior discussions, representations or agreements between us including, but not limited to,\nthe Employment Agreement between Dolby Laboratories, Inc. and me dated July 10, 1978, as amended. No modification of or amendment to this\nAgreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the President of the Company and me.\nAny subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n3.\nSeverability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\n4. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be\nfor the benefit of the Company, its successors, and its assigns.\nDate: November 19, 2004\n/s/ RAY DOLBY\nSignature\nRAY M. DOLBY\nACKNOWLEDGED AND AGREED:\nDolby Laboratories, Inc.\n/s/ N. W. JASPER, JR.\nWitness:\n/s/ LARA M. HOPWOoD\nSignature\nLara M. Hopwood\nName (typed or printed)	EX-10.17 9 dex1017.htm AT-WILL EMPLOYMENT, PROPRIETARY RIGHTS, NON-DISCLOSURE & NO\nCONFLICTS AGREEMENT\nExhibit 10.17\nAs a condition of my employment with Dolby Laboratories, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing, effective immediately prior to such time that the Securities and Exchange Commission declares the Company’s registration statement on\nForm S-1 effective (“Effective Time”):\nI. AT-WILL EMPLOYMENT\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN UNSPECIFIED DURATION\nAND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY IS\nUNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE PRESIDENT OF THE COMPANY. I\nACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD\nCAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR ME, WITH OR WITHOUT NOTICE.\nII. EMPLOYEE PROPRIETARY RIGHTS & NON -DISCLOSURE AGREEMENT\nI recognize that, as part of its business, it is important that the Company initiate, make and develop technological innovations and inventions,\ncreate copyrightable works, develop valuable information and trade secrets, and protect its legal rights in such matters. Therefore, in consideration of\nmy employment by the Company, I hereby agree:\n1. To maintain in strictest confidence, both during the term of my employment and thereafter, all confidential technical and business\ninformation, trade secrets, inventions and innovations and unpublished copyrightable works of the Company, its successors or assigns, and my co-\nworkers, either learned or developed by me during the term of my employment; and\n2. To promptly disclose and assign all rights to the Company, its successors or assigns, in any and all inventions or innovations that are\nconceived or first actually reduced to practice by me, either alone or jointly with others, during my term of employment by the Company after the\nEffective Time; except that I need not assign to the Company title in any invention or innovation that either:\na. does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the Company’s actual or\ndemonstrably anticipated research or development (collectively, the “Business”), or\nb. does not result from any work performed by me for the Company and was developed without using the Company’s equipment,\nsupplies, facilities, or trade-secret information, unless either (1) the invention relates at the time of conception or reduction to practice to the\nBusiness, or (2) full title in the United States to the invention is required by contract between the Company and the United States or any of its\nagencies.\nI understand that all those disclosures of my inventions and innovations made to the Company under this paragraph for which I need not assign title\nto the Company shall be received in confidence by the Company.\n3. That any inventions, products, processes, apparatus, designs, improvements, or business related suggestions and information conceived,\ndiscovered, made or developed by me, solely or jointly with others, after my termination of employment with the Company that includes or uses the\nfirm’s trade secrets or confidential information shall belong to the Company and I agree to assign any and all rights in such items to the Company.\n4. To promptly disclose to the Company all copyrightable works, including, but not limited to all computer programs and accessory materials,\ncreated by me, either alone or jointly with others, during my term of employment by the Company after the Effective Time resulting from work\nperformed by me for the Company; and to assign to the Company, its successors and assigns, the entire copyright in any and all such works and to\nexecute such instruments or transfer as the Company may require to perfect its proprietary interest in such copyrights under the Copyright Law of\nthe United States or otherwise, except that I need not assign to the Company the copyright in any work for which no trade secret information of the\nCompany was used which does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the\nCompany’s actual or demonstrably anticipated research or development.\n5. To execute all documents which the firm may consider necessary to carry out this Agreement, including domestic and foreign patent\napplications prepared at the expense of the firm and formal assignments to the firm of all rights in such inventions and patent applications and the\npatents issued thereon together with all divisions, continuations, and reissues thereof, to submit to a reasonable and confidential review process\nunder which the firm may determine any issues as may arise under this Agreement.\n6. That any breaches of this Agreement pertaining to inventions and the like, confidential information, protected trade secrets and non-\nsolicitation will cause the firm irreparable injury and damages in an amount difficult to ascertain. Accordingly, in addition to any other relief and\ndamages to which the firm may be entitled, I agree that the Company shall be entitled to temporary and permanent injunctive relief by any\ncompetent court.\n7. I understand this Agreement does not apply to an invention which qualifies fully under the provisions of California Labor Code section\n2870(a). That section provides:\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the\nemployee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information\nexcept for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business,\nor actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for\nthe employer.\nIII. COMPANY COVENANTS\nThe Company agrees that I may use the Company’s equipment, supplies, and facilities to conduct research and development on my own behalf\n(“RMD R&D”) and that, if during my employment with the Company, I conceive or reduce to practice an invention that I need not assign to the\nCompany under 2 above, including, without limitation, in the course of RMD R&D, all intellectual property rights in such invention shall belong to\nme and is not a work for hire and is not assigned to the Company pursuant to this Agreement.\nIV. CONFLICT OF INTEREST POLICY\nI agree to adhere to the Conflict of Interest Policy of Company as set forth in this Article IV; provided that it is understood that no conflict of\ninterest exists based on (i) my performance of RMD R&D under Article III of this Agreement, (ii) any agreements in place between the Company\nand me as of the Effective Time, (iii) any lease arrangements between the Company and me that are contemplated by the Company and me as of the\nEffective Time and any modification or renewal thereof; and (iv) my use, registration, or renewal of any form of the name “Dolby” in accordance\nwith Section 2.2(b) of the Asset Contribution Agreement entered into as of November 19, 2004.\nSubject to the foregoing:\nThe Company expects me to avoid situations that create an actual or potential conflict between personal interests and those of the Company. A\nconflict of interest exists when my loyalties or actions are divided between the Company and a competitor, business partner, collaborator,\nmanufacturer, supplier, licensee, or customer. If I am unsure whether a certain transaction, activity, or relationship constitutes a conflict of interest, I\nshall discuss it with a member of management for clarification. The President of the Company must approve any exceptions to this guideline. Some\nexamples of the more common conflicts that I must avoid include, but are not limited to:\n•\nWorking for a competitor, supplier, licensee, or customer while employed by the Company\n•\nEngaging in self-employment in competition with the Company or soliciting competitors or customers to participate in competing outside\nbusiness relationships\n•\nUsing proprietary or confidential Company information for personal gain or to the Company’s detriment\n•\nHaving a direct financial interest in a competitor, customer, licensee, or supplier that is greater than a 10% percent ownership\n•\nCommitting the Company to give its financial or other support to any outside activity or organization without appropriate authorization\n•\nAcquiring “Friends and Family” stock from licensees and/or other business partners\nAcceptance of Gifts and Gift-Giving\nSoliciting gifts, entertainment, favors, money, loans, credits, preferential discounts or services from competitors, customers, licensees,\nsuppliers, or potential suppliers is expressly prohibited.\nAccepting personal gifts or entertainment (such as another company’s stock, computer software, hardware) of significant value from\ncompetitors, customers, licensees, suppliers, or potential suppliers is also prohibited. It follows that accepting such gifts and reselling them for\npersonal gain is expressly prohibited.\nAcceptance of occasional personal gifts of nominal value (such as invitations to lunch, candy, food baskets, or flowers) from competitors,\ncustomers, licensees, suppliers, or potential suppliers is generally allowable. When it is deemed inappropriate to accept a gift, it should be declined\ngraciously.\nV. MISCELLANEOUS\n1. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. The Company\nand I hereby expressly consent to the personal jurisdiction of the state and federal courts located in the City and County of San Francisco, California\nfor any lawsuit filed there against me by the Company arising from or relating to this Agreement.\n2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and supersedes as of the Effective Time all prior discussions, representations or agreements between us including, but not limited to,\nthe Employment Agreement between Dolby Laboratories, Inc. and me dated July 10, 1978, as amended. No modification of or amendment to this\nAgreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the President of the Company and me.\nAny subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n3. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\n4. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be\nfor the benefit of the Company, its successors, and its assigns.\nDate: November 19, 2004\n/s/ RAY DOLBY\nSignature\nRAY M. DOLBY\nACKNOWLEDGED AND AGREED:\nDolby Laboratories, Inc.\n/s/ N. W. JASPER, JR.\nWitness:\n/s/ LARA M. HOPWOOD\nSignature\nLara M. Hopwood\nName (typed or printed)
04bf0791804e8487c91ab84eaa47a335.pdf	effective_date jurisdiction party term	EX-99. (E) (1) 4 dex99e1.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(1)\nMUTUAL NON-DISCLOSURE AGREEMENT dated as of September 23, 2009 (this “Agreement”) among ALTIMO HOLDINGS &\nINVESTMENTS LIMITED, a company organized under the laws of the British Virgin Islands (“Altimo”), TELENOR ASA, a company organized\nunder the laws of Norway (“Telenor”), and OPEN JOINT STOCK COMPANY “VIMPEL-COMMUNICATIONS”, an open joint stock company\norganized under the laws of the Russian Federation (“VimpelCom” and, together with Altimo and Telenor, collectively, the “Parties” and each,\nindividually, a “Party”).\nWHEREAS, Altimo, Telenor and VimpelCom are currently discussing and evaluating a possible transaction (the “Transaction”) between\nAltimo, Telenor and VimpelCom, with respect to Altimo and Telenor’s respective indirect shareholdings in VimpelCom and Closed Joint Stock\nCompany “Kyivstar G.S .M.,” a closed joint stock company organized under the laws of Ukraine (“Kyivstar”);\nNOW, THEREFORE, it is hereby agreed by the Parties as follows:\n1. Each Party agrees that Information (as defined below) will be kept confidential by such Party and its Representatives and will not be\ndisclosed or divulged to any other Person (as defined below) without the express prior written consent of the other Parties. Nothing in this\nAgreement shall preclude a Party or its Representatives (as defined below) from disclosing Information which (a) is or becomes generally available\nin the public domain other than as a result of a disclosure by the Party or its Representatives receiving the Information in violation of the terms of\nthis Agreement, (b) was available to such Party or its Representatives on a non-confidential basis prior to its disclosure, (c) becomes available to\nsuch Party or it Representatives on a non-confidential basis from a source other than another Party or its Representatives or Kyivstar, provided that\nsuch source was not known by such Party (after making appropriate inquiries) to be prohibited from disclosing such Information by a contractual or\nlegal obligation to another Party or its affiliates or (d) has been developed by such Party or its Representatives independently of any Information\nsupplied hereunder. As used herein, “Information” means (i) the fact that discussions or negotiations are taking place concerning the Transaction,\n(ii) any of the discussions, negotiations, terms, conditions or other facts with respect to the Transaction (including the status thereof), (iii) any non-\npublic, confidential or proprietary information received from any Party or its Representatives or Kyivstar, whether in oral, written, visual, magnetic,\nelectronic or other form and regardless of whether such information is specifically identified as “confidential”, together with any analyses,\ncompilations, studies or other documents which contain or otherwise reflect such information, and (iv) the existence and terms of this Agreement;\nand “Person” means any individual, governmental body (including, without limitation, any court or regulatory authority), arbitration tribunal,\npartnership, corporation, the media or any other entity.\n2. Each Party is permitted to disclose the Information only to those of its subsidiaries and affiliates and its and their respective directors,\nofficers, employees, attorneys, accountants, financial advisors, financing sources and other agents (collectively, a Party’s “Representatives”) who\nneed to know such Information for the purpose of facilitating the Transaction; provided that such Party shall inform its Representatives of the\nconfidential nature of such Information, shall provide them with a copy of this Agreement and shall direct them to treat such Information as\nconfidential in accordance with the terms hereof; and provided further that for purposes of the definition of “Representatives”, neither Telenor nor\nAltimo shall be deemed affiliates of VimpelCom.\n3. Each Party will be responsible for any breach by it or, if applicable, its Representatives of this Agreement. Each Party agrees to take all\nreasonable measures to restrain its Representatives from unauthorized disclosure or use of Information.\n4. Notwithstanding the foregoing or anything to the contrary in Section 13, a Party and its Representatives may disclose any Information to\nsatisfy a deposition, interrogatory, discovery request, subpoena, civil investigation claim or other similar process of a legal demand by a competent\ncourt of law or governmental body, provided, however, that in such circumstances, the Party or Representative seeking to disclose (the “Disclosing\nParty”) shall, to the extent practicable, advise the other Parties (the “Other Parties”) prior to disclosure so that the Other Parties have an\nopportunity to seek a protective order or otherwise defend, limit or protect against such\nproduction or disclosure; provided further that the Disclosing Party shall disclose only that portion of the Information which is legally required to be\ndisclosed. Notwithstanding anything to the contrary in Section 1 or Section 13, a Party and its Representatives may disclose any Information (as\nprovided in sub-clauses (i), (ii) and (iv) only of the definition of “Information”) regarding the Transaction (a) if it determines that such disclosure is\nnecessary in accordance with the requirements of any applicable law or regulation of any governmental entity having jurisdiction over such Party or\nRepresentative or of any stock exchange on which VimpelCom or Telenor’s respective securities are listed, provided the Disclosing Party shall give\nthe Other Parties reasonable advance notice and opportunity to comment on the content of the disclosure or (b) to the extent necessary, to any\ngovernmental or regulatory authority whose approval, whether formal or informal, is required in order to complete the Transaction, provided that the\nDisclosing Party shall inform the Other Parties of the nature and content of such disclosure, as well as the details of the governmental or regulatory\nauthority to whom such disclosure has been made.\n5. Each Party represents that it is familiar with the United States Securities Exchange Act of 1934, as amended, the rules and regulations\nthereunder and related legislation and principles of common law forbidding insider trading of securities. Telenor and Altimo agree that until the\nearlier of: (i) the signing of the definitive Transaction documentation or (ii) the receipt of a notice from either Altimo or Telenor that it terminates\nfurther discussions of the Transaction, each of Telenor and Altimo shall refrain, and shall cause its respective directly controlled affiliates to refrain,\nfrom trading equity securities of VimpelCom; provided, however, that this restriction shall not apply to Alfa Bank’s brokerage business; and\nprovided further that VimpelCom shall not be deemed a controlled affiliate of either Telenor or Altimo for purposes of this Section 5. For the\navoidance of doubt, this restriction does not apply to any transaction involving VimpelCom debt securities; nor shall this Agreement constitute an\namendment or waiver of any provision of the Registration Rights Agreement dated as of May 30, 2001 between and among Telenor East Invest AS,\nEco Telecom Limited and VimpelCom.\n6. No failure or delay by a Party in exercising any right, power, privilege or remedy hereunder shall operate as a waiver hereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power, privilege or remedy hereunder. The Parties agree that\nmoney damages would not be a sufficient remedy for any breach of this Agreement by a Party or any of its Representatives. Such remedies shall not\nbe deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.\n7. This Agreement and any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, or for the breach or\nalleged breach thereof (whether in contract, in tort or otherwise) shall be governed by, and construed in accordance with, the laws of the State of\nNew York, without giving effect to any conflicts of laws or other principles thereof that would result in the application of the laws of another\njurisdiction. For the avoidance of doubt, the parties confirm that they are fully familiar with the provisions of Section 5-1401 of the New York\nGeneral Obligations Law, and intend to bring this Agreement within the terms thereof.\n8. (a) Any and all disputes, controversies and claims between or among the Parties and arising under, relating to or in connection with, this\nAgreement, in any manner whatsoever, whether in contract, in tort, or otherwise, and including any dispute or controversy regarding the existence,\nvalidity or enforceability of this Agreement, or the arbitrability of any dispute, controversy or claim, and whether brought by a Party and/or any of its\nparents, subsidiaries, affiliates, officers, directors or agents, on the one hand, against a Party and/or any of its parents, subsidiaries, affiliates, officers,\ndirectors or agents, on the other hand, shall be settled by arbitration by a tribunal of three (3) arbitrators constituted and acting under the United\nNations Commission on International Trade Law (UNCITRAL) Arbitration Rules then in force (the “Rules”) in accordance with the following terms\nand conditions:\n(i) in the event of any conflict between the Rules and the provisions of this Agreement, the provisions of this Agreement shall prevail;\n(ii) (A) the seat of arbitration shall be London, England, unless otherwise agreed by the Parties, and the fact that hearings are held elsewhere\nshall not affect the seat of arbitration; and (B) notwithstanding\n2\nSection 7 hereof, the arbitration proceeding itself shall be governed by the Arbitration Act 1996 of the United Kingdom and the\nprocedural law of England relating to the conduct of arbitration proceedings;\n(iii) the following procedures shall govern the selection of arbitrators:\n(A) where there is only one claimant party and one respondent party, the claimant party shall appoint one arbitrator in accordance\nwith the Rules, the respondent party shall appoint one arbitrator in accordance with the Rules within thirty (30) days after the\nappointment of the first arbitrator, and the two arbitrators so appointed shall appoint the third (and presiding) arbitrator in\naccordance with the Rules within thirty (30) days after the appointment of the second arbitrator;\n(B) In the event of an inability by the two party–nominated arbitrators to agree on a third arbitrator in accordance with Section 8(a)\n(iii)(A) above, the appointing authority for the third arbitrator shall be the LCIA (the “LCIA”), acting in accordance with such\nrules as it may adopt for such purpose. The LCIA shall use its best efforts to appoint such third arbitrator within thirty (30) days\nof an application being made for such purpose.\n(C) Following the appointment by a claimant or claimants or a respondent or respondents of the first arbitrator in circumstances in\nwhich there is more than one claimant party or respondent party, the remaining claimants or respondents, as the case may be,\nshall attempt to agree between or among themselves on the appointment of a second arbitrator within thirty (30) days after the\nappointment of the first arbitrator, and to appoint such individual to serve as the second arbitrator. Should they (i) fail to so agree,\nand (ii) provide written notice of such disagreement within (30) days of the appointment of the first arbitrator, then, within ten\n(10) days after the date of the first such notice, any such claimant or respondent may nominate a candidate to serve as the second\narbitrator. Within thirty (30) days after the end of such ten (10) day period for nominations, the LCIA shall choose one of the\ncandidates so nominated to serve as the second arbitrator, in accordance with such rules as it may adopt for such purpose. The\narbitration (including with respect to the appointment of the third arbitrator) shall thereafter proceed in accordance with this\nSection 8.\n(iv) The English language shall be used as the written and spoken language for the arbitration proceeding and all matters connected to the\narbitration proceeding.\n(v) The arbitral tribunal shall have the power to grant any remedy or relief that it deems just and equitable and that is in accordance with the\nterms of this Agreement, including specific performance, and including, but not limited to, injunctive relief, whether interim or final, and\nany such relief and any interim, provisional or conservatory measure ordered by the arbitral tribunal may be specifically enforced by any\ncourt of competent jurisdiction. Each party to the arbitration proceeding retains the right to seek interim, provisional or conservatory\nmeasures in accordance with Section 8(c), and any such request shall not be deemed incompatible with the agreement to arbitrate or\nconstitute a waiver of the right to arbitrate.\n(vi) The award of the arbitral tribunal shall be final and binding on the parties to the arbitration proceeding.\n(vii) The award of the arbitral tribunal may be enforced by any court of competent jurisdiction and may be executed against the person and\nassets of the losing party in any competent jurisdiction. For the avoidance of doubt, the parties acknowledge and agree that a court of any\njurisdiction where the assets of a party against which enforcement is sought may be found is a court of competent jurisdiction, and the\nparties irrevocably consent to the exercise of personal jurisdiction in any such court.\n(b) Except for arbitration proceedings pursuant to Section 8(a), no action, lawsuit or other proceeding (other than proceedings for the\nconfirmation or enforcement of an arbitration award, an action to compel arbitration or an application for interim, provisional or\nconservatory measures in connection with the arbitration) shall be brought by or between the Parties in connection with any\nmatter arising out of or in connection with this Agreement. Each Party irrevocably waives any right under the Arbitration Act\n1996 of the United Kingdom to appeal any arbitration award to, or\n3\nto seek determination of any question of law arising in the course of arbitration from, the Commercial Court.\n(c) Each Party hereby irrevocably submits to (i) the non-exclusive jurisdiction of the Commercial Court in London, England in\nconnection with any proceeding for the confirmation or enforcement of an arbitration award, and (ii) the exclusive jurisdiction of\nthe Commercial Court in London, England in connection with any application for interim, provisional or conservatory measures\nin connection with an arbitration (in each case, as referred to in Section 8(b) above) or an action to compel arbitration (provided\nthat each Party retains the right to file a motion to compel arbitration (or its equivalent) in a court other than the Commercial\nCourt in London, England in response to an action commenced or a motion or application made by another Party or its agents,\naffiliates or representatives in such other court). Notwithstanding the foregoing, each Party agrees that it shall not, directly or\nindirectly, whether through any agent, affiliate, representative or otherwise, apply for any interim, provisional or conservatory\nmeasures in connection with an arbitration before any court located in the United States, the Russian Federation or Ukraine;\nprovided, however, that nothing in this Section 8(c) shall preclude, in any manner whatsoever, any Party from seeking any such\nmeasure based upon (A) any order or judgment, whether provisional or final, of any English court or (B) any order, directive,\naward or ruling, whether interim or final, of any arbitral tribunal in any arbitration proceeding hereunder. Each Party hereby\nirrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying\nof the venue of any such action, suit or proceeding brought in the Commercial Court and any claim that any such action, suit or\nproceeding brought in the Commercial Court has been brought in any inconvenient forum. Nothing herein shall affect the right of\nany Party to serve process in any other manner permitted by applicable law or to commence legal proceedings or otherwise\nproceed against another Party in any other jurisdiction in a manner not inconsistent with this Section 8(c).\n9. The provisions of this Agreement may not be amended, modified, supplemented or terminated without the prior written agreement of all\nParties, and waivers or consents to departures from the provisions hereof may not be given, except by written instrument duly executed by the Party\nagainst which enforcement of such waiver or consent to departure is sought. Altimo and certain of its affiliates, on the one hand, and Telenor and\ncertain of its affiliates, on the other, are parties to certain litigations and arbitrations in the United States, Switzerland, Russia and Ukraine concerning\ntheir rights and obligations with respect to their respective shareholdings in Kyivstar and VimpelCom (each, a “Dispute”, and, collectively, the\n“Disputes”). Nothing in this Agreement shall limit or prevent Altimo, Telenor or any of their respective affiliates from continuing to prosecute or\ndefend any of the Disputes, and any Dispute may continue to be prosecuted or defended as if this Agreement did not exist (provided, however, that\nany Information received from VimpelCom or its Representatives will continue to be provided the protections afforded such Information under this\nAgreement). Each of Altimo and Telenor agrees not to seek, or permit any of its respective affiliates to seek, a dismissal, stay, postponement or\nsimilar other relief in any Dispute by reason (in whole or in part) of this Agreement or any discussions concerning the Transaction. Nothing in this\nAgreement constitutes a commitment by any Party or its Representatives to enter into the Transaction and all discussions between the Parties and\ntheir respective Representatives with regard to the Transaction remain subject to definitive written agreements being entered into by the Parties or\ntheir affiliates in respect of the Transaction.\n10. If it is found in a final judgment by an arbitral tribunal or a court of competent jurisdiction (not subject to further appeal) that any term or\nprovision hereof is invalid or unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and\neffect and (b) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n11. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by a Party without the prior written consent of the\nother Parties and any attempt to do so will be void. Subject to the\n4\npreceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and\nassigns. The terms and provisions of this Agreement are intended solely for the benefit of each Party and their respective successors or permitted\nassigns, and it is not the intention of the Parties to confer third party beneficiary rights upon any other Person.\n12. This Agreement shall become effective on the date hereof and shall continue until the earlier of (i) the signing of the definitive Transaction\ndocumentation, (ii) a period of twelve (12) months from the execution date of this Agreement, and (iii) the written agreement of the Parties to\nterminate this Agreement. The Information disclosed to the Parties shall be treated as confidential in accordance with this Agreement for a period of\ntwo (2) years from the date of termination of this Agreement. The provisions of Sections 6-11 hereof and this Section 12 shall survive any\ntermination of this Agreement. The provisions of this Agreement shall become binding upon VimpelCom upon receipt of the approval of its board of\ndirectors, as required by applicable Russian law and VimpelCom’s charter in respect of interested party transactions.\n13. Subject to Section 4 hereof, each Party agrees that it shall, and shall cause its Representatives to, refrain from disclosing any information or\nmaking any statements regarding the Transaction in connection with the marketing of any securities issued in relation to the Transaction, including,\nwithout limitation, during any “road show” or any appearance before rating agencies, unless the form and content of such disclosure has been\nreviewed and agreed to by the other Parties.\n14. Any notice, request, consent, waiver or other communication required or permitted hereunder shall be effective only if it is in writing and\npersonally delivered or sent by facsimile or sent, postage prepaid, by registered or certified mail, return receipt requested, or by recognized overnight\ncourier service, postage or other charges prepaid, and shall be deemed given when so delivered by hand or facsimile, or when received if sent by\nmail or by courier, as follows:\nIf to Altimo:\nSavvinskaya nab., 11\nMoscow 119435\nRussia\nFacsimile No.: +7 495 981 44 88\nAttention: Yuri Musatov\nIf to Telenor:\nAdvokatene i Telenor\nSnarøyveien 30\nN1331 Fornebu\nNorway\nFacsimile No.: +47 67 89 24 32\nAttention: Bjørn Hogstad\nIf to VimpelCom:\n4 Krasnoproletarskaya Street\nMoscow 127006\nRussia\nFacsimile No.: +7(909) 991-7903\nAttention: Jeff McGhie\nor such other person or address as the addressee may have specified in a notice duly given to the sender as provided herein.\n5\nIN WITNESS WHEREOF, this Mutual Non-Disclosure Agreement has been duly executed and delivered by each Party as of the date first\nabove written.\nALTIMO HOLDINGS & INVESTMENT LIMITED\nBy: /s/ Franz Wolf\nName: Franz Wolf\nTitle: Director\nTELENOR ASA\nBy: /s/ Trond Westlie\nName: Trond Westlie\nTitle: EVP and CFO\nOPEN JOINT STOCK COMPANY “VIMPEL-\nCOMMUNICATIONS”\nBy: /s/ Jeffrey D. McGhie\nName: Jeffrey D. McGhie\nTitle: Vice President, General Counsel\n6	EX-99. (E) (1) 4 dex99e1.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(1)\nMUTUAL NON-DISCLOSURE AGREEMENT dated as of September 23, 2009 (this “Agreement”) among ALTIMO HOLDINGS &\nINVESTMENTS LIMITED, a company organized under the laws of the British Virgin Islands (“Altimo”), TELENOR ASA, a company organized\nunder the laws of Norway (“Telenor”), and OPEN JOINT STOCK COMPANY “VIMPEL-COMMUNICATIONS”, an open joint stock company\norganized under the laws of the Russian Federation (“VimpelCom” and, together with Altimo and Telenor, collectively, the “Parties” and each,\nindividually, a “Party”).\nWHEREAS, Altimo, Telenor and VimpelCom are currently discussing and evaluating a possible transaction (the “Transaction”) between\nAltimo, Telenor and VimpelCom, with respect to Altimo and Telenor’s respective indirect shareholdings in VimpelCom and Closed Joint Stock\nCompany “Kyivstar G.S.M.,” a closed joint stock company organized under the laws of Ukraine (“Kyivstar”);\nNOW, THEREFORE, it is hereby agreed by the Parties as follows:\n1. Each Party agrees that Information (as defined below) will be kept confidential by such Party and its Representatives and will not be\ndisclosed or divulged to any other Person (as defined below) without the express prior written consent of the other Parties. Nothing in this\nAgreement shall preclude a Party or its Representatives (as defined below) from disclosing Information which (a) is or becomes generally available\nin the public domain other than as a result of a disclosure by the Party or its Representatives receiving the Information in violation of the terms of\nthis Agreement, (b) was available to such Party or its Representatives on a non-confidential basis prior to its disclosure, (c) becomes available to\nsuch Party or it Representatives on a non-confidential basis from a source other than another Party or its Representatives or Kyivstar, provided that\nsuch source was not known by such Party (after making appropriate inquiries) to be prohibited from disclosing such Information by a contractual or\nlegal obligation to another Party or its affiliates or (d) has been developed by such Party or its Representatives independently of any Information\nsupplied hereunder. As used herein, “Information” means (i) the fact that discussions or negotiations are taking place concerning the Transaction,\n(ii) any of the discussions, negotiations, terms, conditions or other facts with respect to the Transaction (including the status thereof), (iii) any non-\npublic, confidential or proprietary information received from any Party or its Representatives or Kyivstar, whether in oral, written, visual, magnetic,\nelectronic or other form and regardless of whether such information is specifically identified as “confidential”, together with any analyses,\ncompilations, studies or other documents which contain or otherwise reflect such information, and (iv) the existence and terms of this Agreement;\nand “Person” means any individual, governmental body (including, without limitation, any court or regulatory authority), arbitration tribunal,\npartnership, corporation, the media or any other entity.\n2. Each Party is permitted to disclose the Information only to those of its subsidiaries and affiliates and its and their respective directors,\nofficers, employees, attorneys, accountants, financial advisors, financing sources and other agents (collectively, a Party’s “Representatives”) who\nneed to know such Information for the purpose of facilitating the Transaction; provided that such Party shall inform its Representatives of the\nconfidential nature of such Information, shall provide them with a copy of this Agreement and shall direct them to treat such Information as\nconfidential in accordance with the terms hereof; and provided further that for purposes of the definition of “Representatives”, neither Telenor nor\nAltimo shall be deemed affiliates of VimpelCom.\n \n3. Each Party will be responsible for any breach by it or, if applicable, its Representatives of this Agreement. Each Party agrees to take all\nreasonable measures to restrain its Representatives from unauthorized disclosure or use of Information.\n4. Notwithstanding the foregoing or anything to the contrary in Section 13, a Party and its Representatives may disclose any Information to\nsatisfy a deposition, interrogatory, discovery request, subpoena, civil investigation claim or other similar process of a legal demand by a competent\ncourt of law or governmental body, provided, however, that in such circumstances, the Party or Representative seeking to disclose (the “Disclosing\nParty”) shall, to the extent practicable, advise the other Parties (the “Other Parties”) prior to disclosure so that the Other Parties have an\nopportunity to seek a protective order or otherwise defend, limit or protect against such\nproduction or disclosure; provided further that the Disclosing Party shall disclose only that portion of the Information which is legally required to be\ndisclosed. Notwithstanding anything to the contrary in Section 1 or Section 13, a Party and its Representatives may disclose any Information (as\nprovided in sub-clauses (i), (ii) and (iv) only of the definition of “Information”) regarding the Transaction (a) if it determines that such disclosure is\nnecessary in accordance with the requirements of any applicable law or regulation of any governmental entity having jurisdiction over such Party or\nRepresentative or of any stock exchange on which VimpelCom or Telenor’s respective securities are listed, provided the Disclosing Party shall give\nthe Other Parties reasonable advance notice and opportunity to comment on the content of the disclosure or (b) to the extent necessary, to any\ngovernmental or regulatory authority whose approval, whether formal or informal, is required in order to complete the Transaction, provided that the\nDisclosing Party shall inform the Other Parties of the nature and content of such disclosure, as well as the details of the governmental or regulatory\nauthority to whom such disclosure has been made.\n5. Each Party represents that it is familiar with the United States Securities Exchange Act of 1934, as amended, the rules and regulations\nthereunder and related legislation and principles of common law forbidding insider trading of securities. Telenor and Altimo agree that until the\nearlier of: (i) the signing of the definitive Transaction documentation or (ii) the receipt of a notice from either Altimo or Telenor that it terminates\nfurther discussions of the Transaction, each of Telenor and Altimo shall refrain, and shall cause its respective directly controlled affiliates to refrain,\nfrom trading equity securities of VimpelCom; provided, however, that this restriction shall not apply to Alfa Bank’s brokerage business; and\nprovided further that VimpelCom shall not be deemed a controlled affiliate of either Telenor or Altimo for purposes of this Section 5. For the\navoidance of doubt, this restriction does not apply to any transaction involving VimpelCom debt securities; nor shall this Agreement constitute an\namendment or waiver of any provision of the Registration Rights Agreement dated as of May 30, 2001 between and among Telenor East Invest AS,\nEco Telecom Limited and VimpelCom.\n6. No failure or delay by a Party in exercising any right, power, privilege or remedy hereunder shall operate as a waiver hereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power, privilege or remedy hereunder. The Parties agree that\nmoney damages would not be a sufficient remedy for any breach of this Agreement by a Party or any of its Representatives. Such remedies shall not\nbe deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.\n7. This Agreement and any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, or for the breach or\nalleged breach thereof (whether in contract, in tort or otherwise) shall be governed by, and construed in accordance with, the laws of the State of\nNew York, without giving effect to any conflicts of laws or other principles thereof that would result in the application of the laws of another\njurisdiction. For the avoidance of doubt, the parties confirm that they are fully familiar with the provisions of Section 5-1401 of the New York\nGeneral Obligations Law, and intend to bring this Agreement within the terms thereof.\n8. (a) Any and all disputes, controversies and claims between or among the Parties and arising under, relating to or in connection with, this\nAgreement, in any manner whatsoever, whether in contract, in tort, or otherwise, and including any dispute or controversy regarding the existence,\nvalidity or enforceability of this Agreement, or the arbitrability of any dispute, controversy or claim, and whether brought by a Party and/or any of its\nparents, subsidiaries, affiliates, officers, directors or agents, on the one hand, against a Party and/or any of its parents, subsidiaries, affiliates, officers,\ndirectors or agents, on the other hand, shall be settled by arbitration by a tribunal of three (3) arbitrators constituted and acting under the United\nNations Commission on International Trade Law (UNCITRAL) Arbitration Rules then in force (the “Rules”) in accordance with the following terms\nand conditions:\n(i) in the event of any conflict between the Rules and the provisions of this Agreement, the provisions of this Agreement shall prevail;\n(ii) (A) the seat of arbitration shall be London, England, unless otherwise agreed by the Parties, and the fact that hearings are held elsewhere\nshall not affect the seat of arbitration; and (B) notwithstanding\n2\n(iii)\n(iv)\n)\n(vi)\n(vii)\nSection 7 hereof, the arbitration proceeding itself shall be governed by the Arbitration Act 1996 of the United Kingdom and the\nprocedural law of England relating to the conduct of arbitration proceedings;\nthe following procedures shall govern the selection of arbitrators:\n(A)  where there is only one claimant party and one respondent party, the claimant party shall appoint one arbitrator in accordance\nwith the Rules, the respondent party shall appoint one arbitrator in accordance with the Rules within thirty (30) days after the\nappointment of the first arbitrator, and the two arbitrators so appointed shall appoint the third (and presiding) arbitrator in\naccordance with the Rules within thirty (30) days after the appointment of the second arbitrator;\n(B) Inthe event of an inability by the two party—nominated arbitrators to agree on a third arbitrator in accordance with Section 8(a)\n(iii)(A) above, the appointing authority for the third arbitrator shall be the LCIA (the “L.CIA”), acting in accordance with such\nrules as it may adopt for such purpose. The LCIA shall use its best efforts to appoint such third arbitrator within thirty (30) days\nof an application being made for such purpose.\n(C)  Following the appointment by a claimant or claimants or a respondent or respondents of the first arbitrator in circumstances in\nwhich there is more than one claimant party or respondent party, the remaining claimants or respondents, as the case may be,\nshall attempt to agree between or among themselves on the appointment of a second arbitrator within thirty (30) days after the\nappointment of the first arbitrator, and to appoint such individual to serve as the second arbitrator. Should they (i) fail to so agree,\nand (ii) provide written notice of such disagreement within (30) days of the appointment of the first arbitrator, then, within ten\n(10) days after the date of the first such notice, any such claimant or respondent may nominate a candidate to serve as the second\narbitrator. Within thirty (30) days after the end of such ten (10) day period for nominations, the LCIA shall choose one of the\ncandidates so nominated to serve as the second arbitrator, in accordance with such rules as it may adopt for such purpose. The\narbitration (including with respect to the appointment of the third arbitrator) shall thereafter proceed in accordance with this\nSection 8.\nThe English language shall be used as the written and spoken language for the arbitration proceeding and all matters connected to the\narbitration proceeding.\nThe arbitral tribunal shall have the power to grant any remedy or relief that it deems just and equitable and that is in accordance with the\nterms of this Agreement, including specific performance, and including, but not limited to, injunctive relief, whether interim or final, and\nany such relief and any interim, provisional or conservatory measure ordered by the arbitral tribunal may be specifically enforced by any\ncourt of competent jurisdiction. Each party to the arbitration proceeding retains the right to seek interim, provisional or conservatory\nmeasures in accordance with Section 8(c), and any such request shall not be deemed incompatible with the agreement to arbitrate or\nconstitute a waiver of the right to arbitrate.\nThe award of the arbitral tribunal shall be final and binding on the parties to the arbitration proceeding.\nThe award of the arbitral tribunal may be enforced by any court of competent jurisdiction and may be executed against the person and\nassets of the losing party in any competent jurisdiction. For the avoidance of doubt, the parties acknowledge and agree that a court of any\njurisdiction where the assets of a party against which enforcement is sought may be found is a court of competent jurisdiction, and the\nparties irrevocably consent to the exercise of personal jurisdiction in any such court.\n(b)  Except for arbitration proceedings pursuant to Section 8(a), no action, lawsuit or other proceeding (other than proceedings for the\nconfirmation or enforcement of an arbitration award, an action to compel arbitration or an application for interim, provisional or\nconservatory measures in connection with the arbitration) shall be brought by or between the Parties in connection with any\nmatter arising out of or in connection with this Agreement. Each Party irrevocably waives any right under the Arbitration Act\n1996 of the United Kingdom to appeal any arbitration award to, or\n3\nto seek determination of any question of law arising in the course of arbitration from, the Commercial Court.\n(© Each Party hereby irrevocably submits to (i) the non-exclusive jurisdiction of the Commercial Court in London, England in\nconnection with any proceeding for the confirmation or enforcement of an arbitration award, and (ii) the exclusive jurisdiction of\nthe Commercial Court in London, England in connection with any application for interim, provisional or conservatory measures\nin connection with an arbitration (in each case, as referred to in Section 8(b) above) or an action to compel arbitration (provided\nthat each Party retains the right to file a motion to compel arbitration (or its equivalent) in a court other than the Commercial\nCourt in London, England in response to an action commenced or a motion or application made by another Party or its agents,\naffiliates or representatives in such other court). Notwithstanding the foregoing, each Party agrees that it shall not, directly or\nindirectly, whether through any agent, affiliate, representative or otherwise, apply for any interim, provisional or conservatory\nmeasures in connection with an arbitration before any court located in the United States, the Russian Federation or Ukraine;\nprovided, however, that nothing in this Section 8(c) shall preclude, in any manner whatsoever, any Party from seeking any such\nmeasure based upon (A) any order or judgment, whether provisional or final, of any English court or (B) any order, directive,\naward or ruling, whether interim or final, of any arbitral tribunal in any arbitration proceeding hereunder. Each Party hereby\nirrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying\nof the venue of any such action, suit or proceeding brought in the Commercial Court and any claim that any such action, suit or\nproceeding brought in the Commercial Court has been brought in any inconvenient forum. Nothing herein shall affect the right of\nany Party to serve process in any other manner permitted by applicable law or to commence legal proceedings or otherwise\nproceed against another Party in any other jurisdiction in a manner not inconsistent with this Section 8(c).\n9. The provisions of this Agreement may not be amended, modified, supplemented or terminated without the prior written agreement of all\nParties, and waivers or consents to departures from the provisions hereof may not be given, except by written instrument duly executed by the Party\nagainst which enforcement of such waiver or consent to departure is sought. Altimo and certain of its affiliates, on the one hand, and Telenor and\ncertain of its affiliates, on the other, are parties to certain litigations and arbitrations in the United States, Switzerland, Russia and Ukraine concerning\ntheir rights and obligations with respect to their respective shareholdings in Kyivstar and VimpelCom (each, a “Dispute”, and, collectively, the\n“Disputes™). Nothing in this Agreement shall limit or prevent Altimo, Telenor or any of their respective affiliates from continuing to prosecute or\ndefend any of the Disputes, and any Dispute may continue to be prosecuted or defended as if this Agreement did not exist (provided, however, that\nany Information received from VimpelCom or its Representatives will continue to be provided the protections afforded such Information under this\nAgreement). Each of Altimo and Telenor agrees not to seek, or permit any of its respective affiliates to seek, a dismissal, stay, postponement or\nsimilar other relief in any Dispute by reason (in whole or in part) of this Agreement or any discussions concerning the Transaction. Nothing in this\nAgreement constitutes a commitment by any Party or its Representatives to enter into the Transaction and all discussions between the Parties and\ntheir respective Representatives with regard to the Transaction remain subject to definitive written agreements being entered into by the Parties or\ntheir affiliates in respect of the Transaction.\n10. If it is found in a final judgment by an arbitral tribunal or a court of competent jurisdiction (not subject to further appeal) that any term or\nprovision hereof is invalid or unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and\neffect and (b) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n11. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by a Party without the prior written consent of the\nother Parties and any attempt to do so will be void. Subject to the\npreceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and\nassigns. The terms and provisions of this Agreement are intended solely for the benefit of each Party and their respective successors or permitted\nassigns, and it is not the intention of the Parties to confer third party beneficiary rights upon any other Person.\n12. This Agreement shall become effective on the date hereof and shall continue until the earlier of (i) the signing of the definitive Transaction\ndocumentation, (ii) a period of twelve (12) months from the execution date of this Agreement, and (iii) the written agreement of the Parties to\nterminate this Agreement. The Information disclosed to the Parties shall be treated as confidential in accordance with this Agreement for a period of\ntwo (2) years from the date of termination of this Agreement. The provisions of Sections 6-11 hereof and this Section 12 shall survive any\ntermination of this Agreement. The provisions of this Agreement shall become binding upon VimpelCom upon receipt of the approval of its board of\ndirectors, as required by applicable Russian law and VimpelCom'’s charter in respect of interested party transactions.\n13. Subject to Section 4 hereof, each Party agrees that it shall, and shall cause its Representatives to, refrain from disclosing any information or\nmaking any statements regarding the Transaction in connection with the marketing of any securities issued in relation to the Transaction, including,\nwithout limitation, during any “road show” or any appearance before rating agencies, unless the form and content of such disclosure has been\nreviewed and agreed to by the other Parties.\n14. Any notice, request, consent, waiver or other communication required or permitted hereunder shall be effective only if it is in writing and\npersonally delivered or sent by facsimile or sent, postage prepaid, by registered or certified mail, return receipt requested, or by recognized overnight\ncourier service, postage or other charges prepaid, and shall be deemed given when so delivered by hand or facsimile, or when received if sent by\nmail or by courier, as follows:\nIf to Altimo:\nSavvinskaya nab., 11\nMoscow 119435\nRussia\nFacsimile No.: +7 495 981 44 88\nAttention: Yuri Musatov\nIf to Telenor:\nAdvokatene i Telenor\nSnargyveien 30\nN1331 Fornebu\nNorway\nFacsimile No.: +47 67 89 24 32\nAttention: Bjgrn Hogstad\nIf to VimpelCom:\n4 Krasnoproletarskaya Street\nMoscow 127006\nRussia\nFacsimile No.: +7(909) 991-7903\nAttention: Jeff McGhie\nor such other person or address as the addressee may have specified in a notice duly given to the sender as provided herein.\n5\nIN WITNESS WHEREOF, this Mutual Non-Disclosure Agreement has been duly executed and delivered by each Party as of the date first\nabove written.\nATLTIMO HOLDINGS & INVESTMENT LIMITED\nBy:  /s/ Franz Wolf\nName: Franz Wolf\nTitle: Director\nTELENOR ASA\nBy:  /s/ Trond Westlie\nName: Trond Westlie\nTitle: EVP and CFO\nOPEN JOINT STOCK COMPANY “VIMPEL-\nCOMMUNICATIONS”\nBy:  /s/ Jeffrey D. McGhie\nName: Jeffrey D. McGhie\nTitle: Vice President, General Counsel	EX-99. (E) (1) 4 dex99el.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(1)\nMUTUAL NON-DISCLOSURE AGREEMENT dated as of September 23, 2009 (this "Agreement") among ALTIMO HOLDINGS &\nINVESTMENTS LIMITED, a company organized under the laws of the British Virgin Islands ("Altimo"), TELENOR ASA, a company organized\nunder the laws of Norway ("Telenor"), and OPEN JOINT STOCK COMPANY "VIMPEL-COMMUNICATIONS", an open joint stock company\norganized under the laws of the Russian Federation ("VimpelCom" and, together with Altimo and Telenor, collectively, the "Parties" and each,\nindividually, a "Party").\nWHEREAS, Altimo, Telenor and VimpelCom are currently discussing and evaluating a possible transaction (the "Transaction") between\nAltimo, Telenor and VimpelCom, with respect to Altimo and Telenor's respective indirect shareholdings in VimpelCom and Closed Joint Stock\nCompany "Kyivstar G.S.M.," a closed joint stock company organized under the laws of Ukraine ("Kyivstar");\nNOW, THEREFORE, it is hereby agreed by the Parties as follows:\n1. Each Party agrees that Information (as defined below) will be kept confidential by such Party and its Representatives and will not be\ndisclosed or divulged to any other Person (as defined below) without the express prior written consent of the other Parties. Nothing in this\nAgreement shall preclude a Party or its Representatives (as defined below) from disclosing Information which (a) is or becomes generally available\nin the public domain other than as a result of a disclosure by the Party or its Representatives receiving the Information in violation of the terms of\nthis Agreement, (b) was available to such Party or its Representatives on a non-confidential basis prior to its disclosure, (c) becomes available to\nsuch\nParty or it Representatives on a non-confidential basis from a source other than another Party or its Representatives or Kyivstar, provided that\nsuch source was not known by such Party (after making appropriate inquiries) to be prohibited from disclosing such Information by a contractual or\nlegal obligation to another Party or its affiliates or (d) has been developed by such Party or its Representatives independently of any Information\nsupplied\nhereunder. As used herein, "Information" means (i) the fact that discussions or negotiations are taking place concerning the Transaction\n(ii) any of the discussions, negotiations, terms, conditions or other facts with respect to the Transaction (including the status thereof), (iii) any non-\npublic, confidential or proprietary information received from any Party or its Representatives or Kyivstar, whether in oral, written, visual, magnetic,\nelectronic or other form and regardless of whether such information is specifically identified as "confidential", together with any analyses,\ncompilations, studies or other documents which contain or otherwise reflect such information, and (iv) the existence and terms of this Agreement;\nand "Person" means any individual, governmental body (including, without limitation, any court or regulatory authority), arbitration tribunal,\npartnership, corporation, the media or any other entity.\n2. Each Party is permitted to disclose the Information only to those of its subsidiaries and affiliates and its and their respective directors,\nofficers, employees, attorneys, accountants, financial advisors, financing sources and other agents (collectively, a Party's "Representatives")\nwho\nneed to know such Information for the purpose of facilitating the Transaction; provided that such Party shall inform its Representatives of the\nconfidential nature of such Information, shall provide them with a copy of this Agreement and shall direct them to treat such Information as\nconfidential in accordance with the terms hereof; and provided further that for purposes of the definition of "Representatives", neither Telenor nor\nAltimo shall be deemed affiliates of VimpelCom.\n3. Each Party will be responsible for any breach by it or, if applicable, its Representatives of this Agreement. Each Party agrees to take all\nreasonable measures to restrain its Representatives from unauthorized disclosure or use of Information.\n4. Notwithstanding the foregoing or anything to the contrary in Section 13, a Party and its Representatives may disclose any Information to\nsatisfy a deposition, interrogatory, discovery request, subpoena, civil investigation claim or other similar process of a legal demand by a competent\ncourt of law or governmental body, provided, however, that in such circumstances, the Party or Representative seeking to disclose (the "Disclosing\nParty") shall, to the extent practicable, advise the other Parties (the "Other Parties") prior to disclosure so that the Other Parties have an\nopportunity to seek a protective order or otherwise defend, limit or protect against such\nproduction or disclosure; provided further that the Disclosing Party shall disclose only that portion of the Information which is legally required to be\ndisclosed. Notwithstanding anything to the contrary in Section 1 or Section 13, a Party and its Representatives may disclose any Information (as\nprovided in sub-clauses (i), (ii) and (iv) only of the definition of "Information") regarding the Transaction (a) if it determines that such disclosure\nis\nnecessary in accordance with the requirements of any applicable law or regulation of any governmental entity having jurisdiction over such Party or\nRepresentative or of any stock exchange on which VimpelCom or Telenor's respective securities are listed, provided the Disclosing Party shall give\nthe Other Parties reasonable advance notice and opportunity to comment on the content of the disclosure or (b) to the extent necessary, to any\ngovernmental or regulatory authority whose approval, whether formal or informal, is required in order to complete the Transaction, provided that the\nDisclosing Party shall inform the Other Parties of the nature and content of such disclosure, as well as the details of the governmental or regulatory\nauthority to whom such disclosure has been made.\n5. Each Party represents that it is familiar with the United States Securities Exchange Act of 1934, as amended, the rules and regulations\nthereunder and related legislation and principles of common law forbidding insider trading of securities. Telenor and Altimo agree that until the\nearlier of: (i) the signing of the definitive Transaction documentation or (ii) the receipt of a notice from either Altimo or Telenor that it terminates\nfurther discussions of the Transaction, each of Telenor and Altimo shall refrain, and shall cause its respective directly controlled affiliates to refrain,\nfrom trading equity securities of VimpelCom; provided, however, that this restriction shall not apply to Alfa Bank's brokerage business; and\nprovided further that VimpelCom shall not be deemed a controlled affiliate of either Telenor or Altimo for purposes of this Section 5. For the\navoidance of doubt, this restriction does not apply to any transaction involving VimpelCom debt securities; nor shall this Agreement constitute an\namendment or waiver of any provision of the Registration Rights Agreement dated as of May 30, 2001 between and among Telenor East Invest AS,\nEco Telecom Limited and VimpelCom.\n6. No failure or delay by a Party in exercising any right, power, privilege or remedy hereunder shall operate as a waiver hereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power, privilege or remedy hereunder. The Parties agree that\nmoney damages would not be a sufficient remedy for any breach of this Agreement by a Party or any of its Representatives. Such remedies shall not\nbe deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.\n7. This Agreement and any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, or for the breach or\nalleged breach thereof (whether in contract, in tort or otherwise) shall be governed by, and construed in accordance with, the laws of the State of\nNew York, without giving effect to any conflicts of laws or other principles thereof that would result in the application of the laws of another\njurisdiction. For the avoidance of doubt, the parties confirm that they are fully familiar with the provisions of Section 5-1401 of the New York\nGeneral Obligations Law, and intend to bring this Agreement within the terms thereof.\n8. (a) Any and all disputes, controversies and claims between or among the Parties and arising under, relating to or in connection with, this\nAgreement, in any manner whatsoever, whether in contract, in tort, or otherwise, and including any dispute or controversy regarding the existence,\nvalidity or enforceability of this Agreement, or the arbitrability of any dispute, controversy or claim, and whether brought by a Party and/or any of its\nparents, subsidiaries, affiliates, officers, directors or agents, on the one hand, against a Party and/or any of its parents, subsidiaries, affiliates, officers,\ndirectors or agents, on the other hand, shall be settled by arbitration by a tribunal of three (3) arbitrators constituted and acting under the United\nNations Commission on International Trade Law (UNCITRAL) Arbitration Rules then in force (the "Rules") in accordance with the following terms\nand conditions:\n(i)\nin the event of any conflict between the Rules and the provisions of this Agreement, the provisions of this Agreement shall prevail;\n(ii)\n(A) the seat of arbitration shall be London, England, unless otherwise agreed by the Parties, and the fact that hearings are held elsewhere\nshall not affect the seat of arbitration; and (B) notwithstanding\n2\nSection 7 hereof, the arbitration proceeding itself shall be governed by the Arbitration Act 1996 of the United Kingdom and the\nprocedural law of England relating to the conduct of arbitration proceedings;\n(iii) the following procedures shall govern the selection of arbitrators:\n(A)\nwhere there is only one claimant party and one respondent party, the claimant party shall appoint one arbitrator in accordance\nwith the Rules, the respondent party shall appoint one arbitrator in accordance with the Rules within thirty (30) days after the\nappointment of the first arbitrator, and the two arbitrators so appointed shall appoint the third (and presiding) arbitrator in\naccordance with the Rules within thirty (30) days after the appointment of the second arbitrator;\n(B)\nIn the event of an inability by the two party-nominated arbitrators to agree on a third arbitrator in accordance with Section 8(a)\n(iii)(A) above, the appointing authority for the third arbitrator shall be the LCIA (the "LCIA"), acting in accordance with such\nrules as it may adopt for such purpose. The LCIA shall use its best efforts to appoint such third arbitrator within thirty (30) days\nof an application being made for such purpose.\n(C)\nFollowing the appointment by a claimant or claimants or a respondent or respondents of the first arbitrator in circumstances in\nwhich there is more than one claimant party or respondent party, the remaining claimants or respondents, as the case may be,\nshall attempt to agree between or among themselves on the appointment of a second arbitrator within thirty (30) days after the\nappointment of the first arbitrator, and to appoint such individual to serve as the second arbitrator. Should they (i) fail to so agree,\nand (ii) provide written notice of such disagreement within (30) days of the appointment of the first arbitrator, then, within ten\n(10) days after the date of the first such notice, any such claimant or respondent may nominate a candidate to serve as the second\narbitrator. Within thirty (30) days after the end of such ten (10) day period for nominations, the LCIA shall choose one of the\ncandidates so nominated to serve as the second arbitrator, in accordance with such rules as it may adopt for such purpose. The\narbitration (including with respect to the appointment of the third arbitrator) shall thereafter proceed in accordance with this\nSection 8.\n(iv) The English language shall be used as the written and spoken language for the arbitration proceeding and all matters connected to the\narbitration proceeding.\n(v)\nThe arbitral tribunal shall have the power to grant any remedy or relief that it deems just and equitable and that is in accordance with\nthe\nterms of this Agreement, including specific performance, and including, but not limited to, injunctive relief, whether interim or final, and\nany such relief and any interim, provisional or conservatory measure ordered by the arbitral tribunal may be specifically enforced by any\ncourt of competent jurisdiction. Each party to the arbitration proceeding retains the right to seek interim, provisional or conservatory\nmeasures in accordance with Section 8(c), and any such request shall not be deemed incompatible with the agreement to arbitrate or\nconstitute a waiver of the right to arbitrate.\n(vi) The award of the arbitral tribunal shall be final and binding on the parties to the arbitration proceeding.\n(vii) The award of the arbitral tribunal may be enforced by any court of competent jurisdiction and may be executed against the person and\nassets of the losing party in any competent jurisdiction. For the avoidance of doubt, the parties acknowledge and agree that a court of any\njurisdiction where the assets of a party against which enforcement is sought may be found is a court of competent jurisdiction, and the\nparties irrevocably consent to the exercise of personal jurisdiction in any such court.\n(b)\nExcept for arbitration proceedings pursuant to Section 8(a), no action, lawsuit or other proceeding (other than proceedings for the\nconfirmation or enforcement of an arbitration award, an action to compel arbitration or an application for interim, provisional or\nconservatory measures in connection with the arbitration) shall be brought by or between the Parties in connection with any\nmatter arising out of or in connection with this Agreement. Each Party irrevocably waives any right under the Arbitration Act\n1996 of the United Kingdom to appeal any arbitration award to, or\n3\nto seek determination of any question of law arising in the course of arbitration from, the Commercial Court.\n(c)\nEach Party hereby irrevocably submits to (i) the non-exclusive jurisdiction of the Commercial Court in London, England in\nconnection with any proceeding for the confirmation or enforcement of an arbitration award, and (ii) the exclusive jurisdiction\nof\nthe Commercial Court in London, England in connection with any application for interim, provisional or conservatory measures\nin connection with an arbitration (in each case, as referred to in Section 8(b) above) or an action to compel arbitration (provided\nthat each Party retains the right to file a motion to compel arbitration (or its equivalent) in a court other than the Commercial\nCourt in London, England in response to an action commenced or a motion or application made by another Party or its agents,\naffiliates or representatives in such other court). Notwithstanding the foregoing, each Party agrees that it shall not, directly or\nindirectly, whether through any agent, affiliate, representative or otherwise, apply for any interim, provisional or conservatory\nmeasures in connection with an arbitration before any court located in the United States, the Russian Federation or Ukraine;\nprovided, however, that nothing in this Section 8(c) shall preclude, in any manner whatsoever, any Party from seeking any such\nmeasure based upon (A) any order or judgment, whether provisional or final, of any English court or (B) any order, directive,\naward or ruling, whether interim or final, of any arbitral tribunal in any arbitration proceeding hereunder. Each Party hereby\nirrevocably\nwaives,\nto\nthe\nfullest\nextent\npermitted\nby\napplicable\nlaw,\nany\nobjection\nthat\nit\nmay\nnow\nor\nhereafter\nhave\nto\nthe\nlaying\nof the venue of any such action, suit or proceeding brought in the Commercial Court and any claim that any such action, suit or\nproceeding brought in the Commercial Court has been brought in any inconvenient forum. Nothing herein shall affect the right of\nany Party to serve process in any other manner permitted by applicable law or to commence legal proceedings or otherwise\nproceed against another Party in any other jurisdiction in a manner not inconsistent with this Section 8(c).\n9. The provisions of this Agreement may not be amended, modified, supplemented or terminated without the prior written agreement\nof\nall\nParties, and waivers or consents to departures from the provisions hereof may not be given, except by written instrument duly executed by the Party\nagainst which enforcement of such waiver or consent to departure is sought. Altimo and certain of its affiliates, on the one hand, and Telenor and\ncertain of its affiliates, on the other, are parties to certain litigations and arbitrations in the United States, Switzerland, Russia and Ukraine concerning\ntheir rights and obligations with respect to their respective shareholdings in Kyivstar and VimpelCom (each, a "Dispute", and, collectively, the\n"Disputes"). Nothing in this Agreement shall limit or prevent Altimo, Telenor or any of their respective affiliates from continuing to prosecute or\ndefend any of the Disputes, and any Dispute may continue to be prosecuted or defended as if this Agreement did not exist (provided, however, that\nany Information received from VimpelCom or its Representatives will continue to be provided the protections afforded such Information under this\nAgreement). Each of Altimo and Telenor agrees not to seek, or permit any of its respective affiliates to seek, a dismissal, stay, postponement or\nsimilar other relief in any Dispute by reason (in whole or in part) of this Agreement or any discussions concerning the Transaction. Nothing in this\nAgreement constitutes a commitment by any Party or its Representatives to enter into the Transaction and all discussions between the Parties and\ntheir respective Representatives with regard to the Transaction remain subject to definitive written agreements being entered into by the Parties or\ntheir affiliates in respect of the Transaction.\n10. If it is found in a final judgment by an arbitral tribunal or a court of competent jurisdiction (not subject to further appeal) that any term or\nprovision hereof is invalid or unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and\neffect and (b) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n11. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by a Party without the prior written consent of the\nother Parties and any attempt to do so will be void. Subject to the\n4\npreceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and\nassigns. The terms and provisions of this Agreement are intended solely for the benefit of each Party and their respective successors or permitted\nassigns, and it is not the intention of the Parties to confer third party beneficiary rights upon any other Person.\n12. This Agreement shall become effective on the date hereof and shall continue until the earlier of (i) the signing of the definitive Transaction\ndocumentation, (ii) a period of twelve (12) months from the execution date of this Agreement, and (iii) the written agreement of the Parties to\nterminate this Agreement. The Information disclosed to the Parties shall be treated as confidential in accordance with this Agreement for a period of\ntwo (2) years from the date of termination of this Agreement. The provisions of Sections 6-11 hereof and this Section 12 shall survive any\ntermination of this Agreement. The provisions of this Agreement shall become binding upon VimpelCom upon receipt of the approval of its board of\ndirectors, as required by applicable Russian law and VimpelCom's charter in respect of interested party transactions.\n13.\nSubject to Section 4 hereof, each Party agrees that it shall, and shall cause its Representatives to, refrain from disclosing any information or\nmaking any statements regarding the Transaction in connection with the marketing of any securities issued in relation to the Transaction, including,\nwithout limitation, during any "road show" or any appearance before rating agencies, unless the form and content of such disclosure has been\nreviewed and agreed to by the other Parties.\n14. Any notice, request, consent, waiver or other communication required or permitted hereunder shall be effective only if it is in writing and\npersonally delivered or sent by facsimile or sent, postage prepaid, by registered or certified mail, return receipt requested, or by recognized overnight\ncourier service, postage or other charges prepaid, and shall be deemed given when so delivered by hand or facsimile, or when received if sent by\nmail or by courier, as follows:\nIf to Altimo:\nSavvinskaya nab., 11\nMoscow 119435\nRussia\nFacsimile No.: +7 495 981 44 88\nAttention: Yuri Musatov\nIf to Telenor:\nAdvokatene i Telenor\nSnareyveien 30\nN1331 Fornebu\nNorway\nFacsimile No.: +47 67 89 24 32 67 89 24 32\nAttention: Bjorn Hogstad\nIf to VimpelCom\n4 Krasnoproletarskaya Street\nMoscow 127006\nRussia\nFacsimile No.: +7(909) 991-7903\nAttention: Jeff McGhie\nor such other person or address as the addressee may have specified in a notice duly given to the sender as provided herein.\n5\nIN WITNESS WHEREOF, this Mutual Non-Disclosure Agreement has been duly executed and delivered by each Party as of the date first\nabove written.\nALTIMO HOLDINGS & INVESTMENT LIMITED\nBy:\n/s/ Franz Wolf\nName: Franz Wolf\nTitle: Director\nTELENOR ASA\nBy:\n/s/ Trond Westlie\nName: Trond Westlie\nTitle: EVP and CFO\nOPEN JOINT STOCK COMPANY "VIMPEL-\nCOMMUNICATIONS"\nBy: /s/ Jeffrey D. McGhie\nName: Jeffrey D. McGhie\nTitle: Vice President, General Counsel\n6	EX-99. (E) (1) 4 dex99e1.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(1)\nMUTUAL NON-DISCLOSURE AGREEMENT dated as of September 23, 2009 (this “Agreement”) among ALTIMO HOLDINGS &\nINVESTMENTS LIMITED, a company organized under the laws of the British Virgin Islands (“Altimo”), TELENOR ASA, a company organized\nunder the laws of Norway (“Telenor”), and OPEN JOINT STOCK COMPANY “VIMPEL-COMMUNICATIONS”, an open joint stock company\norganized under the laws of the Russian Federation (“VimpelCom” and, together with Altimo and Telenor, collectively, the “Parties” and each,\nindividually, a “Party”).\nWHEREAS, Altimo, Telenor and VimpelCom are currently discussing and evaluating a possible transaction (the “Transaction”) between\nAltimo, Telenor and VimpelCom, with respect to Altimo and Telenor’s respective indirect shareholdings in VimpelCom and Closed Joint Stock\nCompany “Kyivstar G.S .M.,” a closed joint stock company organized under the laws of Ukraine (“Kyivstar”);\nNOW, THEREFORE, it is hereby agreed by the Parties as follows:\n1. Each Party agrees that Information (as defined below) will be kept confidential by such Party and its Representatives and will not be\ndisclosed or divulged to any other Person (as defined below) without the express prior written consent of the other Parties. Nothing in this\nAgreement shall preclude a Party or its Representatives (as defined below) from disclosing Information which (a) is or becomes generally available\nin the public domain other than as a result of a disclosure by the Party or its Representatives receiving the Information in violation of the terms of\nthis Agreement, (b) was available to such Party or its Representatives on a non-confidential basis prior to its disclosure, (c) becomes available to\nsuch Party or it Representatives on a non-confidential basis from a source other than another Party or its Representatives or Kyivstar, provided that\nsuch source was not known by such Party (after making appropriate inquiries) to be prohibited from disclosing such Information by a contractual or\nlegal obligation to another Party or its affiliates or (d) has been developed by such Party or its Representatives independently of any Information\nsupplied hereunder. As used herein, “Information” means (i) the fact that discussions or negotiations are taking place concerning the Transaction,\n(ii) any of the discussions, negotiations, terms, conditions or other facts with respect to the Transaction (including the status thereof), (iii) any non-\npublic, confidential or proprietary information received from any Party or its Representatives or Kyivstar, whether in oral, written, visual, magnetic,\nelectronic or other form and regardless of whether such information is specifically identified as “confidential”, together with any analyses,\ncompilations, studies or other documents which contain or otherwise reflect such information, and (iv) the existence and terms of this Agreement;\nand “Person” means any individual, governmental body (including, without limitation, any court or regulatory authority), arbitration tribunal,\npartnership, corporation, the media or any other entity.\n2. Each Party is permitted to disclose the Information only to those of its subsidiaries and affiliates and its and their respective directors,\nofficers, employees, attorneys, accountants, financial advisors, financing sources and other agents (collectively, a Party’s “Representatives”) who\nneed to know such Information for the purpose of facilitating the Transaction; provided that such Party shall inform its Representatives of the\nconfidential nature of such Information, shall provide them with a copy of this Agreement and shall direct them to treat such Information as\nconfidential in accordance with the terms hereof; and provided further that for purposes of the definition of “Representatives”, neither Telenor nor\nAltimo shall be deemed affiliates of VimpelCom.\n3. Each Party will be responsible for any breach by it or, if applicable, its Representatives of this Agreement. Each Party agrees to take all\nreasonable measures to restrain its Representatives from unauthorized disclosure or use of Information.\n4. Notwithstanding the foregoing or anything to the contrary in Section 13, a Party and its Representatives may disclose any Information to\nsatisfy a deposition, interrogatory, discovery request, subpoena, civil investigation claim or other similar process of a legal demand by a competent\ncourt of law or governmental body, provided, however, that in such circumstances, the Party or Representative seeking to disclose (the “Disclosing\nParty”) shall, to the extent practicable, advise the other Parties (the “Other Parties”) prior to disclosure so that the Other Parties have an\nopportunity to seek a protective order or otherwise defend, limit or protect against such\nproduction or disclosure; provided further that the Disclosing Party shall disclose only that portion of the Information which is legally required to be\ndisclosed. Notwithstanding anything to the contrary in Section 1 or Section 13, a Party and its Representatives may disclose any Information (as\nprovided in sub-clauses (i), (ii) and (iv) only of the definition of “Information”) regarding the Transaction (a) if it determines that such disclosure is\nnecessary in accordance with the requirements of any applicable law or regulation of any governmental entity having jurisdiction over such Party or\nRepresentative or of any stock exchange on which VimpelCom or Telenor’s respective securities are listed, provided the Disclosing Party shall give\nthe Other Parties reasonable advance notice and opportunity to comment on the content of the disclosure or (b) to the extent necessary, to any\ngovernmental or regulatory authority whose approval, whether formal or informal, is required in order to complete the Transaction, provided that the\nDisclosing Party shall inform the Other Parties of the nature and content of such disclosure, as well as the details of the governmental or regulatory\nauthority to whom such disclosure has been made.\n5. Each Party represents that it is familiar with the United States Securities Exchange Act of 1934, as amended, the rules and regulations\nthereunder and related legislation and principles of common law forbidding insider trading of securities. Telenor and Altimo agree that until the\nearlier of: (i) the signing of the definitive Transaction documentation or (ii) the receipt of a notice from either Altimo or Telenor that it terminates\nfurther discussions of the Transaction, each of Telenor and Altimo shall refrain, and shall cause its respective directly controlled affiliates to refrain,\nfrom trading equity securities of VimpelCom; provided, however, that this restriction shall not apply to Alfa Bank’s brokerage business; and\nprovided further that VimpelCom shall not be deemed a controlled affiliate of either Telenor or Altimo for purposes of this Section 5. For the\navoidance of doubt, this restriction does not apply to any transaction involving VimpelCom debt securities; nor shall this Agreement constitute an\namendment or waiver of any provision of the Registration Rights Agreement dated as of May 30, 2001 between and among Telenor East Invest AS,\nEco Telecom Limited and VimpelCom.\n6. No failure or delay by a Party in exercising any right, power, privilege or remedy hereunder shall operate as a waiver hereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power, privilege or remedy hereunder. The Parties agree that\nmoney damages would not be a sufficient remedy for any breach of this Agreement by a Party or any of its Representatives. Such remedies shall not\nbe deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.\n7. This Agreement and any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, or for the breach or\nalleged breach thereof (whether in contract, in tort or otherwise) shall be governed by, and construed in accordance with, the laws of the State of\nNew York, without giving effect to any conflicts of laws or other principles thereof that would result in the application of the laws of another\njurisdiction. For the avoidance of doubt, the parties confirm that they are fully familiar with the provisions of Section 5-1401 of the New York\nGeneral Obligations Law, and intend to bring this Agreement within the terms thereof.\n8. (a) Any and all disputes, controversies and claims between or among the Parties and arising under, relating to or in connection with, this\nAgreement, in any manner whatsoever, whether in contract, in tort, or otherwise, and including any dispute or controversy regarding the existence,\nvalidity or enforceability of this Agreement, or the arbitrability of any dispute, controversy or claim, and whether brought by a Party and/or any of its\nparents, subsidiaries, affiliates, officers, directors or agents, on the one hand, against a Party and/or any of its parents, subsidiaries, affiliates, officers,\ndirectors or agents, on the other hand, shall be settled by arbitration by a tribunal of three (3) arbitrators constituted and acting under the United\nNations Commission on International Trade Law (UNCITRAL) Arbitration Rules then in force (the “Rules”) in accordance with the following terms\nand conditions:\n(i) in the event of any conflict between the Rules and the provisions of this Agreement, the provisions of this Agreement shall prevail;\n(ii) (A) the seat of arbitration shall be London, England, unless otherwise agreed by the Parties, and the fact that hearings are held elsewhere\nshall not affect the seat of arbitration; and (B) notwithstanding\n2\nSection 7 hereof, the arbitration proceeding itself shall be governed by the Arbitration Act 1996 of the United Kingdom and the\nprocedural law of England relating to the conduct of arbitration proceedings;\n(iii) the following procedures shall govern the selection of arbitrators:\n(A) where there is only one claimant party and one respondent party, the claimant party shall appoint one arbitrator in accordance\nwith the Rules, the respondent party shall appoint one arbitrator in accordance with the Rules within thirty (30) days after the\nappointment of the first arbitrator, and the two arbitrators so appointed shall appoint the third (and presiding) arbitrator in\naccordance with the Rules within thirty (30) days after the appointment of the second arbitrator;\n(B) In the event of an inability by the two party–nominated arbitrators to agree on a third arbitrator in accordance with Section 8(a)\n(iii)(A) above, the appointing authority for the third arbitrator shall be the LCIA (the “LCIA”), acting in accordance with such\nrules as it may adopt for such purpose. The LCIA shall use its best efforts to appoint such third arbitrator within thirty (30) days\nof an application being made for such purpose.\n(C) Following the appointment by a claimant or claimants or a respondent or respondents of the first arbitrator in circumstances in\nwhich there is more than one claimant party or respondent party, the remaining claimants or respondents, as the case may be,\nshall attempt to agree between or among themselves on the appointment of a second arbitrator within thirty (30) days after the\nappointment of the first arbitrator, and to appoint such individual to serve as the second arbitrator. Should they (i) fail to so agree,\nand (ii) provide written notice of such disagreement within (30) days of the appointment of the first arbitrator, then, within ten\n(10) days after the date of the first such notice, any such claimant or respondent may nominate a candidate to serve as the second\narbitrator. Within thirty (30) days after the end of such ten (10) day period for nominations, the LCIA shall choose one of the\ncandidates so nominated to serve as the second arbitrator, in accordance with such rules as it may adopt for such purpose. The\narbitration (including with respect to the appointment of the third arbitrator) shall thereafter proceed in accordance with this\nSection 8.\n(iv) The English language shall be used as the written and spoken language for the arbitration proceeding and all matters connected to the\narbitration proceeding.\n(v) The arbitral tribunal shall have the power to grant any remedy or relief that it deems just and equitable and that is in accordance with the\nterms of this Agreement, including specific performance, and including, but not limited to, injunctive relief, whether interim or final, and\nany such relief and any interim, provisional or conservatory measure ordered by the arbitral tribunal may be specifically enforced by any\ncourt of competent jurisdiction. Each party to the arbitration proceeding retains the right to seek interim, provisional or conservatory\nmeasures in accordance with Section 8(c), and any such request shall not be deemed incompatible with the agreement to arbitrate or\nconstitute a waiver of the right to arbitrate.\n(vi) The award of the arbitral tribunal shall be final and binding on the parties to the arbitration proceeding.\n(vii) The award of the arbitral tribunal may be enforced by any court of competent jurisdiction and may be executed against the person and\nassets of the losing party in any competent jurisdiction. For the avoidance of doubt, the parties acknowledge and agree that a court of any\njurisdiction where the assets of a party against which enforcement is sought may be found is a court of competent jurisdiction, and the\nparties irrevocably consent to the exercise of personal jurisdiction in any such court.\n(b) Except for arbitration proceedings pursuant to Section 8(a), no action, lawsuit or other proceeding (other than proceedings for the\nconfirmation or enforcement of an arbitration award, an action to compel arbitration or an application for interim, provisional or\nconservatory measures in connection with the arbitration) shall be brought by or between the Parties in connection with any\nmatter arising out of or in connection with this Agreement. Each Party irrevocably waives any right under the Arbitration Act\n1996 of the United Kingdom to appeal any arbitration award to, or\n3\nto seek determination of any question of law arising in the course of arbitration from, the Commercial Court.\n(c) Each Party hereby irrevocably submits to (i) the non-exclusive jurisdiction of the Commercial Court in London, England in\nconnection with any proceeding for the confirmation or enforcement of an arbitration award, and (ii) the exclusive jurisdiction of\nthe Commercial Court in London, England in connection with any application for interim, provisional or conservatory measures\nin connection with an arbitration (in each case, as referred to in Section 8(b) above) or an action to compel arbitration (provided\nthat each Party retains the right to file a motion to compel arbitration (or its equivalent) in a court other than the Commercial\nCourt in London, England in response to an action commenced or a motion or application made by another Party or its agents,\naffiliates or representatives in such other court). Notwithstanding the foregoing, each Party agrees that it shall not, directly or\nindirectly, whether through any agent, affiliate, representative or otherwise, apply for any interim, provisional or conservatory\nmeasures in connection with an arbitration before any court located in the United States, the Russian Federation or Ukraine;\nprovided, however, that nothing in this Section 8(c) shall preclude, in any manner whatsoever, any Party from seeking any such\nmeasure based upon (A) any order or judgment, whether provisional or final, of any English court or (B) any order, directive,\naward or ruling, whether interim or final, of any arbitral tribunal in any arbitration proceeding hereunder. Each Party hereby\nirrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying\nof the venue of any such action, suit or proceeding brought in the Commercial Court and any claim that any such action, suit or\nproceeding brought in the Commercial Court has been brought in any inconvenient forum. Nothing herein shall affect the right of\nany Party to serve process in any other manner permitted by applicable law or to commence legal proceedings or otherwise\nproceed against another Party in any other jurisdiction in a manner not inconsistent with this Section 8(c).\n9. The provisions of this Agreement may not be amended, modified, supplemented or terminated without the prior written agreement of all\nParties, and waivers or consents to departures from the provisions hereof may not be given, except by written instrument duly executed by the Party\nagainst which enforcement of such waiver or consent to departure is sought. Altimo and certain of its affiliates, on the one hand, and Telenor and\ncertain of its affiliates, on the other, are parties to certain litigations and arbitrations in the United States, Switzerland, Russia and Ukraine concerning\ntheir rights and obligations with respect to their respective shareholdings in Kyivstar and VimpelCom (each, a “Dispute”, and, collectively, the\n“Disputes”). Nothing in this Agreement shall limit or prevent Altimo, Telenor or any of their respective affiliates from continuing to prosecute or\ndefend any of the Disputes, and any Dispute may continue to be prosecuted or defended as if this Agreement did not exist (provided, however, that\nany Information received from VimpelCom or its Representatives will continue to be provided the protections afforded such Information under this\nAgreement). Each of Altimo and Telenor agrees not to seek, or permit any of its respective affiliates to seek, a dismissal, stay, postponement or\nsimilar other relief in any Dispute by reason (in whole or in part) of this Agreement or any discussions concerning the Transaction. Nothing in this\nAgreement constitutes a commitment by any Party or its Representatives to enter into the Transaction and all discussions between the Parties and\ntheir respective Representatives with regard to the Transaction remain subject to definitive written agreements being entered into by the Parties or\ntheir affiliates in respect of the Transaction.\n10. If it is found in a final judgment by an arbitral tribunal or a court of competent jurisdiction (not subject to further appeal) that any term or\nprovision hereof is invalid or unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and\neffect and (b) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n11. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by a Party without the prior written consent of the\nother Parties and any attempt to do so will be void. Subject to the\n4\npreceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and\nassigns. The terms and provisions of this Agreement are intended solely for the benefit of each Party and their respective successors or permitted\nassigns, and it is not the intention of the Parties to confer third party beneficiary rights upon any other Person.\n12. This Agreement shall become effective on the date hereof and shall continue until the earlier of (i) the signing of the definitive Transaction\ndocumentation, (ii) a period of twelve (12) months from the execution date of this Agreement, and (iii) the written agreement of the Parties to\nterminate this Agreement. The Information disclosed to the Parties shall be treated as confidential in accordance with this Agreement for a period of\ntwo (2) years from the date of termination of this Agreement. The provisions of Sections 6-11 hereof and this Section 12 shall survive any\ntermination of this Agreement. The provisions of this Agreement shall become binding upon VimpelCom upon receipt of the approval of its board of\ndirectors, as required by applicable Russian law and VimpelCom’s charter in respect of interested party transactions.\n13. Subject to Section 4 hereof, each Party agrees that it shall, and shall cause its Representatives to, refrain from disclosing any information or\nmaking any statements regarding the Transaction in connection with the marketing of any securities issued in relation to the Transaction, including,\nwithout limitation, during any “road show” or any appearance before rating agencies, unless the form and content of such disclosure has been\nreviewed and agreed to by the other Parties.\n14. Any notice, request, consent, waiver or other communication required or permitted hereunder shall be effective only if it is in writing and\npersonally delivered or sent by facsimile or sent, postage prepaid, by registered or certified mail, return receipt requested, or by recognized overnight\ncourier service, postage or other charges prepaid, and shall be deemed given when so delivered by hand or facsimile, or when received if sent by\nmail or by courier, as follows:\nIf to Altimo:\nSavvinskaya nab., 11\nMoscow 119435\nRussia\nFacsimile No.: +7 495 981 44 88\nAttention: Yuri Musatov\nIf to Telenor:\nAdvokatene i Telenor\nSnarøyveien 30\nN1331 Fornebu\nNorway\nFacsimile No.: +47 67 89 24 32\nAttention: Bjørn Hogstad\nIf to VimpelCom:\n4 Krasnoproletarskaya Street\nMoscow 127006\nRussia\nFacsimile No.: +7(909) 991-7903\nAttention: Jeff McGhie\nor such other person or address as the addressee may have specified in a notice duly given to the sender as provided herein.\n5\nIN WITNESS WHEREOF, this Mutual Non-Disclosure Agreement has been duly executed and delivered by each Party as of the date first\nabove written.\nALTIMO HOLDINGS & INVESTMENT LIMITED\nBy: /s/ Franz Wolf\nName: Franz Wolf\nTitle: Director\nTELENOR ASA\nBy: /s/ Trond Westlie\nName: Trond Westlie\nTitle: EVP and CFO\nOPEN JOINT STOCK COMPANY “VIMPEL-\nCOMMUNICATIONS”\nBy: /s/ Jeffrey D. McGhie\nName: Jeffrey D. McGhie\nTitle: Vice President, General Counsel\n6
0564e5bce70dd2df5473d64da16ddbe3.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 d380892dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nLOGO\nWells Fargo Securities, LLC\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention:\nAri D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the “Company”), which is represented by Wells Fargo\nSecurities LLC (“Wells Fargo”), through the purchase of all the capital stock of the Company (the “Transaction”). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “the Company\nRepresentatives”) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\nLOGO\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 2\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company’s prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany of your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\n2. You and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company’s sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company’s written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives’ possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5. You acknowledge that neither the Company, nor Wells Fargo, nor any of the Company’s other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7. Except as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will promptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 4\nFor the purposes for this letter agreement, “Derivative Securities” means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\n9. You agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company’s operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company’s potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\n10. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\n11. The provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- 9 with respect to such offer; or (c) the Company’s Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 5\ninitiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\n12. You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company’s Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company’s favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\n13. You agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\n14. This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\n15. This letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\n16. This letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy:\n/s/ Minoru Noguchi\nName: Minoru Noguchi\nTitle: President	EX-99.(D)(2) 9 d380892dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nl».LOGO\nWells Fargo Securities, LL.C\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention: Ari D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the “Company”), which is represented by Wells Fargo\nSecurities LLC (“Wells Fargo™), through the purchase of all the capital stock of the Company (the “Transaction”). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “the Company\nRepresentatives™) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\n».LOGO\nWells Fargo Securities, LLC February 28, 2011 Page 2 Accordingly, you hereby agree that: 1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company’s prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany of your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\nYou and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\nIn the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company’s sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\nIf you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company’s written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives’ possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5. You acknowledge that neither the Company, nor Wells Fargo, nor any of the Company’s other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6.  You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7.  Except as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8.  You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will promptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC February 28, 2011 Page 4 10. 11. For the purposes for this letter agreement, “Derivative Securities” means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\nYou agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company’s operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company’s potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\nYou agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\nThe provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- 9 with respect to such offer; or (c) the Company’s Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC February 28, 2011 Page 5 12. 13. 14. 15. 16. initiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\nYou acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company’s Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company’s favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\nYou agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\nThis letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\nThis letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy: /s/  Minoru Noguchi\nName: Minoru Noguchi\nTitle: President	EX-99.(D)(2) 9 d380892dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nLOGO\nWells Fargo Securities, LLC\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention:\nAri D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the "Company"), which is represented by Wells Fargo\nSecurities LLC ("Wells Fargo"), through the purchase of all the capital stock of the Company (the "Transaction"). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, "the Company\nRepresentatives") to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, "your Representatives") and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the "Information." The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\nLOGO\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 2\nAccordingly, you hereby agree that:\n1.\nYou and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company's prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany\nof your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\n2.\nYou and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company's prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\n3.\nIn the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company's sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company's written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives' possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5.\nYou acknowledge that neither the Company, nor Wells Fargo, nor any of the Company's other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n"Exchange Act"), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6.\nYou hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7.\nExcept as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8.\nYou agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company's Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions)\nany\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a "group" (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will\npromptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 4\nFor the purposes for this letter agreement, "Derivative Securities" means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\n9.\nYou agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company's operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company's potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\n10. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\n11. The provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person's acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- with respect to such offer; or (c) the Company's Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany's directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 5\ninitiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\n12. You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company's Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company's favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\n13. You agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\n14. This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\n15. This letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\n16. This letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected\nor\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy:\n/s/ Minoru Noguchi\nName: Minoru Noguchi\nTitle: President	EX-99.(D)(2) 9 d380892dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nLOGO\nWells Fargo Securities, LLC\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention:\nAri D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the “Company”), which is represented by Wells Fargo\nSecurities LLC (“Wells Fargo”), through the purchase of all the capital stock of the Company (the “Transaction”). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “the Company\nRepresentatives”) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\nLOGO\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 2\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company’s prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany of your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\n2. You and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company’s sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company’s written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives’ possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5. You acknowledge that neither the Company, nor Wells Fargo, nor any of the Company’s other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7. Except as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will promptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 4\nFor the purposes for this letter agreement, “Derivative Securities” means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\n9. You agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company’s operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company’s potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\n10. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\n11. The provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- 9 with respect to such offer; or (c) the Company’s Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 5\ninitiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\n12. You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company’s Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company’s favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\n13. You agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\n14. This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\n15. This letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\n16. This letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy:\n/s/ Minoru Noguchi\nName: Minoru Noguchi\nTitle: President
0587275477c6ad6d0d72419383e04b88.pdf	effective_date jurisdiction party term	EX-10 6 ex10ii26.htm EXHIBIT 10.(II)(26)\nExhibit 10.(ii)(26)\nExecutive Non-Disclosure and\nNon-Solicitation of Employees Agreement\nEXECUTIVE A\n______________________________________________________________________________\nIn order for Sears, Roebuck and Co., including its subsidiaries (collectively referred to as "Sears'' or the "Company"), to\nmaintain a competitive edge, Sears must protect its Confidential Information and the stability of its workforce.\nTherefore, as a condition of employment with Sears, I agree as follows:\nDEFINITIONS\n1. "Sears Confidential Information" means trade secrets and non-public information which Sears designates as being\nconfidential or which, under the circumstances surrounding disclosure, should be treated as confidential, including,\nwithout limitation, any information received in confidence or developed by Sears, its long and short term goals, vendor\nand supply agreements, databases, methods, programs, techniques, business information, financial information,\nmarketing and business plans, proprietary software, personnel information and files, client information, pricing, and\nother information relating to the business of Sears that is not known generally to the public or in the industry and is of\nvalue to Sears.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION\n2. I will not, during the term of my employment with Sears or thereafter, except as Sears may otherwise consent or direct\nin writing, reveal or disclose, sell, use, lecture upon or publish any Sears Confidential Information until such time as the\ninformation becomes publicly known through a source other than me.\n3. I understand that if I possess any proprietary information of another person or company as a result of prior\nemployment or otherwise, Sears expects and requires that I will honor any and all legal obligations that I have to that\nperson or company with respect to proprietary information, and I will refrain from any unauthorized use or disclosure of\nsuch information.\nRETURN OF SEARS PROPERTY\n4. All documents and other tangible property which relate to the business of Sears are the exclusive property of Sears,\neven if I authored or created them. I agree to return all such documents and tangible property to Sears upon termination\nof employment or at such earlier time as Sears may request me to do so.\nCONFLICT OF INTEREST\n5. During my employment, neither I nor members of my immediate family will have financial investments or other\ninterests or relationships with the Company's customers, suppliers or competitors which might impair my independence\nof judgment on behalf of the Company. I also agree not to engage in any competitive activity against the Company and\nwill avoid any outside activity that could adversely affect the independence and objectivity of my judgment, interfere\nwith the timely and effective performance of my duties and responsibilities to the Company, discredit the Company or\notherwise conflict with the Company's best interests.\nNON-SOLICITATION OF EMPLOYEES\n6. During my employment with Sears and for one (1) year thereafter, I shall not, directly or indirectly, solicit or\nencourage any person to leave her/his employment with Sears or assist in any way with the hiring of any Sears employee\nby any other business.\nIRREPARABLE HARM\n7. Irreparable harm would result from any breach by me of the provisions of this Agreement, and monetary damages\nalone would not provide adequate relief for any such breach. Accordingly, if I breach or threaten to breach this\nAgreement, injunctive relief in favor of Sears is proper, without the necessity of Sears posting a bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which\nmay have resulted from a breach of this Agreement, including a forfeiture of any future payments and a return of any\npayments already received by me.\nSEVERABILITY\n8. If any provision of this Agreement is held invalid by a court, the remaining provisions will nonetheless be enforced\naccording to their terms. Further, if any provision is held to be overbroad, a court may modify that provision to the extent\nnecessary to make the provision enforceable according to applicable law and enforce the provision as modified.\nGOVERNING LAW\n9. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of\nIllinois. I agree that the state and federal courts located in the State of Illinois shall have exclusive jurisdiction in any\naction, suit or proceeding based on or arising out of this Agreement, and I submit to the personal jurisdiction of such\ncourts, consent to the service of process in connection with any action, suit or proceeding against me, and waive any\nobjections to jurisdiction, venue or service of process.\nBURDEN AND BENEFIT\n10. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale\nof assets, or otherwise. This Agreement shall be binding whether it is between Sears and me or between any successor or\nassign of Sears and me.\nNO EFFECT ON TERM OF EMPLOYMENT\n11. Nothing in this Agreement prevents or limits my right to terminate my employment at any time for any reason, and\nnothing in this Agreement prevents or limits the Company from terminating my employment at any time for any reason.\nI understand and agree that there exist no promises or guarantees of permanent employment or employment for any\nspecified term by the Company.\nENTIRE AGREEMENT\n12. I understand that this Agreement contains the entire agreement and understanding between Sears and me with respect\nto the provisions contained in this Agreement, and that no representations, promises, agreements, or understandings,\nwritten or oral, related thereto which are not contained in this Agreement will be given any force or effect. No change or\nmodification of this Agreement will be valid or binding unless it is in writing and signed by the party against whom the\nchange or modification is sought to be enforced. I further understand that even if Sears waives or fails to enforce any\nprovision of this Agreement in one instance, that will not constitute a waiver of any other provisions of this Agreement\nat this time, or a waiver of that provision at any other time.\nEXECUTIVE A\nSEARS, ROEBUCK AND CO.\n___________ ______________________\nSignature of Executive\n_________________________________\n___________ ______________________\nDate\nBy:______________________________\n___________ _____________________\nAddress - Street\n_____________ ____________________\nTitle\n___________ ______________________\nAddress - City, State, Zip Code\n_____________ ____________________\nDate\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of ________ __, 2001 (the "Agreement"), Sears, Roebuck and Co., including its\nsubsidiaries (collectively referred to as "Sears"), and EXECUTIVE A ("Executive"), intending to be legally bound and for good and valuable\nconsideration, agree as follows:\n1. Severance Pay.\n(a) Should Executive be involuntarily terminated from Sears for any reason other than Cause (as defined below in Section 2(b)), death, total and\npermanent disability, or voluntary retirement, and other than a Change in Control Termination (as defined below in Section 2(b)), Sears agrees to pay\nseverance, subject to the provisions of Sections 8(e) and 12 herein, to Executive in an amount equal to: (i) an annual bonus, based on actual results\nfor the year in which active employment ends, pro rata through the date active employment ends, plus (ii) two (2) years of salary continuation,\nwhich will include annual base salary plus annual bonus at target as determined for the year in which active employment ends. Any such annual\nbonus amounts shall be paid at the same time as the annual bonus for that year is paid to Sears executives generally. The "annual bonus" consists of\npayments made under the Annual Incentive Compensation Plan or any successor annual incentive program. A lump sum payment will be made for\nany vacation benefits that accrued prior to the end of active employment. No vacation will accrue after the date active employment ends. After the\nfirst year of salary continuation, salary continuation payments and annual bonus payments will be subject to mitigation by the amount of any\ncompensation and benefits to which Executive is entitled because of any employment, including self-employment. All salary continuation payments,\nbenefits and annual bonus payments will terminate and forever lapse if Executive is employed by a "Sears Competitor" as defined in Section 8(b)\nherein.\n(b) During the salary continuation period, Executive will be placed on a leave of absence status and be entitled to all benefits (other than as specified\nabove) for which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability, Flexible\nSpending Accounts and financial planning. Executive and eligible dependents shall be entitled to continue to participate in medical and dental plans\nto the same extent and on the same cost-sharing basis as if Executive's employment with Sears had continued during such period. However, in the\nevent Executive becomes employed by another employer and is covered by such employer's health benefits plan or program, the medical and dental\nbenefits provided by Sears hereunder shall be secondary to such employer's health benefits plan or program in accordance with the terms of Sears\nhealth benefit plans.\n(c) Any stock options, stock appreciation rights, or restricted stock, except as otherwise provided for herein, granted to Executive prior to the date\nactive employment ends, will continue to vest during the salary continuation period. Executive shall have the right to exercise any outstanding and\nfully vested stock option, stock appreciation right, or other exercisable equity-based award in accordance with its respective grant letter. Any\nrestricted stock grant that has not yet vested by the end of the salary continuation period will be governed by the terms of its respective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be calculated on a pro rata basis as of the\ndate active employment ends, not inclusive of the salary continuation period. Payment will be made to Executive at the same time that other Sears\nexecutives receive any such payout under the 1999-2001 cycle of the Long Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(f) At the beginning of the salary continuation period, Executive will be immediately eligible for outplacement services at Sears expense. Sears and\nExecutive will mutually agree on which outplacement firm, among current vendors used by Sears, will provide these services. Such services will be\nprovided for up to one (1) year from the beginning of the salary continuation period or until employment is obtained, whichever occurs first.\n2. Change in Control.\n(a) Sears shall pay to Executive, and Executive shall be entitled to receive, the Change in Control Severance Pay described in Section 3, if\nExecutive's employment is terminated under the circumstances described below (a "Change in Control Termination"), provided, however, that\nnotwithstanding the foregoing, a termination by reason of death, disability or voluntary retirement, by Sears for Cause, or by the Executive without\nGood Reason, shall not be deemed to be a Change in Control Termination.\n(b) For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(i) "Change in Control Termination" means the termination of Executive's employment with Sears and all of its subsidiaries which is:\n1. on the day of, or within 24 months after, the occurrence of a Change in Control, as such term is defined in Appendix\nA;\n2. prior to a Change in Control but at the request of any third-party participating in or causing the Change in Control;\n3. by Sears without Cause during a "Potential Change in Control Period" (as defined below), provided that a Change in\nControl occurs before the Potential Change in Control Period lapses; or\n4. by Executive for Good Reason during a Potential Change in Control Period, provided that a Change in Control occurs\nbefore the Potential Change in Control Period lapses;\n(The parties agree and understand that a termination described in Section 1(a) during a Potential Change in Control Period may later\nbecome a Change in Control Termination and entitle the Executive to any additional benefits set forth in Section 2(a).)\nii. "Cause" shall mean (1) a material breach by Executive (other than a breach resulting from Executive's incapacity due to a\nmental or physical disability) of Executive's duties and responsibilities (which upon a Change in Control, shall not differ\n(except with the consent of Executive) in any material respect from Executive's duties and responsibilities during the ninety\n(90) day period immediately prior to the Change in Control or any Potential Change in Control Period during which a Change\nin Control occurs), which breach is demonstrably willful and deliberate on Executive's part, is committed in bad faith or\nwithout reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of time\nafter receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving\nmoral turpitude, or (3) dishonesty or willful misconduct in connection with Executive's employment; and\niii. "Good Reason" shall mean a significant reduction in Executive's responsibilities, title, annual base salary, annual incentive\ncompensation target or long-term incentive compensation opportunity from those in effect immediately prior to the Change in\nControl (or to the Potential Change in Control Period during which the Change in Control occurs), or Executive's mandatory\nrelocation to an office more than 50 miles from the primary location at which Executive is required to perform Executive's\nduties immediately prior to the Change in Control (or to the Potential Change in Control Period during which the Change in\nControl occurs), and which reduction or relocation is not remedied in a reasonable period of time (which shall not be greater\nthan thirty (30) days) after receipt of written notice from Executive specifying that "Good Reason" exists for purposes of this\nAgreement. "Good Reason" shall also include failure of a successor company to assume or fulfill the obligations under this\nAgreement, including the prompt payment of any amounts due to Executive hereunder.\niv. "Potential Change in Control Period" shall commence upon the occurrence of a "Potential Change in Control" (as defined\nbelow) and shall lapse immediately following the first to occur of (a) a Change in Control, or, (b) the one-year anniversary of\nthe occurrence of a Potential Change in Control.\nv. "Potential Change in Control" shall be deemed to have occurred if the event set forth in any one of the following subsections\nshall have occurred:\n1. Sears enters into an agreement the consummation of which would result in the occurrence of a Change in Control;\n2. Sears or any other party publicly announces an intention to take or consider taking actions which, if consummated, would constitute a\nChange in Control,\n3. there occurs an acquisition of 15% of Sears shares or other voting securities that meets the criteria (other than the 20% ownership threshold)\nset forth in Section (a) of the definition of "Change in Control" in Appendix A, or\n4. the Board adopts a resolution to the effect that, for purposes of this agreement, a Potential Change in Control has occurred.\n(c) Executive acknowledges that Sears shall have the right to propose modifications to the subparagraphs defining a "Change in Control" [Appendix\nA] and "Good Reason" [2(b)(iii)]. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human Resources\nDepartment as to any proposed modification to these subparagraphs. The final decision as to any modification to which Executive makes a timely\nobjection will be at the sole discretion of Sears. Modifications shall be proposed only if the conditions set forth in the then current Appendix A are\nnot present and may not be proposed during a Potential Change in Control Period. The right to make modifications under this subparagraph shall\nexpire and lapse upon the occurrence of a Change in Control event as defined in the then current Appendix A.\n(d) This Agreement will automatically terminate and its provisions and covenants will become null and void twenty-four (24) months after the\noccurrence of a Change in Control.\n3. Change in Control Severance Pay.\n(a) In the event of a Change in Control Termination, Sears agrees to pay Executive's base salary and annual bonus at target, pro rata through the date\nof the Change in Control Termination, plus severance pay equal to two (2) multiplied by the sum of (i) Executive's annual base salary in effect at the\ndate of the Change in Control Termination or, if greater, immediately prior to the Change in Control or the Potential Change in Control Period during\nwhich the Change in Control occurs, plus (ii) Executive's annual bonus at target as determined for the year in which termination occurs. Such\namounts will be paid in an undiscounted lump sum within thirty (30) days of Change in Control Termination.\n(b) During the two (2) year period following the Change in Control Termination, Executive will be placed on a leave of absence status and be\nentitled to all benefits for which Executive is eligible to participate, as provided in section 1 (b) above.\n(c) Any stock options, stock appreciation rights, or restricted stock that were outstanding immediately prior to the Change in Control Termination\nshall, to the extent not then vested, fully vest as of the date of the Change in Control Termination. Executive shall have the right to exercise any\noutstanding stock option or stock appreciation right until the expiration date of such stock option or stock appreciation right as set forth in its\nrespective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be paid at the target of the entire performance\ncycle. Payment will be made to Executive at the same time that other Sears executives receive any such payout under the 1999-2001 cycle of the\nLong Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at the time of the Change in Control Termination in accordance with the provisions of its respective program document or\ngrant letter.\n(f) Executive shall be entitled to outplacement benefits as described in Section 1(f), above.\n4. Gross-Up Payment.\na. If, for any reason, the Total Payments (as defined below) will be subject to excise taxes under Section 4999 of the Internal Revenue\nCode of 1986, as amended (the "Code") or any successor or similar provision ("Excise Tax"), Sears shall pay to Executive an\nadditional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on\nthe Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall\nbe equal to the Total Payments. The Total Payment will be subject to Excise Tax if any or all of the Total Payment is deemed to be\n"excess parachute payments" within the meaning of Section 280G(b)(1) of the Code or any successor or similar provision.\nb. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the\nhighest marginal rate in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the\nhighest marginal rate in the state and locality of Executive's residence on the date on which the Gross-Up Payment is calculated, net\nof the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.\nc. "Total Payments" is defined as any or all of the amounts payable to Executive under this Agreement, after deduction of all applicable\nfederal, state and local income and employment taxes (except for Excise Taxes, as defined above) including such amounts that are in\nthe nature of compensation paid or payable by Sears or any of its subsidiaries in connection with a Change in Control.\n5. Non-Disparagement. Executive will not take any action detrimental to the interests of Sears or its affiliates, make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or directors,\nand will not authorize others to make derogatory or disparaging statements on Executive's behalf.\n6. Intellectual Property Rights. Executive acknowledges that Executive's development, work or research on any and all inventions or expressions of\nideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such invention or\nexpression of an idea relates to the business of Sears, or relates to Sears actual or demonstrably anticipated research or development, or results from\nany work performed by Executive for or on behalf of Sears, are hereby assigned to Sears, including Executive's entire rights, title and interest.\nExecutive will promptly disclose such invention or expression of an idea to Executive's management and will, upon request, promptly execute a\nspecific written assignment of title to Sears. If Executive currently holds any inventions or expressions of an idea, regardless of whether they were\npublished or filed with the U.S . Patent and Trademark Office, or is under contract to not so assign, Executive will list them on the last page of this\nAgreement.\n7. Confidentiality. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and discussions\nwith Sears on this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner except: (a) as required by\nlaw; or (b) to Executive's spouse or financial/legal advisors, all of whom shall agree to keep such information confidential.\n8. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive's position at Sears, Executive has learned or developed,\nor will learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\n(i) Therefore, for one (1) year from Executive's last day of active employment, whether or not Executive receives Severance Pay,\nExecutive will not, directly or indirectly, aid, assist, participate in, consult with, render services for, accept a position with, become\nemployed by, or otherwise enter into any relationship with (other than having a passive ownership interest in) any Sears Competitor.\nii. For purposes of this Agreement, "Sears Competitor" means\n(1) Those companies listed on Appendix B, each of which Executive acknowledges is a Sears Competitor, whether or\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 8(b)(ii)(2), below, and\n(2) Any party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair, home services, and/or\nauto repair services, with combined annual gross sales in excess of $500 million, (B) engaged in any credit card or\nother consumer financial services business, with managed assets in excess of $5 billion, (C) any vendor with\ncombined annual gross sales of services or merchandise to Sears in excess of $100 million, or (D) a party engaged in\nany other line of business, in which Sears has commenced business prior to the end of Executive's active employment,\nwith Sears having annual gross sales in that line of business in excess of $50 million.\n(iii) Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to\ninclude (1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are\nnew for Sears. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human\nResources Department to any proposed modifications to Appendix B. The final decision as to any modification to\nwhich Executive makes a timely objection will be at the sole discretion of Sears.\n(iv) Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada\nand that this non-compete provision applies in any state of the United States, Puerto Rico or province of Canada in\nwhich Sears does business.\n(c) Executive will provide Sears with such information as Sears may from time to time request to determine Executive's compliance with this\nAgreement. Executive authorizes Sears to contact Executive's future employers and other entities with which Executive has any business relationship\nto determine Executive's compliance with this Agreement or to communicate the contents of this Agreement to such employers and entities.\nExecutive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or communications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information and to\notherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this Agreement are\nreasonable.\n(e) Upon the termination of Executive's employment by either party, Executive will execute a binding General Release and Waiver of claims in a\nform to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in a form similar to the attached\nsample. If the General Release and Waiver is not signed or is signed but subsequently revoked, Executive will not receive Severance Pay (if any) or\nany other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches this Agreement,\ninjunctive relief in favor of Sears is proper without the necessity of Sears posting bond. Moreover, any award of injunctive relief shall not preclude\nSears from seeking or recovering any lawful compensatory damages which may have resulted from a breach of this Agreement, including a\nforfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears in any\ninstance shall not be deemed a waiver of such provision in the future.\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 8(b), above,\ncommence during Executive's continued employment with Sears, by written request to the Chief Executive Officer of Sears or the equivalent. Such a\nrequest will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears' absolute discretion.\n9. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of any compensation or benefits\npayable to Executive hereunder; and except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 8(e) and 12, such\ncompensation and benefits shall not be reduced whether or not Executive obtains other employment.\n10. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period of\nactive employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved. Sears will reimburse\nExecutive for reasonable travel and out-of-pocket expenses.\n11. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n12. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement provision\n(Section 5 herein), and the non-competition provisions (Section 8 herein) of this Agreement, Sears obligation to make salary continuation or any\nother payments under this Agreement will immediately cease.\n13. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be deemed\nto be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised\nfrom this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if\nsuch provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not been originally incorporated\nherein, as the case may be.\n14. This Agreement will be governed under the internal laws of the state of Illinois. Executive agrees that the state and federal courts located in the\nstate of Illinois shall have exclusive jurisdiction in any action, suit or proceeding based on or arising out of this Agreement, and Executive hereby:\n(a) submits to the personal jurisdiction of such courts; (b) consents to the service of process in connection with any action, suit, or proceeding against\nExecutive; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction, venue\nor service of process.\n15. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is illegal or\nunenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory jury.\nFurther, should any claim arising out of Executive's employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury or\nadvisory jury.\n16. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive's employment with Sears is\nterminable "at-will" by either party with or without cause and with or without notice.\n17. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions of this\nAgreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance plan or\nprogram. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained herein (with\nthe exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated _______________, 200__) and may be\namended only by a writing signed by an authorized officer of Sears.\n18. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n19. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or otherwise. This\nAgreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears and Executive.\n20. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date set forth\nbelow.\nSEARS, ROEBUCK AND CO.\n_ ___ ___ ___ ___ ___ ____ ___ ___ __\nEXECUTIVE A\nBY:____________________________\n_ ___ ___ ___ ___ ___ ____ ___ ___ __\nDate\n___ ___ ___ ___ ____ ___ ___ ___ ___\nDate\nA "change in control" or "Change in Control" shall mean:\n(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as\namended (the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of\n20% or more of either (i) the then outstanding common shares of the Company (the "Outstanding Company Common Shares") or (ii) the combined\nvoting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding\nCompany Voting Securities"); provided, however, that the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly\nfrom the Company (excluding an acquisition by virtue of the exercise of a conversion privilege); (ii) any acquisition by the Company or any of its\nsubsidiaries; (iii) any acquisition by any employee benefit plan (or any related trust) sponsored or maintained by the Company of any of its\nsubsidiaries; or (iv) any acquisition by any corporation pursuant to a reorganization, merger or consolidation, if, following such reorganization,\nmerger or consolidation, the conditions described in clauses (i), (ii) and (iii) of (c) below are satisfied; or\n(b) Individuals who, as of the date hereof, constitute the Board of Directors of the Company (the "Board") (as of the date hereof, the "Incumbent\nBoard") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to\nthe date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the\ndirectors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding,\nfor this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such\nterms are used under Section 14 of the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person\nother than the Board; or\n(c) Consummation of a reorganization, merger or consolidation unless, following such reorganization, merger or consolidation, (i) more than 60% of,\nrespectively, the then outstanding common shares of the corporation resulting from such reorganization, merger or consolidation and the combined\nvoting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially\nowned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such reorganization, merger or\nconsolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company,\nany of its subsidiaries, any employee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such\ncorporation resulting from such reorganization, merger or consolidation and any Person beneficially owning, immediately prior to such\nreorganization, merger or consolidation, directly or indirectly, 20% or more of the Outstanding Company Common Shares or Outstanding Company\nVoting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding common shares of\nthe corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities\nof such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the\ncorporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the\ninitial agreement providing for such reorganization, merger or consolidation; or\n(d) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company; or\n(e) Consummation of the sale or other disposition of all or substantially all of the assets of the Company, other than to a corporation, with respect to\nwhich following such sale or other disposition, (i) more then 60% of, respectively, the then outstanding common shares of such corporation and the\ncombined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then\nbeneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of\nthe Outstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such sale or other disposition in\nsubstantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the Outstanding Company Common\nShares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company, any of its subsidiaries, and any\nemployee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such corporation and any Person\nbeneficially owning, immediately prior to such sale or other disposition, directly or indirectly, 20% or more of the Outstanding Company Common\nShares or Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the\nthen outstanding common shares of such corporation and the combined voting power of the then outstanding voting securities of such corporation\nentitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of such corporation were\nmembers of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other\ndisposition of assets of the Company.\nFor purposes of the foregoing definition of "Change in Control", a "subsidiary" of the Company shall mean any corporation in which the Company,\ndirectly or indirectly, holds a majority of the voting power of such corporation's outstanding shares of capital stock.\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER SIGNING.\nANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL COUNSEL,\nSEARS, ROEBUCK AND CO., 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO CONSULT WITH AN\nATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting by,\nthrough, or under me hereby release, waive, and forever discharge Sears, Roebuck and Co., its current and former agents, subsidiaries, affiliates,\nemployees, officers, shareholders, successors, and assigns ("Sears") from any and all liability, actions, charges, causes of action, demands, damages,\nor claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or connected with, my\nemployment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in contract (oral or written,\nexpress or implied), or in tort, or pursuant to statute, including any claim for age or other types of discrimination under the Age Discrimination in\nEmployment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state, or local law or ordinance, to\nthe fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General Release and Waiver does not apply\nto any claims or rights that may arise after the date that I signed this General Release and Waiver. I understand that Sears is not admitting to any\nviolation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file a\ncharge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under benefit\nplans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family and Medical\nLeave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent and warrant that\nI have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim under\nthe ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under ADEA, I shall\nbe liable to Sears for its reasonable attorney's fees and other litigation costs and expenses incurred in defending against such a suit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General Release\nand Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by notifying the\nGeneral Counsel of Sears in writing. I understand that this General Release and Waiver will not be effective until after this seven (7) day revocation\nperiod has expired.\nDate: SAMPLE ONLY - DO NOT SIGN\nSigned by: SAMPLE ONLY - DO NOT SIGN\nWitness by:____________________________	EX-10 6 ex10ii26.htm EXHIBIT 10.(IT)(26)\nExhibit 10.(ii)(26)\nExecutive Non-Disclosure and\nNon-Solicitation of Employees Agreement\nEXECUTIVE A\n \nIn order for Sears, Roebuck and Co., including its subsidiaries (collectively referred to as "Sears" or the "Company"), to\nmaintain a competitive edge, Sears must protect its Confidential Information and the stability of its workforce.\nTherefore, as a condition of employment with Sears, I agree as follows:\nDEFINITIONS\n1. "Sears Confidential Information" means trade secrets and non-public information which Sears designates as being\nconfidential or which, under the circumstances surrounding disclosure, should be treated as confidential, including,\nwithout limitation, any information received in confidence or developed by Sears, its long and short term goals, vendor\nand supply agreements, databases, methods, programs, techniques, business information, financial information,\nmarketing and business plans, proprietary software, personnel information and files, client information, pricing, and\nother information relating to the business of Sears that is not known generally to the public or in the industry and is of\nvalue to Sears.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION\n2. I will not, during the term of my employment with Sears or thereafter, except as Sears may otherwise consent or direct\nin writing, reveal or disclose, sell, use, lecture upon or publish any Sears Confidential Information until such time as the\ninformation becomes publicly known through a source other than me.\n3. I understand that if I possess any proprietary information of another person or company as a result of prior\nemployment or otherwise, Sears expects and requires that I will honor any and all legal obligations that I have to that\nperson or company with respect to proprietary information, and I will refrain from any unauthorized use or disclosure of\nsuch information.\nRETURN OF SEARS PROPERTY\n4. All documents and other tangible property which relate to the business of Sears are the exclusive property of Sears,\neven if I authored or created them. I agree to return all such documents and tangible property to Sears upon termination\nof employment or at such earlier time as Sears may request me to do so.\nCONFLICT OF INTEREST\n5. During my employment, neither I nor members of my immediate family will have financial investments or other\ninterests or relationships with the Company's customers, suppliers or competitors which might impair my independence\nof judgment on behalf of the Company. I also agree not to engage in any competitive activity against the Company and\nwill avoid any outside activity that could adversely affect the independence and objectivity of my judgment, interfere\nwith the timely and effective performance of my duties and responsibilities to the Company, discredit the Company or\notherwise conflict with the Company's best interests.\nNON-SOLICITATION OF EMPLOYEES\n6. During my employment with Sears and for one (1) year thereafter, I shall not, directly or indirectly, solicit or\nencourage any person to leave her/his employment with Sears or assist in any way with the hiring of any Sears employee\nby any other business.\nIRREPARABLE HARM\n7. Irreparable harm would result from any breach by me of the provisions of this Agreement, and monetary damages\nalone would not provide adequate relief for any such breach. Accordingly, if I breach or threaten to breach this\nAgreement, injunctive relief in favor of Sears is proper, without the necessity of Sears posting a bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which\nmay have resulted from a breach of this Agreement, including a forfeiture of any future payments and a return of any\npayments already received by me.\nSEVERABILITY\n8. If any provision of this Agreement is held invalid by a court, the remaining provisions will nonetheless be enforced\naccording to their terms. Further, if any provision is held to be overbroad, a court may modify that provision to the extent\nnecessary to make the provision enforceable according to applicable law and enforce the provision as modified.\nGOVERNING LAW\n9. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of\nIllinois. I agree that the state and federal courts located in the State of Illinois shall have exclusive jurisdiction in any\naction, suit or proceeding based on or arising out of this Agreement, and I submit to the personal jurisdiction of such\ncourts, consent to the service of process in connection with any action, suit or proceeding against me, and waive any\nobjections to jurisdiction, venue or service of process.\nBURDEN AND BENEFIT\n10. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale\nof assets, or otherwise. This Agreement shall be binding whether it is between Sears and me or between any successor or\nassign of Sears and me.\nNO EFFECT ON TERM OF EMPLOYMENT\n11. Nothing in this Agreement prevents or limits my right to terminate my employment at any time for any reason, and\nnothing in this Agreement prevents or limits the Company from terminating my employment at any time for any reason.\nI understand and agree that there exist no promises or guarantees of permanent employment or employment for any\nspecified term by the Company.\nENTIRE AGREEMENT\n12. I understand that this Agreement contains the entire agreement and understanding between Sears and me with respect\nto the provisions contained in this Agreement, and that no representations, promises, agreements, or understandings,\nwritten or oral, related thereto which are not contained in this Agreement will be given any force or effect. No change or\nmodification of this Agreement will be valid or binding unless it is in writing and signed by the party against whom the\nchange or modification is sought to be enforced. I further understand that even if Sears waives or fails to enforce any\nprovision of this Agreement in one instance, that will not constitute a waiver of any other provisions of this Agreement\nat this time, or a waiver of that provision at any other time.\nEXECUTIVE A SEARS, ROEBUCK AND CO.\n \n \nSignature of Executive\n \n \n \n \n \n \nBy:\nDate\nAddress - Street Title\nAddress - City, State, Zip Code Date\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of __, 2001 (the "Agreement"), Sears, Roebuck and Co., including its\nsubsidiaries (collectively referred to as "Sears"), and EXECUTIVE A ("Executive"), intending to be legally bound and for good and valuable\nconsideration, agree as follows:\n1. Severance Pay.\n(a) Should Executive be involuntarily terminated from Sears for any reason other than Cause (as defined below in Section 2(b)), death, total and\npermanent disability, or voluntary retirement, and other than a Change in Control Termination (as defined below in Section 2(b)), Sears agrees to pay\nseverance, subject to the provisions of Sections 8(e) and 12 herein, to Executive in an amount equal to: (i) an annual bonus, based on actual results\nfor the year in which active employment ends, pro rata through the date active employment ends, plus (ii) two (2) years of salary continuation,\nwhich will include annual base salary plus annual bonus at target as determined for the year in which active employment ends. Any such annual\nbonus amounts shall be paid at the same time as the annual bonus for that year is paid to Sears executives generally. The "annual bonus" consists of\npayments made under the Annual Incentive Compensation Plan or any successor annual incentive program. A lump sum payment will be made for\nany vacation benefits that accrued prior to the end of active employment. No vacation will accrue after the date active employment ends. After the\nfirst year of salary continuation, salary continuation payments and annual bonus payments will be subject to mitigation by the amount of any\ncompensation and benefits to which Executive is entitled because of any employment, including self-employment. All salary continuation payments,\nbenefits and annual bonus payments will terminate and forever lapse if Executive is employed by a "Sears Competitor" as defined in Section 8(b)\nherein.\n(b) During the salary continuation period, Executive will be placed on a leave of absence status and be entitled to all benefits (other than as specified\nabove) for which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability, Flexible\nSpending Accounts and financial planning. Executive and eligible dependents shall be entitled to continue to participate in medical and dental plans\nto the same extent and on the same cost-sharing basis as if Executive's employment with Sears had continued during such period. However, in the\nevent Executive becomes employed by another employer and is covered by such employer's health benefits plan or program, the medical and dental\nbenefits provided by Sears hereunder shall be secondary to such employer's health benefits plan or program in accordance with the terms of Sears\nhealth benefit plans.\n(c) Any stock options, stock appreciation rights, or restricted stock, except as otherwise provided for herein, granted to Executive prior to the date\nactive employment ends, will continue to vest during the salary continuation period. Executive shall have the right to exercise any outstanding and\nfully vested stock option, stock appreciation right, or other exercisable equity-based award in accordance with its respective grant letter. Any\nrestricted stock grant that has not yet vested by the end of the salary continuation period will be governed by the terms of its respective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be calculated on a pro rata basis as of the\ndate active employment ends, not inclusive of the salary continuation period. Payment will be made to Executive at the same time that other Sears\nexecutives receive any such payout under the 1999-2001 cycle of the Long Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(f) At the beginning of the salary continuation period, Executive will be immediately eligible for outplacement services at Sears expense. Sears and\nExecutive will mutually agree on which outplacement firm, among current vendors used by Sears, will provide these services. Such services will be\nprovided for up to one (1) year from the beginning of the salary continuation period or until employment is obtained, whichever occurs first.\n2. Change in Control.\n(a) Sears shall pay to Executive, and Executive shall be entitled to receive, the Change in Control Severance Pay described in Section 3, if\nExecutive's employment is terminated under the circumstances described below (a "Change in Control Termination"), provided, however, that\nnotwithstanding the foregoing, a termination by reason of death, disability or voluntary retirement, by Sears for Cause, or by the Executive without\nGood Reason, shall not be deemed to be a Change in Control Termination.\n(b) For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(i) "Change in Control Termination" means the termination of Executive's employment with Sears and all of its subsidiaries which is:\n1. on the day of, or within 24 months after, the occurrence of a Change in Control, as such term is defined in Appendix\nA;\n2. prior to a Change in Control but at the request of any third-party participating in or causing the Change in Control;\n3. by Sears without Cause during a "Potential Change in Control Period" (as defined below), provided that a Change in\nControl occurs before the Potential Change in Control Period lapses; or\n4. by Executive for Good Reason during a Potential Change in Control Period, provided that a Change in Control occurs\nbefore the Potential Change in Control Period lapses;\n(The parties agree and understand that a termination described in Section 1(a) during a Potential Change in Control Period may later\nbecome a Change in Control Termination and entitle the Executive to any additional benefits set forth in Section 2(a).)\nii. "Cause" shall mean (1) a material breach by Executive (other than a breach resulting from Executive's incapacity due to a\nmental or physical disability) of Executive's duties and responsibilities (which upon a Change in Control, shall not differ\n(except with the consent of Executive) in any material respect from Executive's duties and responsibilities during the ninety\n(90) day period immediately prior to the Change in Control or any Potential Change in Control Period during which a Change\nin Control occurs), which breach is demonstrably willful and deliberate on Executive's part, is committed in bad faith or\nwithout reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of time\nafter receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving\nmoral turpitude, or (3) dishonesty or willful misconduct in connection with Executive's employment; and\niii. "Good Reason" shall mean a significant reduction in Executive's responsibilities, title, annual base salary, annual incentive\ncompensation target or long-term incentive compensation opportunity from those in effect immediately prior to the Change in\nControl (or to the Potential Change in Control Period during which the Change in Control occurs), or Executive's mandatory\nrelocation to an office more than 50 miles from the primary location at which Executive is required to perform Executive's\nduties immediately prior to the Change in Control (or to the Potential Change in Control Period during which the Change in\nControl occurs), and which reduction or relocation is not remedied in a reasonable period of time (which shall not be greater\nthan thirty (30) days) after receipt of written notice from Executive specifying that "Good Reason" exists for purposes of this\nAgreement. "Good Reason" shall also include failure of a successor company to assume or fulfill the obligations under this\nAgreement, including the prompt payment of any amounts due to Executive hereunder.\niv. "Potential Change in Control Period" shall commence upon the occurrence of a "Potential Change in Control" (as defined\nbelow) and shall lapse immediately following the first to occur of (a) a Change in Control, or, (b) the one-year anniversary of\nthe occurrence of a Potential Change in Control.\nv. "Potential Change in Control" shall be deemed to have occurred if the event set forth in any one of the following subsections\nshall have occurred:\n1. Sears enters into an agreement the consummation of which would result in the occurrence of a Change in Control;\n2. Sears or any other party publicly announces an intention to take or consider taking actions which, if consummated, would constitute a\nChange in Control,\n3. there occurs an acquisition of 15% of Sears shares or other voting securities that meets the criteria (other than the 20% ownership threshold)\nset forth in Section (a) of the definition of "Change in Control" in Appendix A, or\n4. the Board adopts a resolution to the effect that, for purposes of this agreement, a Potential Change in Control has occurred.\n(c) Executive acknowledges that Sears shall have the right to propose modifications to the subparagraphs defining a "Change in Control" [Appendix\nA] and "Good Reason" [2(b)(iii)]. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human Resources\nDepartment as to any proposed modification to these subparagraphs. The final decision as to any modification to which Executive makes a timely\nobjection will be at the sole discretion of Sears. Modifications shall be proposed only if the conditions set forth in the then current Appendix A are\nnot present and may not be proposed during a Potential Change in Control Period. The right to make modifications under this subparagraph shall\nexpire and lapse upon the occurrence of a Change in Control event as defined in the then current Appendix A.\n(d) This Agreement will automatically terminate and its provisions and covenants will become null and void twenty-four (24) months after the\noccurrence of a Change in Control.\n3. Change in Control Severance Pay.\n(a) In the event of a Change in Control Termination, Sears agrees to pay Executive's base salary and annual bonus at target, pro rata through the date\nof the Change in Control Termination, plus severance pay equal to two (2) multiplied by the sum of (i) Executive's annual base salary in effect at the\ndate of the Change in Control Termination or, if greater, immediately prior to the Change in Control or the Potential Change in Control Period during\nwhich the Change in Control occurs, plus (ii) Executive's annual bonus at target as determined for the year in which termination occurs. Such\namounts will be paid in an undiscounted lump sum within thirty (30) days of Change in Control Termination.\n(b) During the two (2) year period following the Change in Control Termination, Executive will be placed on a leave of absence status and be\nentitled to all benefits for which Executive is eligible to participate, as provided in section 1 (b) above.\n(c) Any stock options, stock appreciation rights, or restricted stock that were outstanding immediately prior to the Change in Control Termination\nshall, to the extent not then vested, fully vest as of the date of the Change in Control Termination. Executive shall have the right to exercise any\noutstanding stock option or stock appreciation right until the expiration date of such stock option or stock appreciation right as set forth in its\nrespective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be paid at the target of the entire performance\ncycle. Payment will be made to Executive at the same time that other Sears executives receive any such payout under the 1999-2001 cycle of the\nLong Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at the time of the Change in Control Termination in accordance with the provisions of its respective program document or\ngrant letter.\n(f) Executive shall be entitled to outplacement benefits as described in Section 1(f), above.\n4. Gross-Up Payment.\na. If, for any reason, the Total Payments (as defined below) will be subject to excise taxes under Section 4999 of the Internal Revenue\nCode of 1986, as amended (the "Code") or any successor or similar provision ("Excise Tax"), Sears shall pay to Executive an\nadditional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on\nthe Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall\nbe equal to the Total Payments. The Total Payment will be subject to Excise Tax if any or all of the Total Payment is deemed to be\n"excess parachute payments" within the meaning of Section 280G(b)(1) of the Code or any successor or similar provision.\nb. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the\nhighest marginal rate in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the\nhighest marginal rate in the state and locality of Executive's residence on the date on which the Gross-Up Payment is calculated, net\nof the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.\nc. "Total Payments" is defined as any or all of the amounts payable to Executive under this Agreement, after deduction of all applicable\nfederal, state and local income and employment taxes (except for Excise Taxes, as defined above) including such amounts that are in\nthe nature of compensation paid or payable by Sears or any of its subsidiaries in connection with a Change in Control.\n5. Non-Disparagement. Executive will not take any action detrimental to the interests of Sears or its affiliates, make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or directors,\nand will not authorize others to make derogatory or disparaging statements on Executive's behalf.\n6. Intellectual Property Rights. Executive acknowledges that Executive's development, work or research on any and all inventions or expressions of\nideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such invention or\nexpression of an idea relates to the business of Sears, or relates to Sears actual or demonstrably anticipated research or development, or results from\nany work performed by Executive for or on behalf of Sears, are hereby assigned to Sears, including Executive's entire rights, title and interest.\nExecutive will promptly disclose such invention or expression of an idea to Executive's management and will, upon request, promptly execute a\nspecific written assignment of title to Sears. If Executive currently holds any inventions or expressions of an idea, regardless of whether they were\npublished or filed with the U.S. Patent and Trademark Office, or is under contract to not so assign, Executive will list them on the last page of this\nAgreement.\n7. Confidentiality. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and discussions\nwith Sears on this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner except: (a) as required by\nlaw; or (b) to Executive's spouse or financial/legal advisors, all of whom shall agree to keep such information confidential.\n8. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive's position at Sears, Executive has learned or developed,\nor will learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\n \n(i) Therefore, for one (1) year from Executive's last day of active employment, whether or not Executive receives Severance Pay,\nExecutive will not, directly or indirectly, aid, assist, participate in, consult with, render services for, accept a position with, become\nemployed by, or otherwise enter into any relationship with (other than having a passive ownership interest in) any Sears Competitor.\nii. For purposes of this Agreement, "Sears Competitor" means\n(1) Those companies listed on Appendix B, each of which Executive acknowledges is a Sears Competitor, whether or\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 8(b)(ii)(2), below, and\n(2) Any party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair, home services, and/or\nauto repair services, with combined annual gross sales in excess of $500 million, (B) engaged in any credit card or\nother consumer financial services business, with managed assets in excess of $5 billion, (C) any vendor with\ncombined annual gross sales of services or merchandise to Sears in excess of $100 million, or (D) a party engaged in\nany other line of business, in which Sears has commenced business prior to the end of Executive's active employment,\nwith Sears having annual gross sales in that line of business in excess of $50 million.\n(iii) Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to\ninclude (1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are\nnew for Sears. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human\nResources Department to any proposed modifications to Appendix B. The final decision as to any modification to\nwhich Executive makes a timely objection will be at the sole discretion of Sears.\n(iv) Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada\nand that this non-compete provision applies in any state of the United States, Puerto Rico or province of Canada in\nwhich Sears does business.\n(c) Executive will provide Sears with such information as Sears may from time to time request to determine Executive's compliance with this\nAgreement. Executive authorizes Sears to contact Executive's future employers and other entities with which Executive has any business relationship\nto determine Executive's compliance with this Agreement or to communicate the contents of this Agreement to such employers and entities.\nExecutive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or communications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information and to\notherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this Agreement are\nreasonable.\n(e) Upon the termination of Executive's employment by either party, Executive will execute a binding General Release and Waiver of claims in a\nform to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in a form similar to the attached\nsample. If the General Release and Waiver is not signed or is signed but subsequently revoked, Executive will not receive Severance Pay (if any) or\nany other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches this Agreement,\ninjunctive relief in favor of Sears is proper without the necessity of Sears posting bond. Moreover, any award of injunctive relief shall not preclude\nSears from seeking or recovering any lawful compensatory damages which may have resulted from a breach of this Agreement, including a\nforfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears in any\ninstance shall not be deemed a waiver of such provision in the future.\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 8(b), above,\ncommence during Executive's continued employment with Sears, by written request to the Chief Executive Officer of Sears or the equivalent. Such a\nrequest will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears' absolute discretion.\n9. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of any compensation or benefits\npayable to Executive hereunder; and except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 8(e) and 12, such\ncompensation and benefits shall not be reduced whether or not Executive obtains other employment.\n10. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period of\nactive employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved. Sears will reimburse\nExecutive for reasonable travel and out-of-pocket expenses.\n11. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n12. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement provision\n(Section 5 herein), and the non-competition provisions (Section 8 herein) of this Agreement, Sears obligation to make salary continuation or any\nother payments under this Agreement will immediately cease.\n13. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be deemed\nto be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised\nfrom this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if\nsuch provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not been originally incorporated\nherein, as the case may be.\n14. This Agreement will be governed under the internal laws of the state of Illinois. Executive agrees that the state and federal courts located in the\nstate of Illinois shall have exclusive jurisdiction in any action, suit or proceeding based on or arising out of this Agreement, and Executive hereby:\n(a) submits to the personal jurisdiction of such courts; (b) consents to the service of process in connection with any action, suit, or proceeding against\nExecutive; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction, venue\nor service of process.\n15. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is illegal or\nunenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory jury.\nFurther, should any claim arising out of Executive's employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury or\nadvisory jury.\n16. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive's employment with Sears is\nterminable "at-will" by either party with or without cause and with or without notice.\n17. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions of this\nAgreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance plan or\nprogram. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained herein (with\nthe exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated , 200__) and may be\namended only by a writing signed by an authorized officer of Sears.\n18. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n19. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or otherwise. This\nAgreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears and Executive.\n20. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date set forth\nbelow.\nSEARS, ROEBUCK AND CO.\nBY:\n \n \nEXECUTIVE A\n \n \nDate Date\nA "change in control" or "Change in Control" shall mean:\n(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as\namended (the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of\n20% or more of either (i) the then outstanding common shares of the Company (the "Outstanding Company Common Shares") or (ii) the combined\nvoting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding\nCompany Voting Securities"); provided, however, that the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly\nfrom the Company (excluding an acquisition by virtue of the exercise of a conversion privilege); (ii) any acquisition by the Company or any of its\nsubsidiaries; (iii) any acquisition by any employee benefit plan (or any related trust) sponsored or maintained by the Company of any of its\nsubsidiaries; or (iv) any acquisition by any corporation pursuant to a reorganization, merger or consolidation, if, following such reorganization,\nmerger or consolidation, the conditions described in clauses (i), (ii) and (iii) of (c) below are satisfied; or\n(b) Individuals who, as of the date hereof, constitute the Board of Directors of the Company (the "Board") (as of the date hereof, the "Incumbent\nBoard") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to\nthe date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the\ndirectors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding,\nfor this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such\nterms are used under Section 14 of the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person\nother than the Board; or\n(c) Consummation of a reorganization, merger or consolidation unless, following such reorganization, merger or consolidation, (i) more than 60% of,\nrespectively, the then outstanding common shares of the corporation resulting from such reorganization, merger or consolidation and the combined\nvoting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially\nowned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such reorganization, merger or\nconsolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company,\nany of its subsidiaries, any employee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such\ncorporation resulting from such reorganization, merger or consolidation and any Person beneficially owning, immediately prior to such\nreorganization, merger or consolidation, directly or indirectly, 20% or more of the Outstanding Company Common Shares or Outstanding Company\nVoting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding common shares of\nthe corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities\nof such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the\ncorporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the\ninitial agreement providing for such reorganization, merger or consolidation; or\n(d) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company; or\n(e) Consummation of the sale or other disposition of all or substantially all of the assets of the Company, other than to a corporation, with respect to\nwhich following such sale or other disposition, (i) more then 60% of, respectively, the then outstanding common shares of such corporation and the\ncombined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then\nbeneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of\nthe Outstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such sale or other disposition in\nsubstantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the Outstanding Company Common\nShares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company, any of its subsidiaries, and any\nemployee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such corporation and any Person\nbeneficially owning, immediately prior to such sale or other disposition, directly or indirectly, 20% or more of the Outstanding Company Common\nShares or Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the\nthen outstanding common shares of such corporation and the combined voting power of the then outstanding voting securities of such corporation\nentitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of such corporation were\nmembers of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other\ndisposition of assets of the Company.\nFor purposes of the foregoing definition of "Change in Control", a "subsidiary" of the Company shall mean any corporation in which the Company,\ndirectly or indirectly, holds a majority of the voting power of such corporation's outstanding shares of capital stock.\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER SIGNING.\nANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL COUNSEL,\nSEARS, ROEBUCK AND CO,, 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO CONSULT WITH AN\nATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting by,\nthrough, or under me hereby release, waive, and forever discharge Sears, Roebuck and Co., its current and former agents, subsidiaries, affiliates,\nemployees, officers, shareholders, successors, and assigns ("Sears") from any and all liability, actions, charges, causes of action, demands, damages,\nor claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or connected with, my\nemployment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in contract (oral or written,\nexpress or implied), or in tort, or pursuant to statute, including any claim for age or other types of discrimination under the Age Discrimination in\nEmployment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state, or local law or ordinance, to\nthe fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General Release and Waiver does not apply\nto any claims or rights that may arise after the date that I signed this General Release and Waiver. I understand that Sears is not admitting to any\nviolation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file a\ncharge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under benefit\nplans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family and Medical\nLeave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent and warrant that\nI have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim under\nthe ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under ADEA, I shall\nbe liable to Sears for its reasonable attorney's fees and other litigation costs and expenses incurred in defending against such a suit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General Release\nand Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by notifying the\nGeneral Counsel of Sears in writing. I understand that this General Release and Waiver will not be effective until after this seven (7) day revocation\nperiod has expired.\nDate: SAMPLE ONLY - DO NOT SIGN Signed by: SAMPLE ONLY - DO NOT SIGN\nWitness by:\n	EX-10 6 ex10ii26.htm EXHIBIT 10.(II)(26)\nExhibit 10.(ii)(26)\nExecutive Non-Disclosure and\nNon-Solicitation of Employees Agreement\nEXECUTIVE A\nIn order for Sears, Roebuck and Co., including its subsidiaries (collectively referred to as "Sears" or the "Company"),\nto\nmaintain a competitive edge, Sears must protect its Confidential Information and the stability of its workforce.\nTherefore, as a condition of employment with Sears, I agree as follows:\nDEFINITIONS\n1. "Sears Confidential Information" means trade secrets and non-public information which Sears designates as being\nconfidential or which, under the circumstances surrounding disclosure, should be treated as confidential, including,\nwithout limitation, any information received in confidence or developed by Sears, its long and short term goals, vendor\nand supply agreements, databases, methods, programs, techniques, business information, financial information,\nmarketing and business plans, proprietary software, personnel information and files, client information, pricing, and\nother information relating to the business of Sears that is not known generally to the public or in the industry and is of\nvalue to Sears.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION\n2. I will not, during the term of my employment with Sears or thereafter, except as Sears may otherwise consent or direct\nin writing, reveal or disclose, sell, use, lecture upon or publish any Sears Confidential Information until\nsuch\ntime\nas\nthe\ninformation becomes publicly known through a source other than me.\n3. I understand that if I possess any proprietary information of another person or company as a result of prior\nemployment or otherwise, Sears expects and requires that I will honor any and all legal obligations that I have to that\nperson or company with respect to proprietary information, and I will refrain from any unauthorized use or disclosure of\nsuch information.\nRETURN OF SEARS PROPERTY\n4. All documents and other tangible property which relate to the business of Sears are the exclusive property of Sears,\neven if I authored or created them. I agree to return all such documents and tangible property to Sears upon termination\nof employment or at such earlier time as Sears may request me to do so.\nCONFLICT OF INTEREST\n5. During my employment, neither I nor members of my immediate family will have financial investments or other\ninterests or relationships with the Company's customers, suppliers or competitors which might impair my independence\nof judgment on behalf of the Company. I also agree not to engage in any competitive activity against the Company and\nwill avoid any outside activity that could adversely affect the independence and objectivity of my judgment, interfere\nwith the timely and effective performance of my duties and responsibilities to the Company, discredit the Company or\notherwise conflict with the Company's best interests.\nNON-SOLICITATION OF EMPLOYEES\n6. During my employment with Sears and for one (1) year thereafter, I shall not, directly or indirectly, solicit or\nencourage any person to leave her/his employment with Sears or assist in any way with the hiring of any Sears employee\nby any other business.\nIRREPARABLE HARM\n7. Irreparable harm would result from any breach by me of the provisions of this Agreement, and monetary damages\nalone would not provide adequate relief for any such breach. Accordingly, if I breach or threaten\nto\nbreach\nthis\nAgreement, injunctive relief in favor of Sears is proper, without the necessity of Sears posting a bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which\nmay have resulted from a breach of this Agreement, including a forfeiture of any future payments and a return of any\npayments already received by me.\nSEVERABILITY\n8. If any provision of this Agreement is held invalid by a court, the remaining provisions will nonetheless be enforced\naccording to their terms. Further, if any provision is held to be overbroad, a court may modify that provision to the extent\nnecessary to make the provision enforceable according to applicable law and enforce the provision as modified.\nGOVERNING LAW\n9. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of\nIllinois. I agree that the state and federal courts located in the State of Illinois shall have exclusive jurisdiction in any\naction, suit or proceeding based on or arising out of this Agreement, and I submit to the personal jurisdiction of such\ncourts, consent to the service of process in connection with any action, suit or proceeding against me, and waive any\nobjections to jurisdiction, venue or service of process.\nBURDEN AND BENEFIT\n10. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale\nof assets, or otherwise. This Agreement shall be binding whether it is between Sears and me or between any successor or\nassign of Sears and me.\nNO EFFECT ON TERM OF EMPLOYMENT\n11. Nothing in this Agreement prevents or limits my right to terminate my employment at any time for any reason, and\nnothing in this Agreement prevents or limits the Company from terminating my employment at any time for any reason.\nI understand and agree that there exist no promises or guarantees of permanent employment or employment for any\nspecified term by the Company.\nENTIRE AGREEMENT\n12. I understand that this Agreement contains the entire agreement and understanding between Sears and me with respect\nto the provisions contained in this Agreement, and that no representations, promises, agreements, or understandings,\nwritten or oral, related thereto which are not contained in this Agreement will be given any force or effect. No change or\nmodification of this Agreement will be valid or binding unless it is in writing and signed by the party against whom the\nchange or modification is sought to be enforced. I further understand that even if Sears waives or fails to enforce any\nprovision of this Agreement in one instance, that will not constitute a waiver of any other provisions of this Agreement\nat this time, or a waiver of that provision at any other time.\nEXECUTIVE A\nSEARS, ROEBUCK AND CO.\nSignature of Executive\nBy:\nDate\nAddress Street\nTitle\nAddress City, State, Zip Code\nDate\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of 2001 (the "Agreement"), Sears, Roebuck and Co., including\nits\nsubsidiaries (collectively referred to as "Sears"), and EXECUTIVE A ("Executive"), intending to be legally bound and for good and valuable\nconsideration, agree as follows:\n1. Severance Pay..\n(a) Should Executive be involuntarily terminated from Sears for any reason other than Cause (as defined below in Section 2(b)), death, total and\npermanent disability, or voluntary retirement, and other than a Change in Control Termination (as defined below in Section 2(b)), Sears agrees to pay\nseverance, subject to the provisions of Sections 8(e) and 12 herein, to Executive in an amount equal to: (i) an annual bonus, based on actual results\nfor the year in which active employment ends, pro rata through the date active employment ends, plus (ii) two (2) years of salary continuation,\nwhich will include annual base salary plus annual bonus at target as determined for the year in which active employment ends. Any such annual\nbonus amounts shall be paid at the same time as the annual bonus for that year is paid to Sears executives generally. The "annual bonus" consists of\npayments made under the Annual Incentive Compensation Plan or any successor annual incentive program. A lump sum payment will be made for\nany vacation benefits that accrued prior to the end of active employment. No vacation will accrue after the date active employment ends. After\nthe\nfirst\nyear\nof\nsalary\ncontinuation,\nsalary\ncontinuation\npayments\nand\nannual\nbonus\npayments\nwill\nbe\nsubject\nto\nmitigation\nby\nthe\namount\nof\nany\ncompensation and benefits to which Executive is entitled because of any employment, including self-employment. All salary continuation payments,\nbenefits and annual bonus payments will terminate and forever lapse if Executive is employed by a "Sears Competitor" as defined in Section 8(b)\nherein.\n(b) During the salary continuation period, Executive will be placed on a leave of absence status and be entitled to all benefits (other than as specified\nabove)\nfor\nwhich\nExecutive\nwas\neligible\nto\nparticipate\nprior\nto\nthe\nend\nof\nactive\nemployment,\nwith\nthe\nexception\nof\nLong-Term\nDisability,\nFlexible\nSpending Accounts and financial planning. Executive and eligible dependents shall be entitled to continue to participate in medical and dental plans\nto the same extent and on the same cost-sharing basis as if Executive's employment with Sears had continued during such period. However, in the\nevent\nExecutive becomes employed by another employer and is covered by such employer's health benefits plan or program, the medical and dental\nbenefits provided by Sears hereunder shall be secondary to such employer's health benefits plan or program in accordance with the terms of Sears\nhealth benefit plans.\n(c) Any stock options, stock appreciation rights, or restricted stock, except as otherwise provided for herein, granted to Executive prior to the date\nactive employment ends, will continue to vest during the salary continuation period. Executive shall have the right to exercise any outstanding and\nfully vested stock option, stock appreciation right, or other exercisable equity-based award in accordance with its respective grant letter. Any\nrestricted stock grant that has not yet vested by the end of the salary continuation period will be governed by the terms of its respective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be calculated on a pro rata basis as of the\ndate active employment ends, not inclusive of the salary continuation period. Payment will be made to Executive at the same time that other Sears\nexecutives receive any such payout under the 1999-2001 cycle of the Long Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(f) At the beginning of the salary continuation period, Executive will be immediately eligible for outplacement services at Sears expense. Sears and\nExecutive will mutually agree on which outplacement firm, among current vendors used by Sears, will provide these services. Such services will be\nprovided for up to one (1) year from the beginning of the salary continuation period or until employment is obtained, whichever occurs first.\n2. Change in Control.\n(a) Sears shall pay to Executive, and Executive shall be entitled to receive, the Change in Control Severance Pay described in Section 3, if\nExecutive's employment is terminated under the circumstances described below (a "Change in Control Termination"), provided, however, that\nnotwithstanding the foregoing, a termination by reason of death, disability or voluntary retirement, by Sears for Cause, or by the Executive without\nGood Reason, shall not be deemed to be a Change in Control Termination.\n(b) For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(i) "Change in Control Termination" means the termination of Executive's employment with Sears and all of its subsidiaries which is:\n1. on the day of, or within 24 months after, the occurrence of a Change in Control, as such term is defined in Appendix\nA;\n2. prior to a Change in Control but at the request of any third-party participating in or causing the Change in Control;\n3. by Sears without Cause during a "Potential Change in Control Period" (as defined below), provided that a Change\nin\nControl occurs before the Potential Change in Control Period lapses; or\n4. by Executive for Good Reason during a Potential Change in Control Period, provided that a Change in Control occurs\nbefore the Potential Change in Control Period lapses;\n(The parties agree and understand that a termination described in Section 1(a) during a Potential Change in Control Period may later\nbecome a Change in Control Termination and entitle the Executive to any additional benefits set forth in Section 2(a).)\nii. "Cause" shall mean (1) a material breach by Executive (other than a breach resulting from Executive's incapacity due to\na\nmental or physical disability) of Executive's duties and responsibilities (which upon a Change in Control, shall not differ\n(except with the consent of Executive) in any material respect from Executive's duties and responsibilities during the ninety\n(90) day period immediately prior to the Change in Control or any Potential Change in Control Period during which a Change\nin Control occurs), which breach is demonstrably willful and deliberate on Executive's part, is committed in bad faith or\nwithout reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of time\nafter receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving\nmoral turpitude, or (3) dishonesty or willful misconduct in connection with Executive's employment; and\niii. "Good Reason" shall mean a significant reduction in Executive's responsibilities, title, annual base salary, annual incentive\ncompensation target or long-term incentive compensation opportunity from those in effect immediately prior to the Change\nin\nControl (or to the Potential Change in Control Period during which the Change in Control occurs), or Executive's mandatory\nrelocation to an office more than 50 miles from the primary location at which Executive is required to perform Executive's\nduties immediately prior to the Change in Control (or to the Potential Change in Control Period during which the Change in\nControl occurs), and which reduction or relocation is not remedied in a reasonable period of time (which shall not be greater\nthan thirty (30) days) after receipt of written notice from Executive specifying that "Good Reason" exists for purposes of this\nAgreement. "Good Reason" shall also include failure of a successor company to assume or fulfill the obligations under this\nAgreement, including the prompt payment of any amounts due to Executive hereunder.\niv. "Potential Change in Control Period" shall commence upon the occurrence of a "Potential Change in Control" (as defined\nbelow) and shall lapse immediately following the first to occur of (a) a Change in Control, or, (b) the one-year anniversary of\nthe occurrence of a Potential Change in Control.\nV. "Potential Change in Control" shall be deemed to have occurred if the event set forth in any one of the following subsections\nshall have occurred:\n1. Sears enters into an agreement the consummation of which would result in the occurrence of a Change in Control;\n2. Sears or any other party publicly announces an intention to take or consider taking actions which, if consummated, would constitute a\nChange in Control,\n3. there occurs an acquisition of 15% of Sears shares or other voting securities that meets the criteria (other than the 20% ownership threshold)\nset forth in Section (a) of the definition of "Change in Control" in Appendix A, or\n4. the Board adopts a resolution to the effect that, for purposes of this agreement, a Potential Change in Control has occurred.\n(c) Executive acknowledges that Sears shall have the right to propose modifications to the subparagraphs defining a "Change in Control" [Appendix\nA] and "Good Reason" [2(b)(iii)]. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human Resources\nDepartment as to any proposed modification to these subparagraphs. The final decision as to any modification to which Executive makes a timely\nobjection will be at the sole discretion of Sears. Modifications shall be proposed only if the conditions set forth in the then current Appendix A are\nnot present and may not be proposed during a Potential Change in Control Period. The right to make modifications under this subparagraph shall\nexpire and lapse upon the occurrence of a Change in Control event as defined in the then current Appendix A.\n(d) This Agreement will automatically terminate and its provisions and covenants will become null and void twenty-four (24) months after the\noccurrence of a Change in Control.\n3. Change in Control Severance Pay.\n(a) In the event of a Change in Control Termination, Sears agrees to pay Executive's base salary and annual bonus at target, pro rata through the date\nof the Change in Control Termination, plus severance pay equal to two (2) multiplied by the sum of (i) Executive's annual base salary in effect at the\ndate of the Change in Control Termination or, if greater, immediately prior to the Change in Control or the Potential Change in Control Period during\nwhich the Change in Control occurs, plus (ii) Executive's annual bonus at target as determined for the year in which termination occurs. Such\namounts will be paid in an undiscounted lump sum within thirty (30) days of Change in Control Termination.\n(b) During the two (2) year period following the Change in Control Termination, Executive will be placed on a leave of absence status and be\nentitled to all benefits for which Executive is eligible to participate, as provided in section 1 (b) above.\n(c) Any stock options, stock appreciation rights, or restricted stock that were outstanding immediately prior to the Change in Control Termination\nshall, to the extent not then vested, fully vest as of the date of the Change in Control Termination. Executive shall have the right to exercise any\noutstanding stock option or stock appreciation right until the expiration date of such stock option or stock appreciation right as set forth in its\nrespective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan wil be paid at the target of the entire performance\ncycle. Payment will be made to Executive at the same time that other Sears executives receive any such payout under the 1999-2001 cycle of the\nLong Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based\ngrant\nor\naward, will be treated at the time of the Change in Control Termination in accordance with the provisions of its respective program document or\ngrant letter.\n(f) Executive shall be entitled to outplacement benefits as described in Section 1(f), above.\n4. Gross-Up Payment.\na. If, for any reason, the Total Payments (as defined below) will be subject to excise taxes under Section 4999 of the Internal Revenue\nCode of 1986, as amended (the "Code") or any successor or similar provision ("Excise Tax"), Sears shall pay to Executive an\nadditional\namount\n(the\n"Gross-Up\nPayment")\nsuch\nthat\nthe\nnet\namount\nretained\nby\nExecutive,\nafter\ndeduction\nof\nany\nExcise\nTax\non\nthe Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall\nbe equal to the Total Payments. The Total Payment will be subject to Excise Tax if any or all of the Total Payment is deemed to be\n"excess parachute payments" within the meaning of Section 280G(b)(1) of the Code or any successor or similar provision.\nb.\nFor purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the\nhighest marginal rate in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the\nhighest marginal rate in the state and locality of Executive's residence on the date on which the Gross-Up Payment is calculated, net\nof the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.\nC. "Total Payments" is defined as any or all of the amounts payable to Executive under this Agreement, after deduction of all applicable\nfederal, state and local income and employment taxes (except for Excise Taxes, as defined above) including such amounts that\nare\nin\nthe nature of compensation paid or payable by Sears or any of its subsidiaries in connection with a Change in Control.\n5. Non-Disparagement. Executive will not take any action detrimental to the interests of Sears or its affiliates, make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or directors,\nand will not authorize others to make derogatory or disparaging statements on Executive's behalf.\n6. Intellectual Property. Rights. Executive acknowledges that Executive's development, work or research on any and all inventions or expressions of\nideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such invention or\nexpression of an idea relates to the business of Sears, or relates to Sears actual or demonstrably anticipated research or development, or results from\nany work performed by Executive for or on behalf of Sears, are hereby assigned to Sears, including Executive's entire rights, title and interest.\nExecutive will promptly disclose such invention or expression of an idea to Executive's management and will, upon request, promptly execute a\nspecific written assignment of title to Sears. If Executive currently holds any inventions or expressions of an idea, regardless of whether they were\npublished or filed with the U.S. Patent and Trademark Office, or is under contract to not so assign, Executive will list them on the last page of this\nAgreement.\n7. Confidentiality.. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and discussions\nwith Sears on this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner except: (a) as required by\nlaw; or (b) to Executive's spouse or financial/legal advisors, all of whom shall agree to keep such information confidential.\n8. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive's position at Sears, Executive has learned or developed,\nor will learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\n(i) Therefore, for one (1) year from Executive's last day of active employment, whether or not Executive receives Severance Pay,\nExecutive will not, directly or indirectly, aid, assist, participate in, consult with, render services for, accept a position with, become\nemployed by, or otherwise enter into any relationship with (other than having a passive ownership interest in) any Sears Competitor.\nii. For purposes of this Agreement, "Sears Competitor" means\n(1) Those companies listed on Appendix B, each of which Executive acknowledges is a Sears Competitor, whether or\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 8(b)(ii)(2), below, and\n(2)\nAny\nparty\n(A)\nengaged\nin\nany\nretail\nbusiness\n(whether\nin\na\ndepartment\nstore,\nspecialty\nstore,\ndiscount\nstore,\ndirect\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair, home services, and/or\nauto repair services, with combined annual gross sales in excess of $500 million, (B) engaged in any credit card or\nother consumer financial services business, with managed assets in excess of $5 billion, (C) any vendor with\ncombined annual gross sales of services or merchandise to Sears in excess of $100 million, or (D) a party engaged in\nany other line of business, in which Sears has commenced business prior to the end of Executive's active employment,\nwith Sears having annual gross sales in that line of business in excess of $50 million.\n(iii) Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to\ninclude (1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are\nnew for Sears. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human\nResources Department to any proposed modifications to Appendix B. The final decision as to any modification\nto\nwhich Executive makes a timely objection will be at the sole discretion of Sears.\n(iv) Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada\nand that this non-compete provision applies in any state of the United States, Puerto Rico or province of Canada in\nwhich Sears does business.\n(c) Executive will provide Sears with such information as Sears may from time to time request to determine Executive's compliance with this\nAgreement. Executive authorizes Sears to contact Executive's future employers and other entities with which Executive has any business relationship\nto determine Executive's compliance with this Agreement or to communicate the contents of this Agreement to such employers and entities.\nExecutive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or communications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information\nand\nto\notherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this Agreement are\nreasonable.\n(e) Upon the termination of Executive's employment by either party, Executive will execute a binding General Release and Waiver of claims\nin\na\nform\nto be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in a form similar to the attached\nsample. If the General Release and Waiver is not signed or is signed but subsequently revoked, Executive will not receive Severance Pay (if any) or\nany other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches this Agreement,\ninjunctive relief in favor of Sears is proper without the necessity of Sears posting bond. Moreover, any award of injunctive relief shall not preclude\nSears from seeking or recovering any lawful compensatory damages which may have resulted from a breach of this Agreement, including a\nforfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears in any\ninstance shall not be deemed a waiver of such provision in the future.\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 8(b), above,\ncommence during Executive's continued employment with Sears, by written request to the Chief Executive Officer of Sears or the equivalent. Such\na\nrequest will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears' absolute discretion.\n9. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of any compensation or benefits\npayable to Executive hereunder; and except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 8(e) and 12, such\ncompensation and benefits shall not be reduced whether or not Executive obtains other employment.\n10. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period\nof\nactive employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved. Sears will reimburse\nExecutive for reasonable travel and out-of-pocket expenses.\n11. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n12. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement provision\n(Section 5 herein), and the non-competition provisions (Section 8 herein) of this Agreement, Sears obligation to make salary continuation or\nany\nother payments under this Agreement will immediately cease.\n13. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be deemed\nto be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised\nfrom this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if\nsuch provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not been originally incorporated\nherein, as the case may be.\n14. This Agreement will be governed under the internal laws of the state of Illinois. Executive agrees that the state and federal courts located in the\nstate of Illinois shall have exclusive jurisdiction in any action, suit or proceeding based on or arising out of this Agreement, and Executive hereby:\n(a) submits to the personal jurisdiction of such courts; (b) consents to the service of process in connection with any action, suit, or proceeding against\nExecutive; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction, venue\nor service of process.\n15. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is illegal or\nunenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory jury.\nFurther, should any claim arising out of Executive's employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury or\nadvisory jury.\n16. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive's employment with Sears is\nterminable "at-will" by either party with or without cause and with or without notice.\n17. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions of this\nAgreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance plan or\nprogram. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained herein (with\nthe exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated\n200_) and may be\namended only by a writing signed by an authorized officer of Sears.\n18. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n19. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or otherwise. This\nAgreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears and Executive.\n20. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date set forth\nbelow.\nSEARS, ROEBUCK AND CO.\nEXECUTIVE A\nDate\nDate\nA "change in control" or "Change in Control" shall mean:\n(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as\namended (the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of\n20% or more of either (i) the then outstanding common shares of the Company (the "Outstanding Company Common Shares") or (ii) the combined\nvoting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding\nCompany Voting Securities"); provided, however, that the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly\nfrom the Company (excluding an acquisition by virtue of the exercise of a conversion privilege); (ii) any acquisition by the Company\nor\nany\nof\nits\nsubsidiaries; (iii) any acquisition by any employee benefit plan (or any related trust) sponsored or maintained by the Company of any of its\nsubsidiaries; or (iv) any acquisition by any corporation pursuant to a reorganization, merger or consolidation, if, following such reorganization,\nmerger or consolidation, the conditions described in clauses (i), (ii) and (iii) of (c) below are satisfied; or\n(b) Individuals who, as of the date hereof, constitute the Board of Directors of the Company (the "Board") (as of the date hereof, the "Incumbent\nBoard")\ncease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent\nto\nthe date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the\ndirectors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding,\nfor this purpose, any such individua whose initial assumption of office occurs as a result of either an actual or threatened election contest (as\nsuch\nterms are used under Section 14 of the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person\nother than the Board; or\n(c) Consummation of a reorganization, merger or consolidation unless, following such reorganization, merger or consolidation, (i) more than 60% of,\nrespectively, the then outstanding common shares of the corporation resulting from such reorganization, merger or consolidation and the combined\nvoting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially\nowned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such reorganization, merger or\nconsolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company,\nany of its subsidiaries, any employee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such\ncorporation resulting from such reorganization, merger or consolidation and any Person beneficially owning, immediately prior to such\nreorganization, merger or consolidation, directly or indirectly, 20% or more of the Outstanding Company Common Shares or Outstanding Company\nVoting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding common shares of\nthe corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities\nof such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the\ncorporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the\ninitial agreement providing for such reorganization, merger or consolidation; or\n(d) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company; or\n(e) Consummation of the sale or other disposition of all or substantially all of the assets of the Company, other than to a corporation, with respec to\nwhich following such sale or other disposition, (i) more then 60% of, respectively, the then outstanding common shares of such corporation and the\ncombined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then\nbeneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of\nthe Outstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such sale or other disposition in\nsubstantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the Outstanding Company Common\nShares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company, any of its subsidiaries, and any\nemployee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such corporation and any Person\nbeneficially owning, immediately prior to such sale or other disposition, directly or indirectly, 20% or more of the Outstanding Company Common\nShares or Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the\nthen outstanding common shares of such corporation and the combined voting power of the then outstanding voting securities of such corporation\nentitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of such corporation were\nmembers of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other\ndisposition of assets of the Company.\nFor purposes of the foregoing definition of "Change in Control", a "subsidiary" of the Company shall mean any corporation in which the Company,\ndirectly or indirectly, holds a majority of the voting power of such corporation's outstanding shares of capital stock.\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER SIGNING.\nANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL COUNSEL,\nSEARS, ROEBUCK AND CO., 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO CONSULT\nWITH\nAN\nATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting by,\nthrough,\nor\nunder\nme\nhereby\nrelease,\nwaive,\nand\nforever\ndischarge\nSears,\nRoebuck\nand\nCo.,\nits\ncurrent\nand\nformer\nagents,\nsubsidiaries,\naffiliates,\nemployees, officers, shareholders, successors, and assigns ("Sears") from any and all liability, actions, charges, causes of action, demands, damages,\nor\nclaims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or connected with, my\nemployment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in contract (oral or written\nexpress or implied), or in tort, or pursuant to statute, including any claim for age or other types of discrimination under the Age Discrimination in\nEmployment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state, or local law or ordinance, to\nthe fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General Release and Waiver does not apply\nto any claims or rights that may arise after the date that I signed this General Release and Waiver. I understand that Sears is not admitting to\nany\nviolation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file a\ncharge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under benefit\nplans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family and Medical\nLeave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent and warrant that\nI have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn\naddition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim under\nthe ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under ADEA, I shall\nbe liable to Sears for its reasonable attorney's fees and other litigation costs and expenses incurred in defending against such a suit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free\nwill\nin\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General Release\nand Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by notifying the\nGeneral Counsel of Sears in writing. I understand that this General Release and Waiver will not be effective until after this seven (7) day revocation\nperiod has expired.\nDate: SAMPLE ONLY DO NOT SIGN\nSigned by: SAMPLE ONLY DO NOT SIGN\nWitness	EX-10 6 ex10ii26.htm EXHIBIT 10.(II)(26)\nExhibit 10.(ii)(26)\nExecutive Non-Disclosure and\nNon-Solicitation of Employees Agreement\nEXECUTIVE A\n______________________________________________________________________________\nIn order for Sears, Roebuck and Co., including its subsidiaries (collectively referred to as "Sears'' or the "Company"), to\nmaintain a competitive edge, Sears must protect its Confidential Information and the stability of its workforce.\nTherefore, as a condition of employment with Sears, I agree as follows:\nDEFINITIONS\n1. "Sears Confidential Information" means trade secrets and non-public information which Sears designates as being\nconfidential or which, under the circumstances surrounding disclosure, should be treated as confidential, including,\nwithout limitation, any information received in confidence or developed by Sears, its long and short term goals, vendor\nand supply agreements, databases, methods, programs, techniques, business information, financial information,\nmarketing and business plans, proprietary software, personnel information and files, client information, pricing, and\nother information relating to the business of Sears that is not known generally to the public or in the industry and is of\nvalue to Sears.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION\n2. I will not, during the term of my employment with Sears or thereafter, except as Sears may otherwise consent or direct\nin writing, reveal or disclose, sell, use, lecture upon or publish any Sears Confidential Information until such time as the\ninformation becomes publicly known through a source other than me.\n3. I understand that if I possess any proprietary information of another person or company as a result of prior\nemployment or otherwise, Sears expects and requires that I will honor any and all legal obligations that I have to that\nperson or company with respect to proprietary information, and I will refrain from any unauthorized use or disclosure of\nsuch information.\nRETURN OF SEARS PROPERTY\n4. All documents and other tangible property which relate to the business of Sears are the exclusive property of Sears,\neven if I authored or created them. I agree to return all such documents and tangible property to Sears upon termination\nof employment or at such earlier time as Sears may request me to do so.\nCONFLICT OF INTEREST\n5. During my employment, neither I nor members of my immediate family will have financial investments or other\ninterests or relationships with the Company's customers, suppliers or competitors which might impair my independence\nof judgment on behalf of the Company. I also agree not to engage in any competitive activity against the Company and\nwill avoid any outside activity that could adversely affect the independence and objectivity of my judgment, interfere\nwith the timely and effective performance of my duties and responsibilities to the Company, discredit the Company or\notherwise conflict with the Company's best interests.\nNON-SOLICITATION OF EMPLOYEES\n6. During my employment with Sears and for one (1) year thereafter, I shall not, directly or indirectly, solicit or\nencourage any person to leave her/his employment with Sears or assist in any way with the hiring of any Sears employee\nby any other business.\nIRREPARABLE HARM\n7. Irreparable harm would result from any breach by me of the provisions of this Agreement, and monetary damages\nalone would not provide adequate relief for any such breach. Accordingly, if I breach or threaten to breach this\nAgreement, injunctive relief in favor of Sears is proper, without the necessity of Sears posting a bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which\nmay have resulted from a breach of this Agreement, including a forfeiture of any future payments and a return of any\npayments already received by me.\nSEVERABILITY\n8. If any provision of this Agreement is held invalid by a court, the remaining provisions will nonetheless be enforced\naccording to their terms. Further, if any provision is held to be overbroad, a court may modify that provision to the extent\nnecessary to make the provision enforceable according to applicable law and enforce the provision as modified.\nGOVERNING LAW\n9. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of\nIllinois. I agree that the state and federal courts located in the State of Illinois shall have exclusive jurisdiction in any\naction, suit or proceeding based on or arising out of this Agreement, and I submit to the personal jurisdiction of such\ncourts, consent to the service of process in connection with any action, suit or proceeding against me, and waive any\nobjections to jurisdiction, venue or service of process.\nBURDEN AND BENEFIT\n10. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale\nof assets, or otherwise. This Agreement shall be binding whether it is between Sears and me or between any successor or\nassign of Sears and me.\nNO EFFECT ON TERM OF EMPLOYMENT\n11. Nothing in this Agreement prevents or limits my right to terminate my employment at any time for any reason, and\nnothing in this Agreement prevents or limits the Company from terminating my employment at any time for any reason.\nI understand and agree that there exist no promises or guarantees of permanent employment or employment for any\nspecified term by the Company.\nENTIRE AGREEMENT\n12. I understand that this Agreement contains the entire agreement and understanding between Sears and me with respect\nto the provisions contained in this Agreement, and that no representations, promises, agreements, or understandings,\nwritten or oral, related thereto which are not contained in this Agreement will be given any force or effect. No change or\nmodification of this Agreement will be valid or binding unless it is in writing and signed by the party against whom the\nchange or modification is sought to be enforced. I further understand that even if Sears waives or fails to enforce any\nprovision of this Agreement in one instance, that will not constitute a waiver of any other provisions of this Agreement\nat this time, or a waiver of that provision at any other time.\nEXECUTIVE A\nSEARS, ROEBUCK AND CO.\n___________ ______________________\nSignature of Executive\n_________________________________\n___________ ______________________\nDate\nBy:______________________________\n___________ _____________________\nAddress - Street\n_____________ ____________________\nTitle\n___________ ______________________\nAddress - City, State, Zip Code\n_____________ ____________________\nDate\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of ________ __, 2001 (the "Agreement"), Sears, Roebuck and Co., including its\nsubsidiaries (collectively referred to as "Sears"), and EXECUTIVE A ("Executive"), intending to be legally bound and for good and valuable\nconsideration, agree as follows:\n1. Severance Pay.\n(a) Should Executive be involuntarily terminated from Sears for any reason other than Cause (as defined below in Section 2(b)), death, total and\npermanent disability, or voluntary retirement, and other than a Change in Control Termination (as defined below in Section 2(b)), Sears agrees to pay\nseverance, subject to the provisions of Sections 8(e) and 12 herein, to Executive in an amount equal to: (i) an annual bonus, based on actual results\nfor the year in which active employment ends, pro rata through the date active employment ends, plus (ii) two (2) years of salary continuation,\nwhich will include annual base salary plus annual bonus at target as determined for the year in which active employment ends. Any such annual\nbonus amounts shall be paid at the same time as the annual bonus for that year is paid to Sears executives generally. The "annual bonus" consists of\npayments made under the Annual Incentive Compensation Plan or any successor annual incentive program. A lump sum payment will be made for\nany vacation benefits that accrued prior to the end of active employment. No vacation will accrue after the date active employment ends. After the\nfirst year of salary continuation, salary continuation payments and annual bonus payments will be subject to mitigation by the amount of any\ncompensation and benefits to which Executive is entitled because of any employment, including self-employment. All salary continuation payments,\nbenefits and annual bonus payments will terminate and forever lapse if Executive is employed by a "Sears Competitor" as defined in Section 8(b)\nherein.\n(b) During the salary continuation period, Executive will be placed on a leave of absence status and be entitled to all benefits (other than as specified\nabove) for which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability, Flexible\nSpending Accounts and financial planning. Executive and eligible dependents shall be entitled to continue to participate in medical and dental plans\nto the same extent and on the same cost-sharing basis as if Executive's employment with Sears had continued during such period. However, in the\nevent Executive becomes employed by another employer and is covered by such employer's health benefits plan or program, the medical and dental\nbenefits provided by Sears hereunder shall be secondary to such employer's health benefits plan or program in accordance with the terms of Sears\nhealth benefit plans.\n(c) Any stock options, stock appreciation rights, or restricted stock, except as otherwise provided for herein, granted to Executive prior to the date\nactive employment ends, will continue to vest during the salary continuation period. Executive shall have the right to exercise any outstanding and\nfully vested stock option, stock appreciation right, or other exercisable equity-based award in accordance with its respective grant letter. Any\nrestricted stock grant that has not yet vested by the end of the salary continuation period will be governed by the terms of its respective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be calculated on a pro rata basis as of the\ndate active employment ends, not inclusive of the salary continuation period. Payment will be made to Executive at the same time that other Sears\nexecutives receive any such payout under the 1999-2001 cycle of the Long Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(f) At the beginning of the salary continuation period, Executive will be immediately eligible for outplacement services at Sears expense. Sears and\nExecutive will mutually agree on which outplacement firm, among current vendors used by Sears, will provide these services. Such services will be\nprovided for up to one (1) year from the beginning of the salary continuation period or until employment is obtained, whichever occurs first.\n2. Change in Control.\n(a) Sears shall pay to Executive, and Executive shall be entitled to receive, the Change in Control Severance Pay described in Section 3, if\nExecutive's employment is terminated under the circumstances described below (a "Change in Control Termination"), provided, however, that\nnotwithstanding the foregoing, a termination by reason of death, disability or voluntary retirement, by Sears for Cause, or by the Executive without\nGood Reason, shall not be deemed to be a Change in Control Termination.\n(b) For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(i) "Change in Control Termination" means the termination of Executive's employment with Sears and all of its subsidiaries which is:\n1. on the day of, or within 24 months after, the occurrence of a Change in Control, as such term is defined in Appendix\nA;\n2. prior to a Change in Control but at the request of any third-party participating in or causing the Change in Control;\n3. by Sears without Cause during a "Potential Change in Control Period" (as defined below), provided that a Change in\nControl occurs before the Potential Change in Control Period lapses; or\n4. by Executive for Good Reason during a Potential Change in Control Period, provided that a Change in Control occurs\nbefore the Potential Change in Control Period lapses;\n(The parties agree and understand that a termination described in Section 1(a) during a Potential Change in Control Period may later\nbecome a Change in Control Termination and entitle the Executive to any additional benefits set forth in Section 2(a).)\nii. "Cause" shall mean (1) a material breach by Executive (other than a breach resulting from Executive's incapacity due to a\nmental or physical disability) of Executive's duties and responsibilities (which upon a Change in Control, shall not differ\n(except with the consent of Executive) in any material respect from Executive's duties and responsibilities during the ninety\n(90) day period immediately prior to the Change in Control or any Potential Change in Control Period during which a Change\nin Control occurs), which breach is demonstrably willful and deliberate on Executive's part, is committed in bad faith or\nwithout reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of time\nafter receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving\nmoral turpitude, or (3) dishonesty or willful misconduct in connection with Executive's employment; and\niii. "Good Reason" shall mean a significant reduction in Executive's responsibilities, title, annual base salary, annual incentive\ncompensation target or long-term incentive compensation opportunity from those in effect immediately prior to the Change in\nControl (or to the Potential Change in Control Period during which the Change in Control occurs), or Executive's mandatory\nrelocation to an office more than 50 miles from the primary location at which Executive is required to perform Executive's\nduties immediately prior to the Change in Control (or to the Potential Change in Control Period during which the Change in\nControl occurs), and which reduction or relocation is not remedied in a reasonable period of time (which shall not be greater\nthan thirty (30) days) after receipt of written notice from Executive specifying that "Good Reason" exists for purposes of this\nAgreement. "Good Reason" shall also include failure of a successor company to assume or fulfill the obligations under this\nAgreement, including the prompt payment of any amounts due to Executive hereunder.\niv. "Potential Change in Control Period" shall commence upon the occurrence of a "Potential Change in Control" (as defined\nbelow) and shall lapse immediately following the first to occur of (a) a Change in Control, or, (b) the one-year anniversary of\nthe occurrence of a Potential Change in Control.\nv. "Potential Change in Control" shall be deemed to have occurred if the event set forth in any one of the following subsections\nshall have occurred:\n1. Sears enters into an agreement the consummation of which would result in the occurrence of a Change in Control;\n2. Sears or any other party publicly announces an intention to take or consider taking actions which, if consummated, would constitute a\nChange in Control,\n3. there occurs an acquisition of 15% of Sears shares or other voting securities that meets the criteria (other than the 20% ownership threshold)\nset forth in Section (a) of the definition of "Change in Control" in Appendix A, or\n4. the Board adopts a resolution to the effect that, for purposes of this agreement, a Potential Change in Control has occurred.\n(c) Executive acknowledges that Sears shall have the right to propose modifications to the subparagraphs defining a "Change in Control" [Appendix\nA] and "Good Reason" [2(b)(iii)]. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human Resources\nDepartment as to any proposed modification to these subparagraphs. The final decision as to any modification to which Executive makes a timely\nobjection will be at the sole discretion of Sears. Modifications shall be proposed only if the conditions set forth in the then current Appendix A are\nnot present and may not be proposed during a Potential Change in Control Period. The right to make modifications under this subparagraph shall\nexpire and lapse upon the occurrence of a Change in Control event as defined in the then current Appendix A.\n(d) This Agreement will automatically terminate and its provisions and covenants will become null and void twenty-four (24) months after the\noccurrence of a Change in Control.\n3. Change in Control Severance Pay.\n(a) In the event of a Change in Control Termination, Sears agrees to pay Executive's base salary and annual bonus at target, pro rata through the date\nof the Change in Control Termination, plus severance pay equal to two (2) multiplied by the sum of (i) Executive's annual base salary in effect at the\ndate of the Change in Control Termination or, if greater, immediately prior to the Change in Control or the Potential Change in Control Period during\nwhich the Change in Control occurs, plus (ii) Executive's annual bonus at target as determined for the year in which termination occurs. Such\namounts will be paid in an undiscounted lump sum within thirty (30) days of Change in Control Termination.\n(b) During the two (2) year period following the Change in Control Termination, Executive will be placed on a leave of absence status and be\nentitled to all benefits for which Executive is eligible to participate, as provided in section 1 (b) above.\n(c) Any stock options, stock appreciation rights, or restricted stock that were outstanding immediately prior to the Change in Control Termination\nshall, to the extent not then vested, fully vest as of the date of the Change in Control Termination. Executive shall have the right to exercise any\noutstanding stock option or stock appreciation right until the expiration date of such stock option or stock appreciation right as set forth in its\nrespective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be paid at the target of the entire performance\ncycle. Payment will be made to Executive at the same time that other Sears executives receive any such payout under the 1999-2001 cycle of the\nLong Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at the time of the Change in Control Termination in accordance with the provisions of its respective program document or\ngrant letter.\n(f) Executive shall be entitled to outplacement benefits as described in Section 1(f), above.\n4. Gross-Up Payment.\na. If, for any reason, the Total Payments (as defined below) will be subject to excise taxes under Section 4999 of the Internal Revenue\nCode of 1986, as amended (the "Code") or any successor or similar provision ("Excise Tax"), Sears shall pay to Executive an\nadditional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on\nthe Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall\nbe equal to the Total Payments. The Total Payment will be subject to Excise Tax if any or all of the Total Payment is deemed to be\n"excess parachute payments" within the meaning of Section 280G(b)(1) of the Code or any successor or similar provision.\nb. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the\nhighest marginal rate in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the\nhighest marginal rate in the state and locality of Executive's residence on the date on which the Gross-Up Payment is calculated, net\nof the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.\nc. "Total Payments" is defined as any or all of the amounts payable to Executive under this Agreement, after deduction of all applicable\nfederal, state and local income and employment taxes (except for Excise Taxes, as defined above) including such amounts that are in\nthe nature of compensation paid or payable by Sears or any of its subsidiaries in connection with a Change in Control.\n5. Non-Disparagement. Executive will not take any action detrimental to the interests of Sears or its affiliates, make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or directors,\nand will not authorize others to make derogatory or disparaging statements on Executive's behalf.\n6. Intellectual Property Rights. Executive acknowledges that Executive's development, work or research on any and all inventions or expressions of\nideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such invention or\nexpression of an idea relates to the business of Sears, or relates to Sears actual or demonstrably anticipated research or development, or results from\nany work performed by Executive for or on behalf of Sears, are hereby assigned to Sears, including Executive's entire rights, title and interest.\nExecutive will promptly disclose such invention or expression of an idea to Executive's management and will, upon request, promptly execute a\nspecific written assignment of title to Sears. If Executive currently holds any inventions or expressions of an idea, regardless of whether they were\npublished or filed with the U.S . Patent and Trademark Office, or is under contract to not so assign, Executive will list them on the last page of this\nAgreement.\n7. Confidentiality. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and discussions\nwith Sears on this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner except: (a) as required by\nlaw; or (b) to Executive's spouse or financial/legal advisors, all of whom shall agree to keep such information confidential.\n8. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive's position at Sears, Executive has learned or developed,\nor will learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\n(i) Therefore, for one (1) year from Executive's last day of active employment, whether or not Executive receives Severance Pay,\nExecutive will not, directly or indirectly, aid, assist, participate in, consult with, render services for, accept a position with, become\nemployed by, or otherwise enter into any relationship with (other than having a passive ownership interest in) any Sears Competitor.\nii. For purposes of this Agreement, "Sears Competitor" means\n(1) Those companies listed on Appendix B, each of which Executive acknowledges is a Sears Competitor, whether or\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 8(b)(ii)(2), below, and\n(2) Any party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair, home services, and/or\nauto repair services, with combined annual gross sales in excess of $500 million, (B) engaged in any credit card or\nother consumer financial services business, with managed assets in excess of $5 billion, (C) any vendor with\ncombined annual gross sales of services or merchandise to Sears in excess of $100 million, or (D) a party engaged in\nany other line of business, in which Sears has commenced business prior to the end of Executive's active employment,\nwith Sears having annual gross sales in that line of business in excess of $50 million.\n(iii) Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to\ninclude (1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are\nnew for Sears. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human\nResources Department to any proposed modifications to Appendix B. The final decision as to any modification to\nwhich Executive makes a timely objection will be at the sole discretion of Sears.\n(iv) Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada\nand that this non-compete provision applies in any state of the United States, Puerto Rico or province of Canada in\nwhich Sears does business.\n(c) Executive will provide Sears with such information as Sears may from time to time request to determine Executive's compliance with this\nAgreement. Executive authorizes Sears to contact Executive's future employers and other entities with which Executive has any business relationship\nto determine Executive's compliance with this Agreement or to communicate the contents of this Agreement to such employers and entities.\nExecutive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or communications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information and to\notherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this Agreement are\nreasonable.\n(e) Upon the termination of Executive's employment by either party, Executive will execute a binding General Release and Waiver of claims in a\nform to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in a form similar to the attached\nsample. If the General Release and Waiver is not signed or is signed but subsequently revoked, Executive will not receive Severance Pay (if any) or\nany other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches this Agreement,\ninjunctive relief in favor of Sears is proper without the necessity of Sears posting bond. Moreover, any award of injunctive relief shall not preclude\nSears from seeking or recovering any lawful compensatory damages which may have resulted from a breach of this Agreement, including a\nforfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears in any\ninstance shall not be deemed a waiver of such provision in the future.\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 8(b), above,\ncommence during Executive's continued employment with Sears, by written request to the Chief Executive Officer of Sears or the equivalent. Such a\nrequest will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears' absolute discretion.\n9. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of any compensation or benefits\npayable to Executive hereunder; and except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 8(e) and 12, such\ncompensation and benefits shall not be reduced whether or not Executive obtains other employment.\n10. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period of\nactive employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved. Sears will reimburse\nExecutive for reasonable travel and out-of-pocket expenses.\n11. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n12. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement provision\n(Section 5 herein), and the non-competition provisions (Section 8 herein) of this Agreement, Sears obligation to make salary continuation or any\nother payments under this Agreement will immediately cease.\n13. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be deemed\nto be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised\nfrom this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if\nsuch provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not been originally incorporated\nherein, as the case may be.\n14. This Agreement will be governed under the internal laws of the state of Illinois. Executive agrees that the state and federal courts located in the\nstate of Illinois shall have exclusive jurisdiction in any action, suit or proceeding based on or arising out of this Agreement, and Executive hereby:\n(a) submits to the personal jurisdiction of such courts; (b) consents to the service of process in connection with any action, suit, or proceeding against\nExecutive; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction, venue\nor service of process.\n15. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is illegal or\nunenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory jury.\nFurther, should any claim arising out of Executive's employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury or\nadvisory jury.\n16. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive's employment with Sears is\nterminable "at-will" by either party with or without cause and with or without notice.\n17. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions of this\nAgreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance plan or\nprogram. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained herein (with\nthe exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated _______________, 200__) and may be\namended only by a writing signed by an authorized officer of Sears.\n18. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n19. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or otherwise. This\nAgreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears and Executive.\n20. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date set forth\nbelow.\nSEARS, ROEBUCK AND CO.\n_ ___ ___ ___ ___ ___ ____ ___ ___ __\nEXECUTIVE A\nBY:____________________________\n_ ___ ___ ___ ___ ___ ____ ___ ___ __\nDate\n___ ___ ___ ___ ____ ___ ___ ___ ___\nDate\nA "change in control" or "Change in Control" shall mean:\n(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as\namended (the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of\n20% or more of either (i) the then outstanding common shares of the Company (the "Outstanding Company Common Shares") or (ii) the combined\nvoting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding\nCompany Voting Securities"); provided, however, that the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly\nfrom the Company (excluding an acquisition by virtue of the exercise of a conversion privilege); (ii) any acquisition by the Company or any of its\nsubsidiaries; (iii) any acquisition by any employee benefit plan (or any related trust) sponsored or maintained by the Company of any of its\nsubsidiaries; or (iv) any acquisition by any corporation pursuant to a reorganization, merger or consolidation, if, following such reorganization,\nmerger or consolidation, the conditions described in clauses (i), (ii) and (iii) of (c) below are satisfied; or\n(b) Individuals who, as of the date hereof, constitute the Board of Directors of the Company (the "Board") (as of the date hereof, the "Incumbent\nBoard") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to\nthe date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the\ndirectors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding,\nfor this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such\nterms are used under Section 14 of the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person\nother than the Board; or\n(c) Consummation of a reorganization, merger or consolidation unless, following such reorganization, merger or consolidation, (i) more than 60% of,\nrespectively, the then outstanding common shares of the corporation resulting from such reorganization, merger or consolidation and the combined\nvoting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially\nowned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such reorganization, merger or\nconsolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company,\nany of its subsidiaries, any employee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such\ncorporation resulting from such reorganization, merger or consolidation and any Person beneficially owning, immediately prior to such\nreorganization, merger or consolidation, directly or indirectly, 20% or more of the Outstanding Company Common Shares or Outstanding Company\nVoting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding common shares of\nthe corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities\nof such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the\ncorporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the\ninitial agreement providing for such reorganization, merger or consolidation; or\n(d) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company; or\n(e) Consummation of the sale or other disposition of all or substantially all of the assets of the Company, other than to a corporation, with respect to\nwhich following such sale or other disposition, (i) more then 60% of, respectively, the then outstanding common shares of such corporation and the\ncombined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then\nbeneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of\nthe Outstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such sale or other disposition in\nsubstantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the Outstanding Company Common\nShares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company, any of its subsidiaries, and any\nemployee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such corporation and any Person\nbeneficially owning, immediately prior to such sale or other disposition, directly or indirectly, 20% or more of the Outstanding Company Common\nShares or Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the\nthen outstanding common shares of such corporation and the combined voting power of the then outstanding voting securities of such corporation\nentitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of such corporation were\nmembers of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other\ndisposition of assets of the Company.\nFor purposes of the foregoing definition of "Change in Control", a "subsidiary" of the Company shall mean any corporation in which the Company,\ndirectly or indirectly, holds a majority of the voting power of such corporation's outstanding shares of capital stock.\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER SIGNING.\nANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL COUNSEL,\nSEARS, ROEBUCK AND CO., 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO CONSULT WITH AN\nATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting by,\nthrough, or under me hereby release, waive, and forever discharge Sears, Roebuck and Co., its current and former agents, subsidiaries, affiliates,\nemployees, officers, shareholders, successors, and assigns ("Sears") from any and all liability, actions, charges, causes of action, demands, damages,\nor claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or connected with, my\nemployment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in contract (oral or written,\nexpress or implied), or in tort, or pursuant to statute, including any claim for age or other types of discrimination under the Age Discrimination in\nEmployment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state, or local law or ordinance, to\nthe fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General Release and Waiver does not apply\nto any claims or rights that may arise after the date that I signed this General Release and Waiver. I understand that Sears is not admitting to any\nviolation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file a\ncharge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under benefit\nplans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family and Medical\nLeave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent and warrant that\nI have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim under\nthe ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under ADEA, I shall\nbe liable to Sears for its reasonable attorney's fees and other litigation costs and expenses incurred in defending against such a suit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General Release\nand Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by notifying the\nGeneral Counsel of Sears in writing. I understand that this General Release and Waiver will not be effective until after this seven (7) day revocation\nperiod has expired.\nDate: SAMPLE ONLY - DO NOT SIGN\nSigned by: SAMPLE ONLY - DO NOT SIGN\nWitness by:____________________________
05947711a24a5b7ce401911d31e19c91.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nPRIVILEGED AND CONFIDENTIAL\nDecember 28, 2006\nPotomac Key Group, LLC\nAttn: Stuart Mackiernan\nRe: Confidentiality Agreement\nDear Sir:\nPotomac Key Group, LLC (the “Undersigned”) has requested information concerning CompuDyne Corporation and its subsidiaries (together,\nthe “Company”) in connection with its consideration of a potential acquisition of, or other transaction with, such Company (the “Potential\nTransaction”). As a condition to the furnishing to the Undersigned and its Representatives (as defined below) of certain information about the\nCompany, the Undersigned agrees to be bound by the terms and conditions of this agreement, and the Undersigned further agrees to inform any\nRepresentative to whom Proprietary Information (as defined below) is disclosed pursuant to the terms of this agreement of the contents of this\nagreement and the confidential nature of the Proprietary Information (as defined below).\nAll information furnished by or on behalf of the Company or its Representatives, or learned by the Undersigned during any visits to the\nCompany’s facilities in connection with its consideration of a Potential Transaction, whether furnished or learned before or after the date hereof,\nwhether oral, written or electronic, and regardless of the manner or form in which it is furnished or learned, including, without limitation, all data,\nreports, interpretations, forecasts and records containing or otherwise reflecting information concerning the Company or its affiliates or the Potential\nTransaction, whether prepared by the Company or others, and any summaries, analyses or other documents created by the Undersigned, the\nCompany or others which refer to, relate to, discuss, constitute, or embody all or any portion of the Proprietary Information provided by the\nCompany or its Representatives, is referred to in this agreement as “Proprietary Information.” The term Proprietary Information shall not include,\nhowever, information which (a) is or becomes generally available to the public other than as a result of a disclosure by the Undersigned or its\nRepresentatives, (b) was in the Undersigned’s possession and obtained on a non-confidential basis prior to its disclosure by the Company or its\nRepresentatives, (c) becomes available to the Undersigned on a non-confidential basis from a person other than the Company or its Representatives\nwho, to the knowledge after due inquiry of the Undersigned or its Representatives, as the case may be, is not otherwise bound by a confidentiality\nagreement with the Company or any of its Representatives, or is otherwise not under an obligation to the Company or any of its Representatives not\nto transmit the information to the Undersigned or (d) is developed by the Undersigned or its Representative without reference to the Proprietary\nInformation. As used in this agreement, the term “Representatives” means, as to any person, such person’s affiliates and its and their directors,\nofficers, employees, agents, advisors (including, without limitation, financial advisors, counsel and accountants) and\ncontrolling persons. As used in this agreement, the term “person” shall be broadly interpreted to include, without limitation, the media, any\ncorporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Company or CompuDyne Corporation\n(“Parent”), the Undersigned agrees that for a period of two years (a) except as required by law, rule, regulation, stock exchange rule or disclosure\nrequirement of the Securities and Exchange Commission (collectively, “Law”), or with the prior written consent of the Company, to keep all\nProprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than its Representatives who are\nactively and directly participating in the evaluation of a Potential Transaction, (b) not to use Proprietary Information for any purpose other than in\nconnection with its evaluation or negotiation of a Potential Transaction or the consummation of a Potential Transaction and (c) except as required by\nLaw, not to disclose to any person (other than those of its Representatives who are participating in the evaluation of a Potential Transaction) any\ninformation about a Potential Transaction, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof, or the fact that Proprietary Information has been made available to the\nUndersigned or its Representatives. At a minimum, the Undersigned shall treat any Proprietary Information according to the same internal security\nprocedures and with the same degree of care regarding its secrecy and confidentiality as similar information belonging to it is treated within its\norganization. The Undersigned shall be responsible for any breach of the terms of this agreement by the Undersigned or any of its Representatives\nand agrees to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary\nInformation.\nIn the event that the Undersigned or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative demand,\nregulatory demand or similar process or pursuant to applicable Law to disclose any Proprietary Information or any other information concerning the\nCompany or a Potential Transaction, the Undersigned shall seek a written opinion from reputable and experienced outside counsel that a specific\ndisclosure is necessary in order for the Undersigned not to be in violation of or default under an applicable Law or order. The Undersigned agrees\nthat, to the extent permitted by Law, it shall provide the Company with prompt notice of such request or requirement as well as a copy of such\nopinion together with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult\nwith and consider the suggestions of the Company concerning the nature and scope of the information the Undersigned proposes to disclose. The\nCompany may seek, at the Company’s sole expense, an appropriate protective order or other remedy, may consult with the Undersigned with respect\nto the Company’s taking steps to resist or narrow the scope of such request or legal process, or may waive compliance, in whole or in part, with the\nterms of this agreement. The Undersigned agrees to cooperate fully, at the Company’s sole expense, with and not to oppose any action by the\nCompany to obtain a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or that the\nCompany waives compliance with the terms of this agreement, the Undersigned may disclose only that part of the Proprietary Information .as it is\nadvised by counsel in writing is legally required. In any such event, the Undersigned shall use its best efforts to ensure that all Proprietary\nInformation and other information that is so disclosed will be accorded confidential treatment.\nThe Undersigned agrees that, without the Company’s consent, it will not for a period of one year from the date hereof directly or indirectly\nsolicit for employment or employ any person who is now an officer of the Company or its subsidiaries; provided, however, that the Undersigned\nshall not be prohibited from (a) employing any such person who contacts the Undersigned on his or her own initiative and without any direct or\nindirect solicitation by the Undersigned, (b) employing any such person in response to generalized solicitations for employees (which solicitations\nare not specifically targeted at the Company’s or its subsidiaries’ employees) through the use of media advertisements, professional search firms or\notherwise, (c) employing any such person who has not been employed by the Company for a period of six months prior\n2\nto employment with the Undersigned, or (d) if the Undersigned enters into a Potential Transaction and a definitive agreement regarding the\nCompany, employing such persons connected with the Company in accordance with such definitive agreement and in accordance with all applicable\nlaws.\nThe Undersigned acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the Company,\nand the Company has the exclusive right, title, and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of any disclosure of Proprietary Information under this agreement.\nThe Undersigned acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Proprietary Information, and the Undersigned agrees that neither the Company nor any of its\nRepresentatives shall have any liability to the Undersigned or any of its Representatives relating to or arising from the use of any Proprietary\nInformation by the Undersigned or its Representatives or for any errors therein or omissions therefrom. The Undersigned also agrees that it is not\nentitled to rely on the accuracy or completeness of any Proprietary Information and that it shall be entitled to rely solely on such representations and\nwarranties regarding Proprietary Information as may be made to it in any final agreement relating to a Potential Transaction, subject to the terms and\nconditions of such agreement.\nThe Undersigned acknowledges that the Company may establish procedures and guidelines (the “Procedures”) for the submission of proposals\nwith respect to a Potential Transaction. The Undersigned acknowledges and agrees that (a) the Company and its Representatives are free to conduct\nthe process leading up to a Potential Transaction as the Company and its Representatives, in their sole discretion, determine (including, without\nlimitation, by negotiating with any third party and entering into a preliminary or definitive agreement without prior notice to the Undersigned or any\nother person); (b) the Company reserves the right, in its sole discretion, to change the Procedures relating to the consideration of a Potential\nTransaction at any time without prior notice to the Undersigned or any other person, to reject any and all proposals made by the Undersigned or any\nof its Representatives regarding a Potential Transaction, and to terminate discussions and negotiations with the Undersigned at any time and for any\nreason; and (c) neither the Company nor any of its Representatives nor any third party with whom the Company may enter into any agreement for or\ncomplete any transaction, shall have any liability to the Undersigned or its Representatives arising out of or relating to such transaction.\nExcept as permitted herein, the Undersigned agrees not to initiate or maintain contact (except for contacts made in connection with existing\ncommercial relationships and/or in the ordinary .course of business) with any officer, director, employee or agent of the Company with respect to the\nPotential Transaction except with the express prior permission of the Company. It is understood that, if appropriate, the Company will arrange for\ncontacts for due diligence purposes. It is further understood that all (a) communications regarding a Potential Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings and (d) discussions or questions regarding the Procedures will be submitted only\nto designated employees of Parent or the Company.\nThis agreement binds the parties only with respect to the matters expressly set forth herein, and neither party is bound or committed to\nnegotiate or consummate a Potential Transaction unless and until a definitive agreement on such matters has been executed and delivered on behalf\nof both parties by their duly authorized officers.\nIf the Undersigned determines that it does not wish to proceed with a Potential Transaction, it will promptly advise the Company of that\ndecision in writing. In such case, or if the Company so requests or a Potential Transaction is not consummated with the Undersigned, the\nUndersigned will promptly destroy all copies of Proprietary Information (and all summaries and notes of the contents or\n3\nparts thereof) in its possession or in the possession of any of its Representatives; provided, however, that the Undersigned shall return all copies of\nProprietary Information in its possession or in the possession of any of its Representatives to the Company, if the Company so requests in writing,\nwithin five (5) business days after receiving such a request from the Company. The Undersigned shall not retain any copies or other reproductions in\nwhole or in part of such material. An officer of the Undersigned shall certify the Undersigned’s compliance with this paragraph. Notwithstanding the\nforegoing, if and to the extent the Undersigned or its Representatives is required by applicable Law or its record keeping policies to retain copies of\nany Proprietary Information, the Undersigned or its Representatives, as applicable, will be permitted to keep and maintain such copies of Proprietary\nInformation subject to the terms of this agreement. Notwithstanding the return or destruction of the Proprietary Information, the Undersigned and its\nRepresentatives shall continue to be bound by their obligations hereunder.\nThe Undersigned is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information. The Undersigned hereby confirms that it, and its\nRepresentatives, shall take any action necessary to prevent the use of any information about the Company in a way which might violate any antitrust\nor other applicable Law.\nUnless specifically permitted in writing in advance by the Company, the Undersigned agrees that it will not, and it shall cause its\nRepresentatives not to, for a period of 12 months from the date of this agreement (and will not at any time during such period assist or encourage\nothers to): (a) acquire or agree, offer, seek or propose to acquire (or directly or indirectly request permission to do so), directly or indirectly, alone or\nin concert with any other person, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership as defined in Rule 13d\n3 under the Securities Exchange Act of 1934, as amended (the “Act”), of any of the assets, businesses or common stock of the company or any\nsecurities convertible into or exchangeable for or exercisable (whether currently or upon the occurrence of any contingency) for the purchase of\ncommon stock (collectively, “Stock”) or any other rights or options to acquire such ownership (including from any third party); (b) solicit proxies (as\nsuch terms are defined in Rule 14a 1 under the Act), whether or not such solicitation is exempt under Rule 14a 2 under the Act, with respect to any\nmatter from holders of any shares of Stock, or make any communication exempted from the definition of solicitation by Rule 14a l(l)(2)(iv) under\nthe Act; (c) offer to enter into or may any public announcement or proposal with respect to any merger, business combination, recapitalization,\nrestructuring or other extraordinary transaction involving the Company or initiate, or induce or attempt to induce or participate with any other\nperson, entity or group (as defined in Section 13(d)(3) of the Act) to initiate, any stockholder proposal or tender offer for any Stock, any change of\ncontrol of the Company, or the convening of the stockholders’ meeting of the Company; (d) request the Company (or its directors, officers,\nemployees or agents), directly or indirectly, to amend or waive any provision of this paragraph; (e) take any action inconsistent with any of the\nforegoing subparagraphs (a) through (d); or (f) take any action with respect to any of the matters described in this paragraph that requires public\ndisclosure or disclose any intention inconsistent with the foregoing.\nIt is understood that the covenants of this agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. The Company may be irreparably harmed by a breach of this agreement, and the use of the Proprietary Information for the business\npurposes of any person other than the parties to this agreement may enable such person to compete unfairly with the Company. In the event that the\nUndersigned or its Representatives shall have knowledge of any breach of this agreement, it shall promptly give notice thereof to the Company.\nWithout prejudice to the rights and remedies otherwise available to the Company, the Undersigned agrees that the Company shall be\n4\nentitled to seek equitable relief by way of injunction, specific performance, or otherwise if the Undersigned or any of its Representatives breach or\nthreaten to breach any of the provisions of this agreement. Additionally, the Company shall not be required to post bond, any requirement of bond\nbeing specifically waived by you.\nIt is further understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power\nor privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of New York applicable to contracts executed in and to be\nperformed in that State. The parties hereto agree that the venue in any and all actions and proceedings related to this agreement shall be the state and\nfederal courts in and for New York, New York, which courts shall have exclusive personal and subject matter jurisdiction for such purpose, and the\nparties hereto irrevocably submit to the exclusive jurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the\nmaintenance of any such action or proceeding.\nThe Undersigned agrees that the rights and remedies of the Company under this agreement shall inure to the benefit of the Company, its\naffiliates, successors and assigns. The Undersigned may not assign this agreement without the prior written consent of the Company which may be\nwithheld at the Company’s sole discretion. This agreement shall be binding upon the Undersigned’s successors and permitted assigns. Unless\notherwise extended in writing by all of the parties or otherwise terminated pursuant to its terms, this agreement shall automatically terminate on the\nearlier of (i) the second anniversary of the date hereof and (ii) the execution of a definitive agreement for a Potential Transaction.\n5\nThis agreement contains the entire agreement between the Company and the Undersigned concerning the subject matter hereof, and no\nmodification of this agreement or waiver of the terms and conditions hereof shall be binding upon the Company or the Undersigned, unless approved\nin writing by both of the parties hereto. If any provision of this agreement shall, for any reason, be adjudged by any court of competent jurisdiction\nto be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this agreement but shall be confined in its\noperation to the provision of this agreement directly involved in the controversy in which such judgment shall have been rendered. This agreement\nmay be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.\nCOMPUDYNE CORPORATION\nBy: /s/ Geoffrey Feidelberg\nName: Geoffrey Feidelberg\nTitle: CFO\nAccepted and Agreed\nas of the date set forth above:\nPOTOMAC KEY GROUP, LLC:\nBy: /s/ Stuart Mackiernan\nName: Stuart Mackiernan\nTitle: President\nJanuary 3, 2007\nDate\n6	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nPRIVILEGED AND CONFIDENTIAL\nDecember 28, 2006\nPotomac Key Group, LLC\nAttn: Stuart Mackiernan\nRe: Confidentiality Agreement\nDear Sir:\nPotomac Key Group, LLC (the “Undersigned”) has requested information concerning CompuDyne Corporation and its subsidiaries (together,\nthe “Company”) in connection with its consideration of a potential acquisition of, or other transaction with, such Company (the “Potential\nTransaction”). As a condition to the furnishing to the Undersigned and its Representatives (as defined below) of certain information about the\nCompany, the Undersigned agrees to be bound by the terms and conditions of this agreement, and the Undersigned further agrees to inform any\nRepresentative to whom Proprietary Information (as defined below) is disclosed pursuant to the terms of this agreement of the contents of this\nagreement and the confidential nature of the Proprietary Information (as defined below).\nAll information furnished by or on behalf of the Company or its Representatives, or learned by the Undersigned during any visits to the\nCompany’s facilities in connection with its consideration of a Potential Transaction, whether furnished or learned before or after the date hereof,\nwhether oral, written or electronic, and regardless of the manner or form in which it is furnished or learned, including, without limitation, all data,\nreports, interpretations, forecasts and records containing or otherwise reflecting information concerning the Company or its affiliates or the Potential\nTransaction, whether prepared by the Company or others, and any summaries, analyses or other documents created by the Undersigned, the\nCompany or others which refer to, relate to, discuss, constitute, or embody all or any portion of the Proprietary Information provided by the\nCompany or its Representatives, is referred to in this agreement as “Proprietary Information.” The term Proprietary Information shall not include,\nhowever, information which (a) is or becomes generally available to the public other than as a result of a disclosure by the Undersigned or its\nRepresentatives, (b) was in the Undersigned’s possession and obtained on a non-confidential basis prior to its disclosure by the Company or its\nRepresentatives, (c) becomes available to the Undersigned on a non-confidential basis from a person other than the Company or its Representatives\nwho, to the knowledge after due inquiry of the Undersigned or its Representatives, as the case may be, is not otherwise bound by a confidentiality\nagreement with the Company or any of its Representatives, or is otherwise not under an obligation to the Company or any of its Representatives not\nto transmit the information to the Undersigned or (d) is developed by the Undersigned or its Representative without reference to the Proprietary\nInformation. As used in this agreement, the term “Representatives” means, as to any person, such person’s affiliates and its and their directors,\nofficers, employees, agents, advisors (including, without limitation, financial advisors, counsel and accountants) and\ncontrolling persons. As used in this agreement, the term “person” shall be broadly interpreted to include, without limitation, the media, any\ncorporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Company or CompuDyne Corporation\n(“Parent”), the Undersigned agrees that for a period of two years (a) except as required by law, rule, regulation, stock exchange rule or disclosure\nrequirement of the Securities and Exchange Commission (collectively, “Law”), or with the prior written consent of the Company, to keep all\nProprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than its Representatives who are\nactively and directly participating in the evaluation of a Potential Transaction, (b) not to use Proprietary Information for any purpose other than in\nconnection with its evaluation or negotiation of a Potential Transaction or the consummation of a Potential Transaction and (c) except as required by\nLaw, not to disclose to any person (other than those of its Representatives who are participating in the evaluation of a Potential Transaction) any\ninformation about a Potential Transaction, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof, or the fact that Proprietary Information has been made available to the\nUndersigned or its Representatives. At a minimum, the Undersigned shall treat any Proprietary Information according to the same internal security\nprocedures and with the same degree of care regarding its secrecy and confidentiality as similar information belonging to it is treated within its\norganization. The Undersigned shall be responsible for any breach of the terms of this agreement by the Undersigned or any of its Representatives\nand agrees to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary\nInformation.\n \nIn the event that the Undersigned or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative demand,\nregulatory demand or similar process or pursuant to applicable Law to disclose any Proprietary Information or any other information concerning the\nCompany or a Potential Transaction, the Undersigned shall seek a written opinion from reputable and experienced outside counsel that a specific\ndisclosure is necessary in order for the Undersigned not to be in violation of or default under an applicable Law or order. The Undersigned agrees\nthat, to the extent permitted by Law, it shall provide the Company with prompt notice of such request or requirement as well as a copy of such\nopinion together with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult\nwith and consider the suggestions of the Company concerning the nature and scope of the information the Undersigned proposes to disclose. The\nCompany may seek, at the Company’s sole expense, an appropriate protective order or other remedy, may consult with the Undersigned with respect\nto the Company’s taking steps to resist or narrow the scope of such request or legal process, or may waive compliance, in whole or in part, with the\nterms of this agreement. The Undersigned agrees to cooperate fully, at the Company’s sole expense, with and not to oppose any action by the\nCompany to obtain a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or that the\nCompany waives compliance with the terms of this agreement, the Undersigned may disclose only that part of the Proprietary Information .as it is\nadvised by counsel in writing is legally required. In any such event, the Undersigned shall use its best efforts to ensure that all Proprietary\nInformation and other information that is so disclosed will be accorded confidential treatment.\nThe Undersigned agrees that, without the Company’s consent, it will not for a period of one year from the date hereof directly or indirectly\nsolicit for employment or employ any person who is now an officer of the Company or its subsidiaries; provided, however, that the Undersigned\nshall not be prohibited from (a) employing any such person who contacts the Undersigned on his or her own initiative and without any direct or\nindirect solicitation by the Undersigned, (b) employing any such person in response to generalized solicitations for employees (which solicitations\nare not specifically targeted at the Company’s or its subsidiaries’ employees) through the use of media advertisements, professional search firms or\notherwise, (c) employing any such person who has not been employed by the Company for a period of six months prior\n2\nto employment with the Undersigned, or (d) if the Undersigned enters into a Potential Transaction and a definitive agreement regarding the\nCompany, employing such persons connected with the Company in accordance with such definitive agreement and in accordance with all applicable\nlaws.\nThe Undersigned acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the Company,\nand the Company has the exclusive right, title, and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of any disclosure of Proprietary Information under this agreement.\nThe Undersigned acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Proprietary Information, and the Undersigned agrees that neither the Company nor any of its\nRepresentatives shall have any liability to the Undersigned or any of its Representatives relating to or arising from the use of any Proprietary\nInformation by the Undersigned or its Representatives or for any errors therein or omissions therefrom. The Undersigned also agrees that it is not\nentitled to rely on the accuracy or completeness of any Proprietary Information and that it shall be entitled to rely solely on such representations and\nwarranties regarding Proprietary Information as may be made to it in any final agreement relating to a Potential Transaction, subject to the terms and\nconditions of such agreement.\nThe Undersigned acknowledges that the Company may establish procedures and guidelines (the “Procedures™) for the submission of proposals\nwith respect to a Potential Transaction. The Undersigned acknowledges and agrees that (a) the Company and its Representatives are free to conduct\nthe process leading up to a Potential Transaction as the Company and its Representatives, in their sole discretion, determine (including, without\nlimitation, by negotiating with any third party and entering into a preliminary or definitive agreement without prior notice to the Undersigned or any\nother person); (b) the Company reserves the right, in its sole discretion, to change the Procedures relating to the consideration of a Potential\nTransaction at any time without prior notice to the Undersigned or any other person, to reject any and all proposals made by the Undersigned or any\nof its Representatives regarding a Potential Transaction, and to terminate discussions and negotiations with the Undersigned at any time and for any\nreason; and (c) neither the Company nor any of its Representatives nor any third party with whom the Company may enter into any agreement for or\ncomplete any transaction, shall have any liability to the Undersigned or its Representatives arising out of or relating to such transaction.\nExcept as permitted herein, the Undersigned agrees not to initiate or maintain contact (except for contacts made in connection with existing\ncommercial relationships and/or in the ordinary .course of business) with any officer, director, employee or agent of the Company with respect to the\nPotential Transaction except with the express prior permission of the Company. It is understood that, if appropriate, the Company will arrange for\ncontacts for due diligence purposes. It is further understood that all (a) communications regarding a Potential Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings and (d) discussions or questions regarding the Procedures will be submitted only\nto designated employees of Parent or the Company.\nThis agreement binds the parties only with respect to the matters expressly set forth herein, and neither party is bound or committed to\nnegotiate or consummate a Potential Transaction unless and until a definitive agreement on such matters has been executed and delivered on behalf\nof both parties by their duly authorized officers.\nIf the Undersigned determines that it does not wish to proceed with a Potential Transaction, it will promptly advise the Company of that\ndecision in writing. In such case, or if the Company so requests or a Potential Transaction is not consummated with the Undersigned, the\nUndersigned will promptly destroy all copies of Proprietary Information (and all summaries and notes of the contents or\n3\nparts thereof) in its possession or in the possession of any of its Representatives; provided, however, that the Undersigned shall return all copies of\nProprietary Information in its possession or in the possession of any of its Representatives to the Company, if the Company so requests in writing,\nwithin five (5) business days after receiving such a request from the Company. The Undersigned shall not retain any copies or other reproductions in\nwhole or in part of such material. An officer of the Undersigned shall certify the Undersigned’s compliance with this paragraph. Notwithstanding the\nforegoing, if and to the extent the Undersigned or its Representatives is required by applicable Law or its record keeping policies to retain copies of\nany Proprietary Information, the Undersigned or its Representatives, as applicable, will be permitted to keep and maintain such copies of Proprietary\nInformation subject to the terms of this agreement. Notwithstanding the return or destruction of the Proprietary Information, the Undersigned and its\nRepresentatives shall continue to be bound by their obligations hereunder.\n \n \nThe Undersigned is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information. The Undersigned hereby confirms that it, and its\nRepresentatives, shall take any action necessary to prevent the use of any information about the Company in a way which might violate any antitrust\nor other applicable Law.\nUnless specifically permitted in writing in advance by the Company, the Undersigned agrees that it will not, and it shall cause its\nRepresentatives not to, for a period of 12 months from the date of this agreement (and will not at any time during such period assist or encourage\nothers to): (a) acquire or agree, offer, seek or propose to acquire (or directly or indirectly request permission to do so), directly or indirectly, alone or\nin concert with any other person, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership as defined in Rule 13d\n3 under the Securities Exchange Act of 1934, as amended (the “Act”), of any of the assets, businesses or common stock of the company or any\nsecurities convertible into or exchangeable for or exercisable (whether currently or upon the occurrence of any contingency) for the purchase of\ncommon stock (collectively, “Stock”) or any other rights or options to acquire such ownership (including from any third party); (b) solicit proxies (as\nsuch terms are defined in Rule 14a 1 under the Act), whether or not such solicitation is exempt under Rule 14a 2 under the Act, with respect to any\nmatter from holders of any shares of Stock, or make any communication exempted from the definition of solicitation by Rule 14a 1(1)(2)(iv) under\nthe Act; (c) offer to enter into or may any public announcement or proposal with respect to any merger, business combination, recapitalization,\nrestructuring or other extraordinary transaction involving the Company or initiate, or induce or attempt to induce or participate with any other\nperson, entity or group (as defined in Section 13(d)(3) of the Act) to initiate, any stockholder proposal or tender offer for any Stock, any change of\ncontrol of the Company, or the convening of the stockholders’ meeting of the Company; (d) request the Company (or its directors, officers,\nemployees or agents), directly or indirectly, to amend or waive any provision of this paragraph; (e) take any action inconsistent with any of the\nforegoing subparagraphs (a) through (d); or (f) take any action with respect to any of the matters described in this paragraph that requires public\ndisclosure or disclose any intention inconsistent with the foregoing.\nIt is understood that the covenants of this agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. The Company may be irreparably harmed by a breach of this agreement, and the use of the Proprietary Information for the business\npurposes of any person other than the parties to this agreement may enable such person to compete unfairly with the Company. In the event that the\nUndersigned or its Representatives shall have knowledge of any breach of this agreement, it shall promptly give notice thereof to the Company.\nWithout prejudice to the rights and remedies otherwise available to the Company, the Undersigned agrees that the Company shall be\n4\nentitled to seek equitable relief by way of injunction, specific performance, or otherwise if the Undersigned or any of its Representatives breach or\nthreaten to breach any of the provisions of this agreement. Additionally, the Company shall not be required to post bond, any requirement of bond\nbeing specifically waived by you.\nIt is further understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power\nor privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of New York applicable to contracts executed in and to be\nperformed in that State. The parties hereto agree that the venue in any and all actions and proceedings related to this agreement shall be the state and\nfederal courts in and for New York, New York, which courts shall have exclusive personal and subject matter jurisdiction for such purpose, and the\nparties hereto irrevocably submit to the exclusive jurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the\nmaintenance of any such action or proceeding.\nThe Undersigned agrees that the rights and remedies of the Company under this agreement shall inure to the benefit of the Company, its\naffiliates, successors and assigns. The Undersigned may not assign this agreement without the prior written consent of the Company which may be\nwithheld at the Company’s sole discretion. This agreement shall be binding upon the Undersigned’s successors and permitted assigns. Unless\notherwise extended in writing by all of the parties or otherwise terminated pursuant to its terms, this agreement shall automatically terminate on the\nearlier of (i) the second anniversary of the date hereof and (ii) the execution of a definitive agreement for a Potential Transaction.\n5\nThis agreement contains the entire agreement between the Company and the Undersigned concerning the subject matter hereof, and no\nmodification of this agreement or waiver of the terms and conditions hereof shall be binding upon the Company or the Undersigned, unless approved\nin writing by both of the parties hereto. If any provision of this agreement shall, for any reason, be adjudged by any court of competent jurisdiction\nto be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this agreement but shall be confined in its\noperation to the provision of this agreement directly involved in the controversy in which such judgment shall have been rendered. This agreement\nmay be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.\nCOMPUDYNE CORPORATION\nBy: /s/ Geoffrey Feidelberg\nName: Geoffrey Feidelberg\nTitle: CEO\n \nAccepted and Agreed\nas of the date set forth above:\nPOTOMAC KEY GROUP, LLC:\nBy: /s/ Stuart Mackiernan\nName: Stuart Mackiernan\nTitle: President\nJanuary 3, 2007\nDate	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nPRIVILEGED AND CONFIDENTIAL\nDecember 28, 2006\nPotomac Key Group, LLC\nAttn: Stuart Mackiernan\nRe: Confidentiality. Agreement\nDear Sir:\nPotomac Key Group, LLC (the "Undersigned") has requested information concerning CompuDyne Corporation and its subsidiaries (together,\nthe\n"Company.") in connection with its consideration of a potential acquisition of, or other transaction with, such Company (the "Potential\nTransaction"). As a condition to the furnishing to the Undersigned and its Representatives (as defined below) of certain information about the\nCompany, the Undersigned agrees to be bound by the terms and conditions of this agreement, and the Undersigned further agrees to inform any\nRepresentative to whom Proprietary Information (as defined below) is disclosed pursuant to the terms of this agreement of the contents of this\nagreement and the confidential nature of the Proprietary Information (as defined below).\nAll information furnished by or on behalf of the Company or its Representatives, or learned by the Undersigned during any visits to the\nCompany's facilities in connection with its consideration of a Potential Transaction, whether furnished or learned before or after the date hereof,\nwhether oral, written or electronic, and regardless of the manner or form in which it is furnished or learned, including, without limitation, all data,\nreports, interpretations, forecasts and records containing or otherwise reflecting information concerning the Company or its affiliates or the Potential\nTransaction, whether prepared by the Company or others, and any summaries, analyses or other documents created by the Undersigned, the\nCompany or others which refer to, relate to, discuss, constitute, or embody all or any portion of the Proprietary Information provided by the\nCompany or its Representatives, is referred to in this agreement as "Proprietary. Information." The term Proprietary Information shall not include,\nhowever, information which (a) is or becomes generally available to the public other than as a result of a disclosure by the Undersigned or its\nRepresentatives, (b) was in the Undersigned's possession and obtained on a non-confidential basis prior to its disclosure by the Company or its\nRepresentatives, (c) becomes available to the Undersigned on a non-confidential basis from a person other than the Company or its Representatives\nwho, to the knowledge after due inquiry of the Undersigned or its Representatives, as the case may be, is not otherwise bound by a confidentiality\nagreement with the Company or any of its Representatives, or is otherwise not under an obligation to the Company or any of its Representatives\nnot\nto transmit the information to the Undersigned or (d) is developed by the Undersigned or its Representative without reference to the Proprietary\nInformation. As used in this agreement, the term "Representatives" means, as to any person, such person's affiliates and its and their directors,\nofficers, employees, agents, advisors (including, without limitation, financial advisors, counsel and accountants) and\ncontrolling persons. As used in this agreement, the term "person" shall be broadly interpreted to include, without limitation, the media, any\ncorporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Company or CompuDyne Corporation\n("Parent"), the Undersigned agrees that for a period of two years (a) except as required by law, rule, regulation, stock exchange rule or disclosure\nrequirement of the Securities and Exchange Commission (collectively, "Law"), or with the prior written consent of the Company, to keep all\nProprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than its Representatives who are\nactively and directly participating in the evaluation of a Potential Transaction, (b) not to use Proprietary Information for any purpose other than in\nconnection with its evaluation or negotiation of a Potential Transaction or the consummation of a Potential Transaction and (c) except as required\nby\nLaw, not to disclose to any person (other than those of its Representatives who are participating in the evaluation of a Potential Transaction) any\ninformation about a Potential Transaction, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof, or the fact that Proprietary Information has been made available to the\nUndersigned or its Representatives. At a minimum, the Undersigned shall treat any Proprietary Information according to the same internal security\nprocedures and with the same degree of care regarding its secrecy and confidentiality as similar information belonging to it is treated within its\norganization. The Undersigned shall be responsible for any breach of the terms of this agreement by the Undersigned or any of its Representatives\nand agrees to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary\nInformation.\nIn the event that the Undersigned or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative demand,\nregulatory demand or similar process or pursuant to applicable Law to disclose any Proprietary Information or any other information concerning the\nCompany or a Potential Transaction, the Undersigned shall seek a written opinion from reputable and experienced outside counsel that a specific\ndisclosure is necessary in order for the Undersigned not to be in violation of or default under an applicable Law or order. The Undersigned agrees\nthat, to the extent permitted by Law, it shall provide the Company with prompt notice of such request or requirement as well as a copy of such\nopinion together with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult\nwith and consider the suggestions of the Company concerning the nature and scope of the information the Undersigned proposes to disclose. The\nCompany may seek, at the Company's sole expense, an appropriate protective order or other remedy, may consult with the Undersigned with respect\nto the Company's taking steps to resist or narrow the scope of such request or legal process, or may waive compliance, in whole or in part, with the\nterms of this agreement. The Undersigned agrees to cooperate fully, at the Company's sole expense, with and not to oppose any action by the\nCompany to obtain a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or that\nthe\nCompany waives compliance with the terms of this agreement, the Undersigned may disclose only that part of the Proprietary Information .as\nit\nis\nadvised by counsel in writing is legally required. In any such event, the Undersigned shall use its best efforts to ensure that all Proprietary\nInformation and other information that is so disclosed will be accorded confidential treatment.\nThe Undersigned agrees that, without the Company's consent, it will not for a period of one year from the date hereof directly or indirectly\nsolicit for employment or employ any person who is now an officer of the Company or its subsidiaries; provided, however, that the Undersigned\nshall not be prohibited from (a) employing any such person who contacts the Undersigned on his or her own initiative and without any direct or\nindirect solicitation by the Undersigned, (b) employing any such person in response to generalized solicitations for employees (which solicitations\nare\nnot specifically targeted at the Company's or its subsidiaries' employees) through the use of media advertisements, professional search firms or\notherwise, (c) employing any such person who has not been employed by the Company for a period of six months prior\n2\nto employment with the Undersigned, or (d) if the Undersigned enters into a Potential Transaction and a definitive agreement regarding the\nCompany, employing such persons connected with the Company in accordance with such definitive agreement and in accordance with all applicable\nlaws.\nThe Undersigned acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the Company,\nand the Company has the exclusive right, title, and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of any disclosure of Proprietary Information under this agreement.\nThe Undersigned acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Proprietary Information, and the Undersigned agrees that neither the Company nor any of its\nRepresentatives shall have any liability to the Undersigned or any of its Representatives relating to or arising from the use of any Proprietary\nInformation by the Undersigned or its Representatives or for any errors therein or omissions therefrom. The Undersigned also agrees that it is not\nentitled to rely on the accuracy or completeness of any Proprietary Information and that it shall be entitled to rely solely on such representations and\nwarranties regarding Proprietary Information as may be made to it in any final agreement relating to a Potential Transaction, subject to the terms and\nconditions of such agreement.\nThe Undersigned acknowledges that the Company may establish procedures and guidelines (the "Procedures") for the submission of proposals\nwith\nrespect\nto\na\nPotential\nTransaction.\nThe\nUndersigned\nacknowledges\nand\nagrees\nthat\n(a)\nthe\nCompany\nand\nits\nRepresentatives\nare\nfree\nto\nconduct\nthe process leading up to a Potential Transaction as the Company and its Representatives, in their sole discretion, determine (including, without\nlimitation, by negotiating with any third party and entering into a preliminary or definitive agreement without prior notice to the Undersigned or any\nother person); (b) the Company reserves the right, in its sole discretion, to change the Procedures relating to the consideration of a Potential\nTransaction at any time without prior notice to the Undersigned or any other person, to reject any and all proposals made by the Undersigned or any\nof its Representatives regarding a Potential Transaction, and to terminate discussions and negotiations with the Undersigned at any time and for any\nreason; and (c) neither the Company nor any of its Representatives nor any third party with whom the Company may enter into any agreement for or\ncomplete any transaction, shall have any liability to the Undersigned or its Representatives arising out of or relating to such transaction.\nExcept as permitted herein, the Undersigned agrees not to initiate or maintain contact (except for contacts made in connection with existing\ncommercial relationships and/or in the ordinary .course of business) with any officer, director, employee or agent of the Company with respect to the\nPotential Transaction except with the express prior permission of the Company. It is understood that, if appropriate, the Company will arrange for\ncontacts for due diligence purposes. It is further understood that all (a) communications regarding a Potential Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings and (d) discussions or questions regarding the Procedures will be submitted only\nto designated employees of Parent or the Company.\nThis agreement binds the parties only with respect to the matters expressly set forth herein, and neither party is bound or committed to\nnegotiate or consummate a Potential Transaction unless and until a definitive agreement on such matters has been executed and delivered on behalf\nof both parties by their duly authorized officers.\nIf the Undersigned determines that it does not wish to proceed with a Potential Transaction, it will promptly advise the Company of that\ndecision in writing. In such case, or if the Company so requests or a Potential Transaction is not consummated with the Undersigned, the\nUndersigned will promptly destroy all copies of Proprietary Information (and all summaries and notes of the contents or\n3\nparts thereof) in its possession or in the possession of any of its Representatives; provided, however, that the Undersigned shall return all copies of\nProprietary Information in its possession or in the possession of any of its Representatives to the Company, if the Company so requests in writing,\nwithin five (5) business days after receiving such a request from the Company. The Undersigned shall not retain any copies or other reproductions in\nwhole or in part of such material. An officer of the Undersigned shall certify the Undersigned's compliance with this paragraph. Notwithstanding the\nforegoing, if and to the extent the Undersigned or its Representatives is required by applicable Law or its record keeping policies to retain copies of\nany Proprietary Information, the Undersigned or its Representatives, as applicable, will be permitted to keep and maintain such copies of Proprietary\nInformation subject to the terms of this agreement. Notwithstanding the return or destruction of the Proprietary Information, the Undersigned and its\nRepresentatives shall continue to be bound by their obligations hereunder.\nThe Undersigned is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information. The Undersigned hereby confirms that it, and its\nRepresentatives, shall take any action necessary to prevent the use of any information about the Company in a way which might violate any antitrust\nor other applicable Law.\nUnless specifically permitted in writing in advance by the Company, the Undersigned agrees that it will not, and it shall cause its\nRepresentatives not to, for a period of 12 months from the date of this agreement (and will not at any time during such period assist or encourage\nothers to): (a) acquire or agree, offer, seek or propose to acquire (or directly or indirectly request permission to do so), directly or indirectly, alone or\nin concert with any other person, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership as defined in Rule 13d\n3 under the Securities Exchange Act of 1934, as amended (the "Act"), of any of the assets, businesses or common stock of the company or any\nsecurities convertible into or exchangeable for or exercisable (whether currently or upon the occurrence of any contingency) for the purchase of\ncommon stock (collectively, "Stock") or any other rights or options to acquire such ownership (including from any third party); (b) solicit proxies (as\nsuch terms are defined in Rule 14a 1 under the Act), whether or not such solicitation is exempt under Rule 14a 2 under the Act, with respect to any\nmatter from holders of any shares of Stock, or make any communication exempted from the definition of solicitation by Rule 14a 1(1)(2)(iv) under\nthe Act; (c) offer to enter into or may any public announcement or proposal with respect to any merger, business combination, recapitalization,\nrestructuring or other extraordinary transaction involving the Company or initiate, or induce or attempt to induce or participate with any other\nperson, entity or group (as defined in Section 13(d)(3) of the Act) to initiate, any stockholder proposal or tender offer for any Stock, any change of\ncontrol of the Company, or the convening of the stockholders' meeting of the Company; (d) request the Company (or its directors, officers,\nemployees or agents), directly or indirectly, to amend or waive any provision of this paragraph; (e) take any action inconsistent with any of the\nforegoing subparagraphs (a) through (d); or (f) take any action with respect to any of the matters described in this paragraph that requires public\ndisclosure or disclose any intention inconsistent with the foregoing.\nIt is understood that the covenants of this agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. The Company may be irreparably harmed by a breach of this agreement, and the use of the Proprietary Information for the business\npurposes of any person other than the parties to this agreement may enable such person to compete unfairly with the Company. In the event that the\nUndersigned or its Representatives shall have knowledge of any breach of this agreement, it shall promptly give notice thereof to the Company.\nWithout prejudice to the rights and remedies otherwise available to the Company, the Undersigned agrees that the Company shall be\n4\nentitled to seek equitable relief by way of injunction, specific performance, or otherwise if the Undersigned or any of its Representatives breach or\nthreaten to breach any of the provisions of this agreement. Additionally, the Company shall not be required to post bond, any requirement of bond\nbeing specifically waived by you.\nIt is further understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate\nas\na waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power\nor privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of New York applicable to contracts executed in and to be\nperformed in that State. The parties hereto agree that the venue in any and all actions and proceedings related to this agreement shall be the state and\nfederal courts in and for New York, New York, which courts shall have exclusive personal and subject matter jurisdiction for such purpose, and the\nparties hereto irrevocably submit to the exclusive jurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the\nmaintenance of any such action or proceeding.\nThe Undersigned agrees that the rights and remedies of the Company under this agreement shall inure to the benefit of the Company, its\naffiliates, successors and assigns. The Undersigned may not assign this agreement without the prior written consent of the Company which may be\nwithheld at the Company's sole discretion. This agreement shall be binding upon the Undersigned's successors and permitted assigns. Unless\notherwise extended in writing by all of the parties or otherwise terminated pursuant to its terms, this agreement shall automatically terminate on the\nearlier of (i) the second anniversary of the date hereof and (ii) the execution of a definitive agreement for a Potential Transaction.\n5\nThis agreement contains the entire agreement between the Company and the Undersigned concerning the subject matter hereof, and no\nmodification of this agreement or waiver of the terms and conditions hereof shall be binding upon the Company or the Undersigned, unless approved\nin writing by both of the parties hereto. If any provision of this agreement shall, for any reason, be adjudged by any court of competent jurisdiction\nto be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this agreement but shall be confined in its\noperation to the provision of this agreement directly involved in the controversy in which such judgment shall have been rendered. This agreement\nmay be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.\nCOMPUDYNE CORPORATION\nBy: /s/ Geoffrey. Feidelberg\nName: Geoffrey. Feidelberg\nTitle: CFO\nAccepted and Agreed\nas of the date set forth above:\nPOTOMAC KEY GROUP, LLC:\nBy: /s/ Stuart Mackiernan\nName: Stuart Mackiernan\nTitle: President\nJanuary 3, 2007\nDate\n6	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nPRIVILEGED AND CONFIDENTIAL\nDecember 28, 2006\nPotomac Key Group, LLC\nAttn: Stuart Mackiernan\nRe: Confidentiality Agreement\nDear Sir:\nPotomac Key Group, LLC (the “Undersigned”) has requested information concerning CompuDyne Corporation and its subsidiaries (together,\nthe “Company”) in connection with its consideration of a potential acquisition of, or other transaction with, such Company (the “Potential\nTransaction”). As a condition to the furnishing to the Undersigned and its Representatives (as defined below) of certain information about the\nCompany, the Undersigned agrees to be bound by the terms and conditions of this agreement, and the Undersigned further agrees to inform any\nRepresentative to whom Proprietary Information (as defined below) is disclosed pursuant to the terms of this agreement of the contents of this\nagreement and the confidential nature of the Proprietary Information (as defined below).\nAll information furnished by or on behalf of the Company or its Representatives, or learned by the Undersigned during any visits to the\nCompany’s facilities in connection with its consideration of a Potential Transaction, whether furnished or learned before or after the date hereof,\nwhether oral, written or electronic, and regardless of the manner or form in which it is furnished or learned, including, without limitation, all data,\nreports, interpretations, forecasts and records containing or otherwise reflecting information concerning the Company or its affiliates or the Potential\nTransaction, whether prepared by the Company or others, and any summaries, analyses or other documents created by the Undersigned, the\nCompany or others which refer to, relate to, discuss, constitute, or embody all or any portion of the Proprietary Information provided by the\nCompany or its Representatives, is referred to in this agreement as “Proprietary Information.” The term Proprietary Information shall not include,\nhowever, information which (a) is or becomes generally available to the public other than as a result of a disclosure by the Undersigned or its\nRepresentatives, (b) was in the Undersigned’s possession and obtained on a non-confidential basis prior to its disclosure by the Company or its\nRepresentatives, (c) becomes available to the Undersigned on a non-confidential basis from a person other than the Company or its Representatives\nwho, to the knowledge after due inquiry of the Undersigned or its Representatives, as the case may be, is not otherwise bound by a confidentiality\nagreement with the Company or any of its Representatives, or is otherwise not under an obligation to the Company or any of its Representatives not\nto transmit the information to the Undersigned or (d) is developed by the Undersigned or its Representative without reference to the Proprietary\nInformation. As used in this agreement, the term “Representatives” means, as to any person, such person’s affiliates and its and their directors,\nofficers, employees, agents, advisors (including, without limitation, financial advisors, counsel and accountants) and\ncontrolling persons. As used in this agreement, the term “person” shall be broadly interpreted to include, without limitation, the media, any\ncorporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Company or CompuDyne Corporation\n(“Parent”), the Undersigned agrees that for a period of two years (a) except as required by law, rule, regulation, stock exchange rule or disclosure\nrequirement of the Securities and Exchange Commission (collectively, “Law”), or with the prior written consent of the Company, to keep all\nProprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than its Representatives who are\nactively and directly participating in the evaluation of a Potential Transaction, (b) not to use Proprietary Information for any purpose other than in\nconnection with its evaluation or negotiation of a Potential Transaction or the consummation of a Potential Transaction and (c) except as required by\nLaw, not to disclose to any person (other than those of its Representatives who are participating in the evaluation of a Potential Transaction) any\ninformation about a Potential Transaction, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof, or the fact that Proprietary Information has been made available to the\nUndersigned or its Representatives. At a minimum, the Undersigned shall treat any Proprietary Information according to the same internal security\nprocedures and with the same degree of care regarding its secrecy and confidentiality as similar information belonging to it is treated within its\norganization. The Undersigned shall be responsible for any breach of the terms of this agreement by the Undersigned or any of its Representatives\nand agrees to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary\nInformation.\nIn the event that the Undersigned or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative demand,\nregulatory demand or similar process or pursuant to applicable Law to disclose any Proprietary Information or any other information concerning the\nCompany or a Potential Transaction, the Undersigned shall seek a written opinion from reputable and experienced outside counsel that a specific\ndisclosure is necessary in order for the Undersigned not to be in violation of or default under an applicable Law or order. The Undersigned agrees\nthat, to the extent permitted by Law, it shall provide the Company with prompt notice of such request or requirement as well as a copy of such\nopinion together with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult\nwith and consider the suggestions of the Company concerning the nature and scope of the information the Undersigned proposes to disclose. The\nCompany may seek, at the Company’s sole expense, an appropriate protective order or other remedy, may consult with the Undersigned with respect\nto the Company’s taking steps to resist or narrow the scope of such request or legal process, or may waive compliance, in whole or in part, with the\nterms of this agreement. The Undersigned agrees to cooperate fully, at the Company’s sole expense, with and not to oppose any action by the\nCompany to obtain a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or that the\nCompany waives compliance with the terms of this agreement, the Undersigned may disclose only that part of the Proprietary Information .as it is\nadvised by counsel in writing is legally required. In any such event, the Undersigned shall use its best efforts to ensure that all Proprietary\nInformation and other information that is so disclosed will be accorded confidential treatment.\nThe Undersigned agrees that, without the Company’s consent, it will not for a period of one year from the date hereof directly or indirectly\nsolicit for employment or employ any person who is now an officer of the Company or its subsidiaries; provided, however, that the Undersigned\nshall not be prohibited from (a) employing any such person who contacts the Undersigned on his or her own initiative and without any direct or\nindirect solicitation by the Undersigned, (b) employing any such person in response to generalized solicitations for employees (which solicitations\nare not specifically targeted at the Company’s or its subsidiaries’ employees) through the use of media advertisements, professional search firms or\notherwise, (c) employing any such person who has not been employed by the Company for a period of six months prior\n2\nto employment with the Undersigned, or (d) if the Undersigned enters into a Potential Transaction and a definitive agreement regarding the\nCompany, employing such persons connected with the Company in accordance with such definitive agreement and in accordance with all applicable\nlaws.\nThe Undersigned acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the Company,\nand the Company has the exclusive right, title, and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of any disclosure of Proprietary Information under this agreement.\nThe Undersigned acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Proprietary Information, and the Undersigned agrees that neither the Company nor any of its\nRepresentatives shall have any liability to the Undersigned or any of its Representatives relating to or arising from the use of any Proprietary\nInformation by the Undersigned or its Representatives or for any errors therein or omissions therefrom. The Undersigned also agrees that it is not\nentitled to rely on the accuracy or completeness of any Proprietary Information and that it shall be entitled to rely solely on such representations and\nwarranties regarding Proprietary Information as may be made to it in any final agreement relating to a Potential Transaction, subject to the terms and\nconditions of such agreement.\nThe Undersigned acknowledges that the Company may establish procedures and guidelines (the “Procedures”) for the submission of proposals\nwith respect to a Potential Transaction. The Undersigned acknowledges and agrees that (a) the Company and its Representatives are free to conduct\nthe process leading up to a Potential Transaction as the Company and its Representatives, in their sole discretion, determine (including, without\nlimitation, by negotiating with any third party and entering into a preliminary or definitive agreement without prior notice to the Undersigned or any\nother person); (b) the Company reserves the right, in its sole discretion, to change the Procedures relating to the consideration of a Potential\nTransaction at any time without prior notice to the Undersigned or any other person, to reject any and all proposals made by the Undersigned or any\nof its Representatives regarding a Potential Transaction, and to terminate discussions and negotiations with the Undersigned at any time and for any\nreason; and (c) neither the Company nor any of its Representatives nor any third party with whom the Company may enter into any agreement for or\ncomplete any transaction, shall have any liability to the Undersigned or its Representatives arising out of or relating to such transaction.\nExcept as permitted herein, the Undersigned agrees not to initiate or maintain contact (except for contacts made in connection with existing\ncommercial relationships and/or in the ordinary .course of business) with any officer, director, employee or agent of the Company with respect to the\nPotential Transaction except with the express prior permission of the Company. It is understood that, if appropriate, the Company will arrange for\ncontacts for due diligence purposes. It is further understood that all (a) communications regarding a Potential Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings and (d) discussions or questions regarding the Procedures will be submitted only\nto designated employees of Parent or the Company.\nThis agreement binds the parties only with respect to the matters expressly set forth herein, and neither party is bound or committed to\nnegotiate or consummate a Potential Transaction unless and until a definitive agreement on such matters has been executed and delivered on behalf\nof both parties by their duly authorized officers.\nIf the Undersigned determines that it does not wish to proceed with a Potential Transaction, it will promptly advise the Company of that\ndecision in writing. In such case, or if the Company so requests or a Potential Transaction is not consummated with the Undersigned, the\nUndersigned will promptly destroy all copies of Proprietary Information (and all summaries and notes of the contents or\n3\nparts thereof) in its possession or in the possession of any of its Representatives; provided, however, that the Undersigned shall return all copies of\nProprietary Information in its possession or in the possession of any of its Representatives to the Company, if the Company so requests in writing,\nwithin five (5) business days after receiving such a request from the Company. The Undersigned shall not retain any copies or other reproductions in\nwhole or in part of such material. An officer of the Undersigned shall certify the Undersigned’s compliance with this paragraph. Notwithstanding the\nforegoing, if and to the extent the Undersigned or its Representatives is required by applicable Law or its record keeping policies to retain copies of\nany Proprietary Information, the Undersigned or its Representatives, as applicable, will be permitted to keep and maintain such copies of Proprietary\nInformation subject to the terms of this agreement. Notwithstanding the return or destruction of the Proprietary Information, the Undersigned and its\nRepresentatives shall continue to be bound by their obligations hereunder.\nThe Undersigned is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information. The Undersigned hereby confirms that it, and its\nRepresentatives, shall take any action necessary to prevent the use of any information about the Company in a way which might violate any antitrust\nor other applicable Law.\nUnless specifically permitted in writing in advance by the Company, the Undersigned agrees that it will not, and it shall cause its\nRepresentatives not to, for a period of 12 months from the date of this agreement (and will not at any time during such period assist or encourage\nothers to): (a) acquire or agree, offer, seek or propose to acquire (or directly or indirectly request permission to do so), directly or indirectly, alone or\nin concert with any other person, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership as defined in Rule 13d\n3 under the Securities Exchange Act of 1934, as amended (the “Act”), of any of the assets, businesses or common stock of the company or any\nsecurities convertible into or exchangeable for or exercisable (whether currently or upon the occurrence of any contingency) for the purchase of\ncommon stock (collectively, “Stock”) or any other rights or options to acquire such ownership (including from any third party); (b) solicit proxies (as\nsuch terms are defined in Rule 14a 1 under the Act), whether or not such solicitation is exempt under Rule 14a 2 under the Act, with respect to any\nmatter from holders of any shares of Stock, or make any communication exempted from the definition of solicitation by Rule 14a l(l)(2)(iv) under\nthe Act; (c) offer to enter into or may any public announcement or proposal with respect to any merger, business combination, recapitalization,\nrestructuring or other extraordinary transaction involving the Company or initiate, or induce or attempt to induce or participate with any other\nperson, entity or group (as defined in Section 13(d)(3) of the Act) to initiate, any stockholder proposal or tender offer for any Stock, any change of\ncontrol of the Company, or the convening of the stockholders’ meeting of the Company; (d) request the Company (or its directors, officers,\nemployees or agents), directly or indirectly, to amend or waive any provision of this paragraph; (e) take any action inconsistent with any of the\nforegoing subparagraphs (a) through (d); or (f) take any action with respect to any of the matters described in this paragraph that requires public\ndisclosure or disclose any intention inconsistent with the foregoing.\nIt is understood that the covenants of this agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. The Company may be irreparably harmed by a breach of this agreement, and the use of the Proprietary Information for the business\npurposes of any person other than the parties to this agreement may enable such person to compete unfairly with the Company. In the event that the\nUndersigned or its Representatives shall have knowledge of any breach of this agreement, it shall promptly give notice thereof to the Company.\nWithout prejudice to the rights and remedies otherwise available to the Company, the Undersigned agrees that the Company shall be\n4\nentitled to seek equitable relief by way of injunction, specific performance, or otherwise if the Undersigned or any of its Representatives breach or\nthreaten to breach any of the provisions of this agreement. Additionally, the Company shall not be required to post bond, any requirement of bond\nbeing specifically waived by you.\nIt is further understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power\nor privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of New York applicable to contracts executed in and to be\nperformed in that State. The parties hereto agree that the venue in any and all actions and proceedings related to this agreement shall be the state and\nfederal courts in and for New York, New York, which courts shall have exclusive personal and subject matter jurisdiction for such purpose, and the\nparties hereto irrevocably submit to the exclusive jurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the\nmaintenance of any such action or proceeding.\nThe Undersigned agrees that the rights and remedies of the Company under this agreement shall inure to the benefit of the Company, its\naffiliates, successors and assigns. The Undersigned may not assign this agreement without the prior written consent of the Company which may be\nwithheld at the Company’s sole discretion. This agreement shall be binding upon the Undersigned’s successors and permitted assigns. Unless\notherwise extended in writing by all of the parties or otherwise terminated pursuant to its terms, this agreement shall automatically terminate on the\nearlier of (i) the second anniversary of the date hereof and (ii) the execution of a definitive agreement for a Potential Transaction.\n5\nThis agreement contains the entire agreement between the Company and the Undersigned concerning the subject matter hereof, and no\nmodification of this agreement or waiver of the terms and conditions hereof shall be binding upon the Company or the Undersigned, unless approved\nin writing by both of the parties hereto. If any provision of this agreement shall, for any reason, be adjudged by any court of competent jurisdiction\nto be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this agreement but shall be confined in its\noperation to the provision of this agreement directly involved in the controversy in which such judgment shall have been rendered. This agreement\nmay be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.\nCOMPUDYNE CORPORATION\nBy: /s/ Geoffrey Feidelberg\nName: Geoffrey Feidelberg\nTitle: CFO\nAccepted and Agreed\nas of the date set forth above:\nPOTOMAC KEY GROUP, LLC:\nBy: /s/ Stuart Mackiernan\nName: Stuart Mackiernan\nTitle: President\nJanuary 3, 2007\nDate\n6
05f4ad5ef8f2f3998da46ad87c55e71b.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 d907418dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 11,2014\nFortune Brands Home & Security, Inc.\n520 Lake Cook Road\nDeerfield, IL 60015\nLadies and Gentlemen:\nIn connection with your consideration of a possible negotiated transaction with Norcraft Companies, Inc. (together with its affiliates and\nsubsidiaries, the “Company”) (such possible transaction between the Company and you or your controlled affiliates being referred to herein as\nthe “Transaction”), you have requested non-public, confidential or proprietary information about the Company including, without limitation,\ninformation in any form or medium regarding the Company’s current and prospective business, plans, forecasts, assets, liabilities, conditions,\naffairs, results, finances, strategies, products, services, technology, software, trade secrets, business processes, know-how, data, employees,\nagents, customers, licensors and vendors, (all such furnished information and all analyses, compilations, data, studies, summaries, notes,\ninterpretations, memoranda or other documents (in any form or medium) prepared by or for you or your Representatives (defined herein)\ncontaining or based in whole or in part on or reflecting any such furnished information, collectively, the “Confidential Information”). In\nconsideration of Confidential Information being furnished to you by or on behalf of the Company, you hereby agree as follows:\n1. The Confidential Information will be used by you and your directors, officers, employees, agents and advisors (collectively,\n“Representatives”) solely for the purpose of evaluating the Transaction. Unless and until the Transaction has been consummated pursuant to\ndefinitive agreement (not including any executed letter of intent, any other preliminary written agreement or any written or oral acceptance of an\noffer or bid which you submit) (the “Transaction Agreement”), no portion of the Confidential Information will be disclosed by you to any other\nperson or entity, including, without limitation, the media (whether electronic, print, broadcast or other) or any corporation, company, partnership,\nlimited liability company, joint venture or individual (each, a “Person”), except to your Representatives who need to know such information\nsolely for the purpose of evaluating the Transaction. Prior to any disclosure of Confidential Information by you to any such Representatives, you\nwill inform them of the confidential nature of the Confidential Information and direct them to abide by the terms of this agreement (the\n“Agreement”). You will use reasonable precautions, in any event no less rigorous than the precautions you take to protect your own confidential\ninformation, to safeguard the Confidential Information, and you will take reasonable measures to restrict access to the Confidential Information\nand prevent prohibited or unauthorized disclosure or use of the Confidential Information by your Representatives. You agree to be responsible for\nany breach of the terms of this Agreement by your Representatives. You hereby acknowledge and agree that all Confidential Information shall be\nand remain the exclusive property of the Company (or, as applicable, third Persons conducting business with the Company). You agree not to\nreproduce or\n-1-\ncopy by any means any Confidential Information without the Company’s prior written consent, except as reasonably required for distribution to\nyour Representatives for purposes of evaluating the Transaction and not to reverse engineer or seek to reveal the trade secrets or know-how\nunderlying any software, technology or other embodiment of intellectual property within the Confidential Information. You represent and warrant\nthat in considering the Transaction and reviewing the Confidential Information, you are acting solely on your own behalf and not as part of a\ngroup with any unaffiliated parties. For the avoidance of doubt, your Representatives shall not, without the prior written consent of the Company,\ninclude any Person that is a customer, supplier or competitor of the Company, or any Person that serves as a director, officer, manager, member,\nagent or employee of any of the foregoing.\n2. You further agree that neither you nor any of your Representatives acting on your behalf will, without the prior written consent of the\nCompany, directly or indirectly, communicate regarding the Transaction with any potential co-investors or other sources of equity financing nor\ndisclose Confidential Information to any such Person. You hereby acknowledge and agree that the Company may grant or withhold its consent to\nany such communications with potential co-investors or other sources of equity financing for any reason (or for no reason) and the Company\nmay condition any such consent on such Persons’ prior entry into a written confidentiality agreement in form and substance satisfactory to the\nCompany. Without the prior written consent of the Company, you agree that you will not, and will cause your Representatives acting on your\nbehalf not to, enter into any agreement, arrangement or other understanding, whether written or oral, that expressly limits, restricts, restrains or\notherwise impairs in any manner, directly or indirectly, the ability of any debt or equity financing source or other Person from providing\nfinancing or other assistance to any other Person (including the Company) with respect to the Transaction or any potential alternative thereto.\n3. If you or any of your Representatives becomes legally required (by deposition, notice, discovery request, subpoena, civil investigative\ndemand or similar process, each a “Request”) to disclose any Confidential Information, you shall, promptly after receipt of such Request, provide\nwritten notice and a copy thereof to the Company, and you shall use reasonable efforts at the Company’s sole expense to provide the Company an\nopportunity to seek a protective order or other appropriate remedy (and you agree to cooperate with the Company at the Company’s sole expense\nin connection with seeking such order or other remedy). If such protective order or other remedy is not obtained, you agree to furnish, and permit\nyour Representatives to furnish, only that portion of the Confidential Information which you determine, after consultation with counsel, is legally\nrequired and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n4. The term “Confidential Information” does not include any information that at the time of disclosure to you or thereafter (a) was already\nin your possession at the time of disclosure, (b) is generally known by the public (other than as a result of its disclosure directly or indirectly by\nyou or your Representatives) or (c) is available to you on a non-confidential basis from a source other than the Company or its advisors, provided\nthat such source is not and was not bound by a confidentiality agreement or other legal duty of confidentiality regarding the Company or the\nConfidential Information.\n-2-\n5. Upon written request by the Company, you will promptly destroy or return to the Company all copies (in any form or medium) of the\nConfidential Information in your possession or control or in the possession or control of your Representatives. Notwithstanding the foregoing,\nyou and your Representatives (i) may retain copies of that portion of the Confidential Information that is required to be retained by applicable\nlaw or in accordance with your and your Representatives’ bona fide internal document retention policies that have been implemented in order to\ncomply with applicable law, regulation, professional standards or your and their reasonable existing business practice, and (ii) shall not be\nobligated to destroy electronically stored copies of the Confidential Information to the extent such destruction is not reasonably practicable;\nprovided that in all cases involving such retention or non-destruction of Confidential Information you shall maintain the confidentiality of such\nConfidential Information and you and your Representatives shall not disclose or use such Confidential Information (other than to the extent\nexplicitly permitted under this Agreement) for as long as this Agreement shall remain in effect.\n6. Without the prior written consent of the Company, you will not, and will direct your Representatives not to, disclose to any Person\n(a) the existence of any communications concerning the Transaction, or the existence of this Agreement or its provisions, (b) that you have\nrequested or received Confidential Information from the Company or its advisors, or (c) the possible occurrence of the Transaction or any of the\nterms, conditions or other facts about the Transaction, including the current status.\n7. Until the earlier of: (a) the consummation of the Transaction pursuant to a Transaction Agreement or (b) one year from the date of this\nAgreement, you agree that: (x) except with the express written consent of the Company’s designated representative, you will not, and you will\nnot knowingly encourage or participate with any other Person to, directly or indirectly, initiate or maintain contact (except for those contacts\nmade in the ordinary course of business) with any officer, director, employee, customer or supplier of the Company regarding the Confidential\nInformation or the Transaction; and (y) except with the express written consent of the Company, you will not, and you will not knowingly\nencourage or participate with any other Person to, directly or indirectly solicit or offer to hire or hire (i) any director or any of the following top 5\nofficers of the Company: Chief Executive Officer, Chief Financial Officer, President of Mid Continent, President of Starmark or President of\nUltraCraft, or (ii) any other employee of the Company whom you first come to know through evaluation and negotiations of the Transaction.\nUnless otherwise agreed to in writing by the Company, all communications regarding the Transaction, requests for additional information,\nrequests for facility tours or management meetings and discussions or questions regarding procedures, will be submitted or directed to the\nCompany’s designated representative.\n8. You hereby acknowledge and agree that you are aware, and that you will advise each of your Representatives to whom Confidential\nInformation is provided, that the U.S. securities laws prohibit any Person who has material non-public information concerning the matters which\nare the subject of this Agreement from purchasing or selling securities of the Company, or from communicating such material non-public\ninformation to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such\nsecurities.\n-3-\n9. You represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company. You\nagree that, for the period beginning on the date hereof and ending on the earlier of (A) the one-year anniversary hereof or (B) the date on which\nthe Company or the Security Holders (defined below) enter into a definitive agreement with a third party to engage in, or make a public\nannouncement with respect to, the acquisition, whether by stock or asset purchase, merger, tender offer or exchange offer or otherwise, of all or\nsubstantially all of the assets of the Company or a majority of the outstanding voting securities of the Company (the “Standstill Period”), neither\nyou nor your Representatives (acting on your behalf or at your direction) will, directly or indirectly, without the prior written consent of the board\nof directors of the Company, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any\nsecurities or assets of the Company, any warrant or option to purchase such securities or assets, any security convertible into any such securities,\nor any other right to acquire such securities or assets (other than purchases of products or services in the ordinary course of business), (ii) enter,\nagree to enter, or propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other\nextraordinary transaction involving the Company, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to\nadvise or influence any Person with respect to the voting of, any voting securities of the Company, (iv) form, join or in any way participate in a\n“group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any\nvoting securities of the Company, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the board of\ndirectors or shareholders of the Company, (vi) otherwise act, alone or in concert with others, to seek to control or influence the management or\nthe policies of the Company, (vii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, any of the foregoing, or\n(viii) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other Persons in connection\nwith any of the foregoing. You further agree that during the Standstill Period neither you nor your Representatives will, directly or indirectly,\nwithout the prior written consent of the board of directors of the Company, (x) make any request directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence), or (y) take any action that could reasonably be expected to require the Company to make a\npublic announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The\nforegoing shall not prohibit you from making a confidential proposal to the Company or any members of its Board of Directors, which it or he\nmay accept or reject in its or his sole discretion, so long as any such proposal is made in a manner that does not require public disclosure thereof\nby any person.\n10. You understand, acknowledge and agree that neither the Company nor any other Person who provides Confidential Information to you\npursuant to this Agreement (collectively, the “Disclosing Parties”) is making any representation or warranty, expressed or implied, as to the\naccuracy or completeness of the Confidential Information or of any other information concerning the Company, the Transaction, or any other\nmatter, in each case provided or prepared by or for the Disclosing Parties, and none of the Disclosing Parties will have any liability to you or any\nother Person resulting from or relating to your or their use of the Confidential Information or any of such other information. You agree that in\ndetermining to enter into and perform this Agreement you are not relying upon any representation, statement, promise, commitment,\nunderstanding or agreement made by or on behalf of the Company or any other Person, except as\n-4-\nexpressly set forth herein. Only those representations or warranties that are expressly set forth in a Transaction Agreement when, as and if duly\nexecuted and delivered by all parties thereto, and subject to such limitations and restrictions as may be expressly agreed in such Transaction\nAgreement, shall have any legal effect.\n11. You understand and agree that (other than this Agreement) no contract, agreement or understanding with respect to the Transaction\nexists nor shall one be deemed to exist between you and the Company unless and until a Transaction Agreement has been duly executed and\ndelivered by all parties thereto. You also agree that neither the Company nor any Disclosing Party will have any obligation of any kind\nwhatsoever with respect to the Transaction by virtue of this Agreement or any other written or oral expression with respect to the Transaction\nexcept (i) in the case of this Agreement, for the matters specifically agreed to herein and (ii) upon execution of the Transaction Agreement to the\nextent expressly set forth therein. You further understand and agree that:\n(a) the Company shall have sole discretion in determining the process for the Transaction;\n(b) any procedures relating to the Transaction may be changed at any time without notice to you or any other Person; and\n(c) the Company may postpone or abandon its efforts to engage in the Transaction at any time without any notice to you.\n12. You understand, acknowledge and agree that any disclosure, use or misappropriation of any Confidential Information in violation of\nthis Agreement would cause the Company irreparable harm, the amount (but not the certainty) of which would be difficult to ascertain. You agree\nthat the Company, in addition to any other remedies available to it, shall be entitled to seek equitable relief, including temporary restraining\norders and preliminary and permanent injunctions, in the event of a breach by you or your Representatives (either actual or threatened) of this\nAgreement (without necessity of posting any bond or other security or proving special damages) and that you shall not oppose the granting of\nsuch relief.\n13. To the extent that any Confidential Information includes materials or other information that may be subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine providing immunity from disclosure, you acknowledge and agree that you\nand the Company have a commonality of legal interest with respect to such matters, and agree that it is your mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine providing immunity from disclosure. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine providing immunity from disclosure shall remain entitled to protection thereunder and shall be entitled to protection under the common\ninterest doctrine, and you agree to take all commercially reasonable measures to preserve, to the fullest extent possible, the applicability of all\nsuch privileges and doctrines, and you further agree that you will cooperate with the Company in efforts by it to preserve, to the fullest extent\npossible, the applicability of all such privileges and doctrines.\n-5-\n14. No provision of this Agreement can be waived or amended except by written consent of the Company. It is understood and agreed that\nno failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or\npartial exercise thereof preclude any other or further exercise thereof.\n15. You understand that the Company and the Company’s security holders (the “Security Holders”) are represented in connection with the\nTransaction by Ropes & Gray LLP (“R&G”). If at any time you are or have been a client of R&G, you hereby irrevocably waive any conflicts\nthat may arise in connection with R&G representing the Company and the Security Holders in connection with the Transaction, and any conflicts\nthat may arise in connection with R&G representing the Security Holders after the closing of the Transaction (the “Closing”), including without\nlimitation in connection with any negotiation, arbitration, mediation, litigation or other proceeding in any way related to a dispute with you\nand/or the Company, on the one hand, and the Security Holders, on the other hand, even if your and the Company’s interests then would be\ndirectly adverse to those of the Security Holders in connection therewith. You represent and warrant that you have consulted with independent\ncounsel of your choosing before agreeing to this Agreement, including to this Section 15 and the waivers contained therein, and that such counsel\nhave explained to, and that you understand, the potential consequences of your agreement\n16. This Agreement is for the benefit of the Company and the other Disclosing Parties (and with respect to Section 15, R&G and the other\ncounsel referred to therein), and shall bind and inure to the benefit of the parties and their respective successors and assigns (provided, however,\nthat you may not assign this Agreement or any rights or obligations hereunder, without the Company’s prior written consent, failing which such\npurported assignment shall be null and void).\n17. This Agreement, and any action arising out of or relating to this Agreement, its negotiation, validity, performance or breach, or the\ntransactions contemplated hereby or the rights and obligations of the parties (whether sounding in contract, tort, statute or otherwise, and whether\nat law or in equity), shall be governed by and construed and enforced in accordance with the domestic substantive laws of the State of Delaware,\nwithout giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. You\nand the Company each irrevocably: (i) consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Wilmington,\nDelaware in any such action, (ii) agree that such courts are convenient forums for that purpose, and shall not seek to dismiss, transfer or remove\nsuch action to any other forum on grounds of lack of personal jurisdiction, improper venue, forum non conveniens or any similar doctrine,\n(iii) consent to service of process in any such action effected by delivery via nationally recognized overnight courier service, addressed to you or\nthe Company, as applicable, at such party’s address set forth above, in addition to any other method of service provided by applicable law,\n(iv) agree that such service of process shall be valid and (v) agree that such action shall be commenced and determined only in such courts.\nNotwithstanding the foregoing, actions or proceedings may be commenced in any jurisdiction to enforce or satisfy orders or judgments of such\ncourts.\n-6-\n18. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE,\nAND AGREE THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL\nBY JURY IN ANY ACTION DESCRIBED IN SECTION 17 HEREOF. THE PARTIES AGREE THAT EITHER OF THEM MAY FILE A\nCOPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-\nFOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY SUCH ACTION\nAND THAT ANY SUCH ACTION WILL INSTEAD BE TRIED BY A JUDGE SITTING WITHOUT A JURY.\n19. Your obligations under this Agreement, except: (i) the obligations with respect to any Confidential Information retained pursuant to\nSection 5 hereof, and (ii) as described in Sections 13, 14, 15, 16, 17 and 18 hereof and this Section 19, shall terminate two (2) years from the date\nhereof provided that such termination shall not relieve you of liability for breach by you or your Representatives prior to termination.\n20. Each party represents and warrants that this Agreement has been duly authorized, executed and delivered by it and constitutes a legal,\nvalid and binding obligation enforceable against such party in accordance with its terms.\n21. This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes any prior or\ncontemporaneous oral or written agreements or understandings with respect thereto.\n[Signature page follows]\n-7-\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this Agreement, which will constitute our\nagreement with respect to the subject matter of this Agreement.\nVery truly yours,\nNorcraft Companies, Inc.\nBy: /s/ Mark Buller\nName: Mark Buller\nTitle: CHAIRMAN & CEO\nAccepted and Agreed To:\nFortune Brands Home & Security, Inc.\nBy: /s/ Robert K. Biggart\nName: Robert K. Biggart\nTitle: Senior Vice President, General Counsel &\nSecretary\n-8-	EX-99.(D)(2) 9 d907418dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 11,2014\nFortune Brands Home & Security, Inc.\n520 Lake Cook Road\nDeerfield, IL 60015\nLadies and Gentlemen:\nIn connection with your consideration of a possible negotiated transaction with Norcraft Companies, Inc. (together with its affiliates and\nsubsidiaries, the “Company”) (such possible transaction between the Company and you or your controlled affiliates being referred to herein as\nthe “Transaction”), you have requested non-public, confidential or proprietary information about the Company including, without limitation,\ninformation in any form or medium regarding the Company’s current and prospective business, plans, forecasts, assets, liabilities, conditions,\naffairs, results, finances, strategies, products, services, technology, software, trade secrets, business processes, know-how, data, employees,\nagents, customers, licensors and vendors, (all such furnished information and all analyses, compilations, data, studies, summaries, notes,\ninterpretations, memoranda or other documents (in any form or medium) prepared by or for you or your Representatives (defined herein)\ncontaining or based in whole or in part on or reflecting any such furnished information, collectively, the “Confidential Information”). In\nconsideration of Confidential Information being furnished to you by or on behalf of the Company, you hereby agree as follows:\n1. The Confidential Information will be used by you and your directors, officers, employees, agents and advisors (collectively,\n“Representatives”) solely for the purpose of evaluating the Transaction. Unless and until the Transaction has been consummated pursuant to\ndefinitive agreement (not including any executed letter of intent, any other preliminary written agreement or any written or oral acceptance of an\noffer or bid which you submit) (the “Transaction Agreement”), no portion of the Confidential Information will be disclosed by you to any other\nperson or entity, including, without limitation, the media (whether electronic, print, broadcast or other) or any corporation, company, partnership,\nlimited liability company, joint venture or individual (each, a “Person”), except to your Representatives who need to know such information\nsolely for the purpose of evaluating the Transaction. Prior to any disclosure of Confidential Information by you to any such Representatives, you\nwill inform them of the confidential nature of the Confidential Information and direct them to abide by the terms of this agreement (the\n“Agreement”). You will use reasonable precautions, in any event no less rigorous than the precautions you take to protect your own confidential\ninformation, to safeguard the Confidential Information, and you will take reasonable measures to restrict access to the Confidential Information\nand prevent prohibited or unauthorized disclosure or use of the Confidential Information by your Representatives. You agree to be responsible for\nany breach of the terms of this Agreement by your Representatives. You hereby acknowledge and agree that all Confidential Information shall be\nand remain the exclusive property of the Company (or, as applicable, third Persons conducting business with the Company). You agree not to\nreproduce or\n \n-1-\ncopy by any means any Confidential Information without the Company’s prior written consent, except as reasonably required for distribution to\nyour Representatives for purposes of evaluating the Transaction and not to reverse engineer or seek to reveal the trade secrets or know-how\nunderlying any software, technology or other embodiment of intellectual property within the Confidential Information. You represent and warrant\nthat in considering the Transaction and reviewing the Confidential Information, you are acting solely on your own behalf and not as part of a\ngroup with any unaffiliated parties. For the avoidance of doubt, your Representatives shall not, without the prior written consent of the Company,\ninclude any Person that is a customer, supplier or competitor of the Company, or any Person that serves as a director, officer, manager, member,\nagent or employee of any of the foregoing.\n2. You further agree that neither you nor any of your Representatives acting on your behalf will, without the prior written consent of the\nCompany, directly or indirectly, communicate regarding the Transaction with any potential co-investors or other sources of equity financing nor\ndisclose Confidential Information to any such Person. You hereby acknowledge and agree that the Company may grant or withhold its consent to\nany such communications with potential co-investors or other sources of equity financing for any reason (or for no reason) and the Company\nmay condition any such consent on such Persons’ prior entry into a written confidentiality agreement in form and substance satisfactory to the\nCompany. Without the prior written consent of the Company, you agree that you will not, and will cause your Representatives acting on your\nbehalf not to, enter into any agreement, arrangement or other understanding, whether written or oral, that expressly limits, restricts, restrains or\notherwise impairs in any manner, directly or indirectly, the ability of any debt or equity financing source or other Person from providing\nfinancing or other assistance to any other Person (including the Company) with respect to the Transaction or any potential alternative thereto.\n3. If you or any of your Representatives becomes legally required (by deposition, notice, discovery request, subpoena, civil investigative\ndemand or similar process, each a “Request”) to disclose any Confidential Information, you shall, promptly after receipt of such Request, provide\nwritten notice and a copy thereof to the Company, and you shall use reasonable efforts at the Company’s sole expense to provide the Company an\nopportunity to seek a protective order or other appropriate remedy (and you agree to cooperate with the Company at the Company’s sole expense\nin connection with seeking such order or other remedy). If such protective order or other remedy is not obtained, you agree to furnish, and permit\nyour Representatives to furnish, only that portion of the Confidential Information which you determine, after consultation with counsel, is legally\nrequired and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n4. The term “Confidential Information” does not include any information that at the time of disclosure to you or thereafter (a) was already\nin your possession at the time of disclosure, (b) is generally known by the public (other than as a result of its disclosure directly or indirectly by\nyou or your Representatives) or (c) is available to you on a non-confidential basis from a source other than the Company or its advisors, provided\nthat such source is not and was not bound by a confidentiality agreement or other legal duty of confidentiality regarding the Company or the\nConfidential Information.\n-\n5. Upon written request by the Company, you will promptly destroy or return to the Company all copies (in any form or medium) of the\nConfidential Information in your possession or control or in the possession or control of your Representatives. Notwithstanding the foregoing,\nyou and your Representatives (i) may retain copies of that portion of the Confidential Information that is required to be retained by applicable\nlaw or in accordance with your and your Representatives’ bona fide internal document retention policies that have been implemented in order to\ncomply with applicable law, regulation, professional standards or your and their reasonable existing business practice, and (ii) shall not be\nobligated to destroy electronically stored copies of the Confidential Information to the extent such destruction is not reasonably practicable;\nprovided that in all cases involving such retention or non-destruction of Confidential Information you shall maintain the confidentiality of such\nConfidential Information and you and your Representatives shall not disclose or use such Confidential Information (other than to the extent\nexplicitly permitted under this Agreement) for as long as this Agreement shall remain in effect.\n6. Without the prior written consent of the Company, you will not, and will direct your Representatives not to, disclose to any Person\n(a) the existence of any communications concerning the Transaction, or the existence of this Agreement or its provisions, (b) that you have\nrequested or received Confidential Information from the Company or its advisors, or (c) the possible occurrence of the Transaction or any of the\nterms, conditions or other facts about the Transaction, including the current status.\n7. Until the earlier of: (a) the consummation of the Transaction pursuant to a Transaction Agreement or (b) one year from the date of this\nAgreement, you agree that: (x) except with the express written consent of the Company’s designated representative, you will not, and you will\nnot knowingly encourage or participate with any other Person to, directly or indirectly, initiate or maintain contact (except for those contacts\nmade in the ordinary course of business) with any officer, director, employee, customer or supplier of the Company regarding the Confidential\nInformation or the Transaction; and (y) except with the express written consent of the Company, you will not, and you will not knowingly\nencourage or participate with any other Person to, directly or indirectly solicit or offer to hire or hire (i) any director or any of the following top 5\nofficers of the Company: Chief Executive Officer, Chief Financial Officer, President of Mid Continent, President of Starmark or President of\nUltraCraft, or (ii) any other employee of the Company whom you first come to know through evaluation and negotiations of the Transaction.\nUnless otherwise agreed to in writing by the Company, all communications regarding the Transaction, requests for additional information,\nrequests for facility tours or management meetings and discussions or questions regarding procedures, will be submitted or directed to the\nCompany’s designated representative.\n8. You hereby acknowledge and agree that you are aware, and that you will advise each of your Representatives to whom Confidential\nInformation is provided, that the U.S. securities laws prohibit any Person who has material non-public information concerning the matters which\nare the subject of this Agreement from purchasing or selling securities of the Company, or from communicating such material non-public\ninformation to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such\nsecurities.\n_3-\n9. You represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company. You\nagree that, for the period beginning on the date hereof and ending on the earlier of (A) the one-year anniversary hereof or (B) the date on which\nthe Company or the Security Holders (defined below) enter into a definitive agreement with a third party to engage in, or make a public\nannouncement with respect to, the acquisition, whether by stock or asset purchase, merger, tender offer or exchange offer or otherwise, of all or\nsubstantially all of the assets of the Company or a majority of the outstanding voting securities of the Company (the “Standstill Period”), neither\nyou nor your Representatives (acting on your behalf or at your direction) will, directly or indirectly, without the prior written consent of the board\nof directors of the Company, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any\nsecurities or assets of the Company, any warrant or option to purchase such securities or assets, any security convertible into any such securities,\nor any other right to acquire such securities or assets (other than purchases of products or services in the ordinary course of business), (ii) enter,\nagree to enter, or propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other\nextraordinary transaction involving the Company, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to\nadvise or influence any Person with respect to the voting of, any voting securities of the Company, (iv) form, join or in any way participate in a\n“group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any\nvoting securities of the Company, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the board of\ndirectors or shareholders of the Company, (vi) otherwise act, alone or in concert with others, to seek to control or influence the management or\nthe policies of the Company, (vii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, any of the foregoing, or\n(viii) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other Persons in connection\nwith any of the foregoing. You further agree that during the Standstill Period neither you nor your Representatives will, directly or indirectly,\nwithout the prior written consent of the board of directors of the Company, (x) make any request directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence), or (y) take any action that could reasonably be expected to require the Company to make a\npublic announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The\nforegoing shall not prohibit you from making a confidential proposal to the Company or any members of its Board of Directors, which it or he\nmay accept or reject in its or his sole discretion, so long as any such proposal is made in a manner that does not require public disclosure thereof\nby any person.\n10. You understand, acknowledge and agree that neither the Company nor any other Person who provides Confidential Information to you\npursuant to this Agreement (collectively, the “Disclosing Parties”) is making any representation or warranty, expressed or implied, as to the\naccuracy or completeness of the Confidential Information or of any other information concerning the Company, the Transaction, or any other\nmatter, in each case provided or prepared by or for the Disclosing Parties, and none of the Disclosing Parties will have any liability to you or any\nother Person resulting from or relating to your or their use of the Confidential Information or any of such other information. You agree that in\ndetermining to enter into and perform this Agreement you are not relying upon any representation, statement, promise, commitment,\nunderstanding or agreement made by or on behalf of the Company or any other Person, except as\n \n4-\nexpressly set forth herein. Only those representations or warranties that are expressly set forth in a Transaction Agreement when, as and if duly\nexecuted and delivered by all parties thereto, and subject to such limitations and restrictions as may be expressly agreed in such Transaction\nAgreement, shall have any legal effect.\n11. You understand and agree that (other than this Agreement) no contract, agreement or understanding with respect to the Transaction\nexists nor shall one be deemed to exist between you and the Company unless and until a Transaction Agreement has been duly executed and\ndelivered by all parties thereto. You also agree that neither the Company nor any Disclosing Party will have any obligation of any kind\nwhatsoever with respect to the Transaction by virtue of this Agreement or any other written or oral expression with respect to the Transaction\nexcept (i) in the case of this Agreement, for the matters specifically agreed to herein and (ii) upon execution of the Transaction Agreement to the\nextent expressly set forth therein. You further understand and agree that:\n(a) the Company shall have sole discretion in determining the process for the Transaction;\n(b) any procedures relating to the Transaction may be changed at any time without notice to you or any other Person; and\n(c) the Company may postpone or abandon its efforts to engage in the Transaction at any time without any notice to you.\n12. You understand, acknowledge and agree that any disclosure, use or misappropriation of any Confidential Information in violation of\nthis Agreement would cause the Company irreparable harm, the amount (but not the certainty) of which would be difficult to ascertain. You agree\nthat the Company, in addition to any other remedies available to it, shall be entitled to seek equitable relief, including temporary restraining\norders and preliminary and permanent injunctions, in the event of a breach by you or your Representatives (either actual or threatened) of this\nAgreement (without necessity of posting any bond or other security or proving special damages) and that you shall not oppose the granting of\nsuch relief.\n13. To the extent that any Confidential Information includes materials or other information that may be subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine providing immunity from disclosure, you acknowledge and agree that you\nand the Company have a commonality of legal interest with respect to such matters, and agree that it is your mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine providing immunity from disclosure. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine providing immunity from disclosure shall remain entitled to protection thereunder and shall be entitled to protection under the common\ninterest doctrine, and you agree to take all commercially reasonable measures to preserve, to the fullest extent possible, the applicability of all\nsuch privileges and doctrines, and you further agree that you will cooperate with the Company in efforts by it to preserve, to the fullest extent\npossible, the applicability of all such privileges and doctrines.\n-5-\n14. No provision of this Agreement can be waived or amended except by written consent of the Company. It is understood and agreed that\nno failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or\npartial exercise thereof preclude any other or further exercise thereof.\n15. You understand that the Company and the Company’s security holders (the “Security Holders) are represented in connection with the\nTransaction by Ropes & Gray LLP (“R&G”). If at any time you are or have been a client of R&G, you hereby irrevocably waive any conflicts\nthat may arise in connection with R&G representing the Company and the Security Holders in connection with the Transaction, and any conflicts\nthat may arise in connection with R&G representing the Security Holders after the closing of the Transaction (the “Closing”), including without\nlimitation in connection with any negotiation, arbitration, mediation, litigation or other proceeding in any way related to a dispute with you\nand/or the Company, on the one hand, and the Security Holders, on the other hand, even if your and the Company’s interests then would be\ndirectly adverse to those of the Security Holders in connection therewith. You represent and warrant that you have consulted with independent\ncounsel of your choosing before agreeing to this Agreement, including to this Section 15 and the waivers contained therein, and that such counsel\nhave explained to, and that you understand, the potential consequences of your agreement\n \n \n16. This Agreement is for the benefit of the Company and the other Disclosing Parties (and with respect to Section 15, R&G and the other\ncounsel referred to therein), and shall bind and inure to the benefit of the parties and their respective successors and assigns (provided, however,\nthat you may not assign this Agreement or any rights or obligations hereunder, without the Company’s prior written consent, failing which such\npurported assignment shall be null and void).\n17. This Agreement, and any action arising out of or relating to this Agreement, its negotiation, validity, performance or breach, or the\ntransactions contemplated hereby or the rights and obligations of the parties (whether sounding in contract, tort, statute or otherwise, and whether\nat law or in equity), shall be governed by and construed and enforced in accordance with the domestic substantive laws of the State of Delaware,\nwithout giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. You\nand the Company each irrevocably: (i) consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Wilmington,\nDelaware in any such action, (ii) agree that such courts are convenient forums for that purpose, and shall not seek to dismiss, transfer or remove\nsuch action to any other forum on grounds of lack of personal jurisdiction, improper venue, forum non conveniens or any similar doctrine,\n(iii) consent to service of process in any such action effected by delivery via nationally recognized overnight courier service, addressed to you or\nthe Company, as applicable, at such party’s address set forth above, in addition to any other method of service provided by applicable law,\n(iv) agree that such service of process shall be valid and (v) agree that such action shall be commenced and determined only in such courts.\nNotwithstanding the foregoing, actions or proceedings may be commenced in any jurisdiction to enforce or satisfy orders or judgments of such\ncourts.\n-6-\n18. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE,\nAND AGREE THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL\nBY JURY IN ANY ACTION DESCRIBED IN SECTION 17 HEREOF. THE PARTIES AGREE THAT EITHER OF THEM MAY FILE A\nCOPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-\nFOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY SUCH ACTION\nAND THAT ANY SUCH ACTION WILL INSTEAD BE TRIED BY A JUDGE SITTING WITHOUT A JURY.\n19. Your obligations under this Agreement, except: (i) the obligations with respect to any Confidential Information retained pursuant to\nSection 5 hereof, and (ii) as described in Sections 13, 14, 15, 16, 17 and 18 hereof and this Section 19, shall terminate two (2) years from the date\nhereof provided that such termination shall not relieve you of liability for breach by you or your Representatives prior to termination.\n20. Each party represents and warrants that this Agreement has been duly authorized, executed and delivered by it and constitutes a legal,\nvalid and binding obligation enforceable against such party in accordance with its terms.\n21. This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes any prior or\ncontemporaneous oral or written agreements or understandings with respect thereto.\n[Signature page follows]\n_7-\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this Agreement, which will constitute our agreement with respect to the subject matter of this Agreement.\nAccepted and Agreed To:\nFortune Brands Home & Security, Inc.\nBy: /s/ Robert K. Biggart\nName: Robert K. Biggart\nTitle:  Senior Vice President, General Counsel &\nSecretary\nVery truly yours,\nNorcraft Companies, Inc.\nBy:  /s/ Mark Buller\nName: Mark Buller\nTitle: CHAIRMAN & CEO	EX-99.(D)(2) 9 d907418dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 11,2014\nFortune Brands Home & Security, Inc.\n520 Lake Cook Road\nDeerfield, IL 60015\nLadies and Gentlemen:\nIn connection with your consideration of a possible negotiated transaction with Norcraft Companies, Inc. (together with its affiliates and\nsubsidiaries, the "Company.") (such possible transaction between the Company and you or your controlled affiliates being referred to herein as\nthe "Transaction"), you have requested non-public, confidential or proprietary information about the Company including, without limitation,\ninformation in any form or medium regarding the Company's current and prospective business, plans, forecasts, assets, liabilities, conditions,\naffairs, results, finances, strategies, products, services, technology, software, trade secrets, business processes, know-how, data, employees,\nagents,\ncustomers,\nlicensors\nand\nvendors,\n(all\nsuch\nfurnished\ninformation\nand\nall\nanalyses,\ncompilations,\ndata,\nstudies,\nsummaries,\nnotes,\ninterpretations, memoranda or other documents (in any form or medium) prepared by or for you or your Representatives (defined herein)\ncontaining or based in whole or in part on or reflecting any such furnished information, collectively, the "Confidential Information"). In\nconsideration of Confidential Information being furnished to you by or on behalf of the Company, you hereby agree as follows:\n1. The Confidential Information will be used by you and your directors, officers, employees, agents and advisors (collectively,\n"Representatives") solely for the purpose of evaluating the Transaction. Unless and until the Transaction has been consummated pursuant to\ndefinitive agreement (not including any executed letter of intent, any other preliminary written agreement or any written or oral acceptance of\nan\noffer or bid which you submit) (the "Transaction Agreement"), no portion of the Confidential Information will be disclosed by you to any other\nperson or entity, including, without limitation, the media (whether electronic, print, broadcast or other) or any corporation, company, partnership,\nlimited liability company, joint venture or individual (each, a "Person"), except to your Representatives who need to know such information\nsolely for the purpose of evaluating the Transaction. Prior to any disclosure of Confidential Information by you to any such Representatives, you\nwill inform them of the confidential nature of the Confidentia Information and direct them to abide by the terms of this agreement (the\n"Agreement"). You will use reasonable precautions, in any event no less rigorous than the precautions you take to protect your own confidential\ninformation, to safeguard the Confidential Information, and you will take reasonable measures to restrict access to the Confidential Information\nand prevent prohibited or unauthorized disclosure or use of the Confidential Information by your Representatives. You agree to be responsible for\nany breach of the terms of this Agreement by your Representatives. You hereby acknowledge and agree that all Confidential Information shall be\nand remain the exclusive property of the Company (or, as applicable, third Persons conducting business with the Company). You agree not to\nreproduce or\n-1-\ncopy by any means any Confidential Information without the Company's prior written consent, except as reasonably required for distribution to\nyour Representatives for purposes of evaluating the Transaction and not to reverse engineer or seek to reveal the trade secrets or know-how\nunderlying any software, technology or other embodiment of intellectual property within the Confidential Information. You represent and warrant\nthat in considering the Transaction and reviewing the Confidential Information, you are acting solely on your own behalf and not as part of a\ngroup with any unaffiliated parties. For the avoidance of doubt, your Representatives shall not, without the prior written consent of the Company,\ninclude any Person that is a customer, supplier or competitor of the Company, or any Person that serves as a director, officer, manager, member,\nagent or employee of any of the foregoing.\n2. You further agree that neither you nor any of your Representatives acting on your behalf will, without the prior written consent of the\nCompany, directly or indirectly, communicate regarding the Transaction with any potential co-investors or other sources of equity financing nor\ndisclose Confidential Information to any such Person. You hereby acknowledge and agree that the Company may grant or withhold its consent\nto\nany such communications with potential co-investors or other sources of equity financing for any reason (or for no reason) and the Company\nmay condition any such consent on such Persons' prior entry into a written confidentiality agreement in form and substance satisfactory to the\nCompany. Without the prior written consent of the Company, you agree that you will not, and will cause your Representatives acting on your\nbehalf not to, enter into any agreement, arrangement or other understanding, whether written or oral, that expressly limits, restricts, restrains\nor\notherwise impairs in any manner, directly or indirectly, the ability of any debt or equity financing source or other Person from providing\nfinancing or other assistance to any other Person (including the Company) with respect to the Transaction or any potential alternative thereto.\n3. If you or any of your Representatives becomes legally required (by deposition, notice, discovery request, subpoena, civil investigative\ndemand\nor similar process, each a "Request") to disclose any Confidential Information, you shall, promptly after receipt of such Request, provide\nwritten notice and a copy thereof to the Company, and you shall use reasonable efforts at the Company's sole expense to provide the Company an\nopportunity to seek a protective order or other appropriate remedy (and you agree to cooperate with the Company at the Company's sole expense\nin\nconnection with seeking such order or other remedy). If such protective order or other remedy is not obtained, you agree to furnish, and permit\nyour Representatives to furnish, only that portion of the Confidential Information which you determine, after consultation with counsel, is legally\nrequired and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n4. The term "Confidential Information" does not include any information that at the time of disclosure to you or thereafter (a) was already\nin your possession at the time of disclosure, (b) is generally known by the public (other than as a result of its disclosure directly or indirectly by\nyou or your Representatives) or (c) is available to you on a non-confidential basis from a source other than the Company or its advisors, provided\nthat such source is not and was not bound by a confidentiality agreement or other legal duty of confidentiality regarding the Company or the\nConfidential Information.\n-2-\n5. Upon written request by the Company, you will promptly destroy or return to the Company all copies (in any form or medium) of the\nConfidential Information in your possession or control or in the possession or control of your Representatives. Notwithstanding the foregoing,\nyou and your Representatives (i) may retain copies of that portion of the Confidential Information that is required to be retained by applicable\nlaw or in accordance with your and your Representatives' bona fide internal document retention policies that have been implemented in order to\ncomply with applicable law, regulation, professional standards or your and their reasonable existing business practice, and (ii) shall not be\nobligated to destroy electronically stored copies of the Confidential Information to the extent such destruction is not reasonably practicable;\nprovided that in all cases involving such retention or non-destruction of Confidential Information you shall maintain the confidentiality of such\nConfidential Information and you and your Representatives shall not disclose or use such Confidential Information (other than to the extent\nexplicitly permitted under this Agreement) for as long as this Agreement shall remain in effect.\n6. Without the prior written consent of the Company, you will not, and will direct your Representatives not to, disclose to any Person\n(a) the existence of any communications concerning the Transaction, or the existence of this Agreement or its provisions, (b) that you have\nrequested or received Confidential Information from the Company or its advisors, or (c) the possible occurrence of the Transaction or any of the\nterms, conditions or other facts about the Transaction, including the current status.\n7. Until the earlier of: (a) the consummation of the Transaction pursuant to a Transaction Agreement or (b) one year from the date of this\nAgreement, you agree that: (x) except with the express written consent of the Company's designated representative, you will not, and\nyou\nwill\nnot knowingly encourage or participate with any other Person to, directly or indirectly, initiate or maintain contact (except for those contacts\nmade in the ordinary course of business) with any officer, director, employee, customer or supplier of the Company regarding the Confidentia\nInformation or the Transaction; and (y) except with the express written consent of the Company, you will not, and you will not knowingly\nencourage or participate with any other Person to, directly or indirectly solicit or offer to hire or hire (i) any director or any of the following top\n5\nofficers of the Company: Chief Executive Officer, Chief Financial Officer, President of Mid Continent, President of Starmark or President of\nUltraCraft, or (ii) any other employee of the Company whom you first come to know through evaluation and negotiations of the Transaction.\nUnless otherwise agreed to in writing by the Company, all communications regarding the Transaction, requests for additional information,\nrequests for facility tours or management meetings and discussions or questions regarding procedures, will be submitted or directed to the\nCompany's designated representative.\n8. You hereby acknowledge and agree that you are aware, and that you will advise each of your Representatives to whom Confidentia\nInformation is provided, that the U.S. securities laws prohibit any Person who has material non-public information concerning the matters which\nare the subject of this Agreement from purchasing or selling securities of the Company, or from communicating such material non-public\ninformation to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such\nsecurities.\n-3-\n9. You represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company. You\nagree that, for the period beginning on the date hereof and ending on the earlier of (A) the one-year anniversary hereof or (B) the date on which\nthe Company or the Security Holders (defined below) enter into a definitive agreement with a third party to engage in, or make a public\nannouncement with respect to, the acquisition, whether by stock or asset purchase, merger, tender offer or exchange offer or otherwise, of all or\nsubstantially all of the assets of the Company or a majority of the outstanding voting securities of the Company (the "Standstill Period"), neither\nyou nor your Representatives (acting on your behalf or at your direction) will, directly or indirectly, without the prior written consent of the board\nof directors of the Company, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any\nsecurities or assets of the Company, any warrant or option to purchase such securities or assets, any security convertible into any such securities,\nor any other right to acquire such securities or assets (other than purchases of products or services in the ordinary course of business), (ii) enter,\nagree to enter, or propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other\nextraordinary transaction involving the Company, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to\nadvise or influence any Person with respect to the voting of, any voting securities of the Company, (iv) form, join or in any way participate\nin\na\n"group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) with respect to any\nvoting securities of the Company, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the board of\ndirectors or shareholders of the Company, (vi) otherwise act, alone or in concert with others, to seek to control or influence the management or\nthe policies of the Company, (vii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, any of the foregoing,\nor\n(viii) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other Persons in connection\nwith any of the foregoing. You further agree that during the Standstill Period neither you nor your Representatives will, directly or indirectly,\nwithout the prior written consent of the board of directors of the Company, (x) make any request directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence), or (y) take any action that could reasonably be expected to require the Company to make a\npublic announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The\nforegoing shall not prohibit you from making a confidential proposal to the Company or any members of its Board of Directors, which it or he\nmay accept or reject in its or his sole discretion, so long as any such proposal is made in a manner that does not require public disclosure thereof\nby any person.\n10. You understand, acknowledge and agree that neither the Company nor any other Person who provides Confidential Information to you\npursuant to this Agreement (collectively, the "Disclosing Parties") is making any representation or warranty, expressed or implied, as to the\naccuracy or completeness of the Confidential Information or of any other information concerning the Company, the Transaction, or any other\nmatter, in each case provided or prepared by or for the Disclosing Parties, and none of the Disclosing Parties will have any liability to you or any\nother Person resulting from or relating to your or their use of the Confidential Information or any of such other information. You agree that in\ndetermining to enter into and perform this Agreement you are not relying upon any representation, statement, promise, commitment,\nunderstanding or agreement made by or on behalf of the Company or any other Person, except as\n-4-\nexpressly set forth herein. Only those representations or warranties that are expressly set forth in a Transaction Agreement when, as and if duly\nexecuted and delivered by all parties thereto, and subject to such limitations and restrictions as may be expressly agreed in such Transaction\nAgreement, shall have any legal effect.\n11. You understand and agree that (other than this Agreement) no contract, agreement or understanding with respect to the Transaction\nexists nor shall one be deemed to exist between you and the Company unless and until a Transaction Agreement has been duly executed and\ndelivered by all parties thereto. You also agree that neither the Company nor any Disclosing Party will have any obligation of any kind\nwhatsoever with respect to the Transaction by virtue of this Agreement or any other written or oral expression with respect to the Transaction\nexcept (i) in the case of this Agreement, for the matters specifically agreed to herein and (ii) upon execution of the Transaction Agreement\nto\nthe\nextent expressly set forth therein. You further understand and agree that:\n(a) the Company shall have sole discretion in determining the process for the Transaction;\n(b) any procedures relating to the Transaction may be changed at any time without notice to you or any other Person; and\n(c) the Company may postpone or abandon its efforts to engage in the Transaction at any time without any notice to you.\n12. You understand, acknowledge and agree that any disclosure, use or misappropriation of any Confidential Information in violation of\nthis Agreement would cause the Company irreparable harm, the amount (but not the certainty) of which would be difficult to ascertain. You agree\nthat the Company, in addition to any other remedies available to it, shall be entitled to seek equitable relief, including temporary restraining\norders and preliminary and permanent injunctions, in the event of a breach by you or your Representatives (either actual or threatened) of this\nAgreement (without necessity of posting any bond or other security or proving special damages) and that you shall not oppose the granting\nof\nsuch relief.\n13. To the extent that any Confidential Information includes materials or other information that may be subject to attorney-client privilege,\nwork\nproduct\ndoctrine\nor\nany\nother\napplicable\nprivilege\nor\ndoctrine\nproviding\nimmunity\nfrom\ndisclosure,\nyou\nacknowledge\nand\nagree\nthat\nyou\nand the Company have a commonality of legal interest with respect to such matters, and agree that it is your mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine providing immunity from disclosure. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine providing immunity from disclosure shall remain entitled to protection thereunder and shall be entitled to protection under the common\ninterest doctrine, and you agree to take all commercially reasonable measures to preserve, to the fullest extent possible, the applicability of all\nsuch privileges and doctrines, and you further agree that you will cooperate with the Company in efforts by it to preserve, to the fullest extent\npossible, the applicability of all such privileges and doctrines.\n-5-\n14. No provision of this Agreement can be waived or amended except by written consent of the Company. It is understood and agreed that\nno failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single\nor\npartial exercise thereof preclude any other or further exercise thereof.\n15. You understand that the Company and the Company's security holders (the "Security Holders") are represented in connection with the\nTransaction by Ropes & Gray LLP ("R&G"). If at any time you are or have been a client of R&G, you hereby irrevocably waive any conflicts\nthat may arise in connection with R&G representing the Company and the Security Holders in connection with the Transaction, and any conflicts\nthat may arise in connection with R&G representing the Security Holders after the closing of the Transaction (the "Closing"), including without\nlimitation in connection with any negotiation, arbitration, mediation, litigation or other proceeding in any way related to a dispute with you\nand/or the Company, on the one hand, and the Security Holders, on the other hand, even if your and the Company's interests then would be\ndirectly adverse to those of the Security Holders in connection therewith. You represent and warrant that you have consulted with independent\ncounsel of your choosing before agreeing to this Agreement, including to this Section 15 and the waivers contained therein, and that such counsel\nhave explained to, and that you understand, the potential consequences of your agreement\n16. This Agreement is for the benefit of the Company and the other Disclosing Parties (and with respect to Section 15, R&G and the other\ncounsel referred to therein), and shall bind and inure to the benefit of the parties and their respective successors and assigns (provided, however,\nthat you may not assign this Agreement or any rights or obligations hereunder, without the Company's prior written consent, failing which\nsuch\npurported assignment shall be null and void).\n17. This Agreement, and any action arising out of or relating to this Agreement, its negotiation, validity, performance or breach, or the\ntransactions contemplated hereby or the rights and obligations of the parties (whether sounding in contract, tort, statute or otherwise, and whether\nat law or in equity), shall be governed by and construed and enforced in accordance with the domestic substantive laws of the State of Delaware,\nwithout giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.\nYou\nand the Company each irrevocably: (i) consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Wilmington,\nDelaware in any such action, (ii) agree that such courts are convenient forums for that purpose, and shall not seek to dismiss, transfer or remove\nsuch action to any other forum on grounds of lack of personal jurisdiction, improper venue, forum non conveniens or any similar doctrine,\n(iii) consent to service of process in any such action effected by delivery via nationally recognized overnight courier service, addressed to you\nor\nthe Company, as applicable, at such party's address set forth above, in addition to any other method of service provided by applicable law,\n(iv) agree that such service of process shall be valid and (v) agree that such action shall be commenced and determined only in such courts.\nNotwithstanding the foregoing, actions or proceedings may be commenced in any jurisdiction to enforce or satisfy orders or judgments of such\ncourts.\n-6-\n18. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE,\nAND AGREE THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL\nBY JURY IN ANY ACTION DESCRIBED IN SECTION 17 HEREOF. THE PARTIES AGREE THAT EITHER OF THEM MAY FILE A\nCOPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-\nFOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY SUCH ACTION\nAND THAT ANY SUCH ACTION WILL INSTEAD BE TRIED BY A JUDGE SITTING WITHOUT A JURY.\n19. Your obligations under this Agreement, except: (i) the obligations with respect to any Confidential Information retained pursuant to\nSection 5 hereof, and (ii) as described in Sections 13, 14, 15, 16, 17 and 18 hereof and this Section 19, shall terminate two (2) years from the date\nhereof provided that such termination shall not relieve you of liability for breach by you or your Representatives prior to termination.\n20. Each party represents and warrants that this Agreement has been duly authorized, executed and delivered by it and constitutes a legal,\nvalid and binding obligation enforceable against such party in accordance with its terms.\n21. This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes any prior\nor\ncontemporaneous oral or written agreements or understandings with respect thereto.\n[Signature page follows]\n-7-\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this Agreement, which will constitute our\nagreement with respect to the subject matter of this Agreement\nVery truly yours,\nNorcraft Companies, Inc.\nBy:\n/s/ Mark Buller\nName: Mark Buller\nTitle: CHAIRMAN & CEO\nAccepted and Agreed To:\nFortune Brands Home & Security, Inc.\nBy:\n/s/ Robert K. Biggart\nName: Robert K. Biggart\nTitle:\nSenior Vice President, General Counsel &\nSecretary\n-8-	EX-99.(D)(2) 9 d907418dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 11,2014\nFortune Brands Home & Security, Inc.\n520 Lake Cook Road\nDeerfield, IL 60015\nLadies and Gentlemen:\nIn connection with your consideration of a possible negotiated transaction with Norcraft Companies, Inc. (together with its affiliates and\nsubsidiaries, the “Company”) (such possible transaction between the Company and you or your controlled affiliates being referred to herein as\nthe “Transaction”), you have requested non-public, confidential or proprietary information about the Company including, without limitation,\ninformation in any form or medium regarding the Company’s current and prospective business, plans, forecasts, assets, liabilities, conditions,\naffairs, results, finances, strategies, products, services, technology, software, trade secrets, business processes, know-how, data, employees,\nagents, customers, licensors and vendors, (all such furnished information and all analyses, compilations, data, studies, summaries, notes,\ninterpretations, memoranda or other documents (in any form or medium) prepared by or for you or your Representatives (defined herein)\ncontaining or based in whole or in part on or reflecting any such furnished information, collectively, the “Confidential Information”). In\nconsideration of Confidential Information being furnished to you by or on behalf of the Company, you hereby agree as follows:\n1. The Confidential Information will be used by you and your directors, officers, employees, agents and advisors (collectively,\n“Representatives”) solely for the purpose of evaluating the Transaction. Unless and until the Transaction has been consummated pursuant to\ndefinitive agreement (not including any executed letter of intent, any other preliminary written agreement or any written or oral acceptance of an\noffer or bid which you submit) (the “Transaction Agreement”), no portion of the Confidential Information will be disclosed by you to any other\nperson or entity, including, without limitation, the media (whether electronic, print, broadcast or other) or any corporation, company, partnership,\nlimited liability company, joint venture or individual (each, a “Person”), except to your Representatives who need to know such information\nsolely for the purpose of evaluating the Transaction. Prior to any disclosure of Confidential Information by you to any such Representatives, you\nwill inform them of the confidential nature of the Confidential Information and direct them to abide by the terms of this agreement (the\n“Agreement”). You will use reasonable precautions, in any event no less rigorous than the precautions you take to protect your own confidential\ninformation, to safeguard the Confidential Information, and you will take reasonable measures to restrict access to the Confidential Information\nand prevent prohibited or unauthorized disclosure or use of the Confidential Information by your Representatives. You agree to be responsible for\nany breach of the terms of this Agreement by your Representatives. You hereby acknowledge and agree that all Confidential Information shall be\nand remain the exclusive property of the Company (or, as applicable, third Persons conducting business with the Company). You agree not to\nreproduce or\n-1-\ncopy by any means any Confidential Information without the Company’s prior written consent, except as reasonably required for distribution to\nyour Representatives for purposes of evaluating the Transaction and not to reverse engineer or seek to reveal the trade secrets or know-how\nunderlying any software, technology or other embodiment of intellectual property within the Confidential Information. You represent and warrant\nthat in considering the Transaction and reviewing the Confidential Information, you are acting solely on your own behalf and not as part of a\ngroup with any unaffiliated parties. For the avoidance of doubt, your Representatives shall not, without the prior written consent of the Company,\ninclude any Person that is a customer, supplier or competitor of the Company, or any Person that serves as a director, officer, manager, member,\nagent or employee of any of the foregoing.\n2. You further agree that neither you nor any of your Representatives acting on your behalf will, without the prior written consent of the\nCompany, directly or indirectly, communicate regarding the Transaction with any potential co-investors or other sources of equity financing nor\ndisclose Confidential Information to any such Person. You hereby acknowledge and agree that the Company may grant or withhold its consent to\nany such communications with potential co-investors or other sources of equity financing for any reason (or for no reason) and the Company\nmay condition any such consent on such Persons’ prior entry into a written confidentiality agreement in form and substance satisfactory to the\nCompany. Without the prior written consent of the Company, you agree that you will not, and will cause your Representatives acting on your\nbehalf not to, enter into any agreement, arrangement or other understanding, whether written or oral, that expressly limits, restricts, restrains or\notherwise impairs in any manner, directly or indirectly, the ability of any debt or equity financing source or other Person from providing\nfinancing or other assistance to any other Person (including the Company) with respect to the Transaction or any potential alternative thereto.\n3. If you or any of your Representatives becomes legally required (by deposition, notice, discovery request, subpoena, civil investigative\ndemand or similar process, each a “Request”) to disclose any Confidential Information, you shall, promptly after receipt of such Request, provide\nwritten notice and a copy thereof to the Company, and you shall use reasonable efforts at the Company’s sole expense to provide the Company an\nopportunity to seek a protective order or other appropriate remedy (and you agree to cooperate with the Company at the Company’s sole expense\nin connection with seeking such order or other remedy). If such protective order or other remedy is not obtained, you agree to furnish, and permit\nyour Representatives to furnish, only that portion of the Confidential Information which you determine, after consultation with counsel, is legally\nrequired and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n4. The term “Confidential Information” does not include any information that at the time of disclosure to you or thereafter (a) was already\nin your possession at the time of disclosure, (b) is generally known by the public (other than as a result of its disclosure directly or indirectly by\nyou or your Representatives) or (c) is available to you on a non-confidential basis from a source other than the Company or its advisors, provided\nthat such source is not and was not bound by a confidentiality agreement or other legal duty of confidentiality regarding the Company or the\nConfidential Information.\n-2-\n5. Upon written request by the Company, you will promptly destroy or return to the Company all copies (in any form or medium) of the\nConfidential Information in your possession or control or in the possession or control of your Representatives. Notwithstanding the foregoing,\nyou and your Representatives (i) may retain copies of that portion of the Confidential Information that is required to be retained by applicable\nlaw or in accordance with your and your Representatives’ bona fide internal document retention policies that have been implemented in order to\ncomply with applicable law, regulation, professional standards or your and their reasonable existing business practice, and (ii) shall not be\nobligated to destroy electronically stored copies of the Confidential Information to the extent such destruction is not reasonably practicable;\nprovided that in all cases involving such retention or non-destruction of Confidential Information you shall maintain the confidentiality of such\nConfidential Information and you and your Representatives shall not disclose or use such Confidential Information (other than to the extent\nexplicitly permitted under this Agreement) for as long as this Agreement shall remain in effect.\n6. Without the prior written consent of the Company, you will not, and will direct your Representatives not to, disclose to any Person\n(a) the existence of any communications concerning the Transaction, or the existence of this Agreement or its provisions, (b) that you have\nrequested or received Confidential Information from the Company or its advisors, or (c) the possible occurrence of the Transaction or any of the\nterms, conditions or other facts about the Transaction, including the current status.\n7. Until the earlier of: (a) the consummation of the Transaction pursuant to a Transaction Agreement or (b) one year from the date of this\nAgreement, you agree that: (x) except with the express written consent of the Company’s designated representative, you will not, and you will\nnot knowingly encourage or participate with any other Person to, directly or indirectly, initiate or maintain contact (except for those contacts\nmade in the ordinary course of business) with any officer, director, employee, customer or supplier of the Company regarding the Confidential\nInformation or the Transaction; and (y) except with the express written consent of the Company, you will not, and you will not knowingly\nencourage or participate with any other Person to, directly or indirectly solicit or offer to hire or hire (i) any director or any of the following top 5\nofficers of the Company: Chief Executive Officer, Chief Financial Officer, President of Mid Continent, President of Starmark or President of\nUltraCraft, or (ii) any other employee of the Company whom you first come to know through evaluation and negotiations of the Transaction.\nUnless otherwise agreed to in writing by the Company, all communications regarding the Transaction, requests for additional information,\nrequests for facility tours or management meetings and discussions or questions regarding procedures, will be submitted or directed to the\nCompany’s designated representative.\n8. You hereby acknowledge and agree that you are aware, and that you will advise each of your Representatives to whom Confidential\nInformation is provided, that the U.S. securities laws prohibit any Person who has material non-public information concerning the matters which\nare the subject of this Agreement from purchasing or selling securities of the Company, or from communicating such material non-public\ninformation to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such\nsecurities.\n-3-\n9. You represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company. You\nagree that, for the period beginning on the date hereof and ending on the earlier of (A) the one-year anniversary hereof or (B) the date on which\nthe Company or the Security Holders (defined below) enter into a definitive agreement with a third party to engage in, or make a public\nannouncement with respect to, the acquisition, whether by stock or asset purchase, merger, tender offer or exchange offer or otherwise, of all or\nsubstantially all of the assets of the Company or a majority of the outstanding voting securities of the Company (the “Standstill Period”), neither\nyou nor your Representatives (acting on your behalf or at your direction) will, directly or indirectly, without the prior written consent of the board\nof directors of the Company, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any\nsecurities or assets of the Company, any warrant or option to purchase such securities or assets, any security convertible into any such securities,\nor any other right to acquire such securities or assets (other than purchases of products or services in the ordinary course of business), (ii) enter,\nagree to enter, or propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other\nextraordinary transaction involving the Company, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to\nadvise or influence any Person with respect to the voting of, any voting securities of the Company, (iv) form, join or in any way participate in a\n“group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any\nvoting securities of the Company, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the board of\ndirectors or shareholders of the Company, (vi) otherwise act, alone or in concert with others, to seek to control or influence the management or\nthe policies of the Company, (vii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, any of the foregoing, or\n(viii) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other Persons in connection\nwith any of the foregoing. You further agree that during the Standstill Period neither you nor your Representatives will, directly or indirectly,\nwithout the prior written consent of the board of directors of the Company, (x) make any request directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence), or (y) take any action that could reasonably be expected to require the Company to make a\npublic announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The\nforegoing shall not prohibit you from making a confidential proposal to the Company or any members of its Board of Directors, which it or he\nmay accept or reject in its or his sole discretion, so long as any such proposal is made in a manner that does not require public disclosure thereof\nby any person.\n10. You understand, acknowledge and agree that neither the Company nor any other Person who provides Confidential Information to you\npursuant to this Agreement (collectively, the “Disclosing Parties”) is making any representation or warranty, expressed or implied, as to the\naccuracy or completeness of the Confidential Information or of any other information concerning the Company, the Transaction, or any other\nmatter, in each case provided or prepared by or for the Disclosing Parties, and none of the Disclosing Parties will have any liability to you or any\nother Person resulting from or relating to your or their use of the Confidential Information or any of such other information. You agree that in\ndetermining to enter into and perform this Agreement you are not relying upon any representation, statement, promise, commitment,\nunderstanding or agreement made by or on behalf of the Company or any other Person, except as\n-4-\nexpressly set forth herein. Only those representations or warranties that are expressly set forth in a Transaction Agreement when, as and if duly\nexecuted and delivered by all parties thereto, and subject to such limitations and restrictions as may be expressly agreed in such Transaction\nAgreement, shall have any legal effect.\n11. You understand and agree that (other than this Agreement) no contract, agreement or understanding with respect to the Transaction\nexists nor shall one be deemed to exist between you and the Company unless and until a Transaction Agreement has been duly executed and\ndelivered by all parties thereto. You also agree that neither the Company nor any Disclosing Party will have any obligation of any kind\nwhatsoever with respect to the Transaction by virtue of this Agreement or any other written or oral expression with respect to the Transaction\nexcept (i) in the case of this Agreement, for the matters specifically agreed to herein and (ii) upon execution of the Transaction Agreement to the\nextent expressly set forth therein. You further understand and agree that:\n(a) the Company shall have sole discretion in determining the process for the Transaction;\n(b) any procedures relating to the Transaction may be changed at any time without notice to you or any other Person; and\n(c) the Company may postpone or abandon its efforts to engage in the Transaction at any time without any notice to you.\n12. You understand, acknowledge and agree that any disclosure, use or misappropriation of any Confidential Information in violation of\nthis Agreement would cause the Company irreparable harm, the amount (but not the certainty) of which would be difficult to ascertain. You agree\nthat the Company, in addition to any other remedies available to it, shall be entitled to seek equitable relief, including temporary restraining\norders and preliminary and permanent injunctions, in the event of a breach by you or your Representatives (either actual or threatened) of this\nAgreement (without necessity of posting any bond or other security or proving special damages) and that you shall not oppose the granting of\nsuch relief.\n13. To the extent that any Confidential Information includes materials or other information that may be subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine providing immunity from disclosure, you acknowledge and agree that you\nand the Company have a commonality of legal interest with respect to such matters, and agree that it is your mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine providing immunity from disclosure. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine providing immunity from disclosure shall remain entitled to protection thereunder and shall be entitled to protection under the common\ninterest doctrine, and you agree to take all commercially reasonable measures to preserve, to the fullest extent possible, the applicability of all\nsuch privileges and doctrines, and you further agree that you will cooperate with the Company in efforts by it to preserve, to the fullest extent\npossible, the applicability of all such privileges and doctrines.\n-5-\n14. No provision of this Agreement can be waived or amended except by written consent of the Company. It is understood and agreed that\nno failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or\npartial exercise thereof preclude any other or further exercise thereof.\n15. You understand that the Company and the Company’s security holders (the “Security Holders”) are represented in connection with the\nTransaction by Ropes & Gray LLP (“R&G”). If at any time you are or have been a client of R&G, you hereby irrevocably waive any conflicts\nthat may arise in connection with R&G representing the Company and the Security Holders in connection with the Transaction, and any conflicts\nthat may arise in connection with R&G representing the Security Holders after the closing of the Transaction (the “Closing”), including without\nlimitation in connection with any negotiation, arbitration, mediation, litigation or other proceeding in any way related to a dispute with you\nand/or the Company, on the one hand, and the Security Holders, on the other hand, even if your and the Company’s interests then would be\ndirectly adverse to those of the Security Holders in connection therewith. You represent and warrant that you have consulted with independent\ncounsel of your choosing before agreeing to this Agreement, including to this Section 15 and the waivers contained therein, and that such counsel\nhave explained to, and that you understand, the potential consequences of your agreement\n16. This Agreement is for the benefit of the Company and the other Disclosing Parties (and with respect to Section 15, R&G and the other\ncounsel referred to therein), and shall bind and inure to the benefit of the parties and their respective successors and assigns (provided, however,\nthat you may not assign this Agreement or any rights or obligations hereunder, without the Company’s prior written consent, failing which such\npurported assignment shall be null and void).\n17. This Agreement, and any action arising out of or relating to this Agreement, its negotiation, validity, performance or breach, or the\ntransactions contemplated hereby or the rights and obligations of the parties (whether sounding in contract, tort, statute or otherwise, and whether\nat law or in equity), shall be governed by and construed and enforced in accordance with the domestic substantive laws of the State of Delaware,\nwithout giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. You\nand the Company each irrevocably: (i) consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Wilmington,\nDelaware in any such action, (ii) agree that such courts are convenient forums for that purpose, and shall not seek to dismiss, transfer or remove\nsuch action to any other forum on grounds of lack of personal jurisdiction, improper venue, forum non conveniens or any similar doctrine,\n(iii) consent to service of process in any such action effected by delivery via nationally recognized overnight courier service, addressed to you or\nthe Company, as applicable, at such party’s address set forth above, in addition to any other method of service provided by applicable law,\n(iv) agree that such service of process shall be valid and (v) agree that such action shall be commenced and determined only in such courts.\nNotwithstanding the foregoing, actions or proceedings may be commenced in any jurisdiction to enforce or satisfy orders or judgments of such\ncourts.\n-6-\n18. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE,\nAND AGREE THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL\nBY JURY IN ANY ACTION DESCRIBED IN SECTION 17 HEREOF. THE PARTIES AGREE THAT EITHER OF THEM MAY FILE A\nCOPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-\nFOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY SUCH ACTION\nAND THAT ANY SUCH ACTION WILL INSTEAD BE TRIED BY A JUDGE SITTING WITHOUT A JURY.\n19. Your obligations under this Agreement, except: (i) the obligations with respect to any Confidential Information retained pursuant to\nSection 5 hereof, and (ii) as described in Sections 13, 14, 15, 16, 17 and 18 hereof and this Section 19, shall terminate two (2) years from the date\nhereof provided that such termination shall not relieve you of liability for breach by you or your Representatives prior to termination.\n20. Each party represents and warrants that this Agreement has been duly authorized, executed and delivered by it and constitutes a legal,\nvalid and binding obligation enforceable against such party in accordance with its terms.\n21. This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes any prior or\ncontemporaneous oral or written agreements or understandings with respect thereto.\n[Signature page follows]\n-7-\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this Agreement, which will constitute our\nagreement with respect to the subject matter of this Agreement.\nVery truly yours,\nNorcraft Companies, Inc.\nBy: /s/ Mark Buller\nName: Mark Buller\nTitle: CHAIRMAN & CEO\nAccepted and Agreed To:\nFortune Brands Home & Security, Inc.\nBy: /s/ Robert K. Biggart\nName: Robert K. Biggart\nTitle: Senior Vice President, General Counsel &\nSecretary\n-8-
06bb89c0b34d24024ccfba76663bac8f.pdf	effective_date jurisdiction party term	EX-10.1 2 d338123dex101.htm FORM OF EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.1\nFORM OF\nEMPLOYEE NON-COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Employee Non-Competition and Confidentiality Agreement (“Agreement”) is made between REG MARKETING & LOGISTICS\nGROUP, LLC, an Iowa corporation (the “Employer”) and\n(“Employee”).\nRECITALS:\nA. The Employer and Employee are entering into or continuing an already existing “at will” employment relationship.\nB. The parties wish to set out certain further terms and conditions of Employee’s employment, whether with Employer, or an Affiliate of\nEmployer as defined hereafter (the Employer and its Affiliates herein collectively the “Company”), the parties recognizing that the Employee may at\ntimes be employed by an Affiliate of Employer.\nC. The Company’s special knowledge base, skills and competence in the biofuels and renewable chemicals industries are critical to its growth.\nD. The Company’s growth and competitiveness in the biofuels and renewable chemicals industries depend on its exclusive possession of, and\nthe non-public nature of, its “Confidential Information” (as hereinafter defined).\nE. The Company is engaged in research, development, procurement, sales, marketing, transportation and production of biofuels and renewable\nchemicals, feedstocks therefore and by-products thereof, and the ownership, lease, acquisition, financing, construction and operation of biofuels and\nrenewable chemicals facilities, both nationally and internationally (the “Biofuels/Renewable Chemicals Business”).\nNOW, THEREFORE, in consideration of such future or continuing employment relationship, and the agreements contained herein, and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:\n1. Covenant Not To Compete. Employee shall not, during Employee’s employment with the Company and for twenty-four (24) months thereafter,\nwithout the prior written consent of the Company, directly or indirectly, own (other than passive investments in publicly traded companies where\nsuch investment does not exceed more than one percent (1%) of the total outstanding shares or other equity interests of such company), manage,\noperate, control, be employed by, participate in, advise or be connected in any manner with the ownership, management, operation or control of a\nCompeting Business. The covenants of Employee contained in this paragraph 1 shall apply to each State and Country in which the Company, either\ndirectly or indirectly through Employer or an Affiliate of Employer, conducted its business or otherwise offered any goods, products\nor services related to its business, which shall include all States in the United States of America, which Employee represents and warrants is the\nminimum geographical area in which the Company is presently operating and intending to operate.\nCompeting Business is defined as a business engaged in the manufacture, development, sale, or marketing of biodiesel or renewable diesel or any\nother product or service (a) actively manufactured, developed, sold, or marketed by the Company during Employee’s employment period, so long as\nit remains so manufactured, developed, sold, or marketed by the Company or (b) which the Company has taken, and continues to take, substantial\nsteps to prepare to test, manufacture, research, develop, fund, sell, market or otherwise target or pursue as a special project or initiative in which the\nEmployee had direct or indirect managerial or supervisory responsibility, as of the Employee’s termination date. For the avoidance of doubt,\nemployment with, or other provision of services to, an entity or other person that engages in a Competing Business shall not constitute the\nengagement by Employee in a Competing Business so long as Employee is not involved in activities constituting, and does not in any way assist or\nadvise, directly or indirectly, a Competing Business.\n2. Employees, Customers, Suppliers, Etc. Employee shall not for a period of twenty-four (24) months after Employee’s employment with the\nCompany ceases, in any manner, directly or indirectly, solicit the services or employment or engage the services or employ anyone who is then (or\nwho was within the six months prior thereto) an employee of the Company or, in connection with a Competing Business, contact or solicit any of the\nCompany’s then past, present or identified potential customers, suppliers or strategic partners or any such customer, supplier, or strategic partner of\nany facility managed by the Company.\n3. Confidential Information. Employee shall not during or after Employee’s employment with the Company, in any manner, directly or indirectly,\nuse or disclose to any third party any Confidential Information except as required in the course of performance of Employee’s employment with the\nCompany and as authorized by the Company in writing. For purposes of this Agreement, the terms “Confidential Information” shall be deemed to\ninclude, but not limited to, trade secrets, proprietary information, research and data, operating and marketing information, techniques and\nprocedures, customer lists, employee lists, supplier lists, training manuals and procedures, business plans, projections and strategies, pricing\ninformation and financial reports of the Company or any of its predecessors, West Central Cooperative, REG, LLC (fka Renewable Energy Group,\nLLC) and InterWest, L.C. (the “Predecessors”), in any form, which are not generally known to the public.\n4. Creations. Employee acknowledges that Employee may conceive of or otherwise create ideas, inventions, original works of authorship, product\ndesigns, logos, brand names, trade or service marks, and/or other similar or related items during the course of Employee’s employment\n(“Creations”). To the extent that any such Creations relate to the Company’s or Predecessors’ business or their customers or customer’s business,\nEmployee hereby assigns to the Company all rights, titles and interests in any such Creations, including, without limitation, all patent, trade secret,\ntrademark, service mark, trade dress, copyright and other intellectual property and similar or related rights.\n2\nDuring the term of Employee’s employment by the Company and for the period of one (1) year following termination of employment by\nEmployer and any of its Affiliates with or without cause, employee shall promptly disclose in writing to the Company all such intellectual property\nand other similar or related rights conceived or made by Employee, either solely or in concert with others.\nEmployee shall, at the Company’s request and expense, execute specific assignments to any and all such intellectual property and other similar\nor related rights and execute, acknowledge and deliver such other documents and take all such further action as may be requested by the Company, at\nany time during or subsequent to the period of Employee’s employment with the Company, to obtain, procure, prosecute, transfer, assign, enforce, or\ndefend any and all national or international intellectual property and/or other similar or related rights assigned hereby to the Company.\n5. Scope; Injunction. Employee agrees that the covenants contained in this Agreement are reasonable in scope, area and duration and are necessary\nin furtherance of the legitimate interests of the Company in protecting its business. Employee represents and warrants that Employee has available to\nEmployee sufficient other means of support and that observance of the covenants contained in this paragraph will not deprive Employee of the\nability to earn a livelihood or to support Employee’s dependents. In the event of the breach of this Agreement, Employee acknowledges and agrees\nthat irreparable injury will result to the Company and that injunctive relief to restrain the violation of this Agreement is appropriate in addition to any\nother remedies to which the Company may be entitled at law or in equity, all remedies being cumulative and not exclusive. In addition, Employee\nshall defend, indemnify and hold the Company and its directors, officers, shareholders, employees and agents, harmless from and against any claim,\ndemand, proceeding, loss, liability, damage, cost or expense, including court costs and attorneys’ fees, arising in connection with or resulting from\nany breach of warranty, misrepresentation or nonfulfillment of any agreement on the part of Employee under this Agreement whether that claim,\ndemand or proceeding is brought by the Employer, an Affiliate of Employer or a third party.\n6. No Guarantee of Employment. This Agreement does not confer upon Employee any rights to continue in the employ or service of the Company.\nExcept as may be provided in a separate written agreement, Employee’s employment with or service for the Company is “at will” and Company or\nEmployee may terminate Employee’s employment at any time, for any reason or no reason, with or without cause or notice.\n7. Salary Continuation. In the event of the termination by the Company of Employee’s employment with the Company without “cause” (as defined\nin the Company’s Amended and Restated 2009 Stock Incentive Plan, as such plan may be further amended from time to time, or any successor\nthereto), the Company shall continue to pay Employee’s base compensation at the rate in effect upon termination in accordance with\n3\nthe Company’s normal payroll practices (the “Salary Continuation”) until terminated by the Company upon at least thirty (30) days prior written\nnotice to Employee; provided, however, Employee’s obligations in paragraphs 1 and 2 hereof shall terminate effective upon the termination date of\nthe Salary Continuation; and, provided further, the Salary Continuation shall in no event continue beyond twenty-four (24) months after termination\nof Employee’s employment. In addition, as part of any such Salary Continuation, Company agrees to provide or reimburse Employee for up to\n$7,500 of job outplacement services during the twelve (12) month period following termination of employment.\n8. Change of Employer. Employee acknowledges that in the event Employee’s employment changes from Employer to an Affiliate of Employer,\nthat such change of employment shall be considered to be an assignment of this Agreement to such new employer, consented to by Employee\nwithout further action on Employee’s part. Employee acknowledges that the Employer and any Affiliate of Employer subsequently employing\nEmployee shall have the right to enforce any rights hereunder. Actions which may be taken by the Company hereunder may be exercised by the\nPresident of the Employer (or of any Affiliate of Employer subsequently employing the Employee).\n9. Miscellaneous. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matters hereof, and\nsupersedes all negotiations, preliminary agreements and all prior and contemporaneous discussions and understandings of the parties in connection\nwith the subject matters hereof. No amendment, waiver, change or modification of any of the terms, provisions or conditions of this Agreement shall\nbe effective unless made in writing and signed or initialed by each of the parties hereto. Waiver of any provision of this Agreement shall not be\ndeemed a waiver of future compliance therewith and such provision shall remain in full force and effect. In the event any provision of this\nAgreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and\nshall continue to be valid and enforceable. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal or unenforceable as\nwritten, but that by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written and shall\nbe construed and enforced as so limited. In addition, in the event a court determines any provision of this Agreement unenforceable under the laws of\nits jurisdiction, this Agreement shall not be deemed unenforceable under the laws and regulations of any other jurisdiction. This Agreement shall be\ngoverned by and construed in accordance with the laws of the state of Iowa without regard to conflicts of laws principles. Each of the parties hereby\nirrevocably submits to the exclusive jurisdiction of any United States Federal court sitting in Iowa in any action or proceeding arising out of or\nrelating to this Agreement or any agreement, document or instrument contemplated hereby, and each party hereby irrevocably agrees that all claims\nand counterclaims in respect of such action or proceeding may be heard and determined in any such United States Federal court. Each of the parties\nirrevocably waives any objection, including without limitation, any objection to the laying of venue or based on the grounds of forum non\nconveniens, which it may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. Each of the parties\nirrevocably consents to the service of any and all process in any such action or proceeding brought in any court in or of the\n4\nState of Iowa by the delivery of copies of such process to each party at its address specified herein or by certified mail directed to such address.\nWords and phrases herein shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to the\ncontext. The titles or captions of paragraphs of this Agreement are provided for convenience of reference only and shall not be considered a part\nhereof for purposes of interpreting or applying this Agreement and such titles or captions do not define, limit, extend, explain or describe the\nmeaning, scope or extent of this Agreement or any of its terms or conditions. This Agreement shall be binding upon and inure to the benefit of the\nparties hereto and their respective legal representatives, heirs, successors and assigns. Nothing in this Agreement, express or implied, is intended to\nconfer upon any party, other than the Employee, Employer and Employer’s Affiliates who may subsequently employ Employee (and their respective\nheirs, legal representatives, successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. This\nAgreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one\nand the same instrument, and in making proof hereof, it shall not be necessary to produce or account for more than one such counterpart.\n“Affiliate” means, for purposes of this Agreement, Renewable Energy Group, Inc. (if not the Employer), and any corporation, limited liability\ncompany or other entity directly or indirectly controlled by, or under common control with, Renewable Energy Group, Inc. as of the date on which,\nor at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control”\n(including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any entity, means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management policies of such entity, whether through the\nownership of voting securities or by contract or otherwise.\n10. Section 409A. Anything in this Agreement to the contrary notwithstanding:\n(a) This section is intended to help ensure that compensation to Employee pursuant to this Agreement either is paid in compliance with, or is\nexempt from, Section 409A of the Internal Revenue Code of 1986, as amended and the rules and regulations promulgated thereunder (collectively,\n“Section 409A”). For the purposes of determining when amounts otherwise payable on account of Employee’s termination of employment under this\nAgreement will be paid, which amounts become due because of Employee’s termination of employment, “termination of employment” or words of\nsimilar import, as used in this Agreement, shall be construed as the date that the Employee first incurs a “separation from service” for purposes of\nSection 409A on or following termination of employment.\n(b) If at the time of Employee’s separation from service within the meaning of Section 409A, Employee is a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) and if any payment that Employee becomes entitled to under this Agreement is considered deferred\ncompensation subject to Section 409A(a), then no such payment shall be payable prior to the date that is the earlier of (i) six months and\n5\none day after Employee’s date of termination, and (ii) Employee’s death, and the initial Payment shall include a catch-up amount covering amounts\nthat would otherwise have been paid during the first six-month period but for the application of this Section 10. For purposes of the application of\nSection 409A, each Salary Continuation payment under Section 7 shall constitute a separate payment.\n(c) The parties intend that this Agreement will be administered in accordance with Section 409A. The parties agree that this Agreement may be\namended, as reasonably requested by either party, as may be necessary to fully comply with Section 409A in order to preserve the payments\nprovided hereunder, without additional cost to either party.\nIN WITNESS WHEREOF, the Employer and Employee have executed this Agreement on the dates set forth below their respective signatures.\nREG MARKETING & LOGISTICS GROUP, LLC\nEMPLOYEE\nBy\nDated:\nDated:\n6	EX-10.1 2 d338123dex101.htm FORM OF EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.1\nFORM OF\nEMPLOYEE NON-COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Employee Non-Competition and Confidentiality Agreement (“Agreement”) is made between REG MARKETING & LOGISTICS\nGROUP, LLC, an Iowa corporation (the “Employer”) and (“Employee”).\nRECITALS:\nA. The Employer and Employee are entering into or continuing an already existing “at will” employment relationship.\nB. The parties wish to set out certain further terms and conditions of Employee’s employment, whether with Employer, or an Affiliate of\nEmployer as defined hereafter (the Employer and its Affiliates herein collectively the “Company”), the parties recognizing that the Employee may at\ntimes be employed by an Affiliate of Employer.\nC. The Company’s special knowledge base, skills and competence in the biofuels and renewable chemicals industries are critical to its growth.\nD. The Company’s growth and competitiveness in the biofuels and renewable chemicals industries depend on its exclusive possession of, and\nthe non-public nature of, its “Confidential Information” (as hereinafter defined).\nE. The Company is engaged in research, development, procurement, sales, marketing, transportation and production of biofuels and renewable\nchemicals, feedstocks therefore and by-products thereof, and the ownership, lease, acquisition, financing, construction and operation of biofuels and\nrenewable chemicals facilities, both nationally and internationally (the “Biofuels/Renewable Chemicals Business™).\nNOW, THEREFORE, in consideration of such future or continuing employment relationship, and the agreements contained herein, and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:\n1. Covenant Not To Compete. Employee shall not, during Employee’s employment with the Company and for twenty-four (24) months thereafter,\nwithout the prior written consent of the Company, directly or indirectly, own (other than passive investments in publicly traded companies where\nsuch investment does not exceed more than one percent (1%) of the total outstanding shares or other equity interests of such company), manage,\noperate, control, be employed by, participate in, advise or be connected in any manner with the ownership, management, operation or control of a\nCompeting Business. The covenants of Employee contained in this paragraph 1 shall apply to each State and Country in which the Company, either\ndirectly or indirectly through Employer or an Affiliate of Employer, conducted its business or otherwise offered any goods, products\nor services related to its business, which shall include all States in the United States of America, which Employee represents and warrants is the\nminimum geographical area in which the Company is presently operating and intending to operate.\nCompeting Business is defined as a business engaged in the manufacture, development, sale, or marketing of biodiesel or renewable diesel or any\nother product or service (a) actively manufactured, developed, sold, or marketed by the Company during Employee’s employment period, so long as\nit remains so manufactured, developed, sold, or marketed by the Company or (b) which the Company has taken, and continues to take, substantial\nsteps to prepare to test, manufacture, research, develop, fund, sell, market or otherwise target or pursue as a special project or initiative in which the\nEmployee had direct or indirect managerial or supervisory responsibility, as of the Employee’s termination date. For the avoidance of doubt,\nemployment with, or other provision of services to, an entity or other person that engages in a Competing Business shall not constitute the\nengagement by Employee in a Competing Business so long as Employee is not involved in activities constituting, and does not in any way assist or\nadvise, directly or indirectly, a Competing Business.\nCompany ceases, in any manner, directly or indirectly, solicit the services or employment or engage the services or employ anyone who is then (or\nwho was within the six months prior thereto) an employee of the Company or, in connection with a Competing Business, contact or solicit any of the\nCompany’s then past, present or identified potential customers, suppliers or strategic partners or any such customer, supplier, or strategic partner of\nany facility managed by the Company.\n3. Confidential Information. Employee shall not during or after Employee’s employment with the Company, in any manner, directly or indirectly,\nuse or disclose to any third party any Confidential Information except as required in the course of performance of Employee’s employment with the\nCompany and as authorized by the Company in writing. For purposes of this Agreement, the terms “Confidential Information” shall be deemed to\ninclude, but not limited to, trade secrets, proprietary information, research and data, operating and marketing information, techniques and\nprocedures, customer lists, employee lists, supplier lists, training manuals and procedures, business plans, projections and strategies, pricing\ninformation and financial reports of the Company or any of its predecessors, West Central Cooperative, REG, LLC (fka Renewable Energy Group,\nLLC) and InterWest, L.C. (the “Predecessors™), in any form, which are not generally known to the public.\n4. Creations. Employee acknowledges that Employee may conceive of or otherwise create ideas, inventions, original works of authorship, product\ndesigns, logos, brand names, trade or service marks, and/or other similar or related items during the course of Employee’s employment\n(“Creations”). To the extent that any such Creations relate to the Company’s or Predecessors’ business or their customers or customer’s business,\nEmployee hereby assigns to the Company all rights, titles and interests in any such Creations, including, without limitation, all patent, trade secret,\ntrademark, service mark, trade dress, copyright and other intellectual property and similar or related rights.\n2\nDuring the term of Employee’s employment by the Company and for the period of one (1) year following termination of employment by\nEmployer and any of its Affiliates with or without cause, employee shall promptly disclose in writing to the Company all such intellectual property\nand other similar or related rights conceived or made by Employee, either solely or in concert with others.\nEmployee shall, at the Company’s request and expense, execute specific assignments to any and all such intellectual property and other similar\nor related rights and execute, acknowledge and deliver such other documents and take all such further action as may be requested by the Company, at\nany time during or subsequent to the period of Employee’s employment with the Company, to obtain, procure, prosecute, transfer, assign, enforce, or\ndefend any and all national or international intellectual property and/or other similar or related rights assigned hereby to the Company.\n \n5. Scope; Injunction. Employee agrees that the covenants contained in this Agreement are reasonable in scope, area and duration and are necessary\nin furtherance of the legitimate interests of the Company in protecting its business. Employee represents and warrants that Employee has available to\nEmployee sufficient other means of support and that observance of the covenants contained in this paragraph will not deprive Employee of the\nability to earn a livelihood or to support Employee’s dependents. In the event of the breach of this Agreement, Employee acknowledges and agrees\nthat irreparable injury will result to the Company and that injunctive relief to restrain the violation of this Agreement is appropriate in addition to any\nother remedies to which the Company may be entitled at law or in equity, all remedies being cumulative and not exclusive. In addition, Employee\nshall defend, indemnify and hold the Company and its directors, officers, shareholders, employees and agents, harmless from and against any claim,\ndemand, proceeding, loss, liability, damage, cost or expense, including court costs and attorneys’ fees, arising in connection with or resulting from\nany breach of warranty, misrepresentation or nonfulfillment of any agreement on the part of Employee under this Agreement whether that claim,\ndemand or proceeding is brought by the Employer, an Affiliate of Employer or a third party.\n6. No Guarantee of Employment. This Agreement does not confer upon Employee any rights to continue in the employ or service of the Company.\nExcept as may be provided in a separate written agreement, Employee’s employment with or service for the Company is “at will” and Company or\nEmployee may terminate Employee’s employment at any time, for any reason or no reason, with or without cause or notice.\n7. Salary Continuation. In the event of the termination by the Company of Employee’s employment with the Company without “cause” (as defined\nin the Company’s Amended and Restated 2009 Stock Incentive Plan, as such plan may be further amended from time to time, or any successor\nthereto), the Company shall continue to pay Employee’s base compensation at the rate in effect upon termination in accordance with\n3\nthe Company’s normal payroll practices (the “Salary Continuation”) until terminated by the Company upon at least thirty (30) days prior written\nnotice to Employee; provided, however, Employee’s obligations in paragraphs 1 and 2 hereof shall terminate effective upon the termination date of\nthe Salary Continuation; and, provided further, the Salary Continuation shall in no event continue beyond twenty-four (24) months after termination\nof Employee’s employment. In addition, as part of any such Salary Continuation, Company agrees to provide or reimburse Employee for up to\n$7,500 of job outplacement services during the twelve (12) month period following termination of employment.\n8. Change of Employer. Employee acknowledges that in the event Employee’s employment changes from Employer to an Affiliate of Employer,\nthat such change of employment shall be considered to be an assignment of this Agreement to such new employer, consented to by Employee\nwithout further action on Employee’s part. Employee acknowledges that the Employer and any Affiliate of Employer subsequently employing\nEmployee shall have the right to enforce any rights hereunder. Actions which may be taken by the Company hereunder may be exercised by the\nPresident of the Employer (or of any Affiliate of Employer subsequently employing the Employee).\n9. Miscellaneous. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matters hereof, and\nsupersedes all negotiations, preliminary agreements and all prior and contemporaneous discussions and understandings of the parties in connection\nwith the subject matters hereof. No amendment, waiver, change or modification of any of the terms, provisions or conditions of this Agreement shall\nbe effective unless made in writing and signed or initialed by each of the parties hereto. Waiver of any provision of this Agreement shall not be\ndeemed a waiver of future compliance therewith and such provision shall remain in full force and effect. In the event any provision of this\nAgreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and\nshall continue to be valid and enforceable. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal or unenforceable as\nwritten, but that by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written and shall\nbe construed and enforced as so limited. In addition, in the event a court determines any provision of this Agreement unenforceable under the laws of\nits jurisdiction, this Agreement shall not be deemed unenforceable under the laws and regulations of any other jurisdiction. This Agreement shall be\ngoverned by and construed in accordance with the laws of the state of Iowa without regard to conflicts of laws principles. Each of the parties hereby\nirrevocably submits to the exclusive jurisdiction of any United States Federal court sitting in Iowa in any action or proceeding arising out of or\nrelating to this Agreement or any agreement, document or instrument contemplated hereby, and each party hereby irrevocably agrees that all claims\nand counterclaims in respect of such action or proceeding may be heard and determined in any such United States Federal court. Each of the parties\nirrevocably waives any objection, including without limitation, any objection to the laying of venue or based on the grounds of forum non\nconveniens, which it may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. Each of the parties\nirrevocably consents to the service of any and all process in any such action or proceeding brought in any court in or of the\n4\nState of Iowa by the delivery of copies of such process to each party at its address specified herein or by certified mail directed to such address.\nWords and phrases herein shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to the\ncontext. The titles or captions of paragraphs of this Agreement are provided for convenience of reference only and shall not be considered a part\nhereof for purposes of interpreting or applying this Agreement and such titles or captions do not define, limit, extend, explain or describe the\nmeaning, scope or extent of this Agreement or any of its terms or conditions. This Agreement shall be binding upon and inure to the benefit of the\nparties hereto and their respective legal representatives, heirs, successors and assigns. Nothing in this Agreement, express or implied, is intended to\nconfer upon any party, other than the Employee, Employer and Employer’s Affiliates who may subsequently employ Employee (and their respective\nheirs, legal representatives, successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. This\nAgreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one\nand the same instrument, and in making proof hereof, it shall not be necessary to produce or account for more than one such counterpart.\n“Affiliate” means, for purposes of this Agreement, Renewable Energy Group, Inc. (if not the Employer), and any corporation, limited liability\ncompany or other entity directly or indirectly controlled by, or under common control with, Renewable Energy Group, Inc. as of the date on which,\nor at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control”\n(including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any entity, means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management policies of such entity, whether through the\nownership of voting securities or by contract or otherwise.\n10. Section 409A. Anything in this Agreement to the contrary notwithstanding:\n(a) This section is intended to help ensure that compensation to Employee pursuant to this Agreement either is paid in compliance with, or is\nexempt from, Section 409A of the Internal Revenue Code of 1986, as amended and the rules and regulations promulgated thereunder (collectively,\n“Section 409A”). For the purposes of determining when amounts otherwise payable on account of Employee’s termination of employment under this\nAgreement will be paid, which amounts become due because of Employee’s termination of employment, “termination of employment” or words of\nsimilar import, as used in this Agreement, shall be construed as the date that the Employee first incurs a “separation from service” for purposes of\nSection 409A on or following termination of employment.\n(b) If at the time of Employee’s separation from service within the meaning of Section 409A, Employee is a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) and if any payment that Employee becomes entitled to under this Agreement is considered deferred\ncompensation subject to Section 409A(a), then no such payment shall be payable prior to the date that is the earlier of (i) six months and\n5\none day after Employee’s date of termination, and (ii) Employee’s death, and the initial Payment shall include a catch-up amount covering amounts\nthat would otherwise have been paid during the first six-month period but for the application of this Section 10. For purposes of the application of\nSection 409A, each Salary Continuation payment under Section 7 shall constitute a separate payment.\n(c) The parties intend that this Agreement will be administered in accordance with Section 409A. The parties agree that this Agreement may be\namended, as reasonably requested by either party, as may be necessary to fully comply with Section 409A in order to preserve the payments\nprovided hereunder, without additional cost to either party.\nIN WITNESS WHEREOF, the Employer and Employee have executed this Agreement on the dates set forth below their respective signatures.\nREG MARKETING & LOGISTICS GROUP, L1LC EMPLOYEE\nBy\nDated: Dated:	EX-10.1 2 d338123dex101.htm FORM OF EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.1\nFORM OF\nEMPLOYEE NON-COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Employee Non-Competition and Confidentiality Agreement ("Agreement") is made between REG MARKETING & LOGISTICS\nGROUP, LLC, an Iowa corporation (the "Employer") and\n("Employee").\nRECITALS:\nA. The Employer and Employee are entering into or continuing an already existing "at will" employment relationship.\nB. The parties wish to set out certain further terms and conditions of Employee's employment, whether with Employer, or an Affiliate of\nEmployer as defined hereafter (the Employer and its Affiliates herein collectively the "Company"), the parties recognizing that the Employee may at\ntimes be employed by an Affiliate of Employer.\nC. The Company's special knowledge base, skills and competence in the biofuels and renewable chemicals industries are critical to its growth.\nD. The Company's growth and competitiveness in the biofuels and renewable chemicals industries depend on its exclusive possession of, and\nthe non-public nature of, its "Confidential Information" (as hereinafter defined).\nE. The Company is engaged in research, development, procurement, sales, marketing, transportation and production of biofuels and renewable\nchemicals, feedstocks therefore and by-products thereof, and the ownership, lease, acquisition, financing, construction and operation of biofuels and\nrenewable chemicals facilities, both nationally and internationally (the "Biofuels/Renewable Chemicals Business").\nNOW, THEREFORE, in consideration of such future or continuing employment relationship, and the agreements contained herein, and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:\n1. Covenant Not To Compete. Employee shall not, during Employee's employment with the Company and for twenty-four (24) months thereafter,\nwithout the prior written consent of the Company, directly or indirectly, own (other than passive investments in publicly traded companies where\nsuch\ninvestment does not exceed more than one percent (1%) of the total outstanding shares or other equity interests of such company), manage,\noperate, control, be employed by, participate in, advise or be connected in any manner with the ownership, management, operation or control of a\nCompeting Business. The covenants of Employee contained in this paragraph 1 shall apply to each State and Country in which the Company, either\ndirectly or indirectly through Employer or an Affiliate of Employer, conducted its business or otherwise offered any goods, products\nor services related to its business, which shall include all States in the United States of America, which Employee represents and warrants is the\nminimum geographical area in which the Company is presently operating and intending to operate.\nCompeting Business is defined as a business engaged in the manufacture, development, sale, or marketing of biodiesel or renewable diesel or\nany\nother product or service (a) actively manufactured, developed, sold, or marketed by the Company during Employee's employment period, so long\nas\nit remains so manufactured, developed, sold, or marketed by the Company or (b) which the Company has taken, and continues to take, substantial\nsteps to prepare to test, manufacture, research, develop, fund, sell, market or otherwise target or pursue as a special project or initiative in which the\nEmployee had direct or indirect managerial or supervisory responsibility, as of the Employee's termination date. For the avoidance of doubt,\nemployment with, or other provision of services to, an entity or other person that engages in a Competing Business shall not constitute the\nengagement by Employee in a Competing Business so long as Employee is not involved in activities constituting, and does not in any way assist or\nadvise, directly or indirectly, a Competing Business.\n2. Employees, Customers, Suppliers, Etc. Employee shall not for a period of twenty-four (24) months after Employee's employment with the\nCompany ceases, in any manner, directly or indirectly, solicit the services or employment or engage the services or employ anyone who is then (or\nwho was within the six months prior thereto) an employee of the Company or, in connection with a Competing Business, contact or solicit any of the\nCompany's then past, present or identified potential customers, suppliers or strategic partners or any such customer, supplier, or strategic partner of\nany facility managed by the Company.\n3. Confidential Information. Employee shall not during or after Employee's employment with the Company, in any manner, directly or indirectly,\nuse\nor disclose to any third party any Confidential Information except as required in the course of performance of Employee's employment with the\nCompany and as authorized by the Company in writing. For purposes of this Agreement, the terms "Confidential Information" shall be deemed to\ninclude, but not limited to, trade secrets, proprietary information, research and data, operating and marketing information, techniques and\nprocedures, customer lists, employee lists, supplier lists, training manuals and procedures, business plans, projections and strategies, pricing\ninformation and financial reports of the Company or any of its predecessors, West Central Cooperative, REG, LLC (fka Renewable Energy Group,\nLLC) and InterWest, L.C. (the "Predecessors"), in any form, which are not generally known to the public.\n4. Creations. Employee acknowledges that Employee may conceive of or otherwise create ideas, inventions, original works of authorship, product\ndesigns, logos, brand names, trade or service marks, and/or other similar or related items during the course of Employee's employment\n("Creations"). To the extent that any such Creations relate to the Company's or Predecessors' business or their customers or customer's business,\nEmployee hereby assigns to the Company all rights, titles and interests in any such Creations, including, without limitation, all patent, trade secret,\ntrademark, service mark, trade dress, copyright and other intellectual property and similar or related rights.\n2\nDuring the term of Employee's employment by the Company and for the period of one (1) year following termination of employment by\nEmployer and any of its Affiliates with or without cause, employee shall promptly disclose in writing to the Company all such intellectual property\nand other similar or related rights conceived or made by Employee, either solely or in concert with others.\nEmployee shall, at the Company's request and expense, execute specific assignments to any and all such intellectual property and other similar\nor\nrelated rights and execute, acknowledge and deliver such other documents and take all such further action as may be requested by the Company, at\nany time during or subsequent to the period of Employee's employment with the Company, to obtain, procure, prosecute, transfer, assign, enforce,\nor\ndefend any and all national or international intellectual property and/or other similar or related rights assigned hereby to the Company.\n5. Scope; Injunction. Employee agrees that the covenants contained in this Agreement are reasonable in scope, area and duration and are necessary\nin furtherance of the legitimate interests of the Company in protecting its business. Employee represents and warrants that Employee has available to\nEmployee sufficient other means of support and that observance of the covenants contained in this paragraph will not deprive Employee of the\nability to earn a livelihood or to support Employee's dependents. In the event of the breach of this Agreement, Employee acknowledges and agrees\nthat irreparable injury will result to the Company and that injunctive relief to restrain the violation of this Agreement is appropriate in addition to any\nother remedies to which the Company may be entitled at law or in equity, all remedies being cumulative and not exclusive. In addition, Employee\nshall defend, indemnify and hold the Company and its directors, officers, shareholders, employees and agents, harmless from and against any claim,\ndemand, proceeding, loss, liability, damage, cost or expense, including court costs and attorneys' fees, arising in connection with or resulting from\nany breach of warranty, misrepresentation or nonfulfillment of any agreement on the part of Employee under this Agreement whether that claim,\ndemand or proceeding is brought by the Employer, an Affiliate of Employer or a third party.\n6.\nNo\nGuarantee\nof\nEmployment.\nThis\nAgreement\ndoes\nnot\nconfer\nupon\nEmployee\nany\nrights\nto\ncontinue\nin\nthe\nemploy\nor\nservice\nof\nthe\nCompany.\nExcept as may be provided in a separate written agreement, Employee's employment with or service for the Company is "at will" and Company or\nEmployee may terminate Employee's employment at any time, for any reason or no reason, with or without cause or notice.\n7. Salary Continuation. In the event of the termination by the Company of Employee's employment with the Company without "cause" (as defined\nin\nthe Company's Amended and Restated 2009 Stock Incentive Plan, as such plan may be further amended from time to time, or any successor\nthereto), the Company shall continue to pay Employee's base compensation at the rate in effect upon termination in accordance with\n3\nthe Company's normal payroll practices (the "Salary Continuation") until terminated by the Company upon at least thirty (30) days prior written\nnotice to Employee; provided, however, Employee's obligations in paragraphs 1 and 2 hereof shall terminate effective upon the termination date of\nthe Salary Continuation; and, provided further, the Salary Continuation shall in no event continue beyond twenty-four (24) months after termination\nof Employee's employment. In addition, as part of any such Salary Continuation, Company agrees to provide or reimburse Employee for up to\n$7,500 of job outplacement services during the twelve (12) month period following termination of employment.\n8. Change of Employer. Employee acknowledges that in the event Employee's employment changes from Employer to an Affiliate of Employer,\nthat such change of employment shall be considered to be an assignment of this Agreement to such new employer, consented to by Employee\nwithout further action on Employee's part. Employee acknowledges that the Employer and any Affiliate of Employer subsequently employing\nEmployee shall have the right to enforce any rights hereunder. Actions which may be taken by the Company hereunder may be exercised by the\nPresident of the Employer (or of any Affiliate of Employer subsequently employing the Employee).\n9. Miscellaneous. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matters hereof, and\nsupersedes all negotiations, preliminary agreements and all prior and contemporaneous discussions and understandings of the parties in connection\nwith the subject matters hereof. No amendment, waiver, change or modification of any of the terms, provisions or conditions of this Agreement shall\nbe effective unless made in writing and signed or initialed by each of the parties hereto. Waiver of any provision of this Agreement shall not be\ndeemed a waiver of future compliance therewith and such provision shall remain in full force and effect. In the event any provision of this\nAgreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and\nshall continue to be valid and enforceable. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal or unenforceable as\nwritten, but that by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written and shall\nbe construed and enforced as SO limited. In addition, in the event a court determines any provision of this Agreement unenforceable under the laws of\nits jurisdiction, this Agreement shall not be deemed unenforceable under the laws and regulations of any other jurisdiction. This Agreement shall be\ngoverned by and construed in accordance with the laws of the state of Iowa without regard to conflicts of laws principles. Each of the parties hereby\nirrevocably submits to the exclusive jurisdiction of any United States Federal court sitting in Iowa in any action or proceeding arising out of or\nrelating to this Agreement or any agreement, document or instrument contemplated hereby, and each party hereby irrevocably agrees that all claims\nand counterclaims in respect of such action or proceeding may be heard and determined in any such United States Federal court. Each of the parties\nirrevocably waives any objection, including without limitation, any objection to the laying of venue or based on the grounds of forum non\nconveniens, which it may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. Each of the parties\nirrevocably consents to the service of any and all process in any such action or proceeding brought in any court in or of the\n4\nState of Iowa by the delivery of copies of such process to each party at its address specified herein or by certified mail directed to such address.\nWords and phrases herein shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to the\ncontext. The titles or captions of paragraphs of this Agreement are provided for convenience of reference only and shall not be considered a part\nhereof for purposes of interpreting or applying this Agreement and such titles or captions do not define, limit, extend, explain or describe the\nmeaning, scope or extent of this Agreement or any of its terms or conditions. This Agreement shall be binding upon and inure to the benefit of\nthe\nparties hereto and their respective legal representatives, heirs, successors and assigns. Nothing in this Agreement, express or implied, is intended to\nconfer upon any party, other than the Employee, Employer and Employer's Affiliates who may subsequently employ Employee (and their respective\nheirs, legal representatives, successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. This\nAgreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one\nand the same instrument, and in making proof hereof, it shall not be necessary to produce or account for more than one such counterpart.\n"Affiliate" means, for purposes of this Agreement, Renewable Energy Group, Inc. (if not the Employer), and any corporation, limited liability\ncompany or other entity directly or indirectly controlled by, or under common control with, Renewable Energy Group, Inc. as of the date on which,\nor at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term "control"\n(including the correlative meanings of the terms "controlled by" and "under common control with"), as used with respect to any entity, means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management policies of such entity, whether through the\nownership of voting securities or by contract or otherwise.\n10. Section 409A. Anything in this Agreement to the contrary notwithstanding:\n(a)\nThis section is intended to help ensure that compensation to Employee pursuant to this Agreement either is paid in compliance with, or\nis\nexempt from, Section 409A of the Internal Revenue Code of 1986, as amended and the rules and regulations promulgated thereunder (collectively,\n"Section 409A"). For the purposes of determining when amounts otherwise payable on account of Employee's termination of employment under this\nAgreement will be paid, which amounts become due because of Employee's termination of employment, "termination of employment" or words of\nsimilar import, as used in this Agreement, shall be construed as the date that the Employee first incurs a "separation from service" for purposes of\nSection 409A on or following termination of employment.\n(b) If at the time of Employee's separation from service within the meaning of Section 409A, Employee is a "specified employee" within the\nmeaning of Section 409A(a)(2)(B)(i) and if any payment that Employee becomes entitled to under this Agreement is considered deferred\ncompensation subject to Section 409A(a), then no such payment shall be payable prior to the date that is the earlier of (i) six months and\n5\none\nday after Employee's date of termination, and (ii) Employee's death, and the initial Payment shall include a catch-up amount covering amounts\nthat would otherwise have been paid during the first six-month period but for the application of this Section 10. For purposes of the application of\nSection 409A, each Salary Continuation payment under Section 7 shall constitute a separate payment.\n(c)\nThe parties intend that this Agreement will be administered in accordance with Section 409A. The parties agree that this Agreement may be\namended, as reasonably requested by either party, as may be necessary to fully comply with Section 409A in order to preserve the payments\nprovided hereunder, without additional cost to either party.\nIN WITNESS WHEREOF, the Employer and Employee have executed this Agreement on the dates set forth below their respective signatures.\nREG MARKETING & LOGISTICS GROUP, LLC\nEMPLOYEE\nBy\nDated:\nDated:\n6	EX-10.1 2 d338123dex101.htm FORM OF EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.1\nFORM OF\nEMPLOYEE NON-COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Employee Non-Competition and Confidentiality Agreement (“Agreement”) is made between REG MARKETING & LOGISTICS\nGROUP, LLC, an Iowa corporation (the “Employer”) and\n(“Employee”).\nRECITALS:\nA. The Employer and Employee are entering into or continuing an already existing “at will” employment relationship.\nB. The parties wish to set out certain further terms and conditions of Employee’s employment, whether with Employer, or an Affiliate of\nEmployer as defined hereafter (the Employer and its Affiliates herein collectively the “Company”), the parties recognizing that the Employee may at\ntimes be employed by an Affiliate of Employer.\nC. The Company’s special knowledge base, skills and competence in the biofuels and renewable chemicals industries are critical to its growth.\nD. The Company’s growth and competitiveness in the biofuels and renewable chemicals industries depend on its exclusive possession of, and\nthe non-public nature of, its “Confidential Information” (as hereinafter defined).\nE. The Company is engaged in research, development, procurement, sales, marketing, transportation and production of biofuels and renewable\nchemicals, feedstocks therefore and by-products thereof, and the ownership, lease, acquisition, financing, construction and operation of biofuels and\nrenewable chemicals facilities, both nationally and internationally (the “Biofuels/Renewable Chemicals Business”).\nNOW, THEREFORE, in consideration of such future or continuing employment relationship, and the agreements contained herein, and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:\n1. Covenant Not To Compete. Employee shall not, during Employee’s employment with the Company and for twenty-four (24) months thereafter,\nwithout the prior written consent of the Company, directly or indirectly, own (other than passive investments in publicly traded companies where\nsuch investment does not exceed more than one percent (1%) of the total outstanding shares or other equity interests of such company), manage,\noperate, control, be employed by, participate in, advise or be connected in any manner with the ownership, management, operation or control of a\nCompeting Business. The covenants of Employee contained in this paragraph 1 shall apply to each State and Country in which the Company, either\ndirectly or indirectly through Employer or an Affiliate of Employer, conducted its business or otherwise offered any goods, products\nor services related to its business, which shall include all States in the United States of America, which Employee represents and warrants is the\nminimum geographical area in which the Company is presently operating and intending to operate.\nCompeting Business is defined as a business engaged in the manufacture, development, sale, or marketing of biodiesel or renewable diesel or any\nother product or service (a) actively manufactured, developed, sold, or marketed by the Company during Employee’s employment period, so long as\nit remains so manufactured, developed, sold, or marketed by the Company or (b) which the Company has taken, and continues to take, substantial\nsteps to prepare to test, manufacture, research, develop, fund, sell, market or otherwise target or pursue as a special project or initiative in which the\nEmployee had direct or indirect managerial or supervisory responsibility, as of the Employee’s termination date. For the avoidance of doubt,\nemployment with, or other provision of services to, an entity or other person that engages in a Competing Business shall not constitute the\nengagement by Employee in a Competing Business so long as Employee is not involved in activities constituting, and does not in any way assist or\nadvise, directly or indirectly, a Competing Business.\n2. Employees, Customers, Suppliers, Etc. Employee shall not for a period of twenty-four (24) months after Employee’s employment with the\nCompany ceases, in any manner, directly or indirectly, solicit the services or employment or engage the services or employ anyone who is then (or\nwho was within the six months prior thereto) an employee of the Company or, in connection with a Competing Business, contact or solicit any of the\nCompany’s then past, present or identified potential customers, suppliers or strategic partners or any such customer, supplier, or strategic partner of\nany facility managed by the Company.\n3. Confidential Information. Employee shall not during or after Employee’s employment with the Company, in any manner, directly or indirectly,\nuse or disclose to any third party any Confidential Information except as required in the course of performance of Employee’s employment with the\nCompany and as authorized by the Company in writing. For purposes of this Agreement, the terms “Confidential Information” shall be deemed to\ninclude, but not limited to, trade secrets, proprietary information, research and data, operating and marketing information, techniques and\nprocedures, customer lists, employee lists, supplier lists, training manuals and procedures, business plans, projections and strategies, pricing\ninformation and financial reports of the Company or any of its predecessors, West Central Cooperative, REG, LLC (fka Renewable Energy Group,\nLLC) and InterWest, L.C. (the “Predecessors”), in any form, which are not generally known to the public.\n4. Creations. Employee acknowledges that Employee may conceive of or otherwise create ideas, inventions, original works of authorship, product\ndesigns, logos, brand names, trade or service marks, and/or other similar or related items during the course of Employee’s employment\n(“Creations”). To the extent that any such Creations relate to the Company’s or Predecessors’ business or their customers or customer’s business,\nEmployee hereby assigns to the Company all rights, titles and interests in any such Creations, including, without limitation, all patent, trade secret,\ntrademark, service mark, trade dress, copyright and other intellectual property and similar or related rights.\n2\nDuring the term of Employee’s employment by the Company and for the period of one (1) year following termination of employment by\nEmployer and any of its Affiliates with or without cause, employee shall promptly disclose in writing to the Company all such intellectual property\nand other similar or related rights conceived or made by Employee, either solely or in concert with others.\nEmployee shall, at the Company’s request and expense, execute specific assignments to any and all such intellectual property and other similar\nor related rights and execute, acknowledge and deliver such other documents and take all such further action as may be requested by the Company, at\nany time during or subsequent to the period of Employee’s employment with the Company, to obtain, procure, prosecute, transfer, assign, enforce, or\ndefend any and all national or international intellectual property and/or other similar or related rights assigned hereby to the Company.\n5. Scope; Injunction. Employee agrees that the covenants contained in this Agreement are reasonable in scope, area and duration and are necessary\nin furtherance of the legitimate interests of the Company in protecting its business. Employee represents and warrants that Employee has available to\nEmployee sufficient other means of support and that observance of the covenants contained in this paragraph will not deprive Employee of the\nability to earn a livelihood or to support Employee’s dependents. In the event of the breach of this Agreement, Employee acknowledges and agrees\nthat irreparable injury will result to the Company and that injunctive relief to restrain the violation of this Agreement is appropriate in addition to any\nother remedies to which the Company may be entitled at law or in equity, all remedies being cumulative and not exclusive. In addition, Employee\nshall defend, indemnify and hold the Company and its directors, officers, shareholders, employees and agents, harmless from and against any claim,\ndemand, proceeding, loss, liability, damage, cost or expense, including court costs and attorneys’ fees, arising in connection with or resulting from\nany breach of warranty, misrepresentation or nonfulfillment of any agreement on the part of Employee under this Agreement whether that claim,\ndemand or proceeding is brought by the Employer, an Affiliate of Employer or a third party.\n6. No Guarantee of Employment. This Agreement does not confer upon Employee any rights to continue in the employ or service of the Company.\nExcept as may be provided in a separate written agreement, Employee’s employment with or service for the Company is “at will” and Company or\nEmployee may terminate Employee’s employment at any time, for any reason or no reason, with or without cause or notice.\n7. Salary Continuation. In the event of the termination by the Company of Employee’s employment with the Company without “cause” (as defined\nin the Company’s Amended and Restated 2009 Stock Incentive Plan, as such plan may be further amended from time to time, or any successor\nthereto), the Company shall continue to pay Employee’s base compensation at the rate in effect upon termination in accordance with\n3\nthe Company’s normal payroll practices (the “Salary Continuation”) until terminated by the Company upon at least thirty (30) days prior written\nnotice to Employee; provided, however, Employee’s obligations in paragraphs 1 and 2 hereof shall terminate effective upon the termination date of\nthe Salary Continuation; and, provided further, the Salary Continuation shall in no event continue beyond twenty-four (24) months after termination\nof Employee’s employment. In addition, as part of any such Salary Continuation, Company agrees to provide or reimburse Employee for up to\n$7,500 of job outplacement services during the twelve (12) month period following termination of employment.\n8. Change of Employer. Employee acknowledges that in the event Employee’s employment changes from Employer to an Affiliate of Employer,\nthat such change of employment shall be considered to be an assignment of this Agreement to such new employer, consented to by Employee\nwithout further action on Employee’s part. Employee acknowledges that the Employer and any Affiliate of Employer subsequently employing\nEmployee shall have the right to enforce any rights hereunder. Actions which may be taken by the Company hereunder may be exercised by the\nPresident of the Employer (or of any Affiliate of Employer subsequently employing the Employee).\n9. Miscellaneous. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matters hereof, and\nsupersedes all negotiations, preliminary agreements and all prior and contemporaneous discussions and understandings of the parties in connection\nwith the subject matters hereof. No amendment, waiver, change or modification of any of the terms, provisions or conditions of this Agreement shall\nbe effective unless made in writing and signed or initialed by each of the parties hereto. Waiver of any provision of this Agreement shall not be\ndeemed a waiver of future compliance therewith and such provision shall remain in full force and effect. In the event any provision of this\nAgreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and\nshall continue to be valid and enforceable. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal or unenforceable as\nwritten, but that by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written and shall\nbe construed and enforced as so limited. In addition, in the event a court determines any provision of this Agreement unenforceable under the laws of\nits jurisdiction, this Agreement shall not be deemed unenforceable under the laws and regulations of any other jurisdiction. This Agreement shall be\ngoverned by and construed in accordance with the laws of the state of Iowa without regard to conflicts of laws principles. Each of the parties hereby\nirrevocably submits to the exclusive jurisdiction of any United States Federal court sitting in Iowa in any action or proceeding arising out of or\nrelating to this Agreement or any agreement, document or instrument contemplated hereby, and each party hereby irrevocably agrees that all claims\nand counterclaims in respect of such action or proceeding may be heard and determined in any such United States Federal court. Each of the parties\nirrevocably waives any objection, including without limitation, any objection to the laying of venue or based on the grounds of forum non\nconveniens, which it may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. Each of the parties\nirrevocably consents to the service of any and all process in any such action or proceeding brought in any court in or of the\n4\nState of Iowa by the delivery of copies of such process to each party at its address specified herein or by certified mail directed to such address.\nWords and phrases herein shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to the\ncontext. The titles or captions of paragraphs of this Agreement are provided for convenience of reference only and shall not be considered a part\nhereof for purposes of interpreting or applying this Agreement and such titles or captions do not define, limit, extend, explain or describe the\nmeaning, scope or extent of this Agreement or any of its terms or conditions. This Agreement shall be binding upon and inure to the benefit of the\nparties hereto and their respective legal representatives, heirs, successors and assigns. Nothing in this Agreement, express or implied, is intended to\nconfer upon any party, other than the Employee, Employer and Employer’s Affiliates who may subsequently employ Employee (and their respective\nheirs, legal representatives, successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. This\nAgreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one\nand the same instrument, and in making proof hereof, it shall not be necessary to produce or account for more than one such counterpart.\n“Affiliate” means, for purposes of this Agreement, Renewable Energy Group, Inc. (if not the Employer), and any corporation, limited liability\ncompany or other entity directly or indirectly controlled by, or under common control with, Renewable Energy Group, Inc. as of the date on which,\nor at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control”\n(including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any entity, means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management policies of such entity, whether through the\nownership of voting securities or by contract or otherwise.\n10. Section 409A. Anything in this Agreement to the contrary notwithstanding:\n(a) This section is intended to help ensure that compensation to Employee pursuant to this Agreement either is paid in compliance with, or is\nexempt from, Section 409A of the Internal Revenue Code of 1986, as amended and the rules and regulations promulgated thereunder (collectively,\n“Section 409A”). For the purposes of determining when amounts otherwise payable on account of Employee’s termination of employment under this\nAgreement will be paid, which amounts become due because of Employee’s termination of employment, “termination of employment” or words of\nsimilar import, as used in this Agreement, shall be construed as the date that the Employee first incurs a “separation from service” for purposes of\nSection 409A on or following termination of employment.\n(b) If at the time of Employee’s separation from service within the meaning of Section 409A, Employee is a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) and if any payment that Employee becomes entitled to under this Agreement is considered deferred\ncompensation subject to Section 409A(a), then no such payment shall be payable prior to the date that is the earlier of (i) six months and\n5\none day after Employee’s date of termination, and (ii) Employee’s death, and the initial Payment shall include a catch-up amount covering amounts\nthat would otherwise have been paid during the first six-month period but for the application of this Section 10. For purposes of the application of\nSection 409A, each Salary Continuation payment under Section 7 shall constitute a separate payment.\n(c) The parties intend that this Agreement will be administered in accordance with Section 409A. The parties agree that this Agreement may be\namended, as reasonably requested by either party, as may be necessary to fully comply with Section 409A in order to preserve the payments\nprovided hereunder, without additional cost to either party.\nIN WITNESS WHEREOF, the Employer and Employee have executed this Agreement on the dates set forth below their respective signatures.\nREG MARKETING & LOGISTICS GROUP, LLC\nEMPLOYEE\nBy\nDated:\nDated:\n6
071c4b0c3b3ba9838d0665e17ca7f15f.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated and effective as of August 3, 2009 (the “Effective Date”), between Aspect Medical\nSystems, Inc., a Delaware corporation (“Aspect”), and Tyco Healthcare Group LP d/b/a Covidien (“Receiving Party”).\nBackground\n1. Receiving Party has requested Aspect to provide certain information, which is either confidential or proprietary in nature, in connection\nwith its consideration of a possible negotiated transaction between the two companies.\n2. Aspect desires to protect the confidentiality of the information it provides and to have Receiving Party take or abstain from taking\ncertain actions in accordance with the terms of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Definitions.\n(a)\n“Evaluation Material” means any information concerning Aspect (whether prepared by Aspect, its Representatives or otherwise and\nirrespective of the form of communication) that is furnished to Receiving Party or any of its Representatives by or on behalf of Aspect on or after\nJanuary 15, 2009, and all notes, analyses, compilations, studies, interpretations, memoranda, reports or other documents (regardless of the form\nthereof) prepared by Receiving Party or its Representatives which contain, reflect or are based upon, in whole or in part, any information furnished\nto Receiving Party or its Representatives pursuant to this Agreement; provided, however, that “Evaluation Material” does not include information of\nAspect which:\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by Receiving Party or\nits Representatives in violation of this Agreement;\n(ii) was within Receiving Party’s possession prior to it being furnished to Receiving Party or its Representatives by or on behalf of\nAspect pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to Aspect or any other party with respect to such information;\n(iii) becomes available to Receiving Party on a non-confidential basis from a source other than Aspect or any of its\nRepresentatives, provided that such source was not known to Receiving Party at the time of the disclosure to be bound by a confidentiality\nagreement with or other contractual, legal or fiduciary obligation of confidentiality to Aspect or any other party with respect to such information; or\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any information\nfurnished to Receiving Party or any of its Representatives by or on behalf of Aspect.\n(b) “Representatives” means, with respect to a party, its direct and indirect parents and subsidiaries, and its and their respective directors,\nofficers, affiliates, employees, partners, agents, commercial banks or other similar lenders providing debt (but not equity) financing, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n(c) The term “person” shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company other entity or individual and the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934 (the “Exchange Act”).\nSection 2. Use and Disclosure of Evaluation Material.\n(a) Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i) use the Evaluation Material solely for the purpose of evaluating and negotiating a possible transaction between the parties;\n(ii) keep the Evaluation Material confidential in accordance with the terms of this Agreement; and\n(iii) not disclose any Evaluation Material except in accordance with the terms of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party’s Representatives who need to know such\ninformation for the sole purpose of evaluating and negotiating a possible transaction between the parties, provided that Receiving Party’s\nRepresentatives are informed of the confidential nature of such Evaluation Material.\n(b) Except as otherwise provided in this Agreement, or as otherwise required by applicable law or stock exchange requirement, neither\nparty nor any of its Representatives shall disclose to any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has\nbeen made available to Receiving Party or its Representatives, (iii) that discussions are taking place concerning a possible negotiated transaction\nbetween the parties, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions (collectively, the\n“Transaction Information”).\n(c) Receiving Party shall be liable to Aspect for any use or disclosure by any of Receiving Party’s Representatives of (i) Evaluation\nMaterial or (ii) Transaction Information, which if done by Receiving Party itself would be a breach of this Agreement. Aspect shall be\n-2-\nliable to Receiving Party for any use or disclosure by any of Aspect’s Representatives of Transaction Information, which if done by Aspect itself\nwould be a breach of this Agreement. Each party agrees, at its sole expense, to take reasonable measures (including but not limited to court\nproceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of Evaluation Material and/or the Transaction\nInformation, as the case may be.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this agreement,\nand under the joint defense doctrine.\nSection 3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or, upon the advice of its outside legal counsel, required under any applicable law,\nregulation (including, without limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of a party’s securities are listed or quoted) or valid legal process to disclose any of the Evaluation Material or the\nTransaction Information, Receiving Party shall, except as prohibited by law, provide Aspect with prompt written notice of any such request or\nrequirement so that Aspect may seek, at Aspect’s expense, a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. If Aspect seeks a protective order or other remedy, Receiving Party shall provide such cooperation as Aspect shall reasonably request. If,\nin the absence of a protective order or other remedy or the receipt by Receiving Party of a waiver from Aspect, Receiving Party or any of its\nRepresentatives is nonetheless, in the opinion of its outside legal counsel, legally compelled to disclose Evaluation Material or Transaction\nInformation to any tribunal or other entity, Receiving Party or its Representatives may, without liability hereunder, disclose to such tribunal or other\nentity only that portion of the Evaluation Material or Transaction Information which such counsel advises Receiving Party or such Representatives is\nlegally required to be disclosed, provided that Receiving Party and its Representatives shall exercise reasonable best efforts to minimize the\ndisclosure of the Evaluation Material or Transaction Information and to preserve the confidentiality thereof.\nSection 4. Return or Destruction of Evaluation Material.\nAt any time upon the written request of Aspect for any reason:\n(a) Receiving Party shall promptly (and in no event later than 15 business days after such request), at its election, either return to Aspect or\ndestroy (in which case, such destruction shall be certified in writing to Aspect by an authorized officer of Receiving Party) all Evaluation Material\n(and all copies thereof) furnished to Receiving Party or its Representatives by or on\n-3-\nbehalf of Aspect and, except as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including\nEvaluation Material stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives, and,\nexcept as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including Evaluation Material\nstored in any computer or other electronic storage device) in whole or in part of such material and such destruction shall be certified in writing to\nAspect by an authorized officer of Receiving Party upon request of Aspect.\nNotwithstanding the foregoing, Receiving Party and any of its Representatives that are accounting firms or financial institutions may retain solely for\ncompliance purposes copies of the Evaluation Material in accordance with policies and procedures implemented by such persons or to comply with\nlaw, regulation or professional standards; provided, however, that any Evaluation Material so retained will continue to be held confidential pursuant\nto the terms of this Agreement under the sole control of the Receiving Party’s or such Representative’s general counsel, as the case may be. With\nregard to destruction of Evaluation Material in electronic form, Receiving Party and its Representatives shall be required to perform customary\n“delete” functions made available by the software vendor for use by the end-user of the relevant software, but the Receiving Party and its\nRepresentatives, as the case may be, shall not be required to delete all electronic copies that may be available, for example in backups or archives, or\nwhich are retrievable using forensic computer recovery techniques. Notwithstanding the return or destruction of Evaluation Material, Receiving\nParty and its Representatives shall continue to be bound by their obligations hereunder.\nSection 5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is 12 months after the Effective Date. Unless otherwise\nexpressly stated herein, the obligations set forth in this Agreement shall continue until the third anniversary of the Effective Date; provided, however,\nthat as to Evaluation Material that is subject to a confidentiality obligation on the part of Aspect that extends beyond the third anniversary of the\nEffective Date, Aspect shall so notify Receiving Party of such extended confidentiality obligation and Aspect shall not disclose such Evaluation\nMaterial to Receiving Party until Receiving Party agrees to abide by the obligations set forth in this Agreement with respect to such Evaluation\nMaterial for the term of Aspect’s confidentiality obligation applicable to such Evaluation Material, in which event the term of this Agreement shall\nbe deemed to be so extended as to such Evaluation Material.\nSection 6. Nonsolicitation.\nFor a period of one year from the Effective Date, neither Receiving Party nor its affiliates shall solicit to employ any person who (i) is, or\nwithin the prior six months was, an officer of Aspect or any of its subsidiaries or (ii) who is, or within the prior six months was, employed in any\ncapacity by Aspect or any of its subsidiaries and with whom Representatives of Receiving Party came in contact or first identified during the process\nof considering a transaction contemplated by this Agreement; provided, however, that this paragraph shall not prevent\n-4-\nReceiving Party or its affiliates from hiring a person identified in clause (i) or (ii) (a “Covered Person”) if: (1) such Covered Person contacts\nReceiving Party or its Representatives on the Covered Person’s own initiative without any direct or indirect solicitation by or encouragement from\nReceiving Party or its Representatives; (2) the personnel of Receiving Party who solicited the Covered Person have no knowledge of any Evaluation\nMaterial and none of the personnel of Receiving Party who have knowledge of any Evaluation Material have actual advance knowledge of such\nsolicitation; (3) such Covered Person responds to a general solicitation of employment not specifically directed towards Aspect or any of its\nsubsidiaries or particular employees of Aspect or any of its subsidiaries or (4) on the date of this Agreement such Covered Person is actively engaged\nin on-going employment discussions with Receiving Party or one of its affiliates outside of the context of the transaction contemplated by this\nAgreement.\nSection 7. Standstill.\nReceiving Party agrees that, for a period of 15 months from the Effective Date, unless a “Significant Event” (as defined below) shall have\noccurred or Receiving Party shall have been specifically invited in writing by Aspect, neither Receiving Party nor any of its affiliates shall in any\nmanner, directly or indirectly:\n(a)\neffect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any\nsecurities (or beneficial ownership thereof) or assets of Aspect; (ii) any tender or exchange offer, merger or other business combination involving\nAspect; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Aspect; or (iv) any\n“solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of Aspect;\n(b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of Aspect;\n(c)\notherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of Aspect;\n(d) take any action that could reasonably be expected to require Aspect to make a public announcement regarding any of the types of\nmatters set forth in paragraph (a) above; or\n(e)\nenter into any discussions or arrangements with any person with respect to any of the foregoing.\nReceiving Party also agrees during such period not to request Aspect (or its Representatives), directly or indirectly, to amend or waive any\nprovision of this section (including this sentence).\nFor purposes of this Agreement, (i) “Significant Event” shall mean any of (A) the acquisition by any person or “13D Group” (as defined\nbelow) (other than Receiving Party or any of its affiliates) of beneficial ownership of “Voting Securities” (as defined below) of Aspect representing\nmore than 30% of the then outstanding Voting Securities of Aspect; (B) the\n-5-\nannouncement or commencement by any person or 13D Group (other than Receiving Party or any of its affiliates) of a tender or exchange offer to\nacquire Voting Securities of Aspect which, if successful, would result in such person or 13D Group owning, when combined with any other Voting\nSecurities of Aspect owned by such person or 13D Group, more than 50% of the then outstanding Voting Securities of Aspect; or (C) the entry into\nby Aspect, or determination by Aspect to seek to enter into, any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of Aspect would be converted into cash or securities of another person or 13D Group or more than 50% of the\nthen outstanding shares of common stock of Aspect would be owned by persons other than the then current holders of shares of common stock\nAspect, or which would result in all or substantially all of Aspect’s assets being sold to any person or 13D Group; (ii) “Voting Securities” shall mean,\nat any time, shares of any class of capital stock of Aspect which are then entitled to vote generally in the election of directors; provided, that for\npurposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of common stock of\nAspect shall be deemed to have been so converted, exchanged or exercised; and (iii) “13D Group” shall mean, with respect to the Voting Securities\nof Aspect, any group of persons formed for the purpose of acquiring, holding, voting or disposing of such Voting Securities which would be required\nunder Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with the SEC as a “person”\nwithin the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting Securities representing more than 5% of the\ntotal combined voting power of all such Voting Securities then outstanding.\nReceiving Party represents and warrants that, as of the date of this Agreement, neither Receiving Party nor any of its controlled or controlling\naffiliates owns, of record or beneficially, any voting securities of Aspect, or any securities convertible into or exercisable for any voting securities of\nAspect.\nSection 8. Trading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who are apprised of a possible transaction between the parties have\nbeen or will be advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company\nobtained directly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nSection 9. No Representations and Warranties; Relationship to Definitive Agreement.\n(a) Receiving Party understands and acknowledges that neither Aspect nor any of its Representatives has made or is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Receiving Party agrees that neither\nAspect nor its Representatives shall have any liability to Receiving Party or any of its Representatives or any other person relating to or resulting\nfrom the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a\ndefinitive agreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will\nhave any legal effect.\n-6-\nFor purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any other preliminary written\nagreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) Receiving Party understands and agrees that no contract or agreement, express or implied, providing for any transaction involving the\nparties shall be deemed to exist unless and until a definitive agreement has been executed and delivered. Receiving Party also agrees that unless and\nuntil a definitive agreement regarding a transaction between the parties has been executed and delivered, Aspect will not be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with\nrespect to such transaction, except for the matters specifically agreed to herein.\n(c) Aspect reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with regard to a transaction\nbetween the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or no reason. Receiving Party\nunderstands that Aspect and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including, without limitation, negotiating with other interested parties and entering into a preliminary or definitive\nagreement without prior notice to Receiving Party or any other person) and that any procedures relating to such process or transaction may be\nchanged at any time without notice to Receiving Party or any other person.\nSection 10. Contacts and Communications.\nReceiving Party agrees that, prior to the date that is 15 months after the Effective Date, all contacts or communications by it or its\nRepresentatives with Aspect regarding a possible transaction between the parties or the Evaluation Material, all requests for additional information,\nfacility tours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted\nor directed only to (i) Aspect’s Chief Executive Officer or (ii) as Aspect shall otherwise instruct in writing. Without the express prior consent of\nAspect, Receiving Party agrees that it will not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent,\ncustomer or business partner of Aspect regarding Evaluation Material or a possible transaction between the parties.\nSection 11. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof.\n(b) Receiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and that\nirreparable damage may result to Aspect if information contained therein or derived therefrom is disclosed to any person except as herein provided\nor is used for any purpose other than the evaluation of a possible negotiated transaction between the parties. Receiving Party further understands and\nagrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or any of\n-7-\nReceiving Party’s Representatives and that Aspect may be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by Receiving Party of this Agreement, but shall be in\naddition to all of Aspect’s other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that Receiving Party has breached this Agreement, then Receiving Party shall be liable for and pay to Aspect the reasonable\nlegal fees and disbursements that Aspect has incurred in connection with such litigation, including any appeal therefrom.\n(c) This Agreement may not be assigned in whole or in part by Receiving Party without the prior written consent of Aspect; provided that\nno such consent shall be required, and this Agreement may be assigned by Receiving Party, in the case of a sale by Receiving Party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay by Aspect in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one business day after it is sent for next business day delivery via a reputable nationwide overnight courier service, in each case to the\nintended recipient as set forth below:\nIf to Aspect:\nAspect Medical Systems, Inc.\nOne Upland Road\nNorwood, MA 02062\nAttention: J. Neal Armstrong\nVice President and Chief Financial Officer\nTelephone: (617) 559-7000\nCopy to:\nWilmer Cutler Pickering Hale and Dorr LLP\n60 State Street\nBoston, MA 02109\nAttn: Susan W. Murley, Esq.\nTelephone: (617) 526-6000\nIf to Receiving Party:\nTyco Healthcare Group LP\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nAttention: Senior Vice President, Strategy & Business Development\nTelephone: (508) 261-8000\nCopy to:\nTyco Healthcare Group LP\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nAttention: Chief Mergers & Acquisitions Counsel\nTelephone: (508) 261-8000\n-8-\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice or other communication shall be deemed duly given unless\nand until the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications\nhereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to\nbe an original and both of which, taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n-9-\nEXECUTED as of the date first above written.\nASPECT MEDICAL SYSTEMS, INC.\nBy:\n/s/ Nassib Chamoun\nName:\nNassib Chamoun\nTitle:\nPresident & CEO\nTYCO HEALTHCARE GROUP LP\nD/B/A COVIDIEN\nBy:\n/s/ Amy McBride-Wendell\nName:\nAmy McBride-Wendell\nTitle:\nSVP Strategy & BD&L\n-10-	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement™) is dated and effective as of August 3, 2009 (the “Effective Date”), between Aspect Medical\nSystems, Inc., a Delaware corporation (“Aspect”), and Tyco Healthcare Group LP d/b/a Covidien (“Receiving Party”).\nBackground\n1. Receiving Party has requested Aspect to provide certain information, which is either confidential or proprietary in nature, in connection\nwith its consideration of a possible negotiated transaction between the two companies.\n2. Aspect desires to protect the confidentiality of the information it provides and to have Receiving Party take or abstain from taking\ncertain actions in accordance with the terms of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Definitions.\n@ “Evaluation Material” means any information concerning Aspect (whether prepared by Aspect, its Representatives or otherwise and\nirrespective of the form of communication) that is furnished to Receiving Party or any of its Representatives by or on behalf of Aspect on or after\nJanuary 15, 2009, and all notes, analyses, compilations, studies, interpretations, memoranda, reports or other documents (regardless of the form\nthereof) prepared by Receiving Party or its Representatives which contain, reflect or are based upon, in whole or in part, any information furnished\nto Receiving Party or its Representatives pursuant to this Agreement; provided, however, that “Evaluation Material” does not include information of\nAspect which:\n@ is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by Receiving Party or\nits Representatives in violation of this Agreement;\n(i)  was within Receiving Party’s possession prior to it being furnished to Receiving Party or its Representatives by or on behalf of\nAspect pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to Aspect or any other party with respect to such information;\n(iii)  becomes available to Receiving Party on a non-confidential basis from a source other than Aspect or any of its\nRepresentatives, provided that such source was not known to Receiving Party at the time of the disclosure to be bound by a confidentiality\nagreement with or other contractual, legal or fiduciary obligation of confidentiality to Aspect or any other party with respect to such information; or\n(iv)  is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any information\nfurnished to Receiving Party or any of its Representatives by or on behalf of Aspect.\n(b) “Representatives” means, with respect to a party, its direct and indirect parents and subsidiaries, and its and their respective directors,\nofficers, affiliates, employees, partners, agents, commercial banks or other similar lenders providing debt (but not equity) financing, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n(o) The term “person” shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company other entity or individual and the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934 (the “Exchange Act”).\nSection 2. Use and Disclosure of Evaluation Material.\n@ Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n@ use the Evaluation Material solely for the purpose of evaluating and negotiating a possible transaction between the parties;\n(i)  keep the Evaluation Material confidential in accordance with the terms of this Agreement; and\n(iili)  not disclose any Evaluation Material except in accordance with the terms of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party’s Representatives who need to know such\ninformation for the sole purpose of evaluating and negotiating a possible transaction between the parties, provided that Receiving Party’s\nRepresentatives are informed of the confidential nature of such Evaluation Material.\n \n(b) Except as otherwise provided in this Agreement, or as otherwise required by applicable law or stock exchange requirement, neither\nparty nor any of its Representatives shall disclose to any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has\nbeen made available to Receiving Party or its Representatives, (iii) that discussions are taking place concerning a possible negotiated transaction\nbetween the parties, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions (collectively, the\n“Transaction Information™).\n(o) Receiving Party shall be liable to Aspect for any use or disclosure by any of Receiving Party’s Representatives of (i) Evaluation\nMaterial or (ii) Transaction Information, which if done by Receiving Party itself would be a breach of this Agreement. Aspect shall be\n_2-\nliable to Receiving Party for any use or disclosure by any of Aspect’s Representatives of Transaction Information, which if done by Aspect itself\nwould be a breach of this Agreement. Each party agrees, at its sole expense, to take reasonable measures (including but not limited to court\nproceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of Evaluation Material and/or the Transaction\nInformation, as the case may be.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this agreement,\nand under the joint defense doctrine.\nSection 3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or, upon the advice of its outside legal counsel, required under any applicable law,\nregulation (including, without limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of a party’s securities are listed or quoted) or valid legal process to disclose any of the Evaluation Material or the\nTransaction Information, Receiving Party shall, except as prohibited by law, provide Aspect with prompt written notice of any such request or\nrequirement so that Aspect may seek, at Aspect’s expense, a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. If Aspect seeks a protective order or other remedy, Receiving Party shall provide such cooperation as Aspect shall reasonably request. If,\nin the absence of a protective order or other remedy or the receipt by Receiving Party of a waiver from Aspect, Receiving Party or any of its\nRepresentatives is nonetheless, in the opinion of its outside legal counsel, legally compelled to disclose Evaluation Material or Transaction\nInformation to any tribunal or other entity, Receiving Party or its Representatives may, without liability hereunder, disclose to such tribunal or other\nentity only that portion of the Evaluation Material or Transaction Information which such counsel advises Receiving Party or such Representatives is\nlegally required to be disclosed, provided that Receiving Party and its Representatives shall exercise reasonable best efforts to minimize the\ndisclosure of the Evaluation Material or Transaction Information and to preserve the confidentiality thereof.\nSection 4. Return or Destruction of Evaluation Material.\nAt any time upon the written request of Aspect for any reason:\n@ Receiving Party shall promptly (and in no event later than 15 business days after such request), at its election, either return to Aspect or\ndestroy (in which case, such destruction shall be certified in writing to Aspect by an authorized officer of Receiving Party) all Evaluation Material\n(and all copies thereof) furnished to Receiving Party or its Representatives by or on\n_3-\nbehalf of Aspect and, except as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including\nEvaluation Material stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives, and,\nexcept as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including Evaluation Material\nstored in any computer or other electronic storage device) in whole or in part of such material and such destruction shall be certified in writing to\nAspect by an authorized officer of Receiving Party upon request of Aspect.\nNotwithstanding the foregoing, Receiving Party and any of its Representatives that are accounting firms or financial institutions may retain solely for\ncompliance purposes copies of the Evaluation Material in accordance with policies and procedures implemented by such persons or to comply with\nlaw, regulation or professional standards; provided, however, that any Evaluation Material so retained will continue to be held confidential pursuant\nto the terms of this Agreement under the sole control of the Receiving Party’s or such Representative’s general counsel, as the case may be. With\nregard to destruction of Evaluation Material in electronic form, Receiving Party and its Representatives shall be required to perform customary\n“delete” functions made available by the software vendor for use by the end-user of the relevant software, but the Receiving Party and its\nRepresentatives, as the case may be, shall not be required to delete all electronic copies that may be available, for example in backups or archives, or\nwhich are retrievable using forensic computer recovery techniques. Notwithstanding the return or destruction of Evaluation Material, Receiving\nParty and its Representatives shall continue to be bound by their obligations hereunder.\nSection 5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is 12 months after the Effective Date. Unless otherwise\nexpressly stated herein, the obligations set forth in this Agreement shall continue until the third anniversary of the Effective Date; provided, however,\nthat as to Evaluation Material that is subject to a confidentiality obligation on the part of Aspect that extends beyond the third anniversary of the\nEffective Date, Aspect shall so notify Receiving Party of such extended confidentiality obligation and Aspect shall not disclose such Evaluation\nMaterial to Receiving Party until Receiving Party agrees to abide by the obligations set forth in this Agreement with respect to such Evaluation\nMaterial for the term of Aspect’s confidentiality obligation applicable to such Evaluation Material, in which event the term of this Agreement shall\nbe deemed to be so extended as to such Evaluation Material.\nSection 6. Nonsolicitation.\nFor a period of one year from the Effective Date, neither Receiving Party nor its affiliates shall solicit to employ any person who (i) is, or\nwithin the prior six months was, an officer of Aspect or any of its subsidiaries or (ii) who is, or within the prior six months was, employed in any\ncapacity by Aspect or any of its subsidiaries and with whom Representatives of Receiving Party came in contact or first identified during the process\nof considering a transaction contemplated by this Agreement; provided, however, that this paragraph shall not prevent\n \n_4-\nReceiving Party or its affiliates from hiring a person identified in clause (i) or (ii) (a “Covered Person”) if: (1) such Covered Person contacts\nReceiving Party or its Representatives on the Covered Person’s own initiative without any direct or indirect solicitation by or encouragement from\nReceiving Party or its Representatives; (2) the personnel of Receiving Party who solicited the Covered Person have no knowledge of any Evaluation\nMaterial and none of the personnel of Receiving Party who have knowledge of any Evaluation Material have actual advance knowledge of such\nsolicitation; (3) such Covered Person responds to a general solicitation of employment not specifically directed towards Aspect or any of its\nsubsidiaries or particular employees of Aspect or any of its subsidiaries or (4) on the date of this Agreement such Covered Person is actively engaged\nin on-going employment discussions with Receiving Party or one of its affiliates outside of the context of the transaction contemplated by this\nAgreement.\nSection 7. Standstill.\nReceiving Party agrees that, for a period of 15 months from the Effective Date, unless a “Significant Event” (as defined below) shall have\noccurred or Receiving Party shall have been specifically invited in writing by Aspect, neither Receiving Party nor any of its affiliates shall in any\nmanner, directly or indirectly:\n@ effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any\nsecurities (or beneficial ownership thereof) or assets of Aspect; (ii) any tender or exchange offer, merger or other business combination involving\nAspect; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Aspect; or (iv) any\n“solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of Aspect;\n(b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of Aspect;\n(o) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of Aspect;\n(d) take any action that could reasonably be expected to require Aspect to make a public announcement regarding any of the types of\nmatters set forth in paragraph (a) above; or\n(e) enter into any discussions or arrangements with any person with respect to any of the foregoing.\nReceiving Party also agrees during such period not to request Aspect (or its Representatives), directly or indirectly, to amend or waive any\nprovision of this section (including this sentence).\nFor purposes of this Agreement, (i) “Significant Event” shall mean any of (A) the acquisition by any person or “13D Group” (as defined\nbelow) (other than Receiving Party or any of its affiliates) of beneficial ownership of “Voting Securities” (as defined below) of Aspect representing\nmore than 30% of the then outstanding Voting Securities of Aspect; (B) the\n_5.\nannouncement or commencement by any person or 13D Group (other than Receiving Party or any of its affiliates) of a tender or exchange offer to\nacquire Voting Securities of Aspect which, if successful, would result in such person or 13D Group owning, when combined with any other Voting\nSecurities of Aspect owned by such person or 13D Group, more than 50% of the then outstanding Voting Securities of Aspect; or (C) the entry into\nby Aspect, or determination by Aspect to seek to enter into, any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of Aspect would be converted into cash or securities of another person or 13D Group or more than 50% of the\nthen outstanding shares of common stock of Aspect would be owned by persons other than the then current holders of shares of common stock\nAspect, or which would result in all or substantially all of Aspect’s assets being sold to any person or 13D Group; (ii) “Voting Securities” shall mean,\nat any time, shares of any class of capital stock of Aspect which are then entitled to vote generally in the election of directors; provided, that for\npurposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of common stock of\nAspect shall be deemed to have been so converted, exchanged or exercised; and (iii) “13D Group” shall mean, with respect to the Voting Securities\nof Aspect, any group of persons formed for the purpose of acquiring, holding, voting or disposing of such Voting Securities which would be required\nunder Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with the SEC as a “person”\nwithin the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting Securities representing more than 5% of the\ntotal combined voting power of all such Voting Securities then outstanding.\nReceiving Party represents and warrants that, as of the date of this Agreement, neither Receiving Party nor any of its controlled or controlling\naffiliates owns, of record or beneficially, any voting securities of Aspect, or any securities convertible into or exercisable for any voting securities of\nAspect.\nSection 8. Trading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who are apprised of a possible transaction between the parties have\nbeen or will be advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company\nobtained directly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n@ Receiving Party understands and acknowledges that neither Aspect nor any of its Representatives has made or is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Receiving Party agrees that neither\nAspect nor its Representatives shall have any liability to Receiving Party or any of its Representatives or any other person relating to or resulting\nfrom the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a\ndefinitive agreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will\nhave any legal effect.\n-6-\nFor purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any other preliminary written\nagreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) Receiving Party understands and agrees that no contract or agreement, express or implied, providing for any transaction involving the\nparties shall be deemed to exist unless and until a definitive agreement has been executed and delivered. Receiving Party also agrees that unless and\nuntil a definitive agreement regarding a transaction between the parties has been executed and delivered, Aspect will not be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with\nrespect to such transaction, except for the matters specifically agreed to herein.\n(o) Aspect reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with regard to a transaction\nbetween the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or no reason. Receiving Party\nunderstands that Aspect and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including, without limitation, negotiating with other interested parties and entering into a preliminary or definitive\nagreement without prior notice to Receiving Party or any other person) and that any procedures relating to such process or transaction may be\nchanged at any time without notice to Receiving Party or any other person.\nSection 10. Contacts and Communications.\nReceiving Party agrees that, prior to the date that is 15 months after the Effective Date, all contacts or communications by it or its\nRepresentatives with Aspect regarding a possible transaction between the parties or the Evaluation Material, all requests for additional information,\nfacility tours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted\nor directed only to (i) Aspect’s Chief Executive Officer or (ii) as Aspect shall otherwise instruct in writing. Without the express prior consent of\nAspect, Receiving Party agrees that it will not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent,\ncustomer or business partner of Aspect regarding Evaluation Material or a possible transaction between the parties.\nSection 11. Miscellaneous.\n@ This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof.\n(b) Receiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and that\nirreparable damage may result to Aspect if information contained therein or derived therefrom is disclosed to any person except as herein provided\nor is used for any purpose other than the evaluation of a possible negotiated transaction between the parties. Receiving Party further understands and\nagrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or any of\n_7-\nReceiving Party’s Representatives and that Aspect may be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by Receiving Party of this Agreement, but shall be in\naddition to all of Aspect’s other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that Receiving Party has breached this Agreement, then Receiving Party shall be liable for and pay to Aspect the reasonable\nlegal fees and disbursements that Aspect has incurred in connection with such litigation, including any appeal therefrom.\n(o) This Agreement may not be assigned in whole or in part by Receiving Party without the prior written consent of Aspect; provided that\nno such consent shall be required, and this Agreement may be assigned by Receiving Party, in the case of a sale by Receiving Party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay by Aspect in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one business day after it is sent for next business day delivery via a reputable nationwide overnight courier service, in each case to the\nintended recipient as set forth below:\nIf to Aspect: Copy to:\nAspect Medical Systems, Inc. Wilmer Cutler Pickering Hale and Dorr LLP\nOne Upland Road 60 State Street\nNorwood, MA 02062 Boston, MA 02109\nAttention: J. Neal Armstrong Attn: Susan W. Murley, Esq.\nVice President and Chief Financial Officer Telephone: (617) 526-6000\nTelephone: (617) 559-7000\nIf to Receiving Party: Copy to:\nTyco Healthcare Group LP Tyco Healthcare Group LP\nd/b/a Covidien d/b/a Covidien\n15 Hampshire Street 15 Hampshire Street\nMansfield, MA 02048 Mansfield, MA 02048\nAttention: Senior Vice President, Strategy & Business Development Attention: Chief Mergers & Acquisitions Counsel\nTelephone: (508) 261-8000 Telephone: (508) 261-8000\n-8-\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice or other communication shall be deemed duly given unless\nand until the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications\nhereunder are to be delivered by giving the other party notice in the manner herein set forth.\n() For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to\nbe an original and both of which, taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n-9.\nEXECUTED as of the date first above written.\n-10 -\nASPECT MEDICAL SYSTEMS, INC.\nBy: /s/ Nassib Chamoun\nName: Nassib Chamoun\nTitle: President & CEO\nTYCO HEALTHCARE GROUP LP\nD/B/A COVIDIEN\nBy: /s/ Amy McBride-Wendell\nName: Amy McBride-Wendell\nTitle: SVP Strategy & BD&L	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the "Agreement") is dated and effective as of August 3, 2009 (the "Effective Date"), between Aspect Medical\nSystems, Inc., a Delaware corporation ("Aspect"), and Tyco Healthcare Group LP d/b/a Covidien ("Receiving Party").\nBackground\n1. Receiving Party has requested Aspect to provide certain information, which is either confidential or proprietary in nature, in connection\nwith its consideration of a possible negotiated transaction between the two companies.\n2.\nAspect desires to protect the confidentiality of the information it provides and to have Receiving Party take or abstain from taking\ncertain actions in accordance with the terms of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Definitions.\n(a)\n"Evaluation Material" means any information concerning Aspect (whether prepared by Aspect, its Representatives or otherwise and\nirrespective of the form of communication) that is furnished to Receiving Party or any of its Representatives by or on behalf of Aspect on or after\nJanuary 15, 2009, and all notes, analyses, compilations, studies, interpretations, memoranda, reports or other documents (regardless of the form\nthereof) prepared by Receiving Party or its Representatives which contain, reflect or are based upon, in whole or in part, any information furnished\nto Receiving Party or its Representatives pursuant to this Agreement; provided, however, that "Evaluation Material" does not include information of\nAspect which:\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by Receiving Party or\nits Representatives in violation of this Agreement;\n(ii)\nwas within Receiving Party's possession prior to it being furnished to Receiving Party or its Representatives by or on behalf of\nAspect pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to Aspect or any other party with respect to such information;\n(iii) becomes available to Receiving Party on a non-confidential basis from a source other than Aspect or any of its\nRepresentatives, provided that such source was not known to Receiving Party at the time of the disclosure to be bound by a confidentiality\nagreement with or other contractual, legal or fiduciary obligation of confidentiality to Aspect or any other party with respect to such information;\nor\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any information\nfurnished to Receiving Party or any of its Representatives by or on behalf of Aspect.\n(b) "Representatives" means, with respect to a party, its direct and indirect parents and subsidiaries, and its and their respective directors,\nofficers, affiliates, employees, partners, agents, commercial banks or other similar lenders providing debt (but not equity) financing, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n(c)\nThe term "person" shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company other entity or individual and the term "affiliate" has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934 (the "Exchange Act").\nSection 2. Use and Disclosure of Evaluation Material.\n(a)\nExcept as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i)\nuse the Evaluation Material solely for the purpose of evaluating and negotiating a possible transaction between the parties;\n(ii)\nkeep the Evaluation Material confidential in accordance with the terms of this Agreement; and\n(iii)\nnot disclose any Evaluation Material except in accordance with the terms of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party's Representatives who need to know such\ninformation for the sole purpose of evaluating and negotiating a possible transaction between the parties, provided that Receiving Party's\nRepresentatives are informed of the confidential nature of such Evaluation Material.\n(b) Except as otherwise provided in this Agreement, or as otherwise required by applicable law or stock exchange requirement, neither\nparty nor any of its Representatives shall disclose to any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has\nbeen made available to Receiving Party or its Representatives, (iii) that discussions are taking place concerning a possible negotiated transaction\nbetween the parties, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions (collectively, the\n"Transaction Information").\n(c)\nReceiving Party shall be liable to Aspect for any use or disclosure by any of Receiving Party's Representatives of (i) Evaluation\nMaterial or (ii) Transaction Information, which if done by Receiving Party itself would be a breach of this Agreement. Aspect shall be\n2\nliable to Receiving Party for any use or disclosure by any of Aspect's Representatives of Transaction Information, which if done by Aspect itself\nwould be a breach of this Agreement. Each party agrees, at its sole expense, to take reasonable measures (including but not limited to court\nproceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of Evaluation Material and/or the Transaction\nInformation, as the case may be.\n(d)\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product\ndoctrine\nor\nany\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this agreement,\nand under the joint defense doctrine.\nSection 3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or, upon the advice of its outside legal counsel, required under any applicable law,\nregulation (including, without limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of a party's securities are listed or quoted) or valid legal process to disclose any of the Evaluation Material or the\nTransaction Information, Receiving Party shall, except as prohibited by law, provide Aspect with prompt written notice of any such request or\nrequirement so that Aspect may seek, at Aspect's expense, a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. If Aspect seeks a protective order or other remedy, Receiving Party shall provide such cooperation as Aspect shall reasonably request. If,\nin the absence of a protective order or other remedy or the receipt by Receiving Party of a waiver from Aspect, Receiving Party or any of its\nRepresentatives is nonetheless, in the opinion of its outside legal counsel, legally compelled to disclose Evaluation Material or Transaction\nInformation to any tribunal or other entity, Receiving Party or its Representatives may, without liability hereunder, disclose to such tribunal or other\nentity only that portion of the Evaluation Material or Transaction Information which such counsel advises Receiving Party or such Representatives is\nlegally required to be disclosed, provided that Receiving Party and its Representatives shall exercise reasonable best efforts to minimize the\ndisclosure of the Evaluation Material or Transaction Information and to preserve the confidentiality thereof.\nSection 4. Return or Destruction of Evaluation Material.\nAt any time upon the written request of Aspect for any reason:\n(a)\nReceiving Party shall promptly (and in no event later than 15 business days after such request), at its election, either return to Aspect or\ndestroy (in which case, such destruction shall be certified in writing to Aspect by an authorized officer of Receiving Party) all Evaluation Material\n(and all copies thereof) furnished to Receiving Party or its Representatives by or on\n3\nbehalf of Aspect and, except as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including\nEvaluation Material stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b)\nReceiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives, and,\nexcept as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including Evaluation Material\nstored in any computer or other electronic storage device) in whole or in part of such material and such destruction shall be certified in writing to\nAspect by an authorized officer of Receiving Party upon request of Aspect.\nNotwithstanding the foregoing, Receiving Party and any of its Representatives that are accounting firms or financial institutions may retain solely for\ncompliance purposes copies of the Evaluation Material in accordance with policies and procedures implemented by such persons or to comply with\nlaw, regulation or professional standards; provided, however, that any Evaluation Material so retained will continue to be held confidential pursuant\nto\nthe\nterms of this Agreement under the sole control of the Receiving Party's or such Representative's general counsel, as the case may be. With\nregard to destruction of Evaluation Material in electronic form, Receiving Party and its Representatives shall be required to perform customary\n"delete" functions made available by the software vendor for use by the end-user of the relevant software, but the Receiving Party and its\nRepresentatives, as the case may be, shall not be required to delete all electronic copies that may be available, for example in backups or archives,\nor\nwhich are retrievable using forensic computer recovery techniques. Notwithstanding the return or destruction of Evaluation Material, Receiving\nParty and its Representatives shall continue to be bound by their obligations hereunder.\nSection 5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is 12 months after the Effective Date. Unless otherwise\nexpressly stated herein, the obligations set forth in this Agreement shall continue until the third anniversary of the Effective Date; provided, however,\nthat as to Evaluation Material that is subject to a confidentiality obligation on the part of Aspect that extends beyond the third anniversary of\nthe\nEffective Date, Aspect shall so notify Receiving Party of such extended confidentiality obligation and Aspect shall not disclose such Evaluation\nMaterial to Receiving Party until Receiving Party agrees to abide by the obligations set forth in this Agreement with respect to such Evaluation\nMaterial for the term of Aspect's confidentiality obligation applicable to such Evaluation Material, in which event the term of this Agreement shall\nbe deemed to be so extended as to such Evaluation Material.\nSection 6. Nonsolicitation.\nFor a period of one year from the Effective Date, neither Receiving Party nor its affiliates shall solicit to employ any person who (i) is, or\nwithin the prior six months was, an officer of Aspect or any of its subsidiaries or (ii) who is, or within the prior six months was, employed in any\ncapacity by Aspect or any of its subsidiaries and with whom Representatives of Receiving Party came in contact or first identified during the process\nof considering a transaction contemplated by this Agreement; provided, however, that this paragraph shall not prevent\n4\nReceiving Party or its affiliates from hiring a person identified in clause (i) or (ii) (a "Covered Person") if: (1) such Covered Person contacts\nReceiving Party or its Representatives on the Covered Person's own initiative without any direct or indirect solicitation by or encouragement from\nReceiving Party or its Representatives; (2) the personnel of Receiving Party who solicited the Covered Person have no knowledge of any Evaluation\nMaterial and none of the personnel of Receiving Party who have knowledge of any Evaluation Material have actual advance knowledge of such\nsolicitation; (3) such Covered Person responds to a general solicitation of employment not specifically directed towards Aspect or any of its\nsubsidiaries or particular employees of Aspect or any of its subsidiaries or (4) on the date of this Agreement such Covered Person is actively engaged\nin on-going employment discussions with Receiving Party or one of its affiliates outside of the context of the transaction contemplated by this\nAgreement.\nSection 7. Standstill.\nReceiving Party agrees that, for a period of 15 months from the Effective Date, unless a "Significant Event" (as defined below) shall have\noccurred or Receiving Party shall have been specifically invited in writing by Aspect, neither Receiving Party nor any of its affiliates shall in any\nmanner, directly or indirectly:\n(a)\neffect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any\nsecurities (or beneficial ownership thereof) or assets of Aspect; (ii) any tender or exchange offer, merger or other business combination involving\nAspect; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Aspect; or (iv) any\n"solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of Aspect;\n(b)\nform, join or in any way participate in a "group" (as defined under the Exchange Act) with respect to any securities of Aspect;\n(c)\notherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of Aspect;\n(d)\ntake any action that could reasonably be expected to require Aspect to make a public announcement regarding any of the types of\nmatters set forth in paragraph (a) above; or\n(e)\nenter into any discussions or arrangements with any person with respect to any of the foregoing.\nReceiving Party also agrees during such period not to request Aspect (or its Representatives), directly or indirectly, to amend or waive any\nprovision of this section (including this sentence).\nFor purposes of this Agreement, (i) "Significant Event" shall mean any of (A) the acquisition by any person or "13D Group" (as defined\nbelow) (other than Receiving Party or any of its affiliates) of beneficial ownership of "Voting Securities" (as defined below) of Aspect representing\nmore than 30% of the then outstanding Voting Securities of Aspect; (B) the\n5\nannouncement or commencement by any person or 13D Group (other than Receiving Party or any of its affiliates) of a tender or exchange offer to\nacquire Voting Securities of Aspect which, if successful, would result in such person or 13D Group owning, when combined with any other Voting\nSecurities of Aspect owned by such person or 13D Group, more than 50% of the then outstanding Voting Securities of Aspect; or (C) the entry into\nby Aspect, or determination by Aspect to seek to enter into, any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of Aspect would be converted into cash or securities of another person or 13D Group or more than 50% of the\nthen outstanding shares of common stock of Aspect would be owned by persons other than the then current holders of shares of common stock\nAspect, or which would result in all or substantially all of Aspect's assets being sold to any person or 13D Group; (ii) "Voting Securities" shall mean,\nat any time, shares of any class of capital stock of Aspect which are then entitled to vote generally in the election of directors; provided, that for\npurposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of common stock\nof\nAspect shall be deemed to have been so converted, exchanged or exercised; and (iii) "13D Group" shall mean, with respect to the Voting Securities\nof Aspect, any group of persons formed for the purpose of acquiring, holding, voting or disposing of such Voting Securities which would be required\nunder Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with the SEC as a "person"\nwithin the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting Securities representing more than 5% of the\ntotal combined voting power of all such Voting Securities then outstanding.\nReceiving Party represents and warrants that, as of the date of this Agreement, neither Receiving Party nor any of its controlled or controlling\naffiliates owns, of record or beneficially, any voting securities of Aspect, or any securities convertible into or exercisable for any voting securities of\nAspect.\nSection 8. Trading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who are apprised of a possible transaction between the parties have\nbeen or will be advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company\nobtained directly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nSection 9. No Representations and Warranties; Relationship to Definitive Agreement.\n(a)\nReceiving Party understands and acknowledges that neither Aspect nor any of its Representatives has made or is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Receiving Party agrees that neither\nAspect nor its Representatives shall have any liability to Receiving Party or any of its Representatives or any other person relating to or resulting\nfrom the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a\ndefinitive agreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will\nhave any legal effect.\n6\nFor purposes of this Agreement, the term "definitive agreement" does not include any executed letter of intent or any other preliminary written\nagreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b)\nReceiving Party understands and agrees that no contract or agreement, express or implied, providing for any transaction involving the\nparties shall be deemed to exist unless and until a definitive agreement has been executed and delivered. Receiving Party also agrees that unless and\nuntil a definitive agreement regarding a transaction between the parties has been executed and delivered, Aspect will not be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with\nrespect to such transaction, except for the matters specifically agreed to herein.\n(c)\nAspect reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with regard to a transaction\nbetween the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or no reason. Receiving Party\nunderstands that Aspect and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including, without limitation, negotiating with other interested parties and entering into a preliminary or definitive\nagreement without prior notice to Receiving Party or any other person) and that any procedures relating to such process or transaction may be\nchanged at any time without notice to Receiving Party or any other person.\nSection 10. Contacts and Communications.\nReceiving Party agrees that, prior to the date that is 15 months after the Effective Date, all contacts or communications by it or its\nRepresentatives with Aspect regarding a possible transaction between the parties or the Evaluation Material, all requests for additional information,\nfacility tours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted\nor directed only to (i) Aspect's Chief Executive Officer or (ii) as Aspect shall otherwise instruct in writing. Without the express prior consent of\nAspect, Receiving Party agrees that it will not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent,\ncustomer or business partner of Aspect regarding Evaluation Material or a possible transaction between the parties.\nSection 11. Miscellaneous.\n(a)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof.\n(b)\nReceiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and that\nirreparable damage may result to Aspect if information contained therein or derived therefrom is disclosed to any person except as herein provided\nor is used for any purpose other than the evaluation of a possible negotiated transaction between the parties. Receiving Party further understands and\nagrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or any of\n7\nReceiving Party's Representatives and that Aspect may be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by Receiving Party of this Agreement, but shall be in\naddition to all of Aspect's other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that Receiving Party has breached this Agreement, then Receiving Party shall be liable for and pay to Aspect the reasonable\nlegal fees and disbursements that Aspect has incurred in connection with such litigation, including any appeal therefrom.\n(c)\nThis Agreement may not be assigned in whole or in part by Receiving Party without the prior written consent of Aspect; provided that\nno such consent shall be required, and this Agreement may be assigned by Receiving Party, in the case of a sale by Receiving Party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d)\nThis Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay by Aspect in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n(e)\nAll notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one business day after it is sent for next business day delivery via a reputable nationwide overnight courier service, in each case to the\nintended recipient as set forth below:\nIf to Aspect:\nCopy to:\nAspect Medical Systems, Inc.\nWilmer Cutler Pickering Hale and Dorr LLP\nOne Upland Road\n60 State Street\nNorwood, MA 02062\nBoston, MA 02109\nAttention: J. Neal Armstrong\nAttn: Susan W. Murley, Esq\nVice President and Chief Financial Officer\nTelephone: (617) 526-6000\nTelephone: (617) 559-7000\nIf to Receiving Party:\nCopy to:\nTyco Healthcare Group LP\nTyco Healthcare Group LP\nd/b/a Covidien\nd/b/a Covidien\n15 Hampshire Street\n15 Hampshire Street\nMansfield, MA 02048\nMansfield, MA 02048\nAttention: Senior Vice President, Strategy & Business Development\nAttention: Chief Mergers & Acquisitions Counsel\nTelephone: (508) 261-8000\nTelephone: (508) 261-8000\n8\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice or other communication shall be deemed duly given unless\nand until the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications\nhereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to\nbe an original and both of which, taken together, shall constitute one agreement binding on both parties.\n(g)\nThe section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n9\nEXECUTED as of the date first above written.\nASPECT MEDICAL SYSTEMS, INC.\nBy:\n/s/ Nassib Chamoun\nName:\nNassib Chamoun\nTitle:\nPresident & CEO\nTYCO HEALTHCARE GROUP LP\nD/B/A COVIDIEN\nBy:\n/s/ Amy McBride-Wendell\nName:\nAmy McBride-Wendell\nTitle:\nSVP Strategy & BD&L\n- 10 -	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated and effective as of August 3, 2009 (the “Effective Date”), between Aspect Medical\nSystems, Inc., a Delaware corporation (“Aspect”), and Tyco Healthcare Group LP d/b/a Covidien (“Receiving Party”).\nBackground\n1. Receiving Party has requested Aspect to provide certain information, which is either confidential or proprietary in nature, in connection\nwith its consideration of a possible negotiated transaction between the two companies.\n2. Aspect desires to protect the confidentiality of the information it provides and to have Receiving Party take or abstain from taking\ncertain actions in accordance with the terms of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Definitions.\n(a)\n“Evaluation Material” means any information concerning Aspect (whether prepared by Aspect, its Representatives or otherwise and\nirrespective of the form of communication) that is furnished to Receiving Party or any of its Representatives by or on behalf of Aspect on or after\nJanuary 15, 2009, and all notes, analyses, compilations, studies, interpretations, memoranda, reports or other documents (regardless of the form\nthereof) prepared by Receiving Party or its Representatives which contain, reflect or are based upon, in whole or in part, any information furnished\nto Receiving Party or its Representatives pursuant to this Agreement; provided, however, that “Evaluation Material” does not include information of\nAspect which:\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by Receiving Party or\nits Representatives in violation of this Agreement;\n(ii) was within Receiving Party’s possession prior to it being furnished to Receiving Party or its Representatives by or on behalf of\nAspect pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to Aspect or any other party with respect to such information;\n(iii) becomes available to Receiving Party on a non-confidential basis from a source other than Aspect or any of its\nRepresentatives, provided that such source was not known to Receiving Party at the time of the disclosure to be bound by a confidentiality\nagreement with or other contractual, legal or fiduciary obligation of confidentiality to Aspect or any other party with respect to such information; or\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any information\nfurnished to Receiving Party or any of its Representatives by or on behalf of Aspect.\n(b) “Representatives” means, with respect to a party, its direct and indirect parents and subsidiaries, and its and their respective directors,\nofficers, affiliates, employees, partners, agents, commercial banks or other similar lenders providing debt (but not equity) financing, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n(c) The term “person” shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company other entity or individual and the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934 (the “Exchange Act”).\nSection 2. Use and Disclosure of Evaluation Material.\n(a) Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i) use the Evaluation Material solely for the purpose of evaluating and negotiating a possible transaction between the parties;\n(ii) keep the Evaluation Material confidential in accordance with the terms of this Agreement; and\n(iii) not disclose any Evaluation Material except in accordance with the terms of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party’s Representatives who need to know such\ninformation for the sole purpose of evaluating and negotiating a possible transaction between the parties, provided that Receiving Party’s\nRepresentatives are informed of the confidential nature of such Evaluation Material.\n(b) Except as otherwise provided in this Agreement, or as otherwise required by applicable law or stock exchange requirement, neither\nparty nor any of its Representatives shall disclose to any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has\nbeen made available to Receiving Party or its Representatives, (iii) that discussions are taking place concerning a possible negotiated transaction\nbetween the parties, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions (collectively, the\n“Transaction Information”).\n(c) Receiving Party shall be liable to Aspect for any use or disclosure by any of Receiving Party’s Representatives of (i) Evaluation\nMaterial or (ii) Transaction Information, which if done by Receiving Party itself would be a breach of this Agreement. Aspect shall be\n-2-\nliable to Receiving Party for any use or disclosure by any of Aspect’s Representatives of Transaction Information, which if done by Aspect itself\nwould be a breach of this Agreement. Each party agrees, at its sole expense, to take reasonable measures (including but not limited to court\nproceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of Evaluation Material and/or the Transaction\nInformation, as the case may be.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this agreement,\nand under the joint defense doctrine.\nSection 3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or, upon the advice of its outside legal counsel, required under any applicable law,\nregulation (including, without limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of a party’s securities are listed or quoted) or valid legal process to disclose any of the Evaluation Material or the\nTransaction Information, Receiving Party shall, except as prohibited by law, provide Aspect with prompt written notice of any such request or\nrequirement so that Aspect may seek, at Aspect’s expense, a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. If Aspect seeks a protective order or other remedy, Receiving Party shall provide such cooperation as Aspect shall reasonably request. If,\nin the absence of a protective order or other remedy or the receipt by Receiving Party of a waiver from Aspect, Receiving Party or any of its\nRepresentatives is nonetheless, in the opinion of its outside legal counsel, legally compelled to disclose Evaluation Material or Transaction\nInformation to any tribunal or other entity, Receiving Party or its Representatives may, without liability hereunder, disclose to such tribunal or other\nentity only that portion of the Evaluation Material or Transaction Information which such counsel advises Receiving Party or such Representatives is\nlegally required to be disclosed, provided that Receiving Party and its Representatives shall exercise reasonable best efforts to minimize the\ndisclosure of the Evaluation Material or Transaction Information and to preserve the confidentiality thereof.\nSection 4. Return or Destruction of Evaluation Material.\nAt any time upon the written request of Aspect for any reason:\n(a) Receiving Party shall promptly (and in no event later than 15 business days after such request), at its election, either return to Aspect or\ndestroy (in which case, such destruction shall be certified in writing to Aspect by an authorized officer of Receiving Party) all Evaluation Material\n(and all copies thereof) furnished to Receiving Party or its Representatives by or on\n-3-\nbehalf of Aspect and, except as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including\nEvaluation Material stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives, and,\nexcept as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including Evaluation Material\nstored in any computer or other electronic storage device) in whole or in part of such material and such destruction shall be certified in writing to\nAspect by an authorized officer of Receiving Party upon request of Aspect.\nNotwithstanding the foregoing, Receiving Party and any of its Representatives that are accounting firms or financial institutions may retain solely for\ncompliance purposes copies of the Evaluation Material in accordance with policies and procedures implemented by such persons or to comply with\nlaw, regulation or professional standards; provided, however, that any Evaluation Material so retained will continue to be held confidential pursuant\nto the terms of this Agreement under the sole control of the Receiving Party’s or such Representative’s general counsel, as the case may be. With\nregard to destruction of Evaluation Material in electronic form, Receiving Party and its Representatives shall be required to perform customary\n“delete” functions made available by the software vendor for use by the end-user of the relevant software, but the Receiving Party and its\nRepresentatives, as the case may be, shall not be required to delete all electronic copies that may be available, for example in backups or archives, or\nwhich are retrievable using forensic computer recovery techniques. Notwithstanding the return or destruction of Evaluation Material, Receiving\nParty and its Representatives shall continue to be bound by their obligations hereunder.\nSection 5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is 12 months after the Effective Date. Unless otherwise\nexpressly stated herein, the obligations set forth in this Agreement shall continue until the third anniversary of the Effective Date; provided, however,\nthat as to Evaluation Material that is subject to a confidentiality obligation on the part of Aspect that extends beyond the third anniversary of the\nEffective Date, Aspect shall so notify Receiving Party of such extended confidentiality obligation and Aspect shall not disclose such Evaluation\nMaterial to Receiving Party until Receiving Party agrees to abide by the obligations set forth in this Agreement with respect to such Evaluation\nMaterial for the term of Aspect’s confidentiality obligation applicable to such Evaluation Material, in which event the term of this Agreement shall\nbe deemed to be so extended as to such Evaluation Material.\nSection 6. Nonsolicitation.\nFor a period of one year from the Effective Date, neither Receiving Party nor its affiliates shall solicit to employ any person who (i) is, or\nwithin the prior six months was, an officer of Aspect or any of its subsidiaries or (ii) who is, or within the prior six months was, employed in any\ncapacity by Aspect or any of its subsidiaries and with whom Representatives of Receiving Party came in contact or first identified during the process\nof considering a transaction contemplated by this Agreement; provided, however, that this paragraph shall not prevent\n-4-\nReceiving Party or its affiliates from hiring a person identified in clause (i) or (ii) (a “Covered Person”) if: (1) such Covered Person contacts\nReceiving Party or its Representatives on the Covered Person’s own initiative without any direct or indirect solicitation by or encouragement from\nReceiving Party or its Representatives; (2) the personnel of Receiving Party who solicited the Covered Person have no knowledge of any Evaluation\nMaterial and none of the personnel of Receiving Party who have knowledge of any Evaluation Material have actual advance knowledge of such\nsolicitation; (3) such Covered Person responds to a general solicitation of employment not specifically directed towards Aspect or any of its\nsubsidiaries or particular employees of Aspect or any of its subsidiaries or (4) on the date of this Agreement such Covered Person is actively engaged\nin on-going employment discussions with Receiving Party or one of its affiliates outside of the context of the transaction contemplated by this\nAgreement.\nSection 7. Standstill.\nReceiving Party agrees that, for a period of 15 months from the Effective Date, unless a “Significant Event” (as defined below) shall have\noccurred or Receiving Party shall have been specifically invited in writing by Aspect, neither Receiving Party nor any of its affiliates shall in any\nmanner, directly or indirectly:\n(a)\neffect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any\nsecurities (or beneficial ownership thereof) or assets of Aspect; (ii) any tender or exchange offer, merger or other business combination involving\nAspect; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Aspect; or (iv) any\n“solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of Aspect;\n(b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of Aspect;\n(c)\notherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of Aspect;\n(d) take any action that could reasonably be expected to require Aspect to make a public announcement regarding any of the types of\nmatters set forth in paragraph (a) above; or\n(e)\nenter into any discussions or arrangements with any person with respect to any of the foregoing.\nReceiving Party also agrees during such period not to request Aspect (or its Representatives), directly or indirectly, to amend or waive any\nprovision of this section (including this sentence).\nFor purposes of this Agreement, (i) “Significant Event” shall mean any of (A) the acquisition by any person or “13D Group” (as defined\nbelow) (other than Receiving Party or any of its affiliates) of beneficial ownership of “Voting Securities” (as defined below) of Aspect representing\nmore than 30% of the then outstanding Voting Securities of Aspect; (B) the\n-5-\nannouncement or commencement by any person or 13D Group (other than Receiving Party or any of its affiliates) of a tender or exchange offer to\nacquire Voting Securities of Aspect which, if successful, would result in such person or 13D Group owning, when combined with any other Voting\nSecurities of Aspect owned by such person or 13D Group, more than 50% of the then outstanding Voting Securities of Aspect; or (C) the entry into\nby Aspect, or determination by Aspect to seek to enter into, any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of Aspect would be converted into cash or securities of another person or 13D Group or more than 50% of the\nthen outstanding shares of common stock of Aspect would be owned by persons other than the then current holders of shares of common stock\nAspect, or which would result in all or substantially all of Aspect’s assets being sold to any person or 13D Group; (ii) “Voting Securities” shall mean,\nat any time, shares of any class of capital stock of Aspect which are then entitled to vote generally in the election of directors; provided, that for\npurposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of common stock of\nAspect shall be deemed to have been so converted, exchanged or exercised; and (iii) “13D Group” shall mean, with respect to the Voting Securities\nof Aspect, any group of persons formed for the purpose of acquiring, holding, voting or disposing of such Voting Securities which would be required\nunder Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with the SEC as a “person”\nwithin the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting Securities representing more than 5% of the\ntotal combined voting power of all such Voting Securities then outstanding.\nReceiving Party represents and warrants that, as of the date of this Agreement, neither Receiving Party nor any of its controlled or controlling\naffiliates owns, of record or beneficially, any voting securities of Aspect, or any securities convertible into or exercisable for any voting securities of\nAspect.\nSection 8. Trading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who are apprised of a possible transaction between the parties have\nbeen or will be advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company\nobtained directly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nSection 9. No Representations and Warranties; Relationship to Definitive Agreement.\n(a) Receiving Party understands and acknowledges that neither Aspect nor any of its Representatives has made or is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Receiving Party agrees that neither\nAspect nor its Representatives shall have any liability to Receiving Party or any of its Representatives or any other person relating to or resulting\nfrom the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a\ndefinitive agreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will\nhave any legal effect.\n-6-\nFor purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any other preliminary written\nagreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) Receiving Party understands and agrees that no contract or agreement, express or implied, providing for any transaction involving the\nparties shall be deemed to exist unless and until a definitive agreement has been executed and delivered. Receiving Party also agrees that unless and\nuntil a definitive agreement regarding a transaction between the parties has been executed and delivered, Aspect will not be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with\nrespect to such transaction, except for the matters specifically agreed to herein.\n(c) Aspect reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with regard to a transaction\nbetween the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or no reason. Receiving Party\nunderstands that Aspect and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including, without limitation, negotiating with other interested parties and entering into a preliminary or definitive\nagreement without prior notice to Receiving Party or any other person) and that any procedures relating to such process or transaction may be\nchanged at any time without notice to Receiving Party or any other person.\nSection 10. Contacts and Communications.\nReceiving Party agrees that, prior to the date that is 15 months after the Effective Date, all contacts or communications by it or its\nRepresentatives with Aspect regarding a possible transaction between the parties or the Evaluation Material, all requests for additional information,\nfacility tours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted\nor directed only to (i) Aspect’s Chief Executive Officer or (ii) as Aspect shall otherwise instruct in writing. Without the express prior consent of\nAspect, Receiving Party agrees that it will not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent,\ncustomer or business partner of Aspect regarding Evaluation Material or a possible transaction between the parties.\nSection 11. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof.\n(b) Receiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and that\nirreparable damage may result to Aspect if information contained therein or derived therefrom is disclosed to any person except as herein provided\nor is used for any purpose other than the evaluation of a possible negotiated transaction between the parties. Receiving Party further understands and\nagrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or any of\n-7-\nReceiving Party’s Representatives and that Aspect may be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by Receiving Party of this Agreement, but shall be in\naddition to all of Aspect’s other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that Receiving Party has breached this Agreement, then Receiving Party shall be liable for and pay to Aspect the reasonable\nlegal fees and disbursements that Aspect has incurred in connection with such litigation, including any appeal therefrom.\n(c) This Agreement may not be assigned in whole or in part by Receiving Party without the prior written consent of Aspect; provided that\nno such consent shall be required, and this Agreement may be assigned by Receiving Party, in the case of a sale by Receiving Party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay by Aspect in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one business day after it is sent for next business day delivery via a reputable nationwide overnight courier service, in each case to the\nintended recipient as set forth below:\nIf to Aspect:\nAspect Medical Systems, Inc.\nOne Upland Road\nNorwood, MA 02062\nAttention: J. Neal Armstrong\nVice President and Chief Financial Officer\nTelephone: (617) 559-7000\nCopy to:\nWilmer Cutler Pickering Hale and Dorr LLP\n60 State Street\nBoston, MA 02109\nAttn: Susan W. Murley, Esq.\nTelephone: (617) 526-6000\nIf to Receiving Party:\nTyco Healthcare Group LP\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nAttention: Senior Vice President, Strategy & Business Development\nTelephone: (508) 261-8000\nCopy to:\nTyco Healthcare Group LP\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nAttention: Chief Mergers & Acquisitions Counsel\nTelephone: (508) 261-8000\n-8-\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice or other communication shall be deemed duly given unless\nand until the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications\nhereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to\nbe an original and both of which, taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n-9-\nEXECUTED as of the date first above written.\nASPECT MEDICAL SYSTEMS, INC.\nBy:\n/s/ Nassib Chamoun\nName:\nNassib Chamoun\nTitle:\nPresident & CEO\nTYCO HEALTHCARE GROUP LP\nD/B/A COVIDIEN\nBy:\n/s/ Amy McBride-Wendell\nName:\nAmy McBride-Wendell\nTitle:\nSVP Strategy & BD&L\n-10-
07b135b30e301560ecfde236c9311975.pdf	jurisdiction party	EXHIBIT A\nForm Of Waiver, Release, Non-Competition, Non-Solicitation and Non-Disclosure Agreement\nAGREEMENT\nThe following is an agreement (the “Agreement”) made and entered into on this ___ day of\n_____ ______ ______ _, 20__ (the “Effective Date”) by and between David L. Fetherman (“Executive”) and Escalade,\nIncorporated, an Indiana corporation (“Escalade”) regarding Executive’s termination from all positions held by Executive\nwith Escalade and its various subsidiaries and affiliates. Escalade and Executive are sometimes referred to collectively\nas the “parties” and individually as a “party,” and the term “Company” shall mean Escalade and its various subsidiaries\nand affiliates collectively.\nRecitals:\nA. Executive is the Chief Executive Officer and President of Escalade, a Director of Escalade, [and any other\npositions with Escalade] [and any positions as an officer and/or director of various subsidiaries and affiliates of Escalade];\nand\nB. Executive’s employment with the Company [has terminated as of the Effective Date] [will terminate as of\n_____ ______ , 20__] (the “Employment End Date”); and\nC. Executive and the Company are parties to that certain Executive Severance Agreement dated as of\n_____ _____, 2016 (the “Executive Agreement”), which Executive Agreement represents the parties’ mutual agreement\nwith respect to all matters related to Executive’s termination of employment with the Company. All capitalized terms used\nin this Agreement and not defined herein shall have the meaning set forth in the Executive Agreement.\nNOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Company and\nExecutive agree as follows:\n1. Termination. Executive hereby affirms his termination from his positions as Chief Executive Officer and\nPresident of Escalade, as a Director of Escalade, and from all other executive officer and director positions that he holds\nwith Escalade and any of Escalade’s subsidiaries and their affiliates, effective as of the Employment End Date. Executive\nacknowledges and agrees as of the Employment End Date he also retires as a trustee or other administrator of any and\nall Company benefit plans, including without limitation the Company’s retirement plan. Executive and the Company agree\nthat Executive’s resignation as a Director of Escalade is not related to any disagreement between them (other than as\nmay relate to the termination of the Executive’s employment with the Company) that would require disclosure pursuant to\nItem 5.02(a) of Form 8-K or any successor provision thereto.\n13\n2. Compensation and Benefits. Provided that Executive fulfills his obligations as set forth in this Agreement,\nthe Company shall pay to Executive the Severance Benefits payable to him in accordance with the applicable terms of\nSection 4 of the Executive Agreement.\n3. Executive’s Obligations. In consideration of the payments and benefits provided in Section 2 above,\nExecutive will:\n(a) fully cooperate and assist the Company with any litigation matters or regulatory or agency proceedings for\nwhich his testimony or cooperation is requested by Company following the Effective Date, provided that he is reimbursed\nfor any reasonable and necessary expenses incurred as a result of his cooperation and assistance, and further provided\nthat the Company and Executive shall discuss in advance of Executive’s providing any such cooperation and assistance\nthe anticipated time commitment that would likely be required of Executive with respect to any such matter and shall\nmutually determine whether Executive should be compensated for his time and the amount of any such compensation, it\nbeing understood and agreed that if the parties cannot reach agreement as to any such compensation, then the\nCompany shall not request, and Executive shall not be required, to provide cooperation and assistance with respect to\nsuch litigation or proceeding;\n(b) sign all necessary resignations from the boards of directors and/or all other officer, employee and trustee\npositions of the Company, but in any event Executive shall be deemed to have resigned any such executive officer,\ndirector and trustee positions as of the Employment End Date;\n(c) through the Employment End Date, except as provided in clause (d) below, continue to comply with the\nCompany’s Insider Trading Policy, Code of Ethics and all other Company policies and procedures applicable to\nemployees of the Company including, without limitation, no destruction of any documents belonging to or relating to the\nCompany or Executive’s employment with the Company, whether in paper, electronic, digital or any other format, unless\nsuch destruction is approved in advance and observed by an officer of the Company specifically designated and\nauthorized by Escalade’s Board of Directors;\n(d) comply with the Company’s Policy for Recovery of Incentive Compensation through the end of the look\nback period, which look back period shall be deemed to commence on the Employment End Date and continue for three\nyears thereafter;\n(e) comply with all laws relating to the Company’s business and operations as applicable to Executive and\nthe Company; and\n(f) comply with all covenants contained in the Executive Agreement and in this Agreement, including without\nlimitation Sections 4, 5 and 6 hereof.\n4. Mutual Nondisparagement.\n(a) Executive’s Covenant. Beginning on the Effective Date, Executive shall not make, participate in the\nmaking of, or encourage any other person to make, any statements, written or oral, which criticize, disparage, or defame\nthe reputation of, or which embarrass the Company, its subsidiaries and their affiliates or any of their respective present,\nformer or future directors, officers, executives, employees and/or shareholders.\n14\n(b) Company’s Covenant. Beginning on the Effective Date, the Company shall not, and shall instruct the\nmembers of Escalade’s Board of Directors and executive officers not to, make, participate in the making of, or encourage\nany employees or any other person to make, any statements, written or oral, which criticize, disparage, or defame the\nreputation of, or which are intended to embarrass, the Executive.\n5. Confidentiality. Executive understands and agrees that:\n(a) Escalade is required to describe the material terms of this Agreement in a Current Report on Form 8-K to\nbe filed with the Securities and Exchange Commission no later than four (4) business days after this Agreement is signed\nby the Executive and Escalade, and that the Company will attach this Agreement in its entirety as an Exhibit to such\npublic filing;\n(b) Executive has been through the Employment End Date in the course of employment with the Company\nentrusted with or obtained access to information proprietary to the Company with respect to the following (all of which\ninformation is referred to hereinafter collectively as the "Information"): the organization and management of the\nCompany; the names, addresses, buying habits, and other special information regarding past, present and potential\ncustomers, employees and suppliers of the Company; customer and supplier contracts and transactions or price lists of\nthe Company and their suppliers; products, services, programs and processes sold, licensed or developed by the\nCompany; technical data, plans and specifications, present and/or future development projects of the Company; financial\nand/or marketing data respecting the conduct of the present or future phases of business of the Company; computer\nprograms, systems and/or software; ideas, inventions, trademarks, trade secrets, business information, know-how,\nprocesses, improvements, designs, redesigns, discoveries and developments of the Company; and other information\nconsidered confidential by any of the Company or its customers or suppliers. At all times through the Employment End\nDate and thereafter, Executive agrees to retain the Information in absolute confidence and not to disclose the Information\nto any person or organization except as required in the performance of Executive's duties for the Company as provided in\nthis Agreement, without the express written consent of the Company; provided that Executive’s obligation of\nconfidentiality shall not extend to any Information which becomes generally available to the public other than as a result\nof disclosure by Executive;\n(c) Executive and the Company agree that effective no later than __ days following {length of time will\ndepend upon information that Executive may have at the time of termination} the Employment End Date, Executive will\nno longer be privy to material, non-public information regarding the Company. Accordingly, the Company agrees that\nExecutive shall not be subject to the Company’s Insider Trading Policy thereafter, provided, however, that if and to the\nextent that Executive may from time to time acquire knowledge of material, non-public information regarding the\nCompany, Executive acknowledges and agrees that he may not trade based upon such information and must comply\nwith all applicable laws prohibiting insider trading. The Company further agrees that it will not intentionally provide\nmaterial, non-public information to Executive following the Employment End Date except in connection with such events,\nactions or circumstances that would require stockholder approval and the Company has made a good faith determination\nthat it is necessary and appropriate to disclose such information to Executive given his then current ownership of\nEscalade common stock, and that the Company will use its reasonable best efforts to prevent any inadvertent disclosures\nof material, non-public information to Executive;\n15\n(d) Notwithstanding the foregoing, in the event that the Executive is requested or required by law, regulatory\nauthority or other applicable judicial or governmental order to disclose any Information, the Executive will provide the\nCompany with prompt notice of any such request or requirement (if legally permissible) so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement with respect to\nnon-disclosure of such Information. In the event that such protective order or other remedy is not obtained, or that the\nCompany waives compliance with the terms hereof as set forth above, the Executive may disclose only that portion of the\nInformation which is legally required; and\n(e) On or promptly following the Employment End Date, Executive will return all Company issued electronic\ndevices (including without limitation, laptops, smart phone, tablets, and similar devices) and Company information to the\nCompany, will no longer access any Escalade data processing or information systems, and will allow the Company to\ninspect any and all electronic devices, whether owned by the Company or Executive, to delete any and all Company data\nand access to Company systems from such devices.\n6. Covenant Not to Compete, No Interference; No Solicitation. At all times through the twelfth month following\nthe Employment End Date (or if this period is unenforceable by law, then for such shorter period as shall be enforceable):\n(a) Executive will not engage in any business offering products or services related to the current business of\nthe Company, whether as a principal, partner, joint venture, agent, employee, salesman, consultant, director or officer,\nwhere such business or business activity is in competition with the Company in any geographic market where the\nCompany does business; provided, however, that Executive shall not be prohibited from performing services for a\nsubsidiary or division of a competitive business, as long as (i) such subsidiary or division is not in competition with the\nCompany, (ii) the revenues of the competitive business relating to its products and services that are in competition with\nthe Company constitute five percent (5%) or less of its total revenues, and (iii) the Executive abides by all other\nprovisions of this Agreement including without limitation Sections 4, 5, 6(b) and 6(c);\n(b) Executive will not interfere with or adversely affect, either directly or indirectly, the Company’s\nrelationships with any person, firm, association, corporation or other entity which is known by Executive to be, or is\nincluded on any listing to which Executive had access during the course of his employment as a customer, client,\nsupplier, consultant or employee of the Company, and Executive will not divert or change, or attempt to divert or change,\nany such relationship to the detriment of the Company or to the benefit of any other person, firm, association, corporation\nor other entity; and\n16\n(c) Executive will not induce, seek to induce or participate directly or indirectly with any third party in seeking\nto induce, any other employee of the Company to terminate his or her employment relationship with the Company,\nprovided, however, that this restriction shall not prohibit Executive from hiring any employee who seeks employment from\nExecutive or any third party with whom Executive may be employed or affiliated with in the future on an unsolicited basis\nas long as such employment is not in competition with any business or operations of the Company.\nExecutive acknowledges and agrees that the covenants, restrictions, agreements, and obligations set forth\nherein are founded upon valuable consideration, and, with respect to the covenants, restrictions, agreements, and\nobligations set forth in this Section 6 are reasonable in duration and geographic scope. The time period and geographical\narea set forth in this Section 6 are each divisible and separable, and, in the event that the covenants not to compete\nand/or not to divert business or employees contained therein are judicially held invalid or unenforceable as to such time\nperiod and/or geographical area, they will be valid and enforceable in such geographical area(s) and for such time\nperiod(s) which the court determines to be reasonable and enforceable. Executive agrees that in the event that any court\nof competent jurisdiction determines that the above covenants are invalid or unenforceable to join with the Company in\nrequesting such court to construe the applicable provision by limiting or reducing it so as to be enforceable to the extent\ncompatible with the then applicable law. Furthermore, it is agreed that any period of restriction or covenant hereinabove\nstated shall not include any period of violation or period of time required for litigation or arbitration to enforce such\nrestrictions or covenants.\n7. Tax Liability; Tax Withholding. Executive acknowledges and agrees that he is responsible for the payment of\nall taxes relating to the consideration to be provided to him as contemplated by this Agreement, including the payment of\nany taxes relating to his exercise of stock options and his receipt of any stock, cash or other consideration relating to any\nother equity incentive awards he may have received from the Company. Notwithstanding any other provision of this\nAgreement, the Company will withhold from any amounts payable under this Agreement, or any other benefits received\npursuant hereto, such federal, state and/or local taxes as shall be required to be withheld under any applicable law or\nregulation.\n8. No Mitigation; No Offset. In no event shall Executive be obligated to seek other employment or to take any\nother action that would mitigate the amounts payable to Executive under this Agreement. In the event that Executive\nwould obtain subsequent employment, the Company may not offset any compensation or other amounts earned by\nExecutive from such subsequent employment or engagement of his services against the Executive’s entitlements under\nthis Agreement. Moreover, subject to Executive’s compliance with the covenants set forth in Sections 4, 5 and 6 of this\nAgreement, Executive shall be free to pursue any unsolicited, non-competitive opportunities for employment or services\nas may arise from the Company’s customers, vendors, employees and affiliates.\n17\n9. Section 16 Reports. Executive and the Company agree that notwithstanding Executive’s termination as an\nexecutive officer and a director of Escalade as of the Employment End Date, Executive may continue to be subject to the\nreporting requirements of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations\nthereunder for up to six months following the Employment End Date. Accordingly, Executive agrees to provide timely\nnotice to Escalade’s chief financial officer of all transactions undertaken by Executive in Escalade common stock,\nincluding the purchase or sale of any shares of Escalade common stock and the exercise of any stock options, during the\nsix month period following the Employment End Date, and the Company shall prepare and file the appropriate Section 16\nreports with the Securities and Exchange Commission on behalf of Executive. Upon the conclusion of such six month\nperiod, the Company acknowledges that Executive will no longer be deemed an affiliate of the Company and, absent\nExecutive being in possession of material, non-public information concerning the Company, may freely engage in trades\nof Escalade securities.\n10. Remedies.\n(a) Arbitration; Submission to Jurisdiction. Any dispute that may arise between the Company and\nExecutive relating to this Agreement and the subject matter hereof shall be settled by binding arbitration in accordance\nwith Section 9 of the Executive Agreement.\n(b) Injunctive Relief. Executive agrees that in the event of any actual or threatened breach by him of any of\nthe provisions contained in this Agreement, including those covenants specifically set forth in Sections 3, 4, 5 and 6\nhereof, the Company shall be entitled to seek immediate temporary injunctive and other equitable relief, without the\nnecessity of showing actual monetary damages, subject to hearing as soon thereafter as possible. In the event of such\ninjunctive relief, the periods of time referred to in Sections 5 and 6 shall be deemed extended for a period equal to the\nrespective period during which Employee is in breach thereof, in order to provide for injunctive relief and specific\nperformance for a period equal to the full term thereof and the Company shall be entitled to cease its obligations to\nExecutive pursuant to Section 2. In the event that the Company breaches its obligations to make payments and to\nprovide the benefits specified in Section 2 hereof, Executive may seek specific performance in addition to monetary\ndamages and Executive will not be subject to the provisions of Section 4, 5 or 6 hereof. Nothing contained herein shall be\nconstrued as prohibiting Executive or the Company from pursuing any other remedies available to it for such breach or\nthreatened breach, including the recovery of any damages which it is able to prove.\n18\n11. Mutual Release. In consideration of the payments and benefits set forth in this Agreement, such payments\nand benefits being good and valuable consideration:\n(a) Release by Executive. Subject to Section 10(b), Executive, on his own behalf and on behalf of his heirs,\nadministrators, executors, successors, assigns and personal representatives, covenants not to sue and hereby fully and\nforever releases, acquits and discharges the Company, its shareholders, directors, officers, employees, agents,\nrepresentatives, insurance carriers, and their successors and assigns (collectively the “Releasees”), from any and all\nclaims, demands, actions and causes of action of every kind, nature or description (collectively “claims”) that Executive\nmay have had, may now have, or may hereafter have against Releasees, including without limitation any and all claims in\nany way related to or based upon Executive’s employment with the Company through the Effective Date and/or the\ncessation of Executive’s service as an employee, executive officer and director of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder any federal or state statute or law or local ordinance, including but not limited to: the Age Discrimination in\nEmployment Act as amended (“ADEA”); Older Workers’ Benefit Protection Act (“OWBPA”); Americans with Disabilities\nAct (“ADA”) as amended; the Family and Medical Leave Act (“FMLA”); Title VII of the Civil Rights Act of 1964; the Civil\nRights Acts of 1991; the Employee Retirement Income Security Act (“ERISA”); 42 U.S .C. § 1981; 29 U.S .C . § 206(d)(1);\nSection 503 and 504 of the Rehabilitation Disabilities Act; the WARN Act; Indiana’s fair employment practices statutes;\nany other federal, state or local law dealing with employment discrimination; and any federal or state “Whistleblower” law,\nexisting as of the date of this Agreement. Provided, however, that if the Company were to breach this Agreement, this\nrelease would not bar an action by Executive against the Company to enforce its term(s) or any applicable law. In\naddition, this Section 11(a) shall not affect adversely any benefits to which Executive may be entitled arising out of any\nsocial security, workers' compensation or unemployment laws, or under the terms of any employee pension or welfare or\nbenefit plans or programs of the Company, which may be payable now or in the future to Executive.\n(b) Acknowledgements by Executive. Executive specifically acknowledges and agrees that: (i) Executive is\nwaiving claims under the foregoing laws, including specifically the ADEA and the OWBPA; (ii) this waiver of any rights or\nclaims is knowing and voluntary; (iii) this Agreement is written in a manner that Executive understands; (iv) the Company\nhas hereby advised Executive to consult with an attorney before executing this Agreement and that Executive has so\nconsulted; (v) the waiver of rights under Section 11(a) does not waive rights or claims arising after the date of this\nAgreement; (vi) Executive has been given a period of 21 days within which to consider this Agreement; (vii) for a period\nof seven days following Executive’s execution of this Agreement, Executive may revoke this Agreement and this\nAgreement will not become enforceable or effective until the revocation period expires; and (viii) the waiver of rights in\nSection 11(a) is in exchange for consideration in addition to anything of value to which Executive was already entitled to\nreceive.\n(c) Release by the Company. Subject to Section 10(b), the Company, on behalf of itself and its successors\nand assigns, covenants not to sue and hereby fully and forever releases, acquits and discharges Executive and his\nsuccessors and assigns, from any and all claims, demands, actions and causes of action of every kind, nature or\ndescription (collectively “claims”) that the Company may have had, may now have, or may hereafter have against\nExecutive, including without limitation any and all claims in any way related to or based upon Executive’s employment\nwith the Company, its subsidiaries and affiliates through the Effective Date and/or the cessation of Executive’s service as\nan executive officer or director of the Company, including without limitation any claims for breach of contract, implied\ncontract, promissory estoppel, tortious conduct or claims arising under any federal or state statute or law or local\nordinance, existing as of the date of this Agreement. Provided, however, that if Executive were to breach this Agreement,\nthis release would not bar an action by the Company against Executive to enforce its term(s) or any applicable laws. In\naddition, this Section 11(c) shall not bar any action by the Company against Executive to enforce the terms of the\nCompany’s Policy for Recovery of Incentive Compensation and/or Section 5(b) of the Executive Agreement.\n19\n(d) Unknown Claims. This Agreement covers both claims that Executive and/or the Company know about\nand those that Executive and/or the Company may not know about. The parties hereto expressly waive all rights afforded\nby any statute that limits the effect of a release with respect to unknown claims, except as to any claims that Executive\nmay have as contemplated by the last two sentences of Section 11(b) or that Company may have as contemplated by\nthe last two sentences of Section 11(c). Each of Executive and the Company understand the significance of its respective\nrelease of unknown claims and the waiver of statutory protection against a release of unknown claims. However, this\nrelease shall not apply to any claim based on the fraud or intentional misconduct of the other party or to any act that is\ndetermined to be a criminal act under any federal, state or local law committed or perpetrated by Executive or the\nCompany at any time prior to and through the Effective Date. Neither Executive nor the Company, based on the\nknowledge of Escalade’s Board of Directors and of the Company’s executive officers other than Executive, is currently\naware of any fraud or intentional misconduct of the other party to this Agreement.\n(e) Future Claims Related to Employee and/or Shareholder Status. Notwithstanding any provision of this\nSection 11 that may be construed to the contrary, Executive and the Company agree that neither Executive nor the\nCompany waive or release the other party hereto from any claim that may arise based on events occurring after the\nEffective Date. Executive and the Company further agree that Executive may not, based upon Executive’s status as a\nshareholder of the Company, assert any claim subsequent to the Effective Date against the Company or any Releasees\nrelating to any potential claim or matter that is the subject of or is otherwise covered by the release granted by Executive\nin this Agreement or is in any way related to the event of Executive’s retirement from or cessation of employment with the\nCompany.\n(f) Additional Release. If the Employment End Date is a date later than the Effective Date, and provided\nthat Executive has signed and delivered on or promptly after the Employment End Date an additional general release\nsubstantially identical in form and substance to the release set forth in this Section 11 (the “Additional Release”) relating\nto claims arising or that may arise from events on and after the Effective Date through the Employment End Date (the\n“Continuing Employment Period”), which Additional Release by its terms has become effective and is in material\ncompliance with the terms of this Agreement, the Company further releases Executive, his successors and assigns from\nany and all claims, demands, actions and causes of action of every kind, nature or description (collectively “claims”) that\nthe Company have had, may now have, or may hereafter have against Executive, including without limitation any and all\nclaims in any way related to or based upon Executive’s employment with the Company during the Continuing\nEmployment Period and/or the cessation of Executive’s service as an employee of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder federal or state statute or law or local ordinance, existing as of the date of this Agreement and the Company shall\nsign and deliver at such time a general release to such effect identical in form and substance to the release contained\nherein, provided, however, that if either party were to breach this Agreement, such further release would not bar an\naction by the non-breaching party against the breaching party to enforce its terms or any applicable laws nor would such\nrelease cover any action based on a claim excluded from the release by Section 11(d).\n20\n12. Future Service as Employee, Executive Officer or Director. Executive agrees that his termination as an\nemployee, executive officer and director of the Company is irrevocable, and that the Company shall have no obligation\nwhatsoever to rehire, reappoint or elect Executive to any such officer, director or other position with the Company.\nExecutive further agrees that if he would seek any such position and is not so hired, nominated, appointed or elected,\nExecutive will not bring a claim against the Company and/or any Releasee for refusal to so hire, nominate, appoint or\nelect.\n13. Binding Effect; Authority. This Agreement shall bind the Executive’s heirs, executors, administrators,\npersonal representatives, spouse, dependents, successors and assigns. Escalade represents and warrants to Executive\nthat the individual signing this Agreement on behalf of the Company is duly authorized to enter into this Agreement and to\nbind the Company hereunder.\n14. Non-Admission. This Agreement shall not be construed as an admission by either party of any wrongdoing\nor any violation of any federal, state or local law, regulation or ordinance, and the parties specifically disclaim any\nwrongdoing or violation.\n15. Assignability. Neither this Agreement, nor any right or interest hereunder, shall be assignable by\nExecutive, his beneficiaries or legal representatives, without the prior written consent of an executive officer of Escalade.\n16. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the\nsubject matter hereof and supersedes any other written or oral promises concerning the subject matter of this Agreement\nexcept as expressly stated otherwise herein or except as expressly stated otherwise in the Executive Agreement. The\nterms of this Agreement may not be modified other than in a writing signed by the parties.\n17. Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by the laws of\nthe State of Indiana without giving effect to provisions thereof regarding conflict of laws.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall\nconstitute an original and all of which shall together constitute one and the same instrument.\nIn Witness Whereof, the parties have entered into this Agreement as of this __ day of _______, 20__.\n_____ ______ ______ ______ ______\nDavid L. Fetherman\n21\nESCALADE, INCORPORATED\nBy:\n_____ ______ ______ ______ _\nName:\n_____ ______ ______ _____\nTitle:\n_____ ______ ______ ______\n22	EXHIBIT A\nForm Of Waiver, Release, Non-Competition, Non-Solicitation and Non-Disclosure Agreement\nAGREEMENT\nThe following is an agreement (the “Agreemen ”) made and entered into on this ___ day of\n__________________ , 20__ (the “Effective Date”) by and between David L. Fetherman (“Executive”) and Escalade,\nIncorporated, an Indiana corporation (“E scaIade”) regarding Executive's termination from all positions held by Executive\nwith Escalade and its various subsidiaries and affiliates. Escalade and Executive are sometimes referred to collectively\nas the “parties”and individually as a "W and the term “Company” shall mean Escalade and its various subsidiaries\nand affiliates collectively.\nRLitalsr\nA. Executive is the Chief Executive Officer and Presidentof Escalade, a Director of Escalade, [and any other\npositions with Escalade] [and any positions as an officer and/or director of various subsidiaries and affiliates of Escalade];\nand\nB. Executive's employment with the Company [has terminated as of the Effective Date] [will terminate as of\n___________ , 20__] (the “E mployment End Date”); and\nC. Executive and the Company are parties to that certain Executive Severance Agreement dated as of\n__________ , 2016 (the “Executive Agreemen ”), which Executive Agreement represents the parties' mutual agreement\nwith respect to all matters related to Executive's termination of employment with the Company. All capitalized terms used\nin this Agreement and not defined herein shall have the meaning set forth in the Executive Agreement.\nNOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Company and\nExecutive agree as follows:\n1. Termination. Executive hereby affirms his termination from his positions as Chief Executive Officer and\nPresident of Escalade, as a Director of Escalade, and from all other executive officer and director positions that he holds\nwith Escalade and any of Escalade's subsidiaries and their affiliates, effective as of the Employment End Date. Executive\nacknowledges and agrees as of the Employment End Date he also retires as a trustee or other administrator of any and\nall Company benefit plans, including without limitation the Company's retirement plan. Executive and the Company agree\nthat Executive's resignation as a Director of Escalade is not related to any disagreement between them (otherthan as\nmay relate to the termination ofthe Executive's employment with the Company) that would require disclosure pursuant to\nItem 5.02(a) of Form 8-K or any successor provision thereto.\n13\n2. Compensation and Benefits. Provided that Executive fulfills his obligations as set forth in this Agreement,\nthe Company shall pay to Executive the Severance Benefits payable to him in accordance with the applicable terms of\nSection 4 of the Executive Agreement.\n3. Executive's Obligations. In consideration of the payments and benefits provided in Section 2 above,\nExecutive will:\n(a) fully cooperate and assistthe Company with any litigation matters or regulatory or agency proceedings for\nwhich his testimony or cooperation is requested by Company following the Effective Date, provided that he is reimbursed\nfor any reasonable and necessary expenses incurred as a result of his cooperation and assistance, and further provided\nthatthe Company and Executive shall discuss in advance of Executive's providing any such cooperation and assistance\nthe anticipated time commitment that would likely be required of Executive with respect to any such matter and shall\nmutually determine whether Executive should be compensated for his time and the amount of any such compensation, it\nbeing understood and agreed that if the parties cannot reach agreement as to any such compensation, then the\nCompany shall not request, and Executive shall not be required, to provide cooperation and assistance with respectto\nsuch litigation or proceeding;\n(b) sign all necessary resignations from the boards of directors and/or all other officer, employee and trustee\npositions of the Company, but in any event Executive shall be deemed to have resigned any such executive officer,\ndirector and trustee positions as of the Employment End Date;\n(c) through the Employment End Date, except as provided in clause (d) below, continue to comply with the\nCompany's Insider Trading Policy, Code of Ethics and all other Company policies and procedures applicable to\nemployees of the Company including, without limitation, no destruction of any documents belonging to or relating to the\nCompany or Executive's employment with the Company, whether in paper, electronic, digital or any otherformat, unless\nsuch destruction is approved in advance and observed by an officer ofthe Company specifically designated and\nauthorized by Escalade's Board of Directors;\n(d) comply with the Company's Policy for Recovery of Incentive Compensation through the end of the look\nback period, which look back period shall be deemed to commence on the Employment End Date and continue for three\nyears thereafter;\n(e) comply with all laws relating to the Company's business and operations as applicable to Executive and\nthe Company; and\n(f) comply with all covenants contained in the Executive Agreement and in this Agreement, including without\nlimitation Sections 4, 5 and 6 hereof.\n4. M utual N ondisparagement.\n(a) Executive's Covenant. Beginning on the Effective Date, Executive shall not make, participate in the\nmaking of, or encourage any other person to make, any statements, written or oral, which criticize, disparage, or defame\nthe reputation of, or which embarrass the Company, its subsidiaries and their affiliates or any of their respective present,\nformer or future directors, officers, executives, employees and/or shareholders.\n14\n(b) Company's Covenant. Beginning on the Effective Date, the Company shall not, and shall instruct the\nmembers of Escalade's Board of Directors and executive officers notto, make, participate in the making of, or encourage\nany employees or any other person to make, any statements, written or oral, which criticize, disparage, or defame the\nreputation of, or which are intended to embarrass, the Executive.\n5. Confidentiality. Executive understands and agrees that:\n(a) Escalade is required to describe the material terms of this Agreement in a Current Report on Form 8-K to\nbe filed with the Securities and Exchange Commission no laterthan four (4) business days afterthis Agreement is signed\nby the Executive and Escalade, and that the Company will attach this Agreement in its entirety as an Exhibit to such\npublic filing;\n(b) Executive has been through the Employment End Date in the course of employment with the Company\nentrusted with or obtained access to information proprietary to the Company with respect to the following (all of which\ninformation is referred to hereinafter collectively as the "|nformation"): the organization and management of the\nCompany; the names, addresses, buying habits, and other special information regarding past, present and potential\ncustomers, employees and suppliers of the Company; customer and supplier contracts and transactions or price lists of\nthe Company and their suppliers; products, services, programs and processes sold, licensed or developed by the\nCompany; technical data, plans and specifications, present and/orfuture development projects of the Company; financial\nand/or marketing data respecting the conduct ofthe present orfuture phases of business of the Company; computer\nprograms, systems and/or software; ideas, inventions, trademarks, trade secrets, business information, know-how,\nprocesses, improvements, designs, redesigns, discoveries and developments of the Company; and other information\nconsidered confidential by any of the Company or its customers or suppliers. At all times through the Employment End\nDate and thereafter, Executive agrees to retain the Information in absolute confidence and not to disclose the Information\nto any person or organization exceptas required in the performance of Executive's duties forthe Company as provided in\nthis Agreement, withoutthe express written consent of the Company; provided that Executive's obligation of\nconfidentiality shall not extend to any Information which becomes generally available to the public otherthan as a result\nof disclosure by Executive;\n(c) Executive and the Company agree that effective no laterthan __ days following {length of time will\ndepend upon information that Executive may have at the time of termination}the Employment End Date, Executive will\nno longer be privy to material, non-public information regarding the Company. Accordingly, the Company agrees that\nExecutive shall not be subject to the Company's Insider Trading Policy thereafter, provided, however, that if and to the\nextent that Executive may from time to time acquire knowledge of material, non-public information regarding the\nCompany, Executive acknowledges and agrees that he may not trade based upon such information and mustcomply\nwith all applicable laws prohibiting insider trading. The Company further agrees that it will not intentionally provide\nmaterial, non-public information to Executive following the Employment End Date except in connection with such events,\nactions or circumstances that would require stockholder approval and the Company has made a good faith determination\nthat it is necessary and appropriate to disclose such information to Executive given his then current ownership of\nEscalade common stock, and thatthe Company will use its reasonable bestefforts to preventany inadvertentdisclosures\nof material, non-public information to Executive;\n15\n(d) Notwithstanding the foregoing, in the event thatthe Executive is requested or required by law, regulatory\nauthority or other applicable judicial or governmental order to disclose any Information, the Executive will provide the\nCompany with prompt notice of any such request or requirement (if legally permissible) so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement with respectto\nnon-disclosure of such Information. In the event that such protective order or other remedy is not obtained, orthat the\nCompany waives compliance with the terms hereof as set forth above, the Executive may disclose only that portion of the\nInformation which is legally required; and\n(e) On or promptly following the Employment End Date, Executive will return all Company issued electronic\ndevices (including without limitation, laptops, smart phone, tablets, and similar devices) and Company information to the\nCompany, will no longer access any Escalade data processing or information systems, and will allow the Company to\ninspect any and all electronic devices, whether owned by the Company or Executive, to delete any and all Company data\nand access to Company systems from such devices.\n6. Covenant Not to Compete, No Interference; No Solicitation. At all times through the twelfth month following\nthe Employment End Date (or if this period is unenforceable bylaw, then for such shorter period as shall be enforceable):\n(a) Executive will notengage in any business offering products or services related to the current business of\nthe Company, whether as a principal, partner, joint venture, agent, employee, salesman, consultant, director or officer,\nwhere such business or business activity is in competition with the Company in any geographic market where the\nCompany does business; provided, however, that Executive shall not be prohibited from performing services fora\nsubsidiary or division ofa competitive business, as long as (i) such subsidiary or division is not in competition with the\nCompany, (ii) the revenues of the competitive business relating to its products and services thatare in competition with\nthe Company constitute five percent (5%) or less of its total revenues, and (iii) the Executive abides by all other\nprovisions of this Agreement including without limitation Sections 4, 5, 6(b) and 6(c);\n(b) Executive will not interfere with or adversely affect, either directly or indirectly, the Company's\nrelationships with any person, firm, association, corporation or other entity which is known by Executive to be, or is\nincluded on any listing to which Executive had access during the course of his employmentas a customer, client,\nsupplier, consultant or employee of the Company, and Executive will not divert or change, or attempt to divert or change,\nany such relationship to the detriment of the Company orto the benefit of any other person, firm, association, corporation\nor other entity; and\n16\n(c) Executive will not induce, seek to induce or participate directly or indirectly with any third party in seeking\nto induce, any other employee of the Company to terminate his or her employment relationship with the Company,\nprovided, however, that this restriction shall not prohibit Executive from hiring any employee who seeks employment from\nExecutive or any third party with whom Executive may be employed or affiliated with in the future on an unsolicited basis\nas long as such employment is not in competition with any business or operations of the Company.\nExecutive acknowledges and agrees thatthe covenants, restrictions, agreements, and obligations set forth\nherein are founded upon valuable consideration, and, with respect to the covenants, restrictions, agreements, and\nobligations setforth in this Section 6 are reasonable in duration and geographic scope. The time period and geographical\narea set forth in this Section 6 are each divisible and separable, and, in the event thatthe covenants not to compete\nand/or not to divert business or employees contained therein are judicially held invalid or unenforceable as to such time\nperiod and/or geographical area, they will be valid and enforceable in such geographical area(s) and for such time\nperiod(s) which the court determines to be reasonable and enforceable. Executive agrees that in the event that any court\nof competentjurisdiction determines that the above covenants are invalid or unenforceable to join with the Company in\nrequesting such courtto construe the applicable provision by limiting or reducing it so as to be enforceable to the extent\ncompatible with the then applicable law. Furthermore, it is agreed that any period of restriction or covenant hereinabove\nstated shall not include any period of violation or period of time required for litigation or arbitration to enforce such\nrestrictions or covenants.\n7. Tax Liability; Tax Withholding. Executive acknowledges and agrees that he is responsible forthe payment of\nall taxes relating to the consideration to be provided to him as contemplated by this Agreement, including the payment of\nany taxes relating to his exercise of stock options and his receipt of any stock, cash or other consideration relating to any\nother equity incentive awards he may have received from the Company. Notwithstanding any other provision of this\nAgreement, the Company will withhold from any amounts payable under this Agreement, or any other benefits received\npursuant hereto, such federal, state and/or local taxes as shall be required to be withheld under any applicable law or\nregulation.\n8. No Mitigation; No Offset. In no event shall Executive be obligated to seek other employment orto take any\nother action that would mitigate the amounts payable to Executive underthis Agreement. In the event that Executive\nwould obtain subsequent employment, the Company may not offset any compensation or other amounts earned by\nExecutive from such subsequent employment or engagement of his services againstthe Executive's entitlements under\nthis Agreement. Moreover, subject to Executive's compliance with the covenants set forth in Sections 4, 5 and 6 of this\nAgreement, Executive shall be free to pursue any unsolicited, non-competitive opportunities for employment or services\nas may arise from the Company's customers, vendors, employees and affiliates.\nl7\n9. Section 16 Reports. Executive and the Company agree that notwithstanding Executive's termination as an\nexecutive officer and a director of Escalade as of the Employment End Date, Executive may continue to be subjectto the\nreporting requirements of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations\nthereunder for up to six months following the Employment End Date. Accordingly, Executive agrees to provide timely\nnotice to Escalade's chief financial officer ofall transactions undertaken by Executive in Escalade common stock,\nincluding the purchase or sale of any shares of Escalade common stock and the exercise of any stock options, during the\nsix month period following the Employment End Date, and the Company shall prepare and file the appropriate Section 16\nreports with the Securities and Exchange Commission on behalf of Executive. Upon the conclusion of such six month\nperiod, the Company acknowledges that Executive will no longer be deemed an affiliate of the Company and, absent\nExecutive being in possession of material, non-public information concerning the Company, may freely engage in trades\nof Escalade securities.\n10. Remedies.\n(a) Arbitration; Submission to | urisdiction. Any dispute that may arise between the Company and\nExecutive relating to this Agreement and the subject matter hereof shall be settled by binding arbitration in accordance\nwith Section 9 of the Executive Agreement.\n(b) lniunctive Relief. Executive agrees that in the event of any actual orthreatened breach by him of any of\nthe provisions contained in this Agreement, including those covenants specifically set forth in Sections 3, 4, 5 and 6\nhereof, the Company shall be entitled to seek immediate temporary injunctive and other equitable relief, without the\nnecessity ofshowing actual monetary damages, subjectto hearing as soon thereafter as possible. In the event ofsuch\ninjunctive relief, the periods of time referred to in Sections 5 and 6 shall be deemed extended fora period equal to the\nrespective period during which Employee is in breach thereof, in orderto provide for injunctive reliefand specific\nperformance for a period equal to the full term thereof and the Company shall be entitled to cease its obligations to\nExecutive pursuantto Section 2. In the event thatthe Company breaches its obligations to make payments and to\nprovide the benefits specified in Section 2 hereof, Executive may seek specific performance in addition to monetary\ndamages and Executive will not be subjectto the provisions ofSection 4, 5 or6 hereof. Nothing contained herein shall be\nconstrued as prohibiting Executive or the Company from pursuing any other remedies available to it for such breach or\nthreatened breach, including the recovery ofany damages which it is able to prove.\n18\n11. Mutual Release. In consideration of the payments and benefits set forth in this Agreement, such payments\nand benefits being good and valuable consideration:\n(a) Release by Executive. Subjectto Section 10(b), Executive, on his own behalfand on behalfof his heirs,\nadministrators, executors, successors, assigns and personal representatives, covenants not to sue and hereby fully and\nforever releases, acquits and discharges the Company, its shareholders, directors, officers, employees, agents,\nrepresentatives, insurance carriers, and their successors and assigns (collectively the “Releasees”), from any and all\nclaims, demands, actions and causes ofaction of every kind, nature or description (collectively “claims”) that Executive\nmay have had, may now have, or may hereafter have against Releasees, including without limitation any and all claims in\nany way related to or based upon Executive's employment with the Company through the Effective Date and/orthe\ncessation of Executive's service as an employee, executive officer and director of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder any federal or state statute or law or local ordinance, including but not limited to: the Age Discrimination in\nEmploymentAct as amended (“ADEA”); Older Workers' Benefit Protection Act (“OWBPA”); Americans with Disabilities\nAct (“ADA”) as amended; the Family and Medical Leave Act (“FMLA”); Title VII of the Civil Rights Act of 1964; the Civil\nRights Acts of 1991; the Employee Retirement Income Security Act (“ERlSA”); 42 U.S.C.§ 1981; 29 U.S.C.§ 206(d)(1);\nSection 503 and 504 of the Rehabilitation Disabilities Act; the WARN Act; Indiana's fair employment practices statutes;\nany otherfederal, state or local law dealing with employment discrimination; and any federal or state 'Whistleblower” law,\nexisting as of the date of this Agreement. Provided, however, that if the Company were to breach this Agreement, this\nrelease would not bar an action by Executive againstthe Company to enforce its term(s) or any applicable law. In\naddition, this Section 11(a) shall not affect adversely any benefits to which Executive may be entitled arising out of any\nsocial security, workers' compensation or unemployment laws, or under the terms of any employee pension or welfare or\nbenefit plans or programs of the Company, which may be payable now or in the future to Executive.\n(b) Acknowledgements by Executive. Executive specifically acknowledges and agrees that: (i) Executive is\nwaiving claims underthe foregoing laws, including specifically the ADEA and the OWBPA; (ii) this waiver of any rights or\nclaims is knowing and voluntary; (iii) this Agreement is written in a mannerthat Executive understands; (iv) the Company\nhas hereby advised Executive to consult with an attorney before executing this Agreement and that Executive has so\nconsulted; (v) the waiver of rights under Section 11(a) does not waive rights or claims arising after the date of this\nAgreement; (vi) Executive has been given a period of 21 days within which to considerthis Agreement; (vii) for a period\nof seven days following Executive's execution of this Agreement, Executive may revoke this Agreement and this\nAgreement will not become enforceable or effective until the revocation period expires; and (viii) the waiver of rights in\nSection 11(a) is in exchange for consideration in addition to anything of value to which Executive was already entitled to\nreceive.\n(c) Release by the Company. Subjectto Section 10(b), the Company, on behalfof itselfand its successors\nand assigns, covenants not to sue and hereby fully and forever releases, acquits and discharges Executive and his\nsuccessors and assigns, from any and all claims, demands, actions and causes of action of every kind, nature or\ndescription (collectively “claims”) that the Company may have had, may now have, or may hereafter have against\nExecutive, including without limitation any and all claims in any way related to or based upon Executive's employment\nwith the Company, its subsidiaries and affiliates through the Effective Date and/or the cessation of Executive's service as\nan executive officer or director of the Company, including without limitation any claims for breach of contract, implied\ncontract, promissory estoppel, tortious conduct or claims arising under any federal or state statute or law or local\nordinance, existing as of the date of this Agreement. Provided, however, that if Executive were to breach this Agreement,\nthis release would not bar an action by the Company against Executive to enforce its term(s) or any applicable laws. In\naddition, this Section 11(c) shall not bar any action by the Company against Executive to enforce the terms of the\nCompany's Policy for Recovery of Incentive Compensation and/or Section 5(b) of the Executive Agreement.\n19\n(d) Unknown Claims. This Agreement covers both claims that Executive and/orthe Company know about\nand those that Executive and/orthe Company may not know about. The parties hereto expressly waive all rights afforded\nby any statute that limits the effect of a release with respect to unknown claims, except as to any claims that Executive\nmay have as contemplated by the lasttwo sentences ofSection 11(b) orthatCompany may have as contemplated by\nthe lasttwo sentences of Section 11(c). Each of Executive and the Company understand the significance of its respective\nrelease of unknown claims and the waiver of statutory protection against a release of unknown claims. However, this\nrelease shall not apply to any claim based on the fraud or intentional misconduct of the other party orto any actthat is\ndetermined to be a criminal act under any federal, state or local law committed or perpetrated by Executive or the\nCompany at any time prior to and through the Effective Date. Neither Executive northe Company, based on the\nknowledge of Escalade's Board of Directors and of the Company's executive officers otherthan Executive, is currently\naware of any fraud or intentional misconduct of the other party to this Agreement.\n(e) Future Claims Related to Employee and/or Shareholder Status. Notwithstanding any provision of this\nSection 11 that may be construed to the contrary, Executive and the Company agree that neither Executive northe\nCompany waive or release the other party hereto from any claim that may arise based on events occurring afterthe\nEffective Date. Executive and the Company further agree that Executive may not, based upon Executive's status as a\nshareholder ofthe Company, assert any claim subsequent to the Effective Date againstthe Company or any Releasees\nrelating to any potential claim or matterthat is the subject of or is otherwise covered by the release granted by Executive\nin this Agreement or is in any way related to the event of Executive's retirement from or cessation of employment with the\nCompany.\n(f) Additional Release. lfthe Employment End Date is a date laterthan the Effective Date, and provided\nthat Executive has signed and delivered on or promptly after the Employment End Date an additional general release\nsubstantially identical in form and substance to the release set forth in this Section 11 (the “Additional Release”) relating\nto claims arising or that may arise from events on and afterthe Effective Date through the Employment End Date (the\n“Continuing Employment Period”), which Additional Release by its terms has become effective and is in material\ncompliance with the terms of this Agreement, the Company further releases Executive, his successors and assigns from\nany and all claims, demands, actions and causes of action of every kind, nature or description (collectively “claims”) that\nthe Company have had, may now have, or may hereafter have against Executive, including without limitation any and all\nclaims in any way related to or based upon Executive's employment with the Company during the Continuing\nEmployment Period and/or the cessation of Executive's service as an employee of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder federal or state statute or law or local ordinance, existing as of the date of this Agreement and the Company shall\nsign and deliver atsuch time a general release to such effect identical in form and substance to the release contained\nherein, provided, however, that if either party were to breach this Agreement, such further release would not bar an\naction by the non-breaching party against the breaching party to enforce its terms or any applicable laws nor would such\nrelease cover any action based on a claim excluded from the release by Section 11(d).\n20\n12. Future Service as Employee, Executive Officer or Director. Executive agrees that his termination as an\nemployee, executive officer and director of the Company is irrevocable, and thatthe Company shall have no obligation\nwhatsoeverto rehire, reappoint or elect Executive to any such officer, director or other position with the Company.\nExecutive further agrees that if he would seek any such position and is notso hired, nominated, appointed or elected,\nExecutive will not bring a claim against the Company and/or any Releasee for refusal to so hire, nominate, appoint or\nelect.\n13. Binding Effect; Authority. This Agreement shall bind the Executive's heirs, executors, administrators,\npersonal representatives, spouse, dependents, successors and assigns. Escalade represents and warrants to Executive\nthat the individual signing this Agreement on behalf of the Company is duly authorized to enter into this Agreement and to\nbind the Company hereunder.\n14. Non-Admission. This Agreement shall not be construed as an admission by either party of any wrongdoing\nor any violation of any federal, state or local law, regulation or ordinance, and the parties specifically disclaim any\nwrongdoing or violation.\n15. Assignability. Neitherthis Agreement, nor any rightor interest hereunder, shall be assignable by\nExecutive, his beneficiaries or legal representatives, without the prior written consent of an executive officer of Escalade.\n16. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the\nsubject matter hereof and supersedes any other written or oral promises concerning the subject matter of this Agreement\nexcept as expressly stated otherwise herein or except as expressly stated otherwise in the Executive Agreement. The\nterms of this Agreement may not be modified other than in a writing signed by the parties.\n17. Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by the laws of\nthe State of Indiana without giving effect to provisions thereof regarding conflict of laws.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall\nconstitute an original and all of which shall together constitute one and the same instrument.\nIn Witness Whereof, the parties have entered into this Agreement as of this __ day of , 20__\nDavid L. F etherman\n21\nESCALADEJNCORPORATED\nBy\nName\nTHE\n22	EXHIBIT A\nForm Of Waiver, Release, Non-Competition, Non-Solicitation and Non-Disclosure Agreement\nAGREEMENT\nThe following is an agreement (the "Agreement") made and entered into on this\nday of\n20 (the "Effective Date") by and between David L. Fetherman ("E xecutive") and Escalade,\nIncorporated, an Indiana corporation ("E scalade") regarding Executive's termination from all positions held by Executive\nwith Escalade and its various subsidiaries and affiliates. Escalade and Executive are sometimes referred to collectively\nas the "parties" and individually as a "party," and the term "Company" shall mean Escalade and its various subsidiaries\nand affiliates collectively.\nRecitals:\nA. Executive is the Chief Executive Officer and President of Escalade, a Director of Escalade, [and any other\npositions with Escalade] [and any positions as an officer and/or director of various subsidiaries and affiliates of Escalade];\nand\nB. Executive's employment with the Company [has terminated as of the Effective Date] [will terminate as of\n(the "Employment End Date"); and\nC. Executive and the Company are parties to that certain Executive Severance Agreement dated as of\n2016 (the "Executive Agreement"), which Executive Agreement represents the parties' mutual agreement\nwith respect to all matters related to Executive's termination of employment with the Company. All capitalized terms used\nin this Agreement and not defined herein shall have the meaning set forth in the Executive Agreement.\nNOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Company and\nExecutive agree as follows:\n1. Termination Executive hereby affirms his termination from his positions as Chief Executive Officer and\nPresident of Escalade, as a Director of Escalade, and from all other executive officer and director positions that he holds\nwith Escalade and any of Escalade's subsidiaries and their affiliates, effective as of the Employment End Date. Executive\nacknowledges and agrees as of the Employment End Date he also retires as a trustee or other administrator of any and\nall Company benefit plans, including without limitation the Company's retirement plan. Executive and the Company agree\nthat xecutive's resignation as a Director of Escalade is not related to any disagreement between them (other than as\nmay relate to the termination of the Executive's employment with the Company) that would require disclosure pursuant to\nItem 5.02(a) of Form 8-K or any successor provision thereto.\n13\n2. Compensation and Benefits. Provided that Executive fulfills his obligations as set forth in this Agreement,\nthe Company shall pay to Executive the Severance Benefits payable to him in accordance with the applicable terms of\nSection 4 of the Executive Agreement.\n3.\nExecutive's Obligations. In consideration of the payments and benefits provided in Section 2 above,\nExecutive will:\n(a) fully cooperate and assist the Company with any litigation matters or regulatory or agency proceedings for\nwhich his testimony or cooperation is requested by Company following the Effective Date, provided that he is reimbursed\nfor any reasonable and necessary expenses incurred as a result of his cooperation and assistance, and further provided\nthat the Company and Executive shall discuss in advance of Executive's providing any such cooperation and assistance\nthe anticipated time commitment that would likely be required of xecutive with respect to any such matter and shal\nmutually determine whether xecutive should be compensated for his time and the amount of any such compensation, it\nbeing understood and agreed that if the parties cannot reach agreement as to any such compensation, then the\nCompany shall not request, and Executive shall not be required, to provide cooperation and assistance with respect to\nsuch litigation or proceeding;\n(b) sign all necessary resignations from the boards of directors and/or all other officer, employee and trustee\npositions of the Company, but in any event E xecutive shall be deemed to have resigned any such executive officer,\ndirector and trustee positions as of the Employment End Date;\n(c) through the Employment End Date, except as provided in clause (d) below, continue to comply with the\nCompany's Insider Trading Policy, Code of Ethics and all other Company policies and procedures applicable to\nemployees of the Company including, without limitation, no destruction of any documents belonging to or relating to the\nCompany or Executive's employment with the Company whether in paper, electronic, digital or any other format, unless\nsuch destruction is approved in advance and observed by an officer of the Company specifically designated and\nauthorized by Escalade's Board of Directors;\n(d) comply with the Company's Policy for Recovery of Incentive Compensation through the end of the look\nback period, which look back period shall be deemed to commence on the Employment End Date and continue for three\nyears thereafter;\n(e) comply with all laws relating to the Company's business and operations as applicable to Executive and\nthe Company; and\n(f) comply with all covenants contained in the Executive Agreement and in this Agreement, including without\nlimitation Sections 4, 5 and 6 hereof.\n4. Mutual Nondisparagement\n(a) xecutive's Covenant. Beginning on the Effective Date, Executive shall not make, participate in the\nmaking of, or encourage any other person to make, any statements, written or oral, which criticize, disparage, or defame\nthe reputation of, or which embarrass the Company, its subsidiaries and their affiliates or any of their respective present,\nformer or future directors, officers, executives, employees and/or shareholders.\n14\n(b) Company's Covenant Beginning on the Effective Date, the Company shall not, and shall instruct the\nmembers of Escalade's Board of Directors and executive officers not to, make, participate in the making of, or encourage\nany employees or any other person to make, any statements, written or oral, which criticize, disparage, or defame the\nreputation of, or which are intended to embarrass, the Executive.\n5. Confidentiality. Executive understands and agrees that:\n(a) Escalade is required to describe the material terms of this Agreement in a Current Report on Form 8-K to\nbe filed with the Securities and Exchange Commission no later than four (4) business days after this Agreement is signed\nby the Executive and Escalade, and that the Company will attach this Agreement in its entirety as an Exhibit to such\npublic filing;\n(b) xecutive has been through the Employment End Date in the course of employment with the Company\nentrusted with or obtained access to information proprietary to the Company with respect to the following (all of which\ninformation is referred to hereinafter collectively as the "Information"): the organization and management of the\nCompany; the names, addresses, buying habits, and other special information regarding past, present and potential\ncustomers, employees and suppliers of the Company; customer and supplier contracts and transactions or price lists of\nthe Company and their suppliers products, services, programs and processes sold, licensed or developed by the\nCompany; technical data, plans and specifications, present and/or future development projects of the Company; financial\nand/or marketing data respecting the conduct of the present or future phases of business of the Company; computer\nprograms, systems and/or software; ideas, inventions, trademarks, trade secrets, business information, know-how,\nprocesses, improvements, designs, redesigns, discoveries and developments of the Company; and other information\nconsidered confidential by any of the Company or its customers or suppliers. At all times through the mployment nd\nDate and thereafter, Executive agrees to retain the Information in absolute confidence and not to disclose the Information\nto any person or organization except as required in the performance of Executive's duties for the Company as provided in\nthis Agreement, without the express written consent of the Company; provided that Executive's obligation of\nconfidentiality shall not extend to any Information which becomes generally available to the public other than as a result\nof disclosure by Executive;\n(c) Executive and the Company agree that effective no later than days following {ength of time will\ndepend upon information that E xecutive may have at the time of termination} the E mployment nd Date, E xecutive will\nno longer be privy to material, non-public information regarding the Company. Accordingly, the Company agrees that\nxecutive shall not be subject to the Company's Insider Trading Policy thereafter, provided, however, that if and to the\nextent that E xecutive may from time to time acquire knowledge of material, non-public information regarding the\nCompany, xecutive acknowledges and agrees that he may not trade based upon such information and must comply\nwith all applicable laws prohibiting insider trading. The Company further agrees that it will not intentionally provide\nmaterial, non-public information to Executive following the mployment nd Date except in connection with such events,\nactions or circumstances that would require stockholder approval and the Company has made a good faith determination\nthat it is necessary and appropriate to disclose such information to xecutive given his then current ownership of\nEscalade common stock, and that the Company will use its reasonable best efforts to prevent any inadvertent disclosures\nof material, non-public information to Executive;\n15\n(d) Notwithstanding the foregoing, in the event that the Executive is requested or required by law, regulatory\nauthority or other applicable judicial or governmenta order to disclose any Information, the Executive will provide the\nCompany with prompt notice of any such request or requirement (if legally permissible) so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement with respect to\nnon-disclosure of such Information. In the event that such protective order or other remedy is not obtained, or that the\nCompany waives compliance with the terms hereof as set forth above, the xecutive may disclose only that portion of the\nInformation which is legally required; and\n(e) On or promptly following the Employment End Date, Executive will return all Company issued electronic\ndevices (including without limitation, laptops, smart phone, tablets, and similar devices) and Company information to the\nCompany, will no longer access any Escalade data processing or information systems, and will allow the Company to\ninspect any and all electronic devices, whether owned by the Company or Executive, to delete any and all Company data\nand access to Company systems from such devices.\n6.\nCovenant Not to Compete, No Interference; No Solicitation At all times through the twelfth month following\nthe E mployment End Date (or if this period is unenforceable by law, then for such shorter period as shal be enforceable):\n(a) xecutive will not engage in any business offering products or services related to the current business of\nthe Company, whether as a principal, partner, joint venture, agent, employee, salesman, consultant, director or officer,\nwhere such business or business activity is in competition with the Company in any geographic market where the\nCompany does business; provided, however, that E xecutive shal not be prohibited from performing services for a\nsubsidiary or division of a competitive business, as long as (i) such subsidiary or division is not in competition with the\nCompany, (ii) the revenues of the competitive business relating to its products and services that are in competition with\nthe Company constitute five percent (5%) or less of its total revenues, and (iii) the xecutive abides by all other\nprovisions of this Agreement including without limitation Sections 4, 5, 6(b) and 6(c);\n(b) xecutive will not interfere with or adversely affect, either directly or indirectly, the Company's\nrelationships with any person, firm, association, corporation or other entity which is known by Executive to be, or is\nincluded on any listing to which Executive had access during the course of his employment as a customer, client,\nsupplier, consultant or employee of the Company, and Executive will not divert or change, or attempt to divert or change,\nany such relationship to the detriment of the Company or to the benefit of any other person, firm, association, corporation\nor other entity; and\n16\n(c) Executive will not induce, seek to induce or participate directly or indirectly with any third party in seeking\nto induce, any other employee of the Company to terminate his or her employment relationship with the Company,\nprovided, however, that this restriction shall not prohibit Executive from hiring any employee who seeks employment from\nExecutive or any third party with whom Executive may be employed or affiliated with in the future on an unsolicited basis\nas long as such employment is not in competition with any business or operations of the Company.\nExecutive acknowledges and agrees that the covenants, restrictions, agreements, and obligations set forth\nherein are founded upon valuable consideration, and, with respect to the covenants, restrictions, agreements, and\nobligations set forth in this Section 6 are reasonable in duration and geographic scope. The time period and geographica\narea set forth in this Section 6 are each divisible and separable, and, in the event that the covenants not to compete\nand/or not to divert business or employees contained therein are judicially held invalid or unenforceable as to such time\nperiod and/or geographical area, they will be valid and enforceable in such geographical area(s) and for such time\nperiod(s) which the court determines to be reasonable and enforceable. Executive agrees that in the event that any court\nof competent jurisdiction determines that the above covenants are invalid or unenforceable to join with the Company in\nrequesting such court to construe the applicable provision by limiting or reducing it so as to be enforceable to the extent\ncompatible with the then applicable law. F urthermore, it is agreed that any period of restriction or covenant hereinabove\nstated shall not include any period of violation or period of time required for litigation or arbitration to enforce such\nrestrictions or covenants.\n7.\nTax Liability; Tax Withholding E xecutive acknowledges and agrees that he is responsible for the payment of\nall taxes relating to the consideration to be provided to him as contemplated by this Agreement, including the payment of\nany taxes relating to his exercise of stock options and his receipt of any stock, cash or other consideration relating to any\nother equity incentive awards he may have received from the Company. Notwithstanding any other provision of this\nAgreement, the Company will withhold from any amounts payable under this Agreement, or any other benefits received\npursuant hereto, such federal, state and/or local taxes as shall be required to be withheld under any applicable law or\nregulation.\n8. No Mitigation; No Offset. In no event shall E xecutive be obligated to seek other employment or to take any\nother action that would mitigate the amounts payable to xecutive under this Agreement. In the event that E xecutive\nwould obtain subsequent employment, the Company may not offset any compensation or other amounts earned by\nExecutive from such subsequent employment or engagement of his services against the Executive's entitlements under\nthis Agreement. Moreover, subject to Executive's compliance with the covenants set forth in Sections 4, 5 and 6 of this\nAgreement, E xecutive shall be free to pursue any unsolicited, non-competitive opportunities for employment or services\nas may arise from the Company's customers, vendors, employees and affiliates.\n17\n9. Section 16 Reports. E xecutive and the Company agree that notwithstanding E xecutive's termination as an\nexecutive officer and a director of Escalade as of the Employment End Date, Executive may continue to be subject to the\nreporting requirements of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations\nthereunder for up to six months following the Employment End Date. Accordingly, Executive agrees to provide timely\nnotice to Escalade's chief financial officer of all transactions undertaken by Executive in Escalade common stock,\nincluding the purchase or sale of any shares of Escalade common stock and the exercise of any stock options, during the\nsix month period following the E mployment End Date, and the Company shall prepare and file the appropriate Section 16\nreports with the Securities and Exchange Commission on behalf of xecutive. Upon the conclusion of such six month\nperiod, the Company acknowledges that Executive will no longer be deemed an affiliate of the Company and, absent\nExecutive being in possession of material, non-public information concerning the Company, may freely engage in trades\nof Escalade securities.\n10. Remedies.\n(a) Arbitration; Submission to urisdiction. Any dispute that may arise between the Company and\nxecutive relating to this Agreement and the subject matter hereof shall be settled by binding arbitration in accordance\nwith Section 9 of the Executive Agreement\n(b) Injunctive Relief Executive agrees that in the event of any actual or threatened breach by him of any of\nthe provisions contained in this Agreement, including those covenants specifically set forth in Sections 3, 4, 5 and 6\nhereof, the Company shall be entitled to seek immediate temporary injunctive and other equitable relief, without the\nnecessity of showing actual monetary damages, subject to hearing as soon thereafter as possible. In the event of such\ninjunctive relief, the periods of time referred to in Sections 5 and 6 shall be deemed extended for a period equal to the\nrespective period during which mployee is in breach thereof, in order to provide for injunctive relief and specific\nperformance for a period equa to the ful term thereof and the Company shall be entitled to cease its obligations to\nxecutive pursuant to Section 2. In the event that the Company breaches its obligations to make payments and to\nprovide the benefits specified in Section 2 hereof, Executive may seek specific performance in addition to monetary\ndamages and xecutive will not be subject to the provisions of Section 4, 5 or 6 hereof. Nothing contained herein shall\nbe\nconstrued as prohibiting Executive or the Company from pursuing any other remedies available to it for such breach or\nthreatened breach, including the recovery of any damages which it is able to prove.\n18\n11. Mutua Release. In consideration of the payments and benefits set forth in this Agreement, such payments\nand benefits being good and valuable consideration:\n(a) Release by Executive. Subject to Section 10(b), Executive, on his own behalf and on behalf of his heirs,\nadministrators, executors, successors, assigns and persona representatives, covenants not to sue and hereby fully and\nforever releases, acquits and discharges the Company, its shareholders, directors, officers, employees, agents,\nrepresentatives, insurance carriers, and their successors and assigns (collectively the "Releasees"), from any and all\nclaims, demands, actions and causes of action of every kind, nature or description (collectively "claims") that Executive\nmay have had, may now have, or may hereafter have against Releasees, including without limitation any and all claims in\nany way related to or based upon xecutive's employment with the Company through the Effective Date and/or the\ncessation of Executive's service as an employee, executive officer and director of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder any federal or state statute or law or local ordinance, including but not limited to: the Age Discrimination in\nmployment Act as amended ("ADEA"); Older Workers' Benefit rotection Act ("OWBPA"); Americans with Disabilities\nAct ("ADA") as amended; the amily and Medical Leave Act ("FMLA"); Title VII of the Civil Rights Act of 1964; the Civil\nRights Acts of 1991; the Employee Retirement Income Security Act ("ERISA"); 42 U.S.C. 1981; 29 U.S.C. S 206(d)(1)\nSection 503 and 504 of the Rehabilitation Disabilities Act; the WARN Act; Indiana's fair employment practices statutes;\nany other federal, state or local law dealing with employment discrimination; and any federal or state "Whistleblower" law,\nexisting as of the date of this Agreement. Provided, however, that if the Company were to breach this Agreement, this\nrelease would not bar an action by Executive against the Company to enforce its term(s) or any applicable law. In\naddition, this Section 11(a) shall not affect adversely any benefits to which Executive may be entitled arising out of any\nsocial security, workers' compensation or unemployment laws, or under the terms of any employee pension or welfare or\nbenefit plans or programs of the Company, which may be payable now or in the future to Executive.\n(b) Acknowledgements by Executive. xecutive specifically acknowledges and agrees that: (i) Executive is\nwaiving claims under the foregoing laws, including specifically the ADEA and the OWBPA; (ii) this waiver of any rights or\nclaims is knowing and voluntary; (iii) this Agreement is written in a manner that E xecutive understands; (iv) the Company\nhas hereby advised Executive to consult with an attorney before executing this Agreement and that Executive has so\nconsulted; (v) the waiver of rights under Section 11(a) does not waive rights or claims arising after the date of this\nAgreement; (vi) Executive has been given a period of 21 days within which to consider this Agreement; (vii) for a period\nof seven days following Executive's execution of this Agreement, Executive may revoke this Agreement and this\nAgreement will not become enforceable or effective until the revocation period expires; and (viii) the waiver of rights in\nSection 11(a) is in exchange for consideration in addition to anything of value to which E xecutive was already entitled to\nreceive.\n(c) Release by the Company. Subject to Section 10(b), the Company, on behalf of itself and its successors\nand assigns, covenants not to sue and hereby fully and forever releases, acquits and discharges Executive and his\nsuccessors and assigns, from any and all claims, demands, actions and causes of action of every kind, nature or\ndescription (collectively "claims") that the Company may have had, may now have, or may hereafter have against\nExecutive, including without limitation any and all claims in any way related to or based upon Executive's employment\nwith the Company, its subsidiaries and affiliates through the Effective Date and/or the cessation of Executive's service as\nan executive officer or director of the Company, including without limitation any claims for breach of contract, implied\ncontract, promissory estoppel, tortious conduct or claims arising under any federal or state statute or law or local\nordinance, existing as of the date of this Agreement Provided, however, that if Executive were to breach this Agreement,\nthis release would not bar an action by the Company against Executive to enforce its term(s) or any applicable laws. In\naddition, this Section 11(c) shall not bar any action by the Company against E xecutive to enforce the terms of the\nCompany's Policy for Recovery of Incentive Compensation and/or Section 5(b) of the Executive Agreement.\n19\n(d) Unknown Claims This Agreement covers both claims that Executive and/or the Company know about\nand those that Executive and/or the Company may not know about. The parties hereto expressly waive all rights afforded\nby any statute that limits the effect of a release with respect to unknown claims, except as to any claims that Executive\nmay have as contemplated by the last two sentences of Section 11(b) or that Company may have as contemplated by\nthe last two sentences of Section 11(c). Each of Executive and the Company understand the significance of its respective\nrelease of unknown claims and the waiver of statutory protection against a release of unknown claims. However, this\nrelease shall not apply to any claim based on the fraud or intentional misconduct of the other party or to any act that\nis\ndetermined to be a criminal act under any federal, state or local law committed or perpetrated by xecutive or the\nCompany at any time prior to and through the E ffective Date. Neither Executive nor the Company, based on the\nknowledge of Escalade's Board of Directors and of the Company's executive officers other than xecutive, is currently\naware of any fraud or intentional misconduct of the other party to this Agreement.\n(e) Future Claims Related to mployee and/or Shareholder Status. Notwithstanding any provision of this\nSection 11 that may be construed to the contrary, Executive and the Company agree that neither xecutive nor the\nCompany waive or release the other party hereto from any claim that may arise based on events occurring after the\nEffective Date. xecutive and the Company further agree that Executive may not, based upon xecutive's status as\na\nshareholder of the Company, assert any claim subsequent to the ffective Date against the Company or any Releasees\nrelating to any potential claim or matter that is the subject of or is otherwise covered by the release granted by Executive\nin this Agreement or is in any way related to the event of xecutive's retirement from or cessation of employment with the\nCompany.\n(f) Additional Release. If the Employment End Date is a date later than the Effective Date, and provided\nthat xecutive has signed and delivered on or promptly after the Employment nd Date an additional general release\nsubstantially identical in form and substance to the release set forth in this Section 11 (the "Additiona Release") relating\nto claims arising or that may arise from events on and after the Effective Date through the Employment End Date (the\n"Continuing Employment Period"), which Additional R elease by its terms has become effective and is in material\ncompliance with the terms of this Agreement, the Company further releases Executive, his successors and assigns from\nany and all claims, demands, actions and causes of action of every kind, nature or description (collectively "claims") that\nthe Company have had, may now have, or may hereafter have against Executive, including without limitation any and all\nclaims in any way related to or based upon Executive's employment with the Company during the Continuing\nmployment eriod and/or the cessation of Executive's service as an employee of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder federal or state statute or law or local ordinance, existing as of the date of this Agreement and the Company shall\nsign and deliver at such time a general release to such effect identical in form and substance to the release contained\nherein, provided, however, that if either party were to breach this Agreement, such further release would not bar an\naction by the non-breaching party against the breaching party to enforce its terms or any applicable laws nor would such\nrelease cover any action based on a claim excluded from the release by Section 11(d).\n20\n12. Future Service as Employee, Executive Officer or Director. Executive agrees that his termination as an\nemployee, executive officer and director of the Company is irrevocable, and that the Company shall have no obligation\nwhatsoever to rehire, reappoint or elect xecutive to any such officer, director or other position with the Company.\nExecutive further agrees that if he would seek any such position and is not SO hired, nominated, appointed or elected,\nExecutive will not bring a claim against the Company and/or any Releasee for refusal to So hire, nominate, appoint or\nelect.\n13. Binding E ffect; Authority. This Agreement shall bind the Executive's heirs, executors, administrators,\npersona representatives, spouse, dependents, successors and assigns. Escalade represents and warrants to Executive\nthat the individual signing this Agreement on behalf of the Company is duly authorized to enter into this Agreement and to\nbind the Company hereunder.\n14. Non-Admission. This Agreement shall not be construed as an admission by either party of any wrongdoing\nor any violation of any federal, state or local law, regulation or ordinance, and the parties specifically disclaim any\nwrongdoing or violation.\n15.\nAssignability. Neither this Agreement nor any right or interest hereunder, shall be assignable by\nExecutive, his beneficiaries or legal representatives, without the prior written consent of an executive officer of Escalade.\n16. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the\nsubject matter hereof and supersedes any other written or oral promises concerning the subject matter of this Agreement\nexcept as expressly stated otherwise herein or except as expressly stated otherwise in the Executive Agreement. The\nterms of this Agreement may not be modified other than in a writing signed by the parties.\n17. Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by the laws of\nthe State of Indiana without giving effect to provisions thereof regarding conflict of laws.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall\nconstitute an original and all of which shall together constitute one and the same instrument.\nIn Witness Whereof, the parties have entered into this Agreement as of this day of\nDavid L. Fetherman\n21\nESCALADE, INCORPORATED\nBy:\nName:\nTitle:\n22	EXHIBIT A\nForm Of Waiver, Release, Non-Competition, Non-Solicitation and Non-Disclosure Agreement\nAGREEMENT\nThe following is an agreement (the “Agreement”) made and entered into on this ___ day of\n_____ ______ ______ _, 20__ (the “Effective Date”) by and between David L. Fetherman (“Executive”) and Escalade,\nIncorporated, an Indiana corporation (“Escalade”) regarding Executive’s termination from all positions held by Executive\nwith Escalade and its various subsidiaries and affiliates. Escalade and Executive are sometimes referred to collectively\nas the “parties” and individually as a “party,” and the term “Company” shall mean Escalade and its various subsidiaries\nand affiliates collectively.\nRecitals:\nA. Executive is the Chief Executive Officer and President of Escalade, a Director of Escalade, [and any other\npositions with Escalade] [and any positions as an officer and/or director of various subsidiaries and affiliates of Escalade];\nand\nB. Executive’s employment with the Company [has terminated as of the Effective Date] [will terminate as of\n_____ ______ , 20__] (the “Employment End Date”); and\nC. Executive and the Company are parties to that certain Executive Severance Agreement dated as of\n_____ _____, 2016 (the “Executive Agreement”), which Executive Agreement represents the parties’ mutual agreement\nwith respect to all matters related to Executive’s termination of employment with the Company. All capitalized terms used\nin this Agreement and not defined herein shall have the meaning set forth in the Executive Agreement.\nNOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Company and\nExecutive agree as follows:\n1. Termination. Executive hereby affirms his termination from his positions as Chief Executive Officer and\nPresident of Escalade, as a Director of Escalade, and from all other executive officer and director positions that he holds\nwith Escalade and any of Escalade’s subsidiaries and their affiliates, effective as of the Employment End Date. Executive\nacknowledges and agrees as of the Employment End Date he also retires as a trustee or other administrator of any and\nall Company benefit plans, including without limitation the Company’s retirement plan. Executive and the Company agree\nthat Executive’s resignation as a Director of Escalade is not related to any disagreement between them (other than as\nmay relate to the termination of the Executive’s employment with the Company) that would require disclosure pursuant to\nItem 5.02(a) of Form 8-K or any successor provision thereto.\n13\n2. Compensation and Benefits. Provided that Executive fulfills his obligations as set forth in this Agreement,\nthe Company shall pay to Executive the Severance Benefits payable to him in accordance with the applicable terms of\nSection 4 of the Executive Agreement.\n3. Executive’s Obligations. In consideration of the payments and benefits provided in Section 2 above,\nExecutive will:\n(a) fully cooperate and assist the Company with any litigation matters or regulatory or agency proceedings for\nwhich his testimony or cooperation is requested by Company following the Effective Date, provided that he is reimbursed\nfor any reasonable and necessary expenses incurred as a result of his cooperation and assistance, and further provided\nthat the Company and Executive shall discuss in advance of Executive’s providing any such cooperation and assistance\nthe anticipated time commitment that would likely be required of Executive with respect to any such matter and shall\nmutually determine whether Executive should be compensated for his time and the amount of any such compensation, it\nbeing understood and agreed that if the parties cannot reach agreement as to any such compensation, then the\nCompany shall not request, and Executive shall not be required, to provide cooperation and assistance with respect to\nsuch litigation or proceeding;\n(b) sign all necessary resignations from the boards of directors and/or all other officer, employee and trustee\npositions of the Company, but in any event Executive shall be deemed to have resigned any such executive officer,\ndirector and trustee positions as of the Employment End Date;\n(c) through the Employment End Date, except as provided in clause (d) below, continue to comply with the\nCompany’s Insider Trading Policy, Code of Ethics and all other Company policies and procedures applicable to\nemployees of the Company including, without limitation, no destruction of any documents belonging to or relating to the\nCompany or Executive’s employment with the Company, whether in paper, electronic, digital or any other format, unless\nsuch destruction is approved in advance and observed by an officer of the Company specifically designated and\nauthorized by Escalade’s Board of Directors;\n(d) comply with the Company’s Policy for Recovery of Incentive Compensation through the end of the look\nback period, which look back period shall be deemed to commence on the Employment End Date and continue for three\nyears thereafter;\n(e) comply with all laws relating to the Company’s business and operations as applicable to Executive and\nthe Company; and\n(f) comply with all covenants contained in the Executive Agreement and in this Agreement, including without\nlimitation Sections 4, 5 and 6 hereof.\n4. Mutual Nondisparagement.\n(a) Executive’s Covenant. Beginning on the Effective Date, Executive shall not make, participate in the\nmaking of, or encourage any other person to make, any statements, written or oral, which criticize, disparage, or defame\nthe reputation of, or which embarrass the Company, its subsidiaries and their affiliates or any of their respective present,\nformer or future directors, officers, executives, employees and/or shareholders.\n14\n(b) Company’s Covenant. Beginning on the Effective Date, the Company shall not, and shall instruct the\nmembers of Escalade’s Board of Directors and executive officers not to, make, participate in the making of, or encourage\nany employees or any other person to make, any statements, written or oral, which criticize, disparage, or defame the\nreputation of, or which are intended to embarrass, the Executive.\n5. Confidentiality. Executive understands and agrees that:\n(a) Escalade is required to describe the material terms of this Agreement in a Current Report on Form 8-K to\nbe filed with the Securities and Exchange Commission no later than four (4) business days after this Agreement is signed\nby the Executive and Escalade, and that the Company will attach this Agreement in its entirety as an Exhibit to such\npublic filing;\n(b) Executive has been through the Employment End Date in the course of employment with the Company\nentrusted with or obtained access to information proprietary to the Company with respect to the following (all of which\ninformation is referred to hereinafter collectively as the "Information"): the organization and management of the\nCompany; the names, addresses, buying habits, and other special information regarding past, present and potential\ncustomers, employees and suppliers of the Company; customer and supplier contracts and transactions or price lists of\nthe Company and their suppliers; products, services, programs and processes sold, licensed or developed by the\nCompany; technical data, plans and specifications, present and/or future development projects of the Company; financial\nand/or marketing data respecting the conduct of the present or future phases of business of the Company; computer\nprograms, systems and/or software; ideas, inventions, trademarks, trade secrets, business information, know-how,\nprocesses, improvements, designs, redesigns, discoveries and developments of the Company; and other information\nconsidered confidential by any of the Company or its customers or suppliers. At all times through the Employment End\nDate and thereafter, Executive agrees to retain the Information in absolute confidence and not to disclose the Information\nto any person or organization except as required in the performance of Executive's duties for the Company as provided in\nthis Agreement, without the express written consent of the Company; provided that Executive’s obligation of\nconfidentiality shall not extend to any Information which becomes generally available to the public other than as a result\nof disclosure by Executive;\n(c) Executive and the Company agree that effective no later than __ days following {length of time will\ndepend upon information that Executive may have at the time of termination} the Employment End Date, Executive will\nno longer be privy to material, non-public information regarding the Company. Accordingly, the Company agrees that\nExecutive shall not be subject to the Company’s Insider Trading Policy thereafter, provided, however, that if and to the\nextent that Executive may from time to time acquire knowledge of material, non-public information regarding the\nCompany, Executive acknowledges and agrees that he may not trade based upon such information and must comply\nwith all applicable laws prohibiting insider trading. The Company further agrees that it will not intentionally provide\nmaterial, non-public information to Executive following the Employment End Date except in connection with such events,\nactions or circumstances that would require stockholder approval and the Company has made a good faith determination\nthat it is necessary and appropriate to disclose such information to Executive given his then current ownership of\nEscalade common stock, and that the Company will use its reasonable best efforts to prevent any inadvertent disclosures\nof material, non-public information to Executive;\n15\n(d) Notwithstanding the foregoing, in the event that the Executive is requested or required by law, regulatory\nauthority or other applicable judicial or governmental order to disclose any Information, the Executive will provide the\nCompany with prompt notice of any such request or requirement (if legally permissible) so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement with respect to\nnon-disclosure of such Information. In the event that such protective order or other remedy is not obtained, or that the\nCompany waives compliance with the terms hereof as set forth above, the Executive may disclose only that portion of the\nInformation which is legally required; and\n(e) On or promptly following the Employment End Date, Executive will return all Company issued electronic\ndevices (including without limitation, laptops, smart phone, tablets, and similar devices) and Company information to the\nCompany, will no longer access any Escalade data processing or information systems, and will allow the Company to\ninspect any and all electronic devices, whether owned by the Company or Executive, to delete any and all Company data\nand access to Company systems from such devices.\n6. Covenant Not to Compete, No Interference; No Solicitation. At all times through the twelfth month following\nthe Employment End Date (or if this period is unenforceable by law, then for such shorter period as shall be enforceable):\n(a) Executive will not engage in any business offering products or services related to the current business of\nthe Company, whether as a principal, partner, joint venture, agent, employee, salesman, consultant, director or officer,\nwhere such business or business activity is in competition with the Company in any geographic market where the\nCompany does business; provided, however, that Executive shall not be prohibited from performing services for a\nsubsidiary or division of a competitive business, as long as (i) such subsidiary or division is not in competition with the\nCompany, (ii) the revenues of the competitive business relating to its products and services that are in competition with\nthe Company constitute five percent (5%) or less of its total revenues, and (iii) the Executive abides by all other\nprovisions of this Agreement including without limitation Sections 4, 5, 6(b) and 6(c);\n(b) Executive will not interfere with or adversely affect, either directly or indirectly, the Company’s\nrelationships with any person, firm, association, corporation or other entity which is known by Executive to be, or is\nincluded on any listing to which Executive had access during the course of his employment as a customer, client,\nsupplier, consultant or employee of the Company, and Executive will not divert or change, or attempt to divert or change,\nany such relationship to the detriment of the Company or to the benefit of any other person, firm, association, corporation\nor other entity; and\n16\n(c) Executive will not induce, seek to induce or participate directly or indirectly with any third party in seeking\nto induce, any other employee of the Company to terminate his or her employment relationship with the Company,\nprovided, however, that this restriction shall not prohibit Executive from hiring any employee who seeks employment from\nExecutive or any third party with whom Executive may be employed or affiliated with in the future on an unsolicited basis\nas long as such employment is not in competition with any business or operations of the Company.\nExecutive acknowledges and agrees that the covenants, restrictions, agreements, and obligations set forth\nherein are founded upon valuable consideration, and, with respect to the covenants, restrictions, agreements, and\nobligations set forth in this Section 6 are reasonable in duration and geographic scope. The time period and geographical\narea set forth in this Section 6 are each divisible and separable, and, in the event that the covenants not to compete\nand/or not to divert business or employees contained therein are judicially held invalid or unenforceable as to such time\nperiod and/or geographical area, they will be valid and enforceable in such geographical area(s) and for such time\nperiod(s) which the court determines to be reasonable and enforceable. Executive agrees that in the event that any court\nof competent jurisdiction determines that the above covenants are invalid or unenforceable to join with the Company in\nrequesting such court to construe the applicable provision by limiting or reducing it so as to be enforceable to the extent\ncompatible with the then applicable law. Furthermore, it is agreed that any period of restriction or covenant hereinabove\nstated shall not include any period of violation or period of time required for litigation or arbitration to enforce such\nrestrictions or covenants.\n7. Tax Liability; Tax Withholding. Executive acknowledges and agrees that he is responsible for the payment of\nall taxes relating to the consideration to be provided to him as contemplated by this Agreement, including the payment of\nany taxes relating to his exercise of stock options and his receipt of any stock, cash or other consideration relating to any\nother equity incentive awards he may have received from the Company. Notwithstanding any other provision of this\nAgreement, the Company will withhold from any amounts payable under this Agreement, or any other benefits received\npursuant hereto, such federal, state and/or local taxes as shall be required to be withheld under any applicable law or\nregulation.\n8. No Mitigation; No Offset. In no event shall Executive be obligated to seek other employment or to take any\nother action that would mitigate the amounts payable to Executive under this Agreement. In the event that Executive\nwould obtain subsequent employment, the Company may not offset any compensation or other amounts earned by\nExecutive from such subsequent employment or engagement of his services against the Executive’s entitlements under\nthis Agreement. Moreover, subject to Executive’s compliance with the covenants set forth in Sections 4, 5 and 6 of this\nAgreement, Executive shall be free to pursue any unsolicited, non-competitive opportunities for employment or services\nas may arise from the Company’s customers, vendors, employees and affiliates.\n17\n9. Section 16 Reports. Executive and the Company agree that notwithstanding Executive’s termination as an\nexecutive officer and a director of Escalade as of the Employment End Date, Executive may continue to be subject to the\nreporting requirements of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations\nthereunder for up to six months following the Employment End Date. Accordingly, Executive agrees to provide timely\nnotice to Escalade’s chief financial officer of all transactions undertaken by Executive in Escalade common stock,\nincluding the purchase or sale of any shares of Escalade common stock and the exercise of any stock options, during the\nsix month period following the Employment End Date, and the Company shall prepare and file the appropriate Section 16\nreports with the Securities and Exchange Commission on behalf of Executive. Upon the conclusion of such six month\nperiod, the Company acknowledges that Executive will no longer be deemed an affiliate of the Company and, absent\nExecutive being in possession of material, non-public information concerning the Company, may freely engage in trades\nof Escalade securities.\n10. Remedies.\n(a) Arbitration; Submission to Jurisdiction. Any dispute that may arise between the Company and\nExecutive relating to this Agreement and the subject matter hereof shall be settled by binding arbitration in accordance\nwith Section 9 of the Executive Agreement.\n(b) Injunctive Relief. Executive agrees that in the event of any actual or threatened breach by him of any of\nthe provisions contained in this Agreement, including those covenants specifically set forth in Sections 3, 4, 5 and 6\nhereof, the Company shall be entitled to seek immediate temporary injunctive and other equitable relief, without the\nnecessity of showing actual monetary damages, subject to hearing as soon thereafter as possible. In the event of such\ninjunctive relief, the periods of time referred to in Sections 5 and 6 shall be deemed extended for a period equal to the\nrespective period during which Employee is in breach thereof, in order to provide for injunctive relief and specific\nperformance for a period equal to the full term thereof and the Company shall be entitled to cease its obligations to\nExecutive pursuant to Section 2. In the event that the Company breaches its obligations to make payments and to\nprovide the benefits specified in Section 2 hereof, Executive may seek specific performance in addition to monetary\ndamages and Executive will not be subject to the provisions of Section 4, 5 or 6 hereof. Nothing contained herein shall be\nconstrued as prohibiting Executive or the Company from pursuing any other remedies available to it for such breach or\nthreatened breach, including the recovery of any damages which it is able to prove.\n18\n11. Mutual Release. In consideration of the payments and benefits set forth in this Agreement, such payments\nand benefits being good and valuable consideration:\n(a) Release by Executive. Subject to Section 10(b), Executive, on his own behalf and on behalf of his heirs,\nadministrators, executors, successors, assigns and personal representatives, covenants not to sue and hereby fully and\nforever releases, acquits and discharges the Company, its shareholders, directors, officers, employees, agents,\nrepresentatives, insurance carriers, and their successors and assigns (collectively the “Releasees”), from any and all\nclaims, demands, actions and causes of action of every kind, nature or description (collectively “claims”) that Executive\nmay have had, may now have, or may hereafter have against Releasees, including without limitation any and all claims in\nany way related to or based upon Executive’s employment with the Company through the Effective Date and/or the\ncessation of Executive’s service as an employee, executive officer and director of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder any federal or state statute or law or local ordinance, including but not limited to: the Age Discrimination in\nEmployment Act as amended (“ADEA”); Older Workers’ Benefit Protection Act (“OWBPA”); Americans with Disabilities\nAct (“ADA”) as amended; the Family and Medical Leave Act (“FMLA”); Title VII of the Civil Rights Act of 1964; the Civil\nRights Acts of 1991; the Employee Retirement Income Security Act (“ERISA”); 42 U.S .C. § 1981; 29 U.S .C . § 206(d)(1);\nSection 503 and 504 of the Rehabilitation Disabilities Act; the WARN Act; Indiana’s fair employment practices statutes;\nany other federal, state or local law dealing with employment discrimination; and any federal or state “Whistleblower” law,\nexisting as of the date of this Agreement. Provided, however, that if the Company were to breach this Agreement, this\nrelease would not bar an action by Executive against the Company to enforce its term(s) or any applicable law. In\naddition, this Section 11(a) shall not affect adversely any benefits to which Executive may be entitled arising out of any\nsocial security, workers' compensation or unemployment laws, or under the terms of any employee pension or welfare or\nbenefit plans or programs of the Company, which may be payable now or in the future to Executive.\n(b) Acknowledgements by Executive. Executive specifically acknowledges and agrees that: (i) Executive is\nwaiving claims under the foregoing laws, including specifically the ADEA and the OWBPA; (ii) this waiver of any rights or\nclaims is knowing and voluntary; (iii) this Agreement is written in a manner that Executive understands; (iv) the Company\nhas hereby advised Executive to consult with an attorney before executing this Agreement and that Executive has so\nconsulted; (v) the waiver of rights under Section 11(a) does not waive rights or claims arising after the date of this\nAgreement; (vi) Executive has been given a period of 21 days within which to consider this Agreement; (vii) for a period\nof seven days following Executive’s execution of this Agreement, Executive may revoke this Agreement and this\nAgreement will not become enforceable or effective until the revocation period expires; and (viii) the waiver of rights in\nSection 11(a) is in exchange for consideration in addition to anything of value to which Executive was already entitled to\nreceive.\n(c) Release by the Company. Subject to Section 10(b), the Company, on behalf of itself and its successors\nand assigns, covenants not to sue and hereby fully and forever releases, acquits and discharges Executive and his\nsuccessors and assigns, from any and all claims, demands, actions and causes of action of every kind, nature or\ndescription (collectively “claims”) that the Company may have had, may now have, or may hereafter have against\nExecutive, including without limitation any and all claims in any way related to or based upon Executive’s employment\nwith the Company, its subsidiaries and affiliates through the Effective Date and/or the cessation of Executive’s service as\nan executive officer or director of the Company, including without limitation any claims for breach of contract, implied\ncontract, promissory estoppel, tortious conduct or claims arising under any federal or state statute or law or local\nordinance, existing as of the date of this Agreement. Provided, however, that if Executive were to breach this Agreement,\nthis release would not bar an action by the Company against Executive to enforce its term(s) or any applicable laws. In\naddition, this Section 11(c) shall not bar any action by the Company against Executive to enforce the terms of the\nCompany’s Policy for Recovery of Incentive Compensation and/or Section 5(b) of the Executive Agreement.\n19\n(d) Unknown Claims. This Agreement covers both claims that Executive and/or the Company know about\nand those that Executive and/or the Company may not know about. The parties hereto expressly waive all rights afforded\nby any statute that limits the effect of a release with respect to unknown claims, except as to any claims that Executive\nmay have as contemplated by the last two sentences of Section 11(b) or that Company may have as contemplated by\nthe last two sentences of Section 11(c). Each of Executive and the Company understand the significance of its respective\nrelease of unknown claims and the waiver of statutory protection against a release of unknown claims. However, this\nrelease shall not apply to any claim based on the fraud or intentional misconduct of the other party or to any act that is\ndetermined to be a criminal act under any federal, state or local law committed or perpetrated by Executive or the\nCompany at any time prior to and through the Effective Date. Neither Executive nor the Company, based on the\nknowledge of Escalade’s Board of Directors and of the Company’s executive officers other than Executive, is currently\naware of any fraud or intentional misconduct of the other party to this Agreement.\n(e) Future Claims Related to Employee and/or Shareholder Status. Notwithstanding any provision of this\nSection 11 that may be construed to the contrary, Executive and the Company agree that neither Executive nor the\nCompany waive or release the other party hereto from any claim that may arise based on events occurring after the\nEffective Date. Executive and the Company further agree that Executive may not, based upon Executive’s status as a\nshareholder of the Company, assert any claim subsequent to the Effective Date against the Company or any Releasees\nrelating to any potential claim or matter that is the subject of or is otherwise covered by the release granted by Executive\nin this Agreement or is in any way related to the event of Executive’s retirement from or cessation of employment with the\nCompany.\n(f) Additional Release. If the Employment End Date is a date later than the Effective Date, and provided\nthat Executive has signed and delivered on or promptly after the Employment End Date an additional general release\nsubstantially identical in form and substance to the release set forth in this Section 11 (the “Additional Release”) relating\nto claims arising or that may arise from events on and after the Effective Date through the Employment End Date (the\n“Continuing Employment Period”), which Additional Release by its terms has become effective and is in material\ncompliance with the terms of this Agreement, the Company further releases Executive, his successors and assigns from\nany and all claims, demands, actions and causes of action of every kind, nature or description (collectively “claims”) that\nthe Company have had, may now have, or may hereafter have against Executive, including without limitation any and all\nclaims in any way related to or based upon Executive’s employment with the Company during the Continuing\nEmployment Period and/or the cessation of Executive’s service as an employee of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder federal or state statute or law or local ordinance, existing as of the date of this Agreement and the Company shall\nsign and deliver at such time a general release to such effect identical in form and substance to the release contained\nherein, provided, however, that if either party were to breach this Agreement, such further release would not bar an\naction by the non-breaching party against the breaching party to enforce its terms or any applicable laws nor would such\nrelease cover any action based on a claim excluded from the release by Section 11(d).\n20\n12. Future Service as Employee, Executive Officer or Director. Executive agrees that his termination as an\nemployee, executive officer and director of the Company is irrevocable, and that the Company shall have no obligation\nwhatsoever to rehire, reappoint or elect Executive to any such officer, director or other position with the Company.\nExecutive further agrees that if he would seek any such position and is not so hired, nominated, appointed or elected,\nExecutive will not bring a claim against the Company and/or any Releasee for refusal to so hire, nominate, appoint or\nelect.\n13. Binding Effect; Authority. This Agreement shall bind the Executive’s heirs, executors, administrators,\npersonal representatives, spouse, dependents, successors and assigns. Escalade represents and warrants to Executive\nthat the individual signing this Agreement on behalf of the Company is duly authorized to enter into this Agreement and to\nbind the Company hereunder.\n14. Non-Admission. This Agreement shall not be construed as an admission by either party of any wrongdoing\nor any violation of any federal, state or local law, regulation or ordinance, and the parties specifically disclaim any\nwrongdoing or violation.\n15. Assignability. Neither this Agreement, nor any right or interest hereunder, shall be assignable by\nExecutive, his beneficiaries or legal representatives, without the prior written consent of an executive officer of Escalade.\n16. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the\nsubject matter hereof and supersedes any other written or oral promises concerning the subject matter of this Agreement\nexcept as expressly stated otherwise herein or except as expressly stated otherwise in the Executive Agreement. The\nterms of this Agreement may not be modified other than in a writing signed by the parties.\n17. Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by the laws of\nthe State of Indiana without giving effect to provisions thereof regarding conflict of laws.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall\nconstitute an original and all of which shall together constitute one and the same instrument.\nIn Witness Whereof, the parties have entered into this Agreement as of this __ day of _______, 20__.\n_____ ______ ______ ______ ______\nDavid L. Fetherman\n21\nESCALADE, INCORPORATED\nBy:\n_____ ______ ______ ______ _\nName:\n_____ ______ ______ _____\nTitle:\n_____ ______ ______ ______\n22
0859334b76224ff82c1312ae7b2b5da1.pdf	effective_date jurisdiction party term	EX-99.15 2 exhibit-ndaexecutionversion.htm\nEXECUTION VERSION\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made effective as of\nFebruary 18, 2013, by and between Central European Distribution Corporation, a Delaware corporation (“CEDC”) and\nW&L Enterprises Ltd. (the “Recipient”).\nWHEREAS, CEDC has issued (i) 3.00% Convertible Notes due 2013 (the “Convertible Notes”) and (ii) $380\nmillion 9.125% Senior Secured Notes due 2016 and €430 ($556.6 million) 8.875% Senior Secured Notes due 2016\n(collectively, the “2016 Notes” and together with the Convertible Notes, the “Notes”).\nWHEREAS, the Recipient holds 7,517,549 shares of CEDC’s outstanding common stock (the “Common\nStock”).\nWHEREAS the Recipient and CEDC wish to enter into discussions with respect to a potential restructuring of the\nNotes and Common Stock (a “Restructuring”).\nWHEREAS, CEDC, in such discussions, may disclose certain confidential information to the Recipient in order\nto initiate, facilitate, and/or progress such restructuring discussions (the “Purpose”).\nNOW THEREFORE, in consideration for receiving certain confidential information and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 Subject to Section 1.2 below, “Confidential Information” means confidential, secret, proprietary or other non-public\ninformation pertaining to the business, operations, brands, marketing plans, financial matters, legal matters, products,\nprojects, business plans or practices, research and development, product development, intellectual property, financial\nmodels, trademarks, trade secrets, accounting and financing data, and methods of production, distribution or\nprocurement, suppliers, distributors, consultants, advisors or employees, directors or officers of CEDC or any of its\nSubsidiaries (defined below) (together, the “CEDC Group”) that is disclosed or otherwise made available, either orally or\nin writing, by any member of the CEDC Group to the Recipient or its affiliates, agents, or advisors (including, without\nlimitation, financial advisors, attorneys, banks and other sources of equity and debt financing and accountants)\n(collectively, “Representatives”).\n1.2 Notwithstanding anything herein to the contrary, Confidential Information shall not include any information that (a)\nis or becomes publicly available (other than through a breach of this Agreement by the Recipient), (b) is in the\npossession of or known to the Recipient or its Representatives prior to such information having been furnished to\nRecipient hereunder, (c) is independently conceived, developed or discovered by the Recipient or on its behalf, (d) is\nmade available to the Recipient or its Representatives by any person other than a member of the CEDC Group without\nany known breach of any obligation of confidentiality of such other person, or (e) is the subject of a written confirmation\nfrom CEDC or any of its Subsidiaries or any member of the CEDC Group stating that any such information is not\nConfidential Information. In clarification of the foregoing, a general disclosure in the public domain will not cause more\nspecific (but related) information to be excluded as Confidential Information under one of the above exceptions.\n1.3\n“Subsidiary” of any entity means any other entity in which such first entity owns or Controls, directly or\nindirectly, an amount of the voting securities, other voting interests or voting partnership interests sufficient to elect at\nleast a majority of such other entity’s board of directors or other governing body (or, if there are no such voting interests,\n50% or more of the equity interests of such other entity). For purposes of this Section 1.3, “Control” means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an\nindividual, corporation, partnership, limited partnership or limited liability company, whether through the ownership of\nvoting securities, by contract or otherwise.\n2. Use and Disclosure of Confidential Information.\n2.1 The Recipient agrees that all Confidential Information will be held and maintained by it in the strictest confidence,\nwill be used by it solely and exclusively for the purpose of evaluating, negotiating and implementing a Restructuring,\nand will not, directly or indirectly, be used or disclosed by it for any other purpose whatsoever. CEDC acknowledges that\nRecipient is engaged in businesses similar to those conducted by CEDC and the CEDC Group or other industries in the\nordinary course of Recipient’s business. The Recipient will use reasonable care to maintain the confidentiality of\nConfidential Information, provided that such care shall be at least as great as the precautions taken by the Recipient to\nprotect its own confidential information of similar nature.\n2.2 The Recipient agrees that it will not, without the prior written consent of CEDC, directly or indirectly, disclose all or\nany portion of the Confidential Information, or the substance thereof, to any third party other than its Representatives in\nconnection with the Purpose, except, subject to Section 2.3 below, to the extent required by applicable law or legal\nprocess.\n2.3 The Recipient agrees that if the Recipient is required by any law, court or governmental order to disclose any\nConfidential Information, the Recipient will provide CEDC, to the extent practicable and legally permissible, with\nprompt written notice of such requirement so that CEDC or the applicable member of the CEDC Group may seek an\nappropriate protective order with respect thereto. If such an order is not obtained, only that portion of the Confidential\nInformation shall be furnished that is legally required to be furnished, at the sole expense of CEDC or one of its\nSubsidiaries, and the Recipient shall exercise commercial efforts to obtain reliable assurances that confidential treatment\nwill be accorded such Confidential Information. Notwithstanding the foregoing, notice to CEDC shall not be required\nwhere disclosure is made (i) in response to a request by a regulatory or self-regulatory authority, or (ii) in connection\nwith a routine audit or examination by a bank examiner or auditor, and such request, audit or examination does not\nreference CEDC or this Agreement.\n2.4 The Recipient shall ensure that each of its Representatives who are either provided with Confidential Information, or\notherwise have access to such Confidential Information, are informed of its confidential nature and are directed to abide\nby the terms of this Agreement applicable to Representatives or appropriate duties or obligations of confidentiality\nimposing confidentiality obligations on such Representatives (except that there shall be no requirement to so inform\nwhere the Representative to whom the information is to be disclosed is subject to professional obligations to maintain the\nconfidentiality of the Confidential Information or is otherwise bound by requirements of confidentiality in relation to the\nConfidential Information). The Recipient agrees to be liable for any breach of this Agreement by the Recipient or its\naffiliates or Representatives. The Recipient shall use reasonable efforts to provide written notice to CEDC of any use or\ndisclosure of Confidential Information in breach of this Agreement of which Recipient is aware, including without\nlimitation written details regarding the circumstances and the identity of the individuals or entities who as a result\nreceived or may have received access to such Confidential Information.\n-2-\n3. Certain Rights and Limitations.\n3.1 The parties hereto are independent of one another and this Agreement does not create any agency, partnership or\nsimilar relationship between the parties hereto. CEDC acknowledges that neither the Recipient nor any of its affiliates,\nnor its or their Representatives, will be deemed to have made any representation or warranty or commitment with respect\nto the Purpose except as may be set forth in one or more final, legally binding definitive agreements. Except as otherwise\nprovided by CEDC, the Recipient (i) acknowledges that neither CEDC nor any of its Representatives make any\nrepresentation or warranty hereunder, either express or implied, as to the truth, accuracy or completeness of any\nConfidential Information, provided, however, that CEDC, the CEDC Group and any of their Representatives shall use\ngood faith efforts to ensure that all Confidential Information furnished to Recipient hereunder is true, accurate and\ncomplete to the best of their knowledge, and (ii) agrees, to the fullest extent permitted by law that in the absence of fraud\nor willful misconduct on their part neither CEDC nor any of its Subsidiaries or Representatives shall have any liability to\nthe Recipient or its Representatives on any basis (including, without limitation, in contract, tort, under federal or state\nsecurities laws or otherwise) as a result of the review by the Recipient or its Representatives or the use of the\nConfidential Information by the Recipient or its Representatives in accordance with the provisions of this Agreement.\n3.2 The Recipient agrees that, upon written request by CEDC, all Confidential Information (and all copies, summaries\nand notes of the contents or parts thereof) and all Company property received by the Recipient shall, as soon as\nreasonably practicable, be either returned to CEDC or, to the extent technically practicable, destroyed (at the Recipient’s\nor its Representatives’ option), except that Recipient and its Representatives may retain copies of Confidential\nInformation as is required to comply with applicable law or regulation or professional standards or internal compliance\nrequirements. The Recipient’s obligations under Section 2 hereof shall survive the return of such tangible embodiments\nof Confidential Information until termination of this Agreement. Notwithstanding anything to the contrary in this\nAgreement, neither Recipient nor any of its Representatives shall be required to delete electronically stored Confidential\nInformation to the extent such deletion would be technologically impracticable or inconsistent with the archival records\nretention policy of the Recipient or its Representatives.\n3.3 The Recipient shall not remove, obscure, overprint, deface or destroy any notice of confidentiality, copyright,\ntrademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential\nInformation the Recipient obtains from the CEDC Group.\n-3-\n3.4 CEDC understands and acknowledges that the Recipient and an affiliate of the Recipient are currently reporting\npersons with respect to CEDC’s common stock on a Schedule 13D under the provisions of §§ 240.13d-1(a) and 13d-2(a)\nof the United States Securities Exchange Act of 1934, among others, and that accordingly the Recipient and its affiliate\nwill have ongoing disclosure obligations thereunder, which shall not be restricted or limited by this Agreement, including\nthat this Agreement shall be disclosed and publicly filed as an amendment to such Schedule 13D.\n4. Remedies. The Recipient acknowledges that a breach of any of the terms of this Agreement may cause irreparable\nharm to CEDC for which CEDC may not be adequately compensated by money damages. Accordingly, the Recipient\nagrees that, in addition to all other remedies available to CEDC, including any member of the CEDC Group, in an action\nat law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, CEDC shall,\nwithout the necessity of proving actual damages or posting any bond or other security, be entitled to seek temporary and\npermanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement. Each\nparty's rights and obligations under this Agreement are cumulative and are in addition to and not in limitation of such\nparty's rights and obligations under law, equity or any other written agreement.\n5. Miscellaneous.\n5.1 This Agreement shall be governed by and construed and take effect as an enforceable contract in accordance with\nthe laws of the State of New York governing such agreements, without regard to conflicts-of-law principles thereof that\nwould require applicability of any other law. The parties hereto agree that any dispute between them relating to this\nAgreement will be resolved solely in the manner set forth in clause (i) below:\n(i) Each of the parties hereto irrevocably submits to the jurisdiction of the United States District Court located in\nthe State of New York and in the Borough of Manhattan, and all appellate courts relating thereto, for the purpose\nof any suit, action, proceeding or judgment relating to or arising out of this Agreement. Service of process in\nconnection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by\nthe same methods as are specified for the giving of notices under this Agreement. Each party hereto irrevocably\nwaives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and\nirrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought\nin an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A\nTRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS\nTHAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.\n5.2 Any notices or other correspondence (hereinafter collectively referred to as “correspondence”) required or permitted\nto be given hereunder shall be in writing and shall be sent by postage prepaid first class mail, courier or facsimile or\ndelivered by hand to the party to whom such correspondence is required or permitted to be given hereunder, and shall be\ndeemed sufficient upon receipt when delivered personally or by courier, overnight delivery service or confirmed\nfacsimile, or three (3) Business Days after being deposited in the regular mail as certified or registered mail (airmail if\nsent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or\nfacsimile number as set forth below:\n-4-\n(a) All correspondence to the CEDC Group shall be addressed as follows:\nCentral European Distribution Corporation\nBobrowiecka 6\n00-728 Warsaw\nPoland\nAttention: Grant Winterton\nFacsimile: +48 22 456 60 01\nwith a copy to\nSkadden, Arps, Slate, Meagher & Flom (UK) LLP\n40 Bank St., Canary Wharf\nLondon E14 5DS\nUK\nAttention: Scott Simpson, Esq.\nFacsimile: +44 20 7519 7070\n(b) All correspondence to the Recipient shall be addressed as follows:\nW&L Enterprises Ltd.\nCraigmuir Chambers,\nP.O. Box 71,\nRoad Town,\nTortola,\nBritish Virgin Islands\nAttention: Mark Kaufman\nFacsimile: +7-495-232-6138\nwith copies to\nDarrois Villey Maillot Brochier A.A.R .P.I .\n69, avenue Victor Hugo\nParis 75783\nFrance\nAttention: Ben Burman, Esq.\nFacsimile: + 33 1 45 02 49 59\nand\nWachtell, Lipton Rosen & Katz\n51 West 52nd Street\nNew York, New York 10019\nAttention: Adam Emmerich, Esq.\nFacsimile: (212) 403-2234\n-5-\n(c) Either party may change the address to which correspondence to it is to be addressed by written notification\nas provided for herein.\n5.3 This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior and contemporaneous agreements and understandings whether written or oral, express or\nimplied. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors\nand permitted assigns, including without limitation the heirs, executors and legal representatives of each such party. The\nRecipient acknowledges and agrees that all members of the CEDC Group are third party beneficiaries of this\nAgreement. Except where expressly indicated otherwise, the words “written” or “in writing” shall include, but not be\nlimited to, written or printed documents, electronic and facsimile transmissions and computer disks or tapes (whether\nmachine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of\ncompetent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full force and\neffect to the fullest extent permitted by applicable law. Upon such determination of invalidity or unenforceability, the\nparties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as\npossible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as\noriginally contemplated to the fullest extent possible. No amendment, modification or alteration of the terms of this\nAgreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising\nany right in respect to this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any\nright will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right.\nAny such waiver shall be effective only in the specific instance and for the purpose given. This Agreement may be\nsigned in one or more counterparts, each of which shall be deemed to be an original for all purposes.\n6. Securities Laws. The Recipient acknowledges that it is aware (and, if applicable, that its Representatives who are\napprised of this matter have been advised) that the United States securities laws prohibit any person who has material\nnon-public information about a company from purchasing or selling securities of such company, or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person is likely\nto purchase or sell such securities. The Recipient agrees that, to the extent that it has actually received Confidential\nInformation pursuant to this Agreement that constitutes material non-public information, it will not trade any securities\nof CEDC or any of its Subsidiaries prior to the termination of this Agreement and that it will not use any Confidential\nInformation in contravention of the United States securities laws.\n7. Termination.\n7.1 The provisions of this Agreement shall continue in full force and effect at all times until the earliest to occur of (i)\nthe filing of an exchange offer, offering memorandum or disclosure statement with respect to the 2016 Notes or\nConvertible Notes, provided that, to the extent CEDC and the Recipient continue discussions on the terms of a\nRestructuring following such filing, this period shall extend until the filing of an amended exchange offer, offering\nmemorandum or disclosure statement reflecting such discussions or (ii) 9:00 a.m . (GMT) on March 5, 2013, whereupon\nthis Agreement shall terminate and be of no further force or effect (the “Termination Date”), other than with respect to\nthe rights and obligations of CEDC and Recipient per Section 7.2 hereof.\n-6-\n7.2 On the Termination Date, CEDC shall publicly file a document (the “Cleansing Document”) containing all of the\nwritten and oral Confidential Information that constitutes material non-public information and that was provided by\nCEDC or its advisors to any of (a) the Recipient or its Representatives or (b) any holder of securities who is subject to a\nconfidentiality agreement substantially similar to this Agreement (or to such holder ’s Representatives) that was\nsubsequently shared with the Recipient or its Representatives; provided that such Confidential Information shall not\ninclude any information only disclosed to the Recipients' advisors and specifically designated as ‘Non-Cleansing\nInformation’ by CEDC at the time of such disclosure (such Confidential Information other than the ‘Non-Cleansing\nInformation’ being the “Disclosure Information”). As promptly as practicable, CEDC will provide the Recipient with a\ndraft of the Cleansing Document. The Cleansing Document shall be the offering memorandum and/or disclosure\nstatement and/or Form 8-K or any periodic report required or permitted to be filed under the Exchange Act with the\nSecurities Exchange Commission (the “SEC”) or, if the SEC’s EDGAR filing system is not available, in such other\nmanner that CEDC reasonably determines results in public dissemination of such information. If CEDC does not file the\nCleansing Document on the Termination Date as required in accordance with this Section 7.2, then Recipient and/or its\nRepresentatives shall be entitled to disclose the Confidential Information that was provided by CEDC or any of its\nSubsidiaries hereunder without liability to the extent that Recipient or its Representatives reasonably believes that the\ninformation constitutes material non-public information that is required to allow it to freely trade, through the issuance of\na press release or similar form of public communication, without any liability or breach under this Agreement (such an\nannouncement, the “Recipient’s Cleansing Announcement”). For the avoidance of doubt, if the Cleansing Document\nfiled by CEDC pursuant hereto is not in sufficient detail to ensure that, in the reasonable opinion of each of the\nRecipients or their Representatives, the Recipients and their Representatives will be cleansed of any Confidential\nInformation hereunder such that, following the filing of the Cleansing Document by CEDC, no Recipient shall be\nrestricted, prevented or prohibited from trading any securities under applicable insider dealing or market abuse laws or\nregulations in any jurisdiction or pursuant to any other applicable laws or regulations, then the Recipients may make a\nRecipient’s Cleansing Announcement in the manner set forth above in this Section 7.2.\n[Signatures on the Following Page ]\n-7-\nIN WITNESS WHEREOF, this Agreement is executed by the undersigned parties. The parties hereto further certify that\nthe persons signing this Agreement are duly authorized to do so.\nCENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy: /s/ Grant Winterton\nPrint Name: Grant Winterton\nTitle: Chief Executive Officer\nW&L ENTERPRISES LTD.\nBy: /s/ Mark Kaufman\nPrint Name: Mark Kaufman\nTitle: Director\n-8-	EX-99.15 2 exhibit-ndaexecutionversion.htm\nEXECUTION VERSION\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made effective as of\nFebruary 18, 2013, by and between Central European Distribution Corporation, a Delaware corporation (“CEDC”) and\nW&L Enterprises Ltd. (the “Recipient”).\n \nWHEREAS, CEDC has issued (i) 3.00% Convertible Notes due 2013 (the “Convertible Notes”) and (ii) $380\nmillion 9.125% Senior Secured Notes due 2016 and €430 ($556.6 million) 8.875% Senior Secured Notes due 2016\n(collectively, the “2016 Notes” and together with the Convertible Notes, the “Notes”).\nWHEREAS, the Recipient holds 7,517,549 shares of CEDC’s outstanding common stock (the “Common\nStock™).\nWHEREAS the Recipient and CEDC wish to enter into discussions with respect to a potential restructuring of the\nNotes and Common Stock (a “Restructuring™).\nWHEREAS, CEDC, in such discussions, may disclose certain confidential information to the Recipient in order\nto initiate, facilitate, and/or progress such restructuring discussions (the “Purpose”).\nNOW THEREFORE, in consideration for receiving certain confidential information and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 Subject to Section 1.2 below, “Confidential Information” means confidential, secret, proprietary or other non-public\ninformation pertaining to the business, operations, brands, marketing plans, financial matters, legal matters, products,\nprojects, business plans or practices, research and development, product development, intellectual property, financial\nmodels, trademarks, trade secrets, accounting and financing data, and methods of production, distribution or\nprocurement, suppliers, distributors, consultants, advisors or employees, directors or officers of CEDC or any of its\nSubsidiaries (defined below) (together, the “CEDC Group”) that is disclosed or otherwise made available, either orally or\nin writing, by any member of the CEDC Group to the Recipient or its affiliates, agents, or advisors (including, without\nlimitation, financial advisors, attorneys, banks and other sources of equity and debt financing and accountants)\n(collectively, “Representatives™).\n1.2 Notwithstanding anything herein to the contrary, Confidential Information shall not include any information that (a)\nis or becomes publicly available (other than through a breach of this Agreement by the Recipient), (b) is in the\npossession of or known to the Recipient or its Representatives prior to such information having been furnished to\nRecipient hereunder, (c) is independently conceived, developed or discovered by the Recipient or on its behalf, (d) is\nmade available to the Recipient or its Representatives by any person other than a member of the CEDC Group without\nany known breach of any obligation of confidentiality of such other person, or (e) is the subject of a written confirmation\nfrom CEDC or any of its Subsidiaries or any member of the CEDC Group stating that any such information is not\nConfidential Information. In clarification of the foregoing, a general disclosure in the public domain will not cause more\nspecific (but related) information to be excluded as Confidential Information under one of the above exceptions.\n1.3 “Subsidiary” of any entity means any other entity in which such first entity owns or Controls, directly or\nindirectly, an amount of the voting securities, other voting interests or voting partnership interests sufficient to elect at\nleast a majority of such other entity’s board of directors or other governing body (or, if there are no such voting interests,\n50% or more of the equity interests of such other entity). For purposes of this Section 1.3, “Control” means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an\nindividual, corporation, partnership, limited partnership or limited liability company, whether through the ownership of\nvoting securities, by contract or otherwise.\n2. Use and Disclosure of Confidential Information.\n2.1 The Recipient agrees that all Confidential Information will be held and maintained by it in the strictest confidence,\nwill be used by it solely and exclusively for the purpose of evaluating, negotiating and implementing a Restructuring,\nand will not, directly or indirectly, be used or disclosed by it for any other purpose whatsoever. CEDC acknowledges that\nRecipient is engaged in businesses similar to those conducted by CEDC and the CEDC Group or other industries in the\nordinary course of Recipient’s business. The Recipient will use reasonable care to maintain the confidentiality of\nConfidential Information, provided that such care shall be at least as great as the precautions taken by the Recipient to\nprotect its own confidential information of similar nature.\n2.2 The Recipient agrees that it will not, without the prior written consent of CEDC, directly or indirectly, disclose all or\nany portion of the Confidential Information, or the substance thereof, to any third party other than its Representatives in\nconnection with the Purpose, except, subject to Section 2.3 below, to the extent required by applicable law or legal\nprocess.\n2.3 The Recipient agrees that if the Recipient is required by any law, court or governmental order to disclose any\nConfidential Information, the Recipient will provide CEDC, to the extent practicable and legally permissible, with\nprompt written notice of such requirement so that CEDC or the applicable member of the CEDC Group may seek an\nappropriate protective order with respect thereto. If such an order is not obtained, only that portion of the Confidential\nInformation shall be furnished that is legally required to be furnished, at the sole expense of CEDC or one of its\nSubsidiaries, and the Recipient shall exercise commercial efforts to obtain reliable assurances that confidential treatment\nwill be accorded such Confidential Information. Notwithstanding the foregoing, notice to CEDC shall not be required\nwhere disclosure is made (i) in response to a request by a regulatory or self-regulatory authority, or (ii) in connection\nwith a routine audit or examination by a bank examiner or auditor, and such request, audit or examination does not\nreference CEDC or this Agreement.\n2.4 The Recipient shall ensure that each of its Representatives who are either provided with Confidential Information, or\notherwise have access to such Confidential Information, are informed of its confidential nature and are directed to abide\nby the terms of this Agreement applicable to Representatives or appropriate duties or obligations of confidentiality\nimposing confidentiality obligations on such Representatives (except that there shall be no requirement to so inform\nwhere the Representative to whom the information is to be disclosed is subject to professional obligations to maintain the\nconfidentiality of the Confidential Information or is otherwise bound by requirements of confidentiality in relation to the\nConfidential Information). The Recipient agrees to be liable for any breach of this Agreement by the Recipient or its\naffiliates or Representatives. The Recipient shall use reasonable efforts to provide written notice to CEDC of any use or\ndisclosure of Confidential Information in breach of this Agreement of which Recipient is aware, including without\nlimitation written details regarding the circumstances and the identity of the individuals or entities who as a result\nreceived or may have received access to such Confidential Information.\n-\n3. Certain Rights and Limitations.\n3.1 The parties hereto are independent of one another and this Agreement does not create any agency, partnership or\nsimilar relationship between the parties hereto. CEDC acknowledges that neither the Recipient nor any of its affiliates,\nnor its or their Representatives, will be deemed to have made any representation or warranty or commitment with respect\nto the Purpose except as may be set forth in one or more final, legally binding definitive agreements. Except as otherwise\nprovided by CEDC, the Recipient (i) acknowledges that neither CEDC nor any of its Representatives make any\nrepresentation or warranty hereunder, either express or implied, as to the truth, accuracy or completeness of any\nConfidential Information, provided, however, that CEDC, the CEDC Group and any of their Representatives shall use\ngood faith efforts to ensure that all Confidential Information furnished to Recipient hereunder is true, accurate and\ncomplete to the best of their knowledge, and (ii) agrees, to the fullest extent permitted by law that in the absence of fraud\nor willful misconduct on their part neither CEDC nor any of its Subsidiaries or Representatives shall have any liability to\nthe Recipient or its Representatives on any basis (including, without limitation, in contract, tort, under federal or state\nsecurities laws or otherwise) as a result of the review by the Recipient or its Representatives or the use of the\nConfidential Information by the Recipient or its Representatives in accordance with the provisions of this Agreement.\n3.2 The Recipient agrees that, upon written request by CEDC, all Confidential Information (and all copies, summaries\nand notes of the contents or parts thereof) and all Company property received by the Recipient shall, as soon as\nreasonably practicable, be either returned to CEDC or, to the extent technically practicable, destroyed (at the Recipient’s\nor its Representatives’ option), except that Recipient and its Representatives may retain copies of Confidential\nInformation as is required to comply with applicable law or regulation or professional standards or internal compliance\nrequirements. The Recipient’s obligations under Section 2 hereof shall survive the return of such tangible embodiments\nof Confidential Information until termination of this Agreement. Notwithstanding anything to the contrary in this\nAgreement, neither Recipient nor any of its Representatives shall be required to delete electronically stored Confidential\nInformation to the extent such deletion would be technologically impracticable or inconsistent with the archival records\nretention policy of the Recipient or its Representatives.\n3.3 The Recipient shall not remove, obscure, overprint, deface or destroy any notice of confidentiality, copyright,\ntrademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential\nInformation the Recipient obtains from the CEDC Group.\n-3-\n3.4 CEDC understands and acknowledges that the Recipient and an affiliate of the Recipient are currently reporting\npersons with respect to CEDC’s common stock on a Schedule 13D under the provisions of §§ 240.13d-1(a) and 13d-2(a)\nof the United States Securities Exchange Act of 1934, among others, and that accordingly the Recipient and its affiliate\nwill have ongoing disclosure obligations thereunder, which shall not be restricted or limited by this Agreement, including\nthat this Agreement shall be disclosed and publicly filed as an amendment to such Schedule 13D.\n4. Remedies. The Recipient acknowledges that a breach of any of the terms of this Agreement may cause irreparable\nharm to CEDC for which CEDC may not be adequately compensated by money damages. Accordingly, the Recipient\nagrees that, in addition to all other remedies available to CEDC, including any member of the CEDC Group, in an action\nat law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, CEDC shall,\nwithout the necessity of proving actual damages or posting any bond or other security, be entitled to seek temporary and\npermanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement. Each\nparty's rights and obligations under this Agreement are cumulative and are in addition to and not in limitation of such\nparty's rights and obligations under law, equity or any other written agreement.\n5. Miscellaneous.\n5.1 This Agreement shall be governed by and construed and take effect as an enforceable contract in accordance with\nthe laws of the State of New York governing such agreements, without regard to conflicts-of-law principles thereof that\nwould require applicability of any other law. The parties hereto agree that any dispute between them relating to this\nAgreement will be resolved solely in the manner set forth in clause (i) below:\n(i) Each of the parties hereto irrevocably submits to the jurisdiction of the United States District Court located in\nthe State of New York and in the Borough of Manhattan, and all appellate courts relating thereto, for the purpose\nof any suit, action, proceeding or judgment relating to or arising out of this Agreement. Service of process in\nconnection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by\nthe same methods as are specified for the giving of notices under this Agreement. Each party hereto irrevocably\nwaives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and\nirrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought\nin an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A\nTRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS\nTHAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.\n5.2 Any notices or other correspondence (hereinafter collectively referred to as “correspondence”) required or permitted\nto be given hereunder shall be in writing and shall be sent by postage prepaid first class mail, courier or facsimile or\ndelivered by hand to the party to whom such correspondence is required or permitted to be given hereunder, and shall be\ndeemed sufficient upon receipt when delivered personally or by courier, overnight delivery service or confirmed\nfacsimile, or three (3) Business Days after being deposited in the regular mail as certified or registered mail (airmail if\nsent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or\nfacsimile number as set forth below:\n4-\n(a) All correspondence to the CEDC Group shall be addressed as follows:\nCentral European Distribution Corporation\nBobrowiecka 6\n00-728 Warsaw\nPoland\nAttention: Grant Winterton\nFacsimile: +48 22 456 60 01\nwith a copy to\nSkadden, Arps, Slate, Meagher & Flom (UK) LLP\n40 Bank St., Canary Wharf\nLondon E14 5DS\nUK\nAttention: Scott Simpson, Esq.\nFacsimile: +44 20 7519 7070\n(b) All correspondence to the Recipient shall be addressed as follows:\nW&L Enterprises Ltd.\nCraigmuir Chambers,\nP.O. Box 71,\nRoad Town,\nTortola,\nBritish Virgin Islands\nAttention: Mark Kaufman\nFacsimile: +7-495-232-6138\nwith copies to\nDarrois Villey Maillot Brochier A.A.R.P.I.\n69, avenue Victor Hugo\nParis 75783\nFrance\nAttention: Ben Burman, Esq.\nFacsimile: + 33145024959\nand\nWachtell, Lipton Rosen & Katz\n51 West 52nd Street\nNew York, New York 10019\nAttention: Adam Emmerich, Esq.\nFacsimile: (212) 403-2234\n(c) Either party may change the address to which correspondence to it is to be addressed by written notification\nas provided for herein.\n5.3 This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior and contemporaneous agreements and understandings whether written or oral, express or\nimplied. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors\nand permitted assigns, including without limitation the heirs, executors and legal representatives of each such party. The\nRecipient acknowledges and agrees that all members of the CEDC Group are third party beneficiaries of this\nAgreement. Except where expressly indicated otherwise, the words “written” or “in writing” shall include, but not be\nlimited to, written or printed documents, electronic and facsimile transmissions and computer disks or tapes (whether\nmachine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of\ncompetent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full force and\neffect to the fullest extent permitted by applicable law. Upon such determination of invalidity or unenforceability, the\nparties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as\npossible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as\noriginally contemplated to the fullest extent possible. No amendment, modification or alteration of the terms of this\nAgreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising\nany right in respect to this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any\nright will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right.\nAny such waiver shall be effective only in the specific instance and for the purpose given. This Agreement may be\nsigned in one or more counterparts, each of which shall be deemed to be an original for all purposes.\n6. Securities Laws. The Recipient acknowledges that it is aware (and, if applicable, that its Representatives who are\napprised of this matter have been advised) that the United States securities laws prohibit any person who has material\nnon-public information about a company from purchasing or selling securities of such company, or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person is likely\nto purchase or sell such securities. The Recipient agrees that, to the extent that it has actually received Confidential\nInformation pursuant to this Agreement that constitutes material non-public information, it will not trade any securities\nof CEDC or any of its Subsidiaries prior to the termination of this Agreement and that it will not use any Confidential\nInformation in contravention of the United States securities laws.\n7. Termination.\n7.1 The provisions of this Agreement shall continue in full force and effect at all times until the earliest to occur of (i)\nthe filing of an exchange offer, offering memorandum or disclosure statement with respect to the 2016 Notes or\nConvertible Notes, provided that, to the extent CEDC and the Recipient continue discussions on the terms of a\nRestructuring following such filing, this period shall extend until the filing of an amended exchange offer, offering\nmemorandum or disclosure statement reflecting such discussions or (ii) 9:00 a.m. (GMT) on March 5, 2013, whereupon\nthis Agreement shall terminate and be of no further force or effect (the “Termination Date”), other than with respect to\nthe rights and obligations of CEDC and Recipient per Section 7.2 hereof.\n-6-\n7.2 On the Termination Date, CEDC shall publicly file a document (the “Cleansing Document”) containing all of the\nwritten and oral Confidential Information that constitutes material non-public information and that was provided by\nCEDC or its advisors to any of (a) the Recipient or its Representatives or (b) any holder of securities who is subject to a\nconfidentiality agreement substantially similar to this Agreement (or to such holder’s Representatives) that was\nsubsequently shared with the Recipient or its Representatives; provided that such Confidential Information shall not\ninclude any information only disclosed to the Recipients' advisors and specifically designated as ‘Non-Cleansing\nInformation’ by CEDC at the time of such disclosure (such Confidential Information other than the ‘Non-Cleansing\nInformation’ being the “Disclosure Information”). As promptly as practicable, CEDC will provide the Recipient with a\ndraft of the Cleansing Document. The Cleansing Document shall be the offering memorandum and/or disclosure\nstatement and/or Form 8-K or any periodic report required or permitted to be filed under the Exchange Act with the\nSecurities Exchange Commission (the “SEC”) or, if the SEC’s EDGAR filing system is not available, in such other\nmanner that CEDC reasonably determines results in public dissemination of such information. If CEDC does not file the\nCleansing Document on the Termination Date as required in accordance with this Section 7.2, then Recipient and/or its\nRepresentatives shall be entitled to disclose the Confidential Information that was provided by CEDC or any of its\nSubsidiaries hereunder without liability to the extent that Recipient or its Representatives reasonably believes that the\ninformation constitutes material non-public information that is required to allow it to freely trade, through the issuance of\na press release or similar form of public communication, without any liability or breach under this Agreement (such an\nannouncement, the “Recipient’s Cleansing Announcement”). For the avoidance of doubt, if the Cleansing Document\nfiled by CEDC pursuant hereto is not in sufficient detail to ensure that, in the reasonable opinion of each of the\nRecipients or their Representatives, the Recipients and their Representatives will be cleansed of any Confidential\nInformation hereunder such that, following the filing of the Cleansing Document by CEDC, no Recipient shall be\nrestricted, prevented or prohibited from trading any securities under applicable insider dealing or market abuse laws or\nregulations in any jurisdiction or pursuant to any other applicable laws or regulations, then the Recipients may make a\nRecipient’s Cleansing Announcement in the manner set forth above in this Section 7.2.\n[Signatures on the Following Page ]\n_7-\nIN WITNESS WHEREOF, this Agreement is executed by the undersigned parties. The parties hereto further certify that the persons signing this Agreement are duly authorized to do so. CENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy: /s/ Grant Winterton\nPrint Name: Grant Winterton\nTitle: Chief Executive Officer\nW&L ENTERPRISES LTD.\nBy: /s/ Mark Kaufman\nPrint Name: Mark Kaufman\nTitle: Director	EX-99.15 2 exhibit-ndaexecutionversion.htm\nEXECUTION VERSION\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (this "Agreement") is made effective as of\nFebruary 18, 2013, by and between Central European Distribution Corporation, a Delaware corporation ("CEDC") and\nW&L Enterprises Ltd. (the "Recipient").\nWHEREAS, CEDC has issued (i) 3.00% Convertible Notes due 2013 (the "Convertible Notes") and (ii) $380\nmillion 9.125% Senior Secured Notes due 2016 and E430 ($556.6 million) 8.875% Senior Secured Notes due 2016\n(collectively, the "2016 Notes" and together with the Convertible Notes, the "Notes").\nWHEREAS, the Recipient holds 7,517,549 shares of CEDC's outstanding common stock (the "Common\nStock").\nWHEREAS the Recipient and CEDC wish to enter into discussions with respect to a potential restructuring of the\nNotes and Common Stock (a "Restructuring").\nWHEREAS, CEDC, in such discussions, may disclose certain confidential information to the Recipient in order\nto initiate, facilitate, and/or progress such restructuring discussions (the "Purpose").\nNOW THEREFORE, in consideration for receiving certain confidential information and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 Subject to Section 1.2 below, "Confidential Information" means confidential, secret, proprietary or other non-public\ninformation pertaining to the business, operations, brands, marketing plans, financial matters, legal matters, products,\nprojects, business plans or practices, research and development, product development, intellectual property, financial\nmodels, trademarks, trade secrets, accounting and financing data, and methods of production, distribution or\nprocurement,\nsuppliers,\ndistributors,\nconsultants,\nadvisors\nor\nemployees,\ndirectors\nor\nofficers\nof\nCEDC\nor\nany\nof\nits\nSubsidiaries (defined below) (together, the "CEDC Group") that is disclosed or otherwise made available, either orally or\nin writing, by any member of the CEDC Group to the Recipient or its affiliates, agents, or advisors (including, without\nlimitation, financial advisors, attorneys, banks and other sources of equity and debt financing and accountants)\n(collectively, "Representatives").\n1.2 Notwithstanding anything herein to the contrary, Confidential Information shall not include any information that (a)\nis or becomes publicly available (other than through a breach of this Agreement by the Recipient), (b) is in the\npossession of or known to the Recipient or its Representatives prior to such information having been furnished\nto\nRecipient hereunder, (c) is independently conceived, developed or discovered by the Recipient or on its behalf, (d) is\nmade available to the Recipient or its Representatives by any person other than a member of the CEDC Group without\nany known breach of any obligation of confidentiality of such other person, or (e) is the subject of a written confirmation\nfrom CEDC or any of its Subsidiaries or any member of the CEDC Group stating that any such information is not\nConfidential Information. In clarification of the foregoing, a general disclosure in the public domain will not cause more\nspecific (but related) information to be excluded as Confidential Information under one of the above exceptions.\n1.3\n"Subsidiary." of any entity means any other entity in which such first entity owns or Controls, directly or\nindirectly, an amount of the voting securities, other voting interests or voting partnership interests sufficient to elect at\nleast a majority of such other entity's board of directors or other governing body (or, if there are no such voting interests,\n50% or more of the equity interests of such other entity). For purposes of this Section 1.3, "Control" means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an\nindividual, corporation, partnership, limited partnership or limited liability company, whether through the ownership of\nvoting securities, by contract or otherwise.\n2. Use and Disclosure of Confidential Information.\n2.1 The Recipient agrees that all Confidential Information will be held and maintained by it in the strictest confidence,\nwill be used by it solely and exclusively for the purpose of evaluating, negotiating and implementing a Restructuring,\nand\nwill not, directly or indirectly, be used or disclosed by it for any other purpose whatsoever. CEDC\nacknowledges\nthat\nRecipient is engaged in businesses similar to those conducted by CEDC and the CEDC Group or other industries in the\nordinary course of Recipient's business. The Recipient will use reasonable care to maintain the confidentiality of\nConfidential Information, provided that such care shall be at least as great as the precautions taken by the Recipient to\nprotect its own confidential information of similar nature.\n2.2 The Recipient agrees that it will not, without the prior written consent of CEDC, directly or indirectly, disclose all or\nany portion of the Confidential Information, or the substance thereof, to any third party other than its Representatives in\nconnection with the Purpose, except, subject to Section 2.3 below, to the extent required by applicable law or legal\nprocess.\n2.3 The Recipient agrees that if the Recipient is required by any law, court or governmental order to disclose any\nConfidential Information, the Recipient will provide CEDC, to the extent practicable and legally permissible, with\nprompt written notice of such requirement so that CEDC or the applicable member of the CEDC Group may seek an\nappropriate protective order with respect thereto. If such an order is not obtained, only that portion of the Confidential\nInformation shall be furnished that is legally required to be furnished, at the sole expense of CEDC or one of its\nSubsidiaries, and the Recipient shall exercise commercial efforts to obtain reliable assurances that confidential treatment\nwill be accorded such Confidential Information. Notwithstanding the foregoing, notice to CEDC shall not be required\nwhere\ndisclosure\nis\nmade\n(i)\nin\nresponse\nto\na\nrequest\nby\na\nregulatory\nor\nself-regulatory\nauthority,\nor\n(ii)\nin\nconnection\nwith a routine audit or examination by a bank examiner or auditor, and such request, audit or examination does not\nreference CEDC or this Agreement.\n2.4 The Recipient shall ensure that each of its Representatives who are either provided with Confidential Information, or\notherwise have access to such Confidential Information, are informed of its confidential nature and are directed to abide\nby the terms of this Agreement applicable to Representatives or appropriate duties or obligations of confidentiality\nimposing confidentiality obligations on such Representatives (except that there shall be no requirement to so inform\nwhere the Representative to whom the information is to be disclosed is subject to professional obligations to maintain the\nconfidentiality of the Confidential Information or is otherwise bound by requirements of confidentiality in relation to the\nConfidential Information). The Recipient agrees to be liable for any breach of this Agreement by the Recipient or its\naffiliates or Representatives. The Recipient shall use reasonable efforts to provide written notice to CEDC of any use or\ndisclosure of Confidential Information in breach of this Agreement of which Recipient is aware, including without\nlimitation written details regarding the circumstances and the identity of the individuals or entities who as a result\nreceived or may have received access to such Confidential Information.\n-2-\n3. Certain Rights and Limitations.\n3.1 The parties hereto are independent of one another and this Agreement does not create any agency, partnership or\nsimilar relationship between the parties hereto. CEDC acknowledges that neither the Recipient nor any of its affiliates,\nnor its or their Representatives, will be deemed to have made any representation or warranty or commitment with respect\nto the Purpose except as may be set forth in one or more final, legally binding definitive agreements. Except as otherwise\nprovided by CEDC, the Recipient (i) acknowledges that neither CEDC nor any of its Representatives make any\nrepresentation or warranty hereunder, either express or implied, as to the truth, accuracy or completeness of any\nConfidential Information, provided, however, that CEDC, the CEDC Group and any of their Representatives shall\nuse\ngood faith efforts to ensure that all Confidential Information furnished to Recipient hereunder is true, accurate and\ncomplete to the best of their knowledge, and (ii) agrees, to the fullest extent permitted by law that in the absence of fraud\nor willful misconduct on their part neither CEDC nor any of its Subsidiaries or Representatives shall have any liability to\nthe\nRecipient\nor\nits\nRepresentatives\non\nany\nbasis\n(including,\nwithout\nlimitation,\nin\ncontract,\ntort,\nunder\nfederal\nor\nstate\nsecurities laws or otherwise) as a result of the review by the Recipient or its Representatives or the use of the\nConfidential Information by the Recipient or its Representatives in accordance with the provisions of this Agreement.\n3.2 The Recipient agrees that, upon written request by CEDC, all Confidential Information (and all copies, summaries\nand\nnotes\nof\nthe\ncontents\nor\nparts\nthereof)\nand\nall\nCompany\nproperty\nreceived\nby\nthe\nRecipient\nshall,\nas\nsoon\nas\nreasonably practicable, be either returned to CEDC or, to the extent technically practicable, destroyed (at the Recipient's\nor its Representatives' option), except that Recipient and its Representatives may retain copies of Confidential\nInformation as is required to comply with applicable law or regulation or professional standards or internal compliance\nrequirements. The Recipient's obligations under Section 2 hereof shall survive the return of such tangible embodiments\nof Confidential Information until termination of this Agreement. Notwithstanding anything to the contrary in this\nAgreement, neither Recipient nor any of its Representatives shall be required to delete electronically stored Confidential\nInformation to the extent such deletion would be technologically impracticable or inconsistent with the archival records\nretention policy of the Recipient or its Representatives.\n3.3 The Recipient shall not remove, obscure, overprint, deface or destroy any notice of confidentiality, copyright,\ntrademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential\nInformation the Recipient obtains from the CEDC Group.\n-3-\n3.4 CEDC understands and acknowledges that the Recipient and an affiliate of the Recipient are currently reporting\npersons with respect to CEDC'S common stock on a Schedule 13D under the provisions of 240.13d-1(a) and 13d-2(a)\nof the United States Securities Exchange Act of 1934, among others, and that accordingly the Recipient and its affiliate\nwill have ongoing disclosure obligations thereunder, which shall not be restricted or limited by this Agreement, including\nthat this Agreement shall be disclosed and publicly filed as an amendment to such Schedule 13D.\n4. Remedies. The Recipient acknowledges that a breach of any of the terms of this Agreement may cause irreparable\nharm to CEDC for which CEDC may not be adequately compensated by money damages. Accordingly, the Recipient\nagrees that, in addition to all other remedies available to CEDC, including any member of the CEDC Group, in an action\nat law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, CEDC shall,\nwithout the necessity of proving actual damages or posting any bond or other security, be entitled to seek temporary and\npermanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement. Each\nparty's rights and obligations under this Agreement are cumulative and are in addition to and not in limitation of such\nparty's rights and obligations under law, equity or any other written agreement.\n5. Miscellaneous.\n5.1 This Agreement shall be governed by and construed and take effect as an enforceable contract in accordance with\nthe laws of the State of New York governing such agreements, without regard to conflicts-of-law principles thereof that\nwould require applicability of any other law. The parties hereto agree that any dispute between them relating to this\nAgreement will be resolved solely in the manner set forth in clause (i) below:\n(i) Each of the parties hereto irrevocably submits to the jurisdiction of the United States District Court located\nin\nthe State of New York and in the Borough of Manhattan, and all appellate courts relating thereto, for the purpose\nof any suit, action, proceeding or judgment relating to or arising out of this Agreement. Service of process in\nconnection with any such suit, action or proceeding may be served on each party hereto anywhere in the world\nby\nthe same methods as are specified for the giving of notices under this Agreement. Each party hereto irrevocably\nwaives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and\nirrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought\nin an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A\nTRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS\nTHAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.\n5.2 Any notices or other correspondence (hereinafter collectively referred to as "correspondence") required or permitted\nto be given hereunder shall be in writing and shall be sent by postage prepaid first class mail, courier or facsimile\nor\ndelivered by hand to the party to whom such correspondence is required or permitted to be given hereunder, and shall be\ndeemed\nsufficient\nupon\nreceipt\nwhen\ndelivered\npersonally\nor\nby\ncourier,\novernight\ndelivery\nservice\nor\nconfirmed\nfacsimile, or three (3) Business Days after being deposited in the regular mail as certified or registered mail (airmail if\nsent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party's address or\nfacsimile number as set forth below:\n-4-\n(a) All correspondence to the CEDC Group shall be addressed as follows:\nCentral European Distribution Corporation\nBobrowiecka 6\n00-728 Warsaw\nPoland\nAttention: Grant Winterton\nFacsimile: +48 22 456 60 01\nwith a copy to\nSkadden, Arps, Slate, Meagher & Flom (UK) LLP\n40 Bank St., Canary Wharf\nLondon E14 5DS\nUK\nAttention: Scott Simpson, Esq.\nFacsimile: +4420 7519 7070 +44 20 7519 7070\n(b) All correspondence to the Recipient shall be addressed as follows:\nW&L Enterprises Ltd.\nCraigmuir Chambers,\nP.O. Box 71,\nRoad Town,\nTortola,\nBritish Virgin Islands\nAttention: Mark Kaufman\nFacsimile: +7-495-232-6138\nwith copies to\nDarrois Villey Maillot Brochier A.A.R.P.I.\n69, avenue Victor Hugo\nParis 75783\nFrance\nAttention: Ben Burman, Esq.\nFacsimile: + +3314502 4959 33 1 45 02 49 59\nand\nWachtell, Lipton Rosen & Katz\n51 West 52nd Street\nNew York, New York 10019\nAttention: Adam Emmerich, Esq.\nFacsimile: (212) 403-2234\n-5-\n(c) Either party may change the address to which correspondence to it is to be addressed by written notification\nas provided for herein.\n5.3 This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior and contemporaneous agreements and understandings whether written or oral, express or\nimplied. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors\nand permitted assigns, including without limitation the heirs, executors and legal representatives of each such party. The\nRecipient acknowledges and agrees that all members of the CEDC Group are third party beneficiaries of this\nAgreement. Except where expressly indicated otherwise, the words "written" or "in writing" shall include, but not be\nlimited to, written or printed documents, electronic and facsimile transmissions and computer disks or tapes (whether\nmachine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of\ncompetent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full force and\neffect to the fullest extent permitted by applicable law. Upon such determination of invalidity or unenforceability,\nthe\nparties\nshall\nnegotiate\nin\ngood\nfaith\nto\nmodify\nthis\nAgreement\nso\nas\nto\neffect\nthe\noriginal\nintent\nof\nthe\nparties\nas\nclosely\nas\npossible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as\noriginally contemplated to the fullest extent possible. No amendment, modification or alteration of the terms of this\nAgreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising\nany right in respect to this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any\nright\nwill\nnot\nbe\npresumed\nto\npreclude\nany\nsubsequent\nor\nfurther\nexercise\nof\nthat\nright\nor\nthe\nexercise\nof\nany\nother\nright.\nAny such waiver shall be effective only in the specific instance and for the purpose given. This Agreement may\nbe\nsigned in one or more counterparts, each of which shall be deemed to be an original for all purposes.\n6.\nSecurities Laws. The Recipient acknowledges that it is aware (and, if applicable, that its Representatives who are\napprised of this matter have been advised) that the United States securities laws prohibit any person who has material\nnon-public information about a company from purchasing or selling securities of such company, or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person is likely\nto purchase or sell such securities. The Recipient agrees that, to the extent that it has actually received Confidential\nInformation pursuant to this Agreement that constitutes material non-public information, it will not trade any securities\nof CEDC or any of its Subsidiaries prior to the termination of this Agreement and that it will not use any Confidential\nInformation in contravention of the United States securities laws.\n7. Termination.\n7.1 The provisions of this Agreement shall continue in full force and effect at all times until the earliest to occur of (i)\nthe filing of an exchange offer, offering memorandum or disclosure statement with respect to the 2016 Notes or\nConvertible Notes, provided that, to the extent CEDC and the Recipient continue discussions on the terms of a\nRestructuring\nfollowing\nsuch\nfiling,\nthis\nperiod\nshall\nextend\nuntil\nthe\nfiling\nof\nan\namended\nexchange\noffer,\noffering\nmemorandum or disclosure statement reflecting such discussions or (ii) 9:00 a.m. (GMT) on March 5, 2013, whereupon\nthis Agreement shall terminate and be of no further force or effect (the "Termination Date"), other than with respect\nto\nthe rights and obligations of CEDC and Recipient per Section 7.2 hereof.\n-6-\n7.2 On the Termination Date, CEDC shall publicly file a document (the "Cleansing Document") containing all of the\nwritten and oral Confidential Information that constitutes material non-public information and that was provided by\nCEDC or its advisors to any of (a) the Recipient or its Representatives or (b) any holder of securities who is subject to a\nconfidentiality agreement substantially similar to this Agreement (or to such holder's Representatives) that was\nsubsequently shared with the Recipient or its Representatives; provided that such Confidential Information shall not\ninclude any information only disclosed to the Recipients' advisors and specifically designated as 'Non-Cleansing\nInformation' by CEDC at the time of such disclosure (such Confidential Information other than the 'Non-Cleansing\nInformation' being the "Disclosure Information"). As promptly as practicable, CEDC will provide the Recipient with a\ndraft of the Cleansing Document. The Cleansing Document shall be the offering memorandum and/or disclosure\nstatement and/or Form 8-K or any periodic report required or permitted to be filed under the Exchange Act with the\nSecurities Exchange Commission (the "SEC") or, if the SEC's EDGAR filing system is not available, in such other\nmanner that CEDC reasonably determines results in public dissemination of such information. If CEDC does not file the\nCleansing\nDocument\non\nthe\nTermination\nDate\nas\nrequired\nin\naccordance\nwith\nthis\nSection\n7.2,\nthen\nRecipient\nand/or\nits\nRepresentatives shall be entitled to disclose the Confidential Information that was provided by CEDC or any of its\nSubsidiaries hereunder without liability to the extent that Recipient or its Representatives reasonably believes that the\ninformation constitutes material non-public information that is required to allow it to freely trade, through the issuance\nof\na\npress release or similar form of public communication, without any liability or breach under this Agreement (such an\nannouncement,\nthe\n"Recipient's\nCleansingAnnouncement").\nFor\nthe\navoidance\nof\ndoubt,\nif\nthe\nCleansing\nDocument\nfiled by CEDC pursuant hereto is not in sufficient detail to ensure that, in the reasonable opinion of each of the\nRecipients or their Representatives, the Recipients and their Representatives will be cleansed of any Confidential\nInformation hereunder such that, following the filing of the Cleansing Document by CEDC, no Recipient shall be\nrestricted, prevented or prohibited from trading any securities under applicable insider dealing or market abuse laws or\nregulations in any jurisdiction or pursuant to any other applicable laws or regulations, then the Recipients may make a\nRecipient's Cleansing Announcement in the manner set forth above in this Section 7.2.\n[Signatures on the Following Page ]\n-7-\nIN WITNESS WHEREOF, this Agreement is executed by the undersigned parties. The parties hereto further certify that\nthe persons signing this Agreement are duly authorized to do SO.\nCENTRAL EUROPEAN DISTRIBUTION\nW&L ENTERPRISES LTD.\nCORPORATION\nBy: /s/ Grant Winterton\nBy: /s/ Mark Kaufman\nPrint Name: Grant Winterton\nPrint Name: Mark Kaufman\nTitle: Chief Executive Officer\nTitle: Director\n-8-	EX-99.15 2 exhibit-ndaexecutionversion.htm\nEXECUTION VERSION\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made effective as of\nFebruary 18, 2013, by and between Central European Distribution Corporation, a Delaware corporation (“CEDC”) and\nW&L Enterprises Ltd. (the “Recipient”).\nWHEREAS, CEDC has issued (i) 3.00% Convertible Notes due 2013 (the “Convertible Notes”) and (ii) $380\nmillion 9.125% Senior Secured Notes due 2016 and €430 ($556.6 million) 8.875% Senior Secured Notes due 2016\n(collectively, the “2016 Notes” and together with the Convertible Notes, the “Notes”).\nWHEREAS, the Recipient holds 7,517,549 shares of CEDC’s outstanding common stock (the “Common\nStock”).\nWHEREAS the Recipient and CEDC wish to enter into discussions with respect to a potential restructuring of the\nNotes and Common Stock (a “Restructuring”).\nWHEREAS, CEDC, in such discussions, may disclose certain confidential information to the Recipient in order\nto initiate, facilitate, and/or progress such restructuring discussions (the “Purpose”).\nNOW THEREFORE, in consideration for receiving certain confidential information and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 Subject to Section 1.2 below, “Confidential Information” means confidential, secret, proprietary or other non-public\ninformation pertaining to the business, operations, brands, marketing plans, financial matters, legal matters, products,\nprojects, business plans or practices, research and development, product development, intellectual property, financial\nmodels, trademarks, trade secrets, accounting and financing data, and methods of production, distribution or\nprocurement, suppliers, distributors, consultants, advisors or employees, directors or officers of CEDC or any of its\nSubsidiaries (defined below) (together, the “CEDC Group”) that is disclosed or otherwise made available, either orally or\nin writing, by any member of the CEDC Group to the Recipient or its affiliates, agents, or advisors (including, without\nlimitation, financial advisors, attorneys, banks and other sources of equity and debt financing and accountants)\n(collectively, “Representatives”).\n1.2 Notwithstanding anything herein to the contrary, Confidential Information shall not include any information that (a)\nis or becomes publicly available (other than through a breach of this Agreement by the Recipient), (b) is in the\npossession of or known to the Recipient or its Representatives prior to such information having been furnished to\nRecipient hereunder, (c) is independently conceived, developed or discovered by the Recipient or on its behalf, (d) is\nmade available to the Recipient or its Representatives by any person other than a member of the CEDC Group without\nany known breach of any obligation of confidentiality of such other person, or (e) is the subject of a written confirmation\nfrom CEDC or any of its Subsidiaries or any member of the CEDC Group stating that any such information is not\nConfidential Information. In clarification of the foregoing, a general disclosure in the public domain will not cause more\nspecific (but related) information to be excluded as Confidential Information under one of the above exceptions.\n1.3\n“Subsidiary” of any entity means any other entity in which such first entity owns or Controls, directly or\nindirectly, an amount of the voting securities, other voting interests or voting partnership interests sufficient to elect at\nleast a majority of such other entity’s board of directors or other governing body (or, if there are no such voting interests,\n50% or more of the equity interests of such other entity). For purposes of this Section 1.3, “Control” means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an\nindividual, corporation, partnership, limited partnership or limited liability company, whether through the ownership of\nvoting securities, by contract or otherwise.\n2. Use and Disclosure of Confidential Information.\n2.1 The Recipient agrees that all Confidential Information will be held and maintained by it in the strictest confidence,\nwill be used by it solely and exclusively for the purpose of evaluating, negotiating and implementing a Restructuring,\nand will not, directly or indirectly, be used or disclosed by it for any other purpose whatsoever. CEDC acknowledges that\nRecipient is engaged in businesses similar to those conducted by CEDC and the CEDC Group or other industries in the\nordinary course of Recipient’s business. The Recipient will use reasonable care to maintain the confidentiality of\nConfidential Information, provided that such care shall be at least as great as the precautions taken by the Recipient to\nprotect its own confidential information of similar nature.\n2.2 The Recipient agrees that it will not, without the prior written consent of CEDC, directly or indirectly, disclose all or\nany portion of the Confidential Information, or the substance thereof, to any third party other than its Representatives in\nconnection with the Purpose, except, subject to Section 2.3 below, to the extent required by applicable law or legal\nprocess.\n2.3 The Recipient agrees that if the Recipient is required by any law, court or governmental order to disclose any\nConfidential Information, the Recipient will provide CEDC, to the extent practicable and legally permissible, with\nprompt written notice of such requirement so that CEDC or the applicable member of the CEDC Group may seek an\nappropriate protective order with respect thereto. If such an order is not obtained, only that portion of the Confidential\nInformation shall be furnished that is legally required to be furnished, at the sole expense of CEDC or one of its\nSubsidiaries, and the Recipient shall exercise commercial efforts to obtain reliable assurances that confidential treatment\nwill be accorded such Confidential Information. Notwithstanding the foregoing, notice to CEDC shall not be required\nwhere disclosure is made (i) in response to a request by a regulatory or self-regulatory authority, or (ii) in connection\nwith a routine audit or examination by a bank examiner or auditor, and such request, audit or examination does not\nreference CEDC or this Agreement.\n2.4 The Recipient shall ensure that each of its Representatives who are either provided with Confidential Information, or\notherwise have access to such Confidential Information, are informed of its confidential nature and are directed to abide\nby the terms of this Agreement applicable to Representatives or appropriate duties or obligations of confidentiality\nimposing confidentiality obligations on such Representatives (except that there shall be no requirement to so inform\nwhere the Representative to whom the information is to be disclosed is subject to professional obligations to maintain the\nconfidentiality of the Confidential Information or is otherwise bound by requirements of confidentiality in relation to the\nConfidential Information). The Recipient agrees to be liable for any breach of this Agreement by the Recipient or its\naffiliates or Representatives. The Recipient shall use reasonable efforts to provide written notice to CEDC of any use or\ndisclosure of Confidential Information in breach of this Agreement of which Recipient is aware, including without\nlimitation written details regarding the circumstances and the identity of the individuals or entities who as a result\nreceived or may have received access to such Confidential Information.\n-2-\n3. Certain Rights and Limitations.\n3.1 The parties hereto are independent of one another and this Agreement does not create any agency, partnership or\nsimilar relationship between the parties hereto. CEDC acknowledges that neither the Recipient nor any of its affiliates,\nnor its or their Representatives, will be deemed to have made any representation or warranty or commitment with respect\nto the Purpose except as may be set forth in one or more final, legally binding definitive agreements. Except as otherwise\nprovided by CEDC, the Recipient (i) acknowledges that neither CEDC nor any of its Representatives make any\nrepresentation or warranty hereunder, either express or implied, as to the truth, accuracy or completeness of any\nConfidential Information, provided, however, that CEDC, the CEDC Group and any of their Representatives shall use\ngood faith efforts to ensure that all Confidential Information furnished to Recipient hereunder is true, accurate and\ncomplete to the best of their knowledge, and (ii) agrees, to the fullest extent permitted by law that in the absence of fraud\nor willful misconduct on their part neither CEDC nor any of its Subsidiaries or Representatives shall have any liability to\nthe Recipient or its Representatives on any basis (including, without limitation, in contract, tort, under federal or state\nsecurities laws or otherwise) as a result of the review by the Recipient or its Representatives or the use of the\nConfidential Information by the Recipient or its Representatives in accordance with the provisions of this Agreement.\n3.2 The Recipient agrees that, upon written request by CEDC, all Confidential Information (and all copies, summaries\nand notes of the contents or parts thereof) and all Company property received by the Recipient shall, as soon as\nreasonably practicable, be either returned to CEDC or, to the extent technically practicable, destroyed (at the Recipient’s\nor its Representatives’ option), except that Recipient and its Representatives may retain copies of Confidential\nInformation as is required to comply with applicable law or regulation or professional standards or internal compliance\nrequirements. The Recipient’s obligations under Section 2 hereof shall survive the return of such tangible embodiments\nof Confidential Information until termination of this Agreement. Notwithstanding anything to the contrary in this\nAgreement, neither Recipient nor any of its Representatives shall be required to delete electronically stored Confidential\nInformation to the extent such deletion would be technologically impracticable or inconsistent with the archival records\nretention policy of the Recipient or its Representatives.\n3.3 The Recipient shall not remove, obscure, overprint, deface or destroy any notice of confidentiality, copyright,\ntrademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential\nInformation the Recipient obtains from the CEDC Group.\n-3-\n3.4 CEDC understands and acknowledges that the Recipient and an affiliate of the Recipient are currently reporting\npersons with respect to CEDC’s common stock on a Schedule 13D under the provisions of §§ 240.13d-1(a) and 13d-2(a)\nof the United States Securities Exchange Act of 1934, among others, and that accordingly the Recipient and its affiliate\nwill have ongoing disclosure obligations thereunder, which shall not be restricted or limited by this Agreement, including\nthat this Agreement shall be disclosed and publicly filed as an amendment to such Schedule 13D.\n4. Remedies. The Recipient acknowledges that a breach of any of the terms of this Agreement may cause irreparable\nharm to CEDC for which CEDC may not be adequately compensated by money damages. Accordingly, the Recipient\nagrees that, in addition to all other remedies available to CEDC, including any member of the CEDC Group, in an action\nat law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, CEDC shall,\nwithout the necessity of proving actual damages or posting any bond or other security, be entitled to seek temporary and\npermanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement. Each\nparty's rights and obligations under this Agreement are cumulative and are in addition to and not in limitation of such\nparty's rights and obligations under law, equity or any other written agreement.\n5. Miscellaneous.\n5.1 This Agreement shall be governed by and construed and take effect as an enforceable contract in accordance with\nthe laws of the State of New York governing such agreements, without regard to conflicts-of-law principles thereof that\nwould require applicability of any other law. The parties hereto agree that any dispute between them relating to this\nAgreement will be resolved solely in the manner set forth in clause (i) below:\n(i) Each of the parties hereto irrevocably submits to the jurisdiction of the United States District Court located in\nthe State of New York and in the Borough of Manhattan, and all appellate courts relating thereto, for the purpose\nof any suit, action, proceeding or judgment relating to or arising out of this Agreement. Service of process in\nconnection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by\nthe same methods as are specified for the giving of notices under this Agreement. Each party hereto irrevocably\nwaives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and\nirrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought\nin an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A\nTRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS\nTHAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.\n5.2 Any notices or other correspondence (hereinafter collectively referred to as “correspondence”) required or permitted\nto be given hereunder shall be in writing and shall be sent by postage prepaid first class mail, courier or facsimile or\ndelivered by hand to the party to whom such correspondence is required or permitted to be given hereunder, and shall be\ndeemed sufficient upon receipt when delivered personally or by courier, overnight delivery service or confirmed\nfacsimile, or three (3) Business Days after being deposited in the regular mail as certified or registered mail (airmail if\nsent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or\nfacsimile number as set forth below:\n-4-\n(a) All correspondence to the CEDC Group shall be addressed as follows:\nCentral European Distribution Corporation\nBobrowiecka 6\n00-728 Warsaw\nPoland\nAttention: Grant Winterton\nFacsimile: +48 22 456 60 01\nwith a copy to\nSkadden, Arps, Slate, Meagher & Flom (UK) LLP\n40 Bank St., Canary Wharf\nLondon E14 5DS\nUK\nAttention: Scott Simpson, Esq.\nFacsimile: +44 20 7519 7070\n(b) All correspondence to the Recipient shall be addressed as follows:\nW&L Enterprises Ltd.\nCraigmuir Chambers,\nP.O. Box 71,\nRoad Town,\nTortola,\nBritish Virgin Islands\nAttention: Mark Kaufman\nFacsimile: +7-495-232-6138\nwith copies to\nDarrois Villey Maillot Brochier A.A.R .P.I .\n69, avenue Victor Hugo\nParis 75783\nFrance\nAttention: Ben Burman, Esq.\nFacsimile: + 33 1 45 02 49 59\nand\nWachtell, Lipton Rosen & Katz\n51 West 52nd Street\nNew York, New York 10019\nAttention: Adam Emmerich, Esq.\nFacsimile: (212) 403-2234\n-5-\n(c) Either party may change the address to which correspondence to it is to be addressed by written notification\nas provided for herein.\n5.3 This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior and contemporaneous agreements and understandings whether written or oral, express or\nimplied. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors\nand permitted assigns, including without limitation the heirs, executors and legal representatives of each such party. The\nRecipient acknowledges and agrees that all members of the CEDC Group are third party beneficiaries of this\nAgreement. Except where expressly indicated otherwise, the words “written” or “in writing” shall include, but not be\nlimited to, written or printed documents, electronic and facsimile transmissions and computer disks or tapes (whether\nmachine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of\ncompetent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full force and\neffect to the fullest extent permitted by applicable law. Upon such determination of invalidity or unenforceability, the\nparties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as\npossible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as\noriginally contemplated to the fullest extent possible. No amendment, modification or alteration of the terms of this\nAgreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising\nany right in respect to this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any\nright will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right.\nAny such waiver shall be effective only in the specific instance and for the purpose given. This Agreement may be\nsigned in one or more counterparts, each of which shall be deemed to be an original for all purposes.\n6. Securities Laws. The Recipient acknowledges that it is aware (and, if applicable, that its Representatives who are\napprised of this matter have been advised) that the United States securities laws prohibit any person who has material\nnon-public information about a company from purchasing or selling securities of such company, or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person is likely\nto purchase or sell such securities. The Recipient agrees that, to the extent that it has actually received Confidential\nInformation pursuant to this Agreement that constitutes material non-public information, it will not trade any securities\nof CEDC or any of its Subsidiaries prior to the termination of this Agreement and that it will not use any Confidential\nInformation in contravention of the United States securities laws.\n7. Termination.\n7.1 The provisions of this Agreement shall continue in full force and effect at all times until the earliest to occur of (i)\nthe filing of an exchange offer, offering memorandum or disclosure statement with respect to the 2016 Notes or\nConvertible Notes, provided that, to the extent CEDC and the Recipient continue discussions on the terms of a\nRestructuring following such filing, this period shall extend until the filing of an amended exchange offer, offering\nmemorandum or disclosure statement reflecting such discussions or (ii) 9:00 a.m . (GMT) on March 5, 2013, whereupon\nthis Agreement shall terminate and be of no further force or effect (the “Termination Date”), other than with respect to\nthe rights and obligations of CEDC and Recipient per Section 7.2 hereof.\n-6-\n7.2 On the Termination Date, CEDC shall publicly file a document (the “Cleansing Document”) containing all of the\nwritten and oral Confidential Information that constitutes material non-public information and that was provided by\nCEDC or its advisors to any of (a) the Recipient or its Representatives or (b) any holder of securities who is subject to a\nconfidentiality agreement substantially similar to this Agreement (or to such holder ’s Representatives) that was\nsubsequently shared with the Recipient or its Representatives; provided that such Confidential Information shall not\ninclude any information only disclosed to the Recipients' advisors and specifically designated as ‘Non-Cleansing\nInformation’ by CEDC at the time of such disclosure (such Confidential Information other than the ‘Non-Cleansing\nInformation’ being the “Disclosure Information”). As promptly as practicable, CEDC will provide the Recipient with a\ndraft of the Cleansing Document. The Cleansing Document shall be the offering memorandum and/or disclosure\nstatement and/or Form 8-K or any periodic report required or permitted to be filed under the Exchange Act with the\nSecurities Exchange Commission (the “SEC”) or, if the SEC’s EDGAR filing system is not available, in such other\nmanner that CEDC reasonably determines results in public dissemination of such information. If CEDC does not file the\nCleansing Document on the Termination Date as required in accordance with this Section 7.2, then Recipient and/or its\nRepresentatives shall be entitled to disclose the Confidential Information that was provided by CEDC or any of its\nSubsidiaries hereunder without liability to the extent that Recipient or its Representatives reasonably believes that the\ninformation constitutes material non-public information that is required to allow it to freely trade, through the issuance of\na press release or similar form of public communication, without any liability or breach under this Agreement (such an\nannouncement, the “Recipient’s Cleansing Announcement”). For the avoidance of doubt, if the Cleansing Document\nfiled by CEDC pursuant hereto is not in sufficient detail to ensure that, in the reasonable opinion of each of the\nRecipients or their Representatives, the Recipients and their Representatives will be cleansed of any Confidential\nInformation hereunder such that, following the filing of the Cleansing Document by CEDC, no Recipient shall be\nrestricted, prevented or prohibited from trading any securities under applicable insider dealing or market abuse laws or\nregulations in any jurisdiction or pursuant to any other applicable laws or regulations, then the Recipients may make a\nRecipient’s Cleansing Announcement in the manner set forth above in this Section 7.2.\n[Signatures on the Following Page ]\n-7-\nIN WITNESS WHEREOF, this Agreement is executed by the undersigned parties. The parties hereto further certify that\nthe persons signing this Agreement are duly authorized to do so.\nCENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy: /s/ Grant Winterton\nPrint Name: Grant Winterton\nTitle: Chief Executive Officer\nW&L ENTERPRISES LTD.\nBy: /s/ Mark Kaufman\nPrint Name: Mark Kaufman\nTitle: Director\n-8-
08cc9be2c873778b05d95d03026705ca.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 3 b58545a1exv99wxdyx3y.htm EX-99.(D)(3) MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made as of the 4th day of May 2005 by and between NEON SYSTEMS, INC., a Delaware corporation, with its principal\noffices located at 14100 Southwest Freeway, Suite 500, Sugar Land, Texas 77478 (the “Company”) and Progress Software Corporation, a\nMassachusetts corporation, with its principal offices located at 14 Oak Park, Bedford, Massachusetts 01730 (“PSC”).\nPSC and Company are interested in entering into discussions for the purposes of evaluating a potential business relationship. In order to\nproceed with these discussions, PSC or Company may disclose certain “Confidential Information” of its own (the “Disclosing Party”) to the\nother party (the “Receiving Party”). The Receiving Party agrees to keep such information as “Confidential Information”, subject to the provisions\nof this Agreement. PSC and the Company agree as follows:\n1. “Confidential Information” means certain confidential information or materials relating to the proprietary technical, financial, customer or\nbusiness affairs of the Disclosing Party which is (a) disclosed by the Disclosing Party to the Receiving Party in written or tangible form or (b)\ndisclosed orally by the Disclosing Party to the Receiving Party in connection with the evaluation of a potential business relationship between the\nParties. The Parties acknowledge and agree that any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its\nadvisors or otherwise and irrespective of the form of communication) which is furnished hereunder to the Receiving Party or to its\nrepresentatives now or in the future by or on behalf of the Disclosing Party, including, without limitation, all notes, analyses, compilations,\nstudies, interpretations or other documents prepared by each party or its representatives which contain, reflect or are based upon, in whole or in\npart, the information furnished to such party or its representatives pursuant hereto, shall be considered Confidential Information hereunder. The\nparties expressly agree that the existence of this Agreement is deemed to be Confidential Information of the parties.\n2. Except as required by law, regulation or legal process, the Receiving Party agrees to use the Confidential Information solely for evaluating\na potential business relationship with the Disclosing Party (the “Permitted Use”). The Receiving Party further agrees that it shall keep in\nconfidence and not disclose any part of the Confidential Information to any third party, except to its employees or professional advisors with a\nneed to know and who are made aware of and accept the provisions of this Agreement. PSC and Company agree that neither party shall disclose\nthat any discussions have taken place.\n3. Upon receipt of written notice from the Disclosing Party, the Receiving Party shall return all Confidential Information, in written or\ntangible form, to the Disclosing Party, together with any copies thereof, in the possession of the Receiving Party or that of its professional\nadvisors.\n4. The restrictive obligations set forth herein shall not apply to the disclosure or use of any Confidential Information which (a) is or hereafter\nbecomes public knowledge through no fault of the Receiving Party; (b) is known by the Receiving Party on the date of disclosure and is not\nsubject to any restriction on disclosure provided such knowledge was not obtained from a third party with an obligation of non-disclosure to the\nother party; (c) is disclosed to the Receiving Party by a third party who is not subject to any restriction on disclosure by the Disclosing Party; or\n(d) the Receiving Party can demonstrate was developed by it independently without benefit of, or based on, the disclosures made hereunder.\n5. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive in any geographic area and in any form with the other party’s product(s) or\nservice(s).\n6. The Disclosing Party reserves all rights and benefits afforded under U.S. and international copyright, patent, trade secret and all other\nintellectual property rights in all Confidential Information furnished by the Disclosing Party to the Receiving Party. The Receiving Party does not\nacquire any intellectual property rights under this Agreement or through any disclosure hereunder, except the limited right to use such\nConfidential Information for the Permitted Use in accordance with this Agreement.\n7. This Agreement shall have no force and effect after two (2) years from the date of the last disclosure of Confidential Information hereunder\nor, if a definitive agreement is entered into between the parties relating to a business relationship, upon execution by the parties of said\nagreement.\n8. Each party acknowledges that Confidential Information is owned solely by the Disclosing Party and that the unauthorized disclosure or use\nof such Confidential Information might cause irreparable harm and significant injury, the degree of which may be difficult to ascertain.\nAccordingly, each party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach of this\nAgreement, as well as the right to pursue any and all other rights and remedies available.\n9. Each party (a) acknowledges that it is aware that United States federal and state securities laws and regulations restrict persons with\nmaterial non-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such\ncompany, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell securities of such company, and (b) agrees that it will not use, or cause any third person to use, any\ninformation of the other party or its affiliates in contravention of such laws and regulations.\n-2-\n10. During the term of this Agreement neither party shall, without the prior written approval of the other party, solicit the services of or make\nan offer of employment to any person who is or was, as the case may be, an employee or consultant of the other party during the term of this\nAgreement, unless such solicitation or offer results from a general electronic or print media advertisements of or website postings of employment\nopportunities to which any such employee or consultant responds without any other inducement by a party. In case of breach of this section 10,\nthe parties agree to liquidated damages of $50,000 per person.\n11. This Agreement represents the entire agreement between the parties with respect to its subject matter. The invalidity or unenforceability of\nany part of this Agreement for any reason whatsoever shall not affect the validity or enforceability of the remainder. This Agreement shall he\nconstrued and enforced pursuant to the laws of The Commonwealth of Massachusetts, exclusive of its rules governing conflict of law and choice\nof laws.\nIN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement as of the date first\nwritten above.\nPROGRESS SOFTWARE\nNEON SYSTEMS, INC.\nBy:\n/s/ Evan McDonnell\nBy:\n/s/ Brian D. Helman\nName: Evan McDonnell\nName: Brian D. Helman\nTitle:\nVice President\nTitle:\nChief Financial Officer\n-3-	EX-99.(D)(3) 3 b58545alexv99wxdyx3y.htm EX-99.(D)(3) MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made as of the 4th day of May 2005 by and between NEON SYSTEMS, INC., a Delaware corporation, with its principal\noffices located at 14100 Southwest Freeway, Suite 500, Sugar Land, Texas 77478 (the “Company”) and Progress Software Corporation, a\nMassachusetts corporation, with its principal offices located at 14 Oak Park, Bedford, Massachusetts 01730 (“PSC>).\nPSC and Company are interested in entering into discussions for the purposes of evaluating a potential business relationship. In order to\nproceed with these discussions, PSC or Company may disclose certain “Confidential Information” of its own (the “Disclosing Party™) to the\nother party (the “Receiving Party”). The Receiving Party agrees to keep such information as “Confidential Information”, subject to the provisions\nof this Agreement. PSC and the Company agree as follows:\n1. “Confidential Information” means certain confidential information or materials relating to the proprietary technical, financial, customer or\nbusiness affairs of the Disclosing Party which is (a) disclosed by the Disclosing Party to the Receiving Party in written or tangible form or (b)\ndisclosed orally by the Disclosing Party to the Receiving Party in connection with the evaluation of a potential business relationship between the\nParties. The Parties acknowledge and agree that any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its\nadvisors or otherwise and irrespective of the form of communication) which is furnished hereunder to the Receiving Party or to its\nrepresentatives now or in the future by or on behalf of the Disclosing Party, including, without limitation, all notes, analyses, compilations,\nstudies, interpretations or other documents prepared by each party or its representatives which contain, reflect or are based upon, in whole or in\npart, the information furnished to such party or its representatives pursuant hereto, shall be considered Confidential Information hereunder. The\nparties expressly agree that the existence of this Agreement is deemed to be Confidential Information of the parties.\n2. Except as required by law, regulation or legal process, the Receiving Party agrees to use the Confidential Information solely for evaluating\na potential business relationship with the Disclosing Party (the “Permitted Use”). The Receiving Party further agrees that it shall keep in\nconfidence and not disclose any part of the Confidential Information to any third party, except to its employees or professional advisors with a\nneed to know and who are made aware of and accept the provisions of this Agreement. PSC and Company agree that neither party shall disclose\nthat any discussions have taken place.\n3. Upon receipt of written notice from the Disclosing Party, the Receiving Party shall return all Confidential Information, in written or\ntangible form, to the Disclosing Party, together with any copies thereof, in the possession of the Receiving Party or that of its professional\nadvisors.\n4. The restrictive obligations set forth herein shall not apply to the disclosure or use of any Confidential Information which (a) is or hereafter\nbecomes public knowledge through no fault of the Receiving Party; (b) is known by the Receiving Party on the date of disclosure and is not\nsubject to any restriction on disclosure provided such knowledge was not obtained from a third party with an obligation of non-disclosure to the\nother party; (c) is disclosed to the Receiving Party by a third party who is not subject to any restriction on disclosure by the Disclosing Party; or\n(d) the Receiving Party can demonstrate was developed by it independently without benefit of, or based on, the disclosures made hereunder.\n5. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive in any geographic area and in any form with the other party’s product(s) or\nservice(s).\n6. The Disclosing Party reserves all rights and benefits afforded under U.S. and international copyright, patent, trade secret and all other\nintellectual property rights in all Confidential Information furnished by the Disclosing Party to the Receiving Party. The Receiving Party does not\nacquire any intellectual property rights under this Agreement or through any disclosure hereunder, except the limited right to use such\nConfidential Information for the Permitted Use in accordance with this Agreement.\n7. This Agreement shall have no force and effect after two (2) years from the date of the last disclosure of Confidential Information hereunder\nor, if a definitive agreement is entered into between the parties relating to a business relationship, upon execution by the parties of said\nagreement.\n8. Each party acknowledges that Confidential Information is owned solely by the Disclosing Party and that the unauthorized disclosure or use\nof such Confidential Information might cause irreparable harm and significant injury, the degree of which may be difficult to ascertain.\nAccordingly, each party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach of this\nAgreement, as well as the right to pursue any and all other rights and remedies available.\n9. Each party (a) acknowledges that it is aware that United States federal and state securities laws and regulations restrict persons with\nmaterial non-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such\ncompany, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell securities of such company, and (b) agrees that it will not use, or cause any third person to use, any\ninformation of the other party or its affiliates in contravention of such laws and regulations.\n-\n10. During the term of this Agreement neither party shall, without the prior written approval of the other party, solicit the services of or make\nan offer of employment to any person who is or was, as the case may be, an employee or consultant of the other party during the term of this\nAgreement, unless such solicitation or offer results from a general electronic or print media advertisements of or website postings of employment\nopportunities to which any such employee or consultant responds without any other inducement by a party. In case of breach of this section 10,\nthe parties agree to liquidated damages of $50,000 per person.\n11. This Agreement represents the entire agreement between the parties with respect to its subject matter. The invalidity or unenforceability of\nany part of this Agreement for any reason whatsoever shall not affect the validity or enforceability of the remainder. This Agreement shall he\nconstrued and enforced pursuant to the laws of The Commonwealth of Massachusetts, exclusive of its rules governing conflict of law and choice\nof laws.\nIN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement as of the date first\nwritten above.\nPROGRESS SOFTWARE NEON SYSTEMS, INC.\nBy: /s/ Evan McDonnell By: /s/ Brian D. Helman\nName: Evan McDonnell Name: Brian D. Helman\nTitle: Vice President Title: Chief Financial Officer\n_3-	EX-99.(D)(3) 3 b58545alexv99wxdyx3y.htm EX-99.(D)(3 MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made as of the 4th day of May 2005 by and between NEON SYSTEMS, INC., a Delaware corporation, with its principal\noffices located at 14100 Southwest Freeway, Suite 500, Sugar Land, Texas 77478 (the "Company") and Progress Software Corporation, a\nMassachusetts corporation, with its principal offices located at 14 Oak Park, Bedford, Massachusetts 01730 ("PSC").\nPSC\nand\nCompany are interested in entering into discussions for the purposes of evaluating a potential business relationship. In order to\nproceed with these discussions, PSC or Company may disclose certain "Confidential Information" of its own (the "Disclosing Party") to the\nother party (the "Receiving Party"). The Receiving Party agrees to keep such information as "Confidential Information", subject to the provisions\nof this Agreement. PSC and the Company agree as follows:\n1. "Confidential Information" means certain confidential information or materials relating to the proprietary technical, financial, customer or\nbusiness affairs of the Disclosing Party which is (a) disclosed by the Disclosing Party to the Receiving Party in written or tangible form or (b)\ndisclosed orally by the Disclosing Party to the Receiving Party in connection with the evaluation of a potential business relationship between the\nParties. The Parties acknowledge and agree that any information concerning the Disclosing Party (whether prepared by the Disclosing Party,\nits\nadvisors or otherwise and irrespective of the form of communication) which is furnished hereunder to the Receiving Party or to its\nrepresentatives now or in the future by or on behalf of the Disclosing Party, including, without limitation, all notes, analyses, compilations,\nstudies, interpretations or other documents prepared by each party or its representatives which contain, reflect or are based upon, in whole or in\npart, the information furnished to such party or its representatives pursuant hereto, shall be considered Confidential Information hereunder. The\nparties expressly agree that the existence of this Agreement is deemed to be Confidential Information of the parties.\n2. Except as required by law, regulation or legal process, the Receiving Party agrees to use the Confidential Information solely for evaluating\na potential business relationship with the Disclosing Party (the "Permitted Use"). The Receiving Party further agrees that it shall keep in\nconfidence and not disclose any part of the Confidential Information to any third party, except to its employees or professional advisors with a\nneed to know and who are made aware of and accept the provisions of this Agreement. PSC and Company agree that neither party shall disclose\nthat any discussions have taken place.\n3. Upon receipt of written notice from the Disclosing Party, the Receiving Party shall return all Confidential Information, in written or\ntangible form, to the Disclosing Party, together with any copies thereof, in the possession of the Receiving Party or that of its professional\nadvisors.\n4. The restrictive obligations set forth herein shall not apply to the disclosure or use of any Confidential Information which (a) is or hereafter\nbecomes public knowledge through no fault of the Receiving Party; (b) is known by the Receiving Party on the date of disclosure and is not\nsubject to any restriction on disclosure provided such knowledge was not obtained from a third party with an obligation of non-disclosure to\nthe\nother party; (c) is disclosed to the Receiving Party by a third party who is not subject to any restriction on disclosure by the Disclosing Party; or\n(d) the Receiving Party can demonstrate was developed by it independently without benefit of, or based on, the disclosures made hereunder.\n5.\nThe parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions.\nFurther,\nnothing\nin\nthis\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive in any geographic area and in any form with the other party's product(s)\nor\nservice(s).\n6. The Disclosing Party reserves all rights and benefits afforded under U.S. and international copyright, patent, trade secret and all other\nintellectual property rights in all Confidential Information furnished by the Disclosing Party to the Receiving Party. The Receiving Party does not\nacquire any intellectual property rights under this Agreement or through any disclosure hereunder, except the limited right to use such\nConfidential Information for the Permitted Use in accordance with this Agreement.\n7. This Agreement shall have no force and effect after two (2) years from the date of the last disclosure of Confidential Information hereunder\nor, if a definitive agreement is entered into between the parties relating to a business relationship, upon execution by the parties of said\nagreement.\n8. Each party acknowledges that Confidential Information is owned solely by the Disclosing Party and that the unauthorized disclosure or use\nof\nsuch Confidential Information might cause irreparable harm and significant injury, the degree of which may be difficult to ascertain.\nAccordingly, each party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach of this\nAgreement, as well as the right to pursue any and all other rights and remedies available.\n9. Each party (a) acknowledges that it is aware that United States federal and state securities laws and regulations restrict persons with\nmaterial non-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such\ncompany, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell securities of such company, and (b) agrees that it will not use, or cause any third person to use, any\ninformation of the other party or its affiliates in contravention of such laws and regulations.\n-2-\n10. During the term of this Agreement neither party shall, without the prior written approval of the other party, solicit the services of or make\nan offer of employment to any person who is or was, as the case may be, an employee or consultant of the other party during the term of this\nAgreement, unless such solicitation or offer results from a general electronic or print media advertisements of or website postings of employment\nopportunities to which any such employee or consultant responds without any other inducement by a party. In case of breach of this section 10,\nthe parties agree to liquidated damages of $50,000 per person.\n11. This Agreement represents the entire agreement between the parties with respect to its subject matter. The invalidity or unenforceability of\nany\npart of this Agreement for any reason whatsoever shall not affect the validity or enforceability of the remainder. This Agreement shall he\nconstrued and enforced pursuant to the laws of The Commonwealth of Massachusetts, exclusive of its rules governing conflict of law and choice\nof laws.\nIN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement as of the date first\nwritten above.\nPROGRESS SOFTWARE\nNEON SYSTEMS, INC.\nBy:\n/s/ Evan McDonnell\nBy:\n/s/ Brian D. Helman\nName: Evan McDonnell\nName: Brian D. Helman\nTitle:\nVice President\nTitle:\nChief Financial Officer\n-3-	EX-99.(D)(3) 3 b58545a1exv99wxdyx3y.htm EX-99.(D)(3) MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made as of the 4th day of May 2005 by and between NEON SYSTEMS, INC., a Delaware corporation, with its principal\noffices located at 14100 Southwest Freeway, Suite 500, Sugar Land, Texas 77478 (the “Company”) and Progress Software Corporation, a\nMassachusetts corporation, with its principal offices located at 14 Oak Park, Bedford, Massachusetts 01730 (“PSC”).\nPSC and Company are interested in entering into discussions for the purposes of evaluating a potential business relationship. In order to\nproceed with these discussions, PSC or Company may disclose certain “Confidential Information” of its own (the “Disclosing Party”) to the\nother party (the “Receiving Party”). The Receiving Party agrees to keep such information as “Confidential Information”, subject to the provisions\nof this Agreement. PSC and the Company agree as follows:\n1. “Confidential Information” means certain confidential information or materials relating to the proprietary technical, financial, customer or\nbusiness affairs of the Disclosing Party which is (a) disclosed by the Disclosing Party to the Receiving Party in written or tangible form or (b)\ndisclosed orally by the Disclosing Party to the Receiving Party in connection with the evaluation of a potential business relationship between the\nParties. The Parties acknowledge and agree that any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its\nadvisors or otherwise and irrespective of the form of communication) which is furnished hereunder to the Receiving Party or to its\nrepresentatives now or in the future by or on behalf of the Disclosing Party, including, without limitation, all notes, analyses, compilations,\nstudies, interpretations or other documents prepared by each party or its representatives which contain, reflect or are based upon, in whole or in\npart, the information furnished to such party or its representatives pursuant hereto, shall be considered Confidential Information hereunder. The\nparties expressly agree that the existence of this Agreement is deemed to be Confidential Information of the parties.\n2. Except as required by law, regulation or legal process, the Receiving Party agrees to use the Confidential Information solely for evaluating\na potential business relationship with the Disclosing Party (the “Permitted Use”). The Receiving Party further agrees that it shall keep in\nconfidence and not disclose any part of the Confidential Information to any third party, except to its employees or professional advisors with a\nneed to know and who are made aware of and accept the provisions of this Agreement. PSC and Company agree that neither party shall disclose\nthat any discussions have taken place.\n3. Upon receipt of written notice from the Disclosing Party, the Receiving Party shall return all Confidential Information, in written or\ntangible form, to the Disclosing Party, together with any copies thereof, in the possession of the Receiving Party or that of its professional\nadvisors.\n4. The restrictive obligations set forth herein shall not apply to the disclosure or use of any Confidential Information which (a) is or hereafter\nbecomes public knowledge through no fault of the Receiving Party; (b) is known by the Receiving Party on the date of disclosure and is not\nsubject to any restriction on disclosure provided such knowledge was not obtained from a third party with an obligation of non-disclosure to the\nother party; (c) is disclosed to the Receiving Party by a third party who is not subject to any restriction on disclosure by the Disclosing Party; or\n(d) the Receiving Party can demonstrate was developed by it independently without benefit of, or based on, the disclosures made hereunder.\n5. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive in any geographic area and in any form with the other party’s product(s) or\nservice(s).\n6. The Disclosing Party reserves all rights and benefits afforded under U.S. and international copyright, patent, trade secret and all other\nintellectual property rights in all Confidential Information furnished by the Disclosing Party to the Receiving Party. The Receiving Party does not\nacquire any intellectual property rights under this Agreement or through any disclosure hereunder, except the limited right to use such\nConfidential Information for the Permitted Use in accordance with this Agreement.\n7. This Agreement shall have no force and effect after two (2) years from the date of the last disclosure of Confidential Information hereunder\nor, if a definitive agreement is entered into between the parties relating to a business relationship, upon execution by the parties of said\nagreement.\n8. Each party acknowledges that Confidential Information is owned solely by the Disclosing Party and that the unauthorized disclosure or use\nof such Confidential Information might cause irreparable harm and significant injury, the degree of which may be difficult to ascertain.\nAccordingly, each party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach of this\nAgreement, as well as the right to pursue any and all other rights and remedies available.\n9. Each party (a) acknowledges that it is aware that United States federal and state securities laws and regulations restrict persons with\nmaterial non-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such\ncompany, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell securities of such company, and (b) agrees that it will not use, or cause any third person to use, any\ninformation of the other party or its affiliates in contravention of such laws and regulations.\n-2-\n10. During the term of this Agreement neither party shall, without the prior written approval of the other party, solicit the services of or make\nan offer of employment to any person who is or was, as the case may be, an employee or consultant of the other party during the term of this\nAgreement, unless such solicitation or offer results from a general electronic or print media advertisements of or website postings of employment\nopportunities to which any such employee or consultant responds without any other inducement by a party. In case of breach of this section 10,\nthe parties agree to liquidated damages of $50,000 per person.\n11. This Agreement represents the entire agreement between the parties with respect to its subject matter. The invalidity or unenforceability of\nany part of this Agreement for any reason whatsoever shall not affect the validity or enforceability of the remainder. This Agreement shall he\nconstrued and enforced pursuant to the laws of The Commonwealth of Massachusetts, exclusive of its rules governing conflict of law and choice\nof laws.\nIN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement as of the date first\nwritten above.\nPROGRESS SOFTWARE\nNEON SYSTEMS, INC.\nBy:\n/s/ Evan McDonnell\nBy:\n/s/ Brian D. Helman\nName: Evan McDonnell\nName: Brian D. Helman\nTitle:\nVice President\nTitle:\nChief Financial Officer\n-3-
0a68451dc19053b04342ce829bcd1321.pdf	effective_date jurisdiction party term	EX-10.2 3 dex102.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON -COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your becoming employed and the payments described in\nParagraph 2 below, and in recognition of the highly competitive nature of the Company’s business, you agree as follows:\n1. Protection of Confidential Information.\n(a) You acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c) For purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Competition Period”), you shall not, directly or\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the\nmanufacture, design and/or sale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shall have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\n(c) If you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay”),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. Subject\nto the provisions of the Offer Letter Agreement dated August 6, 2008, if you resign from your employment, the Company may waive the\nprovisions of Paragraph 2(b) or shorten the Non-Competition Period by providing you written notice of the waiver or the shortened Non-\nCompetition Period within 10 business days of your resignation, in which case (i) you will only be bound by the restrictions in Paragraph 2(b)\nabove during the shortened Non-Competition Period (but will continue to remain bound by the restrictions in Paragraphs 1 and 2(a) above),\nand (ii) the Company will have no obligation to pay you Separation Pay or continue your benefits if it waives the provisions of Paragraph 2(b)\nabove or if the Company shortens the Non-Competition Period pursuant to this Paragraph 2(c), the Company will only pay you a pro rata\nportion of the Separation Pay as prorated in proportion to the shortened Non-Competition Period and continue your benefits only during the\nshortened Non-Competition Period.\n(d) If you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e) If you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f) For purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g) In order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is\nsatisfactory to the Company and includes, but is not limited to, a general waiver and release of all claims and potential claims against the\nCompany and a non-disparagement provision. The separation agreement must be signed within 22 days of your receipt of the agreement.\n(h) To the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\n3. If you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5. Severability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6. Waiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7. Entire Agreement. Except as set forth in the next sentence, this Agreement, together with the Offer Letter Agreement dated August 6, 2008, is\na complete statement of all the terms and arrangements between us with respect to their subject matter and cannot be changed or terminated\norally. In the event a Change in Control (as defined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the\ntermination of your employment, you will be eligible for benefits pursuant to the terms of such Special Severance Plan (as then in effect) and\nthis Agreement shall become null and void, other than the provisions set forth in Paragraph 1.\n8. At-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9. Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Christine Beauchamp\nMark G. Morrison\nChristine Beauchamp\nExecutive Vice President, Human Resources\nPresident, Ann Taylor Stores\nDate: 8/11/08\nDate: 8/7/08	EX-10.2 3 dex102.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT Exhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your becoming employed and the payments described in Paragraph 2 below, and in recognition of the highly competitive nature of the Company’s business, you agree as follows: 1.\n@)\n(b)\n©\n(a)\n(b)\nProtection of Confidential Information.\nYou acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\nAccordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(i) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\nFor purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\nNon-solicitation of Associates; Non-competition.\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Competition Period”), you shall not, directly or\n©\n(d)\n(®)\n®\n(8)\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the\nmanufacture, design and/or sale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shall have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\nIf you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay™),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. Subject\nto the provisions of the Offer Letter Agreement dated August 6, 2008, if you resign from your employment, the Company may waive the\nprovisions of Paragraph 2(b) or shorten the Non-Competition Period by providing you written notice of the waiver or the shortened Non-\nCompetition Period within 10 business days of your resignation, in which case (i) you will only be bound by the restrictions in Paragraph 2(b)\nabove during the shortened Non-Competition Period (but will continue to remain bound by the restrictions in Paragraphs 1 and 2(a) above),\nand (ii) the Company will have no obligation to pay you Separation Pay or continue your benefits if it waives the provisions of Paragraph 2(b)\nabove or if the Company shortens the Non-Competition Period pursuant to this Paragraph 2(c), the Company will only pay you a pro rata\nportion of the Separation Pay as prorated in proportion to the shortened Non-Competition Period and continue your benefits only during the\nshortened Non-Competition Period.\nIf you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\nIf you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\nFor purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\nIn order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is\n(h)\n()\nsatisfactory to the Company and includes, but is not limited to, a general waiver and release of all claims and potential claims against the\nCompany and a non-disparagement provision. The separation agreement must be signed within 22 days of your receipt of the agreement.\nTo the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\nNotwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\nIf you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\nIntellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\nSeverability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\nWaiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\nEntire Agreement. Except as set forth in the next sentence, this Agreement, together with the Offer Letter Agreement dated August 6, 2008, is\na complete statement of all the terms and arrangements between us with respect to their subject matter and cannot be changed or terminated\norally. In the event a Change in Control (as defined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the\ntermination of your employment, you will be eligible for benefits pursuant to the terms of such Special Severance Plan (as then in effect) and\nthis Agreement shall become null and void, other than the provisions set forth in Paragraph 1.\n \nAt-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9.  Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nANN TAYLOR: ASSOCIATE:\nBY: /s/Mark G. Morrison /s/ Christine Beauchamp\nMark G. Morrison Christine Beauchamp\nExecutive Vice President, Human Resources President, Ann Taylor Stores\nDate: 8/11/08 Date: 8/7/08	EX-10.2 3 dex102.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the "Company"), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your becoming employed and the payments described in\nParagraph 2 below, and in recognition of the highly competitive nature of the Company's business, you agree as follows:\n1.\nProtection of Confidential Information.\n(a)\nYou acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i)\nexcept in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany's standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii)\nyou will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c)\nFor purposes of this Agreement, "Confidentia Information" refers to information of the Company (including its affiliated companies) or\nits\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2.\nNon-solicitation of Associates; Non-competition.\n(a)\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the "Non-Solicitation Period"), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b)\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the "Non-Competition Period"), you shall not, directly or\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, "Competitor" means a business or other entity engaged in the\nmanufacture, design and/or sale of women's apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe\nCompany may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shal have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\n(c)\nIf you are terminated by the Company without cause (as defined Paragraph 2(f) below, "Cause") or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 ("Separation Pay"),\npayable in substantially equal installments in accordance with the Company's regular payroll cycle, and you will continue to receive all\nbenefits under the Company's medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. Subject\nto the provisions of the Offer Letter Agreement dated August 6, 2008, if you resign from your employment, the Company may waive the\nprovisions of Paragraph 2(b) or shorten the Non-Competition Period by providing you written notice of the waiver or the shortened Non-\nCompetition Period within 10 business days of your resignation, in which case (i) you will only be bound by the restrictions in Paragraph 2(b)\nabove during the shortened Non-Competition Period (but will continue to remain bound by the restrictions in Paragraphs 1 and 2(a) above),\nand (ii) the Company will have no obligation to pay you Separation Pay or continue your benefits if it waives the provisions of Paragraph 2(b)\nabove\nor\nif\nthe\nCompany\nshortens\nthe\nNon-Competition\nPeriod\npursuant\nto\nthis\nParagraph\n2(c),\nthe\nCompany\nwill\nonly\npay\nyou\na\npro\nrata\nportion of the Separation Pay as prorated in proportion to the shortened Non-Competition Period and continue your benefits only during the\nshortened Non-Competition Period.\n(d)\nIf you are terminated by the Company without Cause and have never been a "Section 162(m) Employee" (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n("AMIP") (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become "covered employees" within the meaning of Section 162(m) ("Section\n162(m) Employee") of the Internal Revenue Code of 1986, as amended (the "Code"), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e)\nIf you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f)\nFor purposes of this Agreement, "Cause" shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable\nwritten\ndirections\nof\nthe\nCEO,\nwhich\ndoes\nnot\ncease\nwithin\nten\nbusiness\ndays\nafter\nsuch\nwritten\nnotice\nregarding\nsuch\nrefusal\nhas\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g)\nIn order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is\nsatisfactory to the Company and includes, but is not limited to, a general waiver and release of all claims and potential claims against the\nCompany and a non-disparagement provision. The separation agreement must be signed within 22 days of your receipt of the agreement.\n(h)\nTo the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i)\nNotwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company's 2003 Equity Incentive Plan).\n3.\nIf you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4.\nIntellectual Property.. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company's business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5.\nSeverability. & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6.\nWaiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7.\nEntire Agreement. Except as set forth in the next sentence, this Agreement, together with the Offer Letter Agreement dated August 6, 2008, is\na complete statement of all the terms and arrangements between us with respect to their subject matter and cannot be changed or terminated\norally. In the event a Change in Control (as defined in the AnnTaylor Stores Corporation Specia Severance Plan) occurs prior to the\ntermination of your employment, you will be eligible for benefits pursuant to the terms of such Special Severance Plan (as then in effect) and\nthis Agreement shall become null and void, other than the provisions set forth in Paragraph 1.\n8.\nAt-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n"at-will" which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9.\nNothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys' fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Christine Beauchamp\nMark G. Morrison\nChristine Beauchamp\nExecutive Vice President, Human Resources\nPresident, Ann Taylor Stores\nDate: 8/11/08\nDate: 8/7/08	EX-10.2 3 dex102.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON -COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your becoming employed and the payments described in\nParagraph 2 below, and in recognition of the highly competitive nature of the Company’s business, you agree as follows:\n1. Protection of Confidential Information.\n(a) You acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c) For purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Competition Period”), you shall not, directly or\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the\nmanufacture, design and/or sale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shall have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\n(c) If you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay”),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. Subject\nto the provisions of the Offer Letter Agreement dated August 6, 2008, if you resign from your employment, the Company may waive the\nprovisions of Paragraph 2(b) or shorten the Non-Competition Period by providing you written notice of the waiver or the shortened Non-\nCompetition Period within 10 business days of your resignation, in which case (i) you will only be bound by the restrictions in Paragraph 2(b)\nabove during the shortened Non-Competition Period (but will continue to remain bound by the restrictions in Paragraphs 1 and 2(a) above),\nand (ii) the Company will have no obligation to pay you Separation Pay or continue your benefits if it waives the provisions of Paragraph 2(b)\nabove or if the Company shortens the Non-Competition Period pursuant to this Paragraph 2(c), the Company will only pay you a pro rata\nportion of the Separation Pay as prorated in proportion to the shortened Non-Competition Period and continue your benefits only during the\nshortened Non-Competition Period.\n(d) If you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e) If you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f) For purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g) In order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is\nsatisfactory to the Company and includes, but is not limited to, a general waiver and release of all claims and potential claims against the\nCompany and a non-disparagement provision. The separation agreement must be signed within 22 days of your receipt of the agreement.\n(h) To the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\n3. If you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5. Severability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6. Waiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7. Entire Agreement. Except as set forth in the next sentence, this Agreement, together with the Offer Letter Agreement dated August 6, 2008, is\na complete statement of all the terms and arrangements between us with respect to their subject matter and cannot be changed or terminated\norally. In the event a Change in Control (as defined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the\ntermination of your employment, you will be eligible for benefits pursuant to the terms of such Special Severance Plan (as then in effect) and\nthis Agreement shall become null and void, other than the provisions set forth in Paragraph 1.\n8. At-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9. Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Christine Beauchamp\nMark G. Morrison\nChristine Beauchamp\nExecutive Vice President, Human Resources\nPresident, Ann Taylor Stores\nDate: 8/11/08\nDate: 8/7/08
0c3ab1d0c8bb3b1c2f7a64f3ab584368.pdf	effective_date jurisdiction party	Exhibit A\nNON-INTERFERENCE, NON -DISCLOSURE AND\nNON-COMPETITION AGREEMENT\nTHIS NON-INTERFERENCE, NON-DISCLOSURE AND NON -COMPETITION AGREEMENT is made and entered as of January 30, 2006, between ASSET ACCEPTANCE CAPITAL CORP. a Delaware corporation (the\n“Company”), and James C. Lee (“Employee”).\nThe Company and its affiliated entities (“Affiliates”) are engaged in the business of purchasing and collecting defaulted and charged off consumer debt (“Charged Off Accounts”). The Company desires to continue the employment of\nEmployee, on an at-will basis, in the capacity set forth in the Schedule attached hereto and in such capacity makes available to Employee certain proprietary information.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, employment of Employee by the Company on an at-will basis, the eligibility of Employee to participate in the bonus plans offered from\ntime to time by the Company or its Affiliates, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Confidentiality and Non-Competition. Employee acknowledges that (i) the agreements and covenants contained herein are essential to protect the Company’s business and assets and (ii) by virtue of his past and continued association\nwith the Company, Employee had access to and has obtained and will continue to have access to and obtain such knowledge, know-how, proprietary information, training and experience, which is known only to the members, officers or\nmanagers of the Company, or other employees, former employees, consultants, or others in a confidential relationship with the Company and its Affiliates, and there is a substantial probability that such knowledge, know-how, proprietary\ninformation, training and experience could be used to the substantial advantage of a competitor of the Company and to the Company’s substantial detriment.\n2. Covenant Not to Compete. Employee agrees that, for the period commencing on the date hereof and ending on (i) the date of termination of employment by the Company without Cause or (ii) one year after termination of employment\nby Employee or termination of employment by the Company for Cause (as defined in the Schedule attached hereto) (as applicable, the “Restricted Period”), Employee shall not, in the Territory (as defined in the Schedule attached hereto),\ndirectly or indirectly, either for himself or for, with or through any other Person, own, manage, operate, control, be employed by, participate in, loan money to or be connected in any manner with, or permit his name to be used by, any\nbusiness which is engaged principally in the business of purchasing Charged Off Accounts (a “Competitive Activity”). Company shall continue to pay the Employee during the Restricted Period and may, at its option, extend the Restricted\nPeriod by continuing to pay Employee his or her regular base salary on the regular periodic payment dates for such additional period not to exceed one year as the Board shall determine, in which event the Restricted Period shall end on\nthe date the last such periodic payment is made to Employee. For purposes of this Agreement, the term “participate” includes any direct or indirect interest, whether as an officer, director, employee, partner, sole proprietor, trustee,\nbeneficiary, agent, representative, independent contractor, consultant, advisor, provider of personal services, creditor, owner (other than by ownership of less than one (1) percent of the stock of a corporation that has a class of securities\nunder the Securities Exchange Act of 1934 (a “Public Company”). Company may, in the exercise of its sole discretion, elect to waive the application of this Section 2 in which case the Restricted Period shall immediately cease and\nCompany’s obligation to pay salary shall terminate. If Company elects to waive application of this Section 2, this election shall not release the Employee from any other obligation contained in this Agreement.\n3. Nondisclosure of Confidential Information. Employee shall not, whether during or after employment, disclose to any person or entity or use any information not in the public domain, in any form, acquired by Employee while he was\nemployed or associated with the Company or, if acquired following the termination of such association, such information which, to Employee’s knowledge, has been acquired, directly or indirectly, from any person or entity owing a duty\nof confidentiality to the Company or its business. By way of illustration but not limitation, Confidential Information may include trade secrets, Charged Off Accounts supplier lists, collection methods, information regarding bulk purchases\nof Charged Off Accounts, employee compensation arrangements, business practices, plans, policies, secret inventions, processes and compilations of information, records and specifications, as well as information related to the\nmanagement policies and plans for the Company. Employee agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain the sole and exclusive property of the Company, and\nEmployee shall on request return to the Company the originals and all copies of any such information provided to or acquired by Employee in connection with his association with the Company, and shall return to the Company all files,\ncorrespondence and/or other communications received, maintained and/or originated by Employee during the course of such association. All written or other tangible material containing Confidential Information shall not be removed from\nthe premises of the Company, either in original or reproduced form, under any circumstances whatsoever, without the prior written consent of an authorized officer of the Company, except in the ordinary course of business, and shall be\ndelivered to the Company upon the earlier of a request by the Company or the termination of Employee’s employment with the Company. Employee further agrees to treat all confidential information and know-how of any affiliate, client,\nemployee, customer, contractor, vendor or supplier of the Company in the same manner as the Confidential Information.\n4. No Interference. For the period commencing on the date hereof and ending two years after the date of termination of employment, Employee shall not, without the prior written approval of an authorized officer of the Company,\ndirectly or indirectly through any other Person (i) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and its Affiliates and\nany employee thereof, (ii) hire any Person who was an employee of the Company or any of its Affiliates within twelve months after such Person’s employment with the Company and its Affiliates was terminated for any reason,\n(iii) induce or attempt to induce any supplier of Charged Off Accounts or other business relation of the Company or any of its Affiliates to cease doing business with the Company or its Affiliates, or in any way interfere with the\nrelationship between any such supplier or business relation and the Company and its Affiliates or (iv) acquire Charged Off Accounts from any Person that was a seller of Charged Off Accounts to the Company or its Affiliates during the\ntwelve (12) month period immediately preceding the date of termination of Employee’s employment; provided, however that this clause (iv) shall not apply to any competitive bidding situation for Charged Off Accounts which is publicly\nannounced in an industry publication.\n5. Reasonableness of Restrictions. Employee agrees that the covenants set forth in Sections 2, 3 and 4 are reasonable with respect to their duration, geographical area and scope. In the event that any of the provisions of Sections 2, 3 or 4\nrelating to the geographic or temporal scope of the covenants contained therein or the nature of the business or activities restricted thereby shall be declared by a court of competent jurisdiction or arbitral panel to exceed the maximum\nrestrictiveness as to duration, geographical area and/or scope such court or arbitral panel deems enforceable, such provision shall be deemed to be replaced herein by the maximum restriction as to duration, geographical area and/or scope\ndeemed enforceable by such court or arbitral panel in light of all the facts and circumstances applicable thereto.\n2\n6. Remedies. Employee hereby acknowledges that Employee’s covenants and obligations hereunder, are of special, unique, unusual, extraordinary and intellectual character, which gives them a peculiar value, the actual or threatened\nbreach of which shall result in substantial injuries and damages, for which monetary relief may fail to provide an adequate remedy at law. Accordingly, Employee agrees that the Company shall be entitled, in the event of an actual or\nthreatened breach of this Agreement, to seek remedies including but not necessarily limited to (i) temporary or permanent injunctive relief; (ii) specific performance; and (iii) monetary relief, to the extent that monetary relief may\nconstitute an adequate remedy in whole or in part; provided that Employee does not waive the right to oppose relief on the grounds that no breach or threatened breach has occurred. If any proceeding for injunctive relief and/or specific\nperformance is brought by the Company to enforce the terms of this Agreement, Employee shall be deemed to have waived, and shall not assert, any claim or defense that the Company has an adequate remedy at law or that such a remedy\nat law exists. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the Company, if it prevails in such action, shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in\naddition to any other relief which a court of competent jurisdiction may order.\n7. Property of the Company. On the termination of employment or whenever requested by the Company, Employee shall immediately deliver to the Company all property in Employee’s possession or under Employee’s control\nbelonging to the Company including (but not limited to) all books, records, files, customer lists, materials or correspondence, in good condition, except for ordinary wear and tear and damage by any cause beyond the reasonable control of\nEmployee.\n8. Successors; Binding Agreement. This Agreement shall inure to the benefit of the Company and its Affiliates, successors and assigns, and shall be binding upon Employee and his legal representatives and successors. Employee may\nnot assign this Agreement or any of Employee’s interests hereunder or delegate any duty or responsibility incurred by Employee hereunder to another. The Company, at any time and without the consent of Employee, may assign or\ntransfer, for such consideration and on such terms and conditions as it may deem appropriate, this Agreement and all of its interests hereunder and no such assignment or transfer by the Company shall in any manner restrict, limit or\nmodify the interests, duties and responsibilities of Employee under this Agreement.\n9. Waiver and Modification. Any waiver, alteration or modification of any of the terms of this Agreement shall be valid only if made in writing and signed by the parties hereto; provided, that any such waiver, alteration or modification\nis consented to on the Company’s behalf by an authorized officer of the Company. No waiver by any of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or\ntransactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.\n10. Severability. Whenever possible each provision and term of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or term of this Agreement shall be held to be\nprohibited by or wholly invalid under such applicable law, then (i) such provision or term shall be ineffective only to the extent of such provision or invalidity, without invalidating or affecting in any manner whatsoever the remainder of\nsuch provision or term or the remaining provisions or terms of this Agreement and (ii) the invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to\nexpressing the intention of the invalid or unenforceable term or provision.\n11. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed effective and given upon actual delivery if presented personally, one business day after the date sent if sent by prepaid\ntelegram, overnight courier service, telex, or by facsimile\n3\ntransmission or five business days after the date sent if sent by certified or registered mail, postage prepaid, return receipt requested, which shall be addressed:\nIn the case of the Company, to:\nAsset Acceptance Capital Corp.\n28405 Van Dyke Avenue\nWarren, Michigan 48093\nAttention: Nathaniel F. Bradley IV\nFacsimile No.: 586-446-7832\nIn the case of Employee, to such Employee’s address as shown in the records of the Company, or, in each case, to such other address as may be designated in writing by any such party.\n12. Captions and Section Headings. Captions and section headings herein are for convenience only, are not a part hereof and shall not be used in construing this Agreement.\n13. Entire Agreement. This Agreement, constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof.\n14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.\n15. Survival. The agreements and covenants made by Employee in and the obligations of Employee in this Agreement shall survive the termination of this Agreement and the employment of Employee. Each such agreement and covenant\nby Employee shall be construed as a covenant and agreement independent of any other provision herein, and the existence of any claim or cause of action by Employee against the Company shall not constitute a defense to the enforcement\nof the provisions of any such covenant or agreement.\n16. Employee Acknowledgement. Employee hereby represents to the Company that:\n(a) Employee has had the opportunity to read, and in fact has read, this Agreement in its entirety and understands each provision of this Agreement;\n(b) Employee’s education, training and experience are such that following the termination of Employee’s employment with the Company, Employee will have the ability to secure other gainful employment by engaging in activities that\nwill not violate any provision of this Agreement;\n(c) Employee understands and agrees that Employee has not been promised any fixed duration of employment; and\n(d) notwithstanding anything herein to the contrary, no provision hereof nor any actions taken or practices, policies or procedures followed by the Company shall be construed to give Employee any vested property right or any expectation\nor guarantee of continued employment.\n17. Governing Law. This Agreement shall be governed in all respects by the laws of the State of Michigan without regard to any laws or regulations relating to choice of laws (whether of the State of Michigan or any other jurisdiction)\nthat would cause the application of the laws of any jurisdiction other than the State of Michigan.\n4\n18. SUBMISSION TO JURISDICTION; VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN\nTHE COURTS OF THE STATE OF MICHIGAN OR IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SITTING IN DETROIT, MICHIGAN , AND , BY EXECUTION AND\nDELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HEREBY ACCEPTS FOR HIMSELF, HERSELF OR ITSELF AND IN RESPECT OF HIS, HER OR ITS PROPERTY GENERALLY AND UNCONDITIONALLY ,\nTHE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN\nANY SUCH ACTION OR PROCEEDING BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID , TO SUCH PARTY AT HIS, HER OR ITS ADDRESS AS PROVIDED IN SECTION\n14 HEREOF. NOTHING IN THIS SECTION 18 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS IN ANY\nOTHER JURISDICTION.\n19. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND\nDIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY\nLITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nASSET ACCEPTANCE CAPITAL CORP.\nBy:\n/s/ Nathaniel F. Bradley IV\nName:\nNathaniel F. Bradley IV\nTitle:\nPresident & CEO\n/s/ James C. Lee\nName:\nJames C. Lee\n5	Exhibit A\nNON-INTERFERENCE, NON-DISCLOSURE AND\nNON-COMPETITION AGREEMENT\nTHIS NON-INTERFER ENCE, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT is made and entered as ofJanuaIy 30, 2006, between ASSET ACCEPTANCE CAPITAL CORP. a DelawaIe corporation (the\n"Company"), andJames C. Lee ("Employee").\nThe Company and its af iliated entities ("Affiliates”) are engaged in the business of purchasing and collecting defaulted and charged off consumer debt ("Charged Off Accounts”). The Company desires to continue the employment of\nEmployee, on an at-will asis, in the capacity set forth in the Schedule attached hereto and in such capacity makes available to Employee certain proprietary information\nNOW, THERE F0 RE, in consideration of the mutual covenants and agreements contained herein, employment of Employee by the Company on an at-will basis, the eligibility of Employee to participate in the bonus plans offered from\ntime to time by the Com any or its Affiliates, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Confidentiality and Non-C ompetition. Employee acknowledges that (i) the agreements and covenants conmined herein are essential to protect the Company's business and assets and (ii) by virtue of his past and continued association\nwith the Company, Emp oyee had access to and has obtained and will continue to have access to and obtain such knowledge, know-how, proprietary information, training and experience, which is known only to the members, officers or\nmanagers of the Compan , or other employees, former employees, consultants, or others in a confidential relationship with the Company and its A filiates, and there is a substantial probability that such knowledge, know-how, proprietary\ninformation, training an experience could be used to the substantial advantage of a competitor of the Company and to the Company’s substantial etriment.\n \n2. Covenant Not to Compete. Employee agrees that, for the period commencing on the date hereof and ending on (i) the date of termination of employment by the Company without Cause or (ii) one year after termination of employment\nby Employee or termination of employment by the Company for Cause (as defined in the Schedule attached hereto) (as applicable, the "Restricted ’eriod”), Employee shall not, in the Territory (as defined in the Schedule attached hereto),\ndirectly or indirectly, either for himself or for, with or through any other Person, own, manage, operate, control, be employed by, participate in, loan money to or be connected in any manner with, or permit his name to be used by, any\nbusiness which is engaged principally in the business of purchasing Charged Off Accounts (a ”Competitive Activity"). Company shall continue to ay the Employee during the Restricted Period and may, at its option, extend the Restricted\nPeriod by continuing to pay Employee his or her regular base salary on the regular periodic payment dates for such additional period not to exceed one year as the Board shall determine, in which event the Restricted Period shall end on\nthe date the last such periodic payment is made to Employee. For purposes of this Agreement, the term ”participate" includes any direct or indirect interest, whether as an officer, director, employee, partner, sole proprietor, trustee,\nbeneficiary, agent, represenmtive, independent contractor, consulmnt, advisor, provider of personal services, creditor, owner (other than by owners tip of less than one (1) percent of the stock of a corporation that has a class of securities\nunder the Securities Exchange Act of 1934 (a "Public Company"). Company may, in the exercise of its sole discretion, elect to waive the application of this Section 2 in which case the Restricted Period shall immediately cease and\nCompany’s obligation to pay salary shall terminate If Company elects to waive application of this Section 2, this election shall not release the Em\n \nloyee from any other obligation conmined in this Agreement\n—\n3. Nondisclosure of Confidential Information. Employee shall not, whether during or after employment, disclose to any person or entity or use any information not in the public domain, in any form, acquired by Employee while he was\nemployed or associated with the Company or, if acquired following the termination of such association, such information which, to Employee’s knowledge, has been acquired, directly orindirectiy, from any person or entity owing a duty\nof confidentiality to the Company or its business By way of illustration but not limitation, Confidential Information may include trade secrets, Charged Off Accounts supplier lists, collection methods, information regarding bulk purchases\nof Charged Off Accounts, employee compensation arrangements, business practices, plans, policies, secret inventions, processes and compilations of information, records and specifications, as well as information related to the\nmanagement policies and plans for the Company. Employee agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain the sole and exclusive property of the Company, and\nEmployee shall on request return to the Company the originals and all copies of any such information provided to or acquired by Employee in connection with his association with the Company, and shall return to the Company all files,\ncorrespondence and/or other communications received, maintained and/or originated by Employee during the course of such association All written or other tangible material containing Confidential Information shall not be removed from\nthe premises of the Company, either in original or reproduced form, under any circumstances whatsoever, without the prior written consent of an authorized officer of the Company, except in the ordinary course of business, and shall be\ndelivered to the Company upon the earlier of a request by the Company or the termination of Employee’s employment with the Company. Employee further agrees to tieat all confidential information and know-how of any affiliate, client,\nemployee, customer, contractor, vendor or supplier of the Company in the same manner as the Confidential Information\n4. No Interference. For the period commencing on the date hereof and ending two years after the date of termination of employment, Employee shall not, without the prior written approval of an authorized officer of the Company,\ndirectly or indirectly through any other Person (1) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and its Affiliates and\nany employee thereof, (ii) hire any Person who was an employee of the Company or any of its Affiliates within twelve months after such Person's employment with the Company and its Affiliates was terminated for any reason,\n(iii) induce or attempt to induce any supplier of Charged Off Accounts or other business relation of the Company or any of its Affiliates to cease doing business with the Company or its Affiliates, or in any way interfere with the\nrelationship between any such supplier or business relation and the Company and its Affiliates or (iv) acquire Charged Off Accounts from any Person that was a seller of Charged Off Accounts to the Company or its Affiliates during the\ntwelve (12) month period immediately preceding the date of termination of Employee’s employment,- provided, however that this clause (iv) shall not apply to any competitive bidding situation for Charged Off Accounts which is publicly\nannounced in an industry publication.\n5. Reasonableness of Restrictions Employee agrees that the covenants set forth in Sections 2, 3 and 4 are reasonable with respect to their duration, geographical area and scope. In the event that any of the provisions of Sections 2, 3 or4\nrelating to the geographic or temporal scope of the covenants conmined therein or the nature of the business or activities restricted thereby shall be declared by a court of competent jurisdiction or arbitral panel to exceed the maximum\nrestrictiveness as to duration, geographical area and/or scope such court or arbitral panel deems enforceable, such provision shall be deemed to be replaced herein by the maximum restriction as to duration, geographical area andjor scope\ndeemed enforceable by such court or arbitral panel in light of all the facts and circumstances applicable thereto.\n—\n6. Remedies. Employee hereby acknowledges that Employee’s covenants and obligations hereunder, are of special, unique, unusual, extraordinary and intellectual character, which gives them a peculiar value, the actual or threatened\nbreach of which shall result in substantial injuries and damages, for which monemry relief may fail to provide an adequate remedy at law. Accordingly, Employee agrees that the Company shall be entitled, in the event of an actual or\nthreatened breach of this Agreement, to seek remedies including but not necessarily limited to (i) temporary or permanent injunctive relief; (ii) specific performance; and (iii) monetary relief, to the extent that monemry relief may\nconstitute an adequate remedy in whole or in part; provided that Employee does not waive the right to oppose relief on the grounds that no breach or threatened breach has occurred. If any proceeding for injunctive relief andjor specific\nperformance is brought by the Company to enforce the terms of this Agreement, Employee shall be deemed to have waived, and shall not assert, any claim or defense that the Company has an adequate remedy at law or that such a remedy\nat law exists. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the Company, if it prevails in such action, shall be entitled to reasonable attomeys' fees, costs and necessary disbursements in\naddition to any other relief which a court of competent jurisdiction may order.\n7. Property of the Company. On the termination of employment or whenever requested by the Company, Employee shall immediately deliver to the Company all property in Employee's possession or under Employee’s control\nbelonging to the Company including (but not limited to) all books, records, files, customer lists, materials or correspondence, in good condition, except for ordinary wear and tear and damage by any cause beyond the reasonable control of\nEmployee.\n8. Successors; BindingAgreement. This Agreement shall inure to the benefit of the Company and its Affiliates, successors and assigns, and shall be binding upon Employee and his legal representatives and successors. Employee may\nnot assign this Agreement or any of Employee's interests hereunder or delegate any duty or responsibility incurred by Employee hereunderto another. The Company, at any time and without the consent of Employee, may assign or\ntransfer, for such consideration and on such terms and conditions as it may deem appropriate, this Agreement and all of its interests hereunder and no such assignment or transfer by the Company shall in any manner restrict, limit or\nmodify the interests, duties and responsibilities of Employee under this Agreement.\n9. Waiver and Modification. Any waiver, alteration or modification of any of the terms of this Agreement shall be valid only if made in writing and signed by the parties hereto; provided, that any such waiver, alteration or modification\nis cemented to on the Company’s behalf by an authorized officer of the Company. No waiver by any of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or\ntransactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.\n10. Severability. Whenever possible each provision and term of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or term of this Agreement shall be held to be\nprohibited by or wholly invalid under such applicable law, then (i) such provision or term shall be ineffective only to the extent of such provision orinvalidity, without invalidating or affecting in any manner whatsoever the remainder of\nsuch provision or term or the remaining provisions or terms of this Agreement and (ii) the invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to\nexpressing the intention of the invalid or unenforceable term or provision.\n11. Notices All notices and other communications under this Agreement shall be in writing and shall be deemed effective and given upon actual delivery if presented personally, one business day after the date sent if sent by prepaid\ntelegram, overnight courier service, telex, or by facsimile\ntransmission or five business days after the date sent if sent by certified or registered mail, postage prepaid, retum receipt requested, which shall be addressed:\nIn the case of the Company, to:\nA sset Acceptance Capital Corp,\n28405 Van Dyke Avenue\nWarren, Michigan 48093\nAttention: Nathaniel Fr Bradley IV\nFacsimile Nor: 586-446-7832\nIn the case of Employee, to such Employee’s address as shown in the records of the Company, or, in each case, to such other address as may be designated in writing by any such party,\n12‘ Captions and Section Headings. Captions and section headings herein are for convenience only, are not a part hereof and shall not be used in construing this Agreement\n13‘ Entire Agreement. This A greement, constitutes the entire undersmnding and agreement of the parties hereto regarding the subject matter hereof r\n14‘ Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument\n15‘ Survival. The agreements and covenants made by Employee in and the obligations of Employee in this Agreement shall survive the termination of this Agreement and the employment of Employee, Each such agreement and covenant\nby Employee shall be construed as a covenant and agreement independent of any other provision herein, and the existence of any claim or cause of action by Employee against the Company shall not constitute a defense to the enforcement\nof the provisions of any such covenant or agreement.\n16‘ Employee Acknowledgement. Employee hereby represents to the Company that:\n(a) Employee has had the opportunity to read, and in fact has read, this Agreement in its entirety and understands each provision of this Agreement;\n(b) Employee’s education, training and experience are such that following the termination of Employee’s employment with the Company, Employee will have the ability to secure other gainful employment by engaging in activities that\nwill not violate any provision of this Agreement;\n(c) Employee understands and agrees that Employee has not been promised any fixed duration of employment; and\n(d) notwithstanding anything herein to the contrary, no provision hereof nor any actions taken or practices, policies or procedures followed by the Company shall be construed to give Employee any vested property right or any expectation\nor guarantee of continued employment\n17‘ Governing Law. This Agreement shall be governed in all respects by the laws of the Smte of Michigan without regard to any laws or regulations relating to choice of laws (whether of the State of Michigan or any other jurisdiction)\nthat would cause the application of the laws of any jurisdiction other than the Smte of Michigan,\n—\n18. SUBMISSION T0 JURISDICTION; VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN\nTHE COURTS OF THE STATE OF MICHIGAN OR IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SITTING IN DETROIT, MICHIGAN, AND, BY EXECUTION AND\nDELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HEREBY ACCEPTS FOR HIMSELF, HERSELF OR ITSELF AND IN RESPECT OF HIS, HER OR ITS PROPERTY GENERALLY AND UNCONDITIONALLY,\nTHE NON-EXCLUSIVEJURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN\nANY SUCH ACTION OR PROCEEDING BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT HIS, HER OR ITS ADDRESS AS PROVIDED IN SECTION\n14 HEREOF. NOTHING IN THIS SECTION 18 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS IN ANY\nOTHERJURISDICTION.\n19. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND\nDIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OFANY\nLITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.\nIN WITNESS WHEREO F, the pam'es hereto have executed this Agreement as of the day and year fiIst above written.\nASSET ACCEPTANCE CAPITAL CORP.\nBy: Isl Nathaniel F. BIadley IV\nName: Nathaniel F. BIadley IV\nTitle: P1esident& CEO\nls/James C. Lee\nName: James C. Lee	Exhibit A\nNON-INTERFERENCE, NON-DISCLOSURE AND\nNON-COMPETITION AGREEMENT\nTHIS NON-INTERFERENCE, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT is made and entered as of January 30, 2006 between ASSET ACCEPTANCE CAPITAL CORP a Delaware corporation (the\n"Company"), and James C. Lee ("Employee")\nThe Company and its affiliated entities ("Affiliates") are engaged in the business of purchasing and collecting defaulted and charged off consumer debt ("Charged Off Accounts"). The Company desires to continue the employment of\nEmployee, on an t-wil basis, in the capacity set forth in the Schedule attached hereto and in such capacity makes available to Employee certain proprietary information.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, employment of Employee by the Company on an t-will basis, the eligibility of Employee to participate in the bonus plans offered from\ntime to time by the Company or its Affiliates, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Confidentiality and on-Competition. Employee acknowledges that (i) the agreements and covenants contained herein are essential to protect the Company's business and assets and (ii) by virtue of his past and continued association\nwith the Company, Employee had access to and has obtained and will continue to have access to and obtain such knowledge, know-how, proprietary information, training and experience, which is known only to the members, officers or\nmanagers of the Company, or other employees, former employees, consultants, or others in a confidential relationship with the Company and its Affiliates, and there is a substantial probability that such knowledge, know-how,\nproprietary\ninformation, training and experience could be used to the substantial advantage of a competitor of the Company and to the Company's substantial detriment.\n2. Covenant Not to Compete. Employee agrees that for the period commencing on the date hereof and ending on (i) the date of termination of employment by the Company without Cause or (ii) one year after termination of employment\nby\nEmployee or termination of employment by the Company for Cause (as defined in the Schedule attached hereto) (as applicable, the "Restricted Period"), Employee shall not, in the Territory (as defined in the Schedule attached hereto),\ndirectly or indirectly, either for himself or for with or through any other Person, own, manage, operate, control, be employed by, participate in, loan money to or be connected in any manner with, or permit his name to be used by, any\nbusiness which is engaged principally in the business of purchasing Charged Off Accounts (a "Competitive Activity"). Company shall continue to pay the Employee during the Restricted Period and may, at its option, extend the Restricted\nPeriod by continuing to pay Employee his or her regular base salary on the regular periodic payment dates for such additional period not to exceed one year as the Board shall determine, in which event the Restricted Period shall end on\nthe date the last such periodic payment is made to Employee For purposes of this Agreement, the term "participate" includes any direct or indirect interest, whether as an officer, director, employee, partner, sole proprietor, trustee,\nbeneficiary, agent, representative independent contractor, consultant, advisor, provider of personal services, creditor, owner (other than by ownership of less than one (1) percent of the stock of a corporation that has a class of securities\nunder the Securities Exchange Act of 1934 (a "Public Company"). Company may, in the exercise of its sole discretion, elect to waive the application of this Section 2 in which case the Restricted Period shall immediately cease and\nCompany's obligation to pay salary shall terminate. If Company elects to waive application of this Section 2, this election shall not release the Employee from any other obligation contained in this Agreement.\n3. Nondisclosure of Confidential Information. Employee shall not whether during or after employment, disclose to any person or entity or use any information not in the public domain, in any form, acquired by Employee while he was\nemployed or associated with the Company or, if acquired following the termination of such association, such information which, to Employee's knowledge, has been acquired directly or indirectly, from any person or entity owing a duty\nof confidentiality to the Company or its business By way of illustration but not limitation, Confidential Information may include trade secrets, Charged Off ccounts supplier lists, collection methods information regarding bulk purchases\nof Charged Off Accounts, employee compensation arrangements, business practices, plans, policies, secret inventions, processes and compilations of information, records and specifications, as well as information related to the\nmanagement policies and plans for the Company. Employee agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain the sole and exclusive property of the Company, and\nEmployee shall on request retum to the Company the originals and all copies of any such information provided to or acquired by Employee in connection with his association with the Company, and shall return to the Company all files,\ncorrespondence and/or other communications received, maintained and/or originated by Employee during the course of such association. All written or other tangible material containing Confidential Information shall not be removed from\nthe premises of the Company, either in origina or reproduced form under any circumstances whatsoever, without the prior written consent of an authorized officer of the Company, except in the ordinary course of business, and shall\nbe\ndelivered to the Company upon the earlier of a request by the Company or the termination of Employee's employment with the Company. Employee further agrees to treat all confidential information and know-how of any affiliate, client,\nemployee, customer, contractor, vendor or supplier of the Company in the same manner as the Confidential Information.\n4.\nNo Interference. For the period commencing on the date hereof and ending two years after the date of termination of employment, Employee shall not, without the prior written approval of an authorized officer of the Company,\ndirectly or indirectly through any other Person (i) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and its Affiliates and\nany employee thereof, (ii) hire any Person who was an employee of the Company or any of its Affiliates within twelve months after such Person's employment with the Company and its Affiliates was terminated for any reason,\n(iii) induce or attempt to induce any supplier of Charged Off Accounts or other business relation of the Company or any of its Affiliates to cease doing business with the Company or its Affiliates, or in any way interfere with\nthe\nrelationship between any such supplier or business relation and the Company and its Affiliates or (iv) acquire Charged Off Accounts from any Person that was a seller of Charged Off Accounts to the Company or its A ffiliates during the\ntwelve (12) month period immediately preceding the date of termination of Employee's employment; provided, however that this clause (iv) shall not apply to any competitive bidding situation for Charged Off Accounts which is publicly\nannounced in an industry publication\n5. Reasonableness of Restrictions. Employee agrees that the covenants set forth in Sections 2, 3 and 4 are reasonable with respect to their duration, geographical area and scope. In the event that any of the provisions of Sections 2, or 4\nrelating to the geographic or temporal scope of the covenants contained therein or the nature of the business or activities restricted thereby shall be declared by a court of competent jurisdiction or arbitral panel to exceed the maximum\nrestrictiveness as to duration, geographical area and/or scope such court or arbitral pane deems enforceable, such provision shall be deemed to be replaced herein by the maximum restriction as to duration, geographical area and/or scope\ndeemed enforceable by such court or arbitral panel in light of all the facts and circumstances applicable thereto.\n2\n6. Remedies. Employee hereby acknowledges that Employee's covenants and obligations hereunder, are of special, unique, unusual, extraordinary and intellectual character which gives them a peculiar value, the actual or threatened\nbreach of which shall result in substantial injuries and damages, for which monetary relief may fail to provide an adequate remedy at law. Accordingly, Employee agrees that the Company shall be entitled in the event of an actual or\nthreatened breach of this Agreement, to seek remedies including but not necessarily limited to (i) temporary or permanent injunctive relief; (ii) specific performance and (iii) monetary relief, to the extent that monetary relief may\nconstitute an adequate remedy in whole or in part provided that Employee does not waive the right to oppose relief on the grounds that no breach or threatened breach has occurred. If any proceeding for injunctive relief and/or specific\nperformance is brought by the Company to enforce the terms of this A greement, Employee shall be deemed to have waived, and shall not assert any claim or defense that the Company has an adequate remedy at law or that such a remedy\nat law exists If any action at law or in equity is brought to enforce or interpret the terms of this Agreement the Company, if it prevails in such action, shall be entitled to reasonable attomeys' fees, costs and necessary disbursements in\naddition to any other relief which a court of competent jurisdiction may order.\n7. Property of the Company. On the termination of employment or whenever requested by the Company, Employee shall immediately deliver to the Company all property in Employee's possession or under Employee's control\nbelonging to the Company including (but not limited to) all books, records, files, customer lists, materials or corespondence, in good condition, except for ordinary wear and tear and damage by any cause beyond the reasonable control of\nEmployee.\n8. Successors; Binding greement. This Agreement shall inure to the benefit of the Company and its Affiliates, successors and assigns, and shall be binding upon Employee and his legal representatives and successors. Employee may\nnot assign this Agreement or any of Employee's interests hereunder or delegate any duty or responsibility incurred by Employee hereunder to another. The Company, at any time and without the consent of Employee, may assign or\ntransfer, for such consideration and on such terms and conditions as it may deem appropriate, this Agreement and all of its interests hereunder and no such assignment or transfer by the Company shall in any manner restrict, limi or\nmodify the interests, duties and responsibilities of Employee under this Agreement.\n9. Waiver and Modification. Any waiver, alteration or modification of any of the terms of this Agreement shall be valid only if made in writing and signed by the parties hereto; provided that any such waiver, alteration or modification\nis consented to on the Company's behalf by an authorized officer of the Company. No waiver by any of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or\ntransactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.\n10. Severability. w henever possible each provision and term of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law but if any provision or term of this Agreement shall be held to\nbe\nprohibited by or wholly invalid under such applicable law, then (i) such provision or term shall be ineffective only to the extent of such provision or invalidity, without invalidating or affecting in any manner whatsoever the remainder of\nsuch provision or term or the remaining provisions or terms of this Agreement and (ii) the invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to\nexpressing the intention of the invalid or unenforceable term or provision.\n11. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed effective and given upon actua delivery if presented personally, one business day after the date sent if sent by prepaid\ntelegram, ovemight courier service, telex, or by facsimile\n3\ntransmission or five business days after the date sent if sent b certified or registered mail, postage prepaid, return receipt requested which shall be addressed:\nIn the case of the Company to:\nAsset Acceptance Capita Corp.\n28405 Van Dyke Avenue\nWarren, Michigan 48093\nAttention: Nathaniel F. Bradley IV\nFacsimile No.: 586-446-7832\nIn\nthe case of Employee, to such Employee's address as shown in the records of the Company, or, in each case, to such other address as may be designated in writing by any such party.\n12. Captions and Section Headings. Captions and section headings herein are for convenience only, are not a part hereof and shal not be used in construing this Agreement.\n13. Entire Agreement. This greement, constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof.\n14. Counterparts This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument\n15. Survival. The agreements and covenants made by Employee in and the obligations of Employee in this Agreement shall survive the termination of this Agreement and the employment of Employee. Each such agreement and covenant\nby Employee shall be construed as a covenant and agreement independent of any other provision herein, and the existence of any claim or cause of action by Employee against the Company shall not constitute a defense to the enforcement\nof the provisions of any such covenant or agreement.\n16 Employee knowledgement Employee hereby represents to the Company that:\n(a) Employee has had the opportunity to read, and in fact has read, this Agreement in its entirety and understands each provision of this Agreement;\n(b) Employee's education, training and experience are such that following the termination of Employee's employment with the Company, Employee will have the ability to secure other gainful employment by engaging in activities that\nwill not violate any provision of this Agreement;\n(c) Employee understands and agrees that Employee has not been promised any fixed duration of employment and\n(d) notwithstanding anything herein to the contrary, no provision hereof nor any actions taken or practices policies or procedures followed by the Company shall be construed to give Employee any vested property right or any expectation\nor guarantee of continued employment.\n17. Governing Law. This Agreement shall be govemed in all respects by the laws of the State of Michigan without regard to any laws or regulations relating to choice of laws (whether of the State of Michigan or any other jurisdiction)\nthat would cause the application of the laws of any jurisdiction other than the State of Michigan\n4\n18. SUBMISSION TO JURISDICTION; VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN\nTHE COURTS OF THE STATE OF MICHIGAN OR IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SITTING IN DETROIT, MICHIGAN, AND, BY EXECUTION AND\nDELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HEREBY ACCEPTS FOR HIMSELF, HERSELF OR ITSELF AND IN RESPECT OF HIS, HER OR ITS PROPERTY GENERALLY AND UNCONDITIONALLY,\nTHE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS EACH OF THE PARTIES IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN\nANY SUCH ACTION OR PROCEEDING BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT HIS, HER OR ITS ADDRESS AS PROVIDED IN SECTION\n14 HEREOF. NOTHING IN THIS SECTION 18 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS IN ANY\nOTHER JURISDICTION.\n19. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND\nDIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY\nLITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nASSET ACCEPTANCE CAPITAL CORP.\nBy:\n/s/ Nathaniel F. Bradley IV\nName:\nNathaniel F. Bradley IV\nTitle:\nPresident & CEO\n/s/ James C. Lee\nName:\nJames C. Lee\n5	Exhibit A\nNON-INTERFERENCE, NON -DISCLOSURE AND\nNON-COMPETITION AGREEMENT\nTHIS NON-INTERFERENCE, NON-DISCLOSURE AND NON -COMPETITION AGREEMENT is made and entered as of January 30, 2006, between ASSET ACCEPTANCE CAPITAL CORP. a Delaware corporation (the\n“Company”), and James C. Lee (“Employee”).\nThe Company and its affiliated entities (“Affiliates”) are engaged in the business of purchasing and collecting defaulted and charged off consumer debt (“Charged Off Accounts”). The Company desires to continue the employment of\nEmployee, on an at-will basis, in the capacity set forth in the Schedule attached hereto and in such capacity makes available to Employee certain proprietary information.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, employment of Employee by the Company on an at-will basis, the eligibility of Employee to participate in the bonus plans offered from\ntime to time by the Company or its Affiliates, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Confidentiality and Non-Competition. Employee acknowledges that (i) the agreements and covenants contained herein are essential to protect the Company’s business and assets and (ii) by virtue of his past and continued association\nwith the Company, Employee had access to and has obtained and will continue to have access to and obtain such knowledge, know-how, proprietary information, training and experience, which is known only to the members, officers or\nmanagers of the Company, or other employees, former employees, consultants, or others in a confidential relationship with the Company and its Affiliates, and there is a substantial probability that such knowledge, know-how, proprietary\ninformation, training and experience could be used to the substantial advantage of a competitor of the Company and to the Company’s substantial detriment.\n2. Covenant Not to Compete. Employee agrees that, for the period commencing on the date hereof and ending on (i) the date of termination of employment by the Company without Cause or (ii) one year after termination of employment\nby Employee or termination of employment by the Company for Cause (as defined in the Schedule attached hereto) (as applicable, the “Restricted Period”), Employee shall not, in the Territory (as defined in the Schedule attached hereto),\ndirectly or indirectly, either for himself or for, with or through any other Person, own, manage, operate, control, be employed by, participate in, loan money to or be connected in any manner with, or permit his name to be used by, any\nbusiness which is engaged principally in the business of purchasing Charged Off Accounts (a “Competitive Activity”). Company shall continue to pay the Employee during the Restricted Period and may, at its option, extend the Restricted\nPeriod by continuing to pay Employee his or her regular base salary on the regular periodic payment dates for such additional period not to exceed one year as the Board shall determine, in which event the Restricted Period shall end on\nthe date the last such periodic payment is made to Employee. For purposes of this Agreement, the term “participate” includes any direct or indirect interest, whether as an officer, director, employee, partner, sole proprietor, trustee,\nbeneficiary, agent, representative, independent contractor, consultant, advisor, provider of personal services, creditor, owner (other than by ownership of less than one (1) percent of the stock of a corporation that has a class of securities\nunder the Securities Exchange Act of 1934 (a “Public Company”). Company may, in the exercise of its sole discretion, elect to waive the application of this Section 2 in which case the Restricted Period shall immediately cease and\nCompany’s obligation to pay salary shall terminate. If Company elects to waive application of this Section 2, this election shall not release the Employee from any other obligation contained in this Agreement.\n3. Nondisclosure of Confidential Information. Employee shall not, whether during or after employment, disclose to any person or entity or use any information not in the public domain, in any form, acquired by Employee while he was\nemployed or associated with the Company or, if acquired following the termination of such association, such information which, to Employee’s knowledge, has been acquired, directly or indirectly, from any person or entity owing a duty\nof confidentiality to the Company or its business. By way of illustration but not limitation, Confidential Information may include trade secrets, Charged Off Accounts supplier lists, collection methods, information regarding bulk purchases\nof Charged Off Accounts, employee compensation arrangements, business practices, plans, policies, secret inventions, processes and compilations of information, records and specifications, as well as information related to the\nmanagement policies and plans for the Company. Employee agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain the sole and exclusive property of the Company, and\nEmployee shall on request return to the Company the originals and all copies of any such information provided to or acquired by Employee in connection with his association with the Company, and shall return to the Company all files,\ncorrespondence and/or other communications received, maintained and/or originated by Employee during the course of such association. All written or other tangible material containing Confidential Information shall not be removed from\nthe premises of the Company, either in original or reproduced form, under any circumstances whatsoever, without the prior written consent of an authorized officer of the Company, except in the ordinary course of business, and shall be\ndelivered to the Company upon the earlier of a request by the Company or the termination of Employee’s employment with the Company. Employee further agrees to treat all confidential information and know-how of any affiliate, client,\nemployee, customer, contractor, vendor or supplier of the Company in the same manner as the Confidential Information.\n4. No Interference. For the period commencing on the date hereof and ending two years after the date of termination of employment, Employee shall not, without the prior written approval of an authorized officer of the Company,\ndirectly or indirectly through any other Person (i) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and its Affiliates and\nany employee thereof, (ii) hire any Person who was an employee of the Company or any of its Affiliates within twelve months after such Person’s employment with the Company and its Affiliates was terminated for any reason,\n(iii) induce or attempt to induce any supplier of Charged Off Accounts or other business relation of the Company or any of its Affiliates to cease doing business with the Company or its Affiliates, or in any way interfere with the\nrelationship between any such supplier or business relation and the Company and its Affiliates or (iv) acquire Charged Off Accounts from any Person that was a seller of Charged Off Accounts to the Company or its Affiliates during the\ntwelve (12) month period immediately preceding the date of termination of Employee’s employment; provided, however that this clause (iv) shall not apply to any competitive bidding situation for Charged Off Accounts which is publicly\nannounced in an industry publication.\n5. Reasonableness of Restrictions. Employee agrees that the covenants set forth in Sections 2, 3 and 4 are reasonable with respect to their duration, geographical area and scope. In the event that any of the provisions of Sections 2, 3 or 4\nrelating to the geographic or temporal scope of the covenants contained therein or the nature of the business or activities restricted thereby shall be declared by a court of competent jurisdiction or arbitral panel to exceed the maximum\nrestrictiveness as to duration, geographical area and/or scope such court or arbitral panel deems enforceable, such provision shall be deemed to be replaced herein by the maximum restriction as to duration, geographical area and/or scope\ndeemed enforceable by such court or arbitral panel in light of all the facts and circumstances applicable thereto.\n2\n6. Remedies. Employee hereby acknowledges that Employee’s covenants and obligations hereunder, are of special, unique, unusual, extraordinary and intellectual character, which gives them a peculiar value, the actual or threatened\nbreach of which shall result in substantial injuries and damages, for which monetary relief may fail to provide an adequate remedy at law. Accordingly, Employee agrees that the Company shall be entitled, in the event of an actual or\nthreatened breach of this Agreement, to seek remedies including but not necessarily limited to (i) temporary or permanent injunctive relief; (ii) specific performance; and (iii) monetary relief, to the extent that monetary relief may\nconstitute an adequate remedy in whole or in part; provided that Employee does not waive the right to oppose relief on the grounds that no breach or threatened breach has occurred. If any proceeding for injunctive relief and/or specific\nperformance is brought by the Company to enforce the terms of this Agreement, Employee shall be deemed to have waived, and shall not assert, any claim or defense that the Company has an adequate remedy at law or that such a remedy\nat law exists. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the Company, if it prevails in such action, shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in\naddition to any other relief which a court of competent jurisdiction may order.\n7. Property of the Company. On the termination of employment or whenever requested by the Company, Employee shall immediately deliver to the Company all property in Employee’s possession or under Employee’s control\nbelonging to the Company including (but not limited to) all books, records, files, customer lists, materials or correspondence, in good condition, except for ordinary wear and tear and damage by any cause beyond the reasonable control of\nEmployee.\n8. Successors; Binding Agreement. This Agreement shall inure to the benefit of the Company and its Affiliates, successors and assigns, and shall be binding upon Employee and his legal representatives and successors. Employee may\nnot assign this Agreement or any of Employee’s interests hereunder or delegate any duty or responsibility incurred by Employee hereunder to another. The Company, at any time and without the consent of Employee, may assign or\ntransfer, for such consideration and on such terms and conditions as it may deem appropriate, this Agreement and all of its interests hereunder and no such assignment or transfer by the Company shall in any manner restrict, limit or\nmodify the interests, duties and responsibilities of Employee under this Agreement.\n9. Waiver and Modification. Any waiver, alteration or modification of any of the terms of this Agreement shall be valid only if made in writing and signed by the parties hereto; provided, that any such waiver, alteration or modification\nis consented to on the Company’s behalf by an authorized officer of the Company. No waiver by any of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or\ntransactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.\n10. Severability. Whenever possible each provision and term of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or term of this Agreement shall be held to be\nprohibited by or wholly invalid under such applicable law, then (i) such provision or term shall be ineffective only to the extent of such provision or invalidity, without invalidating or affecting in any manner whatsoever the remainder of\nsuch provision or term or the remaining provisions or terms of this Agreement and (ii) the invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to\nexpressing the intention of the invalid or unenforceable term or provision.\n11. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed effective and given upon actual delivery if presented personally, one business day after the date sent if sent by prepaid\ntelegram, overnight courier service, telex, or by facsimile\n3\ntransmission or five business days after the date sent if sent by certified or registered mail, postage prepaid, return receipt requested, which shall be addressed:\nIn the case of the Company, to:\nAsset Acceptance Capital Corp.\n28405 Van Dyke Avenue\nWarren, Michigan 48093\nAttention: Nathaniel F. Bradley IV\nFacsimile No.: 586-446-7832\nIn the case of Employee, to such Employee’s address as shown in the records of the Company, or, in each case, to such other address as may be designated in writing by any such party.\n12. Captions and Section Headings. Captions and section headings herein are for convenience only, are not a part hereof and shall not be used in construing this Agreement.\n13. Entire Agreement. This Agreement, constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof.\n14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.\n15. Survival. The agreements and covenants made by Employee in and the obligations of Employee in this Agreement shall survive the termination of this Agreement and the employment of Employee. Each such agreement and covenant\nby Employee shall be construed as a covenant and agreement independent of any other provision herein, and the existence of any claim or cause of action by Employee against the Company shall not constitute a defense to the enforcement\nof the provisions of any such covenant or agreement.\n16. Employee Acknowledgement. Employee hereby represents to the Company that:\n(a) Employee has had the opportunity to read, and in fact has read, this Agreement in its entirety and understands each provision of this Agreement;\n(b) Employee’s education, training and experience are such that following the termination of Employee’s employment with the Company, Employee will have the ability to secure other gainful employment by engaging in activities that\nwill not violate any provision of this Agreement;\n(c) Employee understands and agrees that Employee has not been promised any fixed duration of employment; and\n(d) notwithstanding anything herein to the contrary, no provision hereof nor any actions taken or practices, policies or procedures followed by the Company shall be construed to give Employee any vested property right or any expectation\nor guarantee of continued employment.\n17. Governing Law. This Agreement shall be governed in all respects by the laws of the State of Michigan without regard to any laws or regulations relating to choice of laws (whether of the State of Michigan or any other jurisdiction)\nthat would cause the application of the laws of any jurisdiction other than the State of Michigan.\n4\n18. SUBMISSION TO JURISDICTION; VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN\nTHE COURTS OF THE STATE OF MICHIGAN OR IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SITTING IN DETROIT, MICHIGAN , AND , BY EXECUTION AND\nDELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HEREBY ACCEPTS FOR HIMSELF, HERSELF OR ITSELF AND IN RESPECT OF HIS, HER OR ITS PROPERTY GENERALLY AND UNCONDITIONALLY ,\nTHE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN\nANY SUCH ACTION OR PROCEEDING BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID , TO SUCH PARTY AT HIS, HER OR ITS ADDRESS AS PROVIDED IN SECTION\n14 HEREOF. NOTHING IN THIS SECTION 18 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS IN ANY\nOTHER JURISDICTION.\n19. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND\nDIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY\nLITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nASSET ACCEPTANCE CAPITAL CORP.\nBy:\n/s/ Nathaniel F. Bradley IV\nName:\nNathaniel F. Bradley IV\nTitle:\nPresident & CEO\n/s/ James C. Lee\nName:\nJames C. Lee\n5
0c7b90701575b147c4ac245ca478ee7c.pdf	effective_date jurisdiction party	EX-10 .14 23 a07-2226_1ex10d14.htm EX-10.14\nEXHIBIT 10.14\nCONSULTING, NON -COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Consulting, Non-Competition and Confidentiality Agreement (the “AGREEMENT”) is made as of the 5th day of November 2004 (the “EFFECTIVE DATE”), by and between Richard Harcke (“HARCKE”) and\nHaynes Wire Company, a Delaware corporation (“BUYER”).\nPRELIMINARY STATEMENT\nPrior to the date hereof, Sellers have engaged in the business of owning and operating a wire manufacturing business (the “BUSINESS”). This Agreement is made in connection with and as a condition to consummation of\nthe transactions contemplated by a certain Asset Purchase Agreement dated October 28, 2004, by and among Harcke, The Branford Wire and Manufacturing Company, a Connecticut corporation (“BRANFORD”), Carolina Industries, Inc.\na Connecticut corporation (“CAROLINA INDUSTRIES”) (Branford and Carolina Industries together, “SELLERS”) and Buyer (the “ASSET PURCHASE AGREEMENT”). Under the terms of the Asset Purchase Agreement, Buyer has\nagreed to purchase, and Sellers have agreed to sell, the assets used in Sellers’ operation of the Business. Harcke has acquired extensive knowledge about the conduct of the Business as the owner and operator of Sellers. This Agreement is\nentered into between Buyer and Harcke to protect the goodwill of the Business that is being sold to Buyer by Sellers and to protect against unfair competition by Harcke. All capitalized terms not herein defined have the meaning ascribed\nto them in the Asset Purchase Agreement.\nAGREEMENT\nIn consideration of the premises and mutual covenants contained in this Agreement and as an inducement to Buyer to enter into the Asset Purchase Agreement, the parties hereby agree as follows:\nI.\nCONSULTING\nA. SERVICES. For a period of six (6) months from the Effective Date, Harcke will, at the request of the officers of Buyer from time to time, provide consulting services to Buyer or any affiliate of Buyer with respect to all\naspects of the Business, including without limitation the provision of advice on business strategy and operations for the Business and management advice and consultation to the officers of Buyer (collectively, the “SERVICES”). Harcke\nshall provide the Services at such times as may be reasonably requested by Buyer.\nII.\nNON-COMPETITION\nA. AGREEMENT NOT TO COMPETE. To protect Buyer’s interest in the goodwill acquired by Buyer from Sellers and to prevent unfair competition, for a period of seven (7) years from the Effective Date (the\n“R ESTR I C TED PER I O D”), except as provided in SECTION II(A) and subject to the geographical limitations set forth in SECTION II(B), Harcke shall not:\n1. Engage in any activity directly or indirectly, as an owner, consultant, independent contractor or otherwise in the Business or any related business that is competitive with Buyer, including without\nlimitation any activity that is necessary or incident to the conduct of the Business or any related business in a manner similar to any of the business practices engaged in by either Seller during Harcke’s ownership and\noperation of such Seller; provided, however, nothing contained in this Agreement shall prevent either Seller from continuing to sell the Excess Inventory (as such term is defined in the Asset Purchase Agreement);\n2. Perform, on behalf of himself or any person or entity, the same or similar services as those performed by Harcke for either Seller prior to the date of this Agreement;\n3. Hire or employ or attempt to hire or employ any person who on or after the date hereof, is an employee, manager, or officer of Buyer (each, an “EMPLOYEE”), or in any way cause or assist or attempt to\ncause or assist, or, directly or indirectly, seek to solicit, induce, bring about, influence, promote, facilitate, cause, assist or encourage any Employee to leave Buyer’s employ or to accept employment with or otherwise\nperform services for on or on behalf of any person or entity that engages in, or otherwise competes with, the Business or any related business (“COMPETITOR”); or\n4. Contact any customers or suppliers of Buyer, either directly or indirectly, for himself or for others, so as to (i) directly or indirectly divert or influence or attempt to divert or influence any business of\nBuyer to a Competitor, or (ii) directly or indirectly solicit or provide services similar to those provided by Buyer, or (iii) otherwise directly or indirectly interfere in any fashion with Buyer’s relationship with such\ncustomers or suppliers, or with the business or operations then being conducted by Buyer.\nB. GEOGRAPHICAL LIMITATIONS. The restrictions set forth in SECTION II(A) in this Agreement shall be applicable to the following geographic areas that can be enforced against Harcke during the Restricted Period:\n1. In North America;\n2. In the United States of America;\n3. In each State in which Sellers previously had operations and/or conducted significant activities relating to the Business, and all contiguous states;\n4. In the State of North Carolina;\n5. In Henderson County, North Carolina, and all contiguous counties; and\n6. Within a fifty (50) mile radius of any location at which Sellers conducted the Business.\n2\nIII.\nCONFIDENTIALITY\nA. CONFIDENTIAL INFORMATION DEFINED . “C O N FI D EN TI A L I N FO RM A TI O N” as used in this Agreement shall mean, collectively, any and all data and information about Buyer’s or Sellers’ businesses\nincluding, but not limited to (i) all information relating to selling or financing processes, specifications and procedures relating to the Business; (ii) customer lists and other customer-related information including names, addresses,\nspecifications or requirements, purchase or delivery quantities, lines of credit, and delivery, financing, and auction schedules; (iii) supplier lists; (iv) marketing plans and concepts; and (v) sales, costs, profits, profit margins, salaries and\nother financial information pertaining to Buyer or either Seller; provided, however, that “Confidential Information” shall in no event include data or information that (a) was available to the public prior to the date hereof or (b) becomes\navailable to the public other than as a result of disclosure by Harcke in violation hereof.\nB. USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION . Throughout the Restricted Period, Harcke agrees to (i) keep confidential and not to disclose to anyone except the authorized representatives of Buyer all\nConfidential Information; and (ii) refrain from using such Confidential Information in any manner adverse to the interests of Buyer.\nC. RECORDS AND COPIES. Any and all records and copies of records pertaining to the Confidential Information that were or are made or received by either Seller or Harcke shall be kept confidential and Harcke shall\nnot disclose any such records or copies of records to anyone except Buyer and its authorized representatives. All records and copies of records of Buyer are and shall remain the property of Buyer and shall be subject to Buyer’s custody\nand control.\nIV.\nCOMPENSATION\nA. COMPENSATION . In full payment and satisfaction for the Services and Harcke’s agreements and understandings in SECTIONS I and II and subject to the terms and conditions of this Agreement, Buyer shall\ncompensate Harcke as follows:\n1. Buyer shall pay Harcke seven (7) equal annual installments of $110,000.00 each. The first installment shall be paid on the Effective Date and one (1) additional installment shall be paid on each of the\nfirst six (6) anniversaries of the Effective Date; provided that Buyer shall not be required to make any payment due on any anniversary following a breach by Harcke of his obligations under SECTIONS I or II of this\nAgreement. At any time on or after April 1, 2005, Buyer shall, upon three (3) Business Days written request from Harcke, escrow the remaining $660,000 of installments to be paid in exchange for Harcke’s performance\nunder this Agreement with Investors Bank and Trust Company. In the event that Harcke requests that Buyer provide the escrow as set forth above and Buyer does not provide such escrow, this Agreement shall\nautomatically terminate, including all obligations of Harcke not to compete under ARTICLE II and of Buyer to make payments to Harcke under this ARTICLE IV.\n3\n2. For a period of three (3) years following the Effective Date, Buyer shall provide Harcke with office space at the facilities of Buyer located at 158 N. Egerton Road, Mountain Home, North Carolina\n28758, as the parties shall mutually agree.\n3. During the Restricted Period, Buyer shall provide Harcke and his spouse with medical benefits comparable to those previously provided to Harcke and his spouse by Sellers.\nV.\nGENERAL PROVISIONS\nA. REMEDIES. Harcke acknowledges and agrees that any violation by Harcke of this Agreement will cause Buyer to suffer irreparable harm for which Buyer will not have any adequate remedy at law. Therefore, if Harcke\nthreatens to violate or violates any provision of this Agreement, Buyer shall be entitled to injunctive relief without bond, including, but not limited to, temporary restraining orders and/or preliminary or permanent injunctions, to restrain or\nenjoin any violation or threatened violation of this Agreement. Buyer’s right to injunctive relief shall be in addition to, and not in lieu of, any other legal or equitable remedies that may be available to Buyer, including but not limited to\nmonetary damages to the extent they are calculable, including lost profits.\nB. CLAIMS BY HARCKE. Any claim or cause of action by Harcke against Buyer shall not constitute a defense to the enforcement of the restrictions and covenants set forth in this Agreement and shall not be used to\nprohibit injunctive relief.\nC. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be construed and enforced in accordance with, and governed by, the Laws of the State of Indiana (without giving effect to the principles of\nconflicts of Laws thereof). The parties hereto irrevocably agree and consent to the non-exclusive jurisdiction of the courts of the State of Indiana and the federal courts of the United States, sitting in Indianapolis, Indiana for the\nadjudication of any matters arising under or in connection with this Agreement.\nD. COSTS AND ATTORNEYS’ FEES. In the event any party brings suit to construe or enforce the terms hereof, or raises this Agreement as a defense in a suit brought by another party, the prevailing party shall be\nentitled to recover its reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees incurred by that party in enforcing the terms and conditions of this Agreement.\nE. SEVERABILITY . Harcke acknowledges and agrees that the restrictions contained in this Agreement are reasonable and necessary to safeguard the protectable interests of Buyer. If, notwithstanding such\nacknowledgement and agreement, any clause, portion, section, restriction or paragraph of this Agreement is determined to be unreasonable, unenforceable or invalid for any reason, such determination shall not affect the enforceability or\nvalidity of the remainder of this Agreement, and the unreasonable, unenforceable or invalid provision shall be deemed amended and modified and shall be given effect and enforced to the maximum extent that is determined to be\nreasonable and enforceable.\n4\nF. ENTIRE AGREEMENT, MODIFICATIONS, INTERPRETATION . This Agreement constitutes the entire agreement by and between Buyer and Harcke with respect to the matters addressed herein and shall supersede\nall prior and contemporaneous agreements, representations, and understandings whether written or oral, with respect to such obligations. No amendment to or modification of this Agreement shall be effective unless the amendment or\nmodification is in writing and signed by the parties. This Agreement shall be construed as a whole, according to its fair meaning, and not strictly construed for or against either party.\nG. SUCCESSORS AND ASSIGNS. Neither party hereto shall assign or delegate this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto, and any attempted\nassignment or delegation without prior written consent shall be void and of no force or effect; provided, however, Buyer may without consent assign this Agreement and all of its rights and delegate its obligations hereunder to an affiliate\nof Buyer or to any person or entity who shall acquire all or substantially all of the assets of Buyer. This Agreement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the parties hereto.\nH. NON -WAIVER . No act or omission by Buyer shall be deemed a waiver by Buyer of any of Buyer’s rights under this Agreement. Therefore, the failure of Buyer to enforce any restriction against Harcke or to seek a\ndifferent remedy shall not be construed as a waiver or estoppel to the enforcement of the restrictions against Harcke.\nI. NOTICES. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission, with confirmation of\nsuccessful transmission, and mailed (first class postage prepaid) to the parties at the following addresses or facsimile numbers:\nIf to Buyer:\nHaynes Wire Company\n1020 West Park Avenue\nP.O . Box 9013\nKokomo, IN 46904-9013\nTel. No. (765) 456-6000\nFax. No. (765) 456-6125\nAttn: Francis J. Petro, President and CEO\nWith a copy to:\nIce Miller\nOne American Square, Box 82001\nIndianapolis, IN 46282 -0200\nFacsimile No.: (317) 592-4666\nAttn: Stephen J. Hackman\nIf to Harcke:\nRichard Harcke\n420 Vanderbilt Road\nAsheville, NC 28803\nTel. No. 828-692 -5791\nFax No. 828-697-9818\n5\nJ. COUNTERPARTS. This Agreement may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, and all such counterparts taken together shall constitute one\nand the same instrument. Signatures on this Agreement may be communicated by facsimile transmission and shall be binding upon the parties transmitting the same by facsimile transmission. Counterparts with original signatures shall be\nmailed to the other parties within three (3) calendar days of the applicable facsimile transmission; PROVIDED, that the failure to provide the original counterpart shall have no effect on the validity or the binding nature of this Agreement.\n[SIGNATURES ON FOLLOWING PAGE]\n6\nTHE PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT , AND AGREE TO BE BOUND BY ITS TERMS. They further acknowledge that they have exercised\ndue diligence in reviewing this Agreement, and that each has had adequate opportunity to consult with legal counsel or other advisors to the extent that each deemed such consultation necessary.\nIN WITNESS WHEREOF, Buyer and Harcke have executed this Agreement effective for all purposes as of the Effective Date.\n“BUYER”\n“HARCKE”\nHAYNES WIRE COMPANY\nBy:\n/s/Marcel Martin\nBy:\n/s/Richard Harcke\nMarcel Martin, Vice President-Finance,\nRichard Harcke\nChief Financial Officer and Treasurer\n7	EX-10.l4 23 a07-2226_1ex10d14.htm EX-10.14\nEXHIBIT 10.14\nCONSULTING, NON-COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Consulting, Non-Competition and Confidentiality Agreement (the "AGREEMENT”) is made as of the 5th day of November 2004 (the ”EFFECTIVE DATE"), by and between Richard Harcke ("HARCKE") and\nHaynes Wire Company, a Delaware corporation (”BUY ER”).\nPRELIMINARY STATEMENT\nPriorto the date hereof, Sellers have engaged in the business of owning and operating a wire manufacturing business (the "BUSINESS”). This Agreement is made in connection with and as a condition to consummation of\nthe transactions contemplated by a certain Asset Purchase Agreement dated October 28, 2004, by and among Harcke, The Branford Wire and Manufacturing Company, a Connecticut corporation ("BRA NFO RD ”), Carolina Industries, Inc.\na Connecticut corporation ("CA ROLINA INDUSTRIES”) (Branforcl and Carolina Industries together, "SELLERS”) and Buyer (the "A SSET PURCHASE AGREEMENT "). Under the terms of the Asset Purchase Agreement, Buyer has\nagreed to purchase, and Sellers have agreed to sell, the assets used in Sellers' operation of the Business. Harcke has acquired extensive knowledge about the conduct of the Business as the owner and operator of Sellers This Agreement is\nentered into between Buyer and Harcke to protect the goodwill of the Business that is being sold to Buyer by Sellers and to protect against unfair competition by Harcke. All capimlized terms not herein defined have the meaning ascribed\nto them in the A sset Purchase A greement.\nAGREEMENT\nIn consideration of the premises and mutual covenants contained in this Agreement and as an inducement to Buyer to enter into the Asset Purchase Agreement, the parties hereby agree as follows:\n1. CONSULTING\nA. SERVICES. For a period of six (6) months from the Effective Date, Harcke will, at the request of the officers of Buyer from time to time, provide consulting services to Buyer or any affiliate of Buyer with respect to all\naspects of the Business, including without limimtion the provision of advice on business strategy and operations for the Business and management advice and consultation to the officers of Buyer (collectively, the "SERVICES”). Harcke\nshall provide the Services at such times as may be reasonably requested by Buyer.\n11. NON-COMPETITION\nA. AGREEMENT NOT TO COMPETE. To protect Buyer’ s interest in the goodwill acquired by Buyer from Sellers and to prevent unfair competition, for a period of seven (7) years from the Effective Date (the\n"RESTRICTED PERIOD "), except as provided in SECTION II(A) and subject to the geographical limitations set forth in SECTION II(B), Harcke shall not\n \n1. Engage in any activity directly or indirectly, as an owner, consultant, independent contractor or otherwise in the Business or any related business that is competitive with Buyer, including without\nlimitation any activity that is necessary or incident to the conduct of the Business or any related business in a manner similar to any of the business practices engaged in by either Seller during Harcke's ownership and\noperation of such Seller; provided, however, nothing contained in this Agreement shall prevent either Seller from continuing to sell the Excess Inventory (as such term is defined in the Asset Purchase Agreement);\n2. Perform, on behalf of himself or any person or entity, the same or similar services as those performed by Harcke for either Seller priorto the date of this Agreement;\n3. Hire or employ or attempt to hire or employ any person who on or after the date hereof, is an employee, manager, or officer of Buyer (each, an "EMPLOY EE"), or in any way cause or assist or attempt to\ncause or assist, or, directly or indirectly, seek to solicit, induce, bring about, influence, promote, facilitate, cause, assist or encourage any Employee to leave Buyers employ or to accept employment with or otherwise\nperform services for on or on behalf of any person or entity that engages in, or otherwise competes with, the Business or any related business (”COMPETITOR"); or\n4. Contact any customers or suppliers of Buyer, either directly or indirectly, for himself or for others, so as to (i) directly or indirectly divert or influence or attempt to divert or influence any business of\nBuyer to a Competitor, or (ii) directly or indirectly solicit or provide services similarto those provided by Buyer, or (iii) otherwise directly or indirectly interfere in any fashion with Buyer’ s relationship with such\ncustomers or suppliers, or with the business or operations then being conducted by Buyer.\nB. GEOGRAPHICAL LIMITATIONS. The restrictions set forth in SECTION II(A) in this Agreement shall be applicable to the following geographic areas that can be enforced against Harcke during the Restricted Period:\n1. In North America,-\n2. In the United Smtes of America;\n3. In each State in which Sellers previously had operations and/or conducted significant activities relating to the Business, and all contiguous states;\n4. In the State of North Carolina;\n5. In Henderson County, North Carolina, and all contiguous counties; and\n6. Within a fifty (50) mile radius of any location at which Sellers conducted the Business.\nIII. CONFIDENTIALITY\nA. CONFIDENTIAL IN :ORMATION DEFINED. "CONFID ENTIAL INFORMATION” as used in this Agreement shall mean, collectively, any and all dam and information about Buyer’ s or Sellers' businesses\nincluding, but not limited to (i) all information relating to selling or financing processes, specifications and procedures relating to the Business; (ii) customer lists and other customer-related information including names, addresses,\nspecifications or requirements, purchase or delivery quantities, lines of credit, and delivery, financing, and auction schedules,- (iii) supplier lists; (iv) marketing plans and concepts; and (v) sales, costs, profits, profit margins, salaries and\nother financial information pertaining to Buyer or either Seller; provided, however, that "Confidential Information" shall in no event include data orinformation that (a) was available to the public prior to the date hereof or (b) becomes\navailable to the public other than as a result of disclosure by Harcke in violation hereof.\nB. USE OR DISCLOSU E OF CONFIDENTIAL INFORMATION. Throughout the Restricted Period, Harcke agrees to (i) keep confidential and not to disclose to anyone except the authorized represenmtives of Buyer all\nConfidential Information,- and (ii) refrain from using such Confidential Information in any manner adverse to the interests of Buyer.\nC. RECORDS AND CO 3IES. Any and all records and copies of records pertaining to the Confidential Information that were or are made or received by either Seller or Harcke shall be kept confidential and Harcke shall\n \nnot disclose any such records or copies 0 records to anyone except Buyer and its authorized representatives. All records and copies of records of Buyer are and shall remain the property of Buyer and shall be subject to Buyer’ s custody\nand control.\nIV. COMPENSATION\nA. COMPENSATION. In full payment and satisfaction for the Services and Harcke’s agreements and understandings in SECTIONS I and II and subject to the terms and conditions of this Agreement, Buyer shall\ncompensate Harcke as follows:\n1. Buyer shall pay Harcke seven (7) equal annual installments of $110,000.00 each. The first installment shall be paid on the Effective Date and one (1) additional insmllment shall be paid on each of the\nfirst six (6) anniversaries of the Effective Date; provided that Buyer shall not be required to make any payment due on any anniversary following a breach by Harcke of his obligations under SECTIONS I or II of this\nAgreement. At any time on or afterApril 1, 2005, Buyer shall, upon three (3) Business Days written request from Harcke, escrow the remaining $660,000 of installments to be paid in exchange for Harcke's performance\nunder this Agreement with Investors Bank and Trust Company. In the event that Harcke requests that Buyer provide the escrow as set forth above and Buyer does not provide such escrow, this Agreement shall\nautomatically terminate, including all obligations of Harcke not to compete underARTICLE II and of Buyer to make payments to Harcke under this ARTICLE IV.\n2. For a period of three (3) years following the Effective Date, Buyer shall provide Harcke with office space at the facilities of Buyer located at 158 N. Egerton Road, Mountain Home, North Carolina\n28758, as the parties shall mutually agree.\n3. During the Restricted Period, Buyer shall provide Harcke and his spouse with medical benefits comparable to those previously provided to Harcke and his spouse by Sellers.\nV. GENERAL PROVISIONS\nA. REMEDIES. Harcke acknowledges and agrees that any violation by Harcke of this Agreement will cause Buyer to suffer irreparable harm for which Buyer will not have any adequate remedy at law. Therefore, if Harcke\nthreatens to violate or violates any provision of this Agreement, Buyer shall be entitled to injunctive relief without bond, including, but not limited to, temporary restraining orders and/or preliminary or permanent injunctions, to restrain or\nenjoin any violation or threatened violation of this Agreement. Buyer’ s right to injunctive relief shall be in addition to, and not in lieu of, any other legal or equimble remedies that may be available to Buyer, including but not limited to\nmonemry damages to the extent they are calculable, including lost profits.\nB. CLAIMS BY HA RCKE. Any claim or cause of action by Harcke against Buyer shall not constitute a defense to the enforcement of the restrictions and covenants set forth in this Agreement and shall not be used to\nprohibit injunctive relief .\nC. G OV ERNING LAW; JURISDICTION AND VENUE. This Agreement shall be construed and enforced in accordance with, and governed by, the Laws of the State of Indiana (without giving effect to the principles of\nconflicts of Laws thereof). The parties hereto irrevocably agree and consent to the non- exclusive jurisdiction of the courts of the State of Indiana and the federal courts of the United States, sitting in Indianapolis, Indiana for the\nadjudication of any matters arising under or in connection with this Agreement.\nD. COSTS AND ATTORNEY S' FEES. In the event any party brings suit to construe or enforce the terms hereof, or raises this Agreement as a defense in a suit brought by another party, the prevailing party shall be\nentitled to recover its reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees incurred by that party in enforcing the terms and conditions of this Agreement.\nE. SEVERABILITY. Harcke acknowledges and agrees that the restrictions contained in this Agreement are reasonable and necessary to safeguard the protectable interests of Buyer. If, notwithstanding such\nacknowledgement and agreement, any clause, portion, section, restriction or paragraph of this Agreement is determined to be unreasonable, unenforceable or invalid for any reason, such determination shall not affect the enforceability or\nvalidity of the remainder of this Agreement, and the unreasonable, unenforceable or invalid provision shall be deemed amended and modified and shall be given effect and enforced to the maximum extent that is determined to be\nreasonable and enforceable.\nF. ENTIRE AGREEMENT, MODIFICATIONS, INTERPRETATION. This Agreement constitutes the entire agreement by and between Buyer and Harcke with respect to the matters addressed herein and shall supersede\nall prior and contemporaneous agreements, representations, and understandings whether written or oral, with respect to such obligations. No amendment to or modification of this Agreement shall be effective unless the amendment or\nmodification is in writing and signed by the parties. This Agreement shall be construed as a whole, according to its fair meaning, and not strictly construed for or against either party.\nG. SUC CESSORS A ND A SSIG NS. Neither party hereto shall assign or delegate this A greement or any rights or obligations hereunder without the prior written consent of the other party hereto, and any attempted\nassignment or delegation without prior written consent shall be void and of no force or effect; provided, however, Buyer may without consent assign this Agreement and all of its rights and delegate its obligations hereunder to an affiliate\nof Buyer or to any person or entity who shall acquire all or subsmntially all of the assets of Buyer. This Agreement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the parties hereto.\nH. NO N-WAIVER. No act or omission by Buyer shall be deemed a waiver by Buyer of any of Buyer’ s rights under this Agreement. Therefore, the failure of Buyer to enforce any restriction against Harcke or to seek a\ndifferent remedy shall not be construed as a waiver or estoppel to the enforcement of the restrictions against Harcke.\nI. NOTICES. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission, with confirmation of\nsuccessful transmission, and mailed (first class posmge prepaid) to the parties at the following addresses or facsimile numbers:\nIf to B uy er: Iaynes Wire Company\n020 West Park Avenue\n3.0. Box 9013\nKokomo, IN 46904-9013\n" el. No. (765) 456-6000\n:ax. No. (765) 456-6125\nAttn: Francis]. Petro, President and CEO\nWith a copy to: ce Miller\nOne American Square, Box 82001\nndianapolis, IN 46282-0200\n:acsimile No.: (317) 592-4666\nAttn: Stephen]. Hackman\nIf to Harcke: Richard Harcke\n420 Vanderbilt Road\nAsheville, NC 28803\n" el. No. 828-692-5791\n \n:ax No. 828-697-9818\nJ. COUNTERPA RTS. This Agreement may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, and all such counterparts taken together shall constitute one\nand the same instrument. Signatures on this Agreement may be communicated by facsimile transmission and shall be binding upon the parties transmitting the same by facsimile transmission. Counterpam with original signatures shall be\nmailed to the other parties within three (3) calendar days of the applicable facsimile transmission; PROVIDED, that the failure to provide the original counterpart shall have no effect on the validity or the binding nature of this Agreement.\n[SIGNATURES ON FOLLOWING PAGE]\n \nTHE PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS. They further acknowledge that they have exercised\ndue diligence in reviewing this Agreement, and that each has had adequate opportunity to consult with legal counsel or other advisors to the extent that each deemed such consultation necessary.\nIN WITNESS WHEREOF, Buyer and Harcke have executed this Agreement effective for all purposes as of the Effective Date.\n”BUY ER” "HARCKE"\nHAYNES WIRE COMPANY\nBy: /s/Mamel Martin By: /s/Richard Harcke\nVarce 55 I], VICE FIBSI €11— inance, 1C am e\nChief Financial Officer and Treasurer	EX-10.14 23 23 a07-2226 1ex10d14.htm EX-10.14\nEXHIBIT 10.14\nCONSULTING, NON-COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Consulting, Non-Competition and Confidentiality Agreement (the "AGREEMENT") is made as of the 5th day of November 2004 (the "EFFECTIVE DATE"), by and between Richard Harcke ("HARCKE") and\nHaynes Wire Company, a Delaware corporation ("BUY ER").\nPRELIMINARY STATEMENT\nPrior to the date hereof Sellers have engaged in the business of owning and operating a wire manufacturing business (the "BUSINESS"). This greement is made in connection with and as a condition to consummation\nof\nthe transactions contemplated by a certain Asset Purchase Agreement dated October 28, 2004, by and among Harcke, The Branford Wire and Manufacturing Company, a Connecticut corporation ("BRANFORD"), Carolina Industries, Inc.\na Connecticut corporation ("CAROLINA INDUSTRIES") (Branford and Carolina Industries together, "SELLERS") and Buyer (the "ASSET PURCHASE AGREEMENT"). Under the terms of the Asset Purchase Agreement, Buyer\nhas\nagreed to purchase, and Sellers have agreed to sell, the assets used in Sellers' operation of the Business. Harcke has acquired extensive knowledge about the conduct of the Business as the owner and operator of Sellers. This Agreement is\nentered into between Buyer and Harcke to protect the goodwill of the Business that is being sold to Buyer by Sellers and to protect against unfair competition by Harcke. All capitalized terms not herein defined have the meaning ascribed\nto them in the Asset Purchase Agreement.\nAGREEMENT\nIn consideration of the premises and mutual covenants contained in this Agreement and as an inducement to Buyer to enter into the Asset Purchase Agreement, the parties hereby agree as follows:\nI.\nCONSULTING\nA. SERVICES. For a period of six (6) months from the Effective Date, Harcke will at the request of the officers of Buyer from time to time, provide consulting services to Buyer or any affiliate of Buyer with respect to all\naspects of the Business, including without limitation the provision of advice on business strategy and operations for the Business and management advice and consultation to the officers of Buyer (collectively, the "SERVICES"). Harcke\nshall provide the Services at such times as may be reasonably requested by Buyer.\nII.\nNON-COMPETITION\nA. .AGREEMENT NOT TO COMPETE. To protect Buyer's interest in the goodwill acquired by Buyer from Sellers and to prevent unfair competition, for a period of seven (7) years from the Effective Date (the\n"RESTRICTED PERIOD"), except as provided in SECTION II(A) and subject to the geographical limitations set forth in SECTION II(B), Harcke shall not:\n1. Engage in any activity directly or indirectly as an owner, consultant, independent contractor or otherwise in the Business or any related business that is competitive with Buyer, including without\nlimitation any activity that is necessary or incident to the conduct of the Business or any related business in a manner similar to any of the business practices engaged in by either Seller during Harcke's ownership and\noperation of such Seller; provided, however, nothing contained in this Agreement shall prevent either Seller from continuing to sell the Excess Inventory (as such term is defined in the Asset Purchase Agreement);\n2.\nPerform, on behalf of himself or any person or entity, the same or similar services as those performed by Harcke for either Seller prior to the date of this Agreement;\n3. Hire or employ or attempt to hire or employ any person who on or after the date hereof, is an employee manager, or officer of Buyer (each, an "EMPLOYEE"), or in any way cause or assist or attempt to\ncause or assist, or, directly or indirectly, seek to solicit, induce, bring about, influence, promote, facilitate, cause, assist or encourage any Employee to leave Buyer's employ or to accept employment with or otherwise\nperform services for on or on behalf of any person or entity that engages in, or otherwise competes with, the Business or any related business ("COMPETITOR") or\n4. Contact any customers or suppliers of Buyer, either directly or indirectly, for himself or for others, so as to (i) directly or indirectly divert or influence or attempt to divert or influence any business of\nBuyer to a Competitor, or (ii) directly or indirectly solicit or provide services similar to those provided by Buyer, or (iii) otherwise directly or indirectly interfere in any fashion with Buyer's relationship with such\ncustomers or suppliers, or with the business or operations then being conducted by Buyer.\nB. GEOGRA GRAPHICAI LIMITATIONS. The restrictions set forth in SECTION II(A) in this Agreement shall be applicable to the following geographic areas that can be enforced against Harcke during the Restricted Period:\n1. In North A merica;\n2. In the United States of America;\n3. In each State in which Sellers previously had operations and/or conducted significant activities relating to the Business, and all contiguous states;\n4. In the State of North Carolina;\n5. In Henderson County, North Carolina, and all contiguous counties; and\n6. Within a fifty (50) mile radius of any location at which Sellers conducted the Business.\n2\nIII.\nCONFIDENTIALITY\nA. CONFIDENTIAL INFORMATION DEFINED. "CONFIDENTIAL INFORMATION" as used in this Agreement shall mean collectively, any and all data and information about Buyer's or Sellers' businesses\nincluding, but not limited to (i) all information relating to selling or financing processes specifications and procedures relating to the Business; (ii) customer lists and other customer-relate information including names, addresses,\nspecifications or requirements, purchase or delivery quantities lines of credit, and delivery, financing, and auction schedules; (iii) supplier lists; (iv) marketing plans and concepts; and (v) sales, costs, profits, profit margins, salaries and\nother financial information pertaining to Buyer or either Seller; provided, however, that "Confidential Information" shall in no event include data or information that (a) was available to the public prior to the date hereof or (b) becomes\navailable to the public other than as a result of disclosure by Harcke in violation hereof.\nB. USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION. Throughout the Restricted Period, Harcke agrees to (i) keep confidential and not to disclose to anyone except the authorized representatives of Buyer all\nConfidential Information; and (ii) refrain from using such Confidential Information in any manner adverse to the interests of Buyer.\nC. RECORDS AND COPIES. Any and all records and copies of records pertaining to the Confidential Information that were or are made or received by either Seller or Harcke shall be kept confidential and Harcke shall\nnot disclose any such records or copies of records to anyone except Buyer and its authorized representatives. All records and copies of records of Buyer are and shal remain the property of Buyer and shall be subjec to Buyer's custody\nand control.\nIV.\nCOMPENSATION\nA. COMPENSATION. In full payment and satisfaction for the Services and Harcke's agreements and understandings in SECTIONS I and II and subject to the terms and conditions of this A greement, Buyer shall\ncompensate Harcke as follows:\n1. Buyer shall pay Harcke seven (7) equal annual installments of $110,000.00 each. The first installment shall be paid on the Effective Date and one (1) additional installment shall be paid on each of the\nfirst six (6) anniversaries of the Effective Date; provided that Buyer shall not be required to make any payment due on any anniversary following a breach by Harcke of his obligations under SECTIONS or II of this\nAgreement At any time on or after April 1, 2005, Buyer shall, upon three (3) Business Days written request from Harcke, escrow the remaining $660,000 of installments to be paid in exchange for Harcke's performance\nunder\nthis Agreement with Investors Bank and Trust Company. In the event that Harcke requests that Buyer provide the escrow as set forth above and Buyer does not provide such escrow, this Agreement shall\nautomatically terminate, including all obligations of Harcke not to compete under ARTICLE II and of Buyer to make payments to Harcke under this ARTICLE IV.\n3\n2. For a period of three (3) years following the Effective Date, Buyer shall provide Harcke with office space at the facilities of Buyer located at 158 N. Egerton Road, Mountain Home, North Carolina\n28758, as the parties shall mutually agree.\n3. During the Restricted Period Buyer shall provide Harcke and his spouse with medical benefits comparable to those previously provided to Harcke and his spouse by Sellers.\nV.\nGENERAL PROVISIONS\nA. REMEDIES. Harcke acknowledges and agrees that any violation by Harcke of this Agreement will cause Buyer to suffer irreparable harm for which Buyer will not have any adequate remedy at law. Therefore, if Harcke\nthreatens to violate or violates any provision of this Agreement, Buyer shall be entitled to injunctive relief without bond including, but not limited to, temporary restraining orders and/or preliminary or permanent injunctions, to restrain or\nenjoin any violation or threatened violation of this Agreement Buyer's right to injunctive relief shal be in addition to, and not in lieu of, any other legal or equitable remedies that may be available to Buyer, including but not limited to\nmonetary damages to the extent they are calculable including lost profits.\nB. CLAIMS BY HARCKE Any claim or cause of action by Harcke against Buyer shall not constitute a defense to the enforcement of the restrictions and covenants set forth in this Agreement and shall not be used to\nprohibit injunctive relief.\nC.\nGOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be construed and enforced in accordance with and govemed by, the Laws of the State of Indiana (without giving effect to the principles of\nconflicts of Laws thereof). The parties hereto irrevocably agree and consent to the non-exclusive jurisdiction of the courts of the State of Indiana and the federal courts of the United States, sitting in Indianapolis, Indiana for the\nadjudication of any matters arising under or in connection with this Agreement.\nCOSTS AND ATTORNEY S' FEES. In the event any party brings suit to construe or enforce the terms hereof, or raises this Agreement as a defense in a suit brought by another party the prevailing party shall be\nentitled to recover its reasonable costs and expenses, including, without limitation, reasonable attomeys' fees incurred by that party in enforcing the terms and conditions of this Agreement.\nE. SEVERABILITY. Harcke acknowledges and agrees that the restrictions contained in this Agreement are reasonable and necessary to safeguard the protectable interests of Buyer. If, notwithstanding such\nacknowledgement and agreement, any clause, portion, section, restriction or paragraph of this Agreement is determined to be unreasonable, unenforceable or invalid for any reason, such determination shall not affect the enforceability or\nvalidity of the remainder of this Agreement, and the unreasonable, unenforceable or invalid provision shall be deemed amended and modified and shal be given effect and enforced to the maximum extent that is determined to be\nreasonable and enforceable.\n4\nF. ENTIRE AGREEMENT, MODIFICATIONS, INTERPRETATION. This Agreement constitutes the entire agreement by and between Buyer and Harcke with respect to the matters addressed herein and shall supersede\nall prior and contemporaneous agreements, representations, and understandings whether written or oral, with respect to such obligations. No amendment to or modification of this Agreement shall be effective unless the amendment or\nmodification is in writing and signed by the parties This A greement shall be construed as a whole, according to its fair meaning, and not strictly construed for or against either party.\nG. SUCCESSORS AND ASSIGNS Neither party hereto shal assign or delegate this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto, and any attempted\nassignment or delegation without prior written consent shall be void and of no force or effect provided, however, Buyer may without consent assign this Agreement and all of its rights and delegate its obligations hereunder to an affiliate\nof Buyer or to any person or entity who shall acquire all or substantially all of the assets of Buyer. This A greement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the parties hereto.\nH. NON-WAIVER. No act or omission by Buyer shall be deemed a waiver by Buyer of any of Buyer's rights under this Agreement. Therefore, the failure of Buyer to enforce any restriction against Harcke or to seek a\ndifferent remedy shall not be construed as a waiver or estoppel to the enforcement of the restrictions against Harcke.\nI. NOTICES. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission, with confirmation of\nsuccessful transmission, and mailed (first class postage prepaid) to the parties at the following addresses or facsimile numbers:\nIf to Buyer:\nHaynes Wire Company\n1020 West Park Avenue\nP.O Box 9013\nKokomo, IN 46904-9013\nTel. No. (765) 456-6000\nFax. No. (765) 456-6125\nAttn: Francis J. Petro, President and CEO\nWith a copy to:\nIce Miller\nOne A merican Square, Box 82001\nIndianapolis, IN 46282-0200\nFacsimile No.: (317) 592-4666\nAttn: Stephen Hackman\nIf to Harcke:\nRichard Harcke\n420 Vanderbilt Road\nAsheville, NC 28803\nTel. No. 828-692-5791\nFax No. 828-697-9818\n5\nJ. COUNTERPARTS. This Agreement may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, and all such counterparts taken together shall constitute\none\nand the same instrument Signatures on this Agreement may be communicated by facsimile transmission and shall be binding upon the parties transmitting the same by facsimile transmission. Counterparts with origina signatures shall be\nmailed to the other parties within three (3) calendar days of the applicable facsimile transmission; PROV IDED, that the failure to provide the original counterpart shall have no effect on the validity or the binding nature of this A greement.\n[SIGNATURES ON FOLLOWING PAGE]\n6\nTHE PARTIES HERETO CKNOWLEDGE THAT THEY HAVE REAI THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS. They further acknowledge that they have exercised\ndue diligence in reviewing this Agreement, and that each has had adequate opportunity to consult with legal counsel or other advisors to the extent that each deemed such consultation necessary.\nIN WITNESS WHEREOF, Buyer and Harcke have executed this A greement effective for all purposes as of the Effective Date.\n"BUY ER"\nHARCKE"\nHAYNES WIRE COMPANY\nBy:\n/s/Marcel Martin\nBy:\n/s/Richard Harcke\nMarcel Maruin, Vice resident-F Finance,\nRIChard Harcke\nChief Financial Officer and Treasurer\n7	EX-10 .14 23 a07-2226_1ex10d14.htm EX-10.14\nEXHIBIT 10.14\nCONSULTING, NON -COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Consulting, Non-Competition and Confidentiality Agreement (the “AGREEMENT”) is made as of the 5th day of November 2004 (the “EFFECTIVE DATE”), by and between Richard Harcke (“HARCKE”) and\nHaynes Wire Company, a Delaware corporation (“BUYER”).\nPRELIMINARY STATEMENT\nPrior to the date hereof, Sellers have engaged in the business of owning and operating a wire manufacturing business (the “BUSINESS”). This Agreement is made in connection with and as a condition to consummation of\nthe transactions contemplated by a certain Asset Purchase Agreement dated October 28, 2004, by and among Harcke, The Branford Wire and Manufacturing Company, a Connecticut corporation (“BRANFORD”), Carolina Industries, Inc.\na Connecticut corporation (“CAROLINA INDUSTRIES”) (Branford and Carolina Industries together, “SELLERS”) and Buyer (the “ASSET PURCHASE AGREEMENT”). Under the terms of the Asset Purchase Agreement, Buyer has\nagreed to purchase, and Sellers have agreed to sell, the assets used in Sellers’ operation of the Business. Harcke has acquired extensive knowledge about the conduct of the Business as the owner and operator of Sellers. This Agreement is\nentered into between Buyer and Harcke to protect the goodwill of the Business that is being sold to Buyer by Sellers and to protect against unfair competition by Harcke. All capitalized terms not herein defined have the meaning ascribed\nto them in the Asset Purchase Agreement.\nAGREEMENT\nIn consideration of the premises and mutual covenants contained in this Agreement and as an inducement to Buyer to enter into the Asset Purchase Agreement, the parties hereby agree as follows:\nI.\nCONSULTING\nA. SERVICES. For a period of six (6) months from the Effective Date, Harcke will, at the request of the officers of Buyer from time to time, provide consulting services to Buyer or any affiliate of Buyer with respect to all\naspects of the Business, including without limitation the provision of advice on business strategy and operations for the Business and management advice and consultation to the officers of Buyer (collectively, the “SERVICES”). Harcke\nshall provide the Services at such times as may be reasonably requested by Buyer.\nII.\nNON-COMPETITION\nA. AGREEMENT NOT TO COMPETE. To protect Buyer’s interest in the goodwill acquired by Buyer from Sellers and to prevent unfair competition, for a period of seven (7) years from the Effective Date (the\n“R ESTR I C TED PER I O D”), except as provided in SECTION II(A) and subject to the geographical limitations set forth in SECTION II(B), Harcke shall not:\n1. Engage in any activity directly or indirectly, as an owner, consultant, independent contractor or otherwise in the Business or any related business that is competitive with Buyer, including without\nlimitation any activity that is necessary or incident to the conduct of the Business or any related business in a manner similar to any of the business practices engaged in by either Seller during Harcke’s ownership and\noperation of such Seller; provided, however, nothing contained in this Agreement shall prevent either Seller from continuing to sell the Excess Inventory (as such term is defined in the Asset Purchase Agreement);\n2. Perform, on behalf of himself or any person or entity, the same or similar services as those performed by Harcke for either Seller prior to the date of this Agreement;\n3. Hire or employ or attempt to hire or employ any person who on or after the date hereof, is an employee, manager, or officer of Buyer (each, an “EMPLOYEE”), or in any way cause or assist or attempt to\ncause or assist, or, directly or indirectly, seek to solicit, induce, bring about, influence, promote, facilitate, cause, assist or encourage any Employee to leave Buyer’s employ or to accept employment with or otherwise\nperform services for on or on behalf of any person or entity that engages in, or otherwise competes with, the Business or any related business (“COMPETITOR”); or\n4. Contact any customers or suppliers of Buyer, either directly or indirectly, for himself or for others, so as to (i) directly or indirectly divert or influence or attempt to divert or influence any business of\nBuyer to a Competitor, or (ii) directly or indirectly solicit or provide services similar to those provided by Buyer, or (iii) otherwise directly or indirectly interfere in any fashion with Buyer’s relationship with such\ncustomers or suppliers, or with the business or operations then being conducted by Buyer.\nB. GEOGRAPHICAL LIMITATIONS. The restrictions set forth in SECTION II(A) in this Agreement shall be applicable to the following geographic areas that can be enforced against Harcke during the Restricted Period:\n1. In North America;\n2. In the United States of America;\n3. In each State in which Sellers previously had operations and/or conducted significant activities relating to the Business, and all contiguous states;\n4. In the State of North Carolina;\n5. In Henderson County, North Carolina, and all contiguous counties; and\n6. Within a fifty (50) mile radius of any location at which Sellers conducted the Business.\n2\nIII.\nCONFIDENTIALITY\nA. CONFIDENTIAL INFORMATION DEFINED . “C O N FI D EN TI A L I N FO RM A TI O N” as used in this Agreement shall mean, collectively, any and all data and information about Buyer’s or Sellers’ businesses\nincluding, but not limited to (i) all information relating to selling or financing processes, specifications and procedures relating to the Business; (ii) customer lists and other customer-related information including names, addresses,\nspecifications or requirements, purchase or delivery quantities, lines of credit, and delivery, financing, and auction schedules; (iii) supplier lists; (iv) marketing plans and concepts; and (v) sales, costs, profits, profit margins, salaries and\nother financial information pertaining to Buyer or either Seller; provided, however, that “Confidential Information” shall in no event include data or information that (a) was available to the public prior to the date hereof or (b) becomes\navailable to the public other than as a result of disclosure by Harcke in violation hereof.\nB. USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION . Throughout the Restricted Period, Harcke agrees to (i) keep confidential and not to disclose to anyone except the authorized representatives of Buyer all\nConfidential Information; and (ii) refrain from using such Confidential Information in any manner adverse to the interests of Buyer.\nC. RECORDS AND COPIES. Any and all records and copies of records pertaining to the Confidential Information that were or are made or received by either Seller or Harcke shall be kept confidential and Harcke shall\nnot disclose any such records or copies of records to anyone except Buyer and its authorized representatives. All records and copies of records of Buyer are and shall remain the property of Buyer and shall be subject to Buyer’s custody\nand control.\nIV.\nCOMPENSATION\nA. COMPENSATION . In full payment and satisfaction for the Services and Harcke’s agreements and understandings in SECTIONS I and II and subject to the terms and conditions of this Agreement, Buyer shall\ncompensate Harcke as follows:\n1. Buyer shall pay Harcke seven (7) equal annual installments of $110,000.00 each. The first installment shall be paid on the Effective Date and one (1) additional installment shall be paid on each of the\nfirst six (6) anniversaries of the Effective Date; provided that Buyer shall not be required to make any payment due on any anniversary following a breach by Harcke of his obligations under SECTIONS I or II of this\nAgreement. At any time on or after April 1, 2005, Buyer shall, upon three (3) Business Days written request from Harcke, escrow the remaining $660,000 of installments to be paid in exchange for Harcke’s performance\nunder this Agreement with Investors Bank and Trust Company. In the event that Harcke requests that Buyer provide the escrow as set forth above and Buyer does not provide such escrow, this Agreement shall\nautomatically terminate, including all obligations of Harcke not to compete under ARTICLE II and of Buyer to make payments to Harcke under this ARTICLE IV.\n3\n2. For a period of three (3) years following the Effective Date, Buyer shall provide Harcke with office space at the facilities of Buyer located at 158 N. Egerton Road, Mountain Home, North Carolina\n28758, as the parties shall mutually agree.\n3. During the Restricted Period, Buyer shall provide Harcke and his spouse with medical benefits comparable to those previously provided to Harcke and his spouse by Sellers.\nV.\nGENERAL PROVISIONS\nA. REMEDIES. Harcke acknowledges and agrees that any violation by Harcke of this Agreement will cause Buyer to suffer irreparable harm for which Buyer will not have any adequate remedy at law. Therefore, if Harcke\nthreatens to violate or violates any provision of this Agreement, Buyer shall be entitled to injunctive relief without bond, including, but not limited to, temporary restraining orders and/or preliminary or permanent injunctions, to restrain or\nenjoin any violation or threatened violation of this Agreement. Buyer’s right to injunctive relief shall be in addition to, and not in lieu of, any other legal or equitable remedies that may be available to Buyer, including but not limited to\nmonetary damages to the extent they are calculable, including lost profits.\nB. CLAIMS BY HARCKE. Any claim or cause of action by Harcke against Buyer shall not constitute a defense to the enforcement of the restrictions and covenants set forth in this Agreement and shall not be used to\nprohibit injunctive relief.\nC. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be construed and enforced in accordance with, and governed by, the Laws of the State of Indiana (without giving effect to the principles of\nconflicts of Laws thereof). The parties hereto irrevocably agree and consent to the non-exclusive jurisdiction of the courts of the State of Indiana and the federal courts of the United States, sitting in Indianapolis, Indiana for the\nadjudication of any matters arising under or in connection with this Agreement.\nD. COSTS AND ATTORNEYS’ FEES. In the event any party brings suit to construe or enforce the terms hereof, or raises this Agreement as a defense in a suit brought by another party, the prevailing party shall be\nentitled to recover its reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees incurred by that party in enforcing the terms and conditions of this Agreement.\nE. SEVERABILITY . Harcke acknowledges and agrees that the restrictions contained in this Agreement are reasonable and necessary to safeguard the protectable interests of Buyer. If, notwithstanding such\nacknowledgement and agreement, any clause, portion, section, restriction or paragraph of this Agreement is determined to be unreasonable, unenforceable or invalid for any reason, such determination shall not affect the enforceability or\nvalidity of the remainder of this Agreement, and the unreasonable, unenforceable or invalid provision shall be deemed amended and modified and shall be given effect and enforced to the maximum extent that is determined to be\nreasonable and enforceable.\n4\nF. ENTIRE AGREEMENT, MODIFICATIONS, INTERPRETATION . This Agreement constitutes the entire agreement by and between Buyer and Harcke with respect to the matters addressed herein and shall supersede\nall prior and contemporaneous agreements, representations, and understandings whether written or oral, with respect to such obligations. No amendment to or modification of this Agreement shall be effective unless the amendment or\nmodification is in writing and signed by the parties. This Agreement shall be construed as a whole, according to its fair meaning, and not strictly construed for or against either party.\nG. SUCCESSORS AND ASSIGNS. Neither party hereto shall assign or delegate this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto, and any attempted\nassignment or delegation without prior written consent shall be void and of no force or effect; provided, however, Buyer may without consent assign this Agreement and all of its rights and delegate its obligations hereunder to an affiliate\nof Buyer or to any person or entity who shall acquire all or substantially all of the assets of Buyer. This Agreement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the parties hereto.\nH. NON -WAIVER . No act or omission by Buyer shall be deemed a waiver by Buyer of any of Buyer’s rights under this Agreement. Therefore, the failure of Buyer to enforce any restriction against Harcke or to seek a\ndifferent remedy shall not be construed as a waiver or estoppel to the enforcement of the restrictions against Harcke.\nI. NOTICES. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission, with confirmation of\nsuccessful transmission, and mailed (first class postage prepaid) to the parties at the following addresses or facsimile numbers:\nIf to Buyer:\nHaynes Wire Company\n1020 West Park Avenue\nP.O . Box 9013\nKokomo, IN 46904-9013\nTel. No. (765) 456-6000\nFax. No. (765) 456-6125\nAttn: Francis J. Petro, President and CEO\nWith a copy to:\nIce Miller\nOne American Square, Box 82001\nIndianapolis, IN 46282 -0200\nFacsimile No.: (317) 592-4666\nAttn: Stephen J. Hackman\nIf to Harcke:\nRichard Harcke\n420 Vanderbilt Road\nAsheville, NC 28803\nTel. No. 828-692 -5791\nFax No. 828-697-9818\n5\nJ. COUNTERPARTS. This Agreement may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, and all such counterparts taken together shall constitute one\nand the same instrument. Signatures on this Agreement may be communicated by facsimile transmission and shall be binding upon the parties transmitting the same by facsimile transmission. Counterparts with original signatures shall be\nmailed to the other parties within three (3) calendar days of the applicable facsimile transmission; PROVIDED, that the failure to provide the original counterpart shall have no effect on the validity or the binding nature of this Agreement.\n[SIGNATURES ON FOLLOWING PAGE]\n6\nTHE PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT , AND AGREE TO BE BOUND BY ITS TERMS. They further acknowledge that they have exercised\ndue diligence in reviewing this Agreement, and that each has had adequate opportunity to consult with legal counsel or other advisors to the extent that each deemed such consultation necessary.\nIN WITNESS WHEREOF, Buyer and Harcke have executed this Agreement effective for all purposes as of the Effective Date.\n“BUYER”\n“HARCKE”\nHAYNES WIRE COMPANY\nBy:\n/s/Marcel Martin\nBy:\n/s/Richard Harcke\nMarcel Martin, Vice President-Finance,\nRichard Harcke\nChief Financial Officer and Treasurer\n7
0ea36c66d9ecce62618e9de54216dd71.pdf	effective_date jurisdiction party	Exhibit 10.8\nCLOVIS ONCOLOGY, INC.\nAT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT, AND ARBITRATION AGREEMENT\nAs a condition of my employment with Clovis Oncology, Inc., its subsidiaries, affiliates, successors or assigns (together, the\n“Company”), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid\nto me by Company, I agree to the following provisions of this Clovis Oncology, Inc. At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement (this “Agreement”):\n1. At-Will Employment\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR NO SPECIFIED\nTERM AND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE\nCONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS IN WRITING AND SIGNED BY THE PRESIDENT OR CEO\nOF CLOVIS ONCOLOGY, INC.. ACCORDINGLY, I ACKNOWLEDGE THAT MY EMPLOYMENT RELATIONSHIP MAY BE\nTERMINATED AT ANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT MY OPTION OR AT\nTHE OPTION OF THE COMPANY, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY\nMAY MODIFY JOB TITLES, SALARIES, AND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY.\n2. Confidentiality\nA. Definition of Confidential Information. I understand that “Company Confidential Information” means information that\nthe Company has or will develop, acquire, create, compile, discover or own, that has value in or to the Company’s business which is\nnot generally known and which the Company wishes to maintain as confidential. Company Confidential Information includes both\ninformation disclosed by the Company to me, and information developed or learned by me during the course of my employment with\nCompany. Company Confidential Information also includes all information of which the unauthorized disclosure could be\ndetrimental to the interests of Company, whether or not such information is identified as Company Confidential Information. By\nexample, and without limitation, Company Confidential Information includes any and all non-public information that relates to the\nactual or anticipated business and/or products, research or development of the Company, or to the Company’s technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company’s products\nor services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on which I\ncalled or with which I may become acquainted during the term of my employment), software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business\ninformation disclosed by the Company either directly or indirectly in writing, orally or\nby drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Company\nConfidential Information shall not include any such information which I can establish (i) was publicly known or made generally\navailable prior to the time of disclosure by Company to me; (ii) becomes publicly known or made generally available after disclosure\nby Company to me through no wrongful action or omission by me; or (iii) is in my rightful possession, without confidentiality\nobligations, at the time of disclosure by Company as shown by my then-contemporaneous written records. I understand that nothing\nin this Agreement is intended to limit employees’ rights to discuss the terms, wages, and working conditions of their employment, as\nprotected by applicable law.\nB. Nonuse and Nondisclosure. I agree that during and after my employment with the Company, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Company Confidential Information,\nand I will not (i) use the Company Confidential Information for any purpose whatsoever other than for the benefit of the Company in\nthe course of my employment, or (ii) disclose the Company Confidential Information to any third party without the prior written\nauthorization of the President, CEO, or the Board of Directors of the Company. Prior to disclosure when compelled by applicable\nlaw, I shall provide prior written notice to the President, CEO, and General Counsel of Clovis Oncology, Inc. (as applicable). I agree\nthat I obtain no title to any Company Confidential Information, and that as between Company and myself, Clovis Oncology, Inc.\nretains all Confidential Information as the sole property of Clovis Oncology, Inc.. I understand that my unauthorized use or disclosure\nof Company Confidential Information during my employment may lead to disciplinary action, up to and including immediate\ntermination and legal action by the Company. I understand that my obligations under this Section 2.B shall continue after termination\nof my employment.\nC. Former Employer Confidential Information. I agree that during my employment with the Company, I will not improperly\nuse, disclose, or induce the Company to use any proprietary information or trade secrets of any former employer or other person or\nentity with which I have an obligation to keep in confidence. I further agree that I will not bring onto the Company’s premises or\ntransfer onto the Company’s technology systems any unpublished document, proprietary information, or trade secrets belonging to\nany such third party unless disclosure to, and use by, the Company has been consented to in writing by such third party.\nD. Third Party Information. I recognize that the Company has received and in the future will receive from third parties\nassociated with the Company, e.g ., the Company’s customers, suppliers, licensors, licensees, partners, or collaborators (“Associated\nThird Parties”), their confidential or proprietary information (“Associated Third Party Confidential Information”) subject to a\nduty on the Company’s part to maintain the confidentiality of such Associated Third Party Confidential Information and to use it only\nfor certain limited purposes. By way of example, Associated Third Party Confidential Information may include the habits or practices\nof Associated Third Parties, the technology of Associated Third Parties, requirements\nPage2of15\nof Associated Third Parties, and information related to the business conducted between the Company and such Associated Third\nParties. I agree at all times during my employment with the Company and thereafter, that I owe the Company and its Associated\nThird Parties a duty to hold all such Associated Third Party Confidential Information in the strictest confidence, and not to use it or to\ndisclose it to any person, firm, corporation, or other third party except as necessary in carrying out my work for the Company\nconsistent with the Company’s agreement with such Associated Third Parties. I further agree to comply with any and all Company\npolicies and guidelines that may be adopted from time to time regarding Associated Third Parties and Associated Third Party\nConfidential Information. I understand that my unauthorized use or disclosure of Associated Third Party Confidential Information or\nviolation of any Company policies during my employment may lead to disciplinary action, up to and including immediate termination\nand legal action by the Company.\n3. Ownership\nA. Assignment of Inventions. As between Company and myself, I agree that all right, title, and interest in and to any and\ncopyrightable material, notes, records, drawings, designs, inventions, improvements, ideas, developments, discoveries, processes, and\ntrade secrets conceived, discovered, authored, invented, developed or reduced to practice by me, solely or in collaboration with\nothers, during the period of time I am in the employ of the Company (including during my off-duty hours), or with the use of\nCompany’s equipment, supplies, facilities, or Company Confidential Information, and any copyrights, patents, trade secrets, mask\nwork rights or other intellectual property rights relating to the foregoing, except as provided in Section 3.G below (collectively,\n“Inventions”), are the sole property of Clovis Oncology, Inc. I also agree to promptly make full written disclosure to Clovis\nOncology, Inc. of any Inventions, and to deliver and assign and hereby irrevocably assign fully to Clovis Oncology, Inc. all of my\nright, title and interest in and to Inventions. I agree that this assignment includes a present conveyance to Clovis Oncology, Inc. of\nownership of Inventions that are not yet in existence. I further acknowledge that all original works of authorship that are made by me\n(solely or jointly with others) within the scope of and during the period of my employment with the Company and that are protectable\nby copyright are “works made for hire,” as that term is defined in the United States Copyright Act. I understand and agree that the\ndecision whether or not to commercialize or market any Inventions is within the Company’s sole discretion and for the Company’s\nsole benefit, and that no royalty or other consideration will be due to me as a result of the Company’s efforts to commercialize or\nmarket any such Inventions.\nB. Pre-Existing Materials. I have attached hereto as Exhibit A, a list describing all inventions, discoveries, original works of\nauthorship, developments, improvements, trade secrets and other proprietary information or intellectual property rights owned by me\nor in which I have an interest prior to, or separate from, my employment with the Company and which relate to the Company’s\nproposed business, products, or research and development (“Prior Inventions”); or, if no such list is attached, I represent and warrant\nthat there are no such Prior Inventions. Furthermore, I represent and warrant that if any Prior Inventions are included on\nPage3of15\nExhibit A, they will not materially affect my ability to perform all obligations under this Agreement. I will inform Clovis Oncology,\nInc. in writing before incorporating such Prior Inventions into any Invention or otherwise utilizing such Prior Invention in the course\nof my employment with the Company, and the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable,\ntransferable worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell,\nreproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions,\nwithout restriction, including, without limitation, as part of or in connection with such Invention, and to practice any method related\nthereto. I will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary\ninformation owned by any third party into any Invention without Clovis Oncology, Inc.’s prior written permission.\nC. Moral Rights. Any assignment to Clovis Oncology, Inc. of Inventions includes all rights of attribution, paternity, integrity,\nmodification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral\nrights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned\nunder applicable law, I hereby waive and agree not to enforce any and all Moral Rights, including, without limitation, any limitation\non subsequent modification, to the extent permitted under applicable law.\nD. Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all\nInventions made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in\nthe form of notes, sketches, drawings, electronic files, reports, or any other format that may be specified by the Company. As\nbetween Company and myself, the records are and will be available to and remain the sole property of Clovis Oncology, Inc. at all\ntimes.\nE. Further Assurances. I agree to assist the Company, or its designee, at the Company’s expense, in every proper way to secure\nthe Company’s rights in the Inventions in any and all countries, including the disclosure to the Company of all pertinent information\nand data with respect thereto, the execution of all applications, specifications, oaths, assignments, and all other instruments that the\nCompany shall deem proper or necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in\norder to deliver, assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title, and\ninterest in and to all Inventions, and testifying in a suit or other proceeding relating to such Inventions. I further agree that my\nobligations under this Section 3.E shall continue after the termination of this Agreement.\nF. Attorney-in-Fact. I agree that, if the Company is unable because of my unavailability, mental or physical incapacity, or for\nany other reason to secure my signature with respect to any Inventions, including, without limitation, for the purpose of applying for\nor pursuing any application for any United States or foreign patents or mask work or copyright registrations covering the Inventions\nassigned to Clovis Oncology, Inc. in Section 3.A, then I\nPage4of15\nhereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact,\nto act for and on my behalf to execute and file any papers and oaths, and to do all other lawfully permitted acts with respect to such\nInventions to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and\neffect as if executed by me. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable.\nG. Exception to Assignments. I UNDERSTAND THAT THE PROVISIONS OF THIS AGREEMENT REQUIRING\nASSIGNMENT OF INVENTIONS TO CLOVIS ONCOLOGY, INC. DO NOT APPLY TO ANY INVENTION THAT QUALIFIES\nFULLY UNDER THE PROVISIONS OF THE COLORADO LABOR CODE. I WILL ADVISE CLOVIS ONCOLOGY, INC.\nPROMPTLY IN WRITING OF ANY INVENTIONS THAT I BELIEVE MEET THE CRITERIA IN THE COLORADO LABOR\nCODE AND ARE NOT OTHERWISE DISCLOSED ON EXHIBIT A.\n4. Conflicting Obligations\nA. Current Obligations. I agree that during the term of my employment with the Company, I will not engage in or undertake\nany other employment, occupation, consulting relationship, or commitment that is directly related to the business in which the\nCompany is now involved or becomes involved or has plans to become involved, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\nB. Prior Relationships. Without limiting Section 4.A, I represent and warrant that I have no other agreements, relationships, or\ncommitments to any other person or entity that conflict with the provisions of this Agreement, my obligations to the Company under\nthis Agreement, or my ability to become employed and perform the services for which I am being hired by the Company. I further\nagree that if I have signed a confidentiality agreement or similar type of agreement with any former employer or other entity, I will\ncomply with the terms of any such agreement to the extent that its terms are lawful under applicable law. I represent and warrant that\nafter undertaking a careful search (including searches of my computers, cell phones, electronic devices, and documents), I have\nreturned all property and confidential information belonging to all prior employers (and/or other third parties I have performed\nservices for in accordance with the terms of my applicable agreement). Moreover, I agree to fully indemnify the Company, its\ndirectors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from\nmy breach of my obligations under any agreement with a third party to which I am a party or obligation to which I am bound, as well\nas any reasonable attorneys’ fees and costs if the plaintiff is the prevailing party in such an action, except as prohibited by law.\nPage5of15\n5. Return of Company Materials\nUpon separation from employment with the Company, on Company’s earlier request during my employment, or at any time\nsubsequent to my employment upon demand from the Company, I will immediately deliver to Clovis Oncology, Inc., and will not\nkeep in my possession, recreate, or deliver to anyone else, any and all Company property, including, but not limited to, Company\nConfidential Information, Associated Third Party Confidential Information, all devices and equipment belonging to the Company\n(including computers, handheld electronic devices, telephone equipment, and other electronic devices), all tangible embodiments of\nthe Inventions, all electronically stored information and passwords to access such property, Company credit cards, records, data,\nnotes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials,\nphotographs, charts, any other documents and property, and reproductions of any of the foregoing items, including, without\nlimitation, those records maintained pursuant to Section 3.D. I also consent to an exit interview to confirm my compliance with this\nArticle 5.\n6. Termination Certification\nUpon separation from employment with the Company, I agree to immediately sign and deliver to the Company the “Termination\nCertification” attached hereto as Exhibit B. I also agree to keep Clovis Oncology, Inc. advised of my home and business address for a\nperiod of three (3) years after termination of my employment with the Company, so that the Company can contact me regarding my\ncontinuing obligations provided by this Agreement.\n7. Notification of New Employer\nIn the event that I leave the employ of the Company, I hereby grant consent to notification by the Company to my new employer\nabout my obligations under this Agreement.\n8. Solicitation of Employees\nTo the fullest extent permitted under applicable law, I agree that during my employment and for a period of twelve (12) months\nimmediately following the termination of my relationship with the Company for any reason, whether voluntary or involuntary, with\nor without cause, I will not directly or indirectly solicit any of the Company’s employees to leave their employment at the Company.\nI agree that nothing in this Article 8 shall affect my continuing obligations under this Agreement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2.\n9. Conflict of Interest Guidelines\nI agree to diligently adhere to all policies of the Company, including the Company’s insider trading policies and the Company’s\nConflict of Interest Guidelines. A copy of the Company’s current Conflict of Interest Guidelines is attached as Exhibit C hereto, but I\nunderstand that these Conflict of Interest Guidelines may be revised from time to time during my employment.\nPage6of15\n10. Representations\nWithout limiting my obligations under Section 3.E above, I agree to execute any proper oath or verify any proper document\nrequired to carry out the terms of this Agreement. I represent and warrant that my performance of all the terms of this Agreement will\nnot breach any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment by the\nCompany. I hereby represent and warrant that I have not entered into, and I will not enter into, any oral or written agreement in\nconflict herewith.\n11. Audit\nI acknowledge that I have no reasonable expectation of privacy in any computer, technology system, email, handheld device,\ntelephone, voicemail, or documents that are used to conduct the business of the Company. All information, data, and messages\ncreated, received, sent, or stored in these systems are, at all times, the property of the Company. As such, the Company has the right\nto audit and search all such items and systems, without further notice to me, to ensure that the Company is licensed to use the\nsoftware on the Company’s devices in compliance with the Company’s software licensing policies, to ensure compliance with the\nCompany’s policies, and for any other business-related purposes in the Company’s sole discretion. I understand that I am not\npermitted to add any unlicensed, unauthorized, or non-compliant applications to the Company’s technology systems, including,\nwithout limitation, open source or free software not authorized by the Company, and that I shall refrain from copying unlicensed\nsoftware onto the Company’s technology systems or using non-licensed software or websites. I understand that it is my responsibility\nto comply with the Company’s policies governing use of the Company’s documents and the internet, email, telephone, and\ntechnology systems to which I will have access in connection with my employment.\nI am aware that the Company has or may acquire software and systems that are capable of monitoring and recording all network\ntraffic to and from any computer I may use. The Company reserves the right to access, review, copy, and delete any of the\ninformation, data, or messages accessed through these systems with or without notice to me and/or in my absence. This includes, but\nis not limited to, all e-mail messages sent or received, all website visits, all chat sessions, all news group activity (including groups\nvisited, messages read, and postings by me), and all file transfers into and out of the Company’s internal networks. The Company\nfurther reserves the right to retrieve previously deleted messages from e-mail or voicemail and monitor usage of the Internet,\nincluding websites visited and any information I have downloaded. In addition, the Company may review Internet and technology\nsystems activity and analyze usage patterns, and may choose to publicize this data to assure that technology systems are devoted to\nlegitimate business purposes.\nPage7of15\n12. Arbitration and Equitable Relief\nA. Arbitration. IN CONSIDERATION OF MY EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE\nALL EMPLOYMENT-RELATED DISPUTES, AND MY RECEIPT OF THE COMPENSATION, PAY RAISES, AND OTHER\nBENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, I AGREE THAT ANY AND ALL\nCONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE,\nOFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF THE COMPANY, IN THEIR CAPACITY AS SUCH OR\nOTHERWISE), WHETHER BROUGHT ON AN INDIVIDUAL, GROUP, OR CLASS BASIS, ARISING OUT OF, RELATING\nTO, OR RESULTING FROM MY EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF MY EMPLOYMENT\nWITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING\nARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN COLORADO CODE OF CIVIL PROCEDURE (THE\n“ACT”), AND PURSUANT TO COLORADO LAW. THE FEDERAL ARBITRATION ACT SHALL CONTINUE TO APPLY\nWITH FULL FORCE AND EFFECT NOTWITHSTANDING THE APPLICATION OF PROCEDURAL RULES SET FORTH IN\nTHE ACT. DISPUTES THAT I AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A\nTRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING,\nBUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS\nWITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER\nWORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND\nRETRAINING NOTIFICATION ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE COLORADO LABOR CODE,\nCLAIMS OF HARASSMENT, DISCRIMINATION, AND WRONGFUL TERMINATION, AND ANY STATUTORY OR\nCOMMON LAW CLAIMS. I FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO\nANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME.\nB. Procedure. I AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY JUDICIAL ARBITRATION &\nMEDIATION SERVICES, INC. (“JAMS”), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES\n(THE “JAMS RULES”). I AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS\nBROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR\nADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO\nANY ARBITRATION HEARING. I AGREE THAT THE ARBITRATOR SHALL ISSUE A WRITTEN DECISION ON THE\nMERITS. I ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES\nAVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND\nCOSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. I AGREE THAT THE DECREE OR AWARD\nRENDERED BY THE ARBITRATOR MAY BE ENTERED AS A FINAL AND BINDING JUDGMENT IN\nPage8of15\nANY COURT HAVING JURISDICTION THEREOF. I UNDERSTAND THAT THE COMPANY WILL PAY FOR ANY\nADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR OR JAMS EXCEPT THAT I SHALL PAY ANY\nFILING FEES ASSOCIATED WITH ANY ARBITRATION THAT I INITIATE, BUT ONLY SO MUCH OF THE FILING FEES\nAS I WOULD HAVE INSTEAD PAID HAD I FILED A COMPLAINT IN A COURT OF LAW. I AGREE THAT THE\nARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH COLORADO LAW,\nINCLUDING THE COLORADO CODE OF CIVIL PROCEDURE, AND THAT THE ARBITRATOR SHALL APPLY\nSUBSTANTIVE AND PROCEDURAL COLORADO LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO\nRULES OF CONFLICT OF LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH COLORADO LAW,\nCOLORADO LAW SHALL TAKE PRECEDENCE. I AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT\nSHALL BE CONDUCTED IN COLORADO.\nC. Remedy. EXCEPT AS PROVIDED BY THE ACT AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE,\nEXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN ME AND THE COMPANY. ACCORDINGLY, EXCEPT\nAS PROVIDED FOR BY THE ACT AND THIS AGREEMENT, NEITHER I NOR THE COMPANY WILL BE PERMITTED TO\nPURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.\nD. Administrative Relief. I UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING\nAN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT\nAGENCY THAT IS AUTHORIZED TO ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOYMENT, INCLUDING,\nBUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT\nOPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS’ COMPENSATION\nBOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE ME FROM PURSUING COURT ACTION REGARDING ANY\nSUCH CLAIM, EXCEPT AS PERMITTED BY LAW.\nE. Voluntary Nature of Agreement. I ACKNOWLEDGE AND AGREE THAT I AM EXECUTING THIS AGREEMENT\nVOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY THE COMPANY OR ANYONE ELSE. I\nFURTHER ACKNOWLEDGE AND AGREE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND THAT I HAVE\nASKED ANY QUESTIONS NEEDED FOR ME TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT\nOF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY RIGHT TO A JURY\nTRIAL. FINALLY, I AGREE THAT I HAVE BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN\nATTORNEY OF MY CHOICE BEFORE SIGNING THIS AGREEMENT.\nPage9of15\n13. Miscellaneous\nA. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of Colorado\nwithout regard to Colorado’s conflicts of law rules that may result in the application of the laws of any jurisdiction other than\nColorado. To the extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Colorado for any lawsuit filed against me by the Company.\nB. Assignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of the Company, its successors, and its assigns. There are no intended third-party\nbeneficiaries to this Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, Clovis\nOncology, Inc. may assign this Agreement and its rights and obligations under this Agreement to any successor to all or substantially\nall of Clovis Oncology, Inc.’s relevant assets, whether by merger, consolidation, reorganization, reincorporation, sale of assets or\nstock, or otherwise.\nC. Entire Agreement. This Agreement, together with the Exhibits herein and any executed written offer letter between me and\nthe Company, to the extent such materials are not in conflict with this Agreement, sets forth the entire agreement and understanding\nbetween the Company and me with respect to the subject matter herein and supersedes all prior written and oral agreements,\ndiscussions, or representations between us, including, but not limited to, any representations made during my interview(s) or\nrelocation negotiations. I represent and warrant that I am not relying on any statement or representation not contained in this\nAgreement. Any subsequent change or changes in my duties, salary, or compensation will not affect the validity or scope of this\nAgreement.\nD. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nAgreement.\nE. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of this\nAgreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so\nas to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by the President or CEO of Clovis Oncology, Inc. and me. Waiver by Clovis\nOncology, Inc. of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach.\nPage 10 of 15\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with\nthe Company.\nDate: 5/12/09\n/s/ Patrick J. Mahaffy\nSignature\nPatrick J. Mahaffy\nName of Employee (typed or printed)\nWitness:\nSignature\nName (typed or printed)\nPage 11 of 15\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nIdentifying Number or Brief\nTitle\nDate\nDescription\n___\nNo inventions or improvements\n___\nAdditional Sheets Attached\nDate: 5/12/09\nPatrick J. Mahaffy\nSignature\nPatrick J. Mahaffy\nName of Employee (typed or printed)\nPage 12 of 15\nEXHIBIT B\nCLOVIS ONCOLOGY, INC. TERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports,\nproposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, any other documents or\nproperty, or reproductions of any and all aforementioned items belonging to Clovis Oncology, Inc., its subsidiaries, affiliates,\nsuccessors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of\nauthorship (as defined therein) conceived or made by me (solely or jointly with others), as covered by that agreement.\nI further agree that, in compliance with the At-Will Employment, Confidential Information, Invention Assignment, and\nArbitration Agreement, I will preserve as confidential all Company Confidential Information and Associated Third Party Confidential\nInformation, including trade secrets, confidential knowledge, data, or other proprietary information relating to products, processes,\nknow-how, designs, formulas, developmental or experimental work, computer programs, databases, other original works of\nauthorship, customer lists, business plans, financial information, or other subject matter pertaining to any business of the Company or\nany of its employees, clients, consultants, or licensees.\nI also agree that for twelve (12) months from this date, I will not directly or indirectly solicit any of the Company’s employees to\nleave their employment at the Company. I agree that nothing in this paragraph shall affect my continuing obligations under the\nAt-Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2 (Confidentiality) thereof.\nAfter leaving the Company’s employment, I will be employed by __________________________________________________\nin the position of ____________________________________________________________________.\nDate:\nSignature\nName of Employee (typed or printed)\nAddress for Notifications:\nPage 13 of 15\nEXHIBIT C\nCLOVIS ONCOLOGY, INC. CONFLICT OF INTEREST GUIDELINES\nIt is the policy of Clovis Oncology, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere\nto the highest principles of business ethics. Accordingly, all officers, employees, and independent contractors must avoid activities\nthat are in conflict, or give the appearance of being in conflict, with these principles and with the interests of the Company. The\nfollowing are potentially compromising situations that must be avoided:\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is\na violation of this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will\nEmployment, Confidential Information, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a\nbinding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors, or payments that may be deemed to constitute undue\ninfluence or otherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family\nrelationship or is or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations,\nwhere such investment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers, or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent\nemployer or other person or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales, or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\nPage 14 of 15\n12. Improperly using or authorizing the use of any inventions that are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct that is not in the best interest of the Company.\nEach officer, employee, and independent contractor must take every necessary action to ensure compliance with these guidelines\nand to bring problem areas to the attention of higher management for review. Violations of this conflict of interest policy may result\nin discharge without warning.\nPage 15 of 15	Exhibit 10.8\nCLOVIS ONCOLOGY, INC.\nAT-WILL EMPLOYMENT! CONFIDENTIAL INFORMATION!\nINVENTION ASSIG NMENTl AND ARBITRATION AGREEMENT\nAs a condition of my employment with Clovis Oncology, Inc., its subsidiaries, affiliates, successors or assigns (together, the\n”C ompany"), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid\nto me by Company, I agree to the following provisions of this Clovis Oncology, Inc. At—Will Employment, Confidential Information,\nInvention A ssignment, and Arbitration A greement (this ”Agreement”):\n1. At-W ill E mployment\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR NO SPECIFIED\nTERM AND CONSTITUTES ”AT-WILL" EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE\nCONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS IN WRITING AND SIGNED BY THE PRESIDENT OR CEO\nOF CLOVIS ONCOLOGY, INC.. ACCORDINGLY, IACKNOWLEDGE THAT MY EMPLOYMENT RELATIONSHIP MAY BE\nTERMINATED AT ANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT MY OPTION OR AT\nTHE OPTION OF THE COMPANY, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY\nMAY MODIFY JOB TITLES, SALARIES, AND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY.\n2. C onfidentiality\nA. D efinition of C onfidential Information. I understand that ”Company Confidential Information” means information that\nthe Company has or will develop, acquire, create, compile, discover or own, that has value in or to the Company' s business which is\nnot generally known and which the Company wishes to maintain as confidential. Company Confidential Information includes both\ninformation disclosed by the Company to me, and information developed or learned by me during the course of my employment with\nCompany. Company Confidential Information also includes all information of which the unauthorized disclosure could be\ndetrimental to the interests of Company, whether or not such information is identified as Company Confidential Information. By\nexample, and without limitation, Company Confidential Information includes any and all non-public information that relates to the\nactual or anticipated business and/or products, research or development of the Company, or to the Company's technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company' s products\nor services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on which I\ncalled or with which I may become acquainted during the term of my employment), software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business\ninformation disclosed by the Company either directly or indirectly in writing, orally or\nby drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Company\nConfidential Information shall not include any such information which I can establish (i) was publicly known or made generally\navailable prior to the time of disclosure by Company to me; (ii) becomes publicly known or made generally available after disclosure\nby Company to me through no wrongful action or omission by me; or (iii) is in my rightful possession, without confidentiality\nobligations, at the time of disclosure by Company as shown by my then-contemporaneous written records. I understand that nothing\nin this Agreement is intended to limit employees’ rights to discuss the terms, wages, and working conditions of their employment, as\nprotected by applicable law.\nB. Nonuse and Nondisclosure. I agree that during and after my employment with the Company, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Company Confidential Information,\nand I will not (i) use the Company Confidential Information for any purpose whatsoever other than for the benefit of the Company in\nthe course of my employment, or (ii) disclose the Company Confidential Information to any third party without the prior written\nauthorization of the President, CEO, or the Board of Directors of the Company. Prior to disclosure when compelled by applicable\nlaw, I shall provide prior written notice to the President, CEO, and General Counsel of Clovis Oncology, Inc. (as applicable). I agree\nthat I obtain no title to any Company Confidential Information, and that as between Company and myself, Clovis Oncology, Inc.\nretains all Confidential Information as the sole property of Clovis Oncology, Inc.. I understand that my unauthorized use or disclosure\nof Company Confidential Information during my employment may lead to disciplinary action, up to and including immediate\ntermination and legal action by the Company. I understand that my obligations under this Section 2.B shall continue after termination\nof my employment.\nC. Former Employer Confidential Information. I agree that during my employment with the Company, I will not improperly\nuse, disclose, or induce the Company to use any proprietary information or trade secrets of any former employer or other person or\nentity with which I have an obligation to keep in confidence. I further agree that I will not bring onto the Company' s premises or\ntransfer onto the Company' s technology systems any unpublished document, proprietary information, or trade secrets belonging to\nany such third party unless disclosure to, and use by, the Company has been consented to in writing by such third party.\nD. Third Party Information. I recognize that the Company has received and in the future will receive from third parties\nassociated with the Company, e.g., the Company’s customers, suppliers, licensors, licensees, partners, or collaborators (”Associated\nThird Parties”), their confidential or proprietary information (”A ssociated Third Party C onfidential Information") subject to a\nduty on the Company' s part to maintain the confidentiality of such Associated Third Party Confidential Information and to use it only\nfor certain limited purposes. By way of example, Associated Third Party Confidential Information may include the habits or practices\nof Associated Third Parties, the technology of A ssociated Third Parties, requirements\nPage 2 of 15\nof Associated Third Parties, and information related to the business conducted between the Company and such Associated Third\nParties. I agree at all times during my employment with the Company and thereafter, that I owe the Company and its Associated\nThird Parties a duty to hold all such Associated Third Party Confidential Information in the strictest confidence, and not to use it or to\ndisclose it to any person, firm, corporation, or other third party except as necessary in carrying out my work for the Company\nconsistent with the Company' s agreement with such A ssociated Third Parties. I further agree to comply with any and all Company\npolicies and guidelines that may be adopted from time to time regarding Associated Third Parties and Associated Third Party\nConfidential Information. I understand that my unauthorized use or disclosure of Associated Third Party Confidential Information or\nviolation of any Company policies during my employment may lead to disciplinary action, up to and including immediate termination\nand legal action by the Company.\n3. Ownership\nA. Assignment of Inventions. As between Company and myself, I agree that all right, title, and interest in and to any and\ncopyrightable material, notes, records, drawings, designs, inventions, improvements, ideas, developments, discoveries, processes, and\ntrade secrets conceived, discovered, authored, invented, developed or reduced to practice by me, solely or in collaboration with\nothers, during the period of time I am in the employ of the Company (including during my off- duty hours), or with the use of\nCompany' s equipment, supplies, facilities, or Company Confidential Information, and any copyrights, patents, trade secrets, mask\nwork rights or other intellectual property rights relating to the foregoing, except as provided in Section 3.6 below (collectively,\n”Inventions"), are the sole property of Clovis Oncology, Inc. I also agree to promptly make full written disclosure to Clovis\nOncology, Inc. of any Inventions, and to deliver and assign and hereby irrevocably assign fully to Clovis Oncology, Inc. all of my\nright, title and interest in and to Inventions. I agree that this assignment includes a present conveyance to Clovis Oncology, Inc. of\nownership of Inventions that are not yet in existence. I further acknowledge that all original works of authorship that are made by me\n(solely or jointly with others) within the scope of and during the period of my employment with the Company and that are protectable\nby copyright are ”works made for hire,” as that term is defined in the United States Copyright Act. I understand and agree that the\ndecision whether or not to commercialize or market any Inventions is within the Company' s sole discretion and for the Company' s\nsole benefit, and that no royalty or other consideration will be due to me as a result of the Company' s efforts to commercialize or\nmarket any such Inventions.\nB. Pre-Existing Materials. I have attached hereto as Exhibit A, a list describing all inventions, discoveries, original works of\nauthorship, developments, improvements, trade secrets and other proprietary information or intellectual property rights owned by me\nor in which I have an interest prior to, or separate from, my employment with the Company and which relate to the Company' s\nproposed business, products, or research and development (”Prior Inventions”); or, if no such list is attached, I represent and warrant\nthat there are no such Prior Inventions. Furthermore, I represent and warrant that if any Prior Inventions are included on\nPage 3 of 15\nExhibit A, they will not materially affect my ability to perform all obligations under this Agreement. I will inform Clovis Oncology,\nInc. in writing before incorporating such Prior Inventions into any Invention or otherwise utilizing such Prior Invention in the course\nof my employment with the Company, and the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable,\ntransferable worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell,\nreproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions,\nwithout restriction, including, without limitation, as part of or in connection with such Invention, and to practice any method related\nthereto. I will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary\ninformation owned by any third party into any Invention without Clovis Oncology, Inc.’ s prior written permission.\nC. Moral Rights. Any assignment to Clovis Oncology, Inc. of Inventions includes all rights of attribution, paternity, integrity,\nmodification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as ”moral\nrights," ”artist’ s rights, ” ”droit moral,” or the like (collectively, ”Moral Rights"). To the extent that Moral Rights cannot be assigned\nunder applicable law, I hereby waive and agree not to enforce any and all Moral Rights, including, without limitation, any limitation\non subsequent modification, to the extent permitted under applicable law.\nD. Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all\nInventions made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in\nthe form of notes, sketches, drawings, electronic files, reports, or any other format that may be specified by the Company. As\nbetween Company and myself, the records are and will be available to and remain the sole property of Clovis Oncology, Inc. at all\ntimes.\nE. Further Assurances. I agree to assist the Company, or its designee, at the Company' s expense, in every proper way to secure\nthe Company' s rights in the Inventions in any and all countries, including the disclosure to the Company of all pertinent information\nand data with respect thereto, the execution of all applications, specifications, oaths, assignments, and all other instruments that the\nCompany shall deem proper or necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in\norder to deliver, assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title, and\ninterest in and to all Inventions, and testifying in a suit or other proceeding relating to such Inventions. I further agree that my\nobligations under this Section 3.E shall continue after the termination of this Agreement.\nF. Attorney-in-Fact. I agree that, if the Company is unable because of my unavailability, mental or physical incapacity, or for\nany other reason to secure my signature with respect to any Inventions, including, without limitation, for the purpose of applying for\nor pursuing any application for any United States or foreign patents or mask work or copyright registrations covering the Inventions\nassigned to Clovis Oncology, Inc. in Section 3A, then I\nPage 4 of 15\nhereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact,\nto act for and on my behalf to execute and file any papers and oaths, and to do all other lawfully permitted acts with respect to such\nInventions to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and\neffect as if executed by me. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable.\nG. Exception t0 Assignments. I UNDERSTAND THAT THE PROVISIONS OF THIS AGREEMENT REQUIRING\nASSIGNMENT OE INVENTIONS TO CLOVIS ONCOLOGY, INC. DO NOT APPLY TO ANY INVENTION THAT QUALIFIES\nFULLY UNDER THE PROVISIONS OF THE COLORADO LABOR CODE. I WILL ADVISE CLOVIS ONCOLOGY, INC.\nPROMPTLY IN WRITING OF ANY INVENTIONS THAT I BELIEVE MEET THE CRITERIA IN THE COLORADO LABOR\nCODE AND ARE NOT OTHERWISE DISCLOSED ON EXHIBIT A.\n4. C onflicting O bligations\nA. Current Obligations. I agree that during the term of my employment with the Company, I will not engage in or undertake\nany other employment, occupation, consulting relationship, or commitment that is directly related to the business in which the\nCompany is now involved or becomes involved or has plans to become involved, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\nB. Prior Relationships. Without limiting Section 4A, I represent and warrant that I have no other agreements, relationships, or\ncommitments to any other person or entity that conflict with the provisions of this Agreement, my obligations to the Company under\nthis Agreement, or my ability to become employed and perform the services for which I am being hired by the Company. I further\nagree that if I have signed a confidentiality agreement or similar type of agreement with any former employer or other entity, I will\ncomply with the terms of any such agreement to the extent that its terms are lawful under applicable law. I represent and warrant that\nafter undertaking a careful search (including searches of my computers, cell phones, electronic devices, and documents), I have\nreturned all property and confidential information belonging to all prior employers (and/or other third parties I have performed\nservices for in accordance with the terms of my applicable agreement). Moreover, I agree to fully indemnify the Company, its\ndirectors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from\nmy breach of my obligations under any agreement with a third party to which I am a party or obligation to which I am bound, as well\nas any reasonable attorneys’ fees and costs if the plaintiff is the prevailing party in such an action, except as prohibited by law.\nPage 5 of 15\n5. Return of C ompany Materials\nUpon separation from employment with the Company, on Company's earlier request during my employment, or at any time\nsubsequent to my employment upon demand from the Company, I will immediately deliver to Clovis Oncology, Inc., and will not\nkeep in my possession, recreate, or deliver to anyone else, any and all Company property, including, but not limited to, Company\nConfidential Information, Associated Third Party Confidential Information, all devices and equipment belonging to the Company\n(including computers, handheld electronic devices, telephone equipment, and other electronic devices), all tangible embodiments of\nthe Inventions, all electronically stored information and passwords to access such property, Company credit cards, records, data,\nnotes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials,\nphotographs, charts, any other documents and property, and reproductions of any of the foregoing items, including, without\nlimitation, those records maintained pursuant to Section 3.D. I also consent to an exit interview to confirm my compliance with this\nArticle 5.\n6. Termination C ertification\nUpon separation from employment with the Company, I agree to immediately sign and deliver to the Company the ”Termination\nCertification” attached hereto as Exhibit B. I also agree to keep Clovis Oncology, Inc. advised of my home and business address for a\nperiod of three (3) years after termination of my employment with the Company, so that the Company can contact me regarding my\ncontinuing obligations provided by this Agreement.\n7. Notification of New Employer\nIn the event that I leave the employ of the Company, I hereby grant consent to notification by the Company to my new employer\nabout my obligations under this A greement.\n8. Solicitation of Employees\nTo the fullest extent permitted under applicable law, I agree that during my employment and for a period of twelve (12) months\nimmediately following the termination of my relationship with the Company for any reason, whether voluntary or involuntary, with\nor without cause, I will not directly or indirectly solicit any of the Company's employees to leave their employment at the Company.\nI agree that nothing in this Article 8 shall affect my continuing obligations under this Agreement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2.\n9. C onflict of Interest G uidelines\nI agree to diligently adhere to all policies of the Company, including the Company' s insider trading policies and the Company’s\nConflict of Interest Guidelines. A copy of the Company' s current Conflict of Interest Guidelines is attached as Exhibit C hereto, but I\nunderstand that these Conflict of Interest Guidelines may be revised from time to time during my employment.\nPage 6 of 15\n10. Representations\nWithout limiting my obligations under Section 3.E above, I agree to execute any proper oath or verify any proper document\nrequired to carry out the terms of this Agreement. I represent and warrant that my performance of all the terms of this Agreement will\nnot breach any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment by the\nCompany. I hereby represent and warrant that l have not entered into, and I will not enter into, any oral or written agreement in\nconflict herewith.\n11. Audit\nI acknowledge that l have no reasonable expectation of privacy in any computer, technology system, email, handheld device,\ntelephone, voicemail, or documents that are used to conduct the business of the Company. All information, data, and messages\ncreated, received, sent, or stored in these systems are, at all times, the property of the Company. As such, the Company has the right\nto audit and search all such items and systems, without further notice to me, to ensure that the Company is licensed to use the\nsoftware on the Company' s devices in compliance with the Company' s software licensing policies, to ensure compliance with the\nCompany' s policies, and for any other business-related purposes in the Company's sole discretion. I understand that I am not\npermitted to add any unlicensed, unauthorized, or non-compliant applications to the Company' s technology systems, including,\nwithout limitation, open source or free software not authorized by the Company, and that I shall refrain from copying unlicensed\nsoftware onto the Company’s technology systems or using non-licensed software or websites. I understand that it is my responsibility\nto comply with the Company' s policies governing use of the Company' s documents and the intemet, email, telephone, and\ntechnology systems to which I will have access in connection with my employment.\nI am aware that the Company has or may acquire software and systems that are capable of monitoring and recording all network\ntraffic to and from any computerl may use. The Company reserves the right to access, review, copy, and delete any of the\ninformation, data, or messages accessed through these systems with or without notice to me and/or in my absence. This includes, but\nis not limited to, all e-mail messages sent or received, all website visits, all chat sessions, all news group activity (including groups\nvisited, messages read, and postings by me), and all file transfers into and out of the Company' s internal networks. The Company\nfurther reserves the right to retrieve previously deleted messages from email or voicemail and monitor usage of the lntemet,\nincluding websites visited and any information I have downloaded. In addition, the Company may review lntemet and technology\nsystems activity and analyze usage patterns, and may choose to publicize this data to assure that technology systems are devoted to\nlegitimate business purposes.\nPage 7 of 15\n12. Arbitration and Equitable Relief\nA. Arbitration. IN CONSIDERATION OF MY EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE\nALL EMPLOYMENT-RELATED DISPUTES, AND MY RECEIPT OF THE COMPENSATION, PAY RAISES, AND OTHER\nBENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, IAGREE THAT ANY AND ALL\nCONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE,\nOFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF THE COMPANY, IN THEIR CAPACITY AS SUCH OR\nOTHERWISE), WHETHER BROUGHT ON AN INDIVIDUAL, GROUP, OR CLASS BASIS, ARISING OUT OF, RELATING\nTO, OR RESULTING FROM MY EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF MY EMPLOYMENT\nWITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING\nARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN COLORADO CODE OF CIVIL PROCEDURE (THE\n”ACT"), AND PURSUANT TO COLORADO LAW. THE FEDERAL ARBITRATION ACT SHALL CONTINUE TO APPLY\nWITH FULL FORCE AND EFFECT NOTWITHSTANDING THE APPLICATION OF PROCEDURAL RULES SET FORTH IN\nTHE ACT. DISPUTES THAT IAG REE TO ARBITRATE, AND THEREBY AG REE TO WAIVE ANY RIG HT TO A\nTRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING,\nBUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIG HTS ACT OF 1964, THE AMERICANS\nWITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER\nWORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND\nRETRAINING NOTIFICATION ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE COLORADO LABOR CODE,\nCLAIMS OF HARASSMENT, DISCRIMINATION, AND WRONG FUL TERMINATION, AND ANY STATUTORY OR\nCOMMON LAW CLAIMS. I FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO\nANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME.\nB. Procedure. I AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY JUDICIAL ARBITRATION &\nMEDIATION SERVICES, INC. (”JAMS"), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES\n(THE ”JAMS RULES"). IAGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS\nBROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR\nADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO\nANY ARBITRATION HEARING. IAGREE THAT THE ARBITRATOR SHALL ISSUE A WRITTEN DECISION ON THE\nMERITS. I ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES\nAVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND\nCOSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. IAGREE THAT THE DECREE OR AWARD\nRENDERED BY THE ARBITRATOR MAY BE ENTERED AS A FINAL AND BINDING JUDGMENT IN\nPage 8 of 15\nANY COURT HAVING JURISDICTION THEREOF. I UNDERSTAND THAT THE COMPANY WILL PAY FOR ANY\nADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR ORJAMS EXCEPT THAT I SHALL PAY ANY\nFILING FEES ASSOCIATED WITH ANY ARBITRATION THAT I INITIATE, BUT ONLY SO MUCH OF THE FILING FEES\nAS I WOULD HAVE INSTEAD PAID HAD I FILED A COMPLAINT IN A COURT OF LAW. IAGREE THAT THE\nARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH COLORADO LAW,\nINCLUDING THE COLORADO CODE OF CIVIL PROCEDURE, AND THAT THE ARBITRATOR SHALL APPLY\nSUBSTANTIVE AND PROCEDURAL COLORADO LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO\nRULES OF CONFLICT OF LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH COLORADO LAW,\nCOLORADO LAW SHALL TAKE PRECEDENCE. I AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT\nSHALL BE CONDUCTED IN COLORADO.\nC. Remedy. EXCEPT AS PROVIDED BY THE ACT AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE,\nEXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN ME AND THE COMPANY. ACCORDINGLY, EXCEPT\nAS PROVIDED FOR BY THE ACT AND THIS AGREEMENT, NEITHER I NOR THE COMPANY WILL BE PERMITTED TO\nPURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.\nD. Administrative Relief. I UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING\nAN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT\nAGENCY THAT IS AUTHORIZED TO ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOYMENT, INCLUDING,\nBUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT\nOPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS’ COMPENSATION\nBOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE ME FROM PURSUING COURT ACTION REGARDING ANY\nSUCH CLAIM, EXCEPT AS PERMITTED BY LAW.\nE. Voluntary Nature 0ngreement. IACKNOWLEDGE AND AGREE THAT IAM EXECUTING THIS AGREEMENT\nVOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY THE COMPANY OR ANYONE ELSE. I\nFURTHER ACKNOWLEDGE AND AGREE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND THAT I HAVE\nASKED ANY QUESTIONS NEEDED FOR ME TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT\nOF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY RIGHT TO A JURY\nTRIAL. FINALLY, I AGREE THAT I HAVE BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN\nATTORNEY OF MY CHOICE BEFORE SIGNING THIS AGREEMENT.\nPage 9 of 15\n13. M iscellaneous\nA. G overning Law; Consent to Personal jurisdiction. This Agreement will be governed by the laws of the State of Colorado\nwithout regard to Colorado' 5 conflicts of law rules that may result in the application of the laws of any jurisdiction other than\nColorado. To the extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Colorado for any lawsuit filed against me by the Company.\nB. Assignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of the Company, its successors, and its assigns. There are no intended third-party\nbeneficiaries to this Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, Clovis\nOncology, Inc. may assign this Agreement and its rights and obligations under this Agreement to any successor to all or substantially\nall of Clovis Oncology, Inc.’ 5 relevant assets, whether by merger, consolidation, reorganization, reincorporation, sale of assets or\nstock, or otherwise.\nC. Entire Agreement. This Agreement, together with the Exhibits herein and any executed written offer letter between me and\nthe Company, to the extent such materials are not in conflict with this Agreement, sets forth the entire agreement and understanding\nbetween the Company and me with respect to the subject matter herein and supersedes all prior written and oral agreements,\ndiscussions, or representations between us, including, but not limited to, any representations made during my interview(s) or\nrelocation negotiations. I represent and warrant that I am not relying on any statement or representation not contained in this\nA greement. Any subsequent change or changes in my duties, salary, or compensation will not affect the validity or scope of this\nA greement.\nD. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nA greement.\nE. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of this\nAgreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so\nas to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this A greement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by the President or CEO of Clovis Oncology, Inc. and me. Waiver by Clovis\nOncology, Inc. of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach.\nPage 10 of 15\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with\nthe Company.\nDate: 5/12/09 /s/ Patrick]. Mahaffy\nSignafire\nPatrick]. Mahaffy\name 0 mp oyee pe or pnn e\nWitness:\nSignafiire\nName (Wped or pnnfidi '\nPage 11 of 15\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS 0F AUTHORSHIP\nIdentifying Number or Brief\nTitle D ate D escription\n___ No inventions or improvements\n___ Additional Sheets Attached\nD ate: 5/12/09 Patrick]. Mahaffy\nSignafire\nPatrick]. Mahaffy\name 0 mp oyee pe or pnn e\nPage 12 of 15\nEXHIBIT B\nCLOVIS ONCOLOGY, INC. TERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports,\nproposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, any other documents or\nproperty, or reproductions of any and all aforementioned items belonging to Clovis Oncology, Inc., its subsidiaries, affiliates,\nsuccessors or assigns (together, the ”C ompany").\nI further certify that I have complied with all the terms of the Company' s At—Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of\nauthorship (as defined therein) conceived or made by me (solely or jointly with others), as covered by that agreement.\nI further agree that, in compliance with the At—Will Employment, Confidential Information, Invention A ssignment, and\nArbitration Agreement, I will preserve as confidential all Company Confidential Information and Associated Third Party Confidential\nInformation, including trade secrets, confidential knowledge, data, or other proprietary information relating to products, processes,\nknow-how, designs, formulas, developmental or experimental work, computer programs, databases, other original works of\nauthorship, customer lists, business plans, financial information, or other subject matter pertaining to any business of the Company or\nany of its employees, clients, consultants, or licensees.\nI also agree that for twelve (12) months from this date, I will not directly or indirectly solicit any of the Company’s employees to\nleave their employment at the Company. I agree that nothing in this paragraph shall affect my continuing obligations under the\nAt—Will Employment, Confidential Information, Invention A ssignment, and Arbitration A greement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2 (Confidentiality) thereof.\nAfter leaving the Company' s employment, I will be employed by\nin the position of\n \n \nDate:\nSignafire\name 0 mp oyee pe or pnn e\nAddress for Notifications:\nPage 13 of15\nEXHIBIT C\nCLOVIS ONCOLOGY, INC. CONFLICT OF INTEREST GUIDELINES\nIt is the policy of Clovis Oncology, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere\nto the highest principles of business ethics. Accordingly, all officers, employees, and independent contractors must avoid activities\nthat are in conflict, or give the appearance of being in conflict, with these principles and with the interests of the Company. The\nfollowing are potentially compromising situations that must be avoided:\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is\na violation of this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will\nEmployment, Confidential Information, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a\nbinding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors, or payments that may be deemed to constitute undue\ninfluence or otherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family\nrelationship or is or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations,\nwhere such investment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers, or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent\nemployer or other person or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales, or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\nPage 14 of 15\n12. Improperly using or authorizing the use of any inventions that are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct that is not in the best interest of the Company.\nEach officer, employee, and independent contractor must take every necessary action to ensure compliance with these guidelines\nand to bring problem areas to the attention of higher management for review. Violations of this conflict of interest policy may result\nin discharge without warning.\nPage 15 of15	Exhibit 10.8\nCLOVIS ONCOLOGY, INC.\nAT-WILL EMPLOYMENT CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT, AND ARBITRATION AGREEMENT\nAs a condition of my employment with Clovis Oncology, Inc., its subsidiaries, affiliates, successors or assigns (together, the\n"Company"), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid\nto\nme by Company, I agree to the following provisions of this Clovis Oncology, Inc. At-Will Employment, Confidential Information,\nInvention A ssignment, and rbitration A greement (this "Agreement"):\n1. At-Will Employment\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOY MENT WITH THE COMPANY IS FOR NO SPECIFIED\nTERM AND CONSTITUTES "AT-WILL" EMPLOY MENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE\nCONTRARY IS NAUTHORIZED AND NOT VALID UNLESS IN WRITING AND SIGNED BY THE PRESIDENT OR CEO\nOF CLOVIS ONCOLOGY, INC.. ACCORDINGLY, IACKNOWLEDGE THAT MY EMPLOY MENT RELATIONSHIP MAY BE\nTERMINATED AT ANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT MY OPTION OR AT\nTHE OPTION OF THE COMPANY, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY\nMAY MODIFY JOB TITLES, SALARIES, AND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY.\n2. Confidentiality\nA. Definition of Confidential Information. I understand that 'Company Confidential Information" means information that\nthe Company has or will develop, acquire, create, compile, discover or own, that has value in or to the Company's business which\nis\nnot generally known and which the Company wishes to maintain as confidential. Company Confidential Information includes both\ninformation disclosed by the Company to me, and information developed or learned by me during the course of my employment with\nCompany. Company Confidential Information also includes all information of which the unauthorized disclosure could be\ndetrimental to the interests of Company, whether or not such information is identified as Company Confidential Information. By\nexample, and without limitation, Company Confidential Information includes any and all non-public information that relates to the\nactual or anticipated business and/or products, research or development of the Company, or to the Company's technical data,\ntrade\nsecrets, or know-how, including but not limited to, research, product plans, or other information regarding the Company's products\nor services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on which I\ncalled or with which I may become acquainted during the term of my employment), software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business\ninformation disclosed by the Company either directly or indirectly in writing, orally or\nby drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Company\nConfidential Information shall not include any such information which I can establish (i) was publicly known or made generally\navailable prior to the time of disclosure by Company to me; (ii) becomes publicly known or made generally available after disclosure\nby Company to me through no wrongful action or omission by me; or (iii) is in my rightful possession, without confidentiality\nobligations, at the time of disclosure by Company as shown by my then-contemporaneous written records. I understand that nothing\nin this A greement is intended to limit employees' rights to discuss the terms, wages, and working conditions of their employment as\nprotected by applicable law.\nB. Nonuse and Nondisclosure. I agree that during and after my employment with the Company, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Company Confidential Information,\nand I will not (i) use the Company Confidential Information for any purpose whatsoever other than for the benefit of the Company in\nthe course of my employment, or (ii) disclose the Company Confidential Information to any third party without the prior written\nauthorization of the President, CEO, or the Board of Directors of the Company. Prior to disclosure when compelled by applicable\nlaw, I shall provide prior written notice to the President, CEO, and General Counsel of Clovis Oncology, Inc. (as applicable) I agree\nthat I obtain no title to any Company Confidential Information, and that as between Company and myself, Clovis Oncology, Inc.\nretains all Confidential Information as the sole property of Clovis Oncology, Inc.. I understand that my unauthorized use or disclosure\nof Company Confidential Information during my employment may lead to disciplinary action, up to and including immediate\ntermination and legal action by the Company. I understand that my obligations under this Section 2.B shall continue after termination\nof my employment.\nC. Former Employer Confidential Information I agree that during my employment with the Company, I will not improperly\nuse, disclose, or induce the Company to use any proprietary information or trade secrets of any former employer or other person or\nentity with which I have an obligation to keep in confidence. I further agree that I will not bring onto the Company's premises or\ntransfer onto the Company's technology systems any unpublished document, proprietary information, or trade secrets belonging to\nany such third party unless disclosure to, and use by, the Company has been consented to in writing by such third party.\nD. Third Party Information. I recognize that the Company has received and in the future will receive from third parties\nassociated with the Company, e.g., the Company's customers, suppliers, licensors, licensees, partners, or collaborators "Associated\nThird\nParties"), their confidential or proprietary information "Associated Third Party Confidential Information") subject to a\nduty on the Company's part to maintain the confidentiality of such A ssociated Third Party Confidential Information and to use it only\nfor certain limited purposes. By way of example, A ssociated Third Party Confidential Information may include the habits or practices\nof ssociated Third Parties, the technology of A ssociated Third Parties, requirements\nPage 2 of 15\nof A ssociated Third Parties, and information related to the business conducted between the Company and such A ssociated Third\nParties. I agree at all times during my employment with the Company and thereafter, that I owe the Company and its A ssociated\nThird Parties a duty to hold all such ssociated Third Party Confidential Information in the strictest confidence, and not to use it or to\ndisclose it to any person, firm, corporation, or other third party except as necessary in carrying out my work for the Company\nconsistent with the Company's agreement with such A ssociated Third Parties. I further agree to comply with any and all Company\npolicies and guidelines that may be adopted from time to time regarding A ssociated Third Parties and A ssociated Third Party\nConfidential Information. I understand that my unauthorized use or disclosure of A ssociated Third Party Confidential Information or\nviolation of any Company policies during my employment may lead to disciplinary action, up to and including immediate termination\nand legal action by the Company.\n3. Ownership\nA. Assignment of Inventions. As between Company and myself, I agree that all right, title, and interest in and to any and\ncopyrightable material, notes, records, drawings, designs, inventions, improvements, ideas, developments, discoveries, processes, and\ntrade secrets conceived, discovered, authored, invented, developed or reduced to practice by me, solely or in collaboration with\nothers, during the period of time I am in the employ of the Company (including during my off-duty hours), or with the use of\nCompany's equipment, supplies, facilities, or Company Confidential Information, and any copyrights, patents, trade secrets, mask\nwork rights or other intellectual property rights relating to the foregoing, except as provided in Section 3.G below (collectively,\n"Inventions"), are the sole property of Clovis Oncology, Inc. I also agree to promptly make ful written disclosure to Clovis\nOncology, Inc. of any Inventions, and to deliver and assign and hereby irrevocably assign fully to Clovis Oncology, Inc. all of my\nright, title and interest in and to Inventions. I agree that this assignment includes a present conveyance to Clovis Oncology, Inc. of\nownership of Inventions that are not yet in existence. I further acknowledge that all original works of authorship that are made by me\n(solely or jointly with others) within the scope of and during the period of my employment with the Company and that are protectable\nby copyright are "works made for hire," as that term is defined in the United States Copyright Act. I understand and agree that the\ndecision whether or not to commercialize or market any Inventions is within the Company's sole discretion and for the Company's\nsole benefit, and that no royalty or other consideration will be due to me as a result of the Company's efforts to commercialize or\nmarket any such Inventions.\nB. Pre-Existing Materials. I have attached hereto as Exhibit A, a list describing all inventions, discoveries, original works of\nauthorship, developments, improvements, trade secrets and other proprietary information or intellectual property rights owned by me\nor\nin which I have an interest prior to, or separate from, my employment with the Company and which relate to the Company's\nproposed business, products, or research and development ("Prior Inventions"); or, if no such list is attached, I represent and warrant\nthat there are no such Prior Inventions. Furthermore, I represent and warrant that if any Prior Inventions are included on\nPage 3 of 15\nExhibit A, they will not materially affect my ability to perform all obligations under this A greement. I will inform Clovis Oncology,\nInc.\nin\nwriting before incorporating such Prior Inventions into any Invention or otherwise utilizing such Prior Invention in the course\nof my employment with the Company, and the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable,\ntransferable worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell,\nreproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions,\nwithout restriction, including, without limitation, as part of or in connection with such Invention, and to practice any method related\nthereto. I will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary\ninformation owned by any third party into any Invention without Clovis Oncology, Inc.'s prior written permission.\nC. Moral Rights. A ny assignment to Clovis Oncology, Inc. of Inventions includes all rights of attribution, paternity, integrity,\nmodification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as "moral\nrights," "artist's rights," moral," or the like (collectively, "Moral Rights"). To the extent that Moral Rights cannot be assigned\nunder applicable law, I hereby waive and agree not to enforce any and all Moral Rights, including, without limitation, any limitation\non subsequent modification, to the extent permitted under applicable law.\nD. Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all\nInventions made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in\nthe form of notes, sketches, drawings, electronic files, reports, or any other format that may be specified by the Company. As\nbetween Company and myself, the records are and will be available to and remain the sole property of Clovis Oncology, Inc. at all\ntimes.\nE. Further Assurances. I agree to assist the Company, or its designee, at the Company's expense, in every proper way to secure\nthe Company's rights in the Inventions in any and all countries, including the disclosure to the Company of all pertinent information\nand data with respect thereto, the execution of all applications, specifications, oaths, assignments, and all other instruments that the\nCompany shall deem proper or necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in\norder to deliver, assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title, and\ninterest in and to all Inventions, and testifying in a suit or other proceeding relating to such Inventions. I further agree that my\nobligations under this Section 3.E shall continue after the termination of this Agreement.\nF.\nAttorney-in-Fact. I agree that, if the Company is unable because of my unavailability, mental or physical incapacity, or for\nany other reason to secure my signature with respect to any Inventions, including, without limitation, for the purpose of applying for\nor pursuing any application for any United States or foreign patents or mask work or copyright registrations covering the Inventions\nassigned to Clovis Oncology, Inc. in Section 3.A, then I\nPage 4 of 15\nhereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact,\nto\nact for and on my behalf to execute and file any papers and oaths, and to do all other lawfully permitted acts with respect to such\nInventions to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and\neffect as if executed by me. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable.\nG. Exception to Assignments. I UNDERSTAND THAT THE PROVISIONS OF THIS AGREEMENT REQUIRING\nASSIGNMENT OF INVENTIONS TO CLOVIS ONCOLOGY INC. DO NOT APPLY TO ANY INVENTION THAT QUALIFIES\nFULLY UNDER THE PROVISIONS OF THE COLORADO LABOR CODE. I WILL ADVISE CLOVIS ONCOLOGY INC.\nPROMPTLY IN WRITING OF ANY INVENTIONS THAT I BELIEVE MEET THE CRITERIA IN THE COLORADO LABOR\nCODE AND ARE NOT OTHERWISE DISCLOSED ON EXHIBIT A.\n4. Conflicting Obligations\nA. Current Obligations. I agree that during the term of my employment with the Company, I will not engage in or undertake\nany other employment, occupation, consulting relationship, or commitment that is directly related to the business in which the\nCompany is now involved or becomes involved or has plans to become involved, nor wil I engage in any other activities that conflict\nwith my obligations to the Company.\nB. Prior Relationships. Without limiting Section 4.A, I represent and warrant that I have no other agreements, relationships, or\ncommitments to any other person or entity that conflict with the provisions of this A greement, my obligations to the Company under\nthis A greement, or my ability to become employed and perform the services for which I am being hired by the Company. I further\nagree that if I have signed a confidentiality agreement or similar type of agreement with any former employer or other entity, I will\ncomply with the terms of any such agreement to the extent that its terms are lawful under applicable law. I represent and warrant that\nafter undertaking a careful search (including searches of my computers, cell phones electronic devices, and documents) I have\nretumed all property and confidential information belonging to all prior employers (and/or other third parties I have performed\nservices for in accordance with the terms of my applicable agreement). Moreover, I agree to fully indemnify the Company, its\ndirectors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from\nmy breach of my obligations under any agreement with a third party to which I am a party or obligation to which I am bound, as well\nas any reasonable attomeys' fees and costs if the plaintiff is the prevailing party in such an action, except as prohibited by law.\nPage 5 of 15\n5. Return of Company Materials\nUpon separation from employment with the Company, on Company's earlier request during my employment, or at any time\nsubsequent to my employment upon demand from the Company, I will immediately deliver to Clovis Oncology, Inc., and will not\nkeep in my possession, recreate, or deliver to anyone else, any and all Company property, including, but not limited to, Company\nConfidential Information, A ssociated Third Party Confidential Information, all devices and equipment belonging to the Company\n(including computers, handheld electronic devices, telephone equipment, and other electronic devices), all tangible embodiments of\nthe Inventions, all electronically stored information and passwords to access such property, Company credit cards, records, data,\nnotes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials,\nphotographs, charts, any other documents and property, and reproductions of any of the foregoing items, including, without\nlimitation, those records maintained pursuant to Section 3.D. I also consent to an exit interview to confirm my compliance with this\nArticle 5.\n6. Termination C ertification\nUpon separation from employment with the Company, I agree to immediately sign and deliver to the Company the "Termination\nCertification" attached hereto as Exhibit B. I also agree to keep Clovis Oncology, Inc. advised of my home and business address for a\nperiod of three (3) years after termination of my employment with the Company, so that the Company can contact me regarding my\ncontinuing obligations provided by this A greement.\n7. Notification of New Employer\nIn the event that I leave the employ of the Company, I hereby grant consent to notification by the Company to my new employer\nabout my obligations under this A greement\n8. Solicitation of Employees\nTo the fullest extent permitted under applicable law, I agree that during my employment and for a period of twelve (12) months\nimmediately following the termination of my relationship with the Company for any reason, whether voluntary or involuntary, with\nor without cause, I will not directly or indirectly solicit any of the Company's employees to leave their employment at the Company.\nI agree that nothing in this Article 8 shall affect my continuing obligations under this greement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2.\n9. Conflict of Interest Guidelines\nI agree to diligently adhere to all policies of the Company, including the Company's insider trading policies and the Company's\nConflict of Interest Guidelines. A copy of the Company's current Conflict of Interest Guidelines is attached as Exhibit C hereto, but I\nunderstand that these Conflict of Interest Guidelines may be revised from time to time during my employment.\nPage 6 of 15\n10. Representations\nWithout limiting my obligations under Section 3.E above, I agree to execute any proper oath or verify any proper document\nrequired to carry out the terms of this greement. I represent and warrant that my performance of all the terms of this Agreement will\nnot breach any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment by the\nCompany. I hereby represent and warrant that I have not entered into, and I will not enter into, any oral or written agreement in\nconflict herewith.\n11. Audit\nI acknowledge that I have no reasonable expectation of privacy in any computer, technology system, email, handheld device,\ntelephone, voicemail, or documents that are used to conduct the business of the Company. All information, data, and messages\ncreated, received, sent, or stored in these systems are, at all times, the property of the Company. As such, the Company has the right\nto audit and search all such items and systems, without further notice to me, to ensure that the Company is licensed to use the\nsoftware on the Company's devices in compliance with the Company's software licensing policies, to ensure compliance with the\nCompany's policies, and for any other business-related purposes in the Company's sole discretion. I understand that I am not\npermitted to add any unlicensed, unauthorized, or non-compliant applications to the Company's technology systems, including,\nwithout limitation, open source or free software not authorized by the Company, and that I shall refrain from copying unlicensed\nsoftware onto the Company's technology systems or using non-licensed software or websites. I understand that it is my responsibility\nto comply with the Company's policies governing use of the Company's documents and the internet, email, telephone, and\ntechnology systems to which I will have access in connection with my employment.\nI am aware that the Company has or may acquire software and systems that are capable of monitoring and recording all network\ntraffic to and from any computer I may use. The Company reserves the right to access, review, copy, and delete any of the\ninformation, data, or messages accessed through these systems with or without notice to me and/or in my absence. This includes, but\nis not limited to, all e-mail messages sent or received, all website visits, all chat sessions, all news group activity (including groups\nvisited, messages read, and postings by me), and all file transfers into and out of the Company's internal networks. The Company\nfurther reserves the right to retrieve previously deleted messages from e-mail or voicemail and monitor usage of the Internet,\nincluding websites visited and any information I have downloaded. In addition, the Company may review Internet and technology\nsystems activity and analyze usage patterns, and may choose to publicize this data to assure that technology systems are devoted to\nlegitimate business purposes.\nPage 7 of 15\n12. Arbitration and Equitable Relief\nA. Arbitration. IN CONSIDERATION OF MY EMPLOY MENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE\nALL EMPLOY MENT-RELATED DISPUTES, AND MY RECEIPT OF THE COMPENSATION PAY RAISES, AND OTHER\nBENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, AGREE THAT ANY AND ALL\nCONTROVERSIES, CLAIMS, OR DISPUTES WITH ANY ONE (INCLUDING THE COMPANY AND ANY EMPLOYEE\nOFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF THE COMPANY IN THEIR CAPACITY AS SUCH OR\nOTHERWISE), WHETHER BROUGHT ON AN INDIVIDUAL, GROUP, OR CLASS BASIS, ARISING OUT OF, RELATING\nTO, OR RESULTING FROM MY EMPLOY M MENT WITH THE COMPANY OR THE TERMINATION OF MY EMPLOY MENT\nWITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING\nARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN COLORADO CODE OF CIVIL PROCEDURE (THE\n"ACT"), AND PURSUANT TO COLORADO LAW. THE FEDERAL ARBITRATION ACT SHALL CONTINUE TO APPLY\nWITH FULL FORCE AND EFFECT NOTWITHSTANDING THE APPLICATION OF PROCEDURAL RULES SET FORTH IN\nTHE ACT. DISPUTES THAT I AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A\nTRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING,\nBUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS\nWITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER\nWORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND\nRETRAINING NOTIFICATION ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE COLORADO LABOR CODE,\nCLAIMS OF HARASSMENT, DISCRIMINATION, AND WRONGFUL TERMINATION, AND ANY STATUTORY OR\nCOMMON LAW CLAIMS. I FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO\nANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME.\nB. Procedure. I AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY JUDICIAL ARBITRATION &\nMEDIATION SERVICES, INC. ("JAMS"), PURSUANT TO ITS EMPLOY MENT ARBITRATION RULES & PROCEDURES\n(THE "JAMS RULES"). I AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS\nBROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR\nADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO\nANY ARBITRATION HEARING. I AGREE THAT THE ARBITRATOR SHALL ISSUE A WRITTEN DECISION ON THE\nMERITS. I ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES\nAVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS FEES AND\nCOSTS TO THE PREVAILING PARTY, EX CEPT AS PROHIBITED BY LAW. AGREE THAT THE DECREE OR AWARD\nRENDERED BY THE ARBITRATOR MAY BE ENTERED AS A FINAL AND BINDING JUDGMENT IN\nPage 8 of 15\nANY COURT HAVING JURISDICTION THEREOF. I UNDERSTAND THAT THE COMPANY WILL PAY FOR ANY\nADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR OR JAMS EXCEPT THAT I SHALL PAY ANY\nFILING FEES ASSOCIATED WITH ANY ARBITRATION THAT I INITIATE, BUT ONLY SO MUCH OF THE FILING FEES\nAS WOULD HAVE INSTEAD PAID HAD I FILED A COMPLAINT IN A COURT OF LAW. AGREE THAT THE\nARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH COLORADO LAW,\nINCLUDING THE COLORADO CODE OF CIVIL PROCEDURE, AND THAT THE ARBITRATOR SHALL APPLY\nSUBSTANTIV AND PROCEDURAL COLORADO LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO\nRULES OF CONFLICT OF LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH COLORADO LAW,\nCOLORADO LAW SHALL TAKE PRECEDENCE. I AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT\nSHALL BE CONDUCTED IN COLORADO.\nC. Remedy. EXCEPT AS PROVIDED BY THE ACT AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE,\nEXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN ME AND THE COMPANY. ACCORDINGLY, EXCEPT\nAS PROVIDED FOR BY THE ACT AND THIS AGREEMENT, NEITHER I NOR THE COMPANY WILL BE PERMITTED TO\nPURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.\nD. Administrative Relief. I UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING\nAN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT\nAGENCY THAT IS AUTHORIZED TO ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOY MENT, INCLUDING,\nBUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOY MENT AND HOUSING THE EQUAL EMPLOY MENT\nOPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS' COMPENSATION\nBOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE ME FROM PURSUING COURT ACTION REGARDING ANY\nSUCH CLAIM, EXCEPT AS PERMITTED BY LAW.\nE. Voluntary Nature of Agreement. I ACKNOWLEDGE AND AGREE THAT I AM EXECUTING THIS A GREEMENT\nVOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY THE COMPANY OR ANY ONE ELSE. I\nFURTHER ACKNOWLEDGE AND AGREE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND THAT I HAVE\nASKED ANY QUESTIONS NEEDED FOR ME TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT\nOF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY RIGHT TO A JURY\nTRIAL. FINALLY, I AGREE THAT I HAVE BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN\nATTORNEY OF MY CHOICE BEFORE SIGNING THIS AGREEMENT.\nPage 9 of 15\n13. Miscellaneous\nA. Governing Law; Consent to Personal J urisdiction This A greement will be governed by the laws of the State of Colorado\nwithout regard to Colorado's conflicts of law rules that may result in the application of the laws of any jurisdiction other than\nColorado. To the extent that any lawsuit is permitted under this A greement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Colorado for any lawsuit filed against me by the Company.\nB. Assignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of the Company, its successors, and its assigns. There are no intended third-party\nbeneficiaries to this A greement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, Clovis\nOncology, Inc. may assign this A greement and its rights and obligations under this A greement to any successor to all or substantially\nall of Clovis Oncology, Inc.'s relevant assets, whether by merger, consolidation, reorganization, reincorporation, sale of assets or\nstock, or otherwise.\nC. Entire Agreement. This A greement, together with the Exhibits herein and any executed written offer letter between me and\nthe Company, to the extent such materials are not in conflict with this A greement, sets forth the entire agreement and understanding\nbetween the Company and me with respect to the subject matter herein and supersedes all prior written and oral agreements,\ndiscussions, or representations between us, including, but not limited to, any representations made during my interview(s) or\nrelocation negotiations. I represent and warrant that I am not relying on any statement or representation not contained in this\ngreement. Any subsequent change or changes in my duties, salary, or compensation will not affect the validity or scope of this\nAgreement\nD. Headings. Headings are used in this A greement for reference only and shall not be considered when interpreting this\nA greement.\nE. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of this\nA greement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so\nas to effect the intent of the Parties, and the remainder of this A greement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this A greement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by the President or CEO of Clovis Oncology, Inc. and me. Waiver by Clovis\nOncology, Inc. of a breach of any provision of this A greement will not operate as a waiver of any other or subsequent breach.\nPage 10 of 15\nG. Survivorship. The rights and obligations of the parties to this A greement will survive termination of my employment with\nthe Company.\nDate: 5/12/09\n/s/ Patrick J. Mahaffy\nS1gnature\nPatrick J. Mahaffy\nName of Employee (typed or printed)\nWitness:\nS1gnature\nName (typed or printed)\nPage 11 of 15\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nIdentifying Number or Brief\nTitle\nDate\nDescription\nNo inventions or improvements\nAdditional Sheets Attached\nDate: 5/12/09\nPatrick J. Mahaffy\nS1gnature\nPatrick J. Mahaffy\nName of Employee (typed or printed)\nPage 12 of 15\nEXHIBIT B\nCLOVIS ONCOLOGY, INC. TERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports,\nproposals, lists, correspondence, specifications drawings, blueprints, sketches, materials, equipment, any other documents or\nproperty, or reproductions of any and all aforementioned items belonging to Clovis Oncology, Inc., its subsidiaries, affiliates,\nsuccessors or assigns (together, the "Company").\nI further certify that I have complied with all the terms of the Company's Will Employment Confidential Information,\nInvention A ssignment, and A rbitration A greement signed by me, including the reporting of any inventions and original works of\nauthorship (as defined therein) conceived or made by me (solely or jointly with others), as covered by that agreement\nI further agree that, in compliance with the At-Will Employment, Confidential Information, Invention A ssignment, and\nArbitration A greement, I will preserve as confidential all Company Confidential Information and A ssociated Third Party Confidential\nInformation, including trade secrets, confidential knowledge, data, or other proprietary information relating to products, processes,\nknow-how, designs, formulas, developmental or experimental work, computer programs, databases, other original works of\nauthorship, customer lists, business plans, financial information, or other subject matter pertaining to any business of the Company or\nany of its employees, clients, consultants, or licensees.\nI also agree that for twelve (12) months from this date, I will not directly or indirectly solicit any of the Company's employees to\nleave their employment at the Company. I agree that nothing in this paragraph shall affect my continuing obligations under the\nAt-Will Employment, Confidential Information, Invention A ssignment, and Arbitration A greement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2 (Confidentiality) thereof.\nfter leaving the Company's employment, I will be employed by\nin the position of\nDate:\nSignature\nName Of Employee Ttyped or printed)\nAddress for Notifications:\nPage 13 of 15\nEXHIBIT C\nCLOVIS ONCOLOGY, INC. CONFLICT OF INTEREST GUIDELINES\nIt is the policy of Clovis Oncology, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere\nto the highest principles of business ethics. Accordingly, all officers, employees, and independent contractors must avoid activities\nthat are in conflict, or give the appearance of being in conflict with these principles and with the interests of the Company. The\nfollowing are potentially compromising situations that must be avoided:\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information\nis\na violation of this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will\nEmployment, Confidentia Information, Invention A ssignment, and A rbitration A greement elaborates on this principle and is a\nbinding agreement.)\n2. A ccepting or offering substantial gifts, excessive entertainment, favors, or payments that may be deemed to constitute undue\ninfluence or otherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidentia information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family\nrelationship or is or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6.\nInvesting or holding outside directorship in suppliers, customers, or competing companies, including financial speculations,\nwhere such investment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers, or suppliers.\n8. A cquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent\nemployer or other person or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales, or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\nPage 14 of 15\n12. Improperly using or authorizing the use of any inventions that are the subject of patent claims of any other person or entity\n13. Engaging in any conduct that is not in the best interest of the Company.\nEach officer, employee, and independent contractor must take every necessary action to ensure compliance with these guidelines\nand to bring problem areas to the attention of higher management for review. Violations of this conflict of interest policy may result\nin discharge without warning.\nPage 15 of 15	Exhibit 10.8\nCLOVIS ONCOLOGY, INC.\nAT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT, AND ARBITRATION AGREEMENT\nAs a condition of my employment with Clovis Oncology, Inc., its subsidiaries, affiliates, successors or assigns (together, the\n“Company”), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid\nto me by Company, I agree to the following provisions of this Clovis Oncology, Inc. At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement (this “Agreement”):\n1. At-Will Employment\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR NO SPECIFIED\nTERM AND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE\nCONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS IN WRITING AND SIGNED BY THE PRESIDENT OR CEO\nOF CLOVIS ONCOLOGY, INC.. ACCORDINGLY, I ACKNOWLEDGE THAT MY EMPLOYMENT RELATIONSHIP MAY BE\nTERMINATED AT ANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT MY OPTION OR AT\nTHE OPTION OF THE COMPANY, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY\nMAY MODIFY JOB TITLES, SALARIES, AND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY.\n2. Confidentiality\nA. Definition of Confidential Information. I understand that “Company Confidential Information” means information that\nthe Company has or will develop, acquire, create, compile, discover or own, that has value in or to the Company’s business which is\nnot generally known and which the Company wishes to maintain as confidential. Company Confidential Information includes both\ninformation disclosed by the Company to me, and information developed or learned by me during the course of my employment with\nCompany. Company Confidential Information also includes all information of which the unauthorized disclosure could be\ndetrimental to the interests of Company, whether or not such information is identified as Company Confidential Information. By\nexample, and without limitation, Company Confidential Information includes any and all non-public information that relates to the\nactual or anticipated business and/or products, research or development of the Company, or to the Company’s technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company’s products\nor services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on which I\ncalled or with which I may become acquainted during the term of my employment), software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business\ninformation disclosed by the Company either directly or indirectly in writing, orally or\nby drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Company\nConfidential Information shall not include any such information which I can establish (i) was publicly known or made generally\navailable prior to the time of disclosure by Company to me; (ii) becomes publicly known or made generally available after disclosure\nby Company to me through no wrongful action or omission by me; or (iii) is in my rightful possession, without confidentiality\nobligations, at the time of disclosure by Company as shown by my then-contemporaneous written records. I understand that nothing\nin this Agreement is intended to limit employees’ rights to discuss the terms, wages, and working conditions of their employment, as\nprotected by applicable law.\nB. Nonuse and Nondisclosure. I agree that during and after my employment with the Company, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Company Confidential Information,\nand I will not (i) use the Company Confidential Information for any purpose whatsoever other than for the benefit of the Company in\nthe course of my employment, or (ii) disclose the Company Confidential Information to any third party without the prior written\nauthorization of the President, CEO, or the Board of Directors of the Company. Prior to disclosure when compelled by applicable\nlaw, I shall provide prior written notice to the President, CEO, and General Counsel of Clovis Oncology, Inc. (as applicable). I agree\nthat I obtain no title to any Company Confidential Information, and that as between Company and myself, Clovis Oncology, Inc.\nretains all Confidential Information as the sole property of Clovis Oncology, Inc.. I understand that my unauthorized use or disclosure\nof Company Confidential Information during my employment may lead to disciplinary action, up to and including immediate\ntermination and legal action by the Company. I understand that my obligations under this Section 2.B shall continue after termination\nof my employment.\nC. Former Employer Confidential Information. I agree that during my employment with the Company, I will not improperly\nuse, disclose, or induce the Company to use any proprietary information or trade secrets of any former employer or other person or\nentity with which I have an obligation to keep in confidence. I further agree that I will not bring onto the Company’s premises or\ntransfer onto the Company’s technology systems any unpublished document, proprietary information, or trade secrets belonging to\nany such third party unless disclosure to, and use by, the Company has been consented to in writing by such third party.\nD. Third Party Information. I recognize that the Company has received and in the future will receive from third parties\nassociated with the Company, e.g ., the Company’s customers, suppliers, licensors, licensees, partners, or collaborators (“Associated\nThird Parties”), their confidential or proprietary information (“Associated Third Party Confidential Information”) subject to a\nduty on the Company’s part to maintain the confidentiality of such Associated Third Party Confidential Information and to use it only\nfor certain limited purposes. By way of example, Associated Third Party Confidential Information may include the habits or practices\nof Associated Third Parties, the technology of Associated Third Parties, requirements\nPage2of15\nof Associated Third Parties, and information related to the business conducted between the Company and such Associated Third\nParties. I agree at all times during my employment with the Company and thereafter, that I owe the Company and its Associated\nThird Parties a duty to hold all such Associated Third Party Confidential Information in the strictest confidence, and not to use it or to\ndisclose it to any person, firm, corporation, or other third party except as necessary in carrying out my work for the Company\nconsistent with the Company’s agreement with such Associated Third Parties. I further agree to comply with any and all Company\npolicies and guidelines that may be adopted from time to time regarding Associated Third Parties and Associated Third Party\nConfidential Information. I understand that my unauthorized use or disclosure of Associated Third Party Confidential Information or\nviolation of any Company policies during my employment may lead to disciplinary action, up to and including immediate termination\nand legal action by the Company.\n3. Ownership\nA. Assignment of Inventions. As between Company and myself, I agree that all right, title, and interest in and to any and\ncopyrightable material, notes, records, drawings, designs, inventions, improvements, ideas, developments, discoveries, processes, and\ntrade secrets conceived, discovered, authored, invented, developed or reduced to practice by me, solely or in collaboration with\nothers, during the period of time I am in the employ of the Company (including during my off-duty hours), or with the use of\nCompany’s equipment, supplies, facilities, or Company Confidential Information, and any copyrights, patents, trade secrets, mask\nwork rights or other intellectual property rights relating to the foregoing, except as provided in Section 3.G below (collectively,\n“Inventions”), are the sole property of Clovis Oncology, Inc. I also agree to promptly make full written disclosure to Clovis\nOncology, Inc. of any Inventions, and to deliver and assign and hereby irrevocably assign fully to Clovis Oncology, Inc. all of my\nright, title and interest in and to Inventions. I agree that this assignment includes a present conveyance to Clovis Oncology, Inc. of\nownership of Inventions that are not yet in existence. I further acknowledge that all original works of authorship that are made by me\n(solely or jointly with others) within the scope of and during the period of my employment with the Company and that are protectable\nby copyright are “works made for hire,” as that term is defined in the United States Copyright Act. I understand and agree that the\ndecision whether or not to commercialize or market any Inventions is within the Company’s sole discretion and for the Company’s\nsole benefit, and that no royalty or other consideration will be due to me as a result of the Company’s efforts to commercialize or\nmarket any such Inventions.\nB. Pre-Existing Materials. I have attached hereto as Exhibit A, a list describing all inventions, discoveries, original works of\nauthorship, developments, improvements, trade secrets and other proprietary information or intellectual property rights owned by me\nor in which I have an interest prior to, or separate from, my employment with the Company and which relate to the Company’s\nproposed business, products, or research and development (“Prior Inventions”); or, if no such list is attached, I represent and warrant\nthat there are no such Prior Inventions. Furthermore, I represent and warrant that if any Prior Inventions are included on\nPage3of15\nExhibit A, they will not materially affect my ability to perform all obligations under this Agreement. I will inform Clovis Oncology,\nInc. in writing before incorporating such Prior Inventions into any Invention or otherwise utilizing such Prior Invention in the course\nof my employment with the Company, and the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable,\ntransferable worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell,\nreproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions,\nwithout restriction, including, without limitation, as part of or in connection with such Invention, and to practice any method related\nthereto. I will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary\ninformation owned by any third party into any Invention without Clovis Oncology, Inc.’s prior written permission.\nC. Moral Rights. Any assignment to Clovis Oncology, Inc. of Inventions includes all rights of attribution, paternity, integrity,\nmodification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral\nrights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned\nunder applicable law, I hereby waive and agree not to enforce any and all Moral Rights, including, without limitation, any limitation\non subsequent modification, to the extent permitted under applicable law.\nD. Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all\nInventions made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in\nthe form of notes, sketches, drawings, electronic files, reports, or any other format that may be specified by the Company. As\nbetween Company and myself, the records are and will be available to and remain the sole property of Clovis Oncology, Inc. at all\ntimes.\nE. Further Assurances. I agree to assist the Company, or its designee, at the Company’s expense, in every proper way to secure\nthe Company’s rights in the Inventions in any and all countries, including the disclosure to the Company of all pertinent information\nand data with respect thereto, the execution of all applications, specifications, oaths, assignments, and all other instruments that the\nCompany shall deem proper or necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in\norder to deliver, assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title, and\ninterest in and to all Inventions, and testifying in a suit or other proceeding relating to such Inventions. I further agree that my\nobligations under this Section 3.E shall continue after the termination of this Agreement.\nF. Attorney-in-Fact. I agree that, if the Company is unable because of my unavailability, mental or physical incapacity, or for\nany other reason to secure my signature with respect to any Inventions, including, without limitation, for the purpose of applying for\nor pursuing any application for any United States or foreign patents or mask work or copyright registrations covering the Inventions\nassigned to Clovis Oncology, Inc. in Section 3.A, then I\nPage4of15\nhereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact,\nto act for and on my behalf to execute and file any papers and oaths, and to do all other lawfully permitted acts with respect to such\nInventions to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and\neffect as if executed by me. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable.\nG. Exception to Assignments. I UNDERSTAND THAT THE PROVISIONS OF THIS AGREEMENT REQUIRING\nASSIGNMENT OF INVENTIONS TO CLOVIS ONCOLOGY, INC. DO NOT APPLY TO ANY INVENTION THAT QUALIFIES\nFULLY UNDER THE PROVISIONS OF THE COLORADO LABOR CODE. I WILL ADVISE CLOVIS ONCOLOGY, INC.\nPROMPTLY IN WRITING OF ANY INVENTIONS THAT I BELIEVE MEET THE CRITERIA IN THE COLORADO LABOR\nCODE AND ARE NOT OTHERWISE DISCLOSED ON EXHIBIT A.\n4. Conflicting Obligations\nA. Current Obligations. I agree that during the term of my employment with the Company, I will not engage in or undertake\nany other employment, occupation, consulting relationship, or commitment that is directly related to the business in which the\nCompany is now involved or becomes involved or has plans to become involved, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\nB. Prior Relationships. Without limiting Section 4.A, I represent and warrant that I have no other agreements, relationships, or\ncommitments to any other person or entity that conflict with the provisions of this Agreement, my obligations to the Company under\nthis Agreement, or my ability to become employed and perform the services for which I am being hired by the Company. I further\nagree that if I have signed a confidentiality agreement or similar type of agreement with any former employer or other entity, I will\ncomply with the terms of any such agreement to the extent that its terms are lawful under applicable law. I represent and warrant that\nafter undertaking a careful search (including searches of my computers, cell phones, electronic devices, and documents), I have\nreturned all property and confidential information belonging to all prior employers (and/or other third parties I have performed\nservices for in accordance with the terms of my applicable agreement). Moreover, I agree to fully indemnify the Company, its\ndirectors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from\nmy breach of my obligations under any agreement with a third party to which I am a party or obligation to which I am bound, as well\nas any reasonable attorneys’ fees and costs if the plaintiff is the prevailing party in such an action, except as prohibited by law.\nPage5of15\n5. Return of Company Materials\nUpon separation from employment with the Company, on Company’s earlier request during my employment, or at any time\nsubsequent to my employment upon demand from the Company, I will immediately deliver to Clovis Oncology, Inc., and will not\nkeep in my possession, recreate, or deliver to anyone else, any and all Company property, including, but not limited to, Company\nConfidential Information, Associated Third Party Confidential Information, all devices and equipment belonging to the Company\n(including computers, handheld electronic devices, telephone equipment, and other electronic devices), all tangible embodiments of\nthe Inventions, all electronically stored information and passwords to access such property, Company credit cards, records, data,\nnotes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials,\nphotographs, charts, any other documents and property, and reproductions of any of the foregoing items, including, without\nlimitation, those records maintained pursuant to Section 3.D. I also consent to an exit interview to confirm my compliance with this\nArticle 5.\n6. Termination Certification\nUpon separation from employment with the Company, I agree to immediately sign and deliver to the Company the “Termination\nCertification” attached hereto as Exhibit B. I also agree to keep Clovis Oncology, Inc. advised of my home and business address for a\nperiod of three (3) years after termination of my employment with the Company, so that the Company can contact me regarding my\ncontinuing obligations provided by this Agreement.\n7. Notification of New Employer\nIn the event that I leave the employ of the Company, I hereby grant consent to notification by the Company to my new employer\nabout my obligations under this Agreement.\n8. Solicitation of Employees\nTo the fullest extent permitted under applicable law, I agree that during my employment and for a period of twelve (12) months\nimmediately following the termination of my relationship with the Company for any reason, whether voluntary or involuntary, with\nor without cause, I will not directly or indirectly solicit any of the Company’s employees to leave their employment at the Company.\nI agree that nothing in this Article 8 shall affect my continuing obligations under this Agreement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2.\n9. Conflict of Interest Guidelines\nI agree to diligently adhere to all policies of the Company, including the Company’s insider trading policies and the Company’s\nConflict of Interest Guidelines. A copy of the Company’s current Conflict of Interest Guidelines is attached as Exhibit C hereto, but I\nunderstand that these Conflict of Interest Guidelines may be revised from time to time during my employment.\nPage6of15\n10. Representations\nWithout limiting my obligations under Section 3.E above, I agree to execute any proper oath or verify any proper document\nrequired to carry out the terms of this Agreement. I represent and warrant that my performance of all the terms of this Agreement will\nnot breach any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment by the\nCompany. I hereby represent and warrant that I have not entered into, and I will not enter into, any oral or written agreement in\nconflict herewith.\n11. Audit\nI acknowledge that I have no reasonable expectation of privacy in any computer, technology system, email, handheld device,\ntelephone, voicemail, or documents that are used to conduct the business of the Company. All information, data, and messages\ncreated, received, sent, or stored in these systems are, at all times, the property of the Company. As such, the Company has the right\nto audit and search all such items and systems, without further notice to me, to ensure that the Company is licensed to use the\nsoftware on the Company’s devices in compliance with the Company’s software licensing policies, to ensure compliance with the\nCompany’s policies, and for any other business-related purposes in the Company’s sole discretion. I understand that I am not\npermitted to add any unlicensed, unauthorized, or non-compliant applications to the Company’s technology systems, including,\nwithout limitation, open source or free software not authorized by the Company, and that I shall refrain from copying unlicensed\nsoftware onto the Company’s technology systems or using non-licensed software or websites. I understand that it is my responsibility\nto comply with the Company’s policies governing use of the Company’s documents and the internet, email, telephone, and\ntechnology systems to which I will have access in connection with my employment.\nI am aware that the Company has or may acquire software and systems that are capable of monitoring and recording all network\ntraffic to and from any computer I may use. The Company reserves the right to access, review, copy, and delete any of the\ninformation, data, or messages accessed through these systems with or without notice to me and/or in my absence. This includes, but\nis not limited to, all e-mail messages sent or received, all website visits, all chat sessions, all news group activity (including groups\nvisited, messages read, and postings by me), and all file transfers into and out of the Company’s internal networks. The Company\nfurther reserves the right to retrieve previously deleted messages from e-mail or voicemail and monitor usage of the Internet,\nincluding websites visited and any information I have downloaded. In addition, the Company may review Internet and technology\nsystems activity and analyze usage patterns, and may choose to publicize this data to assure that technology systems are devoted to\nlegitimate business purposes.\nPage7of15\n12. Arbitration and Equitable Relief\nA. Arbitration. IN CONSIDERATION OF MY EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE\nALL EMPLOYMENT-RELATED DISPUTES, AND MY RECEIPT OF THE COMPENSATION, PAY RAISES, AND OTHER\nBENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, I AGREE THAT ANY AND ALL\nCONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE,\nOFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF THE COMPANY, IN THEIR CAPACITY AS SUCH OR\nOTHERWISE), WHETHER BROUGHT ON AN INDIVIDUAL, GROUP, OR CLASS BASIS, ARISING OUT OF, RELATING\nTO, OR RESULTING FROM MY EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF MY EMPLOYMENT\nWITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING\nARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN COLORADO CODE OF CIVIL PROCEDURE (THE\n“ACT”), AND PURSUANT TO COLORADO LAW. THE FEDERAL ARBITRATION ACT SHALL CONTINUE TO APPLY\nWITH FULL FORCE AND EFFECT NOTWITHSTANDING THE APPLICATION OF PROCEDURAL RULES SET FORTH IN\nTHE ACT. DISPUTES THAT I AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A\nTRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING,\nBUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS\nWITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER\nWORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND\nRETRAINING NOTIFICATION ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE COLORADO LABOR CODE,\nCLAIMS OF HARASSMENT, DISCRIMINATION, AND WRONGFUL TERMINATION, AND ANY STATUTORY OR\nCOMMON LAW CLAIMS. I FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO\nANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME.\nB. Procedure. I AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY JUDICIAL ARBITRATION &\nMEDIATION SERVICES, INC. (“JAMS”), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES\n(THE “JAMS RULES”). I AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS\nBROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR\nADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO\nANY ARBITRATION HEARING. I AGREE THAT THE ARBITRATOR SHALL ISSUE A WRITTEN DECISION ON THE\nMERITS. I ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES\nAVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND\nCOSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. I AGREE THAT THE DECREE OR AWARD\nRENDERED BY THE ARBITRATOR MAY BE ENTERED AS A FINAL AND BINDING JUDGMENT IN\nPage8of15\nANY COURT HAVING JURISDICTION THEREOF. I UNDERSTAND THAT THE COMPANY WILL PAY FOR ANY\nADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR OR JAMS EXCEPT THAT I SHALL PAY ANY\nFILING FEES ASSOCIATED WITH ANY ARBITRATION THAT I INITIATE, BUT ONLY SO MUCH OF THE FILING FEES\nAS I WOULD HAVE INSTEAD PAID HAD I FILED A COMPLAINT IN A COURT OF LAW. I AGREE THAT THE\nARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH COLORADO LAW,\nINCLUDING THE COLORADO CODE OF CIVIL PROCEDURE, AND THAT THE ARBITRATOR SHALL APPLY\nSUBSTANTIVE AND PROCEDURAL COLORADO LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO\nRULES OF CONFLICT OF LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH COLORADO LAW,\nCOLORADO LAW SHALL TAKE PRECEDENCE. I AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT\nSHALL BE CONDUCTED IN COLORADO.\nC. Remedy. EXCEPT AS PROVIDED BY THE ACT AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE,\nEXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN ME AND THE COMPANY. ACCORDINGLY, EXCEPT\nAS PROVIDED FOR BY THE ACT AND THIS AGREEMENT, NEITHER I NOR THE COMPANY WILL BE PERMITTED TO\nPURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.\nD. Administrative Relief. I UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING\nAN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT\nAGENCY THAT IS AUTHORIZED TO ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOYMENT, INCLUDING,\nBUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT\nOPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS’ COMPENSATION\nBOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE ME FROM PURSUING COURT ACTION REGARDING ANY\nSUCH CLAIM, EXCEPT AS PERMITTED BY LAW.\nE. Voluntary Nature of Agreement. I ACKNOWLEDGE AND AGREE THAT I AM EXECUTING THIS AGREEMENT\nVOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY THE COMPANY OR ANYONE ELSE. I\nFURTHER ACKNOWLEDGE AND AGREE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND THAT I HAVE\nASKED ANY QUESTIONS NEEDED FOR ME TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT\nOF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY RIGHT TO A JURY\nTRIAL. FINALLY, I AGREE THAT I HAVE BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN\nATTORNEY OF MY CHOICE BEFORE SIGNING THIS AGREEMENT.\nPage9of15\n13. Miscellaneous\nA. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of Colorado\nwithout regard to Colorado’s conflicts of law rules that may result in the application of the laws of any jurisdiction other than\nColorado. To the extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Colorado for any lawsuit filed against me by the Company.\nB. Assignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of the Company, its successors, and its assigns. There are no intended third-party\nbeneficiaries to this Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, Clovis\nOncology, Inc. may assign this Agreement and its rights and obligations under this Agreement to any successor to all or substantially\nall of Clovis Oncology, Inc.’s relevant assets, whether by merger, consolidation, reorganization, reincorporation, sale of assets or\nstock, or otherwise.\nC. Entire Agreement. This Agreement, together with the Exhibits herein and any executed written offer letter between me and\nthe Company, to the extent such materials are not in conflict with this Agreement, sets forth the entire agreement and understanding\nbetween the Company and me with respect to the subject matter herein and supersedes all prior written and oral agreements,\ndiscussions, or representations between us, including, but not limited to, any representations made during my interview(s) or\nrelocation negotiations. I represent and warrant that I am not relying on any statement or representation not contained in this\nAgreement. Any subsequent change or changes in my duties, salary, or compensation will not affect the validity or scope of this\nAgreement.\nD. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nAgreement.\nE. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of this\nAgreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so\nas to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by the President or CEO of Clovis Oncology, Inc. and me. Waiver by Clovis\nOncology, Inc. of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach.\nPage 10 of 15\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with\nthe Company.\nDate: 5/12/09\n/s/ Patrick J. Mahaffy\nSignature\nPatrick J. Mahaffy\nName of Employee (typed or printed)\nWitness:\nSignature\nName (typed or printed)\nPage 11 of 15\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nIdentifying Number or Brief\nTitle\nDate\nDescription\n___\nNo inventions or improvements\n___\nAdditional Sheets Attached\nDate: 5/12/09\nPatrick J. Mahaffy\nSignature\nPatrick J. Mahaffy\nName of Employee (typed or printed)\nPage 12 of 15\nEXHIBIT B\nCLOVIS ONCOLOGY, INC. TERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports,\nproposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, any other documents or\nproperty, or reproductions of any and all aforementioned items belonging to Clovis Oncology, Inc., its subsidiaries, affiliates,\nsuccessors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of\nauthorship (as defined therein) conceived or made by me (solely or jointly with others), as covered by that agreement.\nI further agree that, in compliance with the At-Will Employment, Confidential Information, Invention Assignment, and\nArbitration Agreement, I will preserve as confidential all Company Confidential Information and Associated Third Party Confidential\nInformation, including trade secrets, confidential knowledge, data, or other proprietary information relating to products, processes,\nknow-how, designs, formulas, developmental or experimental work, computer programs, databases, other original works of\nauthorship, customer lists, business plans, financial information, or other subject matter pertaining to any business of the Company or\nany of its employees, clients, consultants, or licensees.\nI also agree that for twelve (12) months from this date, I will not directly or indirectly solicit any of the Company’s employees to\nleave their employment at the Company. I agree that nothing in this paragraph shall affect my continuing obligations under the\nAt-Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2 (Confidentiality) thereof.\nAfter leaving the Company’s employment, I will be employed by __________________________________________________\nin the position of ____________________________________________________________________.\nDate:\nSignature\nName of Employee (typed or printed)\nAddress for Notifications:\nPage 13 of 15\nEXHIBIT C\nCLOVIS ONCOLOGY, INC. CONFLICT OF INTEREST GUIDELINES\nIt is the policy of Clovis Oncology, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere\nto the highest principles of business ethics. Accordingly, all officers, employees, and independent contractors must avoid activities\nthat are in conflict, or give the appearance of being in conflict, with these principles and with the interests of the Company. The\nfollowing are potentially compromising situations that must be avoided:\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is\na violation of this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will\nEmployment, Confidential Information, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a\nbinding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors, or payments that may be deemed to constitute undue\ninfluence or otherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family\nrelationship or is or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations,\nwhere such investment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers, or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent\nemployer or other person or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales, or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\nPage 14 of 15\n12. Improperly using or authorizing the use of any inventions that are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct that is not in the best interest of the Company.\nEach officer, employee, and independent contractor must take every necessary action to ensure compliance with these guidelines\nand to bring problem areas to the attention of higher management for review. Violations of this conflict of interest policy may result\nin discharge without warning.\nPage 15 of 15
0f446b4ed10d8d40824270d746511cca.pdf	jurisdiction party	EXHIBIT 10.9\nNON-COMPETITION AND NON -DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the “Agreement”), is entered into as of the day of\n, 2013, by and between Ameris Bancorp, a Georgia corporation (“Ameris”), and Shirley P. Fiano, an individual resident\nof the State of Florida (“Executive”).\nRECITALS\nWHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of May 1, 2013 (the “Merger Agreement”) by and between Ameris and The Prosperity Banking Company, a Florida corporation (“Prosperity”), Prosperity will\nmerge with and into Ameris (the “Merger”), as a result of which Prosperity Bank, a Florida state-chartered bank and wholly owned subsidiary of Prosperity (“Prosperity Bank”), will become a wholly owned subsidiary of Ameris that is to\nbe subsequently merged with and into Ameris Bank, a Georgia state-chartered bank and wholly owned subsidiary of Ameris (“Ameris Bank”);\nWHEREAS, Executive is a shareholder of Prosperity and, as a result of the Merger and pursuant to the transactions contemplated by the Merger Agreement, Executive is expected to receive significant consideration in exchange for the\nshares of Prosperity Common Stock (as defined in the Merger Agreement) held by Executive;\nWHEREAS, prior to the date hereof, Executive has served as Executive Vice President/Chief Banking Officer of Prosperity Bank and has been responsible for the management of the business and affairs of Prosperity and its subsidiaries,\nincluding Prosperity Bank, and, therefore, Executive has knowledge of the Confidential Information and Trade Secrets (each as hereinafter defined); and\nWHEREAS, as a result of the Merger, Ameris will succeed to all of the Confidential Information and Trade Secrets, for which Ameris, as of the Effective Time (as defined in the Merger Agreement), will have paid valuable consideration\nand desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that Executive enter into this Agreement;\nNOW, THEREFORE, in consideration of these premises and the mutual covenants and undertakings herein contained, Ameris and Executive, each intending to be legally bound, covenant and agree as follows:\n1. Restrictive Covenants.\n(a) Executive acknowledges that (i) Ameris has separately bargained and paid additional consideration for the restrictive covenants in this Agreement; and (ii) the types and periods of restrictions imposed by the covenants in this\nAgreement are fair and reasonable to Executive and such restrictions will not prevent Executive from earning a livelihood.\n(b) Having acknowledged the foregoing, Executive covenants and agrees with Ameris as follows:\n(i) From and after the Effective Time, Executive will not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose.\n(ii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), on Executive’s own behalf or in the service or on behalf of others, solicit or attempt to solicit\nany customer of Ameris, Ameris Bank, Prosperity or Prosperity Bank (each a “Protected Party”), including actively sought prospective customers of any Protected Party, with whom Executive had Material Contact (as defined below)\nduring Executive’s employment with any Protected Party, for the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any Protected Party.\n(iii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), either directly or indirectly, on Executive’s own behalf or in the service or on behalf of others,\nperform within the Restricted Territory (as hereinafter defined) duties and responsibilities that are the same as or substantially similar to those Executive performed for Prosperity or Prosperity Bank for any business which is the same as\nor essentially the same as the business conducted by any Protected Party.\n(iv) For a period of one (1) year after the Effective Time, Executive will not on Executive’s own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of\nany Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected Party, whether or not such employment is pursuant to a written agreement and whether or not such employment is for\na determined period or is at will, to cease working for such Protected Party.\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) “Competitive,” with respect to particular products or services, shall mean products or services that are the same as or similar to the products or services of any Protected Party.\n(ii) “Confidential Information” shall mean data and information:\n(A) relating to the business of Prosperity and its subsidiaries, including Prosperity Bank, regardless of whether the data or information constitutes a Trade Secret;\n(B) disclosed to Executive or of which Executive became aware as a consequence of Executive’s relationship with Prosperity or Prosperity Bank;\n2\n(C) having value to Prosperity and, as a result of the consummation of the transactions contemplated by the Merger Agreement, Ameris; and\n(D) not generally known to competitors of Prosperity or Ameris.\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, personnel data and similar information; provided, however, that such term shall not mean\ndata or information that (x) has been voluntarily disclosed to the public by Prosperity or Ameris, except where such public disclosure has been made by Executive without authorization from Prosperity or Ameris, (y) has been\nindependently developed and disclosed by others, or (z) has otherwise entered the public domain through lawful means.\n(iii) “Restricted Territory” shall mean the geographic territory within a fifty (50) mile radius of Prosperity’s office as of the date hereof located at 100 SouthPark Boulevard, St. Augustine, Florida 32086.\n(iv) “Trade Secret” shall mean information, without regard to form, including technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans or a list of actual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n(v) “Material Contact” shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of any Protected Party; (B) whose dealings with any Protected Party were\ncoordinated or supervised by Executive; (C) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with any Protected Party; or (D) who receives products or\nservices as authorized by any Protected Party, the sale or provision of which results or resulted in compensation, commissions or earnings for Executive within two (2) years prior to the date of the termination of Executive’s employment\nwith any Protected Party.\n(d) Executive acknowledges that irreparable loss and injury would result to Ameris upon the breach of any of the covenants contained in this Section 1 and that damages arising out of such breach would be difficult to ascertain. Executive\nhereby agrees that, in addition to all other remedies provided at law or in equity, Ameris may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other\nsecurity, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant contained in this Section 1, and shall be entitled to an equitable\n3\naccounting of all earnings, profits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined to exceed the time, geographic or other limitations permitted by applicable\nlaw, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision(s) cannot be modified to be enforceable, the provision(s) shall be severed from this Agreement to the extent\nunenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.\n2. Additional Cash Consideration. In addition to the consideration payable to Executive as a result of the Merger and pursuant to the transactions contemplated by the Merger Agreement, Ameris agrees to pay Executive the sum of\n$171,000.00 within one (1) business day following the date hereof.\n3. Notices. Any notice, consent, demand, request or other communication given to a party hereto in connection with this Agreement shall be in writing and shall be deemed to have been given to such party (x) when delivered personally to\nsuch party or (y) provided that a written acknowledgment of receipt is obtained, five (5) days after being sent by prepaid certified or registered mail or two (2) days after being sent by a nationally recognized overnight courier, to the\naddress (if any) specified below for such party (or to such other address as such party shall have specified by ten (10) days’ advance notice given in accordance with this Section 3) or (z) in the case of Ameris only, on the first business day\nafter it is sent by facsimile to the facsimile number set forth below (or to such other facsimile number as shall have specified by ten (10) days’ advance notice given in accordance with this Section 3), with a confirmatory copy sent by\ncertified or registered mail or by overnight courier in accordance with this Section 3.\nIf to Ameris:\nAmeris Bancorp\n310 First Street, S.E.\nMoultrie, Georgia 31768\nAttn: Chief Executive Officer\nFax: (229) 890-2235\nIf to Executive:\nThe address of Executive’s principal residence as it appears in Prosperity’s records as of the date\nhereof.\n4. Governing Law. The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Georgia, without giving effect to the conflicts of laws principles thereof.\n5. Modification and Waiver. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by Executive and Ameris. No waiver by either party hereto\nat any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of dissimilar provisions or conditions at the same or\nany prior subsequent time.\n6. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\n4\n7. Counterparts. This Agreement may be executed (and delivered via facsimile or other electronic transmission) in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the\nsame Agreement.\n8. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to the subject\nmatter hereof.\n9. No Right to Employment. Nothing in this Agreement shall give or be deemed to give Executive the right to employment or employment benefits with Ameris.\n10. Construction; Interpretation. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter\ngenders and vice versa. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The headings in this Agreement are for convenience\nonly and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any of its provisions.\n[Signature page follows.]\n5\nIN WITNESS WHEREOF, Executive has executed and delivered this Agreement, and Ameris has caused this Agreement to be executed and delivered, all as of the day and year first above set forth.\nAMERIS BANCORP\nBy:\nEdwin W. Hortman, Jr.\nPresident and Chief Executive Officer\nExecutive:\nSHIRLEY P. FIANO\n6	EXHIBIT 10.9\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the ”A ggement”), is entered into as of the day of , 2013, by and between Ameris Bancorp, a Georgia corporation ("Ameris"), and Shirley P. Fiano, an individual resident\nof the State of Florida (”Executive").\nRE C ITA L S\nWHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of May 1, 2013 (the ”Meger Agreement") by and between Ameris and The Prosperity Banking Company, a Florida corporation (”Prosperiy”), Prosperity will\nmerge with and into Ameris (the "Meger"), as a result of which Prosperity Bank, a Florida state-chartered bank and wholly owned subsidiary of Prosperity ("Prosperiy Bank"), will become a wholly owned subsidiary of Ameris that is to\nbe subsequently merged with and into Ameris Bank, a Georgia state-chartered bank and wholly owned subsidiary of Ameris ("Ameris Bank");\nWHEREAS, Executive is a shareholder of Prosperity and, as a result of the Merger and pursuant to the transactions contemplated by the MergerAgreement, Executive is expected to receive significant consideration in exchange for the\nshares of Prosperity Common Stock (as defined in the MergerAgreement) held by Executive;\nWHEREAS, prior to the date hereof, Executive has served as Executive Vice PresidentJChief Banking Officer of Prosperity Bank and has been responsible for the management of the business and affairs of Prosperity and its subsidiaries,\nincluding Prosperity Bank, and, therefore, Executive has knowledge of the Confidential Information and Trade Secrets (each as hereinafter defined); and\nWHEREAS, as a result of the Merger, Ameris will succeed to all of the Confidential Information and Trade Secrets, for which Ameris, as of the Effective Time (as defined in the MergerAgreement), will have paid valuable consideration\nand desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that Executive enter into this Agreement;\nNOW, THERE F0 RE, in consideration of these premises and the mutual covenants and undertakings herein contained, Ameris and Executive, each intending to be legally bound, covenant and agree as follows:\n1. Restiictive Covenants.\n(a) Executive acknowledges that (i) Ameris has separately bargained and paid additional consideration for the restrictive covenants in this Agreement; and (ii) the types and periods of restrictions imposed by the covenants in this\nAgreement are fair and reasonable to Executive and such restrictions will not prevent Executive from earning a livelihood.\n(b) Having acknowledged the foregoing, Executive covenants and agrees with Ameris as follows:\n(i) From and after the Effective Time, Executive will not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose.\n(ii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), on Executive' 5 own behalf or in the service or on behalf of others, solicit or attempt to solicit\nany customer of Ameris, Ameris Bank, Prosperity or Prosperity Bank (each a "Protected Pay”), including actively sought prospective customers of any Protected Party, with whom Executive had Material Contact (as defined below)\nduring Executive's employment with any Protected Party, for the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any Protected Party.\n(iii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), either directly or indirectly, on Executive' 5 own behalf or in the service or on behalf of others,\nperform within the Restricted Territory (as hereinafter defined) duties and responsibilities that are the same as or substantially similar to those Executive performed for Prosperity or Prosperity Bank for any business which is the same as\nor essentially the same as the business conducted by any Protected Partyr\n(iv) For a period of one (1) year after the Effective Time, Executive will not on Executive's own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of\nany Protected Party, whether or not such employee is a full-time employee or a tempomry employee of such Protected Party, whether or not such employment is pursuant to a written agreement and whether or not such employment is for\na determined period or is at will, to cease working for such Protected Party.\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) "Competitive," with respect to particular products or services, shall mean products or services that are the same as or similarto the products or services of any Protected Party.\n(ii) ”Confidential Information" shall mean data and information:\n(A) relating to the business of Prosperity and its subsidiaries, including Prosperity Bank, regardless of whether the data or information constitutes a Trade Secret;\n(B) disclosed to Executive or of which Executive became aware as a consequence of Executive's relationship with Prosperity or Prosperity Bank,-\n(C) having value to Prosperity and, as a result of the consummation of the tiansactions contemplated by the MergerAgreement, Ameris; and\n(D) not generally known to competitors of Prosperity orAmeris.\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, personnel dam and similar information,- provided, however, that such term shall not mean\ndata or information that (x) has been voluntarily disclosed to the public by Prosperity orAmeris, except where such public disclosure has been made by Executive without authorization from Prosperity orAmeris, (y) has been\nindependently developed and disclosed by others, or (2) has otherwise entered the public domain through lawful means.\n(iii) "Restricted Territog" shall mean the geographic territory within a fifty (50) mile radius of Prosperity' 5 office as of the date hereof located at 100 SouthPark Boulevard, St Augustine, Florida 32086,\n(iv) ”Trade Secret" shall mean information, without regard to form, including technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans or a list of actual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to rnainmin its secrecy,\n(v) "Material Contact" shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of any Protected Party; (B) whose dealings with any Protected Party were\ncoordinated or supervised by Executive; (C) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive' s association with any Protected Party; or (D) who receives products or\nservices as authorized by any Protected Party, the sale or provision of which results or resulted in compensation, commissions or earnings for Executive within two (2) years prior to the date of the termination of Executive's employment\nwith any Protected Party.\n(d) Executive acknowledges that irreparable loss and injury would result to Ameris upon the breach of any of the covenants contained in this Section 1 and that damages arising out of such breach would be difficult to ascertain. Executive\nhereby agrees that, in addition to all other remedies provided at law or in equity, Ameris may petition and obmin from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other\nsecurity, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant conmined in this Section 1, and shall be entitled to an equimble\n—\naccounting of all earnings, profits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined to exceed the time, geographic or other limitations permitted by applicable\nlaw, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law. If such provisionts) cannot be modified to be enforceable, the provision(s) shall be severed from this Agreement to the extent\nunenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.\n2. Additional Cash Consideration. In addition to the consideration payable to Executive as a result of the Merger and pursuant to the transactions contemplated by the MergerAgreement, Ameris agrees to pay Executive the sum of\n$171,000.00 within one (1) business day following the date hereof.\n3. m. Any notice, consent, demand, request or other communication given to a party hereto in connection with this Agreement shall be in writing and shall be deemed to have been given to such party (x) when delivered personally to\nsuch party or (y) provided that a written acknowledgment of receipt is obmined, five (5) days after being sent by prepaid certified or registered mail or two (2) days after being sent by a nationally recognized overnight courier, to the\naddress (if any) specified below for such party (or to such other address as such party shall have specified by ten (10) days' advance notice given in accordance with this Section 3) or (z) in the case of Ameris only, on the first business day\nafter it is sent by facsimile to the facsimile number set forth below (or to such other facsimile number as shall have specified by ten (10) days' advance notice given in accordance with this Section 3), with a confirmatory copy sent by\ncertified or registered mail or by overnight courier in accordance with this Section 3.\nIf to Ameris: Ameris Bancorp\n310 First Street, S.E.\nMoultrie, Georgia 31768\nAttn: Chief Executive Officer\nFax: [229) 890-2235\nIf to Executive: The address of Executive's principal residence as it appears in Prosperity' s records as of the date\nhereof.\n4. Governing Law. The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Georgia, without giving effect to the conflicts of laws principles thereof.\n5. Modification and Waiver. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by Executive and Ameris. No waiver by either party hereto\nat any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of dissimilar provisions or conditions at the same or\nany prior subsequent time.\n6. Severabilifl. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\n—\n7. Countemarts. This Agreement may be executed (and delivered via facsimile or other electronic transmission) in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the\nsame A greement.\n8. Entire A ’reement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to the subject\n \nmatter hereof.\n9. No Right to Employment Nothing in this Agreement shall give or be deemed to give Executive the right to employment or employment benefits with Ameris.\n10. Construction; Intemretationr Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter\ngenders and vice versa. Whenever the words ”include, includes” or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation.” The headings in this Agreement are for convenience\nonly and are in no way intended to describe, interpret, define or limit the scope, extent orintent of this Agreement or any of its provisions.\n[Signature page follows]\nIN WITNESS WHEREOF, Executive has executed and delivered this Agreement, and Arrreris has caused this Agreement to be executed and delivered, all as of the day and year first above set forth.\nAMERIS BANCORP\nBy:\nw1n . 0 an, r.\nPresident and Chief Executive Officer\nE xecutive:	EXHIBIT 10.9\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the 'Agreement") is entered into as of the\nday of\n2013, by and between A meris Bancorp, a Georgia corporation "Ameris"), and Shirley P. Fiano, an individual resident\nof the State of Florida ("Executive").\nRECITALS\nWHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of May 1, 2013 (the "Merger Agreement") by and between A Ameris and The Prosperity Banking Company, a Florida corporation ("Prosperity"), Prosperity will\nmerge with and into Ameris (the "Merger") as a result of which Prosperity Bank, a Florida state-chartered bank and wholly owned subsidiary of Prosperity ("Prosperity Bank"), will become a wholly owned subsidiary of Ameris that is to\nbe subsequently merged with and into Ameris Bank, a Georgia tate-chartered bank and wholly owned subsidiary of Ameris ("Ameris Bank")\nWHEREAS, Executive is a shareholder of Prosperity and, as a result of the Merger and pursuant to the transactions contemplated by the Merger Agreement, Executive is expected to receive significant consideration in exchange for the\nshares of Prosperity Common Stock (as defined in the Merger Agreement) held by Executive;\nWHEREAS, prior to the date hereof Executive has served as Executive Vice President/Chief Banking Officer of Prosperity Bank and has been responsible for the management of the business and affairs of Prosperity and its subsidiaries,\nincluding Prosperity Bank and, therefore, Executive has knowledge of the Confidential Information and Trade Secrets (each as hereinafter defined) and\nWHEREAS, as a result of the Merger, Ameris will succeed to all of the Confidential Information and Trade Secrets, for which Ameris, as of the Effective Time (as defined in the Merger Agreement), will have paid valuable consideration\nand desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that Executive enter into this Agreement;\nNOW, THEREFORE in consideration of these premises and the mutual covenants and undertakings herein contained, A meris and Executive, each intending to be legally bound, covenant and agree as follows:\n1. Restrictive Covenants\n(a) Executive acknowledges that (i) Ameris has separately bargained and paid additional consideration for the restrictive covenants in this Agreement; and (ii) the types and periods of restrictions imposed by the covenants in this\nAgreement are fair and reasonable to Executive and such restrictions will not prevent Executive from earning a livelihood.\n(b) Having acknowledged the foregoing, Executive covenants and agrees with Ameris as follows:\n(i) From and after the Effective Time, Executive will not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable for any purpose.\n(ii) For a period of one (1) year after the Effective Time Executive will not (except on behalf of or with the prior written consent of Ameris), on Executive's own behalf or in the service or on behalf of others, solicit or attempt to solicit\nany customer of Ameris, A meris Bank, Prosperity or Prosperity Bank (each a Protected Party"), including actively sought prospective customers of any Protected Party, with whom Executive had Material Contact (as defined below)\nduring Executive's employment with any Protected Party, for the purpose of providing products or services that are Competitive (as hereinafter defined with those offered or provided by any Protected Party.\n(iii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), either directly or indirectly, on Executive's own behalf or in the service or on behalf of others,\nperform within the Restricted Territory (as hereinafter defined) duties and responsibilities that are the same as or substantially similar to those Executive performed for Prosperity or Prosperity Bank for any business which is the same as\nor essentially the same as the business conducted by any Protected Party.\n(iv) For a period of one (1) year after the Effective Time, Executive will not on Executive's own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of\nany Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected Party, whether or not such employment is pursuant to a written agreement and whether or not\nsuch\nemployment\nis\nfor\na determined period or is at will, to cease working for such Protected Party.\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) "Competitive,' with respect to particular products or services, shall mean products or services that are the same as or similar to the products or services of any Protected Party.\n(ii) "Confidential Information" shall mean data and information:\n(A relating to the business of Prosperity and its subsidiaries, including Prosperity Bank, regardless of whether the data or information constitutes a Trade Secret;\n(B) disclosed to Executive or of which Executive became aware as a consequence of Executive's relationship with Prosperity or Prosperity Bank;\n2\n(C) having value to Prosperity and, as a result of the consummation of the transactions contemplated by the Merger Agreement, A meris; and\n(D not tgenerally known to competitors of Prosperity or Ameris.\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists financial information and projections, personnel data and similar information; provided however that such term shall not mean\ndata or information that (x) has been voluntarily disclosed to the public by Prosperity or Ameris, except where such public disclosure has been made by Executive without authorization from Prosperity or Ameris, (y) has been\nindependently developed and disclosed by others, or (z) has otherwise entered the public domain through lawful means.\n(iii) "Restricted Territory" shall mean the geographic territory within a fifty (50) mile radius of Prosperity's office as of the date hereof located at 100 SouthPark Boulevard, St. Augustine, Florida 32086.\n(iv) "Trade Secret" shall mean information, without regard to form, including technical or nontechnical data, a formula, a patter, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans product plans or a list of actual or potential customers or suppliers that is not commonly known by or available to the public and which information:\n(A derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n(v) "Material Contact" shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of any Protected Party (B) whose dealings with any Protected Party were\ncoordinated or supervised by Executive; (C about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive's association with any Protected Party; or (D) who receives products or\nservices as authorized by any Protected Party, the sale or provision of which results or resulted in compensation, commissions or eamings for Executive within two (2) years prior to the date of the termination of Executive's employment\nwith any Protected Party.\n(d) Executive acknowledges that irreparable loss and injury would result to Ameris upon the breach of any of the covenants contained in this Section 1 and that damages arising out of such breach would be difficult to ascertain. Executive\nhereby agrees that in addition to all other remedies provided at law or in equity Ameris may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other\nsecurity, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant contained in this Section 1, and shal be entitled to an equitable\n3\naccounting of all earnings, profits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined to exceed the time, geographic or other limitations permitted by applicable\nlaw, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law If such provision(s) cannot be modified to be enforceable the provision(s) shall be severed from this Agreement to the extent\nunenforceable The remaining provisions and any partially enforceable provisions shal remain in full force and effect\n2. dditional Cash Consideration. In addition to the consideration payable to Executive as a result of the Merger and pursuant to the transactions contemplated by the Merger Agreement, Ameris agrees to pay Executive the sum of\n$171,000.00 within one (1) business day following the date hereof.\n3. Notices Any notice, consent demand, request or other communication given to a party hereto in connection with this Agreement shall be in writing and shal be deemed to have been given to such party (x) when delivered personally to\nsuch party or (y) provided that a written acknowledgment of receipt is obtained, five (5) days after being sent by prepaid certified or registered mail or two (2) days after being sent by a nationally recognized overnight courier, to the\naddress (if any) specified below for such party (or to such other address as such party shall have specified by ten (10) days' advance notice given in accordance with this Section 3) or (z) in the case of Ameris only, on the first business day\nafter it is sent by facsimile to the facsimile number set forth below (or to such other facsimile number as shall have specified by ten (10) days advance notice given in accordance with this Section 3), with a confirmatory copy sent by\ncertified or registered mail or by overnight courier in accordance with this Section 3.\nIf to Ameris:\nAmeris Bancorp\n310 First Street S.E.\nMoultrie, Georgia 31768\nAttn: Chief Executive Officer\nFax: (229) 890-2235\nIf to Executive:\nThe address of Executive's principal residence as it appears in Prosperity's records as of the date\nhereof.\n4.\nGoverning Law The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Georgia, without giving effect to the conflicts of laws principles thereof.\n5. Modification and Waiver. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by Executive and Ameris. No waiver by either party hereto\nat any time of any breach by the other party hereto of, or compliance with, any condition or provision of this A greement to be performed by such other party shall be deemed a waiver of dissimilar provisions or conditions at the same or\nany prior subsequent time.\n6. Severability. The invalidity or unenforceability of any provisions of this A greement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect\n4\n7.\nCounterparts. This Agreement may be executed (and delivered via facsimile or other electronic transmission) in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and\nthe\nsame Agreement.\n8. Entire Agreement This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to the subject\nmatter hereof\n9 No Right to Employment Nothing in this Agreement shall give or be deemed to give Executive the right to employment or employment benefits with Ameris.\n10. Construction; Interpretation. W henever the singular number is used in this Agreement a and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter\ngenders and vice versa. W Vhenever the words "include," "includes" or "including" are used in this Agreement they shall be deemed to be followed by the words "without limitation." The headings in this Agreement are for convenience\nonly and are in no way intended to describe, interpret define or limit the scope, extent or intent of this A greement or any of its provisions.\n[Signature page follows.]\n5\nIN WITNESS WHEREOF, Executive has executed and delivered this Agreement, and Ameris has caused this Agreement to be executed and delivered, all as of the day and year first above set forth\nAMERIS BANCORP\nBy:\nEdwin W Hortman, Jr.\nPresident and Chief Executive Officer\nExecutive:\nSHIRLEY P.FIANO\n6	EXHIBIT 10.9\nNON-COMPETITION AND NON -DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the “Agreement”), is entered into as of the day of\n, 2013, by and between Ameris Bancorp, a Georgia corporation (“Ameris”), and Shirley P. Fiano, an individual resident\nof the State of Florida (“Executive”).\nRECITALS\nWHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of May 1, 2013 (the “Merger Agreement”) by and between Ameris and The Prosperity Banking Company, a Florida corporation (“Prosperity”), Prosperity will\nmerge with and into Ameris (the “Merger”), as a result of which Prosperity Bank, a Florida state-chartered bank and wholly owned subsidiary of Prosperity (“Prosperity Bank”), will become a wholly owned subsidiary of Ameris that is to\nbe subsequently merged with and into Ameris Bank, a Georgia state-chartered bank and wholly owned subsidiary of Ameris (“Ameris Bank”);\nWHEREAS, Executive is a shareholder of Prosperity and, as a result of the Merger and pursuant to the transactions contemplated by the Merger Agreement, Executive is expected to receive significant consideration in exchange for the\nshares of Prosperity Common Stock (as defined in the Merger Agreement) held by Executive;\nWHEREAS, prior to the date hereof, Executive has served as Executive Vice President/Chief Banking Officer of Prosperity Bank and has been responsible for the management of the business and affairs of Prosperity and its subsidiaries,\nincluding Prosperity Bank, and, therefore, Executive has knowledge of the Confidential Information and Trade Secrets (each as hereinafter defined); and\nWHEREAS, as a result of the Merger, Ameris will succeed to all of the Confidential Information and Trade Secrets, for which Ameris, as of the Effective Time (as defined in the Merger Agreement), will have paid valuable consideration\nand desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that Executive enter into this Agreement;\nNOW, THEREFORE, in consideration of these premises and the mutual covenants and undertakings herein contained, Ameris and Executive, each intending to be legally bound, covenant and agree as follows:\n1. Restrictive Covenants.\n(a) Executive acknowledges that (i) Ameris has separately bargained and paid additional consideration for the restrictive covenants in this Agreement; and (ii) the types and periods of restrictions imposed by the covenants in this\nAgreement are fair and reasonable to Executive and such restrictions will not prevent Executive from earning a livelihood.\n(b) Having acknowledged the foregoing, Executive covenants and agrees with Ameris as follows:\n(i) From and after the Effective Time, Executive will not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose.\n(ii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), on Executive’s own behalf or in the service or on behalf of others, solicit or attempt to solicit\nany customer of Ameris, Ameris Bank, Prosperity or Prosperity Bank (each a “Protected Party”), including actively sought prospective customers of any Protected Party, with whom Executive had Material Contact (as defined below)\nduring Executive’s employment with any Protected Party, for the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any Protected Party.\n(iii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), either directly or indirectly, on Executive’s own behalf or in the service or on behalf of others,\nperform within the Restricted Territory (as hereinafter defined) duties and responsibilities that are the same as or substantially similar to those Executive performed for Prosperity or Prosperity Bank for any business which is the same as\nor essentially the same as the business conducted by any Protected Party.\n(iv) For a period of one (1) year after the Effective Time, Executive will not on Executive’s own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of\nany Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected Party, whether or not such employment is pursuant to a written agreement and whether or not such employment is for\na determined period or is at will, to cease working for such Protected Party.\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) “Competitive,” with respect to particular products or services, shall mean products or services that are the same as or similar to the products or services of any Protected Party.\n(ii) “Confidential Information” shall mean data and information:\n(A) relating to the business of Prosperity and its subsidiaries, including Prosperity Bank, regardless of whether the data or information constitutes a Trade Secret;\n(B) disclosed to Executive or of which Executive became aware as a consequence of Executive’s relationship with Prosperity or Prosperity Bank;\n2\n(C) having value to Prosperity and, as a result of the consummation of the transactions contemplated by the Merger Agreement, Ameris; and\n(D) not generally known to competitors of Prosperity or Ameris.\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, personnel data and similar information; provided, however, that such term shall not mean\ndata or information that (x) has been voluntarily disclosed to the public by Prosperity or Ameris, except where such public disclosure has been made by Executive without authorization from Prosperity or Ameris, (y) has been\nindependently developed and disclosed by others, or (z) has otherwise entered the public domain through lawful means.\n(iii) “Restricted Territory” shall mean the geographic territory within a fifty (50) mile radius of Prosperity’s office as of the date hereof located at 100 SouthPark Boulevard, St. Augustine, Florida 32086.\n(iv) “Trade Secret” shall mean information, without regard to form, including technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans or a list of actual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n(v) “Material Contact” shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of any Protected Party; (B) whose dealings with any Protected Party were\ncoordinated or supervised by Executive; (C) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with any Protected Party; or (D) who receives products or\nservices as authorized by any Protected Party, the sale or provision of which results or resulted in compensation, commissions or earnings for Executive within two (2) years prior to the date of the termination of Executive’s employment\nwith any Protected Party.\n(d) Executive acknowledges that irreparable loss and injury would result to Ameris upon the breach of any of the covenants contained in this Section 1 and that damages arising out of such breach would be difficult to ascertain. Executive\nhereby agrees that, in addition to all other remedies provided at law or in equity, Ameris may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other\nsecurity, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant contained in this Section 1, and shall be entitled to an equitable\n3\naccounting of all earnings, profits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined to exceed the time, geographic or other limitations permitted by applicable\nlaw, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision(s) cannot be modified to be enforceable, the provision(s) shall be severed from this Agreement to the extent\nunenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.\n2. Additional Cash Consideration. In addition to the consideration payable to Executive as a result of the Merger and pursuant to the transactions contemplated by the Merger Agreement, Ameris agrees to pay Executive the sum of\n$171,000.00 within one (1) business day following the date hereof.\n3. Notices. Any notice, consent, demand, request or other communication given to a party hereto in connection with this Agreement shall be in writing and shall be deemed to have been given to such party (x) when delivered personally to\nsuch party or (y) provided that a written acknowledgment of receipt is obtained, five (5) days after being sent by prepaid certified or registered mail or two (2) days after being sent by a nationally recognized overnight courier, to the\naddress (if any) specified below for such party (or to such other address as such party shall have specified by ten (10) days’ advance notice given in accordance with this Section 3) or (z) in the case of Ameris only, on the first business day\nafter it is sent by facsimile to the facsimile number set forth below (or to such other facsimile number as shall have specified by ten (10) days’ advance notice given in accordance with this Section 3), with a confirmatory copy sent by\ncertified or registered mail or by overnight courier in accordance with this Section 3.\nIf to Ameris:\nAmeris Bancorp\n310 First Street, S.E.\nMoultrie, Georgia 31768\nAttn: Chief Executive Officer\nFax: (229) 890-2235\nIf to Executive:\nThe address of Executive’s principal residence as it appears in Prosperity’s records as of the date\nhereof.\n4. Governing Law. The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Georgia, without giving effect to the conflicts of laws principles thereof.\n5. Modification and Waiver. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by Executive and Ameris. No waiver by either party hereto\nat any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of dissimilar provisions or conditions at the same or\nany prior subsequent time.\n6. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\n4\n7. Counterparts. This Agreement may be executed (and delivered via facsimile or other electronic transmission) in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the\nsame Agreement.\n8. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to the subject\nmatter hereof.\n9. No Right to Employment. Nothing in this Agreement shall give or be deemed to give Executive the right to employment or employment benefits with Ameris.\n10. Construction; Interpretation. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter\ngenders and vice versa. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The headings in this Agreement are for convenience\nonly and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any of its provisions.\n[Signature page follows.]\n5\nIN WITNESS WHEREOF, Executive has executed and delivered this Agreement, and Ameris has caused this Agreement to be executed and delivered, all as of the day and year first above set forth.\nAMERIS BANCORP\nBy:\nEdwin W. Hortman, Jr.\nPresident and Chief Executive Officer\nExecutive:\nSHIRLEY P. FIANO\n6
1058cd8d541c0622ad959facd34235ea.pdf	effective_date jurisdiction party term	EX-10.19 5 dex1019.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.19\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT (the “Agreement”), dated as of\n, 2007, between\n(“Employee”), and Xinyuan Real Estate Co., Ltd., a limited company duly registered under the laws of the Cayman Islands\n(the “Company”).\nWHEREAS, Employee is employed by the Company pursuant to the Employment Agreement between the parties hereto, dated as of the date hereof\n(the “Employment Agreement”); and\nWHEREAS, during the Term (as defined in the Employment Agreement) Employee may become privy to certain Confidential Information (as\ndefined below) of the Company, and Employee understands that the confidentiality of such Confidential Information is extremely important to the\nCompany.\nNOW, THEREFORE, in consideration of Employee’s employment by the Company and for other good and valuable consideration, the receipt of\nwhich is hereby acknowledged, the parties hereto agree as follows:\nARTICLE 1 CONFIDENTIALITY\n1.1 Definition\n“Confidential Information” shall mean all information not generally available to the public, whether written (including, without limitation,\nelectronic) or oral and in whatever form or medium such information is embodied or transmitted, relating to the Company or any of its\nAffiliates (as defined below), or their respective personnel, equity holders, partners, investors, clients, or service providers and the nature and\noperation of their respective businesses, including without limitation information relating to (i) documents and technical information,\n(ii) operations and techniques, (iii) systems, computer code, and technologies, (iv) trade secrets, developments and inventions, (v) products,\nservices and operations, (vi) strategies, business plans and programs, (vii) financial condition, financial activities, and investments, and\n(viii) customer lists and other customer information. “Confidential Information” includes all notes, analyses or other documents or material,\nwhether prepared by Employee or otherwise, which contain or otherwise reflect such information.\n“Affiliates” means any equity holders, subsidiaries, directors, officers or any entity that, directly or indirectly through one or more\nintermediaries, controls, is controlled by, or is under common control with the Company, and, as to an individual, an immediate family\nmember or Affiliate of such family member shall be deemed to be an Affiliate of such individual.\n1.2 Confidentiality Obligation\n(1) During the term of the Employment Agreement and at any time after the termination of the Employment Agreement, the Employee shall\nabide by the confidentiality rules formulated by the Company.\n(a) Without the Company’s prior written consent, the Employee shall not, directly or indirectly (i) use any Confidential Information\nfor any purpose other than performance of his/her duties as an Employee; (ii) disclose in any form whatsoever any Confidential\nInformation to any third parties; (iii) acquire Confidential Information by any improper methods or allow third parties to do the\nsame; (iv) use or allow third parties to use any Confidential Information so acquired. For the purpose of this Agreement, “acquire\nby any improper methods” includes stealing, fraud, threat, bribery, unauthorized reproduction, breach of confidentiality\nobligations, persuasion of others to breach any confidentiality obligation or similar methods of the same nature.\n(b) The Employee is obliged to use his/her best efforts to prevent any third party from stealing any Confidential Information.\n(2) If the Company suffers any loss resulting directly or indirectly from the Employee’s breach of Section 1.2(1) hereof, the Company shall\nhave the right to impose a discipline penalty on the Employee, and the Employee shall compensate the Company for the loss according\nto the relevant provisions of the Employment Agreement and assume any other legal liabilities under PRC laws.\n(3) The obligations under Section 1.2(1) shall not apply to the following information which:\n(a)\nthe Employee can prove has entered into the public domain;\n(b) has been disclosed other than by the Employee’s breach of the provisions of this Agreement;\n(c)\nthe Employee can prove was acquired from a third party who was not subject to any confidentiality restrictions; or\n(d) was disclosed by the Employee as required by any applicable law or court order, under which circumstance, the Confidential\nInformation shall be disclosed only to the extent as expressly specified by such applicable law or court order.\n(4) The Employee understands and agrees that as may be required for the Company’s business operations and the Employee’s performance\nof his/her duties, the Employee may from time to time have access to Confidential Information owned by the Company’s subsidiaries\nand affiliates. For the purposes of this Article 1, the Company shall be deemed to include any subsidiaries or affiliates of the Company\nthat may, from time to time, become affiliated with the Company.\n(5) The Employee understands and agrees that the Company may from time to time receive confidential information of or relating to third\nparties which would require the Company to maintain in confidence. The Employee agrees to maintain in confidence for the Company\nand such third parties and in no event disclose to any party other than the Company and such third parties such confidential information.\n2\n(6) Nothing in this Agreement shall be deemed to exclude, weaken or waive any rights related to the protection of trade secrets that the\nCompany may have under PRC laws (including but not limited to the PRC Anti-Unfair Competition Law).\n1.3 Obligation to Return\n(1) Employee acknowledges that all physical manifestations of Confidential Information, including without limitation all originals and\ncopies of disks, code, programs, notes, records and documents in whatever form (including, without limitation, electronic form)\ngenerated by Employee or coming into Employee’s possession during the Term are the sole property of the Company. Upon termination\nof the Employment Agreement, or upon request of the Company at any time, Employee shall immediately deliver all copies of such\nmaterials to the Company and shall not retain any copies of any such materials in any form. Upon request of the Company, Employee\nshall certify in writing as to Employee’s compliance with this paragraph.\n(2) If the Company suffers losses from the Employee’s failure to return any of the above documents (including copies) or items to the\nCompany, the Employee shall be liable and compensate the Company for the losses. The Company may deduct an amount in respect of\nsuch losses from the last salary payment payable to the Employee, and shall have the right to take any other proper measures to protect\nits own legitimate rights and interests.\n1.4 Compelled Disclosure\nIn the event that Employee is compelled, by deposition, interrogatory, subpoena or civil investigative demand or other governmental or\nregulatory requirement, to disclose any of the Confidential Information, Employee will provide the Company with prompt notice thereof so\nthat the Company may seek an appropriate protective order or other remedy and/or waive compliance with the provisions hereof and Employee\nshall provide reasonable cooperation as may be requested by the Company in connection therewith. If such protective order or other remedy is\nnot obtained promptly, Employee may furnish that portion (and only that portion) of the Confidential Information, which, in the written\nopinion of counsel, Employee is legally required to disclose and will exercise Employee’s best efforts to obtain reliable assurance that\nconfidential treatment will be accorded any Confidential Information so furnished.\nARTICLE 2 INTELLECTUAL PROPERTY\n2.1 Definition\n“Intellectual Property Rights” shall mean all patents, trademarks, service marks, trade names, copyrights, rights in software, domain names,\nknow-how, rights in Creative Works (as defined below), licenses and other intellectual property rights, being used to conduct the business of\nthe Company and its affiliates as now operated.\n“Creative Works” shall mean, all designs, ideas, discoveries, inventions, products, computer programs, source codes, procedures,\nimprovements, documents, information, materials, drawings, specifications, reports, electronic media or other instruments made, conceived or\ndeveloped by the Employee alone or with others.\n3\n“Moral Rights” shall mean any right to claim of authorship of a work, any right to object to any distortion or other modification of a work, and\nany similar right, existing under the law of any country in the world, or under any treaty.\n2.2 Ownership of Intellectual Property Rights and Transfer of Rights\n(1) During the term of the Employment Agreement and at the termination thereof, the Employee shall promptly disclose to the Company,\nwithout additional compensation, the following, to the extent that such disclosure could reasonably be expected to be of interest to the\nCompany:\n(a)\nany Creative Works related to the Company’s business activities or to the Employee’s work with the Company;\n(b) any pricing or marketing strategies;\n(c)\nany products and services;\n(d) any other ideas or information; and\n(e)\nany Intellectual Property Rights;\nwhich are conceived, adapted, discovered, developed or improved by the Employee while employed by the Company.\n(2) The Employee undertakes and warrants that he/she will not, during the term of the Employment Agreement or at any time after the\ntermination hereof, infringe, misappropriate, acquire or use (unless acquires or uses during the performance of his/her duties as an\nemployee of the Company) any of the Company’s Intellectual Property Rights.\n(3) The Employee acknowledges and agrees that any Creative Works created by the Employee for the purpose of the Company’s business or\nprimarily using the Company’s resources during the term of the Employment Agreement are occupational creations. The right to apply\nfor patents, copyrights trademarks or other protection shall be vested in the Company, and the Company shall be the patentee or holder of\nthe copyright, trademark or other protection after any such protections granted. The Employee agrees to assist the Company in executing\nand providing any and all documents and rendering any assistance that is reasonably necessary to obtain any patent, copyright, trademark\nor other protection for the Creative Works in the PRC or any other countries. Subject to applicable laws and treaties, the Employee\nagrees to irrevocably transfer and assign to the Company any and all Moral Rights that the Employee may have in such Creative Works.\n(4) The Parties agree that during the term of the Employment Agreement, according to the Company’s arrangement, the Employee will\naccept the Company’s request to create copyright works. Works which are created under the sponsorship of the Company, and which\nrepresent the will of the Company, and for which the responsibility for the work is assumed by the Company, shall be classified as legal\nperson works. The author thereof shall be the Company and the copyright shall vest in the Company. Meanwhile, the Employee agrees\nthat during the term of the Employment Agreement, the copyright\n4\nof other works completed by the Employee primarily by using the Company’s material and technical resources also vest in the Company\n(if the Employee is entitled to the right of acknowledgement according to PRC laws, the Employee may enjoy the right of\nacknowledgement, however, other rights of the copyright shall still vest in the Company).\n(5) The Employee agrees that any other Intellectual Property Rights developed by the Employee for the fulfilment of tasks assigned by the\nCompany or primarily by using the Company’s material and technical resources during the term of the Employment Agreement shall\nvest in the Company.\n(6) In deciding the salary and welfare benefits payable to the Employee, the Company has taken into account, and such salary and welfare\nbenefits include, rewards for the Employee’s contribution to the Intellectual Property Rights. The Employee hereby agrees that it shall\nnot be entitled to any additional rewards or compensation for the Intellectual Property Rights hereunder from the Company.\n(7) The Employee agrees that any Intellectual Property Rights developed by the Employee related to his original job at the Company or to\nthe task assigned by the Company within one year after the termination of his employment with the Company shall vest in the Company.\n(8) The Employee hereby irrevocably assigns, transfers and conveys to the Company any Intellectual Property Rights which the Employee\ncreates or is involved in creating while employed by the Company (whether or not created during the Company’s regular working hours\nor on the Company’s premises) which do not vest in the Company according to Sections 2.2(2) to (7) above. Further, the Employee\nagrees that he will use his best efforts to protect the benefits the Company may obtain globally as a result of the Intellectual Property\nRights. During the period of his employment with the Company and after he leaves the employment of the Company, the Employee\nshall, at the Company’s request in writing from time to time and provided that the Company bears all the reasonable expenses, execute\nall such further documents and do all such further acts or things as may be necessary inside or outside the PRC to vest all right, title and\ninterest in such Intellectual Property Rights referred to in this Section 2.2(8) in the Company (including assisting the Company in\nhandling all related applications, registration formalities or other legal formalities (including serving as a witness at court)).\n(9) The Employee understands that Intellectual Property Rights developed by the Employee prior to the commencement of the term of the\nEmployment Agreement shall not be subject to Section 2.2(7), and at the written request of the Company from time to time, the\nEmployee will provide the Company with the related information to show that the relevant Intellectual Property Rights have been\ndeveloped prior to the commencement of the term of the Employment Agreement.\n(10) The Employee agrees that if the Intellectual Property Rights generated during the Employee’s employment and reduced into written\nrecords, including words, drafts, blueprints, notes, notebooks, drawings, schematics, prototypes, magnetically encoded media, or any\nrelated materials, such written records, shall be deemed to be the Company’s property. The Employee undertakes that during the term of\nthe Employment Agreement and at any time thereafter, he will not disclose the contents of any of such written records to any persons\nunless authorized by the Company in writing.\n5\nARTICLE 3 NON-COMPETITION\n3.1 Definition\n“Competitive Position” shall mean serving in a senior management capacity, as an employee, consultant, advisor or otherwise, for any person\nthat engages in a business similar to the business of the Company or any of its Affiliates as conducted or as intended to be conducted on or\nprior to the end of the Term, including, without limitation, any real estate investment, ownership, acquisition, sale, renting, leasing,\ndevelopment and/or management in the PRC.\n3.2 Non-Competition by the Employee\n(1) The Employee hereby irrevocably represents and warrants that during the period of the Employee’s employment with the Company and\nwithin two (2) years after the Employee leaves his/her post, without regard for the reason, the Employee shall not, directly or indirectly,\nand whether or not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner,\npartner, shareholder, investor, or in any other capacity (except in the capacity of an employee of the Company acting for the benefit of\nthe Company):\n(a)\nserve in a Competitive Position;\n(b) assist in any way any person or entity whose activities are competitive with or otherwise adverse to the Company’s own business\nactivities; or\n(c)\nengage in activities contrary or harmful to the interest of the Company or any of its affiliates, including but not limited to\n(i) employing or recruiting any present, former or future employee of the Company or any of its affiliates to serve in a\nCompetitive Position; (ii) owning equity in any other company that is in a business similar to the business of the Company or any\nof its Affiliates as conducted or as intended to be conducted on or prior to the end of the Term, including, without limitation, any\nreal estate investment, ownership, acquisition, sale, renting, leasing, development and/or management in the PRC, provided that\nthe ownership of less than five per cent (5%) of the outstanding capital stock of any publicly-traded company, and the ownership\nby Employee of such other investments, if any, as previously approved by the Company in accordance with the Company’s\napplicable policies, shall not constitute a violation of this provision; (iii) disclosing or misusing any Confidential Information; or\n(iv) participating in a hostile takeover attempt of the Company or any of its affiliates.\n(2) The Company may, at any time either before or after the expiry or termination of the Employment Agreement, shorten, or waive, the\nperiod for its non-competition obligation under Section 3.2 (1) above by giving notice to the Employee thereof. If, at any time either\nbefore or after the expiry or termination of the Employment Agreement, the Company does not require the Employee to perform any\nnon-competition obligations hereunder, the period for the non-competition obligation may be shortened to zero, and the Company does\nnot need to pay any economic compensation to the Employee.\n6\n(3) In consideration of the Employee’s performance of the provisions under Section 3.2 (1) above, the Company shall, from the day\nthe Employee leaves the employment of the Company, pay to the Employee the economic compensation relating to the non-\ncompetition in compliance with applicable laws and regulations, for the enforcement of such restriction of non-competition herein\nagainst the Employee, provided that such restriction can be waived in writing by the Company in its sole discretion.\n(4) Upon receipt of each payment from the Company, the Employee shall provide the Company with a receipt recording the payment\ndate signed by the Employee.\n(5) If the Company breaches the provisions of this Agreement by failing to pay to the Employee the economic compensation in a full\nand timely manner as set out in Section 3.2(3) above (unless otherwise notified pursuant to Section 3.2(2)) for a period of 30 days\nafter receipt of the Employee’s written notice, the Employee shall be discharged from his/her obligations under Section 3.2(1)\nabove.\n3.3 Non-Solicitation\nThe Employee agrees that, while employed by the Company and for a period of two (2) years after the date of termination of the employment\nrelationship, without regard to the reason, if any, such employment shall terminate, the Employee will not, directly or indirectly, and whether\nor not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner, partner, shareholder,\ninvestor, or in any other capacity:\n(1) induce or attempt to induce any employee, consultant, sales agent, supplier, customer or independent contractor of the Company to end\nhis or her relationship with the Company; or\n(2) employ, retain as a consultant or contractor, or cause to be so employed or retained, any employee (or former employee within two years\nafter the date such former employee ceases to be employed by the Company), consultant, sales agent, or independent contractor of the\nCompany; or\n(3) accept or solicit investment capital, directly or indirectly, from any individual (other than the general public) or entity, or from an officer,\npartner, or principal of any entity, from which the Company has accepted investment capital, or with which, prior to the Employee’s\ntermination date, the Company has held discussions regarding the possibility of securing investment capital; or\n(4) enter into or attempt to enter into a business relationship with any individual or entity with which, prior to the Employee’s termination\ndate, the Company had a business relationship, or with which, prior to the Employee’s termination date, the Company had held\ndiscussions regarding the possibility of entering into such an relationship, if such relationship would be competitive with or otherwise\ndeleterious to the interests of the Company; or\n7\n(5) do or say anything which is harmful to the reputation of the Company, or which may lead any person to cease to deal with the Company\non substantially equivalent terms as before or at all.\nARTICLE 4 MISCELLANEOUS\n4.1 Scope of Restrictions\nThe Employee’s covenants and restrictions of confidentiality, intellectual property and non-competition as contained in Articles 1, 2 and 3\nhereof shall extend to and for the benefit of the Company and its affiliate companies and to the nature and extent of their respective businesses,\nthroughout the term of Employee’s employment with the Company. Where reference is made to the business of the Company, such term shall\ninclude any business of the Company and its affiliated companies.\n4.2 Governing Law\nThis Agreement, and all matters relating hereto, including any matter or dispute arising out of the Agreement, shall be interpreted, governed,\nand enforced according to the laws of the State of New York.\n4.3 Injunctive Relief\nEmployee acknowledges that the Company will be irreparably injured if Employee violates this Agreement, that monetary damages will not be\nsufficient to compensate the Company and that the Company will be entitled to a court order enjoining any such violation without the posting\nof any bond.\n4.4 Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns,\nprovided that Employee may not assign any part of this Agreement without the Company’s prior written consent.\n4.5 Entire Agreement; Amendment\nThis Agreement is the entire agreement of the parties with respect to the subject matter hereof and may not be modified, amended, terminated,\nor waived, in whole or in part, except by written agreement of the parties hereto.\n4.6 Severability\nIf for any reason any part of this Agreement shall be held invalid, its invalidity shall not affect any other provision of this Agreement that can\nbe given effect without the invalid provision, and the parties shall in good faith seek to replace such provision with another provision that is\nvalid and that to the maximum extent possible achieves the intent and purposes of the original provision.\n8\n4.7 Notices\nNotices under this Agreement shall be given in writing to the relevant Party at the address stated herein (or to such other address as it shall\nhave notified the other Party previously in writing).\nIf to the Company:\nXinyuan Real Estate Co., Ltd.\n18 Xinyuan Road, Zhengzhou, Henan 450011, PRC\nFax: 86 371 6565 1686\nAttention: Yong Zhang\nIf to the Employee:\n[Name]\n[Address]\n4.8 Survival of Agreement\nThis Agreement shall survive the termination of the Employment Agreement and the Employee shall be liable for any damages suffered by the\nCompany as a result of a breach of this Agreement.\n[Signature page follows]\n9\nIN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement to be executed as of the day and year first above written.\nXINYUAN REAL ESTATE CO., LTD.\nBy\nName: Yong Zhang\nTitle: Chairman and Chief Executive Officer\nDate:\n[Name of Employee]\nDate:\n10	EX-10.19 5 dex1019.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.19\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT (the “Agreement”), dated as of , 2007, between\n(“Employee”), and Xinyuan Real Estate Co., Ltd., a limited company duly registered under the laws of the Cayman Islands\n(the “Company”).\nWHEREAS, Employee is employed by the Company pursuant to the Employment Agreement between the parties hereto, dated as of the date hereof\n(the “Employment Agreement”); and\nWHEREAS, during the Term (as defined in the Employment Agreement) Employee may become privy to certain Confidential Information (as\ndefined below) of the Company, and Employee understands that the confidentiality of such Confidential Information is extremely important to the\nCompany.\nNOW, THEREFORE, in consideration of Employee’s employment by the Company and for other good and valuable consideration, the receipt of\nwhich is hereby acknowledged, the parties hereto agree as follows:\nARTICLE 1 CONFIDENTIALITY\n1.1 Definition\n“Confidential Information” shall mean all information not generally available to the public, whether written (including, without limitation,\nelectronic) or oral and in whatever form or medium such information is embodied or transmitted, relating to the Company or any of its\nAffiliates (as defined below), or their respective personnel, equity holders, partners, investors, clients, or service providers and the nature and\noperation of their respective businesses, including without limitation information relating to (i) documents and technical information,\n(ii) operations and techniques, (iii) systems, computer code, and technologies, (iv) trade secrets, developments and inventions, (v) products,\nservices and operations, (vi) strategies, business plans and programs, (vii) financial condition, financial activities, and investments, and\n(viii) customer lists and other customer information. “Confidential Information” includes all notes, analyses or other documents or material,\nwhether prepared by Employee or otherwise, which contain or otherwise reflect such information.\n“Affiliates” means any equity holders, subsidiaries, directors, officers or any entity that, directly or indirectly through one or more\nintermediaries, controls, is controlled by, or is under common control with the Company, and, as to an individual, an immediate family\nmember or Affiliate of such family member shall be deemed to be an Affiliate of such individual.\n1.2 Confidentiality Obligation @\n()\n3\n4)\n)\nDuring the term of the Employment Agreement and at any time after the termination of the Employment Agreement, the Employee shall\nabide by the confidentiality rules formulated by the Company.\n(a) Without the Company’s prior written consent, the Employee shall not, directly or indirectly (i) use any Confidential Information\nfor any purpose other than performance of his/her duties as an Employee; (ii) disclose in any form whatsoever any Confidential\nInformation to any third parties; (iii) acquire Confidential Information by any improper methods or allow third parties to do the\nsame; (iv) use or allow third parties to use any Confidential Information so acquired. For the purpose of this Agreement, “acquire\nby any improper methods” includes stealing, fraud, threat, bribery, unauthorized reproduction, breach of confidentiality\nobligations, persuasion of others to breach any confidentiality obligation or similar methods of the same nature.\n(b)  The Employee is obliged to use his/her best efforts to prevent any third party from stealing any Confidential Information.\nIf the Company suffers any loss resulting directly or indirectly from the Employee’s breach of Section 1.2(1) hereof, the Company shall\nhave the right to impose a discipline penalty on the Employee, and the Employee shall compensate the Company for the loss according\nto the relevant provisions of the Employment Agreement and assume any other legal liabilities under PRC laws.\nThe obligations under Section 1.2(1) shall not apply to the following information which:\n(a) the Employee can prove has entered into the public domain;\n(b)  has been disclosed other than by the Employee’s breach of the provisions of this Agreement;\n(© the Employee can prove was acquired from a third party who was not subject to any confidentiality restrictions; or\n(d)  was disclosed by the Employee as required by any applicable law or court order, under which circumstance, the Confidential\nInformation shall be disclosed only to the extent as expressly specified by such applicable law or court order.\nThe Employee understands and agrees that as may be required for the Company’s business operations and the Employee’s performance\nof his/her duties, the Employee may from time to time have access to Confidential Information owned by the Company’s subsidiaries\nand affiliates. For the purposes of this Article 1, the Company shall be deemed to include any subsidiaries or affiliates of the Company\nthat may, from time to time, become affiliated with the Company.\nThe Employee understands and agrees that the Company may from time to time receive confidential information of or relating to third\nparties which would require the Company to maintain in confidence. The Employee agrees to maintain in confidence for the Company\nand such third parties and in no event disclose to any party other than the Company and such third parties such confidential information.\n2\n1.3\n1.4\n2.1\n(6) Nothing in this Agreement shall be deemed to exclude, weaken or waive any rights related to the protection of trade secrets that the\nCompany may have under PRC laws (including but not limited to the PRC Anti-Unfair Competition Law).\nObligation to Return\n(1) Employee acknowledges that all physical manifestations of Confidential Information, including without limitation all originals and\ncopies of disks, code, programs, notes, records and documents in whatever form (including, without limitation, electronic form)\ngenerated by Employee or coming into Employee’s possession during the Term are the sole property of the Company. Upon termination\nof the Employment Agreement, or upon request of the Company at any time, Employee shall immediately deliver all copies of such\nmaterials to the Company and shall not retain any copies of any such materials in any form. Upon request of the Company, Employee\nshall certify in writing as to Employee’s compliance with this paragraph.\n(2) If the Company suffers losses from the Employee’s failure to return any of the above documents (including copies) or items to the\nCompany, the Employee shall be liable and compensate the Company for the losses. The Company may deduct an amount in respect of\nsuch losses from the last salary payment payable to the Employee, and shall have the right to take any other proper measures to protect\nits own legitimate rights and interests.\nCompelled Disclosure\nIn the event that Employee is compelled, by deposition, interrogatory, subpoena or civil investigative demand or other governmental or\nregulatory requirement, to disclose any of the Confidential Information, Employee will provide the Company with prompt notice thereof so\nthat the Company may seek an appropriate protective order or other remedy and/or waive compliance with the provisions hereof and Employee\nshall provide reasonable cooperation as may be requested by the Company in connection therewith. If such protective order or other remedy is\nnot obtained promptly, Employee may furnish that portion (and only that portion) of the Confidential Information, which, in the written\nopinion of counsel, Employee is legally required to disclose and will exercise Employee’s best efforts to obtain reliable assurance that\nconfidential treatment will be accorded any Confidential Information so furnished.\nARTICLE 2 INTELLECTUAL PROPERTY\nDefinition\n“Intellectual Property Rights” shall mean all patents, trademarks, service marks, trade names, copyrights, rights in software, domain names,\nknow-how, rights in Creative Works (as defined below), licenses and other intellectual property rights, being used to conduct the business of\nthe Company and its affiliates as now operated.\n“Creative Works” shall mean, all designs, ideas, discoveries, inventions, products, computer programs, source codes, procedures,\nimprovements, documents, information, materials, drawings, specifications, reports, electronic media or other instruments made, conceived or\ndeveloped by the Employee alone or with others.\n2.2\n“Moral Rights” shall mean any right to claim of authorship of a work, any right to object to any distortion or other modification of a work, and any similar right, existing under the law of any country in the world, or under any treaty. Ownership of Intellectual Property Rights and Transfer of Rights @\n()\n3\n4)\nDuring the term of the Employment Agreement and at the termination thereof, the Employee shall promptly disclose to the Company,\nwithout additional compensation, the following, to the extent that such disclosure could reasonably be expected to be of interest to the\nCompany:\n(a) any Creative Works related to the Company’s business activities or to the Employee’s work with the Company;\n(b)  any pricing or marketing strategies;\n(© any products and services;\n(d) any other ideas or information; and\n(e) any Intellectual Property Rights;\nwhich are conceived, adapted, discovered, developed or improved by the Employee while employed by the Company.\nThe Employee undertakes and warrants that he/she will not, during the term of the Employment Agreement or at any time after the\ntermination hereof, infringe, misappropriate, acquire or use (unless acquires or uses during the performance of his/her duties as an\nemployee of the Company) any of the Company’s Intellectual Property Rights.\nThe Employee acknowledges and agrees that any Creative Works created by the Employee for the purpose of the Company’s business or\nprimarily using the Company’s resources during the term of the Employment Agreement are occupational creations. The right to apply\nfor patents, copyrights trademarks or other protection shall be vested in the Company, and the Company shall be the patentee or holder of\nthe copyright, trademark or other protection after any such protections granted. The Employee agrees to assist the Company in executing\nand providing any and all documents and rendering any assistance that is reasonably necessary to obtain any patent, copyright, trademark\nor other protection for the Creative Works in the PRC or any other countries. Subject to applicable laws and treaties, the Employee\nagrees to irrevocably transfer and assign to the Company any and all Moral Rights that the Employee may have in such Creative Works.\nThe Parties agree that during the term of the Employment Agreement, according to the Company’s arrangement, the Employee will\naccept the Company’s request to create copyright works. Works which are created under the sponsorship of the Company, and which\nrepresent the will of the Company, and for which the responsibility for the work is assumed by the Company, shall be classified as legal\nperson works. The author thereof shall be the Company and the copyright shall vest in the Company. Meanwhile, the Employee agrees\nthat during the term of the Employment Agreement, the copyright\n4\n)\n(6)\n()\n(8)\n©)\n(10)\nof other works completed by the Employee primarily by using the Company’s material and technical resources also vest in the Company\n(if the Employee is entitled to the right of acknowledgement according to PRC laws, the Employee may enjoy the right of\nacknowledgement, however, other rights of the copyright shall still vest in the Company).\nThe Employee agrees that any other Intellectual Property Rights developed by the Employee for the fulfilment of tasks assigned by the\nCompany or primarily by using the Company’s material and technical resources during the term of the Employment Agreement shall\nvest in the Company.\nIn deciding the salary and welfare benefits payable to the Employee, the Company has taken into account, and such salary and welfare\nbenefits include, rewards for the Employee’s contribution to the Intellectual Property Rights. The Employee hereby agrees that it shall\nnot be entitled to any additional rewards or compensation for the Intellectual Property Rights hereunder from the Company.\nThe Employee agrees that any Intellectual Property Rights developed by the Employee related to his original job at the Company or to\nthe task assigned by the Company within one year after the termination of his employment with the Company shall vest in the Company.\nThe Employee hereby irrevocably assigns, transfers and conveys to the Company any Intellectual Property Rights which the Employee\ncreates or is involved in creating while employed by the Company (whether or not created during the Company’s regular working hours\nor on the Company’s premises) which do not vest in the Company according to Sections 2.2(2) to (7) above. Further, the Employee\nagrees that he will use his best efforts to protect the benefits the Company may obtain globally as a result of the Intellectual Property\nRights. During the period of his employment with the Company and after he leaves the employment of the Company, the Employee\nshall, at the Company’s request in writing from time to time and provided that the Company bears all the reasonable expenses, execute\nall such further documents and do all such further acts or things as may be necessary inside or outside the PRC to vest all right, title and\ninterest in such Intellectual Property Rights referred to in this Section 2.2(8) in the Company (including assisting the Company in\nhandling all related applications, registration formalities or other legal formalities (including serving as a witness at court)).\nThe Employee understands that Intellectual Property Rights developed by the Employee prior to the commencement of the term of the\nEmployment Agreement shall not be subject to Section 2.2(7), and at the written request of the Company from time to time, the\nEmployee will provide the Company with the related information to show that the relevant Intellectual Property Rights have been\ndeveloped prior to the commencement of the term of the Employment Agreement.\nThe Employee agrees that if the Intellectual Property Rights generated during the Employee’s employment and reduced into written\nrecords, including words, drafts, blueprints, notes, notebooks, drawings, schematics, prototypes, magnetically encoded media, or any\nrelated materials, such written records, shall be deemed to be the Company’s property. The Employee undertakes that during the term of\nthe Employment Agreement and at any time thereafter, he will not disclose the contents of any of such written records to any persons\nunless authorized by the Company in writing.\n3.1\n3.2\nDefinition ARTICLE 3 NON-COMPETITION\n“Competitive Position” shall mean serving in a senior management capacity, as an employee, consultant, advisor or otherwise, for any person that engages in a business similar to the business of the Company or any of its Affiliates as conducted or as intended to be conducted on or prior to the end of the Term, including, without limitation, any real estate investment, ownership, acquisition, sale, renting, leasing, development and/or management in the PRC. Non-Competition by the Employee @\n()\nThe Employee hereby irrevocably represents and warrants that during the period of the Employee’s employment with the Company and within two (2) years after the Employee leaves his/her post, without regard for the reason, the Employee shall not, directly or indirectly, and whether or not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner, partner, shareholder, investor, or in any other capacity (except in the capacity of an employee of the Company acting for the benefit of the Company):\n(a) serve in a Competitive Position;\n(b)  assistin any way any person or entity whose activities are competitive with or otherwise adverse to the Company’s own business\nactivities; or\n(0 engage in activities contrary or harmful to the interest of the Company or any of its affiliates, including but not limited to\n(i) employing or recruiting any present, former or future employee of the Company or any of its affiliates to serve in a\nCompetitive Position; (ii) owning equity in any other company that is in a business similar to the business of the Company or any\nof its Affiliates as conducted or as intended to be conducted on or prior to the end of the Term, including, without limitation, any\nreal estate investment, ownership, acquisition, sale, renting, leasing, development and/or management in the PRC, provided that\nthe ownership of less than five per cent (5%) of the outstanding capital stock of any publicly-traded company, and the ownership\nby Employee of such other investments, if any, as previously approved by the Company in accordance with the Company’s\napplicable policies, shall not constitute a violation of this provision; (iii) disclosing or misusing any Confidential Information; or\n(iv) participating in a hostile takeover attempt of the Company or any of its affiliates.\nThe Company may, at any time either before or after the expiry or termination of the Employment Agreement, shorten, or waive, the period for its non-competition obligation under Section 3.2 (1) above by giving notice to the Employee thereof. If, at any time either before or after the expiry or termination of the Employment Agreement, the Company does not require the Employee to perform any non-competition obligations hereunder, the period for the non-competition obligation may be shortened to zero, and the Company does not need to pay any economic compensation to the Employee. 6\n(3)  Inconsideration of the Employee’s performance of the provisions under Section 3.2 (1) above, the Company shall, from the day\nthe Employee leaves the employment of the Company, pay to the Employee the economic compensation relating to the non-\ncompetition in compliance with applicable laws and regulations, for the enforcement of such restriction of non-competition herein\nagainst the Employee, provided that such restriction can be waived in writing by the Company in its sole discretion.\n(49)  Upon receipt of each payment from the Company, the Employee shall provide the Company with a receipt recording the payment\ndate signed by the Employee.\n(5)  If the Company breaches the provisions of this Agreement by failing to pay to the Employee the economic compensation in a full\nand timely manner as set out in Section 3.2(3) above (unless otherwise notified pursuant to Section 3.2(2)) for a period of 30 days\nafter receipt of the Employee’s written notice, the Employee shall be discharged from his/her obligations under Section 3.2(1)\nabove.\n3.3 Non-Solicitation The Employee agrees that, while employed by the Company and for a period of two (2) years after the date of termination of the employment relationship, without regard to the reason, if any, such employment shall terminate, the Employee will not, directly or indirectly, and whether or not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner, partner, shareholder, investor, or in any other capacity: @\n()\n3\n4)\ninduce or attempt to induce any employee, consultant, sales agent, supplier, customer or independent contractor of the Company to end\nhis or her relationship with the Company; or\nemploy, retain as a consultant or contractor, or cause to be so employed or retained, any employee (or former employee within two years\nafter the date such former employee ceases to be employed by the Company), consultant, sales agent, or independent contractor of the\nCompany; or\naccept or solicit investment capital, directly or indirectly, from any individual (other than the general public) or entity, or from an officer,\npartner, or principal of any entity, from which the Company has accepted investment capital, or with which, prior to the Employee’s\ntermination date, the Company has held discussions regarding the possibility of securing investment capital; or\nenter into or attempt to enter into a business relationship with any individual or entity with which, prior to the Employee’s termination\ndate, the Company had a business relationship, or with which, prior to the Employee’s termination date, the Company had held\ndiscussions regarding the possibility of entering into such an relationship, if such relationship would be competitive with or otherwise\ndeleterious to the interests of the Company; or\n4.1\n4.2\n4.3\n4.4\n4.5\n4.6\n(5) do or say anything which is harmful to the reputation of the Company, or which may lead any person to cease to deal with the Company\non substantially equivalent terms as before or at all.\nARTICLE 4 MISCELLANEOUS\nScope of Restrictions\nThe Employee’s covenants and restrictions of confidentiality, intellectual property and non-competition as contained in Articles 1, 2 and 3\nhereof shall extend to and for the benefit of the Company and its affiliate companies and to the nature and extent of their respective businesses,\nthroughout the term of Employee’s employment with the Company. Where reference is made to the business of the Company, such term shall\ninclude any business of the Company and its affiliated companies.\nGoverning Law\nThis Agreement, and all matters relating hereto, including any matter or dispute arising out of the Agreement, shall be interpreted, governed,\nand enforced according to the laws of the State of New York.\nInjunctive Relief\nEmployee acknowledges that the Company will be irreparably injured if Employee violates this Agreement, that monetary damages will not be\nsufficient to compensate the Company and that the Company will be entitled to a court order enjoining any such violation without the posting\nof any bond.\nSuccessors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns,\nprovided that Employee may not assign any part of this Agreement without the Company’s prior written consent.\nEntire Agreement; Amendment\nThis Agreement is the entire agreement of the parties with respect to the subject matter hereof and may not be modified, amended, terminated,\nor waived, in whole or in part, except by written agreement of the parties hereto.\nSeverability\nIf for any reason any part of this Agreement shall be held invalid, its invalidity shall not affect any other provision of this Agreement that can\nbe given effect without the invalid provision, and the parties shall in good faith seek to replace such provision with another provision that is\nvalid and that to the maximum extent possible achieves the intent and purposes of the original provision.\n8\n4.7 Notices\nNotices under this Agreement shall be given in writing to the relevant Party at the address stated herein (or to such other address as it shall\nhave notified the other Party previously in writing).\nIf to the Company:\nXinyuan Real Estate Co., Ltd.\n18 Xinyuan Road, Zhengzhou, Henan 450011, PRC\nFax: 86 371 6565 1686\nAttention: Yong Zhang\nIf to the Employee:\n[Name]\n[Address]\n4.8 Survival of Agreement\nThis Agreement shall survive the termination of the Employment Agreement and the Employee shall be liable for any damages suffered by the\nCompany as a result of a breach of this Agreement.\n[Signature page follows]\n9\nIN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement to be executed as of the day and year first above written.\nXINYUAN REAL ESTATE CO., LTD.\nBy\nName: Yong Zhang\nTitle: Chairman and Chief Executive Officer\nDate:\n[Name of Employee]\nDate:\n10	EX-10.19 5 lex1019.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.19\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT (the "Agreement"), dated as of 2007, between\n("Employee"), and Xinyuan Real Estate Co., Ltd., a limited company duly registered under the laws of the Cayman Islands\n(the "Company").\nWHEREAS, Employee is employed by the Company pursuant to the Employment Agreement between the parties hereto, dated as of the date hereof\n(the "Employment Agreement"); and\nWHEREAS, during the Term (as defined in the Employment Agreement) Employee may become privy to certain Confidential Information (as\ndefined below) of the Company, and Employee understands that the confidentiality of such Confidential Information is extremely important to the\nCompany.\nNOW, THEREFORE, in consideration of Employee's employment by the Company and for other good and valuable consideration, the receipt of\nwhich is hereby acknowledged, the parties hereto agree as follows:\nARTICLE 1 CONFIDENTIALITY\n1.1 Definition\n"Confidential Information" shall mean all information not generally available to the public, whether written (including, without limitation,\nelectronic) or oral and in whatever form or medium such information is embodied or transmitted, relating to the Company or any of its\nAffiliates (as defined below), or their respective personnel, equity holders, partners, investors, clients, or service providers and the nature and\noperation of their respective businesses, including without limitation information relating to (i) documents and technical information,\n(ii) operations and techniques, (iii) systems, computer code, and technologies, (iv) trade secrets, developments and inventions, (v) products,\nservices and operations, (vi) strategies, business plans and programs, (vii) financial condition, financial activities, and investments, and\n(viii) customer lists and other customer information. "Confidential Information" includes all notes, analyses or other documents or material,\nwhether prepared by Employee or otherwise, which contain or otherwise reflect such information.\n"Affiliates" means any equity holders, subsidiaries, directors, officers or any entity that, directly or indirectly through one or more\nintermediaries, controls, is controlled by, or is under common control with the Company, and, as to an individual, an immediate family\nmember or Affiliate of such family member shall be deemed to be an Affiliate of such individual.\n1.2 Confidentiality Obligation\n(1)\nDuring the term of the Employment Agreement and at any time after the termination of the Employment Agreement, the Employee shall\nabide by the confidentiality rules formulated by the Company.\n(a)\nWithout the Company's prior written consent, the Employee shall not, directly or indirectly (i) use any Confidential Information\nfor any purpose other than performance of his/her duties as an Employee; (ii) disclose in any form whatsoever any Confidential\nInformation to any third parties; (iii) acquire Confidential Information by any improper methods or allow third parties to do the\nsame; (iv) use or allow third parties to use any Confidential Information so acquired. For the purpose of this Agreement, "acquire\nby any improper methods" includes stealing, fraud, threat, bribery, unauthorized reproduction, breach of confidentiality\nobligations, persuasion of others to breach any confidentiality obligation or similar methods of the same nature.\n(b)\nThe Employee is obliged to use his/her best efforts to prevent any third party from stealing any Confidential Information.\n(2)\nIf the Company suffers any loss resulting directly or indirectly from the Employee's breach of Section 1.2(1) hereof, the Company shall\nhave the right to impose a discipline penalty on the Employee, and the Employee shall compensate the Company for the loss according\nto the relevant provisions of the Employment Agreement and assume any other legal liabilities under PRC laws.\n(3) The obligations under Section 1.2(1) shall not apply to the following information which:\n(a)\nthe Employee can prove has entered into the public domain;\n(b)\nhas been disclosed other than by the Employee's breach of the provisions of this Agreement;\n(c)\nthe Employee can prove was acquired from a third party who was not subject to any confidentiality restrictions; or\n(d)\nwas disclosed by the Employee as required by any applicable law or court order, under which circumstance, the Confidential\nInformation shall be disclosed only to the extent as expressly specified by such applicable law or court order.\n(4)\nThe Employee understands and agrees that as may be required for the Company's business operations and the Employee's performance\nof his/her duties, the Employee may from time to time have access to Confidential Information owned by the Company's subsidiaries\nand affiliates. For the purposes of this Article 1, the Company shall be deemed to include any subsidiaries or affiliates of the Company\nthat may, from time to time, become affiliated with the Company.\n(5) The Employee understands and agrees that the Company may from time to time receive confidential information of or relating to third\nparties which would require the Company to maintain in confidence. The Employee agrees to maintain in confidence for the Company\nand such third parties and in no event disclose to any party other than the Company and such third parties such confidential information.\n2\n(6) Nothing in this Agreement shall be deemed to exclude, weaken or waive any rights related to the protection of trade secrets that the\nCompany may have under PRC laws (including but not limited to the PRC Anti-Unfair Competition Law).\n1.3 Obligation to Return\n(1)\nEmployee acknowledges that all physical manifestations of Confidential Information, including without limitation all originals and\ncopies of disks, code, programs, notes, records and documents in whatever form (including, without limitation, electronic form)\ngenerated by Employee or coming into Employee's possession during the Term are the sole property of the Company. Upon termination\nof the Employment Agreement, or upon request of the Company at any time, Employee shall immediately deliver all copies of such\nmaterials to the Company and shall not retain any copies of any such materials in any form. Upon request of the Company, Employee\nshall certify in writing as to Employee's compliance with this paragraph.\n(2)\nIf the Company suffers losses from the Employee's failure to return any of the above documents (including copies) or items to the\nCompany, the Employee shall be liable and compensate the Company for the losses. The Company may deduct an amount in respect of\nsuch losses from the last salary payment payable to the Employee, and shall have the right to take any other proper measures to protect\nits own legitimate rights and interests.\n1.4 Compelled Disclosure\nIn the event that Employee is compelled, by deposition, interrogatory, subpoena or civil investigative demand or other governmental or\nregulatory requirement, to disclose any of the Confidential Information, Employee will provide the Company with prompt notice thereof so\nthat the Company may seek an appropriate protective order or other remedy and/or waive compliance with the provisions hereof and Employee\nshall provide reasonable cooperation as may be requested by the Company in connection therewith. If such protective order or other remedy is\nnot obtained promptly, Employee may furnish that portion (and only that portion) of the Confidential Information, which, in the written\nopinion of counsel, Employee is legally required to disclose and will exercise Employee's best efforts to obtain reliable assurance that\nconfidential treatment will be accorded any Confidential Information so furnished.\nARTICLE 2 INTELLECTUAL PROPERTY\n2.1 Definition\n"Intellectual Property Rights" shall mean all patents, trademarks, service marks, trade names, copyrights, rights in software, domain names,\nknow-how, rights in Creative Works (as defined below), licenses and other intellectual property rights, being used to conduct the business of\nthe Company and its affiliates as now operated.\n"Creative Works" shall mean, all designs, ideas, discoveries, inventions, products, computer programs, source codes, procedures,\nimprovements, documents, information, materials, drawings, specifications, reports, electronic media or other instruments made, conceived or\ndeveloped by the Employee alone or with others.\n3\n"Moral Rights" shall mean any right to claim of authorship of a work, any right to object to any distortion or other modification of a work, and\nany similar right, existing under the law of any country in the world, or under any treaty.\n2.2 Ownership of Intellectual Property Rights and Transfer of Rights\n(1)\nDuring the term of the Employment Agreement and at the termination thereof, the Employee shall promptly disclose to the Company,\nwithout additional compensation, the following, to the extent that such disclosure could reasonably be expected to be of interest to the\nCompany:\n(a)\nany Creative Works related to the Company's business activities or to the Employee's work with the Company;\n(b)\nany pricing or marketing strategies;\n(c)\nany products and services;\n(d)\nany other ideas or information; and\n(e)\nany Intellectual Property Rights;\nwhich are conceived, adapted, discovered, developed or improved by the Employee while employed by the Company.\n(2) The Employee undertakes and warrants that he/she will not, during the term of the Employment Agreement or at any time after the\ntermination hereof, infringe, misappropriate, acquire or use (unless acquires or uses during the performance of his/her duties as an\nemployee of the Company) any of the Company's Intellectual Property Rights.\n(3) The Employee acknowledges and agrees that any Creative Works created by the Employee for the purpose of the Company's business\nor\nprimarily using the Company's resources during the term of the Employment Agreement are occupational creations. The right to apply\nfor patents, copyrights trademarks or other protection shall be vested in the Company, and the Company shall be the patentee or holder of\nthe copyright, trademark or other protection after any such protections granted. The Employee agrees to assist the Company in executing\nand providing any and all documents and rendering any assistance that is reasonably necessary to obtain any patent, copyright, trademark\nor other protection for the Creative Works in the PRC or any other countries. Subject to applicable laws and treaties, the Employee\nagrees to irrevocably transfer and assign to the Company any and all Moral Rights that the Employee may have in such Creative Works.\n(4)\nThe Parties agree that during the term of the Employment Agreement, according to the Company's arrangement, the Employee will\naccept the Company's request to create copyright works. Works which are created under the sponsorship of the Company, and which\nrepresent the will of the Company, and for which the responsibility for the work is assumed by the Company, shall be classified as legal\nperson works. The author thereof shall be the Company and the copyright shall vest in the Company. Meanwhile, the Employee agrees\nthat during the term of the Employment Agreement, the copyright\n4\nof other works completed by the Employee primarily by using the Company's material and technical resources also vest in the Company\n(if the Employee is entitled to the right of acknowledgement according to PRC laws, the Employee may enjoy the right of\nacknowledgement, however, other rights of the copyright shall still vest in the Company).\n(5)\nThe Employee agrees that any other Intellectual Property Rights developed by the Employee for the fulfilment of tasks assigned by the\nCompany or primarily by using the Company's material and technical resources during the term of the Employment Agreement\nshall\nvest in the Company.\n(6)\nIn deciding the salary and welfare benefits payable to the Employee, the Company has taken into account, and such salary and welfare\nbenefits include, rewards for the Employee's contribution to the Intellectual Property Rights. The Employee hereby agrees that it shall\nnot be entitled to any additional rewards or compensation for the Intellectual Property Rights hereunder from the Company.\n(7) The Employee agrees that any Intellectual Property Rights developed by the Employee related to his original job at the Company or to\nthe task assigned by the Company within one year after the termination of his employment with the Company shall vest in the Company.\n(8)\nThe Employee hereby irrevocably assigns, transfers and conveys to the Company any Intellectual Property Rights which the Employee\ncreates or is involved in creating while employed by the Company (whether or not created during the Company's regular working hours\nor on the Company's premises) which do not vest in the Company according to Sections 2.2(2) to (7) above. Further, the Employee\nagrees that he will use his best efforts to protect the benefits the Company may obtain globally as a result of the Intellectual Property\nRights During the period of his employment with the Company and after he leaves the employment of the Company, the Employee\nshall, at the Company's request in writing from time to time and provided that the Company bears all the reasonable expenses, execute\nall such further documents and do all such further acts or things as may be necessary inside or outside the PRC to vest all right, title\nand\ninterest in such Intellectual Property Rights referred to in this Section 2.2(8) in the Company (including assisting the Company\nin\nhandling all related applications, registration formalities or other legal formalities (including serving as a witness at court)).\n(9)\nThe Employee understands that Intellectual Property Rights developed by the Employee prior to the commencement of the term of the\nEmployment Agreement shall not be subject to Section 2.2(7), and at the written request of the Company from time to time, the\nEmployee will provide the Company with the related information to show that the relevant Intellectual Property Rights have been\ndeveloped prior to the commencement of the term of the Employment Agreement.\n(10) The Employee agrees that if the Intellectual Property Rights generated during the Employee's employment and reduced into written\nrecords, including words, drafts, blueprints, notes, notebooks, drawings, schematics, prototypes, magnetically encoded media, or any\nrelated materials, such written records, shall be deemed to be the Company's property. The Employee undertakes that during the term of\nthe Employment Agreement and at any time thereafter, he will not disclose the contents of any of such written records to any persons\nunless authorized by the Company in writing.\n5\nARTICLE 3 NON-COMPETITION\n3.1 Definition\n"Competitive Position" shall mean serving in a senior management capacity, as an employee, consultant, advisor or otherwise, for any person\nthat engages in a business similar to the business of the Company or any of its Affiliates as conducted or as intended to be conducted on\nor\nprior to the end of the Term, including, without limitation, any real estate investment, ownership, acquisition, sale, renting, leasing,\ndevelopment and/or management in the PRC.\n3.2 Non-Competition by the Employee\n(1)\nThe Employee hereby irrevocably represents and warrants that during the period of the Employee's employment with the Company and\nwithin two (2) years after the Employee leaves his/her post, without regard for the reason, the Employee shall not, directly or indirectly,\nand whether or not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner,\npartner, shareholder, investor, or in any other capacity (except in the capacity of an employee of the Company acting for the benefit of\nthe Company):\n(a)\nserve in a Competitive Position;\n(b)\nassist in any way any person or entity whose activities are competitive with or otherwise adverse to the Company's own business\nactivities; or\n(c)\nengage in activities contrary or harmful to the interest of the Company or any of its affiliates, including but not limited to\n(i) employing or recruiting any present, former or future employee of the Company or any of its affiliates to serve in a\nCompetitive Position; (ii) owning equity in any other company that is in a business similar to the business of the Company or any\nof its Affiliates as conducted or as intended to be conducted on or prior to the end of the Term, including, without limitation, any\nreal estate investment, ownership, acquisition, sale, renting, leasing, development and/or management in the PRC, provided that\nthe ownership of less than five per cent (5%) of the outstanding capital stock of any publicly-traded company, and the ownership\nby\nEmployee of such other investments, if any, as previously approved by the Company in accordance with the Company's\napplicable policies, shall not constitute a violation of this provision; (iii) disclosing or misusing any Confidential Information; or\n(iv) participating in a hostile takeover attempt of the Company or any of its affiliates.\n(2)\nThe Company may, at any time either before or after the expiry or termination of the Employment Agreement, shorten, or waive, the\nperiod for its non-competition obligation under Section 3.2 (1) above by giving notice to the Employee thereof. If, at any time either\nbefore or after the expiry or termination of the Employment Agreement, the Company does not require the Employee to perform any\nnon-competition obligations hereunder, the period for the non-competition obligation may be shortened to zero, and the Company does\nnot need to pay any economic compensation to the Employee.\n6\n(3)\nIn consideration of the Employee's performance of the provisions under Section 3.2 (1) above, the Company shall, from the day\nthe Employee leaves the employment of the Company, pay to the Employee the economic compensation relating to the non-\ncompetition in compliance with applicable laws and regulations, for the enforcement of such restriction of non-competition herein\nagainst the Employee, provided that such restriction can be waived in writing by the Company in its sole discretion.\n(4)\nUpon receipt of each payment from the Company, the Employee shall provide the Company with a receipt recording the payment\ndate signed by the Employee.\n(5)\nIf the Company breaches the provisions of this Agreement by failing to pay to the Employee the economic compensation in a full\nand timely manner as set out in Section 3.2(3) above (unless otherwise notified pursuant to Section 3.2(2)) for a period of 30 days\nafter receipt of the Employee's written notice, the Employee shall be discharged from his/her obligations under Section 3.2(1)\nabove.\n3.3 Non-Solicitation\nThe\nEmployee\nagrees that, while employed by the Company and for a period of two (2) years after the date of termination of the employment\nrelationship, without regard to the reason, if any, such employment shall terminate, the Employee will not, directly or indirectly, and whether\nor not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner, partner, shareholder,\ninvestor, or in any other capacity:\n(1)\ninduce or attempt to induce any employee, consultant, sales agent, supplier, customer or independent contractor of the Company to end\nhis or her relationship with the Company; or\n(2)\nemploy, retain as a consultant or contractor, or cause to be so employed or retained, any employee (or former employee within two years\nafter the date such former employee ceases to be employed by the Company), consultant, sales agent, or independent contractor of the\nCompany; or\n(3)\naccept or solicit investment capital, directly or indirectly, from any individual (other than the general public) or entity, or from an officer,\npartner, or principal of any entity, from which the Company has accepted investment capital, or with which, prior to the Employee's\ntermination date, the Company has held discussions regarding the possibility of securing investment capital; or\n(4) enter into or attempt to enter into a business relationship with any individual or entity with which, prior to the Employee's termination\ndate, the Company had a business relationship, or with which, prior to the Employee's termination date, the Company had held\ndiscussions regarding the possibility of entering into such an relationship, if such relationship would be competitive with or otherwise\ndeleterious to the interests of the Company; or\n7\n(5) do or say anything which is harmful to the reputation of the Company, or which may lead any person to cease to deal with the Company\non substantially equivalent terms as before or at all.\nARTICLE 4 MISCELLANEOUS\n4.1 Scope of Restrictions\nThe Employee's covenants and restrictions of confidentiality, intellectual property and non-competition as contained in Articles 1, 2 and 3\nhereof shall extend to and for the benefit of the Company and its affiliate companies and to the nature and extent of their respective businesses,\nthroughout the term of Employee's employment with the Company. Where reference is made to the business of the Company, such term shall\ninclude any business of the Company and its affiliated companies.\n4.2 Governing Law\nThis Agreement, and all matters relating hereto, including any matter or dispute arising out of the Agreement, shall be interpreted, governed,\nand enforced according to the laws of the State of New York.\n4.3 Injunctive Relief\nEmployee acknowledges that the Company will be irreparably injured if Employee violates this Agreement, that monetary damages will not be\nsufficient to compensate the Company and that the Company will be entitled to a court order enjoining any such violation without the posting\nof any bond.\n4.4 Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns,\nprovided that Employee may not assign any part of this Agreement without the Company's prior written consent.\n4.5 Entire Agreement; Amendment\nThis Agreement is the entire agreement of the parties with respect to the subject matter hereof and may not be modified, amended, terminated,\nor waived, in whole or in part, except by written agreement of the parties hereto.\n4.6 Severability\nIf\nfor any reason any part of this Agreement shall be held invalid, its invalidity shall not affect any other provision of this Agreement that can\nbe given effect without the invalid provision, and the parties shall in good faith seek to replace such provision with another provision that is\nvalid and that to the maximum extent possible achieves the intent and purposes of the original provision.\n8\n4.7 Notices\nNotices under this Agreement shall be given in writing to the relevant Party at the address stated herein (or to such other address as it shall\nhave notified the other Party previously in writing).\nIf to the Company:\nXinyuan Real Estate Co., Ltd.\n18 Xinyuan Road, Zhengzhou, Henan 450011, PRC\nFax: 86 371 6565 1686\nAttention: Yong Zhang\nIf to the Employee:\n[Name\n[Address]\n4.8 Survival of Agreement\nThis Agreement shall survive the termination of the Employment Agreement and the Employee shall be liable for any damages suffered by the\nCompany as a result of a breach of this Agreement.\n[Signature page follows]\n9\nIN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement to be executed as of the day and year first above written.\nXINYUAN REAL ESTATE CO., LTD.\nBy\nName: Yong Zhang\nTitle: Chairman and Chief Executive Officer\nDate:\n[Name of Employee]\nDate:\n10	EX-10.19 5 dex1019.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.19\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT (the “Agreement”), dated as of\n, 2007, between\n(“Employee”), and Xinyuan Real Estate Co., Ltd., a limited company duly registered under the laws of the Cayman Islands\n(the “Company”).\nWHEREAS, Employee is employed by the Company pursuant to the Employment Agreement between the parties hereto, dated as of the date hereof\n(the “Employment Agreement”); and\nWHEREAS, during the Term (as defined in the Employment Agreement) Employee may become privy to certain Confidential Information (as\ndefined below) of the Company, and Employee understands that the confidentiality of such Confidential Information is extremely important to the\nCompany.\nNOW, THEREFORE, in consideration of Employee’s employment by the Company and for other good and valuable consideration, the receipt of\nwhich is hereby acknowledged, the parties hereto agree as follows:\nARTICLE 1 CONFIDENTIALITY\n1.1 Definition\n“Confidential Information” shall mean all information not generally available to the public, whether written (including, without limitation,\nelectronic) or oral and in whatever form or medium such information is embodied or transmitted, relating to the Company or any of its\nAffiliates (as defined below), or their respective personnel, equity holders, partners, investors, clients, or service providers and the nature and\noperation of their respective businesses, including without limitation information relating to (i) documents and technical information,\n(ii) operations and techniques, (iii) systems, computer code, and technologies, (iv) trade secrets, developments and inventions, (v) products,\nservices and operations, (vi) strategies, business plans and programs, (vii) financial condition, financial activities, and investments, and\n(viii) customer lists and other customer information. “Confidential Information” includes all notes, analyses or other documents or material,\nwhether prepared by Employee or otherwise, which contain or otherwise reflect such information.\n“Affiliates” means any equity holders, subsidiaries, directors, officers or any entity that, directly or indirectly through one or more\nintermediaries, controls, is controlled by, or is under common control with the Company, and, as to an individual, an immediate family\nmember or Affiliate of such family member shall be deemed to be an Affiliate of such individual.\n1.2 Confidentiality Obligation\n(1) During the term of the Employment Agreement and at any time after the termination of the Employment Agreement, the Employee shall\nabide by the confidentiality rules formulated by the Company.\n(a) Without the Company’s prior written consent, the Employee shall not, directly or indirectly (i) use any Confidential Information\nfor any purpose other than performance of his/her duties as an Employee; (ii) disclose in any form whatsoever any Confidential\nInformation to any third parties; (iii) acquire Confidential Information by any improper methods or allow third parties to do the\nsame; (iv) use or allow third parties to use any Confidential Information so acquired. For the purpose of this Agreement, “acquire\nby any improper methods” includes stealing, fraud, threat, bribery, unauthorized reproduction, breach of confidentiality\nobligations, persuasion of others to breach any confidentiality obligation or similar methods of the same nature.\n(b) The Employee is obliged to use his/her best efforts to prevent any third party from stealing any Confidential Information.\n(2) If the Company suffers any loss resulting directly or indirectly from the Employee’s breach of Section 1.2(1) hereof, the Company shall\nhave the right to impose a discipline penalty on the Employee, and the Employee shall compensate the Company for the loss according\nto the relevant provisions of the Employment Agreement and assume any other legal liabilities under PRC laws.\n(3) The obligations under Section 1.2(1) shall not apply to the following information which:\n(a)\nthe Employee can prove has entered into the public domain;\n(b) has been disclosed other than by the Employee’s breach of the provisions of this Agreement;\n(c)\nthe Employee can prove was acquired from a third party who was not subject to any confidentiality restrictions; or\n(d) was disclosed by the Employee as required by any applicable law or court order, under which circumstance, the Confidential\nInformation shall be disclosed only to the extent as expressly specified by such applicable law or court order.\n(4) The Employee understands and agrees that as may be required for the Company’s business operations and the Employee’s performance\nof his/her duties, the Employee may from time to time have access to Confidential Information owned by the Company’s subsidiaries\nand affiliates. For the purposes of this Article 1, the Company shall be deemed to include any subsidiaries or affiliates of the Company\nthat may, from time to time, become affiliated with the Company.\n(5) The Employee understands and agrees that the Company may from time to time receive confidential information of or relating to third\nparties which would require the Company to maintain in confidence. The Employee agrees to maintain in confidence for the Company\nand such third parties and in no event disclose to any party other than the Company and such third parties such confidential information.\n2\n(6) Nothing in this Agreement shall be deemed to exclude, weaken or waive any rights related to the protection of trade secrets that the\nCompany may have under PRC laws (including but not limited to the PRC Anti-Unfair Competition Law).\n1.3 Obligation to Return\n(1) Employee acknowledges that all physical manifestations of Confidential Information, including without limitation all originals and\ncopies of disks, code, programs, notes, records and documents in whatever form (including, without limitation, electronic form)\ngenerated by Employee or coming into Employee’s possession during the Term are the sole property of the Company. Upon termination\nof the Employment Agreement, or upon request of the Company at any time, Employee shall immediately deliver all copies of such\nmaterials to the Company and shall not retain any copies of any such materials in any form. Upon request of the Company, Employee\nshall certify in writing as to Employee’s compliance with this paragraph.\n(2) If the Company suffers losses from the Employee’s failure to return any of the above documents (including copies) or items to the\nCompany, the Employee shall be liable and compensate the Company for the losses. The Company may deduct an amount in respect of\nsuch losses from the last salary payment payable to the Employee, and shall have the right to take any other proper measures to protect\nits own legitimate rights and interests.\n1.4 Compelled Disclosure\nIn the event that Employee is compelled, by deposition, interrogatory, subpoena or civil investigative demand or other governmental or\nregulatory requirement, to disclose any of the Confidential Information, Employee will provide the Company with prompt notice thereof so\nthat the Company may seek an appropriate protective order or other remedy and/or waive compliance with the provisions hereof and Employee\nshall provide reasonable cooperation as may be requested by the Company in connection therewith. If such protective order or other remedy is\nnot obtained promptly, Employee may furnish that portion (and only that portion) of the Confidential Information, which, in the written\nopinion of counsel, Employee is legally required to disclose and will exercise Employee’s best efforts to obtain reliable assurance that\nconfidential treatment will be accorded any Confidential Information so furnished.\nARTICLE 2 INTELLECTUAL PROPERTY\n2.1 Definition\n“Intellectual Property Rights” shall mean all patents, trademarks, service marks, trade names, copyrights, rights in software, domain names,\nknow-how, rights in Creative Works (as defined below), licenses and other intellectual property rights, being used to conduct the business of\nthe Company and its affiliates as now operated.\n“Creative Works” shall mean, all designs, ideas, discoveries, inventions, products, computer programs, source codes, procedures,\nimprovements, documents, information, materials, drawings, specifications, reports, electronic media or other instruments made, conceived or\ndeveloped by the Employee alone or with others.\n3\n“Moral Rights” shall mean any right to claim of authorship of a work, any right to object to any distortion or other modification of a work, and\nany similar right, existing under the law of any country in the world, or under any treaty.\n2.2 Ownership of Intellectual Property Rights and Transfer of Rights\n(1) During the term of the Employment Agreement and at the termination thereof, the Employee shall promptly disclose to the Company,\nwithout additional compensation, the following, to the extent that such disclosure could reasonably be expected to be of interest to the\nCompany:\n(a)\nany Creative Works related to the Company’s business activities or to the Employee’s work with the Company;\n(b) any pricing or marketing strategies;\n(c)\nany products and services;\n(d) any other ideas or information; and\n(e)\nany Intellectual Property Rights;\nwhich are conceived, adapted, discovered, developed or improved by the Employee while employed by the Company.\n(2) The Employee undertakes and warrants that he/she will not, during the term of the Employment Agreement or at any time after the\ntermination hereof, infringe, misappropriate, acquire or use (unless acquires or uses during the performance of his/her duties as an\nemployee of the Company) any of the Company’s Intellectual Property Rights.\n(3) The Employee acknowledges and agrees that any Creative Works created by the Employee for the purpose of the Company’s business or\nprimarily using the Company’s resources during the term of the Employment Agreement are occupational creations. The right to apply\nfor patents, copyrights trademarks or other protection shall be vested in the Company, and the Company shall be the patentee or holder of\nthe copyright, trademark or other protection after any such protections granted. The Employee agrees to assist the Company in executing\nand providing any and all documents and rendering any assistance that is reasonably necessary to obtain any patent, copyright, trademark\nor other protection for the Creative Works in the PRC or any other countries. Subject to applicable laws and treaties, the Employee\nagrees to irrevocably transfer and assign to the Company any and all Moral Rights that the Employee may have in such Creative Works.\n(4) The Parties agree that during the term of the Employment Agreement, according to the Company’s arrangement, the Employee will\naccept the Company’s request to create copyright works. Works which are created under the sponsorship of the Company, and which\nrepresent the will of the Company, and for which the responsibility for the work is assumed by the Company, shall be classified as legal\nperson works. The author thereof shall be the Company and the copyright shall vest in the Company. Meanwhile, the Employee agrees\nthat during the term of the Employment Agreement, the copyright\n4\nof other works completed by the Employee primarily by using the Company’s material and technical resources also vest in the Company\n(if the Employee is entitled to the right of acknowledgement according to PRC laws, the Employee may enjoy the right of\nacknowledgement, however, other rights of the copyright shall still vest in the Company).\n(5) The Employee agrees that any other Intellectual Property Rights developed by the Employee for the fulfilment of tasks assigned by the\nCompany or primarily by using the Company’s material and technical resources during the term of the Employment Agreement shall\nvest in the Company.\n(6) In deciding the salary and welfare benefits payable to the Employee, the Company has taken into account, and such salary and welfare\nbenefits include, rewards for the Employee’s contribution to the Intellectual Property Rights. The Employee hereby agrees that it shall\nnot be entitled to any additional rewards or compensation for the Intellectual Property Rights hereunder from the Company.\n(7) The Employee agrees that any Intellectual Property Rights developed by the Employee related to his original job at the Company or to\nthe task assigned by the Company within one year after the termination of his employment with the Company shall vest in the Company.\n(8) The Employee hereby irrevocably assigns, transfers and conveys to the Company any Intellectual Property Rights which the Employee\ncreates or is involved in creating while employed by the Company (whether or not created during the Company’s regular working hours\nor on the Company’s premises) which do not vest in the Company according to Sections 2.2(2) to (7) above. Further, the Employee\nagrees that he will use his best efforts to protect the benefits the Company may obtain globally as a result of the Intellectual Property\nRights. During the period of his employment with the Company and after he leaves the employment of the Company, the Employee\nshall, at the Company’s request in writing from time to time and provided that the Company bears all the reasonable expenses, execute\nall such further documents and do all such further acts or things as may be necessary inside or outside the PRC to vest all right, title and\ninterest in such Intellectual Property Rights referred to in this Section 2.2(8) in the Company (including assisting the Company in\nhandling all related applications, registration formalities or other legal formalities (including serving as a witness at court)).\n(9) The Employee understands that Intellectual Property Rights developed by the Employee prior to the commencement of the term of the\nEmployment Agreement shall not be subject to Section 2.2(7), and at the written request of the Company from time to time, the\nEmployee will provide the Company with the related information to show that the relevant Intellectual Property Rights have been\ndeveloped prior to the commencement of the term of the Employment Agreement.\n(10) The Employee agrees that if the Intellectual Property Rights generated during the Employee’s employment and reduced into written\nrecords, including words, drafts, blueprints, notes, notebooks, drawings, schematics, prototypes, magnetically encoded media, or any\nrelated materials, such written records, shall be deemed to be the Company’s property. The Employee undertakes that during the term of\nthe Employment Agreement and at any time thereafter, he will not disclose the contents of any of such written records to any persons\nunless authorized by the Company in writing.\n5\nARTICLE 3 NON-COMPETITION\n3.1 Definition\n“Competitive Position” shall mean serving in a senior management capacity, as an employee, consultant, advisor or otherwise, for any person\nthat engages in a business similar to the business of the Company or any of its Affiliates as conducted or as intended to be conducted on or\nprior to the end of the Term, including, without limitation, any real estate investment, ownership, acquisition, sale, renting, leasing,\ndevelopment and/or management in the PRC.\n3.2 Non-Competition by the Employee\n(1) The Employee hereby irrevocably represents and warrants that during the period of the Employee’s employment with the Company and\nwithin two (2) years after the Employee leaves his/her post, without regard for the reason, the Employee shall not, directly or indirectly,\nand whether or not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner,\npartner, shareholder, investor, or in any other capacity (except in the capacity of an employee of the Company acting for the benefit of\nthe Company):\n(a)\nserve in a Competitive Position;\n(b) assist in any way any person or entity whose activities are competitive with or otherwise adverse to the Company’s own business\nactivities; or\n(c)\nengage in activities contrary or harmful to the interest of the Company or any of its affiliates, including but not limited to\n(i) employing or recruiting any present, former or future employee of the Company or any of its affiliates to serve in a\nCompetitive Position; (ii) owning equity in any other company that is in a business similar to the business of the Company or any\nof its Affiliates as conducted or as intended to be conducted on or prior to the end of the Term, including, without limitation, any\nreal estate investment, ownership, acquisition, sale, renting, leasing, development and/or management in the PRC, provided that\nthe ownership of less than five per cent (5%) of the outstanding capital stock of any publicly-traded company, and the ownership\nby Employee of such other investments, if any, as previously approved by the Company in accordance with the Company’s\napplicable policies, shall not constitute a violation of this provision; (iii) disclosing or misusing any Confidential Information; or\n(iv) participating in a hostile takeover attempt of the Company or any of its affiliates.\n(2) The Company may, at any time either before or after the expiry or termination of the Employment Agreement, shorten, or waive, the\nperiod for its non-competition obligation under Section 3.2 (1) above by giving notice to the Employee thereof. If, at any time either\nbefore or after the expiry or termination of the Employment Agreement, the Company does not require the Employee to perform any\nnon-competition obligations hereunder, the period for the non-competition obligation may be shortened to zero, and the Company does\nnot need to pay any economic compensation to the Employee.\n6\n(3) In consideration of the Employee’s performance of the provisions under Section 3.2 (1) above, the Company shall, from the day\nthe Employee leaves the employment of the Company, pay to the Employee the economic compensation relating to the non-\ncompetition in compliance with applicable laws and regulations, for the enforcement of such restriction of non-competition herein\nagainst the Employee, provided that such restriction can be waived in writing by the Company in its sole discretion.\n(4) Upon receipt of each payment from the Company, the Employee shall provide the Company with a receipt recording the payment\ndate signed by the Employee.\n(5) If the Company breaches the provisions of this Agreement by failing to pay to the Employee the economic compensation in a full\nand timely manner as set out in Section 3.2(3) above (unless otherwise notified pursuant to Section 3.2(2)) for a period of 30 days\nafter receipt of the Employee’s written notice, the Employee shall be discharged from his/her obligations under Section 3.2(1)\nabove.\n3.3 Non-Solicitation\nThe Employee agrees that, while employed by the Company and for a period of two (2) years after the date of termination of the employment\nrelationship, without regard to the reason, if any, such employment shall terminate, the Employee will not, directly or indirectly, and whether\nor not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner, partner, shareholder,\ninvestor, or in any other capacity:\n(1) induce or attempt to induce any employee, consultant, sales agent, supplier, customer or independent contractor of the Company to end\nhis or her relationship with the Company; or\n(2) employ, retain as a consultant or contractor, or cause to be so employed or retained, any employee (or former employee within two years\nafter the date such former employee ceases to be employed by the Company), consultant, sales agent, or independent contractor of the\nCompany; or\n(3) accept or solicit investment capital, directly or indirectly, from any individual (other than the general public) or entity, or from an officer,\npartner, or principal of any entity, from which the Company has accepted investment capital, or with which, prior to the Employee’s\ntermination date, the Company has held discussions regarding the possibility of securing investment capital; or\n(4) enter into or attempt to enter into a business relationship with any individual or entity with which, prior to the Employee’s termination\ndate, the Company had a business relationship, or with which, prior to the Employee’s termination date, the Company had held\ndiscussions regarding the possibility of entering into such an relationship, if such relationship would be competitive with or otherwise\ndeleterious to the interests of the Company; or\n7\n(5) do or say anything which is harmful to the reputation of the Company, or which may lead any person to cease to deal with the Company\non substantially equivalent terms as before or at all.\nARTICLE 4 MISCELLANEOUS\n4.1 Scope of Restrictions\nThe Employee’s covenants and restrictions of confidentiality, intellectual property and non-competition as contained in Articles 1, 2 and 3\nhereof shall extend to and for the benefit of the Company and its affiliate companies and to the nature and extent of their respective businesses,\nthroughout the term of Employee’s employment with the Company. Where reference is made to the business of the Company, such term shall\ninclude any business of the Company and its affiliated companies.\n4.2 Governing Law\nThis Agreement, and all matters relating hereto, including any matter or dispute arising out of the Agreement, shall be interpreted, governed,\nand enforced according to the laws of the State of New York.\n4.3 Injunctive Relief\nEmployee acknowledges that the Company will be irreparably injured if Employee violates this Agreement, that monetary damages will not be\nsufficient to compensate the Company and that the Company will be entitled to a court order enjoining any such violation without the posting\nof any bond.\n4.4 Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns,\nprovided that Employee may not assign any part of this Agreement without the Company’s prior written consent.\n4.5 Entire Agreement; Amendment\nThis Agreement is the entire agreement of the parties with respect to the subject matter hereof and may not be modified, amended, terminated,\nor waived, in whole or in part, except by written agreement of the parties hereto.\n4.6 Severability\nIf for any reason any part of this Agreement shall be held invalid, its invalidity shall not affect any other provision of this Agreement that can\nbe given effect without the invalid provision, and the parties shall in good faith seek to replace such provision with another provision that is\nvalid and that to the maximum extent possible achieves the intent and purposes of the original provision.\n8\n4.7 Notices\nNotices under this Agreement shall be given in writing to the relevant Party at the address stated herein (or to such other address as it shall\nhave notified the other Party previously in writing).\nIf to the Company:\nXinyuan Real Estate Co., Ltd.\n18 Xinyuan Road, Zhengzhou, Henan 450011, PRC\nFax: 86 371 6565 1686\nAttention: Yong Zhang\nIf to the Employee:\n[Name]\n[Address]\n4.8 Survival of Agreement\nThis Agreement shall survive the termination of the Employment Agreement and the Employee shall be liable for any damages suffered by the\nCompany as a result of a breach of this Agreement.\n[Signature page follows]\n9\nIN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement to be executed as of the day and year first above written.\nXINYUAN REAL ESTATE CO., LTD.\nBy\nName: Yong Zhang\nTitle: Chairman and Chief Executive Officer\nDate:\n[Name of Employee]\nDate:\n10
116d39507d6bb61c0dec66872bd13e1c.pdf	effective_date jurisdiction party	COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJohn J. Donahoe II (“Employee”)\nNIKE, Inc., and its parent, divisions, subsidiaries and affiliates (“NIKE” or the “Company”, and together with Employee, the\n“Parties”)\nDATE: October 17, 2019\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement (the “Agreement”) is executed upon Employee’s bona\nfide advancement with NIKE and is a condition of such advancement and is effective as of January 13, 2020. Employee\nacknowledges that he was informed in a written job offer at least two weeks before starting work in his new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB. Over the course of Employee’s employment with NIKE, Employee will be or has been exposed to and is in a position to\ndevelop confidential information particular to NIKE’s business and not generally known to the public as defined below\n(“Protected Information”). It is anticipated that Employee will continue to be exposed to Protected Information of greater\nsensitivity, and this Agreement will remain in effect until Employee leaves the Company or it is superseded by a new written\nagreement executed by the Parties.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe\ndamage to NIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE’s\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the Parties agree as follows:\n1. Covenant Not to Compete.\n1.1 Competition Restriction. During Employee’s employment by NIKE, under the terms of any offer letter,\nemployment contract or otherwise, and for eighteen (18) months thereafter (the “Restriction Period”), Employee will not\ndirectly or indirectly own, manage, control, or participate in the ownership, management or control of, or be employed by,\nconsult for, or be connected in any manner with, any business engaged anywhere in the world in the athletic footwear, athletic\napparel or sports equipment, sports electronics/technology and sports accessories business, or any other business that directly\ncompetes with NIKE or any of its parent, subsidiary or affiliated corporations (“Competitor”). This provision is subject to\nNIKE’s option to waive all or any portion of the Restriction Period as more specifically provided below.\n1.2 Extension of Time. In the event that Employee breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through\nprivate settlement, judicial or other action, including all appeals. The Restriction Period shall continue upon the effective date\nof any such settlement, judicial or other resolution. NIKE shall not be obligated to pay Employee the additional compensation\ndescribed in paragraph 1.5 below for any period of time in which this Agreement is tolled due to Employee's breach. In the\nevent Employee receives such additional compensation for any such breach, Employee shall immediately reimburse NIKE in\nthe amount of all such compensation upon the receipt of a written request by NIKE.\n1.3 Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving Employee seven (7) days’ prior written notice of such\nelection; provided, however, unless Employee is terminated for Cause (as defined below), any waiver of the Restriction Period\nmust be with the consent of Employee. In the event all or a portion of the Restriction Period is waived or the definition of\nCompetitor is limited, NIKE shall not be obligated to pay Employee for any period of time as to which the covenant not to\ncompete has been waived.\n1.4 Definition of “Cause”. For purposes of this Agreement, the Company will have “Cause” to terminate Employee’s\nemployment upon Employee’s:\n(a)conviction or plea of guilty or no contest to (i) any felony or (ii) a misdemeanor charge involving fraud, false\nstatements or misleading omissions, wrongful taking, embezzlement, bribery, forgery, counterfeiting or\nextortion;\n(b)willful conduct that is or may reasonably be expected to cause material financial or reputational harm to the\nCompany (regardless of whether such conduct occurred during or prior to Employee’s employment with the\nCompany);\n(c)continued failure to substantially perform Employee’s duties that Employee fails to remedy to the reasonable\nsatisfaction of the Company within thirty (30) days after written notice is delivered by the Company to\nEmployee that sets forth in reasonable detail the basis of Employee’s failure to substantially perform\nEmployee’s duties;\n(d)violation of the Company’s material policies (including, but not limited to, the Company’s policies pertaining to\nnon-discrimination, anti-harassment and insider trading);\n(e)(i) obstruction, (ii) attempts to influence, obstruct or impede or (iii) failure to materially cooperate with an\ninvestigation authorized by the Board of Directors of the Company (the “Board”), a self-regulatory organization\nempowered with self-regulatory responsibilities under federal or state laws or a governmental department or\nagency (an “Investigation”); or\n(f)willful withholding, removal, concealment, destruction, alteration or falsification of any material which is\nrequested in connection with an Investigation, or attempt to do so or solicitation of another to do so.\n1.5 Additional Consideration.\n(a)As additional consideration for the covenant not to compete described above, should NIKE terminate\nEmployee’s employment without Cause and elect to enforce the non-competition agreement, NIKE shall\n(subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twelfth (1/12) of\nEmployee’s then current Annual NIKE Income (defined herein to mean base salary and annual Performance\nSharing Plan bonus calculated at 100% of\n-2-\nEmployee’s last targeted rate) while the Restriction Period is in effect. Except where prohibited by law, if\nNIKE terminates Employee for Cause, no additional consideration will be owed to Employee under this\nAgreement, and the covenant not to compete will remain enforceable. Nothing in this paragraph or Agreement\nalters the employment-at-will relationship between NIKE and Employee.\nIf Employee voluntarily terminates employment and NIKE elects to enforce the non-competition agreement,\nNIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twenty-fourth\n(1/24) of Employee’s then-current Annual NIKE Income while the Restriction Period is in effect.\nSubject to subparagraph (b) below, payments during the Restriction Period shall be payable monthly on the\nlast business day of the month in accordance with NIKE’s payroll practices.\n(b)Section 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in\nsubparagraph (a) above may not commence until six months after Employee’s “separation from service” as\ndefined in Treasury Regulations § 1.409A-1(h). Failure to follow this requirement will result in substantial tax\npenalties to Employee. Accordingly, the commencement of these payments will be delayed until after the\nsix-month period following Employee’s separation from service in order to comply with Section 409A and avoid\ntax penalties for Employee. All payments that Employee would otherwise have received before the date that is\nsix months after Employee’s separation from service will be accumulated by NIKE and paid to Employee in a\nlump sum promptly following the end of the six-month period, together with interest at a fluctuating rate per\nannum equal to the prime rate as published from time to time in The Wall Street Journal on these delayed\npayments from the date otherwise payable under subparagraph (a) until the date actually paid.\n1.6 Withholding and Offset. NIKE reserves the right to withhold from additional consideration payable to Employee\nall federal, state and local taxes as shall be required, as well as any other amounts authorized or required by NIKE policy.\nNIKE reserves the right, exercisable in its sole discretion, to reduce the amount of additional consideration by amounts that\nEmployee owes NIKE, including but not limited to any payments due to NIKE in accordance with the NIKE Tax Equalization\nPolicy if Employee is employed as a transferee during his employment with NIKE. Employee agrees that notwithstanding the\namount of any withholding and/or offset, even in an amount that reduces payments of additional consideration to zero dollars\n($0.00), the covenant not to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts\nthat Employee owes to NIKE, Employee remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. Employee agrees to notify NIKE at the time of separation of employment of the name of\nEmployee’s new employer, if known. Employee further agrees to disclose to NIKE the name of any subsequent employer\nduring the Restriction Period, wherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n3.1 Protectable Information Defined. “Protected Information” shall mean all proprietary information, in whatever form\nand format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep confidential.\nEmployee agrees that any and all information to which Employee has access concerning NIKE projects and internal NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and\nwhether designated as confidential or unmarked. Without limiting the foregoing, Protected Information includes trade secrets\nand competitively sensitive\n-3-\nbusiness or professional information (regardless of whether such information constitutes a trade secret) relating to NIKE’s\nresearch and development activities, its intellectual property and the filing or pendency of patent applications, trade secrets,\nconfidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract factory lists,\npricing information, manufacturing plans, business and marketing plans or strategy, product development plans, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and\npersonnel information.\n3.2 Excluded Information. Notwithstanding paragraph 3.1, Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of the Employee. Specifically, Employee shall be\npermitted to retain as part of his personal portfolio copies of Employee’s original artwork and designs, provided the artwork or\ndesigns have become part of the public domain. In any dispute between the Parties with respect to this exclusion, the burden of\nproof shall be on Employee and such proof will be by clear and convincing evidence.\n3.3 Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEmployee shall hold in confidence and protect all Protected Information and shall not, at any time, directly or indirectly, use\nany Protected Information for any purpose outside the scope of Employee’s employment with NIKE or disclose any Protected\nInformation to any third person or organization without the prior written consent of NIKE. Specifically, but not by way of\nlimitation, Employee shall not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other use\nwhatsoever of any Protected Information without the prior written consent of NIKE. Employee shall also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or disclosure, intentional or\ninadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at any time, and in any event, upon termination of employment,\nEmployee shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings,\ndigital files or other media containing Protected Information, and all copies thereof, then in Employee’s possession or under\nEmployee’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, Employee shall notify NIKE immediately\nif Employee becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person\nemployed or not employed by NIKE at the time of such possession, use or knowledge. Employee shall cooperate with NIKE in\nthe investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by\nNIKE to protect the Protected Information. NIKE shall provide reasonable reimbursement to Employee for each hour so\nengaged and that amount shall not be diminished by operation of any payment under paragraph 1.5 of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, Employee shall not\ndirectly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other\ncompany or business organization, any NIKE employee, whether or not such employee is a full-time employee or temporary\nemployee and whether or not such employment is pursuant to a written agreement or is at will or any independent contractor\nworking for NIKE.\n7. Accounting of Profits. Employee agrees that, if Employee should violate any term of this Agreement, NIKE shall be\nentitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits that Employee\ndirectly or indirectly has realized and/or may realize as a result of or in connection with any such violation (including return of\nany additional consideration paid by NIKE pursuant to paragraph 1.5 above). Such remedy shall be in addition to and not in\nlimitation of any injunctive relief or other rights or remedies to which NIKE may be entitled at law or in equity.\n-4-\n8. General Provisions.\n8.1 Survival. This Agreement shall continue in effect after the termination of Employee’s employment, regardless of\nthe reason for termination.\n8.2 Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement shall be\neffective unless executed in writing by both Parties. No written waiver shall excuse the performance of any act other than the\nact or acts specifically referred to therein.\n8.3 Severability. Each provision herein shall be treated as a separate and independent clause and unenforceability of\nany one clause shall in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be\nfound to be unreasonable or invalid by a court of competent jurisdiction, such provision shall be enforceable to the maximum\nextent enforceable by the law of that jurisdiction.\n8.4 Applicable Law and Jurisdiction. This Agreement, and Employee’s employment hereunder, shall be construed\naccording to the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and\nfederal courts located in Oregon.\n***\n-5-\nEmployee\nBy: _______________________________\nName: John J. Donahoe II\nNIKE, Inc.\nBy: _______________________________\nName: Monique Matheson\nTitle: EVP, Global Human Resources\n[Signature page to Covenant Not to Compete]	COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJohn]. Donahoe II (”Employee")\nNIKE, Inc., and its parent, divisions, subsidiaries and affiliates (”NIKE" or the ”Company", and together with Employee, the\n"Parties")\nDATE: October17, 2019\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement (the ”Agreement") is executed upon Employee’s bona\nfide advancement with NIKE and is a condition of such advancement and is effective as of January 13, 2020. Employee\nacknowledges that he was informed in a written job offer at least two weeks before starting work in his new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB. Over the course of Employee’s employment with NIKE, Employee will be or has been exposed to and is in a position to\ndevelop confidential information particular to NIKE’s business and not generally known to the public as defined below\n(”Protected Information”). It is anticipated that Employee will continue to be exposed to Protected Information of greater\nsensitivity, and this Agreement will remain in effect until Employee leaves the Company or it is superseded by a new written\nagreement executed by the Parties.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe\ndamage to NIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE’s\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the Parties agree as follows:\n1. Covenant Not to Compete.\n1.1 Competition Restriction. During Employee’s employment by NIKE, under the terms of any offer letter,\nemployment contract or otherwise, and for eighteen (18) months thereafter (the ”Restriction Period”), Employee will not\ndirectly or indirectly own, manage, control, or participate in the ownership, management or control of, or be employed by,\nconsult for, or be connected in any manner with, any business engaged anywhere in the world in the athletic footwear, athletic\nappaIel or sports equipment, sports electronics/technology and sports accessories business, or any other business that directly\ncompetes with NIKE or any of its parent, subsidiary or affiliated corporations ("Competito ’). This provision is subject to\nNIKE’s option to waive all or any portion of the Restriction Period as more specifically provided below.\n1.2 Extension of Time. In the event that Employee breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through\nprivate settlement, judicial or other action, including all appeals. The Restriction Period shall continue upon the effective date\nof any such settlement, judicial or other resolution. NIKE shall not be obligated to pay Employee the additional compensation\ndescribed in paragraph 1.5 below for any period of time in which this Agreement is tolled due to Employee's breach. In the\nevent Employee receives such additional compensation for any such breach, Employee shall immediately reimburse NIKE in\nthe amount of all such compensation upon the receipt of a written request by NIKE.\n1.3 Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving Employee seven (7) days’ prior written notice of such\nelection; provided, however, unless Employee is terminated for Cause (as defined below), any waiver of the Restriction Period\nmust be with the consent of Employee. In the event all or a portion of the Restriction Period is waived or the definition of\nCompetitor is limited, NIKE shall not be obligated to pay Employee for any period of time as to which the covenant not to\ncompete has been waived.\n \n1.4 Definition of ”Cause". For purposes of this Agreement, the Company will have ”Cause" to terminate Employee’s\nemployment upon Employee’ s:\n(abonviction or plea of guilty or no contest to (i) any felony or (ii) a misdemeanor charge involving fraud, false\nstatements or misleading omissions, wrongful taking, embezzlement, bribery, forgery, counterfeiting or\nextortion;\n(b)/villful conduct that is or may reasonably be expected to cause material financial or reputational harm to the\nCompany (regardless of whether such conduct occurred during or prior to Employee’s employment with the\nCompany);\n(cbontinued failure to substantially perform Employee’s duties that Employee fails to remedy to the reasonable\nsatisfaction of the Company within thirty (30) days after written notice is delivered by the Company to\nEmployee that sets forth in reasonable detail the basis of Employee’s failure to substantially perform\nEmployee’s duties;\n(d)/iolation of the Company’s material policies (including, but not limited to, the Company’s policies pertaining to\nnon-discrimination, anti-harassment and insider trading);\n(eIi) obstruction, (ii) attempts to influence, obstruct or impede or (iii) failure to materially cooperate with an\ninvestigation authorized by the Board of Directors of the Company (the "Board"), a self-regulatory organization\nempowered with self-regulatory responsibilities under federal or state laws or a governmental department or\nagency (an ” nvestigation”); or\n(f)willful withholding, removal, concealment, destruction, alteration or falsification of any material which is\nrequested in connection with an Investigation, or attempt to do so or solicitation of another to do so.\n1.5 A dditional Consideration.\n(a)L\s additional consideration for the covenant not to compete described above, should NIKE terminate\nEmployee’s employment without Cause and elect to enforce the non-competition agreement, NIKE shall\n(subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twelfth (1/12) of\nEmployee’s then current Annual NIKE Income (defined herein to mean base salary and annual Performance\nSharing Plan bonus calculated at 100% of\nEmployee’s last targeted rate) while the Restriction Period is in effect. Except where prohibited by law, if\nNIKE terminates Employee for Cause, no additional consideration will be owed to Employee under this\nAgreement, and the covenant not to compete will remain enforceable. Nothing in this paragraph or A greement\nalters the employment-at-will relationship between NIKE and Employee.\nIf Employee voluntarily terminates employment and NIKE elects to enforce the non-competition agreement,\nNIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twenty-fourth\n(1/24) of Employee’s then-current Annual NIKE Income while the Restriction Period is in effect.\nSubject to subparagraph (b) below, payments during the Restriction Period shall be payable monthly on the\nlast business day of the month in accordance with NIKE’s payroll practices.\n(bBection 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in\nsubparagraph (a) above may not commence until six months after Employee’s ”separation from service” as\ndefined in Treasury Regulations § 1.409A-1(h). Failure to follow this requirement will result in substantial tax\npenalties to Employee. A ccordingly, the commencement of these payments will be delayed until after the\nsix-month period following Employee’s separation from service in order to comply with Section 409A and avoid\ntax penalties for Employee. All payments that Employee would otherwise have received before the date that is\nsix months after Employee’s separation from service will be accumulated by NIKE and paid to Employee in a\nlump sum promptly following the end of the six-month period, together with interest at a fluctuating rate per\nannum equal to the prime rate as published from time to time in The Wall Street] ournal on these delayed\npayments from the date otherwise payable under subparagraph (a) until the date actually paid.\n1.6 Withholding and Offset. NIKE reserves the right to withhold from additional consideration payable to Employee\nall federal, state and local taxes as shall be required, as well as any other amounts authorized or required by NIKE policy.\nNIKE reserves the right, exercisable in its sole discretion, to reduce the amount of additional consideration by amounts that\nEmployee owes NIKE, including but not limited to any payments due to NIKE in accordance with the NIKE Tax Equalization\nPolicy if Employee is employed as a transferee during his employment with NIKE. Employee agrees that notwithstanding the\namount of any withholding and/0r offset, even in an amount that reduces payments of additional consideration to zero dollars\n($0.00), the covenant not to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts\nthat Employee owes to NIKE, Employee remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. Employee agrees to notify NIKE at the time of separation of employment of the name of\nEmployee’ s new employer, if known. Employee further agrees to disclose to NIKE the name of any subsequent employer\nduring the Restriction Period, wherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure A greement.\n3.1 Protectable Information Defined. "Protected Information” shall mean all proprietary information, in whatever form\nand format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep confidential.\nEmployee agrees that any and all information to which Employee has access concerning NIKE projects and internal NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and\nwhether designated as confidential or unmarked. Without limiting the foregoing, Protected Information includes trade secrets\nand competitively sensitive\nbusiness or professional information (regardless of whether such information constitutes a trade secret) relating to NIKE’s\nresearch and development activities, its intellectual property and the filing or pendency of patent applications, trade secrets,\nconfidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract factory lists,\npricing information, manufacturing plans, business and marketing plans or strategy, product development plans, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and\npersonnel information.\n3.2 Excluded Information. Notwithstanding paragraph 3.1, Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of the Employee. Specifically, Employee shall be\npermitted to retain as part of his personal portfolio copies of Employee’s original artwork and designs, provided the artwork or\ndesigns have become part of the public domain. In any dispute between the Parties with respect to this exclusion, the burden of\nproof shall be on Employee and such proof will be by clear and convincing evidence.\n3.3 Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEmployee shall hold in confidence and protect all Protected Information and shall not, at any time, directly or indirectly, use\nany Protected Information for any purpose outside the scope of Employee’s employment with NIKE or disclose any Protected\nInformation to any third person or organization without the prior written consent of NIKE. Specifically, but not by way of\nlimitation, Employee shall not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other use\nwhatsoever of any Protected Information without the prior written consent of NIKE. Employee shall also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or disclosure, intentional or\ninadvertent, of Protected Information in violation of this A greement.\n4. Return of Protected Information. At the request of NIKE at any time, and in any event, upon termination of employment,\nEmployee shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings,\ndigital files or other media containing Protected Information, and all copies thereof, then in Employee’s possession or under\nEmployee’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, Employee shall notify NIKE immediately\nif Employee becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person\nemployed or not employed by NIKE at the time of such possession, use or knowledge. Employee shall cooperate with NIKE in\nthe investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by\nNIKE to protect the Protected Information. NIKE shall provide reasonable reimbursement to Employee for each hour so\nengaged and that amount shall not be diminished by operation of any payment under paragraph 1.5 of this A greement.\n6. Non-Recruitment. During the term of this A greement and for a period of one (1) year thereafter, Employee shall not\ndirectly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other\ncompany or business organization, any NIKE employee, whether or not such employee is a full-time employee or temporary\nemployee and whether or not such employment is pursuant to a written agreement or is at will or any independent contractor\nworking for NIKE.\n7. Accounting of Profits. Employee agrees that, if Employee should violate any term of this Agreement, NIKE shall be\nentitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits that Employee\ndirectly or indirectly has realized and/or may realize as a result of or in connection with any such violation (including return of\nany additional consideration paid by NIKE pursuant to paragraph 1.5 above). Such remedy shall be in addition to and not in\nlimitation of any injunctive relief or other rights or remedies to which NIKE may be entitled at law or in equity.\n8. G eneral Provisions.\n8.1 Survival. This A greement shall continue in effect after the termination of Employee’ s employment, regardless of\nthe reason for termination.\n8.2 Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement shall be\neffective unless executed in writing by both Parties. No written waiver shall excuse the performance of any act other than the\nact or acts specifically referred to therein.\n8.3 Severability. Each provision herein shall be treated as a separate and independent clause and unenforceability of\nany one clause shall in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be\nfound to be unreasonable or invalid by a court of competent jurisdiction, such provision shall be enforceable to the maximum\nextent enforceable by the law of that jurisdiction.\n8.4 Applicable Law and urisdiction. This Agreement, and Employee’s employment hereunder, shall be construed\naccording to the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this A greement shall lie in the state and\nfederal courts located in Oregon.\nEmployee\nBy:\n \nName: John]. Donahoe II\nNIKE, Inc.\nBy:\n \nName: Monique Matheson\nTitle: EV P, Global Human Resources\n[Signature page to Covenant Not to Compete]	COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJohn J. Donahoe II ("Employee")\nNIKE, Inc., and its parent, divisions, subsidiaries and affiliates ("NIKE" or the "Company", and together with Employee, the\n"Parties")\nDATE: October 17, 2019\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure A greement (the "Agreement") is executed upon Employee's bona\nfide advancement with NIKE and is a condition of such advancement and is effective as of January 13, 2020. Employee\nacknowledges that he was informed in a written job offer at least two weeks before starting work in his new position that this\nCovenant Not to Compete and Non-Disclosure A greement is required and is a condition of advancement.\nB. Over the course of Employee's employment with NIKE, Employee will be or has been exposed to and is in a position to\ndevelop confidential information particular to NIKE's business and not generally known to the public as defined below\n("Protected Information"). It is anticipated that Employee will continue to be exposed to Protected Information of greater\nsensitivity, and this A greement will remain in effect until Employee leaves the Company or it is superseded by a new written\nagreement executed by the Parties\nC. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe\ndamage to NIKE and be difficult to measure.\nD.\nNIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE's\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the Parties agree as follows:\n1. Covenant Not to Compete.\n1.1 Competition Restriction. During Employee's employment by NIKE, under the terms of any offer letter,\nemployment contract or otherwise, and for eighteen (18) months thereafter (the "Restriction Period"), Employee will not\ndirectly or indirectly own, manage, control, or participate in the ownership, management or control of, or be employed by,\nconsult for, or be connected in any manner with, any business engaged anywhere in the world in the athletic footwear, athletic\napparel or sports equipment, sports electronics/technology and sports accessories business, or any other business that directly\ncompetes with NIKE or any of its parent subsidiary or affiliated corporations ("Competitor"). This provision is subject to\nNIKE's option to waive all or any portion of the Restriction Period as more specifically provided below.\n1.2 Extension of Time. In the event that Employee breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through\nprivate settlement, judicial or other action, including all appeals. The Restriction Period shall continue upon the effective date\nof\nany\nsuch settlement, judicial or other resolution. NIKE shall not be obligated to pay Employee the additional compensation\ndescribed in paragraph 1.5 below for any period of time in which this A greement is tolled due to Employee's breach In the\nevent Employee receives such additional compensation for any such breach, Employee shall immediately reimburse NIKE in\nthe amount of all such compensation upon the receipt of a written request by NIKE.\n1.3 Naiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving Employee seven (7) days' prior written notice of such\nelection provided, however, unless Employee is terminated for Cause (as defined below), any waiver of the Restriction Period\nmust be with the consent of Employee. In the event all or a portion of the Restriction Period is waived or the definition of\nCompetitor is limited, NIKE shall not be obligated to pay Employee for any period of time as to which the covenant not to\ncompete has been waived.\n1.4 Definition of "Cause" For purposes of this A greement, the Company will have "Cause" to terminate Employee's\nemployment upon Employee's\n(abonviction or plea of guilty or no contest to (i) any felony or (ii) a misdemeanor charge involving fraud, false\nstatements or misleading omissions, wrongful taking, embezzlement, bribery, forgery, counterfeiting or\nextortion;\n(bwillful conduct that is or may reasonably be expected to cause material financial or reputational harm to the\nCompany (regardless of whether such conduct occurred during or prior to Employee's employment with the\nCompany);\n(ccontinued failure to substantially perform Employee's duties that Employee fails to remedy to the reasonable\nsatisfaction of the Company within thirty (30) days after written notice is delivered by the Company to\nEmployee that sets forth in reasonable detail the basis of Employee's failure to substantially perform\nEmployee's duties;\n(dviolation of the Company's material policies (including, but not limited to, the Company's policies pertaining to\nnon-discrimination, anti-harassment and insider trading);\n(e)i) obstruction, (ii) attempts to influence, obstruct or impede or (iii) failure to materially cooperate with an\ninvestigation authorized by the Board of Directors of the Company (the "Board") a self-regulatory organization\nempowered with self-regulatory responsibilities under federal or state laws or a governmental department or\nagency (an "Investigation"); or\nf)willful withholding, removal, concealment, destruction, alteration or falsification of any material which is\nrequested in connection with an Investigation, or attempt to do so or solicitation of another to do so.\n1.5 A dditional Consideration.\n(a) S additional consideration for the covenant not to compete described above, should NIKE terminate\nEmployee's employment without Cause and elect to enforce the non-competition agreement, NIKE shall\n(subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twelfth (1/12) of\nEmployee's then current A nnual NIKE Income (defined herein to mean base salary and annual Performance\nSharing Plan bonus calculated at 100% of\n-2-\nEmployee's last targeted rate) while the Restriction Period is in effect. Except where prohibited by law, if\nNIKE terminates Employee for Cause, no additional consideration will be owed to Employee under this\nA greement, and the covenant not to compete wil remain enforceable. Nothing in this paragraph or A greement\nalters the employment-at-wi relationship between NIKE and Employee.\nIf Employee voluntarily terminates employment and NIKE elects to enforce the non-competition agreement,\nNIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twenty-fourth\n(1/24) of Employee's then-current Annual NIKE Income while the Restriction Period is in effect.\nSubject to subparagraph (b) below, payments during the Restriction Period shall be payable monthly on the\nlast business day of the month in accordance with NIKE's payroll practices.\nbSection 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in\nsubparagraph (a) above may not commence until six months after Employee's "separation from service" as\ndefined in Treasury Regulations S 1.409A-1(h) Failure to follow this requirement will result in substantial tax\npenalties to Employee. A ccordingly, the commencement of these payments will be delayed until after the\nsix-month period following Employee's separation from service in order to comply with Section 409A and avoid\ntax penalties for Employee. All payments that Employee would otherwise have received before the date that is\nsix months after Employee's separation from service will be accumulated by NIKE and paid to Employee in a\nlump sum promptly following the end of the six-month period, together with interest at a fluctuating rate per\nannum equal to the prime rate as published from time to time in The Wall Street ournal on these delayed\npayments from the date otherwise payable under subparagraph (a) until the date actually paid.\n1.6 Withholding and Offset NIKE reserves the right to withhold from additional consideration payable to Employee\nall federal, state and local taxes as shall be required, as well as any other amounts authorized or required by NIKE policy.\nNIKE reserves the right, exercisable in its sole discretion, to reduce the amount of additional consideration by amounts that\nEmployee owes NIKE including but not limited to any payments due to NIKE in accordance with the NIKE Tax Equalization\nPolicy if Employee is employed as a transferee during his employment with NIKE. Employee agrees that notwithstanding the\namount of any withholding and/or offset, even in an amount that reduces payments of additional consideration to zero dollars\n($0.00), the covenant not to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts\nthat Employee owes to NIKE, Employee remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. Employee agrees to notify NIKE at the time of separation of employment of the name of\nEmployee's new employer, if known. Employee further agrees to disclose to NIKE the name of any subsequent employer\nduring the Restriction Period, wherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure A greement.\n3.1 Protectable Information Defined. "Protected Information" shall mean all proprietary information, in whatever form\nand format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep confidential.\nEmployee agrees that any and all information to which Employee has access concerning NIKE projects and internal NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and\nwhether designated as confidential or unmarked. Vithout limiting the foregoing, Protected Information includes trade secrets\nand competitively sensitive\n-3-\nbusiness or professional information (regardless of whether such information constitutes a trade secret) relating to NIKE's\nresearch and development activities, its intellectual property and the filing or pendency of patent applications, trade secrets,\nconfidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract factory lists,\npricing information, manufacturing plans, business and marketing plans or strategy, product development plans, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and\npersonnel information.\n3.2 Excluded Information Notwithstanding paragraph 3.1, Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of the Employee. Specifically, Employee shall be\npermitted to retain as part of his personal portfolio copies of Employee's original artwork and designs, provided the artwork or\ndesigns have become part of the public domain. In any dispute between the Parties with respect to this exclusion the burden of\nproof shall be on Employee and such proof will be by clear and convincing evidence.\n3.3 Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEmployee shall hold in confidence and protect all Protected Information and shall not at any time, directly or indirectly, use\nany Protected Information for any purpose outside the scope of Employee's employment with NIKE or disclose any Protected\nInformation to any third person or organization without the prior written consent of NIKE Specifically but not by way of\nlimitation, Employee shall not ever copy, transmit, reproduce summarize, quote, publish or make any commercial or other use\nwhatsoever of any Protected Information without the prior written consent of NIKE. Employee shall also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or disclosure, intentional or\ninadvertent of Protected Information in violation of this A greement.\n4.\nReturn of Protected Information. At the request of NIKE at any time, and in any event, upon termination of employment\nEmployee shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings,\ndigital files or other media containing Protected Information, and all copies thereof, then in Employee's possession or under\nEmployee's control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, Employee shall notify NIKE immediately\nif\nEmployee becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person\nemployed or not employed by NIKE at the time of such possession, use or knowledge. Employee shall cooperate with NIKE in\nthe investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by\nNIKE\nto\nprotect\nthe\nProtected\nInformation.\nNIKE\nshall\nprovide\nreasonable\nreimbursement\nto\nEmployee\nfor\neach\nhour\nso\nengaged and that amount shall not be diminished by operation of any payment under paragraph 1.5 of this A greement.\n6. Non-Recruitment. During the term of this A greement and for a period of one (1) year thereafter, Employee shall not\ndirectly\nor\nindirectly\nsolicit,\ndivert\nor\nhire\naway\n(or\nattempt\nto\nsolicit,\ndivert\nor\nhire\naway)\nto\nor\nfor\nhimself\nor\nany\nother\ncompany or business organization, any NIKE employee, whether or not such employee is a full-time employee or temporary\nemployee and whether or not such employment is pursuant to a written agreement or is at will or any independent contractor\nworking for NIKE.\n7. ccounting of Profits. Employee agrees that, if Employee should violate any term of this A greement, NIKE shall be\nentitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits that Employee\ndirectly or indirectly has realized and/or may realize as a result of or in connection with any such violation (including return of\nany additional consideration paid by NIKE pursuant to paragraph 1.5 above) Such remedy shall be in addition to and not in\nlimitation of any injunctive relief or other rights or remedies to which NIKE may be entitled at law or in equity.\n-4-\n8. General Provisions.\n8.1 Survival. This A greement shall continue in effect after the termination of Employee's employment regardless of\nthe reason for termination.\n8.2 W Waiver. No waiver, amendment, modification or cancellation of any term or condition of this A greement shall be\neffective unless executed in writing by both Parties. No written waiver shall excuse the performance of any act other than the\nact or acts specifically referred to therein.\n8.3 Severability. Each provision herein shall be treated as a separate and independent clause and unenforceability of\nany\none clause shall in no way impact the enforceability of any other clause. Should any of the provisions in this A greement be\nfound to be unreasonable or invalid by a court of competent jurisdiction, such provision shall be enforceable to the maximum\nextent enforceable by the law of that jurisdiction.\n8.4 A pplicable Law and Jurisdiction. This A greement and Employee's employment hereunder, shall be construed\naccording to the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this A greement shall lie in the state and\nfederal courts located in Oregon.\n-5-\nEmployee\nBy:\nName: John J. Donahoe II\nNIKE, Inc.\nBy:\nName: Monique Matheson\nTitle: EVP, Global Human Resources\n[Signature page to Covenant Not to Compete]	COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJohn J. Donahoe II (“Employee”)\nNIKE, Inc., and its parent, divisions, subsidiaries and affiliates (“NIKE” or the “Company”, and together with Employee, the\n“Parties”)\nDATE: October 17, 2019\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement (the “Agreement”) is executed upon Employee’s bona\nfide advancement with NIKE and is a condition of such advancement and is effective as of January 13, 2020. Employee\nacknowledges that he was informed in a written job offer at least two weeks before starting work in his new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB. Over the course of Employee’s employment with NIKE, Employee will be or has been exposed to and is in a position to\ndevelop confidential information particular to NIKE’s business and not generally known to the public as defined below\n(“Protected Information”). It is anticipated that Employee will continue to be exposed to Protected Information of greater\nsensitivity, and this Agreement will remain in effect until Employee leaves the Company or it is superseded by a new written\nagreement executed by the Parties.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe\ndamage to NIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE’s\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the Parties agree as follows:\n1. Covenant Not to Compete.\n1.1 Competition Restriction. During Employee’s employment by NIKE, under the terms of any offer letter,\nemployment contract or otherwise, and for eighteen (18) months thereafter (the “Restriction Period”), Employee will not\ndirectly or indirectly own, manage, control, or participate in the ownership, management or control of, or be employed by,\nconsult for, or be connected in any manner with, any business engaged anywhere in the world in the athletic footwear, athletic\napparel or sports equipment, sports electronics/technology and sports accessories business, or any other business that directly\ncompetes with NIKE or any of its parent, subsidiary or affiliated corporations (“Competitor”). This provision is subject to\nNIKE’s option to waive all or any portion of the Restriction Period as more specifically provided below.\n1.2 Extension of Time. In the event that Employee breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through\nprivate settlement, judicial or other action, including all appeals. The Restriction Period shall continue upon the effective date\nof any such settlement, judicial or other resolution. NIKE shall not be obligated to pay Employee the additional compensation\ndescribed in paragraph 1.5 below for any period of time in which this Agreement is tolled due to Employee's breach. In the\nevent Employee receives such additional compensation for any such breach, Employee shall immediately reimburse NIKE in\nthe amount of all such compensation upon the receipt of a written request by NIKE.\n1.3 Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving Employee seven (7) days’ prior written notice of such\nelection; provided, however, unless Employee is terminated for Cause (as defined below), any waiver of the Restriction Period\nmust be with the consent of Employee. In the event all or a portion of the Restriction Period is waived or the definition of\nCompetitor is limited, NIKE shall not be obligated to pay Employee for any period of time as to which the covenant not to\ncompete has been waived.\n1.4 Definition of “Cause”. For purposes of this Agreement, the Company will have “Cause” to terminate Employee’s\nemployment upon Employee’s:\n(a)conviction or plea of guilty or no contest to (i) any felony or (ii) a misdemeanor charge involving fraud, false\nstatements or misleading omissions, wrongful taking, embezzlement, bribery, forgery, counterfeiting or\nextortion;\n(b)willful conduct that is or may reasonably be expected to cause material financial or reputational harm to the\nCompany (regardless of whether such conduct occurred during or prior to Employee’s employment with the\nCompany);\n(c)continued failure to substantially perform Employee’s duties that Employee fails to remedy to the reasonable\nsatisfaction of the Company within thirty (30) days after written notice is delivered by the Company to\nEmployee that sets forth in reasonable detail the basis of Employee’s failure to substantially perform\nEmployee’s duties;\n(d)violation of the Company’s material policies (including, but not limited to, the Company’s policies pertaining to\nnon-discrimination, anti-harassment and insider trading);\n(e)(i) obstruction, (ii) attempts to influence, obstruct or impede or (iii) failure to materially cooperate with an\ninvestigation authorized by the Board of Directors of the Company (the “Board”), a self-regulatory organization\nempowered with self-regulatory responsibilities under federal or state laws or a governmental department or\nagency (an “Investigation”); or\n(f)willful withholding, removal, concealment, destruction, alteration or falsification of any material which is\nrequested in connection with an Investigation, or attempt to do so or solicitation of another to do so.\n1.5 Additional Consideration.\n(a)As additional consideration for the covenant not to compete described above, should NIKE terminate\nEmployee’s employment without Cause and elect to enforce the non-competition agreement, NIKE shall\n(subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twelfth (1/12) of\nEmployee’s then current Annual NIKE Income (defined herein to mean base salary and annual Performance\nSharing Plan bonus calculated at 100% of\n-2-\nEmployee’s last targeted rate) while the Restriction Period is in effect. Except where prohibited by law, if\nNIKE terminates Employee for Cause, no additional consideration will be owed to Employee under this\nAgreement, and the covenant not to compete will remain enforceable. Nothing in this paragraph or Agreement\nalters the employment-at-will relationship between NIKE and Employee.\nIf Employee voluntarily terminates employment and NIKE elects to enforce the non-competition agreement,\nNIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twenty-fourth\n(1/24) of Employee’s then-current Annual NIKE Income while the Restriction Period is in effect.\nSubject to subparagraph (b) below, payments during the Restriction Period shall be payable monthly on the\nlast business day of the month in accordance with NIKE’s payroll practices.\n(b)Section 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in\nsubparagraph (a) above may not commence until six months after Employee’s “separation from service” as\ndefined in Treasury Regulations § 1.409A-1(h). Failure to follow this requirement will result in substantial tax\npenalties to Employee. Accordingly, the commencement of these payments will be delayed until after the\nsix-month period following Employee’s separation from service in order to comply with Section 409A and avoid\ntax penalties for Employee. All payments that Employee would otherwise have received before the date that is\nsix months after Employee’s separation from service will be accumulated by NIKE and paid to Employee in a\nlump sum promptly following the end of the six-month period, together with interest at a fluctuating rate per\nannum equal to the prime rate as published from time to time in The Wall Street Journal on these delayed\npayments from the date otherwise payable under subparagraph (a) until the date actually paid.\n1.6 Withholding and Offset. NIKE reserves the right to withhold from additional consideration payable to Employee\nall federal, state and local taxes as shall be required, as well as any other amounts authorized or required by NIKE policy.\nNIKE reserves the right, exercisable in its sole discretion, to reduce the amount of additional consideration by amounts that\nEmployee owes NIKE, including but not limited to any payments due to NIKE in accordance with the NIKE Tax Equalization\nPolicy if Employee is employed as a transferee during his employment with NIKE. Employee agrees that notwithstanding the\namount of any withholding and/or offset, even in an amount that reduces payments of additional consideration to zero dollars\n($0.00), the covenant not to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts\nthat Employee owes to NIKE, Employee remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. Employee agrees to notify NIKE at the time of separation of employment of the name of\nEmployee’s new employer, if known. Employee further agrees to disclose to NIKE the name of any subsequent employer\nduring the Restriction Period, wherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n3.1 Protectable Information Defined. “Protected Information” shall mean all proprietary information, in whatever form\nand format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep confidential.\nEmployee agrees that any and all information to which Employee has access concerning NIKE projects and internal NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and\nwhether designated as confidential or unmarked. Without limiting the foregoing, Protected Information includes trade secrets\nand competitively sensitive\n-3-\nbusiness or professional information (regardless of whether such information constitutes a trade secret) relating to NIKE’s\nresearch and development activities, its intellectual property and the filing or pendency of patent applications, trade secrets,\nconfidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract factory lists,\npricing information, manufacturing plans, business and marketing plans or strategy, product development plans, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and\npersonnel information.\n3.2 Excluded Information. Notwithstanding paragraph 3.1, Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of the Employee. Specifically, Employee shall be\npermitted to retain as part of his personal portfolio copies of Employee’s original artwork and designs, provided the artwork or\ndesigns have become part of the public domain. In any dispute between the Parties with respect to this exclusion, the burden of\nproof shall be on Employee and such proof will be by clear and convincing evidence.\n3.3 Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEmployee shall hold in confidence and protect all Protected Information and shall not, at any time, directly or indirectly, use\nany Protected Information for any purpose outside the scope of Employee’s employment with NIKE or disclose any Protected\nInformation to any third person or organization without the prior written consent of NIKE. Specifically, but not by way of\nlimitation, Employee shall not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other use\nwhatsoever of any Protected Information without the prior written consent of NIKE. Employee shall also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or disclosure, intentional or\ninadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at any time, and in any event, upon termination of employment,\nEmployee shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings,\ndigital files or other media containing Protected Information, and all copies thereof, then in Employee’s possession or under\nEmployee’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, Employee shall notify NIKE immediately\nif Employee becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person\nemployed or not employed by NIKE at the time of such possession, use or knowledge. Employee shall cooperate with NIKE in\nthe investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by\nNIKE to protect the Protected Information. NIKE shall provide reasonable reimbursement to Employee for each hour so\nengaged and that amount shall not be diminished by operation of any payment under paragraph 1.5 of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, Employee shall not\ndirectly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other\ncompany or business organization, any NIKE employee, whether or not such employee is a full-time employee or temporary\nemployee and whether or not such employment is pursuant to a written agreement or is at will or any independent contractor\nworking for NIKE.\n7. Accounting of Profits. Employee agrees that, if Employee should violate any term of this Agreement, NIKE shall be\nentitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits that Employee\ndirectly or indirectly has realized and/or may realize as a result of or in connection with any such violation (including return of\nany additional consideration paid by NIKE pursuant to paragraph 1.5 above). Such remedy shall be in addition to and not in\nlimitation of any injunctive relief or other rights or remedies to which NIKE may be entitled at law or in equity.\n-4-\n8. General Provisions.\n8.1 Survival. This Agreement shall continue in effect after the termination of Employee’s employment, regardless of\nthe reason for termination.\n8.2 Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement shall be\neffective unless executed in writing by both Parties. No written waiver shall excuse the performance of any act other than the\nact or acts specifically referred to therein.\n8.3 Severability. Each provision herein shall be treated as a separate and independent clause and unenforceability of\nany one clause shall in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be\nfound to be unreasonable or invalid by a court of competent jurisdiction, such provision shall be enforceable to the maximum\nextent enforceable by the law of that jurisdiction.\n8.4 Applicable Law and Jurisdiction. This Agreement, and Employee’s employment hereunder, shall be construed\naccording to the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and\nfederal courts located in Oregon.\n***\n-5-\nEmployee\nBy: _______________________________\nName: John J. Donahoe II\nNIKE, Inc.\nBy: _______________________________\nName: Monique Matheson\nTitle: EVP, Global Human Resources\n[Signature page to Covenant Not to Compete]
15398fb3b5f357981a8be88dc4bb376e.pdf	effective_date jurisdiction party term	EX-10.2 3 d56535dex102.htm EX-10.2\nExhibit 10.2\nL. B . FOSTER COMPANY\n415 Holiday Drive Pittsburgh, PA 15220\nCONFIDENTIALITY AGREEMENT\nFebruary 12, 2016\nLegion Partners Asset Management, LLC\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nAttention: Bradley S. Vizi, Managing Director\nLadies and Gentlemen:\nThis letter agreement shall become effective upon its execution following the appointment of the New Director to the Board of Directors\n(the “Board”) of L. B . Foster Company, a Pennsylvania corporation (the “Company”). Capitalized terms used herein but not otherwise defined\nherein shall have the meanings given to such terms in the agreement (the “Board Composition Agreement”), dated as of the date of this letter\nagreement, among the Company and the persons set forth on Schedule A hereto, pursuant to which the Company has agreed to appoint, at the\nrequest and recommendation of the Investor Group, the New Director, to the Board, subject to the covenants and other agreements contained\ntherein. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, during the Standstill\nPeriod (as defined in the Board Composition Agreement) and not at any time thereafter, the New Director may, if and to the extent he or she\ndesires to do so, disclose information, including certain non-public, confidential or proprietary information concerning the Company, that he or\nshe obtains while serving as a member of the Board to each of the persons or entities listed on Schedule B hereto that are and remain\nRepresentatives (as hereinafter defined) of Legion Partners Asset Management, LLC, a Delaware limited liability company (collectively,\n“Legion” or “you”), who need to know such information, and may discuss such information with any and all such Representatives, subject to the\nterms and conditions of this letter agreement; provided, that prior to the disclosure of any Evaluation Material (as hereinafter defined) to any of\nyour Representatives, you must first have received from each Representative (other than your legal advisors at the law firm of Olshan Frome\nWolosky LLP) a written duly executed Representative Undertaking in the form attached hereto as Exhibit A and a copy of such Representative\nUndertaking must be provided to the Company prior to any such disclosure pursuant to the notice provisions in paragraph 17 of this letter\nagreement; provided, further, that the New Director shall be entitled to supplement Schedule B attached hereto upon the Company’s prior written\nconsent (such consent not to be unreasonably withheld) to add any Representatives not now existing or retained, as applicable, so long as such\npersons or entities qualify as such under the terms of this letter agreement and execute a written duly executed Representative Undertaking in the\nform attached hereto as Exhibit A and submitted to the Company in accordance with the terms hereof. In consideration for, and as a condition of,\nsuch information being furnished to you and your Affiliates, Associates, directors, officers, employees, and legal advisors representing you in\nlieu of the law firm of Olshan Frome Wolosky LLP (each a “Representative”, or collectively, the “Representatives”), subject to the restrictions in\nparagraph 2, you agree to treat any and all information concerning or relating to the Company or any of its subsidiaries or affiliates that is\nfurnished to you or your Representatives (regardless of the manner in which it is\n1\nfurnished, including in written or electronic format or orally, gathered by visual inspection or otherwise) by the New Director, or by or on behalf\nof the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof\ncontaining, referring, relating to, based upon or derived from such information, in whole or in part (collectively, “Evaluation Material”), strictly\nconfidential in accordance with the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement, (ii) was within your or any of your\nRepresentatives’ possession on a non-confidential basis prior to its being furnished to you by the New Director, or by or on behalf of the\nCompany or its agents, representatives, attorneys, advisors, directors, officers or employees (each a “Company Representative”, or collectively,\nthe “Company Representatives”), (iii) is received from a source other than the New Director, the Company or any Company representatives, or\n(iv) that you demonstrate to the extent reasonably practicable was independently developed by you or your Representatives without reference to\nor use of the Evaluation Material; provided, that in the case of (ii) or (iii) above, the source of such information was not, to your knowledge,\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n2. You and your Representatives will, and you will cause your Representatives to, (a) keep the Evaluation Material strictly confidential and\n(b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however,\nthat you may only privately disclose any of such information: (A) to your Representatives (i) who need to know such information for the sole\npurpose of advising you on your investment in the Company, (ii) who are informed by you of the confidential nature of such information and\nwho are directed by you to treat the Evaluation Material in a manner that is in strict compliance with the terms of this letter agreement, and\n(iii) who execute in writing a Representative Undertaking in the form attached hereto as Exhibit A; provided, further, that you will be responsible\nfor any violation of this letter agreement by your Representatives as if they were parties to this letter agreement; and (B) to the Company and the\nCompany Representatives. It is understood and agreed that no New Director shall disclose to you or your Representatives any legal or other\nadvice, including, but not limited to, any information that is marked attorney-client work product, attorney-client communication, privileged and\nconfidential or by other words purporting to indicate that the information is subject to the attorney-client privilege or attorney work-product\nprivilege, that may be included in the Evaluation Material with respect to which such disclosure may constitute waiver of the Company’s\nattorney-client privilege or attorney work-product privilege. Notwithstanding this Paragraph 2, your legal advisors at the law firm of Olshan\nFrome Wolosky LLP are not required to execute a Representative Undertaking, provided, however, that you covenant to instruct such counsel to\n(x) hold the Evaluation Material strictly confidential in accordance with the terms of this Agreement and (y) return the Evaluation Material to\nyou (or destroy it) at the conclusion of such law firm’s representation of you in connection with your investment in the Company.\n3. In addition, you agree that, without the prior written consent of the Company and except as otherwise disclosed in this letter agreement,\nyou will not disclose to any other person the fact that the Evaluation Material has been made available to you or any of your Representatives.\n4. Notwithstanding anything herein to the contrary, in the event that you or any of your Representatives are required by applicable law,\nregulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or\n2\nsimilar process) to disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the\nCompany so that it may seek a protective order or other appropriate remedy (and if the Company seeks such an order, you will provide such\ncooperation as the Company shall reasonably request), at its sole cost and expense. Nothing herein shall be deemed to prevent you or your\nRepresentatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that requires discovery, disclosure or\nproduction of the Evaluation Material if (a) after notifying and cooperating with the Company as required above, you produce or disclose only\nthat portion of the Evaluation Material which your outside legal counsel advises you is legally required to be so produced or disclosed and you\ninform the recipient of such Evaluation Material of the existence of this letter agreement and the confidential nature of such Evaluation Material;\nor (b) the Company consents in writing to having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other\nlegal requirement. Unless legally required, in no event will you or any of your Representatives oppose action by the Company to obtain a\nprotective order or other relief to prevent the disclosure of the Evaluation Material or to obtain reliable assurance that confidential treatment will\nbe afforded to the Evaluation Material. For the avoidance of doubt, and notwithstanding anything contained herein to the contrary, disclosures\nmade pursuant hereto shall not be construed to permit disclosures made by you or your Representatives, publicly or privately, whether to the U.S.\nSecurities and Exchange Commission or its Staff, the Company’s shareholders or any other person or entity, in connection with or relating to any\nsolicitation made by you pursuant to Regulation 14A of the Securities Exchange Act of 1934, as amended, or any other state or Federal securities\nlaws applicable to any solicitations of the Company’s shareholders of proxies or other authorizations to vote the shares of a Company shareholder\nor otherwise take any action that any Company shareholder can take.\n5. It is understood and agreed that monetary damages may not be a sufficient remedy for any threatened or actual breach of this letter\nagreement, and that the Company is entitled to seek specific performance and injunctive or other equitable relief in connection with any such\nthreatened or actual breach of this letter agreement. Such remedy shall not be deemed to be the exclusive remedy for breach of this letter\nagreement, but shall be in addition to all other remedies available at law or equity to the Company.\n6. You undertake that you and your Representatives shall inform the Company immediately and in writing of any actual or suspected\nbreach of the obligations imposed under this letter agreement as you may be aware of and provide all possible assistance in order to minimize the\neffects of such breach.\n7. You acknowledge that (a) none of the Company or any Company Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or any Company Representatives shall\nhave any liability to you or to any of your Representatives directly or indirectly relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom.\n8. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of any\ndisclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company.\n9. At any time, upon the request of the Company, you will promptly deliver to the Company or destroy all hard copies of the Evaluation\nMaterial and use commercially reasonable efforts to permanently erase or delete all electronic copies of the Evaluation Material in your or any of\nyour Representatives’ possession or control, whether the Evaluation Material is (i) furnished to you by or on\n3\nbehalf of the Company pursuant hereto or (ii) prepared by you, and no copy thereof in any form shall be retained, provided, however, that you\nand your Representatives shall be permitted to retain such Evaluation Material as is necessary to enable you and your Representatives to comply\nwith any applicable document retention polices or requirements under applicable law or regulation and to retain any computer records and\ncomputer files containing any Evaluation Material if required pursuant to any current automatic archiving and backup procedures; provided,\nhowever, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be, and that any such retained Evaluation\nMaterial shall remain subject to the confidentiality and use restrictions of this letter agreement notwithstanding termination of this letter\nagreement. At the written request of the Company you shall provide the Company with a certificate of compliance with the foregoing sentence\nsigned by you or your chief compliance officer. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your\nRepresentatives will continue to be bound by the obligations contained in this letter agreement.\n10. You hereby acknowledge that you are aware that the United States federal securities laws prohibit any person who has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance upon\nsuch information.\n11. You represent and warrant to the Company that (i) you have all requisite company power and authority to execute and deliver this letter\nagreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by you, and is a\nvalid and binding obligation, enforceable against you in accordance with its terms, (iii) this letter agreement will not result in a violation of any\nterms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license, regulation,\njudgment, order or decree governing or affecting you, and (iv) your entry into this letter agreement does not require approval by any owners or\nholders of any equity or other interest in you (except as has already been obtained).\n12. The Company represents and warrants to you that (i) the Company has all requisite power and authority to execute and deliver this\nletter agreement and to perform its obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by the\nCompany, and is a valid and binding obligation, enforceable against the Company in accordance with its terms, (iii) this letter agreement will not\nresult in a violation of any terms or conditions of any agreements to which the Company is a party or by which the Company may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting the Company, and (iv) the Company’s entry into\nthis letter agreement does not require approval by any owners or holders of any equity or other interest in the Company (except as has already\nbeen obtained).\n13. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a waiver of\nany other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the Company to insist upon\nstrict adherence to any term of this letter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the\nright thereafter to insist upon strict adherence to that term or any other term of this letter agreement.\n14. You acknowledge and agree that the value of the Evaluation Material to the Company is unique and substantial, but may be impractical\nor difficult to assess in monetary terms. You further acknowledge and agree that in the event of an actual or threatened violation of this letter\nagreement, immediate and irreparable harm or injury may be caused for which money damages may not be an\n4\nadequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available to the\nCompany at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter agreement and to\nenforce specifically the terms and provisions of this letter agreement exclusively in the federal or state courts of the Commonwealth of\nPennsylvania located in the City of Pittsburgh. In the event that any action shall be brought in equity to enforce the provisions of this letter\nagreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n15. This letter agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of\nPennsylvania without reference to the choice of laws or conflict of laws principles thereof or of any other jurisdiction to the extent that such\nprinciples would require or permit the application of the laws of another jurisdiction. Each of the parties irrevocably agrees that any legal action\nor proceeding with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any\njudgment in respect of this letter agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or\nassigns, whether in tort or contract or at law or in equity, shall be brought and determined exclusively in the federal or state courts of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh. Each of the parties hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and\nagrees that it will not bring any action relating to this letter agreement in any court other than the aforesaid courts. Each of the parties hereto\nhereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this letter agreement, (a) any claim that it is not\npersonally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property is exempt or immune from\njurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to\njudgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable\nlegal requirements, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit,\naction or proceeding is improper or (iii) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts.\n16. This letter agreement, including the exhibits hereto, and the Agreement contain the entire understanding of the parties with respect to\nthe subject matter of this letter agreement and supersedes all prior and contemporaneous agreements, understandings and representations,\nwhether oral or written, of the parties with respect to the subject matter hereof. There are no restrictions, agreements, promises, representations,\nwarranties, covenants or undertakings between the parties with respect to the subject matter of this letter agreement other than those expressly set\nforth herein or in the Agreement.\n17. Any notices, consents, determinations, waivers or other communications required or permitted to be given under the terms of this letter\nagreement must be in writing and will be deemed to have been delivered: (a) upon receipt, when delivered personally; (b) upon receipt, when\nsent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party);\n(c) upon confirmation of receipt, when sent by email (provided such confirmation is not automatically generated); or (d) one (1) business day\nafter deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The\naddresses and facsimile numbers for such communications shall be:\n5\nIf to the Company:\nL. B . Foster Company\n415 Holiday Drive, Suite 4\nPittsburgh, PA 15220\nFax No.: (412) 928-7891\nEmail: pguinee@lbfoster.com\nAttention: Patrick J. Guinee, Esq., Vice President, General Counsel & Corporate Secretary\nWith a copy to (which shall not constitute notice):\nMorgan, Lewis & Bockius LLP\n1111 Pennsylvania Avenue, NW\nWashington, DC 20004\nFax No.: 202-739-3001\nEmail: kgottfried@morganlewis.com\nAttention: Keith E. Gottfried, Esq.\nIf to Legion or any member thereof:\nLegion Partners Asset Management, LLC\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nFax No.: (424) 234-5123\nEmail: bvizi@legionpartners.com\nAttention: Bradley S. Vizi, Managing Director\nWith a copy (which shall not constitute notice) to:\nOlshan Frome Wolosky LLP\n65 East 55th Street\nNew York, New York 10022\nAttention: Steve Wolosky\nFacsimile: (212) 451-2222\nEmail: swolosky@olshanlaw.com\n18. If any term, provision, covenant or restriction of this letter agreement is held by a court of competent jurisdiction to be invalid, void or\nunenforceable, the remainder of the terms, provisions, covenants and restrictions of this letter agreement shall remain in full force and effect and\nshall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the parties that the parties would\nhave executed the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid,\nvoid or unenforceable. In addition, the parties agree to use commercially reasonable efforts to agree upon and substitute a valid and enforceable\nterm, provision, covenant or restriction for any of such that is held invalid, void or enforceable by a court of competent jurisdiction.\n19. This letter agreement may be executed in two or more counterparts, each of which shall be considered one and the same agreement and\nshall become effective when counterparts have been signed by each of the parties and delivered to the other party (including by means of\nelectronic delivery or facsimile).\n6\n20. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties hereto.\n21. Legion shall cause any replacement director for a New Director appointed to the Board pursuant to the Board Composition Agreement\nwho is an Affiliate or Associate of any Investor or who is employed by or a member of, or directly or indirectly affiliated with, controlled by, or\nunder common control of any Investor, to execute a copy of this letter agreement. For purposes of this letter agreement, any reference to a\n“replacement director” shall be limited to only a replacement director appointed pursuant to the Board Composition Agreement who is an\nAffiliate or Associate of any Investor or is employed by or a member of, or directly or indirectly affiliated with, controlled by, or under common\ncontrol of any Investor. For the avoidance of doubt, no party to this letter agreement or the Board Composition Agreement may share Evaluation\nMaterial with any person appointed to the Board pursuant to the Board Composition Agreement who does not execute a copy of this letter\nagreement or other form of confidentiality agreement with and acceptable to the Company.\n22. The confidentiality obligations set forth in this letter agreement with respect to the confidentiality of information concerning or relating\nto the Company shall remain in full force and effect for as long as such information continues to be deemed Evaluation Material pursuant to the\nterms of this letter agreement; provided, that upon expiration of the Standstill Period, nothing herein shall preclude the Investor Group from\nseeking the election of director candidates or submitting proposals at any meeting of shareholders of the Company, including, without limitation,\nmaking public or private statements relating to the Company if those statements do not reference, include, or incorporate, directly or indirectly,\nthe Evaluation Material in violation of this letter agreement; and provided further that the foregoing provision shall not be deemed and is not\nintended to constitute a waiver of any rights or obligations under this letter agreement. Notwithstanding the foregoing, the Investors and the New\nDirector acknowledge that certain Evaluation Material may constitute trade secrets and other similar information which may be subject to\nstatutory protection under applicable law and nothing herein shall be deemed to waive or otherwise the limit rights of the Company or such\nEvaluation Material to any such protections.\n23. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this letter agreement.\n24. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have\npreceded the execution of this letter agreement, and that it has executed the same with the advice of said counsel. Each party and its counsel\ncooperated and participated in the drafting and preparation of this letter agreement and the documents referred to herein, and any and all drafts\nrelating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in\nthis letter agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto,\nand any controversy over interpretations of this letter agreement shall be decided without regards to events of drafting or preparation. The term\n“including” shall in all instances be deemed to mean “including without limitation.”\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nL. B . FOSTER COMPANY\nBy: /s/ Robert P. Bauer\nName: Robert P. Bauer\nTitle: President & CEO\n[Signature Page to the Confidentiality Agreement]\nAccepted and agreed as of the date first written above:\nLEGION PARTNERS, L.P. I\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS, L.P. II\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS, LLC\nBy: Legion Partners Holdings, LLC\nManaging Member\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\n[Signature Page to the Confidentiality Agreement]\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nBy:\n/s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\nLEGION PARTNERS HOLDINGS, LLC\nBy:\n/s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\n/s/ Christopher S. Kiper\nCHRISTOPHER S. KIPER\n/s/ Raymond White\nRAYMOND WHITE\n/s/ Bradley S. Vizi\nBRADLEY S. VIZI\n/s/ David A. Katz\nDAVID A. KATZ\n/s/ Justin Albert\nJUSTIN ALBERT\n[Signature Page to the Confidentiality Agreement]\nSCHEDULE A\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nBRADLEY S. VIZI\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nSchedule A\nSCHEDULE B\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nBRADLEY S. VIZI\nDAVID A. KATZ\nJUSTIN ALBERT\nOLSHAN FROME WOLOSKY LLP\nEXHIBIT A\nREPRESENTATIVE UNDERTAKING\n(SEE ATTACHED)\nREPRESENTATIVE UNDERTAKING\nEach of [•] [•] (each an “Obligor”), makes this undertaking (“Undertaking”) to, and for the benefit of, L. B . Foster Company, a\nPennsylvania corporation (the “Company”), in consideration of certain confidential information of the Company that Obligor wishes to receive.\n1. Obligor certifies that [•]1 is providing confidential information (“Evaluation Material”) to Obligor under a confidentiality agreement,\ndated February [•], 2016, between Legion Partners, L.P. I, Legion Partners, L.P. II, Legion Partners Special Opportunities, L.P. II,\nLegion Partners, LLC, Legion Partners Asset Management, LLC, Legion Partners Holdings, LLC, Christopher S. Kiper, Raymond\nWhite, Bradley S. Vizi, David A. Katz, Justin Albert (collectively, the Investors”) and the Company (“Confidentiality Agreement”)\nand (ii) Obligor has read the Confidentiality Agreement, understands the terms and conditions of the Confidentiality Agreement and\nagrees to be fully bound by the Confidentiality Agreement. Capitalized terms not otherwise defined in this Undertaking have the\nmeaning ascribed to them in the Confidentiality Agreement.\n2. Obligor agrees that, upon receipt of the Evaluation Material, if not already restricted, it shall automatically become restricted from\ntaking any of the actions that the Investors are restricted from taking with respect to the Company pursuant to the terms of Section 3\nof the Agreement, dated February [•], 2016 (the “Board Composition Agreement”), by and between the Company and the Investors\nwhich agreement provides for, among other things, the appointment of Bradley S. Vizi to the Company’s Board of Directors and\nObligor hereby undertakes to comply with, and be subject to, the terms of Section 3 of the Board Composition Agreement as though\nit was a signatory thereto.\n3. If Obligor is required by law, regulation, regulatory authority, judicial or governmental order or in connection with any interrogatory,\nsubpoena, civil investigatory demand or any similar process relating to any legal proceeding, investigation, hearing or otherwise to\ndisclose in any manner any Information, Obligor covenants to provide the Company with prompt notice (to the extent legally\npermissible) in advance of such disclosure so that the Company may seek, at the Company’s sole expense, a protective order or other\nappropriate remedy, waive compliance with this Paragraph 2 or both. In the event that no protective order or other remedy is\nobtained, or if the Company waives compliance with this Paragraph 2, Obligor covenants to (a) furnish only such Information as\nObligor is advised is legally required and (b) exercise commercially reasonable efforts to obtain assurance that confidential treatment\nwill be accorded to any Information that is compelled to be disclosed.\n4. Obligor (a) consents to submit itself to personal jurisdiction and venue in any action brought in any federal or state court of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh (each, a “Court”) in connection with any matter arising to\n1\nApplicable Legion Entity to be inserted\nenforce any provision of this Undertaking or the Confidentiality Agreement, (b) agrees that it will not attempt to deny or defeat such\npersonal jurisdiction by motion or other request for leave from any Court, (c) agrees that it will not bring any action relating to this\nUndertaking or the Confidentiality Agreement in any court or venue other than a Court, (d) agrees that service of process for\npurposes of proceedings to enforce this Undertaking or the Confidentiality Agreement is effective and proper if delivered by\nregistered or certified mail, and (e) agrees that any breach of this Undertaking or the Confidentiality Agreement may be punishable\nby such relief as deemed appropriate by any Court.\n5. This Undertaking may be modified or waived only by a separate writing executed by Obligor and the Company that expressly\nmodifies or waives this Undertaking. No failure or delay in exercising any right, power or privilege under this Undertaking will\noperate as a waiver of any such right, power or privilege, and no single or partial exercise of any right, power or privilege under this\nUndertaking will preclude any other or further exercise of any such right, power or privilege.\n6. Delivery of an executed signature page of this Undertaking by telecopy or other electronic imaging means will be effective as\ndelivery of a manually executed signature page of this Undertaking.\n7. This Undertaking will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nregard to its choice of laws or conflict of laws principles or of any other jurisdiction to the extent that such principles would require\nor permit the application of the laws of another jurisdiction.\n8. The terms of this Undertaking and Obligor ’s obligations hereunder shall expire two (2) years from the date of the Confidentiality\nAgreement.\n[Signature page on next page]	EX-10.2 3 d56535dex102.htm EX-10.2\nExhibit 10.2\nL. B. FOSTER COMPANY\n415 Holiday Drive Pittsburgh, PA 15220\nCONFIDENTIALITY AGREEMENT\nFebruary 12, 2016\nLegion Partners Asset Management, LL.C\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nAttention: Bradley S. Vizi, Managing Director\nLadies and Gentlemen:\nThis letter agreement shall become effective upon its execution following the appointment of the New Director to the Board of Directors\n(the “Board”) of L. B. Foster Company, a Pennsylvania corporation (the “Company”). Capitalized terms used herein but not otherwise defined\nherein shall have the meanings given to such terms in the agreement (the “Board Composition Agreement”), dated as of the date of this letter\nagreement, among the Company and the persons set forth on Schedule A hereto, pursuant to which the Company has agreed to appoint, at the\nrequest and recommendation of the Investor Group, the New Director, to the Board, subject to the covenants and other agreements contained\ntherein. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, during the Standstill\nPeriod (as defined in the Board Composition Agreement) and not at any time thereafter, the New Director may, if and to the extent he or she\ndesires to do so, disclose information, including certain non-public, confidential or proprietary information concerning the Company, that he or\nshe obtains while serving as a member of the Board to each of the persons or entities listed on Schedule B hereto that are and remain\nRepresentatives (as hereinafter defined) of Legion Partners Asset Management, LL.C, a Delaware limited liability company (collectively,\n“Legion” or “you”), who need to know such information, and may discuss such information with any and all such Representatives, subject to the\nterms and conditions of this letter agreement; provided, that prior to the disclosure of any Evaluation Material (as hereinafter defined) to any of\nyour Representatives, you must first have received from each Representative (other than your legal advisors at the law firm of Olshan Frome\nWolosky LLP) a written duly executed Representative Undertaking in the form attached hereto as Exhibit A and a copy of such Representative\nUndertaking must be provided to the Company prior to any such disclosure pursuant to the notice provisions in paragraph 17 of this letter\nagreement; provided, further, that the New Director shall be entitled to supplement Schedule B attached hereto upon the Company’s prior written\nconsent (such consent not to be unreasonably withheld) to add any Representatives not now existing or retained, as applicable, so long as such\npersons or entities qualify as such under the terms of this letter agreement and execute a written duly executed Representative Undertaking in the\nform attached hereto as Exhibit A and submitted to the Company in accordance with the terms hereof. In consideration for, and as a condition of,\nsuch information being furnished to you and your Affiliates, Associates, directors, officers, employees, and legal advisors representing you in\nlieu of the law firm of Olshan Frome Wolosky LLP (each a “Representative”, or collectively, the “Representatives”), subject to the restrictions in\nparagraph 2, you agree to treat any and all information concerning or relating to the Company or any of its subsidiaries or affiliates that is\nfurnished to you or your Representatives (regardless of the manner in which it is\n \n1\nfurnished, including in written or electronic format or orally, gathered by visual inspection or otherwise) by the New Director, or by or on behalf\nof the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof\ncontaining, referring, relating to, based upon or derived from such information, in whole or in part (collectively, “Evaluation Material”), strictly\nconfidential in accordance with the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement, (ii) was within your or any of your\nRepresentatives’ possession on a non-confidential basis prior to its being furnished to you by the New Director, or by or on behalf of the\nCompany or its agents, representatives, attorneys, advisors, directors, officers or employees (each a “Company Representative”, or collectively,\nthe “Company Representatives™), (iii) is received from a source other than the New Director, the Company or any Company representatives, or\n(iv) that you demonstrate to the extent reasonably practicable was independently developed by you or your Representatives without reference to\nor use of the Evaluation Material; provided, that in the case of (ii) or (iii) above, the source of such information was not, to your knowledge,\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n2. You and your Representatives will, and you will cause your Representatives to, (a) keep the Evaluation Material strictly confidential and\n(b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however,\nthat you may only privately disclose any of such information: (A) to your Representatives (i) who need to know such information for the sole\npurpose of advising you on your investment in the Company, (ii) who are informed by you of the confidential nature of such information and\nwho are directed by you to treat the Evaluation Material in a manner that is in strict compliance with the terms of this letter agreement, and\n(iii) who execute in writing a Representative Undertaking in the form attached hereto as Exhibit A; provided, further, that you will be responsible\nfor any violation of this letter agreement by your Representatives as if they were parties to this letter agreement; and (B) to the Company and the\nCompany Representatives. It is understood and agreed that no New Director shall disclose to you or your Representatives any legal or other\nadvice, including, but not limited to, any information that is marked attorney-client work product, attorney-client communication, privileged and\nconfidential or by other words purporting to indicate that the information is subject to the attorney-client privilege or attorney work-product\nprivilege, that may be included in the Evaluation Material with respect to which such disclosure may constitute waiver of the Company’s\nattorney-client privilege or attorney work-product privilege. Notwithstanding this Paragraph 2, your legal advisors at the law firm of Olshan\nFrome Wolosky LLP are not required to execute a Representative Undertaking, provided, however, that you covenant to instruct such counsel to\n(x) hold the Evaluation Material strictly confidential in accordance with the terms of this Agreement and (y) return the Evaluation Material to\nyou (or destroy it) at the conclusion of such law firm’s representation of you in connection with your investment in the Company.\n3. In addition, you agree that, without the prior written consent of the Company and except as otherwise disclosed in this letter agreement,\nyou will not disclose to any other person the fact that the Evaluation Material has been made available to you or any of your Representatives.\n4. Notwithstanding anything herein to the contrary, in the event that you or any of your Representatives are required by applicable law,\nregulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or\nsimilar process) to disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the\nCompany so that it may seek a protective order or other appropriate remedy (and if the Company seeks such an order, you will provide such\ncooperation as the Company shall reasonably request), at its sole cost and expense. Nothing herein shall be deemed to prevent you or your\nRepresentatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that requires discovery, disclosure or\nproduction of the Evaluation Material if (a) after notifying and cooperating with the Company as required above, you produce or disclose only\nthat portion of the Evaluation Material which your outside legal counsel advises you is legally required to be so produced or disclosed and you\ninform the recipient of such Evaluation Material of the existence of this letter agreement and the confidential nature of such Evaluation Material;\nor (b) the Company consents in writing to having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other\nlegal requirement. Unless legally required, in no event will you or any of your Representatives oppose action by the Company to obtain a\nprotective order or other relief to prevent the disclosure of the Evaluation Material or to obtain reliable assurance that confidential treatment will\nbe afforded to the Evaluation Material. For the avoidance of doubt, and notwithstanding anything contained herein to the contrary, disclosures\nmade pursuant hereto shall not be construed to permit disclosures made by you or your Representatives, publicly or privately, whether to the U.S.\nSecurities and Exchange Commission or its Staff, the Company’s shareholders or any other person or entity, in connection with or relating to any\nsolicitation made by you pursuant to Regulation 14A of the Securities Exchange Act of 1934, as amended, or any other state or Federal securities\nlaws applicable to any solicitations of the Company’s shareholders of proxies or other authorizations to vote the shares of a Company shareholder\nor otherwise take any action that any Company shareholder can take.\n5. It is understood and agreed that monetary damages may not be a sufficient remedy for any threatened or actual breach of this letter\nagreement, and that the Company is entitled to seek specific performance and injunctive or other equitable relief in connection with any such\nthreatened or actual breach of this letter agreement. Such remedy shall not be deemed to be the exclusive remedy for breach of this letter\nagreement, but shall be in addition to all other remedies available at law or equity to the Company.\n6. You undertake that you and your Representatives shall inform the Company immediately and in writing of any actual or suspected\nbreach of the obligations imposed under this letter agreement as you may be aware of and provide all possible assistance in order to minimize the\neffects of such breach.\n7. You acknowledge that (a) none of the Company or any Company Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or any Company Representatives shall\nhave any liability to you or to any of your Representatives directly or indirectly relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom.\n8. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of any\ndisclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company.\n9. At any time, upon the request of the Company, you will promptly deliver to the Company or destroy all hard copies of the Evaluation\nMaterial and use commercially reasonable efforts to permanently erase or delete all electronic copies of the Evaluation Material in your or any of\nyour Representatives’ possession or control, whether the Evaluation Material is (i) furnished to you by or on\n3\nbehalf of the Company pursuant hereto or (ii) prepared by you, and no copy thereof in any form shall be retained, provided, however, that you\nand your Representatives shall be permitted to retain such Evaluation Material as is necessary to enable you and your Representatives to comply\nwith any applicable document retention polices or requirements under applicable law or regulation and to retain any computer records and\ncomputer files containing any Evaluation Material if required pursuant to any current automatic archiving and backup procedures; provided,\nhowever, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be, and that any such retained Evaluation\nMaterial shall remain subject to the confidentiality and use restrictions of this letter agreement notwithstanding termination of this letter\nagreement. At the written request of the Company you shall provide the Company with a certificate of compliance with the foregoing sentence\nsigned by you or your chief compliance officer. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your\nRepresentatives will continue to be bound by the obligations contained in this letter agreement.\n10. You hereby acknowledge that you are aware that the United States federal securities laws prohibit any person who has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance upon\nsuch information.\n11. You represent and warrant to the Company that (i) you have all requisite company power and authority to execute and deliver this letter\nagreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by you, and is a\nvalid and binding obligation, enforceable against you in accordance with its terms, (iii) this letter agreement will not result in a violation of any\nterms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license, regulation,\njudgment, order or decree governing or affecting you, and (iv) your entry into this letter agreement does not require approval by any owners or\nholders of any equity or other interest in you (except as has already been obtained).\n12. The Company represents and warrants to you that (i) the Company has all requisite power and authority to execute and deliver this\nletter agreement and to perform its obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by the\nCompany, and is a valid and binding obligation, enforceable against the Company in accordance with its terms, (iii) this letter agreement will not\nresult in a violation of any terms or conditions of any agreements to which the Company is a party or by which the Company may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting the Company, and (iv) the Company’s entry into\nthis letter agreement does not require approval by any owners or holders of any equity or other interest in the Company (except as has already\nbeen obtained).\n13. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a waiver of\nany other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the Company to insist upon\nstrict adherence to any term of this letter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the\nright thereafter to insist upon strict adherence to that term or any other term of this letter agreement.\n14. You acknowledge and agree that the value of the Evaluation Material to the Company is unique and substantial, but may be impractical\nor difficult to assess in monetary terms. You further acknowledge and agree that in the event of an actual or threatened violation of this letter\nagreement, immediate and irreparable harm or injury may be caused for which money damages may not be an\n4\nadequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available to the\nCompany at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter agreement and to\nenforce specifically the terms and provisions of this letter agreement exclusively in the federal or state courts of the Commonwealth of\nPennsylvania located in the City of Pittsburgh. In the event that any action shall be brought in equity to enforce the provisions of this letter\nagreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n15. This letter agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of\nPennsylvania without reference to the choice of laws or conflict of laws principles thereof or of any other jurisdiction to the extent that such\nprinciples would require or permit the application of the laws of another jurisdiction. Each of the parties irrevocably agrees that any legal action\nor proceeding with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any\njudgment in respect of this letter agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or\nassigns, whether in tort or contract or at law or in equity, shall be brought and determined exclusively in the federal or state courts of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh. Each of the parties hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and\nagrees that it will not bring any action relating to this letter agreement in any court other than the aforesaid courts. Each of the parties hereto\nhereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this letter agreement, (a) any claim that it is not\npersonally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property is exempt or immune from\njurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to\njudgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable\nlegal requirements, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit,\naction or proceeding is improper or (iii) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts.\n16. This letter agreement, including the exhibits hereto, and the Agreement contain the entire understanding of the parties with respect to\nthe subject matter of this letter agreement and supersedes all prior and contemporaneous agreements, understandings and representations,\nwhether oral or written, of the parties with respect to the subject matter hereof. There are no restrictions, agreements, promises, representations,\nwarranties, covenants or undertakings between the parties with respect to the subject matter of this letter agreement other than those expressly set\nforth herein or in the Agreement.\n17. Any notices, consents, determinations, waivers or other communications required or permitted to be given under the terms of this letter\nagreement must be in writing and will be deemed to have been delivered: (a) upon receipt, when delivered personally; (b) upon receipt, when\nsent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party);\n(c) upon confirmation of receipt, when sent by email (provided such confirmation is not automatically generated); or (d) one (1) business day\nafter deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The\naddresses and facsimile numbers for such communications shall be:\nIf to the Company:\nL. B. Foster Company\n415 Holiday Drive, Suite 4\nPittsburgh, PA 15220\nFax No.: (412) 928-7891\nEmail: pguinee@lbfoster.com\nAttention: Patrick J. Guinee, Esq., Vice President, General Counsel & Corporate Secretary\nWith a copy to (which shall not constitute notice):\nMorgan, Lewis & Bockius LLP\n1111 Pennsylvania Avenue, NW\nWashington, DC 20004\nFax No.: 202-739-3001\nEmail: kgottfried@morganlewis.com\nAttention: Keith E. Gottfried, Esq.\nIf to Legion or any member thereof:\nLegion Partners Asset Management, LL.C\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nFax No.: (424) 234-5123\nEmail: bvizi@legionpartners.com\nAttention: Bradley S. Vizi, Managing Director\nWith a copy (which shall not constitute notice) to:\nOlshan Frome Wolosky LLP\n65 East 55th Street\nNew York, New York 10022\nAttention: Steve Wolosky\nFacsimile: (212) 451-2222\nEmail: swolosky@olshanlaw.com\n18. If any term, provision, covenant or restriction of this letter agreement is held by a court of competent jurisdiction to be invalid, void or\nunenforceable, the remainder of the terms, provisions, covenants and restrictions of this letter agreement shall remain in full force and effect and\nshall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the parties that the parties would\nhave executed the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid,\nvoid or unenforceable. In addition, the parties agree to use commercially reasonable efforts to agree upon and substitute a valid and enforceable\nterm, provision, covenant or restriction for any of such that is held invalid, void or enforceable by a court of competent jurisdiction.\n19. This letter agreement may be executed in two or more counterparts, each of which shall be considered one and the same agreement and\nshall become effective when counterparts have been signed by each of the parties and delivered to the other party (including by means of\nelectronic delivery or facsimile).\n20. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties hereto.\n21. Legion shall cause any replacement director for a New Director appointed to the Board pursuant to the Board Composition Agreement\nwho is an Affiliate or Associate of any Investor or who is employed by or a member of, or directly or indirectly affiliated with, controlled by, or\nunder common control of any Investor, to execute a copy of this letter agreement. For purposes of this letter agreement, any reference to a\n“replacement director” shall be limited to only a replacement director appointed pursuant to the Board Composition Agreement who is an\nAffiliate or Associate of any Investor or is employed by or a member of, or directly or indirectly affiliated with, controlled by, or under common\ncontrol of any Investor. For the avoidance of doubt, no party to this letter agreement or the Board Composition Agreement may share Evaluation\nMaterial with any person appointed to the Board pursuant to the Board Composition Agreement who does not execute a copy of this letter\nagreement or other form of confidentiality agreement with and acceptable to the Company.\n22. The confidentiality obligations set forth in this letter agreement with respect to the confidentiality of information concerning or relating\nto the Company shall remain in full force and effect for as long as such information continues to be deemed Evaluation Material pursuant to the\nterms of this letter agreement; provided, that upon expiration of the Standstill Period, nothing herein shall preclude the Investor Group from\nseeking the election of director candidates or submitting proposals at any meeting of shareholders of the Company, including, without limitation,\nmaking public or private statements relating to the Company if those statements do not reference, include, or incorporate, directly or indirectly,\nthe Evaluation Material in violation of this letter agreement; and provided further that the foregoing provision shall not be deemed and is not\nintended to constitute a waiver of any rights or obligations under this letter agreement. Notwithstanding the foregoing, the Investors and the New\nDirector acknowledge that certain Evaluation Material may constitute trade secrets and other similar information which may be subject to\nstatutory protection under applicable law and nothing herein shall be deemed to waive or otherwise the limit rights of the Company or such\nEvaluation Material to any such protections.\n23. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this letter agreement.\n24. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have\npreceded the execution of this letter agreement, and that it has executed the same with the advice of said counsel. Each party and its counsel\ncooperated and participated in the drafting and preparation of this letter agreement and the documents referred to herein, and any and all drafts\nrelating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in\nthis letter agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto,\nand any controversy over interpretations of this letter agreement shall be decided without regards to events of drafting or preparation. The term\n“including” shall in all instances be deemed to mean “including without limitation.”\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nL. B. FOSTER COMPANY\nBy:  /s/ Robert P. Bauer\nName: Robert P. Bauer\nTitle: President & CEO\n[Signature Page to the Confidentiality Agreement]\nAccepted and agreed as of the date first written above:\nLEGION PARTNERS, L.P. 1\nBy: Legion Partners Asset Management, LL.C\nInvestment Advisor\nBy: /s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\nLEGION PARTNERS, L.P. I\nBy: Legion Partners Asset Management, LL.C\nInvestment Advisor\nBy: /s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. I\nBy: Legion Partners Asset Management, LL.C\nInvestment Advisor\nBy: /s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\nLEGION PARTNERS, LLC\nBy: Legion Partners Holdings, LLC\nManaging Member\nBy: /s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\n[Signature Page to the Confidentiality Agreement]\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nBy: /s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle:  Managing Director\nLEGION PARTNERS HOLDINGS, LLC\nBy: /s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle:  Managing Director\n/s/ Christopher S. Kiper\nCHRISTOPHER S. KIPER\n/s/ Raymond White\nRAYMOND WHITE\n/s/ Bradley S. Vizi\nBRADLEY S. VIZI\n/s/ David A. Katz\nDAVID A. KATZ\n/s/ Justin Albert\nJUSTIN ALBERT\n[Signature Page to the Confidentiality Agreement]\nSCHEDULE A\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nBRADLEY S. VIZI\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nSchedule A\nSCHEDULE B\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nBRADLEY S. VIZI\nDAVID A. KATZ\nJUSTIN ALBERT\nOLSHAN FROME WOLOSKY LLP\n \nEXHIBIT A\nREPRESENTATIVE UNDERTAKING\n(SEE ATTACHED)\nREPRESENTATIVE UNDERTAKING\nEach of [*] [*] (each an “Obligor”), makes this undertaking (“Undertaking”) to, and for the benefit of, L. B. Foster Company, a\nPennsylvania corporation (the “Company”), in consideration of certain confidential information of the Company that Obligor wishes to receive. 1\n1. Obligor certifies that [*]1 is providing confidential information (“Evaluation Material”) to Obligor under a confidentiality agreement,\ndated February [+], 2016, between Legion Partners, L.P. I, Legion Partners, L.P. II, Legion Partners Special Opportunities, L.P. II,\nLegion Partners, LLC, Legion Partners Asset Management, LL.C, Legion Partners Holdings, LL.C, Christopher S. Kiper, Raymond\nWhite, Bradley S. Vizi, David A. Katz, Justin Albert (collectively, the Investors”) and the Company (“Confidentiality Agreement”)\nand (ii) Obligor has read the Confidentiality Agreement, understands the terms and conditions of the Confidentiality Agreement and\nagrees to be fully bound by the Confidentiality Agreement. Capitalized terms not otherwise defined in this Undertaking have the\nmeaning ascribed to them in the Confidentiality Agreement.\nObligor agrees that, upon receipt of the Evaluation Material, if not already restricted, it shall automatically become restricted from\ntaking any of the actions that the Investors are restricted from taking with respect to the Company pursuant to the terms of Section 3\nof the Agreement, dated February [+], 2016 (the “Board Composition Agreement”), by and between the Company and the Investors\nwhich agreement provides for, among other things, the appointment of Bradley S. Vizi to the Company’s Board of Directors and\nObligor hereby undertakes to comply with, and be subject to, the terms of Section 3 of the Board Composition Agreement as though\nit was a signatory thereto.\n \nIf Obligor is required by law, regulation, regulatory authority, judicial or governmental order or in connection with any interrogatory,\nsubpoena, civil investigatory demand or any similar process relating to any legal proceeding, investigation, hearing or otherwise to\ndisclose in any manner any Information, Obligor covenants to provide the Company with prompt notice (to the extent legally\npermissible) in advance of such disclosure so that the Company may seek, at the Company’s sole expense, a protective order or other\nappropriate remedy, waive compliance with this Paragraph 2 or both. In the event that no protective order or other remedy is\nobtained, or if the Company waives compliance with this Paragraph 2, Obligor covenants to (a) furnish only such Information as\nObligor is advised is legally required and (b) exercise commercially reasonable efforts to obtain assurance that confidential treatment\nwill be accorded to any Information that is compelled to be disclosed.\nObligor (a) consents to submit itself to personal jurisdiction and venue in any action brought in any federal or state court of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh (each, a “Court”) in connection with any matter arising to\nApplicable Legion Entity to be inserted\fenforce any provision of this Undertaking or the Confidentiality Agreement, (b) agrees that it will not attempt to deny or defeat such\npersonal jurisdiction by motion or other request for leave from any Court, (c) agrees that it will not bring any action relating to this\nUndertaking or the Confidentiality Agreement in any court or venue other than a Court, (d) agrees that service of process for\npurposes of proceedings to enforce this Undertaking or the Confidentiality Agreement is effective and proper if delivered by\nregistered or certified mail, and (e) agrees that any breach of this Undertaking or the Confidentiality Agreement may be punishable\nby such relief as deemed appropriate by any Court.\nThis Undertaking may be modified or waived only by a separate writing executed by Obligor and the Company that expressly\nmodifies or waives this Undertaking. No failure or delay in exercising any right, power or privilege under this Undertaking will\noperate as a waiver of any such right, power or privilege, and no single or partial exercise of any right, power or privilege under this\nUndertaking will preclude any other or further exercise of any such right, power or privilege.\nDelivery of an executed signature page of this Undertaking by telecopy or other electronic imaging means will be effective as\ndelivery of a manually executed signature page of this Undertaking.\nThis Undertaking will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nregard to its choice of laws or conflict of laws principles or of any other jurisdiction to the extent that such principles would require\nor permit the application of the laws of another jurisdiction.\nThe terms of this Undertaking and Obligor’s obligations hereunder shall expire two (2) years from the date of the Confidentiality\nAgreement.\n[Signature page on next page]	EX-10.2 3 d56535dex102.htm EX-10.2\nExhibit 10.2\nL. B. FOSTER COMPANY\n415 Holiday Drive Pittsburgh, PA 15220\nCONFIDENTIALITY AGREEMENT\nFebruary 12, 2016\nLegion Partners Asset Management, LLC\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nAttention: Bradley S. Vizi, Managing Director\nLadies and Gentlemen:\nThis letter agreement shall become effective upon its execution following the appointment of the New Director to the Board of Directors\n(the "Board") of L. B. Foster Company, a Pennsylvania corporation (the "Company."). Capitalized terms used herein but not otherwise defined\nherein shall have the meanings given to such terms in the agreement (the "Board Composition Agreement"), dated as of the date of this letter\nagreement, among the Company and the persons set forth on Schedule A hereto, pursuant to which the Company has agreed to appoint, at the\nrequest and recommendation of the Investor Group, the New Director, to the Board, subject to the covenants and other agreements contained\ntherein. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, during the Standstill\nPeriod (as defined in the Board Composition Agreement) and not at any time thereafter, the New Director may, if and to the extent he or she\ndesires to do so, disclose information, including certain non-public, confidential or proprietary information concerning the Company, that he or\nshe obtains while serving as a member of the Board to each of the persons or entities listed on Schedule B hereto that are and remain\nRepresentatives (as hereinafter defined) of Legion Partners Asset Management, LLC, a Delaware limited liability company (collectively,\n"Legion" or "you"), who need to know such information, and may discuss such information with any and all such Representatives, subject to the\nterms and conditions of this letter agreement; provided, that prior to the disclosure of any Evaluation Material (as hereinafter defined) to any of\nyour Representatives, you must first have received from each Representative (other than your legal advisors at the law firm of Olshan Frome\nWolosky LLP) a written duly executed Representative Undertaking in the form attached hereto as Exhibit A and a copy of such Representative\nUndertaking must be provided to the Company prior to any such disclosure pursuant to the notice provisions in paragraph 17 of this letter\nagreement; provided, further, that the New Director shall be entitled to supplement Schedule B attached hereto upon the Company's prior written\nconsent (such consent not to be unreasonably withheld) to add any Representatives not now existing or retained, as applicable, so long as such\npersons or entities qualify as such under the terms of this letter agreement and execute a written duly executed Representative Undertaking in the\nform attached hereto as Exhibit A and submitted to the Company in accordance with the terms hereof. In consideration for, and as a condition of,\nsuch information being furnished to you and your Affiliates, Associates, directors, officers, employees, and legal advisors representing you in\nlieu of the law firm of Olshan Frome Wolosky LLP (each a "Representative", or collectively, the "Representatives"), subject to the restrictions\nin\nparagraph 2, you agree to treat any and all information concerning or relating to the Company or any of its subsidiaries or affiliates that is\nfurnished to you or your Representatives (regardless of the manner in which it is\n1\nfurnished, including in written or electronic format or orally, gathered by visual inspection or otherwise) by the New Director, or by or on behalf\nof the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof\ncontaining, referring, relating to, based upon or derived from such information, in whole or in part (collectively, "Evaluation Material"), strictly\nconfidential in accordance with the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term "Evaluation Material" does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement, (ii) was within your or any of your\nRepresentatives' possession on a non-confidential basis prior to its being furnished to you by the New Director, or by or on behalf of the\nCompany or its agents, representatives, attorneys, advisors, directors, officers or employees (each a "Company. Representative", or collectively,\nthe "Company. Representatives"), (iii) is received from a source other than the New Director, the Company or any Company representatives, or\n(iv) that you demonstrate to the extent reasonably practicable was independently developed by you or your Representatives without reference to\nor use of the Evaluation Material; provided, that in the case of (ii) or (iii) above, the source of such information was not, to your knowledge,\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n2. You and your Representatives will, and you will cause your Representatives to, (a) keep the Evaluation Material strictly confidential and\n(b)\nnot disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided,\nhowever,\nthat you may only privately disclose any of such information: (A) to your Representatives (i) who need to know such information for the sole\npurpose of advising you on your investment in the Company, (ii) who are informed by you of the confidential nature of such information\nand\nwho are directed by you to treat the Evaluation Material in a manner that is in strict compliance with the terms of this letter agreement, and\n(iii) who execute in writing a Representative Undertaking in the form attached hereto as Exhibit A; provided, further, that you will be responsible\nfor any violation of this letter agreement by your Representatives as if they were parties to this letter agreement; and (B) to the Company and\nthe\nCompany Representatives. It is understood and agreed that no New Director shall disclose to you or your Representatives any legal or other\nadvice, including, but not limited to, any information that is marked attorney-client work product, attorney-client communication, privileged and\nconfidential or by other words purporting to indicate that the information is subject to the attorney-client privilege or attorney work-product\nprivilege,\nthat\nmay\nbe\nincluded\nin\nthe\nEvaluation\nMaterial\nwith\nrespect\nto\nwhich\nsuch\ndisclosure\nmay\nconstitute\nwaiver\nof\nthe\nCompany's\nattorney-client privilege or attorney work-product privilege. Notwithstanding this Paragraph 2, your legal advisors at the law firm of Olshan\nFrome Wolosky LLP are not required to execute a Representative Undertaking, provided, however, that you covenant to instruct such counsel to\n(x) hold the Evaluation Material strictly confidential in accordance with the terms of this Agreement and (y) return the Evaluation Material to\nyou (or destroy it) at the conclusion of such law firm's representation of you in connection with your investment in the Company.\n3. In addition, you agree that, without the prior written consent of the Company and except as otherwise disclosed in this letter agreement,\nyou will not disclose to any other person the fact that the Evaluation Material has been made available to you or any of your Representatives.\n4. Notwithstanding anything herein to the contrary, in the event that you or any of your Representatives are required by applicable law,\nregulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or\n2\nsimilar process) to disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the\nCompany so that it may seek a protective order or other appropriate remedy (and if the Company seeks such an order, you will provide such\ncooperation as the Company shall reasonably request), at its sole cost and expense. Nothing herein shall be deemed to prevent you or your\nRepresentatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that requires discovery, disclosure or\nproduction of the Evaluation Material if (a) after notifying and cooperating with the Company as required above, you produce or disclose only\nthat portion of the Evaluation Material which your outside legal counsel advises you is legally required to be so produced or disclosed and\nyou\ninform the recipient of such Evaluation Material of the existence of this letter agreement and the confidential nature of such Evaluation Material;\nor (b) the Company consents in writing to having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other\nlegal requirement. Unless legally required, in no event will you or any of your Representatives oppose action by the Company to obtain a\nprotective order or other relief to prevent the disclosure of the Evaluation Material or to obtain reliable assurance that confidential treatment will\nbe afforded to the Evaluation Material. For the avoidance of doubt, and notwithstanding anything contained herein to the contrary, disclosures\nmade pursuant hereto shall not be construed to permit disclosures made by you or your Representatives, publicly or privately, whether to the U.S.\nSecurities and Exchange Commission or its Staff, the Company's shareholders or any other person or entity, in connection with or relating to any\nsolicitation made by you pursuant to Regulation 14A of the Securities Exchange Act of 1934, as amended, or any other state or Federal securities\nlaws applicable to any solicitations of the Company's shareholders of proxies or other authorizations to vote the shares of a Company shareholder\nor otherwise take any action that any Company shareholder can take.\n5. It is understood and agreed that monetary damages may not be a sufficient remedy for any threatened or actual breach of this letter\nagreement, and that the Company is entitled to seek specific performance and injunctive or other equitable relief in connection with any such\nthreatened or actual breach of this letter agreement. Such remedy shall not be deemed to be the exclusive remedy for breach of this letter\nagreement, but shall be in addition to all other remedies available at law or equity to the Company.\n6. You undertake that you and your Representatives shall inform the Company immediately and in writing of any actual or suspected\nbreach of the obligations imposed under this letter agreement as you may be aware of and provide all possible assistance in order to minimize\nthe\neffects of such breach.\n7. You acknowledge that (a) none of the Company or any Company Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or any Company Representatives shall\nhave any liability to you or to any of your Representatives directly or indirectly relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom.\n8. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of any\ndisclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company.\n9. At any time, upon the request of the Company, you will promptly deliver to the Company or destroy all hard copies of the Evaluation\nMaterial and use commercially reasonable efforts to permanently erase or delete all electronic copies of the Evaluation Material in your or any of\nyour Representatives' possession or control, whether the Evaluation Material is (i) furnished to you by or on\n3\nbehalf of the Company pursuant hereto or (ii) prepared by you, and no copy thereof in any form shall be retained, provided, however, that you\nand your Representatives shall be permitted to retain such Evaluation Material as is necessary to enable you and your Representatives to comply\nwith any applicable document retention polices or requirements under applicable law or regulation and to retain any computer records and\ncomputer files containing any Evaluation Material if required pursuant to any current automatic archiving and backup procedures; provided,\nhowever, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be, and that any such retained Evaluation\nMaterial shall remain subject to the confidentiality and use restrictions of this letter agreement notwithstanding termination of this letter\nagreement. At the written request of the Company you shall provide the Company with a certificate of compliance with the foregoing sentence\nsigned by you or your chief compliance officer. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your\nRepresentatives will continue to be bound by the obligations contained in this letter agreement.\n10. You hereby acknowledge that you are aware that the United States federal securities laws prohibit any person who has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance upon\nsuch information.\n11. You represent and warrant to the Company that (i) you have all requisite company power and authority to execute and deliver this letter\nagreement\nand\nto perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by you, and\nis\na\nvalid and binding obligation, enforceable against you in accordance with its terms, (iii) this letter agreement will not result in a violation of any\nterms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license, regulation,\njudgment, order or decree governing or affecting you, and (iv) your entry into this letter agreement does not require approval by any owners or\nholders of any equity or other interest in you (except as has already been obtained).\n12.\nThe Company represents and warrants to you that (i) the Company has all requisite power and authority to execute and deliver this\nletter agreement and to perform its obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by the\nCompany, and is a valid and binding obligation, enforceable against the Company in accordance with its terms, (iii) this letter agreement will not\nresult\nin\na\nviolation\nof\nany\nterms\nor\nconditions\nof\nany\nagreements\nto\nwhich\nthe\nCompany\nis\na\nparty\nor\nby\nwhich\nthe\nCompany\nmay\notherwise\nbe\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting the Company, and (iv) the Company's entry into\nthis letter agreement does not require approval by any owners or holders of any equity or other interest in the Company (except as has already\nbeen obtained).\n13.\nAny waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a waiver of\nany other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the Company to insist upon\nstrict adherence to any term of this letter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the\nright thereafter to insist upon strict adherence to that term or any other term of this letter agreement.\n14. You acknowledge and agree that the value of the Evaluation Material to the Company is unique and substantial, but may be impractical\nor difficult to assess in monetary terms. You further acknowledge and agree that in the event of an actual or threatened violation of this letter\nagreement, immediate and irreparable harm or injury may be caused for which money damages may not be an\n4\nadequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available to the\nCompany at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter agreement and\nto\nenforce specifically the terms and provisions of this letter agreement exclusively in the federal or state courts of the Commonwealth of\nPennsylvania located in the City of Pittsburgh. In the event that any action shall be brought in equity to enforce the provisions of this\nletter\nagreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n15. This letter agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of\nPennsylvania without reference to the choice of laws or conflict of laws principles thereof or of any other jurisdiction to the extent that such\nprinciples would require or permit the application of the laws of another jurisdiction. Each of the parties irrevocably agrees that any legal action\nor proceeding with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any\njudgment in respect of this letter agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors\nor\nassigns, whether in tort or contract or at law or in equity, shall be brought and determined exclusively in the federal or state courts of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh. Each of the parties hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and\nagrees that it will not bring any action relating to this letter agreement in any court other than the aforesaid courts. Each of the parties hereto\nhereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this letter agreement, (a) any claim that it is not\npersonally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property is exempt or immune from\njurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to\njudgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable\nlegal requirements, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit,\naction or proceeding is improper or (iii) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts.\n16. This letter agreement, including the exhibits hereto, and the Agreement contain the entire understanding of the parties with respect to\nthe subject matter of this letter agreement and supersedes all prior and contemporaneous agreements, understandings and representations,\nwhether oral or written, of the parties with respect to the subject matter hereof. There are no restrictions, agreements, promises, representations,\nwarranties, covenants or undertakings between the parties with respect to the subject matter of this letter agreement other than those expressly set\nforth herein or in the Agreement.\n17. Any notices, consents, determinations, waivers or other communications required or permitted to be given under the terms of this letter\nagreement must be in writing and will be deemed to have been delivered: (a) upon receipt, when delivered personally; (b) upon receipt, when\nsent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party);\n(c) upon confirmation of receipt, when sent by email (provided such confirmation is not automatically generated); or (d) one (1) business day\nafter deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The\naddresses and facsimile numbers for such communications shall be:\n5\nIf to the Company:\nL. B. Foster Company\n415 Holiday Drive, Suite 4\nPittsburgh, PA 15220\nFax No.: (412) 928-7891\nEmail: pguinee@lbfoster.com\nAttention: Patrick J. Guinee, Esq., Vice President, General Counsel & Corporate Secretary\nWith a copy to (which shall not constitute notice):\nMorgan, Lewis & Bockius LLP\n1111 Pennsylvania Avenue, NW\nWashington, DC 20004\nFax No.: 202-739-3001\nEmail: kgottfried@morganlewis.com\nAttention: Keith E. Gottfried, Esq.\nIf to Legion or any member thereof:\nLegion Partners Asset Management, LLC\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nFax No.: (424) 234-5123\nEmail: bvizi@legionpartners.com\nAttention: Bradley S. Vizi, Managing Director\nWith a copy (which shall not constitute notice) to:\nOlshan Frome Wolosky LLP\n65 East 55th Street\nNew York, New York 10022\nAttention: Steve Wolosky\nFacsimile: (212) 451-2222\nEmail: swolosky@olshanlaw.com\n18. If any term, provision, covenant or restriction of this letter agreement is held by a court of competent jurisdiction to be invalid, void or\nunenforceable, the remainder of the terms, provisions, covenants and restrictions of this letter agreement shall remain in full force and effect and\nshall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the parties that the parties would\nhave executed the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid,\nvoid or unenforceable. In addition, the parties agree to use commercially reasonable efforts to agree upon and substitute a valid and enforceable\nterm, provision, covenant or restriction for any of such that is held invalid, void or enforceable by a court of competent jurisdiction.\n19. This letter agreement may be executed in two or more counterparts, each of which shall be considered one and the same agreement and\nshall become effective when counterparts have been signed by each of the parties and delivered to the other party (including by means of\nelectronic delivery or facsimile).\n6\n20.\nThis letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part,\nby\nyou\nwithout the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties hereto.\n21. Legion shall cause any replacement director for a New Director appointed to the Board pursuant to the Board Composition Agreement\nwho is an Affiliate or Associate of any Investor or who is employed by or a member of, or directly or indirectly affiliated with, controlled by, or\nunder common control of any Investor, to execute a copy of this letter agreement. For purposes of this letter agreement, any reference to\na\n"replacement director" shall be limited to only a replacement director appointed pursuant to the Board Composition Agreement who is an\nAffiliate or Associate of any Investor or is employed by or a member of, or directly or indirectly affiliated with, controlled by, or under common\ncontrol of any Investor. For the avoidance of doubt, no party to this letter agreement or the Board Composition Agreement may share Evaluation\nMaterial with any person appointed to the Board pursuant to the Board Composition Agreement who does not execute a copy of this letter\nagreement or other form of confidentiality agreement with and acceptable to the Company.\n22. The confidentiality obligations set forth in this letter agreement with respect to the confidentiality of information concerning or relating\nto the Company shall remain in full force and effect for as long as such information continues to be deemed Evaluation Material pursuant to the\nterms of this letter agreement; provided, that upon expiration of the Standstill Period, nothing herein shall preclude the Investor Group from\nseeking the election of director candidates or submitting proposals at any meeting of shareholders of the Company, including, without limitation,\nmaking public or private statements relating to the Company if those statements do not reference, include, or incorporate, directly or indirectly,\nthe Evaluation Material in violation of this letter agreement; and provided further that the foregoing provision shall not be deemed and is not\nintended to constitute a waiver of any rights or obligations under this letter agreement. Notwithstanding the foregoing, the Investors and the\nNew\nDirector acknowledge that certain Evaluation Material may constitute trade secrets and other similar information which may be subject to\nstatutory protection under applicable law and nothing herein shall be deemed to waive or otherwise the limit rights of the Company or such\nEvaluation Material to any such protections.\n23.\nNo licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this letter agreement.\n24.\nEach of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations\nthat\nhave\npreceded the execution of this letter agreement, and that it has executed the same with the advice of said counsel. Each party and its counsel\ncooperated and participated in the drafting and preparation of this letter agreement and the documents referred to herein, and any and all drafts\nrelating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in\nthis letter agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto,\nand any controversy over interpretations of this letter agreement shall be decided without regards to events of drafting or preparation. The term\n"including" shall in all instances be deemed to mean "including without limitation."\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nL. B. FOSTER COMPANY\nBy:\n/s/ Robert P. Bauer\nName: Robert P. Bauer\nTitle: President & CEO\n[Signature Page to the Confidentiality Agreement]\nAccepted and agreed as of the date first written above:\nLEGION PARTNERS, L.P. I\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS, L.P. II\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS, LLC\nBy: Legion Partners Holdings, LLC\nManaging Member\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\n[Signature Page to the Confidentiality Agreement]\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nBy:\n/s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\nLEGION PARTNERS HOLDINGS, LLC\nBy:\n/s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle:\nManaging Director\n/s/ Christopher S. Kiper\nCHRISTOPHER S. KIPER\n/s/ Raymond White\nRAYMOND WHITE\n/s/ Bradley S. Vizi\nBRADLEY S. VIZI\n/s/ David A. Katz\nDAVID A. KATZ\n/s/ Justin Albert\nJUSTIN ALBERT\n[Signature Page to the Confidentiality Agreement]\nSCHEDULE A\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nBRADLEY S. VIZI\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nSchedule A\nSCHEDULE B\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nBRADLEY S. VIZI\nDAVID A. KATZ\nJUSTIN ALBERT\nOLSHAN FROME WOLOSKY LLP\nEXHIBIT A\nREPRESENTATIVE UNDERTAKING\n(SEE ATTACHED)\nREPRESENTATIVE UNDERTAKING\nEach of [][] (each an "Obligor"), makes this undertaking ("Undertaking") to, and for the benefit of, L. B. Foster Company,\na\nPennsylvania corporation (the "Company."), in consideration of certain confidential information of the Company that Obligor wishes to receive.\n1.\nObligor certifies that []1 is providing confidential information ("Evaluation Material") to Obligor under a confidentiality agreement,\ndated February [], 2016, between Legion Partners, L.P. I, Legion Partners, L.P. II, Legion Partners Special Opportunities, L.P. II,\nLegion Partners, LLC, Legion Partners Asset Management, LLC, Legion Partners Holdings, LLC, Christopher S. Kiper, Raymond\nWhite, Bradley S. Vizi, David A. Katz, Justin Albert (collectively, the Investors") and the Company ("Confidentiality. Agreement")\nand (ii) Obligor has read the Confidentiality Agreement, understands the terms and conditions of the Confidentiality Agreement and\nagrees to be fully bound by the Confidentiality Agreement. Capitalized terms not otherwise defined in this Undertaking have the\nmeaning ascribed to them in the Confidentiality Agreement.\n2.\nObligor agrees that, upon receipt of the Evaluation Material, if not already restricted, it shall automatically become restricted from\ntaking any of the actions that the Investors are restricted from taking with respect to the Company pursuant to the terms of Section\n3\nof the Agreement, dated February [], 2016 (the "Board Composition Agreement"), by and between the Company and the Investors\nwhich agreement provides for, among other things, the appointment of Bradley S. Vizi to the Company's Board of Directors and\nObligor hereby undertakes to comply with, and be subject to, the terms of Section 3 of the Board Composition Agreement as though\nit was a signatory thereto.\n3.\nIf Obligor is required by law, regulation, regulatory authority, judicial or governmental order or in connection with any interrogatory,\nsubpoena, civil investigatory demand or any similar process relating to any legal proceeding, investigation, hearing or otherwise\nto\ndisclose in any manner any Information Obligor covenants to provide the Company with prompt notice (to the extent legally\npermissible) in advance of such disclosure so that the Company may seek, at the Company's sole expense, a protective order or other\nappropriate remedy, waive compliance with this Paragraph 2 or both. In the event that no protective order or other remedy is\nobtained, or if the Company waives compliance with this Paragraph 2, Obligor covenants to (a) furnish only such Information as\nObligor is advised is legally required and (b) exercise commercially reasonable efforts to obtain assurance that confidential treatment\nwill be accorded to any Information that is compelled to be disclosed.\n4.\nObligor (a) consents to submit itself to personal jurisdiction and venue in any action brought in any federal or state court of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh (each, a "Court") in connection with any matter arising\nto\n1\nApplicable Legion Entity to be inserted\nenforce any provision of this Undertaking or the Confidentiality Agreement, (b) agrees that it will not attempt to deny or defeat such\npersonal jurisdiction by motion or other request for leave from any Court (c) agrees that it will not bring any action relating to this\nUndertaking or the Confidentiality Agreement in any court or venue other than a Court, (d) agrees that service of process for\npurposes of proceedings to enforce this Undertaking or the Confidentiality Agreement is effective and proper if delivered by\nregistered or certified mail, and (e) agrees that any breach of this Undertaking or the Confidentiality Agreement may be punishable\nby such relief as deemed appropriate by any Court.\n5.\nThis Undertaking may be modified or waived only by a separate writing executed by Obligor and the Company that expressly\nmodifies or waives this Undertaking. No failure or delay in exercising any right, power or privilege under this Undertaking will\noperate as a waiver of any such right, power or privilege, and no single or partial exercise of any right, power or privilege under this\nUndertaking will preclude any other or further exercise of any such right, power or privilege.\n6.\nDelivery of an executed signature page of this Undertaking by telecopy or other electronic imaging means will be effective as\ndelivery of a manually executed signature page of this Undertaking.\n7.\nThis Undertaking will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nregard to its choice of laws or conflict of laws principles or of any other jurisdiction to the extent that such principles would require\nor permit the application of the laws of another jurisdiction.\n8.\nThe terms of this Undertaking and Obligor's obligations hereunder shall expire two (2) years from the date of the Confidentiality\nAgreement.\n[Signature page on next page]	EX-10.2 3 d56535dex102.htm EX-10.2\nExhibit 10.2\nL. B . FOSTER COMPANY\n415 Holiday Drive Pittsburgh, PA 15220\nCONFIDENTIALITY AGREEMENT\nFebruary 12, 2016\nLegion Partners Asset Management, LLC\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nAttention: Bradley S. Vizi, Managing Director\nLadies and Gentlemen:\nThis letter agreement shall become effective upon its execution following the appointment of the New Director to the Board of Directors\n(the “Board”) of L. B . Foster Company, a Pennsylvania corporation (the “Company”). Capitalized terms used herein but not otherwise defined\nherein shall have the meanings given to such terms in the agreement (the “Board Composition Agreement”), dated as of the date of this letter\nagreement, among the Company and the persons set forth on Schedule A hereto, pursuant to which the Company has agreed to appoint, at the\nrequest and recommendation of the Investor Group, the New Director, to the Board, subject to the covenants and other agreements contained\ntherein. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, during the Standstill\nPeriod (as defined in the Board Composition Agreement) and not at any time thereafter, the New Director may, if and to the extent he or she\ndesires to do so, disclose information, including certain non-public, confidential or proprietary information concerning the Company, that he or\nshe obtains while serving as a member of the Board to each of the persons or entities listed on Schedule B hereto that are and remain\nRepresentatives (as hereinafter defined) of Legion Partners Asset Management, LLC, a Delaware limited liability company (collectively,\n“Legion” or “you”), who need to know such information, and may discuss such information with any and all such Representatives, subject to the\nterms and conditions of this letter agreement; provided, that prior to the disclosure of any Evaluation Material (as hereinafter defined) to any of\nyour Representatives, you must first have received from each Representative (other than your legal advisors at the law firm of Olshan Frome\nWolosky LLP) a written duly executed Representative Undertaking in the form attached hereto as Exhibit A and a copy of such Representative\nUndertaking must be provided to the Company prior to any such disclosure pursuant to the notice provisions in paragraph 17 of this letter\nagreement; provided, further, that the New Director shall be entitled to supplement Schedule B attached hereto upon the Company’s prior written\nconsent (such consent not to be unreasonably withheld) to add any Representatives not now existing or retained, as applicable, so long as such\npersons or entities qualify as such under the terms of this letter agreement and execute a written duly executed Representative Undertaking in the\nform attached hereto as Exhibit A and submitted to the Company in accordance with the terms hereof. In consideration for, and as a condition of,\nsuch information being furnished to you and your Affiliates, Associates, directors, officers, employees, and legal advisors representing you in\nlieu of the law firm of Olshan Frome Wolosky LLP (each a “Representative”, or collectively, the “Representatives”), subject to the restrictions in\nparagraph 2, you agree to treat any and all information concerning or relating to the Company or any of its subsidiaries or affiliates that is\nfurnished to you or your Representatives (regardless of the manner in which it is\n1\nfurnished, including in written or electronic format or orally, gathered by visual inspection or otherwise) by the New Director, or by or on behalf\nof the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof\ncontaining, referring, relating to, based upon or derived from such information, in whole or in part (collectively, “Evaluation Material”), strictly\nconfidential in accordance with the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement, (ii) was within your or any of your\nRepresentatives’ possession on a non-confidential basis prior to its being furnished to you by the New Director, or by or on behalf of the\nCompany or its agents, representatives, attorneys, advisors, directors, officers or employees (each a “Company Representative”, or collectively,\nthe “Company Representatives”), (iii) is received from a source other than the New Director, the Company or any Company representatives, or\n(iv) that you demonstrate to the extent reasonably practicable was independently developed by you or your Representatives without reference to\nor use of the Evaluation Material; provided, that in the case of (ii) or (iii) above, the source of such information was not, to your knowledge,\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n2. You and your Representatives will, and you will cause your Representatives to, (a) keep the Evaluation Material strictly confidential and\n(b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however,\nthat you may only privately disclose any of such information: (A) to your Representatives (i) who need to know such information for the sole\npurpose of advising you on your investment in the Company, (ii) who are informed by you of the confidential nature of such information and\nwho are directed by you to treat the Evaluation Material in a manner that is in strict compliance with the terms of this letter agreement, and\n(iii) who execute in writing a Representative Undertaking in the form attached hereto as Exhibit A; provided, further, that you will be responsible\nfor any violation of this letter agreement by your Representatives as if they were parties to this letter agreement; and (B) to the Company and the\nCompany Representatives. It is understood and agreed that no New Director shall disclose to you or your Representatives any legal or other\nadvice, including, but not limited to, any information that is marked attorney-client work product, attorney-client communication, privileged and\nconfidential or by other words purporting to indicate that the information is subject to the attorney-client privilege or attorney work-product\nprivilege, that may be included in the Evaluation Material with respect to which such disclosure may constitute waiver of the Company’s\nattorney-client privilege or attorney work-product privilege. Notwithstanding this Paragraph 2, your legal advisors at the law firm of Olshan\nFrome Wolosky LLP are not required to execute a Representative Undertaking, provided, however, that you covenant to instruct such counsel to\n(x) hold the Evaluation Material strictly confidential in accordance with the terms of this Agreement and (y) return the Evaluation Material to\nyou (or destroy it) at the conclusion of such law firm’s representation of you in connection with your investment in the Company.\n3. In addition, you agree that, without the prior written consent of the Company and except as otherwise disclosed in this letter agreement,\nyou will not disclose to any other person the fact that the Evaluation Material has been made available to you or any of your Representatives.\n4. Notwithstanding anything herein to the contrary, in the event that you or any of your Representatives are required by applicable law,\nregulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or\n2\nsimilar process) to disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the\nCompany so that it may seek a protective order or other appropriate remedy (and if the Company seeks such an order, you will provide such\ncooperation as the Company shall reasonably request), at its sole cost and expense. Nothing herein shall be deemed to prevent you or your\nRepresentatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that requires discovery, disclosure or\nproduction of the Evaluation Material if (a) after notifying and cooperating with the Company as required above, you produce or disclose only\nthat portion of the Evaluation Material which your outside legal counsel advises you is legally required to be so produced or disclosed and you\ninform the recipient of such Evaluation Material of the existence of this letter agreement and the confidential nature of such Evaluation Material;\nor (b) the Company consents in writing to having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other\nlegal requirement. Unless legally required, in no event will you or any of your Representatives oppose action by the Company to obtain a\nprotective order or other relief to prevent the disclosure of the Evaluation Material or to obtain reliable assurance that confidential treatment will\nbe afforded to the Evaluation Material. For the avoidance of doubt, and notwithstanding anything contained herein to the contrary, disclosures\nmade pursuant hereto shall not be construed to permit disclosures made by you or your Representatives, publicly or privately, whether to the U.S.\nSecurities and Exchange Commission or its Staff, the Company’s shareholders or any other person or entity, in connection with or relating to any\nsolicitation made by you pursuant to Regulation 14A of the Securities Exchange Act of 1934, as amended, or any other state or Federal securities\nlaws applicable to any solicitations of the Company’s shareholders of proxies or other authorizations to vote the shares of a Company shareholder\nor otherwise take any action that any Company shareholder can take.\n5. It is understood and agreed that monetary damages may not be a sufficient remedy for any threatened or actual breach of this letter\nagreement, and that the Company is entitled to seek specific performance and injunctive or other equitable relief in connection with any such\nthreatened or actual breach of this letter agreement. Such remedy shall not be deemed to be the exclusive remedy for breach of this letter\nagreement, but shall be in addition to all other remedies available at law or equity to the Company.\n6. You undertake that you and your Representatives shall inform the Company immediately and in writing of any actual or suspected\nbreach of the obligations imposed under this letter agreement as you may be aware of and provide all possible assistance in order to minimize the\neffects of such breach.\n7. You acknowledge that (a) none of the Company or any Company Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or any Company Representatives shall\nhave any liability to you or to any of your Representatives directly or indirectly relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom.\n8. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of any\ndisclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company.\n9. At any time, upon the request of the Company, you will promptly deliver to the Company or destroy all hard copies of the Evaluation\nMaterial and use commercially reasonable efforts to permanently erase or delete all electronic copies of the Evaluation Material in your or any of\nyour Representatives’ possession or control, whether the Evaluation Material is (i) furnished to you by or on\n3\nbehalf of the Company pursuant hereto or (ii) prepared by you, and no copy thereof in any form shall be retained, provided, however, that you\nand your Representatives shall be permitted to retain such Evaluation Material as is necessary to enable you and your Representatives to comply\nwith any applicable document retention polices or requirements under applicable law or regulation and to retain any computer records and\ncomputer files containing any Evaluation Material if required pursuant to any current automatic archiving and backup procedures; provided,\nhowever, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be, and that any such retained Evaluation\nMaterial shall remain subject to the confidentiality and use restrictions of this letter agreement notwithstanding termination of this letter\nagreement. At the written request of the Company you shall provide the Company with a certificate of compliance with the foregoing sentence\nsigned by you or your chief compliance officer. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your\nRepresentatives will continue to be bound by the obligations contained in this letter agreement.\n10. You hereby acknowledge that you are aware that the United States federal securities laws prohibit any person who has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance upon\nsuch information.\n11. You represent and warrant to the Company that (i) you have all requisite company power and authority to execute and deliver this letter\nagreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by you, and is a\nvalid and binding obligation, enforceable against you in accordance with its terms, (iii) this letter agreement will not result in a violation of any\nterms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license, regulation,\njudgment, order or decree governing or affecting you, and (iv) your entry into this letter agreement does not require approval by any owners or\nholders of any equity or other interest in you (except as has already been obtained).\n12. The Company represents and warrants to you that (i) the Company has all requisite power and authority to execute and deliver this\nletter agreement and to perform its obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by the\nCompany, and is a valid and binding obligation, enforceable against the Company in accordance with its terms, (iii) this letter agreement will not\nresult in a violation of any terms or conditions of any agreements to which the Company is a party or by which the Company may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting the Company, and (iv) the Company’s entry into\nthis letter agreement does not require approval by any owners or holders of any equity or other interest in the Company (except as has already\nbeen obtained).\n13. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a waiver of\nany other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the Company to insist upon\nstrict adherence to any term of this letter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the\nright thereafter to insist upon strict adherence to that term or any other term of this letter agreement.\n14. You acknowledge and agree that the value of the Evaluation Material to the Company is unique and substantial, but may be impractical\nor difficult to assess in monetary terms. You further acknowledge and agree that in the event of an actual or threatened violation of this letter\nagreement, immediate and irreparable harm or injury may be caused for which money damages may not be an\n4\nadequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available to the\nCompany at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter agreement and to\nenforce specifically the terms and provisions of this letter agreement exclusively in the federal or state courts of the Commonwealth of\nPennsylvania located in the City of Pittsburgh. In the event that any action shall be brought in equity to enforce the provisions of this letter\nagreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n15. This letter agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of\nPennsylvania without reference to the choice of laws or conflict of laws principles thereof or of any other jurisdiction to the extent that such\nprinciples would require or permit the application of the laws of another jurisdiction. Each of the parties irrevocably agrees that any legal action\nor proceeding with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any\njudgment in respect of this letter agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or\nassigns, whether in tort or contract or at law or in equity, shall be brought and determined exclusively in the federal or state courts of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh. Each of the parties hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and\nagrees that it will not bring any action relating to this letter agreement in any court other than the aforesaid courts. Each of the parties hereto\nhereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this letter agreement, (a) any claim that it is not\npersonally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property is exempt or immune from\njurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to\njudgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable\nlegal requirements, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit,\naction or proceeding is improper or (iii) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts.\n16. This letter agreement, including the exhibits hereto, and the Agreement contain the entire understanding of the parties with respect to\nthe subject matter of this letter agreement and supersedes all prior and contemporaneous agreements, understandings and representations,\nwhether oral or written, of the parties with respect to the subject matter hereof. There are no restrictions, agreements, promises, representations,\nwarranties, covenants or undertakings between the parties with respect to the subject matter of this letter agreement other than those expressly set\nforth herein or in the Agreement.\n17. Any notices, consents, determinations, waivers or other communications required or permitted to be given under the terms of this letter\nagreement must be in writing and will be deemed to have been delivered: (a) upon receipt, when delivered personally; (b) upon receipt, when\nsent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party);\n(c) upon confirmation of receipt, when sent by email (provided such confirmation is not automatically generated); or (d) one (1) business day\nafter deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The\naddresses and facsimile numbers for such communications shall be:\n5\nIf to the Company:\nL. B . Foster Company\n415 Holiday Drive, Suite 4\nPittsburgh, PA 15220\nFax No.: (412) 928-7891\nEmail: pguinee@lbfoster.com\nAttention: Patrick J. Guinee, Esq., Vice President, General Counsel & Corporate Secretary\nWith a copy to (which shall not constitute notice):\nMorgan, Lewis & Bockius LLP\n1111 Pennsylvania Avenue, NW\nWashington, DC 20004\nFax No.: 202-739-3001\nEmail: kgottfried@morganlewis.com\nAttention: Keith E. Gottfried, Esq.\nIf to Legion or any member thereof:\nLegion Partners Asset Management, LLC\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nFax No.: (424) 234-5123\nEmail: bvizi@legionpartners.com\nAttention: Bradley S. Vizi, Managing Director\nWith a copy (which shall not constitute notice) to:\nOlshan Frome Wolosky LLP\n65 East 55th Street\nNew York, New York 10022\nAttention: Steve Wolosky\nFacsimile: (212) 451-2222\nEmail: swolosky@olshanlaw.com\n18. If any term, provision, covenant or restriction of this letter agreement is held by a court of competent jurisdiction to be invalid, void or\nunenforceable, the remainder of the terms, provisions, covenants and restrictions of this letter agreement shall remain in full force and effect and\nshall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the parties that the parties would\nhave executed the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid,\nvoid or unenforceable. In addition, the parties agree to use commercially reasonable efforts to agree upon and substitute a valid and enforceable\nterm, provision, covenant or restriction for any of such that is held invalid, void or enforceable by a court of competent jurisdiction.\n19. This letter agreement may be executed in two or more counterparts, each of which shall be considered one and the same agreement and\nshall become effective when counterparts have been signed by each of the parties and delivered to the other party (including by means of\nelectronic delivery or facsimile).\n6\n20. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties hereto.\n21. Legion shall cause any replacement director for a New Director appointed to the Board pursuant to the Board Composition Agreement\nwho is an Affiliate or Associate of any Investor or who is employed by or a member of, or directly or indirectly affiliated with, controlled by, or\nunder common control of any Investor, to execute a copy of this letter agreement. For purposes of this letter agreement, any reference to a\n“replacement director” shall be limited to only a replacement director appointed pursuant to the Board Composition Agreement who is an\nAffiliate or Associate of any Investor or is employed by or a member of, or directly or indirectly affiliated with, controlled by, or under common\ncontrol of any Investor. For the avoidance of doubt, no party to this letter agreement or the Board Composition Agreement may share Evaluation\nMaterial with any person appointed to the Board pursuant to the Board Composition Agreement who does not execute a copy of this letter\nagreement or other form of confidentiality agreement with and acceptable to the Company.\n22. The confidentiality obligations set forth in this letter agreement with respect to the confidentiality of information concerning or relating\nto the Company shall remain in full force and effect for as long as such information continues to be deemed Evaluation Material pursuant to the\nterms of this letter agreement; provided, that upon expiration of the Standstill Period, nothing herein shall preclude the Investor Group from\nseeking the election of director candidates or submitting proposals at any meeting of shareholders of the Company, including, without limitation,\nmaking public or private statements relating to the Company if those statements do not reference, include, or incorporate, directly or indirectly,\nthe Evaluation Material in violation of this letter agreement; and provided further that the foregoing provision shall not be deemed and is not\nintended to constitute a waiver of any rights or obligations under this letter agreement. Notwithstanding the foregoing, the Investors and the New\nDirector acknowledge that certain Evaluation Material may constitute trade secrets and other similar information which may be subject to\nstatutory protection under applicable law and nothing herein shall be deemed to waive or otherwise the limit rights of the Company or such\nEvaluation Material to any such protections.\n23. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this letter agreement.\n24. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have\npreceded the execution of this letter agreement, and that it has executed the same with the advice of said counsel. Each party and its counsel\ncooperated and participated in the drafting and preparation of this letter agreement and the documents referred to herein, and any and all drafts\nrelating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in\nthis letter agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto,\nand any controversy over interpretations of this letter agreement shall be decided without regards to events of drafting or preparation. The term\n“including” shall in all instances be deemed to mean “including without limitation.”\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nL. B . FOSTER COMPANY\nBy: /s/ Robert P. Bauer\nName: Robert P. Bauer\nTitle: President & CEO\n[Signature Page to the Confidentiality Agreement]\nAccepted and agreed as of the date first written above:\nLEGION PARTNERS, L.P. I\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS, L.P. II\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS, LLC\nBy: Legion Partners Holdings, LLC\nManaging Member\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\n[Signature Page to the Confidentiality Agreement]\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nBy:\n/s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\nLEGION PARTNERS HOLDINGS, LLC\nBy:\n/s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\n/s/ Christopher S. Kiper\nCHRISTOPHER S. KIPER\n/s/ Raymond White\nRAYMOND WHITE\n/s/ Bradley S. Vizi\nBRADLEY S. VIZI\n/s/ David A. Katz\nDAVID A. KATZ\n/s/ Justin Albert\nJUSTIN ALBERT\n[Signature Page to the Confidentiality Agreement]\nSCHEDULE A\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nBRADLEY S. VIZI\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nSchedule A\nSCHEDULE B\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nBRADLEY S. VIZI\nDAVID A. KATZ\nJUSTIN ALBERT\nOLSHAN FROME WOLOSKY LLP\nEXHIBIT A\nREPRESENTATIVE UNDERTAKING\n(SEE ATTACHED)\nREPRESENTATIVE UNDERTAKING\nEach of [•] [•] (each an “Obligor”), makes this undertaking (“Undertaking”) to, and for the benefit of, L. B . Foster Company, a\nPennsylvania corporation (the “Company”), in consideration of certain confidential information of the Company that Obligor wishes to receive.\n1. Obligor certifies that [•]1 is providing confidential information (“Evaluation Material”) to Obligor under a confidentiality agreement,\ndated February [•], 2016, between Legion Partners, L.P. I, Legion Partners, L.P. II, Legion Partners Special Opportunities, L.P. II,\nLegion Partners, LLC, Legion Partners Asset Management, LLC, Legion Partners Holdings, LLC, Christopher S. Kiper, Raymond\nWhite, Bradley S. Vizi, David A. Katz, Justin Albert (collectively, the Investors”) and the Company (“Confidentiality Agreement”)\nand (ii) Obligor has read the Confidentiality Agreement, understands the terms and conditions of the Confidentiality Agreement and\nagrees to be fully bound by the Confidentiality Agreement. Capitalized terms not otherwise defined in this Undertaking have the\nmeaning ascribed to them in the Confidentiality Agreement.\n2. Obligor agrees that, upon receipt of the Evaluation Material, if not already restricted, it shall automatically become restricted from\ntaking any of the actions that the Investors are restricted from taking with respect to the Company pursuant to the terms of Section 3\nof the Agreement, dated February [•], 2016 (the “Board Composition Agreement”), by and between the Company and the Investors\nwhich agreement provides for, among other things, the appointment of Bradley S. Vizi to the Company’s Board of Directors and\nObligor hereby undertakes to comply with, and be subject to, the terms of Section 3 of the Board Composition Agreement as though\nit was a signatory thereto.\n3. If Obligor is required by law, regulation, regulatory authority, judicial or governmental order or in connection with any interrogatory,\nsubpoena, civil investigatory demand or any similar process relating to any legal proceeding, investigation, hearing or otherwise to\ndisclose in any manner any Information, Obligor covenants to provide the Company with prompt notice (to the extent legally\npermissible) in advance of such disclosure so that the Company may seek, at the Company’s sole expense, a protective order or other\nappropriate remedy, waive compliance with this Paragraph 2 or both. In the event that no protective order or other remedy is\nobtained, or if the Company waives compliance with this Paragraph 2, Obligor covenants to (a) furnish only such Information as\nObligor is advised is legally required and (b) exercise commercially reasonable efforts to obtain assurance that confidential treatment\nwill be accorded to any Information that is compelled to be disclosed.\n4. Obligor (a) consents to submit itself to personal jurisdiction and venue in any action brought in any federal or state court of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh (each, a “Court”) in connection with any matter arising to\n1\nApplicable Legion Entity to be inserted\nenforce any provision of this Undertaking or the Confidentiality Agreement, (b) agrees that it will not attempt to deny or defeat such\npersonal jurisdiction by motion or other request for leave from any Court, (c) agrees that it will not bring any action relating to this\nUndertaking or the Confidentiality Agreement in any court or venue other than a Court, (d) agrees that service of process for\npurposes of proceedings to enforce this Undertaking or the Confidentiality Agreement is effective and proper if delivered by\nregistered or certified mail, and (e) agrees that any breach of this Undertaking or the Confidentiality Agreement may be punishable\nby such relief as deemed appropriate by any Court.\n5. This Undertaking may be modified or waived only by a separate writing executed by Obligor and the Company that expressly\nmodifies or waives this Undertaking. No failure or delay in exercising any right, power or privilege under this Undertaking will\noperate as a waiver of any such right, power or privilege, and no single or partial exercise of any right, power or privilege under this\nUndertaking will preclude any other or further exercise of any such right, power or privilege.\n6. Delivery of an executed signature page of this Undertaking by telecopy or other electronic imaging means will be effective as\ndelivery of a manually executed signature page of this Undertaking.\n7. This Undertaking will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nregard to its choice of laws or conflict of laws principles or of any other jurisdiction to the extent that such principles would require\nor permit the application of the laws of another jurisdiction.\n8. The terms of this Undertaking and Obligor ’s obligations hereunder shall expire two (2) years from the date of the Confidentiality\nAgreement.\n[Signature page on next page]
154d30f607c74aa8a5f582bf84f7a5e2.pdf	effective_date jurisdiction party term	EX-10.15 7 dex1015.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (PETER H. KESSER)\nExhibit 10.15\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (this “Agreement”) is entered into as of January 1, 2008, by and between Verso Paper\nHoldings LLC, a Delaware limited liability company (“Verso Paper”), and Peter H. Kesser (“Employee”), to allow Employee to have access to\ncertain valuable competitive information and business relationships of Verso Paper while also providing protection for such information and\nrelationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions. As used in this Agreement, the terms:\n(a) “Protected Information” shall mean all information, documents or materials, owned, developed or possessed by Verso Paper or any\nemployee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso Paper takes reasonable measures to\nmaintain in secrecy, and (ii) pertains in any manner to Verso Paper’s business, including but not limited to Research and Development (as\ndefined below); customers or prospective customers, targeted national accounts, or strategies or data for identifying and satisfying their needs;\npresent or prospective business relationships; present, short term, or long term strategic plans; acquisition candidates; plans for corporate\nrestructuring; products under consideration or development; cost, margin or profit information; data from which any of the foregoing types of\ninformation could be derived; human resources (including compensation information and internal evaluations of the performance, capability\nand potential of Verso Paper employees); business methods, data bases and computer programs. The fact that individual elements of the\ninformation that constitutes Protected Information may be generally known does not prevent an integrated compilation of information, whether\nor not reduced to writing, from being Protected Information if that integrated whole is not generally known.\n(b) “Research and Development” shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso Paper\noperating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and the\nimprovements and innovations relating to same; quality control procedures and equipment; identification, selection, generation and\npropagation of tree species having improved characteristics; forest resource management; innovation and improvement to manufacturing and\nconverting processes such as shipping, pulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment\nfor use in such processes; reduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use\nand optimization of raw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp\nproducts; energy conservation; computer software and application of computer controls to manufacturing\nand quality control operations and to inventory control; radio frequency identification and its use in paper and packaging products; and product\nprocess improvement development or evaluation; and (iii) information about methods, techniques, products equipment, and processes which\nVerso Paper has learned do not work or do not provide beneficial results (“negative know-how”) as well as those which do work which provide\nbeneficial results.\n(c) “Unauthorized” shall mean (i) in contravention of Verso Paper’s policies or procedures; (ii) otherwise inconsistent with Verso Paper’s\nmeasures to protect its interests in the Protected Information; (iii) in contravention of any lawful instruction or directive, either written or oral,\nof an Verso Paper employee empowered to issue such instruction or directive; (iv) in contravention of any duty existing under law or contract;\nor (v) to the detriment of Verso Paper.\n2. Confidentiality.\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of Vice\nPresident, General Counsel and Secretary, Employee has been and will be entrusted with Protected Information and may develop Protected\nInformation, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to competitors and others\nwho do not know it and that such information constitutes confidential and proprietary trade secrets of Verso Paper. While an employee or\nconsultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper, Employee agrees not to use or disclose,\ndirectly or indirectly, any Protected Information in an Unauthorized manner or for any Unauthorized purpose unless such information shall\nhave become generally known in the relevant industry or independently developed with no assistance from Employee. Further, promptly upon\ntermination, for any reason, of Employee’s employment with Verso Paper or upon the request of Verso Paper Employee agrees to deliver to\nVerso Paper all property and materials and copies thereof within Employee’s possession or control which belong to Verso Paper or which\ncontain Protected Information and to permanently delete upon Verso Paper’s request all Protected Information from any computers or other\nelectronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee’s employment with Verso Paper for any reason, Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information, including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all reasonable\nmeasures to prevent the Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or entities from\nobtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately notify\nVerso Paper thereof and, at Verso Paper’s expense, shall consult with Verso Paper on the advisability of taking steps to resist or narrow such\nrequest and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance that the Protected\nInformation will be afforded confidential treatment. If such protective order or other appropriate remedy is not obtained, Employee shall\nfurnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be furnished.\n2\n3. Non-Competition.\n(a) Employee acknowledges and agrees that the business of Verso Paper and its customers is worldwide in scope, Verso Paper ’s\ncompetitors and customers are located throughout the world, and Verso Paper’s strategic planning and Research and Development activities\nhave application throughout the world and are for the benefit of customers and Verso Paper’s business throughout the world, and therefore, the\nrestrictions on Employee’s competition after employment as described below apply to anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business. Employee acknowledges that any such competition within that geographical scope will irreparably injure\nVerso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition described below are reasonably tailored\nto protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly and\nwhether for compensation or otherwise, with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and supercalendared paper products or the operation of coated and supercalendared paper mills anywhere in the world.\n(c) After the termination of Employee’s employment with Verso Paper for any reason, Employee agrees that for a period of twelve\n(12) months (the “Non-Compete Period”) following such termination Employee will not compete with Verso Paper anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business:\n(i) by producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of coated\nand supercalendared paper products or the operation of coated and supercalendared paper mills;\n(ii) by engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation, financial,\nhuman resources, strategic planning, or operation duties) for, whether as an employee, consultant, or otherwise, any entity which\nproduces, develops, sells or markets in the business of coated and supercalendared paper products or the operation of coated and\nsupercalendared paper mills;\n(iii) by owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and supercalendared paper products or the operation of coated and supercalendared paper mills, provided that this\nSection 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the outstanding stock of\nany class of a corporation that is publicly traded, so long as Employee has no active participation in the business of such corporation; or\n(iv) by soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products, processes\nor services of the business of coated and supercalendared paper products or the operation of coated and supercalendared paper mills,\nwhether existing or contemplated for the future, on which Employee has worked, or concerning which Employee has in any manner\nacquired knowledge or Protected Information about, during the twenty four (24) months preceding termination of Employee’s\nemployment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit of a multi-\ndivisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee does not engage in, oversee,\nprovide input or\n3\ninformation regarding, or participate in any manner in the activities described in this paragraph as they relate to the division or business unit which is\na competitor of Verso Paper. Employee shall not assist others in engaging in activities which Employee is not permitted to take.\n4. Non-Solicitation/Non-Hire. During the term of Employee’s employment at Verso Paper and for twelve (12) months following the\ntermination, for any reason, of employment, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other\nperson or entity, directly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in\nhiring, soliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5. Tolling Period of Restrictions. Employee agrees that the periods of non-competition and non-solicitation/non-hire set forth in Sections 3\nand 4, respectively, shall be extended by the period of violation if Employee is found to be in violation of those provisions.\n6. Post-Termination Payments and Benefits. Upon the termination of Employee’s employment with Verso Paper for any reason, in\nconsideration of Employee’s compliance with all his obligations under this Agreement (including, without limitation, his obligations under Sections\n2, 3(c) and 4), and provided that Employee complies with all such obligations, Verso Paper shall provide post-termination payments and benefits to\nEmployee as follows:\n(a) During the Non-Compete Period, if Employee is unable, despite diligent search, to obtain employment consistent with Employee’s\nexperience and education, Employee shall so notify Verso Paper in writing, describing in reasonable detail the efforts Employee has made to\nsecure such employment that does not conflict with Employee’s non-compete obligations. Upon receipt and reasonable verification of the\ninformation contained in such notice, Verso Paper shall make monthly payments to Employee in an amount equal to Employee’s monthly base\nsalary in effect in the month immediately preceding the termination of his employment, less applicable tax and other withholdings, for each\nmonth (or prorated for periods less than a month) of such unemployment during the Non-Compete Period. Before the close of each month for\nwhich Employee seeks such payment, Employee shall advise Verso Paper in writing of Employee’s efforts to obtain non-competitive\nemployment and shall certify that although Employee diligently sought such employment, Employee was unable to obtain it.\n(b) Verso Paper shall pay to Employee an amount equal to the sum of the incentive awards, if any, payable to Employee under the Verso\nPaper Incentive Plan (the “Incentive Plan”) for (i) the year immediately preceding the year in which termination of employment occurred, to\nthe extent not previously paid to Employee, and (ii) the year in which such termination occurred, prorated for the period of the year in which\nEmployee was employed by Verso Paper, in each case less applicable tax and other withholdings (collectively, the “Incentive Payment”). The\ndetermination of the Incentive Payment shall be made by Verso Paper, in its sole and absolute discretion, and, with respect to the year in which\ntermination occurred, shall be based on (i) Employee’s monthly base salary in effect in the month immediately preceding the termination of his\nemployment and (ii) the assumptions relative to the Incentive Plan that (A) Employee was employed by Verso Paper during the entire year and\nis otherwise eligible and qualified to receive the Incentive Payment, (B) Employee’s monthly base salary remained in effect and was not\nchanged during the remainder of the year, and (C) Employee achieved all of his individual performance measures, if any, during the year.\nVerso Paper shall make the Incentive Payment to Employee at the same time that it makes other incentive payments under the Incentive Plan to\nthe employees of Verso Paper.\n(c) Verso Paper shall (i) continue Employee’s coverage of the employment-related benefits described in Exhibit A for up to twenty-four\n(24) months following Employee’s termination of\n4\nemployment with Verso Paper, in accordance with and subject to the terms and conditions set forth in the attached Exhibit A, and\n(ii) contribute on Employee’s behalf an amount equal to his Lost Retirement Benefits (as defined below) to the Verso Paper Deferred\nCompensation Plan. As used in this Agreement, the term “Lost Retirement Benefits” shall mean the projected value of employer contributions\nunder the Verso Paper Retirement Savings Plan, the Verso Paper Deferred Compensation Plan, and the Verso Paper Supplemental Salaried\nRetirement Savings Plan (collectively, the “Plans”) that Employee would have received had he remained actively employed with Verso Paper\nduring the twenty-four (24) months following Employee’s termination of employment with Verso Paper. The determination of the Lost\nRetirement Benefits shall be made by Verso Paper, in its sole and absolute discretion, and shall be based on (i) Employee’s monthly base salary\nin effect in the month immediately preceding the termination of his employment and (ii) the assumption that Employee’s salary deferrals\nduring such twenty-four (24) month period are in such amounts as would produce the maximum possible matching contribution by Verso\nPaper under the Plans. Verso Paper shall contribute on Employee’s behalf the value of his Lost Retirement Benefits to the Verso Paper\nDeferred Compensation Plan in a lump sum payment as soon as reasonably practicable after the determination of the Lost Retirement Benefits\nis made.\n7. Duty to Show Agreement to Prospective Employer. During Employee’s employment with Verso Paper and for twelve (12) months\nthereafter, Employee shall, prior to accepting other employment, provide a copy of this Agreement to any recruiter who assists Employee in locating\nemployment other than with Verso Paper and to any prospective employer with which Employee discusses potential employment.\n8. Representations, Warranties and Acknowledgements. In addition to the representations, warranties and obligations set forth throughout\nthis Agreement, Employee acknowledges that (a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its\nsuccess; (b) the Unauthorized use or disclosure of Protected Information or the violation of the covenants set forth in Sections 2, 3, or 4 would cause\nirreparable harm to Verso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected\nInformation; (d) Employee has developed, or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of this\nAgreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and valuable services\nto Verso Paper of an intellectual character and that Employee’s services will be difficult for Verso Paper to replace. Employee further acknowledges\nand agrees that Verso Paper is providing Employee with significant consideration in this Agreement for entering into the Agreement and that Verso\nPaper’s remedies for any breach of this Agreement are in addition to and not in place of any other remedies Verso Paper may have at law or equity or\nunder any other agreements.\n9. Section 409A of the Code. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in\naccordance with, and incorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the\nDepartment of Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof (“Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in the event\nthat Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A, Verso Paper and\nEmployee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and procedures, including\namendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment\nof the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less favorable accounting or tax\nconsequences for Verso Paper and/or (b) take such other actions as mutually determined to be necessary or appropriate to exempt any amounts\npayable hereunder from\n5\nSection 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. In addition, and\nnotwithstanding any provision of this Agreement to the contrary, to the extent subject to Section 409A, payment to a “specified employee” as\ndefined in Section 409A(2)(B)(i) shall not be made before the date which is six (6) months after the date of termination of employment.\n10. General.\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee’s right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this Agreement\nor portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of\nsuch provisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties\nand Employee agrees, that if any court construes any provision or clause of this Agreement or any portion thereof to be illegal, void or\nunenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area or\nmatter of such provision and in its reduced form, such provision shall then be enforceable and shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the event\nof the absence of either of these executives or the vacancy of either of these positions, such other officer of Verso Paper as Verso Paper’s Board\nof Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-defaulting party all of\nthe non-defaulting party’s costs and expenses, including attorney’s and experts’ fees in enforcing the provisions of the Agreement as to which a\nbreach is found.\n(g) Employee agrees that Verso Paper’s determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee’s obligations under this Agreement.\n(h) Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the covenants set forth\nabove prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference with Verso Paper’s\nbusiness and customer relationships.\n(i) Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with an independent attorney\nbefore signing this Agreement.\n6\n(j) This Agreement sets forth the entire agreement of the parties, and fully supersedes any and all prior agreements or understandings\nbetween the parties pertaining to the subject matter hereof.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered effective as of the date first set forth\nabove.\nVERSO PAPER HOLDINGS LLC\nBy: /s/ Michael A. Jackson\nMichael A. Jackson\nPresident and Chief Executive Officer\n/s/ Peter H. Kesser\nPeter H. Kesser\n7\nEXHIBIT A\nEMPLOYMENT-RELATED BENEFITS\nBenefits:\n•\nCoverage under Verso Paper Medical and Dental Plan for Employee and his or her eligible dependents for up to twenty-four (24) months.\n•\nReimbursement for (i) all costs to convert to an individual policy the basic life insurance coverage on Employee’s life only, in such\namount as in effect at termination of employment, and (ii) the premiums necessary to continue such converted coverage for up to twenty-\nfour (24) months. Reimbursement shall be conditioned on Employee providing Verso Paper with satisfactory evidence that the\nconversion costs and premiums have been incurred.\nAdditional Terms and Conditions:\n•\nVerso Paper shall pay Employee an amount equal to the aggregate of any and all federal, state and local income tax imposed on\nEmployee resulting from the benefits set forth above, as determined by Verso Paper in its sole and absolute discretion.\n•\nBenefit coverage/reimbursement is subject to early termination upon Employee’s re-employment with comparable benefits available, as\ndetermined by Verso Paper in its sole and absolute discretion.\n•\nVerso Paper reserves the right to modify, revoke, suspend, terminate or change any or all of its benefit plans, programs or policies, in\nwhole or in part, at any time and from time to time, and with or without notice, provided that any such change or modification is\napplicable to all similarly situated employees of Verso Paper.\n8	EX-10.15 7 dex1015.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (PETER H. KESSER)\nExhibit 10.15\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (this “Agreement”) is entered into as of January 1, 2008, by and between Verso Paper\nHoldings LLC, a Delaware limited liability company (“Verso Paper”), and Peter H. Kesser (“Employee”), to allow Employee to have access to\ncertain valuable competitive information and business relationships of Verso Paper while also providing protection for such information and\nrelationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions. As used in this Agreement, the terms:\n(a) “Protected Information” shall mean all information, documents or materials, owned, developed or possessed by Verso Paper or any\nemployee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso Paper takes reasonable measures to\nmaintain in secrecy, and (ii) pertains in any manner to Verso Paper’s business, including but not limited to Research and Development (as\ndefined below); customers or prospective customers, targeted national accounts, or strategies or data for identifying and satisfying their needs;\npresent or prospective business relationships; present, short term, or long term strategic plans; acquisition candidates; plans for corporate\nrestructuring; products under consideration or development; cost, margin or profit information; data from which any of the foregoing types of\ninformation could be derived; human resources (including compensation information and internal evaluations of the performance, capability\nand potential of Verso Paper employees); business methods, data bases and computer programs. The fact that individual elements of the\ninformation that constitutes Protected Information may be generally known does not prevent an integrated compilation of information, whether\nor not reduced to writing, from being Protected Information if that integrated whole is not generally known.\n(b) “Research and Development” shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso Paper\noperating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and the\nimprovements and innovations relating to same; quality control procedures and equipment; identification, selection, generation and\npropagation of tree species having improved characteristics; forest resource management; innovation and improvement to manufacturing and\nconverting processes such as shipping, pulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment\nfor use in such processes; reduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use\nand optimization of raw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp\nproducts; energy conservation; computer software and application of computer controls to manufacturing\nand quality control operations and to inventory control; radio frequency identification and its use in paper and packaging products; and product\nprocess improvement development or evaluation; and (iii) information about methods, techniques, products equipment, and processes which\nVerso Paper has learned do not work or do not provide beneficial results (“negative know-how”) as well as those which do work which provide\nbeneficial results.\n(c) “Unauthorized” shall mean (i) in contravention of Verso Paper’s policies or procedures; (ii) otherwise inconsistent with Verso Paper’s\nmeasures to protect its interests in the Protected Information; (iii) in contravention of any lawful instruction or directive, either written or oral,\nof an Verso Paper employee empowered to issue such instruction or directive; (iv) in contravention of any duty existing under law or contract;\nor (v) to the detriment of Verso Paper.\n2. Confidentiality.\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of Vice\nPresident, General Counsel and Secretary, Employee has been and will be entrusted with Protected Information and may develop Protected\nInformation, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to competitors and others\nwho do not know it and that such information constitutes confidential and proprietary trade secrets of Verso Paper. While an employee or\nconsultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper, Employee agrees not to use or disclose,\ndirectly or indirectly, any Protected Information in an Unauthorized manner or for any Unauthorized purpose unless such information shall\nhave become generally known in the relevant industry or independently developed with no assistance from Employee. Further, promptly upon\ntermination, for any reason, of Employee’s employment with Verso Paper or upon the request of Verso Paper Employee agrees to deliver to\nVerso Paper all property and materials and copies thereof within Employee’s possession or control which belong to Verso Paper or which\ncontain Protected Information and to permanently delete upon Verso Paper’s request all Protected Information from any computers or other\nelectronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee’s employment with Verso Paper for any reason, Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information, including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all reasonable\nmeasures to prevent the Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or entities from\nobtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately notify\nVerso Paper thereof and, at Verso Paper’s expense, shall consult with Verso Paper on the advisability of taking steps to resist or narrow such\nrequest and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance that the Protected\nInformation will be afforded confidential treatment. If such protective order or other appropriate remedy is not obtained, Employee shall\nfurnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be furnished.\n2\n3. Non-Competition.\n(a) Employee acknowledges and agrees that the business of Verso Paper and its customers is worldwide in scope, Verso Paper’s\ncompetitors and customers are located throughout the world, and Verso Paper’s strategic planning and Research and Development activities\nhave application throughout the world and are for the benefit of customers and Verso Paper’s business throughout the world, and therefore, the\nrestrictions on Employee’s competition after employment as described below apply to anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business. Employee acknowledges that any such competition within that geographical scope will irreparably injure\nVerso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition described below are reasonably tailored\nto protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly and\nwhether for compensation or otherwise, with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and supercalendared paper products or the operation of coated and supercalendared paper mills anywhere in the world.\n(c) After the termination of Employee’s employment with Verso Paper for any reason, Employee agrees that for a period of twelve\n(12) months (the “Non-Compete Period”) following such termination Employee will not compete with Verso Paper anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business:\n(i) by producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of coated\nand supercalendared paper products or the operation of coated and supercalendared paper mills;\n(ii) by engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation, financial,\nhuman resources, strategic planning, or operation duties) for, whether as an employee, consultant, or otherwise, any entity which\nproduces, develops, sells or markets in the business of coated and supercalendared paper products or the operation of coated and\nsupercalendared paper mills;\n(iii) by owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and supercalendared paper products or the operation of coated and supercalendared paper mills, provided that this\nSection 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the outstanding stock of\nany class of a corporation that is publicly traded, so long as Employee has no active participation in the business of such corporation; or\n(iv) by soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products, processes\nor services of the business of coated and supercalendared paper products or the operation of coated and supercalendared paper mills,\nwhether existing or contemplated for the future, on which Employee has worked, or concerning which Employee has in any manner\nacquired knowledge or Protected Information about, during the twenty four (24) months preceding termination of Employee’s\nemployment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit of a multi-\ndivisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee does not engage in, oversee,\nprovide input or\ninformation regarding, or participate in any manner in the activities described in this paragraph as they relate to the division or business unit which is\na competitor of Verso Paper. Employee shall not assist others in engaging in activities which Employee is not permitted to take.\n4. Non-Solicitation/Non-Hire. During the term of Employee’s employment at Verso Paper and for twelve (12) months following the\ntermination, for any reason, of employment, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other\nperson or entity, directly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in\nhiring, soliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5. Tolling Period of Restrictions. Employee agrees that the periods of non-competition and non-solicitation/non-hire set forth in Sections 3\nand 4, respectively, shall be extended by the period of violation if Employee is found to be in violation of those provisions.\n6. Post-Termination Payments and Benefits. Upon the termination of Employee’s employment with Verso Paper for any reason, in\nconsideration of Employee’s compliance with all his obligations under this Agreement (including, without limitation, his obligations under Sections\n2, 3(c) and 4), and provided that Employee complies with all such obligations, Verso Paper shall provide post-termination payments and benefits to\nEmployee as follows:\n(a) During the Non-Compete Period, if Employee is unable, despite diligent search, to obtain employment consistent with Employee’s\nexperience and education, Employee shall so notify Verso Paper in writing, describing in reasonable detail the efforts Employee has made to\nsecure such employment that does not conflict with Employee’s non-compete obligations. Upon receipt and reasonable verification of the\ninformation contained in such notice, Verso Paper shall make monthly payments to Employee in an amount equal to Employee’s monthly base\nsalary in effect in the month immediately preceding the termination of his employment, less applicable tax and other withholdings, for each\nmonth (or prorated for periods less than a month) of such unemployment during the Non-Compete Period. Before the close of each month for\nwhich Employee seeks such payment, Employee shall advise Verso Paper in writing of Employee’s efforts to obtain non-competitive\nemployment and shall certify that although Employee diligently sought such employment, Employee was unable to obtain it.\n(b) Verso Paper shall pay to Employee an amount equal to the sum of the incentive awards, if any, payable to Employee under the Verso\nPaper Incentive Plan (the “Incentive Plan”) for (i) the year immediately preceding the year in which termination of employment occurred, to\nthe extent not previously paid to Employee, and (ii) the year in which such termination occurred, prorated for the period of the year in which\nEmployee was employed by Verso Paper, in each case less applicable tax and other withholdings (collectively, the “Incentive Payment”). The\ndetermination of the Incentive Payment shall be made by Verso Paper, in its sole and absolute discretion, and, with respect to the year in which\ntermination occurred, shall be based on (i) Employee’s monthly base salary in effect in the month immediately preceding the termination of his\nemployment and (ii) the assumptions relative to the Incentive Plan that (A) Employee was employed by Verso Paper during the entire year and\nis otherwise eligible and qualified to receive the Incentive Payment, (B) Employee’s monthly base salary remained in effect and was not\nchanged during the remainder of the year, and (C) Employee achieved all of his individual performance measures, if any, during the year.\nVerso Paper shall make the Incentive Payment to Employee at the same time that it makes other incentive payments under the Incentive Plan to\nthe employees of Verso Paper.\n(c) Verso Paper shall (i) continue Employee’s coverage of the employment-related benefits described in Exhibit A for up to twenty-four\n(24) months following Employee’s termination of\nemployment with Verso Paper, in accordance with and subject to the terms and conditions set forth in the attached Exhibit A, and\n(ii) contribute on Employee’s behalf an amount equal to his Lost Retirement Benefits (as defined below) to the Verso Paper Deferred\nCompensation Plan. As used in this Agreement, the term “Lost Retirement Benefits” shall mean the projected value of employer contributions\nunder the Verso Paper Retirement Savings Plan, the Verso Paper Deferred Compensation Plan, and the Verso Paper Supplemental Salaried\nRetirement Savings Plan (collectively, the “Plans”) that Employee would have received had he remained actively employed with Verso Paper\nduring the twenty-four (24) months following Employee’s termination of employment with Verso Paper. The determination of the Lost\nRetirement Benefits shall be made by Verso Paper, in its sole and absolute discretion, and shall be based on (i) Employee’s monthly base salary\nin effect in the month immediately preceding the termination of his employment and (ii) the assumption that Employee’s salary deferrals\nduring such twenty-four (24) month period are in such amounts as would produce the maximum possible matching contribution by Verso\nPaper under the Plans. Verso Paper shall contribute on Employee’s behalf the value of his Lost Retirement Benefits to the Verso Paper\nDeferred Compensation Plan in a lump sum payment as soon as reasonably practicable after the determination of the Lost Retirement Benefits\nis made.\n7. Duty to Show Agreement to Prospective Employer. During Employee’s employment with Verso Paper and for twelve (12) months\nthereafter, Employee shall, prior to accepting other employment, provide a copy of this Agreement to any recruiter who assists Employee in locating\nemployment other than with Verso Paper and to any prospective employer with which Employee discusses potential employment.\n8. Representations, Warranties and Acknowledgements. In addition to the representations, warranties and obligations set forth throughout\nthis Agreement, Employee acknowledges that (a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its\nsuccess; (b) the Unauthorized use or disclosure of Protected Information or the violation of the covenants set forth in Sections 2, 3, or 4 would cause\nirreparable harm to Verso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected\nInformation; (d) Employee has developed, or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of this\nAgreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and valuable services\nto Verso Paper of an intellectual character and that Employee’s services will be difficult for Verso Paper to replace. Employee further acknowledges\nand agrees that Verso Paper is providing Employee with significant consideration in this Agreement for entering into the Agreement and that Verso\nPaper’s remedies for any breach of this Agreement are in addition to and not in place of any other remedies Verso Paper may have at law or equity or\nunder any other agreements.\n9. Section 409A of the Code. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in\naccordance with, and incorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the\nDepartment of Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof (“Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in the event\nthat Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A, Verso Paper and\nEmployee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and procedures, including\namendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment\nof the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less favorable accounting or tax\nconsequences for Verso Paper and/or (b) take such other actions as mutually determined to be necessary or appropriate to exempt any amounts\npayable hereunder from\nSection 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. In addition, and\nnotwithstanding any provision of this Agreement to the contrary, to the extent subject to Section 409A, payment to a “specified employee” as\ndefined in Section 409A(2)(B)(i) shall not be made before the date which is six (6) months after the date of termination of employment.\n10. General.\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee’s right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this Agreement\nor portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of\nsuch provisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties\nand Employee agrees, that if any court construes any provision or clause of this Agreement or any portion thereof to be illegal, void or\nunenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area or\nmatter of such provision and in its reduced form, such provision shall then be enforceable and shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the event\nof the absence of either of these executives or the vacancy of either of these positions, such other officer of Verso Paper as Verso Paper’s Board\nof Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-defaulting party all of\nthe non-defaulting party’s costs and expenses, including attorney’s and experts’ fees in enforcing the provisions of the Agreement as to which a\nbreach is found.\n(g) Employee agrees that Verso Paper’s determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee’s obligations under this Agreement.\n(h) Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the covenants set forth\nabove prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference with Verso Paper’s\nbusiness and customer relationships.\n(i) Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with an independent attorney\nbefore signing this Agreement.\n(j) This Agreement sets forth the entire agreement of the parties, and fully supersedes any and all prior agreements or understandings\nbetween the parties pertaining to the subject matter hereof.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered effective as of the date first set forth\nabove.\nVERSO PAPER HOLDINGS LLC\nBy: /s/ Michael A. Jackson\nMichael A. Jackson\nPresident and Chief Executive Officer\n/s/ Peter H. Kesser\nPeter H. Kesser\nBenefits: EXHIBIT A\nEMPLOYMENT-RELATED BENEFITS\nCoverage under Verso Paper Medical and Dental Plan for Employee and his or her eligible dependents for up to twenty-four (24) months.\nReimbursement for (i) all costs to convert to an individual policy the basic life insurance coverage on Employee’s life only, in such\namount as in effect at termination of employment, and (ii) the premiums necessary to continue such converted coverage for up to twenty-\nfour (24) months. Reimbursement shall be conditioned on Employee providing Verso Paper with satisfactory evidence that the\nconversion costs and premiums have been incurred.\nAdditional Terms and Conditions: Verso Paper shall pay Employee an amount equal to the aggregate of any and all federal, state and local income tax imposed on\nEmployee resulting from the benefits set forth above, as determined by Verso Paper in its sole and absolute discretion.\nBenefit coverage/reimbursement is subject to early termination upon Employee’s re-employment with comparable benefits available, as\ndetermined by Verso Paper in its sole and absolute discretion.\nVerso Paper reserves the right to modify, revoke, suspend, terminate or change any or all of its benefit plans, programs or policies, in\nwhole or in part, at any time and from time to time, and with or without notice, provided that any such change or modification is\napplicable to all similarly situated employees of Verso Paper.	EX-10.15 7 ex1015.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (PETER H. KESSER)\nExhibit 10.15\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (this "Agreement") is entered into as of January 1, 2008, by and between Verso Paper\nHoldings LLC, a Delaware limited liability company ("Verso Paper"), and Peter H. Kesser ("Employee"), to allow Employee to have access to\ncertain valuable competitive information and business relationships of Verso Paper while also providing protection for such information and\nrelationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions. As used in this Agreement, the terms:\n(a) "Protected Information" shall mean all information, documents or materials, owned, developed or possessed by Verso Paper or any\nemployee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso Paper takes reasonable measures to\nmaintain in secrecy, and (ii) pertains in any manner to Verso Paper's business, including but not limited to Research and Development (as\ndefined below); customers or prospective customers, targeted national accounts, or strategies or data for identifying and satisfying their needs;\npresent or prospective business relationships; present, short term, or long term strategic plans; acquisition candidates; plans for corporate\nrestructuring; products under consideration or development; cost, margin or profit information; data from which any of the foregoing types of\ninformation could be derived; human resources (including compensation information and internal evaluations of the performance, capability\nand potential of Verso Paper employees); business methods, data bases and computer programs. The fact that individual elements of the\ninformation that constitutes Protected Information may be generally known does not prevent an integrated compilation of information, whether\nor not reduced to writing, from being Protected Information if that integrated whole is not generally known.\n(b) "Research and Development" shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso Paper\noperating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and the\nimprovements and innovations relating to same; quality control procedures and equipment; identification, selection, generation and\npropagation of tree species having improved characteristics; forest resource management; innovation and improvement to manufacturing and\nconverting processes such as shipping, pulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment\nfor use in such processes; reduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use\nand optimization of raw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp\nproducts; energy conservation; computer software and application of computer controls to manufacturing\nand quality control operations and to inventory control; radio frequency identification and its use in paper and packaging products; and product\nprocess improvement development or evaluation; and (iii) information about methods, techniques, products equipment, and processes which\nVerso Paper has learned do not work or do not provide beneficial results ("negative know-how") as well as those which do work which provide\nbeneficial results.\n(c) "Unauthorized" shall mean (i) in contravention of Verso Paper's policies or procedures; (ii) otherwise inconsistent with Verso Paper's\nmeasures to protect its interests in the Protected Information; (iii) in contravention of any lawfu instruction or directive, either written or oral,\nof an Verso Paper employee empowered to issue such instruction or directive; (iv) in contravention of any duty existing under law or contract;\nor (v) to the detriment of Verso Paper.\n2. Confidentiality.\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of Vice\nPresident, General Counsel and Secretary, Employee has been and will be entrusted with Protected Information and may develop Protected\nInformation, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to competitors and others\nwho do not know it and that such information constitutes confidential and proprietary trade secrets of Verso Paper. While an employee or\nconsultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper, Employee agrees not to use or disclose,\ndirectly or indirectly, any Protected Information in an Unauthorized manner or for any Unauthorized purpose unless such information shall\nhave become generally known in the relevant industry or independently developed with no assistance from Employee. Further, promptly upon\ntermination, for any reason, of Employee's employment with Verso Paper or upon the request of Verso Paper Employee agrees to deliver to\nVerso Paper all property and materials and copies thereof within Employee's possession or control which belong to Verso Paper or which\ncontain Protected Information and to permanently delete upon Verso Paper's request all Protected Information from any computers or other\nelectronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee's employment with Verso Paper for any reason, Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information, including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all reasonable\nmeasures to prevent the Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or entities from\nobtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately notify\nVerso Paper thereof and, at Verso Paper's expense, shall consult with Verso Paper on the advisability of taking steps to resist or narrow such\nrequest and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance that the Protected\nInformation will be afforded confidential treatment. If such protective order or other appropriate remedy is not obtained, Employee shall\nfurnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be furnished.\n2\n3. Non-Competition.\n(a) Employee acknowledges and agrees that the business of Verso Paper and its customers is worldwide in scope, Verso Paper's\ncompetitors and customers are located throughout the world, and Verso Paper's strategic planning and Research and Development activities\nhave application throughout the world and are for the benefit of customers and Verso Paper's business throughout the world, and therefore, the\nrestrictions on Employee's competition after employment as described below apply to anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business. Employee acknowledges that any such competition within that geographical scope will irreparably injure\nVerso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition described below are reasonably tailored\nto protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly and\nwhether for compensation or otherwise, with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and supercalendared paper products or the operation of coated and supercalendared paper mills anywhere in the world.\n(c) After the termination of Employee's employment with Verso Paper for any reason, Employee agrees that for a period of twelve\n(12) months (the "Non-Compete Period") following such termination Employee will not compete with Verso Paper anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business:\n(i) by producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of coated\nand supercalendared paper products or the operation of coated and supercalendared paper mills;\n(ii) by engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation, financial,\nhuman resources, strategic planning, or operation duties) for, whether as an employee, consultant, or otherwise, any entity which\nproduces, develops, sells or markets in the business of coated and supercalendared paper products or the operation of coated and\nsupercalendared paper mills;\n(iii) by owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and supercalendared paper products or the operation of coated and supercalendared paper mills, provided that this\nSection 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the outstanding stock of\nany class of a corporation that is publicly traded, so long as Employee has no active participation in the business of such corporation;\nor\n(iv) by soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products, processes\nor services of the business of coated and supercalendared paper products or the operation of coated and supercalendared paper mills,\nwhether existing or contemplated for the future, on which Employee has worked, or concerning which Employee has in any manner\nacquired knowledge or Protected Information about, during the twenty four (24) months preceding termination of Employee's\nemployment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit of a multi-\ndivisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee does not engage in, oversee,\nprovide input or\n3\ninformation regarding, or participate in any manner in the activities described in this paragraph as they relate to the division or business unit which is\na competitor of Verso Paper. Employee shall not assist others in engaging in activities which Employee is not permitted to take.\n4. Non-Solicitation/Non-Hire. During the term of Employee's employment at Verso Paper and for twelve (12) months following the\ntermination, for any reason, of employment, Employee agrees that Employee will not, either on Employee's own behalf or on behalf of any other\nperson\nor\nentity,\ndirectly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity\nin\nhiring, soliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5. Tolling Period of Restrictions. Employee agrees that the periods of non-competition and non-solicitation/non-hire set forth in Sections\n3\nand 4, respectively, shall be extended by the period of violation if Employee is found to be in violation of those provisions.\n6. Post-Termination Payments and Benefits. Upon the termination of Employee's employment with Verso Paper for any reason, in\nconsideration of Employee's compliance with all his obligations under this Agreement (including, without limitation, his obligations under Sections\n2, 3(c) and 4), and provided that Employee complies with all such obligations, Verso Paper shall provide post-termination payments and benefits to\nEmployee as follows:\n(a) During the Non-Compete Period, if Employee is unable, despite diligent search, to obtain employment consistent with Employee's\nexperience and education, Employee shall so notify Verso Paper in writing, describing in reasonable detai the efforts Employee has made to\nsecure such employment that does not conflict with Employee's non-compete obligations. Upon receipt and reasonable verification of the\ninformation contained in such notice, Verso Paper shall make monthly payments to Employee in an amount equal to Employee's monthly base\nsalary in effect in the month immediately preceding the termination of his employment, less applicable tax and other withholdings, for each\nmonth (or prorated for periods less than a month) of such unemployment during the Non-Compete Period. Before the close of each month for\nwhich Employee seeks such payment, Employee shall advise Verso Paper in writing of Employee's efforts to obtain non-competitive\nemployment and shall certify that although Employee diligently sought such employment, Employee was unable to obtain it.\n(b) Verso Paper shall pay to Employee an amount equal to the sum of the incentive awards, if any, payable to Employee under the Verso\nPaper Incentive Plan (the "Incentive Plan") for (i) the year immediately preceding the year in which termination of employment occurred, to\nthe extent not previously paid to Employee, and (ii) the year in which such termination occurred, prorated for the period of the year in which\nEmployee was employed by Verso Paper, in each case less applicable tax and other withholdings (collectively, the "Incentive Payment"). The\ndetermination of the Incentive Payment shall be made by Verso Paper, in its sole and absolute discretion, and, with respect to the year in which\ntermination occurred, shall be based on (i) Employee's monthly base salary in effect in the month immediately preceding the termination of his\nemployment and (ii) the assumptions relative to the Incentive Plan that (A) Employee was employed by Verso Paper during the entire year and\nis otherwise eligible and qualified to receive the Incentive Payment, (B) Employee's monthly base salary remained in effect and was not\nchanged during the remainder of the year, and (C) Employee achieved all of his individual performance measures, if any, during the year.\nVerso Paper shall make the Incentive Payment to Employee at the same time that it makes other incentive payments under the Incentive Plan to\nthe employees of Verso Paper.\n(c) Verso Paper shall (i) continue Employee's coverage of the employment-related benefits described in Exhibit A for up to twenty-four\n(24) months following Employee's termination of\n4\nemployment with Verso Paper, in accordance with and subject to the terms and conditions set forth in the attached Exhibit A,\nand\n(ii) contribute on Employee's behalf an amount equal to his Lost Retirement Benefits (as defined below) to the Verso Paper Deferred\nCompensation Plan. As used in this Agreement, the term "Lost Retirement Benefits" shall mean the projected value of employer contributions\nunder the Verso Paper Retirement Savings Plan, the Verso Paper Deferred Compensation Plan, and the Verso Paper Supplemental Salaried\nRetirement Savings Plan (collectively, the "Plans") that Employee would have received had he remained actively employed with Verso Paper\nduring the twenty-four (24) months following Employee's termination of employment with Verso Paper. The determination of the Lost\nRetirement Benefits shall be made by Verso Paper, in its sole and absolute discretion, and shall be based on (i) Employee's monthly base salary\nin effect in the month immediately preceding the termination of his employment and (ii) the assumption that Employee's salary deferrals\nduring such twenty-four (24) month period are in such amounts as would produce the maximum possible matching contribution by Verso\nPaper under the Plans. Verso Paper shall contribute on Employee's behalf the value of his Lost Retirement Benefits to the Verso Paper\nDeferred Compensation Plan in a lump sum payment as soon as reasonably practicable after the determination of the Lost Retirement Benefits\nis made.\n7. Duty to Show Agreement to Prospective Employer. During Employee's employment with Verso Paper and for twelve (12) months\nthereafter, Employee shall, prior to accepting other employment, provide a copy of this Agreement to any recruiter who assists Employee in locating\nemployment other than with Verso Paper and to any prospective employer with which Employee discusses potential employment.\n8. Representations, Warranties and Acknowledgements. In addition to the representations, warranties and obligations set forth throughout\nthis Agreement, Employee acknowledges that (a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its\nsuccess; (b) the Unauthorized use or disclosure of Protected Information or the violation of the covenants set forth in Sections 2, 3, or 4 would cause\nirreparable harm to Verso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected\nInformation; (d) Employee has developed, or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of this\nAgreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and valuable services\nto Verso Paper of an intellectual character and that Employee's services will be difficult for Verso Paper to replace. Employee further acknowledges\nand agrees that Verso Paper is providing Employee with significant consideration in this Agreement for entering into the Agreement and that Verso\nPaper's remedies for any breach of this Agreement are in addition to and not in place of any other remedies Verso Paper may have at law or equity or\nunder any other agreements.\n9. Section 409A of the Code. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in\naccordance with, and incorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the\nDepartment of Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof ("Section 409A"). Notwithstanding any provision of this Agreement to the contrary, in the event\nthat Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A, Verso Paper and\nEmployee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and procedures, including\namendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment\nof the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less favorable accounting or tax\nconsequences for Verso Paper and/or (b) take such other actions as mutually determined to be necessary or appropriate to exempt any amounts\npayable hereunder from\n5\nSection 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. In addition, and\nnotwithstanding any provision of this Agreement to the contrary, to the extent subject to Section 409A, payment to a "specified employee"\nas\ndefined in Section 409A(2)(B)(i) shall not be made before the date which is six (6) months after the date of termination of employment.\n10. General.\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee's right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this Agreement\nor portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of\nsuch provisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties\nand Employee agrees, that if any court construes any provision or clause of this Agreement or any portion thereof to be illegal, void\nor\nunenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area or\nmatter of such provision and in its reduced form, such provision shall then be enforceable and shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in\na\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the event\nof the absence of either of these executives or the vacancy of either of these positions, such other officer of Verso Paper as Verso Paper's Board\nof Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-defaulting party all of\nthe non-defaulting party's costs and expenses, including attorney's and experts' fees in enforcing the provisions of the Agreement as to which a\nbreach is found.\n(g) Employee agrees that Verso Paper's determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee's obligations under this Agreement.\n(h) Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the covenants set forth\nabove prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference with Verso Paper's\nbusiness and customer relationships.\n(i) Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with an independent attorney\nbefore signing this Agreement.\n6\n(j) This Agreement sets forth the entire agreement of the parties, and fully supersedes any and all prior agreements or understandings\nbetween the parties pertaining to the subject matter hereof.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered effective as of the date first set forth\nabove.\nVERSO PAPER HOLDINGS LLC\nBy: /s/ Michael A. Jackson\nMichael A. Jackson\nPresident and Chief Executive Officer\n/s/ Peter H. Kesser\nPeter H. Kesser\n7\nEXHIBIT A\nEMPLOYMENT-RELATED BENEFITS\nBenefits:\nCoverage under Verso Paper Medical and Dental Plan for Employee and his or her eligible dependents for up to twenty-four (24) months.\nReimbursement for (i) all costs to convert to an individual policy the basic life insurance coverage on Employee's life only, in such\namount as in effect at termination of employment, and (ii) the premiums necessary to continue such converted coverage for up to twenty-\nfour (24) months. Reimbursement shall be conditioned on Employee providing Verso Paper with satisfactory evidence that the\nconversion costs and premiums have been incurred.\nAdditional Terms and Conditions:\nVerso Paper shall pay Employee an amount equal to the aggregate of any and all federal, state and local income tax imposed on\nEmployee resulting from the benefits set forth above, as determined by Verso Paper in its sole and absolute discretion.\nBenefit coverage/reimbursement is subject to early termination upon Employee's re-employment with comparable benefits available, as\ndetermined by Verso Paper in its sole and absolute discretion.\nVerso Paper reserves the right to modify, revoke, suspend, terminate or change any or all of its benefit plans, programs or policies, in\nwhole or in part, at any time and from time to time, and with or without notice, provided that any such change or modification is\napplicable to all similarly situated employees of Verso Paper.\n8	EX-10.15 7 dex1015.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (PETER H. KESSER)\nExhibit 10.15\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (this “Agreement”) is entered into as of January 1, 2008, by and between Verso Paper\nHoldings LLC, a Delaware limited liability company (“Verso Paper”), and Peter H. Kesser (“Employee”), to allow Employee to have access to\ncertain valuable competitive information and business relationships of Verso Paper while also providing protection for such information and\nrelationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions. As used in this Agreement, the terms:\n(a) “Protected Information” shall mean all information, documents or materials, owned, developed or possessed by Verso Paper or any\nemployee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso Paper takes reasonable measures to\nmaintain in secrecy, and (ii) pertains in any manner to Verso Paper’s business, including but not limited to Research and Development (as\ndefined below); customers or prospective customers, targeted national accounts, or strategies or data for identifying and satisfying their needs;\npresent or prospective business relationships; present, short term, or long term strategic plans; acquisition candidates; plans for corporate\nrestructuring; products under consideration or development; cost, margin or profit information; data from which any of the foregoing types of\ninformation could be derived; human resources (including compensation information and internal evaluations of the performance, capability\nand potential of Verso Paper employees); business methods, data bases and computer programs. The fact that individual elements of the\ninformation that constitutes Protected Information may be generally known does not prevent an integrated compilation of information, whether\nor not reduced to writing, from being Protected Information if that integrated whole is not generally known.\n(b) “Research and Development” shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso Paper\noperating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and the\nimprovements and innovations relating to same; quality control procedures and equipment; identification, selection, generation and\npropagation of tree species having improved characteristics; forest resource management; innovation and improvement to manufacturing and\nconverting processes such as shipping, pulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment\nfor use in such processes; reduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use\nand optimization of raw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp\nproducts; energy conservation; computer software and application of computer controls to manufacturing\nand quality control operations and to inventory control; radio frequency identification and its use in paper and packaging products; and product\nprocess improvement development or evaluation; and (iii) information about methods, techniques, products equipment, and processes which\nVerso Paper has learned do not work or do not provide beneficial results (“negative know-how”) as well as those which do work which provide\nbeneficial results.\n(c) “Unauthorized” shall mean (i) in contravention of Verso Paper’s policies or procedures; (ii) otherwise inconsistent with Verso Paper’s\nmeasures to protect its interests in the Protected Information; (iii) in contravention of any lawful instruction or directive, either written or oral,\nof an Verso Paper employee empowered to issue such instruction or directive; (iv) in contravention of any duty existing under law or contract;\nor (v) to the detriment of Verso Paper.\n2. Confidentiality.\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of Vice\nPresident, General Counsel and Secretary, Employee has been and will be entrusted with Protected Information and may develop Protected\nInformation, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to competitors and others\nwho do not know it and that such information constitutes confidential and proprietary trade secrets of Verso Paper. While an employee or\nconsultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper, Employee agrees not to use or disclose,\ndirectly or indirectly, any Protected Information in an Unauthorized manner or for any Unauthorized purpose unless such information shall\nhave become generally known in the relevant industry or independently developed with no assistance from Employee. Further, promptly upon\ntermination, for any reason, of Employee’s employment with Verso Paper or upon the request of Verso Paper Employee agrees to deliver to\nVerso Paper all property and materials and copies thereof within Employee’s possession or control which belong to Verso Paper or which\ncontain Protected Information and to permanently delete upon Verso Paper’s request all Protected Information from any computers or other\nelectronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee’s employment with Verso Paper for any reason, Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information, including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all reasonable\nmeasures to prevent the Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or entities from\nobtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately notify\nVerso Paper thereof and, at Verso Paper’s expense, shall consult with Verso Paper on the advisability of taking steps to resist or narrow such\nrequest and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance that the Protected\nInformation will be afforded confidential treatment. If such protective order or other appropriate remedy is not obtained, Employee shall\nfurnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be furnished.\n2\n3. Non-Competition.\n(a) Employee acknowledges and agrees that the business of Verso Paper and its customers is worldwide in scope, Verso Paper ’s\ncompetitors and customers are located throughout the world, and Verso Paper’s strategic planning and Research and Development activities\nhave application throughout the world and are for the benefit of customers and Verso Paper’s business throughout the world, and therefore, the\nrestrictions on Employee’s competition after employment as described below apply to anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business. Employee acknowledges that any such competition within that geographical scope will irreparably injure\nVerso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition described below are reasonably tailored\nto protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly and\nwhether for compensation or otherwise, with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and supercalendared paper products or the operation of coated and supercalendared paper mills anywhere in the world.\n(c) After the termination of Employee’s employment with Verso Paper for any reason, Employee agrees that for a period of twelve\n(12) months (the “Non-Compete Period”) following such termination Employee will not compete with Verso Paper anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business:\n(i) by producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of coated\nand supercalendared paper products or the operation of coated and supercalendared paper mills;\n(ii) by engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation, financial,\nhuman resources, strategic planning, or operation duties) for, whether as an employee, consultant, or otherwise, any entity which\nproduces, develops, sells or markets in the business of coated and supercalendared paper products or the operation of coated and\nsupercalendared paper mills;\n(iii) by owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and supercalendared paper products or the operation of coated and supercalendared paper mills, provided that this\nSection 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the outstanding stock of\nany class of a corporation that is publicly traded, so long as Employee has no active participation in the business of such corporation; or\n(iv) by soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products, processes\nor services of the business of coated and supercalendared paper products or the operation of coated and supercalendared paper mills,\nwhether existing or contemplated for the future, on which Employee has worked, or concerning which Employee has in any manner\nacquired knowledge or Protected Information about, during the twenty four (24) months preceding termination of Employee’s\nemployment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit of a multi-\ndivisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee does not engage in, oversee,\nprovide input or\n3\ninformation regarding, or participate in any manner in the activities described in this paragraph as they relate to the division or business unit which is\na competitor of Verso Paper. Employee shall not assist others in engaging in activities which Employee is not permitted to take.\n4. Non-Solicitation/Non-Hire. During the term of Employee’s employment at Verso Paper and for twelve (12) months following the\ntermination, for any reason, of employment, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other\nperson or entity, directly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in\nhiring, soliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5. Tolling Period of Restrictions. Employee agrees that the periods of non-competition and non-solicitation/non-hire set forth in Sections 3\nand 4, respectively, shall be extended by the period of violation if Employee is found to be in violation of those provisions.\n6. Post-Termination Payments and Benefits. Upon the termination of Employee’s employment with Verso Paper for any reason, in\nconsideration of Employee’s compliance with all his obligations under this Agreement (including, without limitation, his obligations under Sections\n2, 3(c) and 4), and provided that Employee complies with all such obligations, Verso Paper shall provide post-termination payments and benefits to\nEmployee as follows:\n(a) During the Non-Compete Period, if Employee is unable, despite diligent search, to obtain employment consistent with Employee’s\nexperience and education, Employee shall so notify Verso Paper in writing, describing in reasonable detail the efforts Employee has made to\nsecure such employment that does not conflict with Employee’s non-compete obligations. Upon receipt and reasonable verification of the\ninformation contained in such notice, Verso Paper shall make monthly payments to Employee in an amount equal to Employee’s monthly base\nsalary in effect in the month immediately preceding the termination of his employment, less applicable tax and other withholdings, for each\nmonth (or prorated for periods less than a month) of such unemployment during the Non-Compete Period. Before the close of each month for\nwhich Employee seeks such payment, Employee shall advise Verso Paper in writing of Employee’s efforts to obtain non-competitive\nemployment and shall certify that although Employee diligently sought such employment, Employee was unable to obtain it.\n(b) Verso Paper shall pay to Employee an amount equal to the sum of the incentive awards, if any, payable to Employee under the Verso\nPaper Incentive Plan (the “Incentive Plan”) for (i) the year immediately preceding the year in which termination of employment occurred, to\nthe extent not previously paid to Employee, and (ii) the year in which such termination occurred, prorated for the period of the year in which\nEmployee was employed by Verso Paper, in each case less applicable tax and other withholdings (collectively, the “Incentive Payment”). The\ndetermination of the Incentive Payment shall be made by Verso Paper, in its sole and absolute discretion, and, with respect to the year in which\ntermination occurred, shall be based on (i) Employee’s monthly base salary in effect in the month immediately preceding the termination of his\nemployment and (ii) the assumptions relative to the Incentive Plan that (A) Employee was employed by Verso Paper during the entire year and\nis otherwise eligible and qualified to receive the Incentive Payment, (B) Employee’s monthly base salary remained in effect and was not\nchanged during the remainder of the year, and (C) Employee achieved all of his individual performance measures, if any, during the year.\nVerso Paper shall make the Incentive Payment to Employee at the same time that it makes other incentive payments under the Incentive Plan to\nthe employees of Verso Paper.\n(c) Verso Paper shall (i) continue Employee’s coverage of the employment-related benefits described in Exhibit A for up to twenty-four\n(24) months following Employee’s termination of\n4\nemployment with Verso Paper, in accordance with and subject to the terms and conditions set forth in the attached Exhibit A, and\n(ii) contribute on Employee’s behalf an amount equal to his Lost Retirement Benefits (as defined below) to the Verso Paper Deferred\nCompensation Plan. As used in this Agreement, the term “Lost Retirement Benefits” shall mean the projected value of employer contributions\nunder the Verso Paper Retirement Savings Plan, the Verso Paper Deferred Compensation Plan, and the Verso Paper Supplemental Salaried\nRetirement Savings Plan (collectively, the “Plans”) that Employee would have received had he remained actively employed with Verso Paper\nduring the twenty-four (24) months following Employee’s termination of employment with Verso Paper. The determination of the Lost\nRetirement Benefits shall be made by Verso Paper, in its sole and absolute discretion, and shall be based on (i) Employee’s monthly base salary\nin effect in the month immediately preceding the termination of his employment and (ii) the assumption that Employee’s salary deferrals\nduring such twenty-four (24) month period are in such amounts as would produce the maximum possible matching contribution by Verso\nPaper under the Plans. Verso Paper shall contribute on Employee’s behalf the value of his Lost Retirement Benefits to the Verso Paper\nDeferred Compensation Plan in a lump sum payment as soon as reasonably practicable after the determination of the Lost Retirement Benefits\nis made.\n7. Duty to Show Agreement to Prospective Employer. During Employee’s employment with Verso Paper and for twelve (12) months\nthereafter, Employee shall, prior to accepting other employment, provide a copy of this Agreement to any recruiter who assists Employee in locating\nemployment other than with Verso Paper and to any prospective employer with which Employee discusses potential employment.\n8. Representations, Warranties and Acknowledgements. In addition to the representations, warranties and obligations set forth throughout\nthis Agreement, Employee acknowledges that (a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its\nsuccess; (b) the Unauthorized use or disclosure of Protected Information or the violation of the covenants set forth in Sections 2, 3, or 4 would cause\nirreparable harm to Verso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected\nInformation; (d) Employee has developed, or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of this\nAgreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and valuable services\nto Verso Paper of an intellectual character and that Employee’s services will be difficult for Verso Paper to replace. Employee further acknowledges\nand agrees that Verso Paper is providing Employee with significant consideration in this Agreement for entering into the Agreement and that Verso\nPaper’s remedies for any breach of this Agreement are in addition to and not in place of any other remedies Verso Paper may have at law or equity or\nunder any other agreements.\n9. Section 409A of the Code. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in\naccordance with, and incorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the\nDepartment of Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof (“Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in the event\nthat Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A, Verso Paper and\nEmployee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and procedures, including\namendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment\nof the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less favorable accounting or tax\nconsequences for Verso Paper and/or (b) take such other actions as mutually determined to be necessary or appropriate to exempt any amounts\npayable hereunder from\n5\nSection 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. In addition, and\nnotwithstanding any provision of this Agreement to the contrary, to the extent subject to Section 409A, payment to a “specified employee” as\ndefined in Section 409A(2)(B)(i) shall not be made before the date which is six (6) months after the date of termination of employment.\n10. General.\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee’s right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this Agreement\nor portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of\nsuch provisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties\nand Employee agrees, that if any court construes any provision or clause of this Agreement or any portion thereof to be illegal, void or\nunenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area or\nmatter of such provision and in its reduced form, such provision shall then be enforceable and shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the event\nof the absence of either of these executives or the vacancy of either of these positions, such other officer of Verso Paper as Verso Paper’s Board\nof Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-defaulting party all of\nthe non-defaulting party’s costs and expenses, including attorney’s and experts’ fees in enforcing the provisions of the Agreement as to which a\nbreach is found.\n(g) Employee agrees that Verso Paper’s determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee’s obligations under this Agreement.\n(h) Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the covenants set forth\nabove prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference with Verso Paper’s\nbusiness and customer relationships.\n(i) Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with an independent attorney\nbefore signing this Agreement.\n6\n(j) This Agreement sets forth the entire agreement of the parties, and fully supersedes any and all prior agreements or understandings\nbetween the parties pertaining to the subject matter hereof.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered effective as of the date first set forth\nabove.\nVERSO PAPER HOLDINGS LLC\nBy: /s/ Michael A. Jackson\nMichael A. Jackson\nPresident and Chief Executive Officer\n/s/ Peter H. Kesser\nPeter H. Kesser\n7\nEXHIBIT A\nEMPLOYMENT-RELATED BENEFITS\nBenefits:\n•\nCoverage under Verso Paper Medical and Dental Plan for Employee and his or her eligible dependents for up to twenty-four (24) months.\n•\nReimbursement for (i) all costs to convert to an individual policy the basic life insurance coverage on Employee’s life only, in such\namount as in effect at termination of employment, and (ii) the premiums necessary to continue such converted coverage for up to twenty-\nfour (24) months. Reimbursement shall be conditioned on Employee providing Verso Paper with satisfactory evidence that the\nconversion costs and premiums have been incurred.\nAdditional Terms and Conditions:\n•\nVerso Paper shall pay Employee an amount equal to the aggregate of any and all federal, state and local income tax imposed on\nEmployee resulting from the benefits set forth above, as determined by Verso Paper in its sole and absolute discretion.\n•\nBenefit coverage/reimbursement is subject to early termination upon Employee’s re-employment with comparable benefits available, as\ndetermined by Verso Paper in its sole and absolute discretion.\n•\nVerso Paper reserves the right to modify, revoke, suspend, terminate or change any or all of its benefit plans, programs or policies, in\nwhole or in part, at any time and from time to time, and with or without notice, provided that any such change or modification is\napplicable to all similarly situated employees of Verso Paper.\n8
166bf14efa1bffc8a4eb590fd598c7f7.pdf	effective_date jurisdiction party term	EX-10.20 26 dex1020.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nEXHIBIT 10.20\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (the “Agreement”), dated as of September 10, 2008, is by and between Net Talk.com,\nInc., (f/k/a Discover Screens, Inc.), a Florida corporation whose principal place of business is located at 1100 NW 163 Drive Miami, Florida 33169\n(the “Company”) and\n(“Employee”), an individual currently residing at the address set forth on the signature page to this Agreement.\nBACKGROUND INFORMATION\nThe Company wishes to secure the employment services of Employee and Employee is willing to be so employed. In connection with such\nemployment, Employee will receive confidential and proprietary information about the Company and its business affairs during the course of his or\nher employment with the Company. The parties agree that the Confidential Information (as that term is defined below) is a valuable asset of the\nCompany, would allow Employee to unfairly compete against the Company and, if disclosed, would cause the Company significant and irreparable\nharm. As such, as a condition precedent to the Company’s employment of Employee, Employee is required to enter into and execute this Agreement.\nAccordingly, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by each of the parties, the parties\nagree as follows:\nOPERATIVE PROVISIONS\n1. Confidentiality; Return of Company Property. During Employee’s relationship with the Company (including his relationship with the\nCompany prior to the date of this Agreement), Employee has been and/or will be exposed to and has received or will receive confidential and\nproprietary information of the Company or its Affiliates, including but not limited to lists of Customers or proposed Customers, technical\ninformation, computer software, know-how, processes, business and marketing plans, strategies, training and operational procedures, information\nconcerning the Company’s products, promotions, development, financing, business policies and practices, formulae, patterns, compilations,\ndatabases, programs, devices, methods, techniques, or processes, and other forms of information in the nature of trade secrets (collectively, the\n“Confidential Information”). From the date of execution hereof and for as long as the information or data remains Confidential Information,\nEmployee shall not use, disclose, or permit any person to obtain any Confidential Information of the Company. Employee agrees that he will protect\nthe Confidential Information by using all reasonable care, and further agrees that he will not disclose, transfer, use, copy, or allow third parties access\nto any such Confidential Information, except as expressly authorized by the Company. To the extent Confidential Information of the Company does\nnot qualify as a trade secret under applicable law, it will nonetheless be protected under this Agreement. Upon the request of the Company, but in\nany event upon termination of Employee’s employment with the Company, Employee shall surrender to the Company all memoranda, notes, records,\ndrawings, manuals, computer software, and other documents or materials (and all copies thereof) furnished by the Company to the Employee,\nincluding all Confidential Information. This section is intended to apply to all materials made or compiled by Employee, as well as to all materials\nfurnished to Employee by the Company or by anyone else. The obligations of this Section 1 will be in addition to any other agreements that\nEmployee has entered into with the Company regarding the receipt of Confidential Information.\n2. Non-Solicitation; Non-Disparagement. During the term of Employee’s employment with the Company and for the two (2) year period\nfollowing the termination of Employee’s employment with the Company for any or no reason, Employee will not, and Employee will cause his\nAffiliates to not, directly or indirectly: (i) solicit for employment, or employ any person who, at the time of such solicitation or employment, is an\nemployee or independent contractor of the Company or its Affiliates or\n-1-\nwas employed or engaged by the Company or its Affiliates during the twelve month period prior to the solicitation or employment or induce or\nattempt to induce any person to terminate his employment or engagement with the Company or its Affiliates; (ii) do business with or solicit\nCustomers of the Company or its Affiliates, or engage in any activity intended to terminate, disrupt or interfere with the Company or its Affiliate’s\nrelationships with their Customers; or (iii) engage in any conduct or make any statement disparaging or criticizing the Company or its Affiliates, or\nany products or services offered by the Company or its Affiliates.\n3. Non-Competition. During the term of Employee’s employment with the Company and for the two (2) year period following the termination\nof Employee’s employment with the Company for any or no reason, Employee will not, and Employee will cause his Affiliates to not, directly or\nindirectly, alone or in conjunction with any other person or entity, own, manage, operate or control or participate in the ownership, management,\noperation or control of, or become associated, as an employee, director, officer, advisor, agent, consultant, principal, partner, member or independent\ncontractor with or lender to, any person or entity engaged in or aiding others to engage in business competitive with the Company, located anywhere\nin the United States of America.\n4. Divisibility of Covenant Period. If any covenant contained in this Agreement is held to be unreasonable, arbitrary or against public policy,\nsuch covenant shall be considered divisible both as to time, Customers, competitive services and geographical area, such that each month within the\nspecified period shall be deemed a separate period of time, each Customer a separate customer, each competitive service a separate service and each\ngeographical area a separate geographical area, resulting in an intended requirement that the longest lesser time and largest lesser customer base,\nservice offering and geographical area determined not to be unreasonable, arbitrary or against public policy shall remain effective and be specifically\nenforceable against Employee.\n5. Enforcement. Employee acknowledges that (i) the restrictions contained in this Agreement are reasonable in scope and are necessary to\nprotect the Company’s legitimate interests in protecting its business, and (ii) any violation of the restrictions contained in this Agreement will cause\nsignificant and irreparable harm to the Company for which the Company has no adequate remedy at law. The parties agree that damages at law,\nincluding, but not limited to monetary damages, will or may be an insufficient remedy to the Company and that (in addition to any remedies that are\navailable to the Company, all of which shall be deemed to be cumulative and retained by the Company and not waived by the enforcement of any\nremedy available hereunder) the Company shall also be entitled to obtain injunctive relief, including but not limited to a temporary restraining order,\na temporary or preliminary injunction or a permanent injunction, to enforce the provisions of this Agreement, as well as an equitable accounting of\nand constructive trust for all profits or other benefits arising out of or related to any such violation, all of which shall constitute rights and remedies\nto which the Company may be entitled.\n6. Miscellaneous Provisions.\na. Definitions.\ni. Affiliate. The term “Affiliate” when used in this Agreement shall mean any other person or entity that directly or indirectly\ncontrols, or is under common control with, or is controlled by the specified person or entity, and if a person, any member of the immediate family of\nsuch individual. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under\n-2-\ncommon control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether\nthrough ownership of securities or partnership or other ownership interests, by contract, or otherwise) and “immediate family” shall mean any\nparent, child, grandchild, spouse, or sibling.\nii. Customers. The term “Customers” when used in this Agreement shall mean those persons who are or were customers, clients\nor distributors of the Company, predecessors of the Company, or Affiliates of the Company, as well as any prospective customers, clients or\ndistributors of the Company or Affiliates of the Company.\niii. Business Competitive with the Company. The term “business competitive with the Company” when used in this Agreement\nshall mean any business that offers, provides, sells or supplies commercial or residential telecommunication services, including without limitation,\nservices utilizing voice over internet protocol (VoIP) technology, session initiation protocol (SIP) technology, wireless fidelity technology, wireless\nmaximum technology, marine satellite services technology and other similar type technologies.\nb. Notices. All notices under this Agreement shall be in writing and shall be considered as properly given or made if hand delivered, sent\nby certified mail, overnight delivery service, facsimile or e-mail and addressed to the location set forth in the preamble to this Agreement or to such\nother address as any party may have designated by like notice furnished to all other parties hereto. All notices shall be deemed effective when\ndeposited in the U.S. mail, received by an overnight carrier or other delivery service or, when sent by facsimile or e-mail, when confirmation of\ndelivery is obtained by the sender.\nc. Assignment. This Agreement, including, but not limited to the agreements contained in Sections 2 and 3 regarding non-competition,\nnon-disparagement and non-solicitation, shall be assignable by the Company without the need to obtain the consent of Employee. This Agreement\nshall inure to the benefit of and be enforceable by the successors and assigns of the Company, including, without limitation, any successor or assign\nto all or substantially all of the business and/or assets of the Company, whether direct or indirect, by purchase, merger, consolidation, acquisition of\nstock or otherwise.\nd. Application of Florida Law; Jurisdiction. This Agreement, and the application or interpretation thereof, shall be governed exclusively\nby its terms and by the laws of the State of Florida. Venue for all purposes shall be deemed to lie within Hillsborough County, Florida. The parties\nagree that this Agreement is one for performance in Florida. The parties to this Agreement agree that they waive any objection, constitutional,\nstatutory or otherwise, to a Florida court’s exercise of jurisdiction over any dispute between them and specifically consent to the jurisdiction of the\nFlorida courts. By entering into this Agreement, the parties, and each of them understand that they may be called upon to answer a claim asserted in\na Florida court.\ne. Legal Fees and Costs. If a legal action is initiated by any party to this Agreement against the other party arising out of or relating to the\nalleged performance or non-performance of any right or obligation established hereunder, any and all fees, costs and expenses reasonably incurred\nby each successful party or its legal counsel in investigating, preparing for, prosecuting, defending against, or providing evidence, producing\ndocuments or taking any other action in respect of, such action shall be the obligation of and shall be paid or reimbursed by the unsuccessful party.\n-3-\nf. Waiver of Jury Trial. The parties hereby acknowledge that any dispute arising out of this Agreement will necessarily include various\ncomplicated legal and factual issues and therefore knowingly, voluntarily and intentionally waive trial by jury in any litigation in any court with\nrespect to, in connection with or arising out of this Agreement, or the validity, interpretation, or enforcement hereof.\ng. Waiver. The waiver by the Company of a breach of this Agreement shall not be construed as a waiver of any subsequent breach by\nEmployee. The refusal or failure of the Company to enforce the restrictive covenants contained herein or contained in any other similar agreement\nagainst any other employee, agent or independent contractor of the Company, for any reason, shall not constitute a defense to the enforcement of this\nAgreement by the Company against Employee, nor shall it give rise to any claim or cause of action by Employee against the Company.\nh. Acknowledgments. Employee acknowledges that he has been provided with a copy of this Agreement for review prior to signing it,\nthat the Company has encouraged Employee to have this Agreement reviewed by his attorney prior to signing it and that Employee understands the\npurposes and effects of this Agreement.\n[Signature Page Follows]\n-4-\nIN WITNESS WHEREOF, the parties hereto have executed this Confidentiality and Non-Competition Agreement as of the date first written\nabove.\nNET TALK.COM, INC.\nAnastasios Kyriakides, Chief Executive Officer\nEMPLOYEE\nAddress:\nFacsimile:\nPhone:\nEmail:\n[Signature Page to the Confidentiality and Non-Competition Agreement]\n-5-	EX-10.20 26 dex1020.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nEXHIBIT 10.20\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (the “Agreement”), dated as of September 10, 2008, is by and between Net Talk.com,\nInc., (f/k/a Discover Screens, Inc.), a Florida corporation whose principal place of business is located at 1100 NW 163 Drive Miami, Florida 33169\n(the “Company”) and (“Employee”), an individual currently residing at the address set forth on the signature page to this Agreement.\nBACKGROUND INFORMATION\nThe Company wishes to secure the employment services of Employee and Employee is willing to be so employed. In connection with such\nemployment, Employee will receive confidential and proprietary information about the Company and its business affairs during the course of his or\nher employment with the Company. The parties agree that the Confidential Information (as that term is defined below) is a valuable asset of the\nCompany, would allow Employee to unfairly compete against the Company and, if disclosed, would cause the Company significant and irreparable\nharm. As such, as a condition precedent to the Company’s employment of Employee, Employee is required to enter into and execute this Agreement.\nAccordingly, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by each of the parties, the parties\nagree as follows:\nOPERATIVE PROVISIONS\nCompany prior to the date of this Agreement), Employee has been and/or will be exposed to and has received or will receive confidential and\nproprietary information of the Company or its Affiliates, including but not limited to lists of Customers or proposed Customers, technical\ninformation, computer software, know-how, processes, business and marketing plans, strategies, training and operational procedures, information\nconcerning the Company’s products, promotions, development, financing, business policies and practices, formulae, patterns, compilations,\ndatabases, programs, devices, methods, techniques, or processes, and other forms of information in the nature of trade secrets (collectively, the\n“Confidential Information”). From the date of execution hereof and for as long as the information or data remains Confidential Information,\nEmployee shall not use, disclose, or permit any person to obtain any Confidential Information of the Company. Employee agrees that he will protect\nthe Confidential Information by using all reasonable care, and further agrees that he will not disclose, transfer, use, copy, or allow third parties access\nto any such Confidential Information, except as expressly authorized by the Company. To the extent Confidential Information of the Company does\nnot qualify as a trade secret under applicable law, it will nonetheless be protected under this Agreement. Upon the request of the Company, but in\nany event upon termination of Employee’s employment with the Company, Employee shall surrender to the Company all memoranda, notes, records,\ndrawings, manuals, computer software, and other documents or materials (and all copies thereof) furnished by the Company to the Employee,\nincluding all Confidential Information. This section is intended to apply to all materials made or compiled by Employee, as well as to all materials\nfurnished to Employee by the Company or by anyone else. The obligations of this Section 1 will be in addition to any other agreements that\nEmployee has entered into with the Company regarding the receipt of Confidential Information.\n2. Non-Solicitation; Non-Disparagement. During the term of Employee’s employment with the Company and for the two (2) year period\nfollowing the termination of Employee’s employment with the Company for any or no reason, Employee will not, and Employee will cause his\nAffiliates to not, directly or indirectly: (i) solicit for employment, or employ any person who, at the time of such solicitation or employment, is an\nemployee or independent contractor of the Company or its Affiliates or\n-1-\nwas employed or engaged by the Company or its Affiliates during the twelve month period prior to the solicitation or employment or induce or\nattempt to induce any person to terminate his employment or engagement with the Company or its Affiliates; (ii) do business with or solicit\nCustomers of the Company or its Affiliates, or engage in any activity intended to terminate, disrupt or interfere with the Company or its Affiliate’s\nrelationships with their Customers; or (iii) engage in any conduct or make any statement disparaging or criticizing the Company or its Affiliates, or\nany products or services offered by the Company or its Affiliates.\n3. Non-Competition. During the term of Employee’s employment with the Company and for the two (2) year period following the termination\nof Employee’s employment with the Company for any or no reason, Employee will not, and Employee will cause his Affiliates to not, directly or\nindirectly, alone or in conjunction with any other person or entity, own, manage, operate or control or participate in the ownership, management,\noperation or control of, or become associated, as an employee, director, officer, advisor, agent, consultant, principal, partner, member or independent\ncontractor with or lender to, any person or entity engaged in or aiding others to engage in business competitive with the Company, located anywhere\nin the United States of America.\n4. Divisibility of Covenant Period. If any covenant contained in this Agreement is held to be unreasonable, arbitrary or against public policy,\nsuch covenant shall be considered divisible both as to time, Customers, competitive services and geographical area, such that each month within the\nspecified period shall be deemed a separate period of time, each Customer a separate customer, each competitive service a separate service and each\ngeographical area a separate geographical area, resulting in an intended requirement that the longest lesser time and largest lesser customer base,\nservice offering and geographical area determined not to be unreasonable, arbitrary or against public policy shall remain effective and be specifically\nenforceable against Employee.\n5. Enforcement. Employee acknowledges that (i) the restrictions contained in this Agreement are reasonable in scope and are necessary to\nprotect the Company’s legitimate interests in protecting its business, and (ii) any violation of the restrictions contained in this Agreement will cause\nsignificant and irreparable harm to the Company for which the Company has no adequate remedy at law. The parties agree that damages at law,\nincluding, but not limited to monetary damages, will or may be an insufficient remedy to the Company and that (in addition to any remedies that are\navailable to the Company, all of which shall be deemed to be cumulative and retained by the Company and not waived by the enforcement of any\nremedy available hereunder) the Company shall also be entitled to obtain injunctive relief, including but not limited to a temporary restraining order,\na temporary or preliminary injunction or a permanent injunction, to enforce the provisions of this Agreement, as well as an equitable accounting of\nand constructive trust for all profits or other benefits arising out of or related to any such violation, all of which shall constitute rights and remedies\nto which the Company may be entitled.\n6. Miscellaneous Provisions.\na. Definitions.\ni. Affiliate. The term “Affiliate” when used in this Agreement shall mean any other person or entity that directly or indirectly\ncontrols, or is under common control with, or is controlled by the specified person or entity, and if a person, any member of the immediate family of\nsuch individual. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under\n \n_2-\ncommon control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether\nthrough ownership of securities or partnership or other ownership interests, by contract, or otherwise) and “immediate family” shall mean any\nparent, child, grandchild, spouse, or sibling.\nii. Customers. The term “Customers” when used in this Agreement shall mean those persons who are or were customers, clients\nor distributors of the Company, predecessors of the Company, or Affiliates of the Company, as well as any prospective customers, clients or\ndistributors of the Company or Affiliates of the Company.\niii. Business Competitive with the Company. The term “business competitive with the Company” when used in this Agreement\nshall mean any business that offers, provides, sells or supplies commercial or residential telecommunication services, including without limitation,\nservices utilizing voice over internet protocol (VoIP) technology, session initiation protocol (SIP) technology, wireless fidelity technology, wireless\nmaximum technology, marine satellite services technology and other similar type technologies.\nb. Notices. All notices under this Agreement shall be in writing and shall be considered as properly given or made if hand delivered, sent\nby certified mail, overnight delivery service, facsimile or e-mail and addressed to the location set forth in the preamble to this Agreement or to such\nother address as any party may have designated by like notice furnished to all other parties hereto. All notices shall be deemed effective when\ndeposited in the U.S. mail, received by an overnight carrier or other delivery service or, when sent by facsimile or e-mail, when confirmation of\ndelivery is obtained by the sender.\nc. Assignment. This Agreement, including, but not limited to the agreements contained in Sections 2 and 3 regarding non-competition,\nnon-disparagement and non-solicitation, shall be assignable by the Company without the need to obtain the consent of Employee. This Agreement\nshall inure to the benefit of and be enforceable by the successors and assigns of the Company, including, without limitation, any successor or assign\nto all or substantially all of the business and/or assets of the Company, whether direct or indirect, by purchase, merger, consolidation, acquisition of\nstock or otherwise.\nd. Application of Florida Law; Jurisdiction. This Agreement, and the application or interpretation thereof, shall be governed exclusively\nby its terms and by the laws of the State of Florida. Venue for all purposes shall be deemed to lie within Hillsborough County, Florida. The parties\nagree that this Agreement is one for performance in Florida. The parties to this Agreement agree that they waive any objection, constitutional,\nstatutory or otherwise, to a Florida court’s exercise of jurisdiction over any dispute between them and specifically consent to the jurisdiction of the\nFlorida courts. By entering into this Agreement, the parties, and each of them understand that they may be called upon to answer a claim asserted in\na Florida court.\ne. Legal Fees and Costs. If a legal action is initiated by any party to this Agreement against the other party arising out of or relating to the\nalleged performance or non-performance of any right or obligation established hereunder, any and all fees, costs and expenses reasonably incurred\nby each successful party or its legal counsel in investigating, preparing for, prosecuting, defending against, or providing evidence, producing\ndocuments or taking any other action in respect of, such action shall be the obligation of and shall be paid or reimbursed by the unsuccessful party.\n_3-\nf. Waiver of Jury Trial. The parties hereby acknowledge that any dispute arising out of this Agreement will necessarily include various\ncomplicated legal and factual issues and therefore knowingly, voluntarily and intentionally waive trial by jury in any litigation in any court with\nrespect to, in connection with or arising out of this Agreement, or the validity, interpretation, or enforcement hereof.\ng. Waiver. The waiver by the Company of a breach of this Agreement shall not be construed as a waiver of any subsequent breach by\nEmployee. The refusal or failure of the Company to enforce the restrictive covenants contained herein or contained in any other similar agreement\nagainst any other employee, agent or independent contractor of the Company, for any reason, shall not constitute a defense to the enforcement of this\nAgreement by the Company against Employee, nor shall it give rise to any claim or cause of action by Employee against the Company.\nh. Acknowledgments. Employee acknowledges that he has been provided with a copy of this Agreement for review prior to signing it,\nthat the Company has encouraged Employee to have this Agreement reviewed by his attorney prior to signing it and that Employee understands the\npurposes and effects of this Agreement.\n[Signature Page Follows]\n_4-\nIN WITNESS WHEREOF, the parties hereto have executed this Confidentiality and Non-Competition Agreement as of the date first written\nabove.\nNET TALK.COM, INC.\nAnastasios Kyriakides, Chief Executive Officer\nEMPLOYEE\nAddress:\nFacsimile:\nPhone:\nEmail:\n[Signature Page to the Confidentiality and Non-Competition Agreement]\n_5.	EX-10.20 26 dex 1020.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nEXHIBIT 10.20\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (the "Agreement"), dated as of September 10, 2008, is by and between Net Talk.com,\nInc., (f/k/a Discover Screens, Inc.), a Florida corporation whose principal place of business is located at 1100 NW 163 Drive Miami, Florida 33169\n(the "Company.") and ("Employee"), an individual currently residing at the address set forth on the signature page to this Agreement.\nBACKGROUND INFORMATION\nThe Company wishes to secure the employment services of Employee and Employee is willing to be so employed. In connection with such\nemployment, Employee will receive confidential and proprietary information about the Company and its business affairs during the course of his or\nher employment with the Company. The parties agree that the Confidential Information (as that term is defined below) is a valuable asset of the\nCompany, would allow Employee to unfairly compete against the Company and, if disclosed, would cause the Company significant and irreparable\nharm. As such, as a condition precedent to the Company's employment of Employee, Employee is required to enter into and execute this Agreement.\nAccordingly, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by each of the parties, the parties\nagree as follows:\nOPERATIVE PROVISIONS\n1. Confidentiality.; Return of Company Property.. During Employee's relationship with the Company (including his relationship with the\nCompany prior to the date of this Agreement), Employee has been and/or will be exposed to and has received or will receive confidential and\nproprietary information of the Company or its Affiliates, including but not limited to lists of Customers or proposed Customers, technical\ninformation, computer software, know-how, processes, business and marketing plans, strategies, training and operational procedures, information\nconcerning the Company's products, promotions, development, financing, business policies and practices, formulae, patterns, compilations,\ndatabases, programs, devices, methods, techniques, or processes, and other forms of information in the nature of trade secrets (collectively, the\n"Confidential Information"). From the date of execution hereof and for as long as the information or data remains Confidential Information,\nEmployee\nshall\nnot\nuse,\ndisclose,\nor\npermit\nany\nperson\nto\nobtain\nany\nConfidential\nInformation\nof\nthe\nCompany.\nEmployee\nagrees\nthat\nhe\nwill\nprotect\nthe Confidential Information by using all reasonable care, and further agrees that he will not disclose, transfer, use, copy, or allow third parties access\nto any such Confidential Information, except as expressly authorized by the Company. To the extent Confidential Information of the Company does\nnot qualify as a trade secret under applicable law, it will nonetheless be protected under this Agreement. Upon the request of the Company, but in\nany event upon termination of Employee's employment with the Company, Employee shall surrender to the Company all memoranda, notes, records,\ndrawings, manuals, computer software, and other documents or materials (and all copies thereof) furnished by the Company to the Employee,\nincluding all Confidentia Information. This section is intended to apply to all materials made or compiled by Employee, as well as to all materials\nfurnished to Employee by the Company or by anyone else. The obligations of this Section 1 will be in addition to any other agreements that\nEmployee has entered into with the Company regarding the receipt of Confidential Information.\n2. Non-Solicitation; Non-Disparagement. During the term of Employee's employment with the Company and for the two (2) year period\nfollowing the termination of Employee's employment with the Company for any or no reason, Employee will not, and Employee will cause his\nAffiliates to not, directly or indirectly: (i) solicit for employment, or employ any person who, at the time of such solicitation or employment, is an\nemployee or independent contractor of the Company or its Affiliates or\n1\nwas employed or engaged by the Company or its Affiliates during the twelve month period prior to the solicitation or employment or induce\nor\nattempt to induce any person to terminate his employment or engagement with the Company or its Affiliates; (ii) do business with or solicit\nCustomers of the Company or its Affiliates, or engage in any activity intended to terminate, disrupt or interfere with the Company or its Affiliate's\nrelationships with their Customers; or (iii) engage in any conduct or make any statement disparaging or criticizing the Company or its Affiliates, or\nany products or services offered by the Company or its Affiliates.\n3. Non-Competition. During the term of Employee's employment with the Company and for the two (2) year period following the termination\nof Employee's employment with the Company for any or no reason, Employee will not, and Employee will cause his Affiliates to not, directly or\nindirectly, alone or in conjunction with any other person or entity, own, manage, operate or control or participate in the ownership, management,\noperation or control of, or become associated, as an employee, director, officer, advisor, agent, consultant, principal, partner, member or independent\ncontractor with or lender to, any person or entity engaged in or aiding others to engage in business competitive with the Company, located anywhere\nin the United States of America.\n4. Divisibility. of Covenant Period. If any covenant contained in this Agreement is held to be unreasonable, arbitrary or against public policy,\nsuch covenant shall be considered divisible both as to time, Customers, competitive services and geographical area, such that each month within the\nspecified period shall be deemed a separate period of time, each Customer a separate customer, each competitive service a separate service and each\ngeographical area a separate geographical area, resulting in an intended requirement that the longest lesser time and largest lesser customer base,\nservice offering and geographical area determined not to be unreasonable, arbitrary or against public policy shall remain effective and be specifically\nenforceable against Employee.\n5.\nEnforcement. Employee acknowledges that (i) the restrictions contained in this Agreement are reasonable in scope and are necessary\nto\nprotect the Company's legitimate interests in protecting its business, and (ii) any violation of the restrictions contained in this Agreement will cause\nsignificant and irreparable harm to the Company for which the Company has no adequate remedy at law. The parties agree that damages at law,\nincluding, but not limited to monetary damages, will or may be an insufficient remedy to the Company and that (in addition to any remedies that\nare\navailable to the Company, all of which shall be deemed to be cumulative and retained by the Company and not waived by the enforcement of any\nremedy available hereunder) the Company shall also be entitled to obtain injunctive relief, including but not limited to a temporary restraining order,\na temporary or preliminary injunction or a permanent injunction, to enforce the provisions of this Agreement, as well as an equitable accounting of\nand constructive trust for all profits or other benefits arising out of or related to any such violation, all of which shall constitute rights and remedies\nto which the Company may be entitled.\n6. Miscellaneous Provisions.\na. Definitions.\ni. Affiliate. The term "Affiliate" when used in this Agreement shall mean any other person or entity that directly or indirectly\ncontrols, or is under common control with, or is controlled by the specified person or entity, and if a person, any member of the immediate family of\nsuch individual. As used in this definition, "control" (including, with its correlative meanings, "controlled b by." and "under\n2\ncommon control with") shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether\nthrough ownership of securities or partnership or other ownership interests, by contract, or otherwise) and "immediate family." shall mean any\nparent, child, grandchild, spouse, or sibling.\nii. Customers. The term "Customers" when used in this Agreement shall mean those persons who are or were customers, clients\nor distributors of the Company, predecessors of the Company, or Affiliates of the Company, as well as any prospective customers, clients or\ndistributors of the Company or Affiliates of the Company.\niii. Business Competitive with the Company.. The term "business competitive with the Company" when used in this Agreement\nshall mean any business that offers, provides, sells or supplies commercial or residential telecommunication services, including without limitation,\nservices utilizing voice over internet protocol (VoIP) technology, session initiation protocol (SIP) technology, wireless fidelity technology, wireless\nmaximum technology, marine satellite services technology and other similar type technologies.\nb. Notices. All notices under this Agreement shall be in writing and shall be considered as properly given or made if hand delivered, sent\nby\ncertified mail, overnight delivery service, facsimile or e-mail and addressed to the location set forth in the preamble to this Agreement or to such\nother address as any party may have designated by like notice furnished to all other parties hereto. All notices shall be deemed effective when\ndeposited in the U.S. mail, received by an overnight carrier or other delivery service or, when sent by facsimile or e-mail, when confirmation of\ndelivery is obtained by the sender.\nC. Assignment. This Agreement, including, but not limited to the agreements contained in Sections 2 and 3 regarding non-competition,\nnon-disparagement and non-solicitation, shall be assignable by the Company without the need to obtain the consent of Employee. This Agreement\nshall inure to the benefit of and be enforceable by the successors and assigns of the Company, including, without limitation, any successor or assign\nto all or substantially all of the business and/or assets of the Company, whether direct or indirect, by purchase, merger, consolidation, acquisition\nof\nstock or otherwise.\nd.\nApplication of Florida Law; Jurisdiction. This Agreement, and the application or interpretation thereof, shall be governed exclusively\nby\nits terms and by the laws of the State of Florida. Venue for all purposes shall be deemed to lie within Hillsborough County, Florida. The parties\nagree that this Agreement is one for performance in Florida. The parties to this Agreement agree that they waive any objection, constitutional,\nstatutory or otherwise, to a Florida court's exercise of jurisdiction over any dispute between them and specifically consent to the jurisdiction of the\nFlorida courts. By entering into this Agreement, the parties, and each of them understand that they may be called upon to answer a claim asserted in\na Florida court.\ne. Legal Fees and Costs. If a legal action is initiated by any party to this Agreement against the other party arising out of or relating to the\nalleged performance or non-performance of any right or obligation established hereunder, any and all fees, costs and expenses reasonably incurred\nby each successful party or its legal counsel in investigating, preparing for, prosecuting, defending against, or providing evidence, producing\ndocuments or taking any other action in respect of, such action shall be the obligation of and shall be paid or reimbursed by the unsuccessful party.\n3\nf. Waiver of Jury Trial. The parties hereby acknowledge that any dispute arising out of this Agreement will necessarily include various\ncomplicated legal and factual issues and therefore knowingly, voluntarily and intentionally waive trial by jury in any litigation in any court with\nrespect to, in connection with or arising out of this Agreement, or the validity, interpretation, or enforcement hereof.\ng. Waiver. The waiver by the Company of a breach of this Agreement shall not be construed as a waiver of any subsequent breach by\nEmployee. The refusal or failure of the Company to enforce the restrictive covenants contained herein or contained in any other similar agreement\nagainst any other employee, agent or independent contractor of the Company, for any reason, shall not constitute a defense to the enforcement of this\nAgreement by the Company against Employee, nor shall it give rise to any claim or cause of action by Employee against the Company.\nh. Acknowledgments. Employee acknowledges that he has been provided with a copy of this Agreement for review prior to signing it,\nthat the Company has encouraged Employee to have this Agreement reviewed by his attorney prior to signing it and that Employee understands the\npurposes and effects of this Agreement.\n[Signature Page Follows]\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Confidentiality and Non-Competition Agreement as of the date first written\nabove.\nNET TALK.COM, INC.\nAnastasios Kyriakides, Chief Executive Officer\nEMPLOYEE\nAddress:\nFacsimile:\nPhone:\nEmail:\n[Signature Page to the Confidentiality and Non-Competition Agreement]\n- 5	EX-10.20 26 dex1020.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nEXHIBIT 10.20\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (the “Agreement”), dated as of September 10, 2008, is by and between Net Talk.com,\nInc., (f/k/a Discover Screens, Inc.), a Florida corporation whose principal place of business is located at 1100 NW 163 Drive Miami, Florida 33169\n(the “Company”) and\n(“Employee”), an individual currently residing at the address set forth on the signature page to this Agreement.\nBACKGROUND INFORMATION\nThe Company wishes to secure the employment services of Employee and Employee is willing to be so employed. In connection with such\nemployment, Employee will receive confidential and proprietary information about the Company and its business affairs during the course of his or\nher employment with the Company. The parties agree that the Confidential Information (as that term is defined below) is a valuable asset of the\nCompany, would allow Employee to unfairly compete against the Company and, if disclosed, would cause the Company significant and irreparable\nharm. As such, as a condition precedent to the Company’s employment of Employee, Employee is required to enter into and execute this Agreement.\nAccordingly, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by each of the parties, the parties\nagree as follows:\nOPERATIVE PROVISIONS\n1. Confidentiality; Return of Company Property. During Employee’s relationship with the Company (including his relationship with the\nCompany prior to the date of this Agreement), Employee has been and/or will be exposed to and has received or will receive confidential and\nproprietary information of the Company or its Affiliates, including but not limited to lists of Customers or proposed Customers, technical\ninformation, computer software, know-how, processes, business and marketing plans, strategies, training and operational procedures, information\nconcerning the Company’s products, promotions, development, financing, business policies and practices, formulae, patterns, compilations,\ndatabases, programs, devices, methods, techniques, or processes, and other forms of information in the nature of trade secrets (collectively, the\n“Confidential Information”). From the date of execution hereof and for as long as the information or data remains Confidential Information,\nEmployee shall not use, disclose, or permit any person to obtain any Confidential Information of the Company. Employee agrees that he will protect\nthe Confidential Information by using all reasonable care, and further agrees that he will not disclose, transfer, use, copy, or allow third parties access\nto any such Confidential Information, except as expressly authorized by the Company. To the extent Confidential Information of the Company does\nnot qualify as a trade secret under applicable law, it will nonetheless be protected under this Agreement. Upon the request of the Company, but in\nany event upon termination of Employee’s employment with the Company, Employee shall surrender to the Company all memoranda, notes, records,\ndrawings, manuals, computer software, and other documents or materials (and all copies thereof) furnished by the Company to the Employee,\nincluding all Confidential Information. This section is intended to apply to all materials made or compiled by Employee, as well as to all materials\nfurnished to Employee by the Company or by anyone else. The obligations of this Section 1 will be in addition to any other agreements that\nEmployee has entered into with the Company regarding the receipt of Confidential Information.\n2. Non-Solicitation; Non-Disparagement. During the term of Employee’s employment with the Company and for the two (2) year period\nfollowing the termination of Employee’s employment with the Company for any or no reason, Employee will not, and Employee will cause his\nAffiliates to not, directly or indirectly: (i) solicit for employment, or employ any person who, at the time of such solicitation or employment, is an\nemployee or independent contractor of the Company or its Affiliates or\n-1-\nwas employed or engaged by the Company or its Affiliates during the twelve month period prior to the solicitation or employment or induce or\nattempt to induce any person to terminate his employment or engagement with the Company or its Affiliates; (ii) do business with or solicit\nCustomers of the Company or its Affiliates, or engage in any activity intended to terminate, disrupt or interfere with the Company or its Affiliate’s\nrelationships with their Customers; or (iii) engage in any conduct or make any statement disparaging or criticizing the Company or its Affiliates, or\nany products or services offered by the Company or its Affiliates.\n3. Non-Competition. During the term of Employee’s employment with the Company and for the two (2) year period following the termination\nof Employee’s employment with the Company for any or no reason, Employee will not, and Employee will cause his Affiliates to not, directly or\nindirectly, alone or in conjunction with any other person or entity, own, manage, operate or control or participate in the ownership, management,\noperation or control of, or become associated, as an employee, director, officer, advisor, agent, consultant, principal, partner, member or independent\ncontractor with or lender to, any person or entity engaged in or aiding others to engage in business competitive with the Company, located anywhere\nin the United States of America.\n4. Divisibility of Covenant Period. If any covenant contained in this Agreement is held to be unreasonable, arbitrary or against public policy,\nsuch covenant shall be considered divisible both as to time, Customers, competitive services and geographical area, such that each month within the\nspecified period shall be deemed a separate period of time, each Customer a separate customer, each competitive service a separate service and each\ngeographical area a separate geographical area, resulting in an intended requirement that the longest lesser time and largest lesser customer base,\nservice offering and geographical area determined not to be unreasonable, arbitrary or against public policy shall remain effective and be specifically\nenforceable against Employee.\n5. Enforcement. Employee acknowledges that (i) the restrictions contained in this Agreement are reasonable in scope and are necessary to\nprotect the Company’s legitimate interests in protecting its business, and (ii) any violation of the restrictions contained in this Agreement will cause\nsignificant and irreparable harm to the Company for which the Company has no adequate remedy at law. The parties agree that damages at law,\nincluding, but not limited to monetary damages, will or may be an insufficient remedy to the Company and that (in addition to any remedies that are\navailable to the Company, all of which shall be deemed to be cumulative and retained by the Company and not waived by the enforcement of any\nremedy available hereunder) the Company shall also be entitled to obtain injunctive relief, including but not limited to a temporary restraining order,\na temporary or preliminary injunction or a permanent injunction, to enforce the provisions of this Agreement, as well as an equitable accounting of\nand constructive trust for all profits or other benefits arising out of or related to any such violation, all of which shall constitute rights and remedies\nto which the Company may be entitled.\n6. Miscellaneous Provisions.\na. Definitions.\ni. Affiliate. The term “Affiliate” when used in this Agreement shall mean any other person or entity that directly or indirectly\ncontrols, or is under common control with, or is controlled by the specified person or entity, and if a person, any member of the immediate family of\nsuch individual. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under\n-2-\ncommon control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether\nthrough ownership of securities or partnership or other ownership interests, by contract, or otherwise) and “immediate family” shall mean any\nparent, child, grandchild, spouse, or sibling.\nii. Customers. The term “Customers” when used in this Agreement shall mean those persons who are or were customers, clients\nor distributors of the Company, predecessors of the Company, or Affiliates of the Company, as well as any prospective customers, clients or\ndistributors of the Company or Affiliates of the Company.\niii. Business Competitive with the Company. The term “business competitive with the Company” when used in this Agreement\nshall mean any business that offers, provides, sells or supplies commercial or residential telecommunication services, including without limitation,\nservices utilizing voice over internet protocol (VoIP) technology, session initiation protocol (SIP) technology, wireless fidelity technology, wireless\nmaximum technology, marine satellite services technology and other similar type technologies.\nb. Notices. All notices under this Agreement shall be in writing and shall be considered as properly given or made if hand delivered, sent\nby certified mail, overnight delivery service, facsimile or e-mail and addressed to the location set forth in the preamble to this Agreement or to such\nother address as any party may have designated by like notice furnished to all other parties hereto. All notices shall be deemed effective when\ndeposited in the U.S. mail, received by an overnight carrier or other delivery service or, when sent by facsimile or e-mail, when confirmation of\ndelivery is obtained by the sender.\nc. Assignment. This Agreement, including, but not limited to the agreements contained in Sections 2 and 3 regarding non-competition,\nnon-disparagement and non-solicitation, shall be assignable by the Company without the need to obtain the consent of Employee. This Agreement\nshall inure to the benefit of and be enforceable by the successors and assigns of the Company, including, without limitation, any successor or assign\nto all or substantially all of the business and/or assets of the Company, whether direct or indirect, by purchase, merger, consolidation, acquisition of\nstock or otherwise.\nd. Application of Florida Law; Jurisdiction. This Agreement, and the application or interpretation thereof, shall be governed exclusively\nby its terms and by the laws of the State of Florida. Venue for all purposes shall be deemed to lie within Hillsborough County, Florida. The parties\nagree that this Agreement is one for performance in Florida. The parties to this Agreement agree that they waive any objection, constitutional,\nstatutory or otherwise, to a Florida court’s exercise of jurisdiction over any dispute between them and specifically consent to the jurisdiction of the\nFlorida courts. By entering into this Agreement, the parties, and each of them understand that they may be called upon to answer a claim asserted in\na Florida court.\ne. Legal Fees and Costs. If a legal action is initiated by any party to this Agreement against the other party arising out of or relating to the\nalleged performance or non-performance of any right or obligation established hereunder, any and all fees, costs and expenses reasonably incurred\nby each successful party or its legal counsel in investigating, preparing for, prosecuting, defending against, or providing evidence, producing\ndocuments or taking any other action in respect of, such action shall be the obligation of and shall be paid or reimbursed by the unsuccessful party.\n-3-\nf. Waiver of Jury Trial. The parties hereby acknowledge that any dispute arising out of this Agreement will necessarily include various\ncomplicated legal and factual issues and therefore knowingly, voluntarily and intentionally waive trial by jury in any litigation in any court with\nrespect to, in connection with or arising out of this Agreement, or the validity, interpretation, or enforcement hereof.\ng. Waiver. The waiver by the Company of a breach of this Agreement shall not be construed as a waiver of any subsequent breach by\nEmployee. The refusal or failure of the Company to enforce the restrictive covenants contained herein or contained in any other similar agreement\nagainst any other employee, agent or independent contractor of the Company, for any reason, shall not constitute a defense to the enforcement of this\nAgreement by the Company against Employee, nor shall it give rise to any claim or cause of action by Employee against the Company.\nh. Acknowledgments. Employee acknowledges that he has been provided with a copy of this Agreement for review prior to signing it,\nthat the Company has encouraged Employee to have this Agreement reviewed by his attorney prior to signing it and that Employee understands the\npurposes and effects of this Agreement.\n[Signature Page Follows]\n-4-\nIN WITNESS WHEREOF, the parties hereto have executed this Confidentiality and Non-Competition Agreement as of the date first written\nabove.\nNET TALK.COM, INC.\nAnastasios Kyriakides, Chief Executive Officer\nEMPLOYEE\nAddress:\nFacsimile:\nPhone:\nEmail:\n[Signature Page to the Confidentiality and Non-Competition Agreement]\n-5-
170c3523298f4c60ae0935d7f800330d.pdf	effective_date jurisdiction party term	EX-10.14 2 coup-ex1014_513.htm EX-10.14\nExhibit 10.14\nCoupa Software Incorporated\nDirector Confidentiality Agreement\nThis Director Confidentiality Agreement (“Agreement”) is made by and between Coupa Software\nIncorporated, a Delaware corporation (the “Company”), and the undersigned member of the Board of Directors (the\n“Board”) of the Company (the “Director”), as of the date indicated below.\nRecitals\nWHEREAS, the Company and the Board believe in the importance of protecting and holding confidential all\nnon-public information that the members of the Board obtain due to their directorship position;\nWHEREAS, members of the Board have fiduciary duties under the General Corporation Law of the State of\nDelaware;\nWHEREAS, the Corporate Governance Guidelines adopted by the Board state that, consistent with their\nfiduciary duties, directors are expected to maintain the confidentiality of the information they receive as a director and the\ndeliberations of the Board and its committees; and\nWHEREAS, the Company and the Board desire that each member of the Board enter into this Agreement\nregarding confidentiality in connection with their service on the Board.\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and\nDirector do hereby covenant and agree as follows:\nSection 1.\nAgreement of Confidentiality. Pursuant to the fiduciary duties of loyalty and care, the\nDirector agrees to take reasonable measures to protect and hold confidential all non-public information obtained due to\nhis or her directorship position absent the express permission of the Company to disclose such\ninformation. Accordingly:\n(a)\nthe Director agrees not to use Confidential Information for his or her own personal benefit\nor to benefit persons or entities outside the Company; and\n(b)\nthe Director agrees not to disclose Confidential Information outside the Company, either\nduring or after his or her service as a Director of the Company, except with authorization of the Company or as\nmay be otherwise required by law. For purposes of this Agreement, to the extent applicable, the Company\nauthorizes Director to disclose Confidential Information to the general partners, managing members or other\ncontrol persons and/or any affiliated management companies of his or her venture capital fund on a need to\nknow basis (collectively, the “VC Fund”); provided, however, that the VC Fund shall strictly observe the terms\nof this Agreement.\nSection 2.\n“Confidential Information” includes all non-public information entrusted to or obtained by\nthe Director by reason of his or her position as a member of the Board. It includes, but is not limited to:\na)\nnon-public information that might be of use to competitors or harmful to the Company or its\ncustomers or suppliers if disclosed;\nb)\nnon-public information about the Company’s financial condition, prospects or plans, its\nsales and marketing programs and research and development information, as well as information relating to\nmergers and acquisitions, stock splits and other corporate transactions;\nc)\nnon-public information concerning possible transactions with other companies or\ninformation about the Company’s customers, suppliers or partners, which the Company is under an obligation\nto maintain as confidential; and\nd)\nnon-public information about discussions and deliberations relating to business issues and\ndecisions, between and among employees, officers and the Board.\nSection 3.\nPermitted Communications. Nothing in this Agreement is intended to limit the Director ’s\nability to meet or otherwise communicate with various constituencies that are involved with the Company under the\ncircumstances specified in the Corporate Governance Guidelines or to act as an authorized spokesperson of the Company\npursuant to the Company’s Investor Relations and Communications Policy.\nSection 4.\nModification and Waiver. No supplement, modification or amendment of this Agreement\nshall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement\nshall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a\ncontinuing waiver.\nSection 5.\nApplicable Law. This Agreement shall be governed by, and construed and enforced in\naccordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.\nSection 6.\nCounterparts. This Agreement may be executed in one or more counterparts, each of which\nshall for all purposes be deemed to be an original but all of which together shall constitute one and the same\nAgreement.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year written\nbelow.\nCOUPA SOFTWARE INCORPORATED\nDIRECTOR\nBy:\nName:\nName:\nOffice:\nDATE:	EX-10.14 2 coup-ex1014_513.htm EX-10.14\nExhibit 10.14\nCoupa Software Incorporated\nDirector Confidentiality Agreement\nThis Director Confidentiality Agreement (“Agreement”) is made by and between Coupa Software\nIncorporated, a Delaware corporation (the “Company”), and the undersigned member of the Board of Directors (the\n“Board”) of the Company (the “Director”), as of the date indicated below.\nRecitals\nWHEREAS, the Company and the Board believe in the importance of protecting and holding confidential all\nnon-public information that the members of the Board obtain due to their directorship position;\nWHEREAS, members of the Board have fiduciary duties under the General Corporation Law of the State of\nDelaware;\nWHEREAS, the Corporate Governance Guidelines adopted by the Board state that, consistent with their\nfiduciary duties, directors are expected to maintain the confidentiality of the information they receive as a director and the\ndeliberations of the Board and its committees; and\nWHEREAS, the Company and the Board desire that each member of the Board enter into this Agreement\nregarding confidentiality in connection with their service on the Board.\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and\nDirector do hereby covenant and agree as follows:\nSection 1. Agreement of Confidentiality. Pursuant to the fiduciary duties of loyalty and care, the\nDirector agrees to take reasonable measures to protect and hold confidential all non-public information obtained due to\nhis or her directorship position absent the express permission of the Company to disclose such\ninformation. Accordingly:\n(a) the Director agrees not to use Confidential Information for his or her own personal benefit\nor to benefit persons or entities outside the Company; and\n(b) the Director agrees not to disclose Confidential Information outside the Company, either\nduring or after his or her service as a Director of the Company, except with authorization of the Company or as\nmay be otherwise required by law. For purposes of this Agreement, to the extent applicable, the Company\nauthorizes Director to disclose Confidential Information to the general partners, managing members or other\ncontrol persons and/or any affiliated management companies of his or her venture capital fund on a need to\nknow basis (collectively, the “VC Fund”); provided, however, that the VC Fund shall strictly observe the terms\nof this Agreement.\nSection 2. “Confidential Information” includes all non-public information entrusted to or obtained by\nthe Director by reason of his or her position as a member of the Board. It includes, but is not limited to:\na) non-public information that might be of use to competitors or harmful to the Company or its\ncustomers or suppliers if disclosed;\nb) non-public information about the Company’s financial condition, prospects or plans, its\nsales and marketing programs and research and development information, as well as information relating to\nmergers and acquisitions, stock splits and other corporate transactions;\nC) non-public information concerning possible transactions with other companies or\ninformation about the Company’s customers, suppliers or partners, which the Company is under an obligation\nto maintain as confidential; and\nd) non-public information about discussions and deliberations relating to business issues and\ndecisions, between and among employees, officers and the Board.\nSection 3. Permitted Communications. Nothing in this Agreement is intended to limit the Director’s\nability to meet or otherwise communicate with various constituencies that are involved with the Company under the\ncircumstances specified in the Corporate Governance Guidelines or to act as an authorized spokesperson of the Company\npursuant to the Company’s Investor Relations and Communications Policy.\nSection 4. Modification and Waiver. No supplement, modification or amendment of this Agreement\nshall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement\nshall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a\ncontinuing waiver.\nSection 5. Applicable Law. This Agreement shall be governed by, and construed and enforced in\naccordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.\nSection 6. Counterparts. This Agreement may be executed in one or more counterparts, each of which\nshall for all purposes be deemed to be an original but all of which together shall constitute one and the same\nAgreement.\nIN WITNESS WHEREQF, the parties have caused this Agreement to be signed as of the day and year written\nbelow.\nCOUPA SOFTWARE INCORPORATED DIRECTOR\nBy:\nName: Name:\nOffice:\nDATE:	EX-10.14 2 coup-ex1014_513.htm EX-10.14\nExhibit 10.14\nCoupa Software Incorporated\nDirector Confidentiality Agreement\nThis Director Confidentiality Agreement ("Agreement") is made by and between Coupa Software\nIncorporated, a Delaware corporation (the "Company"), and the undersigned member of the Board of Directors (the\n"Board") of the Company (the "Director"), as of the date indicated below.\nRecitals\nWHEREAS, the Company and the Board believe in the importance of protecting and holding confidential all\nnon-public information that the members of the Board obtain due to their directorship position;\nWHEREAS, members of the Board have fiduciary duties under the General Corporation Law of the State of\nDelaware;\nWHEREAS, the Corporate Governance Guidelines adopted by the Board state that, consistent with their\nfiduciary duties, directors are expected to maintain the confidentiality of the information they receive as a director and the\ndeliberations of the Board and its committees; and\nWHEREAS, the Company and the Board desire that each member of the Board enter into this Agreement\nregarding confidentiality in connection with their service on the Board.\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and\nDirector do hereby covenant and agree as follows:\nSection 1.\nAgreement of Confidentiality.. Pursuant to the fiduciary duties of loyalty and care, the\nDirector agrees to take reasonable measures to protect and hold confidential all non-public information obtained due to\nhis or her directorship position absent the express permission of the Company to disclose such\ninformation. Accordingly:\n(a)\nthe Director agrees not to use Confidential Information for his or her own personal benefit\nor to benefit persons or entities outside the Company; and\n(b)\nthe Director agrees not to disclose Confidential Information outside the Company, either\nduring or after his or her service as a Director of the Company, except with authorization of the Company\nor\nas\nmay be otherwise required by law. For purposes of this Agreement, to the extent applicable, the Company\nauthorizes Director to disclose Confidential Information to the general partners, managing members or other\ncontrol persons and/or any affiliated management companies of his or her venture capital fund on a need to\nknow basis (collectively, the "VC Fund"); provided, however, that the VC Fund shall strictly observe the terms\nof this Agreement.\nSection 2.\n"Confidential Information" includes all non-public information entrusted to or obtained by\nthe Director by reason of his or her position as a member of the Board. It includes, but is not limited to:\na)\nnon-public information that might be of use to competitors or harmful to the Company or its\ncustomers or suppliers if disclosed;\nb) non-public information about the Company's financial condition, prospects or plans, its\nsales and marketing programs and research and development information, as well as information relating to\nmergers and acquisitions, stock splits and other corporate transactions;\nc) non-public information concerning possible transactions with other companies or\ninformation about the Company's customers, suppliers or partners, which the Company is under an obligation\nto maintain as confidential; and\nd)\nnon-public information about discussions and deliberations relating to business issues and\ndecisions, between and among employees, officers and the Board.\nSection 3.\nPermitted Communications. Nothing in this Agreement is intended to limit the Director's\nability to meet or otherwise communicate with various constituencies that are involved with the Company under the\ncircumstances specified in the Corporate Governance Guidelines or to act as an authorized spokesperson of the Company\npursuant to the Company's Investor Relations and Communications Policy.\nSection 4. Modification and Waiver. No supplement, modification or amendment of this Agreement\nshall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement\nshall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a\ncontinuing waiver.\nSection 5.\nApplicable Law. This Agreement shall be governed by, and construed and enforced\nin\naccordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.\nSection 6.\nCounterparts. This Agreement may be executed in one or more counterparts, each of which\nshall for all purposes be deemed to be an original but all of which together shall constitute one and the same\nAgreement.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year written\nbelow.\nCOUPA SOFTWARE INCORPORATED\nDIRECTOR\nBy:\nName:\nName:\nOffice:\nDATE:	EX-10.14 2 coup-ex1014_513.htm EX-10.14\nExhibit 10.14\nCoupa Software Incorporated\nDirector Confidentiality Agreement\nThis Director Confidentiality Agreement (“Agreement”) is made by and between Coupa Software\nIncorporated, a Delaware corporation (the “Company”), and the undersigned member of the Board of Directors (the\n“Board”) of the Company (the “Director”), as of the date indicated below.\nRecitals\nWHEREAS, the Company and the Board believe in the importance of protecting and holding confidential all\nnon-public information that the members of the Board obtain due to their directorship position;\nWHEREAS, members of the Board have fiduciary duties under the General Corporation Law of the State of\nDelaware;\nWHEREAS, the Corporate Governance Guidelines adopted by the Board state that, consistent with their\nfiduciary duties, directors are expected to maintain the confidentiality of the information they receive as a director and the\ndeliberations of the Board and its committees; and\nWHEREAS, the Company and the Board desire that each member of the Board enter into this Agreement\nregarding confidentiality in connection with their service on the Board.\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and\nDirector do hereby covenant and agree as follows:\nSection 1.\nAgreement of Confidentiality. Pursuant to the fiduciary duties of loyalty and care, the\nDirector agrees to take reasonable measures to protect and hold confidential all non-public information obtained due to\nhis or her directorship position absent the express permission of the Company to disclose such\ninformation. Accordingly:\n(a)\nthe Director agrees not to use Confidential Information for his or her own personal benefit\nor to benefit persons or entities outside the Company; and\n(b)\nthe Director agrees not to disclose Confidential Information outside the Company, either\nduring or after his or her service as a Director of the Company, except with authorization of the Company or as\nmay be otherwise required by law. For purposes of this Agreement, to the extent applicable, the Company\nauthorizes Director to disclose Confidential Information to the general partners, managing members or other\ncontrol persons and/or any affiliated management companies of his or her venture capital fund on a need to\nknow basis (collectively, the “VC Fund”); provided, however, that the VC Fund shall strictly observe the terms\nof this Agreement.\nSection 2.\n“Confidential Information” includes all non-public information entrusted to or obtained by\nthe Director by reason of his or her position as a member of the Board. It includes, but is not limited to:\na)\nnon-public information that might be of use to competitors or harmful to the Company or its\ncustomers or suppliers if disclosed;\nb)\nnon-public information about the Company’s financial condition, prospects or plans, its\nsales and marketing programs and research and development information, as well as information relating to\nmergers and acquisitions, stock splits and other corporate transactions;\nc)\nnon-public information concerning possible transactions with other companies or\ninformation about the Company’s customers, suppliers or partners, which the Company is under an obligation\nto maintain as confidential; and\nd)\nnon-public information about discussions and deliberations relating to business issues and\ndecisions, between and among employees, officers and the Board.\nSection 3.\nPermitted Communications. Nothing in this Agreement is intended to limit the Director ’s\nability to meet or otherwise communicate with various constituencies that are involved with the Company under the\ncircumstances specified in the Corporate Governance Guidelines or to act as an authorized spokesperson of the Company\npursuant to the Company’s Investor Relations and Communications Policy.\nSection 4.\nModification and Waiver. No supplement, modification or amendment of this Agreement\nshall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement\nshall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a\ncontinuing waiver.\nSection 5.\nApplicable Law. This Agreement shall be governed by, and construed and enforced in\naccordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.\nSection 6.\nCounterparts. This Agreement may be executed in one or more counterparts, each of which\nshall for all purposes be deemed to be an original but all of which together shall constitute one and the same\nAgreement.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year written\nbelow.\nCOUPA SOFTWARE INCORPORATED\nDIRECTOR\nBy:\nName:\nName:\nOffice:\nDATE:
1833b67588ab0a7bab44938ef295fdb6.pdf	effective_date jurisdiction party term	EX-10.15 2 dex1015.htm NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nExhibit 10.15\nRUBICON TECHNOLOGY, INC.\nNON-COMPETITION AGREEMENT\nI,\nHewes, Hap\n,asof\nApril 6th\n, 2005, in consideration and as a condition of my continued employment by\nRubicon Technology, Inc. (the “Company”), my concurrent receipt herewith of an option grant for _230,000_ shares of the Company’s common\nstock and a new annual base salary totaling $_160,000.00_ and the covenants herein contained, hereby enter into this Non-Competition\nAgreement (the “Agreement”) with the Company as follows (and agree that all existing non-competition agreements or similar arrangements\nbetween the Company and myself, except for non-competition agreements entered into between the Company and myself concurrently herewith or\nafter the date hereof and making specific reference to this Agreement, are hereby superseded by this Agreement):\n1. During the course of my employment, I acknowledge and agree that I will have access to the Company’s most highly confidential information and\ntrade secrets concerning the Company’s manufacture, fabrication, growth, production, and polishing of single crystal materials, including, but not\nlimited to, details on the construction of the Company’s furnaces, the specialized changes made to production equipment and the details of the\nCompany’s specialized crystal fabrication processes.\n2. The term of this Agreement shall be for the period commencing on the date of my initial employment with the Company and shall end on the date\nthat is no later than thirty-six (36) months from the date of termination of my employment for any reason; provided, that this Agreement shall remain\nin effect after the termination of my employment only for so long as the Company pays me an amount equal to fifty percent (50%) of my base salary\n(as in effect on the date of my termination), payable on a monthly basis and in accordance with the Company’s standard payroll practices.\n3. During the term hereof, I will not, without the Company’s prior written consent, directly or indirectly, alone or as a partner, joint venturer, officer,\ndirector, employee, consultant, agent, independent contractor or equity holder of any company or business, perform services in any capacity similar\nto that of my employment with the Company or in any managerial or other type of position in which I might, either purposely or inadvertently,\ndisclose the Company’s trade secret information, for any Competitor. As used herein, “Competitor” means any business entity in the business of\ndeveloping, marketing, distributing, maintaining or selling products or services competitive with the products or services being developed, marketed,\ndistributed, planned, sold or otherwise provided by the Company at the date of the termination of my employment, including, but not limited to,\nNamiki, Shinkosha, Monocrystal, Furakawa, Saint-Gobain Crystals Division, Kyocera Fine Ceramics and Honeywell. I acknowledge that the\nownership by me of not more than one percent (1%) of the shares of stock of any corporation having a class of equity securities actively traded on a\nnational securities exchange or on the NASDAQ Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this paragraph.\n4. During the term hereof, I will not, without the Company’s prior written consent, directly or indirectly, employ, solicit to employ, or engage, or\nknowingly permit any other company or business organization which employs me or is directly or indirectly controlled by me to employ, solicit to\nemploy, or engage, any person who is employed by the Company at any time during the\nRUBICON TECHNOLOGY, INC.\n-1-\nNON-COMPETITION AGREEMENT\nterm hereof, or in any manner seek to induce any such person to leave his or her employment with the Company.\n5. During the term hereof, I will not, without the Company’s prior written consent, solicit or do business with, directly or indirectly, any present or\npast customer of the Company (determined at the termination of my employment with the Company), or any prospective customer of the Company\nwith whom I have had contact prior to the termination of my employment with the Company, in connection with any business activity which would\nviolate any other provision of this Agreement.\n6. I hereby represent that I am not a party to, or bound by the terms of, any agreement with any previous employer or other party to refrain from\nusing or disclosing any trade secret or confidential or proprietary information in the course of my employment with the Company or to refrain from\ncompeting, directly or indirectly, with the business of such previous employer or any other party. I further represent that my performance of all the\nterms of this Agreement, and as an employee of the Company, does not and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge or data acquired by me in confidence or in trust prior to my employment with the Company, and I will not disclose to the\nCompany or induce the Company to use any confidential or proprietary information or material belonging to any previous employer, or others.\n7. I acknowledge and agree to the reasonableness, applicability, scope and nature of the terms, conditions and covenants contained in this\nAgreement, and further agree that the time periods and scope specified in this Agreement are appropriate, minimum and reasonable times and scope\nnecessary to protect the Company’s trade secrets and the Company in the conduct of its business. I represent and warrant to the Company that, in the\nevent of enforcement of the provisions of this Agreement, my experience and capabilities are such that I can obtain work or other employment that\nwould not violate any of the provisions of this Agreement and that the enforcement of such provisions by the Company by way of injunction will not\nprevent me from earning a livelihood.\n8. I agree that the breach of this Agreement by me will cause irreparable damage to the Company and that in the event of such breach the Company\nshall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation\nof my obligations hereunder.\n9. I understand that this Agreement does not create an obligation on the Company or any other person or entity to continue my employment.\n10. Any amendment to or modification of this Agreement, and any waiver of any provision hereof, shall be in writing, executed by both parties. Any\nwaiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach\nhereof.\n11. I hereby agree that each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in\nno way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this\nRUBICON TECHNOLOGY, INC.\n-2-\nNON-COMPETITION AGREEMENT\nAgreement shall for any reason be held to be excessively broad as to scope, activity, or subject so as to be unenforceable at law, such provision or\nprovisions shall be construed by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the maximum extent\ncompatible with the applicable law as it shall then appear.\n12. This Agreement shall be governed in all respects, whether as to validity, construction, capacity, performance, or otherwise, by the laws of the\nState of Illinois, without regard to the conflict of laws provisions thereof, and no action involving this Agreement may be brought except in the\nCircuit Court of Cook County, Illinois or the United States District Court for the Northern District of Illinois, Eastern Division.\n13. The term “Company” shall include Rubicon Technology, Inc., and any of its predecessors, subsidiaries, subdivisions, affiliates or successors. The\nCompany shall have the right to assign this Agreement to its successors and assigns, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n14. Due to the personal nature of this Agreement, I agree that I may not assign or delegate this Agreement or any of my obligations hereunder and\nthat any such attempted assignment or delegation shall be deemed void and of no force or effect.\n15. The provisions of this Agreement will not be deemed to have been violated in the event I participate in, or become an employee of, any affiliate\nof the Company. The provisions of this Agreement will not be deemed to have been violated as a result of any actions taken by me within the\nauthorized scope of my involvement with any such affiliate.\n[Signature Page Follows]\nRUBICON TECHNOLOGY, INC.\n-3-\nNON-COMPETITION AGREEMENT\nIN WITNESS WHEREOF, the parties have executed this Non-Competition Agreement as of the date first above written.\nEMPLOYEE\nRUBICON TECHNOLOGY, INC.\n/s/ Hap Hewes\n/s/ William F. Weissman\nHap Hewes\nWilliam F. Weissman, Chief Financial Officer\nPrinted Name\nName, Title\n[Address]\nRUBICON TECHNOLOGY, INC.\n-4-\nNON-COMPETITION AGREEMENT	EX-10.15 2 dex1015.htm NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nExhibit 10.15\nRUBICON TECHNOLOGY, INC.\nNON-COMPETITION AGREEMENT\nI Hewes, Hap , as of April 6th , 2005, in consideration and as a condition of my continued employment by\nRubicon Technology, Inc. (the “Company”), my concurrent receipt herewith of an option grant for _230,000_ shares of the Company’s common\nstock and a new annual base salary totaling $_160,000.00_ and the covenants herein contained, hereby enter into this Non-Competition\nAgreement (the “Agreement”) with the Company as follows (and agree that all existing non-competition agreements or similar arrangements\nbetween the Company and myself, except for non-competition agreements entered into between the Company and myself concurrently herewith or\nafter the date hereof and making specific reference to this Agreement, are hereby superseded by this Agreement):\n \n1. During the course of my employment, I acknowledge and agree that I will have access to the Company’s most highly confidential information and\ntrade secrets concerning the Company’s manufacture, fabrication, growth, production, and polishing of single crystal materials, including, but not\nlimited to, details on the construction of the Company’s furnaces, the specialized changes made to production equipment and the details of the\nCompany’s specialized crystal fabrication processes.\n2. The term of this Agreement shall be for the period commencing on the date of my initial employment with the Company and shall end on the date\nthat is no later than thirty-six (36) months from the date of termination of my employment for any reason; provided, that this Agreement shall remain\nin effect after the termination of my employment only for so long as the Company pays me an amount equal to fifty percent (50%) of my base salary\n(as in effect on the date of my termination), payable on a monthly basis and in accordance with the Company’s standard payroll practices.\n3. During the term hereof, I will not, without the Company’s prior written consent, directly or indirectly, alone or as a partner, joint venturer, officer,\ndirector, employee, consultant, agent, independent contractor or equity holder of any company or business, perform services in any capacity similar\nto that of my employment with the Company or in any managerial or other type of position in which I might, either purposely or inadvertently,\ndisclose the Company’s trade secret information, for any Competitor. As used herein, “Competitor” means any business entity in the business of\ndeveloping, marketing, distributing, maintaining or selling products or services competitive with the products or services being developed, marketed,\ndistributed, planned, sold or otherwise provided by the Company at the date of the termination of my employment, including, but not limited to,\nNamiki, Shinkosha, Monocrystal, Furakawa, Saint-Gobain Crystals Division, Kyocera Fine Ceramics and Honeywell. I acknowledge that the\nownership by me of not more than one percent (1%) of the shares of stock of any corporation having a class of equity securities actively traded on a\nnational securities exchange or on the NASDAQ Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this paragraph.\n4. During the term hereof, I will not, without the Company’s prior written consent, directly or indirectly, employ, solicit to employ, or engage, or\nknowingly permit any other company or business organization which employs me or is directly or indirectly controlled by me to employ, solicit to\nemploy, or engage, any person who is employed by the Company at any time during the\nRUBICON TECHNOLOGY, INC. -1- NON-COMPETITION AGREEMENT\nterm hereof, or in any manner seek to induce any such person to leave his or her employment with the Company.\n5. During the term hereof, I will not, without the Company’s prior written consent, solicit or do business with, directly or indirectly, any present or\npast customer of the Company (determined at the termination of my employment with the Company), or any prospective customer of the Company\nwith whom I have had contact prior to the termination of my employment with the Company, in connection with any business activity which would\nviolate any other provision of this Agreement.\n6. I hereby represent that I am not a party to, or bound by the terms of, any agreement with any previous employer or other party to refrain from\nusing or disclosing any trade secret or confidential or proprietary information in the course of my employment with the Company or to refrain from\ncompeting, directly or indirectly, with the business of such previous employer or any other party. I further represent that my performance of all the\nterms of this Agreement, and as an employee of the Company, does not and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge or data acquired by me in confidence or in trust prior to my employment with the Company, and I will not disclose to the\nCompany or induce the Company to use any confidential or proprietary information or material belonging to any previous employer, or others.\n7.1 acknowledge and agree to the reasonableness, applicability, scope and nature of the terms, conditions and covenants contained in this\nAgreement, and further agree that the time periods and scope specified in this Agreement are appropriate, minimum and reasonable times and scope\nnecessary to protect the Company’s trade secrets and the Company in the conduct of its business. I represent and warrant to the Company that, in the\nevent of enforcement of the provisions of this Agreement, my experience and capabilities are such that I can obtain work or other employment that\nwould not violate any of the provisions of this Agreement and that the enforcement of such provisions by the Company by way of injunction will not\nprevent me from earning a livelihood.\n8. I agree that the breach of this Agreement by me will cause irreparable damage to the Company and that in the event of such breach the Company\nshall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation\nof my obligations hereunder.\n9. I understand that this Agreement does not create an obligation on the Company or any other person or entity to continue my employment.\n10. Any amendment to or modification of this Agreement, and any waiver of any provision hereof, shall be in writing, executed by both parties. Any\nwaiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach\nhereof.\n11. T hereby agree that each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in\nno way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this\nRUBICON TECHNOLOGY, INC. -2- NON-COMPETITION AGREEMENT\nAgreement shall for any reason be held to be excessively broad as to scope, activity, or subject so as to be unenforceable at law, such provision or\nprovisions shall be construed by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the maximum extent\ncompatible with the applicable law as it shall then appear.\n12. This Agreement shall be governed in all respects, whether as to validity, construction, capacity, performance, or otherwise, by the laws of the\nState of Illinois, without regard to the conflict of laws provisions thereof, and no action involving this Agreement may be brought except in the\nCircuit Court of Cook County, Illinois or the United States District Court for the Northern District of Illinois, Eastern Division.\n13. The term “Company” shall include Rubicon Technology, Inc., and any of its predecessors, subsidiaries, subdivisions, affiliates or successors. The\nCompany shall have the right to assign this Agreement to its successors and assigns, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n14. Due to the personal nature of this Agreement, I agree that I may not assign or delegate this Agreement or any of my obligations hereunder and\nthat any such attempted assignment or delegation shall be deemed void and of no force or effect.\n15. The provisions of this Agreement will not be deemed to have been violated in the event I participate in, or become an employee of, any affiliate\nof the Company. The provisions of this Agreement will not be deemed to have been violated as a result of any actions taken by me within the\nauthorized scope of my involvement with any such affiliate.\n[Signature Page Follows]\nRUBICON TECHNOLOGY, INC. -3- NON-COMPETITION AGREEMENT\nIN WITNESS WHEREOF, the parties have executed this Non-Competition Agreement as of the date first above written. EMPLOYEE\n/s/ Hap Hewes\nHap Hewes\nPrinted Name\n[Address]\nRUBICON TECHNOLOGY, INC. RUBICON TECHNOLOGY, INC.\n/s/ William F. Weissman\nWilliam F. Weissman, Chief Financial Officer\nName, Title\n-4- NON-COMPETITION AGREEMENT	EX-10.15 2 x1015.htm NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nExhibit 10.15\nRUBICON TECHNOLOGY, INC.\nNON-COMPETITION AGREEMENT\nI,\nHewes, Hap\nas of\nApril 6th\n2005, in consideration and as a condition of my continued employment by\nRubicon Technology, Inc. (the "Company."), my concurrent receipt herewith of an option grant for _230,000_ s shares of the Company's common\nstock and a new annual base salary totaling $_160,000.00_ and the covenants herein contained, hereby enter into this Non-Competition\nAgreement (the "Agreement") with the Company as follows (and agree that all existing non-competition agreements or similar arrangements\nbetween the Company and myself, except for non-competition agreements entered into between the Company and myself concurrently herewith or\nafter the date hereof and making specific reference to this Agreement, are hereby superseded by this Agreement):\n1. During the course of my employment, I acknowledge and agree that I will have access to the Company's most highly confidential information and\ntrade secrets concerning the Company's manufacture, fabrication, growth, production, and polishing of single crystal materials, including, but not\nlimited to, details on the construction of the Company's furnaces, the specialized changes made to production equipment and the details of the\nCompany's specialized crystal fabrication processes.\n2. The term of this Agreement shall be for the period commencing on the date of my initial employment with the Company and shall end on the date\nthat is no later than thirty-six (36) months from the date of termination of my employment for any reason; provided, that this Agreement shall remain\nin\neffect after the termination of my employment only for so long as the Company pays me an amount equal to fifty percent (50%) of my base salary\n(as in effect on the date of my termination), payable on a monthly basis and in accordance with the Company's standard payroll practices.\n3. During the term hereof, I will not, without the Company's prior written consent, directly or indirectly, alone or as a partner, joint venturer, officer,\ndirector, employee, consultant, agent, independent contractor or equity holder of any company or business, perform services in any capacity similar\nto that of my employment with the Company or in any managerial or other type of position in which I might, either purposely or inadvertently,\ndisclose the Company's trade secret information, for any Competitor. As used herein, "Competitor" means any business entity in the business\nof\ndeveloping, marketing, distributing, maintaining or selling products or services competitive with the products or services being developed, marketed,\ndistributed, planned, sold or otherwise provided by the Company at the date of the termination of my employment, including, but not limited to,\nNamiki, Shinkosha, Monocrystal, Furakawa, Saint-Gobain Crystals Division, Kyocera Fine Ceramics and Honeywell. I acknowledge that the\nownership by me of not more than one percent (1%) of the shares of stock of any corporation having a class of equity securities actively traded on\na\nnational securities exchange or on the NASDAQ Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this paragraph.\n4. During the term hereof, I will not, without the Company's prior written consent, directly or indirectly, employ, solicit to employ, or engage, or\nknowingly permit any other company or business organization which employs me or is directly or indirectly controlled by me to employ, solicit to\nemploy, or engage, any person who is employed by the Company at any time during the\nRUBICON TECHNOLOGY, INC.\n-1-\nNON-COMPETITION AGREEMENT\nterm hereof, or in any manner seek to induce any such person to leave his or her employment with the Company.\n5.\nDuring the term hereof, I will not, without the Company's prior written consent, solicit or do business with, directly or indirectly, any present or\npast customer of the Company (determined at the termination of my employment with the Company), or any prospective customer of the Company\nwith whom I have had contact prior to the termination of my employment with the Company, in connection with any business activity which would\nviolate any other provision of this Agreement.\n6. I hereby represent that I am not a party to, or bound by the terms of, any agreement with any previous employer or other party to refrain from\nusing or disclosing any trade secret or confidential or proprietary information in the course of my employment with the Company or to refrain from\ncompeting, directly or indirectly, with the business of such previous employer or any other party. I further represent that my performance of all the\nterms of this Agreement, and as an employee of the Company, does not and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge or data acquired by me in confidence or in trust prior to my employment with the Company, and I will not disclose\nto\nthe\nCompany or induce the Company to use any confidential or proprietary information or material belonging to any previous employer, or others.\n7.\nI acknowledge and agree to the reasonableness, applicability, scope and nature of the terms, conditions and covenants contained in this\nAgreement, and further agree that the time periods and scope specified in this Agreement are appropriate, minimum and reasonable times and scope\nnecessary to protect the Company's trade secrets and the Company in the conduct of its business. I represent and warrant to the Company that, in the\nevent\nof enforcement of the provisions of this Agreement, my experience and capabilities are such that I can obtain work or other employment that\nwould not violate any of the provisions of this Agreement and that the enforcement of such provisions by the Company by way of injunction will not\nprevent me from earning a livelihood.\n8. I agree that the breach of this Agreement by me will cause irreparable damage to the Company and that in the event of such breach the Company\nshall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation\nof my obligations hereunder.\n9. I understand that this Agreement does not create an obligation on the Company or any other person or entity to continue my employment.\n10. Any amendment to or modification of this Agreement, and any waiver of any provision hereof, shall be in writing, executed by both parties. Any\nwaiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach\nhereof.\n11. I hereby agree that each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in\nno way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this\nRUBICON TECHNOLOGY, INC.\n-2-\nNON-COMPETITION AGREEMENT\nAgreement shall for any reason be held to be excessively broad as to scope, activity, or subject so as to be unenforceable at law, such provision\nor\nprovisions shall be construed by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the maximum extent\ncompatible with the applicable law as it shall then appear.\n12. This Agreement shall be governed in all respects, whether as to validity, construction, capacity, performance, or otherwise, by the laws of the\nState of Illinois, without regard to the conflict of laws provisions thereof, and no action involving this Agreement may be brought except in the\nCircuit Court of Cook County, Illinois or the United States District Court for the Northern District of Illinois, Eastern Division.\n13.\nThe term "Company." shall include Rubicon Technology, Inc., and any of its predecessors, subsidiaries, subdivisions, affiliates or successors. The\nCompany shall have the right to assign this Agreement to its successors and assigns, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n14. Due to the personal nature of this Agreement, I agree that I may not assign or delegate this Agreement or any of my obligations hereunder and\nthat any such attempted assignment or delegation shall be deemed void and of no force or effect.\n15. The provisions of this Agreement will not be deemed to have been violated in the event I participate in, or become an employee of, any affiliate\nof the Company. The provisions of this Agreement will not be deemed to have been violated as a result of any actions taken by me within the\nauthorized scope of my involvement with any such affiliate.\n[Signature Page Follows]\nRUBICON TECHNOLOGY, INC.\n-3-\nNON-COMPETITION AGREEMENT\nIN WITNESS WHEREOF, the parties have executed this Non-Competition Agreement as of the date first above written.\nEMPLOYEE\nRUBICON TECHNOLOGY, INC.\n/s/ Hap Hewes\n/s/ William F. Weissman\nHap Hewes\nWilliam F. Weissman, Chief Financial Officer\nPrinted Name\nName, Title\n[Address]\nRUBICON TECHNOLOGY, INC.\n-4-\nNON-COMPETITION AGREEMENT	EX-10.15 2 dex1015.htm NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nExhibit 10.15\nRUBICON TECHNOLOGY, INC.\nNON-COMPETITION AGREEMENT\nI,\nHewes, Hap\n,asof\nApril 6th\n, 2005, in consideration and as a condition of my continued employment by\nRubicon Technology, Inc. (the “Company”), my concurrent receipt herewith of an option grant for _230,000_ shares of the Company’s common\nstock and a new annual base salary totaling $_160,000.00_ and the covenants herein contained, hereby enter into this Non-Competition\nAgreement (the “Agreement”) with the Company as follows (and agree that all existing non-competition agreements or similar arrangements\nbetween the Company and myself, except for non-competition agreements entered into between the Company and myself concurrently herewith or\nafter the date hereof and making specific reference to this Agreement, are hereby superseded by this Agreement):\n1. During the course of my employment, I acknowledge and agree that I will have access to the Company’s most highly confidential information and\ntrade secrets concerning the Company’s manufacture, fabrication, growth, production, and polishing of single crystal materials, including, but not\nlimited to, details on the construction of the Company’s furnaces, the specialized changes made to production equipment and the details of the\nCompany’s specialized crystal fabrication processes.\n2. The term of this Agreement shall be for the period commencing on the date of my initial employment with the Company and shall end on the date\nthat is no later than thirty-six (36) months from the date of termination of my employment for any reason; provided, that this Agreement shall remain\nin effect after the termination of my employment only for so long as the Company pays me an amount equal to fifty percent (50%) of my base salary\n(as in effect on the date of my termination), payable on a monthly basis and in accordance with the Company’s standard payroll practices.\n3. During the term hereof, I will not, without the Company’s prior written consent, directly or indirectly, alone or as a partner, joint venturer, officer,\ndirector, employee, consultant, agent, independent contractor or equity holder of any company or business, perform services in any capacity similar\nto that of my employment with the Company or in any managerial or other type of position in which I might, either purposely or inadvertently,\ndisclose the Company’s trade secret information, for any Competitor. As used herein, “Competitor” means any business entity in the business of\ndeveloping, marketing, distributing, maintaining or selling products or services competitive with the products or services being developed, marketed,\ndistributed, planned, sold or otherwise provided by the Company at the date of the termination of my employment, including, but not limited to,\nNamiki, Shinkosha, Monocrystal, Furakawa, Saint-Gobain Crystals Division, Kyocera Fine Ceramics and Honeywell. I acknowledge that the\nownership by me of not more than one percent (1%) of the shares of stock of any corporation having a class of equity securities actively traded on a\nnational securities exchange or on the NASDAQ Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this paragraph.\n4. During the term hereof, I will not, without the Company’s prior written consent, directly or indirectly, employ, solicit to employ, or engage, or\nknowingly permit any other company or business organization which employs me or is directly or indirectly controlled by me to employ, solicit to\nemploy, or engage, any person who is employed by the Company at any time during the\nRUBICON TECHNOLOGY, INC.\n-1-\nNON-COMPETITION AGREEMENT\nterm hereof, or in any manner seek to induce any such person to leave his or her employment with the Company.\n5. During the term hereof, I will not, without the Company’s prior written consent, solicit or do business with, directly or indirectly, any present or\npast customer of the Company (determined at the termination of my employment with the Company), or any prospective customer of the Company\nwith whom I have had contact prior to the termination of my employment with the Company, in connection with any business activity which would\nviolate any other provision of this Agreement.\n6. I hereby represent that I am not a party to, or bound by the terms of, any agreement with any previous employer or other party to refrain from\nusing or disclosing any trade secret or confidential or proprietary information in the course of my employment with the Company or to refrain from\ncompeting, directly or indirectly, with the business of such previous employer or any other party. I further represent that my performance of all the\nterms of this Agreement, and as an employee of the Company, does not and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge or data acquired by me in confidence or in trust prior to my employment with the Company, and I will not disclose to the\nCompany or induce the Company to use any confidential or proprietary information or material belonging to any previous employer, or others.\n7. I acknowledge and agree to the reasonableness, applicability, scope and nature of the terms, conditions and covenants contained in this\nAgreement, and further agree that the time periods and scope specified in this Agreement are appropriate, minimum and reasonable times and scope\nnecessary to protect the Company’s trade secrets and the Company in the conduct of its business. I represent and warrant to the Company that, in the\nevent of enforcement of the provisions of this Agreement, my experience and capabilities are such that I can obtain work or other employment that\nwould not violate any of the provisions of this Agreement and that the enforcement of such provisions by the Company by way of injunction will not\nprevent me from earning a livelihood.\n8. I agree that the breach of this Agreement by me will cause irreparable damage to the Company and that in the event of such breach the Company\nshall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation\nof my obligations hereunder.\n9. I understand that this Agreement does not create an obligation on the Company or any other person or entity to continue my employment.\n10. Any amendment to or modification of this Agreement, and any waiver of any provision hereof, shall be in writing, executed by both parties. Any\nwaiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach\nhereof.\n11. I hereby agree that each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in\nno way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this\nRUBICON TECHNOLOGY, INC.\n-2-\nNON-COMPETITION AGREEMENT\nAgreement shall for any reason be held to be excessively broad as to scope, activity, or subject so as to be unenforceable at law, such provision or\nprovisions shall be construed by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the maximum extent\ncompatible with the applicable law as it shall then appear.\n12. This Agreement shall be governed in all respects, whether as to validity, construction, capacity, performance, or otherwise, by the laws of the\nState of Illinois, without regard to the conflict of laws provisions thereof, and no action involving this Agreement may be brought except in the\nCircuit Court of Cook County, Illinois or the United States District Court for the Northern District of Illinois, Eastern Division.\n13. The term “Company” shall include Rubicon Technology, Inc., and any of its predecessors, subsidiaries, subdivisions, affiliates or successors. The\nCompany shall have the right to assign this Agreement to its successors and assigns, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n14. Due to the personal nature of this Agreement, I agree that I may not assign or delegate this Agreement or any of my obligations hereunder and\nthat any such attempted assignment or delegation shall be deemed void and of no force or effect.\n15. The provisions of this Agreement will not be deemed to have been violated in the event I participate in, or become an employee of, any affiliate\nof the Company. The provisions of this Agreement will not be deemed to have been violated as a result of any actions taken by me within the\nauthorized scope of my involvement with any such affiliate.\n[Signature Page Follows]\nRUBICON TECHNOLOGY, INC.\n-3-\nNON-COMPETITION AGREEMENT\nIN WITNESS WHEREOF, the parties have executed this Non-Competition Agreement as of the date first above written.\nEMPLOYEE\nRUBICON TECHNOLOGY, INC.\n/s/ Hap Hewes\n/s/ William F. Weissman\nHap Hewes\nWilliam F. Weissman, Chief Financial Officer\nPrinted Name\nName, Title\n[Address]\nRUBICON TECHNOLOGY, INC.\n-4-\nNON-COMPETITION AGREEMENT
1897d60f2aaa58656bc4825339a59266.pdf	effective_date jurisdiction party term	Exhibit B\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made by and between Heidrick & Struggles, Inc., a Delaware Corporation (hereinafter H&S), and the undersigned (hereinafter “Second Party”).\nWHEREAS, H&S has been investing considerable capital, time and effort in establishing and developing computer programs and hardware configurations to computerize certain areas of its executive recruiting process including, without\nlimitation, H&S’s client/search history, and information relating to individuals who may contact H&S or be contacted by H&S; and has confidential and proprietary information relating thereto; and\nWHEREAS, H&S at times receives information from its clients and others which H&S is obligated to treat as confidential or proprietary; and\nWHEREAS, Second Party in the course of its association with H&S will have access to certain of said confidential and proprietary information pertaining to computer programs and hardware configurations and to the business affairs of\nH&S.\nNOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and the association with H&S of Second Party, the parties hereto agree as follows:\n1. “ Confidential Information” shall mean information relating to computer programs and hardware configurations of a proprietary and confidential nature, whether communicated orally or in writing, including without limitation, concepts,\ntechniques, new systems-software planning, processes, designs, circuits, cost data, computer programs, and other technical know-how disclosed by H&S to Second Party or obtained by Second Party through observation or examination of\nH&S’s facilities or procedures. Confidential Information shall also include any information of a confidential nature concerning H&S’s financial information, H&S’s clients or the business and employees of H&S and any information H&S\nhas received from others, which H&S is obligated to treat as confidential or proprietary.\n2. Second Party acknowledges that irreparable injury and damage will result from disclosure to third parties, or utilization for purposes other than those connected with its association with H&S, of Confidential Information.\n3. Second Party shall not, without the prior written consent of H&S, disclose any Confidential Information to any third party and shall not use the Confidential Information except pursuant to and in the course of Second Party’s association\nwith H&S, provided, however, that Second Party shall have no liability to H&S under this Agreement with respect to the disclosure and/or use of any such Confidential Information which:\n(a) Second Party can establish has become publicly known without breach of this Agreement by Second Party, or\n(b) has become known by or available to Second Party prior to H&S’s disclosure of such information to Second Party, as evidenced by written documents received by Second Party\n(prior to H&S’s disclosure to Second Party) from anyone, including Second Party’s employees, agents, or representatives, or\n(c) has become known by or available to Second Party subsequent to H&S’s disclosure of such information to Second Party from anyone, including Second Party’s employees, agents, or representatives, where the original source of such\ninformation was not H&S or persons associated or affiliated with H&S.\n4. Second Party agrees that any disclosure of Confidential Information within Second Party’s own company shall be only such as necessary to accomplish the purpose of Second Party’s association with H&S. Second Party shall take all\nsuch security precautions to protect from disclosure and to keep confidential the Confidential Information as may be necessary, including without limitation, protection of documents from theft, unauthorized duplication and discovery of\ncontents, and restrictions of access by other persons to Confidential Information.\n5. Second Party shall return all written material, photographs, and all other documentation made available or supplied by H&S to Second Party, and all copies and reproductions thereof, on request.\n6. Second Party shall not make or use any copies, synopses or summaries of oral or written material, photographs, or any other documentation or information made available or supplied by H&S to Second Party except such as are\nnecessary for Second Party’s association with H&S or as are necessary to accomplish the purpose of Second Party’s association with H&S. Second Party shall not disclose to any third party the fact of Second Party’s relationship with\nH&S unless H&S, in writing, signed by H&S’s President or Secretary, first approves the disclosure.\n7. H&S retains all rights and remedies afforded it under the patent and other laws of the United States and the States thereof, including without limitation any laws designed to protect proprietary or confidential information.\n8. During the term of this agreement Second Party will be prohibited from providing any similar services to the following designated competitors of H&S: Korn/Ferry, Russell Reynolds & Associates, Spencer Stuart, Egon Zehnder\nInternational, Lamalie Amrop International, Ray & Berndston, LAI Ward Howell International, and A.T. Kearney Executive Search, or any other firm engaged in executive search.\n9. This Agreement sets forth the entire agreement and understanding of the parties and merges all prior discussions between them as to Confidential Information. Neither party may be bound by any definition, condition, representation or\nwaiver other than as expressly stated in this Agreement or as subsequently set forth in writing signed by the parties hereto.\n10. This Agreement shall be governed by the laws of the State of Illinois as applied to contracts entered into and to be performed within the State of Illinois.\n11. Second Party’s obligations under this Agreement shall terminate five (5) years from the date the Confidential Information was obtained.\n12. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, administrators, executors, successors and assigns.\nIN WITNESS WHEREOF, the parties hereto have executed this agreement this 16th day of May, 2011.\nHEIDRICK & STRUGGLES, INC .\nBy:\n/s/ L. Kevin Kelly\nSECOND PARTY\nBy:\n/s/ Richard W. Pehlke	Exhibit B\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made by and between Heidrick & Struggles, Inc., a Delaware Corporation (hereinafter H& S), and the undersigned (hereinafter "Second Party").\nWHEREA S, H&S has been investing considerable capital, time and effort in establishing and developing computer programs and hardware configurations to computerize certain areas of its executive recruiting process including, without\nlimimtion, H&S's clienthearch history, and information relating to individuals who may contact HSrS or be contacted by H&S; and has confidential and propriemry information relating thereto; and\nWHEREA S, H&S at times receives information from its clients and others which H&S is obligated to treat as confidential or propriemry; and\nWHEREA S, Second Party in the course of its association with HSrS will have access to certain of said confidential and proprietary information pertaining to computer programs and hardware configurations and to the business affairs of\nHELSI\nNOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and the association with HSrS of Second Party, the parties hereto agree as follows:\n1. "Confidential Information” shall mean information relating to computer programs and hardware configurations of a proprietary and confidential nature, whether communicated orally or in writing, including without limitation, concepts,\ntechniques, new systems-software planning, processes, designs, circuits, cost data, computer programs, and other technical know-how disclosed by HSrS to Second Party or obtained by Second Party through observation or examination of\nH&S’s facilities or procedures. Confidential Information shall also include any information of a confidential nature concerning H&S's financial information, HSrS's clients or the business and employees of H&S and any information H&S\nhas received from others, which H&S is obligated to treat as confidential or proprietary.\n2. Second Party acknowledges that irreparable injury and damage will result from disclosure to third parties, or utilization for purposes other than those connected with its association with H&S, of Confidential Information.\n3. Second Party shall not, without the prior written consent of H&S, disclose any Confidential Information to any third party and shall not use the Confidential Information except pursuant to and in the course of Second Party’s association\nwith H&S, provided, however, that Second Party shall have no liability to H&S under this Agreement with respect to the disclosure andjor use of any such Confidential Information which:\n(a) Second Party can establish has become publicly known without breach of this Agreement by Second Party, or\n(b) has become known by or available to Second Party priorto H&S’s disclosure of such information to Second Party, as evidenced by written documents received by Second Party\n(prior to H&S' s disclosure to Second Party) from anyone, including Second Party’s employees, agents, or representatives, or\n(c) has become known by or available to Second Party subsequent to HSrS's disclosure of such information to Second Party from anyone, including Second Party' s employees, agents, or representatives, where the original source of such\ninformation was not H&S or persons associated or affiliated with HSrS.\n4. Second Party agrees that any disclosure of Confidential Information within Second Party' s own company shall be only such as necessary to accomplish the purpose of Second Party's association with H&S. Second Party shall take all\nsuch security precautions to protect from disclosure and to keep confidential the Confidential Information as may be necessary, including without limitation, protection of documents from theft, unauthorized duplication and discovery of\ncontents, and restrictions of access by other persons to Confidential Information.\n5. Second Party shall return all written material, photographs, and all other documentation made available or supplied by H&S to Second Party, and all copies and reproductions thereof, on request\n6. Second Party shall not make or use any copies, synopses or summaries of oral or written material, photographs, or any other documenmtion orinformation made available or supplied by HSrS to Second Party except such as are\nnecessary for Second Party' s association with H&S or as are necessary to accomplish the purpose of Second Party's association with H&S. Second Party shall not disclose to any third party the fact of Second Party’s relationship with\nH&S unless H&S, in writing, signed by HSrS' s President or Secretary, first approves the disclosure.\n7. H&S retains all rights and remedies afforded it under the patent and other laws of the United States and the States thereof, including without limitation any laws designed to protect proprietary or confidential information.\n8. During the term of this agreement Second Party will be prohibited from providing any similar services to the following designated competitors of H&S: Kom/Ferry, Russell Reynolds & Associates, Spencer Stuart, Egon Zehnder\nInternational, Larnalie Amrop International, Ray & Bemdston, LAI Ward Howell International, and AT. Kearney Executive Search, or any other firm engaged in executive search.\n9. This Agreement sets forth the entire agreement and undersmnding of the parties and merges all prior discussions between them as to Confidential Information. Neither party may be bound by any definition, condition, representation or\nwaiver other than as expressly stated in this Agreement or as subsequently set forth in writing signed by the parties hereto.\n10. This Agreement shall be governed by the laws of the State of Illinois as applied to contracts entered into and to be performed within the State of Illinois.\n11. Second Party’s obligations under this Agreement shall terminate five (5) years from the date the Confidential Information was obtained.\n12. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their Iespech've heirs, administrators, executors, successors and assigns\nIN WITNESS WHEREOF, the pariies hereto have executed this agreement this 16th day of May, 2011.\nHEIDRICK & STRUGGLES, INCA\nBy: /S/ L. Kevin Kelly\nSECOND PARTY\nBy: /S/Richa1d W. Pehlke	Exhibit B\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made by and between Heidrick & Struggles, Inc. a Delaware Corporation (hereinafter H&S), and the undersigned (hereinafter "Second Party").\nWHEREAS, H&S has been investing considerable capital, time and effort in establishing and developing computer programs and hardware configurations to computerize certain areas of its executive recruiting process including, without\nlimitation, H&S's client/search history, and information relating to individuals who may contact H&S or be contacted by H&S; and has confidential and proprietary information relating thereto; and\nWHEREAS, H&S at times receives information from its clients and others which H&S is obligated to treat as confidential or proprietary; and\nWHEREAS, Second Party in the course of its association with H&S wil have access to certain of said confidential and proprietary information pertaining to computer programs and hardware configurations and to the business affairs of\nH&S.\nNOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and the association with H&S of Second Party, the parties hereto agree as follows:\n1. "Confidential Information" shall mean information relating to computer programs and hardware configurations of a proprietary and confidential nature, whether communicated orally or in writing including without limitation, concepts,\ntechniques, new systems software planning processes, designs, circuits, cost data, computer programs, and other technical know-how disclosed by H&S to Second Party or obtained by Second Party through observation or examination of\nH&S' facilities or procedures. Confidential Information shall also include any information of a confidential nature concering H&S's financial information, H&S's clients or the business and employees of H&S and any information H&S\nhas received from others, which H&S is obligated to treat as confidential or proprietary.\n2. Second Party acknowledges that irreparable injury and damage will result from disclosure to third parties, or utilization for purposes other than those connected with its association with H&S, of Confidential Information.\n3. Second Party shall not, without the prior written consent of H&S, disclose any Confidential Information to any third party and shall not use the Confidential Information except pursuant to and in the course of Second Party's association\nwith H&S, provided, however, that Second Party shal have no liability to H&S under this Agreement with respect to the disclosure and/or use of any such Confidential Information which:\n(a) Second Party can establish has become publicly known without breach of this Agreement by Second Party or\n(b) has become known by or available to Second Party prior to H&S's disclosure of such information to Second Party, as evidenced by written documents received by Second Party\n(prior to H&S's disclosure to Second Party) from anyone, including Second Party's employees agents or representatives, or\n(c) has become known by or available to Second Party subsequent to H&S's disclosure of such information to Second Party from anyone, including Second Party's employees, agents, or representatives, where the original source of such\ninformation was no H&S or persons associated or affiliated with H&S.\n4.\nSecond Party agrees that any disclosure of Confidential Information within Second Party's own company shall be only such as necessary to accomplish the purpose of Second Party's association with H&S Second Party shall take\nall\nsuch security precautions to protect from disclosure and to keep confidential the Confidential Information as may be necessary, including without limitation, protection of documents from theft, unauthorized duplication and discovery of\ncontents, and restrictions of access by other persons to Confidential Information.\n5. Second Party shall return all written material photographs, and all other documentation made available or supplied by H& to Second Party, and all copies and reproductions thereof, on request\n6. Second Party shall not make or use any copies, synopses or summaries of oral or written material, photographs, or any other documentation or information made available or supplied by H&S to Second Party except such as are\nnecessary for Second Party's association with H&S or as are necessary to accomplish the purpose of Second Party's association with H&S Second Party shall not disclose to any third party the fact of Second Party's relationship with\nH&S unless H&S, in writing, signed by H&S's President or Secretary, first approves the disclosure.\n7. .H&S retains all rights and remedies afforded it under the patent and other laws of the United States and the States thereof, including without limitation any laws designed to protect proprietary or confidential information.\n8. During the term of this agreement Second Party will be prohibited from providing any similar services to the following designated competitors of H&S: Kom/Ferry, Russell Reynolds & Associates, Spencer Stuart, Egon Zehnder\nInternational, Lamalie A mrop International, Ray & Bemdston, LAI Ward Howell Interational, and A.T Kearmey Executive Search, or any other firm engaged in executive search\n9. This A greement sets forth the entire agreemen and understanding of the parties and merges all prior discussions between them as to Confidential Information. Neither party may be bound by any definition, condition, representation or\nwaiver other than as expressly stated in this Agreement or as subsequently set forth in writing signed by the parties hereto.\n10. This Agreement shall be governed by the laws of the State of Illinois as applied to contracts entered into and to be performed within the State of Illinois.\n11. Second Party's obligations under this Agreement shall terminate five (5) years from the date the Confidential Information was obtained\n12. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, administrators, executors, successors and assigns.\nIN WITNESS WHEREOF, the parties hereto have executed this agreement this 16th day of May, 2011.\nHEIDRICK & STRUGGLES, INC.\nBy:\nIS/L. Kevin Kelly\nSECOND PARTY\nBy:\n/s/ Richard W. Pehlke	Exhibit B\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made by and between Heidrick & Struggles, Inc., a Delaware Corporation (hereinafter H&S), and the undersigned (hereinafter “Second Party”).\nWHEREAS, H&S has been investing considerable capital, time and effort in establishing and developing computer programs and hardware configurations to computerize certain areas of its executive recruiting process including, without\nlimitation, H&S’s client/search history, and information relating to individuals who may contact H&S or be contacted by H&S; and has confidential and proprietary information relating thereto; and\nWHEREAS, H&S at times receives information from its clients and others which H&S is obligated to treat as confidential or proprietary; and\nWHEREAS, Second Party in the course of its association with H&S will have access to certain of said confidential and proprietary information pertaining to computer programs and hardware configurations and to the business affairs of\nH&S.\nNOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and the association with H&S of Second Party, the parties hereto agree as follows:\n1. “ Confidential Information” shall mean information relating to computer programs and hardware configurations of a proprietary and confidential nature, whether communicated orally or in writing, including without limitation, concepts,\ntechniques, new systems-software planning, processes, designs, circuits, cost data, computer programs, and other technical know-how disclosed by H&S to Second Party or obtained by Second Party through observation or examination of\nH&S’s facilities or procedures. Confidential Information shall also include any information of a confidential nature concerning H&S’s financial information, H&S’s clients or the business and employees of H&S and any information H&S\nhas received from others, which H&S is obligated to treat as confidential or proprietary.\n2. Second Party acknowledges that irreparable injury and damage will result from disclosure to third parties, or utilization for purposes other than those connected with its association with H&S, of Confidential Information.\n3. Second Party shall not, without the prior written consent of H&S, disclose any Confidential Information to any third party and shall not use the Confidential Information except pursuant to and in the course of Second Party’s association\nwith H&S, provided, however, that Second Party shall have no liability to H&S under this Agreement with respect to the disclosure and/or use of any such Confidential Information which:\n(a) Second Party can establish has become publicly known without breach of this Agreement by Second Party, or\n(b) has become known by or available to Second Party prior to H&S’s disclosure of such information to Second Party, as evidenced by written documents received by Second Party\n(prior to H&S’s disclosure to Second Party) from anyone, including Second Party’s employees, agents, or representatives, or\n(c) has become known by or available to Second Party subsequent to H&S’s disclosure of such information to Second Party from anyone, including Second Party’s employees, agents, or representatives, where the original source of such\ninformation was not H&S or persons associated or affiliated with H&S.\n4. Second Party agrees that any disclosure of Confidential Information within Second Party’s own company shall be only such as necessary to accomplish the purpose of Second Party’s association with H&S. Second Party shall take all\nsuch security precautions to protect from disclosure and to keep confidential the Confidential Information as may be necessary, including without limitation, protection of documents from theft, unauthorized duplication and discovery of\ncontents, and restrictions of access by other persons to Confidential Information.\n5. Second Party shall return all written material, photographs, and all other documentation made available or supplied by H&S to Second Party, and all copies and reproductions thereof, on request.\n6. Second Party shall not make or use any copies, synopses or summaries of oral or written material, photographs, or any other documentation or information made available or supplied by H&S to Second Party except such as are\nnecessary for Second Party’s association with H&S or as are necessary to accomplish the purpose of Second Party’s association with H&S. Second Party shall not disclose to any third party the fact of Second Party’s relationship with\nH&S unless H&S, in writing, signed by H&S’s President or Secretary, first approves the disclosure.\n7. H&S retains all rights and remedies afforded it under the patent and other laws of the United States and the States thereof, including without limitation any laws designed to protect proprietary or confidential information.\n8. During the term of this agreement Second Party will be prohibited from providing any similar services to the following designated competitors of H&S: Korn/Ferry, Russell Reynolds & Associates, Spencer Stuart, Egon Zehnder\nInternational, Lamalie Amrop International, Ray & Berndston, LAI Ward Howell International, and A.T. Kearney Executive Search, or any other firm engaged in executive search.\n9. This Agreement sets forth the entire agreement and understanding of the parties and merges all prior discussions between them as to Confidential Information. Neither party may be bound by any definition, condition, representation or\nwaiver other than as expressly stated in this Agreement or as subsequently set forth in writing signed by the parties hereto.\n10. This Agreement shall be governed by the laws of the State of Illinois as applied to contracts entered into and to be performed within the State of Illinois.\n11. Second Party’s obligations under this Agreement shall terminate five (5) years from the date the Confidential Information was obtained.\n12. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, administrators, executors, successors and assigns.\nIN WITNESS WHEREOF, the parties hereto have executed this agreement this 16th day of May, 2011.\nHEIDRICK & STRUGGLES, INC .\nBy:\n/s/ L. Kevin Kelly\nSECOND PARTY\nBy:\n/s/ Richard W. Pehlke
199fba43ae70b39cc4a2b4ebdb96b5df.pdf	effective_date jurisdiction party term	EX-10.2 3 dex102.htm CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nThis CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION AGREEMENT (this “Agreement”) is entered\ninto effective for all purposes as of September 7, 2010 by Benny Ward (“Employee”) in favor of BioDelivery Sciences International, Inc., a\nDelaware corporation (the “Company”).\nIn consideration of and as a condition to the Company’s employment of Employee and of Employee providing employment services to the\nCompany, Employee hereby agrees as follows:\n1. Confidentiality. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, intellectual property, technical data, designs, formulas, test data, customer lists, business plans, marketing and manufacturing plans and\nstrategies, and pricing strategies or other subject matter pertaining to any business of the Company or any of its partners, customers, consultants,\nlicensors, licensees or affiliates (collectively, the “Confidential Information”), which Employee may produce, obtain or otherwise learn of during\nthe course of Employee’s employment with the Company. The “Confidential Information” shall not include information that is or becomes part of\nthe public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or in any way allow any such\nConfidential Information to be delivered to or used by any third parties for any purpose (including, without limitation, any purpose harmful to or\ncompetetive with the interests of the Company) without the specific direction or consent of a duly authorized representative of the Company.\nEmployee acknowledges and agrees that some of the Confidential Information may be considered “material non-public information” for purposes of\nthe federal securities laws (“Insider Information”) and that the Employee will abide by all securities laws relating to the handling of and acting\nupon Insider Information.\n2. Return of Confidential Material. Upon the termination the Employee’s employment with the Company, Employee shall promptly surrender\nand deliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of Employee’s employment with the Company.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, Employee’s entire right, title and\ninterest in and to all Inventions. As used in this agreement, the term “Inventions” shall mean all intellectual property, ideas, improvements, designs,\ndiscoveries, developments, drawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to\npractice, made or conceived by Employee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the\nperiod in which Employee is employed by or performs services for the Company and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal,\noral or other applications\n1\nand/or derivatives thereof (“Delivery Technologies”), applications of the Delivery Technologies to specific drugs, nutraceuticals, genes, vaccines,\nvitamins or other compounds, or result from any task of any nature assigned to or undertaken by Employee or any work performed by Employee for\nor on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after termination of Employee’s employment with the Company. For purposes of this Agreement, the\nterm “Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any\nsimilar right, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Executive Officer of the Company in order to permit the Company\nto enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company’s request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company’s expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company’s own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company’s expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services by\nEmployee to the Company (herein referred to as “Excluded Inventions”) are excluded from the definition of Inventions as used herein. Set forth on\nExhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications, and a brief\ndescription of all unpatented\n2\ninventions which are not the property of another party (including, without limitation, a current or previous contracting party). The list is complete\nand if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within the definition of Inventions. Employee\nwill notify the Company in writing before Employee makes any disclosure or performs any work on behalf of the Company which appears to\nthreaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of Employee’s failure to give such notice,\nEmployee will make no claim against the Company with respect to any such inventions or ideas.\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S . Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that Employee’s performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by Employee in\nconfidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or proprietary information or\nmaterial belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in conflict herewith.\n12. Injunctive Relief. Employee agrees that this Agreement is important to and gravely effects the effective and successful conduct of the\nbusiness of the Company, and it effects its reputation and good will, and is necessary to protect the legitimate business interests of the Company.\nEmployee recognizes and agrees that the Company will suffer irreparable injury in the event of Employee’s breach of any covenant or agreement\ncontained herein and cannot be compensated by monetary damages alone. Employee therefore agrees that the Company, in addition to and without\nlimiting any other remedies or rights that it may have, either under this Agreement or otherwise, shall have the right to obtain injunctive relief, both\ntemporary and permanent, against the Employee from any court of competent jurisdiction, without the necessity of proving actual damages and\nwithout the necessity of posting bond or other security. Employee agrees to pay the Company’s reasonable attorney’s fees and costs for enforcement\nof this Agreement, if the Employee breaches this Agreement.\n13. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee’s compensation by the Company shall not affect the validity or scope of this Agreement.\n14. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate business\ninterests of the Company.\n15. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee’s entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n3\n16. Severabilitv. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n17. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee’s rights or delegate Employee’s\nduties under this Agreement either in whole or in part without the prior written consent of the Company. Any attempted assignment or delegation\nwithout such consent will be null and void.\n18. Governing Law. This Agreement shall be governed by the laws of the State of Delaware except for any conflicts of law rules thereof which\nmight direct the application of the substantive laws of another state.\n19. Counterparts. This Agreement may be signed in two counterparts, each of which may be delivered by facsimile or other electronic\ntransmission and each of which shall be deemed an original and both of which shall together constitute one agreement.\nEXECUTED as of the date set forth below.\n/s/ Benny Ward\nBenny Ward\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy: /s/ Mark A. Sirgo\nName: Mark A. Sirgo\nTitle: President and CEO\n[Signature Page to Confidentiality, Intellectual Property and Non-Competition Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned’s performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nx\nNo inventions or improvements.\n̈\nAs follows:\nAdditional sheets attached.\nDated: September 7, 2010 /s/ Benny Ward\nBenny Ward	EX-10.2 3 dex102.htm CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nThis CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION AGREEMENT (this “Agreement”) is entered\ninto effective for all purposes as of September 7, 2010 by Benny Ward (“Employee”) in favor of BioDelivery Sciences International, Inc., a\nDelaware corporation (the “Company”).\nIn consideration of and as a condition to the Company’s employment of Employee and of Employee providing employment services to the\nCompany, Employee hereby agrees as follows:\n1. Confidentiality. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, intellectual property, technical data, designs, formulas, test data, customer lists, business plans, marketing and manufacturing plans and\nstrategies, and pricing strategies or other subject matter pertaining to any business of the Company or any of its partners, customers, consultants,\nlicensors, licensees or affiliates (collectively, the “Confidential Information”), which Employee may produce, obtain or otherwise learn of during\nthe course of Employee’s employment with the Company. The “Confidential Information” shall not include information that is or becomes part of\nthe public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or in any way allow any such\nConfidential Information to be delivered to or used by any third parties for any purpose (including, without limitation, any purpose harmful to or\ncompetetive with the interests of the Company) without the specific direction or consent of a duly authorized representative of the Company.\nEmployee acknowledges and agrees that some of the Confidential Information may be considered “material non-public information” for purposes of\nthe federal securities laws (“Insider Information™) and that the Employee will abide by all securities laws relating to the handling of and acting\nupon Insider Information.\n2. Return of Confidential Material. Upon the termination the Employee’s employment with the Company, Employee shall promptly surrender\nand deliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of Employee’s employment with the Company.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, Employee’s entire right, title and\ninterest in and to all Inventions. As used in this agreement, the term “Inventions” shall mean all intellectual property, ideas, improvements, designs,\ndiscoveries, developments, drawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to\npractice, made or conceived by Employee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the\nperiod in which Employee is employed by or performs services for the Company and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal,\noral or other applications\nand/or derivatives thereof (“Delivery Technologies”), applications of the Delivery Technologies to specific drugs, nutraceuticals, genes, vaccines,\nvitamins or other compounds, or result from any task of any nature assigned to or undertaken by Employee or any work performed by Employee for\nor on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after termination of Employee’s employment with the Company. For purposes of this Agreement, the\nterm “Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any\nsimilar right, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Executive Officer of the Company in order to permit the Company\nto enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company’s request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company’s expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company’s own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company’s expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services by\nEmployee to the Company (herein referred to as “Excluded Inventions”) are excluded from the definition of Inventions as used herein. Set forth on\nExhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications, and a brief\ndescription of all unpatented\ninventions which are not the property of another party (including, without limitation, a current or previous contracting party). The list is complete\nand if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within the definition of Inventions. Employee\nwill notify the Company in writing before Employee makes any disclosure or performs any work on behalf of the Company which appears to\nthreaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of Employee’s failure to give such notice,\nEmployee will make no claim against the Company with respect to any such inventions or ideas.\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S. Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that Employee’s performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by Employee in\nconfidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or proprietary information or\nmaterial belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in conflict herewith.\n12. Injunctive Relief. Employee agrees that this Agreement is important to and gravely effects the effective and successful conduct of the\nbusiness of the Company, and it effects its reputation and good will, and is necessary to protect the legitimate business interests of the Company.\nEmployee recognizes and agrees that the Company will suffer irreparable injury in the event of Employee’s breach of any covenant or agreement\ncontained herein and cannot be compensated by monetary damages alone. Employee therefore agrees that the Company, in addition to and without\nlimiting any other remedies or rights that it may have, either under this Agreement or otherwise, shall have the right to obtain injunctive relief, both\ntemporary and permanent, against the Employee from any court of competent jurisdiction, without the necessity of proving actual damages and\nwithout the necessity of posting bond or other security. Employee agrees to pay the Company’s reasonable attorney’s fees and costs for enforcement\nof this Agreement, if the Employee breaches this Agreement.\n13. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee’s compensation by the Company shall not affect the validity or scope of this Agreement.\n14. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate business\ninterests of the Company.\n15. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee’s entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n16. Severabilitv. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n17. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee’s rights or delegate Employee’s\nduties under this Agreement either in whole or in part without the prior written consent of the Company. Any attempted assignment or delegation\nwithout such consent will be null and void.\n18. Governing Law. This Agreement shall be governed by the laws of the State of Delaware except for any conflicts of law rules thereof which\nmight direct the application of the substantive laws of another state.\n19. Counterparts. This Agreement may be signed in two counterparts, each of which may be delivered by facsimile or other electronic\ntransmission and each of which shall be deemed an original and both of which shall together constitute one agreement.\nEXECUTED as of the date set forth below.\n/s/ Benny Ward\nBenny Ward\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy: /s/ Mark A. Sirgo\nName: Mark A. Sirgo\nTitle: President and CEO\n[Signature Page to Confidentiality, Intellectual Property and Non-Competition Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned’s performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nX No inventions or improvements.\nAs follows:\nAdditional sheets attached.\nDated: September 7, 2010  /s/ Benny Ward\nBenny Ward	EX-10.2 3 dex102.htm CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nThis CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION AGREEMENT (this "Agreement") is entered\ninto effective for all purposes as of September 7, 2010 by Benny Ward ("Employee") in favor of BioDelivery Sciences International, Inc., a\nDelaware corporation (the "Company").\nIn consideration of and as a condition to the Company's employment of Employee and of Employee providing employment services to the\nCompany, Employee hereby agrees as follows:\n1. Confidentiality.. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, intellectual property, technical data, designs, formulas, test data, customer lists, business plans, marketing and manufacturing plans and\nstrategies, and pricing strategies or other subject matter pertaining to any business of the Company or any of its partners, customers, consultants,\nlicensors, licensees or affiliates (collectively, the "Confidential Information"), which Employee may produce, obtain or otherwise learn of during\nthe\ncourse of Employee's employment with the Company. The "Confidential Information" shall not include information that is or becomes part\nof\nthe public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or in any way allow any such\nConfidential Information to be delivered to or used by any third parties for any purpose (including, without limitation, any purpose harmful to\nor\ncompetetive with the interests of the Company) without the specific direction or consent of a duly authorized representative of the Company.\nEmployee acknowledges and agrees that some of the Confidential Information may be considered "material non-public information" for purposes\nof\nthe federal securities laws ("Insider Information") and that the Employee will abide by all securities laws relating to the handling of and acting\nupon Insider Information.\n2. Return of Confidential Material. Upon the termination the Employee's employment with the Company, Employee shall promptly surrender\nand deliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of Employee's employment with the Company.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, Employee's entire right, title and\ninterest in and to all Inventions. As used in this agreement, the term "Inventions" shall mean all intellectual property, ideas, improvements, designs,\ndiscoveries, developments, drawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to\npractice, made or conceived by Employee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the\nperiod in which Employee is employed by or performs services for the Company and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal,\noral or other applications\n1\nand/or derivatives thereof ("Delivery Technologies"), applications of the Delivery Technologies to specific drugs, nutraceuticals, genes, vaccines,\nvitamins or other compounds, or result from any task of any nature assigned to or undertaken by Employee or any work performed by Employee for\nor on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee\nalso\nhereby\nforever\nwaives\nand\nagrees\nnever\nto\nassert\nagainst\nthe\nCompany,\nits\nsuccessors\nor\nlicensees\nany\nand\nall\nMoral\nRights\nwhich\nEmployee may have in any Inventions, even after termination of Employee's employment with the Company. For purposes of this Agreement, the\nterm "Moral Rights" means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any\nsimilar right, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Executive Officer of the Company in order to permit the Company\nto enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company's request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company's expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company's own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or\nits\nnominee upon request and at the Company's expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services by\nEmployee to the Company (herein referred to as "Excluded Inventions") are excluded from the definition of Inventions as used herein. Set forth on\nExhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications, and a brief\ndescription of all unpatented\n2\ninventions which are not the property of another party (including, without limitation, a current or previous contracting party). The list is complete\nand if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within the definition of Inventions. Employee\nwill notify the Company in writing before Employee makes any disclosure or performs any work on behalf of the Company which appears to\nthreaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of Employee's failure to give such notice,\nEmployee will make no claim against the Company with respect to any such inventions or ideas.\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S. Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that Employee's performance of all the terms of this Agreement and as an employee\nof\nthe\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by Employee in\nconfidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or proprietary information or\nmaterial belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in conflict herewith.\n12. Injunctive Relief. Employee agrees that this Agreement is important to and gravely effects the effective and successful conduct of the\nbusiness of the Company, and it effects its reputation and good will, and is necessary to protect the legitimate business interests of the Company.\nEmployee recognizes and agrees that the Company will suffer irreparable injury in the event of Employee's breach of any covenant or agreement\ncontained herein and cannot be compensated by monetary damages alone. Employee therefore agrees that the Company, in addition to and without\nlimiting any other remedies or rights that it may have, either under this Agreement or otherwise, shall have the right to obtain injunctive relief, both\ntemporary and permanent, against the Employee from any court of competent jurisdiction, without the necessity of proving actual damages and\nwithout the necessity of posting bond or other security. Employee agrees to pay the Company's reasonable attorney's fees and costs for enforcement\nof this Agreement, if the Employee breaches this Agreement.\n13. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee's compensation by the Company shall not affect the validity or scope of this Agreement.\n14. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate business\ninterests of the Company.\n15. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee's entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n3\n16. Severabilitv. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n17. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee's rights or delegate Employee's\nduties under this Agreement either in whole or in part without the prior written consent of the Company. Any attempted assignment or delegation\nwithout such consent will be null and void.\n18. Governing Law. This Agreement shall be governed by the laws of the State of Delaware except for any conflicts of law rules thereof which\nmight direct the application of the substantive laws of another state.\n19. Counterparts. This Agreement may be signed in two counterparts, each of which may be delivered by facsimile or other electronic\ntransmission and each of which shall be deemed an original and both of which shall together constitute one agreement.\nEXECUTED as of the date set forth below.\n/s/ Benny Ward\nBenny Ward\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy: /s/ Mark A. Sirgo\nName: Mark A. Sirgo\nTitle: President and CEO\n[Signature Page to Confidentiality, Intellectual Property and Non-Competition Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned's performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nX\nNo inventions or improvements.\nAs follows:\nAdditional sheets attached.\nDated: September 7, 2010\n/s/ Benny Ward\nBenny Ward	EX-10.2 3 dex102.htm CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nThis CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION AGREEMENT (this “Agreement”) is entered\ninto effective for all purposes as of September 7, 2010 by Benny Ward (“Employee”) in favor of BioDelivery Sciences International, Inc., a\nDelaware corporation (the “Company”).\nIn consideration of and as a condition to the Company’s employment of Employee and of Employee providing employment services to the\nCompany, Employee hereby agrees as follows:\n1. Confidentiality. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, intellectual property, technical data, designs, formulas, test data, customer lists, business plans, marketing and manufacturing plans and\nstrategies, and pricing strategies or other subject matter pertaining to any business of the Company or any of its partners, customers, consultants,\nlicensors, licensees or affiliates (collectively, the “Confidential Information”), which Employee may produce, obtain or otherwise learn of during\nthe course of Employee’s employment with the Company. The “Confidential Information” shall not include information that is or becomes part of\nthe public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or in any way allow any such\nConfidential Information to be delivered to or used by any third parties for any purpose (including, without limitation, any purpose harmful to or\ncompetetive with the interests of the Company) without the specific direction or consent of a duly authorized representative of the Company.\nEmployee acknowledges and agrees that some of the Confidential Information may be considered “material non-public information” for purposes of\nthe federal securities laws (“Insider Information”) and that the Employee will abide by all securities laws relating to the handling of and acting\nupon Insider Information.\n2. Return of Confidential Material. Upon the termination the Employee’s employment with the Company, Employee shall promptly surrender\nand deliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of Employee’s employment with the Company.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, Employee’s entire right, title and\ninterest in and to all Inventions. As used in this agreement, the term “Inventions” shall mean all intellectual property, ideas, improvements, designs,\ndiscoveries, developments, drawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to\npractice, made or conceived by Employee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the\nperiod in which Employee is employed by or performs services for the Company and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal,\noral or other applications\n1\nand/or derivatives thereof (“Delivery Technologies”), applications of the Delivery Technologies to specific drugs, nutraceuticals, genes, vaccines,\nvitamins or other compounds, or result from any task of any nature assigned to or undertaken by Employee or any work performed by Employee for\nor on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after termination of Employee’s employment with the Company. For purposes of this Agreement, the\nterm “Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any\nsimilar right, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Executive Officer of the Company in order to permit the Company\nto enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company’s request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company’s expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company’s own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company’s expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services by\nEmployee to the Company (herein referred to as “Excluded Inventions”) are excluded from the definition of Inventions as used herein. Set forth on\nExhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications, and a brief\ndescription of all unpatented\n2\ninventions which are not the property of another party (including, without limitation, a current or previous contracting party). The list is complete\nand if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within the definition of Inventions. Employee\nwill notify the Company in writing before Employee makes any disclosure or performs any work on behalf of the Company which appears to\nthreaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of Employee’s failure to give such notice,\nEmployee will make no claim against the Company with respect to any such inventions or ideas.\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S . Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that Employee’s performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by Employee in\nconfidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or proprietary information or\nmaterial belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in conflict herewith.\n12. Injunctive Relief. Employee agrees that this Agreement is important to and gravely effects the effective and successful conduct of the\nbusiness of the Company, and it effects its reputation and good will, and is necessary to protect the legitimate business interests of the Company.\nEmployee recognizes and agrees that the Company will suffer irreparable injury in the event of Employee’s breach of any covenant or agreement\ncontained herein and cannot be compensated by monetary damages alone. Employee therefore agrees that the Company, in addition to and without\nlimiting any other remedies or rights that it may have, either under this Agreement or otherwise, shall have the right to obtain injunctive relief, both\ntemporary and permanent, against the Employee from any court of competent jurisdiction, without the necessity of proving actual damages and\nwithout the necessity of posting bond or other security. Employee agrees to pay the Company’s reasonable attorney’s fees and costs for enforcement\nof this Agreement, if the Employee breaches this Agreement.\n13. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee’s compensation by the Company shall not affect the validity or scope of this Agreement.\n14. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate business\ninterests of the Company.\n15. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee’s entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n3\n16. Severabilitv. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n17. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee’s rights or delegate Employee’s\nduties under this Agreement either in whole or in part without the prior written consent of the Company. Any attempted assignment or delegation\nwithout such consent will be null and void.\n18. Governing Law. This Agreement shall be governed by the laws of the State of Delaware except for any conflicts of law rules thereof which\nmight direct the application of the substantive laws of another state.\n19. Counterparts. This Agreement may be signed in two counterparts, each of which may be delivered by facsimile or other electronic\ntransmission and each of which shall be deemed an original and both of which shall together constitute one agreement.\nEXECUTED as of the date set forth below.\n/s/ Benny Ward\nBenny Ward\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy: /s/ Mark A. Sirgo\nName: Mark A. Sirgo\nTitle: President and CEO\n[Signature Page to Confidentiality, Intellectual Property and Non-Competition Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned’s performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nx\nNo inventions or improvements.\n̈\nAs follows:\nAdditional sheets attached.\nDated: September 7, 2010 /s/ Benny Ward\nBenny Ward
19d0cc3894d25d570fc28283ff763ba7.pdf	effective_date jurisdiction party term	EXHIBIT M NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement ("Agreement") is entered into as of\nthe date last written below between Cisco Systems, Inc. a California corporation having its principal place of business at\n170 West Tasman Drive, San Jose, California 95134-1706 (and its wholly owned subsidiaries), ("Cisco") and\n__________________\n_____________________________ ________________________, a _______________________\n____________________________________\ncorporation having its principal place of business at\n___________________________________________________________________. In consideration of the mutual\npromises and covenants contained in this Agreement and the disclosure of confidential information to each other, the\nparties to this Agreement agree as follows: 1. DEFINITION. "Confidential Information" means the terms and conditions\nof this Agreement, the existence of the discussions between the parties, the information described in Section 2 below, and\nany other information concerning the Purpose defined below, including but not limited to, information regarding each\nparty's product plans, product designs, product costs, product prices, finances, marketing plans, business opportunities,\npersonnel, research and development activities, know-how and pre-release products; provided that information disclosed\nby the disclosing party ("Disclosing Party") in written or other tangible form will be considered Confidential Information\nby the receiving party ("Receiving Party") only if such information is conspicuously designated as "Confidential,"\n"Proprietary" or a similar legend. Information disclosed orally shall only be considered Confidential Information if: (i)\nidentified as confidential, proprietary or the like at the time of disclosure, and (ii) confirmed in writing within thirty (30)\ndays of disclosure. Confidential Information disclosed to the Receiving Party by any affiliate or agent of the Disclosing\nParty is subject to this Agreement. 2. DESCRIPTION. The Confidential Information to be disclosed under this\nAgreement is described as follows: Cisco: Cisco -------------------------------------------------------------------\n[Other party: ("Party")] -------------------------------------------------------- 3. PURPOSE . The Receiving Party may use the\nConfidential Information solely for the purpose of ("Purpose"): Cisco:\n-------------------------------------------------------------------------- [Otherparty:]\n------------------------------------------------------------------ 4.DISCLOSURE.TheReceivingParty shall not disclose the\nConfidential Information to any third party other than employees and contractors of the Receiving Party who have a need\nto have access to and knowledge of the Confidential Information solely for the 60 SonicWALL OEM Agreement Purpose\nauthorized above. The Receiving Party shall have entered into non-disclosure agreements with such employees and\ncontractors having obligations of confidentiality as strict as those herein prior to disclosure to such employees and\ncontractors to assure against unauthorized use or disclosure. 5. EXCEPTIONS TO CONFIDENTIAL INFORMATION.\nThe Receiving Party shall have no obligation with respect to information which (i) was rightfully in possession of or\nknown to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii)\nis, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained\nby the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is\ndeveloped by or for the Receiving Party without use of the Confidential Information and such independent development\ncan be shown by documentary evidence; (v) becomes available to the Receiving Party by wholly lawful inspection or\nanalysis of products offered for sale without breach of any contractual\nobligations; and (vi) is transmitted by a party after receiving written notification from the other party that it does not\ndesire to receive any further Confidential Information. Further, the Receiving Party may disclose Confidential\nInformation pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides\nthe Disclosing Party: (a) prior written notice of such obligation; and (b) the opportunity to oppose such disclosure or\nobtain a protective order. 6. RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon written\ndemand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the\nConfidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt\nof demand; and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with\nthe obligations set forth in this paragraph. 7. INDEPENDENT DEVELOPMENT AND RESIDUALS. The terms of\nconfidentiality under this Agreement shall not be construed to limit either party's right to develop independently or\nacquire products without use of the other party's Confidential Information. The Disclosing Party acknowledges that the\nReceiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will prohibit the\nReceiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential\nInformation provided that the Receiving Party does not violate any of its obligations under this Agreement in connection\nwith such development. 8. NO LICENSES . Each party shall retain all right, title and interest to such party's Confidential\nInformation. No license under any trademark, patent or copyright, or application for same which are now or thereafter\nmay be obtained by such party is either granted or implied by the disclosure of Confidential Information. 61 SonicWALL\nOEM Agreement 9. DISCLAIMER . CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITH ALL FAULTS.\nIN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF\nTHE CONFIDENTIAL INFORMATION. None of the Confidential Information disclosed by the parties constitutes any\nrepresentation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement\nof trademarks, patents, copyrights, any right of privacy, or any rights of third persons. 10. EXPORT . The parties\nacknowledge that the Confidential Information disclosed by each of them under this Agreement may be subject to export\ncontrols under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export,\nre-export or transfer Confidential Information of the other party without first obtaining all required United States\nauthorizations or licenses. 11. TERM . This Agreement shall continue from the date last written below until terminated by\neither party by giving thirty (30) days written notice to the other party of its intent to terminate this Agreement.\nNotwithstanding such termination, the obligations of the Receiving Party concerning confidentiality shall terminate five\n(5) years following receipt of the Confidential Information. 12. GENERAL. Each party acknowledges that monetary\nremedies may be inadequate to protect Confidential Information and that injunctive relief may be appropriate to protect\nsuch Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software\nor hardware disclosed to it under this Agreement and shall not remove, overprint or deface any notice of confidentiality,\ncopyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of\nConfidential Information it obtains from the Disclosing Party. The parties hereto are independent contractors. Neither\nthis Agreement nor any right granted hereunder shall be assignable or otherwise transferable. If any term of this\nAgreement shall be held to be illegal or unenforceable by a court of competent jurisdiction, the remaining terms shall\nremain in full force and effect. This Agreement may be modified only by a writing signed by both parties. This\nAgreement shall be construed in accordance with the laws of the State of California. This Agreement represents the\nentire agreement of the parties hereto pertaining to the subject matter of this Agreement, and supersedes any and all prior\noral discussions and/or written correspondence or agreements between the parties with respect thereto. 62 SonicWALL\nOEM Agreement IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last written below.\nCISCO SYSTEMS, INC. -- - -- - -- - -- - -- - -- - -- - -- -- - -- - -- - -- - -- By By ------------------------------------ -------------------------------\n-- - Name Name ----------------------------------- --------------------------------- Title Title ---------------------------------\n-- -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - Date Date ----------------------------------- --------------------------------	EXHIBIT M NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement ("Agreement") is entered into as of\nthe date last written below between Cisco Systems, Inc. a California corporation having its principal place of business at\n170 West Tasman Drive, San Jose, California 95134-1706 (and its wholly owned subsidiaries), ("Cisco") and\n,a\ncorporation having its principal place of business at\n. In consideration of the mutual\npromises and covenants contained in this Agreement and the disclosure of confidential information to each other, the\nparties to this Agreement agree as follows: 1. DEFINITION. "Confidential Information" means the terms and conditions\nof this Agreement, the existence of the discussions between the parties, the information described in Section 2 below, and\nany other information concerning the Purpose defined below, including but not limited to, information regarding each\nparty's product plans, product designs, product costs, product prices, finances, marketing plans, business opportunities,\npersonnel, research and development activities, know-how and pre-release products; provided that information disclosed\nby the disclosing party ("Disclosing Party") in written or other tangible form will be considered Confidential Information\nby the receiving party ("Receiving Party") only if such information is conspicuously designated as "Confidential,"\n"Proprietary"” or a similar legend. Information disclosed orally shall only be considered Confidential Information if: (i)\nidentified as confidential, proprietary or the like at the time of disclosure, and (ii) confirmed in writing within thirty (30)\ndays of disclosure. Confidential Information disclosed to the Receiving Party by any affiliate or agent of the Disclosing\nParty is subject to this Agreement. 2. DESCRIPTION. The Confidential Information to be disclosed under this\nAgreement is described as follows: CisSCO: CiSCO ===mmmn=mmmmmmmmm s oo e\n[Other party: ("Party")] -=--==-==mmm oo o e 3. PURPOSE. The Receiving Party may use the\nConfidential Information solely for the purpose of ("Purpose"): Cisco:\n-------------------------------------------------------------------------- [Other party:]\n------------------------------------------------------------------ 4. DISCLOSURE. The Receiving Party shall not disclose the\nConfidential Information to any third party other than employees and contractors of the Receiving Party who have a need\nto have access to and knowledge of the Confidential Information solely for the 60 SonicWALL OEM Agreement Purpose\nauthorized above. The Receiving Party shall have entered into non-disclosure agreements with such employees and\ncontractors having obligations of confidentiality as strict as those herein prior to disclosure to such employees and\ncontractors to assure against unauthorized use or disclosure. 5. EXCEPTIONS TO CONFIDENTIAL INFORMATION.\nThe Receiving Party shall have no obligation with respect to information which (i) was rightfully in possession of or\nknown to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii)\nis, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained\nby the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is\ndeveloped by or for the Receiving Party without use of the Confidential Information and such independent development\ncan be shown by documentary evidence; (v) becomes available to the Receiving Party by wholly lawful inspection or\nanalysis of products offered for sale without breach of any contractual\n \n \nobligations; and (vi) is transmitted by a party after receiving written notification from the other party that it does not\ndesire to receive any further Confidential Information. Further, the Receiving Party may disclose Confidential\nInformation pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides\nthe Disclosing Party: (a) prior written notice of such obligation; and (b) the opportunity to oppose such disclosure or\nobtain a protective order. 6. RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon written\ndemand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the\nConfidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt\nof demand; and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with\nthe obligations set forth in this paragraph. 7. INDEPENDENT DEVELOPMENT AND RESIDUALS. The terms of\nconfidentiality under this Agreement shall not be construed to limit either party's right to develop independently or\nacquire products without use of the other party's Confidential Information. The Disclosing Party acknowledges that the\nReceiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will prohibit the\nReceiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential\nInformation provided that the Receiving Party does not violate any of its obligations under this Agreement in connection\nwith such development. 8. NO LICENSES. Each party shall retain all right, title and interest to such party's Confidential\nInformation. No license under any trademark, patent or copyright, or application for same which are now or thereafter\nmay be obtained by such party is either granted or implied by the disclosure of Confidential Information. 61 SonicWALL\nOEM Agreement 9. DISCLAIMER. CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITH ALL FAULTS.\nIN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF\nTHE CONFIDENTIAL INFORMATION. None of the Confidential Information disclosed by the parties constitutes any\nrepresentation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement\nof trademarks, patents, copyrights, any right of privacy, or any rights of third persons. 10. EXPORT. The parties\nacknowledge that the Confidential Information disclosed by each of them under this Agreement may be subject to export\ncontrols under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export,\nre-export or transfer Confidential Information of the other party without first obtaining all required United States\nauthorizations or licenses. 11. TERM. This Agreement shall continue from the date last written below until terminated by\neither party by giving thirty (30) days written notice to the other party of its intent to terminate this Agreement.\nNotwithstanding such termination, the obligations of the Receiving Party concerning confidentiality shall terminate five\n(5) years following receipt of the Confidential Information. 12. GENERAL. Each party acknowledges that monetary\nremedies may be inadequate to protect Confidential Information and that injunctive relief may be appropriate to protect\nsuch Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software\nor hardware disclosed to it under this Agreement and shall not remove, overprint or deface any notice of confidentiality,\ncopyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of\nConfidential Information it obtains from the Disclosing Party. The parties hereto are independent contractors. Neither\nthis Agreement nor any right granted hereunder shall be assignable or otherwise transferable. If any term of this\nAgreement shall be held to be illegal or unenforceable by a court of competent jurisdiction, the remaining terms shall\nremain in full force and effect. This Agreement may be modified only by a writing signed by both parties. This\nAgreement shall be construed in accordance with the laws of the State of California. This Agreement represents the\nentire agreement of the parties hereto pertaining to the subject matter of this Agreement, and supersedes any and all prior\noral discussions and/or written correspondence or agreements between the parties with respect thereto. 62 SonicWALL\nOEM Agreement IN WITNESS WHEREQF, the parties have executed this Agreement as of the date last written below.\nCISCO SYSTEMS, INC. —----mmmmmmmmmm oo By By oo\n-—- Name Name -------m oo oo e Title Title --------=m=mmmmmm oo	EXHIBIT M NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement ("Agreement") is entered into as of\nthe date last written below between Cisco Systems, Inc. a California corporation having its principal place of business at\n170 West Tasman Drive, San Jose, California 95134-1706 (and its wholly owned subsidiaries), ("Cisco") and\na\ncorporation having its principal place of business at\nIn consideration of the mutual\npromises and covenants contained in this Agreement and the disclosure of confidential information to each other, the\nparties to this Agreement agree as follows: 1. DEFINITION. "Confidential Information" means the terms and conditions\nof this Agreement, the existence of the discussions between the parties, the information described in Section 2 below, and\nany other information concerning the Purpose defined below, including but not limited to, information regarding each\nparty's product plans, product designs, product costs, product prices, finances, marketing plans, business opportunities,\npersonnel, research and development activities, know-how and pre-release products; provided that information disclosed\nby the disclosing party ("Disclosing Party") in written or other tangible form will be considered Confidential Information\nby the receiving party ("Receiving Party") only if such information is conspicuously designated as "Confidential,"\n"Proprietary" or a similar legend. Information disclosed orally shall only be considered Confidential Information if: (i)\nidentified as confidential, proprietary or the like at the time of disclosure, and (ii) confirmed in writing within thirty (30)\ndays of disclosure. Confidential Information disclosed to the Receiving Party by any affiliate or agent of the Disclosing\nParty is subject to this Agreement 2. DESCRIPTION. The Confidential Information to be disclosed under this\nAgreement is described as follows: Cisco: Cisco\n[Other party: ("Party")]\n3. PURPOSE. The Receiving Party may use the\nConfidential Information solely for the purpose of ("Purpose"): Cisco:\n[Other party:]\n4. DISCLOSURE. The Receiving Party shall not disclose the\nConfidential Information to any third party other than employees and contractors of the Receiving Party who have a need\nto have access to and knowledge of the Confidential Information solely for the 60 SonicWALL OEM Agreement Purpose\nauthorized above. The Receiving Party shall have entered into non-disclosure agreements with such employees and\ncontractors having obligations of confidentiality as strict as those herein prior to disclosure to such employees and\ncontractors\nto\nassure\nagainst\nunauthorized\nuse\nor\ndisclosure.\n5.\nEXCEPTIONS\nTO\nCONFIDENTIAL\nINFORMATION.\nThe Receiving Party shall have no obligation with respect to information which (i) was rightfully in possession of\nor\nknown to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii)\nis, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained\nby the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is\ndeveloped by or for the Receiving Party without use of the Confidential Information and such independent development\ncan be shown by documentary evidence; (v) becomes available to the Receiving Party by wholly lawful inspection or\nanalysis of products offered for sale without breach of any contractual\nobligations; and (vi) is transmitted by a party after receiving written notification from the other party that it does not\ndesire to receive any further Confidential Information. Further, the Receiving Party may disclose Confidential\nInformation pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides\nthe Disclosing Party: (a) prior written notice of such obligation; and (b) the opportunity to oppose such disclosure or\nobtain a protective order. 6. RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon written\ndemand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the\nConfidentia Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt\nof demand; and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with\nthe obligations set forth in this paragraph. 7. INDEPENDENT DEVELOPMENT AND RESIDUALS. The terms of\nconfidentiality under this Agreement shall not be construed to limit either party's right to develop independently or\nacquire products without use of the other party's Confidential Information. The Disclosing Party acknowledges that the\nReceiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will prohibit the\nReceiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential\nInformation provided that the Receiving Party does not violate any of its obligations under this Agreement in connection\nwith such development. 8. NO LICENSES. Each party shall retain all right, title and interest to such party's Confidential\nInformation. No license under any trademark, patent or copyright, or application for same which are now or thereafter\nmay be obtained by such party is either granted or implied by the disclosure of Confidential Information. 61 SonicWALL\nOEM Agreement 9. DISCLAIMER. CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITH ALL FAULTS.\nIN\nNO\nEVENT\nSHALL\nTHE\nDISCLOSING\nPARTY\nBE\nLIABLE\nFOR\nTHE\nACCURACY\nOR\nCOMPLETENESS\nOF\nTHE CONFIDENTIAL INFORMATION. None of the Confidential Information disclosed by the parties constitutes any\nrepresentation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement\nof trademarks, patents, copyrights, any right of privacy, or any rights of third persons. 10. EXPORT. The parties\nacknowledge that the Confidential Information disclosed by each of them under this Agreement may be subject to export\ncontrols under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export,\nre-export or transfer Confidential Information of the other party without first obtaining all required United States\nauthorizations or licenses. 11. TERM. This Agreement shall continue from the date last written below until terminated by\neither party by giving thirty (30) days written notice to the other party of its intent to terminate this Agreement.\nNotwithstanding such termination, the obligations of the Receiving Party concerning confidentiality shall terminate\nfive\n(5) years following receipt of the Confidential Information. 12. GENERAL. Each party acknowledges that monetary\nremedies may be inadequate to protect Confidential Information and that injunctive relief may be appropriate to protect\nsuch Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software\nor hardware disclosed to it under this Agreement and shall not remove, overprint or deface any notice of confidentiality,\ncopyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of\nConfidential Information it obtains from the Disclosing Party. The parties hereto are independent contractors. Neither\nthis Agreement nor any right granted hereunder shall be assignable or otherwise transferable. If any term of this\nAgreement shall be held to be illegal or unenforceable by a court of competent jurisdiction, the remaining terms shall\nremain in full force and effect. This Agreement may be modified only by a writing signed by both parties. This\nAgreement shall be construed in accordance with the laws of the State of California. This Agreement represents the\nentire agreement of the parties hereto pertaining to the subject matter of this Agreement, and supersedes any and all prior\noral discussions and/or written correspondence or agreements between the parties with respect thereto. 62 Sonic SonicWALL\nOEM Agreement IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last written below.\nCISCO SYSTEMS, INC.\nBy By\nName Name\nTitle Title\nDate Date	EXHIBIT M NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement ("Agreement") is entered into as of\nthe date last written below between Cisco Systems, Inc. a California corporation having its principal place of business at\n170 West Tasman Drive, San Jose, California 95134-1706 (and its wholly owned subsidiaries), ("Cisco") and\n__________________\n_____________________________ ________________________, a _______________________\n____________________________________\ncorporation having its principal place of business at\n___________________________________________________________________. In consideration of the mutual\npromises and covenants contained in this Agreement and the disclosure of confidential information to each other, the\nparties to this Agreement agree as follows: 1. DEFINITION. "Confidential Information" means the terms and conditions\nof this Agreement, the existence of the discussions between the parties, the information described in Section 2 below, and\nany other information concerning the Purpose defined below, including but not limited to, information regarding each\nparty's product plans, product designs, product costs, product prices, finances, marketing plans, business opportunities,\npersonnel, research and development activities, know-how and pre-release products; provided that information disclosed\nby the disclosing party ("Disclosing Party") in written or other tangible form will be considered Confidential Information\nby the receiving party ("Receiving Party") only if such information is conspicuously designated as "Confidential,"\n"Proprietary" or a similar legend. Information disclosed orally shall only be considered Confidential Information if: (i)\nidentified as confidential, proprietary or the like at the time of disclosure, and (ii) confirmed in writing within thirty (30)\ndays of disclosure. Confidential Information disclosed to the Receiving Party by any affiliate or agent of the Disclosing\nParty is subject to this Agreement. 2. DESCRIPTION. The Confidential Information to be disclosed under this\nAgreement is described as follows: Cisco: Cisco -------------------------------------------------------------------\n[Other party: ("Party")] -------------------------------------------------------- 3. PURPOSE . The Receiving Party may use the\nConfidential Information solely for the purpose of ("Purpose"): Cisco:\n-------------------------------------------------------------------------- [Otherparty:]\n------------------------------------------------------------------ 4.DISCLOSURE.TheReceivingParty shall not disclose the\nConfidential Information to any third party other than employees and contractors of the Receiving Party who have a need\nto have access to and knowledge of the Confidential Information solely for the 60 SonicWALL OEM Agreement Purpose\nauthorized above. The Receiving Party shall have entered into non-disclosure agreements with such employees and\ncontractors having obligations of confidentiality as strict as those herein prior to disclosure to such employees and\ncontractors to assure against unauthorized use or disclosure. 5. EXCEPTIONS TO CONFIDENTIAL INFORMATION.\nThe Receiving Party shall have no obligation with respect to information which (i) was rightfully in possession of or\nknown to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii)\nis, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained\nby the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is\ndeveloped by or for the Receiving Party without use of the Confidential Information and such independent development\ncan be shown by documentary evidence; (v) becomes available to the Receiving Party by wholly lawful inspection or\nanalysis of products offered for sale without breach of any contractual\nobligations; and (vi) is transmitted by a party after receiving written notification from the other party that it does not\ndesire to receive any further Confidential Information. Further, the Receiving Party may disclose Confidential\nInformation pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides\nthe Disclosing Party: (a) prior written notice of such obligation; and (b) the opportunity to oppose such disclosure or\nobtain a protective order. 6. RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon written\ndemand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the\nConfidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt\nof demand; and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with\nthe obligations set forth in this paragraph. 7. INDEPENDENT DEVELOPMENT AND RESIDUALS. The terms of\nconfidentiality under this Agreement shall not be construed to limit either party's right to develop independently or\nacquire products without use of the other party's Confidential Information. The Disclosing Party acknowledges that the\nReceiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will prohibit the\nReceiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential\nInformation provided that the Receiving Party does not violate any of its obligations under this Agreement in connection\nwith such development. 8. NO LICENSES . Each party shall retain all right, title and interest to such party's Confidential\nInformation. No license under any trademark, patent or copyright, or application for same which are now or thereafter\nmay be obtained by such party is either granted or implied by the disclosure of Confidential Information. 61 SonicWALL\nOEM Agreement 9. DISCLAIMER . CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITH ALL FAULTS.\nIN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF\nTHE CONFIDENTIAL INFORMATION. None of the Confidential Information disclosed by the parties constitutes any\nrepresentation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement\nof trademarks, patents, copyrights, any right of privacy, or any rights of third persons. 10. EXPORT . The parties\nacknowledge that the Confidential Information disclosed by each of them under this Agreement may be subject to export\ncontrols under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export,\nre-export or transfer Confidential Information of the other party without first obtaining all required United States\nauthorizations or licenses. 11. TERM . This Agreement shall continue from the date last written below until terminated by\neither party by giving thirty (30) days written notice to the other party of its intent to terminate this Agreement.\nNotwithstanding such termination, the obligations of the Receiving Party concerning confidentiality shall terminate five\n(5) years following receipt of the Confidential Information. 12. GENERAL. Each party acknowledges that monetary\nremedies may be inadequate to protect Confidential Information and that injunctive relief may be appropriate to protect\nsuch Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software\nor hardware disclosed to it under this Agreement and shall not remove, overprint or deface any notice of confidentiality,\ncopyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of\nConfidential Information it obtains from the Disclosing Party. The parties hereto are independent contractors. Neither\nthis Agreement nor any right granted hereunder shall be assignable or otherwise transferable. If any term of this\nAgreement shall be held to be illegal or unenforceable by a court of competent jurisdiction, the remaining terms shall\nremain in full force and effect. This Agreement may be modified only by a writing signed by both parties. This\nAgreement shall be construed in accordance with the laws of the State of California. This Agreement represents the\nentire agreement of the parties hereto pertaining to the subject matter of this Agreement, and supersedes any and all prior\noral discussions and/or written correspondence or agreements between the parties with respect thereto. 62 SonicWALL\nOEM Agreement IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last written below.\nCISCO SYSTEMS, INC. -- - -- - -- - -- - -- - -- - -- - -- -- - -- - -- - -- - -- By By ------------------------------------ -------------------------------\n-- - Name Name ----------------------------------- --------------------------------- Title Title ---------------------------------\n-- -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - Date Date ----------------------------------- --------------------------------
1a22349aa8f7f1dab06923e1f1df6e8e.pdf	effective_date jurisdiction party term	EX-4 .04 5 s-1exhibit404.htm EXHIBIT 4.04\nExhibit 4.04\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is entered into as of March 21, 2014 (the “Effective Date”)\nby and between Intel Corporation (“Intel”) and Cloudera, Inc. (“Cloudera,” and, together with Intel, each a “Party” or\ntogether the “Parties”).\nWHEREAS, Cloudera may provide certain confidential information (i) to Intel as a result of its notice,\ninformation and inspection rights as a shareholder of Cloudera and in connection with negotiating Proposed Transactions\n(as defined below) (as set forth in more detail below) and (ii) to the Intel Designee (as defined below).\nWHEREAS, any confidential information provided to or disclosed by either party pursuant to the terms of the\nCommercial Agreement will be governed by the terms of the MNDA and not this Agreement.\nNOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, the Parties\nintending to be legally bound agree as follows:\n1. Definitions. For the purposes of this Agreement, the following terms have the following meanings:\n(a)\n“Affiliate” of a person shall include any person that, directly or indirectly, controls, is\ncontrolled by or is under common control with such person. The term “control” means the possession of the power,\ndirectly or indirectly, to direct or cause the direction of the management and affairs of a person.\n(b)\n“Board” means the Board of Directors of Cloudera.\n(c)\n“Commercial Agreement” means that certain Collaboration and Optimization Agreement,\nbetween the Parties, dated as of March 21, 2014.\n(d)\n“Confidential Information” shall mean all information, software, data and analysis (including\nwithout limitation information in tangible or intangible form relating to and/or including released or unreleased products\nand services (including without limitation any product or service names, titles, designs, ideas, concepts, scripts and\nschedules), the marketing or promotion of any product, business policies or practices, business plans and forecasts,\npotential transactions and business combinations and information received from others that Cloudera is obligated to treat\nas confidential) in each case that is furnished by Cloudera or its Representatives, and provided to (i) the Intel Designee\nby reason of his or her position as a member of the Board (the “Board Confidential Information”), (ii) Intel or its\nRepresentatives in the form of non‐public information received pursuant to the Investor Rights Agreement, the Right of\nFirst Refusal and Co‐Sale Agreement, or the Voting Agreement, or pursuant to shareholder information or inspection\nrights under applicable law ( the “Shareholder Confidential Information”), or (iii) to Intel or its Representatives\npursuant to the Standstill Agreement in order to enable Intel to evaluate Cloudera and enter into negotiations and\nexecution of a Proposed Transaction (“Proposed Transaction Information”) shall be considered Confidential\nInformation, as well as any analyses, compilations,\nstudies, documents or other material, regardless of the form thereof, prepared by Intel or its Representatives containing\nor based in whole or in part upon such information, software, data or analysis. Confidential Information does not include\ninformation, software, data or analysis that: (A) is when furnished or thereafter becomes publicly available other than as\na result of a disclosure by Intel or its Representatives in violation of this Agreement, (B) is already in the possession of\nor becomes available to Intel or its Representatives on a non‐confidential basis from a source other than Cloudera or its\nRepresentatives, provided that, to Intel’s knowledge, such source is not and was not bound by an obligation of\nconfidentiality to Cloudera, its Representatives or any other party with regard to such information, software, data or\nanalysis, or (C) Intel can demonstrate was independently developed without use of or reference to Confidential\nInformation by it or its Representatives without violation of this Agreement, provided such independent development\ncan reasonably be proven by written records (“Publicly Available, Pre-Existing, and Independently Developed\nInformation”). For avoidance of doubt, and notwithstanding anything to the contrary herein or in any other Transaction\nDocument, “Confidential Information” for purposes of this Agreement does not include any information, software, data,\nanalysis or other material furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives\nunder or pursuant to the Commercial Agreement (“Commercial Agreement Confidential Information”), and except as\nset forth below in this Section 1(d), all such information will be subject to the terms and conditions of the MNDA. If any\nto the extent any Confidential Information is Commercial Agreement Confidential Information and is also Shareholder\nConfidential Information, the MNDA will govern the obligations with respect to such information, unless such\ninformation was furnished by Cloudera or its Representatives directly to Intel Capital Corporation or its Representatives,\nin which case this Agreement will govern the obligations with respect to such information. If any to the extent any\nConfidential Information is Commercial Agreement Confidential Information and is also Proposed Transaction\nInformation, then (i) to the extent such Confidential Information was furnished to Intel or its Representatives after the\ncommencement of the exchange of information in connection with a Proposed Transaction (“Proposed Transaction\nCommencement”), this Agreement shall govern the obligations with respect to such information, and (ii) to the extent\nsuch information was furnished prior to the Proposed Transaction Commencement, the MNDA will govern the\nobligations with respect to such information.\n(e)\n“Intel Designee” means any Intel employee that serves as a member of the Board and/or any\nmember of the Board that Intel is entitled to elect or designate pursuant to any agreement between Intel and the\nCompany or any of its security holders or otherwise.\n(f)\n“Investor Rights Agreement” means the amended and restated agreement among the Company,\nthe Purchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n(g)\n“MNDA” means the Mutual Non-Disclosure Agreement between Intel and Cloudera, dated as\nof January 29, 2014.\n(h)\n“Permitted Tender Offer” shall have the meaning given to such term in the Standstill\nAgreement.\n2\n(i)\n“Proposed Transaction” means a transaction in connection with (A) Negotiated Transaction\nDiscussions (as defined in the Standstill Agreement), or (B) a potential Sale or Acquisition (as defined in the Standstill\nAgreement) of Cloudera or its assets by or to Intel (or its affiliates) following a Competing Transaction (as defined in the\nStandstill Agreement).\n(j)\n“Representatives” of a person shall include such person’s directors, officers, employees, legal\ncounsel, accountants, and financial and other advisors, provided that such Representatives who are not employed by the\nreceiving party owe a duty of confidentiality to the receiving party.\n(k)\n“Right of First Refusal and Co‐Sale Agreement” means the amended and restated agreement\namong the Company, the Purchasers, and certain other stockholders of the Company, to be dated as of or on or about the\ndate hereof\n(l)\n“Sensitive Confidential Information” means any of the following subcategories of Confidential\nInformation that is furnished by Cloudera or its Representatives and received by the Intel Designee in connection with\nhis or her capacity as a member of the Board: (a) non‐public information about Cloudera’s financial condition,\nprojections, forecasts, prospects or plans; (b) non‐public information regarding Cloudera’s marketing and sales\nprograms, research and development, new product launches or initiatives, or leadership succession plans for Cloudera’s\nsenior officers; (c) non‐public information relating to possible business transactions such as mergers, acquisitions,\ndivestitures or joint ventures, or possible capital transactions such as an initial public offering or follow‐on public\noffering, credit facilities, share repurchases, dividends or stock splits; (d) non‐public information concerning other\ncompanies with whom Cloudera may conduct business, including information about Cloudera’s customers, suppliers,\njoint venture partners, or other companies with which the Company is under an obligation of confidentiality; and\n(e) non-public information about meetings, presentations and discussions relating to issues, proceedings, discussions,\ndeliberations and decisions between and among employees, officers and directors and their advisers, including the\nidentity, circumstances and fact of retention of any such advisers (including Board, committee and executive dynamics\nand relationships); provided, however, that Sensitive Confidential Information does not include Publicly Available, Pre-\nExisting, and Independently Developed Information\n(m)\n“Standstill Agreement” means that certain Right of First Notice and Standstill Agreement,\nbetween Cloudera and Intel, of even date herewith.\n(n)\n“Voting Agreement” means the amended and restated agreement among the Company, the\nPurchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n2. Confidentiality.\n(a) Intel shall, and shall cause the Intel Designee to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Board Confidential Information to third parties, and (b) not use the Board Confidential\nInformation other than in furtherance of a\n3\nBusiness Purpose (as defined below) (other than in connection with a Permitted Tender Offer); provided, however, that\nthe Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, as provided in\nSection 2(f) below, in all cases in compliance with his or her fiduciary duties to Cloudera.\n(b) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Shareholder Confidential Information to third parties; (b) not use the Shareholder\nConfidential Information for any purposes other as permitted under the Transaction Agreements (as such term is defined\nin the Series F-1 Stock Purchase Agreement dated March 21, 2014 (the “Stock Purchase Agreement”)); and (c) not\nmake any public announcement in relation to, or public comment on the fact that any Confidential Information has been\nmade available to Intel, its Affiliates or Representatives, without Cloudera’s prior written consent (unless otherwise\npermitted by Sections 4(b) or 4(c) below); provided, however, that Intel and its Representatives may disclose\nConfidential Information and facts, terms and conditions to those of its Representatives who need to know such\ninformation for the sole purpose of furthering a Business Purpose (as defined below) (other than in connection with a\nPermitted Tender Offer) if, and only if, prior to being given access to such Shareholder Confidential Information or\nbeing told such matters, such Representative is informed of the confidentiality thereof and is bound by a confidentiality\nobligation with Intel with respect to such Confidential Information.\n(c) Notwithstanding the foregoing, nothing contained in this Agreement will restrict the free movement,\nor assignment to different tasks and activities, of any employees or other permitted disclosees of Intel throughout his or\nher organization.\n(d) Nothing in this Agreement will prevent Intel or its Representatives or permitted disclosees from\nindependently developing, without use of Confidential Information, competing products or technologies, and from using,\nselling or otherwise supplying to third parties these products or technologies. Further, Intel and its permitted disclosees\nmay use Residuals (as defined below) for any purpose, including, without limitation, in the development, manufacture,\nsales, promotion, maintenance of the products of Intel; provided that this right to use Residuals does not result in or\namount to a license to Intel or its permitted disclosees under any patents, copyrights, mask works, trademarks or similar\nrights or, except as set forth in the definition of Residuals, any of Cloudera’ trade secrets, know‐how or other intellectual\nproperty rights with respect to any Confidential Information, either expressly, by implication, inducement, estoppel or\notherwise, absent a written agreement between Intel and Cloudera. The term “Residuals” means any information\nretained in the unaided memories of the employees or other permitted disclosees of the Intel or its Representatives who\nhave had access to the Confidential Information. The memory of the employees or other permitted disclosees of Intel is\nunaided if he or she did not intentionally memorize or otherwise mentally retain for reference the information for the\npurpose of retaining it and later using it or disclosing it to a third party and such employee does not know at the time of\nsuch later use that such information is the confidential information of Cloudera. Subject to the terms and conditions of\nthis Agreement, the employees and other permitted disclosees of Intel will not be restricted from using the Residuals as a\npart of his or her skill, knowledge, talent or expertise on any project.\n4\n(e) Intel shall notify Cloudera promptly upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Intel and Intel’s Representatives, and will cooperate\nwith Cloudera in every reasonable way to help Cloudera regain possession of the Confidential Information and prevent\nits further unauthorized use or disclosure.\n(f) Intel shall not seek to obtain Confidential Information from an Intel Designee that the Intel Designee\nreceives from Cloudera or its Representatives in his or her capacity as a member of the Board. Notwithstanding the\nforegoing, the Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, with\nIntel’s Representatives who need to know such Confidential Information (i) to monitor Intel’s relationship with and\ninvestment in the Company, (ii) in furtherance of the Commercial Agreement, or (iii) to evaluate and enter into\nnegotiations and execution of a transaction in connection with (A) Negotiated Transaction Discussions (as such term is\ndefined in the Standstill Agreement), (B) a potential Sale or Acquisition (as defined in the Standstill Agreement) of\nCloudera by Intel or any affiliate at a time when Intel’s obligations under the Standstill Agreement do not apply, (C) a\nPermitted Tender Offer , or (D) as required for securities law purposes (each, a “Business Purpose”); provided that, to\nthe extent Intel or its Affiliates or Representatives receive Sensitive Confidential Information despite the first sentence of\nthis Section 2(f), Intel or its Affiliates or Representatives shall not use (or disclose) such information for any purpose.\n(g) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure to third parties of (i) all Proposed Transaction Information, (ii) the fact that such Party is\nevaluating or has evaluated or considered a Proposed Transaction, (iii) the fact that discussions or negotiations are taking\nplace or have taken place relating to a Proposed Transaction, (iv) the substance of any discussions or negotiations that\ntake place regarding a Proposed Transaction, and (v) all of the terms, conditions or other facts relating to a Proposed\nTransaction; and; (b) not use the Proposed Transaction Information for any purposes other than enabling Intel to evaluate\nCloudera and enter into negotiations and execution of a Proposed Transaction (other than a Permitted Tender Offer;\nprovided, however, that Intel and its Representatives may disclose information, facts, terms and conditions identified in\nsubsections (i) through (v) above to those of its Representatives who need to know such information for the purpose of\nenabling Intel to evaluate Cloudera and enter into negotiations and execution of a Proposed Transaction (other than a\nPermitted Tender Offer.\nNotwithstanding the foregoing, in connection with a Permitted Tender Offer, Intel may use such\nConfidential Information (other than Sensitive Confidential Information). In addition, notwithstanding the foregoing, in\nconnection with a Permitted Tender Offer, Intel may disclose such Confidential Information (other than Sensitive\nConfidential Information) as Intel believes is required to conduct a tender offer under United States federal securities\nlaws.\n3. No Warranties.\nCloudera makes no express or implied representation or warranty as to the accuracy or completeness of any of\nthe information furnished to Intel or its Representatives pursuant hereto. Neither Cloudera nor any of its Representatives\nshall have any liability to Intel or its Representatives\n5\nrelating to or arising from the use of or reliance upon any information or any errors or omissions therein.\n4. Legal Requirements.\n(a) If Intel or its Representative becomes subject to a legal requirement (by subpoena, oral deposition,\ninterrogatories, request for production of documents, civil investigative demand, administrative order or otherwise) to\ndisclose any Confidential Information or any other matter required by Section 2 to be kept confidential, Intel (i) will\npromptly notify Cloudera of the existence, terms and circumstances of such requirement so that Cloudera may seek an\nappropriate protective order or waive compliance with the terms of this Agreement, and (ii) will, and will cause its\nRepresentatives to, use commercially reasonable efforts to cooperate with Cloudera in seeking a protective order or other\nassurance that confidential treatment will be accorded to the Confidential Information or other matter.\n(b) If Intel or its Representative having complied with Section 4(a) is compelled to make disclosure in\nresponse to a requirement described in Section 4(a), such person may make such disclosure without liability hereunder\nnotwithstanding the absence of a protective order or waiver of compliance hereunder; provided that (i) Intel and/or its\nRepresentative only disclose that portion of Cloudera’s Confidential Information or other matter required by Section 2 to\nbe kept confidential which Intel’s counsel advises is legally required to be disclosed, and (ii) Intel and/or its\nRepresentative exercises its commercially reasonable efforts to preserve the confidentiality of the remainder of\nCloudera’s other Confidential Information.\n(c) If Intel is advised by its legal counsel that disclosure of Cloudera’s Confidential Information or a\nmatter required by Section 2 to be kept confidential is required by applicable law, rule or regulation, including the rules\nor regulations of a national securities exchange or other exchange on which Intel’s securities are listed for trading and in\nits filings with the Securities Exchange Commission as is required under applicable federal securities laws, Intel shall\ngive notice thereof to Cloudera as promptly as practicable under the circumstances and shall disclose only such matters\nas its legal counsel advises is required by such law, rule or regulation, provided that Intel exercises its commercially\nreasonable efforts to preserve the confidentiality of Cloudera’s Confidential Information, including, without limitation,\nby cooperating with Cloudera to obtain an appropriate protective order or other assurance that confidential treatment will\nbe accorded Cloudera’s Confidential Information by any third party to which disclosure is made. If Intel complies with\nthe preceding sentence, it may make such disclosure without liability hereunder notwithstanding the absence of a\nprotective order or waiver of compliance hereunder.\n5. Destruction upon Termination of Information Rights. All Confidential Information shall be and remain the\nproperty of Cloudera. All Confidential Information, whether in hard copy form or intangible media such as electronic\nmail or computer files, shall be returned to Cloudera or destroyed and no copies shall be retained by Intel or its\nRepresentatives: (a) with respect to all Confidential Information, immediately upon Cloudera’s request following: (i) a\nCompetitor Investment (as such term is defined in the Investor Rights Agreement); (ii) after Intel no longer holds at least\n13% of the securities in Cloudera (as adjusted for stock splits, reverse stock splits and the like) (as defined therein) on\nthe Closing Date (as defined therein); provided, further, that\n6\nin the case of both (i) and (ii), Intel and its Representatives in its or their accounting and financial reporting function\nshall be entitled to retain Confidential Information that is necessary for reporting purposes, including Intel’s unaudited\nquarterly financial reporting and Intel financial statement reporting in accordance with GAAP and for audit purposes,\nwhether internal audits or with respect to Intel’s independent public accountants, so long as such retained Confidential\nInformation is used only for the purpose described in this proviso; and (b) with respect to all Proposed Transaction\nInformation, immediately upon Cloudera’s request, which request shall not be made during the Waiting Period (as\ndefined in the Standstill Agreement), unless Intel has notified Cloudera that it has determined that it does not desire or\nintend to continue Negotiated Transaction Discussions or a potential Sale or Acquisition of Cloudera by Intel; provided,\nhowever, that, notwithstanding the foregoing, any portion of the Confidential Information that consists of reports,\nanalyses, compilations, data, studies or other documents developed or prepared by or for Intel or its Representatives that\ninclude, incorporate, refer to, reflect or are based in whole or in part on any Confidential Information will be destroyed\nimmediately upon such request; provided further that any such destruction of such information shall be certified in\nwriting to Cloudera. Notwithstanding the return or destruction of the Confidential Information, Intel and its\nRepresentatives will continue to be bound by its obligations of confidentiality, non-use and other obligations hereunder.\n6. Intel Representatives. Intel will be responsible for any breach of this Agreement by the Intel Designee with\nrespect to the Board Confidential Information or by its Representatives with respect to any Confidential Information, and\nagrees, at its sole expense, to take reasonable measures, at such time as it becomes aware of an imminent breach of the\nconfidentiality restrictions by one of its Representatives, to restrain such Representative from prohibited or unauthorized\ndisclosure or use of such Confidential Information.\n7. Compliance with Insider Trading and Public Disclosure Laws. Intel acknowledges that Intel may become\naware of material, nonpublic information concerning Cloudera. Intel acknowledges that the United States securities laws\nprohibit any person who has material, nonpublic information concerning a company whose securities are publicly traded\nfrom purchasing or selling securities of that company or disclosing such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nAccordingly, for so long as Intel holds material, nonpublic information concerning Cloudera, Intel agrees to take\nreasonable precautions to prevent any trading in the securities of Cloudera, including by Intel’s Affiliates and\nRepresentatives, while in possession of material, nonpublic information.\n8. Disclaimer of Corporation Opportunity. Cloudera acknowledges that Intel may have, from time to time,\ninformation that may be of interest to the Cloudera (“Intel Information”) including, by way of example only, (a) Intel’s\ntechnologies, plans and services, (b) current and future investments Intel has made, may make, may consider or may\nbecome aware of with respect to other companies and other technologies, products and services, including, without\nlimitation, technologies, products and services that may be competitive with those of Cloudera, and (c) developments\nwith respect to the technologies, products and services, and plans and strategies relating thereto, of other companies,\nincluding, without limitation, companies that may be competitive with Cloudera; provided, that for the avoidance of\ndoubt Intel Information shall not include any Confidential Information provided by Cloudera to Intel or its\nRepresentatives hereunder\n7\nor that the Intel Designee receives in his or her capacity as a member of the Board. Cloudera, as a material part of the\nconsideration for this Agreement and the transactions contemplated by the Transaction Agreements (as defined in the\nStock Purchase Agreement), agrees that Intel and the Intel Designee shall have no duty to disclose any Intel Information\nto Cloudera or permit Cloudera to participate in any projects or investments based on any Intel Information, or to\notherwise take advantage of any opportunity that may be of interest to Cloudera if it were aware of such Intel\nInformation, and hereby waives, to the extent permitted by law, any claim based on the corporate opportunity doctrine or\notherwise that could limit Intel’s ability to pursue opportunities based on such Intel Information or that would require\nIntel or the Intel Designee to disclose any such Information to Cloudera or offer any opportunity relating thereto to\nCloudera.\n10. Miscellaneous.\n(a)\nPower and Authority. Each Party hereby represents that it has the power and authority\n(corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement\nconstitutes a valid and binding agreement of such Party, enforceable in accordance with its terms.\n(b)\nCosts and Expenses; Remedies. Each of the Parties will bear its own costs and expenses,\nincluding legal fees and fees of other advisors, with respect to any action to enforce its rights under this Agreement by\nlegal proceedings. It is understood and agreed that money damages would not be a sufficient remedy for any breach of\nthis Agreement and that the non‐breaching Party shall be entitled to injunctive relief. Such remedy shall not be deemed\nto be the exclusive remedy for the breach of this Agreement but shall be in addition to all other remedies available at law\nor in equity.\n(c)\nDelays or Omissions; Modification. No delay or omission to exercise any right, power, or\nremedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement,\nnor any partial exercise thereof, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting\nparty, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach\nor default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise\nafforded to any party, shall be cumulative and not alternative. No modification of this Agreement, termination or waiver\nof the terms and conditions hereof shall be binding upon either Party hereto, unless approved in writing by each such\nparty.\n(d)\nCounterparts; Facsimile. This Agreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original, but all of which together shall constitute one and the same instrument. This\nAgreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which\nshall be deemed an original, but all of which together shall constitute one and the same instrument\n(e)\nTitles and Subtitles. The titles and subtitles used in this Agreement are for convenience only\nand are not to be considered in construing or interpreting this Agreement\n8\n(f)\nNotices. All notices and other communications given or made pursuant to this Agreement shall\nbe in writing and shall be deemed effectively delivered upon the earlier of actual receipt or: (i) personal delivery to the\nparty to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours,\nand if not sent during normal business hours, then on the recipient’s next business day; (iii) five (5) days after having\nbeen sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the\nbusiness day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next day delivery, with\nwritten verification of receipt. If notice is sent to Intel, it shall be sent to Intel Corporation, c/o Intel Capital Corporation,\nAttn: Intel Capital Portfolio Manager, 2200 Mission College Blvd, M/S RN6-59, Santa Clara, CA 95054, with a copy,\nwhich shall not constitute notice, by e-mail to: portfolio.manager@intel.com. If notice is given to Cloudera, it shall be\nsent to 1001 Page Mill Road, Building 2, Palo Alto, CA 94304, Attention: Chief Executive Officer; and a copy (which\nshall not constitute notice) shall also be given to Fenwick & West LLP, 801 California Street, Mountain View,\nCA 94041, Attn: David A. Bell.\n(g)\nSeverability. In case any one or more of the provisions contained in this Agreement is for any\nreason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not\naffect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and\nconstrued so that it will be valid, legal, and enforceable to the maximum extent permitted by law.\n(h)\nEntire Agreement. This Agreement constitutes the full and entire understanding and agreement\namong the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the\nsubject matter hereof existing between the parties is expressly canceled. For avoidance of doubt, and notwithstanding\nanything to the contrary herein or in any other Transaction Document, information, software, data, analysis and other\nmaterial furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives under or pursuant to\nthe Commercial Agreement will be subject to the terms and conditions of the MNDA and will not be subject to the terms\nof this Agreement (regardless of whether the same information, software, data, analysis or other material may also have\nbeen furnished under or pursuant to this Agreement or one or more of the Transaction Documents).\n(i)\nGoverning Law. This agreement shall be governed in all respects, including without limitation\nvalidity, interpretation and effect, by the laws of the state of Delaware applicable to contracts executed and to be\nperformed wholly within such state without giving effect to the choice of law principles of such state.\n(j)\nDispute Resolution. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of\nthe parties hereto (a) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery or, to the\nextent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other federal or state courts\nof the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this\nAgreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for\nleave from any such court, (c) agrees that it shall not bring any action relating\n9\nto this Agreement or the transactions contemplated by this Agreement in any court other than the Delaware Court of\nChancery or, to the extent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other\nfederal or state courts of the State of Delaware, and (d) each of the parties irrevocably consents to service of process by a\nreputable overnight mail delivery service, signature requested, to the address set forth in Section 10(f) of this Agreement\nor as otherwise provided by applicable law.\n(k)\nSuccessors and Assigns; No Third Party Beneficiaries. The terms and conditions of this\nAgreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the Parties.\nNothing in this Agreement, express or implied, is intended to confer upon either Party other than the parties hereto or\ntheir respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of\nthis Agreement, except as expressly provided herein.\n[Signatures Follow]\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy: /s/ Tom Reilly\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy:\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy:\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy: /s/ Cary Klafter\nCary Klafter\nCorporate Secretary\n12	EX-4.04 5 s-1exhibit404.htm EXHIBIT 4.04\nExhibit 4.04\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is entered into as of March 21, 2014 (the “Effective Date”)\nby and between Intel Corporation (“Intel”’) and Cloudera, Inc. (“Cloudera,” and, together with Intel, each a “Party” or\ntogether the “Parties”).\nWHEREAS, Cloudera may provide certain confidential information (i) to Intel as a result of its notice,\ninformation and inspection rights as a shareholder of Cloudera and in connection with negotiating Proposed Transactions\n(as defined below) (as set forth in more detail below) and (ii) to the Intel Designee (as defined below).\nWHEREAS, any confidential information provided to or disclosed by either party pursuant to the terms of the\nCommercial Agreement will be governed by the terms of the MNDA and not this Agreement.\nNOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, the Parties\nintending to be legally bound agree as follows:\n1. Definitions. For the purposes of this Agreement, the following terms have the following meanings:\n(a) “Affiliate” of a person shall include any person that, directly or indirectly, controls, is\ncontrolled by or is under common control with such person. The term “control” means the possession of the power,\ndirectly or indirectly, to direct or cause the direction of the management and affairs of a person.\n(b) “Board” means the Board of Directors of Cloudera.\n(0) “Commercial Agreement” means that certain Collaboration and Optimization Agreement,\nbetween the Parties, dated as of March 21, 2014.\n(d) “Confidential Information” shall mean all information, software, data and analysis (including\nwithout limitation information in tangible or intangible form relating to and/or including released or unreleased products\nand services (including without limitation any product or service names, titles, designs, ideas, concepts, scripts and\nschedules), the marketing or promotion of any product, business policies or practices, business plans and forecasts,\npotential transactions and business combinations and information received from others that Cloudera is obligated to treat\nas confidential) in each case that is furnished by Cloudera or its Representatives, and provided to (i) the Intel Designee\nby reason of his or her position as a member of the Board (the “Board Confidential Information”), (ii) Intel or its\nRepresentatives in the form of non-public information received pursuant to the Investor Rights Agreement, the Right of\nFirst Refusal and Co-Sale Agreement, or the Voting Agreement, or pursuant to shareholder information or inspection\nrights under applicable law ( the “Shareholder Confidential Information”), or (iii) to Intel or its Representatives\npursuant to the Standstill Agreement in order to enable Intel to evaluate Cloudera and enter into negotiations and\nexecution of a Proposed Transaction (“Proposed Transaction Information”) shall be considered Confidential\nInformation, as well as any analyses, compilations,\nstudies, documents or other material, regardless of the form thereof, prepared by Intel or its Representatives containing\nor based in whole or in part upon such information, software, data or analysis. Confidential Information does not include\ninformation, software, data or analysis that: (A) is when furnished or thereafter becomes publicly available other than as\na result of a disclosure by Intel or its Representatives in violation of this Agreement, (B) is already in the possession of\nor becomes available to Intel or its Representatives on a non-confidential basis from a source other than Cloudera or its\nRepresentatives, provided that, to Intel’s knowledge, such source is not and was not bound by an obligation of\nconfidentiality to Cloudera, its Representatives or any other party with regard to such information, software, data or\nanalysis, or (C) Intel can demonstrate was independently developed without use of or reference to Confidential\nInformation by it or its Representatives without violation of this Agreement, provided such independent development\ncan reasonably be proven by written records (“Publicly Available, Pre-Existing, and Independently Developed\nInformation”). For avoidance of doubt, and notwithstanding anything to the contrary herein or in any other Transaction\nDocument, “Confidential Information” for purposes of this Agreement does not include any information, software, data,\nanalysis or other material furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives\nunder or pursuant to the Commercial Agreement (“Commercial Agreement Confidential Information™), and except as\nset forth below in this Section 1(d), all such information will be subject to the terms and conditions of the MNDA. If any\nto the extent any Confidential Information is Commercial Agreement Confidential Information and is also Shareholder\nConfidential Information, the MNDA will govern the obligations with respect to such information, unless such\ninformation was furnished by Cloudera or its Representatives directly to Intel Capital Corporation or its Representatives,\nin which case this Agreement will govern the obligations with respect to such information. If any to the extent any\nConfidential Information is Commercial Agreement Confidential Information and is also Proposed Transaction\nInformation, then (i) to the extent such Confidential Information was furnished to Intel or its Representatives after the\ncommencement of the exchange of information in connection with a Proposed Transaction (“Proposed Transaction\nCommencement”), this Agreement shall govern the obligations with respect to such information, and (ii) to the extent\nsuch information was furnished prior to the Proposed Transaction Commencement, the MNDA will govern the\nobligations with respect to such information.\n(e) “Intel Designee” means any Intel employee that serves as a member of the Board and/or any\nmember of the Board that Intel is entitled to elect or designate pursuant to any agreement between Intel and the\nCompany or any of its security holders or otherwise.\nH “Investor Rights Agreement” means the amended and restated agreement among the Company,\nthe Purchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n() “MNDA” means the Mutual Non-Disclosure Agreement between Intel and Cloudera, dated as\nof January 29, 2014.\n(h) “Permitted Tender Offer” shall have the meaning given to such term in the Standstill\nAgreement.\n1) “Proposed Transaction” means a transaction in connection with (A) Negotiated Transaction\nDiscussions (as defined in the Standstill Agreement), or (B) a potential Sale or Acquisition (as defined in the Standstill\nAgreement) of Cloudera or its assets by or to Intel (or its affiliates) following a Competing Transaction (as defined in the\nStandstill Agreement).\nG “Representatives” of a person shall include such person’s directors, officers, employees, legal\ncounsel, accountants, and financial and other advisors, provided that such Representatives who are not employed by the\nreceiving party owe a duty of confidentiality to the receiving party.\n(k) “Right of First Refusal and Co-Sale Agreement” means the amended and restated agreement\namong the Company, the Purchasers, and certain other stockholders of the Company, to be dated as of or on or about the\ndate hereof\nO “Sensitive Confidential Information” means any of the following subcategories of Confidential\nInformation that is furnished by Cloudera or its Representatives and received by the Intel Designee in connection with\nhis or her capacity as a member of the Board: (a) non-public information about Cloudera’s financial condition,\nprojections, forecasts, prospects or plans; (b) non-public information regarding Cloudera’s marketing and sales\nprograms, research and development, new product launches or initiatives, or leadership succession plans for Cloudera’s\nsenior officers; (c) non-public information relating to possible business transactions such as mergers, acquisitions,\ndivestitures or joint ventures, or possible capital transactions such as an initial public offering or follow-on public\noffering, credit facilities, share repurchases, dividends or stock splits; (d) non-public information concerning other\ncompanies with whom Cloudera may conduct business, including information about Cloudera’s customers, suppliers,\njoint venture partners, or other companies with which the Company is under an obligation of confidentiality; and\n(e) non-public information about meetings, presentations and discussions relating to issues, proceedings, discussions,\ndeliberations and decisions between and among employees, officers and directors and their advisers, including the\nidentity, circumstances and fact of retention of any such advisers (including Board, committee and executive dynamics\nand relationships); provided, however, that Sensitive Confidential Information does not include Publicly Available, Pre-\nExisting, and Independently Developed Information\n(m) “Standstill Agreement” means that certain Right of First Notice and Standstill Agreement,\nbetween Cloudera and Intel, of even date herewith.\n(n) “Voting Agreement” means the amended and restated agreement among the Company, the\nPurchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n2. Confidentiality.\n(@) Intel shall, and shall cause the Intel Designee to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Board Confidential Information to third parties, and (b) not use the Board Confidential\nInformation other than in furtherance of a\nBusiness Purpose (as defined below) (other than in connection with a Permitted Tender Offer); provided, however, that\nthe Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, as provided in\nSection 2(f) below, in all cases in compliance with his or her fiduciary duties to Cloudera.\n(b) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Shareholder Confidential Information to third parties; (b) not use the Shareholder\nConfidential Information for any purposes other as permitted under the Transaction Agreements (as such term is defined\nin the Series F-1 Stock Purchase Agreement dated March 21, 2014 (the “Stock Purchase Agreement”)); and (c) not\nmake any public announcement in relation to, or public comment on the fact that any Confidential Information has been\nmade available to Intel, its Affiliates or Representatives, without Cloudera’s prior written consent (unless otherwise\npermitted by Sections 4(b) or 4(c) below); provided, however, that Intel and its Representatives may disclose\nConfidential Information and facts, terms and conditions to those of its Representatives who need to know such\ninformation for the sole purpose of furthering a Business Purpose (as defined below) (other than in connection with a\nPermitted Tender Offer) if, and only if, prior to being given access to such Shareholder Confidential Information or\nbeing told such matters, such Representative is informed of the confidentiality thereof and is bound by a confidentiality\nobligation with Intel with respect to such Confidential Information.\n(c) Notwithstanding the foregoing, nothing contained in this Agreement will restrict the free movement,\nor assignment to different tasks and activities, of any employees or other permitted disclosees of Intel throughout his or\nher organization.\n(d) Nothing in this Agreement will prevent Intel or its Representatives or permitted disclosees from\nindependently developing, without use of Confidential Information, competing products or technologies, and from using,\nselling or otherwise supplying to third parties these products or technologies. Further, Intel and its permitted disclosees\nmay use Residuals (as defined below) for any purpose, including, without limitation, in the development, manufacture,\nsales, promotion, maintenance of the products of Intel; provided that this right to use Residuals does not result in or\namount to a license to Intel or its permitted disclosees under any patents, copyrights, mask works, trademarks or similar\nrights or, except as set forth in the definition of Residuals, any of Cloudera’ trade secrets, know-how or other intellectual\nproperty rights with respect to any Confidential Information, either expressly, by implication, inducement, estoppel or\notherwise, absent a written agreement between Intel and Cloudera. The term “Residuals” means any information\nretained in the unaided memories of the employees or other permitted disclosees of the Intel or its Representatives who\nhave had access to the Confidential Information. The memory of the employees or other permitted disclosees of Intel is\nunaided if he or she did not intentionally memorize or otherwise mentally retain for reference the information for the\npurpose of retaining it and later using it or disclosing it to a third party and such employee does not know at the time of\nsuch later use that such information is the confidential information of Cloudera. Subject to the terms and conditions of\nthis Agreement, the employees and other permitted disclosees of Intel will not be restricted from using the Residuals as a\npart of his or her skill, knowledge, talent or expertise on any project.\n(e) Intel shall notify Cloudera promptly upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Intel and Intel’s Representatives, and will cooperate\nwith Cloudera in every reasonable way to help Cloudera regain possession of the Confidential Information and prevent\nits further unauthorized use or disclosure.\n(f) Intel shall not seek to obtain Confidential Information from an Intel Designee that the Intel Designee\nreceives from Cloudera or its Representatives in his or her capacity as a member of the Board. Notwithstanding the\nforegoing, the Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, with\nIntel’s Representatives who need to know such Confidential Information (i) to monitor Intel’s relationship with and\ninvestment in the Company, (ii) in furtherance of the Commercial Agreement, or (iii) to evaluate and enter into\nnegotiations and execution of a transaction in connection with (A) Negotiated Transaction Discussions (as such term is\ndefined in the Standstill Agreement), (B) a potential Sale or Acquisition (as defined in the Standstill Agreement) of\nCloudera by Intel or any affiliate at a time when Intel’s obligations under the Standstill Agreement do not apply, (C) a\nPermitted Tender Offer , or (D) as required for securities law purposes (each, a “Business Purpose”); provided that, to\nthe extent Intel or its Affiliates or Representatives receive Sensitive Confidential Information despite the first sentence of\nthis Section 2(f), Intel or its Affiliates or Representatives shall not use (or disclose) such information for any purpose.\n(g) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure to third parties of (i) all Proposed Transaction Information, (ii) the fact that such Party is\nevaluating or has evaluated or considered a Proposed Transaction, (iii) the fact that discussions or negotiations are taking\nplace or have taken place relating to a Proposed Transaction, (iv) the substance of any discussions or negotiations that\ntake place regarding a Proposed Transaction, and (v) all of the terms, conditions or other facts relating to a Proposed\nTransaction; and; (b) not use the Proposed Transaction Information for any purposes other than enabling Intel to evaluate\nCloudera and enter into negotiations and execution of a Proposed Transaction (other than a Permitted Tender Offer;\nprovided, however, that Intel and its Representatives may disclose information, facts, terms and conditions identified in\nsubsections (i) through (v) above to those of its Representatives who need to know such information for the purpose of\nenabling Intel to evaluate Cloudera and enter into negotiations and execution of a Proposed Transaction (other than a\nPermitted Tender Offer.\nNotwithstanding the foregoing, in connection with a Permitted Tender Offer, Intel may use such\nConfidential Information (other than Sensitive Confidential Information). In addition, notwithstanding the foregoing, in\nconnection with a Permitted Tender Offer, Intel may disclose such Confidential Information (other than Sensitive\nConfidential Information) as Intel believes is required to conduct a tender offer under United States federal securities\nlaws.\n3. No Warranties.\nCloudera makes no express or implied representation or warranty as to the accuracy or completeness of any of\nthe information furnished to Intel or its Representatives pursuant hereto. Neither Cloudera nor any of its Representatives\nshall have any liability to Intel or its Representatives\nrelating to or arising from the use of or reliance upon any information or any errors or omissions therein.\n4. Legal Requirements.\n(a) If Intel or its Representative becomes subject to a legal requirement (by subpoena, oral deposition,\ninterrogatories, request for production of documents, civil investigative demand, administrative order or otherwise) to\ndisclose any Confidential Information or any other matter required by Section 2 to be kept confidential, Intel (i) will\npromptly notify Cloudera of the existence, terms and circumstances of such requirement so that Cloudera may seek an\nappropriate protective order or waive compliance with the terms of this Agreement, and (ii) will, and will cause its\nRepresentatives to, use commercially reasonable efforts to cooperate with Cloudera in seeking a protective order or other\nassurance that confidential treatment will be accorded to the Confidential Information or other matter.\n(b) If Intel or its Representative having complied with Section 4(a) is compelled to make disclosure in\nresponse to a requirement described in Section 4(a), such person may make such disclosure without liability hereunder\nnotwithstanding the absence of a protective order or waiver of compliance hereunder; provided that (i) Intel and/or its\nRepresentative only disclose that portion of Cloudera’s Confidential Information or other matter required by Section 2 to\nbe kept confidential which Intel’s counsel advises is legally required to be disclosed, and (ii) Intel and/or its\nRepresentative exercises its commercially reasonable efforts to preserve the confidentiality of the remainder of\nCloudera’s other Confidential Information.\n(c) If Intel is advised by its legal counsel that disclosure of Cloudera’s Confidential Information or a\nmatter required by Section 2 to be kept confidential is required by applicable law, rule or regulation, including the rules\nor regulations of a national securities exchange or other exchange on which Intel’s securities are listed for trading and in\nits filings with the Securities Exchange Commission as is required under applicable federal securities laws, Intel shall\ngive notice thereof to Cloudera as promptly as practicable under the circumstances and shall disclose only such matters\nas its legal counsel advises is required by such law, rule or regulation, provided that Intel exercises its commercially\nreasonable efforts to preserve the confidentiality of Cloudera’s Confidential Information, including, without limitation,\nby cooperating with Cloudera to obtain an appropriate protective order or other assurance that confidential treatment will\nbe accorded Cloudera’s Confidential Information by any third party to which disclosure is made. If Intel complies with\nthe preceding sentence, it may make such disclosure without liability hereunder notwithstanding the absence of a\nprotective order or waiver of compliance hereunder.\n5. Destruction upon Termination of Information Rights. All Confidential Information shall be and remain the\nproperty of Cloudera. All Confidential Information, whether in hard copy form or intangible media such as electronic\nmail or computer files, shall be returned to Cloudera or destroyed and no copies shall be retained by Intel or its\nRepresentatives: (a) with respect to all Confidential Information, immediately upon Cloudera’s request following: (i) a\nCompetitor Investment (as such term is defined in the Investor Rights Agreement); (ii) after Intel no longer holds at least\n13% of the securities in Cloudera (as adjusted for stock splits, reverse stock splits and the like) (as defined therein) on\nthe Closing Date (as defined therein); provided, further, that\nin the case of both (i) and (ii), Intel and its Representatives in its or their accounting and financial reporting function\nshall be entitled to retain Confidential Information that is necessary for reporting purposes, including Intel’s unaudited\nquarterly financial reporting and Intel financial statement reporting in accordance with GAAP and for audit purposes,\nwhether internal audits or with respect to Intel’s independent public accountants, so long as such retained Confidential\nInformation is used only for the purpose described in this proviso; and (b) with respect to all Proposed Transaction\nInformation, immediately upon Cloudera’s request, which request shall not be made during the Waiting Period (as\ndefined in the Standstill Agreement), unless Intel has notified Cloudera that it has determined that it does not desire or\nintend to continue Negotiated Transaction Discussions or a potential Sale or Acquisition of Cloudera by Intel; provided,\nhowever, that, notwithstanding the foregoing, any portion of the Confidential Information that consists of reports,\nanalyses, compilations, data, studies or other documents developed or prepared by or for Intel or its Representatives that\ninclude, incorporate, refer to, reflect or are based in whole or in part on any Confidential Information will be destroyed\nimmediately upon such request; provided further that any such destruction of such information shall be certified in\nwriting to Cloudera. Notwithstanding the return or destruction of the Confidential Information, Intel and its\nRepresentatives will continue to be bound by its obligations of confidentiality, non-use and other obligations hereunder.\n6. Intel Representatives. Intel will be responsible for any breach of this Agreement by the Intel Designee with\nrespect to the Board Confidential Information or by its Representatives with respect to any Confidential Information, and\nagrees, at its sole expense, to take reasonable measures, at such time as it becomes aware of an imminent breach of the\nconfidentiality restrictions by one of its Representatives, to restrain such Representative from prohibited or unauthorized\ndisclosure or use of such Confidential Information.\n7.  Compliance with Insider Trading and Public Disclosure Laws. Intel acknowledges that Intel may become\naware of material, nonpublic information concerning Cloudera. Intel acknowledges that the United States securities laws\nprohibit any person who has material, nonpublic information concerning a company whose securities are publicly traded\nfrom purchasing or selling securities of that company or disclosing such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nAccordingly, for so long as Intel holds material, nonpublic information concerning Cloudera, Intel agrees to take\nreasonable precautions to prevent any trading in the securities of Cloudera, including by Intel’s Affiliates and\nRepresentatives, while in possession of material, nonpublic information.\ninformation that may be of interest to the Cloudera (“Intel Information™) including, by way of example only, (a) Intel’s\ntechnologies, plans and services, (b) current and future investments Intel has made, may make, may consider or may\nbecome aware of with respect to other companies and other technologies, products and services, including, without\nlimitation, technologies, products and services that may be competitive with those of Cloudera, and (c) developments\nwith respect to the technologies, products and services, and plans and strategies relating thereto, of other companies,\nincluding, without limitation, companies that may be competitive with Cloudera; provided, that for the avoidance of\ndoubt Intel Information shall not include any Confidential Information provided by Cloudera to Intel or its\nRepresentatives hereunder\n8.  Disclaimer of Corporation Opportunity. Cloudera acknowledges that Intel may have, from time to time,\nor that the Intel Designee receives in his or her capacity as a member of the Board. Cloudera, as a material part of the\nconsideration for this Agreement and the transactions contemplated by the Transaction Agreements (as defined in the\nStock Purchase Agreement), agrees that Intel and the Intel Designee shall have no duty to disclose any Intel Information\nto Cloudera or permit Cloudera to participate in any projects or investments based on any Intel Information, or to\notherwise take advantage of any opportunity that may be of interest to Cloudera if it were aware of such Intel\nInformation, and hereby waives, to the extent permitted by law, any claim based on the corporate opportunity doctrine or\notherwise that could limit Intel’s ability to pursue opportunities based on such Intel Information or that would require\nIntel or the Intel Designee to disclose any such Information to Cloudera or offer any opportunity relating thereto to\nCloudera.\n10. Miscellaneous.\n(a) Power and Authority. Each Party hereby represents that it has the power and authority\n(corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement\nconstitutes a valid and binding agreement of such Party, enforceable in accordance with its terms.\nCosts and Expenses;_Remedies. Each of the Parties will bear its own costs and expenses,\nincluding legal fees and fees of other advisors, with respect to any action to enforce its rights under this Agreement by\nlegal proceedings. It is understood and agreed that money damages would not be a sufficient remedy for any breach of\nthis Agreement and that the non-breaching Party shall be entitled to injunctive relief. Such remedy shall not be deemed\nto be the exclusive remedy for the breach of this Agreement but shall be in addition to all other remedies available at law\nor in equity.\n \n() Delays or Omissions;_Modification. No delay or omission to exercise any right, power, or\nremedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement,\nnor any partial exercise thereof, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting\nparty, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach\nor default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise\nafforded to any party, shall be cumulative and not alternative. No modification of this Agreement, termination or waiver\nof the terms and conditions hereof shall be binding upon either Party hereto, unless approved in writing by each such\nparty.\n(d) Counterparts; Facsimile. This Agreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original, but all of which together shall constitute one and the same instrument. This\nAgreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which\nshall be deemed an original, but all of which together shall constitute one and the same instrument\n(e) Titles and Subtitles. The titles and subtitles used in this Agreement are for convenience only\nand are not to be considered in construing or interpreting this Agreement\nH Notices. All notices and other communications given or made pursuant to this Agreement shall\nbe in writing and shall be deemed effectively delivered upon the earlier of actual receipt or: (i) personal delivery to the\nparty to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours,\nand if not sent during normal business hours, then on the recipient’s next business day; (iii) five (5) days after having\nbeen sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the\nbusiness day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next day delivery, with\nwritten verification of receipt. If notice is sent to Intel, it shall be sent to Intel Corporation, c/o Intel Capital Corporation,\nAttn: Intel Capital Portfolio Manager, 2200 Mission College Blvd, M/S RN6-59, Santa Clara, CA 95054, with a copy,\nwhich shall not constitute notice, by e-mail to: portfolio.manager@intel.com. If notice is given to Cloudera, it shall be\nsent to 1001 Page Mill Road, Building 2, Palo Alto, CA 94304, Attention: Chief Executive Officer; and a copy (which\nshall not constitute notice) shall also be given to Fenwick & West LLP, 801 California Street, Mountain View,\nCA 94041, Attn: David A. Bell.\ng) Severability. In case any one or more of the provisions contained in this Agreement is for any\nreason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not\naffect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and\nconstrued so that it will be valid, legal, and enforceable to the maximum extent permitted by law.\n(h) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement\namong the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the\nsubject matter hereof existing between the parties is expressly canceled. For avoidance of doubt, and notwithstanding\nanything to the contrary herein or in any other Transaction Document, information, software, data, analysis and other\nmaterial furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives under or pursuant to\nthe Commercial Agreement will be subject to the terms and conditions of the MNDA and will not be subject to the terms\nof this Agreement (regardless of whether the same information, software, data, analysis or other material may also have\nbeen furnished under or pursuant to this Agreement or one or more of the Transaction Documents).\n1) Governing Law. This agreement shall be governed in all respects, including without limitation\nvalidity, interpretation and effect, by the laws of the state of Delaware applicable to contracts executed and to be\nperformed wholly within such state without giving effect to the choice of law principles of such state.\nDispute Resolution. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of\nthe parties hereto (a) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery or, to the\nextent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other federal or state courts\nof the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this\nAgreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for\nleave from any such court, (c) agrees that it shall not bring any action relating\nto this Agreement or the transactions contemplated by this Agreement in any court other than the Delaware Court of\nChancery or, to the extent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other\nfederal or state courts of the State of Delaware, and (d) each of the parties irrevocably consents to service of process by a\nreputable overnight mail delivery service, signature requested, to the address set forth in Section 10(f) of this Agreement\nor as otherwise provided by applicable law.\nk) Successors and Assigns;_ No Third Party Beneficiaries. The terms and conditions of this\nAgreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the Parties.\nNothing in this Agreement, express or implied, is intended to confer upon either Party other than the parties hereto or\ntheir respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of\nthis Agreement, except as expressly provided herein.\n[Signatures Follow]\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy: /s/ Tom Reilly\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy:\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. 12\nCLOUDERA, INC.\nBy:\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy: /s/ Cary Klafter\nCary Klafter\nCorporate Secretary	EX-4.04 s-1exhibit404.htm EXHIBIT 4.04\nExhibit 4.04\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the "Agreement") is entered into as of March 21, 2014 (the "Effective Date")\nby and between Intel Corporation ("Intel") and Cloudera, Inc. ("Cloudera," and, together with Intel, each a "Party" or\ntogether the "Parties").\nWHEREAS, Cloudera may provide certain confidential information (i) to Intel as a result of its notice,\ninformation and inspection rights as a shareholder of Cloudera and in connection with negotiating Proposed Transactions\n(as defined below) (as set forth in more detail below) and (ii) to the Intel Designee (as defined below).\nWHEREAS, any confidential information provided to or disclosed by either party pursuant to the terms of the\nCommercial Agreement will be governed by the terms of the MNDA and not this Agreement.\nNOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, the Parties\nintending to be legally bound agree as follows:\n1. Definitions. For the purposes of this Agreement, the following terms have the following meanings:\n(a)\n"Affiliate" of a person shall include any person that, directly or indirectly, controls, is\ncontrolled by or is under common control with such person. The term "control" means the possession of the power,\ndirectly or indirectly, to direct or cause the direction of the management and affairs of a person.\n(b)\n"Board" means the Board of Directors of Cloudera.\n(c)\n"Commercial Agreement" means that certain Collaboration and Optimization Agreement,\nbetween the Parties, dated as of March 21, 2014.\n(d)\n"Confidential Information" shall mean all information, software, data and analysis (including\nwithout limitation information in tangible or intangible form relating to and/or including released or unreleased products\nand services (including without limitation any product or service names, titles, designs, ideas, concepts, scripts\nand\nschedules), the marketing or promotion of any product, business policies or practices, business plans and forecasts,\npotential transactions and business combinations and information received from others that Cloudera is obligated to treat\nas confidential) in each case that is furnished by Cloudera or its Representatives, and provided to (i) the Intel Designee\nby reason of his or her position as a member of the Board (the "Board Confidential Information"), (ii) Intel or its\nRepresentatives in the form of non-public information received pursuant to the Investor Rights Agreement, the Right of\nFirst Refusal and Co-Sale Agreement, or the Voting Agreement, or pursuant to shareholder information or inspection\nrights under applicable law C the "Shareholder Confidential Information") or (iii) to Intel or its Representatives\npursuant\nto\nthe\nStandstill\nAgreement\nin\norder\nto\nenable\nIntel\nto\nevaluate\nCloudera\nand\nenter\ninto\nnegotiations\nand\nexecution of a Proposed Transaction ("Proposed Transaction Information") shall be considered Confidential\nInformation, as well as any analyses, compilations,\nstudies, documents or other material, regardless of the form thereof, prepared by Intel or its Representatives containing\nor based in whole or in part upon such information, software, data or analysis. Confidential Information does not include\ninformation, software, data or analysis that: (A) is when furnished or thereafter becomes publicly available other than as\na\nresult\nof\na\ndisclosure\nby\nIntel\nor\nits\nRepresentatives\nin\nviolation\nof\nthis\nAgreement,\n(B)\nis\nalready\nin\nthe\npossession\nof\nor\nbecomes available to Intel or its Representatives on a non-confidential basis from a source other than Cloudera or its\nRepresentatives, provided that, to Intel's knowledge, such source is not and was not bound by an obligation of\nconfidentiality to Cloudera, its Representatives or any other party with regard to such information,\nsoftware,\ndata\nor\nanalysis, or (C) Intel can demonstrate was independently developed without use of or reference to Confidential\nInformation by it or its Representatives without violation of this Agreement, provided such independent development\ncan\nreasonably\nbe\nproven\nby\nwritten\nrecords\n("Publicly\nAvailable,\nPre-Existing,\nand\nIndependently\nDeveloped\nInformation") Document, "Confidential For avoidance Information" of doubt, for and purposes notwithstanding of this Agreement anything to does the not contrary include herein any information, or in any other software, Transaction data,\nanalysis or other material furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives\nunder or pursuant to the Commercial Agreement ("Commercial Agreement Confidential Information"), and except as\nset forth below in this Section 1(d), all such information will be subject to the terms and conditions of the MNDA. If any\nto the extent any Confidential Information is Commercial Agreement Confidential Information and is also Shareholder\nConfidential Information, the MNDA will govern the obligations with respect to such information, unless such\ninformation was furnished by Cloudera or its Representatives directly to Intel Capital Corporation or its Representatives\nin which case this Agreement will govern the obligations with respect to such information. If any to the extent any\nConfidential Information is Commercial Agreement Confidential Information and is also Proposed Transaction\nInformation, then (i) to the extent such Confidential Information was furnished to Intel or its Representatives after the\ncommencement of the exchange of information in connection with a Proposed Transaction ("Proposed Transaction\nCommencement"), this Agreement shall govern the obligations with respect to such information, and (ii) to the extent\nsuch information was furnished prior to the Proposed Transaction Commencement, the MNDA will govern the\nobligations with respect to such information.\n(e)\n"Intel Designee" means any Intel employee that serves as a member of the Board and/or any\nmember of the Board that Intel is entitled to elect or designate pursuant to any agreement between Intel and the\nCompany or any of its security holders or otherwise.\n(f)\n"Investor Rights Agreement" means the amended and restated agreement among the Company,\nthe Purchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n(g)\n"MNDA" means the Mutual Non-Disclosure Agreement between Intel and Cloudera, dated as\nof January 29, 2014.\n(h)\n"Permitted Tender Offer" shall have the meaning given to such term in the Standstill\nAgreement.\n2\n(i)\n"Proposed Transaction" means a transaction in connection with (A) Negotiated Transaction\nDiscussions (as defined in the Standstill Agreement), or (B) a potential Sale or Acquisition (as defined in the Standstill\nAgreement) of Cloudera or its assets by or to Intel (or its affiliates) following a Competing Transaction (as defined in the\nStandstill Agreement).\n(j)\n"Representatives" of a person shall include such person's directors, officers, employees, legal\ncounsel, accountants, and financial and other advisors, provided that such Representatives who are not employed by the\nreceiving party owe a duty of confidentiality to the receiving party.\n(k)\n"Right of First Refusal and Co-Sale Agreement" means the amended and restated agreement\namong the Company, the Purchasers, and certain other stockholders of the Company, to be dated as of or on or about the\ndate hereof\n(1)\n"Sensitive Confidential Information" means any of the following subcategories of Confidentia\nInformation that is furnished by Cloudera or its Representatives and received by the Intel Designee in connection with\nhis or her capacity as a member of the Board: (a) non-public information about Cloudera's financial condition,\nprojections, forecasts, prospects or plans; (b) non-public information regarding Cloudera's marketing and sales\nprograms, research and development, new product launches or initiatives, or leadership succession plans for Cloudera's\nsenior officers; (c) non-public information relating to possible business transactions such as mergers, acquisitions,\ndivestitures or joint ventures, or possible capital transactions such as an initial public offering or follow-on public\noffering, credit facilities, share repurchases, dividends or stock splits; (d) non-public information concerning other\ncompanies with whom Cloudera may conduct business, including information about Cloudera's customers, suppliers,\njoint venture partners, or other companies with which the Company is under an obligation of confidentiality; and\n(e) non-public information about meetings, presentations and discussions relating to issues, proceedings, discussions,\ndeliberations and decisions between and among employees, officers and directors and their advisers, including the\nidentity, circumstances and fact of retention of any such advisers (including Board, committee and executive dynamics\nand relationships); provided, however, that Sensitive Confidential Information does not include Publicly Available, Pre-\nExisting, and Independently Developed Information\n(m)\n"Standstill Agreement" means that certain Right of First Notice and Standstill Agreement,\nbetween Cloudera and Intel, of even date herewith.\n(n)\n"Voting Agreement" means the amended and restated agreement among the Company, the\nPurchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n2. Confidentiality..\n(a)\nIntel shall, and shall cause the Intel Designee to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Board Confidential Information to third parties, and (b) not use the Board Confidential\nInformation other than in furtherance of a\n3\nBusiness Purpose (as defined below) (other than in connection with a Permitted Tender Offer); provided, however, that\nthe Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, as provided\nin\nSection 2(f) below, in all cases in compliance with his or her fiduciary duties to Cloudera.\n(b) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Shareholder Confidential Information to third parties; (b) not use the Shareholder\nConfidential Information for any purposes other as permitted under the Transaction Agreements (as such term is defined\nin the Series F-1 Stock Purchase Agreement dated March 21, 2014 (the "Stock Purchase Agreement")); and (c) not\nmake any public announcement in relation to, or public comment on the fact that any Confidential Information has been\nmade\navailable\nto\nIntel,\nits\nAffiliates\nor\nRepresentatives,\nwithout\nCloudera's\nprior\nwritten\nconsent\n(unless\notherwise\npermitted by Sections 4(b) or 4(c) below); provided, however, that Intel and its Representatives may disclose\nConfidential Information and facts, terms and conditions to those of its Representatives who need to know such\ninformation for the sole purpose of furthering a Business Purpose (as defined below) (other than in connection with a\nPermitted Tender Offer) if, and only if, prior to being given access to such Shareholder Confidential Information or\nbeing told such matters, such Representative is informed of the confidentiality thereof and is bound by a confidentiality\nobligation with Intel with respect to such Confidential Information.\n(c) Notwithstanding the foregoing, nothing contained in this Agreement will restrict the free movement,\nor assignment to different tasks and activities, of any employees or other permitted disclosees of Intel throughout his or\nher organization.\n(d) Nothing in this Agreement will prevent Intel or its Representatives or permitted disclosees from\nindependently developing, without use of Confidential Information, competing products or technologies, and from using,\nselling or otherwise supplying to third parties these products or technologies. Further, Intel and its permitted disclosees\nmay\nuse\nResiduals\n(as\ndefined\nbelow)\nfor\nany\npurpose,\nincluding,\nwithout\nlimitation,\nin\nthe\ndevelopment,\nmanufacture,\nsales, promotion, maintenance of the products of Intel; provided that this right to use Residuals does not result in or\namount to a license to Intel or its permitted disclosees under any patents, copyrights, mask works, trademarks or similar\nrights or, except as set forth in the definition of Residuals, any of Cloudera' trade secrets, know-how or other intellectual\nproperty rights with respect to any Confidential Information, either expressly, by implication, inducement, estoppel or\notherwise, absent a written agreement between Intel and Cloudera. The term "Residuals" means any information\nretained in the unaided memories of the employees or other permitted disclosees of the Intel or its Representatives who\nhave had access to the Confidential Information. The memory of the employees or other permitted disclosees of Intel is\nunaided if he or she did not intentionally memorize or otherwise mentally retain for reference the information for the\npurpose of retaining it and later using it or disclosing it to a third party and such employee does not know at the time of\nsuch later use that such information is the confidential information of Cloudera. Subject to the terms and conditions of\nthis Agreement, the employees and other permitted disclosees of Intel will not be restricted from using the Residuals as a\npart of his or her skill, knowledge, talent or expertise on any project.\n4\n(e)\nIntel shall notify Cloudera promptly upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Intel and Intel's Representatives, and will cooperate\nwith Cloudera in every reasonable way to help Cloudera regain possession of the Confidential Information and prevent\nits further unauthorized use or disclosure.\n(f) Intel shall not seek to obtain Confidential Information from an Intel Designee that the Intel Designee\nreceives from Cloudera or its Representatives in his or her capacity as a member of the Board. Notwithstanding the\nforegoing, the Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, with\nIntel's Representatives who need to know such Confidential Information (i) to monitor Intel's relationship with and\ninvestment in the Company, (ii) in furtherance of the Commercial Agreement, or (iii) to evaluate and enter into\nnegotiations\nand\nexecution\nof\na\ntransaction\nin\nconnection\nwith\n(A)\nNegotiated\nTransaction\nDiscussions\n(as\nsuch\nterm\nis\ndefined in the Standstill Agreement), (B) a potential Sale or Acquisition (as defined in the Standstill Agreement)\nof\nCloudera by Intel or any affiliate at a time when Intel's obligations under the Standstill Agreement do not apply, (C) a\nPermitted Tender Offer or (D) as required for securities law purposes (each, a "Business Purpose"); provided that, to\nthe extent Intel or its Affiliates or Representatives receive Sensitive Confidential Information despite the first sentence of\nthis Section 2(f), Intel or its Affiliates or Representatives shall not use (or disclose) such information for any purpose.\n(g) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure to third parties of (i) all Proposed Transaction Information, (ii) the fact that such Party is\nevaluating or has evaluated or considered a Proposed Transaction, (iii) the fact that discussions or negotiations are taking\nplace or have taken place relating to a Proposed Transaction, (iv) the substance of any discussions or negotiations that\ntake place regarding a Proposed Transaction, and (v) all of the terms, conditions or other facts relating to a Proposed\nTransaction; and; (b) not use the Proposed Transaction Information for any purposes other than enabling Intel to evaluate\nCloudera and enter into negotiations and execution of a Proposed Transaction (other than a Permitted Tender Offer;\nprovided, however, that Intel and its Representatives may disclose information, facts, terms and conditions identified in\nsubsections (i) through (v) above to those of its Representatives who need to know such information for the purpose of\nenabling Intel to evaluate Cloudera and enter into negotiations and execution of a Proposed Transaction (other than a\nPermitted Tender Offer.\nNotwithstanding the foregoing, in connection with a Permitted Tender Offer, Intel may use such\nConfidential Information (other than Sensitive Confidential Information). In addition, notwithstanding the foregoing, in\nconnection with a Permitted Tender Offer, Intel may disclose such Confidential Information (other than Sensitive\nConfidential Information) as Intel believes is required to conduct a tender offer under United States federal securities\nlaws.\n3. No Warranties.\nCloudera makes no express or implied representation or warranty as to the accuracy or completeness of any of\nthe information furnished to Intel or its Representatives pursuant hereto. Neither Cloudera nor any of its Representatives\nshall have any liability to Intel or its Representatives\n5\nrelating to or arising from the use of or reliance upon any information or any errors or omissions therein.\n4. Legal Requirements\n(a) If Intel or its Representative becomes subject to a legal requirement (by subpoena, oral deposition,\ninterrogatories, request for production of documents, civil investigative demand, administrative order or otherwise) to\ndisclose any Confidential Information or any other matter required by Section 2 to be kept confidential, Intel (i) will\npromptly notify Cloudera of the existence, terms and circumstances of such requirement so that Cloudera may seek an\nappropriate protective order or waive compliance with the terms of this Agreement, and (ii) will, and will cause its\nRepresentatives to, use commercially reasonable efforts to cooperate with Cloudera in seeking a protective order or other\nassurance that confidential treatment will be accorded to the Confidential Information or other matter.\n(b) If Intel or its Representative having complied with Section 4(a) is compelled to make disclosure in\nresponse to a requirement described in Section 4(a), such person may make such disclosure without liability hereunder\nnotwithstanding the absence of a protective order or waiver of compliance hereunder; provided that (i) Intel and/or its\nRepresentative only disclose that portion of Cloudera's Confidential Information or other matter required by Section 2 to\nbe kept confidential which Intel's counsel advises is legally required to be disclosed, and (ii) Intel and/or its\nRepresentative exercises its commercially reasonable efforts to preserve the confidentiality of the remainder of\nCloudera's other Confidential Information.\n(c)\nIf Intel is advised by its legal counsel that disclosure of Cloudera's Confidential Information or a\nmatter required by Section 2 to be kept confidential is required by applicable law, rule or regulation, including the rules\nor regulations of a national securities exchange or other exchange on which Intel's securities are listed for trading and in\nits filings with the Securities Exchange Commission as is required under applicable federal securities laws, Intel shall\ngive notice thereof to Cloudera as promptly as practicable under the circumstances and shall disclose only such matters\nas\nits\nlegal\ncounsel\nadvises\nis\nrequired\nby\nsuch\nlaw,\nrule\nor\nregulation,\nprovided\nthat\nIntel\nexercises\nits\ncommercially\nreasonable efforts to preserve the confidentiality of Cloudera's Confidential Information, including, without limitation,\nby cooperating with Cloudera to obtain an appropriate protective order or other assurance that confidential treatment will\nbe accorded Cloudera's Confidential Information by any third party to which disclosure is made. If Intel complies with\nthe preceding sentence, it may make such disclosure without liability hereunder notwithstanding the absence of a\nprotective order or waiver of compliance hereunder.\n5. Destruction upon Termination of Information Rights. All Confidential Information shall be and remain the\nproperty of Cloudera. All Confidential Information, whether in hard copy form or intangible media such as electronic\nmail or computer files, shall be returned to Cloudera or destroyed and no copies shall be retained by Intel or its\nRepresentatives:\n(a)\nwith\nrespect\nto\nall\nConfidential\nInformation,\nimmediately\nupon\nCloudera's\nrequest\nfollowing:\n(i)\na\nCompetitor Investment (as such term is defined in the Investor Rights Agreement); (ii) after Intel no longer holds at least\n13% of the securities in Cloudera (as adjusted for stock splits, reverse stock splits and the like) (as defined therein) on\nthe Closing Date (as defined therein); provided, further, that\n6\nin the case of both (i) and (ii), Intel and its Representatives in its or their accounting and financial reporting function\nshall be entitled to retain Confidential Information that is necessary for reporting purposes, including Intel's unaudited\nquarterly financial reporting and Intel financial statement reporting in accordance with GAAP and for audit purposes,\nwhether internal audits or with respect to Intel's independent public accountants, so long as such retained Confidential\nInformation is used only for the purpose described in this proviso; and (b) with respect to all Proposed Transaction\nInformation,\nimmediately\nupon\nCloudera's\nrequest,\nwhich\nrequest\nshall\nnot\nbe\nmade\nduring\nthe\nWaiting\nPeriod\n(as\ndefined in the Standstill Agreement), unless Intel has notified Cloudera that it has determined that it does not desire or\nintend to continue Negotiated Transaction Discussions or a potential Sale or Acquisition of Cloudera by Intel; provided,\nhowever, that, notwithstanding the foregoing, any portion of the Confidential Information that consists of reports,\nanalyses, compilations, data, studies or other documents developed or prepared by or for Intel or its Representatives that\ninclude, incorporate, refer to, reflect or are based in whole or in part on any Confidential Information will be destroyed\nimmediately upon such request; provided further that any such destruction of such information shall be certified in\nwriting to Cloudera. Notwithstanding the return or destruction of the Confidential Information, Intel and its\nRepresentatives will continue to be bound by its obligations of confidentiality, non-use and other obligations hereunder.\n6. Intel Representatives. Intel will be responsible for any breach of this Agreement by the Intel Designee with\nrespect to the Board Confidential Information or by its Representatives with respect to any Confidential Information, and\nagrees, at its sole expense, to take reasonable measures, at such time as it becomes aware of an imminent breach of the\nconfidentiality restrictions by one of its Representatives, to restrain such Representative from prohibited or unauthorized\ndisclosure or use of such Confidential Information.\n7. Compliance with Insider Trading. and Public Disclosure Laws. Intel acknowledges that Intel may become\naware of material, nonpublic information concerning Cloudera. Intel acknowledges that the United States securities laws\nprohibit any person who has material, nonpublic information concerning a company whose securities are publicly traded\nfrom purchasing or selling securities of that company or disclosing such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nAccordingly, for so long as Intel holds material, nonpublic information concerning Cloudera, Intel agrees to take\nreasonable precautions to prevent any trading in the securities of Cloudera, including by Intel's Affiliates and\nRepresentatives, while in possession of material, nonpublic information.\n8.\nDisclaimer of Corporation Opportunity. Cloudera acknowledges that Intel may have, from time to time,\ninformation that may be of interest to the Cloudera ("Intel Information") including, by way of example only, (a) Intel's\ntechnologies, plans and services, (b) current and future investments Intel has made, may make, may consider or may\nbecome aware of with respect to other companies and other technologies, products and services, including, without\nlimitation, technologies, products and services that may be competitive with those of Cloudera, and (c) developments\nwith respect to the technologies, products and services, and plans and strategies relating thereto, of other companies,\nincluding, without limitation, companies that may be competitive with Cloudera; provided, that for the avoidance of\ndoubt Intel Information shall not include any Confidential Information provided by Cloudera to Intel or its\nRepresentatives hereunder\n7\nor that the Intel Designee receives in his or her capacity as a member of the Board. Cloudera, as a material part of the\nconsideration for this Agreement and the transactions contemplated by the Transaction Agreements (as defined in the\nStock Purchase Agreement), agrees that Intel and the Intel Designee shall have no duty to disclose any Intel Information\nto Cloudera or permit Cloudera to participate in any projects or investments based on any Intel Information, or\nto\notherwise take advantage of any opportunity that may be of interest to Cloudera if it were aware of such Intel\nInformation,\nand\nhereby\nwaives,\nto\nthe\nextent\npermitted\nby\nlaw,\nany\nclaim\nbased\non\nthe\ncorporate\nopportunity\ndoctrine\nor\notherwise that could limit Intel's ability to pursue opportunities based on such Intel Information or that would require\nIntel or the Intel Designee to disclose any such Information to Cloudera or offer any opportunity relating thereto to\nCloudera.\n10. Miscellaneous.\n(a)\nPower and Authority.. Each Party hereby represents that it has the power and authority\n(corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement\nconstitutes a valid and binding agreement of such Party, enforceable in accordance with its terms.\n(b)\nCosts and Expenses; Remedies. Each of the Parties will bear its own costs and expenses,\nincluding legal fees and fees of other advisors, with respect to any action to enforce its rights under this Agreement by\nlegal proceedings. It is understood and agreed that money damages would not be a sufficient remedy for any breach of\nthis Agreement and that the non-breaching Party shall be entitled to injunctive relief. Such remedy shall not be deemed\nto be the exclusive remedy for the breach of this Agreement but shall be in addition to all other remedies available at law\nor in equity.\n(c) Delays or Omissions; Modification. No delay or omission to exercise any right, power, or\nremedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement,\nnor any partial exercise thereof, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting\nparty, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach\nor default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise\nafforded to any party, shall be cumulative and not alternative. No modification of this Agreement, termination or waiver\nof\nthe\nterms\nand\nconditions hereof shall be binding upon either Party hereto, unless approved in writing by each\nsuch\nparty.\n(d) Counterparts; Facsimile. This Agreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original, but all of which together shall constitute one and the same instrument. This\nAgreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which\nshall be deemed an original, but all of which together shall constitute one and the same instrument\n(e)\nTitles and Subtitles. The titles and subtitles used in this Agreement are for convenience only\nand are not to be considered in construing or interpreting this Agreement\n8\n(f) Notices. All notices and other communications given or made pursuant to this Agreement shall\nbe in writing and shall be deemed effectively delivered upon the earlier of actual receipt or: (i) personal delivery to the\nparty to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient's normal business hours,\nand if not sent during normal business hours, then on the recipient's next business day; (iii) five (5) days\nafter\nhaving\nbeen sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the\nbusiness day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next day delivery, with\nwritten\nverification\nof\nreceipt.\nIf\nnotice\nis\nsent\nto\nIntel,\nit\nshall\nbe\nsent\nto\nIntel\nCorporation,\nc/o\nIntel\nCapital\nCorporation,\nAttn: Intel Capital Portfolio Manager, 2200 Mission College Blvd, M/S RN6-59, Santa Clara, CA 95054, with a copy,\nwhich shall not constitute notice, by e-mail to: portfolio.manager@intel.com If notice is given to Cloudera, it shall be\nsent\nto\n1001\nPage\nMill\nRoad,\nBuilding\n2,\nPalo\nAlto,\nCA\n94304,\nAttention:\nChief\nExecutive\nOfficer;\nand\na\ncopy\n(which\nshall not constitute notice) shall also be given to Fenwick & West LLP, 801 California Street, Mountain View,\nCA 94041, Attn: David A. Bell.\n(g)\nSeverability.. In case any one or more of the provisions contained in this Agreement is for any\nreason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not\naffect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and\nconstrued so that it will be valid, legal, and enforceable to the maximum extent permitted by law.\n(h)\nEntire Agreement. This Agreement constitutes the full and entire understanding and agreement\namong the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the\nsubject matter hereof existing between the parties is expressly canceled. For avoidance of doubt, and notwithstanding\nanything to the contrary herein or in any other Transaction Document, information, software, data, analysis and other\nmaterial furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives under or pursuant to\nthe Commercial Agreement will be subject to the terms and conditions of the MNDA and will not be subject to the terms\nof this Agreement (regardless of whether the same information, software, data, analysis or other material may also have\nbeen furnished under or pursuant to this Agreement or one or more of the Transaction Documents).\n(i)\nGoverning Law. This agreement shall be governed in all respects, including without limitation\nvalidity, interpretation and effect, by the laws of the state of Delaware applicable to contracts executed and to be\nperformed wholly within such state without giving effect to the choice of law principles of such state.\n(j)\nDispute Resolution. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of\nthe parties hereto (a) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery or, to the\nextent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other federal or state courts\nof\nthe\nState\nof\nDelaware\nin\nthe\nevent\nany\ndispute\narises\nout\nof\nthis\nAgreement\nor\nthe\ntransactions\ncontemplated\nby\nthis\nAgreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for\nleave from any such court, (c) agrees that it shall not bring any action relating\n9\nto this Agreement or the transactions contemplated by this Agreement in any court other than the Delaware Court of\nChancery or, to the extent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other\nfederal or state courts of the State of Delaware, and (d) each of the parties irrevocably consents to service of process by\na\nreputable overnight mail delivery service, signature requested, to the address set forth in Section 10(f) of this Agreement\nor as otherwise provided by applicable law.\n(k)\nSuccessors and Assigns;_ No Third PartyBeneficiaries The terms and conditions of this\nAgreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the Parties.\nNothing in this Agreement, express or implied, is intended to confer upon either Party other than the parties hereto or\ntheir respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of\nthis Agreement, except as expressly provided herein.\n[Signatures Follow]\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy:\n/s/ Tom Reilly\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy:\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy:\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy:\n/s/ Cary Klafter\nCary Klafter\nCorporate Secretary\n12	EX-4 .04 5 s-1exhibit404.htm EXHIBIT 4.04\nExhibit 4.04\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is entered into as of March 21, 2014 (the “Effective Date”)\nby and between Intel Corporation (“Intel”) and Cloudera, Inc. (“Cloudera,” and, together with Intel, each a “Party” or\ntogether the “Parties”).\nWHEREAS, Cloudera may provide certain confidential information (i) to Intel as a result of its notice,\ninformation and inspection rights as a shareholder of Cloudera and in connection with negotiating Proposed Transactions\n(as defined below) (as set forth in more detail below) and (ii) to the Intel Designee (as defined below).\nWHEREAS, any confidential information provided to or disclosed by either party pursuant to the terms of the\nCommercial Agreement will be governed by the terms of the MNDA and not this Agreement.\nNOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, the Parties\nintending to be legally bound agree as follows:\n1. Definitions. For the purposes of this Agreement, the following terms have the following meanings:\n(a)\n“Affiliate” of a person shall include any person that, directly or indirectly, controls, is\ncontrolled by or is under common control with such person. The term “control” means the possession of the power,\ndirectly or indirectly, to direct or cause the direction of the management and affairs of a person.\n(b)\n“Board” means the Board of Directors of Cloudera.\n(c)\n“Commercial Agreement” means that certain Collaboration and Optimization Agreement,\nbetween the Parties, dated as of March 21, 2014.\n(d)\n“Confidential Information” shall mean all information, software, data and analysis (including\nwithout limitation information in tangible or intangible form relating to and/or including released or unreleased products\nand services (including without limitation any product or service names, titles, designs, ideas, concepts, scripts and\nschedules), the marketing or promotion of any product, business policies or practices, business plans and forecasts,\npotential transactions and business combinations and information received from others that Cloudera is obligated to treat\nas confidential) in each case that is furnished by Cloudera or its Representatives, and provided to (i) the Intel Designee\nby reason of his or her position as a member of the Board (the “Board Confidential Information”), (ii) Intel or its\nRepresentatives in the form of non‐public information received pursuant to the Investor Rights Agreement, the Right of\nFirst Refusal and Co‐Sale Agreement, or the Voting Agreement, or pursuant to shareholder information or inspection\nrights under applicable law ( the “Shareholder Confidential Information”), or (iii) to Intel or its Representatives\npursuant to the Standstill Agreement in order to enable Intel to evaluate Cloudera and enter into negotiations and\nexecution of a Proposed Transaction (“Proposed Transaction Information”) shall be considered Confidential\nInformation, as well as any analyses, compilations,\nstudies, documents or other material, regardless of the form thereof, prepared by Intel or its Representatives containing\nor based in whole or in part upon such information, software, data or analysis. Confidential Information does not include\ninformation, software, data or analysis that: (A) is when furnished or thereafter becomes publicly available other than as\na result of a disclosure by Intel or its Representatives in violation of this Agreement, (B) is already in the possession of\nor becomes available to Intel or its Representatives on a non‐confidential basis from a source other than Cloudera or its\nRepresentatives, provided that, to Intel’s knowledge, such source is not and was not bound by an obligation of\nconfidentiality to Cloudera, its Representatives or any other party with regard to such information, software, data or\nanalysis, or (C) Intel can demonstrate was independently developed without use of or reference to Confidential\nInformation by it or its Representatives without violation of this Agreement, provided such independent development\ncan reasonably be proven by written records (“Publicly Available, Pre-Existing, and Independently Developed\nInformation”). For avoidance of doubt, and notwithstanding anything to the contrary herein or in any other Transaction\nDocument, “Confidential Information” for purposes of this Agreement does not include any information, software, data,\nanalysis or other material furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives\nunder or pursuant to the Commercial Agreement (“Commercial Agreement Confidential Information”), and except as\nset forth below in this Section 1(d), all such information will be subject to the terms and conditions of the MNDA. If any\nto the extent any Confidential Information is Commercial Agreement Confidential Information and is also Shareholder\nConfidential Information, the MNDA will govern the obligations with respect to such information, unless such\ninformation was furnished by Cloudera or its Representatives directly to Intel Capital Corporation or its Representatives,\nin which case this Agreement will govern the obligations with respect to such information. If any to the extent any\nConfidential Information is Commercial Agreement Confidential Information and is also Proposed Transaction\nInformation, then (i) to the extent such Confidential Information was furnished to Intel or its Representatives after the\ncommencement of the exchange of information in connection with a Proposed Transaction (“Proposed Transaction\nCommencement”), this Agreement shall govern the obligations with respect to such information, and (ii) to the extent\nsuch information was furnished prior to the Proposed Transaction Commencement, the MNDA will govern the\nobligations with respect to such information.\n(e)\n“Intel Designee” means any Intel employee that serves as a member of the Board and/or any\nmember of the Board that Intel is entitled to elect or designate pursuant to any agreement between Intel and the\nCompany or any of its security holders or otherwise.\n(f)\n“Investor Rights Agreement” means the amended and restated agreement among the Company,\nthe Purchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n(g)\n“MNDA” means the Mutual Non-Disclosure Agreement between Intel and Cloudera, dated as\nof January 29, 2014.\n(h)\n“Permitted Tender Offer” shall have the meaning given to such term in the Standstill\nAgreement.\n2\n(i)\n“Proposed Transaction” means a transaction in connection with (A) Negotiated Transaction\nDiscussions (as defined in the Standstill Agreement), or (B) a potential Sale or Acquisition (as defined in the Standstill\nAgreement) of Cloudera or its assets by or to Intel (or its affiliates) following a Competing Transaction (as defined in the\nStandstill Agreement).\n(j)\n“Representatives” of a person shall include such person’s directors, officers, employees, legal\ncounsel, accountants, and financial and other advisors, provided that such Representatives who are not employed by the\nreceiving party owe a duty of confidentiality to the receiving party.\n(k)\n“Right of First Refusal and Co‐Sale Agreement” means the amended and restated agreement\namong the Company, the Purchasers, and certain other stockholders of the Company, to be dated as of or on or about the\ndate hereof\n(l)\n“Sensitive Confidential Information” means any of the following subcategories of Confidential\nInformation that is furnished by Cloudera or its Representatives and received by the Intel Designee in connection with\nhis or her capacity as a member of the Board: (a) non‐public information about Cloudera’s financial condition,\nprojections, forecasts, prospects or plans; (b) non‐public information regarding Cloudera’s marketing and sales\nprograms, research and development, new product launches or initiatives, or leadership succession plans for Cloudera’s\nsenior officers; (c) non‐public information relating to possible business transactions such as mergers, acquisitions,\ndivestitures or joint ventures, or possible capital transactions such as an initial public offering or follow‐on public\noffering, credit facilities, share repurchases, dividends or stock splits; (d) non‐public information concerning other\ncompanies with whom Cloudera may conduct business, including information about Cloudera’s customers, suppliers,\njoint venture partners, or other companies with which the Company is under an obligation of confidentiality; and\n(e) non-public information about meetings, presentations and discussions relating to issues, proceedings, discussions,\ndeliberations and decisions between and among employees, officers and directors and their advisers, including the\nidentity, circumstances and fact of retention of any such advisers (including Board, committee and executive dynamics\nand relationships); provided, however, that Sensitive Confidential Information does not include Publicly Available, Pre-\nExisting, and Independently Developed Information\n(m)\n“Standstill Agreement” means that certain Right of First Notice and Standstill Agreement,\nbetween Cloudera and Intel, of even date herewith.\n(n)\n“Voting Agreement” means the amended and restated agreement among the Company, the\nPurchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n2. Confidentiality.\n(a) Intel shall, and shall cause the Intel Designee to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Board Confidential Information to third parties, and (b) not use the Board Confidential\nInformation other than in furtherance of a\n3\nBusiness Purpose (as defined below) (other than in connection with a Permitted Tender Offer); provided, however, that\nthe Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, as provided in\nSection 2(f) below, in all cases in compliance with his or her fiduciary duties to Cloudera.\n(b) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Shareholder Confidential Information to third parties; (b) not use the Shareholder\nConfidential Information for any purposes other as permitted under the Transaction Agreements (as such term is defined\nin the Series F-1 Stock Purchase Agreement dated March 21, 2014 (the “Stock Purchase Agreement”)); and (c) not\nmake any public announcement in relation to, or public comment on the fact that any Confidential Information has been\nmade available to Intel, its Affiliates or Representatives, without Cloudera’s prior written consent (unless otherwise\npermitted by Sections 4(b) or 4(c) below); provided, however, that Intel and its Representatives may disclose\nConfidential Information and facts, terms and conditions to those of its Representatives who need to know such\ninformation for the sole purpose of furthering a Business Purpose (as defined below) (other than in connection with a\nPermitted Tender Offer) if, and only if, prior to being given access to such Shareholder Confidential Information or\nbeing told such matters, such Representative is informed of the confidentiality thereof and is bound by a confidentiality\nobligation with Intel with respect to such Confidential Information.\n(c) Notwithstanding the foregoing, nothing contained in this Agreement will restrict the free movement,\nor assignment to different tasks and activities, of any employees or other permitted disclosees of Intel throughout his or\nher organization.\n(d) Nothing in this Agreement will prevent Intel or its Representatives or permitted disclosees from\nindependently developing, without use of Confidential Information, competing products or technologies, and from using,\nselling or otherwise supplying to third parties these products or technologies. Further, Intel and its permitted disclosees\nmay use Residuals (as defined below) for any purpose, including, without limitation, in the development, manufacture,\nsales, promotion, maintenance of the products of Intel; provided that this right to use Residuals does not result in or\namount to a license to Intel or its permitted disclosees under any patents, copyrights, mask works, trademarks or similar\nrights or, except as set forth in the definition of Residuals, any of Cloudera’ trade secrets, know‐how or other intellectual\nproperty rights with respect to any Confidential Information, either expressly, by implication, inducement, estoppel or\notherwise, absent a written agreement between Intel and Cloudera. The term “Residuals” means any information\nretained in the unaided memories of the employees or other permitted disclosees of the Intel or its Representatives who\nhave had access to the Confidential Information. The memory of the employees or other permitted disclosees of Intel is\nunaided if he or she did not intentionally memorize or otherwise mentally retain for reference the information for the\npurpose of retaining it and later using it or disclosing it to a third party and such employee does not know at the time of\nsuch later use that such information is the confidential information of Cloudera. Subject to the terms and conditions of\nthis Agreement, the employees and other permitted disclosees of Intel will not be restricted from using the Residuals as a\npart of his or her skill, knowledge, talent or expertise on any project.\n4\n(e) Intel shall notify Cloudera promptly upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Intel and Intel’s Representatives, and will cooperate\nwith Cloudera in every reasonable way to help Cloudera regain possession of the Confidential Information and prevent\nits further unauthorized use or disclosure.\n(f) Intel shall not seek to obtain Confidential Information from an Intel Designee that the Intel Designee\nreceives from Cloudera or its Representatives in his or her capacity as a member of the Board. Notwithstanding the\nforegoing, the Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, with\nIntel’s Representatives who need to know such Confidential Information (i) to monitor Intel’s relationship with and\ninvestment in the Company, (ii) in furtherance of the Commercial Agreement, or (iii) to evaluate and enter into\nnegotiations and execution of a transaction in connection with (A) Negotiated Transaction Discussions (as such term is\ndefined in the Standstill Agreement), (B) a potential Sale or Acquisition (as defined in the Standstill Agreement) of\nCloudera by Intel or any affiliate at a time when Intel’s obligations under the Standstill Agreement do not apply, (C) a\nPermitted Tender Offer , or (D) as required for securities law purposes (each, a “Business Purpose”); provided that, to\nthe extent Intel or its Affiliates or Representatives receive Sensitive Confidential Information despite the first sentence of\nthis Section 2(f), Intel or its Affiliates or Representatives shall not use (or disclose) such information for any purpose.\n(g) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure to third parties of (i) all Proposed Transaction Information, (ii) the fact that such Party is\nevaluating or has evaluated or considered a Proposed Transaction, (iii) the fact that discussions or negotiations are taking\nplace or have taken place relating to a Proposed Transaction, (iv) the substance of any discussions or negotiations that\ntake place regarding a Proposed Transaction, and (v) all of the terms, conditions or other facts relating to a Proposed\nTransaction; and; (b) not use the Proposed Transaction Information for any purposes other than enabling Intel to evaluate\nCloudera and enter into negotiations and execution of a Proposed Transaction (other than a Permitted Tender Offer;\nprovided, however, that Intel and its Representatives may disclose information, facts, terms and conditions identified in\nsubsections (i) through (v) above to those of its Representatives who need to know such information for the purpose of\nenabling Intel to evaluate Cloudera and enter into negotiations and execution of a Proposed Transaction (other than a\nPermitted Tender Offer.\nNotwithstanding the foregoing, in connection with a Permitted Tender Offer, Intel may use such\nConfidential Information (other than Sensitive Confidential Information). In addition, notwithstanding the foregoing, in\nconnection with a Permitted Tender Offer, Intel may disclose such Confidential Information (other than Sensitive\nConfidential Information) as Intel believes is required to conduct a tender offer under United States federal securities\nlaws.\n3. No Warranties.\nCloudera makes no express or implied representation or warranty as to the accuracy or completeness of any of\nthe information furnished to Intel or its Representatives pursuant hereto. Neither Cloudera nor any of its Representatives\nshall have any liability to Intel or its Representatives\n5\nrelating to or arising from the use of or reliance upon any information or any errors or omissions therein.\n4. Legal Requirements.\n(a) If Intel or its Representative becomes subject to a legal requirement (by subpoena, oral deposition,\ninterrogatories, request for production of documents, civil investigative demand, administrative order or otherwise) to\ndisclose any Confidential Information or any other matter required by Section 2 to be kept confidential, Intel (i) will\npromptly notify Cloudera of the existence, terms and circumstances of such requirement so that Cloudera may seek an\nappropriate protective order or waive compliance with the terms of this Agreement, and (ii) will, and will cause its\nRepresentatives to, use commercially reasonable efforts to cooperate with Cloudera in seeking a protective order or other\nassurance that confidential treatment will be accorded to the Confidential Information or other matter.\n(b) If Intel or its Representative having complied with Section 4(a) is compelled to make disclosure in\nresponse to a requirement described in Section 4(a), such person may make such disclosure without liability hereunder\nnotwithstanding the absence of a protective order or waiver of compliance hereunder; provided that (i) Intel and/or its\nRepresentative only disclose that portion of Cloudera’s Confidential Information or other matter required by Section 2 to\nbe kept confidential which Intel’s counsel advises is legally required to be disclosed, and (ii) Intel and/or its\nRepresentative exercises its commercially reasonable efforts to preserve the confidentiality of the remainder of\nCloudera’s other Confidential Information.\n(c) If Intel is advised by its legal counsel that disclosure of Cloudera’s Confidential Information or a\nmatter required by Section 2 to be kept confidential is required by applicable law, rule or regulation, including the rules\nor regulations of a national securities exchange or other exchange on which Intel’s securities are listed for trading and in\nits filings with the Securities Exchange Commission as is required under applicable federal securities laws, Intel shall\ngive notice thereof to Cloudera as promptly as practicable under the circumstances and shall disclose only such matters\nas its legal counsel advises is required by such law, rule or regulation, provided that Intel exercises its commercially\nreasonable efforts to preserve the confidentiality of Cloudera’s Confidential Information, including, without limitation,\nby cooperating with Cloudera to obtain an appropriate protective order or other assurance that confidential treatment will\nbe accorded Cloudera’s Confidential Information by any third party to which disclosure is made. If Intel complies with\nthe preceding sentence, it may make such disclosure without liability hereunder notwithstanding the absence of a\nprotective order or waiver of compliance hereunder.\n5. Destruction upon Termination of Information Rights. All Confidential Information shall be and remain the\nproperty of Cloudera. All Confidential Information, whether in hard copy form or intangible media such as electronic\nmail or computer files, shall be returned to Cloudera or destroyed and no copies shall be retained by Intel or its\nRepresentatives: (a) with respect to all Confidential Information, immediately upon Cloudera’s request following: (i) a\nCompetitor Investment (as such term is defined in the Investor Rights Agreement); (ii) after Intel no longer holds at least\n13% of the securities in Cloudera (as adjusted for stock splits, reverse stock splits and the like) (as defined therein) on\nthe Closing Date (as defined therein); provided, further, that\n6\nin the case of both (i) and (ii), Intel and its Representatives in its or their accounting and financial reporting function\nshall be entitled to retain Confidential Information that is necessary for reporting purposes, including Intel’s unaudited\nquarterly financial reporting and Intel financial statement reporting in accordance with GAAP and for audit purposes,\nwhether internal audits or with respect to Intel’s independent public accountants, so long as such retained Confidential\nInformation is used only for the purpose described in this proviso; and (b) with respect to all Proposed Transaction\nInformation, immediately upon Cloudera’s request, which request shall not be made during the Waiting Period (as\ndefined in the Standstill Agreement), unless Intel has notified Cloudera that it has determined that it does not desire or\nintend to continue Negotiated Transaction Discussions or a potential Sale or Acquisition of Cloudera by Intel; provided,\nhowever, that, notwithstanding the foregoing, any portion of the Confidential Information that consists of reports,\nanalyses, compilations, data, studies or other documents developed or prepared by or for Intel or its Representatives that\ninclude, incorporate, refer to, reflect or are based in whole or in part on any Confidential Information will be destroyed\nimmediately upon such request; provided further that any such destruction of such information shall be certified in\nwriting to Cloudera. Notwithstanding the return or destruction of the Confidential Information, Intel and its\nRepresentatives will continue to be bound by its obligations of confidentiality, non-use and other obligations hereunder.\n6. Intel Representatives. Intel will be responsible for any breach of this Agreement by the Intel Designee with\nrespect to the Board Confidential Information or by its Representatives with respect to any Confidential Information, and\nagrees, at its sole expense, to take reasonable measures, at such time as it becomes aware of an imminent breach of the\nconfidentiality restrictions by one of its Representatives, to restrain such Representative from prohibited or unauthorized\ndisclosure or use of such Confidential Information.\n7. Compliance with Insider Trading and Public Disclosure Laws. Intel acknowledges that Intel may become\naware of material, nonpublic information concerning Cloudera. Intel acknowledges that the United States securities laws\nprohibit any person who has material, nonpublic information concerning a company whose securities are publicly traded\nfrom purchasing or selling securities of that company or disclosing such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nAccordingly, for so long as Intel holds material, nonpublic information concerning Cloudera, Intel agrees to take\nreasonable precautions to prevent any trading in the securities of Cloudera, including by Intel’s Affiliates and\nRepresentatives, while in possession of material, nonpublic information.\n8. Disclaimer of Corporation Opportunity. Cloudera acknowledges that Intel may have, from time to time,\ninformation that may be of interest to the Cloudera (“Intel Information”) including, by way of example only, (a) Intel’s\ntechnologies, plans and services, (b) current and future investments Intel has made, may make, may consider or may\nbecome aware of with respect to other companies and other technologies, products and services, including, without\nlimitation, technologies, products and services that may be competitive with those of Cloudera, and (c) developments\nwith respect to the technologies, products and services, and plans and strategies relating thereto, of other companies,\nincluding, without limitation, companies that may be competitive with Cloudera; provided, that for the avoidance of\ndoubt Intel Information shall not include any Confidential Information provided by Cloudera to Intel or its\nRepresentatives hereunder\n7\nor that the Intel Designee receives in his or her capacity as a member of the Board. Cloudera, as a material part of the\nconsideration for this Agreement and the transactions contemplated by the Transaction Agreements (as defined in the\nStock Purchase Agreement), agrees that Intel and the Intel Designee shall have no duty to disclose any Intel Information\nto Cloudera or permit Cloudera to participate in any projects or investments based on any Intel Information, or to\notherwise take advantage of any opportunity that may be of interest to Cloudera if it were aware of such Intel\nInformation, and hereby waives, to the extent permitted by law, any claim based on the corporate opportunity doctrine or\notherwise that could limit Intel’s ability to pursue opportunities based on such Intel Information or that would require\nIntel or the Intel Designee to disclose any such Information to Cloudera or offer any opportunity relating thereto to\nCloudera.\n10. Miscellaneous.\n(a)\nPower and Authority. Each Party hereby represents that it has the power and authority\n(corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement\nconstitutes a valid and binding agreement of such Party, enforceable in accordance with its terms.\n(b)\nCosts and Expenses; Remedies. Each of the Parties will bear its own costs and expenses,\nincluding legal fees and fees of other advisors, with respect to any action to enforce its rights under this Agreement by\nlegal proceedings. It is understood and agreed that money damages would not be a sufficient remedy for any breach of\nthis Agreement and that the non‐breaching Party shall be entitled to injunctive relief. Such remedy shall not be deemed\nto be the exclusive remedy for the breach of this Agreement but shall be in addition to all other remedies available at law\nor in equity.\n(c)\nDelays or Omissions; Modification. No delay or omission to exercise any right, power, or\nremedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement,\nnor any partial exercise thereof, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting\nparty, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach\nor default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise\nafforded to any party, shall be cumulative and not alternative. No modification of this Agreement, termination or waiver\nof the terms and conditions hereof shall be binding upon either Party hereto, unless approved in writing by each such\nparty.\n(d)\nCounterparts; Facsimile. This Agreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original, but all of which together shall constitute one and the same instrument. This\nAgreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which\nshall be deemed an original, but all of which together shall constitute one and the same instrument\n(e)\nTitles and Subtitles. The titles and subtitles used in this Agreement are for convenience only\nand are not to be considered in construing or interpreting this Agreement\n8\n(f)\nNotices. All notices and other communications given or made pursuant to this Agreement shall\nbe in writing and shall be deemed effectively delivered upon the earlier of actual receipt or: (i) personal delivery to the\nparty to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours,\nand if not sent during normal business hours, then on the recipient’s next business day; (iii) five (5) days after having\nbeen sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the\nbusiness day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next day delivery, with\nwritten verification of receipt. If notice is sent to Intel, it shall be sent to Intel Corporation, c/o Intel Capital Corporation,\nAttn: Intel Capital Portfolio Manager, 2200 Mission College Blvd, M/S RN6-59, Santa Clara, CA 95054, with a copy,\nwhich shall not constitute notice, by e-mail to: portfolio.manager@intel.com. If notice is given to Cloudera, it shall be\nsent to 1001 Page Mill Road, Building 2, Palo Alto, CA 94304, Attention: Chief Executive Officer; and a copy (which\nshall not constitute notice) shall also be given to Fenwick & West LLP, 801 California Street, Mountain View,\nCA 94041, Attn: David A. Bell.\n(g)\nSeverability. In case any one or more of the provisions contained in this Agreement is for any\nreason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not\naffect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and\nconstrued so that it will be valid, legal, and enforceable to the maximum extent permitted by law.\n(h)\nEntire Agreement. This Agreement constitutes the full and entire understanding and agreement\namong the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the\nsubject matter hereof existing between the parties is expressly canceled. For avoidance of doubt, and notwithstanding\nanything to the contrary herein or in any other Transaction Document, information, software, data, analysis and other\nmaterial furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives under or pursuant to\nthe Commercial Agreement will be subject to the terms and conditions of the MNDA and will not be subject to the terms\nof this Agreement (regardless of whether the same information, software, data, analysis or other material may also have\nbeen furnished under or pursuant to this Agreement or one or more of the Transaction Documents).\n(i)\nGoverning Law. This agreement shall be governed in all respects, including without limitation\nvalidity, interpretation and effect, by the laws of the state of Delaware applicable to contracts executed and to be\nperformed wholly within such state without giving effect to the choice of law principles of such state.\n(j)\nDispute Resolution. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of\nthe parties hereto (a) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery or, to the\nextent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other federal or state courts\nof the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this\nAgreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for\nleave from any such court, (c) agrees that it shall not bring any action relating\n9\nto this Agreement or the transactions contemplated by this Agreement in any court other than the Delaware Court of\nChancery or, to the extent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other\nfederal or state courts of the State of Delaware, and (d) each of the parties irrevocably consents to service of process by a\nreputable overnight mail delivery service, signature requested, to the address set forth in Section 10(f) of this Agreement\nor as otherwise provided by applicable law.\n(k)\nSuccessors and Assigns; No Third Party Beneficiaries. The terms and conditions of this\nAgreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the Parties.\nNothing in this Agreement, express or implied, is intended to confer upon either Party other than the parties hereto or\ntheir respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of\nthis Agreement, except as expressly provided herein.\n[Signatures Follow]\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy: /s/ Tom Reilly\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy:\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy:\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy: /s/ Cary Klafter\nCary Klafter\nCorporate Secretary\n12
1a5847e0b968e25ddcf41ac9c6fc63b4.pdf	effective_date jurisdiction party term	EX-10 .1 2 exhibit101cwashmore.htm EXHIBIT 10.1\nEmerson\n8000 West Florissant Avenue\nP.O . Box 4100\nSt. Louis, MO 63136-8506\nUSA\nNovember 11, 2013\nCraig W. Ashmore\n226 Conway Hill Road\nSt. Louis, MO 63141\nDear Mr. Ashmore:\nThis Letter Agreement (“Agreement”) sets out the terms of your resignation as an employee, officer and/or director of\nEmerson Electric Co. Throughout this Agreement the term “Emerson” means Emerson Electric Co. together with any and all other\nentities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your resignation and the terms of this agreement\nare effective as of November 11, 2013 (“Resignation Date”).\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON- DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment\nor resignation of employment with Emerson or the terms of this Agreement. If inquiry is made by anyone regarding your\nemployment or separation of employment from Emerson, you agree to state only “I have resigned my employment and officer and\ndirector positions with Emerson effective November 11, 2013 and look forward to further career opportunities. I have enjoyed my\nmany years of employment with Emerson, but it is time for me personally to move on. Emerson is a tremendous company and I\nwish it well.”\nYou also agree not, directly or indirectly, to disparage or make or cause to be made, any comments, statements, or communications\nof any sort to anyone - whether true or false, that may reasonably be considered to be derogatory or detrimental to Emerson or any\nReleased Parties (as defined in the Release Agreement attached as Exhibit A), their reputations, or their services. You\nacknowledge that Emerson has a good reputation locally, nationally and internationally, and you will take no action nor engage in\nany conduct that could injure or diminish that good reputation.\n2. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson’s trade secrets and confidential and\nproprietary information (“Confidential Information”), which includes or concerns, but is not limited to, attorney/client communications,\nglobal strategic communications, information pertaining to strategic planning and strategy, mergers and acquisitions, corporate\ntechnology, customers, pricing, business methods and operations, business policies, procedures, practices and techniques, legal\nopinions and legal matters, research or development projects or results, sales, finances, products, suppliers, personnel\nperformance and compensation, plans for future development, marketing practices and financial forecasts and budgeting. You\nagree that disclosure of such Confidential Information would be detrimental to Emerson and agree that at no time following\ntermination of your employment with Emerson will you directly or indirectly disclose or cause the disclosure of any Confidential\nInformation to any person, firm, corporation, or entity no matter what the purpose. You further agree that you will not\ndirectly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing\nauthorities; communicate with your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or\nagents bind themselves in writing to the same non-disclosure obligation as set forth above; or, to respond to any lawfully issued\nsubpoena or order of a court of competent jurisdiction or legitimate discovery request pursuant to state or federal rules of civil\nprocedure. If any such subpoena, order of court or discovery request is received, you agree to send to Emerson’s General Counsel\nno later than two days after receipt via email to frank.steeves@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson’s General Counsel within a three day period following the Resignation Date all\nsuch Confidential Information, any other property of Emerson, and all copies thereof in your possession or control, whether in hard\ncopy or electronically stored, and whether or not stored on an Emerson-owned device. If after such three day period you determine\nthat you have any Confidential Information or other property of Emerson in your possession, you shall immediately deliver such\nConfidential Information or property to the office of Emerson’s General Counsel.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson’s Chief Executive Officer and General Counsel,\ndirectly or indirectly for a period of three years from your Resignation Date (“Restricted Period”):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in any person, firm, corporation,\nor other entity engaged in business activities anywhere in the world that directly or indirectly competes with the businesses of\nEmerson as conducted on the date of this Agreement or as contemplated on the date hereof to be developed during the Restricted\nPeriod;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other\ninvestment vehicle however structured that either directly or indirectly or through portfolio company investments or otherwise\ncompetes with the businesses of Emerson as conducted on the date hereof or as contemplated on the date hereof to be developed\nduring the Restrictive Period;\n(c) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(d) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with\nEmerson;\n(e) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or\nconsultant of Emerson to leave employment or separate his or her relationship with Emerson or induce any such person to do\nanything which you are restricted from doing by reason of this Agreement; or\n(f) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is\nlisted on any national securities exchange, traded over-the-counter or that is otherwise available for investment by the general\npublic as long as you have no relationship with the issuer of such securities or any affiliate thereof, except as an investor.\nCraig W. Ashmore\nNovember 11, 2013\nPage 3\n4. REASONABLENESS, ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of\nEmerson in light of your in-depth knowledge of Emerson’s global business, your present and prior positions with Emerson, and your\naccess to Confidential Information relating to all of Emerson’s businesses. You also affirm your agreement to comply with all\nexisting non-compete, invention, non-disclosure and non-solicitation obligations you have with Emerson, including specifically your\nobligations under the Emerson incentive shares plans and award agreements, Emerson stock option plans and option agreements,\nand Emerson non-qualified supplemental executive retirement plan. You agree that your obligations set forth in this Agreement are\nin addition to and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct\nconflict, in which case the terms of this Agreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to\nyou herein but for the restrictions in this Agreement. You agree that a violation of these Agreements would result in irreparable\ninjury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other\nremedies to which Emerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable\nattorneys’ fees Emerson incurs to seek enforcement of any provision contained herein, whether or not litigation is commenced.\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits\nprovided to you under this Agreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of\nthe economic value of all benefits provided to you under this Agreement prior to the date of breach. You agree that this liquidated\ndamage provision and other remedies are necessary because substantial damage will accrue to Emerson as the result of a breach,\nand the amount of damages attributable to such breach may be uncertain and difficult to calculate. Payment of liquidated damages\nshall in no way affect the settlement and release of claims by you, nor shall payment of liquidated damages limit the enforceability of\nany clause in this Agreement or the ability of Emerson to seek damages and any other relief from you as provided under applicable\nlaw.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective directors, officers, employees and agents from any and all claims or\nliability of whatever nature and will execute on your Resignation Date the Release Agreement attached hereto as Exhibit A. If the\nRelease Agreement attached as Exhibit A is not executed by you, this Agreement shall be null and void. You also agree that no\nbenefits or other compensation described in this Agreement shall be paid or provided to you until expiration of the seven-day\nrevocation period set forth in Paragraph 3(d) of the Release Agreement.\n6. RESIGNATION\nOn or before the Resignation Date, you agree to execute the Officer Resignation Form attached hereto as Exhibit B.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson’s Clawback Policy, which provides: “If the Board determines that an executive\nofficer has engaged in intentional misconduct that caused or partially caused a material restatement of the Company's consolidated\nfinancial statements, the Board may, to the extent permitted by law and to the extent it determines that it is in the Company's best\ninterests to do so, require reimbursement to the Company of, or reduce or cancel, that portion of annual incentive or any long-term\nincentive compensation paid or credited to such executive officer on or after October 1, 2009\nCraig W. Ashmore\nNovember 11, 2013\nPage 4\nthat would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term “executive officer” means any officer of the Company who is required to file\nreports pursuant to Section 16 of the Securities Exchange Act of 1934.”\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon compliance with your obligations and agreements in this Agreement, and also conditioned upon\nyour service from the Resignation Date until September 30, 2014 as a consultant to Emerson, as such service may be requested or\nrequired by Emerson, you will receive the compensation and benefits outlined below. The period during which you shall serve as a\nconsultant to Emerson may be terminated at any time by agreement of you and Emerson. The compensation and benefits set forth\nherein are in lieu of and replace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will receive a monthly consulting fee of $47,917 through the earlier of September 30, 2014 or the date you find\nemployment elsewhere (the “Consulting Period”). Emerson will reimburse up to $40,000 of your expenses incurred during the\nConsulting Period related to the services.\nB. You will be eligible to receive your earned fiscal 2013 extra salary payment, paid at the normal time, as previously\ndetermined pursuant to customary Emerson practice and the terms of the annual incentive plan.\nC. After the Resignation Date and during the Consulting Period, you and all qualified beneficiaries may continue to\nparticipate in Emerson’s health care coverage on the same terms and conditions as employees of Emerson. After the Consulting\nPeriod, you and all qualified beneficiaries may elect to continue health care coverage under Emerson’s group health care plan\npursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), which coverage would otherwise end. You will receive\na separate letter at that time regarding continued participation under COBRA. Any participation by you and any qualified\nbeneficiaries under COBRA after the end of the Consulting Period shall be at your sole cost and expense.\nD. After the Resignation Date, you may continue coverage under the former split dollar and group universal life policies\nowned by you. Until the last day of the Consulting Period, Emerson will pay premiums on such policies in the same manner and to\nthe same extent that it has prior to the Resignation Date. After the end of the Consulting Period, you may continue coverage under\nsuch policies at your expense.\nE. Through the end of the Consulting Period, Emerson will continue to pay any amounts it is currently paying for your\nleased automobile and for dues to clubs in which you are currently a member. After the Consulting Period, Emerson shall have no\nobligation for any of these payments. Emerson will pay up to $10,000 for tax planning and compliance services related to calendar\nyear 2013. Emerson will have no other obligations for financial planning payments after the Resignation Date.\nF. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation\nCommittee of the Board of Directors, all options previously awarded to you under Emerson’s stock option plans that are currently\nexercisable will remain exercisable for three months after the Resignation Date. Those that are not currently exercisable will be\ncancelled as of the Resignation Date. Any stock options that are not exercised by you within three months after the Resignation\nDate will be cancelled.\nCraig W. Ashmore\nNovember 11, 2013\nPage 5\nG. The Compensation Committee has determined that you will remain eligible to receive, subject to the other applicable\nterms of Emerson’s Incentive Shares Plans and the applicable Performance Shares Program, including those concerning\nachievement of the performance objective(s) under the Program, (1) the previously determined earned payout of the performance\nshares under the 2010 Performance Shares Program, and (2) a 25% pro rata earned payout of the performance shares awarded to\nyou under the 2013 Performance Shares Program, subject to achievement of the performance objectives under the Program, and\nbased on the actual payout percentage applicable to all participants in the Program. Payments under the 2010 and 2013\nPerformance Shares Programs will be made at the respective times provided therefor under the Programs.\nH. Pursuant to the terms of Emerson’s Incentive Shares Plans, the Compensation Committee has approved that your\nawards of restricted shares will continue to vest at the times specified in such awards, October 4, 2015, October 3, 2016, May 6,\n2018 and October 1, 2022, respectively, and that you will continue to receive dividends on such restricted share awards to the\nextent provided in the applicable award agreements.\nI. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan and the related\nEmerson Electric Co. Pension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits\nyou would have been eligible to receive under the all-employee Retirement Plan were it not for the compensation limitations\nimposed under the Internal Revenue Code (“Code”)), you will be eligible to receive your monthly pension benefits accrued to date\nunder each of these plans, subject to the provisions of each such plan. Payments of your pension benefits will be paid monthly in\nthe manner and times set forth in the plans, subject to the terms and conditions of the plans.\nJ. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k)\nplan) to the extent permitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the\nEmerson Electric Co. Savings Investment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of such plans and\nyour distribution elections thereunder. Distributions from these plans which are not “grandfathered” under Section 409A of the Code\nshall be deferred to the extent required by Code Section 409A.\nK. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares\nprogram payouts, vesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to\nincome tax and other withholdings as required by law.\nL. Except as provided for specifically above, after the Resignation Date you will not be permitted to continue participating in\nany Emerson benefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the\ndisability insurance program.\nM. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an\nactivity that you are prohibited from engaging in during the Restricted Period, Emerson shall be relieved of all further obligations\nwith respect to the payments or benefits described herein.\n*\n*\n*\nThis Agreement is deemed to be entered in the State of Missouri and, without regard for conflict of laws principles, shall be\ninterpreted in accordance with and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or\nproceeding with respect to this Agreement shall be brought and determined in the courts of the County of St. Louis, State of\nMissouri or of the United States\nCraig W. Ashmore\nNovember 11, 2013\nPage 6\nof America for the Eastern District of Missouri and that you submit to the jurisdiction of such courts with respect to any such action\nor proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding\nthis Agreement or any of the documents referenced in this Agreement, including the Release Agreement.\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 10th\nDAY OF November, 2013:\n/s/ Craig W. Ashmore\nName: Craig W. Ashmore\nExhibit A - RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. (“Employer”)\nand Craig W. Ashmore (“Employee”). In consideration of the mutual promises and covenants contained in the Letter Agreement and\nherein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do\nhereby agree as follows:\n1.\nEmployment. Employee was previously employed by Employer. The employment of Employee with Employer\nhas ended as a result of Employee’s resignation effective November 11, 2013.\n2.\nRelease. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and\nthis Release Agreement, Employee, for himself and his heirs, agrees to and does hereby waive, covenant not to sue, releases, and\nforever discharges Employer, and each and every one of Employer’s parent, subsidiary and other affiliated entities (the “Emerson\nEntities”), and their respective agents, employees, officers, directors, stockholders, managers, members, successors,\npredecessors, contractors, attorneys, agents and assigns (collectively referred to as “Released Parties”), from and with respect to\nall matters, claims, charges, demands, damages, causes of action, debts, liabilities, controversies, judgments, and suits of every\nkind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date this Release Agreement becomes\neffective and including, but not limited to, those in any way related to Employee and/or Employee’s separation from employment.\nThis release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against\nReleased Parties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury,\nwrongful discharge, emotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or\nany other class protected by law), harassment, retaliation, claims for workers' compensation benefits, claims for unpaid wages, any\nclaim under the Age Discrimination in Employment Act, 29 U.S .C. §621 et seq., 42 U.S .C. §1981, Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S .C. §2000e et seq., the Civil Rights Act of 1866, 42 U.S .C. §1981, the Americans With Disabilities Act, 42\nU.S .C. §12101, et seq., the Employee Retirement Income Security Act of 1974, as amended, 29 U.S .C. §1001, et seq., the Family\nMedical Leave Act, 29 U.S .C. § 2601 et seq., any claim under the Fair Labor Standards Act of 1938, 29 U.S .C. §201 et seq., the\nMissouri Human Rights Act, RSMo §213.010 et seq.; any claim under common law, and any claim under any federal, state or local\nstatute, regulation, constitution, order or executive order. This release also expressly includes, but is not limited to, any claim for\nattorneys' fees or costs. Employee affirms and warrants that he has made no charge, claim, complaint, or otherwise initiated action\nagainst Employer in any government agency, court or other forum and that no such matter is pending. Employee further affirms and\nwarrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer\nor director of Employer engaging in any act related to the performance of their duties at or for Employer which Employee knows or\nbelieves to be illegal and Employee acknowledges that he has never complained of any unlawful conduct by Employer. Employee\nhereby releases and relinquishes any and all rights to employment, reinstatement and any right to future employment with Employer\nor the Emerson Entities. Employee also waives and releases any right or ability to be a class or collective action representative or to\notherwise participate in any putative or certified class, collective or multi-party action or proceeding based on a claim in which\nEmployer or any one or more Released Parties is a party. Notwithstanding the foregoing, Employee is not waiving any right to\nenforce any term or provision of the Letter Agreement.\nCraig W. Ashmore\nNovember 11, 2013\nPage 2\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or\nclaims arising under the Age Discrimination in Employment Act of 1967 (“ADEA”) and:\n(a)\nEmployee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in\nexchange for the consideration provided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is\notherwise entitled; and\n(b)\nEmployee acknowledges that Employer has, and does, hereby expressly advise him to consult with an\nattorney of his choosing, at his own expense, prior to executing this Release Agreement; and\n(c)\nEmployee agrees that he has been given a period of not less than twenty-one (21) days from receipt of\nthis document within which to consider this Release Agreement; and\n(d)\nEmployee acknowledges he has been advised by Employer that he is entitled to revoke (in the event he\nexecutes this Release Agreement) his waiver of rights or claims arising under the ADEA within seven (7) days after executing this\nRelease Agreement and that said waiver will not and does not become effective or enforceable until the seven (7) day revocation\nperiod has expired; and\n(e)\nThe parties agree that should Employee exercise his right to revoke the waiver under subpart (d) of this\nSection 3, this entire Release Agreement and Letter Agreement, and their obligations, are null and void and of no effect and,\nnotwithstanding any other provision of this Release Agreement or the Letter Agreement to the contrary, no severance pay or other\nconsideration shall be due, owing, paid or provided until the seven (7) day revocation period has expired without revocation by\nEmployee. Notice of Employee’s decision to revoke the waiver may be sent to Emerson’s General Counsel by fax (at 314-553-\n3025), email (to frank.steeves@emerson.com) or hand-delivery.\n1.\nRemedies. Without limiting the remedies available to Employer for any breach of this Release Agreement,\nEmployee agrees that any breach of either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any\nfuture payments to be made to, or benefits to be provided to, Employee and all other remedies and relief as specifically set forth\nfurther in the Letter Agreement shall be available to Employer.\n2.\nSuccessors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties’ respective\nheirs, administrators, representatives, executors, successors, and assigns.\n3.\nReview by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that\nEmployee was advised of his right to review this Release Agreement with an attorney at his expense, and that Employee fully\nunderstands the meaning and intent of this Release Agreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Craig W. Ashmore\nCraig W. Ashmore\nDate:\n11/10/13\nExhibit B - OFFICER RESIGNATION FORM\nI, Craig W. Ashmore, do hereby submit my resignation, effective November 11, 2013, from my position as Executive Vice President\n- Planning and Development and as an Advisory Director of Emerson Electric Co., as well as from any other positions I may hold\nwith any subsidiaries or affiliates of Emerson.\n/s/ Craig W. Ashmore\n11/10/2013\nCraig W. Ashmore\nDate	EX-10.1 2 exhibit101cwashmore.htm EXHIBIT 10.1\n-\nEmerson\n8000 West Florissant Avenue\nP.O. Box 4100\nSt. Louis, MO 63136-8506\nUSA\nNovember 11, 2013\nCraig W. Ashmore\n226 Conway Hill Road\nSt. Louis, MO 63141\nDear Mr. Ashmore:\nThis Letter Agreement (“Agreement”) sets out the terms of your resignation as an employee, officer and/or director of\nEmerson Electric Co. Throughout this Agreement the term “Emerson” means Emerson Electric Co. together with any and all other\nentities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your resignation and the terms of this agreement\nare effective as of November 11, 2013 (“Resignation Date”).\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON- DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment\nor resignation of employment with Emerson or the terms of this Agreement. If inquiry is made by anyone regarding your\nemployment or separation of employment from Emerson, you agree to state only “I have resigned my employment and officer and\ndirector positions with Emerson effective November 11, 2013 and look forward to further career opportunities. | have enjoyed my\nmany years of employment with Emerson, but it is time for me personally to move on. Emerson is a tremendous company and |\nwish it well.”\nYou also agree not, directly or indirectly, to disparage or make or cause to be made, any comments, statements, or communications\nof any sort to anyone - whether true or false, that may reasonably be considered to be derogatory or detrimental to Emerson or any\nReleased Parties (as defined in the Release Agreement attached as Exhibit A), their reputations, or their services. You\nacknowledge that Emerson has a good reputation locally, nationally and internationally, and you will take no action nor engage in\nany conduct that could injure or diminish that good reputation.\n2. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson’s trade secrets and confidential and\nproprietary information (“Confidential Information”), which includes or concerns, but is not limited to, attorney/client communications,\nglobal strategic communications, information pertaining to strategic planning and strategy, mergers and acquisitions, corporate\ntechnology, customers, pricing, business methods and operations, business policies, procedures, practices and techniques, legal\nopinions and legal matters, research or development projects or results, sales, finances, products, suppliers, personnel\nperformance and compensation, plans for future development, marketing practices and financial forecasts and budgeting. You\nagree that disclosure of such Confidential Information would be detrimental to Emerson and agree that at no time following\ntermination of your employment with Emerson will you directly or indirectly disclose or cause the disclosure of any Confidential\nInformation to any person, firm, corporation, or entity no matter what the purpose. You further agree that you will not\ndirectly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing\nauthorities; communicate with your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or\nagents bind themselves in writing to the same non-disclosure obligation as set forth above; or, to respond to any lawfully issued\nsubpoena or order of a court of competent jurisdiction or legitimate discovery request pursuant to state or federal rules of civil\nprocedure. If any such subpoena, order of court or discovery request is received, you agree to send to Emerson’s General Counsel\nno later than two days after receipt via email to frank.steeves@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson’s General Counsel within a three day period following the Resignation Date all\nsuch Confidential Information, any other property of Emerson, and all copies thereof in your possession or control, whether in hard\ncopy or electronically stored, and whether or not stored on an Emerson-owned device. If after such three day period you determine\nthat you have any Confidential Information or other property of Emerson in your possession, you shall immediately deliver such\nConfidential Information or property to the office of Emerson’s General Counsel.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson’s Chief Executive Officer and General Counsel,\ndirectly or indirectly for a period of three years from your Resignation Date (“Restricted Period”):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in any person, firm, corporation,\nor other entity engaged in business activities anywhere in the world that directly or indirectly competes with the businesses of\nEmerson as conducted on the date of this Agreement or as contemplated on the date hereof to be developed during the Restricted\nPeriod;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other\ninvestment vehicle however structured that either directly or indirectly or through portfolio company investments or otherwise\ncompetes with the businesses of Emerson as conducted on the date hereof or as contemplated on the date hereof to be developed\nduring the Restrictive Period;\n(c) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(d) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with\nEmerson;\n(e) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or\nconsultant of Emerson to leave employment or separate his or her relationship with Emerson or induce any such person to do\nanything which you are restricted from doing by reason of this Agreement; or\n(f) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is\nlisted on any national securities exchange, traded over-the-counter or that is otherwise available for investment by the general\npublic as long as you have no relationship with the issuer of such securities or any affiliate thereof, except as an investor.\nCraig W. Ashmore\nNovember 11, 2013\nPage 3\n4. REASONABLENESS, ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of\nEmerson in light of your in-depth knowledge of Emerson’s global business, your present and prior positions with Emerson, and your\naccess to Confidential Information relating to all of Emerson’s businesses. You also affirm your agreement to comply with all\nexisting non-compete, invention, non-disclosure and non-solicitation obligations you have with Emerson, including specifically your\nobligations under the Emerson incentive shares plans and award agreements, Emerson stock option plans and option agreements,\nand Emerson non-qualified supplemental executive retirement plan. You agree that your obligations set forth in this Agreement are\nin addition to and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct\nconflict, in which case the terms of this Agreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to\nyou herein but for the restrictions in this Agreement. You agree that a violation of these Agreements would result in irreparable\ninjury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other\nremedies to which Emerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable\nattorneys’ fees Emerson incurs to seek enforcement of any provision contained herein, whether or not litigation is commenced.\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits\nprovided to you under this Agreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of\nthe economic value of all benefits provided to you under this Agreement prior to the date of breach. You agree that this liquidated\ndamage provision and other remedies are necessary because substantial damage will accrue to Emerson as the result of a breach,\nand the amount of damages attributable to such breach may be uncertain and difficult to calculate. Payment of liquidated damages\nshall in no way affect the settlement and release of claims by you, nor shall payment of liquidated damages limit the enforceability of\nany clause in this Agreement or the ability of Emerson to seek damages and any other relief from you as provided under applicable\nlaw.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective directors, officers, employees and agents from any and all claims or\nliability of whatever nature and will execute on your Resignation Date the Release Agreement attached hereto as Exhibit A. If the\nRelease Agreement attached as Exhibit A is not executed by you, this Agreement shall be null and void. You also agree that no\nbenefits or other compensation described in this Agreement shall be paid or provided to you until expiration of the seven-day\nrevocation period set forth in Paragraph 3(d) of the Release Agreement.\n6. RESIGNATION\nOn or before the Resignation Date, you agree to execute the Officer Resignation Form attached hereto as Exhibit B.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson’s Clawback Policy, which provides: “If the Board determines that an executive\nofficer has engaged in intentional misconduct that caused or partially caused a material restatement of the Company's consolidated\nfinancial statements, the Board may, to the extent permitted by law and to the extent it determines that it is in the Company's best\ninterests to do so, require reimbursement to the Company of, or reduce or cancel, that portion of annual incentive or any long-term\nincentive compensation paid or credited to such executive officer on or after October 1, 2009\nCraig W. Ashmore\nNovember 11, 2013\nPage 4\nthat would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term “executive officer” means any officer of the Company who is required to file\nreports pursuant to Section 16 of the Securities Exchange Act of 1934.”\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon compliance with your obligations and agreements in this Agreement, and also conditioned upon\nyour service from the Resignation Date until September 30, 2014 as a consultant to Emerson, as such service may be requested or\nrequired by Emerson, you will receive the compensation and benefits outlined below. The period during which you shall serve as a\nconsultant to Emerson may be terminated at any time by agreement of you and Emerson. The compensation and benefits set forth\nherein are in lieu of and replace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will receive a monthly consulting fee of $47,917 through the earlier of September 30, 2014 or the date you find\nemployment elsewhere (the “Consulting Period”). Emerson will reimburse up to $40,000 of your expenses incurred during the\nConsulting Period related to the services.\nB. You will be eligible to receive your earned fiscal 2013 extra salary payment, paid at the normal time, as previously\ndetermined pursuant to customary Emerson practice and the terms of the annual incentive plan.\nC. After the Resignation Date and during the Consulting Period, you and all qualified beneficiaries may continue to\nparticipate in Emerson’s health care coverage on the same terms and conditions as employees of Emerson. After the Consulting\nPeriod, you and all qualified beneficiaries may elect to continue health care coverage under Emerson’s group health care plan\npursuant to the Consolidated Omnibus Budget Reconciliation Act (‘COBRA”), which coverage would otherwise end. You will receive\na separate letter at that time regarding continued participation under COBRA. Any participation by you and any qualified\nbeneficiaries under COBRA after the end of the Consulting Period shall be at your sole cost and expense.\nD. After the Resignation Date, you may continue coverage under the former split dollar and group universal life policies\nowned by you. Until the last day of the Consulting Period, Emerson will pay premiums on such policies in the same manner and to\nthe same extent that it has prior to the Resignation Date. After the end of the Consulting Period, you may continue coverage under\nsuch policies at your expense.\nE. Through the end of the Consulting Period, Emerson will continue to pay any amounts it is currently paying for your\nleased automobile and for dues to clubs in which you are currently a member. After the Consulting Period, Emerson shall have no\nobligation for any of these payments. Emerson will pay up to $10,000 for tax planning and compliance services related to calendar\nyear 2013. Emerson will have no other obligations for financial planning payments after the Resignation Date.\nF. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation\nCommittee of the Board of Directors, all options previously awarded to you under Emerson’s stock option plans that are currently\nexercisable will remain exercisable for three months after the Resignation Date. Those that are not currently exercisable will be\ncancelled as of the Resignation Date. Any stock options that are not exercised by you within three months after the Resignation\nDate will be cancelled.\nCraig W. Ashmore\nNovember 11, 2013\nPage 5\nG. The Compensation Committee has determined that you will remain eligible to receive, subject to the other applicable\nterms of Emerson’s Incentive Shares Plans and the applicable Performance Shares Program, including those concerning\nachievement of the performance objective(s) under the Program, (1) the previously determined earned payout of the performance\nshares under the 2010 Performance Shares Program, and (2) a 25% pro rata earned payout of the performance shares awarded to\nyou under the 2013 Performance Shares Program, subject to achievement of the performance objectives under the Program, and\nbased on the actual payout percentage applicable to all participants in the Program. Payments under the 2010 and 2013\nPerformance Shares Programs will be made at the respective times provided therefor under the Programs.\nH. Pursuant to the terms of Emerson’s Incentive Shares Plans, the Compensation Committee has approved that your\nawards of restricted shares will continue to vest at the times specified in such awards, October 4, 2015, October 3, 2016, May 6,\n2018 and October 1, 2022, respectively, and that you will continue to receive dividends on such restricted share awards to the\nextent provided in the applicable award agreements.\nI. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan and the related\nEmerson Electric Co. Pension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits\nyou would have been eligible to receive under the all-employee Retirement Plan were it not for the compensation limitations\nimposed under the Internal Revenue Code (“Code”)), you will be eligible to receive your monthly pension benefits accrued to date\nunder each of these plans, subject to the provisions of each such plan. Payments of your pension benefits will be paid monthly in\nthe manner and times set forth in the plans, subject to the terms and conditions of the plans.\nJ. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k)\nplan) to the extent permitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the\nEmerson Electric Co. Savings Investment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of such plans and\nyour distribution elections thereunder. Distributions from these plans which are not “grandfathered” under Section 409A of the Code\nshall be deferred to the extent required by Code Section 409A.\nK. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares\nprogram payouts, vesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to\nincome tax and other withholdings as required by law.\nL. Except as provided for specifically above, after the Resignation Date you will not be permitted to continue participating in\nany Emerson benefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the\ndisability insurance program.\nM. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an\nactivity that you are prohibited from engaging in during the Restricted Period, Emerson shall be relieved of all further obligations\nwith respect to the payments or benefits described herein.\nThis Agreement is deemed to be entered in the State of Missouri and, without regard for conflict of laws principles, shall be\ninterpreted in accordance with and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or\nproceeding with respect to this Agreement shall be brought and determined in the courts of the County of St. Louis, State of\nMissouri or of the United States\nCraig W. Ashmore\nNovember 11, 2013\nPage 6\nof America for the Eastern District of Missouri and that you submit to the jurisdiction of such courts with respect to any such action\nor proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding\nthis Agreement or any of the documents referenced in this Agreement, including the Release Agreement.\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 10th\nDAY OF November, 2013:\n/sl Craig W. Ashmore\nName: Craig W. Ashmore\nExhibit A - RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. (“Employer”)\nand Craig W. Ashmore (“Employee”). In consideration of the mutual promises and covenants contained in the Letter Agreement and\nherein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do\nhereby agree as follows:\n1. Employment. Employee was previously employed by Employer. The employment of Employee with Employer\nhas ended as a result of Employee’s resignation effective November 11, 2013.\n2. Release. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and\nthis Release Agreement, Employee, for himself and his heirs, agrees to and does hereby waive, covenant not to sue, releases, and\nforever discharges Employer, and each and every one of Employer’s parent, subsidiary and other affiliated entities (the “Emerson\nEntities”), and their respective agents, employees, officers, directors, stockholders, managers, members, successors,\npredecessors, contractors, attorneys, agents and assigns (collectively referred to as “Released Parties”), from and with respect to\nall matters, claims, charges, demands, damages, causes of action, debts, liabilities, controversies, judgments, and suits of every\nkind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date this Release Agreement becomes\neffective and including, but not limited to, those in any way related to Employee and/or Employee’s separation from employment.\nThis release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against\nReleased Parties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury,\nwrongful discharge, emotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or\nany other class protected by law), harassment, retaliation, claims for workers' compensation benefits, claims for unpaid wages, any\nclaim under the Age Discrimination in Employment Act, 29 U.S.C. 8621 et seq., 42 U.S.C. 81981, Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S.C. §2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. §1981, the Americans With Disabilities Act, 42\nU.S.C. 812101, et seq., the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 81001, et seq., the Family\nMedical Leave Act, 29 U.S.C. § 2601 et seq., any claim under the Fair Labor Standards Act of 1938, 29 U.S.C. 8201 et seq., the\nMissouri Human Rights Act, RSMo §213.010 et seq.; any claim under common law, and any claim under any federal, state or local\nstatute, regulation, constitution, order or executive order. This release also expressly includes, but is not limited to, any claim for\nattorneys' fees or costs. Employee affirms and warrants that he has made no charge, claim, complaint, or otherwise initiated action\nagainst Employer in any government agency, court or other forum and that no such matter is pending. Employee further affirms and\nwarrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer\nor director of Employer engaging in any act related to the performance of their duties at or for Employer which Employee knows or\nbelieves to be illegal and Employee acknowledges that he has never complained of any unlawful conduct by Employer. Employee\nhereby releases and relinquishes any and all rights to employment, reinstatement and any right to future employment with Employer\nor the Emerson Entities. Employee also waives and releases any right or ability to be a class or collective action representative or to\notherwise participate in any putative or certified class, collective or multi-party action or proceeding based on a claim in which\nEmployer or any one or more Released Parties is a party. Notwithstanding the foregoing, Employee is not waiving any right to\nenforce any term or provision of the Letter Agreement.\nCraig W. Ashmore\nNovember 11, 2013\nPage 2\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or\nclaims arising under the Age Discrimination in Employment Act of 1967 (“ADEA”) and:\n(a) Employee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in\nexchange for the consideration provided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is\notherwise entitled; and\n(b) Employee acknowledges that Employer has, and does, hereby expressly advise him to consult with an\nattorney of his choosing, at his own expense, prior to executing this Release Agreement; and\n() Employee agrees that he has been given a period of not less than twenty-one (21) days from receipt of\nthis document within which to consider this Release Agreement; and\n(d) Employee acknowledges he has been advised by Employer that he is entitled to revoke (in the event he\nexecutes this Release Agreement) his waiver of rights or claims arising under the ADEA within seven (7) days after executing this\nRelease Agreement and that said waiver will not and does not become effective or enforceable until the seven (7) day revocation\nperiod has expired; and\n(e) The parties agree that should Employee exercise his right to revoke the waiver under subpart (d) of this\nSection 3, this entire Release Agreement and Letter Agreement, and their obligations, are null and void and of no effect and,\nnotwithstanding any other provision of this Release Agreement or the Letter Agreement to the contrary, no severance pay or other\nconsideration shall be due, owing, paid or provided until the seven (7) day revocation period has expired without revocation by\nEmployee. Notice of Employee’s decision to revoke the waiver may be sent to Emerson’s General Counsel by fax (at 314-553-\n3025), email (to frank.steeves@emerson.com) or hand-delivery.\n1. Remedies. Without limiting the remedies available to Employer for any breach of this Release Agreement,\nEmployee agrees that any breach of either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any\nfuture payments to be made to, or benefits to be provided to, Employee and all other remedies and relief as specifically set forth\nfurther in the Letter Agreement shall be available to Employer.\n2. Successors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties’ respective\nheirs, administrators, representatives, executors, successors, and assigns.\n3. Review by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that\nEmployee was advised of his right to review this Release Agreement with an attorney at his expense, and that Employee fully\nunderstands the meaning and intent of this Release Agreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Craig W. Ashmore\nCraig W. Ashmore\nDate:\n11/10/13\nExhibit B - OFFICER RESIGNATION FORM\nI, Craig W. Ashmore, do hereby submit my resignation, effective November 11, 2013, from my position as Executive Vice President\n- Planning and Development and as an Advisory Director of Emerson Electric Co., as well as from any other positions | may hold\nwith any subsidiaries or affiliates of Emerson.\n/sl Craig W. Ashmore 11/10/2013\nCraig W. Ashmore Date	EX-10.1 exhibit101cwashmore.htm EXHIBIT 10.1\nEmerson\n8000 West Florissant Avenue\nP.O. Box 4100\nSt. Louis, MO 63136-8506\nUSA\nNovember 11, 2013\nCraig W. Ashmore\n226 Conway Hill Road\nSt. Louis, MO 63141\nDear Mr. Ashmore:\nThis Letter Agreement ("Agreement") sets out the terms of your resignation as an employee, officer and/or director of\nEmerson Electric Co. Throughout this Agreement the term "Emerson" means Emerson Electric Co. together with any and all other\nentities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your resignation and the terms of this agreement\nare effective as of November 11, 2013 ("Resignation Date").\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON- DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment\nor resignation of employment with Emerson or the terms of this Agreement If inquiry is made by anyone regarding your\nemployment or separation of employment from Emerson, you agree to state only "I have resigned my employment and officer and\ndirector positions with Emerson effective November 11, 2013 and look forward to further career opportunities. I have enjoyed my\nmany years of employment with Emerson, but it is time for me personally to move on. Emerson is a tremendous company and I\nwish it well."\nYou also agree not, directly or indirectly, to disparage or make or cause to be made, any comments, statements, or communications\nof any sort to anyone whether true or false, that may reasonably be considered to be derogatory or detrimental to Emerson or any\nReleased Parties (as defined in the Release Agreement attached as Exhibit A), their reputations, or their services. You\nacknowledge that Emerson has a good reputation locally, nationally and internationally, and you will take no action nor engage\nin\nany conduct that could injure or diminish that good reputation.\n2. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson's trade secrets and confidential and\nproprietary information ("Confidentia Information"), which includes or concerns, but is not limited to, attorney/client communications,\nglobal strategic communications, information pertaining to strategic planning and strategy, mergers and acquisitions, corporate\ntechnology, customers, pricing, business methods and operations, business policies, procedures, practices and techniques, legal\nopinions and legal matters, research or development projects or results, sales, finances, products, suppliers, personne\nperformance and compensation, plans for future development, marketing practices and financial forecasts and budgeting. You\nagree that disclosure of such Confidential Information would be detrimental to Emerson and agree that at no time following\ntermination of your employment with Emerson will you directly or indirectly disclose or cause the disclosure of any Confidential\nInformation to any person, firm, corporation, or entity no matter what the purpose. You further agree that you will not\ndirectly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing\nauthorities; communicate with your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys\nor\nagents bind themselves in writing to the same non-disclosure obligation as set forth above; or, to respond to any lawfully issued\nsubpoena or order of a court of competent jurisdiction or legitimate discovery request pursuant to state or federal rules of civil\nprocedure. If any such subpoena, order of court or discovery request is received, you agree to send to Emerson's General Counsel\nno later than two days after receipt via email to rank.steeves@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson's General Counsel within a three day period following the Resignation Date all\nsuch Confidential Information, any other property of Emerson, and all copies thereof in your possession or control, whether in hard\ncopy or electronically stored, and whether or not stored on an Emerson-owned device. If after such three day period you determine\nthat you have any Confidential Information or other property of Emerson in your possession, you shall immediately deliver such\nConfidential Information or property to the office of Emerson's General Counsel.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson's Chief Executive Officer and General Counsel,\ndirectly or indirectly for a period of three years from your Resignation Date ("Restricted Period"):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in any person, firm, corporation,\nor other entity engaged in business activities anywhere in the world that directly or indirectly competes with the businesses of\nEmerson as conducted on the date of this Agreement or as contemplated on the date hereof to be developed during the Restricted\nPeriod;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other\ninvestment vehicle however structured that either directly or indirectly or through portfolio company investments or otherwise\ncompetes with the businesses of Emerson as conducted on the date hereof or as contemplated on the date hereof to be developed\nduring the Restrictive Period;\n(c) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(d) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with\nEmerson;\n(e) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or\nconsultant of Emerson to leave employment or separate his or her relationship with Emerson or induce any such person to do\nanything which you are restricted from doing by reason of this Agreement; or\n(f) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is\nlisted on any national securities exchange, traded over-the-counter or that is otherwise available for investment by the general\npublic as long as you have no relationship with the issuer of such securities or any affiliate thereof, except as an investor.\nCraig W. Ashmore\nNovember 11, 2013\nPage 3\n4. REASONABLENESS,. ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of\nEmerson in light of your in-depth knowledge of Emerson's globa business, your present and prior positions with Emerson, and your\naccess to Confidential Information relating to all of Emerson's businesses. You also affirm your agreement to comply with all\nexisting non-compete, invention non-disclosure and non-solicitation obligations you have with Emerson, including specifically your\nobligations under the Emerson incentive shares plans and award agreements, Emerson stock option plans and option agreements,\nand Emerson non-qualified supplemental executive retirement plan. You agree that your obligations set forth in this Agreement are\nin\naddition to and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct\nconflict, in which case the terms of this Agreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to\nyou herein but for the restrictions in this Agreement. You agree that a violation of these Agreements would result in irreparable\ninjury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other\nremedies to which Emerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable\nattorneys' fees Emerson incurs to seek enforcement of any provision contained herein, whether or not litigation is commenced.\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits\nprovided to you under this Agreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half\nof\nthe economic value of all benefits provided to you under this Agreement prior to the date of breach. You agree that this liquidated\ndamage provision and other remedies are necessary because substantia damage will accrue to Emerson as the result of a breach,\nand the amount of damages attributable to such breach may be uncertain and difficult to calculate. Payment of liquidated damages\nshall\nin\nno\nway\naffect\nthe\nsettlement\nand\nrelease\nof\nclaims\nby\nyou,\nnor\nshall\npayment\nof\nliquidated\ndamages\nlimit\nthe\nenforceability\nof\nany clause in this Agreement or the ability of Emerson to seek damages and any other relief from you as provided under applicable\nlaw.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective directors, officers, employees and agents from any and all claims or\nliability of whatever nature and will execute on your Resignation Date the Release Agreement attached hereto as Exhibit A. If the\nRelease Agreement attached as Exhibit A is not executed by you, this Agreement shall be null and void. You also agree that no\nbenefits or other compensation described in this Agreement shall be paid or provided to you until expiration of the seven-day\nrevocation period set forth in Paragraph 3(d) of the Release Agreement.\n6. RESIGNATION\nOn or before the Resignation Date, you agree to execute the Officer Resignation Form attached hereto as Exhibit B.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson's Clawback Policy, which provides: "If the Board determines that an executive\nofficer has engaged in intentional misconduct that caused or partially caused a material restatement of the Company's consolidated\nfinancial statements, the Board may, to the extent permitted by law and to the extent it determines that it is in the Company's best\ninterests to do so, require reimbursement to the Company of, or reduce or cancel, that portion of annual incentive or any long-term\nincentive compensation paid or credited to such executive officer on or after October 1, 2009\nCraig W. Ashmore\nNovember 11, 2013\nPage 4\nthat would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly\nstated.\nFor\npurposes\nof\nthis\npolicy,\nthe\nterm\n"executive\nofficer"\nmeans\nany\nofficer\nof\nthe\nCompany\nwho\nis\nrequired\nto\nfile\nreports pursuant to Section 16 of the Securities Exchange Act of 1934."\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon compliance with your obligations and agreements in this Agreement, and also conditioned upon\nyour service from the Resignation Date until September 30, 2014 as a consultant to Emerson, as such service may be requested or\nrequired by Emerson, you will receive the compensation and benefits outlined below. The period during which you shall serve as a\nconsultant to Emerson may be terminated at any time by agreement of you and Emerson. The compensation and benefits set forth\nherein are in lieu of and replace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will receive a monthly consulting fee of $47,917 through the earlier of September 30, 2014 or the date you find\nemployment elsewhere (the "Consulting Period"). Emerson will reimburse up to $40,000 of your expenses incurred during the\nConsulting Period related to the services.\nB.\nYou will be eligible to receive your earned fisca 2013 extra salary payment, paid at the normal time, as previously\ndetermined pursuant to customary Emerson practice and the terms of the annual incentive plan.\nC. After the Resignation Date and during the Consulting Period, you and all qualified beneficiaries may continue to\nparticipate in Emerson's health care coverage on the same terms and conditions as employees of Emerson. After the Consulting\nPeriod, you and all qualified beneficiaries may elect to continue health care coverage under Emerson's group health care plan\npursuant to the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), which coverage would otherwise end. You will receive\na separate letter at that time regarding continued participation under COBRA. Any participation by you and any qualified\nbeneficiaries under COBRA after the end of the Consulting Period shall be at your sole cost and expense.\nD. After the Resignation Date, you may continue coverage under the former split dollar and group universal life policies\nowned by you. Until the last day of the Consulting Period, Emerson will pay premiums on such policies in the same manner and to\nthe same extent that it has prior to the Resignation Date. After the end of the Consulting Period, you may continue coverage under\nsuch policies at your expense.\nE. Through the end of the Consulting Period, Emerson will continue to pay any amounts it is currently paying for your\nleased automobile and for dues to clubs in which you are currently a member. After the Consulting Period, Emerson shall have no\nobligation for any of these payments. Emerson will pay up to $10,000 for tax planning and compliance services related to calendar\nyear 2013. Emerson will have no other obligations for financial planning payments after the Resignation Date.\nF. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation\nCommittee of the Board of Directors, all options previously awarded to you under Emerson's stock option plans that are currently\nexercisable\nwill\nremain\nexercisable\nfor\nthree\nmonths\nafter\nthe\nResignation\nDate.\nThose\nthat\nare\nnot\ncurrently\nexercisable\nwill\nbe\ncancelled as of the Resignation Date. Any stock options that are not exercised by you within three months after the Resignation\nDate will be cancelled.\nCraig W. Ashmore\nNovember 11, 2013\nPage 5\nG. The Compensation Committee has determined that you will remain eligible to receive, subject to the other applicable\nterms of Emerson's Incentive Shares Plans and the applicable Performance Shares Program, including those concerning\nachievement of the performance objective(s) under the Program, (1) the previously determined earned payout of the performance\nshares under the 2010 Performance Shares Program, and (2) a 25% pro rata earned payout of the performance shares awarded to\nyou under the 2013 Performance Shares Program, subject to achievement of the performance objectives under the Program, and\nbased on the actual payout percentage applicable to all participants in the Program. Payments under the 2010 and 2013\nPerformance Shares Programs will be made at the respective times provided therefor under the Programs.\nH. Pursuant to the terms of Emerson's Incentive Shares Plans, the Compensation Committee has approved that your\nawards of restricted shares will continue to vest at the times specified in such awards, October 4, 2015, October 3, 2016, May 6,\n2018 and October 1, 2022, respectively, and that you will continue to receive dividends on such restricted share awards to the\nextent provided in the applicable award agreements.\nI. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan and the related\nEmerson Electric Co. Pension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits\nyou would have been eligible to receive under the all-employee Retirement Plan were it not for the compensation limitations\nimposed under the Internal Revenue Code ("Code")), you will be eligible to receive your monthly pension benefits accrued to date\nunder each of these plans, subject to the provisions of each such plan. Payments of your pension benefits will be paid monthly in\nthe manner and times set forth in the plans, subject to the terms and conditions of the plans.\nJ. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k)\nplan) to the extent permitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the\nEmerson Electric Co. Savings Investment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of such plans and\nyour distribution elections thereunder. Distributions from these plans which are not "grandfathered" under Section 409A of the Code\nshall be deferred to the extent required by Code Section 409A.\nK. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares\nprogram payouts, vesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to\nincome tax and other withholdings as required by law.\nL. Except as provided for specifically above, after the Resignation Date you will not be permitted to continue participating in\nany Emerson benefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the\ndisability insurance program.\nM. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an\nactivity that you are prohibited from engaging in during the Restricted Period, Emerson shall be relieved of all further obligations\nwith respect to the payments or benefits described herein.\nThis Agreement is deemed to be entered in the State of Missouri and, without regard for conflict of laws principles, shall be\ninterpreted in accordance with and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or\nproceeding with respect to this Agreement shall be brought and determined in the courts of the County of St. Louis, State of\nMissouri or of the United States\nCraig W. Ashmore\nNovember 11, 2013\nPage 6\nof America for the Eastern District of Missouri and that you submit to the jurisdiction of such courts with respect to any such action\nor proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding\nthis Agreement or any of the documents referenced in this Agreement, including the Release Agreement.\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below.\nSincerely,\nIs/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 10th\nDAY OF November, 2013:\nIs/ Craig W. Ashmore\nName: Craig W. Ashmore\nExhibit A RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. ("Employer")\nand Craig W. Ashmore ("Employee"). In consideration of the mutual promises and covenants contained in the Letter Agreement and\nherein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do\nhereby agree as follows:\n1.\nEmployment. Employee was previously employed by Employer. The employment of Employee with Employer\nhas ended as a result of Employee's resignation effective November 11, 2013\n2.\nRelease. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and\nthis Release Agreement, Employee, for himself and his heirs, agrees to and does hereby waive, covenant not to sue, releases, and\nforever discharges Employer, and each and every one of Employer's parent, subsidiary and other affiliated entities (the "Emerson\nEntities"), and their respective agents, employees, officers, directors, stockholders, managers, members, successors,\npredecessors, contractors, attorneys, agents and assigns (collectively referred to as "Released Parties"), from and with respect to\nall matters, claims, charges, demands, damages, causes of action, debts, liabilities, controversies, judgments, and suits of every\nkind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date this Release Agreement becomes\neffective and including, but not limited to, those in any way related to Employee and/or Employee's separation from employment.\nThis release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against\nReleased Parties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury,\nwrongful discharge, emotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability,\nor\nany other class protected by law), harassment retaliation, claims for workers' compensation benefits, claims for unpaid wages, any\nclaim under the Age Discrimination in Employment Act, 29 U.S.C. 8621 et seq., 42 U.S.C. $1981, Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S.C. 82000e et seq., the Civil Rights Act of 1866, 42 U.S.C. 81981, the Americans With Disabilities\nAct,\n42\nU.S.C. 812101, et seq., the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 81001, et seq., the Family\nMedical Leave Act, 29 U.S.C. s 2601 et seq., any claim under the Fair Labor Standards Act of 1938, 29 U.S.C. 8201 et seq., the\nMissouri Human Rights Act, RSMo 8213.010 et seq.; any claim under common law, and any claim under any federal, state or local\nstatute, regulation, constitution, order or executive order. This release also expressly includes, but is not limited to, any claim for\nattorneys' fees or costs. Employee affirms and warrants that he has made no charge, claim, complaint, or otherwise initiated action\nagainst\nEmployer\nin\nany\ngovernment\nagency,\ncourt\nor\nother\nforum\nand\nthat\nno\nsuch\nmatter\nis\npending.\nEmployee\nfurther\naffirms\nand\nwarrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no persona knowledge of any employee, officer\nor\ndirector\nof\nEmployer\nengaging\nin\nany\nact\nrelated\nto\nthe\nperformance\nof\ntheir\nduties\nat\nor\nfor\nEmployer\nwhich\nEmployee\nknows\nor\nbelieves to be illegal and Employee acknowledges that he has never complained of any unlawful conduct by Employer. Employee\nhereby releases and relinquishes any and all rights to employment, reinstatement and any right to future employment with Employer\nor the Emerson Entities. Employee also waives and releases any right or ability to be a class or collective action representative or\nto\notherwise participate in any putative or certified class, collective or multi-party action or proceeding based on a claim in which\nEmployer or any one or more Released Parties is a party. Notwithstanding the foregoing, Employee is not waiving any right to\nenforce any term or provision of the Letter Agreement.\nCraig W. Ashmore\nNovember 11, 2013\nPage 2\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or\nclaims arising under the Age Discrimination in Employment Act of 1967 ("ADEA") and:\n(a)\nEmployee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is\nin\nexchange for the consideration provided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is\notherwise entitled; and\n(b)\nEmployee acknowledges that Employer has, and does, hereby expressly advise him to consult with an\nattorney of his choosing, at his own expense, prior to executing this Release Agreement; and\n(c)\nEmployee agrees that he has been given a period of not less than twenty-one (21) days from receipt of\nthis document within which to consider this Release Agreement; and\n(d)\nEmployee acknowledges he has been advised by Employer that he is entitled to revoke (in the event\nhe\nexecutes this Release Agreement) his waiver of rights or claims arising under the ADEA within seven (7) days after executing this\nRelease Agreement and that said waiver will not and does not become effective or enforceable until the seven (7) day revocation\nperiod has expired; and\n(e)\nThe parties agree that should Employee exercise his right to revoke the waiver under subpart (d) of this\nSection 3, this entire Release Agreement and Letter Agreement, and their obligations, are null and void and of no effect and,\nnotwithstanding any other provision of this Release Agreement or the Letter Agreement to the contrary, no severance pay or other\nconsideration shall be due, owing, paid or provided until the seven (7) day revocation period has expired without revocation by\nEmployee. Notice of Employee's decision to revoke the waiver may be sent to Emerson's General Counsel by fax (at 314-553-\n3025), email (to frank.steeves@emerson.com) or hand-delivery.\n1.\nRemedies. Without limiting the remedies available to Employer for any breach of this Release Agreement,\nEmployee agrees that any breach of either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any\nfuture payments to be made to, or benefits to be provided to, Employee and all other remedies and relief as specifically set forth\nfurther in the Letter Agreement shall be available to Employer.\n2.\nSuccessors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties' respective\nheirs, administrators, representatives, executors, successors, and assigns.\n3.\nReview by. Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that\nEmployee was advised of his right to review this Release Agreement with an attorney at his expense, and that Employee fully\nunderstands the meaning and intent of this Release Agreement and agrees to all of its terms.\nEMPLOYEE\nIs/ Craig W. Ashmore\nCraig W. Ashmore\nDate:\n11/10/13\nExhibit B - OFFICER RESIGNATION FORM\nI, Craig W. Ashmore, do hereby submit my resignation, effective November 11, 2013, from my position as Executive Vice President\n- Planning and Development and as an Advisory Director of Emerson Electric Co., as well as from any other positions I may hold\nwith any subsidiaries or affiliates of Emerson.\n/s/ Craig W. Ashmore\n11/10/2013\nCraig W. Ashmore\nDate	EX-10 .1 2 exhibit101cwashmore.htm EXHIBIT 10.1\nEmerson\n8000 West Florissant Avenue\nP.O . Box 4100\nSt. Louis, MO 63136-8506\nUSA\nNovember 11, 2013\nCraig W. Ashmore\n226 Conway Hill Road\nSt. Louis, MO 63141\nDear Mr. Ashmore:\nThis Letter Agreement (“Agreement”) sets out the terms of your resignation as an employee, officer and/or director of\nEmerson Electric Co. Throughout this Agreement the term “Emerson” means Emerson Electric Co. together with any and all other\nentities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your resignation and the terms of this agreement\nare effective as of November 11, 2013 (“Resignation Date”).\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON- DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment\nor resignation of employment with Emerson or the terms of this Agreement. If inquiry is made by anyone regarding your\nemployment or separation of employment from Emerson, you agree to state only “I have resigned my employment and officer and\ndirector positions with Emerson effective November 11, 2013 and look forward to further career opportunities. I have enjoyed my\nmany years of employment with Emerson, but it is time for me personally to move on. Emerson is a tremendous company and I\nwish it well.”\nYou also agree not, directly or indirectly, to disparage or make or cause to be made, any comments, statements, or communications\nof any sort to anyone - whether true or false, that may reasonably be considered to be derogatory or detrimental to Emerson or any\nReleased Parties (as defined in the Release Agreement attached as Exhibit A), their reputations, or their services. You\nacknowledge that Emerson has a good reputation locally, nationally and internationally, and you will take no action nor engage in\nany conduct that could injure or diminish that good reputation.\n2. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson’s trade secrets and confidential and\nproprietary information (“Confidential Information”), which includes or concerns, but is not limited to, attorney/client communications,\nglobal strategic communications, information pertaining to strategic planning and strategy, mergers and acquisitions, corporate\ntechnology, customers, pricing, business methods and operations, business policies, procedures, practices and techniques, legal\nopinions and legal matters, research or development projects or results, sales, finances, products, suppliers, personnel\nperformance and compensation, plans for future development, marketing practices and financial forecasts and budgeting. You\nagree that disclosure of such Confidential Information would be detrimental to Emerson and agree that at no time following\ntermination of your employment with Emerson will you directly or indirectly disclose or cause the disclosure of any Confidential\nInformation to any person, firm, corporation, or entity no matter what the purpose. You further agree that you will not\ndirectly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing\nauthorities; communicate with your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or\nagents bind themselves in writing to the same non-disclosure obligation as set forth above; or, to respond to any lawfully issued\nsubpoena or order of a court of competent jurisdiction or legitimate discovery request pursuant to state or federal rules of civil\nprocedure. If any such subpoena, order of court or discovery request is received, you agree to send to Emerson’s General Counsel\nno later than two days after receipt via email to frank.steeves@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson’s General Counsel within a three day period following the Resignation Date all\nsuch Confidential Information, any other property of Emerson, and all copies thereof in your possession or control, whether in hard\ncopy or electronically stored, and whether or not stored on an Emerson-owned device. If after such three day period you determine\nthat you have any Confidential Information or other property of Emerson in your possession, you shall immediately deliver such\nConfidential Information or property to the office of Emerson’s General Counsel.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson’s Chief Executive Officer and General Counsel,\ndirectly or indirectly for a period of three years from your Resignation Date (“Restricted Period”):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in any person, firm, corporation,\nor other entity engaged in business activities anywhere in the world that directly or indirectly competes with the businesses of\nEmerson as conducted on the date of this Agreement or as contemplated on the date hereof to be developed during the Restricted\nPeriod;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other\ninvestment vehicle however structured that either directly or indirectly or through portfolio company investments or otherwise\ncompetes with the businesses of Emerson as conducted on the date hereof or as contemplated on the date hereof to be developed\nduring the Restrictive Period;\n(c) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(d) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with\nEmerson;\n(e) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or\nconsultant of Emerson to leave employment or separate his or her relationship with Emerson or induce any such person to do\nanything which you are restricted from doing by reason of this Agreement; or\n(f) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is\nlisted on any national securities exchange, traded over-the-counter or that is otherwise available for investment by the general\npublic as long as you have no relationship with the issuer of such securities or any affiliate thereof, except as an investor.\nCraig W. Ashmore\nNovember 11, 2013\nPage 3\n4. REASONABLENESS, ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of\nEmerson in light of your in-depth knowledge of Emerson’s global business, your present and prior positions with Emerson, and your\naccess to Confidential Information relating to all of Emerson’s businesses. You also affirm your agreement to comply with all\nexisting non-compete, invention, non-disclosure and non-solicitation obligations you have with Emerson, including specifically your\nobligations under the Emerson incentive shares plans and award agreements, Emerson stock option plans and option agreements,\nand Emerson non-qualified supplemental executive retirement plan. You agree that your obligations set forth in this Agreement are\nin addition to and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct\nconflict, in which case the terms of this Agreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to\nyou herein but for the restrictions in this Agreement. You agree that a violation of these Agreements would result in irreparable\ninjury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other\nremedies to which Emerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable\nattorneys’ fees Emerson incurs to seek enforcement of any provision contained herein, whether or not litigation is commenced.\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits\nprovided to you under this Agreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of\nthe economic value of all benefits provided to you under this Agreement prior to the date of breach. You agree that this liquidated\ndamage provision and other remedies are necessary because substantial damage will accrue to Emerson as the result of a breach,\nand the amount of damages attributable to such breach may be uncertain and difficult to calculate. Payment of liquidated damages\nshall in no way affect the settlement and release of claims by you, nor shall payment of liquidated damages limit the enforceability of\nany clause in this Agreement or the ability of Emerson to seek damages and any other relief from you as provided under applicable\nlaw.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective directors, officers, employees and agents from any and all claims or\nliability of whatever nature and will execute on your Resignation Date the Release Agreement attached hereto as Exhibit A. If the\nRelease Agreement attached as Exhibit A is not executed by you, this Agreement shall be null and void. You also agree that no\nbenefits or other compensation described in this Agreement shall be paid or provided to you until expiration of the seven-day\nrevocation period set forth in Paragraph 3(d) of the Release Agreement.\n6. RESIGNATION\nOn or before the Resignation Date, you agree to execute the Officer Resignation Form attached hereto as Exhibit B.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson’s Clawback Policy, which provides: “If the Board determines that an executive\nofficer has engaged in intentional misconduct that caused or partially caused a material restatement of the Company's consolidated\nfinancial statements, the Board may, to the extent permitted by law and to the extent it determines that it is in the Company's best\ninterests to do so, require reimbursement to the Company of, or reduce or cancel, that portion of annual incentive or any long-term\nincentive compensation paid or credited to such executive officer on or after October 1, 2009\nCraig W. Ashmore\nNovember 11, 2013\nPage 4\nthat would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term “executive officer” means any officer of the Company who is required to file\nreports pursuant to Section 16 of the Securities Exchange Act of 1934.”\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon compliance with your obligations and agreements in this Agreement, and also conditioned upon\nyour service from the Resignation Date until September 30, 2014 as a consultant to Emerson, as such service may be requested or\nrequired by Emerson, you will receive the compensation and benefits outlined below. The period during which you shall serve as a\nconsultant to Emerson may be terminated at any time by agreement of you and Emerson. The compensation and benefits set forth\nherein are in lieu of and replace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will receive a monthly consulting fee of $47,917 through the earlier of September 30, 2014 or the date you find\nemployment elsewhere (the “Consulting Period”). Emerson will reimburse up to $40,000 of your expenses incurred during the\nConsulting Period related to the services.\nB. You will be eligible to receive your earned fiscal 2013 extra salary payment, paid at the normal time, as previously\ndetermined pursuant to customary Emerson practice and the terms of the annual incentive plan.\nC. After the Resignation Date and during the Consulting Period, you and all qualified beneficiaries may continue to\nparticipate in Emerson’s health care coverage on the same terms and conditions as employees of Emerson. After the Consulting\nPeriod, you and all qualified beneficiaries may elect to continue health care coverage under Emerson’s group health care plan\npursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), which coverage would otherwise end. You will receive\na separate letter at that time regarding continued participation under COBRA. Any participation by you and any qualified\nbeneficiaries under COBRA after the end of the Consulting Period shall be at your sole cost and expense.\nD. After the Resignation Date, you may continue coverage under the former split dollar and group universal life policies\nowned by you. Until the last day of the Consulting Period, Emerson will pay premiums on such policies in the same manner and to\nthe same extent that it has prior to the Resignation Date. After the end of the Consulting Period, you may continue coverage under\nsuch policies at your expense.\nE. Through the end of the Consulting Period, Emerson will continue to pay any amounts it is currently paying for your\nleased automobile and for dues to clubs in which you are currently a member. After the Consulting Period, Emerson shall have no\nobligation for any of these payments. Emerson will pay up to $10,000 for tax planning and compliance services related to calendar\nyear 2013. Emerson will have no other obligations for financial planning payments after the Resignation Date.\nF. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation\nCommittee of the Board of Directors, all options previously awarded to you under Emerson’s stock option plans that are currently\nexercisable will remain exercisable for three months after the Resignation Date. Those that are not currently exercisable will be\ncancelled as of the Resignation Date. Any stock options that are not exercised by you within three months after the Resignation\nDate will be cancelled.\nCraig W. Ashmore\nNovember 11, 2013\nPage 5\nG. The Compensation Committee has determined that you will remain eligible to receive, subject to the other applicable\nterms of Emerson’s Incentive Shares Plans and the applicable Performance Shares Program, including those concerning\nachievement of the performance objective(s) under the Program, (1) the previously determined earned payout of the performance\nshares under the 2010 Performance Shares Program, and (2) a 25% pro rata earned payout of the performance shares awarded to\nyou under the 2013 Performance Shares Program, subject to achievement of the performance objectives under the Program, and\nbased on the actual payout percentage applicable to all participants in the Program. Payments under the 2010 and 2013\nPerformance Shares Programs will be made at the respective times provided therefor under the Programs.\nH. Pursuant to the terms of Emerson’s Incentive Shares Plans, the Compensation Committee has approved that your\nawards of restricted shares will continue to vest at the times specified in such awards, October 4, 2015, October 3, 2016, May 6,\n2018 and October 1, 2022, respectively, and that you will continue to receive dividends on such restricted share awards to the\nextent provided in the applicable award agreements.\nI. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan and the related\nEmerson Electric Co. Pension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits\nyou would have been eligible to receive under the all-employee Retirement Plan were it not for the compensation limitations\nimposed under the Internal Revenue Code (“Code”)), you will be eligible to receive your monthly pension benefits accrued to date\nunder each of these plans, subject to the provisions of each such plan. Payments of your pension benefits will be paid monthly in\nthe manner and times set forth in the plans, subject to the terms and conditions of the plans.\nJ. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k)\nplan) to the extent permitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the\nEmerson Electric Co. Savings Investment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of such plans and\nyour distribution elections thereunder. Distributions from these plans which are not “grandfathered” under Section 409A of the Code\nshall be deferred to the extent required by Code Section 409A.\nK. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares\nprogram payouts, vesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to\nincome tax and other withholdings as required by law.\nL. Except as provided for specifically above, after the Resignation Date you will not be permitted to continue participating in\nany Emerson benefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the\ndisability insurance program.\nM. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an\nactivity that you are prohibited from engaging in during the Restricted Period, Emerson shall be relieved of all further obligations\nwith respect to the payments or benefits described herein.\n*\n*\n*\nThis Agreement is deemed to be entered in the State of Missouri and, without regard for conflict of laws principles, shall be\ninterpreted in accordance with and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or\nproceeding with respect to this Agreement shall be brought and determined in the courts of the County of St. Louis, State of\nMissouri or of the United States\nCraig W. Ashmore\nNovember 11, 2013\nPage 6\nof America for the Eastern District of Missouri and that you submit to the jurisdiction of such courts with respect to any such action\nor proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding\nthis Agreement or any of the documents referenced in this Agreement, including the Release Agreement.\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 10th\nDAY OF November, 2013:\n/s/ Craig W. Ashmore\nName: Craig W. Ashmore\nExhibit A - RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. (“Employer”)\nand Craig W. Ashmore (“Employee”). In consideration of the mutual promises and covenants contained in the Letter Agreement and\nherein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do\nhereby agree as follows:\n1.\nEmployment. Employee was previously employed by Employer. The employment of Employee with Employer\nhas ended as a result of Employee’s resignation effective November 11, 2013.\n2.\nRelease. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and\nthis Release Agreement, Employee, for himself and his heirs, agrees to and does hereby waive, covenant not to sue, releases, and\nforever discharges Employer, and each and every one of Employer’s parent, subsidiary and other affiliated entities (the “Emerson\nEntities”), and their respective agents, employees, officers, directors, stockholders, managers, members, successors,\npredecessors, contractors, attorneys, agents and assigns (collectively referred to as “Released Parties”), from and with respect to\nall matters, claims, charges, demands, damages, causes of action, debts, liabilities, controversies, judgments, and suits of every\nkind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date this Release Agreement becomes\neffective and including, but not limited to, those in any way related to Employee and/or Employee’s separation from employment.\nThis release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against\nReleased Parties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury,\nwrongful discharge, emotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or\nany other class protected by law), harassment, retaliation, claims for workers' compensation benefits, claims for unpaid wages, any\nclaim under the Age Discrimination in Employment Act, 29 U.S .C. §621 et seq., 42 U.S .C. §1981, Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S .C. §2000e et seq., the Civil Rights Act of 1866, 42 U.S .C. §1981, the Americans With Disabilities Act, 42\nU.S .C. §12101, et seq., the Employee Retirement Income Security Act of 1974, as amended, 29 U.S .C. §1001, et seq., the Family\nMedical Leave Act, 29 U.S .C. § 2601 et seq., any claim under the Fair Labor Standards Act of 1938, 29 U.S .C. §201 et seq., the\nMissouri Human Rights Act, RSMo §213.010 et seq.; any claim under common law, and any claim under any federal, state or local\nstatute, regulation, constitution, order or executive order. This release also expressly includes, but is not limited to, any claim for\nattorneys' fees or costs. Employee affirms and warrants that he has made no charge, claim, complaint, or otherwise initiated action\nagainst Employer in any government agency, court or other forum and that no such matter is pending. Employee further affirms and\nwarrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer\nor director of Employer engaging in any act related to the performance of their duties at or for Employer which Employee knows or\nbelieves to be illegal and Employee acknowledges that he has never complained of any unlawful conduct by Employer. Employee\nhereby releases and relinquishes any and all rights to employment, reinstatement and any right to future employment with Employer\nor the Emerson Entities. Employee also waives and releases any right or ability to be a class or collective action representative or to\notherwise participate in any putative or certified class, collective or multi-party action or proceeding based on a claim in which\nEmployer or any one or more Released Parties is a party. Notwithstanding the foregoing, Employee is not waiving any right to\nenforce any term or provision of the Letter Agreement.\nCraig W. Ashmore\nNovember 11, 2013\nPage 2\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or\nclaims arising under the Age Discrimination in Employment Act of 1967 (“ADEA”) and:\n(a)\nEmployee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in\nexchange for the consideration provided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is\notherwise entitled; and\n(b)\nEmployee acknowledges that Employer has, and does, hereby expressly advise him to consult with an\nattorney of his choosing, at his own expense, prior to executing this Release Agreement; and\n(c)\nEmployee agrees that he has been given a period of not less than twenty-one (21) days from receipt of\nthis document within which to consider this Release Agreement; and\n(d)\nEmployee acknowledges he has been advised by Employer that he is entitled to revoke (in the event he\nexecutes this Release Agreement) his waiver of rights or claims arising under the ADEA within seven (7) days after executing this\nRelease Agreement and that said waiver will not and does not become effective or enforceable until the seven (7) day revocation\nperiod has expired; and\n(e)\nThe parties agree that should Employee exercise his right to revoke the waiver under subpart (d) of this\nSection 3, this entire Release Agreement and Letter Agreement, and their obligations, are null and void and of no effect and,\nnotwithstanding any other provision of this Release Agreement or the Letter Agreement to the contrary, no severance pay or other\nconsideration shall be due, owing, paid or provided until the seven (7) day revocation period has expired without revocation by\nEmployee. Notice of Employee’s decision to revoke the waiver may be sent to Emerson’s General Counsel by fax (at 314-553-\n3025), email (to frank.steeves@emerson.com) or hand-delivery.\n1.\nRemedies. Without limiting the remedies available to Employer for any breach of this Release Agreement,\nEmployee agrees that any breach of either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any\nfuture payments to be made to, or benefits to be provided to, Employee and all other remedies and relief as specifically set forth\nfurther in the Letter Agreement shall be available to Employer.\n2.\nSuccessors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties’ respective\nheirs, administrators, representatives, executors, successors, and assigns.\n3.\nReview by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that\nEmployee was advised of his right to review this Release Agreement with an attorney at his expense, and that Employee fully\nunderstands the meaning and intent of this Release Agreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Craig W. Ashmore\nCraig W. Ashmore\nDate:\n11/10/13\nExhibit B - OFFICER RESIGNATION FORM\nI, Craig W. Ashmore, do hereby submit my resignation, effective November 11, 2013, from my position as Executive Vice President\n- Planning and Development and as an Advisory Director of Emerson Electric Co., as well as from any other positions I may hold\nwith any subsidiaries or affiliates of Emerson.\n/s/ Craig W. Ashmore\n11/10/2013\nCraig W. Ashmore\nDate
1aed5c5a68d56197c9c1756396fd2c0d.pdf	effective_date jurisdiction party term	EX-10.16 4 dex1016.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.16\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nCharles D. Denson (EMPLOYEE)\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries and affiliates. (NIKE):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon the EMPLOYEE’s advancement to the position of\nPresident of the NIKE brand and is a condition of such advancement.\nB. Over the course of EMPLOYEE’s employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop\nconfidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protective Information throughout the world. Protective Information of NIKE can be used to NIKE’s detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or otherwise,\nand for twelve (12) months thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business\nengaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other business\nwhich directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (“Competitor”). By way of illustration only,\nexamples of NIKE competitors include, but are not limited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics,\nSaucony, New Balance, Ralph Lauren/Polo Sport, B.U .M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports\nAuthority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and Titleist. This provision is subject to NIKE’s option to waive all or any\nportion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 1\nbreaches, until the resolution of the breach though private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the\nadditional compensation described in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE’s\nbreach. In the event EMPLOYEE receives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete\nhas been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE’s employment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly payment equal to one-\ntwelfth (1/12) of EMPLOYEE’s then current Annual Nike Income (defined herein to mean base salary and annual Performance Sharing Plan\nbonus calculated at 100% of EMPLOYEE’s targeted rate) while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly severance payment equal to one-twenty-\nfourth (1/24) of EMPLOYEE’s last monthly Annual Nike Income while the Restriction Period is in effect.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protectable Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format,\nof NIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and\nall information to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether\nin verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting\nthe foregoing, Protected Information includes information relating to NIKE’s research and development activities, its intellectual property and\nthe filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation,\nmanufacturing processes and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of\ntheir personal portfolio copies of the employees’ original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be\nby clear and convincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 2\nand will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE’s employment\nwith NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE. Specifically,\nbut not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other\nuse whatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security\nprecautions and such other actions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected\nInformation in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE’s possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or\ninvalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 3\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE’s employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue\nfor any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE\nNIKE, Inc.\nBy:\n/s/ CHARLES D. DENSON\nBy: /s/ PHILIP H. KNIGHT\nName: Charles D. Denson\nTitle: President, NIKE Brand\nName: Philip H. Knight\nTitle: President & CEO\nDATE: 3.26.01\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 4	EX-10.16 4 dex1016.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.16\nCOVENANT NOT TO COMPETE\nAND NON-DISCIL.OSURE AGREEMENT\nPARTIES:\nCharles D. Denson (EMPLOYEE)\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries and affiliates. (NIKE):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon the EMPLOYEE’s advancement to the position of\nPresident of the NIKE brand and is a condition of such advancement.\nB. Over the course of EMPLOYEE’s employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop\nconfidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information™). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protective Information throughout the world. Protective Information of NIKE can be used to NIKE’s detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n() Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or otherwise,\nand for twelve (12) months thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business\nengaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other business\nwhich directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (“Competitor”). By way of illustration only,\nexamples of NIKE competitors include, but are not limited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics,\nSaucony, New Balance, Ralph Lauren/Polo Sport, B.U.M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports\nAuthority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and Titleist. This provision is subject to NIKE’s option to waive all or any\nportion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 1\nbreaches, until the resolution of the breach though private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the\nadditional compensation described in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE’s\nbreach. In the event EMPLOYEE receives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete\nhas been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE’s employment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly payment equal to one-\ntwelfth (1/12) of EMPLOYEE'’s then current Annual Nike Income (defined herein to mean base salary and annual Performance Sharing Plan\nbonus calculated at 100% of EMPLOYEE’s targeted rate) while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly severance payment equal to one-twenty-\nfourth (1/24) of EMPLOYEE’s last monthly Annual Nike Income while the Restriction Period is in effect.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protectable Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format,\nof NIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and\nall information to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether\nin verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting\nthe foregoing, Protected Information includes information relating to NIKE’s research and development activities, its intellectual property and\nthe filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation,\nmanufacturing processes and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of\ntheir personal portfolio copies of the employees’ original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be\nby clear and convincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information\n \nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 2\nand will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE’s employment\nwith NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE. Specifically,\nbut not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other\nuse whatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security\nprecautions and such other actions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected\nInformation in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE’s possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8. General Provisions.\n(@) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or\ninvalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 3\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE’s employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue\nfor any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE NIKE, Inc.\nBy: /s/  CHARLES D. DENSON By: /s/ PHILIP H. KNIGHT\nName: Charles D. Denson Name: Philip H. Knight\nTitle: President, NIKE Brand Title: President & CEO\nDATE: 3.26.01\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 4	EX-10.16 4 lex1016.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.16\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nCharles D. Denson (EMPLOYEE)\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries and affiliates. (NIKE):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon the EMPLOYEE'S advancement to the position of\nPresident of the NIKE brand and is a condition of such advancement.\nB. Over the course of EMPLOYEE'S employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop\nconfidential information peculiar to NIKE's business and not generally known to the public as defined below ("Protected Information"). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company\nC. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protective Information throughout the world. Protective Information of NIKE can be used to NIKE's detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE'S employment by NIKE, under the terms of any employment contract or otherwise,\nand for twelve (12) months thereafter, (the "Restriction Period"), EMPLOYEE will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business\nengaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other business\nwhich directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations ("Competitor"). By way of illustration only,\nexamples of NIKE competitors include, but are not limited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics,\nSaucony, New Balance, Ralph Lauren/Polo Sport, B.U.M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports\nAuthority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and Titleist. This provision is subject to NIKE's option to waive all or any\nportion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT Page 1\nbreaches, until the resolution of the breach though private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the\nadditional compensation described in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE'S\nbreach. In the event EMPLOYEE receives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete\nhas been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE's employment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly payment equal to one-\ntwelfth (1/12) of EMPLOYEE'S then current Annual Nike Income (defined herein to mean base salary and annual Performance Sharing Plan\nbonus calculated at 100% of EMPLOYEE'S targeted rate) while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly severance payment equal to one-twenty-\nfourth (1/24) of EMPLOYEE'S last monthly Annual Nike Income while the Restriction Period is in effect.\n2.\nSubsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE'S new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement\n(a) Protectable Information Defined. "Protected Information" shall mean all proprietary information, in whatever form and format,\nof NIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and\nall information to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information whether\nin verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting\nthe foregoing, Protected Information includes information relating to NIKE's research and development activities, its intellectual property and\nthe filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation,\nmanufacturing processes and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of\ntheir personal portfolio copies of the employees' original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be\nby clear and convincing evidence.\n(c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT Page 2\nand will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE'S employment\nwith NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE. Specifically,\nbut not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other\nuse whatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security\nprecautions and such other actions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected\nInformation in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE'S possession or under EMPLOYEE'S control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident\nand will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE'S employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability.. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable\nor\ninvalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT Page 3\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE'S employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue\nfor any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE\nNIKE, Inc.\nBy:\n/s/ CHARLES D. DENSON\nBy: /s/ PHILIP H. KNIGHT\nName: Charles D. Denson\nName: Philip H. Knight\nTitle: President, NIKE Brand\nTitle: President & CEO\nDATE: 3.26.01\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 4	EX-10.16 4 dex1016.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.16\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nCharles D. Denson (EMPLOYEE)\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries and affiliates. (NIKE):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon the EMPLOYEE’s advancement to the position of\nPresident of the NIKE brand and is a condition of such advancement.\nB. Over the course of EMPLOYEE’s employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop\nconfidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protective Information throughout the world. Protective Information of NIKE can be used to NIKE’s detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or otherwise,\nand for twelve (12) months thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business\nengaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other business\nwhich directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (“Competitor”). By way of illustration only,\nexamples of NIKE competitors include, but are not limited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics,\nSaucony, New Balance, Ralph Lauren/Polo Sport, B.U .M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports\nAuthority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and Titleist. This provision is subject to NIKE’s option to waive all or any\nportion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 1\nbreaches, until the resolution of the breach though private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the\nadditional compensation described in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE’s\nbreach. In the event EMPLOYEE receives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete\nhas been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE’s employment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly payment equal to one-\ntwelfth (1/12) of EMPLOYEE’s then current Annual Nike Income (defined herein to mean base salary and annual Performance Sharing Plan\nbonus calculated at 100% of EMPLOYEE’s targeted rate) while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly severance payment equal to one-twenty-\nfourth (1/24) of EMPLOYEE’s last monthly Annual Nike Income while the Restriction Period is in effect.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protectable Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format,\nof NIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and\nall information to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether\nin verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting\nthe foregoing, Protected Information includes information relating to NIKE’s research and development activities, its intellectual property and\nthe filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation,\nmanufacturing processes and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of\ntheir personal portfolio copies of the employees’ original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be\nby clear and convincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 2\nand will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE’s employment\nwith NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE. Specifically,\nbut not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other\nuse whatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security\nprecautions and such other actions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected\nInformation in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE’s possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or\ninvalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 3\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE’s employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue\nfor any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE\nNIKE, Inc.\nBy:\n/s/ CHARLES D. DENSON\nBy: /s/ PHILIP H. KNIGHT\nName: Charles D. Denson\nTitle: President, NIKE Brand\nName: Philip H. Knight\nTitle: President & CEO\nDATE: 3.26.01\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 4
1b851a77e5a24dcf064e29959d49e583.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 13 d528890dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nJanuary 30, 2013\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E .\nAtlanta, GA 30303\nAttention: David G. Park\nDear Mr. Park:\nGeorgia-Pacific LLC (“Buyer”) has requested certain non-public information regarding Buckeye Technologies Inc. (the “Company”) and its\nsubsidiaries (collectively, the “Companies”) in connection with a potential negotiated transaction (the “Transaction”) between Buyer and the\nCompany. As a condition to furnishing such information to Buyer, the Company and Buyer agree to the following provisions:\n1. Certain Definitions. As used in this letter agreement (this “ Agreement”):\n(a) “Affiliate” means, with respect to any Person, any other Person that is directly or indirectly Controlling, Controlled by or under\ncommon Control with such Person, where “Control” and derivative terms mean the possession, directly or indirectly, of the power to direct or cause\nthe direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.\n(b) “Evaluation Material” means any information or data concerning any of the Companies or any of their respective Affiliates, whether\nin oral, visual, written, electronic or other form, that is disclosed to Buyer or any of its Representatives before the date hereof, now or in the future by\nany of the Companies or any of their respective Representatives, together with all notes, memoranda, summaries, analyses, compilations and other\nwritings relating thereto that are prepared by Buyer or any of its Representatives to the extent that they use, contain, reflect or are derived from or\nincorporate any such information or data. Notwithstanding the foregoing, “Evaluation Material” does not include any information or data that: (i) is\nor was independently developed by Buyer or any of its Representatives without reference to the Evaluation Material; (ii) is or becomes available to\nthe public, other than as a result of disclosure by Buyer or any of its Representatives in breach of this Agreement; (iii) is or becomes available to\nBuyer or any of its Representatives on a non-confidential basis from a source other than any of the Companies or any of their respective\nRepresentatives, so long as Buyer or its Representatives, after reasonable inquiry, have no reason to believe that such source is bound by an\nobligation of confidentiality or secrecy to the Companies; or (iv) is in Buyer or its Representatives possession prior to the date of this Agreement.\n(c) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) “Representatives” means, with respect to any Person, the Affiliates of such Person and any of such Person’s and its Affiliates\nrespective directors, employees, managing members, general partners, attorneys, accountants, investment bankers, financial advisors, consultants and\nother advisors, together with any actual or potential sources of debt financing for such Person or its Affiliates.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. Buyer agrees that Buyer and its Representatives shall (i) use the Evaluation Material\nsolely for the purpose of evaluating, negotiating and consummating the Transaction; (ii) except as otherwise permitted by this Section 2 or\nSection 3(c), keep all Evaluation Material strictly confidential; and (iii) disclose Evaluation Material only to Representatives of Buyer to whom\ndisclosure is needed to facilitate Buyer’s evaluation, negotiation and/or consummation of the Transaction. Before Buyer or any of its Representatives\nprovides access to any Evaluation Material to any of its Representatives, Buyer agrees that it or one of its Representatives shall inform such\nRepresentative of the confidential nature of the Evaluation Material.\n(b) Discussion Disclosure. Except for such disclosure as is necessary not to be in violation of any applicable law, regulation, order or\nother similar requirement of any governmental, regulatory or supervisory authority or any applicable listing agreement (together, “Applicable Law”),\nBuyer and the Company each agrees that, without the prior written consent of the other party, neither it nor any of its Representatives shall: (i) make\nany disclosure to any other Person (other than such party’s Representatives to whom disclosure is needed to facilitate Buyer ’s evaluation, negotiation\nand/or consummation of the Transaction) of (A) the fact that investigations, discussions or negotiations are taking or have taken place concerning the\nTransaction, (B) the existence or contents of this Agreement, (C) the fact that Buyer and/or any of its Representatives have requested or received\nEvaluation Material, conducted due diligence or attended management meetings or site visits with any of the Companies or any of their respective\nRepresentatives or are otherwise considering the Transaction or (D) any of the terms, conditions or facts relating to the Transaction, including the\nstatus thereof; or (ii) make any public statement concerning the Transaction (any disclosure or statement described in clauses (i) or (ii) being\n“Discussions Disclosure”). Notwithstanding the foregoing, the Company may disclose to other potential buyers that it is considering, investigating,\ndiscussing or negotiating a Transaction and the terms and conditions thereof but may not disclose the involvement therein of Buyer or its\nRepresentatives or any other information identifying the involvement of Buyer or its Representatives.\n(c) Compulsory Disclosure. If Buyer or any of its Representatives is requested or required by interrogatories, requests for information\nfrom a governmental, regulatory or supervisory authority, subpoena or similar legal process to disclose any Evaluation Material or Discussions\nDisclosure, or Buyer believes that any Discussions Disclosure is required for Buyer or any of its Representatives not to be in violation of Applicable\nLaw, Buyer shall provide the Company with prompt prior written notice thereof, to the extent not prohibited by Applicable Law, so that the\nCompany may seek an appropriate protective order and/or, in the sole discretion of the Company, waive compliance by Buyer or its applicable\nRepresentatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, Buyer or any of its\nRepresentatives is nonetheless legally compelled to disclose any Evaluation Material or Discussions Disclosure, then Buyer or such Representatives\nmay, without liability under this Agreement, disclose only such portion of the Evaluation Material or make only such Discussions Disclosure (as\napplicable) as is legally required to be disclosed; provided that Buyer agrees to use (and to cause its applicable Representatives to use) reasonable\nefforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure will be afforded confidential treatment and the\nCompany agrees to reimburse Buyer and any such Representatives for the reasonable and documented out-of-pocket expenses incurred in connection\nwith such efforts to have such Evaluation Material or Discussions Disclosure (as applicable) afforded confidential treatment. In the event that\nCompany determines to seek such protective order or other remedy, the Buyer and any such Representative of the Buyer will reasonably cooperate\nwith the Company (at the Company’s expense) in seeking such protective order or other remedy.\n2\n(d) Disclosure Permitted to Defend Dispute. Notwithstanding the foregoing provisions of this Section 2, Buyer or any of its\nRepresentatives may disclose Evaluation Material or Discussions Disclosure to the extent necessary to defend any litigation claim or cause of action\nbrought against Buyer or any of its Representatives by the Company relating to the Transaction; provided that Buyer agrees to use (and to cause its\napplicable Representatives to use) reasonable efforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure\nwill be afforded confidential treatment and the Company agrees to reimburse Buyer and any such Representatives for the reasonable and\ndocumented out-of-pocket expenses incurred in connection with such efforts to have such Evaluation Material or Discussions Disclosure (as\napplicable) afforded confidential treatment.\n3. Joint Bidding and Lock-ups.\n(a) Buyer hereby represents and warrants that Buyer is not acting as a broker for or Representative of any other Person (other than its\nAffiliates) in connection with the Transaction, and is considering the Transaction only for its own account and for the account of its Affiliates.\nExcept with the prior written consent of the Company, Buyer agrees that (i) it will not act as a joint bidder or co-bidder with any other Person with\nrespect to the Transaction, other than its Affiliates, and (ii) neither Buyer nor any of its Representatives (acting on behalf of Buyer or its Affiliates)\nwill enter into any discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other Person regarding\nthe Transaction, other than the Company and its Representatives and Buyer’s Representatives (to the extent permitted hereunder).\n(b) Buyer hereby represents and warrants that neither it nor any of its Controlled Affiliates is party to any agreement, arrangement or\nunderstanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or otherwise) to any\nother Person specifically for the Transaction, and Buyer hereby agrees that (i) neither it nor any of its Controlled Affiliates will restrict the ability of\nany other Person to provide any such financing, and (ii) Buyer will direct its Affiliates (other than Controlled Affiliates) and Representatives not to\nrestrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, Buyer agrees that\nneither Buyer nor any of its Representatives will disclose any Evaluation Material or make any Discussions Disclosure to any actual or potential\nsources of financing (debt, equity or otherwise), other than bona fide third party institutional lenders who provide or are or may be engaged to\nprovide debt financing to Buyer or its Affiliates.\n4. Securities Law Restrictions. Buyer acknowledges that: (a) the Evaluation Material and information that, if disclosed, would constitute\nDiscussions Disclosure may contain material non-public information concerning the Companies and their respective Affiliates; (b) Buyer is aware of\nthe restrictions imposed by U.S . federal and state securities laws, and the rules and regulations promulgated thereunder, on Persons in possession of\nmaterial non-public information; and (c) Buyer will not (and Buyer will instruct its Representatives to not), directly or indirectly, use or allow any\nother Person to use, any Evaluation Material or information that, if disclosed, would constitute Discussions Disclosure in contravention of any U.S .\nfederal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation Material or other such information in\nfact contains material non-public information concerning the Companies or any of their respective Affiliates.\n3\n5. No Representations or Warranties. Buyer acknowledges and agrees that: (a) except as may be included in the Definitive Transaction\nAgreements, no representation or warranty, express or implied, is made by the Companies or any of their respective Representatives as to the\naccuracy or completeness of any of the Evaluation Material; and (b) Buyer shall be entitled to rely only on those representations and warranties that\nare expressly set forth in any definitive written agreements that is hereafter executed and delivered by both Buyer and the Company in connection\nwith the Transaction (“Definitive Transaction Agreements”). Except as may be expressly set forth in Definitive Transaction Agreements, none of the\nCompanies or any of their respective Representatives shall have any liability to Buyer or any of its Representatives on account of the use of any\nEvaluation Material by Buyer or any of its Representatives or any inaccuracy therein or omission therefrom. Unless and until Definitive Transaction\nAgreements are entered into, neither party nor any of its Representatives, by virtue of this Agreement or any other written or oral expression, will be\nunder any legal obligation of any kind whatsoever with respect to such a Transaction except for the matters specifically agreed to in this Agreement.\n6. Destruction or Erasure of Evaluation Material. Promptly after receipt of the Company’s written request, Buyer agrees that Buyer and its\nRepresentatives shall destroy or erase all Evaluation Material (including any Evaluation Material held electronically) in the possession or control of\nBuyer or any of its Representatives, and Buyer shall certify such destruction or erasure to the Company; provided that (i) neither Buyer nor any of its\nRepresentatives shall be required to destroy or erase any electronic copy of any Evaluation Material that is created pursuant to such Person’s\nstandard electronic backup and archival procedures if (x) personnel whose functions are not primarily information technology in nature do not have\naccess to such retained copies and (y) personnel whose functions are primarily information technology in nature have access to such copies only as\nreasonably necessary for the performance of their information technology duties (e.g., for purposes of system recovery) and (ii) Buyer and its\nRepresentatives may each retain one copy of any Evaluation Material to the extent required to defend or maintain any litigation relating to this\nAgreement or the Evaluation Material, or to comply with requirements of Applicable Law or established document retention policies. All such\nEvaluation Material retained in accordance with the foregoing proviso shall continue to be subject to Section 2 and Section 4.\n7. Communications Regarding the Transaction. Buyer agrees that all communications by it or any of its Representatives concerning the\nTransaction and its due diligence investigation (including requests for additional Evaluation Material, meetings with management and site visits)\nshall be directed solely to Steven G. Dean, Executive Vice President and Chief Financial Officer, except as may otherwise by approved in advance\nand in writing by the Company. Buyer agrees that, except with the prior written consent of the Company, neither Buyer nor any of its\nRepresentatives will contact or communicate with any of the directors, officers, employees, customers, suppliers, distributors, licensees, licensors,\nclients and other business relations of any of the Companies regarding the Companies or the Transaction, in each case except to the extent such\ncontacts and communications are (i) made in the ordinary course of business of Buyer or the applicable Representatives and are unrelated to the\nTransaction and the evaluation of the Transaction conducted by Buyer and its Representatives or (ii) approved in advance and in writing by the\nCompany.\n8. No Solicitation or Hiring. Buyer agrees that, except with the prior written consent of the Company, it will not, and it will not permit any of\nits Controlled Affiliates to, directly or indirectly, solicit for employment or hire any employees of the Companies with whom it initially comes into\ncontact in connection with the Transaction for a period of 18 months after the date of this Agreement; provided that this Section 8 shall not restrict\nBuyer or any of its Controlled Affiliates from\n4\n(i) making any general solicitation for employment that is not specifically directed at any such Persons, (ii) soliciting any such Person who has left\nthe employment of the Companies at least six months prior to such solicitation, (iii) hiring any Person that is referred by a third party agency through\na general search not targeted at employees of the Companies or (iv) hiring any Person who directly submits an application for employment to Buyer\nor any of its Controlled Affiliates without any solicitation effort by Buyer or any of its Controlled Affiliates that would be a violation of this\nSection 8.\n9. Standstill. Unless approved in advance in writing by the board of directors of the Company, Buyer agrees that neither Buyer nor any of its\nRepresentatives acting on behalf of or in concert with Buyer (or any of its Representatives) will, from the date hereof and for a period extending until\n18 months after the date on which the Company last provides Evaluation Material under this Agreement, directly or indirectly:\n(a) make any public announcement, proposal or offer with respect to (including, for the avoidance of doubt, indirectly by means of\ncommunication with the press or media) (i) any business combination, merger, tender offer, exchange offer or similar transaction involving any of\nthe Companies, (ii) any restructuring, recapitalization, liquidation or similar transaction involving any of the Companies, (iii) any acquisition of any\nof the Companies’ loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Companies’ loans, debt\nsecurities, equity securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control\nor influence the management, board of directors or policies of the Company, (v) any request or proposal to waive, terminate or amend the provisions\nof this Agreement or (vi) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this\nSection 9(a);\n(b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) to vote, or seek to advise or influence any Person with respect to the voting of,\nany voting securities of the Company.\n(c) instigate, encourage or assist any third party (including forming a “group” (as defined in Section 13(d)(3) of the Securities Exchange\nAct of 1934, as amended) with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the\nactions set forth in clause (a) or (b) above;\n(d) take any action which would reasonably be expected to require the Company or any of its Affiliates to make a public announcement\nregarding any of the actions set forth in clause (a) or (b) above; or\n(e) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity\nsecurities or assets of any of the Companies or rights or options to acquire interests in any of the Companies’ loans, debt securities, equity securities\nor assets.\nAs of the date of this Agreement, neither the Buyer nor any of its Controlled Affiliates owns any loans, debt securities, equity securities or assets of\nany of the Companies or rights or options to acquire interests in any of the Companies’ loans, debt securities, voting securities or assets.\nThe foregoing restrictions shall not apply to any of Buyer’s Representatives effecting or recommending transactions in securities (A) in the ordinary\ncourse of its business as an investment advisor, broker,\n5\ndealer in securities, market maker, specialist or block positioner and (B) not at the direction or request of Buyer or any of its Affiliates. The\nCompany acknowledges that certain of the Buyer’s Affiliates are engaged in trading activities in which such Affiliates may effect transactions in the\nsecurities of the Companies or other entities in the ordinary course of business. The Company hereby agrees that nothing in this Section 9 shall\nprohibit or restrict acquisitions in the aggregate of not more than 5% of the voting securities of the Company by such Affiliates in the ordinary\ncourse of their trading activities provided they occur without the use of or access to the Evaluation Material.\n(f) Notwithstanding the foregoing provisions of this Section 9:\n(i) Buyer and its Representatives may exercise voting rights pursuant to its ownership of any securities of the Companies at any\nregular or special meeting at which such other holders of the same class of securities are entitled to vote;\n(ii) shall not restrict Buyer or any of its Representatives from making any proposal regarding a possible Transaction to\nmanagement of the Company and its advisors or directly to the board of directors of the Company on a confidential basis if such proposal does not\nrequire the Company to make a public announcement regarding this Agreement, a possible Transaction or any of the matters described in this\nSection 9; provided, however, that, from and after the date on which the Company shall have recommended, publicly proposed or publicly\nannounced an intention to authorize, recommend or propose, or shall have entered into an agreement with any Person (other than Buyer or its\nAffiliates) to effect or participate in a transaction of the type contemplated by clause (a) above, any such communications may be made to\nmanagement of the Company and its advisors or directly to the board of directors of the Company without regard to whether to Company would or\nmight be required to make a public announcement with respect thereto until such time as such Transaction closes or is terminated or abandoned by\nthe parties thereto; and\n(iii) Buyer and its Representatives may purchase goods or services of the Companies or submit proposals for the purchase or sale\nof goods or services to the Companies in the ordinary course of business.\n10. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach or\nthreatened breach, in addition to all other remedies available at law or in equity. Such injunctive or other equitable relief shall be available without\nthe obligation to prove any damages underlying such breach or threatened breach. Each party agrees that it will not petition or otherwise attempt to\nrequire the posting of a bond or other security in connection with any attempt by any other party to seek such injunctive or other equitable relief. No\nfailure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal\nproceedings relating to this Agreement, the reasonable costs and expenses incurred by the prevailing party and its Representatives in connection with\nsuch proceedings, including attorney fees and disbursements, shall be reimbursed by the non-prevailing party.\n11. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, none of the\nCompanies waives or is waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client\nprivileges or similar protections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or\nthreatened litigation) to Buyer or any of its Representatives.\n6\n12. Liability for Representatives. Buyer shall be liable for any breaches of this Agreement by any of its Representatives, except for breaches\ncommitted by any Representative that is party to either (a) a separate joinder agreement among such Representative, Buyer and the Company in the\nform set forth as Exhibit A hereto or (b) a separate mutually acceptable confidentiality agreement between such Representative and the Company\nwith respect to the Evaluation Material.\n13. Term. Except for Sections 6 (Destruction or Erasure of Evaluation Material) and 14(i) (Governing Law; Forum), which shall be binding in\nperpetuity or until the latest date permitted by Applicable Law, this Agreement shall expire upon the date that is two years after the date of this\nAgreement.\n14. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed by\nany offering memorandum, web-based database or similar repository of Evaluation Material to which Buyer or any of its Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to the Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n(c) Competing Activities. Subject to Buyer’s compliance with its obligations with respect to the nondisclosure and use of the Evaluation\nMaterial, nothing in this Agreement shall prevent Buyer or any of its Representatives from evaluating a possible investment in and/or collaborating\nwith, or entering into any transaction with (including an investment in), or monitoring, managing, maintaining or otherwise acting with respect to an\ninvestment in, any Person whose business is similar to or competitive with the business of the Companies. The Company acknowledges that Buyer\nand its Representatives conduct business with many Persons, some of which may engage in or pursue businesses and strategies that are similar to or\ncompetitive with those of the Companies. Although Buyer is subject to the obligations set forth in this Agreement, the occurrence or existence of\nsuch similar or competitive activities shall not by itself be cause for any action or allegation by the Company that Buyer or any of its Representatives\nhas failed to observe any of the obligations set forth in this Agreement.\n(d) Ownership of Evaluation Material; No License. All Evaluation Material prepared by or on behalf of the Companies is and shall\nremain property of the applicable Companies. Buyer acknowledges and agrees that none of the Companies nor any of their respective\nRepresentatives grants any license or other property right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work,\ndatabase or other intellectual or intangible property or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation\nMaterial prepared by or on behalf of the Companies.\n7\n(e) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the assets of the Companies shall be entitled to the benefits of this Agreement, whether or not this\nAgreement is assigned to such purchaser.\n(f) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Buyer and the Company.\n(g) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(h) No Obligation To Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party to (i) consummate a Transaction, (ii) conduct or continue discussions or negotiations concerning a Transaction, (iii) enter\ninto a joint venture or other business relationship of any kind or (iv) enter into or negotiate Definitive Transaction Agreements. Except with respect\nto the matters specifically set forth herein, neither party shall have any rights or obligations of any kind whatsoever with respect to a Transaction by\nvirtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and until Definitive\nTransaction Agreements is executed and delivered. Buyer acknowledge that the Company reserves the right to (A) provide or not provide Evaluation\nMaterial to, and to request the destruction or erasure of Evaluation Material by, Buyer or any of its Representatives, (B) reject any proposals made by\nBuyer or any of its Representatives, (C) terminate discussions or negotiations with Buyer or any of its Representatives and (D) engage in discussions\nand/or negotiations, and to enter into any agreement, with any other Person, in each case in the Company’s sole discretion, without notice to Buyer\nor any of its Representatives, at any time and for any reason or no reason. Buyer shall not have any claim or cause of action against the Companies\nor any of their respective Representatives in respect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement, if any,\nthat is hereafter executed.\n(i) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise\nout of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance\nwith, the laws of the State of Delaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the\nevent that the Delaware Court of Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal\nproceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action\nor legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may\nnow or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal\nproceeding brought in any such court has been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons,\nnotice or document by U.S. registered mail addressed to such party shall be effective service of process for any such suit, action or proceeding\nbrought against such party in any such court. Each party hereto agrees that a final judgment in any such suit, action or proceeding brought in any\nsuch court shall be conclusive and binding upon such party and may be enforced in any other courts to whose jurisdiction such party is or may be\nsubject by suit upon such judgment.\n8\n(j) Waiver of Conflicts. Buyer hereby acknowledges that Dechert LLP (“Dechert”) represents the Company, and if for any reason\nDechert’s representation of the Company in negotiations with Buyer would create a conflict of interest, because of Dechert’s representation of Buyer\nin other unrelated matters or otherwise, Buyer hereby waives any such conflict and agrees that Dechert may represent the Company in connection\nwith the Transaction, including in any litigation that might result.\n(k) Counterparts. This Agreement may be signed in any number of counterparts (including by fax or PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto.\n9\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to John B. Crowe, whereupon this Agreement\nshall constitute our binding agreement with respect to the matters set forth herein.\nVery truly yours,\nBUCKEYE TECHNOLOGIES INC.\nBy: /s/ John B. Crowe\nName: John B. Crowe\nTitle: Chairman of the Board and Chief Executive\nOfficer\nAccepted and agreed to\nas of the date first written above:\nGEORGIA-PACIFIC LLC\nBy: /s/ David G. Park\nName: David G. Park\nTitle: Senior Vice President – Strategy and\nBusiness Development\n10\nExhibit A\nJOINDER AGREEMENT\n[Date]\n[Name of Representative]\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nAttention: John Crowe\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E .\nAtlanta, GA 30303\nAttention: David G. Park\nLadies and Gentlemen:\nWe refer to the attached confidentiality agreement dated January 30, 2013 (the “Confidentiality Agreement”) between Georgia-Pacific LLC\n(“Buyer”) and Buckeye Technologies Inc. (the “Company”). Capitalized terms used below that are defined in the Confidentiality Agreement are\nused with the meanings given such terms in the Confidentiality Agreement.\nThe undersigned is a Representative of Buyer (“Buyer’s Representative”). Buyer’s Representative hereby agrees, for the benefit of Buyer and the\nCompany, to be bound on behalf of itself and its Representatives by the obligations with respect to Buyer’s Representatives contained in Sections 2,\n3, 6, and 7 of the Confidentiality Agreement (the “Obligations”) as if it were a party thereto.\nThe parties hereto acknowledge and agree that the signing of this agreement (this “Agreement”) does not obligate any Person to enter into the\nTransaction or to provide financing for the Transaction. Buyer acknowledges and agrees that Buyer ’s Representative shall not be restricted from\nbeing engaged or mandated by, or otherwise assisting or participating with, any other Person in any transaction that is similar to or competitive with\nthe Transaction, but Buyer’s Representative must comply with the Obligations as provided herein. Additionally, nothing herein or in the\nConfidentiality Agreement shall prohibit Buyer’s Representative from disclosing to any third party who contacts Buyer’s Representative to act as a\npotential financing source with respect to a transaction that is similar to or competitive with the Transaction, the fact that it is working with another\nPerson with respect to a transaction with the Company, so long as it keeps confidential the identity of Buyer and otherwise complies with the\nObligations.\nNo failure or delay by Buyer or the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any\nother or further exercise thereof or the exercise of any other right, power or privilege hereunder.\nBuyer’s Representative agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement and that\nBuyer and the Company shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach or threatened breach, in addition to all other remedies available\nat law or in equity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees that it will not petition or otherwise attempt to require the posting of a bond or other security in connection with\nany attempt by any other party to seek such injunctive or other equitable relief.\nThis Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or\nthe negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance with, the laws of the State of\nDelaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the event that the Delaware Court\nof Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal proceeding relating to or arising\nout of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action or legal proceeding relating\nthereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may now or hereafter have to the\nlaying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal proceeding brought in any such court\nhas been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered\nmail addressed to such party shall be effective service of process for any such suit, action or proceeding brought against such party in any such court.\nEach party hereto agrees that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon\nsuch party and may be enforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\nThis Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the signatures to each\ncounterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This Agreement shall\nbecome effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other parties hereto.\n[Signature page follows]\n2\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to [CONTACT], whereupon this Agreement\nshall constitute our binding agreement with respect to the matters set forth herein.\nVery truly yours,\n[BUYER’S REPRESENTATIVE]\nBy:\nName:\nTitle:\nAccepted and agreed:\nGEORGIA-PACIFIC LLC\nBy:\nName:\nTitle:\nBUCKEYE TECHNOLOGIES INC.\nBy:\nName:\nTitle:\n3	EX-99.(D)(3) 13 d528890dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nJanuary 30, 2013\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E.\nAtlanta, GA 30303\nAttention: David G. Park\nDear Mr. Park:\nGeorgia-Pacific LLC (“Buyer”) has requested certain non-public information regarding Buckeye Technologies Inc. (the “Company”) and its\nsubsidiaries (collectively, the “Companies”) in connection with a potential negotiated transaction (the “Transaction”) between Buyer and the\nCompany. As a condition to furnishing such information to Buyer, the Company and Buyer agree to the following provisions:\n1. Certain Definitions. As used in this letter agreement (this “Agreement”):\n(a) “Affiliate” means, with respect to any Person, any other Person that is directly or indirectly Controlling, Controlled by or under\ncommon Control with such Person, where “Control” and derivative terms mean the possession, directly or indirectly, of the power to direct or cause\nthe direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.\n(b) “Evaluation Material” means any information or data concerning any of the Companies or any of their respective Affiliates, whether\nin oral, visual, written, electronic or other form, that is disclosed to Buyer or any of its Representatives before the date hereof, now or in the future by\nany of the Companies or any of their respective Representatives, together with all notes, memoranda, summaries, analyses, compilations and other\nwritings relating thereto that are prepared by Buyer or any of its Representatives to the extent that they use, contain, reflect or are derived from or\nincorporate any such information or data. Notwithstanding the foregoing, “Evaluation Material” does not include any information or data that: (i) is\nor was independently developed by Buyer or any of its Representatives without reference to the Evaluation Material; (ii) is or becomes available to\nthe public, other than as a result of disclosure by Buyer or any of its Representatives in breach of this Agreement; (iii) is or becomes available to\nBuyer or any of its Representatives on a non-confidential basis from a source other than any of the Companies or any of their respective\nRepresentatives, so long as Buyer or its Representatives, after reasonable inquiry, have no reason to believe that such source is bound by an\nobligation of confidentiality or secrecy to the Companies; or (iv) is in Buyer or its Representatives possession prior to the date of this Agreement.\n(c) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) “Representatives” means, with respect to any Person, the Affiliates of such Person and any of such Person’s and its Affiliates\nrespective directors, employees, managing members, general partners, attorneys, accountants, investment bankers, financial advisors, consultants and\nother advisors, together with any actual or potential sources of debt financing for such Person or its Affiliates.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. Buyer agrees that Buyer and its Representatives shall (i) use the Evaluation Material\nsolely for the purpose of evaluating, negotiating and consummating the Transaction; (ii) except as otherwise permitted by this Section 2 or\nSection 3(c), keep all Evaluation Material strictly confidential; and (iii) disclose Evaluation Material only to Representatives of Buyer to whom\ndisclosure is needed to facilitate Buyer’s evaluation, negotiation and/or consummation of the Transaction. Before Buyer or any of its Representatives\nprovides access to any Evaluation Material to any of its Representatives, Buyer agrees that it or one of its Representatives shall inform such\nRepresentative of the confidential nature of the Evaluation Material.\n(b) Discussion Disclosure. Except for such disclosure as is necessary not to be in violation of any applicable law, regulation, order or\nother similar requirement of any governmental, regulatory or supervisory authority or any applicable listing agreement (together, “Applicable Law™),\nBuyer and the Company each agrees that, without the prior written consent of the other party, neither it nor any of its Representatives shall: (i) make\nany disclosure to any other Person (other than such party’s Representatives to whom disclosure is needed to facilitate Buyer’s evaluation, negotiation\nand/or consummation of the Transaction) of (A) the fact that investigations, discussions or negotiations are taking or have taken place concerning the\nTransaction, (B) the existence or contents of this Agreement, (C) the fact that Buyer and/or any of its Representatives have requested or received\nEvaluation Material, conducted due diligence or attended management meetings or site visits with any of the Companies or any of their respective\nRepresentatives or are otherwise considering the Transaction or (D) any of the terms, conditions or facts relating to the Transaction, including the\nstatus thereof; or (ii) make any public statement concerning the Transaction (any disclosure or statement described in clauses (i) or (ii) being\n“Discussions Disclosure”). Notwithstanding the foregoing, the Company may disclose to other potential buyers that it is considering, investigating,\ndiscussing or negotiating a Transaction and the terms and conditions thereof but may not disclose the involvement therein of Buyer or its\nRepresentatives or any other information identifying the involvement of Buyer or its Representatives.\n(c) Compulsory Disclosure. If Buyer or any of its Representatives is requested or required by interrogatories, requests for information\nfrom a governmental, regulatory or supervisory authority, subpoena or similar legal process to disclose any Evaluation Material or Discussions\nDisclosure, or Buyer believes that any Discussions Disclosure is required for Buyer or any of its Representatives not to be in violation of Applicable\nLaw, Buyer shall provide the Company with prompt prior written notice thereof, to the extent not prohibited by Applicable Law, so that the\nCompany may seek an appropriate protective order and/or, in the sole discretion of the Company, waive compliance by Buyer or its applicable\nRepresentatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, Buyer or any of its\nRepresentatives is nonetheless legally compelled to disclose any Evaluation Material or Discussions Disclosure, then Buyer or such Representatives\nmay, without liability under this Agreement, disclose only such portion of the Evaluation Material or make only such Discussions Disclosure (as\napplicable) as is legally required to be disclosed; provided that Buyer agrees to use (and to cause its applicable Representatives to use) reasonable\nefforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure will be afforded confidential treatment and the\nCompany agrees to reimburse Buyer and any such Representatives for the reasonable and documented out-of-pocket expenses incurred in connection\nwith such efforts to have such Evaluation Material or Discussions Disclosure (as applicable) afforded confidential treatment. In the event that\nCompany determines to seek such protective order or other remedy, the Buyer and any such Representative of the Buyer will reasonably cooperate\nwith the Company (at the Company’s expense) in seeking such protective order or other remedy.\n2\n(d) Disclosure Permitted to Defend Dispute. Notwithstanding the foregoing provisions of this Section 2, Buyer or any of its\nRepresentatives may disclose Evaluation Material or Discussions Disclosure to the extent necessary to defend any litigation claim or cause of action\nbrought against Buyer or any of its Representatives by the Company relating to the Transaction; provided that Buyer agrees to use (and to cause its\napplicable Representatives to use) reasonable efforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure\nwill be afforded confidential treatment and the Company agrees to reimburse Buyer and any such Representatives for the reasonable and\ndocumented out-of-pocket expenses incurred in connection with such efforts to have such Evaluation Material or Discussions Disclosure (as\napplicable) afforded confidential treatment.\n3. Joint Bidding and Lock-ups.\n(a) Buyer hereby represents and warrants that Buyer is not acting as a broker for or Representative of any other Person (other than its\nAffiliates) in connection with the Transaction, and is considering the Transaction only for its own account and for the account of its Affiliates.\nExcept with the prior written consent of the Company, Buyer agrees that (i) it will not act as a joint bidder or co-bidder with any other Person with\nrespect to the Transaction, other than its Affiliates, and (ii) neither Buyer nor any of its Representatives (acting on behalf of Buyer or its Affiliates)\nwill enter into any discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other Person regarding\nthe Transaction, other than the Company and its Representatives and Buyer’s Representatives (to the extent permitted hereunder).\n(b) Buyer hereby represents and warrants that neither it nor any of its Controlled Affiliates is party to any agreement, arrangement or\nunderstanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or otherwise) to any\nother Person specifically for the Transaction, and Buyer hereby agrees that (i) neither it nor any of its Controlled Affiliates will restrict the ability of\nany other Person to provide any such financing, and (ii) Buyer will direct its Affiliates (other than Controlled Affiliates) and Representatives not to\nrestrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, Buyer agrees that\nneither Buyer nor any of its Representatives will disclose any Evaluation Material or make any Discussions Disclosure to any actual or potential\nsources of financing (debt, equity or otherwise), other than bona fide third party institutional lenders who provide or are or may be engaged to\nprovide debt financing to Buyer or its Affiliates.\n4. Securities Law Restrictions. Buyer acknowledges that: (a) the Evaluation Material and information that, if disclosed, would constitute\nDiscussions Disclosure may contain material non-public information concerning the Companies and their respective Affiliates; (b) Buyer is aware of\nthe restrictions imposed by U.S. federal and state securities laws, and the rules and regulations promulgated thereunder, on Persons in possession of\nmaterial non-public information; and (c) Buyer will not (and Buyer will instruct its Representatives to not), directly or indirectly, use or allow any\nother Person to use, any Evaluation Material or information that, if disclosed, would constitute Discussions Disclosure in contravention of any U.S.\nfederal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation Material or other such information in\nfact contains material non-public information concerning the Companies or any of their respective Affiliates.\n3\n5. No Representations or Warranties. Buyer acknowledges and agrees that: (a) except as may be included in the Definitive Transaction\nAgreements, no representation or warranty, express or implied, is made by the Companies or any of their respective Representatives as to the\naccuracy or completeness of any of the Evaluation Material; and (b) Buyer shall be entitled to rely only on those representations and warranties that\nare expressly set forth in any definitive written agreements that is hereafter executed and delivered by both Buyer and the Company in connection\nwith the Transaction (“Definitive Transaction Agreements”). Except as may be expressly set forth in Definitive Transaction Agreements, none of the\nCompanies or any of their respective Representatives shall have any liability to Buyer or any of its Representatives on account of the use of any\nEvaluation Material by Buyer or any of its Representatives or any inaccuracy therein or omission therefrom. Unless and until Definitive Transaction\nAgreements are entered into, neither party nor any of its Representatives, by virtue of this Agreement or any other written or oral expression, will be\nunder any legal obligation of any kind whatsoever with respect to such a Transaction except for the matters specifically agreed to in this Agreement.\n6. Destruction or Erasure of Evaluation Material. Promptly after receipt of the Company’s written request, Buyer agrees that Buyer and its\nRepresentatives shall destroy or erase all Evaluation Material (including any Evaluation Material held electronically) in the possession or control of\nBuyer or any of its Representatives, and Buyer shall certify such destruction or erasure to the Company; provided that (i) neither Buyer nor any of its\nRepresentatives shall be required to destroy or erase any electronic copy of any Evaluation Material that is created pursuant to such Person’s\nstandard electronic backup and archival procedures if (x) personnel whose functions are not primarily information technology in nature do not have\naccess to such retained copies and (y) personnel whose functions are primarily information technology in nature have access to such copies only as\nreasonably necessary for the performance of their information technology duties (e.g., for purposes of system recovery) and (ii) Buyer and its\nRepresentatives may each retain one copy of any Evaluation Material to the extent required to defend or maintain any litigation relating to this\nAgreement or the Evaluation Material, or to comply with requirements of Applicable Law or established document retention policies. All such\nEvaluation Material retained in accordance with the foregoing proviso shall continue to be subject to Section 2 and Section 4.\n7. Communications Regarding the Transaction. Buyer agrees that all communications by it or any of its Representatives concerning the\nTransaction and its due diligence investigation (including requests for additional Evaluation Material, meetings with management and site visits)\nshall be directed solely to Steven G. Dean, Executive Vice President and Chief Financial Officer, except as may otherwise by approved in advance\nand in writing by the Company. Buyer agrees that, except with the prior written consent of the Company, neither Buyer nor any of its\nRepresentatives will contact or communicate with any of the directors, officers, employees, customers, suppliers, distributors, licensees, licensors,\nclients and other business relations of any of the Companies regarding the Companies or the Transaction, in each case except to the extent such\ncontacts and communications are (i) made in the ordinary course of business of Buyer or the applicable Representatives and are unrelated to the\nTransaction and the evaluation of the Transaction conducted by Buyer and its Representatives or (ii) approved in advance and in writing by the\nCompany.\n8. No Solicitation or Hiring. Buyer agrees that, except with the prior written consent of the Company, it will not, and it will not permit any of\nits Controlled Affiliates to, directly or indirectly, solicit for employment or hire any employees of the Companies with whom it initially comes into\ncontact in connection with the Transaction for a period of 18 months after the date of this Agreement; provided that this Section 8 shall not restrict\nBuyer or any of its Controlled Affiliates from\n(i) making any general solicitation for employment that is not specifically directed at any such Persons, (ii) soliciting any such Person who has left\nthe employment of the Companies at least six months prior to such solicitation, (iii) hiring any Person that is referred by a third party agency through\na general search not targeted at employees of the Companies or (iv) hiring any Person who directly submits an application for employment to Buyer\nor any of its Controlled Affiliates without any solicitation effort by Buyer or any of its Controlled Affiliates that would be a violation of this\nSection 8.\n9. Standstill. Unless approved in advance in writing by the board of directors of the Company, Buyer agrees that neither Buyer nor any of its\nRepresentatives acting on behalf of or in concert with Buyer (or any of its Representatives) will, from the date hereof and for a period extending until\n18 months after the date on which the Company last provides Evaluation Material under this Agreement, directly or indirectly:\n(a) make any public announcement, proposal or offer with respect to (including, for the avoidance of doubt, indirectly by means of\ncommunication with the press or media) (i) any business combination, merger, tender offer, exchange offer or similar transaction involving any of\nthe Companies, (ii) any restructuring, recapitalization, liquidation or similar transaction involving any of the Companies, (iii) any acquisition of any\nof the Companies’ loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Companies’ loans, debt\nsecurities, equity securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control\nor influence the management, board of directors or policies of the Company, (v) any request or proposal to waive, terminate or amend the provisions\nof this Agreement or (vi) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this\nSection 9(a);\n(b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) to vote, or seek to advise or influence any Person with respect to the voting of,\nany voting securities of the Company.\n(c) instigate, encourage or assist any third party (including forming a “group” (as defined in Section 13(d)(3) of the Securities Exchange\nAct of 1934, as amended) with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the\nactions set forth in clause (a) or (b) above;\n(d) take any action which would reasonably be expected to require the Company or any of its Affiliates to make a public announcement\nregarding any of the actions set forth in clause (a) or (b) above; or\n(e) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity\nsecurities or assets of any of the Companies or rights or options to acquire interests in any of the Companies’ loans, debt securities, equity securities\nor assets.\nAs of the date of this Agreement, neither the Buyer nor any of its Controlled Affiliates owns any loans, debt securities, equity securities or assets of\nany of the Companies or rights or options to acquire interests in any of the Companies’ loans, debt securities, voting securities or assets.\nThe foregoing restrictions shall not apply to any of Buyer’s Representatives effecting or recommending transactions in securities (A) in the ordinary\ncourse of its business as an investment advisor, broker,\ndealer in securities, market maker, specialist or block positioner and (B) not at the direction or request of Buyer or any of its Affiliates. The\nCompany acknowledges that certain of the Buyer’s Affiliates are engaged in trading activities in which such Affiliates may effect transactions in the\nsecurities of the Companies or other entities in the ordinary course of business. The Company hereby agrees that nothing in this Section 9 shall\nprohibit or restrict acquisitions in the aggregate of not more than 5% of the voting securities of the Company by such Affiliates in the ordinary\ncourse of their trading activities provided they occur without the use of or access to the Evaluation Material.\n(f) Notwithstanding the foregoing provisions of this Section 9:\n(i) Buyer and its Representatives may exercise voting rights pursuant to its ownership of any securities of the Companies at any\nregular or special meeting at which such other holders of the same class of securities are entitled to vote;\n(ii) shall not restrict Buyer or any of its Representatives from making any proposal regarding a possible Transaction to\nmanagement of the Company and its advisors or directly to the board of directors of the Company on a confidential basis if such proposal does not\nrequire the Company to make a public announcement regarding this Agreement, a possible Transaction or any of the matters described in this\nSection 9; provided, however, that, from and after the date on which the Company shall have recommended, publicly proposed or publicly\nannounced an intention to authorize, recommend or propose, or shall have entered into an agreement with any Person (other than Buyer or its\nAffiliates) to effect or participate in a transaction of the type contemplated by clause (a) above, any such communications may be made to\nmanagement of the Company and its advisors or directly to the board of directors of the Company without regard to whether to Company would or\nmight be required to make a public announcement with respect thereto until such time as such Transaction closes or is terminated or abandoned by\nthe parties thereto; and\n(iii) Buyer and its Representatives may purchase goods or services of the Companies or submit proposals for the purchase or sale\nof goods or services to the Companies in the ordinary course of business.\n10. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach or\nthreatened breach, in addition to all other remedies available at law or in equity. Such injunctive or other equitable relief shall be available without\nthe obligation to prove any damages underlying such breach or threatened breach. Each party agrees that it will not petition or otherwise attempt to\nrequire the posting of a bond or other security in connection with any attempt by any other party to seek such injunctive or other equitable relief. No\nfailure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal\nproceedings relating to this Agreement, the reasonable costs and expenses incurred by the prevailing party and its Representatives in connection with\nsuch proceedings, including attorney fees and disbursements, shall be reimbursed by the non-prevailing party.\n11. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, none of the\nCompanies waives or is waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client\nprivileges or similar protections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or\nthreatened litigation) to Buyer or any of its Representatives.\n12. Liability for Representatives. Buyer shall be liable for any breaches of this Agreement by any of its Representatives, except for breaches\ncommitted by any Representative that is party to either (a) a separate joinder agreement among such Representative, Buyer and the Company in the\nform set forth as Exhibit A hereto or (b) a separate mutually acceptable confidentiality agreement between such Representative and the Company\nwith respect to the Evaluation Material.\n13. Term. Except for Sections 6 (Destruction or Erasure of Evaluation Material) and 14(i) (Governing Law; Forum), which shall be binding in\nperpetuity or until the latest date permitted by Applicable Law, this Agreement shall expire upon the date that is two years after the date of this\nAgreement.\n14. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed by\nany offering memorandum, web-based database or similar repository of Evaluation Material to which Buyer or any of its Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to the Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n(c) Competing Activities. Subject to Buyer’s compliance with its obligations with respect to the nondisclosure and use of the Evaluation\nMaterial, nothing in this Agreement shall prevent Buyer or any of its Representatives from evaluating a possible investment in and/or collaborating\nwith, or entering into any transaction with (including an investment in), or monitoring, managing, maintaining or otherwise acting with respect to an\ninvestment in, any Person whose business is similar to or competitive with the business of the Companies. The Company acknowledges that Buyer\nand its Representatives conduct business with many Persons, some of which may engage in or pursue businesses and strategies that are similar to or\ncompetitive with those of the Companies. Although Buyer is subject to the obligations set forth in this Agreement, the occurrence or existence of\nsuch similar or competitive activities shall not by itself be cause for any action or allegation by the Company that Buyer or any of its Representatives\nhas failed to observe any of the obligations set forth in this Agreement.\n(d) Ownership of Evaluation Material; No License. All Evaluation Material prepared by or on behalf of the Companies is and shall\nremain property of the applicable Companies. Buyer acknowledges and agrees that none of the Companies nor any of their respective\nRepresentatives grants any license or other property right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work,\ndatabase or other intellectual or intangible property or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation\nMaterial prepared by or on behalf of the Companies.\n(e) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the assets of the Companies shall be entitled to the benefits of this Agreement, whether or not this\nAgreement is assigned to such purchaser.\n(f) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Buyer and the Company.\n(g) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(h) No Obligation To Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party to (i) consummate a Transaction, (ii) conduct or continue discussions or negotiations concerning a Transaction, (iii) enter\ninto a joint venture or other business relationship of any kind or (iv) enter into or negotiate Definitive Transaction Agreements. Except with respect\nto the matters specifically set forth herein, neither party shall have any rights or obligations of any kind whatsoever with respect to a Transaction by\nvirtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and until Definitive\nTransaction Agreements is executed and delivered. Buyer acknowledge that the Company reserves the right to (A) provide or not provide Evaluation\nMaterial to, and to request the destruction or erasure of Evaluation Material by, Buyer or any of its Representatives, (B) reject any proposals made by\nBuyer or any of its Representatives, (C) terminate discussions or negotiations with Buyer or any of its Representatives and (D) engage in discussions\nand/or negotiations, and to enter into any agreement, with any other Person, in each case in the Company’s sole discretion, without notice to Buyer\nor any of its Representatives, at any time and for any reason or no reason. Buyer shall not have any claim or cause of action against the Companies\nor any of their respective Representatives in respect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement, if any,\nthat is hereafter executed.\n(i) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise\nout of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance\nwith, the laws of the State of Delaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the\nevent that the Delaware Court of Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal\nproceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action\nor legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may\nnow or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal\nproceeding brought in any such court has been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons,\nnotice or document by U.S. registered mail addressed to such party shall be effective service of process for any such suit, action or proceeding\nbrought against such party in any such court. Each party hereto agrees that a final judgment in any such suit, action or proceeding brought in any\nsuch court shall be conclusive and binding upon such party and may be enforced in any other courts to whose jurisdiction such party is or may be\nsubject by suit upon such judgment.\n(j) Waiver of Conflicts. Buyer hereby acknowledges that Dechert LLP (“Dechert”) represents the Company, and if for any reason\nDechert’s representation of the Company in negotiations with Buyer would create a conflict of interest, because of Dechert’s representation of Buyer\nin other unrelated matters or otherwise, Buyer hereby waives any such conflict and agrees that Dechert may represent the Company in connection\nwith the Transaction, including in any litigation that might result.\n(k) Counterparts. This Agreement may be signed in any number of counterparts (including by fax or PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto.\n9\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to John B. Crowe, whereupon this Agreement shall constitute our binding agreement with respect to the matters set forth herein. Accepted and agreed to\nas of the date first written above:\nGEORGIA-PACIFIC LLC\nBy: /s/ David G. Park\nName: David G. Park\nTitle:  Senior Vice President — Strategy and\nBusiness Development\n10\nVery truly yours,\nBUCKEYE TECHNOLOGIES INC.\nBy:  /s/John B. Crowe\nName: John B. Crowe\nTitle: Chairman of the Board and Chief Executive\nOfficer\nExhibit A\nJOINDER AGREEMENT\n[Date]\n[Name of Representative]\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nAttention: John Crowe\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E.\nAtlanta, GA 30303\nAttention: David G. Park\nLadies and Gentlemen:\n \nWe refer to the attached confidentiality agreement dated January 30, 2013 (the “Confidentiality Agreement”) between Georgia-Pacific LLC\n(“Buyer”) and Buckeye Technologies Inc. (the “Company”). Capitalized terms used below that are defined in the Confidentiality Agreement are\nused with the meanings given such terms in the Confidentiality Agreement.\nThe undersigned is a Representative of Buyer (“Buyer’s Representative”). Buyer’s Representative hereby agrees, for the benefit of Buyer and the\nCompany, to be bound on behalf of itself and its Representatives by the obligations with respect to Buyer’s Representatives contained in Sections 2,\n3, 6, and 7 of the Confidentiality Agreement (the “Obligations”) as if it were a party thereto.\n \n \nThe parties hereto acknowledge and agree that the signing of this agreement (this “Agreement”) does not obligate any Person to enter into the\nTransaction or to provide financing for the Transaction. Buyer acknowledges and agrees that Buyer’s Representative shall not be restricted from\nbeing engaged or mandated by, or otherwise assisting or participating with, any other Person in any transaction that is similar to or competitive with\nthe Transaction, but Buyer’s Representative must comply with the Obligations as provided herein. Additionally, nothing herein or in the\nConfidentiality Agreement shall prohibit Buyer’s Representative from disclosing to any third party who contacts Buyer’s Representative to act as a\npotential financing source with respect to a transaction that is similar to or competitive with the Transaction, the fact that it is working with another\nPerson with respect to a transaction with the Company, so long as it keeps confidential the identity of Buyer and otherwise complies with the\nObligations.\nNo failure or delay by Buyer or the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any\nother or further exercise thereof or the exercise of any other right, power or privilege hereunder.\nBuyer’s Representative agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement and that\nBuyer and the Company shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach or threatened breach, in addition to all other remedies available\nat law or in equity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees that it will not petition or otherwise attempt to require the posting of a bond or other security in connection with\nany attempt by any other party to seek such injunctive or other equitable relief.\nThis Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or\nthe negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance with, the laws of the State of\nDelaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the event that the Delaware Court\nof Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal proceeding relating to or arising\nout of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action or legal proceeding relating\nthereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may now or hereafter have to the\nlaying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal proceeding brought in any such court\nhas been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered\nmail addressed to such party shall be effective service of process for any such suit, action or proceeding brought against such party in any such court.\nEach party hereto agrees that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon\nsuch party and may be enforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\nThis Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the signatures to each\ncounterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This Agreement shall\nbecome effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other parties hereto.\n[Signature page follows]\n2\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to [CONTACT], whereupon this Agreement shall constitute our binding agreement with respect to the matters set forth herein. Accepted and agreed:\nGEORGIA-PACIFIC LLC\nBy:\nName:\nTitle:\nBUCKEYE TECHNOLOGIES INC. By:\nName:\nTitle:\nVery truly yours,\n[BUYER’S REPRESENTATIVE]\nBy:\nName:\nTitle:	EX-99.(D)(3) 13 528890dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nJanuary 30, 2013\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E.\nAtlanta, GA 30303\nAttention: David G. Park\nDear Mr. Park:\nGeorgia-Pacific LLC ("Buyer") has requested certain non-public information regarding Buckeye Technologies Inc. (the "Company.") and its\nsubsidiaries (collectively, the "Companies") in connection with a potential negotiated transaction (the "Transaction") between Buyer and the\nCompany. As a condition to furnishing such information to Buyer, the Company and Buyer agree to the following provisions:\n1. Certain Definitions. As used in this letter agreement (this "Agreement"):\n(a) "Affiliate" means, with respect to any Person any other Person that is directly or indirectly Controlling, Controlled by or under\ncommon Control with such Person, where "Control" and derivative terms mean the possession, directly or indirectly, of the power to direct or cause\nthe direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.\n(b) "Evaluation Material" means any information or data concerning any of the Companies or any of their respective Affiliates, whether\nin\noral,\nvisual, written, electronic or other form, that is disclosed to Buyer or any of its Representatives before the date hereof, now or in the future by\nany of the Companies or any of their respective Representatives, together with all notes, memoranda, summaries, analyses, compilations and other\nwritings relating thereto that are prepared by Buyer or any of its Representatives to the extent that they use, contain, reflect or are derived from\nor\nincorporate\nany\nsuch\ninformation\nor\ndata.\nNotwithstanding\nthe\nforegoing,\n"Evaluation\nMaterial"\ndoes\nnot\ninclude\nany\ninformation\nor\ndata\nthat:\n(i)\nis\nor was independently developed by Buyer or any of its Representatives without reference to the Evaluation Material; (ii) is or becomes available\nto\nthe public, other than as a result of disclosure by Buyer or any of its Representatives in breach of this Agreement; (iii) is or becomes available to\nBuyer or any of its Representatives on a non-confidential basis from a source other than any of the Companies or any of their respective\nRepresentatives, so long as Buyer or its Representatives, after reasonable inquiry, have no reason to believe that such source is bound by an\nobligation of confidentiality or secrecy to the Companies; or (iv) is in Buyer or its Representatives possession prior to the date of this Agreement.\n(c) "Person" means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) "Representatives" means, with respect to any Person, the Affiliates of such Person and any of such Person's and its Affiliates\nrespective directors, employees, managing members, general partners, attorneys, accountants, investment bankers, financial advisors, consultants\nand\nother advisors, together with any actual or potential sources of debt financing for such Person or its Affiliates.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality. and Use of Evaluation Material. Buyer agrees that Buyer and its Representatives shall (i) use the Evaluation Material\nsolely for the purpose of evaluating, negotiating and consummating the Transaction; (ii) except as otherwise permitted by this Section 2 or\nSection 3(c), keep all Evaluation Material strictly confidential; and (iii) disclose Evaluation Material only to Representatives of Buyer to whom\ndisclosure is needed to facilitate Buyer's evaluation, negotiation and/or consummation of the Transaction. Before Buyer or any of its Representatives\nprovides access to any Evaluation Material to any of its Representatives, Buyer agrees that it or one of its Representatives shall inform such\nRepresentative of the confidential nature of the Evaluation Material.\n(b) Discussion Disclosure. Except for such disclosure as is necessary not to be in violation of any applicable law, regulation, order or\nother similar requirement of any governmental, regulatory or supervisory authority or any applicable listing agreement (together, "Applicable Law"),\nBuyer and the Company each agrees that, without the prior written consent of the other party, neither it nor any of its Representatives shall: (i) make\nany disclosure to any other Person (other than such party's Representatives to whom disclosure is needed to facilitate Buyer's evaluation, negotiation\nand/or consummation of the Transaction) of (A) the fact that investigations, discussions or negotiations are taking or have taken place concerning the\nTransaction, (B) the existence or contents of this Agreement, (C) the fact that Buyer and/or any of its Representatives have requested or received\nEvaluation Material, conducted due diligence or attended management meetings or site visits with any of the Companies or any of their respective\nRepresentatives or are otherwise considering the Transaction or (D) any of the terms, conditions or facts relating to the Transaction, including the\nstatus thereof; or (ii) make any public statement concerning the Transaction (any disclosure or statement described in clauses (i) or (ii) being\n"Discussions Disclosure"). Notwithstanding the foregoing, the Company may disclose to other potential buyers that it is considering, investigating,\ndiscussing or negotiating a Transaction and the terms and conditions thereof but may not disclose the involvement therein of Buyer or its\nRepresentatives or any other information identifying the involvement of Buyer or its Representatives.\n(c) Compulsory Disclosure. If Buyer or any of its Representatives is requested or required by interrogatories, requests for information\nfrom a governmental, regulatory or supervisory authority, subpoena or similar legal process to disclose any Evaluation Material or Discussions\nDisclosure, or Buyer believes that any Discussions Disclosure is required for Buyer or any of its Representatives not to be in violation\nof\nApplicable\nLaw, Buyer shall provide the Company with prompt prior written notice thereof, to the extent not prohibited by Applicable Law, so that the\nCompany may seek an appropriate protective order and/or, in the sole discretion of the Company, waive compliance by Buyer or its applicable\nRepresentatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, Buyer or any of its\nRepresentatives is nonetheless legally compelled to disclose any Evaluation Material or Discussions Disclosure, then Buyer or such Representatives\nmay, without liability under this Agreement, disclose only such portion of the Evaluation Material or make only such Discussions Disclosure (as\napplicable) as is legally required to be disclosed; provided that Buyer agrees to use (and to cause its applicable Representatives to use) reasonable\nefforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure will be afforded confidential treatment and the\nCompany agrees to reimburse Buyer and any such Representatives for the reasonable and documented out-of-pocket expenses incurred in connection\nwith such efforts to have such Evaluation Material or Discussions Disclosure (as applicable) afforded confidential treatment. In the event that\nCompany determines to seek such protective order or other remedy, the Buyer and any such Representative of the Buyer will reasonably cooperate\nwith the Company (at the Company's expense) in seeking such protective order or other remedy.\n2\n(d) Disclosure Permitted to Defend Dispute. Notwithstanding the foregoing provisions of this Section 2, Buyer or any of its\nRepresentatives may disclose Evaluation Material or Discussions Disclosure to the extent necessary to defend any litigation claim or cause of action\nbrought against Buyer or any of its Representatives by the Company relating to the Transaction; provided that Buyer agrees to use (and to cause its\napplicable Representatives to use) reasonable efforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure\nwill be afforded confidential treatment and the Company agrees to reimburse Buyer and any such Representatives for the reasonable and\ndocumented out-of-pocket expenses incurred in connection with such efforts to have such Evaluation Material or Discussions Disclosure (as\napplicable) afforded confidential treatment.\n3. Joint Bidding and Lock-ups.\n(a) Buyer hereby represents and warrants that Buyer is not acting as a broker for or Representative of any other Person (other than its\nAffiliates) in connection with the Transaction, and is considering the Transaction only for its own account and for the account of its Affiliates.\nExcept with the prior written consent of the Company, Buyer agrees that (i) it will not act as a joint bidder or co-bidder with any other Person with\nrespect to the Transaction, other than its Affiliates, and (ii) neither Buyer nor any of its Representatives (acting on behalf of Buyer or its Affiliates)\nwill enter into any discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other Person regarding\nthe Transaction, other than the Company and its Representatives and Buyer's Representatives (to the extent permitted hereunder).\n(b)\nBuyer hereby represents and warrants that neither it nor any of its Controlled Affiliates is party to any agreement, arrangement\nor\nunderstanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or otherwise) to any\nother Person specifically for the Transaction, and Buyer hereby agrees that (i) neither it nor any of its Controlled Affiliates will restrict the ability of\nany other Person to provide any such financing, and (ii) Buyer will direct its Affiliates (other than Controlled Affiliates) and Representatives not to\nrestrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, Buyer agrees that\nneither Buyer nor any of its Representatives will disclose any Evaluation Material or make any Discussions Disclosure to any actual or potential\nsources of financing (debt, equity or otherwise), other than bona fide third party institutional lenders who provide or are or may be engaged to\nprovide debt financing to Buyer or its Affiliates.\n4. Securities Law Restrictions. Buyer acknowledges that: (a) the Evaluation Material and information that, if disclosed, would constitute\nDiscussions Disclosure may contain material non-public information concerning the Companies and their respective Affiliates; (b) Buyer is aware of\nthe restrictions imposed by U.S. federal and state securities laws, and the rules and regulations promulgated thereunder, on Persons in possession of\nmaterial non-public information; and (c) Buyer will not (and Buyer will instruct its Representatives to not), directly or indirectly, use or allow any\nother Person to use, any Evaluation Material or information that, if disclosed, would constitute Discussions Disclosure in contravention of any U.S.\nfederal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation Material or other such information in\nfact contains material non-public information concerning the Companies or any of their respective Affiliates.\n3\n5. No Representations or Warranties. Buyer acknowledges and agrees that: (a) except as may be included in the Definitive Transaction\nAgreements, no representation or warranty, express or implied, is made by the Companies or any of their respective Representatives as to the\naccuracy or completeness of any of the Evaluation Material; and (b) Buyer shall be entitled to rely only on those representations and warranties\nthat\nare expressly set forth in any definitive written agreements that is hereafter executed and delivered by both Buyer and the Company in connection\nwith the Transaction ("Definitive Transaction Agreements"). Except as may be expressly set forth in Definitive Transaction Agreements, none of the\nCompanies or any of their respective Representatives shall have any liability to Buyer or any of its Representatives on account of the use of any\nEvaluation Material by Buyer or any of its Representatives or any inaccuracy therein or omission therefrom. Unless and until Definitive Transaction\nAgreements are entered into, neither party nor any of its Representatives, by virtue of this Agreement or any other written or oral expression, will\nbe\nunder any legal obligation of any kind whatsoever with respect to such a Transaction except for the matters specifically agreed to in this Agreement.\n6.\nDestruction or Erasure of Evaluation Material. Promptly after receipt of the Company's written request, Buyer agrees that Buyer and its\nRepresentatives shall destroy or erase all Evaluation Material (including any Evaluation Material held electronically) in the possession or control of\nBuyer or any of its Representatives, and Buyer shal certify such destruction or erasure to the Company; provided that (i) neither Buyer nor any of its\nRepresentatives shall be required to destroy or erase any electronic copy of any Evaluation Material that is created pursuant to such Person's\nstandard electronic backup and archival procedures if (x) personnel whose functions are not primarily information technology in nature do not have\naccess to such retained copies and (y) personnel whose functions are primarily information technology in nature have access to such copies only as\nreasonably necessary for the performance of their information technology duties (e.g., for purposes of system recovery) and (ii) Buyer and its\nRepresentatives may each retain one copy of any Evaluation Material to the extent required to defend or maintain any litigation relating to this\nAgreement or the Evaluation Material, or to comply with requirements of Applicable Law or established document retention policies. All such\nEvaluation Material retained in accordance with the foregoing proviso shall continue to be subject to Section 2 and Section 4.\n7. Communications Regarding the Transaction. Buyer agrees that all communications by it or any of its Representatives concerning the\nTransaction and its due diligence investigation (including requests for additional Evaluation Material, meetings with management and site visits)\nshall be directed solely to Steven G. Dean, Executive Vice President and Chief Financial Officer, except as may otherwise by approved in advance\nand in writing by the Company. Buyer agrees that, except with the prior written consent of the Company, neither Buyer nor any of its\nRepresentatives will contact or communicate with any of the directors, officers, employees, customers, suppliers, distributors, licensees, licensors,\nclients and other business relations of any of the Companies regarding the Companies or the Transaction, in each case except to the extent such\ncontacts and communications are (i) made in the ordinary course of business of Buyer or the applicable Representatives and are unrelated to the\nTransaction and the evaluation of the Transaction conducted by Buyer and its Representatives or (ii) approved in advance and in writing by the\nCompany.\n8. No Solicitation or Hiring. Buyer agrees that, except with the prior written consent of the Company, it will not, and it will not permit any of\nits\nControlled Affiliates to, directly or indirectly, solicit for employment or hire any employees of the Companies with whom it initially comes into\ncontact in connection with the Transaction for a period of 18 months after the date of this Agreement; provided that this Section 8 shall not restrict\nBuyer or any of its Controlled Affiliates from\n4\n(i) making any general solicitation for employment that is not specifically directed at any such Persons, (ii) soliciting any such Person who has left\nthe employment of the Companies at least six months prior to such solicitation, (iii) hiring any Person that is referred by a third party agency through\na general search not targeted at employees of the Companies or (iv) hiring any Person who directly submits an application for employment to Buyer\nor\nany of its Controlled Affiliates without any solicitation effort by Buyer or any of its Controlled Affiliates that would be a violation of this\nSection 8.\n9. Standstill. Unless approved in advance in writing by the board of directors of the Company, Buyer agrees that neither Buyer nor any of its\nRepresentatives acting on behalf of or in concert with Buyer (or any of its Representatives) will, from the date hereof and for a period extending until\n18\nmonths after the date on which the Company last provides Evaluation Material under this Agreement, directly or indirectly:\n(a) make any public announcement, proposal or offer with respect to (including, for the avoidance of doubt, indirectly by means of\ncommunication with the press or media) (i) any business combination, merger, tender offer, exchange offer or similar transaction involving any of\nthe Companies, (ii) any restructuring, recapitalization, liquidation or similar transaction involving any of the Companies, (iii) any acquisition of any\nof the Companies' loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Companies' loans, debt\nsecurities, equity securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control\nor influence the management, board of directors or policies of the Company, (v) any request or proposal to waive, terminate or amend the provisions\nof this Agreement or (vi) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this\nSection 9(a);\n(b) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) to vote, or seek to advise or influence any Person with respect to the voting of,\nany voting securities of the Company.\n(c) instigate, encourage or assist any third party (including forming a "group" (as defined in Section 13(d)(3) of the Securities Exchange\nAct of 1934, as amended) with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the\nactions set forth in clause (a) or (b) above;\n(d) take any action which would reasonably be expected to require the Company or any of its Affiliates to make a public announcement\nregarding any of the actions set forth in clause (a) or (b) above; or\n(e) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity\nsecurities or assets of any of the Companies or rights or options to acquire interests in any of the Companies' loans, debt securities, equity securities\nor assets.\nAs of the date of this Agreement, neither the Buyer nor any of its Controlled Affiliates owns any loans, debt securities, equity securities or assets of\nany of the Companies or rights or options to acquire interests in any of the Companies' loans, debt securities, voting securities or assets.\nThe foregoing restrictions shall not apply to any of Buyer's Representatives effecting or recommending transactions in securities (A) in the ordinary\ncourse of its business as an investment advisor, broker,\n5\ndealer in securities, market maker, specialist or block positioner and (B) not at the direction or request of Buyer or any of its Affiliates. The\nCompany acknowledges that certain of the Buyer's Affiliates are engaged in trading activities in which such Affiliates may effect transactions in the\nsecurities of the Companies or other entities in the ordinary course of business. The Company hereby agrees that nothing in this Section 9 shall\nprohibit or restrict acquisitions in the aggregate of not more than 5% of the voting securities of the Company by such Affiliates in the ordinary\ncourse of their trading activities provided they occur without the use of or access to the Evaluation Material.\n(f) Notwithstanding the foregoing provisions of this Section 9:\n(i) Buyer and its Representatives may exercise voting rights pursuant to its ownership of any securities of the Companies at any\nregular or special meeting at which such other holders of the same class of securities are entitled to vote;\n(ii) shall not restrict Buyer or any of its Representatives from making any proposal regarding a possible Transaction to\nmanagement of the Company and its advisors or directly to the board of directors of the Company on a confidential basis if such proposal does not\nrequire the Company to make a public announcement regarding this Agreement, a possible Transaction or any of the matters described in this\nSection 9; provided, however, that, from and after the date on which the Company shall have recommended, publicly proposed or publicly\nannounced an intention to authorize, recommend or propose, or shall have entered into an agreement with any Person (other than Buyer or\nits\nAffiliates) to effect or participate in a transaction of the type contemplated by clause (a) above, any such communications may be made to\nmanagement of the Company and its advisors or directly to the board of directors of the Company without regard to whether to Company would or\nmight be required to make a public announcement with respect thereto until such time as such Transaction closes or is terminated or abandoned by\nthe parties thereto; and\n(iii) Buyer and its Representatives may purchase goods or services of the Companies or submit proposals for the purchase or\nsale\nof goods or services to the Companies in the ordinary course of business.\n10. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach or\nthreatened breach, in addition to all other remedies available at law or in equity. Such injunctive or other equitable relief shall be available without\nthe obligation to prove any damages underlying such breach or threatened breach. Each party agrees that it will not petition or otherwise attempt to\nrequire the posting of a bond or other security in connection with any attempt by any other party to seek such injunctive or other equitable relief. No\nfailure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal\nproceedings relating to this Agreement, the reasonable costs and expenses incurred by the prevailing party and its Representatives in connection with\nsuch proceedings, including attorney fees and disbursements, shall be reimbursed by the non-prevailing party.\n11. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, none of the\nCompanies waives or is waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client\nprivileges or similar protections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or\nthreatened litigation) to Buyer or any of its Representatives.\n6\n12. Liability for Representatives. Buyer shall be liable for any breaches of this Agreement by any of its Representatives, except for breaches\ncommitted by any Representative that is party to either (a) a separate joinder agreement among such Representative, Buyer and the Company in the\nform set forth as Exhibit A hereto or (b) a separate mutually acceptable confidentiality agreement between such Representative and the Company\nwith respect to the Evaluation Material.\n13. Term. Except for Sections 6 (Destruction or Erasure of Evaluation Material) and 14(i) (Governing Law; Forum), which shall\nbe\nbinding\nin\nperpetuity or until the latest date permitted by Applicable Law, this Agreement shall expire upon the date that is two years after the date of this\nAgreement.\n14. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed by\nany offering memorandum, web-based database or similar repository of Evaluation Material to which Buyer or any of its Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, "clicking" on an "I Agree" icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to the Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n(c) Competing Activities. Subject to Buyer's compliance with its obligations with respect to the nondisclosure and use of the Evaluation\nMaterial, nothing in this Agreement shall prevent Buyer or any of its Representatives from evaluating a possible investment in and/or collaborating\nwith,\nor\nentering into any transaction with (including an investment in), or monitoring, managing, maintaining or otherwise acting with respect to\nan\ninvestment in, any Person whose business is similar to or competitive with the business of the Companies. The Company acknowledges that Buyer\nand its Representatives conduct business with many Persons, some of which may engage in or pursue businesses and strategies that are similar to or\ncompetitive with those of the Companies. Although Buyer is subject to the obligations set forth in this Agreement, the occurrence or existence of\nsuch similar or competitive activities shall not by itself be cause for any action or allegation by the Company that Buyer or any of its Representatives\nhas failed to observe any of the obligations set forth in this Agreement.\n(d) Ownership of Evaluation Material; No License. All Evaluation Material prepared by or on behalf of the Companies is and shall\nremain property of the applicable Companies. Buyer acknowledges and agrees that none of the Companies nor any of their respective\nRepresentatives grants any license or other property right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work,\ndatabase or other intellectual or intangible property or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation\nMaterial prepared by or on behalf of the Companies.\n7\n(e) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the assets of the Companies shall be entitled to the benefits of this Agreement, whether or not this\nAgreement is assigned to such purchaser.\n(f) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Buyer and the Company.\n(g) Severability.. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(h) No Obligation To Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party to (i) consummate a Transaction, (ii) conduct or continue discussions or negotiations concerning a Transaction, (iii) enter\ninto a joint venture or other business relationship of any kind or (iv) enter into or negotiate Definitive Transaction Agreements. Except with respect\nto the matters specifically set forth herein, neither party shall have any rights or obligations of any kind whatsoever with respect to a Transaction by\nvirtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and until Definitive\nTransaction Agreements is executed and delivered. Buyer acknowledge that the Company reserves the right to (A) provide or not provide Evaluation\nMaterial to, and to request the destruction or erasure of Evaluation Material by, Buyer or any of its Representatives, (B) reject any proposals made\nby\nBuyer or any of its Representatives, (C) terminate discussions or negotiations with Buyer or any of its Representatives and (D) engage in discussions\nand/or negotiations, and to enter into any agreement, with any other Person, in each case in the Company's sole discretion, without notice to Buyer\nor\nany\nof\nits\nRepresentatives,\nat\nany\ntime\nand\nfor\nany\nreason\nor\nno\nreason.\nBuyer\nshall\nnot\nhave\nany\nclaim\nor\ncause\nof\naction\nagainst\nthe\nCompanies\nor any of their respective Representatives in respect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement, if any,\nthat is hereafter executed.\n(i) Governing. Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise\nout of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance\nwith, the laws of the State of Delaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in\nthe\nevent that the Delaware Court of Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal\nproceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action\nor legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may\nnow or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal\nproceeding brought in any such court has been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons,\nnotice or document by U.S. registered mail addressed to such party shall be effective service of process for any such suit, action or proceeding\nbrought against such party in any such court. Each party hereto agrees that a final judgment in any such suit, action or proceeding brought in any\nsuch court shall be conclusive and binding upon such party and may be enforced in any other courts to whose jurisdiction such party is or may be\nsubject by suit upon such judgment.\n8\n(j) Waiver of Conflicts. Buyer hereby acknowledges that Dechert LLP ("Dechert") represents the Company, and if for any reason\nDechert's representation of the Company in negotiations with Buyer would create a conflict of interest, because of Dechert's representation of Buyer\nin other unrelated matters or otherwise, Buyer hereby waives any such conflict and agrees that Dechert may represent the Company in connection\nwith the Transaction, including in any litigation that might result.\n(k) Counterparts. This Agreement may be signed in any number of counterparts (including by fax or PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto.\n9\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to John B. Crowe, whereupon this Agreement\nshall constitute our binding agreement with respect to the matters set forth herein.\nVery truly yours,\nBUCKEYE TECHNOLOGIES INC.\nBy:\n/s/ John B. Crowe\nName: John B. Crowe\nTitle: Chairman of the Board and Chief Executive\nOfficer\nAccepted and agreed to\nas of the date first written above:\nGEORGIA-PACIFIC LLC\nBy:\n/s/ David G. Park\nName: David G. Park\nTitle:\nSenior Vice President - Strategy and\nBusiness Development\n10\nExhibit A\nJOINDER AGREEMENT\n[Date]\n[Name of Representative]\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nAttention: John Crowe\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E.\nAtlanta, GA 30303\nAttention: David G. Park\nLadies and Gentlemen:\nWe refer to the attached confidentiality agreement dated January 30, 2013 (the "Confidentiality. Agreement") between Georgia-Pacific LLC\n("Buyer") and Buckeye Technologies Inc. (the "Company."). Capitalized terms used below that are defined in the Confidentiality Agreement are\nused with the meanings given such terms in the Confidentiality Agreement.\nThe undersigned is a Representative of Buyer ("Buyer's Representative"). Buyer's Representative hereby agrees, for the benefit of Buyer and the\nCompany, to be bound on behalf of itself and its Representatives by the obligations with respect to Buyer's Representatives contained in Sections\n2,\n3, 6, and 7 of the Confidentiality Agreement (the "Obligations") as if it were a party thereto.\nThe parties hereto acknowledge and agree that the signing of this agreement (this "Agreement") does not obligate any Person to enter into the\nTransaction or to provide financing for the Transaction. Buyer acknowledges and agrees that Buyer's Representative shall not be restricted from\nbeing engaged or mandated by, or otherwise assisting or participating with, any other Person in any transaction that is similar to or competitive with\nthe Transaction but Buyer's Representative must comply with the Obligations as provided herein. Additionally, nothing herein or in the\nConfidentiality Agreement shall prohibit Buyer's Representative from disclosing to any third party who contacts Buyer's Representative to act as\na\npotential financing source with respect to a transaction that is similar to or competitive with the Transaction, the fact that it is working with\nanother\nPerson with respect to a transaction with the Company, so long as it keeps confidential the identity of Buyer and otherwise complies with the\nObligations.\nNo failure or delay by Buyer or the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any\nother or further exercise thereof or the exercise of any other right, power or privilege hereunder.\nBuyer's Representative agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement and that\nBuyer and the Company shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach or threatened breach, in addition to all other remedies available\nat law or in equity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees that it will not petition or otherwise attempt to require the posting of a bond or other security in connection with\nany attempt by any other party to seek such injunctive or other equitable relief.\nThis Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or\nthe negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance with, the laws of the State of\nDelaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the event that the Delaware Court\nof\nChancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal proceeding relating to or arising\nout of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action or legal proceeding relating\nthereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may now or hereafter have to the\nlaying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal proceeding brought in any such court\nhas\nbeen brought in an inconvenient forum. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered\nmail addressed to such party shall be effective service of process for any such suit, action or proceeding brought against such party in any such court.\nEach party hereto agrees that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon\nsuch party and may be enforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\nThis Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the signatures to each\ncounterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This Agreement shall\nbecome effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other parties hereto.\n[Signature page follows]\n2\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to [CONTACTI, whereupon this Agreement\nshall constitute our binding agreement with respect to the matters set forth herein.\nVery truly yours,\n[BUYER'S REPRESENTATIVE]\nBy:\nName:\nTitle:\nAccepted and agreed:\nGEORGIA-PACIFIC LLC\nBy:\nName:\nTitle:\nBUCKEYE TECHNOLOGIES INC.\nBy:\nName:\nTitle:\n3	EX-99.(D)(3) 13 d528890dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nJanuary 30, 2013\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E .\nAtlanta, GA 30303\nAttention: David G. Park\nDear Mr. Park:\nGeorgia-Pacific LLC (“Buyer”) has requested certain non-public information regarding Buckeye Technologies Inc. (the “Company”) and its\nsubsidiaries (collectively, the “Companies”) in connection with a potential negotiated transaction (the “Transaction”) between Buyer and the\nCompany. As a condition to furnishing such information to Buyer, the Company and Buyer agree to the following provisions:\n1. Certain Definitions. As used in this letter agreement (this “ Agreement”):\n(a) “Affiliate” means, with respect to any Person, any other Person that is directly or indirectly Controlling, Controlled by or under\ncommon Control with such Person, where “Control” and derivative terms mean the possession, directly or indirectly, of the power to direct or cause\nthe direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.\n(b) “Evaluation Material” means any information or data concerning any of the Companies or any of their respective Affiliates, whether\nin oral, visual, written, electronic or other form, that is disclosed to Buyer or any of its Representatives before the date hereof, now or in the future by\nany of the Companies or any of their respective Representatives, together with all notes, memoranda, summaries, analyses, compilations and other\nwritings relating thereto that are prepared by Buyer or any of its Representatives to the extent that they use, contain, reflect or are derived from or\nincorporate any such information or data. Notwithstanding the foregoing, “Evaluation Material” does not include any information or data that: (i) is\nor was independently developed by Buyer or any of its Representatives without reference to the Evaluation Material; (ii) is or becomes available to\nthe public, other than as a result of disclosure by Buyer or any of its Representatives in breach of this Agreement; (iii) is or becomes available to\nBuyer or any of its Representatives on a non-confidential basis from a source other than any of the Companies or any of their respective\nRepresentatives, so long as Buyer or its Representatives, after reasonable inquiry, have no reason to believe that such source is bound by an\nobligation of confidentiality or secrecy to the Companies; or (iv) is in Buyer or its Representatives possession prior to the date of this Agreement.\n(c) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) “Representatives” means, with respect to any Person, the Affiliates of such Person and any of such Person’s and its Affiliates\nrespective directors, employees, managing members, general partners, attorneys, accountants, investment bankers, financial advisors, consultants and\nother advisors, together with any actual or potential sources of debt financing for such Person or its Affiliates.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. Buyer agrees that Buyer and its Representatives shall (i) use the Evaluation Material\nsolely for the purpose of evaluating, negotiating and consummating the Transaction; (ii) except as otherwise permitted by this Section 2 or\nSection 3(c), keep all Evaluation Material strictly confidential; and (iii) disclose Evaluation Material only to Representatives of Buyer to whom\ndisclosure is needed to facilitate Buyer’s evaluation, negotiation and/or consummation of the Transaction. Before Buyer or any of its Representatives\nprovides access to any Evaluation Material to any of its Representatives, Buyer agrees that it or one of its Representatives shall inform such\nRepresentative of the confidential nature of the Evaluation Material.\n(b) Discussion Disclosure. Except for such disclosure as is necessary not to be in violation of any applicable law, regulation, order or\nother similar requirement of any governmental, regulatory or supervisory authority or any applicable listing agreement (together, “Applicable Law”),\nBuyer and the Company each agrees that, without the prior written consent of the other party, neither it nor any of its Representatives shall: (i) make\nany disclosure to any other Person (other than such party’s Representatives to whom disclosure is needed to facilitate Buyer ’s evaluation, negotiation\nand/or consummation of the Transaction) of (A) the fact that investigations, discussions or negotiations are taking or have taken place concerning the\nTransaction, (B) the existence or contents of this Agreement, (C) the fact that Buyer and/or any of its Representatives have requested or received\nEvaluation Material, conducted due diligence or attended management meetings or site visits with any of the Companies or any of their respective\nRepresentatives or are otherwise considering the Transaction or (D) any of the terms, conditions or facts relating to the Transaction, including the\nstatus thereof; or (ii) make any public statement concerning the Transaction (any disclosure or statement described in clauses (i) or (ii) being\n“Discussions Disclosure”). Notwithstanding the foregoing, the Company may disclose to other potential buyers that it is considering, investigating,\ndiscussing or negotiating a Transaction and the terms and conditions thereof but may not disclose the involvement therein of Buyer or its\nRepresentatives or any other information identifying the involvement of Buyer or its Representatives.\n(c) Compulsory Disclosure. If Buyer or any of its Representatives is requested or required by interrogatories, requests for information\nfrom a governmental, regulatory or supervisory authority, subpoena or similar legal process to disclose any Evaluation Material or Discussions\nDisclosure, or Buyer believes that any Discussions Disclosure is required for Buyer or any of its Representatives not to be in violation of Applicable\nLaw, Buyer shall provide the Company with prompt prior written notice thereof, to the extent not prohibited by Applicable Law, so that the\nCompany may seek an appropriate protective order and/or, in the sole discretion of the Company, waive compliance by Buyer or its applicable\nRepresentatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, Buyer or any of its\nRepresentatives is nonetheless legally compelled to disclose any Evaluation Material or Discussions Disclosure, then Buyer or such Representatives\nmay, without liability under this Agreement, disclose only such portion of the Evaluation Material or make only such Discussions Disclosure (as\napplicable) as is legally required to be disclosed; provided that Buyer agrees to use (and to cause its applicable Representatives to use) reasonable\nefforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure will be afforded confidential treatment and the\nCompany agrees to reimburse Buyer and any such Representatives for the reasonable and documented out-of-pocket expenses incurred in connection\nwith such efforts to have such Evaluation Material or Discussions Disclosure (as applicable) afforded confidential treatment. In the event that\nCompany determines to seek such protective order or other remedy, the Buyer and any such Representative of the Buyer will reasonably cooperate\nwith the Company (at the Company’s expense) in seeking such protective order or other remedy.\n2\n(d) Disclosure Permitted to Defend Dispute. Notwithstanding the foregoing provisions of this Section 2, Buyer or any of its\nRepresentatives may disclose Evaluation Material or Discussions Disclosure to the extent necessary to defend any litigation claim or cause of action\nbrought against Buyer or any of its Representatives by the Company relating to the Transaction; provided that Buyer agrees to use (and to cause its\napplicable Representatives to use) reasonable efforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure\nwill be afforded confidential treatment and the Company agrees to reimburse Buyer and any such Representatives for the reasonable and\ndocumented out-of-pocket expenses incurred in connection with such efforts to have such Evaluation Material or Discussions Disclosure (as\napplicable) afforded confidential treatment.\n3. Joint Bidding and Lock-ups.\n(a) Buyer hereby represents and warrants that Buyer is not acting as a broker for or Representative of any other Person (other than its\nAffiliates) in connection with the Transaction, and is considering the Transaction only for its own account and for the account of its Affiliates.\nExcept with the prior written consent of the Company, Buyer agrees that (i) it will not act as a joint bidder or co-bidder with any other Person with\nrespect to the Transaction, other than its Affiliates, and (ii) neither Buyer nor any of its Representatives (acting on behalf of Buyer or its Affiliates)\nwill enter into any discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other Person regarding\nthe Transaction, other than the Company and its Representatives and Buyer’s Representatives (to the extent permitted hereunder).\n(b) Buyer hereby represents and warrants that neither it nor any of its Controlled Affiliates is party to any agreement, arrangement or\nunderstanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or otherwise) to any\nother Person specifically for the Transaction, and Buyer hereby agrees that (i) neither it nor any of its Controlled Affiliates will restrict the ability of\nany other Person to provide any such financing, and (ii) Buyer will direct its Affiliates (other than Controlled Affiliates) and Representatives not to\nrestrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, Buyer agrees that\nneither Buyer nor any of its Representatives will disclose any Evaluation Material or make any Discussions Disclosure to any actual or potential\nsources of financing (debt, equity or otherwise), other than bona fide third party institutional lenders who provide or are or may be engaged to\nprovide debt financing to Buyer or its Affiliates.\n4. Securities Law Restrictions. Buyer acknowledges that: (a) the Evaluation Material and information that, if disclosed, would constitute\nDiscussions Disclosure may contain material non-public information concerning the Companies and their respective Affiliates; (b) Buyer is aware of\nthe restrictions imposed by U.S . federal and state securities laws, and the rules and regulations promulgated thereunder, on Persons in possession of\nmaterial non-public information; and (c) Buyer will not (and Buyer will instruct its Representatives to not), directly or indirectly, use or allow any\nother Person to use, any Evaluation Material or information that, if disclosed, would constitute Discussions Disclosure in contravention of any U.S .\nfederal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation Material or other such information in\nfact contains material non-public information concerning the Companies or any of their respective Affiliates.\n3\n5. No Representations or Warranties. Buyer acknowledges and agrees that: (a) except as may be included in the Definitive Transaction\nAgreements, no representation or warranty, express or implied, is made by the Companies or any of their respective Representatives as to the\naccuracy or completeness of any of the Evaluation Material; and (b) Buyer shall be entitled to rely only on those representations and warranties that\nare expressly set forth in any definitive written agreements that is hereafter executed and delivered by both Buyer and the Company in connection\nwith the Transaction (“Definitive Transaction Agreements”). Except as may be expressly set forth in Definitive Transaction Agreements, none of the\nCompanies or any of their respective Representatives shall have any liability to Buyer or any of its Representatives on account of the use of any\nEvaluation Material by Buyer or any of its Representatives or any inaccuracy therein or omission therefrom. Unless and until Definitive Transaction\nAgreements are entered into, neither party nor any of its Representatives, by virtue of this Agreement or any other written or oral expression, will be\nunder any legal obligation of any kind whatsoever with respect to such a Transaction except for the matters specifically agreed to in this Agreement.\n6. Destruction or Erasure of Evaluation Material. Promptly after receipt of the Company’s written request, Buyer agrees that Buyer and its\nRepresentatives shall destroy or erase all Evaluation Material (including any Evaluation Material held electronically) in the possession or control of\nBuyer or any of its Representatives, and Buyer shall certify such destruction or erasure to the Company; provided that (i) neither Buyer nor any of its\nRepresentatives shall be required to destroy or erase any electronic copy of any Evaluation Material that is created pursuant to such Person’s\nstandard electronic backup and archival procedures if (x) personnel whose functions are not primarily information technology in nature do not have\naccess to such retained copies and (y) personnel whose functions are primarily information technology in nature have access to such copies only as\nreasonably necessary for the performance of their information technology duties (e.g., for purposes of system recovery) and (ii) Buyer and its\nRepresentatives may each retain one copy of any Evaluation Material to the extent required to defend or maintain any litigation relating to this\nAgreement or the Evaluation Material, or to comply with requirements of Applicable Law or established document retention policies. All such\nEvaluation Material retained in accordance with the foregoing proviso shall continue to be subject to Section 2 and Section 4.\n7. Communications Regarding the Transaction. Buyer agrees that all communications by it or any of its Representatives concerning the\nTransaction and its due diligence investigation (including requests for additional Evaluation Material, meetings with management and site visits)\nshall be directed solely to Steven G. Dean, Executive Vice President and Chief Financial Officer, except as may otherwise by approved in advance\nand in writing by the Company. Buyer agrees that, except with the prior written consent of the Company, neither Buyer nor any of its\nRepresentatives will contact or communicate with any of the directors, officers, employees, customers, suppliers, distributors, licensees, licensors,\nclients and other business relations of any of the Companies regarding the Companies or the Transaction, in each case except to the extent such\ncontacts and communications are (i) made in the ordinary course of business of Buyer or the applicable Representatives and are unrelated to the\nTransaction and the evaluation of the Transaction conducted by Buyer and its Representatives or (ii) approved in advance and in writing by the\nCompany.\n8. No Solicitation or Hiring. Buyer agrees that, except with the prior written consent of the Company, it will not, and it will not permit any of\nits Controlled Affiliates to, directly or indirectly, solicit for employment or hire any employees of the Companies with whom it initially comes into\ncontact in connection with the Transaction for a period of 18 months after the date of this Agreement; provided that this Section 8 shall not restrict\nBuyer or any of its Controlled Affiliates from\n4\n(i) making any general solicitation for employment that is not specifically directed at any such Persons, (ii) soliciting any such Person who has left\nthe employment of the Companies at least six months prior to such solicitation, (iii) hiring any Person that is referred by a third party agency through\na general search not targeted at employees of the Companies or (iv) hiring any Person who directly submits an application for employment to Buyer\nor any of its Controlled Affiliates without any solicitation effort by Buyer or any of its Controlled Affiliates that would be a violation of this\nSection 8.\n9. Standstill. Unless approved in advance in writing by the board of directors of the Company, Buyer agrees that neither Buyer nor any of its\nRepresentatives acting on behalf of or in concert with Buyer (or any of its Representatives) will, from the date hereof and for a period extending until\n18 months after the date on which the Company last provides Evaluation Material under this Agreement, directly or indirectly:\n(a) make any public announcement, proposal or offer with respect to (including, for the avoidance of doubt, indirectly by means of\ncommunication with the press or media) (i) any business combination, merger, tender offer, exchange offer or similar transaction involving any of\nthe Companies, (ii) any restructuring, recapitalization, liquidation or similar transaction involving any of the Companies, (iii) any acquisition of any\nof the Companies’ loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Companies’ loans, debt\nsecurities, equity securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control\nor influence the management, board of directors or policies of the Company, (v) any request or proposal to waive, terminate or amend the provisions\nof this Agreement or (vi) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this\nSection 9(a);\n(b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) to vote, or seek to advise or influence any Person with respect to the voting of,\nany voting securities of the Company.\n(c) instigate, encourage or assist any third party (including forming a “group” (as defined in Section 13(d)(3) of the Securities Exchange\nAct of 1934, as amended) with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the\nactions set forth in clause (a) or (b) above;\n(d) take any action which would reasonably be expected to require the Company or any of its Affiliates to make a public announcement\nregarding any of the actions set forth in clause (a) or (b) above; or\n(e) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity\nsecurities or assets of any of the Companies or rights or options to acquire interests in any of the Companies’ loans, debt securities, equity securities\nor assets.\nAs of the date of this Agreement, neither the Buyer nor any of its Controlled Affiliates owns any loans, debt securities, equity securities or assets of\nany of the Companies or rights or options to acquire interests in any of the Companies’ loans, debt securities, voting securities or assets.\nThe foregoing restrictions shall not apply to any of Buyer’s Representatives effecting or recommending transactions in securities (A) in the ordinary\ncourse of its business as an investment advisor, broker,\n5\ndealer in securities, market maker, specialist or block positioner and (B) not at the direction or request of Buyer or any of its Affiliates. The\nCompany acknowledges that certain of the Buyer’s Affiliates are engaged in trading activities in which such Affiliates may effect transactions in the\nsecurities of the Companies or other entities in the ordinary course of business. The Company hereby agrees that nothing in this Section 9 shall\nprohibit or restrict acquisitions in the aggregate of not more than 5% of the voting securities of the Company by such Affiliates in the ordinary\ncourse of their trading activities provided they occur without the use of or access to the Evaluation Material.\n(f) Notwithstanding the foregoing provisions of this Section 9:\n(i) Buyer and its Representatives may exercise voting rights pursuant to its ownership of any securities of the Companies at any\nregular or special meeting at which such other holders of the same class of securities are entitled to vote;\n(ii) shall not restrict Buyer or any of its Representatives from making any proposal regarding a possible Transaction to\nmanagement of the Company and its advisors or directly to the board of directors of the Company on a confidential basis if such proposal does not\nrequire the Company to make a public announcement regarding this Agreement, a possible Transaction or any of the matters described in this\nSection 9; provided, however, that, from and after the date on which the Company shall have recommended, publicly proposed or publicly\nannounced an intention to authorize, recommend or propose, or shall have entered into an agreement with any Person (other than Buyer or its\nAffiliates) to effect or participate in a transaction of the type contemplated by clause (a) above, any such communications may be made to\nmanagement of the Company and its advisors or directly to the board of directors of the Company without regard to whether to Company would or\nmight be required to make a public announcement with respect thereto until such time as such Transaction closes or is terminated or abandoned by\nthe parties thereto; and\n(iii) Buyer and its Representatives may purchase goods or services of the Companies or submit proposals for the purchase or sale\nof goods or services to the Companies in the ordinary course of business.\n10. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach or\nthreatened breach, in addition to all other remedies available at law or in equity. Such injunctive or other equitable relief shall be available without\nthe obligation to prove any damages underlying such breach or threatened breach. Each party agrees that it will not petition or otherwise attempt to\nrequire the posting of a bond or other security in connection with any attempt by any other party to seek such injunctive or other equitable relief. No\nfailure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal\nproceedings relating to this Agreement, the reasonable costs and expenses incurred by the prevailing party and its Representatives in connection with\nsuch proceedings, including attorney fees and disbursements, shall be reimbursed by the non-prevailing party.\n11. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, none of the\nCompanies waives or is waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client\nprivileges or similar protections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or\nthreatened litigation) to Buyer or any of its Representatives.\n6\n12. Liability for Representatives. Buyer shall be liable for any breaches of this Agreement by any of its Representatives, except for breaches\ncommitted by any Representative that is party to either (a) a separate joinder agreement among such Representative, Buyer and the Company in the\nform set forth as Exhibit A hereto or (b) a separate mutually acceptable confidentiality agreement between such Representative and the Company\nwith respect to the Evaluation Material.\n13. Term. Except for Sections 6 (Destruction or Erasure of Evaluation Material) and 14(i) (Governing Law; Forum), which shall be binding in\nperpetuity or until the latest date permitted by Applicable Law, this Agreement shall expire upon the date that is two years after the date of this\nAgreement.\n14. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed by\nany offering memorandum, web-based database or similar repository of Evaluation Material to which Buyer or any of its Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to the Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n(c) Competing Activities. Subject to Buyer’s compliance with its obligations with respect to the nondisclosure and use of the Evaluation\nMaterial, nothing in this Agreement shall prevent Buyer or any of its Representatives from evaluating a possible investment in and/or collaborating\nwith, or entering into any transaction with (including an investment in), or monitoring, managing, maintaining or otherwise acting with respect to an\ninvestment in, any Person whose business is similar to or competitive with the business of the Companies. The Company acknowledges that Buyer\nand its Representatives conduct business with many Persons, some of which may engage in or pursue businesses and strategies that are similar to or\ncompetitive with those of the Companies. Although Buyer is subject to the obligations set forth in this Agreement, the occurrence or existence of\nsuch similar or competitive activities shall not by itself be cause for any action or allegation by the Company that Buyer or any of its Representatives\nhas failed to observe any of the obligations set forth in this Agreement.\n(d) Ownership of Evaluation Material; No License. All Evaluation Material prepared by or on behalf of the Companies is and shall\nremain property of the applicable Companies. Buyer acknowledges and agrees that none of the Companies nor any of their respective\nRepresentatives grants any license or other property right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work,\ndatabase or other intellectual or intangible property or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation\nMaterial prepared by or on behalf of the Companies.\n7\n(e) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the assets of the Companies shall be entitled to the benefits of this Agreement, whether or not this\nAgreement is assigned to such purchaser.\n(f) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Buyer and the Company.\n(g) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(h) No Obligation To Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party to (i) consummate a Transaction, (ii) conduct or continue discussions or negotiations concerning a Transaction, (iii) enter\ninto a joint venture or other business relationship of any kind or (iv) enter into or negotiate Definitive Transaction Agreements. Except with respect\nto the matters specifically set forth herein, neither party shall have any rights or obligations of any kind whatsoever with respect to a Transaction by\nvirtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and until Definitive\nTransaction Agreements is executed and delivered. Buyer acknowledge that the Company reserves the right to (A) provide or not provide Evaluation\nMaterial to, and to request the destruction or erasure of Evaluation Material by, Buyer or any of its Representatives, (B) reject any proposals made by\nBuyer or any of its Representatives, (C) terminate discussions or negotiations with Buyer or any of its Representatives and (D) engage in discussions\nand/or negotiations, and to enter into any agreement, with any other Person, in each case in the Company’s sole discretion, without notice to Buyer\nor any of its Representatives, at any time and for any reason or no reason. Buyer shall not have any claim or cause of action against the Companies\nor any of their respective Representatives in respect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement, if any,\nthat is hereafter executed.\n(i) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise\nout of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance\nwith, the laws of the State of Delaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the\nevent that the Delaware Court of Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal\nproceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action\nor legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may\nnow or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal\nproceeding brought in any such court has been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons,\nnotice or document by U.S. registered mail addressed to such party shall be effective service of process for any such suit, action or proceeding\nbrought against such party in any such court. Each party hereto agrees that a final judgment in any such suit, action or proceeding brought in any\nsuch court shall be conclusive and binding upon such party and may be enforced in any other courts to whose jurisdiction such party is or may be\nsubject by suit upon such judgment.\n8\n(j) Waiver of Conflicts. Buyer hereby acknowledges that Dechert LLP (“Dechert”) represents the Company, and if for any reason\nDechert’s representation of the Company in negotiations with Buyer would create a conflict of interest, because of Dechert’s representation of Buyer\nin other unrelated matters or otherwise, Buyer hereby waives any such conflict and agrees that Dechert may represent the Company in connection\nwith the Transaction, including in any litigation that might result.\n(k) Counterparts. This Agreement may be signed in any number of counterparts (including by fax or PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto.\n9\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to John B. Crowe, whereupon this Agreement\nshall constitute our binding agreement with respect to the matters set forth herein.\nVery truly yours,\nBUCKEYE TECHNOLOGIES INC.\nBy: /s/ John B. Crowe\nName: John B. Crowe\nTitle: Chairman of the Board and Chief Executive\nOfficer\nAccepted and agreed to\nas of the date first written above:\nGEORGIA-PACIFIC LLC\nBy: /s/ David G. Park\nName: David G. Park\nTitle: Senior Vice President – Strategy and\nBusiness Development\n10\nExhibit A\nJOINDER AGREEMENT\n[Date]\n[Name of Representative]\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nAttention: John Crowe\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E .\nAtlanta, GA 30303\nAttention: David G. Park\nLadies and Gentlemen:\nWe refer to the attached confidentiality agreement dated January 30, 2013 (the “Confidentiality Agreement”) between Georgia-Pacific LLC\n(“Buyer”) and Buckeye Technologies Inc. (the “Company”). Capitalized terms used below that are defined in the Confidentiality Agreement are\nused with the meanings given such terms in the Confidentiality Agreement.\nThe undersigned is a Representative of Buyer (“Buyer’s Representative”). Buyer’s Representative hereby agrees, for the benefit of Buyer and the\nCompany, to be bound on behalf of itself and its Representatives by the obligations with respect to Buyer’s Representatives contained in Sections 2,\n3, 6, and 7 of the Confidentiality Agreement (the “Obligations”) as if it were a party thereto.\nThe parties hereto acknowledge and agree that the signing of this agreement (this “Agreement”) does not obligate any Person to enter into the\nTransaction or to provide financing for the Transaction. Buyer acknowledges and agrees that Buyer ’s Representative shall not be restricted from\nbeing engaged or mandated by, or otherwise assisting or participating with, any other Person in any transaction that is similar to or competitive with\nthe Transaction, but Buyer’s Representative must comply with the Obligations as provided herein. Additionally, nothing herein or in the\nConfidentiality Agreement shall prohibit Buyer’s Representative from disclosing to any third party who contacts Buyer’s Representative to act as a\npotential financing source with respect to a transaction that is similar to or competitive with the Transaction, the fact that it is working with another\nPerson with respect to a transaction with the Company, so long as it keeps confidential the identity of Buyer and otherwise complies with the\nObligations.\nNo failure or delay by Buyer or the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any\nother or further exercise thereof or the exercise of any other right, power or privilege hereunder.\nBuyer’s Representative agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement and that\nBuyer and the Company shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach or threatened breach, in addition to all other remedies available\nat law or in equity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees that it will not petition or otherwise attempt to require the posting of a bond or other security in connection with\nany attempt by any other party to seek such injunctive or other equitable relief.\nThis Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or\nthe negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance with, the laws of the State of\nDelaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the event that the Delaware Court\nof Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal proceeding relating to or arising\nout of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action or legal proceeding relating\nthereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may now or hereafter have to the\nlaying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal proceeding brought in any such court\nhas been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered\nmail addressed to such party shall be effective service of process for any such suit, action or proceeding brought against such party in any such court.\nEach party hereto agrees that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon\nsuch party and may be enforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\nThis Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the signatures to each\ncounterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This Agreement shall\nbecome effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other parties hereto.\n[Signature page follows]\n2\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to [CONTACT], whereupon this Agreement\nshall constitute our binding agreement with respect to the matters set forth herein.\nVery truly yours,\n[BUYER’S REPRESENTATIVE]\nBy:\nName:\nTitle:\nAccepted and agreed:\nGEORGIA-PACIFIC LLC\nBy:\nName:\nTitle:\nBUCKEYE TECHNOLOGIES INC.\nBy:\nName:\nTitle:\n3
1bff75467e9f1585cf9913482d578d74.pdf	effective_date jurisdiction party term	EX-99.(D)(6) 14 d701401dex99d6.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(6)\nDecember 20, 2013\nPRIVATE AND CONFIDENTIAL\nMr. Mark Anderson, Managing Director\nMr. Lawrence Fey, Principal\nMr. Stephen Master, Vice President\nGTCR LLC\n300 N. LaSalle St.\nSuite 5600\nChicago, IL 60654\nRe: Non-Disclosure Agreement\nGentlemen:\nIn connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware\ncorporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make\ncertain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As\na condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in\nstrict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the\nother actions as hereinafter expressly set forth.\nAs used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective\ndirectors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal\ncounsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed)\nof the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term\n“affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as\namended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without\nlimitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.\n1. Evaluation Material.\nAs used in this Agreement, the term “ Evaluation Material” means all information concerning the Company (whether furnished on or after\nthe date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and\nirrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your\nRepresentatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the\ninformation that the Company or the\nNon-Disclosure Agreement\nPage 2\nCompany’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has\nbecome generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was\nwithin your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not\nknown by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-\nconfidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and\nshould not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation\nof confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without\nreference to any confidential information disclosed by the Company.\n2. Evaluation Material and Confidentiality.\nYou and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a\nTransaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and,\nexcept as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the\nprior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to\nknow the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a\nTransaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement.\nYou shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all\ncommercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including\nin legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you\nnor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any\nbusiness or customer of the Company, or otherwise use any such information competitively against the Company.\n3. Transaction Information, Discussions and Confidentiality.\nExcept as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of\nyour Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made\navailable to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that\ndiscussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any\nof the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the\nCompany’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to\ncollectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the\nprior written consent\nNon-Disclosure Agreement\nPage 3\nof Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement,\nunderstanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a\nTransaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt\nfinancing source.\n4. Legally Compelled Disclosure.\nIf you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal\nproceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any\nTransaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement,\nrequest or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s\nsole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such\nRepresentative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or\nother remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the\nadvice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to\nany tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such\nRepresentative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative\ndetermine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such\nRepresentative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so\ndisclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such\ntribunal or other public or governmental authority.\n5. Termination of Discussions at Any Time Return of Evaluation Material.\nAt any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event\nno later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies,\nextracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on\nbehalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete\ncopy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you\nand to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization\nand within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted\naccess to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of\nEvaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing\ncompliance with any applicable\nNon-Disclosure Agreement\nPage 4\nlaws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this\nAgreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in\ncounsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by\nyou or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their\nconfidentiality obligations hereunder.\n6. Privileged Information.\nThe furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any\nattorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The\nparties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose,\nthey (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges\nand protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In\nfurtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege,\nattorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent\nagreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.\n7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.\nThe Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form\nthereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its\nRepresentatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of\nany of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that\nneither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or\nresulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions\ntherefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not\nentitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or\nwarranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties\nhereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.\nNon-Disclosure Agreement\nPage 5\n8. Standstill.\nYou agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your\naffiliates, directly or indirectly, shall:\n(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or\nright thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or\nexchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the\nCompany;\n(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any\nDerivative Securities (as defined below);\n(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the\nrules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in\nrespect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of\nauthority of or abstention from voting), any Voting Securities of the Company;\n(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of\nindependent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates,\nRepresentatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent,\ninquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger,\nconsolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash\nor property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or\nbusinesses;\n(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in\nconnection with any Voting Securities of the Company;\n(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs\nof the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to\nhave called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the\nvoting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder\nproposals);\nNon-Disclosure Agreement\nPage 6\n(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in\nclause “(a)” or “(d)” of this sentence;\n(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver\nof, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public\ndisclosure of such request or proposal;\n(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written)\nwith, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any\nperson in connection with any of the foregoing; or\n(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in\nrelation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your\ncontrolled affiliates) and the Company;\nprovided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it\nhas entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity\nsecurities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly\nannounces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or\ngroup beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to\nsuch tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not\nterminate or otherwise affect any of the other provisions of this Agreement.\nFor purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction\nentered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact\nthat the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such\nderivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of\nbeing or required to be settled by the payment of cash or through the delivery of such securities.\n9. Effect of Agreement.\nNo agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a\ndefinitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding\nupon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between\nthem with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally\nbinding as aforesaid, neither party nor any of their respective affiliates shall be under any\nNon-Disclosure Agreement\nPage 7\nobligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations\nwith respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties\nhereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement),\neach party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your\nRepresentatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its\nRepresentatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any\ntime without any obligation to notify the other party hereto of such disclosure or negotiations.\n10. Designated Contact Persons.\nEach party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All\ncommunications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions\nor questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives\nacting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s\nknowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person\ndirected by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any\npossible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in\nwriting by the Company.\n11. Non-Solicitation.\nYou agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this\nAgreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person\nacting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had\ncontact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your\nRepresentatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that\nare not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by\nthe Company.\n12. Securities Law Compliance.\nIt is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the\nCompany to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed\nas to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received\nfrom an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person\nis reasonably likely to purchase or sell such securities.\nNon-Disclosure Agreement\nPage 8\n13. Remedies.\nThe Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this\nAgreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that\ntherefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for\nany such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall\nnonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to\nyou and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive\nfrom the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any\nappeal therefrom.\n14. Existing Portfolio Investments.\nThe Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in\nsecurities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is\nengaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this\nAgreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot\nbe separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of\nyour obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including,\nwithout limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use\nof such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical\npurposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by\nyou and your controlled affiliates.\nNotwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation\nMaterial or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms\nof this Agreement shall apply to such entities.\n15. Other Terms.\n(a) Waivers and Amendments. No failure or delay by any party to this Agreement in exercising any right, power or privilege hereunder\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement may only be amended by the execution and delivery of a\nwritten agreement to which you and the Company are signatories.\nNon-Disclosure Agreement\nPage 9\n(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive\nlaws of the State of Delaware, without reference to the conflict of law principles of that state.\n(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of\nthe state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or\nproceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of\nany process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be\neffective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement\nhereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this\nAgreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court\nfor the District of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of\nTransaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants,\nundertakings and subject matter set forth in this Agreement.\n(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this\nAgreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of\ninterpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision\nhereof.\n(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the\ndate hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation\nMaterial is considered a trade secret under applicable law.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nshall become a binding agreement between you and Vocus.\nVery truly yours,\nVocus, Inc.\nBy: /s/ Stephen A. Vintz\nName: Stephen A. Vintz\nTitle: Executive Vice President/Chief Financial Officer\nAccepted and agreed as of the date first written above.\nGTCR LLC\nBy:\n/s/ Joseph Navea\nName: Joseph Navea\nTitle:\nDocumentation Coordinator	EX-99.(D)(6) 14 d701401dex99d6.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(6)\nDecember 20, 2013\nPRIVATE AND CONFIDENTIAL\nMr. Mark Anderson, Managing Director\nMr. Lawrence Fey, Principal\nMr. Stephen Master, Vice President\nGTCRLLC\n300 N. LaSalle St.\nSuite 5600\nChicago, IL. 60654\nRe: Non-Disclosure Agreement\nGentlemen:\nIn connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware\ncorporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make\ncertain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As\na condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in\nstrict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the\nother actions as hereinafter expressly set forth.\n \n \nAs used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective\ndirectors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal\ncounsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed)\nof the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term\n“affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as\namended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without\nlimitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.\n \n1. Evaluation Material.\nAs used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after\nthe date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and\nirrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your\nRepresentatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the\ninformation that the Company or the\nNon-Disclosure Agreement\nPage 2\nCompany’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has\nbecome generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was\nwithin your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not\nknown by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-\nconfidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and\nshould not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation\nof confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without\nreference to any confidential information disclosed by the Company.\n2. Evaluation Material and Confidentiality.\nYou and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a\nTransaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and,\nexcept as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the\nprior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to\nknow the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a\nTransaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement.\nYou shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all\ncommercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including\nin legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you\nnor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any\nbusiness or customer of the Company, or otherwise use any such information competitively against the Company.\n3. Transaction Information, Discussions and Confidentiality.\nExcept as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of\nyour Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made\navailable to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that\ndiscussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any\nof the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the\nCompany’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to\ncollectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the\nprior written consent\nNon-Disclosure Agreement\nPage 3\nof Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement,\nunderstanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a\nTransaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt\nfinancing source.\n4. Legally Compelled Disclosure.\nIf you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal\nproceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any\nTransaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement,\nrequest or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s\nsole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such\nRepresentative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or\nother remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the\nadvice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to\nany tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such\nRepresentative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative\ndetermine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such\nRepresentative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so\ndisclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such\ntribunal or other public or governmental authority.\n5. Termination of Discussions at Any Time Return of Evaluation Material.\nAt any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event\nno later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies,\nextracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on\nbehalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete\ncopy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you\nand to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization\nand within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted\naccess to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of\nEvaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing\ncompliance with any applicable\nNon-Disclosure Agreement\nPage 4\nlaws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this\nAgreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in\ncounsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by\nyou or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their\nconfidentiality obligations hereunder.\n6. Privileged Information.\nThe furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any\nattorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The\nparties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose,\nthey (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges\nand protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In\nfurtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege,\nattorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent\nagreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.\nThe Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form\nthereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its\nRepresentatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of\nany of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that\nneither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or\nresulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions\ntherefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not\nentitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or\nwarranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties\nhereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.\nNon-Disclosure Agreement Page 5\n8. Standstill. You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall: (a)\n(b)\n(©)\n(d)\n(e)\n()\nacquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or\nright thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or\nexchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the\nCompany;\nenter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any\nDerivative Securities (as defined below);\nmake or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the\nrules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in\nrespect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of\nauthority of or abstention from voting), any Voting Securities of the Company;\n \nunless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of\nindependent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates,\nRepresentatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent,\ninquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger,\nconsolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash\nor property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or\nbusinesses;\nform, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in\nconnection with any Voting Securities of the Company;\nact alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs\nof the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to\nhave called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the\nvoting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder\nproposals);\nNon-Disclosure Agreement\nPage 6\n(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in\nclause “(a)” or “(d)” of this sentence;\n(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver\nof, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public\ndisclosure of such request or proposal;\n(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written)\nwith, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any\nperson in connection with any of the foregoing; or\n(G) atno time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in\nrelation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your\ncontrolled affiliates) and the Company;\nprovided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it\nhas entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity\nsecurities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly\nannounces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or\ngroup beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to\nsuch tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not\nterminate or otherwise affect any of the other provisions of this Agreement.\nFor purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction\nentered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact\nthat the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such\nderivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of\nbeing or required to be settled by the payment of cash or through the delivery of such securities.\n9. Effect of Agreement.\nNo agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a\ndefinitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding\nupon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between\nthem with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally\nbinding as aforesaid, neither party nor any of their respective affiliates shall be under any\nNon-Disclosure Agreement\nPage 7\nobligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations\nwith respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties\nhereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement),\neach party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your\nRepresentatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its\nRepresentatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any\ntime without any obligation to notify the other party hereto of such disclosure or negotiations.\n10. Designated Contact Persons.\nEach party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All\ncommunications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions\nor questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives\nacting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s\nknowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person\ndirected by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any\npossible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in\nwriting by the Company.\n11. Non-Solicitation.\nYou agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this\nAgreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person\nacting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had\ncontact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your\nRepresentatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that\nare not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by\nthe Company.\n12. Securities Law Compliance.\nIt is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the\nCompany to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed\nas to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received\nfrom an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person\nis reasonably likely to purchase or sell such securities.\nNon-Disclosure Agreement\nPage 8\n13. Remedies.\nThe Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this\nAgreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that\ntherefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for\nany such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall\nnonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to\nyou and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive\nfrom the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any\nappeal therefrom.\n14. Existing Portfolio Investments.\nThe Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in\nsecurities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is\nengaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this\nAgreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot\nbe separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of\nyour obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including,\nwithout limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use\nof such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical\npurposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by\nyou and your controlled affiliates.\nNotwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation\nMaterial or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms\nof this Agreement shall apply to such entities.\n15. Other Terms.\n(a) Waivers and Amendments. No failure or delay by any party to this Agreement in exercising any right, power or privilege hereunder\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement may only be amended by the execution and delivery of a\nwritten agreement to which you and the Company are signatories.\nNon-Disclosure Agreement Page 9\n(b)\n(©)\n(d)\n(e)\n()\nGoverning Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive\nlaws of the State of Delaware, without reference to the conflict of law principles of that state.\nConsent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of\nthe state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or\nproceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of\nany process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be\neffective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement\nhereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this\nAgreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court\nfor the District of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\nEntire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of\nTransaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants,\nundertakings and subject matter set forth in this Agreement.\nConstruction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this\nAgreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of\ninterpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision\nhereof.\nTerm. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the\ndate hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation\nMaterial is considered a trade secret under applicable law.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus. Accepted and agreed as of the date first written above. GTCRLLC\nBy: /s/ Joseph Navea\nName: Joseph Navea\nTitle:\nDocumentation Coordinator\nVery truly yours,\nVocus, Inc.\nBy:  /s/ Stephen A. Vintz\nName: Stephen A. Vintz\nTitle: Executive Vice President/Chief Financial Officer	EX-99.(D)(6) 14 d701401dex99d6.htn NON-DISCLOSURE AGREEMENT\nExhibit (d)(6)\nDecember 20, 2013\nPRIVATE AND CONFIDENTIAL\nMr. Mark Anderson, Managing Director\nMr. Lawrence Fey, Principal\nMr. Stephen Master, Vice President\nGTCR LLC\n300 N. LaSalle St.\nSuite 5600\nChicago, IL 60654\nRe: Non-Disclosure Agreement\nGentlemen:\nIn connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware\ncorporation ("Vocus" and collectively with its subsidiaries, the "Company," "'we" or "our"), and you (a "Transaction"), we are prepared to make\ncertain\ninformation available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company.\nAs\na condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in\nstrict confidence in accordance with the provisions of this Non-Disclosure Agreement (this "Agreement"), and to take or refrain from taking the\nother actions as hereinafter expressly set forth.\nAs used in this Agreement, (i) the term "Representative" means, as to any person, such person's affiliates and its and their respective\ndirectors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal\ncounsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed)\nof the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term\n"affiliate"\nhas\nthe\nmeaning\ngiven\nto\nthat\nterm\nin\nRule\n12b-2\nof\nthe\nGeneral\nRules\nand\nRegulations\nunder\nthe\nSecurities\nExchange\nAct\nof\n1934,\nas\namended (the "Exchange Act"); and (iii) the term "person" shall be broadly interpreted to mean all natural and legal persons, including, without\nlimitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.\n1. Evaluation Material.\nAs used in this Agreement, the term "Evaluation Material" means all information concerning the Company (whether furnished on or after\nthe date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and\nirrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your\nRepresentatives by or on behalf of the Company. The term "Evaluation Material" also includes all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the\ninformation that the Company or the\nNon-Disclosure Agreement\nPage 2\nCompany's Representatives furnish to you or your Representatives. The term "Evaluation Material" does not include information that (a)\nhas\nbecome generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was\nwithin your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information\nwas\nnot\nknown by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-\nconfidential basis from a source other than the Company or any of the Company's Representatives if such source is not known by you (and\nshould not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation\nof confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without\nreference to any confidential information disclosed by the Company.\n2. Evaluation Material and Confidentiality..\nYou and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a\nTransaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and,\nexcept as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the\nprior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need\nto\nknow the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a\nTransaction,\nand who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement.\nYou shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all\ncommercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including\nin legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you\nnor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any\nbusiness or customer of the Company, or otherwise use any such information competitively against the Company.\n3. Transaction Information, Discussions and Confidentiality.\nExcept as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of\nyour Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made\navailable to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that\ndiscussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or\nany\nof the Company's Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the\nCompany's Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to\ncollectively as "Transaction Information"). Without limiting the generality of the foregoing and for purposes of clarification, except with the\nprior written consent\nNon-Disclosure Agreement\nPage 3\nof Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement,\nunderstanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you\nin\na\nTransaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt\nfinancing source.\n4. Legally Compelled Disclosure.\nIf you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal\nproceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any\nTransaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement,\nrequest or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company's\nsole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such\nRepresentative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or\nother remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the\nadvice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to\nany tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such\nRepresentative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative\ndetermine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such\nRepresentative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information\nso\ndisclosed, including, without limitation, by cooperating with the Company to obtain, at the Company's sole expense, an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such\ntribunal or other public or governmental authority.\n5. Termination of Discussions at Any Time Return of Evaluation Material.\nAt any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event\nno\nlater than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies,\nextracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on\nbehalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete\ncopy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you\nand to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization\nand within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted\naccess\nto such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of\nEvaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing\ncompliance with any applicable\nNon-Disclosure Agreement\nPage 4\nlaws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this\nAgreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only\nin\ncounsel's record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by\nyou or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their\nconfidentiality obligations hereunder.\n6. Privileged Information.\nThe furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any\nattorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The\nparties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose,\nthey (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges\nand protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In\nfurtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege,\nattorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent\nagreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.\n7. No Representation or Warranty as to Accuracy. and Completeness of Evaluation Material.\nThe Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form\nthereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its\nRepresentatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of\nany of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge\nand\nagree\nthat\nneither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or\nresulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions\ntherefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not\nentitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations\nor\nwarranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties\nhereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.\nNon-Disclosure Agreement\nPage 5\n8. Standstill.\nYou agree that for a period of eighteen (18) months from and after the date hereof (the "Standstill Period"), neither you nor any of your\naffiliates, directly or indirectly, shall:\n(a)\nacquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or\nright thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or\nexchange ("Voting Securities"), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the\nCompany;\n(b)\nenter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any\nDerivative Securities (as defined below);\n(c)\nmake or in any way participate, directly or indirectly, in any "solicitation" of "proxies" or "consents" (as such terms are used in the\nrules and published interpretations of the U.S. Securities and Exchange Commission ("SEC")) to vote (or to withhold authority in\nrespect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of\nauthority of or abstention from voting), any Voting Securities of the Company;\n(d)\nunless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of\nindependent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates,\nRepresentatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent,\ninquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger,\nconsolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash\nor\nproperty distribution or any other extraordinary transaction involving the Company or any of the Company's securities, assets or\nbusinesses;\n(e)\nform, join or in any way engage or participate in a "group," (within the meaning of Section 13(d)(3) of the Exchange Act) in\nconnection with any Voting Securities of the Company;\n(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs\nof the Company (including, without limitation, by seeking to place any individual on the Company's board of directors, seeking to\nhave called any meeting of the Company's stockholders or seeking to advise, encourage or influence any person with respect to the\nvoting of any securities of the Company for the election of individuals to the Company's board of directors or to approve stockholder\nproposals);\nNon-Disclosure Agreement\nPage 6\n(g)\ntake any action that might require the Company to make a public announcement regarding any of the types of matters set forth in\nclause "(a)" or "(d)" of this sentence;\n(h)\nrequest or propose that the Company or any of the Company's Representatives amend or waive, or consider the amendment or waiver\nof, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public\ndisclosure of such request or proposal;\n(i)\nhave any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written)\nwith, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any\nperson in connection with any of the foregoing; or\n(j)\nat no time offer or communicate directly to the Company's shareholders in the form of a tender offer, exchange offer or otherwise in\nrelation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your\ncontrolled affiliates) and the Company;\nprovided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it\nhas entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity\nsecurities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly\nannounces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or\ngroup beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to\nsuch tender or exchange offer that recommends that Vocus' stockholders accept such offer. The expiration of the Standstill Period will not\nterminate or otherwise affect any of the other provisions of this Agreement.\nFor purposes of this Section 8, "Derivative Securities" means any securities that are the subject of any derivative or other transaction\nentered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact\nthat the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such\nderivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of\nbeing or required to be settled by the payment of cash or through the delivery of such securities.\n9. Effect of Agreement.\nNo agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a\ndefinitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding\nupon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between\nthem with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally\nbinding as aforesaid, neither party nor any of their respective affiliates shall be under any\nNon-Disclosure Agreement\nPage 7\nobligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations\nwith respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties\nhereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of\nthis\nAgreement),\neach party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your\nRepresentatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its\nRepresentatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any\ntime without any obligation to notify the other party hereto of such disclosure or negotiations.\n10. Designated Contact Persons.\nEach party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All\ncommunications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions\nor questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives\nacting on such party's behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person's\nknowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person\ndirected by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any\npossible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in\nwriting by the Company.\n11. Non-Solicitation.\nYou agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this\nAgreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person\nacting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with\nwhom\nyou\nhad\ncontact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your\nRepresentatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that\nare not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by\nthe Company.\n12. Securities Law Compliance.\nIt is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the\nCompany to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed\nas to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received\nfrom an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person\nis reasonably likely to purchase or sell such securities.\nNon-Disclosure Agreement\nPage 8\n13. Remedies.\nThe Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this\nAgreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that\ntherefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for\nany such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall\nnonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available\nto\nyou and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive\nfrom\nthe\nother party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including\nany\nappeal therefrom.\n14. Existing Portfolio Investments.\nThe Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in\nsecurities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is\nengaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this\nAgreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot\nbe separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of\nyour obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including,\nwithout limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use\nof such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical\npurposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by\nyou and your controlled affiliates.\nNotwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation\nMaterial or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms\nof this Agreement shall apply to such entities.\n15. Other Terms.\n(a)\nWaivers and Amendments. No failure or delay by any party to this Agreement in exercising any right, power or privilege hereunder\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement may only be amended by the execution and delivery of a\nwritten agreement to which you and the Company are signatories.\nNon-Disclosure Agreement\nPage 9\n(b)\nGoverning Law This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive\nlaws of the State of Delaware, without reference to the conflict of law principles of that state.\n(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of\nthe state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or\nproceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service\nof\nany process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be\neffective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement\nhereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this\nAgreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court\nfor the District of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of\nTransaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants,\nundertakings and subject matter set forth in this Agreement.\n(e)\nConstruction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this\nAgreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of\ninterpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision\nhereof.\n(f)\nTerm. This Agreement, and the parties' respective rights and obligations hereunder, shall terminate on the second anniversary of the\ndate hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation\nMaterial is considered a trade secret under applicable law.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nshall become a binding agreement between you and Vocus.\nVery truly yours,\nVocus, Inc.\nBy:\n/s/ Stephen A. Vintz\nName: Stephen A. Vintz\nTitle: Executive Vice President/Chief Financial Officer\nAccepted and agreed as of the date first written above.\nGTCR LLC\nBy:\n/s/ Joseph Navea\nName:\nJoseph Navea\nTitle:\nDocumentation Coordinator	EX-99.(D)(6) 14 d701401dex99d6.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(6)\nDecember 20, 2013\nPRIVATE AND CONFIDENTIAL\nMr. Mark Anderson, Managing Director\nMr. Lawrence Fey, Principal\nMr. Stephen Master, Vice President\nGTCR LLC\n300 N. LaSalle St.\nSuite 5600\nChicago, IL 60654\nRe: Non-Disclosure Agreement\nGentlemen:\nIn connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware\ncorporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make\ncertain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As\na condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in\nstrict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the\nother actions as hereinafter expressly set forth.\nAs used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective\ndirectors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal\ncounsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed)\nof the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term\n“affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as\namended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without\nlimitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.\n1. Evaluation Material.\nAs used in this Agreement, the term “ Evaluation Material” means all information concerning the Company (whether furnished on or after\nthe date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and\nirrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your\nRepresentatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the\ninformation that the Company or the\nNon-Disclosure Agreement\nPage 2\nCompany’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has\nbecome generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was\nwithin your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not\nknown by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-\nconfidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and\nshould not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation\nof confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without\nreference to any confidential information disclosed by the Company.\n2. Evaluation Material and Confidentiality.\nYou and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a\nTransaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and,\nexcept as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the\nprior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to\nknow the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a\nTransaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement.\nYou shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all\ncommercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including\nin legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you\nnor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any\nbusiness or customer of the Company, or otherwise use any such information competitively against the Company.\n3. Transaction Information, Discussions and Confidentiality.\nExcept as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of\nyour Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made\navailable to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that\ndiscussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any\nof the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the\nCompany’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to\ncollectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the\nprior written consent\nNon-Disclosure Agreement\nPage 3\nof Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement,\nunderstanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a\nTransaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt\nfinancing source.\n4. Legally Compelled Disclosure.\nIf you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal\nproceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any\nTransaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement,\nrequest or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s\nsole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such\nRepresentative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or\nother remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the\nadvice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to\nany tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such\nRepresentative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative\ndetermine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such\nRepresentative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so\ndisclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such\ntribunal or other public or governmental authority.\n5. Termination of Discussions at Any Time Return of Evaluation Material.\nAt any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event\nno later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies,\nextracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on\nbehalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete\ncopy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you\nand to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization\nand within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted\naccess to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of\nEvaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing\ncompliance with any applicable\nNon-Disclosure Agreement\nPage 4\nlaws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this\nAgreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in\ncounsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by\nyou or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their\nconfidentiality obligations hereunder.\n6. Privileged Information.\nThe furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any\nattorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The\nparties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose,\nthey (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges\nand protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In\nfurtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege,\nattorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent\nagreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.\n7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.\nThe Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form\nthereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its\nRepresentatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of\nany of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that\nneither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or\nresulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions\ntherefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not\nentitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or\nwarranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties\nhereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.\nNon-Disclosure Agreement\nPage 5\n8. Standstill.\nYou agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your\naffiliates, directly or indirectly, shall:\n(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or\nright thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or\nexchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the\nCompany;\n(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any\nDerivative Securities (as defined below);\n(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the\nrules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in\nrespect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of\nauthority of or abstention from voting), any Voting Securities of the Company;\n(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of\nindependent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates,\nRepresentatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent,\ninquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger,\nconsolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash\nor property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or\nbusinesses;\n(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in\nconnection with any Voting Securities of the Company;\n(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs\nof the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to\nhave called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the\nvoting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder\nproposals);\nNon-Disclosure Agreement\nPage 6\n(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in\nclause “(a)” or “(d)” of this sentence;\n(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver\nof, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public\ndisclosure of such request or proposal;\n(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written)\nwith, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any\nperson in connection with any of the foregoing; or\n(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in\nrelation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your\ncontrolled affiliates) and the Company;\nprovided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it\nhas entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity\nsecurities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly\nannounces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or\ngroup beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to\nsuch tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not\nterminate or otherwise affect any of the other provisions of this Agreement.\nFor purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction\nentered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact\nthat the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such\nderivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of\nbeing or required to be settled by the payment of cash or through the delivery of such securities.\n9. Effect of Agreement.\nNo agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a\ndefinitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding\nupon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between\nthem with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally\nbinding as aforesaid, neither party nor any of their respective affiliates shall be under any\nNon-Disclosure Agreement\nPage 7\nobligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations\nwith respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties\nhereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement),\neach party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your\nRepresentatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its\nRepresentatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any\ntime without any obligation to notify the other party hereto of such disclosure or negotiations.\n10. Designated Contact Persons.\nEach party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All\ncommunications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions\nor questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives\nacting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s\nknowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person\ndirected by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any\npossible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in\nwriting by the Company.\n11. Non-Solicitation.\nYou agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this\nAgreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person\nacting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had\ncontact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your\nRepresentatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that\nare not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by\nthe Company.\n12. Securities Law Compliance.\nIt is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the\nCompany to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed\nas to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received\nfrom an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person\nis reasonably likely to purchase or sell such securities.\nNon-Disclosure Agreement\nPage 8\n13. Remedies.\nThe Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this\nAgreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that\ntherefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for\nany such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall\nnonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to\nyou and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive\nfrom the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any\nappeal therefrom.\n14. Existing Portfolio Investments.\nThe Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in\nsecurities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is\nengaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this\nAgreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot\nbe separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of\nyour obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including,\nwithout limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use\nof such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical\npurposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by\nyou and your controlled affiliates.\nNotwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation\nMaterial or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms\nof this Agreement shall apply to such entities.\n15. Other Terms.\n(a) Waivers and Amendments. No failure or delay by any party to this Agreement in exercising any right, power or privilege hereunder\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement may only be amended by the execution and delivery of a\nwritten agreement to which you and the Company are signatories.\nNon-Disclosure Agreement\nPage 9\n(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive\nlaws of the State of Delaware, without reference to the conflict of law principles of that state.\n(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of\nthe state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or\nproceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of\nany process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be\neffective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement\nhereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this\nAgreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court\nfor the District of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of\nTransaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants,\nundertakings and subject matter set forth in this Agreement.\n(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this\nAgreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of\ninterpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision\nhereof.\n(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the\ndate hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation\nMaterial is considered a trade secret under applicable law.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nshall become a binding agreement between you and Vocus.\nVery truly yours,\nVocus, Inc.\nBy: /s/ Stephen A. Vintz\nName: Stephen A. Vintz\nTitle: Executive Vice President/Chief Financial Officer\nAccepted and agreed as of the date first written above.\nGTCR LLC\nBy:\n/s/ Joseph Navea\nName: Joseph Navea\nTitle:\nDocumentation Coordinator
1c1705ebb86fb8c9ddd2c765d1d59486.pdf	effective_date jurisdiction party	EX-10 .1 2 a14-24845 _1ex10d1.htm EX-10.1\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF CLAIMS\nThis Agreement is a contract between John Michael Magouirk (“you”) and Colt’s Manufacturing Company LLC (“Colt”) relating to your separation from Colt, effective November 14, 2014 (the “Separation Date”). You\nshould thoroughly review and understand the Agreement before signing it, and you are advised to consult with counsel before signing this Agreement.\nA.\nBENEFITS FOR SIGNING THIS AGREEMENT: In exchange for your execution of this Agreement and subject to the terms and conditions of this Agreement, Colt agrees to provide you with the\nfollowing benefits in connection with your separation (collectively, the “Separation Benefits”):\n1.\nContinuation of your salary (not including any bonus or incentive compensation) as of the Separation Date for fifty-two weeks (“Separation Pay”) at a weekly rate of $7,210 for a total amount of $374,920\nless appropriate taxes and withholdings. Payment of the Separation Pay in the form of salary continuation shall commence, in accordance with Colt regular payroll practices, following the Effective Date of this Agreement, as set forth in\nSection J below.\n2.\nIf applicable, continuation of your participation in Colt group health plans through December 31, 2014, on the same terms and conditions as existed immediately prior to the Separation Date, including\nyour responsibility to pay the employee portion of the coverage. If applicable, after December 31, 2014, you may be eligible to continue health benefits under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) at your\nsole expense.\nB.\nRELEASE AND WAIVER:\n1.\nIn exchange for the payments and other consideration described above, you agree to release Colt and any and all of its parents, subsidiaries, affiliates, predecessors, successors and assigns (herein referred\nto collectively as “Colt and Affiliates”), from any and all claims, demands, actions, or liabilities you may have against them, or any one of them, of whatever kind, including but not limited to those which are related in any way to your\nemployment by Colt and Affiliates or the termination of that employment. You also agree to release from all claims, demand, actions, or liabilities the past, present, and future principals, agents, directors, officers, employees, fiduciaries,\nrepresentatives, successors and assigns of Colt and Affiliates (hereinafter, “Associated Persons”). You agree that you have executed this Agreement on your own behalf, and also on behalf of any heirs, agents, representatives, successors\nand assigns that you may have now or in the future.\n2.\nYou agree that this Release and Waiver covers, but is not limited to, claims arising under Title VII of the Civil Rights Act of 1964, as amended, the Employee Retirement Income Security Act of 1974, as\namended (also known as “ERISA”), the Age Discrimination in Employment Act as amended by the Older Workers Benefit Protection Act (“OWBPA”), the Americans with Disabilities Act of 1990, the Connecticut Fair Employment\nPractices Act, and any other federal, state or local law dealing with discrimination on any basis, including sex, race, national origin, veteran status, marital status, religion, disability, sexual orientation, reservist status or age. You also agree\nthat, except to the extent otherwise provided by law, this Release and Waiver includes claims based on any statute or on any contract or tort theories, whether based on common law or otherwise. This Release and Waiver does not apply to\nclaims arising\nunder any workers’ compensation statute, except it does apply to claims for wrongful discharge or other discrimination in employment for exercising rights under such statute.\n3.\nIf any claim is not subject to release, to the extent permitted by law, you waive any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified\nclass, collective or multi-party action or proceeding based on such a claim in which Colt and Affiliates or Associated Persons are parties. You promise not to consent to become a member of any class or collective in which claims are\nasserted against Colt and Affiliates or Associated Persons that are related in any way to your employment or the termination of your employment with Colt. If, without your prior knowledge and consent, you are made a member of a class\nin any such proceeding, you agree to opt out of the class at the first opportunity.\n4.\nThis Release and Waiver applies to all complaints, claims or demands based on any facts or events, whether known or unknown by you, that occurred on or before the date you sign this Agreement.\nC.\nELIGIBILITY REQUIREMENTS/APPLICABLE DATA: In order to eliminate certain redundancies and duplication of services following Colt’s acquisition of Colt Manufacturing Company LLC,\nColt has elected to implement the Human Resources 2014 Restructuring Program (the “Program”). This program has been developed to establish a streamlined, reorganization of the Human Resources function which will realign\nfunctional and task responsibilities in order to improve its ability to consistently and effectively deliver best practice performance. In addition, this and other reorganizations will support the new company leadership team and in support of\nthe 8Q Plan and enhanced stockholder value.\nIndividual(s) who are eligible to participate in the Program have been or will be selected for termination from their employment based on Colt’s business needs and consideration of one or more of the following eligibility\ncriteria:\n1.\nthe duplication and/or redundancy of the functions the individuals performs when compared with the functions performed by other individuals;\n2.\nthe individual’s disciplinary history compared to other individuals performing the same or similar job functions;\n3.\nthe flexibility of the individual’s skills, including the individual’s ability to perform multiple or varied functions according to business need, compared to the flexibility of the skills of individuals in the same or\nsimilar job classification;\n4.\nthe individual’s performance and competency performing job-related tasks as compared to the performance and competency of other employees in the same job classification and business unit in performing\njob-related tasks\n5.\nthe individual’s ability to assume, and perform competently, additional responsibilities following implementation of the Program.\nAttached as Exhibit “A” is a list of the job title and ages of all individuals who have been selected for the Program as of their last date of employment with Colt. Attached as Exhibit “B” is a list of the job titles and ages of all individuals\nin the same decisional unit as you who have not been selected for the Program as of the date you receive this Agreement.\nD.\nNO FUTURE LAWSUITS: You promise never to file a lawsuit against Colt and Affiliates or Associated Persons, including but not limited to claims arising from or related to your employment with\nColt or the termination of that employment. Except as set forth in the preceding sentence, you further promise never to assist voluntarily any other person or entity filing a lawsuit or contemplating filing a lawsuit that asserts any claim or\ndemand against Colt\n2\nand Affiliates or Associated Persons. Colt and you acknowledge that this Agreement does not limit either party’s right, where applicable, to file or to participate in an investigative proceeding of any federal, state or local governmental\nagency. To the extent permitted by law, if a claim is brought in any forum by you or on your behalf against Colt and Affiliates or Associated Persons, you hereby agree that you waive any right to recover damages or any other relief in\nsuch proceeding.\nE.\nPROTECTION OF CONFIDENTIAL AND PROPRIETARY INFORMATION, SURRENDER OF MATERIALS: (1) You acknowledge that you have signed and are bound by the Employee\nInvention and Confidential Information Agreement (“Confidentiality Agreement”). As a material condition of your eligibility for the Separation Benefits, you expressly reaffirm your obligation to abide by the Confidentiality Agreement\nand agree that you will do so. You further understand and agree that a violation or other failure to abide by the Confidentiality Agreement will result in forfeiture of the Separation Benefits described in Section A above and/or an\nobligation promptly to reimburse Colt for the cost of any Separation Benefits, including Separation Pay, that have already been paid or provided to you. (2) You affirm that you have returned to Colt all company property, including but\nnot limited to vehicle, door, file and other keys; laptops or other computers; computer software or hardware; telephones; PDAs, electronic devices, or other such devices; credit cards; equipment; and records, files or other documents,\nincluding electronically created or stored documents. You agree that you have not and will not retain any copies or excerpts of the materials described above, and that you will not attempt to retrieve or recreate any of the materials\ndescribed above after the Separation Date.\nF.\nAFFIRMATIONS: You affirm that you have been paid and/or have received all compensation, wages, bonuses, commission, vacation time and other benefits to which you may be entitled. You further\naffirm that you are not eligible for any additional severance or other pay other than as expressly set forth in this Agreement.\nYou affirm that you are not aware of any compliance issues relating to Colt and Affiliates or Associated Persons. If you are aware of any such issues, you affirm that such issues have been reported to Colt in accordance\nwith Colt policies.\nG.\nCONFIDENTIALITY OF AGREEMENT: You agree to keep confidential the terms of this Agreement and will not disclose them to any person or entity, except as required by law and except that you\nmay disclose the terms of this Agreement to immediate family member(s) and to your legal or financial counselors or advisors, so long as you first inform any such individuals of this Confidentiality provision and so long as they agree to\ncomply with this Confidentiality provision.\nH.\nNON-DISPARAGEMENT: You agree that neither you nor anyone acting on your behalf will initiate or engage in any communication whatsoever with any person, which could reasonably be interpreted\nas derogatory or disparaging to or about Colt and Affiliates or Associated Persons.\nI.\nGOVERNING LAW: This Agreement shall be governed by and construed under the laws of the State of Connecticut.\nJ.\nTIME TO CONSIDER AGREEMENT: You acknowledge and agree that you have been given an adequate and reasonable period of time to consider this Agreement. Specifically, you have at least\nforty-five (45) days from the date you received this Agreement within which to consider and sign it. If you do sign the Agreement, you then have a seven (7) day period thereafter within which you may revoke it (“Revocation Period”), if\nyou so choose.\n3\nRevocation of this Agreement would render all of its provisions, including but not limited to Paragraphs A and B above null and void, and you will not receive any separation payment. If you do choose to revoke this Agreement, you must\nprovide written notice of revocation, within the seven (7) day period after signing this Agreement, to John Coghlin, Senior Vice President and General Counsel, Colt’s Manufacturing Company LLC, by fax, e-mail or mail. This\nAgreement shall become effective after the expiration of the seven (7) day Revocation Period with no revocation (“Effective Date”).\nK\nENTIRE AGREEMENT: You have not relied on any representations, promises, or agreements of any kind made to you in connection with your decision to sign this Agreement. This Agreement and\nthe Confidentiality Agreement as described above set forth the entire agreement between you and Colt and render null and void any and all prior or contemporaneous oral or written understandings, statements, representations or promises,\nexcept as otherwise expressly stated above. No changes to this Agreement shall be made, except in writing and signed by both parties.\nYOU ARE HEREBY ADVISED THAT YOU HAVE UP TO FORTY-FIVE (45) CALENDAR DAYS TO CONSIDER THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL\nRELEASE OF CLAIMS. YOU ARE ALSO ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nYOU AGREE THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE , MADE TO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS,\nDO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL FORTY-FIVE (45) CALENDAR DAY CONSIDERATION PERIOD.\nYOU FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION , ENTER INTO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF\nCLAIMS INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS YOU HAVE OR MIGHT HAVE AGAINST COLT DEFENSE AND AFFILIATES OR ASSOCIATED PERSONS AS OF THE DATE YOU\nSIGN THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nYou have read, understand and voluntarily execute this Agreement and assent to its terms, affirming that your decision to sign this Agreement has been made freely and without any duress or coercion. Please return the signed Agreement\nto John Coghlin, Senior Vice President and General Counsel at Colt’s Manufacturing Company LLC.\nDated:\nNovember 4, 2014\nfor\n/s/ Dennis Veilleux\nColt’s Manufacturing Company LLC\nBy: Dennis Veilleux, President and Chief Executive Officer\nDated:\nNovember 4, 2014\n/s/ John Michael Magouirk\nJohn Michael Magouirk\n4\nEXHIBIT A\nINDIVIDUALS SELECTED FOR THE\nCOLT’S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\n(Vice President Sales Grade 19)\nJob Title\nIndividual’s Age on His/Her Separation Date\nSr. Vice President/COO\n52.4 years\n5\nEXHIBIT B\nINDIVIDUALS NOT SELECTED FOR THE\nCOLT’S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\nIN THE SAME DECISIONAL UNIT AS YOU\nDECISIONAL UNIT: Sr. Vice President/COO Grade\nJob Title\nIndividual’s Age on Your Separation Date\nUnique Job Grade and responsibility- No\nother individuals\n6	EX-10.l 2 al4-24845_leXlOdl.htm EX-10.l\nExhibithJ\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF CLAIMS\nThis Agreement is a contract betweenjohn Michael Magouirk (”you”) and Colt's Manufacturing Company LLC ("Colt") relating to your separation from Colt, effective November 14, 2014 (the "Separation Date"). Y ou\nshould thoroughly review and understand the Agreement before signing it, and you are advised to consult with counsel before signing this Agreement.\nA. BENEFITS FOR SIG NING THIS AG REEMENT: In exchange for your execution of this Agreement and subject to the terms and conditions of this Agreement, Colt agrees to provide you with the\nfollowing benefits in connection with your separation (collectively, the "Separation Benefits"):\n1. Continuation of your salary (not including any bonus or incentive compensation) as of the Separation Date for fifty-two weeks ("Separation Pay") at a weekly rate of $7,210 for a total amount of $374,920\nless appropriate taxes and withholdings. Payment of the Separation Pay in the form of salary continuation shall commence, in accordance with Colt regular payroll practices, following the Effective Date of this Agreement, as set forth in\nSection] below.\n2. If applicable, continuation of your participation in Colt group health plans through December 31, 2014, on the same terms and conditions as existed immediately prior to the Separation Date, including\nyour responsibility to pay the employee portion of the coverage. If applicable, after December 31, 2014, you may be eligible to continue health benefits under the Consolidated Omnibus Budget Reconciliation Act ("COBRA "J at your\nsole expense.\nB. RELEASE AND WAIVER:\n1. In exchange for the payments and other consideration described above, you agree to release Colt and any and all of its parents, subsidiaries, affiliates, predecessors, successors and assigns (herein referred\nto collectively as "Colt and Affiliates"), from any and all claims, demands, actions, or liabilities you may have against them, or any one of them, of whatever kind, including but not limited to those which are related in any way to your\nemployment by Colt and Affiliates or the termination of that employment. Y on also agree to release from all claims, demand, actions, or liabilities the past, present, and future principals, agents, directors, officers, employees, fiduciaries,\nrepresentatives, successors and assigns of Colt and Affiliates (hereinafter, "A ssociated Persons”). Y ou agree that you have executed this Agreement on your own behalf, and also on behalf of any heirs, agents, representatives, successors\nand assigns that you may have now or in the future.\n2. Y ou agree that this Release and Waiver covers, but is not limited to, claims arising under Title VII of the Civil Rights Act of 1964, as amended, the Employee Retirement Income Security Act of 1974, as\namended (also known as "ERISA ”l, the Age Discrimination in Employment Act as amended by the Older Workers Benefit Protection Act ("OWBPA"), the Americans with Disabilities Act of 1990, the Connecticut Fair Employment\nPractices Act, and any other federal, state or local law dealing with discrimination on any basis, including sex, race, national origin, veteran smtus, marital status, religion, disability, sexual orientation, reservist status or age. Y ou also agree\nthat, except to the extent otherwise provided by law, this Release and Waiver includes claims based on any smtute or on any contract or tort theories, whether based on common law or otherwise This Release and Waiver does not apply to\nclaims arising\nunder any workers' compensation statute, except it does apply to claims for wrongful discharge or other discrimination in employment for exercising rights under such smtute.\n3. If any claim is not subject to release, to the extent permitted by law, you waive any right or ability to be a class or collective action representative orto otherwise participate in any putative or certified\nclass, collective or multi-party action or proceeding based on such a claim in which Colt and Affiliates orAssociated Persons are parties. Y ou promise not to consent to become a member of any class or collective in which claims are\nasserted against Colt and Affiliates orAssociated Persons that are related in any way to your employment or the termination of your employment with Colt. If, without your prior knowledge and consent, you are made a member of a class\nin any such proceeding, you agree to opt out of the class at the first opportunity.\n4. This Release and Waiver applies to all complaints, claims or demands based on any facts or events, whether known or unknown by you, that occurred on or before the date you sign this Agreement.\nC. ELIGIBILITY REQUIREMENTS/APPL [CABLE DATA: In orderto eliminate certain redundancies and duplication of services following Colt's acquisition of Colt Manufacturing Company LLC,\nColt has elected to implement the Human Resources 2014 Restructuring Program (the ”Program"). This program has been developed to establish a streamlined, reorganization of the Human Resources function which will realign\nfunctional and task responsibilities in order to improve its ability to consistently and effectively deliver best practice performance. In addition, this and other reorganizations will support the new company leadership team and in support of\nthe SQ Plan and enhanced stockholder value.\nIndividual(s} who are eligible to participate in the Program have been or will be selected for termination from their employment based on Colt' s business needs and consideration of one or more of the following eligibility\ncriteria:\n1. the duplication and/or redundancy of the functions the individuals performs when compared with the functions performed by other individuals,-\n2. the individual’s disciplinary history compared to other individuals performing the same or similar job functions;\n3. the flexibility of the individual's skills, including the individual's ability to perform multiple or varied functions according to business need, compared to the flexibility of the skills of individuals in the same or\nsimilar j ob classification;\n4. the individual’s performance and competency performing job-related tasks as compared to the performance and competency of other employees in the same job classification and business unit in performing\njob— related tasks\n5. the individual’s ability to assume, and perform competently, additional responsibilities following implemenmtion of the Program.\nAttached as Exhibit "A ” is a list of the job title and ages of all individuals who have been selected for the Program as of their last date of employment with Colt. Attached as Exhibit "B" is a list of the job titles and ages of all individuals\nin the same decisional unit as you who have not been selected for the Program as of the date you receive this Agreement.\nD. NO FUTURE LAW SUIT S: Y ou promise never to file a lawsuit against Colt and Affiliates orAssociated Persons, including but not limited to claims arising from or related to your employment with\nColt or the termination of that employment. Except as set forth in the preceding sentence, you further promise never to assist volunmrily any other person or entity filing a lawsuit or contemplating filing a lawsuit that asserts any claim or\ndemand against Colt\nand Affiliates orAssociated Persons. Colt and you acknowledge that this Agreement does not limit either party's right, where applicable, to file or to participate in an investigative proceeding of any federal, smte or local governmenml\nagency. To the extent permitted by law, if a claim is brought in any forum by you or on your behalf against Colt and Affiliates orAssociated Persons, you hereby agree that you waive any right to recover damages or any other relief in\nsuch proceeding.\nE. PROTECTION OF CONFIDENTIAL AND PROPRIETARY INFORMATION, SURRENDER OF MATERIALS: [1) Y ou acknowledge that you have signed and are bound by the Employee\nInvention and Confidential Information Agreement ("Confidentiality Agreement"). As a material condition of your eligibility for the Separation Benefits, you expressly reaffirm your obligation to abide by the Confidentiality Agreement\nand agree that you will do so. Y ou further understand and agree that a violation or other failure to abide by the Confidentiality Agreement will result in forfeiture of the Separation Benefits described in Section A above and/or an\nobligation promptly to reimburse Colt for the cost of any Separation Benefits, including Separation Pay, that have already been paid or provided to you. (2) Y ou affirm that you have returned to Colt all company property, including but\nnot limited to vehicle, door, file and other keys; laptops or other computers; computer software or hardware; telephones; PDAs, electronic devices, or other such devices; credit cards; equipment; and records, files or other documents,\nincluding electronically created or stored documents. Y ou agree that you have not and will not retain any copies or excerpts of the materials described above, and that you will not attempt to retrieve or recreate any of the materials\ndescribed above after the Separation Date.\nF. AFFIRMATIONS: Y ou affirm that you have been paid and/or have received all compensation, wages, bonuses, commission, vacation time and other benefits to which you may be entitled. Y ou further\naffirm that you are not eligible for any additional severance or other pay other than as expressly set forth in this Agreement.\nY ou affirm that you are not aware of any compliance issues relating to Colt and Affiliates orAssociated Persons. If you are aware of any such issues, you affirm that such issues have been reported to Colt in accordance\nwith Colt policies.\nG. CONFIDENTIALITY OF AGREEMENT: Y ou agree to keep confidential the terms of this Agreement and will not disclose them to any person or entity, except as required by law and except that you\nmay disclose the terms of this Agreement to immediate family memberts) and to your legal or financial counselors or advisors, so long as you first inform any such individuals of this Confidentiality provision and so long as they agree to\ncomply with this Confidentiality provision.\nH. N0 N-DISPA RAG EM ENT: Y ou agree that neither you nor anyone acting on your behalf will initiate or engage in any communication whatsoever with any person, which could reasonably be interpreted\nas derogatory or disparaging to or about Colt and Affiliates or Associated Persons.\n1. GOVERNING LAW: This Agreement shall be governed by and construed under the laws of the State of Connecticut\nJ. TIME TO CONSIDER AG REEMENT: Y ou acknowledge and agree that you have been given an adequate and reasonable period of time to consider this Agreement. Specifically, you have at least\nforty-five (45) days from the date you received this Agreement within which to consider and sign it. If you do sign the Agreement, you then have a seven (7) day period thereafter within which you may revoke it (”Revocation Period"), if\nyou so choose.\nRevocation of this Agreement would render all of its provisions, including but not limited to Paragraphs A and B above null and void, and you will not receive any separation payment. If you do choose to revoke this Agreement, you must\nprovide written notice of revocation, within the seven (7) day period after signing this Agreement, to John Coghlin, SeniorVice President and General Counsel, Colt' s Manufacturing Company LLC, by fax, e-mail or mail. This\nAgreement shall become effective after the expiration of the seven (7) day Revocation Period with no revocation ("Effective Date").\nK ENTIRE AG REEMENT: Y ou have not relied on any representations, promises, or agreements of any kind made to you in connection with your decision to sign this Agreement This Agreement and\nthe Confidentiality Agreement as described above set forth the entire agreement between you and Colt and render null and void any and all prior or contemporaneous oral or written understandings, smtements, representations or promises,\nexcept as otherwise expressly stated above. No changes to this Agreement shall be made, except in writing and signed by both parties.\nYOU ARE HEREBY ADVISED THAT YOU HAVE UP TO FORTY-FIVE (45) CALENDAR DAYS TO CONSIDER THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL\nRELEASE OF CLAIMS. YOU ARE ALSO ADVISED T0 CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nYOU AGREE THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS,\nDO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL FORTY-FIVE (45) CALENDAR DAY CONSIDERATION PERIOD.\nYOU FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF\nCLAIMS INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS YOU HAVE OR MIGHT HAVE AGAINST COLT DEFENSE AND AFFILIATES OR ASSOCIATED PERSONS AS OF THE DATE YOU\nSIGN THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nY ou have read, understand and voluntarily execute this Agreement and assent to its terms, affirming that your decision to sign this Agreement has been made freely and without any duress or coercion Please return the signed Agreement\nto John Coghlin, Senior Vice President and General Counsel at Colt's Manufacturing Company LLC.\nDated: November 4, 2014 for /s/ Dennis Veilleux\nColt's Manufacturing Company LLC\nBy: Dennis Veilleux, President and Chief Executive Officer\nD ated: November 4, 2014 /s/ John Michael M agouirk\nJohn Michfian—\nEXHIBIT A\nINDIVIDUALS SELECTED FOR THE\nCOLT’S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\n(Vice President Sales Grade 19)\nJob Title Individual’s A ge on His/Her Separation Date\nSn Vice PresidenUCOO 524 years\nEXHIBIT B\nINDIVIDUALS NOT SELECTED FOR THE\nCOLT’S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\nIN THE SAME DECISIONAL UNIT AS YOU\nDECISIONAL UNIT: Sr. Vice President/COO Grade\nJob Title lm‘lividual’s A ge on v our Separation Dane\nUniqueJob Grade and responsibility No\nother individuals	EX-10.1 12a14-24845 lex10d1.htm EX-10.1\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF CLAIMS\nThis Agreement is a contract between John Michael Magouirk ("you") and Colt's Manufacturing Company LLC ("Colt") relating to your separation from Colt, effective November 14, 2014 (the "Separation Date"). You\nshould thoroughly review and understand the Agreement before signing it, and you are advised to consult with counsel before signing this Agreement.\nA.\nBENEFITS FOR SIGNING THIS AGREEMENT: In exchange for your execution of this Agreement and subject to the terms and conditions of this Agreement, Colt agrees to provide you with the\nfollowing benefits in connection with your separation (collectively, the "Separation Benefits"):\n1.\nContinuation of your salary (no including any bonus or incentive compensation) as of the Separation Date for fifty-two weeks ("Separation Pay") at a weekly rate of $7,210 for a total amount of $374,920\nless appropriate taxes and withholdings. Payment of the Separation Pay in the form of salary continuation shall commence, in accordance with Colt regular payroll practices, following the Effective Date of this Agreement, as set forth in\nSection below.\n2.\nIf applicable, continuation of your participation in Colt group health plans through December 31, 2014, on the same terms and conditions as existed immediately prior to the Separation Date, including\nyour responsibility to pay the employee portion of the coverage. If applicable after December 31, 2014, you may be eligible to continue health benefits under the Consolidated Omnibus Budget Reconciliation Act ("COBRA" at your\nsole expense.\nB.\nRELEASE AND WAIVER:\n1.\nIn\nexchange for the payments and other consideration described above you agree to release Colt and any and all of its parents, subsidiaries, affiliates, predecessors, successors and assigns (herein referred\nto\ncollectively as "Colt and Affiliates"), from any and all claims, demands, actions, or liabilities you may have against them, or any one of them, of whatever kind, including but not limited to those which are related in any way to your\nemployment by Colt and Affiliates or the termination of that employment. Y ou also agree to release from all claims, demand, actions, or liabilities the past, present, and future principals, agents, directors, officers, employees, fiduciaries,\nrepresentatives, successors and assigns of Colt and Affiliates (hereinafter, Associated Persons"). Y ou agree that you have executed this Agreement on your own behalf, and also on behalf of any heirs, agents, representatives, successors\nand assigns that you may have now or in the future.\n2.\nYou agree that this Release and Waiver covers, but is not limited to, claims arising under Title VII of the Civil Rights Act of 1964, as amended, the Employee Retirement Income Security Act of 1974, as\namended (also known as "ERISA") the Age Discrimination in Employment A as amended by the Older Workers Benefit Protection ("OWBPA"), the Americans with Disabilities of 1990, the Connecticut Fair Employment\nPractices\nAct,\nand\nany other federal, state or local law dealing with discrimination on any basis, including sex, race, national origin, veteran status, marital status, religion, disability, sexual orientation reservist status or age. ou also agree\nthat, except to the extent otherwise provided by law, this Release and Waiver includes claims based on any statute or on any contract or tort theories, whether based on common law or otherwise. This Release and Waiver does not apply to\nclaims arising\nunder any workers' compensation statute, except it does apply to claims for wrongful discharge or other discrimination in employment for exercising rights under such statute.\n3.\nIf any claim is not subject to release, to the extent permitted by law, you waive any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified\nclass, collective or multi-party action or proceeding based on such a claim in which Colt and A ffiliates or Associated Persons are parties. You promise not to consent to become a member of any class or collective in which claims are\nasserted against Colt and A ffiliates or A ssociated Persons that are related in any way to your employment or the termination of your employment with Colt. If, without your prior knowledge and consent, you are made a member of a class\nin any such proceeding, you agree to opt out of the class at the first opportunity.\n4.\nThis Release and Waiver applies to all complaints, claims or demands based on any facts or events, whether known or unknown by you, that occurred on or before the date you sign this Agreement.\nc.\nELIGIBILITY REQUIREMENTS/APPLICABLE DATA: In order to eliminate certain redundancies and duplication of services following Colt's acquisition of Colt Manufacturing Company LLC,\nColt has elected to implement the Human Resources 2014 Restructuring Program (the "Program"). This program has been developed to establish a streamlined, reorganization of the Human Resources function which will realign\nfunctional and task responsibilities in order to improve its ability to consistently and effectively deliver best practice performance. In addition, this and other reorganizations will support the new company leadership team and in support of\nthe 8Q Plan and enhanced stockholder value.\nIndividual(s) who are eligible to participate in the Program have been or will be selected for termination from their employment based on Colt's business needs and consideration of one or more of the following eligibility\ncriteria\n1.\nthe duplication and/or redundancy of the functions the individuals performs when compared with the functions performed by other individuals;\n2.\nthe individual's disciplinary history compared to other individuals performing the same or similar job functions;\n3.\nthe flexibility of the individual's skills including the individual's ability to perform multiple or varied functions according to business need, compared to the flexibility of the skills of individuals in the same or\nsimilar job classification;\n4.\nthe individual's performance and competency performing ob-related tasks as compared to the perforance and competency of other employees in the same job classification and business unit in performing\njob-related tasks\n5.\nthe individual's ability to assume, and perform competently, additional responsibilities following implementation of the Program\nAttached as Exhibit "A' is a list of the job title and ages of all individuals who have been selected for the Program as of their last date of employment with Colt A ttached as Exhibit B" is list of the job titles and ages of all individuals\nin the same decisional unit as you who have not been selected for the Program as of the date you receive this Agreement.\nD.\nNO FUTURE LAWSUITS: You promise never to file a lawsuit against Colt and Affiliates or Associated Persons, including but not limited to claims arising from or related to your employment with\nColt or the termination of that employment. Except as set forth in the preceding sentence, you further promise never to assist voluntarily any other person or entity filing a lawsuit or contemplating filing a lawsuit that asserts any claim or\ndemand against Colt\n2\nand ffiliates or Associated Persons. Colt and you acknowledge that this Agreement does not limit either party's right, where applicable, to file or to participate in an investigative proceeding of any federal, state or local governmental\nagency. To the extent permitted by law if a claim is brought in any forum by you or on your behalf against Colt and Affiliates or Associated Persons you hereby agree that you waive any right to recover damages or any other relief\nin\nsuch proceeding.\nE.\nPROTECTION OF CONFIDENTIAL AND PROPRIETARY INFORMATION, SURRENDER OF MATERIALS: (1) You acknowledge that you have signed and are bound by the Employee\nInvention and Confidential Information Agreement ("Confidentiality Agreement"). As material condition of your eligibility for the Separation Benefits, you expressly reaffirm your obligation to abide by the Confidentiality Agreement\nand agree tha you will do so. You further understand and agree that a violation or other failure to abide by the Confidentiality Agreement will result in forfeiture of the Separation Benefits described in Section A above and/or an\nobligation promptly to reimburse Colt for the cost of any Separation Benefits, including Separation Pay, that have already been paid or provided to you. (2) You affirm that you have returned to Colt all company property, including but\nnot limited to vehicle, door, file and other keys; laptops or other computers; computer software or hardware; telephones; PDAs electronic devices, or other such devices; credit cards equipment; and records, files or other documents,\nincluding electronically created or stored documents. You agree that you have not and will not retain any copies or excerpts of the materials described above, and that you will not attempt to retrieve or recreate any of the materials\ndescribed above after the Separation Date.\nF.\nAFFIRMATIONS: You affirm that you have been paid and/or have received all compensation, wages, bonuses, commission, vacation time and other benefits to which you may be entitled. You further\naffirm that you are not eligible for any additional severance or other pay other than as expressly set forth in this Agreement.\nYou affirm tha you are not aware of any compliance issues relating to Colt and Affiliates or Associated Persons. If you are aware of any such issues you affirm that such issues have been reported to Colt in accordance\nwith Colt policies\nG.\nCONFIDENTIALITY OF AGREEMENT: You agree to keep confidential the terms of this Agreement and will not disclose them to any person or entity, except as required by law and except that you\nmay\ndisclose the terms of this Agreement to immediate family member(s) and to your legal or financial counselors or advisors, so long as you first inform any such individuals of this Confidentiality provision and so long as they agree to\ncomply with this Confidentiality provision.\nH.\nNON-DISPARAGEMENT: ou agree that neither you nor anyone acting on your behalf will initiate or engage in any communication whatsoever with any person, which could reasonably be interpreted\nas derogatory or disparaging to or about Colt and Affiliates or Associated Persons.\nI.\nGOVERNING LAW: This greement shall be governed by and construed under the laws of the State of Connecticut.\nJ.\nTIME TO CONSIDER AGREEMENT: Y ou acknowledge and agree that you have been given an adequate and reasonable period of time to consider this Agreement. Specifically, you have at least\nforty-five (45) days from the date you received this Agreement within which to consider and sign it. If you do sign the Agreement, you then have a seven (7) day period thereafter within which you may revoke "Revocation Period"), if\nyou so choose.\n3\nRevocation of this Agreement would render all of its provisions including but not limited to Paragraphs A and B above nul and void, and you will not receive any separation payment. If you do choose to revoke this Agreement, you must\nprovide written notice of revocation, within the seven (7) day period after signing this Agreement, to John Coghlin, Senior Vice President and General Counsel, Colt's Manufacturing Company LLC, by fax, e-mail or mail. This\nAgreement shall become effective after the expiration of the seven (7) day Revocation Period with no revocation ("Effective Date").\nK\nENTIRE AGREEMENT: You have not relied on any representations, promises or agreements of any kind made to you in connection with your decision to sign this Agreement. This Agreement and\nthe Confidentiality Agreement as described above set forth the entire agreement between you and Colt and render null and void any and all prior or contemporaneous oral or written understandings, statements representations or promises,\nexcept as otherwise expressly stated above. No changes to this Agreement shall be made, except in writing and signed by both parties.\nYOU YOUARE ARE HEREBY ADVISED THAT YOU HAVE UP TO FORTY-FIVE (45) CALENDAR DAYS TO CONSIDER THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL\nRELEASE OF CLAIMS. YOUAR ALSO ADVISED TO CONSULT WITH ATTORNEY PRIOR TO SIGNING THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nOUAGREE THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS,\nDO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL FORTY-FIVE (45) CALENDAR DAY CONSIDERATION PERIOD.\nYOU FREELY AND KNOWINGLY AND AFTER DUE CONSIDERATION, ENTER INTO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF\nCLAIMS INTENDING TO WAIVE SETTLE AND RELEASE ALL CLAIMS OUHAVE OR MIGHT HAVE AGAINST COLT DEFENSE AND AFFILIATES OR ASSOCIATED PERSONS AS OF THE DATE YOU\nSIGN THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nYou have read, understand and voluntarily execute this Agreement and assent to its terms, affirming that your decision to sign this Agreement has been made freely and without any duress or coercion. Please return the signed\nAgreement\nto John Coghlin, Senior Vice President and General Counsel at Colt's Manufacturing Company LLC.\nDated:\nNovember 4 2014\nfor\n/s/ Dennis Veilleux\nColt's Manufacturing Company LLC\nBy: Dennis Veilleux, President and Chief Executive Officer\nDated:\nNovember 4, 2014\n/s/ John Michael Magouirk\nJ ohn Michaer Magouirk\n4\nEXHIBIT A\nINDIVIDUALS SELECTED FOR THE\nCOLT'S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\n(Vice President Sales Grade 19)\nJob Title\nIndividual' s. Age on His/Her Separation Date\nSr. Vice President/COO\n52.4 years\n5\nEXHIBIT B\nINDIVIDUALS NOT SELECTED FOR THE\nCOLT'S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\nIN THE SAME DECISIONAL UNIT ASYOU\nDECISIONAL UNIT: Sr. Vice President/C00 Grade\nJob Title\nIndividual's Age o on Your Separation Date\nUnique Job Grade and responsibility- No\nother individuals\n6	EX-10 .1 2 a14-24845 _1ex10d1.htm EX-10.1\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF CLAIMS\nThis Agreement is a contract between John Michael Magouirk (“you”) and Colt’s Manufacturing Company LLC (“Colt”) relating to your separation from Colt, effective November 14, 2014 (the “Separation Date”). You\nshould thoroughly review and understand the Agreement before signing it, and you are advised to consult with counsel before signing this Agreement.\nA.\nBENEFITS FOR SIGNING THIS AGREEMENT: In exchange for your execution of this Agreement and subject to the terms and conditions of this Agreement, Colt agrees to provide you with the\nfollowing benefits in connection with your separation (collectively, the “Separation Benefits”):\n1.\nContinuation of your salary (not including any bonus or incentive compensation) as of the Separation Date for fifty-two weeks (“Separation Pay”) at a weekly rate of $7,210 for a total amount of $374,920\nless appropriate taxes and withholdings. Payment of the Separation Pay in the form of salary continuation shall commence, in accordance with Colt regular payroll practices, following the Effective Date of this Agreement, as set forth in\nSection J below.\n2.\nIf applicable, continuation of your participation in Colt group health plans through December 31, 2014, on the same terms and conditions as existed immediately prior to the Separation Date, including\nyour responsibility to pay the employee portion of the coverage. If applicable, after December 31, 2014, you may be eligible to continue health benefits under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) at your\nsole expense.\nB.\nRELEASE AND WAIVER:\n1.\nIn exchange for the payments and other consideration described above, you agree to release Colt and any and all of its parents, subsidiaries, affiliates, predecessors, successors and assigns (herein referred\nto collectively as “Colt and Affiliates”), from any and all claims, demands, actions, or liabilities you may have against them, or any one of them, of whatever kind, including but not limited to those which are related in any way to your\nemployment by Colt and Affiliates or the termination of that employment. You also agree to release from all claims, demand, actions, or liabilities the past, present, and future principals, agents, directors, officers, employees, fiduciaries,\nrepresentatives, successors and assigns of Colt and Affiliates (hereinafter, “Associated Persons”). You agree that you have executed this Agreement on your own behalf, and also on behalf of any heirs, agents, representatives, successors\nand assigns that you may have now or in the future.\n2.\nYou agree that this Release and Waiver covers, but is not limited to, claims arising under Title VII of the Civil Rights Act of 1964, as amended, the Employee Retirement Income Security Act of 1974, as\namended (also known as “ERISA”), the Age Discrimination in Employment Act as amended by the Older Workers Benefit Protection Act (“OWBPA”), the Americans with Disabilities Act of 1990, the Connecticut Fair Employment\nPractices Act, and any other federal, state or local law dealing with discrimination on any basis, including sex, race, national origin, veteran status, marital status, religion, disability, sexual orientation, reservist status or age. You also agree\nthat, except to the extent otherwise provided by law, this Release and Waiver includes claims based on any statute or on any contract or tort theories, whether based on common law or otherwise. This Release and Waiver does not apply to\nclaims arising\nunder any workers’ compensation statute, except it does apply to claims for wrongful discharge or other discrimination in employment for exercising rights under such statute.\n3.\nIf any claim is not subject to release, to the extent permitted by law, you waive any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified\nclass, collective or multi-party action or proceeding based on such a claim in which Colt and Affiliates or Associated Persons are parties. You promise not to consent to become a member of any class or collective in which claims are\nasserted against Colt and Affiliates or Associated Persons that are related in any way to your employment or the termination of your employment with Colt. If, without your prior knowledge and consent, you are made a member of a class\nin any such proceeding, you agree to opt out of the class at the first opportunity.\n4.\nThis Release and Waiver applies to all complaints, claims or demands based on any facts or events, whether known or unknown by you, that occurred on or before the date you sign this Agreement.\nC.\nELIGIBILITY REQUIREMENTS/APPLICABLE DATA: In order to eliminate certain redundancies and duplication of services following Colt’s acquisition of Colt Manufacturing Company LLC,\nColt has elected to implement the Human Resources 2014 Restructuring Program (the “Program”). This program has been developed to establish a streamlined, reorganization of the Human Resources function which will realign\nfunctional and task responsibilities in order to improve its ability to consistently and effectively deliver best practice performance. In addition, this and other reorganizations will support the new company leadership team and in support of\nthe 8Q Plan and enhanced stockholder value.\nIndividual(s) who are eligible to participate in the Program have been or will be selected for termination from their employment based on Colt’s business needs and consideration of one or more of the following eligibility\ncriteria:\n1.\nthe duplication and/or redundancy of the functions the individuals performs when compared with the functions performed by other individuals;\n2.\nthe individual’s disciplinary history compared to other individuals performing the same or similar job functions;\n3.\nthe flexibility of the individual’s skills, including the individual’s ability to perform multiple or varied functions according to business need, compared to the flexibility of the skills of individuals in the same or\nsimilar job classification;\n4.\nthe individual’s performance and competency performing job-related tasks as compared to the performance and competency of other employees in the same job classification and business unit in performing\njob-related tasks\n5.\nthe individual’s ability to assume, and perform competently, additional responsibilities following implementation of the Program.\nAttached as Exhibit “A” is a list of the job title and ages of all individuals who have been selected for the Program as of their last date of employment with Colt. Attached as Exhibit “B” is a list of the job titles and ages of all individuals\nin the same decisional unit as you who have not been selected for the Program as of the date you receive this Agreement.\nD.\nNO FUTURE LAWSUITS: You promise never to file a lawsuit against Colt and Affiliates or Associated Persons, including but not limited to claims arising from or related to your employment with\nColt or the termination of that employment. Except as set forth in the preceding sentence, you further promise never to assist voluntarily any other person or entity filing a lawsuit or contemplating filing a lawsuit that asserts any claim or\ndemand against Colt\n2\nand Affiliates or Associated Persons. Colt and you acknowledge that this Agreement does not limit either party’s right, where applicable, to file or to participate in an investigative proceeding of any federal, state or local governmental\nagency. To the extent permitted by law, if a claim is brought in any forum by you or on your behalf against Colt and Affiliates or Associated Persons, you hereby agree that you waive any right to recover damages or any other relief in\nsuch proceeding.\nE.\nPROTECTION OF CONFIDENTIAL AND PROPRIETARY INFORMATION, SURRENDER OF MATERIALS: (1) You acknowledge that you have signed and are bound by the Employee\nInvention and Confidential Information Agreement (“Confidentiality Agreement”). As a material condition of your eligibility for the Separation Benefits, you expressly reaffirm your obligation to abide by the Confidentiality Agreement\nand agree that you will do so. You further understand and agree that a violation or other failure to abide by the Confidentiality Agreement will result in forfeiture of the Separation Benefits described in Section A above and/or an\nobligation promptly to reimburse Colt for the cost of any Separation Benefits, including Separation Pay, that have already been paid or provided to you. (2) You affirm that you have returned to Colt all company property, including but\nnot limited to vehicle, door, file and other keys; laptops or other computers; computer software or hardware; telephones; PDAs, electronic devices, or other such devices; credit cards; equipment; and records, files or other documents,\nincluding electronically created or stored documents. You agree that you have not and will not retain any copies or excerpts of the materials described above, and that you will not attempt to retrieve or recreate any of the materials\ndescribed above after the Separation Date.\nF.\nAFFIRMATIONS: You affirm that you have been paid and/or have received all compensation, wages, bonuses, commission, vacation time and other benefits to which you may be entitled. You further\naffirm that you are not eligible for any additional severance or other pay other than as expressly set forth in this Agreement.\nYou affirm that you are not aware of any compliance issues relating to Colt and Affiliates or Associated Persons. If you are aware of any such issues, you affirm that such issues have been reported to Colt in accordance\nwith Colt policies.\nG.\nCONFIDENTIALITY OF AGREEMENT: You agree to keep confidential the terms of this Agreement and will not disclose them to any person or entity, except as required by law and except that you\nmay disclose the terms of this Agreement to immediate family member(s) and to your legal or financial counselors or advisors, so long as you first inform any such individuals of this Confidentiality provision and so long as they agree to\ncomply with this Confidentiality provision.\nH.\nNON-DISPARAGEMENT: You agree that neither you nor anyone acting on your behalf will initiate or engage in any communication whatsoever with any person, which could reasonably be interpreted\nas derogatory or disparaging to or about Colt and Affiliates or Associated Persons.\nI.\nGOVERNING LAW: This Agreement shall be governed by and construed under the laws of the State of Connecticut.\nJ.\nTIME TO CONSIDER AGREEMENT: You acknowledge and agree that you have been given an adequate and reasonable period of time to consider this Agreement. Specifically, you have at least\nforty-five (45) days from the date you received this Agreement within which to consider and sign it. If you do sign the Agreement, you then have a seven (7) day period thereafter within which you may revoke it (“Revocation Period”), if\nyou so choose.\n3\nRevocation of this Agreement would render all of its provisions, including but not limited to Paragraphs A and B above null and void, and you will not receive any separation payment. If you do choose to revoke this Agreement, you must\nprovide written notice of revocation, within the seven (7) day period after signing this Agreement, to John Coghlin, Senior Vice President and General Counsel, Colt’s Manufacturing Company LLC, by fax, e-mail or mail. This\nAgreement shall become effective after the expiration of the seven (7) day Revocation Period with no revocation (“Effective Date”).\nK\nENTIRE AGREEMENT: You have not relied on any representations, promises, or agreements of any kind made to you in connection with your decision to sign this Agreement. This Agreement and\nthe Confidentiality Agreement as described above set forth the entire agreement between you and Colt and render null and void any and all prior or contemporaneous oral or written understandings, statements, representations or promises,\nexcept as otherwise expressly stated above. No changes to this Agreement shall be made, except in writing and signed by both parties.\nYOU ARE HEREBY ADVISED THAT YOU HAVE UP TO FORTY-FIVE (45) CALENDAR DAYS TO CONSIDER THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL\nRELEASE OF CLAIMS. YOU ARE ALSO ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nYOU AGREE THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE , MADE TO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS,\nDO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL FORTY-FIVE (45) CALENDAR DAY CONSIDERATION PERIOD.\nYOU FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION , ENTER INTO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF\nCLAIMS INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS YOU HAVE OR MIGHT HAVE AGAINST COLT DEFENSE AND AFFILIATES OR ASSOCIATED PERSONS AS OF THE DATE YOU\nSIGN THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nYou have read, understand and voluntarily execute this Agreement and assent to its terms, affirming that your decision to sign this Agreement has been made freely and without any duress or coercion. Please return the signed Agreement\nto John Coghlin, Senior Vice President and General Counsel at Colt’s Manufacturing Company LLC.\nDated:\nNovember 4, 2014\nfor\n/s/ Dennis Veilleux\nColt’s Manufacturing Company LLC\nBy: Dennis Veilleux, President and Chief Executive Officer\nDated:\nNovember 4, 2014\n/s/ John Michael Magouirk\nJohn Michael Magouirk\n4\nEXHIBIT A\nINDIVIDUALS SELECTED FOR THE\nCOLT’S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\n(Vice President Sales Grade 19)\nJob Title\nIndividual’s Age on His/Her Separation Date\nSr. Vice President/COO\n52.4 years\n5\nEXHIBIT B\nINDIVIDUALS NOT SELECTED FOR THE\nCOLT’S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\nIN THE SAME DECISIONAL UNIT AS YOU\nDECISIONAL UNIT: Sr. Vice President/COO Grade\nJob Title\nIndividual’s Age on Your Separation Date\nUnique Job Grade and responsibility- No\nother individuals\n6
1c36bbc314ee3f0cbe059d15d4fdd36a.pdf	effective_date jurisdiction party term	EX-99.(D)(9) 3 a16-19711_1ex99dd9.htm EX-99.(D)(9)\nExhibit (d)(9)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated and effective as of November 28, 2015, between Affinity Gaming, a\nNevada corporation (the “Company”), and Z Capital Partners L.L.C ., a Delaware limited liability company (“Receiving Party”).\nWhereas, Receiving Party has requested the Company to provide certain information in connection with Receiving Party’s consideration\nof a potential transaction (the “Potential Transaction”) involving the Company and Receiving Party, and the Company desires to protect the\nconfidentiality of the information that it provides and to have Receiving Party take or abstain from taking certain actions in accordance with the\nprovisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1.\nDefinitions.\n(a)\n“Evaluation Material” means any information (whether prepared by the Company or its Representatives (as defined\nherein) or any other person, and regardless of the form of communication, including whether written, oral or otherwise) that is furnished or made\navailable to Receiving Party or any of its Representatives by or on behalf of the Company or any of its Representatives, on or after the date\nhereof, and all notes, analyses, compilations, studies, interpretations, memoranda, reports, projections, forecasts or other documents or materials\n(regardless of the form thereof) prepared by Receiving Party or any of its Representatives which contain or otherwise reproduce or reflect, in\nwhole or in part, any such information; provided, that “Evaluation Material” does not include information which:\n(i)\nis or becomes generally available to the public other than as a result of an act or omission directly or\nindirectly by Receiving Party or any of its Representatives in violation of this Agreement or any other obligation of confidentiality (contractual,\nfiduciary, or otherwise) known by, or that reasonably should have been known by, Receiving Party or any of its Representatives;\n(ii)\nis already in Receiving Party’s or any of its Representatives’ possession and was not furnished by or on\nbehalf of the Company or its Representatives, provided, that such information is not known by, or reasonably should have been known by,\nReceiving Party or any of its Representatives to be subject to another confidentiality agreement or other obligation of confidentiality (contractual,\nfiduciary, or otherwise);\n(iii) becomes available to Receiving Party or any of its Representatives on a non-confidential basis from a source\nother than the Company or any of its Representatives, provided, that Receiving Party and its Representatives do not have knowledge, and could\nnot reasonably have known, that such information is subject to another confidentiality agreement or other obligation of confidentiality\n(contractual, fiduciary, or otherwise); or\n(iv) is independently developed by Receiving Party or its Representatives without the use of, reference to or\nreliance upon any information furnished to Receiving Party or any of its Representatives by or on behalf of the Company or any of its\nRepresentatives and without any violation of this Agreement or any other obligation of confidentiality (contractual, fiduciary, or otherwise)\nknown by, or that reasonably should have been known by, Receiving Party or any of its Representatives.\n1\n(b)\n“Representatives” means, with respect to a party, such party and the directors, officers, employees, affiliates,\nmembers, agents, or advisors (including attorneys, accountants, financial advisers, consultants and investment bankers) of such party and, in the\ncase of Receiving Party, any debt financing source that at the date hereof is listed on Exhibit A or after the date hereof is specifically approved in\nwriting in advance by the Company for Receiving Party in connection with the Potential Transaction; provided that, for the purposes of this\nAgreement, no such person shall be deemed a “Representative” of Receiving Party, nor shall Receiving Party have any liability for such person,\nunless such person has been furnished with Evaluation Material or Transaction Information or is acting at the direction of Receiving Party or any\naffiliate or Representative of Receiving Party.\n(c)\nThe term “person” means any corporation, company, partnership, joint venture, group, limited liability company, or\nother entity or individual; the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as amended\n(such Act, as amended, being referred to herein as the “Exchange Act”), provided, that the Company, and persons controlled by the Company,\nshall be deemed not to be an affiliate of Receiving Party; and the term “including” and correlative terms shall be deemed to be followed by\n“without limitation”.\n2.\nUse and Disclosure of Evaluation Material.\n(a)\nReceiving Party agrees that it shall, and that it shall use commercially reasonable efforts to cause its Representatives\nto:\n(i)\nuse the Evaluation Material solely for the purpose of evaluating and negotiating the Potential Transaction;\nand\n(ii)\nexcept as provided in Section 3 hereof, keep the Evaluation Material confidential and not disclose any\nEvaluation Material, directly or indirectly, to any other person;\nprovided, that the foregoing provisions of this sub-section (a) shall not prohibit the two (2) officers of Receiving Party who as of the date hereof\nare directors of the Company from using Evaluation Material received by them in their capacities as directors of the Company as and to the\nextent required by their fiduciary duties as directors of the Company under applicable law.\nNotwithstanding the foregoing provisions of this sub-section (a), Receiving Party may disclose Evaluation Material to Receiving Party’s\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating the Potential Transaction, provided, that\nReceiving Party’s Representatives prior to any such disclosure are informed of the confidential nature of such Evaluation Material and are\ndirected (i) to use such information solely for the purpose of evaluating and negotiating the Potential Transaction and (ii) to maintain the\nconfidentiality of such Evaluation Material.\n(b)\nExcept as provided in Section 3 hereof, the Company and Receiving Party agree that neither the Company, Receiving\nParty nor any of their respective Representatives shall disclose to any person (other than their respective Representatives to the extent permitted\nhereby) (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been or may be requested, received or made available to it,\n(iii) that investigations, discussions or negotiations are taking (or have taken) place concerning, or that the Company and Receiving Party are\nconsidering, a possible transaction, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions\n(collectively, the “Transaction Information”); provided, that notwithstanding the foregoing, the Company will not be restricted in disclosing any\nTransaction Information to the Company’s stockholders, debtholders or other stakeholders, or have any restrictions under this Agreement with\nrespect to any Transaction Information\n2\nthat is or becomes generally available to the public other than as a result of an act or omission directly or indirectly by the Company or any of its\nRepresentatives in violation of this Section 2(b).\n(c)\nReceiving Party shall be directly responsible and liable to the Company for any use or disclosure by any of Receiving\nParty’s Representatives of any Evaluation Material or Transaction Information which, if done by Receiving Party itself, would be a breach of this\nAgreement, it being understood that such responsibility and liability shall be in addition to and not by way of limitation of any right or remedy\nthe Company may have against Receiving Party’s Representatives with respect to such breach. Receiving Party agrees, at its sole expense, to take\ncommercially reasonable measures to restrain its Representatives from making or allowing to be made prohibited or unauthorized uses or\ndisclosures of Evaluation Material and Transaction Information under this Agreement.\n(d)\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\n(e)\nAll Evaluation Material shall remain the property of the Company and/or its applicable subsidiary. No license or,\nexcept as provided in Section 2(a) hereof, right to use or other similar rights with respect to the Evaluation Material are granted to Receiving\nParty or any of its Representatives, by implication or otherwise.\n(f)\nReceiving Party represents and warrants that neither it nor any of its Representatives has entered into, and agrees that\nwithout the Company’s prior written consent none of Receiving Party and its Representatives will enter into, any discussions or any agreement,\nunderstanding or arrangement (whether or not binding), directly or indirectly, with, and will not otherwise directly or indirectly approach, (i) any\nperson with respect to or relating to participation by such person or others (whether as club participant, principal, co-investor, co-bidder,\nfinancing source or otherwise) in any transaction with or relating to the Company (whether before or after the closing of any transaction) or any\nof its subsidiaries or (ii) any stockholder, director (other than (x) the two (2) directors of the Company who as of the date hereof are also officers\nof Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as such), officer\nor other employee of the Company or any of its subsidiaries with respect to or relating to a transaction with the Company or any of its businesses\nor operations from and after any such transaction, including as to any equity “rollover” or any employment with or consulting services to the\nCompany or any affiliate thereof.\n3.\nLegally Required Disclosure.\nIf the Company, Receiving Party or any of their respective Representatives is requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any\nEvaluation Material or Transaction Information, such party shall, to the extent permitted by law, promptly provide the other party with written\nnotice of any such request or requirement (and the terms and conditions thereof). If the other party seeks a protective order or other remedy, the\nparty subject to such request or requirement (the “recipient”) shall, at the other party’s expense, provide such cooperation as the other party shall\n3\nreasonably request. If, in the absence of a protective order or other remedy or the receipt by the recipient of a waiver from the other party, the\nrecipient or any of its Representatives is nonetheless required to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity, then the recipient or such Representative may, without liability hereunder, disclose to such tribunal or other entity that portion (but only\nthat portion) of the Evaluation Material or Transaction Information that is legally required to be disclosed, provided, that recipient and such\nRepresentative shall exercise commercially reasonable efforts to minimize the disclosure of Evaluation Material or Transaction Information and\nto preserve the confidentiality thereof, including by seeking, at the other party’s expense, to obtain a protective order or other assurance that\nconfidential treatment will be accorded to such Evaluation Material or Transaction Information. Notwithstanding the foregoing, (a) the recipient\nand its Representatives shall not be required to notify the other party where disclosure is in connection with a routine audit or examination by a\nregulatory authority, bank examiner or auditor that does not explicitly reference the other party, the Transaction or this Agreement and (b) the\nrecipient and its applicable affiliates shall not be required to notify the other party, and shall be permitted to publicly disclose this Agreement, the\nexclusivity agreement entered into between the Company and the Receiving Party dated as of the date hereof (and any amendment or termination\nhereof or thereof), any Confidential Information or Transaction Information to the extent required in order to comply with the rules and\nregulations of the U.S. Securities and Exchange Commission or the federal securities laws.\n4.\nReturn of Evaluation Material.\nAt any time upon the written request of the Company (in its sole discretion and for any or no reason), Receiving Party shall promptly\n(and in any event within ten (10) business days after such request) return to the Company (or, at Receiving Party’s option, destroy) all Evaluation\nMaterial (and all copies thereof) furnished to Receiving Party or its Representatives by or on behalf of the Company or its Representatives, or\nprepared by Receiving Party or any of its Representatives, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material. Any such destruction shall be certified in\nwriting to the Company by an authorized officer of Receiving Party upon the request of the Company.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its affiliates and Representatives shall continue to\nbe bound by their obligations hereunder.\nNotwithstanding the foregoing, it is understood that information in an intangible or electronic format containing Evaluation Material\nthat cannot through commercially reasonable means be removed, erased or otherwise deleted from archival systems may be so retained, and that\nReceiving Party and its Representatives may retain Evaluation Material solely to the extent required under any applicable law, statute, rule,\nregulation or established internal compliance or document retention policy; provided that Receiving Party and such Representatives shall\ncontinue to be bound by their confidentiality and other obligations hereunder with respect to all such Evaluation Material.\n5.\nTerm.\nNotwithstanding anything to the contrary stated herein, the obligations set forth in this Agreement shall continue until the earlier of\n(i) the second (2nd) anniversary of the date hereof and (ii) consummation of the Potential Transaction.\n6.\nNonsolicitation.\nReceiving Party agrees that, for a period of twelve (12) months from the date hereof, neither it nor any of its affiliates, nor any other\nperson acting at its or its affiliates’ direction or on its or its affiliates’ behalf, shall, directly or indirectly, solicit to employ or entice away or offer\nto enter into any\n4\nagreement with any person who is an officer, employee at or above corporate vice president, or manager of the Company or any of its\nsubsidiaries; provided, that this section shall not prevent Receiving Party or its affiliates from soliciting or hiring a person identified above (a\n“Covered Person”) (i) if such Covered Person responds to a general solicitation of employment not specifically directed toward the Company or\nany of its subsidiaries or particular employees of the Company or any of its subsidiaries (including general solicitations made through executive\nrecruitment or placement agencies not directed to employees of the Company or any of its subsidiaries), (ii) if such Covered Person approaches\nReceiving Party or any of its affiliates on an unsolicited basis or (iii) following cessation of such Covered Person’s employment with the\nCompany or any of its subsidiaries without any solicitation or encouragement by Receiving Party or any of its Affiliates.\n7.\n[Reserved]\n8.\nGaming Regulations.\nReceiving Party acknowledges that the Company and its subsidiaries conduct a business that is subject to, and exists because of,\nprivileged licenses issued by various governmental authorities. Receiving Party acknowledges that the Company is subject to the provisions of\nthe following acts and any rules, regulations or orders promulgated thereunder: (i) the Nevada Gaming Control Act, (ii) Colorado Limited\nGaming Act and Colorado Code of Regulations, (iii) the applicable gaming laws and regulations of Missouri, (iv) the applicable gaming laws and\nregulations of Iowa or (v) any other act, law, statute, ordinance, rule, regulation or tribal compact governing any casino operation of the\nCompany and its subsidiaries (collectively, the “Acts”), which prohibits a gaming licensee from entering into any contract or agreement with\n(a) a person who is found unsuitable, who is denied a license, or whose license was revoked by the gaming authorities of (1) Nevada,\n(2) Colorado, (3) Missouri, (4) Iowa or (5) any other gaming regulatory board, agency or commission having regulatory authority over the\nCompany and its subsidiaries (each a “Commission”), or (b) any business enterprise under control of such person without the prior approval of\nthe appropriate Commission.\nReceiving Party will use its reasonable efforts to comply with and to cause each of its affiliates and other Representatives to comply\nwith the requirements of all Acts to the extent the Acts apply to Receiving Party.\n9.\nTrading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who receive any Evaluation Material or Transaction\nInformation will be so advised) that applicable securities laws generally prohibit any person who is aware of material, non-public information\nabout a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n10.\nNo Representations and Warranties; Relationship to Definitive Agreement.\n(a)\nReceiving Party understands and agrees that neither the Company nor any of its respective affiliates or\nRepresentatives, nor any other person on any of their behalves, has made or is making, and that each of the foregoing hereby disclaims, any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, and Receiving Party\nrepresents that neither it nor any of its affiliates or Representatives has relied, is relying, is entitled to rely on or will rely upon any such\nrepresentation or warranty, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Receiving Party\nagrees that neither the Company nor\n5\nany of its respective affiliates or Representatives, nor any other person on any of their behalves, shall have any liability to Receiving Party or any\nof its affiliates or Representatives or any other person relating to or resulting from any use of the Evaluation Material or any errors therein or\nomissions therefrom, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Without limiting the\ngenerality of the preceding two sentences, the Evaluation Material may include statements, estimates and projections provided by the Company\nor its affiliates or Representatives with respect to the anticipated future performance of the Company. Such statements, estimates and projections\nreflect various assumptions made by the Company concerning anticipated results, which assumptions may or may not prove to be correct. No\nrepresentations are made as to the accuracy of such assumptions, statements, estimates or projections. Only those representations or warranties\nwhich are made in a definitive agreement, when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b)\nNo contract or agreement providing for any transaction involving the parties shall be deemed to exist unless and until\na definitive agreement has been executed and delivered. Unless and until a definitive agreement regarding a transaction has been executed and\ndelivered, neither party hereto will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this\nAgreement or any other written or oral communication with respect to such transaction, except for the matters specifically agreed to herein.\n(c)\nThe Company reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with\nregard to a transaction between the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or\nno reason. Receiving Party agrees that the Company and its affiliates and Representatives shall be free to conduct any process for any transaction\nin such manner as they or any of them, in their or its sole discretion, shall determine (including negotiating with other parties and entering into a\npreliminary or definitive agreement without prior notice to Receiving Party or any other person), and that any procedures relating to such process\nor transaction may be changed at any time without notice to Receiving Party or any other person.\n11.\nContacts and Communications.\nReceiving Party agrees that all contacts and communications by it or its Representatives with the Company or its Representatives\nregarding the Potential Transaction or the Evaluation Material, all requests for additional information, facility tours or management meetings,\nand all discussions or questions regarding procedures with respect to the Potential Transaction, will be submitted or directed only to those\nindividuals as the Company shall instruct in writing. Without the express prior consent of the Company, Receiving Party agrees that it will not,\ndirectly or indirectly, contact or communicate with any officer, employee, director (other than (x) the two (2) directors of the Company currently\nemployed by Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as\nsuch), stockholder (other than Receiving Party’s affiliates), agent, affiliate (other than Receiving Party’s affiliates), customer or business partner\nof the Company regarding Evaluation Material or a Potential Transaction between the parties.\n12.\nMiscellaneous.\n(a)\nReceiving Party represents and warrants to the Company that it is acting as a principal in the Potential Transaction and\nnot as part of a group with any third parties (other than affiliates of Receiving Party).\n6\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without\ngiving effect to the conflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any\nState or Federal court sitting in Clark County in the State of Nevada over any suit, action or proceeding arising out of or relating to this\nAgreement. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered mail addressed to such party\nshall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim\nthat any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Each party agrees that a final\njudgment in any suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be enforced in any\nother courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n(c)\nReceiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation\nMaterial and that irreparable damage may result to the Company if information contained therein or derived therefrom is disclosed to any person\nexcept as herein provided or is used for any purpose other than the evaluation and negotiation of the Potential Transaction. Receiving Party\nfurther acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or\nany of Receiving Party’s Representatives, and that the Company may seek equitable relief, including injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by Receiving\nParty or any of Receiving Party’s Representatives, but shall be in addition to all of the Company’s other remedies available at law or in equity. In\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a party has\nbreached this Agreement, then such party shall be liable for and pay to the other party the reasonable legal fees and disbursements that the other\nparty has incurred in connection with such litigation, including any appeal therefrom.\n(d)\nThis Agreement may not be assigned in whole or in part by either party without the prior written consent of the other\nparty, and any purported assignment without such consent shall be null and void, provided, that the Company may, without the prior written\nconsent of Receiving Party, assign all or any of its rights hereunder to any person who has acquired all or substantially all of the Company’s\noutstanding equity securities or assets. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and\ntheir respective successors and assigns.\n(e)\nThis Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision\nof this Agreement may be waived or amended except by the express written consent of the parties. No failure or delay by the parties in exercising\nany right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege hereunder.\n(f)\nAll notices and other communications hereunder shall be in writing. Any notice or other communication hereunder\nshall be deemed duly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier\nservice, in each case to the intended recipient as set forth below, or the same day of delivery if sent by both facsimile and email with\nconfirmation of receipt:\n7\nIf to the Company:\nAffinity Gaming\n3755 Breakthrough Way, Suite 300\nLas Vegas, Nevada 89135\nAttention: Marc Rubinstein, Esq.\nFacsimile: (702) 341-2581\nE-mail: mrubinstein@affinitygaming.com\nWith a copy to:\nMorrison & Foerster LLP\n425 Market Street\nSan Francisco, CA 94105\nAttention: Brandon C. Parris, Esq.\nFacsimile: (415) 276-6352\nE-mail: bparris@mofo.com\nIf to Receiving Party:\nZ Capital Partners L.L.C .\n1330 Avenue of the Americas\nSuite 1100\nNew York, NY 10019\nAttention: Martin Auerbach, Esq.\nFacsimile: (646) 304-0175\nE-mail: mauerbach@zcap.net\nWith a copy to:\nSidley Austin LLP\n1999 Avenue of the Stars, 17 Floor\nLos Angeles, CA 90067\nAttention: Vijay S. Sekhon, Esq.\nFacsimile: (310) 595-9501\nE-mail: vsekhon@sidley.com\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited\ncourier, messenger service, telecopy, telex, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly\ngiven unless and until the party for whom it is intended actually receives it. Any party may change the address to which notices and other\ncommunications hereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(g)\nFor the convenience of the parties, this Agreement may be executed by facsimile or e-mail and in counterparts, each\nof which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(h)\nThe section headings contained in this Agreement are inserted for convenience only and shall not affect in any way\nthe meaning or interpretation of this Agreement.\n8\n(i)\nIf any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or\nin part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by applicable law and such invalid or unenforceable provision or portion shall be replaced by a provision or term that is valid and\nenforceable and that comes closest to expressing the parties’ intention with respect to such invalid or unenforceable provision or portion.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nAFFINITY GAMING\nBy: /s/ Marc H. Rubinstein\nTitle: Sr. VP, GC & Secretary\nZ CAPITAL PARTNERS L.L .C .\n/s/ James J. Zenni, Jr.\nBy: James J. Zenni, Jr.\nTitle: President and Chief Executive Officer\n[Signature page to Confidentiality Agreement]\n10\nth	EX-99.(D)(9) 3 a16-19711_1ex99dd9.htm EX-99.(D)(9)\nExhibit (d)(9)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated and effective as of November 28, 2015, between Affinity Gaming, a\nNevada corporation (the “Company”), and Z Capital Partners L.L.C., a Delaware limited liability company (“Receiving Party”).\nWhereas, Receiving Party has requested the Company to provide certain information in connection with Receiving Party’s consideration\nof a potential transaction (the “Potential Transaction”) involving the Company and Receiving Party, and the Company desires to protect the\nconfidentiality of the information that it provides and to have Receiving Party take or abstain from taking certain actions in accordance with the\nprovisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Definitions.\n(a) “Evaluation Material” means any information (whether prepared by the Company or its Representatives (as defined\nherein) or any other person, and regardless of the form of communication, including whether written, oral or otherwise) that is furnished or made\navailable to Receiving Party or any of its Representatives by or on behalf of the Company or any of its Representatives, on or after the date\nhereof, and all notes, analyses, compilations, studies, interpretations, memoranda, reports, projections, forecasts or other documents or materials\n(regardless of the form thereof) prepared by Receiving Party or any of its Representatives which contain or otherwise reproduce or reflect, in\nwhole or in part, any such information; provided, that “Evaluation Material” does not include information which:\n@) is or becomes generally available to the public other than as a result of an act or omission directly or\nindirectly by Receiving Party or any of its Representatives in violation of this Agreement or any other obligation of confidentiality (contractual,\nfiduciary, or otherwise) known by, or that reasonably should have been known by, Receiving Party or any of its Representatives;\n(ii) is already in Receiving Party’s or any of its Representatives’ possession and was not furnished by or on\nbehalf of the Company or its Representatives, provided, that such information is not known by, or reasonably should have been known by,\nReceiving Party or any of its Representatives to be subject to another confidentiality agreement or other obligation of confidentiality (contractual,\nfiduciary, or otherwise);\n(iii) becomes available to Receiving Party or any of its Representatives on a non-confidential basis from a source\nother than the Company or any of its Representatives, provided, that Receiving Party and its Representatives do not have knowledge, and could\nnot reasonably have known, that such information is subject to another confidentiality agreement or other obligation of confidentiality\n(contractual, fiduciary, or otherwise); or\n@iv) is independently developed by Receiving Party or its Representatives without the use of, reference to or\nreliance upon any information furnished to Receiving Party or any of its Representatives by or on behalf of the Company or any of its\nRepresentatives and without any violation of this Agreement or any other obligation of confidentiality (contractual, fiduciary, or otherwise)\nknown by, or that reasonably should have been known by, Receiving Party or any of its Representatives.\n \n(b) “Representatives” means, with respect to a party, such party and the directors, officers, employees, affiliates,\nmembers, agents, or advisors (including attorneys, accountants, financial advisers, consultants and investment bankers) of such party and, in the\ncase of Receiving Party, any debt financing source that at the date hereof is listed on Exhibit A or after the date hereof is specifically approved in\nwriting in advance by the Company for Receiving Party in connection with the Potential Transaction; provided that, for the purposes of this\nAgreement, no such person shall be deemed a “Representative” of Receiving Party, nor shall Receiving Party have any liability for such person,\nunless such person has been furnished with Evaluation Material or Transaction Information or is acting at the direction of Receiving Party or any\naffiliate or Representative of Receiving Party.\n(0 The term “person” means any corporation, company, partnership, joint venture, group, limited liability company, or\nother entity or individual; the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as amended\n(such Act, as amended, being referred to herein as the “Exchange Act”), provided, that the Company, and persons controlled by the Company,\nshall be deemed not to be an affiliate of Receiving Party; and the term “including” and correlative terms shall be deemed to be followed by\n“without limitation”.\n2. Use and Disclosure of Evaluation Material.\n(a) Receiving Party agrees that it shall, and that it shall use commercially reasonable efforts to cause its Representatives\nto:\n@) use the Evaluation Material solely for the purpose of evaluating and negotiating the Potential Transaction;\nand\n(ii) except as provided in Section 3 hereof, keep the Evaluation Material confidential and not disclose any\nEvaluation Material, directly or indirectly, to any other person;\nprovided, that the foregoing provisions of this sub-section (a) shall not prohibit the two (2) officers of Receiving Party who as of the date hereof\nare directors of the Company from using Evaluation Material received by them in their capacities as directors of the Company as and to the\nextent required by their fiduciary duties as directors of the Company under applicable law.\nNotwithstanding the foregoing provisions of this sub-section (a), Receiving Party may disclose Evaluation Material to Receiving Party’s\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating the Potential Transaction, provided, that\nReceiving Party’s Representatives prior to any such disclosure are informed of the confidential nature of such Evaluation Material and are\ndirected (i) to use such information solely for the purpose of evaluating and negotiating the Potential Transaction and (ii) to maintain the\nconfidentiality of such Evaluation Material.\n(b) Except as provided in Section 3 hereof, the Company and Receiving Party agree that neither the Company, Receiving\nParty nor any of their respective Representatives shall disclose to any person (other than their respective Representatives to the extent permitted\nhereby) (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been or may be requested, received or made available to it,\n(iii) that investigations, discussions or negotiations are taking (or have taken) place concerning, or that the Company and Receiving Party are\nconsidering, a possible transaction, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions\n(collectively, the “Transaction Information”); provided, that notwithstanding the foregoing, the Company will not be restricted in disclosing any\nTransaction Information to the Company’s stockholders, debtholders or other stakeholders, or have any restrictions under this Agreement with\nrespect to any Transaction Information\n \nthat is or becomes generally available to the public other than as a result of an act or omission directly or indirectly by the Company or any of its\nRepresentatives in violation of this Section 2(b).\n(0 Receiving Party shall be directly responsible and liable to the Company for any use or disclosure by any of Receiving\nParty’s Representatives of any Evaluation Material or Transaction Information which, if done by Receiving Party itself, would be a breach of this\nAgreement, it being understood that such responsibility and liability shall be in addition to and not by way of limitation of any right or remedy\nthe Company may have against Receiving Party’s Representatives with respect to such breach. Receiving Party agrees, at its sole expense, to take\ncommercially reasonable measures to restrain its Representatives from making or allowing to be made prohibited or unauthorized uses or\ndisclosures of Evaluation Material and Transaction Information under this Agreement.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\n(e) All Evaluation Material shall remain the property of the Company and/or its applicable subsidiary. No license or,\nexcept as provided in Section 2(a) hereof, right to use or other similar rights with respect to the Evaluation Material are granted to Receiving\nParty or any of its Representatives, by implication or otherwise.\n® Receiving Party represents and warrants that neither it nor any of its Representatives has entered into, and agrees that\nwithout the Company’s prior written consent none of Receiving Party and its Representatives will enter into, any discussions or any agreement,\nunderstanding or arrangement (whether or not binding), directly or indirectly, with, and will not otherwise directly or indirectly approach, (i) any\nperson with respect to or relating to participation by such person or others (whether as club participant, principal, co-investor, co-bidder,\nfinancing source or otherwise) in any transaction with or relating to the Company (whether before or after the closing of any transaction) or any\nof its subsidiaries or (ii) any stockholder, director (other than (x) the two (2) directors of the Company who as of the date hereof are also officers\nof Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as such), officer\nor other employee of the Company or any of its subsidiaries with respect to or relating to a transaction with the Company or any of its businesses\nor operations from and after any such transaction, including as to any equity “rollover” or any employment with or consulting services to the\nCompany or any affiliate thereof.\n3. Legally Required Disclosure.\nIf the Company, Receiving Party or any of their respective Representatives is requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any\nEvaluation Material or Transaction Information, such party shall, to the extent permitted by law, promptly provide the other party with written\nnotice of any such request or requirement (and the terms and conditions thereof). If the other party seeks a protective order or other remedy, the\nparty subject to such request or requirement (the “recipient”) shall, at the other party’s expense, provide such cooperation as the other party shall\n3\n \nreasonably request. If, in the absence of a protective order or other remedy or the receipt by the recipient of a waiver from the other party, the\nrecipient or any of its Representatives is nonetheless required to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity, then the recipient or such Representative may, without liability hereunder, disclose to such tribunal or other entity that portion (but only\nthat portion) of the Evaluation Material or Transaction Information that is legally required to be disclosed, provided, that recipient and such\nRepresentative shall exercise commercially reasonable efforts to minimize the disclosure of Evaluation Material or Transaction Information and\nto preserve the confidentiality thereof, including by seeking, at the other party’s expense, to obtain a protective order or other assurance that\nconfidential treatment will be accorded to such Evaluation Material or Transaction Information. Notwithstanding the foregoing, (a) the recipient\nand its Representatives shall not be required to notify the other party where disclosure is in connection with a routine audit or examination by a\nregulatory authority, bank examiner or auditor that does not explicitly reference the other party, the Transaction or this Agreement and (b) the\nrecipient and its applicable affiliates shall not be required to notify the other party, and shall be permitted to publicly disclose this Agreement, the\nexclusivity agreement entered into between the Company and the Receiving Party dated as of the date hereof (and any amendment or termination\nhereof or thereof), any Confidential Information or Transaction Information to the extent required in order to comply with the rules and\nregulations of the U.S. Securities and Exchange Commission or the federal securities laws.\n \n4, Return of Evaluation Material.\nAt any time upon the written request of the Company (in its sole discretion and for any or no reason), Receiving Party shall promptly\n(and in any event within ten (10) business days after such request) return to the Company (or, at Receiving Party’s option, destroy) all Evaluation\nMaterial (and all copies thereof) furnished to Receiving Party or its Representatives by or on behalf of the Company or its Representatives, or\nprepared by Receiving Party or any of its Representatives, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material. Any such destruction shall be certified in\nwriting to the Company by an authorized officer of Receiving Party upon the request of the Company.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its affiliates and Representatives shall continue to\nbe bound by their obligations hereunder.\nNotwithstanding the foregoing, it is understood that information in an intangible or electronic format containing Evaluation Material\nthat cannot through commercially reasonable means be removed, erased or otherwise deleted from archival systems may be so retained, and that\nReceiving Party and its Representatives may retain Evaluation Material solely to the extent required under any applicable law, statute, rule,\nregulation or established internal compliance or document retention policy; provided that Receiving Party and such Representatives shall\ncontinue to be bound by their confidentiality and other obligations hereunder with respect to all such Evaluation Material.\n5. Term.\nNotwithstanding anything to the contrary stated herein, the obligations set forth in this Agreement shall continue until the earlier of\n(i) the second (2nd) anniversary of the date hereof and (ii) consummation of the Potential Transaction.\n6. Nonsolicitation.\nReceiving Party agrees that, for a period of twelve (12) months from the date hereof, neither it nor any of its affiliates, nor any other\nperson acting at its or its affiliates’ direction or on its or its affiliates’ behalf, shall, directly or indirectly, solicit to employ or entice away or offer\nto enter into any\n \nagreement with any person who is an officer, employee at or above corporate vice president, or manager of the Company or any of its\nsubsidiaries; provided, that this section shall not prevent Receiving Party or its affiliates from soliciting or hiring a person identified above (a\n“Covered Person”) (i) if such Covered Person responds to a general solicitation of employment not specifically directed toward the Company or\nany of its subsidiaries or particular employees of the Company or any of its subsidiaries (including general solicitations made through executive\nrecruitment or placement agencies not directed to employees of the Company or any of its subsidiaries), (ii) if such Covered Person approaches\nReceiving Party or any of its affiliates on an unsolicited basis or (iii) following cessation of such Covered Person’s employment with the\nCompany or any of its subsidiaries without any solicitation or encouragement by Receiving Party or any of its Affiliates.\n7. [Reserved]\n8. Gaming Regulations.\nReceiving Party acknowledges that the Company and its subsidiaries conduct a business that is subject to, and exists because of,\nprivileged licenses issued by various governmental authorities. Receiving Party acknowledges that the Company is subject to the provisions of\nthe following acts and any rules, regulations or orders promulgated thereunder: (i) the Nevada Gaming Control Act, (ii) Colorado Limited\nGaming Act and Colorado Code of Regulations, (iii) the applicable gaming laws and regulations of Missouri, (iv) the applicable gaming laws and\nregulations of Iowa or (v) any other act, law, statute, ordinance, rule, regulation or tribal compact governing any casino operation of the\nCompany and its subsidiaries (collectively, the “Acts”), which prohibits a gaming licensee from entering into any contract or agreement with\n(a) a person who is found unsuitable, who is denied a license, or whose license was revoked by the gaming authorities of (1) Nevada,\n(2) Colorado, (3) Missouri, (4) Iowa or (5) any other gaming regulatory board, agency or commission having regulatory authority over the\nCompany and its subsidiaries (each a “Commission”), or (b) any business enterprise under control of such person without the prior approval of\nthe appropriate Commission.\nReceiving Party will use its reasonable efforts to comply with and to cause each of its affiliates and other Representatives to comply\nwith the requirements of all Acts to the extent the Acts apply to Receiving Party.\n9. Trading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who receive any Evaluation Material or Transaction\nInformation will be so advised) that applicable securities laws generally prohibit any person who is aware of material, non-public information\nabout a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n10. No Representations and Warranties; Relationship to Definitive Agreement.\n(a) Receiving Party understands and agrees that neither the Company nor any of its respective affiliates or\nRepresentatives, nor any other person on any of their behalves, has made or is making, and that each of the foregoing hereby disclaims, any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, and Receiving Party\nrepresents that neither it nor any of its affiliates or Representatives has relied, is relying, is entitled to rely on or will rely upon any such\nrepresentation or warranty, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Receiving Party\nagrees that neither the Company nor\n \nany of its respective affiliates or Representatives, nor any other person on any of their behalves, shall have any liability to Receiving Party or any\nof its affiliates or Representatives or any other person relating to or resulting from any use of the Evaluation Material or any errors therein or\nomissions therefrom, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Without limiting the\ngenerality of the preceding two sentences, the Evaluation Material may include statements, estimates and projections provided by the Company\nor its affiliates or Representatives with respect to the anticipated future performance of the Company. Such statements, estimates and projections\nreflect various assumptions made by the Company concerning anticipated results, which assumptions may or may not prove to be correct. No\nrepresentations are made as to the accuracy of such assumptions, statements, estimates or projections. Only those representations or warranties\nwhich are made in a definitive agreement, when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) No contract or agreement providing for any transaction involving the parties shall be deemed to exist unless and until\na definitive agreement has been executed and delivered. Unless and until a definitive agreement regarding a transaction has been executed and\ndelivered, neither party hereto will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this\nAgreement or any other written or oral communication with respect to such transaction, except for the matters specifically agreed to herein.\n(0 The Company reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with\nregard to a transaction between the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or\nno reason. Receiving Party agrees that the Company and its affiliates and Representatives shall be free to conduct any process for any transaction\nin such manner as they or any of them, in their or its sole discretion, shall determine (including negotiating with other parties and entering into a\npreliminary or definitive agreement without prior notice to Receiving Party or any other person), and that any procedures relating to such process\nor transaction may be changed at any time without notice to Receiving Party or any other person.\n11. Contacts and Communications.\nReceiving Party agrees that all contacts and communications by it or its Representatives with the Company or its Representatives\nregarding the Potential Transaction or the Evaluation Material, all requests for additional information, facility tours or management meetings,\nand all discussions or questions regarding procedures with respect to the Potential Transaction, will be submitted or directed only to those\nindividuals as the Company shall instruct in writing. Without the express prior consent of the Company, Receiving Party agrees that it will not,\ndirectly or indirectly, contact or communicate with any officer, employee, director (other than (x) the two (2) directors of the Company currently\nemployed by Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as\nsuch), stockholder (other than Receiving Party’s affiliates), agent, affiliate (other than Receiving Party’s affiliates), customer or business partner\nof the Company regarding Evaluation Material or a Potential Transaction between the parties.\n12. Miscellaneous.\n(a) Receiving Party represents and warrants to the Company that it is acting as a principal in the Potential Transaction and\nnot as part of a group with any third parties (other than affiliates of Receiving Party).\n6\n \n(b) This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without\ngiving effect to the conflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any\nState or Federal court sitting in Clark County in the State of Nevada over any suit, action or proceeding arising out of or relating to this\nAgreement. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered mail addressed to such party\nshall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim\nthat any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Each party agrees that a final\njudgment in any suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be enforced in any\nother courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n(0 Receiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation\nMaterial and that irreparable damage may result to the Company if information contained therein or derived therefrom is disclosed to any person\nexcept as herein provided or is used for any purpose other than the evaluation and negotiation of the Potential Transaction. Receiving Party\nfurther acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or\nany of Receiving Party’s Representatives, and that the Company may seek equitable relief, including injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by Receiving\nParty or any of Receiving Party’s Representatives, but shall be in addition to all of the Company’s other remedies available at law or in equity. In\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a party has\nbreached this Agreement, then such party shall be liable for and pay to the other party the reasonable legal fees and disbursements that the other\nparty has incurred in connection with such litigation, including any appeal therefrom.\n(d) This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other\nparty, and any purported assignment without such consent shall be null and void, provided, that the Company may, without the prior written\nconsent of Receiving Party, assign all or any of its rights hereunder to any person who has acquired all or substantially all of the Company’s\noutstanding equity securities or assets. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and\ntheir respective successors and assigns.\n(e) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision\nof this Agreement may be waived or amended except by the express written consent of the parties. No failure or delay by the parties in exercising\nany right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege hereunder.\n® All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder\nshall be deemed duly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier\nservice, in each case to the intended recipient as set forth below, or the same day of delivery if sent by both facsimile and email with\nconfirmation of receipt:\n \nIf to the Company:\nAffinity Gaming\n3755 Breakthrough Way, Suite 300\nLas Vegas, Nevada 89135\nAttention: Marc Rubinstein, Esq.\nFacsimile: (702) 341-2581\nE-mail: mrubinstein@affinitygaming.com\nWith a copy to:\nMorrison & Foerster LLP\n425 Market Street\nSan Francisco, CA 94105\nAttention: Brandon C. Parris, Esq.\nFacsimile: (415) 276-6352\nE-mail: bparris@mofo.com\nIf to Receiving Party:\nZ Capital Partners L.L.C.\n1330 Avenue of the Americas\nSuite 1100\nNew York, NY 10019\nAttention: Martin Auerbach, Esq.\nFacsimile: (646) 304-0175\nE-mail: mauerbach@zcap.net\nWith a copy to:\nSidley Austin LLP\n1999 Avenue of the Stars, 17t Floor\nLos Angeles, CA 90067\nAttention: Vijay S. Sekhon, Esq.\nFacsimile: (310) 595-9501\nE-mail: vsekhon@sidley.com\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited\ncourier, messenger service, telecopy, telex, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly\ngiven unless and until the party for whom it is intended actually receives it. Any party may change the address to which notices and other\ncommunications hereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(8 For the convenience of the parties, this Agreement may be executed by facsimile or e-mail and in counterparts, each\nof which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(h) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way\nthe meaning or interpretation of this Agreement.\n \n@) If any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or\nin part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by applicable law and such invalid or unenforceable provision or portion shall be replaced by a provision or term that is valid and\nenforceable and that comes closest to expressing the parties’ intention with respect to such invalid or unenforceable provision or portion.\n[Remainder of page intentionally left blank]\n9\n \nExecuted as of the date first above written.\nAFFINITY GAMING\nBy: /s/ Marc H. Rubinstein\nTitle:  Sr. VP, GC & Secretary\nZ CAPITAL PARTNERS L.L.C.\n/s/ James J. Zenni, Jr.\nBy: James J. Zenni, Jr.\nTitle: President and Chief Executive Officer\n[Signature page to Confidentiality Agreement]\n10\n	EX-99.(D)(9) 3 16-19711_1ex99dd9.htm EX-99.(D)(9)\nExhibit (d)(9)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is dated and effective as of November 28, 2015, between Affinity Gaming, a\nNevada corporation (the "Company."), and Z Capital Partners L.L.C., a Delaware limited liability company ("ReceivingI Party.").\nWhereas, Receiving Party has requested the Company to provide certain information in connection with Receiving Party's consideration\nof a potential transaction (the "Potential Transaction") involving the Company and Receiving Party, and the Company desires to protect the\nconfidentiality of the information that it provides and to have Receiving Party take or abstain from taking certain actions in accordance with the\nprovisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1.\nDefinitions.\n(a)\n"Evaluation Material" means any information (whether prepared by the Company or its Representatives (as defined\nherein) or any other person, and regardless of the form of communication, including whether written, oral or otherwise) that is furnished or made\navailable to Receiving Party or any of its Representatives by or on behalf of the Company or any of its Representatives, on or after the date\nhereof, and all notes, analyses, compilations, studies, interpretations, memoranda, reports, projections, forecasts or other documents or materials\n(regardless of the form thereof) prepared by Receiving Party or any of its Representatives which contain or otherwise reproduce or reflect, in\nwhole or in part, any such information; provided, that "Evaluation Material" does not include information which:\n(i)\nis or becomes generally available to the public other than as a result of an act or omission directly or\nindirectly by Receiving Party or any of its Representatives in violation of this Agreement or any other obligation of confidentiality (contractual,\nfiduciary, or otherwise) known by, or that reasonably should have been known by, Receiving Party or any of its Representatives;\n(ii)\nis already in Receiving Party's or any of its Representatives' possession and was not furnished by or on\nbehalf of the Company or its Representatives, provided, that such information is not known by, or reasonably should have been known by,\nReceiving Party or any of its Representatives to be subject to another confidentiality agreement or other obligation of confidentiality (contractual,\nfiduciary, or otherwise);\n(iii) becomes available to Receiving Party or any of its Representatives on a non-confidential basis from a source\nother than the Company or any of its Representatives, provided, that Receiving Party and its Representatives do not have knowledge, and could\nnot reasonably have known, that such information is subject to another confidentiality agreement or other obligation of confidentiality\n(contractual, fiduciary, or otherwise); or\n(iv) is independently developed by Receiving Party or its Representatives without the use of, reference to or\nreliance upon any information furnished to Receiving Party or any of its Representatives by or on behalf of the Company or any of its\nRepresentatives and without any violation of this Agreement or any other obligation of confidentiality (contractual, fiduciary, or otherwise)\nknown by, or that reasonably should have been known by, Receiving Party or any of its Representatives.\n1\n(b) "Representatives" means, with respect to a party, such party and the directors, officers, employees, affiliates,\nmembers, agents, or advisors (including attorneys, accountants, financial advisers, consultants and investment bankers) of such party and, in the\ncase of Receiving Party, any debt financing source that at the date hereof is listed on Exhibit A or after the date hereof is specifically approved in\nwriting in advance by the Company for Receiving Party in connection with the Potential Transaction; provided that, for the purposes of this\nAgreement, no such person shall be deemed a "Representative" of Receiving Party, nor shall Receiving Party have any liability for such person,\nunless such person has been furnished with Evaluation Material or Transaction Information or is acting at the direction of Receiving Party or any\naffiliate or Representative of Receiving Party.\n(c)\nThe term "person" means any corporation, company, partnership, joint venture, group, limited liability company,\nor\nother entity or individual; the term "affiliate" has the meaning set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as amended\n(such Act, as amended, being referred to herein as the "Exchange Act"), provided, that the Company, and persons controlled by the Company,\nshall be deemed not to be an affiliate of Receiving Party; and the term "including" and correlative terms shall be deemed to be followed by\n"without limitation".\n2.\nUse and Disclosure of Evaluation Material.\n(a)\nReceiving Party agrees that it shall, and that it shall use commercially reasonable efforts to cause its Representatives\nto:\n(i)\nuse\nthe\nEvaluation Material solely for the purpose of evaluating and negotiating the Potential Transaction;\nand\n(ii)\nexcept as provided in Section 3 hereof, keep the Evaluation Material confidential and not disclose any\nEvaluation Material, directly or indirectly, to any other person;\nprovided, that the foregoing provisions of this sub-section (a) shall not prohibit the two (2) officers of Receiving Party who as of the date hereof\nare directors of the Company from using Evaluation Material received by them in their capacities as directors of the Company as and to the\nextent required by their fiduciary duties as directors of the Company under applicable law.\nNotwithstanding the foregoing provisions of this sub-section (a), Receiving Party may disclose Evaluation Material to Receiving Party's\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating the Potential Transaction, provided, that\nReceiving Party's Representatives prior to any such disclosure are informed of the confidential nature of such Evaluation Material and are\ndirected (i) to use such information solely for the purpose of evaluating and negotiating the Potential Transaction and (ii) to maintain the\nconfidentiality of such Evaluation Material.\n(b)\nExcept as provided in Section 3 hereof, the Company and Receiving Party agree that neither the Company, Receiving\nParty nor any of their respective Representatives shall disclose to any person (other than their respective Representatives to the extent permitted\nhereby) (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been or may be requested, received or made available to\nit,\n(iii)\nthat\ninvestigations,\ndiscussions\nor\nnegotiations\nare\ntaking\n(or\nhave\ntaken)\nplace\nconcerning,\nor\nthat\nthe\nCompany\nand\nReceiving\nParty\nare\nconsidering, a possible transaction, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions\n(collectively, the "Transaction Information"); provided, that notwithstanding the foregoing, the Company will not be restricted in disclosing\nany\nTransaction Information to the Company's stockholders, debtholders or other stakeholders, or have any restrictions under this Agreement with\nrespect to any Transaction Information\n2\nthat is or becomes generally available to the public other than as a result of an act or omission directly or indirectly by the Company or any of its\nRepresentatives in violation of this Section 2(b).\n(c)\nReceiving Party shall be directly responsible and liable to the Company for any use or disclosure by any of Receiving\nParty's Representatives of any Evaluation Material or Transaction Information which, if done by Receiving Party itself, would be a breach of this\nAgreement, it being understood that such responsibility and liability shall be in addition to and not by way of limitation of any right or remedy\nthe Company may have against Receiving Party's Representatives with respect to such breach. Receiving Party agrees, at its sole expense, to take\ncommercially reasonable measures to restrain its Representatives from making or allowing to be made prohibited or unauthorized uses or\ndisclosures of Evaluation Material and Transaction Information under this Agreement.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-clien privilege, work product doctrine or other applicable privilege. All Evaluation Material that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\n(e)\nAll Evaluation Material shall remain the property of the Company and/or its applicable subsidiary. No license or,\nexcept as provided in Section 2(a) hereof, right to use or other similar rights with respect to the Evaluation Material are granted to Receiving\nParty or any of its Representatives, by implication or otherwise.\n(f)\nReceiving Party represents and warrants that neither it nor any of its Representatives has entered into, and agrees\nthat\nwithout the Company's prior written consent none of Receiving Party and its Representatives will enter into, any discussions or any agreement,\nunderstanding or arrangement (whether or not binding), directly or indirectly, with, and will not otherwise directly or indirectly approach, (i) any\nperson with respect to or relating to participation by such person or others (whether as club participant, principal, co-investor, co-bidder,\nfinancing source or otherwise) in any transaction with or relating to the Company (whether before or after the closing of any transaction) or any\nof\nits\nsubsidiaries\nor\n(ii)\nany\nstockholder,\ndirector\n(other\nthan\n(x)\nthe\ntwo\n(2)\ndirectors\nof\nthe\nCompany\nwho\nas\nof\nthe\ndate\nhereof\nare\nalso\nofficers\nof Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as such), officer\nor other employee of the Company or any of its subsidiaries with respect to or relating to a transaction with the Company or any of its businesses\nor operations from and after any such transaction, including as to any equity "rollover" or any employment with or consulting services to the\nCompany or any affiliate thereof.\n3.\nLegally Required Disclosure.\nIf the Company, Receiving Party or any of their respective Representatives is requested or required (by oral questions, interrogatories,\nrequests\nfor\ninformation\nor\ndocuments\nin\nlegal\nproceedings,\nsubpoena,\ncivil\ninvestigative\ndemand\nor\nother\nsimilar\nprocess)\nto\ndisclose\nany\nEvaluation Material or Transaction Information, such party shall, to the extent permitted by law, promptly provide the other party with written\nnotice of any such request or requirement (and the terms and conditions thereof). If the other party seeks a protective order or other remedy,\nthe\nparty subject to such request or requirement (the "recipient") shall, at the other party's expense, provide such cooperation as the other party shall\n3\nreasonably request. If, in the absence of a protective order or other remedy or the receipt by the recipient of a waiver from the other party, the\nrecipient or any of its Representatives is nonetheless required to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity, then the recipient or such Representative may, without liability hereunder, disclose to such tribunal or other entity that portion (but only\nthat portion) of the Evaluation Material or Transaction Information that is legally required to be disclosed, provided, that recipient and such\nRepresentative shall exercise commercially reasonable efforts to minimize the disclosure of Evaluation Material or Transaction Information and\nto preserve the confidentiality thereof, including by seeking, at the other party's expense, to obtain a protective order or other assurance that\nconfidential treatment will be accorded to such Evaluation Material or Transaction Information. Notwithstanding the foregoing, (a) the recipient\nand its Representatives shall not be required to notify the other party where disclosure is in connection with a routine audit or examination by\na\nregulatory authority, bank examiner or auditor that does not explicitly reference the other party, the Transaction or this Agreement and (b) the\nrecipient and its applicable affiliates shall not be required to notify the other party, and shall be permitted to publicly disclose this Agreement,\nthe\nexclusivity agreement entered into between the Company and the Receiving Party dated as of the date hereof (and any amendment or termination\nhereof or thereof), any Confidential Information or Transaction Information to the extent required in order to comply with the rules and\nregulations of the U.S. Securities and Exchange Commission or the federal securities laws.\n4.\nReturn of Evaluation Material.\nAt any time upon the written request of the Company (in its sole discretion and for any or no reason), Receiving Party shall promptly\n(and in any event within ten (10) business days after such request) return to the Company (or, at Receiving Party's option, destroy) all Evaluation\nMaterial (and all copies thereof) furnished to Receiving Party or its Representatives by or on behalf of the Company or its Representatives, or\nprepared by Receiving Party or any of its Representatives, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material. Any such destruction shall be certified in\nwriting to the Company by an authorized officer of Receiving Party upon the request of the Company.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its affiliates and Representatives shall continue to\nbe bound by their obligations hereunder.\nNotwithstanding the foregoing, it is understood that information in an intangible or electronic format containing Evaluation Material\nthat cannot through commercially reasonable means be removed, erased or otherwise deleted from archival systems may be so retained, and that\nReceiving Party and its Representatives may retain Evaluation Material solely to the extent required under any applicable law, statute, rule,\nregulation or established internal compliance or document retention policy; provided that Receiving Party and such Representatives shall\ncontinue to be bound by their confidentiality and other obligations hereunder with respect to all such Evaluation Material.\n5.\nTerm.\nNotwithstanding anything to the contrary stated herein, the obligations set forth in this Agreement shall continue until the earlier of\n(i) the second (2nd) anniversary of the date hereof and (ii) consummation of the Potential Transaction.\n6.\nNonsolicitation.\nReceiving Party agrees that, for a period of twelve (12) months from the date hereof, neither it nor any of its affiliates, nor any other\nperson acting at its or its affiliates' direction or on its or its affiliates' behalf, shall, directly or indirectly, solicit to employ or entice away or offer\nto enter into any\n4\nagreement with any person who is an officer, employee at or above corporate vice president, or manager of the Company or any of its\nsubsidiaries; provided, that this section shall not prevent Receiving Party or its affiliates from soliciting or hiring a person identified above\n(a\n"Covered Person") (i) if such Covered Person responds to a general solicitation of employment not specifically directed toward the Company\nor\nany of its subsidiaries or particular employees of the Company or any of its subsidiaries (including general solicitations made through executive\nrecruitment or placement agencies not directed to employees of the Company or any of its subsidiaries), (ii) if such Covered Person approaches\nReceiving Party or any of its affiliates on an unsolicited basis or (iii) following cessation of such Covered Person's employment with the\nCompany or any of its subsidiaries without any solicitation or encouragement by Receiving Party or any of its Affiliates.\n7.\n[Reserved]\n8.\nGaming Regulations\nReceiving Party acknowledges that the Company and its subsidiaries conduct a business that is subject to, and exists because of,\nprivileged licenses issued by various governmental authorities. Receiving Party acknowledges that the Company is subject to the provisions\nof\nthe following acts and any rules, regulations or orders promulgated thereunder: (i) the Nevada Gaming Control Act, (ii) Colorado Limited\nGaming Act and Colorado Code of Regulations, (iii) the applicable gaming laws and regulations of Missouri, (iv) the applicable gaming laws and\nregulations of Iowa or (v) any other act, law, statute, ordinance, rule, regulation or tribal compact governing any casino operation of the\nCompany and its subsidiaries (collectively, the "Acts"), which prohibits a gaming licensee from entering into any contract or agreement with\n(a) a person who is found unsuitable, who is denied a license, or whose license was revoked by the gaming authorities of (1) Nevada,\n(2) Colorado, (3) Missouri, (4) Iowa or (5) any other gaming regulatory board, agency or commission having regulatory authority over the\nCompany and its subsidiaries (each a "Commission"), or (b) any business enterprise under control of such person without the prior approval of\nthe appropriate Commission.\nReceiving Party will use its reasonable efforts to comply with and to cause each of its affiliates and other Representatives to comply\nwith the requirements of all Acts to the extent the Acts apply to Receiving Party.\n9.\nTrading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who receive any Evaluation Material or Transaction\nInformation will be so advised) that applicable securities laws generally prohibit any person who is aware of material, non-public information\nabout a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n10.\nNo Representations and Warranties; Relationship to Definitive Agreement.\n(a)\nReceiving Party understands and agrees that neither the Company nor any of its respective affiliates or\nRepresentatives, nor any other person on any of their behalves, has made or is making, and that each of the foregoing hereby disclaims, any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, and Receiving Party\nrepresents that neither it nor any of its affiliates or Representatives has relied, is relying, is entitled to rely on or will rely upon any such\nrepresentation or warranty, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Receiving Party\nagrees that neither the Company nor\n5\nany of its respective affiliates or Representatives, nor any other person on any of their behalves, shall have any liability to Receiving Party or any\nof\nits\naffiliates or Representatives or any other person relating to or resulting from any use of the Evaluation Material or any errors therein or\nomissions therefrom, in each case except as may be set forth in any definitive agreement with respect to a Transaction Without limiting the\ngenerality of the preceding two sentences, the Evaluation Material may include statements, estimates and projections provided by the Company\nor\nits\naffiliates or Representatives with respect to the anticipated future performance of the Company. Such statements, estimates and projections\nreflect various assumptions made by the Company concerning anticipated results, which assumptions may or may not prove to be correct. No\nrepresentations are made as to the accuracy of such assumptions, statements, estimates or projections. Only those representations or warranties\nwhich\nare made in a definitive agreement, when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this Agreement, the term "definitive agreement" does not include any executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b)\nNo contract or agreement providing for any transaction involving the parties shall be deemed to exist unless and until\na definitive agreement has been executed and delivered. Unless and until a definitive agreement regarding a transaction has been executed and\ndelivered, neither party hereto will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this\nAgreement or any other written or oral communication with respect to such transaction, except for the matters specifically agreed to herein.\n(c)\nThe Company reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with\nregard to a transaction between the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or\nno reason. Receiving Party agrees that the Company and its affiliates and Representatives shall be free to conduct any process for any transaction\nin such manner as they or any of them, in their or its sole discretion, shall determine (including negotiating with other parties and entering into a\npreliminary or definitive agreement without prior notice to Receiving Party or any other person), and that any procedures relating to such process\nor transaction may be changed at any time without notice to Receiving Party or any other person.\n11.\nContacts and Communications.\nReceiving Party agrees that all contacts and communications by it or its Representatives with the Company or its Representatives\nregarding the Potential Transaction or the Evaluation Material, all requests for additional information, facility tours or management meetings,\nand all discussions or questions regarding procedures with respect to the Potential Transaction, will be submitted or directed only to those\nindividuals as the Company shall instruct in writing. Without the express prior consent of the Company, Receiving Party agrees that it will not,\ndirectly or indirectly, contact or communicate with any officer, employee, director (other than (x) the two (2) directors of the Company currently\nemployed by Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as\nsuch), stockholder (other than Receiving Party's affiliates), agent, affiliate (other than Receiving Party's affiliates), customer or business partner\nof the Company regarding Evaluation Material or a Potential Transaction between the parties.\n12.\nMiscellaneous.\n(a)\nReceiving Party represents and warrants to the Company that it is acting as a principal in the Potential Transaction and\nnot as part of a group with any third parties (other than affiliates of Receiving Party).\n6\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without\ngiving effect to the conflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any\nState or Federal court sitting in Clark County in the State of Nevada over any suit, action or proceeding arising out of or relating to this\nAgreement. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered mail addressed to such party\nshall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim\nthat any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Each party agrees that a final\njudgment in any suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be enforced in any\nother courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n(c)\nReceiving Party recognizes and acknowledges the competitive value and confidentia nature of the Evaluation\nMaterial and that irreparable damage may result to the Company if information contained therein or derived therefrom is disclosed to any person\nexcept as herein provided or is used for any purpose other than the evaluation and negotiation of the Potential Transaction. Receiving Party\nfurther\nacknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or\nany of Receiving Party's Representatives, and that the Company may seek equitable relief, including injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by Receiving\nParty\nor\nany\nof\nReceiving\nParty's\nRepresentatives,\nbut\nshall\nbe\nin\naddition\nto\nall\nof\nthe\nCompany's\nother\nremedies\navailable\nat\nlaw\nor\nin\nequity.\nIn\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a party has\nbreached this Agreement, then such party shall be liable for and pay to the other party the reasonable legal fees and disbursements that the other\nparty has incurred in connection with such litigation, including any appeal therefrom.\n(d)\nThis Agreement may not be assigned in whole or in part by either party without the prior written consent of the other\nparty, and any purported assignment without such consent shall be null and void, provided, that the Company may, without the prior written\nconsent of Receiving Party, assign all or any of its rights hereunder to any person who has acquired all or substantially all of the Company's\noutstanding equity securities or assets. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and\ntheir respective successors and assigns.\n(e)\nThis Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision\nof this Agreement may be waived or amended except by the express written consent of the parties. No failure or delay by the parties in exercising\nany right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege hereunder.\n(f) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder\nshall be deemed duly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier\nservice, in each case to the intended recipient as set forth below, or the same day of delivery if sent by both facsimile and email with\nconfirmation of receipt:\n7\nIf to the Company:\nAffinity Gaming\n3755 Breakthrough Way, Suite 300\nLas Vegas, Nevada 89135\nAttention: Marc Rubinstein, Esq.\nFacsimile: (702) 341-2581\nE-mail: :mrubinstein@affinitygaming.com\nWith a copy to:\nMorrison & Foerster LLP\n425 Market Street\nSan Francisco, CA 94105\nAttention: Brandon C. Parris, Esq.\nFacsimile: (415) 276-6352\nE-mail: bparris@mofo.com\nIf to Receiving Party:\nZ Capital Partners L.L.C.\n1330 Avenue of the Americas\nSuite 1100\nNew York, NY 10019\nAttention: Martin Auerbach, Esq.\nFacsimile: (646) 304-0175\nE-mail: mauerbach@zcap.net\nWith a copy to:\nSidley Austin LLP\n1999 Avenue of the Stars, 17th Floor\nLos Angeles, CA 90067\nAttention: Vijay S. Sekhon, Esq.\nFacsimile: (310) 595-9501\nE-mail: vsekhon@sidley.com\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited\ncourier, messenger service, telecopy, telex, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly\ngiven unless and until the party for whom it is intended actually receives it. Any party may change the address to which notices and other\ncommunications hereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(g)\nFor the convenience of the parties, this Agreement may be executed by facsimile or e-mail and in counterparts, each\nof which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(h)\nThe section headings contained in this Agreement are inserted for convenience only and shall not affect in any way\nthe meaning or interpretation of this Agreement.\n8\n(i)\nIf any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or\nin\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by applicable law and such invalid or unenforceable provision or portion shall be replaced by a provision or term that is valid and\nenforceable and that comes closest to expressing the parties' intention with respect to such invalid or unenforceable provision or portion.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nAFFINITY GAMING\nBy:\n/s/ Marc H. Rubinstein\nTitle: Sr. VP, GC & Secretary\nZ CAPITAL PARTNERS L.L.C.\n/s/ James J. Zenni, Jr.\nBy:\nJames J. Zenni, Jr.\nTitle:\nPresident and Chief Executive Officer\n[Signature page to Confidentiality Agreement]\n10	EX-99.(D)(9) 3 a16-19711_1ex99dd9.htm EX-99.(D)(9)\nExhibit (d)(9)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated and effective as of November 28, 2015, between Affinity Gaming, a\nNevada corporation (the “Company”), and Z Capital Partners L.L.C ., a Delaware limited liability company (“Receiving Party”).\nWhereas, Receiving Party has requested the Company to provide certain information in connection with Receiving Party’s consideration\nof a potential transaction (the “Potential Transaction”) involving the Company and Receiving Party, and the Company desires to protect the\nconfidentiality of the information that it provides and to have Receiving Party take or abstain from taking certain actions in accordance with the\nprovisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1.\nDefinitions.\n(a)\n“Evaluation Material” means any information (whether prepared by the Company or its Representatives (as defined\nherein) or any other person, and regardless of the form of communication, including whether written, oral or otherwise) that is furnished or made\navailable to Receiving Party or any of its Representatives by or on behalf of the Company or any of its Representatives, on or after the date\nhereof, and all notes, analyses, compilations, studies, interpretations, memoranda, reports, projections, forecasts or other documents or materials\n(regardless of the form thereof) prepared by Receiving Party or any of its Representatives which contain or otherwise reproduce or reflect, in\nwhole or in part, any such information; provided, that “Evaluation Material” does not include information which:\n(i)\nis or becomes generally available to the public other than as a result of an act or omission directly or\nindirectly by Receiving Party or any of its Representatives in violation of this Agreement or any other obligation of confidentiality (contractual,\nfiduciary, or otherwise) known by, or that reasonably should have been known by, Receiving Party or any of its Representatives;\n(ii)\nis already in Receiving Party’s or any of its Representatives’ possession and was not furnished by or on\nbehalf of the Company or its Representatives, provided, that such information is not known by, or reasonably should have been known by,\nReceiving Party or any of its Representatives to be subject to another confidentiality agreement or other obligation of confidentiality (contractual,\nfiduciary, or otherwise);\n(iii) becomes available to Receiving Party or any of its Representatives on a non-confidential basis from a source\nother than the Company or any of its Representatives, provided, that Receiving Party and its Representatives do not have knowledge, and could\nnot reasonably have known, that such information is subject to another confidentiality agreement or other obligation of confidentiality\n(contractual, fiduciary, or otherwise); or\n(iv) is independently developed by Receiving Party or its Representatives without the use of, reference to or\nreliance upon any information furnished to Receiving Party or any of its Representatives by or on behalf of the Company or any of its\nRepresentatives and without any violation of this Agreement or any other obligation of confidentiality (contractual, fiduciary, or otherwise)\nknown by, or that reasonably should have been known by, Receiving Party or any of its Representatives.\n1\n(b)\n“Representatives” means, with respect to a party, such party and the directors, officers, employees, affiliates,\nmembers, agents, or advisors (including attorneys, accountants, financial advisers, consultants and investment bankers) of such party and, in the\ncase of Receiving Party, any debt financing source that at the date hereof is listed on Exhibit A or after the date hereof is specifically approved in\nwriting in advance by the Company for Receiving Party in connection with the Potential Transaction; provided that, for the purposes of this\nAgreement, no such person shall be deemed a “Representative” of Receiving Party, nor shall Receiving Party have any liability for such person,\nunless such person has been furnished with Evaluation Material or Transaction Information or is acting at the direction of Receiving Party or any\naffiliate or Representative of Receiving Party.\n(c)\nThe term “person” means any corporation, company, partnership, joint venture, group, limited liability company, or\nother entity or individual; the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as amended\n(such Act, as amended, being referred to herein as the “Exchange Act”), provided, that the Company, and persons controlled by the Company,\nshall be deemed not to be an affiliate of Receiving Party; and the term “including” and correlative terms shall be deemed to be followed by\n“without limitation”.\n2.\nUse and Disclosure of Evaluation Material.\n(a)\nReceiving Party agrees that it shall, and that it shall use commercially reasonable efforts to cause its Representatives\nto:\n(i)\nuse the Evaluation Material solely for the purpose of evaluating and negotiating the Potential Transaction;\nand\n(ii)\nexcept as provided in Section 3 hereof, keep the Evaluation Material confidential and not disclose any\nEvaluation Material, directly or indirectly, to any other person;\nprovided, that the foregoing provisions of this sub-section (a) shall not prohibit the two (2) officers of Receiving Party who as of the date hereof\nare directors of the Company from using Evaluation Material received by them in their capacities as directors of the Company as and to the\nextent required by their fiduciary duties as directors of the Company under applicable law.\nNotwithstanding the foregoing provisions of this sub-section (a), Receiving Party may disclose Evaluation Material to Receiving Party’s\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating the Potential Transaction, provided, that\nReceiving Party’s Representatives prior to any such disclosure are informed of the confidential nature of such Evaluation Material and are\ndirected (i) to use such information solely for the purpose of evaluating and negotiating the Potential Transaction and (ii) to maintain the\nconfidentiality of such Evaluation Material.\n(b)\nExcept as provided in Section 3 hereof, the Company and Receiving Party agree that neither the Company, Receiving\nParty nor any of their respective Representatives shall disclose to any person (other than their respective Representatives to the extent permitted\nhereby) (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been or may be requested, received or made available to it,\n(iii) that investigations, discussions or negotiations are taking (or have taken) place concerning, or that the Company and Receiving Party are\nconsidering, a possible transaction, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions\n(collectively, the “Transaction Information”); provided, that notwithstanding the foregoing, the Company will not be restricted in disclosing any\nTransaction Information to the Company’s stockholders, debtholders or other stakeholders, or have any restrictions under this Agreement with\nrespect to any Transaction Information\n2\nthat is or becomes generally available to the public other than as a result of an act or omission directly or indirectly by the Company or any of its\nRepresentatives in violation of this Section 2(b).\n(c)\nReceiving Party shall be directly responsible and liable to the Company for any use or disclosure by any of Receiving\nParty’s Representatives of any Evaluation Material or Transaction Information which, if done by Receiving Party itself, would be a breach of this\nAgreement, it being understood that such responsibility and liability shall be in addition to and not by way of limitation of any right or remedy\nthe Company may have against Receiving Party’s Representatives with respect to such breach. Receiving Party agrees, at its sole expense, to take\ncommercially reasonable measures to restrain its Representatives from making or allowing to be made prohibited or unauthorized uses or\ndisclosures of Evaluation Material and Transaction Information under this Agreement.\n(d)\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\n(e)\nAll Evaluation Material shall remain the property of the Company and/or its applicable subsidiary. No license or,\nexcept as provided in Section 2(a) hereof, right to use or other similar rights with respect to the Evaluation Material are granted to Receiving\nParty or any of its Representatives, by implication or otherwise.\n(f)\nReceiving Party represents and warrants that neither it nor any of its Representatives has entered into, and agrees that\nwithout the Company’s prior written consent none of Receiving Party and its Representatives will enter into, any discussions or any agreement,\nunderstanding or arrangement (whether or not binding), directly or indirectly, with, and will not otherwise directly or indirectly approach, (i) any\nperson with respect to or relating to participation by such person or others (whether as club participant, principal, co-investor, co-bidder,\nfinancing source or otherwise) in any transaction with or relating to the Company (whether before or after the closing of any transaction) or any\nof its subsidiaries or (ii) any stockholder, director (other than (x) the two (2) directors of the Company who as of the date hereof are also officers\nof Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as such), officer\nor other employee of the Company or any of its subsidiaries with respect to or relating to a transaction with the Company or any of its businesses\nor operations from and after any such transaction, including as to any equity “rollover” or any employment with or consulting services to the\nCompany or any affiliate thereof.\n3.\nLegally Required Disclosure.\nIf the Company, Receiving Party or any of their respective Representatives is requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any\nEvaluation Material or Transaction Information, such party shall, to the extent permitted by law, promptly provide the other party with written\nnotice of any such request or requirement (and the terms and conditions thereof). If the other party seeks a protective order or other remedy, the\nparty subject to such request or requirement (the “recipient”) shall, at the other party’s expense, provide such cooperation as the other party shall\n3\nreasonably request. If, in the absence of a protective order or other remedy or the receipt by the recipient of a waiver from the other party, the\nrecipient or any of its Representatives is nonetheless required to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity, then the recipient or such Representative may, without liability hereunder, disclose to such tribunal or other entity that portion (but only\nthat portion) of the Evaluation Material or Transaction Information that is legally required to be disclosed, provided, that recipient and such\nRepresentative shall exercise commercially reasonable efforts to minimize the disclosure of Evaluation Material or Transaction Information and\nto preserve the confidentiality thereof, including by seeking, at the other party’s expense, to obtain a protective order or other assurance that\nconfidential treatment will be accorded to such Evaluation Material or Transaction Information. Notwithstanding the foregoing, (a) the recipient\nand its Representatives shall not be required to notify the other party where disclosure is in connection with a routine audit or examination by a\nregulatory authority, bank examiner or auditor that does not explicitly reference the other party, the Transaction or this Agreement and (b) the\nrecipient and its applicable affiliates shall not be required to notify the other party, and shall be permitted to publicly disclose this Agreement, the\nexclusivity agreement entered into between the Company and the Receiving Party dated as of the date hereof (and any amendment or termination\nhereof or thereof), any Confidential Information or Transaction Information to the extent required in order to comply with the rules and\nregulations of the U.S. Securities and Exchange Commission or the federal securities laws.\n4.\nReturn of Evaluation Material.\nAt any time upon the written request of the Company (in its sole discretion and for any or no reason), Receiving Party shall promptly\n(and in any event within ten (10) business days after such request) return to the Company (or, at Receiving Party’s option, destroy) all Evaluation\nMaterial (and all copies thereof) furnished to Receiving Party or its Representatives by or on behalf of the Company or its Representatives, or\nprepared by Receiving Party or any of its Representatives, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material. Any such destruction shall be certified in\nwriting to the Company by an authorized officer of Receiving Party upon the request of the Company.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its affiliates and Representatives shall continue to\nbe bound by their obligations hereunder.\nNotwithstanding the foregoing, it is understood that information in an intangible or electronic format containing Evaluation Material\nthat cannot through commercially reasonable means be removed, erased or otherwise deleted from archival systems may be so retained, and that\nReceiving Party and its Representatives may retain Evaluation Material solely to the extent required under any applicable law, statute, rule,\nregulation or established internal compliance or document retention policy; provided that Receiving Party and such Representatives shall\ncontinue to be bound by their confidentiality and other obligations hereunder with respect to all such Evaluation Material.\n5.\nTerm.\nNotwithstanding anything to the contrary stated herein, the obligations set forth in this Agreement shall continue until the earlier of\n(i) the second (2nd) anniversary of the date hereof and (ii) consummation of the Potential Transaction.\n6.\nNonsolicitation.\nReceiving Party agrees that, for a period of twelve (12) months from the date hereof, neither it nor any of its affiliates, nor any other\nperson acting at its or its affiliates’ direction or on its or its affiliates’ behalf, shall, directly or indirectly, solicit to employ or entice away or offer\nto enter into any\n4\nagreement with any person who is an officer, employee at or above corporate vice president, or manager of the Company or any of its\nsubsidiaries; provided, that this section shall not prevent Receiving Party or its affiliates from soliciting or hiring a person identified above (a\n“Covered Person”) (i) if such Covered Person responds to a general solicitation of employment not specifically directed toward the Company or\nany of its subsidiaries or particular employees of the Company or any of its subsidiaries (including general solicitations made through executive\nrecruitment or placement agencies not directed to employees of the Company or any of its subsidiaries), (ii) if such Covered Person approaches\nReceiving Party or any of its affiliates on an unsolicited basis or (iii) following cessation of such Covered Person’s employment with the\nCompany or any of its subsidiaries without any solicitation or encouragement by Receiving Party or any of its Affiliates.\n7.\n[Reserved]\n8.\nGaming Regulations.\nReceiving Party acknowledges that the Company and its subsidiaries conduct a business that is subject to, and exists because of,\nprivileged licenses issued by various governmental authorities. Receiving Party acknowledges that the Company is subject to the provisions of\nthe following acts and any rules, regulations or orders promulgated thereunder: (i) the Nevada Gaming Control Act, (ii) Colorado Limited\nGaming Act and Colorado Code of Regulations, (iii) the applicable gaming laws and regulations of Missouri, (iv) the applicable gaming laws and\nregulations of Iowa or (v) any other act, law, statute, ordinance, rule, regulation or tribal compact governing any casino operation of the\nCompany and its subsidiaries (collectively, the “Acts”), which prohibits a gaming licensee from entering into any contract or agreement with\n(a) a person who is found unsuitable, who is denied a license, or whose license was revoked by the gaming authorities of (1) Nevada,\n(2) Colorado, (3) Missouri, (4) Iowa or (5) any other gaming regulatory board, agency or commission having regulatory authority over the\nCompany and its subsidiaries (each a “Commission”), or (b) any business enterprise under control of such person without the prior approval of\nthe appropriate Commission.\nReceiving Party will use its reasonable efforts to comply with and to cause each of its affiliates and other Representatives to comply\nwith the requirements of all Acts to the extent the Acts apply to Receiving Party.\n9.\nTrading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who receive any Evaluation Material or Transaction\nInformation will be so advised) that applicable securities laws generally prohibit any person who is aware of material, non-public information\nabout a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n10.\nNo Representations and Warranties; Relationship to Definitive Agreement.\n(a)\nReceiving Party understands and agrees that neither the Company nor any of its respective affiliates or\nRepresentatives, nor any other person on any of their behalves, has made or is making, and that each of the foregoing hereby disclaims, any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, and Receiving Party\nrepresents that neither it nor any of its affiliates or Representatives has relied, is relying, is entitled to rely on or will rely upon any such\nrepresentation or warranty, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Receiving Party\nagrees that neither the Company nor\n5\nany of its respective affiliates or Representatives, nor any other person on any of their behalves, shall have any liability to Receiving Party or any\nof its affiliates or Representatives or any other person relating to or resulting from any use of the Evaluation Material or any errors therein or\nomissions therefrom, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Without limiting the\ngenerality of the preceding two sentences, the Evaluation Material may include statements, estimates and projections provided by the Company\nor its affiliates or Representatives with respect to the anticipated future performance of the Company. Such statements, estimates and projections\nreflect various assumptions made by the Company concerning anticipated results, which assumptions may or may not prove to be correct. No\nrepresentations are made as to the accuracy of such assumptions, statements, estimates or projections. Only those representations or warranties\nwhich are made in a definitive agreement, when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b)\nNo contract or agreement providing for any transaction involving the parties shall be deemed to exist unless and until\na definitive agreement has been executed and delivered. Unless and until a definitive agreement regarding a transaction has been executed and\ndelivered, neither party hereto will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this\nAgreement or any other written or oral communication with respect to such transaction, except for the matters specifically agreed to herein.\n(c)\nThe Company reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with\nregard to a transaction between the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or\nno reason. Receiving Party agrees that the Company and its affiliates and Representatives shall be free to conduct any process for any transaction\nin such manner as they or any of them, in their or its sole discretion, shall determine (including negotiating with other parties and entering into a\npreliminary or definitive agreement without prior notice to Receiving Party or any other person), and that any procedures relating to such process\nor transaction may be changed at any time without notice to Receiving Party or any other person.\n11.\nContacts and Communications.\nReceiving Party agrees that all contacts and communications by it or its Representatives with the Company or its Representatives\nregarding the Potential Transaction or the Evaluation Material, all requests for additional information, facility tours or management meetings,\nand all discussions or questions regarding procedures with respect to the Potential Transaction, will be submitted or directed only to those\nindividuals as the Company shall instruct in writing. Without the express prior consent of the Company, Receiving Party agrees that it will not,\ndirectly or indirectly, contact or communicate with any officer, employee, director (other than (x) the two (2) directors of the Company currently\nemployed by Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as\nsuch), stockholder (other than Receiving Party’s affiliates), agent, affiliate (other than Receiving Party’s affiliates), customer or business partner\nof the Company regarding Evaluation Material or a Potential Transaction between the parties.\n12.\nMiscellaneous.\n(a)\nReceiving Party represents and warrants to the Company that it is acting as a principal in the Potential Transaction and\nnot as part of a group with any third parties (other than affiliates of Receiving Party).\n6\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without\ngiving effect to the conflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any\nState or Federal court sitting in Clark County in the State of Nevada over any suit, action or proceeding arising out of or relating to this\nAgreement. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered mail addressed to such party\nshall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim\nthat any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Each party agrees that a final\njudgment in any suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be enforced in any\nother courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n(c)\nReceiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation\nMaterial and that irreparable damage may result to the Company if information contained therein or derived therefrom is disclosed to any person\nexcept as herein provided or is used for any purpose other than the evaluation and negotiation of the Potential Transaction. Receiving Party\nfurther acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or\nany of Receiving Party’s Representatives, and that the Company may seek equitable relief, including injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by Receiving\nParty or any of Receiving Party’s Representatives, but shall be in addition to all of the Company’s other remedies available at law or in equity. In\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a party has\nbreached this Agreement, then such party shall be liable for and pay to the other party the reasonable legal fees and disbursements that the other\nparty has incurred in connection with such litigation, including any appeal therefrom.\n(d)\nThis Agreement may not be assigned in whole or in part by either party without the prior written consent of the other\nparty, and any purported assignment without such consent shall be null and void, provided, that the Company may, without the prior written\nconsent of Receiving Party, assign all or any of its rights hereunder to any person who has acquired all or substantially all of the Company’s\noutstanding equity securities or assets. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and\ntheir respective successors and assigns.\n(e)\nThis Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision\nof this Agreement may be waived or amended except by the express written consent of the parties. No failure or delay by the parties in exercising\nany right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege hereunder.\n(f)\nAll notices and other communications hereunder shall be in writing. Any notice or other communication hereunder\nshall be deemed duly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier\nservice, in each case to the intended recipient as set forth below, or the same day of delivery if sent by both facsimile and email with\nconfirmation of receipt:\n7\nIf to the Company:\nAffinity Gaming\n3755 Breakthrough Way, Suite 300\nLas Vegas, Nevada 89135\nAttention: Marc Rubinstein, Esq.\nFacsimile: (702) 341-2581\nE-mail: mrubinstein@affinitygaming.com\nWith a copy to:\nMorrison & Foerster LLP\n425 Market Street\nSan Francisco, CA 94105\nAttention: Brandon C. Parris, Esq.\nFacsimile: (415) 276-6352\nE-mail: bparris@mofo.com\nIf to Receiving Party:\nZ Capital Partners L.L.C .\n1330 Avenue of the Americas\nSuite 1100\nNew York, NY 10019\nAttention: Martin Auerbach, Esq.\nFacsimile: (646) 304-0175\nE-mail: mauerbach@zcap.net\nWith a copy to:\nSidley Austin LLP\n1999 Avenue of the Stars, 17 Floor\nLos Angeles, CA 90067\nAttention: Vijay S. Sekhon, Esq.\nFacsimile: (310) 595-9501\nE-mail: vsekhon@sidley.com\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited\ncourier, messenger service, telecopy, telex, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly\ngiven unless and until the party for whom it is intended actually receives it. Any party may change the address to which notices and other\ncommunications hereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(g)\nFor the convenience of the parties, this Agreement may be executed by facsimile or e-mail and in counterparts, each\nof which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(h)\nThe section headings contained in this Agreement are inserted for convenience only and shall not affect in any way\nthe meaning or interpretation of this Agreement.\n8\n(i)\nIf any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or\nin part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by applicable law and such invalid or unenforceable provision or portion shall be replaced by a provision or term that is valid and\nenforceable and that comes closest to expressing the parties’ intention with respect to such invalid or unenforceable provision or portion.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nAFFINITY GAMING\nBy: /s/ Marc H. Rubinstein\nTitle: Sr. VP, GC & Secretary\nZ CAPITAL PARTNERS L.L .C .\n/s/ James J. Zenni, Jr.\nBy: James J. Zenni, Jr.\nTitle: President and Chief Executive Officer\n[Signature page to Confidentiality Agreement]\n10\nth
1c8babc8a7299e82486a96a3ced4424a.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 5 dex99e2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated as of March 24, 2007 by and between Lone Star U.S . Acquisitions, LLC (the\n“Receiving Party”) and Accredited Home Lenders Holding Co. (the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business transaction with the Company (the\n“Transaction”), and, in order to assist the Receiving Party in evaluating the Transaction, the Company is prepared to make available to the Receiving\nParty certain information concerning the business, operations and assets of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents,\nconsultants, related investment funds, advisors, attorneys, accountants, potential sources of equity capital and financing, and financial advisors of the\nReceiving Party, in each case who need to know such information for the purpose of evaluating a Transaction on the Receiving Party’s behalf\n(collectively, “Representatives”), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this\nAgreement and to take or abstain from taking certain, and to cause its Representatives to take or abstain from taking, other actions hereinafter set\nforth.\n(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business,\noperations, strategy or prospects that is furnished to the Receiving Party by or on behalf of the Company, whether furnished before or after the date\nof this Agreement, including, without limitation, any analyses, business or strategic plans, compilations, studies, data, reports, interpretations,\nprojections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained, whether\ndocumentary, computerized or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy\nor prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives that contain or otherwise reflect such\ninformation or any conversations with Representatives of the Company describing or relating thereto.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes generally available to the public\nother than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) is in the Receiving Party’s\npossession prior to disclosure by the Company or is independently derived by the Receiving Party without the aid, application or use of the\nConfidential Information or (c) is disclosed to the Receiving Party on a non-confidential basis by a third party not bound by any known duty or\nobligation of confidentiality.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party\nmay make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any\ninformation contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to\nsuch information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence; provided, further, that\nthe Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity capital (including, without\nlimitation, any potential co-investors) without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the\nterms of this Agreement by any of its Representatives, except to the extent that a Representative agrees in a writing delivered to the Company to be\nbound by the provisions hereof that are applicable to Representatives.\n(b) The Receiving Party agrees that it will use the Confidential Information solely for the purpose of the Transaction and for no other purpose.\nIn particular, the Receiving Party agrees that the Receiving Party and the Receiving Party’s affiliates with knowledge of the Transaction, and their\nrespective Representatives with\nknowledge of the Transaction, will not (i) divert or attempt to divert any business or customer of the Company or (ii) employ or attempt to employ or\ndivert any employee of the Company for so long as any such individual remains employed by the Company; provided, however, that the use of an\nindependent employment agency (so long as it is not directed to solicit such persons), advertisements in publications or other general solicitations for\nemployment not directed at such persons and the hiring as a result thereof shall not be deemed a violation of this paragraph.\n(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the\nReceiving Party hereby covenants to immediately notify the Company of any such unauthorized use. The Receiving Party shall be responsible for\nany breach of this letter by it or any of its Representatives.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party, or except as may be required by\napplicable law or regulation, neither the Receiving Party, the Company nor any person acting on behalf of either of them shall disclose to any person\n(other than disclosures by (a) the Receiving Party to the Receiving Party’s Representatives or (b) the Company to the Company’s directors, officers,\nemployees, agents, consultants, advisors, attorneys and accountants (the “Company Representatives”)) that any discussions or negotiations are taking\nplace between the parties hereto concerning a possible Transaction, including the status of such discussions or negotiations; provided that the\nReceiving Party shall not make any such disclosures to any potential sources of equity capital (including, without limitation, any potential co-\ninvestors) without the Company’s prior written consent.\n5. No Representations by Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be\nmade available to the Receiving Party and its Representatives. Neither the Company nor any of the Company Representatives will be under any\nobligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to\nsupplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made\nor is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the\nCompany nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives\nrelating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party, the Receiving Party agrees\nthat, until eighteen (18) months from the date hereof, the Receiving Party shall not, and shall cause its affiliates and its and their respective\nRepresentatives with knowledge of the Transaction not to, directly or indirectly, alone or in concert with others: (a) acquire or offer or agree to\nacquire, by purchase or otherwise, (i) any voting securities or securities convertible into or exchangeable for voting securities of the Company or its\naffiliates (or acquire or offer or agree to acquire beneficial ownership of any such securities) or (ii) any assets, businesses or properties of the\nCompany or its affiliates; (b) propose to enter into, or make any public announcement or submit a proposal or offer (with or without conditions) with\nrespect to, any tender or exchange offer, merger or business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction, or any licensing, distribution or other commercial arrangement, involving the Company, its affiliates or any of their\nrespective securities, assets, businesses or properties; (c) advise, seek to influence or control, in any manner whatsoever (including by proxy or\nconsent solicitation, obtaining representation on the board of directors or otherwise), the management, board of directors, policies or affairs of the\nCompany or its affiliates, or any person or entity with respect to the voting of, or giving of consents with respect to, any voting securities of the\nCompany or its affiliates, or initiate or support any stockholder proposal with respect to the Company or its affiliates; (d) form, join or in any way\nparticipate in a “group” (as such term is\n2\nused in Rule 13d-5 of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (e) disclose any intention, plan or\narrangement inconsistent with the foregoing, or make any request to waive or amend any provision of this Agreement or otherwise take any action if\nin the sole judgment of the Company such request or action may require public disclosure by the Company; or (f) enter into any discussions,\narrangements or understandings with, or otherwise assist, advise or encourage (including by providing or arranging financing for that purpose), any\nother person with respect to any of the foregoing. The Receiving Party also agrees during such eighteen (18) month period not to request the\nCompany or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nNotwithstanding anything in this paragraph to the contrary, it is understood and agreed that the Receiving Party may invest in the securitization pools\nof the Company or its affiliates at any time.\n7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the\nConfidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its\nRepresentatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the foregoing, the Receiving Party may\nretain copies of the Confidential Information in accordance with policies and procedures of the Receiving Party solely in order to comply with law,\nregulation or archival purposes; provided, however, that any Confidential Information so retained will continue to be Confidential Information\npursuant to the terms of this Agreement and the Receiving Party will continue to be bound by the terms of this Agreement with respect to such\nConfidential Information.\n8. Subpoena or Court Order. In the event that the Receiving Party or any Representative to whom it discloses the Confidential Information\nreceives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of\ncompetent jurisdiction or by another governmental agency, the Receiving Party or the Representative, as the case may be, shall (a) promptly notify\nthe Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps\nto resist or narrow such request, (c) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential\nInformation as the Receiving Party (or the Representative, if applicable) is advised by counsel is legally required to be disclosed and (d) cooperate\nwith the Company in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the\nConfidential Information that is required to be disclosed.\n9. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a\nTransaction has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n10. Remedies. The Receiving Party acknowledges that in the event of any breach of the terms of this Agreement, the Company could not be\nmade whole by monetary damages. Accordingly, the Company, in addition to any other remedy to which it may be entitled in law or in equity, shall\nbe entitled to an injunction to prevent breaches of the terms of this Agreement.\n11. Communications. Without the Company’s prior written consent, which may be withheld in the Company’s sole discretion, neither the\nReceiving Party nor any of its Representatives who are aware of the potential Transaction will initiate or cause to be initiated (other than through\nBear, Stearns & Co., Inc.) any (a) communication concerning the Confidential Information, (b) requests for meetings with management in\nconnection with the potential Transaction or other transaction between the parties or (c) communication relating to the business of the Company or\nits affiliates or the potential Transaction, in each case with any officer, director or employee of the Company or any of its affiliates.\n12. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws prohibit any person having non-public\n3\nmaterial information about a company from purchasing or selling securities of that company. For the sake of clarity, and notwithstanding any other\nprovisions hereof, this letter shall not restrict any investment activities of the Receiving Party to the extent decisions with respect thereto are made by\na person to whom Confidential Information has not been disclosed.\n13. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to\nthe matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company\nexpressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their\nrespective successors and assigns.\n14. No Waiver. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to\nthe laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction\nof the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this\nAgreement; (b) agree that service of any process, summons, notice or document by U.S . registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of the Receiving Party’s\nRepresentatives; (c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or\nrelating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to\nplead or claim, and irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this\nAgreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n16. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this\nAgreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in\nconnection with such litigation, including any appeal therefrom.\n17. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any\nprovisions of this Agreement.\n18. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n19. Term. Except as otherwise provided in Section 7, the provisions of this Agreement shall remain in effect until the earlier of (x) the date\nthat a Transaction between the Receiving Party (or an affiliate of the Receiving Party) and the Company is closed and (ii) eighteen (18) months from\nthe date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\n4\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nACCREDITED HOME LENDERS\nHOLDING CO.\nBy: /s/ CELIA SZCZUKA\nName:\nTitle:\nCelia Szczuka\nSenior Counsel and Assistant VP\nLONE STAR U.S . ACQUISITIONS, LLC\nBy: /s/ CATHARON J. MILLER\nName:\nTitle:\nCatharon J. Miller\nVice President	EX-99.(E)(2) 5 dex99e2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit ()(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated as of March 24, 2007 by and between Lone Star U.S. Acquisitions, LL.C (the\n“Receiving Party”) and Accredited Home Lenders Holding Co. (the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business transaction with the Company (the\n“Transaction™), and, in order to assist the Receiving Party in evaluating the Transaction, the Company is prepared to make available to the Receiving\nParty certain information concerning the business, operations and assets of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents,\nconsultants, related investment funds, advisors, attorneys, accountants, potential sources of equity capital and financing, and financial advisors of the\nReceiving Party, in each case who need to know such information for the purpose of evaluating a Transaction on the Receiving Party’s behalf\n(collectively, “Representatives™), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this\nAgreement and to take or abstain from taking certain, and to cause its Representatives to take or abstain from taking, other actions hereinafter set\nforth.\n(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business,\noperations, strategy or prospects that is furnished to the Receiving Party by or on behalf of the Company, whether furnished before or after the date\nof this Agreement, including, without limitation, any analyses, business or strategic plans, compilations, studies, data, reports, interpretations,\nprojections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained, whether\ndocumentary, computerized or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy\nor prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives that contain or otherwise reflect such\ninformation or any conversations with Representatives of the Company describing or relating thereto.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes generally available to the public\nother than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) is in the Receiving Party’s\npossession prior to disclosure by the Company or is independently derived by the Receiving Party without the aid, application or use of the\nConfidential Information or (c) is disclosed to the Receiving Party on a non-confidential basis by a third party not bound by any known duty or\nobligation of confidentiality.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party\nmay make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any\ninformation contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to\nsuch information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence; provided, further, that\nthe Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity capital (including, without\nlimitation, any potential co-investors) without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the\nterms of this Agreement by any of its Representatives, except to the extent that a Representative agrees in a writing delivered to the Company to be\nbound by the provisions hereof that are applicable to Representatives.\n \n \n(b) The Receiving Party agrees that it will use the Confidential Information solely for the purpose of the Transaction and for no other purpose.\nIn particular, the Receiving Party agrees that the Receiving Party and the Receiving Party’s affiliates with knowledge of the Transaction, and their\nrespective Representatives with\nknowledge of the Transaction, will not (i) divert or attempt to divert any business or customer of the Company or (ii) employ or attempt to employ or\ndivert any employee of the Company for so long as any such individual remains employed by the Company; provided, however, that the use of an\nindependent employment agency (so long as it is not directed to solicit such persons), advertisements in publications or other general solicitations for\nemployment not directed at such persons and the hiring as a result thereof shall not be deemed a violation of this paragraph.\n(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the\nReceiving Party hereby covenants to immediately notify the Company of any such unauthorized use. The Receiving Party shall be responsible for\nany breach of this letter by it or any of its Representatives.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party, or except as may be required by\napplicable law or regulation, neither the Receiving Party, the Company nor any person acting on behalf of either of them shall disclose to any person\n(other than disclosures by (a) the Receiving Party to the Receiving Party’s Representatives or (b) the Company to the Company’s directors, officers,\nemployees, agents, consultants, advisors, attorneys and accountants (the “Company Representatives™)) that any discussions or negotiations are taking\nplace between the parties hereto concerning a possible Transaction, including the status of such discussions or negotiations; provided that the\nReceiving Party shall not make any such disclosures to any potential sources of equity capital (including, without limitation, any potential co-\ninvestors) without the Company’s prior written consent.\n5. No Representations by Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be\nmade available to the Receiving Party and its Representatives. Neither the Company nor any of the Company Representatives will be under any\nobligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to\nsupplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made\nor is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the\nCompany nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives\nrelating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party, the Receiving Party agrees\nthat, until eighteen (18) months from the date hereof, the Receiving Party shall not, and shall cause its affiliates and its and their respective\nRepresentatives with knowledge of the Transaction not to, directly or indirectly, alone or in concert with others: (a) acquire or offer or agree to\nacquire, by purchase or otherwise, (i) any voting securities or securities convertible into or exchangeable for voting securities of the Company or its\naffiliates (or acquire or offer or agree to acquire beneficial ownership of any such securities) or (ii) any assets, businesses or properties of the\nCompany or its affiliates; (b) propose to enter into, or make any public announcement or submit a proposal or offer (with or without conditions) with\nrespect to, any tender or exchange offer, merger or business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction, or any licensing, distribution or other commercial arrangement, involving the Company, its affiliates or any of their\nrespective securities, assets, businesses or properties; (c) advise, seek to influence or control, in any manner whatsoever (including by proxy or\nconsent solicitation, obtaining representation on the board of directors or otherwise), the management, board of directors, policies or affairs of the\nCompany or its affiliates, or any person or entity with respect to the voting of, or giving of consents with respect to, any voting securities of the\nCompany or its affiliates, or initiate or support any stockholder proposal with respect to the Company or its affiliates; (d) form, join or in any way\nparticipate in a “group” (as such term is\nused in Rule 13d-5 of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (e) disclose any intention, plan or\narrangement inconsistent with the foregoing, or make any request to waive or amend any provision of this Agreement or otherwise take any action if\nin the sole judgment of the Company such request or action may require public disclosure by the Company; or (f) enter into any discussions,\narrangements or understandings with, or otherwise assist, advise or encourage (including by providing or arranging financing for that purpose), any\nother person with respect to any of the foregoing. The Receiving Party also agrees during such eighteen (18) month period not to request the\nCompany or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nNotwithstanding anything in this paragraph to the contrary, it is understood and agreed that the Receiving Party may invest in the securitization pools\nof the Company or its affiliates at any time.\n7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the\nConfidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its\nRepresentatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the foregoing, the Receiving Party may\nretain copies of the Confidential Information in accordance with policies and procedures of the Receiving Party solely in order to comply with law,\nregulation or archival purposes; provided, however, that any Confidential Information so retained will continue to be Confidential Information\npursuant to the terms of this Agreement and the Receiving Party will continue to be bound by the terms of this Agreement with respect to such\nConfidential Information.\n8. Subpoena or Court Order. In the event that the Receiving Party or any Representative to whom it discloses the Confidential Information\nreceives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of\ncompetent jurisdiction or by another governmental agency, the Receiving Party or the Representative, as the case may be, shall (a) promptly notify\nthe Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps\nto resist or narrow such request, (c) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential\nInformation as the Receiving Party (or the Representative, if applicable) is advised by counsel is legally required to be disclosed and (d) cooperate\nwith the Company in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the\nConfidential Information that is required to be disclosed.\n9. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a\nTransaction has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n10. Remedies. The Receiving Party acknowledges that in the event of any breach of the terms of this Agreement, the Company could not be\nmade whole by monetary damages. Accordingly, the Company, in addition to any other remedy to which it may be entitled in law or in equity, shall\nbe entitled to an injunction to prevent breaches of the terms of this Agreement.\n11. Communications. Without the Company’s prior written consent, which may be withheld in the Company’s sole discretion, neither the\nReceiving Party nor any of its Representatives who are aware of the potential Transaction will initiate or cause to be initiated (other than through\nBear, Stearns & Co., Inc.) any (a) communication concerning the Confidential Information, (b) requests for meetings with management in\nconnection with the potential Transaction or other transaction between the parties or (c) communication relating to the business of the Company or\nits affiliates or the potential Transaction, in each case with any officer, director or employee of the Company or any of its affiliates.\n12. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws prohibit any person having non-public\n3\nmaterial information about a company from purchasing or selling securities of that company. For the sake of clarity, and notwithstanding any other\nprovisions hereof, this letter shall not restrict any investment activities of the Receiving Party to the extent decisions with respect thereto are made by\na person to whom Confidential Information has not been disclosed.\n13. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to\nthe matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company\nexpressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their\nrespective successors and assigns.\n14. No Waiver. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to\nthe laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction\nof the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this\nAgreement; (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of the Receiving Party’s\nRepresentatives; (c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or\nrelating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to\nplead or claim, and irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this\nAgreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n16. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this\nAgreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in\nconnection with such litigation, including any appeal therefrom.\n17. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any\nprovisions of this Agreement.\n18. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n19. Term. Except as otherwise provided in Section 7, the provisions of this Agreement shall remain in effect until the earlier of (x) the date\nthat a Transaction between the Receiving Party (or an affiliate of the Receiving Party) and the Company is closed and (ii) eighteen (18) months from\nthe date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\n4\nIN WITNESS WHEREOQF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nACCREDITED HOME LENDERS\nHOLDING CO.\nBy: /s/ CELIA SZCZUKA\nName: Celia Szczuka\nTitle:  Senior Counsel and Assistant VP\nLONE STAR U.S. ACQUISITIONS, LLC\nBy: /s/  CATHARON J. MILLER\nName: Catharon J. Miller\nTitle:  Vice President	EX-99.(E)(2) 5 dex99e2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the "Agreement") is dated as of March 24, 2007 by and between Lone Star U.S. Acquisitions, LLC (the\n"Receiving. Party.") and Accredited Home Lenders Holding Co. (the "Company.").\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business transaction with the Company (the\n"Transaction"), and, in order to assist the Receiving Party in evaluating the Transaction, the Company is prepared to make available to the Receiving\nParty certain information concerning the business, operations and assets of the Company (all such information, the "Confidential Information").\nAs\na\ncondition\nto\nthe\nConfidential\nInformation\nbeing\nfurnished\nto\nthe\nReceiving\nParty\nand\nthe\ndirectors,\nofficers,\npartners,\nmembers,\nemployees,\nagents,\nconsultants, related investment funds, advisors, attorneys, accountants, potential sources of equity capital and financing, and financial advisors of the\nReceiving Party, in each case who need to know such information for the purpose of evaluating a Transaction on the Receiving Party's behalf\n(collectively, "Representatives"), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this\nAgreement and to take or abstain from taking certain, and to cause its Representatives to take or abstain from taking, other actions hereinafter set\nforth.\n(b) The term "Confidential Information" shall include, without limitation, any and all information concerning the Company and its business,\noperations, strategy or prospects that is furnished to the Receiving Party by or on behalf of the Company, whether furnished before or after the date\nof this Agreement, including, without limitation, any analyses, business or strategic plans, compilations, studies, data, reports, interpretations,\nprojections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained, whether\ndocumentary, computerized or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy\nor prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party's Representatives that contain or otherwise reflect such\ninformation or any conversations with Representatives of the Company describing or relating thereto.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes generally available to the public\nother than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) is in the Receiving Party's\npossession prior to disclosure by the Company or is independently derived by the Receiving Party without the aid, application or use of the\nConfidential Information or (c) is disclosed to the Receiving Party on a non-confidential basis by a third party not bound by any known duty or\nobligation of confidentiality.\n3. Limitations on Use and Disclosure of Confidential Information (a) The Receiving Party and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party\nmay make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any\ninformation contained in the Confidential Information may be disclosed to the Receiving Party's Representatives who reasonably require access to\nsuch information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence; provided, further, that\nthe Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity capital (including, without\nlimitation, any potential co-investors) without the Company's prior written consent. The Receiving Party shall be responsible for any breach of the\nterms of this Agreement by any of its Representatives, except to the extent that a Representative agrees in a writing delivered to the Company\nto\nbe\nbound by the provisions hereof that are applicable to Representatives.\n(b) The Receiving Party agrees that it will use the Confidential Information solely for the purpose of the Transaction and for no other purpose.\nIn\nparticular, the Receiving Party agrees that the Receiving Party and the Receiving Party's affiliates with knowledge of the Transaction, and their\nrespective Representatives with\nknowledge of the Transaction, will not (i) divert or attempt to divert any business or customer of the Company or (ii) employ or attempt to employ or\ndivert any employee of the Company for so long as any such individual remains employed by the Company; provided, however, that the use of an\nindependent employment agency (so long as it is not directed to solicit such persons), advertisements in publications or other general solicitations for\nemployment not directed at such persons and the hiring as a result thereof shall not be deemed a violation of this paragraph.\n(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the\nReceiving Party hereby covenants to immediately notify the Company of any such unauthorized use. The Receiving Party shall be responsible for\nany breach of this letter by it or any of its Representatives.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party, or except as may be required by\napplicable law or regulation, neither the Receiving Party, the Company nor any person acting on behalf of either of them shall disclose to any person\n(other\nthan disclosures by (a) the Receiving Party to the Receiving Party's Representatives or (b) the Company to the Company's directors, officers,\nemployees, agents, consultants, advisors, attorneys and accountants (the "Company. Representatives")) that any discussions or negotiations are taking\nplace between the parties hereto concerning a possible Transaction, including the status of such discussions or negotiations; provided that the\nReceiving Party shall not make any such disclosures to any potential sources of equity capital (including, without limitation, any potential co-\ninvestors) without the Company's prior written consent.\n5. No Representations by Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be\nmade available to the Receiving Party and its Representatives. Neither the Company nor any of the Company Representatives will be under any\nobligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party's Representatives or\nto\nsupplement\nor\nupdate\nany\nConfidential\nInformation\npreviously\nfurnished.\nNeither\nthe\nCompany\nnor\nany\nof\nthe\nCompany\nRepresentatives\nhas\nmade\nor is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the\nCompany nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party's Representatives\nrelating to or resulting from the use of any Confidentia Information or any inaccuracies or errors therein or omissions therefrom. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party, the Receiving Party agrees\nthat, until eighteen (18) months from the date hereof, the Receiving Party shall not, and shall cause its affiliates and its and their respective\nRepresentatives with knowledge of the Transaction not to, directly or indirectly, alone or in concert with others: (a) acquire or offer or agree\nto\nacquire, by purchase or otherwise, (i) any voting securities or securities convertible into or exchangeable for voting securities of the Company or its\naffiliates (or acquire or offer or agree to acquire beneficial ownership of any such securities) or (ii) any assets, businesses or properties of the\nCompany or its affiliates; (b) propose to enter into, or make any public announcement or submit a proposal or offer (with or without conditions) with\nrespect to, any tender or exchange offer, merger or business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction, or any licensing, distribution or other commercial arrangement, involving the Company, its affiliates or any of their\nrespective securities, assets, businesses or properties; (c) advise, seek to influence or control, in any manner whatsoever (including by proxy or\nconsent solicitation, obtaining representation on the board of directors or otherwise), the management, board of directors, policies or affairs of\nthe\nCompany or its affiliates, or any person or entity with respect to the voting of, or giving of consents with respect to, any voting securities of the\nCompany or its affiliates, or initiate or support any stockholder proposal with respect to the Company or its affiliates; (d) form, join or in any way\nparticipate in a "group" (as such term is\n2\nused in Rule 13d-5 of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (e) disclose any intention, plan or\narrangement inconsistent with the foregoing, or make any request to waive or amend any provision of this Agreement or otherwise take any action if\nin the sole judgment of the Company such request or action may require public disclosure by the Company; or (f) enter into any discussions,\narrangements or understandings with, or otherwise assist, advise or encourage (including by providing or arranging financing for that purpose), any\nother person with respect to any of the foregoing. The Receiving Party also agrees during such eighteen (18) month period not to request the\nCompany or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nNotwithstanding anything in this paragraph to the contrary, it is understood and agreed that the Receiving Party may invest in the securitization pools\nof the Company or its affiliates at any time.\n7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the\nConfidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its\nRepresentatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the foregoing, the Receiving Party may\nretain copies of the Confidentia Information in accordance with policies and procedures of the Receiving Party solely in order to comply with law,\nregulation or archival purposes; provided, however, that any Confidential Information so retained will continue to be Confidential Information\npursuant to the terms of this Agreement and the Receiving Party will continue to be bound by the terms of this Agreement with respect to such\nConfidential Information.\n8. Subpoena or Court Order. In the event that the Receiving Party or any Representative to whom it discloses the Confidential Information\nreceives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of\ncompetent jurisdiction or by another governmental agency, the Receiving Party or the Representative, as the case may be, shall (a) promptly notify\nthe Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps\nto resist or narrow such request, (c) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential\nInformation as the Receiving Party (or the Representative, if applicable) is advised by counsel is legally required to be disclosed and (d) cooperate\nwith the Company in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the\nConfidential Information that is required to be disclosed.\n9. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a\nTransaction has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n10. Remedies. The Receiving Party acknowledges that in the event of any breach of the terms of this Agreement, the Company could not be\nmade whole by monetary damages. Accordingly, the Company, in addition to any other remedy to which it may be entitled in law or in equity, shall\nbe entitled to an injunction to prevent breaches of the terms of this Agreement.\n11. Communications. Without the Company's prior written consent, which may be withheld in the Company's sole discretion, neither the\nReceiving Party nor any of its Representatives who are aware of the potential Transaction will initiate or cause to be initiated (other than through\nBear, Stearns & Co., Inc.) any (a) communication concerning the Confidential Information, (b) requests for meetings with management in\nconnection with the potential Transaction or other transaction between the parties or (c) communication relating to the business of the Company or\nits affiliates or the potential Transaction, in each case with any officer, director or employee of the Company or any of its affiliates.\n12. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws prohibit any person having non-public\n3\nmaterial information about a company from purchasing or selling securities of that company. For the sake of clarity, and notwithstanding any other\nprovisions hereof, this letter shall not restrict any investment activities of the Receiving Party to the extent decisions with respect thereto are made by\na person to whom Confidential Information has not been disclosed.\n13. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to\nthe\nmatters\ncontained\nherein,\nand\nmay\nbe\namended,\nmodified\nor\nwaived\nonly\nby\na\nseparate\nwriting\nexecuted\nby\nthe\nReceiving\nParty\nand\nthe\nCompany\nexpressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their\nrespective successors and assigns.\n14. No Waiver. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to\nthe laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction\nof the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this\nAgreement; (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of the Receiving Party's\nRepresentatives; (c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of\nor\nrelating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to\nplead or claim, and irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this\nAgreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n16. Expenses. In the event of litigation relating to this Agreement if a court of competent jurisdiction determines that a party has breached this\nAgreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in\nconnection with such litigation, including any appeal therefrom.\n17. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any\nprovisions of this Agreement.\n18. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n19. Term. Except as otherwise provided in Section 7, the provisions of this Agreement shall remain in effect until the earlier of (x) the date\nthat a Transaction between the Receiving Party (or an affiliate of the Receiving Party) and the Company is closed and (ii) eighteen (18) months from\nthe date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\n4\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nACCREDITED HOME LENDERS\nHOLDING CO.\nBy:\n/s/ CELIA SZCZUKA\nName: Celia Szczuka\nTitle: Senior Counsel and Assistant VP\nLONE STAR U.S. ACQUISITIONS, LLC\nBy:\n/s/ CATHARON J. MILLER\nName: Catharon J. Miller\nTitle: Vice President	EX-99.(E)(2) 5 dex99e2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated as of March 24, 2007 by and between Lone Star U.S . Acquisitions, LLC (the\n“Receiving Party”) and Accredited Home Lenders Holding Co. (the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business transaction with the Company (the\n“Transaction”), and, in order to assist the Receiving Party in evaluating the Transaction, the Company is prepared to make available to the Receiving\nParty certain information concerning the business, operations and assets of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents,\nconsultants, related investment funds, advisors, attorneys, accountants, potential sources of equity capital and financing, and financial advisors of the\nReceiving Party, in each case who need to know such information for the purpose of evaluating a Transaction on the Receiving Party’s behalf\n(collectively, “Representatives”), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this\nAgreement and to take or abstain from taking certain, and to cause its Representatives to take or abstain from taking, other actions hereinafter set\nforth.\n(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business,\noperations, strategy or prospects that is furnished to the Receiving Party by or on behalf of the Company, whether furnished before or after the date\nof this Agreement, including, without limitation, any analyses, business or strategic plans, compilations, studies, data, reports, interpretations,\nprojections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained, whether\ndocumentary, computerized or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy\nor prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives that contain or otherwise reflect such\ninformation or any conversations with Representatives of the Company describing or relating thereto.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes generally available to the public\nother than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) is in the Receiving Party’s\npossession prior to disclosure by the Company or is independently derived by the Receiving Party without the aid, application or use of the\nConfidential Information or (c) is disclosed to the Receiving Party on a non-confidential basis by a third party not bound by any known duty or\nobligation of confidentiality.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party\nmay make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any\ninformation contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to\nsuch information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence; provided, further, that\nthe Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity capital (including, without\nlimitation, any potential co-investors) without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the\nterms of this Agreement by any of its Representatives, except to the extent that a Representative agrees in a writing delivered to the Company to be\nbound by the provisions hereof that are applicable to Representatives.\n(b) The Receiving Party agrees that it will use the Confidential Information solely for the purpose of the Transaction and for no other purpose.\nIn particular, the Receiving Party agrees that the Receiving Party and the Receiving Party’s affiliates with knowledge of the Transaction, and their\nrespective Representatives with\nknowledge of the Transaction, will not (i) divert or attempt to divert any business or customer of the Company or (ii) employ or attempt to employ or\ndivert any employee of the Company for so long as any such individual remains employed by the Company; provided, however, that the use of an\nindependent employment agency (so long as it is not directed to solicit such persons), advertisements in publications or other general solicitations for\nemployment not directed at such persons and the hiring as a result thereof shall not be deemed a violation of this paragraph.\n(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the\nReceiving Party hereby covenants to immediately notify the Company of any such unauthorized use. The Receiving Party shall be responsible for\nany breach of this letter by it or any of its Representatives.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party, or except as may be required by\napplicable law or regulation, neither the Receiving Party, the Company nor any person acting on behalf of either of them shall disclose to any person\n(other than disclosures by (a) the Receiving Party to the Receiving Party’s Representatives or (b) the Company to the Company’s directors, officers,\nemployees, agents, consultants, advisors, attorneys and accountants (the “Company Representatives”)) that any discussions or negotiations are taking\nplace between the parties hereto concerning a possible Transaction, including the status of such discussions or negotiations; provided that the\nReceiving Party shall not make any such disclosures to any potential sources of equity capital (including, without limitation, any potential co-\ninvestors) without the Company’s prior written consent.\n5. No Representations by Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be\nmade available to the Receiving Party and its Representatives. Neither the Company nor any of the Company Representatives will be under any\nobligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to\nsupplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made\nor is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the\nCompany nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives\nrelating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party, the Receiving Party agrees\nthat, until eighteen (18) months from the date hereof, the Receiving Party shall not, and shall cause its affiliates and its and their respective\nRepresentatives with knowledge of the Transaction not to, directly or indirectly, alone or in concert with others: (a) acquire or offer or agree to\nacquire, by purchase or otherwise, (i) any voting securities or securities convertible into or exchangeable for voting securities of the Company or its\naffiliates (or acquire or offer or agree to acquire beneficial ownership of any such securities) or (ii) any assets, businesses or properties of the\nCompany or its affiliates; (b) propose to enter into, or make any public announcement or submit a proposal or offer (with or without conditions) with\nrespect to, any tender or exchange offer, merger or business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction, or any licensing, distribution or other commercial arrangement, involving the Company, its affiliates or any of their\nrespective securities, assets, businesses or properties; (c) advise, seek to influence or control, in any manner whatsoever (including by proxy or\nconsent solicitation, obtaining representation on the board of directors or otherwise), the management, board of directors, policies or affairs of the\nCompany or its affiliates, or any person or entity with respect to the voting of, or giving of consents with respect to, any voting securities of the\nCompany or its affiliates, or initiate or support any stockholder proposal with respect to the Company or its affiliates; (d) form, join or in any way\nparticipate in a “group” (as such term is\n2\nused in Rule 13d-5 of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (e) disclose any intention, plan or\narrangement inconsistent with the foregoing, or make any request to waive or amend any provision of this Agreement or otherwise take any action if\nin the sole judgment of the Company such request or action may require public disclosure by the Company; or (f) enter into any discussions,\narrangements or understandings with, or otherwise assist, advise or encourage (including by providing or arranging financing for that purpose), any\nother person with respect to any of the foregoing. The Receiving Party also agrees during such eighteen (18) month period not to request the\nCompany or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nNotwithstanding anything in this paragraph to the contrary, it is understood and agreed that the Receiving Party may invest in the securitization pools\nof the Company or its affiliates at any time.\n7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the\nConfidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its\nRepresentatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the foregoing, the Receiving Party may\nretain copies of the Confidential Information in accordance with policies and procedures of the Receiving Party solely in order to comply with law,\nregulation or archival purposes; provided, however, that any Confidential Information so retained will continue to be Confidential Information\npursuant to the terms of this Agreement and the Receiving Party will continue to be bound by the terms of this Agreement with respect to such\nConfidential Information.\n8. Subpoena or Court Order. In the event that the Receiving Party or any Representative to whom it discloses the Confidential Information\nreceives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of\ncompetent jurisdiction or by another governmental agency, the Receiving Party or the Representative, as the case may be, shall (a) promptly notify\nthe Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps\nto resist or narrow such request, (c) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential\nInformation as the Receiving Party (or the Representative, if applicable) is advised by counsel is legally required to be disclosed and (d) cooperate\nwith the Company in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the\nConfidential Information that is required to be disclosed.\n9. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a\nTransaction has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n10. Remedies. The Receiving Party acknowledges that in the event of any breach of the terms of this Agreement, the Company could not be\nmade whole by monetary damages. Accordingly, the Company, in addition to any other remedy to which it may be entitled in law or in equity, shall\nbe entitled to an injunction to prevent breaches of the terms of this Agreement.\n11. Communications. Without the Company’s prior written consent, which may be withheld in the Company’s sole discretion, neither the\nReceiving Party nor any of its Representatives who are aware of the potential Transaction will initiate or cause to be initiated (other than through\nBear, Stearns & Co., Inc.) any (a) communication concerning the Confidential Information, (b) requests for meetings with management in\nconnection with the potential Transaction or other transaction between the parties or (c) communication relating to the business of the Company or\nits affiliates or the potential Transaction, in each case with any officer, director or employee of the Company or any of its affiliates.\n12. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws prohibit any person having non-public\n3\nmaterial information about a company from purchasing or selling securities of that company. For the sake of clarity, and notwithstanding any other\nprovisions hereof, this letter shall not restrict any investment activities of the Receiving Party to the extent decisions with respect thereto are made by\na person to whom Confidential Information has not been disclosed.\n13. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to\nthe matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company\nexpressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their\nrespective successors and assigns.\n14. No Waiver. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to\nthe laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction\nof the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this\nAgreement; (b) agree that service of any process, summons, notice or document by U.S . registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of the Receiving Party’s\nRepresentatives; (c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or\nrelating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to\nplead or claim, and irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this\nAgreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n16. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this\nAgreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in\nconnection with such litigation, including any appeal therefrom.\n17. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any\nprovisions of this Agreement.\n18. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n19. Term. Except as otherwise provided in Section 7, the provisions of this Agreement shall remain in effect until the earlier of (x) the date\nthat a Transaction between the Receiving Party (or an affiliate of the Receiving Party) and the Company is closed and (ii) eighteen (18) months from\nthe date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\n4\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nACCREDITED HOME LENDERS\nHOLDING CO.\nBy: /s/ CELIA SZCZUKA\nName:\nTitle:\nCelia Szczuka\nSenior Counsel and Assistant VP\nLONE STAR U.S . ACQUISITIONS, LLC\nBy: /s/ CATHARON J. MILLER\nName:\nTitle:\nCatharon J. Miller\nVice President
1d43f9810804edab74b1d3388e3ecbca.pdf	jurisdiction party	Exhibit 10.16\nFIRST OAK BROOK BANCSHARES, INC.\nOAK BROOK BANK\nAgreement Regarding\nConfidentiality, Non-Solicitation of Customers and Employees\nand Prohibited Conduct\nThis Agreement is made by and between the undersigned (“Employee”) and First Oak Brook Bancshares, Inc., Oak Brook Bank\nand/or a subsidiary or affiliate of either of them (each such entities, separately and collectively referred to herein as “Bank”).\nAs a condition to and in consideration of Employee’s employment and/or continued employment by the Bank, and/or Employee’s\neligibility to receive and/or receipt of awards of bonus or incentive compensation under the First Oak Brook Bancshares, Inc.\nIncentive Compensation Plan and/or a similar or successor plan, or otherwise (such awards “Incentive Awards”), the parties agree to\nthe following:\n1. CONFIDENTIAL INFORMATION\n1.1 Disclosure or Use. Employee understands and acknowledges, that by virtue of his or her employment with Bank, he or she\nwill learn or develop Confidential Information (as that term is defined herein). Employee further acknowledges that unauthorized\ndisclosure or use of such Confidential Information, other than in discharge of his or her duties, will cause the Bank irreparable harm.\nAccordingly, during the term of his or her employment and thereafter, Employee agrees not to use any Confidential Information\nexcept in furtherance of his or her duties for the Bank, nor to disclose any Confidential Information except to officers or other\nEmployees of the Bank when it is necessary, in the ordinary course of business, to do so. Upon termination of employment with the\nBank for any reason, Employee shall not, directly or indirectly, disclose, publish, communicate or use on his or her behalf or\nanother’s behalf, any Confidential Information. Employee acknowledges that the Bank operates and competes in Illinois and other\njurisdictions, and that the Bank will be harmed by unauthorized disclosure or use of Confidential Information, regardless of where\nsuch disclosure or use occurs, and that therefore this confidentiality agreement is not limited to any single state, country or\njurisdiction.\n1.2 Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean trade secrets and other\nproprietary information concerning the products, processes or services of the Bank and information regarding customers and\nprospective customers of the Bank, which information (a) has not been made generally available to the public, and is useful or of\nvalue to the Bank’s current or anticipated business activities or of those of any customer or prospective customer of the Bank; or\n(b) is known by Employee to be confidential, or has been identified to Employee as confidential, either orally or in writing, or is\nrequired by applicable law, rule or regulation to be maintained as confidential by the Bank including, but not limited to: computer\nprograms; research and other statistical data and analyses; marketing, organizational or other research and development, or business\nplans; personnel information, including the identity of other employees of the Bank, their responsibilities, competence, abilities, and\ncompensation; financial, accounting and similar records of the Bank and/or any fund or account managed by the Bank; current and\nprospective customer lists and information on clients and their employees; customer financial statements, investment objectives, the\nnature of their investment portfolios and contractual agreements with the Bank; information concerning planned or pending\ninvestment products, acquisitions or divestitures.\n1.3 Exceptions. Confidential Information shall not include information which: (a) is in or hereafter enters the public domain\nthrough no fault of Employee; (b) is obtained by Employee from a third party having the legal right to use and disclose the same; or\n(c) is in the possession of Employee prior to receipt from the Bank (as evidenced by Employee’s written records pre-dating the date\nof employment).\n2. BANK PROPERTY\nAll notes, reports, plans, published memoranda or other documents created, developed, generated or held by Employee during\nemployment, concerning or related to the Bank’s business, and whether containing or relating to Confidential Information or not, and\nall tangible personal property of the Bank entrusted to Employee or in Employee’s direct or indirect possession or control, are the\nproperty of the Bank, and will be promptly delivered to the Bank and not thereafter used by Employee upon termination of\nEmployee’s employment for any reason whatsoever.\n3. BANK CUSTOMERS AND EMPLOYEES; NON-DISPARAGEMENT\nEmployee understands that Bank’s name and its relationships with its customers and employees, including its interest in\nmaintaining a stable workforce, are extremely valuable and are the result of the expenditure of substantial time, effort and resources\nby the Bank. Therefore, during the period of Employee’s employment and during the period ending (1) from the last day of\nEmployee’s employment with the Bank, Employee agrees that he or she will not, directly or indirectly, on behalf of himself or herself\nor any other person, business or entity:\n(a) solicit or attempt to solicit for the purpose of providing to, or provide to, any protected customer or any prospective customer\nof the Bank services or products of any kind which are offered or provided by the Bank, or assist any person, business or entity to do\nso; or\n(b) induce, recruit, solicit or encourage any protected employee to leave the employ of the Bank, or induce, solicit, recruit, attempt\nto recruit any protected employee to accept employment with another person, business or entity, or employ or be employed with a\nprotected employee, or assist any other person, business or entity to do so; or\n(c) make, or cause to be made, any statement or disclosure that disparages the Bank, or any of its affiliates, or any of their\ndirectors, officers or employees, or assist any other person, business or entity to do so.\nFor purposes of the Agreement, (x) “protected customer” means any business, entity or person which is or was a customer of the\nBank at any time during the period of Employee’s employment, other than any customer which had ceased to do business with the\nBank at least 12 months prior to Employee’s last day of employment, (y) “prospective customer” means any business, entity or\nperson which was contacted by the Employee or known by the Employee to have been contacted by any officer of the Bank, for the\npurpose of soliciting or attempting to solicit to provide services or products to such business, entity, person, other than any such\nbusiness, entity or person with respect to whom the most recent such contact occurred at least six months prior to Employee’s last day\nof employment, and (z) “protected employee” means any person who is or was an employee of the Bank during the period of\nEmployee’s employment, other than a former employee who has not been employed by the Bank for a period of at least six months\nand who terminated his or her employment with the Bank without any inducement or attempted inducement, recruiting, solicitation or\nencouragement by Employee or by any other employee of the Bank subject to a similar covenant.\n4. MISCELLANEOUS\n4.1 Acknowledgment and Remedies. In executing this Agreement, Employee does not rely on any inducements, promises or\nrepresentations of the Bank, or its officers or directors, other than the terms and conditions specifically set forth in this Agreement,\nand Employee acknowledges that he or she is an “at-will” employee of the Bank and nothing set forth herein gives or shall be deemed\nto give the Employee any right to remain in the employ of the Bank or to receive Incentive Awards. Employee further acknowledges\nthat the statements herein are true and correct; that Employee has read and understands all of the terms of this Agreement; and that\nemployment or continued employment by the Bank and/or eligibility for and/or receipt of Incentive Awards constitutes adequate\nconsideration for Employee’s obligations hereunder and for the covenants set forth above. Employee acknowledges that failure to\ncomply with Section 1 through 3 will cause irreparable damage to the Bank. Therefore, Employee agrees that, in addition to any other\nremedies at law or in equity available to the Bank for Employee’s breach or threatened breach of this Agreement, or the forfeiture or\ncancellation of, or the repayment to the Bank of gains realized from, Incentive Awards in accordance with the terms thereof, the Bank\nis entitled to specific performance or injunctive relief against Employee to prevent such damage or breach. In addition, in the event of\na breach or a violation of any of the covenants or provisions of Sections 1, 2 or 3 of this Agreement, the Employee shall be obligated\nto repay to the Bank any amounts received as severance pay and shall forfeit all rights to any further payments from the Bank.\nIn the event of a breach or a violation by Employee of any of the covenants and provisions of Sections 1 through 3 of this\nAgreement, the running of the period of restriction on the solicitation of customers and employees set forth in Section 3 (but not of\nEmployee’s obligation thereunder), shall be tolled during the period of the continuance of any actual breach or violation thereof.\n4.2 Notices. Except when actual receipt is expressly required by the terms hereof, notice is considered given either (i) when\ndelivered in person, (ii) when sent by Federal Express or comparable overnight night mail service, or (iii) two (2) days after deposit in\nthe United States mail in a sealed envelope or container by either registered or certified mail with return receipt requested and postage\nprepaid, and addressed to the party or person to be notified at the address set forth on the signature page hereof. Either party may\nrequire, by notice given at any time or from time to time, subsequent notices to a different address; provided, however, that a P.O.\nBox shall not be considered to be an address for purposes of this Agreement. Notices given before actual receipt of notice of change\nshall not be invalidated by the change.\n4.3 Waiver, Modification and Interpretation. No provisions of this Agreement may be modified, waived or discharged unless\nsuch waiver, modification or discharge is agreed to in a writing signed by all the parties hereto, and, in the case of the Bank, such\nwaiver, modification or discharge has been authorized or approved by the Board of Directors of the Bank. Any waiver by any party\nhereto of any breach of any kind or character whatsoever by any other party shall not be construed as a continuing waiver of, or\nconsent to, any subsequent breach of this Agreement on the part of the other party or parties. The validity, interpretation, construction\nand performance of this Agreement shall be governed by the laws of the State of Illinois applicable to contracts made and to be\nperformed in Illinois, without giving effect to the conflict of law principles thereof.\n4.4 Headings. The headings used in this Agreement are for convenience only and are not part of its operative language. They shall\nnot be used to affect the construction of any provisions hereof.\n4.5 Severability. The provisions of this Agreement are severable and should any provision hereof be void, voidable or\nunenforceable under any applicable law, such void, voidable or\nunenforceable provision shall not affect or invalidate any other provision of this Agreement, which shall continue to govern the\nrelative rights and duties of the parties as though the void, voidable or unenforceable provision were not a part hereof. In addition, it\nis the intention and agreement of the parties that all of the terms and conditions hereof be enforced to the fullest extent permitted by\nlaw.\n4.6 Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subject\nmatter hereof and supersedes all negotiations, representations, prior discussions and preliminary and other agreements between the\nparties hereto relating to the subject matter hereof.\n4.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal\nrepresentatives, successors and assigns.\nFIRST OAK BROOK BANCSHARES, INC.,\nEMPLOYEE:\nOAK BROOK BANK AND THEIR\nSUBSIDIARIES AND AFFILIATES\nBy:________________________________\n______________________________________\nDate:_______________________________\n______________________________________\nEmployee Name\nAddress:_______________________________\nCity, State & Zip Code:____________________\nDate:__________________________________\n(1) Restriction period is twelve months for Vice Presidents, 15 months for Senior Vice Presidents, 18 months for Executive Vice\nPresidents and 24 months for Senior Executive Vice Presidents.	Exhibit 10.16\nFIRST OAK BROOK BANC SHARES, INC.\nOAK BROOK BANK\nAgreement Regarding\nC onfidentiality, Non-Solicitation of C ustomers and Employees\nand Prohibited Conduct\nThis Agreement is made by and between the undersigned (”Employee”) and First Oak Brook Bancshares, Inc., Oak Brook Bank\nand/or a subsidiary or affiliate of either of them (each such entities, separately and collectively referred to herein as ”Bank”).\nAs a condition to and in consideration of Employee’s employment and/or continued employment by the Bank, and/or Employee' s\neligibility to receive and/or receipt of awards of bonus or incentive compensation under the First Oak Brook Bancshares, Inc.\nIncentive Compensation Plan and/or a similar or successor plan, or otherwise (such awards ”Incentive Awards”), the parties agree to\nthe following:\n1. CONFIDENTIAL INFORMATION\n1.1 Disclosure or Use. Employee understands and acknowledges, that by virtue of his or her employment with Bank, he or she\nwill learn or develop Confidential Information (as that term is defined herein). Employee further acknowledges that unauthorized\ndisclosure or use of such Confidential Information, other than in discharge of his or her duties, will cause the Bank irreparable harm.\nAccordingly, during the term of his or her employment and thereafter, Employee agrees not to use any Confidential Information\nexcept in furtherance of his or her duties for the Bank, nor to disclose any Confidential Information except to officers or other\nEmployees of the Bank when it is necessary, in the ordinary course of business, to do so. Upon termination of employment with the\nBank for any reason, Employee shall not, directly or indirectly, disclose, publish, communicate or use on his or her behalf or\nanother’ s behalf, any Confidential Information. Employee acknowledges that the Bank operates and competes in Illinois and other\njurisdictions, and that the Bank will be harmed by unauthorized disclosure or use of Confidential Information, regardless of where\nsuch disclosure or use occurs, and that therefore this confidentiality agreement is not limited to any single state, country or\njurisdiction.\n1.2 Confidential Information. For purposes of this Agreement, ”Confidential Information” shall mean trade secrets and other\nproprietary information concerning the products, processes or services of the Bank and information regarding customers and\nprospective customers of the Bank, which information (a) has not been made generally available to the public, and is useful or of\nvalue to the Bank's current or anticipated business activities or of those of any customer or prospective customer of the Bank; or\n(b) is known by Employee to be confidential, or has been identified to Employee as confidential, either orally or in writing, or is\nrequired by applicable law, rule or regulation to be maintained as confidential by the Bank including, but not limited to: computer\nprograms; research and other statistical data and analyses; marketing, organizational or other research and development, or business\nplans; personnel information, including the identity of other employees of the Bank, their responsibilities, competence, abilities, and\ncompensation; financial, accounting and similar records of the Bank and/or any fund or account managed by the Bank; current and\nprospective customer lists and information on clients and their employees; customer financial statements, investment objectives, the\nnature of their investment portfolios and contractual agreements with the Bank; information concerning planned or pending\ninvestment products, acquisitions or divestitures.\n1.3 Exceptions. Confidential Information shall not include information which: (a) is in or hereafter enters the public domain\nthrough no fault of Employee; (b) is obtained by Employee from a third party having the legal right to use and disclose the same; or\n(c) is in the possession of Employee prior to receipt from the Bank (as evidenced by Employee’s written records pre- dating the date\nof employment).\n2. BANK PROPERTY\nAll notes, reports, plans, published memoranda or other documents created, developed, generated or held by Employee during\nemployment, concerning or related to the Bank's business, and whether containing or relating to Confidential Information or not, and\nall tangible personal property of the Bank entrusted to Employee or in Employee' s direct or indirect possession or control, are the\nproperty of the Bank, and will be promptly delivered to the Bank and not thereafter used by Employee upon termination of\nEmployee' s employment for any reason whatsoever.\n3. BANK CUSTOMERS AND EMPLOYEES; NON-DISPARAGEMENT\nEmployee understands that Bank's name and its relationships with its customers and employees, including its interest in\nmaintaining a stable workforce, are extremely valuable and are the result of the expenditure of substantial time, effort and resources\nby the Bank. Therefore, during the period of Employee’s employment and during the period ending (1! from the last day of\nEmployee' s employment with the Bank, Employee agrees that he or she will not, directly or indirectly, on behalf of himself or herself\nor any other person, business or entity:\n(a) solicit or attempt to solicit for the purpose of providing to, or provide to, any protected customer or any prospective customer\nof the Bank services or products of any kind which are offered or provided by the Bank, or assist any person, business or entity to do\nso; or\n(b) induce, recruit, solicit or encourage any protected employee to leave the employ of the Bank, or induce, solicit, recruit, attempt\nto recruit any protected employee to accept employment with another person, business or entity, or employ or be employed with a\nprotected employee, or assist any other person, business or entity to do so; or\n(c) make, or cause to be made, any statement or disclosure that disparages the Bank, or any of its affiliates, or any of their\ndirectors, officers or employees, or assist any other person, business or entity to do so.\nFor purposes of the Agreement, (x) ”protected customer” means any business, entity or person which is or was a customer of the\nBank at any time during the period of Employee' s employment, other than any customer which had ceased to do business with the\nBank at least 12 months prior to Employee’s last day of employment, (y) ”prospective customer” means any business, entity or\nperson which was contacted by the Employee or known by the Employee to have been contacted by any officer of the Bank, for the\npurpose of soliciting or attempting to solicit to provide services or products to such business, entity, person, other than any such\nbusiness, entity or person with respect to whom the most recent such contact occurred at least six months prior to Employee' s last day\nof employment, and (z) ”protected employee" means any person who is or was an employee of the Bank during the period of\nEmployee' s employment, other than a former employee who has not been employed by the Bank for a period of at least six months\nand who terminated his or her employment with the Bank without any inducement or attempted inducement, recruiting, solicitation or\nencouragement by Employee or by any other employee of the Bank subject to a similar covenant.\n4.MISCELLANEOUS\n4.1 Acknowledgment and Remedies. In executing this Agreement, Employee does not rely on any inducements, promises or\nrepresentations of the Bank, or its officers or directors, other than the terms and conditions specifically set forth in this Agreement,\nand Employee acknowledges that he or she is an ”at-will” employee of the Bank and nothing set forth herein gives or shall be deemed\nto give the Employee any right to remain in the employ of the Bank or to receive Incentive Awards. Employee further acknowledges\nthat the statements herein are true and correct; that Employee has read and understands all of the terms of this Agreement; and that\nemployment or continued employment by the Bank and/or eligibility for and/or receipt of Incentive Awards constitutes adequate\nconsideration for Employee' 5 obligations hereunder and for the covenants set forth above. Employee acknowledges that failure to\ncomply with Section 1 through 3 will cause irreparable damage to the Bank. Therefore, Employee agrees that, in addition to any other\nremedies at law or in equity available to the Bank for Employee’s breach or threatened breach of this Agreement, or the forfeiture or\ncancellation of, or the repayment to the Bank of gains realized from, Incentive Awards in accordance with the terms thereof, the Bank\nis entitled to specific performance or injunctive relief against Employee to prevent such damage or breach. In addition, in the event of\na breach or a violation of any of the covenants or provisions of Sections 1, 2 or 3 of this Agreement, the Employee shall be obligated\nto repay to the Bank any amounts received as severance pay and shall forfeit all rights to any further payments from the Bank.\nIn the event of a breach or a violation by Employee of any of the covenants and provisions of Sections 1 through 3 of this\nAgreement, the running of the period of restriction on the solicitation of customers and employees set forth in Section 3 (but not of\nEmployee' 5 obligation thereunder), shall be tolled during the period of the continuance of any actual breach or violation thereof.\n4.2 Notices. Except when actual receipt is expressly required by the terms hereof, notice is considered given either (i) when\ndelivered in person, (ii) when sent by Federal Express or comparable overnight night mail service, or (iii) two (2) days after deposit in\nthe United States mail in a sealed envelope or container by either registered or certified mail with return receipt requested and postage\nprepaid, and addressed to the party or person to be notified at the address set forth on the signature page hereof. Either party may\nrequire, by notice given at any time or from time to time, subsequent notices to a different address; provided, however, that a PO.\nBox shall not be considered to be an address for purposes of this Agreement. Notices given before actual receipt of notice of change\nshall not be invalidated by the change.\n4.3 Waiverl Modification and Interpretation. No provisions of this Agreement may be modified, waived or discharged unless\nsuch waiver, modification or discharge is agreed to in a writing signed by all the parties hereto, and, in the case of the Bank, such\nwaiver, modification or discharge has been authorized or approved by the Board of Directors of the Bank. Any waiver by any party\nhereto of any breach of any kind or character whatsoever by any other party shall not be construed as a continuing waiver of, or\nconsent to, any subsequent breach of this Agreement on the part of the other party or parties. The validity, interpretation, construction\nand performance of this Agreement shall be governed by the laws of the State of Illinois applicable to contracts made and to be\nperformed in Illinois, without giving effect to the conflict of law principles thereof.\n4.4 Headings. The headings used in this Agreement are for convenience only and are not part of its operative language. They shall\nnot be used to affect the construction of any provisions hereof.\n4.5 Severahility. The provisions of this Agreement are severable and should any provision hereof be void, voidable or\nunenforceable under any applicable law, such void, voidable or\nunenforceable provision shall not affect or invalidate any other provision of this Agreement, which shall continue to govern the\nrelative rights and duties of the parties as though the void, voidable or unenforceable provision were not a part hereof. In addition, it\nis the intention and agreement of the parties that all of the terms and conditions hereof be enforced to the fullest extent permitted by\nlaw.\n4.6 Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subject\nmatter hereof and supersedes all negotiations, representations, prior discussions and preliminary and other agreements between the\nparties hereto relating to the subject matter hereof.\n4.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal\nrepresentatives, successors and assigns.\nFIRST OAK BROOK BANCSHARES, INC ., EMPLOYEE:\nOAK BROOK BANK AND THEIR\nSUBSIDIARIES AND AFFILIATES\nBy:\n \n \nD ate:\n \n \nEmployee Name\nA ddress:\n \nCity, State & Zip Code:\nD ate:\n \n(1) Restriction period is twelve months for Vice Presidents, 15 months for Senior Vice Presidents, 18 months for Executive Vice\nPresidents and 24 months for Senior Executive Vice Presidents.	Exhibit 10.16\nFIRST OAK BROOK BANCSHARES, INC.\nOAK BROOK BANK\nAgreement Regarding\nConfidentiality, Non-Solicitation of Customers and Employees\nand Prohibited Conduct\nThis A greement is made by and between the undersigned ("Employee") and First Oak Brook Bancshares, Inc., Oak Brook Bank\nand/or a subsidiary or affiliate of either of them (each such entities, separately and collectively referred to herein as "Bank").\nAs a condition to and in consideration of Employee's employment and/or continued employment by the Bank, and/or Employee's\neligibility to receive and/or receipt of awards of bonus or incentive compensation under the First Oak Brook Bancshares, Inc.\nIncentive Compensation Plan and/or a similar or successor plan, or otherwise (such awards "Incentive wards"), the parties agree to\nthe following:\n1. CONFIDENTIAL INFORMATION\n1.1 Disclosure or Use. Employee understands and acknowledges, that by virtue of his or her employment with Bank he or she\nwill leam or develop Confidential Information (as that term is defined herein). Employee further acknowledges that unauthorized\ndisclosure or use of such Confidentia Information, other than in discharge of his or her duties, will cause the Bank irreparable harm.\nA ccordingly, during the term of his or her employment and thereafter, Employee agrees not to use any Confidential Information\nexcept in furtherance of his or her duties for the Bank, nor to disclose any Confidential Information except to officers or other\nEmployees of the Bank when it is necessary, in the ordinary course of business, to do so. Upon termination of employment with the\nBank for any reason, Employee shall not, directly or indirectly, disclose, publish, communicate or use on his or her behalf or\nanother's behalf, any Confidential Information. Employee acknowledges that the Bank operates and competes in Illinois and other\njurisdictions, and that the Bank will be harmed by unauthorized disclosure or use of Confidential Information, regardless of where\nsuch disclosure or use occurs, and that therefore this confidentiality agreement is not limited to any single state, country or\njurisdiction.\n1.2 Confidential Information. For purposes of this Agreement, "Confidential Information" shall mean trade secrets and other\nproprietary information concerning the products, processes or services of the Bank and information regarding customers and\nprospective customers of the Bank, which information (a) has not been made generally available to the public, and is useful or of\nvalue to the Bank's current or anticipated business activities or of those of any customer or prospective customer of the Bank; or\n(b) is known by Employee to be confidential, or has been identified to Employee as confidential, either orally or in writing, or is\nrequired by applicable law, rule or regulation to be maintained as confidential by the Bank including, but not limited to: computer\nprograms; research and other statistical data and analyses; marketing, organizational or other research and development, or business\nplans; personne information, including the identity of other employees of the Bank, their responsibilities, competence, abilities, and\ncompensation; financial, accounting and similar records of the Bank and/or any fund or account managed by the Bank; current and\nprospective customer lists and information on clients and their employees; customer financial statements, investment objectives, the\nnature of their investment portfolios and contractual agreements with the Bank; information concerning planned or pending\ninvestment products, acquisitions or divestitures.\n1.3 Exceptions. Confidential Information shall not include information which: (a) is in or hereafter enters the public domain\nthrough no fault of Employee; (b) is obtained by Employee from a third party having the legal right to use and disclose the same; or\n(c) is in the possession of Employee prior to receipt from the Bank (as evidenced by Employee's written records pre-dating the date\nof employment).\n2. BANK PROPERTY\nAll notes, reports, plans, published memoranda or other documents created, developed, generated or held by Employee during\nemployment, concerning or related to the Bank's business, and whether containing or relating to Confidential Information or not,\nand\nall tangible personal property of the Bank entrusted to Employee or in Employee's direct or indirect possession or control, are the\nproperty of the Bank and will be promptly delivered to the Bank and not thereafter used by Employee upon termination of\nEmployee's employment for any reason whatsoever.\n3. BANK CUSTOMERS AND EMPLOYEES; NON-DISPARAGEMENT\nEmployee understands that Bank's name and its relationships with its customers and employees, including its interest in\nmaintaining a stable workforce, are extremely valuable and are the result of the expenditure of substantial time, effort and resources\nby the Bank. Therefore, during the period of Employee's employment and during the period ending (1) from the last day\nof\nEmployee's employment with the Bank, Employee agrees that he or she will not, directly or indirectly, on behalf of himself or herself\nor any other person, business or entity:\n(a) solicit or attempt to solicit for the purpose of providing to, or provide to, any protected customer or any prospective customer\nof the Bank services or products of any kind which are offered or provided by the Bank, or assist any person, business or entity to do\nSO; or\n(b) induce, recruit, solicit or encourage any protected employee to leave the employ of the Bank, or induce, solicit, recruit, attempt\nto recruit any protected employee to accept employment with another person, business or entity, or employ or be employed with a\nprotected employee, or assist any other person, business or entity to do SO; or\n(c) make, or cause to be made, any statement or disclosure that disparages the Bank, or any of its affiliates, or any of their\ndirectors, officers or employees, or assist any other person, business or entity to do so.\nFor purposes of the A greement (x) "protected customer" means any business, entity or person which is or was a customer of the\nBank at any time during the period of Employee's employment, other than any customer which had ceased to do business with the\nBank at least 12 months prior to Employee's last day of employment, (y) "prospective customer" means any business, entity or\nperson which was contacted by the Employee or known by the Employee to have been contacted by any officer of the Bank, for the\npurpose of soliciting or attempting to solicit to provide services or products to such business, entity, person, other than any such\nbusiness, entity or person with respect to whom the most recent such contact occurred at least six months prior to Employee's last day\nof employment, and (z) "protected employee" means any person who is or was an employee of the Bank during the period of\nEmployee's employment other than a former employee who has not been employed by the Bank for a period of at least six months\nand who terminated his or her employment with the Bank without any inducement or attempted inducement, recruiting, solicitation or\nencouragement by Employee or by any other employee of the Bank subject to a similar covenant.\n4. MISCELLANEOUS\n4.1 Acknowledgment and Remedies. In executing this A greement, Employee does not rely on any inducements, promises or\nrepresentations of the Bank, or its officers or directors, other than the terms and conditions specifically set forth in this A greement,\nand Employee acknowledges that he or she is an "at-will" employee of the Bank and nothing set forth herein gives or shall be deemed\nto give the Employee any right to remain in the employ of the Bank or to receive Incentive wards. Employee further acknowledges\nthat the statements herein are true and correct; that Employee has read and understands all of the terms of this A greement; and that\nemployment or continued employment by the Bank and/or eligibility for and/or receipt of Incentive A wards constitutes adequate\nconsideration for Employee's obligations hereunder and for the covenants set forth above. Employee acknowledges that failure\nto\ncomply with Section 1 through 3 will cause irreparable damage to the Bank. Therefore, Employee agrees that, in addition to any other\nremedies at law or in equity available to the Bank for Employee's breach or threatened breach of this A greement, or the forfeiture or\ncancellation of, or the repayment to the Bank of gains realized from, Incentive A wards in accordance with the terms thereof, the Bank\nis entitled to specific performance or injunctive relief against Employee to prevent such damage or breach. In addition, in the event of\na breach or a violation of any of the covenants or provisions of Sections 1, 2 or 3 of this A greement, the Employee shall be obligated\nto repay to the Bank any amounts received as severance pay and shall forfeit all rights to any further payments from the Bank.\nIn the event of a breach or a violation by Employee of any of the covenants and provisions of Sections 1 through 3 of this\nAgreement, the running of the period of restriction on the solicitation of customers and employees set forth in Section 3 (but not of\nEmployee's obligation thereunder), shall be tolled during the period of the continuance of any actual breach or violation thereof.\n4.2 Notices. Except when actual receipt is expressly required by the terms hereof, notice is considered given either (i) when\ndelivered in person, (ii) when sent by Federal Express or comparable overnight night mail service, or (iii) two (2) days after deposit in\nthe United States mail in a sealed envelope or container by either registered or certified mail with return receipt requested and postage\nprepaid and addressed to the party or person to be notified at the address set forth on the signature page hereof. Either party may\nrequire, by notice given at any time or from time to time, subsequent notices to a different address; provided, however, that a P.O.\nBox shall not be considered to be an address for purposes of this Agreement. Notices given before actual receipt of notice of change\nshall not be invalidated by the change.\n4.3 Waiver, Modification and Interpretation No provisions of this greement may be modified, waived or discharged unless\nsuch waiver, modification or discharge is agreed to in a writing signed by all the parties hereto, and, in the case of the Bank, such\nwaiver, modification or discharge has been authorized or approved by the Board of Directors of the Bank. Any waiver by any party\nhereto of any breach of any kind or character whatsoever by any other party shall not be construed as a continuing waiver of, or\nconsent to, any subsequent breach of this greement on the part of the other party or parties. The validity, interpretation, construction\nand performance of this greement shall be governed by the laws of the State of Illinois applicable to contracts made and to be\nperformed in Illinois, without giving effect to the conflict of law principles thereof.\n4.4 Headings. The headings used in this A greement are for convenience only and are not part of its operative language. They shall\nnot be used to affect the construction of any provisions hereof.\n4.5 Severability The provisions of this A greement are severable and should any provision hereof be void, voidable or\nunenforceable under any applicable law, such void, voidable or\nunenforceable provision shall not affect or invalidate any other provision of this Agreement, which shall continue to govern the\nrelative rights and duties of the parties as though the void, voidable or unenforceable provision were not a part hereof. In addition, it\nis the intention and agreement of the parties that all of the terms and conditions hereof be enforced to the fullest extent permitted by\nlaw.\n4.6 Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subject\nmatter hereof and supersedes all negotiations, representations, prior discussions and preliminary and other agreements between the\nparties hereto relating to the subject matter hereof.\n4.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal\nrepresentatives, successors and assigns.\nFIRST OAK BROOK BANCSHARES, INC.,\nEMPLOYEE:\nOAK BROOK BANK AND THEIR\nSUBSIDIARIES AND AFFILIATES\nBy:\nDate:\nEmployee Name\nA ddress:\nCity, State & Zip Code:\nDate:\n(1) Restriction period is twelve months for Vice Presidents, 15 months for Senior Vice Presidents, 18 months for Executive Vice\nPresidents and 24 months for Senior Executive Vice Presidents.	Exhibit 10.16\nFIRST OAK BROOK BANCSHARES, INC.\nOAK BROOK BANK\nAgreement Regarding\nConfidentiality, Non-Solicitation of Customers and Employees\nand Prohibited Conduct\nThis Agreement is made by and between the undersigned (“Employee”) and First Oak Brook Bancshares, Inc., Oak Brook Bank\nand/or a subsidiary or affiliate of either of them (each such entities, separately and collectively referred to herein as “Bank”).\nAs a condition to and in consideration of Employee’s employment and/or continued employment by the Bank, and/or Employee’s\neligibility to receive and/or receipt of awards of bonus or incentive compensation under the First Oak Brook Bancshares, Inc.\nIncentive Compensation Plan and/or a similar or successor plan, or otherwise (such awards “Incentive Awards”), the parties agree to\nthe following:\n1. CONFIDENTIAL INFORMATION\n1.1 Disclosure or Use. Employee understands and acknowledges, that by virtue of his or her employment with Bank, he or she\nwill learn or develop Confidential Information (as that term is defined herein). Employee further acknowledges that unauthorized\ndisclosure or use of such Confidential Information, other than in discharge of his or her duties, will cause the Bank irreparable harm.\nAccordingly, during the term of his or her employment and thereafter, Employee agrees not to use any Confidential Information\nexcept in furtherance of his or her duties for the Bank, nor to disclose any Confidential Information except to officers or other\nEmployees of the Bank when it is necessary, in the ordinary course of business, to do so. Upon termination of employment with the\nBank for any reason, Employee shall not, directly or indirectly, disclose, publish, communicate or use on his or her behalf or\nanother’s behalf, any Confidential Information. Employee acknowledges that the Bank operates and competes in Illinois and other\njurisdictions, and that the Bank will be harmed by unauthorized disclosure or use of Confidential Information, regardless of where\nsuch disclosure or use occurs, and that therefore this confidentiality agreement is not limited to any single state, country or\njurisdiction.\n1.2 Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean trade secrets and other\nproprietary information concerning the products, processes or services of the Bank and information regarding customers and\nprospective customers of the Bank, which information (a) has not been made generally available to the public, and is useful or of\nvalue to the Bank’s current or anticipated business activities or of those of any customer or prospective customer of the Bank; or\n(b) is known by Employee to be confidential, or has been identified to Employee as confidential, either orally or in writing, or is\nrequired by applicable law, rule or regulation to be maintained as confidential by the Bank including, but not limited to: computer\nprograms; research and other statistical data and analyses; marketing, organizational or other research and development, or business\nplans; personnel information, including the identity of other employees of the Bank, their responsibilities, competence, abilities, and\ncompensation; financial, accounting and similar records of the Bank and/or any fund or account managed by the Bank; current and\nprospective customer lists and information on clients and their employees; customer financial statements, investment objectives, the\nnature of their investment portfolios and contractual agreements with the Bank; information concerning planned or pending\ninvestment products, acquisitions or divestitures.\n1.3 Exceptions. Confidential Information shall not include information which: (a) is in or hereafter enters the public domain\nthrough no fault of Employee; (b) is obtained by Employee from a third party having the legal right to use and disclose the same; or\n(c) is in the possession of Employee prior to receipt from the Bank (as evidenced by Employee’s written records pre-dating the date\nof employment).\n2. BANK PROPERTY\nAll notes, reports, plans, published memoranda or other documents created, developed, generated or held by Employee during\nemployment, concerning or related to the Bank’s business, and whether containing or relating to Confidential Information or not, and\nall tangible personal property of the Bank entrusted to Employee or in Employee’s direct or indirect possession or control, are the\nproperty of the Bank, and will be promptly delivered to the Bank and not thereafter used by Employee upon termination of\nEmployee’s employment for any reason whatsoever.\n3. BANK CUSTOMERS AND EMPLOYEES; NON-DISPARAGEMENT\nEmployee understands that Bank’s name and its relationships with its customers and employees, including its interest in\nmaintaining a stable workforce, are extremely valuable and are the result of the expenditure of substantial time, effort and resources\nby the Bank. Therefore, during the period of Employee’s employment and during the period ending (1) from the last day of\nEmployee’s employment with the Bank, Employee agrees that he or she will not, directly or indirectly, on behalf of himself or herself\nor any other person, business or entity:\n(a) solicit or attempt to solicit for the purpose of providing to, or provide to, any protected customer or any prospective customer\nof the Bank services or products of any kind which are offered or provided by the Bank, or assist any person, business or entity to do\nso; or\n(b) induce, recruit, solicit or encourage any protected employee to leave the employ of the Bank, or induce, solicit, recruit, attempt\nto recruit any protected employee to accept employment with another person, business or entity, or employ or be employed with a\nprotected employee, or assist any other person, business or entity to do so; or\n(c) make, or cause to be made, any statement or disclosure that disparages the Bank, or any of its affiliates, or any of their\ndirectors, officers or employees, or assist any other person, business or entity to do so.\nFor purposes of the Agreement, (x) “protected customer” means any business, entity or person which is or was a customer of the\nBank at any time during the period of Employee’s employment, other than any customer which had ceased to do business with the\nBank at least 12 months prior to Employee’s last day of employment, (y) “prospective customer” means any business, entity or\nperson which was contacted by the Employee or known by the Employee to have been contacted by any officer of the Bank, for the\npurpose of soliciting or attempting to solicit to provide services or products to such business, entity, person, other than any such\nbusiness, entity or person with respect to whom the most recent such contact occurred at least six months prior to Employee’s last day\nof employment, and (z) “protected employee” means any person who is or was an employee of the Bank during the period of\nEmployee’s employment, other than a former employee who has not been employed by the Bank for a period of at least six months\nand who terminated his or her employment with the Bank without any inducement or attempted inducement, recruiting, solicitation or\nencouragement by Employee or by any other employee of the Bank subject to a similar covenant.\n4. MISCELLANEOUS\n4.1 Acknowledgment and Remedies. In executing this Agreement, Employee does not rely on any inducements, promises or\nrepresentations of the Bank, or its officers or directors, other than the terms and conditions specifically set forth in this Agreement,\nand Employee acknowledges that he or she is an “at-will” employee of the Bank and nothing set forth herein gives or shall be deemed\nto give the Employee any right to remain in the employ of the Bank or to receive Incentive Awards. Employee further acknowledges\nthat the statements herein are true and correct; that Employee has read and understands all of the terms of this Agreement; and that\nemployment or continued employment by the Bank and/or eligibility for and/or receipt of Incentive Awards constitutes adequate\nconsideration for Employee’s obligations hereunder and for the covenants set forth above. Employee acknowledges that failure to\ncomply with Section 1 through 3 will cause irreparable damage to the Bank. Therefore, Employee agrees that, in addition to any other\nremedies at law or in equity available to the Bank for Employee’s breach or threatened breach of this Agreement, or the forfeiture or\ncancellation of, or the repayment to the Bank of gains realized from, Incentive Awards in accordance with the terms thereof, the Bank\nis entitled to specific performance or injunctive relief against Employee to prevent such damage or breach. In addition, in the event of\na breach or a violation of any of the covenants or provisions of Sections 1, 2 or 3 of this Agreement, the Employee shall be obligated\nto repay to the Bank any amounts received as severance pay and shall forfeit all rights to any further payments from the Bank.\nIn the event of a breach or a violation by Employee of any of the covenants and provisions of Sections 1 through 3 of this\nAgreement, the running of the period of restriction on the solicitation of customers and employees set forth in Section 3 (but not of\nEmployee’s obligation thereunder), shall be tolled during the period of the continuance of any actual breach or violation thereof.\n4.2 Notices. Except when actual receipt is expressly required by the terms hereof, notice is considered given either (i) when\ndelivered in person, (ii) when sent by Federal Express or comparable overnight night mail service, or (iii) two (2) days after deposit in\nthe United States mail in a sealed envelope or container by either registered or certified mail with return receipt requested and postage\nprepaid, and addressed to the party or person to be notified at the address set forth on the signature page hereof. Either party may\nrequire, by notice given at any time or from time to time, subsequent notices to a different address; provided, however, that a P.O.\nBox shall not be considered to be an address for purposes of this Agreement. Notices given before actual receipt of notice of change\nshall not be invalidated by the change.\n4.3 Waiver, Modification and Interpretation. No provisions of this Agreement may be modified, waived or discharged unless\nsuch waiver, modification or discharge is agreed to in a writing signed by all the parties hereto, and, in the case of the Bank, such\nwaiver, modification or discharge has been authorized or approved by the Board of Directors of the Bank. Any waiver by any party\nhereto of any breach of any kind or character whatsoever by any other party shall not be construed as a continuing waiver of, or\nconsent to, any subsequent breach of this Agreement on the part of the other party or parties. The validity, interpretation, construction\nand performance of this Agreement shall be governed by the laws of the State of Illinois applicable to contracts made and to be\nperformed in Illinois, without giving effect to the conflict of law principles thereof.\n4.4 Headings. The headings used in this Agreement are for convenience only and are not part of its operative language. They shall\nnot be used to affect the construction of any provisions hereof.\n4.5 Severability. The provisions of this Agreement are severable and should any provision hereof be void, voidable or\nunenforceable under any applicable law, such void, voidable or\nunenforceable provision shall not affect or invalidate any other provision of this Agreement, which shall continue to govern the\nrelative rights and duties of the parties as though the void, voidable or unenforceable provision were not a part hereof. In addition, it\nis the intention and agreement of the parties that all of the terms and conditions hereof be enforced to the fullest extent permitted by\nlaw.\n4.6 Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subject\nmatter hereof and supersedes all negotiations, representations, prior discussions and preliminary and other agreements between the\nparties hereto relating to the subject matter hereof.\n4.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal\nrepresentatives, successors and assigns.\nFIRST OAK BROOK BANCSHARES, INC.,\nEMPLOYEE:\nOAK BROOK BANK AND THEIR\nSUBSIDIARIES AND AFFILIATES\nBy:________________________________\n______________________________________\nDate:_______________________________\n______________________________________\nEmployee Name\nAddress:_______________________________\nCity, State & Zip Code:____________________\nDate:__________________________________\n(1) Restriction period is twelve months for Vice Presidents, 15 months for Senior Vice Presidents, 18 months for Executive Vice\nPresidents and 24 months for Senior Executive Vice Presidents.
1ebe90010883632839adf34be282271b.pdf	effective_date jurisdiction party	Exhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the “Agreement”) is made and entered into on May 4, 2005 by and between the Affiliated Companies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company,\nKimberly Gold Mines, Inc. Shoshone Silver Mining Company (hereinafter the “Company”), and Michael L. Mooney (hereinafter “Employee”).\nFOR GOOD CONSIDERATION, and in consideration of Employee’s employment or continued employment with the Company, Employee hereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or proprietary business information of or regarding the Company; consisting of but not necessarily\nlimited to:\na. Technical information: Assays and assay results, resource estimates and/or projections. methods, processes, formulae, compositions. systems, techniques, inventions, machines, computer programs, research projects and experimental or\ndevelopmental work, relating to any project or organization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data, marketing, production, and merchandising systems or plans and operation plans, investor transactions,\nstock and/or warrant ownership.\n2. As used in this Agreement, the term “Confidential Information” means all Technical and/or Business information described in paragraphs 1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business\ninformation of or regarding the Company (including information created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business. Confidential Information includes not only\nthe information itself, but also all documents containing such information, and any and all such information maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any\ninformation which Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to Employee by the Company, through means other than Employee’s breach of his/her\nobligations under this Agreement.\n3. Employee agrees that, except in promoting the Company’s business, and as necessary in performing the duties of his/her employment with the Company, Employee shall not use in any manner, directly or indirectly, any Confidential\nInformation. Employee agrees that he/she will never use any Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow any Confidential Information to\nbe used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is the exclusive property of the Company, and Employee has no independent or individual claim to such Confidential\nInformation for any purpose. During his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized disclosure or use of any and all Confidential Information.\nEmployee further agrees to notify the Company immediately in the event that he/she becomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an “employee at will” whose employment with the Company can be terminated by either Employee or the Company at any time. for any\nreason, or for no reason at all, with or without advance notice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with the laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked “confidential” or “proprietary,” including but not necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or\ninvestor lists, computer programs, and all other materials and all copies thereof relating in any way to Company’s business, or in any way obtained by me during the course of employment. I further agree that I shall not retain copies. notes\nor abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement. The Company shall be entitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other\navailable remedies, including the recovery of monetary damages.\nc. This Agreement shall be binding upon me and my personal representatives and successors-in-interest, and shall inure to the benefit of Company, its successors and assigns.\nAuthorized Company Signature\nEmployee Signature\nPrinted Name\nPrinted Name\nDate\nDate\n2	Exhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the "A greement") is made and entered into on May 4, 2005 by and between the Affiliated Companies, which included but are not limited to, SilverValley Capital, Sterling Mining Company,\nKimberly G old Mines, Inc. Shoshone Silver Mining Company (hereinafter the "Company"), and Michael L. Mooney (hereinafter "Employee").\nFOR GOOD CONSIDERATION, and in consideration of Employee's employment or continued employment with the Company, Employee hereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or proprietary business information of or regarding the Company,- consisting of but not necessarily\nlimited in:\na. Technical information: Assays and assay results, resource estimates andlor projections. methods, processes, formulae, compositions. systems, techniques, inventions, machines, computer programs, research projects and experimental or\ndevelopmental work, relating to any project or organization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data, marketing, production, and merchandising systems or plans and operation plans, investor transactions,\nstock and/or warrant ownership.\n2. As used in this Agreement, the term ”Confidential Information" means all Technical and/or Business information described in paragraphs 1(a) and (b) above, and any other trade secrets and/or confidential andlor proprietary business\ninformation of or regarding the Company (including information created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business. Confidential Information includes not only\nthe information itself, but also all documents containing such information, and any and all such information maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any\ninformation which Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to Employee by the Company, through means other than Employee’s breach of his/her\nobligations under this A greement.\n3. Employee agrees that, except in promoting the Company's business, and as necessary in performing the duties of his/her employment with the Company, Employee shall not use in any manner, directly or indirectly, any Confidential\nInformation. Employee agrees that he/she will never use any Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow any Confidential Information to\nbe used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is the exclusive property of the Company, and Employee has no independent or individual claim to such Confidential\nInformation for any purpose. During his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized disclosure or use of any and all Confidential Information.\nEmployee further agrees to notify the Company immediately in the event that he/she becomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee undersmnds and agrees that he/she is being employed for an indefinite term, and is an "employee at will" whose employment with the Company can be terminated by either Employee or the Company at any time. for any\nreason, or for no reason at all, with or without advance notice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with the laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked "confidential" or "proprietary," including but not necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or\ninvestor lists, computer programs, and all other materials and all copies thereof relating in any way to Company' s business, or in any way obmined by me during the course of employment I further agree that I shall not retain copies. notes\nor abstracts of the foregoing\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement The Company shall be entitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other\navailable remedies, including the recovery of monemry damages\nc. This Agreement shall be binding upon me and my personal represenmtives and successors-in-interest, and shall inure to the benefit of Company, its successors and assigns\nAuthorized Company Signafi re Employee Signafiire\nPrinted Name Printed Name\nD ate — D ate	Exhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure A greement (hereinafter the Agreement") is made and entered into on May 4, 2005 by and between the Affiliated Companies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company,\nKimberly Gold Mines, Inc Shoshone Silver Mining Company (hereinafter the "Company"), and Michael L. Mooney (hereinafter "Employee").\nFOR GOOD CONSIDERATION, and in consideration of Employee's employment or continued employment with the Company, Employee hereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or proprietary business information of or regarding the Company; consisting of but not necessarily\nlimited to:\na. Technical information: Assays and assay results resource estimates and/or projections methods, processes, formulae, compositions. systems, techniques, inventions machines, computer programs, research projects and experimental or\ndevelopmental work, relating to any project or organization.\nb. Business information Business and development plans, investor and customer lists, pricing data, sources of supply, financial data, marketing production, and merchandising systems or plans and operation plans investor transactions,\nstock and/or warrant ownership.\n2. As used in this Agreement, the term "Confidential Information" means all Technical and/or Business information described in paragraphs 1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business\ninformation of or regarding the Company (including information created or developed in whole or in part by Employee) which is not generally known about the Company or about its business. Confidential Information includes not only\nthe information itself, but also all documents containing such information, and any and all such information maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any\ninformation which Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to Employee by the Company, through means other than Employee's breach of his/her\nobligations under this Agreement.\n3. Employee agrees that, except in promoting the Company's business, and as necessary in performing the duties of his/her employment with the Company Employee shall not use in any manner, directly or indirectly, any Confidential\nInformation Employee agrees that he/she wil never use any Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow any Confidential Information to\nbe\nused in competition with the Company. Employee acknowledges and agrees that all Confidential Information is the exclusive property of the Company, and Employee has no independent or individual claim to such Confidential\nInformation for any purpose. During his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized disclosure or use of any and all Confidential Information.\nEmployee further agrees to notify the Company immediately in the event that he/she becomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an "employee at will" whose employment with the Company can be terminated by either Employee or the Company at any time. for any\nreason, or for no reason at all, with or without advance notice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with the laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked "confidential" or "proprietary," including but not necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or\ninvestor lists, computer programs, and all other materials and all copies thereof relating in any way to Company's business, or in any way obtained by me during the course of employment. I further agree that I shall not retain copies notes\nor abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement The Company shall be entitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other\navailable remedies, including the recovery of monetary damages.\nC. This A greement shall be binding upon me and my personal representatives and successors-in-interest, and shall inure to the benefit of Company, its successors and assigns.\nAuthorized Company Signature\nEmployee Signature\nPrinted Name\nPrinted Name\nDate\nDate\n2	Exhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the “Agreement”) is made and entered into on May 4, 2005 by and between the Affiliated Companies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company,\nKimberly Gold Mines, Inc. Shoshone Silver Mining Company (hereinafter the “Company”), and Michael L. Mooney (hereinafter “Employee”).\nFOR GOOD CONSIDERATION, and in consideration of Employee’s employment or continued employment with the Company, Employee hereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or proprietary business information of or regarding the Company; consisting of but not necessarily\nlimited to:\na. Technical information: Assays and assay results, resource estimates and/or projections. methods, processes, formulae, compositions. systems, techniques, inventions, machines, computer programs, research projects and experimental or\ndevelopmental work, relating to any project or organization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data, marketing, production, and merchandising systems or plans and operation plans, investor transactions,\nstock and/or warrant ownership.\n2. As used in this Agreement, the term “Confidential Information” means all Technical and/or Business information described in paragraphs 1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business\ninformation of or regarding the Company (including information created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business. Confidential Information includes not only\nthe information itself, but also all documents containing such information, and any and all such information maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any\ninformation which Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to Employee by the Company, through means other than Employee’s breach of his/her\nobligations under this Agreement.\n3. Employee agrees that, except in promoting the Company’s business, and as necessary in performing the duties of his/her employment with the Company, Employee shall not use in any manner, directly or indirectly, any Confidential\nInformation. Employee agrees that he/she will never use any Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow any Confidential Information to\nbe used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is the exclusive property of the Company, and Employee has no independent or individual claim to such Confidential\nInformation for any purpose. During his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized disclosure or use of any and all Confidential Information.\nEmployee further agrees to notify the Company immediately in the event that he/she becomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an “employee at will” whose employment with the Company can be terminated by either Employee or the Company at any time. for any\nreason, or for no reason at all, with or without advance notice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with the laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked “confidential” or “proprietary,” including but not necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or\ninvestor lists, computer programs, and all other materials and all copies thereof relating in any way to Company’s business, or in any way obtained by me during the course of employment. I further agree that I shall not retain copies. notes\nor abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement. The Company shall be entitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other\navailable remedies, including the recovery of monetary damages.\nc. This Agreement shall be binding upon me and my personal representatives and successors-in-interest, and shall inure to the benefit of Company, its successors and assigns.\nAuthorized Company Signature\nEmployee Signature\nPrinted Name\nPrinted Name\nDate\nDate\n2
1f41426812f1d8b1bcf30a6f37a12d51.pdf	effective_date jurisdiction party term	EX-99.(E).(14) 4 d525547dex99e14.htm NON DISCLOSURE AGREEMENT DATED AUG. 1, 2012\nExhibit (e)(14)\nLOGO\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into as of August 1, 2012, by and between AEROSONIC CORPORATION having its primary place of business at\n1212 North Hercules Avenue, Clearwater, Florida (hereinafter referred to as Aerosonic or DISCLOSING PARTY) and TransDigm Group\nIncorporated having its place of business at 1301 East 9th Street, Suite 3000, Cleveland, OH 44114 (hereinafter referred to as TRANSDIGM or\nRECEIVING PARTY).\n1. PURPOSE\nThe purpose of this Agreement is to set forth the rights and obligations of the parties with respect to the use, handling, protection, and\nsafeguarding of Proprietary Information which is disclosed by and between the parties.\n2. DEFINITION\nProprietary Information is defined as technical data and other information (including but not limited to descriptions, drawings, compositions,\nbusiness and financial information, technology development plans or strategies, and computer software) in whatever form and concerning any\ntopic, which is identified as proprietary by the disclosing party in accordance with the following guidelines:\nA. When disclosed in writing, Proprietary Information will be clearly and conspicuously marked by appropriate stamp or legend by the\ndisclosing party as Proprietary Information;\nB. When disclosed orally or visually, Proprietary Information will be immediately identified as Proprietary Information, and within thirty\n(30) days of disclosure, the disclosing party will summarize the oral or visual disclosure in written form, mark it as proprietary, and\ndelivery it to the receiving party;\nC. When disclosed in the form of magnetic recording or some other machine-readable form, Proprietary information will be identified as\nProprietary Information when transmitted, if possible, the container and form of the information will be clearly and conspicuously\nmarked by the disclosing party as proprietary. Within thirty (30) days after disclosure, the disclosing party will confirm the disclosure\nand specifically identify the Proprietary Information disclosed. Any physical embodiment of such information will be clearly and\nconspicuously marked as proprietary to the disclosing party.\n3. TERM\nThis Agreement shall terminate two years after the date first entered. Provided, however this Agreement may be terminated by either party at\nany time by giving thirty (30) days written notice of termination to the other party. Notwithstanding any such termination, the requirements\nspecified in Article 5 herein below shall continue to be binding upon the parties thereafter. All proprietary action, samples and models, if any,\nexchanged hereunder shall remain the property of the Disclosing Party and shall be returned to it or destroyed within thirty (30) days at the\nrequest and instruction of the Disclosing Party should such information no longer be required by the Receiving Party, or upon termination or\nexpiration of this Agreement together with all copies made thereof by the Receiving Party hereunder. Upon request, the\nAerosonic NDA September 2011\n1\nReceiving Party shall promptly send the Disclosing Party a destruction certificate. Notwithstanding the foregoing, the Receiving Party may\nretain one copy of an information obtained hereunder solely for use in connection with the determination or resolution of a dispute between the\nparties. Any such information retained by the Receiving Party shall remain subject to the terms of this Agreement.\n4. POINTS OF CONTACT\nThe primary points of contact with respect to the transmission and control of Proprietary Information disclosed under this Agreement are:\nFor: AEROSONIC CORPORATION\nFor: TRANSDIGM\nName: Mark Perkins\nName: Bemt Iversen II\nPhone: 727-461 -3000\nPhone: 864-843-5365\nEach Party may change its point of contact by written notice to the other Party.\n5. LIMITATIONS ON USE AND DISCLOSURE OF PROPRIETARY INFORMATION\nA. Proprietary Information disclosed by either party may be used by the Receiving Party solely in furtherance of projects or a transaction\nwith the Disclosing Party and shall not otherwise be used for the benefit of the recipient or others.\nB. Proprietary Information shall not be copied or reproduced by the Receiving Party without the express written permission of the\nDisclosing Party, except for such copies as may be reasonably required for accomplishment of the purpose stated above.\nC. Proprietary Information shall be disclosed only to employees and agents of the Receiving Party who have a “need to know” in\nconnection with the purpose stated above and have agreed to be bound by the terms hereof. The Receiving Party agrees that it will not\ndisclose Proprietary Information of the other Parties to third parties, other than its agents, unless and until expressly authorized in writing\nby the Disclosing Party.\nD. This Agreement shall not restrict disclosure or use of the Proprietary Information which:\n(1) was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this Agreement by\nthe Receiving Party, and only after such information enters the public domain; or\n(2) was, at the time of receipt, otherwise known to the Receiving Party without restrictions as to use or disclosure; or\n(3) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the\nReceiving Party; or\n(4) is developed independently by the Receiving Party without the use of Proprietary Information disclosed to it hereunder; or\n(5) is disclosed more than ten (10) years after it is first received hereunder.\n6. PROHIBITION ON INSIDER TRADING\nDuring the exchange of information covered by this Agreement, the Receiving Party and its employees and agents may have access to or learn\nof certain information which is material in nature with regard to the Disclosing Party’s financial performance or prospects, as well as the status\nof a potential transaction, which information is not publically known. The Receiving Party acknowledges, and will so advise its employees and\nagents, that acting on such information for fiduciary gain is prohibited by applicable law and regulations.\nAerosonic NDA September 2011\n2\n7. LIABILITY FOR INADVERTENT USE\nNeither party shall be liable for the inadvertent or accidental use or disclosure of information identified as proprietary, provided such use or\ndisclosure occurs despite the exercise of the same degree of care as that party normally takes to safeguard and preserve its own similar\nProprietary Information, provided such degree of care is no less than reasonable.\n8. WARRANTY\nNEITHER PARTY MAKES ANY WARRANTY, GUARANTEE, OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH\nRESPECT TO ANY OF THE PROPRIETARY INFORMATION DISCLOSED HEREUNDER. NEITHER PARTY SHALL BE LIABLE IN\nDAMAGES, OF WHATEVER KIND, AS A RESULT OF THE OTHER PARTY’S RELIANCE ON OR USE OF THE INFORMATION\nPROVIDED HEREUNDER.\n9. NO FORMAL BUSINESS OBLIGATIONS\nThis Agreement shall not constitute, create, give effect to or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of\nany party to submit a proposal or perform a contract with any other party. Nothing herein shall be construed as providing for the sharing of\nprofits or losses arising out of the efforts of either or both parties. Neither party will be liable to the other for any of the costs associated with\nthe other’s efforts in connection with this Agreement.\n10. NO LICENSE GRANTED\nNo license or conveyance of any rights to either party under any discoveries, inventions, patents, trade secrets, copyrights, or other form of\nintellectual property is granted or implied by the exchange of Proprietary Information between the parties.\n11. APPLICABLE LAW\nThis agreement shall be governed by and interpreted solely in accordance with the laws of the State of Florida.\n12. UNITED STATES GOVERNMENT REGULATIONS\nThe parties and their employees shall not use or disclose any Proprietary Information or other information furnished hereunder in any manner\ncontrary to the laws and regulations of the United States of America, or any agency thereof, including but not limited to the Export\nAdministration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S . Department of\nState, and the Industrial Security Manual for Safeguarding Classified Information of the Department of Defense.\n13. ASSIGNABILITY\nExcept for a sale or transfer of the business to which this Agreement relates, the rights of the Parties under this Agreement may not be assigned\nor transferred to any person, or entity without the express prior written consent of the other Party, which consent will not be unreasonably\nwithheld. Any purported assignment without express prior written consent will be void.\n14. ENTIRE AGREEMENT\nThis Agreement contains the entire understanding between the Parties relative to the protection of Proprietary Information to be exchanged\nbetween the, and supersedes all prior and collateral communications, reports, and understandings between the Parties. No change,\nmodification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives\nAerosonic NDA September 2011\n3\nof the Parties. This Agreement shall apply in lieu of and notwithstanding any specific legend or statement associated with any Proprietary\nInformation exchanged, and the duties of the Parties shall be determined exclusively by the Agreement. If any portion of the Agreement is held\nto be invalid, such decision shall not affect the validity of the remaining portions.\nIN WITNESS whereof the parties have caused this Agreement to be duly executed by their duly authorized representatives on the day and year first\nabove written.\nAEROSONIC CORPORATION\nTRANSDIGM GROUP\nINCORPORATED\nLOGO\nAerosonic NDA September 2011\n4	EX-99.(E).(14) 4 d525547dex99e14.htm NON DISCLOSURE AGREEMENT DATED AUG. 1, 2012\nExhibit (e)(14)\n».LOGO\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into as of August 1, 2012, by and between AEROSONIC CORPORATION having its primary place of business at\n1212 North Hercules Avenue, Clearwater, Florida (hereinafter referred to as Aerosonic or DISCLOSING PARTY) and TransDigm Group\nIncorporated having its place of business at 1301 East 9th Street, Suite 3000, Cleveland, OH 44114 (hereinafter referred to as TRANSDIGM or\nRECEIVING PARTY).\n1. PURPOSE\nThe purpose of this Agreement is to set forth the rights and obligations of the parties with respect to the use, handling, protection, and\nsafeguarding of Proprietary Information which is disclosed by and between the parties.\n2. DEFINITION\nProprietary Information is defined as technical data and other information (including but not limited to descriptions, drawings, compositions,\nbusiness and financial information, technology development plans or strategies, and computer software) in whatever form and concerning any\ntopic, which is identified as proprietary by the disclosing party in accordance with the following guidelines:\nA.  When disclosed in writing, Proprietary Information will be clearly and conspicuously marked by appropriate stamp or legend by the\ndisclosing party as Proprietary Information;\nB.  When disclosed orally or visually, Proprietary Information will be immediately identified as Proprietary Information, and within thirty\n(30) days of disclosure, the disclosing party will summarize the oral or visual disclosure in written form, mark it as proprietary, and\ndelivery it to the receiving party;\nC.  When disclosed in the form of magnetic recording or some other machine-readable form, Proprietary information will be identified as\nProprietary Information when transmitted, if possible, the container and form of the information will be clearly and conspicuously\nmarked by the disclosing party as proprietary. Within thirty (30) days after disclosure, the disclosing party will confirm the disclosure\nand specifically identify the Proprietary Information disclosed. Any physical embodiment of such information will be clearly and\nconspicuously marked as proprietary to the disclosing party.\n3. TERM\nThis Agreement shall terminate two years after the date first entered. Provided, however this Agreement may be terminated by either party at\nany time by giving thirty (30) days written notice of termination to the other party. Notwithstanding any such termination, the requirements\nspecified in Article 5 herein below shall continue to be binding upon the parties thereafter. All proprietary action, samples and models, if any,\nexchanged hereunder shall remain the property of the Disclosing Party and shall be returned to it or destroyed within thirty (30) days at the\nrequest and instruction of the Disclosing Party should such information no longer be required by the Receiving Party, or upon termination or\nexpiration of this Agreement together with all copies made thereof by the Receiving Party hereunder. Upon request, the\nAerosonic NDA September 2011 1\nReceiving Party shall promptly send the Disclosing Party a destruction certificate. Notwithstanding the foregoing, the Receiving Party may\nretain one copy of an information obtained hereunder solely for use in connection with the determination or resolution of a dispute between the\nparties. Any such information retained by the Receiving Party shall remain subject to the terms of this Agreement.\n4.  POINTS OF CONTACT\nThe primary points of contact with respect to the transmission and control of Proprietary Information disclosed under this Agreement are:\nFor: AEROSONIC CORPORATION For: TRANSDIGM\nName: Mark Perkins Name: Bemt Iversen 11\nPhone: 727-461 -3000 Phone: 864-843-5365\nEach Party may change its point of contact by written notice to the other Party.\n5. LIMITATIONS ON USE AND DISCT.OSURE OF PROPRIETARY INFORMATION\nA. Proprietary Information disclosed by either party may be used by the Receiving Party solely in furtherance of projects or a transaction\nwith the Disclosing Party and shall not otherwise be used for the benefit of the recipient or others.\nB.  Proprietary Information shall not be copied or reproduced by the Receiving Party without the express written permission of the\nDisclosing Party, except for such copies as may be reasonably required for accomplishment of the purpose stated above.\nC.  Proprietary Information shall be disclosed only to employees and agents of the Receiving Party who have a “need to know” in\nconnection with the purpose stated above and have agreed to be bound by the terms hereof. The Receiving Party agrees that it will not\ndisclose Proprietary Information of the other Parties to third parties, other than its agents, unless and until expressly authorized in writing\nby the Disclosing Party.\nD. This Agreement shall not restrict disclosure or use of the Proprietary Information which:\n(1)  was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this Agreement by\nthe Receiving Party, and only after such information enters the public domain; or\n(2)  was, at the time of receipt, otherwise known to the Receiving Party without restrictions as to use or disclosure; or\n(3)  becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the\nReceiving Party; or\n(4)  is developed independently by the Receiving Party without the use of Proprietary Information disclosed to it hereunder; or\n(5) is disclosed more than ten (10) years after it is first received hereunder.\n6. PROHIBITION ON INSIDER TRADING\nDuring the exchange of information covered by this Agreement, the Receiving Party and its employees and agents may have access to or learn\nof certain information which is material in nature with regard to the Disclosing Party’s financial performance or prospects, as well as the status\nof a potential transaction, which information is not publically known. The Receiving Party acknowledges, and will so advise its employees and\nagents, that acting on such information for fiduciary gain is prohibited by applicable law and regulations.\nAerosonic NDA September 2011 2\n10. 11. 12. 13. 14. LIABILITY FOR INADVERTENT USE\nNeither party shall be liable for the inadvertent or accidental use or disclosure of information identified as proprietary, provided such use or\ndisclosure occurs despite the exercise of the same degree of care as that party normally takes to safeguard and preserve its own similar\nProprietary Information, provided such degree of care is no less than reasonable.\nWARRANTY\nNEITHER PARTY MAKES ANY WARRANTY, GUARANTEE, OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH\nRESPECT TO ANY OF THE PROPRIETARY INFORMATION DISCLOSED HEREUNDER. NEITHER PARTY SHALL BE LIABLE IN\nDAMAGES, OF WHATEVER KIND, AS A RESULT OF THE OTHER PARTY’S RELIANCE ON OR USE OF THE INFORMATION\nPROVIDED HEREUNDER.\nNO FORMAL BUSINESS OBLIGATIONS\nThis Agreement shall not constitute, create, give effect to or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of\nany party to submit a proposal or perform a contract with any other party. Nothing herein shall be construed as providing for the sharing of\nprofits or losses arising out of the efforts of either or both parties. Neither party will be liable to the other for any of the costs associated with\nthe other’s efforts in connection with this Agreement.\nNO LICENSE GRANTED\nNo license or conveyance of any rights to either party under any discoveries, inventions, patents, trade secrets, copyrights, or other form of\nintellectual property is granted or implied by the exchange of Proprietary Information between the parties.\nAPPLICABLE LAW\nThis agreement shall be governed by and interpreted solely in accordance with the laws of the State of Florida.\nUNITED STATES GOVERNMENT REGULATIONS\nThe parties and their employees shall not use or disclose any Proprietary Information or other information furnished hereunder in any manner\ncontrary to the laws and regulations of the United States of America, or any agency thereof, including but not limited to the Export\nAdministration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S. Department of\nState, and the Industrial Security Manual for Safeguarding Classified Information of the Department of Defense.\nASSIGNABILITY\nExcept for a sale or transfer of the business to which this Agreement relates, the rights of the Parties under this Agreement may not be assigned\nor transferred to any person, or entity without the express prior written consent of the other Party, which consent will not be unreasonably\nwithheld. Any purported assignment without express prior written consent will be void.\nENTIRE AGREEMENT\nThis Agreement contains the entire understanding between the Parties relative to the protection of Proprietary Information to be exchanged\nbetween the, and supersedes all prior and collateral communications, reports, and understandings between the Parties. No change,\nmodification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives\nAerosonic NDA September 2011 3\fof the Parties. This Agreement shall apply in lieu of and notwithstanding any specific legend or statement associated with any Proprietary\nInformation exchanged, and the duties of the Parties shall be determined exclusively by the Agreement. If any portion of the Agreement is held\nto be invalid, such decision shall not affect the validity of the remaining portions.\nIN WITNESS whereof the parties have caused this Agreement to be duly executed by their duly authorized representatives on the day and year first\nabove written.\nAEROSONIC CORPORATION TRANSDIGM GROUP\nINCORPORATED\n».LOGO\nAerosonic NDA September 2011 4	EX-99.(E).(14) 4 d525547dex99e14.htm NON DISCLOSURE AGREEMENT DATED AUG. 1, 2012\nExhibit (e)(14)\nLOGO\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into as of August 1, 2012, by and between AEROSONIC CORPORATION having its primary place of business at\n1212 North Hercules Avenue, Clearwater, Florida (hereinafter referred to as Aerosonic or DISCLOSING PARTY) and TransDigm Group\nIncorporated having its place of business at 1301 East 9th Street, Suite 3000, Cleveland, OH 44114 (hereinafter referred to as TRANSDIGM\nor\nRECEIVING PARTY).\n1. PURPOSE\nThe purpose of this Agreement is to set forth the rights and obligations of the parties with respect to the use, handling, protection, and\nsafeguarding of Proprietary Information which is disclosed by and between the parties.\n2. DEFINITION\nProprietary Information is defined as technical data and other information (including but not limited to descriptions, drawings, compositions,\nbusiness and financial information, technology development plans or strategies, and computer software) in whatever form and concerning any\ntopic, which is identified as proprietary by the disclosing party in accordance with the following guidelines:\nA.\nWhen disclosed in writing, Proprietary Information will be clearly and conspicuously marked by appropriate stamp or legend by the\ndisclosing party as Proprietary Information;\nB.\nWhen disclosed orally or visually, Proprietary Information will be immediately identified as Proprietary Information, and within thirty\n(30) days of disclosure, the disclosing party will summarize the oral or visual disclosure in written form, mark it as proprietary, and\ndelivery it to the receiving party;\nC.\nWhen disclosed in the form of magnetic recording or some other machine-readable form, Proprietary information will be identified as\nProprietary Information when transmitted, if possible, the container and form of the information will be clearly and conspicuously\nmarked by the disclosing party as proprietary. Within thirty (30) days after disclosure, the disclosing party will confirm the disclosure\nand specifically identify the Proprietary Information disclosed. Any physical embodiment of such information will be clearly and\nconspicuously marked as proprietary to the disclosing party.\n3.\nTERM\nThis Agreement shall terminate two years after the date first entered. Provided, however this Agreement may be terminated by either party at\nany time by giving thirty (30) days written notice of termination to the other party. Notwithstanding any such termination, the requirements\nspecified in Article 5 herein below shall continue to be binding upon the parties thereafter. All proprietary action, samples and models, if any,\nexchanged hereunder shall remain the property of the Disclosing Party and shall be returned to it or destroyed within thirty (30) days at the\nrequest and instruction of the Disclosing Party should such information no longer be required by the Receiving Party, or upon termination or\nexpiration of this Agreement together with all copies made thereof by the Receiving Party hereunder. Upon request, the\nAerosonic NDA September 2011\n1\nReceiving Party shall promptly send the Disclosing Party a destruction certificate. Notwithstanding the foregoing, the Receiving Party may\nretain one copy of an information obtained hereunder solely for use in connection with the determination or resolution of a dispute between the\nparties. Any such information retained by the Receiving Party shall remain subject to the terms of this Agreement.\n4.\nPOINTS OF CONTACT\nThe primary points of contact with respect to the transmission and control of Proprietary Information disclosed under this Agreement are:\nFor: AEROSONIC CORPORATION\nFor: TRANSDIGM\nName: Mark Perkins\nName: Bemt Iversen II\nPhone: 727-461 -3000\nPhone: 864-843-5365\nEach Party may change its point of contact by written notice to the other Party.\n5.\nLIMITATIONS ON USE AND DISCLOSURE OF PROPRIETARY INFORMATION\nA.\nProprietary Information disclosed by either party may be used by the Receiving Party solely in furtherance of projects or a transaction\nwith the Disclosing Party and shall not otherwise be used for the benefit of the recipient or others.\nB.\nProprietary Information shall not be copied or reproduced by the Receiving Party without the express written permission of the\nDisclosing Party, except for such copies as may be reasonably required for accomplishment of the purpose stated above.\nC.\nProprietary Information shall be disclosed only to employees and agents of the Receiving Party who have a "need to know" in\nconnection with the purpose stated above and have agreed to be bound by the terms hereof. The Receiving Party agrees that it will not\ndisclose Proprietary Information of the other Parties to third parties, other than its agents, unless and until expressly authorized in writing\nby the Disclosing Party.\nD.\nThis Agreement shall not restrict disclosure or use of the Proprietary Information which:\n(1)\nwas in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this Agreement by\nthe Receiving Party, and only after such information enters the public domain; or\n(2)\nwas, at the time of receipt, otherwise known to the Receiving Party without restrictions as to use or disclosure; or\n(3)\nbecomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the\nReceiving Party; or\n(4)\nis developed independently by the Receiving Party without the use of Proprietary Information disclosed to it hereunder; or\n(5)\nis disclosed more than ten (10) years after it is first received hereunder.\n6.\nPROHIBITION ON INSIDER TRADING\nDuring the exchange of information covered by this Agreement, the Receiving Party and its employees and agents may have access to or learn\nof certain information which is material in nature with regard to the Disclosing Party's financial performance or prospects, as well as the status\nof a potential transaction, which information is not publically known. The Receiving Party acknowledges, and will so advise its employees and\nagents, that acting on such information for fiduciary gain is prohibited by applicable law and regulations.\nAerosonic NDA September 2011\n2\n7.\nLIABILITY FOR INADVERTENT USE\nNeither party shall be liable for the inadvertent or accidental use or disclosure of information identified as proprietary, provided such use or\ndisclosure occurs despite the exercise of the same degree of care as that party normally takes to safeguard and preserve its own similar\nProprietary Information, provided such degree of care is no less than reasonable.\n8. WARRANTY\nNEITHER PARTY MAKES ANY WARRANTY, GUARANTEE, OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH\nRESPECT TO ANY OF THE PROPRIETARY INFORMATION DISCLOSED HEREUNDER. NEITHER PARTY SHALL BE LIABLE IN\nDAMAGES, OF WHATEVER KIND, AS A RESULT OF THE OTHER PARTY'S RELIANCE ON OR USE OF THE INFORMATION\nPROVIDED HEREUNDER.\n9.\nNO FORMAL BUSINESS OBLIGATIONS\nThis Agreement shall not constitute, create, give effect to or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of\nany party to submit a proposal or perform a contract with any other party. Nothing herein shall be construed as providing for the sharing of\nprofits or losses arising out of the efforts of either or both parties. Neither party will be liable to the other for any of the costs associated with\nthe other's efforts in connection with this Agreement.\n10. NO LICENSE GRANTED\nNo license or conveyance of any rights to either party under any discoveries, inventions, patents, trade secrets, copyrights, or other form of\nintellectual property is granted or implied by the exchange of Proprietary Information between the parties.\n11. APPLICABLE LAW\nThis agreement shall be governed by and interpreted solely in accordance with the laws of the State of Florida.\n12.\nUNITED STATES GOVERNMENT REGULATIONS\nThe parties and their employees shall not use or disclose any Proprietary Information or other information furnished hereunder in any manner\ncontrary to the laws and regulations of the United States of America, or any agency thereof, including but not limited to the Export\nAdministration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S. Department of\nState, and the Industrial Security Manual for Safeguarding Classified Information of the Department of Defense.\n13. ASSIGNABILITY\nExcept for a sale or transfer of the business to which this Agreement relates, the rights of the Parties under this Agreement may not be assigned\nor transferred to any person, or entity without the express prior written consent of the other Party, which consent will not be unreasonably\nwithheld. Any purported assignment without express prior written consent will be void.\n14. ENTIRE AGREEMENT\nThis Agreement contains the entire understanding between the Parties relative to the protection of Proprietary Information to be exchanged\nbetween the, and supersedes all prior and collateral communications, reports, and understandings between the Parties. No change,\nmodification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives\nAerosonic NDA September 2011\n3\nof the Parties. This Agreement shall apply in lieu of and notwithstanding any specific legend or statement associated with any Proprietary\nInformation exchanged, and the duties of the Parties shall be determined exclusively by the Agreement. If any portion of the Agreement is held\nto be invalid, such decision shall not affect the validity of the remaining portions.\nIN WITNESS whereof the parties have caused this Agreement to be duly executed by their duly authorized representatives on the day and year first\nabove written\nAEROSONIC CORPORATION\nTRANSDIGM GROUP\nINCORPORATED\nLOGO\nAerosonic NDA September 2011\n4	EX-99.(E).(14) 4 d525547dex99e14.htm NON DISCLOSURE AGREEMENT DATED AUG. 1, 2012\nExhibit (e)(14)\nLOGO\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into as of August 1, 2012, by and between AEROSONIC CORPORATION having its primary place of business at\n1212 North Hercules Avenue, Clearwater, Florida (hereinafter referred to as Aerosonic or DISCLOSING PARTY) and TransDigm Group\nIncorporated having its place of business at 1301 East 9th Street, Suite 3000, Cleveland, OH 44114 (hereinafter referred to as TRANSDIGM or\nRECEIVING PARTY).\n1. PURPOSE\nThe purpose of this Agreement is to set forth the rights and obligations of the parties with respect to the use, handling, protection, and\nsafeguarding of Proprietary Information which is disclosed by and between the parties.\n2. DEFINITION\nProprietary Information is defined as technical data and other information (including but not limited to descriptions, drawings, compositions,\nbusiness and financial information, technology development plans or strategies, and computer software) in whatever form and concerning any\ntopic, which is identified as proprietary by the disclosing party in accordance with the following guidelines:\nA. When disclosed in writing, Proprietary Information will be clearly and conspicuously marked by appropriate stamp or legend by the\ndisclosing party as Proprietary Information;\nB. When disclosed orally or visually, Proprietary Information will be immediately identified as Proprietary Information, and within thirty\n(30) days of disclosure, the disclosing party will summarize the oral or visual disclosure in written form, mark it as proprietary, and\ndelivery it to the receiving party;\nC. When disclosed in the form of magnetic recording or some other machine-readable form, Proprietary information will be identified as\nProprietary Information when transmitted, if possible, the container and form of the information will be clearly and conspicuously\nmarked by the disclosing party as proprietary. Within thirty (30) days after disclosure, the disclosing party will confirm the disclosure\nand specifically identify the Proprietary Information disclosed. Any physical embodiment of such information will be clearly and\nconspicuously marked as proprietary to the disclosing party.\n3. TERM\nThis Agreement shall terminate two years after the date first entered. Provided, however this Agreement may be terminated by either party at\nany time by giving thirty (30) days written notice of termination to the other party. Notwithstanding any such termination, the requirements\nspecified in Article 5 herein below shall continue to be binding upon the parties thereafter. All proprietary action, samples and models, if any,\nexchanged hereunder shall remain the property of the Disclosing Party and shall be returned to it or destroyed within thirty (30) days at the\nrequest and instruction of the Disclosing Party should such information no longer be required by the Receiving Party, or upon termination or\nexpiration of this Agreement together with all copies made thereof by the Receiving Party hereunder. Upon request, the\nAerosonic NDA September 2011\n1\nReceiving Party shall promptly send the Disclosing Party a destruction certificate. Notwithstanding the foregoing, the Receiving Party may\nretain one copy of an information obtained hereunder solely for use in connection with the determination or resolution of a dispute between the\nparties. Any such information retained by the Receiving Party shall remain subject to the terms of this Agreement.\n4. POINTS OF CONTACT\nThe primary points of contact with respect to the transmission and control of Proprietary Information disclosed under this Agreement are:\nFor: AEROSONIC CORPORATION\nFor: TRANSDIGM\nName: Mark Perkins\nName: Bemt Iversen II\nPhone: 727-461 -3000\nPhone: 864-843-5365\nEach Party may change its point of contact by written notice to the other Party.\n5. LIMITATIONS ON USE AND DISCLOSURE OF PROPRIETARY INFORMATION\nA. Proprietary Information disclosed by either party may be used by the Receiving Party solely in furtherance of projects or a transaction\nwith the Disclosing Party and shall not otherwise be used for the benefit of the recipient or others.\nB. Proprietary Information shall not be copied or reproduced by the Receiving Party without the express written permission of the\nDisclosing Party, except for such copies as may be reasonably required for accomplishment of the purpose stated above.\nC. Proprietary Information shall be disclosed only to employees and agents of the Receiving Party who have a “need to know” in\nconnection with the purpose stated above and have agreed to be bound by the terms hereof. The Receiving Party agrees that it will not\ndisclose Proprietary Information of the other Parties to third parties, other than its agents, unless and until expressly authorized in writing\nby the Disclosing Party.\nD. This Agreement shall not restrict disclosure or use of the Proprietary Information which:\n(1) was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this Agreement by\nthe Receiving Party, and only after such information enters the public domain; or\n(2) was, at the time of receipt, otherwise known to the Receiving Party without restrictions as to use or disclosure; or\n(3) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the\nReceiving Party; or\n(4) is developed independently by the Receiving Party without the use of Proprietary Information disclosed to it hereunder; or\n(5) is disclosed more than ten (10) years after it is first received hereunder.\n6. PROHIBITION ON INSIDER TRADING\nDuring the exchange of information covered by this Agreement, the Receiving Party and its employees and agents may have access to or learn\nof certain information which is material in nature with regard to the Disclosing Party’s financial performance or prospects, as well as the status\nof a potential transaction, which information is not publically known. The Receiving Party acknowledges, and will so advise its employees and\nagents, that acting on such information for fiduciary gain is prohibited by applicable law and regulations.\nAerosonic NDA September 2011\n2\n7. LIABILITY FOR INADVERTENT USE\nNeither party shall be liable for the inadvertent or accidental use or disclosure of information identified as proprietary, provided such use or\ndisclosure occurs despite the exercise of the same degree of care as that party normally takes to safeguard and preserve its own similar\nProprietary Information, provided such degree of care is no less than reasonable.\n8. WARRANTY\nNEITHER PARTY MAKES ANY WARRANTY, GUARANTEE, OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH\nRESPECT TO ANY OF THE PROPRIETARY INFORMATION DISCLOSED HEREUNDER. NEITHER PARTY SHALL BE LIABLE IN\nDAMAGES, OF WHATEVER KIND, AS A RESULT OF THE OTHER PARTY’S RELIANCE ON OR USE OF THE INFORMATION\nPROVIDED HEREUNDER.\n9. NO FORMAL BUSINESS OBLIGATIONS\nThis Agreement shall not constitute, create, give effect to or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of\nany party to submit a proposal or perform a contract with any other party. Nothing herein shall be construed as providing for the sharing of\nprofits or losses arising out of the efforts of either or both parties. Neither party will be liable to the other for any of the costs associated with\nthe other’s efforts in connection with this Agreement.\n10. NO LICENSE GRANTED\nNo license or conveyance of any rights to either party under any discoveries, inventions, patents, trade secrets, copyrights, or other form of\nintellectual property is granted or implied by the exchange of Proprietary Information between the parties.\n11. APPLICABLE LAW\nThis agreement shall be governed by and interpreted solely in accordance with the laws of the State of Florida.\n12. UNITED STATES GOVERNMENT REGULATIONS\nThe parties and their employees shall not use or disclose any Proprietary Information or other information furnished hereunder in any manner\ncontrary to the laws and regulations of the United States of America, or any agency thereof, including but not limited to the Export\nAdministration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S . Department of\nState, and the Industrial Security Manual for Safeguarding Classified Information of the Department of Defense.\n13. ASSIGNABILITY\nExcept for a sale or transfer of the business to which this Agreement relates, the rights of the Parties under this Agreement may not be assigned\nor transferred to any person, or entity without the express prior written consent of the other Party, which consent will not be unreasonably\nwithheld. Any purported assignment without express prior written consent will be void.\n14. ENTIRE AGREEMENT\nThis Agreement contains the entire understanding between the Parties relative to the protection of Proprietary Information to be exchanged\nbetween the, and supersedes all prior and collateral communications, reports, and understandings between the Parties. No change,\nmodification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives\nAerosonic NDA September 2011\n3\nof the Parties. This Agreement shall apply in lieu of and notwithstanding any specific legend or statement associated with any Proprietary\nInformation exchanged, and the duties of the Parties shall be determined exclusively by the Agreement. If any portion of the Agreement is held\nto be invalid, such decision shall not affect the validity of the remaining portions.\nIN WITNESS whereof the parties have caused this Agreement to be duly executed by their duly authorized representatives on the day and year first\nabove written.\nAEROSONIC CORPORATION\nTRANSDIGM GROUP\nINCORPORATED\nLOGO\nAerosonic NDA September 2011\n4
21fe1db5dd403579a003316a848581d5.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 12 d26631_ex99-d3.htm\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of July 22, 2008, and is made by and between North American Galvanizing\n& Coating, Inc. (“North American”) and AZZ incorporated (“AZZ”). North American and AZZ are sometimes herein collectively referred to as the\n“Parties” and each, a “Party”. In its capacity as a Party receiving Confidential Information, as that term is hereinafter defined, a Party may be\nreferred to herein as a “Receiving Party”; in its capacity as a Party disclosing Confidential Information, a Party may be referred to herein as a\n“Disclosing Party”.\n1. Confidential Information, Representatives. The Parties are considering entering into a possible transaction (the “Transaction”), and\nin order to assist the other Party in evaluating the possible Transaction, each Party is prepared to make available to the other Party certain\nconfidential, non-public or proprietary information concerning its and/or its affiliates’ and/or subsidiaries’ businesses, plans, operations and assets\n(any and all such information provided to a Receiving Party by or on behalf a Disclosing Party, its affiliates or subsidiaries regardless of the manner\nin which such is provided, together with all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof is herein referred to as the “Confidential Information”). As a condition to the Confidential\nInformation being furnished by each Party to the other Party and its affiliates, subsidiaries, directors, officers, partners, members, employees, agents,\nadvisors, attorneys, accountants, consultants and potential sources of capital or financing (collectively, “Representatives”), each Party agrees to treat\nthe Confidential Information provided to it by the other Party in accordance with the provisions of this Agreement and to take or abstain from taking\ncertain other actions hereinafter set forth.\n2.\nExcluded Information. The Confidential Information shall not include information that (i) is or becomes publicly available other\nthan as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (ii) is in the Receiving Party’s\npossession or the possession of any of its Representatives prior to disclosure by or on behalf of the Disclosing Party or is independently derived by\nthe Receiving Party or any of its Representatives without the aid, application or use of the Confidential Information, (iii) is disclosed to the\nReceiving Party or any of its Representatives by a third party on a non-confidential basis, or (iv) subject to compliance with paragraph 6 below, the\nReceiving Party or any of its Representatives is advised by counsel that it is required to be disclosed by applicable law, regulation or legal process.\n3.\nUse and Non-Disclosure of Confidential Information. The Receiving Party and its Representatives shall use the Confidential\nInformation provided to it by or on behalf of the Disclosing Party solely for the purpose of evaluating a possible Transaction. The Receiving Party\nshall keep the Confidential Information provided to it by the Disclosing Party confidential and shall not disclose any of the Confidential Information\nin any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential\nInformation provided to it by the Disclosing Party to which the Disclosing Party gives its prior written consent, and (ii) any information contained in\nthe Confidential Information provided by the Disclosing Party may be disclosed to the Receiving Party’s Representatives who reasonably require\naccess to such information for the purpose of evaluating a possible\n1\nTransaction and who agree to keep such information confidential. Each Party shall be responsible for any breach of the terms of this Agreement by\nany of its Representatives.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the other Party, or except as a Party is advised\nby counsel is required by applicable law, regulation or legal process, neither Party nor any of its Representatives shall (i) disclose to any other person\nthat it has received Confidential Information from the other Party, or (ii) disclose to any person that discussions or negotiations are taking place\nbetween the Parties concerning a possible Transaction, including the status of such discussions or negotiations.\n5.\nReturn of Confidential Information. Promptly upon the written request of the Disclosing Party, the Receiving Party shall return\nall copies of the Confidential Information provided by or on behalf of the Disclosing Party to the Disclosing Party, and all other Confidential\nInformation (including, without limitation, all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof or other documents prepared by the Receiving Party or its Representatives that contain or reflect\nsuch Confidential Information) shall be destroyed. Notwithstanding the foregoing, the Receiving Party and its Representatives may retain (subject to\nthe terms of this Agreement) copies of the Confidential Information to the extent that such retention is required by applicable law or regulation.\n6.\nSubpoena or Court Order. In the event that a Party or anyone to whom it discloses the Confidential Information provided to it by\nor on behalf of the Disclosing Party receives a request to disclose all or any part of the Confidential Information provided to it by or on behalf of the\nDisclosing Party pursuant to applicable law or regulation or under the terms of a subpoena or other order issued by a court of competent jurisdiction\nor by another governmental agency, such Party shall (provided that such is legally permitted) (i) promptly notify the Disclosing Party of the\nexistence, terms and circumstances surrounding such a request, (ii) consult with the Disclosing Party on the advisability of taking steps to resist or\nnarrow such request, (iii) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential Information as such\nParty is advised by counsel is legally required to be disclosed, and (iv) reasonably cooperate with the Disclosing Party in its efforts to obtain a\nprotective order to prevent the Confidential Information from being disclosed or such other order or other reliable assurance that confidential\ntreatment will be afforded to such portion of the Confidential Information that is required to be disclosed.\n7.\nDisclaimer of Warranty. None of the Parties or their Representatives have made or make any representation or warranty as to the\naccuracy or completeness of the Confidential Information provided to the other Party. The Parties and their Representatives shall have no liability to\neach other resulting from a Party’s use of the Confidential Information, except as may be expressly set forth in a definitive written agreement\nbetween the Parties with respect to a Transaction, in accordance with the terms thereof.\n8.\nDefinitive Agreement. Unless and until a definitive written agreement between the Parties with respect to a Transaction has been\nexecuted and delivered, neither Party shall be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this\nor any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n2\n9.\nApplicable Securities Laws. Each Party hereby acknowledges that some or all of the Confidential Information is likely to\nconstitute material, non-public information. Each Party hereby represents and warrants that it is aware (and that it shall advise its Representatives\nwho are not already aware) that United States and other applicable securities laws prohibit any person who has material, non-public information\nconcerning a publicly traded company or entity from purchasing or selling securities of such company or entity, or from communicating such\ninformation to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such\nsecurities. Each Party hereby agrees to fully comply with all applicable securities laws.\n10. Standstill. For a period of one (1) year from the date of this Agreement, each Party agrees that it shall not, and that it shall cause is\naffiliates and subsidiaries who have received the other Party’s Confidential Information, or who are aware of the possibility of the Transaction, not\nto, directly or indirectly, unless specifically invited in advance by the other Party’s Board of Directors: (i) acquire or agree, offer, seek or propose to\nacquire, or sell or otherwise dispose of, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities\nExchange Act of 1934) of any of the other Party’s assets or businesses or any securities issued by such other Party, or any rights or options to acquire\nsuch ownership (including from a third party), (ii) seek or propose to influence or control of the other Party’s management or policies (or request\npermission to do so), or (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing.\n11.\nNo Unauthorized Contact or Solicitation by AZZ. During the course of AZZ’s evaluation of the Transaction, all inquiries and\nother communications are to be made directly to employees or representatives of North American specified by North American. Accordingly, AZZ\nagrees not to directly or indirectly contact or communicate with any executive or other employee of North American concerning the Transaction, or\nto seek any information in connection therewith from such person, without the consent of North American. AZZ also agrees not to discuss with or\noffer to any third party an equity participation in the Transaction or any other form of joint acquisition without the prior written consent of AZZ.\nFor a period of two (2) years after the date hereof, without the prior written consent of North American, neither AZZ nor any of its\naffiliates, whom AZZ has made aware of this Agreement or to whom AZZ has disclosed Confidential Information, shall, directly or indirectly, in any\nindividual, representative or other capacity, employ or engage, or solicit for employment or engagement, any employee of, or any person whose\nactivities are principally dedicated to, North American whom AZZ is made aware of or who AZZ has direct contact with as a result of AZZ’s\nconsideration of the Transaction or otherwise seek to influence or alter any such person’s relationship with North American; provided, however, that\nthe foregoing shall not prohibit AZZ from: (i) general advertising not directed toward employees of North American or hiring employees responding\nto such advertising; (ii) hiring any person who initiates discussions with AZZ regarding employment without any direct or indirect solicitation by\nAZZ or; (iii) hiring any person whose employment with North American has been terminated (by either that employee or North American) prior to\nand independent of any communication with AZZ or any of AZZ’s representatives or agents regarding employment. If the foregoing provision shall\nbe adjudicated to be invalid or unenforceable, such provision shall be amended to reduce the time period or\n3\notherwise amended as is necessary to cause such provision to be valid or enforceable, and such amendment shall apply only with respect to the\noperation of this provision in the particular jurisdiction in which such adjudication is made.\n12.\nRemedies. Each Party acknowledges that in the event of any breach of the terms of this Agreement, the other Party could not be\nmade whole by monetary damages. Accordingly, each Party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to an injunction to prevent breaches of this Agreement, and to an order compelling specific performance of this Agreement. A breaching\nParty shall reimburse the other Party for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred by the other Party in the\nevent it successfully enforces the obligations of the breaching Party or its Representatives hereunder.\n13.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties with respect to the matters\ncontained herein, and may be modified or waived only by a separate writing executed by the Parties, expressly so modifying or waiving this\nAgreement.\n14.\nNo Waiver. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof,\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n15.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without\nregard to the laws of conflict of laws.\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to\nbe an original, but all of such counterparts shall together constitute one and the same instrument. It is not necessary that each party to this Agreement\nexecute the same counterpart, so long as identical counterparts are executed by all parties to this Agreement. This Agreement may be delivered by\nfacsimile or other reliable electronic means.\n18. Term. Except with regard to paragraph 10, this Agreement shall expire two (2) years from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n4\nTHIS AGREEMENT is executed and delivered effective as of the date first written above.\nAZZ:\nAZZ INCORPORATED\nBy:\n/s/ David H. Dingus\nName: David H. Dingus\nTitle:\nPresident and CEO\nNorth American:\nNORTH AMERICAN GALVANIZING\n& COATING, INC.\nBy:\n/s/ Ronald J. Evans\nName: Ronald J. Evans\nTitle:\nPresident and CEO\nSignature Page to Confidentiality Agreement	EX-99.(D)(3) 12 d26631_ex99-d3.htm\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of July 22, 2008, and is made by and between North American Galvanizing\n& Coating, Inc. (“North American”) and AZZ incorporated (“AZZ”). North American and AZZ are sometimes herein collectively referred to as the\n“Parties” and each, a “Party”. In its capacity as a Party receiving Confidential Information, as that term is hereinafter defined, a Party may be\nreferred to herein as a “Receiving Party”; in its capacity as a Party disclosing Confidential Information, a Party may be referred to herein as a\n“Disclosing Party”.\n1. Confidential Information, Representatives. The Parties are considering entering into a possible transaction (the “Iransaction”), and\nin order to assist the other Party in evaluating the possible Transaction, each Party is prepared to make available to the other Party certain\nconfidential, non-public or proprietary information concerning its and/or its affiliates’ and/or subsidiaries’ businesses, plans, operations and assets\n(any and all such information provided to a Receiving Party by or on behalf a Disclosing Party, its affiliates or subsidiaries regardless of the manner\nin which such is provided, together with all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof is herein referred to as the “Confidential Information”). As a condition to the Confidential\nInformation being furnished by each Party to the other Party and its affiliates, subsidiaries, directors, officers, partners, members, employees, agents,\nadvisors, attorneys, accountants, consultants and potential sources of capital or financing (collectively, “Representatives”), each Party agrees to treat\nthe Confidential Information provided to it by the other Party in accordance with the provisions of this Agreement and to take or abstain from taking\ncertain other actions hereinafter set forth.\n \n2. Excluded Information. The Confidential Information shall not include information that (i) is or becomes publicly available other\nthan as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (ii) is in the Receiving Party’s\npossession or the possession of any of its Representatives prior to disclosure by or on behalf of the Disclosing Party or is independently derived by\nthe Receiving Party or any of its Representatives without the aid, application or use of the Confidential Information, (iii) is disclosed to the\nReceiving Party or any of its Representatives by a third party on a non-confidential basis, or (iv) subject to compliance with paragraph 6 below, the\nReceiving Party or any of its Representatives is advised by counsel that it is required to be disclosed by applicable law, regulation or legal process.\n3. Use and Non-Disclosure of Confidential Information. The Receiving Party and its Representatives shall use the Confidential\nInformation provided to it by or on behalf of the Disclosing Party solely for the purpose of evaluating a possible Transaction. The Receiving Party\nshall keep the Confidential Information provided to it by the Disclosing Party confidential and shall not disclose any of the Confidential Information\nin any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential\nInformation provided to it by the Disclosing Party to which the Disclosing Party gives its prior written consent, and (ii) any information contained in\nthe Confidential Information provided by the Disclosing Party may be disclosed to the Receiving Party’s Representatives who reasonably require\naccess to such information for the purpose of evaluating a possible\nTransaction and who agree to keep such information confidential. Each Party shall be responsible for any breach of the terms of this Agreement by\nany of its Representatives.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other Party, or except as a Party is advised\nby counsel is required by applicable law, regulation or legal process, neither Party nor any of its Representatives shall (i) disclose to any other person\nthat it has received Confidential Information from the other Party, or (ii) disclose to any person that discussions or negotiations are taking place\nbetween the Parties concerning a possible Transaction, including the status of such discussions or negotiations.\n5. Return of Confidential Information. Promptly upon the written request of the Disclosing Party, the Receiving Party shall return\nall copies of the Confidential Information provided by or on behalf of the Disclosing Party to the Disclosing Party, and all other Confidential\nInformation (including, without limitation, all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof or other documents prepared by the Receiving Party or its Representatives that contain or reflect\nsuch Confidential Information) shall be destroyed. Notwithstanding the foregoing, the Receiving Party and its Representatives may retain (subject to\nthe terms of this Agreement) copies of the Confidential Information to the extent that such retention is required by applicable law or regulation.\n6. Subpoena or Court Order. In the event that a Party or anyone to whom it discloses the Confidential Information provided to it by\nor on behalf of the Disclosing Party receives a request to disclose all or any part of the Confidential Information provided to it by or on behalf of the\nDisclosing Party pursuant to applicable law or regulation or under the terms of a subpoena or other order issued by a court of competent jurisdiction\nor by another governmental agency, such Party shall (provided that such is legally permitted) (i) promptly notify the Disclosing Party of the\nexistence, terms and circumstances surrounding such a request, (ii) consult with the Disclosing Party on the advisability of taking steps to resist or\nnarrow such request, (iii) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential Information as such\nParty is advised by counsel is legally required to be disclosed, and (iv) reasonably cooperate with the Disclosing Party in its efforts to obtain a\nprotective order to prevent the Confidential Information from being disclosed or such other order or other reliable assurance that confidential\ntreatment will be afforded to such portion of the Confidential Information that is required to be disclosed.\n7. Disclaimer of Warranty. None of the Parties or their Representatives have made or make any representation or warranty as to the\naccuracy or completeness of the Confidential Information provided to the other Party. The Parties and their Representatives shall have no liability to\neach other resulting from a Party’s use of the Confidential Information, except as may be expressly set forth in a definitive written agreement\nbetween the Parties with respect to a Transaction, in accordance with the terms thereof.\n8. Definitive Agreement. Unless and until a definitive written agreement between the Parties with respect to a Transaction has been\nexecuted and delivered, neither Party shall be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this\nor any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n9. Applicable Securities Laws. Each Party hereby acknowledges that some or all of the Confidential Information is likely to\nconstitute material, non-public information. Each Party hereby represents and warrants that it is aware (and that it shall advise its Representatives\nwho are not already aware) that United States and other applicable securities laws prohibit any person who has material, non-public information\nconcerning a publicly traded company or entity from purchasing or selling securities of such company or entity, or from communicating such\ninformation to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such\nsecurities. Each Party hereby agrees to fully comply with all applicable securities laws.\n10. Standstill. For a period of one (1) year from the date of this Agreement, each Party agrees that it shall not, and that it shall cause is\naffiliates and subsidiaries who have received the other Party’s Confidential Information, or who are aware of the possibility of the Transaction, not\nto, directly or indirectly, unless specifically invited in advance by the other Party’s Board of Directors: (i) acquire or agree, offer, seek or propose to\nacquire, or sell or otherwise dispose of, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities\nExchange Act of 1934) of any of the other Party’s assets or businesses or any securities issued by such other Party, or any rights or options to acquire\nsuch ownership (including from a third party), (ii) seek or propose to influence or control of the other Party’s management or policies (or request\npermission to do so), or (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing.\n11. No Unauthorized Contact or Solicitation by AZZ. During the course of AZZ’s evaluation of the Transaction, all inquiries and\nother communications are to be made directly to employees or representatives of North American specified by North American. Accordingly, AZZ\nagrees not to directly or indirectly contact or communicate with any executive or other employee of North American concerning the Transaction, or\nto seek any information in connection therewith from such person, without the consent of North American. AZZ also agrees not to discuss with or\noffer to any third party an equity participation in the Transaction or any other form of joint acquisition without the prior written consent of AZZ.\nFor a period of two (2) years after the date hereof, without the prior written consent of North American, neither AZZ nor any of its\naffiliates, whom AZZ has made aware of this Agreement or to whom AZZ has disclosed Confidential Information, shall, directly or indirectly, in any\nindividual, representative or other capacity, employ or engage, or solicit for employment or engagement, any employee of, or any person whose\nactivities are principally dedicated to, North American whom AZZ is made aware of or who AZZ has direct contact with as a result of AZZ’s\nconsideration of the Transaction or otherwise seek to influence or alter any such person’s relationship with North American; provided, however, that\nthe foregoing shall not prohibit AZZ from: (i) general advertising not directed toward employees of North American or hiring employees responding\nto such advertising; (ii) hiring any person who initiates discussions with AZZ regarding employment without any direct or indirect solicitation by\nAZZ or; (iii) hiring any person whose employment with North American has been terminated (by either that employee or North American) prior to\nand independent of any communication with AZZ or any of AZZ’s representatives or agents regarding employment. If the foregoing provision shall\nbe adjudicated to be invalid or unenforceable, such provision shall be amended to reduce the time period or\n \notherwise amended as is necessary to cause such provision to be valid or enforceable, and such amendment shall apply only with respect to the\noperation of this provision in the particular jurisdiction in which such adjudication is made.\n12. Remedies. Each Party acknowledges that in the event of any breach of the terms of this Agreement, the other Party could not be\nmade whole by monetary damages. Accordingly, each Party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to an injunction to prevent breaches of this Agreement, and to an order compelling specific performance of this Agreement. A breaching\nParty shall reimburse the other Party for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred by the other Party in the\nevent it successfully enforces the obligations of the breaching Party or its Representatives hereunder.\n13. Entire Agreement. This Agreement represents the entire understanding and agreement of the Parties with respect to the matters\ncontained herein, and may be modified or waived only by a separate writing executed by the Parties, expressly so modifying or waiving this\nAgreement.\n14. No Waiver. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof,\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n15. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without\nregard to the laws of conflict of laws.\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to\nbe an original, but all of such counterparts shall together constitute one and the same instrument. It is not necessary that each party to this Agreement\nexecute the same counterpart, so long as identical counterparts are executed by all parties to this Agreement. This Agreement may be delivered by\nfacsimile or other reliable electronic means.\n18. Term. Except with regard to paragraph 10, this Agreement shall expire two (2) years from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n4\nTHIS AGREEMENT is executed and delivered effective as of the date first written above.\nAZ7Z:\nAZZ7Z INCORPORATED\nBy: /s/ David H. Dingus\nName: David H. Dingus\nTitle:  President and CEO\nNorth American:\nNORTH AMERICAN GALVANIZING\n& COATING, INC.\nBy: /s/ Ronald J. Evans\nName: RonaldJ. Evans\nTitle: President and CEO\nSignature Page to Confidentiality Agreement	EX-99.(D)(3) 12 126631ex99-d3.htm\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is dated as of July 22, 2008, and is made by and between North American Galvanizing\n& Coating, Inc. ("North American") and AZZ incorporated ("AZZ"). North American and AZZ are sometimes herein collectively referred to as the\n"Parties" and each, a "Party.". In its capacity as a Party receiving Confidential Information, as that term is hereinafter defined, a Party may be\nreferred to herein as a "Receiving Party."; in its capacity as a Party disclosing Confidential Information, a Party may be referred to herein as a\n"Disclosing Party.".\n1.\nConfidential Information, Representatives. The Parties are considering entering into a possible transaction (the "Transaction"), and\nin\norder to assist the other Party in evaluating the possible Transaction, each Party is prepared to make available to the other Party certain\nconfidential, non-public or proprietary information concerning its and/or its affiliates' and/or subsidiaries' businesses, plans, operations and assets\n(any and all such information provided to a Receiving Party by or on behalf a Disclosing Party, its affiliates or subsidiaries regardless of the manner\nin which such is provided, together with all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof is herein referred to as the "Confidential Information"). As a condition to the Confidential\nInformation being furnished by each Party to the other Party and its affiliates, subsidiaries, directors, officers, partners, members, employees, agents,\nadvisors, attorneys, accountants, consultants and potential sources of capital or financing (collectively, "Representatives"), each Party agrees to treat\nthe Confidential Information provided to it by the other Party in accordance with the provisions of this Agreement and to take or abstain from taking\ncertain other actions hereinafter set forth.\n2.\nExcluded Information. The Confidential Information shall not include information that (i) is or becomes publicly available other\nthan as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (ii) is in the Receiving Party's\npossession or the possession of any of its Representatives prior to disclosure by or on behalf of the Disclosing Party or is independently derived\nby\nthe Receiving Party or any of its Representatives without the aid, application or use of the Confidential Information, (iii) is disclosed to the\nReceiving Party or any of its Representatives by a third party on a non-confidential basis, or (iv) subject to compliance with paragraph 6 below,\nthe\nReceiving Party or any of its Representatives is advised by counsel that it is required to be disclosed by applicable law, regulation or legal process.\n3.\nUse and Non-Disclosure of Confidential Information. The Receiving Party and its Representatives shall use the Confidential\nInformation\nprovided\nto\nit\nby\nor\non\nbehalf\nof\nthe\nDisclosing\nParty\nsolely\nfor\nthe\npurpose\nof\nevaluating\na\npossible\nTransaction.\nThe\nReceiving\nParty\nshall keep the Confidential Information provided to it by the Disclosing Party confidential and shall not disclose any of the Confidential Information\nin\nany manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential\nInformation provided to it by the Disclosing Party to which the Disclosing Party gives its prior written consent, and (ii) any information contained in\nthe Confidential Information provided by the Disclosing Party may be disclosed to the Receiving Party's Representatives who reasonably require\naccess to such information for the purpose of evaluating a possible\n1\nTransaction and who agree to keep such information confidential. Each Party shall be responsible for any breach of the terms of this Agreement by\nany of its Representatives.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the other Party, or except as a Party is advised\nby counsel is required by applicable law, regulation or legal process, neither Party nor any of its Representatives shall (i) disclose to any other person\nthat it has received Confidential Information from the other Party, or (ii) disclose to any person that discussions or negotiations are taking place\nbetween the Parties concerning a possible Transaction, including the status of such discussions or negotiations.\n5.\nReturn of Confidential Information. Promptly upon the written request of the Disclosing Party, the Receiving Party shall\nreturn\nall copies of the Confidential Information provided by or on behalf of the Disclosing Party to the Disclosing Party, and all other Confidential\nInformation (including, without limitation, all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof or other documents prepared by the Receiving Party or its Representatives that contain or reflect\nsuch Confidential Information) shall be destroyed. Notwithstanding the foregoing, the Receiving Party and its Representatives may retain (subject to\nthe terms of this Agreement) copies of the Confidentia Information to the extent that such retention is required by applicable law or regulation.\n6.\nSubpoena or Court Order. In the event that a Party or anyone to whom it discloses the Confidential Information provided to it by\nor on behalf of the Disclosing Party receives a request to disclose all or any part of the Confidential Information provided to it by or on behalf of the\nDisclosing Party pursuant to applicable law or regulation or under the terms of a subpoena or other order issued by a court of competent jurisdiction\nor by another governmental agency, such Party shall (provided that such is legally permitted) (i) promptly notify the Disclosing Party of the\nexistence, terms and circumstances surrounding such a request, (ii) consult with the Disclosing Party on the advisability of taking steps to resist or\nnarrow such request, (iii) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential Information as such\nParty is advised by counsel is legally required to be disclosed, and (iv) reasonably cooperate with the Disclosing Party in its efforts to obtain a\nprotective order to prevent the Confidential Information from being disclosed or such other order or other reliable assurance that confidential\ntreatment will be afforded to such portion of the Confidentia Information that is required to be disclosed.\n7.\nDisclaimer of Warranty. None of the Parties or their Representatives have made or make any representation or warranty as to the\naccuracy or completeness of the Confidential Information provided to the other Party. The Parties and their Representatives shall have no liability to\neach other resulting from a Party's use of the Confidential Information, except as may be expressly set forth in a definitive written agreement\nbetween the Parties with respect to a Transaction, in accordance with the terms thereof.\n8.\nDefinitive Agreement. Unless and until a definitive written agreement between the Parties with respect to a Transaction has been\nexecuted and delivered, neither Party shall be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this\nor any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n2\n9.\nApplicable Securities Laws. Each Party hereby acknowledges that some or all of the Confidential Information is likely to\nconstitute material, non-public information Each Party hereby represents and warrants that it is aware (and that it shall advise its Representatives\nwho are not already aware) that United States and other applicable securities laws prohibit any person who has material, non-public information\nconcerning a publicly traded company or entity from purchasing or selling securities of such company or entity, or from communicating such\ninformation to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such\nsecurities. Each Party hereby agrees to fully comply with all applicable securities laws.\n10.\nStandstill. For a period of one (1) year from the date of this Agreement, each Party agrees that it shall not, and that it shall cause is\naffiliates and subsidiaries who have received the other Party's Confidential Information, or who are aware of the possibility of the Transaction, not\nto, directly or indirectly, unless specifically invited in advance by the other Party's Board of Directors: (i) acquire or agree, offer, seek or propose to\nacquire, or sell or otherwise dispose of, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities\nExchange Act of 1934) of any of the other Party's assets or businesses or any securities issued by such other Party, or any rights or options to acquire\nsuch ownership (including from a third party), (ii) seek or propose to influence or control of the other Party's management or policies (or request\npermission to do so), or (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing.\n11.\nNo Unauthorized Contact or Solicitation by AZZ. During the course of AZZ's evaluation of the Transaction, all inquiries and\nother communications are to be made directly to employees or representatives of North American specified by North American. Accordingly, AZZ\nagrees\nnot\nto\ndirectly\nor\nindirectly\ncontact\nor\ncommunicate\nwith\nany\nexecutive\nor\nother\nemployee\nof\nNorth\nAmerican\nconcerning\nthe\nTransaction,\nor\nto seek any information in connection therewith from such person, without the consent of North American. AZZ also agrees not to discuss with or\noffer to any third party an equity participation in the Transaction or any other form of joint acquisition without the prior written consent of AZZ.\nFor a period of two (2) years after the date hereof, without the prior written consent of North American, neither AZZ nor any of its\naffiliates, whom AZZ has made aware of this Agreement or to whom AZZ has disclosed Confidential Information, shall, directly or indirectly, in any\nindividual,\nrepresentative\nor\nother\ncapacity,\nemploy\nor\nengage,\nor\nsolicit\nfor\nemployment\nor\nengagement,\nany\nemployee\nof,\nor\nany\nperson\nwhose\nactivities are principally dedicated to, North American whom AZZ is made aware of or who AZZ has direct contact with as a result of AZZ's\nconsideration of the Transaction or otherwise seek to influence or alter any such person's relationship with North American; provided, however, that\nthe\nforegoing\nshall\nnot\nprohibit\nAZZ\nfrom:\n(i)\ngeneral\nadvertising\nnot\ndirected\ntoward\nemployees\nof\nNorth\nAmerican\nor\nhiring\nemployees\nresponding\nto such advertising; (ii) hiring any person who initiates discussions with AZZ regarding employment without any direct or indirect solicitation by\nAZZ or; (iii) hiring any person whose employment with North American has been terminated (by either that employee or North American) prior to\nand independent of any communication with AZZ or any of AZZ's representatives or agents regarding employment. If the foregoing provision shall\nbe adjudicated to be invalid or unenforceable, such provision shall be amended to reduce the time period or\n3\notherwise amended as is necessary to cause such provision to be valid or enforceable, and such amendment shall apply only with respect to the\noperation of this provision in the particular jurisdiction in which such adjudication is made.\n12. Remedies. Each Party acknowledges that in the event of any breach of the terms of this Agreement, the other Party could not be\nmade whole by monetary damages. Accordingly, each Party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to an injunction to prevent breaches of this Agreement, and to an order compelling specific performance of this Agreement. A breaching\nParty shall reimburse the other Party for all reasonable costs and expenses, including reasonable attorneys' fees, incurred by the other Party in\nthe\nevent it successfully enforces the obligations of the breaching Party or its Representatives hereunder.\n13.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties with respect to the matters\ncontained herein, and may be modified or waived only by a separate writing executed by the Parties, expressly so modifying or waiving this\nAgreement.\n14.\nNo Waiver. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof,\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n15.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without\nregard to the laws of conflict of laws.\n16.\nCaptions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to\nbe an original, but all of such counterparts shall together constitute one and the same instrument. It is not necessary that each party to this Agreement\nexecute the same counterpart, so long as identical counterparts are executed by all parties to this Agreement. This Agreement may be delivered by\nfacsimile or other reliable electronic means.\n18.\nTerm. Except with regard to paragraph 10, this Agreement shall expire two (2) years from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n4\nTHIS AGREEMENT is executed and delivered effective as of the date first written above.\nAZZ:\nAZZ INCORPORATED\nBy:\n/s/ David H. Dingus\nName: David H. Dingus\nTitle: President and CEO\nNorth American:\nNORTH AMERICAN GALVANIZING\n& COATING, INC.\nBy:\n/s/ Ronald J. Evans\nName: Ronald J. Evans\nTitle:\nPresident and CEO\nSignature Page to Confidentiality Agreement	EX-99.(D)(3) 12 d26631_ex99-d3.htm\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of July 22, 2008, and is made by and between North American Galvanizing\n& Coating, Inc. (“North American”) and AZZ incorporated (“AZZ”). North American and AZZ are sometimes herein collectively referred to as the\n“Parties” and each, a “Party”. In its capacity as a Party receiving Confidential Information, as that term is hereinafter defined, a Party may be\nreferred to herein as a “Receiving Party”; in its capacity as a Party disclosing Confidential Information, a Party may be referred to herein as a\n“Disclosing Party”.\n1. Confidential Information, Representatives. The Parties are considering entering into a possible transaction (the “Transaction”), and\nin order to assist the other Party in evaluating the possible Transaction, each Party is prepared to make available to the other Party certain\nconfidential, non-public or proprietary information concerning its and/or its affiliates’ and/or subsidiaries’ businesses, plans, operations and assets\n(any and all such information provided to a Receiving Party by or on behalf a Disclosing Party, its affiliates or subsidiaries regardless of the manner\nin which such is provided, together with all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof is herein referred to as the “Confidential Information”). As a condition to the Confidential\nInformation being furnished by each Party to the other Party and its affiliates, subsidiaries, directors, officers, partners, members, employees, agents,\nadvisors, attorneys, accountants, consultants and potential sources of capital or financing (collectively, “Representatives”), each Party agrees to treat\nthe Confidential Information provided to it by the other Party in accordance with the provisions of this Agreement and to take or abstain from taking\ncertain other actions hereinafter set forth.\n2.\nExcluded Information. The Confidential Information shall not include information that (i) is or becomes publicly available other\nthan as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (ii) is in the Receiving Party’s\npossession or the possession of any of its Representatives prior to disclosure by or on behalf of the Disclosing Party or is independently derived by\nthe Receiving Party or any of its Representatives without the aid, application or use of the Confidential Information, (iii) is disclosed to the\nReceiving Party or any of its Representatives by a third party on a non-confidential basis, or (iv) subject to compliance with paragraph 6 below, the\nReceiving Party or any of its Representatives is advised by counsel that it is required to be disclosed by applicable law, regulation or legal process.\n3.\nUse and Non-Disclosure of Confidential Information. The Receiving Party and its Representatives shall use the Confidential\nInformation provided to it by or on behalf of the Disclosing Party solely for the purpose of evaluating a possible Transaction. The Receiving Party\nshall keep the Confidential Information provided to it by the Disclosing Party confidential and shall not disclose any of the Confidential Information\nin any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential\nInformation provided to it by the Disclosing Party to which the Disclosing Party gives its prior written consent, and (ii) any information contained in\nthe Confidential Information provided by the Disclosing Party may be disclosed to the Receiving Party’s Representatives who reasonably require\naccess to such information for the purpose of evaluating a possible\n1\nTransaction and who agree to keep such information confidential. Each Party shall be responsible for any breach of the terms of this Agreement by\nany of its Representatives.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the other Party, or except as a Party is advised\nby counsel is required by applicable law, regulation or legal process, neither Party nor any of its Representatives shall (i) disclose to any other person\nthat it has received Confidential Information from the other Party, or (ii) disclose to any person that discussions or negotiations are taking place\nbetween the Parties concerning a possible Transaction, including the status of such discussions or negotiations.\n5.\nReturn of Confidential Information. Promptly upon the written request of the Disclosing Party, the Receiving Party shall return\nall copies of the Confidential Information provided by or on behalf of the Disclosing Party to the Disclosing Party, and all other Confidential\nInformation (including, without limitation, all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof or other documents prepared by the Receiving Party or its Representatives that contain or reflect\nsuch Confidential Information) shall be destroyed. Notwithstanding the foregoing, the Receiving Party and its Representatives may retain (subject to\nthe terms of this Agreement) copies of the Confidential Information to the extent that such retention is required by applicable law or regulation.\n6.\nSubpoena or Court Order. In the event that a Party or anyone to whom it discloses the Confidential Information provided to it by\nor on behalf of the Disclosing Party receives a request to disclose all or any part of the Confidential Information provided to it by or on behalf of the\nDisclosing Party pursuant to applicable law or regulation or under the terms of a subpoena or other order issued by a court of competent jurisdiction\nor by another governmental agency, such Party shall (provided that such is legally permitted) (i) promptly notify the Disclosing Party of the\nexistence, terms and circumstances surrounding such a request, (ii) consult with the Disclosing Party on the advisability of taking steps to resist or\nnarrow such request, (iii) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential Information as such\nParty is advised by counsel is legally required to be disclosed, and (iv) reasonably cooperate with the Disclosing Party in its efforts to obtain a\nprotective order to prevent the Confidential Information from being disclosed or such other order or other reliable assurance that confidential\ntreatment will be afforded to such portion of the Confidential Information that is required to be disclosed.\n7.\nDisclaimer of Warranty. None of the Parties or their Representatives have made or make any representation or warranty as to the\naccuracy or completeness of the Confidential Information provided to the other Party. The Parties and their Representatives shall have no liability to\neach other resulting from a Party’s use of the Confidential Information, except as may be expressly set forth in a definitive written agreement\nbetween the Parties with respect to a Transaction, in accordance with the terms thereof.\n8.\nDefinitive Agreement. Unless and until a definitive written agreement between the Parties with respect to a Transaction has been\nexecuted and delivered, neither Party shall be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this\nor any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n2\n9.\nApplicable Securities Laws. Each Party hereby acknowledges that some or all of the Confidential Information is likely to\nconstitute material, non-public information. Each Party hereby represents and warrants that it is aware (and that it shall advise its Representatives\nwho are not already aware) that United States and other applicable securities laws prohibit any person who has material, non-public information\nconcerning a publicly traded company or entity from purchasing or selling securities of such company or entity, or from communicating such\ninformation to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such\nsecurities. Each Party hereby agrees to fully comply with all applicable securities laws.\n10. Standstill. For a period of one (1) year from the date of this Agreement, each Party agrees that it shall not, and that it shall cause is\naffiliates and subsidiaries who have received the other Party’s Confidential Information, or who are aware of the possibility of the Transaction, not\nto, directly or indirectly, unless specifically invited in advance by the other Party’s Board of Directors: (i) acquire or agree, offer, seek or propose to\nacquire, or sell or otherwise dispose of, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities\nExchange Act of 1934) of any of the other Party’s assets or businesses or any securities issued by such other Party, or any rights or options to acquire\nsuch ownership (including from a third party), (ii) seek or propose to influence or control of the other Party’s management or policies (or request\npermission to do so), or (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing.\n11.\nNo Unauthorized Contact or Solicitation by AZZ. During the course of AZZ’s evaluation of the Transaction, all inquiries and\nother communications are to be made directly to employees or representatives of North American specified by North American. Accordingly, AZZ\nagrees not to directly or indirectly contact or communicate with any executive or other employee of North American concerning the Transaction, or\nto seek any information in connection therewith from such person, without the consent of North American. AZZ also agrees not to discuss with or\noffer to any third party an equity participation in the Transaction or any other form of joint acquisition without the prior written consent of AZZ.\nFor a period of two (2) years after the date hereof, without the prior written consent of North American, neither AZZ nor any of its\naffiliates, whom AZZ has made aware of this Agreement or to whom AZZ has disclosed Confidential Information, shall, directly or indirectly, in any\nindividual, representative or other capacity, employ or engage, or solicit for employment or engagement, any employee of, or any person whose\nactivities are principally dedicated to, North American whom AZZ is made aware of or who AZZ has direct contact with as a result of AZZ’s\nconsideration of the Transaction or otherwise seek to influence or alter any such person’s relationship with North American; provided, however, that\nthe foregoing shall not prohibit AZZ from: (i) general advertising not directed toward employees of North American or hiring employees responding\nto such advertising; (ii) hiring any person who initiates discussions with AZZ regarding employment without any direct or indirect solicitation by\nAZZ or; (iii) hiring any person whose employment with North American has been terminated (by either that employee or North American) prior to\nand independent of any communication with AZZ or any of AZZ’s representatives or agents regarding employment. If the foregoing provision shall\nbe adjudicated to be invalid or unenforceable, such provision shall be amended to reduce the time period or\n3\notherwise amended as is necessary to cause such provision to be valid or enforceable, and such amendment shall apply only with respect to the\noperation of this provision in the particular jurisdiction in which such adjudication is made.\n12.\nRemedies. Each Party acknowledges that in the event of any breach of the terms of this Agreement, the other Party could not be\nmade whole by monetary damages. Accordingly, each Party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to an injunction to prevent breaches of this Agreement, and to an order compelling specific performance of this Agreement. A breaching\nParty shall reimburse the other Party for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred by the other Party in the\nevent it successfully enforces the obligations of the breaching Party or its Representatives hereunder.\n13.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties with respect to the matters\ncontained herein, and may be modified or waived only by a separate writing executed by the Parties, expressly so modifying or waiving this\nAgreement.\n14.\nNo Waiver. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof,\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n15.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without\nregard to the laws of conflict of laws.\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to\nbe an original, but all of such counterparts shall together constitute one and the same instrument. It is not necessary that each party to this Agreement\nexecute the same counterpart, so long as identical counterparts are executed by all parties to this Agreement. This Agreement may be delivered by\nfacsimile or other reliable electronic means.\n18. Term. Except with regard to paragraph 10, this Agreement shall expire two (2) years from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n4\nTHIS AGREEMENT is executed and delivered effective as of the date first written above.\nAZZ:\nAZZ INCORPORATED\nBy:\n/s/ David H. Dingus\nName: David H. Dingus\nTitle:\nPresident and CEO\nNorth American:\nNORTH AMERICAN GALVANIZING\n& COATING, INC.\nBy:\n/s/ Ronald J. Evans\nName: Ronald J. Evans\nTitle:\nPresident and CEO\nSignature Page to Confidentiality Agreement
22526e24107177141dc9b66afed7106d.pdf	effective_date jurisdiction party term	EX-10.3 4 dex103.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.3\nCONFIDENTIALITY AGREEMENT\nAs a condition of my becoming a member of the Board of Directors of Interactive Data Corporation, a Delaware corporation (the\n“Company”), and in consideration of my service to the Company as a director and my receipt of the compensation now and hereafter paid to me by\nthe Company, I agree to the following:\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my service to the Company, I will have access to\ninformation about the Company and its direct and indirect parents and subsidiaries (collectively, the “Company Group”) and that my service to the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my service to the Company and for the ten (10) year period following my termination of service to the\nCompany Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to disclose to any person,\nfirm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or create. I further agree\nnot to make copies of such Confidential Information except as authorized by the Company. I understand that “Confidential Information” means\ninformation that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire, create, compile,\ndiscover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company wishes to maintain as\nconfidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual or\nanticipated business and/or products, research, or development of the Company, or to the Company’s technical data, trade secrets, or know-how,\nincluding, but not limited to, research, product plans, or other information regarding the Company’s products or services and markets, customer lists,\nand customers, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly in writing, orally, or by\ndrawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Confidential Information shall not\ninclude (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by me or others who were\nunder confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by, any governmental or\njudicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the Company Group may seek\nan appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this Confidentiality Agreement\n(the “Confidentiality Agreement”).\n(b) Former or Concurrent Service Recipient Information. I represent that my performance of all of the terms of this\nConfidentiality Agreement as a director of the Company has not breached and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my service to the Company, and\nI will not disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or\nconfidential or proprietary information or material I may have obtained in connection with employment with or service to any prior or concurrent\nemployer or service recipient in violation of a confidentiality agreement, nondisclosure agreement, or similar agreement with such prior or\nconcurrent employer or service recipient.\nSection 2. Returning Company Group Documents.\nI agree that, at the time of termination of my service to the Company for any reason, I will deliver to the Company (and will not keep in\nmy possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty otherwise belonging to the Company. I agree further that any property situated on the Company’s premises and owned by the Company (or\nany other member of the Company Group), including disks and other storage media, filing cabinets, and other work areas, is subject to inspection by\npersonnel of any member of the Company Group at any time with or without notice.\nSection 3. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Confidentiality Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 4. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to Confidential Information renders\nme special and unique within the Company’s industry. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set\nforth in this Confidentiality Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to\nprotect the value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this\nConfidentiality Agreement will not materially interfere with my ability to earn a living following the termination of my service to the Company and\nthat my ability to earn a livelihood without violating such restrictions is a material condition to my service to the Company.\nSection 5. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Confidentiality Agreement shall be independent of the others and shall be in addition to and not in\nlieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Confidentiality Agreement\nor any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this\nConfidentiality Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to\nbe invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making such\ndetermination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope,\nand/or area permissible by law, and in its reduced form said provision shall then be enforceable.\n-2-\nSection 6. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Confidentiality\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief,\nspecific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of\nthis Confidentiality Agreement without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach.\nSection 7. Cooperation.\nI agree that, following any termination of my service to the Company, I will continue to provide reasonable cooperation (to the extent\nthat it does not materially interfere with any other employment obligations at that time) to the Company and/or any other member of the Company\nGroup and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation relating to any matter that\noccurred during my service to the Company in which I was involved or of which I have knowledge. As a condition of such cooperation, the\nCompany shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with this\nparagraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency) to give\ntestimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my service to the Company and/or any\nother member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the Company\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to such\ndisclosure.\nSection 8. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS CONFIDENTIALITY AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS CONFIDENTIALITY AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nTHE UNITED STATES DISTRICT COURT FOR THE STATE OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN DELAWARE, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS CONFIDENTIALITY AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND\n-3-\nWAIVE ANY RIGHT TO CHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR\nPROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT. EACH PARTY TO THIS\nCONFIDENTIALITY AGREEMENT ALSO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT,\nACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT.\n(b) Entire Agreement. This Confidentiality Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Confidentiality\nAgreement, nor any waiver of any rights under this Confidentiality Agreement, will be effective unless in writing signed by the party to be charged.\nAny subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Confidentiality\nAgreement.\n(c) No Right of Continued Service. I acknowledge and agree that nothing contained herein shall be construed as granting me any\nright to continued service to the Company, and the right of the Company to terminate my service at any time and for any reason, with or without\ncause, is specifically reserved.\n(d) Successors and Assigns. This Confidentiality Agreement will be binding upon my heirs, executors, administrators, and other\nlegal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nConfidentiality Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction.\n(e) Survival. The provisions of this Confidentiality Agreement shall survive the termination of my service to the Company and/or\nthe assignment of this Confidentiality Agreement by the Company to any successor in interest or other assignee.\n*\n*\n*\nI, Andrew Prozes, have executed this Confidentiality and Confidentiality Agreement on the respective date set forth below:\nDate: May 5, 2011\n/s/ Andrew Prozes\n(Signature)\nAndrew Prozes\n(Type/Print Name)\n-4-	EX-10.3 4 dex103.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.3\nCONFIDENTIALITY AGREEMENT\nAs a condition of my becoming a member of the Board of Directors of Interactive Data Corporation, a Delaware corporation (the\n“Company”), and in consideration of my service to the Company as a director and my receipt of the compensation now and hereafter paid to me by\nthe Company, I agree to the following:\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my service to the Company, I will have access to\ninformation about the Company and its direct and indirect parents and subsidiaries (collectively, the “Company Group”) and that my service to the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my service to the Company and for the ten (10) year period following my termination of service to the\nCompany Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to disclose to any person,\nfirm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or create. I further agree\nnot to make copies of such Confidential Information except as authorized by the Company. I understand that “Confidential Information” means\ninformation that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire, create, compile,\ndiscover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company wishes to maintain as\nconfidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual or\nanticipated business and/or products, research, or development of the Company, or to the Company’s technical data, trade secrets, or know-how,\nincluding, but not limited to, research, product plans, or other information regarding the Company’s products or services and markets, customer lists,\nand customers, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly in writing, orally, or by\ndrawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Confidential Information shall not\ninclude (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by me or others who were\nunder confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by, any governmental or\njudicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the Company Group may seek\nan appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this Confidentiality Agreement\n(the “Confidentiality Agreement”).\n(b) Former or Concurrent Service Recipient Information. I represent that my performance of all of the terms of this\nConfidentiality Agreement as a director of the Company has not breached and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my service to the Company, and\nI will not disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or\nconfidential or proprietary information or material I may have obtained in connection with employment with or service to any prior or concurrent\nemployer or service recipient in violation of a confidentiality agreement, nondisclosure agreement, or similar agreement with such prior or\nconcurrent employer or service recipient.\nSection 2. Returning Company Group Documents.\nI agree that, at the time of termination of my service to the Company for any reason, I will deliver to the Company (and will not keep in\nmy possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty otherwise belonging to the Company. I agree further that any property situated on the Company’s premises and owned by the Company (or\nany other member of the Company Group), including disks and other storage media, filing cabinets, and other work areas, is subject to inspection by\npersonnel of any member of the Company Group at any time with or without notice.\nSection 3. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Confidentiality Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 4. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to Confidential Information renders\nme special and unique within the Company’s industry. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set\nforth in this Confidentiality Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to\nprotect the value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this\nConfidentiality Agreement will not materially interfere with my ability to earn a living following the termination of my service to the Company and\nthat my ability to earn a livelihood without violating such restrictions is a material condition to my service to the Company.\nSection 5. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Confidentiality Agreement shall be independent of the others and shall be in addition to and not in\nlieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Confidentiality Agreement\nor any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this\nConfidentiality Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to\nbe invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making such\ndetermination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope,\nand/or area permissible by law, and in its reduced form said provision shall then be enforceable.\n_2-\nSection 6. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Confidentiality\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief,\nspecific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of\nthis Confidentiality Agreement without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach.\nSection 7. Cooperation.\nI agree that, following any termination of my service to the Company, I will continue to provide reasonable cooperation (to the extent\nthat it does not materially interfere with any other employment obligations at that time) to the Company and/or any other member of the Company\nGroup and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation relating to any matter that\noccurred during my service to the Company in which I was involved or of which I have knowledge. As a condition of such cooperation, the\nCompany shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with this\nparagraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency) to give\ntestimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my service to the Company and/or any\nother member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the Company\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to such\ndisclosure.\nSection 8. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS CONFIDENTIALITY AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS CONFIDENTIALITY AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nTHE UNITED STATES DISTRICT COURT FOR THE STATE OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN DELAWARE, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS CONFIDENTIALITY AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND\n_3-\nWAIVE ANY RIGHT TO CHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR\nPROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT. EACH PARTY TO THIS\nCONFIDENTIALITY AGREEMENT ALSO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT,\nACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT.\n(b) Entire Agreement. This Confidentiality Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Confidentiality\nAgreement, nor any waiver of any rights under this Confidentiality Agreement, will be effective unless in writing signed by the party to be charged.\nAny subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Confidentiality\nAgreement.\n \n(c) No Right of Continued Service. I acknowledge and agree that nothing contained herein shall be construed as granting me any\nright to continued service to the Company, and the right of the Company to terminate my service at any time and for any reason, with or without\ncause, is specifically reserved.\n(d) Successors and Assigns. This Confidentiality Agreement will be binding upon my heirs, executors, administrators, and other\nlegal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nConfidentiality Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction.\n(e) Survival. The provisions of this Confidentiality Agreement shall survive the termination of my service to the Company and/or\nthe assignment of this Confidentiality Agreement by the Company to any successor in interest or other assignee.\n* * *\nI, Andrew Prozes, have executed this Confidentiality and Confidentiality Agreement on the respective date set forth below:\nDate: May 5, 2011 /s/ Andrew Prozes\n(Signature)\nAndrew Prozes\n(Type/Print Name)	EX-10.3 4 lex103.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.3\nCONFIDENTIALITY AGREEMENT\nAs a condition of my becoming a member of the Board of Directors of Interactive Data Corporation, a Delaware corporation (the\n"Company."), and in consideration of my service to the Company as a director and my receipt of the compensation now and hereafter paid to me by\nthe Company, I agree to the following:\nSection 1. Confidential Information.\n(a) Company. Group Information. I acknowledge that, during the course of my service to the Company, I will have access to\ninformation about the Company and its direct and indirect parents and subsidiaries (collectively, the "Company Group") and that my service to the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my service to the Company and for the ten (10) year period following my termination of service to the\nCompany Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to disclose to any person,\nfirm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or create. I further agree\nnot to make copies of such Confidential Information except as authorized by the Company. I understand that "Confidential Information" means\ninformation that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire, create, compile,\ndiscover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company wishes to maintain as\nconfidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual or\nanticipated business and/or products, research, or development of the Company, or to the Company's technical data, trade secrets, or know-how,\nincluding, but not limited to, research, product plans, or other information regarding the Company's products or services and markets, customer lists,\nand customers, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly in writing, orally, or\nby\ndrawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Confidential Information shall\nnot\ninclude (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by me or others who were\njudicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the Company Group may seek or\nunder confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by, any governmental\nan appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this Confidentiality Agreement\n(the "Confidentiality Agreement").\n(b) Former or Concurrent Service Recipient Information. I represent that my performance of all of the terms of this\nConfidentiality Agreement as a director of the Company has not breached and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my service to the Company,\nand\nI will not disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or\nconfidential or proprietary information or material I may have obtained in connection with employment with or service to any prior or concurrent\nemployer or service recipient in violation of a confidentiality agreement, nondisclosure agreement, or similar agreement with such prior or\nconcurrent employer or service recipient.\nSection 2. Returning Company Group Documents.\nI agree that, at the time of termination of my service to the Company for any reason, I will deliver to the Company (and will not keep in\nmy possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty otherwise belonging to the Company. I agree further that any property situated on the Company's premises and owned by the Company (or\nany other member of the Company Group), including disks and other storage media, filing cabinets, and other work areas, is subject to inspection\nby\npersonnel of any member of the Company Group at any time with or without notice.\nSection 3. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Confidentiality Agreement to any prospective employer, partner, CO-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 4. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company's business, that access to Confidential Information renders\nme special and unique within the Company's industry. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set\nforth in this Confidentiality Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to\nprotect the value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this\nConfidentiality Agreement will not materially interfere with my ability to earn a living following the termination of my service to the Company and\nthat my ability to earn a livelihood without violating such restrictions is a material condition to my service to the Company.\nSection 5. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Confidentiality Agreement shall be independent of the others and shall be in addition to and not in\nlieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Confidentiality Agreement\nor any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this\nConfidentiality Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to\nbe\ninvalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making such\ndetermination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope,\nand/or area permissible by law, and in its reduced form said provision shall then be enforceable.\n2\nSection 6. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Confidentiality\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief,\nspecific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of\nthis Confidentiality Agreement without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach.\nSection 7. Cooperation\nI agree that, following any termination of my service to the Company, I will continue to provide reasonable cooperation (to the extent\nthat it does not materially interfere with any other employment obligations at that time) to the Company and/or any other member of the Company\nGroup and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation relating to any matter that\noccurred during my service to the Company in which I was involved or of which I have knowledge. As a condition of such cooperation, the\nCompany shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with this\nparagraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency) to give\ntestimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my service to the Company and/or any\nother member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the Company\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to such\ndisclosure.\nSection 8. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS CONFIDENTIALITY AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS CONFIDENTIALITY AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nTHE UNITED STATES DISTRICT COURT FOR THE STATE OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN DELAWARE, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS CONFIDENTIALITY AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND\n- 3 -\nWAIVE ANY RIGHT TO CHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR\nPROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT. EACH PARTY TO THIS\nCONFIDENTIALITY AGREEMENT ALSO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT,\nACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT.\n(b)\nEntire Agreement. This Confidentiality Agreement sets forth the entire agreement and understanding between the\nCompany\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Confidentiality\nAgreement, nor any waiver of any rights under this Confidentiality Agreement, will be effective unless in writing signed by the party to be charged.\nAny subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Confidentiality\nAgreement.\n(c) No Right of Continued Service. I acknowledge and agree that nothing contained herein shall be construed as granting me any\nright to continued service to the Company, and the right of the Company to terminate my service at any time and for any reason, with or without\ncause, is specifically reserved.\n(d) Successors and Assigns. This Confidentiality Agreement will be binding upon my heirs, executors, administrators, and other\nlegal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nConfidentiality Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction.\n(e) Survival. The provisions of this Confidentiality Agreement shall survive the termination of my service to the Company and/or\nthe assignment of this Confidentiality Agreement by the Company to any successor in interest or other assignee.\nI, Andrew Prozes, have executed this Confidentiality and Confidentiality Agreement on the respective date set forth below:\nDate: May_ 2011\n/s/ Andrew Prozes\n(Signature)\nAndrew Prozes\n(Type/Print Name)\n4	EX-10.3 4 dex103.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.3\nCONFIDENTIALITY AGREEMENT\nAs a condition of my becoming a member of the Board of Directors of Interactive Data Corporation, a Delaware corporation (the\n“Company”), and in consideration of my service to the Company as a director and my receipt of the compensation now and hereafter paid to me by\nthe Company, I agree to the following:\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my service to the Company, I will have access to\ninformation about the Company and its direct and indirect parents and subsidiaries (collectively, the “Company Group”) and that my service to the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my service to the Company and for the ten (10) year period following my termination of service to the\nCompany Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to disclose to any person,\nfirm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or create. I further agree\nnot to make copies of such Confidential Information except as authorized by the Company. I understand that “Confidential Information” means\ninformation that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire, create, compile,\ndiscover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company wishes to maintain as\nconfidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual or\nanticipated business and/or products, research, or development of the Company, or to the Company’s technical data, trade secrets, or know-how,\nincluding, but not limited to, research, product plans, or other information regarding the Company’s products or services and markets, customer lists,\nand customers, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly in writing, orally, or by\ndrawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Confidential Information shall not\ninclude (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by me or others who were\nunder confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by, any governmental or\njudicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the Company Group may seek\nan appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this Confidentiality Agreement\n(the “Confidentiality Agreement”).\n(b) Former or Concurrent Service Recipient Information. I represent that my performance of all of the terms of this\nConfidentiality Agreement as a director of the Company has not breached and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my service to the Company, and\nI will not disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or\nconfidential or proprietary information or material I may have obtained in connection with employment with or service to any prior or concurrent\nemployer or service recipient in violation of a confidentiality agreement, nondisclosure agreement, or similar agreement with such prior or\nconcurrent employer or service recipient.\nSection 2. Returning Company Group Documents.\nI agree that, at the time of termination of my service to the Company for any reason, I will deliver to the Company (and will not keep in\nmy possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty otherwise belonging to the Company. I agree further that any property situated on the Company’s premises and owned by the Company (or\nany other member of the Company Group), including disks and other storage media, filing cabinets, and other work areas, is subject to inspection by\npersonnel of any member of the Company Group at any time with or without notice.\nSection 3. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Confidentiality Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 4. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to Confidential Information renders\nme special and unique within the Company’s industry. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set\nforth in this Confidentiality Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to\nprotect the value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this\nConfidentiality Agreement will not materially interfere with my ability to earn a living following the termination of my service to the Company and\nthat my ability to earn a livelihood without violating such restrictions is a material condition to my service to the Company.\nSection 5. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Confidentiality Agreement shall be independent of the others and shall be in addition to and not in\nlieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Confidentiality Agreement\nor any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this\nConfidentiality Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to\nbe invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making such\ndetermination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope,\nand/or area permissible by law, and in its reduced form said provision shall then be enforceable.\n-2-\nSection 6. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Confidentiality\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief,\nspecific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of\nthis Confidentiality Agreement without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach.\nSection 7. Cooperation.\nI agree that, following any termination of my service to the Company, I will continue to provide reasonable cooperation (to the extent\nthat it does not materially interfere with any other employment obligations at that time) to the Company and/or any other member of the Company\nGroup and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation relating to any matter that\noccurred during my service to the Company in which I was involved or of which I have knowledge. As a condition of such cooperation, the\nCompany shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with this\nparagraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency) to give\ntestimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my service to the Company and/or any\nother member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the Company\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to such\ndisclosure.\nSection 8. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS CONFIDENTIALITY AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS CONFIDENTIALITY AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nTHE UNITED STATES DISTRICT COURT FOR THE STATE OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN DELAWARE, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS CONFIDENTIALITY AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND\n-3-\nWAIVE ANY RIGHT TO CHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR\nPROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT. EACH PARTY TO THIS\nCONFIDENTIALITY AGREEMENT ALSO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT,\nACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT.\n(b) Entire Agreement. This Confidentiality Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Confidentiality\nAgreement, nor any waiver of any rights under this Confidentiality Agreement, will be effective unless in writing signed by the party to be charged.\nAny subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Confidentiality\nAgreement.\n(c) No Right of Continued Service. I acknowledge and agree that nothing contained herein shall be construed as granting me any\nright to continued service to the Company, and the right of the Company to terminate my service at any time and for any reason, with or without\ncause, is specifically reserved.\n(d) Successors and Assigns. This Confidentiality Agreement will be binding upon my heirs, executors, administrators, and other\nlegal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nConfidentiality Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction.\n(e) Survival. The provisions of this Confidentiality Agreement shall survive the termination of my service to the Company and/or\nthe assignment of this Confidentiality Agreement by the Company to any successor in interest or other assignee.\n*\n*\n*\nI, Andrew Prozes, have executed this Confidentiality and Confidentiality Agreement on the respective date set forth below:\nDate: May 5, 2011\n/s/ Andrew Prozes\n(Signature)\nAndrew Prozes\n(Type/Print Name)\n-4-
22a9ca6c51304892ecda7c2a7c247d45.pdf	effective_date jurisdiction party term	EX-99.(D)(3)(I) 9 dex99d3i.htm CONFIDENTIALITY AGREEMENT, DATED MARCH 15, 2007\nExhibit (d)(3)(i)\nLOGO\nMarch 15, 2007\nMr. Thomas Hook\nPresident and CEO\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nDear Mr. Hook:\nEnpath Medical, Inc. (“Enpath” or “the Company”) has engaged Greene Holcomb & Fisher (“GH&F”) to advise the Company with respect to a\npotential negotiated transaction involving a potential business combination (the “Transaction”). In connection with the consideration of a Transaction\nwith the Company, the Company is prepared to furnish Greatbatch, Inc. (“you” or “Greatbatch”) with information concerning the Company’s\nbusiness, all of which is deemed confidential and proprietary, subject to the exceptions outlined below. This information is collectively referred to as\nthe “Evaluation Material.”\n1. Confidentiality\nTo maintain the confidentiality of the Evaluation Material, you and each individual or entity with access to the Evaluation Material agree:\na. not to use any Evaluation Material or notes, summaries, or other material derived from the Evaluation Material (collectively, “Notes”)\nexcept to determine whether you wish to propose to enter into a Transaction with the Company and the terms of a Transaction;\nb. not to disclose any Evaluation Material or Notes other than to those of your and your affiliates’ officers, directors, employees, advisors and\nrepresentatives (collectively, “Representatives”) with a need to know the information and who agree to be bound by the terms of this Agreement; and\nc. not to disclose that the Evaluation Material has been made available, that you or your Representatives have inspected any Evaluation\nMaterial, or that you and the Company may be considering a Transaction or have had, are having or propose to have any discussions with respect\nthereto.\n2. Non-Disclosure by ENPATH and GH&F\nThe Company and GH&F agree not to disclose that the Evaluation Material has been made available to you, or that you may be considering the\nTransaction, or that discussions or negotiations are taking or have taken place with you concerning the Transaction unless the disclosure is required\nby law, regulation or a listing agreement with a securities exchange.\n3. Termination by ENPATH\nThe Company (directly or through GH&F) may elect at any time to terminate further access by you to Evaluation Material. You agree that upon any\ntermination, you will promptly (and in any case within five business days of the Company’s or GH&F’s request) return to GH&F or the Company all\nEvaluation Material except Notes, cause all Notes to be destroyed, including any Notes or Evaluation Material in electronic form and confirm in\nwriting to the Company that all the material has been returned or destroyed in compliance with this Agreement, except that your investment banker\nmay retain one copy of any such Evaluation Material as may be required under internal record retention policies and procedures for legal,\ncompliance or regulatory purposes, in which case the restrictions herein on its use and disclosure of any Evaluation Material shall survive. No\ntermination will affect your obligations or\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 2\nthose of your Representatives under this Agreement, all of which obligations will continue in effect. You will be permitted to maintain a log that\nidentifies the Evaluation Material returned in accordance with this paragraph.\n4. Exceptions\nThis Agreement does not apply to portions of the Evaluation Material if the information\ni. becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this\nAgreement,\nii.\nwas available to you on a non-confidential basis or was already in the public domain prior to its disclosure to you by the Company or its\nrepresentatives,\niii. becomes available to you on a non-confidential basis from a source, other than the Company or its representatives, if the source is not\nknown to you to be prohibited from disclosing the information to you by a contractual, legal, fiduciary or other obligation to maintain\nconfidentiality to the Company or its representatives,\niv. as demonstrated by reasonable proof, was developed by or on behalf of you (or your Representatives) independent of and without\nreference to the Evaluation Material.\n5. Required Disclosure\nIf you or your Representatives are requested, legally compelled or required (by oral questions, interrogatories, requests for information, subpoena,\ncivil investigative demand, or similar court or governmental process) to disclose any Evaluation Material or Notes, you agree that you will provide\nthe Company with prompt written notice of the request so that the Company may seek an appropriate protective order or waive your compliance\nwith the provisions of this Agreement. You agree to reasonably cooperate with the Company, at the Company’s sole expense, in obtaining an\nappropriate protective order. If, failing the entry of a protective order or the receipt of a waiver hereunder, you or your Representatives are, in the\nopinion of your or your Representatives’ counsel, as the case may be, required or compelled to disclose Evaluation Material or Notes, you may\ndisclose only that portion of the information that is legally required without liability hereunder if you agree to exercise your reasonable efforts to\nobtain assurance that confidential treatment will be accorded that information.\n6. Non- Solicitation\nFor a period of one year following the date of the Agreement, you will not, directly or indirectly, solicit for employment or hire any officer, director,\nor employee of the Company or any of its subsidiaries with whom you have had contact or who became known to you in connection with your\nconsideration of the Transaction, except that you will not be precluded from hiring any employee who (i) responds to any public advertisement or\ngeneral search placed by you, or (ii) has been terminated by the Company or its subsidiaries prior to commencement of employment discussions\nbetween you and the officer, director, or employee.\nGreatbatch further agrees that it will not, for a period of one year from the date of this Agreement, use the Evaluation Material to contact the clients\nof ENPATH. ENPATH acknowledges that Greatbatch operates a similar businesses that may compete with ENPATH customers and that nothing\ncontained in this Agreement will prohibit Greatbatch from continuing to contact these customers in the normal course of business.\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 3\n7. Standstill\nYou agree that until one year from the date of this Agreement, you will not without the prior approval of the Board of Directors of the Company,\ndirectly or indirectly through any third party:\ni.\nacquire or make any proposal to acquire any securities or property of the Company,\nii. propose to enter into any merger or business combination involving the Company or purchase a material portion of the assets of the\nCompany,\niii. make or participate in any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of any\nsecurities of the Company,\niv. form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to\nany voting securities of the Company,\nv.\notherwise act or seek to control or influence the management, Board of Directors or policies of the Company; however, this clause does\nnot prohibit ordinary course of business transactions between you and the Company that are not in connection with a Transaction,\nvi. disclose any intention, plan or arrangement inconsistent with the foregoing, or\nvii. take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nmerger.\nYou also agree during the one-year period, not to publicly request the Company (or its directors, officers, employees, agents or representatives) to\namend or waive any provision of this paragraph. This paragraph 7 does not prohibit you from confidential discussions with the management of the\nCompany or its representatives concerning a possible Transaction.\n8. No Representations\nYou understand and agree that none of the Company, GH&F, or their respective affiliates or representatives make any representations or warranties,\nexpress or implied, with respect to any of the Evaluation Material, except as is explicitly set forth in the Evaluation Material. You also agree that\nnone of the Company, GH&F, or their respective affiliates or representatives will have liability to you or your Representatives resulting from the\nselection or use of the Evaluation Material by you or your Representatives.\n9. No Definite Agreement\nYou agree that no contract or agreement providing for any Transaction will be deemed to exist between you and the Company unless and until you\nand the Company execute and deliver a final definitive agreement (a “Transaction Agreement”), You also agree that unless and until you and the\nCompany have executed and delivered a Transaction Agreement, neither you nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to a Transaction by virtue of this Agreement, except for the matters specifically agreed to in this Agreement. You further\nacknowledge and agree that the Company reserves the right, in its sole discretion, to reject any and all proposals made by you or your\nRepresentatives with regard to a Transaction, and to terminate discussions and negotiations with you at any time. You further understand that the\nCompany will be free to establish and change any process or procedure with respect to a Transaction as the Company in its sole discretion may\ndetermine (including, without limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a\nTransaction with any other party without prior notice to you or any other person).\n10. Injunctive Relief\nYou further understand and agreed that money damages may not be a sufficient remedy for any breach of this Agreement and that the Company will\nbe entitled to seek specific performance and injunctive or other equitable\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 4\nrelief as a remedy for any such breach. This remedy will not be deemed to be the exclusive remedy for breach of this Agreement but is in addition to\nall other remedies available at law or equity to the Company.\n11. Severability:\nIf any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and\neffect without being invalidated.\n12. Governing Law:\nThis Agreement is to be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of Minnesota,\nwithout giving effect to its principles of conflicts of law.\n13. Notice:\nAll Notices, demands and requests required or permitted to be given under this Agreement must be in writing and directed to the addresses indicated\nbelow, or such other address as indicated by the parties, from time to time. Each notice or other communication will be deemed given (a) when\npersonally delivered or sent by facsimile transmission to the party to be given the notice or other communication at the address indicated below, or\n(b) on the business day following the business day that the notice or other communication is sent by overnight courier or next day delivery, to the\naddress indicated below.\nIF TO GREATBATCH:\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nAttn: Thomas Hook\n(t) (716) 759-5671\n(f) (716) 759-5672\nIF TO ENPATH:\nEnpath Medical, Inc.\n2300 Berkshire Lane North\nMinneapolis, MN 55441\nAttn: James D. Hartman\n(t) (763) 559-2613\n(f) (763) 559-0148\n14. General:\nThis Agreement embodies the entire understanding and agreement between the Parties relating to the subject matter hereof, and supersedes any and\nall prior agreements and understandings relating thereto. No change, modification, alteration or addition to any provision of this Agreement will be\nbinding unless agreed to in writing by an authorized representative on behalf of each Party to this Agreement.\nThe parties understand and agree that no failure of delay by the other party in exercising any right, power or privilege under this Agreement will\noperate as a waiver thereof nor will any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 5\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nENPATH MEDICAL, INC.\nBy: /s/ James D. Hartman\nName: James D. Hartman\nTitle: Chairman of the Board\nAccepted as of the\nDate first above written:\nGREATBATCH, INC.\nBy: /s/ Thomas Hook\nName: Thomas Hook\nTitle: President and CEO\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA	EX-99.(D)(3)(I) 9 dex99d3i.htm CONFIDENTIALITY AGREEMENT, DATED MARCH 15, 2007\nExhibit (d)(3)(i)\n. LOGO\nMarch 15, 2007\nMr. Thomas Hook\nPresident and CEO\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nDear Mr. Hook:\nEnpath Medical, Inc. (“Enpath” or “the Company”) has engaged Greene Holcomb & Fisher (“GH&EF”) to advise the Company with respect to a\npotential negotiated transaction involving a potential business combination (the “Transaction”). In connection with the consideration of a Transaction\nwith the Company, the Company is prepared to furnish Greatbatch, Inc. (“you” or “Greatbatch”) with information concerning the Company’s\nbusiness, all of which is deemed confidential and proprietary, subject to the exceptions outlined below. This information is collectively referred to as\nthe “Evaluation Material.”\n1. Confidentiality\nTo maintain the confidentiality of the Evaluation Material, you and each individual or entity with access to the Evaluation Material agree:\na. not to use any Evaluation Material or notes, summaries, or other material derived from the Evaluation Material (collectively, “Notes”)\nexcept to determine whether you wish to propose to enter into a Transaction with the Company and the terms of a Transaction;\nb. not to disclose any Evaluation Material or Notes other than to those of your and your affiliates’ officers, directors, employees, advisors and\nrepresentatives (collectively, “Representatives”) with a need to know the information and who agree to be bound by the terms of this Agreement; and\nc. not to disclose that the Evaluation Material has been made available, that you or your Representatives have inspected any Evaluation\nMaterial, or that you and the Company may be considering a Transaction or have had, are having or propose to have any discussions with respect\nthereto.\n2. Non-Disclosure by ENPATH and GH&F\nThe Company and GH&F agree not to disclose that the Evaluation Material has been made available to you, or that you may be considering the\nTransaction, or that discussions or negotiations are taking or have taken place with you concerning the Transaction unless the disclosure is required\nby law, regulation or a listing agreement with a securities exchange.\n3. Termination by ENPATH\nThe Company (directly or through GH&F) may elect at any time to terminate further access by you to Evaluation Material. You agree that upon any\ntermination, you will promptly (and in any case within five business days of the Company’s or GH&EF’s request) return to GH&F or the Company all\nEvaluation Material except Notes, cause all Notes to be destroyed, including any Notes or Evaluation Material in electronic form and confirm in\nwriting to the Company that all the material has been returned or destroyed in compliance with this Agreement, except that your investment banker\nmay retain one copy of any such Evaluation Material as may be required under internal record retention policies and procedures for legal,\ncompliance or regulatory purposes, in which case the restrictions herein on its use and disclosure of any Evaluation Material shall survive. No\ntermination will affect your obligations or\nphone :: 763.951.8181 fax 1 763.559.0148 mail :: Enpath Medical, Inc.\ntoll free :: 866.951.8181 web ::  enpathmedical.com 2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 2\nthose of your Representatives under this Agreement, all of which obligations will continue in effect. You will be permitted to maintain a log that\nidentifies the Evaluation Material returned in accordance with this paragraph.\n4.  Exceptions\nThis Agreement does not apply to portions of the Evaluation Material if the information\nL. becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this\nAgreement,\nii.  was available to you on a non-confidential basis or was already in the public domain prior to its disclosure to you by the Company or its\nrepresentatives,\niii. becomes available to you on a non-confidential basis from a source, other than the Company or its representatives, if the source is not\nknown to you to be prohibited from disclosing the information to you by a contractual, legal, fiduciary or other obligation to maintain\nconfidentiality to the Company or its representatives,\niv.  as demonstrated by reasonable proof, was developed by or on behalf of you (or your Representatives) independent of and without\nreference to the Evaluation Material.\n5. Required Disclosure\nIf you or your Representatives are requested, legally compelled or required (by oral questions, interrogatories, requests for information, subpoena,\ncivil investigative demand, or similar court or governmental process) to disclose any Evaluation Material or Notes, you agree that you will provide\nthe Company with prompt written notice of the request so that the Company may seek an appropriate protective order or waive your compliance\nwith the provisions of this Agreement. You agree to reasonably cooperate with the Company, at the Company’s sole expense, in obtaining an\nappropriate protective order. If, failing the entry of a protective order or the receipt of a waiver hereunder, you or your Representatives are, in the\nopinion of your or your Representatives’ counsel, as the case may be, required or compelled to disclose Evaluation Material or Notes, you may\ndisclose only that portion of the information that is legally required without liability hereunder if you agree to exercise your reasonable efforts to\nobtain assurance that confidential treatment will be accorded that information.\n6. Non- Solicitation\nFor a period of one year following the date of the Agreement, you will not, directly or indirectly, solicit for employment or hire any officer, director,\nor employee of the Company or any of its subsidiaries with whom you have had contact or who became known to you in connection with your\nconsideration of the Transaction, except that you will not be precluded from hiring any employee who (i) responds to any public advertisement or\ngeneral search placed by you, or (ii) has been terminated by the Company or its subsidiaries prior to commencement of employment discussions\nbetween you and the officer, director, or employee.\nGreatbatch further agrees that it will not, for a period of one year from the date of this Agreement, use the Evaluation Material to contact the clients\nof ENPATH. ENPATH acknowledges that Greatbatch operates a similar businesses that may compete with ENPATH customers and that nothing\ncontained in this Agreement will prohibit Greatbatch from continuing to contact these customers in the normal course of business.\nphone :: 763.951.8181 fax 1 763.559.0148 mail :: Enpath Medical, Inc.\ntoll free :: 866.951.8181 web ::  enpathmedical.com 2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 3\n7. Standstill\nYou agree that until one year from the date of this Agreement, you will not without the prior approval of the Board of Directors of the Company,\ndirectly or indirectly through any third party:\ni acquire or make any proposal to acquire any securities or property of the Company,\nii.  propose to enter into any merger or business combination involving the Company or purchase a material portion of the assets of the\nCompany,\niii. make or participate in any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of any\nsecurities of the Company,\niv.  form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to\nany voting securities of the Company,\nv.  otherwise act or seek to control or influence the management, Board of Directors or policies of the Company; however, this clause does\nnot prohibit ordinary course of business transactions between you and the Company that are not in connection with a Transaction,\nvi. disclose any intention, plan or arrangement inconsistent with the foregoing, or\nvii. take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nmerger.\nYou also agree during the one-year period, not to publicly request the Company (or its directors, officers, employees, agents or representatives) to\namend or waive any provision of this paragraph. This paragraph 7 does not prohibit you from confidential discussions with the management of the\nCompany or its representatives concerning a possible Transaction.\n8.  No Representations\nYou understand and agree that none of the Company, GH&F, or their respective affiliates or representatives make any representations or warranties,\nexpress or implied, with respect to any of the Evaluation Material, except as is explicitly set forth in the Evaluation Material. You also agree that\nnone of the Company, GH&F, or their respective affiliates or representatives will have liability to you or your Representatives resulting from the\nselection or use of the Evaluation Material by you or your Representatives.\n9.  No Definite Agreement\nYou agree that no contract or agreement providing for any Transaction will be deemed to exist between you and the Company unless and until you\nand the Company execute and deliver a final definitive agreement (a “Transaction Agreement”), You also agree that unless and until you and the\nCompany have executed and delivered a Transaction Agreement, neither you nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to a Transaction by virtue of this Agreement, except for the matters specifically agreed to in this Agreement. You further\nacknowledge and agree that the Company reserves the right, in its sole discretion, to reject any and all proposals made by you or your\nRepresentatives with regard to a Transaction, and to terminate discussions and negotiations with you at any time. You further understand that the\nCompany will be free to establish and change any process or procedure with respect to a Transaction as the Company in its sole discretion may\ndetermine (including, without limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a\nTransaction with any other party without prior notice to you or any other person).\n10. Injunctive Relief\nYou further understand and agreed that money damages may not be a sufficient remedy for any breach of this Agreement and that the Company will\nbe entitled to seek specific performance and injunctive or other equitable\nphone :: 763.951.8181 fax 1 763.559.0148 mail :: Enpath Medical, Inc.\ntoll free :: 866.951.8181 web ::  enpathmedical.com 2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 4\nrelief as a remedy for any such breach. This remedy will not be deemed to be the exclusive remedy for breach of this Agreement but is in addition to\nall other remedies available at law or equity to the Company.\n11.  Severability:\nIf any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and\neffect without being invalidated.\n12.  Governing Law:\nThis Agreement is to be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of Minnesota,\nwithout giving effect to its principles of conflicts of law.\n13. Notice:\nAll Notices, demands and requests required or permitted to be given under this Agreement must be in writing and directed to the addresses indicated\nbelow, or such other address as indicated by the parties, from time to time. Each notice or other communication will be deemed given (a) when\npersonally delivered or sent by facsimile transmission to the party to be given the notice or other communication at the address indicated below, or\n(b) on the business day following the business day that the notice or other communication is sent by overnight courier or next day delivery, to the\naddress indicated below.\nIF TO GREATBATCH:\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nAttn: Thomas Hook\n(t) (716) 759-5671\n(f) (716) 759-5672\nIF TO ENPATH:\nEnpath Medical, Inc.\n2300 Berkshire Lane North\nMinneapolis, MN 55441\nAttn: James D. Hartman\n(t) (763) 559-2613\n(f) (763) 559-0148\n14. General:\nThis Agreement embodies the entire understanding and agreement between the Parties relating to the subject matter hereof, and supersedes any and\nall prior agreements and understandings relating thereto. No change, modification, alteration or addition to any provision of this Agreement will be\nbinding unless agreed to in writing by an authorized representative on behalf of each Party to this Agreement.\nThe parties understand and agree that no failure of delay by the other party in exercising any right, power or privilege under this Agreement will\noperate as a waiver thereof nor will any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nphone :: 763.951.8181 fax 1 763.559.0148 mail :: Enpath Medical, Inc.\ntoll free :: 866.951.8181 web ::  enpathmedical.com 2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 5\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nENPATH MEDICAL, INC.\nBy: /s/ James D. Hartman\nName: James D. Hartman\nTitle:  Chairman of the Board\nAccepted as of the\nDate first above written:\nGREATBATCH, INC.\nBy: /s/ Thomas Hook\nName: Thomas Hook\nTitle:  President and CEO\nphone :: 763.951.8181 fax 1 763.559.0148 mail :: Enpath Medical, Inc.\ntoll free :: 866.951.8181 web ::  enpathmedical.com 2300 Berkshire Lane North\nMinneapolis, MN 55441 USA	EX-99.(D)(3)(I) 9 dex99d3i.htm CONFIDENTIALITY AGREEMENT, DATED MARCH 15, 2007\nExhibit (d)(3)(i)\nLOGO\nMarch 15, 2007\nMr. Thomas Hook\nPresident and CEO\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nDear Mr. Hook:\nEnpath Medical, Inc. ("Enpath" or "the Company") has engaged Greene Holcomb & Fisher ("GH&F") to advise the Company with respect to\na\npotential negotiated transaction involving a potential business combination (the "Transaction"). In connection with the consideration of a Transaction\nwith the Company, the Company is prepared to furnish Greatbatch, Inc. ("you" or "Greatbatch") with information concerning the Company's\nbusiness, all of which is deemed confidential and proprietary, subject to the exceptions outlined below. This information is collectively referred to\nas\nthe "Evaluation Material."\n1. Confidentiality\nTo maintain the confidentiality of the Evaluation Material, you and each individual or entity with access to the Evaluation Material agree:\na.\nnot to use any Evaluation Material or notes, summaries, or other material derived from the Evaluation Material (collectively, "Notes")\nexcept to determine whether you wish to propose to enter into a Transaction with the Company and the terms of a Transaction;\nb. not to disclose any Evaluation Material or Notes other than to those of your and your affiliates' officers, directors, employees, advisors and\nrepresentatives (collectively, "Representatives") with a need to know the information and who agree to be bound by the terms of this Agreement; and\nC. not to disclose that the Evaluation Material has been made available, that you or your Representatives have inspected any Evaluation\nMaterial, or that you and the Company may be considering a Transaction or have had, are having or propose to have any discussions with respect\nthereto.\n2.\nNon-Disclosure by ENPATH and GH&F\nThe Company and GH&F agree not to disclose that the Evaluation Material has been made available to you, or that you may be considering the\nTransaction, or that discussions or negotiations are taking or have taken place with you concerning the Transaction unless the disclosure is required\nby law, regulation or a listing agreement with a securities exchange.\n3.\nTermination by ENPATH\nThe Company (directly or through GH&F) may elect at any time to terminate further access by you to Evaluation Material. You agree that upon any\ntermination, you will promptly (and in any case within five business days of the Company's or GH&F's request) return to GH&F or the Company all\nEvaluation Material except Notes, cause all Notes to be destroyed, including any Notes or Evaluation Material in electronic form and confirm in\nwriting to the Company that all the material has been returned or destroyed in compliance with this Agreement, except that your investment banker\nmay retain one copy of any such Evaluation Material as may be required under internal record retention policies and procedures for legal,\ncompliance or regulatory purposes, in which case the restrictions herein on its use and disclosure of any Evaluation Material shall survive. No\ntermination will affect your obligations or\nphone 763.951.8181\nfax\n763.559.0148\nmail\nEnpath Medical, Inc.\ntoll free 866.951.8181\nweb\nenpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 2\nthose of your Representatives under this Agreement, all of which obligations will continue in effect. You will be permitted to maintain a log that\nidentifies the Evaluation Material returned in accordance with this paragraph.\n4. Exceptions\nThis Agreement does not apply to portions of the Evaluation Material if the information\ni.\nbecomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this\nAgreement,\nii.\nwas available to you on a non-confidential basis or was already in the public domain prior to its disclosure to you by the Company or its\nrepresentatives,\niii.\nbecomes available to you on a non-confidential basis from a source, other than the Company or its representatives, if the source is not\nknown to you to be prohibited from disclosing the information to you by a contractual, legal, fiduciary or other obligation to maintain\nconfidentiality to the Company or its representatives,\niv.\nas demonstrated by reasonable proof, was developed by or on behalf of you (or your Representatives) independent of and without\nreference to the Evaluation Material.\n5.\nRequired Disclosure\nIf you or your Representatives are requested, legally compelled or required (by oral questions, interrogatories, requests for information, subpoena,\ncivil investigative demand, or similar court or governmental process) to disclose any Evaluation Material or Notes, you agree that you will provide\nthe Company with prompt written notice of the request so that the Company may seek an appropriate protective order or waive your compliance\nwith the provisions of this Agreement. You agree to reasonably cooperate with the Company, at the Company's sole expense, in obtaining an\nappropriate protective order. If, failing the entry of a protective order or the receipt of a waiver hereunder, you or your Representatives are, in the\nopinion of your or your Representatives' counsel, as the case may be, required or compelled to disclose Evaluation Material or Notes, you may\ndisclose only that portion of the information that is legally required without liability hereunder if you agree to exercise your reasonable efforts to\nobtain assurance that confidential treatment will be accorded that information.\n6.\nNon- Solicitation\nFor a period of one year following the date of the Agreement, you will not, directly or indirectly, solicit for employment or hire any officer, director,\nor employee of the Company or any of its subsidiaries with whom you have had contact or who became known to you in connection with your\nconsideration of the Transaction, except that you will not be precluded from hiring any employee who (i) responds to any public advertisement or\ngeneral search placed by you, or (ii) has been terminated by the Company or its subsidiaries prior to commencement of employment discussions\nbetween you and the officer, director, or employee.\nGreatbatch further agrees that it will not, for a period of one year from the date of this Agreement, use the Evaluation Material to contact the clients\nof ENPATH. ENPATH acknowledges that Greatbatch operates a similar businesses that may compete with ENPATH customers and that nothing\ncontained in this Agreement will prohibit Greatbatch from continuing to contact these customers in the normal course of business.\nphone 763.951.8181\nfax\n763.559.0148\nmail\nEnpath Medical, Inc.\ntoll free\n866.951.8181\nweb\nenpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 3\n7. Standstill\nYou agree that until one year from the date of this Agreement, you will not without the prior approval of the Board of Directors of the Company,\ndirectly or indirectly through any third party:\ni.\nacquire or make any proposal to acquire any securities or property of the Company,\nii.\npropose to enter into any merger or business combination involving the Company or purchase a material portion of the assets of the\nCompany,\niii. make or participate in any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of any\nsecurities of the Company,\niv.\nform, join or participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to\nany voting securities of the Company,\nV.\notherwise act or seek to control or influence the management, Board of Directors or policies of the Company; however, this clause does\nnot prohibit ordinary course of business transactions between you and the Company that are not in connection with a Transaction,\nvi.\ndisclose any intention, plan or arrangement inconsistent with the foregoing, or\nvii. take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nmerger.\nYou also agree during the one-year period, not to publicly request the Company (or its directors, officers, employees, agents or representatives) to\namend or waive any provision of this paragraph. This paragraph 7 does not prohibit you from confidential discussions with the management of the\nCompany or its representatives concerning a possible Transaction.\n8.\nNo Representations\nYou understand and agree that none of the Company, GH&F, or their respective affiliates or representatives make any representations or warranties,\nexpress or implied, with respect to any of the Evaluation Material, except as is explicitly set forth in the Evaluation Material. You also agree that\nnone of the Company, GH&F, or their respective affiliates or representatives will have liability to you or your Representatives resulting from the\nselection or use of the Evaluation Material by you or your Representatives.\n9.\nNo Definite Agreement\nYou agree that no contract or agreement providing for any Transaction will be deemed to exist between you and the Company unless and until you\nand the Company execute and deliver a final definitive agreement (a "Transaction Agreement"), You also agree that unless and until you and the\nCompany have executed and delivered a Transaction Agreement, neither you nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to a Transaction by virtue of this Agreement, except for the matters specifically agreed to in this Agreement. You further\nacknowledge and agree that the Company reserves the right, in its sole discretion, to reject any and all proposals made by you or your\nRepresentatives with regard to a Transaction, and to terminate discussions and negotiations with you at any time. You further understand that the\nCompany will be free to establish and change any process or procedure with respect to a Transaction as the Company in its sole discretion may\ndetermine (including, without limitation, negotiating with any other interested party and entering into a final definitive agreement relating to\na\nTransaction with any other party without prior notice to you or any other person).\n10. Injunctive Relief\nYou further understand and agreed that money damages may not be a sufficient remedy for any breach of this Agreement and that the Company will\nbe entitled to seek specific performance and injunctive or other equitable\nphone 763.951.8181\nfax\n763.559.0148\nmail\nEnpath Medical, Inc.\ntoll free\n866.951.8181\nweb enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 4\nrelief as a remedy for any such breach. This remedy will not be deemed to be the exclusive remedy for breach of this Agreement but is in addition to\nall other remedies available at law or equity to the Company.\n11. Severability:\nIf any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and\neffect without being invalidated.\n12. Governing Law:\nThis Agreement is to be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of Minnesota,\nwithout giving effect to its principles of conflicts of law.\n13. Notice:\nAll Notices, demands and requests required or permitted to be given under this Agreement must be in writing and directed to the addresses indicated\nbelow, or such other address as indicated by the parties, from time to time. Each notice or other communication will be deemed given (a) when\npersonally delivered or sent by facsimile transmission to the party to be given the notice or other communication at the address indicated below, or\n(b) on the business day following the business day that the notice or other communication is sent by overnight courier or next day delivery, to the\naddress indicated below.\nIF TO GREATBATCH:\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nAttn: Thomas Hook\n(t) (716) 759-5671\n(f) (716) 759-5672\nIF TO ENPATH:\nEnpath Medical, Inc.\n2300 Berkshire Lane North\nMinneapolis, MN 55441\nAttn: James D. Hartman\n(t) (763) 559-2613\n(f) (763) 559-0148\n14. General:\nThis Agreement embodies the entire understanding and agreement between the Parties relating to the subject matter hereof, and supersedes any and\nall prior agreements and understandings relating thereto. No change, modification, alteration or addition to any provision of this Agreement will be\nbinding unless agreed to in writing by an authorized representative on behalf of each Party to this Agreement.\nThe parties understand and agree that no failure of delay by the other party in exercising any right, power or privilege under this Agreement will\noperate as a waiver thereof nor will any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nphone :: 763.951.8181\nfax 763.559.0148\nmail\n:: Enpath Medical, Inc.\ntoll free\n:: 866.951.8181\nweb\nenpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 5\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nENPATH MEDICAL, INC.\nBy: /s/ James D. Hartman\nName: James D. Hartman\nTitle: Chairman of the Board\nAccepted as of the\nDate first above written:\nGREATBATCH, INC.\nBy: /s/ Thomas Hook\nName: Thomas Hook\nTitle: President and CEO\nphone :: 763.951.8181\nfax :: 763.559.0148\nmail\n:: Enpath Medical, Inc.\ntoll free :: 866.951.8181\nweb\nenpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA	EX-99.(D)(3)(I) 9 dex99d3i.htm CONFIDENTIALITY AGREEMENT, DATED MARCH 15, 2007\nExhibit (d)(3)(i)\nLOGO\nMarch 15, 2007\nMr. Thomas Hook\nPresident and CEO\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nDear Mr. Hook:\nEnpath Medical, Inc. (“Enpath” or “the Company”) has engaged Greene Holcomb & Fisher (“GH&F”) to advise the Company with respect to a\npotential negotiated transaction involving a potential business combination (the “Transaction”). In connection with the consideration of a Transaction\nwith the Company, the Company is prepared to furnish Greatbatch, Inc. (“you” or “Greatbatch”) with information concerning the Company’s\nbusiness, all of which is deemed confidential and proprietary, subject to the exceptions outlined below. This information is collectively referred to as\nthe “Evaluation Material.”\n1. Confidentiality\nTo maintain the confidentiality of the Evaluation Material, you and each individual or entity with access to the Evaluation Material agree:\na. not to use any Evaluation Material or notes, summaries, or other material derived from the Evaluation Material (collectively, “Notes”)\nexcept to determine whether you wish to propose to enter into a Transaction with the Company and the terms of a Transaction;\nb. not to disclose any Evaluation Material or Notes other than to those of your and your affiliates’ officers, directors, employees, advisors and\nrepresentatives (collectively, “Representatives”) with a need to know the information and who agree to be bound by the terms of this Agreement; and\nc. not to disclose that the Evaluation Material has been made available, that you or your Representatives have inspected any Evaluation\nMaterial, or that you and the Company may be considering a Transaction or have had, are having or propose to have any discussions with respect\nthereto.\n2. Non-Disclosure by ENPATH and GH&F\nThe Company and GH&F agree not to disclose that the Evaluation Material has been made available to you, or that you may be considering the\nTransaction, or that discussions or negotiations are taking or have taken place with you concerning the Transaction unless the disclosure is required\nby law, regulation or a listing agreement with a securities exchange.\n3. Termination by ENPATH\nThe Company (directly or through GH&F) may elect at any time to terminate further access by you to Evaluation Material. You agree that upon any\ntermination, you will promptly (and in any case within five business days of the Company’s or GH&F’s request) return to GH&F or the Company all\nEvaluation Material except Notes, cause all Notes to be destroyed, including any Notes or Evaluation Material in electronic form and confirm in\nwriting to the Company that all the material has been returned or destroyed in compliance with this Agreement, except that your investment banker\nmay retain one copy of any such Evaluation Material as may be required under internal record retention policies and procedures for legal,\ncompliance or regulatory purposes, in which case the restrictions herein on its use and disclosure of any Evaluation Material shall survive. No\ntermination will affect your obligations or\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 2\nthose of your Representatives under this Agreement, all of which obligations will continue in effect. You will be permitted to maintain a log that\nidentifies the Evaluation Material returned in accordance with this paragraph.\n4. Exceptions\nThis Agreement does not apply to portions of the Evaluation Material if the information\ni. becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this\nAgreement,\nii.\nwas available to you on a non-confidential basis or was already in the public domain prior to its disclosure to you by the Company or its\nrepresentatives,\niii. becomes available to you on a non-confidential basis from a source, other than the Company or its representatives, if the source is not\nknown to you to be prohibited from disclosing the information to you by a contractual, legal, fiduciary or other obligation to maintain\nconfidentiality to the Company or its representatives,\niv. as demonstrated by reasonable proof, was developed by or on behalf of you (or your Representatives) independent of and without\nreference to the Evaluation Material.\n5. Required Disclosure\nIf you or your Representatives are requested, legally compelled or required (by oral questions, interrogatories, requests for information, subpoena,\ncivil investigative demand, or similar court or governmental process) to disclose any Evaluation Material or Notes, you agree that you will provide\nthe Company with prompt written notice of the request so that the Company may seek an appropriate protective order or waive your compliance\nwith the provisions of this Agreement. You agree to reasonably cooperate with the Company, at the Company’s sole expense, in obtaining an\nappropriate protective order. If, failing the entry of a protective order or the receipt of a waiver hereunder, you or your Representatives are, in the\nopinion of your or your Representatives’ counsel, as the case may be, required or compelled to disclose Evaluation Material or Notes, you may\ndisclose only that portion of the information that is legally required without liability hereunder if you agree to exercise your reasonable efforts to\nobtain assurance that confidential treatment will be accorded that information.\n6. Non- Solicitation\nFor a period of one year following the date of the Agreement, you will not, directly or indirectly, solicit for employment or hire any officer, director,\nor employee of the Company or any of its subsidiaries with whom you have had contact or who became known to you in connection with your\nconsideration of the Transaction, except that you will not be precluded from hiring any employee who (i) responds to any public advertisement or\ngeneral search placed by you, or (ii) has been terminated by the Company or its subsidiaries prior to commencement of employment discussions\nbetween you and the officer, director, or employee.\nGreatbatch further agrees that it will not, for a period of one year from the date of this Agreement, use the Evaluation Material to contact the clients\nof ENPATH. ENPATH acknowledges that Greatbatch operates a similar businesses that may compete with ENPATH customers and that nothing\ncontained in this Agreement will prohibit Greatbatch from continuing to contact these customers in the normal course of business.\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 3\n7. Standstill\nYou agree that until one year from the date of this Agreement, you will not without the prior approval of the Board of Directors of the Company,\ndirectly or indirectly through any third party:\ni.\nacquire or make any proposal to acquire any securities or property of the Company,\nii. propose to enter into any merger or business combination involving the Company or purchase a material portion of the assets of the\nCompany,\niii. make or participate in any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of any\nsecurities of the Company,\niv. form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to\nany voting securities of the Company,\nv.\notherwise act or seek to control or influence the management, Board of Directors or policies of the Company; however, this clause does\nnot prohibit ordinary course of business transactions between you and the Company that are not in connection with a Transaction,\nvi. disclose any intention, plan or arrangement inconsistent with the foregoing, or\nvii. take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nmerger.\nYou also agree during the one-year period, not to publicly request the Company (or its directors, officers, employees, agents or representatives) to\namend or waive any provision of this paragraph. This paragraph 7 does not prohibit you from confidential discussions with the management of the\nCompany or its representatives concerning a possible Transaction.\n8. No Representations\nYou understand and agree that none of the Company, GH&F, or their respective affiliates or representatives make any representations or warranties,\nexpress or implied, with respect to any of the Evaluation Material, except as is explicitly set forth in the Evaluation Material. You also agree that\nnone of the Company, GH&F, or their respective affiliates or representatives will have liability to you or your Representatives resulting from the\nselection or use of the Evaluation Material by you or your Representatives.\n9. No Definite Agreement\nYou agree that no contract or agreement providing for any Transaction will be deemed to exist between you and the Company unless and until you\nand the Company execute and deliver a final definitive agreement (a “Transaction Agreement”), You also agree that unless and until you and the\nCompany have executed and delivered a Transaction Agreement, neither you nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to a Transaction by virtue of this Agreement, except for the matters specifically agreed to in this Agreement. You further\nacknowledge and agree that the Company reserves the right, in its sole discretion, to reject any and all proposals made by you or your\nRepresentatives with regard to a Transaction, and to terminate discussions and negotiations with you at any time. You further understand that the\nCompany will be free to establish and change any process or procedure with respect to a Transaction as the Company in its sole discretion may\ndetermine (including, without limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a\nTransaction with any other party without prior notice to you or any other person).\n10. Injunctive Relief\nYou further understand and agreed that money damages may not be a sufficient remedy for any breach of this Agreement and that the Company will\nbe entitled to seek specific performance and injunctive or other equitable\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 4\nrelief as a remedy for any such breach. This remedy will not be deemed to be the exclusive remedy for breach of this Agreement but is in addition to\nall other remedies available at law or equity to the Company.\n11. Severability:\nIf any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and\neffect without being invalidated.\n12. Governing Law:\nThis Agreement is to be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of Minnesota,\nwithout giving effect to its principles of conflicts of law.\n13. Notice:\nAll Notices, demands and requests required or permitted to be given under this Agreement must be in writing and directed to the addresses indicated\nbelow, or such other address as indicated by the parties, from time to time. Each notice or other communication will be deemed given (a) when\npersonally delivered or sent by facsimile transmission to the party to be given the notice or other communication at the address indicated below, or\n(b) on the business day following the business day that the notice or other communication is sent by overnight courier or next day delivery, to the\naddress indicated below.\nIF TO GREATBATCH:\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nAttn: Thomas Hook\n(t) (716) 759-5671\n(f) (716) 759-5672\nIF TO ENPATH:\nEnpath Medical, Inc.\n2300 Berkshire Lane North\nMinneapolis, MN 55441\nAttn: James D. Hartman\n(t) (763) 559-2613\n(f) (763) 559-0148\n14. General:\nThis Agreement embodies the entire understanding and agreement between the Parties relating to the subject matter hereof, and supersedes any and\nall prior agreements and understandings relating thereto. No change, modification, alteration or addition to any provision of this Agreement will be\nbinding unless agreed to in writing by an authorized representative on behalf of each Party to this Agreement.\nThe parties understand and agree that no failure of delay by the other party in exercising any right, power or privilege under this Agreement will\noperate as a waiver thereof nor will any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 5\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nENPATH MEDICAL, INC.\nBy: /s/ James D. Hartman\nName: James D. Hartman\nTitle: Chairman of the Board\nAccepted as of the\nDate first above written:\nGREATBATCH, INC.\nBy: /s/ Thomas Hook\nName: Thomas Hook\nTitle: President and CEO\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA
232b3bee703427df8e9893e4a52d5d60.pdf	effective_date jurisdiction party term	EX-10.3 4 dex103.htm FORM OF EXECUTIVE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nEXECUTIVE CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nIn consideration of my 2011 stock award and other good and valuable consideration, the sufficiency of which is acknowledged, the Company and I\nagree to this Executive Confidentiality and Non-Competition Agreement (“Agreement”).\n1. The following definitions apply to this Agreement:\na. “Company” means [Employer Name] and its successors and assigns.\nb. “Company Affiliate” means, excluding the Company itself, Altria Group, its wholly-owned subsidiaries and affiliates, and their successors\nand assigns.\nc. “I,” “me,” or “my” refers to [Executive Name].\nd. “Confidential Information” means information that is confidential and proprietary to the Company and/or any Company Affiliate, including\nbut not limited to: trade secrets; lists of and other non-public information about current and prospective customers; business plans or strategies; sales\nand account records; prices or pricing strategy or information; current and proposed advertising and promotional programs; research or development\nprojects or plans; non-public financial information; information relating to personnel, including compensation and other employment practices;\nmethods, systems, techniques, procedures, designs, formulae, inventions, and know-how; and other business information of a similar nature not\ngenerally known to the public, which if misused or disclosed, could adversely affect the business of the Company and/or any Company Affiliate.\nConfidential Information includes any such information that I may prepare or create during my employment, whether on behalf of the Company or\non behalf of any Company Affiliate to whom I am providing services, as well as such information that has been or may be created by others in those\ncapacities. Confidential Information does not include information that is generally known to the public or that has been made known to the public\nthrough no fault of my own.\ne. “Competitor” means any individual, group, company, enterprise, or other entity that develops, manufactures, markets, and/or sells tobacco,\nwine, or other products or technologies that compete (or upon introduction to the marketplace, will compete) with tobacco, wine, or other products or\ntechnologies that are manufactured, marketed, sold, and/or being developed by the Company and/or any Company Affiliate (including but not\nlimited to Philip Morris USA, U.S. Smokeless Tobacco Company, John Middleton Company, and Ste. Michelle Wine Estates). The term\n“Competitor” also includes any other entity under common ownership (in whole or in part) or legal affiliation with a competing entity, as identified\nin the preceding sentence, which provides support to such competing entity.\nUpdated: January 2011\nf. “Competitive Activities” means any employment with, engagement as a consultant or contractor for, rendering of any services to, or other\nmaterial assistance in any capacity to any Competitor.\ng. “Adverse Party” means any individual, group, company, union, governmental body or other entity, excluding a Competitor, that has\npecuniary and/or non-pecuniary interests known to be in opposition or otherwise adverse to those of the Company and/or any Company Affiliate.\n2. During the period of my employment, I will devote my full time and best efforts to the business of the Company and/or any Company Affiliate,\nand I will not take any action that conflicts with the interests of the Company and/or any Company Affiliate. Moreover, I further agree that, during\nmy period of employment, I will take no action that conflicts with or infringes on the rights or interests of any third party for which I have performed\nservices either as an employee, consultant, or contractor. Specifically, I agree that, during the period of my employment, I am not to use or disclose\nany confidential or proprietary information of any third party or otherwise violate any written or verbal agreement I may have entered into with any\nthird party while performing services as an employee, consultant, or contractor of that third party.\n3. Except as authorized by the Company and/or any Company Affiliate or as required by law, I will not at any time during my employment or after\nthe termination of my employment for whatever reason: (a) disclose any Confidential Information to any person, company, agency, institution, or\nother entity, or (b) use any Confidential Information for my own benefit or the benefit of any person, company, agency, institution, or other entity\nexcept the Company and/or any Company Affiliate. I agree that all Confidential Information is, and at all times remains, the property of the\nCompany and/or any Company Affiliate.\n4. I agree that, as used in this Agreement, “Work Product” means and includes all of the following: any invention, discovery, process, method,\ntechnique, formula, concept, idea, work of authorship, and improvement thereof, whether or not it may be protected under patent, copyright,\ntrademark, trade secret or other principles, that is related to the business, anticipated business, research, development, design activities or products of\nthe Company and/or any Company Affiliate.\na. I agree that the Company and/or any Company Affiliate shall have sole and exclusive proprietary rights in and to all Work Product that is\nconceived, developed, or made by me alone or in conjunction with others: (i) during my employment, whether or not during regular working hours,\non Company premises, or with Company materials, and/or (ii) after the termination of my employment, if such Work Product is based on or related\nto, or arises or results from, any work performed by me for the Company or on behalf of any Company Affiliate during my employment. I agree to\ndisclose promptly and fully to the Company all such Work Product. I also agree to treat all such Work Product as Confidential Information except to\nthe extent specifically directed otherwise by the Company and/or any Company Affiliate.\nUpdated: January 2011\n2\nb. I agree to and hereby do assign to the Company and/or any Company Affiliate all right, title, and interest, including all intellectual property\nrights, in and to all Work Product designated in the previous sub-paragraph as the property of the Company and/or any Company Affiliate, including,\nwithout limitation, the assignment of right to claim priority. To the extent that any such Work Product, or portion of such Work Product, is protected\nunder the U.S. Copyright laws, such Work Product shall be considered a “Work Made for Hire” as defined in the U.S . Copyright laws, and shall\nautomatically be owned by the Company and/or any Company Affiliate. During and after my employment, I agree to cooperate fully with the\nCompany and/or any Company Affiliate in the protection (including any litigation or controversy) of any intellectual property rights derived from or\nrelated to its Work Product.\n5. At the end of my employment, regardless of how or why the employment ends, I will surrender and return to the Company any and all property of\nthe Company and/or any Company Affiliate, as well as all copies of written or electronic records of Confidential Information in my possession or\ncontrol.\n6. I agree that, as a result of my exposure to Confidential Information, my responsibilities as an executive of the Company, and my association with\nthe Company and/or any Company Affiliate, their products and technologies, goodwill, and customers and business relationships, I will be in a\nposition to cause irreparable harm to the Company and/or any Company Affiliate. Thus, during my employment and for eighteen (18) months after\nthe end of such employment, regardless of how or why my employment ends, I will not directly or indirectly:\na. Engage in any Competitive Activities if those Competitive Activities would be similar to the services I performed within the last three\n(3) years of my employment.\nb. Organize, establish, or operate as a Competitor.\nc. Engage in any Competitive Activities if, in the performance of those Competitive Activities, I would reasonably be expected to use or would\ninevitably use any Confidential Information learned by me during my employment.\nd. Contact or solicit business from, in a manner competitive with or adverse to the interests of the Company and/or any Company Affiliate, any\ncustomer or potential customer of the Company and/or any Company Affiliate with whom I had contact or for whom I provided services during the\nlast twelve (12) months of my employment.\ne. Solicit or induce any employee of the Company and/or any Company Affiliate to leave the employment of the Company and/or the\nCompany Affiliate.\nf. Hire or otherwise engage the services of any employee of the Company and/or any Company Affiliate.\ng. Assist any Competitor or Adverse Party in taking any of the actions described in subparagraphs (d) through (f) immediately above.\nUpdated: January 2011\n3\nI agree that the Company and/or any Company Affiliate develops, manufactures, markets, and/or sells cigarettes and cigarette-related products\nor technologies that are, or are intended to be, marketed and/or sold throughout the United States, and that my duties will pertain to such products or\ntechnologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United States. I also agree that the\nCompany and/or any Company Affiliate develops, manufactures, markets, and/or sells smokeless tobacco, cigars, wine and other products and\nassociated technologies that are, or are intended to be, marketed and/or sold throughout the United States and foreign countries, and that my duties\nwill pertain to such products or technologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United\nStates and such foreign countries. I further agree that the activities prohibited by this paragraph 6 would be harmful to the Company and/or any\nCompany Affiliate regardless of where those activities occur and that my exposure to Confidential Information, in particular, would give me and any\nCompetitor for whom I provide services an unfair economic advantage. Therefore, I agree that the scope of the restrictions of subparagraphs 6(a) and\n(b) above pertain to: (1) the development, manufacturing, marketing, and/or sale by any Competitor of any cigarettes and cigarette-related products\nor technologies intended for marketing and/or sale in the United States; and (2) the development, manufacturing, marketing, and/or sale by any\nCompetitor of any smokeless tobacco, cigars, wine or other products and associated technologies intended for marketing and/or sale in the United\nStates or intended for marketing and/or sale in any foreign country that the Company and/or any Company Affiliate markets and/or sells similar\nproducts or technologies. I understand that the restrictions of subparagraphs 6(c) through (g) above are tied to information, employees, and/or\ncustomers of the Company and/or any Company Affiliate and therefore are limited in that manner rather than geographically.\nI understand and agree that if at any time I hold an active license to practice law in any jurisdiction, the restrictions of subparagraphs 6(a)\nthrough (g) above do not prohibit me from the practice of law in that jurisdiction and the restrictions of subparagraphs 6(a) through (g) above shall\nbe interpreted to prohibit my activities only to the extent consistent with the applicable rules of professional conduct for that jurisdiction.\n7. If I am offered and want to accept employment with a Competitor or Adverse Party during my employment or the eighteen (18) month period\nfollowing the end of my employment, then prior to my acceptance of such employment I will inform the Company in writing of the identity of the\nCompetitor or Adverse Party, my proposed duties for that Competitor or Adverse Party, and the proposed starting date of that employment. I also\nagree that I will inform the Competitor or Adverse Party of the terms of this Agreement.\n8. I agree that, after the end of my employment, I may engage in any business activity or gainful employment of any type and in any place except as\ndescribed above. I agree that I will be reasonably able to earn a livelihood without violating the terms of this Agreement.\n9. I agree that the Company and/or any Company Affiliate are beneficiaries of this Agreement and have a legitimate business interest in preventing\nme from taking any actions that\nUpdated: January 2011\n4\nwould violate this Agreement. I further agree that the Company and/or any Company Affiliate (individually and taken as a whole) would be\nirreparably harmed if I violated the terms of this Agreement or if any of its terms were not specifically enforced and that money damages would not\nprovide adequate relief. I therefore agree that if I violate or threaten to violate any term of this Agreement, the Company and/or any Company\nAffiliate shall be entitled to injunctive relief, specific performance, any other equitable remedies, and any and all remedies at law, plus its costs and\nattorneys’ fees incurred to enforce this Agreement or to obtain any other relief.\n10. I agree that if the Company and/or any Company Affiliate waive or allow any breach of this Agreement, that waiver or allowance will not be a\nwaiver of any future or other breach, whether of a similar or dissimilar nature.\n11. I agree that each provision of this Agreement is a separate and independent clause. If any clause is found to be unenforceable, that will not impair\nthe enforceability of any other clauses. Further, if any provisions of this Agreement should ever be deemed to exceed the time, geographic area, or\nactivity limitations permitted by applicable law, I agree that such provisions should be and are reformed to the maximum time, geographic area, and\nactivity limitations permitted by applicable law. I authorize a court having jurisdiction to reform the provisions to the maximum time, geographic\narea, and activity limitations permitted by applicable law.\n12. I agree that this Agreement may not be changed, modified or otherwise terminated, in whole or in part, unless agreed to in writing by me, on my\nown behalf, and the Altria Client Services Senior Vice President of Human Resources & Compliance, on behalf of the Company.\n13. I agree that this Agreement constitutes the entire agreement between me and the Company and supersedes any previous agreement I may have\nexecuted with the Company or any Company Affiliate on the topics covered by this Agreement. I further agree that the Company has made no other\nrepresentations to me on the topics covered by this Agreement.\n14. I agree that my employment with the Company is at-will and for no fixed duration. Either the Company or I may terminate the employment\nrelationship at any time, for any reason that either the Company or I may deem appropriate, regardless of whether or not I have violated any term of\nthis Agreement. I further agree that the restrictions set forth in this Agreement will apply regardless of the reason or circumstances of the termination\nof my employment.\n15. I agree that, for purposes of this Agreement, my employment means and includes any periods of employment with the Company or any\nCompany Affiliate after I sign this Agreement. I agree that, if I transfer employment to a Company Affiliate, the terms and conditions of this\nAgreement shall continue in full force and effect, and all rights and obligations belonging to the Company under this Agreement will transfer or\notherwise inure to the Company Affiliate to which I transfer.\n16. I agree that this Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any dispute\narising between the parties related to or involving this Agreement will be litigated in a court having jurisdiction in the Commonwealth of\nUpdated: January 2011\n5\nVirginia, and I agree and stipulate that the Circuit Courts of the City of Richmond, Virginia and the surrounding counties, and the United States\nDistrict Court for the Eastern District of Virginia, Richmond Division, shall have personal jurisdiction over me and that venue is proper in such\ncourts for all actions or proceedings with respect to this Agreement.\nExecutive’s Name\nExecutive’s Signature\nPersonnel Number\nDate\nUpdated: January 2011\n6	EX-10.3 4 dex103.htm FORM OF EXECUTIVE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nEXECUTIVE CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nIn consideration of my 2011 stock award and other good and valuable consideration, the sufficiency of which is acknowledged, the Company and I\nagree to this Executive Confidentiality and Non-Competition Agreement (“Agreement”).\n1. The following definitions apply to this Agreement:\na. “Company” means [Employer Name] and its successors and assigns.\nb. “Company Affiliate” means, excluding the Company itself, Altria Group, its wholly-owned subsidiaries and affiliates, and their successors\nand assigns.\nc. “L,” “me,” or “my” refers to [Executive Name].\nd. “Confidential Information” means information that is confidential and proprietary to the Company and/or any Company Affiliate, including\nbut not limited to: trade secrets; lists of and other non-public information about current and prospective customers; business plans or strategies; sales\nand account records; prices or pricing strategy or information; current and proposed advertising and promotional programs; research or development\nprojects or plans; non-public financial information; information relating to personnel, including compensation and other employment practices;\nmethods, systems, techniques, procedures, designs, formulae, inventions, and know-how; and other business information of a similar nature not\ngenerally known to the public, which if misused or disclosed, could adversely affect the business of the Company and/or any Company Affiliate.\nConfidential Information includes any such information that I may prepare or create during my employment, whether on behalf of the Company or\non behalf of any Company Affiliate to whom I am providing services, as well as such information that has been or may be created by others in those\ncapacities. Confidential Information does not include information that is generally known to the public or that has been made known to the public\nthrough no fault of my own.\ne. “Competitor” means any individual, group, company, enterprise, or other entity that develops, manufactures, markets, and/or sells tobacco,\nwine, or other products or technologies that compete (or upon introduction to the marketplace, will compete) with tobacco, wine, or other products or\ntechnologies that are manufactured, marketed, sold, and/or being developed by the Company and/or any Company Affiliate (including but not\nlimited to Philip Morris USA, U.S. Smokeless Tobacco Company, John Middleton Company, and Ste. Michelle Wine Estates). The term\n“Competitor” also includes any other entity under common ownership (in whole or in part) or legal affiliation with a competing entity, as identified\nin the preceding sentence, which provides support to such competing entity.\nUpdated: January 2011\nf. “Competitive Activities” means any employment with, engagement as a consultant or contractor for, rendering of any services to, or other\nmaterial assistance in any capacity to any Competitor.\ng. “Adverse Party” means any individual, group, company, union, governmental body or other entity, excluding a Competitor, that has\npecuniary and/or non-pecuniary interests known to be in opposition or otherwise adverse to those of the Company and/or any Company Affiliate.\n2. During the period of my employment, I will devote my full time and best efforts to the business of the Company and/or any Company Affiliate,\nand I will not take any action that conflicts with the interests of the Company and/or any Company Affiliate. Moreover, I further agree that, during\nmy period of employment, I will take no action that conflicts with or infringes on the rights or interests of any third party for which I have performed\nservices either as an employee, consultant, or contractor. Specifically, I agree that, during the period of my employment, I am not to use or disclose\nany confidential or proprietary information of any third party or otherwise violate any written or verbal agreement I may have entered into with any\nthird party while performing services as an employee, consultant, or contractor of that third party.\n3. Except as authorized by the Company and/or any Company Affiliate or as required by law, I will not at any time during my employment or after\nthe termination of my employment for whatever reason: (a) disclose any Confidential Information to any person, company, agency, institution, or\nother entity, or (b) use any Confidential Information for my own benefit or the benefit of any person, company, agency, institution, or other entity\nexcept the Company and/or any Company Affiliate. I agree that all Confidential Information is, and at all times remains, the property of the\nCompany and/or any Company Affiliate.\n4.1 agree that, as used in this Agreement, “Work Product” means and includes all of the following: any invention, discovery, process, method,\ntechnique, formula, concept, idea, work of authorship, and improvement thereof, whether or not it may be protected under patent, copyright,\ntrademark, trade secret or other principles, that is related to the business, anticipated business, research, development, design activities or products of\nthe Company and/or any Company Affiliate.\na. I agree that the Company and/or any Company Affiliate shall have sole and exclusive proprietary rights in and to all Work Product that is\nconceived, developed, or made by me alone or in conjunction with others: (i) during my employment, whether or not during regular working hours,\non Company premises, or with Company materials, and/or (ii) after the termination of my employment, if such Work Product is based on or related\nto, or arises or results from, any work performed by me for the Company or on behalf of any Company Affiliate during my employment. I agree to\ndisclose promptly and fully to the Company all such Work Product. I also agree to treat all such Work Product as Confidential Information except to\nthe extent specifically directed otherwise by the Company and/or any Company Affiliate.\nUpdated: January 2011 2\nb. I agree to and hereby do assign to the Company and/or any Company Affiliate all right, title, and interest, including all intellectual property\nrights, in and to all Work Product designated in the previous sub-paragraph as the property of the Company and/or any Company Affiliate, including,\nwithout limitation, the assignment of right to claim priority. To the extent that any such Work Product, or portion of such Work Product, is protected\nunder the U.S. Copyright laws, such Work Product shall be considered a “Work Made for Hire” as defined in the U.S. Copyright laws, and shall\nautomatically be owned by the Company and/or any Company Affiliate. During and after my employment, I agree to cooperate fully with the\nCompany and/or any Company Affiliate in the protection (including any litigation or controversy) of any intellectual property rights derived from or\nrelated to its Work Product.\n5. At the end of my employment, regardless of how or why the employment ends, I will surrender and return to the Company any and all property of\nthe Company and/or any Company Affiliate, as well as all copies of written or electronic records of Confidential Information in my possession or\ncontrol.\n6. I agree that, as a result of my exposure to Confidential Information, my responsibilities as an executive of the Company, and my association with\nthe Company and/or any Company Affiliate, their products and technologies, goodwill, and customers and business relationships, I will be in a\nposition to cause irreparable harm to the Company and/or any Company Affiliate. Thus, during my employment and for eighteen (18) months after\nthe end of such employment, regardless of how or why my employment ends, I will not directly or indirectly:\na. Engage in any Competitive Activities if those Competitive Activities would be similar to the services I performed within the last three\n(3) years of my employment.\nb. Organize, establish, or operate as a Competitor.\nc. Engage in any Competitive Activities if, in the performance of those Competitive Activities, I would reasonably be expected to use or would\ninevitably use any Confidential Information learned by me during my employment.\nd. Contact or solicit business from, in a manner competitive with or adverse to the interests of the Company and/or any Company Affiliate, any\ncustomer or potential customer of the Company and/or any Company Affiliate with whom I had contact or for whom I provided services during the\nlast twelve (12) months of my employment.\ne. Solicit or induce any employee of the Company and/or any Company Affiliate to leave the employment of the Company and/or the\nCompany Affiliate.\nf. Hire or otherwise engage the services of any employee of the Company and/or any Company Affiliate.\ng. Assist any Competitor or Adverse Party in taking any of the actions described in subparagraphs (d) through (f) immediately above.\nUpdated: January 2011 3\nI agree that the Company and/or any Company Affiliate develops, manufactures, markets, and/or sells cigarettes and cigarette-related products\nor technologies that are, or are intended to be, marketed and/or sold throughout the United States, and that my duties will pertain to such products or\ntechnologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United States. I also agree that the\nCompany and/or any Company Affiliate develops, manufactures, markets, and/or sells smokeless tobacco, cigars, wine and other products and\nassociated technologies that are, or are intended to be, marketed and/or sold throughout the United States and foreign countries, and that my duties\nwill pertain to such products or technologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United\nStates and such foreign countries. I further agree that the activities prohibited by this paragraph 6 would be harmful to the Company and/or any\nCompany Affiliate regardless of where those activities occur and that my exposure to Confidential Information, in particular, would give me and any\nCompetitor for whom I provide services an unfair economic advantage. Therefore, I agree that the scope of the restrictions of subparagraphs 6(a) and\n(b) above pertain to: (1) the development, manufacturing, marketing, and/or sale by any Competitor of any cigarettes and cigarette-related products\nor technologies intended for marketing and/or sale in the United States; and (2) the development, manufacturing, marketing, and/or sale by any\nCompetitor of any smokeless tobacco, cigars, wine or other products and associated technologies intended for marketing and/or sale in the United\nStates or intended for marketing and/or sale in any foreign country that the Company and/or any Company Affiliate markets and/or sells similar\nproducts or technologies. I understand that the restrictions of subparagraphs 6(c) through (g) above are tied to information, employees, and/or\ncustomers of the Company and/or any Company Affiliate and therefore are limited in that manner rather than geographically.\nI understand and agree that if at any time I hold an active license to practice law in any jurisdiction, the restrictions of subparagraphs 6(a)\nthrough (g) above do not prohibit me from the practice of law in that jurisdiction and the restrictions of subparagraphs 6(a) through (g) above shall\nbe interpreted to prohibit my activities only to the extent consistent with the applicable rules of professional conduct for that jurisdiction.\n7.1f I am offered and want to accept employment with a Competitor or Adverse Party during my employment or the eighteen (18) month period\nfollowing the end of my employment, then prior to my acceptance of such employment I will inform the Company in writing of the identity of the\nCompetitor or Adverse Party, my proposed duties for that Competitor or Adverse Party, and the proposed starting date of that employment. I also\nagree that I will inform the Competitor or Adverse Party of the terms of this Agreement.\n8. I agree that, after the end of my employment, I may engage in any business activity or gainful employment of any type and in any place except as\ndescribed above. I agree that I will be reasonably able to earn a livelihood without violating the terms of this Agreement.\n9.1 agree that the Company and/or any Company Affiliate are beneficiaries of this Agreement and have a legitimate business interest in preventing\nme from taking any actions that\nUpdated: January 2011 4\nwould violate this Agreement. I further agree that the Company and/or any Company Affiliate (individually and taken as a whole) would be\nirreparably harmed if I violated the terms of this Agreement or if any of its terms were not specifically enforced and that money damages would not\nprovide adequate relief. I therefore agree that if I violate or threaten to violate any term of this Agreement, the Company and/or any Company\nAffiliate shall be entitled to injunctive relief, specific performance, any other equitable remedies, and any and all remedies at law, plus its costs and\nattorneys’ fees incurred to enforce this Agreement or to obtain any other relief.\n10. I agree that if the Company and/or any Company Affiliate waive or allow any breach of this Agreement, that waiver or allowance will not be a\nwaiver of any future or other breach, whether of a similar or dissimilar nature.\n11. T agree that each provision of this Agreement is a separate and independent clause. If any clause is found to be unenforceable, that will not impair\nthe enforceability of any other clauses. Further, if any provisions of this Agreement should ever be deemed to exceed the time, geographic area, or\nactivity limitations permitted by applicable law, I agree that such provisions should be and are reformed to the maximum time, geographic area, and\nactivity limitations permitted by applicable law. I authorize a court having jurisdiction to reform the provisions to the maximum time, geographic\narea, and activity limitations permitted by applicable law.\n12. 1 agree that this Agreement may not be changed, modified or otherwise terminated, in whole or in part, unless agreed to in writing by me, on my\nown behalf, and the Altria Client Services Senior Vice President of Human Resources & Compliance, on behalf of the Company.\n13. I agree that this Agreement constitutes the entire agreement between me and the Company and supersedes any previous agreement I may have\nexecuted with the Company or any Company Affiliate on the topics covered by this Agreement. I further agree that the Company has made no other\nrepresentations to me on the topics covered by this Agreement.\n14.1 agree that my employment with the Company is at-will and for no fixed duration. Either the Company or I may terminate the employment\nrelationship at any time, for any reason that either the Company or I may deem appropriate, regardless of whether or not I have violated any term of\nthis Agreement. I further agree that the restrictions set forth in this Agreement will apply regardless of the reason or circumstances of the termination\nof my employment.\n15. T agree that, for purposes of this Agreement, my employment means and includes any periods of employment with the Company or any\nCompany Affiliate after I sign this Agreement. I agree that, if I transfer employment to a Company Affiliate, the terms and conditions of this\nAgreement shall continue in full force and effect, and all rights and obligations belonging to the Company under this Agreement will transfer or\notherwise inure to the Company Affiliate to which I transfer.\n16. I agree that this Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any dispute\narising between the parties related to or involving this Agreement will be litigated in a court having jurisdiction in the Commonwealth of\nUpdated: January 2011 5\nVirginia, and I agree and stipulate that the Circuit Courts of the City of Richmond, Virginia and the surrounding counties, and the United States\nDistrict Court for the Eastern District of Virginia, Richmond Division, shall have personal jurisdiction over me and that venue is proper in such\ncourts for all actions or proceedings with respect to this Agreement.\nExecutive’s Name Executive’s Signature\nPersonnel Number Date\nUpdated: January 2011	EX-10.3 4 dex103.htm FORM OF EXECUTIVE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nEXECUTIVE CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nIn consideration of my 2011 stock award and other good and valuable consideration, the sufficiency of which is acknowledged, the Company and I\nagree to this Executive Confidentiality and Non-Competition Agreement ("Agreement").\n1.\nThe following definitions apply to this Agreement:\na. "Company" means [Employer Name] and its successors and assigns.\nb. "Company Affiliate" means, excluding the Company itself, Altria Group, its wholly-owned subsidiaries and affiliates, and their successors\nand assigns.\nc. "I," "me," or "my" refers to [Executive Name].\nd. "Confidential Information" means information that is confidential and proprietary to the Company and/or any Company Affiliate, including\nbut not limited to: trade secrets; lists of and other non-public information about current and prospective customers; business plans or strategies; sales\nand account records; prices or pricing strategy or information; current and proposed advertising and promotional programs; research or development\nprojects or plans; non-public financial information; information relating to personnel, including compensation and other employment practices;\nmethods, systems, techniques, procedures, designs, formulae, inventions, and know-how; and other business information of a similar nature not\ngenerally known to the public, which if misused or disclosed, could adversely affect the business of the Company and/or any Company Affiliate.\nConfidential Information includes any such information that I may prepare or create during my employment, whether on behalf of the Company or\non behalf of any Company Affiliate to whom I am providing services, as well as such information that has been or may be created by others in those\ncapacities. Confidential Information does not include information that is generally known to the public or that has been made known to the public\nthrough no fault of my own.\ne. "Competitor" means any individual, group, company, enterprise, or other entity that develops, manufactures, markets, and/or sells tobacco,\nwine,\nor\nother\nproducts\nor\ntechnologies\nthat\ncompete\n(or\nupon\nintroduction\nto\nthe\nmarketplace,\nwill\ncompete)\nwith\ntobacco,\nwine,\nor\nother\nproducts\nor\ntechnologies that are manufactured, marketed, sold, and/or being developed by the Company and/or any Company Affiliate (including but not\nlimited to Philip Morris USA, U.S. Smokeless Tobacco Company, John Middleton Company, and Ste. Michelle Wine Estates). The term\n"Competitor" also includes any other entity under common ownership (in whole or in part) or legal affiliation with a competing entity, as identified\nin the preceding sentence, which provides support to such competing entity.\nUpdated: January 2011\nf. "Competitive Activities" means any employment with, engagement as a consultant or contractor for, rendering of any services to, or other\nmaterial assistance in any capacity to any Competitor.\ng. "Adverse Party" means any individual, group, company, union, governmental body or other entity, excluding a Competitor, that has\npecuniary and/or non-pecuniary interests known to be in opposition or otherwise adverse to those of the Company and/or any Company Affiliate.\n2. During the period of my employment, I will devote my full time and best efforts to the business of the Company and/or any Company Affiliate,\nand I will not take any action that conflicts with the interests of the Company and/or any Company Affiliate. Moreover, I further agree that, during\nmy\nperiod of employment, I will take no action that conflicts with or infringes on the rights or interests of any third party for which I have performed\nservices either as an employee, consultant, or contractor. Specifically, I agree that, during the period of my employment, I am not to use or disclose\nany\nconfidential or proprietary information of any third party or otherwise violate any written or verbal agreement I may have entered into with any\nthird party while performing services as an employee, consultant, or contractor of that third party.\n3. Except as authorized by the Company and/or any Company Affiliate or as required by law, I will not at any time during my employment or after\nthe termination of my employment for whatever reason: (a) disclose any Confidential Information to any person, company, agency, institution, or\nother entity, or (b) use any Confidential Information for my own benefit or the benefit of any person, company, agency, institution, or other entity\nexcept the Company and/or any Company Affiliate. I agree that all Confidential Information is, and at all times remains, the property of the\nCompany and/or any Company Affiliate.\n4. I agree that, as used in this Agreement, "Work Product" means and includes all of the following: any invention, discovery, process, method,\ntechnique, formula, concept, idea, work of authorship, and improvement thereof, whether or not it may be protected under patent, copyright,\ntrademark, trade secret or other principles, that is related to the business, anticipated business, research, development, design activities or products of\nthe Company and/or any Company Affiliate.\na. I agree that the Company and/or any Company Affiliate shall have sole and exclusive proprietary rights in and to all Work Product that is\nconceived, developed, or made by me alone or in conjunction with others: (i) during my employment, whether or not during regular working hours,\non Company premises, or with Company materials, and/or (ii) after the termination of my employment, if such Work Product is based on or related\nto, or arises or results from, any work performed by me for the Company or on behalf of any Company Affiliate during my employment. I agree to\ndisclose promptly and fully to the Company all such Work Product. I also agree to treat all such Work Product as Confidential Information except\nto\nthe extent specifically directed otherwise by the Company and/or any Company Affiliate.\nUpdated: January 2011\n2\nb. I agree to and hereby do assign to the Company and/or any Company Affiliate all right, title, and interest, including all intellectual property\nrights, in and to all Work Product designated in the previous sub-paragraph as the property of the Company and/or any Company Affiliate, including,\nwithout limitation, the assignment of right to claim priority. To the extent that any such Work Product, or portion of such Work Product, is protected\nunder the U.S. Copyright laws, such Work Product shall be considered a "Work Made for Hire" as defined in the U.S. Copyright laws, and shall\nautomatically be owned by the Company and/or any Company Affiliate. During and after my employment, I agree to cooperate fully with the\nCompany and/or any Company Affiliate in the protection (including any litigation or controversy) of any intellectual property rights derived from or\nrelated to its Work Product.\n5. At the end of my employment, regardless of how or why the employment ends, I will surrender and return to the Company any and all property of\nthe Company and/or any Company Affiliate, as well as all copies of written or electronic records of Confidential Information in my possession or\ncontrol.\n6. I agree that, as a result of my exposure to Confidential Information, my responsibilities as an executive of the Company, and my association with\nthe Company and/or any Company Affiliate, their products and technologies, goodwill, and customers and business relationships, I will be in\na\nposition to cause irreparable harm to the Company and/or any Company Affiliate. Thus, during my employment and for eighteen (18) months after\nthe end of such employment, regardless of how or why my employment ends, I will not directly or indirectly:\na. Engage in any Competitive Activities if those Competitive Activities would be similar to the services I performed within the last three\n(3) years of my employment.\nb. Organize, establish, or operate as a Competitor.\nC. Engage in any Competitive Activities if, in the performance of those Competitive Activities, I would reasonably be expected to use or would\ninevitably use any Confidential Information learned by me during my employment.\nd. Contact or solicit business from, in a manner competitive with or adverse to the interests of the Company and/or any Company Affiliate, any\ncustomer or potential customer of the Company and/or any Company Affiliate with whom I had contact or for whom I provided services during the\nlast twelve (12) months of my employment.\ne. Solicit or induce any employee of the Company and/or any Company Affiliate to leave the employment of the Company and/or the\nCompany Affiliate.\nf. Hire or otherwise engage the services of any employee of the Company and/or any Company Affiliate.\ng. Assist any Competitor or Adverse Party in taking any of the actions described in subparagraphs (d) through (f) immediately above.\nUpdated: January 2011\n3\nI agree that the Company and/or any Company Affiliate develops, manufactures, markets, and/or sells cigarettes and cigarette-related products\nor technologies that are, or are intended to be, marketed and/or sold throughout the United States, and that my duties will pertain to such products or\ntechnologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United States. I also agree that the\nCompany and/or any Company Affiliate develops, manufactures, markets, and/or sells smokeless tobacco, cigars, wine and other products and\nassociated technologies that are, or are intended to be, marketed and/or sold throughout the United States and foreign countries, and that my duties\nwill pertain to such products or technologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United\nStates and such foreign countries. I further agree that the activities prohibited by this paragraph 6 would be harmful to the Company and/or any\nCompany Affiliate regardless of where those activities occur and that my exposure to Confidential Information, in particular, would give me and any\nCompetitor for whom I provide services an unfair economic advantage. Therefore, I agree that the scope of the restrictions of subparagraphs 6(a) and\n(b) above pertain to: (1) the development, manufacturing, marketing, and/or sale by any Competitor of any cigarettes and cigarette-related products\nor technologies intended for marketing and/or sale in the United States; and (2) the development, manufacturing, marketing, and/or sale by any\nCompetitor of any smokeless tobacco, cigars, wine or other products and associated technologies intended for marketing and/or sale in the United\nStates or intended for marketing and/or sale in any foreign country that the Company and/or any Company Affiliate markets and/or sells similar\nproducts or technologies. I understand that the restrictions of subparagraphs 6(c) through (g) above are tied to information, employees, and/or\ncustomers of the Company and/or any Company Affiliate and therefore are limited in that manner rather than geographically.\nI understand and agree that if at any time I hold an active license to practice law in any jurisdiction, the restrictions of subparagraphs 6(a)\nthrough (g) above do not prohibit me from the practice of law in that jurisdiction and the restrictions of subparagraphs 6(a) through (g) above\nshall\nbe interpreted to prohibit my activities only to the extent consistent with the applicable rules of professional conduct for that jurisdiction.\n7.\nIf I am offered and want to accept employment with a Competitor or Adverse Party during my employment or the eighteen (18) month period\nfollowing the end of my employment, then prior to my acceptance of such employment I will inform the Company in writing of the identity of the\nCompetitor or Adverse Party, my proposed duties for that Competitor or Adverse Party, and the proposed starting date of that employment. I also\nagree that I will inform the Competitor or Adverse Party of the terms of this Agreement.\n8.\nI agree that, after the end of my employment, I may engage in any business activity or gainful employment of any type and in any place except as\ndescribed above. I agree that I will be reasonably able to earn a livelihood without violating the terms of this Agreement.\n9. I agree that the Company and/or any Company Affiliate are beneficiaries of this Agreement and have a legitimate business interest in preventing\nme from taking any actions that\nUpdated: January 2011\n4\nwould violate this Agreement. I further agree that the Company and/or any Company Affiliate (individually and taken as a whole) would\nbe\nirreparably harmed if I violated the terms of this Agreement or if any of its terms were not specifically enforced and that money damages would not\nprovide adequate relief. I therefore agree that if I violate or threaten to violate any term of this Agreement, the Company and/or any Company\nAffiliate shall be entitled to injunctive relief, specific performance, any other equitable remedies, and any and all remedies at law, plus its costs and\nattorneys' fees incurred to enforce this Agreement or to obtain any other relief.\n10. I agree that if the Company and/or any Company Affiliate waive or allow any breach of this Agreement, that waiver or allowance will not be\na\nwaiver of any future or other breach, whether of a similar or dissimilar nature.\n11. I agree that each provision of this Agreement is a separate and independent clause. If any clause is found to be unenforceable, that will not impair\nthe enforceability of any other clauses. Further, if any provisions of this Agreement should ever be deemed to exceed the time, geographic area, or\nactivity limitations permitted by applicable law, I agree that such provisions should be and are reformed to the maximum time, geographic area, and\nactivity limitations permitted by applicable law. I authorize a court having jurisdiction to reform the provisions to the maximum time, geographic\narea, and activity limitations permitted by applicable law.\n12. I agree that this Agreement may not be changed, modified or otherwise terminated, in whole or in part, unless agreed to in writing by me, on my\nown behalf, and the Altria Client Services Senior Vice President of Human Resources & Compliance, on behalf of the Company.\n13. I agree that this Agreement constitutes the entire agreement between me and the Company and supersedes any previous agreement I may have\nexecuted with the Company or any Company Affiliate on the topics covered by this Agreement I further agree that the Company has made no other\nrepresentations to me on the topics covered by this Agreement.\n14. I agree that my employment with the Company is at-will and for no fixed duration. Either the Company or I may terminate the employment\nrelationship at any time, for any reason that either the Company or I may deem appropriate, regardless of whether or not I have violated any term of\nthis Agreement. I further agree that the restrictions set forth in this Agreement will apply regardless of the reason or circumstances of the termination\nof my employment.\n15. I agree that, for purposes of this Agreement, my employment means and includes any periods of employment with the Company or any\nCompany Affiliate after I sign this Agreement. I agree that, if I transfer employment to a Company Affiliate, the terms and conditions of this\nAgreement shall continue in full force and effect, and all rights and obligations belonging to the Company under this Agreement will transfer or\notherwise inure to the Company Affiliate to which I transfer.\n16. I agree that this Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any dispute\narising between the parties related to or involving this Agreement will be litigated in a court having jurisdiction in the Commonwealth of\nUpdated: January 2011\n5\nVirginia, and I agree and stipulate that the Circuit Courts of the City of Richmond, Virginia and the surrounding counties, and the United States\nDistrict Court for the Eastern District of Virginia, Richmond Division, shall have personal jurisdiction over me and that venue is proper in such\ncourts for all actions or proceedings with respect to this Agreement.\nExecutive's Name\nExecutive's Signature\nPersonnel Number\nDate\nUpdated: January 2011\n6	EX-10.3 4 dex103.htm FORM OF EXECUTIVE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nEXECUTIVE CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nIn consideration of my 2011 stock award and other good and valuable consideration, the sufficiency of which is acknowledged, the Company and I\nagree to this Executive Confidentiality and Non-Competition Agreement (“Agreement”).\n1. The following definitions apply to this Agreement:\na. “Company” means [Employer Name] and its successors and assigns.\nb. “Company Affiliate” means, excluding the Company itself, Altria Group, its wholly-owned subsidiaries and affiliates, and their successors\nand assigns.\nc. “I,” “me,” or “my” refers to [Executive Name].\nd. “Confidential Information” means information that is confidential and proprietary to the Company and/or any Company Affiliate, including\nbut not limited to: trade secrets; lists of and other non-public information about current and prospective customers; business plans or strategies; sales\nand account records; prices or pricing strategy or information; current and proposed advertising and promotional programs; research or development\nprojects or plans; non-public financial information; information relating to personnel, including compensation and other employment practices;\nmethods, systems, techniques, procedures, designs, formulae, inventions, and know-how; and other business information of a similar nature not\ngenerally known to the public, which if misused or disclosed, could adversely affect the business of the Company and/or any Company Affiliate.\nConfidential Information includes any such information that I may prepare or create during my employment, whether on behalf of the Company or\non behalf of any Company Affiliate to whom I am providing services, as well as such information that has been or may be created by others in those\ncapacities. Confidential Information does not include information that is generally known to the public or that has been made known to the public\nthrough no fault of my own.\ne. “Competitor” means any individual, group, company, enterprise, or other entity that develops, manufactures, markets, and/or sells tobacco,\nwine, or other products or technologies that compete (or upon introduction to the marketplace, will compete) with tobacco, wine, or other products or\ntechnologies that are manufactured, marketed, sold, and/or being developed by the Company and/or any Company Affiliate (including but not\nlimited to Philip Morris USA, U.S. Smokeless Tobacco Company, John Middleton Company, and Ste. Michelle Wine Estates). The term\n“Competitor” also includes any other entity under common ownership (in whole or in part) or legal affiliation with a competing entity, as identified\nin the preceding sentence, which provides support to such competing entity.\nUpdated: January 2011\nf. “Competitive Activities” means any employment with, engagement as a consultant or contractor for, rendering of any services to, or other\nmaterial assistance in any capacity to any Competitor.\ng. “Adverse Party” means any individual, group, company, union, governmental body or other entity, excluding a Competitor, that has\npecuniary and/or non-pecuniary interests known to be in opposition or otherwise adverse to those of the Company and/or any Company Affiliate.\n2. During the period of my employment, I will devote my full time and best efforts to the business of the Company and/or any Company Affiliate,\nand I will not take any action that conflicts with the interests of the Company and/or any Company Affiliate. Moreover, I further agree that, during\nmy period of employment, I will take no action that conflicts with or infringes on the rights or interests of any third party for which I have performed\nservices either as an employee, consultant, or contractor. Specifically, I agree that, during the period of my employment, I am not to use or disclose\nany confidential or proprietary information of any third party or otherwise violate any written or verbal agreement I may have entered into with any\nthird party while performing services as an employee, consultant, or contractor of that third party.\n3. Except as authorized by the Company and/or any Company Affiliate or as required by law, I will not at any time during my employment or after\nthe termination of my employment for whatever reason: (a) disclose any Confidential Information to any person, company, agency, institution, or\nother entity, or (b) use any Confidential Information for my own benefit or the benefit of any person, company, agency, institution, or other entity\nexcept the Company and/or any Company Affiliate. I agree that all Confidential Information is, and at all times remains, the property of the\nCompany and/or any Company Affiliate.\n4. I agree that, as used in this Agreement, “Work Product” means and includes all of the following: any invention, discovery, process, method,\ntechnique, formula, concept, idea, work of authorship, and improvement thereof, whether or not it may be protected under patent, copyright,\ntrademark, trade secret or other principles, that is related to the business, anticipated business, research, development, design activities or products of\nthe Company and/or any Company Affiliate.\na. I agree that the Company and/or any Company Affiliate shall have sole and exclusive proprietary rights in and to all Work Product that is\nconceived, developed, or made by me alone or in conjunction with others: (i) during my employment, whether or not during regular working hours,\non Company premises, or with Company materials, and/or (ii) after the termination of my employment, if such Work Product is based on or related\nto, or arises or results from, any work performed by me for the Company or on behalf of any Company Affiliate during my employment. I agree to\ndisclose promptly and fully to the Company all such Work Product. I also agree to treat all such Work Product as Confidential Information except to\nthe extent specifically directed otherwise by the Company and/or any Company Affiliate.\nUpdated: January 2011\n2\nb. I agree to and hereby do assign to the Company and/or any Company Affiliate all right, title, and interest, including all intellectual property\nrights, in and to all Work Product designated in the previous sub-paragraph as the property of the Company and/or any Company Affiliate, including,\nwithout limitation, the assignment of right to claim priority. To the extent that any such Work Product, or portion of such Work Product, is protected\nunder the U.S. Copyright laws, such Work Product shall be considered a “Work Made for Hire” as defined in the U.S . Copyright laws, and shall\nautomatically be owned by the Company and/or any Company Affiliate. During and after my employment, I agree to cooperate fully with the\nCompany and/or any Company Affiliate in the protection (including any litigation or controversy) of any intellectual property rights derived from or\nrelated to its Work Product.\n5. At the end of my employment, regardless of how or why the employment ends, I will surrender and return to the Company any and all property of\nthe Company and/or any Company Affiliate, as well as all copies of written or electronic records of Confidential Information in my possession or\ncontrol.\n6. I agree that, as a result of my exposure to Confidential Information, my responsibilities as an executive of the Company, and my association with\nthe Company and/or any Company Affiliate, their products and technologies, goodwill, and customers and business relationships, I will be in a\nposition to cause irreparable harm to the Company and/or any Company Affiliate. Thus, during my employment and for eighteen (18) months after\nthe end of such employment, regardless of how or why my employment ends, I will not directly or indirectly:\na. Engage in any Competitive Activities if those Competitive Activities would be similar to the services I performed within the last three\n(3) years of my employment.\nb. Organize, establish, or operate as a Competitor.\nc. Engage in any Competitive Activities if, in the performance of those Competitive Activities, I would reasonably be expected to use or would\ninevitably use any Confidential Information learned by me during my employment.\nd. Contact or solicit business from, in a manner competitive with or adverse to the interests of the Company and/or any Company Affiliate, any\ncustomer or potential customer of the Company and/or any Company Affiliate with whom I had contact or for whom I provided services during the\nlast twelve (12) months of my employment.\ne. Solicit or induce any employee of the Company and/or any Company Affiliate to leave the employment of the Company and/or the\nCompany Affiliate.\nf. Hire or otherwise engage the services of any employee of the Company and/or any Company Affiliate.\ng. Assist any Competitor or Adverse Party in taking any of the actions described in subparagraphs (d) through (f) immediately above.\nUpdated: January 2011\n3\nI agree that the Company and/or any Company Affiliate develops, manufactures, markets, and/or sells cigarettes and cigarette-related products\nor technologies that are, or are intended to be, marketed and/or sold throughout the United States, and that my duties will pertain to such products or\ntechnologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United States. I also agree that the\nCompany and/or any Company Affiliate develops, manufactures, markets, and/or sells smokeless tobacco, cigars, wine and other products and\nassociated technologies that are, or are intended to be, marketed and/or sold throughout the United States and foreign countries, and that my duties\nwill pertain to such products or technologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United\nStates and such foreign countries. I further agree that the activities prohibited by this paragraph 6 would be harmful to the Company and/or any\nCompany Affiliate regardless of where those activities occur and that my exposure to Confidential Information, in particular, would give me and any\nCompetitor for whom I provide services an unfair economic advantage. Therefore, I agree that the scope of the restrictions of subparagraphs 6(a) and\n(b) above pertain to: (1) the development, manufacturing, marketing, and/or sale by any Competitor of any cigarettes and cigarette-related products\nor technologies intended for marketing and/or sale in the United States; and (2) the development, manufacturing, marketing, and/or sale by any\nCompetitor of any smokeless tobacco, cigars, wine or other products and associated technologies intended for marketing and/or sale in the United\nStates or intended for marketing and/or sale in any foreign country that the Company and/or any Company Affiliate markets and/or sells similar\nproducts or technologies. I understand that the restrictions of subparagraphs 6(c) through (g) above are tied to information, employees, and/or\ncustomers of the Company and/or any Company Affiliate and therefore are limited in that manner rather than geographically.\nI understand and agree that if at any time I hold an active license to practice law in any jurisdiction, the restrictions of subparagraphs 6(a)\nthrough (g) above do not prohibit me from the practice of law in that jurisdiction and the restrictions of subparagraphs 6(a) through (g) above shall\nbe interpreted to prohibit my activities only to the extent consistent with the applicable rules of professional conduct for that jurisdiction.\n7. If I am offered and want to accept employment with a Competitor or Adverse Party during my employment or the eighteen (18) month period\nfollowing the end of my employment, then prior to my acceptance of such employment I will inform the Company in writing of the identity of the\nCompetitor or Adverse Party, my proposed duties for that Competitor or Adverse Party, and the proposed starting date of that employment. I also\nagree that I will inform the Competitor or Adverse Party of the terms of this Agreement.\n8. I agree that, after the end of my employment, I may engage in any business activity or gainful employment of any type and in any place except as\ndescribed above. I agree that I will be reasonably able to earn a livelihood without violating the terms of this Agreement.\n9. I agree that the Company and/or any Company Affiliate are beneficiaries of this Agreement and have a legitimate business interest in preventing\nme from taking any actions that\nUpdated: January 2011\n4\nwould violate this Agreement. I further agree that the Company and/or any Company Affiliate (individually and taken as a whole) would be\nirreparably harmed if I violated the terms of this Agreement or if any of its terms were not specifically enforced and that money damages would not\nprovide adequate relief. I therefore agree that if I violate or threaten to violate any term of this Agreement, the Company and/or any Company\nAffiliate shall be entitled to injunctive relief, specific performance, any other equitable remedies, and any and all remedies at law, plus its costs and\nattorneys’ fees incurred to enforce this Agreement or to obtain any other relief.\n10. I agree that if the Company and/or any Company Affiliate waive or allow any breach of this Agreement, that waiver or allowance will not be a\nwaiver of any future or other breach, whether of a similar or dissimilar nature.\n11. I agree that each provision of this Agreement is a separate and independent clause. If any clause is found to be unenforceable, that will not impair\nthe enforceability of any other clauses. Further, if any provisions of this Agreement should ever be deemed to exceed the time, geographic area, or\nactivity limitations permitted by applicable law, I agree that such provisions should be and are reformed to the maximum time, geographic area, and\nactivity limitations permitted by applicable law. I authorize a court having jurisdiction to reform the provisions to the maximum time, geographic\narea, and activity limitations permitted by applicable law.\n12. I agree that this Agreement may not be changed, modified or otherwise terminated, in whole or in part, unless agreed to in writing by me, on my\nown behalf, and the Altria Client Services Senior Vice President of Human Resources & Compliance, on behalf of the Company.\n13. I agree that this Agreement constitutes the entire agreement between me and the Company and supersedes any previous agreement I may have\nexecuted with the Company or any Company Affiliate on the topics covered by this Agreement. I further agree that the Company has made no other\nrepresentations to me on the topics covered by this Agreement.\n14. I agree that my employment with the Company is at-will and for no fixed duration. Either the Company or I may terminate the employment\nrelationship at any time, for any reason that either the Company or I may deem appropriate, regardless of whether or not I have violated any term of\nthis Agreement. I further agree that the restrictions set forth in this Agreement will apply regardless of the reason or circumstances of the termination\nof my employment.\n15. I agree that, for purposes of this Agreement, my employment means and includes any periods of employment with the Company or any\nCompany Affiliate after I sign this Agreement. I agree that, if I transfer employment to a Company Affiliate, the terms and conditions of this\nAgreement shall continue in full force and effect, and all rights and obligations belonging to the Company under this Agreement will transfer or\notherwise inure to the Company Affiliate to which I transfer.\n16. I agree that this Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any dispute\narising between the parties related to or involving this Agreement will be litigated in a court having jurisdiction in the Commonwealth of\nUpdated: January 2011\n5\nVirginia, and I agree and stipulate that the Circuit Courts of the City of Richmond, Virginia and the surrounding counties, and the United States\nDistrict Court for the Eastern District of Virginia, Richmond Division, shall have personal jurisdiction over me and that venue is proper in such\ncourts for all actions or proceedings with respect to this Agreement.\nExecutive’s Name\nExecutive’s Signature\nPersonnel Number\nDate\nUpdated: January 2011\n6
2385feca03476ca2bf9acca525a12a60.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of November 19, 2009, between Diedrich Coffee, Inc.\n(“Diedrich”), on the one hand, and Green Mountain Coffee Roasters, Inc. (“Green Mountain”), on the other. Diedrich and Green Mountain are\nreferred to collectively as the “Parties” and each is individually referred to as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible transaction involving Diedrich and Green Mountain, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, subject to Section 8(k), acknowledge and agree as follows:\n1. Limitations on Disclosure and Use of Confidential Information.\n(a) The Recipient will take reasonable precautions (consistent with the precautions it ordinarily takes to safeguard its own confidential\ndocuments) to safeguard the confidentiality of the Provider’s Confidential Information (as defined in section 7 below); provided, however, that:\n(i) the Recipient will be permitted to furnish and otherwise disclose the Provider’s Confidential Information to those of its Representatives who\nneed to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a possible transaction between the\nParties and who are advised or otherwise made aware that such Confidential Information is confidential; and (ii) the Recipient and its\nRepresentatives will be permitted to furnish and otherwise disclose the Provider’s Confidential Information to the extent that the Recipient or\nany of its Representatives determines in good faith that disclosure thereof is required by any law, rule, regulation, judicial order, administrative\norder, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or legal process. If the Recipient or any of\nits Representatives determines in good faith that disclosure of any of Provider’s Confidential Information is required by any law, rule,\nregulation, judicial order, administrative order, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or\nlegal process, then the Recipient or such Representative will provide prompt notice of such disclosure requirement and provide reasonable\ncooperation to the Provider in any attempt by the Provider to obtain a protective order or other appropriate remedy.\n(b) The Recipient will not, and the Recipient will take reasonable precautions to cause its Representatives not to, make use of any of the\nProvider’s Confidential Information, except for the specific purpose of considering, evaluating and negotiating a possible transaction between\nthe Parties.\n(c) Except to the extent required by any law, rule, regulation, judicial order, administrative order, subpoena, interrogatory, discovery\nrequest, investigative demand or other legal requirement or legal process, neither Party will make or permit any disclosure to any Person (other\nthan to such Party’s Representatives who agree not to permit or make any disclosure to any Person) regarding (i) the existence or terms of this\nAgreement, or the fact that Confidential Information has been made available to the Recipient or any of its Representatives, or (ii) the fact that\ndiscussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties (whether the Parties are\nidentified by name or by any description enabling a reasonable Person to discern a Party’s name), or the proposed terms of any such\ntransaction.\n(d) Access to the Provider’s Confidential Information shall not preclude an individual employee or other Representative of the Recipient\nwho has seen or otherwise had access to such Confidential Information for the purposes of this Agreement from working on future projects\nthat relate to similar subject matters, provided that such individual does not use or make reference to the Confidential Information in doing so.\n1\n2. No Representations by Provider. Neither the Provider nor any of its Representatives has made or is making any representation or warranty,\nexpress or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its\nRepresentatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the\nProvider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any)\nthat are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is\nvalidly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.\n3. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will deliver to the\nProvider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)” of the first\nsentence of section 7 below, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their destruction.\nNotwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this\nsection 3, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n4. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with,\nand to enter into any agreement or transaction with, any other interested party; and (ii) except pursuant to this Agreement, such Party will not have\nany rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed\ntransaction involving the other Party.\n5. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n6. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has been brought\nin an inconvenient forum.\n2\n7. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any confidential or proprietary information (including any confidential or proprietary technology, know-how, patent application, test\nresult, research study, business plan, budget, forecast or projection) relating to the business of the Provider, any predecessor entity or any\nsubsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that\nis made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\nand\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\nNotwithstanding the foregoing, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is independently developed by the Recipient or any of the Recipient’s Representatives without the use of\nor reference to any of the Provider’s Confidential Information.\n8. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party\nor of any of such Party’s subsidiaries or other affiliates.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) In any action at law or suit in equity to enforce this Agreement or the rights of any of the Parties, the prevailing party in such action or\nsuit shall be entitled to receive its actual and reasonable attorneys’ fees and all other reasonable costs and expenses incurred in such action or\nsuit, including any related appeals.\n(d) In addition to all other remedies available (at law or otherwise) to a Party, each Party shall be entitled to equitable relief (including\ninjunction and specific performance) as a remedy for any breach or threatened breach of any provision of this Agreement, it being understood\nand agreed that monetary damages may not be a sufficient remedy. Neither Party shall be required to obtain, furnish or post any bond or\nsimilar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph “(d),” and each Party waives any\nright it may have to require that the other Party obtain, furnish or post any such bond or similar instrument.\n3\n(e) The obligations of the Recipient and the Recipient’s Representatives under Section 1 of this Agreement will terminate on the second\nanniversary of the date hereof.\n(f) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(g) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(h) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(i) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(j) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior\nagreement between the Parties regarding the subject matter hereof, including, without limitation, the Mutual Non-Disclosure Agreement, dated\nas of June 18, 2007, between the Parties, as amended by an Amendment No. 1 to Mutual Non-Disclosure Agreement, dated as of July 1, 2009,\nbetween the Parties.\n(k) Reference is made to that certain Agreement and Plan of Merger, dated as of November 2, 2009, by and among Peet’s Coffee & Tea,\nInc., a Washington corporation (“Peet’s”), Marty Acquisition Sub, Inc., a Delaware corporation, and Diedrich (as amended from time to time,\nthe “Merger Agreement”). Notwithstanding anything to the contrary in this Agreement, Diedrich shall not be required to comply with any\nterm of this Agreement if such compliance would result in, or would reasonably be expected to result in, the breach by Diedrich of any term of\nthe Merger Agreement, including, without limitation, the covenants of Diedrich thereunder to inform Peet’s of the existence of this Agreement\nand the terms of any proposed transaction between the Parties.\n4\nThe parties have caused this Agreement to be executed as of the date first written above.\nDIEDRICH COFFEE, INC.\nGREEN MOUNTAIN COFFEE ROASTERS, INC.\nBy:\n/s/ SEAN M. MCCARTHY\nBy:\n/s/ FRANCES G. RATHKE\nTitle:\nChief Financial Officer\nTitle:\nChief Financial Officer\nAddress:\n28 Executive Park, Suite 200\nIrvine, California 92614\nAddress:\n33 Coffee Lane\nWaterbury, VT 05676\n5	EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of November 19, 2009, between Diedrich Coffee, Inc.\n(“Diedrich”), on the one hand, and Green Mountain Coffee Roasters, Inc. (“Green Mountain™), on the other. Diedrich and Green Mountain are\nreferred to collectively as the “Parties” and each is individually referred to as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible transaction involving Diedrich and Green Mountain, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, subject to Section 8(k), acknowledge and agree as follows:\n1. Limitations on Disclosure and Use of Confidential Information.\n(a) The Recipient will take reasonable precautions (consistent with the precautions it ordinarily takes to safeguard its own confidential\ndocuments) to safeguard the confidentiality of the Provider’s Confidential Information (as defined in section 7 below); provided, however, that:\n(i) the Recipient will be permitted to furnish and otherwise disclose the Provider’s Confidential Information to those of its Representatives who\nneed to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a possible transaction between the\nParties and who are advised or otherwise made aware that such Confidential Information is confidential; and (ii) the Recipient and its\nRepresentatives will be permitted to furnish and otherwise disclose the Provider’s Confidential Information to the extent that the Recipient or\nany of its Representatives determines in good faith that disclosure thereof is required by any law, rule, regulation, judicial order, administrative\norder, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or legal process. If the Recipient or any of\nits Representatives determines in good faith that disclosure of any of Provider’s Confidential Information is required by any law, rule,\nregulation, judicial order, administrative order, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or\nlegal process, then the Recipient or such Representative will provide prompt notice of such disclosure requirement and provide reasonable\ncooperation to the Provider in any attempt by the Provider to obtain a protective order or other appropriate remedy.\n(b) The Recipient will not, and the Recipient will take reasonable precautions to cause its Representatives not to, make use of any of the\nProvider’s Confidential Information, except for the specific purpose of considering, evaluating and negotiating a possible transaction between\nthe Parties.\n(c) Except to the extent required by any law, rule, regulation, judicial order, administrative order, subpoena, interrogatory, discovery\nrequest, investigative demand or other legal requirement or legal process, neither Party will make or permit any disclosure to any Person (other\nthan to such Party’s Representatives who agree not to permit or make any disclosure to any Person) regarding (i) the existence or terms of this\nAgreement, or the fact that Confidential Information has been made available to the Recipient or any of its Representatives, or (ii) the fact that\ndiscussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties (whether the Parties are\nidentified by name or by any description enabling a reasonable Person to discern a Party’s name), or the proposed terms of any such\ntransaction.\n(d) Access to the Provider’s Confidential Information shall not preclude an individual employee or other Representative of the Recipient\nwho has seen or otherwise had access to such Confidential Information for the purposes of this Agreement from working on future projects\nthat relate to similar subject matters, provided that such individual does not use or make reference to the Confidential Information in doing so.\n1\n2. No Representations by Provider. Neither the Provider nor any of its Representatives has made or is making any representation or warranty,\nexpress or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its\nRepresentatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the\nProvider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any)\nthat are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is\nvalidly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.\n3. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will deliver to the\nProvider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)” of the first\nsentence of section 7 below, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their destruction.\nNotwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this\nsection 3, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n4. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with,\nand to enter into any agreement or transaction with, any other interested party; and (ii) except pursuant to this Agreement, such Party will not have\nany rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed\ntransaction involving the other Party.\n5. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n6. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has been brought\nin an inconvenient forum.\n7. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any confidential or proprietary information (including any confidential or proprietary technology, know-how, patent application, test\nresult, research study, business plan, budget, forecast or projection) relating to the business of the Provider, any predecessor entity or any\nsubsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that\nis made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\nand\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\nNotwithstanding the foregoing, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is independently developed by the Recipient or any of the Recipient’s Representatives without the use of\nor reference to any of the Provider’s Confidential Information.\n8. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party\nor of any of such Party’s subsidiaries or other affiliates.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) In any action at law or suit in equity to enforce this Agreement or the rights of any of the Parties, the prevailing party in such action or\nsuit shall be entitled to receive its actual and reasonable attorneys’ fees and all other reasonable costs and expenses incurred in such action or\nsuit, including any related appeals.\n(d) In addition to all other remedies available (at law or otherwise) to a Party, each Party shall be entitled to equitable relief (including\ninjunction and specific performance) as a remedy for any breach or threatened breach of any provision of this Agreement, it being understood\nand agreed that monetary damages may not be a sufficient remedy. Neither Party shall be required to obtain, furnish or post any bond or\nsimilar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph “(d),” and each Party waives any\nright it may have to require that the other Party obtain, furnish or post any such bond or similar instrument.\n3\n(e) The obligations of the Recipient and the Recipient’s Representatives under Section 1 of this Agreement will terminate on the second\nanniversary of the date hereof.\n(f) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(g) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(h) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(i) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(j) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior\nagreement between the Parties regarding the subject matter hereof, including, without limitation, the Mutual Non-Disclosure Agreement, dated\nas of June 18, 2007, between the Parties, as amended by an Amendment No. 1 to Mutual Non-Disclosure Agreement, dated as of July 1, 2009,\nbetween the Parties.\n(k) Reference is made to that certain Agreement and Plan of Merger, dated as of November 2, 2009, by and among Peet’s Coffee & Tea,\nInc., a Washington corporation (“Peet’s”), Marty Acquisition Sub, Inc., a Delaware corporation, and Diedrich (as amended from time to time,\nthe “Merger Agreement”). Notwithstanding anything to the contrary in this Agreement, Diedrich shall not be required to comply with any\nterm of this Agreement if such compliance would result in, or would reasonably be expected to result in, the breach by Diedrich of any term of\nthe Merger Agreement, including, without limitation, the covenants of Diedrich thereunder to inform Peet’s of the existence of this Agreement\nand the terms of any proposed transaction between the Parties.\nThe parties have caused this Agreement to be executed as of the date first written above. DIEDRICH COFFEE, INC. By:\nTitle:\nAddress:\n/s/\nSEAN M. MCCARTHY\nChief Financial Officer\n28 Executive Park, Suite 200\nIrvine, California 92614\nGREEN MOUNTAIN COFFEE ROASTERS, INC.\nBy; /s/  FRANCES G. RATHKE\nTitle: Chief Financial Officer\nAddress: 33 Coffee Lane\nWaterbury, VT 05676	EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is being entered into as of November 19, 2009, between Diedrich Coffee, Inc.\n("Diedrich"), on the one hand, and Green Mountain Coffee Roasters, Inc. ("Green Mountain"), on the other. Diedrich and Green Mountain are\nreferred to collectively as the "Parties" and each is individually referred to as a "Party").\nIn order to facilitate the consideration and negotiation of a possible transaction involving Diedrich and Green Mountain, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party's subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the "Provider"; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the "Recipient.") This Agreement sets forth the Parties' obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, subject to Section 8(k), acknowledge and agree as follows:\n1. Limitations on Disclosure and Use of Confidentia Information.\n(a) The Recipient will take reasonable precautions (consistent with the precautions it ordinarily takes to safeguard its own confidential\ndocuments) to safeguard the confidentiality of the Provider's Confidential Information (as defined in section 7 below); provided, however, that:\n(i) the Recipient will be permitted to furnish and otherwise disclose the Provider's Confidentia Information to those of its Representatives who\nneed to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a possible transaction between the\nParties and who are advised or otherwise made aware that such Confidential Information is confidential; and (ii) the Recipient and its\nRepresentatives will be permitted to furnish and otherwise disclose the Provider's Confidential Information to the extent that the Recipient or\nany of its Representatives determines in good faith that disclosure thereof is required by any law, rule, regulation, judicial order, administrative\norder, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or legal process. If the Recipient or any of\nits Representatives determines in good faith that disclosure of any of Provider's Confidential Information is required by any law, rule,\nregulation, judicial order, administrative order, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or\nlegal process, then the Recipient or such Representative will provide prompt notice of such disclosure requirement and provide reasonable\ncooperation to the Provider in any attempt by the Provider to obtain a protective order or other appropriate remedy.\n(b) The Recipient will not, and the Recipient will take reasonable precautions to cause its Representatives not to, make use of any of the\nProvider's Confidential Information, except for the specific purpose of considering, evaluating and negotiating a possible transaction between\nthe Parties.\n(c) Except to the extent required by any law, rule, regulation, judicial order, administrative order, subpoena, interrogatory, discovery\nrequest, investigative demand or other legal requirement or legal process, neither Party will make or permit any disclosure to any Person (other\nthan\nto\nsuch\nParty's\nRepresentatives\nwho\nagree\nnot\nto\npermit\nor\nmake\nany\ndisclosure\nto\nany\nPerson)\nregarding\n(i)\nthe\nexistence\nor\nterms\nof\nthis\nAgreement, or the fact that Confidential Information has been made available to the Recipient or any of its Representatives, or (ii) the fact that\ndiscussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties (whether the Parties are\nidentified by name or by any description enabling a reasonable Person to discern a Party's name), or the proposed terms of any such\ntransaction.\n(d) Access to the Provider's Confidential Information shall not preclude an individual employee or other Representative of the Recipient\nwho has seen or otherwise had access to such Confidential Information for the purposes of this Agreement from working on future projects\nthat relate to similar subject matters, provided that such individual does not use or make reference to the Confidential Information in doing so.\n1\n2. No Representations by Provider. Neither the Provider nor any of its Representatives has made or is making any representation or warranty,\nexpress or implied, as to the accuracy or completeness of any of the Provider's Confidential Information, and neither the Provider nor any of its\nRepresentatives will have any liability to the Recipient or to any of the Recipient's Representatives relating to or resulting from the use of any of the\nProvider's Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any)\nthat are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is\nvalidly executed on behalf of the Parties (a "Definitive Agreement") will have legal effect.\n3. Return of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will deliver to the\nProvider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient's\nRepresentatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause "(b)" of the first\nsentence of section 7 below, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their destruction.\nNotwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this\nsection 3, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n4.\nNo Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with,\nand to enter into any agreement or transaction with, any other interested party; and (ii) except pursuant to this Agreement, such Party will not have\nany rights or claims against the other Party or any of the other Party's Representatives arising out of or relating to any transaction or proposed\ntransaction involving the other Party.\n5. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n6. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit\nor\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has been brought\nin an inconvenient forum.\n2\n7. Confidential Information. For purposes of this Agreement, the Provider's "Confidential Information" will be deemed to include only the\nfollowing:\n(a) any confidential or proprietary information (including any confidential or proprietary technology, know-how, patent application, test\nresult, research study, business plan, budget, forecast or projection) relating to the business of the Provider, any predecessor entity or any\nsubsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that\nis\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\nand\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause "(a)" of this sentence;\nNotwithstanding the foregoing, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof\nany of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of the\nRecipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider's Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is independently developed by the Recipient or any of the Recipient's Representatives without the use of\nor reference to any of the Provider's Confidential Information.\n8. Miscellaneous.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party\nor of any of such Party's subsidiaries or other affiliates.\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) In any action at law or suit in equity to enforce this Agreement or the rights of any of the Parties, the prevailing party in such action or\nsuit shall be entitled to receive its actual and reasonable attorneys' fees and all other reasonable costs and expenses incurred in such action or\nsuit, including any related appeals.\n(d) In addition to all other remedies available (at law or otherwise) to a Party, each Party shall be entitled to equitable relief (including\ninjunction and specific performance) as a remedy for any breach or threatened breach of any provision of this Agreement, it being understood\nand agreed that monetary damages may not be a sufficient remedy. Neither Party shall be required to obtain, furnish or post any bond or\nsimilar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph "(d)," and each Party waives any\nright it may have to require that the other Party obtain, furnish or post any such bond or similar instrument.\n3\n(e) The obligations of the Recipient and the Recipient's Representatives under Section 1 of this Agreement will terminate on the second\nanniversary of the date hereof.\n(f) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(g) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(h) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(i) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties' mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(j) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior\nagreement between the Parties regarding the subject matter hereof, including, without limitation, the Mutual Non-Disclosure Agreement, dated\nas of June 18, 2007, between the Parties, as amended by an Amendment No. 1 to Mutual Non-Disclosure Agreement, dated as of July 1, 2009,\nbetween the Parties.\n(k) Reference is made to that certain Agreement and Plan of Merger, dated as of November 2, 2009, by and among Peet's Coffee & Tea,\nInc., a Washington corporation ("Peet's"), Marty Acquisition Sub, Inc., a Delaware corporation, and Diedrich (as amended from time to time,\nthe "Merger Agreement"). Notwithstanding anything to the contrary in this Agreement, Diedrich shall not be required to comply with any\nterm of this Agreement if such compliance would result in, or would reasonably be expected to result in, the breach by Diedrich of any term of\nthe Merger Agreement, including, without limitation, the covenants of Diedrich thereunder to inform Peet's of the existence of this Agreement\nand the terms of any proposed transaction between the Parties.\n4\nThe parties have caused this Agreement to be executed as of the date first written above.\nDIEDRICH COFFEE, INC.\nGREEN MOUNTAIN COFFEE ROASTERS, INC.\nBy:\n/s/ SEAN M. MCCARTHY\nBy:\n/s/ FRANCES G. RATHKE\nTitle:\nChief Financial Officer\nTitle:\nChief Financial Officer\nAddress:\n28 Executive Park, Suite 200\nAddress:\n33 Coffee Lane\nIrvine, California 92614\nWaterbury, VT 05676\n5	EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of November 19, 2009, between Diedrich Coffee, Inc.\n(“Diedrich”), on the one hand, and Green Mountain Coffee Roasters, Inc. (“Green Mountain”), on the other. Diedrich and Green Mountain are\nreferred to collectively as the “Parties” and each is individually referred to as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible transaction involving Diedrich and Green Mountain, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, subject to Section 8(k), acknowledge and agree as follows:\n1. Limitations on Disclosure and Use of Confidential Information.\n(a) The Recipient will take reasonable precautions (consistent with the precautions it ordinarily takes to safeguard its own confidential\ndocuments) to safeguard the confidentiality of the Provider’s Confidential Information (as defined in section 7 below); provided, however, that:\n(i) the Recipient will be permitted to furnish and otherwise disclose the Provider’s Confidential Information to those of its Representatives who\nneed to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a possible transaction between the\nParties and who are advised or otherwise made aware that such Confidential Information is confidential; and (ii) the Recipient and its\nRepresentatives will be permitted to furnish and otherwise disclose the Provider’s Confidential Information to the extent that the Recipient or\nany of its Representatives determines in good faith that disclosure thereof is required by any law, rule, regulation, judicial order, administrative\norder, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or legal process. If the Recipient or any of\nits Representatives determines in good faith that disclosure of any of Provider’s Confidential Information is required by any law, rule,\nregulation, judicial order, administrative order, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or\nlegal process, then the Recipient or such Representative will provide prompt notice of such disclosure requirement and provide reasonable\ncooperation to the Provider in any attempt by the Provider to obtain a protective order or other appropriate remedy.\n(b) The Recipient will not, and the Recipient will take reasonable precautions to cause its Representatives not to, make use of any of the\nProvider’s Confidential Information, except for the specific purpose of considering, evaluating and negotiating a possible transaction between\nthe Parties.\n(c) Except to the extent required by any law, rule, regulation, judicial order, administrative order, subpoena, interrogatory, discovery\nrequest, investigative demand or other legal requirement or legal process, neither Party will make or permit any disclosure to any Person (other\nthan to such Party’s Representatives who agree not to permit or make any disclosure to any Person) regarding (i) the existence or terms of this\nAgreement, or the fact that Confidential Information has been made available to the Recipient or any of its Representatives, or (ii) the fact that\ndiscussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties (whether the Parties are\nidentified by name or by any description enabling a reasonable Person to discern a Party’s name), or the proposed terms of any such\ntransaction.\n(d) Access to the Provider’s Confidential Information shall not preclude an individual employee or other Representative of the Recipient\nwho has seen or otherwise had access to such Confidential Information for the purposes of this Agreement from working on future projects\nthat relate to similar subject matters, provided that such individual does not use or make reference to the Confidential Information in doing so.\n1\n2. No Representations by Provider. Neither the Provider nor any of its Representatives has made or is making any representation or warranty,\nexpress or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its\nRepresentatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the\nProvider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any)\nthat are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is\nvalidly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.\n3. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will deliver to the\nProvider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)” of the first\nsentence of section 7 below, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their destruction.\nNotwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this\nsection 3, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n4. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with,\nand to enter into any agreement or transaction with, any other interested party; and (ii) except pursuant to this Agreement, such Party will not have\nany rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed\ntransaction involving the other Party.\n5. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n6. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has been brought\nin an inconvenient forum.\n2\n7. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any confidential or proprietary information (including any confidential or proprietary technology, know-how, patent application, test\nresult, research study, business plan, budget, forecast or projection) relating to the business of the Provider, any predecessor entity or any\nsubsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that\nis made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\nand\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\nNotwithstanding the foregoing, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is independently developed by the Recipient or any of the Recipient’s Representatives without the use of\nor reference to any of the Provider’s Confidential Information.\n8. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party\nor of any of such Party’s subsidiaries or other affiliates.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) In any action at law or suit in equity to enforce this Agreement or the rights of any of the Parties, the prevailing party in such action or\nsuit shall be entitled to receive its actual and reasonable attorneys’ fees and all other reasonable costs and expenses incurred in such action or\nsuit, including any related appeals.\n(d) In addition to all other remedies available (at law or otherwise) to a Party, each Party shall be entitled to equitable relief (including\ninjunction and specific performance) as a remedy for any breach or threatened breach of any provision of this Agreement, it being understood\nand agreed that monetary damages may not be a sufficient remedy. Neither Party shall be required to obtain, furnish or post any bond or\nsimilar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph “(d),” and each Party waives any\nright it may have to require that the other Party obtain, furnish or post any such bond or similar instrument.\n3\n(e) The obligations of the Recipient and the Recipient’s Representatives under Section 1 of this Agreement will terminate on the second\nanniversary of the date hereof.\n(f) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(g) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(h) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(i) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(j) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior\nagreement between the Parties regarding the subject matter hereof, including, without limitation, the Mutual Non-Disclosure Agreement, dated\nas of June 18, 2007, between the Parties, as amended by an Amendment No. 1 to Mutual Non-Disclosure Agreement, dated as of July 1, 2009,\nbetween the Parties.\n(k) Reference is made to that certain Agreement and Plan of Merger, dated as of November 2, 2009, by and among Peet’s Coffee & Tea,\nInc., a Washington corporation (“Peet’s”), Marty Acquisition Sub, Inc., a Delaware corporation, and Diedrich (as amended from time to time,\nthe “Merger Agreement”). Notwithstanding anything to the contrary in this Agreement, Diedrich shall not be required to comply with any\nterm of this Agreement if such compliance would result in, or would reasonably be expected to result in, the breach by Diedrich of any term of\nthe Merger Agreement, including, without limitation, the covenants of Diedrich thereunder to inform Peet’s of the existence of this Agreement\nand the terms of any proposed transaction between the Parties.\n4\nThe parties have caused this Agreement to be executed as of the date first written above.\nDIEDRICH COFFEE, INC.\nGREEN MOUNTAIN COFFEE ROASTERS, INC.\nBy:\n/s/ SEAN M. MCCARTHY\nBy:\n/s/ FRANCES G. RATHKE\nTitle:\nChief Financial Officer\nTitle:\nChief Financial Officer\nAddress:\n28 Executive Park, Suite 200\nIrvine, California 92614\nAddress:\n33 Coffee Lane\nWaterbury, VT 05676\n5
2464daf5ceb9add8636d6fcb3c803d29.pdf	effective_date jurisdiction party term	EX-10 .3 4 ex10-3 .htm\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “NDA”) is made as of December 9th, 2014 (the “Effective Date”) by and between DigiPath,\nInc., located at 6450 Cameron Street, Suite 113, Las Vegas, Nevada 89118 (“Discloser”), and W-Net, Inc. (“Recipient”).\n1. Scope of NDA. This NDA governs all disclosures of Confidential Information by Discloser in the course of exploring one or more strategic\nbusiness transactions or relationships with Recipient (“Strategic Discussions”).\n2. Definitions. “Confidential Information” means any of Discloser ’s (or its Affiliates’) information, including, without limitation, science,\nformulas, patterns, compilations, programs, software, devices, designs, drawings, methods, techniques and processes, financial information\nand data, business plans, business strategies, marketing plans, customer lists, price lists, cost information, information about employees,\ndescriptions of inventions, process descriptions, descriptions of technical know-how, information and descriptions of new products and new\nproduct development, scientific and technical specifications and documentation, and pending or abandoned patent applications of a party,\nnow known or in possession of, or hereafter learned or acquired, that derives economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use.\nAll Confidential Information disclosed in tangible form must be marked as “confidential” or “proprietary” or with words of similar import,\nand all Confidential Information disclosed orally must be identified as confidential at the time of disclosure and summarized in writing\nwithin thirty (30) days of disclosure. “Affiliate”, with respect to any Person, means any other Person that, directly or indirectly, is controlled\nby, controls or is under common control with that Person, including, without limitation, any officer, director, manager, general partner,\ncontrolling stockholder or managing member of any Person. “Control”, with respect to any Person, means the power, directly or indirectly,\nto direct the management and policies of that Person. “Person” shall be broadly interpreted to include, without limitation, any individual,\ncorporation, company, association, partnership, joint venture, trust, estate, governmental agency or other entity of whatsoever kind or nature.\n3. Exceptions. Confidential Information does not include information which: (i) is in the possession of the Recipient at the time of disclosure\nas shown by the Recipient’s files and records immediately prior to the time of disclosure; (ii) prior or after the time of disclosure becomes\npart of the public knowledge or literature, not as a result of any inaction or action of the Recipient; (iii) is lawfully obtained from a third\nparty without any breach of a confidentiality obligation to the Discloser; (iv) is approved for release by the Discloser in writing; or (v) is\nshown by written record to be developed independently by the Recipient.\n4. Non-use and Nondisclosure. The Recipient agrees not to use the Confidential Information for any purpose except to conduct the Strategic\nDiscussions. Recipient will not disclose any Confidential Information to any third parties except those directors, officers, employees,\nconsultants and agents who have a need to know the Confidential Information in order to carry out the Strategic Discussions. Recipient shall\nensure that all such persons are bound by non-disclosure terms in content substantially similar to this NDA. Recipient will be responsible for\nbreaches of this NDA by any such person. Recipient agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information, which measures shall include the highest degree of care the Recipient utilizes to protect its\nown Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Recipient agrees to notify Discloser\nin writing of any misuse or misappropriation of such Confidential Information which may come to its attention.\n5. Mandatory Disclosure. In the event that Recipient or its respective directors, officers, employees, consultants or agents are requested or\nrequired by legal process to disclose any of Discloser’s Confidential Information, Recipient shall give prompt written notice (to the extent\nlegally permissible) so that Discloser may seek a protective order or other appropriate relief. In the event that such protective order is not\nobtained, Recipient shall disclose only that portion of the Confidential Information that its counsel advises that it is legally required to\ndisclose.\n6. Return of Materials. Any materials or documents embodying Confidential Information which have been furnished to the Recipient will be\npromptly returned, accompanied by all copies of such documentation upon the earlier of the written request thereof by Discloser or the\ntermination or expiration of this NDA. Notwithstanding the return of Confidential Information, Recipient will continue to be bound by the\nobligations of confidentiality hereunder.\n7. No License Granted. Nothing in this NDA is intended to grant Recipient any rights under any patent, copyright, trade secret or other\nintellectual property right, nor shall this NDA grant Recipient any rights in or to Discloser ’s Confidential Information except the limited\nright to review such Confidential Information solely for the purposes set forth in Section 1. All such rights shall remain exclusively owned\nby Discloser. Recipient shall not derive or attempt to derive source code, reverse engineer, disassemble or decompile any products, models,\nprototypes, software or other objects that embody the Confidential Information of the Discloser.\n8. No Representations. Recipient hereby acknowledges that the Discloser makes no representation or warranty, express or implied, as to the\naccuracy or completeness of the Confidential Information or any component thereof, and that any information being provided by the\nDiscloser pursuant to this NDA is being provided “as is”. The parties agree that any Strategic Discussions contemplated by this NDA may or\nmay not lead to business or other relationships between them and no party has any obligation to disclose any Confidential Information or\nconclude any such relationships or enter into any further agreements.\n9. Term. This NDA shall continue in effect until the first anniversary of the Effective Date.\n10. Publicity. Recipient agrees that neither Recipient nor its Affiliates or representatives shall disclose to any Person who is not authorized to\nreceive the Confidential Information either the fact that this NDA exists, that discussions or negotiations are taking place concerning\nStrategic Discussions or any of the terms, conditions or other facts with respect to any aspect of the Strategic Discussions, including the\nstatus thereof or the Persons involved, except as required as a result of any legal process after compliance by Recipient with the provisions\nof Section 5.\nNONDISCLOSURE AGREEMENT\n11. Miscellaneous.\na. This NDA shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that this NDA or\nthe Confidential Information of the Discloser may not be assigned by Recipient without the prior written consent of the Discloser.\nFailure to enforce any provision of this NDA shall not constitute a waiver of any term hereof. A waiver given on any one occasion is\neffective only in that instance and will not be construed as a waiver of any right on any other occasion.\nb. If any provision of this NDA shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\nc. This NDA sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or\ncontemporaneous agreements, proposals, understandings and representations, written or oral, between the parties with respect to the\nsubject matter hereof. All modifications of, waivers of and amendments to this NDA or any part hereof, must be in writing and signed\non behalf of each party. This NDA may be executed in counterparts, including facsimile, PDF or other electronic copies thereof, and\neach such counterpart shall be an original and altogether shall constitute but one and the same document.\n12. Governing Law and Jurisdiction. This NDA shall be governed by and construed and enforced in accordance with the internal law of the\nState of California, without regard to any choice-of-law provisions, and shall be binding upon the parties hereto in the United States and\nworldwide. The federal and state courts located in the State of California shall have exclusive jurisdiction to adjudicate any dispute arising\nout of this NDA.\n13. Injunctive Relief. Recipient agrees and acknowledges that any violation or threatened violation of this NDA will cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to obtain\ninjunctive relief against the threatened breach of this NDA or the continuation of any such breach, in any court of competent jurisdiction\n(notwithstanding the provisions of Section 12), without the necessity of proving actual damages or posting a bond.\nACCEPTED AND AGREED:\nW-NET, INC.\nDIGIPATH, INC.\nBy: /s/ David Weiner\nBy: /s/ Todd Denkin\n(Signature)\n(Signature)\nName: David Weiner\nName: Todd Denkin\nTitle: President\nTitle: CEO	EX-10.3 4 ex10-3.htm NONDISCLOSURE AGREEMENT THIS NONDISCLOSURE AGREEMENT (this “NDA”) is made as of December oth 2014 (the “Effective Date”) by and between DigiPath, Inc., located at 6450 Cameron Street, Suite 113, Las Vegas, Nevada 89118 (“Discloser”), and W-Net, Inc. (“Recipient”). 10. Scope of NDA. This NDA governs all disclosures of Confidential Information by Discloser in the course of exploring one or more strategic\nbusiness transactions or relationships with Recipient (“Strategic Discussions™).\nDefinitions. “Confidential Information” means any of Discloser’s (or its Affiliates’) information, including, without limitation, science,\nformulas, patterns, compilations, programs, software, devices, designs, drawings, methods, techniques and processes, financial information\nand data, business plans, business strategies, marketing plans, customer lists, price lists, cost information, information about employees,\ndescriptions of inventions, process descriptions, descriptions of technical know-how, information and descriptions of new products and new\nproduct development, scientific and technical specifications and documentation, and pending or abandoned patent applications of a party,\nnow known or in possession of, or hereafter learned or acquired, that derives economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use.\nAll Confidential Information disclosed in tangible form must be marked as “confidential” or “proprietary” or with words of similar import,\nand all Confidential Information disclosed orally must be identified as confidential at the time of disclosure and summarized in writing\nwithin thirty (30) days of disclosure. “Affiliate”, with respect to any Person, means any other Person that, directly or indirectly, is controlled\nby, controls or is under common control with that Person, including, without limitation, any officer, director, manager, general partner,\ncontrolling stockholder or managing member of any Person. “Control”, with respect to any Person, means the power, directly or indirectly,\nto direct the management and policies of that Person. “Person” shall be broadly interpreted to include, without limitation, any individual,\ncorporation, company, association, partnership, joint venture, trust, estate, governmental agency or other entity of whatsoever kind or nature.\nExceptions. Confidential Information does not include information which: (i) is in the possession of the Recipient at the time of disclosure\nas shown by the Recipient’s files and records immediately prior to the time of disclosure; (ii) prior or after the time of disclosure becomes\npart of the public knowledge or literature, not as a result of any inaction or action of the Recipient; (iii) is lawfully obtained from a third\nparty without any breach of a confidentiality obligation to the Discloser; (iv) is approved for release by the Discloser in writing; or (v) is\nshown by written record to be developed independently by the Recipient.\nNon-use and Nondisclosure. The Recipient agrees not to use the Confidential Information for any purpose except to conduct the Strategic\nDiscussions. Recipient will not disclose any Confidential Information to any third parties except those directors, officers, employees,\nconsultants and agents who have a need to know the Confidential Information in order to carry out the Strategic Discussions. Recipient shall\nensure that all such persons are bound by non-disclosure terms in content substantially similar to this NDA. Recipient will be responsible for\nbreaches of this NDA by any such person. Recipient agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information, which measures shall include the highest degree of care the Recipient utilizes to protect its\nown Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Recipient agrees to notify Discloser\nin writing of any misuse or misappropriation of such Confidential Information which may come to its attention.\nMandatory Disclosure. In the event that Recipient or its respective directors, officers, employees, consultants or agents are requested or\nrequired by legal process to disclose any of Discloser’s Confidential Information, Recipient shall give prompt written notice (to the extent\nlegally permissible) so that Discloser may seek a protective order or other appropriate relief. In the event that such protective order is not\nobtained, Recipient shall disclose only that portion of the Confidential Information that its counsel advises that it is legally required to\ndisclose.\nReturn of Materials. Any materials or documents embodying Confidential Information which have been furnished to the Recipient will be\npromptly returned, accompanied by all copies of such documentation upon the earlier of the written request thereof by Discloser or the\ntermination or expiration of this NDA. Notwithstanding the return of Confidential Information, Recipient will continue to be bound by the\nobligations of confidentiality hereunder.\nNo License Granted. Nothing in this NDA is intended to grant Recipient any rights under any patent, copyright, trade secret or other\nintellectual property right, nor shall this NDA grant Recipient any rights in or to Discloser’s Confidential Information except the limited\nright to review such Confidential Information solely for the purposes set forth in Section 1. All such rights shall remain exclusively owned\nby Discloser. Recipient shall not derive or attempt to derive source code, reverse engineer, disassemble or decompile any products, models,\nprototypes, software or other objects that embody the Confidential Information of the Discloser.\nNo Representations. Recipient hereby acknowledges that the Discloser makes no representation or warranty, express or implied, as to the\naccuracy or completeness of the Confidential Information or any component thereof, and that any information being provided by the\nDiscloser pursuant to this NDA is being provided “as is”. The parties agree that any Strategic Discussions contemplated by this NDA may or\nmay not lead to business or other relationships between them and no party has any obligation to disclose any Confidential Information or\nconclude any such relationships or enter into any further agreements.\nTerm. This NDA shall continue in effect until the first anniversary of the Effective Date.\nPublicity. Recipient agrees that neither Recipient nor its Affiliates or representatives shall disclose to any Person who is not authorized to\nreceive the Confidential Information either the fact that this NDA exists, that discussions or negotiations are taking place concerning\nStrategic Discussions or any of the terms, conditions or other facts with respect to any aspect of the Strategic Discussions, including the\nstatus thereof or the Persons involved, except as required as a result of any legal process after compliance by Recipient with the provisions\nof Section 5.\nNONDISCLOSURE AGREEMENT\n11. Miscellaneous.\na. This NDA shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that this NDA or\nthe Confidential Information of the Discloser may not be assigned by Recipient without the prior written consent of the Discloser.\nFailure to enforce any provision of this NDA shall not constitute a waiver of any term hereof. A waiver given on any one occasion is\neffective only in that instance and will not be construed as a waiver of any right on any other occasion.\nb. If any provision of this NDA shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\nc. This NDA sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or\ncontemporaneous agreements, proposals, understandings and representations, written or oral, between the parties with respect to the\nsubject matter hereof. All modifications of, waivers of and amendments to this NDA or any part hereof, must be in writing and signed\non behalf of each party. This NDA may be executed in counterparts, including facsimile, PDF or other electronic copies thereof, and\neach such counterpart shall be an original and altogether shall constitute but one and the same document.\n12. Governing I.aw and Jurisdiction. This NDA shall be governed by and construed and enforced in accordance with the internal law of the\nState of California, without regard to any choice-of-law provisions, and shall be binding upon the parties hereto in the United States and\nworldwide. The federal and state courts located in the State of California shall have exclusive jurisdiction to adjudicate any dispute arising\nout of this NDA.\n13. Injunctive Relief. Recipient agrees and acknowledges that any violation or threatened violation of this NDA will cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to obtain\ninjunctive relief against the threatened breach of this NDA or the continuation of any such breach, in any court of competent jurisdiction\n(notwithstanding the provisions of Section 12), without the necessity of proving actual damages or posting a bond.\nACCEPTED AND AGREED:\nW-NET, INC. DIGIPATH, INC.\nBy: /s/David Weiner By: /s/ Todd Denkin\n(Signature) (Signature)\nName: David Weiner Name: Todd Denkin\nTitle: President Title: CEO	EX-10.3 4 x10-3.htm\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this "NDA") is made as of December th 2014 (the "Effective Date") by and between DigiPath,\nInc., located at 6450 Cameron Street, Suite 113, Las Vegas, Nevada 89118 ("Discloser"), and W-Net, Inc. ("Recipient").\n1.\nScope of NDA. This NDA governs all disclosures of Confidential Information by Discloser in the course of exploring one or more strategic\nbusiness transactions or relationships with Recipient ("Strategic Discussions").\n2. Definitions. "Confidential Information" means any of Discloser's (or its Affiliates') information, including, without limitation, science,\nformulas, patterns, compilations, programs, software, devices, designs, drawings, methods, techniques and processes, financial information\nand data, business plans, business strategies, marketing plans, customer lists, price lists, cost information, information about employees,\ndescriptions of inventions, process descriptions, descriptions of technical know-how, information and descriptions of new products and new\nproduct development, scientific and technical specifications and documentation, and pending or abandoned patent applications of a party,\nnow known or in possession of, or hereafter learned or acquired, that derives economic value, actual or potential, from not being generally\nknown\nto,\nand\nnot\nbeing\nreadily\nascertainable\nby\nproper\nmeans\nby\nother\npersons\nwho\ncan\nobtain\neconomic\nvalue\nfrom\nits\ndisclosure\nor\nuse.\nAll Confidential Information disclosed in tangible form must be marked as "confidential" or "proprietary" or with words of similar import,\nand all Confidential Information disclosed orally must be identified as confidential at the time of disclosure and summarized in writing\nwithin\nthirty (30) days of disclosure. "Affiliate", with respect to any Person, means any other Person that, directly or indirectly, is controlled\nby, controls or is under common control with that Person, including, without limitation, any officer, director, manager, general partner,\ncontrolling stockholder or managing member of any Person. "Control", with respect to any Person, means the power, directly or indirectly,\nto\ndirect the management and policies of that Person. "Person" shall be broadly interpreted to include, without limitation, any individual,\ncorporation, company, association, partnership, joint venture, trust, estate, governmental agency or other entity of whatsoever kind or nature.\n3.\nExceptions.\nConfidential\nInformation\ndoes\nnot\ninclude\ninformation\nwhich:\n(i)\nis\nin\nthe\npossession\nof\nthe\nRecipient\nat\nthe\ntime\nof\ndisclosure\nas shown by the Recipient's files and records immediately prior to the time of disclosure; (ii) prior or after the time of disclosure becomes\npart of the public knowledge or literature, not as a result of any inaction or action of the Recipient; (iii) is lawfully obtained from a third\nparty without any breach of a confidentiality obligation to the Discloser; (iv) is approved for release by the Discloser in writing; or (v) is\nshown by written record to be developed independently by the Recipient.\n4. Non-use and Nondisclosure. The Recipient agrees not to use the Confidential Information for any purpose except to conduct the Strategic\nDiscussions. Recipient will not disclose any Confidential Information to any third parties except those directors, officers, employees,\nconsultants and agents who have a need to know the Confidential Information in order to carry out the Strategic Discussions. Recipient shall\nensure that all such persons are bound by non-disclosure terms in content substantially similar to this NDA. Recipient will be responsible for\nbreaches of this NDA by any such person. Recipient agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information, which measures shall include the highest degree of care the Recipient utilizes to protect its\nown Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Recipient agrees to notify Discloser\nin writing of any misuse or misappropriation of such Confidential Information which may come to its attention.\n5.\nMandatory. Disclosure. In the event that Recipient or its respective directors, officers, employees, consultants or agents are requested or\nrequired by legal process to disclose any of Discloser's Confidential Information, Recipient shall give prompt written notice (to the extent\nlegally permissible) so that Discloser may seek a protective order or other appropriate relief. In the event that such protective order is not\nobtained, Recipient shall disclose only that portion of the Confidential Information that its counsel advises that it is legally required to\ndisclose.\n6.\nReturn of Materials. Any materials or documents embodying Confidential Information which have been furnished to the Recipient will be\npromptly returned, accompanied by all copies of such documentation upon the earlier of the written request thereof by Discloser or the\ntermination or expiration of this NDA. Notwithstanding the return of Confidential Information, Recipient will continue to be bound by the\nobligations of confidentiality hereunder.\n7.\nNo License Granted. Nothing in this NDA is intended to grant Recipient any rights under any patent, copyright, trade secret or other\nintellectual property right, nor shall this NDA grant Recipient any rights in or to Discloser's Confidential Information except the limited\nright to review such Confidential Information solely for the purposes set forth in Section 1. All such rights shall remain exclusively owned\nby Discloser. Recipient shall not derive or attempt to derive source code, reverse engineer, disassemble or decompile any products, models,\nprototypes, software or other objects that embody the Confidential Information of the Discloser.\n8.\nNo Representations. Recipient hereby acknowledges that the Discloser makes no representation or warranty, express or implied, as to the\naccuracy or completeness of the Confidential Information or any component thereof, and that any information being provided by the\nDiscloser pursuant to this NDA is being provided "as is". The parties agree that any Strategic Discussions contemplated by this NDA may or\nmay not lead to business or other relationships between them and no party has any obligation to disclose any Confidential Information or\nconclude any such relationships or enter into any further agreements.\n9.\nTerm. This NDA shall continue in effect until the first anniversary of the Effective Date.\n10. Publicity.. Recipient agrees that neither Recipient nor its Affiliates or representatives shall disclose to any Person who is not authorized to\nreceive the Confidential Information either the fact that this NDA exists, that discussions or negotiations are taking place concerning\nStrategic Discussions or any of the terms, conditions or other facts with respect to any aspect of the Strategic Discussions, including\nthe\nstatus thereof or the Persons involved, except as required as a result of any legal process after compliance by Recipient with the provisions\nof Section 5.\nNONDISCLOSURE AGREEMENT\n11. Miscellaneous.\na. This NDA shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that this NDA or\nthe Confidential Information of the Discloser may not be assigned by Recipient without the prior written consent of the Discloser.\nFailure to enforce any provision of this NDA shall not constitute a waiver of any term hereof. A waiver given on any one occasion is\neffective only in that instance and will not be construed as a waiver of any right on any other occasion.\nb. If any provision of this NDA shal be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\nC.\nThis NDA sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or\ncontemporaneous agreements, proposals, understandings and representations, written or oral, between the parties with respect to the\nsubject matter hereof. All modifications of, waivers of and amendments to this NDA or any part hereof, must be in writing and signed\non behalf of each party. This NDA may be executed in counterparts, including facsimile, PDF or other electronic copies thereof, and\neach such counterpart shall be an original and altogether shall constitute but one and the same document.\n12. Governing Law and Jurisdiction. This NDA shall be governed by and construed and enforced in accordance with the internal law of the\nState of California, without regard to any choice-of-law provisions, and shall be binding upon the parties hereto in the United States and\nworldwide. The federal and state courts located in the State of California shall have exclusive jurisdiction to adjudicate any dispute arising\nout of this NDA.\n13.\nInjunctive Relief. Recipient agrees and acknowledges that any violation or threatened violation of this NDA will cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to obtain\ninjunctive relief against the threatened breach of this NDA or the continuation of any such breach, in any court of competent jurisdiction\n(notwithstanding the provisions of Section 12), without the necessity of proving actual damages or posting a bond.\nACCEPTED AND AGREED:\nW-NET, INC.\nDIGIPATH, INC.\nBy: /s/ David Weiner\nBy:\n/s/ Todd Denkin\n(Signature)\n(Signature)\nName: David Weiner\nName: Todd Denkin\nTitle: President\nTitle: CEO	EX-10 .3 4 ex10-3 .htm\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “NDA”) is made as of December 9th, 2014 (the “Effective Date”) by and between DigiPath,\nInc., located at 6450 Cameron Street, Suite 113, Las Vegas, Nevada 89118 (“Discloser”), and W-Net, Inc. (“Recipient”).\n1. Scope of NDA. This NDA governs all disclosures of Confidential Information by Discloser in the course of exploring one or more strategic\nbusiness transactions or relationships with Recipient (“Strategic Discussions”).\n2. Definitions. “Confidential Information” means any of Discloser ’s (or its Affiliates’) information, including, without limitation, science,\nformulas, patterns, compilations, programs, software, devices, designs, drawings, methods, techniques and processes, financial information\nand data, business plans, business strategies, marketing plans, customer lists, price lists, cost information, information about employees,\ndescriptions of inventions, process descriptions, descriptions of technical know-how, information and descriptions of new products and new\nproduct development, scientific and technical specifications and documentation, and pending or abandoned patent applications of a party,\nnow known or in possession of, or hereafter learned or acquired, that derives economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use.\nAll Confidential Information disclosed in tangible form must be marked as “confidential” or “proprietary” or with words of similar import,\nand all Confidential Information disclosed orally must be identified as confidential at the time of disclosure and summarized in writing\nwithin thirty (30) days of disclosure. “Affiliate”, with respect to any Person, means any other Person that, directly or indirectly, is controlled\nby, controls or is under common control with that Person, including, without limitation, any officer, director, manager, general partner,\ncontrolling stockholder or managing member of any Person. “Control”, with respect to any Person, means the power, directly or indirectly,\nto direct the management and policies of that Person. “Person” shall be broadly interpreted to include, without limitation, any individual,\ncorporation, company, association, partnership, joint venture, trust, estate, governmental agency or other entity of whatsoever kind or nature.\n3. Exceptions. Confidential Information does not include information which: (i) is in the possession of the Recipient at the time of disclosure\nas shown by the Recipient’s files and records immediately prior to the time of disclosure; (ii) prior or after the time of disclosure becomes\npart of the public knowledge or literature, not as a result of any inaction or action of the Recipient; (iii) is lawfully obtained from a third\nparty without any breach of a confidentiality obligation to the Discloser; (iv) is approved for release by the Discloser in writing; or (v) is\nshown by written record to be developed independently by the Recipient.\n4. Non-use and Nondisclosure. The Recipient agrees not to use the Confidential Information for any purpose except to conduct the Strategic\nDiscussions. Recipient will not disclose any Confidential Information to any third parties except those directors, officers, employees,\nconsultants and agents who have a need to know the Confidential Information in order to carry out the Strategic Discussions. Recipient shall\nensure that all such persons are bound by non-disclosure terms in content substantially similar to this NDA. Recipient will be responsible for\nbreaches of this NDA by any such person. Recipient agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information, which measures shall include the highest degree of care the Recipient utilizes to protect its\nown Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Recipient agrees to notify Discloser\nin writing of any misuse or misappropriation of such Confidential Information which may come to its attention.\n5. Mandatory Disclosure. In the event that Recipient or its respective directors, officers, employees, consultants or agents are requested or\nrequired by legal process to disclose any of Discloser’s Confidential Information, Recipient shall give prompt written notice (to the extent\nlegally permissible) so that Discloser may seek a protective order or other appropriate relief. In the event that such protective order is not\nobtained, Recipient shall disclose only that portion of the Confidential Information that its counsel advises that it is legally required to\ndisclose.\n6. Return of Materials. Any materials or documents embodying Confidential Information which have been furnished to the Recipient will be\npromptly returned, accompanied by all copies of such documentation upon the earlier of the written request thereof by Discloser or the\ntermination or expiration of this NDA. Notwithstanding the return of Confidential Information, Recipient will continue to be bound by the\nobligations of confidentiality hereunder.\n7. No License Granted. Nothing in this NDA is intended to grant Recipient any rights under any patent, copyright, trade secret or other\nintellectual property right, nor shall this NDA grant Recipient any rights in or to Discloser ’s Confidential Information except the limited\nright to review such Confidential Information solely for the purposes set forth in Section 1. All such rights shall remain exclusively owned\nby Discloser. Recipient shall not derive or attempt to derive source code, reverse engineer, disassemble or decompile any products, models,\nprototypes, software or other objects that embody the Confidential Information of the Discloser.\n8. No Representations. Recipient hereby acknowledges that the Discloser makes no representation or warranty, express or implied, as to the\naccuracy or completeness of the Confidential Information or any component thereof, and that any information being provided by the\nDiscloser pursuant to this NDA is being provided “as is”. The parties agree that any Strategic Discussions contemplated by this NDA may or\nmay not lead to business or other relationships between them and no party has any obligation to disclose any Confidential Information or\nconclude any such relationships or enter into any further agreements.\n9. Term. This NDA shall continue in effect until the first anniversary of the Effective Date.\n10. Publicity. Recipient agrees that neither Recipient nor its Affiliates or representatives shall disclose to any Person who is not authorized to\nreceive the Confidential Information either the fact that this NDA exists, that discussions or negotiations are taking place concerning\nStrategic Discussions or any of the terms, conditions or other facts with respect to any aspect of the Strategic Discussions, including the\nstatus thereof or the Persons involved, except as required as a result of any legal process after compliance by Recipient with the provisions\nof Section 5.\nNONDISCLOSURE AGREEMENT\n11. Miscellaneous.\na. This NDA shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that this NDA or\nthe Confidential Information of the Discloser may not be assigned by Recipient without the prior written consent of the Discloser.\nFailure to enforce any provision of this NDA shall not constitute a waiver of any term hereof. A waiver given on any one occasion is\neffective only in that instance and will not be construed as a waiver of any right on any other occasion.\nb. If any provision of this NDA shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\nc. This NDA sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or\ncontemporaneous agreements, proposals, understandings and representations, written or oral, between the parties with respect to the\nsubject matter hereof. All modifications of, waivers of and amendments to this NDA or any part hereof, must be in writing and signed\non behalf of each party. This NDA may be executed in counterparts, including facsimile, PDF or other electronic copies thereof, and\neach such counterpart shall be an original and altogether shall constitute but one and the same document.\n12. Governing Law and Jurisdiction. This NDA shall be governed by and construed and enforced in accordance with the internal law of the\nState of California, without regard to any choice-of-law provisions, and shall be binding upon the parties hereto in the United States and\nworldwide. The federal and state courts located in the State of California shall have exclusive jurisdiction to adjudicate any dispute arising\nout of this NDA.\n13. Injunctive Relief. Recipient agrees and acknowledges that any violation or threatened violation of this NDA will cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to obtain\ninjunctive relief against the threatened breach of this NDA or the continuation of any such breach, in any court of competent jurisdiction\n(notwithstanding the provisions of Section 12), without the necessity of proving actual damages or posting a bond.\nACCEPTED AND AGREED:\nW-NET, INC.\nDIGIPATH, INC.\nBy: /s/ David Weiner\nBy: /s/ Todd Denkin\n(Signature)\n(Signature)\nName: David Weiner\nName: Todd Denkin\nTitle: President\nTitle: CEO
247166e0245431dcf97ee884f1f07e35.pdf	effective_date jurisdiction party	CONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of April 20, 2018, by and between Elaine P. Wynn (the\n“Requesting Stockholder”) and Wynn Resorts, Limited, a Nevada corporation (the “Company”).\nWHEREAS, the Requesting Stockholder hereby represents that she is the beneficial owner of 9,539,077 shares of\ncommon stock of the Company, $0.01 par value per share;\nWHEREAS, by letter to the Company dated April 20, 2018, the Requesting Stockholder has made a demand (the\n“Demand”) to inspect and make and/or receive copies or abstracts from certain records of the Company (the “Records”)\npursuant to Nevada Revised Statutes 78.105; and\nWHEREAS, subject to the execution of this Agreement and payment by the Requesting Stockholder for the production of the\nRecords, the Company will make the Records available for inspection by the Requesting Stockholder in response to the Demand and\nany future demands by the Requesting Stockholder, subject to the provisions contained in this Agreement.\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nthe parties do hereby agree as follows:\n1. Confidentiality and Purpose. The Company shall make the Records available for inspection by the Requesting\nStockholder in response to the Demand and any future demands by the Requesting Stockholder. The Requesting Stockholder shall\nhold the Records (as defined in the Demand) in strict confidence and shall not, and shall direct her Representatives (as defined below)\nnot to, publish, communicate or otherwise disclose the Records to anyone, either directly or indirectly, other than as permitted by\nSection 3 of this Agreement. The Requesting Stockholder expressly agrees and represents, consistent with her Demand, that the\nRecords shall be utilized solely for the purpose set forth in the Demand (the “Permitted Purpose”).\nThe confidentiality obligations set forth in this Agreement shall not apply to any of the Records that (a) were already\nproperly in the Requesting Stockholder’s or her Representatives’ possession as of the date hereof, provided that such Records were\nnot subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any subsidiary thereof, (b)\nproperly came into the Requesting Stockholder’s or her Representatives’ possession after the date hereof, provided that such\nInformation was not subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any\nsubsidiary thereof, or (c) are, on the date hereof, or subsequently become, publicly available, other than as a result of a breach of this\nAgreement by the Requesting Stockholder or her Representatives.\n2. Confidentiality Designation. The Company hereby designates the Records as confidential on the grounds that the\nCompany in good faith believes that the Records constitute or reveals confidential information that requires the protection provided\nin this Agreement.\n-2 2-\n3. Permitted Disclosure. The Requesting Stockholder shall be permitted to disclose the Records only on a need-to-know\nbasis for the Permitted Purpose (a) to the employees, officers, attorneys, consultants, agents or other representatives of the Requesting\nStockholder or any of her affiliates or associates (collectively, “Representatives”) or (b) as required by law, regulation or legal\nprocess, including as required by the Securities and Exchange Commission or any applicable stock exchange; provided, however, that\nthe Requesting Stockholder shall, to the extent legally permissible, (i) provide reasonable notice to the Company of any such\nrequirement, so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with this\nAgreement; (ii) furnish only such Records as are legally required to be disclosed and (iii) exercise reasonable efforts to obtain\nassurance that confidential treatment will be accorded to any Records that are required to be disclosed. The Requesting Stockholder\nshall be responsible for any breach of this Agreement by her Representatives and agrees to advise her Representatives against\nprohibited or unauthorized disclosure or use of the Records (including litigation).\n4. Return or Destruction of Information. The parties agree that, within ten business days following the conclusion of the\nCompany’s 2018 annual meeting of stockholders (including any postponements and/or adjournments thereof), the Requesting\nStockholder shall, and shall direct her Representatives to, destroy the Records.\n5. Enforcement. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement\nby any of the parties hereto and that the other party shall be entitled to equitable relief, including injunctive relief and specific\nperformance, in the event of any breach or threatened breach of this Agreement, without proof of actual damages or any requirement\nto post a bond, in addition to all other remedies available at law or in equity. If any action, suit or proceeding is initiated by a party to\nenforce the provisions hereof, the prevailing party in such action, suit or proceeding shall be entitled to reimbursement of all costs\nand expenses, including attorneys’ fees, incurred by such prevailing party in connection therewith.\n6. Governing Law; Venue and Jurisdiction. This Agreement shall be governed by the laws of the State of Nevada without\nregard to principles of conflict of laws thereof. The parties agree that the Courts of the State of Nevada shall have exclusive\njurisdiction for purposes of any action, suit or proceeding arising hereunder, and the parties hereby consent to such venue and submit\nto such exclusive jurisdiction. Each of the Requesting Stockholder and the Company agrees that it will not bring any action, suit or\nproceeding relating to this Agreement in any court other than the Courts of the State of Nevada.\n7. General Provisions. Captions and section headings used herein are for convenience of reference only, are not part of this\nAgreement and shall not affect the construction of, or to be taken into consideration in, interpreting, this Agreement. This Agreement\nmay be amended, changed, modified, altered or terminated only by written instruments signed by the parties hereto, and no waiver of\ncompliance with any provision or condition of this Agreement shall be effective unless evidenced by a written instrument executed\nby the party against whom such waiver is to be effective. In the event any provision of this Agreement is held invalid or\nunenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision\nhereof. This Agreement may be executed in multiple counterparts, each of which will be deemed an original for all purposes and all\nof which shall constitute a single instrument. Delivery of an executed signature page of this Agreement by email, facsimile or other\ncustomary means of electronic transmission (e.g ., “pdf’) shall be effective as delivery of a manually executed counterpart hereof.\n[Remainder of page intentionally left blank]\n-23-\nIN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed on the date first written above.\nWYNN RESORTS, LIMITED\nBy:\nName:\nTitle:\nELAINE P. WYNN\nSigned:\n-24-	CONFIDENTIALITY AG REEMENT\nCONFIDENTIALITY AGREEMENT (this ”Agreement”), dated as of April 20, 2018, by and between Elaine P. Wynn (the\n”Requesting Stockholder") and Wynn Resorts, Limited, a Nevada corporation (the ”Company” ).\nWHEREAS, the Requesting Stockholder hereby represents that she is the beneficial owner of 9,539,077 shares of\ncommon stock of the Company, $0.01 par value per share;\nWHEREAS, by letter to the Company dated April 20, 2018, the Requesting Stockholder has made a demand (the\n“Demand”) to inspect and make and/or receive copies or abstracts from certain records of the Company (the “Records”)\npursuant to Nevada Revised Statutes 78.105; and\nWHE REA S, subject to the execution of this Agreement and payment by the Requesting Stockholder for the production of the\nRecords, the Company will make the Records available for inspection by the Requesting Stockholder in response to the Demand and\nany future demands by the Requesting Stockholder, subject to the provisions contained in this Agreement.\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nthe parties do hereby agree as follows:\n1. Confidentiality and Purpose. The Company shall make the Records available for inspection by the Requesting\nStockholder in response to the Demand and any future demands by the Requesting Stockholder. The Requesting Stockholder shall\nhold the Records (as defined in the Demand) in strict confidence and shall not, and shall direct her Representatives (as defined below)\nnot to, publish, communicate or otherwise disclose the Records to anyone, either directly or indirectly, other than as permitted by\nSection 3 of this Agreement. The Requesting Stockholder expressly agrees and represents, consistent with her Demand, that the\nRecords shall be utilized solely for the purpose set forth in the Demand (the ”P ermitted Purpose” ).\nThe confidentiality obligations set forth in this Agreement shall not apply to any of the Records that (a) were already\nproperly in the Requesting Stockholder“ s or her Representatives' possession as of the date hereof, provided that such Records were\nnot subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any subsidiary thereof, (b)\nproperly came into the Requesting Stockholder’s or her Representatives' possession after the date hereof, provided that such\nInformation was not subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any\nsubsidiary thereof, or (c) are, on the date hereof, or subsequently become, publicly available, other than as a result of a breach of this\nA greement by the Requesting Stockholder or her Representatives.\n2. Confidentiality Designation. The Company hereby designates the Records as confidential on the grounds that the\nCompany in good faith believes that the Records constitute or reveals confidential information that requires the protection provided\nin this A greement.\n-22-\n3. Permitted Disclosure. The Requesting Stockholder shall be permitted to disclose the Records only on a need-to-know\nbasis for the Permitted Purpose (a) to the employees, officers, attorneys, consultants, agents or other representatives of the Requesting\nStockholder or any of her affiliates or associates (collectively, ”Representatives") or (b) as required by law, regulation or legal\nprocess, including as required by the Securities and Exchange Commission or any applicable stock exchange; provided, however, that\nthe Requesting Stockholder shall, to the extent legally permissible, (i) provide reasonable notice to the Company of any such\nrequirement, so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with this\nAgreement; (ii) furnish only such Records as are legally required to be disclosed and (iii) exercise reasonable efforts to obtain\nassurance that confidential treatment will be accorded to any Records that are required to be disclosed. The Requesting Stockholder\nshall be responsible for any breach of this Agreement by her Representatives and agrees to advise her Representatives against\nprohibited or unauthorized disclosure or use of the Records (including litigation).\n4. Return or Destruction of Information. The parties agree that, within ten business days following the conclusion of the\nCompany's 2018 annual meeting of stockholders (including any postponements and/or adjoumments thereof), the Requesting\nStockholder shall, and shall direct her Representatives to, destroy the Records.\n5. Enforcement. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement\nby any of the parties hereto and that the other party shall be entitled to equitable relief, including injunctive relief and specific\nperformance, in the event of any breach or threatened breach of this Agreement, without proof of actual damages or any requirement\nto post a bond, in addition to all other remedies available at law or in equity. If any action, suit or proceeding is initiated by a party to\nenforce the provisions hereof, the prevailing party in such action, suit or proceeding shall be entitled to reimbursement of all costs\nand expenses, including attorneys’ fees, incurred by such prevailing party in connection therewith.\n6. Governing Law; Venue and urisdiction. This Agreement shall be governed by the laws of the State of Nevada without\nregard to principles of conflict of laws thereof. The parties agree that the Courts of the State of Nevada shall have exclusive\njurisdiction for purposes of any action, suit or proceeding arising hereunder, and the parties hereby consent to such venue and submit\nto such exclusive jurisdiction. Each of the Requesting Stockholder and the Company agrees that it will not bring any action, suit or\nproceeding relating to this A greement in any court other than the Courts of the State of Nevada.\n7. General Provisions. Captions and section headings used herein are for convenience of reference only, are not part of this\nAgreement and shall not affect the construction of, or to be taken into consideration in, interpreting, this Agreement. This Agreement\nmay be amended, changed, modified, altered or terminated only by written instruments signed by the parties hereto, and no waiver of\ncompliance with any provision or condition of this Agreement shall be effective unless evidenced by a written instrument executed\nby the party against whom such waiver is to be effective. In the event any provision of this Agreement is held invalid or\nunenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision\nhereof. This Agreement may be executed in multiple counterparts, each of which will be deemed an original for all purposes and all\nof which shall constitute a single instrument. Delivery of an executed signature page of this Agreement by email, facsimile or other\ncustomary means of electronic transmission (e.g., ”pdf’) shall be effective as delivery of a manually executed counterpart hereof.\n[Remainder of page intentionally left blank]\n-23-\nIN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed on the date firstwritten above.\nWYNN RESORTS, LIMITED\nBy:\nName:\nTitle:\nELAINE P. WYNN\nSigned:\n-24-	CONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this "Agreement"), dated as of April 20, 2018, by and between Elaine P. Wynn (the\n"Requesting Stockholder") and Wynn Resorts, Limited, a Nevada corporation (the "Company").\nWHEREAS, the Requesting Stockholder hereby represents that she is the beneficial owner of 9,539,077 shares of\ncommon stock of the Company, $0.01 par value per share;\nWHEREAS, by letter to the Company dated April 20, 2018, the Requesting Stockholder has made a demand (the\n"Demand") to inspect and make and/or receive copies or abstracts from certain records of the Company (the "Records")\npursuant to Nevada Revised Statutes 78.105; and\nWHEREAS, subject to the execution of this Agreement and payment by the Requesting Stockholder for the production of the\nRecords, the Company will make the Records available for inspection by the Requesting Stockholder in response to the Demand and\nany future demands by the Requesting Stockholder, subject to the provisions contained in this Agreement.\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nthe parties do hereby agree as follows:\n1. Confidentiality and Purpose. The Company shall make the Records available for inspection by the Requesting\nStockholder in response to the Demand and any future demands by the Requesting Stockholder. The Requesting Stockholder shall\nhold the Records (as defined in the Demand) in strict confidence and shall not, and shall direct her Representatives (as defined below)\nnot to, publish, communicate or otherwise disclose the Records to anyone, either directly or indirectly, other than as permitted\nby\nSection 3 of this Agreement The Requesting Stockholder expressly agrees and represents, consistent with her Demand, that the\nRecords shall be utilized solely for the purpose set forth in the Demand (the "Permitted Purpose").\nThe confidentiality obligations set forth in this Agreement shall not apply to any of the Records that (a) were already\nproperly in the Requesting Stockholder's or her Representatives' possession as of the date hereof, provided that such Records were\nnot subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any subsidiary thereof, (b)\nproperly came into the Requesting Stockholder's or her Representatives' possession after the date hereof, provided that such\nInformation was not subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any\nsubsidiary thereof, or (c) are, on the date hereof, or subsequently become, publicly available, other than as a result of a breach of this\nAgreement by the Requesting Stockholder or her Representatives.\n2. Confidentiality Designation The Company hereby designates the Records as confidential on the grounds that the\nCompany in good faith believes that the Records constitute or reveals confidential information that requires the protection provided\nin this Agreement.\n-22-\n3. Permitted Disclosure. The Requesting Stockholder shall be permitted to disclose the Records only on a need-to-know\nbasis for the Permitted Purpose (a) to the employees, officers, attorneys, consultants, agents or other representatives of the Requesting\nStockholder or any of her affiliates or associates (collectively, "Representatives") or (b) as required by law, regulation or legal\nprocess, including as required by the Securities and Exchange Commission or any applicable stock exchange; provided, however, that\nthe Requesting Stockholder shall, to the extent legally permissible, (i) provide reasonable notice to the Company of any such\nrequirement, so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with this\ngreement; (ii) furnish only such Records as are legally required to be disclosed and (iii) exercise reasonable efforts to obtain\nassurance that confidential treatment will be accorded to any Records that are required to be disclosed. The Requesting Stockholder\nshall be responsible for any breach of this Agreement by her Representatives and agrees to advise her Representatives against\nprohibited or unauthorized disclosure or use of the Records (including litigation).\n4. Return or Destruction of Information. The parties agree that, within ten business days following the conclusion of the\nCompany's 2018 annual meeting of stockholders (including any postponements and/or adjournments thereof), the Requesting\nStockholder shall, and shall direct her Representatives to, destroy the Records.\n5. Enforcement The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement\nby any of the parties hereto and that the other party shall be entitled to equitable relief, including injunctive relief and specific\nperformance in the event of any breach or threatened breach of this Agreement, without proof of actual damages or any requirement\nto post a bond, in addition to all other remedies available at law or in equity. If any action, suit or proceeding is initiated by a party to\nenforce the provisions hereof, the prevailing party in such action, suit or proceeding shall be entitled to reimbursement of all costs\nand expenses, including attorneys' fees, incurred by such prevailing party in connection therewith.\n6. Governing Law; Venue and Jurisdiction This Agreement shall be governed by the laws of the State of Nevada without\nregard to principles of conflict of laws thereof. The parties agree that the Courts of the State of Nevada shall have exclusive\njurisdiction for purposes of any action, suit or proceeding arising hereunder, and the parties hereby consent to such venue and submit\nto such exclusive jurisdiction. Each of the Requesting Stockholder and the Company agrees that it will not bring any action, suit or\nproceeding relating to this A greement in any court other than the Courts of the State of Nevada.\n7. General Provisions. Captions and section headings used herein are for convenience of reference only, are not part of this\nAgreement and shall not affect the construction of, or to be taken into consideration in, interpreting, this Agreement. This A greement\nmay be amended, changed, modified, altered or terminated only by written instruments signed by the parties hereto, and no waiver of\ncompliance with any provision or condition of this Agreement shall be effective unless evidenced by a written instrument executed\nby the party against whom such waiver is to be effective. In the event any provision of this Agreement is held invalid or\nunenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision\nhereof. This greement may be executed in multiple counterparts, each of which will be deemed an original for all purposes and all\nof which shall constitute a single instrument. Delivery of an executed signature page of this Agreement by email, facsimile or other\ncustomary means of electronic transmission (e.g., "pdf') shall be effective as delivery of a manually executed counterpart hereof.\n[Remainder of page intentionally left blank]\n-23-\nIN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed on the date first written above.\nWYNN RESORTS, LIMITED\nBy:\nName:\nTitle:\nELAINE P. WYNN\nSigned:\n-24-	CONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of April 20, 2018, by and between Elaine P. Wynn (the\n“Requesting Stockholder”) and Wynn Resorts, Limited, a Nevada corporation (the “Company”).\nWHEREAS, the Requesting Stockholder hereby represents that she is the beneficial owner of 9,539,077 shares of\ncommon stock of the Company, $0.01 par value per share;\nWHEREAS, by letter to the Company dated April 20, 2018, the Requesting Stockholder has made a demand (the\n“Demand”) to inspect and make and/or receive copies or abstracts from certain records of the Company (the “Records”)\npursuant to Nevada Revised Statutes 78.105; and\nWHEREAS, subject to the execution of this Agreement and payment by the Requesting Stockholder for the production of the\nRecords, the Company will make the Records available for inspection by the Requesting Stockholder in response to the Demand and\nany future demands by the Requesting Stockholder, subject to the provisions contained in this Agreement.\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nthe parties do hereby agree as follows:\n1. Confidentiality and Purpose. The Company shall make the Records available for inspection by the Requesting\nStockholder in response to the Demand and any future demands by the Requesting Stockholder. The Requesting Stockholder shall\nhold the Records (as defined in the Demand) in strict confidence and shall not, and shall direct her Representatives (as defined below)\nnot to, publish, communicate or otherwise disclose the Records to anyone, either directly or indirectly, other than as permitted by\nSection 3 of this Agreement. The Requesting Stockholder expressly agrees and represents, consistent with her Demand, that the\nRecords shall be utilized solely for the purpose set forth in the Demand (the “Permitted Purpose”).\nThe confidentiality obligations set forth in this Agreement shall not apply to any of the Records that (a) were already\nproperly in the Requesting Stockholder’s or her Representatives’ possession as of the date hereof, provided that such Records were\nnot subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any subsidiary thereof, (b)\nproperly came into the Requesting Stockholder’s or her Representatives’ possession after the date hereof, provided that such\nInformation was not subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any\nsubsidiary thereof, or (c) are, on the date hereof, or subsequently become, publicly available, other than as a result of a breach of this\nAgreement by the Requesting Stockholder or her Representatives.\n2. Confidentiality Designation. The Company hereby designates the Records as confidential on the grounds that the\nCompany in good faith believes that the Records constitute or reveals confidential information that requires the protection provided\nin this Agreement.\n-2 2-\n3. Permitted Disclosure. The Requesting Stockholder shall be permitted to disclose the Records only on a need-to-know\nbasis for the Permitted Purpose (a) to the employees, officers, attorneys, consultants, agents or other representatives of the Requesting\nStockholder or any of her affiliates or associates (collectively, “Representatives”) or (b) as required by law, regulation or legal\nprocess, including as required by the Securities and Exchange Commission or any applicable stock exchange; provided, however, that\nthe Requesting Stockholder shall, to the extent legally permissible, (i) provide reasonable notice to the Company of any such\nrequirement, so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with this\nAgreement; (ii) furnish only such Records as are legally required to be disclosed and (iii) exercise reasonable efforts to obtain\nassurance that confidential treatment will be accorded to any Records that are required to be disclosed. The Requesting Stockholder\nshall be responsible for any breach of this Agreement by her Representatives and agrees to advise her Representatives against\nprohibited or unauthorized disclosure or use of the Records (including litigation).\n4. Return or Destruction of Information. The parties agree that, within ten business days following the conclusion of the\nCompany’s 2018 annual meeting of stockholders (including any postponements and/or adjournments thereof), the Requesting\nStockholder shall, and shall direct her Representatives to, destroy the Records.\n5. Enforcement. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement\nby any of the parties hereto and that the other party shall be entitled to equitable relief, including injunctive relief and specific\nperformance, in the event of any breach or threatened breach of this Agreement, without proof of actual damages or any requirement\nto post a bond, in addition to all other remedies available at law or in equity. If any action, suit or proceeding is initiated by a party to\nenforce the provisions hereof, the prevailing party in such action, suit or proceeding shall be entitled to reimbursement of all costs\nand expenses, including attorneys’ fees, incurred by such prevailing party in connection therewith.\n6. Governing Law; Venue and Jurisdiction. This Agreement shall be governed by the laws of the State of Nevada without\nregard to principles of conflict of laws thereof. The parties agree that the Courts of the State of Nevada shall have exclusive\njurisdiction for purposes of any action, suit or proceeding arising hereunder, and the parties hereby consent to such venue and submit\nto such exclusive jurisdiction. Each of the Requesting Stockholder and the Company agrees that it will not bring any action, suit or\nproceeding relating to this Agreement in any court other than the Courts of the State of Nevada.\n7. General Provisions. Captions and section headings used herein are for convenience of reference only, are not part of this\nAgreement and shall not affect the construction of, or to be taken into consideration in, interpreting, this Agreement. This Agreement\nmay be amended, changed, modified, altered or terminated only by written instruments signed by the parties hereto, and no waiver of\ncompliance with any provision or condition of this Agreement shall be effective unless evidenced by a written instrument executed\nby the party against whom such waiver is to be effective. In the event any provision of this Agreement is held invalid or\nunenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision\nhereof. This Agreement may be executed in multiple counterparts, each of which will be deemed an original for all purposes and all\nof which shall constitute a single instrument. Delivery of an executed signature page of this Agreement by email, facsimile or other\ncustomary means of electronic transmission (e.g ., “pdf’) shall be effective as delivery of a manually executed counterpart hereof.\n[Remainder of page intentionally left blank]\n-23-\nIN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed on the date first written above.\nWYNN RESORTS, LIMITED\nBy:\nName:\nTitle:\nELAINE P. WYNN\nSigned:\n-24-
262cbec0e0e10baf6ebff39ee57e457c.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 11 d210854dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nEXECUTION VERSION\nJune 23, 2015\nCONFIDENTIAL\nYou have advised the Company’s agent, Raymond James & Associates, Inc. (acting solely in its capacity as representative of the Company,\n“Raymond James”), that Providence Equity Partners L.L.C . (referred to as “you” or “your” as appropriate) is interested in exploring a possible\nnegotiated transaction with a company known to each of us under the code name “Winchester” (the “Company”) (such possible transaction, the\n“Transaction”). In that connection, you have requested certain non-public oral and written information concerning the Company from officers,\ndirectors, employees or agents of the Company and Raymond James, the Company’s financial advisor on this matter. All such information\nfurnished to you and your Representatives (as defined below) either on or after the date of this agreement, together with those portions of all\nnotes, analyses, opinions, compilations, studies, interpretations, summaries, extracts or other documents or records prepared by you or your\nRepresentatives which contain or otherwise reflect from such information, are collectively referred to herein as the “Evaluation Material.”\nYou hereby agree as follows:\n1. You and your directors and officers (or their corporate equivalents), employees, affiliates (such term as used in this agreement in relation to\nyou shall only mean those of your affiliates that have received Evaluation Material), agents, financial and other advisors (including, for the\navoidance of doubt, counsel and accountants of the same), counsel, accountants, Permitted Financing Sources (as defined below)\n(including, for the avoidance of doubt, any representatives of the same) (collectively, the “Representatives”) shall use the Evaluation\nMaterial solely for the purpose of evaluating, negotiating and implementing the Transaction and shall keep the Evaluation Material\nconfidential, except that you and your Representatives may disclose the Evaluation Material or portions thereof to those of your\nRepresentatives who need to know such information for the purpose of evaluating, negotiating and implementing the Transaction. You shall\ninform your Representatives of the existence and terms of this agreement and direct them to comply with all obligations in this agreement\nthat apply to your Representatives or with which this agreement states you shall direct your representatives to comply. You shall be\nresponsible for any breach of the provisions of this agreement expressly applicable to your Representatives by your Representatives;\nprovided, that you shall not be responsible for a breach by any Representative that has executed a separate confidentiality agreement with\nthe Company. If you or any of your Representatives is required (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Evaluation Material or any Transaction Information, you or your\nRepresentative, as the case may be, shall (other than in the case of a routine inquiry by a regulatory authority, self-regulatory authority,\nstock exchange or bank examiner not directly targeting the Company or the Transaction) provide the Company with written notice of such\nrequirement as soon as practicable after learning of it and shall furnish only that portion of the Evaluation Material or Transaction\nInformation which you or your Representatives, as the case may be, is advised by counsel is legally required. You shall cooperate (at the\nexpense of the Company) in efforts to obtain a protective order and otherwise exercise commercially reasonable efforts to assure\nconfidential treatment will be accorded such Evaluation Material. As used herein, “Permitted Financing Sources” means any of your\npotential sources of debt or equity financing as shall have been approved in\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 2\nwriting by the Company prior to any Evaluation Material or Transaction Information having been provided to such source or any of its\nRepresentatives. For the avoidance of doubt, your Representatives shall not include any debt or equity financing sources other than\nPermitted Financing Sources.\n2. If the Company or Raymond James so requests in writing, you shall as promptly as practicable return to the Company or destroy (at your\nsole election) all copies of the Evaluation Material furnished to you by or on behalf of the Company in your possession or, in the case of the\npossession of your Representatives, direct your Representatives to do the same. All other written Evaluation Material will be destroyed by\nyou and all oral Evaluation Material will be held subject to the terms of this agreement. You agree to confirm in writing, if so requested by\nthe Company, your compliance with the provisions of this paragraph once you have been requested to return or destroy all Evaluation\nMaterial. Notwithstanding the foregoing, (a) entities may retain copies of the Evaluation Material in accordance with bona fide policies and\nprocedures implemented to comply with applicable law, regulator, professional standards or business practice and (b) compliance with this\nSection 2 will not limit the ongoing confidentiality and other applicable obligations under this agreement.\n3. The term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally available to\nthe participants in the industry in which the Company primarily participates or to the public (in each case, other than as a result of a\ndisclosure directly by you or any of the Representatives), (ii) was available to you or your Representatives without a duty of confidentiality\ndirectly or indirectly to the Company (A) prior to disclosure by the Company or (B) from a source that, to your knowledge, is not\nprohibited from disclosing such information to you by a contractual, legal or fiduciary obligation directly or indirectly to the Company or\n(iv) was or is independently developed by you or your Representatives without use of the Evaluation Material. The Evaluation Material\nshall remain the property of the Company to the extent it is the property of the Company prior to its disclosure hereunder and its disclosure\nshall not confer on you or any of your Representatives any rights (including intellectual property rights) over the Evaluation Material\nwhatsoever beyond those contained in this agreement.\n4. Without the prior written consent of the Board of Directors of the Company, you shall not, and shall direct your Representatives not to, and\nto the extent the Company makes a disclosure referencing you or your affiliates, it and its Representatives shall not, disclose to any person\nor entity (a) that any investigations, discussions or negotiations are taking place concerning a possible transaction involving the Company\nand you, (b) that you have requested or received any Evaluation Material or (c) or any of the terms, conditions or other facts with respect to\nthe Transaction, including the status thereof (collectively, the “Transaction Information”). You represent that in considering the Transaction\nand reviewing the Evaluation Material, you and your Representatives are acting solely on your own behalf and not as part of a group with\nany third parties. You will not, directly or indirectly, except with the prior written consent of the Company, enter into any oral or written\nagreement, arrangement or understanding with any other person, or approach or have discussions with any person that may lead to the same\nwith any person regarding the possibility of joining in a combined proposal for a Transaction or a follow-on acquisition of part of the\nCompany or its\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 3\nassets, and you represent and warrant that neither you nor any of your Representatives has entered into any such agreement, arrangement,\nunderstanding or discussions prior to the date hereof. Furthermore, you will not, directly or through others, enter into any oral or written\nagreement, arrangement or understanding (or discussions that could reasonably be expected to lead to such an agreement, arrangement or\nunderstanding) regarding the engagement of a debt or equity financing source on an exclusive basis or in such a manner that would\notherwise prohibit or impede any other person from obtaining debt financing from such financing source in connection with a transaction\nwith the Company; provided, however, that a customary non-disclosure or confidentiality agreement that does not contain an exclusivity,\n“lock-up”, “dry-up” or similar provision shall not be deemed to so limit, restrict, restrain or impair such financing source.\nNotwithstanding any other provision of this agreement, nothing shall prohibit or restrict you from entering into a customary “tree”\narrangement with a financial institution at which a deal team is working on obtaining or providing potential financing for you for purposes\nof the Transaction (and is not permitted to work on obtaining or providing potential financing for any other bidder pursuing a transaction\ninvolving the Company so long as other deal teams at such institution are permitted to work on obtaining or providing potential financing\nfor other bidders pursuing a transaction involving the Company.\n5. Until the consummation of the Transaction by you or a third party, you shall not initiate or maintain contact (except for those contacts made\nin the ordinary course of business) with any officer, director, or employee of the Company or its subsidiaries, except with the express prior\npermission of the Chief Executive Officer of the Company or Raymond James. For a period of 18 months from the date hereof, you shall\nnot, and shall not permit any of your affiliates to, directly or indirectly, solicit for employment, or hire, any person who is an employee of\nthe Company or any of its subsidiaries with whom you or any of your Representatives have had contact or have been specifically identified\nto you (other than solely on an employee census) during the period of your investigation of the Company or its subsidiaries; provided that\nnothing herein shall restrict or preclude (a) your right to make generalized searches for employees by use of advertisements in any medium\nor to engage firms to conduct such searches, and from hiring employees as a result of such search, so long as such firms do not target or\nfocus on the Company or any of its subsidiaries or (b) the solicitation for hire or hiring of any such person whose employment was\nterminated by the Company at least 90 days prior to such solicitation. It is understood that, unless otherwise agreed to or directed by the\nCompany, all requests for information, tours and meetings, all questions or discussions relating to the procedures in making a proposal and\nall communications regarding the Transaction will be directed to Raymond James. The Company and Raymond James shall be free to\nconduct the process for exploring a potential Transaction, including access to Evaluation Material, as they in their sole discretion shall\ndetermine and to discontinue or change such process (including any previously announced rules or procedure), including as relates to\naccess to Evaluation Material, at any time, for any reason and without notice to you, and none of the Company, Raymond James, or any of\ntheir respective officers, directors, employees, agents or affiliates, shall have any liability to you as a result of such process. You further\nunderstand and agree that the Company and its Representatives shall not be limited at any time or in any way from entering into\nnegotiations and discussions with another party for a possible transaction in lieu of the Transaction or from entering into a definitive\nagreement with respect thereto without prior notice to you or your Representatives.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 4\n6. You agree that, for a period of 18 months from the date of this agreement, unless such shall have been specifically invited or approved in\nwriting by the Board of Directors of the Company, neither you nor any of your affiliates or Representatives will in any manner, directly or\nindirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) an acquisition of any securities\n(or of beneficial ownership thereof) or a material amount of the assets of the Company; (ii) any tender or exchange offer, merger or other\nbusiness combination involving the Company or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Company; or (iv) any “solicitation” of “proxies” (as such terms are used in the rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a “group” (as defined under the 1934 Act) with respect to any of the types of matters set forth in (a) above or (e) below;\n(c) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in\n(a) above or (e) below; (d) publicly request any amendment or waiver of any provision of this agreement; (e) otherwise act, alone or in\nconcert with others, to seek to control the management, Board of Directors or policies of the Company; or (f) enter into any discussions or\narrangements with any third party (other than your Representatives) with respect to any of the foregoing.\n7. You understand and acknowledge that none of the Company, Raymond James, their respective affiliates or and the respective\nRepresentatives of the foregoing is making any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and each of the Company, Raymond James, their affiliates and the respective Representatives of the foregoing shall\nhave no liability to you, any of your affiliates, any of your or your affiliates’ Representatives or any other person that may be based upon or\nrelate to (a) the use of the Evaluation Material by you, your affiliates, or any of the respective Representatives of the foregoing or (b) any\nerrors therein or omissions therefrom. Only those particular representations and warranties, if any, that are made in a detailed, executed,\nwritten definitive agreement in customary form with respect to the Transaction (the “Definitive Agreement”) when, as, and if it is executed,\nand subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. Except for the\nobligations expressly set forth in this agreement or as may be set forth in a Definitive Agreement, neither you nor the Company nor any of\nthe respective Representatives of you and the Company shall have any obligation of any kind relating to or in connection with the\nTransaction or any similar transaction. For purposes of this paragraph, the term “Definitive Agreement” does not include an executed letter\nof intent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part. You\nunderstand and agree that you are aware, and your Representatives are aware, that, under certain circumstances, the federal and state\nsecurities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities of such\na company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 5\n8. You hereby represent that, as of the date of this agreement, neither you nor any of your affiliates nor anyone acting on your behalf, has\nacquired record or beneficial ownership of any voting securities of the Company or of any securities convertible into or exchangeable for\nvoting securities of the Company.\n9. This agreement and all controversies arising from or relating to performance under this letter agreement shall be governed by and construed\nin accordance with the laws of the State of New York. Upon any breach or threatened breach of the provisions of this agreement, both\nparties shall be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other\nremedies available to the non-breaching party at law or in equity. You hereby irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the state and federal courts located in the Borough of Manhattan in the State of New York for any actions, suits or\nproceedings arising out of or relating to this agreement and the transactions contemplated hereby, and further agree that service of any\nprocess, summons, notice or document by U.S . registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court. You hereby irrevocably and unconditionally waive any objection to the\nlaying of venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the state and\nfederal courts located in the Borough of Manhattan in the State of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an\ninconvenient forum.\n10. It is understood by the parties hereto that after you sign this agreement, the Company shall provide you with the actual name of the\nCompany. If you inform the Company within two (2) business days after learning the actual name of the Company (the “Waiting Period”)\nthat you will not pursue the Transaction, this agreement shall be terminated immediately, subject to paragraph 14 of this agreement, except\nwith regard to the eighteen (18) month term set forth in paragraph 14(c). The Company shall only provide you with further Evaluation\nMaterial after the earlier to occur of: (a) the termination of the Waiting Period and (b) notification from you that you will pursue the\nTransaction.\n11. Subject to your observance of the confidentiality obligations set forth herein, nothing in this agreement shall prevent you from evaluating a\npossible investment in and/or collaborating with, or entering into any transaction with (including an investment in), or monitoring,\nmanaging, maintaining or otherwise acting with respect to an investment in, a company whose business is similar to or competitive with the\nbusiness of the Company. The Company acknowledges that you deal with many companies, some of which may, independently of the\nCompany, pursue similar or competitive paths regarding their products or services, technology and/or market development plans to those\nwhich are or may be pursued by the Company. Although you are subject to the confidentiality obligations set forth in this agreement, the\noccurrence or existence of such similar or competitive activities shall not by itself be cause for any action or allegation by the Company\nthat you have failed to observe any of the confidentiality obligations set forth above.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 6\n12. No past, present or future director, officer, employee, member, shareholder, incorporator, partner, and/or affiliate of yours or any affiliate\nthereof except to the extent any of the foregoing is a party to and bound by the terms of this agreement shall have any liability for your\nobligations under this agreement or for any claim based on, in respect of or by reason of such obligations or their creation.\n13. For the avoidance of doubt, in the event there is any conflict, inconsistency or additional obligation between this agreement and the terms\nand conditions of any electronic dataroom now or hereafter applicable to you or your Representatives, the terms and conditions of this\nagreement shall govern and constitute the terms and conditions with respect to the access of Evaluation Material by you or your\nRepresentatives in any electronic dataroom.\n14. (a) No failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. This agreement can only be modified or waived in writing.\n(b) The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this agreement, which shall remain in full force and effect. This agreement contains the entire agreement between the\nCompany and you concerning the subject matter hereof and supersedes all previous agreements, written or oral, relating to the subject\nmatter hereof.\n(c) This agreement and all obligations hereunder shall expire and be of no further force and effect upon 18 months from the date hereof;\nprovided, however, that Sections 7, 9 and 14 shall survive the termination of this letter agreement.\n(d) This agreement shall be binding solely upon, inure to the benefit of, and be enforceable by, each party and its respective successors and\nassigns.\n(e) This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. This agreement or any counterpart may be executed and delivered by facsimile copies, each\nof which shall be deemed to be an original.\n[Signature page follows]\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 7\nIf you agree with the foregoing, please sign both copies of this agreement and return one to me, which shall thereupon constitute our agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nBy /s/ Marc Sheinbaum\nName: Marc Sheinbaum\nTitle: CEO\nHigher One Holdings, Inc.\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nProvidence Equity Partners L.L.C.\nBy:\n/s/ William S. Hughes\nName: William S. Hughes\nTitle:\nPrincipal	EX-99.(D)(3) 11 d210854dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nEXECUTION VERSION\nJune 23, 2015\nCONFIDENTIAL\nYou have advised the Company’s agent, Raymond James & Associates, Inc. (acting solely in its capacity as representative of the Company,\n“Raymond James™), that Providence Equity Partners L.L.C. (referred to as “you” or “your” as appropriate) is interested in exploring a possible\nnegotiated transaction with a company known to each of us under the code name “Winchester” (the “Company”) (such possible transaction, the\n“Transaction”). In that connection, you have requested certain non-public oral and written information concerning the Company from officers,\ndirectors, employees or agents of the Company and Raymond James, the Company’s financial advisor on this matter. All such information\nfurnished to you and your Representatives (as defined below) either on or after the date of this agreement, together with those portions of all\nnotes, analyses, opinions, compilations, studies, interpretations, summaries, extracts or other documents or records prepared by you or your\nRepresentatives which contain or otherwise reflect from such information, are collectively referred to herein as the “Evaluation Material.”\nYou hereby agree as follows:\n1. You and your directors and officers (or their corporate equivalents), employees, affiliates (such term as used in this agreement in relation to\nyou shall only mean those of your affiliates that have received Evaluation Material), agents, financial and other advisors (including, for the\navoidance of doubt, counsel and accountants of the same), counsel, accountants, Permitted Financing Sources (as defined below)\n(including, for the avoidance of doubt, any representatives of the same) (collectively, the “Representatives”) shall use the Evaluation\nMaterial solely for the purpose of evaluating, negotiating and implementing the Transaction and shall keep the Evaluation Material\nconfidential, except that you and your Representatives may disclose the Evaluation Material or portions thereof to those of your\nRepresentatives who need to know such information for the purpose of evaluating, negotiating and implementing the Transaction. You shall\ninform your Representatives of the existence and terms of this agreement and direct them to comply with all obligations in this agreement\nthat apply to your Representatives or with which this agreement states you shall direct your representatives to comply. You shall be\nresponsible for any breach of the provisions of this agreement expressly applicable to your Representatives by your Representatives;\nprovided, that you shall not be responsible for a breach by any Representative that has executed a separate confidentiality agreement with\nthe Company. If you or any of your Representatives is required (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Evaluation Material or any Transaction Information, you or your\nRepresentative, as the case may be, shall (other than in the case of a routine inquiry by a regulatory authority, self-regulatory authority,\nstock exchange or bank examiner not directly targeting the Company or the Transaction) provide the Company with written notice of such\nrequirement as soon as practicable after learning of it and shall furnish only that portion of the Evaluation Material or Transaction\nInformation which you or your Representatives, as the case may be, is advised by counsel is legally required. You shall cooperate (at the\nexpense of the Company) in efforts to obtain a protective order and otherwise exercise commercially reasonable efforts to assure\nconfidential treatment will be accorded such Evaluation Material. As used herein, “Permitted Financing Sources” means any of your\npotential sources of debt or equity financing as shall have been approved in\nCONFIDENTIAL\nProvidence Equity June 23, 2015\nNon-Disclosure Agreement Page 2\nwriting by the Company prior to any Evaluation Material or Transaction Information having been provided to such source or any of its\nRepresentatives. For the avoidance of doubt, your Representatives shall not include any debt or equity financing sources other than\nPermitted Financing Sources.\n2. If the Company or Raymond James so requests in writing, you shall as promptly as practicable return to the Company or destroy (at your\nsole election) all copies of the Evaluation Material furnished to you by or on behalf of the Company in your possession or, in the case of the\npossession of your Representatives, direct your Representatives to do the same. All other written Evaluation Material will be destroyed by\nyou and all oral Evaluation Material will be held subject to the terms of this agreement. You agree to confirm in writing, if so requested by\nthe Company, your compliance with the provisions of this paragraph once you have been requested to return or destroy all Evaluation\nMaterial. Notwithstanding the foregoing, (a) entities may retain copies of the Evaluation Material in accordance with bona fide policies and\nprocedures implemented to comply with applicable law, regulator, professional standards or business practice and (b) compliance with this\nSection 2 will not limit the ongoing confidentiality and other applicable obligations under this agreement.\n3. The term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally available to\nthe participants in the industry in which the Company primarily participates or to the public (in each case, other than as a result of a\ndisclosure directly by you or any of the Representatives), (ii) was available to you or your Representatives without a duty of confidentiality\ndirectly or indirectly to the Company (A) prior to disclosure by the Company or (B) from a source that, to your knowledge, is not\nprohibited from disclosing such information to you by a contractual, legal or fiduciary obligation directly or indirectly to the Company or\n(iv) was or is independently developed by you or your Representatives without use of the Evaluation Material. The Evaluation Material\nshall remain the property of the Company to the extent it is the property of the Company prior to its disclosure hereunder and its disclosure\nshall not confer on you or any of your Representatives any rights (including intellectual property rights) over the Evaluation Material\nwhatsoever beyond those contained in this agreement.\n4. Without the prior written consent of the Board of Directors of the Company, you shall not, and shall direct your Representatives not to, and\nto the extent the Company makes a disclosure referencing you or your affiliates, it and its Representatives shall not, disclose to any person\nor entity (a) that any investigations, discussions or negotiations are taking place concerning a possible transaction involving the Company\nand you, (b) that you have requested or received any Evaluation Material or (c) or any of the terms, conditions or other facts with respect to\nthe Transaction, including the status thereof (collectively, the “Transaction Information”). You represent that in considering the Transaction\nand reviewing the Evaluation Material, you and your Representatives are acting solely on your own behalf and not as part of a group with\nany third parties. You will not, directly or indirectly, except with the prior written consent of the Company, enter into any oral or written\nagreement, arrangement or understanding with any other person, or approach or have discussions with any person that may lead to the same\nwith any person regarding the possibility of joining in a combined proposal for a Transaction or a follow-on acquisition of part of the\nCompany or its\nCONFIDENTIAL\nProvidence Equity June 23, 2015\nNon-Disclosure Agreement Page 3\nassets, and you represent and warrant that neither you nor any of your Representatives has entered into any such agreement, arrangement,\nunderstanding or discussions prior to the date hereof. Furthermore, you will not, directly or through others, enter into any oral or written\nagreement, arrangement or understanding (or discussions that could reasonably be expected to lead to such an agreement, arrangement or\nunderstanding) regarding the engagement of a debt or equity financing source on an exclusive basis or in such a manner that would\notherwise prohibit or impede any other person from obtaining debt financing from such financing source in connection with a transaction\nwith the Company; provided, however, that a customary non-disclosure or confidentiality agreement that does not contain an exclusivity,\n“lock-up”, “dry-up” or similar provision shall not be deemed to so limit, restrict, restrain or impair such financing source.\n>\nNotwithstanding any other provision of this agreement, nothing shall prohibit or restrict you from entering into a customary “tree”\narrangement with a financial institution at which a deal team is working on obtaining or providing potential financing for you for purposes\nof the Transaction (and is not permitted to work on obtaining or providing potential financing for any other bidder pursuing a transaction\ninvolving the Company so long as other deal teams at such institution are permitted to work on obtaining or providing potential financing\nfor other bidders pursuing a transaction involving the Company.\n5. Until the consummation of the Transaction by you or a third party, you shall not initiate or maintain contact (except for those contacts made\nin the ordinary course of business) with any officer, director, or employee of the Company or its subsidiaries, except with the express prior\npermission of the Chief Executive Officer of the Company or Raymond James. For a period of 18 months from the date hereof, you shall\nnot, and shall not permit any of your affiliates to, directly or indirectly, solicit for employment, or hire, any person who is an employee of\nthe Company or any of its subsidiaries with whom you or any of your Representatives have had contact or have been specifically identified\nto you (other than solely on an employee census) during the period of your investigation of the Company or its subsidiaries; provided that\nnothing herein shall restrict or preclude (a) your right to make generalized searches for employees by use of advertisements in any medium\nor to engage firms to conduct such searches, and from hiring employees as a result of such search, so long as such firms do not target or\nfocus on the Company or any of its subsidiaries or (b) the solicitation for hire or hiring of any such person whose employment was\nterminated by the Company at least 90 days prior to such solicitation. It is understood that, unless otherwise agreed to or directed by the\nCompany, all requests for information, tours and meetings, all questions or discussions relating to the procedures in making a proposal and\nall communications regarding the Transaction will be directed to Raymond James. The Company and Raymond James shall be free to\nconduct the process for exploring a potential Transaction, including access to Evaluation Material, as they in their sole discretion shall\ndetermine and to discontinue or change such process (including any previously announced rules or procedure), including as relates to\naccess to Evaluation Material, at any time, for any reason and without notice to you, and none of the Company, Raymond James, or any of\ntheir respective officers, directors, employees, agents or affiliates, shall have any liability to you as a result of such process. You further\nunderstand and agree that the Company and its Representatives shall not be limited at any time or in any way from entering into\nnegotiations and discussions with another party for a possible transaction in lieu of the Transaction or from entering into a definitive\nagreement with respect thereto without prior notice to you or your Representatives.\nCONFIDENTIAL\nProvidence Equity June 23, 2015\nNon-Disclosure Agreement Page 4\n6.  You agree that, for a period of 18 months from the date of this agreement, unless such shall have been specifically invited or approved in\nwriting by the Board of Directors of the Company, neither you nor any of your affiliates or Representatives will in any manner, directly or\nindirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) an acquisition of any securities\n(or of beneficial ownership thereof) or a material amount of the assets of the Company; (ii) any tender or exchange offer, merger or other\nbusiness combination involving the Company or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Company; or (iv) any “solicitation” of “proxies (as such terms are used in the rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a “group” (as defined under the 1934 Act) with respect to any of the types of matters set forth in (a) above or (e) below;\n(c) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in\n(a) above or (e) below; (d) publicly request any amendment or waiver of any provision of this agreement; (e) otherwise act, alone or in\nconcert with others, to seek to control the management, Board of Directors or policies of the Company; or (f) enter into any discussions or\narrangements with any third party (other than your Representatives) with respect to any of the foregoing.\nYou understand and acknowledge that none of the Company, Raymond James, their respective affiliates or and the respective\nRepresentatives of the foregoing is making any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and each of the Company, Raymond James, their affiliates and the respective Representatives of the foregoing shall\nhave no liability to you, any of your affiliates, any of your or your affiliates’ Representatives or any other person that may be based upon or\nrelate to (a) the use of the Evaluation Material by you, your affiliates, or any of the respective Representatives of the foregoing or (b) any\nerrors therein or omissions therefrom. Only those particular representations and warranties, if any, that are made in a detailed, executed,\nwritten definitive agreement in customary form with respect to the Transaction (the “Definitive Agreement”) when, as, and if it is executed,\nand subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. Except for the\nobligations expressly set forth in this agreement or as may be set forth in a Definitive Agreement, neither you nor the Company nor any of\nthe respective Representatives of you and the Company shall have any obligation of any kind relating to or in connection with the\nTransaction or any similar transaction. For purposes of this paragraph, the term “Definitive Agreement” does not include an executed letter\nof intent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part. You\nunderstand and agree that you are aware, and your Representatives are aware, that, under certain circumstances, the federal and state\nsecurities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities of such\na company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities.\nCONFIDENTIAL\nProvidence Equity June 23, 2015\nNon-Disclosure Agreement Page 5\n8.  You hereby represent that, as of the date of this agreement, neither you nor any of your affiliates nor anyone acting on your behalf, has\n10. 11. acquired record or beneficial ownership of any voting securities of the Company or of any securities convertible into or exchangeable for\nvoting securities of the Company.\nThis agreement and all controversies arising from or relating to performance under this letter agreement shall be governed by and construed\nin accordance with the laws of the State of New York. Upon any breach or threatened breach of the provisions of this agreement, both\nparties shall be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other\nremedies available to the non-breaching party at law or in equity. You hereby irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the state and federal courts located in the Borough of Manhattan in the State of New York for any actions, suits or\nproceedings arising out of or relating to this agreement and the transactions contemplated hereby, and further agree that service of any\nprocess, summons, notice or document by U.S. registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court. You hereby irrevocably and unconditionally waive any objection to the\nlaying of venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the state and\nfederal courts located in the Borough of Manhattan in the State of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an\ninconvenient forum.\nIt is understood by the parties hereto that after you sign this agreement, the Company shall provide you with the actual name of the\nCompany. If you inform the Company within two (2) business days after learning the actual name of the Company (the “Waiting Period”)\nthat you will not pursue the Transaction, this agreement shall be terminated immediately, subject to paragraph 14 of this agreement, except\nwith regard to the eighteen (18) month term set forth in paragraph 14(c). The Company shall only provide you with further Evaluation\nMaterial after the earlier to occur of: (a) the termination of the Waiting Period and (b) notification from you that you will pursue the\nTransaction.\nSubject to your observance of the confidentiality obligations set forth herein, nothing in this agreement shall prevent you from evaluating a\npossible investment in and/or collaborating with, or entering into any transaction with (including an investment in), or monitoring,\nmanaging, maintaining or otherwise acting with respect to an investment in, a company whose business is similar to or competitive with the\nbusiness of the Company. The Company acknowledges that you deal with many companies, some of which may, independently of the\nCompany, pursue similar or competitive paths regarding their products or services, technology and/or market development plans to those\nwhich are or may be pursued by the Company. Although you are subject to the confidentiality obligations set forth in this agreement, the\noccurrence or existence of such similar or competitive activities shall not by itself be cause for any action or allegation by the Company\nthat you have failed to observe any of the confidentiality obligations set forth above.\nCONFIDENTIAL\nProvidence Equity June 23, 2015\nNon-Disclosure Agreement Page 6\n12.  No past, present or future director, officer, employee, member, shareholder, incorporator, partner, and/or affiliate of yours or any affiliate\n13. 14. thereof except to the extent any of the foregoing is a party to and bound by the terms of this agreement shall have any liability for your\nobligations under this agreement or for any claim based on, in respect of or by reason of such obligations or their creation.\nFor the avoidance of doubt, in the event there is any conflict, inconsistency or additional obligation between this agreement and the terms\nand conditions of any electronic dataroom now or hereafter applicable to you or your Representatives, the terms and conditions of this\nagreement shall govern and constitute the terms and conditions with respect to the access of Evaluation Material by you or your\nRepresentatives in any electronic dataroom.\n(a) No failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. This agreement can only be modified or waived in writing.\n(b) The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this agreement, which shall remain in full force and effect. This agreement contains the entire agreement between the\nCompany and you concerning the subject matter hereof and supersedes all previous agreements, written or oral, relating to the subject\nmatter hereof.\n(c) This agreement and all obligations hereunder shall expire and be of no further force and effect upon 18 months from the date hereof;\nprovided, however, that Sections 7, 9 and 14 shall survive the termination of this letter agreement.\n(d) This agreement shall be binding solely upon, inure to the benefit of, and be enforceable by, each party and its respective successors and\nassigns.\n(e) This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. This agreement or any counterpart may be executed and delivered by facsimile copies, each\nof which shall be deemed to be an original.\n[Signature page follows]\nCONFIDENTIAL\nProvidence Equity June 23, 2015\nNon-Disclosure Agreement Page 7\nIf you agree with the foregoing, please sign both copies of this agreement and return one to me, which shall thereupon constitute our agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nBy /s/ Marc Sheinbaum\nName: Marc Sheinbaum\nTitle: CEO\nHigher One Holdings, Inc.\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nProvidence Equity Partners L.L.C.\nBy: /s/ William S. Hughes\nName: William S. Hughes\nTitle:  Principal	EX-99.(D)(3) 11 d210854dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nEXECUTION VERSION\nJune 23, 2015\nCONFIDENTIAL\nYou have advised the Company's agent, Raymond James & Associates, Inc. (acting solely in its capacity as representative of the Company,\n"Raymond James"), that Providence Equity Partners L.L.C. (referred to as "you" or "your" as appropriate) is interested in exploring a possible\nnegotiated transaction with a company known to each of us under the code name "Winchester" (the "Company") (such possible transaction, the\n"Transaction"). In that connection, you have requested certain non-public oral and written information concerning the Company from officers,\ndirectors, employees or agents of the Company and Raymond James, the Company's financial advisor on this matter. All such information\nfurnished to you and your Representatives (as defined below) either on or after the date of this agreement, together with those portions of all\nnotes, analyses, opinions, compilations, studies, interpretations, summaries, extracts or other documents or records prepared by you or your\nRepresentatives which contain or otherwise reflect from such information, are collectively referred to herein as the "Evaluation Material."\nYou hereby agree as follows:\n1.\nYou and your directors and officers (or their corporate equivalents), employees, affiliates (such term as used in this agreement in relation to\nyou shall only mean those of your affiliates that have received Evaluation Material), agents, financial and other advisors (including, for the\navoidance of doubt, counsel and accountants of the same), counsel, accountants, Permitted Financing Sources (as defined below)\n(including, for the avoidance of doubt, any representatives of the same) (collectively, the "Representatives") shall use the Evaluation\nMaterial solely for the purpose of evaluating, negotiating and implementing the Transaction and shall keep the Evaluation Material\nconfidential, except that you and your Representatives may disclose the Evaluation Material or portions thereof to those of your\nRepresentatives who need to know such information for the purpose of evaluating, negotiating and implementing the Transaction. You shall\ninform your Representatives of the existence and terms of this agreement and direct them to comply with all obligations in this agreement\nthat apply to your Representatives or with which this agreement states you shall direct your representatives to comply. You shall be\nresponsible for any breach of the provisions of this agreement expressly applicable to your Representatives by your Representatives;\nprovided, that you shall not be responsible for a breach by any Representative that has executed a separate confidentiality agreement with\nthe Company. If you or any of your Representatives is required (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Evaluation Material or any Transaction Information, you or your\nRepresentative, as the case may be, shall (other than in the case of a routine inquiry by a regulatory authority, self-regulatory authority,\nstock exchange or bank examiner not directly targeting the Company or the Transaction) provide the Company with written notice of such\nrequirement as soon as practicable after learning of it and shall furnish only that portion of the Evaluation Material or Transaction\nInformation which you or your Representatives, as the case may be, is advised by counsel is legally required. You shall cooperate (at the\nexpense of the Company) in efforts to obtain a protective order and otherwise exercise commercially reasonable efforts to assure\nconfidential treatment will be accorded such Evaluation Material. As used herein, "Permitted Financing Sources" means any of your\npotential sources of debt or equity financing as shall have been approved in\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 2\nwriting by the Company prior to any Evaluation Material or Transaction Information having been provided to such source or any of its\nRepresentatives. For the avoidance of doubt, your Representatives shall not include any debt or equity financing sources other than\nPermitted Financing Sources.\n2.\nIf the Company or Raymond James so requests in writing, you shall as promptly as practicable return to the Company or destroy (at your\nsole election) all copies of the Evaluation Material furnished to you by or on behalf of the Company in your possession or, in the case of the\npossession of your Representatives, direct your Representatives to do the same. All other written Evaluation Material will be destroyed by\nyou and all oral Evaluation Material will be held subject to the terms of this agreement. You agree to confirm in writing, if so requested by\nthe Company, your compliance with the provisions of this paragraph once you have been requested to return or destroy all Evaluation\nMaterial. Notwithstanding the foregoing, (a) entities may retain copies of the Evaluation Material in accordance with bona fide policies and\nprocedures implemented to comply with applicable law, regulator, professional standards or business practice and (b) compliance with this\nSection 2 will not limit the ongoing confidentiality and other applicable obligations under this agreement.\n3.\nThe term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to\nthe participants in the industry in which the Company primarily participates or to the public (in each case, other than as a result of a\ndisclosure directly by you or any of the Representatives), (ii) was available to you or your Representatives without a duty of confidentiality\ndirectly or indirectly to the Company (A) prior to disclosure by the Company or (B) from a source that, to your knowledge, is not\nprohibited from disclosing such information to you by a contractual, legal or fiduciary obligation directly or indirectly to the Company or\n(iv) was or is independently developed by you or your Representatives without use of the Evaluation Material. The Evaluation Material\nshall remain the property of the Company to the extent it is the property of the Company prior to its disclosure hereunder and its disclosure\nshall not confer on you or any of your Representatives any rights (including intellectual property rights) over the Evaluation Material\nwhatsoever beyond those contained in this agreement.\n4.\nWithout the prior written consent of the Board of Directors of the Company, you shall not, and shall direct your Representatives not to, and\nto the extent the Company makes a disclosure referencing you or your affiliates, it and its Representatives shall not, disclose to any person\nor entity (a) that any investigations, discussions or negotiations are taking place concerning a possible transaction involving the Company\nand you, (b) that you have requested or received any Evaluation Material or (c) or any of the terms, conditions or other facts with respect to\nthe Transaction, including the status thereof (collectively, the "Transaction Information"). You represent that in considering the Transaction\nand reviewing the Evaluation Material, you and your Representatives are acting solely on your own behalf and not as part of a group with\nany third parties. You will not, directly or indirectly, except with the prior written consent of the Company, enter into any oral or written\nagreement, arrangement or understanding with any other person, or approach or have discussions with any person that may lead to the same\nwith any person regarding the possibility of joining in a combined proposal for a Transaction or a follow-on acquisition of part of the\nCompany or its\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 3\nassets, and you represent and warrant that neither you nor any of your Representatives has entered into any such agreement, arrangement,\nunderstanding or discussions prior to the date hereof. Furthermore, you will not, directly or through others, enter into any oral or written\nagreement, arrangement or understanding (or discussions that could reasonably be expected to lead to such an agreement, arrangement or\nunderstanding) regarding the engagement of a debt or equity financing source on an exclusive basis or in such a manner that would\notherwise prohibit or impede any other person from obtaining debt financing from such financing source in connection with a transaction\nwith the Company; provided, however, that a customary non-disclosure or confidentiality agreement that does not contain an exclusivity,\n"lock-up", "dry-up" or similar provision shall not be deemed to so limit, restrict, restrain or impair such financing source.\nNotwithstanding any other provision of this agreement, nothing shall prohibit or restrict you from entering into a customary "tree"\narrangement with a financial institution at which a deal team is working on obtaining or providing potential financing for you for purposes\nof the Transaction (and is not permitted to work on obtaining or providing potential financing for any other bidder pursuing a transaction\ninvolving the Company so long as other deal teams at such institution are permitted to work on obtaining or providing potential financing\nfor other bidders pursuing a transaction involving the Company.\n5.\nUntil the consummation of the Transaction by you or a third party, you shall not initiate or maintain contact (except for those contacts made\nin the ordinary course of business) with any officer, director, or employee of the Company or its subsidiaries, except with the express prior\npermission of the Chief Executive Officer of the Company or Raymond James. For a period of 18 months from the date hereof, you shall\nnot, and shall not permit any of your affiliates to, directly or indirectly, solicit for employment, or hire, any person who is an employee of\nthe Company or any of its subsidiaries with whom you or any of your Representatives have had contact or have been specifically identified\nto you (other than solely on an employee census) during the period of your investigation of the Company or its subsidiaries; provided that\nnothing herein shall restrict or preclude (a) your right to make generalized searches for employees by use of advertisements in any medium\nor to engage firms to conduct such searches, and from hiring employees as a result of such search, so long as such firms do not target or\nfocus on the Company or any of its subsidiaries or (b) the solicitation for hire or hiring of any such person whose employment was\nterminated by the Company at least 90 days prior to such solicitation. It is understood that, unless otherwise agreed to or directed by the\nCompany, all requests for information, tours and meetings, all questions or discussions relating to the procedures in making a proposal and\nall communications regarding the Transaction will be directed to Raymond James. The Company and Raymond James shall be free to\nconduct the process for exploring a potential Transaction, including access to Evaluation Material, as they in their sole discretion shall\ndetermine and to discontinue or change such process (including any previously announced rules or procedure), including as relates to\naccess to Evaluation Material, at any time, for any reason and without notice to you, and none of the Company, Raymond James, or any of\ntheir respective officers, directors, employees, agents or affiliates, shall have any liability to you as a result of such process. You further\nunderstand and agree that the Company and its Representatives shall not be limited at any time or in any way from entering into\nnegotiations and discussions with another party for a possible transaction in lieu of the Transaction or from entering into a definitive\nagreement with respect thereto without prior notice to you or your Representatives.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 4\n6.\nYou agree that, for a period of 18 months from the date of this agreement, unless such shall have been specifically invited or approved in\nwriting by the Board of Directors of the Company, neither you nor any of your affiliates or Representatives will in any manner, directly or\nindirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) an acquisition of any securities\n(or of beneficial ownership thereof) or a material amount of the assets of the Company; (ii) any tender or exchange offer, merger or other\nbusiness combination involving the Company or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Company; or (iv) any "solicitation" of "proxies" (as such terms are used in the rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a "group" (as defined under the 1934 Act) with respect to any of the types of matters set forth in (a) above or (e) below;\n(c) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in\n(a) above or (e) below; (d) publicly request any amendment or waiver of any provision of this agreement; (e) otherwise act, alone or in\nconcert with others, to seek to control the management, Board of Directors or policies of the Company; or (f) enter into any discussions or\narrangements with any third party (other than your Representatives) with respect to any of the foregoing.\n7.\nYou understand and acknowledge that none of the Company, Raymond James, their respective affiliates or and the respective\nRepresentatives of the foregoing is making any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and each of the Company, Raymond James, their affiliates and the respective Representatives of the foregoing shall\nhave no liability to you, any of your affiliates, any of your or your affiliates' Representatives or any other person that may be based upon or\nrelate to (a) the use of the Evaluation Material by you, your affiliates, or any of the respective Representatives of the foregoing or (b) any\nerrors therein or omissions therefrom. Only those particular representations and warranties, if any, that are made in a detailed, executed,\nwritten definitive agreement in customary form with respect to the Transaction (the "Definitive Agreement") when, as, and if it is executed,\nand subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. Except for the\nobligations expressly set forth in this agreement or as may be set forth in a Definitive Agreement, neither you nor the Company nor any of\nthe respective Representatives of you and the Company shall have any obligation of any kind relating to or in connection with the\nTransaction or any similar transaction. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter\nof intent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part. You\nunderstand and agree that you are aware, and your Representatives are aware, that, under certain circumstances, the federal and state\nsecurities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities of such\na company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 5\n8. You hereby represent that, as of the date of this agreement, neither you nor any of your affiliates nor anyone acting on your behalf, has\nacquired record or beneficial ownership of any voting securities of the Company or of any securities convertible into or exchangeable for\nvoting securities of the Company.\n9.\nThis agreement and all controversies arising from or relating to performance under this letter agreement shall be governed by and construed\nin accordance with the laws of the State of New York. Upon any breach or threatened breach of the provisions of this agreement, both\nparties shall be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other\nremedies available to the non-breaching party at law or in equity. You hereby irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the state and federal courts located in the Borough of Manhattan in the State of New York for any actions, suits\nor\nproceedings arising out of or relating to this agreement and the transactions contemplated hereby, and further agree that service of any\nprocess, summons, notice or document by U.S. registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court. You hereby irrevocably and unconditionally waive any objection to the\nlaying of venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the state and\nfederal courts located in the Borough of Manhattan in the State of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an\ninconvenient forum.\n10.\nIt is understood by the parties hereto that after you sign this agreement, the Company shall provide you with the actual name of the\nCompany. If you inform the Company within two (2) business days after learning the actual name of the Company (the "Waiting Period")\nthat you will not pursue the Transaction, this agreement shall be terminated immediately, subject to paragraph 14 of this agreement, except\nwith regard to the eighteen (18) month term set forth in paragraph 14(c). The Company shall only provide you with further Evaluation\nMaterial after the earlier to occur of: (a) the termination of the Waiting Period and (b) notification from you that you will pursue the\nTransaction.\n11. Subject to your observance of the confidentiality obligations set forth herein, nothing in this agreement shall prevent you from evaluating\na\npossible investment in and/or collaborating with, or entering into any transaction with (including an investment in), or monitoring,\nmanaging, maintaining or otherwise acting with respect to an investment in, a company whose business is similar to or competitive with the\nbusiness of the Company. The Company acknowledges that you deal with many companies, some of which may, independently of the\nCompany, pursue similar or competitive paths regarding their products or services, technology and/or market development plans to those\nwhich are or may be pursued by the Company. Although you are subject to the confidentiality obligations set forth in this agreement, the\noccurrence or existence of such similar or competitive activities shall not by itself be cause for any action or allegation by the Company\nthat you have failed to observe any of the confidentiality obligations set forth above.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 6\n12. No past, present or future director, officer, employee, member, shareholder, incorporator, partner, and/or affiliate of yours or any affiliate\nthereof except to the extent any of the foregoing is a party to and bound by the terms of this agreement shall have any liability for your\nobligations under this agreement or for any claim based on, in respect of or by reason of such obligations or their creation.\n13. For the avoidance of doubt, in the event there is any conflict, inconsistency or additional obligation between this agreement and the terms\nand conditions of any electronic dataroom now or hereafter applicable to you or your Representatives, the terms and conditions of this\nagreement shall govern and constitute the terms and conditions with respect to the access of Evaluation Material by you or your\nRepresentatives in any electronic dataroom.\n14.\n(a) No failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. This agreement can only be modified or waived in writing.\n(b) The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this agreement, which shall remain in full force and effect. This agreement contains the entire agreement between the\nCompany and you concerning the subject matter hereof and supersedes all previous agreements, written or oral, relating to the subject\nmatter hereof.\n(c) This agreement and all obligations hereunder shall expire and be of no further force and effect upon 18 months from the date hereof;\nprovided, however, that Sections 7, 9 and 14 shall survive the termination of this letter agreement.\n(d) This agreement shall be binding solely upon, inure to the benefit of, and be enforceable by, each party and its respective successors and\nassigns.\n(e) This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. This agreement or any counterpart may be executed and delivered by facsimile copies, each\nof which shall be deemed to be an original.\n[Signature page follows]\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 7\nIf you agree with the foregoing, please sign both copies of this agreement and return one to me, which shall thereupon constitute our agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nBy /s/ Marc Sheinbaum\nName: Marc Sheinbaum\nTitle: CEO\nHigher One Holdings, Inc.\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nProvidence Equity Partners L.L.C.\nBy:\n/s/ William S. Hughes\nName: William S. Hughes\nTitle:\nPrincipal	EX-99.(D)(3) 11 d210854dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nEXECUTION VERSION\nJune 23, 2015\nCONFIDENTIAL\nYou have advised the Company’s agent, Raymond James & Associates, Inc. (acting solely in its capacity as representative of the Company,\n“Raymond James”), that Providence Equity Partners L.L.C . (referred to as “you” or “your” as appropriate) is interested in exploring a possible\nnegotiated transaction with a company known to each of us under the code name “Winchester” (the “Company”) (such possible transaction, the\n“Transaction”). In that connection, you have requested certain non-public oral and written information concerning the Company from officers,\ndirectors, employees or agents of the Company and Raymond James, the Company’s financial advisor on this matter. All such information\nfurnished to you and your Representatives (as defined below) either on or after the date of this agreement, together with those portions of all\nnotes, analyses, opinions, compilations, studies, interpretations, summaries, extracts or other documents or records prepared by you or your\nRepresentatives which contain or otherwise reflect from such information, are collectively referred to herein as the “Evaluation Material.”\nYou hereby agree as follows:\n1. You and your directors and officers (or their corporate equivalents), employees, affiliates (such term as used in this agreement in relation to\nyou shall only mean those of your affiliates that have received Evaluation Material), agents, financial and other advisors (including, for the\navoidance of doubt, counsel and accountants of the same), counsel, accountants, Permitted Financing Sources (as defined below)\n(including, for the avoidance of doubt, any representatives of the same) (collectively, the “Representatives”) shall use the Evaluation\nMaterial solely for the purpose of evaluating, negotiating and implementing the Transaction and shall keep the Evaluation Material\nconfidential, except that you and your Representatives may disclose the Evaluation Material or portions thereof to those of your\nRepresentatives who need to know such information for the purpose of evaluating, negotiating and implementing the Transaction. You shall\ninform your Representatives of the existence and terms of this agreement and direct them to comply with all obligations in this agreement\nthat apply to your Representatives or with which this agreement states you shall direct your representatives to comply. You shall be\nresponsible for any breach of the provisions of this agreement expressly applicable to your Representatives by your Representatives;\nprovided, that you shall not be responsible for a breach by any Representative that has executed a separate confidentiality agreement with\nthe Company. If you or any of your Representatives is required (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Evaluation Material or any Transaction Information, you or your\nRepresentative, as the case may be, shall (other than in the case of a routine inquiry by a regulatory authority, self-regulatory authority,\nstock exchange or bank examiner not directly targeting the Company or the Transaction) provide the Company with written notice of such\nrequirement as soon as practicable after learning of it and shall furnish only that portion of the Evaluation Material or Transaction\nInformation which you or your Representatives, as the case may be, is advised by counsel is legally required. You shall cooperate (at the\nexpense of the Company) in efforts to obtain a protective order and otherwise exercise commercially reasonable efforts to assure\nconfidential treatment will be accorded such Evaluation Material. As used herein, “Permitted Financing Sources” means any of your\npotential sources of debt or equity financing as shall have been approved in\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 2\nwriting by the Company prior to any Evaluation Material or Transaction Information having been provided to such source or any of its\nRepresentatives. For the avoidance of doubt, your Representatives shall not include any debt or equity financing sources other than\nPermitted Financing Sources.\n2. If the Company or Raymond James so requests in writing, you shall as promptly as practicable return to the Company or destroy (at your\nsole election) all copies of the Evaluation Material furnished to you by or on behalf of the Company in your possession or, in the case of the\npossession of your Representatives, direct your Representatives to do the same. All other written Evaluation Material will be destroyed by\nyou and all oral Evaluation Material will be held subject to the terms of this agreement. You agree to confirm in writing, if so requested by\nthe Company, your compliance with the provisions of this paragraph once you have been requested to return or destroy all Evaluation\nMaterial. Notwithstanding the foregoing, (a) entities may retain copies of the Evaluation Material in accordance with bona fide policies and\nprocedures implemented to comply with applicable law, regulator, professional standards or business practice and (b) compliance with this\nSection 2 will not limit the ongoing confidentiality and other applicable obligations under this agreement.\n3. The term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally available to\nthe participants in the industry in which the Company primarily participates or to the public (in each case, other than as a result of a\ndisclosure directly by you or any of the Representatives), (ii) was available to you or your Representatives without a duty of confidentiality\ndirectly or indirectly to the Company (A) prior to disclosure by the Company or (B) from a source that, to your knowledge, is not\nprohibited from disclosing such information to you by a contractual, legal or fiduciary obligation directly or indirectly to the Company or\n(iv) was or is independently developed by you or your Representatives without use of the Evaluation Material. The Evaluation Material\nshall remain the property of the Company to the extent it is the property of the Company prior to its disclosure hereunder and its disclosure\nshall not confer on you or any of your Representatives any rights (including intellectual property rights) over the Evaluation Material\nwhatsoever beyond those contained in this agreement.\n4. Without the prior written consent of the Board of Directors of the Company, you shall not, and shall direct your Representatives not to, and\nto the extent the Company makes a disclosure referencing you or your affiliates, it and its Representatives shall not, disclose to any person\nor entity (a) that any investigations, discussions or negotiations are taking place concerning a possible transaction involving the Company\nand you, (b) that you have requested or received any Evaluation Material or (c) or any of the terms, conditions or other facts with respect to\nthe Transaction, including the status thereof (collectively, the “Transaction Information”). You represent that in considering the Transaction\nand reviewing the Evaluation Material, you and your Representatives are acting solely on your own behalf and not as part of a group with\nany third parties. You will not, directly or indirectly, except with the prior written consent of the Company, enter into any oral or written\nagreement, arrangement or understanding with any other person, or approach or have discussions with any person that may lead to the same\nwith any person regarding the possibility of joining in a combined proposal for a Transaction or a follow-on acquisition of part of the\nCompany or its\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 3\nassets, and you represent and warrant that neither you nor any of your Representatives has entered into any such agreement, arrangement,\nunderstanding or discussions prior to the date hereof. Furthermore, you will not, directly or through others, enter into any oral or written\nagreement, arrangement or understanding (or discussions that could reasonably be expected to lead to such an agreement, arrangement or\nunderstanding) regarding the engagement of a debt or equity financing source on an exclusive basis or in such a manner that would\notherwise prohibit or impede any other person from obtaining debt financing from such financing source in connection with a transaction\nwith the Company; provided, however, that a customary non-disclosure or confidentiality agreement that does not contain an exclusivity,\n“lock-up”, “dry-up” or similar provision shall not be deemed to so limit, restrict, restrain or impair such financing source.\nNotwithstanding any other provision of this agreement, nothing shall prohibit or restrict you from entering into a customary “tree”\narrangement with a financial institution at which a deal team is working on obtaining or providing potential financing for you for purposes\nof the Transaction (and is not permitted to work on obtaining or providing potential financing for any other bidder pursuing a transaction\ninvolving the Company so long as other deal teams at such institution are permitted to work on obtaining or providing potential financing\nfor other bidders pursuing a transaction involving the Company.\n5. Until the consummation of the Transaction by you or a third party, you shall not initiate or maintain contact (except for those contacts made\nin the ordinary course of business) with any officer, director, or employee of the Company or its subsidiaries, except with the express prior\npermission of the Chief Executive Officer of the Company or Raymond James. For a period of 18 months from the date hereof, you shall\nnot, and shall not permit any of your affiliates to, directly or indirectly, solicit for employment, or hire, any person who is an employee of\nthe Company or any of its subsidiaries with whom you or any of your Representatives have had contact or have been specifically identified\nto you (other than solely on an employee census) during the period of your investigation of the Company or its subsidiaries; provided that\nnothing herein shall restrict or preclude (a) your right to make generalized searches for employees by use of advertisements in any medium\nor to engage firms to conduct such searches, and from hiring employees as a result of such search, so long as such firms do not target or\nfocus on the Company or any of its subsidiaries or (b) the solicitation for hire or hiring of any such person whose employment was\nterminated by the Company at least 90 days prior to such solicitation. It is understood that, unless otherwise agreed to or directed by the\nCompany, all requests for information, tours and meetings, all questions or discussions relating to the procedures in making a proposal and\nall communications regarding the Transaction will be directed to Raymond James. The Company and Raymond James shall be free to\nconduct the process for exploring a potential Transaction, including access to Evaluation Material, as they in their sole discretion shall\ndetermine and to discontinue or change such process (including any previously announced rules or procedure), including as relates to\naccess to Evaluation Material, at any time, for any reason and without notice to you, and none of the Company, Raymond James, or any of\ntheir respective officers, directors, employees, agents or affiliates, shall have any liability to you as a result of such process. You further\nunderstand and agree that the Company and its Representatives shall not be limited at any time or in any way from entering into\nnegotiations and discussions with another party for a possible transaction in lieu of the Transaction or from entering into a definitive\nagreement with respect thereto without prior notice to you or your Representatives.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 4\n6. You agree that, for a period of 18 months from the date of this agreement, unless such shall have been specifically invited or approved in\nwriting by the Board of Directors of the Company, neither you nor any of your affiliates or Representatives will in any manner, directly or\nindirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) an acquisition of any securities\n(or of beneficial ownership thereof) or a material amount of the assets of the Company; (ii) any tender or exchange offer, merger or other\nbusiness combination involving the Company or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Company; or (iv) any “solicitation” of “proxies” (as such terms are used in the rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a “group” (as defined under the 1934 Act) with respect to any of the types of matters set forth in (a) above or (e) below;\n(c) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in\n(a) above or (e) below; (d) publicly request any amendment or waiver of any provision of this agreement; (e) otherwise act, alone or in\nconcert with others, to seek to control the management, Board of Directors or policies of the Company; or (f) enter into any discussions or\narrangements with any third party (other than your Representatives) with respect to any of the foregoing.\n7. You understand and acknowledge that none of the Company, Raymond James, their respective affiliates or and the respective\nRepresentatives of the foregoing is making any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and each of the Company, Raymond James, their affiliates and the respective Representatives of the foregoing shall\nhave no liability to you, any of your affiliates, any of your or your affiliates’ Representatives or any other person that may be based upon or\nrelate to (a) the use of the Evaluation Material by you, your affiliates, or any of the respective Representatives of the foregoing or (b) any\nerrors therein or omissions therefrom. Only those particular representations and warranties, if any, that are made in a detailed, executed,\nwritten definitive agreement in customary form with respect to the Transaction (the “Definitive Agreement”) when, as, and if it is executed,\nand subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. Except for the\nobligations expressly set forth in this agreement or as may be set forth in a Definitive Agreement, neither you nor the Company nor any of\nthe respective Representatives of you and the Company shall have any obligation of any kind relating to or in connection with the\nTransaction or any similar transaction. For purposes of this paragraph, the term “Definitive Agreement” does not include an executed letter\nof intent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part. You\nunderstand and agree that you are aware, and your Representatives are aware, that, under certain circumstances, the federal and state\nsecurities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities of such\na company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 5\n8. You hereby represent that, as of the date of this agreement, neither you nor any of your affiliates nor anyone acting on your behalf, has\nacquired record or beneficial ownership of any voting securities of the Company or of any securities convertible into or exchangeable for\nvoting securities of the Company.\n9. This agreement and all controversies arising from or relating to performance under this letter agreement shall be governed by and construed\nin accordance with the laws of the State of New York. Upon any breach or threatened breach of the provisions of this agreement, both\nparties shall be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other\nremedies available to the non-breaching party at law or in equity. You hereby irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the state and federal courts located in the Borough of Manhattan in the State of New York for any actions, suits or\nproceedings arising out of or relating to this agreement and the transactions contemplated hereby, and further agree that service of any\nprocess, summons, notice or document by U.S . registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court. You hereby irrevocably and unconditionally waive any objection to the\nlaying of venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the state and\nfederal courts located in the Borough of Manhattan in the State of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an\ninconvenient forum.\n10. It is understood by the parties hereto that after you sign this agreement, the Company shall provide you with the actual name of the\nCompany. If you inform the Company within two (2) business days after learning the actual name of the Company (the “Waiting Period”)\nthat you will not pursue the Transaction, this agreement shall be terminated immediately, subject to paragraph 14 of this agreement, except\nwith regard to the eighteen (18) month term set forth in paragraph 14(c). The Company shall only provide you with further Evaluation\nMaterial after the earlier to occur of: (a) the termination of the Waiting Period and (b) notification from you that you will pursue the\nTransaction.\n11. Subject to your observance of the confidentiality obligations set forth herein, nothing in this agreement shall prevent you from evaluating a\npossible investment in and/or collaborating with, or entering into any transaction with (including an investment in), or monitoring,\nmanaging, maintaining or otherwise acting with respect to an investment in, a company whose business is similar to or competitive with the\nbusiness of the Company. The Company acknowledges that you deal with many companies, some of which may, independently of the\nCompany, pursue similar or competitive paths regarding their products or services, technology and/or market development plans to those\nwhich are or may be pursued by the Company. Although you are subject to the confidentiality obligations set forth in this agreement, the\noccurrence or existence of such similar or competitive activities shall not by itself be cause for any action or allegation by the Company\nthat you have failed to observe any of the confidentiality obligations set forth above.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 6\n12. No past, present or future director, officer, employee, member, shareholder, incorporator, partner, and/or affiliate of yours or any affiliate\nthereof except to the extent any of the foregoing is a party to and bound by the terms of this agreement shall have any liability for your\nobligations under this agreement or for any claim based on, in respect of or by reason of such obligations or their creation.\n13. For the avoidance of doubt, in the event there is any conflict, inconsistency or additional obligation between this agreement and the terms\nand conditions of any electronic dataroom now or hereafter applicable to you or your Representatives, the terms and conditions of this\nagreement shall govern and constitute the terms and conditions with respect to the access of Evaluation Material by you or your\nRepresentatives in any electronic dataroom.\n14. (a) No failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. This agreement can only be modified or waived in writing.\n(b) The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this agreement, which shall remain in full force and effect. This agreement contains the entire agreement between the\nCompany and you concerning the subject matter hereof and supersedes all previous agreements, written or oral, relating to the subject\nmatter hereof.\n(c) This agreement and all obligations hereunder shall expire and be of no further force and effect upon 18 months from the date hereof;\nprovided, however, that Sections 7, 9 and 14 shall survive the termination of this letter agreement.\n(d) This agreement shall be binding solely upon, inure to the benefit of, and be enforceable by, each party and its respective successors and\nassigns.\n(e) This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. This agreement or any counterpart may be executed and delivered by facsimile copies, each\nof which shall be deemed to be an original.\n[Signature page follows]\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 7\nIf you agree with the foregoing, please sign both copies of this agreement and return one to me, which shall thereupon constitute our agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nBy /s/ Marc Sheinbaum\nName: Marc Sheinbaum\nTitle: CEO\nHigher One Holdings, Inc.\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nProvidence Equity Partners L.L.C.\nBy:\n/s/ William S. Hughes\nName: William S. Hughes\nTitle:\nPrincipal
2632c4c1238356489cab88d58e1a5fb0.pdf	effective_date jurisdiction party term	EX-10.18 17 dex1018.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE - JOHN HIGGINS\nExhibit 10.18\nLOGO\nNON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE AGREEMENT\nThis Agreement is made this 5 day of May, 2006 by and between InfrastruX Group (hereinafter the “Company”, a term which includes the\nCompany’s successors and assigns) and JOHN RANDELL HIGGINS (hereinafter “Employee”) as a condition of, and in consideration of,\nEmployees’s employment or continued employment by the Company. By the mutual promises and covenants made herein, the undersigned parties\nagree as follows:\n1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer (c) will\nobtain valuable, continuing training; (d) may be introduced to the Company’s customers and/or prospective customers; (e) will be\nprovided with support and be permitted to utilize the Company’s goodwill and reputation in the performance of his or her duties; (f) will\nobtain and have access to the Company’s confidential, proprietary, customer, or trade secret information, including, but not limited to,\nnon-public information regarding the Company’s silicone fluid injection process; and (g) will have the use and enjoyment of the\nCompany’s materials, equipment, facilities and overall research and business endeavors in connection with the performance of his or her\nduties.\n2. No Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee’s best skill and effort for the term\nof Employee’s employment with the Company. Employee agrees that for the term of Employee’s employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company except with the written\nauthorization of the Company’s President. In connection with this provision, Employee agrees not to sell outside products or services to\nthe Company’s employees or customers during the term of Employee’s employment with the Company.\n3. Non-Competition Covenant. Employee will not, during the term of Employee’s employment with the Company and for a period of one\n(1) year thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, operations, supervisory, or consulting nature, whether with or without remuneration, to any\nbusiness or activity involved in the electric, gas, large bore directional drilling, environmental services, petrochemical\ntelecommunication, cable restoration/cable life extension, and/or cable replacement industry, if such business or activity is in competition\nor is preparing to be in completion with any business, research or endeavor of the Company. The scope of competitive activities\nprohibited by this Agreement shall be limited to those activities of the type conducted, authorized, offered, or provided by Employee to\nthe Company customers with whom the Employee had contact with during the course of Employee’s employment with the Company\nduring the twelve-month period prior to the date of termination of Employee’s employment with the Company, and involving products\nand/or technology similar to those handled, created, sold or distributed by the Company, and/or services of any executive, marketing,\nadministrative, operations, supervisory, or consulting nature similar to those provided by the Company during the twelve-month period\nprior to the date of termination of Employee’s employment with the Company.\n4. Inventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries related in\nany manner to the Company’s business and conceived by Employee or developed, in whole or in part, by Employee during working\nhours or on the property of the Company. Such ideas, inventions and discoveries will be the property of the Company, and the Company\nwill have the right to any patents, trademarks, or copyrights that may be issued with respect thereto. Employee hereby\nConfidential and Proprietary Property of InfrastruX Group.\n1\nth\nagrees to assign to the Company, or its nominee, all right, title and interest in such ideas, inventions, discoveries, patient, trademark and\ncopyright application, patents, trademarks and copyrights and assignments thereof, and will do such things as the Company may require\nto establish and protect its ownership and to effectuate the foregoing, either during Employee’s employment or thereafter. Excluded from\nthe operation of this provision are those ideas, inventions, and discoveries, patented and unpatented, of Employee’s that were made prior\nto Employee’s employment by the Company and that have been described in writing by Employee and acknowledged in writing by the\nPresident of the Company.\nNOTICE: Notwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate Employee to assign\nor offer to assign to the Company any of Employee’s rights in an invention for which no equipment, supplies, facilities or trade secret\ninformation of the Company was used and which was developed entirely on Employee’s own time, unless (a) the invention relates (i)\ndirectly to the business of the Company or (ii) to the Company’s actual or demonstrably anticipated research or development or (b) the\ninvention results from any work performed by Employee for the Company. This satisfies the written notice and other requirements of\nRCW 49.44.140.\n5. Nondisclosure; Confidentiality. During Employee’s employment with the Company and after such employment terminates, Employee\nwill treat as confidential and proprietary to the Company any Confidential information, whether in tangible or intangible form, received\nor acquired by Employee in the course of performance of Employee’s employment and relating to the business affairs, customers and\nprospective customers, finances, equipment, products, methods, processes, design and engineering data, know-how, or technology of the\nCompany. Employee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated\nto protect confidential information for the benefit of any customer, client, or other third party.\n“Confidential Information” means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company, and includes, but is not limited to: the Company’s pricing and marketing\nstrategies and characteristics; profit margins and other financial information; methods of operations and sales; sources of supplies;\ninformation regarding customers or prospective customers such as names, contact persons, needs and requirements, and contract renewal\ndates; technical information and-know-how; and any other information relating to the Company’s business that is treated by the\nCompany as confidential. For purposes of this Agreement, information shall not lose its character as confidential if it is known to the\npublic or to any competitor solely by virtue of unauthorized or bad faith disclosure or publication of the information.\n6. Residuals. The terms of confidentiality under this Agreement shall not be construed to limit Employee’s right to independently develop\nor acquire products without use of the Company’s Confidential Information provided such development or acquisition does not violate\nthis Agreement. However, Employee shall not be free to use for any purpose the residuals resulting from access to or work with the\nConfidential Information of the Company. The term “residuals” means (a) Confidential Information In intangible form that is retained in\nmemory by persons who have had access to the Confidential information, and (b) information in any form that is derived from or based\non employee’s access to Confidential information.\n7. Nonsolicitation of Customers. Employee agrees that for a period of one (1) year following the termination of Employee’s employment,\nEmployee shall not directly, or indirectly by assisting others, contact or do business with any customer or prospective customer of the\nCompany for purposes of providing products or services that are competitive with those provided, or being studied or developed, by the\nCompany. This covenant applies to those customers and the related entities of those customers to which the Company sold products or\nservices with whom the Employee had contact at any time during the twelve-month period prior to the date of termination of Employee’s\nemployment with the Company, and those prospective customers with whom the Employee had contact with which the Company\nactively pursued sates or the provision of services at any time during the twelve-month period prior to the date of termination of\nEmployee’s employment with the Company.\nConfidential and Proprietary Property of InfrastruX Group.\n2\n8. Nonsolicitation of Employees. Employee agrees that for a period of one (1) year following the termination of Employee’s employment,\nEmployee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other employee or former\nemployee of the Company.\n9. Return of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials, and all copies thereof, that relate to the Company’s business and were made or compiled by Employee at\nany time or were in Employee’s possession in the course of or incident to Employee’s employment. Employee agrees that all such\nproperty, including any and all copies, is the property of the Company, held by Employee in trust solely for the benefit of the Company,\nand will be delivered to the Company upon termination of the Employee’s employment or at any other time upon request by the\nCompany. It is specifically agreed that any documents, card files, notebooks, rolodexes, or computer printouts containing confidential\ncustomer information are the property of the Company regardless of who prepared or assembled the information.\n10. Enforcement\nA. Reasonableness of Restrictions. Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not\nunreasonably impair Employee’s ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief. Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement.\nC. Extension of Covenants. During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\nD. Survival of Covenants. The obligations of Employee pursuant to Sections 3 – 9 of this Agreement shall survive the termination of\nthis Agreement and of Employee’s employment with the Company.\nE. Attorneys’ Fees. Employee agrees to pay the Company any attorney’s fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nF. Choice of Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Washington to the maximum\nextent permissible under law. Employee irrevocably consents to the jurisdiction and venue of the federal and state courts located at King\nCounty, Washington with respect to any dispute arising out of or in connection with this Agreement, and agrees not to commence or prosecute\nany action or proceeding arising out of or related to this Agreement other than in the aforementioned courts.\n11. Judicial Modification. The parties agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent permissible by law.\n12. Construction of Agreement.\nA. No Employment Rights. This Agreement does not grant or extend to Employee any rights to employment by the Company. The\nEmployee remains an employee at will, meaning that either Employer or the Company may terminate the employment of Employee,\nwith cause or without cause and with or without notice. This Agreement shall survive the termination of the employment of Employee\nand the terms and provisions of this Agreement shall remain enforceable in accordance with its terms.\nConfidential and Proprietary Property of InfrastruX Group.\n3\nB. Other Claims and Defenses. The parties agree that the existence of any claims, defenses of obligations between the parties not\ndescribed the in Agreement shall not affect the enforceability of this Agreement or the remedies thereunder.\nC. Successors and Assigns. The parties agree that this Agreement shall be automatically assigned to any successor of the Company,\nunless specifically provided otherwise in a writing executed by the President of the Company.\nD. Entire Understanding; Modification. This Agreement contains the entire understanding between the parties only as to the subjects\nset forth herein, and supersedes any prior understandings and agreements, written or oral, among them respecting the subject matter\nherein. This Agreement may not be modified, except by a writing signed by Employee and the President of the Company.\n13. Employee’s Representation Regarding Other Agreements. Employee represents and warrants that he/she is not a party to or\notherwise subject to or bound by the terms of any contract, agreement or understanding which in an manner would limit or otherwise\naffect his/her ability to perform his/her duties as an employee of the Company, including without limitation any contract, agreement or\nunderstanding containing terms and provisions similar in any manner to those contained in Section 3 of this Agreement. Employee\nfurther represents and warrants that his/her employment with the Company will not require him/her to disclose or use any confidential\ninformation belonging to prior employers or other persons, or entities.\n14. Certificate of Understanding. Employee certifies that Employee received a copy of this Agreement for review and study before being\nasked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor of\nEmployee’s choice; understands Employee’s obligations under the Agreement; and signs this Agreement freely and voluntarily, and\nwithout any coercion from any person.\nEmployee\nCompany\nSignature:\n/s/ John R. Higgins\nSignature:\n/s/ Richard Schwartz\nPrint Name: John R. Higgins\nPrint Name: Richard Schwartz\nDate:\n5/5/2006\nTitle:\nCOO\nDate:\n5/5/2006\nConfidential and Proprietary Property of InfrastruX Group.\n4	EX-10.18 17 dex1018.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE - JOHN HIGGINS Exhibit 10.18\n».LOGO\nNON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE AGREEMENT\nThis Agreement is made this 5 day of May, 2006 by and between InfrastruX Group (hereinafter the “Company”, a term which includes the Company’s successors and assigns) and JOHN RANDELL HIGGINS (hereinafter “Employee”) as a condition of, and in consideration of, Employees’s employment or continued employment by the Company. By the mutual promises and covenants made herein, the undersigned parties agree as follows: 1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer (c) will\nobtain valuable, continuing training; (d) may be introduced to the Company’s customers and/or prospective customers; (e) will be\nprovided with support and be permitted to utilize the Company’s goodwill and reputation in the performance of his or her duties; (f) will\nobtain and have access to the Company’s confidential, proprietary, customer, or trade secret information, including, but not limited to,\nnon-public information regarding the Company’s silicone fluid injection process; and (g) will have the use and enjoyment of the\nCompany’s materials, equipment, facilities and overall research and business endeavors in connection with the performance of his or her\nduties.\nNo Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee’s best skill and effort for the term\nof Employee’s employment with the Company. Employee agrees that for the term of Employee’s employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company except with the written\nauthorization of the Company’s President. In connection with this provision, Employee agrees not to sell outside products or services to\nthe Company’s employees or customers during the term of Employee’s employment with the Company.\nNon-Competition Covenant. Employee will not, during the term of Employee’s employment with the Company and for a period of one\n(1) year thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, operations, supervisory, or consulting nature, whether with or without remuneration, to any\nbusiness or activity involved in the electric, gas, large bore directional drilling, environmental services, petrochemical\ntelecommunication, cable restoration/cable life extension, and/or cable replacement industry, if such business or activity is in competition\nor is preparing to be in completion with any business, research or endeavor of the Company. The scope of competitive activities\nprohibited by this Agreement shall be limited to those activities of the type conducted, authorized, offered, or provided by Employee to\nthe Company customers with whom the Employee had contact with during the course of Employee’s employment with the Company\nduring the twelve-month period prior to the date of termination of Employee’s employment with the Company, and involving products\nand/or technology similar to those handled, created, sold or distributed by the Company, and/or services of any executive, marketing,\nadministrative, operations, supervisory, or consulting nature similar to those provided by the Company during the twelve-month period\nprior to the date of termination of Employee’s employment with the Company.\nInventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries related in\nany manner to the Company’s business and conceived by Employee or developed, in whole or in part, by Employee during working\nhours or on the property of the Company. Such ideas, inventions and discoveries will be the property of the Company, and the Company\nwill have the right to any patents, trademarks, or copyrights that may be issued with respect thereto. Employee hereby\nConfidential and Proprietary Property of InfrastruX Group.\n1\nagrees to assign to the Company, or its nominee, all right, title and interest in such ideas, inventions, discoveries, patient, trademark and\ncopyright application, patents, trademarks and copyrights and assignments thereof, and will do such things as the Company may require\nto establish and protect its ownership and to effectuate the foregoing, either during Employee’s employment or thereafter. Excluded from\nthe operation of this provision are those ideas, inventions, and discoveries, patented and unpatented, of Employee’s that were made prior\nto Employee’s employment by the Company and that have been described in writing by Employee and acknowledged in writing by the\nPresident of the Company.\nNOTICE: Notwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate Employee to assign\nor offer to assign to the Company any of Employee’s rights in an invention for which no equipment, supplies, facilities or trade secret\ninformation of the Company was used and which was developed entirely on Employee’s own time, unless (a) the invention relates (i)\ndirectly to the business of the Company or (ii) to the Company’s actual or demonstrably anticipated research or development or (b) the\ninvention results from any work performed by Employee for the Company. This satisfies the written notice and other requirements of\nRCW 49.44.140.\nNondisclosure; Confidentiality. During Employee’s employment with the Company and after such employment terminates, Employee\nwill treat as confidential and proprietary to the Company any Confidential information, whether in tangible or intangible form, received\nor acquired by Employee in the course of performance of Employee’s employment and relating to the business affairs, customers and\nprospective customers, finances, equipment, products, methods, processes, design and engineering data, know-how, or technology of the\nCompany. Employee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated\nto protect confidential information for the benefit of any customer, client, or other third party.\n“Confidential Information” means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company, and includes, but is not limited to: the Company’s pricing and marketing\nstrategies and characteristics; profit margins and other financial information; methods of operations and sales; sources of supplies;\ninformation regarding customers or prospective customers such as names, contact persons, needs and requirements, and contract renewal\ndates; technical information and-know-how; and any other information relating to the Company’s business that is treated by the\nCompany as confidential. For purposes of this Agreement, information shall not lose its character as confidential if it is known to the\npublic or to any competitor solely by virtue of unauthorized or bad faith disclosure or publication of the information.\nResiduals. The terms of confidentiality under this Agreement shall not be construed to limit Employee’s right to independently develop\nor acquire products without use of the Company’s Confidential Information provided such development or acquisition does not violate\nthis Agreement. However, Employee shall not be free to use for any purpose the residuals resulting from access to or work with the\nConfidential Information of the Company. The term “residuals” means (a) Confidential Information In intangible form that is retained in\nmemory by persons who have had access to the Confidential information, and (b) information in any form that is derived from or based\non employee’s access to Confidential information.\nNonsolicitation of Customers. Employee agrees that for a period of one (1) year following the termination of Employee’s employment,\nEmployee shall not directly, or indirectly by assisting others, contact or do business with any customer or prospective customer of the\nCompany for purposes of providing products or services that are competitive with those provided, or being studied or developed, by the\nCompany. This covenant applies to those customers and the related entities of those customers to which the Company sold products or\nservices with whom the Employee had contact at any time during the twelve-month period prior to the date of termination of Employee’s\nemployment with the Company, and those prospective customers with whom the Employee had contact with which the Company\nactively pursued sates or the provision of services at any time during the twelve-month period prior to the date of termination of\nEmployee’s employment with the Company.\nConfidential and Proprietary Property of InfrastruX Group.\n2\n8. Nonsolicitation of Employees. Employee agrees that for a period of one (1) year following the termination of Employee’s employment,\nEmployee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other employee or former\nemployee of the Company.\n9.  Return of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials, and all copies thereof, that relate to the Company’s business and were made or compiled by Employee at\nany time or were in Employee’s possession in the course of or incident to Employee’s employment. Employee agrees that all such\nproperty, including any and all copies, is the property of the Company, held by Employee in trust solely for the benefit of the Company,\nand will be delivered to the Company upon termination of the Employee’s employment or at any other time upon request by the\nCompany. It is specifically agreed that any documents, card files, notebooks, rolodexes, or computer printouts containing confidential\ncustomer information are the property of the Company regardless of who prepared or assembled the information.\n10. Enforcement\nA. Reasonableness of Restrictions. Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not\nunreasonably impair Employee’s ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief. Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement.\nC. Extension of Covenants. During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\nD. Survival of Covenants. The obligations of Employee pursuant to Sections 3 — 9 of this Agreement shall survive the termination of\nthis Agreement and of Employee’s employment with the Company.\nE. Attorneys’ Fees. Employee agrees to pay the Company any attorney’s fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nF. Choice of Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Washington to the maximum\nextent permissible under law. Employee irrevocably consents to the jurisdiction and venue of the federal and state courts located at King\nCounty, Washington with respect to any dispute arising out of or in connection with this Agreement, and agrees not to commence or prosecute\nany action or proceeding arising out of or related to this Agreement other than in the aforementioned courts.\n11. Judicial Modification. The parties agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent permissible by law.\n12. Construction of Agreement.\nA. No Employment Rights. This Agreement does not grant or extend to Employee any rights to employment by the Company. The\nEmployee remains an employee at will, meaning that either Employer or the Company may terminate the employment of Employee,\nwith cause or without cause and with or without notice. This Agreement shall survive the termination of the employment of Employee\nand the terms and provisions of this Agreement shall remain enforceable in accordance with its terms.\nConfidential and Proprietary Property of InfrastruX Group.\n3\n13. 14. B. Other Claims and Defenses. The parties agree that the existence of any claims, defenses of obligations between the parties not\ndescribed the in Agreement shall not affect the enforceability of this Agreement or the remedies thereunder.\nC. Successors and Assigns. The parties agree that this Agreement shall be automatically assigned to any successor of the Company,\nunless specifically provided otherwise in a writing executed by the President of the Company.\nD. Entire Understanding; Modification. This Agreement contains the entire understanding between the parties only as to the subjects\nset forth herein, and supersedes any prior understandings and agreements, written or oral, among them respecting the subject matter\nherein. This Agreement may not be modified, except by a writing signed by Employee and the President of the Company.\nEmployee’s Representation Regarding Other Agreements. Employee represents and warrants that he/she is not a party to or\notherwise subject to or bound by the terms of any contract, agreement or understanding which in an manner would limit or otherwise\naffect his/her ability to perform his/her duties as an employee of the Company, including without limitation any contract, agreement or\nunderstanding containing terms and provisions similar in any manner to those contained in Section 3 of this Agreement. Employee\nfurther represents and warrants that his/her employment with the Company will not require him/her to disclose or use any confidential\ninformation belonging to prior employers or other persons, or entities.\nCertificate of Understanding. Employee certifies that Employee received a copy of this Agreement for review and study before being\nasked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor of\nEmployee’s choice; understands Employee’s obligations under the Agreement; and signs this Agreement freely and voluntarily, and\nwithout any coercion from any person.\nEmployee Company\nSignature: /s/ John R. Higgins Signature: /s/ Richard Schwartz\nPrint Name: John R. Higgins Print Name: Richard Schwartz\nDate: 5/5/2006 Title: COO\nDate: 5/5/2006\nConfidential and Proprietary Property of InfrastruX Group.\n4	EX-10.18 17 dex 1018.htm NONCOMPETITIONNON-SOLICITATIONNON-DISCLOSURE JOHN HIGGINS\nExhibit 10.18\nLogo\nNON COMPETITIONNON-SOLICITATONNON-DISCLOSUREA AGREEMENT\nThis Agreement is made this 5th day of May, 2006 by and between InfrastruX Group (hereinafter the "Company", a term which includes the\nCompany's successors and assigns) and JOHN RANDELL HIGGINS (hereinafter "Employee") as a condition of, and in consideration of,\nEmployees's employment or continued employment by the Company. By the mutual promises and covenants made herein, the undersigned parties\nagree as follows:\n1.\nProvision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer (c) will\nobtain valuable, continuing training; (d) may be introduced to the Company's customers and/or prospective customers; (e) will be\nprovided with support and be permitted to utilize the Company's goodwill and reputation in the performance of his or her duties; (f) will\nobtain and have access to the Company's confidential, proprietary, customer, or trade secret information, including, but not limited to,\nnon-public information regarding the Company's silicone fluid injection process; and (g) will have the use and enjoyment of the\nCompany's materials, equipment, facilities and overall research and business endeavors in connection with the performance of his or her\nduties.\n2.\nNo Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee's best skill and effort for the term\nof Employee's employment with the Company. Employee agrees that for the term of Employee's employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company except with the written\nauthorization of the Company's President. In connection with this provision, Employee agrees not to sell outside products or services\nto\nthe Company's employees or customers during the term of Employee's employment with the Company.\n3.\nNon-Competition Covenant. Employee will not, during the term of Employee's employment with the Company and for a period of one\n(1) year thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, operations, supervisory, or consulting nature, whether with or without remuneration, to any\nbusiness or activity involved in the electric, gas, large bore directional drilling, environmental services, petrochemical\ntelecommunication, cable restoration/cable life extension, and/or cable replacement industry, if such business or activity is in competition\nor is preparing to be in completion with any business, research or endeavor of the Company. The scope of competitive activities\nprohibited by this Agreement shall be limited to those activities of the type conducted, authorized, offered, or provided by Employee to\nthe Company customers with whom the Employee had contact with during the course of Employee's employment with the Company\nduring the twelve-month period prior to the date of termination of Employee's employment with the Company, and involving products\nand/or technology similar to those handled, created, sold or distributed by the Company, and/or services of any executive, marketing,\nadministrative, operations, supervisory, or consulting nature similar to those provided by the Company during the twelve-month period\nprior to the date of termination of Employee's employment with the Company.\n4.\nInventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries related in\nany manner to the Company's business and conceived by Employee or developed, in whole or in part, by Employee during working\nhours or on the property of the Company. Such ideas, inventions and discoveries will be the property of the Company, and the Company\nwill have the right to any patents, trademarks, or copyrights that may be issued with respect thereto. Employee hereby\nConfidential and Proprietary Property of InfrastruX Group.\n1\nagrees to assign to the Company, or its nominee, all right, title and interest in such ideas, inventions, discoveries, patient, trademark and\ncopyright application, patents, trademarks and copyrights and assignments thereof, and will do such things as the Company may require\nto establish and protect its ownership and to effectuate the foregoing, either during Employee's employment or thereafter. Excluded from\nthe operation of this provision are those ideas, inventions, and discoveries, patented and unpatented, of Employee's that were made prior\nto\nEmployee's employment by the Company and that have been described in writing by Employee and acknowledged in writing by the\nPresident of the Company.\nNOTICE: Notwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate Employee to assign\nor offer to assign to the Company any of Employee's rights in an invention for which no equipment, supplies, facilities or trade secret\ninformation of the Company was used and which was developed entirely on Employee's own time, unless (a) the invention relates (i)\ndirectly to the business of the Company or (ii) to the Company's actual or demonstrably anticipated research or development or (b) the\ninvention results from any work performed by Employee for the Company. This satisfies the written notice and other requirements of\nRCW 49.44.140.\n5.\nNondisclosure; Confidentiality. During Employee's employment with the Company and after such employment terminates, Employee\nwill treat as confidential and proprietary to the Company any Confidential information, whether in tangible or intangible form, received\nor acquired by Employee in the course of performance of Employee's employment and relating to the business affairs, customers and\nprospective customers, finances, equipment, products, methods, processes, design and engineering data, know-how, or technology of the\nCompany. Employee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated\nto protect confidential information for the benefit of any customer, client, or other third party.\n"Confidential Information" means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company, and includes, but is not limited to: the Company's pricing and marketing\nstrategies and characteristics; profit margins and other financial information; methods of operations and sales; sources of supplies;\ninformation regarding customers or prospective customers such as names, contact persons, needs and requirements, and contract renewal\ndates; technical information and-know-how; and any other information relating to the Company's business that is treated by the\nCompany as confidential For purposes of this Agreement, information shall not lose its character as confidential if it is known to the\npublic or to any competitor solely by virtue of unauthorized or bad faith disclosure or publication of the information.\n6.\nResiduals. The terms of confidentiality under this Agreement shall not be construed to limit Employee's right to independently develop\nor acquire products without use of the Company's Confidential Information provided such development or acquisition does not violate\nthis Agreement. However, Employee shall not be free to use for any purpose the residuals resulting from access to or work with the\nConfidential Information of the Company. The term "residuals" means (a) Confidential Information In intangible form that is retained in\nmemory by persons who have had access to the Confidential information, and (b) information in any form that is derived from or based\non employee's access to Confidential information.\n7.\nNonsolicitation of Customers. Employee agrees that for a period of one (1) year following the termination of Employee's employment,\nEmployee shall not directly, or indirectly by assisting others, contact or do business with any customer or prospective customer of the\nCompany for purposes of providing products or services that are competitive with those provided, or being studied or developed, by the\nCompany. This covenant applies to those customers and the related entities of those customers to which the Company sold products or\nservices with whom the Employee had contact at any time during the twelve-month period prior to the date of termination of Employee's\nemployment with the Company, and those prospective customers with whom the Employee had contact with which the Company\nactively pursued sates or the provision of services at any time during the twelve-month period prior to the date of termination of\nEmployee's employment with the Company.\nConfidential and Proprietary Property of InfrastruX Group.\n2\n8. Nonsolicitation of Employees. Employee agrees that for a period of one (1) year following the termination of Employee's employment,\nEmployee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other employee or former\nemployee of the Company.\n9.\nReturn of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials, and all copies thereof, that relate to the Company's business and were made or compiled by Employee\nat\nany time or were in Employee's possession in the course of or incident to Employee's employment. Employee agrees that all such\nproperty, including any and all copies, is the property of the Company, held by Employee in trust solely for the benefit of the Company,\nand will be delivered to the Company upon termination of the Employee's employment or at any other time upon request by the\nCompany. It is specifically agreed that any documents, card files, notebooks, rolodexes, or computer printouts containing confidential\ncustomer information are the property of the Company regardless of who prepared or assembled the information.\n10. Enforcement\nA. Reasonableness of Restrictions. Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not\nunreasonably impair Employee's ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief. Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement.\nC. Extension of Covenants. During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\nD. Survival of Covenants. The obligations of Employee pursuant to Sections 3 9 of this Agreement shall survive the termination of\nthis Agreement and of Employee's employment with the Company.\nE. Attorneys' Fees. Employee agrees to pay the Company any attorney's fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nF. Choice of Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Washington to the maximum\nextent permissible under law. Employee irrevocably consents to the jurisdiction and venue of the federal and state courts located at King\nCounty, Washington with respect to any dispute arising out of or in connection with this Agreement, and agrees not to commence or prosecute\nany action or proceeding arising out of or related to this Agreement other than in the aforementioned courts.\n11. Judicial Modification. The parties agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent permissible by law.\n12. Construction of Agreement.\nA. No Employment Rights. This Agreement does not grant or extend to Employee any rights to employment by the Company. The\nEmployee remains an employee at will, meaning that either Employer or the Company may terminate the employment of Employee,\nwith cause or without cause and with or without notice. This Agreement shall survive the termination of the employment of Employee\nand the terms and provisions of this Agreement shall remain enforceable in accordance with its terms.\nConfidential and Proprietary Property of InfrastruX Group.\n3\nB. Other Claims and Defenses. The parties agree that the existence of any claims, defenses of obligations between the parties not\ndescribed the in Agreement shall not affect the enforceability of this Agreement or the remedies thereunder.\nC. Successors and Assigns. The parties agree that this Agreement shall be automatically assigned to any successor of the Company,\nunless specifically provided otherwise in a writing executed by the President of the Company.\nD. Entire Understanding; Modification. This Agreement contains the entire understanding between the parties only as to the subjects\nset forth herein, and supersedes any prior understandings and agreements, written or oral, among them respecting the subject matter\nherein. This Agreement may not be modified, except by a writing signed by Employee and the President of the Company.\n13. Employee's Representation Regarding Other Agreements. Employee represents and warrants that he/she is not a party to or\notherwise subject to or bound by the terms of any contract, agreement or understanding which in an manner would limit or otherwise\naffect his/her ability to perform his/her duties as an employee of the Company, including without limitation any contract, agreement or\nunderstanding containing terms and provisions similar in any manner to those contained in Section 3 of this Agreement. Employee\nfurther represents and warrants that his/her employment with the Company will not require him/her to disclose or use any confidential\ninformation belonging to prior employers or other persons, or entities.\n14. Certificate of Understanding. Employee certifies that Employee received a copy of this Agreement for review and study before being\nasked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor of\nEmployee's choice; understands Employee's obligations under the Agreement; and signs this Agreement freely and voluntarily, and\nwithout any coercion from any person.\nEmployee\nCompany\nSignature:\n/s/ John R. Higgins\nSignature:\n/s/ Richard Schwartz\nPrint Name:\nJohn R. Higgins\nPrint Name:\nRichard Schwartz\nDate:\n5/5/2006\nTitle:\nCOO\nDate:\n5/5/2006\nConfidential and Proprietary Property of InfrastruX Group.\n4	EX-10.18 17 dex1018.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE - JOHN HIGGINS\nExhibit 10.18\nLOGO\nNON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE AGREEMENT\nThis Agreement is made this 5 day of May, 2006 by and between InfrastruX Group (hereinafter the “Company”, a term which includes the\nCompany’s successors and assigns) and JOHN RANDELL HIGGINS (hereinafter “Employee”) as a condition of, and in consideration of,\nEmployees’s employment or continued employment by the Company. By the mutual promises and covenants made herein, the undersigned parties\nagree as follows:\n1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer (c) will\nobtain valuable, continuing training; (d) may be introduced to the Company’s customers and/or prospective customers; (e) will be\nprovided with support and be permitted to utilize the Company’s goodwill and reputation in the performance of his or her duties; (f) will\nobtain and have access to the Company’s confidential, proprietary, customer, or trade secret information, including, but not limited to,\nnon-public information regarding the Company’s silicone fluid injection process; and (g) will have the use and enjoyment of the\nCompany’s materials, equipment, facilities and overall research and business endeavors in connection with the performance of his or her\nduties.\n2. No Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee’s best skill and effort for the term\nof Employee’s employment with the Company. Employee agrees that for the term of Employee’s employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company except with the written\nauthorization of the Company’s President. In connection with this provision, Employee agrees not to sell outside products or services to\nthe Company’s employees or customers during the term of Employee’s employment with the Company.\n3. Non-Competition Covenant. Employee will not, during the term of Employee’s employment with the Company and for a period of one\n(1) year thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, operations, supervisory, or consulting nature, whether with or without remuneration, to any\nbusiness or activity involved in the electric, gas, large bore directional drilling, environmental services, petrochemical\ntelecommunication, cable restoration/cable life extension, and/or cable replacement industry, if such business or activity is in competition\nor is preparing to be in completion with any business, research or endeavor of the Company. The scope of competitive activities\nprohibited by this Agreement shall be limited to those activities of the type conducted, authorized, offered, or provided by Employee to\nthe Company customers with whom the Employee had contact with during the course of Employee’s employment with the Company\nduring the twelve-month period prior to the date of termination of Employee’s employment with the Company, and involving products\nand/or technology similar to those handled, created, sold or distributed by the Company, and/or services of any executive, marketing,\nadministrative, operations, supervisory, or consulting nature similar to those provided by the Company during the twelve-month period\nprior to the date of termination of Employee’s employment with the Company.\n4. Inventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries related in\nany manner to the Company’s business and conceived by Employee or developed, in whole or in part, by Employee during working\nhours or on the property of the Company. Such ideas, inventions and discoveries will be the property of the Company, and the Company\nwill have the right to any patents, trademarks, or copyrights that may be issued with respect thereto. Employee hereby\nConfidential and Proprietary Property of InfrastruX Group.\n1\nth\nagrees to assign to the Company, or its nominee, all right, title and interest in such ideas, inventions, discoveries, patient, trademark and\ncopyright application, patents, trademarks and copyrights and assignments thereof, and will do such things as the Company may require\nto establish and protect its ownership and to effectuate the foregoing, either during Employee’s employment or thereafter. Excluded from\nthe operation of this provision are those ideas, inventions, and discoveries, patented and unpatented, of Employee’s that were made prior\nto Employee’s employment by the Company and that have been described in writing by Employee and acknowledged in writing by the\nPresident of the Company.\nNOTICE: Notwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate Employee to assign\nor offer to assign to the Company any of Employee’s rights in an invention for which no equipment, supplies, facilities or trade secret\ninformation of the Company was used and which was developed entirely on Employee’s own time, unless (a) the invention relates (i)\ndirectly to the business of the Company or (ii) to the Company’s actual or demonstrably anticipated research or development or (b) the\ninvention results from any work performed by Employee for the Company. This satisfies the written notice and other requirements of\nRCW 49.44.140.\n5. Nondisclosure; Confidentiality. During Employee’s employment with the Company and after such employment terminates, Employee\nwill treat as confidential and proprietary to the Company any Confidential information, whether in tangible or intangible form, received\nor acquired by Employee in the course of performance of Employee’s employment and relating to the business affairs, customers and\nprospective customers, finances, equipment, products, methods, processes, design and engineering data, know-how, or technology of the\nCompany. Employee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated\nto protect confidential information for the benefit of any customer, client, or other third party.\n“Confidential Information” means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company, and includes, but is not limited to: the Company’s pricing and marketing\nstrategies and characteristics; profit margins and other financial information; methods of operations and sales; sources of supplies;\ninformation regarding customers or prospective customers such as names, contact persons, needs and requirements, and contract renewal\ndates; technical information and-know-how; and any other information relating to the Company’s business that is treated by the\nCompany as confidential. For purposes of this Agreement, information shall not lose its character as confidential if it is known to the\npublic or to any competitor solely by virtue of unauthorized or bad faith disclosure or publication of the information.\n6. Residuals. The terms of confidentiality under this Agreement shall not be construed to limit Employee’s right to independently develop\nor acquire products without use of the Company’s Confidential Information provided such development or acquisition does not violate\nthis Agreement. However, Employee shall not be free to use for any purpose the residuals resulting from access to or work with the\nConfidential Information of the Company. The term “residuals” means (a) Confidential Information In intangible form that is retained in\nmemory by persons who have had access to the Confidential information, and (b) information in any form that is derived from or based\non employee’s access to Confidential information.\n7. Nonsolicitation of Customers. Employee agrees that for a period of one (1) year following the termination of Employee’s employment,\nEmployee shall not directly, or indirectly by assisting others, contact or do business with any customer or prospective customer of the\nCompany for purposes of providing products or services that are competitive with those provided, or being studied or developed, by the\nCompany. This covenant applies to those customers and the related entities of those customers to which the Company sold products or\nservices with whom the Employee had contact at any time during the twelve-month period prior to the date of termination of Employee’s\nemployment with the Company, and those prospective customers with whom the Employee had contact with which the Company\nactively pursued sates or the provision of services at any time during the twelve-month period prior to the date of termination of\nEmployee’s employment with the Company.\nConfidential and Proprietary Property of InfrastruX Group.\n2\n8. Nonsolicitation of Employees. Employee agrees that for a period of one (1) year following the termination of Employee’s employment,\nEmployee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other employee or former\nemployee of the Company.\n9. Return of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials, and all copies thereof, that relate to the Company’s business and were made or compiled by Employee at\nany time or were in Employee’s possession in the course of or incident to Employee’s employment. Employee agrees that all such\nproperty, including any and all copies, is the property of the Company, held by Employee in trust solely for the benefit of the Company,\nand will be delivered to the Company upon termination of the Employee’s employment or at any other time upon request by the\nCompany. It is specifically agreed that any documents, card files, notebooks, rolodexes, or computer printouts containing confidential\ncustomer information are the property of the Company regardless of who prepared or assembled the information.\n10. Enforcement\nA. Reasonableness of Restrictions. Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not\nunreasonably impair Employee’s ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief. Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement.\nC. Extension of Covenants. During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\nD. Survival of Covenants. The obligations of Employee pursuant to Sections 3 – 9 of this Agreement shall survive the termination of\nthis Agreement and of Employee’s employment with the Company.\nE. Attorneys’ Fees. Employee agrees to pay the Company any attorney’s fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nF. Choice of Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Washington to the maximum\nextent permissible under law. Employee irrevocably consents to the jurisdiction and venue of the federal and state courts located at King\nCounty, Washington with respect to any dispute arising out of or in connection with this Agreement, and agrees not to commence or prosecute\nany action or proceeding arising out of or related to this Agreement other than in the aforementioned courts.\n11. Judicial Modification. The parties agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent permissible by law.\n12. Construction of Agreement.\nA. No Employment Rights. This Agreement does not grant or extend to Employee any rights to employment by the Company. The\nEmployee remains an employee at will, meaning that either Employer or the Company may terminate the employment of Employee,\nwith cause or without cause and with or without notice. This Agreement shall survive the termination of the employment of Employee\nand the terms and provisions of this Agreement shall remain enforceable in accordance with its terms.\nConfidential and Proprietary Property of InfrastruX Group.\n3\nB. Other Claims and Defenses. The parties agree that the existence of any claims, defenses of obligations between the parties not\ndescribed the in Agreement shall not affect the enforceability of this Agreement or the remedies thereunder.\nC. Successors and Assigns. The parties agree that this Agreement shall be automatically assigned to any successor of the Company,\nunless specifically provided otherwise in a writing executed by the President of the Company.\nD. Entire Understanding; Modification. This Agreement contains the entire understanding between the parties only as to the subjects\nset forth herein, and supersedes any prior understandings and agreements, written or oral, among them respecting the subject matter\nherein. This Agreement may not be modified, except by a writing signed by Employee and the President of the Company.\n13. Employee’s Representation Regarding Other Agreements. Employee represents and warrants that he/she is not a party to or\notherwise subject to or bound by the terms of any contract, agreement or understanding which in an manner would limit or otherwise\naffect his/her ability to perform his/her duties as an employee of the Company, including without limitation any contract, agreement or\nunderstanding containing terms and provisions similar in any manner to those contained in Section 3 of this Agreement. Employee\nfurther represents and warrants that his/her employment with the Company will not require him/her to disclose or use any confidential\ninformation belonging to prior employers or other persons, or entities.\n14. Certificate of Understanding. Employee certifies that Employee received a copy of this Agreement for review and study before being\nasked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor of\nEmployee’s choice; understands Employee’s obligations under the Agreement; and signs this Agreement freely and voluntarily, and\nwithout any coercion from any person.\nEmployee\nCompany\nSignature:\n/s/ John R. Higgins\nSignature:\n/s/ Richard Schwartz\nPrint Name: John R. Higgins\nPrint Name: Richard Schwartz\nDate:\n5/5/2006\nTitle:\nCOO\nDate:\n5/5/2006\nConfidential and Proprietary Property of InfrastruX Group.\n4
2676f4f5023b16823188032a01a73002.pdf	effective_date jurisdiction party term	EX-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this “Agreement”) is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the “Maxwell”), and Jones Apparel Group, Inc. (“Jones”), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a “Transaction”), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each “party” shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party’s directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party’s Representatives (herein collectively referred to as the\n“Evaluation Material”) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter set\nforth.\nAccordingly, each party hereby agrees that:\n1. The term “Evaluation Material” shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term “Evaluation Material” shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party’s possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S .L ., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\n2. The Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, “Providers”)) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party’s Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\n3. Except as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party’s\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\n2\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\n4. If either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\n5. If either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives’ possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party’s\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\n6. Each party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party’s Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n7. For a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly or\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\n8. Each party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\n9. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. Money damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties.\n11. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy or\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n4\n12. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\n13. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\n14. This Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\n15. This Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\n16. Nothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy:\n/s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy:\n/s/ IRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary\n6	EX-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this “Agreement”) is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the “Maxwell”), and Jones Apparel Group, Inc. (“Jones”), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a “Transaction”), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each “party” shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party’s directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party’s Representatives (herein collectively referred to as the\n“Evaluation Material”) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter set\nforth.\nAccordingly, each party hereby agrees that:\n1. The term “Evaluation Material” shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term “Evaluation Material” shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party’s possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S.L., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\nThe Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, “Providers”)) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party’s Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\nExcept as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party’s\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\nIf either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\nIf either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives’ possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party’s\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\nEach party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party’s Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n10. 11. For a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly or\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\nEach party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\nNo failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\nMoney damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties.\nThis Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy or\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n12. 13. 14. 15. 16. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\nThis Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\nThis Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\nNothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy: /s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy: /s/ IRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary	X-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this "Agreement") is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the "Maxwell"), and Jones Apparel Group, Inc. ("Jones"), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a "Transaction"), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each "party" shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party's directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party's Representatives (herein collectively referred to as the\n"Evaluation Material") in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter\nset\nforth.\nAccordingly, each party hereby agrees that:\n1.\nThe term "Evaluation Material" shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term "Evaluation Material" shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party's possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S.L., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\n2.\nThe Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, "Providers")) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party's Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\n3.\nExcept as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party's\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term "person" shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\n2\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the "Exchange\nAct"), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\n4.\nIf either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\n5.\nIf either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives' possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party's\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\n6.\nEach party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party's Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n7.\nFor a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly\nor\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\n8.\nEach party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\n9.\nNo failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. Money damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties\n11. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy\nor\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n4\n12. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\n13.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\n14.\nThis Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\n15.\nThis Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\n16.\nNothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy:\n/s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy:\n/s/\nIRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary\n6	EX-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this “Agreement”) is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the “Maxwell”), and Jones Apparel Group, Inc. (“Jones”), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a “Transaction”), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each “party” shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party’s directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party’s Representatives (herein collectively referred to as the\n“Evaluation Material”) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter set\nforth.\nAccordingly, each party hereby agrees that:\n1. The term “Evaluation Material” shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term “Evaluation Material” shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party’s possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S .L ., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\n2. The Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, “Providers”)) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party’s Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\n3. Except as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party’s\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\n2\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\n4. If either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\n5. If either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives’ possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party’s\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\n6. Each party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party’s Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n7. For a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly or\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\n8. Each party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\n9. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. Money damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties.\n11. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy or\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n4\n12. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\n13. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\n14. This Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\n15. This Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\n16. Nothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy:\n/s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy:\n/s/ IRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary\n6
269af0222420f4f34e96ef9968b5027f.pdf	effective_date jurisdiction party term	EX-10.16 10 dex1016.htm CONFIDENTIALITY AND BUSINESS PROTECTION AGREEMENT\nExhibit 10.16\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between Michael A. Lynch\n(“Executive”) and Cardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of September 29, 2008. It is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement effective as of September 29, 2008 between the parties and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive’s ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9 (a) below are accurate and necessary because (i) this Agreement Is entered\ninto in the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the\nCompany, which has operations worldwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law\nprovides certainty to the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not\nviolate any fundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the “Cardinal Group”), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive’s employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive’s\nviolation of this Agreement) (“Confidential Information”). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential information at any time during or after the Executive’s employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the\nExecutive’s employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of the Executive’s employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a “Solicitation”): (I) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent, consultant or independent contractor) any person who is or, at any time\nduring the previous twelve months was, an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease their relationship with the Cardinal Group for any reason. A\n“Solicitation” does not include any recruitment of employees within or for the Cardinal Group. The “Restricted Period” means the period of\nExecutive’s employment with the Cardinal Group and the additional period ending twenty-four months after the Executive’s date of termination of\nemployment or date of retirement, as applicable.\n4. No Competition — Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive’s employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\n5. No Competition — Employment by Competitor. During the Restricted Period, the Executive shall not invest in (other than in a publicly\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a “Competitor”).\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the\n2\nExecutive’s employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the circumstances\nof the termination of the Executive’s employment, or about the Cardinal Group or its trustees, directors, officers, security holders, partners, agents or\nformer or current employees and directors, except as may be required by a court or governmental body,\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive’s employment with the Company,\nincluding but not limited to any litigation that may be pending or arise after such termination of employment, Further, the Executive agrees to notify\nthe Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company shall\nnot unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive, taking\ninto account the Executive’s business and personal affairs, and shall compensate the Executive for any lost wages or expenses associated with such\ncooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive’s initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive’s employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property, The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive’s entire right, title and interest in and to any such discoveries and Improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or Improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement, The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the\n3\ncovenants of this Agreement; and (C) remedies at law (such as monetary damages) for any breach of the Executive’s obligations under this\nAgreement would be inadequate. The Executive therefore agrees and consents that if the Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of, any other right or remedy\nthat may be available to it) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting any bond or other\nsecurity and without the necessity of proof of actual damage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive:\nAt the most recent address on file for the Executive at the Company.\nIf to the Company:\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n4\n(d) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\n/s/ Michael Lynch\nMichael A. Lynch\nExecution Date: 10/28, 2008\nCARDINAL HEALTH, INC.\n/s/ George S. Barrett\nBy: George S. Barrett\nIts: Vice Chairman and CEO, HSCS\nExecution Date:\n, 2008\n5	EX-10.16 10 dex1016.htm CONFIDENTIALITY AND BUSINESS PROTECTION AGREEMENT\nExhibit 10.16\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between Michael A. Lynch\n(“Executive”) and Cardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of September 29, 2008. It is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement effective as of September 29, 2008 between the parties and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive’s ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9 (a) below are accurate and necessary because (i) this Agreement Is entered\ninto in the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the\nCompany, which has operations worldwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law\nprovides certainty to the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not\nviolate any fundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the “Cardinal Group™), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive’s employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive’s\nviolation of this Agreement) (“Confidential Information”). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential information at any time during or after the Executive’s employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the\nExecutive’s employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of the Executive’s employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a “Solicitation): (I) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent, consultant or independent contractor) any person who is or, at any time\nduring the previous twelve months was, an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease their relationship with the Cardinal Group for any reason. A\n“Solicitation” does not include any recruitment of employees within or for the Cardinal Group. The “Restricted Period” means the period of\nExecutive’s employment with the Cardinal Group and the additional period ending twenty-four months after the Executive’s date of termination of\nemployment or date of retirement, as applicable.\n4. No Competition — Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive’s employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a “Competitor”).\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the\nExecutive’s employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the circumstances\nof the termination of the Executive’s employment, or about the Cardinal Group or its trustees, directors, officers, security holders, partners, agents or\nformer or current employees and directors, except as may be required by a court or governmental body,\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive’s employment with the Company,\nincluding but not limited to any litigation that may be pending or arise after such termination of employment, Further, the Executive agrees to notify\nthe Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company shall\nnot unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive, taking\ninto account the Executive’s business and personal affairs, and shall compensate the Executive for any lost wages or expenses associated with such\ncooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive’s initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive’s employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property, The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive’s entire right, title and interest in and to any such discoveries and Improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or Improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement, The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the\n \n3\ncovenants of this Agreement; and (C) remedies at law (such as monetary damages) for any breach of the Executive’s obligations under this\nAgreement would be inadequate. The Executive therefore agrees and consents that if the Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of, any other right or remedy\nthat may be available to it) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting any bond or other\nsecurity and without the necessity of proof of actual damage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: At the most recent address on file for the Executive at the Company.\nIf to the Company: Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n(d) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\n/s/ Michael Lynch\nMichael A. Lynch\nExecution Date: 10/28, 2008\nCARDINAL HEALTH, INC.\n/s/ George S. Barrett\nBy: George S. Barrett\nIts: Vice Chairman and CEO, HSCS\nExecution Date: , 2008	EX-10.16 10 dex 1016.htm CONFIDENTIALITY AND BUSINESS PROTECTION AGREEMENT\nExhibit 10.16\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement ("Agreement") is hereby entered into by and between Michael A. Lynch\n("Executive") and Cardinal Health, Inc., an Ohio Corporation (the "Company") effective as of September 29, 2008. It is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement effective as of September 29, 2008 between the parties and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive's ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9 (a) below are accurate and necessary because (i) this Agreement Is entered\ninto in the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the\nCompany, which has operations worldwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law\nprovides certainty to the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not\nviolate any fundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the "Cardinal Group"), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive's employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive's\nviolation of this Agreement) ("Confidential Information"). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential information at any time during or after the Executive's employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the\nExecutive's employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of the Executive's employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a "Solicitation"): (I) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent, consultant or independent contractor) any person who is or, at any time\nduring the previous twelve months was, an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease their relationship with the Cardinal Group for any reason. A\n"Solicitation" does not include any recruitment of employees within or for the Cardinal Group. The "Restricted Period" means the period of\nExecutive's employment with the Cardinal Group and the additional period ending twenty-four months after the Executive's date of termination of\nemployment or date of retirement as applicable.\n4. No Competition - Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive's employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\n5. No Competition - Employment by Competitor. During the Restricted Period, the Executive shall not invest in (other than in a publicly\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a "Competitor").\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the\n2\nExecutive's employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the circumstances\nof the termination of the Executive's employment, or about the Cardinal Group or its trustees, directors, officers, security holders, partners, agents or\nformer or current employees and directors, except as may be required by a court or governmental body,\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive's employment with the Company,\nincluding but not limited to any litigation that may be pending or arise after such termination of employment, Further, the Executive agrees to notify\nthe Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company shall\nnot unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive, taking\ninto account the Executive's business and personal affairs, and shall compensate the Executive for any lost wages or expenses associated with such\ncooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive's initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive's employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property, The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive's entire right, title and interest in and to any such discoveries and Improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin\nthe United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or Improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the\n3\ncovenants of this Agreement; and (C) remedies at law (such as monetary damages) for any breach of the Executive's obligations under this\nAgreement would be inadequate. The Executive therefore agrees and consents that if the Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of, any other right or remedy\nthat may be available to it) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting any bond or other\nsecurity and without the necessity of proof of actual damage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive:\nAt the most recent address on file for the Executive at the Company.\nIf to the Company:\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n4\n(d) The Executive's or the Company's failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\n/s/ Michael Lynch\nMichael A. Lynch\nExecution Date: 10/28, 2008\nCARDINAL HEALTH, INC.\n/s/ George S. Barrett\nBy: George S. Barrett\nIts: Vice Chairman and CEO, HSCS\nExecution Date:\n, 2008\n5	EX-10.16 10 dex1016.htm CONFIDENTIALITY AND BUSINESS PROTECTION AGREEMENT\nExhibit 10.16\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between Michael A. Lynch\n(“Executive”) and Cardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of September 29, 2008. It is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement effective as of September 29, 2008 between the parties and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive’s ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9 (a) below are accurate and necessary because (i) this Agreement Is entered\ninto in the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the\nCompany, which has operations worldwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law\nprovides certainty to the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not\nviolate any fundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the “Cardinal Group”), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive’s employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive’s\nviolation of this Agreement) (“Confidential Information”). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential information at any time during or after the Executive’s employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the\nExecutive’s employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of the Executive’s employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a “Solicitation”): (I) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent, consultant or independent contractor) any person who is or, at any time\nduring the previous twelve months was, an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease their relationship with the Cardinal Group for any reason. A\n“Solicitation” does not include any recruitment of employees within or for the Cardinal Group. The “Restricted Period” means the period of\nExecutive’s employment with the Cardinal Group and the additional period ending twenty-four months after the Executive’s date of termination of\nemployment or date of retirement, as applicable.\n4. No Competition — Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive’s employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\n5. No Competition — Employment by Competitor. During the Restricted Period, the Executive shall not invest in (other than in a publicly\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a “Competitor”).\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the\n2\nExecutive’s employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the circumstances\nof the termination of the Executive’s employment, or about the Cardinal Group or its trustees, directors, officers, security holders, partners, agents or\nformer or current employees and directors, except as may be required by a court or governmental body,\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive’s employment with the Company,\nincluding but not limited to any litigation that may be pending or arise after such termination of employment, Further, the Executive agrees to notify\nthe Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company shall\nnot unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive, taking\ninto account the Executive’s business and personal affairs, and shall compensate the Executive for any lost wages or expenses associated with such\ncooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive’s initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive’s employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property, The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive’s entire right, title and interest in and to any such discoveries and Improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or Improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement, The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the\n3\ncovenants of this Agreement; and (C) remedies at law (such as monetary damages) for any breach of the Executive’s obligations under this\nAgreement would be inadequate. The Executive therefore agrees and consents that if the Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of, any other right or remedy\nthat may be available to it) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting any bond or other\nsecurity and without the necessity of proof of actual damage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive:\nAt the most recent address on file for the Executive at the Company.\nIf to the Company:\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n4\n(d) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\n/s/ Michael Lynch\nMichael A. Lynch\nExecution Date: 10/28, 2008\nCARDINAL HEALTH, INC.\n/s/ George S. Barrett\nBy: George S. Barrett\nIts: Vice Chairman and CEO, HSCS\nExecution Date:\n, 2008\n5
27399d0f17deeb8124b3ad8f3e4bb723.pdf	jurisdiction party term	Exhibit 10.2\nNon–Competition, Non–Solicitation, and Confidentiality Agreement\nThis Non–Competition, Non–Solicitation, and Confidentiality Agreement, dated as of\n, 2019 (this “Agreement”), is made by\nand among Glacier Bancorp, Inc. (“GBCI”), Glacier Bank, a wholly owned subsidiary of GBCI (“Glacier Bank”), Heritage Bancorp\n(“HB”), Heritage Bank of Nevada, a wholly owned subsidiary of HB (“Heritage Bank”), and the undersigned, each of whom is a\ndirector of HB and Heritage Bank (each, a “Director”).\nRecitals\nA. HB and Heritage Bank have entered into a Plan and Agreement of Merger, dated April 3, 2019 (the “Merger Agreement”), with\nGBCI and Glacier Bank. Under the terms of the Merger Agreement, HB will merge with and into GBCI, Heritage Bank will\nmerge with and into Glacier Bank (collectively, the “Merger”), and the former branches of Heritage Bank will operate as a\ndivision of Glacier Bank (the “Division”).\nB. The parties to this Agreement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director’s service as a post-Merger member of the Division’s\nadvisory board (the “Advisory Board”).\nAgreement\nIn consideration of the parties’ performance under the Merger Agreement, each Director agrees as follows:\n1. Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger\nAgreement. The following definitions also apply to this Agreement:\na. A “Competing Business” means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb. The “Covered Area” means Carson City, Nevada; Douglas County, Nevada; and Washoe County, Nevada.\nc. The “Term” means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two years after the Effective Date or (ii) if applicable, one year following the termination of any service\nby such Director as a post-Merger member of the Advisory Board.\n-1-\n2. Incorporation of Restrictive Covenants. Except as provided in Section 5 or 6 of this Agreement, each Director agrees to\ncomply with the restrictive covenants set forth in Section 3.a. and Section 3.b . of that certain Change in Control Agreement (each\na “Change in Control Agreement”) entered into by and among such Director, HB, and Heritage Bank for the period of time\nbeginning on the Effective Date and ending on the later to occur of (a) the expiration of the restrictive period with respect to such\nrestrictive covenants as set forth in Section 3.d . of such Director’s Change in Control Agreement or (b) if applicable, one year\nfollowing the termination of any service by such Director as a post-Merger member of the Advisory Board. Each Director also\nagrees that the restrictive covenants set forth in Section 3.a. and Section 3.b . of the Change in Control Agreement are hereby\namended to apply within the Covered Area. A copy of each such Change in Control Agreement will be retained by GBCI.\n3. Non-Solicitation. In addition, during the Term, each Director agrees not to, directly or indirectly, either for himself or herself or\nfor any other person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI’s subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of GBCI or GBCI’s subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers’, business partners’ or joint venturers’ business or cease doing business with\nGBCI or GBCI’s subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween GBCI or GBCI’s subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and internet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\n4. Confidential Information.\na. Confidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of HB, Heritage Bank, GBCI or GBCI’s subsidiaries, divisions, or affiliates\nobtained by the Director while serving as a director of HB and/or Heritage Bank (or, if applicable, as a post-Merger member\nof the Advisory Board) to any person or use any Confidential Information for his or her own benefit or for the benefit of any\nother person. For purposes of this Agreement, “Confidential Information” includes all secrets and other confidential\ninformation, knowledge, know-how, sales, financial information, customers, lists of customers and prospective customers,\nbroker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals relating to the same, with\nrespect to HB, Heritage Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates. Notwithstanding the foregoing,\n“Confidential Information” does not include (i) information that is or becomes generally available to the public other than\nas a result of an unauthorized disclosure by the Director, (ii) information that was in the Director’s possession prior to\nserving as a director of HB and/or Heritage Bank or\n-2-\ninformation received by the Director from another person without any limitations on disclosure, but only if the Director had\nno reason to believe the other person was prohibited from using or disclosing the information by contractual or fiduciary\nobligation, or (iii) information that was independently developed by the Director without using any Confidential\nInformation of HB, Heritage Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates.\nb. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S .C . § 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nc. Legally Required Disclosures. Notwithstanding any provision of this Agreement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from GBCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\n5. Requests for Consent. During the Term, prior to engaging in any manner in an activity that would result in a violation of the\nrestrictive covenants set forth in Section 3.a or 3.b . of the Change in Control Agreement or Section 3 of this Agreement, a\nDirector may request in writing that GBCI waive the restrictions incorporated into or set forth in this Agreement with respect to\na particular proposed activity. If GBCI determines, in its sole discretion, that such activity is acceptable, GBCI may provide such\nDirector with written consent to engage in such activity.\n-3-\n6. Passive Interest. Notwithstanding anything to the contrary contained herein, nothing in this Agreement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\n7. Miscellaneous.\na. Entire Agreement. This Agreement (including each Director’s Change in Control Agreement) constitutes the entire\nunderstanding and agreement between the parties concerning its subject matter and supersedes and terminates all prior\nagreements, correspondence, representations, and/or understandings between the parties relating to its subject matter.\nb. Individual Obligations. The obligations of each of the signatories to this Agreement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This Agreement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nc. Severability. If any provision of this Agreement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this Agreement, will not be affected.\nd. Reformation. If any court determines that the obligations and restrictions set forth in this Agreement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\ne. Expenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\nf. Amendments; Waivers. Any provision of this Agreement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\n-4-\ng. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of\nNevada, except to the extent that federal law may govern certain matters. The parties must bring any legal proceeding\narising out of this Agreement in the state courts situated in Kalispell, Montana or the federal district courts of the Missoula\nDivision for the State of Montana. Each party consents to and submits to the jurisdiction of any such court.\nh. Remedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not alternative.\ni. Counterparts. This Agreement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n-5-\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC.\nBy:Randall M. Chesler\nIts:President and CEO\nGLACIER BANK\nBy:Randall M. Chesler\nIts:President and CEO\nHERITAGE BANCORP\nBy:Stanley Wilmoth\nIts:President and CEO\nHERITAGE BANK OF\nNEVADA\nBy:Stanley Wilmoth\nIts:President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non–Competition, Non–Solicitation, and Confidentiality Agreement]	Exhibit 10.2\nNon- C ompetition, Non- Solicitation, and C onfidentiality Agreement\nThis Non—Competition, Non— Solicitation, and Confidentiality Agreement, dated as of , 2019 (this ”Agreement"), is made by\nand among Glacier Bancorp, Inc. (”G BCI”), Glacier Bank, a wholly owned subsidiary of GBCI (”G lacier Bank"), Heritage Bancorp\n(”HB"), Heritage Bank of Nevada, a wholly owned subsidiary of HB (”Heritage Bank”), and the undersigned, each of whom is a\ndirector of HB and Heritage Bank (each, a ”Director").\nRecitals\nA. HB and Heritage Bank have entered into a Plan and A greement of Merger, dated April 3, 2019 (the ”Merger Agreement”), with\nGBCI and Glacier Bank. Under the terms of the Merger Agreement, HB will merge with and into GBCI, Heritage Bank will\nmerge with and into Glacier Bank (collectively, the ”M erger"), and the former branches of Heritage Bank will operate as a\ndivision of Glacier B ank (the ”Division").\nB. The parties to this Agreement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director’ s service as a post-Merger member of the Division’ s\nadvisory board (the ”Advisory Board”).\nAgreement\nIn consideration of the parties' performance under the Merger Agreement, each Director agrees as follows:\n1. Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger\nAgreement. The following definitions also apply to this Agreement:\na. A ”Competing Business” means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb. The ”Covered Area” means Carson City, Nevada; D ouglas County, Nevada; and Washoe County, Nevada.\nc. The ”Term” means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two years after the Effective D ate or (ii) if applicable, one year following the termination of any service\nby such Director as a post-Merger member of the Advisory Board.\n \nIncorporation of Restrictive Covenants. Except as provided in Section 5 or 6 of this Agreement, each Director agrees to\ncomply with the restrictive covenants set forth in Section 3.a. and Section 3b. of that certain Change in Control Agreement (each\na ”C hange in Control Agreement") entered into by and among such Director, HB, and Heritage Bank for the period of time\nbeginning on the Effective Date and ending on the later to occur of (a) the expiration of the restrictive period with respect to such\nrestrictive covenants as set forth in Section 3d. of such Director’ s Change in Control Agreement or (b) if applicable, one year\nfollowing the termination of any service by such Director as a post-Merger member of the Advisory Board. Each Director also\nagrees that the restrictive covenants set forth in Section 3.a. and Section 3b. of the Change in Control Agreement are hereby\namended to apply within the Covered Area. A copy of each such Change in Control Agreement will be retained by GBCI.\nNon-Solicitation. In addition, during the Term, each Director agrees not to, directly or indirectly, either for himself or herself or\nfor any other person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI’ s subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of G B CI or G B CI’ s subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers’, business partners’ or joint venturers’ business or cease doing business with\nG B CI or G B CI’ s subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween G B CI or G B CI’ s subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and intemet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\nC onfidential Information.\na. Confidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of HB, Heritage B ank, G B CI or G B CI’ s subsidiaries, divisions, or affiliates\nobtained by the Director while serving as a director of HB and/or Heritage Bank (or, if applicable, as a post-Merger member\nof the Advisory Board) to any person or use any Confidential Information for his or her own benefit or for the benefit of any\nother person. For purposes of this A greement, ”C onfidential Information” includes all secrets and other confidential\ninformation, knowledge, know-how, sales, financial information, customers, lists of customers and prospective customers,\nbroker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals relating to the same, with\nrespect to HB, Heritage Bank, G BCI, or G B CI’ s subsidiaries, divisions, or affiliates. Notwithstanding the foregoing,\n”C onfidential Information” does not include (i) information that is or becomes generally available to the public other than\nas a result of an unauthorized disclosure by the Director, (ii) information that was in the Director’ s possession prior to\nserving as a director of HB and/or Heritage Bank or\nC.  \ninformation received by the Director from another person without any limitations on disclosure, but only if the Director had\nno reason to believe the other person was prohibited from using or disclosing the information by contractual or fiduciary\nobligation, or (iii) information that was independently developed by the Director without using any Confidential\nInformation of HB, Heritage B ank, G B CI, or G B CI’ 5 subsidiaries, divisions, or affiliates.\nDefend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nLegally Required Disclosures. Notwithstanding any provision of this Agreement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from G BCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\nRequests for Consent. During the Term, prior to engaging in any manner in an activity that would result in a violation of the restrictive covenants set forth in Section 3.a or 3b. of the Change in Control Agreement or Section 3 of this Agreement, a Director may request in writing that GBCI waive the restrictions incorporated into or set forth in this Agreement with respect to a particular proposed activity. If GBCI determines, in its sole discretion, that such activity is acceptable, GBCI may provide such Director with written consent to engage in such activity.\f \nPassive Interest. Notwithstanding anything to the contrary contained herein, nothing in this Agreement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\nMiscellaneous.\na. Entire Agreement. This Agreement (including each Director’ s Change in Control Agreement) constitutes the entire\nunderstanding and agreement between the parties concerning its subject matter and supersedes and terminates all prior\nagreements, correspondence, representations, and/or understandings between the parties relating to its subject matter.\nb. Individual Obligations. The obligations of each of the signatories to this A greement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This Agreement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nc. Severabilily. If any provision of this Agreement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this A greement, will not be affected.\nd. Reformation. If any court determines that the obligations and restrictions set forth in this Agreement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\ne. Expenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\nf. Amendments; Waivers. Any provision of this A greement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\ng. h. i.\n \nGoverning Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of\nNevada, except to the extent that federal law may govern certain matters. The parties must bring any legal proceeding\narising out of this Agreement in the state courts situated in Kalispell, Montana or the federal district courts of the Missoula\nDivision for the State of Montana. Each party consents to and submits to the jurisdiction of any such court.\nRemedies. Any breach of this A greement by a Director will entitle G B Cl and/or Glacier B ank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not alternative.\nCountemarts. This A greement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n \nIN WITNESS WHEREOE, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC. HERITAGE BANCORP\nByzKandaII IVI. Ches er By:Sfin ey W1 moth\nIts:President and CEO Its:President and CEO\nGLACIER BANK HERITAGE BANK OF\nNEVADA\nByzKandaII IVI. Ches er\nIts:President and CEO By:Sfin ey W1 moth\nIts:President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\n \nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non—Competition, Non— Solicitation, and Confidentiality Agreement]	Exhibit 10.2\nNon-Competition on-Solicitation, and Confidentiality Agreement\nThis Non-Competition, Non-Solicitation, and Confidentiality A greement, dated as of\n2019 (this "Agreement"), is made by\nand among Glacier Bancorp, Inc. ("GBCI"), Glacier Bank, a wholly owned subsidiary of GBCI ("Glacier Bank"), Heritage Bancorp\n("HB"), Heritage Bank of Nevada, a wholly owned subsidiary of HB ("Heritage Bank"), and the undersigned, each of whom is a\ndirector of HB and Heritage Bank (each, a "Director").\nRecitals\nA. HB and Heritage Bank have entered into a Plan and A greement of Merger, dated A pril 3, 2019 (the "Merger Agreement"), with\nGBCI and Glacier Bank. Under the terms of the Merger greement, HB will merge with and into GBCI, Heritage Bank will\nmerge with and into Glacier Bank (collectively, the "Merger"), and the former branches of Heritage Bank will operate as a\ndivision of Glacier Bank (the "Division").\nB. The parties to this greement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantia way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director's service as a post: t-Merger member of the Division's\nadvisory board (the "Advisory Board").\nAgreement\nIn consideration of the parties' performance under the Merger A greement, each Director agrees as follows:\n1.\nDefinitions. Capitalized terms not defined in this A greement have the meaning assigned to those terms in the Merger\nA greement. The following definitions also apply to this Agreement:\na.\nA "Competing Business" means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb.\nThe "Covered Area" means Carson City, Nevada; Douglas County, Nevada; and Washoe County, Nevada.\nc.\nThe "Term" means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two years after the Effective D ate or (ii) if applicable, one year following the termination of any service\nby such Director as a st-Merger member of the Advisory Board.\n- 1\n2.\nIncorporation of Restrictive Covenants. Except as provided in Section 5 or 6 of this Agreement, each Director agrees to\ncomply with the restrictive covenants set forth in Section 3.a. and Section 3.b. of that certain Change in Control A greement (each\na "Change in Control Agreement") entered into by and among such Director, HB, and Heritage Bank for the period of time\nbeginning on the Effective Date and ending on the later to occur of (a) the expiration of the restrictive period with respect to such\nrestrictive covenants as set forth in Section 3.d of such Director's Change in Control A greement or (b) if applicable, one year\nfollowing the termination of any service by such Director as a st-Merger member of the dvisory Board. Each Director also\nagrees that the restrictive covenants set forth in Section 3.a. and Section 3.b. of the Change in Control greement are hereby\namended to apply within the Covered A rea. A copy of each such Change in Control A greement will be retained by GBCI.\n3. Non-Solicitation. In addition, during the Term, each Director agrees not to, directly or indirectly, either for himself or herself or\nfor any other person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI's subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of GBCI or GBCI's subsidiaries, divisions, or affiliates to transfer their business to\na\nCompeting Business or to reduce such customers' business partners' or joint venturers' business or cease doing business with\nGBCI or GBCI's subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween GBCI or GBCI's subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and internet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\n4.\nConfidential Information.\na.\nConfidentiality During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of HB, Heritage Bank, GBCI or GBCI's subsidiaries, divisions, or affiliates\nobtained by the Director while serving as a director of HB and/or Heritage Bank (or, if applicable, as a post-Merger member\nof the Advisory Board) to any person or use any Confidential Information for his or her own benefit or for the benefit of any\nother person. For purposes of this greement, "Confidential Information" includes all secrets and other confidential\ninformation, knowledge, know-how, sales, financial information, customers, lists of customers and prospective customers,\nbroker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals relating to the same, with\nrespect to HB, Heritage Bank, GBCI, or GBCI's subsidiaries divisions, or affiliates. Notwithstanding the foregoing,\n"C onfidential Information" does not include (i) information that is or becomes generally available to the public other than\nas a result of an unauthorized disclosure by the Director, (ii) information that was in the Director's possession prior to\nserving as a director of HB and/or Heritage Bank or\n2\ninformation received by the Director from another person without any limitations on disclosure, but only if the Director had\nno reason to believe the other person was prohibited from using or disclosing the information by contractual or fiduciary\nobligation, or (iii) information that was independently developed by the Director without using any Confidential\nInformation of HB, Heritage Bank, GBCI, or GBCI's subsidiaries, divisions, or affiliates.\nb.\nDefend Trade Secrets Act. Pursuant to the Defend Trade Secrets A ct of 2016, 18 U.S.C. S 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nC.\nLegally Required Disclosures. Notwithstanding any provision of this A greement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from GBCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\n5.\nRequests for Consent. During the Term, prior to engaging in any manner in an activity that would result in a violation of the\nrestrictive covenants set forth in Section 3.a or 3.b. of the Change in Control A greement or Section 3 of this A greement, a\nDirector may request in writing that GBCI waive the restrictions incorporated into or set forth in this A greement with respect to\na particular proposed activity. If GBCI determines, in its sole discretion, that such activity is acceptable, GBCI may provide such\nDirector with written consent to engage in such activity.\n3\n6.\nPassive Interest. Notwithstanding anything to the contrary contained herein, nothing in this A greement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\n7. Miscellaneous.\na. Entire A greement. This A greement (including each Director's Change in Control A greement) constitutes the entire\nunderstanding and agreement between the parties concerning its subject matter and supersedes and terminates all prior\nagreements, correspondence, representations, and/or understandings between the parties relating to its subject matter.\nb.\nIndividual Obligations. The obligations of each of the signatories to this A greement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This A greement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nC.\nSeverability. If any provision of this A greement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this Agreement, will not be affected.\nd.\nReformation. If any court determines that the obligations and restrictions set forth in this A greement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\ne.\nExpenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nA greement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\nf.\nA mendments; Waivers Any provision of this A greement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this A greement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\n4\ng. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of\nNevada, except to the extent that federal law may govern certain matters. The parties must bring any legal proceeding\narising out of this A greement in the state courts situated in Kalispell, Montana or the federal district courts of the Missoula\nDivision for the State of Montana. Each party consents to and submits to the jurisdiction of any such court\nh. Remedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this A greement are cumulative and not altemative.\ni.\nCounterparts. This A greement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n- 5\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC.\nHERITAGE BANCORP\nBy:Randall M. Chesler\nBy:Stanley Wilmoth\nIts:President and CEO\nIts: :President and CEO\nGLACIER BANK\nHERITAGE BANK OF\nNEVADA\nBy:Randall M. Chesier\nIts:President and CEO\nBy:Stanley Wilmoth\nIts:President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]	Exhibit 10.2\nNon–Competition, Non–Solicitation, and Confidentiality Agreement\nThis Non–Competition, Non–Solicitation, and Confidentiality Agreement, dated as of\n, 2019 (this “Agreement”), is made by\nand among Glacier Bancorp, Inc. (“GBCI”), Glacier Bank, a wholly owned subsidiary of GBCI (“Glacier Bank”), Heritage Bancorp\n(“HB”), Heritage Bank of Nevada, a wholly owned subsidiary of HB (“Heritage Bank”), and the undersigned, each of whom is a\ndirector of HB and Heritage Bank (each, a “Director”).\nRecitals\nA. HB and Heritage Bank have entered into a Plan and Agreement of Merger, dated April 3, 2019 (the “Merger Agreement”), with\nGBCI and Glacier Bank. Under the terms of the Merger Agreement, HB will merge with and into GBCI, Heritage Bank will\nmerge with and into Glacier Bank (collectively, the “Merger”), and the former branches of Heritage Bank will operate as a\ndivision of Glacier Bank (the “Division”).\nB. The parties to this Agreement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director’s service as a post-Merger member of the Division’s\nadvisory board (the “Advisory Board”).\nAgreement\nIn consideration of the parties’ performance under the Merger Agreement, each Director agrees as follows:\n1. Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger\nAgreement. The following definitions also apply to this Agreement:\na. A “Competing Business” means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb. The “Covered Area” means Carson City, Nevada; Douglas County, Nevada; and Washoe County, Nevada.\nc. The “Term” means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two years after the Effective Date or (ii) if applicable, one year following the termination of any service\nby such Director as a post-Merger member of the Advisory Board.\n-1-\n2. Incorporation of Restrictive Covenants. Except as provided in Section 5 or 6 of this Agreement, each Director agrees to\ncomply with the restrictive covenants set forth in Section 3.a. and Section 3.b . of that certain Change in Control Agreement (each\na “Change in Control Agreement”) entered into by and among such Director, HB, and Heritage Bank for the period of time\nbeginning on the Effective Date and ending on the later to occur of (a) the expiration of the restrictive period with respect to such\nrestrictive covenants as set forth in Section 3.d . of such Director’s Change in Control Agreement or (b) if applicable, one year\nfollowing the termination of any service by such Director as a post-Merger member of the Advisory Board. Each Director also\nagrees that the restrictive covenants set forth in Section 3.a. and Section 3.b . of the Change in Control Agreement are hereby\namended to apply within the Covered Area. A copy of each such Change in Control Agreement will be retained by GBCI.\n3. Non-Solicitation. In addition, during the Term, each Director agrees not to, directly or indirectly, either for himself or herself or\nfor any other person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI’s subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of GBCI or GBCI’s subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers’, business partners’ or joint venturers’ business or cease doing business with\nGBCI or GBCI’s subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween GBCI or GBCI’s subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and internet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\n4. Confidential Information.\na. Confidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of HB, Heritage Bank, GBCI or GBCI’s subsidiaries, divisions, or affiliates\nobtained by the Director while serving as a director of HB and/or Heritage Bank (or, if applicable, as a post-Merger member\nof the Advisory Board) to any person or use any Confidential Information for his or her own benefit or for the benefit of any\nother person. For purposes of this Agreement, “Confidential Information” includes all secrets and other confidential\ninformation, knowledge, know-how, sales, financial information, customers, lists of customers and prospective customers,\nbroker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals relating to the same, with\nrespect to HB, Heritage Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates. Notwithstanding the foregoing,\n“Confidential Information” does not include (i) information that is or becomes generally available to the public other than\nas a result of an unauthorized disclosure by the Director, (ii) information that was in the Director’s possession prior to\nserving as a director of HB and/or Heritage Bank or\n-2-\ninformation received by the Director from another person without any limitations on disclosure, but only if the Director had\nno reason to believe the other person was prohibited from using or disclosing the information by contractual or fiduciary\nobligation, or (iii) information that was independently developed by the Director without using any Confidential\nInformation of HB, Heritage Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates.\nb. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S .C . § 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nc. Legally Required Disclosures. Notwithstanding any provision of this Agreement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from GBCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\n5. Requests for Consent. During the Term, prior to engaging in any manner in an activity that would result in a violation of the\nrestrictive covenants set forth in Section 3.a or 3.b . of the Change in Control Agreement or Section 3 of this Agreement, a\nDirector may request in writing that GBCI waive the restrictions incorporated into or set forth in this Agreement with respect to\na particular proposed activity. If GBCI determines, in its sole discretion, that such activity is acceptable, GBCI may provide such\nDirector with written consent to engage in such activity.\n-3-\n6. Passive Interest. Notwithstanding anything to the contrary contained herein, nothing in this Agreement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\n7. Miscellaneous.\na. Entire Agreement. This Agreement (including each Director’s Change in Control Agreement) constitutes the entire\nunderstanding and agreement between the parties concerning its subject matter and supersedes and terminates all prior\nagreements, correspondence, representations, and/or understandings between the parties relating to its subject matter.\nb. Individual Obligations. The obligations of each of the signatories to this Agreement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This Agreement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nc. Severability. If any provision of this Agreement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this Agreement, will not be affected.\nd. Reformation. If any court determines that the obligations and restrictions set forth in this Agreement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\ne. Expenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\nf. Amendments; Waivers. Any provision of this Agreement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\n-4-\ng. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of\nNevada, except to the extent that federal law may govern certain matters. The parties must bring any legal proceeding\narising out of this Agreement in the state courts situated in Kalispell, Montana or the federal district courts of the Missoula\nDivision for the State of Montana. Each party consents to and submits to the jurisdiction of any such court.\nh. Remedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not alternative.\ni. Counterparts. This Agreement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n-5-\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC.\nBy:Randall M. Chesler\nIts:President and CEO\nGLACIER BANK\nBy:Randall M. Chesler\nIts:President and CEO\nHERITAGE BANCORP\nBy:Stanley Wilmoth\nIts:President and CEO\nHERITAGE BANK OF\nNEVADA\nBy:Stanley Wilmoth\nIts:President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non–Competition, Non–Solicitation, and Confidentiality Agreement]
293f59373f6a966b13cd7463b4617a6f.pdf	jurisdiction party	EXHIBIT 10.1\nFULL AND GENERAL MUTUAL RELEASE,\nSETTLEMENT AND CONFIDENTIALITY AGREEMENT\nThis FULL AND GENERAL RELEASE, , Settlement and Confidentiality Agreement (hereinafter this “Agreement”) is entered into between RMS TITANIC, INC .\n(“RMST”) and PREMIER EXHIBITIONS, INC . (“Premier”, and hereinafter collectively with RMST referred to as “the Company”) , and THOMAS ZALLER\n(“Zaller”) , IMAGINE EXHIBITIONS , INC. , a Georgia corporation (“Imagine-Georgia”), IMAGINE EXHIBITIONS , INC. , a Nevada corporation (“Imagine-Nevada”),\nIMAGINE EXHIBITIONS PTE, LTD . (“Imagine PTE”) , and TZ, INC . (collectively, “Imagine”) and KINGSMEN EXHIBITS PTE LTD. and its parent company,\nKINGSMEN CREATIVE, LTD . (collectively “Kingsmen”) and altogether collectively referred to as the “Parties. ”\nWHEREAS, RMST and Premier, are Florida corporations whose principal places of business are in Atlanta, Georgia, and who present museum quality exhibitions\nfeaturing artifacts recovered from the wreck site of the RMS Titanic (“the RMST Exhibition”); and\nWHEREAS, on or about June 13, 2011 the Company entered into an agreement to present the RMST Exhibition in Singapore;\nWHEREAS, Zaller is a former employee of the Company who resides in Atlanta, Georgia, and who is the CEO and sole shareholder for Imagine-Georgia,\nImagine-Nevada, Imagine PTE, and TZ, Inc. (collectively, “Imagine”), which companies are engaged in the entertainment business, and, among other things,\nprovide exhibitions at museums and other public venues, including their own Titanic exhibition (“the Imagine Exhibition”); and\nWHEREAS, Kingsmen are Singapore companies whose business operations include the design, production and construction of interiors, including for exhibitions;\nand,\nWHEREAS, RMST, TZ, Inc. , Imagine PTE, Zaller and Kingsmen were all involved in the staging and presentation of the RMST Exhibition in Singapore in 2011\nand 2012, and during which time RMST alleges that it provided Zaller and Kingsmen certain trade secrets, intellectual property and other confidential and\nproprietary information solely for use in the Singapore exhibition; and\nWHEREAS, following the period when the RMST Exhibition was being presented in Singapore, Imagine-PTE and Kingsmen entered into an agreement for the\npresentation of the Imagine Exhibition in Macau, and presented the Imagine Exhibition in Macau on or about October 22, 2012 through March 31, 2013; and\nWHEREAS, a dispute exists between the parties as to whether Zaller, Imagine and Kingsmen misappropriated and used trade secrets, intellectual property,\nand/or proprietary information of the Company, and improperly copied the trade dress of the RMST Exhibition in the Imagine Exhibition; and\nWHEREAS, Imagine, Zaller and Kingsmen have denied that they have misappropriated or used any trade secrets, intellectual property and/or proprietary\ninformation that the Company claims to own and have continued to market and promote their Imagine Exhibition throughout the world (the “Existing Imagine\nExhibition”); and\nWHEREAS, the Company filed a civil action in the United States District Court for the Northern District of Georgia, Atlanta Division (“the Federal Action”) , against\nZaller and Imagine (Civil Action No. 1:13cv-00625 -WSD) alleging, among other things, breach of contract, fraud and fraudulent inducement, trade dress and\nLanham Act violations, and misappropriation of trade secrets; and\n2\nWHEREAS, Kingsmen instituted a civil action in the High Court of the Republic of Singapore (Suit No.: 365 of 2013) against the Company (“the Singapore\nAction”), alleging that Kingsmen has not infringed or improperly used any of the Company’s trademarks, trade dress, trade secrets or other intellectual property;\nand\nWHEREAS, the Company filed a civil action in the United States District Court for the Middle District of Florida, Jacksonville Division, against Kingsmen (Case\nNo. 3:13-cv-463-J -20-TEM), ( “the Florida Action”), alleging similar claims but which case has been dismissed; and\nWHEREAS, the Company has filed a counterclaim in the Singapore Action seeking recovery for damages allegedly sustained from Kingsmen’s activities, and\nWHEREAS, Zaller and Imagine deny the allegations asserted against them by the Company, including but not limited to those allegations asserted in the Federal\nAction; and\nWHEREAS, all the parties referenced herein now wish to settle any and all differences and controversies between them, including those set forth, or which could\nhave been set forth in the Federal Action, the Florida Action and the Singapore Action\n(1) NOW THEREFORE, in consideration of the covenants, conditions and promises set forth herein and for other good and valuable consideration, the receipt\nand sufficiency and delivery of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: Imagine (on its own account\nand/or on behalf of any other party or person, including but not limited to insurers) shall pay to the Company, the sum of Seven Hundred Twenty-Five Thousand\nDollars ($725,000). The sum stated above is the sole monetary consideration for this release. The monetary consideration shall be paid as follows: $725,000 by\ncertified check(s) and/or wire transfers to the Company on or before November 30, 2014. Zaller, Imagine and Kingsmen, and their insurers and counsel, make no\nrepresentations or warranties as\n3\nto the tax treatment, implications or consequences to the Company from these payments; and the Company assumes full responsibility for the tax consequences of these payments, if any.\n(2) Kingsmen agrees, represents and warrants that it shall not exhibit or participate in any Titanic-themed exhibition with Zaller or Imagine (excluding the Existing\nImagine Exhibition) anywhere for 24 months from the date of execution of this Agreement.\n(3) Zaller and Imagine agree, represent and warrant that they will not engage or participate in any Titanic-themed exhibitions (excluding the Existing Imagine\nExhibition) for 24 months from the date of execution of this Agreement\n(4) Zaller and Imagine agree, represent and warrant that they will not stage a Titanic-themed Exhibition, including the Existing Imagine Exhibition, in the United\nStates or Canada for 36 months from the date of execution of this Agreement, or Western Europe (defined herein as the United Kingdom, Ireland, France,\nGermany, Italy, Switzerland, Spain, Portugal, Sweden, Denmark and Norway only) for 24 months from the date of execution of this Agreement.\n(5) In consideration of the payment set forth in paragraph one (1) above, and for other good and valuable consideration, the receipt of which is hereby\nacknowledged, the Company, together with its affiliates, subsidiaries, parents, shareholders, officers, principals, employees, directors, agents, insurers, attorneys,\nand assigns fully, finally, and completely releases, quitclaims and discharges Zaller, Imagine and Kingsmen, their predecessors and successors, present and\nformer affiliates, subsidiaries, legal representatives, heirs, spouses, executors, administrators, insurers, employees, officers, directors, shareholders, attorneys,\nindependent contractors and agents from each and every present, past or future claim, debt, demand, judgment, cause of action, rights, damages, costs or suits,\nresponsibility and liability of every kind and character whatsoever, known or unknown, suspected or unsuspected, now existing,\n4\nwhether based on statute, federal law, common law, international law, tort, contract, or any other theory of recovery, pertaining to all matters which are, have been or may have been or could have been the subject of\nand/or in connection with the Federal Court Action, the Florida Action, the Singapore Action or arising out of and/or in connection with any RMST Exhibition, and from any and all alleged breaches and damages\nbetween the parties, which existed up to the date of execution of this Agreement. Further or additionally, the Company shall write to Las Vegas Sands Corporation, the Venetian in Macau and Marina Bay Sands in\nSingapore notifying them that the disputes between the Company and Zaller/Imagine/Kingsmen have been fully and finally resolved with Zaller, Imagine and Kingsmen denying any liability to the Company and\nmaking no admissions with respect to the resolution of the dispute (“the Sands Letter”). A draft of the Sands Letter shall first be sent to Zaller, Imagine and Kingsmen prior to it being sent and within seven (7) days of\nthe date of payment set forth in paragraph 1. The Sands Letter shall be sent by the Company within seven (7) days of approval of the draft by Zaller, Imagine and Kingsmen.\n(6) As a required condition of this settlement, the Company agrees to dismiss with prejudice the Federal Court Action, and the counterclaim in the Singapore\nAction, within five (5) days of receipt of the payment described in paragraph one (1) above, and covenants not to sue Zaller, Imagine and Kingsmen for the\nreleased claims set out in this Agreement and/or for any claims alleged or which could have been alleged in the Federal Court Action, the Florida Action, the\nSingapore Action, or which existed up to the date of execution of this Agreement whether known or unknown.\n(7) In consideration of the dismissal of the Federal Court Action, the counterclaim in the Singapore Action, the aforesaid releases, and other good and valuable\nconsideration, Zaller, Imagine and Kingsmen, and their heirs, spouses, executors, administrators, affiliated companies,\n5\nsubsidiaries, current and former officers, directors, managers, shareholders, members, employees, agents, attorneys, and their insurers, representatives, successors and assigns, do fully and finally, completely\nrelease, quitclaim and discharge the Company, its predecessors and successors, present and former affiliates, subsidiaries, officers, directors, shareholders, members, employees, attorneys, insurers, and agents\nfrom each and every present, past or future claim, debt, demand, judgment, cause of action, rights, damages, costs, or suits, responsibility and liability of every kind and character whatsoever, known or unknown,\nsuspected or unsuspected, now existing, whether based on statute, federal law, common law, international law, tort, contract, or any other theory of recovery, pertaining to the Company, including as to the RMST\nExhibitions, and for all actions or inactions including, but not limited to, all claims and counts set forth in the Singapore Action, and/or arising out of or otherwise related to the incident(s) referenced in the\nabove-identified litigation, including without limitation, all rights or claims that also could have been asserted in the Federal Court Action, the Florida Action, or the Singapore Action, and from all alleged breaches and\ndamages between the parties which existed up to the date of execution of this Agreement, whether known or unknown. Kingsmen further agrees that, within five (5) days of execution of this Agreement, it will together\nwith the Company’s Singapore lawyers, dismiss with prejudice its claims and the Company’s counterclaims in the Singapore Action, each party therein to bear its own costs and attorneys’ fees.\n(8) As a required condition of this settlement, the Company agrees to dismiss with prejudice all claims alleged against Kingsmen in its Counterclaim in the\nSingapore Action, and covenants not to sue Kingsmen for the released claims and/or any claims alleged or which could have been alleged in the Florida Action or\nthe Singapore Action, or which existed up to the date\n6\nof execution of this Agreement, and/or in connection with the matters set out therein (including in the preamble of this Agreement) whether known or unknown.\n(9) The Parties further agree that irrespective of any prior rulings or orders , they shall bear their own costs, attorneys’ fees and litigation expenses.\n(10) The Parties agree to assume full responsibility for and to indemnify and hold each other harmless from any and all liability for claims or liens which are, or\nmay be, asserted against them which arise out of or otherwise relate to their alleged obligations incurred after commencement of the Federal Action, including,\nbut not limited to, claims or liens for legal, expert witness or any other services rendered or provided to or on behalf of the parties or otherwise arising out of or by\noperation of statute or common law.\n(11) Zaller, Imagine and Kingsmen do not admit, but rather expressly deny, the allegations of liability and/or wrongdoing set forth against them in the Federal\nAction, the Florida Action and the Singapore Action, and the aforesaid monetary consideration is paid in compromise of a disputed claim or claims in order to\navoid the expenses of further investigation and litigation.\n(12) The Parties represent and warrant that they have not conveyed, transferred, pledged, hypothecated, or in any manner whatsoever assigned or encumbered\nany of the claims set forth or which could have been set forth in the Federal Action, the Florida Action and the Singapore Action.\n(13) The undersigned specifically authorize and direct Robert S. Thompson, Esquire and Robert W. McFarland, Esquire, or their designees, to execute orders\ndismissing the Federal Court Action with prejudice, and further direct the law firm of TSMP Law Corporation and\n7\nCherrin Wong and the law firm of Rajah Tann, to execute all documents necessary to dismiss with prejudice the Claims and Counterclaim in the Singapore Action.\n(14) As a material inducement to enter this settlement, the Parties have agreed and do agree that the nature, terms and conditions of this Agreement are strictly\nconfidential and shall not in the future be disclosed, other than to the following: (A) the Parties to this Agreement and any subsidiary, affiliate, associate, employee\nor parent companies and their insurers, reinsurers, auditors, accountants and attorneys, to further the legitimate business purposes of such Parties; (B) between\nand amongst the Parties in connection with the required notices and other proceedings set forth in this Agreement; (C) the Internal Revenue Service, or any other\nstate, federal, or local governmental taxing authority, in connection with tax returns, amendments or related documents; (D) the Securities and Exchange\nCommission (“SEC”) in such filings as the Company is required to provide, and such SEC disclosures may state that the Federal Action has been resolved by\nagreement of the parties therein, and that the Company is receiving funds from the settlement without any admissions of fault or liability, and shall further state\nthat the Singapore Action has been dismissed by agreement of Kingsmen and the Company; and that Zaller, Imagine and Kingsmen deny any liability to the\nCompany ; (E) any person designated pursuant to an order from a court of competent jurisdiction, or as may otherwise be required by law, provided that the\ndisclosing Party shall make reasonable efforts to have this Agreement covered by protective order limiting dissemination to those involved in such proceedings;\n(F) in the event of a dispute or other litigation between any of the Parties involving the provisions of this Agreement, but in such event the disclosure shall be\nunder terms that preserve the confidentiality of the information disclosed; (G) the Singapore Exchange (“SGX ”) in such filings as Kingsmen is required to provide\nbut such SGX disclosure shall be limited to a bare or simple\n8\nstatement relating to the outcome of the Singapore Action and, if relevant, that the Company denies any liability to Kingsmen and vice versa or (H) the Parties agree in writing to the specific disclosure. To the extent\nnecessary, the Parties assign a value of $500.00 of the total consideration for this Agreement.\n(15) Each of the Parties further agrees that they will not say or do anything that would or could be construed to defame, libel or disparage the reputation of any of\nthe other Parties, except as required by law. The Parties further agree that they will require their respective employees who have knowledge of the existence and\nterms of this Agreement, for so long as they remain employees, to not say or do anything that would or could be reasonably construed to defame, libel or\ndisparage the reputation of any of the other Parties, except as required by law. Nothing contained herein shall prevent any Party from providing truthful testimony\nin court, administrative hearings, arbitration, discovery responses, depositions, or as otherwise required by law.\n(16) This Agreement contains the entire agreement between the parties hereto, regarding the issues and disputes which have arisen in the Federal Action, the\nFlorida Action and the Singapore Action, and all other related matters regarding the rights, duties and obligations under the aforementioned matters, and no\npromise, inducement, agreement or other consideration not herein expressed has been made between the parties. It is expressly understood and agreed that\nthis Agreement may not be altered, amended, modified or otherwise changed in any respect or particular whatsoever, except by a writing duly executed by an\nauthorized representative of each of the Parties.\n(17) The undersigned acknowledge that they have read the foregoing provisions of this document before executing it and that they understand its provisions, or\nhave made any\n9\nnecessary inquiries to understand its provisions. Further, the undersigned have been advised by counsel of their choice of the advisability of accepting the settlement herein set out. The persons executing this\nAgreement for the Company, Imagine, and Kingsmen affirm, respectively, that they possess authority to execute this Agreement on the entity’s behalf. As between the Company, and Zaller and Imagine, this\nAgreement shall be deemed to have been made and entered into in the State of Georgia, and shall in all respects be interpreted, enforced and governed under the laws of the State of Georgia, without regard to\nconflicts of laws principles or choice of law provisions. The language of all parts of this Agreement shall be construed as a whole, according to its plain meaning, and not be interpreted or construed against or for any\nof the Parties. Any dispute and/or difference between the Company and Kingsmen arising out of and/or in connection with this Agreement (including but not limited to any questions regarding its existence, effect,\nvalidity and/or termination) shall be referred to and finally resolved by international arbitration in Singapore in accordance with the Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time\nbeing in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of a single arbitrator appointed by the Chairman of the SIAC. The language of the arbitration shall be\nEnglish. The prevailing party in any action or proceedings brought to enforce and/or because of an alleged breach of this Agreement shall be entitled to recovery of its costs and attorneys’ fees incurred in the action.\nAs between the Company and Kingsmen, any dispute arising under and/or in connection with this Agreement shall be governed solely and only by the laws of the Republic of Singapore (excluding private international\nlaw considerations) as if both the Company and Kingsmen and the transaction are domiciled in the Republic of Singapore.\n10\n(18) Should any provision of this Agreement be held by a court or tribunal of competent jurisdiction to be unenforceable, or enforceable only if modified, that\nholding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties, with any modification to\nbecome a part hereof and treated as though contained in this original Agreement.\n(19) Zaller, Imagine and the Company consent to personal jurisdiction and venue in connection with any alleged breach of this Agreement in the United States\nDistrict Court for the Northern District of Georgia, Atlanta Division, or an appropriate state court forum for Atlanta, Georgia. This Agreement shall be binding\nupon, and inure to the benefit of the successors and assigns of the parties. The prevailing party in any action brought to enforce and/or because of an alleged\nbreach of this Agreement shall be entitled to recovery of its costs and attorneys’ fees incurred in the action.\n(20) This Agreement shall be effective whether executed as a single document or in counterparts, and taken together shall be deemed a single binding and\nenforceable instrument. True copies of this Agreement have the same force and effect as an original.\nTHE UNDERSIGNED HAVE READ THIS RELEASE, UNDERSTANDS IT FULLY , AND SIGNS IT VOLUNTARILY, WITH THE INTENT TO BE LEGALLY BOUND\nTHEREBY.\nIN WITNESS WHEREOF, we do hereby set our hands and seals.\n(1) IMAGINE EXHIBITIONS, INC ., a Georgia corporation\nBy:\nTitle:\nDate:\n11\n(2) IMAGINE EXHIBITIONS, INC ., a Nevada corporation\nBy:\nTitle:\nDate:\n(3) IMAGINE EXHIBITIONS PTE, Ltd.\nBy:\nTitle:\nDate:\n(4) TZ, Inc.\nBy:\nTitle:\nDate:\n(5) THOMAS ZALLER\n(6) PREMIER EXHIBITIONS, INC.\nBy:\nTitle:\nDate:\n12\n(7)\nRMS TITANIC, INC .\nBy:\nTitle:\nDate:\n(8)\nKINGSMEN EXHIBITS PTE, LTD .\nBy:\nTitle:\nDate:\n(9)\nKINGSMEN CREATIVES LTD.\nBy:\nTitle:\nDate:\n13	EXHIBIT 10.1\nFULL AND GENERAL MUTUAL RELEASE,\nSETTLEMENT AND CONFIDENTIALITY AGREEMENT\nThis FULL AND GENERAL RELEASE, , Settlement and Confidentiality Agreement (hereinafter this “Agreement") is entered into between RMS TITANIC, INC.\n(“RMST") and PREMIER EXHIBITIONS, INC. ("Premier", and hereinafter collectively with RMST referred to as “the Company"), and THOMAS ZALLER\n(“Zaller"), IMAGINE EXHIBITIONS, INC., a Georgia corporation (“Imagine-Georgia"), IMAGINE EXHIBITIONS, INC., a Nevada corporation (“Imagine-Nevada"),\nIMAGINE EXHIBITIONS PTE, LTD. (“Imagine PTE"), and T2, INC. (collectively, “Imagine") and KINGSMEN EXHIBITS PTE LTD. and its parent company,\nKINGSMEN CREATIVE, LTD. (collectively “Kingsmen") and altogether collectively referred to as the “Parties."\nWHEREAS, RMST and Premier, are Florida corporations whose principal places of business are in Atjanta, Georgia, and who presentmuseum quality exhibitions\nfeaturing artifacts recovered from the wreck site of the RMS Titanic ('the RMST Exhibition"); and\nWHEREAS, on or about] une 13, 2011 the Company entered into an agreement to presentthe RMST Exhibition in Singapore;\nWHEREAS, Zaller is a former employee of the Company who resides in Atlanta, Georgia, and who is the CEO and sole shareholder for Imagine-Georgia,\nImagine-Nevada, Imagine PTE, and T2, Inc. (collectively, “Imagine"), which companies are engaged in the entertainment business, and, among other things,\nprovide exhibitions at museums and other public venues, including their own Titanic exhibition ('the Imagine Exhibition"); and\nWHE REAS, Kingsmen are Singapore companies whose business operations include the design, production and construction of interiors, including for exhibitions;\nand,\nWHEREAS, RMST, TZ, Inc., Imagine PTE, Zaller and Kingsmen were all involved in the staging and presentation of the RMST Exhibition in Singapore in 2011\nand 2012, and during which time RMST alleges that it provided Zaller and Kingsmen certain trade secrets, intellectual property and other confidential and\nproprietary information solely for use in the Singapore exhibition; and\nWHEREAS, following the period when the RMST Exhibition was being presented in Singapore, Imagine-PTE and Kingsmen entered into an agreement for the\npresentation ofthe Imagine Exhibition in Macau, and presented the Imagine Exhibition in Macau on or aboutOctober 22, 2012 through March 31, 2013; and\nWHEREAS, a dispute exists between the parties as to whether Zaller, Imagine and Kingsmen misappropriated and used trade secrets, intellectual property,\nand/or proprietary information ofthe Company, and improperly copied the trade dress of the RMST Exhibition in the Imagine Exhibition; and\nWHEREAS, Imagine, Zaller and Kingsmen have denied that they have misappropriated or used any trade secrets, intellectual property and/or proprietary\ninformation that the Company claims to own and have continued to market and promote their Imagine Exhibition throughout the world (the “Existing Imagine\nExhibition"); and\nWHEREAS, the Company filed a civil action in the United States DistrictCourt for the Northern DistrictofGeorgia, Atlanta Division (“the Federal Action"), against\nZaller and Imagine (Civil Action No. 1:13cv-00625-WSD) alleging, among other things, breach of contract, fraud and fraudulent inducement, trade dress and\nLanham Actviolations, and misappropriation oftrade secrets; and\nWHEREAS, Kingsmen instituted a civil action in the High Court of the Republic of Singapore (Suit No.: 365 of 2013) against the Company ('the Singapore\nAction"), alleging that Kingsmen has not infringed or improperly used any of the Company's trademarks, trade dress, trade secrets or other intellectual property;\nand\nWHEREAS, the Company filed a civil action in the United States DistrictCourt for the Middle District of Florida, I acksonville Division, against Kingsmen (Case\nNo. 3:13-cv-463-J -20-TEM), ('the Florida Action"), alleging similar claims butwhich case has been dismissed; and\nWHE REAS, the Company has filed a counterclaim in the Singapore Action seeking recovery for damages allegedly sustained from Kingsmen’s activities, and\nWHEREAS, Zaller and Imagine deny the allegations asserted againstthem by the Company, including but notlimited to those allegations asserted in the Federal\nAction; and\nWHEREAS, all the parties referenced herein now wish to settle any and all differences and controversies between them, including those set forth, or which could\nhave been set forth in the Federal Action, the Florida Action and the Singapore Action\n(1) NOW THE RE FORE, in consideration ofthe covenants, conditions and promises setforth herein and for other good and valuable consideration, the receipt\nand sufficiency and delivery ofwhich is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: Imagine (on its own account\nand/or on behalfof any other party or person, including but not limited to insurers) shall pay to the Company, the sum of Seven Hundred Twenty-Five Thousand\nDollars ($725,000). The sum stated above is the sole monetary consideration for this release. The monetary consideration shall be paid as follows: $725,000 by\ncertified check(s) and/or wire transfers to the Company on or before November 30, 2014. Zaller, Imagine and Kingsmen, and their insurers and counsel, make no\nrepresentations or warranties as\nto the tax treatment, implications or consequences to the Company from these paymenE; and the Company assumes full responsibility for the tax consequences of these payments, ifany.\n(2) Kingsmen agrees, represents and warrants that itshall notexhibitor participate in any Titanic-themed exhibition with Zaller or Imagine (excluding the Existing\nImagine Exhibition) anywhere for 24 months from the date of execution of this Agreement.\n(3) Zaller and Imagine agree, represent and warrant thatthey will notengage or participate in any Titanic-themed exhibitions (excluding the Existing Imagine\nExhibition) for 24 months from the date of execution of this Agreement\n(4) Zaller and Imagine agree, representand warrantthatthey will not stage a Titanic-themed Exhibition, including the Existing Imagine Exhibition, in the United\nStates or Canada for 36 months from the date ofexecution ofthis Agreement, or Western Europe (defined herein as the United Kingdom, Ireland, France,\nGermany, Italy, Switzerland, Spain, Portugal, Sweden, Denmark and NonNay only) for 24 months from the date ofexecution of this Agreement.\n(5) In consideration of the paymentset forth in paragraph one (1) above, and for other good and valuable consideration, the receipt of which is hereby\nacknowledged, the Company, together with its affiliates, subsidiaries, parent's, shareholders, officers, principals, employees, directors, agent's, insurers, attorneys,\nand assigns fully, finally, and completely releases, quitclaims and discharges Zaller, Imagine and Kingsmen, their predecessors and successors, present and\nformer affiliates, subsidiaries, legal representatives, heirs, spouses, executors, administrators, insurers, employees, officers, directors, shareholders, attorneys,\nindependentcontractors and agents from each and every present, pastor future claim, debt, demand, judgment, cause of action, rights, damages, costs or suits,\nresponsibility and liability ofevery kind and character whatsoever, known or unknown, suspected or unsuspected, now existing,\nwhether based on statute, federal law, common law, international law, tort, contract, orany other theory of recovery, pertaining to all matters which are, have been or may have been orcould have been the subject of\nand/or in connection with the Federal Court Action, the Florida Action, the Singapore Action or arising out ofand/orin connection with any RMST Exhibition, and from any and all alleged breaches and damages\nbetween the parties, which existed up to the date of execution of this Agreement. Further or additionally, the Company shall write to Las Vegas Sands Corporation, the Venetian in Macau and Marina Bay Sands in\nSingapore notifying them that the disputes between the Company and Zaller/Imagine/Kingsmen have been fully and finally resolved with Zaller, Imagine and Kingsmen denying any liability to the Company and\nmaking no admissions with respectto the resolution of the dispute (“the Sands Letter”). A draft of the Sands Letter shall first be sent to Zaller, Imagine and Kingsmen priorto it being sentand within seven (7) days of\nthe date of payment set forth in paragraph 1. The Sands Letter shall be sent by the Company within seven (7) days of approval of the draft by Zaller, Imagine and Kingsmen.\n(6) As a required condition of this settjement, the Company agrees to dismiss with prejudice the Federal Court Action, and the counterclaim in the Singapore\nAction, within five (5) days of receipt of the paymentdescribed in paragraph one (1) above, and covenants not to sue Zaller, Imagine and Kingsmen for the\nreleased claims setout in this Agreement and/or for any claims alleged or which could have been alleged in the Federal Court Action, the Florida Action, the\nSingapore Action, or which existed up to the date ofexecution of this Agreementwhether known or unknown.\n(7) In consideration of the dismissal of the Federal Court Action, the counterclaim in the Singapore Action, the aforesaid releases, and other good and valuable\nconsideration, Zaller, Imagine and Kingsmen, and their heirs, spouses, executors, administrators, affiliated companies,\nsubsidiaries, currentand formerofficers, directors, managers, shareholders, members, employees, agenE, attorneys, and their insurers, representatives, successors and assigns, do fully and finally, completely\nrelease, quitclaim and discharge the Company, its predecessors and successors, presentand former affiliates, subsidiaries, officers, directors, shareholders, members, employees, attorneys, insurers, and agents\nfrom each and every present, pastorfuture claim, debt, demand, judgment, cause ofaction, rights, damages, c055, orsuits, responsibility and liability of event kind and character whatsoever, known or unknown,\nsuspected or unsuspected, now existing, whether based on statute, federal law, common law, international law, tort, contract, or any othertheory of recovery, pertaining to the Company, including as to the RMST\nExhibitions, and forall actions or inactions including, but not limited to, all claims and counts set forth in the Singapore Action, and/orarising out oforotherwise related to the incident(s) referenced in the\nabove-identified litigation, including without limitation, all righE or claims thatalso could have been asserted in the Federal Court Action, the Florida Action, orthe Singapore Action, and from all alleged breaches and\ndamages between the parties which existed up to the date of execution of this Agreement, whether known or unknown. Kingsmen further agrees that, within five (5) days of execution of this Agreement, it will together\nwith the Company's Singapore lawyers, dismiss with prejudice is claims and the Company's counterclaims in the Singapore Action, each party therein to bear its own costs and attorneys' fees.\n(8) As a required condition of this settlement, the Company agrees to dismiss with prejudice all claims alleged against Kingsmen in its Counterclaim in the\nSingapore Action, and covenants notto sue Kingsmen for the released claims and/or any claims alleged or which could have been alleged in the Florida Action or\nthe Singapore Action, or which existed up to the date\nof execution of this Agreement, and/or in connection with the matters set out therein (including in the preamble of this Agreement) whether known or unknown.\n(9) The Parties further agree that irrespective of any prior rulings or orders , they shall bear their own costs, attorneys’ fees and litigation expenses.\n(10) The Parties agree to assume full responsibility for and to indemnify and hold each other harmless from any and all liability for claims or liens which are, or\nmay be, asserted against them which arise out of or othenNise relate to their alleged obligations incurred after commencement of the Federal Action, including,\nbut not limited to, claims or liens for legal, expertwitness or any other services rendered or provided to or on behalf of the parties or othenNise arising outof or by\noperation ofstatute or common law.\n(11)Zaller, Imagine and Kingsmen do not admit, but rather expressly deny, the allegations of liability and/or wrongdoing set forth againstthem in the Federal\nAction, the Florida Action and the Singapore Action, and the aforesaid monetary consideration is paid in compromise of a disputed claim or claims in order to\navoid the expenses of further investigation and litigation.\n(12) The Parties represent and warrant that they have notconveyed, transferred, pledged, hypothecated, or in any manner whatsoever assigned or encumbered\nany of the claims set forth or which could have been setforth in the Federal Action, the Florida Action and the Singapore Action.\n(13) The undersigned specifically authorize and direct Robert S. Thompson, Esquire and Robert W. McFarland, Esquire, or their designees, to execute orders\ndismissing the Federal CourtAction with prejudice, and further directthe law firm ofTS M P Law Corporation and\nCherrin Wong and the law firm of Rajah Tann, to execute all documenE necessary to dismiss with prejudice the Claims and Counterclaim in the Singapore Action.\n(14) As a material inducementto enter this settlement, the Parties have agreed and do agree that the nature, terms and conditions of this Agreement are strictly\nconfidential and shall not in the future be disclosed, other than to the following: (A) the Parties to this Agreement and any subsidiary, affiliate, associate, employee\nor parent companies and their insurers, reinsurers, auditors, accountants and attorneys, to further the legitimate business purposes ofsuch Parties; (B) between\nand amongstthe Parties in connection with the required notices and other proceedings set forth in this Agreement; (C) the Internal Revenue Service, or any other\nstate, federal, or local governmental taxing authority, in connection with tax returns, amendments or related documents; (D) the Securities and Exchange\nCommission (“S EC") in such filings as the Company is required to provide, and such S EC disclosures may state thatthe Federal Action has been resolved by\nagreement of the parties therein, and that the Company is receiving funds from the settlementwithout any admissions offault or liability, and shall further state\nthat the Singapore Action has been dismissed by agreementof Kingsmen and the Company; and thatZaller, Imagine and Kingsmen deny any liability to the\nCompany; (E) any person designated pursuantto an order from a courtofcompetentjurisdiction, or as may otherwise be required by law, provided that the\ndisclosing Party shall make reasonable efforts to have this Agreementcovered by protective order limiting dissemination to those involved in such proceedings;\n(F) in the event of a dispute or other litigation between any ofthe Parties involving the provisions of this Agreement, but in such eventthe disclosure shall be\nunder terms that preserve the confidentiality ofthe information disclosed; (G) the Singapore Exchange (“SGX") in such filings as Kingsmen is required to provide\nbutsuch SGX disclosure shall be limited to a bare or simple\nstatement relating to the outcome of the Singapore Action and, if relevant, that the Company denies any liability to Kingsmen and vice versa or (H) the Parties agree in writing to the specific disclosure. To the extent\nnecessary, the Parties assign a value of $500.00 of the total consideration for this Agreement.\n(15) Each of the Parties further agrees that they will not say or do anything that would or could be construed to defame, libel or disparage the reputation of any of\nthe other Parties, except as required by law. The Parties further agree that they will require their respective employees who have knowledge ofthe existence and\nterms of this Agreement, for so long as they remain employees, to notsay or do anything thatwould or could be reasonably construed to defame, libel or\ndisparage the reputation of any ofthe other Parties, except as required by law. Nothing contained herein shall prevent any Party from providing truthful testimony\nin court, administrative hearings, arbitration, discovery responses, depositions, or as otherwise required by law.\n(16) This Agreementcontains the entire agreement between the parties hereto, regarding the issues and disputes which have arisen in the Federal Action, the\nFlorida Action and the Singapore Action, and all other related matters regarding the rights, duties and obligations under the aforementioned matters, and no\npromise, inducement, agreementor other consideration not herein expressed has been made between the parties. It is expressly understood and agreed that\nthis Agreement may not be altered, amended, modified or othenNise changed in any respector particular whatsoever, except by a writing duly executed by an\nauthorized representative of each ofthe Parties.\n(17) The undersigned acknowledge thatthey have read the foregoing provisions of this document before executing it and that they understand its provisions, or\nhave made any\nnecessary inquiries to understand its provisions. Further, the undersigned have been advised by counsel of their choice ofthe advisability of accepting the settlement herein setout. The persons executing this\nAgreement for the Company, Imagine, and Kingsmen affirm, respectively, that they possess authority to execute this Agreement on the entity's behalf. As between the Company, and Zaller and Imagine, this\nAgreementshall be deemed to have been made and entered into in the State ofGeorgia, and shall in all respects be interpreted, enforced and governed underthe laws of the State ofGeorgia, without regard to\nconflicE of laws principles or choice of law provisions. The language of all parts of this Agreement shall be construed as a whole, according to its plain meaning, and not be interpreted or construed againstorfor any\nof the Parties. Any dispute and/or difference between the Company and Kingsmen arising out of and/or in connection with this Agreement (including but not limited to any questions regarding its existence, effect,\nvalidity and/or termination) shall be referred to and finally resolved by international arbitration in Singapore in accordance with the Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time\nbeing in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consistofa single arbitrator appointed by the Chairman of the SIAC.The language of the arbitration shall be\nEnglish. The prevailing party in any action or proceedings brought to enforce and/or because of an alleged breach of this Agreement shall be entitled to recovery of its costs and attorneys' fees incurred in the action.\nAs between the Company and Kingsmen, any dispute arising underand/or in connection with this Agreementshall be governed solely and only by the laws ofthe Republic ofSingapore (excluding private international\nlaw considerations) as if both the Company and Kingsmen and the transaction are domiciled in the Republic of Singapore.\n10\n(18) Should any provision of this Agreement be held by a court or tribunal of competentjurisdiction to be unenforceable, or enforceable only if modified, that\nholding shall not affectthe validity of the remainder of this Agreement, the balance ofwhich shall continue to be binding upon the parties, with any modification to\nbecome a part hereof and treated as though contained in this original Agreement.\n(19)Zaller, Imagine and the Company consent to personal jurisdiction and venue in connection with any alleged breach of this Agreement in the United States\nDistrictCourtforthe Northern District ofGeorgia, Atlanta Division, or an appropriate state court forum for Atianta, Georgia. This Agreementshall be binding\nupon, and inure to the benefit of the successors and assigns ofthe parties. The prevailing party in any action brought to enforce and/or because of an alleged\nbreach of this Agreement shall be entitled to recovery of its costs and attorneys’ fees incurred in the action.\n(20) This Agreementshall be effective whether executed as a single document or in counterparts, and taken together shall be deemed a single binding and\nenforceable instrument. True copies of this Agreement have the same force and effect as an original.\nTHE UNDERSIGNED HAVE READ THIS RELEASE, UNDERSTANDS |T FULLY,AND SIGNS |T VOLUNTARILY, WITH THE INTENT TO BE LEGALLY BOUND\nTHEREBY.\nIN WITNESS WHEREOF, we do hereby setour hands and seals.\n(1) IMAGINE EXHIBITIONS, INC., a Georgia corporation\nBy:\nTitle:\nDate:\n11\n(2) IMAGINE EXHIBITIONS, INC., a Nevada corporation\n12\n13\nBy:\nTitle: Date: By:\nTitle: Date: By:\nTitle: Date: By:\nTitle: Date: By:\nTitle:\nDate:\nBy:\nTitle:\nDate:\nBy:\nTitle:\nDate:\nIMAGINE EXHIBITIONS PTE, Ltd.\nTZ, Inc.\nTHOMAS ZALLER\nPREMIER EXHIBITIONS, INC.\nRMS TITANIC, INC.\nKINGSMEN EXHIBITS PTE, LTD.\nKINGSMEN CREATIVES LTD.	EXHIBIT 10.1\nFULL AND GENERAL MUTUAL RELEASE,\nSETTLEMENT AND CONFIDENTIALITY AGREEMENT\nThis FULL AND GENERAL RELEASE, Settlement and Confidentiality Agreement (hereinafter this "Agreement") is entered into between RMS TITANIC, INC.\n("R MST") and PREMIER EXHIBITIONS, INC. ("Premier", and hereinafter collectively with RMST referred to as "the Company"), and THOMAS ZALLER\n("Zaller"), IMAGINE EXHIBITIONS, INC., a Georgia corporation ("Imagine-Georgia") IMAGINE EXHIBITIONS, INC., a Nevada corporation ("Imagine-Nevada"),\nIMAGINE EXHIBITIONS PTE, LTD. ("Imagine PTE"), and TZ, INC. (collectively, "Imagine") and KINGSMEN EXHIBITS PTE LTD. and its parent company,\nKINGSMEN CREATIVE, LTD (collectively "Kingsmen") and altogether collectively referred to as the "Parties."\nWHEREAS, RMST and Premier are Florida corporations whose principa places of business are in Atlanta, Georgia, and who present museum quality exhibitions\nfeaturing artifacts recovered from the wreck site of the RMS Titanic ("the RMST Exhibition"); and\nWHEREAS, on or about une 13, 2011 the Company entered into an agreement to present the RMST Exhibition in Singapore;\nWHEREAS, Zaller is a former employee of the Company who resides in Atlanta, Georgia, and who is the CEO and sole shareholder for Imagine-Georgia,\nImagine-Nevada, Imagine PTE, and TZ, Inc. (collectively, "Imagine"), which companies are engaged in the entertainment business, and, among other things,\nprovide exhibitions at museums and other public venues, including their own Titanic exhibition ("the Imagine Exhibition"); and\nWHEREAS, Kingsmen are Singapore companies whose business operations include the design, production and construction of interiors, including for exhibitions;\nand,\nWHEREAS, RMST, TZ, Inc., Imagine PTE, Zaller and Kingsmen were all involved in the staging and presentation of the RMST E xhibition in Singapore in 2011\nand 2012, and during which time RMST alleges that it provided Zaller and Kingsmen certain trade secrets, intellectual property and other confidential and\nproprietary information solely for use in the Singapore exhibition; and\nWHEREAS, following the period when the RMST Exhibition was being presented in Singapore, Imagine-PTE and Kingsmen entered into an agreement for the\npresentation of the Imagine E xhibition in Macau, and presented the Imagine E xhibition in Macau on or about O ctober 22, 2012 through March 31, 2013; and\nWHEREAS, a dispute exists between the parties as to whether Zaller, Imagine and Kingsmen misappropriated and used trade secrets, intellectual property,\nand/or proprietary information of the Company, and improperly copied the trade dress of the RMST Exhibition in the Imagine E xhibition; and\nWHEREAS, Imagine, Zaller and Kingsmen have denied that they have misappropriated or used any trade secrets, intellectual property and/or proprietary\ninformation that the Company claims to own and have continued to market and promote their Imagine Exhibition throughout the world (the "Existing Imagine\nExhibition"); and\nWHEREAS, the Company filed a civil action in the United States District Court for the Northern District of Georgia, Atlanta Division ("the Federal Action"), against\nZaller and Imagine (Civil Action No. 1:13cv-00625-WSD) alleging, among other things, breach of contract, fraud and fraudulent inducement, trade dress and\nLanham Act violations, and misappropriation of trade secrets; and\n2\nWHEREAS, Kingsmen instituted a civil action in the High Court of the Republic of Singapore (Suit No.: 365 of 2013) against the Company ("the Singapore\nAction"), alleging that Kingsmen has not infringed or improperly used any of the Company's trademarks, trade dress, trade secrets or other intellectual property;\nand\nWHEREAS, the Company filed a civil action in the United States District Court for the Middle District of Florida, J acksonville Division, against Kingsmen (Case\nNo. 3:13-CV-463-J-20-TEM) ("the Florida Action") alleging similar claims but which case has been dismissed; and\nWHEREAS, the Company has filed a counterclaim in the Singapore Action seeking recovery for damages allegedly sustained from Kingsmen's activities, and\nWHEREAS, Zaller and Imagine deny the allegations asserted against them by the Company, including but not limited to those allegations asserted in the Federal\nAction; and\nWHEREAS, all the parties referenced herein now wish to settle any and all differences and controversies between them, including those set forth, or which could\nhave been set forth in the Federal Action, the Florida Action and the ingapore Action\n(1) NOW THEREFORE, in consideration of the covenants, conditions and promises set forth herein and for other good and valuable consideration, the receipt\nand sufficiency and delivery of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: Imagine (on its own account\nand/or on behalf of any other party or person, including but not limited to insurers) shall pay to the Company, the sum of even Hundred Twenty-Five Thousand\nDollars ($725,000). The sum stated above is the sole monetary consideration for this release. The monetary consideration shall be paid as follows: $725,000 by\ncertified check(s) and/or wire transfers to the Company on or before November 30, 2014. Zaller, Imagine and Kingsmen, and their insurers and counsel, make no\nrepresentations or warranties as\n3\nto the tax treatment, implications or consequences to the Company from these payments; and the Company assumes full responsibility for the tax consequences of these payments, if any.\n(2) Kingsmen agrees, represents and warrants that it shall not exhibit or participate in any Titanic-themed exhibition with Zaller or Imagine (excluding the Existing\nImagine Exhibition) anywhere for 24 months from the date of execution of this Agreement.\n(3) Zaller and Imagine agree, represent and warrant that they will not engage or participate in any Titanic-themed exhibitions (excluding the Existing Imagine\nE xhibition) for 24 months from the date of execution of this Agreement\n(4) Zaller and Imagine agree, represent and warrant that they will not stage a Titanic-themed E xhibition, including the E Existing Imagine E xhibition, in the United\nStates or Canada for 36 months from the date of execution of this Agreement, or Western Europe (defined herein as the United Kingdom, Ireland, France,\nGermany, Italy, S witzerland, Spain, Portugal, S weden, Denmark and Norway only) for 24 months from the date of execution of this Agreement.\n(5) In consideration of the payment set forth in paragraph one (1) above, and for other good and valuable consideration, the receipt of which is hereby\nacknowledged, the Company, together with its affiliates, subsidiaries, parents, shareholders, officers, principals, employees, directors, agents, insurers, attorneys,\nand assigns fully, finally, and completely releases, quitclaims and discharges Zaller, Imagine and Kingsmen, their predecessors and successors, present and\nformer affiliates, subsidiaries, legal representatives, heirs, spouses, executors, administrators, insurers, employees, officers, directors, shareholders, attorneys,\nindependent contractors and agents from each and every present, past or future claim, debt, demand, judgment, cause of action, rights, damages, costs or suits,\nresponsibility and liability of every kind and character whatsoever, known or unknown, suspected or unsuspected, now existing,\n4\nwhether based on statute, federal law, common law, international law, tort, contract, or any other theory of recovery, pertaining to all matters which are, have been or may have been or could have been the subject of\nand/or in connection with the Federal Court Action, the Florida Action, the Singapore Action or arising out of and/or in connection with any RMST Exhibition, and from any and all alleged breaches and damages\nbetween the parties, which existed up to the date of execution of this Agreement. Further or additionally, the Company shall write to Las Vegas Sands Corporation, the Venetian in Macau and Marina Bay Sands in\nSingapore notifying them that the disputes between the Company and Zaller/imagine/Kingsmen have been fully and finally resolved with Zaller, Imagine and Kingsmen denying any liability to the Company and\nmaking no admissions with respect to the resolution of the dispute ("the Sands Letter"). A draft of the Sands Letter shal first be sent to Zaller, Imagine and Kingsmen prior to it being sent and within seven (7) days of\nthe date of payment set forth in paragraph 1. The Sands Letter shal be sent by the Company within seven (7) days of approval of the draft by Zaller, Imagine and Kingsmen.\n(6) As a required condition of this settlement, the Company agrees to dismiss with prejudice the Federal Court Action, and the counterclaim in the Singapore\nAction, within five (5) days of receipt of the payment described in paragraph one (1) above, and covenants not to sue Zaller, Imagine and Kingsmen for the\nreleased claims set out in this Agreement and/or for any claims alleged or which could have been alleged in the Federal Court Action, the Florida Action, the\nSingapore Action, or which existed up to the date of execution of this Agreement whether known or unknown.\n(7) In consideration of the dismissal of the Federal Court Action, the counterclaim in the Singapore Action, the aforesaid releases, and other good and valuable\nconsideration, Zaller, Imagine and Kingsmen, and their heirs, spouses, executors, administrators, affiliated companies,\n5\nsubsidiaries, current and former officers, directors, managers, shareholders, members, employees, agents, attorneys, and their insurers, representatives, successors and assigns, do fully and finally, completely\nrelease, quitclaim and discharge the Company, its predecessors and successors, present and former affiliates, subsidiaries, officers, directors, shareholders, members, employees, attorneys, insurers, and agents\nfrom each and every present, past or future claim, debt, demand, judgment, cause of action, rights, damages, costs, or suits, responsibility and liability of every kind and character whatsoever, known or unknown,\nsuspected or unsuspected, now existing, whether based on statute, federal law, common law, international law, tort, contract, or any other theory of recovery, pertaining to the Company, including as to the RMST\nExhibitions, and for all actions or inactions including, but not limited to, all claims and counts set forth in the Singapore Action, and/or arising out of or otherwise related to the incident(s) referenced in the\nabove-identified litigation, including without limitation, all rights or claims that also could have been asserted in the Federal Court Action, the Florida Action, or the Singapore Action, and from all alleged breaches and\ndamages between the parties which existed up to the date of execution of this Agreement, whether known or unknown. Kingsmen further agrees that, within five (5) days of execution of this Agreement, it wil together\nwith the Company's Singapore lawyers, dismiss with prejudice its claims and the Company's counterclaims in the ingapore Action, each party therein to bear its own costs and attorneys fees.\n(8) As a required condition of this settlement, the Company agrees to dismiss with prejudice all claims alleged against Kingsmen in its Counterclaim in the\nSingapore Action, and covenants not to sue Kingsmen for the released claims and/or any claims alleged or which could have been alleged in the Florida Action\nor\nthe ingapore Action, or which existed up to the date\n6\nof execution of this Agreement, and/or in connection with the matters set out therein (including in the preamble of this Agreement) whether known or unknown.\n(9) The P arties further agree that irrespective of any prior rulings or orders they shall bear their own costs, attorneys' fees and litigation expenses.\n(10) The Parties agree to assume full responsibility for and to indemnify and hold each other harmless from any and all liability for claims or liens which are, or\nmay be, asserted against them which arise out of or otherwise relate to their alleged obligations incurred after commencement of the Federal Action, including,\nbut not limited to, claims or liens for legal, expert witness or any other services rendered or provided to or on behalf of the parties or otherwise arising out of or by\noperation of statute or common law.\n(11) Zaller, Imagine and Kingsmen do not admit, but rather expressly deny, the allegations of liability and/or wrongdoing set forth against them in the Federal\nAction, the Florida Action and the Singapore Action, and the aforesaid monetary consideration is paid in compromise of a disputed claim or claims in order\nto\navoid the expenses of further investigation and litigation.\n(12) The Parties represent and warrant that they have not conveyed, transferred, pledged, hypothecated, or in any manner whatsoever assigned or encumbered\nany of the claims set forth or which could have been set forth in the Federal Action, the Florida Action and the Singapore Action.\n(13) The undersigned specifically authorize and direct R obert S. Thompson, Esquire and obert W. McF arland, Esquire, or their designees, to execute orders\ndismissing the ederal Court Action with prejudice, and further direct the law firm of TSMP Law Corporation and\n7\nCherrin Wong and the law firm of Rajah Tann, to execute all documents necessary to dismiss with prejudice the Claims and Counterclaim in the Singapore Action.\n(14) As a material inducement to enter this settlement, the Parties have agreed and do agree that the nature, terms and conditions of this Agreement are strictly\nconfidential and shall not in the future be disclosed, other than to the following: (A) the Parties to this Agreement and any subsidiary, affiliate, associate, employee\nor parent companies and their insurers, reinsurers, auditors, accountants and attorneys, to further the legitimate business purposes of such Parties (B) between\nand amongst the arties in connection with the required notices and other proceedings set forth in this Agreement; (C) the Internal evenue Service, or any other\nstate, federal, or local governmental taxing authority, in connection with tax returns, amendments or related documents; (D the Securities and Exchange\nCommission ("SEC") in such filings as the Company is required to provide, and such SEC disclosures may state that the F ederal Action has been resolved by\nagreement of the parties therein, and that the Company is receiving funds from the settlement without any admissions of fault or liability, and shall further state\nthat the Singapore Action has been dismissed by agreement of Kingsmen and the Company; and that Zaller, Imagine and Kingsmen deny any liability to\nthe\nCompany (E) any person designated pursuant to an order from a court of competent jurisdiction, or as may otherwise be required by law, provided that the\ndisclosing Party shal make reasonable efforts to have this Agreement covered by protective order limiting dissemination to those involved in such proceedings;\n(F) in the event of a dispute or other litigation between any of the arties involving the provisions of this Agreement, but in such event the disclosure shall be\nunder terms that preserve the confidentiality of the information disclosed; (G) the Singapore xchange ("SGX") in such filings as Kingsmen is required to provide\nbut such SGX disclosure shal be limited to a bare or simple\n8\nstatement relating to the outcome of the Singapore Action and if relevant, that the Company denies any liability to Kingsmen and vice versa or (H) the Parties agree in writing to the specific disclosure. To the extent\nnecessary, the Parties assign a value of $500.00 of the total consideration for this Agreement.\n(15) Each of the arties further agrees that they wil not say or do anything that would or could be construed to defame, libel or disparage the reputation of any of\nthe other arties, except as required by law. The arties further agree that they wil require their respective employees who have knowledge of the existence and\nterms of this Agreement, for so long as they remain employees, to not say or do anything that would or could be reasonably construed to defame, libe or\ndisparage the reputation of any of the other Parties, except as required by law. Nothing contained herein shall prevent any Party from providing truthful testimony\nin court, administrative hearings, arbitration, discovery responses, depositions, or as otherwise required by law.\n(16) This Agreement contains the entire agreement between the parties hereto, regarding the issues and disputes which have arisen in the Federa Action, the\nFlorida Action and the Singapore Action, and all other related matters regarding the rights, duties and obligations under the aforementioned matters, and no\npromise, inducement, agreement or other consideration not herein expressed has been made between the parties. It is expressly understood and agreed that\nthis Agreement may not be altered, amended, modified or otherwise changed in any respect or particular whatsoever, except by a writing duly executed by an\nauthorized representative of each of the Parties.\n(17) The undersigned acknowledge that they have read the foregoing provisions of this document before executing it and that they understand its provisions,\nor\nhave made any\n9\nnecessary inquiries to understand its provisions. Further, the undersigned have been advised by counsel of their choice of the advisability of accepting the settlement herein set out. The persons executing this\nAgreement for the Company, Imagine, and Kingsmen affirm, respectively, that they possess authority to execute this Agreement on the entity's behalf. As between the Company, and Zaller and Imagine this\nAgreement shal be deemed to have been made and entered into in the State of Georgia, and shall in all respects be interpreted, enforced and governed under the laws of the State of Georgia, without regard to\nconflicts of laws principles or choice of law provisions. The language of all parts of this Agreement shall be construed as a whole, according to its plain meaning, and not be interpreted or construed against or for any\nof the Parties. Any dispute and/or difference between the Company and Kingsmen arising out of and/or in connection with this Agreement (including but not limited to any questions regarding its existence, effect,\nvalidity and/or termination) shall be referred to and finally resolved by international arbitration in Singapore in accordance with the Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time\nbeing in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of a single arbitrator appointed by the Chairman of the SIAC The language of the arbitration shall be\nEnglish The prevailing party in any action or proceedings brought to enforce and/or because of an alleged breach of this Agreement shall be entitled to recovery of its costs and attorneys fees incurred in the action.\nAs between the Company and Kingsmen, any dispute arising under and/or in connection with this Agreement shall be governed solely and only by the laws of the Republic of Singapore (excluding private international\nlaw considerations) as if both the Company and Kingsmen and the transaction are domiciled in the Republic of Singapore.\n10\n(18) Should any provision of this Agreement be held by a court or tribunal of competent jurisdiction to be unenforceable, or enforceable only if modified, that\nholding shal not affect the validity of the remainder of this Agreement, the balance of which shal continue to be binding upon the parties, with any modification to\nbecome a part hereof and treated as though contained in this original Agreement.\n(19) Zaller, Imagine and the Company consent to personal jurisdiction and venue in connection with any alleged breach of this Agreement in the United States\nDistrict Court for the Northern District of Georgia, Atlanta Division, or an appropriate state court forum for Atlanta, eorgia. This Agreement shal be binding\nupon, and inure to the benefit of the successors and assigns of the parties. The prevailing party in any action brought to enforce and/or because of an alleged\nbreach of this Agreement shal be entitled to recovery of its costs and attorneys' fees incurred in the action.\n(20) This Agreement shall be effective whether executed as a single document or in counterparts, and taken together shal be deemed a single binding and\nenforceable instrument. True copies of this Agreement have the same force and effect as an original.\nTHE UNDERSIGNED HAVE READ THIS RELEASE, UNDERSTANDS IT FULLY, AND SIGNS IT VOLUNTARILY, WITH THE INTENT TO BE LEGALLY BOUND\nTHEREBY.\nIN WITNESS WHEREOF, we do hereby set our hands and seals.\n(1) IMAGINE EXHIBITIONS, INC. a Georgia corporation\nBy:\nTitle:\nDate:\n11\n(2)\nIMAGINE EXHIBITIONS, INC., a Nevada corporation\nBy:\nTitle:\nDate:\n(3) IMAGINE EXHIBITIONS PTE, Ltd.\nBy:\nTitle:\nDate:\n(4)\nTZ, Inc.\nBy:\nTitle:\nDate:\n(5) THOMAS ZALLER\n(6) PREMIER EXHIBITIONS, INC.\nBy:\nTitle:\nDate:\n12\n(7)\nRMS TITANIC, INC.\nBy:\nTitle:\nDate:\n(8)\nKINGSMEN EXHIBITS PTE, LTD.\nBy:\nTitle:\nDate:\n(9)\nKINGSMEN CREATIVES LTD.\nBy:\nTitle\nDate:\n13	EXHIBIT 10.1\nFULL AND GENERAL MUTUAL RELEASE,\nSETTLEMENT AND CONFIDENTIALITY AGREEMENT\nThis FULL AND GENERAL RELEASE, , Settlement and Confidentiality Agreement (hereinafter this “Agreement”) is entered into between RMS TITANIC, INC .\n(“RMST”) and PREMIER EXHIBITIONS, INC . (“Premier”, and hereinafter collectively with RMST referred to as “the Company”) , and THOMAS ZALLER\n(“Zaller”) , IMAGINE EXHIBITIONS , INC. , a Georgia corporation (“Imagine-Georgia”), IMAGINE EXHIBITIONS , INC. , a Nevada corporation (“Imagine-Nevada”),\nIMAGINE EXHIBITIONS PTE, LTD . (“Imagine PTE”) , and TZ, INC . (collectively, “Imagine”) and KINGSMEN EXHIBITS PTE LTD. and its parent company,\nKINGSMEN CREATIVE, LTD . (collectively “Kingsmen”) and altogether collectively referred to as the “Parties. ”\nWHEREAS, RMST and Premier, are Florida corporations whose principal places of business are in Atlanta, Georgia, and who present museum quality exhibitions\nfeaturing artifacts recovered from the wreck site of the RMS Titanic (“the RMST Exhibition”); and\nWHEREAS, on or about June 13, 2011 the Company entered into an agreement to present the RMST Exhibition in Singapore;\nWHEREAS, Zaller is a former employee of the Company who resides in Atlanta, Georgia, and who is the CEO and sole shareholder for Imagine-Georgia,\nImagine-Nevada, Imagine PTE, and TZ, Inc. (collectively, “Imagine”), which companies are engaged in the entertainment business, and, among other things,\nprovide exhibitions at museums and other public venues, including their own Titanic exhibition (“the Imagine Exhibition”); and\nWHEREAS, Kingsmen are Singapore companies whose business operations include the design, production and construction of interiors, including for exhibitions;\nand,\nWHEREAS, RMST, TZ, Inc. , Imagine PTE, Zaller and Kingsmen were all involved in the staging and presentation of the RMST Exhibition in Singapore in 2011\nand 2012, and during which time RMST alleges that it provided Zaller and Kingsmen certain trade secrets, intellectual property and other confidential and\nproprietary information solely for use in the Singapore exhibition; and\nWHEREAS, following the period when the RMST Exhibition was being presented in Singapore, Imagine-PTE and Kingsmen entered into an agreement for the\npresentation of the Imagine Exhibition in Macau, and presented the Imagine Exhibition in Macau on or about October 22, 2012 through March 31, 2013; and\nWHEREAS, a dispute exists between the parties as to whether Zaller, Imagine and Kingsmen misappropriated and used trade secrets, intellectual property,\nand/or proprietary information of the Company, and improperly copied the trade dress of the RMST Exhibition in the Imagine Exhibition; and\nWHEREAS, Imagine, Zaller and Kingsmen have denied that they have misappropriated or used any trade secrets, intellectual property and/or proprietary\ninformation that the Company claims to own and have continued to market and promote their Imagine Exhibition throughout the world (the “Existing Imagine\nExhibition”); and\nWHEREAS, the Company filed a civil action in the United States District Court for the Northern District of Georgia, Atlanta Division (“the Federal Action”) , against\nZaller and Imagine (Civil Action No. 1:13cv-00625 -WSD) alleging, among other things, breach of contract, fraud and fraudulent inducement, trade dress and\nLanham Act violations, and misappropriation of trade secrets; and\n2\nWHEREAS, Kingsmen instituted a civil action in the High Court of the Republic of Singapore (Suit No.: 365 of 2013) against the Company (“the Singapore\nAction”), alleging that Kingsmen has not infringed or improperly used any of the Company’s trademarks, trade dress, trade secrets or other intellectual property;\nand\nWHEREAS, the Company filed a civil action in the United States District Court for the Middle District of Florida, Jacksonville Division, against Kingsmen (Case\nNo. 3:13-cv-463-J -20-TEM), ( “the Florida Action”), alleging similar claims but which case has been dismissed; and\nWHEREAS, the Company has filed a counterclaim in the Singapore Action seeking recovery for damages allegedly sustained from Kingsmen’s activities, and\nWHEREAS, Zaller and Imagine deny the allegations asserted against them by the Company, including but not limited to those allegations asserted in the Federal\nAction; and\nWHEREAS, all the parties referenced herein now wish to settle any and all differences and controversies between them, including those set forth, or which could\nhave been set forth in the Federal Action, the Florida Action and the Singapore Action\n(1) NOW THEREFORE, in consideration of the covenants, conditions and promises set forth herein and for other good and valuable consideration, the receipt\nand sufficiency and delivery of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: Imagine (on its own account\nand/or on behalf of any other party or person, including but not limited to insurers) shall pay to the Company, the sum of Seven Hundred Twenty-Five Thousand\nDollars ($725,000). The sum stated above is the sole monetary consideration for this release. The monetary consideration shall be paid as follows: $725,000 by\ncertified check(s) and/or wire transfers to the Company on or before November 30, 2014. Zaller, Imagine and Kingsmen, and their insurers and counsel, make no\nrepresentations or warranties as\n3\nto the tax treatment, implications or consequences to the Company from these payments; and the Company assumes full responsibility for the tax consequences of these payments, if any.\n(2) Kingsmen agrees, represents and warrants that it shall not exhibit or participate in any Titanic-themed exhibition with Zaller or Imagine (excluding the Existing\nImagine Exhibition) anywhere for 24 months from the date of execution of this Agreement.\n(3) Zaller and Imagine agree, represent and warrant that they will not engage or participate in any Titanic-themed exhibitions (excluding the Existing Imagine\nExhibition) for 24 months from the date of execution of this Agreement\n(4) Zaller and Imagine agree, represent and warrant that they will not stage a Titanic-themed Exhibition, including the Existing Imagine Exhibition, in the United\nStates or Canada for 36 months from the date of execution of this Agreement, or Western Europe (defined herein as the United Kingdom, Ireland, France,\nGermany, Italy, Switzerland, Spain, Portugal, Sweden, Denmark and Norway only) for 24 months from the date of execution of this Agreement.\n(5) In consideration of the payment set forth in paragraph one (1) above, and for other good and valuable consideration, the receipt of which is hereby\nacknowledged, the Company, together with its affiliates, subsidiaries, parents, shareholders, officers, principals, employees, directors, agents, insurers, attorneys,\nand assigns fully, finally, and completely releases, quitclaims and discharges Zaller, Imagine and Kingsmen, their predecessors and successors, present and\nformer affiliates, subsidiaries, legal representatives, heirs, spouses, executors, administrators, insurers, employees, officers, directors, shareholders, attorneys,\nindependent contractors and agents from each and every present, past or future claim, debt, demand, judgment, cause of action, rights, damages, costs or suits,\nresponsibility and liability of every kind and character whatsoever, known or unknown, suspected or unsuspected, now existing,\n4\nwhether based on statute, federal law, common law, international law, tort, contract, or any other theory of recovery, pertaining to all matters which are, have been or may have been or could have been the subject of\nand/or in connection with the Federal Court Action, the Florida Action, the Singapore Action or arising out of and/or in connection with any RMST Exhibition, and from any and all alleged breaches and damages\nbetween the parties, which existed up to the date of execution of this Agreement. Further or additionally, the Company shall write to Las Vegas Sands Corporation, the Venetian in Macau and Marina Bay Sands in\nSingapore notifying them that the disputes between the Company and Zaller/Imagine/Kingsmen have been fully and finally resolved with Zaller, Imagine and Kingsmen denying any liability to the Company and\nmaking no admissions with respect to the resolution of the dispute (“the Sands Letter”). A draft of the Sands Letter shall first be sent to Zaller, Imagine and Kingsmen prior to it being sent and within seven (7) days of\nthe date of payment set forth in paragraph 1. The Sands Letter shall be sent by the Company within seven (7) days of approval of the draft by Zaller, Imagine and Kingsmen.\n(6) As a required condition of this settlement, the Company agrees to dismiss with prejudice the Federal Court Action, and the counterclaim in the Singapore\nAction, within five (5) days of receipt of the payment described in paragraph one (1) above, and covenants not to sue Zaller, Imagine and Kingsmen for the\nreleased claims set out in this Agreement and/or for any claims alleged or which could have been alleged in the Federal Court Action, the Florida Action, the\nSingapore Action, or which existed up to the date of execution of this Agreement whether known or unknown.\n(7) In consideration of the dismissal of the Federal Court Action, the counterclaim in the Singapore Action, the aforesaid releases, and other good and valuable\nconsideration, Zaller, Imagine and Kingsmen, and their heirs, spouses, executors, administrators, affiliated companies,\n5\nsubsidiaries, current and former officers, directors, managers, shareholders, members, employees, agents, attorneys, and their insurers, representatives, successors and assigns, do fully and finally, completely\nrelease, quitclaim and discharge the Company, its predecessors and successors, present and former affiliates, subsidiaries, officers, directors, shareholders, members, employees, attorneys, insurers, and agents\nfrom each and every present, past or future claim, debt, demand, judgment, cause of action, rights, damages, costs, or suits, responsibility and liability of every kind and character whatsoever, known or unknown,\nsuspected or unsuspected, now existing, whether based on statute, federal law, common law, international law, tort, contract, or any other theory of recovery, pertaining to the Company, including as to the RMST\nExhibitions, and for all actions or inactions including, but not limited to, all claims and counts set forth in the Singapore Action, and/or arising out of or otherwise related to the incident(s) referenced in the\nabove-identified litigation, including without limitation, all rights or claims that also could have been asserted in the Federal Court Action, the Florida Action, or the Singapore Action, and from all alleged breaches and\ndamages between the parties which existed up to the date of execution of this Agreement, whether known or unknown. Kingsmen further agrees that, within five (5) days of execution of this Agreement, it will together\nwith the Company’s Singapore lawyers, dismiss with prejudice its claims and the Company’s counterclaims in the Singapore Action, each party therein to bear its own costs and attorneys’ fees.\n(8) As a required condition of this settlement, the Company agrees to dismiss with prejudice all claims alleged against Kingsmen in its Counterclaim in the\nSingapore Action, and covenants not to sue Kingsmen for the released claims and/or any claims alleged or which could have been alleged in the Florida Action or\nthe Singapore Action, or which existed up to the date\n6\nof execution of this Agreement, and/or in connection with the matters set out therein (including in the preamble of this Agreement) whether known or unknown.\n(9) The Parties further agree that irrespective of any prior rulings or orders , they shall bear their own costs, attorneys’ fees and litigation expenses.\n(10) The Parties agree to assume full responsibility for and to indemnify and hold each other harmless from any and all liability for claims or liens which are, or\nmay be, asserted against them which arise out of or otherwise relate to their alleged obligations incurred after commencement of the Federal Action, including,\nbut not limited to, claims or liens for legal, expert witness or any other services rendered or provided to or on behalf of the parties or otherwise arising out of or by\noperation of statute or common law.\n(11) Zaller, Imagine and Kingsmen do not admit, but rather expressly deny, the allegations of liability and/or wrongdoing set forth against them in the Federal\nAction, the Florida Action and the Singapore Action, and the aforesaid monetary consideration is paid in compromise of a disputed claim or claims in order to\navoid the expenses of further investigation and litigation.\n(12) The Parties represent and warrant that they have not conveyed, transferred, pledged, hypothecated, or in any manner whatsoever assigned or encumbered\nany of the claims set forth or which could have been set forth in the Federal Action, the Florida Action and the Singapore Action.\n(13) The undersigned specifically authorize and direct Robert S. Thompson, Esquire and Robert W. McFarland, Esquire, or their designees, to execute orders\ndismissing the Federal Court Action with prejudice, and further direct the law firm of TSMP Law Corporation and\n7\nCherrin Wong and the law firm of Rajah Tann, to execute all documents necessary to dismiss with prejudice the Claims and Counterclaim in the Singapore Action.\n(14) As a material inducement to enter this settlement, the Parties have agreed and do agree that the nature, terms and conditions of this Agreement are strictly\nconfidential and shall not in the future be disclosed, other than to the following: (A) the Parties to this Agreement and any subsidiary, affiliate, associate, employee\nor parent companies and their insurers, reinsurers, auditors, accountants and attorneys, to further the legitimate business purposes of such Parties; (B) between\nand amongst the Parties in connection with the required notices and other proceedings set forth in this Agreement; (C) the Internal Revenue Service, or any other\nstate, federal, or local governmental taxing authority, in connection with tax returns, amendments or related documents; (D) the Securities and Exchange\nCommission (“SEC”) in such filings as the Company is required to provide, and such SEC disclosures may state that the Federal Action has been resolved by\nagreement of the parties therein, and that the Company is receiving funds from the settlement without any admissions of fault or liability, and shall further state\nthat the Singapore Action has been dismissed by agreement of Kingsmen and the Company; and that Zaller, Imagine and Kingsmen deny any liability to the\nCompany ; (E) any person designated pursuant to an order from a court of competent jurisdiction, or as may otherwise be required by law, provided that the\ndisclosing Party shall make reasonable efforts to have this Agreement covered by protective order limiting dissemination to those involved in such proceedings;\n(F) in the event of a dispute or other litigation between any of the Parties involving the provisions of this Agreement, but in such event the disclosure shall be\nunder terms that preserve the confidentiality of the information disclosed; (G) the Singapore Exchange (“SGX ”) in such filings as Kingsmen is required to provide\nbut such SGX disclosure shall be limited to a bare or simple\n8\nstatement relating to the outcome of the Singapore Action and, if relevant, that the Company denies any liability to Kingsmen and vice versa or (H) the Parties agree in writing to the specific disclosure. To the extent\nnecessary, the Parties assign a value of $500.00 of the total consideration for this Agreement.\n(15) Each of the Parties further agrees that they will not say or do anything that would or could be construed to defame, libel or disparage the reputation of any of\nthe other Parties, except as required by law. The Parties further agree that they will require their respective employees who have knowledge of the existence and\nterms of this Agreement, for so long as they remain employees, to not say or do anything that would or could be reasonably construed to defame, libel or\ndisparage the reputation of any of the other Parties, except as required by law. Nothing contained herein shall prevent any Party from providing truthful testimony\nin court, administrative hearings, arbitration, discovery responses, depositions, or as otherwise required by law.\n(16) This Agreement contains the entire agreement between the parties hereto, regarding the issues and disputes which have arisen in the Federal Action, the\nFlorida Action and the Singapore Action, and all other related matters regarding the rights, duties and obligations under the aforementioned matters, and no\npromise, inducement, agreement or other consideration not herein expressed has been made between the parties. It is expressly understood and agreed that\nthis Agreement may not be altered, amended, modified or otherwise changed in any respect or particular whatsoever, except by a writing duly executed by an\nauthorized representative of each of the Parties.\n(17) The undersigned acknowledge that they have read the foregoing provisions of this document before executing it and that they understand its provisions, or\nhave made any\n9\nnecessary inquiries to understand its provisions. Further, the undersigned have been advised by counsel of their choice of the advisability of accepting the settlement herein set out. The persons executing this\nAgreement for the Company, Imagine, and Kingsmen affirm, respectively, that they possess authority to execute this Agreement on the entity’s behalf. As between the Company, and Zaller and Imagine, this\nAgreement shall be deemed to have been made and entered into in the State of Georgia, and shall in all respects be interpreted, enforced and governed under the laws of the State of Georgia, without regard to\nconflicts of laws principles or choice of law provisions. The language of all parts of this Agreement shall be construed as a whole, according to its plain meaning, and not be interpreted or construed against or for any\nof the Parties. Any dispute and/or difference between the Company and Kingsmen arising out of and/or in connection with this Agreement (including but not limited to any questions regarding its existence, effect,\nvalidity and/or termination) shall be referred to and finally resolved by international arbitration in Singapore in accordance with the Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time\nbeing in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of a single arbitrator appointed by the Chairman of the SIAC. The language of the arbitration shall be\nEnglish. The prevailing party in any action or proceedings brought to enforce and/or because of an alleged breach of this Agreement shall be entitled to recovery of its costs and attorneys’ fees incurred in the action.\nAs between the Company and Kingsmen, any dispute arising under and/or in connection with this Agreement shall be governed solely and only by the laws of the Republic of Singapore (excluding private international\nlaw considerations) as if both the Company and Kingsmen and the transaction are domiciled in the Republic of Singapore.\n10\n(18) Should any provision of this Agreement be held by a court or tribunal of competent jurisdiction to be unenforceable, or enforceable only if modified, that\nholding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties, with any modification to\nbecome a part hereof and treated as though contained in this original Agreement.\n(19) Zaller, Imagine and the Company consent to personal jurisdiction and venue in connection with any alleged breach of this Agreement in the United States\nDistrict Court for the Northern District of Georgia, Atlanta Division, or an appropriate state court forum for Atlanta, Georgia. This Agreement shall be binding\nupon, and inure to the benefit of the successors and assigns of the parties. The prevailing party in any action brought to enforce and/or because of an alleged\nbreach of this Agreement shall be entitled to recovery of its costs and attorneys’ fees incurred in the action.\n(20) This Agreement shall be effective whether executed as a single document or in counterparts, and taken together shall be deemed a single binding and\nenforceable instrument. True copies of this Agreement have the same force and effect as an original.\nTHE UNDERSIGNED HAVE READ THIS RELEASE, UNDERSTANDS IT FULLY , AND SIGNS IT VOLUNTARILY, WITH THE INTENT TO BE LEGALLY BOUND\nTHEREBY.\nIN WITNESS WHEREOF, we do hereby set our hands and seals.\n(1) IMAGINE EXHIBITIONS, INC ., a Georgia corporation\nBy:\nTitle:\nDate:\n11\n(2) IMAGINE EXHIBITIONS, INC ., a Nevada corporation\nBy:\nTitle:\nDate:\n(3) IMAGINE EXHIBITIONS PTE, Ltd.\nBy:\nTitle:\nDate:\n(4) TZ, Inc.\nBy:\nTitle:\nDate:\n(5) THOMAS ZALLER\n(6) PREMIER EXHIBITIONS, INC.\nBy:\nTitle:\nDate:\n12\n(7)\nRMS TITANIC, INC .\nBy:\nTitle:\nDate:\n(8)\nKINGSMEN EXHIBITS PTE, LTD .\nBy:\nTitle:\nDate:\n(9)\nKINGSMEN CREATIVES LTD.\nBy:\nTitle:\nDate:\n13
2a6a8d166f62b6920a894a34d853e0c1.pdf	effective_date jurisdiction party term	EX-99.D.3 8 d818960dex99d3.htm EX-99 .D.3\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated April 15, 2014 (the “Effective Date”), between World Energy Solutions, Inc., a\nDelaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, Massachusetts 01608 and EnerNOC, Inc., a Delaware\ncorporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”).\n1. Background. World Energy and ENOC (the “parties”) intend to engage in discussions and negotiations concerning a possible transaction\nor business relationship between them. In the course of such discussions and negotiations and in the course of any such transaction or business\nrelationship, it is anticipated that each party will disclose or deliver to the other party and to the other party’s directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and members of advisory\nboards) (collectively, “Representatives”) certain of its trade secrets or confidential or proprietary information for the purposes of enabling the\nother party to evaluate the feasibility of such transaction or business relationship and to perform its obligations and exercise its rights under any\nsuch transaction or business relationship that is agreed to between the parties (the “Purposes”). The parties have entered into this Agreement in\norder to assure the confidentiality of such trade secrets and confidential or proprietary information in accordance with the terms of this\nAgreement. As used in this Agreement, the party disclosing Proprietary Information (as defined below) is referred to as the “Disclosing Party”;\nthe party receiving such Proprietary Information is referred to as the “Recipient”.\n2. Proprietary Information. As used in this Agreement, the term “Proprietary Information” shall mean all trade secrets or confidential or\nproprietary information designated as such in writing by the Disclosing Party, whether by letter or by the use of an appropriate proprietary stamp\nor legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the Disclosing Party to the\nRecipient. Notwithstanding the foregoing, information which is orally or visually disclosed to the Recipient by the Disclosing Party, or is\ndisclosed in writing without an appropriate letter, proprietary stamp or legend, shall constitute Proprietary Information if it would be apparent to\na reasonable person, familiar with the Disclosing Party’s business and the industry in which it operates, that such information is of a confidential\nor proprietary nature the maintenance of which is important to the Disclosing Party. In addition, the term “Proprietary Information” shall be\ndeemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its\nRepresentatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its\nRepresentatives pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the parties\nconcerning the possible transaction or business relationship.\n3. Use and Disclosure of Proprietary Information. The Recipient and its Representatives shall use the Proprietary Information of the\nDisclosing Party only for the Purposes and such Proprietary Information shall not be used for any other purpose without the prior written consent\nof the Disclosing Party. The Recipient and its Representatives shall hold in confidence, and shall not disclose any Proprietary Information of the\nDisclosing Party; provided. however, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its\nprior written consent; and (ii) any of the Proprietary Information may\nbe disclosed by the Recipient to its Representatives who need to know such information in connection with the Purposes and who are informed\nof the confidential nature of such information and of the terms of this Agreement. In any event, the Recipient shall be responsible for any breach\nof this Agreement by any of its Representatives, and agrees, at its sole expense, to take reasonable measures to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Proprietary Information, Notwithstanding anything contained in this Agreement to the\ncontrary, this Agreement shall not prohibit the Recipient from disclosing Proprietary Information of the Disclosing Party to the extent required in\norder for the Recipient to comply with applicable laws and regulations, provided that the Recipient provides prior written notice of such required\ndisclosure to the Disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.\n4. Limitation on Obligations. The obligations of the Recipient specified in Section 3 above shall not apply, and the Recipient shall have no\nfurther obligations, with respect to any Proprietary Information to the extent that such Proprietary Information:\n(a) is generally known to the public at the time of disclosure or becomes generally known without Recipient or its Representatives\nviolating this Agreement;\n(b) is in the Recipient’s possession at the time of disclosure;\n(c) becomes known to the Recipient through disclosure by sources other than the Disclosing Party without such sources violating any\nconfidentiality obligations to the Disclosing Party; or\n(d) is independently developed by the Recipient without reference to or reliance upon the Disclosing Party’s Proprietary Information.\n5. Ownership of Proprietary Information. The Recipient agrees that it shall not receive any right, title or interest in, or any license or right\nto use, the Disclosing Party’s Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights\ntherein, by implication or otherwise. Each of the parties hereto represents, warrants and covenants that the trade secrets which it discloses to the\nother party pursuant to this Agreement have not been stolen, appropriated, obtained or converted without authorization.\n6. Return of Proprietary Information. The Recipient shall, upon the written request of the Disclosing Party, return to the Disclosing Party all\nProprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and reproductions thereof). In\naddition, the Recipient shall destroy: (i) any notes, reports or other documents prepared by the Recipient which contain Proprietary Information\nof the Disclosing Party; and (ii) any Proprietary Information of the Disclosing Party (and all copies and reproductions thereof) which is in\nelectronic form or cannot otherwise be returned to the Disclosing Party. Alternatively, upon written request of the Disclosing Party, the Recipient\nshall destroy all Proprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and\nreproduction thereof) and any notes, reports or other documents prepared by the Recipient which contain Proprietary Information of the\nDisclosing Party. Notwithstanding the return or destruction of the Proprietary Information, the Recipient and its Representatives will continue to\nbe bound by their obligations of confidentiality and other obligations hereunder.\n-\n2-\n7. Securities. Recipient represents that it is aware, and will advise its representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the applicable federal and state securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information regarding a company with publicly traded securities, as well as the restrictions making it\nunlawful to communicate such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or\nsell securities in reliance upon such information.\n8. Non-Solicitation of Employees Covenant. Each party agrees that during the term of this Agreement and for the period of two (2) years\nafter the termination of this Agreement, it will not, either directly or through others solicit or attempt to solicit any employee of the other party\nwith whom such party came into contact with during the evaluation of a possible transaction between the parties to become an employee,\nconsultant or independent contractor to or for itself or any of its affiliates; provided,-however, that nothing contained herein shall be deemed to\nprohibit any party, either directly or through others, from (i) conducting any general solicitation not specifically targeted at any such employee,\nand, for the avoidance of doubt, the hiring or engagement by a party of any employee of the other party who responds to such general advertising\nor who approaches such party or any of its affiliates without any solicitation or inducement to leave the employ of the other party or any of its\naffiliates shall not be deemed a breach of this Section 8, or (ii) soliciting for employment or hiring any employee of the other party or any of its\naffiliates who was terminated by the other party or any of its affiliates; each subject to such employee’s restrictive covenants\n9. Miscellaneous.\n(a) This Agreement supersedes all prior agreements, written or oral, between the parties relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by the\nparties.\n(b) This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Agreement shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Agreement will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n-\n3-\n(e) The confidentiality obligations imposed by this Agreement shall continue with respect to a particular item of Proprietary\nInformation until the fifth anniversary of the disclosure of such Proprietary Information to Recipient pursuant to this Agreement; provided,\nhowever, that the confidentiality obligations imposed by this Agreement with respect to source code included in the Proprietary Information shall\ncontinue in perpetuity.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be\ndeemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Matthew J. Cushing\nName: Philip V. Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: General Counsel & VP.\nDate: 4/15/14\nDate: April 15, 2014\n-\n4-\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (the “Amendment”), dated June 11, 2014, between World Energy Solutions, Inc., a\nDelaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a Delaware corporation\nlocated at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-Disclosure Agreement\ndated April 15, 2014 between World Energy and ENOC (the “Original Agreement”). Capitalized terms used but not defined herein shall have the\nrespective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Exclusivity and Standstill. A new section 8 A shall be inserted as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until March 11, 2015 (“Standstill Period”), neither ENOC nor any of its affiliates or its or their respective officers, directors,\ninvestment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the “Representatives”) acting on\nENOC’s behalf will, unless specifically invited in writing by World Energy’s Board of Directors or its duly authorized representative:\n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in, or make any public announcement with respect to, or submit a proposal for, any\ntender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy’s Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy’s equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an “Acquisition Transaction”), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led “process” or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause C(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction by\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the signature of this Amendment No. 1 and ending at 5:30 p.m . in Boston, MA, on June 27, 2014 (the “Exclusivity Period”),\nWorld Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, investment bankers, attorneys\nand other financial advisors (collectively, the “World Energy Representatives”) not to, directly or indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction, or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an “interested stockholder” under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the patties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Neil Moses\nName: Philip V. Adams\nName: Neil Moses\nTitle: CEO\nTitle: COO\nAMENDMENT NO. 2 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 2 to Non-Disclosure Agreement (the “Amendment”), dated August 20, 2014 (the “Effective Date”), between World\nEnergy Solutions, Inc., a Delaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC (the “Original Agreement”). Capitalized terms used but not\ndefined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement, as amended, as follows:\n1. Exclusivity and Standstill. Section 8A shall be amended and restated as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until June 12, 2015 (“Standstill Period”), neither ENOC nor any of its affiliates or its or their respective officers, directors, investment\nbankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the “Representatives”) acting on ENOC’s\nbehalf will, unless specifically invited in writing by World Energy’s Board of Directors or its duly authorized representative:\n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in. or make any public announcement with respect to, or submit a proposal for, any\ntender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy’s Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy’s equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an “Acquisition Transaction”), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led “process” or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause (C)(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction by\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the Effective Date and ending at 5:30 p.m. in Boston, MA, on the forty-fifth day following the Effective Date (the “Exclusivity\nPeriod”), World Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, other employees,\ninvestment bankers, attorneys, financial advisors and other advisors or agents (collectively, the “World Energy Representatives”) not to, directly\nor indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction , or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an “interested stockholder” under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip Adams\nBy: /s/ Matthew J. Cushing\nName: Philip Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: GC & VP\nAMENDMENT NO. 3 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 3 to Non-Disclosure Agreement (the “Amendment”), dated October 3, 2014 (the “Effective Date”), between World\nEnergy Solutions, Inc., a Delaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC, as amended by Amendment No.1 to Non-Disclosure Agreement,\ndated June 12, 2014, and Amendment No.2 to Non-Disclosure Agreement, dated August 20, 2014 (the “Original Agreement”). Capitalized terms\nused but not defined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Non-Solicitation of Employees. Section 8 shall be amended and restated as follows:\nEach party agrees that for the period of two (2) years from the date of the Original Agreement, it will not, either directly or through others,\nhire, solicit, induce or cause, or attempt to hire, solicit, induce or cause, any person who at any time during the term of this Agreement is an\nemployee of, or a consultant or independent contractor regularly providing services to, the other party or its affiliates (each, a “Covered Person”)\nto become an employee of, consultant or independent contractor to or for itself or any of its affiliates; provided, however, that nothing contained\nherein shall be deemed to prohibit any party, either directly or through others, from (i) conducting any general advertising not specifically\ntargeted at any Covered Person, (ii) after the period ending six (6) months following the termination of the Exclusivity Period, as extended herein\nand from time to time hereafter, the hiring or engagement by a party of any Covered Person of the other party who responds to such general\nadvertising (as referenced in clause (i) above) or who approaches such party or any of its affiliates without any solicitation or inducement to\nleave the employ of the other party or any of its affiliates , or (iii) soliciting for employment or hiring any Covered Person of the other party or\nany of its affiliates who was terminated by the other party or any of its affiliates, after the period ending nine (9) months following the\ntermination of such Covered Person by the other party; subject, in each case described in clauses (ii) and (iii), to such Covered Person’s\nrestrictive covenants.\n2. Exclusivity. Notwithstanding anything in the Original Agreement to the contrary, by signing below both parties agree to extend the\nExclusivity Period until 5:30 p.m . in Boston, MA, on October 15, 2014.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Matthew J. Cushing\nName: Philip V. Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: General Counsel & Vice President\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nOctober 15, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the “NDA”). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m . in Boston, MA, on October 31, 2014.\nNo other changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy: /s/ Neil Moses\nName: Neil Moses\nTitle: Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy: /s/ Philip V. Adams\nName: Philip V. Adams\nTitle: CEO\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nNovember 3, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the “NDA”). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m . in Boston, MA, on November 3, 2014.\nNo other changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy: /s/ Neil Moses\nName: Neil Moses\nTitle: Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy: /s/ Philip V. Adams\nName: Philip V. Adams\nTitle: President & Chief Executive Officer	EX-99.D.3 8 d818960dex99d3.htm EX-99.D.3\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated April 15, 2014 (the “Effective Date”), between World Energy Solutions, Inc., a\nDelaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, Massachusetts 01608 and EnerNOC, Inc., a Delaware\ncorporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”).\n1. Background. World Energy and ENOC (the “parties”) intend to engage in discussions and negotiations concerning a possible transaction\nor business relationship between them. In the course of such discussions and negotiations and in the course of any such transaction or business\nrelationship, it is anticipated that each party will disclose or deliver to the other party and to the other party’s directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and members of advisory\nboards) (collectively, “Representatives™) certain of its trade secrets or confidential or proprietary information for the purposes of enabling the\nother party to evaluate the feasibility of such transaction or business relationship and to perform its obligations and exercise its rights under any\nsuch transaction or business relationship that is agreed to between the parties (the “Purposes”). The parties have entered into this Agreement in\norder to assure the confidentiality of such trade secrets and confidential or proprietary information in accordance with the terms of this\nAgreement. As used in this Agreement, the party disclosing Proprietary Information (as defined below) is referred to as the “Disclosing Party”;\nthe party receiving such Proprietary Information is referred to as the “Recipient”.\n2. Proprietary Information. As used in this Agreement, the term “Proprietary Information” shall mean all trade secrets or confidential or\nproprietary information designated as such in writing by the Disclosing Party, whether by letter or by the use of an appropriate proprietary stamp\nor legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the Disclosing Party to the\nRecipient. Notwithstanding the foregoing, information which is orally or visually disclosed to the Recipient by the Disclosing Party, or is\ndisclosed in writing without an appropriate letter, proprietary stamp or legend, shall constitute Proprietary Information if it would be apparent to\nareasonable person, familiar with the Disclosing Party’s business and the industry in which it operates, that such information is of a confidential\nor proprietary nature the maintenance of which is important to the Disclosing Party. In addition, the term “Proprietary Information” shall be\ndeemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its\nRepresentatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its\nRepresentatives pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the parties\nconcerning the possible transaction or business relationship.\n3. Use and Disclosure of Proprietary Information. The Recipient and its Representatives shall use the Proprietary Information of the\nDisclosing Party only for the Purposes and such Proprietary Information shall not be used for any other purpose without the prior written consent\nof the Disclosing Party. The Recipient and its Representatives shall hold in confidence, and shall not disclose any Proprietary Information of the\nDisclosing Party; provided. however, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its\nprior written consent; and (ii) any of the Proprietary Information may\nbe disclosed by the Recipient to its Representatives who need to know such information in connection with the Purposes and who are informed\nof the confidential nature of such information and of the terms of this Agreement. In any event, the Recipient shall be responsible for any breach\nof this Agreement by any of its Representatives, and agrees, at its sole expense, to take reasonable measures to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Proprietary Information, Notwithstanding anything contained in this Agreement to the\ncontrary, this Agreement shall not prohibit the Recipient from disclosing Proprietary Information of the Disclosing Party to the extent required in\norder for the Recipient to comply with applicable laws and regulations, provided that the Recipient provides prior written notice of such required\ndisclosure to the Disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.\n4. Limitation on Obligations. The obligations of the Recipient specified in Section 3 above shall not apply, and the Recipient shall have no\nfurther obligations, with respect to any Proprietary Information to the extent that such Proprietary Information:\n(a) is generally known to the public at the time of disclosure or becomes generally known without Recipient or its Representatives\nviolating this Agreement;\n(b) is in the Recipient’s possession at the time of disclosure;\n(c) becomes known to the Recipient through disclosure by sources other than the Disclosing Party without such sources violating any\nconfidentiality obligations to the Disclosing Party; or\n(d) is independently developed by the Recipient without reference to or reliance upon the Disclosing Party’s Proprietary Information.\n5. Ownership of Proprietary Information. The Recipient agrees that it shall not receive any right, title or interest in, or any license or right\nto use, the Disclosing Party’s Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights\ntherein, by implication or otherwise. Each of the parties hereto represents, warrants and covenants that the trade secrets which it discloses to the\nother party pursuant to this Agreement have not been stolen, appropriated, obtained or converted without authorization.\n6. Return of Proprietary Information. The Recipient shall, upon the written request of the Disclosing Party, return to the Disclosing Party all\nProprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and reproductions thereof). In\naddition, the Recipient shall destroy: (i) any notes, reports or other documents prepared by the Recipient which contain Proprietary Information\nof the Disclosing Party; and (ii) any Proprietary Information of the Disclosing Party (and all copies and reproductions thereof) which is in\nelectronic form or cannot otherwise be returned to the Disclosing Party. Alternatively, upon written request of the Disclosing Party, the Recipient\nshall destroy all Proprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and\nreproduction thereof) and any notes, reports or other documents prepared by the Recipient which contain Proprietary Information of the\nDisclosing Party. Notwithstanding the return or destruction of the Proprietary Information, the Recipient and its Representatives will continue to\nbe bound by their obligations of confidentiality and other obligations hereunder.\n_D.\n7. Securities. Recipient represents that it is aware, and will advise its representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the applicable federal and state securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information regarding a company with publicly traded securities, as well as the restrictions making it\nunlawful to communicate such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or\nsell securities in reliance upon such information.\n8. Non-Solicitation of Employees Covenant. Each party agrees that during the term of this Agreement and for the period of two (2) years\nafter the termination of this Agreement, it will not, either directly or through others solicit or attempt to solicit any employee of the other party\nwith whom such party came into contact with during the evaluation of a possible transaction between the parties to become an employee,\nconsultant or independent contractor to or for itself or any of its affiliates; provided,-however, that nothing contained herein shall be deemed to\nprohibit any party, either directly or through others, from (i) conducting any general solicitation not specifically targeted at any such employee,\nand, for the avoidance of doubt, the hiring or engagement by a party of any employee of the other party who responds to such general advertising\nor who approaches such party or any of its affiliates without any solicitation or inducement to leave the employ of the other party or any of its\naffiliates shall not be deemed a breach of this Section 8, or (ii) soliciting for employment or hiring any employee of the other party or any of its\naffiliates who was terminated by the other party or any of its affiliates; each subject to such employee’s restrictive covenants\n9. Miscellaneous.\n(a) This Agreement supersedes all prior agreements, written or oral, between the parties relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by the\nparties.\n(b) This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Agreement shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Agreement will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n-3-\n(e) The confidentiality obligations imposed by this Agreement shall continue with respect to a particular item of Proprietary\nInformation until the fifth anniversary of the disclosure of such Proprietary Information to Recipient pursuant to this Agreement; provided,\nhowever, that the confidentiality obligations imposed by this Agreement with respect to source code included in the Proprietary Information shall\ncontinue in perpetuity.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be\ndeemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC. ENERNOC, INC.\nBy:  /s/ Philip V. Adams By: /s/ Matthew J. Cushing\nName: Philip V. Adams Name: Matthew J. Cushing\nTitle: CEO Title: General Counsel & VP.\nDate: 4/15/14 Date: April 15,2014\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (the “Amendment™), dated June 11, 2014, between World Energy Solutions, Inc., a\nDelaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a Delaware corporation\nlocated at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-Disclosure Agreement\ndated April 15, 2014 between World Energy and ENOC (the “Original Agreement”). Capitalized terms used but not defined herein shall have the\nrespective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Exclusivity and Standstill. A new section 8 A shall be inserted as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until March 11, 2015 (“Standstill Period”), neither ENOC nor any of its affiliates or its or their respective officers, directors,\ninvestment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the “Representatives”) acting on\nENOC’s behalf will, unless specifically invited in writing by World Energy’s Board of Directors or its duly authorized representative:\n \n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in, or make any public announcement with respect to, or submit a proposal for, any\ntender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy’s Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy’s equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an “Acquisition Transaction”), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led “process” or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause C(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8 A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction by\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the signature of this Amendment No. 1 and ending at 5:30 p.m. in Boston, MA, on June 27, 2014 (the “Exclusivity Period”),\nWorld Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, investment bankers, attorneys\nand other financial advisors (collectively, the “World Energy Representatives”) not to, directly or indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction, or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an “interested stockholder” under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the patties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC. ENERNOC, INC.\nBy:  /s/ Philip V. Adams By:  /s/ Neil Moses\nName: Philip V. Adams Name: Neil Moses\nTitle: CEO Title: COO\nAMENDMENT NO. 2 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 2 to Non-Disclosure Agreement (the “Amendment”), dated August 20, 2014 (the “Effective Date), between World\nEnergy Solutions, Inc., a Delaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC (the “Original Agreement”). Capitalized terms used but not\ndefined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement, as amended, as follows:\n1. Exclusivity and Standstill. Section 8A shall be amended and restated as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until June 12, 2015 (“Standstill Period”), neither ENOC nor any of its affiliates or its or their respective officers, directors, investment\nbankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the “Representatives”) acting on ENOC’s\nbehalf will, unless specifically invited in writing by World Energy’s Board of Directors or its duly authorized representative:\n \n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in. or make any public announcement with respect to, or submit a proposal for, any\ntender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy’s Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy’s equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an “Acquisition Transaction”), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led “process” or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause (C)(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8 A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction by\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the Effective Date and ending at 5:30 p.m. in Boston, MA, on the forty-fifth day following the Effective Date (the “Exclusivity\nPeriod”), World Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, other employees,\ninvestment bankers, attorneys, financial advisors and other advisors or agents (collectively, the “World Energy Representatives”) not to, directly\nor indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction , or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an “interested stockholder” under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC. ENERNOC, INC.\nBy:  /s/ Philip Adams By: /s/ Matthew J. Cushing\nName: Philip Adams Name: Matthew J. Cushing\nTitle: CEO Title: GC & VP\nAMENDMENT NO. 3 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 3 to Non-Disclosure Agreement (the “Amendment”), dated October 3, 2014 (the “Effective Date”), between World\nEnergy Solutions, Inc., a Delaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC, as amended by Amendment No.1 to Non-Disclosure Agreement,\ndated June 12, 2014, and Amendment No.2 to Non-Disclosure Agreement, dated August 20, 2014 (the “Original Agreement”). Capitalized terms\nused but not defined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Non-Solicitation of Employees. Section 8 shall be amended and restated as follows:\nEach party agrees that for the period of two (2) years from the date of the Original Agreement, it will not, either directly or through others,\nhire, solicit, induce or cause, or attempt to hire, solicit, induce or cause, any person who at any time during the term of this Agreement is an\nemployee of, or a consultant or independent contractor regularly providing services to, the other party or its affiliates (each, a “Covered Person”)\nto become an employee of, consultant or independent contractor to or for itself or any of its affiliates; provided, however, that nothing contained\nherein shall be deemed to prohibit any party, either directly or through others, from (i) conducting any general advertising not specifically\ntargeted at any Covered Person, (ii) after the period ending six (6) months following the termination of the Exclusivity Period, as extended herein\nand from time to time hereafter, the hiring or engagement by a party of any Covered Person of the other party who responds to such general\nadvertising (as referenced in clause (i) above) or who approaches such party or any of its affiliates without any solicitation or inducement to\nleave the employ of the other party or any of its affiliates , or (iii) soliciting for employment or hiring any Covered Person of the other party or\nany of its affiliates who was terminated by the other party or any of its affiliates, after the period ending nine (9) months following the\ntermination of such Covered Person by the other party; subject, in each case described in clauses (ii) and (iii), to such Covered Person’s\nrestrictive covenants.\n2. Exclusivity. Notwithstanding anything in the Original Agreement to the contrary, by signing below both parties agree to extend the\nExclusivity Period until 5:30 p.m. in Boston, MA, on October 15, 2014.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC. ENERNOC, INC.\nBy:  /s/ Philip V. Adams By: /s/ Matthew J. Cushing\nName: Philip V. Adams Name: Matthew J. Cushing\nTitle: CEO Title: General Counsel & Vice President\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nOctober 15, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the “NDA”). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m. in Boston, MA, on October 31, 2014.\nNo other changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy: /s/ Neil Moses\nName: Neil Moses\nTitle:  Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy: /s/ Philip V. Adams\nName: Philip V. Adams\nTitle: CEO\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nNovember 3, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the “NDA”). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m. in Boston, MA, on November 3, 2014.\nNo other changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy: /s/ Neil Moses\nName: Neil Moses\nTitle:  Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy: /s/ Philip V. Adams\nName: Philip V. Adams\nTitle: President & Chief Executive Officer	EX-99.D.3 8 d818960dex99d3.htm EX-99.D.3\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") dated April 15, 2014 (the "Effective Date"), between World Energy Solutions, Inc., a\nDelaware corporation ("World Energy") with offices at 100 Front Street, Worcester, Massachusetts 01608 and EnerNOC, Inc., a Delaware\ncorporation located at One Marina Park Drive, Boston, Massachusetts 02210 ("ENOC").\n1. Background. World Energy and ENOC (the "parties") intend to engage in discussions and negotiations concerning a possible transaction\nor\nbusiness relationship between them. In the course of such discussions and negotiations and in the course of any such transaction or business\nrelationship, it is anticipated that each party will disclose or deliver to the other party and to the other party's directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and members of advisory\nboards) (collectively, "Representatives") certain of its trade secrets or confidential or proprietary information for the purposes of enabling the\nother party to evaluate the feasibility of such transaction or business relationship and to perform its obligations and exercise its rights under any\nsuch transaction or business relationship that is agreed to between the parties (the "Purposes"). The parties have entered into this Agreement in\norder to assure the confidentiality of such trade secrets and confidential or proprietary information in accordance with the terms of this\nAgreement. As used in this Agreement, the party disclosing Proprietary Information (as defined below) is referred to as the "Disclosing Party";\nthe party receiving such Proprietary Information is referred to as the "Recipient".\n2. Proprietary Information. As used in this Agreement, the term "Proprietary Information" shall mean all trade secrets or confidential\nor\nproprietary information designated as such in writing by the Disclosing Party, whether by letter or by the use of an appropriate proprietary stamp\nor legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the Disclosing Party to the\nRecipient. Notwithstanding the foregoing, information which is orally or visually disclosed to the Recipient by the Disclosing Party, or is\ndisclosed in writing without an appropriate letter, proprietary stamp or legend, shall constitute Proprietary Information if it would be apparent\nto\na reasonable person, familiar with the Disclosing Party's business and the industry in which it operates, that such information is of a confidential\nor proprietary nature the maintenance of which is important to the Disclosing Party. In addition, the term "Proprietary Information" shall be\ndeemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its\nRepresentatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its\nRepresentatives pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the parties\nconcerning the possible transaction or business relationship.\n3. Use and Disclosure of Proprietary. Information. The Recipient and its Representatives shall use the Proprietary Information of the\nDisclosing Party only for the Purposes and such Proprietary Information shall not be used for any other purpose without the prior written consent\nof the Disclosing Party. The Recipient and its Representatives shall hold in confidence, and shall not disclose any Proprietary Information of the\nDisclosing Party; provided. however, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its\nprior written consent; and (ii) any of the Proprietary Information may\nbe disclosed by the Recipient to its Representatives who need to know such information in connection with the Purposes and who are informed\nof the confidential nature of such information and of the terms of this Agreement. In any event, the Recipient shall be responsible for any breach\nof this Agreement by any of its Representatives, and agrees, at its sole expense, to take reasonable measures to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Proprietary Information, Notwithstanding anything contained in this Agreement to the\ncontrary, this Agreement shall not prohibit the Recipient from disclosing Proprietary Information of the Disclosing Party to the extent required\nin\norder for the Recipient to comply with applicable laws and regulations, provided that the Recipient provides prior written notice of such required\ndisclosure to the Disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.\n4. Limitation on Obligations. The obligations of the Recipient specified in Section 3 above shall not apply, and the Recipient shall have no\nfurther obligations, with respect to any Proprietary Information to the extent that such Proprietary Information:\n(a) is generally known to the public at the time of disclosure or becomes generally known without Recipient or its Representatives\nviolating this Agreement;\n(b) is in the Recipient's possession at the time of disclosure;\n(c) becomes known to the Recipient through disclosure by sources other than the Disclosing Party without such sources violating any\nconfidentiality obligations to the Disclosing Party; or\n(d) is independently developed by the Recipient without reference to or reliance upon the Disclosing Party's Proprietary Information.\n5. Ownership of Proprietary. Information The Recipient agrees that it shall not receive any right, title or interest in, or any license or right\nto use, the Disclosing Party's Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights\ntherein, by implication or otherwise. Each of the parties hereto represents, warrants and covenants that the trade secrets which it discloses to the\nother party pursuant to this Agreement have not been stolen, appropriated, obtained or converted without authorization.\n6.\nReturn of Proprietary. Information. The Recipient shall, upon the written request of the Disclosing Party, return to the Disclosing Party all\nProprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and reproductions thereof). In\naddition, the Recipient shall destroy: (i) any notes, reports or other documents prepared by the Recipient which contain Proprietary Information\nof the Disclosing Party; and (ii) any Proprietary Information of the Disclosing Party (and all copies and reproductions thereof) which is in\nelectronic form or cannot otherwise be returned to the Disclosing Party. Alternatively, upon written request of the Disclosing Party, the Recipient\nshall destroy all Proprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and\nreproduction thereof) and any notes, reports or other documents prepared by the Recipient which contain Proprietary Information of the\nDisclosing Party. Notwithstanding the return or destruction of the Proprietary Information, the Recipient and its Representatives will continue to\nbe bound by their obligations of confidentiality and other obligations hereunder.\n2\n7. Securities. Recipient represents that it is aware, and will advise its representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the applicable federal and state securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information regarding a company with publicly traded securities, as well as the restrictions making it\nunlawful to communicate such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or\nsell securities in reliance upon such information.\n8. Non-Solicitation of Employees Covenant. Each party agrees that during the term of this Agreement and for the period of two (2) years\nafter the termination of this Agreement, it will not, either directly or through others solicit or attempt to solicit any employee of the other party\nwith whom such party came into contact with during the evaluation of a possible transaction between the parties to become an employee,\nconsultant or independent contractor to or for itself or any of its affiliates; rovided,-however, that nothing contained herein shall be deemed to\nprohibit any party, either directly or through others, from (i) conducting any general solicitation not specifically targeted at any such employee,\nand, for the avoidance of doubt, the hiring or engagement by a party of any employee of the other party who responds to such general advertising\nor who approaches such party or any of its affiliates without any solicitation or inducement to leave the employ of the other party or any of its\naffiliates shall not be deemed a breach of this Section 8, or (ii) soliciting for employment or hiring any employee of the other party or any of its\naffiliates who was terminated by the other party or any of its affiliates; each subject to such employee's restrictive covenants\n9. Miscellaneous.\n(a) This Agreement supersedes all prior agreements, written or oral, between the parties relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by the\nparties.\n(b) This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Agreement shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Agreement will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n3\n(e) The confidentiality obligations imposed by this Agreement shall continue with respect to a particular item of Proprietary\nInformation until the fifth anniversary of the disclosure of such Proprietary Information to Recipient pursuant to this Agreement; provided,\nhowever, that the confidentiality obligations imposed by this Agreement with respect to source code included in the Proprietary Information shall\ncontinue in perpetuity.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be\ndeemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy:\n/s/ Philip V. Adams\nBy:\n/s/ Matthew J. Cushing\nName: Philip V. Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: General Counsel & VP.\nDate: 4/15/14\nDate: April 15, 2014\n4 -\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (the "Amendment"), dated June 11, 2014, between World Energy Solutions, Inc., a\nDelaware corporation ("World Energy") with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a Delaware corporation\nlocated at One Marina Park Drive, Boston, Massachusetts 02210 ("ENOC"), is entered into in order to amend the Non-Disclosure Agreement\ndated April 15, 2014 between World Energy and ENOC (the "Original Agreement"). Capitalized terms used but not defined herein shall have the\nrespective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Exclusivity and Standstill. A new section 8 A shall be inserted as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until March 11, 2015 ("Standstill Period"), neither ENOC nor any of its affiliates or its or their respective officers, directors,\ninvestment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the "Representatives") acting on\nENOC's behalf will, unless specifically invited in writing by World Energy's Board of Directors or its duly authorized representative:\n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in, or make any public announcement with respect to, or submit a proposal for, any\ntender\noffer,\nexchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any "solicitation" of "'proxies" (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the "34 Act")) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a "group" (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy's Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy's equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an "Acquisition Transaction"), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led "process" or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause C(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction\nby\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity.. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the signature of this Amendment No. 1 and ending at 5:30 p.m. in Boston, MA, on June 27, 2014 (the "Exclusivity Period"),\nWorld Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, investment bankers, attorneys\nand other financial advisors (collectively, the "World Energy Representatives") not to, directly or indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii)\nengage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction, or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv)\nenter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an "interested stockholder" under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the patties and are considered\nby\nthe parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy:\n/s/ Neil Moses\nName: Philip V. Adams\nName: Neil Moses\nTitle: CEO\nTitle: COO\nAMENDMENT NO. 2 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 2 to Non-Disclosure Agreement (the "Amendment"), dated August 20, 2014 (the "Effective Date"), between World\nEnergy Solutions, Inc., a Delaware corporation ("World Energy.") with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 ("ENOC"), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC (the "Original Agreement"). Capitalized terms used but not\ndefined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement, as amended, as follows:\n1. Exclusivity and Standstill. Section 8A shall be amended and restated as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until June 12, 2015 ("Standstill Period"), neither ENOC nor any of its affiliates or its or their respective officers, directors, investment\nbankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the "Representatives") acting on ENOC's\nbehalf will, unless specifically invited in writing by World Energy's Board of Directors or its duly authorized representative:\n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities\nor\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in. or make any public announcement with respect to, or submit a proposal for, any\ntender\noffer,\nexchange\noffer,\nmerger,\nbusiness\ncombination,\nrecapitalization,\nrestructuring,\nliquidation,\ndissolution\nor\nextraordinary\ntransaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any "solicitation" of "'proxies" (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the "34 Act")) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a "group" (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy's Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy's equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an "Acquisition Transaction"), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led "process" or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause (C)(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing\ntermination\nof\nthe\nforegoing\nrestrictions\nin\nthis\nSection\n8A,\nENOC\nand\nits\nRepresentatives\nshall\nbe\npermitted\n(notwithstanding\nany\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction\nby\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity.. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the Effective Date and ending at 5:30 p.m. in Boston, MA, on the forty-fifth day following the Effective Date (the "Exclusivity.\nPeriod"), World Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, other employees,\ninvestment bankers, attorneys, financial advisors and other advisors or agents (collectively, the "World Energy. Representatives") not to, directly\nor indirectly:\n(i)\ninitiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii)\napprove, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an "interested stockholder" under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby\nthe parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy:\n/s/ Philip Adams\nBy: /s/ Matthew J. Cushing\nName: Philip Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: GC & VP\nAMENDMENT NO. 3 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 3 to Non-Disclosure Agreement (the "Amendment"), dated October 3, 2014 (the "Effective Date"), between World\nEnergy Solutions, Inc., a Delaware corporation ("World Energy.") with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 ("ENOC"), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC, as amended by Amendment No.1 to Non-Disclosure Agreement,\ndated June 12, 2014, and Amendment No.2 to Non-Disclosure Agreement, dated August 20, 2014 (the "Original Agreement"). Capitalized terms\nused but not defined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Non-Solicitation of Employees. Section 8 shall be amended and restated as follows:\nEach party agrees that for the period of two (2) years from the date of the Original Agreement, it will not, either directly or through others,\nhire, solicit, induce or cause, or attempt to hire, solicit, induce or cause, any person who at any time during the term of this Agreement is an\nemployee of, or a consultant or independent contractor regularly providing services to, the other party or its affiliates (each, a "Covered Person")\nto become an employee of, consultant or independent contractor to or for itself or any of its affiliates; provided, however, that nothing contained\nherein shall be deemed to prohibit any party, either directly or through others, from (i) conducting any genera advertising not specifically\ntargeted at any Covered Person, (ii) after the period ending six (6) months following the termination of the Exclusivity Period, as extended herein\nand from time to time hereafter, the hiring or engagement by a party of any Covered Person of the other party who responds to such general\nadvertising (as referenced in clause (i) above) or who approaches such party or any of its affiliates without any solicitation or inducement to\nleave the employ of the other party or any of its affiliates or (iii) soliciting for employment or hiring any Covered Person of the other party or\nany of its affiliates who was terminated by the other party or any of its affiliates, after the period ending nine (9) months following the\ntermination of such Covered Person by the other party; subject, in each case described in clauses (ii) and (iii), to such Covered Person's\nrestrictive covenants.\n2. Exclusivity.. Notwithstanding anything in the Original Agreement to the contrary, by signing below both parties agree to extend the\nExclusivity Period until 5:30 p.m. in Boston, MA, on October 15, 2014.\n2.\nNo Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby\nthe parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Matthew J. Cushing\nName: Philip V. Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: General Counsel & Vice President\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nOctober 15, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the "NDA"). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m. in Boston, MA, on October 31, 2014.\nNo\nother changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy:\n/s/ Neil Moses\nName: Neil Moses\nTitle: Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy:\n/s/ Philip V. Adams\nName: Philip V. Adams\nTitle: CEO\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nNovember 3, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the "NDA"). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m. in Boston, MA, on November 3, 2014.\nNo\nother changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy:\n/s/ Neil Moses\nName: Neil Moses\nTitle: Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy:\n/s/ Philip V. Adams\nName: Philip V. Adams\nTitle: President & Chief Executive Officer	EX-99.D.3 8 d818960dex99d3.htm EX-99 .D.3\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated April 15, 2014 (the “Effective Date”), between World Energy Solutions, Inc., a\nDelaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, Massachusetts 01608 and EnerNOC, Inc., a Delaware\ncorporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”).\n1. Background. World Energy and ENOC (the “parties”) intend to engage in discussions and negotiations concerning a possible transaction\nor business relationship between them. In the course of such discussions and negotiations and in the course of any such transaction or business\nrelationship, it is anticipated that each party will disclose or deliver to the other party and to the other party’s directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and members of advisory\nboards) (collectively, “Representatives”) certain of its trade secrets or confidential or proprietary information for the purposes of enabling the\nother party to evaluate the feasibility of such transaction or business relationship and to perform its obligations and exercise its rights under any\nsuch transaction or business relationship that is agreed to between the parties (the “Purposes”). The parties have entered into this Agreement in\norder to assure the confidentiality of such trade secrets and confidential or proprietary information in accordance with the terms of this\nAgreement. As used in this Agreement, the party disclosing Proprietary Information (as defined below) is referred to as the “Disclosing Party”;\nthe party receiving such Proprietary Information is referred to as the “Recipient”.\n2. Proprietary Information. As used in this Agreement, the term “Proprietary Information” shall mean all trade secrets or confidential or\nproprietary information designated as such in writing by the Disclosing Party, whether by letter or by the use of an appropriate proprietary stamp\nor legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the Disclosing Party to the\nRecipient. Notwithstanding the foregoing, information which is orally or visually disclosed to the Recipient by the Disclosing Party, or is\ndisclosed in writing without an appropriate letter, proprietary stamp or legend, shall constitute Proprietary Information if it would be apparent to\na reasonable person, familiar with the Disclosing Party’s business and the industry in which it operates, that such information is of a confidential\nor proprietary nature the maintenance of which is important to the Disclosing Party. In addition, the term “Proprietary Information” shall be\ndeemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its\nRepresentatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its\nRepresentatives pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the parties\nconcerning the possible transaction or business relationship.\n3. Use and Disclosure of Proprietary Information. The Recipient and its Representatives shall use the Proprietary Information of the\nDisclosing Party only for the Purposes and such Proprietary Information shall not be used for any other purpose without the prior written consent\nof the Disclosing Party. The Recipient and its Representatives shall hold in confidence, and shall not disclose any Proprietary Information of the\nDisclosing Party; provided. however, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its\nprior written consent; and (ii) any of the Proprietary Information may\nbe disclosed by the Recipient to its Representatives who need to know such information in connection with the Purposes and who are informed\nof the confidential nature of such information and of the terms of this Agreement. In any event, the Recipient shall be responsible for any breach\nof this Agreement by any of its Representatives, and agrees, at its sole expense, to take reasonable measures to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Proprietary Information, Notwithstanding anything contained in this Agreement to the\ncontrary, this Agreement shall not prohibit the Recipient from disclosing Proprietary Information of the Disclosing Party to the extent required in\norder for the Recipient to comply with applicable laws and regulations, provided that the Recipient provides prior written notice of such required\ndisclosure to the Disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.\n4. Limitation on Obligations. The obligations of the Recipient specified in Section 3 above shall not apply, and the Recipient shall have no\nfurther obligations, with respect to any Proprietary Information to the extent that such Proprietary Information:\n(a) is generally known to the public at the time of disclosure or becomes generally known without Recipient or its Representatives\nviolating this Agreement;\n(b) is in the Recipient’s possession at the time of disclosure;\n(c) becomes known to the Recipient through disclosure by sources other than the Disclosing Party without such sources violating any\nconfidentiality obligations to the Disclosing Party; or\n(d) is independently developed by the Recipient without reference to or reliance upon the Disclosing Party’s Proprietary Information.\n5. Ownership of Proprietary Information. The Recipient agrees that it shall not receive any right, title or interest in, or any license or right\nto use, the Disclosing Party’s Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights\ntherein, by implication or otherwise. Each of the parties hereto represents, warrants and covenants that the trade secrets which it discloses to the\nother party pursuant to this Agreement have not been stolen, appropriated, obtained or converted without authorization.\n6. Return of Proprietary Information. The Recipient shall, upon the written request of the Disclosing Party, return to the Disclosing Party all\nProprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and reproductions thereof). In\naddition, the Recipient shall destroy: (i) any notes, reports or other documents prepared by the Recipient which contain Proprietary Information\nof the Disclosing Party; and (ii) any Proprietary Information of the Disclosing Party (and all copies and reproductions thereof) which is in\nelectronic form or cannot otherwise be returned to the Disclosing Party. Alternatively, upon written request of the Disclosing Party, the Recipient\nshall destroy all Proprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and\nreproduction thereof) and any notes, reports or other documents prepared by the Recipient which contain Proprietary Information of the\nDisclosing Party. Notwithstanding the return or destruction of the Proprietary Information, the Recipient and its Representatives will continue to\nbe bound by their obligations of confidentiality and other obligations hereunder.\n-\n2-\n7. Securities. Recipient represents that it is aware, and will advise its representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the applicable federal and state securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information regarding a company with publicly traded securities, as well as the restrictions making it\nunlawful to communicate such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or\nsell securities in reliance upon such information.\n8. Non-Solicitation of Employees Covenant. Each party agrees that during the term of this Agreement and for the period of two (2) years\nafter the termination of this Agreement, it will not, either directly or through others solicit or attempt to solicit any employee of the other party\nwith whom such party came into contact with during the evaluation of a possible transaction between the parties to become an employee,\nconsultant or independent contractor to or for itself or any of its affiliates; provided,-however, that nothing contained herein shall be deemed to\nprohibit any party, either directly or through others, from (i) conducting any general solicitation not specifically targeted at any such employee,\nand, for the avoidance of doubt, the hiring or engagement by a party of any employee of the other party who responds to such general advertising\nor who approaches such party or any of its affiliates without any solicitation or inducement to leave the employ of the other party or any of its\naffiliates shall not be deemed a breach of this Section 8, or (ii) soliciting for employment or hiring any employee of the other party or any of its\naffiliates who was terminated by the other party or any of its affiliates; each subject to such employee’s restrictive covenants\n9. Miscellaneous.\n(a) This Agreement supersedes all prior agreements, written or oral, between the parties relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by the\nparties.\n(b) This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Agreement shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Agreement will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n-\n3-\n(e) The confidentiality obligations imposed by this Agreement shall continue with respect to a particular item of Proprietary\nInformation until the fifth anniversary of the disclosure of such Proprietary Information to Recipient pursuant to this Agreement; provided,\nhowever, that the confidentiality obligations imposed by this Agreement with respect to source code included in the Proprietary Information shall\ncontinue in perpetuity.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be\ndeemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Matthew J. Cushing\nName: Philip V. Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: General Counsel & VP.\nDate: 4/15/14\nDate: April 15, 2014\n-\n4-\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (the “Amendment”), dated June 11, 2014, between World Energy Solutions, Inc., a\nDelaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a Delaware corporation\nlocated at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-Disclosure Agreement\ndated April 15, 2014 between World Energy and ENOC (the “Original Agreement”). Capitalized terms used but not defined herein shall have the\nrespective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Exclusivity and Standstill. A new section 8 A shall be inserted as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until March 11, 2015 (“Standstill Period”), neither ENOC nor any of its affiliates or its or their respective officers, directors,\ninvestment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the “Representatives”) acting on\nENOC’s behalf will, unless specifically invited in writing by World Energy’s Board of Directors or its duly authorized representative:\n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in, or make any public announcement with respect to, or submit a proposal for, any\ntender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy’s Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy’s equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an “Acquisition Transaction”), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led “process” or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause C(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction by\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the signature of this Amendment No. 1 and ending at 5:30 p.m . in Boston, MA, on June 27, 2014 (the “Exclusivity Period”),\nWorld Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, investment bankers, attorneys\nand other financial advisors (collectively, the “World Energy Representatives”) not to, directly or indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction, or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an “interested stockholder” under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the patties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Neil Moses\nName: Philip V. Adams\nName: Neil Moses\nTitle: CEO\nTitle: COO\nAMENDMENT NO. 2 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 2 to Non-Disclosure Agreement (the “Amendment”), dated August 20, 2014 (the “Effective Date”), between World\nEnergy Solutions, Inc., a Delaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC (the “Original Agreement”). Capitalized terms used but not\ndefined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement, as amended, as follows:\n1. Exclusivity and Standstill. Section 8A shall be amended and restated as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until June 12, 2015 (“Standstill Period”), neither ENOC nor any of its affiliates or its or their respective officers, directors, investment\nbankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the “Representatives”) acting on ENOC’s\nbehalf will, unless specifically invited in writing by World Energy’s Board of Directors or its duly authorized representative:\n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in. or make any public announcement with respect to, or submit a proposal for, any\ntender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy’s Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy’s equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an “Acquisition Transaction”), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led “process” or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause (C)(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction by\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the Effective Date and ending at 5:30 p.m. in Boston, MA, on the forty-fifth day following the Effective Date (the “Exclusivity\nPeriod”), World Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, other employees,\ninvestment bankers, attorneys, financial advisors and other advisors or agents (collectively, the “World Energy Representatives”) not to, directly\nor indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction , or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an “interested stockholder” under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip Adams\nBy: /s/ Matthew J. Cushing\nName: Philip Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: GC & VP\nAMENDMENT NO. 3 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 3 to Non-Disclosure Agreement (the “Amendment”), dated October 3, 2014 (the “Effective Date”), between World\nEnergy Solutions, Inc., a Delaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC, as amended by Amendment No.1 to Non-Disclosure Agreement,\ndated June 12, 2014, and Amendment No.2 to Non-Disclosure Agreement, dated August 20, 2014 (the “Original Agreement”). Capitalized terms\nused but not defined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Non-Solicitation of Employees. Section 8 shall be amended and restated as follows:\nEach party agrees that for the period of two (2) years from the date of the Original Agreement, it will not, either directly or through others,\nhire, solicit, induce or cause, or attempt to hire, solicit, induce or cause, any person who at any time during the term of this Agreement is an\nemployee of, or a consultant or independent contractor regularly providing services to, the other party or its affiliates (each, a “Covered Person”)\nto become an employee of, consultant or independent contractor to or for itself or any of its affiliates; provided, however, that nothing contained\nherein shall be deemed to prohibit any party, either directly or through others, from (i) conducting any general advertising not specifically\ntargeted at any Covered Person, (ii) after the period ending six (6) months following the termination of the Exclusivity Period, as extended herein\nand from time to time hereafter, the hiring or engagement by a party of any Covered Person of the other party who responds to such general\nadvertising (as referenced in clause (i) above) or who approaches such party or any of its affiliates without any solicitation or inducement to\nleave the employ of the other party or any of its affiliates , or (iii) soliciting for employment or hiring any Covered Person of the other party or\nany of its affiliates who was terminated by the other party or any of its affiliates, after the period ending nine (9) months following the\ntermination of such Covered Person by the other party; subject, in each case described in clauses (ii) and (iii), to such Covered Person’s\nrestrictive covenants.\n2. Exclusivity. Notwithstanding anything in the Original Agreement to the contrary, by signing below both parties agree to extend the\nExclusivity Period until 5:30 p.m . in Boston, MA, on October 15, 2014.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Matthew J. Cushing\nName: Philip V. Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: General Counsel & Vice President\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nOctober 15, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the “NDA”). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m . in Boston, MA, on October 31, 2014.\nNo other changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy: /s/ Neil Moses\nName: Neil Moses\nTitle: Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy: /s/ Philip V. Adams\nName: Philip V. Adams\nTitle: CEO\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nNovember 3, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the “NDA”). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m . in Boston, MA, on November 3, 2014.\nNo other changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy: /s/ Neil Moses\nName: Neil Moses\nTitle: Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy: /s/ Philip V. Adams\nName: Philip V. Adams\nTitle: President & Chief Executive Officer
2ab67f26bc51d57492e3f27b244fae3e.pdf	effective_date jurisdiction party term	EX-10.21 2 d881010dex1021.htm EX-10.21\nExhibit 10.21\nCONFIDENTIAL RETIREMENT AGREEMENT AND GENERAL RELEASE\nThis Confidential Retirement Agreement and General Release (“Agreement”), entered into by and between Charles H. Turner (“you” or the\n“Employee”), Pier 1 Services Company (“Company”) and Pier 1 Imports, Inc. (“Parent”) (collectively, the “Parties”) as of the Effective Date (as\ndefined below), arises from your retirement and the associated termination of your employment relationship with the Company. Company,\nParent, their subsidiaries and affiliates are together sometimes referred to herein as “Pier 1.”\nThis Agreement is legally-binding. You are hereby advised to consult with an attorney before signing it.\nYou acknowledge that your retirement from the Company and the associated termination of your employment is effective February 10,\n2015 (the “Effective Date”). The Company has offered you the payments and other benefits described in Section 1 below in conjunction with\nyour retirement. You agree that you are not entitled to any payment provided for in this Agreement unless you execute this Agreement by signing\nthe signature line at the conclusion of this Agreement, and do not revoke it during the revocation period described below. You acknowledge that\nas of the Effective Date you have resigned from all positions as an officer, director or trustee of Pier 1 and with respect to any employee benefit\nplan or other arrangement or accommodation of Pier 1 as to which you have been designated as an officer, director, agent, trustee or other\ncapacity.\n1. Retirement Benefits. In consideration for the promises, covenants and releases contained in this Agreement you will receive a lump-\nsum payment from Company in the amount of $1,083,293.00, subject to applicable taxes and related withholdings. This payment shall be paid\nwithin six business days following the expiration of the Revocation Period, defined herein, provided you have executed and delivered this\nAgreement to the Company in the manner set forth herein without revoking the Agreement. In the event that you revoke this Agreement, you will\nbe ineligible for any payment provided for herein. You acknowledge that this payment is in addition to any monies or benefits to which you are\nalready otherwise entitled under the plans and arrangements described on Annex A to this Agreement (the “Other Retirement Benefits”) and that\nthe payment represents good and sufficient consideration for your promises, covenants and releases set forth in this Agreement.\n2. General Release. In consideration for the payment described in Section 1 above, to which you are otherwise not entitled, you – on\nbehalf of yourself, your family, assigns, representatives, agents, estate, heirs, beneficiaries, executors, administrators, successors, and/or\nattorneys, if any — waive and release Company, Parent, their affiliates and subsidiaries, and all of their current and former respective officers,\ndirectors, employees, stockholders, representatives and agents, including their successors and assigns (collectively the “Releasees”), with respect\nto any and all claims, losses, liabilities, obligations and causes of action, known and unknown, arising out of, connected with, or relating to:\n(i) your employment; (ii) the Releasees’ refusal or failure to continue your employment; or (iii) the termination of your employment, including,\nbut not limited to, claims for compensation, commissions, bonuses, stock options, other wages and benefits, breach of contract, wrongful\ntermination, impairment of economic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related\naccident, any breach of implied or express covenant of good faith and fair dealing, violation of public policy, or any other contract, tort or\npersonal injury claim, or claim based on any municipal, state or federal statute, regulation or ordinance relating to employment, employment\ndiscrimination or retaliation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq.; The\nCivil Rights Act of 1866, as amended, 42 U.S .C . § 1981; The Civil Rights Act of 1991, as amended, 42 U.S.C . § 1981a; The Age\nDiscrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Americans With Disabilities Act, as amended, 42 U.S.C . §\n12101 et seq.; Fair Labor\nStandards Act, as amended, 29 U.S.C . § 201, et seq.; Equal Pay Act, as amended, 29 U.S.C. § 201 et seq.; National Labor Relations Act, as\namended, 29 U.S .C . § 151 et seq.; Worker Adjustment and Retraining Notification Act, as amended, 29 U.S.C . § 2101 et seq., Employee\nRetirement Income Security Act, as amended, 29 U.S.C . § 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S .C . § 2601, et seq.;\nChapter 21 of the Texas Labor Code or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative\ninterpretation whether promulgated by Federal, State, local or other jurisdiction or political subdivision. This Agreement extinguishes any\npotential monetary recovery from employment discrimination claims you may have relating to your employment with the Company and the\ntermination of your employment existing on the Effective Date of this Agreement.\nNothing in this Agreement will prevent you from initiating or participating in any State or Federal agency administrative proceeding\nincluding proceedings before the Equal Employment Opportunity Commission or from testifying at an administrative hearing, deposition, or in\ncourt in response to a lawful subpoena.\nThis Agreement does not release or terminate any of your rights pursuant to the Indemnification Agreement dated January 18, 2011,\nbetween you and Parent (the “Indemnification Agreement”), or the Other Retirement Benefits, which shall continue in full force and effect in\naccordance with their respective terms. This Agreement does not release or waive your rights as an employee to (i) any vested benefits under a\nbenefit plan which by its terms specifically provides for the vesting of benefits prior to or upon the Effective Date, (ii) convert any insured\nbenefits under an employee benefit plan to the extent the plan allows conversion, or (iii) maintain your medical insurance in force as provided by\nthe Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).\n3. Non-Assignment. You represent and warrant that you have not assigned to any third party any claim involving the Releasees or\nauthorized any third party to assert on your behalf any claim against the Releasees. If a third party asserts a claim against the Releasees on your\nbehalf or includes you as a class member in any class action involving any claim released under this Agreement, you shall not accept any benefits\nor damages relating or arising out of such claim.\n4. Return of Property. You represent and warrant that you have returned all property, equipment, documents and other tangible things,\nincluding keys, cell phones, pagers, corporate credit cards, and laptops or other computers of Pier 1 — except for documents reflecting your\ncompensation and benefits (Other Retirement Benefits) while employed by Pier 1 — in accordance with Company’s policies and rules, effective\non your last day of work with the Company, or if you failed to do so, you agree to do so immediately upon finding any such items in your\npossession. You represent and warrant that you have not, and you agree that in the future you shall not, destroy, alter, erase, or otherwise change\nany software, data, or other information belonging to Company. Further, you hereby consent to pay Company the value of any property,\nequipment and tangible things that you fail to return in accordance with this Agreement and any monies you owe Pier 1, up to the maximum\namount allowed by law.\n5. Confidentiality. You agree that the terms of this Agreement shall be confidential. You shall not disclose the terms to anyone other than\nyour spouse, attorney, accountant, financial planner, or tax advisor, without Company’s prior written approval, except as may be required by law\nand/or court order. You shall not disclose the terms of this Agreement to your spouse, attorney, accountant, financial planner, or tax advisor\nunless the receiving party agrees to abide by the confidentiality provisions of this Agreement, and you agree to be responsible for any breach of\nconfidentiality by your spouse, attorney, accountant, financial planner and/or tax advisor. If you receive a request pursuant to applicable law to\ndisclose the existence or terms of this Agreement, you shall promptly notify Company’s Legal Department to enable Company to seek a\nprotective order or other appropriate remedy prior to any disclosure made by you.\n6. Confidential Information and Trade Secrets. You acknowledge that during your employment with Company, you have been given\naccess to and use of trade secrets, proprietary data, or other confidential information, which were developed at considerable effort and expense,\nand which if acquired by competitors of Pier 1 would give them an unfair business advantage. You understand and agree that this information, if\nused by or disclosed to anyone but Pier 1 and its employees with a need to know, will place Pier 1 at a competitive disadvantage. You further\nacknowledge that you have not used or disclosed such trade secrets, proprietary data, or other confidential information during your employment\nwith Company, except as authorized in writing by Company or in the normal exercise of your job duties for the benefit of Pier 1.\nIn further consideration for the above-recited covenants, promises and statements of understanding between the parties, including the\npayment described in Section 1 of this Agreement, to which you are otherwise not entitled, you agree that you shall not, without the prior express\nwritten consent of the Company, directly or indirectly communicate or disclose, or use for your benefit or the benefit of any other person, firm,\nassociation, or corporation, any of the Releasees’ trade secrets, proprietary data or other confidential information, which trade secrets, proprietary\ndata and other confidential information were communicated to or otherwise learned or acquired by you during your employment relationship\nwith the Company, except that you may disclose such matters to the extent that disclosure is required (a) at the Company’s direction or (b) by a\nlawful order of a court or other governmental agency of competent jurisdiction. For so long as such matters remain trade secrets, proprietary data,\nor other confidential information, you agree that you will not use such trade secrets, proprietary data, or other confidential information in any\nway or in any capacity other than as expressly consented to by the Company.\nNothing in the above paragraph shall be construed to restrict you from using your general knowledge, skills, and experience acquired\nduring your employment with the Company in future employment whether or not such employment is with a direct competitor of Pier 1.\nSuch trade secrets, proprietary data, or other confidential information include, but are not limited to, the following: information concerning\nstrategic marketing plans or product development plans; cost or pricing information; vendor or supplier information; business plans or methods;\ncustomer lists or data; information regarding proposed joint ventures, mergers, acquisitions, and other such anticipated or contemplated business\nventures of Pier 1; projects, whether completed, in progress, or only contemplated; real estate plans and strategy; investment opportunities and\nother information related to investments of Pier 1, whether past, present or future; confidential financial information; financial planning and\nanalysis modeling and methodology; intellectual property; financial accounting and reporting; tax planning and strategy; personnel information;\nideas; discoveries; designs; inventions; improvements; know-how; writings and other works of authorship; computer programs; accounting\ninformation; lists; analyses; studies; technology; programs; flow charts; information regarding products or techniques; strategies; or, any other\nbusiness information that relates in any manner to the actual or anticipated business of Pier 1, and which they have not intentionally disclosed to\nits competitors or to the general public.\nThe obligations set forth herein shall be in addition to any other confidentiality obligations that you may have to any of the Releasees.\nYou further acknowledge that the injury the Releasees will suffer in the event of your breach of any covenant or agreement set forth in\nSections 5, 6, 7, 8 or 9 herein cannot be compensated by monetary damages alone, and you therefore agree that the Releasees, in addition to and\nwithout limiting any other remedies or otherwise, shall have the right to obtain an injunction against you.\n7. Nondisparagement. You shall not make any untrue, misleading, or disparaging statements, or comments concerning the Releasees.\nDuring their tenure, the current Executive Officers and members of the Board of Directors of Parent shall not make any untrue, misleading, or\ndisparaging public statements or comments about you. The Parties agree that the commitments in this paragraph will not limit or prohibit them\nfrom testifying truthfully, or providing truthful information in connection with any pending or threatened legal proceeding or to any\ngovernmental agency or as otherwise required by law.\n8. Nonsolicitation. For a period of one year beginning on the day following the Effective Date, you shall not under any circumstances\nemploy, solicit the employment of, or accept the services of, any “protected person” or recommend the employment of any “protected person” to\nany other business organization. A “protected person” is a person known by you to be employed by Pier 1 or to have been employed by Pier 1\nwithin six months prior to the commencement of conversations with such person with respect to employment. The term “subsidiary” as used in\nthis Agreement means a corporation or other entity more than 50 percent of whose outstanding securities or interests representing the right, other\nthan as affected by events of default, to vote for the election of directors or otherwise select a similar governing body is owned by Pier 1.\nAs to (i) each “protected person” to whom the foregoing applies, (ii) each limitation on (A) employment, (B) solicitation and\n(C) acceptance of services, of each “protected person” and (iii) each month of the period during which the provisions of this Section 8 apply to\neach of the foregoing, the provisions set forth in this Section 8 are deemed to be separate and independent agreements and in the event of\nunenforceability of any such agreement, such unenforceable agreement shall be deemed automatically deleted from the provisions hereof and\nsuch deletion shall not affect the enforceability of any other provision of this Section 8 or any other term of this Agreement.\n9. Cooperation. You agree to cooperate with Pier 1 at such reasonable times and places as may be reasonably requested, and to provide all\ninformation that may be reasonably requested with respect to any matter involving your present or former relationship with Pier 1, the work you\nhave performed for Pier 1, or present or former employees, so long as such requests do not unreasonably interfere with any other job or\nsignificant personal activity in which you are engaged. This specifically includes your assistance in regulatory inquiries, investigations and\nlitigation matters, including depositions and/or court appearances in connection therewith, which may include appearances in other states. Pier 1\nwill make every effort to schedule these matters at times and locations convenient for you should they arise. The Company will reimburse you\nfor reasonable expenses, such as telephone, travel, lodging, and meal expenses, you incur at the request of Pier 1, consistent with the Company’s\ngenerally applicable policies for employee expenses.\n10. No Authority. As of your last day of employment with Company, you shall have no authority to obligate Pier 1 in any manner, and\nshall not enter into, or attempt to enter into, any contracts on their behalf. You shall not make any representation, warranty, or other statement, or\ntake any action, that may be construed by a third party to indicate that you have authority to obligate Pier 1 or to enter into a contract on any of\ntheir behalf.\n11. No Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an admission that\nany of the Releasees or you have acted wrongfully with respect to each other. Each of the Releasees and you specifically deny and disclaim any\nsuch liability or wrongful acts.\n12. Venue and Applicable Law. This Agreement shall be performed in Fort Worth, Texas, and the laws of the State of Texas shall govern\nthe enforceability, interpretation and legal effect of this\nAgreement. The parties shall submit to the jurisdiction of the federal and state courts sitting in Tarrant County, Texas, for all purposes relating to\nthe validity, interpretation or enforcement of this Agreement, including, without limitation, any application for injunctive relief.\n13. Remedies. Any material breach by you of the terms and conditions contained in this Agreement shall give Company the right to\ndiscontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable law, and shall\nentitle Pier 1 to legal, injunctive, or other equitable relief on account of such breach.\n14. Entire Agreement. This Agreement together with the agreements and plans described on Annex A to this Agreement constitute our\nentire agreement and supersedes any prior agreements or understandings between Company, Parent and you with respect to the subject matter\nherein, except for any confidentiality obligations referred to elsewhere herein. You acknowledge that you enter into this Agreement without\nreliance on any written or oral promise or representation, other than those contained in this Agreement.\n15. Severability. If any provision of this Agreement shall be determined by a court to be void or unenforceable, the remaining provisions\nshall remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a part of this Agreement.\n16. Headings. The headings in each Section herein are for convenience of reference only and shall be of no legal effect in the interpretation\nof the terms hereof.\n17. Waiver. If you breach any term of the Agreement, any delay by Pier 1 in enforcing the Agreement shall not be deemed a waiver or\nacceptance. No waiver shall bind Pier 1 unless supported by consideration, executed in writing by the party to be bound, and delivered to you by\nan authorized officer or agent.\n18. Attorneys’ Fees. In any dispute between Company or Parent and you regarding the terms of this Agreement and/or any alleged breach\nthereof, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees arising out of such dispute, provided that such\nrecovery is not otherwise prohibited by law.\n19. Knowing and Voluntary Agreement. You are advised in writing to consult with an attorney before executing this Agreement.\nYou acknowledge and agree that: (i) after you received a copy of this Agreement in writing you had adequate opportunity to review this\nAgreement; (ii) you fully understand its contents; (iii) you have been advised to consult an attorney before signing it; and (iv) you enter\ninto this Agreement knowingly, voluntarily and after any consultations with your attorney or other advisor, as you deem appropriate.\n20. Review Period, Execution and Revocation. In order to be eligible for the payment described in Section 1 above, you must sign and\nreturn the original of this Agreement by 5:00 p.m., on March13, 2015 (the “Due Date”) to Michael A. Carter at the offices of the Company.\nYou acknowledge that you will have had at least 21 calendar days from your receipt of this Agreement on February 20, 2015 to consider\nwhether to accept its terms. Any changes to this Agreement, whether material or immaterial, shall not restart the running of the 21-day period.\nAfter signing the Agreement and properly returning it to the Company, you shall have seven calendar days to consider whether to revoke it\n(the “Revocation Period”). If you choose to revoke this Agreement, you must do so by serving written notice to Pier 1 Services Company by\nfacsimile at 817-\n334-0191, Attn: Legal Department, before the expiration of the Revocation Period and obtain written confirmation of delivery. You acknowledge\nthat this Agreement shall become effective, fully enforceable and irrevocable upon the expiration of the seven-day period following your signing\nof this Agreement. This Agreement shall be null and void if: (i) you fail to execute and return the original of this Agreement on or prior to the\nDue Date; or (ii) you sign it within 21 days, but revoke your execution within seven calendar days after signing it.\nIN WITNESS WHEREOF, this Confidential Retirement Agreement and General Release has been executed\nby each of the listed parties below.\nEMPLOYEE:\nPIER 1 SERVICES COMPANY,\na Delaware statutory trust\nPrinted Name: Charles H. Turner\nBy:\nPier 1 Holdings, Inc., a Delaware corporation,\nIts managing trustee\nSignature:\n/s/ Charles H. Turner\nBy:\n/s/ Michael A. Carter\nDate:\nMarch 1, 2015\nMichael A. Carter\nAddress:\n4612 Lakeside Drive\nSR VP Compliance and General Counsel\nColleyville, TX\nPIER 1 IMPORTS, INC.\nBy:\n/s/ Alexander W. Smith\nAlexander W. Smith, President and CEO\nDate:\nMarch 16, 2015\nAddress: 100 Pier 1 Place, Fort Worth TX 76102\nAttn:\nMichael A. Carter, General Counsel	EX-10.21 2 d881010dex1021.htm EX-10.21\nExhibit 10.21\nCONFIDENTIAL RETIREMENT AGREEMENT AND GENERAL RELEASE\nThis Confidential Retirement Agreement and General Release (“Agreement”), entered into by and between Charles H. Turner (“you” or the\n“Employee”), Pier 1 Services Company (“Company”) and Pier 1 Imports, Inc. (“Parent”) (collectively, the “Parties”) as of the Effective Date (as\ndefined below), arises from your retirement and the associated termination of your employment relationship with the Company. Company,\nParent, their subsidiaries and affiliates are together sometimes referred to herein as “Pier 1.”\nThis Agreement is legally-binding. You are hereby advised to consult with an attorney before signing it.\nYou acknowledge that your retirement from the Company and the associated termination of your employment is effective February 10,\n2015 (the “Effective Date”). The Company has offered you the payments and other benefits described in Section 1 below in conjunction with\nyour retirement. You agree that you are not entitled to any payment provided for in this Agreement unless you execute this Agreement by signing\nthe signature line at the conclusion of this Agreement, and do not revoke it during the revocation period described below. You acknowledge that\nas of the Effective Date you have resigned from all positions as an officer, director or trustee of Pier 1 and with respect to any employee benefit\nplan or other arrangement or accommodation of Pier 1 as to which you have been designated as an officer, director, agent, trustee or other\ncapacity.\n1. Retirement Benefits. In consideration for the promises, covenants and releases contained in this Agreement you will receive a lump-\nsum payment from Company in the amount of $1,083,293.00, subject to applicable taxes and related withholdings. This payment shall be paid\nwithin six business days following the expiration of the Revocation Period, defined herein, provided you have executed and delivered this\nAgreement to the Company in the manner set forth herein without revoking the Agreement. In the event that you revoke this Agreement, you will\nbe ineligible for any payment provided for herein. You acknowledge that this payment is in addition to any monies or benefits to which you are\nalready otherwise entitled under the plans and arrangements described on Annex A to this Agreement (the “Other Retirement Benefits”) and that\nthe payment represents good and sufficient consideration for your promises, covenants and releases set forth in this Agreement.\n2. General Release. In consideration for the payment described in Section 1 above, to which you are otherwise not entitled, you — on\nbehalf of yourself, your family, assigns, representatives, agents, estate, heirs, beneficiaries, executors, administrators, successors, and/or\nattorneys, if any — waive and release Company, Parent, their affiliates and subsidiaries, and all of their current and former respective officers,\ndirectors, employees, stockholders, representatives and agents, including their successors and assigns (collectively the “Releasees™), with respect\nto any and all claims, losses, liabilities, obligations and causes of action, known and unknown, arising out of, connected with, or relating to:\n(i) your employment; (ii) the Releasees’ refusal or failure to continue your employment; or (iii) the termination of your employment, including,\nbut not limited to, claims for compensation, commissions, bonuses, stock options, other wages and benefits, breach of contract, wrongful\ntermination, impairment of economic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related\naccident, any breach of implied or express covenant of good faith and fair dealing, violation of public policy, or any other contract, tort or\npersonal injury claim, or claim based on any municipal, state or federal statute, regulation or ordinance relating to employment, employment\ndiscrimination or retaliation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq.; The\nCivil Rights Act of 1866, as amended, 42 U.S.C. § 1981; The Civil Rights Act of 1991, as amended, 42 U.S.C. § 1981a; The Age\nDiscrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Americans With Disabilities Act, as amended, 42 U.S.C. §\n12101 et seq.; Fair Labor\nStandards Act, as amended, 29 U.S.C. § 201, et seq.; Equal Pay Act, as amended, 29 U.S.C. § 201 et seq.; National Labor Relations Act, as\namended, 29 U.S.C. § 151 et seq.; Worker Adjustment and Retraining Notification Act, as amended, 29 U.S.C. § 2101 et seq., Employee\nRetirement Income Security Act, as amended, 29 U.S.C. § 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S.C. § 2601, et seq.;\nChapter 21 of the Texas Labor Code or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative\ninterpretation whether promulgated by Federal, State, local or other jurisdiction or political subdivision. This Agreement extinguishes any\npotential monetary recovery from employment discrimination claims you may have relating to your employment with the Company and the\ntermination of your employment existing on the Effective Date of this Agreement.\nNothing in this Agreement will prevent you from initiating or participating in any State or Federal agency administrative proceeding\nincluding proceedings before the Equal Employment Opportunity Commission or from testifying at an administrative hearing, deposition, or in\ncourt in response to a lawful subpoena.\nThis Agreement does not release or terminate any of your rights pursuant to the Indemnification Agreement dated January 18, 2011,\nbetween you and Parent (the “Indemnification Agreement”), or the Other Retirement Benefits, which shall continue in full force and effect in\naccordance with their respective terms. This Agreement does not release or waive your rights as an employee to (i) any vested benefits under a\nbenefit plan which by its terms specifically provides for the vesting of benefits prior to or upon the Effective Date, (ii) convert any insured\nbenefits under an employee benefit plan to the extent the plan allows conversion, or (iii) maintain your medical insurance in force as provided by\nthe Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).\n3. Non-Assignment. You represent and warrant that you have not assigned to any third party any claim involving the Releasees or\nauthorized any third party to assert on your behalf any claim against the Releasees. If a third party asserts a claim against the Releasees on your\nbehalf or includes you as a class member in any class action involving any claim released under this Agreement, you shall not accept any benefits\nor damages relating or arising out of such claim.\n4. Return of Property. You represent and warrant that you have returned all property, equipment, documents and other tangible things,\nincluding keys, cell phones, pagers, corporate credit cards, and laptops or other computers of Pier 1 — except for documents reflecting your\ncompensation and benefits (Other Retirement Benefits) while employed by Pier 1 — in accordance with Company’s policies and rules, effective\non your last day of work with the Company, or if you failed to do so, you agree to do so immediately upon finding any such items in your\npossession. You represent and warrant that you have not, and you agree that in the future you shall not, destroy, alter, erase, or otherwise change\nany software, data, or other information belonging to Company. Further, you hereby consent to pay Company the value of any property,\nequipment and tangible things that you fail to return in accordance with this Agreement and any monies you owe Pier 1, up to the maximum\namount allowed by law.\n5. Confidentiality. You agree that the terms of this Agreement shall be confidential. You shall not disclose the terms to anyone other than\nyour spouse, attorney, accountant, financial planner, or tax advisor, without Company’s prior written approval, except as may be required by law\nand/or court order. You shall not disclose the terms of this Agreement to your spouse, attorney, accountant, financial planner, or tax advisor\nunless the receiving party agrees to abide by the confidentiality provisions of this Agreement, and you agree to be responsible for any breach of\nconfidentiality by your spouse, attorney, accountant, financial planner and/or tax advisor. If you receive a request pursuant to applicable law to\ndisclose the existence or terms of this Agreement, you shall promptly notify Company’s Legal Department to enable Company to seek a\nprotective order or other appropriate remedy prior to any disclosure made by you.\n6. Confidential Information and Trade Secrets. You acknowledge that during your employment with Company, you have been given\naccess to and use of trade secrets, proprietary data, or other confidential information, which were developed at considerable effort and expense,\nand which if acquired by competitors of Pier 1 would give them an unfair business advantage. You understand and agree that this information, if\nused by or disclosed to anyone but Pier 1 and its employees with a need to know, will place Pier 1 at a competitive disadvantage. You further\nacknowledge that you have not used or disclosed such trade secrets, proprietary data, or other confidential information during your employment\nwith Company, except as authorized in writing by Company or in the normal exercise of your job duties for the benefit of Pier 1.\nIn further consideration for the above-recited covenants, promises and statements of understanding between the parties, including the\npayment described in Section 1 of this Agreement, to which you are otherwise not entitled, you agree that you shall not, without the prior express\nwritten consent of the Company, directly or indirectly communicate or disclose, or use for your benefit or the benefit of any other person, firm,\nassociation, or corporation, any of the Releasees’ trade secrets, proprietary data or other confidential information, which trade secrets, proprietary\ndata and other confidential information were communicated to or otherwise learned or acquired by you during your employment relationship\nwith the Company, except that you may disclose such matters to the extent that disclosure is required (a) at the Company’s direction or (b) by a\nlawful order of a court or other governmental agency of competent jurisdiction. For so long as such matters remain trade secrets, proprietary data,\nor other confidential information, you agree that you will not use such trade secrets, proprietary data, or other confidential information in any\nway or in any capacity other than as expressly consented to by the Company.\nNothing in the above paragraph shall be construed to restrict you from using your general knowledge, skills, and experience acquired\nduring your employment with the Company in future employment whether or not such employment is with a direct competitor of Pier 1.\nSuch trade secrets, proprietary data, or other confidential information include, but are not limited to, the following: information concerning\nstrategic marketing plans or product development plans; cost or pricing information; vendor or supplier information; business plans or methods;\ncustomer lists or data; information regarding proposed joint ventures, mergers, acquisitions, and other such anticipated or contemplated business\nventures of Pier 1; projects, whether completed, in progress, or only contemplated; real estate plans and strategy; investment opportunities and\nother information related to investments of Pier 1, whether past, present or future; confidential financial information; financial planning and\nanalysis modeling and methodology; intellectual property; financial accounting and reporting; tax planning and strategy; personnel information;\nideas; discoveries; designs; inventions; improvements; know-how; writings and other works of authorship; computer programs; accounting\ninformation; lists; analyses; studies; technology; programs; flow charts; information regarding products or techniques; strategies; or, any other\nbusiness information that relates in any manner to the actual or anticipated business of Pier 1, and which they have not intentionally disclosed to\nits competitors or to the general public.\nThe obligations set forth herein shall be in addition to any other confidentiality obligations that you may have to any of the Releasees.\nYou further acknowledge that the injury the Releasees will suffer in the event of your breach of any covenant or agreement set forth in\nSections 5, 6, 7, 8 or 9 herein cannot be compensated by monetary damages alone, and you therefore agree that the Releasees, in addition to and\nwithout limiting any other remedies or otherwise, shall have the right to obtain an injunction against you.\n7. Nondisparagement. You shall not make any untrue, misleading, or disparaging statements, or comments concerning the Releasees.\nDuring their tenure, the current Executive Officers and members of the Board of Directors of Parent shall not make any untrue, misleading, or\ndisparaging public statements or comments about you. The Parties agree that the commitments in this paragraph will not limit or prohibit them\nfrom testifying truthfully, or providing truthful information in connection with any pending or threatened legal proceeding or to any\ngovernmental agency or as otherwise required by law.\n8. Nonsolicitation. For a period of one year beginning on the day following the Effective Date, you shall not under any circumstances\nemploy, solicit the employment of, or accept the services of, any “protected person” or recommend the employment of any “protected person” to\nany other business organization. A “protected person” is a person known by you to be employed by Pier 1 or to have been employed by Pier 1\nwithin six months prior to the commencement of conversations with such person with respect to employment. The term “subsidiary” as used in\nthis Agreement means a corporation or other entity more than 50 percent of whose outstanding securities or interests representing the right, other\nthan as affected by events of default, to vote for the election of directors or otherwise select a similar governing body is owned by Pier 1.\n \nAs to (i) each “protected person” to whom the foregoing applies, (ii) each limitation on (A) employment, (B) solicitation and\n(C) acceptance of services, of each “protected person” and (iii) each month of the period during which the provisions of this Section 8 apply to\neach of the foregoing, the provisions set forth in this Section 8 are deemed to be separate and independent agreements and in the event of\nunenforceability of any such agreement, such unenforceable agreement shall be deemed automatically deleted from the provisions hereof and\nsuch deletion shall not affect the enforceability of any other provision of this Section 8 or any other term of this Agreement.\n9. Cooperation. You agree to cooperate with Pier 1 at such reasonable times and places as may be reasonably requested, and to provide all\ninformation that may be reasonably requested with respect to any matter involving your present or former relationship with Pier 1, the work you\nhave performed for Pier 1, or present or former employees, so long as such requests do not unreasonably interfere with any other job or\nsignificant personal activity in which you are engaged. This specifically includes your assistance in regulatory inquiries, investigations and\nlitigation matters, including depositions and/or court appearances in connection therewith, which may include appearances in other states. Pier 1\nwill make every effort to schedule these matters at times and locations convenient for you should they arise. The Company will reimburse you\nfor reasonable expenses, such as telephone, travel, lodging, and meal expenses, you incur at the request of Pier 1, consistent with the Company’s\ngenerally applicable policies for employee expenses.\n10. No Authority. As of your last day of employment with Company, you shall have no authority to obligate Pier 1 in any manner, and\nshall not enter into, or attempt to enter into, any contracts on their behalf. You shall not make any representation, warranty, or other statement, or\ntake any action, that may be construed by a third party to indicate that you have authority to obligate Pier 1 or to enter into a contract on any of\ntheir behalf.\n11. No Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an admission that\nany of the Releasees or you have acted wrongfully with respect to each other. Each of the Releasees and you specifically deny and disclaim any\nsuch liability or wrongful acts.\n12. Venue and Applicable Law. This Agreement shall be performed in Fort Worth, Texas, and the laws of the State of Texas shall govern\nthe enforceability, interpretation and legal effect of this\nAgreement. The parties shall submit to the jurisdiction of the federal and state courts sitting in Tarrant County, Texas, for all purposes relating to\nthe validity, interpretation or enforcement of this Agreement, including, without limitation, any application for injunctive relief.\n13. Remedies. Any material breach by you of the terms and conditions contained in this Agreement shall give Company the right to\ndiscontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable law, and shall\nentitle Pier 1 to legal, injunctive, or other equitable relief on account of such breach.\n14. Entire Agreement. This Agreement together with the agreements and plans described on Annex A to this Agreement constitute our\nentire agreement and supersedes any prior agreements or understandings between Company, Parent and you with respect to the subject matter\nherein, except for any confidentiality obligations referred to elsewhere herein. You acknowledge that you enter into this Agreement without\nreliance on any written or oral promise or representation, other than those contained in this Agreement.\n15. Severability. If any provision of this Agreement shall be determined by a court to be void or unenforceable, the remaining provisions\nshall remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a part of this Agreement.\n16. Headings. The headings in each Section herein are for convenience of reference only and shall be of no legal effect in the interpretation\nof the terms hereof.\n17. Waiver. If you breach any term of the Agreement, any delay by Pier 1 in enforcing the Agreement shall not be deemed a waiver or\nacceptance. No waiver shall bind Pier 1 unless supported by consideration, executed in writing by the party to be bound, and delivered to you by\nan authorized officer or agent.\n18. Attorneys’ Fees. In any dispute between Company or Parent and you regarding the terms of this Agreement and/or any alleged breach\nthereof, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees arising out of such dispute, provided that such\nrecovery is not otherwise prohibited by law.\n \n19. Knowing and Voluntary Agreement. You are advised in writing to consult with an attorney before executing this Agreement.\nYou acknowledge and agree that: (i) after you received a copy of this Agreement in writing you had adequate opportunity to review this\nAgreement; (ii) you fully understand its contents; (iii) you have been advised to consult an attorney before signing it; and (iv) you enter\ninto this Agreement knowingly, veluntarily and after any consultations with your attorney or other advisor, as you deem appropriate.\n20. Review Period, Execution and Revocation. In order to be eligible for the payment described in Section 1 above, you must sign and\nreturn the original of this Agreement by 5:00 p.m., on March13, 2015 (the “Due Date) to Michael A. Carter at the offices of the Company.\nYou acknowledge that you will have had at least 21 calendar days from your receipt of this Agreement on February 20, 2015 to consider\nwhether to accept its terms. Any changes to this Agreement, whether material or immaterial, shall not restart the running of the 21-day period.\nAfter signing the Agreement and properly returning it to the Company, you shall have seven calendar days to consider whether to revoke it\n(the “Revocation Period”). If you choose to revoke this Agreement, you must do so by serving written notice to Pier 1 Services Company by\nfacsimile at 817-\n334-0191, Attn: Legal Department, before the expiration of the Revocation Period and obtain written confirmation of delivery. You acknowledge that this Agreement shall become effective, fully enforceable and irrevocable upon the expiration of the seven-day period following your signing of this Agreement. This Agreement shall be null and void if: (i) you fail to execute and return the original of this Agreement on or prior to the Due Date; or (ii) you sign it within 21 days, but revoke your execution within seven calendar days after signing it. IN WITNESS WHEREOQF, this Confidential Retirement Agreement and General Release has been executed by each of the listed parties below.\nEMPLOYEE:\nPrinted Name: Charles H. Turner\nSignature: /s/ Charles H. Turner\nDate: March 1, 2015\nAddress: 4612 Lakeside Drive\nColleyville, TX\nPIER 1 SERVICES COMPANY,\na Delaware statutory trust\nBy: Pier 1 Holdings, Inc., a Delaware corporation,\nIts managing trustee\nBy: /s/ Michael A. Carter\nMichael A. Carter\nSR VP Compliance and General Counsel\nPIER 1 IMPORTS, INC.\nBy: /s/ Alexander W. Smith\nAlexander W. Smith, President and CEO\nDate: March 16, 2015\nAddress: 100 Pier 1 Place, Fort Worth TX 76102\nAttn: Michael A. Carter, General Counsel	EX-10.21 2 d881010dex1021.htm EX-10.21\nExhibit 10.21\nCONFIDENTIAL RETIREMENT AGREEMENT AND GENERAL RELEASE\nThis Confidential Retirement Agreement and General Release ("Agreement"), entered into by and between Charles H. Turner ("you" or the\n"Employee"), Pier 1 Services Company ("Company") and Pier 1 Imports, Inc. ("Parent") (collectively, the "Parties") as of the Effective Date (as\ndefined below), arises from your retirement and the associated termination of your employment relationship with the Company. Company,\nParent, their subsidiaries and affiliates are together sometimes referred to herein as "Pier 1."\nThis Agreement is legally-binding. You are hereby advised to consult with an attorney before signing it.\nYou acknowledge that your retirement from the Company and the associated termination of your employment is effective February 10,\n2015 (the "Effective Date"). The Company has offered you the payments and other benefits described in Section 1 below in conjunction with\nyour retirement. You agree that you are not entitled to any payment provided for in this Agreement unless you execute this Agreement by signing\nthe signature line at the conclusion of this Agreement, and do not revoke it during the revocation period described below. You acknowledge that\nas\nof\nthe\nEffective\nDate\nyou\nhave\nresigned\nfrom\nall\npositions\nas\nan\nofficer,\ndirector\nor\ntrustee\nof\nPier\n1\nand\nwith\nrespect\nto\nany\nemployee\nbenefit\nplan or other arrangement or accommodation of Pier 1 as to which you have been designated as an officer, director, agent, trustee or other\ncapacity.\n1. Retirement Benefits. In consideration for the promises, covenants and releases contained in this Agreement you will receive a lump-\nsum payment from Company in the amount of $1,083,293.00, subject to applicable taxes and related withholdings. This payment shall be paid\nwithin six business days following the expiration of the Revocation Period, defined herein, provided you have executed and delivered this\nAgreement to the Company in the manner set forth herein without revoking the Agreement. In the event that you revoke this Agreement, you will\nbe ineligible for any payment provided for herein. You acknowledge that this payment is in addition to any monies or benefits to which you\nare\nalready otherwise entitled under the plans and arrangements described on Annex A to this Agreement (the "Other Retirement Benefits") and that\nthe payment represents good and sufficient consideration for your promises, covenants and releases set forth in this Agreement.\n2. General Release. In consideration for the payment described in Section 1 above, to which you are otherwise not entitled, you on\nbehalf of yourself, your family, assigns, representatives, agents, estate, heirs, beneficiaries, executors, administrators, successors, and/or\nattorneys, if any waive and release Company, Parent, their affiliates and subsidiaries, and all of their current and former respective officers,\ndirectors, employees, stockholders, representatives and agents, including their successors and assigns (collectively the "Releasees"), with respect\nto any and all claims, losses, liabilities, obligations and causes of action, known and unknown, arising out of, connected with, or relating to:\n(i) your employment; (ii) the Releasees' refusal or failure to continue your employment; or (iii) the termination of your employment, including,\nbut not limited to, claims for compensation, commissions, bonuses, stock options, other wages and benefits, breach of contract, wrongful\ntermination, impairment of economic opportunity, intentional infliction of emotional distress, claims based on persona injury, work-related\naccident, any breach of implied or express covenant of good faith and fair dealing, violation of public policy, or any other contract, tort or\npersonal injury claim, or claim based on any municipal, state or federal statute, regulation or ordinance relating to employment, employment\ndiscrimination or retaliation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. S 2000 et seq.; The\nCivil Rights Act of 1866, as amended, 42 U.S.C. 8 1981; The Civil Rights Act of 1991, as amended, 42 U.S.C. 8 1981a; The Age\nDiscrimination in Employment Act of 1967, as amended, 29 U.S.C. S 621 et seq.; Americans With Disabilities Act, as amended, 42 U.S.C.\nS\n12101 et seq.; Fair Labor\nStandards Act, as amended, 29 U.S.C. 8 201, et seq.; Equal Pay Act, as amended, 29 U.S.C. 8 201 et seq.; National Labor Relations Act, as\namended, 29 U.S.C. S 151 et seq.; Worker Adjustment and Retraining Notification Act, as amended, 29 U.S.C. 8 2101 et seq., Employee\nRetirement Income Security Act, as amended, 29 U.S.C. 8 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S.C. 2601, et seq.;\nChapter 21 of the Texas Labor Code or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative\ninterpretation whether promulgated by Federal, State, local or other jurisdiction or political subdivision. This Agreement extinguishes any\npotential monetary recovery from employment discrimination claims you may have relating to your employment with the Company and the\ntermination of your employment existing on the Effective Date of this Agreement.\nNothing in this Agreement will prevent you from initiating or participating in any State or Federal agency administrative proceeding\nincluding proceedings before the Equal Employment Opportunity Commission or from testifying at an administrative hearing, deposition, or in\ncourt in response to a lawful subpoena.\nThis Agreement does not release or terminate any of your rights pursuant to the Indemnification Agreement dated January 18, 2011,\nbetween you and Parent (the "Indemnification Agreement"), or the Other Retirement Benefits, which shall continue in full force and effect in\naccordance with their respective terms. This Agreement does not release or waive your rights as an employee to (i) any vested benefits under a\nbenefit plan which by its terms specifically provides for the vesting of benefits prior to or upon the Effective Date, (ii) convert any insured\nbenefits under an employee benefit plan to the extent the plan allows conversion, or (iii) maintain your medical insurance in force as provided by\nthe Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).\n3. Non-Assignment. You represent and warrant that you have not assigned to any third party any claim involving the Releasees or\nauthorized any third party to assert on your behalf any claim against the Releasees. If a third party asserts a claim against the Releasees on your\nbehalf or includes you as a class member in any class action involving any claim released under this Agreement, you shall not accept any benefits\nor damages relating or arising out of such claim.\n4. Return of Property. You represent and warrant that you have returned all property, equipment, documents and other tangible things,\nincluding keys, cell phones, pagers, corporate credit cards, and laptops or other computers of Pier 1 - except for documents reflecting your\ncompensation and benefits (Other Retirement Benefits) while employed by Pier 1 - in accordance with Company's policies and rules, effective\non your last day of work with the Company, or if you failed to do so, you agree to do so immediately upon finding any such items in your\npossession. You represent and warrant that you have not, and you agree that in the future you shall not, destroy, alter, erase, or otherwise change\nany software, data, or other information belonging to Company. Further, you hereby consent to pay Company the value of any property,\nequipment and tangible things that you fail to return in accordance with this Agreement and any monies you owe Pier 1, up to the maximum\namount allowed by law.\n5. Confidentiality. You agree that the terms of this Agreement shall be confidential. You shall not disclose the terms to anyone other than\nyour spouse, attorney, accountant, financial planner, or tax advisor, without Company's prior written approval, except as may be required by law\nand/or court order. You shall not disclose the terms of this Agreement to your spouse, attorney, accountant, financial planner, or tax advisor\nunless the receiving party agrees to abide by the confidentiality provisions of this Agreement, and you agree to be responsible for any breach of\nconfidentiality by your spouse, attorney, accountant, financial planner and/or tax advisor. If you receive a request pursuant to applicable law\nto\ndisclose the existence or terms of this Agreement, you shall promptly notify Company's Legal Department to enable Company to seek a\nprotective order or other appropriate remedy prior to any disclosure made by you.\n6. Confidential Information and Trade Secrets. You acknowledge that during your employment with Company, you have been given\naccess to and use of trade secrets, proprietary data, or other confidential information, which were developed at considerable effort and expense,\nand which if acquired by competitors of Pier 1 would give them an unfair business advantage. You understand and agree that this information,\nif\nused by or disclosed to anyone but Pier 1 and its employees with a need to know, will place Pier 1 at a competitive disadvantage You further\nacknowledge that you have not used or disclosed such trade secrets, proprietary data, or other confidential information during your employment\nwith Company, except as authorized in writing by Company or in the normal exercise of your job duties for the benefit of Pier 1.\nIn further consideration for the above-recited covenants, promises and statements of understanding between the parties, including the\npayment described in Section 1 of this Agreement, to which you are otherwise not entitled, you agree that you shall not, without the prior express\nwritten consent of the Company, directly or indirectly communicate or disclose, or use for your benefit or the benefit of any other person, firm,\nassociation, or corporation, any of the Releasees' trade secrets, proprietary data or other confidential information, which trade secrets, proprietary\ndata and other confidential information were communicated to or otherwise learned or acquired by you during your employment relationship\nwith the Company, except that you may disclose such matters to the extent that disclosure is required (a) at the Company's direction or (b) by a\nlawful order of a court or other governmental agency of competent jurisdiction. For so long as such matters remain trade secrets, proprietary data,\nor other confidential information, you agree that you will not use such trade secrets, proprietary data, or other confidential information in any\nway or in any capacity other than as expressly consented to by the Company.\nNothing in the above paragraph shall be construed to restrict you from using your general knowledge, skills, and experience acquired\nduring your employment with the Company in future employment whether or not such employment is with a direct competitor of Pier 1.\nSuch trade secrets, proprietary data, or other confidential information include, but are not limited to, the following: information concerning\nstrategic marketing plans or product development plans; cost or pricing information; vendor or supplier information; business plans or methods;\ncustomer lists or data; information regarding proposed joint ventures, mergers, acquisitions, and other such anticipated or contemplated business\nventures of Pier 1; projects, whether completed, in progress, or only contemplated; real estate plans and strategy; investment opportunities and\nother information related to investments of Pier 1, whether past, present or future; confidential financial information; financial planning and\nanalysis modeling and methodology; intellectual property; financial accounting and reporting; tax planning and strategy; personnel\ninformation;\nideas; discoveries; designs; inventions; improvements; know-how; writings and other works of authorship; computer programs; accounting\ninformation; lists; analyses; studies; technology; programs; flow charts; information regarding products or techniques; strategies; or, any other\nbusiness information that relates in any manner to the actual or anticipated business of Pier 1, and which they have not intentionally disclosed to\nits competitors or to the general public.\nThe obligations set forth herein shall be in addition to any other confidentiality obligations that you may have to any of the Releasees.\nYou further acknowledge that the injury the Releasees will suffer in the event of your breach of any covenant or agreement set forth\nin\nSections 5, 6, 7, 8 or 9 herein cannot be compensated by monetary damages alone, and you therefore agree that the Releasees, in addition to and\nwithout limiting any other remedies or otherwise, shall have the right to obtain an injunction against you.\n7. Nondisparagement. You shall not make any untrue, misleading, or disparaging statements, or comments concerning the Releasees.\nDuring their tenure, the current Executive Officers and members of the Board of Directors of Parent shall not make any untrue, misleading,\nor\ndisparaging public statements or comments about you. The Parties agree that the commitments in this paragraph will not limit or prohibit them\nfrom testifying truthfully, or providing truthful information in connection with any pending or threatened legal proceeding or to any\ngovernmental agency or as otherwise required by law.\n8. Nonsolicitation. For a period of one year beginning on the day following the Effective Date, you shall not under any circumstances\nemploy, solicit the employment of, or accept the services of, any "protected person" or recommend the employment of any "protected person"\nto\nany other business organization. A "protected person" is a person known by you to be employed by Pier 1 or to have been employed by Pier 1\nwithin six months prior to the commencement of conversations with such person with respect to employment. The term "subsidiary." as used in\nthis Agreement means a corporation or other entity more than 50 percent of whose outstanding securities or interests representing the right, other\nthan as affected by events of default, to vote for the election of directors or otherwise select a similar governing body is owned by Pier 1.\nAs to (i) each "protected person" to whom the foregoing applies, (ii) each limitation on (A) employment, (B) solicitation and\n(C) acceptance of services, of each "protected person" and (iii) each month of the period during which the provisions of this Section 8 apply\nto\neach of the foregoing, the provisions set forth in this Section 8 are deemed to be separate and independent agreements and in the event of\nunenforceability of any such agreement, such unenforceable agreement shall be deemed automatically deleted from the provisions hereof and\nsuch deletion shall not affect the enforceability of any other provision of this Section 8 or any other term of this Agreement.\n9. Cooperation. You agree to cooperate with Pier 1 at such reasonable times and places as may be reasonably requested, and to provide all\ninformation that may be reasonably requested with respect to any matter involving your present or former relationship with Pier 1, the work you\nhave performed for Pier 1, or present or former employees, so long as such requests do not unreasonably interfere with any other job or\nsignificant personal activity in which you are engaged. This specifically includes your assistance in regulatory inquiries, investigations and\nlitigation matters, including depositions and/or court appearances in connection therewith, which may include appearances in other states. Pier\n1\nwill make every effort to schedule these matters at times and locations convenient for you should they arise. The Company will reimburse you\nfor reasonable expenses, such as telephone, travel, lodging, and meal expenses, you incur at the request of Pier 1, consistent with the Company's\ngenerally applicable policies for employee expenses.\n10. No Authority. As of your last day of employment with Company, you shall have no authority to obligate Pier 1 in any manner, and\nshall not enter into, or attempt to enter into, any contracts on their behalf. You shall not make any representation, warranty, or other statement, or\ntake any action, that may be construed by a third party to indicate that you have authority to obligate Pier 1 or to enter into a contract on any of\ntheir behalf.\n11. No Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an admission that\nany of the Releasees or you have acted wrongfully with respect to each other. Each of the Releasees and you specifically deny and disclaim any\nsuch liability or wrongful acts.\n12. Venue and Applicable Law. This Agreement shall be performed in Fort Worth, Texas, and the laws of the State of Texas shall govern\nthe enforceability, interpretation and legal effect of this\nAgreement. The parties shall submit to the jurisdiction of the federal and state courts sitting in Tarrant County, Texas, for all purposes relating\nto\nthe validity, interpretation or enforcement of this Agreement, including, without limitation, any application for injunctive relief.\n13. Remedies. Any material breach by you of the terms and conditions contained in this Agreement shall give Company the right to\ndiscontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable law, and shall\nentitle Pier 1 to legal, injunctive, or other equitable relief on account of such breach.\n14. Entire Agreement. This Agreement together with the agreements and plans described on Annex A to this Agreement constitute our\nentire agreement and supersedes any prior agreements or understandings between Company, Parent and you with respect to the subject matter\nherein, except for any confidentiality obligations referred to elsewhere herein. You acknowledge that you enter into this Agreement without\nreliance on any written or oral promise or representation, other than those contained in this Agreement.\n15. Severability. If any provision of this Agreement shall be determined by a court to be void or unenforceable, the remaining provisions\nshall remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a part of this Agreement.\n16. Headings. The headings in each Section herein are for convenience of reference only and shall be of no legal effect in the interpretation\nof the terms hereof.\n17. Waiver. If you breach any term of the Agreement, any delay by Pier 1 in enforcing the Agreement shall not be deemed a waiver or\nacceptance. No waiver shall bind Pier 1 unless supported by consideration, executed in writing by the party to be bound, and delivered to you by\nan authorized officer or agent.\n18. Attorneys' Fees. In any dispute between Company or Parent and you regarding the terms of this Agreement and/or any alleged breach\nthereof, the prevailing party shall be entitled to recover its costs and reasonable attorneys' fees arising out of such dispute, provided that such\nrecovery is not otherwise prohibited by law.\n19. Knowing and Voluntary. Agreement. You are advised in writing to consult with an attorney before executing this Agreement.\nYou acknowledge and agree that: (i) after you received a copy of this Agreement in writing you had adequate opportunity to review this\nAgreement; (ii) you fully understand its contents; (iii) you have been advised to consult an attorney. before signing it; and (iv) you enter\ninto this Agreement knowingly, voluntarily and after any consultations with your attorney or other advisor, as you deem appropriate.\n20. Review Period, Execution and Revocation. In order to be eligible for the payment described in Section 1 above, you must sign and\nreturn the original of this Agreement by 5:00 p.m., on March13, 2015 (the "Due Date") to Michael A. Carter at the offices of the Company.\nYou acknowledge that you will have had at least 21 calendar days from your receipt of this Agreement on February 20, 2015 to consider\nwhether to accept its terms. Any changes to this Agreement, whether material or immaterial, shall not restart the running of the 21-day period.\nAfter signing the Agreement and properly returning it to the Company, you shall have seven calendar days to consider whether to revoke\nit\n(the "Revocation Period"). If you choose to revoke this Agreement, you must do so by serving written notice to Pier 1 Services Company by\nfacsimile at 817-\n334-0191, Attn: Legal Department, before the expiration of the Revocation Period and obtain written confirmation of delivery. You acknowledge\nthat this Agreement shall become effective, fully enforceable and irrevocable upon the expiration of the seven-day period following your signing\nof this Agreement. This Agreement shall be null and void if: (i) you fail to execute and return the original of this Agreement on or prior to the\nDue Date; or (ii) you sign it within 21 days, but revoke your execution within seven calendar days after signing it.\nIN\nWITNESS WHEREOF, this Confidential Retirement Agreement and General Release has been executed\nby each of the listed parties below.\nEMPLOYEE:\nPIER 1 SERVICES COMPANY,\na Delaware statutory trust\nPrinted Name: Charles H. Turner\nBy:\nPier 1 Holdings, Inc., a Delaware corporation,\nIts managing trustee\nSignature:\n/s/ Charles H. Turner\nBy:\n/s/ Michael A. Carter\nDate:\nMarch 1, 2015\nMichael A. Carter\nAddress:\n4612 Lakeside Drive\nSR VP Compliance and General Counsel\nColleyville, TX\nPIER 1 IMPORTS, INC.\nBy:\n/s/ Alexander W. Smith\nAlexander W. Smith, President and CEO\nDate:\nMarch 16, 2015\nAddress: 100 Pier 1 Place, Fort Worth TX 76102\nAttn:\nMichael A. Carter, General Counsel	EX-10.21 2 d881010dex1021.htm EX-10.21\nExhibit 10.21\nCONFIDENTIAL RETIREMENT AGREEMENT AND GENERAL RELEASE\nThis Confidential Retirement Agreement and General Release (“Agreement”), entered into by and between Charles H. Turner (“you” or the\n“Employee”), Pier 1 Services Company (“Company”) and Pier 1 Imports, Inc. (“Parent”) (collectively, the “Parties”) as of the Effective Date (as\ndefined below), arises from your retirement and the associated termination of your employment relationship with the Company. Company,\nParent, their subsidiaries and affiliates are together sometimes referred to herein as “Pier 1.”\nThis Agreement is legally-binding. You are hereby advised to consult with an attorney before signing it.\nYou acknowledge that your retirement from the Company and the associated termination of your employment is effective February 10,\n2015 (the “Effective Date”). The Company has offered you the payments and other benefits described in Section 1 below in conjunction with\nyour retirement. You agree that you are not entitled to any payment provided for in this Agreement unless you execute this Agreement by signing\nthe signature line at the conclusion of this Agreement, and do not revoke it during the revocation period described below. You acknowledge that\nas of the Effective Date you have resigned from all positions as an officer, director or trustee of Pier 1 and with respect to any employee benefit\nplan or other arrangement or accommodation of Pier 1 as to which you have been designated as an officer, director, agent, trustee or other\ncapacity.\n1. Retirement Benefits. In consideration for the promises, covenants and releases contained in this Agreement you will receive a lump-\nsum payment from Company in the amount of $1,083,293.00, subject to applicable taxes and related withholdings. This payment shall be paid\nwithin six business days following the expiration of the Revocation Period, defined herein, provided you have executed and delivered this\nAgreement to the Company in the manner set forth herein without revoking the Agreement. In the event that you revoke this Agreement, you will\nbe ineligible for any payment provided for herein. You acknowledge that this payment is in addition to any monies or benefits to which you are\nalready otherwise entitled under the plans and arrangements described on Annex A to this Agreement (the “Other Retirement Benefits”) and that\nthe payment represents good and sufficient consideration for your promises, covenants and releases set forth in this Agreement.\n2. General Release. In consideration for the payment described in Section 1 above, to which you are otherwise not entitled, you – on\nbehalf of yourself, your family, assigns, representatives, agents, estate, heirs, beneficiaries, executors, administrators, successors, and/or\nattorneys, if any — waive and release Company, Parent, their affiliates and subsidiaries, and all of their current and former respective officers,\ndirectors, employees, stockholders, representatives and agents, including their successors and assigns (collectively the “Releasees”), with respect\nto any and all claims, losses, liabilities, obligations and causes of action, known and unknown, arising out of, connected with, or relating to:\n(i) your employment; (ii) the Releasees’ refusal or failure to continue your employment; or (iii) the termination of your employment, including,\nbut not limited to, claims for compensation, commissions, bonuses, stock options, other wages and benefits, breach of contract, wrongful\ntermination, impairment of economic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related\naccident, any breach of implied or express covenant of good faith and fair dealing, violation of public policy, or any other contract, tort or\npersonal injury claim, or claim based on any municipal, state or federal statute, regulation or ordinance relating to employment, employment\ndiscrimination or retaliation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq.; The\nCivil Rights Act of 1866, as amended, 42 U.S .C . § 1981; The Civil Rights Act of 1991, as amended, 42 U.S.C . § 1981a; The Age\nDiscrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Americans With Disabilities Act, as amended, 42 U.S.C . §\n12101 et seq.; Fair Labor\nStandards Act, as amended, 29 U.S.C . § 201, et seq.; Equal Pay Act, as amended, 29 U.S.C. § 201 et seq.; National Labor Relations Act, as\namended, 29 U.S .C . § 151 et seq.; Worker Adjustment and Retraining Notification Act, as amended, 29 U.S.C . § 2101 et seq., Employee\nRetirement Income Security Act, as amended, 29 U.S.C . § 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S .C . § 2601, et seq.;\nChapter 21 of the Texas Labor Code or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative\ninterpretation whether promulgated by Federal, State, local or other jurisdiction or political subdivision. This Agreement extinguishes any\npotential monetary recovery from employment discrimination claims you may have relating to your employment with the Company and the\ntermination of your employment existing on the Effective Date of this Agreement.\nNothing in this Agreement will prevent you from initiating or participating in any State or Federal agency administrative proceeding\nincluding proceedings before the Equal Employment Opportunity Commission or from testifying at an administrative hearing, deposition, or in\ncourt in response to a lawful subpoena.\nThis Agreement does not release or terminate any of your rights pursuant to the Indemnification Agreement dated January 18, 2011,\nbetween you and Parent (the “Indemnification Agreement”), or the Other Retirement Benefits, which shall continue in full force and effect in\naccordance with their respective terms. This Agreement does not release or waive your rights as an employee to (i) any vested benefits under a\nbenefit plan which by its terms specifically provides for the vesting of benefits prior to or upon the Effective Date, (ii) convert any insured\nbenefits under an employee benefit plan to the extent the plan allows conversion, or (iii) maintain your medical insurance in force as provided by\nthe Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).\n3. Non-Assignment. You represent and warrant that you have not assigned to any third party any claim involving the Releasees or\nauthorized any third party to assert on your behalf any claim against the Releasees. If a third party asserts a claim against the Releasees on your\nbehalf or includes you as a class member in any class action involving any claim released under this Agreement, you shall not accept any benefits\nor damages relating or arising out of such claim.\n4. Return of Property. You represent and warrant that you have returned all property, equipment, documents and other tangible things,\nincluding keys, cell phones, pagers, corporate credit cards, and laptops or other computers of Pier 1 — except for documents reflecting your\ncompensation and benefits (Other Retirement Benefits) while employed by Pier 1 — in accordance with Company’s policies and rules, effective\non your last day of work with the Company, or if you failed to do so, you agree to do so immediately upon finding any such items in your\npossession. You represent and warrant that you have not, and you agree that in the future you shall not, destroy, alter, erase, or otherwise change\nany software, data, or other information belonging to Company. Further, you hereby consent to pay Company the value of any property,\nequipment and tangible things that you fail to return in accordance with this Agreement and any monies you owe Pier 1, up to the maximum\namount allowed by law.\n5. Confidentiality. You agree that the terms of this Agreement shall be confidential. You shall not disclose the terms to anyone other than\nyour spouse, attorney, accountant, financial planner, or tax advisor, without Company’s prior written approval, except as may be required by law\nand/or court order. You shall not disclose the terms of this Agreement to your spouse, attorney, accountant, financial planner, or tax advisor\nunless the receiving party agrees to abide by the confidentiality provisions of this Agreement, and you agree to be responsible for any breach of\nconfidentiality by your spouse, attorney, accountant, financial planner and/or tax advisor. If you receive a request pursuant to applicable law to\ndisclose the existence or terms of this Agreement, you shall promptly notify Company’s Legal Department to enable Company to seek a\nprotective order or other appropriate remedy prior to any disclosure made by you.\n6. Confidential Information and Trade Secrets. You acknowledge that during your employment with Company, you have been given\naccess to and use of trade secrets, proprietary data, or other confidential information, which were developed at considerable effort and expense,\nand which if acquired by competitors of Pier 1 would give them an unfair business advantage. You understand and agree that this information, if\nused by or disclosed to anyone but Pier 1 and its employees with a need to know, will place Pier 1 at a competitive disadvantage. You further\nacknowledge that you have not used or disclosed such trade secrets, proprietary data, or other confidential information during your employment\nwith Company, except as authorized in writing by Company or in the normal exercise of your job duties for the benefit of Pier 1.\nIn further consideration for the above-recited covenants, promises and statements of understanding between the parties, including the\npayment described in Section 1 of this Agreement, to which you are otherwise not entitled, you agree that you shall not, without the prior express\nwritten consent of the Company, directly or indirectly communicate or disclose, or use for your benefit or the benefit of any other person, firm,\nassociation, or corporation, any of the Releasees’ trade secrets, proprietary data or other confidential information, which trade secrets, proprietary\ndata and other confidential information were communicated to or otherwise learned or acquired by you during your employment relationship\nwith the Company, except that you may disclose such matters to the extent that disclosure is required (a) at the Company’s direction or (b) by a\nlawful order of a court or other governmental agency of competent jurisdiction. For so long as such matters remain trade secrets, proprietary data,\nor other confidential information, you agree that you will not use such trade secrets, proprietary data, or other confidential information in any\nway or in any capacity other than as expressly consented to by the Company.\nNothing in the above paragraph shall be construed to restrict you from using your general knowledge, skills, and experience acquired\nduring your employment with the Company in future employment whether or not such employment is with a direct competitor of Pier 1.\nSuch trade secrets, proprietary data, or other confidential information include, but are not limited to, the following: information concerning\nstrategic marketing plans or product development plans; cost or pricing information; vendor or supplier information; business plans or methods;\ncustomer lists or data; information regarding proposed joint ventures, mergers, acquisitions, and other such anticipated or contemplated business\nventures of Pier 1; projects, whether completed, in progress, or only contemplated; real estate plans and strategy; investment opportunities and\nother information related to investments of Pier 1, whether past, present or future; confidential financial information; financial planning and\nanalysis modeling and methodology; intellectual property; financial accounting and reporting; tax planning and strategy; personnel information;\nideas; discoveries; designs; inventions; improvements; know-how; writings and other works of authorship; computer programs; accounting\ninformation; lists; analyses; studies; technology; programs; flow charts; information regarding products or techniques; strategies; or, any other\nbusiness information that relates in any manner to the actual or anticipated business of Pier 1, and which they have not intentionally disclosed to\nits competitors or to the general public.\nThe obligations set forth herein shall be in addition to any other confidentiality obligations that you may have to any of the Releasees.\nYou further acknowledge that the injury the Releasees will suffer in the event of your breach of any covenant or agreement set forth in\nSections 5, 6, 7, 8 or 9 herein cannot be compensated by monetary damages alone, and you therefore agree that the Releasees, in addition to and\nwithout limiting any other remedies or otherwise, shall have the right to obtain an injunction against you.\n7. Nondisparagement. You shall not make any untrue, misleading, or disparaging statements, or comments concerning the Releasees.\nDuring their tenure, the current Executive Officers and members of the Board of Directors of Parent shall not make any untrue, misleading, or\ndisparaging public statements or comments about you. The Parties agree that the commitments in this paragraph will not limit or prohibit them\nfrom testifying truthfully, or providing truthful information in connection with any pending or threatened legal proceeding or to any\ngovernmental agency or as otherwise required by law.\n8. Nonsolicitation. For a period of one year beginning on the day following the Effective Date, you shall not under any circumstances\nemploy, solicit the employment of, or accept the services of, any “protected person” or recommend the employment of any “protected person” to\nany other business organization. A “protected person” is a person known by you to be employed by Pier 1 or to have been employed by Pier 1\nwithin six months prior to the commencement of conversations with such person with respect to employment. The term “subsidiary” as used in\nthis Agreement means a corporation or other entity more than 50 percent of whose outstanding securities or interests representing the right, other\nthan as affected by events of default, to vote for the election of directors or otherwise select a similar governing body is owned by Pier 1.\nAs to (i) each “protected person” to whom the foregoing applies, (ii) each limitation on (A) employment, (B) solicitation and\n(C) acceptance of services, of each “protected person” and (iii) each month of the period during which the provisions of this Section 8 apply to\neach of the foregoing, the provisions set forth in this Section 8 are deemed to be separate and independent agreements and in the event of\nunenforceability of any such agreement, such unenforceable agreement shall be deemed automatically deleted from the provisions hereof and\nsuch deletion shall not affect the enforceability of any other provision of this Section 8 or any other term of this Agreement.\n9. Cooperation. You agree to cooperate with Pier 1 at such reasonable times and places as may be reasonably requested, and to provide all\ninformation that may be reasonably requested with respect to any matter involving your present or former relationship with Pier 1, the work you\nhave performed for Pier 1, or present or former employees, so long as such requests do not unreasonably interfere with any other job or\nsignificant personal activity in which you are engaged. This specifically includes your assistance in regulatory inquiries, investigations and\nlitigation matters, including depositions and/or court appearances in connection therewith, which may include appearances in other states. Pier 1\nwill make every effort to schedule these matters at times and locations convenient for you should they arise. The Company will reimburse you\nfor reasonable expenses, such as telephone, travel, lodging, and meal expenses, you incur at the request of Pier 1, consistent with the Company’s\ngenerally applicable policies for employee expenses.\n10. No Authority. As of your last day of employment with Company, you shall have no authority to obligate Pier 1 in any manner, and\nshall not enter into, or attempt to enter into, any contracts on their behalf. You shall not make any representation, warranty, or other statement, or\ntake any action, that may be construed by a third party to indicate that you have authority to obligate Pier 1 or to enter into a contract on any of\ntheir behalf.\n11. No Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an admission that\nany of the Releasees or you have acted wrongfully with respect to each other. Each of the Releasees and you specifically deny and disclaim any\nsuch liability or wrongful acts.\n12. Venue and Applicable Law. This Agreement shall be performed in Fort Worth, Texas, and the laws of the State of Texas shall govern\nthe enforceability, interpretation and legal effect of this\nAgreement. The parties shall submit to the jurisdiction of the federal and state courts sitting in Tarrant County, Texas, for all purposes relating to\nthe validity, interpretation or enforcement of this Agreement, including, without limitation, any application for injunctive relief.\n13. Remedies. Any material breach by you of the terms and conditions contained in this Agreement shall give Company the right to\ndiscontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable law, and shall\nentitle Pier 1 to legal, injunctive, or other equitable relief on account of such breach.\n14. Entire Agreement. This Agreement together with the agreements and plans described on Annex A to this Agreement constitute our\nentire agreement and supersedes any prior agreements or understandings between Company, Parent and you with respect to the subject matter\nherein, except for any confidentiality obligations referred to elsewhere herein. You acknowledge that you enter into this Agreement without\nreliance on any written or oral promise or representation, other than those contained in this Agreement.\n15. Severability. If any provision of this Agreement shall be determined by a court to be void or unenforceable, the remaining provisions\nshall remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a part of this Agreement.\n16. Headings. The headings in each Section herein are for convenience of reference only and shall be of no legal effect in the interpretation\nof the terms hereof.\n17. Waiver. If you breach any term of the Agreement, any delay by Pier 1 in enforcing the Agreement shall not be deemed a waiver or\nacceptance. No waiver shall bind Pier 1 unless supported by consideration, executed in writing by the party to be bound, and delivered to you by\nan authorized officer or agent.\n18. Attorneys’ Fees. In any dispute between Company or Parent and you regarding the terms of this Agreement and/or any alleged breach\nthereof, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees arising out of such dispute, provided that such\nrecovery is not otherwise prohibited by law.\n19. Knowing and Voluntary Agreement. You are advised in writing to consult with an attorney before executing this Agreement.\nYou acknowledge and agree that: (i) after you received a copy of this Agreement in writing you had adequate opportunity to review this\nAgreement; (ii) you fully understand its contents; (iii) you have been advised to consult an attorney before signing it; and (iv) you enter\ninto this Agreement knowingly, voluntarily and after any consultations with your attorney or other advisor, as you deem appropriate.\n20. Review Period, Execution and Revocation. In order to be eligible for the payment described in Section 1 above, you must sign and\nreturn the original of this Agreement by 5:00 p.m., on March13, 2015 (the “Due Date”) to Michael A. Carter at the offices of the Company.\nYou acknowledge that you will have had at least 21 calendar days from your receipt of this Agreement on February 20, 2015 to consider\nwhether to accept its terms. Any changes to this Agreement, whether material or immaterial, shall not restart the running of the 21-day period.\nAfter signing the Agreement and properly returning it to the Company, you shall have seven calendar days to consider whether to revoke it\n(the “Revocation Period”). If you choose to revoke this Agreement, you must do so by serving written notice to Pier 1 Services Company by\nfacsimile at 817-\n334-0191, Attn: Legal Department, before the expiration of the Revocation Period and obtain written confirmation of delivery. You acknowledge\nthat this Agreement shall become effective, fully enforceable and irrevocable upon the expiration of the seven-day period following your signing\nof this Agreement. This Agreement shall be null and void if: (i) you fail to execute and return the original of this Agreement on or prior to the\nDue Date; or (ii) you sign it within 21 days, but revoke your execution within seven calendar days after signing it.\nIN WITNESS WHEREOF, this Confidential Retirement Agreement and General Release has been executed\nby each of the listed parties below.\nEMPLOYEE:\nPIER 1 SERVICES COMPANY,\na Delaware statutory trust\nPrinted Name: Charles H. Turner\nBy:\nPier 1 Holdings, Inc., a Delaware corporation,\nIts managing trustee\nSignature:\n/s/ Charles H. Turner\nBy:\n/s/ Michael A. Carter\nDate:\nMarch 1, 2015\nMichael A. Carter\nAddress:\n4612 Lakeside Drive\nSR VP Compliance and General Counsel\nColleyville, TX\nPIER 1 IMPORTS, INC.\nBy:\n/s/ Alexander W. Smith\nAlexander W. Smith, President and CEO\nDate:\nMarch 16, 2015\nAddress: 100 Pier 1 Place, Fort Worth TX 76102\nAttn:\nMichael A. Carter, General Counsel
2accf8fc15a4dbb428cf704ce263bf8e.pdf	effective_date jurisdiction party term	EX-10.43 5 d269066dex1043.htm 2012 CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY\nINFORMATION AGREEMENT\nExhibit 10.43\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the “Agreement”), is made as of the day of\n,\n2012, between Evercore Partners Services East L.L .C. (the “Company”), and the employee signatory hereto (the “Employee”).\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, “Evercore”);\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore; and\nWHEREAS, Employee agrees to be subject to the restrictive covenants as set forth in this Agreement.\nNOW THEREFORE, for good and valuable consideration the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee’s employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee’s\nemployment with Evercore or at any time thereafter during the course of Employee’s employment with Evercore—including without limitation trade\nsecrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employees’ own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals—concerning the past, current or future business activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party, Employee knows or\nreasonably should have known that the third party provided it to Evercore on a confidential basis) (“Confidential Information”) without the prior\nwritten authorization of the Chief Executive Officer of Evercore Partners Inc.; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee’s duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof.\n(b) “Confidential Information” shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee’s breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made available to Employee by a third party (unless Employee knows or\nreasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court, arbitrator,\nmediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to disclose or\nmake accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation, shall give\nprompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate with any\nattempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee’s immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee’s employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee’s possession or control (including any of the foregoing stored or located in Employee’s office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee’s possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to retain (and not destroy) (x) information showing Employee’s compensation or relating to reimbursement of expenses that Employee\nreasonably believes is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with,\nEvercore addressing Employee’s compensation or Employee’s employment or termination thereof.\n-2-\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Without limiting any duty or obligation otherwise applicable to Employee, Employee agrees as follows:\n(i) Non-Competition. During Employee’s service with Evercore, Employee will not, directly or indirectly:\n(A) engage in any business that competes with the business of Evercore (including, without limitation, any businesses that\nEvercore is then actively considering conducting, so long as Employee knows or reasonably should know of such plan(s)) in any geographical area\nthat is within 100 miles of any geographical area where Evercore provides its products or services (a “Competitive Business”);\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business; or\n(C) subject to the terms of Evercore’s employee investments policy applicable to Employee from time to time, acquire a financial\ninterest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder,\nofficer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\ninvesting, as a passive investor, in any publicly held company provided that Employee’s beneficial ownership of any class of such publicly held\ncompany’s securities does not exceed two percent (2%) of the outstanding securities of such class.\n(ii) Non-Solicitation of Clients. During Employee’s service with Evercore and the six-month period immediately following cessation of\nthat service for any reason, Employee will not, whether on Employee’s own behalf or on behalf of or in conjunction with any Person, directly or\nindirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an investment in, or any opportunity to act as a\nfinancial, restructuring or asset management advisor in connection with any transaction involving, any client, prospective client, investor, portfolio\ncompany or prospective portfolio company, or member of management of any portfolio company or prospective portfolio company of Evercore\n(collectively, the “Clients”):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding the Relevant Date;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Relevant Date; or\n(C) with respect to which Employee had direct or indirect responsibility during the two-year period immediately preceding the\nRelevant Date.\n-3-\n(iii) Non-Interference with Business Relationships. During Employee’s service with Evercore and the six-month period immediately\nfollowing cessation of that service for any reason, Employee will not interfere with, or attempt to interfere with, business relationships (whether\nformed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client, customers, suppliers, partners, of\nEvercore, on the other hand.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During Employee’s service with Evercore and the 12-month period\nimmediately following cessation of that service for any reason, Employee will not, whether on Employee’s own behalf or on behalf of or in\nconjunction with any Person, directly or indirectly (other than in the ordinary course of Employee’s employment with Evercore and on Evercore’s\nbehalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee’s termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within six months prior to or after, the termination of Employee’s employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n(b) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Agreement to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n(c) For purposes of this Agreement, “Relevant Date” shall mean, when applied during the term of Employee’s service with Evercore, the date\nof such application and, when applied following Employee’s cessation of service with Evercore, the effective date of that cessation of service.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, during\nEmployee’s employment prior hereto, that are relevant to or implicated by such employment (“Prior Works”), to the extent\n-4-\nEmployee has retained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free,\nworldwide, assignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property,\ncopyright, trademark, trade secret, unfair competition and related laws) therein to the extent of Employee’s rights in such Prior Work for all purposes\nin connection with Evercore’s current and future business.\n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee’s employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources (“Company Works”),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore’s sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore’s expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore’s rights in the Prior Works and Company Works as set forth in this Section 3. If\nEvercore is unable for any other reason to secure Employee’s signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in Employee’s\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n-5-\n(f) The provisions of Section 3 shall survive the termination of Employee’s employment for any reason.\n4. Notice of Termination.\n(a) Employee agrees to provide Evercore with not less than 90 days’ advance written notice of any resignation of his or her employment;\nprovided, however, that Evercore may in its discretion waive all or part of that notice period.\n(b) During the notice period described above in Section 4(a), Evercore may in its discretion require Employee to cease performing some or all\nof his or her duties and to refrain from entering its places of business, provided that during such notice period, Employee will remain an Evercore\nemployee, will cooperate in the transition of his or her duties to other Evercore personnel and will remain bound by all his or her duties and\nobligations to Evercore, including (without limitation) the obligations stated in this Agreement and the duties and obligations applicable to Employee\nunder common law.\n(c) If Employee fails, in whole or in part, to provide the advance notice of resignation required by this Section 4 and Evercore does not waive\nthat notice period or any unexpired portion thereof (the “Remaining Period”), Evercore will continue to pay Employee’s base salary for the\nRemaining Period and the restrictions contained in Section 2(a) above will all be extended by a number of days equal to the duration of the\nRemaining Period. Any base salary continuation otherwise payable under this paragraph will be offset by the amount of any severance or similar\npost-termination compensation paid by Evercore to Employee.\n5. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee’s service to Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such Confidential Information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges and\nagrees that Evercore’s remedies at law for a breach or threatened breach of any of the provisions of Sections 1, 2, 3 and 4 would be inadequate and,\nin recognition of this fact, Employee agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, Evercore,\nwithout posting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by\nEvercore (other than any vested benefits under any retirement plan or as may be required by applicable law to be provided), enforce any forfeiture\nprovision applicable to outstanding equity awards, as provided in the applicable award agreements, and seek equitable relief in the form of specific\nperformance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available; provided,\nhowever, that if it is subsequently determined in a final and binding arbitration or litigation that Employee did not breach any such provision,\nEvercore will promptly pay any payments or provide any benefits which Evercore may have ceased to pay when originally due and payable, plus an\nadditional amount equal to interest (calculated based on the applicable federal rate for the month in which such final\n-6-\ndetermination is made) accrued on the applicable payment or the amount of the benefit, as applicable, beginning from the date such payment or\nbenefit was originally due and payable through the day preceding the date on which such payment or benefit is ultimately paid hereunder.\n6. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. Except as otherwise provided herein, this Agreement contains the entire understanding of the parties with\nrespect to the subject matter hereof and supersedes any other agreement with respect to the subject matter hereof (including any prior version of this\nConfidentiality, Non-Solicitation and Proprietary Information Agreement). Except as otherwise provided herein, there are no restrictions,\nagreements, promises, warranties, covenants or undertakings between the parties with respect to the subject matter herein other than those expressly\nset forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto. The foregoing\nnotwithstanding, this Agreement will not supersede changes to the duration of any restrictive covenant and related enforcement provisions included\nin any equity incentive award issued by the Company, even if issued on or prior to the date hereof.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n-7-\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[Signature Page Follows]\n-8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS SERVICES EAST L.L.C.\nBy:\nName:\nTitle:\nEMPLOYEE\n(Signature)\n(Print Name)\n-9-	EX-10.43 5 d269066dex1043.htm 2012 CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY\nINFORMATION AGREEMENT\nExhibit 10.43\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the “Agreement”), is made as of the  day of s\n2012, between Evercore Partners Services East L.L.C. (the “Company”), and the employee signatory hereto (the “Employee”).\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, “Evercore”);\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore; and\nWHEREAS, Employee agrees to be subject to the restrictive covenants as set forth in this Agreement.\nNOW THEREFORE, for good and valuable consideration the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee’s employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee’s\nemployment with Evercore or at any time thereafter during the course of Employee’s employment with Evercore—including without limitation trade\nsecrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employees’ own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals—concerning the past, current or future business activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party, Employee knows or\nreasonably should have known that the third party provided it to Evercore on a confidential basis) (“Confidential Information”) without the prior\nwritten authorization of the Chief Executive Officer of Evercore Partners Inc.; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee’s duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof.\n(b) “Confidential Information” shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee’s breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made available to Employee by a third party (unless Employee knows or\nreasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court, arbitrator,\nmediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to disclose or\nmake accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation, shall give\nprompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate with any\nattempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee’s immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee’s employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee’s possession or control (including any of the foregoing stored or located in Employee’s office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee’s possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to retain (and not destroy) (x) information showing Employee’s compensation or relating to reimbursement of expenses that Employee\nreasonably believes is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with,\nEvercore addressing Employee’s compensation or Employee’s employment or termination thereof.\n-\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Without limiting any duty or obligation otherwise applicable to Employee, Employee agrees as follows:\n(i) Non-Competition. During Employee’s service with Evercore, Employee will not, directly or indirectly:\n \n(A) engage in any business that competes with the business of Evercore (including, without limitation, any businesses that\nEvercore is then actively considering conducting, so long as Employee knows or reasonably should know of such plan(s)) in any geographical area\nthat is within 100 miles of any geographical area where Evercore provides its products or services (a “Competitive Business™);\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business; or\n(C) subject to the terms of Evercore’s employee investments policy applicable to Employee from time to time, acquire a financial\ninterest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder,\nofficer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\ninvesting, as a passive investor, in any publicly held company provided that Employee’s beneficial ownership of any class of such publicly held\ncompany’s securities does not exceed two percent (2%) of the outstanding securities of such class.\n(ii) Non-Solicitation of Clients. During Employee’s service with Evercore and the six-month period immediately following cessation of\nthat service for any reason, Employee will not, whether on Employee’s own behalf or on behalf of or in conjunction with any Person, directly or\nindirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an investment in, or any opportunity to act as a\nfinancial, restructuring or asset management advisor in connection with any transaction involving, any client, prospective client, investor, portfolio\ncompany or prospective portfolio company, or member of management of any portfolio company or prospective portfolio company of Evercore\n(collectively, the “Clients™):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding the Relevant Date;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Relevant Date; or\n(C) with respect to which Employee had direct or indirect responsibility during the two-year period immediately preceding the\nRelevant Date.\n_3-\n(iii) Non-Interference with Business Relationships. During Employee’s service with Evercore and the six-month period immediately\nfollowing cessation of that service for any reason, Employee will not interfere with, or attempt to interfere with, business relationships (whether\nformed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client, customers, suppliers, partners, of\nEvercore, on the other hand.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During Employee’s service with Evercore and the 12-month period\nimmediately following cessation of that service for any reason, Employee will not, whether on Employee’s own behalf or on behalf of or in\nconjunction with any Person, directly or indirectly (other than in the ordinary course of Employee’s employment with Evercore and on Evercore’s\nbehalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee’s termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within six months prior to or after, the termination of Employee’s employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n(b) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Agreement to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n(c) For purposes of this Agreement, “Relevant Date” shall mean, when applied during the term of Employee’s service with Evercore, the date\nof such application and, when applied following Employee’s cessation of service with Evercore, the effective date of that cessation of service.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, during\nEmployee’s employment prior hereto, that are relevant to or implicated by such employment (“Prior Works™), to the extent\n4-\nEmployee has retained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free,\nworldwide, assignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property,\ncopyright, trademark, trade secret, unfair competition and related laws) therein to the extent of Employee’s rights in such Prior Work for all purposes\nin connection with Evercore’s current and future business.\n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee’s employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources (“Company Works”),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore’s sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore’s expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore’s rights in the Prior Works and Company Works as set forth in this Section 3. If\nEvercore is unable for any other reason to secure Employee’s signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in Employee’s\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n_5-\n(f) The provisions of Section 3 shall survive the termination of Employee’s employment for any reason.\n4. Notice of Termination.\n(a) Employee agrees to provide Evercore with not less than 90 days’ advance written notice of any resignation of his or her employment;\nprovided, however, that Evercore may in its discretion waive all or part of that notice period.\n(b) During the notice period described above in Section 4(a), Evercore may in its discretion require Employee to cease performing some or all\nof his or her duties and to refrain from entering its places of business, provided that during such notice period, Employee will remain an Evercore\nemployee, will cooperate in the transition of his or her duties to other Evercore personnel and will remain bound by all his or her duties and\nobligations to Evercore, including (without limitation) the obligations stated in this Agreement and the duties and obligations applicable to Employee\nunder common law.\n(c) If Employee fails, in whole or in part, to provide the advance notice of resignation required by this Section 4 and Evercore does not waive\nthat notice period or any unexpired portion thereof (the “Remaining Period”), Evercore will continue to pay Employee’s base salary for the\nRemaining Period and the restrictions contained in Section 2(a) above will all be extended by a number of days equal to the duration of the\nRemaining Period. Any base salary continuation otherwise payable under this paragraph will be offset by the amount of any severance or similar\npost-termination compensation paid by Evercore to Employee.\n5. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee’s service to Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such Confidential Information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges and\nagrees that Evercore’s remedies at law for a breach or threatened breach of any of the provisions of Sections 1, 2, 3 and 4 would be inadequate and,\nin recognition of this fact, Employee agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, Evercore,\nwithout posting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by\nEvercore (other than any vested benefits under any retirement plan or as may be required by applicable law to be provided), enforce any forfeiture\nprovision applicable to outstanding equity awards, as provided in the applicable award agreements, and seek equitable relief in the form of specific\nperformance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available; provided,\nhowever, that if it is subsequently determined in a final and binding arbitration or litigation that Employee did not breach any such provision,\nEvercore will promptly pay any payments or provide any benefits which Evercore may have ceased to pay when originally due and payable, plus an\nadditional amount equal to interest (calculated based on the applicable federal rate for the month in which such final\n-6-\ndetermination is made) accrued on the applicable payment or the amount of the benefit, as applicable, beginning from the date such payment or\nbenefit was originally due and payable through the day preceding the date on which such payment or benefit is ultimately paid hereunder.\n6. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. Except as otherwise provided herein, this Agreement contains the entire understanding of the parties with\nrespect to the subject matter hereof and supersedes any other agreement with respect to the subject matter hereof (including any prior version of this\nConfidentiality, Non-Solicitation and Proprietary Information Agreement). Except as otherwise provided herein, there are no restrictions,\nagreements, promises, warranties, covenants or undertakings between the parties with respect to the subject matter herein other than those expressly\nset forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto. The foregoing\nnotwithstanding, this Agreement will not supersede changes to the duration of any restrictive covenant and related enforcement provisions included\nin any equity incentive award issued by the Company, even if issued on or prior to the date hereof.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n_7-\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[Signature Page Follows]\n_8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above. EVERCORE PARTNERS SERVICES EAST L.L.C.\nBy:\nName:\nTitle:\nEMPLOYEE\n(Signature)\n(Print Name)	EX-10.43 5 d269066dex1043.htr 2012 CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY\nINFORMATION AGREEMENT\nExhibit 10.43\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the "Agreement"), is made as of the\nday of\n2012, between Evercore Partners Services East L.L.C. (the "Company"), and the employee signatory hereto (the "Employee").\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, "Evercore");\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore; and\nWHEREAS, Employee agrees to be subject to the restrictive covenants as set forth in this Agreement.\nNOW THEREFORE, for good and valuable consideration the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee's employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever ("Person"); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee's\nemployment with Evercore or at any time thereafter during the course of Employee's employment with Evercore-including without limitation trade\nsecrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty,\ninformation concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employees' own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals-concerning the past, current or future business activities and operations of Evercore and/or any third party that\nhas\ndisclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party, Employee knows or\nreasonably should have known that the third party provided it to Evercore on a confidential basis) ("Confidential Information") without the prior\nwritten authorization of the Chief Executive Officer of Evercore Partners Inc.; provided, however, that in any event Employee shall be permitted\nto\ndisclose any Confidential Information reasonably necessary (i) to perform Employee's duties while employed with Evercore or\n(ii)\nin\nconnection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date\nof\nthis Agreement in connection with any action or proceeding in respect thereof.\n(b) "Confidential Information" shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee's breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows\nor\nreasonably should have known of such breach by such third parties; (y) made available to Employee by a third party (unless Employee knows\nor\nreasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court, arbitrator,\nmediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to disclose or\nmake accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation shall give\nprompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate with any\nattempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee's immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee's employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore's option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee's possession or control (including any of the foregoing stored or located in Employee's office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee's possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall\nbe\nentitled to retain (and not destroy) (x) information showing Employee's compensation or relating to reimbursement of expenses that Employee\nreasonably believes is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with,\nEvercore addressing Employee's compensation or Employee's employment or termination thereof.\n-2-\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Without limiting any duty or obligation otherwise applicable to Employee, Employee agrees as follows:\n(i) Non-Competition. During Employee's service with Evercore, Employee will not, directly or indirectly:\n(A) engage in any business that competes with the business of Evercore (including, without limitation, any businesses\nthat\nEvercore is then actively considering conducting, so long as Employee knows or reasonably should know of such plan(s)) in any geographical area\nthat is within 100 miles of any geographical area where Evercore provides its products or services (a "Competitive Business");\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business; or\n(C) subject to the terms of Evercore's employee investments policy applicable to Employee from time to time, acquire a financial\ninterest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder,\nofficer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\ninvesting, as a passive investor, in any publicly held company provided that Employee's beneficial ownership of any class of such publicly held\ncompany's securities does not exceed two percent (2%) of the outstanding securities of such class.\n(ii) Non-Solicitation of Clients. During Employee's service with Evercore and the six-month period immediately following cessation of\nthat service for any reason, Employee will not, whether on Employee's own behalf or on behalf of or in conjunction with any Person, directly or\nindirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an investment in, or any opportunity to act as a\nfinancial, restructuring or asset management advisor in connection with any transaction involving, any client, prospective client, investor, portfolio\ncompany or prospective portfolio company, or member of management of any portfolio company or prospective portfolio company of Evercore\n(collectively, the "Clients"):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding the Relevant Date;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Relevant Date; or\n(C) with respect to which Employee had direct or indirect responsibility during the two-year period immediately preceding\nthe\nRelevant Date.\n-3-\n(iii) Non-Interference with Business Relationships. During Employee's service with Evercore and the six-month period immediately\nfollowing cessation of that service for any reason, Employee will not interfere with, or attempt to interfere with, business relationships (whether\nformed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client, customers, suppliers, partners, of\nEvercore, on the other hand.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During Employee's service with Evercore and the 12-month period\nimmediately following cessation of that service for any reason, Employee will not, whether on Employee's own behalf or on behalf of or in\nconjunction with any Person, directly or indirectly (other than in the ordinary course of Employee's employment with Evercore and on Evercore's\nbehalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee's termination of employment\nwith\nEvercore or who left the employment of Evercore coincident with, or within six months prior to or after, the termination of Employee's employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n(b) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Agreement to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n(c) For purposes of this Agreement, "Relevant Date" shall mean, when applied during the term of Employee's service with Evercore, the date\nof such application and, when applied following Employee's cessation of service with Evercore, the effective date of that cessation of service.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) ("Works"), either alone or with third parties, during\nEmployee's employment prior hereto, that are relevant to or implicated by such employment ("Prior Works"), to the extent\n-4-\nEmployee has retained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free,\nworldwide, assignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property,\ncopyright, trademark, trade secret, unfair competition and related laws) therein to the extent of Employee's rights in such Prior Work for all purposes\nin connection with Evercore's current and future business.\n(b)\nIf Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties,\nat\nany\ntime\nduring\nEmployee's employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources ("Company Works"),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore's sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor\nmedia requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore's expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore's rights in the Prior Works and Company Works as set forth in this Section 3.\nIf\nEvercore is unable for any other reason to secure Employee's signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee's agent and attorney in fact, to act for and in Employee's\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known\nis\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n-5-\n(f) The provisions of Section 3 shall survive the termination of Employee's employment for any reason.\n4. Notice of Termination.\n(a) Employee agrees to provide Evercore with not less than 90 days' advance written notice of any resignation of his or her employment;\nprovided, however, that Evercore may in its discretion waive all or part of that notice period.\n(b) During the notice period described above in Section 4(a), Evercore may in its discretion require Employee to cease performing some or all\nof his or her duties and to refrain from entering its places of business, provided that during such notice period, Employee will remain an Evercore\nemployee, will cooperate in the transition of his or her duties to other Evercore personnel and will remain bound by all his or her duties and\nobligations to Evercore, including (without limitation) the obligations stated in this Agreement and the duties and obligations applicable to Employee\nunder common law.\n(c) If Employee fails, in whole or in part, to provide the advance notice of resignation required by this Section 4 and Evercore does not waive\nthat notice period or any unexpired portion thereof (the "Remaining Period"), Evercore will continue to pay Employee's base salary for the\nRemaining Period and the restrictions contained in Section 2(a) above will all be extended by a number of days equal to the duration of the\nRemaining Period. Any base salary continuation otherwise payable under this paragraph will be offset by the amount of any severance or similar\npost-termination compensation paid by Evercore to Employee.\n5. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee's service to Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such Confidential Information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges\nand\nagrees that Evercore's remedies at law for a breach or threatened breach of any of the provisions of Sections 1, 2, 3 and 4 would be inadequate and,\nin recognition of this fact, Employee agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, Evercore,\nwithout posting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided\nby\nEvercore (other than any vested benefits under any retirement plan or as may be required by applicable law to be provided), enforce any forfeiture\nprovision applicable to outstanding equity awards, as provided in the applicable award agreements, and seek equitable relief in the form of specific\nperformance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available; provided,\nhowever, that if it is subsequently determined in a final and binding arbitration or litigation that Employee did not breach any such provision,\nEvercore will promptly pay any payments or provide any benefits which Evercore may have ceased to pay when originally due and payable, plus an\nadditional amount equal to interest (calculated based on the applicable federal rate for the month in which such final\n-6-\ndetermination is made) accrued on the applicable payment or the amount of the benefit, as applicable, beginning from the date such payment or\nbenefit was originally due and payable through the day preceding the date on which such payment or benefit is ultimately paid hereunder.\n6. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments Except as otherwise provided herein, this Agreement contains the entire understanding of the parties with\nrespect to the subject matter hereof and supersedes any other agreement with respect to the subject matter hereof (including any prior version of this\nConfidentiality, Non-Solicitation and Proprietary Information Agreement). Except as otherwise provided herein, there are no restrictions,\nagreements, promises, warranties, covenants or undertakings between the parties with respect to the subject matter herein other than those expressly\nset forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto. The foregoing\nnotwithstanding, this Agreement will not supersede changes to the duration of any restrictive covenant and related enforcement provisions included\nin any equity incentive award issued by the Company, even if issued on or prior to the date hereof.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered\na\nwaiver of such party's rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability.. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n(f)\nSuccessors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n-7-\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[Signature Page Follows]\n-8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS SERVICES EAST L.L.C.\nBy:\nName:\nTitle:\nEMPLOYEE\n(Signature)\n(Print Name)\n-9-	EX-10.43 5 d269066dex1043.htm 2012 CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY\nINFORMATION AGREEMENT\nExhibit 10.43\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the “Agreement”), is made as of the day of\n,\n2012, between Evercore Partners Services East L.L .C. (the “Company”), and the employee signatory hereto (the “Employee”).\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, “Evercore”);\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore; and\nWHEREAS, Employee agrees to be subject to the restrictive covenants as set forth in this Agreement.\nNOW THEREFORE, for good and valuable consideration the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee’s employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee’s\nemployment with Evercore or at any time thereafter during the course of Employee’s employment with Evercore—including without limitation trade\nsecrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employees’ own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals—concerning the past, current or future business activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party, Employee knows or\nreasonably should have known that the third party provided it to Evercore on a confidential basis) (“Confidential Information”) without the prior\nwritten authorization of the Chief Executive Officer of Evercore Partners Inc.; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee’s duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof.\n(b) “Confidential Information” shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee’s breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made available to Employee by a third party (unless Employee knows or\nreasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court, arbitrator,\nmediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to disclose or\nmake accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation, shall give\nprompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate with any\nattempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee’s immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee’s employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee’s possession or control (including any of the foregoing stored or located in Employee’s office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee’s possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to retain (and not destroy) (x) information showing Employee’s compensation or relating to reimbursement of expenses that Employee\nreasonably believes is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with,\nEvercore addressing Employee’s compensation or Employee’s employment or termination thereof.\n-2-\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Without limiting any duty or obligation otherwise applicable to Employee, Employee agrees as follows:\n(i) Non-Competition. During Employee’s service with Evercore, Employee will not, directly or indirectly:\n(A) engage in any business that competes with the business of Evercore (including, without limitation, any businesses that\nEvercore is then actively considering conducting, so long as Employee knows or reasonably should know of such plan(s)) in any geographical area\nthat is within 100 miles of any geographical area where Evercore provides its products or services (a “Competitive Business”);\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business; or\n(C) subject to the terms of Evercore’s employee investments policy applicable to Employee from time to time, acquire a financial\ninterest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder,\nofficer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\ninvesting, as a passive investor, in any publicly held company provided that Employee’s beneficial ownership of any class of such publicly held\ncompany’s securities does not exceed two percent (2%) of the outstanding securities of such class.\n(ii) Non-Solicitation of Clients. During Employee’s service with Evercore and the six-month period immediately following cessation of\nthat service for any reason, Employee will not, whether on Employee’s own behalf or on behalf of or in conjunction with any Person, directly or\nindirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an investment in, or any opportunity to act as a\nfinancial, restructuring or asset management advisor in connection with any transaction involving, any client, prospective client, investor, portfolio\ncompany or prospective portfolio company, or member of management of any portfolio company or prospective portfolio company of Evercore\n(collectively, the “Clients”):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding the Relevant Date;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Relevant Date; or\n(C) with respect to which Employee had direct or indirect responsibility during the two-year period immediately preceding the\nRelevant Date.\n-3-\n(iii) Non-Interference with Business Relationships. During Employee’s service with Evercore and the six-month period immediately\nfollowing cessation of that service for any reason, Employee will not interfere with, or attempt to interfere with, business relationships (whether\nformed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client, customers, suppliers, partners, of\nEvercore, on the other hand.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During Employee’s service with Evercore and the 12-month period\nimmediately following cessation of that service for any reason, Employee will not, whether on Employee’s own behalf or on behalf of or in\nconjunction with any Person, directly or indirectly (other than in the ordinary course of Employee’s employment with Evercore and on Evercore’s\nbehalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee’s termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within six months prior to or after, the termination of Employee’s employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n(b) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Agreement to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n(c) For purposes of this Agreement, “Relevant Date” shall mean, when applied during the term of Employee’s service with Evercore, the date\nof such application and, when applied following Employee’s cessation of service with Evercore, the effective date of that cessation of service.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, during\nEmployee’s employment prior hereto, that are relevant to or implicated by such employment (“Prior Works”), to the extent\n-4-\nEmployee has retained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free,\nworldwide, assignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property,\ncopyright, trademark, trade secret, unfair competition and related laws) therein to the extent of Employee’s rights in such Prior Work for all purposes\nin connection with Evercore’s current and future business.\n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee’s employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources (“Company Works”),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore’s sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore’s expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore’s rights in the Prior Works and Company Works as set forth in this Section 3. If\nEvercore is unable for any other reason to secure Employee’s signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in Employee’s\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n-5-\n(f) The provisions of Section 3 shall survive the termination of Employee’s employment for any reason.\n4. Notice of Termination.\n(a) Employee agrees to provide Evercore with not less than 90 days’ advance written notice of any resignation of his or her employment;\nprovided, however, that Evercore may in its discretion waive all or part of that notice period.\n(b) During the notice period described above in Section 4(a), Evercore may in its discretion require Employee to cease performing some or all\nof his or her duties and to refrain from entering its places of business, provided that during such notice period, Employee will remain an Evercore\nemployee, will cooperate in the transition of his or her duties to other Evercore personnel and will remain bound by all his or her duties and\nobligations to Evercore, including (without limitation) the obligations stated in this Agreement and the duties and obligations applicable to Employee\nunder common law.\n(c) If Employee fails, in whole or in part, to provide the advance notice of resignation required by this Section 4 and Evercore does not waive\nthat notice period or any unexpired portion thereof (the “Remaining Period”), Evercore will continue to pay Employee’s base salary for the\nRemaining Period and the restrictions contained in Section 2(a) above will all be extended by a number of days equal to the duration of the\nRemaining Period. Any base salary continuation otherwise payable under this paragraph will be offset by the amount of any severance or similar\npost-termination compensation paid by Evercore to Employee.\n5. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee’s service to Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such Confidential Information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges and\nagrees that Evercore’s remedies at law for a breach or threatened breach of any of the provisions of Sections 1, 2, 3 and 4 would be inadequate and,\nin recognition of this fact, Employee agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, Evercore,\nwithout posting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by\nEvercore (other than any vested benefits under any retirement plan or as may be required by applicable law to be provided), enforce any forfeiture\nprovision applicable to outstanding equity awards, as provided in the applicable award agreements, and seek equitable relief in the form of specific\nperformance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available; provided,\nhowever, that if it is subsequently determined in a final and binding arbitration or litigation that Employee did not breach any such provision,\nEvercore will promptly pay any payments or provide any benefits which Evercore may have ceased to pay when originally due and payable, plus an\nadditional amount equal to interest (calculated based on the applicable federal rate for the month in which such final\n-6-\ndetermination is made) accrued on the applicable payment or the amount of the benefit, as applicable, beginning from the date such payment or\nbenefit was originally due and payable through the day preceding the date on which such payment or benefit is ultimately paid hereunder.\n6. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. Except as otherwise provided herein, this Agreement contains the entire understanding of the parties with\nrespect to the subject matter hereof and supersedes any other agreement with respect to the subject matter hereof (including any prior version of this\nConfidentiality, Non-Solicitation and Proprietary Information Agreement). Except as otherwise provided herein, there are no restrictions,\nagreements, promises, warranties, covenants or undertakings between the parties with respect to the subject matter herein other than those expressly\nset forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto. The foregoing\nnotwithstanding, this Agreement will not supersede changes to the duration of any restrictive covenant and related enforcement provisions included\nin any equity incentive award issued by the Company, even if issued on or prior to the date hereof.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n-7-\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[Signature Page Follows]\n-8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS SERVICES EAST L.L.C.\nBy:\nName:\nTitle:\nEMPLOYEE\n(Signature)\n(Print Name)\n-9-
2b6c4aec04d54e5209ce1a38d854f9a5.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 14 d377383dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIAL\nApril 11, 2012\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18 Floor\nNew York, NY 10022\nAttention:\nGregory A. Belinfanti\nLadies and Gentlemen:\nOne Equity Partners IV, L.P. (“you” or “your”) has requested certain non-public, proprietary information from MModal Inc. (formerly known\nas MedQuist Holdings, Inc.) (together with its wholly-owned subsidiaries, the “Company”) in connection with your consideration of a possible\nnegotiated transaction between you and the Company (a “Transaction”). While this letter agreement (this “Agreement”) does not require the\nCompany to furnish such information, or you to receive it, this Agreement shall govern such information as may be provided or otherwise made\navailable by the Company.\n1. Confidentiality.\n(a) You agree to keep all Evaluation Material (as defined below) confidential and to use the Evaluation Material only for the purpose of\nevaluating or consummating a possible Transaction; provided, however, that (i) Evaluation Material may be disclosed to those of your officers,\ndirectors, employees, accountants, counsel, investment bankers, consultants, financial advisors, agents, individuals at affiliates who receive\nEvaluation Material from you and, solely with the prior written consent of the Company (which may be withheld at the Company’s sole discretion),\ndebt financing sources disclosed to the Company (such persons referred to in this clause (i) who receive Evaluation Material in their capacity as such\nbeing generally referred to herein as “Representatives”), in each case who need to know such information for the purpose of assisting you in your\nevaluation or consummation of a Transaction so long as you use commercially reasonable efforts to cause your Representatives to treat the\nEvaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation Material may be made to\nwhich the Company consents in writing and (iii) any disclosure of the Evaluation Material may be made to the extent expressly permitted by\nSection 1(d). You will be responsible for any breach of the terms of this Agreement by any of your Representatives other than any of your\nRepresentatives who enter into a separate confidentiality agreement with the Company on or after the date hereof. For purposes of this Agreement,\n“Evaluation Material” means non-public information regarding the Company or third parties that the Company or its Representatives furnish or\notherwise make available to you or your Representatives, whether on or after the date of this Agreement, and whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies, interpretations and any other oral, written or electronic\nmaterials prepared by or for you or your Representatives to the extent that they contain, reflect or are based upon, in whole or in\nth\npart, such information. Notwithstanding the foregoing, the term “Evaluation Material” does not include information that (A) was or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives provided such other source is not known by\nyou or your Representatives to be bound by a confidentiality obligation to the Company or (B) was or becomes generally available to the public\n(other than as a result of a violation by you or your Representatives of this Agreement) or (C) was independently developed or created by you or\nyour Representatives without use of or reference to any Evaluation Material provided by the Company or violation of your obligations hereunder.\nNotwithstanding anything to the contrary in this Agreement, none of the provisions of this Agreement shall apply to any of your affiliates who do\nnot receive Evaluation Material; provided, that should Evaluation Material be made available by you or any of your Representatives to (i) any\ndirector, officer or employee of any of your affiliated portfolio companies, you will arrange for such portfolio companies to enter into a separate\nagreement with terms substantially similar hereto with the Company, (ii) any of OEP Parent LLC’s (“OEP Parent”) controlled affiliated investment\nentities, such entities shall be bound by this Agreement in accordance with its terms or (iii) any individual at your affiliates (other than your affiliated\nportfolio companies or any of OEP Parent’s controlled affiliated investment entities), the individuals at such affiliates who have received Evaluation\nMaterial from you shall be bound by this Agreement in accordance with its terms.\n(b) You agree that neither you nor any of your Representatives will, without the prior written consent of the Company, directly or indirectly,\ndisclose to any other person (excluding your Representatives) (i) the fact that discussions or negotiations may take place, are taking place or have\ntaken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status thereof, (ii) the existence or the\nterms of this Agreement or (iii) that you or your Representatives have received or produced any Evaluation Material; provided, however, that you or\nyour Representatives may make such disclosure to the extent expressly permitted by Section 1(d).\n(c) It is understood that all requests by you and your Representatives for information, facility tours or management meetings and discussions or\nquestions regarding procedures in connection with your evaluation of a Transaction, will be submitted or directed to Alicia Ciccone\n(alicia.ciccone@macquarie.com, +1(212) 231-1811) at Macquarie Capital (USA) Inc. (“Macquarie”). You also agree that, without the prior express\nconsent of the Company, you will not (and you will use commercially reasonable efforts to cause your Representatives not to) initiate or maintain\ncontact (except for those contacts made in the ordinary course of business unrelated to the possible Transaction) with any person or entity that, to\nyour knowledge, is (i) an officer, director, employee, consultant or agent of the Company regarding a Transaction, participation in a Transaction or\nthe Company’s business, operations, prospects or finances or (ii) a supplier, distributor, broker or customer of the Company regarding the Company\nor the business operations, assets, prospects or finances of the Company. It is understood that Macquarie will arrange for all contacts for due\ndiligence purposes in connection with your evaluation of a Transaction.\n(d) In the event that you or any of your Representatives are requested or required to disclose any Evaluation Material in connection with any\nlaw, rule or regulation, or by any judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents,\nsubpoena, civil investigation demand or similar process), you will\n2\nprovide the Company with prompt notice, to the extent legally permissible, of such request or requirement(s). You also agree, to the extent legally\npermissible and reasonably practicable, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you intend\nto disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company, at the Company’s sole expense, to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above. If and to the extent, in the absence of a protective order or the receipt of a waiver from the Company ,\nyou or your Representatives are legally required as advised by counsel in writing to disclose Evaluation Material to any tribunal, you will use\nreasonable efforts to obtain assurances that confidential treatment will be accorded to any Evaluation Material that you are so required to disclose\nand thereafter you or your Representatives may disclose such information without liability hereunder. Notwithstanding the foregoing, no such notice\nshall be required in respect of disclosures of the Evaluation Material to financial regulatory authorities having jurisdiction over you or your\nRepresentatives, unless the requests by such regulatory authorities are specifically targeted at the Evaluation Material, the Company or the\nTransaction; provided, that you or your Representatives shall advise such financial regulatory authority of the confidential nature of such Evaluation\nMaterial.\n(e) Upon the written request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at\nyour option, destroy, all copies of the Evaluation Material, without retaining any copy thereof, including, to the extent practicable, expunging all\nsuch Evaluation Material from any computer, word processor or other device containing such information. If requested by the Company, an\nappropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed. Notwithstanding the foregoing, you\nand your Representatives may retain Evaluation Material (i) to the extent it is “backed-up” on your or their (as the case may be) electronic\ninformation management and communications systems or servers, and is not available to an end user and (ii) in accordance with applicable law, rule,\nregulation, professional standards and your and your Representatives’ respective bona fide document retention policies. Any and all duties and\nobligations existing under this Agreement shall remain in full force and effect until this Agreement is terminated in accordance with Section 9(a),\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section 1(e). You also agree to notify us promptly upon your\ndetermination to cease to consider a Transaction.\n(f) To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or government investigations, you understand and agree that the parties\nhave a commonality of legal interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege or other applicable privilege. All Evaluation Material furnished by the Company or its Representatives that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the common legal interest and joint defense doctrine, and the parties agree to take commercially reasonable\nefforts to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n3\n2. No Other Discussions or Arrangements. You represent that neither you nor any of your Representatives acting at your direction or on your\nbehalf have directly or indirectly contacted or entered into any discussions, agreements or understandings with any person (other than any of your\nRepresentatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You agree that, during the\nStandstill Period (as defined below), neither you nor any of your Representatives acting at your direction or on your behalf will, without the prior\nwritten consent of the Company, directly or indirectly contact or enter into any discussions, agreements or understandings with any person (other\nthan any of your Representatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You further\nrepresent that you and your Representatives acting at your direction or on your behalf are not a party to, and you further agree that during the\nStandstill Period you and your Representatives acting at your direction or on your behalf will not enter into, any agreement or understanding with\nany person (including, without limitation, any of your Representatives) that would directly or indirectly restrict the ability of any other person to\nprovide financing (debt, equity or otherwise) to any other person relating to the Transaction.\n3. Standstill.\n(a) In consideration for being furnished with the Evaluation Material, you agree that during the Standstill Period, unless the board of directors\nof the Company (the “Board of Directors”) shall otherwise specifically request in writing in advance, you shall not, and shall cause your (i) directors,\nofficers, employees and (ii) individuals at your affiliates and individuals at your outside Representatives who have received Evaluation Material\nfrom you and are acting at your direction or on your behalf in connection with a possible Transaction, not to (and you and such persons will not\nassist or form a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), act in\nconcert or participate with or encourage other persons to), directly or indirectly, (A) acquire or offer to acquire, seek, propose or agree to acquire, by\nmeans of a purchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of any assets, businesses or\nsecurities of MModal Inc., or any option, warrant, convertible security, stock appreciation right or other right to acquire such ownership, including\nthrough any swap agreement or other security, contract right or derivative position, whether or not presently exercisable, that has an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the value of the common stock of the MModal Inc.or a value\ndetermined in whole or part with reference to, or derived in whole or in part from, the value of the common stock of the MModal Inc. and that\nincreases in value as the value of the common stock of the MModal Inc. increases or that provides to the holder an opportunity, directly or indirectly,\nto profit or share in any profit derived from any increase in the value of the common stock of the MModal Inc. (collectively, “MModal Inc.\nInterests”), (B) seek or propose to influence, advise, change or control the management, Board of Directors, governing instruments, policies or\naffairs of the MModal Inc., including, without limitation, by means of soliciting or participating in the solicitation of any proxies, (as such terms are\ndefined in Rule 14a-1 of Regulation 14A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule 14a-1(l)(2) and\nincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b)), contacting any person relating to any of the matters set forth in this\nAgreement (except as otherwise expressly agreed herein) or seeking to influence, advise or direct the vote of any holder of voting securities of the\nMModal Inc. or its affiliates or making a request to amend or waive this provision or any other provision\n4\nof this Section 3 of this Agreement or (C) make any public disclosure, or take any action that would be reasonably likely to require the MModal Inc.\nto make any public disclosure, with respect to any of the matters set forth in this Agreement. You represent to the MModal Inc. that you do not own\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) any MModal Inc. Interests as of the date\nhereof. For the avoidance of doubt, the foregoing provisions of this paragraph shall not prohibit activities of any your subsidiaries or affiliates in the\nordinary course of their respective businesses (“permitted activities”) provided that (i) the individuals working on such permitted activities\n(excluding the members of any investment, management or similar committee whose approval is required in connection with your evaluation and\nconsummation of a Transaction) have not received the Evaluation Material and are not aware (x) of the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status\nthereof, (y) of the existence or the terms of this Agreement or (z) that you or your Representatives have received or produced any Evaluation\nMaterial in connection with the Transaction, (ii) appropriate “information barriers” with respect to the Evaluation Material are established between\nindividuals who are working on behalf of you and your Representatives to whom Evaluation Material is disclosed hereunder and those individuals\nwho engage in permitted activities, (iii) such permitted activities are conducted only in accordance with the policies and procedures governing such\ninformation barriers and with applicable law, and (iv) the individuals engaging in permitted activities are not acting at the direction of you or any\nindividuals of your Representatives to whom Evaluation Material has been disclosed hereunder.\n(b) “Standstill Period” for purposes of this Agreement shall mean a period of one (1) year following the date of this Agreement.\n4. Non-Solicitation and No-Hire of Employees. During the Standstill Period, you agree that you will not, and you will direct individuals at\nyour Representatives not to on your behalf, directly or indirectly, hire or solicit any officer of the Company or other employee of the Company with\nwhom you or individuals at your Representatives acting at your direction or on your behalf, had contact in connection with your consideration of a\nTransaction or about whom you or individuals at your Representatives acting at your direction or on your behalf have received information in\nconnection with your consideration of a Transaction, other than a person who has not been an employee of the Company for at least 90 days and\nwhom neither you nor any of individuals at your Representatives acting at your direction or on your behalf, directly or indirectly solicited; provided,\nthat nothing in this Section 4 shall apply to any employee who contacts you on his or her own initiative or who responds to general mass solicitations\nof employment and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at\nsuch employees of the Company).\n5. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, on which you or your Representatives may rely as to the accuracy or completeness of the Evaluation\nMaterial for your or your Representatives’ purposes and that only those representations and warranties made by us in writing in a subsequent\ndefinitive agreement with you related to a Transaction, if any, shall have any legal effect. You agree that other than as may be set forth in such\ndefinitive agreement neither the Company nor its Representatives shall have\nany liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under federal or state securities laws,\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n5\n6. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement.\n7. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any reasonable fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive\nany requirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement may result in irreparable injury to the\nCompany.\n8. Compliance with Law.\n(a) You hereby confirm that you are aware and that individuals at your Representatives acting at your direction or on your behalf have been\nadvised (through policy manuals or otherwise) that the United States securities laws prohibit any person who has material non-public information\nabout a company from purchasing or selling securities of such company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person may purchase or sell such securities in reliance upon such information.\n(b) You hereby confirm that you and individuals at your affiliates who receive Evaluation Material from you under this Agreement, will (and\nyou and they will use commercially reasonable efforts to cause individuals at your respective Representatives acting at your direction or on your\nbehalf to) take action as reasonable and appropriate to prevent the use by you and them of any Evaluation Material about the Company in a way that\nwould reasonably be expected to violate any antitrust or federal or state securities laws in reliance upon such information.\n9. Miscellaneous.\n(a) Each party’s obligations under this Agreement expire upon the earlier of (i) 18 months after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n6\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n(e) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to any\nconflict of laws principles.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Southern District of New York or any New York State court sitting in New York City (the\n“Chosen Courts”), and solely in connection with claims arising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the\nChosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the\nChosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in\nany such action or proceeding shall be effective if notice is given in accordance with Section 9(g) of this Agreement. Each party hereto irrevocably\nwaives any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a\nfinal judgment in any lawsuit, action or other proceeding arising out of or relating to this Agreement brought in the courts referred to in the first\nsentence of this Section 9(f) shall be conclusive and binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction\nof which each of the parties is or may be subject, by suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nMModal Inc.\n9009 Carothers Parkway\nFranklin, Tennessee 37067\nAttention: General Counsel\nFacsimile: 866-796-5127\nTelephone: 615-261-1740\nEmail: mark.sullivan@mmodal.com\n7\nIf to you:\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18 Floor\nNew York, NY 10022\nAttention: Gregory A. Belinfanti\nManaging Director\nFacsimile: 212-277-1586\nTelephone: 212-277-1530\nEmail: gregory.a.belinfanti@oneequity.com\nWith a copy to:\nJPMorgan Chase & Co.—Legal Dept.\n270 Park Avenue, 38th Floor\nNew York, New York 10017\nAttention: Elizabeth De Guzman\nVice President & Assistant General Counsel\nTelephone: 212-270-7690\nFacsimile: 646-792-3771\nE-mail: elizabeth.deguzman@jpmorgan.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement\nby you without the prior written consent of the Company shall be void. The Company may assign this Agreement and/or the benefits hereunder to\none or more purchasers of all or a portion of the capital stock or assets of the Company.\n(i) This Agreement may only be amended by a separate writing signed by the Company and you expressly so amending this Agreement. Any\nprovision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the benefit\nthereof.\n(j) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall\nconstitute one and the same Agreement.\n[The remainder of this page is intentionally left blank.]\n8\nth\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nMMODAL INC.\nBy: /s/ Matthew Reid Jenkins\nName: Matthew Reid Jenkins\nTitle: SVP\nCONFIRMED AND AGREED TO:\nONE EQUITY PARTNERS IV, L.P.\nBy: OEP General Partner IV, L.P.,\nas General Partner\nBy: OEP Parent LLC,\nas General Partner\nBy: /s/ Gregory A. Belinfanti\nName: Gregory A. Belinfanti\nTitle: Managing Director	EX-99.(D)(3) 14 d377383dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIAL\nApril 11, 2012\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18t Floor\nNew York, NY 10022\nAttention: Gregory A. Belinfanti\nLadies and Gentlemen:\nOne Equity Partners IV, L.P. (“you” or “your”) has requested certain non-public, proprietary information from MModal Inc. (formerly known\nas MedQuist Holdings, Inc.) (together with its wholly-owned subsidiaries, the “Company”) in connection with your consideration of a possible\nnegotiated transaction between you and the Company (a “Transaction”). While this letter agreement (this “Agreement”) does not require the\nCompany to furnish such information, or you to receive it, this Agreement shall govern such information as may be provided or otherwise made\navailable by the Company.\n \n1. Confidentiality.\n(a) You agree to keep all Evaluation Material (as defined below) confidential and to use the Evaluation Material only for the purpose of\nevaluating or consummating a possible Transaction; provided, however, that (i) Evaluation Material may be disclosed to those of your officers,\ndirectors, employees, accountants, counsel, investment bankers, consultants, financial advisors, agents, individuals at affiliates who receive\nEvaluation Material from you and, solely with the prior written consent of the Company (which may be withheld at the Company’s sole discretion),\ndebt financing sources disclosed to the Company (such persons referred to in this clause (i) who receive Evaluation Material in their capacity as such\nbeing generally referred to herein as “Representatives”), in each case who need to know such information for the purpose of assisting you in your\nevaluation or consummation of a Transaction so long as you use commercially reasonable efforts to cause your Representatives to treat the\nEvaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation Material may be made to\nwhich the Company consents in writing and (iii) any disclosure of the Evaluation Material may be made to the extent expressly permitted by\nSection 1(d). You will be responsible for any breach of the terms of this Agreement by any of your Representatives other than any of your\nRepresentatives who enter into a separate confidentiality agreement with the Company on or after the date hereof. For purposes of this Agreement,\n“Evaluation Material” means non-public information regarding the Company or third parties that the Company or its Representatives furnish or\notherwise make available to you or your Representatives, whether on or after the date of this Agreement, and whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies, interpretations and any other oral, written or electronic\nmaterials prepared by or for you or your Representatives to the extent that they contain, reflect or are based upon, in whole or in\npart, such information. Notwithstanding the foregoing, the term “Evaluation Material” does not include information that (A) was or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives provided such other source is not known by\nyou or your Representatives to be bound by a confidentiality obligation to the Company or (B) was or becomes generally available to the public\n(other than as a result of a violation by you or your Representatives of this Agreement) or (C) was independently developed or created by you or\nyour Representatives without use of or reference to any Evaluation Material provided by the Company or violation of your obligations hereunder.\nNotwithstanding anything to the contrary in this Agreement, none of the provisions of this Agreement shall apply to any of your affiliates who do\nnot receive Evaluation Material; provided, that should Evaluation Material be made available by you or any of your Representatives to (i) any\ndirector, officer or employee of any of your affiliated portfolio companies, you will arrange for such portfolio companies to enter into a separate\nagreement with terms substantially similar hereto with the Company, (ii) any of OEP Parent LLC’s (“OEP Parent”) controlled affiliated investment\nentities, such entities shall be bound by this Agreement in accordance with its terms or (iii) any individual at your affiliates (other than your affiliated\nportfolio companies or any of OEP Parent’s controlled affiliated investment entities), the individuals at such affiliates who have received Evaluation\nMaterial from you shall be bound by this Agreement in accordance with its terms.\n(b) You agree that neither you nor any of your Representatives will, without the prior written consent of the Company, directly or indirectly,\ndisclose to any other person (excluding your Representatives) (i) the fact that discussions or negotiations may take place, are taking place or have\ntaken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status thereof, (ii) the existence or the\nterms of this Agreement or (iii) that you or your Representatives have received or produced any Evaluation Material; provided, however, that you or\nyour Representatives may make such disclosure to the extent expressly permitted by Section 1(d).\n(c) It is understood that all requests by you and your Representatives for information, facility tours or management meetings and discussions or\nquestions regarding procedures in connection with your evaluation of a Transaction, will be submitted or directed to Alicia Ciccone\n(alicia.ciccone@macquarie.com, +1(212) 231-1811) at Macquarie Capital (USA) Inc. (“Macquarie”). You also agree that, without the prior express\nconsent of the Company, you will not (and you will use commercially reasonable efforts to cause your Representatives not to) initiate or maintain\ncontact (except for those contacts made in the ordinary course of business unrelated to the possible Transaction) with any person or entity that, to\nyour knowledge, is (i) an officer, director, employee, consultant or agent of the Company regarding a Transaction, participation in a Transaction or\nthe Company’s business, operations, prospects or finances or (ii) a supplier, distributor, broker or customer of the Company regarding the Company\nor the business operations, assets, prospects or finances of the Company. It is understood that Macquarie will arrange for all contacts for due\ndiligence purposes in connection with your evaluation of a Transaction.\n(d) In the event that you or any of your Representatives are requested or required to disclose any Evaluation Material in connection with any\nlaw, rule or regulation, or by any judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents,\nsubpoena, civil investigation demand or similar process), you will\nprovide the Company with prompt notice, to the extent legally permissible, of such request or requirement(s). You also agree, to the extent legally\npermissible and reasonably practicable, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you intend\nto disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company, at the Company’s sole expense, to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above. If and to the extent, in the absence of a protective order or the receipt of a waiver from the Company ,\nyou or your Representatives are legally required as advised by counsel in writing to disclose Evaluation Material to any tribunal, you will use\nreasonable efforts to obtain assurances that confidential treatment will be accorded to any Evaluation Material that you are so required to disclose\nand thereafter you or your Representatives may disclose such information without liability hereunder. Notwithstanding the foregoing, no such notice\nshall be required in respect of disclosures of the Evaluation Material to financial regulatory authorities having jurisdiction over you or your\nRepresentatives, unless the requests by such regulatory authorities are specifically targeted at the Evaluation Material, the Company or the\nTransaction; provided, that you or your Representatives shall advise such financial regulatory authority of the confidential nature of such Evaluation\nMaterial.\n(e) Upon the written request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at\nyour option, destroy, all copies of the Evaluation Material, without retaining any copy thereof, including, to the extent practicable, expunging all\nsuch Evaluation Material from any computer, word processor or other device containing such information. If requested by the Company, an\nappropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed. Notwithstanding the foregoing, you\nand your Representatives may retain Evaluation Material (i) to the extent it is “backed-up” on your or their (as the case may be) electronic\ninformation management and communications systems or servers, and is not available to an end user and (ii) in accordance with applicable law, rule,\nregulation, professional standards and your and your Representatives’ respective bona fide document retention policies. Any and all duties and\nobligations existing under this Agreement shall remain in full force and effect until this Agreement is terminated in accordance with Section 9(a),\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section 1(e). You also agree to notify us promptly upon your\ndetermination to cease to consider a Transaction.\n(f) To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or government investigations, you understand and agree that the parties\nhave a commonality of legal interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege or other applicable privilege. All Evaluation Material furnished by the Company or its Representatives that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the common legal interest and joint defense doctrine, and the parties agree to take commercially reasonable\nefforts to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n3\n2. No Other Discussions or Arrangements. You represent that neither you nor any of your Representatives acting at your direction or on your\nbehalf have directly or indirectly contacted or entered into any discussions, agreements or understandings with any person (other than any of your\nRepresentatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You agree that, during the\nStandstill Period (as defined below), neither you nor any of your Representatives acting at your direction or on your behalf will, without the prior\nwritten consent of the Company, directly or indirectly contact or enter into any discussions, agreements or understandings with any person (other\nthan any of your Representatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You further\nrepresent that you and your Representatives acting at your direction or on your behalf are not a party to, and you further agree that during the\nStandstill Period you and your Representatives acting at your direction or on your behalf will not enter into, any agreement or understanding with\nany person (including, without limitation, any of your Representatives) that would directly or indirectly restrict the ability of any other person to\nprovide financing (debt, equity or otherwise) to any other person relating to the Transaction.\n3. Standstill.\n(a) In consideration for being furnished with the Evaluation Material, you agree that during the Standstill Period, unless the board of directors\nof the Company (the “Board of Directors”) shall otherwise specifically request in writing in advance, you shall not, and shall cause your (i) directors,\nofficers, employees and (ii) individuals at your affiliates and individuals at your outside Representatives who have received Evaluation Material\nfrom you and are acting at your direction or on your behalf in connection with a possible Transaction, not to (and you and such persons will not\nassist or form a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), act in\nconcert or participate with or encourage other persons to), directly or indirectly, (A) acquire or offer to acquire, seek, propose or agree to acquire, by\nmeans of a purchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of any assets, businesses or\nsecurities of MModal Inc., or any option, warrant, convertible security, stock appreciation right or other right to acquire such ownership, including\nthrough any swap agreement or other security, contract right or derivative position, whether or not presently exercisable, that has an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the value of the common stock of the MModal Inc.or a value\ndetermined in whole or part with reference to, or derived in whole or in part from, the value of the common stock of the MModal Inc. and that\nincreases in value as the value of the common stock of the MModal Inc. increases or that provides to the holder an opportunity, directly or indirectly,\nto profit or share in any profit derived from any increase in the value of the common stock of the MModal Inc. (collectively, “MModal Inc.\nInterests”), (B) seek or propose to influence, advise, change or control the management, Board of Directors, governing instruments, policies or\naffairs of the MModal Inc., including, without limitation, by means of soliciting or participating in the solicitation of any proxies, (as such terms are\ndefined in Rule 14a-1 of Regulation 14A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and\nincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b)), contacting any person relating to any of the matters set forth in this\nAgreement (except as otherwise expressly agreed herein) or seeking to influence, advise or direct the vote of any holder of voting securities of the\nMModal Inc. or its affiliates or making a request to amend or waive this provision or any other provision\n4\nof this Section 3 of this Agreement or (C) make any public disclosure, or take any action that would be reasonably likely to require the MModal Inc.\nto make any public disclosure, with respect to any of the matters set forth in this Agreement. You represent to the MModal Inc. that you do not own\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) any MModal Inc. Interests as of the date\nhereof. For the avoidance of doubt, the foregoing provisions of this paragraph shall not prohibit activities of any your subsidiaries or affiliates in the\nordinary course of their respective businesses (“permitted activities”) provided that (i) the individuals working on such permitted activities\n(excluding the members of any investment, management or similar committee whose approval is required in connection with your evaluation and\nconsummation of a Transaction) have not received the Evaluation Material and are not aware (x) of the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status\nthereof, (y) of the existence or the terms of this Agreement or (z) that you or your Representatives have received or produced any Evaluation\nMaterial in connection with the Transaction, (ii) appropriate “information barriers” with respect to the Evaluation Material are established between\nindividuals who are working on behalf of you and your Representatives to whom Evaluation Material is disclosed hereunder and those individuals\nwho engage in permitted activities, (iii) such permitted activities are conducted only in accordance with the policies and procedures governing such\ninformation barriers and with applicable law, and (iv) the individuals engaging in permitted activities are not acting at the direction of you or any\nindividuals of your Representatives to whom Evaluation Material has been disclosed hereunder.\n(b) “Standstill Period” for purposes of this Agreement shall mean a period of one (1) year following the date of this Agreement.\n4. Non-Solicitation and No-Hire of Employees. During the Standstill Period, you agree that you will not, and you will direct individuals at\nyour Representatives not to on your behalf, directly or indirectly, hire or solicit any officer of the Company or other employee of the Company with\nwhom you or individuals at your Representatives acting at your direction or on your behalf, had contact in connection with your consideration of a\nTransaction or about whom you or individuals at your Representatives acting at your direction or on your behalf have received information in\nconnection with your consideration of a Transaction, other than a person who has not been an employee of the Company for at least 90 days and\nwhom neither you nor any of individuals at your Representatives acting at your direction or on your behalf, directly or indirectly solicited; provided,\nthat nothing in this Section 4 shall apply to any employee who contacts you on his or her own initiative or who responds to general mass solicitations\nof employment and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at\nsuch employees of the Company).\n5. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, on which you or your Representatives may rely as to the accuracy or completeness of the Evaluation\nMaterial for your or your Representatives’ purposes and that only those representations and warranties made by us in writing in a subsequent\ndefinitive agreement with you related to a Transaction, if any, shall have any legal effect. You agree that other than as may be set forth in such\ndefinitive agreement neither the Company nor its Representatives shall have\nany liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under federal or state securities laws,\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n5\n6. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement.\n7. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any reasonable fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive\nany requirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement may result in irreparable injury to the\nCompany.\n8. Compliance with Law.\n(a) You hereby confirm that you are aware and that individuals at your Representatives acting at your direction or on your behalf have been\nadvised (through policy manuals or otherwise) that the United States securities laws prohibit any person who has material non-public information\nabout a company from purchasing or selling securities of such company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person may purchase or sell such securities in reliance upon such information.\n(b) You hereby confirm that you and individuals at your affiliates who receive Evaluation Material from you under this Agreement, will (and\nyou and they will use commercially reasonable efforts to cause individuals at your respective Representatives acting at your direction or on your\nbehalf to) take action as reasonable and appropriate to prevent the use by you and them of any Evaluation Material about the Company in a way that\nwould reasonably be expected to violate any antitrust or federal or state securities laws in reliance upon such information.\n9. Miscellaneous.\n(a) Each party’s obligations under this Agreement expire upon the earlier of (i) 18 months after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n6\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n(e) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to any\nconflict of laws principles.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Southern District of New York or any New York State court sitting in New York City (the\n“Chosen Courts”), and solely in connection with claims arising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the\nChosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the\nChosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in\nany such action or proceeding shall be effective if notice is given in accordance with Section 9(g) of this Agreement. Each party hereto irrevocably\nwaives any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a\nfinal judgment in any lawsuit, action or other proceeding arising out of or relating to this Agreement brought in the courts referred to in the first\nsentence of this Section 9(f) shall be conclusive and binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction\nof which each of the parties is or may be subject, by suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nMDModal Inc.\n9009 Carothers Parkway\nFranklin, Tennessee 37067\nAttention: General Counsel\nFacsimile: 866-796-5127\nTelephone: 615-261-1740\nEmail: mark.sullivan@mmodal.com\nIf to you:\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18t Floor\nNew York, NY 10022\nAttention: Gregory A. Belinfanti\nManaging Director\nFacsimile: 212-277-1586\nTelephone: 212-277-1530\nEmail: gregory.a.belinfanti@oneequity.com\nWith a copy to:\nJPMorgan Chase & Co.—Legal Dept.\n270 Park Avenue, 38th Floor\nNew York, New York 10017\nAttention: Elizabeth De Guzman\nVice President & Assistant General Counsel\nTelephone: 212-270-7690\nFacsimile: 646-792-3771\nE-mail: elizabeth.deguzman@jpmorgan.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement\nby you without the prior written consent of the Company shall be void. The Company may assign this Agreement and/or the benefits hereunder to\none or more purchasers of all or a portion of the capital stock or assets of the Company.\n(i) This Agreement may only be amended by a separate writing signed by the Company and you expressly so amending this Agreement. Any\nprovision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the benefit\nthereof.\n(j) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall\nconstitute one and the same Agreement.\n[The remainder of this page is intentionally left blank.]\n8\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nMMODAL INC.\nBy: /s/ Matthew Reid Jenkins\nName: Matthew Reid Jenkins\nTitle: SVP\nCONFIRMED AND AGREED TO:\nONE EQUITY PARTNERS 1V, L.P.\nBy: OEP General Partner IV, L.P,,\nas General Partner\nBy: OEP Parent LLC,\nas General Partner\nBy: /s/ Gregory A. Belinfanti\nName: Gregory A. Belinfanti\nTitle: Managing Director	EX-99.(D)(3) 14 377383dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIAL\nApril 11, 2012\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18th Floor\nNew York, NY 10022\nAttention:\nGregory A. Belinfanti\nLadies and Gentlemen:\nOne Equity Partners IV, L.P. ("you" or "your") has requested certain non-public, proprietary information from MModal Inc. (formerly known\nas MedQuist Holdings, Inc.) (together with its wholly-owned subsidiaries, the "Company.") in connection with your consideration of a possible\nnegotiated transaction between you and the Company (a "Transaction"). While this letter agreement (this "Agreement") does not require the\nCompany to furnish such information, or you to receive it, this Agreement shall govern such information as may be provided or otherwise made\navailable by the Company.\n1. Confidentiality..\n(a) You agree to keep all Evaluation Material (as defined below) confidential and to use the Evaluation Material only for the purpose of\nevaluating or consummating a possible Transaction; provided, however, that (i) Evaluation Material may be disclosed to those of your officers,\ndirectors, employees, accountants, counsel, investment bankers, consultants, financial advisors, agents, individuals at affiliates who receive\nEvaluation Material from you and, solely with the prior written consent of the Company (which may be withheld at the Company's sole discretion),\ndebt financing sources disclosed to the Company (such persons referred to in this clause (i) who receive Evaluation Material in their capacity as such\nbeing generally referred to herein as "Representatives"), in each case who need to know such information for the purpose of assisting you in your\nevaluation or consummation of a Transaction so long as you use commercially reasonable efforts to cause your Representatives to treat the\nEvaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation Material may be made to\nwhich the Company consents in writing and (iii) any disclosure of the Evaluation Material may be made to the extent expressly permitted by\nSection 1(d). You will be responsible for any breach of the terms of this Agreement by any of your Representatives other than any of your\nRepresentatives who enter into a separate confidentiality agreement with the Company on or after the date hereof. For purposes of this Agreement,\n"Evaluation Material" means non-public information regarding the Company or third parties that the Company or its Representatives furnish\nor\notherwise make available to you or your Representatives, whether on or after the date of this Agreement, and whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies, interpretations and any other oral, written or electronic\nmaterials prepared by or for you or your Representatives to the extent that they contain, reflect or are based upon, in whole or\nin\npart, such information. Notwithstanding the foregoing, the term "Evaluation Material" does not include information that (A) was or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives provided such other source is not known by\nyou or your Representatives to be bound by a confidentiality obligation to the Company or (B) was or becomes generally available to the public\n(other than as a result of a violation by you or your Representatives of this Agreement) or (C) was independently developed or created by you or\nyour Representatives without use of or reference to any Evaluation Material provided by the Company or violation of your obligations hereunder.\nNotwithstanding anything to the contrary in this Agreement, none of the provisions of this Agreement shall apply to any of your affiliates who\ndo\nnot receive Evaluation Material; provided, that should Evaluation Material be made available by you or any of your Representatives to (i) any\ndirector, officer or employee of any of your affiliated portfolio companies, you will arrange for such portfolio companies to enter into a separate\nagreement with terms substantially similar hereto with the Company, (ii) any of OEP Parent LLC's ("OEP Parent") controlled affiliated investment\nentities, such entities shall be bound by this Agreement in accordance with its terms or (iii) any individual at your affiliates (other than your affiliated\nportfolio companies or any of OEP Parent's controlled affiliated investment entities), the individuals at such affiliates who have received Evaluation\nMaterial from you shall be bound by this Agreement in accordance with its terms.\n(b) You agree that neither you nor any of your Representatives will, without the prior written consent of the Company, directly or indirectly,\ndisclose to any other person (excluding your Representatives) (i) the fact that discussions or negotiations may take place, are taking place or have\ntaken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status thereof, (ii) the existence or the\nterms of this Agreement or (iii) that you or your Representatives have received or produced any Evaluation Material; provided, however, that you or\nyour Representatives may make such disclosure to the extent expressly permitted by Section 1(d).\n(c) It is understood that all requests by you and your Representatives for information, facility tours or management meetings and discussions or\nquestions regarding procedures in connection with your evaluation of a Transaction, will be submitted or directed to Alicia Ciccone\n(alicia.ciccone@macquarie.com, +1(212) 231-1811) at Macquarie Capital (USA) Inc. ("Macquarie"). You also agree that, without the prior express\nconsent of the Company, you will not (and you will use commercially reasonable efforts to cause your Representatives not to) initiate or maintain\ncontact (except for those contacts made in the ordinary course of business unrelated to the possible Transaction) with any person or entity that,\nto\nyour knowledge, is (i) an officer, director, employee, consultant or agent of the Company regarding a Transaction, participation in a Transaction or\nthe Company's business, operations, prospects or finances or (ii) a supplier, distributor, broker or customer of the Company regarding the Company\nor the business operations, assets, prospects or finances of the Company. It is understood that Macquarie will arrange for all contacts for due\ndiligence purposes in connection with your evaluation of a Transaction.\n(d) In the event that you or any of your Representatives are requested or required to disclose any Evaluation Material in connection with any\nlaw, rule or regulation, or by any judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents,\nsubpoena, civil investigation demand or similar process), you will\n2\nprovide the Company with prompt notice, to the extent legally permissible, of such request or requirement(s). You also agree, to the extent legally\npermissible and reasonably practicable, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you intend\nto disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company, at the Company's sole expense, to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above. If and to the extent, in the absence of a protective order or the receipt of a waiver from the Company\nyou or your Representatives are legally required as advised by counsel in writing to disclose Evaluation Material to any tribunal, you will use\nreasonable efforts to obtain assurances that confidential treatment will be accorded to any Evaluation Material that you are so required to disclose\nand thereafter you or your Representatives may disclose such information without liability hereunder. Notwithstanding the foregoing, no such notice\nshall be required in respect of disclosures of the Evaluation Material to financial regulatory authorities having jurisdiction over you or your\nRepresentatives, unless the requests by such regulatory authorities are specifically targeted at the Evaluation Material, the Company or the\nTransaction; provided, that you or your Representatives shall advise such financial regulatory authority of the confidential nature of such Evaluation\nMaterial.\n(e) Upon the written request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or,\nat\nyour option, destroy, all copies of the Evaluation Material, without retaining any copy thereof, including, to the extent practicable, expunging all\nsuch Evaluation Material from any computer, word processor or other device containing such information. If requested by the Company, an\nappropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed. Notwithstanding the foregoing, you\nand your Representatives may retain Evaluation Material (i) to the extent it is "backed-up" on your or their (as the case may be) electronic\ninformation management and communications systems or servers, and is not available to an end user and (ii) in accordance with applicable law, rule,\nregulation, professional standards and your and your Representatives' respective bona fide document retention policies. Any and all duties and\nobligations existing under this Agreement shall remain in full force and effect until this Agreement is terminated in accordance with Section 9(a),\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section 1(e). You also agree to notify us promptly upon your\ndetermination to cease to consider a Transaction.\n(f) To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or government investigations, you understand and agree that the parties\nhave a commonality of legal interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of\nsuch\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege or other applicable privilege. All Evaluation Material furnished by the Company or its Representatives that is entitled\nto\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the common legal interest and joint defense doctrine, and the parties agree to take commercially reasonable\nefforts to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n3\n2. No Other Discussions or Arrangements. You represent that neither you nor any of your Representatives acting at your direction or on your\nbehalf have directly or indirectly contacted or entered into any discussions, agreements or understandings with any person (other than any of your\nRepresentatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You agree that, during the\nStandstill Period (as defined below), neither you nor any of your Representatives acting at your direction or on your behalf will, without the prior\nwritten consent of the Company, directly or indirectly contact or enter into any discussions, agreements or understandings with any person (other\nthan any of your Representatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You further\nrepresent that you and your Representatives acting at your direction or on your behalf are not a party to, and you further agree that during the\nStandstill Period you and your Representatives acting at your direction or on your behalf will not enter into, any agreement or understanding with\nany person (including, without limitation, any of your Representatives) that would directly or indirectly restrict the ability of any other person\nto\nprovide financing (debt, equity or otherwise) to any other person relating to the Transaction.\n3. Standstill.\n(a) In consideration for being furnished with the Evaluation Material, you agree that during the Standstill Period, unless the board of directors\nof the Company (the "Board of Directors") shall otherwise specifically request in writing in advance, you shall not, and shall cause your (i) directors,\nofficers, employees and (ii) individuals at your affiliates and individuals at your outside Representatives who have received Evaluation Material\nfrom you and are acting at your direction or on your behalf in connection with a possible Transaction, not to (and you and such persons will not\nassist or form a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), act in\nconcert or participate with or encourage other persons to), directly or indirectly, (A) acquire or offer to acquire, seek, propose or agree to acquire, by\nmeans of a purchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of any assets, businesses or\nsecurities of MModal Inc., or any option, warrant, convertible security, stock appreciation right or other right to acquire such ownership, including\nthrough any swap agreement or other security, contract right or derivative position, whether or not presently exercisable, that has an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the value of the common stock of the MModal Inc.or a value\ndetermined in whole or part with reference to, or derived in whole or in part from, the value of the common stock of the MModal Inc. and that\nincreases in value as the value of the common stock of the MModal Inc. increases or that provides to the holder an opportunity, directly or indirectly,\nto profit or share in any profit derived from any increase in the value of the common stock of the MModal Inc. (collectively, "MModal Inc.\nInterests"), (B) seek or propose to influence, advise, change or control the management, Board of Directors, governing instruments, policies or\naffairs of the MModal Inc., including, without limitation, by means of soliciting or participating in the solicitation of any proxies, (as such terms are\ndefined in Rule 14a-1 of Regulation 14A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and\nincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b)), contacting any person relating to any of the matters set forth in this\nAgreement (except as otherwise expressly agreed herein) or seeking to influence, advise or direct the vote of any holder of voting securities of the\nMModal Inc. or its affiliates or making a request to amend or waive this provision or any other provision\n4\nof this Section 3 of this Agreement or (C) make any public disclosure, or take any action that would be reasonably likely to require the MModal Inc.\nto make any public disclosure, with respect to any of the matters set forth in this Agreement. You represent to the MModal Inc. that you do not own\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) any MModal Inc. Interests as of the date\nhereof. For the avoidance of doubt, the foregoing provisions of this paragraph shall not prohibit activities of any your subsidiaries or affiliates in the\nordinary course of their respective businesses ("permitted activities") provided that (i) the individuals working on such permitted activities\n(excluding the members of any investment, management or similar committee whose approval is required in connection with your evaluation and\nconsummation of a Transaction) have not received the Evaluation Material and are not aware (x) of the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status\nthereof, (y) of the existence or the terms of this Agreement or (z) that you or your Representatives have received or produced any Evaluation\nMaterial in connection with the Transaction, (ii) appropriate "information barriers" with respect to the Evaluation Material are established between\nindividuals who are working on behalf of you and your Representatives to whom Evaluation Material is disclosed hereunder and those individuals\nwho engage in permitted activities, (iii) such permitted activities are conducted only in accordance with the policies and procedures governing such\ninformation barriers and with applicable law, and (iv) the individuals engaging in permitted activities are not acting at the direction of you or any\nindividuals of your Representatives to whom Evaluation Material has been disclosed hereunder.\n(b) "Standstill Period" for purposes of this Agreement shall mean a period of one (1) year following the date of this Agreement.\n4. Non-Solicitation and No-Hire of Employees. During the Standstill Period, you agree that you will not, and you will direct individuals at\nyour Representatives not to on your behalf, directly or indirectly, hire or solicit any officer of the Company or other employee of the Company with\nwhom you or individuals at your Representatives acting at your direction or on your behalf, had contact in connection with your consideration of a\nTransaction or about whom you or individuals at your Representatives acting at your direction or on your behalf have received information in\nconnection with your consideration of a Transaction, other than a person who has not been an employee of the Company for at least 90 days and\nwhom neither you nor any of individuals at your Representatives acting at your direction or on your behalf, directly or indirectly solicited; provided,\nthat nothing in this Section 4 shall apply to any employee who contacts you on his or her own initiative or who responds to general mass solicitations\nof employment and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at\nsuch employees of the Company).\n5. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, on which you or your Representatives may rely as to the accuracy or completeness of the Evaluation\nMaterial for your or your Representatives' purposes and that only those representations and warranties made by us in writing in a subsequent\ndefinitive agreement with you related to a Transaction, if any, shall have any legal effect. You agree that other than as may be set forth in such\ndefinitive agreement neither the Company nor its Representatives shall have\nany liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under federal or state securities laws,\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n5\n6. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement.\n7. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any reasonable fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive\nany requirement for the securing or posting of a bond in connection with the Company's seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement may result in irreparable injury to the\nCompany.\n8. Compliance with Law.\n(a) You hereby confirm that you are aware and that individuals at your Representatives acting at your direction or on your behalf have been\nadvised (through policy manuals or otherwise) that the United States securities laws prohibit any person who has material non-public information\nabout a company from purchasing or selling securities of such company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person may purchase or sell such securities in reliance upon such information.\n(b) You hereby confirm that you and individuals at your affiliates who receive Evaluation Material from you under this Agreement, will (and\nyou and they will use commercially reasonable efforts to cause individuals at your respective Representatives acting at your direction or on your\nbehalf to) take action as reasonable and appropriate to prevent the use by you and them of any Evaluation Material about the Company in a way\nthat\nwould reasonably be expected to violate any antitrust or federal or state securities laws in reliance upon such information.\n9. Miscellaneous.\n(a) Each party's obligations under this Agreement expire upon the earlier of (i) 18 months after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term "person" as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term "affiliate" as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n6\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n(e) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to any\nconflict of laws principles.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Southern District of New York or any New York State court sitting in New York City (the\n"Chosen Courts"), and solely in connection with claims arising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the\nChosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the\nChosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in\nany such action or proceeding shall be effective if notice is given in accordance with Section 9(g) of this Agreement. Each party hereto irrevocably\nwaives\nany\nand\nall\nright to trial by jury in any legal proceeding arising out of or relating to this Agreement. Each of the parties hereto agrees\nthat\na\nfinal judgment in any lawsuit, action or other proceeding arising out of or relating to this Agreement brought in the courts referred to in the first\nsentence of this Section 9(f) shall be conclusive and binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction\nof which each of the parties is or may be subject, by suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nMModal Inc.\n9009 Carothers Parkway\nFranklin, Tennessee 37067\nAttention: General Counsel\nFacsimile: 866-796-5127\nTelephone: 615-261-1740\nEmail: mark.sullivan@mmodal.com\n7\nIf to you:\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18th Floor\nNew York, NY 10022\nAttention: Gregory A. Belinfanti\nManaging Director\nFacsimile: 212-277-1586\nTelephone: 212-277-1530\nEmail: gregory.a.belinfanti@oneequity.com\nWith a copy to:\nJPMorgan Chase & Co.-Legal Dept.\n270 Park Avenue, 38th Floor\nNew York, New York 10017\nAttention: Elizabeth De Guzman\nVice President & Assistant General Counsel\nTelephone: 212-270-7690\nFacsimile: 646-792-3771\nE-mail: l:elizabeth.deguzman@jpmorgan.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement\nby\nyou without the prior written consent of the Company shall be void. The Company may assign this Agreement and/or the benefits hereunder to\none or more purchasers of all or a portion of the capital stock or assets of the Company.\n(i) This Agreement may only be amended by a separate writing signed by the Company and you expressly SO amending this Agreement. Any\nprovision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the benefit\nthereof.\n(j) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall\nconstitute one and the same Agreement.\n[The remainder of this page is intentionally left blank.]\n8\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nMMODAL INC.\nBy:\n/s/ Matthew Reid Jenkins\nName: Matthew Reid Jenkins\nTitle: SVP\nCONFIRMED AND AGREED TO:\nONE EQUITY PARTNERS IV, L.P.\nBy: OEP General Partner IV, L.P.,\nas General Partner\nBy: OEP Parent LLC,\nas General Partner\nBy:\n/s/ Gregory A. Belinfanti\nName: Gregory A. Belinfanti\nTitle: Managing Director	EX-99.(D)(3) 14 d377383dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIAL\nApril 11, 2012\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18 Floor\nNew York, NY 10022\nAttention:\nGregory A. Belinfanti\nLadies and Gentlemen:\nOne Equity Partners IV, L.P. (“you” or “your”) has requested certain non-public, proprietary information from MModal Inc. (formerly known\nas MedQuist Holdings, Inc.) (together with its wholly-owned subsidiaries, the “Company”) in connection with your consideration of a possible\nnegotiated transaction between you and the Company (a “Transaction”). While this letter agreement (this “Agreement”) does not require the\nCompany to furnish such information, or you to receive it, this Agreement shall govern such information as may be provided or otherwise made\navailable by the Company.\n1. Confidentiality.\n(a) You agree to keep all Evaluation Material (as defined below) confidential and to use the Evaluation Material only for the purpose of\nevaluating or consummating a possible Transaction; provided, however, that (i) Evaluation Material may be disclosed to those of your officers,\ndirectors, employees, accountants, counsel, investment bankers, consultants, financial advisors, agents, individuals at affiliates who receive\nEvaluation Material from you and, solely with the prior written consent of the Company (which may be withheld at the Company’s sole discretion),\ndebt financing sources disclosed to the Company (such persons referred to in this clause (i) who receive Evaluation Material in their capacity as such\nbeing generally referred to herein as “Representatives”), in each case who need to know such information for the purpose of assisting you in your\nevaluation or consummation of a Transaction so long as you use commercially reasonable efforts to cause your Representatives to treat the\nEvaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation Material may be made to\nwhich the Company consents in writing and (iii) any disclosure of the Evaluation Material may be made to the extent expressly permitted by\nSection 1(d). You will be responsible for any breach of the terms of this Agreement by any of your Representatives other than any of your\nRepresentatives who enter into a separate confidentiality agreement with the Company on or after the date hereof. For purposes of this Agreement,\n“Evaluation Material” means non-public information regarding the Company or third parties that the Company or its Representatives furnish or\notherwise make available to you or your Representatives, whether on or after the date of this Agreement, and whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies, interpretations and any other oral, written or electronic\nmaterials prepared by or for you or your Representatives to the extent that they contain, reflect or are based upon, in whole or in\nth\npart, such information. Notwithstanding the foregoing, the term “Evaluation Material” does not include information that (A) was or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives provided such other source is not known by\nyou or your Representatives to be bound by a confidentiality obligation to the Company or (B) was or becomes generally available to the public\n(other than as a result of a violation by you or your Representatives of this Agreement) or (C) was independently developed or created by you or\nyour Representatives without use of or reference to any Evaluation Material provided by the Company or violation of your obligations hereunder.\nNotwithstanding anything to the contrary in this Agreement, none of the provisions of this Agreement shall apply to any of your affiliates who do\nnot receive Evaluation Material; provided, that should Evaluation Material be made available by you or any of your Representatives to (i) any\ndirector, officer or employee of any of your affiliated portfolio companies, you will arrange for such portfolio companies to enter into a separate\nagreement with terms substantially similar hereto with the Company, (ii) any of OEP Parent LLC’s (“OEP Parent”) controlled affiliated investment\nentities, such entities shall be bound by this Agreement in accordance with its terms or (iii) any individual at your affiliates (other than your affiliated\nportfolio companies or any of OEP Parent’s controlled affiliated investment entities), the individuals at such affiliates who have received Evaluation\nMaterial from you shall be bound by this Agreement in accordance with its terms.\n(b) You agree that neither you nor any of your Representatives will, without the prior written consent of the Company, directly or indirectly,\ndisclose to any other person (excluding your Representatives) (i) the fact that discussions or negotiations may take place, are taking place or have\ntaken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status thereof, (ii) the existence or the\nterms of this Agreement or (iii) that you or your Representatives have received or produced any Evaluation Material; provided, however, that you or\nyour Representatives may make such disclosure to the extent expressly permitted by Section 1(d).\n(c) It is understood that all requests by you and your Representatives for information, facility tours or management meetings and discussions or\nquestions regarding procedures in connection with your evaluation of a Transaction, will be submitted or directed to Alicia Ciccone\n(alicia.ciccone@macquarie.com, +1(212) 231-1811) at Macquarie Capital (USA) Inc. (“Macquarie”). You also agree that, without the prior express\nconsent of the Company, you will not (and you will use commercially reasonable efforts to cause your Representatives not to) initiate or maintain\ncontact (except for those contacts made in the ordinary course of business unrelated to the possible Transaction) with any person or entity that, to\nyour knowledge, is (i) an officer, director, employee, consultant or agent of the Company regarding a Transaction, participation in a Transaction or\nthe Company’s business, operations, prospects or finances or (ii) a supplier, distributor, broker or customer of the Company regarding the Company\nor the business operations, assets, prospects or finances of the Company. It is understood that Macquarie will arrange for all contacts for due\ndiligence purposes in connection with your evaluation of a Transaction.\n(d) In the event that you or any of your Representatives are requested or required to disclose any Evaluation Material in connection with any\nlaw, rule or regulation, or by any judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents,\nsubpoena, civil investigation demand or similar process), you will\n2\nprovide the Company with prompt notice, to the extent legally permissible, of such request or requirement(s). You also agree, to the extent legally\npermissible and reasonably practicable, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you intend\nto disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company, at the Company’s sole expense, to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above. If and to the extent, in the absence of a protective order or the receipt of a waiver from the Company ,\nyou or your Representatives are legally required as advised by counsel in writing to disclose Evaluation Material to any tribunal, you will use\nreasonable efforts to obtain assurances that confidential treatment will be accorded to any Evaluation Material that you are so required to disclose\nand thereafter you or your Representatives may disclose such information without liability hereunder. Notwithstanding the foregoing, no such notice\nshall be required in respect of disclosures of the Evaluation Material to financial regulatory authorities having jurisdiction over you or your\nRepresentatives, unless the requests by such regulatory authorities are specifically targeted at the Evaluation Material, the Company or the\nTransaction; provided, that you or your Representatives shall advise such financial regulatory authority of the confidential nature of such Evaluation\nMaterial.\n(e) Upon the written request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at\nyour option, destroy, all copies of the Evaluation Material, without retaining any copy thereof, including, to the extent practicable, expunging all\nsuch Evaluation Material from any computer, word processor or other device containing such information. If requested by the Company, an\nappropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed. Notwithstanding the foregoing, you\nand your Representatives may retain Evaluation Material (i) to the extent it is “backed-up” on your or their (as the case may be) electronic\ninformation management and communications systems or servers, and is not available to an end user and (ii) in accordance with applicable law, rule,\nregulation, professional standards and your and your Representatives’ respective bona fide document retention policies. Any and all duties and\nobligations existing under this Agreement shall remain in full force and effect until this Agreement is terminated in accordance with Section 9(a),\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section 1(e). You also agree to notify us promptly upon your\ndetermination to cease to consider a Transaction.\n(f) To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or government investigations, you understand and agree that the parties\nhave a commonality of legal interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege or other applicable privilege. All Evaluation Material furnished by the Company or its Representatives that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the common legal interest and joint defense doctrine, and the parties agree to take commercially reasonable\nefforts to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n3\n2. No Other Discussions or Arrangements. You represent that neither you nor any of your Representatives acting at your direction or on your\nbehalf have directly or indirectly contacted or entered into any discussions, agreements or understandings with any person (other than any of your\nRepresentatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You agree that, during the\nStandstill Period (as defined below), neither you nor any of your Representatives acting at your direction or on your behalf will, without the prior\nwritten consent of the Company, directly or indirectly contact or enter into any discussions, agreements or understandings with any person (other\nthan any of your Representatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You further\nrepresent that you and your Representatives acting at your direction or on your behalf are not a party to, and you further agree that during the\nStandstill Period you and your Representatives acting at your direction or on your behalf will not enter into, any agreement or understanding with\nany person (including, without limitation, any of your Representatives) that would directly or indirectly restrict the ability of any other person to\nprovide financing (debt, equity or otherwise) to any other person relating to the Transaction.\n3. Standstill.\n(a) In consideration for being furnished with the Evaluation Material, you agree that during the Standstill Period, unless the board of directors\nof the Company (the “Board of Directors”) shall otherwise specifically request in writing in advance, you shall not, and shall cause your (i) directors,\nofficers, employees and (ii) individuals at your affiliates and individuals at your outside Representatives who have received Evaluation Material\nfrom you and are acting at your direction or on your behalf in connection with a possible Transaction, not to (and you and such persons will not\nassist or form a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), act in\nconcert or participate with or encourage other persons to), directly or indirectly, (A) acquire or offer to acquire, seek, propose or agree to acquire, by\nmeans of a purchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of any assets, businesses or\nsecurities of MModal Inc., or any option, warrant, convertible security, stock appreciation right or other right to acquire such ownership, including\nthrough any swap agreement or other security, contract right or derivative position, whether or not presently exercisable, that has an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the value of the common stock of the MModal Inc.or a value\ndetermined in whole or part with reference to, or derived in whole or in part from, the value of the common stock of the MModal Inc. and that\nincreases in value as the value of the common stock of the MModal Inc. increases or that provides to the holder an opportunity, directly or indirectly,\nto profit or share in any profit derived from any increase in the value of the common stock of the MModal Inc. (collectively, “MModal Inc.\nInterests”), (B) seek or propose to influence, advise, change or control the management, Board of Directors, governing instruments, policies or\naffairs of the MModal Inc., including, without limitation, by means of soliciting or participating in the solicitation of any proxies, (as such terms are\ndefined in Rule 14a-1 of Regulation 14A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule 14a-1(l)(2) and\nincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b)), contacting any person relating to any of the matters set forth in this\nAgreement (except as otherwise expressly agreed herein) or seeking to influence, advise or direct the vote of any holder of voting securities of the\nMModal Inc. or its affiliates or making a request to amend or waive this provision or any other provision\n4\nof this Section 3 of this Agreement or (C) make any public disclosure, or take any action that would be reasonably likely to require the MModal Inc.\nto make any public disclosure, with respect to any of the matters set forth in this Agreement. You represent to the MModal Inc. that you do not own\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) any MModal Inc. Interests as of the date\nhereof. For the avoidance of doubt, the foregoing provisions of this paragraph shall not prohibit activities of any your subsidiaries or affiliates in the\nordinary course of their respective businesses (“permitted activities”) provided that (i) the individuals working on such permitted activities\n(excluding the members of any investment, management or similar committee whose approval is required in connection with your evaluation and\nconsummation of a Transaction) have not received the Evaluation Material and are not aware (x) of the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status\nthereof, (y) of the existence or the terms of this Agreement or (z) that you or your Representatives have received or produced any Evaluation\nMaterial in connection with the Transaction, (ii) appropriate “information barriers” with respect to the Evaluation Material are established between\nindividuals who are working on behalf of you and your Representatives to whom Evaluation Material is disclosed hereunder and those individuals\nwho engage in permitted activities, (iii) such permitted activities are conducted only in accordance with the policies and procedures governing such\ninformation barriers and with applicable law, and (iv) the individuals engaging in permitted activities are not acting at the direction of you or any\nindividuals of your Representatives to whom Evaluation Material has been disclosed hereunder.\n(b) “Standstill Period” for purposes of this Agreement shall mean a period of one (1) year following the date of this Agreement.\n4. Non-Solicitation and No-Hire of Employees. During the Standstill Period, you agree that you will not, and you will direct individuals at\nyour Representatives not to on your behalf, directly or indirectly, hire or solicit any officer of the Company or other employee of the Company with\nwhom you or individuals at your Representatives acting at your direction or on your behalf, had contact in connection with your consideration of a\nTransaction or about whom you or individuals at your Representatives acting at your direction or on your behalf have received information in\nconnection with your consideration of a Transaction, other than a person who has not been an employee of the Company for at least 90 days and\nwhom neither you nor any of individuals at your Representatives acting at your direction or on your behalf, directly or indirectly solicited; provided,\nthat nothing in this Section 4 shall apply to any employee who contacts you on his or her own initiative or who responds to general mass solicitations\nof employment and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at\nsuch employees of the Company).\n5. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, on which you or your Representatives may rely as to the accuracy or completeness of the Evaluation\nMaterial for your or your Representatives’ purposes and that only those representations and warranties made by us in writing in a subsequent\ndefinitive agreement with you related to a Transaction, if any, shall have any legal effect. You agree that other than as may be set forth in such\ndefinitive agreement neither the Company nor its Representatives shall have\nany liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under federal or state securities laws,\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n5\n6. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement.\n7. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any reasonable fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive\nany requirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement may result in irreparable injury to the\nCompany.\n8. Compliance with Law.\n(a) You hereby confirm that you are aware and that individuals at your Representatives acting at your direction or on your behalf have been\nadvised (through policy manuals or otherwise) that the United States securities laws prohibit any person who has material non-public information\nabout a company from purchasing or selling securities of such company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person may purchase or sell such securities in reliance upon such information.\n(b) You hereby confirm that you and individuals at your affiliates who receive Evaluation Material from you under this Agreement, will (and\nyou and they will use commercially reasonable efforts to cause individuals at your respective Representatives acting at your direction or on your\nbehalf to) take action as reasonable and appropriate to prevent the use by you and them of any Evaluation Material about the Company in a way that\nwould reasonably be expected to violate any antitrust or federal or state securities laws in reliance upon such information.\n9. Miscellaneous.\n(a) Each party’s obligations under this Agreement expire upon the earlier of (i) 18 months after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n6\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n(e) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to any\nconflict of laws principles.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Southern District of New York or any New York State court sitting in New York City (the\n“Chosen Courts”), and solely in connection with claims arising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the\nChosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the\nChosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in\nany such action or proceeding shall be effective if notice is given in accordance with Section 9(g) of this Agreement. Each party hereto irrevocably\nwaives any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a\nfinal judgment in any lawsuit, action or other proceeding arising out of or relating to this Agreement brought in the courts referred to in the first\nsentence of this Section 9(f) shall be conclusive and binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction\nof which each of the parties is or may be subject, by suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nMModal Inc.\n9009 Carothers Parkway\nFranklin, Tennessee 37067\nAttention: General Counsel\nFacsimile: 866-796-5127\nTelephone: 615-261-1740\nEmail: mark.sullivan@mmodal.com\n7\nIf to you:\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18 Floor\nNew York, NY 10022\nAttention: Gregory A. Belinfanti\nManaging Director\nFacsimile: 212-277-1586\nTelephone: 212-277-1530\nEmail: gregory.a.belinfanti@oneequity.com\nWith a copy to:\nJPMorgan Chase & Co.—Legal Dept.\n270 Park Avenue, 38th Floor\nNew York, New York 10017\nAttention: Elizabeth De Guzman\nVice President & Assistant General Counsel\nTelephone: 212-270-7690\nFacsimile: 646-792-3771\nE-mail: elizabeth.deguzman@jpmorgan.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement\nby you without the prior written consent of the Company shall be void. The Company may assign this Agreement and/or the benefits hereunder to\none or more purchasers of all or a portion of the capital stock or assets of the Company.\n(i) This Agreement may only be amended by a separate writing signed by the Company and you expressly so amending this Agreement. Any\nprovision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the benefit\nthereof.\n(j) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall\nconstitute one and the same Agreement.\n[The remainder of this page is intentionally left blank.]\n8\nth\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nMMODAL INC.\nBy: /s/ Matthew Reid Jenkins\nName: Matthew Reid Jenkins\nTitle: SVP\nCONFIRMED AND AGREED TO:\nONE EQUITY PARTNERS IV, L.P.\nBy: OEP General Partner IV, L.P.,\nas General Partner\nBy: OEP Parent LLC,\nas General Partner\nBy: /s/ Gregory A. Belinfanti\nName: Gregory A. Belinfanti\nTitle: Managing Director
2b72f7fc2e04f6f08a77d4162e3be3eb.pdf	effective_date jurisdiction party term	EX-99.D.5 9 y31044exv99wdw5.htm EX-99.D.5: NON-DISCLOSURE AND CONFIDENTIALLY AGREEMENT\nExhibit (d)(5)\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July,\n2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus\nBiochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141\n(hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).\nRecitals\nWHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as\nthe “Business Purpose”); and\nWHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or\nboth Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and\nWHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the\nBusiness Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms\nof this Agreement.\nNOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) “Confidential Information” shall mean:\n(i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format,\nwhether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including,\nwithout limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports,\npricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning\ncurrent or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER,\nwhich relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology\nCarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any\nConfidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in\nthe public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be\nthereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter\nacquire.\n(ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without\nlimitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or\nmethods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is\n(a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of\nobtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant\ncircumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a\nproprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial,\ncustomer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel.\n(iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in\nconfidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of\nfirst disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such\nInformation.\n(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.\n(c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall\napply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein\nshall apply to the Parties’ parent, subsidiary and related companies.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party’s Confidential Information in strict confidence;\n(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information;\n(c) not to disclose such Confidential Information to third parties; and\nPage2of7\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the\nDisclosing Party.\n4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members,\nmanagers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who\nhave bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such\nrepresentatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the\nDisclosing Party.\n5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by\ncompetent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as\nshown by the Receiving Party’s written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\n(d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to\nConfidential Information furnished by the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the\nReceiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or\n(f) is disclosed with the prior, written consent of the Disclosing Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made.\nPage3of7\n7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing\nParty in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license\nunder any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or\nbecomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party\nagrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said\nPatent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the\nsubject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in\nbreach of this Agreement simply by acting in accordance with its terms and conditions.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at\nlaw or equity for such a breach.\n12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the\nEffective Date unless extended by the written consent of the Parties.\nPage4of7\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows:\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Randal J. Kirk\nFax: (540) 633-7979\nWith a copy to:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Marcus E. Smith, Esq.\nFax No.: (540) 633-7971\nIf to SHIRE:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Jeff Martini\nFax: (859) 282-2103\nPage5of7\nWith a copy to:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Kevin T. Anderson, Esq.\nFax: (859)282-1794\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by\nwritten agreement executed by the parties hereto.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is\nvalid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.\n16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in\naccordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding\nconflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District\nof the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements\nor transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in\nrespect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or\nhereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent\npermitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court.\nEach party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by\napplicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process\n(whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its\nproperty or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the\nprevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses.\n17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of\nsuch provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express\nPage6of7\nor implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision\nof this Agreement.\n18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the\nright to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any\nother contractual or legal obligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNew River Pharmaceuticals Inc.\nShire US Inc.\nBy:\n- s- Randal J. Kirk\nBy:\n- s- Jeffrey W. Martini\nRandal J. Kirk\nName: Jeffrey W. Martini\nChairman, President and CEO\nTitle: Director of Finance Officer\nShire US Inc.\nPage7of7\nL—000 000 8782\n(NEW RIVER PHARMACEUTICALS LOGO)\nJuly 13, 2004\nVia Email\nThomas Zulauf\nVice President, Business Development\nShire US Inc.\nRE: Non-Disclosure and Confidentiality Agreement dated as of July 16, 2002 (the “NCA”)\nDear Tom:\nI look forward to continuing the discussions regarding our companies. As these discussions will include confidential information from each party,\nwe can use the existing NCA with only a few minor changes:\n1) New River Pharmaceuticals Inc.’s street address has changed to 1881 Grove Avenue, Radford, Virginia 24141; and\n2) Given the nature of the projections and other confidential information to be discussed, the term of the NCA shall be extended from July 16,\n2007 to July 16, 2009 pursuant to Sections 12 and 14 of the NCA; and\n3) Other than these two amendments, the NCA shall remain unchanged and in full force and effect in accordance with its stated terms and\nconditions.\nIf these amendments are acceptable, please sign below to confirm your agreement and return a copy of the signed letter to my attention at 540-\n633-7939 (FAX).\nThank you, and I look forward to hearing from you.\nSincerely,\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nSEEN & AGREED TO:\nShire US Inc.\nBy:\n- s- Thomas Zulauf\nThomas Zulauf\nVP, Business Development\nDate: Aug 16, 2004\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nOctober 29, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 (the “NCA”)\nDear Ms. Kuhl:\nYou have informed us that Shire has conducted/is conducting a series of corporate reorganizations and restructurings that require additional\nparties to be added to the NCA for Shire’s consideration of New River Pharmaceutical Inc.’s product known as NRP104. Pursuant to Shire US\nInc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following ten related entities and the employees of those\nentities in Shire’s review of New River Pharmaceutical Inc.’s Confidential Information under the NCA. These ten related entities shall be deemed\nauthorized representatives (and not “affiliates” or “third parties”) of Shire US Inc. as provided in Section 4 of the NCA, and they shall be bound\nby, and subject to, the terms of the NCA as though they had been original parties to the NCA:\nShire Pharmaceutical Inc. (Delaware)\nShire Biochem Inc. (Canada)\nShire LLC (Kentucky)\nShire Pharmaceutical Development Inc. (Maryland)\nShire US Manufacturing Inc. (Maryland)\nShire Development Inc. (Delaware)\nShire Pharmaceutical Development ltd (Great Britain)\nShire Pharmaceutical Group plc (Great Britain)\nShire Regulatory Inc. (Delaware)\nShire IP Services Corporation (Nova Scotia)\nShire US Inc. shall be responsible for the conduct and compliance of these authorized representatives.\nShannon M. Kuhl, Esq.\nOctober 29, 2004\nPage 2\n(2) Except as expressly set forth in this letter amendment, the NCA shall remain unchanged and in full force and effect in accordance with its\nstated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- XXXXX\nTitle: Officer\nDate: 29 Oct 04\nL—000 000 8858\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 12, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated\nas of July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the “NCA”)\nDear Ms. Kuhl:\nPursuant to Shire US Inc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.’s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an “affiliate” or “third party”) of Shire US Inc. as provided in Section 4 of the NCA, and\nshe shall be bound by the terms of the NCA as though she had been an original “Party” in the NCA:\nSusan Hawlk\n4969 Thornwood Trace\nAcworth,GA 30102\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By her execution of this letter amendment, Susan Hawlk accepts and agrees to bound by the terms of the NCA as though she had been named\nas an original “Party” in the NCA, and she acknowledges that she shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, she confirms that she is authorized to enter into this letter agreement and that this letter agreement\nshall be binding upon her in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for\nreference.\nShannon M. Kuhl, Esq.\nNovember 12, 2004\nPage 2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- Illegible\nTitle: V.P. Bus. Development\nDate: Nov 15, 2004\nSEEN & AGREED TO:\n-s - Susan Hawlk\nSusan Hawlk\nDate: November 12, 2004\nL—000 000 8859\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 15, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the “NCA”)\nDear Ms. Kuhl:\nPursuant to Shire US Inc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.’s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an “affiliate” or “third party”) of Shire US Inc. as provided in Section 4 of the NCA, and\nhe shall be bound by the terms of the NCA as though he had been an original “Party” in the NCA:\nClinical Development Consultants Inc.\n7301 RR 620 N, Suite #155-195\nAustin, TX 78726\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By his execution of this letter amendment, Martin Garcia accepts and agrees to bound by the terms of the NCA as though he had been named\nas an original “Party” in the NCA, and he acknowledges that he shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, he confirms that he is authorized to enter into this letter agreement and that this letter agreement shall\nbe binding upon his in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for reference.\nShannon M. Kuhl, Esq.\nNovember 15, 2004\nPage2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf yon concur in these amendments to tbe NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n-s - XXXXX\nTitle: V. P. Business Development\nDate: 15 Nov 2004\nSEEN & AGREED TO:\nClinical Development Consultants, Inc.\n-s - Martin Garcia\nMartin Garcia, President\nDate: 15 NOV 04\n(NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nEric Smart\nAlbany Molecular Research, Inc.\n21 Corporate Circle\nAlbany, New York 12203\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the “Shire NCA”) and Non-Disclosure & Confidentiality Agreement between Albany Molecular Research, Inc.\nand New River Pharmaceuticals Inc. dated as of March 27, 2003 (the “Albany NCA”)\nDear Shannon and Eric:\nWe understand that Shire plans to conduct a January 4, 2005 audit of operations at Albany as they relate to New River’s product known as\nNRP104.\nBoth Shire and Albany have signed New River’s two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Albany NCA Section 4 requires New River’s prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Albany to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver ’s Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Albany hereby agree to the foregoing provisions and agree that any disclosures of Albany’s\nConfidential Information\n1861 PRATT DRIVE, SUITE 1090 BLACKSBURG, VA 24060\n540 953-3405 540 953-3407 FAX www.nrpharma.com\nDecember 16, 2004\nPage 2\nto Shire, or Shire’ Confidential Information to Albany, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\n-s - Suma Krishnan\nSuma Krishnan\nVice President, Product Development\nOn behalf of\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- XXXXX\nTitle: Associate General Counsel\nDate: 1/11/05\nSEEN & AGREED TO:\nALBANY MOLECULAR RESEARCH, INC.\nBy:\n- s- XXXXX\nTitle: Vice President, Business Development\nDate: 1/7/05\nAPROVED AS TO CONTENT\n1/6/05\nL—000 000 8904\n(NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nFrancis P. McCune\nDirector of Legal Services, Patheon\n2110 East Galbraith Road\nCincinnati, OH 45237\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the “Shire NCA”) and Non-Disclosure & Confidentiality Agreement between Patheon Inc. and New River\nPharmaceuticals Inc. dated as of May 31, 2003 (the “Patheon NCA”)\nDear Ms. Kuhl and Mr. McCune:\nWe understand that Shire plans to conduct a January 11, 2005 audit of operations at Patheon as they relate to New River’s product known as\nNRP104.\nBoth Shire and Patheon have signed New River’s two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Patheon NCA Section 4 requires New River’s prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Patheon to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver ’s Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Patheon hereby agree to the foregoing provisions and agree that any disclosures of Patheon’s\nConfidential Information\n1881 Grove Avenue\nRadford, Virginia 24141\nDecember 16, 2004\nPage 2\nto Shire, or Shire’ Confidential Information to Patheon, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\n-s - Krish S. Krishnan\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- XXXXX\nTitle: Senior Vice President, Associate General\nCounsel\nDate: 12/23/04\nSEEN & AGREED TO:\nPATHEON INC.\nBy:\n- s- Riccardo Trecroce\nRiccardo Trecroce,\nTitle: General Counsel & Senior Vice President\nCorporate Administration\nDate: January 3, 2005	EX-99.D.5 9 y31044exv99wdw5.htm EX-99.D.5: NON-DISCLOSURE AND CONFIDENTIALLY AGREEMENT\nExhibit (d)(5)\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nThais Non-Discrosure AND ConripENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July,\n2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus\nBiochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141\n(hereinafter “NEW RIVER™) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties™).\nRecitals\nWHEREAs the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as\nthe “Business Purpose”); and\nWHEREASs the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or\nboth Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and\nWHEREASs the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the\nBusiness Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms\nof this Agreement.\nNow, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) “Confidential Information” shall mean:\n(i) with respect to NEW RIVER, information as defined generally in section 1(a)(ii) following, as well as information, in any format,\nwhether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including,\nwithout limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports,\npricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning\ncurrent or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER,\nwhich relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology\nCarrierwave™, and processes and analytical techniques associated with these products/technologies and their successors. Where any\nConfidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in\nthe public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be\nthereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter\nacquire.\n(ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without\nlimitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or\nmethods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is\n(a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of\nobtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant\ncircumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a\nproprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial,\ncustomer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel.\n(iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in\nconfidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of\nfirst disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such\nInformation.\n(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.\n(c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall\napply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein\nshall apply to the Parties’ parent, subsidiary and related companies.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party’s Confidential Information in strict confidence;\n(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information;\n(c) not to disclose such Confidential Information to third parties; and\nPage 2 of 7\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the\nDisclosing Party.\n4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members,\nmanagers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who\nhave bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such\nrepresentatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the\nDisclosing Party.\n5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by\ncompetent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as\nshown by the Receiving Party’s written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\n(d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to\nConfidential Information furnished by the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the\nReceiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or\n(f) is disclosed with the prior, written consent of the Disclosing Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made.\nPage 3 of 7\n7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing\nParty in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license\nunder any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or\nbecomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party\nagrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said\nPatent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the\nsubject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in\nbreach of this Agreement simply by acting in accordance with its terms and conditions.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at\nlaw or equity for such a breach.\n12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the\nEffective Date unless extended by the written consent of the Parties.\nPage 4 of 7\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows:\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Randal J. Kirk\nFax: (540) 633-7979\nWith a copy to:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Marcus E. Smith, Esq.\nFax No.: (540) 633-7971\nIf to SHIRE:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Jeff Martini\nFax: (859) 282-2103\nPage 5 of 7\nWith a copy to:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Kevin T. Anderson, Esq.\nFax: (859)282-1794\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by\nwritten agreement executed by the parties hereto.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is\nvalid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.\n16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in\naccordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding\nconflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District\nof the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements\nor transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in\nrespect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or\nhereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent\npermitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court.\nEach party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by\napplicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process\n(whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its\nproperty or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the\nprevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses.\n \n17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of\nsuch provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express\nPage 6 of 7\nor implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision\nof this Agreement.\n18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the\nright to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any\nother contractual or legal obligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\nIn WiTnESs WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNew River Pharmaceuticals Inc. Shire US Inc.\nBy: | g.-s- Randal J. Kirk By: | g.-s- Jeffrey W. Martini\nRandal J. Kirk Name: Jeffrey W. Martini\nChairman, President and CEO Title: Director of Finance Officer\nShire US Inc.\nPage 7 of 7\nL—000 000 8782\n|# (NEW RIVER PHARMACEUTICALS LOGO)\nJuly 13, 2004\nVia Email\nThomas Zulauf\nVice President, Business Development\nShire US Inc.\nDear Tom:\nI look forward to continuing the discussions regarding our companies. As these discussions will include confidential information from each party,\nwe can use the existing NCA with only a few minor changes:\n1) New River Pharmaceuticals Inc.’s street address has changed to 1881 Grove Avenue, Radford, Virginia 24141; and\n2) Given the nature of the projections and other confidential information to be discussed, the term of the NCA shall be extended from July 16,\n2007 to July 16, 2009 pursuant to Sections 12 and 14 of the NCA; and\n3) Other than these two amendments, the NCA shall remain unchanged and in full force and effect in accordance with its stated terms and\nconditions.\nIf these amendments are acceptable, please sign below to confirm your agreement and return a copy of the signed letter to my attention at 540-\n633-7939 (FAX).\nThank you, and I look forward to hearing from you.\nSincerely,\ng.S Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nSEEN & AGREED TO:\nShire US Inc.\nBy: |p.-S- Thomas Zulauf\nThomas Zulauf\nVP, Business Development\nDate: Aug 16, 2004\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nOctober 29, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 (the “NCA”)\nDear Ms. Kuhl:\nYou have informed us that Shire has conducted/is conducting a series of corporate reorganizations and restructurings that require additional\nparties to be added to the NCA for Shire’s consideration of New River Pharmaceutical Inc.’s product known as NRP104. Pursuant to Shire US\nInc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following ten related entities and the employees of those\nentities in Shire’s review of New River Pharmaceutical Inc.’s Confidential Information under the NCA. These ten related entities shall be deemed\nauthorized representatives (and not “affiliates” or “third parties”) of Shire US Inc. as provided in Section 4 of the NCA, and they shall be bound\nby, and subject to, the terms of the NCA as though they had been original parties to the NCA:\nShire Pharmaceutical Inc. (Delaware)\nShire Biochem Inc. (Canada)\nShire LL.C (Kentucky)\nShire Pharmaceutical Development Inc. (Maryland)\nShire US Manufacturing Inc. (Maryland)\nShire Development Inc. (Delaware)\nShire Pharmaceutical Development ltd (Great Britain)\nShire Pharmaceutical Group plc (Great Britain)\nShire Regulatory Inc. (Delaware)\nShire IP Services Corporation (Nova Scotia)\nShire US Inc. shall be responsible for the conduct and compliance of these authorized representatives.\nShannon M. Kuhl, Esq.\nOctober 29, 2004\nPage 2\n(2) Except as expressly set forth in this letter amendment, the NCA shall remain unchanged and in full force and effect in accordance with its\nstated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\n25" Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: |p.-5- XXXXX\nTitle: Officer\nDate: 29 Oct 04\nL—000 000 8858\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 12, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE:  Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated\nas of July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the “NCA”)\nDear Ms. Kuhl:\nPursuant to Shire US Inc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.’s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an “affiliate” or “third party”) of Shire US Inc. as provided in Section 4 of the NCA, and\nshe shall be bound by the terms of the NCA as though she had been an original “Party” in the NCA:\nSusan Hawlk\n4969 Thornwood Trace\nAcworth,GA 30102\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By her execution of this letter amendment, Susan Hawlk accepts and agrees to bound by the terms of the NCA as though she had been named\nas an original “Party” in the NCA, and she acknowledges that she shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, she confirms that she is authorized to enter into this letter agreement and that this letter agreement\nshall be binding upon her in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for\nreference.\nShannon M. Kuhl, Esq.\nNovember 12, 2004\nPage 2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\n- '-s- Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: |p-s-lllegible\nTitle: V.P. Bus. Development\nDate: Nov 15, 2004\nSEEN & AGREED TO:\ne '-s- Susan Hawlk\nSusan Hawlk\nDate: November 12, 2004\nL—000 000 8859\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 15, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the “NCA”)\nDear Ms. Kuhl:\nPursuant to Shire US Inc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.’s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an “affiliate” or “third party”) of Shire US Inc. as provided in Section 4 of the NCA, and\nhe shall be bound by the terms of the NCA as though he had been an original “Party” in the NCA:\nClinical Development Consultants Inc.\n7301 RR 620 N, Suite #155-195\nAustin, TX 78726\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By his execution of this letter amendment, Martin Garcia accepts and agrees to bound by the terms of the NCA as though he had been named\nas an original “Party” in the NCA, and he acknowledges that he shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, he confirms that he is authorized to enter into this letter agreement and that this letter agreement shall\nbe binding upon his in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for reference.\nShannon M. Kuhl, Esq.\nNovember 15, 2004\nPage2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf yon concur in these amendments to tbe NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely\n- '-s- Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: |p.s- XXXXX\nTitle: V. P. Business Development\nDate: 15 Nov 2004\nSEEN & AGREED TO:\nClinical Development Consultants, Inc.\ne '-s- Martin Garcia\nMartin Garcia, President\nDate: 15 NOV 04\n|# . (NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nEric Smart\nAlbany Molecular Research, Inc.\n21 Corporate Circle\nAlbany, New York 12203\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the “Shire NCA”) and Non-Disclosure & Confidentiality Agreement between Albany Molecular Research, Inc.\nand New River Pharmaceuticals Inc. dated as of March 27, 2003 (the “Albany NCA”)\nDear Shannon and Eric:\nWe understand that Shire plans to conduct a January 4, 2005 audit of operations at Albany as they relate to New River’s product known as\nNRP104.\nBoth Shire and Albany have signed New River’s two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Albany NCA Section 4 requires New River’s prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Albany to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver’s Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Albany hereby agree to the foregoing provisions and agree that any disclosures of Albany’s\nConfidential Information\n1861 PRATT DRIVE, SUITE 1090 BLACKSBURG, VA 24060\n540 953-3405 540 953-3407 rax www.nrpharma.com\nDecember 16, 2004\nPage 2\nto Shire, or Shire’ Confidential Information to Albany, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\nP S Suma Krishnan\nSuma Krishnan\nVice President, Product Development\nOn behalf of\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: |p.-s- XXXXX\nTitle: Associate General Counsel\nDate: 1/11/05\nSEEN & AGREED TO:\nALBANY MOLECULAR RESEARCH, INC.\nBy: |p.-5- XXXXX\nTitle: Vice President, Business Development\nDate: 1/7/05\nAPROVED AS TO CONTENT\n1/6/05\nL—000 000 8904\n|# . (NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nFrancis P. McCune\nDirector of Legal Services, Patheon\n2110 East Galbraith Road\nCincinnati, OH 45237\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the “Shire NCA”) and Non-Disclosure & Confidentiality Agreement between Patheon Inc. and New River\nPharmaceuticals Inc. dated as of May 31, 2003 (the “Patheon NCA”)\nDear Ms. Kuhl and Mr. McCune:\nWe understand that Shire plans to conduct a January 11, 2005 audit of operations at Patheon as they relate to New River’s product known as\nNRP104.\nBoth Shire and Patheon have signed New River’s two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Patheon NCA Section 4 requires New River’s prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Patheon to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver’s Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Patheon hereby agree to the foregoing provisions and agree that any disclosures of Patheon’s\nConfidential Information\n1881 Grove Avenue\nRadford, Virginia 24141\nDecember 16, 2004\nPage 2\nto Shire, or Shire’ Confidential Information to Patheon, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\nPSS Krish S. Krishnan\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: g oS- XXXXX\nTitle: Senior Vice President, Associate General\nCounsel\nDate: 12/23/04\nSEEN & AGREED TO:\nPATHEON INC.\nBy: s Riccardo Trecroce\nRiccardo Trecroce,\nTitle: General Counsel & Senior Vice President\nCorporate Administration\nDate: January 3, 2005	EX-99.D.5 9 y31044exv99wdw5.htm EX-99.D.5: NON-DISCLOSURE AND CONFIDENTIALLY AGREEMENT\nExhibit (d)(5)\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIs NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the "Agreement") is made and entered into as of the 16th day of July,\n2002 (hereinafter "Effective Date"), by and between Shire US Inc. (hereinafter "SHIRE"), and New River Pharmaceuticals Inc. (formerly, Lotus\nBiochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141\n(hereinafter "NEW RIVER") (each individually hereinafter referred to as a "Party" and collectively referred to as "Parties").\nRecitals\nWHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as\nthe "Business Purpose"); and\nWHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or\nboth Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and\nWHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the\nBusiness Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms\nof this Agreement.\nNow, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) "Confidential Information" shall mean:\n(i) with respect to NEW RIVER, information as defined generally in section 1(a)(ii) following, as well as information, in any format,\nwhether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including,\nwithout limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports,\npricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning\ncurrent or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER,\nwhich relates to NEW RIVER's proprietary polypeptide and polymer conjugate chemistry and NEW RIVER's platform technology\nCarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any\nConfidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in\nthe public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE'S possession or to be\nthereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter\nacquire.\n(ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without\nlimitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services\nor\nmethods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party's business and is\n(a)\nproprietary\nto,\nabout,\nor\ncreated\nby\nDisclosing\nParty;\n(b)\ngives\nDisclosing\nParty\nsome\ncompetitive\nbusiness\nadvantage\nor\nthe\nopportunity\nof\nobtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant\ncircumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a\nproprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party's consent; including business, financial,\ncustomer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel.\n(iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in\nconfidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of\nfirst disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such\nInformation.\n(b) "Disclosing Party" shall mean the Party disclosing Confidential Information.\n(c) "Receiving Party" shall mean the Party receiving disclosure of the Confidential Information.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall\napply to Confidential Information of the Parties' parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein\nshall apply to the Parties' parent, subsidiary and related companies.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party's Confidential Information in strict confidence;\n(b) to exercise at least the same care in protecting the other Party's Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information;\n(c) not to disclose such Confidential Information to third parties; and\nPage 2 of 7\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the\nDisclosing Party.\n4. Disclosure to Representatives. Each Party may disclose the other Party's Confidential Information to its directors, officers, members,\nmanagers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement)\nwho\nhave bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such\nrepresentatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of\nthe\nDisclosing Party.\n5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by\ncompetent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as\nshown by the Receiving Party's written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\n(d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to\nConfidential Information furnished by the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the\nReceiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or\n(f) is disclosed with the prior, written consent of the Disclosing Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party's\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party's consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made.\nPage 3 of 7\n7. Return of Confidential Information. Upon the Disclosing Party's request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party's Confidential Information and all copies thereof.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party's Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing\nParty in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights\nto\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party's Confidential Information except as specified in this Agreement\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license\nunder any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or\nbecomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party\nagrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said\nPatent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the\nsubject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in\nbreach of this Agreement simply by acting in accordance with its terms and conditions.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party's Confidential information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause\nirreparable\nharm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available\nat\nlaw or equity for such a breach.\n12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the\nEffective Date unless extended by the written consent of the Parties.\nPage 4 of 7\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows:\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Randal J. Kirk\nFax: (540) 633-7979\nWith a copy to:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Marcus E. Smith, Esq.\nFax No.: (540) 633-7971\nIf to SHIRE:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Jeff Martini\nFax: (859) 282-2103\nPage 5 of 7\nWith a copy to:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Kevin T. Anderson, Esq.\nFax: (859)282-1794\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by\nwritten agreement executed by the parties hereto.\n15. Severability.. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is\nvalid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.\n16. Governing Law; Attorneys' Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced\nin\naccordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding\nconflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District\nof the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements\nor transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in\nrespect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or\nhereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent\npermitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court.\nEach party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by\napplicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process\n(whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its\nproperty or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the\nprevailing party shall be entitled to recover its reasonable attorneys' fees and expenses.\n17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of\nsuch provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express\nPage 6 of 7\nor implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision\nof this Agreement.\n18. Binding Authority.. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the\nright to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any\nother contractual or legal obligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNew River Pharmaceuticals Inc.\nShire US Inc.\nBy:\nRandal J. Kirk\nBy:\nJeffrey W. Martini\nRandal J. Kirk\nName: Jeffrey W. Martini\nChairman, President and CEO\nTitle: Director of Finance Officer\nShire US Inc.\nPage 7 of 7\nL-000 000 8782\n(NEW RIVER PHARMACEUTICALS LOGO)\nJuly 13, 2004\nVia Email\nThomas Zulauf\nVice President, Business Development\nShire US Inc.\nRE: Non-Disclosure and Confidentiality. Agreement dated as of July. 16,2002 (the "NCA")\nDear Tom:\nI look forward to continuing the discussions regarding our companies. As these discussions will include confidential information from each party,\nwe can use the existing NCA with only a few minor changes:\n1) New River Pharmaceuticals Inc.'s street address has changed to 1881 Grove Avenue, Radford, Virginia 24141; and\n2)\nGiven the nature of the projections and other confidential information to be discussed, the term of the NCA shall be extended from July 16,\n2007 to July 16, 2009 pursuant to Sections 12 and 14 of the NCA; and\n3) Other than these two amendments, the NCA shall remain unchanged and in full force and effect in accordance with its stated terms and\nconditions.\nIf these amendments are acceptable, please sign below to confirm your agreement and return a copy of the signed letter to my attention at 540-\n633-7939 (FAX).\nThank you, and I look forward to hearing from you.\nSincerely,\nRandal J. Kirk\nRandal J. Kirk\nPresident & CEO\nSEEN & AGREED TO:\nShire US Inc.\nBy:\nThomas Zulauf\nThomas Zulauf\nVP, Business Development\nDate: Aug 16, 2004\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nOctober 29, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 (the "NCA")\nDear Ms. Kuhl:\nYou have informed us that Shire has conducted/is conducting a series of corporate reorganizations and restructurings that require additional\nparties to be added to the NCA for Shire's consideration of New River Pharmaceutical Inc.'s product known as NRP104. Pursuant to Shire US\nInc.'s request, we hereby amend and supplement the NCA as follows:\n(1)\nThe Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following ten related entities and the employees of those\nentities in Shire's review of New River Pharmaceutical Inc.'s Confidential Information under the NCA. These ten related entities shall be deemed\nauthorized representatives (and not "affiliates" or "third parties") of Shire US Inc. as provided in Section 4 of the NCA, and they shall be bound\nby, and subject to, the terms of the NCA as though they had been original parties to the NCA:\nShire Pharmaceutical Inc. (Delaware)\nShire Biochem Inc. (Canada)\nShire LLC (Kentucky)\nShire Pharmaceutical Development Inc. (Maryland)\nShire US Manufacturing Inc. (Maryland)\nShire Development Inc. (Delaware)\nShire Pharmaceutical Development Itd (Great Britain)\nShire Pharmaceutical Group plc (Great Britain)\nShire Regulatory Inc. (Delaware)\nShire IP Services Corporation (Nova Scotia)\nShire US Inc. shall be responsible for the conduct and compliance of these authorized representatives.\nShannon M. Kuhl, Esq.\nOctober 29, 2004\nPage 2\n(2) Except as expressly set forth in this letter amendment, the NCA shall remain unchanged and in full force and effect in accordance with its\nstated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\nRandal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\nXXXXX\nTitle: Officer\nDate: 29 Oct 04\nL-000 000 8858\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 12, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE:\nAmendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated\nas of July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the "NCA")\nDear Ms. Kuhl:\nPursuant to Shire US Inc.'s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.'s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an "affiliate" or "third party") of Shire US Inc. as provided in Section 4 of the NCA, and\nshe shall be bound by the terms of the NCA as though she had been an original "Party" in the NCA:\nSusan Hawlk\n4969 Thornwood Trace\nAcworth,G GA 30102\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By her execution of this letter amendment, Susan Hawlk accepts and agrees to bound by the terms of the NCA as though she had been named\nas an original "Party" in the NCA, and she acknowledges that she shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, she confirms that she is authorized to enter into this letter agreement and that this letter agreement\nshall be binding upon her in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for\nreference.\nShannon M. Kuhl, Esq.\nNovember 12, 2004\nPage 2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\nRandal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: Illegible\nTitle: V.P. Bus. Development\nDate: Nov 15, 2004\nSEEN & AGREED TO:\nSusan Hawlk\nSusan Hawlk\nDate: November 12, 2004\nL-000 000 8859\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 15, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the "NCA")\nDear Ms. Kuhl:\nPursuant to Shire US Inc.'s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.'s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an "affiliate" or "third party") of Shire US Inc. as provided in Section 4 of the NCA, and\nhe shall be bound by the terms of the NCA as though he had been an original "Party" in the NCA:\nClinical Development Consultants Inc.\n7301 RR 620 N, Suite #155-195\nAustin, TX 78726\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By his execution of this letter amendment, Martin Garcia accepts and agrees to bound by the terms of the NCA as though he had been named\nas an original "Party" in the NCA, and he acknowledges that he shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, he confirms that he is authorized to enter into this letter agreement and that this letter agreement shall\nbe binding upon his in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for reference.\nShannon M. Kuhl, Esq.\nNovember 15, 2004\nPage2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf yon concur in these amendments to tbe NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely\nRandal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n-S- XXXXX\nTitle: V. P. Business Development\nDate: 15 Nov 2004\nSEEN & AGREED TO:\nClinical Development Consultants, Inc.\nMartin Garcia\nMartin Garcia, President\nDate: 15 NOV 04\n(NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nEric Smart\nAlbany Molecular Research, Inc.\n21 Corporate Circle\nAlbany, New York 12203\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the "Shire NCA") and Non-Disclosure & Confidentiality Agreement between Albany Molecular Research, Inc.\nand New River Pharmaceuticals Inc. dated as of March 27, 2003 (the "Albany NCA")\nDear Shannon and Eric:\nWe understand that Shire plans to conduct a January 4, 2005 audit of operations at Albany as they relate to New River's product known\nas\nNRP 104.\nBoth Shire and Albany have signed New River's two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Albany NCA Section 4 requires New River's prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Albany to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided however, that the Confidential Information regarding NRP104 shall remain New\nRiver's Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Albany hereby agree to the foregoing provisions and agree that any disclosures of Albany's\nConfidential Information\n1861 PRATT DRIVE, SUITE 1090 BLACKSBURG, VA 24060\n540 953-3405 540 953-3407 FAX www.nrpharma.com\nDecember 16, 2004\nPage 2\nto Shire, or Shire' Confidential Information to Albany, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\nSuma Krishnan\nSuma Krishnan\nVice President, Product Development\nOn behalf of\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: XXXXX\nTitle: Associate General Counsel\nDate: 1/11/05\nSEEN & AGREED TO:\nALBANY MOLECULAR RESEARCH, INC.\nBy: XXXXX\nTitle: Vice President, Business Development\nDate: 1/7/05\nAPROVED AS TO CONTENT\n1/6/05\nL-000 000 8904\n(NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nFrancis P. McCune\nDirector of Legal Services, Patheon\n2110 East Galbraith Road\nCincinnati, OH 45237\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the "Shire NCA") and Non-Disclosure & Confidentiality Agreement between Patheon Inc. and New River\nPharmaceuticals Inc. dated as of May 31, 2003 (the "Patheon NCA")\nDear Ms. Kuhl and Mr. McCune:\nWe understand that Shire plans to conduct a January 11, 2005 audit of operations at Patheon as they relate to New River's product known as\nNRP104.\nBoth Shire and Patheon have signed New River's two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Patheon NCA Section 4 requires New River's prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Patheon to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver's Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Patheon hereby agree to the foregoing provisions and agree that any disclosures of Patheon's\nConfidential Information\n1881 Grove Avenue\nRadford, Virginia 24141\nDecember 16, 2004\nPage 2\nto Shire, or Shire' Confidential Information to Patheon, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\nKrish S. Krishnan\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n-s- XXXXX\nTitle: Senior Vice President, Associate General\nCounsel\nDate: 12/23/04\nSEEN & AGREED TO:\nPATHEON INC.\nBy:\n-s- Riccardo Trecroce\nRiccardo Trecroce,\nTitle: General Counsel & Senior Vice President\nCorporate Administration\nDate: January 3, 2005	EX-99.D.5 9 y31044exv99wdw5.htm EX-99.D.5: NON-DISCLOSURE AND CONFIDENTIALLY AGREEMENT\nExhibit (d)(5)\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July,\n2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus\nBiochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141\n(hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).\nRecitals\nWHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as\nthe “Business Purpose”); and\nWHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or\nboth Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and\nWHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the\nBusiness Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms\nof this Agreement.\nNOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) “Confidential Information” shall mean:\n(i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format,\nwhether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including,\nwithout limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports,\npricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning\ncurrent or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER,\nwhich relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology\nCarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any\nConfidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in\nthe public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be\nthereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter\nacquire.\n(ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without\nlimitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or\nmethods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is\n(a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of\nobtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant\ncircumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a\nproprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial,\ncustomer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel.\n(iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in\nconfidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of\nfirst disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such\nInformation.\n(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.\n(c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall\napply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein\nshall apply to the Parties’ parent, subsidiary and related companies.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party’s Confidential Information in strict confidence;\n(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information;\n(c) not to disclose such Confidential Information to third parties; and\nPage2of7\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the\nDisclosing Party.\n4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members,\nmanagers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who\nhave bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such\nrepresentatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the\nDisclosing Party.\n5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by\ncompetent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as\nshown by the Receiving Party’s written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\n(d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to\nConfidential Information furnished by the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the\nReceiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or\n(f) is disclosed with the prior, written consent of the Disclosing Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made.\nPage3of7\n7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing\nParty in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license\nunder any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or\nbecomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party\nagrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said\nPatent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the\nsubject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in\nbreach of this Agreement simply by acting in accordance with its terms and conditions.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at\nlaw or equity for such a breach.\n12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the\nEffective Date unless extended by the written consent of the Parties.\nPage4of7\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows:\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Randal J. Kirk\nFax: (540) 633-7979\nWith a copy to:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Marcus E. Smith, Esq.\nFax No.: (540) 633-7971\nIf to SHIRE:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Jeff Martini\nFax: (859) 282-2103\nPage5of7\nWith a copy to:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Kevin T. Anderson, Esq.\nFax: (859)282-1794\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by\nwritten agreement executed by the parties hereto.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is\nvalid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.\n16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in\naccordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding\nconflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District\nof the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements\nor transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in\nrespect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or\nhereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent\npermitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court.\nEach party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by\napplicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process\n(whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its\nproperty or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the\nprevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses.\n17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of\nsuch provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express\nPage6of7\nor implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision\nof this Agreement.\n18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the\nright to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any\nother contractual or legal obligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNew River Pharmaceuticals Inc.\nShire US Inc.\nBy:\n- s- Randal J. Kirk\nBy:\n- s- Jeffrey W. Martini\nRandal J. Kirk\nName: Jeffrey W. Martini\nChairman, President and CEO\nTitle: Director of Finance Officer\nShire US Inc.\nPage7of7\nL—000 000 8782\n(NEW RIVER PHARMACEUTICALS LOGO)\nJuly 13, 2004\nVia Email\nThomas Zulauf\nVice President, Business Development\nShire US Inc.\nRE: Non-Disclosure and Confidentiality Agreement dated as of July 16, 2002 (the “NCA”)\nDear Tom:\nI look forward to continuing the discussions regarding our companies. As these discussions will include confidential information from each party,\nwe can use the existing NCA with only a few minor changes:\n1) New River Pharmaceuticals Inc.’s street address has changed to 1881 Grove Avenue, Radford, Virginia 24141; and\n2) Given the nature of the projections and other confidential information to be discussed, the term of the NCA shall be extended from July 16,\n2007 to July 16, 2009 pursuant to Sections 12 and 14 of the NCA; and\n3) Other than these two amendments, the NCA shall remain unchanged and in full force and effect in accordance with its stated terms and\nconditions.\nIf these amendments are acceptable, please sign below to confirm your agreement and return a copy of the signed letter to my attention at 540-\n633-7939 (FAX).\nThank you, and I look forward to hearing from you.\nSincerely,\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nSEEN & AGREED TO:\nShire US Inc.\nBy:\n- s- Thomas Zulauf\nThomas Zulauf\nVP, Business Development\nDate: Aug 16, 2004\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nOctober 29, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 (the “NCA”)\nDear Ms. Kuhl:\nYou have informed us that Shire has conducted/is conducting a series of corporate reorganizations and restructurings that require additional\nparties to be added to the NCA for Shire’s consideration of New River Pharmaceutical Inc.’s product known as NRP104. Pursuant to Shire US\nInc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following ten related entities and the employees of those\nentities in Shire’s review of New River Pharmaceutical Inc.’s Confidential Information under the NCA. These ten related entities shall be deemed\nauthorized representatives (and not “affiliates” or “third parties”) of Shire US Inc. as provided in Section 4 of the NCA, and they shall be bound\nby, and subject to, the terms of the NCA as though they had been original parties to the NCA:\nShire Pharmaceutical Inc. (Delaware)\nShire Biochem Inc. (Canada)\nShire LLC (Kentucky)\nShire Pharmaceutical Development Inc. (Maryland)\nShire US Manufacturing Inc. (Maryland)\nShire Development Inc. (Delaware)\nShire Pharmaceutical Development ltd (Great Britain)\nShire Pharmaceutical Group plc (Great Britain)\nShire Regulatory Inc. (Delaware)\nShire IP Services Corporation (Nova Scotia)\nShire US Inc. shall be responsible for the conduct and compliance of these authorized representatives.\nShannon M. Kuhl, Esq.\nOctober 29, 2004\nPage 2\n(2) Except as expressly set forth in this letter amendment, the NCA shall remain unchanged and in full force and effect in accordance with its\nstated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- XXXXX\nTitle: Officer\nDate: 29 Oct 04\nL—000 000 8858\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 12, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated\nas of July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the “NCA”)\nDear Ms. Kuhl:\nPursuant to Shire US Inc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.’s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an “affiliate” or “third party”) of Shire US Inc. as provided in Section 4 of the NCA, and\nshe shall be bound by the terms of the NCA as though she had been an original “Party” in the NCA:\nSusan Hawlk\n4969 Thornwood Trace\nAcworth,GA 30102\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By her execution of this letter amendment, Susan Hawlk accepts and agrees to bound by the terms of the NCA as though she had been named\nas an original “Party” in the NCA, and she acknowledges that she shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, she confirms that she is authorized to enter into this letter agreement and that this letter agreement\nshall be binding upon her in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for\nreference.\nShannon M. Kuhl, Esq.\nNovember 12, 2004\nPage 2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- Illegible\nTitle: V.P. Bus. Development\nDate: Nov 15, 2004\nSEEN & AGREED TO:\n-s - Susan Hawlk\nSusan Hawlk\nDate: November 12, 2004\nL—000 000 8859\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 15, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the “NCA”)\nDear Ms. Kuhl:\nPursuant to Shire US Inc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.’s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an “affiliate” or “third party”) of Shire US Inc. as provided in Section 4 of the NCA, and\nhe shall be bound by the terms of the NCA as though he had been an original “Party” in the NCA:\nClinical Development Consultants Inc.\n7301 RR 620 N, Suite #155-195\nAustin, TX 78726\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By his execution of this letter amendment, Martin Garcia accepts and agrees to bound by the terms of the NCA as though he had been named\nas an original “Party” in the NCA, and he acknowledges that he shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, he confirms that he is authorized to enter into this letter agreement and that this letter agreement shall\nbe binding upon his in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for reference.\nShannon M. Kuhl, Esq.\nNovember 15, 2004\nPage2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf yon concur in these amendments to tbe NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n-s - XXXXX\nTitle: V. P. Business Development\nDate: 15 Nov 2004\nSEEN & AGREED TO:\nClinical Development Consultants, Inc.\n-s - Martin Garcia\nMartin Garcia, President\nDate: 15 NOV 04\n(NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nEric Smart\nAlbany Molecular Research, Inc.\n21 Corporate Circle\nAlbany, New York 12203\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the “Shire NCA”) and Non-Disclosure & Confidentiality Agreement between Albany Molecular Research, Inc.\nand New River Pharmaceuticals Inc. dated as of March 27, 2003 (the “Albany NCA”)\nDear Shannon and Eric:\nWe understand that Shire plans to conduct a January 4, 2005 audit of operations at Albany as they relate to New River’s product known as\nNRP104.\nBoth Shire and Albany have signed New River’s two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Albany NCA Section 4 requires New River’s prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Albany to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver ’s Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Albany hereby agree to the foregoing provisions and agree that any disclosures of Albany’s\nConfidential Information\n1861 PRATT DRIVE, SUITE 1090 BLACKSBURG, VA 24060\n540 953-3405 540 953-3407 FAX www.nrpharma.com\nDecember 16, 2004\nPage 2\nto Shire, or Shire’ Confidential Information to Albany, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\n-s - Suma Krishnan\nSuma Krishnan\nVice President, Product Development\nOn behalf of\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- XXXXX\nTitle: Associate General Counsel\nDate: 1/11/05\nSEEN & AGREED TO:\nALBANY MOLECULAR RESEARCH, INC.\nBy:\n- s- XXXXX\nTitle: Vice President, Business Development\nDate: 1/7/05\nAPROVED AS TO CONTENT\n1/6/05\nL—000 000 8904\n(NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nFrancis P. McCune\nDirector of Legal Services, Patheon\n2110 East Galbraith Road\nCincinnati, OH 45237\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the “Shire NCA”) and Non-Disclosure & Confidentiality Agreement between Patheon Inc. and New River\nPharmaceuticals Inc. dated as of May 31, 2003 (the “Patheon NCA”)\nDear Ms. Kuhl and Mr. McCune:\nWe understand that Shire plans to conduct a January 11, 2005 audit of operations at Patheon as they relate to New River’s product known as\nNRP104.\nBoth Shire and Patheon have signed New River’s two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Patheon NCA Section 4 requires New River’s prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Patheon to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver ’s Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Patheon hereby agree to the foregoing provisions and agree that any disclosures of Patheon’s\nConfidential Information\n1881 Grove Avenue\nRadford, Virginia 24141\nDecember 16, 2004\nPage 2\nto Shire, or Shire’ Confidential Information to Patheon, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\n-s - Krish S. Krishnan\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- XXXXX\nTitle: Senior Vice President, Associate General\nCounsel\nDate: 12/23/04\nSEEN & AGREED TO:\nPATHEON INC.\nBy:\n- s- Riccardo Trecroce\nRiccardo Trecroce,\nTitle: General Counsel & Senior Vice President\nCorporate Administration\nDate: January 3, 2005
2ce3bbe2d6836d8b023c55883294fa63.pdf	effective_date jurisdiction party term	EX-10.29 25 d238359dex1029.htm EX-10.29\nExhibit 10.29\nLOGO\n«First_Name» «Last_Name»\n«Street»\n«City», «State» «Zip»\nRe: Confidentiality Agreement\nDear «First_Name»:\nAs a key employee of the Schneider organization, and as a member of the Enterprise Leadership Circle, you have and will have access to\ncertain “Confidential Information” and “Trade Secrets,” which are defined below. Such Confidential Information and Trade Secrets have been\ndeveloped and maintained through the investment of considerable time, effort and expense by Schneider and represent significant corporate\nassets of Schneider. Such Confidential Information must be subject to reasonable safeguards and protections such as protections against its\nunauthorized or improper use or disclosure. This letter represents an important aspect of protection of Confidential Information as set forth in this\nConfidentiality Agreement (“Agreement”).\nIt is the intent of the parties that this letter, in its entirety (including its introductory and closing paragraphs), upon being signed by you,\nconstitute a legally binding contract. Simply to assist the reader, certain of the paragraphs are numbered and titled. For ease of reference,\n“Schneider” or the pronouns “we” or “us” as used throughout this Agreement refer to Schneider National, Inc. and its subsidiaries and affiliates,\nwhile you, as addressee of this letter, are referred to with the pronouns “you” or “your”, as appropriate.\nIn consideration of your continued employment by Schneider, the compensation and benefits incident to your employment with Schneider,\nand, if applicable, Schneider ’s granting to you participation or continued participation in the Schneider National, Inc. 2017 Omnibus Incentive\nPlan, which is hereinafter referred to as the “Incentive Plan,”, you agree as follows:\n1. Confidential Information, Trade Secrets, and Privacy Restricted Information.\na. During Employment. While employed by Schneider, you will (i) hold in trust and confidence all Confidential Information, Trade\nSecrets, and Privacy Restricted Information (collectively, “Protected Information”) that come into your possession; (ii) not disclose,\ndirectly or indirectly, or replicate any Protected Information to any person outside of Schneider, except to third parties in the ordinary\ncourse of your duties who have a legal obligation to maintain the confidentiality of such information (such as Schneider’s auditors\nand attorneys) or as otherwise directed to do so in writing by an Officer of Schneider or its General Counsel; (iii) not disclose,\ndirectly or indirectly, any Protected Information to any Schneider associate, except upon a “need to know” basis to an associate who\nhas also agreed to this or a similar confidentiality agreement; and (iv)\n«First_Name» «Last_Name»\nPage 2\naccess and use Protected Information only in furtherance of your job responsibilities and for Schneider’s benefit and not for your own\npersonal use or advantage. During your employment, you agree to use utmost care to ensure that all Protected Information is\nmaintained in a confidential manner by using appropriate security at all times, including using screen protection on monitors,\nnon-sharing of user names and passwords, securing of hard copies of all Protected Information, and all other measures necessary to\nmaintain the confidentiality of all Protected Information. You agree that it is your responsibility to maintain your workspace in such a\nway as to minimize the risk of observation of Protected Information through you by unauthorized persons. During your employment\nwith Schneider, you agree to refrain from unauthorized duplication, documentation, or reproduction of Protected Information through\nany means. When your employment with Schneider ends, regardless of the reason, you will promptly return all Protected Information\nin your possession or under your control to Schneider, including any copies, documentation, or reproductions thereof and agree to\ncertify the same to Schneider if requested.\nb. Trade Secrets Post-Employment. After your employment with Schneider, you agree to not directly or indirectly use or disclose any\nof Schneider’s Trade Secrets. Nothing in this agreement shall limit or supersede any common law, statutory or other protections of\ntrade secrets where such protections provide Schneider with greater rights or protections for a longer duration than provided in this\nagreement.\nc. Confidential Information Post-Employment. For a period of eighteen (18) months after your employment with Schneider, you will\nnot directly or indirectly use or disclose any of Schneider’s Confidential Information.\nd. Privacy Restricted Information Post-Employment. After your employment with Schneider ends, for any reason, you agree to not\ndirectly or indirectly use or disclose any Privacy Restricted Information for so long as such information remains protected by law.\ne. Developments. While employed by Schneider, you will promptly disclose all Developments to your Schneider Human Resource\nBusiness Partner (HRBP) and, to the extent not owned by Schneider, you hereby assign all right, title and interest in and to all such\nDevelopments to Schneider. At any time during or after your employment with Schneider, you will promptly execute all documents\nand do all acts and things that Schneider may reasonably require to perfect, defend and enforce its patent, copyright, trademark, trade\nsecret and other intellectual or proprietary rights to such Developments throughout the world, and you hereby irrevocably designate\nand appoint Schneider and its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf to\ndo any of the foregoing with the same legal force and effect as if executed by you.\nf. Exceptions. Notwithstanding anything to the contrary, this Agreement is not intended to, and shall be interpreted in a manner that\ndoes not, limit or restrict you from exercising any legally protected whistleblower rights (including pursuant to Rule 21F under the\nSecurities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002), or\n«First_Name» «Last_Name»\nPage 3\nfrom exercising your rights to communicate with a government agency as provided for, protected under or warranted by applicable\nlaw. Schneider does not require prior notification or prior approval of any such whistleblowing report. Furthermore, for the avoidance\nof doubt, pursuant to the federal Defend Trade Secrets Act of 2016, you shall not be held criminally or civilly liable under any federal\nor state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a federal, state, or local government\nofficial, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected\nviolation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under\nseal.\n2. Confidential Information of Others. You certify that you have not disclosed or used, and will not disclose or use, during your\nemployment with Schneider, any confidential information that you acquired as a result of any previous employment or under a contractual\nobligation of confidentiality or secrecy before you became an Associate of Schneider.\n3. No Guarantee of Employment. You acknowledge that, as a Schneider Associate, you are an “at will” employee, meaning either you or\nSchneider can terminate your employment at any time with or without cause. No communications, oral or written, by Schneider or any of\nits agents can change the fact that this agreement is not an employment contract and does not change your at-will status. This agreement\napplies during and after your employment, and this agreement is enforceable regardless of whether your separation is voluntary.\n4. Equitable Remedies and Forfeiture. You acknowledge that if you breach this agreement, Schneider’s damages will or may be difficult to\nascertain, money damages may not be adequate, and Schneider may incur irreparable harm and continuing damage. Accordingly, Schneider\nwill be entitled to any and all equitable remedies for breach of this agreement, including, without limitation, injunctive relief, as well as any\nmoney damages or other legal relief to which Schneider may be entitled. Without limiting any clawback and/or forfeiture remedies\navailable to Schneider under your award agreements or the Incentive Plan, if you breach any provisions of this Agreement or of your\nEmployee Non-Compete and No-Solicitation Agreement, with Schneider, all deferrals of Incentive Plan amounts with respect to you, as\nwell as appreciation, earnings and gains related thereto, credited under the plan to you shall be forfeited and your rights, payments and\nbenefits with respect to all deferrals/awards shall be subject to reduction, cancellation, forfeiture or recoupment. You agree that, to the\nextent this Agreement is inconsistent with any other Non Disclosure and Development Agreement you have signed, this Agreement\nsupersedes any such other agreement and is controlling.\n5. Miscellaneous.\na. Applicable Law; Jurisdiction. This agreement shall be governed by and enforced under the laws of the state of Wisconsin,\n(excluding conflicts of law provisions). Any disputes, claims, and questions regarding interpretation, performance, and enforceability\nconcerning this agreement, and the rights and remedies of the parties, any action or judicial proceeding and all related actions or\ncounterclaims shall be initiated and\n«First_Name» «Last_Name»\nPage 4\nprosecuted exclusively in Brown County, Wisconsin, in either the Brown County Circuit Court, or the Green Bay branch of the\nfederal district court for the Eastern District of Wisconsin. YOU AND SCHNEIDER EACH IRREVOCABLY WAIVE ANY AND\nALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS\nAGREEMENT. In addition, the prevailing party in any such proceeding shall be entitled to recover its expenses, including reasonable\nattorneys’ fees, from the non-prevailing party.\nb. Third Party Beneficiaries. Subsidiaries and affiliates of Schneider National, Inc. are third-party beneficiaries with respect to this\nagreement and may enforce this agreement directly against you. You agree that this Agreement shall be effective and inure to the\nbenefit of any subsidiaries, affiliates, divisions, successors, and/or assigns of Schneider.\nc. Waiver. Any waiver by Schneider of any claim against you under this agreement must be in writing and shall not be a waiver of any\nsubsequent breach of this agreement.\nd. Severability. Each section of this agreement shall be treated as a separate and independent clause, and the unenforceability of any\none clause shall in no way impair the enforceability of any of the other clauses in this agreement. In addition, if one or more of the\nprovisions in this agreement are for any reason held to be excessively broad as to scope, activity, subject or otherwise so as to be\nunenforceable at law, such provision(s) shall be interpreted by the appropriate judicial body by limiting or reducing it or them, so as\nto be enforceable to the maximum extent compatible with applicable law.\n6.\nDefinitions. To ensure a clear understanding of this Agreement we have included the following definitions:\na. Confidential Information. “Confidential Information” means information (i) relating to Schneider ’s business that is not a Trade\nSecret and that (a) is not generally known to or obtainable by proper means by Schneider’s competitors, and/or which has limited\ndisclosure within Schneider for reasons of security and confidentiality, and/or which has been designated as confidential by\nSchneider; and (b) the disclosure of which could reasonably be considered harmful to Schneider’s legitimate business interests; and\n(ii) from third parties that Schneider is contractually obligated to maintain the confidentiality of. Confidential Information may\ninclude, without limitation, technical, experimental, engineering, scientific, research or logistical data. Confidential Information may\nalso include customer preferences, customer information, information concerning Schneider’s business plans and strategies, sales,\npricing, and any assimilation of publicly available information which is reassembled in internal studies for competitive purposes.\nb. Trade Secrets. The term “Trade Secrets” has the meaning set forth under applicable law.\nc. Exclusions. The terms “Confidential Information” and “Trade Secrets” do not include information which: (i) at the time of disclosure\nto you is in the public domain; (ii) after disclosure to you becomes part of the public domain through no fault of you; (iii) is\n«First_Name» «Last_Name»\nPage 5\ndisclosed to you by a third party that does not have obligations of confidentiality and does have the right to disclose the information;\nor (iv) is independently developed by you outside the scope of your employment without use of Confidential Information or Trade\nSecrets.\nd. Developments. The term “Developments” means all ideas, designs, modifications, formulations, specifications, concepts, know-how,\ntrade secrets, discoveries, business ideas, inventions, data, software, developments, and copyrightable works, whether or not\npatentable or registrable, which you originate or develop either alone or jointly with others while you are employed by Schneider and\nwhich are (i) related to any business known to you to be engaged in or contemplated by Schneider; (ii) originated or developed during\nyour working hours; or (iii) originated or developed, in whole or in part, using materials, labor, facilities, or equipment furnished by\nSchneider. Developments do not include any invention by you for which no equipment, supplies, facility, or Trade Secret information\nof Schneider was used and which was developed entirely on your own time unless (a) the invention relates (1) to the business of\nSchneider, or (2) to Schneider’s actual or demonstrably anticipated research or development, or (b) the invention results from any\nwork performed by you for Schneider.\ne. Privacy Restricted Information. The term “Privacy Restricted Information” means any information that (i) may be used to identify\nany person; (ii) identifies characteristics (such as qualities, likes, dislikes, propensities, or tendencies) of any person; or (iii) is\notherwise regulated by any privacy laws. Privacy Restricted Information includes personnel data, salary information, medical data,\nattorney-client privileged materials, social security numbers, payment and processing information, and other similarly sensitive\ninformation.\nf. Schneider. The term “Schneider” shall include Schneider National, Inc. and any and all of its subsidiaries, subdivisions, affiliates or\nsuccessors, whether by merger, acquisition, recapitalization, reorganization or reincorporation.\nBy signing below, you acknowledge that you (i) have had the opportunity to discuss any questions you may have regarding this agreement with a\nrepresentative of Schneider, (ii) have had the opportunity to review this agreement, (iii) fully understand your obligations under this agreement,\nand (iv) have chosen to sign this agreement of your own free will after having considered its benefits and obligations.\n«First_Name» «Last_Name»\nPage 6\nDO NOT SIGN IF YOU DO NOT UNDERSTAND EVERYTHING IN THIS AGREEMENT. YOUR SIGNATURE INDICATES THAT YOU\nUNDERSTAND AND ACCEPT THIS AGREEMENT.\nAccepted and Agreed To:\n(Print Name)\n(Signature)\n(Date)	EX-10.29 25 d238359dex1029.htm EX-10.29\nExhibit 10.29\n».LOGO\n«First._ Name» «Last_Name»\n«Street»\n«City», «State» «Zip»\nRe: Confidentiality Agreement\nDear «First_Name»:\nAs a key employee of the Schneider organization, and as a member of the Enterprise Leadership Circle, you have and will have access to\ncertain “Confidential Information” and “Trade Secrets,” which are defined below. Such Confidential Information and Trade Secrets have been\ndeveloped and maintained through the investment of considerable time, effort and expense by Schneider and represent significant corporate\nassets of Schneider. Such Confidential Information must be subject to reasonable safeguards and protections such as protections against its\nunauthorized or improper use or disclosure. This letter represents an important aspect of protection of Confidential Information as set forth in this\nConfidentiality Agreement (“Agreement”).\nIt is the intent of the parties that this letter, in its entirety (including its introductory and closing paragraphs), upon being signed by you,\nconstitute a legally binding contract. Simply to assist the reader, certain of the paragraphs are numbered and titled. For ease of reference,\n“Schneider” or the pronouns “we” or “us” as used throughout this Agreement refer to Schneider National, Inc. and its subsidiaries and affiliates,\nwhile you, as addressee of this letter, are referred to with the pronouns “you” or “your”, as appropriate.\nIn consideration of your continued employment by Schneider, the compensation and benefits incident to your employment with Schneider,\nand, if applicable, Schneider’s granting to you participation or continued participation in the Schneider National, Inc. 2017 Omnibus Incentive\nPlan, which is hereinafter referred to as the “Incentive Plan,”, you agree as follows:\n1.  Confidential Information, Trade Secrets, and Privacy Restricted Information.\na. During Employment. While employed by Schneider, you will (i) hold in trust and confidence all Confidential Information, Trade\nSecrets, and Privacy Restricted Information (collectively, “Protected Information”) that come into your possession; (ii) not disclose,\ndirectly or indirectly, or replicate any Protected Information to any person outside of Schneider, except to third parties in the ordinary\ncourse of your duties who have a legal obligation to maintain the confidentiality of such information (such as Schneider’s auditors\nand attorneys) or as otherwise directed to do so in writing by an Officer of Schneider or its General Counsel; (iii) not disclose,\ndirectly or indirectly, any Protected Information to any Schneider associate, except upon a “need to know” basis to an associate who\nhas also agreed to this or a similar confidentiality agreement; and (iv)\n«First._ Name» «Last_Name» Page 2\naccess and use Protected Information only in furtherance of your job responsibilities and for Schneider’s benefit and not for your own\npersonal use or advantage. During your employment, you agree to use utmost care to ensure that all Protected Information is\nmaintained in a confidential manner by using appropriate security at all times, including using screen protection on monitors,\nnon-sharing of user names and passwords, securing of hard copies of all Protected Information, and all other measures necessary to\nmaintain the confidentiality of all Protected Information. You agree that it is your responsibility to maintain your workspace in such a\nway as to minimize the risk of observation of Protected Information through you by unauthorized persons. During your employment\nwith Schneider, you agree to refrain from unauthorized duplication, documentation, or reproduction of Protected Information through\nany means. When your employment with Schneider ends, regardless of the reason, you will promptly return all Protected Information\nin your possession or under your control to Schneider, including any copies, documentation, or reproductions thereof and agree to\ncertify the same to Schneider if requested.\n. Trade Secrets Post-Employment. After your employment with Schneider, you agree to not directly or indirectly use or disclose any of Schneider’s Trade Secrets. Nothing in this agreement shall limit or supersede any common law, statutory or other protections of\ntrade secrets where such protections provide Schneider with greater rights or protections for a longer duration than provided in this\nagreement.\n. Confidential Information Post-Employment. For a period of eighteen (18) months after your employment with Schneider, you will not directly or indirectly use or disclose any of Schneider’s Confidential Information.\n. Privacy Restricted Information Post-Employment. After your employment with Schneider ends, for any reason, you agree to not directly or indirectly use or disclose any Privacy Restricted Information for so long as such information remains protected by law.\n. Developments. While employed by Schneider, you will promptly disclose all Developments to your Schneider Human Resource Business Partner (HRBP) and, to the extent not owned by Schneider, you hereby assign all right, title and interest in and to all such\nDevelopments to Schneider. At any time during or after your employment with Schneider, you will promptly execute all documents\nand do all acts and things that Schneider may reasonably require to perfect, defend and enforce its patent, copyright, trademark, trade\nsecret and other intellectual or proprietary rights to such Developments throughout the world, and you hereby irrevocably designate\nand appoint Schneider and its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf to\ndo any of the foregoing with the same legal force and effect as if executed by you.\n. Exceptions. Notwithstanding anything to the contrary, this Agreement is not intended to, and shall be interpreted in a manner that does not, limit or restrict you from exercising any legally protected whistleblower rights (including pursuant to Rule 21F under the\nSecurities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002), or\n«First._ Name» «Last_Name»\nPage 3\nfrom exercising your rights to communicate with a government agency as provided for, protected under or warranted by applicable\nlaw. Schneider does not require prior notification or prior approval of any such whistleblowing report. Furthermore, for the avoidance\nof doubt, pursuant to the federal Defend Trade Secrets Act of 2016, you shall not be held criminally or civilly liable under any federal\nor state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a federal, state, or local government\nofficial, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected\nviolation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under\nseal.\n2. Confidential Information of Others. You certify that you have not disclosed or used, and will not disclose or use, during your\nemployment with Schneider, any confidential information that you acquired as a result of any previous employment or under a contractual\nobligation of confidentiality or secrecy before you became an Associate of Schneider.\n3.  No Guarantee of Employment. You acknowledge that, as a Schneider Associate, you are an “at will” employee, meaning either you or\nSchneider can terminate your employment at any time with or without cause. No communications, oral or written, by Schneider or any of\nits agents can change the fact that this agreement is not an employment contract and does not change your at-will status. This agreement\napplies during and after your employment, and this agreement is enforceable regardless of whether your separation is voluntary.\n4.  Equitable Remedies and Forfeiture. You acknowledge that if you breach this agreement, Schneider’s damages will or may be difficult to\nascertain, money damages may not be adequate, and Schneider may incur irreparable harm and continuing damage. Accordingly, Schneider\nwill be entitled to any and all equitable remedies for breach of this agreement, including, without limitation, injunctive relief, as well as any\nmoney damages or other legal relief to which Schneider may be entitled. Without limiting any clawback and/or forfeiture remedies\navailable to Schneider under your award agreements or the Incentive Plan, if you breach any provisions of this Agreement or of your\nEmployee Non-Compete and No-Solicitation Agreement, with Schneider, all deferrals of Incentive Plan amounts with respect to you, as\nwell as appreciation, earnings and gains related thereto, credited under the plan to you shall be forfeited and your rights, payments and\nbenefits with respect to all deferrals/awards shall be subject to reduction, cancellation, forfeiture or recoupment. You agree that, to the\nextent this Agreement is inconsistent with any other Non Disclosure and Development Agreement you have signed, this Agreement\nsupersedes any such other agreement and is controlling.\n5. Miscellaneous.\na. Applicable Law; Jurisdiction. This agreement shall be governed by and enforced under the laws of the state of Wisconsin,\n(excluding conflicts of law provisions). Any disputes, claims, and questions regarding interpretation, performance, and enforceability\nconcerning this agreement, and the rights and remedies of the parties, any action or judicial proceeding and all related actions or\ncounterclaims shall be initiated and\n«First._ Name» «Last_Name» Page 4\n6.\nprosecuted exclusively in Brown County, Wisconsin, in either the Brown County Circuit Court, or the Green Bay branch of the\nfederal district court for the Eastern District of Wisconsin. YOU AND SCHNEIDER EACH IRREVOCABLY WAIVE ANY AND\nALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS\nAGREEMENT. In addition, the prevailing party in any such proceeding shall be entitled to recover its expenses, including reasonable\nattorneys’ fees, from the non-prevailing party.\n. Third Party Beneficiaries. Subsidiaries and affiliates of Schneider National, Inc. are third-party beneficiaries with respect to this agreement and may enforce this agreement directly against you. You agree that this Agreement shall be effective and inure to the\nbenefit of any subsidiaries, affiliates, divisions, successors, and/or assigns of Schneider.\n. Waiver. Any waiver by Schneider of any claim against you under this agreement must be in writing and shall not be a waiver of any subsequent breach of this agreement.\n. Severability. Each section of this agreement shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses in this agreement. In addition, if one or more of the\nprovisions in this agreement are for any reason held to be excessively broad as to scope, activity, subject or otherwise so as to be\nunenforceable at law, such provision(s) shall be interpreted by the appropriate judicial body by limiting or reducing it or them, so as\nto be enforceable to the maximum extent compatible with applicable law.\nDefinitions. To ensure a clear understanding of this Agreement we have included the following definitions: a. Confidential Information. “Confidential Information” means information (i) relating to Schneider’s business that is not a Trade Secret and that (a) is not generally known to or obtainable by proper means by Schneider’s competitors, and/or which has limited\ndisclosure within Schneider for reasons of security and confidentiality, and/or which has been designated as confidential by\nSchneider; and (b) the disclosure of which could reasonably be considered harmful to Schneider’s legitimate business interests; and\n(ii) from third parties that Schneider is contractually obligated to maintain the confidentiality of. Confidential Information may\ninclude, without limitation, technical, experimental, engineering, scientific, research or logistical data. Confidential Information may\nalso include customer preferences, customer information, information concerning Schneider’s business plans and strategies, sales,\npricing, and any assimilation of publicly available information which is reassembled in internal studies for competitive purposes.\n. Trade Secrets. The term “Trade Secrets” has the meaning set forth under applicable law. . Exclusions. The terms “Confidential Information” and “Trade Secrets” do not include information which: (i) at the time of disclosure to you is in the public domain; (ii) after disclosure to you becomes part of the public domain through no fault of you; (iii) is\n«First._ Name» «Last_Name» Page 5\ndisclosed to you by a third party that does not have obligations of confidentiality and does have the right to disclose the information;\nor (iv) is independently developed by you outside the scope of your employment without use of Confidential Information or Trade\nSecrets.\n. Developments. The term “Developments” means all ideas, designs, modifications, formulations, specifications, concepts, know-how, trade secrets, discoveries, business ideas, inventions, data, software, developments, and copyrightable works, whether or not\npatentable or registrable, which you originate or develop either alone or jointly with others while you are employed by Schneider and\nwhich are (i) related to any business known to you to be engaged in or contemplated by Schneider; (ii) originated or developed during\nyour working hours; or (iii) originated or developed, in whole or in part, using materials, labor, facilities, or equipment furnished by\nSchneider. Developments do not include any invention by you for which no equipment, supplies, facility, or Trade Secret information\nof Schneider was used and which was developed entirely on your own time unless (a) the invention relates (1) to the business of\nSchneider, or (2) to Schneider’s actual or demonstrably anticipated research or development, or (b) the invention results from any\nwork performed by you for Schneider.\n. Privacy Restricted Information. The term “Privacy Restricted Information” means any information that (i) may be used to identify  \nany person; (ii) identifies characteristics (such as qualities, likes, dislikes, propensities, or tendencies) of any person; or (iii) is\notherwise regulated by any privacy laws. Privacy Restricted Information includes personnel data, salary information, medical data,\nattorney-client privileged materials, social security numbers, payment and processing information, and other similarly sensitive\ninformation.\n. Schneider. The term “Schneider” shall include Schneider National, Inc. and any and all of its subsidiaries, subdivisions, affiliates or successors, whether by merger, acquisition, recapitalization, reorganization or reincorporation.\nBy signing below, you acknowledge that you (i) have had the opportunity to discuss any questions you may have regarding this agreement with a representative of Schneider, (ii) have had the opportunity to review this agreement, (iii) fully understand your obligations under this agreement, and (iv) have chosen to sign this agreement of your own free will after having considered its benefits and obligations.\f«First._Name» «Last_Name»\nPage 6\nDO NOT SIGN IF YOU DO NOT UNDERSTAND EVERYTHING IN THIS AGREEMENT. YOUR SIGNATURE INDICATES THAT YOU\nUNDERSTAND AND ACCEPT THIS AGREEMENT.\nAccepted and Agreed To:\n(Print Name)\n(Signature)\n(Date)	EX-10.29 25 d238359dex1029.htm EX-10.29\nExhibit 10.29\nLOGO\n<First_Name> <<Last_Name>\n<<Street>\n<<City>, <<State> <Zip>\nRe: Confidentiality Agreement\nDear <First_Name>:\nAs a key employee of the Schneider organization, and as a member of the Enterprise Leadership Circle, you have and will have access to\ncertain "Confidential Information" and "Trade Secrets," which are defined below. Such Confidential Information and Trade Secrets have been\ndeveloped and maintained through the investment of considerable time, effort and expense by Schneider and represent significant corporate\nassets of Schneider. Such Confidential Information must be subject to reasonable safeguards and protections such as protections against its\nunauthorized or improper use or disclosure. This letter represents an important aspect of protection of Confidential Information as set forth in\nthis\nConfidentiality Agreement ("Agreement").\nIt is the intent of the parties that this letter, in its entirety (including its introductory and closing paragraphs), upon being signed by you,\nconstitute a legally binding contract. Simply to assist the reader, certain of the paragraphs are numbered and titled. For ease of reference,\n"Schneider" or the pronouns "we" or "us" as used throughout this Agreement refer to Schneider National, Inc. and its subsidiaries and affiliates,\nwhile you, as addressee of this letter, are referred to with the pronouns "you" or "your", as appropriate.\nIn consideration of your continued employment by Schneider, the compensation and benefits incident to your employment with Schneider,\nand, if applicable, Schneider's granting to you participation or continued participation in the Schneider National, Inc. 2017 Omnibus Incentive\nPlan, which is hereinafter referred to as the "Incentive Plan,", you agree as follows:\n1.\nConfidential Information, Trade Secrets, and Privacy Restricted Information.\na.\nDuring Employment. While employed by Schneider, you will (i) hold in trust and confidence all Confidential Information, Trade\nSecrets, and Privacy Restricted Information (collectively, "Protected Information") that come into your possession; (ii) not disclose,\ndirectly or indirectly, or replicate any Protected Information to any person outside of Schneider, except to third parties in the ordinary\ncourse of your duties who have a legal obligation to maintain the confidentiality of such information (such as Schneider's auditors\nand attorneys) or as otherwise directed to do so in writing by an Officer of Schneider or its General Counsel; (iii) not disclose,\ndirectly or indirectly, any Protected Information to any Schneider associate, except upon a "need to know" basis to an associate who\nhas also agreed to this or a similar confidentiality agreement; and (iv)\n<<First_Name> <LastName>\nPage 2\naccess and use Protected Information only in furtherance of your job responsibilities and for Schneider's benefit and not for your own\npersonal use or advantage. During your employment, you agree to use utmost care to ensure that all Protected Information is\nmaintained in a confidential manner by using appropriate security at all times, including using screen protection on monitors,\nnon-sharing of user names and passwords, securing of hard copies of all Protected Information, and all other measures necessary to\nmaintain the confidentiality of all Protected Information. You agree that it is your responsibility to maintain your workspace in such a\nway as to minimize the risk of observation of Protected Information through you by unauthorized persons. During your employment\nwith Schneider, you agree to refrain from unauthorized duplication, documentation, or reproduction of Protected Information through\nany means. When your employment with Schneider ends, regardless of the reason, you will promptly return all Protected Information\nin your possession or under your control to Schneider, including any copies, documentation, or reproductions thereof and agree to\ncertify the same to Schneider if requested.\nb. Trade Secrets Post-Employment. After your employment with Schneider, you agree to not directly or indirectly use or disclose any\nof Schneider's Trade Secrets. Nothing in this agreement shall limit or supersede any common law, statutory or other protections of\ntrade secrets where such protections provide Schneider with greater rights or protections for a longer duration than provided in this\nagreement.\nC. Confidential Information Post-Employment. For a period of eighteen (18) months after your employment with Schneider, you will\nnot directly or indirectly use or disclose any of Schneider's Confidential Information.\nd. Privacy Restricted Information Post-Employment. After your employment with Schneider ends, for any reason, you agree to not\ndirectly or indirectly use or disclose any Privacy Restricted Information for so long as such information remains protected by law.\ne. Developments. While employed by Schneider, you will promptly disclose all Developments to your Schneider Human Resource\nBusiness Partner (HRBP) and, to the extent not owned by Schneider, you hereby assign all right, title and interest in and to all such\nDevelopments to Schneider. At any time during or after your employment with Schneider, you will promptly execute all documents\nand do all acts and things that Schneider may reasonably require to perfect, defend and enforce its patent, copyright, trademark, trade\nsecret and other intellectual or proprietary rights to such Developments throughout the world, and you hereby irrevocably designate\nand appoint Schneider and its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf\nto\ndo any of the foregoing with the same legal force and effect as if executed by you.\nf. Exceptions. Notwithstanding anything to the contrary, this Agreement is not intended to, and shall be interpreted in a manner that\ndoes not, limit or restrict you from exercising any legally protected whistleblower rights (including pursuant to Rule 21F under the\nSecurities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002), or\n<<First_Name> <<Last_Name>\nPage 3\nfrom exercising your rights to communicate with a government agency as provided for, protected under or warranted by applicable\nlaw. Schneider does not require prior notification or prior approval of any such whistleblowing report. Furthermore, for the avoidance\nof doubt, pursuant to the federal Defend Trade Secrets Act of 2016, you shall not be held criminally or civilly liable under any federal\nor state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a federal, state, or local government\nofficial, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected\nviolation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under\nseal.\n2.\nConfidential Information of Others. You certify that you have not disclosed or used, and will not disclose or use, during your\nemployment with Schneider, any confidential information that you acquired as a result of any previous employment or under a contractual\nobligation of confidentiality or secrecy before you became an Associate of Schneider.\n3.\nNo Guarantee of Employment. You acknowledge that, as a Schneider Associate, you are an "at will" employee, meaning either you or\nSchneider can terminate your employment at any time with or without cause. No communications, oral or written, by Schneider or any of\nits agents can change the fact that this agreement is not an employment contract and does not change your at-will status. This agreement\napplies during and after your employment, and this agreement is enforceable regardless of whether your separation is voluntary.\n4.\nEquitable Remedies and Forfeiture. You acknowledge that if you breach this agreement, Schneider's damages will or may be difficult to\nascertain, money damages may not be adequate, and Schneider may incur irreparable harm and continuing damage. Accordingly, Schneider\nwill be entitled to any and all equitable remedies for breach of this agreement, including, without limitation, injunctive relief, as well as any\nmoney damages or other legal relief to which Schneider may be entitled. Without limiting any clawback and/or forfeiture remedies\navailable to Schneider under your award agreements or the Incentive Plan, if you breach any provisions of this Agreement or of your\nEmployee Non-Compete and No-Solicitation Agreement, with Schneider, all deferrals of Incentive Plan amounts with respect to you, as\nwell as appreciation, earnings and gains related thereto, credited under the plan to you shall be forfeited and your rights, payments and\nbenefits with respect to all deferrals/awards shall be subject to reduction, cancellation, forfeiture or recoupment. You agree that, to the\nextent this Agreement is inconsistent with any other Non Disclosure and Development Agreement you have signed, this Agreement\nsupersedes any such other agreement and is controlling.\n5. Miscellaneous.\na. Applicable Law; Jurisdiction. This agreement shall be governed by and enforced under the laws of the state of Wisconsin,\n(excluding conflicts of law provisions). Any disputes, claims, and questions regarding interpretation, performance, and enforceability\nconcerning this agreement, and the rights and remedies of the parties, any action or judicial proceeding and all related actions or\ncounterclaims shall be initiated and\n<<First_Name> <Last_Name>\nPage 4\nprosecuted exclusively in Brown County, Wisconsin, in either the Brown County Circuit Court, or the Green Bay branch of the\nfederal district court for the Eastern District of Wisconsin. YOU AND SCHNEIDER EACH IRREVOCABLY WAIVE ANY AND\nALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS\nAGREEMENT. In addition, the prevailing party in any such proceeding shall be entitled to recover its expenses, including reasonable\nattorneys' fees, from the non-prevailing party.\nb. Third Party Beneficiaries. Subsidiaries and affiliates of Schneider National, Inc. are third-party beneficiaries with respect to this\nagreement and may enforce this agreement directly against you. You agree that this Agreement shall be effective and inure to the\nbenefit of any subsidiaries, affiliates, divisions, successors, and/or assigns of Schneider.\nC.\nWaiver. Any waiver by Schneider of any claim against you under this agreement must be in writing and shall not be a waiver of any\nsubsequent breach of this agreement.\nd.\nSeverability. Each section of this agreement shall be treated as a separate and independent clause, and the unenforceability of any\none clause shall in no way impair the enforceability of any of the other clauses in this agreement. In addition, if one or more of the\nprovisions in this agreement are for any reason held to be excessively broad as to scope, activity, subject or otherwise so as to be\nunenforceable at law, such provision(s) shall be interpreted by the appropriate judicial body by limiting or reducing it or them, so as\nto be enforceable to the maximum extent compatible with applicable law.\n6.\nDefinitions To ensure a clear understanding of this Agreement we have included the following definitions:\na. Confidential Information. "Confidential Information" means information (i) relating to Schneider's business that is not a Trade\nSecret and that (a) is not generally known to or obtainable by proper means by Schneider's competitors, and/or which has limited\ndisclosure within Schneider for reasons of security and confidentiality, and/or which has been designated as confidential by\nSchneider; and (b) the disclosure of which could reasonably be considered harmful to Schneider's legitimate business interests; and\n(ii) from third parties that Schneider is contractually obligated to maintain the confidentiality of. Confidential Information may\ninclude, without limitation, technical, experimental, engineering, scientific, research or logistical data. Confidential Information may\nalso include customer preferences, customer information, information concerning Schneider's business plans and strategies, sales,\npricing, and any assimilation of publicly available information which is reassembled in internal studies for competitive purposes.\nb.\nTrade Secrets. The term "Trade Secrets" has the meaning set forth under applicable law.\nC.\nExclusions. The terms "Confidential Information" and "Trade Secrets" do not include information which: (i) at the time of disclosure\nto you is in the public domain; (ii) after disclosure to you becomes part of the public domain through no fault of you; (iii) is\n<<FirstName> <<Last_Name>\nPage 5\ndisclosed to you by a third party that does not have obligations of confidentiality and does have the right to disclose the information;\nor (iv) is independently developed by you outside the scope of your employment without use of Confidential Information or Trade\nSecrets.\nd.\nDevelopments. The term "Developments" means all ideas, designs, modifications, formulations, specifications, concepts, know-how,\ntrade secrets, discoveries, business ideas, inventions, data, software, developments, and copyrightable works, whether or not\npatentable or registrable, which you originate or develop either alone or jointly with others while you are employed by Schneider and\nwhich are (i) related to any business known to you to be engaged in or contemplated by Schneider; (ii) originated or developed during\nyour working hours; or (iii) originated or developed, in whole or in part, using materials, labor, facilities, or equipment furnished by\nSchneider. Developments do not include any invention by you for which no equipment, supplies, facility, or Trade Secret information\nof Schneider was used and which was developed entirely on your own time unless (a) the invention relates (1) to the business of\nSchneider, or (2) to Schneider's actual or demonstrably anticipated research or development, or (b) the invention results from any\nwork performed by you for Schneider.\ne. Privacy Restricted Information. The term "Privacy Restricted Information" means any information that (i) may be used to identify\nany person; (ii) identifies characteristics (such as qualities, likes, dislikes, propensities, or tendencies) of any person; or (iii) is\notherwise regulated by any privacy laws. Privacy Restricted Information includes personnel data, salary information, medical data,\nattorney-client privileged materials, social security numbers, payment and processing information, and other similarly sensitive\ninformation.\nf.\nSchneider. The term "Schneider" shall include Schneider National, Inc. and any and all of its subsidiaries, subdivisions, affiliates or\nsuccessors, whether by merger, acquisition, recapitalization, reorganization or reincorporation.\nBy signing below, you acknowledge that you (i) have had the opportunity to discuss any questions you may have regarding this agreement with a\nrepresentative of Schneider, (ii) have had the opportunity to review this agreement, (iii) fully understand your obligations under this agreement,\nand (iv) have chosen to sign this agreement of your own free will after having considered its benefits and obligations.\n<<First_Name> <<LastName>\nPage 6\nDO NOT SIGN IF YOU DO NOT UNDERSTAND EVERYTHING IN THIS AGREEMENT. YOUR SIGNATURE INDICATES THAT YOU\nUNDERSTAND AND ACCEPT THIS AGREEMENT.\nAccepted and Agreed To:\n(Print Name)\n(Signature)\n(Date)	EX-10.29 25 d238359dex1029.htm EX-10.29\nExhibit 10.29\nLOGO\n«First_Name» «Last_Name»\n«Street»\n«City», «State» «Zip»\nRe: Confidentiality Agreement\nDear «First_Name»:\nAs a key employee of the Schneider organization, and as a member of the Enterprise Leadership Circle, you have and will have access to\ncertain “Confidential Information” and “Trade Secrets,” which are defined below. Such Confidential Information and Trade Secrets have been\ndeveloped and maintained through the investment of considerable time, effort and expense by Schneider and represent significant corporate\nassets of Schneider. Such Confidential Information must be subject to reasonable safeguards and protections such as protections against its\nunauthorized or improper use or disclosure. This letter represents an important aspect of protection of Confidential Information as set forth in this\nConfidentiality Agreement (“Agreement”).\nIt is the intent of the parties that this letter, in its entirety (including its introductory and closing paragraphs), upon being signed by you,\nconstitute a legally binding contract. Simply to assist the reader, certain of the paragraphs are numbered and titled. For ease of reference,\n“Schneider” or the pronouns “we” or “us” as used throughout this Agreement refer to Schneider National, Inc. and its subsidiaries and affiliates,\nwhile you, as addressee of this letter, are referred to with the pronouns “you” or “your”, as appropriate.\nIn consideration of your continued employment by Schneider, the compensation and benefits incident to your employment with Schneider,\nand, if applicable, Schneider ’s granting to you participation or continued participation in the Schneider National, Inc. 2017 Omnibus Incentive\nPlan, which is hereinafter referred to as the “Incentive Plan,”, you agree as follows:\n1. Confidential Information, Trade Secrets, and Privacy Restricted Information.\na. During Employment. While employed by Schneider, you will (i) hold in trust and confidence all Confidential Information, Trade\nSecrets, and Privacy Restricted Information (collectively, “Protected Information”) that come into your possession; (ii) not disclose,\ndirectly or indirectly, or replicate any Protected Information to any person outside of Schneider, except to third parties in the ordinary\ncourse of your duties who have a legal obligation to maintain the confidentiality of such information (such as Schneider’s auditors\nand attorneys) or as otherwise directed to do so in writing by an Officer of Schneider or its General Counsel; (iii) not disclose,\ndirectly or indirectly, any Protected Information to any Schneider associate, except upon a “need to know” basis to an associate who\nhas also agreed to this or a similar confidentiality agreement; and (iv)\n«First_Name» «Last_Name»\nPage 2\naccess and use Protected Information only in furtherance of your job responsibilities and for Schneider’s benefit and not for your own\npersonal use or advantage. During your employment, you agree to use utmost care to ensure that all Protected Information is\nmaintained in a confidential manner by using appropriate security at all times, including using screen protection on monitors,\nnon-sharing of user names and passwords, securing of hard copies of all Protected Information, and all other measures necessary to\nmaintain the confidentiality of all Protected Information. You agree that it is your responsibility to maintain your workspace in such a\nway as to minimize the risk of observation of Protected Information through you by unauthorized persons. During your employment\nwith Schneider, you agree to refrain from unauthorized duplication, documentation, or reproduction of Protected Information through\nany means. When your employment with Schneider ends, regardless of the reason, you will promptly return all Protected Information\nin your possession or under your control to Schneider, including any copies, documentation, or reproductions thereof and agree to\ncertify the same to Schneider if requested.\nb. Trade Secrets Post-Employment. After your employment with Schneider, you agree to not directly or indirectly use or disclose any\nof Schneider’s Trade Secrets. Nothing in this agreement shall limit or supersede any common law, statutory or other protections of\ntrade secrets where such protections provide Schneider with greater rights or protections for a longer duration than provided in this\nagreement.\nc. Confidential Information Post-Employment. For a period of eighteen (18) months after your employment with Schneider, you will\nnot directly or indirectly use or disclose any of Schneider’s Confidential Information.\nd. Privacy Restricted Information Post-Employment. After your employment with Schneider ends, for any reason, you agree to not\ndirectly or indirectly use or disclose any Privacy Restricted Information for so long as such information remains protected by law.\ne. Developments. While employed by Schneider, you will promptly disclose all Developments to your Schneider Human Resource\nBusiness Partner (HRBP) and, to the extent not owned by Schneider, you hereby assign all right, title and interest in and to all such\nDevelopments to Schneider. At any time during or after your employment with Schneider, you will promptly execute all documents\nand do all acts and things that Schneider may reasonably require to perfect, defend and enforce its patent, copyright, trademark, trade\nsecret and other intellectual or proprietary rights to such Developments throughout the world, and you hereby irrevocably designate\nand appoint Schneider and its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf to\ndo any of the foregoing with the same legal force and effect as if executed by you.\nf. Exceptions. Notwithstanding anything to the contrary, this Agreement is not intended to, and shall be interpreted in a manner that\ndoes not, limit or restrict you from exercising any legally protected whistleblower rights (including pursuant to Rule 21F under the\nSecurities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002), or\n«First_Name» «Last_Name»\nPage 3\nfrom exercising your rights to communicate with a government agency as provided for, protected under or warranted by applicable\nlaw. Schneider does not require prior notification or prior approval of any such whistleblowing report. Furthermore, for the avoidance\nof doubt, pursuant to the federal Defend Trade Secrets Act of 2016, you shall not be held criminally or civilly liable under any federal\nor state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a federal, state, or local government\nofficial, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected\nviolation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under\nseal.\n2. Confidential Information of Others. You certify that you have not disclosed or used, and will not disclose or use, during your\nemployment with Schneider, any confidential information that you acquired as a result of any previous employment or under a contractual\nobligation of confidentiality or secrecy before you became an Associate of Schneider.\n3. No Guarantee of Employment. You acknowledge that, as a Schneider Associate, you are an “at will” employee, meaning either you or\nSchneider can terminate your employment at any time with or without cause. No communications, oral or written, by Schneider or any of\nits agents can change the fact that this agreement is not an employment contract and does not change your at-will status. This agreement\napplies during and after your employment, and this agreement is enforceable regardless of whether your separation is voluntary.\n4. Equitable Remedies and Forfeiture. You acknowledge that if you breach this agreement, Schneider’s damages will or may be difficult to\nascertain, money damages may not be adequate, and Schneider may incur irreparable harm and continuing damage. Accordingly, Schneider\nwill be entitled to any and all equitable remedies for breach of this agreement, including, without limitation, injunctive relief, as well as any\nmoney damages or other legal relief to which Schneider may be entitled. Without limiting any clawback and/or forfeiture remedies\navailable to Schneider under your award agreements or the Incentive Plan, if you breach any provisions of this Agreement or of your\nEmployee Non-Compete and No-Solicitation Agreement, with Schneider, all deferrals of Incentive Plan amounts with respect to you, as\nwell as appreciation, earnings and gains related thereto, credited under the plan to you shall be forfeited and your rights, payments and\nbenefits with respect to all deferrals/awards shall be subject to reduction, cancellation, forfeiture or recoupment. You agree that, to the\nextent this Agreement is inconsistent with any other Non Disclosure and Development Agreement you have signed, this Agreement\nsupersedes any such other agreement and is controlling.\n5. Miscellaneous.\na. Applicable Law; Jurisdiction. This agreement shall be governed by and enforced under the laws of the state of Wisconsin,\n(excluding conflicts of law provisions). Any disputes, claims, and questions regarding interpretation, performance, and enforceability\nconcerning this agreement, and the rights and remedies of the parties, any action or judicial proceeding and all related actions or\ncounterclaims shall be initiated and\n«First_Name» «Last_Name»\nPage 4\nprosecuted exclusively in Brown County, Wisconsin, in either the Brown County Circuit Court, or the Green Bay branch of the\nfederal district court for the Eastern District of Wisconsin. YOU AND SCHNEIDER EACH IRREVOCABLY WAIVE ANY AND\nALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS\nAGREEMENT. In addition, the prevailing party in any such proceeding shall be entitled to recover its expenses, including reasonable\nattorneys’ fees, from the non-prevailing party.\nb. Third Party Beneficiaries. Subsidiaries and affiliates of Schneider National, Inc. are third-party beneficiaries with respect to this\nagreement and may enforce this agreement directly against you. You agree that this Agreement shall be effective and inure to the\nbenefit of any subsidiaries, affiliates, divisions, successors, and/or assigns of Schneider.\nc. Waiver. Any waiver by Schneider of any claim against you under this agreement must be in writing and shall not be a waiver of any\nsubsequent breach of this agreement.\nd. Severability. Each section of this agreement shall be treated as a separate and independent clause, and the unenforceability of any\none clause shall in no way impair the enforceability of any of the other clauses in this agreement. In addition, if one or more of the\nprovisions in this agreement are for any reason held to be excessively broad as to scope, activity, subject or otherwise so as to be\nunenforceable at law, such provision(s) shall be interpreted by the appropriate judicial body by limiting or reducing it or them, so as\nto be enforceable to the maximum extent compatible with applicable law.\n6.\nDefinitions. To ensure a clear understanding of this Agreement we have included the following definitions:\na. Confidential Information. “Confidential Information” means information (i) relating to Schneider ’s business that is not a Trade\nSecret and that (a) is not generally known to or obtainable by proper means by Schneider’s competitors, and/or which has limited\ndisclosure within Schneider for reasons of security and confidentiality, and/or which has been designated as confidential by\nSchneider; and (b) the disclosure of which could reasonably be considered harmful to Schneider’s legitimate business interests; and\n(ii) from third parties that Schneider is contractually obligated to maintain the confidentiality of. Confidential Information may\ninclude, without limitation, technical, experimental, engineering, scientific, research or logistical data. Confidential Information may\nalso include customer preferences, customer information, information concerning Schneider’s business plans and strategies, sales,\npricing, and any assimilation of publicly available information which is reassembled in internal studies for competitive purposes.\nb. Trade Secrets. The term “Trade Secrets” has the meaning set forth under applicable law.\nc. Exclusions. The terms “Confidential Information” and “Trade Secrets” do not include information which: (i) at the time of disclosure\nto you is in the public domain; (ii) after disclosure to you becomes part of the public domain through no fault of you; (iii) is\n«First_Name» «Last_Name»\nPage 5\ndisclosed to you by a third party that does not have obligations of confidentiality and does have the right to disclose the information;\nor (iv) is independently developed by you outside the scope of your employment without use of Confidential Information or Trade\nSecrets.\nd. Developments. The term “Developments” means all ideas, designs, modifications, formulations, specifications, concepts, know-how,\ntrade secrets, discoveries, business ideas, inventions, data, software, developments, and copyrightable works, whether or not\npatentable or registrable, which you originate or develop either alone or jointly with others while you are employed by Schneider and\nwhich are (i) related to any business known to you to be engaged in or contemplated by Schneider; (ii) originated or developed during\nyour working hours; or (iii) originated or developed, in whole or in part, using materials, labor, facilities, or equipment furnished by\nSchneider. Developments do not include any invention by you for which no equipment, supplies, facility, or Trade Secret information\nof Schneider was used and which was developed entirely on your own time unless (a) the invention relates (1) to the business of\nSchneider, or (2) to Schneider’s actual or demonstrably anticipated research or development, or (b) the invention results from any\nwork performed by you for Schneider.\ne. Privacy Restricted Information. The term “Privacy Restricted Information” means any information that (i) may be used to identify\nany person; (ii) identifies characteristics (such as qualities, likes, dislikes, propensities, or tendencies) of any person; or (iii) is\notherwise regulated by any privacy laws. Privacy Restricted Information includes personnel data, salary information, medical data,\nattorney-client privileged materials, social security numbers, payment and processing information, and other similarly sensitive\ninformation.\nf. Schneider. The term “Schneider” shall include Schneider National, Inc. and any and all of its subsidiaries, subdivisions, affiliates or\nsuccessors, whether by merger, acquisition, recapitalization, reorganization or reincorporation.\nBy signing below, you acknowledge that you (i) have had the opportunity to discuss any questions you may have regarding this agreement with a\nrepresentative of Schneider, (ii) have had the opportunity to review this agreement, (iii) fully understand your obligations under this agreement,\nand (iv) have chosen to sign this agreement of your own free will after having considered its benefits and obligations.\n«First_Name» «Last_Name»\nPage 6\nDO NOT SIGN IF YOU DO NOT UNDERSTAND EVERYTHING IN THIS AGREEMENT. YOUR SIGNATURE INDICATES THAT YOU\nUNDERSTAND AND ACCEPT THIS AGREEMENT.\nAccepted and Agreed To:\n(Print Name)\n(Signature)\n(Date)
2f3749e14385bf1eba71c61fdbc6f29f.pdf	effective_date jurisdiction party	Exhibit 10.9\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Employee Confidentiality Agreement ("Agreement") is made as of May 17, 2010 (the "Effective Date") by and between Victoria Industries, Inc., a Nevada\ncorporation (to be named as Motor Sport Country Club Holdings, Inc.) ("Party-1") and Robert A. Newson, an individual ("Party-2"), and\nParty-2 is employed by Party-1 in the following role: (President and Chief Operating Officer) (the "Business Purpose"). In the course of that employment regarding\nthe Business Purpose, Party-1 may disclose to Party-2 certain Confidential Information (as that term is later defined). By virtue of this Agreement, each party\nwishes to protect the confidentiality of such Confidential Information.\nParty-1 and Party-2 therefore agree as follows:\n1. DEFINITIONS.\n(a) "Confidential Information" means private or confidential information, data or materials of Party-1, and all such private or confidential information, data or\nmaterials must be marked as "confidential" or "proprietary" to the disclosing party, however, for oral disclosures of information, data or materials, the disclosing\nparty may describe the disclosure within twenty (20) days thereafter in a written notice provided to Contractor, referencing the time, date, and receiving individuals\nfor the disclosure, at which point such described information, data or materials become Confidential Information of the disclosing party on a going forward basis\nfrom the date of receiving party's receipt of such letter.\n(b) "Government Authority" means any governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of\nthe United States of America or any other country or territory, or domestic or foreign state, prefecture, province, commonwealth, city, county, municipality,\nterritory, protectorate or possession. (c) "Law" means all Laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of Law of\nany Government Authority.\n2. EMPLOYMENT.\n(a) No Employment Agreement. Party-2 acknowledges and agrees that employment with Party-1 is on an at-will basis, and either Party-1 or Party-2 may\nterminate the employment relationship at any time, for convenience, for any reason or no reason, and with or without cause. This Agreement is not an\nemployment agreement and is concerned only with this Agreement's subject matter.\n(b) OPPORTUNITY TO CONSULT WITH COUNSEL AND NO CONSTRUCTION AGAINST THE DRAFTER. PARTY -2 ACKNOWLEDGES AND AGREES THAT\nPARTY-2 HAD A FULL AND AMPLE OPPORTUNITY TO CONSULT LEGAL COUNSEL REGARDING THIS AGREEMENT PRIOR TO SIGNING, HAS FREELY\nAND VOLUNTARILY ENTERED INTO THIS AGREEMENT, AND HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION , INCLUDING, BUT NOT\nLIMITED TO, PARTY -2'S RIGHTS, OBLIGATIONS , AND APPLICABLE TERMS AND CONDITIONS . BOTH PARTIES ACKNOWLEDGE AND AGREE THAT\nANY INTERPRETATION OF THIS AGREEMENT MAY NOT BE CONSTRUED AGAINST PARTY-1 BECAUSE IT DRAFTED THIS AGREEMENT.\n1\n3. CONFIDENTIALITY .\n(a) Confidential Information Disclosures. In the performance of this Agreement Party-2 may receive the Confidential Information of Party-1 . Disclosures of\nConfidential Information made by Party-1 (or the "disclosing party") to Party-2 (or the "receiving party"), are pursuant to all terms and conditions of this\nAgreement. All Confidential Information of the disclosing party will remain the exclusive property of the disclosing party. The terms and conditions of this\nAgreement are deemed to be Confidential Information of both parties.\n(b) Exclusions. Confidential Information does not include information, data or materials that, as proved by written records: (i) Public Domain. Are or become a part\nof the public domain through no act or omission on the part of the receiving party and no violation of any obligation of nondisclosure by any third party; or (ii)\nIndependently Developed. Are independently developed by the receiving party without reference to the disclosing party's Confidential Information, as evidenced\nthrough written records created in the normal course of the receiving party's business; or (iii) Third Party Source. Are disclosed to the receiving party through a\nthird party source or series of sources without any violation of nondisclosure with respect to such information, data or materials by any source(s) in the series\n(however, such information only becomes Confidential Information once the receiving party is aware of such breach).\n(c) Duties. Without limiting any other obligations under this Agreement, the parties agree to the following specified duties: (i) Nondisclosure and Uses. The\nreceiving party must use commercially reasonable methods, at least as substantial as the methods it uses to protect its own confidential information, data and\nmaterials of a similar nature, to maintain the confidentiality of the Confidential Information by not copying, publishing, disclosing to third parties or using the\nConfidential Information; except the receiving party may use the Confidential Information in order to perform the receiving party's obligations or engage in\nactivities contemplated under the Business Purpose. A receiving party may not modify or delete any proprietary rights legend appearing in the disclosing party's\nConfidential Information. (ii) Disclosures to Agents and Subcontractors. A receiving party may share Confidential Information with: (a) its attorneys under an\nobligation of confidentiality and nondisclosure no less protective of the disclosing party's Confidential Information than the terms and conditions of this Agreement;\nand (b) its subcontractors pursuant to a written confidentiality agreement no less protective of the disclosing party's Confidential Information than this Agreement\n(a "Subcontractor Confidentiality Agreement"), provided that in no event may an attorney or subcontractor of a receiving party disclose Confidential Information to\nany other third party, with the exception of a Government Authority to which a disclosure may be made (for subcontractors, only pursuant to a provision in the\nSubcontractor Confidentiality Agreement identical to Section 2.4 (Disclosures Required by Law) of this Agreement), except that the attorney or subcontractor\nmust give the prior notice required therein to both the receiving party and the disclosing party. Receiving party agrees to assume all liability and responsibility for\nsuch attorneys'' and subcontractors' compliance with and breach of the terms and conditions of this Agreement as if such attorneys' and subcontractors' acts and\nomissions were receiving party's own. (iii) Notice. Upon discovery, receiving party agrees to provide disclosing party immediate telephonic and written notice of a\nbreach of: (a) any obligation of confidentiality and nondisclosure required hereunder prior to a disclosure; and (b) any Subcontractor Confidentiality Agreement.\n(iv) Return of Confidential Information. After a request by the disclosing party, and after termination or expiration of this Agreement, receiving party must within\nthirty (30) days return or destroy (and certify to such destruction in writing, such certification not to be unreasonably withheld or delayed) all Confidential\nInformation of the disclosing party, including, without limitation: (a) all tangible and electronic documents, drawings, materials, hardware, disks, tapes; and (b) all\ncopies, notes, summaries and excerpts of any of the foregoing; and (c) all Confidential Information in the possession of any third parties to whom receiving party\ndisclosed Confidential Information pursuant to this Agreement. Notwithstanding the foregoing, receiving party may retain Confidential Information as required by\napplicable Laws or orders of a Government Authority with jurisdiction over receiving party (the "Retention Requirements"), and any such uses or disclosures of\nConfidential Information by the receiving party will be limited to only those uses and disclosures mandated by the Retention Requirements.\nd) Disclosures Required by Law. In the event any Confidential Information is required to be disclosed by Law or order of any Government Authority having\njurisdiction over the receiving party (including as necessary for a party to assert a claim in a court of competent jurisdiction), before any such disclosure the\nreceiving party will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other\nrestriction regarding such disclosure. In the event such Confidential Information is disclosed in such circumstances, such Confidential Information shall continue\nto constitute Confidential Information in all other circumstances pursuant to this Agreement.\n4. NON -COMPETITION AND NON-SOLICITATION .\na) Non-Competition. Employee agrees to not, directly or indirectly, during the course of employment and for a period of one (1) year thereafter: (i) Customers.\nSolicit the trade or patronage of any customers or prospective customers or suppliers of Company with respect to any technologies, services, products, trade\nsecrets or other matters in which Company is actively involved or becomes involved during the term of Employee's employment with the Company; or (ii)\nCompetitors. Engage in any business or employment, or aid or endeavor to assist any third party, which is in competition with the products and/or services of\nCompany.\n(b) Non-Solicitation. Employee agrees to not, directly or indirectly, during the course of employment or for a period of one (1) year thereafter, solicit or aid third\nparties to solicit any employee or consultant of Company to leave their employment or engagement with Company in order to accept employment of any kind with\nany other person, including, but not limited to, any firm, company, partnership or corporation.\n(c) Acknowledgement. Employee acknowledges that the scope, geography, and time restrictions of this provision are reasonable. The parties intend that this\nprovision be enforced to the greatest extent permissible. Therefore, should a court of competent jurisdiction hold any portion of this provision to be invalid, this\nprovision is deemed automatically amended to the extent made necessary by the court's opinion, and Employee agrees to execute any and all documents\nnecessary to evidence such amendment. Further, in the event that Employee breaches this provision, then the time limitation of this provision is extended for a\nperiod of time equal to the period of time during which the breach occurred.\n2\n5. DEVELOPMENTS .\n(a) Definitions. "Developments" means, without limitation, all developments, inventions, "know-how", ideas, technological developments, discoveries,\nimprovements, works of authorship, semiconductor chips, mask works, databases, trademarks, service marks, logos, designs, slogans, trade names, domain\nnames, products, technical and statistical data, package designs, product designs, any other designs, models, trade secrets, computer hardware and software,\nalgorithms, improvements and devices. "Employee Developments" means all Developments conceived, developed or made by Party-2 , either alone or with\nothers, in whole or in part, during Party-2's employment with Party-1, which are useful in, or directly or indirectly relate to Party-1's business or business plans.\n(b) Grant and Assignment. Party-2 acknowledges and agrees that all Employee Developments are owned by Party-1 in the entirety as: (a) "works made for hire"\n(to the extent permitted by Law) in which Party-1 owns all copyrights as the author and all other intellectual property and proprietary rights, if legally applicable;\nand (b) the exclusive owner or assignee of all intellectual property and proprietary rights to the Employee Developments, including, but not limited to, all rights to\nthe Employee Developments' inventions, know-how and processes. To the extent that any works within the Employee Developments may not be considered\n"works made for hire" under the United States copyright Laws, and to the extent that any rights to the Employee Developments may be vested in Party-2 , Party-2\nhereby irrevocably grants and assigns, free and clear of any liens, claims or encumbrances, exclusively to Party-1 , each and every right in the Employee\nDevelopments throughout the world, including all copyright, patent, trade secret, and all other intellectual property and proprietary rights, together with all\nrenewals and extensions thereto, and the right to bring actions for past and future infringement. This grant and assignment may be confirmed in a form\nacceptable to Party-1.\n(c) Securing Rights. Party-2 acknowledges and agrees to take all appropriate steps at the request of Party-1, to secure for Party-1 the rights and benefits of\nParty-1 in and to the Employee Developments, to protect Party-1's rights in the Employee Developments, and to appoint Party-1 as Party-2's attorney-in-fact to\nenable Party-1 to record, file and prosecute any application for, and acquire, maintain and enforce, any intellectual property and proprietary rights and any other\nrights in the Employee Developments throughout the universe in all languages and in all media and forms of expression and communication now or later\ndeveloped. Party-2 agrees to waive any and all rights of attribution and integrity Party-2 may have in any of the Employee Developments under Section 17 U.S .C .\n§203 of the United States copyright Laws and any right of privacy or publicity for the Employee Developments identified for all uses as stated and contemplated.\n(d) Ownership. (i) Supplied Tools. Party-1 retains the exclusive ownership interest in all tools, materials, software, hardware, and any other equipment or supplies\nthat Party-1 may provide to Party-2 during Party-2's employment with Party-1 ("Supplied Tools"), and Party-2 acknowledges Party-1's exclusive ownership\ninterest in the Supplied Tools and agrees not to contest such interest. (ii) Limited Use. Party-2 may use the Supplied Tools only to perform Party-2's job\nresponsibilities during the Term. (iii) Disclosures. Party-2 agrees to disclose in writing to Party-1 , and comply with all Party-1 policies and procedures pertaining\nto, all Employee Developments.\n(e) Application for Waiver. Party-2 may apply to the chief executive officer of Party-1 from time to time for a waiver from Party-2's grant and assignment\nobligations for the Employee Developments. In deciding whether or not to grant such a waiver, Party-1 shall reasonably consider the following factors, any one of\nwhich may or may not be dispositive, but the decision to grant such a waiver is entirely within Party-1's discretion: (i) Whether any Supplied Tools, facility, or\nConfidential Information of Party-1 was used in developing the Employee Developments; (ii) Whether the Employee Developments were developed entirely\noutside of Party-2's job responsibilities; (iii) Whether the Employee Developments relate directly to Party-1's business; (iv) Whether the Employee Developments\nrelate to Party-1's actual or demonstrably anticipated research or development; and/or (v) Whether the Employee Developments result from any work performed\nby Party-2 for Party-1 .\n(f) Background Developments. (i) Applicability. Party-2 may provide certain Developments, created prior to the Term and Party-2's employment with Party-1,\nwhich underlie, pertain to, are embodied by or become embodied in any Employee Developments ("Background Developments"). (ii) License to Background\nDevelopments. However, in the event that any Employee Developments and any other Developments that incorporate elements which are Background\nDevelopments, Party-2 hereby grants and agrees to grant to Party-1, free and clear of an liens, claims or encumbrances, an irrevocable, perpetual, non -exclusive,\nworldwide, transferable, fully-paid up, royalty-free license in the Background Developments to permit Party-1 to exercise the rights, in both print and electronic\nformat, and any other format, to make, use, sell, have made and manufactured, have sold, offer for sale, design, reproduce, make derivative works from, publicly\ndisplay, publicly perform, and publicly distribute the Background Developments, as well as any new designs or derivations of the Background Developments,\nincluding, but not limited to, any and all moral rights of attribution and integrity, and to otherwise exploit all Background Developments. Party-2 has listed below\nthe only Background Developments that are or might be incorporated into the Employee Developments and any obligations owed to third parties regarding the\nBackground Developments (failure to list indicates there are none):\n3\n6. TERM AND SURVIVAL.\n(a) Term. The term of this Agreement (the "Term") commences on the Effective Date and ends at the end of Party-2's employment with Party-1.\n(b) Survival. The following captioned sections survive any termination, expiration or non-renewal of this Agreement: "Nondisclosure and Uses" (only for purposes\nof complying with Section 3.3.5 (Return of Confidential Information) and only for thirty (30) days or such longer period as necessary to comply with the Retention\nRequirements, also, if any personnel of a receiving party retains in their memory any specific contents of a disclosing party's Confidential Information, such\nspecific contents may not ever be disclosed to any third parties except under "Disclosures Required by Law"), "Return of Confidential Information", "Disclosures\nRequired by Law", "Survival", and "General". "Non-Competition" and "Non-Solicitation" survive for the length time stated therein.\n7. GENERAL .\nEntire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements\nregarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be\namended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge\nthat they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents,\nhas the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of this Agreement. Party-1 may not\nsubcontract any obligation under this Agreement without Party-2's prior written consent. Party-2 can subcontract without Party-1's consent. Each party is\nresponsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own. Governing\nLaw and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of Colorado, applicable to contracts wholly\nmade and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in Colorado, regardless of the inconvenience of\nthe forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations\nConvention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and\ninures to the benefit of the parties' successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in\nwhole or in part without the prior written consent of the other party (or parties). Any transfer, assignment, delegation or sublicense by a party without such prior\nwritten consent is invalid. However, any party may assign this Agreement to a third party purchasing: (a) majority control of the party's equity shares; or (b) all or\nsubstantially all of either (i) a party's assets or (ii) the assets of the party's relevant business unit under this Agreement. No Waivers, Cumulative Remedies. A\nparty's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly\nstated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive.\nSeverability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original\nintent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and\njurisdictions.\nNotices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery\nto the address set forth in this Agreement by each party.\nCaptions and Plural Terms.\nAll captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have\nthe same meaning in the plural and vice versa.\nIN WITNESS WHEREOF, the parties execute this Agreement as of the Effective Date. Each person who signs this Agreement below represents that such person\nis fully authorized to sign this Agreement on behalf of the applicable party.\nROBERT A. NEWSON\nNAME:\nFOR:\n4	Exhibit10.9\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Employee Confidentiality Agreement ("Agreement") is made as of May 17, 2010 (the "Effective Date") by and between Victoria Industries, Inc., a Nevada\ncorporation (to be named as Motor SportCountry Club Holdings, Inc.) ("Party-1") and RobertA. Newson, an individual ("Party-2"), and\nParty-2 is employed by Party-1 in the following role: (President and ChiefOperating Officer) (the "Business Purpose"). In the course of thatemployment regarding\nthe Business Purpose, Party-1 may disclose to Party-2 certain Confidential Information (as thatterm is later defined). By virtue ofthis Agreement, each party\nwishes to protectthe confidentiality of such Confidential Information.\nParty-1 and Party-2 therefore agree as follows:\n1. DEFINITIONS.\n(a) "Confidential Information" means private or confidential information, data or materials of Party-1, and all such private or confidential information, data or\nmaterials must be marked as "confidential" or "proprietary" to the disclosing party, however, for oral disclosures of information, data or materials, the disclosing\nparty may describe the disclosure within twenty (20) days thereafter in a written notice provided to Contractor, referencing the time, date, and receiving individuals\nfor the disclosure, at which point such described information, data or materials become Confidential Information of the disclosing party on a going forward basis\nfrom the date of receiving party's receiptofsuch letter.\n(b) "GovernmentAuthority" means any governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of\nthe United States ofAmerica or any other country or territory, or domestic or foreign state, prefecture, province, commonwealth, city, county, municipality,\nterritory, protectorate or possession. (c) "Law" means all Laws, statutes, ordinances, codes, regulations and other pronouncements having the effectof Law of\nany GovernmentAuthority.\n2. EMPLOYMENT.\n(a) No Employment Agreement. Party-2 acknowledges and agrees thatemploymentwith Party-1 is on an at-will basis, and either Party-1 or Party-2 may\nterminate the employment relationship at any time, for convenience, for any reason or no reason, and with or without cause. This Agreement is not an\nemployment agreement and is concerned only with this Agreement's subject matter.\n(b) OPPORTUNITY TO CONSULT WITH COUNSEL AND NO CONSTRUCTION AGAINST THE DRAFTER. PARTY-2 ACKNOWLEDGES AND AGREES THAT\nPARTY-2 HAD A FULL AND AMPLE OPPORTUNITY TO CONSULT LEGAL COUNSEL REGARDING THIS AGREEMENT PRIOR TO SIGNING, HAS FREELY\nAND VOLUNTARILY ENTERED INTO THIS AGREEMENT, AND HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION, INCLUDING, BUT NOT\nLIMITED TO, PARTY-2'S RIGHTS, OBLIGATIONS, AND APPLICABLE TERMS AND CONDITIONS. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT\nANY INTERPRETATION OF THIS AGREEMENT MAY NOT BE CONSTRUED AGAINST PARTY-l BECAUSE IT DRAFTED THIS AGREEMENT.\n \n3. CONFIDENTIALITY.\n(a) Confidential Information Disclosures. In the performance ofthis Agreement Party-2 may receive the Confidential Information of Party-1. Disclosures of\nConfidential Information made by Party-1 (or the "disclosing party") to Party-2 (or the "receiving party"), are pursuant to all terms and conditions ofthis\nAgreement. All Confidential Information of the disclosing party will remain the exclusive property of the disclosing party. The terms and conditions of this\nAgreement are deemed to be Confidential Information of both parties.\n(b) Exclusions. Confidential Information does not include information, data or materials that, as proved by written records: (i) Public Domain. Are or become a part\nof the public domain through no act or omission on the part of the receiving party and no violation of any obligation of nondisclosure by any third party; or (ii)\nIndependently Developed. Are independently developed by the receiving party without reference to the disclosing party's Confidential Information, as evidenced\nthrough written records created in the normal course of the receiving party's business; or (iii) Third Party Source. Are disclosed to the receiving party through a\nthird party source or series ofsources without any violation of nondisclosure with respectto such information, data or materials by any source(s) in the series\n(however, such information only becomes Confidential Information once the receiving party is aware ofsuch breach).\n(c) Duties. Without limiting any other obligations under this Agreement, the parties agree to the following specified duties: (i) Nondisclosure and Uses. The\nreceiving party must use commercially reasonable methods, at least as substantial as the methods it uses to protect its own confidential information, data and\nmaterials of a similar nature, to maintain the confidentiality of the Confidential Information by notcopying, publishing, disclosing to third parties or using the\nConfidential Information; except the receiving party may use the Confidential Information in order to perform the receiving party's obligations or engage in\nactivities contemplated under the Business Purpose. A receiving party may not modify or delete any proprietary rights legend appearing in the disclosing party's\nConfidential Information. (ii) Disclosures to Agents and Subcontractors. A receiving party may share Confidential Information with: (a) its attorneys under an\nobligation ofconfidentiality and nondisclosure no less protective of the disclosing party's Confidential Information than the terms and conditions of this Agreement;\nand (b) its subcontractors pursuant to a written confidentiality agreement no less protective of the disclosing party's Confidential Information than this Agreement\n(a "Subcontractor Confidentiality Agreement"), provided that in no event may an attorney or subcontractor of a receiving party disclose Confidential Information to\nany other third party, with the exception of a GovernmentAuthority to which a disclosure may be made (for subcontractors, only pursuantto a provision in the\nSubcontractor Confidentiality Agreement identical to Section 2.4 (Disclosures Required by Law) of this Agreement), except thatthe attorney or subcontractor\nmustgive the prior notice required therein to both the receiving party and the disclosing party. Receiving party agrees to assume all liability and responsibility for\nsuch attorneys" and subcontractors' compliance with and breach of the terms and conditions of this Agreement as ifsuch attorneys' and subcontractors' acts and\nomissions were receiving party's own. (iii) Notice. Upon discovery, receiving party agrees to provide disclosing party immediate telephonic and written notice of a\nbreach of: (a) any obligation of confidentiality and nondisclosure required hereunder prior to a disclosure; and (b) any Subcontractor Confidentiality Agreement.\n(iv) Return ofConfidential Information. After a request by the disclosing party, and after termination or expiration of this Agreement, receiving party mustwithin\nthirty (30) days return or destroy (and certify to such destruction in writing, such certification not to be unreasonably withheld or delayed) all Confidential\nInformation ofthe disclosing party, including, without limitation: (a) all tangible and electronic documents, drawings, materials, hardware, disks, tapes; and (b) all\ncopies, notes, summaries and excerpts of any ofthe foregoing; and (c) all Confidential Information in the possession of any third parties to whom receiving party\ndisclosed Confidential Information pursuant to this Agreement. Notwithstanding the foregoing, receiving party may retain Confidential Information as required by\napplicable Laws or orders of a GovernmentAuthority with jurisdiction over receiving party (the "Retention Requirements"), and any such uses or disclosures of\nConfidential Information by the receiving party will be limited to only those uses and disclosures mandated by the Retention Requirements.\nd) Disclosures Required by Law. In the event any Confidential Information is required to be disclosed by Law or order of any GovernmentAuthority having\njurisdiction over the receiving party (including as necessary for a party to assert a claim in a court ofcompetentjurisdiction), before any such disclosure the\nreceiving party will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other\nrestriction regarding such disclosure. In the eventsuch Confidential Information is disclosed in such circumstances, such Confidential Information shall continue\nto constitute Confidential Information in all other circumstances pursuantto this Agreement.\n4. NON-COMPETITION AND NON-SOLICITATION.\na) Non-Competition. Employee agrees to not, directly or indirectly, during the course of employment and for a period ofone (1) year thereafter: (i) Customers.\nSolicit the trade or patronage of any customers or prospective customers or suppliers ofCompany with respect to any technologies, services, products, trade\nsecrets or other matters in which Company is actively involved or becomes involved during the term of Employee's employment with the Company; or (ii)\nCompetitors. Engage in any business or employment, or aid or endeavor to assist any third party, which is in competition with the products and/or sen/ices of\nCompany.\n(b) Non-Solicitation. Employee agrees to not, directly or indirectly, during the course ofemployment or for a period of one (1) year thereafter, solicit or aid third\nparties to solicit any employee or consultant ofCompany to leave their employmentor engagementwith Company in order to acceptemployment of any kind with\nany other person, including, but not limited to, any firm, company, partnership or corporation.\n(c) Acknowledgement. Employee acknowledges that the scope, geography, and time restrictions of this provision are reasonable. The parties intend thatthis\nprovision be enforced to the greatest extent permissible. Therefore, should a court ofcompetentjurisdiction hold any portion of this provision to be invalid, this\nprovision is deemed automatically amended to the extent made necessary by the court's opinion, and Employee agrees to execute any and all documents\nnecessary to evidence such amendment. Further, in the event that Employee breaches this provision, then the time limitation ofthis provision is extended for a\nperiod oftime equal to the period oftime during which the breach occurred.\n \n5. DEVELOPMENTS.\n(a) Definitions. "Developments" means, withoutlimitation, all developments, inventions, "know-how", ideas, technological developments, discoveries,\nimprovements, works of authorship, semiconductor chips, mask works, databases, trademarks, service marks, logos, designs, slogans, trade names, domain\nnames, products, technical and statistical data, package designs, productdesigns, any other designs, models, trade secrets, computer hardware and software,\nalgorithms, improvements and devices. "E mployee Developments" means all Developments conceived, developed or made by Party-2, either alone or with\nothers, in whole or in part, during Party-2's employmentwith Party-1, which are useful in, or directly or indirectly relate to Party-1's business or business plans.\n(b) Grantand Assignment. Party-2 acknowledges and agrees that all Employee Developments are owned by Party-l in the entirety as: (a) "works made for hire"\n(to the extent permitted by Law) in which Party-l owns all copyrights as the author and all other intellectual property and proprietary rights, if legally applicable;\nand (b) the exclusive owner or assignee of all intellectual property and proprietary rights to the Employee Developments, including, but not limited to, all rights to\nthe Employee Developments' inventions, know-how and processes. To the extent that any works within the Employee Developments may not be considered\n"works made for hire" under the United States copyright Laws, and to the extent that any rights to the Employee Developments may be vested in Party-2, Party-2\nhereby irrevocably grants and assigns, free and clear of any liens, claims or encumbrances, exclusively to Party-1, each and every right in the Employee\nDevelopments throughout the world, including all copyright, patent, trade secret, and all other intellectual property and proprietary rights, together with all\nrenewals and extensions thereto, and the right to bring actions for past and future infringement. This grant and assignment may be confirmed in a form\nacceptable to Party-l.\n(c) Securing Rights. Party-2 acknowledges and agrees to take all appropriate steps atthe requestof Party-1, to secure for Party-l the rights and benefits of\nParty-l in and to the Employee Developments, to protect Party-1's rights in the Employee Developments, and to appoint Party-l as Party-2's attorney-in-factto\nenable Party-l to record, file and prosecute any application for, and acquire, maintain and enforce, any intellectual property and proprietary rights and any other\nrights in the Employee Developments throughoutthe universe in all languages and in all media and forms of expression and communication now or later\ndeveloped. Party-2 agrees to waive any and all rights ofattribution and integrity Party-2 may have in any ofthe Employee Developments under Section 17 U.S.C.\n§203 of the United States copyright Laws and any right of privacy or publicity for the Employee Developments identified for all uses as stated and contemplated.\n(d) Ownership. (i) Supplied Tools. Party-l retains the exclusive ownership interest in all tools, materials, software, hardware, and any other equipmentor supplies\nthat Party-l may provide to Party-2 during Party-2's employmentwith Party-1("Supplied Tools"), and Party-2 acknowledges Party-1's exclusive ownership\ninterest in the Supplied Tools and agrees not to contest such interest. (ii) Limited Use. Party-2 may use the Supplied Tools only to perform Party-2's job\nresponsibilities during the Term. (iii) Disclosures. Party-2 agrees to disclose in writing to Party-1, and comply with all Party-l policies and procedures pertaining\nto, all Employee Developments.\n(e) Application for Waiver. Party-2 may apply to the chief executive officer of Party-l from time to time for a waiver from Party-2's grant and assignment\nobligations for the Employee Developments. In deciding whether or not to grantsuch a waiver, Party-l shall reasonably consider the following factors, any one of\nwhich may or may not be dispositive, butthe decision to grantsuch a waiver is entirely within Party-1's discretion: (i) Whether any Supplied Tools, facility, or\nConfidential Information of Party-l was used in developing the Employee Developments; (ii) Whether the Employee Developments were developed entirely\noutside of Party-2's job responsibilities; (iii) Whether the Employee Developments relate directly to Party-1's business; (iv) Whether the Employee Developments\nrelate to Party-1's actual or demonstrably anticipated research or development; and/or (v) Whether the Employee Developments result from any work performed\nby Party-2 for Party-1.\n(f) Background Developments. (i) Applicability. Party-2 may provide certain Developments, created prior to the Term and Party-2's employmentwith Party-l,\nwhich underlie, pertain to, are embodied by or become embodied in any Employee Developments ("Background Developments"). (ii) License to Background\nDevelopments. However, in the event that any Employee Developments and any other Developments that incorporate elements which are Background\nDevelopments, Party-2 hereby grants and agrees to grant to Party-l, free and clear ofan liens, claims or encumbrances, an irrevocable, perpetual, non-exclusive,\nworldwide, transferable, fully-paid up, royalty-free license in the Background Developments to permit Party-l to exercise the rights, in both print and electronic\nformat, and any other format, to make, use, sell, have made and manufactured, have sold, offer for sale, design, reproduce, make derivative works from, publicly\ndisplay, publicly perform, and publicly distribute the Background Developments, as well as any new designs or derivations of the Background Developments,\nincluding, but not limited to, any and all moral rights of attribution and integrity, and to otherwise exploit all Background Developments. Party-2 has listed below\nthe only Background Developments that are or might be incorporated into the Employee Developments and any obligations owed to third parties regarding the\nBackground Developments (failure to listindicates there are none):\n \n6. TERM AND SURVIVAL.\n(a) Term. The term ofthis Agreement(the "Term") commences on the Effective Date and ends atthe end of Party-2's employmentwith Party-l.\n(b) Sun/ival. The following captioned sections survive any termination, expiration or non-renewal ofthis Agreement: "Nondisclosure and Uses" (only for purposes\nof complying with Section 3.3.5 (Return of Confidential Information) and only for thirty (30) days or such longer period as necessary to comply with the Retention\nRequirements, also, if any personnel of a receiving party retains in their memory any specific contents of a disclosing party's Confidential Information, such\nspecific contents may notever be disclosed to any third parties except under "Disclosures Required by Law"), "Return ofConfidential Information", "Disclosures\nRequired by Law", "Sun/ival", and "General". "Non-Competition" and "Non-Solicitation" survive forthe length time stated therein.\n7. GENERAL.\nEntire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements\nregarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be\namended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge\nthat they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents,\nhas the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of this Agreement. Party-l may not\nsubcontract any obligation under this Agreementwithout Party-2's prior written consent. Party-2 can subcontractwithout Party-1's consent. Each party is\nresponsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own. Governing\nLaw and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws ofColorado, applicable to contracts wholly\nmade and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in Colorado, regardless ofthe inconvenience of\nthe forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree thatthe United Nations\nConvention on Contracts for the International Sale ofGoods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and\ninures to the benefit of the parties' successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in\nwhole or in partwithout the prior written consentof the other party (or parties). Any transfer, assignment, delegation or sublicense by a party without such prior\nwritten consent is invalid. However, any party may assign this Agreementto a third party purchasing: (a) majority control ofthe party's equity shares; or (b) all or\nsubstantially all ofeither (i) a party's assets or (ii) the assets ofthe party's relevant business unit underthis Agreement. No Waivers, Cumulative Remedies. A\nparty's failure to insist upon strict performance of any provision ofthis Agreement is not a waiver of any of its rights under this Agreement. Except if expressly\nstated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive.\nSeverability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original\nintentof the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and\njurisdictions.\nNotices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery\nto the address set forth in this Agreement by each party.\nCaptions and Plural Terms.\nAll captions are for purposes ofconvenience only and are notto be used in interpretation or enforcement of this Agreement. Terms defined in the singular have\nthe same meaning in the plural and vice versa.\nIN WITN ESS WHE REOF, the parties execute this Agreement as of the Effective Date. Each person who signs this Agreement below represents thatsuch person\nis fully authorized to sign this Agreementon behalf of the applicable party.\nROBERTA.NEWSON NAME:\nFOR:\n	E xhibit 10.9\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis E mployee Confidentiality Agreement ("Agreement") is made as of May 17, 2010 (the "Effective Date") by and between Victoria Industries, Inc., a Nevada\ncorporation (to be named as Motor S port Country Club Holdings, Inc.) "Party-1") and Robert A. Newson, an individual ("Party-2"), and\nParty-2 is employed by Party-1 in the following role: resident and Chief Operating Officer) (the "Business Purpose"). In the course of that employment regarding\nthe Business urpose, Party-1 may disclose to Party-2 certain Confidential Information (as that term is later defined). By virtue of this Agreement, each party\nwishes to protect the confidentiality of such Confidential Information.\nParty-1 and Party-2 therefore agree as follows:\n1. DEFINITIONS.\n(a) "Confidential Information" means private or confidential information, data or materials of Party-1, and all such private or confidential information, data or\nmaterials must be marked as "confidential" or "proprietary" to the disclosing party, however, for oral disclosures of information, data or materials, the disclosing\nparty may describe the disclosure within twenty (20) days thereafter in a written notice provided to Contractor, referencing the time, date, and receiving individuals\nfor the disclosure, at which point such described information, data or materials become Confidential Information of the disclosing party on a going forward basis\nfrom the date of receiving party's receipt of such letter.\n(b) "Government Authority" means any governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of\nthe United States of America or any other country or territory, or domestic or foreign state, prefecture, province, commonwealth, city, county, municipality,\nterritory, protectorate or possession. (c) "Law" means all Laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of Law of\nany Government Authority.\n2. EMPLOYMENT.\n(a) No mployment Agreement. Party-2 acknowledges and agrees that employment with Party-1 is on an at-will basis, and either Party-1 or Party-2 may\nterminate the employment relationship at any time, for convenience, for any reason or no reason, and with or without cause. This Agreement is not an\nemployment agreement and is concerned only with this Agreement's subject matter.\n(b) OPPORTUNITY TO CONSULT WITH COUNSEL AND NO CONSTRUCTION AGAINST THE DRAFTER. PARTY-2 ACKNOWLEDGES AND AGREES THAT\nPARTY-2 HAD A FULL AND AMPLE OPPORTUNITY TO CONSULT LEGAL COUNSEL REGARDING THIS AGREEMENT PRIOR TO SIGNING, HAS FREELY\nAND VOLUNTARILY ENTERED INTO THIS AGREEMENT, AND HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION, INCLUDING, BUT NOT\nLIMITED TO, PARTY-2'S RIGHTS, OBLIGATIONS AND APPLICABLE TERMS AND CONDITIONS. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT\nANY INTERPRETATION OF THIS AGREEMENT MAY NOT BE CONSTRUED AGAINST PARTY-1 ECAUSE IT DRAFTED THIS AGREEMENT.\n1\n3. CONFIDENTIALITY.\n(a) Confidential Information Disclosures. In the performance of this Agreement arty-2 may receive the Confidential Information of Party-1. Disclosures of\nConfidential Information made by arty-1 (or the "disclosing party") to Party-2 (or the "receiving party"), are pursuant to all terms and conditions of this\nAgreement. All Confidential Information of the disclosing party wil remain the exclusive property of the disclosing party. The terms and conditions of this\nAgreement are deemed to be Confidential Information of both parties.\n(b) Exclusions. Confidential Information does not include information, data or materials that, as proved by written records: (i) ublic Domain. Are or become a part\nof the public domain through no act or omission on the part of the receiving party and no violation of any obligation of nondisclosure by any third party; or (ii)\nIndependently Developed. Are independently developed by the receiving party without reference to the disclosing party's Confidential Information, as evidenced\nthrough written records created in the normal course of the receiving party's business; or (iii) Third Party Source. Are disclosed to the receiving party through a\nthird party source or series of sources without any violation of nondisclosure with respect to such information, data or materials by any source(s) in the series\n(however, such information only becomes Confidential Information once the receiving party is aware of such breach).\n(c) Duties. Without limiting any other obligations under this Agreement, the parties agree to the following specified duties: (i) Nondisclosure and Uses. The\nreceiving party must use commercially reasonable methods, at least as substantial as the methods it uses to protect its own confidential information, data and\nmaterials of a similar nature, to maintain the confidentiality of the Confidentia Information by not copying, publishing, disclosing to third parties or using the\nConfidential Information; except the receiving party may use the Confidentia Information in order to perform the receiving party's obligations or engage in\nactivities contemplated under the Business Purpose. A receiving party may not modify or delete any proprietary rights legend appearing in the disclosing party's\nConfidential Information. (ii) Disclosures to Agents and Subcontractors. A receiving party may share Confidential Information with: (a) its attorneys under an\nobligation of confidentiality and nondisclosure no less protective of the disclosing party's Confidential Information than the terms and conditions of this Agreement;\nand (b) its subcontractors pursuant to a written confidentiality agreement no less protective of the disclosing party's Confidential Information than this Agreement\n(a "Subcontractor Confidentiality Agreement"'), provided that in no event may an attorney or subcontractor of a receiving party disclose Confidential Information to\nany other third party, with the exception of a Government Authority to which a disclosure may be made (for subcontractors, only pursuant to a provision in the\nSubcontractor Confidentiality Agreement identical to Section 2.4 (Disclosures R equired by Law) of this Agreement), except that the attorney or subcontractor\nmust give the prior notice required therein to both the receiving party and the disclosing party. eceiving party agrees to assume all liability and responsibility for\nsuch attorneys" and subcontractors' compliance with and breach of the terms and conditions of this Agreement as if such attorneys' and subcontractors' acts and\nomissions were receiving party's own. (iii) Notice. pon discovery, receiving party agrees to provide disclosing party immediate telephonic and written notice of\na\nbreach of: (a) any obligation of confidentiality and nondisclosure required hereunder prior to a disclosure; and (b) any Subcontractor Confidentiality Agreement.\n(iv) Return of Confidential Information. After a request by the disclosing party, and after termination or expiration of this Agreement, receiving party must within\nthirty (30) days return or destroy (and certify to such destruction in writing, such certification not to be unreasonably withheld or delayed) all Confidential\nInformation of the disclosing party, including, without limitation: (a) all tangible and electronic documents, drawings, materials, hardware, disks, tapes; and (b) all\ncopies, notes, summaries and excerpts of any of the foregoing; and (c) all Confidential Information in the possession of any third parties to whom receiving party\ndisclosed Confidentia Information pursuant to this Agreement. Notwithstanding the foregoing, receiving party may retain Confidential Information as required by\napplicable Laws or orders of a Government Authority with jurisdiction over receiving party (the "Retention Requirements"), and any such uses or disclosures of\nConfidential Information by the receiving party will be limited to only those uses and disclosures mandated by the etention Requirements.\nd) Disclosures R equired by Law. In the event any Confidential Information is required to be disclosed by Law or order of any G overnment Authority having\njurisdiction over the receiving party (including as necessary for a party to assert a claim in a court of competent jurisdiction), before any such disclosure the\nreceiving party will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other\nrestriction regarding such disclosure. In the event such Confidential Information is disclosed in such circumstances, such Confidential Information shal continue\nto constitute Confidential Information in all other circumstances pursuant to this Agreement.\n4. NON-COMPETITION AND NON-SOLICITATION.\na) Non-Competition. Employee agrees to not, directly or indirectly, during the course of employment and for a period of one (1) year thereafter: (i) Customers.\nSolicit the trade or patronage of any customers or prospective customers or suppliers of Company with respect to any technologies, services, products, trade\nsecrets or other matters in which Company is actively involved or becomes involved during the term of mployee's employment with the Company; or (ii)\nCompetitors. Engage in any business or employment, or aid or endeavor to assist any third party, which is in competition with the products and/or services of\nCompany.\n(b) Non-Solicitation. mployee agrees to not, directly or indirectly, during the course of employment or for a period of one (1) year thereafter, solicit or aid third\nparties to solicit any employee or consultant of ompany to leave their employment or engagement with Company in order to accept employment of any kind with\nany other person, including, but not limited to, any firm, company, partnership or corporation.\n(c) Acknowledgement. Employee acknowledges that the scope, geography, and time restrictions of this provision are reasonable. The parties intend that this\nprovision be enforced to the greatest extent permissible. Therefore, should a court of competent jurisdiction hold any portion of this provision to be invalid, this\nprovision is deemed automatically amended to the extent made necessary by the court's opinion, and mployee agrees to execute any and all documents\nnecessary to evidence such amendment. F urther in the event that Employee breaches this provision, then the time limitation of this provision is extended for a\nperiod of time equal to the period of time during which the breach occurred.\n2\n5. DEVELOPMENTS.\n(a) Definitions. "Developments" means, without limitation, all developments, inventions, "know-how", ideas, technological developments, discoveries,\nimprovements, works of authorship, semiconductor chips, mask works, databases, trademarks, service marks, logos, designs, slogans, trade names, domain\nnames, products, technical and statistical data, package designs, product designs, any other designs, models, trade secrets, computer hardware and software,\nalgorithms, improvements and devices. "Employee Developments" means all Developments conceived, developed or made by Party-2, either alone or with\nothers, in whole or in part, during Party-2's employment with Party-1, which are usefu in, or directly or indirectly relate to Party-1's business or business plans.\n(b) Grant and Assignment. Party-2 acknowledges and agrees that all mployee Developments are owned by arty-1 in the entirety as (a) "works made for hire"\n(to the extent permitted by Law) in which Party-1 owns all copyrights as the author and all other intellectual property and proprietary rights, if legally applicable;\nand (b) the exclusive owner or assignee of all intellectual property and proprietary rights to the Employee Developments, including, but not limited to, all rights\nto\nthe Employee Developments' inventions, know-how and processes. To the extent that any works within the Employee Developments may not be considered\n"works made for hire" under the United s tates copyright Laws, and to the extent that any rights to the Employee Developments may be vested in Party-2, Party-2\nhereby irrevocably grants and assigns, free and clear of any liens, claims or encumbrances, exclusively to Party-1, each and every right in the mployee\nDevelopments throughout the world, including all copyright, patent, trade secret, and all other intellectual property and proprietary rights, together with all\nrenewals and extensions thereto, and the right to bring actions for past and future infringement. This grant and assignment may be confirmed in a form\nacceptable to Party-1.\n(c)\nSecuring Rights. Party-2 acknowledges and agrees to take all appropriate steps at the request of arty-1 to secure for arty-1 the rights and benefits of\nParty-1 in and to the Employee Developments, to protect Party-1's rights in the Employee Developments, and to appoint arty-1 as Party-2's attorney-in-fact to\nenable Party-1 to record, file and prosecute any application for, and acquire, maintain and enforce, any intellectual property and proprietary rights and any other\nrights in the Employee Developments throughout the universe in all languages and in all media and forms of expression and communication now or later\ndeveloped. Party-2 agrees to waive any and all rights of attribution and integrity Party-2 may have in any of the mployee Developments under Section 17 U.S.C.\n$203 of the United States copyright Laws and any right of privacy or publicity for the mployee Developments identified for all uses as stated and contemplated.\n(d) Ownership. (i) upplied Tools. Party-1 retains the exclusive ownership interest in all tools, materials, software, hardware, and any other equipment or supplies\nthat Party-1 may provide to Party-2 during Party-2's employment with Party-1 ("Supplied Tools"), and Party-2 acknowledges Party-1's exclusive ownership\ninterest in the Supplied Tools and agrees not to contest such interest. (ii) Limited Use. Party-2 may use the Supplied Tools only to perform Party-2's job\nresponsibilities during the Term. (iii) Disclosures. Party-2 agrees to disclose in writing to Party-1, and comply with all Party-1 policies and procedures pertaining\nto, all E mployee Developments.\n(e) Application for Waiver. Party-2 may apply to the chief executive officer of Party-1 from time to time for a waiver from arty-2's grant and assignment\nobligations for the Employee Developments. In deciding whether or not to grant such a waiver, Party-1 shall reasonably consider the following factors, any one\nof\nwhich may or may not be dispositive but the decision to grant such a waiver is entirely within Party-1's discretion: (i) Whether any Supplied Tools, facility, or\nConfidentia Information of arty-1 was used in developing the Employee Developments; (ii) Whether the mployee Developments were developed entirely\noutside of Party-2's job responsibilities; (iii) Whether the mployee Developments relate directly to Party-1's business; (iv) Whether the mployee Developments\nrelate to Party-1's actual or demonstrably anticipated research or development; and/or (v) Whether the Employee Developments result from any work performed\nby Party-2 for Party-1\n(f) Background Developments. (i) Applicability. Party-2 may provide certain Developments, created prior to the Term and Party-2's employment with Party-1\nwhich underlie, pertain to, are embodied by or become embodied in any E mployee Developments Background Developments"). (ii) License to Background\nDevelopments. However, in the event that any E mployee Developments and any other Developments that incorporate elements which are Background\nDevelopments, Party-2 hereby grants and agrees to grant to Party-1 free and clear of an liens, claims or encumbrances, an irrevocable, perpetual, non-exclusive,\nworldwide, transferable, fully-paid up, royalty-free license in the Background Developments to permit arty-1 to exercise the rights, in both print and electronic\nformat, and any other format, to make, use, sell, have made and manufactured, have sold, offer for sale, design, reproduce, make derivative works from publicly\ndisplay, publicly perform and publicly distribute the Background Developments, as well as any new designs or derivations of the Background Developments,\nincluding, but not limited to, any and all moral rights of attribution and integrity, and to otherwise exploit all Background Developments. Party-2 has listed below\nthe only Background Developments that are or might be incorporated into the Employee Developments and any obligations owed to third parties regarding the\nBackground Developments (failure to list indicates there are none):\n3\n6. TERM AND SURVIVAL.\n(a) Term. The term of this Agreement (the "Term") commences on the ffective Date and ends at the end of Party-2's employment with Party-1.\n(b) Survival. The following captioned sections survive any termination, expiration or non-renewal of this Agreement "Nondisclosure and Uses" (only for purposes\nof complying with S ection 3.3.5 (Return of Confidential Information) and only for thirty (30) days or such longer period as necessary to comply with the Retention\nRequirements, also, if any personnel of a receiving party retains in their memory any specific contents of a disclosing party's Confidential Information, such\nspecific contents may not ever be disclosed to any third parties except under "Disclosures equired by Law") "Return of Confidential Information", "Disclosures\nRequired by Law", "Survival", and "General". Non-Competition" and "Non-Solicitation" survive for the length time stated therein.\n7. GENERAL.\nE\nntire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements\nregarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be\namended only in a written document, signed by both parties. Independent Contractors, Third arty Beneficiaries, and Subcontractors. The parties acknowledge\nthat they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents,\nhas the power or authority to bind or obligate another party. xcept if expressly stated, no third party is a beneficiary of this Agreement. arty-1 may not\nsubcontract any obligation under this Agreement without Party-2's prior written consent. arty-2 can subcontract without arty-1's consent. Each party is\nresponsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own. Governing\nLaw and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of Colorado, applicable to contracts wholly\nmade and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in Colorado, regardless of the inconvenience of\nthe forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations\nConvention on Contracts for the International Sale of oods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and\ninures to the benefit of the parties' successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in\nwhole or in part without the prior written consent of the other party (or parties). Any transfer, assignment, delegation or sublicense by a party without such prior\nwritten consent is invalid. However, any party may assign this Agreement to a third party purchasing (a) majority control of the party's equity shares; or (b) all or\nsubstantially all of either (i) a party's assets or (ii) the assets of the party's relevant business unit under this Agreement. No Waivers, Cumulative emedies. A\nparty's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly\nstated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive.\nSeverability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original\nintent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and\njurisdictions\nNotices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery\nto the address set forth in this Agreement by each party.\nCaptions and Plural Terms.\nAll captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have\nthe same meaning in the plural and vice versa.\nIN WITNESS WHEREOF, the parties execute this Agreement as of the Effective Date. Each person who signs this Agreement below represents that such person\nis fully authorized to sign this Agreement on behalf of the applicable party.\nROBERT A. NEWSON\nNAME:\nFOR:\n4	Exhibit 10.9\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Employee Confidentiality Agreement ("Agreement") is made as of May 17, 2010 (the "Effective Date") by and between Victoria Industries, Inc., a Nevada\ncorporation (to be named as Motor Sport Country Club Holdings, Inc.) ("Party-1") and Robert A. Newson, an individual ("Party-2"), and\nParty-2 is employed by Party-1 in the following role: (President and Chief Operating Officer) (the "Business Purpose"). In the course of that employment regarding\nthe Business Purpose, Party-1 may disclose to Party-2 certain Confidential Information (as that term is later defined). By virtue of this Agreement, each party\nwishes to protect the confidentiality of such Confidential Information.\nParty-1 and Party-2 therefore agree as follows:\n1. DEFINITIONS.\n(a) "Confidential Information" means private or confidential information, data or materials of Party-1, and all such private or confidential information, data or\nmaterials must be marked as "confidential" or "proprietary" to the disclosing party, however, for oral disclosures of information, data or materials, the disclosing\nparty may describe the disclosure within twenty (20) days thereafter in a written notice provided to Contractor, referencing the time, date, and receiving individuals\nfor the disclosure, at which point such described information, data or materials become Confidential Information of the disclosing party on a going forward basis\nfrom the date of receiving party's receipt of such letter.\n(b) "Government Authority" means any governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of\nthe United States of America or any other country or territory, or domestic or foreign state, prefecture, province, commonwealth, city, county, municipality,\nterritory, protectorate or possession. (c) "Law" means all Laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of Law of\nany Government Authority.\n2. EMPLOYMENT.\n(a) No Employment Agreement. Party-2 acknowledges and agrees that employment with Party-1 is on an at-will basis, and either Party-1 or Party-2 may\nterminate the employment relationship at any time, for convenience, for any reason or no reason, and with or without cause. This Agreement is not an\nemployment agreement and is concerned only with this Agreement's subject matter.\n(b) OPPORTUNITY TO CONSULT WITH COUNSEL AND NO CONSTRUCTION AGAINST THE DRAFTER. PARTY -2 ACKNOWLEDGES AND AGREES THAT\nPARTY-2 HAD A FULL AND AMPLE OPPORTUNITY TO CONSULT LEGAL COUNSEL REGARDING THIS AGREEMENT PRIOR TO SIGNING, HAS FREELY\nAND VOLUNTARILY ENTERED INTO THIS AGREEMENT, AND HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION , INCLUDING, BUT NOT\nLIMITED TO, PARTY -2'S RIGHTS, OBLIGATIONS , AND APPLICABLE TERMS AND CONDITIONS . BOTH PARTIES ACKNOWLEDGE AND AGREE THAT\nANY INTERPRETATION OF THIS AGREEMENT MAY NOT BE CONSTRUED AGAINST PARTY-1 BECAUSE IT DRAFTED THIS AGREEMENT.\n1\n3. CONFIDENTIALITY .\n(a) Confidential Information Disclosures. In the performance of this Agreement Party-2 may receive the Confidential Information of Party-1 . Disclosures of\nConfidential Information made by Party-1 (or the "disclosing party") to Party-2 (or the "receiving party"), are pursuant to all terms and conditions of this\nAgreement. All Confidential Information of the disclosing party will remain the exclusive property of the disclosing party. The terms and conditions of this\nAgreement are deemed to be Confidential Information of both parties.\n(b) Exclusions. Confidential Information does not include information, data or materials that, as proved by written records: (i) Public Domain. Are or become a part\nof the public domain through no act or omission on the part of the receiving party and no violation of any obligation of nondisclosure by any third party; or (ii)\nIndependently Developed. Are independently developed by the receiving party without reference to the disclosing party's Confidential Information, as evidenced\nthrough written records created in the normal course of the receiving party's business; or (iii) Third Party Source. Are disclosed to the receiving party through a\nthird party source or series of sources without any violation of nondisclosure with respect to such information, data or materials by any source(s) in the series\n(however, such information only becomes Confidential Information once the receiving party is aware of such breach).\n(c) Duties. Without limiting any other obligations under this Agreement, the parties agree to the following specified duties: (i) Nondisclosure and Uses. The\nreceiving party must use commercially reasonable methods, at least as substantial as the methods it uses to protect its own confidential information, data and\nmaterials of a similar nature, to maintain the confidentiality of the Confidential Information by not copying, publishing, disclosing to third parties or using the\nConfidential Information; except the receiving party may use the Confidential Information in order to perform the receiving party's obligations or engage in\nactivities contemplated under the Business Purpose. A receiving party may not modify or delete any proprietary rights legend appearing in the disclosing party's\nConfidential Information. (ii) Disclosures to Agents and Subcontractors. A receiving party may share Confidential Information with: (a) its attorneys under an\nobligation of confidentiality and nondisclosure no less protective of the disclosing party's Confidential Information than the terms and conditions of this Agreement;\nand (b) its subcontractors pursuant to a written confidentiality agreement no less protective of the disclosing party's Confidential Information than this Agreement\n(a "Subcontractor Confidentiality Agreement"), provided that in no event may an attorney or subcontractor of a receiving party disclose Confidential Information to\nany other third party, with the exception of a Government Authority to which a disclosure may be made (for subcontractors, only pursuant to a provision in the\nSubcontractor Confidentiality Agreement identical to Section 2.4 (Disclosures Required by Law) of this Agreement), except that the attorney or subcontractor\nmust give the prior notice required therein to both the receiving party and the disclosing party. Receiving party agrees to assume all liability and responsibility for\nsuch attorneys'' and subcontractors' compliance with and breach of the terms and conditions of this Agreement as if such attorneys' and subcontractors' acts and\nomissions were receiving party's own. (iii) Notice. Upon discovery, receiving party agrees to provide disclosing party immediate telephonic and written notice of a\nbreach of: (a) any obligation of confidentiality and nondisclosure required hereunder prior to a disclosure; and (b) any Subcontractor Confidentiality Agreement.\n(iv) Return of Confidential Information. After a request by the disclosing party, and after termination or expiration of this Agreement, receiving party must within\nthirty (30) days return or destroy (and certify to such destruction in writing, such certification not to be unreasonably withheld or delayed) all Confidential\nInformation of the disclosing party, including, without limitation: (a) all tangible and electronic documents, drawings, materials, hardware, disks, tapes; and (b) all\ncopies, notes, summaries and excerpts of any of the foregoing; and (c) all Confidential Information in the possession of any third parties to whom receiving party\ndisclosed Confidential Information pursuant to this Agreement. Notwithstanding the foregoing, receiving party may retain Confidential Information as required by\napplicable Laws or orders of a Government Authority with jurisdiction over receiving party (the "Retention Requirements"), and any such uses or disclosures of\nConfidential Information by the receiving party will be limited to only those uses and disclosures mandated by the Retention Requirements.\nd) Disclosures Required by Law. In the event any Confidential Information is required to be disclosed by Law or order of any Government Authority having\njurisdiction over the receiving party (including as necessary for a party to assert a claim in a court of competent jurisdiction), before any such disclosure the\nreceiving party will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other\nrestriction regarding such disclosure. In the event such Confidential Information is disclosed in such circumstances, such Confidential Information shall continue\nto constitute Confidential Information in all other circumstances pursuant to this Agreement.\n4. NON -COMPETITION AND NON-SOLICITATION .\na) Non-Competition. Employee agrees to not, directly or indirectly, during the course of employment and for a period of one (1) year thereafter: (i) Customers.\nSolicit the trade or patronage of any customers or prospective customers or suppliers of Company with respect to any technologies, services, products, trade\nsecrets or other matters in which Company is actively involved or becomes involved during the term of Employee's employment with the Company; or (ii)\nCompetitors. Engage in any business or employment, or aid or endeavor to assist any third party, which is in competition with the products and/or services of\nCompany.\n(b) Non-Solicitation. Employee agrees to not, directly or indirectly, during the course of employment or for a period of one (1) year thereafter, solicit or aid third\nparties to solicit any employee or consultant of Company to leave their employment or engagement with Company in order to accept employment of any kind with\nany other person, including, but not limited to, any firm, company, partnership or corporation.\n(c) Acknowledgement. Employee acknowledges that the scope, geography, and time restrictions of this provision are reasonable. The parties intend that this\nprovision be enforced to the greatest extent permissible. Therefore, should a court of competent jurisdiction hold any portion of this provision to be invalid, this\nprovision is deemed automatically amended to the extent made necessary by the court's opinion, and Employee agrees to execute any and all documents\nnecessary to evidence such amendment. Further, in the event that Employee breaches this provision, then the time limitation of this provision is extended for a\nperiod of time equal to the period of time during which the breach occurred.\n2\n5. DEVELOPMENTS .\n(a) Definitions. "Developments" means, without limitation, all developments, inventions, "know-how", ideas, technological developments, discoveries,\nimprovements, works of authorship, semiconductor chips, mask works, databases, trademarks, service marks, logos, designs, slogans, trade names, domain\nnames, products, technical and statistical data, package designs, product designs, any other designs, models, trade secrets, computer hardware and software,\nalgorithms, improvements and devices. "Employee Developments" means all Developments conceived, developed or made by Party-2 , either alone or with\nothers, in whole or in part, during Party-2's employment with Party-1, which are useful in, or directly or indirectly relate to Party-1's business or business plans.\n(b) Grant and Assignment. Party-2 acknowledges and agrees that all Employee Developments are owned by Party-1 in the entirety as: (a) "works made for hire"\n(to the extent permitted by Law) in which Party-1 owns all copyrights as the author and all other intellectual property and proprietary rights, if legally applicable;\nand (b) the exclusive owner or assignee of all intellectual property and proprietary rights to the Employee Developments, including, but not limited to, all rights to\nthe Employee Developments' inventions, know-how and processes. To the extent that any works within the Employee Developments may not be considered\n"works made for hire" under the United States copyright Laws, and to the extent that any rights to the Employee Developments may be vested in Party-2 , Party-2\nhereby irrevocably grants and assigns, free and clear of any liens, claims or encumbrances, exclusively to Party-1 , each and every right in the Employee\nDevelopments throughout the world, including all copyright, patent, trade secret, and all other intellectual property and proprietary rights, together with all\nrenewals and extensions thereto, and the right to bring actions for past and future infringement. This grant and assignment may be confirmed in a form\nacceptable to Party-1.\n(c) Securing Rights. Party-2 acknowledges and agrees to take all appropriate steps at the request of Party-1, to secure for Party-1 the rights and benefits of\nParty-1 in and to the Employee Developments, to protect Party-1's rights in the Employee Developments, and to appoint Party-1 as Party-2's attorney-in-fact to\nenable Party-1 to record, file and prosecute any application for, and acquire, maintain and enforce, any intellectual property and proprietary rights and any other\nrights in the Employee Developments throughout the universe in all languages and in all media and forms of expression and communication now or later\ndeveloped. Party-2 agrees to waive any and all rights of attribution and integrity Party-2 may have in any of the Employee Developments under Section 17 U.S .C .\n§203 of the United States copyright Laws and any right of privacy or publicity for the Employee Developments identified for all uses as stated and contemplated.\n(d) Ownership. (i) Supplied Tools. Party-1 retains the exclusive ownership interest in all tools, materials, software, hardware, and any other equipment or supplies\nthat Party-1 may provide to Party-2 during Party-2's employment with Party-1 ("Supplied Tools"), and Party-2 acknowledges Party-1's exclusive ownership\ninterest in the Supplied Tools and agrees not to contest such interest. (ii) Limited Use. Party-2 may use the Supplied Tools only to perform Party-2's job\nresponsibilities during the Term. (iii) Disclosures. Party-2 agrees to disclose in writing to Party-1 , and comply with all Party-1 policies and procedures pertaining\nto, all Employee Developments.\n(e) Application for Waiver. Party-2 may apply to the chief executive officer of Party-1 from time to time for a waiver from Party-2's grant and assignment\nobligations for the Employee Developments. In deciding whether or not to grant such a waiver, Party-1 shall reasonably consider the following factors, any one of\nwhich may or may not be dispositive, but the decision to grant such a waiver is entirely within Party-1's discretion: (i) Whether any Supplied Tools, facility, or\nConfidential Information of Party-1 was used in developing the Employee Developments; (ii) Whether the Employee Developments were developed entirely\noutside of Party-2's job responsibilities; (iii) Whether the Employee Developments relate directly to Party-1's business; (iv) Whether the Employee Developments\nrelate to Party-1's actual or demonstrably anticipated research or development; and/or (v) Whether the Employee Developments result from any work performed\nby Party-2 for Party-1 .\n(f) Background Developments. (i) Applicability. Party-2 may provide certain Developments, created prior to the Term and Party-2's employment with Party-1,\nwhich underlie, pertain to, are embodied by or become embodied in any Employee Developments ("Background Developments"). (ii) License to Background\nDevelopments. However, in the event that any Employee Developments and any other Developments that incorporate elements which are Background\nDevelopments, Party-2 hereby grants and agrees to grant to Party-1, free and clear of an liens, claims or encumbrances, an irrevocable, perpetual, non -exclusive,\nworldwide, transferable, fully-paid up, royalty-free license in the Background Developments to permit Party-1 to exercise the rights, in both print and electronic\nformat, and any other format, to make, use, sell, have made and manufactured, have sold, offer for sale, design, reproduce, make derivative works from, publicly\ndisplay, publicly perform, and publicly distribute the Background Developments, as well as any new designs or derivations of the Background Developments,\nincluding, but not limited to, any and all moral rights of attribution and integrity, and to otherwise exploit all Background Developments. Party-2 has listed below\nthe only Background Developments that are or might be incorporated into the Employee Developments and any obligations owed to third parties regarding the\nBackground Developments (failure to list indicates there are none):\n3\n6. TERM AND SURVIVAL.\n(a) Term. The term of this Agreement (the "Term") commences on the Effective Date and ends at the end of Party-2's employment with Party-1.\n(b) Survival. The following captioned sections survive any termination, expiration or non-renewal of this Agreement: "Nondisclosure and Uses" (only for purposes\nof complying with Section 3.3.5 (Return of Confidential Information) and only for thirty (30) days or such longer period as necessary to comply with the Retention\nRequirements, also, if any personnel of a receiving party retains in their memory any specific contents of a disclosing party's Confidential Information, such\nspecific contents may not ever be disclosed to any third parties except under "Disclosures Required by Law"), "Return of Confidential Information", "Disclosures\nRequired by Law", "Survival", and "General". "Non-Competition" and "Non-Solicitation" survive for the length time stated therein.\n7. GENERAL .\nEntire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements\nregarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be\namended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge\nthat they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents,\nhas the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of this Agreement. Party-1 may not\nsubcontract any obligation under this Agreement without Party-2's prior written consent. Party-2 can subcontract without Party-1's consent. Each party is\nresponsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own. Governing\nLaw and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of Colorado, applicable to contracts wholly\nmade and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in Colorado, regardless of the inconvenience of\nthe forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations\nConvention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and\ninures to the benefit of the parties' successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in\nwhole or in part without the prior written consent of the other party (or parties). Any transfer, assignment, delegation or sublicense by a party without such prior\nwritten consent is invalid. However, any party may assign this Agreement to a third party purchasing: (a) majority control of the party's equity shares; or (b) all or\nsubstantially all of either (i) a party's assets or (ii) the assets of the party's relevant business unit under this Agreement. No Waivers, Cumulative Remedies. A\nparty's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly\nstated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive.\nSeverability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original\nintent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and\njurisdictions.\nNotices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery\nto the address set forth in this Agreement by each party.\nCaptions and Plural Terms.\nAll captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have\nthe same meaning in the plural and vice versa.\nIN WITNESS WHEREOF, the parties execute this Agreement as of the Effective Date. Each person who signs this Agreement below represents that such person\nis fully authorized to sign this Agreement on behalf of the applicable party.\nROBERT A. NEWSON\nNAME:\nFOR:\n4
2f9077637a572fb939dfc6e8b08c4ad8.pdf	effective_date jurisdiction party	EX-10 .30 6 tazoteascontract1030.txt DISTRIBUTION AGREEMENT TAZO EXHIBIT B CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT 1.\nPARTIES. This Agreement is between Tazo Tea Company ("TAZO") and MASTER DISTRIBUTORS, INC . dba Atlantic Beverage Company ("COMPANY"), each\nhaving the address set forth below. 2. BACKGROUND AND PURPOSE OF DISCLOSURE . COMPANY and TAZO are evaluating or are engaged in a business\nrelationship (the "Project(s)"), during which TAZO may disclose to COMPANY certain valuable confidential and proprietary information. 3 . DESCRIPTION OF\nCONFIDENTIAL INFORMATION. TAZO's interest in the Project and the fact that the parties are working together on the Project is confidential information.\nUnless such information falls within the exceptions set forth below, any and all information disclosed by TAZO which by its nature is generally considered\nproprietary and confidential, disclosed in any manner and regardless of whether such information is specifically labeled as such, also is considered confidential\ninformation (hereinafter any and all such information shall be collectively referred to as "Confidential Information"). 4. AGREEMENT TO MAINTAIN\nCONFIDENTIALITY. COMPANY agrees to hold any Confidential Information disclosed to it in confidence, to cause its employees, agents or other third parties to\nhold such Confidential Information in confidence, and to use the same standard of care used to protect its own proprietary and confidential information in\nprotecting the Confidential Information. COMPANY shall not disclose Confidential Information to others or use it for purposes other than the Project. 5. LIMITED\nDISCLOSURE. COMPANY agrees to limit disclosure of Confidential Information to those employees or agents necessary for the Project who have agreed to be\nbound by the obligations herein. 6 . EFFECTIVE DATE AND LENGTH OF OBLIGATION . This Agreement is effective as of the last date of execution by both\nparties and may only be terminated by either party upon written notice following the termination of the parties' Distributorship Agreement to which this Agreement\nis attached. COMPANY's obligation of confidentiality and non-use for Confidential Information hereunder shall last for five (5) years from the date of such written\nnotice. 7. SECURITIES LAWS . COMPANY hereby acknowledges that it is aware, and agrees that it will advise all of those persons who are involved in the\nProject that is the subject of this Agreement, that federal and state securities laws prohibit any person who has received material, non-public information\n(information about TAZO, its parent company, Starbucks Corporation ("STARBUCKS") or their businesses that is not generally available to the public) concerning\nTAZO or STARBUCKS, including, without limitation, the matters that are the subject of this Agreement, from purchasing or selling securities of STARBUCKS\nwhile in possession of such non-public information, and from communicating that information to any other person who may purchase or sell securities of\nSTARBUCKS or otherwise violate such laws. COMPANY specifically acknowledges these obligations and agrees to be bound thereto. 8. EXCEPTIONS TO\nCONFIDENTIAL INFORMATION. Confidential Information shall not include any information which (a) was publicly available at the time of disclosure; (b) became\npublicly available after disclosure without breach of this Agreement by the COMPANY; (c) was in COMPANY's possession prior to disclosure, as evidenced by\nCOMPANY's written records, and was not the subject of an earlier confidential relationship with TAZO; (d) was rightfully acquired by COMPANY after disclosure\nby TAZO from a third party who was lawfully in possession of the information and was under no obligation to TAZO to maintain its confidentiality; (e) is\nindependently developed by COMPANY's employees or agents who have not had access to the Confidential Information; or (f) is required to be disclosed by the\nCOMPANY pursuant to judicial order or other compulsion of law, provided that COMPANY shall provide to TAZO prompt notice of such order and comply with\nany protective order imposed on such disclosure. 9. RETURN OF CONFIDENTIAL INFORMATION . At any time requested by TAZO, COMPANY shall return or\ndestroy all documents, samples or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing that such\ndestruction or return has been accomplished. 10. DISCLAIMER OF OTHER RELATIONSHIPS . This Agreement does not create a relationship of agency,\npartnership, joint venture or license between the parties. 11 . BREACH. If COMPANY breaches any term of this Agreement, TAZO shall have the right to (a)\nterminate this Agreement and/or demand the immediate return of all Confidential Information; (b) recover its actual damages incurred by reason of such breach,\nincluding, without limitation, its attorneys fees and costs of suit; (c) obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this\nAgreement; and (d) pursue any other remedy available at law or in equity. Failure to properly demand compliance or performance of any term of this Agreement\nshall not constitute a waiver of TAZO's rights hereunder. 12. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the\nlaws of the state of Oregon, without reference to conflicts of law principles. The parties hereby submit and consent to the jurisdiction of the federal and state\ncourts of Multnomah County, Oregon, for purposes of any legal action arising out of this Agreement. 13. AMENDMENTS . This Agreement is made a part of and\nsubject to the provisions of the parties' Distributorship Agreement to which it is attached and all previous agreements between the parties regarding the\nConfidential Information are superceded by that Agreement and cannot be canceled, assigned or modified except as provided therein. MASTER\nDISTRIBUTORS, INC . dba Atlantic Beverage Co. (Company Name) Signature /s/ [ILLEGIBLE] -------------------------------------------------- Title Vice President\n-------------------------------------------------- Address8106StaytonDr. -------------------------------------------------- Jessup, MD20794\n-- --- -- --- -- --- -- --- -- -- --- -- --- -- --- -- --- -- --- -- --- -- -- --- - Date -------------------------------------------------------- TAZO TEA COMPANY Signature /s/ Tom Clemente\n-- --- -- --- -- --- -- --- -- -- --- -- --- -- --- -- --- -- --- -- - Title V.P . of Sales -------------------------------------------------- Address P.O. Box 66 --------------------------------------------------\nPortland, OR 97201 --- -- --- -- -- --- -- --- -- --- -- --- -- --- -- --- -- -- --- -- --- -- --- -- - Date 12/9/02 --------------------------------------------------------	EX-10.30 6 tazoteascontract1030.txt DISTRIBUTION AGREEMENT TAZO EXHIBIT B CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT 1.\nPARTIES. This Agreementis between Tazo Tea Company ("TAZO") and MASTER DISTRIBUTORS, INC. dba Atlantic Beverage Company ("COMPANY"), each\nhaving Ihe address set forth below. 2. BACKGROUND AND PURPOSE OF DISCLOSURE. COMPANY and TAZO are evaluating or are engaged in a business\nrelationship (Ihe "Project(s)"), during which TAZO may disclose to COMPANY certain valuable confidential and proprietary information. 3. DESC RIPTION OF\nCONFIDENTIAL IN FORMATION. TAZO's interest in Ihe Project and the fact Ihatthe parties are working together on the Project is confidential information.\nUnless such information falls wilhin Ihe exceptions set forlh below, any and all information disclosed by TAZO which by its nature is generally considered\nproprietary and confidential, disclosed in any manner and regardless of whether such information is specifically labeled as such, also is considered confidential\ninformation (hereinafter any and all such information shall be collectively referred to as "Confidential Information"). 4. AG RE E ME NT TO MAINTAIN\nCONFIDENTIALITY. COMPANY agrees to hold any Confidential Information disclosed to it in confidence, to cause its employees, agents or other Ihird parties to\nhold such Confidential Information in confidence, and to use the same standard ofcare used to protect its own proprietary and confidential information in\nprotecting Ihe Confidential Information. COMPANY shall notdisclose Confidential Information to others or use it for purposes other Ihan the Project. 5. LIMITE D\nDISCLOSURE. COMPANY agrees to limitdisclosure ofConfidential Information to Ihose employees or agenIs necessary forthe Projectwho have agreed to be\nbound by the obligations herein. 6. EFFECTIVE DATE AND LENGTH OF OBLIGATION. This Agreement is effective as of the lastdate ofexecution by both\nparties and may only be terminated by eilher party upon written notice following the termination of Ihe parties' Distributorship Agreementto which this Agreement\nis attached. COMPANY's obligation of confidentiality and non-use for Confidential Information hereunder shall lastfor five (5) years from the date ofsuch written\nnotice. 7. SECURITIES LAWS. COMPANY hereby acknowledges that it is aware, and agrees that itwill advise all oflhose persons who are involved in the\nProject Ihat is Ihe subject of this Agreement, that federal and state securities laws prohibit any person who has received material, non-public information\n(information aboutTAZO, its parentcompany, Starbucks Corporation ("STARBUC KS") or their businesses Ihat is not generally available to the public) concerning\nTAZO or STAR BUC KS, including, without limitation, Ihe matters Ihat are the subjectofthis Agreement, from purchasing or selling securities of STAR BUC KS\nwhile in possession ofsuch non-public information, and from communicating Ihat information to any other person who may purchase or sell securities of\nSTARBUCKS or othenNise violate such laws. COMPANY specifically acknowledges these obligations and agrees to be bound thereto. 8. EXC EPTIONS TO\nCONFIDENTIAL IN FORMATION. Confidential Information shall not include any information which (a) was publicly available at the time ofdisclosure; (b) became\npublicly available after disclosure wilhout breach of this Agreement by the COMPANY; (c) was in COMPANY's possession prior to disclosure, as evidenced by\nCOMPANY's written records, and was not Ihe subjectof an earlier confidential relationship wilh TAZO; (d) was rightfully acquired by COMPANY after disclosure\nby TAZO from a Ihird party who was lawfully in possession of the information and was under no obligation to TAZO to maintain iIs confidentiality; (e) is\nindependently developed by COMPANY's employees or agenIs who have not had access to Ihe Confidential Information; or (f) is required to be disclosed by the\nCOMPANY pursuant to judicial order or other compulsion of law, provided that COMPANY shall provide to TAZO prompt notice ofsuch order and comply with\nany protective order imposed on such disclosure. 9. RETURN OF CONFIDE NTIAL INFORMATION. At any time requested by TAZO, COMPANY shall return or\ndestroy all documents, samples or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing thatsuch\ndestruction or return has been accomplished. 10. DISC LAIME R OF OTHER RE LATIONSHIPS. This Agreementdoes notcreate a relationship of agency,\npartnership, joint venture or license between Ihe parties. 11. BREACH. IfCOMPANY breaches any term oflhis Agreement, TAZO shall have the rightto (a)\nterminate Ihis Agreement and/or demand the immediate return of all Confidential Information; (b) recover its actual damages incurred by reason ofsuch breach,\nincluding, without limitation, iIs attorneys fees and costs ofsuit; (c) obtain injunctive reliefto prevent such breach or to othenNise enforce the terms ofthis\nAgreement; and (d) pursue any other remedy available at law or in equity. Failure to properly demand compliance or performance of any term of this Agreement\nshall not constitute a waiver ofTAZO's righIs hereunder. 12. GOVE RNING LAW. This Agreement shall be governed by and construed in accordance with the\nlaws of Ihe state ofOregon, without reference to conflicts of law principles. The parties hereby submit and consent to Ihe jurisdiction of Ihe federal and state\ncourIs of Multnomah County, Oregon, for purposes of any legal action arising outofthis Agreement. 13. AMEN DMENTS. This Agreement is made a partof and\nsubjectto the provisions of the parties' Distributorship Agreementto which it is attached and all previous agreemenIs between the parties regarding Ihe\nConfidential Information are superceded by thatAgreement and cannot be canceled, assigned or modified except as provided therein. MASTE R\nDISTRIBUTORS, INC. dba AUantic Beverage Co. (Company Name) Signature /s/ [ILLEGIBLE] -------------------------------------------------- Tine Vice President\nAddress 8106 Stayton Dr. -------------------------------------------------- Jessup, MD 20794\n-- TAZO TEA COMPANY Signature /s/Tom Clemente\nTine VP. of Sales -------------------------------------------------- Address P .O. Box 66 --------------------------------------------------\n   \n	EX-10.30 6 tazoteascontract1030.txt DISTRIBUTION AGREEMENT TAZO EXHIBIT B CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT 1.\nPARTIES. This Agreement is between Tazo Tea Company ("TAZO") and MASTER DISTRIBUTORS, INC. dba Atlantic Beverage Company ("COMPANY"), each\nhaving the address set forth below 2. BACKGROUND AND PURPOSE OF DISCLOSURE. COMPANY and TAZO are evaluating or are engaged in a business\nrelationship (the "Project(s)"), during which TAZO may disclose to COMPANY certain valuable confidential and proprietary information. 3. DESCRIPTION OF\nCONFIDENTIAL INFORMATION. TAZO's interest in the Project and the fact that the parties are working together on the Project is confidential information.\nUnless such information falls within the exceptions set forth below, any and all information disclosed by TAZO which by its nature is generally considered\nproprietary and confidential, disclosed in any manner and regardless of whether such information is specifically labeled as such, also is considered confidential\ninformation (hereinafter any and all such information shall be collectively referred to as "Confidential Information"). 4. AGREEMENT TO MAINTAIN\nCONFIDENTIALITY. COMPANY agrees to hold any Confidential Information disclosed to it in confidence, to cause its employees, agents or other third parties to\nhold such Confidential Information in confidence, and to use the same standard of care used to protect its own proprietary and confidential information in\nprotecting the Confidential Information. COMPANY shall not disclose Confidential Information to others or use it for purposes other than the Project. 5. LIMITED\nDISCLOSURE. COMPANY agrees to limit disclosure of Confidential Information to those employees or agents necessary for the P roject who have agreed to be\nbound by the obligations herein. 6. EFFECTIVE DATE AND LENGTH OF OBLIGATION. This Agreement is effective as of the last date of execution by both\nparties and may only be terminated by either party upon written notice following the termination of the parties' Distributorship Agreement to which this Agreement\nis\nattached. COMPANY'S obligation of confidentiality and non-use for Confidential Information hereunder shall last for five (5) years from the date of such written\nnotice. 7. SECURITIES LAWS. COMPANY hereby acknowledges that it is aware, and agrees that it will advise all of those persons who are involved in the\nProject that is the subject of this Agreement, that federal and state securities laws prohibit any person who has received material, non-public information\n(information about TAZO, its parent company, Starbucks Corporation ("STAR BUCKS") or their businesses that is not generally available to the public) concerning\nTAZO or STARBUCKS including, without limitation, the matters that are the subject of this Agreement, from purchasing or selling securities of STARBUCKS\nwhile in possession of such non-public information, and from communicating that information to any other person who may purchase or sell securities of\nSTARBUCKS or otherwise violate such laws. COMPANY specifically acknowledges these obligations and agrees to be bound thereto. 8. EXCEPTIONS TO\nCONFIDENTIAL INFORMATION. Confidentia Information shall not include any information which (a) was publicly available at the time of disclosure; (b) became\npublicly available after disclosure without breach of this Agreement by the COMPANY; (c) was in COMPANY'S possession prior to disclosure, as evidenced by\nCOMPANY'S written records, and was not the subject of an earlier confidential relationship with TAZO; (d) was rightfully acquired by COMPANY after disclosure\nby TAZO from a third party who was lawfully in possession of the information and was under no obligation to TAZO to maintain its confidentiality; (e) is\nindependently developed by COMPANY'S employees or agents who have not had access to the Confidential Information; or (f) is required to be disclosed by the\nCOMPANY pursuant to judicial order or other compulsion of law, provided that COMPANY shall provide to TAZO prompt notice of such order and comply with\nany protective order imposed on such disclosure. 9. ETURN OF CONFIDENTIAL INFORMATION. At any time requested by TAZO, COMPANY shall return or\ndestroy all documents, samples or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing that such\ndestruction or return has been accomplished. 10. ISCLAIMER OF OTHER RELATIONSHIPS. This Agreement does not create a relationship of agency,\npartnership, joint venture or license between the parties. 11. BREACH. If COMPANY breaches any term of this Agreement, TAZO shall have the right to (a)\nterminate this Agreement and/or demand the immediate return of all Confidential Information; (b) recover its actual damages incurred by reason of such breach,\nincluding, without limitation, its attorneys fees and costs of suit; (c) obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this\nAgreement; and (d) pursue any other remedy available at law or in equity. Failure to properly demand compliance or performance of any term of this Agreement\nshall not constitute a waiver of TAZO's rights hereunder. 12. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the\nlaws of the state of Oregon, without reference to conflicts of law principles. The parties hereby submit and consent to the jurisdiction of the federal and state\ncourts of Multnomah County, Oregon, for purposes of any legal action arising out of this Agreement. 13. AMENDMENTS. This Agreement is made a part of and\nsubject to the provisions of the parties' Distributorship Agreement to which it is attached and all previous agreements between the parties regarding the\nConfidential Information are superceded by that Agreement and cannot be canceled, assigned or modified except as provided therein. MASTER\nDISTRIBUTORS, INC dba Atlantic Beverage Co. Company Name) Signature\nTitle Vice President\nAddress 8106 Stayton Dr.\nessup, MD 20794\nDate\nTAZO TEA COMPANY ignature /s/ Tom Clemente\nTitle\nV.P.\nof\nales\nAddress\nP.O.\nBox\n66\nPortland, OR 97201\nDate 12/9/02	EX-10 .30 6 tazoteascontract1030.txt DISTRIBUTION AGREEMENT TAZO EXHIBIT B CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT 1.\nPARTIES. This Agreement is between Tazo Tea Company ("TAZO") and MASTER DISTRIBUTORS, INC . dba Atlantic Beverage Company ("COMPANY"), each\nhaving the address set forth below. 2. BACKGROUND AND PURPOSE OF DISCLOSURE . COMPANY and TAZO are evaluating or are engaged in a business\nrelationship (the "Project(s)"), during which TAZO may disclose to COMPANY certain valuable confidential and proprietary information. 3 . DESCRIPTION OF\nCONFIDENTIAL INFORMATION. TAZO's interest in the Project and the fact that the parties are working together on the Project is confidential information.\nUnless such information falls within the exceptions set forth below, any and all information disclosed by TAZO which by its nature is generally considered\nproprietary and confidential, disclosed in any manner and regardless of whether such information is specifically labeled as such, also is considered confidential\ninformation (hereinafter any and all such information shall be collectively referred to as "Confidential Information"). 4. AGREEMENT TO MAINTAIN\nCONFIDENTIALITY. COMPANY agrees to hold any Confidential Information disclosed to it in confidence, to cause its employees, agents or other third parties to\nhold such Confidential Information in confidence, and to use the same standard of care used to protect its own proprietary and confidential information in\nprotecting the Confidential Information. COMPANY shall not disclose Confidential Information to others or use it for purposes other than the Project. 5. LIMITED\nDISCLOSURE. COMPANY agrees to limit disclosure of Confidential Information to those employees or agents necessary for the Project who have agreed to be\nbound by the obligations herein. 6 . EFFECTIVE DATE AND LENGTH OF OBLIGATION . This Agreement is effective as of the last date of execution by both\nparties and may only be terminated by either party upon written notice following the termination of the parties' Distributorship Agreement to which this Agreement\nis attached. COMPANY's obligation of confidentiality and non-use for Confidential Information hereunder shall last for five (5) years from the date of such written\nnotice. 7. SECURITIES LAWS . COMPANY hereby acknowledges that it is aware, and agrees that it will advise all of those persons who are involved in the\nProject that is the subject of this Agreement, that federal and state securities laws prohibit any person who has received material, non-public information\n(information about TAZO, its parent company, Starbucks Corporation ("STARBUCKS") or their businesses that is not generally available to the public) concerning\nTAZO or STARBUCKS, including, without limitation, the matters that are the subject of this Agreement, from purchasing or selling securities of STARBUCKS\nwhile in possession of such non-public information, and from communicating that information to any other person who may purchase or sell securities of\nSTARBUCKS or otherwise violate such laws. COMPANY specifically acknowledges these obligations and agrees to be bound thereto. 8. EXCEPTIONS TO\nCONFIDENTIAL INFORMATION. Confidential Information shall not include any information which (a) was publicly available at the time of disclosure; (b) became\npublicly available after disclosure without breach of this Agreement by the COMPANY; (c) was in COMPANY's possession prior to disclosure, as evidenced by\nCOMPANY's written records, and was not the subject of an earlier confidential relationship with TAZO; (d) was rightfully acquired by COMPANY after disclosure\nby TAZO from a third party who was lawfully in possession of the information and was under no obligation to TAZO to maintain its confidentiality; (e) is\nindependently developed by COMPANY's employees or agents who have not had access to the Confidential Information; or (f) is required to be disclosed by the\nCOMPANY pursuant to judicial order or other compulsion of law, provided that COMPANY shall provide to TAZO prompt notice of such order and comply with\nany protective order imposed on such disclosure. 9. RETURN OF CONFIDENTIAL INFORMATION . At any time requested by TAZO, COMPANY shall return or\ndestroy all documents, samples or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing that such\ndestruction or return has been accomplished. 10. DISCLAIMER OF OTHER RELATIONSHIPS . This Agreement does not create a relationship of agency,\npartnership, joint venture or license between the parties. 11 . BREACH. If COMPANY breaches any term of this Agreement, TAZO shall have the right to (a)\nterminate this Agreement and/or demand the immediate return of all Confidential Information; (b) recover its actual damages incurred by reason of such breach,\nincluding, without limitation, its attorneys fees and costs of suit; (c) obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this\nAgreement; and (d) pursue any other remedy available at law or in equity. Failure to properly demand compliance or performance of any term of this Agreement\nshall not constitute a waiver of TAZO's rights hereunder. 12. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the\nlaws of the state of Oregon, without reference to conflicts of law principles. The parties hereby submit and consent to the jurisdiction of the federal and state\ncourts of Multnomah County, Oregon, for purposes of any legal action arising out of this Agreement. 13. AMENDMENTS . This Agreement is made a part of and\nsubject to the provisions of the parties' Distributorship Agreement to which it is attached and all previous agreements between the parties regarding the\nConfidential Information are superceded by that Agreement and cannot be canceled, assigned or modified except as provided therein. MASTER\nDISTRIBUTORS, INC . dba Atlantic Beverage Co. (Company Name) Signature /s/ [ILLEGIBLE] -------------------------------------------------- Title Vice President\n-------------------------------------------------- Address8106StaytonDr. -------------------------------------------------- Jessup, MD20794\n-- --- -- --- -- --- -- --- -- -- --- -- --- -- --- -- --- -- --- -- --- -- -- --- - Date -------------------------------------------------------- TAZO TEA COMPANY Signature /s/ Tom Clemente\n-- --- -- --- -- --- -- --- -- -- --- -- --- -- --- -- --- -- --- -- - Title V.P . of Sales -------------------------------------------------- Address P.O. Box 66 --------------------------------------------------\nPortland, OR 97201 --- -- --- -- -- --- -- --- -- --- -- --- -- --- -- --- -- -- --- -- --- -- --- -- - Date 12/9/02 --------------------------------------------------------
310d8f09b2f467f267982174ec014b20.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 8 d110802dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nCONFIDENTIAL\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of November 16, 2015, is between II-VI\nIncorporated, a Pennsylvania corporation (“II-VI”), and Anadigics, Inc., a Delaware corporation (“Anadigics”), and is entered into to ensure the\nprotection and preservation of the confidential and/or proprietary nature of information that the Parties (as hereinafter defined) contemplate\ndisclosing to one another in connection with certain transactions or other business arrangements under discussion by the Parties, including, but\nnot limited to, business combination transactions, merger transactions, asset sales, stock purchases, consolidations, strategic alliances, joint\nventures, technology transfers, supply and other commercial arrangements and similar transactions or arrangements involving or between the\nParties (any such transaction or arrangement is herein referred to as the “Transaction”).\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the “Disclosing Party” and the Party\nreceiving the Confidential Information is the “Receiving Party.” Each of II-VI and Anadigics and their respective subsidiaries and affiliates shall\nbe referred to herein individually as a “Party” and collectively as the “Parties.”\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall include the following\ninformation, whether communicated in tangible form, electronically or orally and regardless of whether specifically identified as “proprietary” or\n“confidential”: (i) all business information, plans, tactics or materials of the Parties, including, but not limited to, business plans, practices and\nstrategies, product plans and product roadmaps, employee lists, employee benefit programs, customer lists, market analyses, compilations and\ninformation, pricing policies, financial information or information regarding research and development, engineering, quality assurance,\nregulatory matters, sales and marketing, accounting, legal matters, product resources, supply resources, financing plans, information, plans or\nproposals relating to capital structure, owned or leased assets and liquidity needs, directors, officers, employees, financing sources, customers,\nvendors, strategic partners, stockholders, affiliates, customer contracts or proposals for customer contracts, contracts with vendors or suppliers or\nplans or proposals for strategic alliances or other business relations with third parties; (ii) all trade secrets, technical know-how, formulae,\nmethods, processes, frameworks, ideas, inventions (whether or not patentable), schematics, systems writings, hardware and software designs and\ncode (source and object), product specifications, prototypes, product samples; (iii) all manuals, systems documentation, reports, notes, analyses,\ncompilations,\nstudies, interpretations, correspondence, memoranda or other materials related to any of the items described in clauses (i) and (ii) above; (iv) all\nother written or electronic information which is submitted or disclosed by the Disclosing Party to the Receiving Party hereunder, whether or not\ndesignated by the Disclosing Party as being confidential or proprietary at the time of its first disclosure; and (v) all verbal information which the\nDisclosing Party designates as confidential or proprietary at the time of its first disclosure and thereafter designates as such in a writing delivered\nto the Receiving Party within 30 days after its first disclosure.\n2. Non-Disclosure and Use Restrictions. Each Party shall keep the Confidential Information of the other Party strictly confidential for a\nperiod of two (2) years from the date hereof, except for Confidential Information constituting trade secrets, which each Party shall keep\nconfidential indefinitely, and shall not disclose such Confidential Information to any third parties, other than its Representatives, without the\nprior written consent of the Disclosing Party. Each Party shall use the Confidential Information received from the other Party only for the\npurpose of evaluating, negotiating or consummating the Transaction (including the effects of its consummation), and in no event for any other\ncommercial, business or other purpose or for any other purpose unrelated to the Transaction that is competitively, strategically or otherwise\ndisadvantageous, directly or indirectly, to the Disclosing Party. Each Party represents and warrants that in considering a possible Transaction and\nreviewing the Confidential Information, such Party (i) is acting solely on its own behalf and not as part of a group with any unaffiliated parties,\nand (ii) has not entered into any exclusivity arrangements with any potential providers of debt or related financing for a possible Transaction that\nwould preclude such providers from providing debt or related financing to any other parties proposing to enter into a transaction with either Party\nreasonably comparable to the Transaction. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work\nrights, or any other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one\nParty to the other Party.\n3. Copying. Confidential Information supplied by one Party shall not be reproduced by the other Party in any form except to the extent\nreasonably necessary to enable such other Party to evaluate the Transaction.\n4. Care. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and confidential and shall use the\nsame degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as the Receiving Party provides\nto protect its own Confidential Information. The Receiving Party shall maintain the Confidential Information received from the Disclosing Party\nin confidence and shall retain such Confidential Information in a secure place. The Receiving Party shall disclose and permit access to such\nConfidential Information only to those of its directors, officers, employees, affiliates, agents and legal, financial and accounting advisors (in each\nsuch case, a “Representative”) who reasonably need to know such information in order to evaluate the Transaction and with whom the\nReceiving Party has established practices or procedures to maintain the confidence of such Confidential Information, who are informed of the\nconfidential and proprietary nature of such information and the provisions of this Agreement, and who agree to be bound by the provisions\nhereof. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its Representatives.\n5. Ownership. All Confidential Information shall remain the property of the Disclosing Party, and all documents or other tangible or\nelectronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the option of the\nReceiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or upon the\nrequest of the Disclosing Party. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6. Limitation. It is understood that the term “Confidential Information” does not include information that:\n(a) has been published, as evidenced by written documentation, or is now or becomes in the public domain without breach of this\nAgreement by the Receiving Party;\n(b) prior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c) subsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in such party’s\npossession and is not restricted from further disseminating the information; or\n(d) is independently developed by the Receiving Party without using the Confidential Information.\n7. Legally Required Disclosure. If either Party is required by law or by any court of competent authority or governmental agency or\nauthority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information of the other Party, then the\nParty so required to disclose the Confidential Information (the “Requested Party”) will provide such other Party (the “Owning Party”) with\nprompt written notice of such requirement prior to such disclosure. The Owning Party receiving such notice may then either seek appropriate\nprotective relief from all or part of such requirement (including confidential treatment of any such disclosure if required) or waive the Requested\nParty’s compliance with the provisions of this Agreement with respect to all or part of such requirement. Each Party agrees that if it is the\nRequested Party, it will reasonably cooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to\nseek. If the Owning Party fails to obtain such relief, and, in the opinion of counsel for the Requested Party, the Requested Party is legally\ncompelled to disclose any of the Confidential Information, then the Requested Party may disclose that portion of the Confidential Information\nwhich counsel to such Requested Party advises that it is compelled to disclose, but no more than what is legally required.\n8. Relief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be difficult to ascertain,\nthe Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each other, specific\nperformance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this Agreement and that\nsuch Party seeking equitable relief may do so without the necessity to post any bond therefor.\n9. Right to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information that it previously has\ndisclosed or will disclose to the\nother Party pursuant to this Agreement, and each of the Parties shall indemnify and hold harmless the other Party from all claims by a third party\nrelating to the wrongful disclosure of such third party’s information. Otherwise, neither of the Parties makes any representation or warranty,\nexpress or implied, with respect to any Confidential Information, except as set forth in Section 2 above, or as may be provided in definitive\nagreements, if any, that may be executed after the date hereof in connection with the Transaction or otherwise. Neither of the Parties shall be\nliable for indirect, incidental, consequential or punitive damages of any nature or kind resulting from or arising in connection with this\nAgreement or its violation.\n10. Disclosure. Except as required by law, all media releases and public announcements or disclosures by either of the Parties relating to\nthis Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the release thereof. It is\nunderstood and agreed that, except in accordance with Section 7 of this Agreement, neither Party shall disclose to any third party (other than its\nRepresentatives) the fact that the Parties are in discussions concerning the Transaction, or the status or terms of such discussions, without the\nprior written consent of the other Party.\n11. Term. This Agreement shall continue in full force and effect for a period of two (2) years from the date hereof and then shall\nautomatically expire and terminate. The obligations of the Parties with respect to Confidential Information and under Section 13, however, shall\ncontinue after the termination of this Agreement.\n12. Right to Continue Activities. Subject to the nondisclosure and use restrictions set forth in this Agreement, each Party’s right to develop,\nuse and market products and services similar to or competitive with those of the other Party shall remain unimpaired. Each Party acknowledges\nthat the other Party may already possess or have developed products or services similar to or competitive with those of the other Party disclosed\nin the Confidential Information.\n13. Access to and Solicitation of Employees.\n(a) Except as otherwise provided in this Section 13(a), II-VI hereby agrees that neither it nor any of its Representatives will, without\nthe express prior written permission of Anadigics, initiate or maintain contact with any officer, director or employee of Anadigics or any of\nits subsidiaries regarding the Confidential Information or the Transaction. II-VI shall submit or direct all communications regarding the\nTransaction and Confidential Information to Ronald Michels, Chairman and Chief Executive Officer of Anadigics or, at Ronald Michels’\ndirection to, Terrence G. Gallagher, Executive Vice President and Chief Financial Officer of Anadigics.\n(b) Each Party agrees that for a period of eighteen (18) months from the date hereof, it will not (and it will not assist, advise or\nencourage others to), directly or indirectly, unless specifically consented to in advance in writing by the other Party, solicit for employment\n(other than advertising or public solicitation that is not a targeted solicitation of the other Party’s employees) (i) any executive officer of the\nother Party, (ii) any officer with the title of Vice President or higher of the other Party to whom the Party was first introduced in the course\nof discussions with respect to the Transaction, (iii) any sales personnel of the other Party, and (iv) any engineering or technical personnel of\nthe other Party.\n14. Governing Law; Whole Agreement. This Agreement shall be governed by and construed under the laws of the State of Delaware\nwithout giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. There are no understandings,\nagreements or representations relating to the subject matter hereof, express or implied, not specified herein.\n15. Securities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public information about a\ncompany from purchasing or selling securities of such company or from communicating such information to a third party under circumstances in\nwhich it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such information.\n16. Amendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the observance of any term or\nprovision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either Party in exercising any right,\npower or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any other right, power or privilege granted hereunder.\n17. Successors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective successors\n(including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the prior\nexpress written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control transaction\nshall be expressly permitted.\n18. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein\nand supersedes all prior discussions between them whether written or oral, except that that certain existing confidentiality agreement dated\nOctober 23, 2015 shall remain in full force and effect. This Agreement may be modified only in writing, signed by each Party.\n19. Counterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original and all of which\nshall be deemed to be one and the same instrument.\n[signatures appear on next page]\n[signature page to Mutual Non-Disclosure Agreement—November 16, 2015]\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nII-VI INCORPORATED\nBy: /s/ Francis J. Kramer\nName: Francis J. Kramer\nTitle: Chairman & CEO\nANADIGICS, INC.\nBy: /s/ Ron Michels\nName: Ron Michels\nTitle: Chairman & CEO	EX-99.(D)(3) 8 d110802dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nCONFIDENTIAL\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of November 16, 2015, is between II-VI\nIncorporated, a Pennsylvania corporation (“II-VI”), and Anadigics, Inc., a Delaware corporation (“Anadigics”), and is entered into to ensure the\nprotection and preservation of the confidential and/or proprietary nature of information that the Parties (as hereinafter defined) contemplate\ndisclosing to one another in connection with certain transactions or other business arrangements under discussion by the Parties, including, but\nnot limited to, business combination transactions, merger transactions, asset sales, stock purchases, consolidations, strategic alliances, joint\nventures, technology transfers, supply and other commercial arrangements and similar transactions or arrangements involving or between the\nParties (any such transaction or arrangement is herein referred to as the “Transaction”).\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the “Disclosing Party” and the Party\nreceiving the Confidential Information is the “Receiving Party.” Each of II-VI and Anadigics and their respective subsidiaries and affiliates shall\nbe referred to herein individually as a “Party” and collectively as the “Parties.”\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall include the following\ninformation, whether communicated in tangible form, electronically or orally and regardless of whether specifically identified as “proprietary” or\n“confidential”: (i) all business information, plans, tactics or materials of the Parties, including, but not limited to, business plans, practices and\nstrategies, product plans and product roadmaps, employee lists, employee benefit programs, customer lists, market analyses, compilations and\ninformation, pricing policies, financial information or information regarding research and development, engineering, quality assurance,\nregulatory matters, sales and marketing, accounting, legal matters, product resources, supply resources, financing plans, information, plans or\nproposals relating to capital structure, owned or leased assets and liquidity needs, directors, officers, employees, financing sources, customers,\nvendors, strategic partners, stockholders, affiliates, customer contracts or proposals for customer contracts, contracts with vendors or suppliers or\nplans or proposals for strategic alliances or other business relations with third parties; (ii) all trade secrets, technical know-how, formulae,\nmethods, processes, frameworks, ideas, inventions (whether or not patentable), schematics, systems writings, hardware and software designs and\ncode (source and object), product specifications, prototypes, product samples; (iii) all manuals, systems documentation, reports, notes, analyses,\ncompilations,\nstudies, interpretations, correspondence, memoranda or other materials related to any of the items described in clauses (i) and (ii) above; (iv) all\nother written or electronic information which is submitted or disclosed by the Disclosing Party to the Receiving Party hereunder, whether or not\ndesignated by the Disclosing Party as being confidential or proprietary at the time of its first disclosure; and (v) all verbal information which the\nDisclosing Party designates as confidential or proprietary at the time of its first disclosure and thereafter designates as such in a writing delivered\nto the Receiving Party within 30 days after its first disclosure.\n2. Non-Disclosure and Use Restrictions. Each Party shall keep the Confidential Information of the other Party strictly confidential for a\nperiod of two (2) years from the date hereof, except for Confidential Information constituting trade secrets, which each Party shall keep\nconfidential indefinitely, and shall not disclose such Confidential Information to any third parties, other than its Representatives, without the\nprior written consent of the Disclosing Party. Each Party shall use the Confidential Information received from the other Party only for the\npurpose of evaluating, negotiating or consummating the Transaction (including the effects of its consummation), and in no event for any other\ncommercial, business or other purpose or for any other purpose unrelated to the Transaction that is competitively, strategically or otherwise\ndisadvantageous, directly or indirectly, to the Disclosing Party. Each Party represents and warrants that in considering a possible Transaction and\nreviewing the Confidential Information, such Party (i) is acting solely on its own behalf and not as part of a group with any unaffiliated parties,\nand (ii) has not entered into any exclusivity arrangements with any potential providers of debt or related financing for a possible Transaction that\nwould preclude such providers from providing debt or related financing to any other parties proposing to enter into a transaction with either Party\nreasonably comparable to the Transaction. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work\nrights, or any other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one\nParty to the other Party.\n3. Copying. Confidential Information supplied by one Party shall not be reproduced by the other Party in any form except to the extent\nreasonably necessary to enable such other Party to evaluate the Transaction.\n4. Care. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and confidential and shall use the\nsame degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as the Receiving Party provides\nto protect its own Confidential Information. The Receiving Party shall maintain the Confidential Information received from the Disclosing Party\nin confidence and shall retain such Confidential Information in a secure place. The Receiving Party shall disclose and permit access to such\nConfidential Information only to those of its directors, officers, employees, affiliates, agents and legal, financial and accounting advisors (in each\nsuch case, a “Representative”) who reasonably need to know such information in order to evaluate the Transaction and with whom the\nReceiving Party has established practices or procedures to maintain the confidence of such Confidential Information, who are informed of the\nconfidential and proprietary nature of such information and the provisions of this Agreement, and who agree to be bound by the provisions\nhereof. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its Representatives.\n5. Ownership. All Confidential Information shall remain the property of the Disclosing Party, and all documents or other tangible or\nelectronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the option of the\nReceiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or upon the\nrequest of the Disclosing Party. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6. Limitation. It is understood that the term “Confidential Information” does not include information that:\n(a) has been published, as evidenced by written documentation, or is now or becomes in the public domain without breach of this\nAgreement by the Receiving Party;\n(b) prior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c) subsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in such party’s\npossession and is not restricted from further disseminating the information; or\n(d) is independently developed by the Receiving Party without using the Confidential Information.\n7. Legally Required Disclosure. If either Party is required by law or by any court of competent authority or governmental agency or\nauthority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information of the other Party, then the\nParty so required to disclose the Confidential Information (the “Requested Party”) will provide such other Party (the “Owning Party”) with\nprompt written notice of such requirement prior to such disclosure. The Owning Party receiving such notice may then either seek appropriate\nprotective relief from all or part of such requirement (including confidential treatment of any such disclosure if required) or waive the Requested\nParty’s compliance with the provisions of this Agreement with respect to all or part of such requirement. Each Party agrees that if it is the\nRequested Party, it will reasonably cooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to\nseek. If the Owning Party fails to obtain such relief, and, in the opinion of counsel for the Requested Party, the Requested Party is legally\ncompelled to disclose any of the Confidential Information, then the Requested Party may disclose that portion of the Confidential Information\nwhich counsel to such Requested Party advises that it is compelled to disclose, but no more than what is legally required.\n8. Relief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be difficult to ascertain,\nthe Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each other, specific\nperformance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this Agreement and that\nsuch Party seeking equitable relief may do so without the necessity to post any bond therefor.\n9. Right to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information that it previously has\ndisclosed or will disclose to the\nother Party pursuant to this Agreement, and each of the Parties shall indemnify and hold harmless the other Party from all claims by a third party\nrelating to the wrongful disclosure of such third party’s information. Otherwise, neither of the Parties makes any representation or warranty,\nexpress or implied, with respect to any Confidential Information, except as set forth in Section 2 above, or as may be provided in definitive\nagreements, if any, that may be executed after the date hereof in connection with the Transaction or otherwise. Neither of the Parties shall be\nliable for indirect, incidental, consequential or punitive damages of any nature or kind resulting from or arising in connection with this\nAgreement or its violation.\n10. Disclosure. Except as required by law, all media releases and public announcements or disclosures by either of the Parties relating to\nthis Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the release thereof. It is\nunderstood and agreed that, except in accordance with Section 7 of this Agreement, neither Party shall disclose to any third party (other than its\nRepresentatives) the fact that the Parties are in discussions concerning the Transaction, or the status or terms of such discussions, without the\nprior written consent of the other Party.\n11. Term. This Agreement shall continue in full force and effect for a period of two (2) years from the date hereof and then shall\nautomatically expire and terminate. The obligations of the Parties with respect to Confidential Information and under Section 13, however, shall\ncontinue after the termination of this Agreement.\n12. Right to Continue Activities. Subject to the nondisclosure and use restrictions set forth in this Agreement, each Party’s right to develop,\nuse and market products and services similar to or competitive with those of the other Party shall remain unimpaired. Each Party acknowledges\nthat the other Party may already possess or have developed products or services similar to or competitive with those of the other Party disclosed\nin the Confidential Information.\n13. Access to and Solicitation of Employees.\n(a) Except as otherwise provided in this Section 13(a), II-VI hereby agrees that neither it nor any of its Representatives will, without\nthe express prior written permission of Anadigics, initiate or maintain contact with any officer, director or employee of Anadigics or any of\nits subsidiaries regarding the Confidential Information or the Transaction. II-VI shall submit or direct all communications regarding the\nTransaction and Confidential Information to Ronald Michels, Chairman and Chief Executive Officer of Anadigics or, at Ronald Michels’\ndirection to, Terrence G. Gallagher, Executive Vice President and Chief Financial Officer of Anadigics.\n(b) Each Party agrees that for a period of eighteen (18) months from the date hereof, it will not (and it will not assist, advise or\nencourage others to), directly or indirectly, unless specifically consented to in advance in writing by the other Party, solicit for employment\n(other than advertising or public solicitation that is not a targeted solicitation of the other Party’s employees) (i) any executive officer of the\nother Party, (ii) any officer with the title of Vice President or higher of the other Party to whom the Party was first introduced in the course\nof discussions with respect to the Transaction, (iii) any sales personnel of the other Party, and (iv) any engineering or technical personnel of\nthe other Party.\n14. Governing Law; Whole Agreement. This Agreement shall be governed by and construed under the laws of the State of Delaware\nwithout giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. There are no understandings,\nagreements or representations relating to the subject matter hereof, express or implied, not specified herein.\n15. Securities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public information about a\ncompany from purchasing or selling securities of such company or from communicating such information to a third party under circumstances in\nwhich it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such information.\n16. Amendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the observance of any term or\nprovision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either Party in exercising any right,\npower or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any other right, power or privilege granted hereunder.\n17. Successors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective successors\n(including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the prior\nexpress written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control transaction\nshall be expressly permitted.\n18. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein\nand supersedes all prior discussions between them whether written or oral, except that that certain existing confidentiality agreement dated\nOctober 23, 2015 shall remain in full force and effect. This Agreement may be modified only in writing, signed by each Party.\n19. Counterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original and all of which\nshall be deemed to be one and the same instrument.\n[signatures appear on next page]\n[signature page to Mutual Non-Disclosure Agreement—November 16, 2015]\nIN WITNESS WHEREQF, the Parties have executed this Agreement as of the date first above written.\nII-VI INCORPORATED\nBy: /s/ Francis J. Kramer\nName: Francis J. Kramer\nTitle: Chairman & CEO\nANADIGICS, INC.\nBy: /s/ Ron Michels\nName: Ron Michels\nTitle: Chairman & CEO	EX-99.(D)(3) 8 d110802dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nCONFIDENTIAL\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement"), dated as of November 16, 2015, is between II-VI\nIncorporated, a Pennsylvania corporation ("II-VI"), and Anadigics, Inc., a Delaware corporation ("Anadigics"), and is entered into to ensure the\nprotection and preservation of the confidential and/or proprietary nature of information that the Parties (as hereinafter defined) contemplate\ndisclosing to one another in connection with certain transactions or other business arrangements under discussion by the Parties, including, but\nnot limited to, business combination transactions, merger transactions, asset sales, stock purchases, consolidations, strategic alliances, joint\nventures, technology transfers, supply and other commercial arrangements and similar transactions or arrangements involving or between the\nParties (any such transaction or arrangement is herein referred to as the "Transaction").\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the "Disclosing Party" and the Party\nreceiving the Confidential Information is the "Receiving Party." Each of II-VI and Anadigics and their respective subsidiaries and affiliates shall\nbe referred to herein individually as a "Party" and collectively as the "Parties."\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, the term "Confidential Information" shall include the following\ninformation, whether communicated in tangible form, electronically or orally and regardless of whether specifically identified as "proprietary"\nor\n"confidential": (i) all business information, plans, tactics or materials of the Parties, including, but not limited to, business plans, practices and\nstrategies, product plans and product roadmaps, employee lists, employee benefit programs, customer lists, market analyses, compilations and\ninformation, pricing policies, financial information or information regarding research and development, engineering, quality assurance,\nregulatory matters, sales and marketing, accounting, legal matters, product resources, supply resources, financing plans, information, plans or\nproposals relating to capital structure, owned or leased assets and liquidity needs, directors, officers, employees, financing sources, customers,\nvendors, strategic partners, stockholders, affiliates, customer contracts or proposals for customer contracts, contracts with vendors or suppliers\nor\nplans or proposals for strategic alliances or other business relations with third parties; (ii) all trade secrets, technical know-how, formulae,\nmethods, processes, frameworks, ideas, inventions (whether or not patentable), schematics, systems writings, hardware and software designs and\ncode (source and object), product specifications, prototypes, product samples; (iii) all manuals, systems documentation, reports, notes, analyses,\ncompilations,\nstudies, interpretations, correspondence, memoranda or other materials related to any of the items described in clauses (i) and (ii) above; (iv) all\nother written or electronic information which is submitted or disclosed by the Disclosing Party to the Receiving Party hereunder, whether or not\ndesignated by the Disclosing Party as being confidential or proprietary at the time of its first disclosure; and (v) all verbal information which\nthe\nDisclosing Party designates as confidential or proprietary at the time of its first disclosure and thereafter designates as such in a writing delivered\nto the Receiving Party within 30 days after its first disclosure.\n2. Non-Disclosure and Use Restrictions. Each Party shall keep the Confidential Information of the other Party strictly confidential for a\nperiod of two (2) years from the date hereof, except for Confidential Information constituting trade secrets, which each Party shall keep\nconfidential indefinitely, and shall not disclose such Confidential Information to any third parties, other than its Representatives, without\nthe\nprior written consent of the Disclosing Party. Each Party shall use the Confidential Information received from the other Party only for the\npurpose of evaluating, negotiating or consummating the Transaction (including the effects of its consummation), and in no event for any other\ncommercial, business or other purpose or for any other purpose unrelated to the Transaction that is competitively, strategically or otherwise\ndisadvantageous, directly or indirectly, to the Disclosing Party. Each Party represents and warrants that in considering a possible Transaction and\nreviewing the Confidential Information, such Party (i) is acting solely on its own behalf and not as part of a group with any unaffiliated parties,\nand (ii) has not entered into any exclusivity arrangements with any potential providers of debt or related financing for a possible Transaction that\nwould preclude such providers from providing debt or related financing to any other parties proposing to enter into a transaction with either Party\nreasonably comparable to the Transaction. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work\nrights, or any other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one\nParty to the other Party.\n3. Copying. Confidential Information supplied by one Party shall not be reproduced by the other Party in any form except to the extent\nreasonably necessary to enable such other Party to evaluate the Transaction.\n4. Care. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and confidential and shall use the\nsame degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as the Receiving Party provides\nto\nprotect its own Confidential Information. The Receiving Party shall maintain the Confidential Information received from the Disclosing\nParty\nConfidential in confidence Information and shall retain only such to those Confidentia of its directors, Information officers, in a employees, secure place. affiliates, The Receiving agents and Party legal, shall financial disclose and and accounting permit access advisors to such (in each\nsuch case, a "Representative") who reasonably need to know such information in order to evaluate the Transaction and with whom the\nReceiving Party has established practices or procedures to maintain the confidence of such Confidential Information, who are informed of the\nconfidential and proprietary nature of such information and the provisions of this Agreement, and who agree to be bound by the provisions\nhereof The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its Representatives.\n5. Ownership. All Confidential Information shall remain the property of the Disclosing Party, and all documents or other tangible or\nelectronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the option of the\nReceiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party's need for it has expired or upon the\nrequest of the Disclosing Party. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6.\nLimitation. It is understood that the term "Confidential Information" does not include information that:\n(a) has been published, as evidenced by written documentation, or is now or becomes in the public domain without breach of this\nAgreement by the Receiving Party;\n(b) prior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c) subsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in such party's\npossession and is not restricted from further disseminating the information; or\n(d) is independently developed by the Receiving Party without using the Confidential Information.\n7. Legally Required Disclosure. If either Party is required by law or by any court of competent authority or governmental agency or\nauthority\nor\nin\nconnection with any legal or administrative proceeding to disclose any of the Confidentia Information of the other Party, then\nthe\nParty so required to disclose the Confidential Information (the "Requested Party") will provide such other Party (the "Owning Party") with\nprompt written notice of such requirement prior to such disclosure. The Owning Party receiving such notice may then either seek appropriate\nprotective relief from all or part of such requirement (including confidential treatment of any such disclosure if required) or waive the Requested\nParty's compliance with the provisions of this Agreement with respect to all or part of such requirement. Each Party agrees that if it is the\nRequested Party, it will reasonably cooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses\nto\nseek. If the Owning Party fails to obtain such relief, and, in the opinion of counsel for the Requested Party, the Requested Party is legally\ncompelled to disclose any of the Confidential Information, then the Requested Party may disclose that portion of the Confidential Information\nwhich counsel to such Requested Party advises that it is compelled to disclose, but no more than what is legally required.\n8. Relief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be difficult to ascertain,\nthe Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each other, specific\nperformance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this Agreement and that\nsuch Party seeking equitable relief may do so without the necessity to post any bond therefor.\n9. Right to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information that it previously has\ndisclosed or will disclose to the\nother Party pursuant to this Agreement, and each of the Parties shall indemnify and hold harmless the other Party from all claims by a third party\nrelating to the wrongful disclosure of such third party's information. Otherwise, neither of the Parties makes any representation or warranty,\nexpress or implied, with respect to any Confidential Information, except as set forth in Section 2 above, or as may be provided in definitive\nagreements, if any, that may be executed after the date hereof in connection with the Transaction or otherwise. Neither of the Parties shall be\nliable for indirect, incidental, consequential or punitive damages of any nature or kind resulting from or arising in connection with this\nAgreement or its violation.\n10. Disclosure. Except as required by law, all media releases and public announcements or disclosures by either of the Parties relating to\nthis Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the release thereof.\nIt\nis\nunderstood and agreed that, except in accordance with Section 7 of this Agreement, neither Party shall disclose to any third party (other than its\nRepresentatives) the fact that the Parties are in discussions concerning the Transaction, or the status or terms of such discussions, without the\nprior written consent of the other Party.\n11. Term This Agreement shall continue in full force and effect for a period of two (2) years from the date hereof and then shall\nautomatically expire and terminate. The obligations of the Parties with respect to Confidential Information and under Section 13, however, shall\ncontinue after the termination of this Agreement.\n12. Right to Continue Activities. Subject to the nondisclosure and use restrictions set forth in this Agreement, each Party's right to develop,\nuse and market products and services similar to or competitive with those of the other Party shall remain unimpaired. Each Party acknowledges\nthat the other Party may already possess or have developed products or services similar to or competitive with those of the other Party disclosed\nin the Confidential Information.\n13. Access to and Solicitation of Employees.\n(a) Except as otherwise provided in this Section 13(a), II-VI hereby agrees that neither it nor any of its Representatives will, without\nthe express prior written permission of Anadigics, initiate or maintain contact with any officer, director or employee of Anadigics or any of\nits subsidiaries regarding the Confidential Information or the Transaction. II-VI shall submit or direct all communications regarding the\nTransaction and Confidential Information to Ronald Michels, Chairman and Chief Executive Officer of Anadigics or, at Ronald Michels'\ndirection to, Terrence G. Gallagher, Executive Vice President and Chief Financial Officer of Anadigics.\n(b) Each Party agrees that for a period of eighteen (18) months from the date hereof, it will not (and it will not assist, advise\nor\nencourage others to), directly or indirectly, unless specifically consented to in advance in writing by the other Party, solicit for employment\n(other than advertising or public solicitation that is not a targeted solicitation of the other Party's employees) (i) any executive officer of the\nother Party, (ii) any officer with the title of Vice President or higher of the other Party to whom the Party was first introduced in the course\nof discussions with respect to the Transaction, (iii) any sales personnel of the other Party, and (iv) any engineering or technical personnel of\nthe other Party.\n14. Governing Law; Whole Agreement. This Agreement shall be governed by and construed under the laws of the State of Delaware\nwithout giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. There are no understandings,\nagreements or representations relating to the subject matter hereof, express or implied, not specified herein.\n15. Securities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public information about a\ncompany from purchasing or selling securities of such company or from communicating such information to a third party under circumstances in\nwhich it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such information.\n16. Amendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the observance of any term or\nprovision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either Party in exercising any right,\npower or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any other right, power or privilege granted hereunder.\n17. Successors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective successors\n(including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the prior\nexpress written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control transaction\nshall be expressly permitted.\n18. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein\nand supersedes all prior discussions between them whether written or oral, except that that certain existing confidentiality agreement dated\nOctober 23, 2015 shall remain in full force and effect. This Agreement may be modified only in writing, signed by each Party.\n19. Counterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original and all of which\nshall be deemed to be one and the same instrument.\n[signatures appear on next page]\n[signature page to Mutual Non-Disclosure Agreement-November 16, 2015]\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nII-VI INCORPORATED\nBy: /s/ Francis J. Kramer\nName: Francis J. Kramer\nTitle: Chairman & CEO\nANADIGICS, INC.\nBy: /s/ Ron Michels\nName: Ron Michels\nTitle: Chairman & CEO	EX-99.(D)(3) 8 d110802dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nCONFIDENTIAL\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of November 16, 2015, is between II-VI\nIncorporated, a Pennsylvania corporation (“II-VI”), and Anadigics, Inc., a Delaware corporation (“Anadigics”), and is entered into to ensure the\nprotection and preservation of the confidential and/or proprietary nature of information that the Parties (as hereinafter defined) contemplate\ndisclosing to one another in connection with certain transactions or other business arrangements under discussion by the Parties, including, but\nnot limited to, business combination transactions, merger transactions, asset sales, stock purchases, consolidations, strategic alliances, joint\nventures, technology transfers, supply and other commercial arrangements and similar transactions or arrangements involving or between the\nParties (any such transaction or arrangement is herein referred to as the “Transaction”).\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the “Disclosing Party” and the Party\nreceiving the Confidential Information is the “Receiving Party.” Each of II-VI and Anadigics and their respective subsidiaries and affiliates shall\nbe referred to herein individually as a “Party” and collectively as the “Parties.”\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall include the following\ninformation, whether communicated in tangible form, electronically or orally and regardless of whether specifically identified as “proprietary” or\n“confidential”: (i) all business information, plans, tactics or materials of the Parties, including, but not limited to, business plans, practices and\nstrategies, product plans and product roadmaps, employee lists, employee benefit programs, customer lists, market analyses, compilations and\ninformation, pricing policies, financial information or information regarding research and development, engineering, quality assurance,\nregulatory matters, sales and marketing, accounting, legal matters, product resources, supply resources, financing plans, information, plans or\nproposals relating to capital structure, owned or leased assets and liquidity needs, directors, officers, employees, financing sources, customers,\nvendors, strategic partners, stockholders, affiliates, customer contracts or proposals for customer contracts, contracts with vendors or suppliers or\nplans or proposals for strategic alliances or other business relations with third parties; (ii) all trade secrets, technical know-how, formulae,\nmethods, processes, frameworks, ideas, inventions (whether or not patentable), schematics, systems writings, hardware and software designs and\ncode (source and object), product specifications, prototypes, product samples; (iii) all manuals, systems documentation, reports, notes, analyses,\ncompilations,\nstudies, interpretations, correspondence, memoranda or other materials related to any of the items described in clauses (i) and (ii) above; (iv) all\nother written or electronic information which is submitted or disclosed by the Disclosing Party to the Receiving Party hereunder, whether or not\ndesignated by the Disclosing Party as being confidential or proprietary at the time of its first disclosure; and (v) all verbal information which the\nDisclosing Party designates as confidential or proprietary at the time of its first disclosure and thereafter designates as such in a writing delivered\nto the Receiving Party within 30 days after its first disclosure.\n2. Non-Disclosure and Use Restrictions. Each Party shall keep the Confidential Information of the other Party strictly confidential for a\nperiod of two (2) years from the date hereof, except for Confidential Information constituting trade secrets, which each Party shall keep\nconfidential indefinitely, and shall not disclose such Confidential Information to any third parties, other than its Representatives, without the\nprior written consent of the Disclosing Party. Each Party shall use the Confidential Information received from the other Party only for the\npurpose of evaluating, negotiating or consummating the Transaction (including the effects of its consummation), and in no event for any other\ncommercial, business or other purpose or for any other purpose unrelated to the Transaction that is competitively, strategically or otherwise\ndisadvantageous, directly or indirectly, to the Disclosing Party. Each Party represents and warrants that in considering a possible Transaction and\nreviewing the Confidential Information, such Party (i) is acting solely on its own behalf and not as part of a group with any unaffiliated parties,\nand (ii) has not entered into any exclusivity arrangements with any potential providers of debt or related financing for a possible Transaction that\nwould preclude such providers from providing debt or related financing to any other parties proposing to enter into a transaction with either Party\nreasonably comparable to the Transaction. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work\nrights, or any other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one\nParty to the other Party.\n3. Copying. Confidential Information supplied by one Party shall not be reproduced by the other Party in any form except to the extent\nreasonably necessary to enable such other Party to evaluate the Transaction.\n4. Care. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and confidential and shall use the\nsame degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as the Receiving Party provides\nto protect its own Confidential Information. The Receiving Party shall maintain the Confidential Information received from the Disclosing Party\nin confidence and shall retain such Confidential Information in a secure place. The Receiving Party shall disclose and permit access to such\nConfidential Information only to those of its directors, officers, employees, affiliates, agents and legal, financial and accounting advisors (in each\nsuch case, a “Representative”) who reasonably need to know such information in order to evaluate the Transaction and with whom the\nReceiving Party has established practices or procedures to maintain the confidence of such Confidential Information, who are informed of the\nconfidential and proprietary nature of such information and the provisions of this Agreement, and who agree to be bound by the provisions\nhereof. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its Representatives.\n5. Ownership. All Confidential Information shall remain the property of the Disclosing Party, and all documents or other tangible or\nelectronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the option of the\nReceiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or upon the\nrequest of the Disclosing Party. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6. Limitation. It is understood that the term “Confidential Information” does not include information that:\n(a) has been published, as evidenced by written documentation, or is now or becomes in the public domain without breach of this\nAgreement by the Receiving Party;\n(b) prior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c) subsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in such party’s\npossession and is not restricted from further disseminating the information; or\n(d) is independently developed by the Receiving Party without using the Confidential Information.\n7. Legally Required Disclosure. If either Party is required by law or by any court of competent authority or governmental agency or\nauthority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information of the other Party, then the\nParty so required to disclose the Confidential Information (the “Requested Party”) will provide such other Party (the “Owning Party”) with\nprompt written notice of such requirement prior to such disclosure. The Owning Party receiving such notice may then either seek appropriate\nprotective relief from all or part of such requirement (including confidential treatment of any such disclosure if required) or waive the Requested\nParty’s compliance with the provisions of this Agreement with respect to all or part of such requirement. Each Party agrees that if it is the\nRequested Party, it will reasonably cooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to\nseek. If the Owning Party fails to obtain such relief, and, in the opinion of counsel for the Requested Party, the Requested Party is legally\ncompelled to disclose any of the Confidential Information, then the Requested Party may disclose that portion of the Confidential Information\nwhich counsel to such Requested Party advises that it is compelled to disclose, but no more than what is legally required.\n8. Relief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be difficult to ascertain,\nthe Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each other, specific\nperformance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this Agreement and that\nsuch Party seeking equitable relief may do so without the necessity to post any bond therefor.\n9. Right to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information that it previously has\ndisclosed or will disclose to the\nother Party pursuant to this Agreement, and each of the Parties shall indemnify and hold harmless the other Party from all claims by a third party\nrelating to the wrongful disclosure of such third party’s information. Otherwise, neither of the Parties makes any representation or warranty,\nexpress or implied, with respect to any Confidential Information, except as set forth in Section 2 above, or as may be provided in definitive\nagreements, if any, that may be executed after the date hereof in connection with the Transaction or otherwise. Neither of the Parties shall be\nliable for indirect, incidental, consequential or punitive damages of any nature or kind resulting from or arising in connection with this\nAgreement or its violation.\n10. Disclosure. Except as required by law, all media releases and public announcements or disclosures by either of the Parties relating to\nthis Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the release thereof. It is\nunderstood and agreed that, except in accordance with Section 7 of this Agreement, neither Party shall disclose to any third party (other than its\nRepresentatives) the fact that the Parties are in discussions concerning the Transaction, or the status or terms of such discussions, without the\nprior written consent of the other Party.\n11. Term. This Agreement shall continue in full force and effect for a period of two (2) years from the date hereof and then shall\nautomatically expire and terminate. The obligations of the Parties with respect to Confidential Information and under Section 13, however, shall\ncontinue after the termination of this Agreement.\n12. Right to Continue Activities. Subject to the nondisclosure and use restrictions set forth in this Agreement, each Party’s right to develop,\nuse and market products and services similar to or competitive with those of the other Party shall remain unimpaired. Each Party acknowledges\nthat the other Party may already possess or have developed products or services similar to or competitive with those of the other Party disclosed\nin the Confidential Information.\n13. Access to and Solicitation of Employees.\n(a) Except as otherwise provided in this Section 13(a), II-VI hereby agrees that neither it nor any of its Representatives will, without\nthe express prior written permission of Anadigics, initiate or maintain contact with any officer, director or employee of Anadigics or any of\nits subsidiaries regarding the Confidential Information or the Transaction. II-VI shall submit or direct all communications regarding the\nTransaction and Confidential Information to Ronald Michels, Chairman and Chief Executive Officer of Anadigics or, at Ronald Michels’\ndirection to, Terrence G. Gallagher, Executive Vice President and Chief Financial Officer of Anadigics.\n(b) Each Party agrees that for a period of eighteen (18) months from the date hereof, it will not (and it will not assist, advise or\nencourage others to), directly or indirectly, unless specifically consented to in advance in writing by the other Party, solicit for employment\n(other than advertising or public solicitation that is not a targeted solicitation of the other Party’s employees) (i) any executive officer of the\nother Party, (ii) any officer with the title of Vice President or higher of the other Party to whom the Party was first introduced in the course\nof discussions with respect to the Transaction, (iii) any sales personnel of the other Party, and (iv) any engineering or technical personnel of\nthe other Party.\n14. Governing Law; Whole Agreement. This Agreement shall be governed by and construed under the laws of the State of Delaware\nwithout giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. There are no understandings,\nagreements or representations relating to the subject matter hereof, express or implied, not specified herein.\n15. Securities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public information about a\ncompany from purchasing or selling securities of such company or from communicating such information to a third party under circumstances in\nwhich it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such information.\n16. Amendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the observance of any term or\nprovision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either Party in exercising any right,\npower or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any other right, power or privilege granted hereunder.\n17. Successors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective successors\n(including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the prior\nexpress written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control transaction\nshall be expressly permitted.\n18. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein\nand supersedes all prior discussions between them whether written or oral, except that that certain existing confidentiality agreement dated\nOctober 23, 2015 shall remain in full force and effect. This Agreement may be modified only in writing, signed by each Party.\n19. Counterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original and all of which\nshall be deemed to be one and the same instrument.\n[signatures appear on next page]\n[signature page to Mutual Non-Disclosure Agreement—November 16, 2015]\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nII-VI INCORPORATED\nBy: /s/ Francis J. Kramer\nName: Francis J. Kramer\nTitle: Chairman & CEO\nANADIGICS, INC.\nBy: /s/ Ron Michels\nName: Ron Michels\nTitle: Chairman & CEO
318ee863f0384923c019b239c78b1d83.pdf	effective_date jurisdiction party term	EX-99 .257 101 d97931exv99w257.txt PSC DOCUMENT 233 CONFIDENTIALITY AGREEMENT This CONFIDENTIALITY AGREEMENT ("Agreement") is made\nand entered into by and between AEP Energy Services, Inc. an Ohio corporation having a principal place of business at 1 Riverside Plaza, Columbus, Ohio\n43215 ("AEPES") and, Perot Systems Corporation having a principal place of business at 12404 Park Central Dr. , Dallas, TX 75251 ("Company"). Company and\nAEP may be hereinafter referred to individually as "Party" and collectively as the "Parties". WITNESSETH: WHEREAS, AEPES and Company are considering a\npossible business relationship (the "Transaction") by which the Parties would explore several business opportunities, including a potential purchase of or\nparticipating ownership interest in the WHEREAS, each of the Parties and their affiliates are in possession of trade secrets, technology, drawing specifications\nand/or other confidential information relating to its businesses and business interests and may find it desirable and necessary to exchange such information\nduring the course of these negotiations. NOW, THEREFORE , In consideration of the mutual covenants contained herein, the Parties agree as follows: 1.\nCONFIDENTIAL INFORMATION. "Confidential Information" is defined to include any information (not included in Section 4 below) that is disclosed by or about\neither party and/or their affiliate(s) (the "Disclosing Party") to the other party and/or their affiliate(s) (the "Receiving Party") in connection with the Transaction,\nsuch as: a. Written information or machine readable data, including notes, reports, assessments, specifications, drawings, financial statements and projections,\nsoftware and databases, customer information, sales and marketing strategies, and any other written information or machine readable data; b. Orally conveyed\ninformation, including but not limited to demonstrations; c. Any hardware, including but not limited to samples, devices and any other physical embodiments\ndelivered to the Receiving Party; and d. Any documents jointly or separately generated by the Parties that reflect, interpret, incorporate, evaluate, or are derived\nfrom the information described above (such documents being hereinafter referred to as "Evaluation Material"). 2 . CONFIDENTIALITY . For a period of two years\nfrom the date hereof, the Receiving Party agrees: a. to keep all Confidential Information confidential and not to copy, distribute, disclose or disseminate the\nConfidential Information in any manner to any person or entity, provided, however, that a limited number of copies of written materials may be made by the\nReceiving Party in order for the Receiving Party to adequately use the Confidential Information within the terms and conditions of this Agreement and that each\ncopy is considered as Confidential Information and as an original in accordance with this Agreement; and b. not to disclose that the Evaluation Material has been\ngenerated, or that either Party and any entity identified in the Confidential Information may be considering a business relationship or have had, are having or\npropose to have any discussions with respect thereto. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to those\nemployees, officers, directors, agents, consultants, and advisors (collectively "Representatives") whose access is necessary to conduct the investigations and\nnegotiations contemplated herein and who have been informed of the confidentiality restrictions contained in this Agreement. However, the Receiving Party may\nonly disclose the Confidential Information to non-employee Representatives of the Company whose access is necessary if the non-employee Representatives are\nprovided with a copy of this Confidentiality Agreement and agree to be bound by the terms of this Agreement. Each Party agrees to be responsible for the actions,\nuses and disclosures of any of its Representatives. 3. OWNERSHIP AND USE OF CONFIDENTIAL INFORMATION. All Confidential Information except\nEvaluation Materials shall remain the property of the Disclosing Party. No license or other rights under any patents or other proprietary rights is granted or implied\nby the conveyance of the Confidential Information. The Receiving Party shall not use the Confidential Information for any purpose other than to effectuate the\ninvestigative and negotiation purposes of this Agreement. 4 . NON-CONFIDENTIAL INFORMATION. The restrictions and confidentiality obligations set forth in this\nAgreement shall not apply to Confidential Information which: 2 a. is or becomes part of the public domain through no fault of the Receiving Party. b . is disclosed to\nthe Receiving Party by a third party when the Receiving Party reasonably believes the third party was not prohibited from making such disclosure; c. was in the\npossession of the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing Party; d. subject to Section 8 hereof, is required to be disclosed\nto comply with any applicable law, order, regulation or ruling. 5. PUBLIC DISCLOSURE . Neither Party shall make any press release or other public utterances of\nany kind regarding this Agreement, the Transaction, the information received pursuant to this Agreement or the contents of this Agreement without prior written\nconsent of the other Party. 6. DISPOSITION OF CONFIDENTIAL INFORMATION . Either Party (the "requesting Party") upon written request from the other Party,\nshall promptly, but in any case within 14 days, return to the other Party or destroy all Confidential Information, including without limitation, drawings and other\ndocuments, and any copies or summaries thereof, but excepting Evaluation Material. If the Confidential Information is destroyed, upon request, the other Party\nshall provide the requesting Party with a certificate stating that all Confidential Material has been destroyed. The Evaluation Material, including all copies thereof,\nwill be destroyed by the other Party within said period and, if requested by the requesting Party, the other Party shall provide the requesting Party with a\ncertificate of destruction. 7 . PROTECTION OF CONFIDENTIAL INFORMATION. Each Party shall use efforts to protect the confidentiality of the Confidential\nInformation which are at least as stringent as those which it uses to protect its own confidential information. 8. LEGALLY REQUIRED DISCLOSURE. If either\nParty becomes legally compelled to disclose any of the Confidential Information, or if such disclosure is necessary in order to obtain or maintain regulatory or\ngovernmental approvals, applications or exemptions, such Party will provide the other Party with as much advance notice as practicable to afford the opportunity\nto seek an appropriate protective order or other remedy to prevent or narrow the disclosure or to ensure that such information will continue to be treated in as\nconfidential a manner as possible. In such cases, the Party may furnish only that portion of the Confidential Information which is legally required or necessary and\nshall cooperate with the other Party to enable it to obtain a protective order or other reliable assurance that confidential treatment will be accorded the same. 9.\nTERM OF AGREEMENT. This Agreement will be effective as of the date hereof and will terminate two years after its effective date. 3 11. WARRANTIES . Each\nParty acknowledges that other Party (including its trustees, directors, officers, employees, and agents) makes no express of implied representation or warranty as\nto the accuracy or completeness of any Confidential information and that the other Party shall have no liability arising out of or relating to the Party's or its\nRepresentatives' use of any Confidential Information. 12. REMEDIES . Each Party understands and agrees that monetary damages would not be adequate\nremedy for a breach of this Agreement. In the event of any breach or threatened breach by either Party of this Agreement, the other Party shall be entitled to\ninjunctive and other equitable relief, and that there shall be no pleading in defense thereto that there would be an adequate remedy at law. Such remedy shall be\nin addition to all other remedies available to it at law or in equity. The non-breaching Party shall also be entitled to recover its reasonable legal fees and expenses\nand costs in enforcing this Agreement or recovering damages for any breach hereof. 13 . NOTICES . Addresses for notices and requests are: AEP Energy\nServices, Inc. 1 Riverside Plaza Columbus, Ohio 43215 Attention: GENERAL COUNSEL PEROT SYSTEMS CORPORATION 12404 PARK CENTRAL DR.\nDALLAS, TX 78251 Attention: GENERAL COUNSEL Notices shall be in writing and shall be given to the designated representative, either by personal delivery or\nby the U.S . Mail, facsimile, or other similar means mutually agreeable to AEPES and the Company. All notices shall be effective upon receipt. 14. APPLICABLE\nLAW. This Agreement shall be construed and enforced in accordance with the laws of the State of Ohio, without regard to the conflict of laws in effect therein. 15.\nASSIGNMENT. This Agreement may not be assigned, delegated or transferred by either Party in any way, without the prior written consent of the other Party,\nwhich consent shall not be unreasonably withheld or delayed. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their\nrespective permitted successors and assigns. 4 16 . ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between the Parties, supercedes\nany prior understandings or representations relating to the subject matter hereof, and shall not be subject to change or amendment except by subsequent written\nagreement signed by authorized representatives or the Parties. All provisions of this Agreement are severable, and the unenforceability of any of the provisions of\nthis Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement. 17. FINALIZATION OF TRANSACTION. Until AEPES\nand the Company have executed the documents necessary to finalize the Transaction, neither Party shall have any liability to the other Party with respect to a\nTransaction. 18. NO WAIVER. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any other right, power or privilege hereunder. 19. COUNTERPARTS; FACSIMILE\nEXECUTION. This Agreement may be executed in counterparts, with each executed counterpart having the same force and effect as the original counterpart.\nThis Agreement shall be deemed binding upon the Parties if each Party executes this Agreement, sends the executed Agreement via facsimile to the other Party,\nand receives confirmation of receipt of the executed Agreement from the other Party. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement\nas of the 22ND day of May 2001. AEP Energy Services, Inc. By: /s/ By: /s/ ----------------------------- ------------------------ Title: SRVP - Administration Title: Vice\nPresident -------------------------- --------------------- AEP Energy Services, Inc. Perot Systems Corp. 5	EX-99.257 101 d97931exv99w257.txt PSC DOCUMENT 233 CONFIDENTIALITY AGREEM ENT This CONFIDENTIALITY AGREEMENT ("Agreement") is made\nand entered into by and between AE P Energy Services, Inc. an Ohio corporation having a principal place of business at 1 Riverside Plaza, Columbus, Ohio\n43215 ("AEPES") and, PerotSystems Corporation having a principal place of business at 12404 Park Central Dr., Dallas, TX 75251 ("Company"). Company and\nAEP may be hereinafter referred to individually as "P arty" and collectively as the "Parties". WITNESSETH: WHEREAS, AE PES and Company are considering a\npossible business relationship (the "Transaction") by which the Parties would explore several business opportunities, including a potential purchase ofor\nparticipating ownership interest in the WHE REAS, each of the Parties and Iheir affiliates are in possession oftrade secrets, technology, drawing specifications\nand/or other confidential information relating to is businesses and business interests and may find itdesirable and necessary to exchange such information\nduring the course of Ihese negotiations. NOW, THE RE FORE, In consideration of Ihe mutual covenants contained herein, Ihe Parties agree as follows: 1.\nCONFIDENTIAL IN FORMATION. "Confidential Information" is defined to include any information (not included in Section 4 below) that is disclosed by or about\neither party and/or their affiliate(s) (the "Disclosing Party") to the olher party and/or Iheir affiliate(s) (Ihe "Receiving Party") in connection with the Transaction,\nsuch as: a. Written information or machine readable data, including notes, reports, assessmens, specifications, drawings, financial statemens and projections,\nsoftware and databases, customer information, sales and marketing strategies, and any other written information or machine readable data; b. Orally conveyed\ninformation, including but not limited to demonstrations; c. Any hardware, including but not limited to samples, devices and any other physical embodimens\ndelivered to the Receiving Party; and d. Any documents joiany or separately generated by the Parties that reflect, interpret, incorporate, evaluate, or are derived\nfrom the information described above (such documents being hereinafter referred to as "E valuation Material"). 2. CONFIDE NTIALITY. For a period oftwo years\nfrom the date hereof, Ihe Receiving Party agrees: a. to keep all Confidential Information confidential and not to copy, distribute, disclose or disseminate the\nConfidential Information in any manner to any person or entity, provided, however, that a limited number of copies ofwritten materials may be made by the\nReceiving Party in order for the Receiving Party to adequately use the Confidential Information within the terms and conditions of this Agreement and that each\ncopy is considered as Confidential Information and as an original in accordance wilh this Agreement; and b. not to disclose thatIhe Evaluation Material has been\ngenerated, or thateither Party and any entity identified in Ihe Confidential Information may be considering a business relationship or have had, are having or\npropose to have any discussions with respectthereto. Notwithstanding the foregoing, Ihe Receiving Party may disclose Confidential Information to those\nemployees, officers, directors, agents, consultants, and advisors (collectively "Representatives") whose access is necessary to conductthe investigations and\nnegotiations contemplated herein and who have been informed ofthe confidentiality restrictions contained in this Agreement. However, the Receiving Party may\nonly disclose the Confidential Information to non-employee Representatives of Ihe Company whose access is necessary if the non-employee Representatives are\nprovided wilh a copy ofthis Confidentiality Agreement and agree to be bound by Ihe terms of this Agreement. Each Party agrees to be responsible for the actions,\nuses and disclosures of any of is Representatives. 3. OWN E RSHIP AND USE OF CONFIDENTIAL IN FORMATION. All Confidential Information except\nEvaluation Materials shall remain the property ofthe Disclosing Party. No license or other righs under any patents or other proprietary righs is granted or implied\nby the conveyance of Ihe Confidential Information. The Receiving Party shall not use the Confidential Information for any purpose other than to effectuate the\ninvestigative and negotiation purposes of Ihis Agreement. 4. NON-CONFIDENTIAL IN FORMATION. The restrictions and confidentiality obligations set forth in Ihis\nAgreementshall not apply to Confidential Information which: 2 a. is or becomes part of Ihe public domain through no faultofthe Receiving Party. b. is disclosed to\nIhe Receiving Party by a third party when the Receiving Party reasonably believes Ihe Ihird party was not prohibited from making such disclosure; c. was in the\npossession of Ihe Receiving Party on a non-confidential basis prior to disclosure by Ihe Disclosing Party; d. subjectto Section 8 hereof, is required to be disclosed\nto comply wilh any applicable law, order, regulation or ruling. 5. PU BLIC DISC LOSU RE. Neither Party shall make any press release or olher public utterances of\nany kind regarding Ihis Agreement, the Transaction, Ihe information received pursuantto this Agreement or the contents ofthis Agreement without prior written\nconsentof Ihe other Party. 6. DISPOSITION OF CONFIDE NTIAL INFORMATION. Eilher Party (the "requesting Party") upon written requestfrom the olher Party,\nshall promptly, but in any case within 14 days, return to the olher Party or destroy all Confidential Information, including without limitation, drawings and other\ndocumens, and any copies or summaries Ihereof, but excepting Evaluation Material. Ifthe Confidential Information is destroyed, upon request, Ihe other Party\nshall provide the requesting Party wilh a certificate stating Ihatall Confidential Material has been destroyed. The Evaluation Material, including all copies thereof,\nwill be destroyed by the other Party within said period and, if requested by Ihe requesting Party, Ihe other Party shall provide Ihe requesting Party with a\ncertificate ofdestruction. 7. P ROTECTION OF CONFIDE NTIAL IN FORMATION. Each Party shall use effors to protect Ihe confidentiality of the Confidential\nInformation which are at least as stringent as Ihose which it uses to protect is own confidential information. 8. LEGALLY REOUIRE D DISC LOSU RE. Ifeilher\nParty becomes legally compelled to disclose any of the Confidential Information, or if such disclosure is necessary in order to obtain or maintain regulatory or\ngovernmental approvals, applications or exemptions, such Party will provide the other Party wilh as much advance notice as practicable to afford the opportunity\nto seek an appropriate protective order or other remedy to preventor narrow Ihe disclosure or to ensure Ihatsuch information will continue to be treated in as\nconfidential a manner as possible. In such cases, the Party may furnish only that portion ofthe Confidential Information which is legally required or necessary and\nshall cooperate with Ihe other Party to enable it to obtain a protective order or other reliable assurance that confidential treatmentwill be accorded the same. 9.\nTE RM OF AGRE EM ENT. This Agreement will be effective as of Ihe date hereof and will terminate two years after is effective date. 3 11. WARRANTIES. Each\nParty acknowledges thatother Party (including is trustees, directors, officers, employees, and agens) makes no express of implied representation or warranty as\nto Ihe accuracy or completeness of any Confidential information and that Ihe other Party shall have no liability arising outofor relating to Ihe Party's or is\nRepresentatives' use of any Confidential Information. 12. RE M E DIES. Each Party understands and agrees that monetary damages would not be adequate\nremedy for a breach of this Agreement. In the eventof any breach or threatened breach by either Party ofthis Agreement, Ihe other Party shall be entitled to\ninjunctive and other equitable relief, and that Ihere shall be no pleading in defense thereto that there would be an adequate remedy at law. Such remedy shall be\nin addition to all other remedies available to it at law or in equity. The non-breaching Party shall also be entined to recover is reasonable legal fees and expenses\nand coss in enforcing this Agreementor recovering damages for any breach hereof. 13. NOTICES. Addresses for notices and requess are: AE P Energy\nSen/ices, Inc. 1 Riverside Plaza Columbus, Ohio 43215 Attention: GENERAL COUNSEL PEROT SYSTEMS CORPORATION 12404 PARK CENTRAL DR.\nDALLAS, TX 78251 Attention: GE N ERAL COUNSE L Notices shall be in writing and shall be given to the designated representative, eilher by personal delivery or\nby the US. Mail, facsimile, or other similar means mutually agreeable to AE PES and Ihe Company. All notices shall be effective upon receipt. 14. APP LICAB LE\nLAW. This Agreementshall be construed and enforced in accordance with the laws ofthe State of Ohio, without regard to the conflictof laws in effecttherein. 15.\nASSIGN M E NT. This Agreement may not be assigned, delegated or transferred by either Party in any way, wilhout Ihe prior written consentof Ihe other Party,\nwhich consentshall not be unreasonably wiIhheld or delayed. This Agreementshall be binding upon and shall inure to Ihe benefitofthe Parties hereto and their\nrespective permitted successors and assigns. 4 16. E NTIRE AG RE E M E NT. This Agreementconstitutes the entire Agreement between the Parties, supercedes\nany prior understandings or representations relating to Ihe subject matter hereof, and shall not be subject to change or amendmentexcept by subsequent written\nagreement signed by authorized representatives or Ihe Parties. All provisions ofthis Agreement are severable, and the unenforceability of any of the provisions of\nIhis Agreement shall not affect Ihe validity or enforceability ofthe remaining provisions ofthis Agreement. 17. FINALIZATION OF TRANSACTION. Until AE P ES\nand Ihe Company have executed the documens necessary to finalize the Transaction, neither Party shall have any liability to Ihe other Party with respect to a\nTransaction. 18. NO WAIVER. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver Ihereof, nor shall any\nsingle or partial exercise thereof preclude any other or furlher exercise of any olher right, power or privilege hereunder. 19. COU NTE R PARTS; FAC SIM ILE\nEXECUTION. This Agreement may be executed in counterpars, with each executed counterpart having the same force and effect as the original counterpart.\nThis Agreementshall be deemed binding upon Ihe Parties ifeach Party executes Ihis Agreement, sends the executed Agreement via facsimile to the olher Party,\nand receives confirmation of receipt of the executed Agreement from the other Party. IN WITN ESS WHE REOF, the Parties hereto have executed this Agreement\nas ofthe 22N D day of May 2001. AE P Energy Services, Inc. By: /s/ By: /s/ ----------------------------------------------------- Title: SRVP - Administration Title: Vice\nPresident ----------------------------------------------- AEP Energy Sen/ices, Inc. PerotSystems Corp. 5	EX-99.257 101 d97931exv99w257.txt PSC DOCUMENT 233 CONFIDENTIALITY AGREEMENT This CONFIDENTIALITY AGREEMENT ("Agreement") is made\nand\nentered into by and between AEP Energy Services, Inc. an Ohio corporation having a principal place of business at 1 Riverside Plaza, Columbus, Ohio\n43215 ("AEPES") and, Perot ystems Corporation having a principal place of business at 12404 P ark Central Dr., Dallas, TX 75251 ("Company"). Company and\nAEP may be hereinafter referred to individually as "Party" and collectively as the "Parties". WITNESSETH: WHEREAS, AEPES and Company are considering a\npossible business relationship (the "Transaction") by which the Parties would explore several business opportunities, including a potential purchase of or\nparticipating ownership interest in the WHEREAS, each of the Parties and their affiliates are in possession of trade secrets, technology, drawing specifications\nand/or other confidential information relating to its businesses and business interests and may find it desirable and necessary to exchange such information\nduring the course of these negotiations. NOW, THEREFORE, In consideration of the mutua covenants contained herein, the arties agree as follows: 1.\nCONFIDENTIAL INFORMATION. "Confidential Information" is defined to include any information (not included in Section 4 below) that is disclosed by or about\neither party and/or their affiliate(s) (the "Disclosing Party") to the other party and/or their affiliate(s) (the "Receiving Party") in connection with the Transaction,\nsuch as: a. Written information or machine readable data, including notes, reports, assessments, specifications, drawings, financial statements and projections,\nsoftware and databases, customer information sales and marketing strategies, and any other written information or machine readable data; b. Orally conveyed\ninformation, including but not limited to demonstrations; C. Any hardware, including but not limited to samples, devices and any other physical embodiments\ndelivered to the Receiving arty; and d. Any documents jointly or separately generated by the arties that reflect, interpret, incorporate, evaluate, or are derived\nfrom\nthe information described above (such documents being hereinafter referred to as Evaluation Material"). 2. For a period of two\nyears\nfrom the date hereof, the Receiving Party agrees a. to keep all Confidential Information confidential and not to copy, distribute, disclose or disseminate the\nConfidential Information in any manner to any person or entity, provided, however, that a limited number of copies of written materials may be made by the\nReceiving Party in order for the R eceiving Party to adequately use the Confidential Information within the terms and conditions of this Agreement and that each\ncopy is considered as Confidential Information and as an original in accordance with this Agreement; and b. not to disclose that the Evaluation Material has been\ngenerated, or that either arty and any entity identified in the Confidential Information may be considering a business relationship or have had, are having or\npropose to have any discussions with respect thereto. Notwithstanding the foregoing, the Receiving Party may disclose Confidentia Information to those\nemployees, officers, directors, agents, consultants, and advisors (collectively "Representatives") whose access is necessary to conduct the investigations and\nnegotiations contemplated herein and who have been informed of the confidentiality restrictions contained in this Agreement. However, the Receiving Party may\nonly disclose the Confidential Information to non-employee Representatives of the Company whose access is necessary if the non-employee Representatives are\nprovided with a copy of this Confidentiality Agreement and agree to be bound by the terms of this Agreement. Each arty agrees to be responsible for the actions,\nuses and disclosures of any of its Representatives. 3. OWNERSHIP AND USE OF CONFIDENTIAL NFORMATION. All Confidential Information except\nEvaluation Materials shall remain the property of the Disclosing Party. No license or other rights under any patents or other proprietary rights is granted or implied\nby the conveyance of the Confidentia Information. The Receiving Party shall not use the Confidential Information for any purpose other than to effectuate\nthe\ninvestigative and negotiation purposes of this Agreement. 4. NON-CONFIDENTIAL INFORMATION. The restrictions and confidentiality obligations set forth\nin\nthis\nAgreement shall not apply to Confidential Information which: 2 a. is or becomes part of the public domain through no fault of the R eceiving Party. b. is disclosed to\nthe Receiving Party by a third party when the eceiving arty reasonably believes the third party was not prohibited from making such disclosure; C. was in the\npossession of the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing arty; d. subject to ection 8 hereof, is required to be disclosed\nto comply with any applicable law, order, regulation or ruling 5. PUBLIC DISCLOSURE. Neither Party shall make any press release or other public utterances of\nany kind regarding this Agreement, the Transaction, the information received pursuant to this Agreement or the contents of this Agreement without prior written\nconsent of the other Party. 6. ISPOSITION OF CONFIDENTIAL NFORMATION. E ither Party (the "requesting Party") upon written request from\nthe\nother\nParty,\nshall promptly, but in any case within 14 days, return to the other Party or destroy all Confidential Information, including without limitation, drawings and other\ndocuments, and any copies or summaries thereof, but excepting Evaluation Material. If the Confidential Information is destroyed, upon request, the other Party\nshall provide the requesting Party with a certificate stating that all Confidential Material has been destroyed. The Evaluation Material, including all copies thereof,\nwil be destroyed by the other Party within said period and, if requested by the requesting Party, the other Party shal provide the requesting Party with\na\ncertificate of destruction. 7. PROTECTION OF CONFIDENTIAL NFORMATION. Each arty shall use efforts to protect the confidentiality of the Confidentia\nInformation which are at least as stringent as those which it uses to protect its own confidential information. 8. LEGALLY REQUIRED DISCLOSURE. If either\nParty becomes legally compelled to disclose any of the Confidential Information, or if such disclosure is necessary in order to obtain or maintain regulatory or\ngovernmental approvals, applications or exemptions, such Party will provide the other Party with as much advance notice as practicable to afford the opportunity\nto seek an appropriate protective order or other remedy to prevent or narrow the disclosure or to ensure that such information will continue to be treated in as\nconfidential a manner as possible. In such cases, the Party may furnish only that portion of the Confidential Information which is legally required or necessary\nand\nshall cooperate with the other Party to enable it to obtain a protective order or other reliable assurance that confidential treatment will be accorded the same. 9.\nTERM OF AGREEMENT. This Agreement will be effective as of the date hereof and will terminate two years after its effective date. 3 11. WARRANTIES. Each\nParty acknowledges that other Party (including its trustees, directors, officers, employees, and agents) makes no express of implied representation or warranty as\nto\nthe accuracy or completeness of any Confidential information and that the other arty shall have no liability arising out of or relating to the arty's or its\nRepresentatives' use of any Confidential Information. 12. REMEDIES. ach arty understands and agrees that monetary damages would not be adequate\nremedy for a breach of this Agreement. In the event of any breach or threatened breach by either Party of this Agreement, the other Party shall be entitled to\ninjunctive and other equitable relief, and that there shall be no pleading in defense thereto that there would be an adequate remedy at law. Such remedy shall be\nin addition to all other remedies available to it at law or in equity. The non-breaching P arty shall also be entitled to recover its reasonable legal fees and expenses\nand costs in enforcing this Agreement or recovering damages for any breach hereof. 13. NOTICES. Addresses for notices and requests are AEP Energy\nServices, Inc. 1 Riverside Plaza Columbus, Ohio 43215 Attention: GENERAL COUNSEL PEROT SYSTEMS CORPORATION 12404 PARK CENTRAL DR.\nDALLAS, TX 78251 Attention: GENERAL COUNSEL Notices shal be in writing and shal be given to the designated representative, either by personal delivery or\nby the U.S. Mail, facsimile, or other similar means mutually agreeable to AEPES and the Company. All notices shall be effective upon receipt. 14. APPLICABLE\nLAW. This Agreement shall be construed and enforced in accordance with the laws of the State of Ohio, without regard to the conflict of laws in effect therein.\n15.\nASSIGNMENT. This Agreement may not be assigned, delegated or transferred by either arty in any way, without the prior written consent of the other Party,\nwhich consent shall not be unreasonably withheld or delayed. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their\nrespective permitted successors and assigns. 16. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between the arties, supercedes\nany prior understandings or representations relating to the subject matter hereof, and shall not be subject to change or amendment except by subsequent written\nagreement signed by authorized representatives or the Parties. All provisions of this Agreement are severable, and the unenforceability of any of the provisions of\nthis Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement 17. FINALIZATION OF TRANSACTION. Until AEPES\nand the Company have executed the documents necessary to finalize the Transaction, neither arty shall have any liability to the other arty with respect\nto\na\nTransaction. 18 NO WAIVER. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partia exercise thereof preclude any other or further exercise of any other right, power or privilege hereunder. 19. COUNTERPARTS; FACSIMILE\nEXECUTION. This Agreement may be executed in counterparts, with each executed counterpart having the same force and effect as the original counterpart.\nThis\nAgreement shall be deemed binding upon the arties if each arty executes this Agreement, sends the executed Agreement via facsimile to the other arty,\nand receives confirmation of receipt of the executed Agreement from the other Party. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement\nas of the 22ND day of May 2001. AEP Energy Services, Inc. By: /s/ By: /s/\nTitle: SRVP - Administration Title: Vice\nPresident\nAEP Energy Services, Inc. Perot Systems Corp. 5	EX-99 .257 101 d97931exv99w257.txt PSC DOCUMENT 233 CONFIDENTIALITY AGREEMENT This CONFIDENTIALITY AGREEMENT ("Agreement") is made\nand entered into by and between AEP Energy Services, Inc. an Ohio corporation having a principal place of business at 1 Riverside Plaza, Columbus, Ohio\n43215 ("AEPES") and, Perot Systems Corporation having a principal place of business at 12404 Park Central Dr. , Dallas, TX 75251 ("Company"). Company and\nAEP may be hereinafter referred to individually as "Party" and collectively as the "Parties". WITNESSETH: WHEREAS, AEPES and Company are considering a\npossible business relationship (the "Transaction") by which the Parties would explore several business opportunities, including a potential purchase of or\nparticipating ownership interest in the WHEREAS, each of the Parties and their affiliates are in possession of trade secrets, technology, drawing specifications\nand/or other confidential information relating to its businesses and business interests and may find it desirable and necessary to exchange such information\nduring the course of these negotiations. NOW, THEREFORE , In consideration of the mutual covenants contained herein, the Parties agree as follows: 1.\nCONFIDENTIAL INFORMATION. "Confidential Information" is defined to include any information (not included in Section 4 below) that is disclosed by or about\neither party and/or their affiliate(s) (the "Disclosing Party") to the other party and/or their affiliate(s) (the "Receiving Party") in connection with the Transaction,\nsuch as: a. Written information or machine readable data, including notes, reports, assessments, specifications, drawings, financial statements and projections,\nsoftware and databases, customer information, sales and marketing strategies, and any other written information or machine readable data; b. Orally conveyed\ninformation, including but not limited to demonstrations; c. Any hardware, including but not limited to samples, devices and any other physical embodiments\ndelivered to the Receiving Party; and d. Any documents jointly or separately generated by the Parties that reflect, interpret, incorporate, evaluate, or are derived\nfrom the information described above (such documents being hereinafter referred to as "Evaluation Material"). 2 . CONFIDENTIALITY . For a period of two years\nfrom the date hereof, the Receiving Party agrees: a. to keep all Confidential Information confidential and not to copy, distribute, disclose or disseminate the\nConfidential Information in any manner to any person or entity, provided, however, that a limited number of copies of written materials may be made by the\nReceiving Party in order for the Receiving Party to adequately use the Confidential Information within the terms and conditions of this Agreement and that each\ncopy is considered as Confidential Information and as an original in accordance with this Agreement; and b. not to disclose that the Evaluation Material has been\ngenerated, or that either Party and any entity identified in the Confidential Information may be considering a business relationship or have had, are having or\npropose to have any discussions with respect thereto. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to those\nemployees, officers, directors, agents, consultants, and advisors (collectively "Representatives") whose access is necessary to conduct the investigations and\nnegotiations contemplated herein and who have been informed of the confidentiality restrictions contained in this Agreement. However, the Receiving Party may\nonly disclose the Confidential Information to non-employee Representatives of the Company whose access is necessary if the non-employee Representatives are\nprovided with a copy of this Confidentiality Agreement and agree to be bound by the terms of this Agreement. Each Party agrees to be responsible for the actions,\nuses and disclosures of any of its Representatives. 3. OWNERSHIP AND USE OF CONFIDENTIAL INFORMATION. All Confidential Information except\nEvaluation Materials shall remain the property of the Disclosing Party. No license or other rights under any patents or other proprietary rights is granted or implied\nby the conveyance of the Confidential Information. The Receiving Party shall not use the Confidential Information for any purpose other than to effectuate the\ninvestigative and negotiation purposes of this Agreement. 4 . NON-CONFIDENTIAL INFORMATION. The restrictions and confidentiality obligations set forth in this\nAgreement shall not apply to Confidential Information which: 2 a. is or becomes part of the public domain through no fault of the Receiving Party. b . is disclosed to\nthe Receiving Party by a third party when the Receiving Party reasonably believes the third party was not prohibited from making such disclosure; c. was in the\npossession of the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing Party; d. subject to Section 8 hereof, is required to be disclosed\nto comply with any applicable law, order, regulation or ruling. 5. PUBLIC DISCLOSURE . Neither Party shall make any press release or other public utterances of\nany kind regarding this Agreement, the Transaction, the information received pursuant to this Agreement or the contents of this Agreement without prior written\nconsent of the other Party. 6. DISPOSITION OF CONFIDENTIAL INFORMATION . Either Party (the "requesting Party") upon written request from the other Party,\nshall promptly, but in any case within 14 days, return to the other Party or destroy all Confidential Information, including without limitation, drawings and other\ndocuments, and any copies or summaries thereof, but excepting Evaluation Material. If the Confidential Information is destroyed, upon request, the other Party\nshall provide the requesting Party with a certificate stating that all Confidential Material has been destroyed. The Evaluation Material, including all copies thereof,\nwill be destroyed by the other Party within said period and, if requested by the requesting Party, the other Party shall provide the requesting Party with a\ncertificate of destruction. 7 . PROTECTION OF CONFIDENTIAL INFORMATION. Each Party shall use efforts to protect the confidentiality of the Confidential\nInformation which are at least as stringent as those which it uses to protect its own confidential information. 8. LEGALLY REQUIRED DISCLOSURE. If either\nParty becomes legally compelled to disclose any of the Confidential Information, or if such disclosure is necessary in order to obtain or maintain regulatory or\ngovernmental approvals, applications or exemptions, such Party will provide the other Party with as much advance notice as practicable to afford the opportunity\nto seek an appropriate protective order or other remedy to prevent or narrow the disclosure or to ensure that such information will continue to be treated in as\nconfidential a manner as possible. In such cases, the Party may furnish only that portion of the Confidential Information which is legally required or necessary and\nshall cooperate with the other Party to enable it to obtain a protective order or other reliable assurance that confidential treatment will be accorded the same. 9.\nTERM OF AGREEMENT. This Agreement will be effective as of the date hereof and will terminate two years after its effective date. 3 11. WARRANTIES . Each\nParty acknowledges that other Party (including its trustees, directors, officers, employees, and agents) makes no express of implied representation or warranty as\nto the accuracy or completeness of any Confidential information and that the other Party shall have no liability arising out of or relating to the Party's or its\nRepresentatives' use of any Confidential Information. 12. REMEDIES . Each Party understands and agrees that monetary damages would not be adequate\nremedy for a breach of this Agreement. In the event of any breach or threatened breach by either Party of this Agreement, the other Party shall be entitled to\ninjunctive and other equitable relief, and that there shall be no pleading in defense thereto that there would be an adequate remedy at law. Such remedy shall be\nin addition to all other remedies available to it at law or in equity. The non-breaching Party shall also be entitled to recover its reasonable legal fees and expenses\nand costs in enforcing this Agreement or recovering damages for any breach hereof. 13 . NOTICES . Addresses for notices and requests are: AEP Energy\nServices, Inc. 1 Riverside Plaza Columbus, Ohio 43215 Attention: GENERAL COUNSEL PEROT SYSTEMS CORPORATION 12404 PARK CENTRAL DR.\nDALLAS, TX 78251 Attention: GENERAL COUNSEL Notices shall be in writing and shall be given to the designated representative, either by personal delivery or\nby the U.S . Mail, facsimile, or other similar means mutually agreeable to AEPES and the Company. All notices shall be effective upon receipt. 14. APPLICABLE\nLAW. This Agreement shall be construed and enforced in accordance with the laws of the State of Ohio, without regard to the conflict of laws in effect therein. 15.\nASSIGNMENT. This Agreement may not be assigned, delegated or transferred by either Party in any way, without the prior written consent of the other Party,\nwhich consent shall not be unreasonably withheld or delayed. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their\nrespective permitted successors and assigns. 4 16 . ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between the Parties, supercedes\nany prior understandings or representations relating to the subject matter hereof, and shall not be subject to change or amendment except by subsequent written\nagreement signed by authorized representatives or the Parties. All provisions of this Agreement are severable, and the unenforceability of any of the provisions of\nthis Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement. 17. FINALIZATION OF TRANSACTION. Until AEPES\nand the Company have executed the documents necessary to finalize the Transaction, neither Party shall have any liability to the other Party with respect to a\nTransaction. 18. NO WAIVER. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any other right, power or privilege hereunder. 19. COUNTERPARTS; FACSIMILE\nEXECUTION. This Agreement may be executed in counterparts, with each executed counterpart having the same force and effect as the original counterpart.\nThis Agreement shall be deemed binding upon the Parties if each Party executes this Agreement, sends the executed Agreement via facsimile to the other Party,\nand receives confirmation of receipt of the executed Agreement from the other Party. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement\nas of the 22ND day of May 2001. AEP Energy Services, Inc. By: /s/ By: /s/ ----------------------------- ------------------------ Title: SRVP - Administration Title: Vice\nPresident -------------------------- --------------------- AEP Energy Services, Inc. Perot Systems Corp. 5
32c80a90ff2ddb11f7241081dcf8d6ba.pdf	effective_date jurisdiction party term	EX-10.34 5 dex1034.htm EMPLOYMENT, CONFIDENTIALITY, SEVERENCE AND NON-COMPETITION\nAGREEMENT\nExhibit 10.34\nEMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is\nentered into as of January 9, 2009 by and between Thomas T. Riley (the “Executive”) and SAVVIS, INC., a Delaware corporation, and all its\nsubsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to such\nterms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\n•\nthe Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\n•\nthe Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\n•\nthe Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its\nAffiliates with a significant competitive advantage; and\n•\nthe Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information\n(which includes trade secrets and customer lists) and customer goodwill by all of their employees;\n•\nExecutive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to\nprevent competitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent applicable\nand in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall be deemed a\nguarantee of employment with Company for any period of time.\n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive’s position as of the date of this Agreement is January 26, 2009. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her position and such other duties and responsibilities on behalf of the\nCompany and its Affiliates, reasonably related to that position, as may be designated from time to time by the Compensation Committee (the\n“Compensation Committee”) of the Board of Directors of the Company (the “Board”) or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge to the\nadvancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities hereunder. The\nExecutive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or academic position during the\nterm of this Agreement, except as may otherwise be expressly approved in advance by the Compensation Committee or other designee in writing.\n3. Compensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of three hundred twenty five thousand dollars ($325,000.00) per annum, payable in accordance with the regular payroll\npractices of the Company for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such\nbase salary, as from time to time adjusted, is hereafter referred to as the “Base Salary”.\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company’s fiscal year ending December 31, 2009, the Executive will be eligible, at the Compensation\nCommittee’s discretion, to receive a bonus payment equal to 50% of Base Salary, payable in accordance with the terms of the Company’s 2009\nAnnual Incentive Plan. For the remainder of the term hereof, the Executive shall be entitled to participate in the Company’s Annual Incentive Plan\n(the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee prior to the commencement of each fiscal year.\nNothing contained herein shall obligate the Company to continue the Annual Incentive Plan. Any compensation paid to the Executive under the\nAnnual Incentive Plan shall be in addition to the Base Salary. Except as otherwise expressly provided under the terms of the Annual Incentive Plan\nor this Agreement, the Executive shall not be entitled to earn bonus or other compensation for services rendered to the Company.\n(ii) Stock Options. Subject to approval by the Compensation Committee, the Company shall grant to the Executive an option to purchase\n250,000 shares of the common stock, $.01 par value, of the Company under the SAVVIS, Inc. Amended and Restated 2003 Incentive Compensation\nPlan (the “Plan”) at an exercise price per share equal to the public market closing price on the business day immediately prior to the date of grant\n(the “Option”). These options shall be non-qualified stock options to the extend permitted by the Plan and applicable law. The shares that are subject\nto the Option shall vest at the rate of twenty-five percent (25%) per year on each of the first four (4) anniversaries of the grant date; provided that the\nExecutive is still employed by the Company on each such vesting date. Vesting of the Option is also subject to the terms of Section 4(c)(ii) of this\nAgreement. Except as may be modified by the terms of this Agreement, the Option and all other options granted to the Executive by the Company\nshall be subject to the terms of the Plan and any applicable option certificate and shareholder and/or option holder agreements and other restrictions\nand limitations generally applicable to equity held by Company executives or otherwise required by law.\n4. Termination of Employment.\n(a) Executive’s employment with the Company may be terminated as follows:\n(i) by the Company with Cause;\n(ii) by the Company without Cause;\n(iii) upon Executive’s death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n(v) by Executive without Good Reason.\n(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as referred\nto in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination, plus\n(ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for business\nexpenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other benefits to which\nExecutive may be entitled which provide for payment or other benefits following termination (such as under disability insurance plan).\n2\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to any\namounts / benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then current annual\nBase Salary for one year, plus (y) at the discretion of the Compensation Committee, a pro-rated portion of the bonus that the Executive would be\nentitled to receive under the Company’s Annual Incentive Plan (“Bonus”). The pro-rated Bonus will be calculated by the compensation committee\nby extrapolating the Company’s anticipated full year performance based on the current year performance to date and then multiplying the resulting\nfull year extrapolation a fraction the numerator of which is the number of days during the calendar year the Executive worked in the year of\nInvoluntary Termination up to the termination date and the denominator of which is 365 (the amounts paid under (i) and (ii) constitute the\n“Severance Payment”). If the Executive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet\nreceived payment for the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual\nIncentive Plan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months of a Change in Control (a “Change in Control\nTermination”), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other equity-based\nawards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control Termination shall, provided\nsuch Equity Awards are assumed by the acquirer in such Change in Control, to the extent not then vested, fully vest and become exercisable as of the\nsuch date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve (12) months from the date\nof the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the agreement evidencing such award; and\n(y) the Executive shall be entitled to the Bonus.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with the\nCompany’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision of this\nAgreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known and\nunknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to prosecute any legal\naction or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive’s Involuntary Termination;\n(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following the\neffective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n3\n(e) Health Care Benefit. If the Executive elects to continue his or her health insurance coverage under the Consolidated Omnibus Budget\nReconciliation Act (“COBRA”) following an Involuntary Termination, then in addition to the benefits noted above, the Company shall pay the\nExecutive’s monthly premium under COBRA until the earliest of (i) the close of the twelve-month period following cessation of his or her\nemployment or (ii) the expiration of the Executive’s continuation coverage under COBRA.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be\nwithheld by law.\n(g) Section 409A Savings Clause. If any compensation or benefits provided by this Agreement may result in the application of Section 409A of\nthe Code, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude\nsuch compensation from the definition of “deferred compensation” within the meaning of such Section 409A or in order to comply with the\nprovisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such\nstatutory provisions and without any diminution in the value of the payments to the Executive.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any\nevent, within 2 /2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the\nlast day of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement\nduring any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the identification\nmethodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable by the\nCompany to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed\npursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company will not\npay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after such six-month period\ntogether with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of\nthe dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive may\ndevelop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to Confidential\nInformation during the course of employment. The Executive will comply with the policies and procedures of the Company and its Affiliates for\nprotecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or for the proper\nperformance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the Executive incident to\nhis employment or other association with the Company or any of its Affiliates. The Executive understands that this restriction shall continue to apply\nafter his employment terminates, regardless of the reason for such termination. The confidentiality obligation under this Section 5 shall not apply to\ninformation which is generally known or readily available to the public at the time of disclosure or becomes generally known through no wrongful\nact on the part of the Executive or any other Person having an obligation of confidentiality to the Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company\nor its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be the sole and\nexclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the Company at the time\nhis employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive’s\npossession or control.\n4\n1\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, the Executive shall,\nwhere permitted under applicable law, rule or regulation, provide written notice to the Company promptly after such request so that the Company\nmay, at its expense, seek a protective order or other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in\nconnection with seeking such order or other remedy). In the event that such protective order or other remedy is not obtained, the Executive shall\nfurnish only that portion of the Confidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to\nobtain assurance that confidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential\nInformation in the course of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have\nrequested or required the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to\nobtain reliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute “Confidential\nInformation” under this Agreement.\n6. Certain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially interfere\nwith his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive’s employment and for twelve (12) months following termination of his or her employment for any reason (the\n“Restricted Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or\notherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake any\nplanning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the Executive\nagrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Affiliates\nas conducted or under consideration at any time during the Executive’s employment, and further agrees not to work or provide services, in any\ncapacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person who is engaged in any\nbusiness that is competitive with the business of the Company or any of its Affiliates for which the Executive has provided services. The foregoing,\nhowever, shall not prevent the Executive’s passive ownership of two percent (2%) or less of the equity securities of any publicly traded company.\nNotwithstanding any provision in this Agreement, section 6. (b) (i) shall not be deemed to create post-employment non-competition restrictions on\nEmployee if Employee’s primary residence is in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or activity\nwhich such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the Executive has\nperformed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or otherwise had\ncontact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or has had access to\nConfidential Information which would assist in the Executive’s solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any employee\nor independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent contractor’s relationship\nwith the Company or any of its Affiliates.\n5\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the Company\nin every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive’s duties to his or her\nsuccessor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage the Company,\nthe members of the Company’s Board or the Company’s officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company. Executive\nhereby assigns to the Company all of Executive’s rights, title, and interest (including but not limited to all patent, trademark, copyright and trade\nsecret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within the scope of Executive’s\nemployment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of Confidential Information (“Work\nProduct”). Executive further acknowledges and agrees that all copyrightable Work Product prepared by Executive within the scope of Executive’s\nemployment with the Company are “works made for hire” and, consequently, that the Company owns all copyrights thereto. The Executive agrees to\nexecute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without\nlimitation the execution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Work Product to\nthe Company and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Work Product. The Executive will not\ncharge the Company for time spent in complying with these obligations. Notwithstanding the foregoing, any provision in this Agreement which\nprovides that Executive shall assign, offer to assign, any of his or her rights in an invention to the Company shall not apply to an invention that the\nExecutive developed entirely on his or her own time without using the Company’s equipment, supplies, facilities, or trade secret information except\nfor those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company’s business or actual demonstrably anticipated\nresearch or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions. The Company has expended a great deal of time, money and effort to develop and maintain its\nconfidential business information which, if misused or disclosed, could be very harmful to its business and could cause the Company to be at a\ncompetitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this Agreement but for the\nExecutive’s signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges that he or she has and will\nhave access to Confidential Information of the Company, and that the Company, in all fairness, needs certain protection in order to ensure that the\nExecutive does not misappropriate or misuse any trade secret or other Confidential Information or take any other action which could result in a loss\nof the goodwill of the Company and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage\nover the Company. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and\nenforceable in view of the Company’s legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business.\nTo the extent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so limited to\nthe greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be unaffected and such\nadjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be irreparable\nand without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a breach or\nthreatened breach of any of the Executive’s obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in addition to any\nother legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to temporary, preliminary\nand permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond), together with reasonable\nattorney’s fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there is a question as to the\nenforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct inconsistent with or contrary to such\nSection until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n6\n7. Definitions.\n(a) Definition of “Affiliate.” For all purposes under this Agreement, “Affiliate” shall mean, with respect to any Person, all Persons directly or\nindirectly controlling, controlled by or under common control with such Person, where control may be by either management authority, contract or\nequity interest. As used in this definition, “control” and correlative terms have the meanings ascribed to such words in Rule 12b-2 of the Securities\nExchange Act of 1934, as amended (the “Exchange Act”).\n(b) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean any of the following (i) the Executive’s willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the Executive’s\nunauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive’s engaging in illegal conduct that is\nlikely to be injurious to the Company; (iv) the Executive’s acts of fraud, dishonesty, or gross misconduct, or gross negligence in connection with the\nbusiness of the Company; (v) the Executive’s conviction of a felony; (vi) the Executive’s engaging in any act of moral turpitude reasonably likely to\nsubstantially and adversely affect the Company or its business; (vii) the Executive engaging in the illegal use of a controlled substance or using\nprescription medications unlawfully; (viii) the Executive’s abuse of alcohol; or (ix) the breach by the Executive of a material term of this Agreement,\nincluding, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of “Change in Control.” For all purposes under this Agreement, “Change in Control” shall mean any transaction in which a\nPerson or group (other than a group consisting of one or more of the Persons listed on Schedule A attached hereto and their respective Affiliates)\nbecomes the beneficial owner directly or indirectly (within the meaning of Rule 13d-3 under the Exchange Act) of more than 50% (on a fully-diluted\nbasis) of the total capital stock of the Company’s entitled to vote ordinarily for the election of directors.\n(d) Definition of “Confidential Information.” For all purposes under this Agreement, “Confidential Information” shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom any of\nthem plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or its Affiliates\nwould assist in competition against them. Confidential Information includes without limitation such information relating to (i) trade secrets, the\ndevelopment, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the Products, (iii) the costs,\nsources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and special needs of the customers of\nthe Company and its Affiliates and (v) client lists and the people and organizations with whom the Company and its Affiliates have business\nrelationships and the substance of those relationships. Confidential Information also includes any information that the Company or any of its\nAffiliates have received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information\nwould not be disclosed.\n(e) Definition of “Disability.” For all purposes under this Agreement, “Disability” shall mean the Executive becoming disabled during his\nemployment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is unable to\nperform substantially all of his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one\nhundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of “Good Reason.” For all purposes under this Agreement, “Good Reason” shall mean the occurrence of any of the following\nevents, without the Executive’s consent: (i) change in the Executive’s position as officer of the Company that materially reduces his or her authority\nor level of responsibility, (ii) a material reduction in his or her level of compensation (including base salary and target bonus) other than pursuant to a\nCompany-wide reduction of compensation, or (iii) a relocation of his or her employment more than 50 miles from the Executive’s office or location\nat the time of resignation.\n7\nTo constitute Good Reason, termination must occur within two (2) years following the initial occurrence of such event; Executive must\nprovide written notice within 90 days of the occurrence to the Company; and if correctable, Company must fail to correct within 30 days of notice of\ntermination.\n(g) Definition of “Intellectual Property.” For all purposes under this Agreement, “Intellectual Property” shall mean inventions, discoveries,\ndevelopments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets)\nconceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business\nhours or on or off Company premises) during the Executive’s employment and during the period of six (6) months immediately following\ntermination of his employment that relate to either the Products or any prospective activity of the Company or any of its Affiliates or that make use\nof Confidential Information or any of the equipment or facilities of the Company or any of its Affiliates.\n(h) Definition of “Involuntary Termination.” For all purposes under this Agreement, “Involuntary Termination” shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of “Person.” For all purposes under this Agreement, “Person” shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of “Products.” For all purposes under this Agreement, “Products” shall mean all products planned, researched, developed, tested,\nmanufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all services\nprovided or planned by the Company or any of its Affiliates, during the Executive’s employment.\n8. Miscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document, then\nthe provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the Company with\nrespect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company (other than the\nExecutive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly\ngiven when personally delivered or when mailed by U.S . registered or certified mail, return receipt requested and postage prepaid or deposited with\nan overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or her at the home address\nwhich he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its\ncorporate headquarters, and all notices shall be directed to the attention of its Senior Vice President of Human Resources.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to\nin writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either party of any\nbreach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition\nor provision or of the same condition or provision at another time.\n(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of specific\nduration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the Executive, which\nrights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without Cause and with or\nwithout notice.\n8\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that any\ndisputes arising under this Agreement are resolved in accordance with the parties’ expectations, this Agreement shall be governed by and construed\nunder the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of Missouri shall be\napplied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and enforcement of this\nAgreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should Missouri law be found not to\napply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall not be payable, the provisions of\nSection 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought in the state courts of Missouri located\nin St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby consents to personal jurisdiction in any such\naction brought in any such Missouri court, consents to service of process by the methods for notice under Section 8(b) hereof made upon such party,\nand such party’s agent and waives any objection to venue in any such Missouri court or to any claim that any such Missouri court is an inconvenient\nforum.\n(g) Attorney’s Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party with\nrespect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its attorney’s fees in a\nreasonable amount incurred in connection with such claim.\n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties’\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to herein,\nconstitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior discussions,\nnegotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter contained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as\nof the day and year first above written.\nSAVVIS, INC.\nEXECUTIVE\nBy: /s/ Mary Ann Altergott\nBy: /s/ Thomas T. Riley\nName: Mary Ann Altergott\nName: Thomas T. Riley\nTitle: Senior Vice President, Corporate Services\n9\nSchedule A\nWelsh, Carson, Anderson & Stowe VIII L.P.\nWCAS Management Corporation\nAffiliates of the foregoing\n10	EX-10.34 5 dex1034.htm EMPLOYMENT, CONFIDENTIALITY, SEVERENCE AND NON-COMPETITION\nAGREEMENT\nExhibit 10.34\nEMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is\nentered into as of January 9, 2009 by and between Thomas T. Riley (the “Executive”) and SAVVIS, INC., a Delaware corporation, and all its\nsubsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to such\nterms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\n. the Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\n. the Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\n. the Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its\nAffiliates with a significant competitive advantage; and\n. the Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information\n(which includes trade secrets and customer lists) and customer goodwill by all of their employees;\n. Executive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to\nprevent competitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent applicable\nand in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall be deemed a\nguarantee of employment with Company for any period of time.\n \n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive’s position as of the date of this Agreement is January 26, 2009. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her position and such other duties and responsibilities on behalf of the\nCompany and its Affiliates, reasonably related to that position, as may be designated from time to time by the Compensation Committee (the\n“Compensation Committee”) of the Board of Directors of the Company (the “Board”) or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge to the\nadvancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities hereunder. The\nExecutive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or academic position during the\nterm of this Agreement, except as may otherwise be expressly approved in advance by the Compensation Committee or other designee in writing.\n3. Compensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of three hundred twenty five thousand dollars ($325,000.00) per annum, payable in accordance with the regular payroll\npractices of the Company for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such\nbase salary, as from time to time adjusted, is hereafter referred to as the “Base Salary”.\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company’s fiscal year ending December 31, 2009, the Executive will be eligible, at the Compensation\nCommittee’s discretion, to receive a bonus payment equal to 50% of Base Salary, payable in accordance with the terms of the Company’s 2009\nAnnual Incentive Plan. For the remainder of the term hereof, the Executive shall be entitled to participate in the Company’s Annual Incentive Plan\n(the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee prior to the commencement of each fiscal year.\nNothing contained herein shall obligate the Company to continue the Annual Incentive Plan. Any compensation paid to the Executive under the\nAnnual Incentive Plan shall be in addition to the Base Salary. Except as otherwise expressly provided under the terms of the Annual Incentive Plan\nor this Agreement, the Executive shall not be entitled to earn bonus or other compensation for services rendered to the Company.\n(ii) Stock Options. Subject to approval by the Compensation Committee, the Company shall grant to the Executive an option to purchase\n250,000 shares of the common stock, $.01 par value, of the Company under the SAVVIS, Inc. Amended and Restated 2003 Incentive Compensation\nPlan (the “Plan”) at an exercise price per share equal to the public market closing price on the business day immediately prior to the date of grant\n(the “Option”). These options shall be non-qualified stock options to the extend permitted by the Plan and applicable law. The shares that are subject\nto the Option shall vest at the rate of twenty-five percent (25%) per year on each of the first four (4) anniversaries of the grant date; provided that the\nExecutive is still employed by the Company on each such vesting date. Vesting of the Option is also subject to the terms of Section 4(c)(ii) of this\nAgreement. Except as may be modified by the terms of this Agreement, the Option and all other options granted to the Executive by the Company\nshall be subject to the terms of the Plan and any applicable option certificate and shareholder and/or option holder agreements and other restrictions\nand limitations generally applicable to equity held by Company executives or otherwise required by law.\n4. Termination of Employment.\n(a) Executive’s employment with the Company may be terminated as follows:\n@ by the Company with Cause;\n(ii) by the Company without Cause;\n(iii)  upon Executive’s death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n) by Executive without Good Reason.\n(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as referred\nto in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination, plus\n(ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for business\nexpenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other benefits to which\nExecutive may be entitled which provide for payment or other benefits following termination (such as under disability insurance plan).\n2\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to any\namounts / benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then current annual\nBase Salary for one year, plus (y) at the discretion of the Compensation Committee, a pro-rated portion of the bonus that the Executive would be\nentitled to receive under the Company’s Annual Incentive Plan (“Bonus™). The pro-rated Bonus will be calculated by the compensation committee\nby extrapolating the Company’s anticipated full year performance based on the current year performance to date and then multiplying the resulting\nfull year extrapolation a fraction the numerator of which is the number of days during the calendar year the Executive worked in the year of\nInvoluntary Termination up to the termination date and the denominator of which is 365 (the amounts paid under (i) and (ii) constitute the\n“Severance Payment”). If the Executive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet\nreceived payment for the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual\nIncentive Plan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months of a Change in Control (a “Change in Control\nTermination”), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other equity-based\nawards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control Termination shall, provided\nsuch Equity Awards are assumed by the acquirer in such Change in Control, to the extent not then vested, fully vest and become exercisable as of the\nsuch date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve (12) months from the date\nof the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the agreement evidencing such award; and\n(y) the Executive shall be entitled to the Bonus.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with the\nCompany’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision of this\nAgreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known and\nunknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to prosecute any legal\naction or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive’s Involuntary Termination;\n(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following the\neffective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n3\n(e) Health Care Benefit. If the Executive elects to continue his or her health insurance coverage under the Consolidated Omnibus Budget\nReconciliation Act (“COBRA”) following an Involuntary Termination, then in addition to the benefits noted above, the Company shall pay the\nExecutive’s monthly premium under COBRA until the earliest of (i) the close of the twelve-month period following cessation of his or her\nemployment or (ii) the expiration of the Executive’s continuation coverage under COBRA.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be\nwithheld by law.\n \n(g) Section 409A Savings Clause. If any compensation or benefits provided by this Agreement may result in the application of Section 409A of\nthe Code, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude\nsuch compensation from the definition of “deferred compensation” within the meaning of such Section 409A or in order to comply with the\nprovisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such\nstatutory provisions and without any diminution in the value of the payments to the Executive.\n \nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any\nevent, within 2 1/2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the\nlast day of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement\nduring any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the identification\nmethodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable by the\nCompany to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed\npursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company will not\npay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after such six-month period\ntogether with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of\nthe dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive may\ndevelop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to Confidential\nInformation during the course of employment. The Executive will comply with the policies and procedures of the Company and its Affiliates for\nprotecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or for the proper\nperformance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the Executive incident to\nhis employment or other association with the Company or any of its Affiliates. The Executive understands that this restriction shall continue to apply\nafter his employment terminates, regardless of the reason for such termination. The confidentiality obligation under this Section 5 shall not apply to\ninformation which is generally known or readily available to the public at the time of disclosure or becomes generally known through no wrongful\nact on the part of the Executive or any other Person having an obligation of confidentiality to the Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company\nor its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be the sole and\nexclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the Company at the time\nhis employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive’s\npossession or control.\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, the Executive shall,\nwhere permitted under applicable law, rule or regulation, provide written notice to the Company promptly after such request so that the Company\nmay, at its expense, seek a protective order or other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in\nconnection with seeking such order or other remedy). In the event that such protective order or other remedy is not obtained, the Executive shall\nfurnish only that portion of the Confidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to\nobtain assurance that confidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential\nInformation in the course of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have\nrequested or required the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to\nobtain reliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute “Confidential\nInformation” under this Agreement.\n6. Certain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially interfere\nwith his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive’s employment and for twelve (12) months following termination of his or her employment for any reason (the\n“Restricted Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or\notherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake any\nplanning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the Executive\nagrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Affiliates\nas conducted or under consideration at any time during the Executive’s employment, and further agrees not to work or provide services, in any\ncapacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person who is engaged in any\nbusiness that is competitive with the business of the Company or any of its Affiliates for which the Executive has provided services. The foregoing,\nhowever, shall not prevent the Executive’s passive ownership of two percent (2%) or less of the equity securities of any publicly traded company.\nNotwithstanding any provision in this Agreement, section 6. (b) (i) shall not be deemed to create post-employment non-competition restrictions on\nEmployee if Employee’s primary residence is in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or activity\nwhich such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the Executive has\nperformed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or otherwise had\ncontact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or has had access to\nConfidential Information which would assist in the Executive’s solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any employee\nor independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent contractor’s relationship\nwith the Company or any of its Affiliates.\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the Company\nin every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive’s duties to his or her\nsuccessor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage the Company,\nthe members of the Company’s Board or the Company’s officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company. Executive\nhereby assigns to the Company all of Executive’s rights, title, and interest (including but not limited to all patent, trademark, copyright and trade\nsecret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within the scope of Executive’s\nemployment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of Confidential Information (“Work\nProduct”). Executive further acknowledges and agrees that all copyrightable Work Product prepared by Executive within the scope of Executive’s\nemployment with the Company are “works made for hire” and, consequently, that the Company owns all copyrights thereto. The Executive agrees to\nexecute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without\nlimitation the execution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Work Product to\nthe Company and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Work Product. The Executive will not\ncharge the Company for time spent in complying with these obligations. Notwithstanding the foregoing, any provision in this Agreement which\nprovides that Executive shall assign, offer to assign, any of his or her rights in an invention to the Company shall not apply to an invention that the\nExecutive developed entirely on his or her own time without using the Company’s equipment, supplies, facilities, or trade secret information except\nfor those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company’s business or actual demonstrably anticipated\nresearch or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions. The Company has expended a great deal of time, money and effort to develop and maintain its\nconfidential business information which, if misused or disclosed, could be very harmful to its business and could cause the Company to be at a\ncompetitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this Agreement but for the\nExecutive’s signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges that he or she has and will\nhave access to Confidential Information of the Company, and that the Company, in all fairness, needs certain protection in order to ensure that the\nExecutive does not misappropriate or misuse any trade secret or other Confidential Information or take any other action which could result in a loss\nof the goodwill of the Company and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage\nover the Company. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and\nenforceable in view of the Company’s legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business.\nTo the extent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so limited to\nthe greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be unaffected and such\nadjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be irreparable\nand without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a breach or\nthreatened breach of any of the Executive’s obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in addition to any\nother legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to temporary, preliminary\nand permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond), together with reasonable\nattorney’s fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there is a question as to the\nenforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct inconsistent with or contrary to such\nSection until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n6\n7. Definitions.\n(a) Definition of “Affiliate.” For all purposes under this Agreement, “Affiliate” shall mean, with respect to any Person, all Persons directly or\nindirectly controlling, controlled by or under common control with such Person, where control may be by either management authority, contract or\nequity interest. As used in this definition, “control” and correlative terms have the meanings ascribed to such words in Rule 12b-2 of the Securities\nExchange Act of 1934, as amended (the “Exchange Act”).\n(b) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean any of the following (i) the Executive’s willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the Executive’s\nunauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive’s engaging in illegal conduct that is\nlikely to be injurious to the Company; (iv) the Executive’s acts of fraud, dishonesty, or gross misconduct, or gross negligence in connection with the\nbusiness of the Company; (v) the Executive’s conviction of a felony; (vi) the Executive’s engaging in any act of moral turpitude reasonably likely to\nsubstantially and adversely affect the Company or its business; (vii) the Executive engaging in the illegal use of a controlled substance or using\nprescription medications unlawfully; (viii) the Executive’s abuse of alcohol; or (ix) the breach by the Executive of a material term of this Agreement,\nincluding, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of “Change in Control.” For all purposes under this Agreement, “Change in Control” shall mean any transaction in which a\nPerson or group (other than a group consisting of one or more of the Persons listed on Schedule A attached hereto and their respective Affiliates)\nbecomes the beneficial owner directly or indirectly (within the meaning of Rule 13d-3 under the Exchange Act) of more than 50% (on a fully-diluted\nbasis) of the total capital stock of the Company’s entitled to vote ordinarily for the election of directors.\n(d) Definition of “Confidential Information.” For all purposes under this Agreement, “Confidential Information” shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom any of\nthem plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or its Affiliates\nwould assist in competition against them. Confidential Information includes without limitation such information relating to (i) trade secrets, the\ndevelopment, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the Products, (iii) the costs,\nsources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and special needs of the customers of\nthe Company and its Affiliates and (v) client lists and the people and organizations with whom the Company and its Affiliates have business\nrelationships and the substance of those relationships. Confidential Information also includes any information that the Company or any of its\nAffiliates have received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information\nwould not be disclosed.\n(e) Definition of “Disability.” For all purposes under this Agreement, “Disability” shall mean the Executive becoming disabled during his\nemployment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is unable to\nperform substantially all of his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one\nhundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of “Good Reason.” For all purposes under this Agreement, “Good Reason” shall mean the occurrence of any of the following\nevents, without the Executive’s consent: (i) change in the Executive’s position as officer of the Company that materially reduces his or her authority\nor level of responsibility, (i) a material reduction in his or her level of compensation (including base salary and target bonus) other than pursuant to a\nCompany-wide reduction of compensation, or (iii) a relocation of his or her employment more than 50 miles from the Executive’s office or location\nat the time of resignation.\nTo constitute Good Reason, termination must occur within two (2) years following the initial occurrence of such event; Executive must\nprovide written notice within 90 days of the occurrence to the Company; and if correctable, Company must fail to correct within 30 days of notice of\ntermination.\n(g) Definition of “Intellectual Property.” For all purposes under this Agreement, “Intellectual Property” shall mean inventions, discoveries,\ndevelopments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets)\nconceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business\nhours or on or off Company premises) during the Executive’s employment and during the period of six (6) months immediately following\ntermination of his employment that relate to either the Products or any prospective activity of the Company or any of its Affiliates or that make use\nof Confidential Information or any of the equipment or facilities of the Company or any of its Affiliates.\n(h) Definition of “Involuntary Termination.” For all purposes under this Agreement, “Involuntary Termination” shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of “Person.” For all purposes under this Agreement, “Person” shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of “Products.” For all purposes under this Agreement, “Products” shall mean all products planned, researched, developed, tested,\nmanufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all services\nprovided or planned by the Company or any of its Affiliates, during the Executive’s employment.\n8. Miscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document, then\nthe provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the Company with\nrespect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company (other than the\nExecutive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly\ngiven when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or deposited with\nan overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or her at the home address\nwhich he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its\ncorporate headquarters, and all notices shall be directed to the attention of its Senior Vice President of Human Resources.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to\nin writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either party of any\nbreach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition\nor provision or of the same condition or provision at another time.\n \n(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of specific\nduration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the Executive, which\nrights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without Cause and with or\nwithout notice.\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that any\ndisputes arising under this Agreement are resolved in accordance with the parties’ expectations, this Agreement shall be governed by and construed\nunder the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of Missouri shall be\napplied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and enforcement of this\nAgreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should Missouri law be found not to\napply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall not be payable, the provisions of\nSection 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought in the state courts of Missouri located\nin St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby consents to personal jurisdiction in any such\naction brought in any such Missouri court, consents to service of process by the methods for notice under Section 8(b) hereof made upon such party,\nand such party’s agent and waives any objection to venue in any such Missouri court or to any claim that any such Missouri court is an inconvenient\nforum.\n(g) Attorney’s Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party with\nrespect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its attorney’s fees in a\nreasonable amount incurred in connection with such claim.\n \n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties’\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to herein,\nconstitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior discussions,\nnegotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter contained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as\nof the day and year first above written.\nSAVVIS, INC. EXECUTIVE\nBy:  /s/ Mary Ann Altergott By: /s/ Thomas T. Riley\nName: Mary Ann Altergott Name: Thomas T. Riley\nTitle: Senior Vice President, Corporate Services\nSchedule A\nWelsh, Carson, Anderson & Stowe VIII L.P.\nWCAS Management Corporation\nAffiliates of the foregoing\n10	EX-10.34 5 x1034.htm EMPLOYMENT, CONFIDENTIALITY, SEVERENCE AND NON-COMPETITION\nAGREEMENT\nExhibit 10.34\nEMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this "Agreement") is\nentered into as of January 9, 2009 by and between Thomas T. Riley (the "Executive") and SAVVIS, INC., a Delaware corporation, and all its\nsubsidiaries (collectively referred to as the "Company"). Capitalized terms used but not defined herein have the respective meanings ascribed to such\nterms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\nthe Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\nthe Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\nthe Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its\nAffiliates with a significant competitive advantage; and\nthe Company's and its Affiliates' success depends to a substantial extent upon the protection of its Confidential Information\n(which includes trade secrets and customer lists) and customer goodwill by all of their employees;\nExecutive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to\nprevent competitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive's employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent applicable\nand in accordance with their terms: Sections 4, 5, 6 and 8. Executive's employment is "at-will", and nothing contained herein shall be deemed a\nguarantee of employment with Company for any period of time.\n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive's position as of the date of this Agreement is January 26, 2009. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her position and such other duties and responsibilities on behalf of the\nCompany and its Affiliates, reasonably related to that position, as may be designated from time to time by the Compensation Committee (the\n"Compensation Committee") of the Board of Directors of the Company (the "Board") or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge to the\nadvancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities hereunder. The\nExecutive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or academic position during the\nterm of this Agreement, except as may otherwise be expressly approved in advance by the Compensation Committee or other designee in writing.\n3. Compensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive's duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary.. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement\nis\nset\nat\nthe\nrate\nof\nthree\nhundred\ntwenty\nfive\nthousand\ndollars\n($325,000.00)\nper\nannum,\npayable\nin\naccordance\nwith\nthe\nregular\npayroll\npractices of the Company for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such\nbase salary, as from time to time adjusted, is hereafter referred to as the "Base Salary".\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company's fiscal year ending December 31, 2009, the Executive will be eligible, at the Compensation\nCommittee's discretion, to receive a bonus payment equal to 50% of Base Salary, payable in accordance with the terms of the Company's 2009\nAnnual Incentive Plan. For the remainder of the term hereof, the Executive shall be entitled to participate in the Company's Annual Incentive Plan\n(the "Annual Incentive Plan") on terms to be determined annually by the Compensation Committee prior to the commencement of each fiscal year.\nNothing contained herein shall obligate the Company to continue the Annual Incentive Plan. Any compensation paid to the Executive under the\nAnnual Incentive Plan shall be in addition to the Base Salary. Except as otherwise expressly provided under the terms of the Annual Incentive Plan\nor this Agreement, the Executive shall not be entitled to earn bonus or other compensation for services rendered to the Company.\n(ii) Stock Options. Subject to approval by the Compensation Committee, the Company shall grant to the Executive an option to purchase\n250,000 shares of the common stock, $.01 par value, of the Company under the SAVVIS, Inc. Amended and Restated 2003 Incentive Compensation\nPlan (the "Plan") at an exercise price per share equal to the public market closing price on the business day immediately prior to the date of grant\n(the "Option"). These options shall be non-qualified stock options to the extend permitted by the Plan and applicable law. The shares that are subject\nto\nthe\nOption shall vest at the rate of twenty-five percent (25%) per year on each of the first four (4) anniversaries of the grant date; provided that the\nExecutive is still employed by the Company on each such vesting date. Vesting of the Option is also subject to the terms of Section 4(c)(ii) of this\nAgreement. Except as may be modified by the terms of this Agreement, the Option and all other options granted to the Executive by the Company\nshall be subject to the terms of the Plan and any applicable option certificate and shareholder and/or option holder agreements and other restrictions\nand limitations generally applicable to equity held by Company executives or otherwise required by law.\n4. Termination of Employment.\n(a) Executive's employment with the Company may be terminated as follows:\n(i)\nby the Company with Cause;\n(ii)\nby the Company without Cause;\n(iii)\nupon Executive's death or Disability (defined herein);\n(iv)\nby Executive with Good Reason; or\n(v)\nby Executive without Good Reason.\n(b) Upon termination of Executive's employment for any reason, all rights and obligations under this Agreement shall cease, except as referred\nto in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination, plus\n(ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for business\nexpenses incurred prior to termination in accordance with the Company's expense and reimbursement policy, plus (iii) any other benefits to which\nExecutive may be entitled which provide for payment or other benefits following termination (such as under disability insurance plan).\n2\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to any\namounts benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then current annual\nBase Salary for one year, plus (y) at the discretion of the Compensation Committee, a pro-rated portion of the bonus that the Executive would be\nentitled\nto\nreceive under the Company's Annual Incentive Plan ("Bonus"). The pro-rated Bonus will be calculated by the compensation committee\nby extrapolating the Company's anticipated full year performance based on the current year performance to date and then multiplying the resulting\nfull year extrapolation a fraction the numerator of which is the number of days during the calendar year the Executive worked in the year of\nInvoluntary Termination up to the termination date and the denominator of which is 365 (the amounts paid under (i) and (ii) constitute the\n"Severance Payment"). If the Executive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet\nreceived payment for the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual\nIncentive Plan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months of a Change in Control (a "Change in Control\nTermination"), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other equity-based\nawards (each an "Equity Award") that were outstanding immediately prior to the effective date of the Change in Control Termination shall, provided\nsuch Equity Awards are assumed by the acquirer in such Change in Control, to the extent not then vested, fully vest and become exercisable as of\nthe\nsuch date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve (12) months from the date\nof the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the agreement evidencing such award; and\n(y) the Executive shall be entitled to the Bonus.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with the\nCompany's standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision of this\nAgreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known and\nunknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to prosecute any legal\naction or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive's Involuntary Termination;\n(iv) the date of the Company's receipt of the Executive's executed General Release, which must be no later than 21 days following\nthe\neffective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive's executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended ("Code"), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive's effective date of termination\nif\nmade by the 15th day of the third calendar month following such payroll date.\n3\n(e) Health Care Benefit. If the Executive elects to continue his or her health insurance coverage under the Consolidated Omnibus Budget\nReconciliation Act ("COBRA") following an Involuntary Termination, then in addition to the benefits noted above, the Company shall pay the\nExecutive's monthly premium under COBRA until the earliest of (i) the close of the twelve-month period following cessation of his or her\nemployment or (ii) the expiration of the Executive's continuation coverage under COBRA.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be\nwithheld by law.\n(g) Section 409A Savings Clause. If any compensation or benefits provided by this Agreement may result in the application of Section 409A of\nthe Code, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude\nsuch compensation from the definition of "deferred compensation" within the meaning of such Section 409A or in order to comply with the\nprovisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such\nstatutory provisions and without any diminution in the value of the payments to the Executive.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any\nevent, within 21/2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the\nlast day of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement\nduring any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the identification\nmethodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable by the\nCompany\nto\nthe Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed\npursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company will not\npay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after such six-month period\ntogether with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of\nthe dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive may\ndevelop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to Confidential\nInformation during the course of employment. The Executive will comply with the policies and procedures of the Company and its Affiliates for\nprotecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or for the proper\nperformance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the Executive incident\nto\nhis employment or other association with the Company or any of its Affiliates. The Executive understands that this restriction shall continue to apply\nafter his employment terminates, regardless of the reason for such termination. The confidentiality obligation under this Section 5 shall not apply to\ninformation which is generally known or readily available to the public at the time of disclosure or becomes generally known through no wrongful\nact on the part of the Executive or any other Person having an obligation of confidentiality to the Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company\nor its Affiliates and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and\nexclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the Company at the time\nhis employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's\npossession or control.\n4\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, the Executive shall,\nwhere permitted under applicable law, rule or regulation, provide written notice to the Company promptly after such request so that the Company\nmay, at its expense, seek a protective order or other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in\nconnection with seeking such order or other remedy). In the event that such protective order or other remedy is not obtained, the Executive shall\nfurnish only that portion of the Confidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts\nto\nobtain assurance that confidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential\nInformation in the course of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have\nrequested or required the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to\nobtain reliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute "Confidential\nInformation" under this Agreement.\n6. Certain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially interfere\nwith his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive's employment and for twelve (12) months following termination of his or her employment for any reason (the\n"Restricted Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or\notherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake any\nplanning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the Executive\nagrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Affiliates\nas conducted or under consideration at any time during the Executive's employment, and further agrees not to work or provide services, in any\ncapacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person who is engaged in any\nbusiness that is competitive with the business of the Company or any of its Affiliates for which the Executive has provided services. The foregoing,\nhowever, shall not prevent the Executive's passive ownership of two percent (2%) or less of the equity securities of any publicly traded company.\nNotwithstanding any provision in this Agreement, section 6. (b) (i) shall not be deemed to create post-employment non-competition restrictions\non\nEmployee if Employee's primary residence is in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or activity\nwhich such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the Executive has\nperformed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or otherwise had\ncontact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or has had access to\nConfidential Information which would assist in the Executive's solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any employee\nor independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent contractor's relationship\nwith the Company or any of its Affiliates.\n5\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the Company\nin every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive's duties to his or her\nsuccessor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage the Company,\nthe members of the Company's Board or the Company's officers and employees.\n(d)\nAssignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to\nthe\nCompany.\nExecutive\nhereby assigns to the Company all of Executive's rights, title, and interest (including but not limited to all patent, trademark, copyright and trade\nsecret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within the scope of Executive's\nemployment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of Confidential Information ("Work\nProduct"). Executive further acknowledges and agrees that all copyrightable Work Product prepared by Executive within the scope of Executive's\nemployment with the Company are "works made for hire" and, consequently, that the Company owns all copyrights thereto. The Executive agrees\nto\nexecute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without\nlimitation the execution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Work Product to\nthe Company and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Work Product. The Executive will not\ncharge the Company for time spent in complying with these obligations. Notwithstanding the foregoing, any provision in this Agreement which\nprovides that Executive shall assign, offer to assign, any of his or her rights in an invention to the Company shall not apply to an invention that the\nExecutive developed entirely on his or her own time without using the Company's equipment, supplies, facilities, or trade secret information except\nfor those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company's business or actual demonstrably anticipated\nresearch or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement RegardingRe Restrictions The Company has expended a great deal of time, money and effort to develop and maintain its\nconfidential business information which, if misused or disclosed, could be very harmful to its business and could cause the Company to be at a\ncompetitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this Agreement but for the\nExecutive's signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges that he or she has and will\nhave access to Confidential Information of the Company, and that the Company, in all fairness, needs certain protection in order to ensure that the\nExecutive does not misappropriate or misuse any trade secret or other Confidential Information or take any other action which could result in a loss\nof the goodwill of the Company and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage\nover the Company. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and\nenforceable in view of the Company's legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business.\nTo the extent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so limited to\nthe greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be unaffected and such\nadjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be irreparable\nand without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a breach or\nthreatened breach of any of the Executive's obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in addition to any\nother legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to temporary, preliminary\nand permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond), together with reasonable\nattorney's fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there is a question as to the\nenforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct inconsistent with or contrary to such\nSection until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n6\n7. Definitions.\n(a) Definition of "Affiliate." For all purposes under this Agreement, "Affiliate" shall mean, with respect to any Person, all Persons directly or\nindirectly controlling, controlled by or under common control with such Person, where control may be by either management authority, contract or\nequity interest. As used in this definition, "control" and correlative terms have the meanings ascribed to such words in Rule 12b-2 of the Securities\nExchange Act of 1934, as amended (the "Exchange Act").\n(b) Definition of "Cause." For all purposes under this Agreement, "Cause" shall mean any of the following (i) the Executive's willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the Executive's\nunauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive's engaging in illegal conduct that\nis\nlikely to be injurious to the Company; (iv) the Executive's acts of fraud, dishonesty, or gross misconduct, or gross negligence in connection with the\nbusiness of the Company; (v) the Executive's conviction of a felony; (vi) the Executive's engaging in any act of moral turpitude reasonably likely\nto\nsubstantially and adversely affect the Company or its business; (vii) the Executive engaging in the illegal use of a controlled substance or using\nprescription medications unlawfully; (vili) the Executive's abuse of alcohol; or (ix) the breach by the Executive of a material term of this Agreement,\nincluding, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of "Change in Control." For all purposes under this Agreement, "Change in Control" shall mean any transaction in which a\nPerson or group (other than a group consisting of one or more of the Persons listed on Schedule A attached hereto and their respective Affiliates)\nbecomes the beneficial owner directly or indirectly (within the meaning of Rule 13d-3 under the Exchange Act) of more than 50% (on a fully-diluted\nbasis) of the total capital stock of the Company's entitled to vote ordinarily for the election of directors.\n(d) Definition of "Confidential Information." For all purposes under this Agreement, "Confidential Information" shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom any of\nthem plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or its Affiliates\nwould assist in competition against them. Confidential Information includes without limitation such information relating to (i) trade secrets, the\ndevelopment, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the Products, (iii) the costs,\nsources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and special needs of the customers of\nthe Company and its Affiliates and (v) client lists and the people and organizations with whom the Company and its Affiliates have business\nrelationships and the substance of those relationships. Confidential Information also includes any information that the Company or any of its\nAffiliates have received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information\nwould not be disclosed.\n(e) Definition of "Disability.." For all purposes under this Agreement, "Disability" shall mean the Executive becoming disabled during his\nemployment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is unable to\nperform substantially all of his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one\nhundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of "Good Reason." For all purposes under this Agreement, "Good Reason" shall mean the occurrence of any of the following\nevents, without the Executive's consent: (i) change in the Executive's position as officer of the Company that materially reduces his or her authority\nor level of responsibility, (ii) a material reduction in his or her level of compensation (including base salary and target bonus) other than pursuant\nto\na\nCompany-wide reduction of compensation, or (iii) a relocation of his or her employment more than 50 miles from the Executive's office or location\nat the time of resignation.\n7\nTo constitute Good Reason, termination must occur within two (2) years following the initial occurrence of such event; Executive must\nprovide written notice within 90 days of the occurrence to the Company; and if correctable, Company must fail to correct within 30 days of notice of\ntermination.\n(g) Definition of "Intellectual Property." For all purposes under this Agreement, "Intellectual Property" shall mean inventions, discoveries,\ndevelopments,\nmethods,\nprocesses,\ncompositions,\nworks,\nconcepts\nand\nideas\n(whether\nor\nnot\npatentable\nor\ncopyrightable\nor\nconstituting\ntrade\nsecrets)\nconceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business\nhours or on or off Company premises) during the Executive's employment and during the period of six (6) months immediately following\ntermination of his employment that relate to either the Products or any prospective activity of the Company or any of its Affiliates or that make use\nof Confidential Information or any of the equipment or facilities of the Company or any of its Affiliates.\n(h) Definition of "Involuntary. Termination." For all purposes under this Agreement, "Involuntary Termination" shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of "Person." For all purposes under this Agreement, "Person" shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j)\nDefinition of "Products." For all purposes under this Agreement, "Products" shall mean all products planned, researched, developed, tested,\nmanufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all services\nprovided or planned by the Company or any of its Affiliates, during the Executive's employment.\n8. Miscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document, then\nthe\nprovisions\nof\nthis\nAgreement\nwill\ncontrol.\nThis\nAgreement\nwill\nsupersede\nany\nprior\nagreement\nbetween\nthe\nExecutive\nand\nthe\nCompany\nwith\nrespect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company (other than the\nExecutive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly\ngiven when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or deposited with\nan\novernight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or her at the home address\nwhich he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to\nits\ncorporate headquarters, and all notices shall be directed to the attention of its Senior Vice President of Human Resources.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to\nin writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either party of any\nbreach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition\nor provision or of the same condition or provision at another time.\n(d) Severability.. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of specific\nduration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the Executive, which\nrights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without Cause and with or\nwithout notice.\n8\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that any\ndisputes arising under this Agreement are resolved in accordance with the parties' expectations, this Agreement shall be governed by and construed\nunder the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of Missouri shall be\napplied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and enforcement of this\nAgreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should Missouri law be found not to\napply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall not be payable, the provisions of\nSection 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought in the state courts of Missouri located\nin St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby consents to personal jurisdiction in any such\naction brought in any such Missouri court, consents to service of process by the methods for notice under Section 8(b) hereof made upon such party,\nand such party's agent and waives any objection to venue in any such Missouri court or to any claim that any such Missouri court is an inconvenient\nforum.\n(g)\nAttorney's Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party with\nrespect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its attorney's fees in a\nreasonable amount incurred in connection with such claim.\n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties'\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i)\nEntire Agreement This Agreement, together with the other agreements and any documents, instruments and certificates referred to herein,\nconstitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior discussions,\nnegotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter contained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as\nof the day and year first above written.\nSAVVIS, INC.\nEXECUTIVE\nBy:\n/s/ Mary Ann Altergott\nBy:\n/s/ Thomas T. Riley\nName: Mary Ann Altergott\nName: Thomas T. Riley\nTitle: Senior Vice President, Corporate Services\n9\nSchedule A\nWelsh, Carson, Anderson & Stowe VIII L.P.\nWCAS Management Corporation\nAffiliates of the foregoing\n10	EX-10.34 5 dex1034.htm EMPLOYMENT, CONFIDENTIALITY, SEVERENCE AND NON-COMPETITION\nAGREEMENT\nExhibit 10.34\nEMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is\nentered into as of January 9, 2009 by and between Thomas T. Riley (the “Executive”) and SAVVIS, INC., a Delaware corporation, and all its\nsubsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to such\nterms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\n•\nthe Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\n•\nthe Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\n•\nthe Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its\nAffiliates with a significant competitive advantage; and\n•\nthe Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information\n(which includes trade secrets and customer lists) and customer goodwill by all of their employees;\n•\nExecutive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to\nprevent competitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent applicable\nand in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall be deemed a\nguarantee of employment with Company for any period of time.\n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive’s position as of the date of this Agreement is January 26, 2009. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her position and such other duties and responsibilities on behalf of the\nCompany and its Affiliates, reasonably related to that position, as may be designated from time to time by the Compensation Committee (the\n“Compensation Committee”) of the Board of Directors of the Company (the “Board”) or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge to the\nadvancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities hereunder. The\nExecutive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or academic position during the\nterm of this Agreement, except as may otherwise be expressly approved in advance by the Compensation Committee or other designee in writing.\n3. Compensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of three hundred twenty five thousand dollars ($325,000.00) per annum, payable in accordance with the regular payroll\npractices of the Company for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such\nbase salary, as from time to time adjusted, is hereafter referred to as the “Base Salary”.\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company’s fiscal year ending December 31, 2009, the Executive will be eligible, at the Compensation\nCommittee’s discretion, to receive a bonus payment equal to 50% of Base Salary, payable in accordance with the terms of the Company’s 2009\nAnnual Incentive Plan. For the remainder of the term hereof, the Executive shall be entitled to participate in the Company’s Annual Incentive Plan\n(the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee prior to the commencement of each fiscal year.\nNothing contained herein shall obligate the Company to continue the Annual Incentive Plan. Any compensation paid to the Executive under the\nAnnual Incentive Plan shall be in addition to the Base Salary. Except as otherwise expressly provided under the terms of the Annual Incentive Plan\nor this Agreement, the Executive shall not be entitled to earn bonus or other compensation for services rendered to the Company.\n(ii) Stock Options. Subject to approval by the Compensation Committee, the Company shall grant to the Executive an option to purchase\n250,000 shares of the common stock, $.01 par value, of the Company under the SAVVIS, Inc. Amended and Restated 2003 Incentive Compensation\nPlan (the “Plan”) at an exercise price per share equal to the public market closing price on the business day immediately prior to the date of grant\n(the “Option”). These options shall be non-qualified stock options to the extend permitted by the Plan and applicable law. The shares that are subject\nto the Option shall vest at the rate of twenty-five percent (25%) per year on each of the first four (4) anniversaries of the grant date; provided that the\nExecutive is still employed by the Company on each such vesting date. Vesting of the Option is also subject to the terms of Section 4(c)(ii) of this\nAgreement. Except as may be modified by the terms of this Agreement, the Option and all other options granted to the Executive by the Company\nshall be subject to the terms of the Plan and any applicable option certificate and shareholder and/or option holder agreements and other restrictions\nand limitations generally applicable to equity held by Company executives or otherwise required by law.\n4. Termination of Employment.\n(a) Executive’s employment with the Company may be terminated as follows:\n(i) by the Company with Cause;\n(ii) by the Company without Cause;\n(iii) upon Executive’s death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n(v) by Executive without Good Reason.\n(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as referred\nto in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination, plus\n(ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for business\nexpenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other benefits to which\nExecutive may be entitled which provide for payment or other benefits following termination (such as under disability insurance plan).\n2\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to any\namounts / benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then current annual\nBase Salary for one year, plus (y) at the discretion of the Compensation Committee, a pro-rated portion of the bonus that the Executive would be\nentitled to receive under the Company’s Annual Incentive Plan (“Bonus”). The pro-rated Bonus will be calculated by the compensation committee\nby extrapolating the Company’s anticipated full year performance based on the current year performance to date and then multiplying the resulting\nfull year extrapolation a fraction the numerator of which is the number of days during the calendar year the Executive worked in the year of\nInvoluntary Termination up to the termination date and the denominator of which is 365 (the amounts paid under (i) and (ii) constitute the\n“Severance Payment”). If the Executive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet\nreceived payment for the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual\nIncentive Plan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months of a Change in Control (a “Change in Control\nTermination”), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other equity-based\nawards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control Termination shall, provided\nsuch Equity Awards are assumed by the acquirer in such Change in Control, to the extent not then vested, fully vest and become exercisable as of the\nsuch date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve (12) months from the date\nof the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the agreement evidencing such award; and\n(y) the Executive shall be entitled to the Bonus.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with the\nCompany’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision of this\nAgreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known and\nunknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to prosecute any legal\naction or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive’s Involuntary Termination;\n(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following the\neffective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n3\n(e) Health Care Benefit. If the Executive elects to continue his or her health insurance coverage under the Consolidated Omnibus Budget\nReconciliation Act (“COBRA”) following an Involuntary Termination, then in addition to the benefits noted above, the Company shall pay the\nExecutive’s monthly premium under COBRA until the earliest of (i) the close of the twelve-month period following cessation of his or her\nemployment or (ii) the expiration of the Executive’s continuation coverage under COBRA.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be\nwithheld by law.\n(g) Section 409A Savings Clause. If any compensation or benefits provided by this Agreement may result in the application of Section 409A of\nthe Code, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude\nsuch compensation from the definition of “deferred compensation” within the meaning of such Section 409A or in order to comply with the\nprovisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such\nstatutory provisions and without any diminution in the value of the payments to the Executive.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any\nevent, within 2 /2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the\nlast day of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement\nduring any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the identification\nmethodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable by the\nCompany to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed\npursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company will not\npay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after such six-month period\ntogether with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of\nthe dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive may\ndevelop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to Confidential\nInformation during the course of employment. The Executive will comply with the policies and procedures of the Company and its Affiliates for\nprotecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or for the proper\nperformance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the Executive incident to\nhis employment or other association with the Company or any of its Affiliates. The Executive understands that this restriction shall continue to apply\nafter his employment terminates, regardless of the reason for such termination. The confidentiality obligation under this Section 5 shall not apply to\ninformation which is generally known or readily available to the public at the time of disclosure or becomes generally known through no wrongful\nact on the part of the Executive or any other Person having an obligation of confidentiality to the Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company\nor its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be the sole and\nexclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the Company at the time\nhis employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive’s\npossession or control.\n4\n1\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, the Executive shall,\nwhere permitted under applicable law, rule or regulation, provide written notice to the Company promptly after such request so that the Company\nmay, at its expense, seek a protective order or other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in\nconnection with seeking such order or other remedy). In the event that such protective order or other remedy is not obtained, the Executive shall\nfurnish only that portion of the Confidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to\nobtain assurance that confidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential\nInformation in the course of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have\nrequested or required the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to\nobtain reliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute “Confidential\nInformation” under this Agreement.\n6. Certain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially interfere\nwith his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive’s employment and for twelve (12) months following termination of his or her employment for any reason (the\n“Restricted Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or\notherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake any\nplanning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the Executive\nagrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Affiliates\nas conducted or under consideration at any time during the Executive’s employment, and further agrees not to work or provide services, in any\ncapacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person who is engaged in any\nbusiness that is competitive with the business of the Company or any of its Affiliates for which the Executive has provided services. The foregoing,\nhowever, shall not prevent the Executive’s passive ownership of two percent (2%) or less of the equity securities of any publicly traded company.\nNotwithstanding any provision in this Agreement, section 6. (b) (i) shall not be deemed to create post-employment non-competition restrictions on\nEmployee if Employee’s primary residence is in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or activity\nwhich such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the Executive has\nperformed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or otherwise had\ncontact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or has had access to\nConfidential Information which would assist in the Executive’s solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any employee\nor independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent contractor’s relationship\nwith the Company or any of its Affiliates.\n5\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the Company\nin every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive’s duties to his or her\nsuccessor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage the Company,\nthe members of the Company’s Board or the Company’s officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company. Executive\nhereby assigns to the Company all of Executive’s rights, title, and interest (including but not limited to all patent, trademark, copyright and trade\nsecret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within the scope of Executive’s\nemployment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of Confidential Information (“Work\nProduct”). Executive further acknowledges and agrees that all copyrightable Work Product prepared by Executive within the scope of Executive’s\nemployment with the Company are “works made for hire” and, consequently, that the Company owns all copyrights thereto. The Executive agrees to\nexecute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without\nlimitation the execution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Work Product to\nthe Company and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Work Product. The Executive will not\ncharge the Company for time spent in complying with these obligations. Notwithstanding the foregoing, any provision in this Agreement which\nprovides that Executive shall assign, offer to assign, any of his or her rights in an invention to the Company shall not apply to an invention that the\nExecutive developed entirely on his or her own time without using the Company’s equipment, supplies, facilities, or trade secret information except\nfor those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company’s business or actual demonstrably anticipated\nresearch or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions. The Company has expended a great deal of time, money and effort to develop and maintain its\nconfidential business information which, if misused or disclosed, could be very harmful to its business and could cause the Company to be at a\ncompetitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this Agreement but for the\nExecutive’s signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges that he or she has and will\nhave access to Confidential Information of the Company, and that the Company, in all fairness, needs certain protection in order to ensure that the\nExecutive does not misappropriate or misuse any trade secret or other Confidential Information or take any other action which could result in a loss\nof the goodwill of the Company and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage\nover the Company. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and\nenforceable in view of the Company’s legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business.\nTo the extent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so limited to\nthe greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be unaffected and such\nadjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be irreparable\nand without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a breach or\nthreatened breach of any of the Executive’s obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in addition to any\nother legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to temporary, preliminary\nand permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond), together with reasonable\nattorney’s fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there is a question as to the\nenforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct inconsistent with or contrary to such\nSection until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n6\n7. Definitions.\n(a) Definition of “Affiliate.” For all purposes under this Agreement, “Affiliate” shall mean, with respect to any Person, all Persons directly or\nindirectly controlling, controlled by or under common control with such Person, where control may be by either management authority, contract or\nequity interest. As used in this definition, “control” and correlative terms have the meanings ascribed to such words in Rule 12b-2 of the Securities\nExchange Act of 1934, as amended (the “Exchange Act”).\n(b) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean any of the following (i) the Executive’s willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the Executive’s\nunauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive’s engaging in illegal conduct that is\nlikely to be injurious to the Company; (iv) the Executive’s acts of fraud, dishonesty, or gross misconduct, or gross negligence in connection with the\nbusiness of the Company; (v) the Executive’s conviction of a felony; (vi) the Executive’s engaging in any act of moral turpitude reasonably likely to\nsubstantially and adversely affect the Company or its business; (vii) the Executive engaging in the illegal use of a controlled substance or using\nprescription medications unlawfully; (viii) the Executive’s abuse of alcohol; or (ix) the breach by the Executive of a material term of this Agreement,\nincluding, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of “Change in Control.” For all purposes under this Agreement, “Change in Control” shall mean any transaction in which a\nPerson or group (other than a group consisting of one or more of the Persons listed on Schedule A attached hereto and their respective Affiliates)\nbecomes the beneficial owner directly or indirectly (within the meaning of Rule 13d-3 under the Exchange Act) of more than 50% (on a fully-diluted\nbasis) of the total capital stock of the Company’s entitled to vote ordinarily for the election of directors.\n(d) Definition of “Confidential Information.” For all purposes under this Agreement, “Confidential Information” shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom any of\nthem plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or its Affiliates\nwould assist in competition against them. Confidential Information includes without limitation such information relating to (i) trade secrets, the\ndevelopment, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the Products, (iii) the costs,\nsources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and special needs of the customers of\nthe Company and its Affiliates and (v) client lists and the people and organizations with whom the Company and its Affiliates have business\nrelationships and the substance of those relationships. Confidential Information also includes any information that the Company or any of its\nAffiliates have received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information\nwould not be disclosed.\n(e) Definition of “Disability.” For all purposes under this Agreement, “Disability” shall mean the Executive becoming disabled during his\nemployment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is unable to\nperform substantially all of his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one\nhundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of “Good Reason.” For all purposes under this Agreement, “Good Reason” shall mean the occurrence of any of the following\nevents, without the Executive’s consent: (i) change in the Executive’s position as officer of the Company that materially reduces his or her authority\nor level of responsibility, (ii) a material reduction in his or her level of compensation (including base salary and target bonus) other than pursuant to a\nCompany-wide reduction of compensation, or (iii) a relocation of his or her employment more than 50 miles from the Executive’s office or location\nat the time of resignation.\n7\nTo constitute Good Reason, termination must occur within two (2) years following the initial occurrence of such event; Executive must\nprovide written notice within 90 days of the occurrence to the Company; and if correctable, Company must fail to correct within 30 days of notice of\ntermination.\n(g) Definition of “Intellectual Property.” For all purposes under this Agreement, “Intellectual Property” shall mean inventions, discoveries,\ndevelopments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets)\nconceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business\nhours or on or off Company premises) during the Executive’s employment and during the period of six (6) months immediately following\ntermination of his employment that relate to either the Products or any prospective activity of the Company or any of its Affiliates or that make use\nof Confidential Information or any of the equipment or facilities of the Company or any of its Affiliates.\n(h) Definition of “Involuntary Termination.” For all purposes under this Agreement, “Involuntary Termination” shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of “Person.” For all purposes under this Agreement, “Person” shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of “Products.” For all purposes under this Agreement, “Products” shall mean all products planned, researched, developed, tested,\nmanufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all services\nprovided or planned by the Company or any of its Affiliates, during the Executive’s employment.\n8. Miscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document, then\nthe provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the Company with\nrespect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company (other than the\nExecutive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly\ngiven when personally delivered or when mailed by U.S . registered or certified mail, return receipt requested and postage prepaid or deposited with\nan overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or her at the home address\nwhich he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its\ncorporate headquarters, and all notices shall be directed to the attention of its Senior Vice President of Human Resources.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to\nin writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either party of any\nbreach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition\nor provision or of the same condition or provision at another time.\n(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of specific\nduration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the Executive, which\nrights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without Cause and with or\nwithout notice.\n8\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that any\ndisputes arising under this Agreement are resolved in accordance with the parties’ expectations, this Agreement shall be governed by and construed\nunder the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of Missouri shall be\napplied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and enforcement of this\nAgreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should Missouri law be found not to\napply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall not be payable, the provisions of\nSection 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought in the state courts of Missouri located\nin St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby consents to personal jurisdiction in any such\naction brought in any such Missouri court, consents to service of process by the methods for notice under Section 8(b) hereof made upon such party,\nand such party’s agent and waives any objection to venue in any such Missouri court or to any claim that any such Missouri court is an inconvenient\nforum.\n(g) Attorney’s Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party with\nrespect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its attorney’s fees in a\nreasonable amount incurred in connection with such claim.\n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties’\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to herein,\nconstitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior discussions,\nnegotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter contained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as\nof the day and year first above written.\nSAVVIS, INC.\nEXECUTIVE\nBy: /s/ Mary Ann Altergott\nBy: /s/ Thomas T. Riley\nName: Mary Ann Altergott\nName: Thomas T. Riley\nTitle: Senior Vice President, Corporate Services\n9\nSchedule A\nWelsh, Carson, Anderson & Stowe VIII L.P.\nWCAS Management Corporation\nAffiliates of the foregoing\n10
332513ea156ad0fc36f0f84be998933b.pdf	jurisdiction party term	EX-10 3 advancedidsb2am1ex10.txt TRACE AUSTRALA AGREEMENT Appendix B Non-Disclosure Agreement THIS MUTUAL NON-DISCLOSURE\nAGREEMENT (The "Agreement") is made as of ___________, 2 00 3 (the "Effective Date") by and between Distributor, a corporation organized under the laws of\nthe State of Victoria in the Country of Australia, (the "Company"), and Advanced ID Corporation, with principal offices at Calgary, Alberta in the Country of\nCanada (the "Benefactor"). STATEMENT OF PURPOSE. This Agreement is being executed in connection with discussions and other exchanges of information\nthat representatives of the Company and the Participant have had or will have for the purpose of evaluating the possibility of entering into a business relationship\nand/or certain business transactions, for the protection of any and all of the Benefactor's proprietary and/or Confidential Information (as defined) and for such\nother purposes as the parties may collectively agree upon in writing (the "Purpose"). This Agreement is intended to allow both the Company and the Participant to\nhave open discussions while affording protection against disclosure or unauthorized use of their Confidential Information or any and all of the Benefactor's\nproprietary and/or Confidential Information (as defined). CONFIDENTIAL INFORMATION . The Company and the Participant understand and agree that during\nthe term of this Agreement they may be furnished with or otherwise have access to non-public information that the other party or the Benefactor consider to be of\na confidential, proprietary, or trade secret nature, including but not limited to the Benefactor's RFID-related technologies, systems, and processes, as well as\nother financial, business, and technical information, equipment specifications, locations and use, network configurations, marketing, engineering and other plans,\nfinancial statements and projections, customer, vendor and supplier information, research, designs, plans, specifications, drawings, blueprints, tracings, diagrams,\nmodels, samples, flow charts, data, computer programs, source code, software, disks, diskettes, tapes, compilations, methods, techniques, processes,\nprocedures, discoveries, ideas, concepts and know-how of the Benefactor, the Company or the Participant, whether in tangible or intangible form, and whether\nstored or not stored, compiled or memorized physically, electronically, graphically, photographically, or in writing (collectively, the "Confidential Information"). Both\nthe company and the Participant agree to secure and protect the Confidential Information of the Benefactor and the other party in strictest confidence in a manner\nconsistent with the maintenance of the Benefactor's and/or the other party's rights therein, using as great a degree of care, if not more as it uses to maintain the\nconfidentiality of its own confidential information of a similar nature or importance, but in no event using less than diligent care. Neither the Company, nor the\nParticipant shall sell, transfer, publish, disclose, or otherwise use or make available any portion of the Confidential Information of the Benefactor or of the other\nparty to third parties, except to those of its directors, officers, employees, or attorneys who clearly have a need-to-know the same, in furtherance of the specific\npurposes of this Agreement and as expressly authorized in this Agreement. All such disclosures shall be subject to all of the terms and conditions of this\nAgreement, and the party making such disclosure to such directors, officers, employees and/or attorneys shall be fully responsible for ensuring the compliance of\nall such parties with the terms and conditions of this Agreement. No license under any patent, trademark, copyright or any other worldwide intellectual property or\nproprietary rights laws is either granted or implied by the disclosure or provision of any Confidential Information covered hereby, including any and all of the\ninformation covered hereby, including any and all of the Benefactor's proprietary and/or Confidential Information. Nothing in this Agreement shall be deemed to\nobligate the Company or the Participant to disclose any Confidential Information to the other, or to accept any Confidential Information from the other, be it the\nBenefactor's or theirs. In addition, nothing in this Agreement shall be deemed to commit or bind the Benefactor, the Company or the Participant to enter into any\nother contractual or other relationship, or to purchase any goods or services of any of the aforementioned parties. NON -CONFIDENTIAL INFORMATION .\nNotwithstanding Section 2, Confidential Information of any of the concerned parties shall not include information which: (a) is, as of the time of its disclosure or\nthereafter becomes part of the public domain through a source other than the receiving party, without violation of this Agreement; (b) can be demonstrated to be\n(x) rightfully known to the receiving party as of the time of its disclosure, or (y) independently developed by the receiving party; (c) is lawfully learned by the\nreceiving party without restriction from a third party who obtained the Confidential Information other than as a result of a breach of any confidentiality obligation; or\n(d) is required to be disclosed pursuant to a duly authorized subpeona, court order, or government authority, in which event the party subject to same shall\nprovide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy.\nOWNERSHIP. The receiving party agrees that all Confidential Information of the Benefactor and the disclosing party which comes to the receiving party's custody\nor possession, is and at all times shall be the exclusive property of the Benefactor in the case of its Confidential Information, and the disclosing party in the case\nof its Confidential Information, to be used by the receiving party only for the specific purposes expressly authorized by this Agreement. Upon the termination or\nexpiration of this Agreement, or at the request of the Benefactor or the disclosing party at any time, the receiving party shall promptly destroy all of its copies of\nsuch Confidential Information or return the same to the Benefactor or the disclosing party (in accordance with the Benefactor's or the disclosing party's\ninstructions, whichever one may ask), and shall, within thirty (30) days of such termination, expiration or receiving such a request, certify in writing its compliance\nwith the terms of this provision. After such destruction or delivery, the receiving party shall not retain any copies thereof, except as may be allowed under\nseparate agreement or as lawfully retained. No disclosure of Confidential Information shall constitute any representation or warranty regarding the Confidential\nInformation; all Confidential Information is provided "AS IS" with all faults and the Benefactor shall have any liability for the other party's reliance thereon.\nMISCELLANEOUS. This Agreement constitutes the entire agreement between the Company and the Participant concerning the subject matter hereof and\nsupersedes any prior or contemporaneous agreements concerning the subject matter hereof. The term of this Agreement shall be for a period of two (2) years\nunless terminated upon written notice by the affected party to another. The confidentiality obligations for Confidential Information of trade secret nature shall\nsurvive the termination or expiration of this Agreement for as long as such Confidential Information remains a trade secret, including as it pertains to the trade\nsecrets and proprietary information of Benefactor. The confidentiality obligations for all non trade secret Confidential Information shall continue for a period of five\n(5) years following termination or expiration of this Agreement. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, and any invalid or unenforceable provision shall be deemed to be amended to the minimum extent\nnecessary to render it enforceable under applicable law while retaining to the maximum extent possible the intent and economic benefit of the original provision\nconsistent with applicable law. No delay or omission by a party in exercising any right under this Agreement will operate as a waiver of that or any other right. This\nAgreement is governed by and will be construed in accordance with the laws of the State of South Dakota in the United States of America without regard to\nconflicts of its principles. The Company and the Participant hereby expressly submit to the jurisdiction and venue of the appropriate federal or state courts in the\nState of South Dakota in the United States of America, however, the Company and the Participant agree that any controversy or claim arising out of or relating to\nthis Agreement may be brought before a court or tribunal of competent jurisdiction in any Nation, Country, State, Commonwealth or other locality as be required\nto enforce their rights or as may be required to enforce the rights of the Benefactor, and that the Benefactor shall have the standing in such court or tribunal to\nenforce any and all of its rights with concern to any and all of the its proprietary and/or Confidential Information, including the pursuit of injunctive contractors and\nshall not be deemed to be an agent, partner, joint venture, or franchisor-franchisee with the other or with the Benefactor for any purpose. The Company and the\nParticipant acknowledge that their breach of this Agreement may cause irreparable injury to the Benefactor or to the other party and that the Benefactor and/or\nthe other party may seek and obtain injunctive and other equitable relief in a court or tribunal of competent jurisdiction against such breach. No amendment or\nmodification of this Agreement shall be valid or binding on the Company or the Participant unless made in a mutually executed writing, and no amendment or\nmodification of this Agreement shall be valid or binding on the Benefactor unless executed thereby. All affected parties shall not disclose, publicize or advertise in\nany manner the discussions or negotiations contemplated by this Agreement without the prior written consent of the affected, except as may be required by law.\nAll notices under this Agreement shall be in writing and sent to the address listed herein (or to such different address as may be designated by a party by written\nnotice to the other party), and shall be deemed to have been delivered (a) on the date personally delivered, (b) on the date mailed, postage prepaid by certified\nmail with return receipt requested or by an internationally- recognized express courier, or (c) when sent via facsimile and confirmed to the parties' addresses set\nforth herein. Any notice to Benefactor shall be sent to the attention of the President. This Agreement may be executed in multiple counterparts, all of which taken\ntogether shall constitute a single instrument. This Agreement may be delivered by facsimile. IN WITNESS WHEREOF, the parties hereto have executed this\nAgreement as of the Effective Date and agree to be legally bound by all terms and conditions herein, including all those benefiting the Benefactor. TRACE\nAUSTRALIA PTY LTD. ADVANCED ID CORPORATION X /s/Anthony Hurley /s/Barry Bennett By: Anthony Hurley By: Barry Bennett Title: Director Title:\nPresident & CEO Address: Albert Park, Address: Calgary Victoria, Australia Alberta, Canada Date: 01/09/2004 Date: Jan. 19, 2004	EX-lO 3 advancedidsb2amlex10.txtTRAC E AU STRALA AG RE E M E NT Appendix B Non-Disclosure Agreement THIS M UTUAL NO N-DISC LOSU R E\nAGRE E ME NT (The "Agreement") is made as of ___________ , 2003 (the "Effective Date") by and between Distributor, a corporation organized under the laws of\nthe State ofVictoria in the Country ofAustralia, (the "Company"), and Advanced ID Corporation, with principal of‘fices atCaIgary, Alberta in the Country of\nCanada (the "Benefactor"). STATE ME NT OF PU RPOSE. This Agreement is being executed in connection with discussions and other exchanges of information\nthat representatives of the Company and the Participant have had or will have for the purpose ofevaluating the possibility ofentering into a business relationship\nand/or certain business transactions, for the protection of any and all of the Benefactor's proprietary and/or Confidential Information (as defined) and for such\nother purposes as the parties may collectively agree upon in writing (the "P urpose"). This Agreement is intended to allow both the Company and the Participantto\nhave open discussions while affording protection againstdisclosure or unauthorized use oftheir Confidential Information or any and all ofthe Benefactor's\nproprietary and/or Confidential Information (as defined). CONFIDE NTIAL INFORMATION. The Company and the Participant understand and agree that during\nthe term of this Agreement they may be furnished with or otherwise have access to non-public information thatthe other party or the Benefactor consider to be of\na confidential, proprietary, or trade secret nature, including but not limited to the Benefactor's RFID-related technologies, systems, and processes, as well as\nother financial, business, and technical information, equipment specifications, locations and use, network configurations, marketing, engineering and other plans,\nfinancial statemens and projections, customer, vendor and supplier information, research, designs, plans, specifications, drawings, blueprins, tracings, diagrams,\nmodels, samples, fiow chars, data, computer programs, source code, software, disks, diskettes, tapes, compilations, methods, techniques, processes,\nprocedures, discoveries, ideas, conceps and know-how of the Benefactor, the Company or the Participant, whether in tangible or intangible form, and whether\nstored or notstored, compiled or memorized physically, electronically, graphically, photographically, or in writing (collectively, the "Confidential Information"). Both\nthe company and the Participant agree to secure and protectthe Confidential Information ofthe Benefactor and the other party in strictestconfidence in a manner\nconsistentwith the maintenance of the Benefactor's and/or the other party's righs therein, using as great a degree ofcare, if not more as it uses to maintain the\nconfidentiality of is own confidential information of a similar nature or importance, but in no event using less than diligentcare. Neither the Company, nor the\nParticipantshall sell, transfer, publish, disclose, or otherwise use or make available any portion of the Confidential Information of the Benefactor or of the other\nparty to third parties, except to those of is directors, officers, employees, or attorneys who clearly have a need-to-know the same, in furtherance ofthe specific\npurposes of this Agreement and as expressly authorized in this Agreement. All such disclosures shall be subjectto all of the terms and conditions of this\nAgreement, and the party making such disclosure to such directors, officers, employees and/or attorneys shall be fully responsible for ensuring the compliance of\nall such parties with the terms and conditions ofthis Agreement. No license under any patent, trademark, copyrightor any other worldwide intellectual property or\nproprietary righs laws is either granted or implied by the disclosure or provision of any Confidential Information covered hereby, including any and all ofthe\ninformation covered hereby, including any and all of the Benefactor's proprietary and/or Confidential Information. Nothing in this Agreement shall be deemed to\nobligate the Company or the Participant to disclose any Confidential Information to the other, or to accept any Confidential Information from the other, be it the\nBenefactor's or theirs. In addition, nothing in this Agreementshall be deemed to commitor bind the Benefactor, the Company or the Participant to enter into any\nother contractual or other relationship, or to purchase any goods or sen/ices of any of the aforementioned parties. NON-CONFIDE NTIAL INFORMATION.\nNotwithstanding Section 2, Confidential Information of any of the concerned parties shall not include information which: (a) is, as of the time of is disclosure or\nthereafter becomes partofthe public domain through a source other than the receiving party, without violation of this Agreement; (b) can be demonstrated to be\n(x) rightfully known to the receiving party as ofthe time of is disclosure, or (y) independently developed by the receiving party; (c) is lawfully learned by the\nreceiving party without restriction from a third party who obtained the Confidential Information other than as a result of a breach of any confidentiality obligation; or\n(d) is required to be disclosed pursuant to a duly authorized subpeona, court order, or government authority, in which eventthe party subjectto same shall\nprovide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy.\nOWNE RSHIP. The receiving party agrees that all Confidential Information of the Benefactor and the disclosing party which comes to the receiving party's custody\nor possession, is and at all times shall be the exclusive property of the Benefactor in the case of is Confidential Information, and the disclosing party in the case\nof is Confidential Information, to be used by the receiving party only for the specific purposes expressly authorized by this Agreement. Upon the termination or\nexpiration of this Agreement, or atthe requestofthe Benefactor or the disclosing party at any time, the receiving party shall promptly destroy all of is copies of\nsuch Confidential Information or return the same to the Benefactor or the disclosing party (in accordance with the Benefactor's or the disclosing party's\ninstructions, whichever one may ask), and shall, within thirty (30) days of such termination, expiration or receiving such a request, certify in writing is compliance\nwith the terms of this provision. After such destruction or delivery, the receiving party shall not retain any copies thereof, except as may be allowed under\nseparate agreementor as lawfully retained. No disclosure ofConfidential Information shall constitute any representation or warranty regarding the Confidential\nInformation; all Confidential Information is provided "AS IS" with all fauls and the Benefactor shall have any liability forthe other party's reliance thereon.\nMISC E LLAN EOUS. This Agreementconstitutes the entire agreement between the Company and the Participant concerning the subject matter hereof and\nsupersedes any prior or contemporaneous agreemens concerning the subject matter hereof. The term ofthis Agreementshall be for a period oftwo (2) years\nunless terminated upon written notice by the affected party to another. The confidentiality obligations for Confidential Information oftrade secret nature shall\nsun/ive the termination or expiration ofthis Agreementfor as long as such Confidential Information remains a trade secret, including as it pertains to the trade\nsecres and proprietary information of Benefactor. The confidentiality obligations for all non trade secret Confidential Information shall continue for a period of five\n(5) years following termination or expiration of this Agreement. The invalidity or unenforceability of any provision of this Agreementshall not affectthe validity or\nenforceability of any other provision of this Agreement, and any invalid or unenforceable provision shall be deemed to be amended to the minimum extent\nnecessary to render itenforceable under applicable law while retaining to the maximum extent possible the intent and economic benefit of the original provision\nconsistentwith applicable law. No delay or omission by a party in exercising any right under this Agreement will operate as a waiver of that or any other right. This\nAgreement is governed by and will be construed in accordance with the laws ofthe State of South Dakota in the United States ofAmerica without regard to\nconflics of is principles. The Company and the Participant hereby expressly submit to the jurisdiction and venue of the appropriate federal or state cours in the\nState of South Dakota in the United States ofAmerica, however, the Company and the Participant agree that any controversy or claim arising outofor relating to\nthis Agreement may be brought before a courtor tribunal ofcompetentjurisdiction in any Nation, Country, State, Commonwealth or other locality as be required\nto enforce their righs or as may be required to enforce the righs ofthe Benefactor, and thatthe Benefactor shall have the standing in such court or tribunal to\nenforce any and all of is righs with concern to any and all of the is proprietary and/or Confidential Information, including the pursuit of injunctive contractors and\nshall not be deemed to be an agent, partner, joint venture, or franchisor-franchisee with the other or with the Benefactor for any purpose. The Company and the\nParticipant acknowledge thattheir breach of this Agreement may cause irreparable injury to the Benefactor or to the other party and thatthe Benefactor and/or\nthe other party may seek and obtain injunctive and other equitable relief in a court or tribunal ofcompetentjurisdiction againstsuch breach. No amendmentor\nmodification ofthis Agreement shall be valid or binding on the Company or the Participant unless made in a mutually executed writing, and no amendmentor\nmodification ofthis Agreement shall be valid or binding on the Benefactor unless executed thereby. All affected parties shall notdisclose, publicize or advertise in\nany manner the discussions or negotiations contemplated by this Agreementwithoutthe prior written consentof the affected, except as may be required by law.\nAll notices under this Agreementshall be in writing and sentto the address listed herein (or to such different address as may be designated by a party by written\nnotice to the other party), and shall be deemed to have been delivered (a) on the date personally delivered, (b) on the date mailed, postage prepaid by certified\nmail with return receipt requested or by an internationally- recognized express courier, or (c) when sentvia facsimile and confirmed to the parties' addresses set\nforth herein. Any notice to Benefactor shall be sent to the attention of the President. This Agreement may be executed in multiple counterpars, all ofwhich taken\ntogether shall constitute a single instrument. This Agreement may be delivered by facsimile. IN WITNESS WHEREOF, the parties hereto have executed this\nAgreement as of the Effective Date and agree to be legally bound by all terms and conditions herein, including all those benefiting the Benefactor. TRACE\nAUSTRALIA PTY LTD. ADVANCED |D CORPORATION X /s/Anthony Hurley /s/Barry Bennett By: Anthony Hurley By: Barry BennettTitle: Director Title:\nPresident& CEO Address: Albert Park, Address: Calgary Victoria, Australia Alberta, Canada Date: 01/09/2004 Date: J an. 19,2004	EX-10 3 advancedidsb2amlexlo.tx TRACE AUSTRALA AGREEMENT Appendix B Non-Disclosure Agreement THIS MUTUAL NON-DISCLOSURE\nAGREEMENT (The "Agreement") is made as of\n2003 (the 'Effective Date") by and between Distributor, a corporation organized under the laws of\nthe State of Victoria in the Country of Australia, (the "Company"), and Advanced ID Corporation, with principal offices at Calgary, Alberta in the Country\nof\nCanada (the "Benefactor"). STATEMENT OF PURPOSE. This Agreement is being executed in connection with discussions and other exchanges of information\nthat representatives of the Company and the Participant have had or will have for the purpose of evaluating the possibility of entering into a business relationship\nand/or certain business transactions, for the protection of any and all of the Benefactor's proprietary and/or Confidential Information (as defined) and for such\nother purposes as the parties may collectively agree upon in writing (the "Purpose"). This Agreement is intended to allow both the Company and the Participant\nto\nhave open discussions while affording protection against disclosure or unauthorized use of their Confidential Information or any and all of the Benefactor's\nproprietary and/or Confidential Information (as defined). CONFIDENTIAL INFORMATION. The Company and the Participant understand and agree that during\nthe term of this Agreement they may be furnished with or otherwise have access to non-public information that the other party or the Benefactor consider to be of\na confidential, proprietary, or trade secret nature, including but not limited to the Benefactor's RFID-related technologies, systems, and processes, as well as\nother financial, business, and technical information, equipment specifications, locations and use, network configurations, marketing, engineering and other plans,\nfinancial statements and projections, customer, vendor and supplier information, research, designs, plans, specifications, drawings, blueprints, tracings, diagrams,\nmodels, samples, flow charts, data, computer programs, source code, software, disks, diskettes, tapes, compilations, methods, techniques, processes,\nprocedures, discoveries, ideas, concepts and know-how of the Benefactor, the Company or the Participant, whether in tangible or intangible form, and whether\nstored or not stored, compiled or memorized physically, electronically, graphically, photographically, or in writing (collectively, the "Confidential Information"). Both\nthe company and the Participant agree to secure and protect the Confidential Information of the Benefactor and the other party in strictest confidence in a manner\nconsistent with the maintenance of the Benefactor's and/or the other party's rights therein, using as great a degree of care, if not more as it uses to maintain the\nconfidentiality of its own confidential information of a similar nature or importance, but in no event using less than diligent care. Neither the Company, nor the\narticipant shall sell, transfer, publish, disclose, or otherwise use or make available any portion of the Confidential Information of the Benefactor or of the other\nparty to third parties, except to those of its directors, officers, employees, or attorneys who clearly have a need-to-know the same, in furtherance of the specific\npurposes of this Agreement and as expressly authorized in this Agreement. All such disclosures shall be subject to all of the terms and conditions of this\nAgreement, and the party making such disclosure to such directors, officers, employees and/or attorneys shall be fully responsible for ensuring the compliance of\nall such parties with the terms and conditions of this Agreement. No license under any patent, trademark, copyright or any other worldwide intellectual property\nor\nproprietary rights laws is either granted or implied by the disclosure or provision of any Confidential Information covered hereby, including any and all of the\ninformation covered hereby, including any and all of the Benefactor's proprietary and/or Confidential Information. Nothing in this Agreement shall be deemed to\nobligate the Company or the articipant to disclose any Confidentia Information to the other, or to accept any Confidential Information from the other, be it the\nBenefactor's or theirs. In addition, nothing in this Agreement shall be deemed to commit or bind the Benefactor, the Company or the articipant to enter into any\nother contractual or other relationship, or to purchase any goods or services of any of the aforementioned parties. NON-CONFIDENTIAL INF ORMATION.\nNotwithstanding Section 2, Confidential Information of any of the concerned parties shall not include information which: (a) is, as of the time of its disclosure\nor\nthereafter becomes part of the public domain through a source other than the receiving party, without violation of this Agreement; (b) can be demonstrated to\nbe\n(x) rightfully known to the receiving party as of the time of its disclosure, or (y) independently developed by the receiving party; (c) is lawfully learned by the\nreceiving party without restriction from a third party who obtained the Confidential Information other than as a result of a breach of any confidentiality obligation; or\n(d) is required to be disclosed pursuant to a duly authorized subpeona, court order or government authority, in which event the party subject to same shal\nprovide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy.\nOWNERSHIP The receiving party agrees that all Confidential Information of the Benefactor and the disclosing party which comes to the receiving party's custody\nor possession is and at all times shal be the exclusive property of the Benefactor in the case of its Confidential Information, and the disclosing party in the case\nof its Confidential Information to be used by the receiving party only for the specific purposes expressly authorized by this Agreement Jpon the termination\nor\nexpiration of this Agreement, or at the request of the Benefactor or the disclosing party at any time, the receiving party shall promptly destroy all of its copies\nof\nsuch Confidential Information or return the same to the Benefactor or the disclosing party (in accordance with the Benefactor's or the disclosing party's\ninstructions, whichever one may ask), and shall, within thirty (30) days of such termination, expiration or receiving such a request, certify in writing its compliance\nwith the terms of this provision. After such destruction or delivery, the receiving party shall not retain any copies thereof, except as may be allowed under\nseparate agreement or as lawfully retained. No disclosure of Confidential Information shal constitute any representation or warranty regarding the Confidential\nInformation; all Confidential Information is provided "AS IS" with all faults and the Benefactor shall have any liability for the other party's reliance thereon.\nMISCELLANEOUS. This Agreement constitutes the entire agreement between the Company and the articipant concerning the subject matter hereof and\nsupersedes any prior or contemporaneous agreements concerning the subject matter hereof. The term of this Agreement shall be for a period of two (2) years\nunless terminated upon written notice by the affected party to another. The confidentiality obligations for Confidential Information of trade secret nature shall\nsurvive the termination or expiration of this Agreement for as long as such Confidential Information remains a trade secret, including as it pertains to the trade\nsecrets and proprietary information of Benefactor. The confidentiality obligations for all non trade secret Confidential Information shall continue for a period of five\n(5) years following termination or expiration of this Agreement. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, and any invalid or unenforceable provision shall be deemed to be amended to the minimum extent\nnecessary to render it enforceable under applicable law while retaining to the maximum extent possible the intent and economic benefit of the original provision\nconsistent with applicable law. No delay or omission by a party in exercising any right under this Agreement will operate as a waiver of that or any other right. This\nAgreement is governed by and will be construed in accordance with the laws of the tate of outh Dakota in the United States of America without regard to\nconflicts of its principles. The Company and the Participant hereby expressly submit to the jurisdiction and venue of the appropriate federal or state courts in\nthe\nState of South Dakota in the United States of America, however, the Company and the Participant agree that any controversy or claim arising out of or relating to\nthis Agreement may be brought before a court or tribunal of competent jurisdiction in any Nation, Country, State, Commonwealth or other locality as be required\nto enforce their rights or as may be required to enforce the rights of the Benefactor, and that the Benefactor shal have the standing in such court or tribuna to\nenforce any and all of its rights with concern to any and all of the its proprietary and/or Confidential Information, including the pursuit of injunctive contractors and\nshall not be deemed to be an agent, partner, joint venture, or franchisor-franchisee with the other or with the Benefactor for any purpose. The Company and the\nParticipant acknowledge that their breach of this Agreement may cause irreparable injury to the Benefactor or to the other party and that the Benefactor and/or\nthe other party may seek and obtain injunctive and other equitable relief in a court or tribunal of competent jurisdiction against such breach. No amendment or\nmodification of this Agreement shall be valid or binding on the Company or the Participant unless made in a mutually executed writing, and no amendment or\nmodification of this Agreement shall be valid or binding on the Benefactor unless executed thereby. All affected parties shall not disclose, publicize or advertise in\nany manner the discussions or negotiations contemplated by this Agreement without the prior written consent of the affected, except as may be required by\nlaw.\nAIl notices under this Agreement shall be in writing and sent to the address listed herein (or to such different address as may be designated by a party by written\nnotice to the other party), and shall be deemed to have been delivered (a) on the date personally delivered, (b) on the date mailed, postage prepaid by certified\nmai with return receipt requested or by an internationally- recognized express courier, or (c) when sent via facsimile and confirmed to the parties' addresses\nset\nforth\nherein. Any notice to Benefactor shal be sent to the attention of the P resident. This Agreement may be executed in multiple counterparts, all of which taken\ntogether shall constitute a single instrument. This Agreement may be delivered by facsimile. IN WITNESS WHEREOF, the parties hereto have executed\nthis\nAgreement as of the Effective Date and agree to be legally bound by all terms and conditions herein, including all those benefiting the Benefactor. TRACE\nAUSTRALIA PTY LTD. ADVANCED ID CORPORATION X /s/Anthony Hurley s/Barry Bennett By: Anthony Hurley By: Barry Bennett Title: Director Title:\nPresident & CEO Address: Albert Park, Address: Calgary Victoria, Australia Alberta, Canada Date: 01/09/2004 Date: J an. 19, 2004	EX-10 3 advancedidsb2am1ex10.txt TRACE AUSTRALA AGREEMENT Appendix B Non-Disclosure Agreement THIS MUTUAL NON-DISCLOSURE\nAGREEMENT (The "Agreement") is made as of ___________, 2 00 3 (the "Effective Date") by and between Distributor, a corporation organized under the laws of\nthe State of Victoria in the Country of Australia, (the "Company"), and Advanced ID Corporation, with principal offices at Calgary, Alberta in the Country of\nCanada (the "Benefactor"). STATEMENT OF PURPOSE. This Agreement is being executed in connection with discussions and other exchanges of information\nthat representatives of the Company and the Participant have had or will have for the purpose of evaluating the possibility of entering into a business relationship\nand/or certain business transactions, for the protection of any and all of the Benefactor's proprietary and/or Confidential Information (as defined) and for such\nother purposes as the parties may collectively agree upon in writing (the "Purpose"). This Agreement is intended to allow both the Company and the Participant to\nhave open discussions while affording protection against disclosure or unauthorized use of their Confidential Information or any and all of the Benefactor's\nproprietary and/or Confidential Information (as defined). CONFIDENTIAL INFORMATION . The Company and the Participant understand and agree that during\nthe term of this Agreement they may be furnished with or otherwise have access to non-public information that the other party or the Benefactor consider to be of\na confidential, proprietary, or trade secret nature, including but not limited to the Benefactor's RFID-related technologies, systems, and processes, as well as\nother financial, business, and technical information, equipment specifications, locations and use, network configurations, marketing, engineering and other plans,\nfinancial statements and projections, customer, vendor and supplier information, research, designs, plans, specifications, drawings, blueprints, tracings, diagrams,\nmodels, samples, flow charts, data, computer programs, source code, software, disks, diskettes, tapes, compilations, methods, techniques, processes,\nprocedures, discoveries, ideas, concepts and know-how of the Benefactor, the Company or the Participant, whether in tangible or intangible form, and whether\nstored or not stored, compiled or memorized physically, electronically, graphically, photographically, or in writing (collectively, the "Confidential Information"). Both\nthe company and the Participant agree to secure and protect the Confidential Information of the Benefactor and the other party in strictest confidence in a manner\nconsistent with the maintenance of the Benefactor's and/or the other party's rights therein, using as great a degree of care, if not more as it uses to maintain the\nconfidentiality of its own confidential information of a similar nature or importance, but in no event using less than diligent care. Neither the Company, nor the\nParticipant shall sell, transfer, publish, disclose, or otherwise use or make available any portion of the Confidential Information of the Benefactor or of the other\nparty to third parties, except to those of its directors, officers, employees, or attorneys who clearly have a need-to-know the same, in furtherance of the specific\npurposes of this Agreement and as expressly authorized in this Agreement. All such disclosures shall be subject to all of the terms and conditions of this\nAgreement, and the party making such disclosure to such directors, officers, employees and/or attorneys shall be fully responsible for ensuring the compliance of\nall such parties with the terms and conditions of this Agreement. No license under any patent, trademark, copyright or any other worldwide intellectual property or\nproprietary rights laws is either granted or implied by the disclosure or provision of any Confidential Information covered hereby, including any and all of the\ninformation covered hereby, including any and all of the Benefactor's proprietary and/or Confidential Information. Nothing in this Agreement shall be deemed to\nobligate the Company or the Participant to disclose any Confidential Information to the other, or to accept any Confidential Information from the other, be it the\nBenefactor's or theirs. In addition, nothing in this Agreement shall be deemed to commit or bind the Benefactor, the Company or the Participant to enter into any\nother contractual or other relationship, or to purchase any goods or services of any of the aforementioned parties. NON -CONFIDENTIAL INFORMATION .\nNotwithstanding Section 2, Confidential Information of any of the concerned parties shall not include information which: (a) is, as of the time of its disclosure or\nthereafter becomes part of the public domain through a source other than the receiving party, without violation of this Agreement; (b) can be demonstrated to be\n(x) rightfully known to the receiving party as of the time of its disclosure, or (y) independently developed by the receiving party; (c) is lawfully learned by the\nreceiving party without restriction from a third party who obtained the Confidential Information other than as a result of a breach of any confidentiality obligation; or\n(d) is required to be disclosed pursuant to a duly authorized subpeona, court order, or government authority, in which event the party subject to same shall\nprovide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy.\nOWNERSHIP. The receiving party agrees that all Confidential Information of the Benefactor and the disclosing party which comes to the receiving party's custody\nor possession, is and at all times shall be the exclusive property of the Benefactor in the case of its Confidential Information, and the disclosing party in the case\nof its Confidential Information, to be used by the receiving party only for the specific purposes expressly authorized by this Agreement. Upon the termination or\nexpiration of this Agreement, or at the request of the Benefactor or the disclosing party at any time, the receiving party shall promptly destroy all of its copies of\nsuch Confidential Information or return the same to the Benefactor or the disclosing party (in accordance with the Benefactor's or the disclosing party's\ninstructions, whichever one may ask), and shall, within thirty (30) days of such termination, expiration or receiving such a request, certify in writing its compliance\nwith the terms of this provision. After such destruction or delivery, the receiving party shall not retain any copies thereof, except as may be allowed under\nseparate agreement or as lawfully retained. No disclosure of Confidential Information shall constitute any representation or warranty regarding the Confidential\nInformation; all Confidential Information is provided "AS IS" with all faults and the Benefactor shall have any liability for the other party's reliance thereon.\nMISCELLANEOUS. This Agreement constitutes the entire agreement between the Company and the Participant concerning the subject matter hereof and\nsupersedes any prior or contemporaneous agreements concerning the subject matter hereof. The term of this Agreement shall be for a period of two (2) years\nunless terminated upon written notice by the affected party to another. The confidentiality obligations for Confidential Information of trade secret nature shall\nsurvive the termination or expiration of this Agreement for as long as such Confidential Information remains a trade secret, including as it pertains to the trade\nsecrets and proprietary information of Benefactor. The confidentiality obligations for all non trade secret Confidential Information shall continue for a period of five\n(5) years following termination or expiration of this Agreement. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, and any invalid or unenforceable provision shall be deemed to be amended to the minimum extent\nnecessary to render it enforceable under applicable law while retaining to the maximum extent possible the intent and economic benefit of the original provision\nconsistent with applicable law. No delay or omission by a party in exercising any right under this Agreement will operate as a waiver of that or any other right. This\nAgreement is governed by and will be construed in accordance with the laws of the State of South Dakota in the United States of America without regard to\nconflicts of its principles. The Company and the Participant hereby expressly submit to the jurisdiction and venue of the appropriate federal or state courts in the\nState of South Dakota in the United States of America, however, the Company and the Participant agree that any controversy or claim arising out of or relating to\nthis Agreement may be brought before a court or tribunal of competent jurisdiction in any Nation, Country, State, Commonwealth or other locality as be required\nto enforce their rights or as may be required to enforce the rights of the Benefactor, and that the Benefactor shall have the standing in such court or tribunal to\nenforce any and all of its rights with concern to any and all of the its proprietary and/or Confidential Information, including the pursuit of injunctive contractors and\nshall not be deemed to be an agent, partner, joint venture, or franchisor-franchisee with the other or with the Benefactor for any purpose. The Company and the\nParticipant acknowledge that their breach of this Agreement may cause irreparable injury to the Benefactor or to the other party and that the Benefactor and/or\nthe other party may seek and obtain injunctive and other equitable relief in a court or tribunal of competent jurisdiction against such breach. No amendment or\nmodification of this Agreement shall be valid or binding on the Company or the Participant unless made in a mutually executed writing, and no amendment or\nmodification of this Agreement shall be valid or binding on the Benefactor unless executed thereby. All affected parties shall not disclose, publicize or advertise in\nany manner the discussions or negotiations contemplated by this Agreement without the prior written consent of the affected, except as may be required by law.\nAll notices under this Agreement shall be in writing and sent to the address listed herein (or to such different address as may be designated by a party by written\nnotice to the other party), and shall be deemed to have been delivered (a) on the date personally delivered, (b) on the date mailed, postage prepaid by certified\nmail with return receipt requested or by an internationally- recognized express courier, or (c) when sent via facsimile and confirmed to the parties' addresses set\nforth herein. Any notice to Benefactor shall be sent to the attention of the President. This Agreement may be executed in multiple counterparts, all of which taken\ntogether shall constitute a single instrument. This Agreement may be delivered by facsimile. IN WITNESS WHEREOF, the parties hereto have executed this\nAgreement as of the Effective Date and agree to be legally bound by all terms and conditions herein, including all those benefiting the Benefactor. TRACE\nAUSTRALIA PTY LTD. ADVANCED ID CORPORATION X /s/Anthony Hurley /s/Barry Bennett By: Anthony Hurley By: Barry Bennett Title: Director Title:\nPresident & CEO Address: Albert Park, Address: Calgary Victoria, Australia Alberta, Canada Date: 01/09/2004 Date: Jan. 19, 2004
335560b5fec7cafc3b9822fb13113fa0.pdf	effective_date jurisdiction party term	EX-10.5 6 dex105.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.5\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON -COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your 2008 salary increase, your 2008 restricted stock grant,\nyour becoming eligible to participate in the Restricted Cash Feature under the AMIP Plan, the Restructuring Program Bonus and the payments\ndescribed in Paragraph 2 below, benefits that you will not be eligible for if you do not sign this Agreement, and in recognition of the highly\ncompetitive nature of the Company’s business, you agree as follows:\n1. Protection of Confidential Information.\n(a) You acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c) For purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason\nwhatsoever, whether voluntary or involuntary (the “Non-Competition Period”), you shall not, directly or indirectly, without the prior written\nconsent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the efforts (as an employee, owner,\nstockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor (as defined herein) of the\nCompany at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the manufacture, design and/or\nsale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies the Company may pursue\nhereunder, the Non-Competition Period will be extended by the number of months you were in violation of this Paragraph 2(b) and you shall\nhave no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of less than 2% of any class of\nsecurities of a public company shall not violate this Section 2(b).\n(c) If you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay”),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\n(d) If you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e) If you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f) For purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g) In order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision.\n(h) To the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\n3. If you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5. Severability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6. Waiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7. Entire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n8. At-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9. Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nYou must sign and return this Agreement by June 6, 2008, if you wish to receive your 2008 increase, your 2008 restricted stock grant, be\neligible to participate in the Restricted Cash Feature under the AMIP Plan, and be eligible for the payments described in paragraph 2(c), 2(d) and\n2(e) above.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Brian Lynch\nMark G. Morrison\nBrian Lynch\nExecutive Vice President, Human Resources\nPresident, Ann Taylor Factory\nDate: 6/9/08\nDate: 6/9/08	EX-10.5 6 dex105.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT Exhibit 10.5\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your 2008 salary increase, your 2008 restricted stock grant, your becoming eligible to participate in the Restricted Cash Feature under the AMIP Plan, the Restructuring Program Bonus and the payments described in Paragraph 2 below, benefits that you will not be eligible for if you do not sign this Agreement, and in recognition of the highly competitive nature of the Company’s business, you agree as follows: 1.\n@)\n(b)\n©\n(a)\n(b)\nProtection of Confidential Information.\nYou acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\nAccordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(i) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\nFor purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\nNon-solicitation of Associates; Non-competition.\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\nDuring your employment and for a period of 12 months after your separation from the Company for any reason\n©\n(d)\n(®)\n®\n(8)\nwhatsoever, whether voluntary or involuntary (the “Non-Competition Period”), you shall not, directly or indirectly, without the prior written\nconsent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the efforts (as an employee, owner,\nstockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor (as defined herein) of the\nCompany at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the manufacture, design and/or\nsale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies the Company may pursue\nhereunder, the Non-Competition Period will be extended by the number of months you were in violation of this Paragraph 2(b) and you shall\nhave no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of less than 2% of any class of\nsecurities of a public company shall not violate this Section 2(b).\nIf you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay™),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\nIf you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\nIf you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\nFor purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\nIn order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision.\n(h)\nTo the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\nNotwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\nIf you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\nIntellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\nSeverability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\nWaiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\nEntire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n \nAt-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\nNothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nYou must sign and return this Agreement by June 6, 2008, if you wish to receive your 2008 increase, your 2008 restricted stock grant, be\neligible to participate in the Restricted Cash Feature under the AMIP Plan, and be eligible for the payments described in paragraph 2(c), 2(d) and\n2(e) above.\nANN TAYLOR: ASSOCIATE:\nBY: /s/Mark G. Morrison /s/ Brian Lynch\nMark G. Morrison Brian Lynch\nExecutive Vice President, Human Resources President, Ann Taylor Factory\nDate: 6/9/08 Date: 6/9/08	EX-10.5 6 lex105.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.5\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the "Company"), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your 2008 salary increase, your 2008 restricted stock grant,\nyour\nbecoming\neligible to participate in the Restricted Cash Feature under the AMIP Plan, the Restructuring Program Bonus and the payments\ndescribed in Paragraph 2 below, benefits that you will not be eligible for if you do not sign this Agreement, and in recognition of the highly\ncompetitive nature of the Company's business, you agree as follows:\n1.\nProtection of Confidential Information.\n(a)\nYou acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i)\nexcept in compliance with legal process, you will keep secret all Confidentia Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany's standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii)\nyou will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c)\nFor purposes of this Agreement, "Confidential Information" refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2.\nNon-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the "Non-Solicitation Period"), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b)\nDuring your employment and for a period of 12 months after your separation from the Company for any reason\nwhatsoever, whether voluntary or involuntary (the "Non-Competition Period"), you shall not, directly or indirectly, without the prior written\nconsent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the efforts (as an employee, owner,\nstockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor (as defined herein) of the\nCompany at the time of termination. As used herein, "Competitor" means a business or other entity engaged in the manufacture, design and/or\nsale of women's apparel in the United States. Should you violate this provision, in addition to the other remedies the Company may pursue\nhereunder, the Non-Competition Period will be extended by the number of months you were in violation of this Paragraph 2(b) and you shall\nhave no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of less than 2% of any class of\nsecurities of a public company shall not violate this Section 2(b).\n(c)\nIf you are terminated by the Company without cause (as defined Paragraph 2(f) below, "Cause") or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 ("Separation Pay"),\npayable in substantially equal installments in accordance with the Company's regular payroll cycle, and you will continue to receive all\nbenefits under the Company's medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou\nwritten\nnotice\nof\nthe\nwaiver\nor\nthe\nshortened\nNon-Competition\nPeriod\nwithin\n10\nbusiness\ndays\nof\nyour\nresignation,\nin\nwhich\ncase\n(i)\nyou\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour\nbenefits\nif\nit\nwaives\nthe\nprovisions\nof\nParagraph\n2(b)\nabove\nor\nif\nthe\nCompany\nshortens\nthe\nNon-Competition\nPeriod\npursuant\nto\nthis\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\n(d)\nIf you are terminated by the Company without Cause and have never been a "Section 162(m) Employee" (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n("AMIP") (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become "covered employees" within the meaning of Section 162(m) ("Section\n162(m) Employee") of the Internal Revenue Code of 1986, as amended (the "Code"), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e)\nIf you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f)\nFor purposes of this Agreement, "Cause" shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable\nwritten\ndirections\nof\nthe\nCEO,\nwhich\ndoes\nnot\ncease\nwithin\nten\nbusiness\ndays\nafter\nsuch\nwritten\nnotice\nregarding\nsuch\nrefusal\nhas\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g)\nIn order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision.\n(h)\nTo the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i)\nNotwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall\nof\nyour\nrights\nhereunder\nto\nany\nfuture\npayments\nor\nbenefits\nas\ndescribed\nin\nParagraphs\n2(c),\n2(d)\nand\n2(e)\nabove,\nand\nall\nrights\nwith\nrespect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company's 2003 Equity Incentive Plan).\n3.\nIf you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property.. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company's business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5.\nSeverability. & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6.\nWaiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7.\nEntire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n8.\nAt-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n"at-will" which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9.\nNothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys' fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nYou must sign and return this Agreement by June 6, 2008, if you wish to receive your 2008 increase, your 2008 restricted stock grant, be\neligible to participate in the Restricted Cash Feature under the AMIP Plan, and be eligible for the payments described in paragraph 2(c), 2(d) and\n2(e) above.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Brian Lynch\nMark G. Morrison\nBrian Lynch\nExecutive Vice President, Human Resources\nPresident, Ann Taylor Factory\nDate: 6/9/08\nDate: 6/9/08	EX-10.5 6 dex105.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.5\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON -COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your 2008 salary increase, your 2008 restricted stock grant,\nyour becoming eligible to participate in the Restricted Cash Feature under the AMIP Plan, the Restructuring Program Bonus and the payments\ndescribed in Paragraph 2 below, benefits that you will not be eligible for if you do not sign this Agreement, and in recognition of the highly\ncompetitive nature of the Company’s business, you agree as follows:\n1. Protection of Confidential Information.\n(a) You acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c) For purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason\nwhatsoever, whether voluntary or involuntary (the “Non-Competition Period”), you shall not, directly or indirectly, without the prior written\nconsent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the efforts (as an employee, owner,\nstockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor (as defined herein) of the\nCompany at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the manufacture, design and/or\nsale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies the Company may pursue\nhereunder, the Non-Competition Period will be extended by the number of months you were in violation of this Paragraph 2(b) and you shall\nhave no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of less than 2% of any class of\nsecurities of a public company shall not violate this Section 2(b).\n(c) If you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay”),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\n(d) If you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e) If you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f) For purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g) In order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision.\n(h) To the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\n3. If you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5. Severability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6. Waiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7. Entire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n8. At-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9. Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nYou must sign and return this Agreement by June 6, 2008, if you wish to receive your 2008 increase, your 2008 restricted stock grant, be\neligible to participate in the Restricted Cash Feature under the AMIP Plan, and be eligible for the payments described in paragraph 2(c), 2(d) and\n2(e) above.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Brian Lynch\nMark G. Morrison\nBrian Lynch\nExecutive Vice President, Human Resources\nPresident, Ann Taylor Factory\nDate: 6/9/08\nDate: 6/9/08
3504e06a49433c1456720513186da1bd.pdf	effective_date jurisdiction party term	EX-10.8 18 g20786exv10w8.htm EX-10.8\nExhibit 10.8\n(ANSON LOGO)\nClient Confidentiality & Non-Disclosure Agreement\nThis Agreement by and between TechniScan Medical Systems, Inc. (hereinafter referred to as “Client”) and The Anson Group, LLC (hereinafter\nreferred to as “Anson”), shall govern the conditions of disclosure of confidential information relating to Client’s business (“the Information”).\nThe Information includes all oral and written information, regardless of medium, disclosed to Anson by Client that is labeled or otherwise\nidentified as confidential.\nWith regard to the Information, Anson hereby agrees:\n1. Not to use the Information except for the sole purpose of providing consulting services requested by Client.\n2. To safeguard the Information against disclosure to others with the same degree of care as it exercises with its own information of a similar\nnature; and\n3. Not to disclose the Information to others (except to its employees, agents or consultants who are bound to Anson by a like obligation of\nconfidentiality) without the express written permission of Client, except that Anson shall not be prevented from using or disclosing any of\nthe Information:\na) Which Anson can demonstrate by written records was previously known to it;\nb) Which is now, or becomes in the future, public knowledge other than through acts or omissions of Anson;\nc) Which is lawfully obtained by Anson from sources independent of Client; or\nd) Which Anson is required by law to disclose.\nAnson agrees to provide prompt written notice to Client of any legal requests or compulsion to disclose the Information, and to make only such\ndisclosures as are legally required.\nAnson agrees to return or destroy all documents or other materials provided by Client that constitute the Information, without retaining any\ncopies or extracts thereof, upon request by Client.\nNON-DISCLOSURE AGREEMENT\nPAGE 1\nTechniScan Medical Systems, Inc.\nAnson agrees that the furnishing of the Information to Anson shall not constitute a grant of license to Anson under any legal rights now or\nhereinafter held by Client.\nThis Agreement and all actions related hereto shall be governed by and construed in accordance with the laws (other than the conflict of laws\nrules) of the United States and the State of Indiana.\nThe rights and obligations herein shall bind the Parties and their respective legal representatives, successors, heirs and assigns.\nThis Agreement expresses the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior\nagreements, commitments and understandings, whether written or oral, with respect to such subject matter. Any modifications of, or changes to,\nthis Agreement shall be in writing and signed by each of the Parties.\nThis Agreement shall terminate upon the termination of the General Consulting Agreement between the parties dated January 5, 2006, provided,\nhowever, that the secrecy and non-use obligations of Anson herein shall remain in effect for three (3) years from the date of termination.\nThe Anson Group, LLC\nTechniScan Medical Systems, Inc.\n(SIGNATURE)\nNON-DISCLOSURE AGREEMENT\nPAGE 2\nTechniScan Medical Systems, Inc.	EX-10.8 18 g20786exv10w8.htm EX-10.8\nExhibit 10.8\nl#(ANSON LOGO)\nClient Confidentiality & Non-Disclosure Agreement\nThis Agreement by and between TechniScan Medical Systems, Inc. (hereinafter referred to as “Client”) and The Anson Group, LLC (hereinafter\nreferred to as “Anson”), shall govern the conditions of disclosure of confidential information relating to Client’s business (“the Information”).\nThe Information includes all oral and written information, regardless of medium, disclosed to Anson by Client that is labeled or otherwise\nidentified as confidential.\nWith regard to the Information, Anson hereby agrees:\n1. Not to use the Information except for the sole purpose of providing consulting services requested by Client.\n2. To safeguard the Information against disclosure to others with the same degree of care as it exercises with its own information of a similar\nnature; and\n3. Not to disclose the Information to others (except to its employees, agents or consultants who are bound to Anson by a like obligation of\nconfidentiality) without the express written permission of Client, except that Anson shall not be prevented from using or disclosing any of\nthe Information:\na)  Which Anson can demonstrate by written records was previously known to it;\nb)  Which is now, or becomes in the future, public knowledge other than through acts or omissions of Anson;\nc)  Which is lawfully obtained by Anson from sources independent of Client; or\nd) Which Anson is required by law to disclose.\nAnson agrees to provide prompt written notice to Client of any legal requests or compulsion to disclose the Information, and to make only such\ndisclosures as are legally required.\nAnson agrees to return or destroy all documents or other materials provided by Client that constitute the Information, without retaining any\ncopies or extracts thereof, upon request by Client.\nNON-DISCLOSURE AGREEMENT PAGE 1\nTechniScan Medical Systems, Inc.\nAnson agrees that the furnishing of the Information to Anson shall not constitute a grant of license to Anson under any legal rights now or\nhereinafter held by Client.\nThis Agreement and all actions related hereto shall be governed by and construed in accordance with the laws (other than the conflict of laws\nrules) of the United States and the State of Indiana.\nThe rights and obligations herein shall bind the Parties and their respective legal representatives, successors, heirs and assigns.\nThis Agreement expresses the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior\nagreements, commitments and understandings, whether written or oral, with respect to such subject matter. Any modifications of, or changes to,\nthis Agreement shall be in writing and signed by each of the Parties.\nThis Agreement shall terminate upon the termination of the General Consulting Agreement between the parties dated January 5, 2006, provided,\nhowever, that the secrecy and non-use obligations of Anson herein shall remain in effect for three (3) years from the date of termination.\nThe Anson Group, LLC TechniScan Medical Systems, Inc.\n|#(SIGNATURE)\nNON-DISCLOSURE AGREEMENT PAGE 2\nTechniScan Medical Systems, Inc.	EX-10.8 18 g20786exv10w8.htm EX-10.8\nExhibit 10.8\n(ANSON LOGO)\nClient Confidentiality & Non-Disclosure Agreement\nThis Agreement by and between TechniScan Medical Systems, Inc. (hereinafter referred to as "Client") and The Anson Group, LLC (hereinafter\nreferred to as "Anson"), shall govern the conditions of disclosure of confidential information relating to Client's business ("the Information").\nThe Information includes all oral and written information, regardless of medium, disclosed to Anson by Client that is labeled or otherwise\nidentified as confidential.\nWith regard to the Information, Anson hereby agrees:\n1.\nNot to use the Information except for the sole purpose of providing consulting services requested by Client.\n2.\nTo safeguard the Information against disclosure to others with the same degree of care as it exercises with its own information of a similar\nnature; and\n3.\nNot to disclose the Information to others (except to its employees, agents or consultants who are bound to Anson by a like obligation of\nconfidentiality) without the express written permission of Client, except that Anson shall not be prevented from using or disclosing any of\nthe Information:\na)\nWhich Anson can demonstrate by written records was previously known to it;\nb)\nWhich is now, or becomes in the future, public knowledge other than through acts or omissions of Anson;\nc) Which is lawfully obtained by Anson from sources independent of Client; or\nd)\nWhich Anson is required by law to disclose.\nAnson agrees to provide prompt written notice to Client of any legal requests or compulsion to disclose the Information, and to make only such\ndisclosures as are legally required.\nAnson agrees to return or destroy all documents or other materials provided by Client that constitute the Information, without retaining any\ncopies or extracts thereof, upon request by Client.\nNON-DISCLOSURE AGREEMENT\nPAGE 1\nTechniScan Medical Systems, Inc.\nAnson agrees that the furnishing of the Information to Anson shall not constitute a grant of license to Anson under any legal rights now or\nhereinafter held by Client.\nThis Agreement and all actions related hereto shall be governed by and construed in accordance with the laws (other than the conflict of laws\nrules) of the United States and the State of Indiana.\nThe rights and obligations herein shall bind the Parties and their respective legal representatives, successors, heirs and assigns.\nThis Agreement expresses the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior\nagreements, commitments and understandings, whether written or oral, with respect to such subject matter. Any modifications of, or changes to,\nthis Agreement shall be in writing and signed by each of the Parties.\nThis Agreement shall terminate upon the termination of the General Consulting Agreement between the parties dated January 5, 2006, provided,\nhowever, that the secrecy and non-use obligations of Anson herein shall remain in effect for three (3) years from the date of termination.\nThe Anson Group, LLC\nTechniScan Medical Systems, Inc.\n(SIGNATURE)\nNON-DISCLOSURE AGREEMENT\nPAGE 2\nTechniScan Medical Systems, Inc.	EX-10.8 18 g20786exv10w8.htm EX-10.8\nExhibit 10.8\n(ANSON LOGO)\nClient Confidentiality & Non-Disclosure Agreement\nThis Agreement by and between TechniScan Medical Systems, Inc. (hereinafter referred to as “Client”) and The Anson Group, LLC (hereinafter\nreferred to as “Anson”), shall govern the conditions of disclosure of confidential information relating to Client’s business (“the Information”).\nThe Information includes all oral and written information, regardless of medium, disclosed to Anson by Client that is labeled or otherwise\nidentified as confidential.\nWith regard to the Information, Anson hereby agrees:\n1. Not to use the Information except for the sole purpose of providing consulting services requested by Client.\n2. To safeguard the Information against disclosure to others with the same degree of care as it exercises with its own information of a similar\nnature; and\n3. Not to disclose the Information to others (except to its employees, agents or consultants who are bound to Anson by a like obligation of\nconfidentiality) without the express written permission of Client, except that Anson shall not be prevented from using or disclosing any of\nthe Information:\na) Which Anson can demonstrate by written records was previously known to it;\nb) Which is now, or becomes in the future, public knowledge other than through acts or omissions of Anson;\nc) Which is lawfully obtained by Anson from sources independent of Client; or\nd) Which Anson is required by law to disclose.\nAnson agrees to provide prompt written notice to Client of any legal requests or compulsion to disclose the Information, and to make only such\ndisclosures as are legally required.\nAnson agrees to return or destroy all documents or other materials provided by Client that constitute the Information, without retaining any\ncopies or extracts thereof, upon request by Client.\nNON-DISCLOSURE AGREEMENT\nPAGE 1\nTechniScan Medical Systems, Inc.\nAnson agrees that the furnishing of the Information to Anson shall not constitute a grant of license to Anson under any legal rights now or\nhereinafter held by Client.\nThis Agreement and all actions related hereto shall be governed by and construed in accordance with the laws (other than the conflict of laws\nrules) of the United States and the State of Indiana.\nThe rights and obligations herein shall bind the Parties and their respective legal representatives, successors, heirs and assigns.\nThis Agreement expresses the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior\nagreements, commitments and understandings, whether written or oral, with respect to such subject matter. Any modifications of, or changes to,\nthis Agreement shall be in writing and signed by each of the Parties.\nThis Agreement shall terminate upon the termination of the General Consulting Agreement between the parties dated January 5, 2006, provided,\nhowever, that the secrecy and non-use obligations of Anson herein shall remain in effect for three (3) years from the date of termination.\nThe Anson Group, LLC\nTechniScan Medical Systems, Inc.\n(SIGNATURE)\nNON-DISCLOSURE AGREEMENT\nPAGE 2\nTechniScan Medical Systems, Inc.
3525bcfe006326a6b43dc0974d5185df.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 12 d454990dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 7, 2012\nJAB Beech Inc.\n2200 Pennsylvania Avenue, NW\nWashington, DC 20052\nNon-Disclosure Agreement\nLadies and Gentlemen:\nIn connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation\n(the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning\nitself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the\nstockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source\nthat the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed\n(collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or\notherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on\nbehalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter\nagreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.\n1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been\npublicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or\ninvestments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent\ncontaining, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term\n“Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of\nthis Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller,\nprovided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement\nwith (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such\ninformation, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this\nAgreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such\nsource is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.\n2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing,\nevaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that\nany other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly\nconfidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the\nprovisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material\nfor purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the\nmaterial terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of\nfinancing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any\nunauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material\nthan are reasonably necessary to perform the Evaluation.\n3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees\nthat, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any\nEvaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the\nterms, conditions or other facts with respect thereto.\n4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your Representatives are requested or required by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar\nprocess or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your\nsecurities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party or any of its Representatives are requested or\nrequired by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or\nother similar process or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on\nwhich its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall\nprovide the other party with prompt notice of any such request or requirement so that such other party may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first\nsentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability\nhereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place,\nwhich its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the\nconfidentiality of the Evaluation Material and the discussions taking place, including, without limitation, by cooperating with the other party to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded thereto by any third party to\nwhich disclosure is made.\n5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental\ninvestigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in\nthis Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege.\n6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws\non the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any\naffiliate thereof and on the communication of such information to any other person when it is reasonably foreseeable that such other person is\nlikely to purchase or sell such securities in reliance on such information for so long as the information remains material and non-public and\nagree to comply with such securities laws.\n7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which\ndiscussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries\napproves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar\nbusiness combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of\nsuch agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following\nsuch Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable,\nthe ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity\nsurviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that\ncontemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities\nby Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the\ndate on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which\nthe parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in\nany manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way\nassist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of\nbeneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive\ninvestment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller); (2) any tender or\nexchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Seller; or (4) any\n2\n-\nsolicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with respect to any securities\nof the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nthe Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the\ntypes of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the\nforegoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in\nthis Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or\notherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in\neach case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your\nRepresentatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and\nwarrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of\nthe Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates\nof up to an aggregate of 1% of such securities).\n8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time,\n(ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole\ndiscretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party,\nand (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not\nwish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of\nthe Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you\nor your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that\n(i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation\nMaterial which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that\nneither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside\nlegal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with\nany disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your\nRepresentatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies\nof the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law,\nregulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material).\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your\nobligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.\n9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date\nhereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain\nemployed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation\nthat is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such\nemployment without any direct or indirect solicitation by you.\n10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your\nRepresentatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n11. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will\ninitiate or cause to be initiated any communication with any director, officer or employee of the Seller\n3\n-\n-\n-\nconcerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the\nChairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as\nhaving knowledge of a Possible Transaction.\n13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller,\nwhich harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for\ninjunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a\nhardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific\nperformance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to\nreimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights\nunder this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.\n14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of\nthe remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be\nrestated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.\n15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither\nthe Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement,\nexcept for matters specifically agreed to herein.\n16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation\nthe right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the\noutstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to\nassign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that\nyou may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of\nthis Agreement shall be null and void ab initio.\n17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without\ngiving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In\nany dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and\nsubmits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process\nby first class certified mail, return receipt requested, postage prepaid.\n18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE\nFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING\nOUT OF OR RELATED TO THIS AGREEMENT.\n19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no\nmodification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in\nwriting by each such party.\n20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall\nbe deemed to be their original signatures for purpose of this Agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between you and the Seller.\n4\nVery truly yours,\nCaribou Coffee Company, Inc.\nBy: /s/ Dan E. Lee\nName: Dan E. Lee\nIts: S.V.P, General Counsel & Secretary\nAccepted and agreed to as of\nthe date first written above:\nJAB Beech Inc.\nBy: /s/ Joachim Creus\nName: Joachim Creus\nIts: President\n5	EX-99.(D)(2) 12 d454990dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 7, 2012\nJAB Beech Inc.\n2200 Pennsylvania Avenue, NW\nWashington, DC 20052\nNon-Disclosure Agreement\nLadies and Gentlemen:\nIn connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation\n(the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning\nitself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the\nstockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source\nthat the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed\n(collectively, “Representatives™), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or\notherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on\nbehalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter\nagreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.\n1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been\npublicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or\ninvestments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent\ncontaining, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term\n“Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of\nthis Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller,\nprovided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement\nwith (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such\ninformation, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this\nAgreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such\nsource is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.\n2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing,\nevaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that\nany other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly\nconfidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the\nprovisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material\nfor purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the\nmaterial terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of\nfinancing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any\nunauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material\nthan are reasonably necessary to perform the Evaluation.\n3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees\nthat, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any\nEvaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the\nterms, conditions or other facts with respect thereto.\nRequired Disclosure of Evaluation Material. In the event that (i) you or any of your Representatives are requested or required by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar\nprocess or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your\nsecurities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party or any of its Representatives are requested or\nrequired by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or\nother similar process or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on\nwhich its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall\nprovide the other party with prompt notice of any such request or requirement so that such other party may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first\nsentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability\nhereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place,\nwhich its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the\nconfidentiality of the Evaluation Material and the discussions taking place, including, without limitation, by cooperating with the other party to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded thereto by any third party to\nwhich disclosure is made.\nPrivileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental\ninvestigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in\nthis Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege.\nCompliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws\non the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any\naffiliate thereof and on the communication of such information to any other person when it is reasonably foreseeable that such other person is\nlikely to purchase or sell such securities in reliance on such information for so long as the information remains material and non-public and\nagree to comply with such securities laws.\nStandstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which\ndiscussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries\napproves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar\nbusiness combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of\nsuch agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following\nsuch Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable,\nthe ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity\nsurviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that\ncontemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities\nby Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the\ndate on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which\nthe parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in\nany manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way\nassist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of\nbeneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive\ninvestment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller); (2) any tender or\nexchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Seller; or (4) any -\n2\n10. 11. 12. solicitation- of “proxies- (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of the Seller; (b) form, join or in any way participate in a “group- (as defined under the Exchange Act) with respect to any securities\nof the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nthe Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the\ntypes of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the\nforegoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in\nthis Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or\notherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in\neach case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your\nRepresentatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and\nwarrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of\nthe Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates\nof up to an aggregate of 1% of such securities).\nTermination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time,\n(ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole\ndiscretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party,\nand (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not\nwish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of\nthe Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you\nor your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that\n(i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation\nMaterial which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that\nneither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside\nlegal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with\nany disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your\nRepresentatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies\nof the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law,\nregulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material).\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your\nobligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.\nNon-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date\nhereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain\nemployed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation\nthat is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such\nemployment without any direct or indirect solicitation by you.\nNo Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your\nRepresentatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nWaiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\nContacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will\ninitiate or cause to be initiated any communication with any director, officer or employee of the Seller\n3\n13. 14. 15. 16. 17. 18. 19. 20. concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the\nChairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as\nhaving knowledge of a Possible Transaction.\nRemedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller,\nwhich harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for\ninjunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a\nhardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific\nperformance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to\nreimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights\nunder this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.\nSeverability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of\nthe remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be\nrestated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.\nNo Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither\nthe Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement,\nexcept for matters specifically agreed to herein.\n \nAssignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation\nthe right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the\noutstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to\nassign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that\nyou may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of\nthis Agreement shall be null and void ab initio.\nGoverning Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without\ngiving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In\nany dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and\nsubmits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process\nby first class certified mail, return receipt requested, postage prepaid.\nWaiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE\nFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING\nOUT OF OR RELATED TO THIS AGREEMENT.\nEntire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no\nmodification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in\nwriting by each such party.\nCounterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall\nbe deemed to be their original signatures for purpose of this Agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between you and the Seller.\n4\nAccepted and agreed to as of\nthe date first written above:\nJAB Beech Inc.\nBy: /s/ Joachim Creus\nName: Joachim Creus\nIts: President\nVery truly yours,\nCaribou Coffee Company, Inc.\nBy: /s/ DanE. Lee\nName: Dan E. Lee\nIts: S.V.P, General Counsel & Secretary	EX-99.(D)(2) 12 d454990dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 7, 2012\nJAB Beech Inc.\n2200 Pennsylvania Avenue, NW\nWashington, DC 20052\nNon-Disclosure Agreement\nLadies and Gentlemen:\nIn connection with a possible negotiated transaction (the "Possible Transaction") with Caribou Coffee Company, Inc., a Minnesota corporation\n(the "Seller"), the Seller expects to make available to JAB Beech Inc. ("you" or, together with Seller, the "parties") certain information concerning\nitself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the\nstockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source\nthat\nthe\nSeller\napproves\nto\nbe\nincluded\nas\na\nRepresentative,\nsuch\napproval\nof\nthe\nSeller\nnot\nto\nbe\nunreasonably\nwithheld,\nconditioned\nor\ndelayed\n(collectively, "Representatives"), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or\notherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on\nbehalf of the Seller (herein collectively referred to as the "Evaluation Material") in accordance with, and subject to, the provisions of this letter\nagreement (this "Agreement"), and to take or abstain from taking certain other actions hereinafter set forth.\n1.\nEvaluation Material. The term "Evaluation Material" shall include information (including historical financial information that has not been\npublicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or\ninvestments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent\ncontaining,\nin\nwhole\nor\nin\npart,\nthe\ninformation\nfurnished\nto\nyou\nor\nyour\nRepresentatives\nby\nor\non\nbehalf\nof\nthe\nSeller,\nprovided,\nthat\nthe\nterm\n"Evaluation Material" does not include information which (1) is or becomes generally available to the public other than as result of a breach of\nthis Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller,\nprovided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement\nwith (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such\ninformation, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this\nAgreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such\nsource is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.\n2.\nUse of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing,\nevaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the "Evaluation") and that\nany other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly\nconfidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the\nprovisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material\nfor purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the\nmaterial terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of\nfinancing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any\nunauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material\nthan are reasonably necessary to perform the Evaluation.\n3.\nNon-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees\nthat, without the other party's prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any\nEvaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the\nterms, conditions or other facts with respect thereto.\n4.\nRequired Disclosure of Evaluation Material. In the event that (i) you or any of your Representatives are requested or required by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar\nprocess or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your\nsecurities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party or any of its Representatives are requested or\nrequired by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or\nother similar process or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on\nwhich its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall\nprovide the other party with prompt notice of any such request or requirement so that such other party may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first\nsentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability\nhereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place,\nwhich its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the\nconfidentiality of the Evaluation Material and the discussions taking place, including, without limitation, by cooperating with the other party to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded thereto by any third party to\nwhich disclosure is made.\n5.\nPrivileged\nInformation.\nTo\nthe\nextent\nthat\nany\nEvaluation\nMaterial\nmay\ninclude\nmaterial\nor\ninformation\nthat\nis\nsubject\nto\nthe\nattorney-client\nprivilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental\ninvestigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in\nthis Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege.\n6.\nCompliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws\non the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any\naffiliate thereof and on the communication of such information to any other person when it is reasonably foreseeable that such other person\nis\nlikely to purchase or sell such securities in reliance on such information for so long as the information remains material and non-public and\nagree to comply with such securities laws.\n7.\nStandstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which\ndiscussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries\napproves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar\nbusiness combination, (each, a "Merger"), unless it can be determined based on publicly available information at the time of announcement of\nsuch agreement that such Merger would result in the Seller's stockholders immediately prior to the Merger holding, immediately following\nsuch Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable,\nthe ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity\nsurviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that\ncontemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities\nby Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a "Change of Control Event"), (iv) the\ndate on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which\nthe parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in\nany manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way\nassist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of\nbeneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive\ninvestment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller); (2) any tender or\nexchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Seller; or (4) any\n2\nsolicitation- of "proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of the Seller; (b) form, join or in any way participate in a "group (as defined under the Exchange Act) with respect to any securities\nof the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nthe Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the\ntypes of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the\nforegoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in\nthis Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or\notherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in\neach case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your\nRepresentatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and\nwarrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of\nthe Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates\nof up to an aggregate of 1% of such securities).\n8.\nTermination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time,\n(ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole\ndiscretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party,\nand\n(b)\nyou\nshall\nhave\nno\nclaim\nagainst\nthe\nSeller\nor\nits\nRepresentatives\nin\nconnection\nwith\nany\nof\nthe\nforegoing.\nIf\nyou\ndecide\nthat\nyou\ndo\nnot\nwish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of\nthe Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you\nor your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that\n(i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation\nMaterial which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that\nneither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside\nlegal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with\nany disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your\nRepresentatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies\nof the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law,\nregulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material).\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your\nobligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.\n9.\nNon-Solicitation.\nIn\nconsideration\nof\nthe\nEvaluation\nMaterial\nbeing\nfurnished\nto\nyou,\nyou\nagree\nthat\nfor\na\nperiod\nof\ntwo\nyears\nfrom\nthe\ndate\nhereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain\nemployed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation\nthat is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such\nemployment without any direct or indirect solicitation by you.\n10. No Representation of Accuracy.. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your\nRepresentatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n11.\nWaiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will\ninitiate or cause to be initiated any communication with any director, officer or employee of the Seller\n3\nconcerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the\nChairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as\nhaving knowledge of a Possible Transaction.\n13.\nRemedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller,\nwhich harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance\nor\nfor\ninjunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a\nhardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific\nperformance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to\nreimburse the Seller for all costs and expenses (including, without limitation, attorney's fees and expenses) of enforcing the Seller's rights\nunder this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.\n14.\nSeverability.. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of\nthe remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be\nrestated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.\n15.\nNo Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither\nthe Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement,\nexcept for matters specifically agreed to herein.\n16.\nAssignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation\nthe right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the\noutstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to\nassign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that\nyou may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of\nthis Agreement shall be null and void ab initio.\n17.\nGoverning Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without\ngiving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction In\nany dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and\nsubmits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process\nby first class certified mail, return receipt requested, postage prepaid.\n18. Waiver of ry Trial EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE\nFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT' TO TRIAL BY JURY IN ANY ACTION ARISING\nOUT OF OR RELATED TO THIS AGREEMENT.\n19.\nEntire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no\nmodification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in\nwriting by each such party.\n20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall\nbe deemed to be their origina signatures for purpose of this Agreement\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between you and the Seller.\n4\nVery truly yours,\nCaribou Coffee Company, Inc.\nBy: /s/ Dan E. Lee\nName: Dan E. Lee\nIts: S.V.P, General Counsel & Secretary\nAccepted and agreed to as of\nthe date first written above:\nJAB Beech Inc.\nBy: /s/ Joachim Creus\nName: Joachim Creus\nIts: President\n5	EX-99.(D)(2) 12 d454990dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 7, 2012\nJAB Beech Inc.\n2200 Pennsylvania Avenue, NW\nWashington, DC 20052\nNon-Disclosure Agreement\nLadies and Gentlemen:\nIn connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation\n(the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning\nitself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the\nstockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source\nthat the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed\n(collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or\notherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on\nbehalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter\nagreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.\n1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been\npublicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or\ninvestments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent\ncontaining, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term\n“Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of\nthis Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller,\nprovided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement\nwith (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such\ninformation, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this\nAgreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such\nsource is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.\n2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing,\nevaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that\nany other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly\nconfidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the\nprovisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material\nfor purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the\nmaterial terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of\nfinancing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any\nunauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material\nthan are reasonably necessary to perform the Evaluation.\n3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees\nthat, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any\nEvaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the\nterms, conditions or other facts with respect thereto.\n4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your Representatives are requested or required by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar\nprocess or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your\nsecurities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party or any of its Representatives are requested or\nrequired by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or\nother similar process or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on\nwhich its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall\nprovide the other party with prompt notice of any such request or requirement so that such other party may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first\nsentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability\nhereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place,\nwhich its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the\nconfidentiality of the Evaluation Material and the discussions taking place, including, without limitation, by cooperating with the other party to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded thereto by any third party to\nwhich disclosure is made.\n5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental\ninvestigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in\nthis Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege.\n6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws\non the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any\naffiliate thereof and on the communication of such information to any other person when it is reasonably foreseeable that such other person is\nlikely to purchase or sell such securities in reliance on such information for so long as the information remains material and non-public and\nagree to comply with such securities laws.\n7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which\ndiscussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries\napproves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar\nbusiness combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of\nsuch agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following\nsuch Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable,\nthe ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity\nsurviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that\ncontemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities\nby Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the\ndate on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which\nthe parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in\nany manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way\nassist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of\nbeneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive\ninvestment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller); (2) any tender or\nexchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Seller; or (4) any\n2\n-\nsolicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with respect to any securities\nof the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nthe Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the\ntypes of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the\nforegoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in\nthis Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or\notherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in\neach case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your\nRepresentatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and\nwarrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of\nthe Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates\nof up to an aggregate of 1% of such securities).\n8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time,\n(ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole\ndiscretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party,\nand (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not\nwish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of\nthe Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you\nor your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that\n(i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation\nMaterial which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that\nneither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside\nlegal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with\nany disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your\nRepresentatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies\nof the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law,\nregulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material).\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your\nobligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.\n9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date\nhereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain\nemployed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation\nthat is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such\nemployment without any direct or indirect solicitation by you.\n10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your\nRepresentatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n11. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will\ninitiate or cause to be initiated any communication with any director, officer or employee of the Seller\n3\n-\n-\n-\nconcerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the\nChairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as\nhaving knowledge of a Possible Transaction.\n13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller,\nwhich harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for\ninjunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a\nhardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific\nperformance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to\nreimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights\nunder this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.\n14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of\nthe remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be\nrestated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.\n15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither\nthe Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement,\nexcept for matters specifically agreed to herein.\n16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation\nthe right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the\noutstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to\nassign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that\nyou may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of\nthis Agreement shall be null and void ab initio.\n17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without\ngiving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In\nany dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and\nsubmits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process\nby first class certified mail, return receipt requested, postage prepaid.\n18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE\nFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING\nOUT OF OR RELATED TO THIS AGREEMENT.\n19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no\nmodification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in\nwriting by each such party.\n20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall\nbe deemed to be their original signatures for purpose of this Agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between you and the Seller.\n4\nVery truly yours,\nCaribou Coffee Company, Inc.\nBy: /s/ Dan E. Lee\nName: Dan E. Lee\nIts: S.V.P, General Counsel & Secretary\nAccepted and agreed to as of\nthe date first written above:\nJAB Beech Inc.\nBy: /s/ Joachim Creus\nName: Joachim Creus\nIts: President\n5
366cab741b217eb6d2181c0292c989a7.pdf	jurisdiction party	EX-2.1 3 j1336_ex2d1.htm EX-2.1\nExhibit G\nForm of Non-Competition, Non-Solicitation and Confidentiality Agreement\nNon-Competition, Non-Solicitation\nand\nConfidentiality Agreement\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement (“Agreement”) has been executed and delivered as of the ___ day of ___________________ , by ___________________ ( “Larger\nShareholder”) , for the benefit of Rural Cellular Corporation, a Minnesota corporation, ( “RCC ”) and its subsidiaries, including, but not limited to Saco River Telegraph and Telephone Company, a Maine corporation\n(“SRTT ”) .\nRECITALS:\nA.\nSRTT, certain stockholders of SRTT, including the Larger Stockholder and Rural Cellular Corporation, a Minnesota corporation (“RCC ”) entered into an Agreement and Plan of Merger\n(the “Merger Agreement”) dated as of June __ , 2000 which provides for the acquisition by a wholly owned subsidiary of RCC (or one of RCC’s subsidiaries) all of the issued and\noutstanding capital stock of SRTT; and\nB.\nUnless otherwise defined in this Agreement, capitalized terms used but not defined shall have the same definition as ascribed to such terms in the Merger Agreement; and\nC.\nAs a material inducement to RCC to acquire, through merger, SRTT , and in consideration of the terms and conditions contained in the Merger Agreement and other good and valuable\nconsideration, the Larger Stockholder has agreed to enter into this Agreement as a condition of consummating the transaction contemplated by the Merger Agreement.\nNOW, THEREFORE , in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees as follows:\n1.\nRestrictive Covenant. Larger Stockholder agrees that for a period of one (1) year from and after the date of this Agreement (“Restricted Period”) (which period shall be extended as\nappropriate for any period(s) of time that the Larger Stockholder is in breach of the restrictive covenants set forth herein), he/she/it will not, directly or indirectly, own (except for ownership of less than\nthree percent (3%) of the aggregate securities of any class of publicly traded securities of any Person), participate in (whether as a partner, shareholder, principal, member, officer, director, agent,\ntrustee, consultant, lender, employee or in any other relationship or capacity), operate, manage, or work for any Person that engages in the operation or ownership of any of the following businesses\nlocated in Maine, New Hampshire or within two hundred fifty (250) miles thereof: (A) any local exchange carrier or other wireline telecommunications business; (B) any wireless telecommunications\nbusiness, including cellular, personal communication services, microwave or other bandwidth; (C) and other communication or data services.\n2.\nNonsolicitation of Employees. The undersigned further agrees that during the Restricted Period the undersigned will not, either alone or in conjunction with any other Person, directly or indirectly,\nsolicit, divert or attempt to solicit or divert any of the employees or agents of RCC or its subsidiaries (including SRTT) to work for or represent any competitor of RCC or its subsidiaries (including SRTT) or for any\nother employment.\n3.\nConfidentiality. The undersigned agrees that all matter of a proprietary or confidential nature, including, but not limited to, financial data, information regarding customers, vendors and pricing\ninformation, which the undersigned has obtained or which the undersigned has made or compiled during or because of the undersigned’s relationship with SRTT shall be the exclusive property of SRTT and shall be\nregarded by the undersigned as of a confidential or proprietary nature. The undersigned will regard and preserve as confidential all such information, will neither disclose, nor supply to any person, firm, or business,\nnor use for the undersigned’s own benefit or business said confidential or proprietary information unless otherwise expressly authorized in writing by RCC.\n4.\nEnforcement.\n(A) The undersigned agrees that the scope of the restrictions contained in this Agreement are reasonable and necessary for the protection of RCC and its subsidiaries (including SRTT). If any court should\nhold that the covenants contained in this Agreement are too broad to be enforced, the undersigned specifically agrees that the court shall not disregard the provisions of this Agreement but shall, instead, enforce\nthose provisions as to such scope as the court deems equitable.\n(B) The undersigned recognizes that RCC and its subsidiaries (including SRTT) will suffer irreparable damage if the undersigned breaches these covenants. The undersigned recognizes that it may be\ndifficult to compute the damage to RCC and its subsidiaries (including SRTT) as a result of any such breach by the undersigned and that, therefore, in addition to any other relief to which it may be entitled, RCC and\nits subsidiaries (including SRTT) shall be entitled to apply to any court of competent jurisdiction for injunctive relief, both temporary and permanent, to restrain any breach, threatened or actual, of any of the restrictive\ncovenants contained herein, and the undersigned hereby consents to the issuance of such injunctive relief without the posting of a bond or other security.\n(C) This Agreement will be governed by the laws of the State of Maine. The undersigned hereby consents to personal jurisdiction by the federal and state courts of the State of Maine in the event of any\ndispute arising hereunder.\n5.\nMiscellaneous.\n(A) The undersigned agrees that this Agreement shall inure to the benefit of RCC and its subsidiaries (including SRTT) and their successors and assigns.\n(B) No waiver or modification of this Agreement or any provision of this Agreement will be effective unless made in writing and executed by both parties hereto.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth in the first paragraph.\n(Larger Shareholder)	EX-2.l 3 j1336_ex2dl.htm EX-2.l\nExhibitG\nForm of Non-Competition, Non-Solicitation and Confidentiality Agreement\nNon-Competition, Non-Solicitation\nand\nConfidentiality Agreement\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement(“Agreement") has been executed and delivered as of the ___ day of\n \n__ ("Larger\nShareholder”), for the benefit of Rural Cellular Corporation, a Minnesota corporation, (“RCC”) and is subsidiaries, including, but not limited to Saco RiverTelegraph and Telephone Company, a Maine corporation\n(”S RTT").\nRECITALS:\nA. SRTT, certain stockholders ofSRTT, including the Larger Stockholder and Rural CellularCorporation, a Minnesota corporation (“RCC”) entered into an Agreementand Plan ofMerger\n(the "M ergerAgreement") dated as of] une __ , 2000 which provides forthe acquisition by a wholly owned subsidiary ofRCC (or one ofRCC's subsidiaries) all of the issued and\noustanding capital stock ofSRTT; and\nB. Unless otherwise defined in this Agreement, capitalized terms used but not defined shall have the same definition as ascribed to such terms in the Merger Agreement; and\nC. As a material inducement to RCC to acquire, through merger, SRTT, and in consideration of the terms and conditions contained in the MergerAgreementand other good and valuable\nconsideration, the Larger Stockholder has agreed to enter into this Agreement as a condition of consummating the transaction contemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees as follows:\n1. Restrictive Covenant. Larger Stockholder agrees that for a period of one (1) year from and after the date ofthis Agreement ("Restricted Period") (which period shall be extended as\nappropriate for any period(s) of time thatthe Larger Stockholder is in breach ofthe restrictive covenans set forth herein), he/she/it will not. directiy or indirectly, own (exceptfor ownership of less than\nthree percent (3%) of the aggregate securities of any class of publicly traded securities of any Person), participate in (whether as a partner, shareholder, principal, member, officer, director, agent,\ntrustee, consultant. lender, employee or in any other relationship or capacity), operate, manage, or work for any Person that engages in the operation or ownership of any of the following businesses\nlocated in Maine, New Hampshire or within two hundred fifty (250) miles thereof: (A) any local exchange carrier or other wireline telecommunications business: (B) any wireless telecommunications\nbusiness, including cellular, personal communication services, microwave or other bandwidth: (C) and other communication or data services.\n2. Nonsolicitation of E mployees. The undersigned further agrees that during the Restricted Period the undersigned will not, either alone or in conjunction with any other Person, directly or indirectly,\nsolicit, divert or attempt to solicit or divert any of the employees or agents of RCC or is subsidiaries (including SRTT) to work for or represent any competitor of RCC or is subsidiaries (including SRTT) or for any\nother employment.\n3. Confidentiality. The undersigned agrees that all matter of a proprietary or confidential nature, including, but not limited to, financial data, information regarding customers, vendors and pricing\ninformation, which the undersigned has obtained or which the undersigned has made or compiled during or because of the undersigned's relationship with SRTT shall be the exclusive property of SRTT and shall be\nregarded by the undersigned as of a confidential or proprietary nature. The undersigned will regard and presen/e as confidential all such information, will neither disclose, nor supply to any person, firm, or business,\nnor use forthe undersigned's own benefit or business said confidential or proprietary information unless otherwise expressly authorized in writing by RCC.\n4. Enforcement.\n(A) The undersigned agrees that the scope of the restrictions contained in this Agreementare reasonable and necessary forthe protection of RCC and its subsidiaries (including SRTT). Ifany court should\nhold that the covenans contained in this Agreement are too broad to be enforced, the undersigned specifically agrees that the court shall not disregard the provisions of this Agreement but shall, instead, enforce\nthose provisions as to such scope as the court deems equitable.\n(B) The undersigned recognizes thatRCC and its subsidiaries (including SRTT) will suffer irreparable damage if the undersigned breaches these covenants. The undersigned recognizes that it may be\ndifficult to compute the damage to RCC and is subsidiaries (including SRTT) as a result ofany such breach by the undersigned and that, therefore, in addition to any other relief to which it may be entitled, RCC and\nis subsidiaries (including SRTT) shall be entitled to apply to any court of competentjurisdiction for injunctive relief, both temporary and permanent, to restrain any breach, threatened or actual, of any of the restrictive\ncovenants contained herein, and the undersigned hereby consents to the issuance ofsuch injunctive relief withoutthe posting ofa bond or other security.\n(C) This Agreement will be governed by the laws of the State of Maine. The undersigned hereby consens to personal jurisdiction by the federal and state courts of the State of Maine in the event ofany\ndispute arising hereunder.\n5. Miscellaneous.\n(A) The undersigned agrees that this Agreement shall inure to the benefit of RCC and is subsidiaries (including SRTT) and their successors and assigns.\n(B) No waiver or modification of this Agreement or any provision of this Agreement will be effective unless made in writing and executed by both parties hereto.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth in the first paragraph.\n(Larger Shareholder)	EX-2.1 j1336 ex2d1.htm EX-2.1\nExhibit G\nForm of Non-Competition, Non-Solicitation and Confidentiality Agreement\nNon-Competition, Non-Solicitation\nand\nConfidentiality Agreement\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement ("Agreement") has been executed and delivered as of the\nday of\nby\n("Larger\nShareholder"), for the benefit of Rural Cellular Corporation, a Minnesota corporation, ("RCC") and its subsidiaries, including, but not limited to Saco River Telegraph and Telephone Company, a Maine corporation\n("SRTT").\nRECITALS:\nA.\nSRTT, certain stockholders of SRTT, including the Larger Stockholder and Rural Cellular Corporation, a Minnesota corporation ("RCC") entered into an Agreement and Plan of Merger\n(the "Merger Agreement") dated as of une 2000 which provides for the acquisition by a wholly owned subsidiary of RCC (or one of RCC's subsidiaries) all of the issued and\noutstanding capital stock of SRTT; and\nB.\nUnless otherwise defined in this Agreement, capitalized terms used but not defined shal have the same definition as ascribed to such terms in the Merger Agreement; and\nC.\nAs a materia inducement to RCC to acquire, through merger, SRTT, and in consideration of the terms and conditions contained in the Merger Agreement and other good and valuable\nconsideration, the Larger Stockholder has agreed to enter into this Agreement as a condition of consummating the transaction contemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees as follows:\n1.\nRestrictive Covenant. Larger Stockholder agrees that for a period of one (1) year from and after the date of this Agreement ("Restricted Period") (which period shall be extended as\nappropriate for any period(s) of time that the Larger Stockholder is in breach of the restrictive covenants set forth herein), he/she/it will not, directly or indirectly, own (except for ownership of less than\nthree percent (3%) of the aggregate securities of any class of publicly traded securities of any Person), participate in (whether as a partner, shareholder, principal, member, officer, director, agent,\ntrustee, consultant, lender, employee or in any other relationship or capacity), operate, manage, or work for any Person that engages in the operation or ownership of any of the following businesses\nlocated in Maine, New Hampshire or within two hundred fifty (250) miles thereof: (A) any local exchange carrier or other wireline elecommunications business; (B) any wireless telecommunications\nbusiness, including cellular, persona communication services, microwave or other bandwidth; (C) and other communication or data services.\n2.\nNonsolicitation of Employees. The undersigned further agrees that during the Restricted Period the undersigned wil not, either alone or in conjunction with any other Person, directly or indirectly,\nsolicit,\ndivert\nor attempt to solicit or divert any of the employees or agents of RCC or its subsidiaries (including SRTT) to work for or represent any competitor of RCC or its subsidiaries (including SRTT) or for any\nother employment.\n3.\nConfidentiality. The undersigned agrees that all matter of a proprietary or confidentia nature, including, but not limited to, financial data, information regarding customers, vendors and pricing\ninformation, which the undersigned has obtained or which the undersigned has made or compiled during or because of the undersigned's relationship with SRTT shal be the exclusive property of SRTT and shall be\nregarded by the undersigned as of a confidential or proprietary nature. The undersigned wil regard and preserve as confidential all such information, wil neither disclose, nor supply to any person firm, or business,\nnor use for the undersigned's own benefit or business said confidential or proprietary information unless otherwise expressly authorized in writing by RCC.\n4.\nEnforcement\n(A) The undersigned agrees that the scope of the restrictions contained in this Agreement are reasonable and necessary for the protection of RCC and its subsidiaries (including SRTT). If any court should\nhold that the covenants contained in this Agreement are too broad to be enforced, the undersigned specifically agrees that the court shall not disregard the provisions of this Agreement but shall, instead, enforce\nthose provisions as to such scope as the court deems equitable.\n(B)\nThe undersigned recognizes that RCC and its subsidiaries (including SRTT) wil suffer irreparable damage if the undersigned breaches these covenants. The undersigned recognizes that it may be\ndifficult to compute the damage to RCC and its subsidiaries (including SRTT) as a result of any such breach by the undersigned and that, therefore, in addition to any other relief to which it may be entitled, RCC and\nits subsidiaries (including SRTT) shal be entitled to apply to any court of competent jurisdiction for injunctive relief, both temporary and permanent, to restrain any breach, threatened or actual, of any of the restrictive\ncovenants contained herein, and the undersigned hereby consents to the issuance of such injunctive relief without the posting of a bond or other security.\n(C)\nThis Agreement will be governed by the laws of the State of Maine. The undersigned hereby consents to persona jurisdiction by the federal and state courts of the State of Maine in the event of\nany\ndispute arising hereunder.\n5.\nMiscellaneous.\n(A) The undersigned agrees that this Agreement shal inure to the benefit of RCC and its subsidiaries (including SRTT) and their successors and assigns.\n(B)\nNo waiver or modification of this Agreement or any provision of this Agreement wil be effective unless made in writing and executed by both parties hereto.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth in the first paragraph.\n(Larger Shareholder)	EX-2.1 3 j1336_ex2d1.htm EX-2.1\nExhibit G\nForm of Non-Competition, Non-Solicitation and Confidentiality Agreement\nNon-Competition, Non-Solicitation\nand\nConfidentiality Agreement\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement (“Agreement”) has been executed and delivered as of the ___ day of ___________________ , by ___________________ ( “Larger\nShareholder”) , for the benefit of Rural Cellular Corporation, a Minnesota corporation, ( “RCC ”) and its subsidiaries, including, but not limited to Saco River Telegraph and Telephone Company, a Maine corporation\n(“SRTT ”) .\nRECITALS:\nA.\nSRTT, certain stockholders of SRTT, including the Larger Stockholder and Rural Cellular Corporation, a Minnesota corporation (“RCC ”) entered into an Agreement and Plan of Merger\n(the “Merger Agreement”) dated as of June __ , 2000 which provides for the acquisition by a wholly owned subsidiary of RCC (or one of RCC’s subsidiaries) all of the issued and\noutstanding capital stock of SRTT; and\nB.\nUnless otherwise defined in this Agreement, capitalized terms used but not defined shall have the same definition as ascribed to such terms in the Merger Agreement; and\nC.\nAs a material inducement to RCC to acquire, through merger, SRTT , and in consideration of the terms and conditions contained in the Merger Agreement and other good and valuable\nconsideration, the Larger Stockholder has agreed to enter into this Agreement as a condition of consummating the transaction contemplated by the Merger Agreement.\nNOW, THEREFORE , in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees as follows:\n1.\nRestrictive Covenant. Larger Stockholder agrees that for a period of one (1) year from and after the date of this Agreement (“Restricted Period”) (which period shall be extended as\nappropriate for any period(s) of time that the Larger Stockholder is in breach of the restrictive covenants set forth herein), he/she/it will not, directly or indirectly, own (except for ownership of less than\nthree percent (3%) of the aggregate securities of any class of publicly traded securities of any Person), participate in (whether as a partner, shareholder, principal, member, officer, director, agent,\ntrustee, consultant, lender, employee or in any other relationship or capacity), operate, manage, or work for any Person that engages in the operation or ownership of any of the following businesses\nlocated in Maine, New Hampshire or within two hundred fifty (250) miles thereof: (A) any local exchange carrier or other wireline telecommunications business; (B) any wireless telecommunications\nbusiness, including cellular, personal communication services, microwave or other bandwidth; (C) and other communication or data services.\n2.\nNonsolicitation of Employees. The undersigned further agrees that during the Restricted Period the undersigned will not, either alone or in conjunction with any other Person, directly or indirectly,\nsolicit, divert or attempt to solicit or divert any of the employees or agents of RCC or its subsidiaries (including SRTT) to work for or represent any competitor of RCC or its subsidiaries (including SRTT) or for any\nother employment.\n3.\nConfidentiality. The undersigned agrees that all matter of a proprietary or confidential nature, including, but not limited to, financial data, information regarding customers, vendors and pricing\ninformation, which the undersigned has obtained or which the undersigned has made or compiled during or because of the undersigned’s relationship with SRTT shall be the exclusive property of SRTT and shall be\nregarded by the undersigned as of a confidential or proprietary nature. The undersigned will regard and preserve as confidential all such information, will neither disclose, nor supply to any person, firm, or business,\nnor use for the undersigned’s own benefit or business said confidential or proprietary information unless otherwise expressly authorized in writing by RCC.\n4.\nEnforcement.\n(A) The undersigned agrees that the scope of the restrictions contained in this Agreement are reasonable and necessary for the protection of RCC and its subsidiaries (including SRTT). If any court should\nhold that the covenants contained in this Agreement are too broad to be enforced, the undersigned specifically agrees that the court shall not disregard the provisions of this Agreement but shall, instead, enforce\nthose provisions as to such scope as the court deems equitable.\n(B) The undersigned recognizes that RCC and its subsidiaries (including SRTT) will suffer irreparable damage if the undersigned breaches these covenants. The undersigned recognizes that it may be\ndifficult to compute the damage to RCC and its subsidiaries (including SRTT) as a result of any such breach by the undersigned and that, therefore, in addition to any other relief to which it may be entitled, RCC and\nits subsidiaries (including SRTT) shall be entitled to apply to any court of competent jurisdiction for injunctive relief, both temporary and permanent, to restrain any breach, threatened or actual, of any of the restrictive\ncovenants contained herein, and the undersigned hereby consents to the issuance of such injunctive relief without the posting of a bond or other security.\n(C) This Agreement will be governed by the laws of the State of Maine. The undersigned hereby consents to personal jurisdiction by the federal and state courts of the State of Maine in the event of any\ndispute arising hereunder.\n5.\nMiscellaneous.\n(A) The undersigned agrees that this Agreement shall inure to the benefit of RCC and its subsidiaries (including SRTT) and their successors and assigns.\n(B) No waiver or modification of this Agreement or any provision of this Agreement will be effective unless made in writing and executed by both parties hereto.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth in the first paragraph.\n(Larger Shareholder)
369515a9d77c4ae3f5ae876a051abf25.pdf	jurisdiction party term	EXHIBIT “B”\nFORM OF CONFIDENTIALITY AGREEMENT\nEPIQ SYSTEMS, INC.\n501 Kansas Avenue\nKansas City, KS 66105-1103\n[\n]\nTo: St. Denis J. Villere & Company, L.L.C .\nLadies and Gentlemen:\nThis letter agreement shall become effective upon due execution by each of the parties hereto. Capitalized terms used but not\notherwise defined herein shall have the meanings given to such terms in the Director Appointment Agreement (the “Director\nAppointment Agreement”) dated as of the date hereof among Epiq Systems, Inc. (the “Company”), St. Denis J. Villere & Company,\nL.L.C. and the investment funds, accounts and other clients to which it provides investment advice (“Villere”) and [\n] (the\n“Villere Designee”). The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement,\napplicable fiduciary duties and except as otherwise instructed by the Company, the Villere Designee may, disclose information\nobtained while serving a member of the Board of Directors (the “Board”) of the Company to you and the Representatives (as\nhereinafter defined) and may discuss such information with any and all such persons. As a result, you may receive certain non-public\ninformation regarding the Company. You acknowledge and agree that this information is proprietary to the Company and may\ninclude trade secrets, strategic, business or financial planning information, financial results, financial projections and forecasts,\ndiscussions or deliberations of the Board or its committees as a whole or of individual members of the Board or its committees or\nmembers of senior management, advice received by the Board or its committees or members of management of the Company from\nattorneys, accountants, consultants, financial advisors and other advisors or other business information the disclosure of which could\nharm the Company or its shareholders. In consideration for, and as a condition of, non-public information being furnished to you and\nin consideration for the Company’s agreements and obligations in the Director Appointment Agreement and, subject to the\nrestrictions in paragraph 2, your attorneys, advisors, directors, members, officers and employees (collectively, “Representatives”) and\nyou agree to treat any and all information concerning the Company that is furnished to you or your Representatives (regardless of the\nmanner in which it is furnished, including without limitation in written or electronic format or orally, gathered by visual inspection or\notherwise) by the Villere Designee, or by or on behalf of the Company or any of the Company Representatives, together with any\nnotes, analyses, compilations, studies, interpretations, documents, records, extracts or other summaries thereof containing, referring,\nrelating to, based upon or derived from such information, in whole or in part (collectively, “Confidential Information”), in accordance\nwith the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Confidential Information” does not include information that (i) is or has become generally available to the public other\nthan as a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation\nof confidentiality, (ii) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being\nfurnished to you by the Villere Designee, or by or on behalf of the Company or (iii) is received from a source other than the Villere\nDesignee, the Company or any of its representatives; provided, that in the case of (iii) above, the source of such information was not\nbelieved to you, after inquiring of the disclosing person, to be bound by a confidentiality agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company with respect to such information at the time the same was disclosed.\n2. You and your Representatives will, and you will cause your Representatives to, (a) keep the Confidential Information strictly\nconfidential, (b) not disclose any of the Confidential Information in any manner whatsoever without the prior written consent of the\nCompany and (c) not use any of the Confidential Information except to the extent permitted by the Director Appointment Agreement;\nprovided, however, that you may disclose any of such information to your Representatives (i) who need to know such information for\nthe sole purpose of advising you and (ii) who are informed by you of the confidential nature of such information; provided, further,\nthat you will be responsible for any violation of this letter agreement by your Representatives as if they were parties hereto except\nthat you will not be so responsible with respect to any such Representative who has executed a copy of this letter agreement as an\nAdditional Signatory and delivered such signed copy to the Company. It is understood and agreed that the Villere Designee shall not\ndisclose to you or your Representatives any Legal Advice (as defined below) that may be included in the Confidential Information\nwith respect to which such disclosure would constitute waiver of the Company’s attorney client privilege; provided, however, that the\nVillere Designee may provide such disclosure if reputable outside legal counsel of national standing provides the Company with a\nwritten opinion that such disclosure will not waive the Company’s attorney client privilege with respect to such Legal Advice. “Legal\nAdvice” as used herein shall be solely and exclusively limited to the advice provided by legal counsel stating legal rights, duties,\nliabilities and defenses and shall not include factual information or the formulation or analysis of business strategy.\n3. In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Confidential Information, you will promptly (and in any event, sufficiently in advance of any such disclosure to\nallow the Company a reasonable opportunity to respond) notify (except where such notice would be legally prohibited) the Company\nin writing by facsimile and certified mail which notification shall include a list detailing the specific Confidential Information you\nintend to disclose so that the Company may seek a protective order, other appropriate remedy or other actions to limit such disclosure\n(and if the Company seeks such an order, other remedy or other actions you will provide such cooperation as the Company shall\nreasonably request, at its cost and expense). Nothing herein shall be deemed to prevent you or your Representatives, as the case may\nbe, from honoring a subpoena, legal process or other legal requirement that seeks or requires discovery, disclosure or production of\nthe Confidential Information if (a) you produce or disclose only that portion of the Confidential Information which your outside legal\ncounsel of national standing advises you is legally required to be so produced or disclosed and you inform\nthe recipient of such Confidential Information of the existence of this letter agreement and the confidential nature of such\nConfidential Information; or (b) the Company consents in writing to having the Confidential Information produced or disclosed\npursuant to the subpoena, legal process or other legal requirement. In no event will you or any of your Representatives oppose action\nby the Company to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded the Confidential Information. It is understood that there shall be no\n“legal requirement” requiring you to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure,\nyou would be prohibited from purchasing, selling, or engaging in derivative transactions with respect to, the Common Stock of the\nCompany or otherwise proposing or making an offer to do any of the foregoing or making any offer, including any tender offer, or\nyou would be unable to file any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated\nthereunder. Before filing any Schedule 13D or amendment thereto pursuant to Section 13(d) of the Exchange Act or the rules\npromulgated thereunder with the SEC or other governmental or regulatory body in which you intend to include Confidential\nInformation that you believe is legally required to be included in such a filing, you will submit such filing to the Company for review\nand will not include such Confidential Information in such filing if the Company provides you (not more than one business day\nfollowing your delivery of such filing to the Company), with a written opinion addressed to you of reputable outside legal counsel of\nnational standing, stating that the Confidential Information is not legally required to be included in such filing and stating that you\nmay rely upon such opinion.\n4. You acknowledge that (a) none of the Company or any of its representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Confidential Information, and (b) none of the Company or any of its\nrepresentatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom. You and your Representatives shall not directly or indirectly\ninitiate contact or communication with any executive or employee of the Company [other than [\n] (or any individuals\nsubstituted in the Company’s sole discretion)] concerning Confidential Information, or to seek any information in connection\ntherewith from any such person [other than [\n] (or substitute),] without the prior consent of the Company; provided, however,\nthe restriction in this sentence shall not in any way apply to the Villere Designee.\n5. All Confidential Information shall remain the property of the Company. Neither you nor any of your Representatives shall by\nvirtue of our disclosure of and/or your use of any Confidential Information acquire any rights with respect thereto, all of which rights\n(including all intellectual property rights) shall remain exclusively with the Company. Upon the request of the Company for any\nreason, you will promptly return to the Company all originals and hard copies of the Confidential Information and permanently erase\nor delete all electronic copies of the Confidential Information in your or any of your Representatives’ possession or control (and,\nupon the request of the Company, shall certify to the Company that such Confidential Information has been returned, erased or\ndeleted, as the case may be). Notwithstanding the foregoing, you and your Representatives (i) may retain a copy of the Confidential\nInformation in order to comply with applicable law, regulation or professional standards, or to comply with a bona fide document\nretention policy, and (ii) to the extent that\nConfidential Information is retained in standard archival or a computer back-up system in the ordinary course of business, such\nretained Confidential Information shall be destroyed only to the extent that it is reasonably practical to do so, provided, that, such\nretained Confidential Information shall remain subject to the terms of this letter agreement for so long as retained by you or your\nRepresentatives. Notwithstanding the return or destruction of Confidential Information, you, and your Representatives will continue\nto be bound by the confidentiality and other obligations set forth in this letter agreement.\n6. You acknowledge that the Confidential Information may constitute material non-public information under applicable federal and\nstate securities laws, and that you shall not trade or engage in any transaction involving the Company’s securities, on the basis of\nsuch information in violation of such laws.\n7. You hereby represent and warrant to the Company that (i) you have all requisite company power and authority to execute and\ndeliver this letter agreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed\nand delivered by you, and is a valid and binding obligation, enforceable against you in accordance with its terms, (iii) this Agreement\nwill not result in a violation of any terms or conditions of any agreements to which you are a party or by which you may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting you, and (iv) your entry into this\nAgreement does not require approval by any owners or holders of any equity interest in you (except as has already been obtained).\n8. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a\nwaiver of any other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the\nCompany to insist upon strict adherence to any term of this letter agreement on one or more occasions shall not be considered a\nwaiver or deprive the Company of the right thereafter to insist upon strict adherence to that term or any other term of this letter\nagreement.\n9. You acknowledge and agree that the value of the Confidential Information to the Company is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms. You further acknowledge and agree that in the event of an actual or threatened\nviolation of this letter agreement, immediate and irreparable harm or injury would be caused for which money damages would not be\nan adequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available\nto the Company at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter\nagreement and to enforce specifically the terms and provisions of this letter agreement exclusively in the Circuit Courts of Jackson\nCounty in the State of Missouri, or, if such court lacks subject matter jurisdiction, the United States District Court for the Western\nDistrict of Missouri (the “Chosen Courts”). In the event that any action shall be brought in equity to enforce the provisions of this\nletter agreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n10. Each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Chosen Courts in the event any dispute\narises out of this letter agreement or the transactions contemplated by this letter agreement, (b) agrees that it shall not attempt to deny\nor defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it shall not bring any\naction relating to this letter agreement or the transactions contemplated by this letter agreement in any court other than the Chosen\nCourts, and each of the parties irrevocably waives the right to trial by jury, (d) agrees to waive any bonding requirement under any\napplicable law, in the case any other party seeks to enforce the terms by way of equitable relief, and (e) each of the parties irrevocably\nconsents to service of process by a reputable overnight delivery service, signature requested, to the address of such parties’ principal\nplace of business or as otherwise provided by applicable law. THIS LETTER AGREEMENT SHALL BE GOVERNED IN ALL\nRESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF MISSOURI\nAPPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT\nGIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n11. This letter agreement and the Director Appointment Agreement contain the entire understanding of the parties with respect to the\nsubject matter hereof and thereof and this letter agreement may be amended only by an agreement in writing executed by the parties\nhereto.\n12. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by telecopy and email, when such\ntelecopy is transmitted to the telecopy number set forth below and sent to the email address set forth below and the appropriate\nconfirmation is received or (b) if given by any other means, when actually received during normal business hours at the address\nspecified in this subsection:\nIf to the Company:\nEpiq Systems, Inc.\n501 Kansas Avenue\nKansas City, KS 66105-1103\nAttention:\nGeneral Counsel\nFacsimile:\n(913) 321-1243\nEmail:\njrothman@epiqsystems.com\nWith a copy to (which shall not constitute notice):\nKirkland & Ellis LLP\n300 North LaSalle\nChicago, IL 60654\nAttention:\nRichard W. Porter, P.C .\nRobert M. Hayward, P.C .\nPhone:\n(312) 862-2000\nFacsimile:\n(312) 862-2200\nEmail:\nRichard.Porter@kirkland.com\nRobert.Hayward@kirkland.com\nIf to Villere:\nSt. Denis J. Villere & Company, L.L .C .\n601 Poydras St, Suite 1808\nNew Orleans, LA 70130\nAttention:\nGeorge Young\nFacsimile:\n(504) 599-4544\nEmail:\ngeorgey@villere.com\nWith a copy to (which shall not constitute notice):\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew York, NY 10036-6522\nAttention:\nRichard J. Grossman\nPaul T. Schnell\nPhone:\n(212) 735-3000\nFacsimile:\n(212) 735-2000\nEmail:\nrichard.grossman@skadden.com\npaul.schnell@skadden.com\nWith a copy to (which shall not constitute notice):\nLiskow and Lewis\nOne Shell Square\n701 Poydras Street, Suite 500\nNew Orleans, LA 70139\nAttention:\nJohn C. Anjier\nPhone:\n(504) 556-4177\nFacsimile:\n(504) 556-4108\nEmail:\njcanjier@liskow.com\n13. If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of\nsuch provision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n14. This letter agreement may be executed in two or more counterparts which together shall constitute a single agreement.\n15. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by\nyou without the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties\nhereto.\n17. This letter agreement shall expire upon the earlier of (i) two (2) years from the date that no Villere Designee serves as a director\nof the Company and (ii) two (2) years from the date on which Villere last received any Confidential Information; except that you\nshall maintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade\nsecrets for such time as such information constitutes a trade secret of the Company as defined under 18 U.S.C. § 1839(3).\n[Signature Page Follows]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEPIQ SYSTEMS, INC.\nBy:\nName:\nTitle:\nSignature Page to Confidentiality Agreement\nAccepted and agreed as of the date first written above:\nST. DENIS J. VILLERE & COMPANY, L.L .C .\nBy:\nName:\nTitle:\nSignature Page to Confidentiality Agreement	EXHIBIT “B"\nFORM OF CONFIDENTIALITY AGREEMENT\nEPIQ SYSTEMS, INC.\n501 Kansas Avenue\nKansas City, KS 66105-1103\nTo: St. Denis]. Villere & Company, L.L.C.\nLadies and Gentlemen:\nThis letter agreement shall become effective upon due execution by each of the parties hereto. Capitalized terms used but not\notherwise defined herein shall have the meanings given to such terms in the Director Appointment Agreement (the ”Director\nAppointment Agreement”) dated as of the date hereof among Epiq Systems, Inc. (the ”Company”), St. Denis]. Villere & Company,\nL.L.C. and the investment funds, accounts and other clients to which it provides investment advice (”W") and [ ] (the\n”Villere Designee"). The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement,\napplicable fiduciary duties and except as otherwise instructed by the Company, the Villere Designee may, disclose information\nobtained while serving a member of the Board of Directors (the ”Bold") of the Company to you and the Representatives (as\nhereinafter defined) and may discuss such information with any and all such persons. As a result, you may receive certain non-public\ninformation regarding the Company. Y ou acknowledge and agree that this information is proprietary to the Company and may\ninclude trade secrets, strategic, business or financial planning information, financial results, financial projections and forecasts,\ndiscussions or deliberations of the Board or its committees as a whole or of individual members of the Board or its committees or\nmembers of senior management, advice received by the Board or its committees or members of management of the Company from\nattorneys, accountants, consultants, financial advisors and other advisors or other business information the disclosure of which could\nharm the Company or its shareholders. In consideration for, and as a condition of, non-public information being furnished to you and\nin consideration for the Company' s agreements and obligations in the Director Appointment Agreement and, subject to the\nrestrictions in paragraph 2, your attorneys, advisors, directors, members, officers and employees (collectively, ”Representatives”) and\nyou agree to treat any and all information concerning the Company that is furnished to you or your Representatives (regardless of the\nmanner in which it is furnished, including without limitation in written or electronic format or orally, gathered by visual inspection or\notherwise) by the Villere Designee, or by or on behalf of the Company or any of the Company Representatives, together with any\nnotes, analyses, compilations, studies, interpretations, documents, records, extracts or other summaries thereof containing, referring,\nrelating to, based upon or derived from such information, in whole or in part (collectively, ”Confidential Information”), in accordance\nwith the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n \n1. The term ”Confidential Information” does not include information that (i) is or has become generally available to the public other\nthan as a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation\nof confidentiality, (ii) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being\nfurnished to you by the Villere Designee, or by or on behalf of the Company or (iii) is received from a source other than the Villere\nDesignee, the Company or any of its representatives; provided, that in the case of (iii) above, the source of such information was not\nbelieved to you, after inquiring of the disclosing person, to be bound by a confidentiality agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company with respect to such information at the time the same was disclosed.\n2. Y ou and your Representatives will, and you will cause your Representatives to, (a) keep the Confidential Information strictly\nconfidential, (b) not disclose any of the Confidential Information in any manner whatsoever without the prior written consent of the\nCompany and (c) not use any of the Confidential Information except to the extent permitted by the Director Appointment Agreement;\nprovided, however, that you may disclose any of such information to your Representatives (i) who need to know such information for\nthe sole purpose of advising you and (ii) who are informed by you of the confidential nature of such information; provided, further,\nthat you will be responsible for any violation of this letter agreement by your Representatives as if they were parties hereto except\nthat you will not be so responsible with respect to any such Representative who has executed a copy of this letter agreement as an\nAdditional Signatory and delivered such signed copy to the Company. It is understood and agreed that the Villere D esignee shall not\ndisclose to you or your Representatives any Legal Advice (as defined below) that may be included in the Confidential Information\nwith respect to which such disclosure would constitute waiver of the Company' s attorney client privilege; provided, however, that the\nVillere Designee may provide such disclosure if reputable outside legal counsel of national standing provides the Company with a\nwritten opinion that such disclosure will not waive the Company' s attorney client privilege with respect to such Legal Advice. ”Egg\nM” as used herein shall be solely and exclusively limited to the advice provided by legal counsel stating legal rights, duties,\nliabilities and defenses and shall not include factual information or the formulation or analysis of business strategy.\n3. In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Confidential Information, you will promptly (and in any event, sufficiently in advance of any such disclosure to\nallow the Company a reasonable opportunity to respond) notify (except where such notice would be legally prohibited) the Company\nin writing by facsimile and certified mail which notification shall include a list detailing the specific Confidential Information you\nintend to disclose so that the Company may seek a protective order, other appropriate remedy or other actions to limit such disclosure\n(and if the Company seeks such an order, other remedy or other actions you will provide such cooperation as the Company shall\nreasonably request, at its cost and expense). Nothing herein shall be deemed to prevent you or your Representatives, as the case may\nbe, from honoring a subpoena, legal process or other legal requirement that seeks or requires discovery, disclosure or production of\nthe Confidential Information if (a) you produce or disclose only that portion of the Confidential Information which your outside legal\ncounsel of national standing advises you is legally required to be so produced or disclosed and you inform\n \nthe recipient of such Confidential Information of the existence of this letter agreement and the confidential nature of such\nConfidential Information; or (b) the Company consents in writing to having the Confidential Information produced or disclosed\npursuant to the subpoena, legal process or other legal requirement. In no event will you or any of your Representatives oppose action\nby the Company to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded the Confidential Information. It is understood that there shall be no\n”legal requirement” requiring you to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure,\nyou would be prohibited from purchasing, selling, or engaging in derivative transactions with respect to, the Common Stock of the\nCompany or otherwise proposing or making an offer to do any of the foregoing or making any offer, including any tender offer, or\nyou would be unable to file any proxy materials in compliance with Section 14(a) of the Exchange A ct or the rules promulgated\nthereunder. Before filing any Schedule 13D or amendment thereto pursuant to Section 13(d) of the Exchange Act or the rules\npromulgated thereunder with the SEC or other governmental or regulatory body in which you intend to include Confidential\nInformation that you believe is legally required to be included in such a filing, you will submit such filing to the Company for review\nand will not include such Confidential Information in such filing if the Company provides you (not more than one business day\nfollowing your delivery of such filing to the Company), with a written opinion addressed to you of reputable outside legal counsel of\nnational standing, stating that the Confidential Information is not legally required to be included in such filing and stating that you\nmay rely upon such opinion.\n4. Y ou acknowledge that (a) none of the Company or any of its representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Confidential Information, and (b) none of the Company or any of its\nrepresentatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom. Y ou and your Representatives shall not directly or indirectly\ninitiate contact or communication with any executive or employee of the Company [other than [ ] (or any individuals\nsubstituted in the Company' s sole discretion)] concerning Confidential Information, or to seek any information in connection\ntherewith from any such person [other than [ ] (or substitute),] without the prior consent of the Company; provided, however,\nthe restriction in this sentence shall not in any way apply to the Villere Designee.\n5. All Confidential Information shall remain the property of the Company. Neither you nor any of your Representatives shall by\nvirtue of our disclosure of and/or your use of any Confidential Information acquire any rights with respect thereto, all of which rights\n(including all intellectual property rights) shall remain exclusively with the Company. Upon the request of the Company for any\nreason, you will promptly return to the Company all originals and hard copies of the Confidential Information and permanently erase\nor delete all electronic copies of the Confidential Information in your or any of your Representatives' possession or control (and,\nupon the request of the Company, shall certify to the Company that such Confidential Information has been returned, erased or\ndeleted, as the case may be). Notwithstanding the foregoing, you and your Representatives (i) may retain a copy of the Confidential\nInformation in order to comply with applicable law, regulation or professional standards, or to comply with a bona fide document\nretention policy, and (ii) to the extent that\n \nConfidential Information is retained in standard archival or a computer back-up system in the ordinary course of business, such\nretained Confidential Information shall be destroyed only to the extent that it is reasonably practical to do so, provided, that, such\nretained Confidential Information shall remain subject to the terms of this letter agreement for so long as retained by you or your\nRepresentatives. Notwithstanding the return or destruction of Confidential Information, you, and your Representatives will continue\nto be bound by the confidentiality and other obligations set forth in this letter agreement.\n6. Y ou acknowledge that the Confidential Information may constitute material non-public information under applicable federal and\nstate securities laws, and that you shall not trade or engage in any transaction involving the Company' s securities, on the basis of\nsuch information in violation of such laws.\n7. Y ou hereby represent and warrant to the Company that (i) you have all requisite company power and authority to execute and\ndeliver this letter agreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed\nand delivered by you, and is a valid and binding obligation, enforceable against you in accordance with its terms, (iii) this Agreement\nwill not result in a violation of any terms or conditions of any agreements to which you are a party or by which you may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting you, and (iv) your entry into this\nAgreement does not require approval by any owners or holders of any equity interest in you (except as has already been obtained).\n8. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a\nwaiver of any other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the\nCompany to insist upon strict adherence to any term of this letter agreement on one or more occasions shall not be considered a\nwaiver or deprive the Company of the right thereafter to insist upon strict adherence to that term or any other term of this letter\nagreement.\n9. Y ou acknowledge and agree that the value of the Confidential Information to the Company is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms. Y ou further acknowledge and agree that in the event of an actual or threatened\nviolation of this letter agreement, immediate and irreparable harm or injury would be caused for which money damages would not be\nan adequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available\nto the Company at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter\nagreement and to enforce specifically the terms and provisions of this letter agreement exclusively in the Circuit Courts of Jackson\nCounty in the State of Missouri, or, if such court lacks subject matter jurisdiction, the United States District Court for the Western\nDistrict of Missouri (the ”Chosen Courts”). In the event that any action shall be brought in equity to enforce the provisions of this\nletter agreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n \n10. Each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Chosen Courts in the event any dispute\narises out of this letter agreement or the transactions contemplated by this letter agreement, (b) agrees that it shall not attempt to deny\nor defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it shall not bring any\naction relating to this letter agreement or the transactions contemplated by this letter agreement in any court other than the Chosen\nCourts, and each of the parties irrevocably waives the right to trial by jury, (d) agrees to waive any bonding requirement under any\napplicable law, in the case any other party seeks to enforce the terms by way of equitable relief, and (e) each of the parties irrevocably\nconsents to service of process by a reputable overnight delivery service, signature requested, to the address of such parties' principal\nplace of business or as otherwise provided by applicable law. THIS LETTER AGREEMENT SHALL BE GOVERNED IN ALL\nRESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF MISSOURI\nAPPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT\nGIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n11. This letter agreement and the Director Appointment Agreement contain the entire understanding of the parties with respect to the\nsubject matter hereof and thereof and this letter agreement may be amended only by an agreement in writing executed by the parties\nhereto.\n12. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by telecopy and email, when such\ntelecopy is transmitted to the telecopy number set forth below and sent to the email address set forth below and the appropriate\nconfirmation is received or (b) if given by any other means, when actually received during normal business hours at the address\nspecified in this subsection:\nIf to the Company:\nEpiq Systems, Inc.\n501 Kansas Avenue\nKansas City, KS 66105-1103\nAttention: G eneral Counsel\nFacsimile: (913) 321-1243\nEmail: jrothman@ epiqsystems.com\nWith a copy to (which shall not constitute notice):\nKirkland & Ellis LLP\n300 North LaSalle\nChicago, IL 60654\nAttention: Richard W. Porter, P.C.\nRobert M. Hayward, PC.\nPhone: (312) 862-2000\nFacsimile: (312) 862-2200\nEmail: Richard.Porter@ kirklandcom\nRobert.Hayward@ kirklandcom\nIf to Villere:\nSt. D enis J. Villere & Company, L .L .C.\n601 Poydras St, Suite 1808\n \nNew Orleans, LA 70130\nA ttention: G eorge Y oung\nFacsimile: (504) 599-4544\nEmail: georgey@ villere.com\nWith a copy to (which shall not constitute notice):\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew Y ork, NY 10036-6522\nAttention: Richard]. Grossman\nPaul T. Schnell\nPhone: (212) 735-3000\nFacsimile: (212) 735-2000\nEmail: richard.grossman@ skadden.com\npaul.schnell@ skadden.com\nWith a copy to (which shall not constitute notice):\nLiskow and Lewis\nOne Shell Square\n701 Poydras Street, Suite 500\nNew Orleans, LA 70139\nAttention: John C. Anjier\nPhone: (504) 556-4177\nFacsimile: (504) 556-4108\nEmail: jcanjier@liskow.com\n13. If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of\nsuch provision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n14. This letter agreement may be executed in two or more counterparts which together shall constitute a single agreement.\n15. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by\nyou without the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties\nhereto.\n17. This letter agreement shall expire upon the earlier of (i) two (2) years from the date that no Villere Designee serves as a director\nof the Company and (ii) two (2) years from the date on which Villere last received any Confidential Information; except that you\nshall maintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade\nsecrets for such time as such information constitutes a trade secret of the Company as defined under 18 U.S.C. § 1839(3).\n[Signature Page Follows]\n \nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEPIQ SY STEMS, INC.\nBy:\nName:\nTitle:\nSignature Page to C onfidentiality Agreement\n \nAccepted and agreed as of the date first written above:\nST. DENIS]. VILLERE & COMPANY, L.L.C.\nBy:\name:\nTitle:\nSignature Page to C onfidentiality Agreement	EXHIBIT "B"\nFORM OF CONFIDENTIALITY AGREEMENT\nEPIQ SY STEMS, INC.\n501 Kansas Avenue\nKansas City, KS 66105-1103\nTo: St. Denis J. Villere & Company, L.L.C.\nLadies and Gentlemen:\nThis letter agreement shall become effective upon due execution by each of the parties hereto. Capitalized terms used but not\notherwise defined herein shall have the meanings given to such terms in the Director A ppointment A greement (the "Director\nppointment A greement") dated as of the date hereof among Epiq Systems, Inc. (the "Company"), St. Denis J. Villere & Company,\nL.L.C. and the investment funds, accounts and other clients to which it provides investment advice ("Villere") and I\n] (the\n"Villere Designee"). The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement,\napplicable fiduciary duties and except as otherwise instructed by the Company, the Villere Designee may, disclose information\nobtained while serving a member of the Board of Directors (the "Board") of the Company to you and the Representatives (as\nhereinafter defined) and may discuss such information with any and all such persons. As a result, you may receive certain non-public\ninformation regarding the Company. Y ou acknowledge and agree that this information is proprietary to the Company and may\ninclude trade secrets, strategic, business or financial planning information, financial results, financial projections and forecasts,\ndiscussions or deliberations of the Board or its committees as a whole or of individual members of the Board or its committees or\nmembers of senior management, advice received by the Board or its committees or members of management of the Company from\nattorneys, accountants, consultants, financial advisors and other advisors or other business information the disclosure of which could\nharm the Company or its shareholders. In consideration for, and as a condition of, non-public information being furnished to you and\nin consideration for the Company's agreements and obligations in the Director A ppointment A greement and, subject to the\nrestrictions in paragraph 2, your attorneys, advisors, directors, members, officers and employees (collectively, "Representatives") and\nyou agree to treat any and all information concerning the Company that is furnished to you or your Representatives (regardless of the\nmanner in which it is furnished, including without limitation in written or electronic format or orally, gathered by visual inspection\nor\notherwise) by the Villere Designee, or by or on behalf of the Company or any of the Company Representatives, together with any\nnotes, analyses, compilations, studies, interpretations, documents, records, extracts or other summaries thereof containing, referring,\nrelating to, based upon or derived from such information, in whole or in part (collectively, "Confidential Information"), in accordance\nwith the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term "Confidential Information" does not include information that (i) is or has become generally available to the public other\nthan as a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation\nof confidentiality, (ii) was within your or any of your Representatives' possession on a non-confidential basis prior to its being\nfurnished to you by the Villere Designee, or by or on behalf of the Company or (iii) is received from a source other than the Villere\nDesignee, the Company or any of its representatives; provided, that in the case of (iii) above, the source of such information was not\nbelieved to you, after inquiring of the disclosing person, to be bound by a confidentiality agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company with respect to such information at the time the same was disclosed.\n2. Y ou and your Representatives will, and you will cause your Representatives to, (a) keep the Confidential Information strictly\nconfidential, (b) not disclose any of the Confidential Information in any manner whatsoever without the prior written consent of the\nCompany and (c) not use any of the Confidential Information except to the extent permitted by the Director A ppointment A greement;\nprovided, however, that you may disclose any of such information to your Representatives (i) who need to know such information for\nthe sole purpose of advising you and (ii) who are informed by you of the confidential nature of such information; provided, further,\nthat you will be responsible for any violation of this letter agreement by your Representatives as if they were parties hereto except\nthat you will not be so responsible with respect to any such Representative who has executed a copy of this letter agreement as an\ndditional Signatory and delivered such signed copy to the Company. It is understood and agreed that the Villere esignee shall not\ndisclose to you or your Representatives any Legal dvice (as defined below) that may be included in the Confidential Information\nwith respect to which such disclosure would constitute waiver of the Company's attorney client privilege; provided, however that the\nVillere Designee may provide such disclosure if reputable outside legal counsel of national standing provides the Company with a\nwritten opinion that such disclosure will not waive the Company's attorney client privilege with respect to such Legal A dvice. "Legal\nAdvice" as used herein shall be solely and exclusively limited to the advice provided by legal counsel stating legal rights, duties,\nliabilities and defenses and shall not include factual information or the formulation or analysis of business strategy.\n3.\nIn the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Confidential Information, you will promptly (and in any event, sufficiently in advance of any such disclosure to\nallow the Company a reasonable opportunity to respond) notify (except where such notice would be legally prohibited) the Company\nin writing by facsimile and certified mail which notification shall include a list detailing the specific Confidential Information you\nintend to disclose so that the Company may seek a protective order, other appropriate remedy or other actions to limit such disclosure\n(and if the Company seeks such an order, other remedy or other actions you will provide such cooperation as the Company shall\nreasonably request, at its cost and expense). Nothing herein shall be deemed to prevent you or your Representatives, as the case may\nbe, from honoring a subpoena, legal process or other legal requirement that seeks or requires discovery, disclosure or production of\nthe Confidential Information if (a) you produce or disclose only that portion of the Confidential Information which your outside legal\ncounsel of national standing advises you is legally required to be so produced or disclosed and you inform\nthe recipient of such Confidential Information of the existence of this letter agreement and the confidential nature of such\nConfidential Information; or (b) the Company consents in writing to having the Confidential Information produced or disclosed\npursuant to the subpoena, legal process or other legal requirement In no event will you or any of your Representatives oppose action\nby the Company to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded the Confidential Information. It is understood that there shall be no\n"legal requirement" requiring you to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure,\nyou would be prohibited from purchasing, selling, or engaging in derivative transactions with respect to, the Common Stock of the\nCompany or otherwise proposing or making an offer to do any of the foregoing or making any offer, including any tender offer, or\nyou would be unable to file any proxy materials in compliance with Section 14(a) of the Exchange A ct or the rules promulgated\nthereunder Before filing any Schedule 13D or amendment thereto pursuant to Section 13(d) of the Exchange A ct or the rules\npromulgated thereunder with the SEC or other governmental or regulatory body in which you intend to include Confidential\nInformation that you believe is legally required to be included in such a filing, you will submit such filing to the Company for review\nand will not include such Confidential Information in such filing if the Company provides you (not more than one business day\nfollowing your delivery of such filing to the Company), with a written opinion addressed to you of reputable outside legal counsel of\nnational standing, stating that the Confidential Information is not legally required to be included in such filing and stating that you\nmay rely upon such opinion.\n4. Y ou acknowledge that (a) none of the Company or any of its representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Confidential Information, and (b) none of the Company or any of its\nrepresentatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom. Y ou and your Representatives shall not directly or indirectly\ninitiate contact or communication with any executive or employee of the Company [other than I\n] (or any individuals\nsubstituted in the Company's sole discretion) concerning Confidential Information, or to seek any information in connection\ntherewith from any such person [other than I ] (or substitute), without the prior consent of the Company; provided, however,\nthe restriction in this sentence shall not in any way apply to the Villere Designee.\n5. All Confidential Information shall remain the property of the Company. Neither you nor any of your Representatives shall by\nvirtue of our disclosure of and/or your use of any Confidential Information acquire any rights with respect thereto, all of which rights\n(including all intellectual property rights) shall remain exclusively with the Company. Upon the request of the Company for any\nreason, you will promptly retum to the Company all originals and hard copies of the Confidentia Information and permanently erase\nor delete all electronic copies of the Confidential Information in your or any of your Representatives' possession or control (and,\nupon the request of the Company, shall certify to the Company that such Confidential Information has been retured, erased or\ndeleted, as the case may be). Notwithstanding the foregoing, you and your Representatives (i) may retain a copy of the Confidential\nInformation in order to comply with applicable law, regulation or professional standards, or to comply with a bona fide document\nretention policy, and (ii) to the extent that\nConfidential Information is retained in standard archival or a computer back-up system in the ordinary course of business, such\nretained Confidential Information shall be destroyed only to the extent that it is reasonably practical to do so, provided, that, such\nretained Confidential Information shall remain subject to the terms of this letter agreement for so long as retained by you or your\nRepresentatives. Notwithstanding the return or destruction of Confidential Information, you, and your Representatives will continue\nto be bound by the confidentiality and other obligations set forth in this letter agreement.\n6. Y ou acknowledge that the Confidential Information may constitute material non-public information under applicable federal and\nstate securities laws, and that you shall not trade or engage in any transaction involving the Company's securities, on the basis of\nsuch information in violation of such laws.\n7. Y ou hereby represent and warrant to the Company that (i) you have all requisite company power and authority to execute\nand\ndeliver this letter agreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed\nand delivered by you, and is a valid and binding obligation enforceable against you in accordance with its terms, (iii) this A greement\nwill not result in a violation of any terms or conditions of any agreements to which you are a party or by which you may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting you, and (iv) your entry into this\nA greement does not require approval by any owners or holders of any equity interest in you (except as has already been obtained).\n8. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a\nwaiver of any other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the\nCompany to insist upon strict adherence to any term of this letter agreement on one or more occasions shall not be considered\na\nwaiver or deprive the Company of the right thereafter to insist upon strict adherence to that term or any other term of this letter\nagreement.\n9. Y ou acknowledge and agree that the value of the Confidentia Information to the Company is unique and substantial, but may\nbe\nimpractical or difficult to assess in monetary terms. Y ou further acknowledge and agree that in the event of an actual or threatened\nviolation of this letter agreement, immediate and irreparable harm or injury would be caused for which money damages would not be\nan adequate remedy. A ccordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available\nto the Company at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter\nagreement and to enforce specifically the terms and provisions of this letter agreement exclusively in the Circuit Courts of Jackson\nCounty in the State of Missouri, or, if such court lacks subject matter jurisdiction, the United States District Court for the estem\nDistrict of Missouri (the "Chosen Courts"). In the event that any action shall be brought in equity to enforce the provisions of this\nletter agreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n10. Each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Chosen Courts in the event any dispute\narises out of this letter agreement or the transactions contemplated by this letter agreement, (b) agrees that it shall not attempt to deny\nor defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it shall not bring any\naction relating to this letter agreement or the transactions contemplated by this letter agreement in any court other than the Chosen\nCourts, and each of the parties irrevocably waives the right to trial by jury, (d) agrees to waive any bonding requirement under any\napplicable law, in the case any other party seeks to enforce the terms by way of equitable relief, and (e) each of the parties irrevocably\nconsents to service of process by a reputable overnight delivery service, signature requested, to the address of such parties' principal\nplace of business or as otherwise provided by applicable law. THIS LETTER AGREEMENT SHALL BE GOVERNED IN ALL\nRESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF MISSOURI\nAPPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT\nGIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n11. This letter agreement and the Director A ppointment A greement contain the entire understanding of the parties with respect to the\nsubject matter hereof and thereof and this letter agreement may be amended only by an agreement in writing executed by the parties\nhereto.\n12. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by telecopy and email, when such\ntelecopy is transmitted to the telecopy number set forth below and sent to the email address set forth below and the appropriate\nconfirmation is received or (b) if given by any other means, when actually received during normal business hours at the address\nspecified in this subsection:\nIf to the Company:\nEpiq Systems, Inc.\n501 (ansas Avenue\nKansas City, KS 66105-1103\nA ttention:\nGeneral Counsel\nFacsimile:\n(913) 321-1243\nEmail:\njrothman@epiqsystems.com\nWith a copy to (which shall not constitute notice):\nKirkland & Ellis LLP\n300 North LaSalle\nChicago, IL 60654\nA ttention:\nRichard W. Porter, P.C.\nRobert M. Hayward, P.C.\nPhone:\n(312) 862-2000\nFacsimile:\n(312) 862-2200\nEmail:\nRichard.Porter@kirkland.com\nRobert.Hayward@kirkland.com\nIf to Villere:\nSt. Denis J. Villere & Company, L.L.C.\n601 Poydras St, Suite 1808\nNew Orleans, LA 70130\nA ttention:\nGeorge Y oung\nFacsimile:\n(504) 599-4544\nEmail:\ngeorgey@villere.com\nWith a copy to (which shall not constitute notice):\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew Y ork, NY 10036-6522\nA ttention:\nRichard J. Grossman\nPaul T. Schnell\nPhone:\n(212) 735-3000\nFacsimile:\n(212) 735-2000\nEmail:\nrichard.grossman@skadden.com\npaul.schnell@skadden.com\nWith a copy to (which shall not constitute notice):\nLiskow and Lewis\nOne Shell Square\n701 Poydras Street, Suite 500\nNew Orleans, LA 70139\nA ttention:\nJohn C. njier\nPhone:\n(504) 556-4177\nFacsimile:\n(504) 556-4108\nEmail:\njcanjier@liskow.com\n13. If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of\nsuch provision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n14. This letter agreement may be executed in two or more counterparts which together shall constitute a single agreement.\n15 This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by\nyou without the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties\nhereto.\n17. This letter agreement shall expire upon the earlier of (i) two (2) years from the date that no Villere Designee serves as a director\nof\nthe Company and (ii) two (2) years from the date on which Villere last received any Confidential Information; except that you\nshall maintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade\nsecrets for such time as such information constitutes a trade secret of the Company as defined under 18 U.S.C. S 1839(3).\n[Signature Page Follows]\nPlease confirm your agreement with the foregoing by signing and returing one copy of this letter to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEPIQ SY STEMS, INC.\nBy:\nName:\nTitle:\nSignature Page to Confidentiality Agreement\nAccepted and agreed as of the date first written above:\nST. DENIS J. VILLERE & COMPANY, L.L.C.\nBy:\nName:\nTitle:\nSignature Page to Confidentiality Agreement	EXHIBIT “B”\nFORM OF CONFIDENTIALITY AGREEMENT\nEPIQ SYSTEMS, INC.\n501 Kansas Avenue\nKansas City, KS 66105-1103\n[\n]\nTo: St. Denis J. Villere & Company, L.L.C .\nLadies and Gentlemen:\nThis letter agreement shall become effective upon due execution by each of the parties hereto. Capitalized terms used but not\notherwise defined herein shall have the meanings given to such terms in the Director Appointment Agreement (the “Director\nAppointment Agreement”) dated as of the date hereof among Epiq Systems, Inc. (the “Company”), St. Denis J. Villere & Company,\nL.L.C. and the investment funds, accounts and other clients to which it provides investment advice (“Villere”) and [\n] (the\n“Villere Designee”). The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement,\napplicable fiduciary duties and except as otherwise instructed by the Company, the Villere Designee may, disclose information\nobtained while serving a member of the Board of Directors (the “Board”) of the Company to you and the Representatives (as\nhereinafter defined) and may discuss such information with any and all such persons. As a result, you may receive certain non-public\ninformation regarding the Company. You acknowledge and agree that this information is proprietary to the Company and may\ninclude trade secrets, strategic, business or financial planning information, financial results, financial projections and forecasts,\ndiscussions or deliberations of the Board or its committees as a whole or of individual members of the Board or its committees or\nmembers of senior management, advice received by the Board or its committees or members of management of the Company from\nattorneys, accountants, consultants, financial advisors and other advisors or other business information the disclosure of which could\nharm the Company or its shareholders. In consideration for, and as a condition of, non-public information being furnished to you and\nin consideration for the Company’s agreements and obligations in the Director Appointment Agreement and, subject to the\nrestrictions in paragraph 2, your attorneys, advisors, directors, members, officers and employees (collectively, “Representatives”) and\nyou agree to treat any and all information concerning the Company that is furnished to you or your Representatives (regardless of the\nmanner in which it is furnished, including without limitation in written or electronic format or orally, gathered by visual inspection or\notherwise) by the Villere Designee, or by or on behalf of the Company or any of the Company Representatives, together with any\nnotes, analyses, compilations, studies, interpretations, documents, records, extracts or other summaries thereof containing, referring,\nrelating to, based upon or derived from such information, in whole or in part (collectively, “Confidential Information”), in accordance\nwith the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Confidential Information” does not include information that (i) is or has become generally available to the public other\nthan as a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation\nof confidentiality, (ii) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being\nfurnished to you by the Villere Designee, or by or on behalf of the Company or (iii) is received from a source other than the Villere\nDesignee, the Company or any of its representatives; provided, that in the case of (iii) above, the source of such information was not\nbelieved to you, after inquiring of the disclosing person, to be bound by a confidentiality agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company with respect to such information at the time the same was disclosed.\n2. You and your Representatives will, and you will cause your Representatives to, (a) keep the Confidential Information strictly\nconfidential, (b) not disclose any of the Confidential Information in any manner whatsoever without the prior written consent of the\nCompany and (c) not use any of the Confidential Information except to the extent permitted by the Director Appointment Agreement;\nprovided, however, that you may disclose any of such information to your Representatives (i) who need to know such information for\nthe sole purpose of advising you and (ii) who are informed by you of the confidential nature of such information; provided, further,\nthat you will be responsible for any violation of this letter agreement by your Representatives as if they were parties hereto except\nthat you will not be so responsible with respect to any such Representative who has executed a copy of this letter agreement as an\nAdditional Signatory and delivered such signed copy to the Company. It is understood and agreed that the Villere Designee shall not\ndisclose to you or your Representatives any Legal Advice (as defined below) that may be included in the Confidential Information\nwith respect to which such disclosure would constitute waiver of the Company’s attorney client privilege; provided, however, that the\nVillere Designee may provide such disclosure if reputable outside legal counsel of national standing provides the Company with a\nwritten opinion that such disclosure will not waive the Company’s attorney client privilege with respect to such Legal Advice. “Legal\nAdvice” as used herein shall be solely and exclusively limited to the advice provided by legal counsel stating legal rights, duties,\nliabilities and defenses and shall not include factual information or the formulation or analysis of business strategy.\n3. In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Confidential Information, you will promptly (and in any event, sufficiently in advance of any such disclosure to\nallow the Company a reasonable opportunity to respond) notify (except where such notice would be legally prohibited) the Company\nin writing by facsimile and certified mail which notification shall include a list detailing the specific Confidential Information you\nintend to disclose so that the Company may seek a protective order, other appropriate remedy or other actions to limit such disclosure\n(and if the Company seeks such an order, other remedy or other actions you will provide such cooperation as the Company shall\nreasonably request, at its cost and expense). Nothing herein shall be deemed to prevent you or your Representatives, as the case may\nbe, from honoring a subpoena, legal process or other legal requirement that seeks or requires discovery, disclosure or production of\nthe Confidential Information if (a) you produce or disclose only that portion of the Confidential Information which your outside legal\ncounsel of national standing advises you is legally required to be so produced or disclosed and you inform\nthe recipient of such Confidential Information of the existence of this letter agreement and the confidential nature of such\nConfidential Information; or (b) the Company consents in writing to having the Confidential Information produced or disclosed\npursuant to the subpoena, legal process or other legal requirement. In no event will you or any of your Representatives oppose action\nby the Company to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded the Confidential Information. It is understood that there shall be no\n“legal requirement” requiring you to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure,\nyou would be prohibited from purchasing, selling, or engaging in derivative transactions with respect to, the Common Stock of the\nCompany or otherwise proposing or making an offer to do any of the foregoing or making any offer, including any tender offer, or\nyou would be unable to file any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated\nthereunder. Before filing any Schedule 13D or amendment thereto pursuant to Section 13(d) of the Exchange Act or the rules\npromulgated thereunder with the SEC or other governmental or regulatory body in which you intend to include Confidential\nInformation that you believe is legally required to be included in such a filing, you will submit such filing to the Company for review\nand will not include such Confidential Information in such filing if the Company provides you (not more than one business day\nfollowing your delivery of such filing to the Company), with a written opinion addressed to you of reputable outside legal counsel of\nnational standing, stating that the Confidential Information is not legally required to be included in such filing and stating that you\nmay rely upon such opinion.\n4. You acknowledge that (a) none of the Company or any of its representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Confidential Information, and (b) none of the Company or any of its\nrepresentatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom. You and your Representatives shall not directly or indirectly\ninitiate contact or communication with any executive or employee of the Company [other than [\n] (or any individuals\nsubstituted in the Company’s sole discretion)] concerning Confidential Information, or to seek any information in connection\ntherewith from any such person [other than [\n] (or substitute),] without the prior consent of the Company; provided, however,\nthe restriction in this sentence shall not in any way apply to the Villere Designee.\n5. All Confidential Information shall remain the property of the Company. Neither you nor any of your Representatives shall by\nvirtue of our disclosure of and/or your use of any Confidential Information acquire any rights with respect thereto, all of which rights\n(including all intellectual property rights) shall remain exclusively with the Company. Upon the request of the Company for any\nreason, you will promptly return to the Company all originals and hard copies of the Confidential Information and permanently erase\nor delete all electronic copies of the Confidential Information in your or any of your Representatives’ possession or control (and,\nupon the request of the Company, shall certify to the Company that such Confidential Information has been returned, erased or\ndeleted, as the case may be). Notwithstanding the foregoing, you and your Representatives (i) may retain a copy of the Confidential\nInformation in order to comply with applicable law, regulation or professional standards, or to comply with a bona fide document\nretention policy, and (ii) to the extent that\nConfidential Information is retained in standard archival or a computer back-up system in the ordinary course of business, such\nretained Confidential Information shall be destroyed only to the extent that it is reasonably practical to do so, provided, that, such\nretained Confidential Information shall remain subject to the terms of this letter agreement for so long as retained by you or your\nRepresentatives. Notwithstanding the return or destruction of Confidential Information, you, and your Representatives will continue\nto be bound by the confidentiality and other obligations set forth in this letter agreement.\n6. You acknowledge that the Confidential Information may constitute material non-public information under applicable federal and\nstate securities laws, and that you shall not trade or engage in any transaction involving the Company’s securities, on the basis of\nsuch information in violation of such laws.\n7. You hereby represent and warrant to the Company that (i) you have all requisite company power and authority to execute and\ndeliver this letter agreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed\nand delivered by you, and is a valid and binding obligation, enforceable against you in accordance with its terms, (iii) this Agreement\nwill not result in a violation of any terms or conditions of any agreements to which you are a party or by which you may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting you, and (iv) your entry into this\nAgreement does not require approval by any owners or holders of any equity interest in you (except as has already been obtained).\n8. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a\nwaiver of any other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the\nCompany to insist upon strict adherence to any term of this letter agreement on one or more occasions shall not be considered a\nwaiver or deprive the Company of the right thereafter to insist upon strict adherence to that term or any other term of this letter\nagreement.\n9. You acknowledge and agree that the value of the Confidential Information to the Company is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms. You further acknowledge and agree that in the event of an actual or threatened\nviolation of this letter agreement, immediate and irreparable harm or injury would be caused for which money damages would not be\nan adequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available\nto the Company at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter\nagreement and to enforce specifically the terms and provisions of this letter agreement exclusively in the Circuit Courts of Jackson\nCounty in the State of Missouri, or, if such court lacks subject matter jurisdiction, the United States District Court for the Western\nDistrict of Missouri (the “Chosen Courts”). In the event that any action shall be brought in equity to enforce the provisions of this\nletter agreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n10. Each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Chosen Courts in the event any dispute\narises out of this letter agreement or the transactions contemplated by this letter agreement, (b) agrees that it shall not attempt to deny\nor defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it shall not bring any\naction relating to this letter agreement or the transactions contemplated by this letter agreement in any court other than the Chosen\nCourts, and each of the parties irrevocably waives the right to trial by jury, (d) agrees to waive any bonding requirement under any\napplicable law, in the case any other party seeks to enforce the terms by way of equitable relief, and (e) each of the parties irrevocably\nconsents to service of process by a reputable overnight delivery service, signature requested, to the address of such parties’ principal\nplace of business or as otherwise provided by applicable law. THIS LETTER AGREEMENT SHALL BE GOVERNED IN ALL\nRESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF MISSOURI\nAPPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT\nGIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n11. This letter agreement and the Director Appointment Agreement contain the entire understanding of the parties with respect to the\nsubject matter hereof and thereof and this letter agreement may be amended only by an agreement in writing executed by the parties\nhereto.\n12. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by telecopy and email, when such\ntelecopy is transmitted to the telecopy number set forth below and sent to the email address set forth below and the appropriate\nconfirmation is received or (b) if given by any other means, when actually received during normal business hours at the address\nspecified in this subsection:\nIf to the Company:\nEpiq Systems, Inc.\n501 Kansas Avenue\nKansas City, KS 66105-1103\nAttention:\nGeneral Counsel\nFacsimile:\n(913) 321-1243\nEmail:\njrothman@epiqsystems.com\nWith a copy to (which shall not constitute notice):\nKirkland & Ellis LLP\n300 North LaSalle\nChicago, IL 60654\nAttention:\nRichard W. Porter, P.C .\nRobert M. Hayward, P.C .\nPhone:\n(312) 862-2000\nFacsimile:\n(312) 862-2200\nEmail:\nRichard.Porter@kirkland.com\nRobert.Hayward@kirkland.com\nIf to Villere:\nSt. Denis J. Villere & Company, L.L .C .\n601 Poydras St, Suite 1808\nNew Orleans, LA 70130\nAttention:\nGeorge Young\nFacsimile:\n(504) 599-4544\nEmail:\ngeorgey@villere.com\nWith a copy to (which shall not constitute notice):\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew York, NY 10036-6522\nAttention:\nRichard J. Grossman\nPaul T. Schnell\nPhone:\n(212) 735-3000\nFacsimile:\n(212) 735-2000\nEmail:\nrichard.grossman@skadden.com\npaul.schnell@skadden.com\nWith a copy to (which shall not constitute notice):\nLiskow and Lewis\nOne Shell Square\n701 Poydras Street, Suite 500\nNew Orleans, LA 70139\nAttention:\nJohn C. Anjier\nPhone:\n(504) 556-4177\nFacsimile:\n(504) 556-4108\nEmail:\njcanjier@liskow.com\n13. If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of\nsuch provision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n14. This letter agreement may be executed in two or more counterparts which together shall constitute a single agreement.\n15. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by\nyou without the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties\nhereto.\n17. This letter agreement shall expire upon the earlier of (i) two (2) years from the date that no Villere Designee serves as a director\nof the Company and (ii) two (2) years from the date on which Villere last received any Confidential Information; except that you\nshall maintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade\nsecrets for such time as such information constitutes a trade secret of the Company as defined under 18 U.S.C. § 1839(3).\n[Signature Page Follows]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEPIQ SYSTEMS, INC.\nBy:\nName:\nTitle:\nSignature Page to Confidentiality Agreement\nAccepted and agreed as of the date first written above:\nST. DENIS J. VILLERE & COMPANY, L.L .C .\nBy:\nName:\nTitle:\nSignature Page to Confidentiality Agreement
36956818d96973656d2306e17a8b6013.pdf	effective_date jurisdiction party term	EX-99.(E).(3) 3 dex99e3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis is a Mutual Non-Disclosure Agreement (this “Agreement”), effective as of the date stated below (the “Effective Date”), between\nTechnology Research Corporation, a Florida corporation (the “Company”), and Coleman Cable, Inc., a Delaware corporation (the “Counterparty”).\nBackground\nThe Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that they can share\nconfidential information pertinent to the Opportunity with confidence that the other Party will use such confidential information only to evaluate the\nOpportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The Counterparty and the\nCompany are sometimes referred to individually as a “Party” and collectively as the “Parties.”\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n“Confidential Information” means all information concerning or related to the business, operations, results of operations, assets and affairs of a\nDisclosing Party, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating\nmethods, business strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings,\nconcepts, research and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of\nauthorship, know-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists,\ncustomer and prospect lists, and supplier and other customer information and data that the Disclosing Party or its Representatives discloses (or has,\nprior to the date of this Agreement, disclosed) to the Recipient or its Representatives in connection with the Opportunity, however documented or\ndisclosed, together with any copies, extracts, analyses, compilations, studies or other documents prepared or received by the Recipient or its\nRepresentatives, which contain or otherwise reflect such information.\n“Disclosing Party” means the Party furnishing Confidential Information.\n“Opportunity” has the meaning set forth in the Background.\n“Recipient” means the Party receiving Confidential Information.\n“Representatives” means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. Each Party in its capacity as a Recipient agrees to use the Confidential Information provided by the other Party solely for the purpose of\nevaluating the Opportunity, and\nfor no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding the\nforegoing, each Party may disclose such Confidential Information solely to those of its Representatives who (a) require such material for the purpose\nof evaluating the Opportunity on behalf of such Party, and (b) are informed by such Party of the confidential nature of the Confidential Information\nand the obligations of this Agreement and agree to abide by the terms hereof as if they were a Recipient hereunder. Each Party shall take all actions\nnecessary to cause its Representatives and affiliates who receive Confidential Information to comply with the terms of this Agreement as if they\nwere a Recipient. Each Party shall be responsible for any disclosure of Confidential Information by its Representatives other than in accordance with\nthe terms of this Agreement. Each Party acknowledges the confidential and proprietary nature of the Confidential Information provided by the other\nParty and acknowledges and agrees that it is acquiring no rights whatsoever in or to such Confidential Information. For avoidance of doubt, if the\nParties do not consummate a transaction with respect to the Opportunity and terminate discussions, neither Party nor its Representatives may use the\nConfidential Information of the other Party for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that they may\nconduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business and to\ncompete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives may contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law may restrict the Counterparty from pledging, selling, hedging, contracting to\nsell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or warrant to\npurchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of material non-\npublic information regarding the Company.\n3. Neither the Counterparty nor any current or future affiliate of the Counterparty, for a period ending on the earlier of (A) the date on which\nthe Parties enter into a definitive agreement with respect to the Opportunity and (B) one year from the date of this Agreement (the “Standstill\nTerm”), shall in any manner, directly or indirectly, without the prior written approval of the Company’s Board of Directors: (a) effect or participate in\nor in any way assist, facilitate, encourage or form, join or in any way participate in a “group” (as defined under the rules and regulations of the\nSecurities and Exchange Commission) with any other person to effect or seek, offer or propose to effect or participate in (i) any acquisition of any\nvoting securities (or beneficial ownership thereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any\nassets or businesses of the Company, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution\nor other extraordinary transaction with respect to the Company or any of its subsidiaries or affiliates or (iv) any “solicitation” of “proxies” (as these\nterms are used in the rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or\nany of its affiliates; or (b) authorize any of their respective Representatives to, in any manner, directly or indirectly, take any of the actions set forth\nin (a) above. During the Standstill Term, the Counterparty shall use its best efforts to cause its and its current and future affiliates’ Representatives to\nnot take, in any\nmanner, directly or indirectly, without the prior written approval of the Company’s Board of Directors, any of the actions set forth in (a) above.\nNothing in this Section 3 shall prohibit the Counterparty from making, at any time during the Standstill Term, confidential proposals to the\nCompany’s management or board of directors relating to any of the matters set forth in clause (a) above. Notwithstanding anything to the contrary\ncontained in this Agreement, if, at any time during the Standstill Term, (i) any Person (other than the Counterparty) or group of Persons\n(A) commences, or announces an intention to commence, a tender or exchange offer for at least 51% of any class of the Company’s securities,\n(B) commences, or announces an intention to commence, a proxy contest or a solicitation of consents with respect to the election of any director or\ndirectors of the Company, (C) acquires beneficial ownership of at least 15% of any class of the Company’s securities or (D) enters into, or announces\nan intention to enter into, an agreement with the Company contemplating the acquisition (by way of merger, tender offer or otherwise) of at least\n15% of any class of the Company’s securities or all or a substantial portion of the assets of the Company or any of the Company’s subsidiaries,\n(ii) the Company commences negotiations with any Person (other than the Counterparty) or group of Persons with respect to any transaction of the\ntype referred to in clause (i) above without entering into with such Person or group of Persons a mutual non-disclosure agreement having provisions\nno less restrictive than those set forth in this Agreement (and the Company shall promptly disclose such agreement to the Counterparty) or (iii) the\nCompany releases any Person from restrictions similar to those set forth in this Section 3, then (in any of such cases) the restrictions set forth in this\nSection 3 shall immediately terminate and cease to be of any further force or effect.\n4. Confidential Information does not include information that the Recipient demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Recipient or its Representatives, subsidiaries or affiliates, (b) was properly known to the Recipient, without restriction, prior to\ndisclosure by the Disclosing Party, (c) was properly disclosed to the Recipient by another person, but only if such person is not bound by a\nconfidentiality agreement with the Disclosing Party or is not otherwise restricted from providing such information by a contractual, legal or fiduciary\nduty. Additionally, notwithstanding any other provision of this Agreement, if the Recipient or any Representative of the Recipient is, at any time,\nlegally compelled to disclose any Confidential Information, the Recipient will provide the Disclosing Party with prompt notice thereof so that the\nDisclosing Party may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In\nthe absence of a protective order or a waiver from the Disclosing Party, the Recipient or its Representative may comply with such legal requirement\nby disclosing only such Confidential Information as is legally required.\n5. Each Party acknowledges and agrees that neither Party nor any of its Representatives makes any representation or warranty (express or\nimplied) as to the accuracy or completeness of the Confidential Information, except for those express representations and warranties that may be\nmade and set forth in a definitive agreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity, the Parties will promptly return or destroy all Confidential Information received\nunder this Agreement, and all\ncopies, extracts and other objects or items in which such Confidential Information may be contained or embodied, and certify in writing that it has\ncomplied with this requirement.\n7. Without the prior consent of the other Party, neither Party nor its Representatives will initiate contact with any employee of the other Party\nwith respect to the Opportunity. Each Party agrees that, for a period of one year from the Effective Date of this Agreement, such Party will not, and\nwill not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for employment\nor hire any employee of the other Party with whom such Party has had contact or who became known to such Party in connection with consideration\nof the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other similar employment solicitations that\nare not targeted at employees of the other Party.\n8. Each Party will promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information, or any\nother breach of this Agreement by such Party or any of its Representatives, and will cooperate with the other Party to help the other Party regain\npossession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party. The Counterparty acknowledges that the Company may disclose that it is\nexploring strategic alternatives. Nothing in this Agreement shall be deemed to prohibit a Party from: (a) making a public announcement regarding\nthe discussions (or the termination of such discussions) between the parties regarding the Opportunity, provided, however, that, to the extent\npracticable, a Party that intends to make such a public announcement shall discuss any such proposed announcement with the other Party prior to\nmaking such announcement; or (b) making any public announcement that may be required by applicable law, fiduciary duties or obligations pursuant\nto any listing agreement with a national securities exchange. The Parties acknowledge that any disclosures made by them before the Effective Date\nare not subject to the restrictions in this Agreement.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of two years\nfollowing the termination of discussion between the Parties. This Agreement shall terminate automatically if the Company has not given to the\nCounterparty any Confidential Information within ten days of the Effective Date of this Agreement.\n11. Each Party acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the other Party for which damages\nare not an adequate remedy, and that the other Party shall therefore be entitled (without the posting of a bond or other security) to equitable relief in\naddition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Delaware and may be modified or waived only in writing signed by the\nParty against which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the courts of the State of Delaware in New Castle County, Delaware, for any actions, suits or proceedings arising out of or\nrelating to this Agreement (and the Parties agree not to commence any action, suit or proceeding relating thereto, except in such courts), and further\nagree that service of any process, summons, notice or document by U.S . registered mail to the other Party’s address set forth next to their signature\nhereto shall be effective service of process for any action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally\nwaive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in the courts of the State of Delaware or\nthe United States of America located in New Castle County, Delaware, and hereby further irrevocably and unconditionally waive and agree not to\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term “person” means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement (as finally determined by a\ncourt of competent jurisdiction) shall be entitled to recover attorneys’ fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of Feb. 8, 2011 by:\n“Counterparty”\nCOLEMAN CABLE, INC.\nBy: /s/ G. Yetman\nName: Gary Yetman\nTitle: President and CEO\nCounterparty’s Address:\n1530 Shields Drive\nWaukegan, Illinois 60085\nAttention: G. Gary Yetman, President and Chief Executive Officer\n“Company”\nTECHNOLOGY RESEARCH CORPORATION\nBy: /s/ Robert D. Woltil\nName: Robert D. Woltil\nTitle: VP Finance, CFO and Secretary\nCompany’s Address:\n5250 140th Avenue North\nClearwater, Florida 33760\nAttention: Owen Farren, President and Chief Executive Officer	EX-99.(E).(3) 3 dex99e3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis is a Mutual Non-Disclosure Agreement (this “Agreement”), effective as of the date stated below (the “Effective Date”), between\nTechnology Research Corporation, a Florida corporation (the “Company”), and Coleman Cable, Inc., a Delaware corporation (the “Counterparty”).\nBackground\nThe Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that they can share\nconfidential information pertinent to the Opportunity with confidence that the other Party will use such confidential information only to evaluate the\nOpportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The Counterparty and the\nCompany are sometimes referred to individually as a “Party” and collectively as the “Parties.”\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n“Confidential Information” means all information concerning or related to the business, operations, results of operations, assets and affairs of a\nDisclosing Party, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating\nmethods, business strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings,\nconcepts, research and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of\nauthorship, know-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists,\ncustomer and prospect lists, and supplier and other customer information and data that the Disclosing Party or its Representatives discloses (or has,\nprior to the date of this Agreement, disclosed) to the Recipient or its Representatives in connection with the Opportunity, however documented or\ndisclosed, together with any copies, extracts, analyses, compilations, studies or other documents prepared or received by the Recipient or its\nRepresentatives, which contain or otherwise reflect such information.\n“Disclosing Party” means the Party furnishing Confidential Information.\n“Opportunity” has the meaning set forth in the Background.\n“Recipient” means the Party receiving Confidential Information.\n“Representatives” means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. Each Party in its capacity as a Recipient agrees to use the Confidential Information provided by the other Party solely for the purpose of\nevaluating the Opportunity, and\nfor no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding the\nforegoing, each Party may disclose such Confidential Information solely to those of its Representatives who (a) require such material for the purpose\nof evaluating the Opportunity on behalf of such Party, and (b) are informed by such Party of the confidential nature of the Confidential Information\nand the obligations of this Agreement and agree to abide by the terms hereof as if they were a Recipient hereunder. Each Party shall take all actions\nnecessary to cause its Representatives and affiliates who receive Confidential Information to comply with the terms of this Agreement as if they\nwere a Recipient. Each Party shall be responsible for any disclosure of Confidential Information by its Representatives other than in accordance with\nthe terms of this Agreement. Each Party acknowledges the confidential and proprietary nature of the Confidential Information provided by the other\nParty and acknowledges and agrees that it is acquiring no rights whatsoever in or to such Confidential Information. For avoidance of doubt, if the\nParties do not consummate a transaction with respect to the Opportunity and terminate discussions, neither Party nor its Representatives may use the\nConfidential Information of the other Party for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that they may\nconduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business and to\ncompete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives may contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law may restrict the Counterparty from pledging, selling, hedging, contracting to\nsell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or warrant to\npurchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of material non-\npublic information regarding the Company.\n3. Neither the Counterparty nor any current or future affiliate of the Counterparty, for a period ending on the earlier of (A) the date on which\nthe Parties enter into a definitive agreement with respect to the Opportunity and (B) one year from the date of this Agreement (the “Standstill\nTerm”), shall in any manner, directly or indirectly, without the prior written approval of the Company’s Board of Directors: (a) effect or participate in\nor in any way assist, facilitate, encourage or form, join or in any way participate in a “group” (as defined under the rules and regulations of the\nSecurities and Exchange Commission) with any other person to effect or seek, offer or propose to effect or participate in (i) any acquisition of any\nvoting securities (or beneficial ownership thereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any\nassets or businesses of the Company, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution\nor other extraordinary transaction with respect to the Company or any of its subsidiaries or affiliates or (iv) any “solicitation” of “proxies” (as these\nterms are used in the rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or\nany of its affiliates; or (b) authorize any of their respective Representatives to, in any manner, directly or indirectly, take any of the actions set forth\nin (a) above. During the Standstill Term, the Counterparty shall use its best efforts to cause its and its current and future affiliates’ Representatives to\nnot take, in any\nmanner, directly or indirectly, without the prior written approval of the Company’s Board of Directors, any of the actions set forth in (a) above.\nNothing in this Section 3 shall prohibit the Counterparty from making, at any time during the Standstill Term, confidential proposals to the\nCompany’s management or board of directors relating to any of the matters set forth in clause (a) above. Notwithstanding anything to the contrary\ncontained in this Agreement, if, at any time during the Standstill Term, (i) any Person (other than the Counterparty) or group of Persons\n(A) commences, or announces an intention to commence, a tender or exchange offer for at least 51% of any class of the Company’s securities,\n(B) commences, or announces an intention to commence, a proxy contest or a solicitation of consents with respect to the election of any director or\ndirectors of the Company, (C) acquires beneficial ownership of at least 15% of any class of the Company’s securities or (D) enters into, or announces\nan intention to enter into, an agreement with the Company contemplating the acquisition (by way of merger, tender offer or otherwise) of at least\n15% of any class of the Company’s securities or all or a substantial portion of the assets of the Company or any of the Company’s subsidiaries,\n(ii) the Company commences negotiations with any Person (other than the Counterparty) or group of Persons with respect to any transaction of the\ntype referred to in clause (i) above without entering into with such Person or group of Persons a mutual non-disclosure agreement having provisions\nno less restrictive than those set forth in this Agreement (and the Company shall promptly disclose such agreement to the Counterparty) or (iii) the\nCompany releases any Person from restrictions similar to those set forth in this Section 3, then (in any of such cases) the restrictions set forth in this\nSection 3 shall immediately terminate and cease to be of any further force or effect.\n4. Confidential Information does not include information that the Recipient demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Recipient or its Representatives, subsidiaries or affiliates, (b) was properly known to the Recipient, without restriction, prior to\ndisclosure by the Disclosing Party, (c) was properly disclosed to the Recipient by another person, but only if such person is not bound by a\nconfidentiality agreement with the Disclosing Party or is not otherwise restricted from providing such information by a contractual, legal or fiduciary\nduty. Additionally, notwithstanding any other provision of this Agreement, if the Recipient or any Representative of the Recipient is, at any time,\nlegally compelled to disclose any Confidential Information, the Recipient will provide the Disclosing Party with prompt notice thereof so that the\nDisclosing Party may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In\nthe absence of a protective order or a waiver from the Disclosing Party, the Recipient or its Representative may comply with such legal requirement\nby disclosing only such Confidential Information as is legally required.\n5. Each Party acknowledges and agrees that neither Party nor any of its Representatives makes any representation or warranty (express or\nimplied) as to the accuracy or completeness of the Confidential Information, except for those express representations and warranties that may be\nmade and set forth in a definitive agreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity, the Parties will promptly return or destroy all Confidential Information received\nunder this Agreement, and all\ncopies, extracts and other objects or items in which such Confidential Information may be contained or embodied, and certify in writing that it has\ncomplied with this requirement.\n7. Without the prior consent of the other Party, neither Party nor its Representatives will initiate contact with any employee of the other Party\nwith respect to the Opportunity. Each Party agrees that, for a period of one year from the Effective Date of this Agreement, such Party will not, and\nwill not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for employment\nor hire any employee of the other Party with whom such Party has had contact or who became known to such Party in connection with consideration\nof the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other similar employment solicitations that\nare not targeted at employees of the other Party.\n8. Each Party will promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information, or any\nother breach of this Agreement by such Party or any of its Representatives, and will cooperate with the other Party to help the other Party regain\npossession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party. The Counterparty acknowledges that the Company may disclose that it is\nexploring strategic alternatives. Nothing in this Agreement shall be deemed to prohibit a Party from: (a) making a public announcement regarding\nthe discussions (or the termination of such discussions) between the parties regarding the Opportunity, provided, however, that, to the extent\npracticable, a Party that intends to make such a public announcement shall discuss any such proposed announcement with the other Party prior to\nmaking such announcement; or (b) making any public announcement that may be required by applicable law, fiduciary duties or obligations pursuant\nto any listing agreement with a national securities exchange. The Parties acknowledge that any disclosures made by them before the Effective Date\nare not subject to the restrictions in this Agreement.\n \n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of two years\nfollowing the termination of discussion between the Parties. This Agreement shall terminate automatically if the Company has not given to the\nCounterparty any Confidential Information within ten days of the Effective Date of this Agreement.\n11. Each Party acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the other Party for which damages\nare not an adequate remedy, and that the other Party shall therefore be entitled (without the posting of a bond or other security) to equitable relief in\naddition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Delaware and may be modified or waived only in writing signed by the\nParty against which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the courts of the State of Delaware in New Castle County, Delaware, for any actions, suits or proceedings arising out of or\nrelating to this Agreement (and the Parties agree not to commence any action, suit or proceeding relating thereto, except in such courts), and further\nagree that service of any process, summons, notice or document by U.S. registered mail to the other Party’s address set forth next to their signature\nhereto shall be effective service of process for any action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally\nwaive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in the courts of the State of Delaware or\nthe United States of America located in New Castle County, Delaware, and hereby further irrevocably and unconditionally waive and agree not to\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term “person” means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement (as finally determined by a\ncourt of competent jurisdiction) shall be entitled to recover attorneys’ fees and costs.\n \n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of Feb. 8, 2011 by:\n“Counterparty”\nCOLEMAN CABLE, INC.\nBy: /s/ G. Yetman\nName: Gary Yetman\nTitle:  President and CEO\nCounterparty’s Address:\n1530 Shields Drive\nWaukegan, Illinois 60085\nAttention: G. Gary Yetman, President and Chief Executive Officer\n“Company”\nTECHNOLOGY RESEARCH CORPORATION\nBy: /s/ Robert D. Woltil\nName: Robert D. Woltil\nTitle: VP Finance, CFO and Secretary\nCompany’s Address:\n5250 140th Avenue North\nClearwater, Florida 33760\nAttention: Owen Farren, President and Chief Executive Officer	EX-99.(E).(3) 3 dex99e3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis is a Mutual Non-Disclosure Agreement (this "Agreement"), effective as of the date stated below (the "Effective Date"), between\nTechnology Research Corporation, a Florida corporation (the "Company."), and Coleman Cable, Inc., a Delaware corporation (the "Counterparty.").\nBackground\nThe Parties are considering a potential business transaction (the "Opportunity."), and are entering into this Agreement so that they can share\nconfidential information pertinent to the Opportunity with confidence that the other Party will use such confidential information only to evaluate the\nOpportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The Counterparty and the\nCompany are sometimes referred to individually as a "Party." and collectively as the "Parties."\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n"Confidential Information" means all information concerning or related to the business, operations, results of operations, assets and affairs of a\nDisclosing Party, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating\nmethods, business strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings,\nconcepts, research and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of\nauthorship, know-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists,\ncustomer and prospect lists, and supplier and other customer information and data that the Disclosing Party or its Representatives discloses (or has,\nprior to the date of this Agreement, disclosed) to the Recipient or its Representatives in connection with the Opportunity, however documented or\ndisclosed, together with any copies, extracts, analyses, compilations, studies or other documents prepared or received by the Recipient or its\nRepresentatives, which contain or otherwise reflect such information.\n"Disclosing Party." means the Party furnishing Confidential Information.\n"Opportunity." has the meaning set forth in the Background.\n"Recipient" means the Party receiving Confidential Information.\n"Representatives" means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. Each Party in its capacity as a Recipient agrees to use the Confidential Information provided by the other Party solely for the purpose of\nevaluating the Opportunity, and\nfor no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding the\nforegoing, each Party may disclose such Confidential Information solely to those of its Representatives who (a) require such material for the purpose\nof evaluating the Opportunity on behalf of such Party, and (b) are informed by such Party of the confidential nature of the Confidential Information\nand the obligations of this Agreement and agree to abide by the terms hereof as if they were a Recipient hereunder. Each Party shall take all actions\nnecessary to cause its Representatives and affiliates who receive Confidential Information to comply with the terms of this Agreement as if they\nwere a Recipient. Each Party shall be responsible for any disclosure of Confidential Information by its Representatives other than in accordance with\nthe terms of this Agreement. Each Party acknowledges the confidential and proprietary nature of the Confidential Information provided by the other\nParty and acknowledges and agrees that it is acquiring no rights whatsoever in or to such Confidential Information. For avoidance of doubt, if the\nParties do not consummate a transaction with respect to the Opportunity and terminate discussions, neither Party nor its Representatives may use\nthe\nConfidential Information of the other Party for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that they may\nconduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business and\nto\ncompete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives may contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law may restrict the Counterparty from pledging, selling, hedging, contracting to\nsell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or warrant to\npurchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of material non-\npublic information regarding the Company.\n3. Neither the Counterparty nor any current or future affiliate of the Counterparty, for a period ending on the earlier of (A) the date on which\nthe Parties enter into a definitive agreement with respect to the Opportunity and (B) one year from the date of this Agreement (the "Standstill\nTerm"), shall in any manner, directly or indirectly, without the prior written approval of the Company's Board of Directors: (a) effect or participate in\nor in any way assist, facilitate, encourage or form, join or in any way participate in a "group" (as defined under the rules and regulations of the\nSecurities\nand Exchange Commission) with any other person to effect or seek, offer or propose to effect or participate in (i) any acquisition\nof\nany\nvoting securities (or beneficial ownership thereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any\nassets or businesses of the Company, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution\nor other extraordinary transaction with respect to the Company or any of its subsidiaries or affiliates or (iv) any "solicitation" of "proxies" (as these\nterms are used in the rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company\nor\nany\nof its affiliates; or (b) authorize any of their respective Representatives to, in any manner, directly or indirectly, take any of the actions set forth\nin (a) above. During the Standstill Term, the Counterparty shall use its best efforts to cause its and its current and future affiliates' Representatives to\nnot take, in any\nmanner, directly or indirectly, without the prior written approval of the Company's Board of Directors, any of the actions set forth in (a) above.\nNothing in this Section 3 shall prohibit the Counterparty from making, at any time during the Standstill Term, confidential proposals to the\nCompany's management or board of directors relating to any of the matters set forth in clause (a) above. Notwithstanding anything to the contrary\ncontained in this Agreement, if, at any time during the Standstill Term, (i) any Person (other than the Counterparty) or group of Persons\n(A) commences, or announces an intention to commence, a tender or exchange offer for at least 51% of any class of the Company's securities,\n(B) commences, or announces an intention to commence, a proxy contest or a solicitation of consents with respect to the election of any director or\ndirectors of the Company, (C) acquires beneficial ownership of at least 15% of any class of the Company's securities or (D) enters into, or announces\nan intention to enter into, an agreement with the Company contemplating the acquisition (by way of merger, tender offer or otherwise) of at least\n15% of any class of the Company's securities or all or a substantial portion of the assets of the Company or any of the Company's subsidiaries,\n(ii) the Company commences negotiations with any Person (other than the Counterparty) or group of Persons with respect to any transaction of the\ntype referred to in clause (i) above without entering into with such Person or group of Persons a mutual non-disclosure agreement having provisions\nno\nless restrictive than those set forth in this Agreement (and the Company shall promptly disclose such agreement to the Counterparty) or (iii) the\nCompany releases any Person from restrictions similar to those set forth in this Section 3, then (in any of such cases) the restrictions set forth in\nthis\nSection 3 shall immediately terminate and cease to be of any further force or effect.\n4. Confidential Information does not include information that the Recipient demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Recipient or its Representatives, subsidiaries or affiliates, (b) was properly known to the Recipient, without restriction, prior to\ndisclosure by the Disclosing Party, (c) was properly disclosed to the Recipient by another person, but only if such person is not bound by a\nconfidentiality agreement with the Disclosing Party or is not otherwise restricted from providing such information by a contractual, legal or fiduciary\nduty. Additionally, notwithstanding any other provision of this Agreement, if the Recipient or any Representative of the Recipient is, at any time,\nlegally compelled to disclose any Confidential Information, the Recipient will provide the Disclosing Party with prompt notice thereof so that\nthe\nDisclosing Party may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement.\nIn\nthe absence of a protective order or a waiver from the Disclosing Party, the Recipient or its Representative may comply with such\nlegal\nrequirement\nby disclosing only such Confidential Information as is legally required.\n5. Each Party acknowledges and agrees that neither Party nor any of its Representatives makes any representation or warranty (express or\nimplied) as to the accuracy or completeness of the Confidential Information, except for those express representations and warranties that may be\nmade and set forth in a definitive agreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity, the Parties will promptly return or destroy all Confidential Information received\nunder this Agreement, and all\ncopies, extracts and other objects or items in which such Confidential Information may be contained or embodied, and certify in writing that it has\ncomplied with this requirement.\n7. Without the prior consent of the other Party, neither Party nor its Representatives will initiate contact with any employee of the other Party\nwith respect to the Opportunity. Each Party agrees that, for a period of one year from the Effective Date of this Agreement, such Party will not, and\nwill\nnot\npermit\nany\ncontrolled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for employment\nor hire any employee of the other Party with whom such Party has had contact or who became known to such Party in connection with consideration\nof\nthe Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other similar employment solicitations that\nare not targeted at employees of the other Party.\n8. Each Party will promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information, or any\nother breach of this Agreement by such Party or any of its Representatives, and will cooperate with the other Party to help the other Party regain\npossession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement\nis\nentered\ninto\namong\nthe\nParties,\nneither\nParty\nshall\nhave\nany\nclaims\nwhatsoever\nwith\nrespect\nto\nthe\nOpportunity\nagainst\nthe\nother\nParty\nor\nany\nthird\nperson with whom a transaction is entered into by the other Party. The Counterparty acknowledges that the Company may disclose that it\nis\nexploring strategic alternatives. Nothing in this Agreement shall be deemed to prohibit a Party from: (a) making a public announcement regarding\nthe discussions (or the termination of such discussions) between the parties regarding the Opportunity, provided, however, that, to the extent\npracticable, a Party that intends to make such a public announcement shall discuss any such proposed announcement with the other Party prior to\nmaking such announcement; or (b) making any public announcement that may be required by applicable law, fiduciary duties or obligations pursuant\nto any listing agreement with a national securities exchange. The Parties acknowledge that any disclosures made by them before the Effective Date\nare not subject to the restrictions in this Agreement.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of two years\nfollowing the termination of discussion between the Parties. This Agreement shall terminate automatically if the Company has not given to the\nCounterparty any Confidential Information within ten days of the Effective Date of this Agreement.\n11. Each Party acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the other Party for which damages\nare\nnot an adequate remedy, and that the other Party shall therefore be entitled (without the posting of a bond or other security) to equitable relief in\naddition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Delaware and may be modified or waived only in writing signed by the\nParty against which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the courts of the State of Delaware in New Castle County, Delaware, for any actions, suits or proceedings arising out of or\nrelating to this Agreement (and the Parties agree not to commence any action, suit or proceeding relating thereto, except in such courts), and further\nagree that service of any process, summons, notice or document by U.S. registered mail to the other Party's address set forth next to their signature\nhereto shall be effective service of process for any action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally\nwaive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in the courts of the State of Delaware or\nthe United States of America located in New Castle County, Delaware, and hereby further irrevocably and unconditionally waive and agree not\nto\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term "person" means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement\nis\nfound to be unenforceable, such provision wil be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement (as finally determined by a\ncourt of competent jurisdiction) shall be entitled to recover attorneys' fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of Feb. 8, 2011 by:\n"Counterparty"\nCOLEMAN CABLE, INC.\nBy:\n/s/ G. Yetman\nName: Gary Yetman\nTitle: President and CEO\nCounterparty's Address:\n1530 Shields Drive\nWaukegan, Illinois 60085\nAttention: G. Gary Yetman, President and Chief Executive Officer\n"Company"\nTECHNOLOGY RESEARCH CORPORATION\nBy:\n/s/ Robert D. Woltil\nName: Robert D. Woltil\nTitle:\nVP Finance, CFO and Secretary\nCompany's Address:\n5250 140th Avenue North\nClearwater, Florida 33760\nAttention: Owen Farren, President and Chief Executive Officer	EX-99.(E).(3) 3 dex99e3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis is a Mutual Non-Disclosure Agreement (this “Agreement”), effective as of the date stated below (the “Effective Date”), between\nTechnology Research Corporation, a Florida corporation (the “Company”), and Coleman Cable, Inc., a Delaware corporation (the “Counterparty”).\nBackground\nThe Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that they can share\nconfidential information pertinent to the Opportunity with confidence that the other Party will use such confidential information only to evaluate the\nOpportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The Counterparty and the\nCompany are sometimes referred to individually as a “Party” and collectively as the “Parties.”\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n“Confidential Information” means all information concerning or related to the business, operations, results of operations, assets and affairs of a\nDisclosing Party, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating\nmethods, business strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings,\nconcepts, research and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of\nauthorship, know-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists,\ncustomer and prospect lists, and supplier and other customer information and data that the Disclosing Party or its Representatives discloses (or has,\nprior to the date of this Agreement, disclosed) to the Recipient or its Representatives in connection with the Opportunity, however documented or\ndisclosed, together with any copies, extracts, analyses, compilations, studies or other documents prepared or received by the Recipient or its\nRepresentatives, which contain or otherwise reflect such information.\n“Disclosing Party” means the Party furnishing Confidential Information.\n“Opportunity” has the meaning set forth in the Background.\n“Recipient” means the Party receiving Confidential Information.\n“Representatives” means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. Each Party in its capacity as a Recipient agrees to use the Confidential Information provided by the other Party solely for the purpose of\nevaluating the Opportunity, and\nfor no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding the\nforegoing, each Party may disclose such Confidential Information solely to those of its Representatives who (a) require such material for the purpose\nof evaluating the Opportunity on behalf of such Party, and (b) are informed by such Party of the confidential nature of the Confidential Information\nand the obligations of this Agreement and agree to abide by the terms hereof as if they were a Recipient hereunder. Each Party shall take all actions\nnecessary to cause its Representatives and affiliates who receive Confidential Information to comply with the terms of this Agreement as if they\nwere a Recipient. Each Party shall be responsible for any disclosure of Confidential Information by its Representatives other than in accordance with\nthe terms of this Agreement. Each Party acknowledges the confidential and proprietary nature of the Confidential Information provided by the other\nParty and acknowledges and agrees that it is acquiring no rights whatsoever in or to such Confidential Information. For avoidance of doubt, if the\nParties do not consummate a transaction with respect to the Opportunity and terminate discussions, neither Party nor its Representatives may use the\nConfidential Information of the other Party for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that they may\nconduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business and to\ncompete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives may contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law may restrict the Counterparty from pledging, selling, hedging, contracting to\nsell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or warrant to\npurchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of material non-\npublic information regarding the Company.\n3. Neither the Counterparty nor any current or future affiliate of the Counterparty, for a period ending on the earlier of (A) the date on which\nthe Parties enter into a definitive agreement with respect to the Opportunity and (B) one year from the date of this Agreement (the “Standstill\nTerm”), shall in any manner, directly or indirectly, without the prior written approval of the Company’s Board of Directors: (a) effect or participate in\nor in any way assist, facilitate, encourage or form, join or in any way participate in a “group” (as defined under the rules and regulations of the\nSecurities and Exchange Commission) with any other person to effect or seek, offer or propose to effect or participate in (i) any acquisition of any\nvoting securities (or beneficial ownership thereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any\nassets or businesses of the Company, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution\nor other extraordinary transaction with respect to the Company or any of its subsidiaries or affiliates or (iv) any “solicitation” of “proxies” (as these\nterms are used in the rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or\nany of its affiliates; or (b) authorize any of their respective Representatives to, in any manner, directly or indirectly, take any of the actions set forth\nin (a) above. During the Standstill Term, the Counterparty shall use its best efforts to cause its and its current and future affiliates’ Representatives to\nnot take, in any\nmanner, directly or indirectly, without the prior written approval of the Company’s Board of Directors, any of the actions set forth in (a) above.\nNothing in this Section 3 shall prohibit the Counterparty from making, at any time during the Standstill Term, confidential proposals to the\nCompany’s management or board of directors relating to any of the matters set forth in clause (a) above. Notwithstanding anything to the contrary\ncontained in this Agreement, if, at any time during the Standstill Term, (i) any Person (other than the Counterparty) or group of Persons\n(A) commences, or announces an intention to commence, a tender or exchange offer for at least 51% of any class of the Company’s securities,\n(B) commences, or announces an intention to commence, a proxy contest or a solicitation of consents with respect to the election of any director or\ndirectors of the Company, (C) acquires beneficial ownership of at least 15% of any class of the Company’s securities or (D) enters into, or announces\nan intention to enter into, an agreement with the Company contemplating the acquisition (by way of merger, tender offer or otherwise) of at least\n15% of any class of the Company’s securities or all or a substantial portion of the assets of the Company or any of the Company’s subsidiaries,\n(ii) the Company commences negotiations with any Person (other than the Counterparty) or group of Persons with respect to any transaction of the\ntype referred to in clause (i) above without entering into with such Person or group of Persons a mutual non-disclosure agreement having provisions\nno less restrictive than those set forth in this Agreement (and the Company shall promptly disclose such agreement to the Counterparty) or (iii) the\nCompany releases any Person from restrictions similar to those set forth in this Section 3, then (in any of such cases) the restrictions set forth in this\nSection 3 shall immediately terminate and cease to be of any further force or effect.\n4. Confidential Information does not include information that the Recipient demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Recipient or its Representatives, subsidiaries or affiliates, (b) was properly known to the Recipient, without restriction, prior to\ndisclosure by the Disclosing Party, (c) was properly disclosed to the Recipient by another person, but only if such person is not bound by a\nconfidentiality agreement with the Disclosing Party or is not otherwise restricted from providing such information by a contractual, legal or fiduciary\nduty. Additionally, notwithstanding any other provision of this Agreement, if the Recipient or any Representative of the Recipient is, at any time,\nlegally compelled to disclose any Confidential Information, the Recipient will provide the Disclosing Party with prompt notice thereof so that the\nDisclosing Party may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In\nthe absence of a protective order or a waiver from the Disclosing Party, the Recipient or its Representative may comply with such legal requirement\nby disclosing only such Confidential Information as is legally required.\n5. Each Party acknowledges and agrees that neither Party nor any of its Representatives makes any representation or warranty (express or\nimplied) as to the accuracy or completeness of the Confidential Information, except for those express representations and warranties that may be\nmade and set forth in a definitive agreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity, the Parties will promptly return or destroy all Confidential Information received\nunder this Agreement, and all\ncopies, extracts and other objects or items in which such Confidential Information may be contained or embodied, and certify in writing that it has\ncomplied with this requirement.\n7. Without the prior consent of the other Party, neither Party nor its Representatives will initiate contact with any employee of the other Party\nwith respect to the Opportunity. Each Party agrees that, for a period of one year from the Effective Date of this Agreement, such Party will not, and\nwill not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for employment\nor hire any employee of the other Party with whom such Party has had contact or who became known to such Party in connection with consideration\nof the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other similar employment solicitations that\nare not targeted at employees of the other Party.\n8. Each Party will promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information, or any\nother breach of this Agreement by such Party or any of its Representatives, and will cooperate with the other Party to help the other Party regain\npossession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party. The Counterparty acknowledges that the Company may disclose that it is\nexploring strategic alternatives. Nothing in this Agreement shall be deemed to prohibit a Party from: (a) making a public announcement regarding\nthe discussions (or the termination of such discussions) between the parties regarding the Opportunity, provided, however, that, to the extent\npracticable, a Party that intends to make such a public announcement shall discuss any such proposed announcement with the other Party prior to\nmaking such announcement; or (b) making any public announcement that may be required by applicable law, fiduciary duties or obligations pursuant\nto any listing agreement with a national securities exchange. The Parties acknowledge that any disclosures made by them before the Effective Date\nare not subject to the restrictions in this Agreement.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of two years\nfollowing the termination of discussion between the Parties. This Agreement shall terminate automatically if the Company has not given to the\nCounterparty any Confidential Information within ten days of the Effective Date of this Agreement.\n11. Each Party acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the other Party for which damages\nare not an adequate remedy, and that the other Party shall therefore be entitled (without the posting of a bond or other security) to equitable relief in\naddition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Delaware and may be modified or waived only in writing signed by the\nParty against which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the courts of the State of Delaware in New Castle County, Delaware, for any actions, suits or proceedings arising out of or\nrelating to this Agreement (and the Parties agree not to commence any action, suit or proceeding relating thereto, except in such courts), and further\nagree that service of any process, summons, notice or document by U.S . registered mail to the other Party’s address set forth next to their signature\nhereto shall be effective service of process for any action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally\nwaive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in the courts of the State of Delaware or\nthe United States of America located in New Castle County, Delaware, and hereby further irrevocably and unconditionally waive and agree not to\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term “person” means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement (as finally determined by a\ncourt of competent jurisdiction) shall be entitled to recover attorneys’ fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of Feb. 8, 2011 by:\n“Counterparty”\nCOLEMAN CABLE, INC.\nBy: /s/ G. Yetman\nName: Gary Yetman\nTitle: President and CEO\nCounterparty’s Address:\n1530 Shields Drive\nWaukegan, Illinois 60085\nAttention: G. Gary Yetman, President and Chief Executive Officer\n“Company”\nTECHNOLOGY RESEARCH CORPORATION\nBy: /s/ Robert D. Woltil\nName: Robert D. Woltil\nTitle: VP Finance, CFO and Secretary\nCompany’s Address:\n5250 140th Avenue North\nClearwater, Florida 33760\nAttention: Owen Farren, President and Chief Executive Officer
370f080c689b6c4bdd2c88b7de244d76.pdf	effective_date jurisdiction party	MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into this 31st day of May , 2005 by and between the undersigned (the\n"CDW Contracting Party") and Promark Technology, Inc. under the following terms and conditions:\n1.\nNature and Purpose. The parties to this Agreement desire\nto engage in certain business arrangements and/or\ncontractual relationships which may involve the disclosure\nof financial, proprietary, competitively sensitive, and/or\nmarket sensitive information and/or contain trade secrets.\nThe purpose of this Agreement is to define their rights and\nobligations with respect to such information. This\nAgreement does not obligate either party to disclose any\ninformation to the other or to enter into any other\nagreement or arrangement, nor shall it be construed as\ngranting any rights by license or otherwise in any trade\nsecrets or other intellectual property rights of either party.\nAs provided for herein, the parties' obligations under this\nAgreement shall survive the termination of their business\narrangements and/or contractual relationships, regardless\nof the manner of such termination.\n2.\nConfidential Information. Either party ("Discloser") may at\nits option make available to the other party ("Recipient") in\nthe performance of this Agreement information of a\nconfidential or proprietary nature to such party, including\ninformation of its affiliates or of a third party (hereinafter\nreferred to as "Confidential Information"). As used in this\nAgreement, the Confidential Information shall mean any\ninformation or data in oral and/or written form which\nRecipient knows or has reason to know is Confidential\nInformation and which is disclosed in connection with this\nAgreement or which Recipient may have access to in\nconnection with this Agreement, including but not limited to\nbusiness and marketing plans, strategic alliances, cost or\npricing data, the identities of customers and prospective\ncustomers. To the extent practicable, Confidential\nInformation shall be clearly identified or labeled as such at\nthe time of disclosure or as promptly thereafter as\npossible, however, failure to so identify or label such\nConfidential Information shall not be evidence that such\ninformation is not proprietary or protectable. Confidential\nInformation shall not include any information which (a) was\nrightfully in the possession of Recipient prior to disclosure\nby Discloser; (b) was or is independently developed by\nRecipient without use of the Confidential Information; (c) is\nnow or hereafter becomes available to the public other\nthan as a result of disclosure by Recipient in violation of\nthis Agreement; or (d) becomes available to Recipient on a\nnon-confidential basis from a source other than Discloser\nand such source was under no obligation to Discloser to\nkeep such information confidential.\n3.\nDegree of Care. Recipient shall maintain the Confidential\nInformation using the same degree of care as it uses to\nprotect its own confidential and proprietary information but\nin any case using no less than a reasonable degree of\ncare. In addition, Recipient shall not use the Confidential\nInformation received from Discloser for its own benefit or,\nexcept as expressly provided for herein, disclose the\nConfidential Information to third parties without the prior\nwritten consent of an authorized representative of\nDiscloser.\n4.\nDisclosure. Recipient agrees to disclose the Confidential\nInformation only to its directors, officers, employees,\nagents, independent contractors and consultants who\nhave a need to know the Confidential Information as\nrequired in furtherance of the objectives of the business\nrelationship between the parties, and with respect to\nindependent contractors and consultants, only those who\nhave agreed to substantially similar non-disclosure\nobligations as those contained herein. Notwithstanding the\nforegoing, the CDW Contracting Party may disclose the\nConfidential Information to its affiliates and their directors,\nofficers, employees and agents who may also have a need\nto know the Confidential Information in furtherance of the\nbusiness relationship.\n[***] – Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with\nthe Securities and Exchange Commission.\n1.\nLegal Action Requiring Disclosure. If Recipient is\nrequired by law, rule or regulation, or requested in any\njudicial or administrative proceeding or by any\ngovernmental or regulatory authority, to disclose the\nConfidential Information, Recipient shall give Discloser\nprompt notice of such request so that Discloser may seek\nan appropriate protective order or similar protective\nmeasure. Upon Discloser's written request Recipient shall,\nat Discloser's expense, cooperate with Discloser in\nseeking such order or similar protective measure. If\nRecipient is nonetheless compelled to disclose the\nConfidential Information, Recipient shall disclose only that\nportion of the Confidential Information, which Recipient is\nlegally required to disclose and upon Discloser's request\nand expense, shall use reasonable efforts to obtain\nassurances that confidential treatment will be accorded to\nsuch Confidential Information to the extent such\nassurances are available.\n2.\nReturn Or Destruction Of Confidential Information.\nRecipient is hereby authorized to make only the number of\ncopies of the Confidential Information necessary to\ndisseminate the Confidential Information to those who are\nentitled to have access to it, and ensure that all\nconfidentiality notices set forth on the Confidential\nInformation are reproduced in full on such copies. At the\nwritten request of Discloser, Recipient agrees to return or,\nat Discloser's sole discretion, destroy all materials in its\npossession and control, which contain any Confidential\nInformation and shall, at Discloser's written request, certify\nin writing to Discloser that all copies (in any form or media)\nhave been destroyed or returned to Discloser.\n3.\nLimitation On Use. Recipient shall use the Confidential\nInformation only in connection with the furtherance of the\nbusiness relationship between the parties, and Recipient\nshall make no further use, in whole or in part, of any\nConfidential Information. However, nothing in this\nAgreement shall restrict Discloser from using, disclosing,\nor disseminating its own Confidential Information in any\nway.\n4.\nInjunctive Relief. Each party acknowledges that\nunauthorized disclosure or use of the Confidential\nInformation by Recipient may cause irreparable harm and\ndamage to the business of Discloser which may be difficult\nto ascertain and which may not be adequately\ncompensated by damages at law. Therefore, each party\nagrees that, in the event of a breach or threatened breach\nof the terms of this Agreement, Discloser shall be entitled\nto an injunction prohibiting any unauthorized disclosure or\nuse of its Confidential Information. Any such injunctive\nrelief shall be in addition to, and not in lieu of, any\nappropriate monetary damages.\n5.\nTerm of Confidentiality. Recipient shall maintain the\nConfidential Information III accordance with this\nAgreement for a period of five (5) years from the date of\ndisclosure.\n6.\nValidity. In the event of the invalidity or unenforceability of\nany provision of this Agreement under applicable law, the\nparties agree that such invalidity or unenforceability shall\nnot affect the validity or enforceability of the remaining\nportions of this Agreement.\n[***] – Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with\nthe Securities and Exchange Commission.\n1.\nAssignment. This Agreement shall not be assigned by\neither party without the prior written consent of the other\nparty, and any purported assignment without such consent\nshall be void. This approval requirement shall not apply to\nthe assignment to any successor corporation in the event\nof a merger or acquisition. In addition, the CDW\nContracting Party shall have the right, without consent, to\nassign any or all of its rights and obligations under this\nAgreement to any of its affiliates. Subject to the foregoing,\nthis Agreement shall be binding upon and inure to the\nbenefit of the parties' successors in interest.\n2.\nMiscellaneous. This Agreement constitutes the entire\nagreement between the parties with respect to the subject\nmatter hereof, and shall supersede all previous\ncommunications, representations, understandings, and\nagreements, either oral or written, between the parties\nthereof. This Agreement may not be changed or modified\nexcept by a written agreement signed by the parties\nhereto. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of\nIllinois without regard to its conflicts of law rules. Any\naction arising out of a dispute between the parties shall be\nbrought in the courts located in Cook County, Illinois and\neach party consents to the jurisdiction of the federal and\nstate courts located in Cook County, Illinois and submits to\nthe jurisdiction thereof and waives the right to change\nvenue.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of\nthe date and year first set forth above.\nPROMARK TECHNOLOGY, INC.\nTHE CDW CONTRACTING PARTY\nBy:\nBy:\nName : Dale R. Foster\nName :\nTitle: President\nTitle:\nAddress: 10810 Guilford Road, Suite 101 Address:\nAddress:\nAnnapolis Junction, MD 20701	MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into this 315tday of May , 2005 by and between the undersigned (the\n"CDW Contracting Party") and Promark Technology, Inc. underthe following terms and conditions:\nNature and Purpose. The parties to this Agreement desire\nto engage in certain business arrangements and/or\ncontractual relationships which may involve the disclosure\nof financial, proprietary, competitively sensitive, and/or\nmarket sensitive information and/or contain trade secrets.\nThe purpose of this Agreement is to define their rights and\nobligations with respect to such information. This\nAgreement does not obligate either party to disclose any\ninformation to the other or to enter into any other\nagreementor arrangement, nor shall it be construed as\ngranting any rights by license or otherwise in any trade\nsecrets or other intellectual property rights of either party.\nAs provided for herein, the parties' obligations under this\nAgreement shall survive the termination of their business\narrangements and/or contractual relationships, regardless\nof the manner of such termination.\nConfidential Information. Either party ("Discloser") may at\nits option make available to the other party ("Recipient") in\nthe performance of this Agreement information of a\nconfidential or proprietary nature to such party, including\ninformation of its affiliates or of a third party (hereinafter\nreferred to as "Confidential Information"). As used in this\nAgreement, the Confidential Information shall mean any\ninformation or data in oral and/or written form which\nRecipient knows or has reason to know is Confidential\nInformation and which is disclosed in connection with this\nAgreement or which Recipient may have access to in\nconnection with this Agreement, including but not limited to\nbusiness and marketing plans, strategic alliances, cost or\npricing data, the identities of customers and prospective\ncustomers. To the extent practicable, Confidential\nInformation shall be clearly identified or labeled as such at\nthe time of disclosure or as promptly thereafter as\npossible, however, failure to so identify or label such\nConfidential Information shall not be evidence that such\ninformation is not proprietary or protectable. Confidential\nInformation shall not include any information which (a) was\nrightfully in the possession of Recipient prior to disclosure\nby Discloser; (b) was or is independently developed by\nRecipient without use of the Confidential Information; (c) is\nnow or hereafter becomes available to the public other\nthan as a result of disclosure by Recipient in violation of\nthis Agreement; or (d) becomes available to Recipient on a\nnon-confidential basis from a source otherthan Discloser\nand such source was under no obligation to Discloserto\nkeep such information confidential.\nDegree of Care. Recipient shall maintain the Confidential\nInformation using the same degree of care as it uses to\nprotect its own confidential and proprietary information but\nin any case using no less than a reasonable degree of\ncare. In addition, Recipient shall not use the Confidential\nInformation received from Discloser for its own benefit or,\nexcept as expressly provided for herein, disclose the\nConfidential Information to third parties withoutthe prior\nwritten consent of an authorized representative of\nDiscloser.\nDisclosure. Recipient agrees to disclose the Confidential\nInformation only to its directors, officers, employees,\nagents, independentcontractors and consultants who\nhave a need to know the Confidential Information as\nrequired in furtherance of the objectives ofthe business\nrelationship between the parties, and with respect to\nindependentcontractors and consultants, only those who\nhave agreed to substantially similar non-disclosure\nobligations as those contained herein. Notwithstanding the\nforegoing, the CDW Contracting Party may disclose the\nConfidential Information to its affiliates and their directors,\nofficers, employees and agents who may also have a need\nto know the Confidential Information in furtherance of the\nbusiness relationship.\n[***] — Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with\nthe Securities and Exchange Commission.\nLegal Action Requiring Disclosure. If Recipient is\nrequired bylaw, rule or regulation, or requested in any\njudicial or administrative proceeding or by any\ngovernmental or regulatory authority, to disclose the\nConfidential Information, Recipientshall give Discloser\nprompt notice of such request so that Discloser may seek\nan appropriate protective order or similar protective\nmeasure. Upon Discloser's written request Recipient shall,\nat Discloser's expense, cooperate with Discloser in\nseeking such order or similar protective measure. If\nRecipient is nonetheless compelled to disclose the\nConfidential Information, Recipient shall disclose only that\nportion of the Confidential Information, which Recipient is\nlegally required to disclose and upon Discloser's request\nand expense, shall use reasonable efforts to obtain\nassurances that confidential treatment will be accorded to\nsuch Confidential Information to the extent such\nassurances are available.\nReturn 0r Destruction 0f Confidential Information.\nRecipient is hereby authorized to make only the number of\ncopies of the Confidential Information necessary to\ndisseminate the Confidential Information to those who are\nentitled to have access to it, and ensure thatall\nconfidentiality notices set forth on the Confidential\n2. Information are reproduced in full on such copies. Atthe\nwritten requestof Discloser, Recipientagrees to return or,\nat Discloser's sole discretion, destroy all materials in its\npossession and control, which contain any Confidential\nInformation and shall, at Discloser's written request, certify\nin writing to Discloserthat all copies (in any form or media)\nhave been destroyed or returned to Discloser.\nLimilation 0n Use. Recipient shall use the Confidential\nInformation only in connection with the furtherance of the\nbusiness relationship between the parties, and Recipient\nshall make no further use, in whole or in part, ofany\nConfidential Information. However, nothing in this\nAgreement shall restrict Discloserfrom using, disclosing,\nor disseminating its own Confidential Information in any\nway.\nlnjunctive Relief. Each party acknowledges that\nunauthorized disclosure or use of the Confidential\nInformation by Recipient may cause irreparable harm and\ndamage to the business of Discloserwhich may be difficult\nto ascertain and which may not be adequately\ncompensated by damages at law. Therefore, each party\nagrees that, in the event ofa breach orthreatened breach\nof the terms of this Agreement, Discloser shall be entitled\nto an injunction prohibiting any unauthorized disclosure or\nuse of its Confidential Information. Any such injunctive\nrelief shall be in addition to, and not in lieu of, any\nappropriate monetary damages.\nTerm of Confidentiality. Recipient shall maintain the\nConfidential Information III accordance with this\nAgreement for a period of five (5) years from the date of\ndisclosure.\nValidity. In the event of the invalidity or unenforceability of\nany provision of this Agreement under applicable law, the\nparties agree that such invalidity or unenforceability shall\nnot affect the validity or enforceability of the remaining\nportions of this Agreement.\n[***] — Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with the Securities and Exchange Commission.\nAssignment. This Agreement shall not be assigned by\neither party without the prior written consent of the other\nparty, and any purported assignment without such consent\nshall be void. This approval requirement shall not apply to\nthe assignment to any successor corporation in the event\nofa merger or acquisition. In addition, the CDW\nContracting Party shall have the right, without consent, to\nassign any or all of its rights and obligations under this\nAgreement to any of its affiliates. Subject to the foregoing,\nthis Agreement shall be binding upon and inure to the\nbenefit of the parties' successors in interest.\nMiscellaneous. This Agreement constitutes the entire\nagreement between the parties with respectto the subject\nmatter hereof, and shall supersede all previous\ncommunications, representations, understandings, and\nagreements, either oral or written, between the parties\nthereof. This Agreement may not be changed or modified\nexcept by a written agreement signed by the parties\nhereto. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of\nIllinois without regard to its conflicts of law rules. Any\naction arising outofa dispute between the parties shall be\nbrought in the courts located in Cook County, Illinois and\neach party consents to the jurisdiction of the federal and\nstate courts located in Cook County, Illinois and submits to\nthe jurisdiction thereof and waives the right to change\nvenue.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of the date and year first set forth above.\nPROMARK TECHNOLOGY, INC.\nBy:\nName : Dale R. Foster\nTitle: President\nAddress: 10810 Guilford Road, Suite 101 Address: Annapolisj unction, MD 20701\nTHE CDW CONTRACTING PARTY\nBy:\nName:\nTitle:\nAddress:	MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into this 31st day of May 2005 by and between the undersigned (the\n"CDW Contracting Party") and Promark Technology, Inc. under the following terms and conditions:\nNature and Purpose. The parties to this Agreement desire\nto engage in certain business arrangements and/or\ncontractual relationships which may involve the disclosure\nof financial, proprietary, competitively sensitive, and/or\nmarket sensitive information and/or contain trade secrets.\nThe purpose of this Agreement is to define their rights and\nobligations with respect to such information. This\n1.\nAgreement does not obligate either party to disclose any\ninformation to the other or to enter into any other\nagreement or arrangement, nor shall it be construed as\ngranting any rights by license or otherwise in any trade\nsecrets or other intellectual property rights of either party.\nAs provided for herein, the parties' obligations under this\nAgreement shall survive the termination of their business\narrangements and/or contractual relationships, regardless\nof the manner of such termination.\nConfidential Information. E ither party ("Discloser") may at\nits option make available to the other party "Recipient") in\nthe performance of this Agreement information of a\nconfidential or proprietary nature to such party, including\ninformation of its affiliates or of a third party (hereinafter\nreferred to as "Confidential Information"). As used in this\nAgreement, the Confidential Information shall mean any\ninformation or data in oral and/or written form which\nR ecipient knows or has reason to know is Confidential\nInformation and which is disclosed in connection with this\nAgreement or which Recipient may have access to in\nconnection with this Agreement, including but not limited to\nbusiness and marketing plans, strategic alliances, cost or\npricing data, the identities of customers and prospective\n2.\ncustomers. To the extent practicable, Confidentia\nInformation shall be clearly identified or labeled as such at\nthe time of disclosure or as promptly thereafter as\npossible, however, failure to so identify or label such\nConfidential Information shall not be evidence that such\ninformation is not proprietary or protectable. Confidential\nInformation shall not include any information which (a) was\nrightfully in the possession of R ecipient prior to disclosure\nby Discloser; (b) was or is independently developed by\nR ecipient without use of the Confidential Information; (c) is\nnow or hereafter becomes available to the public other\nthan as a result of disclosure by Recipient in violation of\nthis Agreement; or (d) becomes available to Recipient on a\nnon-confidential basis from a source other than Discloser\nand such source was under no obligation to Discloser to\nkeep such information confidential.\nDegree of Care. Recipient shall maintain the Confidential\nInformation using the same degree of care as it uses to\nprotect its own confidential and proprietary information but\nin any case using no less than a reasonable degree of\n3.\ncare. In addition, Recipient shall not use the Confidential\nInformation received from Discloser for its own benefit or,\nexcept as expressly provided for herein, disclose the\nConfidential Information to third parties without the prior\nwritten consent of an authorized representative of\nDiscloser.\nDisclosure. Recipient agrees to disclose the Confidential\nInformation only to its directors, officers, employees,\nagents, independent contractors and consultants who\nhave a need to know the Confidential Information as\nrequired in furtherance of the objectives of the business\nrelationship between the parties, and with respect to\nindependent contractors and consultants, only those who\n4.\nhave agreed to substantially similar non-disclosure\nobligations as those contained herein. Notwithstanding the\nforegoing, the CDW Contracting Party may disclose the\nConfidential Information to its affiliates and their directors,\nofficers, employees and agents who may also have a need\nto know the Confidentia Information in furtherance of the\nbusiness relationship.\n[**k*] Indicates omission pursuant to a request for confidentia treatment. The omitted text has been filed separately with\nthe S ecurities and E xchange Commission.\nLegal Action Requiring Disclosure. If Recipient is\nrequired by law, rule or regulation, or requested in any\njudicial or administrative proceeding or by any\ngovernmental or regulatory authority, to disclose the\nConfidential Information, Recipient shall give Discloser\nprompt notice of such request so that Discloser may seek\nan appropriate protective order or similar protective\nmeasure. Jpon Discloser's written request R ecipient shall,\n1.\nat Discloser's expense, cooperate with Discloser in\nseeking such order or similar protective measure. If\nR ecipient is nonetheless compelled to disclose the\nConfidential Information, Recipient shall disclose only that\nportion of the Confidential Information, which Recipient is\nlegally required to disclose and upon Discloser's request\nand expense, shall use reasonable efforts to obtain\nassurances that confidential treatment will be accorded to\nsuch Confidential Information to the extent such\nassurances are available.\nReturn Or Destruction Of Confidential Information.\nR ecipient is hereby authorized to make only the number of\ncopies of the Confidentia Information necessary to\ndisseminate the Confidential Information to those who are\nentitled to have access to it, and ensure that all\nconfidentiality notices set forth on the Confidential\n2.\nInformation are reproduced in full on such copies. At the\nwritten request of Discloser, Recipient agrees to return or,\nat Discloser's sole discretion, destroy all materials in its\npossession and control, which contain any Confidential\nInformation and shall, at Discloser's written request, certify\nin writing to Discloser that all copies (in any form or media)\nhave been destroyed or returned to Discloser.\nLimitation On Use. Recipient shall use the Confidentia\nInformation only in connection with the furtherance of the\nbusiness relationship between the parties, and R ecipient\n3.\nshall make no further use, in whole or in part, of any\nConfidentia Information. However, nothing in this\nAgreement shall restrict Discloser from using, disclosing,\nor disseminating its own Confidential Information in any\nway.\nInjunctive Relief. Each party acknowledges that\nunauthorized disclosure or use of the Confidential\nInformation by Recipient may cause irreparable harm and\ndamage to the business of Discloser which may be difficult\nto ascertain and which may not be adequately\n4.\ncompensated by damages at law. Therefore, each party\nagrees that, in the event of a breach or threatened breach\nof the terms of this Agreement, Discloser shall be entitled\nto an injunction prohibiting any unauthorized disclosure or\nuse of its Confidential Information. Any such injunctive\nrelief shall be in addition to, and not in lieu of, any\nappropriate monetary damages.\nTerm of Confidentiality. Recipient shall maintain the\nConfidential Information III accordance with this\n5.\nAgreement for a period of five (5) years from the date of\ndisclosure.\nValidity. In the event of the invalidity or unenforceability of\nany provision of this Agreement under applicable law, the\n6. parties agree that such invalidity or unenforceability shall\nnot affect the validity or enforceability of the remaining\nportions of this Agreement.\n[***] Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with\nthe ecurities and Exchange Commission.\nAssignment. This Agreement shall not be assigned by\neither party without the prior written consent of the other\nparty, and any purported assignment without such consent\nshall be void. This approval requirement shall not apply to\nthe assignment to any successor corporation in the event\n1.\nof a merger or acquisition. In addition, the CDW\nContracting Party shall have the right without consent, to\nassign any or all of its rights and obligations under this\nAgreement to any of its affiliates. Subject to the foregoing,\nthis Agreement shall be binding upon and inure to the\nbenefit of the parties' successors in interest.\nMiscellaneous. This Agreement constitutes the entire\nagreement between the parties with respect to the subject\nmatter hereof, and shal supersede all previous\ncommunications, representations, understandings, and\nagreements, either ora or written, between the parties\nthereof. This Agreement may not be changed or modified\nexcept by a written agreement signed by the parties\nhereto. This Agreement shall be governed by and\n2.\nconstrued in accordance with the laws of the State of\nlllinois without regard to its conflicts of law rules. Any\naction arising out of a dispute between the parties shal be\nbrought in the courts located in Cook County, lllinois and\neach party consents to the jurisdiction of the federal and\nstate courts located in Cook County, lllinois and submits to\nthe jurisdiction thereof and waives the right to change\nvenue.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of\nthe date and year first set forth above.\nPROMARK TECHNOLOGY, INC.\nTHE CDW CONTRACTING PARTY\nBy:\nBy:\nName Dale R. Foster\nName\nTitle: President\nTitle:\nAddress: 10810 Guilford Road, Suite 101 Address:\nAddress:\nAnnapolis J unction, MD 20701	MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into this 31st day of May , 2005 by and between the undersigned (the\n"CDW Contracting Party") and Promark Technology, Inc. under the following terms and conditions:\n1.\nNature and Purpose. The parties to this Agreement desire\nto engage in certain business arrangements and/or\ncontractual relationships which may involve the disclosure\nof financial, proprietary, competitively sensitive, and/or\nmarket sensitive information and/or contain trade secrets.\nThe purpose of this Agreement is to define their rights and\nobligations with respect to such information. This\nAgreement does not obligate either party to disclose any\ninformation to the other or to enter into any other\nagreement or arrangement, nor shall it be construed as\ngranting any rights by license or otherwise in any trade\nsecrets or other intellectual property rights of either party.\nAs provided for herein, the parties' obligations under this\nAgreement shall survive the termination of their business\narrangements and/or contractual relationships, regardless\nof the manner of such termination.\n2.\nConfidential Information. Either party ("Discloser") may at\nits option make available to the other party ("Recipient") in\nthe performance of this Agreement information of a\nconfidential or proprietary nature to such party, including\ninformation of its affiliates or of a third party (hereinafter\nreferred to as "Confidential Information"). As used in this\nAgreement, the Confidential Information shall mean any\ninformation or data in oral and/or written form which\nRecipient knows or has reason to know is Confidential\nInformation and which is disclosed in connection with this\nAgreement or which Recipient may have access to in\nconnection with this Agreement, including but not limited to\nbusiness and marketing plans, strategic alliances, cost or\npricing data, the identities of customers and prospective\ncustomers. To the extent practicable, Confidential\nInformation shall be clearly identified or labeled as such at\nthe time of disclosure or as promptly thereafter as\npossible, however, failure to so identify or label such\nConfidential Information shall not be evidence that such\ninformation is not proprietary or protectable. Confidential\nInformation shall not include any information which (a) was\nrightfully in the possession of Recipient prior to disclosure\nby Discloser; (b) was or is independently developed by\nRecipient without use of the Confidential Information; (c) is\nnow or hereafter becomes available to the public other\nthan as a result of disclosure by Recipient in violation of\nthis Agreement; or (d) becomes available to Recipient on a\nnon-confidential basis from a source other than Discloser\nand such source was under no obligation to Discloser to\nkeep such information confidential.\n3.\nDegree of Care. Recipient shall maintain the Confidential\nInformation using the same degree of care as it uses to\nprotect its own confidential and proprietary information but\nin any case using no less than a reasonable degree of\ncare. In addition, Recipient shall not use the Confidential\nInformation received from Discloser for its own benefit or,\nexcept as expressly provided for herein, disclose the\nConfidential Information to third parties without the prior\nwritten consent of an authorized representative of\nDiscloser.\n4.\nDisclosure. Recipient agrees to disclose the Confidential\nInformation only to its directors, officers, employees,\nagents, independent contractors and consultants who\nhave a need to know the Confidential Information as\nrequired in furtherance of the objectives of the business\nrelationship between the parties, and with respect to\nindependent contractors and consultants, only those who\nhave agreed to substantially similar non-disclosure\nobligations as those contained herein. Notwithstanding the\nforegoing, the CDW Contracting Party may disclose the\nConfidential Information to its affiliates and their directors,\nofficers, employees and agents who may also have a need\nto know the Confidential Information in furtherance of the\nbusiness relationship.\n[***] – Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with\nthe Securities and Exchange Commission.\n1.\nLegal Action Requiring Disclosure. If Recipient is\nrequired by law, rule or regulation, or requested in any\njudicial or administrative proceeding or by any\ngovernmental or regulatory authority, to disclose the\nConfidential Information, Recipient shall give Discloser\nprompt notice of such request so that Discloser may seek\nan appropriate protective order or similar protective\nmeasure. Upon Discloser's written request Recipient shall,\nat Discloser's expense, cooperate with Discloser in\nseeking such order or similar protective measure. If\nRecipient is nonetheless compelled to disclose the\nConfidential Information, Recipient shall disclose only that\nportion of the Confidential Information, which Recipient is\nlegally required to disclose and upon Discloser's request\nand expense, shall use reasonable efforts to obtain\nassurances that confidential treatment will be accorded to\nsuch Confidential Information to the extent such\nassurances are available.\n2.\nReturn Or Destruction Of Confidential Information.\nRecipient is hereby authorized to make only the number of\ncopies of the Confidential Information necessary to\ndisseminate the Confidential Information to those who are\nentitled to have access to it, and ensure that all\nconfidentiality notices set forth on the Confidential\nInformation are reproduced in full on such copies. At the\nwritten request of Discloser, Recipient agrees to return or,\nat Discloser's sole discretion, destroy all materials in its\npossession and control, which contain any Confidential\nInformation and shall, at Discloser's written request, certify\nin writing to Discloser that all copies (in any form or media)\nhave been destroyed or returned to Discloser.\n3.\nLimitation On Use. Recipient shall use the Confidential\nInformation only in connection with the furtherance of the\nbusiness relationship between the parties, and Recipient\nshall make no further use, in whole or in part, of any\nConfidential Information. However, nothing in this\nAgreement shall restrict Discloser from using, disclosing,\nor disseminating its own Confidential Information in any\nway.\n4.\nInjunctive Relief. Each party acknowledges that\nunauthorized disclosure or use of the Confidential\nInformation by Recipient may cause irreparable harm and\ndamage to the business of Discloser which may be difficult\nto ascertain and which may not be adequately\ncompensated by damages at law. Therefore, each party\nagrees that, in the event of a breach or threatened breach\nof the terms of this Agreement, Discloser shall be entitled\nto an injunction prohibiting any unauthorized disclosure or\nuse of its Confidential Information. Any such injunctive\nrelief shall be in addition to, and not in lieu of, any\nappropriate monetary damages.\n5.\nTerm of Confidentiality. Recipient shall maintain the\nConfidential Information III accordance with this\nAgreement for a period of five (5) years from the date of\ndisclosure.\n6.\nValidity. In the event of the invalidity or unenforceability of\nany provision of this Agreement under applicable law, the\nparties agree that such invalidity or unenforceability shall\nnot affect the validity or enforceability of the remaining\nportions of this Agreement.\n[***] – Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with\nthe Securities and Exchange Commission.\n1.\nAssignment. This Agreement shall not be assigned by\neither party without the prior written consent of the other\nparty, and any purported assignment without such consent\nshall be void. This approval requirement shall not apply to\nthe assignment to any successor corporation in the event\nof a merger or acquisition. In addition, the CDW\nContracting Party shall have the right, without consent, to\nassign any or all of its rights and obligations under this\nAgreement to any of its affiliates. Subject to the foregoing,\nthis Agreement shall be binding upon and inure to the\nbenefit of the parties' successors in interest.\n2.\nMiscellaneous. This Agreement constitutes the entire\nagreement between the parties with respect to the subject\nmatter hereof, and shall supersede all previous\ncommunications, representations, understandings, and\nagreements, either oral or written, between the parties\nthereof. This Agreement may not be changed or modified\nexcept by a written agreement signed by the parties\nhereto. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of\nIllinois without regard to its conflicts of law rules. Any\naction arising out of a dispute between the parties shall be\nbrought in the courts located in Cook County, Illinois and\neach party consents to the jurisdiction of the federal and\nstate courts located in Cook County, Illinois and submits to\nthe jurisdiction thereof and waives the right to change\nvenue.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of\nthe date and year first set forth above.\nPROMARK TECHNOLOGY, INC.\nTHE CDW CONTRACTING PARTY\nBy:\nBy:\nName : Dale R. Foster\nName :\nTitle: President\nTitle:\nAddress: 10810 Guilford Road, Suite 101 Address:\nAddress:\nAnnapolis Junction, MD 20701
376f9746de69416a9561e92517c356ee.pdf	effective_date jurisdiction party term	EX-10.32 23 c15909a1exv10w32.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.32\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Joseph Chalhoub)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 24th day of August, 1999, by and between\nJoseph Chalhoub, a resident of Westmount, Quebec (“Executive”), and Heritage-Crystal Clean, LLC, an Indiana limited liability company\n(“Crystal Clean”);\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its President and Chief Executive Officer and as a result\nof his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean’s business information and confidential data;\nand\nWHEREAS, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon Executive’s\nentering into an Executive Employment Agreement (“Employment Agreement”) and this Non-Competition and Non-Disclosure Agreement;\nNOW THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and the\nEmployment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and certain of its\naffiliates, partners and their beneficiaries (collectively, “Heritage”) to organize Crystal Clean, is good and sufficient consideration for Executive’s\ncovenants, agreements and forebearances contained in this Agreement and that Heritage would not have organized Crystal Clean and allowed\nExecutive to subscribe for Units but for Executive’s entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with Crystal Clean\nand/or its subsidiaries, disclose to any person, firm or corporation, any confidential information concerning Crystal Clean or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which Executive is subpoenaed to give\ntestimony, in which event Executive shall notify Crystal Clean immediately upon learning that Executive may be required or compelled to\ndivulge any confidential information. For purposes of this Agreement, “confidential information” consists of that proprietary information subject\nto protection under the Uniform Trade Secrets Act and includes, without limitation, Crystal Clean’s customer list and price information for all\ncustomers and other intangible property to be transferred to Crystal Clean by Heritage. “Confidential information” does not include\n1\ninformation in the public domain through no fault of the Executive or reasonably discoverable without access to internal documents or\ninformation.\n(3) Non Competition. During the term of Executives’s employment with Crystal Clean, and for a period of one (1) year from the date of\nExecutive’s Termination of Employment under the Employment Agreement (“Restricted Period”), Executive will not, other than for the\nexclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal Clean conducts Business\nduring the term of Executive’s employment with Crystal Clean (“Territory”), whether as an employee, owner (except as provided below in\nSection 5), member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this Agreement, the term\n“Business” means the business of providing environmental and fluid management services to small and medium sized customers and providing\nparts washing and drum disposal services (“Business”).\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, Executive will not personally call on any person or business organization\nwhich was a customer of Crystal Clean during the Executive’s term of employment for Business within the Territory. Further, during the\nRestricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own account or for any third party, solicit or\nendeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean during the twelve (12) month period\nimmediately before the termination of Executive’s employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business endeavors during\nthe Restricted Period or may engage in the Business outside of the Territory; provided that Executive’s other permitted services will not be\ndeemed to allow Executive to use or disclose “Confidential Information” in contravention of this Agreement or other agreements between\nExecutive and Crystal Clean. Executive may continue to own shares of Clean Harbors, Inc. in an amount not in excess often percent (10%) of the\nissued and outstanding common equity or voting interests.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails to perform\nfully its obligations under this Agreement (“Default”), each Default shall cause immediate and irreparable harm to Crystal Clean, in a manner\nwhich cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the event of any such Default, Crystal Clean, in\naddition to all other available remedies at law or in equity, may, insofar as Executive may be concerned, be entitled to temporary, preliminary and\npermanent injunctive relief to restrain such Default(s) by Executive or others acting in concert with Executive, and to all of its costs, expenses,\nand reasonable attorneys’ fees incurred in any enforcement proceedings in which Crystal Clean prevails in whole or in part. Nothing contained\nherein shall restrict or limit in any manner Crystal Clean’s right to obtain any form of relief, legal or equitable, in an action brought to enforce\nCrystal Clean’s rights.\n2\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in any respect,\nsuch finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. Crystal Clean and Executive\nagree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its enforcement to the\nmaximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of exclusive jurisdiction\nand venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by Crystal Clean, and\nExecutive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of this Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 17 of the Employment Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or representations by or among the parties, written or oral with regard to the subject matter of this Agreement.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year first above\nwritten.\n3\nExecutive\n/s/ Joseph Chalhoub\nJoseph Chalhoub\nHeritage-Crystal Clean, LLC:\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4	EX-10.32 23 c15909alexv10w32.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.32\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Joseph Chalhoub)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 24th day of August, 1999, by and between\nJoseph Chalhoub, a resident of Westmount, Quebec (“Executive”), and Heritage-Crystal Clean, LL.C, an Indiana limited liability company\n(“Crystal Clean™);\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its President and Chief Executive Officer and as a result\nof his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean’s business information and confidential data;\nand\nWHEREAS, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon Executive’s\nentering into an Executive Employment Agreement (“Employment Agreement”) and this Non-Competition and Non-Disclosure Agreement;\nNOW THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and the\nEmployment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and certain of its\naffiliates, partners and their beneficiaries (collectively, “Heritage”) to organize Crystal Clean, is good and sufficient consideration for Executive’s\ncovenants, agreements and forebearances contained in this Agreement and that Heritage would not have organized Crystal Clean and allowed\nExecutive to subscribe for Units but for Executive’s entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with Crystal Clean\nand/or its subsidiaries, disclose to any person, firm or corporation, any confidential information concerning Crystal Clean or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which Executive is subpoenaed to give\ntestimony, in which event Executive shall notify Crystal Clean immediately upon learning that Executive may be required or compelled to\ndivulge any confidential information. For purposes of this Agreement, “confidential information” consists of that proprietary information subject\nto protection under the Uniform Trade Secrets Act and includes, without limitation, Crystal Clean’s customer list and price information for all\ncustomers and other intangible property to be transferred to Crystal Clean by Heritage. “Confidential information” does not include\n1\ninformation in the public domain through no fault of the Executive or reasonably discoverable without access to internal documents or\ninformation.\n(3) Non Competition. During the term of Executives’s employment with Crystal Clean, and for a period of one (1) year from the date of\nExecutive’s Termination of Employment under the Employment Agreement (“Restricted Period”), Executive will not, other than for the\nexclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal Clean conducts Business\nduring the term of Executive’s employment with Crystal Clean (“Territory”), whether as an employee, owner (except as provided below in\nSection 5), member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this Agreement, the term\n“Business” means the business of providing environmental and fluid management services to small and medium sized customers and providing\nparts washing and drum disposal services (“Business”).\n(4) Non-Solicitation; Nen-Piracy. During the Restricted Period, Executive will not personally call on any person or business organization\nwhich was a customer of Crystal Clean during the Executive’s term of employment for Business within the Territory. Further, during the\nRestricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own account or for any third party, solicit or\nendeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean during the twelve (12) month period\nimmediately before the termination of Executive’s employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business endeavors during\nthe Restricted Period or may engage in the Business outside of the Territory; provided that Executive’s other permitted services will not be\ndeemed to allow Executive to use or disclose “Confidential Information” in contravention of this Agreement or other agreements between\nExecutive and Crystal Clean. Executive may continue to own shares of Clean Harbors, Inc. in an amount not in excess often percent (10%) of the\nissued and outstanding common equity or voting interests.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails to perform\nfully its obligations under this Agreement (“Default”), each Default shall cause immediate and irreparable harm to Crystal Clean, in a manner\nwhich cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the event of any such Default, Crystal Clean, in\naddition to all other available remedies at law or in equity, may, insofar as Executive may be concerned, be entitled to temporary, preliminary and\npermanent injunctive relief to restrain such Default(s) by Executive or others acting in concert with Executive, and to all of its costs, expenses,\nand reasonable attorneys’ fees incurred in any enforcement proceedings in which Crystal Clean prevails in whole or in part. Nothing contained\nherein shall restrict or limit in any manner Crystal Clean’s right to obtain any form of relief, legal or equitable, in an action brought to enforce\nCrystal Clean’s rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in any respect,\nsuch finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. Crystal Clean and Executive\nagree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its enforcement to the\nmaximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing I.aw; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of exclusive jurisdiction\nand venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by Crystal Clean, and\nExecutive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of this Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 17 of the Employment Agreement.\n \n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or representations by or among the parties, written or oral with regard to the subject matter of this Agreement.\nIN WITNESS WHEREQF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year first above\nwritten.\nExecutive\n/s/ Joseph Chalhoub\nJoseph Chalhoub\nHeritage-Crystal Clean, LLC:\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4	EX-10.32 23 c15909alexv10w32.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.32\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Joseph Chalhoub)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 24th day of August, 1999, by and between\nJoseph Chalhoub, a resident of Westmount, Quebec ("Executive"), and Heritage-Crystal Clean, LLC, an Indiana limited liability company\n("Crystal Clean");\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its President and Chief Executive Officer and as a result\nof his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean's business information and confidential data;\nand\nWHEREAS, Executive's right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon Executive's\nentering into an Executive Employment Agreement ("Employment Agreement") and this Non-Competition and Non-Disclosure Agreement;\nNOW THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and the\nEmployment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and certain of its\naffiliates, partners and their beneficiaries (collectively, "Heritage") to organize Crystal Clean, is good and sufficient consideration for Executive's\ncovenants, agreements and forebearances contained in this Agreement and that Heritage would not have organized Crystal Clean and allowed\nExecutive to subscribe for Units but for Executive's entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with Crystal Clean\nand/or its subsidiaries, disclose to any person, firm or corporation, any confidential information concerning Crystal Clean or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which Executive is subpoenaed to give\ntestimony, in which event Executive shall notify Crystal Clean immediately upon learning that Executive may be required or compelled to\ndivulge any confidential information. For purposes of this Agreement, "confidential information" consists of that proprietary information subject\nto protection under the Uniform Trade Secrets Act and includes, without limitation, Crystal Clean's customer list and price information for\nall\ncustomers and other intangible property to be transferred to Crystal Clean by Heritage. "Confidential information" does not include\n1\ninformation in the public domain through no fault of the Executive or reasonably discoverable without access to internal documents or\ninformation.\n(3) Non Competition. During the term of Executives's employment with Crystal Clean, and for a period of one (1) year from the date\nof\nExecutive's Termination of Employment under the Employment Agreement ("Restricted Period"), Executive will not, other than for the\nexclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal Clean conducts Business\nduring the term of Executive's employment with Crystal Clean ("Territory"), whether as an employee, owner (except as provided below in\nSection 5), member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this Agreement, the term\n"Business" means the business of providing environmental and fluid management services to small and medium sized customers and providing\nparts washing and drum disposal services ("Business").\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, Executive will not personally call on any person or business organization\nwhich was a customer of Crystal Clean during the Executive's term of employment for Business within the Territory. Further, during the\nRestricted Period, Executive will not, without the consent of Crystal Clean, for the Executive's own account or for any third party, solicit or\nendeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean during the twelve (12) month period\nimmediately before the termination of Executive's employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business endeavors during\nthe Restricted Period or may engage in the Business outside of the Territory; provided that Executive's other permitted services will not be\ndeemed to allow Executive to use or disclose "Confidential Information" in contravention of this Agreement or other agreements between\nExecutive and Crystal Clean. Executive may continue to own shares of Clean Harbors, Inc. in an amount not in excess often percent (10%) of the\nissued and outstanding common equity or voting interests.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails to perform\nfully\nits obligations under this Agreement ("Default"), each Default shall cause immediate and irreparable harm to Crystal Clean, in a manner\nwhich cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the event of any such Default, Crystal Clean, in\naddition to all other available remedies at law or in equity, may, insofar as Executive may be concerned, be entitled to temporary, preliminary and\npermanent injunctive relief to restrain such Default(s) by Executive or others acting in concert with Executive, and to all of its costs, expenses,\nand reasonable attorneys' fees incurred in any enforcement proceedings in which Crystal Clean prevails in whole or in part. Nothing contained\nherein shall restrict or limit in any manner Crystal Clean's right to obtain any form of relief, legal or equitable, in an action brought to enforce\nCrystal Clean's rights.\n2\n(7) Severability.. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in any respect,\nsuch finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. Crystal Clean and Executive\nagree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its enforcement to the\nmaximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of exclusive jurisdiction\nand venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by Crystal Clean, and\nExecutive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of this Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 17 of the Employment Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or representations by or among the parties, written or oral with regard to the subject matter of this Agreement.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year first above\nwritten.\n3\nExecutive\n/s/ Joseph Chalhoub\nJoseph Chalhoub\nHeritage-Crystal Clean, LLC:\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4	EX-10.32 23 c15909a1exv10w32.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.32\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Joseph Chalhoub)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 24th day of August, 1999, by and between\nJoseph Chalhoub, a resident of Westmount, Quebec (“Executive”), and Heritage-Crystal Clean, LLC, an Indiana limited liability company\n(“Crystal Clean”);\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its President and Chief Executive Officer and as a result\nof his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean’s business information and confidential data;\nand\nWHEREAS, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon Executive’s\nentering into an Executive Employment Agreement (“Employment Agreement”) and this Non-Competition and Non-Disclosure Agreement;\nNOW THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and the\nEmployment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and certain of its\naffiliates, partners and their beneficiaries (collectively, “Heritage”) to organize Crystal Clean, is good and sufficient consideration for Executive’s\ncovenants, agreements and forebearances contained in this Agreement and that Heritage would not have organized Crystal Clean and allowed\nExecutive to subscribe for Units but for Executive’s entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with Crystal Clean\nand/or its subsidiaries, disclose to any person, firm or corporation, any confidential information concerning Crystal Clean or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which Executive is subpoenaed to give\ntestimony, in which event Executive shall notify Crystal Clean immediately upon learning that Executive may be required or compelled to\ndivulge any confidential information. For purposes of this Agreement, “confidential information” consists of that proprietary information subject\nto protection under the Uniform Trade Secrets Act and includes, without limitation, Crystal Clean’s customer list and price information for all\ncustomers and other intangible property to be transferred to Crystal Clean by Heritage. “Confidential information” does not include\n1\ninformation in the public domain through no fault of the Executive or reasonably discoverable without access to internal documents or\ninformation.\n(3) Non Competition. During the term of Executives’s employment with Crystal Clean, and for a period of one (1) year from the date of\nExecutive’s Termination of Employment under the Employment Agreement (“Restricted Period”), Executive will not, other than for the\nexclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal Clean conducts Business\nduring the term of Executive’s employment with Crystal Clean (“Territory”), whether as an employee, owner (except as provided below in\nSection 5), member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this Agreement, the term\n“Business” means the business of providing environmental and fluid management services to small and medium sized customers and providing\nparts washing and drum disposal services (“Business”).\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, Executive will not personally call on any person or business organization\nwhich was a customer of Crystal Clean during the Executive’s term of employment for Business within the Territory. Further, during the\nRestricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own account or for any third party, solicit or\nendeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean during the twelve (12) month period\nimmediately before the termination of Executive’s employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business endeavors during\nthe Restricted Period or may engage in the Business outside of the Territory; provided that Executive’s other permitted services will not be\ndeemed to allow Executive to use or disclose “Confidential Information” in contravention of this Agreement or other agreements between\nExecutive and Crystal Clean. Executive may continue to own shares of Clean Harbors, Inc. in an amount not in excess often percent (10%) of the\nissued and outstanding common equity or voting interests.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails to perform\nfully its obligations under this Agreement (“Default”), each Default shall cause immediate and irreparable harm to Crystal Clean, in a manner\nwhich cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the event of any such Default, Crystal Clean, in\naddition to all other available remedies at law or in equity, may, insofar as Executive may be concerned, be entitled to temporary, preliminary and\npermanent injunctive relief to restrain such Default(s) by Executive or others acting in concert with Executive, and to all of its costs, expenses,\nand reasonable attorneys’ fees incurred in any enforcement proceedings in which Crystal Clean prevails in whole or in part. Nothing contained\nherein shall restrict or limit in any manner Crystal Clean’s right to obtain any form of relief, legal or equitable, in an action brought to enforce\nCrystal Clean’s rights.\n2\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in any respect,\nsuch finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. Crystal Clean and Executive\nagree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its enforcement to the\nmaximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of exclusive jurisdiction\nand venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by Crystal Clean, and\nExecutive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of this Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 17 of the Employment Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or representations by or among the parties, written or oral with regard to the subject matter of this Agreement.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year first above\nwritten.\n3\nExecutive\n/s/ Joseph Chalhoub\nJoseph Chalhoub\nHeritage-Crystal Clean, LLC:\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4
3833e3de6d115e063fe117c09d4104e7.pdf	effective_date jurisdiction party term	EX-10.22 4 dex1022.htm INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.22\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the “Company”), and Anne Drapeau (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during or after his/her\nemployment with the Company.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his/her\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of\nthe Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s premises and not using\nthe Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed\nin accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an\nemployee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such\nclasses. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all actions as the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and an authorized officer of the Company. The Employee agrees that any change or changes in his/her duties, salary or\ncompensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n-2-\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the\nCommonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each\nconsents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate:\nBy: /s/ Colleen Fuller\nColleen Fuller, Manager Human Resources\nDate:\n/s/ Anne Drapeau\nAnne Drapeau\n-3-	EX-10.22 4 dex1022.htm INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.22\nINVENTION AND NON-DISCI.OSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the “Company”), and Anne Drapeau (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during or after his/her\nemployment with the Company.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his/her\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of\nthe Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s premises and not using\nthe Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed\nin accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an\nemployee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such\nclasses. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all actions as the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3.  Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4.  United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and an authorized officer of the Company. The Employee agrees that any change or changes in his/her duties, salary or\ncompensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n-\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the\nCommonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each\nconsents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate: By: /s/ Colleen Fuller\nColleen Fuller, Manager Human Resources\nDate: /s/ Anne Drapeau\nAnne Drapeau	EX-10.22 4 INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.22\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the "Company"), and Anne Drapeau (the "Employee").\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1.\nProprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany\nProprietary\nInformation\nto\nany\nperson\nor\nentity\nother\nthan\nemployees\nof\nthe\nCompany\nor\nuse\nthe\nsame\nfor\nany\npurposes\n(other\nthan\nin\nthe\nperformance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during or after his/her\nemployment with the Company.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich\nshall\ncome into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his/her\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as "Developments").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of\nthe Company and which are made and conceived by the Employee not during normal working hours, not on the Company's premises and not using\nthe Company's tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed\nin accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by\nan\nemployee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such\nclasses. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all actions as the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5.\nNo Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and an authorized officer of the Company. The Employee agrees that any change or changes in his/her duties, salary or\ncompensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n-2-\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of\nthe\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the\nCommonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each\nconsents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate:\nBy: /s/ Colleen Fuller\nColleen Fuller, Manager Human Resources\nDate:\n/s/ Anne Drapeau\nAnne Drapeau\n-3-	EX-10.22 4 dex1022.htm INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.22\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the “Company”), and Anne Drapeau (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during or after his/her\nemployment with the Company.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his/her\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of\nthe Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s premises and not using\nthe Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed\nin accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an\nemployee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such\nclasses. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all actions as the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and an authorized officer of the Company. The Employee agrees that any change or changes in his/her duties, salary or\ncompensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n-2-\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the\nCommonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each\nconsents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate:\nBy: /s/ Colleen Fuller\nColleen Fuller, Manager Human Resources\nDate:\n/s/ Anne Drapeau\nAnne Drapeau\n-3-
38880ce87b3a20784951088adb655aa3.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 5 c16658exv99wxeyx2y.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of February 14, 2007 (the “Effective Date”) by and\nbetween Walgreen Co., an Illinois corporation (“Walgreens”), and Option Care, Inc., a Delaware corporation (“Option Care”).\nWHEREAS, Walgreens and Option Care (each, a “Party” and together, the “Parties”) agree that in order to facilitate discussions relating to\npotential business opportunities and strategic relationships and transactions for their mutual benefit (the “Potential Opportunities”), it may be\nnecessary for each Party to disclose certain information to the other Party on a confidential basis.\nNOW, THEREFORE, in consideration of the mutual promises contained herein, each of the Parties hereby agrees as follows:\n1. Confidentiality of Business Information.\n1.1 Definition. The term “Confidential Information” means any proprietary, confidential and non-public information, whether oral, written,\nvisual or otherwise, disclosed by or on behalf of a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether before or\nafter the Effective Date, in the course of discussing and evaluating the Potential Opportunities.\n1.2 Treatment of Confidential Information. The Receiving Party acknowledges that the Confidential Information is a special, valuable, and\nunique asset of the Disclosing Party and agrees that it: (a) will keep and maintain the Confidential Information in strict confidence; (b) will use\nthe Confidential Information only in connection with its review of the Potential Opportunities; (c) will not use the Confidential Information for\nthe benefit of any third party, or use the Confidential Information for its own benefit; and (d) will not disclose any portion of the Confidential\nInformation to any third party other than its affiliates, directors, officers, employees, agents, accountants, financial advisors, attorneys or other\nRepresentatives (collectively, “Representatives”) who need to know such Confidential Information in connection with the Receiving Party’s\nreview and evaluation of the Potential Opportunities. Each Party will use, and require its Representatives to use, the same degree of care as is\nused with such Party’s own Confidential Information, which shall in no event be less than reasonable care. Each Party will be responsible for\ndisclosures of Confidential Information made by their Representatives in violation of this Agreement.\n1.3 Exceptions to Confidential Treatment. The obligations under Section 1.2 above do not apply to any Confidential Information that:\n(a) the Receiving Party possessed prior to disclosure by the Disclosing Party, without a known obligation of confidentiality; (b) is or becomes\npublicly available without breach of this Agreement by the Receiving Party; (c) is independently developed by the Receiving Party without use\nof any Confidential Information of\nthe Disclosing Party; or (d) is rightfully received by the Receiving Party from a third party without an obligation of confidentiality to the\nDisclosing Party.\nIf, in the reasonable opinion of its legal counsel, a Receiving Party is required by law to disclose any Confidential Information of the other\nParty in connection with any legal proceeding, then the Receiving Party may disclose such information; provided the Receiving Party shall notify\nthe Disclosing Party within a reasonable time prior to disclosure in order to allow the Disclosing Party a reasonable opportunity to seek\nappropriate protective measures.\n2. Destruction/Return of Confidential Information. Promptly after the termination of this Agreement, the termination of discussions regarding\nthe Potential Opportunities, or the receipt of a written request by the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option,\neither: (a) return the Confidential Information to the Disclosing Party, or (b) certify in writing to the Disclosing Party that such Confidential\nInformation has been destroyed in such a manner that it cannot be retrieved.\n3. No Commitment. This Agreement provides only for the handling and protecting of Confidential Information. Neither this Agreement nor any\ndiscussions or disclosures made in connection with the Potential Opportunities: (a) is a commitment to any business relationship, contract or\nfuture dealing with the other Party, or (b) by itself, prevents either Party from conducting similar discussions with third parties, restricts the\nability of either Party conduct its business in the ordinary course or prevents either Party from developing concepts or entering into transactions\nwith other parties similar to the Potential Opportunities, so long as such discussions or work do not violate this Agreement. The Parties are\nindependent contractors and nothing herein will be deemed to create any agency relationship, joint venture or partnership between the Parties. No\nwarranties of any kind are given with respect to the Confidential Information, except that the Disclosing Party warrants that it has the authority to\nmake the disclosures contemplated under this Agreement.\n4. Term. This Agreement shall be effective from and after the Effective Date for two (2) years or until its earlier termination by either Party. The\nobligation to protect the confidentiality of Confidential Information received prior to the date of termination shall survive termination for one\n(1) year.\n5. Non-solicitation. For a period beginning on the date when you execute this Agreement and ending on the second anniversary of that date,\nneither Party shall directly or indirectly induce, recruit, solicit, or influence any managerial, executive or other key employee of the other Party\nwith whom such Party has contact in connection with the Potential Opportunities to terminate his or her employment with his or her employer for\nthe purpose of working or providing consulting services for the other Party. Notwithstanding the foregoing, the restrictions set forth in this\nSection shall not prevent either Party from hiring any person who responds to a general advertisement for employment or who contacts such\nParty on his or her own initiative.\n6. No Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party. No permitted\nassignment will relieve the Receiving Party of its obligations under this Agreement with respect to Confidential Information disclosed to it prior\n2\nto the assignment. Any purported assignment in violation of this Section is void. This Agreement is binding upon the Parties’ respective\npermitted successors and assigns.\n7. Notices. All notices hereunder shall be deemed to have been duly given upon actual receipt if addressed as follows (unless such addresses are\nchanged by written notice): For Walgreens, Attn: Law Department M.S. #1425 (MEV), 104 Wilmot Road, Deerfield, IL 60015 and for Option\nCare, Attn: Joseph Bonaccorsi, 485 Half Day Road, Suite 300, Buffalo Grove, Illinois 60089.\n8. No Waiver. No failure or delay by either Party in exercising any right under this Agreement is a waiver of its rights, nor does any single or\npartial waiver of its rights preclude any other or further exercise of its rights or the exercise of any other right under this Agreement.\n9. Publicity. The Parties agree that the existence of this Agreement, the disclosures contemplated herein, and the existence of a potential business\nrelationship between the Parties shall be kept confidential and shall not be revealed to or discussed with third parties without mutual approval of\nboth Parties.\n10. Injunctive Relief. The Receiving Party acknowledges and agrees that in the event of any breach of this Agreement, the Disclosing Party\nwould be irreparably and immediately harmed and could not be made whole by monetary damages alone. Accordingly, the Parties agree that in\nthe event the Receiving Party or any of its Representatives uses, discloses, or the Receiving Party reasonably believes, based on facts known to\nthe Receiving Party at the time that (or in the Disclosing Party’s sole opinion) any such person is likely to use or disclose Confidential\nInformation of the Disclosing Party in breach of this Agreement, the Disclosing Party, in addition to any other remedy to which it maybe entitled\nin law or equity, shall be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.\n11. Counterparts; Facsimile/Pdf. This Agreement may be executed in any number of separate counterparts, all of which, when taken together,\nshall constitute one and the same instrument, notwithstanding the fact that all Parties did not sign the same counterpart. Each of the Parties agrees\nthat a signature transmitted to the other Parties by facsimile transmission or in pdf format shall be effective to bind the Party whose signature was\ntransmitted.\n12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving\neffect to the principles of conflict of laws.\n13. Entire Agreement; Severability. This Agreement represents the entire understanding of the Parties with respect to the Confidential\nInformation and supersedes all prior communications, agreements and understandings relating to the disclosure of Confidential Information. The\nprovisions of this Agreement may not be modified, amended or waived, except by a written instrument duly executed by both Parties. If any\nprovision of this Agreement is held invalid or unenforceable, in a final non-appealable order issued by a court of competent jurisdiction, the\nprovision shall be deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the intention\nof the original provision. The remaining provisions of this Agreement will continue in full force and effect for the term of the Agreement.\n3\nIN WITNESS WHEREOF, the Parties’ duly authorized representatives have executed this Agreement as of the Effective Date.\nWALGREEN CO.\nOPTION CARE, INC.\nBy: /s/ Robert G. Zimmerman\nBy: /s/ Raj Rai\nName: Robert G. Zimmerman\nName: Raj Rai\nTitle: Vice President\nTitle: CEO\n4	EX-99.(E)(2) 5 c16658exv99wxeyx2y.htm MUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NONDISCL.OSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of February 14, 2007 (the “Effective Date”) by and\nbetween Walgreen Co., an Illinois corporation (“Walgreens”), and Option Care, Inc., a Delaware corporation (“Option Care”).\nWHEREAS, Walgreens and Option Care (each, a “Party” and together, the “Parties”) agree that in order to facilitate discussions relating to\npotential business opportunities and strategic relationships and transactions for their mutual benefit (the “Potential Opportunities”), it may be\nnecessary for each Party to disclose certain information to the other Party on a confidential basis.\n \nNOW, THEREFORE, in consideration of the mutual promises contained herein, each of the Parties hereby agrees as follows:\n1. Confidentiality of Business Information.\n1.1 Definition. The term “Confidential Information” means any proprietary, confidential and non-public information, whether oral, written,\nvisual or otherwise, disclosed by or on behalf of a Party (the “Disclesing Party”) to the other Party (the “Receiving Party”), whether before or\nafter the Effective Date, in the course of discussing and evaluating the Potential Opportunities.\n1.2 Treatment of Confidential Information. The Receiving Party acknowledges that the Confidential Information is a special, valuable, and\nunique asset of the Disclosing Party and agrees that it: (a) will keep and maintain the Confidential Information in strict confidence; (b) will use\nthe Confidential Information only in connection with its review of the Potential Opportunities; (c) will not use the Confidential Information for\nthe benefit of any third party, or use the Confidential Information for its own benefit; and (d) will not disclose any portion of the Confidential\nInformation to any third party other than its affiliates, directors, officers, employees, agents, accountants, financial advisors, attorneys or other\nRepresentatives (collectively, “Representatives”) who need to know such Confidential Information in connection with the Receiving Party’s\nreview and evaluation of the Potential Opportunities. Each Party will use, and require its Representatives to use, the same degree of care as is\nused with such Party’s own Confidential Information, which shall in no event be less than reasonable care. Each Party will be responsible for\ndisclosures of Confidential Information made by their Representatives in violation of this Agreement.\n1.3 Exceptions to Confidential Treatment. The obligations under Section 1.2 above do not apply to any Confidential Information that:\n(a) the Receiving Party possessed prior to disclosure by the Disclosing Party, without a known obligation of confidentiality; (b) is or becomes\npublicly available without breach of this Agreement by the Receiving Party; (c) is independently developed by the Receiving Party without use\nof any Confidential Information of\nthe Disclosing Party; or (d) is rightfully received by the Receiving Party from a third party without an obligation of confidentiality to the\nDisclosing Party.\nIf, in the reasonable opinion of its legal counsel, a Receiving Party is required by law to disclose any Confidential Information of the other\nParty in connection with any legal proceeding, then the Receiving Party may disclose such information; provided the Receiving Party shall notify\nthe Disclosing Party within a reasonable time prior to disclosure in order to allow the Disclosing Party a reasonable opportunity to seek\nappropriate protective measures.\n2. Destruction/Return of Confidential Information. Promptly after the termination of this Agreement, the termination of discussions regarding\nthe Potential Opportunities, or the receipt of a written request by the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option,\neither: (a) return the Confidential Information to the Disclosing Party, or (b) certify in writing to the Disclosing Party that such Confidential\nInformation has been destroyed in such a manner that it cannot be retrieved.\n3. No Commitment. This Agreement provides only for the handling and protecting of Confidential Information. Neither this Agreement nor any\ndiscussions or disclosures made in connection with the Potential Opportunities: (a) is a commitment to any business relationship, contract or\nfuture dealing with the other Party, or (b) by itself, prevents either Party from conducting similar discussions with third parties, restricts the\nability of either Party conduct its business in the ordinary course or prevents either Party from developing concepts or entering into transactions\nwith other parties similar to the Potential Opportunities, so long as such discussions or work do not violate this Agreement. The Parties are\nindependent contractors and nothing herein will be deemed to create any agency relationship, joint venture or partnership between the Parties. No\nwarranties of any kind are given with respect to the Confidential Information, except that the Disclosing Party warrants that it has the authority to\nmake the disclosures contemplated under this Agreement.\n4. Term. This Agreement shall be effective from and after the Effective Date for two (2) years or until its earlier termination by either Party. The\nobligation to protect the confidentiality of Confidential Information received prior to the date of termination shall survive termination for one\n(1) year.\n5. Non-solicitation. For a period beginning on the date when you execute this Agreement and ending on the second anniversary of that date,\nneither Party shall directly or indirectly induce, recruit, solicit, or influence any managerial, executive or other key employee of the other Party\nwith whom such Party has contact in connection with the Potential Opportunities to terminate his or her employment with his or her employer for\nthe purpose of working or providing consulting services for the other Party. Notwithstanding the foregoing, the restrictions set forth in this\nSection shall not prevent either Party from hiring any person who responds to a general advertisement for employment or who contacts such\nParty on his or her own initiative.\n6. No Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party. No permitted\nassignment will relieve the Receiving Party of its obligations under this Agreement with respect to Confidential Information disclosed to it prior\n2\nto the assignment. Any purported assignment in violation of this Section is void. This Agreement is binding upon the Parties’ respective\npermitted successors and assigns.\n7. Notices. All notices hereunder shall be deemed to have been duly given upon actual receipt if addressed as follows (unless such addresses are\nchanged by written notice): For Walgreens, Attn: Law Department M.S. #1425 (MEV), 104 Wilmot Road, Deerfield, IL 60015 and for Option\nCare, Attn: Joseph Bonaccorsi, 485 Half Day Road, Suite 300, Buffalo Grove, Illinois 60089.\n8. No Waiver. No failure or delay by either Party in exercising any right under this Agreement is a waiver of its rights, nor does any single or\npartial waiver of its rights preclude any other or further exercise of its rights or the exercise of any other right under this Agreement.\n9. Publicity. The Parties agree that the existence of this Agreement, the disclosures contemplated herein, and the existence of a potential business\nrelationship between the Parties shall be kept confidential and shall not be revealed to or discussed with third parties without mutual approval of\nboth Parties.\n10. Injunctive Relief. The Receiving Party acknowledges and agrees that in the event of any breach of this Agreement, the Disclosing Party\nwould be irreparably and immediately harmed and could not be made whole by monetary damages alone. Accordingly, the Parties agree that in\nthe event the Receiving Party or any of its Representatives uses, discloses, or the Receiving Party reasonably believes, based on facts known to\nthe Receiving Party at the time that (or in the Disclosing Party’s sole opinion) any such person is likely to use or disclose Confidential\nInformation of the Disclosing Party in breach of this Agreement, the Disclosing Party, in addition to any other remedy to which it maybe entitled\nin law or equity, shall be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.\n11. Counterparts; Facsimile/Pdf. This Agreement may be executed in any number of separate counterparts, all of which, when taken together,\nshall constitute one and the same instrument, notwithstanding the fact that all Parties did not sign the same counterpart. Each of the Parties agrees\nthat a signature transmitted to the other Parties by facsimile transmission or in pdf format shall be effective to bind the Party whose signature was\ntransmitted.\n12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving\neffect to the principles of conflict of laws.\n13. Entire Agreement; Severability. This Agreement represents the entire understanding of the Parties with respect to the Confidential\nInformation and supersedes all prior communications, agreements and understandings relating to the disclosure of Confidential Information. The\nprovisions of this Agreement may not be modified, amended or waived, except by a written instrument duly executed by both Parties. If any\nprovision of this Agreement is held invalid or unenforceable, in a final non-appealable order issued by a court of competent jurisdiction, the\nprovision shall be deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the intention\nof the original provision. The remaining provisions of this Agreement will continue in full force and effect for the term of the Agreement.\n3\nIN WITNESS WHEREOQF, the Parties’ duly authorized representatives have executed this Agreement as of the Effective Date.\nWALGREEN CO. OPTION CARE, INC.\nBy: /s/ Robert G. Zimmerman By: /s/RajRai\nName: Robert G. Zimmerman Name: Raj Rai\nTitle: Vice President Title: CEO	EX-99.(E)(2) 5 c16658exv99wxeyx2y.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit pit (e)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of February 14, 2007 (the "Effective Date") by and\nbetween Walgreen Co., an Illinois corporation ("Walgreens"), and Option Care, Inc., a Delaware corporation ("Option Care").\nWHEREAS, Walgreens and Option Care (each, a "Party." and together, the "Parties") agree that in order to facilitate discussions relating to\npotential business opportunities and strategic relationships and transactions for their mutual benefit (the "Potential Opportunities"), it may be\nnecessary for each Party to disclose certain information to the other Party on a confidential basis.\nNOW, THEREFORE, in consideration of the mutual promises contained herein, each of the Parties hereby agrees as follows:\n1. Confidentiality of Business Information.\n1.1 Definition. The term "Confidential Information" means any proprietary, confidential and non-public information, whether oral, written,\nvisual or otherwise, disclosed by or on behalf of a Party (the "Disclosing Party.") to the other Party (the "Receiving Pa Party."), whether before or\nafter the Effective Date, in the course of discussing and evaluating the Potential Opportunities.\n1.2 Treatment of Confidential Information The Receiving Party acknowledges that the Confidential Information is a special, valuable, and\nunique asset of the Disclosing Party and agrees that it: (a) will keep and maintain the Confidential Information in strict confidence; (b) will use\nthe Confidential Information only in connection with its review of the Potential Opportunities; (c) will not use the Confidential Information for\nthe benefit of any third party, or use the Confidential Information for its own benefit; and (d) will not disclose any portion of the Confidential\nInformation to any third party other than its affiliates, directors, officers, employees, agents, accountants, financial advisors, attorneys or other\nRepresentatives\n(collectively,\n"Representatives")\nwho\nneed\nto\nknow\nsuch\nConfidential\nInformation\nin\nconnection\nwith\nthe\nReceiving\nParty's\nreview and evaluation of the Potential Opportunities. Each Party will use, and require its Representatives to use, the same degree of care as is\nused with such Party's own Confidential Information, which shall in no event be less than reasonable care. Each Party will be responsible for\ndisclosures of Confidential Information made by their Representatives in violation of this Agreement.\n1.3 Exceptions to Confidential Treatment. The obligations under Section 1.2 above do not apply to any Confidential Information that:\n(a) the Receiving Party possessed prior to disclosure by the Disclosing Party, without a known obligation of confidentiality; (b) is or becomes\npublicly available without breach of this Agreement by the Receiving Party; (c) is independently developed by the Receiving Party without use\nof any Confidential Information of\nthe Disclosing Party; or (d) is rightfully received by the Receiving Party from a third party without an obligation of confidentiality to the\nDisclosing Party.\nIf, in the reasonable opinion of its legal counsel, a Receiving Party is required by law to disclose any Confidential Information of the other\nParty in connection with any legal proceeding, then the Receiving Party may disclose such information; provided the Receiving Party shall notify\nthe Disclosing Party within a reasonable time prior to disclosure in order to allow the Disclosing Party a reasonable opportunity to seek\nappropriate protective measures.\n2. Destruction/Return of Confidential Information. Promptly after the termination of this Agreement, the termination of discussions regarding\nthe Potential Opportunities, or the receipt of a written request by the Disclosing Party, the Receiving Party shall, at the Disclosing Party's option,\neither: (a) return the Confidential Information to the Disclosing Party, or (b) certify in writing to the Disclosing Party that such Confidential\nInformation has been destroyed in such a manner that it cannot be retrieved.\n3. No Commitment. This Agreement provides only for the handling and protecting of Confidential Information. Neither this Agreement nor any\ndiscussions or disclosures made in connection with the Potential Opportunities: (a) is a commitment to any business relationship, contract or\nfuture dealing with the other Party, or (b) by itself, prevents either Party from conducting similar discussions with third parties, restricts the\nability of either Party conduct its business in the ordinary course or prevents either Party from developing concepts or entering into transactions\nwith other parties similar to the Potential Opportunities, so long as such discussions or work do not violate this Agreement. The Parties are\nindependent contractors and nothing herein will be deemed to create any agency relationship, joint venture or partnership between the Parties. No\nwarranties of any kind are given with respect to the Confidential Information, except that the Disclosing Party warrants that it has the authority to\nmake the disclosures contemplated under this Agreement.\n4. Term. This Agreement shall be effective from and after the Effective Date for two (2) years or until its earlier termination by either Party. The\nobligation to protect the confidentiality of Confidential Information received prior to the date of termination shall survive termination for one\n(1) year.\n5. Non-solicitation. For a period beginning on the date when you execute this Agreement and ending on the second anniversary of that date,\nneither Party shall directly or indirectly induce, recruit, solicit, or influence any managerial, executive or other key employee of the other\nParty\nwith whom such Party has contact in connection with the Potential Opportunities to terminate his or her employment with his or her employer for\nthe purpose of working or providing consulting services for the other Party. Notwithstanding the foregoing, the restrictions set forth in this\nSection shall not prevent either Party from hiring any person who responds to a general advertisement for employment or who contacts such\nParty on his or her own initiative.\n6.\nNo Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party. No permitted\nassignment will relieve the Receiving Party of its obligations under this Agreement with respect to Confidential Information disclosed to it\nprior\n2\nto the assignment. Any purported assignment in violation of this Section is void. This Agreement is binding upon the Parties' respective\npermitted successors and assigns.\n7. Notices. All notices hereunder shall be deemed to have been duly given upon actual receipt if addressed as follows (unless such addresses are\nchanged by written notice): For Walgreens, Attn: Law Department M.S. #1425 (MEV), 104 Wilmot Road, Deerfield, IL 60015 and for Option\nCare, Attn: Joseph Bonaccorsi, 485 Half Day Road, Suite 300, Buffalo Grove, Illinois 60089.\n8. No Waiver. No failure or delay by either Party in exercising any right under this Agreement is a waiver of its rights, nor does any single or\npartial waiver of its rights preclude any other or further exercise of its rights or the exercise of any other right under this Agreement.\n9. Publicity. The Parties agree that the existence of this Agreement, the disclosures contemplated herein, and the existence of a potential business\nrelationship between the Parties shall be kept confidential and shall not be revealed to or discussed with third parties without mutual approval of\nboth Parties.\n10 Injunctive Relief. The Receiving Party acknowledges and agrees that in the event of any breach of this Agreement the Disclosing Party\nwould be irreparably and immediately harmed and could not be made whole by monetary damages alone. Accordingly, the Parties agree that in\nthe event the Receiving Party or any of its Representatives uses, discloses, or the Receiving Party reasonably believes, based on facts known to\nthe Receiving Party at the time that (or in the Disclosing Party's sole opinion) any such person is likely to use or disclose Confidential\nInformation of the Disclosing Party in breach of this Agreement, the Disclosing Party, in addition to any other remedy to which it maybe entitled\nin law or equity, shall be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.\n11.\nCounterparts; Facsimile/Pdf. This Agreement may be executed in any number of separate counterparts, all of which, when taken together,\nshall constitute one and the same instrument, notwithstanding the fact that all Parties did not sign the same counterpart. Each of the Parties agrees\nthat a signature transmitted to the other Parties by facsimile transmission or in pdf format shall be effective to bind the Party whose signature was\ntransmitted.\n12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving\neffect to the principles of conflict of laws.\n13. Entire Agreement; Severability. This Agreement represents the entire understanding of the Parties with respect to the Confidentia\nInformation and supersedes all prior communications, agreements and understandings relating to the disclosure of Confidential Information. The\nprovisions of this Agreement may not be modified, amended or waived, except by a written instrument duly executed by both Parties. If any\nprovision of this Agreement is held invalid or unenforceable, in a final non-appealable order issued by a court of competent jurisdiction, the\nprovision shall be deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the intention\nof the original provision. The remaining provisions of this Agreement will continue in full force and effect for the term of the Agreement.\n3\nIN WITNESS WHEREOF, the Parties' duly authorized representatives have executed this Agreement as of the Effective Date.\nWALGREEN CO.\nOPTION CARE, INC.\nBy: /s/ Robert G. Zimmerman\nBy: /s/ Raj Rai\nName: Robert G. Zimmerman\nName: Raj Rai\nTitle: Vice President\nTitle: CEO\n4	EX-99.(E)(2) 5 c16658exv99wxeyx2y.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of February 14, 2007 (the “Effective Date”) by and\nbetween Walgreen Co., an Illinois corporation (“Walgreens”), and Option Care, Inc., a Delaware corporation (“Option Care”).\nWHEREAS, Walgreens and Option Care (each, a “Party” and together, the “Parties”) agree that in order to facilitate discussions relating to\npotential business opportunities and strategic relationships and transactions for their mutual benefit (the “Potential Opportunities”), it may be\nnecessary for each Party to disclose certain information to the other Party on a confidential basis.\nNOW, THEREFORE, in consideration of the mutual promises contained herein, each of the Parties hereby agrees as follows:\n1. Confidentiality of Business Information.\n1.1 Definition. The term “Confidential Information” means any proprietary, confidential and non-public information, whether oral, written,\nvisual or otherwise, disclosed by or on behalf of a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether before or\nafter the Effective Date, in the course of discussing and evaluating the Potential Opportunities.\n1.2 Treatment of Confidential Information. The Receiving Party acknowledges that the Confidential Information is a special, valuable, and\nunique asset of the Disclosing Party and agrees that it: (a) will keep and maintain the Confidential Information in strict confidence; (b) will use\nthe Confidential Information only in connection with its review of the Potential Opportunities; (c) will not use the Confidential Information for\nthe benefit of any third party, or use the Confidential Information for its own benefit; and (d) will not disclose any portion of the Confidential\nInformation to any third party other than its affiliates, directors, officers, employees, agents, accountants, financial advisors, attorneys or other\nRepresentatives (collectively, “Representatives”) who need to know such Confidential Information in connection with the Receiving Party’s\nreview and evaluation of the Potential Opportunities. Each Party will use, and require its Representatives to use, the same degree of care as is\nused with such Party’s own Confidential Information, which shall in no event be less than reasonable care. Each Party will be responsible for\ndisclosures of Confidential Information made by their Representatives in violation of this Agreement.\n1.3 Exceptions to Confidential Treatment. The obligations under Section 1.2 above do not apply to any Confidential Information that:\n(a) the Receiving Party possessed prior to disclosure by the Disclosing Party, without a known obligation of confidentiality; (b) is or becomes\npublicly available without breach of this Agreement by the Receiving Party; (c) is independently developed by the Receiving Party without use\nof any Confidential Information of\nthe Disclosing Party; or (d) is rightfully received by the Receiving Party from a third party without an obligation of confidentiality to the\nDisclosing Party.\nIf, in the reasonable opinion of its legal counsel, a Receiving Party is required by law to disclose any Confidential Information of the other\nParty in connection with any legal proceeding, then the Receiving Party may disclose such information; provided the Receiving Party shall notify\nthe Disclosing Party within a reasonable time prior to disclosure in order to allow the Disclosing Party a reasonable opportunity to seek\nappropriate protective measures.\n2. Destruction/Return of Confidential Information. Promptly after the termination of this Agreement, the termination of discussions regarding\nthe Potential Opportunities, or the receipt of a written request by the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option,\neither: (a) return the Confidential Information to the Disclosing Party, or (b) certify in writing to the Disclosing Party that such Confidential\nInformation has been destroyed in such a manner that it cannot be retrieved.\n3. No Commitment. This Agreement provides only for the handling and protecting of Confidential Information. Neither this Agreement nor any\ndiscussions or disclosures made in connection with the Potential Opportunities: (a) is a commitment to any business relationship, contract or\nfuture dealing with the other Party, or (b) by itself, prevents either Party from conducting similar discussions with third parties, restricts the\nability of either Party conduct its business in the ordinary course or prevents either Party from developing concepts or entering into transactions\nwith other parties similar to the Potential Opportunities, so long as such discussions or work do not violate this Agreement. The Parties are\nindependent contractors and nothing herein will be deemed to create any agency relationship, joint venture or partnership between the Parties. No\nwarranties of any kind are given with respect to the Confidential Information, except that the Disclosing Party warrants that it has the authority to\nmake the disclosures contemplated under this Agreement.\n4. Term. This Agreement shall be effective from and after the Effective Date for two (2) years or until its earlier termination by either Party. The\nobligation to protect the confidentiality of Confidential Information received prior to the date of termination shall survive termination for one\n(1) year.\n5. Non-solicitation. For a period beginning on the date when you execute this Agreement and ending on the second anniversary of that date,\nneither Party shall directly or indirectly induce, recruit, solicit, or influence any managerial, executive or other key employee of the other Party\nwith whom such Party has contact in connection with the Potential Opportunities to terminate his or her employment with his or her employer for\nthe purpose of working or providing consulting services for the other Party. Notwithstanding the foregoing, the restrictions set forth in this\nSection shall not prevent either Party from hiring any person who responds to a general advertisement for employment or who contacts such\nParty on his or her own initiative.\n6. No Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party. No permitted\nassignment will relieve the Receiving Party of its obligations under this Agreement with respect to Confidential Information disclosed to it prior\n2\nto the assignment. Any purported assignment in violation of this Section is void. This Agreement is binding upon the Parties’ respective\npermitted successors and assigns.\n7. Notices. All notices hereunder shall be deemed to have been duly given upon actual receipt if addressed as follows (unless such addresses are\nchanged by written notice): For Walgreens, Attn: Law Department M.S. #1425 (MEV), 104 Wilmot Road, Deerfield, IL 60015 and for Option\nCare, Attn: Joseph Bonaccorsi, 485 Half Day Road, Suite 300, Buffalo Grove, Illinois 60089.\n8. No Waiver. No failure or delay by either Party in exercising any right under this Agreement is a waiver of its rights, nor does any single or\npartial waiver of its rights preclude any other or further exercise of its rights or the exercise of any other right under this Agreement.\n9. Publicity. The Parties agree that the existence of this Agreement, the disclosures contemplated herein, and the existence of a potential business\nrelationship between the Parties shall be kept confidential and shall not be revealed to or discussed with third parties without mutual approval of\nboth Parties.\n10. Injunctive Relief. The Receiving Party acknowledges and agrees that in the event of any breach of this Agreement, the Disclosing Party\nwould be irreparably and immediately harmed and could not be made whole by monetary damages alone. Accordingly, the Parties agree that in\nthe event the Receiving Party or any of its Representatives uses, discloses, or the Receiving Party reasonably believes, based on facts known to\nthe Receiving Party at the time that (or in the Disclosing Party’s sole opinion) any such person is likely to use or disclose Confidential\nInformation of the Disclosing Party in breach of this Agreement, the Disclosing Party, in addition to any other remedy to which it maybe entitled\nin law or equity, shall be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.\n11. Counterparts; Facsimile/Pdf. This Agreement may be executed in any number of separate counterparts, all of which, when taken together,\nshall constitute one and the same instrument, notwithstanding the fact that all Parties did not sign the same counterpart. Each of the Parties agrees\nthat a signature transmitted to the other Parties by facsimile transmission or in pdf format shall be effective to bind the Party whose signature was\ntransmitted.\n12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving\neffect to the principles of conflict of laws.\n13. Entire Agreement; Severability. This Agreement represents the entire understanding of the Parties with respect to the Confidential\nInformation and supersedes all prior communications, agreements and understandings relating to the disclosure of Confidential Information. The\nprovisions of this Agreement may not be modified, amended or waived, except by a written instrument duly executed by both Parties. If any\nprovision of this Agreement is held invalid or unenforceable, in a final non-appealable order issued by a court of competent jurisdiction, the\nprovision shall be deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the intention\nof the original provision. The remaining provisions of this Agreement will continue in full force and effect for the term of the Agreement.\n3\nIN WITNESS WHEREOF, the Parties’ duly authorized representatives have executed this Agreement as of the Effective Date.\nWALGREEN CO.\nOPTION CARE, INC.\nBy: /s/ Robert G. Zimmerman\nBy: /s/ Raj Rai\nName: Robert G. Zimmerman\nName: Raj Rai\nTitle: Vice President\nTitle: CEO\n4
39610c6bf605fdd8d0d9bcb2aacb5e74.pdf	effective_date jurisdiction party term	EX-10.4 2 d450416dex104.htm EX-10.4\nExhibit 10.4\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT\nAND NON-DISCLOSURE, NON-COMPETITION,\nAND INVENTION ASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment Agreement (this\n“Agreement”) is made as of the\nday of\n, 20 (the “Effective Date”) by and between Cognizant Technology Solutions Corporation, a\nDelaware corporation (the “Company” (where applicable, the definition of Company shall include the Company’s subsidiaries and affiliates and any\nsuccessors or assigns)), and\n(“Employee”).\nWHEREAS, Employee is currently employed by the Company as its\n; and\nWHEREAS, the Company desires to continue to retain the services of Employee; and\nWHEREAS, the Parties desire to amend and restate, in its entirety, the parties’ prior agreements pertaining to Employee’s employment,\nand set forth the new terms and conditions of Employee’s employment by the Company;\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and intending to\nbe legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:\n1. Definitions.\n(a) “Annual Base Salary” shall mean the rate of annual base salary paid or payable to Employee by the Company (including authorized\ndeferrals and salary reduction amounts) immediately prior to Employee’s Termination Date.\n(b) “Board” shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) “Cause” shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee’s supervisor, (iii) failure by the Employee to observe material\npolicies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor involving\nmoral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) “Disability” means Employee’s total and permanent disability as determined in accordance with the Company’s long-term disability\npolicy, whether or not Employee is covered by such policy.\n-1-\n(f) “Good Reason” means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee’s authority, duties or responsibilities;\n(ii) A material diminution in Employee’s overall compensation package, which is not otherwise caused by an overall policy by\nthe Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee’s consent, in the principal place of work of the Employee to a location that is more than 50\nmiles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon,\nand (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee’s employment under the provision so\nindicated.\n(h) “Termination Date” shall mean the last day of Employee’s employment with the Company.\n(i) “Termination of Employment” shall mean the termination of Employee’s active employment relationship with the Company.\n2. Employment. Company hereby continues to employ Employee, and Employee hereby continues to accept such employment, upon the terms\nand conditions set forth herein.\n3. Duties.\n(a) Position. Employee continues to be employed as [insert position title] and shall have the duties and responsibilities assigned by\n[insert title] both upon initial hire and as may be reasonably assigned from time to time. Employee shall perform faithfully and diligently all duties\nassigned to Employee. Company reserves the right to modify Employee’s position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [insert title].\n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee’s best efforts and entire\nbusiness time and attention to the Company’s Business during the term of Employee’s employment with the Company. Employee agrees that, during\nthe term of Employee’s employment, except as otherwise approved in writing by the Company, which approval the Company may in its absolute\ndiscretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction with any\nperson, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or entity other\nthan the Company; provided that the\n-2-\nforegoing is not intended to prevent an Employee from pursuing hobbies or participating in any other activity which is not to the detriment of\nCompany. Employee further acknowledges and agrees that Employee has access to the Company’s Core Values and Standards of Business Conduct\n(the “Conduct Code”) located at www.cognizant.com, and Employee has read and understands the Conduct Code and shall abide by all the terms of\nsaid Conduct Code, as may be amended from time to time, and said Conduct Code shall be incorporated into this Agreement. Employee will abide\nby all policies and decisions made by Company, as well as all applicable federal, state and local laws, regulations or ordinances. Employee will act in\nthe best interest of Company at all times.\n(c) Work Location. Employee’s principal place of work shall be located in [insert city, state], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee’s employment with the Company will be “at will,” meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, Company shall pay to Employee\na base salary as most recently determined by the Compensation Committee of the Board and last communicated to the Employee, as may be\nmodified by the Compensation Committee of the Board, payable in accordance with the normal payroll practices of Company, less required\ndeductions for state and federal withholding tax, social security and all other employment taxes and payroll deductions. In the event Employee’s\nemployment under this Agreement is terminated by either party, for any reason, Employee will earn the Annual Base Salary prorated to the date of\ntermination.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation Committee\nof the Board in accordance with the bonus plan(s) provided to Employee by Company, in accordance with the terms and conditions of such plan(s).\n(c) Stock Options and Other Equity Awards. Except as set forth herein, this Agreement does not modify or change the existing\nagreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an “Equity Award” and\ncollectively, “Equity Awards”) previously issued to Employee.\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to Employees of\nCompany subject to the terms and conditions of Company’s benefit plan documents. Company reserves the right to change or eliminate the fringe\nbenefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance of\nEmployee’s duties on behalf of Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with Company’s policies.\n-3-\n8. Company Access. Employee agrees and consents that, during the term of Employee’s employment with the Company and thereafter, the\nCompany may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and internet access system\nprovided by the Company with or without notice to Employee and that such review, audit, interception, access, or disclosure may occur during or\nafter working hours. Employee further consents and agrees that the Company may, at any time, access and review the contents of all computers,\ncomputer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations which are either on the\nCompany’s premises or which are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee’s employment with the Company is involuntarily terminated by the\nCompany for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case\nEmployee’s employment termination becomes effective before any Change in Control (as defined in Section 9(e) below) has occurred following the\ndate of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does not\nrevoke the Release (as defined in Section 11) and the Release first becomes effective:\n(i) Employee shall receive continued payment of the Employee’s Annual Base Salary, paid in regular installments in accordance\nwith the Company’s normal payroll practices, over a period of twenty-two (22) months, commencing on or as soon as practicable after the date the\nRelease becomes effective and within thirty-five days following Employee’s Termination Date.\n(ii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay\nthe Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee\nand, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified\nunder this Section 9(a)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for\nany reason before the expiration of the 12-month period.\n(iii) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nand would have vested had Employee remained employed by the Company during the twelve (12) month period following Employee’s Termination\nDate shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such Equity Awards shall continue\nto be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n-4-\n(iv) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on achievement of\nperformance objective(s), to the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates,\nthe portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12) month period\nfollowing Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such Equity Award shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(a)(v) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary Termination that becomes\neffective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in Control following the date of\nthis Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in lieu of, and not in addition to, the\npayments and benefits described in Section 9(a); provided that Employee executes and does not revoke the Release (as defined in Section 11) and the\nRelease first becomes effective:\n(i) Employee shall receive a cash payment equal to one times Employee’s Annual Base Salary, such amount to be paid in regular\ninstallments in accordance with the Company’s normal payroll practices over a period of twelve (12) months, commencing on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(ii) Employee shall receive a cash payment equal to the amount of the target annual bonus that the Employee would otherwise\nhave been eligible to receive for the performance year in which the Employee’s Termination Date occurs, assuming for this purpose that the\nEmployee and Company achieved 100% of applicable performance targets and objectives. Payment shall be made in a lump sum payment on or as\nsoon as practicable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(iii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee and,\nwhere applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and dependents,\nare eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified under this\nSection 9(b)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any\nreason before the expiration of the 12-month period.\n-5-\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nshall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity Awards shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the performance\nobjective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates, such\nEquity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date, the Company shall\npro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of Closing of the Change in\nControl, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Closing Date, and\ntreat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of the pro-\nrated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(c) Termination Due to Death, Disability, or For Cause. If Employee is terminated due to death, Disability, or for Cause, Employee shall\nreceive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination Date and any benefits accrued and\nearned in accordance with the terms of any applicable benefit plans and programs of the Company; all other Company obligations to Employee will\nbe extinguished as of the Termination Date.\n(d) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to the other\nParties hereto given in accordance with Section 24 hereof.\n(e) Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall have the meaning set forth in\nthe Company’s 2009 Incentive Compensation Plan, as amended from time to time or any successor plan in effect as of Employee’s Termination\nDate.\n-6-\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the expiration of the\ncure period and Employee’s actual termination as described below, such resignation shall be deemed an Involuntary Termination for purposes of this\nAgreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set forth in this\nAgreement, including Section 11. Employee must provide written notice to the Company of his intent to terminate his employment for Good Reason\nwithin thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have a period of thirty\n(30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in Employee’s notice of\ntermination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period, Employee must terminate his\nemployment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the termination to be considered a Good\nReason termination under this Agreement.\n11. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9 and 10, as applicable (except for those\npayments that are owed pursuant to applicable law and/or are specifically not conditioned upon Employee’s execution of a release), unless Employee\nexecutes, and does not revoke, the Company’s then standard written general release (the “Release”) of any and all claims against the Company and\nall related parties with respect to all matters arising out of Employee’s employment by the Company (other than any entitlements under the terms of\nthis Agreement or under any other plans or programs of the Company in which Employee participated and under which Employee has accrued and\nearned a benefit) or the termination thereof. The Company will provide Employee with the form of release agreement within seven days after\nEmployee’s separation from service. To be entitled to the severance or other benefits, Employee must execute and deliver to the Company the release\nagreement on or before the last day of the minimum required waiver consideration period provided under the Age Discrimination in Employment\nAct or other applicable law or such later date specified in the release agreement. If Employee timely delivers an executed release agreement to the\nCompany, and Employee does not revoke the release agreement during the minimum revocation period required under applicable law, if any, the\nseverance or other benefits shall be paid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to\nSection 30(b) of this Agreement. If, however, the period during which Employee has discretion to execute or revoke the release agreement straddles\ntwo calendar years, the cash severance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of\nthe two calendar years, regardless of within which calendar year Employee actually delivers the executed release agreement to the Company, subject\nto the release agreement first becoming effective. Consistent with section 409A of the Code, Employee may not, directly or indirectly, designate the\ncalendar year of payment. Nothing in this Section 11 shall be construed to alter the terms of this Agreement that condition Employee’s entitlement to\nany severance or other benefits upon Employee’s compliance with the restrictive covenants and any other terms and conditions specified in this\nAgreement.\n12. Other Payments. Any payments and benefits that become due under Sections 9 and 10 hereof shall be in addition to (but not in duplication\nof) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except that Employee\nshall not be entitled to any payments and benefits under the Company’s then current severance pay policies.\n-7-\n13. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking\nother employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation earned by other\nemployment or otherwise; provided, however, that any obligation of the Company to provide COBRA healthcare continuation coverage under\nSections 4 and 5 hereof shall cease upon Employee becoming covered under a healthcare plan of another employer.\n14. Non-Exclusivity of Rights. Except as provided in Section 12, nothing in this Agreement shall prevent or limit Employee’s continuing or\nfuture participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of its subsidiaries or\naffiliates and for which Employee may qualify.\n15. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company’s obligation to make the payments\nprovided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without\nlimitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against Employee or others.\n16. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold from any\npayments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or governmental rule or\nregulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment\nreceived under this Agreement, including, without limitation, any excise tax imposed by section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the termination of\nEmployee’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or any other plan, arrangement or\nagreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”), would constitute a “parachute\npayment” under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum amount\nnecessary to result in no portion of the Total Payments being non-deductible to the Company pursuant to Section 280G of the Code or subject to the\nexcise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 16, including whether a reduction in Total Payments is required, the\namount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting or law firm of\nrecognized standing reasonably selected by the Company (the “Firm”), which may be, but will not be required to be, the Company’s independent\nauditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the Company within fifteen (15) days\nafter receipt of a notice from either the Company or Employee that Employee may receive payments which may be “parachute payments.” If the\nFirm determines that a reduction is required by this Section 16, the Contract Payments consisting of cash severance shall be reduced to the extent\nnecessary so that no portion of the Total Payments shall be subject to the excise tax imposed\n-8-\nby section 4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If\nadditional Contract Payments must be reduced pursuant to this Section 16 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the Contract Payments allocable to time-vested Equity Awards, to\nthe extent necessary to satisfy the requirements of this Section 16. If the Firm determines that none of the Total Payments, after taking into account\nany reduction required by this Section 16, constitutes a “parachute payment” within the meaning of section 280G of the Code, it will, at the same\ntime as it makes such determination, furnish Employee and the Company an opinion that Employee has substantial authority not to report any excise\ntax under section 4999 of the Code on Employee’s federal income tax return.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the possession\nof Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in connection with the\npreparation and issuance of the determinations and calculations contemplated by this Section 16. The fees and expenses of the Firm for its services in\nconnection with the determinations and calculations contemplated by this Section 16 shall be borne by the Company.\n17. Confidential Information. Employee agrees that Employee’s services to the Company have been and will continue to be of a special,\nunique and extraordinary character, and that Employee’s position places Employee in a position of confidence and trust with the Company’s\ncustomers and employees. Employee also recognizes that Employee’s position with the Company will give Employee substantial access to\nConfidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to suffer substantial\nand irreparable damage. Employee recognizes, therefore, that it is in the Company’s legitimate business interest to restrict Employee’s use of\nConfidential Information for any purposes other than the discharge of Employee’s employment duties at the Company, and to limit any potential\nappropriation of Confidential Information by Employee for the benefit of the Company’s competitors and to the detriment of the Company.\nAccordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee’s employment, reveal to any person or entity any\nof the trade secrets or confidential information of the Company or of any third party which the Company is under an obligation to keep confidential\n(including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-how, techniques,\nsystems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) (“Confidential Information”), except as\nmay be required in the ordinary course of performing Employee’s duties as an employee of the Company, and Employee shall keep secret all matters\nentrusted to Employee and shall not use or attempt to use any such information in any manner which may injure or cause loss or may be calculated\nto injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation, Confidential Information also includes\nany and all information, whether or not meeting the legal definition of a trade secret, concerning the Company’s actual, planned or contemplated:\n(i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii) personnel information; (iii) customer, vendor and\nsupplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts, volumes, characteristics,\n-9-\nagreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business operations, internal structures and\nfinancial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company’s services and products; (ix) proposed\nservices and products; (x) contracts with other parties; (xi) performance characteristics of the Company’s products; and (xii) Inventions and Works as\ndefined in Section 18. Confidential Information also includes any and all information of Company’s clients and customers which is deemed\nconfidential by such clients and customers (whether past, present or potential), including, but not limited to: marketing tools, inventions, processes,\ncontact lists, materials, software program code, logic diagrams, flow charts, procedural diagrams, computer programming techniques and know how,\nmaps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no fault of\nEmployee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any confidentiality\nobligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that Employee is requested or\nrequired (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to\ndisclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt notice of such request(s) so that the\nCompany may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or the Company grants a waiver hereunder, Employee may\nfurnish that portion (and only that portion) of the Confidential Information which Employee is legally compelled to disclose and will exercise its\nreasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.\n(c) Further, Employee agrees that during Employee’s employment Employee shall not take, use or permit to be used any notes,\nmemoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any nature\nrelating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the benefit of\nthe Company. Employee further agrees that Employee shall not, after the termination of Employee’s employment, use or permit to be used any such\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials, it being\nagreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately upon the termination of\nEmployee’s employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all copies thereof, to the\nCompany, at its main office.\n(d) Employee agrees that upon the termination of Employee’s employment with the Company, Employee will not take or retain without\nwritten authorization any documents, files or other property of the Company, and Employee will return promptly to the Company any such\ndocuments, files or property in Employee’s possession or custody, including any copies thereof maintained in any medium or format. Employee\nrecognizes that all documents, files and property which Employee has received and will receive from the Company, including but not limited to\nscientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of documents relating to\nbenefits to which Employee might be entitled following the termination of Employee’s employment with the Company), are for the\n- 10-\nexclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee has no claim\nor right to the continued use, possession or custody of such documents, files or property following the termination of Employee’s employment with\nthe Company.\n18. Intellectual Property.\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as defined\nbelow) which are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by\nthe Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and current written records\nof all Inventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program\ncode, procedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that “Inventions,” is defined in this Agreement to include any and all new or useful ideas,\ndevelopments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual property,\nwhether patentable or not (including without limitation any technology, computer programs, software, software program code, logic diagrams,\nflowcharts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter, formula or\ntechnique), and all know-how related thereto, which Employee conceives, makes, reduces to practice, or develops, solely or jointly with others\n(i) which relate to the actual or contemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which\nEmployee has done or may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by\nthe Company, or (iii) which are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the\nCompany, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the Company.\n(c) The Company and Employee agree that “Works” is defined in this Agreement to include any and all materials for which copyright\nprotection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask works,\nartistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other audio-visual\nworks which Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) which relate to the actual or\ncontemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which Employee has done or may do\non behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by the Company, or (iii) which\nare developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with the use of\npremises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n-11 -\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the rights, titles and\ninterests in and to any and all such Inventions and Works that Employee has or may acquire in such Inventions or Works which are conceived, made,\nreduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the Company and for a period of six\n(6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights, trademarks and other intellectual property\nrights in connection therewith, and agrees to take all such actions as may be requested by the Company during Employee’s employment with the\nCompany and at any time thereafter, with respect to any such Inventions or Works to confirm or evidence such assignment, transfer, conveyance or\nownership, and to assist in the Company’s maintenance, enforcement, license, assignment, transfer, or conveyance of rights in respect of the\nInventions or Works. Employee understands that if he is employed by the Company in California, his obligation to assign rights in inventions does\nnot apply to an invention that qualifies fully under the provisions of California Labor Code Section 2870.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee agrees to\nexecute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence and do any\nand all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment, transfer and\nconveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents, trademarks,\ncopyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or to obtain any\nextension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right. By way of further\nexample and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of initiating, maintaining or\ndefending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other proceedings as requested by the\nCompany. In the event that the Company may be unable, for any reason whatsoever, after reasonable effort, to secure Employee’s signature on any\npatent, copyright, trademark or other intellectual property application or other papers, Employee hereby irrevocably designates and appoints the\nCompany and its duly authorized officers and agents, as Employee’s agent and attorney-in-fact to act for and on behalf of Employee to execute,\nacknowledge, swear to, seal and deliver to the Company and to file any such application or applications or other papers, and to do all other lawfully\npermitted acts to further the provisions of Section 18 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the provisions of\nSections 18(d) and 18(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional compensation beyond that\npaid to Employee for the period of time that he is employed by the Company, which compensation, along with the Company’s understandings set\nforth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises and obligations set forth in this\nAgreement.\n- 12-\n(g) Employee expressly acknowledges and states that all Works which are made by Employee (solely or jointly with others) are being\ncreated at the instance of the Company and are “works made for hire,” as that term is defined in the Copyright Act of 1976, 17 USC § 101. In the\nevent that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent jurisdiction not\nto be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to The Company of all\nEmployee’s right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world, including the right to\nprepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not, which have\nbeen conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee’s employment by the Company;\nprovided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or which is the subject\nof a contract preventing Employee’s disclosure of the information to the Company.\n19. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee’s employment with the Company, Company will provide Employee Confidential Information,\nwhich Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company’s trade secrets and with other\nConfidential Information concerning the Company and that Employee’s services shall be of special, unique and extraordinary value to the Company,\nand therefore, the Employee agrees that some restrictions on Employee’s activities during and after Employee’s employment are necessary to protect\nthe goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee’s employment by the Company and, if Employee’s employment with the Company terminates for any\nreason, for a period of one (1) year thereafter (“Covenant Period”), except with the written consent of the Board, Employee shall not directly or\nindirectly, own, control, finance or participate in the ownership, control or financing of any Direct Competitor or Secondary Competitor. For the\npurposes of this Agreement, a “Direct Competitor” is defined as those entities listed on Attachment B, [as shall be modified from time-to-time by\nCompany upon written notice to Employee]. A “Secondary Competitor” is defined as a person, business or enterprise which directly or indirectly\nengages in information technology consulting and technology services, management consulting services, or outsourcing services, including, but not\nlimited to, technology strategy consulting, systems development, enterprise software package implementation and maintenance, data warehousing\nand business intelligence, application testing, application maintenance, infrastructure management, and business process outsourcing, in the\nTerritory. For purposes of this Agreement, Territory is defined as any state in the United States and any country in the world in which the Company\nhas sold or performed any services at the time of the termination of the Employee’s employment with the Company.\n(b) During the Covenant Period, the Employer further agrees that Employee shall not be employed by or provide services in any capacity\nto, a Direct Competitor in any part of the world. In addition, during the Covenant Period, Employee agrees that Employee shall not, in the Territory,\nprovide services the same as or similar to the services that Employee provided to the Company during a one (1) year period immediately preceding\nthe termination of the Employee’s employment with the Company to any Secondary Competitor.\n- 13-\n(c) In further consideration for the Company’s promises herein, Employee agrees that for the period beginning with the termination of\nEmployee’s employment with the Company for any reason, and for a period of one (1) year thereafter, Employee will not directly or indirectly solicit\nor recruit any part-time or full-time employee, representative or consultant of the Company or its subsidiaries or affiliates to work for a third party\nother than the Company or its subsidiaries or affiliates or engage in any activity that would cause any employee, representative or consultant to\nviolate any agreement with the Company or its subsidiaries or affiliates. The foregoing covenant shall not apply to any person after two (2) months\nhave elapsed after the date on which such person’s employment by the Company has terminated.\n(d) The foregoing restrictions shall not be construed to prohibit Employee’s ownership of less than one percent (1%) of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the Securities\nExchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any group of\npersons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising Employee’s rights as a stockholder, or seeks to do any of the\nforegoing.\n20. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and will not be\nconstrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary information arising out\nof any prior business relationship or contract that, in Employee’s best judgment would be utilized in connection with Employee’s employment with\nthe Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary information to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into this\nAgreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) the restrictions\nimposed on Employee by this Agreement are fair, reasonable and proper and required for the protection of the Company’s business interests,\nparticularly its investments in Employee (e.g ., Employee’s job knowledge and skills), its Confidential Information, as well as the goodwill\ndeveloped, and its business relationships, with its clients, customers and prospective clients and customers; and (iii) the restrictions imposed on\nEmployee by this Agreement, particularly, the post-termination restrictions, shall not preclude Employee from earning a living or engaging in\nEmployee’s profession or trade, or pursuing a career or a business.\n- 14-\n21. Equitable Relief.\n(a) Employee acknowledges that the restrictions contained in Sections 17, 18, and 19 hereof are reasonable and necessary to protect the\nlegitimate interests of the Company and its affiliates, that the Company would not have entered into this Agreement in the absence of such\nrestrictions, and that any violation of any provision of those Sections will result in irreparable injury to the Company. Employee represents that\nEmployee’s experience and capabilities are such that the restrictions contained in Section 17, 18, and 19 hereof will not prevent Employee from\nobtaining employment or otherwise earning a living at the same general level of economic benefit as is currently the case. Employee further\nrepresents and acknowledges that (i) Employee has been advised by the Company to consult Employee’s own legal counsel in respect of this\nAgreement, and (ii) that Employee has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with\nEmployee’s counsel.\n(b) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving\nactual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 17, 18, and 19\nhereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The period of the\ninjunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of Sections 17, 18,\nand 19 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable law in any jurisdiction,\nthen such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other limitations permitted by\napplicable law.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section 17, 18, and\n19 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or other equitable\nrelief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction or will not accept\njurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court in any such suit,\naction or proceeding, and (iii) waives any objection which Employee may have to the laying of venue of any such suit, action or proceeding in any\nsuch court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in a manner\npermitted by the notice provisions of Section 24 hereof.\n22. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee’s employment with the Company;\nprovided, however, that after the termination of Employee’s employment during the term of this Agreement, this Agreement shall remain in effect\nuntil all of the obligations of the Parties hereunder are satisfied or have expired.\n23. Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance satisfactory\nto Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance with the terms\nhereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the same extent that\nthe Company would be required to perform if no such succession or successions had taken place. Failure of the Company to obtain such agreement\nprior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the Company shall mean the\nCompany as herein before defined and any such successor or successors to its business and/or assets, jointly and severally.\n- 15-\n24. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be\nin writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express courier\nservice, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n[insert information]\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the last\naddress of the Company or to any successor pursuant to this Section 24 shall be deemed sufficient for the purposes hereof. Any such notice shall be\ndeemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S. Postal Service\nin the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n25. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving effect to\nany conflict of laws provisions.\n26. Contents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Conduct Code, supersedes all prior agreements with respect to the subject matter hereof, sets forth the\nentire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended or terminated\nexcept upon written amendment executed by Employee and executed on the Company’s behalf by a duly authorized officer, except for revisions or\nadditions to Attachment B, which may be unilaterally modified by Company upon written notice to Employee; provided, however, that this\nAgreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award agreements regarding stock\noptions, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance units or other stock-based awards\nissued to Employee prior to the effective date of this Agreement. The provisions of this Agreement may provide for payments to Employee under\ncertain compensation or bonus plans under circumstances where such plans would not provide for\n- 16-\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in such\nplans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany’s Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in the\nimposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company, or as\nchanging or modifying the “at will” nature of Employee’s employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the\nrespective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee’s Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devises, legates or other designees or, if there\nis no such designee, to Employee’s estate.\n27. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted, and\nthe remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n28. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other right or\nremedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given hereunder or now or\nhereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or existing at law or in\nequity shall be construed as a waiver thereof.\n29. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of which is\nan original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other\ncounterparts.\n30. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of section 409A of the Code, and specifically, with the\n“short-term deferral exception” under Treas. Reg. section 1.409A-1(b)(4) and the “separation pay exception” under Treas. Reg. section 1.409A -1(b)\n(9)(iii), and shall in all respects be administered and construed in accordance with section 409A of the Code. If any payment or benefit hereunder\ncannot be provided or made at the time specified herein without incurring sanctions on Employee under section 409A of the Code,\n- 17-\nthen such payment or benefit shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of section\n409A of the Code, all payments to be made upon a Termination of Employment under this Agreement may only be made upon a “separation from\nservice” (within the meaning of such term under section 409A of the Code), each payment made under this Agreement shall be treated as a separate\npayment, the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments, and if a\npayment is not made by the designated payment date under this Agreement, the payment shall be made by December 31 of the calendar year in\nwhich the designated date occurs. To the extent that any payment provided for hereunder would be subject to additional tax under section 409A of\nthe Code, or would cause the administration of this Agreement to fail to satisfy the requirements of section 409A of the Code, such provision shall\nbe deemed null and void to the extent permitted by applicable law, and any such amount shall be payable in accordance with 6(b) below. In no event\nshall the Employee, directly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and\nform of payment of any amounts or payments of “deferred compensation” (as defined under Treas. Reg. section 1.409A-1(b)(1), after giving effect\nto the exemptions in Treas. Reg. sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement\nbetween the Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b) Payment Delay. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any payments\nor benefits otherwise payable under this Agreement as a result of Employee’s “separation from service” with the Company to prevent the imposition\nof any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement of the payment of any such\npayments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee) that are not otherwise\npaid within the “short-term deferral exception” under Treas. Reg. section 1.409A-1(b)(4) and the “separation pay exception” under Treas. Reg.\nsection 1.409A -1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Employee’s “separation of service” with\nthe Company. If any payments are postponed due to such requirements, such postponed amounts will be paid to Employee in a lump sum on the first\npayroll date that occurs after the date that is six months following Employee’s “separation of service” with the Company. If Employee dies during\nthe postponement period prior to the payment of the postponed amount, the amounts withheld on account of section 409A of the Code shall be paid\nto the personal representative of Employee’s estate within sixty (60) days after the date of the Employee’s death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements\nof section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Employee’s\nlifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar\nyear may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made\non or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the right to reimbursement is not subject to\nliquidation or exchange for another benefit.\n- 18-\n31. Recoupment Policy. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any clawback or\nrecoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without notice (the\n“Recoupment Policy”) to further the Company’s interests in enhancing its corporate governance practices and/or to comply with applicable law, rules\nor regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on which shares of the\ncommon stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the Company may seek to recoup\nall or part of any severance payments, bonus or other incentive compensation paid to certain officers and former officers, including Equity Awards,\nin the event that the Company is required to restate its financial statements. In consideration of the continued benefits to be received from the\nCompany (or a subsidiary) and the right to participate in, and receive future awards under, the Company’s cash and equity-based incentive programs,\nEmployee hereby acknowledges, understands and agrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards, paid or\nawarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent provided in the\nRecoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this Agreement or\nhereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy even if the\nRecoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms, and Employee\npromptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the Recoupment Policy for\nrepayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity Awards, subject to the\nRecoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and Employee is not\nwaiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment Policy, other than\n(i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards and (ii) waiving any\nclaim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n- 19-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above written.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nAttest:\nBy:\nIts:\nWitness\n[Employee]\n- 20-\nATTACHMENT A\n1. The following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed, authored,\ncreated, drawn or written by me alone or jointly with others prior to my engagement by the Company.\n̈\nNone.\nSee below.\nx\nDue to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be included on the\nabove-described list.\n̈\nAdditional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n- 21-\nATTACHMENT B – List of Direct Competitors\n- 22-\nSCHEDULE TO EXHIBIT 10.4 – FORM OF AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE,\nNON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION HAS ENTERED INTO AN AMENDED AND RESTATED EXECUTIVE\nEMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT WITH EACH OF THE\nFOLLOWING PERSONS:\nFRANCISCO D’SOUZA\nGORDON COBURN\nKAREN MCLOUGHLIN\nRAMAKRISHNAN CHANDRASEKARAN\nRAJEEV MEHTA\nMALCOLM FRANK\nSTEVEN SCHWARTZ\nIDENTICAL TO THE FORM PROVIDED HEREIN.\n- 23-	EX-10.4 2 d450416dex104.htm EX-10.4\nExhibit 10.4\nAMENDED AND RESTATED EXECUTIVE EMPL.OYMENT\nAND NON-DISCIL.OSURE, NON-COMPETITION,\nAND INVENTION ASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment Agreement (this\n“Agreement”) is made as of the ____ day of , 20__ (the “Effective Date”) by and between Cognizant Technology Solutions Corporation, a\nDelaware corporation (the “Company” (where applicable, the definition of Company shall include the Company’s subsidiaries and affiliates and any\nsuccessors or assigns)), and (“Employee™).\nWHEREAS, Employee is currently employed by the Company as its ; and\nWHEREAS, the Company desires to continue to retain the services of Employee; and\nWHEREAS, the Parties desire to amend and restate, in its entirety, the parties’ prior agreements pertaining to Employee’s employment,\nand set forth the new terms and conditions of Employee’s employment by the Company;\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and intending to\nbe legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:\n1. Definitions.\n(a) “Annual Base Salary” shall mean the rate of annual base salary paid or payable to Employee by the Company (including authorized\ndeferrals and salary reduction amounts) immediately prior to Employee’s Termination Date.\n(b) “Board” shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) “Cause” shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee’s supervisor, (iii) failure by the Employee to observe material\npolicies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor involving\nmoral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) “Disability” means Employee’s total and permanent disability as determined in accordance with the Company’s long-term disability\npolicy, whether or not Employee is covered by such policy.\n1-\n(f) “Good Reason” means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee’s authority, duties or responsibilities;\n(ii) A material diminution in Employee’s overall compensation package, which is not otherwise caused by an overall policy by\nthe Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee’s consent, in the principal place of work of the Employee to a location that is more than 50\nmiles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n() “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon,\nand (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee’s employment under the provision so\nindicated.\n(h) “Termination Date” shall mean the last day of Employee’s employment with the Company.\n(i) “Termination of Employment” shall mean the termination of Employee’s active employment relationship with the Company.\n2. Employment. Company hereby continues to employ Employee, and Employee hereby continues to accept such employment, upon the terms\nand conditions set forth herein.\n3. Duties.\n(a) Position. Employee continues to be employed as [insert position title] and shall have the duties and responsibilities assigned by\n[insert title] both upon initial hire and as may be reasonably assigned from time to time. Employee shall perform faithfully and diligently all duties\nassigned to Employee. Company reserves the right to modify Employee’s position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [insert title].\n \n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee’s best efforts and entire\nbusiness time and attention to the Company’s Business during the term of Employee’s employment with the Company. Employee agrees that, during\nthe term of Employee’s employment, except as otherwise approved in writing by the Company, which approval the Company may in its absolute\ndiscretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction with any\nperson, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or entity other\nthan the Company; provided that the\n-\nforegoing is not intended to prevent an Employee from pursuing hobbies or participating in any other activity which is not to the detriment of\nCompany. Employee further acknowledges and agrees that Employee has access to the Company’s Core Values and Standards of Business Conduct\n(the “Conduct Code”) located at www.cognizant.com, and Employee has read and understands the Conduct Code and shall abide by all the terms of\nsaid Conduct Code, as may be amended from time to time, and said Conduct Code shall be incorporated into this Agreement. Employee will abide\nby all policies and decisions made by Company, as well as all applicable federal, state and local laws, regulations or ordinances. Employee will act in\nthe best interest of Company at all times.\n(c) Work Location. Employee’s principal place of work shall be located in [insert city, state], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee’s employment with the Company will be “at will,” meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, Company shall pay to Employee\na base salary as most recently determined by the Compensation Committee of the Board and last communicated to the Employee, as may be\nmodified by the Compensation Committee of the Board, payable in accordance with the normal payroll practices of Company, less required\ndeductions for state and federal withholding tax, social security and all other employment taxes and payroll deductions. In the event Employee’s\nemployment under this Agreement is terminated by either party, for any reason, Employee will earn the Annual Base Salary prorated to the date of\ntermination.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation Committee\nof the Board in accordance with the bonus plan(s) provided to Employee by Company, in accordance with the terms and conditions of such plan(s).\n(c) Stock Options and Other Equity Awards. Except as set forth herein, this Agreement does not modify or change the existing\nagreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an “Equity Award” and\ncollectively, “Equity Awards”) previously issued to Employee.\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to Employees of\nCompany subject to the terms and conditions of Company’s benefit plan documents. Company reserves the right to change or eliminate the fringe\nbenefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance of\nEmployee’s duties on behalf of Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with Company’s policies.\n_3-\n8. Company Access. Employee agrees and consents that, during the term of Employee’s employment with the Company and thereafter, the\nCompany may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and internet access system\nprovided by the Company with or without notice to Employee and that such review, audit, interception, access, or disclosure may occur during or\nafter working hours. Employee further consents and agrees that the Company may, at any time, access and review the contents of all computers,\ncomputer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations which are either on the\nCompany’s premises or which are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee’s employment with the Company is involuntarily terminated by the\nCompany for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case\nEmployee’s employment termination becomes effective before any Change in Control (as defined in Section 9(e) below) has occurred following the\ndate of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does not\nrevoke the Release (as defined in Section 11) and the Release first becomes effective:\n(i) Employee shall receive continued payment of the Employee’s Annual Base Salary, paid in regular installments in accordance\nwith the Company’s normal payroll practices, over a period of twenty-two (22) months, commencing on or as soon as practicable after the date the\nRelease becomes effective and within thirty-five days following Employee’s Termination Date.\n(ii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay\nthe Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee\nand, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified\nunder this Section 9(a)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for\nany reason before the expiration of the 12-month period.\n(iii) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nand would have vested had Employee remained employed by the Company during the twelve (12) month period following Employee’s Termination\nDate shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such Equity Awards shall continue\nto be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n4-\n(iv) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on achievement of\nperformance objective(s), to the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates,\nthe portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12) month period\nfollowing Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such Equity Award shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(a)(v) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary Termination that becomes\neffective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in Control following the date of\nthis Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in lieu of, and not in addition to, the\npayments and benefits described in Section 9(a); provided that Employee executes and does not revoke the Release (as defined in Section 11) and the\nRelease first becomes effective:\n(i) Employee shall receive a cash payment equal to one times Employee’s Annual Base Salary, such amount to be paid in regular\ninstallments in accordance with the Company’s normal payroll practices over a period of twelve (12) months, commencing on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(ii) Employee shall receive a cash payment equal to the amount of the target annual bonus that the Employee would otherwise\nhave been eligible to receive for the performance year in which the Employee’s Termination Date occurs, assuming for this purpose that the\nEmployee and Company achieved 100% of applicable performance targets and objectives. Payment shall be made in a lump sum payment on or as\nsoon as practicable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(iii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee and,\nwhere applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and dependents,\nare eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified under this\nSection 9(b)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any\nreason before the expiration of the 12-month period.\n_5-\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nshall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity Awards shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the performance\nobjective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates, such\nEquity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date, the Company shall\npro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of Closing of the Change in\nControl, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Closing Date, and\ntreat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of the pro-\nrated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(c) Termination Due to Death, Disability, or For Cause. If Employee is terminated due to death, Disability, or for Cause, Employee shall\nreceive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination Date and any benefits accrued and\nearned in accordance with the terms of any applicable benefit plans and programs of the Company; all other Company obligations to Employee will\nbe extinguished as of the Termination Date.\n(d) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to the other\nParties hereto given in accordance with Section 24 hereof.\n(e) Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall have the meaning set forth in\nthe Company’s 2009 Incentive Compensation Plan, as amended from time to time or any successor plan in effect as of Employee’s Termination\nDate.\n-6-\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the expiration of the\ncure period and Employee’s actual termination as described below, such resignation shall be deemed an Involuntary Termination for purposes of this\nAgreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set forth in this\nAgreement, including Section 11. Employee must provide written notice to the Company of his intent to terminate his employment for Good Reason\nwithin thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have a period of thirty\n(30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in Employee’s notice of\ntermination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period, Employee must terminate his\nemployment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the termination to be considered a Good\nReason termination under this Agreement.\n11. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9 and 10, as applicable (except for those\npayments that are owed pursuant to applicable law and/or are specifically not conditioned upon Employee’s execution of a release), unless Employee\nexecutes, and does not revoke, the Company’s then standard written general release (the “Release”) of any and all claims against the Company and\nall related parties with respect to all matters arising out of Employee’s employment by the Company (other than any entitlements under the terms of\nthis Agreement or under any other plans or programs of the Company in which Employee participated and under which Employee has accrued and\nearned a benefit) or the termination thereof. The Company will provide Employee with the form of release agreement within seven days after\nEmployee’s separation from service. To be entitled to the severance or other benefits, Employee must execute and deliver to the Company the release\nagreement on or before the last day of the minimum required waiver consideration period provided under the Age Discrimination in Employment\nAct or other applicable law or such later date specified in the release agreement. If Employee timely delivers an executed release agreement to the\nCompany, and Employee does not revoke the release agreement during the minimum revocation period required under applicable law, if any, the\nseverance or other benefits shall be paid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to\nSection 30(b) of this Agreement. If, however, the period during which Employee has discretion to execute or revoke the release agreement straddles\ntwo calendar years, the cash severance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of\nthe two calendar years, regardless of within which calendar year Employee actually delivers the executed release agreement to the Company, subject\nto the release agreement first becoming effective. Consistent with section 409A of the Code, Employee may not, directly or indirectly, designate the\ncalendar year of payment. Nothing in this Section 11 shall be construed to alter the terms of this Agreement that condition Employee’s entitlement to\nany severance or other benefits upon Employee’s compliance with the restrictive covenants and any other terms and conditions specified in this\nAgreement.\n12. Other Payments. Any payments and benefits that become due under Sections 9 and 10 hereof shall be in addition to (but not in duplication\nof) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except that Employee\nshall not be entitled to any payments and benefits under the Company’s then current severance pay policies.\n_7-\n13. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking\nother employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation earned by other\nemployment or otherwise; provided, however, that any obligation of the Company to provide COBRA healthcare continuation coverage under\nSections 4 and 5 hereof shall cease upon Employee becoming covered under a healthcare plan of another employer.\n14. Non-Exclusivity of Rights. Except as provided in Section 12, nothing in this Agreement shall prevent or limit Employee’s continuing or\nfuture participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of its subsidiaries or\naffiliates and for which Employee may qualify.\n15. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company’s obligation to make the payments\nprovided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without\nlimitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against Employee or others.\n16. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold from any\npayments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or governmental rule or\nregulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment\nreceived under this Agreement, including, without limitation, any excise tax imposed by section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the termination of\nEmployee’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or any other plan, arrangement or\nagreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”), would constitute a “parachute\npayment” under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum amount\nnecessary to result in no portion of the Total Payments being non-deductible to the Company pursuant to Section 280G of the Code or subject to the\nexcise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 16, including whether a reduction in Total Payments is required, the\namount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting or law firm of\nrecognized standing reasonably selected by the Company (the “Firm”), which may be, but will not be required to be, the Company’s independent\nauditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the Company within fifteen (15) days\nafter receipt of a notice from either the Company or Employee that Employee may receive payments which may be “parachute payments.” If the\nFirm determines that a reduction is required by this Section 16, the Contract Payments consisting of cash severance shall be reduced to the extent\nnecessary so that no portion of the Total Payments shall be subject to the excise tax imposed\n_8-\nby section 4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If\nadditional Contract Payments must be reduced pursuant to this Section 16 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the Contract Payments allocable to time-vested Equity Awards, to\nthe extent necessary to satisfy the requirements of this Section 16. If the Firm determines that none of the Total Payments, after taking into account\nany reduction required by this Section 16, constitutes a “parachute payment” within the meaning of section 280G of the Code, it will, at the same\ntime as it makes such determination, furnish Employee and the Company an opinion that Employee has substantial authority not to report any excise\ntax under section 4999 of the Code on Employee’s federal income tax return.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the possession\nof Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in connection with the\npreparation and issuance of the determinations and calculations contemplated by this Section 16. The fees and expenses of the Firm for its services in\nconnection with the determinations and calculations contemplated by this Section 16 shall be borne by the Company.\n17. Confidential Information. Employee agrees that Employee’s services to the Company have been and will continue to be of a special,\nunique and extraordinary character, and that Employee’s position places Employee in a position of confidence and trust with the Company’s\ncustomers and employees. Employee also recognizes that Employee’s position with the Company will give Employee substantial access to\nConfidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to suffer substantial\nand irreparable damage. Employee recognizes, therefore, that it is in the Company’s legitimate business interest to restrict Employee’s use of\nConfidential Information for any purposes other than the discharge of Employee’s employment duties at the Company, and to limit any potential\nappropriation of Confidential Information by Employee for the benefit of the Company’s competitors and to the detriment of the Company.\nAccordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee’s employment, reveal to any person or entity any\nof the trade secrets or confidential information of the Company or of any third party which the Company is under an obligation to keep confidential\n(including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-how, techniques,\nsystems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) (“Confidential Information”), except as\nmay be required in the ordinary course of performing Employee’s duties as an employee of the Company, and Employee shall keep secret all matters\nentrusted to Employee and shall not use or attempt to use any such information in any manner which may injure or cause loss or may be calculated\nto injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation, Confidential Information also includes\nany and all information, whether or not meeting the legal definition of a trade secret, concerning the Company’s actual, planned or contemplated:\n(i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii) personnel information; (iii) customer, vendor and\nsupplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts, volumes, characteristics,\n9.\nagreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business operations, internal structures and\nfinancial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company’s services and products; (ix) proposed\nservices and products; (x) contracts with other parties; (xi) performance characteristics of the Company’s products; and (xii) Inventions and Works as\ndefined in Section 18. Confidential Information also includes any and all information of Company’s clients and customers which is deemed\nconfidential by such clients and customers (whether past, present or potential), including, but not limited to: marketing tools, inventions, processes,\ncontact lists, materials, software program code, logic diagrams, flow charts, procedural diagrams, computer programming techniques and know how,\nmaps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no fault of\nEmployee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any confidentiality\nobligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that Employee is requested or\nrequired (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to\ndisclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt notice of such request(s) so that the\nCompany may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or the Company grants a waiver hereunder, Employee may\nfurnish that portion (and only that portion) of the Confidential Information which Employee is legally compelled to disclose and will exercise its\nreasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.\n(c) Further, Employee agrees that during Employee’s employment Employee shall not take, use or permit to be used any notes,\nmemoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any nature\nrelating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the benefit of\nthe Company. Employee further agrees that Employee shall not, after the termination of Employee’s employment, use or permit to be used any such\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials, it being\nagreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately upon the termination of\nEmployee’s employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all copies thereof, to the\nCompany, at its main office.\n(d) Employee agrees that upon the termination of Employee’s employment with the Company, Employee will not take or retain without\nwritten authorization any documents, files or other property of the Company, and Employee will return promptly to the Company any such\ndocuments, files or property in Employee’s possession or custody, including any copies thereof maintained in any medium or format. Employee\nrecognizes that all documents, files and property which Employee has received and will receive from the Company, including but not limited to\nscientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of documents relating to\nbenefits to which Employee might be entitled following the termination of Employee’s employment with the Company), are for the\n-10-\nexclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee has no claim\nor right to the continued use, possession or custody of such documents, files or property following the termination of Employee’s employment with\nthe Company.\n18. Intellectual Property.\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as defined\nbelow) which are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by\nthe Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and current written records\nof all Inventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program\ncode, procedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that “Inventions,” is defined in this Agreement to include any and all new or useful ideas,\ndevelopments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual property,\nwhether patentable or not (including without limitation any technology, computer programs, software, software program code, logic diagrams,\nflowcharts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter, formula or\ntechnique), and all know-how related thereto, which Employee conceives, makes, reduces to practice, or develops, solely or jointly with others\n(i) which relate to the actual or contemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which\nEmployee has done or may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by\nthe Company, or (iii) which are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the\nCompany, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the Company.\n(c) The Company and Employee agree that “Works” is defined in this Agreement to include any and all materials for which copyright\nprotection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask works,\nartistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other audio-visual\nworks which Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) which relate to the actual or\ncontemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which Employee has done or may do\non behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by the Company, or (iii) which\nare developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with the use of\npremises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n-11-\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the rights, titles and\ninterests in and to any and all such Inventions and Works that Employee has or may acquire in such Inventions or Works which are conceived, made,\nreduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the Company and for a period of six\n(6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights, trademarks and other intellectual property\nrights in connection therewith, and agrees to take all such actions as may be requested by the Company during Employee’s employment with the\nCompany and at any time thereafter, with respect to any such Inventions or Works to confirm or evidence such assignment, transfer, conveyance or\nownership, and to assist in the Company’s maintenance, enforcement, license, assignment, transfer, or conveyance of rights in respect of the\nInventions or Works. Employee understands that if he is employed by the Company in California, his obligation to assign rights in inventions does\nnot apply to an invention that qualifies fully under the provisions of California Labor Code Section 2870.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee agrees to\nexecute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence and do any\nand all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment, transfer and\nconveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents, trademarks,\ncopyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or to obtain any\nextension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right. By way of further\nexample and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of initiating, maintaining or\ndefending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other proceedings as requested by the\nCompany. In the event that the Company may be unable, for any reason whatsoever, after reasonable effort, to secure Employee’s signature on any\npatent, copyright, trademark or other intellectual property application or other papers, Employee hereby irrevocably designates and appoints the\nCompany and its duly authorized officers and agents, as Employee’s agent and attorney-in-fact to act for and on behalf of Employee to execute,\nacknowledge, swear to, seal and deliver to the Company and to file any such application or applications or other papers, and to do all other lawfully\npermitted acts to further the provisions of Section 18 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the provisions of\nSections 18(d) and 18(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional compensation beyond that\npaid to Employee for the period of time that he is employed by the Company, which compensation, along with the Company’s understandings set\nforth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises and obligations set forth in this\nAgreement.\n-12-\n(g) Employee expressly acknowledges and states that all Works which are made by Employee (solely or jointly with others) are being\ncreated at the instance of the Company and are “works made for hire,” as that term is defined in the Copyright Act of 1976, 17 USC § 101. In the\nevent that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent jurisdiction not\nto be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to The Company of all\nEmployee’s right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world, including the right to\nprepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not, which have\nbeen conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee’s employment by the Company;\nprovided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or which is the subject\nof a contract preventing Employee’s disclosure of the information to the Company.\n19. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee’s employment with the Company, Company will provide Employee Confidential Information,\nwhich Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company’s trade secrets and with other\nConfidential Information concerning the Company and that Employee’s services shall be of special, unique and extraordinary value to the Company,\nand therefore, the Employee agrees that some restrictions on Employee’s activities during and after Employee’s employment are necessary to protect\nthe goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee’s employment by the Company and, if Employee’s employment with the Company terminates for any\nreason, for a period of one (1) year thereafter (“Covenant Period”), except with the written consent of the Board, Employee shall not directly or\nindirectly, own, control, finance or participate in the ownership, control or financing of any Direct Competitor or Secondary Competitor. For the\npurposes of this Agreement, a “Direct Competitor” is defined as those entities listed on Attachment B, [as shall be modified from time-to-time by\nCompany upon written notice to Employee]. A “Secondary Competitor” is defined as a person, business or enterprise which directly or indirectly\nengages in information technology consulting and technology services, management consulting services, or outsourcing services, including, but not\nlimited to, technology strategy consulting, systems development, enterprise software package implementation and maintenance, data warehousing\nand business intelligence, application testing, application maintenance, infrastructure management, and business process outsourcing, in the\nTerritory. For purposes of this Agreement, Territory is defined as any state in the United States and any country in the world in which the Company\nhas sold or performed any services at the time of the termination of the Employee’s employment with the Company.\n(b) During the Covenant Period, the Employer further agrees that Employee shall not be employed by or provide services in any capacity\nto, a Direct Competitor in any part of the world. In addition, during the Covenant Period, Employee agrees that Employee shall not, in the Territory,\nprovide services the same as or similar to the services that Employee provided to the Company during a one (1) year period immediately preceding\nthe termination of the Employee’s employment with the Company to any Secondary Competitor.\n-13-\n(c) In further consideration for the Company’s promises herein, Employee agrees that for the period beginning with the termination of\nEmployee’s employment with the Company for any reason, and for a period of one (1) year thereafter, Employee will not directly or indirectly solicit\nor recruit any part-time or full-time employee, representative or consultant of the Company or its subsidiaries or affiliates to work for a third party\nother than the Company or its subsidiaries or affiliates or engage in any activity that would cause any employee, representative or consultant to\nviolate any agreement with the Company or its subsidiaries or affiliates. The foregoing covenant shall not apply to any person after two (2) months\nhave elapsed after the date on which such person’s employment by the Company has terminated.\n(d) The foregoing restrictions shall not be construed to prohibit Employee’s ownership of less than one percent (1%) of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the Securities\nExchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any group of\npersons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising Employee’s rights as a stockholder, or seeks to do any of the\nforegoing.\n20. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and will not be\nconstrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary information arising out\nof any prior business relationship or contract that, in Employee’s best judgment would be utilized in connection with Employee’s employment with\nthe Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary information to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into this\nAgreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) the restrictions\nimposed on Employee by this Agreement are fair, reasonable and proper and required for the protection of the Company’s business interests,\nparticularly its investments in Employee (e.g., Employee’s job knowledge and skills), its Confidential Information, as well as the goodwill\ndeveloped, and its business relationships, with its clients, customers and prospective clients and customers; and (iii) the restrictions imposed on\nEmployee by this Agreement, particularly, the post-termination restrictions, shall not preclude Employee from earning a living or engaging in\nEmployee’s profession or trade, or pursuing a career or a business.\n-14-\n21. Equitable Relief.\n(a) Employee acknowledges that the restrictions contained in Sections 17, 18, and 19 hereof are reasonable and necessary to protect the\nlegitimate interests of the Company and its affiliates, that the Company would not have entered into this Agreement in the absence of such\nrestrictions, and that any violation of any provision of those Sections will result in irreparable injury to the Company. Employee represents that\nEmployee’s experience and capabilities are such that the restrictions contained in Section 17, 18, and 19 hereof will not prevent Employee from\nobtaining employment or otherwise earning a living at the same general level of economic benefit as is currently the case. Employee further\nrepresents and acknowledges that (i) Employee has been advised by the Company to consult Employee’s own legal counsel in respect of this\nAgreement, and (ii) that Employee has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with\nEmployee’s counsel.\n(b) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving\nactual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 17, 18, and 19\nhereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The period of the\ninjunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of Sections 17, 18,\nand 19 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable law in any jurisdiction,\nthen such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other limitations permitted by\napplicable law.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section 17, 18, and\n19 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or other equitable\nrelief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction or will not accept\njurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court in any such suit,\naction or proceeding, and (iii) waives any objection which Employee may have to the laying of venue of any such suit, action or proceeding in any\nsuch court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in a manner\npermitted by the notice provisions of Section 24 hereof.\n22. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee’s employment with the Company;\nprovided, however, that after the termination of Employee’s employment during the term of this Agreement, this Agreement shall remain in effect\nuntil all of the obligations of the Parties hereunder are satisfied or have expired.\n23. Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance satisfactory\nto Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance with the terms\nhereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the same extent that\nthe Company would be required to perform if no such succession or successions had taken place. Failure of the Company to obtain such agreement\nprior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the Company shall mean the\nCompany as herein before defined and any such successor or successors to its business and/or assets, jointly and severally.\n-15-\n24. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be\nin writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express courier\nservice, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n[insert information]\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the last\naddress of the Company or to any successor pursuant to this Section 24 shall be deemed sufficient for the purposes hereof. Any such notice shall be\ndeemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S. Postal Service\nin the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n25. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving effect to\nany conflict of laws provisions.\n26. Contents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Conduct Code, supersedes all prior agreements with respect to the subject matter hereof, sets forth the\nentire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended or terminated\nexcept upon written amendment executed by Employee and executed on the Company’s behalf by a duly authorized officer, except for revisions or\nadditions to Attachment B, which may be unilaterally modified by Company upon written notice to Employee; provided, however, that this\nAgreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award agreements regarding stock\noptions, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance units or other stock-based awards\nissued to Employee prior to the effective date of this Agreement. The provisions of this Agreement may provide for payments to Employee under\ncertain compensation or bonus plans under circumstances where such plans would not provide for\n-16-\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in such\nplans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany’s Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in the\nimposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company, or as\nchanging or modifying the “at will” nature of Employee’s employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the\nrespective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee’s Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devises, legates or other designees or, if there\nis no such designee, to Employee’s estate.\n27. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted, and\nthe remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n28. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other right or\nremedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given hereunder or now or\nhereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or existing at law or in\nequity shall be construed as a waiver thereof.\n29. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of which is\nan original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other\ncounterparts.\n30. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of section 409A of the Code, and specifically, with the\n“short-term deferral exception” under Treas. Reg. section 1.409A-1(b)(4) and the “separation pay exception” under Treas. Reg. section 1.409A-1(b)\n(9)(iii), and shall in all respects be administered and construed in accordance with section 409A of the Code. If any payment or benefit hereunder\ncannot be provided or made at the time specified herein without incurring sanctions on Employee under section 409A of the Code,\n \n-17-\nthen such payment or benefit shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of section\n409A of the Code, all payments to be made upon a Termination of Employment under this Agreement may only be made upon a “separation from\nservice” (within the meaning of such term under section 409A of the Code), each payment made under this Agreement shall be treated as a separate\npayment, the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments, and if a\npayment is not made by the designated payment date under this Agreement, the payment shall be made by December 31 of the calendar year in\nwhich the designated date occurs. To the extent that any payment provided for hereunder would be subject to additional tax under section 409A of\nthe Code, or would cause the administration of this Agreement to fail to satisfy the requirements of section 409A of the Code, such provision shall\nbe deemed null and void to the extent permitted by applicable law, and any such amount shall be payable in accordance with 6(b) below. In no event\nshall the Employee, directly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and\nform of payment of any amounts or payments of “deferred compensation” (as defined under Treas. Reg. section 1.409A-1(b)(1), after giving effect\nto the exemptions in Treas. Reg. sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement\nbetween the Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b) Payment Delay. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any payments\nor benefits otherwise payable under this Agreement as a result of Employee’s “separation from service” with the Company to prevent the imposition\nof any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement of the payment of any such\npayments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee) that are not otherwise\npaid within the “short-term deferral exception” under Treas. Reg. section 1.409A-1(b)(4) and the “separation pay exception” under Treas. Reg.\nsection 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Employee’s “separation of service” with\nthe Company. If any payments are postponed due to such requirements, such postponed amounts will be paid to Employee in a lump sum on the first\npayroll date that occurs after the date that is six months following Employee’s “separation of service” with the Company. If Employee dies during\nthe postponement period prior to the payment of the postponed amount, the amounts withheld on account of section 409A of the Code shall be paid\nto the personal representative of Employee’s estate within sixty (60) days after the date of the Employee’s death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements\nof section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Employee’s\nlifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar\nyear may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made\non or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the right to reimbursement is not subject to\nliquidation or exchange for another benefit.\n-18-\n31. Recoupment Policy. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any clawback or\nrecoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without notice (the\n“Recoupment Policy”) to further the Company’s interests in enhancing its corporate governance practices and/or to comply with applicable law, rules\nor regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on which shares of the\ncommon stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the Company may seek to recoup\nall or part of any severance payments, bonus or other incentive compensation paid to certain officers and former officers, including Equity Awards,\nin the event that the Company is required to restate its financial statements. In consideration of the continued benefits to be received from the\nCompany (or a subsidiary) and the right to participate in, and receive future awards under, the Company’s cash and equity-based incentive programs,\nEmployee hereby acknowledges, understands and agrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards, paid or\nawarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent provided in the\nRecoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this Agreement or\nhereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy even if the\nRecoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms, and Employee\npromptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the Recoupment Policy for\nrepayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity Awards, subject to the\nRecoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and Employee is not\nwaiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment Policy, other than\n(i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards and (ii) waiving any\nclaim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n-19-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above written.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nAttest: By:\nIts:\nWitness [Employee]\n-20-\nATTACHMENT A\n1. The following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed, authored,\ncreated, drawn or written by me alone or jointly with others prior to my engagement by the Company.\nNone.\nSee below.\nX Due to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be included on the\nabove-described list.\nAdditional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n21-\n \nATTACHMENT B - List of Direct Competitors\n22\nSCHEDULE TO EXHIBIT 10.4 - FORM OF AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE,\nNON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION HAS ENTERED INTO AN AMENDED AND RESTATED EXECUTIVE\nEMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT WITH EACH OF THE\nFOLLOWING PERSONS:\nFRANCISCO D’SOUZA\nGORDON COBURN\nKAREN MCLOUGHLIN\nRAMAKRISHNAN CHANDRASEKARAN\nRAJEEV MEHTA\nMALCOLM FRANK\nSTEVEN SCHWARTZ\nIDENTICAL TO THE FORM PROVIDED HEREIN.\n-23-	EX-10.4 2 d450416dex104.htm EX-10.4\nExhibit 10.4\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT\nAND NON-DISCLOSURE, NON-COMPETITION,\nAND INVENTION ASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment Agreement (this\n"Agreement") is made as of the\nday of 20_ (the "Effective Date") by and between Cognizant Technology Solutions Corporation,\na\nDelaware corporation (the "Company" (where applicable, the definition of Company shall include the Company's subsidiaries and affiliates and any\nsuccessors or assigns)), and ("Employee").\nWHEREAS, Employee is currently employed by the Company as its\nand\nWHEREAS, the Company desires to continue to retain the services of Employee; and\nWHEREAS, the Parties desire to amend and restate, in its entirety, the parties' prior agreements pertaining to Employee's employment,\nand set forth the new terms and conditions of Employee's employment by the Company;\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and intending to\nbe legally bound hereby, the Company and Employee (individually a "Party" and together, the "Parties") agree as follows:\n1. Definitions.\n(a) "Annual Base Salary." shall mean the rate of annual base salary paid or payable to Employee by the Company (including authorized\ndeferrals and salary reduction amounts) immediately prior to Employee's Termination Date.\n(b) "Board" shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) "Cause" shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee's supervisor, (iii) failure by the Employee to observe material\npolicies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor involving\nmoral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) "Code" means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) "Disability." means Employee's total and permanent disability as determined in accordance with the Company's long-term disability\npolicy, whether or not Employee is covered by such policy.\n-1-\n(f) "Good Reason" means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee's authority, duties or responsibilities;\n(ii) A material diminution in Employee's overall compensation package, which is not otherwise caused by an overall policy\nby\nthe Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee's consent, in the principal place of work of the Employee to a location that is more than 50\nmiles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) "Notice of Termination" means a written notice which (i) indicates the specific termination provision in this Agreement relied upon,\nand (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee's employment under the provision so\nindicated.\n(h) "Termination Date" shall mean the last day of Employee's employment with the Company.\n(i) "Termination of Employment" shall mean the termination of Employee's active employment relationship with the Company.\n2. Employment. Company hereby continues to employ Employee, and Employee hereby continues to accept such employment, upon the terms\nand conditions set forth herein.\n3. Duties.\n(a) Position. Employee continues to be employed as [insert position title] and shall have the duties and responsibilities assigned by\n[insert title] both upon initial hire and as may be reasonably assigned from time to time. Employee shall perform faithfully and diligently all duties\nassigned to Employee. Company reserves the right to modify Employee's position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [insert title].\n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee's best efforts and entire\nbusiness time and attention to the Company's Business during the term of Employee's employment with the Company. Employee agrees that, during\nthe term of Employee's employment, except as otherwise approved in writing by the Company, which approval the Company may in its absolute\ndiscretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction with any\nperson, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or entity other\nthan the Company; provided that the\n-2-\nforegoing is not intended to prevent an Employee from pursuing hobbies or participating in any other activity which is not to the detriment of\nCompany. Employee further acknowledges and agrees that Employee has access to the Company's Core Values and Standards of Business Conduct\n(the "Conduct Code") located at www.cognizant.com, and Employee has read and understands the Conduct Code and shall abide by all the terms\nof\nsaid Conduct Code, as may be amended from time to time, and said Conduct Code shall be incorporated into this Agreement. Employee will abide\nby all policies and decisions made by Company, as well as all applicable federal, state and local laws, regulations or ordinances. Employee will act in\nthe best interest of Company at all times.\n(c) Work Location. Employee's principal place of work shall be located in [insert city, state], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee's employment with the Company will be "at will," meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary.. As compensation for Employee's performance of Employee's duties hereunder, Company shall pay to Employee\na base salary as most recently determined by the Compensation Committee of the Board and last communicated to the Employee, as may be\nmodified by the Compensation Committee of the Board, payable in accordance with the normal payroll practices of Company, less required\ndeductions for state and federal withholding tax, social security and all other employment taxes and payroll deductions. In the event Employee's\nemployment under this Agreement is terminated by either party, for any reason, Employee will earn the Annual Base Salary prorated to the date of\ntermination.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation Committee\nof\nthe Board in accordance with the bonus plan(s) provided to Employee by Company, in accordance with the terms and conditions of such plan(s).\n(c) Stock Options and Other Equity. Awards. Except as set forth herein, this Agreement does not modify or change the existing\nagreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an "Equity Award" and\ncollectively, "Equity Awards") previously issued to Employee.\n6. Customary. Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to Employees of\nCompany subject to the terms and conditions of Company's benefit plan documents. Company reserves the right to change or eliminate the fringe\nbenefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance of\nEmployee's duties on behalf of Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with Company's policies.\n-3-\n8. Company. Access. Employee agrees and consents that, during the term of Employee's employment with the Company and thereafter, the\nCompany may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and internet access system\nprovided by the Company with or without notice to Employee and that such review, audit, interception, access, or disclosure may occur during or\nafter working hours. Employee further consents and agrees that the Company may, at any time, access and review the contents of all computers,\ncomputer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations which are either on the\nCompany's premises or which are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee's employment with the Company is involuntarily terminated by the\nCompany for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company's right to cure (as set forth in Section 10) has expired (an "Involuntary Termination"), and in either such case\nEmployee's employment termination becomes effective before any Change in Control (as defined in Section 9(e) below) has occurred following the\ndate of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does not\nrevoke the Release (as defined in Section 11) and the Release first becomes effective:\n(i) Employee shall receive continued payment of the Employee's Annual Base Salary, paid in regular installments in accordance\nwith the Company's normal payroll practices, over a period of twenty-two (22) months, commencing on or as soon as practicable after the date the\nRelease becomes effective and within thirty-five days following Employee's Termination Date.\n(ii) The Company shall, for a period of twelve (12) months following the date of Employee's Termination of Employment, pay\nthe Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company's group medical plan for Employee\nand, where applicable, Employee's spouse and eligible dependents; provided that Employee, and, where applicable, Employee's spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified\nunder this Section 9(a)(ii) shall cease if the Company's statutory obligation to provide such COBRA healthcare continuation coverage terminates for\nany reason before the expiration of the 12-month period.\n(iii) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nand would have vested had Employee remained employed by the Company during the twelve (12) month period following Employee's Termination\nDate shall automatically become fully vested and exercisable, as applicable, as of Employee's Termination Date. Such Equity Awards shall continue\nto be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n-4-\n(iv) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on achievement\nof\nperformance objective(s), to the extent that the applicable performance period has expired on or before Employee's Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates,\nthe portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12) month period\nfollowing Employee's Termination Date shall become fully vested and exercisable as of Employee's Termination Date. Such Equity Award shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(a)(v) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary Termination that becomes\neffective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in Control following the date of\nthis Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in lieu of, and not in addition to, the\npayments and benefits described in Section 9(a); provided that Employee executes and does not revoke the Release (as defined in Section 11) and the\nRelease first becomes effective:\n(i) Employee shall receive a cash payment equal to one times Employee's Annual Base Salary, such amount to be paid in regular\ninstallments in accordance with the Company's normal payroll practices over a period of twelve (12) months, commencing on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee's Termination Date.\n(ii) Employee shall receive a cash payment equal to the amount of the target annual bonus that the Employee would otherwise\nhave been eligible to receive for the performance year in which the Employee's Termination Date occurs, assuming for this purpose that the\nEmployee and Company achieved 100% of applicable performance targets and objectives. Payment shall be made in a lump sum payment on or as\nsoon as practicable after the date the Release becomes effective and within thirty-five days following Employee's Termination Date.\n(iii) The Company shall, for a period of twelve (12) months following the date of Employee's Termination of Employment, pay\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company's group medical plan for Employee and,\nwhere\napplicable, Employee's spouse and eligible dependents; provided that Employee, and, where applicable, Employee's spouse and dependents,\nare eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified under this\nSection 9(b)(iii) shall cease if the Company's statutory obligation to provide such COBRA healthcare continuation coverage terminates for\nany\nreason before the expiration of the 12-month period.\n-5-\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nshall automatically become fully vested and exercisable, as applicable, as of Employee's Termination Date. Such vested Equity Awards shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee's Termination Date, the performance\nobjective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates, such\nEquity Award shall become fully vested and exercisable as of Employee's Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee's Termination Date, the Company shall\npro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of Closing of the Change in\nControl, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Closing Date, and\ntreat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of the pro-\nrated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(c) Termination Due to Death, Disability, or For Cause. If Employee is terminated due to death, Disability, or for Cause, Employee shall\nreceive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's Termination Date and any benefits accrued and\nearned in accordance with the terms of any applicable benefit plans and programs of the Company; all other Company obligations to Employee will\nbe extinguished as of the Termination Date.\n(d) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to the other\nParties hereto given in accordance with Section 24 hereof.\n(e) Definition of Change in Control. For purposes of this Agreement, the term "Change in Control" shall have the meaning set forth in\nthe Company's 2009 Incentive Compensation Plan, as amended from time to time or any successor plan in effect as of Employee's Termination\nDate.\n-6-\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the expiration of the\ncure period and Employee's actual termination as described below, such resignation shall be deemed an Involuntary Termination for purposes of\nthis\nAgreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set forth in this\nAgreement, including Section 11. Employee must provide written notice to the Company of his intent to terminate his employment for Good Reason\nwithin thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have a period of thirty\n(30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in Employee's notice\nof\ntermination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period, Employee must terminate his\nemployment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the termination to be considered a Good\nReason termination under this Agreement.\n11. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9 and 10, as applicable (except for those\npayments that are owed pursuant to applicable law and/or are specifically not conditioned upon Employee's execution of a release), unless Employee\nexecutes, and does not revoke, the Company's then standard written general release (the "Release") of any and all claims against the Company and\nall related parties with respect to all matters arising out of Employee's employment by the Company (other than any entitlements under the terms of\nthis Agreement or under any other plans or programs of the Company in which Employee participated and under which Employee has accrued and\nearned a benefit) or the termination thereof. The Company will provide Employee with the form of release agreement within seven days after\nEmployee's separation from service. To be entitled to the severance or other benefits, Employee must execute and deliver to the Company the release\nagreement on or before the last day of the minimum required waiver consideration period provided under the Age Discrimination in Employment\nAct or other applicable law or such later date specified in the release agreement. If Employee timely delivers an executed release agreement to the\nCompany, and Employee does not revoke the release agreement during the minimum revocation period required under applicable law, if any, the\nseverance or other benefits shall be paid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to\nSection 30(b) of this Agreement. If, however, the period during which Employee has discretion to execute or revoke the release agreement straddles\ntwo calendar years, the cash severance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable\nin\nthe\nsecond\nof\nthe two calendar years, regardless of within which calendar year Employee actually delivers the executed release agreement to the Company, subject\nto the release agreement first becoming effective. Consistent with section 409A of the Code, Employee may not, directly or indirectly, designate\nthe\ncalendar year of payment. Nothing in this Section 11 shall be construed to alter the terms of this Agreement that condition Employee's entitlement\nto\nany severance or other benefits upon Employee's compliance with the restrictive covenants and any other terms and conditions specified in this\nAgreement.\n12. Other Payments. Any payments and benefits that become due under Sections 9 and 10 hereof shall be in addition to (but not in duplication\nof) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except that Employee\nshall not be entitled to any payments and benefits under the Company's then current severance pay policies.\n-7-\n13. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking\nother employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation earned by other\nemployment or otherwise; provided, however, that any obligation of the Company to provide COBRA healthcare continuation coverage under\nSections 4 and 5 hereof shall cease upon Employee becoming covered under a healthcare plan of another employer.\n14.\nNon-Exclusivity of Rights. Except as provided in Section 12, nothing in this Agreement shall prevent or limit Employee's\ncontinuing\nor\nfuture participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of its subsidiaries or\naffiliates and for which Employee may qualify.\n15. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company's obligation to make the payments\nprovided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without\nlimitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against Employee or others.\n16. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold from any\npayments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or governmental rule or\nregulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect\nto\nany\npayment\nreceived under this Agreement, including, without limitation, any excise tax imposed by section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the termination of\nEmployee's employment (whether payable pursuant to the terms of this Agreement ("Contract Payments") or any other plan, arrangement or\nagreement with the Company or any affiliate (collectively with the Contract Payments, the "Total Payments"), would constitute a "parachute\npayment" under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum amount\nnecessary to result in no portion of the Total Payments being non-deductible to the Company pursuant to Section 280G of the Code or subject to the\nexcise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 16, including whether a reduction in Total Payments is required, the\namount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting or law firm of\nrecognized standing reasonably selected by the Company (the "Firm"), which may be, but will not be required to be, the Company's independent\nauditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the Company within fifteen (15) days\nafter receipt of a notice from either the Company or Employee that Employee may receive payments which may be "parachute payments." If the\nFirm determines that a reduction is required by this Section 16, the Contract Payments consisting of cash severance shall be reduced to the extent\nnecessary so that no portion of the Total Payments shall be subject to the excise tax imposed\n-8-\nby section 4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If\nadditional Contract Payments must be reduced pursuant to this Section 16 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the Contract Payments allocable to time-vested Equity Awards,\nto\nthe extent necessary to satisfy the requirements of this Section 16. If the Firm determines that none of the Total Payments, after taking into account\nany reduction required by this Section 16, constitutes a "parachute payment" within the meaning of section 280G of the Code, it will, at the same\ntime as it makes such determination, furnish Employee and the Company an opinion that Employee has substantial authority not to report any excise\ntax under section 4999 of the Code on Employee's federal income tax return.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the possession\nof Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in connection with the\npreparation and issuance of the determinations and calculations contemplated by this Section 16. The fees and expenses of the Firm for its services in\nconnection with the determinations and calculations contemplated by this Section 16 shall be borne by the Company.\n17. Confidential Information. Employee agrees that Employee's services to the Company have been and will continue to be of a special,\nunique and extraordinary character, and that Employee's position places Employee in a position of confidence and trust with the Company's\ncustomers and employees. Employee also recognizes that Employee's position with the Company will give Employee substantial access to\nConfidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to suffer substantial\nand irreparable damage. Employee recognizes, therefore, that it is in the Company's legitimate business interest to restrict Employee's use of\nConfidential Information for any purposes other than the discharge of Employee's employment duties at the Company, and to limit any potential\nappropriation of Confidential Information by Employee for the benefit of the Company's competitors and to the detriment of the Company.\nAccordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee's employment, reveal to any person or entity any\nof the trade secrets or confidential information of the Company or of any third party which the Company is under an obligation to keep confidential\n(including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-how, techniques,\nsystems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) ("Confidential Information"), except\nas\nmay be required in the ordinary course of performing Employee's duties as an employee of the Company, and Employee shall keep secret all matters\nentrusted to Employee and shall not use or attempt to use any such information in any manner which may injure or cause loss or may be calculated\nto injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation, Confidential Information also includes\nany and all information, whether or not meeting the legal definition of a trade secret, concerning the Company's actual, planned or contemplated:\n(i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii) personnel information; (iii) customer, vendor and\nsupplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts, volumes, characteristics,\n-9-\nagreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business operations, internal structures and\nfinancial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company's services and products; (ix) proposed\nservices and products; (x) contracts with other parties; (xi) performance characteristics of the Company's products; and (xii) Inventions and Works as\ndefined in Section 18. Confidential Information also includes any and all information of Company's clients and customers which is deemed\nconfidential by such clients and customers (whether past, present or potential), including, but not limited to: marketing tools, inventions, processes,\ncontact lists, materials, software program code, logic diagrams, flow charts, procedural diagrams, computer programming techniques and know how,\nmaps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no fault of\nEmployee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any confidentiality\nobligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that Employee is requested or\nrequired (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to\ndisclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt notice of such request(s) so that the\nCompany may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or the Company grants a waiver hereunder, Employee may\nfurnish that portion (and only that portion) of the Confidential Information which Employee is legally compelled to disclose and will exercise its\nreasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.\n(c) Further, Employee agrees that during Employee's employment Employee shall not take, use or permit to be used any notes,\nmemoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any nature\nrelating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the benefit\nof\nthe Company. Employee further agrees that Employee shall not, after the termination of Employee's employment, use or permit to be used any such\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials, it being\nagreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately upon the termination\nof\nEmployee's employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all copies thereof, to the\nCompany, at its main office.\n(d) Employee agrees that upon the termination of Employee's employment with the Company, Employee will not take or retain without\nwritten authorization any documents, files or other property of the Company, and Employee will return promptly to the Company any such\ndocuments, files or property in Employee's possession or custody, including any copies thereof maintained in any medium or format. Employee\nrecognizes that all documents, files and property which Employee has received and will receive from the Company, including but not limited to\nscientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of documents relating to\nbenefits to which Employee might be entitled following the termination of Employee's employment with the Company), are for the\n-10-\nexclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee has no claim\nor\nright to the continued use, possession or custody of such documents, files or property following the termination of Employee's employment with\nthe Company.\n18. Intellectual Property..\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as defined\nbelow) which are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by\nthe Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and current written records\nof all Inventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program\ncode, procedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that "Inventions," is defined in this Agreement to include any and all new or useful ideas,\ndevelopments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual property,\nwhether patentable or not (including without limitation any technology, computer programs, software, software program code, logic diagrams,\nflowcharts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter, formula or\ntechnique), and all know-how related thereto, which Employee conceives, makes, reduces to practice, or develops, solely or jointly with others\n(i) which relate to the actual or contemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which\nEmployee\nhas\ndone\nor\nmay\ndo\non\nbehalf\nof\nthe\nCompany,\nor\nby\nany\ninformation\nthat\nEmployee\nmay\nreceive\nby\nvirtue\nof\nEmployee's\nemployment\nby\nthe Company, or (iii) which are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the\nCompany, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the Company.\n(c) The Company and Employee agree that "Works" is defined in this Agreement to include any and all materials for which copyright\nprotection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask works,\nartistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other audio-visual\nworks which Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) which relate to the actual or\ncontemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which Employee has done or may\ndo\non behalf of the Company, or by any information that Employee may receive by virtue of Employee's employment by the Company, or (iii) which\nare developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with the use\nof\npremises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n-11-\n(d)\nEmployee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of\nthe\nrights,\ntitles\nand\ninterests in and to any and all such Inventions and Works that Employee has or may acquire in such Inventions or Works which are conceived, made,\nreduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the Company and for a period of six\n(6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights, trademarks and other intellectual property\nrights in connection therewith, and agrees to take all such actions as may be requested by the Company during Employee's employment with the\nCompany and at any time thereafter, with respect to any such Inventions or Works to confirm or evidence such assignment, transfer, conveyance or\nownership, and to assist in the Company's maintenance, enforcement, license, assignment, transfer, or conveyance of rights in respect of the\nInventions or Works. Employee understands that if he is employed by the Company in California, his obligation to assign rights in inventions does\nnot apply to an invention that qualifies fully under the provisions of California Labor Code Section 2870.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee agrees to\nexecute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence and do any\nand all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment, transfer and\nconveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents, trademarks,\ncopyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or to obtain any\nextension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right. By way of further\nexample and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of initiating, maintaining or\ndefending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other proceedings as requested by the\nCompany. In the event that the Company may be unable, for any reason whatsoever, after reasonable effort, to secure Employee's signature on any\npatent, copyright, trademark or other intellectual property application or other papers, Employee hereby irrevocably designates and appoints the\nCompany and its duly authorized officers and agents, as Employee's agent and attorney-in-fact to act for and on behalf of Employee to execute,\nacknowledge, swear to, seal and deliver to the Company and to file any such application or applications or other papers, and to do all other lawfully\npermitted acts to further the provisions of Section 18 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the provisions\nof\nSections 18(d) and 18(e) of this Agreement The Company and Employee agree that Employee is not entitled to additional compensation beyond that\npaid to Employee for the period of time that he is employed by the Company, which compensation, along with the Company's understandings set\nforth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises and obligations set forth in this\nAgreement.\n-12-\n(g) Employee expressly acknowledges and states that all Works which are made by Employee (solely or jointly with others) are being\ncreated at the instance of the Company and are "works made for hire," as that term is defined in the Copyright Act of 1976, 17 USC 8 101. In the\nevent that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent jurisdiction not\nto be a work made for hire, this Agreement will operate as an irrevocable and unconditiona assignment by Employee to The Company of all\nEmployee's right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world, including the right to\nprepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not, which have\nbeen conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee's employment by the Company;\nprovided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or which is the subject\nof a contract preventing Employee's disclosure of the information to the Company.\n19. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee's employment with the Company, Company will provide Employee Confidential Information,\nwhich Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company's trade secrets and with other\nConfidential Information concerning the Company and that Employee's services shall be of special, unique and extraordinary value to the Company,\nand therefore, the Employee agrees that some restrictions on Employee's activities during and after Employee's employment are necessary to protect\nthe goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee's employment by the Company and, if Employee's employment with the Company terminates for any\nreason,\nfor\na\nperiod\nof\none\n(1)\nyear\nthereafter\n("Covenant\nPeriod"),\nexcept\nwith\nthe\nwritten\nconsent\nof\nthe\nBoard,\nEmployee\nshall\nnot\ndirectly\nor\nindirectly, own, control, finance or participate in the ownership, control or financing of any Direct Competitor or Secondary Competitor. For the\npurposes of this Agreement, a "Direct Competitor" is defined as those entities listed on Attachment B, [as shall be modified from time-to-time by\nCompany upon written notice to Employee]. A "Secondary Competitor" is defined as a person, business or enterprise which directly or indirectly\nengages in information technology consulting and technology services, management consulting services, or outsourcing services, including, but not\nlimited to, technology strategy consulting, systems development, enterprise software package implementation and maintenance, data warehousing\nand business intelligence, application testing, application maintenance, infrastructure management, and business process outsourcing, in the\nTerritory. For purposes of this Agreement, Territory is defined as any state in the United States and any country in the world in which the Company\nhas sold or performed any services at the time of the termination of the Employee's employment with the Company.\n(b) During the Covenant Period, the Employer further agrees that Employee shall not be employed by or provide services in any capacity\nto, a Direct Competitor in any part of the world. In addition, during the Covenant Period, Employee agrees that Employee shall not, in the Territory,\nprovide services the same as or similar to the services that Employee provided to the Company during a one (1) year period immediately preceding\nthe termination of the Employee's employment with the Company to any Secondary Competitor.\n-13-\n(c) In further consideration for the Company's promises herein, Employee agrees that for the period beginning with the termination of\nEmployee's employment with the Company for any reason, and for a period of one (1) year thereafter, Employee will not directly or indirectly solicit\nor recruit any part-time or full-time employee, representative or consultant of the Company or its subsidiaries or affiliates to work for a third party\nviolate any agreement with the Company or its subsidiaries or affiliates. The foregoing covenant shall not apply to any person after two (2) months to\nother than the Company or its subsidiaries or affiliates or engage in any activity that would cause any employee, representative or consultant\nhave elapsed after the date on which such person's employment by the Company has terminated.\n(d)\nThe foregoing restrictions shall not be construed to prohibit Employee's ownership of less than one percent (1%) of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the Securities\nExchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any group of\npersons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising Employee's rights as a stockholder, or seeks to do any of the\nforegoing.\n20. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and will not be\nconstrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary information arising out\nof any prior business relationship or contract that, in Employee's best judgment would be utilized in connection with Employee's employment with\nthe Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary information to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into this\nAgreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) the restrictions\nimposed on Employee by this Agreement are fair, reasonable and proper and required for the protection of the Company's business interests,\nparticularly its investments in Employee (e.g., Employee's job knowledge and skills), its Confidential Information, as well as the goodwill\ndeveloped, and its business relationships, with its clients, customers and prospective clients and customers; and (iii) the restrictions imposed on\nEmployee by this Agreement, particularly, the post-termination restrictions, shall not preclude Employee from earning a living or engaging in\nEmployee's profession or trade, or pursuing a career or a business.\n-14-\n21. Equitable Relief.\n(a) Employee acknowledges that the restrictions contained in Sections 17, 18, and 19 hereof are reasonable and necessary to protect the\nlegitimate interests of the Company and its affiliates, that the Company would not have entered into this Agreement in the absence of such\nrestrictions, and that any violation of any provision of those Sections will result in irreparable injury to the Company. Employee represents that\nEmployee's\nexperience and capabilities are such that the restrictions contained in Section 17, 18, and 19 hereof will not prevent Employee\nfrom\nobtaining employment or otherwise earning a living at the same general level of economic benefit as is currently the case. Employee further\nrepresents and acknowledges that (i) Employee has been advised by the Company to consult Employee's own legal counsel in respect of this\nAgreement, and (ii) that Employee has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with\nEmployee's counsel.\n(b) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving\nactual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 17, 18, and 19\nhereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The period of the\ninjunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of Sections 17, 18,\nand 19 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable law in any jurisdiction\nthen such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other limitations permitted by\napplicable law.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section 17, 18, and\n19\nhereof,\nincluding\nwithout\nlimitation,\nany\naction\ncommenced\nby\nthe\nCompany\nfor\npreliminary\nand\npermanent\ninjunctive\nrelief\nor\nother\nequitable\nrelief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction or will not accept\njurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court in any such suit,\naction or proceeding, and (iii) waives any objection which Employee may have to the laying of venue of any such suit, action or proceeding in any\nsuch court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in a manner\npermitted by the notice provisions of Section 24 hereof.\n22 Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee's employment with the Company;\nprovided, however, that after the termination of Employee's employment during the term of this Agreement, this Agreement shall remain in effect\nuntil all of the obligations of the Parties hereunder are satisfied or have expired.\n23. Successor Company.. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance satisfactory\nto Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance with the terms\nhereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the same extent that\nthe\nCompany would be required to perform if no such succession or successions had taken place. Failure of the Company to obtain such agreement\nprior to the effectiveness of any such succession shall be a breach of this Agreement As used in this Agreement, the Company shall mean the\nCompany as herein before defined and any such successor or successors to its business and/or assets, jointly and severally.\n-15-\n24. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be\nin writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express courier\nservice, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n[insert information]\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the\nlast\naddress of the Company or to any successor pursuant to this Section 24 shall be deemed sufficient for the purposes hereof. Any such notice shall be\ndeemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S. Postal Service\nin the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n25. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving effect to\nany conflict of laws provisions.\n26. Contents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Conduct Code, supersedes all prior agreements with respect to the subject matter hereof, sets forth the\nentire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended or terminated\nexcept upon written amendment executed by Employee and executed on the Company's behalf by a duly authorized officer, except for revisions or\nadditions to Attachment B, which may be unilaterally modified by Company upon written notice to Employee; provided, however, that this\nAgreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award agreements regarding stock\noptions, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance units or other stock-based awards\nissued to Employee prior to the effective date of this Agreement. The provisions of this Agreement may provide for payments to Employee under\ncertain compensation or bonus plans under circumstances where such plans would not provide for\n-16-\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in such\nplans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany's Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in the\nimposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company, or as\nchanging or modifying the "at will" nature of Employee's employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the\nrespective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee's Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee's devises, legates or other designees or, if there\nis no such designee, to Employee's estate.\n27. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted, and\nthe remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n28. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other right or\nremedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given hereunder or now or\nhereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or existing at law or\nin\nequity shall be construed as a waiver thereof.\n29. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of which is\nan original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other\ncounterparts.\n30. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of section 409A of the Code, and specifically, with the\n"short-term deferral exception" under Treas. Reg section 1.409A-1(b)(4 and the "separation pay exception" under Treas. Reg. section 1.409A-1(b)\n(9)(iii), and shall in all respects be administered and construed in accordance with section 409A of the Code. If any payment or benefit hereunder\ncannot be provided or made at the time specified herein without incurring sanctions on Employee under section 409A of the Code,\n-17-\nthen such payment or benefit shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of section\n409A of the Code, all payments to be made upon a Termination of Employment under this Agreement may only be made upon a "separation from\nservice" (within the meaning of such term under section 409A of the Code), each payment made under this Agreement shall be treated as a separate\npayment, the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments, and if\na\npayment is not made by the designated payment date under this Agreement, the payment shall be made by December 31 of the calendar year in\nwhich the designated date occurs. To the extent that any payment provided for hereunder would be subject to additional tax under section 409A\nof\nthe Code, or would cause the administration of this Agreement to fail to satisfy the requirements of section 409A of the Code, such provision shall\nbe deemed null and void to the extent permitted by applicable law, and any such amount shall be payable in accordance with 6(b) below. In no event\nshall the Employee, directly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and\nform of payment of any amounts or payments of "deferred compensation" (as defined under Treas. Reg. section 1.409A-1(b)(1) after giving effect\nto\nthe exemptions in Treas. Reg. sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement\nbetween the Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b)\nPayment Delay.. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any payments\nor benefits otherwise payable under this Agreement as a result of Employee's "separation from service" with the Company to prevent the imposition\nof any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement of the payment of any such\npayments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee) that are not otherwise\npaid within the "short-term deferral exception" under Treas. Reg. section 1.409A-1(b)(4) and the "separation pay exception" under Treas. Reg.\nsection 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Employee's "separation of service" with\nthe Company. If any payments are postponed due to such requirements, such postponed amounts will be paid to Employee in a lump sum on the first\npayroll date that occurs after the date that is six months following Employee's "separation of service" with the Company. If Employee dies during\nthe postponement period prior to the payment of the postponed amount, the amounts withheld on account of section 409A of the Code shall be paid\nto the personal representative of Employee's estate within sixty (60) days after the date of the Employee's death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements\nof section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Employee's\nlifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar\nyear may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made\non or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the right to reimbursement is not subject\nto\nliquidation or exchange for another benefit.\n-18-\n31. Recoupment Policy.. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any clawback or\nrecoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without notice (the\n"Recoupment Policy") to further the Company's interests in enhancing its corporate governance practices and/or to comply with applicable law, rules\nor regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on which shares of the\ncommon stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the Company may seek to recoup\nall or part of any severance payments, bonus or other incentive compensation paid to certain officers and former officers, including Equity Awards,\nin the event that the Company is required to restate its financial statements. In consideration of the continued benefits to be received from the\nCompany (or a subsidiary) and the right to participate in, and receive future awards under, the Company's cash and equity-based incentive programs,\nEmployee hereby acknowledges, understands and agrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards, paid or\nawarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent provided in the\nRecoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this Agreement or\nhereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy even if the\nRecoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms, and Employee\npromptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the Recoupment Policy for\nrepayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity Awards, subject to the\nRecoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and Employee is not\nwaiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment Policy, other than\n(i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards and (ii) waiving any\nclaim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n-19-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above written.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nAttest:\nBy:\nIts:\nWitness\n[Employee]\n-20-\nATTACHMENT A\n1.\nThe following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed, authored,\ncreated, drawn or written by me alone or jointly with others prior to my engagement by the Company.\nNone.\nSee below.\nX\nDue to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be included on the\nabove-described list.\nAdditional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n-21-\nATTACHMENT B - List of Direct Competitors\n-22-\nSCHEDULE TO EXHIBIT 10.4 - FORM OF AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE,\nNON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION HAS ENTERED INTO AN AMENDED AND RESTATED EXECUTIVE\nEMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT WITH EACH OF THE\nFOLLOWING PERSONS:\nFRANCISCO D'SOUZA\nGORDON COBURN\nKAREN MCLOUGHLIN\nRAMAKRISHNAN CHANDRASEKARAN\nRAJEEV MEHTA\nMALCOLM FRANK\nSTEVEN SCHWARTZ\nIDENTICAL TO THE FORM PROVIDED HEREIN.\n-23-	EX-10.4 2 d450416dex104.htm EX-10.4\nExhibit 10.4\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT\nAND NON-DISCLOSURE, NON-COMPETITION,\nAND INVENTION ASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment Agreement (this\n“Agreement”) is made as of the\nday of\n, 20 (the “Effective Date”) by and between Cognizant Technology Solutions Corporation, a\nDelaware corporation (the “Company” (where applicable, the definition of Company shall include the Company’s subsidiaries and affiliates and any\nsuccessors or assigns)), and\n(“Employee”).\nWHEREAS, Employee is currently employed by the Company as its\n; and\nWHEREAS, the Company desires to continue to retain the services of Employee; and\nWHEREAS, the Parties desire to amend and restate, in its entirety, the parties’ prior agreements pertaining to Employee’s employment,\nand set forth the new terms and conditions of Employee’s employment by the Company;\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and intending to\nbe legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:\n1. Definitions.\n(a) “Annual Base Salary” shall mean the rate of annual base salary paid or payable to Employee by the Company (including authorized\ndeferrals and salary reduction amounts) immediately prior to Employee’s Termination Date.\n(b) “Board” shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) “Cause” shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee’s supervisor, (iii) failure by the Employee to observe material\npolicies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor involving\nmoral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) “Disability” means Employee’s total and permanent disability as determined in accordance with the Company’s long-term disability\npolicy, whether or not Employee is covered by such policy.\n-1-\n(f) “Good Reason” means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee’s authority, duties or responsibilities;\n(ii) A material diminution in Employee’s overall compensation package, which is not otherwise caused by an overall policy by\nthe Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee’s consent, in the principal place of work of the Employee to a location that is more than 50\nmiles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon,\nand (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee’s employment under the provision so\nindicated.\n(h) “Termination Date” shall mean the last day of Employee’s employment with the Company.\n(i) “Termination of Employment” shall mean the termination of Employee’s active employment relationship with the Company.\n2. Employment. Company hereby continues to employ Employee, and Employee hereby continues to accept such employment, upon the terms\nand conditions set forth herein.\n3. Duties.\n(a) Position. Employee continues to be employed as [insert position title] and shall have the duties and responsibilities assigned by\n[insert title] both upon initial hire and as may be reasonably assigned from time to time. Employee shall perform faithfully and diligently all duties\nassigned to Employee. Company reserves the right to modify Employee’s position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [insert title].\n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee’s best efforts and entire\nbusiness time and attention to the Company’s Business during the term of Employee’s employment with the Company. Employee agrees that, during\nthe term of Employee’s employment, except as otherwise approved in writing by the Company, which approval the Company may in its absolute\ndiscretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction with any\nperson, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or entity other\nthan the Company; provided that the\n-2-\nforegoing is not intended to prevent an Employee from pursuing hobbies or participating in any other activity which is not to the detriment of\nCompany. Employee further acknowledges and agrees that Employee has access to the Company’s Core Values and Standards of Business Conduct\n(the “Conduct Code”) located at www.cognizant.com, and Employee has read and understands the Conduct Code and shall abide by all the terms of\nsaid Conduct Code, as may be amended from time to time, and said Conduct Code shall be incorporated into this Agreement. Employee will abide\nby all policies and decisions made by Company, as well as all applicable federal, state and local laws, regulations or ordinances. Employee will act in\nthe best interest of Company at all times.\n(c) Work Location. Employee’s principal place of work shall be located in [insert city, state], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee’s employment with the Company will be “at will,” meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, Company shall pay to Employee\na base salary as most recently determined by the Compensation Committee of the Board and last communicated to the Employee, as may be\nmodified by the Compensation Committee of the Board, payable in accordance with the normal payroll practices of Company, less required\ndeductions for state and federal withholding tax, social security and all other employment taxes and payroll deductions. In the event Employee’s\nemployment under this Agreement is terminated by either party, for any reason, Employee will earn the Annual Base Salary prorated to the date of\ntermination.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation Committee\nof the Board in accordance with the bonus plan(s) provided to Employee by Company, in accordance with the terms and conditions of such plan(s).\n(c) Stock Options and Other Equity Awards. Except as set forth herein, this Agreement does not modify or change the existing\nagreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an “Equity Award” and\ncollectively, “Equity Awards”) previously issued to Employee.\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to Employees of\nCompany subject to the terms and conditions of Company’s benefit plan documents. Company reserves the right to change or eliminate the fringe\nbenefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance of\nEmployee’s duties on behalf of Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with Company’s policies.\n-3-\n8. Company Access. Employee agrees and consents that, during the term of Employee’s employment with the Company and thereafter, the\nCompany may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and internet access system\nprovided by the Company with or without notice to Employee and that such review, audit, interception, access, or disclosure may occur during or\nafter working hours. Employee further consents and agrees that the Company may, at any time, access and review the contents of all computers,\ncomputer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations which are either on the\nCompany’s premises or which are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee’s employment with the Company is involuntarily terminated by the\nCompany for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case\nEmployee’s employment termination becomes effective before any Change in Control (as defined in Section 9(e) below) has occurred following the\ndate of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does not\nrevoke the Release (as defined in Section 11) and the Release first becomes effective:\n(i) Employee shall receive continued payment of the Employee’s Annual Base Salary, paid in regular installments in accordance\nwith the Company’s normal payroll practices, over a period of twenty-two (22) months, commencing on or as soon as practicable after the date the\nRelease becomes effective and within thirty-five days following Employee’s Termination Date.\n(ii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay\nthe Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee\nand, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified\nunder this Section 9(a)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for\nany reason before the expiration of the 12-month period.\n(iii) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nand would have vested had Employee remained employed by the Company during the twelve (12) month period following Employee’s Termination\nDate shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such Equity Awards shall continue\nto be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n-4-\n(iv) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on achievement of\nperformance objective(s), to the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates,\nthe portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12) month period\nfollowing Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such Equity Award shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(a)(v) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary Termination that becomes\neffective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in Control following the date of\nthis Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in lieu of, and not in addition to, the\npayments and benefits described in Section 9(a); provided that Employee executes and does not revoke the Release (as defined in Section 11) and the\nRelease first becomes effective:\n(i) Employee shall receive a cash payment equal to one times Employee’s Annual Base Salary, such amount to be paid in regular\ninstallments in accordance with the Company’s normal payroll practices over a period of twelve (12) months, commencing on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(ii) Employee shall receive a cash payment equal to the amount of the target annual bonus that the Employee would otherwise\nhave been eligible to receive for the performance year in which the Employee’s Termination Date occurs, assuming for this purpose that the\nEmployee and Company achieved 100% of applicable performance targets and objectives. Payment shall be made in a lump sum payment on or as\nsoon as practicable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(iii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee and,\nwhere applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and dependents,\nare eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified under this\nSection 9(b)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any\nreason before the expiration of the 12-month period.\n-5-\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nshall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity Awards shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the performance\nobjective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates, such\nEquity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date, the Company shall\npro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of Closing of the Change in\nControl, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Closing Date, and\ntreat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of the pro-\nrated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(c) Termination Due to Death, Disability, or For Cause. If Employee is terminated due to death, Disability, or for Cause, Employee shall\nreceive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination Date and any benefits accrued and\nearned in accordance with the terms of any applicable benefit plans and programs of the Company; all other Company obligations to Employee will\nbe extinguished as of the Termination Date.\n(d) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to the other\nParties hereto given in accordance with Section 24 hereof.\n(e) Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall have the meaning set forth in\nthe Company’s 2009 Incentive Compensation Plan, as amended from time to time or any successor plan in effect as of Employee’s Termination\nDate.\n-6-\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the expiration of the\ncure period and Employee’s actual termination as described below, such resignation shall be deemed an Involuntary Termination for purposes of this\nAgreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set forth in this\nAgreement, including Section 11. Employee must provide written notice to the Company of his intent to terminate his employment for Good Reason\nwithin thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have a period of thirty\n(30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in Employee’s notice of\ntermination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period, Employee must terminate his\nemployment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the termination to be considered a Good\nReason termination under this Agreement.\n11. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9 and 10, as applicable (except for those\npayments that are owed pursuant to applicable law and/or are specifically not conditioned upon Employee’s execution of a release), unless Employee\nexecutes, and does not revoke, the Company’s then standard written general release (the “Release”) of any and all claims against the Company and\nall related parties with respect to all matters arising out of Employee’s employment by the Company (other than any entitlements under the terms of\nthis Agreement or under any other plans or programs of the Company in which Employee participated and under which Employee has accrued and\nearned a benefit) or the termination thereof. The Company will provide Employee with the form of release agreement within seven days after\nEmployee’s separation from service. To be entitled to the severance or other benefits, Employee must execute and deliver to the Company the release\nagreement on or before the last day of the minimum required waiver consideration period provided under the Age Discrimination in Employment\nAct or other applicable law or such later date specified in the release agreement. If Employee timely delivers an executed release agreement to the\nCompany, and Employee does not revoke the release agreement during the minimum revocation period required under applicable law, if any, the\nseverance or other benefits shall be paid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to\nSection 30(b) of this Agreement. If, however, the period during which Employee has discretion to execute or revoke the release agreement straddles\ntwo calendar years, the cash severance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of\nthe two calendar years, regardless of within which calendar year Employee actually delivers the executed release agreement to the Company, subject\nto the release agreement first becoming effective. Consistent with section 409A of the Code, Employee may not, directly or indirectly, designate the\ncalendar year of payment. Nothing in this Section 11 shall be construed to alter the terms of this Agreement that condition Employee’s entitlement to\nany severance or other benefits upon Employee’s compliance with the restrictive covenants and any other terms and conditions specified in this\nAgreement.\n12. Other Payments. Any payments and benefits that become due under Sections 9 and 10 hereof shall be in addition to (but not in duplication\nof) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except that Employee\nshall not be entitled to any payments and benefits under the Company’s then current severance pay policies.\n-7-\n13. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking\nother employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation earned by other\nemployment or otherwise; provided, however, that any obligation of the Company to provide COBRA healthcare continuation coverage under\nSections 4 and 5 hereof shall cease upon Employee becoming covered under a healthcare plan of another employer.\n14. Non-Exclusivity of Rights. Except as provided in Section 12, nothing in this Agreement shall prevent or limit Employee’s continuing or\nfuture participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of its subsidiaries or\naffiliates and for which Employee may qualify.\n15. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company’s obligation to make the payments\nprovided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without\nlimitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against Employee or others.\n16. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold from any\npayments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or governmental rule or\nregulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment\nreceived under this Agreement, including, without limitation, any excise tax imposed by section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the termination of\nEmployee’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or any other plan, arrangement or\nagreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”), would constitute a “parachute\npayment” under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum amount\nnecessary to result in no portion of the Total Payments being non-deductible to the Company pursuant to Section 280G of the Code or subject to the\nexcise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 16, including whether a reduction in Total Payments is required, the\namount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting or law firm of\nrecognized standing reasonably selected by the Company (the “Firm”), which may be, but will not be required to be, the Company’s independent\nauditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the Company within fifteen (15) days\nafter receipt of a notice from either the Company or Employee that Employee may receive payments which may be “parachute payments.” If the\nFirm determines that a reduction is required by this Section 16, the Contract Payments consisting of cash severance shall be reduced to the extent\nnecessary so that no portion of the Total Payments shall be subject to the excise tax imposed\n-8-\nby section 4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If\nadditional Contract Payments must be reduced pursuant to this Section 16 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the Contract Payments allocable to time-vested Equity Awards, to\nthe extent necessary to satisfy the requirements of this Section 16. If the Firm determines that none of the Total Payments, after taking into account\nany reduction required by this Section 16, constitutes a “parachute payment” within the meaning of section 280G of the Code, it will, at the same\ntime as it makes such determination, furnish Employee and the Company an opinion that Employee has substantial authority not to report any excise\ntax under section 4999 of the Code on Employee’s federal income tax return.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the possession\nof Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in connection with the\npreparation and issuance of the determinations and calculations contemplated by this Section 16. The fees and expenses of the Firm for its services in\nconnection with the determinations and calculations contemplated by this Section 16 shall be borne by the Company.\n17. Confidential Information. Employee agrees that Employee’s services to the Company have been and will continue to be of a special,\nunique and extraordinary character, and that Employee’s position places Employee in a position of confidence and trust with the Company’s\ncustomers and employees. Employee also recognizes that Employee’s position with the Company will give Employee substantial access to\nConfidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to suffer substantial\nand irreparable damage. Employee recognizes, therefore, that it is in the Company’s legitimate business interest to restrict Employee’s use of\nConfidential Information for any purposes other than the discharge of Employee’s employment duties at the Company, and to limit any potential\nappropriation of Confidential Information by Employee for the benefit of the Company’s competitors and to the detriment of the Company.\nAccordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee’s employment, reveal to any person or entity any\nof the trade secrets or confidential information of the Company or of any third party which the Company is under an obligation to keep confidential\n(including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-how, techniques,\nsystems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) (“Confidential Information”), except as\nmay be required in the ordinary course of performing Employee’s duties as an employee of the Company, and Employee shall keep secret all matters\nentrusted to Employee and shall not use or attempt to use any such information in any manner which may injure or cause loss or may be calculated\nto injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation, Confidential Information also includes\nany and all information, whether or not meeting the legal definition of a trade secret, concerning the Company’s actual, planned or contemplated:\n(i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii) personnel information; (iii) customer, vendor and\nsupplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts, volumes, characteristics,\n-9-\nagreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business operations, internal structures and\nfinancial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company’s services and products; (ix) proposed\nservices and products; (x) contracts with other parties; (xi) performance characteristics of the Company’s products; and (xii) Inventions and Works as\ndefined in Section 18. Confidential Information also includes any and all information of Company’s clients and customers which is deemed\nconfidential by such clients and customers (whether past, present or potential), including, but not limited to: marketing tools, inventions, processes,\ncontact lists, materials, software program code, logic diagrams, flow charts, procedural diagrams, computer programming techniques and know how,\nmaps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no fault of\nEmployee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any confidentiality\nobligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that Employee is requested or\nrequired (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to\ndisclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt notice of such request(s) so that the\nCompany may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or the Company grants a waiver hereunder, Employee may\nfurnish that portion (and only that portion) of the Confidential Information which Employee is legally compelled to disclose and will exercise its\nreasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.\n(c) Further, Employee agrees that during Employee’s employment Employee shall not take, use or permit to be used any notes,\nmemoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any nature\nrelating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the benefit of\nthe Company. Employee further agrees that Employee shall not, after the termination of Employee’s employment, use or permit to be used any such\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials, it being\nagreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately upon the termination of\nEmployee’s employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all copies thereof, to the\nCompany, at its main office.\n(d) Employee agrees that upon the termination of Employee’s employment with the Company, Employee will not take or retain without\nwritten authorization any documents, files or other property of the Company, and Employee will return promptly to the Company any such\ndocuments, files or property in Employee’s possession or custody, including any copies thereof maintained in any medium or format. Employee\nrecognizes that all documents, files and property which Employee has received and will receive from the Company, including but not limited to\nscientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of documents relating to\nbenefits to which Employee might be entitled following the termination of Employee’s employment with the Company), are for the\n- 10-\nexclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee has no claim\nor right to the continued use, possession or custody of such documents, files or property following the termination of Employee’s employment with\nthe Company.\n18. Intellectual Property.\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as defined\nbelow) which are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by\nthe Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and current written records\nof all Inventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program\ncode, procedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that “Inventions,” is defined in this Agreement to include any and all new or useful ideas,\ndevelopments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual property,\nwhether patentable or not (including without limitation any technology, computer programs, software, software program code, logic diagrams,\nflowcharts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter, formula or\ntechnique), and all know-how related thereto, which Employee conceives, makes, reduces to practice, or develops, solely or jointly with others\n(i) which relate to the actual or contemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which\nEmployee has done or may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by\nthe Company, or (iii) which are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the\nCompany, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the Company.\n(c) The Company and Employee agree that “Works” is defined in this Agreement to include any and all materials for which copyright\nprotection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask works,\nartistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other audio-visual\nworks which Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) which relate to the actual or\ncontemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which Employee has done or may do\non behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by the Company, or (iii) which\nare developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with the use of\npremises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n-11 -\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the rights, titles and\ninterests in and to any and all such Inventions and Works that Employee has or may acquire in such Inventions or Works which are conceived, made,\nreduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the Company and for a period of six\n(6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights, trademarks and other intellectual property\nrights in connection therewith, and agrees to take all such actions as may be requested by the Company during Employee’s employment with the\nCompany and at any time thereafter, with respect to any such Inventions or Works to confirm or evidence such assignment, transfer, conveyance or\nownership, and to assist in the Company’s maintenance, enforcement, license, assignment, transfer, or conveyance of rights in respect of the\nInventions or Works. Employee understands that if he is employed by the Company in California, his obligation to assign rights in inventions does\nnot apply to an invention that qualifies fully under the provisions of California Labor Code Section 2870.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee agrees to\nexecute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence and do any\nand all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment, transfer and\nconveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents, trademarks,\ncopyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or to obtain any\nextension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right. By way of further\nexample and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of initiating, maintaining or\ndefending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other proceedings as requested by the\nCompany. In the event that the Company may be unable, for any reason whatsoever, after reasonable effort, to secure Employee’s signature on any\npatent, copyright, trademark or other intellectual property application or other papers, Employee hereby irrevocably designates and appoints the\nCompany and its duly authorized officers and agents, as Employee’s agent and attorney-in-fact to act for and on behalf of Employee to execute,\nacknowledge, swear to, seal and deliver to the Company and to file any such application or applications or other papers, and to do all other lawfully\npermitted acts to further the provisions of Section 18 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the provisions of\nSections 18(d) and 18(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional compensation beyond that\npaid to Employee for the period of time that he is employed by the Company, which compensation, along with the Company’s understandings set\nforth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises and obligations set forth in this\nAgreement.\n- 12-\n(g) Employee expressly acknowledges and states that all Works which are made by Employee (solely or jointly with others) are being\ncreated at the instance of the Company and are “works made for hire,” as that term is defined in the Copyright Act of 1976, 17 USC § 101. In the\nevent that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent jurisdiction not\nto be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to The Company of all\nEmployee’s right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world, including the right to\nprepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not, which have\nbeen conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee’s employment by the Company;\nprovided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or which is the subject\nof a contract preventing Employee’s disclosure of the information to the Company.\n19. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee’s employment with the Company, Company will provide Employee Confidential Information,\nwhich Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company’s trade secrets and with other\nConfidential Information concerning the Company and that Employee’s services shall be of special, unique and extraordinary value to the Company,\nand therefore, the Employee agrees that some restrictions on Employee’s activities during and after Employee’s employment are necessary to protect\nthe goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee’s employment by the Company and, if Employee’s employment with the Company terminates for any\nreason, for a period of one (1) year thereafter (“Covenant Period”), except with the written consent of the Board, Employee shall not directly or\nindirectly, own, control, finance or participate in the ownership, control or financing of any Direct Competitor or Secondary Competitor. For the\npurposes of this Agreement, a “Direct Competitor” is defined as those entities listed on Attachment B, [as shall be modified from time-to-time by\nCompany upon written notice to Employee]. A “Secondary Competitor” is defined as a person, business or enterprise which directly or indirectly\nengages in information technology consulting and technology services, management consulting services, or outsourcing services, including, but not\nlimited to, technology strategy consulting, systems development, enterprise software package implementation and maintenance, data warehousing\nand business intelligence, application testing, application maintenance, infrastructure management, and business process outsourcing, in the\nTerritory. For purposes of this Agreement, Territory is defined as any state in the United States and any country in the world in which the Company\nhas sold or performed any services at the time of the termination of the Employee’s employment with the Company.\n(b) During the Covenant Period, the Employer further agrees that Employee shall not be employed by or provide services in any capacity\nto, a Direct Competitor in any part of the world. In addition, during the Covenant Period, Employee agrees that Employee shall not, in the Territory,\nprovide services the same as or similar to the services that Employee provided to the Company during a one (1) year period immediately preceding\nthe termination of the Employee’s employment with the Company to any Secondary Competitor.\n- 13-\n(c) In further consideration for the Company’s promises herein, Employee agrees that for the period beginning with the termination of\nEmployee’s employment with the Company for any reason, and for a period of one (1) year thereafter, Employee will not directly or indirectly solicit\nor recruit any part-time or full-time employee, representative or consultant of the Company or its subsidiaries or affiliates to work for a third party\nother than the Company or its subsidiaries or affiliates or engage in any activity that would cause any employee, representative or consultant to\nviolate any agreement with the Company or its subsidiaries or affiliates. The foregoing covenant shall not apply to any person after two (2) months\nhave elapsed after the date on which such person’s employment by the Company has terminated.\n(d) The foregoing restrictions shall not be construed to prohibit Employee’s ownership of less than one percent (1%) of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the Securities\nExchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any group of\npersons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising Employee’s rights as a stockholder, or seeks to do any of the\nforegoing.\n20. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and will not be\nconstrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary information arising out\nof any prior business relationship or contract that, in Employee’s best judgment would be utilized in connection with Employee’s employment with\nthe Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary information to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into this\nAgreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) the restrictions\nimposed on Employee by this Agreement are fair, reasonable and proper and required for the protection of the Company’s business interests,\nparticularly its investments in Employee (e.g ., Employee’s job knowledge and skills), its Confidential Information, as well as the goodwill\ndeveloped, and its business relationships, with its clients, customers and prospective clients and customers; and (iii) the restrictions imposed on\nEmployee by this Agreement, particularly, the post-termination restrictions, shall not preclude Employee from earning a living or engaging in\nEmployee’s profession or trade, or pursuing a career or a business.\n- 14-\n21. Equitable Relief.\n(a) Employee acknowledges that the restrictions contained in Sections 17, 18, and 19 hereof are reasonable and necessary to protect the\nlegitimate interests of the Company and its affiliates, that the Company would not have entered into this Agreement in the absence of such\nrestrictions, and that any violation of any provision of those Sections will result in irreparable injury to the Company. Employee represents that\nEmployee’s experience and capabilities are such that the restrictions contained in Section 17, 18, and 19 hereof will not prevent Employee from\nobtaining employment or otherwise earning a living at the same general level of economic benefit as is currently the case. Employee further\nrepresents and acknowledges that (i) Employee has been advised by the Company to consult Employee’s own legal counsel in respect of this\nAgreement, and (ii) that Employee has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with\nEmployee’s counsel.\n(b) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving\nactual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 17, 18, and 19\nhereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The period of the\ninjunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of Sections 17, 18,\nand 19 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable law in any jurisdiction,\nthen such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other limitations permitted by\napplicable law.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section 17, 18, and\n19 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or other equitable\nrelief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction or will not accept\njurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court in any such suit,\naction or proceeding, and (iii) waives any objection which Employee may have to the laying of venue of any such suit, action or proceeding in any\nsuch court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in a manner\npermitted by the notice provisions of Section 24 hereof.\n22. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee’s employment with the Company;\nprovided, however, that after the termination of Employee’s employment during the term of this Agreement, this Agreement shall remain in effect\nuntil all of the obligations of the Parties hereunder are satisfied or have expired.\n23. Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance satisfactory\nto Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance with the terms\nhereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the same extent that\nthe Company would be required to perform if no such succession or successions had taken place. Failure of the Company to obtain such agreement\nprior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the Company shall mean the\nCompany as herein before defined and any such successor or successors to its business and/or assets, jointly and severally.\n- 15-\n24. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be\nin writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express courier\nservice, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n[insert information]\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the last\naddress of the Company or to any successor pursuant to this Section 24 shall be deemed sufficient for the purposes hereof. Any such notice shall be\ndeemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S. Postal Service\nin the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n25. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving effect to\nany conflict of laws provisions.\n26. Contents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Conduct Code, supersedes all prior agreements with respect to the subject matter hereof, sets forth the\nentire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended or terminated\nexcept upon written amendment executed by Employee and executed on the Company’s behalf by a duly authorized officer, except for revisions or\nadditions to Attachment B, which may be unilaterally modified by Company upon written notice to Employee; provided, however, that this\nAgreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award agreements regarding stock\noptions, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance units or other stock-based awards\nissued to Employee prior to the effective date of this Agreement. The provisions of this Agreement may provide for payments to Employee under\ncertain compensation or bonus plans under circumstances where such plans would not provide for\n- 16-\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in such\nplans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany’s Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in the\nimposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company, or as\nchanging or modifying the “at will” nature of Employee’s employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the\nrespective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee’s Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devises, legates or other designees or, if there\nis no such designee, to Employee’s estate.\n27. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted, and\nthe remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n28. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other right or\nremedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given hereunder or now or\nhereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or existing at law or in\nequity shall be construed as a waiver thereof.\n29. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of which is\nan original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other\ncounterparts.\n30. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of section 409A of the Code, and specifically, with the\n“short-term deferral exception” under Treas. Reg. section 1.409A-1(b)(4) and the “separation pay exception” under Treas. Reg. section 1.409A -1(b)\n(9)(iii), and shall in all respects be administered and construed in accordance with section 409A of the Code. If any payment or benefit hereunder\ncannot be provided or made at the time specified herein without incurring sanctions on Employee under section 409A of the Code,\n- 17-\nthen such payment or benefit shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of section\n409A of the Code, all payments to be made upon a Termination of Employment under this Agreement may only be made upon a “separation from\nservice” (within the meaning of such term under section 409A of the Code), each payment made under this Agreement shall be treated as a separate\npayment, the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments, and if a\npayment is not made by the designated payment date under this Agreement, the payment shall be made by December 31 of the calendar year in\nwhich the designated date occurs. To the extent that any payment provided for hereunder would be subject to additional tax under section 409A of\nthe Code, or would cause the administration of this Agreement to fail to satisfy the requirements of section 409A of the Code, such provision shall\nbe deemed null and void to the extent permitted by applicable law, and any such amount shall be payable in accordance with 6(b) below. In no event\nshall the Employee, directly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and\nform of payment of any amounts or payments of “deferred compensation” (as defined under Treas. Reg. section 1.409A-1(b)(1), after giving effect\nto the exemptions in Treas. Reg. sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement\nbetween the Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b) Payment Delay. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any payments\nor benefits otherwise payable under this Agreement as a result of Employee’s “separation from service” with the Company to prevent the imposition\nof any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement of the payment of any such\npayments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee) that are not otherwise\npaid within the “short-term deferral exception” under Treas. Reg. section 1.409A-1(b)(4) and the “separation pay exception” under Treas. Reg.\nsection 1.409A -1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Employee’s “separation of service” with\nthe Company. If any payments are postponed due to such requirements, such postponed amounts will be paid to Employee in a lump sum on the first\npayroll date that occurs after the date that is six months following Employee’s “separation of service” with the Company. If Employee dies during\nthe postponement period prior to the payment of the postponed amount, the amounts withheld on account of section 409A of the Code shall be paid\nto the personal representative of Employee’s estate within sixty (60) days after the date of the Employee’s death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements\nof section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Employee’s\nlifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar\nyear may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made\non or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the right to reimbursement is not subject to\nliquidation or exchange for another benefit.\n- 18-\n31. Recoupment Policy. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any clawback or\nrecoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without notice (the\n“Recoupment Policy”) to further the Company’s interests in enhancing its corporate governance practices and/or to comply with applicable law, rules\nor regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on which shares of the\ncommon stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the Company may seek to recoup\nall or part of any severance payments, bonus or other incentive compensation paid to certain officers and former officers, including Equity Awards,\nin the event that the Company is required to restate its financial statements. In consideration of the continued benefits to be received from the\nCompany (or a subsidiary) and the right to participate in, and receive future awards under, the Company’s cash and equity-based incentive programs,\nEmployee hereby acknowledges, understands and agrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards, paid or\nawarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent provided in the\nRecoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this Agreement or\nhereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy even if the\nRecoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms, and Employee\npromptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the Recoupment Policy for\nrepayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity Awards, subject to the\nRecoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and Employee is not\nwaiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment Policy, other than\n(i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards and (ii) waiving any\nclaim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n- 19-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above written.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nAttest:\nBy:\nIts:\nWitness\n[Employee]\n- 20-\nATTACHMENT A\n1. The following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed, authored,\ncreated, drawn or written by me alone or jointly with others prior to my engagement by the Company.\n̈\nNone.\nSee below.\nx\nDue to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be included on the\nabove-described list.\n̈\nAdditional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n- 21-\nATTACHMENT B – List of Direct Competitors\n- 22-\nSCHEDULE TO EXHIBIT 10.4 – FORM OF AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE,\nNON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION HAS ENTERED INTO AN AMENDED AND RESTATED EXECUTIVE\nEMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT WITH EACH OF THE\nFOLLOWING PERSONS:\nFRANCISCO D’SOUZA\nGORDON COBURN\nKAREN MCLOUGHLIN\nRAMAKRISHNAN CHANDRASEKARAN\nRAJEEV MEHTA\nMALCOLM FRANK\nSTEVEN SCHWARTZ\nIDENTICAL TO THE FORM PROVIDED HEREIN.\n- 23-
3ab5afcaf885ec2c6b1c7c87a5d98986.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 5 dex99e3.htm CONFIDENTIALITY AGREEMENT - GILEAD SCIENCES, INC.\nExhibit (e)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT, made effective as of March 5, 2008 (the “Effective Date”), by and between CV Therapeutics, Inc., with principal place\nof business at 3172 Porter Drive, Palo Alto, CA 94304 (“CVT”), and Gilead Sciences, Inc., with principal place of business at 333 Lakeside Drive\nFoster City, CA 94404 (“Gilead”), to assure the protection and preservation of the confidential and proprietary nature of information to be disclosed\nor made available by or on behalf of the disclosing party hereunder (the “Disclosing Party”) to the receiving party hereunder (the “Receiving Party”),\nis entered into in connection with the following facts and circumstances:\nWHEREAS, the parties desire to assure the confidential status of such information disclosed by CVT regarding its business and operations\nincluding but not limited to CVT’s proprietary compound ranolazine, second generation compounds thereof and CVT’s proprietary compound CVT-\n6883 (the “CVT Subject Matter”), and by Gilead regarding its business and operations including but not limited to Gilead’s research and\ndevelopment, sales and marketing capabilities and strategies (the “Gilead Subject Matter”), in the course of discussions between the parties\nregarding a potential corporate partnering relationship;\nNOW THEREFORE, in consideration of the following undertakings, the parties hereby agree as follows:\n1. Subject to the other terms of this Agreement, all information disclosed by or on behalf of the Disclosing Party to the Receiving Party\nhereunder shall to the extent it relates to the CVT Subject Matter (if disclosed by CVT, its representatives or affiliates) or to the Gilead Subject\nMatter (if disclosed by Gilead), be deemed to be “Proprietary Information” of the Disclosing Party, whether disclosed by or on behalf of the\nDisclosing Party hereunder in oral, written, graphic or electronic form. Subject to the other terms of this Agreement, such Proprietary Information of\nthe Disclosing Party shall include the Disclosing Party’s technical, research, financial, business, commercial, personnel or operational information,\nand/or ideas, trade secrets, know-how, procedures, strategies or plans; provided, however, that, Gilead shall not disclose the chemical structures of\nany of its proprietary compounds to CVT.\n2. “Proprietary Information” of the Disclosing Party shall not be deemed to include information which the Receiving Party can demonstrate by\ncompetent evidence: (a) was in the public domain when disclosed by the Disclosing Party to the Receiving Party or subsequently becomes public\nthrough no act or failure to act on the part of the Receiving Party in breach of this Agreement; (b) was already known by the Receiving Party when\ndisclosed by the Disclosing Party; (c) was or is furnished to the Receiving Party by a third party not bound by any confidentiality obligation or other\nrestriction on disclosure with respect to such information; or (d) is independently developed by the Receiving Party without any reference to or other\nuse of any Proprietary Information of the Disclosing Party.\n3. The Receiving Party shall maintain in trust and confidence, and shall not disclose to any third party except with the Disclosing Party’s\nexpress prior written consent, any and all Proprietary Information of the Disclosing Party, and shall use any and all Proprietary Information of the\nDisclosing Party only for purposes of the parties’ discussions hereunder. The Receiving Party’s obligations of confidentiality and non-use under this\nAgreement shall remain in effect for five (5) years from the Effective Date. The Receiving Party further agrees not to use the Proprietary Information\nof the Disclosing Party for competitive purposes or to obtain any commercial advantage with respect to the Disclosing Party. No rights or licenses to\nProprietary Information of either party or to any trademark, invention, copyright, patent, patent application, intellectual property or other property of\nthe either party are implied or granted under this Agreement. Nothing herein shall be construed to obligate either party to enter into any further\nagreements with the other party. Each party understands and acknowledges that any Proprietary Information is being or will be provided by the\nDisclosing Party without any representation or warranty, express or implied, as to its accuracy or completeness.\n4. The Receiving Party agrees to protect the Proprietary Information of the Disclosing Party with at least the same degree of care used to\nprotect its own proprietary information from unauthorized use or disclosure. Without\n1\nthe Disclosing Party’s express prior written consent, the Receiving Party may disclose Proprietary Information of the Disclosing Party to the\nReceiving Party’s directors, officers, employees, legal counsel, financial advisors and other retained experts and agents (each of which shall be\ndeemed to be within the meaning of the “Receiving Party”) on a need to know basis, provided that (a) the Receiving Party first advises each such\ndirector, officer, employee, legal counsel, financial advisor or other retained expert or agent to whom such Proprietary Information is to be disclosed\nof the confidential nature thereof, and (b) in each case such director, officer, employee, legal counsel, financial advisor or other retained expert or\nagent is bound by obligations of confidentiality and non-use consistent with and at least as stringent as those set forth in this Agreement.\n5. All Proprietary Information (including all copies thereof) of the Disclosing Party shall remain the property of the Disclosing Party. After the\nReceiving Party’s need for Proprietary Information of the Disclosing Party has expired, upon written request by the Disclosing Party, the Receiving\nParty shall return to the Disclosing Party all copies of Proprietary Information of the Disclosing Party or shall destroy all copies of such Proprietary\nInformation, including all memoranda, notes, and other writings in any medium prepared by Receiving Party or its experts or agents that include any\nsuch Proprietary Information and shall certify in writing to the Disclosing Party such return and/or destruction. Notwithstanding the foregoing, legal\ncounsel for the Receiving Party may retain one copy of such Proprietary Information of the Disclosing Party for archival purposes.\n6. Notwithstanding any other provision of this Agreement, disclosure of Proprietary Information of the Disclosing Party shall not be precluded\nif such disclosure is required under applicable law, regulation or valid order of a court or other governmental body to which the Receiving Party is\nsubject, provided that the Receiving Party shall first have given written notice to the Disclosing Party of the need for such disclosure reasonably in\nadvance so that the Disclosing Party may (if it elects) seek a protective order or other confidential treatment of its Proprietary Information.\nNotwithstanding the foregoing, any disclosure of Proprietary Information in accordance with this Section 6 (a) shall be limited to that which is\nreasonably necessary to comply with the terms of such law, regulation, court order or governmental body, and (b) shall in no way alter the\nconfidential nature of such Proprietary Information for all other purposes.\n7. Except for any disclosure made in accordance with Section 4 or 6 above, neither party will (and each party will direct its experts and agents\nnot to) disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between CVT and\nGilead, or any of the terms, conditions or other facts with respect to any such possible transaction, including the timing or status thereof, unless\n(a) both parties provide prior written consent to such disclosure or (b) in the opinion of counsel for the party wishing to make such disclosure, such\ndisclosure is required by applicable United States securities laws. If a party proposes to make any disclosure based on the opinion of its counsel, such\nparty will advise the other party in writing in advance and will consult with the other party prior to making such disclosure. The term “person” as\nused in this Agreement shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual.\n8. Gilead acknowledges that it is (a) aware that the United States securities laws prohibit any person who has material nonpublic information\nabout a company from purchasing or selling securities of such company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (b) familiar with the Securities\nExchange Act of 1934 (the “1934 Act”) and the rules and regulations promulgated thereunder and agrees that it will neither use, nor cause any third\nparty to use, any Proprietary Information of CVT in contravention of the 1934 Act or any such rules and regulations, including Rules 10b-5 and 14e-\n3.\n9. During the 36-month period commencing on the date of this Agreement (the “Standstill Period”), without the prior written consent of CVT,\nGilead shall not, nor shall it permit its affiliates (as defined in Rule 405 under the Securities Act of 1933, “Affiliates”) to: (a) acquire, offer to\nacquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights or options to acquire any\nvoting securities of CVT; (b) propose to enter into any merger or business combination involving CVT or to purchase a\n2\nmaterial portion of the assets of CVT; (c) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such\nterms are used in the proxy rules of the 1934 Act), or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of CVT; (d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any\nvoting securities of CVT; (e) otherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or\npolicies of CVT; or (f) take any action which would or would reasonably be expected to require CVT to make a public announcement regarding the\npossibility of a business combination, merger or other change of control transaction with Gilead. The Standstill Period shall immediately terminate in\nthe event that: (a) CVT publicly announces that it has entered into an agreement with any person or group which provides for (i) the acquisition by\nsuch person or group of more than 50% of the common stock of CVT or all or substantially all the assets of CVT or (ii) any merger, consolidation or\nsimilar business combination involving CVT and such person or group including any transaction or series of related transactions which would result\nin the stockholders of CVT immediately prior to the transaction owning less than 50% of the voting power in CVT or an entity acquiring CVT\nimmediately following the transaction or series of related transactions (each, a “Third Party Acquisition”), or (b) the board of directors of CVT\nrecommends that stockholders of CVT tender their shares or vote in favor of a Third Party Acquisition; or (c) any person or group acquires\nbeneficial ownership of more than 50% of the outstanding common stock of CVT or publicly announces an intention to engage in a negotiated Third\nParty Acquisition. The expiration of the Standstill Period will not terminate or otherwise affect any other provision in this Agreement.\n10. This Agreement shall be governed by the laws of the State of California, without regard to its conflicts of laws principles. The Receiving\nParty agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Receiving Party or its agents or\nAffiliates, and that in addition to all other remedies available to the Disclosing Party, the Disclosing Party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. This Agreement contains the final, complete and exclusive\nagreement of the parties relative to the subject matter hereof, and supersedes any and all prior agreements or understandings (oral or written)\nbetween the parties with respect to the subject matter hereof. This Agreement may not be changed, modified, amended or supplemented except by\nmutual written agreement of both parties.\nIn Witness Whereof, a duly authorized representative of each party has executed this Agreement as of the Effective Date set forth above.\nAGREED TO:\nAGREED TO:\nCV THERAPEUTICS, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Lucy J. Billings\nBy:\n/s/ Kevin Young\nName:\nLucy J. Billings\nName:\nKevin Young\nTitle:\nVP Legal, Licensing & Contracts\nTitle:\nEVP, Commercial\n3	EX-99.(E)(3) 5 dex99e3.htm CONFIDENTIALITY AGREEMENT - GILEAD SCIENCES, INC.\nExhibit (e)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT, made effective as of March 5, 2008 (the “Effective Date”), by and between CV Therapeutics, Inc., with principal place\nof business at 3172 Porter Drive, Palo Alto, CA 94304 (“CVT”), and Gilead Sciences, Inc., with principal place of business at 333 Lakeside Drive\nFoster City, CA 94404 (“Gilead”), to assure the protection and preservation of the confidential and proprietary nature of information to be disclosed\nor made available by or on behalf of the disclosing party hereunder (the “Disclosing Party”) to the receiving party hereunder (the “Receiving Party”),\nis entered into in connection with the following facts and circumstances:\nWHEREAS, the parties desire to assure the confidential status of such information disclosed by CVT regarding its business and operations\nincluding but not limited to CVT’s proprietary compound ranolazine, second generation compounds thereof and CVT’s proprietary compound CVT-\n6883 (the “CVT Subject Matter”), and by Gilead regarding its business and operations including but not limited to Gilead’s research and\ndevelopment, sales and marketing capabilities and strategies (the “Gilead Subject Matter”), in the course of discussions between the parties\nregarding a potential corporate partnering relationship;\nNOW THEREFORE, in consideration of the following undertakings, the parties hereby agree as follows:\n1. Subject to the other terms of this Agreement, all information disclosed by or on behalf of the Disclosing Party to the Receiving Party\nhereunder shall to the extent it relates to the CVT Subject Matter (if disclosed by CVT, its representatives or affiliates) or to the Gilead Subject\nMatter (if disclosed by Gilead), be deemed to be “Proprietary Information” of the Disclosing Party, whether disclosed by or on behalf of the\nDisclosing Party hereunder in oral, written, graphic or electronic form. Subject to the other terms of this Agreement, such Proprietary Information of\nthe Disclosing Party shall include the Disclosing Party’s technical, research, financial, business, commercial, personnel or operational information,\nand/or ideas, trade secrets, know-how, procedures, strategies or plans; provided, however, that, Gilead shall not disclose the chemical structures of\nany of its proprietary compounds to CVT.\n2. “Proprietary Information” of the Disclosing Party shall not be deemed to include information which the Receiving Party can demonstrate by\ncompetent evidence: (a) was in the public domain when disclosed by the Disclosing Party to the Receiving Party or subsequently becomes public\nthrough no act or failure to act on the part of the Receiving Party in breach of this Agreement; (b) was already known by the Receiving Party when\ndisclosed by the Disclosing Party; (c) was or is furnished to the Receiving Party by a third party not bound by any confidentiality obligation or other\nrestriction on disclosure with respect to such information; or (d) is independently developed by the Receiving Party without any reference to or other\nuse of any Proprietary Information of the Disclosing Party.\n3. The Receiving Party shall maintain in trust and confidence, and shall not disclose to any third party except with the Disclosing Party’s\nexpress prior written consent, any and all Proprietary Information of the Disclosing Party, and shall use any and all Proprietary Information of the\nDisclosing Party only for purposes of the parties’ discussions hereunder. The Receiving Party’s obligations of confidentiality and non-use under this\nAgreement shall remain in effect for five (5) years from the Effective Date. The Receiving Party further agrees not to use the Proprietary Information\nof the Disclosing Party for competitive purposes or to obtain any commercial advantage with respect to the Disclosing Party. No rights or licenses to\nProprietary Information of either party or to any trademark, invention, copyright, patent, patent application, intellectual property or other property of\nthe either party are implied or granted under this Agreement. Nothing herein shall be construed to obligate either party to enter into any further\nagreements with the other party. Each party understands and acknowledges that any Proprietary Information is being or will be provided by the\nDisclosing Party without any representation or warranty, express or implied, as to its accuracy or completeness.\n4. The Receiving Party agrees to protect the Proprietary Information of the Disclosing Party with at least the same degree of care used to\nprotect its own proprietary information from unauthorized use or disclosure. Without\n1\nthe Disclosing Party’s express prior written consent, the Receiving Party may disclose Proprietary Information of the Disclosing Party to the\nReceiving Party’s directors, officers, employees, legal counsel, financial advisors and other retained experts and agents (each of which shall be\ndeemed to be within the meaning of the “Receiving Party”) on a need to know basis, provided that (a) the Receiving Party first advises each such\ndirector, officer, employee, legal counsel, financial advisor or other retained expert or agent to whom such Proprietary Information is to be disclosed\nof the confidential nature thereof, and (b) in each case such director, officer, employee, legal counsel, financial advisor or other retained expert or\nagent is bound by obligations of confidentiality and non-use consistent with and at least as stringent as those set forth in this Agreement.\n5. All Proprietary Information (including all copies thereof) of the Disclosing Party shall remain the property of the Disclosing Party. After the\nReceiving Party’s need for Proprietary Information of the Disclosing Party has expired, upon written request by the Disclosing Party, the Receiving\nParty shall return to the Disclosing Party all copies of Proprietary Information of the Disclosing Party or shall destroy all copies of such Proprietary\nInformation, including all memoranda, notes, and other writings in any medium prepared by Receiving Party or its experts or agents that include any\nsuch Proprietary Information and shall certify in writing to the Disclosing Party such return and/or destruction. Notwithstanding the foregoing, legal\ncounsel for the Receiving Party may retain one copy of such Proprietary Information of the Disclosing Party for archival purposes.\n6. Notwithstanding any other provision of this Agreement, disclosure of Proprietary Information of the Disclosing Party shall not be precluded\nif such disclosure is required under applicable law, regulation or valid order of a court or other governmental body to which the Receiving Party is\nsubject, provided that the Receiving Party shall first have given written notice to the Disclosing Party of the need for such disclosure reasonably in\nadvance so that the Disclosing Party may (if it elects) seek a protective order or other confidential treatment of its Proprietary Information.\nNotwithstanding the foregoing, any disclosure of Proprietary Information in accordance with this Section 6 (a) shall be limited to that which is\nreasonably necessary to comply with the terms of such law, regulation, court order or governmental body, and (b) shall in no way alter the\nconfidential nature of such Proprietary Information for all other purposes.\n7. Except for any disclosure made in accordance with Section 4 or 6 above, neither party will (and each party will direct its experts and agents\nnot to) disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between CVT and\nGilead, or any of the terms, conditions or other facts with respect to any such possible transaction, including the timing or status thereof, unless\n(a) both parties provide prior written consent to such disclosure or (b) in the opinion of counsel for the party wishing to make such disclosure, such\ndisclosure is required by applicable United States securities laws. If a party proposes to make any disclosure based on the opinion of its counsel, such\nparty will advise the other party in writing in advance and will consult with the other party prior to making such disclosure. The term “person” as\nused in this Agreement shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual.\n8. Gilead acknowledges that it is (a) aware that the United States securities laws prohibit any person who has material nonpublic information\nabout a company from purchasing or selling securities of such company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (b) familiar with the Securities\nExchange Act of 1934 (the “1934 Act”) and the rules and regulations promulgated thereunder and agrees that it will neither use, nor cause any third\nparty to use, any Proprietary Information of CVT in contravention of the 1934 Act or any such rules and regulations, including Rules 10b-5 and 14e-\n3.\n9. During the 36-month period commencing on the date of this Agreement (the “Standstill Period”), without the prior written consent of CVT,\nGilead shall not, nor shall it permit its affiliates (as defined in Rule 405 under the Securities Act of 1933, “Affiliates”) to: (a) acquire, offer to\nacquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights or options to acquire any\nvoting securities of CVT; (b) propose to enter into any merger or business combination involving CVT or to purchase a\n2\nmaterial portion of the assets of CVT; (c) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such\nterms are used in the proxy rules of the 1934 Act), or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of CVT; (d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any\nvoting securities of CVT; (e) otherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or\npolicies of CVT; or (f) take any action which would or would reasonably be expected to require CVT to make a public announcement regarding the\npossibility of a business combination, merger or other change of control transaction with Gilead. The Standstill Period shall immediately terminate in\nthe event that: (a) CVT publicly announces that it has entered into an agreement with any person or group which provides for (i) the acquisition by\nsuch person or group of more than 50% of the common stock of CVT or all or substantially all the assets of CVT or (ii) any merger, consolidation or\nsimilar business combination involving CVT and such person or group including any transaction or series of related transactions which would result\nin the stockholders of CVT immediately prior to the transaction owning less than 50% of the voting power in CVT or an entity acquiring CVT\nimmediately following the transaction or series of related transactions (each, a “Third Party Acquisition), or (b) the board of directors of CVT\nrecommends that stockholders of CVT tender their shares or vote in favor of a Third Party Acquisition; or (c) any person or group acquires\nbeneficial ownership of more than 50% of the outstanding common stock of CVT or publicly announces an intention to engage in a negotiated Third\nParty Acquisition. The expiration of the Standstill Period will not terminate or otherwise affect any other provision in this Agreement.\n10. This Agreement shall be governed by the laws of the State of California, without regard to its conflicts of laws principles. The Receiving\nParty agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Receiving Party or its agents or\nAffiliates, and that in addition to all other remedies available to the Disclosing Party, the Disclosing Party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. This Agreement contains the final, complete and exclusive\nagreement of the parties relative to the subject matter hereof, and supersedes any and all prior agreements or understandings (oral or written)\nbetween the parties with respect to the subject matter hereof. This Agreement may not be changed, modified, amended or supplemented except by\nmutual written agreement of both parties.\nIn Witness Whereof, a duly authorized representative of each party has executed this Agreement as of the Effective Date set forth above.\nAGREED TO: AGREED TO:\nCV THERAPEUTICS, INC. GILEAD SCIENCES, INC.\nBy: /s/  Lucy J. Billings By: /s/ Kevin Young\nName: Lucy J. Billings Name: Kevin Young\nTitle: VP Legal, Licensing & Contracts Title: EVP, Commercial	EX-99.(E)(3) 5 dex99e3.htm CONFIDENTIALITY AGREEMENT GILEAD SCIENCES, INC.\nExhibit (e)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT, made effective as of March 5, 2008 (the "Effective Date"), by and between CV Therapeutics, Inc., with principal place\nof\nbusiness at 3172 Porter Drive, Palo Alto, CA 94304 ("CVT"), and Gilead Sciences, Inc., with principal place of business at 333 Lakeside Drive\nFoster City, CA 94404 ("Gilead"), to assure the protection and preservation of the confidential and proprietary nature of information to be disclosed\nor made available by or on behalf of the disclosing party hereunder (the "Disclosing Party") to the receiving party hereunder (the "Receiving Party"),\nis entered into in connection with the following facts and circumstances:\nWHEREAS, the parties desire to assure the confidentia status of such information disclosed by CVT regarding its business and operations\nincluding but not limited to CVT's proprietary compound ranolazine, second generation compounds thereof and CVT's proprietary compound CVT-\n6883 (the "CVT Subject Matter"), and by Gilead regarding its business and operations including but not limited to Gilead's research and\ndevelopment, sales and marketing capabilities and strategies (the "Gilead Subject Matter"), in the course of discussions between the parties\nregarding a potential corporate partnering relationship;\nNOW THEREFORE, in consideration of the following undertakings, the parties hereby agree as follows:\n1. Subject to the other terms of this Agreement, all information disclosed by or on behalf of the Disclosing Party to the Receiving Party\nhereunder shall to the extent it relates to the CVT Subject Matter (if disclosed by CVT, its representatives or affiliates) or to the Gilead Subject\nMatter (if disclosed by Gilead) be deemed to be "Proprietary Information" of the Disclosing Party, whether disclosed by or on behalf of the\nDisclosing Party hereunder in oral, written, graphic or electronic form. Subject to the other terms of this Agreement, such Proprietary Information of\nthe Disclosing Party shall include the Disclosing Party's technical, research, financial, business, commercial, personnel or operational information,\nand/or ideas, trade secrets, know-how, procedures, strategies or plans; provided, however, that, Gilead shall not disclose the chemical structures of\nany of its proprietary compounds to CVT.\n2.\n"Proprietary\nInformation"\nof\nthe\nDisclosing\nParty\nshall\nnot\nbe\ndeemed\nto\ninclude\ninformation\nwhich\nthe\nReceiving\nParty\ncan\ndemonstrate\nby\ncompetent evidence: (a) was in the public domain when disclosed by the Disclosing Party to the Receiving Party or subsequently becomes public\nthrough no act or failure to act on the part of the Receiving Party in breach of this Agreement; (b) was already known by the Receiving Party when\ndisclosed by the Disclosing Party; (c) was or is furnished to the Receiving Party by a third party not bound by any confidentiality obligation or other\nrestriction on disclosure with respect to such information; or (d) is independently developed by the Receiving Party without any reference to or other\nuse of any Proprietary Information of the Disclosing Party.\n3. The Receiving Party shall maintain in trust and confidence, and shall not disclose to any third party except with the Disclosing Party's\nexpress prior written consent, any and all Proprietary Information of the Disclosing Party, and shall use any and all Proprietary Information of the\nDisclosing Party only for purposes of the parties' discussions hereunder. The Receiving Party's obligations of confidentiality and non-use under this\nAgreement shall remain in effect for five (5) years from the Effective Date. The Receiving Party further agrees not to use the Proprietary Information\nof the Disclosing Party for competitive purposes or to obtain any commercial advantage with respect to the Disclosing Party. No rights or licenses to\nProprietary Information of either party or to any trademark, invention, copyright, patent, patent application, intellectual property or other property\nof\nthe either party are implied or granted under this Agreement. Nothing herein shall be construed to obligate either party to enter into any further\nagreements with the other party. Each party understands and acknowledges that any Proprietary Information is being or will be provided by the\nDisclosing Party without any representation or warranty, express or implied, as to its accuracy or completeness.\n4. The Receiving Party agrees to protect the Proprietary Information of the Disclosing Party with at least the same degree of care used to\nprotect its own proprietary information from unauthorized use or disclosure. Without\n1\nthe Disclosing Party's express prior written consent, the Receiving Party may disclose Proprietary Information of the Disclosing Party to the\nReceiving Party's directors, officers, employees, legal counsel, financial advisors and other retained experts and agents (each of which shall be\ndeemed to be within the meaning of the "Receiving Party") on a need to know basis, provided that (a) the Receiving Party first advises each such\ndirector, officer, employee, legal counsel, financial advisor or other retained expert or agent to whom such Proprietary Information is to be disclosed\nof the confidential nature thereof, and (b) in each case such director, officer, employee, legal counsel, financial advisor or other retained expert or\nagent is bound by obligations of confidentiality and non-use consistent with and at least as stringent as those set forth in this Agreement.\n5. All Proprietary Information (including all copies thereof) of the Disclosing Party shall remain the property of the Disclosing Party. After\nthe\nReceiving Party's need for Proprietary Information of the Disclosing Party has expired, upon written request by the Disclosing Party, the Receiving\nParty shall return to the Disclosing Party all copies of Proprietary Information of the Disclosing Party or shall destroy all copies of such Proprietary\nInformation, including all memoranda, notes, and other writings in any medium prepared by Receiving Party or its experts or agents that include any\nsuch Proprietary Information and shall certify in writing to the Disclosing Party such return and/or destruction. Notwithstanding the foregoing, legal\ncounsel for the Receiving Party may retain one copy of such Proprietary Information of the Disclosing Party for archival purposes.\n6. Notwithstanding any other provision of this Agreement, disclosure of Proprietary Information of the Disclosing Party shall not be precluded\nif such disclosure is required under applicable law, regulation or valid order of a court or other governmental body to which the Receiving Party is\nsubject, provided that the Receiving Party shall first have given written notice to the Disclosing Party of the need for such disclosure reasonably in\nadvance so that the Disclosing Party may (if it elects) seek a protective order or other confidential treatment of its Proprietary Information.\nNotwithstanding the foregoing, any disclosure of Proprietary Information in accordance with this Section 6 (a) shall be limited to that which is\nreasonably necessary to comply with the terms of such law, regulation, court order or governmental body, and (b) shall in no way alter the\nconfidential nature of such Proprietary Information for all other purposes.\n7. Except for any disclosure made in accordance with Section 4 or 6 above, neither party will (and each party will direct its experts and agents\nnot to) disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between CVT and\nGilead, or any of the terms, conditions or other facts with respect to any such possible transaction, including the timing or status thereof, unless\n(a) both parties provide prior written consent to such disclosure or (b) in the opinion of counsel for the party wishing to make such disclosure, such\ndisclosure is required by applicable United States securities laws. If a party proposes to make any disclosure based on the opinion of its counsel, such\nparty will advise the other party in writing in advance and will consult with the other party prior to making such disclosure. The term "person" as\nused in this Agreement shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual.\n8. Gilead acknowledges that it is (a) aware that the United States securities laws prohibit any person who has material nonpublic information\nabout a company from purchasing or selling securities of such company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (b) familiar with the Securities\nExchange Act of 1934 (the "1934 Act") and the rules and regulations promulgated thereunder and agrees that it will neither use, nor cause any third\nparty to use, any Proprietary Information of CVT in contravention of the 1934 Act or any such rules and regulations, including Rules 10b-5 and 14e-\n3.\n9. During the 36-month period commencing on the date of this Agreement (the "Standstill Period"), without the prior written consent of CVT,\nGilead shall not, nor shall it permit its affiliates (as defined in Rule 405 under the Securities Act of 1933, "Affiliates") to: (a) acquire, offer to\nacquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights or options to acquire any\nvoting securities of CVT; (b) propose to enter into any merger or business combination involving CVT or to purchase a\n2\nmaterial portion of the assets of CVT; (c) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such\nterms are used in the proxy rules of the 1934 Act), or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of CVT; (d) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to\nany\nvoting securities of CVT; (e) otherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or\npolicies of CVT; or (f) take any action which would or would reasonably be expected to require CVT to make a public announcement regarding the\npossibility of a business combination, merger or other change of control transaction with Gilead. The Standstill Period shall immediately terminate\nin\nthe event that: (a) CVT publicly announces that it has entered into an agreement with any person or group which provides for (i) the acquisition\nby\nsuch person or group of more than 50% of the common stock of CVT or all or substantially all the assets of CVT or (ii) any merger, consolidation or\nsimilar business combination involving CVT and such person or group including any transaction or series of related transactions which would\nresult\nin the stockholders of CVT immediately prior to the transaction owning less than 50% of the voting power in CVT or an entity acquiring CVT\nimmediately following the transaction or series of related transactions (each, a "Third Party Acquisition"), or (b) the board of directors of CVT\nrecommends that stockholders of CVT tender their shares or vote in favor of a Third Party Acquisition; or (c) any person or group acquires\nbeneficial ownership of more than 50% of the outstanding common stock of CVT or publicly announces an intention to engage in a negotiated Third\nParty Acquisition. The expiration of the Standstill Period will not terminate or otherwise affect any other provision in this Agreement.\n10. This Agreement shall be governed by the laws of the State of California, without regard to its conflicts of laws principles. The Receiving\nParty agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Receiving Party or its agents or\nAffiliates, and that in addition to all other remedies available to the Disclosing Party, the Disclosing Party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. This Agreement contains the final, complete and exclusive\nagreement of the parties relative to the subject matter hereof, and supersedes any and all prior agreements or understandings (oral or written)\nbetween the parties with respect to the subject matter hereof. This Agreement may not be changed, modified, amended or supplemented except\nby\nmutual written agreement of both parties.\nIn\nWitness Whereof, a duly authorized representative of each party has executed this Agreement as of the Effective Date set forth above.\nAGREED TO:\nAGREED TO:\nCV THERAPEUTICS, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Lucy J. Billings\nBy:\n/s/ Kevin Young\nName:\nLucy J. Billings\nName:\nKevin Young\nTitle:\nVP Legal, Licensing & Contracts\nTitle:\nEVP, Commercial\n3	EX-99.(E)(3) 5 dex99e3.htm CONFIDENTIALITY AGREEMENT - GILEAD SCIENCES, INC.\nExhibit (e)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT, made effective as of March 5, 2008 (the “Effective Date”), by and between CV Therapeutics, Inc., with principal place\nof business at 3172 Porter Drive, Palo Alto, CA 94304 (“CVT”), and Gilead Sciences, Inc., with principal place of business at 333 Lakeside Drive\nFoster City, CA 94404 (“Gilead”), to assure the protection and preservation of the confidential and proprietary nature of information to be disclosed\nor made available by or on behalf of the disclosing party hereunder (the “Disclosing Party”) to the receiving party hereunder (the “Receiving Party”),\nis entered into in connection with the following facts and circumstances:\nWHEREAS, the parties desire to assure the confidential status of such information disclosed by CVT regarding its business and operations\nincluding but not limited to CVT’s proprietary compound ranolazine, second generation compounds thereof and CVT’s proprietary compound CVT-\n6883 (the “CVT Subject Matter”), and by Gilead regarding its business and operations including but not limited to Gilead’s research and\ndevelopment, sales and marketing capabilities and strategies (the “Gilead Subject Matter”), in the course of discussions between the parties\nregarding a potential corporate partnering relationship;\nNOW THEREFORE, in consideration of the following undertakings, the parties hereby agree as follows:\n1. Subject to the other terms of this Agreement, all information disclosed by or on behalf of the Disclosing Party to the Receiving Party\nhereunder shall to the extent it relates to the CVT Subject Matter (if disclosed by CVT, its representatives or affiliates) or to the Gilead Subject\nMatter (if disclosed by Gilead), be deemed to be “Proprietary Information” of the Disclosing Party, whether disclosed by or on behalf of the\nDisclosing Party hereunder in oral, written, graphic or electronic form. Subject to the other terms of this Agreement, such Proprietary Information of\nthe Disclosing Party shall include the Disclosing Party’s technical, research, financial, business, commercial, personnel or operational information,\nand/or ideas, trade secrets, know-how, procedures, strategies or plans; provided, however, that, Gilead shall not disclose the chemical structures of\nany of its proprietary compounds to CVT.\n2. “Proprietary Information” of the Disclosing Party shall not be deemed to include information which the Receiving Party can demonstrate by\ncompetent evidence: (a) was in the public domain when disclosed by the Disclosing Party to the Receiving Party or subsequently becomes public\nthrough no act or failure to act on the part of the Receiving Party in breach of this Agreement; (b) was already known by the Receiving Party when\ndisclosed by the Disclosing Party; (c) was or is furnished to the Receiving Party by a third party not bound by any confidentiality obligation or other\nrestriction on disclosure with respect to such information; or (d) is independently developed by the Receiving Party without any reference to or other\nuse of any Proprietary Information of the Disclosing Party.\n3. The Receiving Party shall maintain in trust and confidence, and shall not disclose to any third party except with the Disclosing Party’s\nexpress prior written consent, any and all Proprietary Information of the Disclosing Party, and shall use any and all Proprietary Information of the\nDisclosing Party only for purposes of the parties’ discussions hereunder. The Receiving Party’s obligations of confidentiality and non-use under this\nAgreement shall remain in effect for five (5) years from the Effective Date. The Receiving Party further agrees not to use the Proprietary Information\nof the Disclosing Party for competitive purposes or to obtain any commercial advantage with respect to the Disclosing Party. No rights or licenses to\nProprietary Information of either party or to any trademark, invention, copyright, patent, patent application, intellectual property or other property of\nthe either party are implied or granted under this Agreement. Nothing herein shall be construed to obligate either party to enter into any further\nagreements with the other party. Each party understands and acknowledges that any Proprietary Information is being or will be provided by the\nDisclosing Party without any representation or warranty, express or implied, as to its accuracy or completeness.\n4. The Receiving Party agrees to protect the Proprietary Information of the Disclosing Party with at least the same degree of care used to\nprotect its own proprietary information from unauthorized use or disclosure. Without\n1\nthe Disclosing Party’s express prior written consent, the Receiving Party may disclose Proprietary Information of the Disclosing Party to the\nReceiving Party’s directors, officers, employees, legal counsel, financial advisors and other retained experts and agents (each of which shall be\ndeemed to be within the meaning of the “Receiving Party”) on a need to know basis, provided that (a) the Receiving Party first advises each such\ndirector, officer, employee, legal counsel, financial advisor or other retained expert or agent to whom such Proprietary Information is to be disclosed\nof the confidential nature thereof, and (b) in each case such director, officer, employee, legal counsel, financial advisor or other retained expert or\nagent is bound by obligations of confidentiality and non-use consistent with and at least as stringent as those set forth in this Agreement.\n5. All Proprietary Information (including all copies thereof) of the Disclosing Party shall remain the property of the Disclosing Party. After the\nReceiving Party’s need for Proprietary Information of the Disclosing Party has expired, upon written request by the Disclosing Party, the Receiving\nParty shall return to the Disclosing Party all copies of Proprietary Information of the Disclosing Party or shall destroy all copies of such Proprietary\nInformation, including all memoranda, notes, and other writings in any medium prepared by Receiving Party or its experts or agents that include any\nsuch Proprietary Information and shall certify in writing to the Disclosing Party such return and/or destruction. Notwithstanding the foregoing, legal\ncounsel for the Receiving Party may retain one copy of such Proprietary Information of the Disclosing Party for archival purposes.\n6. Notwithstanding any other provision of this Agreement, disclosure of Proprietary Information of the Disclosing Party shall not be precluded\nif such disclosure is required under applicable law, regulation or valid order of a court or other governmental body to which the Receiving Party is\nsubject, provided that the Receiving Party shall first have given written notice to the Disclosing Party of the need for such disclosure reasonably in\nadvance so that the Disclosing Party may (if it elects) seek a protective order or other confidential treatment of its Proprietary Information.\nNotwithstanding the foregoing, any disclosure of Proprietary Information in accordance with this Section 6 (a) shall be limited to that which is\nreasonably necessary to comply with the terms of such law, regulation, court order or governmental body, and (b) shall in no way alter the\nconfidential nature of such Proprietary Information for all other purposes.\n7. Except for any disclosure made in accordance with Section 4 or 6 above, neither party will (and each party will direct its experts and agents\nnot to) disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between CVT and\nGilead, or any of the terms, conditions or other facts with respect to any such possible transaction, including the timing or status thereof, unless\n(a) both parties provide prior written consent to such disclosure or (b) in the opinion of counsel for the party wishing to make such disclosure, such\ndisclosure is required by applicable United States securities laws. If a party proposes to make any disclosure based on the opinion of its counsel, such\nparty will advise the other party in writing in advance and will consult with the other party prior to making such disclosure. The term “person” as\nused in this Agreement shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual.\n8. Gilead acknowledges that it is (a) aware that the United States securities laws prohibit any person who has material nonpublic information\nabout a company from purchasing or selling securities of such company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (b) familiar with the Securities\nExchange Act of 1934 (the “1934 Act”) and the rules and regulations promulgated thereunder and agrees that it will neither use, nor cause any third\nparty to use, any Proprietary Information of CVT in contravention of the 1934 Act or any such rules and regulations, including Rules 10b-5 and 14e-\n3.\n9. During the 36-month period commencing on the date of this Agreement (the “Standstill Period”), without the prior written consent of CVT,\nGilead shall not, nor shall it permit its affiliates (as defined in Rule 405 under the Securities Act of 1933, “Affiliates”) to: (a) acquire, offer to\nacquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights or options to acquire any\nvoting securities of CVT; (b) propose to enter into any merger or business combination involving CVT or to purchase a\n2\nmaterial portion of the assets of CVT; (c) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such\nterms are used in the proxy rules of the 1934 Act), or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of CVT; (d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any\nvoting securities of CVT; (e) otherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or\npolicies of CVT; or (f) take any action which would or would reasonably be expected to require CVT to make a public announcement regarding the\npossibility of a business combination, merger or other change of control transaction with Gilead. The Standstill Period shall immediately terminate in\nthe event that: (a) CVT publicly announces that it has entered into an agreement with any person or group which provides for (i) the acquisition by\nsuch person or group of more than 50% of the common stock of CVT or all or substantially all the assets of CVT or (ii) any merger, consolidation or\nsimilar business combination involving CVT and such person or group including any transaction or series of related transactions which would result\nin the stockholders of CVT immediately prior to the transaction owning less than 50% of the voting power in CVT or an entity acquiring CVT\nimmediately following the transaction or series of related transactions (each, a “Third Party Acquisition”), or (b) the board of directors of CVT\nrecommends that stockholders of CVT tender their shares or vote in favor of a Third Party Acquisition; or (c) any person or group acquires\nbeneficial ownership of more than 50% of the outstanding common stock of CVT or publicly announces an intention to engage in a negotiated Third\nParty Acquisition. The expiration of the Standstill Period will not terminate or otherwise affect any other provision in this Agreement.\n10. This Agreement shall be governed by the laws of the State of California, without regard to its conflicts of laws principles. The Receiving\nParty agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Receiving Party or its agents or\nAffiliates, and that in addition to all other remedies available to the Disclosing Party, the Disclosing Party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. This Agreement contains the final, complete and exclusive\nagreement of the parties relative to the subject matter hereof, and supersedes any and all prior agreements or understandings (oral or written)\nbetween the parties with respect to the subject matter hereof. This Agreement may not be changed, modified, amended or supplemented except by\nmutual written agreement of both parties.\nIn Witness Whereof, a duly authorized representative of each party has executed this Agreement as of the Effective Date set forth above.\nAGREED TO:\nAGREED TO:\nCV THERAPEUTICS, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Lucy J. Billings\nBy:\n/s/ Kevin Young\nName:\nLucy J. Billings\nName:\nKevin Young\nTitle:\nVP Legal, Licensing & Contracts\nTitle:\nEVP, Commercial\n3
3acc6f6bdad6eaaf7ab21faea5ea95fa.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 3 f52580exv99wxeyx3y.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and\nbetween IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and\nCATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman\nRoad, Mountain View, California 94041.\nRECITALS:\nWHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the\npurpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit;\nWHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited\npurpose(s) set forth on Attachment A hereto;\nNOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential\nInformation (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable\nconsideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows:\nAGREEMENT:\n1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct.\n2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of\nsuch information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such\ninformation and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or\nafter the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including,\nwithout limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to\nReceiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party,\nis marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary\nnature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential\nInformation. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of\nthrough or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications\nwith Disclosing Party’s\n1\nRepresentatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other\nmaterials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information.\nWithout limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information\nand materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether\npatentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts,\nresearch, development, operations, production techniques, purchasing information, employee names and information, employee expertise,\nprocesses, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables,\ndevelopment plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing\npolicies.\nNotwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made\navailable (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which\nconcerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in\nperson or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information\nfurnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall\nbe deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof.\n3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than\nas result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s\nConfidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later\npublished or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to\nReceiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to\nReceiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is\napproved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law,\nrule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party\nshall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to\nthe confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies\nto any information or materials.\n4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall\nhold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any\n2\nperson or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential\nInformation and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the\nconfidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and\nwill be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care\nas is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such\ndegree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly\npermitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential\nInformation of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party\nunder this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized\ndisclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become\naware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither\nparty shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of\nthis Agreement or the identity of the parties hereto.\n5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile\nany Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops\nand/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently\ndeveloped or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts,\ntechniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and\nagrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a\nthird party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without\nobligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and\nwithout any use of or reference to the Confidential Information of Disclosing Party.\n6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in\nthat case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing\nParty, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such\ndestruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together\nwith any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request,\nall other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving\nParty shall not be required to destroy or return any\n3\nelectronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any\nsuch electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or\ndestruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of\nconfidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential\nInformation. Any oral Confidential Information will continue to be subject to the terms of this Agreement.\n7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors,\nemployees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any\nexpress or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no\nsuch person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further\nagree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be\nentitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to\nthe Transaction, subject to such limitations and restrictions as may be contained therein.\n8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or\nobtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides\nDisclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature\nof Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving\nParty of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to\nDisclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a\nbreach by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party.\n9. The parties are aware, and will advise their respective Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior\nwritten consent of the other party : (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities of the other\n4\nparty or any subsidiary thereof, or of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or\ndivision thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of\n“proxies” (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity\nwith respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal\nfor, or offer of (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (iv) form, join or in\nany way participate in a “group” (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of\nthe foregoing; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to\nthe immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a\npotential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult\nwill not be obligated to advise Ixia of any such inquiries or proposals.\n11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment\nor employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for\nemployment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in\nconnection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who\nrespond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not\npreviously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements.\n12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a\npossible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating\nwith any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person);\n(b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time\nwithout prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives\nwith regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless\nand until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor\nany of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other\nwritten or oral expression with respect to the Transaction or otherwise.\n13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written\nconsent of the other party, which\n5\nconsent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital\nstock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement\nto such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto\nand their respective successors and permitted assigns.\n14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential\nInformation whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to\nDisclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in\nits sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason.\n15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of\neither party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with\nany third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship\nbetween Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-\nvis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or\nimplied, on behalf of the other party.\n16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes\nany and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between\nany provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this\nAgreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of\nCalifornia. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an\nappropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in\nconnection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’\nfees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of\nthis Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be\namended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts,\neach of which shall be enforceable as an original, but which together shall constitute one and the same instrument.\n17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one\nyear after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon\nwritten notice to the other party. Notwithstanding termination of this\n6\nAgreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto\nshall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such\ntermination.\n18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof.\nEach person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the\nperson, firm or corporation listed above his or her name.\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below.\nIXIA\nCatapult Communications Corporation\nBy: /s/ Ronald W. Buckley\nBy: /s/ Richard A. Karp\nName: Ronald W. Buckley\nName: Richard A. Karp\nTitle: SVP & General Counsel\nTitle: Chairman & CEO\n7\nATTACHMENT A\nSubject(s) of Confidential Information:\nInformation and data regarding the business of each party, including but not limited to products, product development plans, customers,\nfinancial information and employees.\nPurpose(s) of Disclosure of Confidential Information:\nTo enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving\nParty’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.	EX-99.(E)(3) 3 f52580exv99wxeyx3y.htm EX-(E)(3)\nExhibit (¢)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and\nbetween IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and\nCATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman\nRoad, Mountain View, California 94041.\nRECITALS:\nWHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the\npurpose of exploring a potential business relationship (the “Transaction™) to the parties’ mutual benefit;\nWHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited\npurpose(s) set forth on Attachment A hereto;\nNOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential\nInformation (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable\nconsideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows:\nAGREEMENT:\n1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct.\n2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of\nsuch information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such\ninformation and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or\nafter the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including,\nwithout limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives™) to\nReceiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party,\nis marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary\nnature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential\nInformation. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of\nthrough or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications\nwith Disclosing Party’s\nRepresentatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other\nmaterials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information.\nWithout limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information\nand materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether\npatentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts,\nresearch, development, operations, production techniques, purchasing information, employee names and information, employee expertise,\nprocesses, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables,\ndevelopment plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing\npolicies.\nNotwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made\navailable (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which\nconcerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in\nperson or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information\nfurnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall\nbe deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof.\n3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than\nas result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s\nConfidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later\npublished or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to\nReceiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to\nReceiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is\napproved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law,\nrule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party\nshall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to\nthe confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies\nto any information or materials.\n4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall\nhold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any\n2\nperson or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential\nInformation and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the\nconfidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and\nwill be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care\nas is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such\ndegree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly\npermitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential\nInformation of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party\nunder this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized\ndisclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become\naware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither\nparty shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of\nthis Agreement or the identity of the parties hereto.\n5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile\nany Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops\nand/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently\ndeveloped or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts,\ntechniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and\nagrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a\nthird party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without\nobligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and\nwithout any use of or reference to the Confidential Information of Disclosing Party.\n6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in\nthat case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing\nParty, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such\ndestruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together\nwith any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request,\nall other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving\nParty shall not be required to destroy or return any\nelectronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any\nsuch electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or\ndestruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of\nconfidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential\nInformation. Any oral Confidential Information will continue to be subject to the terms of this Agreement.\n7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors,\nemployees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any\nexpress or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no\nsuch person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further\nagree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be\nentitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to\nthe Transaction, subject to such limitations and restrictions as may be contained therein.\n8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or\nobtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides\nDisclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature\nof Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving\nParty of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to\nDisclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a\nbreach by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party.\n9. The parties are aware, and will advise their respective Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior\nwritten consent of the other party : (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities of the other\n4\nparty or any subsidiary thereof, or of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or\ndivision thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of\n“proxies” (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity\nwith respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal\nfor, or offer of (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (iv) form, join or in\nany way participate in a “group” (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of\nthe foregoing; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to\nthe immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a\npotential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult\nwill not be obligated to advise Ixia of any such inquiries or proposals.\n11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment\nor employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for\nemployment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in\nconnection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who\nrespond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not\npreviously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements.\n12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a\npossible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating\nwith any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person);\n(b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time\nwithout prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives\nwith regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless\nand until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor\nany of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other\nwritten or oral expression with respect to the Transaction or otherwise.\n13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written\nconsent of the other party, which\nconsent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital\nstock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement\nto such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto\nand their respective successors and permitted assigns.\n14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential\nInformation whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to\nDisclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in\nits sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason.\n15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of\neither party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with\nany third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship\nbetween Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-a-\nvis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or\nimplied, on behalf of the other party.\n16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes\nany and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between\nany provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this\nAgreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of\nCalifornia. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an\nappropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in\nconnection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’\nfees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of\nthis Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be\namended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts,\neach of which shall be enforceable as an original, but which together shall constitute one and the same instrument.\n17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one\nyear after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon\nwritten notice to the other party. Notwithstanding termination of this\nAgreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto\nshall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such\ntermination.\n18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof.\nEach person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the\nperson, firm or corporation listed above his or her name.\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below.\nIXTA Catapult Communications Corporation\nBy: /s/ Ronald W. Buckley By: /s/ Richard A. Karp\nName: Ronald W. Buckley Name: Richard A. Karp\nTitle: SVP & General Counsel Title: Chairman & CEO\nATTACHMENT A\nSubject(s)_of Confidential Information:\nInformation and data regarding the business of each party, including but not limited to products, product development plans, customers,\nfinancial information and employees.\nPurpose(s)_of Disclosure of Confidential Information:\nTo enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving\nParty’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.	X-99.(E)(3) 3 f52580exv99wxeyx3y.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT ("Agreement") is entered into effective March 25, 2009 (the "Effective Date") by and\nbetween IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and\nCATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman\nRoad, Mountain View, California 94041.\nRECITALS:\nWHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the\npurpose of exploring a potential business relationship (the "Transaction") to the parties' mutual benefit;\nWHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited\npurpose(s) set forth on Attachment A hereto;\nNOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party ("Disclosing Party") of Confidential\nInformation (as defined below) to the other party ("Receiving Party"), which Receiving Party acknowledges to be good and valuable\nconsideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows:\nAGREEMENT:\n1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct.\n2. "Confidential Information," as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of\nsuch information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such\ninformation and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before\nor\nafter the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including,\nwithout limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, "Representatives") to\nReceiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party,\nis marked or otherwise identified as "Confidential," "Proprietary," "Sensitive" or in another manner indicating its confidential and/or proprietary\nnature,\nor\nby\nthe\nnature\nof\nthe\ncircumstances\nsurrounding\nthe\ndisclosure\nor\nreceipt\nof\nthe\ninformation\nor\nmaterial\nshould\nbe\ntreated\nas\nConfidential\nInformation. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of\nthrough or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party's premises or communications\nwith Disclosing Party's\n1\nRepresentatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other\nmaterials prepared by Receiving Party to the extent they contain or reflect Disclosing Party's Confidential Information.\nWithout limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information\nand materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether\npatentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts,\nresearch, development, operations, production techniques, purchasing information, employee names and information, employee expertise,\nprocesses, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables,\ndevelopment plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing\npolicies.\nNotwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made\navailable (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which\nconcerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions\nin\nperson or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information\nfurnished or made available is written or oral, or is or is not marked or otherwise identified as "Confidential" "Proprietary," or "Sensitive," shall\nbe deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof.\n3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than\nas\nresult of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party's\nConfidentia Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later\npublished or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known\nto\nReceiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to\nReceiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is\napproved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law,\nrule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party\nshall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available\nwith\nrespect\nto\nthe confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies\nto any information or materials.\n4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the "Purpose") and shall\nhold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any\n2\nperson or persons other than Receiving Party's Representatives who have a legitimate need to know or to have access to such Confidential\nInformation and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain\nthe\nconfidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement,\nand\nwill be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care\nas is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party's Confidential Information and represents that such\ndegree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly\npermitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential\nInformation of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party\nunder this Agreement Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized\ndisclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become\naware\nand that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither\nparty shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence\nof\nthis Agreement or the identity of the parties hereto.\n5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile\nany Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops\nand/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently\ndeveloped or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts,\ntechniques or systems contained in the Disclosing Party's Confidential Information disclosed under this Agreement. Each party understands and\nagrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from\na\nthird party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without\nobligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and\nwithout any use of or reference to the Confidential Information of Disclosing Party.\n6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and,\nin\nthat case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing\nParty, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives' possession and confirm such\ndestruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together\nwith any copies thereof that may have been made) in its or its Representatives' possession. In addition, in the event of such a decision or request,\nall other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving\nParty shall not be required to destroy or return any\n3\nelectronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any\nsuch electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or\ndestruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of\nconfidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential\nInformation. Any oral Confidential Information will continue to be subject to the terms of this Agreement.\n7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors,\nemployees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any\nexpress or implied representation or warranty as to the accuracy or completeness of the Confidentia Information, and the parties agree that no\nsuch person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further be\nagree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will\nentitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to\nthe Transaction, subject to such limitations and restrictions as may be contained therein.\n8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or\nobtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides\nDisclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature\nof Disclosing Party's Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving\nParty of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury\nto\nDisclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a\nbreach by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party.\n9. The parties are aware, and will advise their respective Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it\nis\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior\nwritten consent of the other party (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities of the other\n4\nparty or any subsidiary thereof, or of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or\ndivision thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any "solicitation"\nof\n"proxies" (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity\nwith respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal\nfor, or offer of (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (iv) form, join or in\nany way participate in a "group" (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of\nthe foregoing; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to\nthe immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a\npotential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult\nwill not be obligated to advise Ixia of any such inquiries or proposals.\n11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment\nor employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for\nemployment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it\nin\nconnection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who\nrespond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not\npreviously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements.\n12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a\npossible\nTransaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating\nwith any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person);\n(b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time\nwithout prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives\nwith regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless\nand until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor\nany of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other\nwritten or oral expression with respect to the Transaction or otherwise.\n13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written\nconsent of the other party, which\n5\nconsent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital\nstock of Disclosing Party is acquired by any person or entity, Receiving Party's consent shall not be required for an assignment of this Agreement\nto such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto\nand their respective successors and permitted assigns.\n14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidentia\nInformation whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to\nDisclosing Party's proprietary rights or Confidential Information The parties further acknowledge and agree that each party reserves the right,\nin\nits\nsole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason.\n15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of\neither\nparty to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with\nany third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship\nbetween Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-a-\nvis\none\nanother. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express\nor\nimplied, on behalf of the other party.\n16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes\nany and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between\nany provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this\nAgreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of\nCalifornia. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in\nan\nappropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event tha litigation arises in\nconnection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys'\nfees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision\nof\nthis Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be\namended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts,\neach of which shall be enforceable as an original, but which together shall constitute one and the same instrument.\n17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one\nyear after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon\nwritten notice to the other party. Notwithstanding termination of this\n6\nAgreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto\nshall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such\ntermination.\n18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof.\nEach person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the\nperson, firm or corporation listed above his or her name.\nIN\nWITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below.\nIXIA\nCatapult Communications Corporation\nBy:\n/s/ Ronald W. Buckley\nBy:\n/s/ Richard A. Karp\nName: Ronald W. Buckley\nName: Richard A. Karp\nTitle: SVP & General Counsel\nTitle: Chairman & CEO\n7\nATTACHMENT A\nSubject(s) of Confidential Information:\nInformation and data regarding the business of each party, including but not limited to products, product development plans, customers,\nfinancial information and employees.\nPurpose(s) of Disclosure of Confidential Information:\nTo enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving\nParty's possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.	EX-99.(E)(3) 3 f52580exv99wxeyx3y.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and\nbetween IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and\nCATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman\nRoad, Mountain View, California 94041.\nRECITALS:\nWHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the\npurpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit;\nWHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited\npurpose(s) set forth on Attachment A hereto;\nNOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential\nInformation (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable\nconsideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows:\nAGREEMENT:\n1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct.\n2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of\nsuch information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such\ninformation and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or\nafter the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including,\nwithout limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to\nReceiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party,\nis marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary\nnature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential\nInformation. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of\nthrough or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications\nwith Disclosing Party’s\n1\nRepresentatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other\nmaterials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information.\nWithout limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information\nand materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether\npatentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts,\nresearch, development, operations, production techniques, purchasing information, employee names and information, employee expertise,\nprocesses, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables,\ndevelopment plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing\npolicies.\nNotwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made\navailable (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which\nconcerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in\nperson or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information\nfurnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall\nbe deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof.\n3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than\nas result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s\nConfidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later\npublished or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to\nReceiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to\nReceiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is\napproved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law,\nrule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party\nshall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to\nthe confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies\nto any information or materials.\n4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall\nhold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any\n2\nperson or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential\nInformation and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the\nconfidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and\nwill be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care\nas is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such\ndegree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly\npermitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential\nInformation of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party\nunder this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized\ndisclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become\naware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither\nparty shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of\nthis Agreement or the identity of the parties hereto.\n5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile\nany Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops\nand/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently\ndeveloped or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts,\ntechniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and\nagrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a\nthird party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without\nobligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and\nwithout any use of or reference to the Confidential Information of Disclosing Party.\n6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in\nthat case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing\nParty, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such\ndestruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together\nwith any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request,\nall other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving\nParty shall not be required to destroy or return any\n3\nelectronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any\nsuch electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or\ndestruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of\nconfidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential\nInformation. Any oral Confidential Information will continue to be subject to the terms of this Agreement.\n7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors,\nemployees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any\nexpress or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no\nsuch person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further\nagree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be\nentitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to\nthe Transaction, subject to such limitations and restrictions as may be contained therein.\n8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or\nobtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides\nDisclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature\nof Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving\nParty of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to\nDisclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a\nbreach by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party.\n9. The parties are aware, and will advise their respective Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior\nwritten consent of the other party : (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities of the other\n4\nparty or any subsidiary thereof, or of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or\ndivision thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of\n“proxies” (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity\nwith respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal\nfor, or offer of (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (iv) form, join or in\nany way participate in a “group” (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of\nthe foregoing; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to\nthe immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a\npotential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult\nwill not be obligated to advise Ixia of any such inquiries or proposals.\n11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment\nor employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for\nemployment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in\nconnection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who\nrespond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not\npreviously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements.\n12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a\npossible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating\nwith any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person);\n(b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time\nwithout prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives\nwith regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless\nand until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor\nany of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other\nwritten or oral expression with respect to the Transaction or otherwise.\n13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written\nconsent of the other party, which\n5\nconsent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital\nstock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement\nto such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto\nand their respective successors and permitted assigns.\n14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential\nInformation whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to\nDisclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in\nits sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason.\n15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of\neither party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with\nany third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship\nbetween Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-\nvis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or\nimplied, on behalf of the other party.\n16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes\nany and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between\nany provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this\nAgreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of\nCalifornia. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an\nappropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in\nconnection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’\nfees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of\nthis Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be\namended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts,\neach of which shall be enforceable as an original, but which together shall constitute one and the same instrument.\n17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one\nyear after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon\nwritten notice to the other party. Notwithstanding termination of this\n6\nAgreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto\nshall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such\ntermination.\n18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof.\nEach person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the\nperson, firm or corporation listed above his or her name.\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below.\nIXIA\nCatapult Communications Corporation\nBy: /s/ Ronald W. Buckley\nBy: /s/ Richard A. Karp\nName: Ronald W. Buckley\nName: Richard A. Karp\nTitle: SVP & General Counsel\nTitle: Chairman & CEO\n7\nATTACHMENT A\nSubject(s) of Confidential Information:\nInformation and data regarding the business of each party, including but not limited to products, product development plans, customers,\nfinancial information and employees.\nPurpose(s) of Disclosure of Confidential Information:\nTo enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving\nParty’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.
3c19cab83f40f722fc8c1432299d7655.pdf	effective_date jurisdiction party term	EX-10 2 bhb8kmaltzhireex101.htm\nEXHIBIT 10.1\nCHANGE IN CONTROL, CONFIDENTIALITY,\nAND NONCOMPETITION AGREEMENT\nTHIS CHANGE IN CONTROL, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT is made and entered into this 10th day of July, 2014 by and between BAR\nHARBOR BANKSHARES, a Maine corporation with its headquarters located in Bar Harbor,\nMaine (hereinafter, “the Company”), and Richard Maltz, a resident of Hampden, , Maine\n(hereinafter, “the Executive").\nWITNESSETH:\nWHEREAS, Bar Harbor Bank & Trust is a wholly-owned first tier banking subsidiary of\nBar Harbor Bankshares, and Bar Harbor Trust Services is a second tier non-depository trust\ncompany subsidiary of Bar Harbor Bankshares; and\nWHEREAS, the Executive is an employee of the Employer; and\nWHEREAS, the Employer wishes to retain the services of the Executive by providing the\nassurances contained herein.\nNOW, THEREFORE, the parties hereto do hereby agree as follows:\n1.\nDEFINTIONS.\n1.1. Bank shall mean Bar Harbor Bank & Trust.\n1.2. Base Compensation shall mean the annual base salary payable by the Employer to\nthe Executive, excluding any bonuses, incentive compensation and other forms of additional\ncompensation.\n1.3 Cause shall be deemed to exist only in the event the Executive is convicted by a\ncourt of competent jurisdiction of a felony involving dishonesty or fraud on the part of the\nExecutive in his or her relationship with the Employer.\n1.4. Change in Control shall mean the occurrence of any one of the following events:\n(a) Any person, including a group (as such term is used in Section 13(d) of\nthe Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the\nbeneficial owner (as determined pursuant to Rule 13d-3 under the Exchange Act),\ndirectly or indirectly, of securities of Bar Harbor Bankshares representing more than fifty\npercent (50%) of the combined voting power of Bar Harbor Bankshares' then outstanding\nsecurities, other than as a result of an issuance of securities initiated by Bar Harbor\nBankshares in the ordinary course of its business; or\n(b) Bar Harbor Bankshares is party to a Business Combination (as hereinafter\ndefined) unless, following consummation of the Business Combination, more than fifty\npercent (50%) of the outstanding voting securities of the resulting entity are beneficially\nowned, directly or indirectly, by the holders of Bar Harbor Bankshares' outstanding\nvoting securities immediately prior to the Business Combination in substantially the same\nproportions as those existing immediately prior to the Business Combination; or\n(c) The stockholders of Bar Harbor Bankshares approve a plan of complete\nliquidation of Bar Harbor Bankshares or an agreement for the sale or disposition by Bar\nHarbor Bankshares of all or substantially all of Bar Harbor Bankshares' assets to another\nperson or entity that is not a wholly owned subsidiary of Bar Harbor Bankshares.\nFor purposes of this Section 1.4, a Business Combination means any cash tender or\nexchange offer, merger or other business combination, sale of stock, or sale of all or substantially\nall of the assets, or any combination of the foregoing transactions.\nFor purposes of this Section 1.4, a Change in Control shall exclude any internal corporate\nchange, reorganization or other such event, which occurred prior to or may occur following the\ndate of this Agreement.\n1.5. Code shall mean the Internal Revenue Code of 1986, as amended, and as it may\nbe amended from time to time, together with the rules and regulations promulgated under such\ncode.\n1.6. Company shall mean Bar Harbor Bankshares.\n1.7. Date of Termination shall mean:\n(a) If the Executive incurs a separation from service for Disability, thirty (30)\ndays after Notice of Termination for Disability is given by the Employer to the Executive\nand the Executive shall not have returned to the performance of his duties on a full-time\nbasis during such thirty (30) day period;\n(b) If the Executive's service is separated by the Employer for Cause or by the\nExecutive for Good Reason, the date on which the Executive separates from service with\nthe Employer; and\n(c) If the Executive incurs a separation from service for any other reason, the\ndate on which the Executive incurs a separation from service with the Employer.\nWhether the Executive has incurred a separation from service is determined based on\nwhether the facts and circumstances indicate that the Employer and the Executive reasonably\nanticipated that no further services would be performed after a certain date.\n1.8. Disability shall mean a condition: (a) which causes the Executive to be unable to\nengage in any substantial gainful activity by reason of any medically determinable physical or\nmental impairment which can be expected to result in death or which can be expected to last for\na continuous period of not less than twelve months; or (b) which results in the Executive\nreceiving, by reason of any medically determinable physical or mental impairment which can be\nexpected to result in death or which can be expected to last for a continuous period of not less\nthan twelve months, income replacement benefits for a period of not less than three months\nunder an accident and health plan covering employees of the Employer. Disability shall be\ndeemed to exist only when the disability has been certified to the Board of Directors of the\nCompany by a licensed physician approved by the Board of Directors of the Company.\n1.9. Employer shall mean the Company, the Bank or Trust Services (whichever entity\nis the employer of the Executive).\n1.10. Exemption Amount shall mean two times the lesser of: (a) the Executive’s\nannualized compensation based on the Executive’s annual rate of pay for the calendar year\npreceding the calendar year in which the Date of Termination occurs; or (b) the limitation on\ncompensation set forth in Code Section 401(a)(17) for the calendar year in which the Date of\nTermination occurs.\n1.11. Good Reason shall mean one or more of the following events arising without the\nconsent of the Executive:\n(a)\na material diminution in the Executive’s Base Compensation;\n(b) a material diminution in the Executive’s authority, duties or\nresponsibilities;\n(c)\na material diminution in the authority, duties or responsibilities of the\nperson to whom the Executive is required to report;\n(d) a material diminution in the budget over which the Executive retains\nauthority;\n(e)\na material change in the geographic location at which the Executive must\nperform his services; or\n(f)\nany other action or inaction that constitutes a material breach by the\nCompany of the Agreement or any other agreement under which the Executive provides\nservices.\nIn order for a separation from service to occur for Good Reason, the separation from\nservice must occur within two years following the initial existence of the event constituting Good\nReason.\n1.12. Key Employee shall mean an employee who is: (a) an officer of the Company,\nthe Bank or Trust Services whose earnings from the Company, the Bank and Trust Services\nexceed $145,000 (as adjusted under Code Section 416(i)(1) for calendar years beginning after\nDecember 31, 2007); (b) an owner of more than a five percent (5%) interest in the Company, the\nBank or Trust Services; or (c) an owner of more than a one percent (1%) interest in the\nCompany, the Bank or Trust Services whose earnings from the Company, the Bank and Trust\nServices exceed $150,000.\n1.13. Notice of Termination shall mean the notice provided pursuant to Section 3.\n1.14. Trust Services shall mean Bar Harbor Trust Services.\n2.\nSEVERANCE BENEFITS.\nIn the event that: (a) the Employer separates the Executive's service other than as a result of\nDisability and other than for Cause, or the Executive separates his or her service for Good Reason; and (b) the\nExecutive's separation from service occurs in anticipation of or within one year after a Change in Control, then the\nEmployer shall pay the Executive the severance benefits described in this Section 2. The Executive's separation\nfrom service shall be deemed to be in anticipation of a Change in Control if it occurs within the twelve (12) month\nperiod prior to the occurrence of the Change in Control. Notwithstanding the foregoing, if the payment of the\nseverance benefits would result in an excess parachute payment as defined under Code Section 280G, then the\namount of the severance benefits to be paid to the Executive shall be reduced to an amount equal to the maximum\ndollar amount that can be paid to the executive without causing the payment of an excess parachute payment.\nThe severance benefits described in this Section 2 shall equal the following:\n(a) The Executive shall receive a severance payment equal to 1.0 times the\nExecutive’s Base Compensation, determined as of the Date of Termination.\n(i)\nSubject to the provisions of Section 2(a)(ii), the Executive’s severance\npayment shall be paid in lump sum on the first day of the month following the Executive’s Date of\nTermination, less any applicable tax withholdings.\n(ii) Notwithstanding the provisions of Section 2(a)(i), if the Executive\nis a Key Employee on the Executive’s Date of Termination and any portion of the\nseverance payment is greater than the Exemption Amount and not eligible for any\nother exemption from Section 409A of the Code , then such portion of the\nseverance payment shall be paid in a lump sum on the first day of the seventh\nmonth following the Executive’s Date of Termination.\n(b) The Executive and his or her dependents shall continue to be eligible to\nreceive the same medical, health, dental, vision, and life insurance benefits which the\nExecutive is eligible to receive on the Date of Termination. The Executive shall be\nrequired to make the same premium contributions that he or she was required to make\nimmediately prior to the Date of Termination. The ability of the Executive and his or her\ndependents to receive such benefits shall continue until the twelve month anniversary of\nthe Executive’s Date of Termination.\n(c) In the event of a Change in Control, all stock options granted but\nunexercised under the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option\nPlan of 2000, The Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of\n2009, or any other equity plan shall become 100% vested immediately prior to such\nChange in Control. These grants will remain subject to all of the other terms and\nconditions in the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option Plan\nof 2000, the Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of 2009, or\nany other equity plan.\nThe Executive shall not be required to mitigate the amount of any severance benefits\ndescribed in this Section 2 by seeking other employment.\n3. NOTICE OF TERMINATION.\nAny separation of the Executive's service by the Employer due to Disability or for Cause,\nor by the Executive due to Good Reason, shall be communicated by written Notice of\nTermination to the other party. A Notice of Termination must indicate the specific provisions in\nthis Agreement which are relied upon as the basis for the separation of the Executive's service,\nand must also set forth in reasonable detail the facts and circumstances claimed to provide the\nbasis for such separation from service under the provisions so indicated.\nNotwithstanding the above, in order for the Executive to separate from service with the\nEmployer for Good Reason, the Executive must provide the Notice of Termination to the\nEmployer no later than ninety (90) days after the date of the initial occurrence of the condition or\nconditions alleged to give rise to Good Reason. In addition, the Executive must provide the\nEmployer a period of at least thirty (30) days during which the Employer can remedy the\ncondition or conditions alleged to give rise to Good Reason and not be required to pay the\namounts described in Section 2.\n4.\nLOSS OF SEVERANCE BENEFITS.\nIf the Employer shall terminate the Executive's service due to Disability or for Cause, or\nif the Executive shall terminate his or her service other than for Good Reason, or if the Executive\nshall die, then the Executive shall have no right to receive any severance benefits under this\nAgreement.\n5.\nNO OTHER BENEFITS PAYABLE.\n(a) If the Executive is entitled to receive the severance benefits described in Section\n2 of this Agreement, he or she shall not be entitled to receive: (i) any severance benefits under\nthe terms of any general severance pay policy or plan of the Employer or any successor\ncompany; or (ii) any other compensation, benefits or payments under the terms of any other plan\nof, or agreement with, the Employer.\n(b) Notwithstanding the above, the Executive shall be entitled to receive any\ncompensation, benefits or payments which are specifically authorized by the terms of any plan\nof, or agreement with, the Employer to be paid in addition to the severance benefits described in\nSection 2 of this Agreement. Moreover, notwithstanding the above, the Executive shall be\nentitled to receive, in addition to the severance benefits described in Section 2 of this Agreement,\nany compensation, benefits or payments which the Executive is entitled to receive under: (i) any\nincentive compensation plan maintained by the Employer which provides for payment to a\nseparated employee of incentive compensation earned by the employee prior to his or her\nseparation from service; or (ii) any payroll plan or policy of the Employer which provides for\npayment to a separated employee of any unpaid vacation, holiday or sick pay accrued by the\nemployee prior to his or her separation from service.\n6.\nSUCCESSORS.\n(a) The Employer will require any successor (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise) to all or substantially all of the business and/or assets of the\nEmployer to expressly assume and agree to perform its obligations under this Agreement in the\nsame manner and to the same extent that the Employer would be required to perform them if no\nsuch succession had taken place. Each such successor shall execute a written agreement\nevidencing its assumption of the Employer's obligations under this Agreement prior to the\neffective date of any such purchase, merger, consolidation or other transaction.\n(b) The failure of the Employer to obtain from each successor the written agreement\ndescribed in Section 6(a) shall be deemed to be a material breach of the obligations of the\nEmployer under this Agreement, and shall entitle the Executive to incur a separation from\nservice for Good Reason pursuant to Section 1.11(f).\n(c) As used in this Section 6, the Employer shall include the Company, the Bank,\nTrust Services and any successor to all or substantially all of the business and/or assets of any of\nthem (whether direct or indirect, by purchase, merger, consolidation or otherwise) which\nexecutes and delivers the written agreement described in Section 6(a) or which otherwise\nbecomes bound by all the terms and provisions of this Agreement.\n7.\nCONFIDENTIAL INFORMATION, NON-COMPETITION OBLIGATIONS, AND\nNON-SOLICITATION.\n(a) Confidential Information\nThe Executive recognizes and acknowledges that certain assets of the Employer, the\nCompany, the Bank, Trust Services, or any of their affiliates or subsidiaries constitutes\nConfidential Information.\nFor purposes hereof, the term "Confidential Information" means any and all information\nand compilations of information, in whatever form or medium (including any copies thereof),\nrelating to any part of the business of the Employer, the Company, the Bank, Trust Services or\nany of their subsidiaries or affiliates, or the business of their customers, provided to the\nExecutive, or which the Executive obtained or compiled or had obtained or compiled on his or\nher behalf, which information or compilations of information are not a matter of public record or\ngenerally known to the public, including without limitation:\n(i)\nfinancial information regarding the Employer, the Company, the Bank,\nTrust Services or any of their subsidiaries or affiliates;\n(ii) personnel data, including compensation arrangements relating to the\nExecutive or any other employees of the Employer, the Company, the Bank, Trust\nServices, or any of their subsidiaries or affiliates;\n(iii) internal plans, practices, and procedures of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(iv)\nthe names, portfolio information, investment strategies, requirements,\nlending or deposit information, or any similar information of any customers, clients, or\nprospects of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates;\n(v) business methods and marketing strategies of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(vi) any other information expressly deemed confidential by the officers and\ndirectors of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates; and\n(vii) the terms and conditions of the Agreement and any documents or\ninstruments executed in connection herewith that are not of public record.\nThe Executive shall not, without the prior written consent of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates, use or disclose, or negligently\npermit any unauthorized person to use, disclose, or gain access to, any Confidential Information.\nUpon termination of employment, the Executive hereby agrees to deliver promptly to the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates all\nmemoranda, notes, records, manuals, or other documents, including all copies of such materials,\ncontaining Confidential Information, whether made or compiled by the Executive or furnished to\nhim or her from any source by virtue of the Executive’s relationship with the Employer, the\nCompany, the Bank, Trust Services, or any of their subsidiaries or affiliates.\nRegardless of the reason for his or her cessation of employment, the Executive will\nfurnish such information as may be in the Executive’s possession and cooperate with the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates as\nmay reasonably be requested in connection with any claims or legal actions in which the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates are or\nmay become a party. The Employer will reimburse the Executive for any reasonable out-of-\npocket expenses the Executive incurs in order to satisfy his or her obligations under this clause.\n(b) Non-Competition Obligations\nIn consideration of the covenants of the Employer contained herein, the Executive\ncovenants and agrees with the Employer that, during the "Non-Compete Period" (as hereinafter\ndefined) and within a one hundred fifty (150) "air" mile radius from Bar Harbor, Maine, the\nExecutive shall not without specific approval, directly or indirectly:\n(i)\nadvise any past, present, or future customers of the Employer to withdraw,\ncurtail, or cancel his or her or its business with the Employer; or\n(ii) cause, suggest, or induce others to call on any past, present, or future\ncustomers of the Employer.\nThe "Non-Compete Period" shall commence on the date hereof and terminate one year\nafter the cessation of the Executive’s employment with the Employer and all of its affiliates,\nregardless of reason, whether or not pursuant to this Agreement.\n(c) Non-Solicitation of Employees\nWhile employed by the Employer, and for one year following cessation of his or her\nemployment with the Employer and all of its affiliates for any reason, the Executive shall not,\ndirectly or indirectly, by any means or device whatsoever, for himself or herself or on behalf of,\nor in conjunction with, any other person, partnership or corporation, solicit, entice, hire, or\nattempt to hire or employ any employee of the Employer, the Company, the Bank, Trust Services\nor any of their affiliated entities.\n8.\nREFORMATION; INJUNCTIVE RELIEF.\n(a) All the parties hereto acknowledge that the parties have carefully considered the\nnature and scope of this Agreement. The activities, period and area covered by Section 7 are\nexpressly acknowledged and agreed to be fair, reasonable and necessary. To the extent that any\ncovenant contained in Section 7 is held to be invalid, illegal or unenforceable because of the\nextent of activities, duration of such covenant, the geographic area covered thereby, or otherwise,\nthe parties agree that the court making such determination shall reform such covenant to include\nas much of its nature and scope as will render it enforceable and, in its reduced form, said\ncovenant shall be valid, legal and enforceable to the fullest extent of the law.\nThe invalidity or unenforceability of any provision of this Agreement, after reformation\nas provided in this Section 8, shall not affect any other provision hereof, and this Agreement\nshall be construed in all respects as if such invalid or unenforceable provision was omitted.\nFurthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added\nautomatically as a part of this Agreement a provision as similar in terms to such illegal, invalid,\nor unenforceable provision as may be possible and be legal, valid, and enforceable.\n(b) The Executive acknowledges and agrees that, upon any breach by the Executive\nof his or her obligations under Section 7 hereof, the Employer will have no adequate remedy at\nlaw, and accordingly will be entitled to specific performance and other appropriate injunctive and\nequitable relief, notwithstanding Section 9 hereof. Nothing herein shall be construed as\nprohibiting the Employer from pursuing any other remedies available to it, including the\nrecovery of damages from the Executive.\n9.\nMEDIATION AND ARBITRATION.\nIf the Executive and the Employer have any dispute whatsoever relating to the\ninterpretation, validity or performance of this Agreement, or any other dispute arising out of this\nAgreement, every reasonable attempt will be made to resolve any differences or dispute within\nthirty (30) days of an issuance of written notice by either party to the other party.\nIf a successful resolution of any differences or dispute has not been achieved to the\nsatisfaction of both parties at the end of the thirty (30) day period, the following steps will be\nused:\nExcept as otherwise expressly provided hereunder, the parties agree that any and all\ndisputes arising out of the Executive’s employment or cessation of employment, including but\nnot limited to any dispute, controversy, or claim arising under any federal, state, or local statute,\nlaw, ordinance or regulation or under this Agreement, shall be resolved exclusively by\nAlternative Dispute Resolution described in this Agreement ("ADR"). The initiation of ADR\nshall first require mediation, and the parties agree to first try to settle any dispute through\nmediation. Mediation shall be initiated by either party by the serving of a written notice of intent\nto mediate (a "Mediation Notice") by one party upon the other. If no resolution has been\nmutually agreed through mediation within ninety (90) days of service of a Mediation Notice,\nthen and only then may the dispute be submitted to arbitration. Arbitration shall be initiated by\nthe serving of a written notice of intent to arbitrate (an "Arbitration Notice") by one party upon\nthe other. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to preclude\nthe Employer from seeking temporary or permanent injunctive relief and/or damages from a\ncourt of competent jurisdiction pursuant to Section 8 of this Agreement with respect to any\nbreach of Section 7 of this Agreement.\n(a) In the event that a party wishes to initiate ADR, a Mediation Notice must be\nserved on the other party within six months from the date on which the claim arose. If the parties\ncannot mutually agree on a mediator, then a mediator shall be selected in accordance with the\nEmployment Mediation Rules of the American Arbitration Association.\n(b) In the event that mediation is unsuccessful and arbitration is initiated, it shall be\nconducted under the National Rules of the Resolution of Employment Disputes of the American\nArbitration Association. There shall be a single arbitrator to be agreed upon by the parties,\nprovided that, if the parties are unable to agree upon a single arbitrator, each party shall name an\narbitrator and the two so named shall name a third arbitrator. The arbitration proceedings shall\nbe heard by the arbitrator(s) and the decision of the arbitrator, or the majority of the panel if one\nhas been selected, shall be final and binding on the parties. Judgment upon the arbitration award\nmay be entered in any court of competent jurisdiction. An Arbitration Notice must be served on\nthe other party within one year from the date on which the claim arose, and failure to bring such\na claim within such one-year period shall constitute a waiver of such claim and an absolute bar to\nany further proceedings in any forum with respect to it. All mediation and arbitration\nproceedings shall be conducted in Bangor, Maine, unless the parties otherwise agree in writing.\n(c) The cost of any mediation proceeding under this Section 9 shall be paid entirely\nby the Employer. The cost of any arbitration proceeding will be shared equally by the parties to\nthe dispute; provided, however, that, if the dispute is resolved in favor of the Executive, such cost\nshall be paid in full by the Employer. Each party shall be responsible for its own cost of\nrepresentation and counsel.\n10. POST-TERMINATION OBLIGATIONS .\nAll payments and benefits due to the Executive under this Agreement shall be subject to\nthe Executive's compliance with this Section 10 for one full year following the Executive's Date\nof Termination. The Executive shall, upon reasonable notice, furnish such information and\nassistance to the Employer, the Company, the Bank or Trust Services as may reasonably be\nrequired by the Employer, the Company, the Bank or Trust Services in connection with any\nlitigation in which it or any of its subsidiaries or affiliates is, or may become, a party.\n11. GENERAL PROVISIONS.\n(a) All notices required by this Agreement shall be in writing and shall be sufficiently\ngiven if delivered personally or mailed by registered mail or certified mail, return receipt\nrequested, to the parties at their then current addresses. All notices shall be deemed to have been\ngiven as of the date so delivered or mailed.\nWitness:\n_____________________________\n/s/Mark Clapp\n___________________________\n/s/William Swales\n(b) This Agreement and the plans and agreements described in Section 5(b) contain\nthe entire transaction between the parties, and there are no other representations, warranties,\nconditions or agreements relating to the subject matter thereof. This Agreement hereby\nsupersedes any prior Change in Control Agreement between the Executive and the Company.\n(c) The waiver by any party of any breach or default of any provision of this\nAgreement shall not operate or be construed as a waiver of any subsequent breach.\n(d) This Agreement may not be changed orally but only by an agreement in writing\nexecuted on behalf of the party against which enforcement of any waiver, change, modification,\nconsent or discharge is sought.\n(e) This Agreement shall be binding upon and inure to the benefit of the Employer\nand the Executive and their respective successors, assigns, heirs and legal representatives\n(including, but not limited to, any successor of the Employer described in Section 6).\n(f)\nEach of the parties agrees to execute all further instruments and documents and to\ntake all further action as the other party may reasonably request in order to effectuate the terms\nand purposes of this Agreement.\n(g) This Agreement may be executed in one or more counterparts, all of which taken\ntogether shall constitute one and the same instrument.\n(h) This Agreement shall be construed pursuant to and in accordance with the laws of\nthe State of Maine. Actions brought by the Employer under this Agreement shall be subject to\nthe exclusive jurisdiction of the state and federal courts of Maine. Both parties consent to the\npersonal jurisdiction of such courts for such actions, and agree that they may be served with\nprocess in accordance with Section 11(a). Notwithstanding anything herein to the contrary, any\npayments to the Executive, whether pursuant to this Agreement or otherwise, are subject to and\nconditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, §12\nU.S .C . 1828(k) and any regulations promulgated thereunder.\n(i)\nThe Executive acknowledges that he has had a full and complete opportunity to\nreview the terms, enforceability and implications of this Agreement, and that the Employer has\nnot made any representations or warranties to the Executive concerning the terms, enforceability\nand implications of this Agreement other than as are reflected in this Agreement.\n(j) Any provision of this Agreement that is susceptible to more than one\ninterpretation shall be interpreted in a manner that is consistent with this Agreement satisfying\nthe requirements of Code Section 409A.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first\nabove written.\nCOMPANY:\nBAR HARBOR BANKSHARES\nBY\n________________________________________\n/s/Peter Dodge\nPeter Dodge,\nPeter Dodge,\nIts Chairman of the Board\nWitness:\nEXECUTIVE:\nBY\n_______________________________________\n/s/Richard Maltz	EX-10 2 bhb8kmaltzhireex101.htm\nEXHIBIT 10.1\nCHANGE IN CONTROL, CONFIDENTIALITY,\nAND NONCOMPETITION AGREEMENT\nTHIS CHANGE IN CONTROL, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT is made and entered into this 10th day of July, 2014 by and between BAR\nHARBOR BANKSHARES, a Maine corporation with its headquarters located in Bar Harbor,\nMaine (hereinafter, “the Company™), and Richard Maltz, a resident of Hampden, , Maine\n(hereinafter, “the Executive").\nWITNESSETH:\nWHEREAS, Bar Harbor Bank & Trust is a wholly-owned first tier banking subsidiary of\nBar Harbor Bankshares, and Bar Harbor Trust Services is a second tier non-depository trust\ncompany subsidiary of Bar Harbor Bankshares; and\nWHEREAS, the Executive is an employee of the Employer; and\nWHEREAS, the Employer wishes to retain the services of the Executive by providing the\nassurances contained herein.\nNOW, THEREFORE, the parties hereto do hereby agree as follows:\n1. DEFINTIONS.\n1.1.  Bank shall mean Bar Harbor Bank & Trust.\n1.2.  Base Compensation shall mean the annual base salary payable by the Employer to\nthe Executive, excluding any bonuses, incentive compensation and other forms of additional\ncompensation.\n1.3 Cause shall be deemed to exist only in the event the Executive is convicted by a\ncourt of competent jurisdiction of a felony involving dishonesty or fraud on the part of the\nExecutive in his or her relationship with the Employer.\n1.4.  Change in Control shall mean the occurrence of any one of the following events:\n(a) Any person, including a group (as such term is used in Section 13(d) of\nthe Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the\nbeneficial owner (as determined pursuant to Rule 13d-3 under the Exchange Act),\ndirectly or indirectly, of securities of Bar Harbor Bankshares representing more than fifty\npercent (50%) of the combined voting power of Bar Harbor Bankshares' then outstanding\nsecurities, other than as a result of an issuance of securities initiated by Bar Harbor\nBankshares in the ordinary course of its business; or\n(b) Bar Harbor Bankshares is party to a Business Combination (as hereinafter\ndefined) unless, following consummation of the Business Combination, more than fifty\npercent (50%) of the outstanding voting securities of the resulting entity are beneficially\nowned, directly or indirectly, by the holders of Bar Harbor Bankshares' outstanding\nvoting securities immediately prior to the Business Combination in substantially the same\nproportions as those existing immediately prior to the Business Combination; or\n(©) The stockholders of Bar Harbor Bankshares approve a plan of complete\nliquidation of Bar Harbor Bankshares or an agreement for the sale or disposition by Bar\nHarbor Bankshares of all or substantially all of Bar Harbor Bankshares' assets to another\nperson or entity that is not a wholly owned subsidiary of Bar Harbor Bankshares.\nFor purposes of this Section 1.4, a Business Combination means any cash tender or\nexchange offer, merger or other business combination, sale of stock, or sale of all or substantially\nall of the assets, or any combination of the foregoing transactions.\nFor purposes of this Section 1.4, a Change in Control shall exclude any internal corporate\nchange, reorganization or other such event, which occurred prior to or may occur following the\ndate of this Agreement.\n1.5.  Code shall mean the Internal Revenue Code of 1986, as amended, and as it may\nbe amended from time to time, together with the rules and regulations promulgated under such\ncode.\n1.6.  Company shall mean Bar Harbor Bankshares.\n1.7.  Date of Termination shall mean:\n(a) If the Executive incurs a separation from service for Disability, thirty (30)\ndays after Notice of Termination for Disability is given by the Employer to the Executive\nand the Executive shall not have returned to the performance of his duties on a full-time\nbasis during such thirty (30) day period;\n(b) If the Executive's service is separated by the Employer for Cause or by the\nExecutive for Good Reason, the date on which the Executive separates from service with\nthe Employer; and\n(0 If the Executive incurs a separation from service for any other reason, the\ndate on which the Executive incurs a separation from service with the Employer.\nWhether the Executive has incurred a separation from service is determined based on\nwhether the facts and circumstances indicate that the Employer and the Executive reasonably\nanticipated that no further services would be performed after a certain date.\n1.8.  Disability shall mean a condition: (a) which causes the Executive to be unable to\nengage in any substantial gainful activity by reason of any medically determinable physical or\nmental impairment which can be expected to result in death or which can be expected to last for\na continuous period of not less than twelve months; or (b) which results in the Executive\nreceiving, by reason of any medically determinable physical or mental impairment which can be\nexpected to result in death or which can be expected to last for a continuous period of not less\nthan twelve months, income replacement benefits for a period of not less than three months\nunder an accident and health plan covering employees of the Employer. Disability shall be\ndeemed to exist only when the disability has been certified to the Board of Directors of the\nCompany by a licensed physician approved by the Board of Directors of the Company.\n1.9. Employer shall mean the Company, the Bank or Trust Services (whichever entity\nis the employer of the Executive).\n1.10. Exemption Amount shall mean two times the lesser of: (a) the Executive’s\nannualized compensation based on the Executive’s annual rate of pay for the calendar year\npreceding the calendar year in which the Date of Termination occurs; or (b) the limitation on\ncompensation set forth in Code Section 401(a)(17) for the calendar year in which the Date of\nTermination occurs.\n1.11. Good Reason shall mean one or more of the following events arising without the\nconsent of the Executive:\n(a) a material diminution in the Executive’s Base Compensation;\n(b) a material diminution in the Executive’s authority, duties or\nresponsibilities;\n(0 a material diminution in the authority, duties or responsibilities of the\nperson to whom the Executive is required to report;\n(d) a material diminution in the budget over which the Executive retains\nauthority;\n(e) a material change in the geographic location at which the Executive must\nperform his services; or\nH any other action or inaction that constitutes a material breach by the\nCompany of the Agreement or any other agreement under which the Executive provides\nservices.\nIn order for a separation from service to occur for Good Reason, the separation from\nservice must occur within two years following the initial existence of the event constituting Good\nReason.\n1.12. Key Employee shall mean an employee who is: (a) an officer of the Company,\nthe Bank or Trust Services whose earnings from the Company, the Bank and Trust Services\nexceed $145,000 (as adjusted under Code Section 416(i)(1) for calendar years beginning after\nDecember 31, 2007); (b) an owner of more than a five percent (5%) interest in the Company, the\nBank or Trust Services; or (c) an owner of more than a one percent (1%) interest in the\nCompany, the Bank or Trust Services whose earnings from the Company, the Bank and Trust\nServices exceed $150,000.\n1.13. Notice of Termination shall mean the notice provided pursuant to Section 3.\n1.14. Trust Services shall mean Bar Harbor Trust Services.\n2. SEVERANCE BENEFITS.\nIn the event that: (a) the Employer separates the Executive's service other than as a result of\nDisability and other than for Cause, or the Executive separates his or her service for Good Reason; and (b) the\nExecutive's separation from service occurs in anticipation of or within one year after a Change in Control, then the\nEmployer shall pay the Executive the severance benefits described in this Section 2. The Executive's separation\nfrom service shall be deemed to be in anticipation of a Change in Control if it occurs within the twelve (12) month\nperiod prior to the occurrence of the Change in Control. Notwithstanding the foregoing, if the payment of the\nseverance benefits would result in an excess parachute payment as defined under Code Section 280G, then the\namount of the severance benefits to be paid to the Executive shall be reduced to an amount equal to the maximum\ndollar amount that can be paid to the executive without causing the payment of an excess parachute payment.\nThe severance benefits described in this Section 2 shall equal the following:\n(a) The Executive shall receive a severance payment equal to 1.0 times the\nExecutive’s Base Compensation, determined as of the Date of Termination.\n(i) Subject to the provisions of Section 2(a)(ii), the Executive’s severance\npayment shall be paid in lump sum on the first day of the month following the Executive’s Date of\nTermination, less any applicable tax withholdings.\n(ii) Notwithstanding the provisions of Section 2(a)(i), if the Executive\nis a Key Employee on the Executive’s Date of Termination and any portion of the\nseverance payment is greater than the Exemption Amount and not eligible for any\nother exemption from Section 409A of the Code , then such portion of the\nseverance payment shall be paid in a lump sum on the first day of the seventh\nmonth following the Executive’s Date of Termination.\n(b) The Executive and his or her dependents shall continue to be eligible to\nreceive the same medical, health, dental, vision, and life insurance benefits which the\nExecutive is eligible to receive on the Date of Termination. The Executive shall be\nrequired to make the same premium contributions that he or she was required to make\nimmediately prior to the Date of Termination. The ability of the Executive and his or her\ndependents to receive such benefits shall continue until the twelve month anniversary of\nthe Executive’s Date of Termination.\n(©) In the event of a Change in Control, all stock options granted but\nunexercised under the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option\nPlan of 2000, The Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of\n2009, or any other equity plan shall become 100% vested immediately prior to such\nChange in Control. These grants will remain subject to all of the other terms and\nconditions in the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option Plan\nof 2000, the Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of 2009, or\nany other equity plan.\nThe Executive shall not be required to mitigate the amount of any severance benefits\ndescribed in this Section 2 by seeking other employment.\n3. NOTICE OF TERMINATION.\nAny separation of the Executive's service by the Employer due to Disability or for Cause,\nor by the Executive due to Good Reason, shall be communicated by written Notice of\nTermination to the other party. A Notice of Termination must indicate the specific provisions in\nthis Agreement which are relied upon as the basis for the separation of the Executive's service,\nand must also set forth in reasonable detail the facts and circumstances claimed to provide the\nbasis for such separation from service under the provisions so indicated.\nNotwithstanding the above, in order for the Executive to separate from service with the\nEmployer for Good Reason, the Executive must provide the Notice of Termination to the\nEmployer no later than ninety (90) days after the date of the initial occurrence of the condition or\nconditions alleged to give rise to Good Reason. In addition, the Executive must provide the\nEmployer a period of at least thirty (30) days during which the Employer can remedy the\ncondition or conditions alleged to give rise to Good Reason and not be required to pay the\namounts described in Section 2.\n4. LOSS OF SEVERANCE BENEFITS.\nIf the Employer shall terminate the Executive's service due to Disability or for Cause, or\nif the Executive shall terminate his or her service other than for Good Reason, or if the Executive\nshall die, then the Executive shall have no right to receive any severance benefits under this\nAgreement.\n5. NO OTHER BENEFITS PAYABLE.\n(a) If the Executive is entitled to receive the severance benefits described in Section\n2 of this Agreement, he or she shall not be entitled to receive: (i) any severance benefits under\nthe terms of any general severance pay policy or plan of the Employer or any successor\ncompany; or (ii) any other compensation, benefits or payments under the terms of any other plan\nof, or agreement with, the Employer.\n(b) Notwithstanding the above, the Executive shall be entitled to receive any\ncompensation, benefits or payments which are specifically authorized by the terms of any plan\nof, or agreement with, the Employer to be paid in addition to the severance benefits described in\nSection 2 of this Agreement. Moreover, notwithstanding the above, the Executive shall be\nentitled to receive, in addition to the severance benefits described in Section 2 of this Agreement,\nany compensation, benefits or payments which the Executive is entitled to receive under: (i) any\nincentive compensation plan maintained by the Employer which provides for payment to a\nseparated employee of incentive compensation earned by the employee prior to his or her\nseparation from service; or (ii) any payroll plan or policy of the Employer which provides for\npayment to a separated employee of any unpaid vacation, holiday or sick pay accrued by the\nemployee prior to his or her separation from service.\n6. SUCCESSORS.\n(a) The Employer will require any successor (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise) to all or substantially all of the business and/or assets of the\nEmployer to expressly assume and agree to perform its obligations under this Agreement in the\nsame manner and to the same extent that the Employer would be required to perform them if no\nsuch succession had taken place. Each such successor shall execute a written agreement\nevidencing its assumption of the Employer's obligations under this Agreement prior to the\neffective date of any such purchase, merger, consolidation or other transaction.\n(b) The failure of the Employer to obtain from each successor the written agreement\ndescribed in Section 6(a) shall be deemed to be a material breach of the obligations of the\nEmployer under this Agreement, and shall entitle the Executive to incur a separation from\nservice for Good Reason pursuant to Section 1.11(f).\n() As used in this Section 6, the Employer shall include the Company, the Bank,\nTrust Services and any successor to all or substantially all of the business and/or assets of any of\nthem (whether direct or indirect, by purchase, merger, consolidation or otherwise) which\nexecutes and delivers the written agreement described in Section 6(a) or which otherwise\nbecomes bound by all the terms and provisions of this Agreement.\n7. CONFIDENTIAL INFORMATION, NON-COMPETITION OBLIGATIONS, AND\nNON-SOLICITATION.\n(a) Confidential Information\nThe Executive recognizes and acknowledges that certain assets of the Employer, the\nCompany, the Bank, Trust Services, or any of their affiliates or subsidiaries constitutes\nConfidential Information.\nFor purposes hereof, the term "Confidential Information" means any and all information\nand compilations of information, in whatever form or medium (including any copies thereof),\nrelating to any part of the business of the Employer, the Company, the Bank, Trust Services or\nany of their subsidiaries or affiliates, or the business of their customers, provided to the\nExecutive, or which the Executive obtained or compiled or had obtained or compiled on his or\nher behalf, which information or compilations of information are not a matter of public record or\ngenerally known to the public, including without limitation:\n1) financial information regarding the Employer, the Company, the Bank,\nTrust Services or any of their subsidiaries or affiliates;\n(ii) personnel data, including compensation arrangements relating to the\nExecutive or any other employees of the Employer, the Company, the Bank, Trust\nServices, or any of their subsidiaries or affiliates;\n(iii)  internal plans, practices, and procedures of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(iv)  the names, portfolio information, investment strategies, requirements,\nlending or deposit information, or any similar information of any customers, clients, or\nprospects of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates;\nv) business methods and marketing strategies of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(vi)  any other information expressly deemed confidential by the officers and\ndirectors of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates; and\n(vii)  the terms and conditions of the Agreement and any documents or\ninstruments executed in connection herewith that are not of public record.\nThe Executive shall not, without the prior written consent of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates, use or disclose, or negligently\npermit any unauthorized person to use, disclose, or gain access to, any Confidential Information.\nUpon termination of employment, the Executive hereby agrees to deliver promptly to the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates all\nmemoranda, notes, records, manuals, or other documents, including all copies of such materials,\ncontaining Confidential Information, whether made or compiled by the Executive or furnished to\nhim or her from any source by virtue of the Executive’s relationship with the Employer, the\nCompany, the Bank, Trust Services, or any of their subsidiaries or affiliates.\nRegardless of the reason for his or her cessation of employment, the Executive will\nfurnish such information as may be in the Executive’s possession and cooperate with the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates as\nmay reasonably be requested in connection with any claims or legal actions in which the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates are or\nmay become a party. The Employer will reimburse the Executive for any reasonable out-of-\npocket expenses the Executive incurs in order to satisfy his or her obligations under this clause.\n(b) Non-Competition Obligations\nIn consideration of the covenants of the Employer contained herein, the Executive\ncovenants and agrees with the Employer that, during the "Non-Compete Period" (as hereinafter\ndefined) and within a one hundred fifty (150) "air" mile radius from Bar Harbor, Maine, the\nExecutive shall not without specific approval, directly or indirectly:\n1) advise any past, present, or future customers of the Employer to withdraw,\ncurtail, or cancel his or her or its business with the Employer; or\n(ii) cause, suggest, or induce others to call on any past, present, or future\ncustomers of the Employer.\nThe "Non-Compete Period" shall commence on the date hereof and terminate one year\nafter the cessation of the Executive’s employment with the Employer and all of its affiliates,\nregardless of reason, whether or not pursuant to this Agreement.\n(©) Non-Solicitation of Employees\nWhile employed by the Employer, and for one year following cessation of his or her\nemployment with the Employer and all of its affiliates for any reason, the Executive shall not,\ndirectly or indirectly, by any means or device whatsoever, for himself or herself or on behalf of,\nor in conjunction with, any other person, partnership or corporation, solicit, entice, hire, or\nattempt to hire or employ any employee of the Employer, the Company, the Bank, Trust Services\nor any of their affiliated entities.\n8. REFORMATION; INJUNCTIVE RELIEF.\n(a) All the parties hereto acknowledge that the parties have carefully considered the\nnature and scope of this Agreement. The activities, period and area covered by Section 7 are\nexpressly acknowledged and agreed to be fair, reasonable and necessary. To the extent that any\ncovenant contained in Section 7 is held to be invalid, illegal or unenforceable because of the\nextent of activities, duration of such covenant, the geographic area covered thereby, or otherwise,\nthe parties agree that the court making such determination shall reform such covenant to include\nas much of its nature and scope as will render it enforceable and, in its reduced form, said\ncovenant shall be valid, legal and enforceable to the fullest extent of the law.\nThe invalidity or unenforceability of any provision of this Agreement, after reformation\nas provided in this Section 8, shall not affect any other provision hereof, and this Agreement\nshall be construed in all respects as if such invalid or unenforceable provision was omitted.\nFurthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added\nautomatically as a part of this Agreement a provision as similar in terms to such illegal, invalid,\nor unenforceable provision as may be possible and be legal, valid, and enforceable.\n(b) The Executive acknowledges and agrees that, upon any breach by the Executive\nof his or her obligations under Section 7 hereof, the Employer will have no adequate remedy at\nlaw, and accordingly will be entitled to specific performance and other appropriate injunctive and\nequitable relief, notwithstanding Section 9 hereof. Nothing herein shall be construed as\nprohibiting the Employer from pursuing any other remedies available to it, including the\nrecovery of damages from the Executive.\n9. MEDIATION AND ARBITRATION.\nIf the Executive and the Employer have any dispute whatsoever relating to the\ninterpretation, validity or performance of this Agreement, or any other dispute arising out of this\nAgreement, every reasonable attempt will be made to resolve any differences or dispute within\nthirty (30) days of an issuance of written notice by either party to the other party.\nIf a successful resolution of any differences or dispute has not been achieved to the\nsatisfaction of both parties at the end of the thirty (30) day period, the following steps will be\nused:\nExcept as otherwise expressly provided hereunder, the parties agree that any and all\ndisputes arising out of the Executive’s employment or cessation of employment, including but\nnot limited to any dispute, controversy, or claim arising under any federal, state, or local statute,\nlaw, ordinance or regulation or under this Agreement, shall be resolved exclusively by\nAlternative Dispute Resolution described in this Agreement ("ADR"). The initiation of ADR\nshall first require mediation, and the parties agree to first try to settle any dispute through\nmediation. Mediation shall be initiated by either party by the serving of a written notice of intent\nto mediate (a "Mediation Notice") by one party upon the other. If no resolution has been\nmutually agreed through mediation within ninety (90) days of service of a Mediation Notice,\nthen and only then may the dispute be submitted to arbitration. Arbitration shall be initiated by\nthe serving of a written notice of intent to arbitrate (an "Arbitration Notice") by one party upon\nthe other. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to preclude\nthe Employer from seeking temporary or permanent injunctive relief and/or damages from a\ncourt of competent jurisdiction pursuant to Section 8 of this Agreement with respect to any\nbreach of Section 7 of this Agreement.\n(a) In the event that a party wishes to initiate ADR, a Mediation Notice must be\nserved on the other party within six months from the date on which the claim arose. If the parties\ncannot mutually agree on a mediator, then a mediator shall be selected in accordance with the\nEmployment Mediation Rules of the American Arbitration Association.\n(b) In the event that mediation is unsuccessful and arbitration is initiated, it shall be\nconducted under the National Rules of the Resolution of Employment Disputes of the American\nArbitration Association. There shall be a single arbitrator to be agreed upon by the parties,\nprovided that, if the parties are unable to agree upon a single arbitrator, each party shall name an\narbitrator and the two so named shall name a third arbitrator. The arbitration proceedings shall\nbe heard by the arbitrator(s) and the decision of the arbitrator, or the majority of the panel if one\nhas been selected, shall be final and binding on the parties. Judgment upon the arbitration award\nmay be entered in any court of competent jurisdiction. An Arbitration Notice must be served on\nthe other party within one year from the date on which the claim arose, and failure to bring such\na claim within such one-year period shall constitute a waiver of such claim and an absolute bar to\nany further proceedings in any forum with respect to it. All mediation and arbitration\nproceedings shall be conducted in Bangor, Maine, unless the parties otherwise agree in writing.\n(©) The cost of any mediation proceeding under this Section 9 shall be paid entirely\nby the Employer. The cost of any arbitration proceeding will be shared equally by the parties to\nthe dispute; provided, however, that, if the dispute is resolved in favor of the Executive, such cost\nshall be paid in full by the Employer. Each party shall be responsible for its own cost of\nrepresentation and counsel.\n10. POST-TERMINATION OBLIGATIONS.\nAll payments and benefits due to the Executive under this Agreement shall be subject to\nthe Executive's compliance with this Section 10 for one full year following the Executive's Date\nof Termination. The Executive shall, upon reasonable notice, furnish such information and\nassistance to the Employer, the Company, the Bank or Trust Services as may reasonably be\nrequired by the Employer, the Company, the Bank or Trust Services in connection with any\nlitigation in which it or any of its subsidiaries or affiliates is, or may become, a party.\n11. GENERAL PROVISIONS.\n(a) All notices required by this Agreement shall be in writing and shall be sufficiently\ngiven if delivered personally or mailed by registered mail or certified mail, return receipt\nrequested, to the parties at their then current addresses. All notices shall be deemed to have been\ngiven as of the date so delivered or mailed.\n(b) This Agreement and the plans and agreements described in Section 5(b) contain\nthe entire transaction between the parties, and there are no other representations, warranties,\nconditions or agreements relating to the subject matter thereof. This Agreement hereby\nsupersedes any prior Change in Control Agreement between the Executive and the Company.\n(©) The waiver by any party of any breach or default of any provision of this\nAgreement shall not operate or be construed as a waiver of any subsequent breach.\n(d) This Agreement may not be changed orally but only by an agreement in writing\nexecuted on behalf of the party against which enforcement of any waiver, change, modification,\nconsent or discharge is sought.\n(e) This Agreement shall be binding upon and inure to the benefit of the Employer\nand the Executive and their respective successors, assigns, heirs and legal representatives\n(including, but not limited to, any successor of the Employer described in Section 6).\nH Each of the parties agrees to execute all further instruments and documents and to\ntake all further action as the other party may reasonably request in order to effectuate the terms\nand purposes of this Agreement.\n(8 This Agreement may be executed in one or more counterparts, all of which taken\ntogether shall constitute one and the same instrument.\n(h) This Agreement shall be construed pursuant to and in accordance with the laws of\nthe State of Maine. Actions brought by the Employer under this Agreement shall be subject to\nthe exclusive jurisdiction of the state and federal courts of Maine. Both parties consent to the\npersonal jurisdiction of such courts for such actions, and agree that they may be served with\nprocess in accordance with Section 11(a). Notwithstanding anything herein to the contrary, any\npayments to the Executive, whether pursuant to this Agreement or otherwise, are subject to and\nconditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, §12\nU.S.C. 1828(k) and any regulations promulgated thereunder.\n1) The Executive acknowledges that he has had a full and complete opportunity to\nreview the terms, enforceability and implications of this Agreement, and that the Employer has\nnot made any representations or warranties to the Executive concerning the terms, enforceability\nand implications of this Agreement other than as are reflected in this Agreement.\nG Any provision of this Agreement that is susceptible to more than one\ninterpretation shall be interpreted in a manner that is consistent with this Agreement satisfying\nthe requirements of Code Section 409A.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first\nabove written.\n \n \nWitness: — COMPANY:\nBAR HARBOR BANKSHARES\n/s/Mark Clapp BY\n/s/Peter Dodge\nPeter Dodge,\nIts Chairman of the Board\nWitness: —  EXECUTIVE:\n/s/William Swales BY\n \n/s/Richard Maltz\n	EX-10 2 bhb8kmaltzhireex101.htm\nEXHIBIT 10.1\nCHANGE IN CONTROL, CONFIDENTIALITY,\nAND NONCOMPETITION AGREEMENT\nTHIS CHANGE IN CONTROL, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT is made and entered into this 10th day of July, 2014 by and between BAR\nHARBOR BANKSHARES, a Maine corporation with its headquarters located in Bar Harbor,\nMaine (hereinafter, "the Company"), and Richard Maltz, a resident of Hampden, Maine\n(hereinafter, "the Executive").\nE S S E T H:\nWHEREAS, Bar Harbor Bank & Trust is a wholly-owned first tier banking subsidiary of\nBar Harbor Bankshares, and Bar Harbor Trust Services is a second tier non-depository trust\ncompany subsidiary of Bar Harbor Bankshares; and\nWHEREAS, the Executive is an employee of the Employer; and\nWHEREAS, the Employer wishes to retain the services of the Executive by providing the\nassurances contained herein.\nNOW, THEREFORE, the parties hereto do hereby agree as follows:\n1.\nDEFINTIONS.\n1.1.\nBank shall mean Bar Harbor Bank & Trust.\n1.2. Base Compensation shall mean the annual base salary payable by the Employer to\nthe Executive, excluding any bonuses, incentive compensation and other forms of additional\ncompensation.\n1.3 Cause shall be deemed to exist only in the event the Executive is convicted by a\ncourt of competent jurisdiction of a felony involving dishonesty or fraud on the part of the\nExecutive in his or her relationship with the Employer.\n1.4. Change in Control shall mean the occurrence of any one of the following events:\n(a)\nAny person, including a group (as such term is used in Section 13(d) of\nthe Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the\nbeneficial owner (as determined pursuant to Rule 13d-3 under the Exchange Act),\ndirectly or indirectly, of securities of Bar Harbor Bankshares representing more than fifty\npercent (50%) of the combined voting power of Bar Harbor Bankshares' then outstanding\nsecurities, other than as a result of an issuance of securities initiated by Bar Harbor\nBankshares in the ordinary course of its business; or\n(b)\nBar Harbor Bankshares is party to a Business Combination (as hereinafter\ndefined) unless, following consummation of the Business Combination, more than fifty\npercent (50%) of the outstanding voting securities of the resulting entity are beneficially\nowned, directly or indirectly, by the holders of Bar Harbor Bankshares' outstanding\nvoting securities immediately prior to the Business Combination in substantially the same\nproportions as those existing immediately prior to the Business Combination; or\n(c) The stockholders of Bar Harbor Bankshares approve a plan of complete\nliquidation of Bar Harbor Bankshares or an agreement for the sale or disposition by Bar\nHarbor Bankshares of all or substantially all of Bar Harbor Bankshares' assets to another\nperson or entity that is not a wholly owned subsidiary of Bar Harbor Bankshares.\nFor purposes of this Section 1.4, a Business Combination means any cash tender or\nexchange offer, merger or other business combination, sale of stock, or sale of all or substantially\nall of the assets, or any combination of the foregoing transactions.\nFor purposes of this Section 1.4, a Change in Control shall exclude any internal corporate\nchange, reorganization or other such event, which occurred prior to or may occur following the\ndate of this Agreement.\n1.5. Code shall mean the Internal Revenue Code of 1986, as amended, and as it may\nbe amended from time to time, together with the rules and regulations promulgated under such\ncode.\n1.6.\nCompany shall mean Bar Harbor Bankshares.\n1.7.\nDate of Termination shall mean:\n(a)\nIf the Executive incurs a separation from service for Disability, thirty (30)\ndays after Notice of Termination for Disability is given by the Employer to the Executive\nand the Executive shall not have returned to the performance of his duties on a full-time\nbasis during such thirty (30) day period;\n(b) If the Executive's service is separated by the Employer for Cause or by the\nExecutive for Good Reason, the date on which the Executive separates from service with\nthe Employer; and\n(c)\nIf the Executive incurs a separation from service for any other reason, the\ndate on which the Executive incurs a separation from service with the Employer.\nWhether the Executive has incurred a separation from service is determined based on\nwhether the facts and circumstances indicate that the Employer and the Executive reasonably\nanticipated that no further services would be performed after a certain date.\n1.8.\nDisability shall mean a condition: (a) which causes the Executive to be unable\nto\nengage in any substantial gainful activity by reason of any medically determinable physical or\nmental impairment which can be expected to result in death or which can be expected to last for\na continuous period of not less than twelve months; or (b) which results in the Executive\nreceiving, by reason of any medically determinable physical or mental impairment which can be\nexpected to result in death or which can be expected to last for a continuous period of not less\nthan twelve months, income replacement benefits for a period of not less than three months\nunder an accident and health plan covering employees of the Employer. Disability shall be\ndeemed to exist only when the disability has been certified to the Board of Directors of the\nCompany by a licensed physician approved by the Board of Directors of the Company.\n1.9. Employer shall mean the Company, the Bank or Trust Services (whichever entity\nis the employer of the Executive).\n1.10. Exemption Amount shall mean two times the lesser of: (a) the Executive's\nannualized compensation based on the Executive's annual rate of pay for the calendar year\npreceding the calendar year in which the Date of Termination occurs; or (b) the limitation on\ncompensation set forth in Code Section 401(a)(17) for the calendar year in which the Date of\nTermination occurs.\n1.11. Good Reason shall mean one or more of the following events arising without the\nconsent of the Executive:\n(a)\na material diminution in the Executive's Base Compensation;\n(b)\na material diminution in the Executive's authority, duties or\nresponsibilities;\n(c)\na material diminution in the authority, duties or responsibilities of the\nperson to whom the Executive is required to report;\n(d)\na material diminution in the budget over which the Executive retains\nauthority;\n(e)\na material change in the geographic location at which the Executive must\nperform his services; or\n(f)\nany other action or inaction that constitutes a material breach by the\nCompany of the Agreement or any other agreement under which the Executive provides\nservices.\nIn order for a separation from service to occur for Good Reason, the separation from\nservice must occur within two years following the initial existence of the event constituting Good\nReason.\n1.12. Key Employee shall mean an employee who is: (a) an officer of the Company,\nthe Bank or Trust Services whose earnings from the Company, the Bank and Trust Services\nexceed $145,000 (as adjusted under Code Section 416(i)(1) for calendar years beginning after\nDecember 31, 2007); (b) an owner of more than a five percent (5%) interest in the Company, the\nBank or Trust Services; or (c) an owner of more than a one percent (1%) interest in the\nCompany, the Bank or Trust Services whose earnings from the Company, the Bank and Trust\nServices exceed $150,000.\n1.13. Notice of Termination shall mean the notice provided pursuant to Section 3.\n1.14. Trust Services shall mean Bar Harbor Trust Services.\n2.\nSEVERANCE BENEFITS.\nIn the event that: (a) the Employer separates the Executive's service other than as a result of\nDisability and other than for Cause, or the Executive separates his or her service for Good Reason; and (b) the\nExecutive's separation from service occurs in anticipation of or within one year after a Change in Control, then the\nEmployer shall pay the Executive the severance benefits described in this Section 2. The Executive's separation\nfrom service shall be deemed to be in anticipation of a Change in Control if it occurs within the twelve (12) month\nperiod prior to the occurrence of the Change in Control. Notwithstanding the foregoing, if the payment of the\nseverance benefits would result in an excess parachute payment as defined under Code Section 280G, then the\namount of the severance benefits to be paid to the Executive shall be reduced to an amount equal to the maximum\ndollar amount that can be paid to the executive without causing the payment of an excess parachute payment.\nThe severance benefits described in this Section 2 shall equal the following:\n(a)\nThe Executive shall receive a severance payment equal to 1.0 times the\nExecutive's Base Compensation determined as of the Date of Termination.\n(i)\nSubject to the provisions of Section 2(a)(ii), the Executive's severance\npayment shall be paid in lump sum on the first day of the month following the Executive's Date of\nTermination, less any applicable tax withholdings.\n(ii) Notwithstanding the provisions of Section 2(a)(i), if the Executive\nis a Key Employee on the Executive's Date of Termination and any portion of the\nseverance payment is greater than the Exemption Amount and not eligible for any\nother exemption from Section 409A of the Code then such portion of the\nseverance payment shall be paid in a lump sum on the first day of the seventh\nmonth following the Executive's Date of Termination.\n(b)\nThe Executive and his or her dependents shall continue to be eligible to\nreceive the same medical, health, dental, vision, and life insurance benefits which the\nExecutive is eligible to receive on the Date of Termination. The Executive shall be\nrequired to make the same premium contributions that he or she was required to make\nimmediately prior to the Date of Termination. The ability of the Executive and his or her\ndependents to receive such benefits shall continue until the twelve month anniversary of\nthe Executive's Date of Termination.\n(c)\nIn the event of a Change in Control, all stock options granted but\nunexercised under the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option\nPlan of 2000, The Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of\n2009, or any other equity plan shall become 100% vested immediately prior to such\nChange in Control. These grants will remain subject to all of the other terms and\nconditions in the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option Plan\nof 2000, the Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of 2009, or\nany other equity plan.\nThe Executive shall not be required to mitigate the amount of any severance benefits\ndescribed in this Section 2 by seeking other employment.\n3.\nNOTICE OF TERMINATION\nAny separation of the Executive's service by the Employer due to Disability or for Cause,\nor by the Executive due to Good Reason, shall be communicated by written Notice of\nTermination to the other party. A Notice of Termination must indicate the specific provisions in\nthis Agreement which are relied upon as the basis for the separation of the Executive's service,\nand must also set forth in reasonable detail the facts and circumstances claimed to provide the\nbasis for such separation from service under the provisions so indicated.\nNotwithstanding the above, in order for the Executive to separate from service with the\nEmployer for Good Reason, the Executive must provide the Notice of Termination to the\nEmployer no later than ninety (90) days after the date of the initial occurrence of the condition or\nconditions alleged to give rise to Good Reason. In addition, the Executive must provide the\nEmployer a period of at least thirty (30) days during which the Employer can remedy the\ncondition or conditions alleged to give rise to Good Reason and not be required to pay the\namounts described in Section 2.\n4.\nLOSS OF SEVERANCE BENEFITS.\nIf the Employer shall terminate the Executive's service due to Disability or for Cause, or\nif the Executive shall terminate his or her service other than for Good Reason, or if the Executive\nshall die, then the Executive shall have no right to receive any severance benefits under this\nAgreement.\n5.\nNO OTHER BENEFITS PAYABLE.\n(a)\nIf the Executive is entitled to receive the severance benefits described in Section\n2 of this Agreement, he or she shall not be entitled to receive: (i) any severance benefits under\nthe terms of any general severance pay policy or plan of the Employer or any successor\ncompany; or (ii) any other compensation, benefits or payments under the terms of any other plan\nof, or agreement with, the Employer.\n(b)\nNotwithstanding the above, the Executive shall be entitled to receive\nany\ncompensation, benefits or payments which are specifically authorized by the terms of any plan\nof,\nor agreement with, the Employer to be paid in addition to the severance benefits described in\nSection 2 of this Agreement. Moreover, notwithstanding the above, the Executive shall be\nentitled to receive, in addition to the severance benefits described in Section 2 of this Agreement,\nany compensation, benefits or payments which the Executive is entitled to receive under: (i) any\nincentive compensation plan maintained by the Employer which provides for payment to a\nseparated employee of incentive compensation earned by the employee prior to his or her\nseparation from service; or (ii) any payroll plan or policy of the Employer which provides for\npayment to a separated employee of any unpaid vacation, holiday or sick pay accrued by the\nemployee prior to his or her separation from service.\n6.\nSUCCESSORS.\n(a) The Employer will require any successor (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise) to all or substantially all of the business and/or assets of the\nEmployer to expressly assume and agree to perform its obligations under this Agreement in the\nsame manner and to the same extent that the Employer would be required to perform them if no\nsuch succession had taken place. Each such successor shall execute a written agreement\nevidencing its assumption of the Employer's obligations under this Agreement prior to the\neffective date of any such purchase, merger, consolidation or other transaction.\n(b) The failure of the Employer to obtain from each successor the written agreement\ndescribed in Section 6(a) shall be deemed to be a material breach of the obligations of the\nEmployer under this Agreement, and shall entitle the Executive to incur a separation from\nservice for Good Reason pursuant to Section 1.11(f).\n(c)\nAs used in this Section 6, the Employer shall include the Company, the Bank,\nTrust Services and any successor to all or substantially all of the business and/or assets of any of\nthem (whether direct or indirect, by purchase, merger, consolidation or otherwise) which\nexecutes and delivers the written agreement described in Section 6(a) or which otherwise\nbecomes bound by all the terms and provisions of this Agreement.\n7.\nCONFIDENTIAL INFORMATION, NON-COMPETITION OBLIGATIONS, AND\nNON-SOLICITATION.\n(a)\nConfidential Information\nThe Executive recognizes and acknowledges that certain assets of the Employer, the\nCompany, the Bank, Trust Services, or any of their affiliates or subsidiaries constitutes\nConfidential Information.\nFor purposes hereof, the term "Confidential Information" means any and all information\nand compilations of information, in whatever form or medium (including any copies thereof),\nrelating to any part of the business of the Employer, the Company, the Bank, Trust Services or\nany of their subsidiaries or affiliates, or the business of their customers, provided to the\nExecutive, or which the Executive obtained or compiled or had obtained or compiled on his or\nher behalf, which information or compilations of information are not a matter of public record or\ngenerally known to the public, including without limitation:\n(i)\nfinancial information regarding the Employer, the Company, the Bank,\nTrust Services or any of their subsidiaries or affiliates;\n(ii) personnel data, including compensation arrangements relating to the\nExecutive or any other employees of the Employer, the Company, the Bank, Trust\nServices, or any of their subsidiaries or affiliates;\n(iii) internal plans, practices, and procedures of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(iv) the names, portfolio information, investment strategies, requirements,\nlending or deposit information, or any similar information of any customers, clients, or\nprospects of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates;\n(v) business methods and marketing strategies of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(vi) any other information expressly deemed confidential by the officers and\ndirectors of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates; and\n(vii) the terms and conditions of the Agreement and any documents or\ninstruments executed in connection herewith that are not of public record.\nThe Executive shall not, without the prior written consent of the Employer, the Company,\nthe\nBank, Trust Services, or any of their subsidiaries or affiliates, use or disclose, or negligently\npermit any unauthorized person to use, disclose, or gain access to, any Confidential Information.\nUpon termination of employment, the Executive hereby agrees to deliver promptly to the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates all\nmemoranda, notes, records, manuals, or other documents, including all copies of such materials,\ncontaining Confidential Information, whether made or compiled by the Executive or furnished to\nhim or her from any source by virtue of the Executive's relationship with the Employer, the\nCompany, the Bank, Trust Services, or any of their subsidiaries or affiliates.\nRegardless of the reason for his or her cessation of employment, the Executive will\nfurnish such information as may be in the Executive's possession and cooperate with the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates\nas\nmay reasonably be requested in connection with any claims or legal actions in which the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates are or\nmay become a party. The Employer will reimburse the Executive for any reasonable out-of-\npocket expenses the Executive incurs in order to satisfy his or her obligations under this clause.\n(b)\nNon-Competition Obligations\nIn consideration of the covenants of the Employer contained herein, the Executive\ncovenants and agrees with the Employer that, during the "Non-Compete Period" (as hereinafter\ndefined) and within a one hundred fifty (150) "air" mile radius from Bar Harbor, Maine, the\nExecutive shall not without specific approval, directly or indirectly:\n(i)\nadvise any past, present, or future customers of the Employer to withdraw,\ncurtail, or cancel his or her or its business with the Employer; or\n(ii)\ncause, suggest, or induce others to call on any past, present, or future\ncustomers of the Employer.\nThe "Non-Compete Period" shall commence on the date hereof and terminate one year\nafter the cessation of the Executive's employment with the Employer and all of its affiliates,\nregardless of reason, whether or not pursuant to this Agreement.\n(c)\nNon-Solicitation of Employees\nWhile employed by the Employer, and for one year following cessation of his or her\nemployment with the Employer and all of its affiliates for any reason, the Executive shall not,\ndirectly or indirectly, by any means or device whatsoever, for himself or herself or on behalf of,\nor in conjunction with, any other person, partnership or corporation, solicit, entice, hire, or\nattempt to hire or employ any employee of the Employer, the Company, the Bank, Trust Services\nor any of their affiliated entities.\n8.\nREFORMATION; INJUNCTIVE RELIEE.\n(a)\nAll the parties hereto acknowledge that the parties have carefully considered the\nnature and scope of this Agreement. The activities, period and area covered by Section 7 are\nexpressly acknowledged and agreed to be fair, reasonable and necessary. To the extent that any\ncovenant contained in Section 7 is held to be invalid, illegal or unenforceable because of the\nextent of activities, duration of such covenant, the geographic area covered thereby, or otherwise,\nthe parties agree that the court making such determination shall reform such covenant to include\nas much of its nature and scope as will render it enforceable and, in its reduced form, said\ncovenant shall be valid, legal and enforceable to the fullest extent of the law.\nThe invalidity or unenforceability of any provision of this Agreement, after reformation\nas provided in this Section 8, shall not affect any other provision hereof, and this Agreement\nshall be construed in all respects as if such invalid or unenforceable provision was omitted.\nFurthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added\nautomatically as a part of this Agreement a provision as similar in terms to such illegal, invalid,\nor unenforceable provision as may be possible and be legal, valid, and enforceable.\n(b) The Executive acknowledges and agrees that, upon any breach by the Executive\nof his or her obligations under Section 7 hereof, the Employer will have no adequate remedy at\nlaw, and accordingly will be entitled to specific performance and other appropriate injunctive and\nequitable relief, notwithstanding Section 9 hereof. Nothing herein shall be construed as\nprohibiting the Employer from pursuing any other remedies available to it, including the\nrecovery of damages from the Executive.\n9.\nMEDIATION AND ARBITRATION.\nIf the Executive and the Employer have any dispute whatsoever relating to the\ninterpretation, validity or performance of this Agreement, or any other dispute arising out of this\nAgreement, every reasonable attempt will be made to resolve any differences or dispute within\nthirty (30) days of an issuance of written notice by either party to the other party.\nIf a successful resolution of any differences or dispute has not been achieved to the\nsatisfaction of both parties at the end of the thirty (30) day period, the following steps will be\nused:\nExcept as otherwise expressly provided hereunder, the parties agree that any and all\ndisputes arising out of the Executive's employment or cessation of employment, including but\nnot limited to any dispute, controversy, or claim arising under any federal, state, or local statute,\nlaw, ordinance or regulation or under this Agreement, shall be resolved exclusively by\nAlternative Dispute Resolution described in this Agreement ("ADR"). The initiation of ADR\nshall first require mediation, and the parties agree to first try to settle any dispute through\nmediation. Mediation shall be initiated by either party by the serving of a written notice of intent\nto mediate (a "Mediation Notice") by one party upon the other. If no resolution has been\nmutually agreed through mediation within ninety (90) days of service of a Mediation Notice,\nthen and only then may the dispute be submitted to arbitration. Arbitration shall be initiated by\nthe serving of a written notice of intent to arbitrate (an "Arbitration Notice") by one party upon\nthe other. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to preclude\nthe Employer from seeking temporary or permanent injunctive relief and/or damages from a\ncourt of competent jurisdiction pursuant to Section 8 of this Agreement with respect to any\nbreach of Section 7 of this Agreement.\n(a) In the event that a party wishes to initiate ADR, a Mediation Notice must be\nserved on the other party within six months from the date on which the claim arose. If the parties\ncannot mutually agree on a mediator, then a mediator shall be selected in accordance with the\nEmployment Mediation Rules of the American Arbitration Association.\n(b) In the event that mediation is unsuccessful and arbitration is initiated, it shall be\nconducted under the National Rules of the Resolution of Employment Disputes of the American\nArbitration Association. There shall be a single arbitrator to be agreed upon by the parties,\nprovided that, if the parties are unable to agree upon a single arbitrator, each party shall name an\narbitrator and the two so named shall name a third arbitrator. The arbitration proceedings shall\nbe heard by the arbitrator(s) and the decision of the arbitrator, or the majority of the panel if one\nhas been selected, shall be final and binding on the parties. Judgment upon the arbitration award\nmay be entered in any court of competent jurisdiction. An Arbitration Notice must be served on\nthe other party within one year from the date on which the claim arose, and failure to bring such\na claim within such one-year period shall constitute a waiver of such claim and an absolute bar to\nany further proceedings in any forum with respect to it. All mediation and arbitration\nproceedings shall be conducted in Bangor, Maine, unless the parties otherwise agree in writing.\n(c)\nThe cost of any mediation proceeding under this Section 9 shall be paid entirely\nby the Employer. The cost of any arbitration proceeding will be shared equally by the parties to\nthe dispute; provided, however, that, if the dispute is resolved in favor of the Executive, such cost\nshall be paid in full by the Employer. Each party shall be responsible for its own cost of\nrepresentation and counsel.\n10.\nPOST-TERMINATION OBLIGATIONS.\nAll payments and benefits due to the Executive under this Agreement shall be subject to\nthe Executive's compliance with this Section 10 for one full year following the Executive's Date\nof Termination. The Executive shall, upon reasonable notice, furnish such information and\nassistance to the Employer, the Company, the Bank or Trust Services as may reasonably be\nrequired by the Employer, the Company, the Bank or Trust Services in connection with any\nlitigation in which it or any of its subsidiaries or affiliates is, or may become, a party.\n11.\nGENERAL PROVISIONS.\n(a) All notices required by this Agreement shall be in writing and shall be sufficiently\ngiven if delivered personally or mailed by registered mail or certified mail, return receipt\nrequested, to the parties at their then current addresses. All notices shall be deemed to have been\ngiven as of the date so delivered or mailed.\n(b)\nThis Agreement and the plans and agreements described in Section 5(b) contain\nthe entire transaction between the parties, and there are no other representations, warranties,\nconditions or agreements relating to the subject matter thereof. This Agreement hereby\nsupersedes any prior Change in Control Agreement between the Executive and the Company.\n(c)\nThe waiver by any party of any breach or default of any provision of this\nAgreement shall not operate or be construed as a waiver of any subsequent breach.\n(d)\nThis Agreement may not be changed orally but only by an agreement in writing\nexecuted on behalf of the party against which enforcement of any waiver, change, modification,\nconsent or discharge is sought.\n(e)\nThis Agreement shall be binding upon and inure to the benefit of the Employer\nand the Executive and their respective successors, assigns, heirs and legal representatives\n(including, but not limited to, any successor of the Employer described in Section 6).\n(f)\nEach of the parties agrees to execute all further instruments and documents and to\ntake all further action as the other party may reasonably request in order to effectuate the terms\nand purposes of this Agreement.\n(g)\nThis Agreement may be executed in one or more counterparts, all of which taken\ntogether shall constitute one and the same instrument.\n(h)\nThis Agreement shall be construed pursuant to and in accordance with the laws of\nthe State of Maine. Actions brought by the Employer under this Agreement shall be subject to\nthe exclusive jurisdiction of the state and federal courts of Maine. Both parties consent to the\npersonal jurisdiction of such courts for such actions, and agree that they may be served with\nprocess in accordance with Section 11(a). Notwithstanding anything herein to the contrary, any\npayments to the Executive, whether pursuant to this Agreement or otherwise, are subject to and\nconditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, $12\nU.S.C. 1828(k) and any regulations promulgated thereunder.\n(i)\nThe Executive acknowledges that he has had a full and complete opportunity to\nreview the terms, enforceability and implications of this Agreement, and that the Employer has\nnot made any representations or warranties to the Executive concerning the terms, enforceability\nand implications of this Agreement other than as are reflected in this Agreement.\n(j)\nAny provision of this Agreement that is susceptible to more than one\ninterpretation shall be interpreted in a manner that is consistent with this Agreement satisfying\nthe requirements of Code Section 409A.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first\nabove written.\nWitness: COMPANY:\nBAR HARBOR BANKSHARES\n/s/Mark Clapp\nBY\n/s/Peter Dodge\nPeter Dodge,\nPeter-Dedge,\nIts Chairman of the Board\nWitness:\nEXECUTIVE:\n/s/William Swales\nBY\n/s/Richard Maltz	EX-10 2 bhb8kmaltzhireex101.htm\nEXHIBIT 10.1\nCHANGE IN CONTROL, CONFIDENTIALITY,\nAND NONCOMPETITION AGREEMENT\nTHIS CHANGE IN CONTROL, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT is made and entered into this 10th day of July, 2014 by and between BAR\nHARBOR BANKSHARES, a Maine corporation with its headquarters located in Bar Harbor,\nMaine (hereinafter, “the Company”), and Richard Maltz, a resident of Hampden, , Maine\n(hereinafter, “the Executive").\nWITNESSETH:\nWHEREAS, Bar Harbor Bank & Trust is a wholly-owned first tier banking subsidiary of\nBar Harbor Bankshares, and Bar Harbor Trust Services is a second tier non-depository trust\ncompany subsidiary of Bar Harbor Bankshares; and\nWHEREAS, the Executive is an employee of the Employer; and\nWHEREAS, the Employer wishes to retain the services of the Executive by providing the\nassurances contained herein.\nNOW, THEREFORE, the parties hereto do hereby agree as follows:\n1.\nDEFINTIONS.\n1.1. Bank shall mean Bar Harbor Bank & Trust.\n1.2. Base Compensation shall mean the annual base salary payable by the Employer to\nthe Executive, excluding any bonuses, incentive compensation and other forms of additional\ncompensation.\n1.3 Cause shall be deemed to exist only in the event the Executive is convicted by a\ncourt of competent jurisdiction of a felony involving dishonesty or fraud on the part of the\nExecutive in his or her relationship with the Employer.\n1.4. Change in Control shall mean the occurrence of any one of the following events:\n(a) Any person, including a group (as such term is used in Section 13(d) of\nthe Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the\nbeneficial owner (as determined pursuant to Rule 13d-3 under the Exchange Act),\ndirectly or indirectly, of securities of Bar Harbor Bankshares representing more than fifty\npercent (50%) of the combined voting power of Bar Harbor Bankshares' then outstanding\nsecurities, other than as a result of an issuance of securities initiated by Bar Harbor\nBankshares in the ordinary course of its business; or\n(b) Bar Harbor Bankshares is party to a Business Combination (as hereinafter\ndefined) unless, following consummation of the Business Combination, more than fifty\npercent (50%) of the outstanding voting securities of the resulting entity are beneficially\nowned, directly or indirectly, by the holders of Bar Harbor Bankshares' outstanding\nvoting securities immediately prior to the Business Combination in substantially the same\nproportions as those existing immediately prior to the Business Combination; or\n(c) The stockholders of Bar Harbor Bankshares approve a plan of complete\nliquidation of Bar Harbor Bankshares or an agreement for the sale or disposition by Bar\nHarbor Bankshares of all or substantially all of Bar Harbor Bankshares' assets to another\nperson or entity that is not a wholly owned subsidiary of Bar Harbor Bankshares.\nFor purposes of this Section 1.4, a Business Combination means any cash tender or\nexchange offer, merger or other business combination, sale of stock, or sale of all or substantially\nall of the assets, or any combination of the foregoing transactions.\nFor purposes of this Section 1.4, a Change in Control shall exclude any internal corporate\nchange, reorganization or other such event, which occurred prior to or may occur following the\ndate of this Agreement.\n1.5. Code shall mean the Internal Revenue Code of 1986, as amended, and as it may\nbe amended from time to time, together with the rules and regulations promulgated under such\ncode.\n1.6. Company shall mean Bar Harbor Bankshares.\n1.7. Date of Termination shall mean:\n(a) If the Executive incurs a separation from service for Disability, thirty (30)\ndays after Notice of Termination for Disability is given by the Employer to the Executive\nand the Executive shall not have returned to the performance of his duties on a full-time\nbasis during such thirty (30) day period;\n(b) If the Executive's service is separated by the Employer for Cause or by the\nExecutive for Good Reason, the date on which the Executive separates from service with\nthe Employer; and\n(c) If the Executive incurs a separation from service for any other reason, the\ndate on which the Executive incurs a separation from service with the Employer.\nWhether the Executive has incurred a separation from service is determined based on\nwhether the facts and circumstances indicate that the Employer and the Executive reasonably\nanticipated that no further services would be performed after a certain date.\n1.8. Disability shall mean a condition: (a) which causes the Executive to be unable to\nengage in any substantial gainful activity by reason of any medically determinable physical or\nmental impairment which can be expected to result in death or which can be expected to last for\na continuous period of not less than twelve months; or (b) which results in the Executive\nreceiving, by reason of any medically determinable physical or mental impairment which can be\nexpected to result in death or which can be expected to last for a continuous period of not less\nthan twelve months, income replacement benefits for a period of not less than three months\nunder an accident and health plan covering employees of the Employer. Disability shall be\ndeemed to exist only when the disability has been certified to the Board of Directors of the\nCompany by a licensed physician approved by the Board of Directors of the Company.\n1.9. Employer shall mean the Company, the Bank or Trust Services (whichever entity\nis the employer of the Executive).\n1.10. Exemption Amount shall mean two times the lesser of: (a) the Executive’s\nannualized compensation based on the Executive’s annual rate of pay for the calendar year\npreceding the calendar year in which the Date of Termination occurs; or (b) the limitation on\ncompensation set forth in Code Section 401(a)(17) for the calendar year in which the Date of\nTermination occurs.\n1.11. Good Reason shall mean one or more of the following events arising without the\nconsent of the Executive:\n(a)\na material diminution in the Executive’s Base Compensation;\n(b) a material diminution in the Executive’s authority, duties or\nresponsibilities;\n(c)\na material diminution in the authority, duties or responsibilities of the\nperson to whom the Executive is required to report;\n(d) a material diminution in the budget over which the Executive retains\nauthority;\n(e)\na material change in the geographic location at which the Executive must\nperform his services; or\n(f)\nany other action or inaction that constitutes a material breach by the\nCompany of the Agreement or any other agreement under which the Executive provides\nservices.\nIn order for a separation from service to occur for Good Reason, the separation from\nservice must occur within two years following the initial existence of the event constituting Good\nReason.\n1.12. Key Employee shall mean an employee who is: (a) an officer of the Company,\nthe Bank or Trust Services whose earnings from the Company, the Bank and Trust Services\nexceed $145,000 (as adjusted under Code Section 416(i)(1) for calendar years beginning after\nDecember 31, 2007); (b) an owner of more than a five percent (5%) interest in the Company, the\nBank or Trust Services; or (c) an owner of more than a one percent (1%) interest in the\nCompany, the Bank or Trust Services whose earnings from the Company, the Bank and Trust\nServices exceed $150,000.\n1.13. Notice of Termination shall mean the notice provided pursuant to Section 3.\n1.14. Trust Services shall mean Bar Harbor Trust Services.\n2.\nSEVERANCE BENEFITS.\nIn the event that: (a) the Employer separates the Executive's service other than as a result of\nDisability and other than for Cause, or the Executive separates his or her service for Good Reason; and (b) the\nExecutive's separation from service occurs in anticipation of or within one year after a Change in Control, then the\nEmployer shall pay the Executive the severance benefits described in this Section 2. The Executive's separation\nfrom service shall be deemed to be in anticipation of a Change in Control if it occurs within the twelve (12) month\nperiod prior to the occurrence of the Change in Control. Notwithstanding the foregoing, if the payment of the\nseverance benefits would result in an excess parachute payment as defined under Code Section 280G, then the\namount of the severance benefits to be paid to the Executive shall be reduced to an amount equal to the maximum\ndollar amount that can be paid to the executive without causing the payment of an excess parachute payment.\nThe severance benefits described in this Section 2 shall equal the following:\n(a) The Executive shall receive a severance payment equal to 1.0 times the\nExecutive’s Base Compensation, determined as of the Date of Termination.\n(i)\nSubject to the provisions of Section 2(a)(ii), the Executive’s severance\npayment shall be paid in lump sum on the first day of the month following the Executive’s Date of\nTermination, less any applicable tax withholdings.\n(ii) Notwithstanding the provisions of Section 2(a)(i), if the Executive\nis a Key Employee on the Executive’s Date of Termination and any portion of the\nseverance payment is greater than the Exemption Amount and not eligible for any\nother exemption from Section 409A of the Code , then such portion of the\nseverance payment shall be paid in a lump sum on the first day of the seventh\nmonth following the Executive’s Date of Termination.\n(b) The Executive and his or her dependents shall continue to be eligible to\nreceive the same medical, health, dental, vision, and life insurance benefits which the\nExecutive is eligible to receive on the Date of Termination. The Executive shall be\nrequired to make the same premium contributions that he or she was required to make\nimmediately prior to the Date of Termination. The ability of the Executive and his or her\ndependents to receive such benefits shall continue until the twelve month anniversary of\nthe Executive’s Date of Termination.\n(c) In the event of a Change in Control, all stock options granted but\nunexercised under the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option\nPlan of 2000, The Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of\n2009, or any other equity plan shall become 100% vested immediately prior to such\nChange in Control. These grants will remain subject to all of the other terms and\nconditions in the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option Plan\nof 2000, the Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of 2009, or\nany other equity plan.\nThe Executive shall not be required to mitigate the amount of any severance benefits\ndescribed in this Section 2 by seeking other employment.\n3. NOTICE OF TERMINATION.\nAny separation of the Executive's service by the Employer due to Disability or for Cause,\nor by the Executive due to Good Reason, shall be communicated by written Notice of\nTermination to the other party. A Notice of Termination must indicate the specific provisions in\nthis Agreement which are relied upon as the basis for the separation of the Executive's service,\nand must also set forth in reasonable detail the facts and circumstances claimed to provide the\nbasis for such separation from service under the provisions so indicated.\nNotwithstanding the above, in order for the Executive to separate from service with the\nEmployer for Good Reason, the Executive must provide the Notice of Termination to the\nEmployer no later than ninety (90) days after the date of the initial occurrence of the condition or\nconditions alleged to give rise to Good Reason. In addition, the Executive must provide the\nEmployer a period of at least thirty (30) days during which the Employer can remedy the\ncondition or conditions alleged to give rise to Good Reason and not be required to pay the\namounts described in Section 2.\n4.\nLOSS OF SEVERANCE BENEFITS.\nIf the Employer shall terminate the Executive's service due to Disability or for Cause, or\nif the Executive shall terminate his or her service other than for Good Reason, or if the Executive\nshall die, then the Executive shall have no right to receive any severance benefits under this\nAgreement.\n5.\nNO OTHER BENEFITS PAYABLE.\n(a) If the Executive is entitled to receive the severance benefits described in Section\n2 of this Agreement, he or she shall not be entitled to receive: (i) any severance benefits under\nthe terms of any general severance pay policy or plan of the Employer or any successor\ncompany; or (ii) any other compensation, benefits or payments under the terms of any other plan\nof, or agreement with, the Employer.\n(b) Notwithstanding the above, the Executive shall be entitled to receive any\ncompensation, benefits or payments which are specifically authorized by the terms of any plan\nof, or agreement with, the Employer to be paid in addition to the severance benefits described in\nSection 2 of this Agreement. Moreover, notwithstanding the above, the Executive shall be\nentitled to receive, in addition to the severance benefits described in Section 2 of this Agreement,\nany compensation, benefits or payments which the Executive is entitled to receive under: (i) any\nincentive compensation plan maintained by the Employer which provides for payment to a\nseparated employee of incentive compensation earned by the employee prior to his or her\nseparation from service; or (ii) any payroll plan or policy of the Employer which provides for\npayment to a separated employee of any unpaid vacation, holiday or sick pay accrued by the\nemployee prior to his or her separation from service.\n6.\nSUCCESSORS.\n(a) The Employer will require any successor (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise) to all or substantially all of the business and/or assets of the\nEmployer to expressly assume and agree to perform its obligations under this Agreement in the\nsame manner and to the same extent that the Employer would be required to perform them if no\nsuch succession had taken place. Each such successor shall execute a written agreement\nevidencing its assumption of the Employer's obligations under this Agreement prior to the\neffective date of any such purchase, merger, consolidation or other transaction.\n(b) The failure of the Employer to obtain from each successor the written agreement\ndescribed in Section 6(a) shall be deemed to be a material breach of the obligations of the\nEmployer under this Agreement, and shall entitle the Executive to incur a separation from\nservice for Good Reason pursuant to Section 1.11(f).\n(c) As used in this Section 6, the Employer shall include the Company, the Bank,\nTrust Services and any successor to all or substantially all of the business and/or assets of any of\nthem (whether direct or indirect, by purchase, merger, consolidation or otherwise) which\nexecutes and delivers the written agreement described in Section 6(a) or which otherwise\nbecomes bound by all the terms and provisions of this Agreement.\n7.\nCONFIDENTIAL INFORMATION, NON-COMPETITION OBLIGATIONS, AND\nNON-SOLICITATION.\n(a) Confidential Information\nThe Executive recognizes and acknowledges that certain assets of the Employer, the\nCompany, the Bank, Trust Services, or any of their affiliates or subsidiaries constitutes\nConfidential Information.\nFor purposes hereof, the term "Confidential Information" means any and all information\nand compilations of information, in whatever form or medium (including any copies thereof),\nrelating to any part of the business of the Employer, the Company, the Bank, Trust Services or\nany of their subsidiaries or affiliates, or the business of their customers, provided to the\nExecutive, or which the Executive obtained or compiled or had obtained or compiled on his or\nher behalf, which information or compilations of information are not a matter of public record or\ngenerally known to the public, including without limitation:\n(i)\nfinancial information regarding the Employer, the Company, the Bank,\nTrust Services or any of their subsidiaries or affiliates;\n(ii) personnel data, including compensation arrangements relating to the\nExecutive or any other employees of the Employer, the Company, the Bank, Trust\nServices, or any of their subsidiaries or affiliates;\n(iii) internal plans, practices, and procedures of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(iv)\nthe names, portfolio information, investment strategies, requirements,\nlending or deposit information, or any similar information of any customers, clients, or\nprospects of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates;\n(v) business methods and marketing strategies of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(vi) any other information expressly deemed confidential by the officers and\ndirectors of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates; and\n(vii) the terms and conditions of the Agreement and any documents or\ninstruments executed in connection herewith that are not of public record.\nThe Executive shall not, without the prior written consent of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates, use or disclose, or negligently\npermit any unauthorized person to use, disclose, or gain access to, any Confidential Information.\nUpon termination of employment, the Executive hereby agrees to deliver promptly to the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates all\nmemoranda, notes, records, manuals, or other documents, including all copies of such materials,\ncontaining Confidential Information, whether made or compiled by the Executive or furnished to\nhim or her from any source by virtue of the Executive’s relationship with the Employer, the\nCompany, the Bank, Trust Services, or any of their subsidiaries or affiliates.\nRegardless of the reason for his or her cessation of employment, the Executive will\nfurnish such information as may be in the Executive’s possession and cooperate with the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates as\nmay reasonably be requested in connection with any claims or legal actions in which the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates are or\nmay become a party. The Employer will reimburse the Executive for any reasonable out-of-\npocket expenses the Executive incurs in order to satisfy his or her obligations under this clause.\n(b) Non-Competition Obligations\nIn consideration of the covenants of the Employer contained herein, the Executive\ncovenants and agrees with the Employer that, during the "Non-Compete Period" (as hereinafter\ndefined) and within a one hundred fifty (150) "air" mile radius from Bar Harbor, Maine, the\nExecutive shall not without specific approval, directly or indirectly:\n(i)\nadvise any past, present, or future customers of the Employer to withdraw,\ncurtail, or cancel his or her or its business with the Employer; or\n(ii) cause, suggest, or induce others to call on any past, present, or future\ncustomers of the Employer.\nThe "Non-Compete Period" shall commence on the date hereof and terminate one year\nafter the cessation of the Executive’s employment with the Employer and all of its affiliates,\nregardless of reason, whether or not pursuant to this Agreement.\n(c) Non-Solicitation of Employees\nWhile employed by the Employer, and for one year following cessation of his or her\nemployment with the Employer and all of its affiliates for any reason, the Executive shall not,\ndirectly or indirectly, by any means or device whatsoever, for himself or herself or on behalf of,\nor in conjunction with, any other person, partnership or corporation, solicit, entice, hire, or\nattempt to hire or employ any employee of the Employer, the Company, the Bank, Trust Services\nor any of their affiliated entities.\n8.\nREFORMATION; INJUNCTIVE RELIEF.\n(a) All the parties hereto acknowledge that the parties have carefully considered the\nnature and scope of this Agreement. The activities, period and area covered by Section 7 are\nexpressly acknowledged and agreed to be fair, reasonable and necessary. To the extent that any\ncovenant contained in Section 7 is held to be invalid, illegal or unenforceable because of the\nextent of activities, duration of such covenant, the geographic area covered thereby, or otherwise,\nthe parties agree that the court making such determination shall reform such covenant to include\nas much of its nature and scope as will render it enforceable and, in its reduced form, said\ncovenant shall be valid, legal and enforceable to the fullest extent of the law.\nThe invalidity or unenforceability of any provision of this Agreement, after reformation\nas provided in this Section 8, shall not affect any other provision hereof, and this Agreement\nshall be construed in all respects as if such invalid or unenforceable provision was omitted.\nFurthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added\nautomatically as a part of this Agreement a provision as similar in terms to such illegal, invalid,\nor unenforceable provision as may be possible and be legal, valid, and enforceable.\n(b) The Executive acknowledges and agrees that, upon any breach by the Executive\nof his or her obligations under Section 7 hereof, the Employer will have no adequate remedy at\nlaw, and accordingly will be entitled to specific performance and other appropriate injunctive and\nequitable relief, notwithstanding Section 9 hereof. Nothing herein shall be construed as\nprohibiting the Employer from pursuing any other remedies available to it, including the\nrecovery of damages from the Executive.\n9.\nMEDIATION AND ARBITRATION.\nIf the Executive and the Employer have any dispute whatsoever relating to the\ninterpretation, validity or performance of this Agreement, or any other dispute arising out of this\nAgreement, every reasonable attempt will be made to resolve any differences or dispute within\nthirty (30) days of an issuance of written notice by either party to the other party.\nIf a successful resolution of any differences or dispute has not been achieved to the\nsatisfaction of both parties at the end of the thirty (30) day period, the following steps will be\nused:\nExcept as otherwise expressly provided hereunder, the parties agree that any and all\ndisputes arising out of the Executive’s employment or cessation of employment, including but\nnot limited to any dispute, controversy, or claim arising under any federal, state, or local statute,\nlaw, ordinance or regulation or under this Agreement, shall be resolved exclusively by\nAlternative Dispute Resolution described in this Agreement ("ADR"). The initiation of ADR\nshall first require mediation, and the parties agree to first try to settle any dispute through\nmediation. Mediation shall be initiated by either party by the serving of a written notice of intent\nto mediate (a "Mediation Notice") by one party upon the other. If no resolution has been\nmutually agreed through mediation within ninety (90) days of service of a Mediation Notice,\nthen and only then may the dispute be submitted to arbitration. Arbitration shall be initiated by\nthe serving of a written notice of intent to arbitrate (an "Arbitration Notice") by one party upon\nthe other. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to preclude\nthe Employer from seeking temporary or permanent injunctive relief and/or damages from a\ncourt of competent jurisdiction pursuant to Section 8 of this Agreement with respect to any\nbreach of Section 7 of this Agreement.\n(a) In the event that a party wishes to initiate ADR, a Mediation Notice must be\nserved on the other party within six months from the date on which the claim arose. If the parties\ncannot mutually agree on a mediator, then a mediator shall be selected in accordance with the\nEmployment Mediation Rules of the American Arbitration Association.\n(b) In the event that mediation is unsuccessful and arbitration is initiated, it shall be\nconducted under the National Rules of the Resolution of Employment Disputes of the American\nArbitration Association. There shall be a single arbitrator to be agreed upon by the parties,\nprovided that, if the parties are unable to agree upon a single arbitrator, each party shall name an\narbitrator and the two so named shall name a third arbitrator. The arbitration proceedings shall\nbe heard by the arbitrator(s) and the decision of the arbitrator, or the majority of the panel if one\nhas been selected, shall be final and binding on the parties. Judgment upon the arbitration award\nmay be entered in any court of competent jurisdiction. An Arbitration Notice must be served on\nthe other party within one year from the date on which the claim arose, and failure to bring such\na claim within such one-year period shall constitute a waiver of such claim and an absolute bar to\nany further proceedings in any forum with respect to it. All mediation and arbitration\nproceedings shall be conducted in Bangor, Maine, unless the parties otherwise agree in writing.\n(c) The cost of any mediation proceeding under this Section 9 shall be paid entirely\nby the Employer. The cost of any arbitration proceeding will be shared equally by the parties to\nthe dispute; provided, however, that, if the dispute is resolved in favor of the Executive, such cost\nshall be paid in full by the Employer. Each party shall be responsible for its own cost of\nrepresentation and counsel.\n10. POST-TERMINATION OBLIGATIONS .\nAll payments and benefits due to the Executive under this Agreement shall be subject to\nthe Executive's compliance with this Section 10 for one full year following the Executive's Date\nof Termination. The Executive shall, upon reasonable notice, furnish such information and\nassistance to the Employer, the Company, the Bank or Trust Services as may reasonably be\nrequired by the Employer, the Company, the Bank or Trust Services in connection with any\nlitigation in which it or any of its subsidiaries or affiliates is, or may become, a party.\n11. GENERAL PROVISIONS.\n(a) All notices required by this Agreement shall be in writing and shall be sufficiently\ngiven if delivered personally or mailed by registered mail or certified mail, return receipt\nrequested, to the parties at their then current addresses. All notices shall be deemed to have been\ngiven as of the date so delivered or mailed.\nWitness:\n_____________________________\n/s/Mark Clapp\n___________________________\n/s/William Swales\n(b) This Agreement and the plans and agreements described in Section 5(b) contain\nthe entire transaction between the parties, and there are no other representations, warranties,\nconditions or agreements relating to the subject matter thereof. This Agreement hereby\nsupersedes any prior Change in Control Agreement between the Executive and the Company.\n(c) The waiver by any party of any breach or default of any provision of this\nAgreement shall not operate or be construed as a waiver of any subsequent breach.\n(d) This Agreement may not be changed orally but only by an agreement in writing\nexecuted on behalf of the party against which enforcement of any waiver, change, modification,\nconsent or discharge is sought.\n(e) This Agreement shall be binding upon and inure to the benefit of the Employer\nand the Executive and their respective successors, assigns, heirs and legal representatives\n(including, but not limited to, any successor of the Employer described in Section 6).\n(f)\nEach of the parties agrees to execute all further instruments and documents and to\ntake all further action as the other party may reasonably request in order to effectuate the terms\nand purposes of this Agreement.\n(g) This Agreement may be executed in one or more counterparts, all of which taken\ntogether shall constitute one and the same instrument.\n(h) This Agreement shall be construed pursuant to and in accordance with the laws of\nthe State of Maine. Actions brought by the Employer under this Agreement shall be subject to\nthe exclusive jurisdiction of the state and federal courts of Maine. Both parties consent to the\npersonal jurisdiction of such courts for such actions, and agree that they may be served with\nprocess in accordance with Section 11(a). Notwithstanding anything herein to the contrary, any\npayments to the Executive, whether pursuant to this Agreement or otherwise, are subject to and\nconditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, §12\nU.S .C . 1828(k) and any regulations promulgated thereunder.\n(i)\nThe Executive acknowledges that he has had a full and complete opportunity to\nreview the terms, enforceability and implications of this Agreement, and that the Employer has\nnot made any representations or warranties to the Executive concerning the terms, enforceability\nand implications of this Agreement other than as are reflected in this Agreement.\n(j) Any provision of this Agreement that is susceptible to more than one\ninterpretation shall be interpreted in a manner that is consistent with this Agreement satisfying\nthe requirements of Code Section 409A.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first\nabove written.\nCOMPANY:\nBAR HARBOR BANKSHARES\nBY\n________________________________________\n/s/Peter Dodge\nPeter Dodge,\nPeter Dodge,\nIts Chairman of the Board\nWitness:\nEXECUTIVE:\nBY\n_______________________________________\n/s/Richard Maltz
3e1e64647eaf883d7b49aba5dce0926a.pdf	jurisdiction party	Exhibit B\nEMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON -COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON -COMPETE AGREEMENT (“Agreement”) is made as of the date set forth on the\nsignature page below between POZEN Inc. ( “POZEN ”) , and the person whose name is set forth on the signature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by POZEN, with the intention that this Agreement shall apply to the entire period of\nEmployee’s employment with POZEN (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1.\nCONFIDENTIAL INFORMATION DEFINED. “ Confidential Information” means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs, drawings,\nspecifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances, chemical compounds,\nsubcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing\nmaterials), and matters of a business nature (such as the identity of customers and prospective customers, the nature of work being done for or discussed with\ncustomers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial\ninformation, plans for further development, and any other information of a similar nature not available to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from the Company, as\nevidenced by the then existing publication or other public dissemination of such information in written or other documentary form; (b) becomes available to the\npublic through no fault of Employee; (c) is received in good faith by Employee from a third party who is known to Employee to be not subject to an obligation of\nconfidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed\nby Employee, provided that Employee shall promptly notify the Company and not attempt to prevent the Company from opposing or limiting such order.\n2.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF POZEN. Employee acknowledges that, during the period of Employee’s\nemployment with POZEN, Employee has had or will have access to Confidential Information of POZEN. Therefore, Employee agrees that both during and after\nthe period of Employee’s employment with POZEN, Employee shall not, without the prior written approval of POZEN, directly or indirectly (a) reveal, report,\npublish, disclose or transfer any Confidential Information of POZEN to any person or entity; or (b) use any Confidential Information of POZEN for any purpose or\nfor the benefit of any person or entity, except in the good faith performance of Employee’s work for POZEN or to comply with an order from any court of\ncompetent jurisdiction.\n3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS . Employee acknowledges that, during the period of Employee’s\nemployment with POZEN, Employee may have had or will have access to Confidential Information of third parties who have given POZEN the right to use such\nConfidential Information, subject to a non-disclosure agreement between POZEN and such third party. Therefore, Employee agrees that both during and after the\nperiod of Employee’s employment with POZEN, Employee shall not, without the prior written approval of POZEN, directly or indirectly (a) reveal, report, publish,\ndisclose or transfer any Confidential Information of such third parties to any person or entity; or (b) use any Confidential Information of such third parties for any\npurpose or for the benefit of any person or entity, except in the good faith performance of Employee’s work for POZEN or to comply with an order from any court\nof competent jurisdiction.\n-18-\n4.\nPROPERTY OF POZEN. Employee acknowledges and agrees that all Confidential Information of POZEN and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records (other than Employee’s personal address book), whether printed, typed, handwritten, videotaped,\ntransmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by\nEmployee, or made available to Employee, during the period of Employee employment with POZEN (including the period prior to the date of this Agreement)\nconcerning POZEN’s Confidential Information are and shall remain POZEN’s property and shall be delivered to POZEN within five (5) business days after the\ntermination of such employment with POZEN or at any earlier time on request of POZEN. Employee shall not retain copies of such Confidential Information,\ndocuments and records.\n5.\nPROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6.\nINVENTIONS.\n(a)\nEmployee shall promptly, from time to time, fully inform and disclose to POZEN in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement), or which\nEmployee may later make, conceive or develop, during the period of Employee’s employment with POZEN, which pertain to or relate to POZEN’s business or any\nof the work or businesses carried on by POZEN (“Inventions”). This covenant applies to all such Inventions, whether or not they are eligible for patent, copyright,\ntrademark, trade secret or other legal protection; and whether or not they are conceived and/or developed by Employee alone or with others; and whether or not\nthey are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at POZEN’s facility or not.\n(b)\nInventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with POZEN.\n(c)\nAll Inventions shall be the sole and exclusive property of POZEN, and shall be deemed part of the Confidential Information of POZEN for purposes\nof this Agreement, whether or not fixed in a tangible medium of expression. Employee hereby assigns all Employee’s rights in all Inventions and in all related\npatents, copyrights and trademarks, trade secrets and other proprietary rights therein to POZEN. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be “works made for hire” and that POZEN shall be deemed the author of such works under the United States Copyright\nAct, provided that in the event and to the extent such works are determined not to constitute “works made for hire”, Employee hereby irrevocably assigns and\ntransfers to POZEN all right, title and interest in such works.\n(d)\nEmployee shall assist and cooperate with POZEN, both during and after the period of Employee’s employment with POZEN, at POZEN’s sole\nexpense, to allow POZEN to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions. Employee shall\nsign such truthful documents, and do such things necessary, to obtain such protection and to vest POZEN with full and exclusive title in all Inventions against\ninfringement by others. Employee hereby appoints the Secretary of POZEN as Employee’s attorney-in-fact to execute any truthful documents on Employee’s\nbehalf for this purpose.\n-19-\n(e)\nEmployee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s employment with\nPOZEN.\n7.\nCOVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with POZEN, employed in the discovery or\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section 7 shall\napply. Employee and POZEN agree that the services rendered by Employee are unique and irreplaceable, and that competitive use and knowledge of any\nConfidential Information would substantially and irreparably injure POZEN’s business, prospects and good will. Employee and POZEN also agree that POZEN’s\nbusiness is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees that during the period of Employee’s\nemployment with POZEN and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other\nentity (whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a)\ndevelop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g. , s ame r ec eptors, same mechanism of action, etc.) and have the same indication as those being developed, offered or sold by POZEN\non the date of the termination of Employee’s employment with POZEN for any reason, provided that the foregoing shall not be violated by Employee’s activities\nwith an entity where the portion of the competitive business involved is less than five percent (5%) of the revenues of the portion of the entity that is under\nEmployee’s supervision;\n(b)\nsolicit, induce, encourage or attempt to induce or encourage any employee or consultant of POZEN, except Employee’s executive assistant, to\nterminate his or her employment or consulting relationship with POZEN, or to breach any other obligation to POZEN (other than advertising not specifically\ntargeted at the Company’s employees and serving as a reference upon request), however, notwithstanding the foregoing, Employee may engage in the activities\ndescribed in this Section 7(b) with respect to one executive who worked with Employee in the past and joined the Company without it violating this provision; or\n(c)\ninterfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between POZEN and any consultant, contractor,\ncustomer, potential customer, or supplier of POZEN.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the\nadequate protection of POZEN’s business. In the event that any such geographic, activity or time limitation is deemed to be unreasonable by a court, Employee\nshall submit to the reduction of either said activity or time limitation to such activity or period as the court shall deem reasonable. In the event that Employee is in\nviolation of the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the pendency of such\nproceedings, including appeals.\n8.\nDISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes POZEN to notify others, including but not limited to customers of POZEN and any\nof Employee’s future employers, of the terms of this Agreement and Employee’s responsibilities under this Agreement.\n-20-\n9.\nSPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate POZEN in the event of a\nbreach or threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to POZEN at law or in equity, POZEN shall be\nentitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n10.\nNO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant by POZEN to the employee of any license or other right under any patent, patent application or other intellectual property right or interest belonging to\nPOZEN.\n11.\nSEVERABILITY.\n(a)\nEach of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be determined\nto be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable provision shall be reformed so\nas to be valid and enforceable to the fullest extent permitted by law.\n(b)\nIt is not a defense to the enforcement of any provision of this Agreement that POZEN has breached or failed to perform any obligation or covenant\nhereunder or under any other agreement or understanding between Employee and POZEN.\n12.\nGOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n13.\nSUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n14.\nAMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of POZEN.\n15.\nACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS\nAGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE EMPLOYEE HAS RECEIVED A COPY OF THIS\nAGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE ’S PERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS\nUNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE’S EMPLOYMENT WITH POZEN FOR ANY REASON .\n-21-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nPOZEN INC.\nBy:\nTitle:\nEMPLOYEE:\nAdrian Adams\n(Print Name)\n(Signature Here)\nDate:\nAddress:\n-22-	Exhibit B\nEMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT\n \nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT (“Agreement") is made as ofIhe date set forth on the\nsignature page below between POZEN Inc. (“POZE N"), and the person whose name is set forth on the signature page below as Employee (“E mployee").\nIn consideration of Employee’s employment or continued employment by POZE N, wiIh the intention thatthis Agreementshall apply to the entire period of\nEmployee’s employment with POZE N (including the period prior to the date of Ihis Agreement), Employee hereby agrees as follows:\n1. CONFIDE NTIAL IN FORMATION DEFIN E D. “Confidential Information" means trade secreIs, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepIs, designs, drawings,\nspecifications, techniques, models, diagrams, testdata, scientific methods and know-how, and materials such as reagents, substances, chemical compounds,\nsubcellular constituents, cell or cell lines, organisms and progeny, and mutanIs, derivatives or replications derived from or relating to any ofthe foregoing\nmaterials), and matters of a business nature (such as the identity ofcustomers and prospective customers, the nature ofwork being done for or discussed with\ncustomers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial\ninformation, plans for futher development, and any oIher information of a similar nature not available to the public).\n“Confidential Information"shall notinclude information that: (a) was in Employee’s possession or in the public domain before receipt from Ihe Company, as\nevidenced by Ihe Ihen existing publication or oIher public dissemination ofsuch information in written or oIher documentary form; (b) becomes available to the\npublic through no fault of Employee; (c) is received in good faith by Employee from a Ihird party who is known to Employee to be notsubjectto an obligation of\nconfidentiality to Ihe Company or any other party; or (d) is required by a judicial or administrative authority or court having competentjurisdiction to be disclosed\nby Employee, provided Lat Employee shall promptly notify Ihe Company and not attempt to prevent Ihe Company from opposing or limiting such order.\n2. NON-DISCLOSURE OF CONFIDE NTIAL INFORMATION OF POZE N. Employee acknowledges Ihat, during the period of Employee’s\nemployment with POZEN, Employee has had or will have access to Confidential Information of POZEN. Therefore, Employee agrees that both during and after\nIhe period of Employee’s employmentwiIh POZE N, Employee shall not, without Ihe prior written approval of POZE N, direcij or indirectly (a) reveal, report,\npublish, disclose or transfer any Confidential Information of POZEN to any person or entity; or (b) use any Confidential Information of POZE N for any purpose or\nfor the benefit of any person or entity, except in the good faith performance of Employee’s work for POZE N or to comply with an order from any court of\ncompetentjurisdiction.\n3. NON-DISC LOSU RE OF CON F IDE NTIAL INFO RMATION OF OTHE RS. E mployee acknowledges that, during the period of E mployee’s\nemployment with POZEN, Employee may have had or will have access to Confidential Information ofIhird parties who have given POZEN Ihe right to use such\nConfidential Information, subject to a non-disclosure agreement between POZEN and such third party. Therefore, Employee agrees that both during and after Ihe\nperiod of Employee’s employmentwiIh POZEN, Employee shall not, without the prior written approval of POZE N, direcij or indirectly (a) reveal, report, publish,\ndisclose or transfer any Confidential Information ofsuch Ihird parties to any person or entity; or (b) use any Confidential Information ofsuch Ihird parties for any\npurpose or for the benefit of any person or entity, except in the good faith performance of Employee’s work for POZE N or to comply wiIh an order from any court\nof competentjurisdiction.\n.18.\n4. P ROPE RTY OF POZE N. Employee acknowledges and agrees Ihat all Confidential Information of POZE N and all reports, drawings, blueprints,\nmaterials, data, code, notes and oIher documenIs and records (other Ihan Employee’s personal address book), whether printed, typed, handwritten, videotaped,\ntransmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by\nEmployee, or made available to Employee, during the period of Employee employmentwith POZE N (including the period prior to the date of this Agreement)\nconcerning POZEN’s Confidential Information are and shall remain POZEN’s property and shall be delivered to POZEN within five (5) business days afterthe\ntermination of such employmentwith POZE N or at any earlier time on request of POZE N. Employee shall not retain copies of such Confidential Information,\ndocuments and records.\n5. PROP RIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promijy, from time to time, fully inform and disclose to POZEN in writing all inventions, copyrightable material, designs,\nimprovemenIs and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement), or which\nEmployee may later make, conceive or develop, during the period of Employee’s employment with POZE N, which pertain to or relate to POZE N’s business or any\nof Ihe work or businesses carried on by POZE N (“Inventions"). This covenant applies to all such Inventions, whether or notthey are eligible for patent, copyright,\ntrademark, trade secretor other legal protection; and whether or not they are conceived and/or developed by Employee alone or with others; and whether or not\nIhey are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at POZEN’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with POZE N.\n(c) All Inventions shall be the sole and exclusive property of POZE N, and shall be deemed part ofthe Confidential Information of POZE N for purposes\nof this Agreement, whether or not fixed in a tangible medium ofexpression. Employee hereby assigns all Employee’s rights in all Inventions and in all related\npatents, copyrights and trademarks, trade secrets and other proprietary rights therein to POZEN. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be “works made for hire" and that POZE N shall be deemed the author ofsuch works under the United States Copyright\nAct, provided Lat in the event and to the extentsuch works are determined not to constitute “works made for hire", Employee hereby irrevocably assigns and\ntransfers to POZEN all right, title and interestin such works.\n(d) Employee shall assist and cooperate with POZE N, both during and after the period of Employee’s employmentwith POZEN, at POZE N’s sole\nexpense, to allow POZE N to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions. Employee shall\nsign such truthful documents, and do such things necessary, to obtain such protection and to vest POZEN with full and exclusive title in all Inventions against\ninfringement by others. Employee hereby appoints the Secretary of POZE N as Employee’s attorney-in-factto execute any truthful documents on Employee’s\nbehalf for this purpose.\n_ 19 _\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s employmentwith\nPOZE N.\n7. COVE NANT NOT TO COM PETE. If Employee is, at any time during Employee’s period ofemploymentwith POZE N, employed in the discovery or\ndevelopment areas ofthe Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section 7 shall\napply. Employee and POZEN agree thatthe sen/ices rendered by Employee are unique and irreplaceable, and thatcompetitive use and knowledge of any\nConfidential Information would substantially and irreparably injure POZE N’s business, prospects and good will. Employee and POZE N also agree that POZE N’s\nbusiness is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees thatduring the period of Employee’s\nemployment with POZE N and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other\nentity (whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or sen/ices anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g., same receptors, same mechanism of action, etc.) and have the same indication as those being developed, offered or sold by POZE N\non the date of the termination of Employee’s employment with POZE N for any reason, provided th_at the foregoing shall not be violated by Employee’s activities\nwith an entity where the portion of the competitive business involved is less than five percent (5%) of the revenues of the portion of the entity that is under\nEmployee’s supen/ision;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultantof POZE N, except Employee’s executive assistant, to\nterminate his or her employment or consulting relationship with POZE N, or to breach any other obligation to POZE N (other than advertising not specifically\ntargeted at the Company's employees and sewing as a reference upon request), however, notwithstanding the foregoing, Employee may engage in the activities\ndescribed in this Section 7(b) with respect to one executive who worked with Employee in the past and joined the Company without it violating this provision; or\n(c) interfere with, disrupt, alter or attempt to disruptor alter the relationship, contractual or otherwise, between POZE N and any consultant, contractor,\ncustomer, potential customer, or supplier of POZE N.\nEmployee acknowledges thatthe foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the\nadequate protection of POZE N’s business. In the event that any such geographic, activity or time limitation is deemed to be unreasonable by a court, Employee\nshall submit to the reduction ofeither said activity or time limitation to such activity or period as the courtshall deem reasonable. In the event that Employee is in\nviolation of the aforementioned restrictive covenants, then the time limitation thereofshall be extended for a period of time equal to the pendency ofsuch\nproceedings, including appeals.\n8. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes POZEN to notify others, including butnotlimited to customers of POZEN and any\nof Employee’s future employers, of the terms ofthis Agreement and Employee’s responsibilities under this Agreement.\n.20.\n9. SP EC IFIC P ERFORMANC E. Employee acknowledges that money damages alone would not adequately compensate POZE N in the eventof a\nbreach or threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to POZEN at law or in equity, POZE N shall be\nentitled to injunctive relief for the enforcementof its rights and to an accounting of profits made during the period of such breach.\n10. NO RIGHTS G RANTED. Employee understands that nothing in this Agreementshall be deemed to constitute, by implication or otherwise, the\ngrant by POZEN to the employee of any license or other right under any patent, patent application or other intellectual property rightor interest belonging to\nPOZE N.\n11. SEVERABILITY.\n(a) Each ofthe covenants provided in this Agreement are separate and independentcovenants. If any provision of this Agreementshall be determined\nto be invalid or unenforceable, the remainder of this Agreementshall not be affected thereby and any such invalid or unenforceable provision shall be reformed so\nas to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcementof any provision of this Agreement that POZE N has breached or failed to perform any obligation or covenant\nhereunder or under any other agreement or understanding between E mployee and POZE N.\n12. GOVE RN ING LAW. This Agreementshall be governed by and construed in accordance with the laws ofthe State of North Carolina without regard\nto conflictof law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n13. S U P E RS E DE S OTHE R AG RE E M E NTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respectto its subject matter.\n14. AM E NDM E NTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of POZE N.\n15. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i)THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS\nAGREEMENT; (ii)THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii)THE EMPLOYEE HAS RECEIVEDACOPY OF THIS\nAGREEMENT,THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE'S PERSONNEL FILE;AND (iv)THE EMPLOYEE'S OBLIGATIONS\nUNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE'S EMPLOYMENT WITH POZEN FOR ANY REASON.\n.21.\nIN W|TN ESS WHE REOF, the parties have executed this Agreement as of the date set forth below.\nPOZE N INC.\nBy:\nTilje:\nEMPLOYEE: Adrian Adams\n(PrintName)\n(Signature Here)\nDate:\nAddress:\n.22.	xhibit B\nEMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT ("Agreement") is made as of the date set forth\non\nthe\nsignature page below between POZEN Inc. ("POZE N") and the person whose name is set forth on the signature page below as Employee ("Employee").\nIn consideration of Employee's employment or continued employment by POZEN, with the intention that this Agreement shall apply to the entire period of\nEmployee's employment with POZEN (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1.\nCONFIDENTIAL INFORMATION DEFINED. "Confidential Information" means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs, drawings,\nspecifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances, chemical compounds,\nsubcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing\nmaterials), and matters of a business nature (such as the identity of customers and prospective customers, the nature of work being done for or discussed with\ncustomers or prospective customers, suppliers marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial\ninformation, plans for further development, and any other information of a similar nature not available to the public).\n"Confidential Information" shall not include information that: (a) was in Employee's possession or in the public domain before receipt from the Company, as\nevidenced by the then existing publication or other public dissemination of such information in written or other documentary form; (b) becomes available to the\npublic through no fault of Employee; (c) is received in good faith by Employee from a third party who is known to Employee to be not subject to an obligation of\nconfidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed\nby Employee, provided that Employee shall promptly notify the Company and not attempt to prevent the Company from opposing or limiting such order.\n2.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF POZEN. Employee acknowledges that, during the period of Employee's\nemployment with POZEN, mployee has had or will have access to Confidential Information of POZEN. Therefore, Employee agrees that both during and after\nthe period of mployee's employment with POZEN, Employee shall not, without the prior written approval of POZEN, directly or indirectly (a) reveal, report,\npublish, disclose or transfer any Confidential Information of POZEN to any person or entity; or (b) use any Confidential Information of POZEN for any purpose or\nfor the benefit of any person or entity, except in the good faith performance of Employee's work for POZEN or to comply with an order from any court of\ncompetent jurisdiction.\n3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of mployee's\nemployment with POZEN, Employee may have had or wil have access to Confidential Information of third parties who have given POZEN the right to use such\nConfidential Information, subject to a non-disclosure agreement between POZEN and such third party. Therefore, Employee agrees that both during and after the\nperiod of E mployee's employment with POZEN, mployee shall not, without the prior written approval of POZEN, directly or indirectly (a) reveal, report, publish,\ndisclose or transfer any Confidential Information of such third parties to any person or entity; or (b) use any Confidential Information of such third parties for any\npurpose or for the benefit of any person or entity, except in the good faith performance of mployee's work for POZEN or to comply with an order from any court\nof competent jurisdiction.\n18\n4.\nPROPERTY OF POZEN. mployee acknowledges and agrees that all Confidential Information of OZEN and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records (other than Employee's personal address book), whether printed, typed, handwritten, videotaped,\ntransmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by\nmployee, or made available to Employee, during the period of Employee employment with POZEN (including the period prior to the date of this Agreement)\nconcerning POZEN's Confidential Information are and shall remain POZEN's property and shall be delivered to POZEN within five (5) business days after the\ntermination of such employment with POZEN or at any earlier time on request of POZEN. Employee shall not retain copies of such Confidential Information,\ndocuments and records.\n5.\nPROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6.\nINVENTIONS.\n(a)\nEmployee shall promptly, from time to time, fully inform and disclose to POZEN in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made conceived or developed (including prior to the date of this Agreement), or which\nmployee may later make, conceive or develop, during the period of Employee's employment with POZEN, which pertain to or relate to POZEN's business or any\nof the work or businesses carried on by POZEN ("Inventions"). This covenant applies to all such Inventions, whether or not they are eligible for patent, copyright,\ntrademark, trade secret or other lega protection; and whether or not they are conceived and/or developed by Employee alone or with others; and whether or not\nthey are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at POZEN's facility or not.\n(b)\nInventions shall not include any inventions made, conceived or developed by E mployee prior to Employee's employment with POZEN.\n(c)\nAl Inventions shall be the sole and exclusive property of POZEN, and shal be deemed part of the Confidential Information of POZEN for purposes\nof this Agreement, whether or not fixed in a tangible medium of expression. mployee hereby assigns all E mployee's rights in all Inventions and in all related\npatents, copyrights and trademarks, trade secrets and other proprietary rights therein to POZEN. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be "works made for hire" and that POZEN shall be deemed the author of such works under the United States Copyright\nAct, provided that in the event and to the extent such works are determined not to constitute "works made for hire", Employee hereby irrevocably assigns and\ntransfers to POZEN all right, title and interest in such works.\n(d)\nEmployee shall assist and cooperate with POZEN, both during and after the period of Employee's employment with OZEN at POZEN' sole\nexpense to allow POZEN to obtain, maintain and enforce patent copyright, trademark, trade secret and other legal protection for the Inventions. Employee shall\nsign such truthful documents, and do such things necessary, to obtain such protection and to vest POZEN with full and exclusive title in all Inventions against\ninfringement by others. Employee hereby appoints the Secretary of POZEN as Employee's attorney-in-fact to execute any truthful documents on Employee's\nbehalf for this purpose.\n19\n(e)\nmployee shall not be entitled to any additional compensation for any and all Inventions made during the period of mployee's employment with\nPOZEN.\n7.\nCOVENANT NOT TO COMPETE. If Employee is, at any time during Employee's period of employment with POZEN, employed in the discovery or\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section 7 shall\napply. Employee and POZEN agree that the services rendered by Employee are unique and irreplaceable, and that competitive use and knowledge of any\nConfidential Information would substantially and irreparably injure POZEN's business, prospects and good will. E mployee and POZEN also agree that POZEN's\nbusiness is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees that during the period of Employee's\nemployment with POZEN and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other\nentity (whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a)\ndevelop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technologica approach or\ntechnology platform (e.g., same receptors, same mechanism of action, etc.) and have the same indication as those being developed, offered or sold by POZE\non\nthe date of the termination of Employee's employment with POZEN for any reason, provided that the foregoing shall not be violated by Employee's activities\nwith an entity where the portion of the competitive business involved is less than five percent (5%) of the revenues of the portion of the entity that is under\nEmployee's supervision;\n(b)\nsolicit, induce, encourage or attempt to induce or encourage any employee or consultant of POZEN, except Employee's executive assistant, to\nterminate his or her employment or consulting relationship with POZEN, or to breach any other obligation to POZEN (other than advertising not specifically\ntargeted at the Company's employees and serving as a reference upon request), however, notwithstanding the foregoing, Employee may engage in the activities\ndescribed in this Section 7(b) with respect to one executive who worked with Employee in the past and joined the Company without it violating this provision; or\n(c)\ninterfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between POZEN and any consultant, contractor,\ncustomer, potential customer, or supplier of POZEN.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this ection 7 are reasonable and properly required for the\nadequate protection of POZEN's business. In the event that any such geographic, activity or time limitation is deemed to be unreasonable by a court, mployee\nshall submit to the reduction of either said activity or time limitation to such activity or period as the court shall deem reasonable. In the event that mployee is in\nviolation of the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the pendency of such\nproceedings, including appeals.\n8.\nDISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes OZEN to notify others, including but not limited to customers of POZEN and any\nof Employee's future employers, of the terms of this Agreement and Employee's responsibilities under this Agreement.\n20\n9.\nSPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate POZEN in the event of a\nbreach or threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to POZEN at law or in equity, POZEN shall be\nentitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n10.\nNO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant by POZEN to the employee of any license or other right under any patent, patent application or other intellectual property right or interest belonging to\nPOZEN.\n11.\nSEVERABILITY.\n(a)\nEach of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shal be determined\nto\nbe invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable provision shall be reformed so\nas to be valid and enforceable to the fullest extent permitted by law.\n(b)\nIt is not a defense to the enforcement of any provision of this Agreement that POZEN has breached or failed to perform any obligation or covenant\nhereunder or under any other agreement or understanding between Employee and POZEN.\n12.\nGOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n13.\nSUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n14.\nAMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of POZEN.\n15.\nACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS\nAGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE EMPLOYEE HAS RECEIVED A COPY OF THIS\nAGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE'S PERSONNEL FILE; AND (iv) THE EMPLOYEE'S OBLIGATIONS\nUNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE'S EMPLOYMENT WITH POZEN FOR ANY REASON.\n21\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nPOZEN INC.\nBy:\nTitle:\nEMPLOYEE:\nAdrian Adams\n(P rint Name)\n(Signature Here)\nDate:\nAddress:\n22	Exhibit B\nEMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON -COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON -COMPETE AGREEMENT (“Agreement”) is made as of the date set forth on the\nsignature page below between POZEN Inc. ( “POZEN ”) , and the person whose name is set forth on the signature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by POZEN, with the intention that this Agreement shall apply to the entire period of\nEmployee’s employment with POZEN (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1.\nCONFIDENTIAL INFORMATION DEFINED. “ Confidential Information” means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs, drawings,\nspecifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances, chemical compounds,\nsubcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing\nmaterials), and matters of a business nature (such as the identity of customers and prospective customers, the nature of work being done for or discussed with\ncustomers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial\ninformation, plans for further development, and any other information of a similar nature not available to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from the Company, as\nevidenced by the then existing publication or other public dissemination of such information in written or other documentary form; (b) becomes available to the\npublic through no fault of Employee; (c) is received in good faith by Employee from a third party who is known to Employee to be not subject to an obligation of\nconfidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed\nby Employee, provided that Employee shall promptly notify the Company and not attempt to prevent the Company from opposing or limiting such order.\n2.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF POZEN. Employee acknowledges that, during the period of Employee’s\nemployment with POZEN, Employee has had or will have access to Confidential Information of POZEN. Therefore, Employee agrees that both during and after\nthe period of Employee’s employment with POZEN, Employee shall not, without the prior written approval of POZEN, directly or indirectly (a) reveal, report,\npublish, disclose or transfer any Confidential Information of POZEN to any person or entity; or (b) use any Confidential Information of POZEN for any purpose or\nfor the benefit of any person or entity, except in the good faith performance of Employee’s work for POZEN or to comply with an order from any court of\ncompetent jurisdiction.\n3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS . Employee acknowledges that, during the period of Employee’s\nemployment with POZEN, Employee may have had or will have access to Confidential Information of third parties who have given POZEN the right to use such\nConfidential Information, subject to a non-disclosure agreement between POZEN and such third party. Therefore, Employee agrees that both during and after the\nperiod of Employee’s employment with POZEN, Employee shall not, without the prior written approval of POZEN, directly or indirectly (a) reveal, report, publish,\ndisclose or transfer any Confidential Information of such third parties to any person or entity; or (b) use any Confidential Information of such third parties for any\npurpose or for the benefit of any person or entity, except in the good faith performance of Employee’s work for POZEN or to comply with an order from any court\nof competent jurisdiction.\n-18-\n4.\nPROPERTY OF POZEN. Employee acknowledges and agrees that all Confidential Information of POZEN and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records (other than Employee’s personal address book), whether printed, typed, handwritten, videotaped,\ntransmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by\nEmployee, or made available to Employee, during the period of Employee employment with POZEN (including the period prior to the date of this Agreement)\nconcerning POZEN’s Confidential Information are and shall remain POZEN’s property and shall be delivered to POZEN within five (5) business days after the\ntermination of such employment with POZEN or at any earlier time on request of POZEN. Employee shall not retain copies of such Confidential Information,\ndocuments and records.\n5.\nPROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6.\nINVENTIONS.\n(a)\nEmployee shall promptly, from time to time, fully inform and disclose to POZEN in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement), or which\nEmployee may later make, conceive or develop, during the period of Employee’s employment with POZEN, which pertain to or relate to POZEN’s business or any\nof the work or businesses carried on by POZEN (“Inventions”). This covenant applies to all such Inventions, whether or not they are eligible for patent, copyright,\ntrademark, trade secret or other legal protection; and whether or not they are conceived and/or developed by Employee alone or with others; and whether or not\nthey are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at POZEN’s facility or not.\n(b)\nInventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with POZEN.\n(c)\nAll Inventions shall be the sole and exclusive property of POZEN, and shall be deemed part of the Confidential Information of POZEN for purposes\nof this Agreement, whether or not fixed in a tangible medium of expression. Employee hereby assigns all Employee’s rights in all Inventions and in all related\npatents, copyrights and trademarks, trade secrets and other proprietary rights therein to POZEN. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be “works made for hire” and that POZEN shall be deemed the author of such works under the United States Copyright\nAct, provided that in the event and to the extent such works are determined not to constitute “works made for hire”, Employee hereby irrevocably assigns and\ntransfers to POZEN all right, title and interest in such works.\n(d)\nEmployee shall assist and cooperate with POZEN, both during and after the period of Employee’s employment with POZEN, at POZEN’s sole\nexpense, to allow POZEN to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions. Employee shall\nsign such truthful documents, and do such things necessary, to obtain such protection and to vest POZEN with full and exclusive title in all Inventions against\ninfringement by others. Employee hereby appoints the Secretary of POZEN as Employee’s attorney-in-fact to execute any truthful documents on Employee’s\nbehalf for this purpose.\n-19-\n(e)\nEmployee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s employment with\nPOZEN.\n7.\nCOVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with POZEN, employed in the discovery or\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section 7 shall\napply. Employee and POZEN agree that the services rendered by Employee are unique and irreplaceable, and that competitive use and knowledge of any\nConfidential Information would substantially and irreparably injure POZEN’s business, prospects and good will. Employee and POZEN also agree that POZEN’s\nbusiness is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees that during the period of Employee’s\nemployment with POZEN and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other\nentity (whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a)\ndevelop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g. , s ame r ec eptors, same mechanism of action, etc.) and have the same indication as those being developed, offered or sold by POZEN\non the date of the termination of Employee’s employment with POZEN for any reason, provided that the foregoing shall not be violated by Employee’s activities\nwith an entity where the portion of the competitive business involved is less than five percent (5%) of the revenues of the portion of the entity that is under\nEmployee’s supervision;\n(b)\nsolicit, induce, encourage or attempt to induce or encourage any employee or consultant of POZEN, except Employee’s executive assistant, to\nterminate his or her employment or consulting relationship with POZEN, or to breach any other obligation to POZEN (other than advertising not specifically\ntargeted at the Company’s employees and serving as a reference upon request), however, notwithstanding the foregoing, Employee may engage in the activities\ndescribed in this Section 7(b) with respect to one executive who worked with Employee in the past and joined the Company without it violating this provision; or\n(c)\ninterfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between POZEN and any consultant, contractor,\ncustomer, potential customer, or supplier of POZEN.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the\nadequate protection of POZEN’s business. In the event that any such geographic, activity or time limitation is deemed to be unreasonable by a court, Employee\nshall submit to the reduction of either said activity or time limitation to such activity or period as the court shall deem reasonable. In the event that Employee is in\nviolation of the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the pendency of such\nproceedings, including appeals.\n8.\nDISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes POZEN to notify others, including but not limited to customers of POZEN and any\nof Employee’s future employers, of the terms of this Agreement and Employee’s responsibilities under this Agreement.\n-20-\n9.\nSPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate POZEN in the event of a\nbreach or threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to POZEN at law or in equity, POZEN shall be\nentitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n10.\nNO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant by POZEN to the employee of any license or other right under any patent, patent application or other intellectual property right or interest belonging to\nPOZEN.\n11.\nSEVERABILITY.\n(a)\nEach of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be determined\nto be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable provision shall be reformed so\nas to be valid and enforceable to the fullest extent permitted by law.\n(b)\nIt is not a defense to the enforcement of any provision of this Agreement that POZEN has breached or failed to perform any obligation or covenant\nhereunder or under any other agreement or understanding between Employee and POZEN.\n12.\nGOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n13.\nSUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n14.\nAMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of POZEN.\n15.\nACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS\nAGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE EMPLOYEE HAS RECEIVED A COPY OF THIS\nAGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE ’S PERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS\nUNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE’S EMPLOYMENT WITH POZEN FOR ANY REASON .\n-21-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nPOZEN INC.\nBy:\nTitle:\nEMPLOYEE:\nAdrian Adams\n(Print Name)\n(Signature Here)\nDate:\nAddress:\n-22-
3e8ca94003354022fd0f031eea25aec5.pdf	effective_date jurisdiction party term	EX-10.6 2 dex106.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nExhibit 10.6\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nThis Employment, Confidentiality and Noncompete Agreement (“Agreement”) is made and entered into effective as of the 10 day of\nJanuary, 2007, by and between Build-A -Bear Workshop, Inc., a Delaware corporation (“Company”), and Dave Finnegan (“Employee”).\nWHEREAS, Company desires to employ and Employee desires to be employed as the Chief Information Bear of Company.\nWHEREAS, Company has pioneered the retail concept of “make your own” stuff plush toys, including animals and dolls, and is engaged\nin, among other things, the business of production, marketing, promotion and distribution of plush stuff toys, clothing, accessories and similar items,\nincluding without limitation, the ownership, management, franchising, leasing and development of retail stores in which the basic operation is the\nselling of such items, and the promotion of the related concepts and characters through merchandising and mass media. The Company is\nheadquartered and its principal place of business are located in, and this Agreement is being signed in, St. Louis, Missouri.\nWHEREAS, Company conducts business in selected locations throughout the United States and internationally through franchise\narrangements.\nWHEREAS, Company has expended a great deal of time, money and effort to develop and maintain its proprietary Confidential\nInformation (as defined herein) which is material to Company and which, if misused or disclosed, could be very harmful to Company’s business.\nWHEREAS, the success of Company depends to a substantial extent upon the protection of its Confidential Information and goodwill by\nall of its employees.\nWHEREAS, Company compensates its employees to, among other things, develop and preserve goodwill with its customers, landlords,\nsuppliers and partners on Company’s behalf and business information for Company’s ownership and use.\nWHEREAS, if Employee were to leave Company, Company, in all fairness, would need certain protections in order to prevent\ncompetitors of Company from gaining an unfair competitive advantage over Company or diverting goodwill from Company, or to prevent Employee\nfrom misusing or misappropriating the Confidential Information.\nNOW, THEREFORE, in consideration of the compensation and other benefits of Employee’s employment by Company and the recitals,\nmutual covenants and agreements hereinafter set forth, Employee and Company agree as follows:\n1. Employment Services.\n(a) Employee is hereby employed by Company, and Employee hereby accepts such employment, upon the terms and conditions\nhereinafter set forth. Employee shall serve\nth\nas Chief Information Bear, during the Employment Period, on a full-time basis. Employee shall carry out such duties as are assigned to him by\nCompany’s Chief Executive Bear.\n(b) Employee agrees that throughout Employee’s employment with Company, Employee will (i) faithfully render such services as\nmay be delegated to Employee by Company, (ii) devote substantially all of Employee’s entire business time, good faith, best efforts, ability, skill and\nattention to Company’s business, and (iii) follow and act in accordance with all of the rules, policies and procedures of Company, including but not\nlimited to working hours, sales and promotion policies, and specific Company rules. Company further agrees that it shall not during the Initial Term\nof this Agreement require Employee to relocate his residence outside of the St. Louis metropolitan area.\n(c) “Company” means Build-A-Bear Workshop, Inc. or one of its Subsidiaries, whichever is Employee’s employer. The term\n“Subsidiary” means any corporation, joint venture or other business organization in which Build-A-Bear Workshop, Inc. now or hereafter, directly or\nindirectly, owns or controls more than fifty percent (50%) interest.\n2. Term of Employment. The term of this Agreement shall commence on the date first set forth above, and shall end on the third\nanniversary hereof, unless sooner terminated as provided in Section 4 hereof (the “Initial Term”). Following the Initial Term, this Agreement shall\nrenew for successive three-year periods (each a “Renewal Period”; collectively, the Initial Term and each Renewal Period, the “Employment\nPeriod”), unless either party notifies the other party of its decision not to renew the Agreement no later than ninety (90) days prior to the third\nanniversary date, or unless the Agreement is sooner terminated as provided in Section 4 hereof. For the avoidance of doubt, if either party provides\nnotice of non-renewal of the Agreement no later than ninety (90) days prior to the third anniversary date (either at the end of the Initial Term or at the\nend of any Renewal Period), then the Agreement shall expire on that anniversary date.\n3. Compensation.\n(a) Base Salary. During the Employment Period, Company shall pay Employee as compensation for his services an annual base\nsalary of not less than Two Hundred Twenty Thousand Dollars ($220,000), payable in accordance with Company’s usual practices. Employee’s\nannual base salary rate shall be reviewed by Company’s Compensation Committee at least annually for increase following each fiscal year so that\nEmployee’s salary will be commensurate for similarly situated executives with firms similarly situated to Company; provided, however, that if\nEmployee’s individualized performance targets (set for each fiscal year by Employee and Employee’s team leader) are achieved, Employee’s annual\nbase salary rate shall not be subject to decrease at any time during the Employment Period and shall be subject to annual increase by no less than the\naverage percentage increase given to all other Company executive employees for such fiscal year (the “Average Increase”).\n(b) Bonus. Should Company exceed its sales, profits and other objectives for any fiscal year, Employee shall be eligible to\nreceive a bonus for such fiscal year in the amount as determined by the Compensation Committee of the Board of Directors; provided however the\n2\npotential bonus opportunity for Employee in any given fiscal year will be set by the Compensation Committee such that, if the Company exceeds its\nobjectives, the Company will pay Employee not less than thirty five percent (35%) of Employee’s annual base pay for such fiscal year. Any bonus\npayable to Employee will be payable in cash, stock or stock options, or combination thereof, all as determined by the Board of Directors or any duly\nauthorized committee thereof, and unless a different payout schedule is applicable for all executive employees of the Company, any such bonus\npayment will be payable in a single, lump sum payment. In the event of termination of this Agreement because of Employee’s death or disability (as\ndefined by Section 4(b)), termination by the Company without Cause pursuant to Section 4.1(c), or pursuant to Employee’s right to terminate this\nAgreement for Good Reason under Section 4.1(d), the bonus criteria shall not change and any bonus shall be pro-rated based on the number of full\ncalendar weeks during the applicable fiscal year during which Employee was employed hereunder.\nSuch bonus, if any, shall be payable after Company’s accountants have determined the sales and profits and have issued their\naudit report with respect thereto for the applicable fiscal year, which determination shall be binding on the parties. Any such bonus shall be paid\nwithin seventy-five (75) days after the end of each calendar year, regardless of Employee’s employment status at the time payment is due. If timely\npayment is not made, the Company shall indemnify the Employee against any additional tax liability that the Employee may incur proximately as a\nresult of the payment being made after the seventy-five day period.\n(c) Stock Options. Employee may have been granted in the past, and/or may in the future be granted, a certain number of\nrestricted shares and/or stock options to purchase shares of Company’s common stock (the “Common Stock”), pursuant to the terms set forth more\nparticularly in the stock option and/or restricted stock agreements (“Stock Agreement”) used in connection with the Build-A-Bear Workshop, Inc.\n2000 Stock Option Plan (or any successor plan) (the “Plan”). The Plan and applicable Stock Agreement(s) shall govern any grants of restricted\nshares and/or stock options to purchase shares of Company’s Common Stock.\n(d) Discounts. Employee and his immediate family will be entitled to a 20% discount for all merchandise purchased at\nCompany’s stores.\n(e) Vacation. Employee shall be entitled to paid vacation and paid sick leave on the same basis as may from time to time apply to\nother Company executive employees generally. Vacations will be scheduled with the approval of Company’s Chief Executive Bear, who may block\nout certain periods of time during which vacations may not be taken, including preceding Valentine’s Day, preceding Easter, from November 1\nthrough December 31, during Company inventory, and just prior to store openings. One-third of one year’s vacation (or any part of it) may be carried\nover to the next year; provided that such carry over is used in the first calendar quarter of the next year. Unless approved by the Chief Executive\nBear, all unused vacation shall be forfeited. No more than two weeks of vacation can be taken at one time. Employee shall also be entitled to one\n(1) additional day per calendar year of paid vacation to be taken in the month of his birthday.\n(f) Other. Employee shall be eligible for such other perquisites as may from time to time be awarded to Employee by Company\npayable at such times and in such amounts\n3\nas Company, in its sole discretion, may determine. All such compensation shall be subject to customary withholding taxes and other employment\ntaxes as required with respect thereto. During the Employment Period, Employee shall also qualify for all rights and benefits for which Employee\nmay be eligible under any benefit plans including group life, medical, health, dental and/or disability insurance or other benefits (“Welfare Benefits”)\nwhich are provided for employees generally at his then current location of employment. Employee may, in his sole discretion, decline any perquisite,\nWelfare Benefit, proposed annual salary increase, or bonus payment.\n4. Termination of Employment. Prior to the expiration of the Employment Period, this Agreement and Employee’s employment may be\nterminated as follows:\n(a) Upon Employee’s death;\n(b) By the Company upon thirty (30) day’s prior written notice to Employee in the event Employee, by reason of permanent\nphysical or mental disability (which shall be determined by a physician selected by Company or its insurers and acceptable to Employee or\nEmployee’s legal representative (such agreement as to acceptability not to be withheld unreasonably), shall be unable to perform the essential\nfunctions of his position, with or without reasonable accommodation, for six (6) consecutive months; provided, however, Employee shall not be\nterminated due to permanent physical or mental disability unless or until said disability also entitles Employee to benefits under such disability\ninsurance policy as is provided to Employee by Company, provided however that continued entitlement to disability benefits coverage shall be not\nrequired where Employee fails to qualify for benefits coverage continuation due to an act or omission by Employee.\n(c) By the Company with or without Cause. For the purposes of this Agreement, “Cause” shall mean: (i) Employee’s engagement\nin any conduct which, in Company’s reasonable determination, constitutes gross misconduct, or is illegal, unethical, improper provided such conduct\nbrings detrimental notoriety or material harm to Company; (ii) gross negligence or willful misconduct; (iii) the Company has good reason to believe\nthat Employee has committed a felony or a crime involving moral turpitude; (iv) a material breach of a material provision of this Agreement by\nEmployee, or (v) failure of Employee to follow a written directive of the Chief Executive Bear or the Board of Directors within thirty (30) days after\nreceiving such notice, provided that such directive is reasonable in scope or is otherwise within the Chief Executive Bear’s or the Board’s reasonable\nbusiness judgment, and is reasonably within Employee’s control; provided Employee does not cure said conduct or breach (to the extent curable)\nwithin thirty (30) days after the Chief Executive Bear or the Board of Directors provides Employee with written notice of said conduct or breach. In\nthe event of termination with cause, the Employee will be afforded an opportunity prior to the actual date of termination to discuss the matter with\nthe Company.\n(d) By the Employee with or without Good Reason. For purposes of this Agreement, “Good Reason” shall mean a material\nbreach of a material provision of this Agreement by Company, provided Company does not cure said breach within thirty (30) days after Employee\nprovides the Board of Directors with written notice of the breach.\n4\n4.2 Impact of Termination.\n(a) Survival of Covenants. Upon termination of this Agreement, all rights and obligations of the parties hereunder shall cease,\nexcept termination of employment pursuant to Section 4 or otherwise shall not terminate or otherwise affect the rights and obligations of the parties\npursuant to Sections 5 through 13 hereof.\n(b) Severance. In the event during the Employment Period (i) the Company terminates Employee’s employment without Cause\npursuant to Section 4.1(c) or (ii) the Employee terminates his employment for Good Reason pursuant to Section 4.1(d), the Company shall continue\nhis base salary for a period of twelve (12) months from termination, such payments to be reduced by the amount of any compensation from a\nsubsequent employer during such period. Employee shall accept these payments in full discharge of all obligations of any kind which Company has\nto him except obligations, if any (i) for post-employment benefits expressly provided under this Agreement and/or at law, (ii) to repurchase any\ncapital stock of Company owned by Employee (as may or may not be set forth in the applicable stock agreement); (iii) for indemnification under\nseparate agreement by virtue of Employee’s status as a director/officer of the Company; or (iv) for benefits otherwise provided under the Deferred\nCompensation plan. Employee shall also be eligible to receive a bonus with respect to the year of termination as provided in Section 3(b).\n(c) Termination due to Expiration. If the Agreement expires either at the end of the Initial Term or at the end of any Renewal\nPeriod, due to the issuance of notice of non-renewal by either party under Section 2, then no severance under Section 4(b) shall be paid to the\nEmployee and his Employment shall terminate upon the anniversary date.\n(d) Upon termination or expiration of this Agreement for any reason, Employee shall be provided with such Welfare Benefits\ncontinuation notices, rights and obligations as may be required under federal or state law (including COBRA).\n5. Confidential Information.\n(a) Employee agrees to keep secret and confidential, and not to use or disclose to any third parties, except as directly required for\nEmployee to perform Employee’s employment responsibilities for Company, any of Company’s proprietary Confidential Information.\n(b) Employee acknowledges and confirms that certain data and other information (whether in human or machine readable form)\nthat comes into his possession or knowledge (whether before or after the date of this Agreement) and which was obtained from Company, or\nobtained by Employee for or on behalf of Company, and which is identified herein (the “Confidential Information”) is the secret, confidential\nproperty of Company. This Confidential Information includes, but is not limited to:\n(1) lists or other identification of customers or prospective customers of Company;\n5\n(2) lists or other identification of sources or prospective sources of Company’s products or components thereof, its landlords\nand prospective landlords and its current and prospective alliance, marketing and media partners (and key individuals employed\nor engaged by such parties);\n(3) all compilations of information, correspondence, designs, drawings, files, formulae, lists, machines, maps, methods,\nmodels, studies, surveys, scripts, screenplays, artwork, sketches, notes or other writings, plans, leases, records and reports;\n(4) financial, sales and marketing data relating to Company or to the industry or other areas pertaining to Company’s\nactivities and contemplated activities (including, without limitation, leasing, manufacturing, transportation, distribution and sales\ncosts and non-public pricing information);\n(5) equipment, materials, designs, procedures, processes, and techniques used in, or related to, the development,\nmanufacture, assembly, fabrication or other production and quality control of Company’s products, stores and services;\n(6) Company’s relations with its past, current and prospective customers, suppliers, landlords, alliance, marketing and media\npartners and the nature and type of products or services rendered to, received from or developed with such parties or prospective\nparties;\n(7) Company’s relations with its employees (including, without limitation, salaries, job classifications and skill levels); and\n(8) any other information designated by Company to be confidential, secret and/or proprietary (including without limitation,\ninformation provided by customers, suppliers and alliance partners of Company).\nNotwithstanding the foregoing, the term Confidential Information shall not consist of any data or other information which has been made publicly\navailable or otherwise placed in the public domain other than by Employee in violation of this Agreement.\n(c) During the Employment Period, Employee will not copy, reproduce or otherwise duplicate, record, abstract, summarize or\notherwise use, any papers, records, reports, studies, computer printouts, equipment, tools or other property owned by Company except as expressly\npermitted by Company in writing or required for the proper performance of his duties on behalf of Company.\n6. Post-Termination Restrictions. Employee recognizes that (i) Company has spent substantial money, time and effort over the years in\ndeveloping and solidifying its\n6\nrelationships with its customers, suppliers, landlords and alliance, marketing and media partners and in developing its Confidential Information;\n(ii) long-term customer, landlord, supplier and partner relationships often can be difficult to develop and require a significant investment of time,\neffort and expense; (iii) Company has paid its employees to, among other things, develop and preserve business information, customer, landlord,\nvendor and partner goodwill, customer, landlord, vendor and partner loyalty and customer, landlord, vendor and partner contacts for and on behalf of\nCompany; and (iv) Company is hereby agreeing to employ and pay Employee based upon Employee’s assurances and promises not to divert\ngoodwill of customers, landlords, suppliers or partners of Company, either individually or on a combined basis, or to put himself in a position\nfollowing Employee’s employment with Company in which the confidentiality of Company’s Confidential Information might somehow be\ncompromised. Accordingly, Employee agrees that during the Employment Period and for the period of time set forth below following termination of\nemployment, provided termination is in accordance with the terms of paragraph 4(b), (c), or (d), or due to expiration of the Agreement due to non-\nrenewal by either party, Employee will not, directly or indirectly (whether as owner, partner, consultant, employee or otherwise):\n(a) for one (1) year, engage in, assist or have an interest in, or enter the employment of or act as an agent, advisor or consultant\nfor, any person or entity which is engaged in, or will be engaged in, the development, manufacture, supplying or sale of a product, process, service or\ndevelopment which is competitive with a product, process, service or development on which Employee worked or with respect to which Employee\nhas or had access to Confidential Information while at Company (“Restricted Activity”), and which is located within the United States or within any\ncountry where the Company has established a retail presence either directly or through a franchise arrangement; or\n(b) for one (1) year, induce or attempt to induce any employee, consultant, partner or advisor of Company to accept employment\nor an affiliation with any entity engaged in a Restricted Activity;\nprovided, however, that following termination of his employment, Employee shall be entitled to be an employee of an entity that engages in\nRestricted Activity so long as: (i) the sale of stuffed plush toys is not a material business of the entity; (ii) Employee has no direct or personal\ninvolvement in the sale of stuffed plush toys ; and (iii) neither Employee, his relatives, nor any other entities with which he is affiliated own more\nthan 1% of the entity. As used in this paragraph 6, “material business” shall mean that either (A) greater than 10% of annual revenues received by\nsuch entity were derived from the sale of stuffed plush toys and related products, or (B) the annual revenues received or projected to be received by\nsuch entity from the sale of stuffed plush toys and related products exceeded $10 million, or (C) or the entity otherwise annually derives or is\nprojected to derive annual revenues in excess of $5 million from a retail concept that is similar in any material regard to Company.\n7. Acknowledgment Regarding Restrictions. Employee recognizes and agrees that the restraints contained in Section 6 (both separately\nand in total), including the geographic scope thereof in light of the Company’s marketing efforts, are reasonable and enforceable in view of\nCompany’s legitimate interests in protecting its Confidential Information and customer goodwill and the limited scope of the restrictions in\nSection 6.\n7\n8. Inventions.\nAny and all ideas, inventions, discoveries, patents, patent applications, continuation-in-part patent applications, divisional patent\napplications, technology, copyrights, derivative works, trademarks, service marks, improvements, trade secrets and the like (collectively,\n“Inventions”), which are developed, conceived, created, discovered, learned, produced and/or otherwise generated by Employee, whether\nindividually or otherwise, during the time that Employee is employed by Company, whether or not during working hours, that relate to (i) current\nand anticipated businesses and/or activities of Company, (ii) the current and anticipated research or development of Company, or (iii) any work\nperformed by Employee for Company, shall be the sole and exclusive property of Company, and Company shall own any and all right, title and\ninterest to such Inventions. Employee assigns, and agrees to assign to Company whenever so requested by Company, any and all right, title and\ninterest in and to any such Invention, at Company’s expense, and Employee agrees to execute any and all applications, assignments or other\ninstruments which Company deems desirable or necessary to protect such interests, at Company’s expense.\n(b) Employee acknowledges that as part of his work for the Company he may be asked to create, or contribute to the creation of,\ncomputer programs, documentation and other copyrightable works. Employee hereby agrees that any and all computer programs, documentation and\nother copyrightable materials that he has prepared or worked on for the Company, or is asked to prepare or work on by the Company, shall be treated\nas and shall be a “work made for hire,” for the exclusive ownership and benefit of Company according to the copyright laws of the United States,\nincluding, but not limited to, Sections 101 and 201 of Title 17 of the U.S . Code (“U.S .C.”) as well as according to similar foreign laws. Company\nshall have the exclusive right to register the copyrights in all such works in its name as the owner and author of such works and shall have the\nexclusive rights conveyed under 17 U.S.C. §§ 106 and 106A including, but not limited to, the right to make all uses of the works in which attribution\nor integrity rights may be implicated. Without in any way limiting the foregoing, to the extent the works are not treated as works made for hire under\nany applicable law, Employee hereby irrevocably assigns, transfers, and conveys to Company and its successors and assigns any and all worldwide\nright, title, and interest that Employee may now or in the future have in or to the works, including, but not limited to, all ownership, U.S . and foreign\ncopyrights, all treaty, convention, statutory, and common law rights under the law of any U.S. or foreign jurisdiction, the right to sue for past,\npresent, and future infringement, and moral, attribution, and integrity rights. Employee hereby expressly and forever irrevocably waives any and all\nrights that he may have arising under 17 U.S.C . §§ 106A, rights that may arise under any federal, state, or foreign law that conveys rights that are\nsimilar in nature to those conveyed under 17 U.S.C . §§ 106A, and any other type of moral right or droit moral.\n9. Company Property. Employee acknowledges that any and all notes, records, sketches, computer diskettes, training materials and other\ndocuments relating to Company obtained by or provided to Employee, or otherwise made, produced or compiled during the Employment Period,\nregardless of the type of medium in which they are preserved, are the sole and exclusive property of Company and shall be surrendered to Company\nupon Employee’s termination of employment and on demand at any time by Company.\n8\n10. Nondisparagement. Employee agrees that he will not in any way disparage Company or its affiliated entities, officers, or directors.\nFurther, Employee agrees that he will neither make nor solicit any comments, statements, or the like to the media or to third parties that may be\nconsidered to be derogatory or detrimental to the good name or business reputation of Company or any of its affiliated entities, officers or directors.\n11. Non-Waiver of Rights. Either party’s failure to enforce at any time any of the provisions of this Agreement or to require at any time\nperformance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the\nvalidity of this Agreement, or any part hereof, or the right of the non-breaching party thereafter to enforce each and every provision in accordance\nwith the terms of this Agreement.\n12. Company’s Right to Injunctive Relief. In the event of a breach or threatened breach of any of Employee’s duties and obligations\nunder the terms and provisions of Sections 5, 6, or 8 hereof, Company shall be entitled, in addition to any other legal or equitable remedies it may\nhave in connection therewith (including any right to damages that it may suffer), to temporary, preliminary and permanent injunctive relief\nrestraining such breach or threatened breach. Employee hereby expressly acknowledges that the harm which might result to Company’s business as a\nresult of any noncompliance by Employee with any of the provisions of Sections 5, 6 or 8 would be largely irreparable. Employee specifically agrees\nthat if there is a question as to the enforceability of any of the provisions of Sections 5, 6 or 8 hereof, Employee will not engage in any conduct\ninconsistent with or contrary to such Sections until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n13. Judicial Enforcement. If any provision of this Agreement is adjudicated to be invalid or unenforceable under applicable law in any\njurisdiction, the validity or enforceability of the remaining provisions thereof shall be unaffected as to such jurisdiction and such adjudication shall\nnot affect the validity or enforceability of such provisions in any other jurisdiction. To the extent that any provision of this Agreement is adjudicated\nto be invalid or unenforceable because it is overbroad, that provision shall not be void but rather shall be limited only to the extent required by\napplicable law and enforced as so limited. The parties expressly acknowledge and agree that this Section is reasonable in view of the parties’\nrespective interests.\n14. Employee Representations. Employee represents that the execution and delivery of the Agreement and Employee’s employment with\nCompany do not violate any previous employment agreement or other contractual obligation of Employee. Employee further represents and agrees\nthat he will not, during his employment with Company, improperly use or disclose any proprietary information or trade secrets of former employers\nand will not bring on to the premises of the Company any unpublished documents or any property belonging to his former employers unless\nconsented to in writing by such employers.\n15. Amendments. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing\nspecifically referring hereto, and signed by the parties hereto. This Agreement supersedes all prior agreements and understandings\n9\nbetween Employee and Company to the extent that any such agreements or understandings conflict with the terms of this Agreement.\n16. Assignments. This Agreement shall be freely assignable by Company to and shall inure to the benefit of, and be binding upon,\nCompany, its affiliates, successors and assigns and/or any other entity which shall succeed to the business presently being conducted by Company.\nBeing a contract for personal services, neither this Agreement nor any rights hereunder shall be assigned by Employee.\n17. Choice of Forum and Governing Law. In light of Company’s substantial contacts with the State of Missouri, the parties’ interests in\nensuring that disputes regarding the interpretation, validity and enforceability of this Agreement are resolved on a uniform basis, and Company’s\nexecution of, and the making of, this Agreement in Missouri, the parties agree that: (i) any litigation involving any noncompliance with or breach of\nthe Agreement, or regarding the interpretation, validity and/or enforceability of the Agreement, shall be filed and conducted in the state or federal\ncourts in St. Louis City or County, Missouri; and (ii) the Agreement shall be interpreted in accordance with and governed by the laws of the State of\nMissouri, without regard for any conflict of law principles.\n18. Notices. Except as otherwise provided for herein, any notices to be given by either party to the other shall be affected by personal\ndelivery in writing or by mail, registered or certified, postage prepaid, with return receipt requested. Mailed notices shall be addressed as follows:\na.\nIf to Company:\nMaxine Clark\nChief Executive Bear\n1954 Innerbelt Business Center\nSt. Louis, MO 63114\nb.\nIf to Employee:\n18. Arbitration. Any controversy or claim arising out of, or relating to this Agreement, the breach thereof, or Employee’s\nemployment by Company, shall, at Company’s sole option, be settled by binding arbitration in the County of St. Louis in accordance with\nthe rules then in force of the American Arbitration Association, and judgment upon the award rendered may be entered and enforced in\nany court having jurisdiction thereof. The controversies or claims subject to arbitration at Company’s option under this Agreement include,\nwithout limitation, those arising under Title VII of the Civil Rights Act of 1964, 42 U.S .C . Section 1981, the Age Discrimination in\nEmployment Act, the Americans with Disabilities Act, the Family and medical Leave Act, the Worker Adjustment and Retraining\n10\nNotification Act, the Missouri Human Rights Act, local laws governing employment, and the statutory and/or common law of contract and\ntort. In the event Employee commences any action in court which Company has the right to submit to binding arbitration, Company shall\nhave sixty (60) days from the date of service of a summons and complaint upon Company to direct in writing that all or any part of the\ndispute be arbitrated. Any remedy available in any court action shall also be available in arbitration.\n19. Headings. Section headings are provided in this Agreement for convenience only and shall not be deemed to substantively alter the\ncontent of such sections.\nPLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT EMPLOYEE (A) HAS\nRECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) HAS READ THIS\nAGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE\nAGREEMENT TO ASK ANY QUESTIONS EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY\nANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE’S RIGHTS AND OBLIGATIONS UNDER THE\nAGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nTHIS AGREEMENT CONTAINS A BINDING ARBIRTARTION PROVISION WHICH MAY BE ENFORCED BY\nCOMPANY.\n/s/ David Finnegan\nDave Finnegan\nAddress:\nBUILD-A-BEAR WORKSHOP, INC.\nBy: /s/ Maxine Clark\nName: Maxine Clark\nTitle: Chief Executive Bear\n11	EX-10.6 2 dex106.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nExhibit 10.6\nEMPILOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nThis Employment, Confidentiality and Noncompete Agreement (“Agreement”) is made and entered into effective as of the 10t day of\nJanuary, 2007, by and between Build-A-Bear Workshop, Inc., a Delaware corporation (“Company”), and Dave Finnegan (“Employee”).\nWHEREAS, Company desires to employ and Employee desires to be employed as the Chief Information Bear of Company.\nWHEREAS, Company has pioneered the retail concept of “make your own” stuff plush toys, including animals and dolls, and is engaged\nin, among other things, the business of production, marketing, promotion and distribution of plush stuff toys, clothing, accessories and similar items,\nincluding without limitation, the ownership, management, franchising, leasing and development of retail stores in which the basic operation is the\nselling of such items, and the promotion of the related concepts and characters through merchandising and mass media. The Company is\nheadquartered and its principal place of business are located in, and this Agreement is being signed in, St. Louis, Missouri.\nWHEREAS, Company conducts business in selected locations throughout the United States and internationally through franchise\narrangements.\nWHEREAS, Company has expended a great deal of time, money and effort to develop and maintain its proprietary Confidential\nInformation (as defined herein) which is material to Company and which, if misused or disclosed, could be very harmful to Company’s business.\nWHEREAS, the success of Company depends to a substantial extent upon the protection of its Confidential Information and goodwill by\nall of its employees.\nWHEREAS, Company compensates its employees to, among other things, develop and preserve goodwill with its customers, landlords,\nsuppliers and partners on Company’s behalf and business information for Company’s ownership and use.\nWHEREAS, if Employee were to leave Company, Company, in all fairness, would need certain protections in order to prevent\ncompetitors of Company from gaining an unfair competitive advantage over Company or diverting goodwill from Company, or to prevent Employee\nfrom misusing or misappropriating the Confidential Information.\nNOW, THEREFORE, in consideration of the compensation and other benefits of Employee’s employment by Company and the recitals,\nmutual covenants and agreements hereinafter set forth, Employee and Company agree as follows:\n1. Employment Services.\n(a) Employee is hereby employed by Company, and Employee hereby accepts such employment, upon the terms and conditions\nhereinafter set forth. Employee shall serve\nas Chief Information Bear, during the Employment Period, on a full-time basis. Employee shall carry out such duties as are assigned to him by\nCompany’s Chief Executive Bear.\n(b) Employee agrees that throughout Employee’s employment with Company, Employee will (i) faithfully render such services as\nmay be delegated to Employee by Company, (ii) devote substantially all of Employee’s entire business time, good faith, best efforts, ability, skill and\nattention to Company’s business, and (iii) follow and act in accordance with all of the rules, policies and procedures of Company, including but not\nlimited to working hours, sales and promotion policies, and specific Company rules. Company further agrees that it shall not during the Initial Term\nof this Agreement require Employee to relocate his residence outside of the St. Louis metropolitan area.\n(c) “Company” means Build-A-Bear Workshop, Inc. or one of its Subsidiaries, whichever is Employee’s employer. The term\n“Subsidiary” means any corporation, joint venture or other business organization in which Build-A-Bear Workshop, Inc. now or hereafter, directly or\nindirectly, owns or controls more than fifty percent (50%) interest.\n2. Term of Employment. The term of this Agreement shall commence on the date first set forth above, and shall end on the third\nanniversary hereof, unless sooner terminated as provided in Section 4 hereof (the “Initial Term”). Following the Initial Term, this Agreement shall\nrenew for successive three-year periods (each a “Renewal Period”; collectively, the Initial Term and each Renewal Period, the “Employment\nPeriod”), unless either party notifies the other party of its decision not to renew the Agreement no later than ninety (90) days prior to the third\nanniversary date, or unless the Agreement is sooner terminated as provided in Section 4 hereof. For the avoidance of doubt, if either party provides\nnotice of non-renewal of the Agreement no later than ninety (90) days prior to the third anniversary date (either at the end of the Initial Term or at the\nend of any Renewal Period), then the Agreement shall expire on that anniversary date.\n3. Compensation.\n(a) Base Salary. During the Employment Period, Company shall pay Employee as compensation for his services an annual base\nsalary of not less than Two Hundred Twenty Thousand Dollars ($220,000), payable in accordance with Company’s usual practices. Employee’s\nannual base salary rate shall be reviewed by Company’s Compensation Committee at least annually for increase following each fiscal year so that\nEmployee’s salary will be commensurate for similarly situated executives with firms similarly situated to Company; provided, however, that if\nEmployee’s individualized performance targets (set for each fiscal year by Employee and Employee’s team leader) are achieved, Employee’s annual\nbase salary rate shall not be subject to decrease at any time during the Employment Period and shall be subject to annual increase by no less than the\naverage percentage increase given to all other Company executive employees for such fiscal year (the “Average Increase”).\n(b) Bonus. Should Company exceed its sales, profits and other objectives for any fiscal year, Employee shall be eligible to\nreceive a bonus for such fiscal year in the amount as determined by the Compensation Committee of the Board of Directors; provided however the\n2\npotential bonus opportunity for Employee in any given fiscal year will be set by the Compensation Committee such that, if the Company exceeds its\nobjectives, the Company will pay Employee not less than thirty five percent (35%) of Employee’s annual base pay for such fiscal year. Any bonus\npayable to Employee will be payable in cash, stock or stock options, or combination thereof, all as determined by the Board of Directors or any duly\nauthorized committee thereof, and unless a different payout schedule is applicable for all executive employees of the Company, any such bonus\npayment will be payable in a single, lump sum payment. In the event of termination of this Agreement because of Employee’s death or disability (as\ndefined by Section 4(b)), termination by the Company without Cause pursuant to Section 4.1(c), or pursuant to Employee’s right to terminate this\nAgreement for Good Reason under Section 4.1(d), the bonus criteria shall not change and any bonus shall be pro-rated based on the number of full\ncalendar weeks during the applicable fiscal year during which Employee was employed hereunder.\nSuch bonus, if any, shall be payable after Company’s accountants have determined the sales and profits and have issued their\naudit report with respect thereto for the applicable fiscal year, which determination shall be binding on the parties. Any such bonus shall be paid\nwithin seventy-five (75) days after the end of each calendar year, regardless of Employee’s employment status at the time payment is due. If timely\npayment is not made, the Company shall indemnify the Employee against any additional tax liability that the Employee may incur proximately as a\nresult of the payment being made after the seventy-five day period.\n(c) Stock Options. Employee may have been granted in the past, and/or may in the future be granted, a certain number of\nrestricted shares and/or stock options to purchase shares of Company’s common stock (the “Common Stock”), pursuant to the terms set forth more\nparticularly in the stock option and/or restricted stock agreements (“Stock Agreement”) used in connection with the Build-A-Bear Workshop, Inc.\n2000 Stock Option Plan (or any successor plan) (the “Plan”). The Plan and applicable Stock Agreement(s) shall govern any grants of restricted\nshares and/or stock options to purchase shares of Company’s Common Stock.\n(d) Discounts. Employee and his immediate family will be entitled to a 20% discount for all merchandise purchased at\nCompany’s stores.\n(e) Vacation. Employee shall be entitled to paid vacation and paid sick leave on the same basis as may from time to time apply to\nother Company executive employees generally. Vacations will be scheduled with the approval of Company’s Chief Executive Bear, who may block\nout certain periods of time during which vacations may not be taken, including preceding Valentine’s Day, preceding Easter, from November 1\nthrough December 31, during Company inventory, and just prior to store openings. One-third of one year’s vacation (or any part of it) may be carried\nover to the next year; provided that such carry over is used in the first calendar quarter of the next year. Unless approved by the Chief Executive\nBear, all unused vacation shall be forfeited. No more than two weeks of vacation can be taken at one time. Employee shall also be entitled to one\n(1) additional day per calendar year of paid vacation to be taken in the month of his birthday.\n(f) Other. Employee shall be eligible for such other perquisites as may from time to time be awarded to Employee by Company\npayable at such times and in such amounts\nas Company, in its sole discretion, may determine. All such compensation shall be subject to customary withholding taxes and other employment\ntaxes as required with respect thereto. During the Employment Period, Employee shall also qualify for all rights and benefits for which Employee\nmay be eligible under any benefit plans including group life, medical, health, dental and/or disability insurance or other benefits (“Welfare Benefits”)\nwhich are provided for employees generally at his then current location of employment. Employee may, in his sole discretion, decline any perquisite,\nWelfare Benefit, proposed annual salary increase, or bonus payment.\n4. Termination of Employment. Prior to the expiration of the Employment Period, this Agreement and Employee’s employment may be\nterminated as follows:\n(a) Upon Employee’s death;\n(b) By the Company upon thirty (30) day’s prior written notice to Employee in the event Employee, by reason of permanent\nphysical or mental disability (which shall be determined by a physician selected by Company or its insurers and acceptable to Employee or\nEmployee’s legal representative (such agreement as to acceptability not to be withheld unreasonably), shall be unable to perform the essential\nfunctions of his position, with or without reasonable accommodation, for six (6) consecutive months; provided, however, Employee shall not be\nterminated due to permanent physical or mental disability unless or until said disability also entitles Employee to benefits under such disability\ninsurance policy as is provided to Employee by Company, provided however that continued entitlement to disability benefits coverage shall be not\nrequired where Employee fails to qualify for benefits coverage continuation due to an act or omission by Employee.\n(c) By the Company with or without Cause. For the purposes of this Agreement, “Cause” shall mean: (i) Employee’s engagement\nin any conduct which, in Company’s reasonable determination, constitutes gross misconduct, or is illegal, unethical, improper provided such conduct\nbrings detrimental notoriety or material harm to Company; (ii) gross negligence or willful misconduct; (iii) the Company has good reason to believe\nthat Employee has committed a felony or a crime involving moral turpitude; (iv) a material breach of a material provision of this Agreement by\nEmployee, or (v) failure of Employee to follow a written directive of the Chief Executive Bear or the Board of Directors within thirty (30) days after\nreceiving such notice, provided that such directive is reasonable in scope or is otherwise within the Chief Executive Bear’s or the Board’s reasonable\nbusiness judgment, and is reasonably within Employee’s control; provided Employee does not cure said conduct or breach (to the extent curable)\nwithin thirty (30) days after the Chief Executive Bear or the Board of Directors provides Employee with written notice of said conduct or breach. In\nthe event of termination with cause, the Employee will be afforded an opportunity prior to the actual date of termination to discuss the matter with\nthe Company.\n(d) By the Employee with or without Good Reason. For purposes of this Agreement, “Good Reason” shall mean a material\nbreach of a material provision of this Agreement by Company, provided Company does not cure said breach within thirty (30) days after Employee\nprovides the Board of Directors with written notice of the breach.\n4.2 Impact of Termination.\n(a) Survival of Covenants. Upon termination of this Agreement, all rights and obligations of the parties hereunder shall cease,\nexcept termination of employment pursuant to Section 4 or otherwise shall not terminate or otherwise affect the rights and obligations of the parties\npursuant to Sections 5 through 13 hereof.\n(b) Severance. In the event during the Employment Period (i) the Company terminates Employee’s employment without Cause\npursuant to Section 4.1(c) or (ii) the Employee terminates his employment for Good Reason pursuant to Section 4.1(d), the Company shall continue\nhis base salary for a period of twelve (12) months from termination, such payments to be reduced by the amount of any compensation from a\nsubsequent employer during such period. Employee shall accept these payments in full discharge of all obligations of any kind which Company has\nto him except obligations, if any (i) for post-employment benefits expressly provided under this Agreement and/or at law, (ii) to repurchase any\ncapital stock of Company owned by Employee (as may or may not be set forth in the applicable stock agreement); (iii) for indemnification under\nseparate agreement by virtue of Employee’s status as a director/officer of the Company; or (iv) for benefits otherwise provided under the Deferred\nCompensation plan. Employee shall also be eligible to receive a bonus with respect to the year of termination as provided in Section 3(b).\n(c) Termination due to Expiration. If the Agreement expires either at the end of the Initial Term or at the end of any Renewal\nPeriod, due to the issuance of notice of non-renewal by either party under Section 2, then no severance under Section 4(b) shall be paid to the\nEmployee and his Employment shall terminate upon the anniversary date.\n(d) Upon termination or expiration of this Agreement for any reason, Employee shall be provided with such Welfare Benefits\ncontinuation notices, rights and obligations as may be required under federal or state law (including COBRA).\n5. Confidential Information.\n(a) Employee agrees to keep secret and confidential, and not to use or disclose to any third parties, except as directly required for\nEmployee to perform Employee’s employment responsibilities for Company, any of Company’s proprietary Confidential Information.\n(b) Employee acknowledges and confirms that certain data and other information (whether in human or machine readable form)\nthat comes into his possession or knowledge (whether before or after the date of this Agreement) and which was obtained from Company, or\nobtained by Employee for or on behalf of Company, and which is identified herein (the “Confidential Information”) is the secret, confidential\nproperty of Company. This Confidential Information includes, but is not limited to:\n(1) lists or other identification of customers or prospective customers of Company;\n5\n(2) lists or other identification of sources or prospective sources of Company’s products or components thereof, its landlords\nand prospective landlords and its current and prospective alliance, marketing and media partners (and key individuals employed\nor engaged by such parties);\n(3) all compilations of information, correspondence, designs, drawings, files, formulae, lists, machines, maps, methods,\nmodels, studies, surveys, scripts, screenplays, artwork, sketches, notes or other writings, plans, leases, records and reports;\n(4) financial, sales and marketing data relating to Company or to the industry or other areas pertaining to Company’s\nactivities and contemplated activities (including, without limitation, leasing, manufacturing, transportation, distribution and sales\ncosts and non-public pricing information);\n(5) equipment, materials, designs, procedures, processes, and techniques used in, or related to, the development,\nmanufacture, assembly, fabrication or other production and quality control of Company’s products, stores and services;\n(6) Company’s relations with its past, current and prospective customers, suppliers, landlords, alliance, marketing and media\npartners and the nature and type of products or services rendered to, received from or developed with such parties or prospective\nparties;\n(7) Company’s relations with its employees (including, without limitation, salaries, job classifications and skill levels); and\n(8) any other information designated by Company to be confidential, secret and/or proprietary (including without limitation,\ninformation provided by customers, suppliers and alliance partners of Company).\nNotwithstanding the foregoing, the term Confidential Information shall not consist of any data or other information which has been made publicly\navailable or otherwise placed in the public domain other than by Employee in violation of this Agreement.\n(c) During the Employment Period, Employee will not copy, reproduce or otherwise duplicate, record, abstract, summarize or\notherwise use, any papers, records, reports, studies, computer printouts, equipment, tools or other property owned by Company except as expressly\npermitted by Company in writing or required for the proper performance of his duties on behalf of Company.\n6. Post-Termination Restrictions. Employee recognizes that (i) Company has spent substantial money, time and effort over the years in\ndeveloping and solidifying its\nrelationships with its customers, suppliers, landlords and alliance, marketing and media partners and in developing its Confidential Information;\n(ii) long-term customer, landlord, supplier and partner relationships often can be difficult to develop and require a significant investment of time,\neffort and expense; (iii) Company has paid its employees to, among other things, develop and preserve business information, customer, landlord,\nvendor and partner goodwill, customer, landlord, vendor and partner loyalty and customer, landlord, vendor and partner contacts for and on behalf of\nCompany; and (iv) Company is hereby agreeing to employ and pay Employee based upon Employee’s assurances and promises not to divert\ngoodwill of customers, landlords, suppliers or partners of Company, either individually or on a combined basis, or to put himself in a position\nfollowing Employee’s employment with Company in which the confidentiality of Company’s Confidential Information might somehow be\ncompromised. Accordingly, Employee agrees that during the Employment Period and for the period of time set forth below following termination of\nemployment, provided termination is in accordance with the terms of paragraph 4(b), (c), or (d), or due to expiration of the Agreement due to non-\nrenewal by either party, Employee will not, directly or indirectly (whether as owner, partner, consultant, employee or otherwise):\n(a) for one (1) year, engage in, assist or have an interest in, or enter the employment of or act as an agent, advisor or consultant\nfor, any person or entity which is engaged in, or will be engaged in, the development, manufacture, supplying or sale of a product, process, service or\ndevelopment which is competitive with a product, process, service or development on which Employee worked or with respect to which Employee\nhas or had access to Confidential Information while at Company (“Restricted Activity”), and which is located within the United States or within any\ncountry where the Company has established a retail presence either directly or through a franchise arrangement; or\n(b) for one (1) year, induce or attempt to induce any employee, consultant, partner or advisor of Company to accept employment\nor an affiliation with any entity engaged in a Restricted Activity;\nprovided, however, that following termination of his employment, Employee shall be entitled to be an employee of an entity that engages in\nRestricted Activity so long as: (i) the sale of stuffed plush toys is not a material business of the entity; (ii) Employee has no direct or personal\ninvolvement in the sale of stuffed plush toys ; and (iii) neither Employee, his relatives, nor any other entities with which he is affiliated own more\nthan 1% of the entity. As used in this paragraph 6, “material business” shall mean that either (A) greater than 10% of annual revenues received by\nsuch entity were derived from the sale of stuffed plush toys and related products, or (B) the annual revenues received or projected to be received by\nsuch entity from the sale of stuffed plush toys and related products exceeded $10 million, or (C) or the entity otherwise annually derives or is\nprojected to derive annual revenues in excess of $5 million from a retail concept that is similar in any material regard to Company.\n7. Acknowledgment Regarding Restrictions. Employee recognizes and agrees that the restraints contained in Section 6 (both separately\nand in total), including the geographic scope thereof in light of the Company’s marketing efforts, are reasonable and enforceable in view of\nCompany’s legitimate interests in protecting its Confidential Information and customer goodwill and the limited scope of the restrictions in\nSection 6.\n8. Inventions.\nAny and all ideas, inventions, discoveries, patents, patent applications, continuation-in-part patent applications, divisional patent\napplications, technology, copyrights, derivative works, trademarks, service marks, improvements, trade secrets and the like (collectively,\n“Inventions™), which are developed, conceived, created, discovered, learned, produced and/or otherwise generated by Employee, whether\nindividually or otherwise, during the time that Employee is employed by Company, whether or not during working hours, that relate to (i) current\nand anticipated businesses and/or activities of Company, (ii) the current and anticipated research or development of Company, or (iii) any work\nperformed by Employee for Company, shall be the sole and exclusive property of Company, and Company shall own any and all right, title and\ninterest to such Inventions. Employee assigns, and agrees to assign to Company whenever so requested by Company, any and all right, title and\ninterest in and to any such Invention, at Company’s expense, and Employee agrees to execute any and all applications, assignments or other\ninstruments which Company deems desirable or necessary to protect such interests, at Company’s expense.\n(b) Employee acknowledges that as part of his work for the Company he may be asked to create, or contribute to the creation of,\ncomputer programs, documentation and other copyrightable works. Employee hereby agrees that any and all computer programs, documentation and\nother copyrightable materials that he has prepared or worked on for the Company, or is asked to prepare or work on by the Company, shall be treated\nas and shall be a “work made for hire,” for the exclusive ownership and benefit of Company according to the copyright laws of the United States,\nincluding, but not limited to, Sections 101 and 201 of Title 17 of the U.S. Code (“U.S.C.”) as well as according to similar foreign laws. Company\nshall have the exclusive right to register the copyrights in all such works in its name as the owner and author of such works and shall have the\nexclusive rights conveyed under 17 U.S.C. §§ 106 and 106A including, but not limited to, the right to make all uses of the works in which attribution\nor integrity rights may be implicated. Without in any way limiting the foregoing, to the extent the works are not treated as works made for hire under\nany applicable law, Employee hereby irrevocably assigns, transfers, and conveys to Company and its successors and assigns any and all worldwide\nright, title, and interest that Employee may now or in the future have in or to the works, including, but not limited to, all ownership, U.S. and foreign\ncopyrights, all treaty, convention, statutory, and common law rights under the law of any U.S. or foreign jurisdiction, the right to sue for past,\npresent, and future infringement, and moral, attribution, and integrity rights. Employee hereby expressly and forever irrevocably waives any and all\nrights that he may have arising under 17 U.S.C. §8§ 106A, rights that may arise under any federal, state, or foreign law that conveys rights that are\nsimilar in nature to those conveyed under 17 U.S.C. §§ 106A, and any other type of moral right or droit moral.\ndocuments relating to Company obtained by or provided to Employee, or otherwise made, produced or compiled during the Employment Period,\nregardless of the type of medium in which they are preserved, are the sole and exclusive property of Company and shall be surrendered to Company\nupon Employee’s termination of employment and on demand at any time by Company.\n8\n10. Nondisparagement. Employee agrees that he will not in any way disparage Company or its affiliated entities, officers, or directors.\nFurther, Employee agrees that he will neither make nor solicit any comments, statements, or the like to the media or to third parties that may be\nconsidered to be derogatory or detrimental to the good name or business reputation of Company or any of its affiliated entities, officers or directors.\n11. Non-Waiver of Rights. Either party’s failure to enforce at any time any of the provisions of this Agreement or to require at any time\nperformance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the\nvalidity of this Agreement, or any part hereof, or the right of the non-breaching party thereafter to enforce each and every provision in accordance\nwith the terms of this Agreement.\nunder the terms and provisions of Sections 5, 6, or 8 hereof, Company shall be entitled, in addition to any other legal or equitable remedies it may\nhave in connection therewith (including any right to damages that it may suffer), to temporary, preliminary and permanent injunctive relief\nrestraining such breach or threatened breach. Employee hereby expressly acknowledges that the harm which might result to Company’s business as a\nresult of any noncompliance by Employee with any of the provisions of Sections 5, 6 or 8 would be largely irreparable. Employee specifically agrees\nthat if there is a question as to the enforceability of any of the provisions of Sections 5, 6 or 8 hereof, Employee will not engage in any conduct\ninconsistent with or contrary to such Sections until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n13. Judicial Enforcement. If any provision of this Agreement is adjudicated to be invalid or unenforceable under applicable law in any\njurisdiction, the validity or enforceability of the remaining provisions thereof shall be unaffected as to such jurisdiction and such adjudication shall\nnot affect the validity or enforceability of such provisions in any other jurisdiction. To the extent that any provision of this Agreement is adjudicated\nto be invalid or unenforceable because it is overbroad, that provision shall not be void but rather shall be limited only to the extent required by\napplicable law and enforced as so limited. The parties expressly acknowledge and agree that this Section is reasonable in view of the parties’\nrespective interests.\n14. Employee Representations. Employee represents that the execution and delivery of the Agreement and Employee’s employment with\nCompany do not violate any previous employment agreement or other contractual obligation of Employee. Employee further represents and agrees\nthat he will not, during his employment with Company, improperly use or disclose any proprietary information or trade secrets of former employers\nand will not bring on to the premises of the Company any unpublished documents or any property belonging to his former employers unless\nconsented to in writing by such employers.\n15. Amendments. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing\nspecifically referring hereto, and signed by the parties hereto. This Agreement supersedes all prior agreements and understandings\n9\nbetween Employee and Company to the extent that any such agreements or understandings conflict with the terms of this Agreement.\n16. Assignments. This Agreement shall be freely assignable by Company to and shall inure to the benefit of, and be binding upon,\nCompany, its affiliates, successors and assigns and/or any other entity which shall succeed to the business presently being conducted by Company.\nBeing a contract for personal services, neither this Agreement nor any rights hereunder shall be assigned by Employee.\n17. Choice of Forum and Governing Law. In light of Company’s substantial contacts with the State of Missouri, the parties’ interests in\nensuring that disputes regarding the interpretation, validity and enforceability of this Agreement are resolved on a uniform basis, and Company’s\nexecution of, and the making of, this Agreement in Missouri, the parties agree that: (i) any litigation involving any noncompliance with or breach of\nthe Agreement, or regarding the interpretation, validity and/or enforceability of the Agreement, shall be filed and conducted in the state or federal\ncourts in St. Louis City or County, Missouri; and (ii) the Agreement shall be interpreted in accordance with and governed by the laws of the State of\nMissouri, without regard for any conflict of law principles.\n18. Notices. Except as otherwise provided for herein, any notices to be given by either party to the other shall be affected by personal\ndelivery in writing or by mail, registered or certified, postage prepaid, with return receipt requested. Mailed notices shall be addressed as follows:\na. If to Company:\nMaxine Clark\nChief Executive Bear\n1954 Innerbelt Business Center\nSt. Louis, MO 63114\nb. If to Employee:\n18. Arbitration. Any controversy or claim arising out of, or relating to this Agreement, the breach thereof, or Employee’s\nemployment by Company, shall, at Company’s sole option, be settled by binding arbitration in the County of St. Louis in accordance with\nthe rules then in force of the American Arbitration Association, and judgment upon the award rendered may be entered and enforced in\nany court having jurisdiction thereof. The controversies or claims subject to arbitration at Company’s option under this Agreement include,\nwithout limitation, those arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 1981, the Age Discrimination in\nEmployment Act, the Americans with Disabilities Act, the Family and medical Leave Act, the Worker Adjustment and Retraining\n10\nNotification Act, the Missouri Human Rights Act, local laws governing employment, and the statutory and/or common law of contract and\ntort. In the event Employee commences any action in court which Company has the right to submit to binding arbitration, Company shall\nhave sixty (60) days from the date of service of a summons and complaint upon Company to direct in writing that all or any part of the\ndispute be arbitrated. Any remedy available in any court action shall also be available in arbitration.\n19. Headings. Section headings are provided in this Agreement for convenience only and shall not be deemed to substantively alter the\ncontent of such sections.\nPLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT EMPLOYEE (A) HAS\nRECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) HAS READ THIS\nAGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE\nAGREEMENT TO ASK ANY QUESTIONS EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY\nANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE’S RIGHTS AND OBLIGATIONS UNDER THE\nAGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nTHIS AGREEMENT CONTAINS A BINDING ARBIRTARTION PROVISION WHICH MAY BE ENFORCED BY\nCOMPANY.\n/s/ David Finnegan\nDave Finnegan\nAddress:\nBUILD-A-BEAR WORKSHOP, INC.\nBy: /s/ Maxine Clark\nName: Maxine Clark\nTitle: Chief Executive Bear\n11	EX-10.6 2 dex106.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nExhibit 10.6\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nThis Employment, Confidentiality and Noncompete Agreement ("Agreement") is made and entered into effective as of the 10th day\nof\nJanuary, 2007, by and between Build-A-Bear Workshop, Inc., a Delaware corporation ("Company"), and Dave Finnegan ("Employee").\nWHEREAS, Company desires to employ and Employee desires to be employed as the Chief Information Bear of Company.\nWHEREAS, Company has pioneered the retail concept of "'make your own" stuff plush toys, including animals and dolls, and is engaged\nin, among other things, the business of production, marketing, promotion and distribution of plush stuff toys, clothing, accessories and similar items,\nincluding without limitation, the ownership, management, franchising, leasing and development of retail stores in which the basic operation is the\nselling of such items, and the promotion of the related concepts and characters through merchandising and mass media. The Company is\nheadquartered and its principal place of business are located in, and this Agreement is being signed in, St. Louis, Missouri.\nWHEREAS, Company conducts business in selected locations throughout the United States and internationally through franchise\narrangements.\nWHEREAS, Company has expended a great deal of time, money and effort to develop and maintain its proprietary Confidential\nInformation (as defined herein) which is material to Company and which, if misused or disclosed, could be very harmful to Company's business.\nWHEREAS, the success of Company depends to a substantial extent upon the protection of its Confidential Information and goodwill by\nall of its employees.\nWHEREAS, Company compensates its employees to, among other things, develop and preserve goodwill with its customers, landlords,\nsuppliers and partners on Company's behalf and business information for Company's ownership and use.\nWHEREAS, if Employee were to leave Company, Company, in all fairness, would need certain protections in order to prevent\ncompetitors of Company from gaining an unfair competitive advantage over Company or diverting goodwill from Company, or to prevent Employee\nfrom misusing or misappropriating the Confidential Information.\nNOW, THEREFORE, in consideration of the compensation and other benefits of Employee's employment by Company and the recitals,\nmutual covenants and agreements hereinafter set forth, Employee and Company agree as follows:\n1. Employment Services.\n(a) Employee is hereby employed by Company, and Employee hereby accepts such employment, upon the terms and conditions\nhereinafter set forth. Employee shall serve\nas Chief Information Bear, during the Employment Period, on a full-time basis. Employee shall carry out such duties as are assigned to him by\nCompany's Chief Executive Bear.\n(b) Employee agrees that throughout Employee's employment with Company, Employee will (i) faithfully render such services\nas\nmay be delegated to Employee by Company, (ii) devote substantially all of Employee's entire business time, good faith, best efforts, ability, skill and\nattention\nto\nCompany's\nbusiness,\nand\n(iii)\nfollow\nand\nact\nin\naccordance\nwith\nall\nof\nthe\nrules,\npolicies\nand\nprocedures\nof\nCompany,\nincluding\nbut\nnot\nlimited to working hours, sales and promotion policies, and specific Company rules. Company further agrees that it shall not during the Initial Term\nof this Agreement require Employee to relocate his residence outside of the St. Louis metropolitan area.\n(c) "Company" means Build-A-Bear Workshop, Inc. or one of its Subsidiaries, whichever is Employee's employer. The term\n"Subsidiary" means any corporation, joint venture or other business organization in which Build-A-Bear Workshop, Inc. now or hereafter, directly or\nindirectly, owns or controls more than fifty percent (50%) interest.\n2. Term of Employment. The term of this Agreement shall commence on the date first set forth above, and shall end on the third\nanniversary hereof, unless sooner terminated as provided in Section 4 hereof (the "Initial Term"). Following the Initial Term, this Agreement shall\nrenew for successive three-year periods (each a "Renewal Period"; collectively, the Initial Term and each Renewal Period, the "Employment\nPeriod"), unless either party notifies the other party of its decision not to renew the Agreement no later than ninety (90) days prior to the third\nanniversary date, or unless the Agreement is sooner terminated as provided in Section 4 hereof. For the avoidance of doubt, if either party provides\nnotice of non-renewal of the Agreement no later than ninety (90) days prior to the third anniversary date (either at the end of the Initial Term or at the\nend of any Renewal Period), then the Agreement shall expire on that anniversary date.\n3. Compensation.\n(a) Base Salary.. During the Employment Period, Company shall pay Employee as compensation for his services an annual base\nsalary of not less than Two Hundred Twenty Thousand Dollars ($220,000), payable in accordance with Company's usual practices. Employee's\nannual base salary rate shall be reviewed by Company's Compensation Committee at least annually for increase following each fiscal year so that\nEmployee's salary will be commensurate for similarly situated executives with firms similarly situated to Company; provided, however, that if\nEmployee's individualized performance targets (set for each fiscal year by Employee and Employee's team leader) are achieved, Employee's annual\nbase salary rate shall not be subject to decrease at any time during the Employment Period and shall be subject to annual increase by no less than the\naverage percentage increase given to all other Company executive employees for such fiscal year (the "Average Increase").\n(b) Bonus. Should Company exceed its sales, profits and other objectives for any fiscal year, Employee shall be eligible to\nreceive a bonus for such fiscal year in the amount as determined by the Compensation Committee of the Board of Directors; provided however the\n2\npotential bonus opportunity for Employee in any given fiscal year will be set by the Compensation Committee such that, if the Company exceeds its\nobjectives, the Company will pay Employee not less than thirty five percent (35%) of Employee's annual base pay for such fiscal year. Any bonus\npayable to Employee will be payable in cash, stock or stock options, or combination thereof, all as determined by the Board of Directors or any duly\nauthorized committee thereof, and unless a different payout schedule is applicable for all executive employees of the Company, any such bonus\npayment will be payable in a single, lump sum payment. In the event of termination of this Agreement because of Employee's death or disability (as\ndefined by Section 4(b)), termination by the Company without Cause pursuant to Section 4.1(c), or pursuant to Employee's right to terminate this\nAgreement for Good Reason under Section 1.1(d), the bonus criteria shall not change and any bonus shall be pro-rated based on the number of full\ncalendar weeks during the applicable fiscal year during which Employee was employed hereunder.\nSuch bonus, if any, shall be payable after Company's accountants have determined the sales and profits and have issued their\naudit report with respect thereto for the applicable fiscal year, which determination shall be binding on the parties. Any such bonus shall be paid\nwithin seventy-five (75) days after the end of each calendar year, regardless of Employee's employment status at the time payment is due. If timely\npayment is not made, the Company shall indemnify the Employee against any additional tax liability that the Employee may incur proximately as a\nresult of the payment being made after the seventy-five day period.\n(c) Stock Options. Employee may have been granted in the past, and/or may in the future be granted, a certain number of\nrestricted shares and/or stock options to purchase shares of Company's common stock (the "Common Stock"), pursuant to the terms set forth more\nparticularly in the stock option and/or restricted stock agreements ("Stock Agreement") used in connection with the Build-A-Bear Workshop, Inc.\n2000 Stock Option Plan (or any successor plan) (the "Plan"). The Plan and applicable Stock Agreement(s) shall govern any grants of restricted\nshares and/or stock options to purchase shares of Company's Common Stock.\n(d) Discounts. Employee and his immediate family will be entitled to a 20% discount for all merchandise purchased\nat\nCompany's stores.\n(e) Vacation. Employee shall be entitled to paid vacation and paid sick leave on the same basis as may from time to time apply\nto\nother Company executive employees generally. Vacations will be scheduled with the approval of Company's Chief Executive Bear, who may block\nout certain periods of time during which vacations may not be taken, including preceding Valentine's Day, preceding Easter, from November 1\nthrough December 31, during Company inventory, and just prior to store openings. One-third of one year's vacation (or any part of it) may be carried\nover to the next year; provided that such carry over is used in the first calendar quarter of the next year. Unless approved by the Chief Executive\nBear, all unused vacation shall be forfeited. No more than two weeks of vacation can be taken at one time. Employee shall also be entitled to one\n(1) additional day per calendar year of paid vacation to be taken in the month of his birthday.\n(f) Other. Employee shall be eligible for such other perquisites as may from time to time be awarded to Employee by Company\npayable at such times and in such amounts\n3\nas Company, in its sole discretion, may determine. All such compensation shall be subject to customary withholding taxes and other employment\ntaxes as required with respect thereto. During the Employment Period, Employee shall also qualify for all rights and benefits for which Employee\nmay be eligible under any benefit plans including group life, medical, health, dental and/or disability insurance or other benefits ("Welfare Benefits")\nwhich are provided for employees generally at his then current location of employment. Employee may, in his sole discretion, decline any perquisite,\nWelfare Benefit, proposed annual salary increase, or bonus payment.\n4. Termination of Employment. Prior to the expiration of the Employment Period, this Agreement and Employee's employment may be\nterminated as follows:\n(a) Upon Employee's death;\n(b) By the Company upon thirty (30) day's prior written notice to Employee in the event Employee, by reason of permanent\nphysical or mental disability (which shall be determined by a physician selected by Company or its insurers and acceptable to Employee or\nEmployee's legal representative (such agreement as to acceptability not to be withheld unreasonably), shall be unable to perform the essential\nfunctions of his position, with or without reasonable accommodation, for six (6) consecutive months; provided, however, Employee shall not be\nterminated due to permanent physical or mental disability unless or until said disability also entitles Employee to benefits under such disability\ninsurance policy as is provided to Employee by Company, provided however that continued entitlement to disability benefits coverage shall be not\nrequired where Employee fails to qualify for benefits coverage continuation due to an act or omission by Employee.\n(c) By the Company with or without Cause. For the purposes of this Agreement, "Cause" shall mean: (i) Employee's engagement\nin any conduct which, in Company's reasonable determination, constitutes gross misconduct, or is illegal, unethical, improper provided such conduct\nbrings detrimental notoriety or material harm to Company; (ii) gross negligence or willful misconduct; (iii) the Company has good reason to believe\nthat Employee has committed a felony or a crime involving moral turpitude; (iv) a material breach of a material provision of this Agreement by\nEmployee, or (v) failure of Employee to follow a written directive of the Chief Executive Bear or the Board of Directors within thirty (30) days after\nreceiving such notice, provided that such directive is reasonable in scope or is otherwise within the Chief Executive Bear's or the Board's reasonable\nbusiness judgment, and is reasonably within Employee's control; provided Employee does not cure said conduct or breach (to the extent curable)\nwithin thirty (30) days after the Chief Executive Bear or the Board of Directors provides Employee with written notice of said conduct or breach. In\nthe event of termination with cause, the Employee will be afforded an opportunity prior to the actual date of termination to discuss the matter with\nthe Company.\n(d) By the Employee with or without Good Reason. For purposes of this Agreement, "Good Reason" shall mean a material\nbreach of a material provision of this Agreement by Company, provided Company does not cure said breach within thirty (30) days after Employee\nprovides the Board of Directors with written notice of the breach.\n4\n4.2 Impact of Termination.\n(a) Survival of Covenants. Upon termination of this Agreement, all rights and obligations of the parties hereunder shall cease,\nexcept termination of employment pursuant to Section 4 or otherwise shall not terminate or otherwise affect the rights and obligations of the parties\npursuant to Sections 5 through 13 hereof.\n(b) Severance. In the event during the Employment Period (i) the Company terminates Employee's employment without Cause\npursuant to Section 4.1(c) or (ii) the Employee terminates his employment for Good Reason pursuant to Section 4.1(d), the Company shall continue\nhis base salary for a period of twelve (12) months from termination, such payments to be reduced by the amount of any compensation from a\nsubsequent employer during such period. Employee shall accept these payments in full discharge of all obligations of any kind which Company has\nto him except obligations, if any (i) for post-employment benefits expressly provided under this Agreement and/or at law, (ii) to repurchase any\ncapital stock of Company owned by Employee (as may or may not be set forth in the applicable stock agreement); (iii) for indemnification under\nseparate agreement by virtue of Employee's status as a director/officer of the Company; or (iv) for benefits otherwise provided under the Deferred\nCompensation plan. Employee shall also be eligible to receive a bonus with respect to the year of termination as provided in Section 3(b).\n(c) Termination due to Expiration. If the Agreement expires either at the end of the Initial Term or at the end of any Renewal\nPeriod, due to the issuance of notice of non-renewal by either party under Section 2, then no severance under Section 4(b) shall be paid to the\nEmployee and his Employment shall terminate upon the anniversary date.\n(d) Upon termination or expiration of this Agreement for any reason, Employee shall be provided with such Welfare Benefits\ncontinuation notices, rights and obligations as may be required under federal or state law (including COBRA).\n5. Confidential Information.\n(a) Employee agrees to keep secret and confidential, and not to use or disclose to any third parties, except as directly required for\nEmployee to perform Employee's employment responsibilities for Company, any of Company's proprietary Confidential Information.\n(b) Employee acknowledges and confirms that certain data and other information (whether in human or machine readable form)\nthat comes into his possession or knowledge (whether before or after the date of this Agreement) and which was obtained from Company, or\nobtained by Employee for or on behalf of Company, and which is identified herein (the "Confidential Information") is the secret, confidential\nproperty of Company. This Confidential Information includes, but is not limited to:\n(1) lists or other identification of customers or prospective customers of Company;\n5\n(2) lists or other identification of sources or prospective sources of Company's products or components thereof, its landlords\nand prospective landlords and its current and prospective alliance, marketing and media partners (and key individuals employed\nor engaged by such parties);\n(3) all compilations of information, correspondence, designs, drawings, files, formulae, lists, machines, maps, methods,\nmodels, studies, surveys, scripts, screenplays, artwork, sketches, notes or other writings, plans, leases, records and reports;\n(4) financial, sales and marketing data relating to Company or to the industry or other areas pertaining to Company's\nactivities and contemplated activities (including, without limitation, leasing, manufacturing, transportation, distribution and sales\ncosts and non-public pricing information);\n(5) equipment, materials, designs, procedures, processes, and techniques used in, or related to, the development,\nmanufacture, assembly, fabrication or other production and quality control of Company's products, stores and services;\n(6) Company's relations with its past, current and prospective customers, suppliers, landlords, alliance, marketing and media\npartners and the nature and type of products or services rendered to, received from or developed with such parties or prospective\nparties;\n(7) Company's relations with its employees (including, without limitation, salaries, job classifications and skill levels); and\n(8) any other information designated by Company to be confidential, secret and/or proprietary (including without limitation,\ninformation provided by customers, suppliers and alliance partners of Company).\nNotwithstanding the foregoing, the term Confidential Information shall not consist of any data or other information which has been made publicly\navailable or otherwise placed in the public domain other than by Employee in violation of this Agreement.\n(c) During the Employment Period, Employee will not copy, reproduce or otherwise duplicate, record, abstract, summarize or\notherwise use, any papers, records, reports, studies, computer printouts, equipment, tools or other property owned by Company except as expressly\npermitted by Company in writing or required for the proper performance of his duties on behalf of Company.\n6. Post-Termination Restrictions. Employee recognizes that (i) Company has spent substantial money, time and effort over the years\nin\ndeveloping and solidifying its\n6\nrelationships with its customers, suppliers, landlords and alliance, marketing and media partners and in developing its Confidential Information;\n(ii) long-term customer, landlord, supplier and partner relationships often can be difficult to develop and require a significant investment of time,\neffort and expense; (iii) Company has paid its employees to, among other things, develop and preserve business information, customer, landlord,\nvendor and partner goodwill, customer, landlord, vendor and partner loyalty and customer, landlord, vendor and partner contacts for and on behalf of\nCompany; and (iv) Company is hereby agreeing to employ and pay Employee based upon Employee's assurances and promises not to divert\ngoodwill of customers, landlords, suppliers or partners of Company, either individually or on a combined basis, or to put himself in a position\nfollowing Employee's employment with Company in which the confidentiality of Company's Confidential Information might somehow be\ncompromised. Accordingly, Employee agrees that during the Employment Period and for the period of time set forth below following termination\nof\nemployment, provided termination is in accordance with the terms of paragraph 4(b), (c), or (d), or due to expiration of the Agreement due to non-\nrenewal by either party, Employee will not, directly or indirectly (whether as owner, partner, consultant, employee or otherwise):\n(a) for one (1) year, engage in, assist or have an interest in, or enter the employment of or act as an agent, advisor or consultant\nfor, any person or entity which is engaged in, or will be engaged in, the development, manufacture, supplying or sale of a product, process, service or\ndevelopment which is competitive with a product, process, service or development on which Employee worked or with respect to which Employee\nhas or had access to Confidential Information while at Company ("Restricted Activity"), and which is located within the United States or within any\ncountry where the Company has established a retail presence either directly or through a franchise arrangement; or\n(b) for one (1) year, induce or attempt to induce any employee, consultant, partner or advisor of Company to accept employment\nor an affiliation with any entity engaged in a Restricted Activity;\nprovided, however, that following termination of his employment, Employee shall be entitled to be an employee of an entity that engages in\nRestricted Activity so long as: (i) the sale of stuffed plush toys is not a material business of the entity; (ii) Employee has no direct or personal\ninvolvement in the sale of stuffed plush toys and (iii) neither Employee, his relatives, nor any other entities with which he is affiliated own more\nthan 1% of the entity. As used in this paragraph 6, "material business" shall mean that either (A) greater than 10% of annual revenues received by\nsuch entity were derived from the sale of stuffed plush toys and related products, or (B) the annual revenues received or projected to be received by\nsuch entity from the sale of stuffed plush toys and related products exceeded $10 million, or (C) or the entity otherwise annually derives or is\nprojected to derive annual revenues in excess of $5 million from a retail concept that is similar in any material regard to Company.\n7. Acknowledgment Regarding Restrictions. Employee recognizes and agrees that the restraints contained in Section 6 (both separately\nand in total), including the geographic scope thereof in light of the Company's marketing efforts, are reasonable and enforceable in view of\nCompany's legitimate interests in protecting its Confidential Information and customer goodwill and the limited scope of the restrictions in\nSection 6.\n7\n8. Inventions.\nAny and all ideas, inventions, discoveries, patents, patent applications, continuation-in-part patent applications, divisional patent\napplications, technology, copyrights, derivative works, trademarks, service marks, improvements, trade secrets and the like (collectively,\n"Inventions"), which are developed, conceived, created, discovered, learned, produced and/or otherwise generated by Employee, whether\nindividually or otherwise, during the time that Employee is employed by Company, whether or not during working hours, that relate to (i) current\nand anticipated businesses and/or activities of Company, (ii) the current and anticipated research or development of Company, or (iii) any work\nperformed by Employee for Company, shall be the sole and exclusive property of Company, and Company shall own any and all right, title and\ninterest to such Inventions. Employee assigns, and agrees to assign to Company whenever so requested by Company, any and all right, title and\ninterest in and to any such Invention, at Company's expense, and Employee agrees to execute any and all applications, assignments or other\ninstruments which Company deems desirable or necessary to protect such interests, at Company's expense.\n(b) Employee acknowledges that as part of his work for the Company he may be asked to create, or contribute to the creation of,\ncomputer programs, documentation and other copyrightable works. Employee hereby agrees that any and all computer programs, documentation and\nother copyrightable materials that he has prepared or worked on for the Company, or is asked to prepare or work on by the Company, shall be\ntreated\nas and shall be a "work made for hire," for the exclusive ownership and benefit of Company according to the copyright laws of the United States,\nincluding, but not limited to, Sections 101 and 201 of Title 17 of the U.S. Code ("U.S.C.") as well as according to similar foreign laws. Company\nshall have the exclusive right to register the copyrights in all such works in its name as the owner and author of such works and shall have the\nexclusive rights conveyed under 17 U.S.C. 106 and 106A including, but not limited to, the right to make all uses of the works in which attribution\nor integrity rights may be implicated. Without in any way limiting the foregoing, to the extent the works are not treated as works made for hire under\nany applicable law, Employee hereby irrevocably assigns, transfers, and conveys to Company and its successors and assigns any and all worldwide\nright, title, and interest that Employee may now or in the future have in or to the works, including, but not limited to, all ownership, U.S. and foreign\ncopyrights, all treaty, convention, statutory, and common law rights under the law of any U.S. or foreign jurisdiction, the right to sue for past,\npresent,\nand future infringement, and moral, attribution, and integrity rights. Employee hereby expressly and forever irrevocably waives any and all\nrights that he may have arising under 17 U.S.C. 8s 106A, rights that may arise under any federal, state, or foreign law that conveys rights that are\nsimilar in nature to those conveyed under 17 U.S.C. 88 106A, and any other type of moral right or droit moral.\n9. Company Property. Employee acknowledges that any and all notes, records, sketches, computer diskettes, training materials and other\ndocuments relating to Company obtained by or provided to Employee, or otherwise made, produced or compiled during the Employment Period,\nregardless of the type of medium in which they are preserved, are the sole and exclusive property of Company and shall be surrendered to Company\nupon Employee's termination of employment and on demand at any time by Company.\n8\n10. Nondisparagement. Employee agrees that he will not in any way disparage Company or its affiliated entities, officers, or directors.\nFurther, Employee agrees that he will neither make nor solicit any comments, statements, or the like to the media or to third parties that may be\nconsidered to be derogatory or detrimental to the good name or business reputation of Company or any of its affiliated entities, officers or directors.\n11. Non-Waiver of Rights. Either party's failure to enforce at any time any of the provisions of this Agreement or to require at any time\nperformance\nby\nthe\nother party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect\neither\nthe\nvalidity of this Agreement, or any part hereof, or the right of the non-breaching party thereafter to enforce each and every provision in accordance\nwith the terms of this Agreement.\n12. Company's Right to Injunctive Relief. In the event of a breach or threatened breach of any of Employee's duties and obligations\nunder the terms and provisions of Sections 5, 6, or 8 hereof, Company shall be entitled, in addition to any other legal or equitable remedies it may\nhave in connection therewith (including any right to damages that it may suffer), to temporary, preliminary and permanent injunctive relief\nrestraining such breach or threatened breach. Employee hereby expressly acknowledges that the harm which might result to Company's business as a\nresult of any noncompliance by Employee with any of the provisions of Sections 5, 6 or 8 would be largely irreparable. Employee specifically agrees\nthat if there is a question as to the enforceability of any of the provisions of Sections 5, 6 or 8 hereof, Employee will not engage in any conduct\ninconsistent with or contrary to such Sections until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n13. Judicial Enforcement. If any provision of this Agreement is adjudicated to be invalid or unenforceable under applicable law in any\njurisdiction, the validity or enforceability of the remaining provisions thereof shall be unaffected as to such jurisdiction and such adjudication shall\nnot affect the validity or enforceability of such provisions in any other jurisdiction. To the extent that any provision of this Agreement is adjudicated\nto\nbe invalid or unenforceable because it is overbroad, that provision shall not be void but rather shall be limited only to the extent required by\napplicable law and enforced as so limited. The parties expressly acknowledge and agree that this Section is reasonable in view of the parties'\nrespective interests.\n14. Employee Representations. Employee represents that the execution and delivery of the Agreement and Employee's employment with\nCompany do not violate any previous employment agreement or other contractual obligation of Employee. Employee further represents and agrees\nthat he will not, during his employment with Company, improperly use or disclose any proprietary information or trade secrets of former employers\nand will not bring on to the premises of the Company any unpublished documents or any property belonging to his former employers unless\nconsented to in writing by such employers.\n15. Amendments. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing\nspecifically referring hereto, and signed by the parties hereto. This Agreement supersedes all prior agreements and understandings\n9\nbetween Employee and Company to the extent that any such agreements or understandings conflict with the terms of this Agreement.\n16. Assignments. This Agreement shall be freely assignable by Company to and shall inure to the benefit of, and be binding upon,\nCompany, its affiliates, successors and assigns and/or any other entity which shall succeed to the business presently being conducted by Company.\nBeing a contract for personal services, neither this Agreement nor any rights hereunder shall be assigned by Employee.\n17. Choice of Forum and Governing Law. In light of Company's substantial contacts with the State of Missouri, the parties' interests in\nensuring that disputes regarding the interpretation, validity and enforceability of this Agreement are resolved on a uniform basis, and Company's\nexecution of, and the making of, this Agreement in Missouri, the parties agree that: (i) any litigation involving any noncompliance with or breach\nof\nthe Agreement, or regarding the interpretation, validity and/or enforceability of the Agreement, shall be filed and conducted in the state or federal\ncourts in St. Louis City or County, Missouri; and (ii) the Agreement shall be interpreted in accordance with and governed by the laws of the State\nof\nMissouri, without regard for any conflict of law principles.\n18. Notices. Except as otherwise provided for herein, any notices to be given by either party to the other shall be affected by personal\ndelivery in writing or by mail, registered or certified, postage prepaid, with return receipt requested. Mailed notices shall be addressed as follows:\na.\nIf to Company:\nMaxine Clark\nChief Executive Bear\n1954 Innerbelt Business Center\nSt. Louis, MO 63114\nb.\nIf to Employee:\n18. Arbitration. Any controversy or claim arising out of, or relating to this Agreement, the breach thereof, or Employee's\nemployment by Company, shall, at Company's sole option, be settled by binding arbitration in the County of St. Louis in accordance with\nthe rules then in force of the American Arbitration Association, and judgment upon the award rendered may be entered and enforced in\nany court having jurisdiction thereof. The controversies or claims subject to arbitration at Company's option under this Agreement include,\nwithout limitation, those arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 1981, the Age Discrimination in\nEmployment Act, the Americans with Disabilities Act, the Family and medical Leave Act, the Worker Adjustment and Retraining\n10\nNotification Act, the Missouri Human Rights Act, local laws governing employment, and the statutory and/or common law of contract and\ntort. In the event Employee commences any action in court which Company has the right to submit to binding arbitration, Company shall\nhave sixty (60) days from the date of service of a summons and complaint upon Company to direct in writing that all or any part of the\ndispute be arbitrated. Any remedy available in any court action shall also be available in arbitration.\n19. Headings. Section headings are provided in this Agreement for convenience only and shall not be deemed to substantively alter the\ncontent of such sections.\nPLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT EMPLOYEE (A) HAS\nRECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) HAS READ THIS\nAGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE\nAGREEMENT TO ASK ANY QUESTIONS EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY\nANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE'S RIGHTS AND OBLIGATIONS UNDER THE\nAGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nTHIS AGREEMENT CONTAINS A BINDING ARBIRTARTION PROVISION WHICH MAY BE ENFORCED BY\nCOMPANY.\n/s/ David Finnegan\nDave Finnegan\nAddress:\nBUILD-A-BEAR WORKSHOP, INC.\nBy: /s/ Maxine Clark\nName: Maxine Clark\nTitle: Chief Executive Bear\n11	EX-10.6 2 dex106.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nExhibit 10.6\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nThis Employment, Confidentiality and Noncompete Agreement (“Agreement”) is made and entered into effective as of the 10 day of\nJanuary, 2007, by and between Build-A -Bear Workshop, Inc., a Delaware corporation (“Company”), and Dave Finnegan (“Employee”).\nWHEREAS, Company desires to employ and Employee desires to be employed as the Chief Information Bear of Company.\nWHEREAS, Company has pioneered the retail concept of “make your own” stuff plush toys, including animals and dolls, and is engaged\nin, among other things, the business of production, marketing, promotion and distribution of plush stuff toys, clothing, accessories and similar items,\nincluding without limitation, the ownership, management, franchising, leasing and development of retail stores in which the basic operation is the\nselling of such items, and the promotion of the related concepts and characters through merchandising and mass media. The Company is\nheadquartered and its principal place of business are located in, and this Agreement is being signed in, St. Louis, Missouri.\nWHEREAS, Company conducts business in selected locations throughout the United States and internationally through franchise\narrangements.\nWHEREAS, Company has expended a great deal of time, money and effort to develop and maintain its proprietary Confidential\nInformation (as defined herein) which is material to Company and which, if misused or disclosed, could be very harmful to Company’s business.\nWHEREAS, the success of Company depends to a substantial extent upon the protection of its Confidential Information and goodwill by\nall of its employees.\nWHEREAS, Company compensates its employees to, among other things, develop and preserve goodwill with its customers, landlords,\nsuppliers and partners on Company’s behalf and business information for Company’s ownership and use.\nWHEREAS, if Employee were to leave Company, Company, in all fairness, would need certain protections in order to prevent\ncompetitors of Company from gaining an unfair competitive advantage over Company or diverting goodwill from Company, or to prevent Employee\nfrom misusing or misappropriating the Confidential Information.\nNOW, THEREFORE, in consideration of the compensation and other benefits of Employee’s employment by Company and the recitals,\nmutual covenants and agreements hereinafter set forth, Employee and Company agree as follows:\n1. Employment Services.\n(a) Employee is hereby employed by Company, and Employee hereby accepts such employment, upon the terms and conditions\nhereinafter set forth. Employee shall serve\nth\nas Chief Information Bear, during the Employment Period, on a full-time basis. Employee shall carry out such duties as are assigned to him by\nCompany’s Chief Executive Bear.\n(b) Employee agrees that throughout Employee’s employment with Company, Employee will (i) faithfully render such services as\nmay be delegated to Employee by Company, (ii) devote substantially all of Employee’s entire business time, good faith, best efforts, ability, skill and\nattention to Company’s business, and (iii) follow and act in accordance with all of the rules, policies and procedures of Company, including but not\nlimited to working hours, sales and promotion policies, and specific Company rules. Company further agrees that it shall not during the Initial Term\nof this Agreement require Employee to relocate his residence outside of the St. Louis metropolitan area.\n(c) “Company” means Build-A-Bear Workshop, Inc. or one of its Subsidiaries, whichever is Employee’s employer. The term\n“Subsidiary” means any corporation, joint venture or other business organization in which Build-A-Bear Workshop, Inc. now or hereafter, directly or\nindirectly, owns or controls more than fifty percent (50%) interest.\n2. Term of Employment. The term of this Agreement shall commence on the date first set forth above, and shall end on the third\nanniversary hereof, unless sooner terminated as provided in Section 4 hereof (the “Initial Term”). Following the Initial Term, this Agreement shall\nrenew for successive three-year periods (each a “Renewal Period”; collectively, the Initial Term and each Renewal Period, the “Employment\nPeriod”), unless either party notifies the other party of its decision not to renew the Agreement no later than ninety (90) days prior to the third\nanniversary date, or unless the Agreement is sooner terminated as provided in Section 4 hereof. For the avoidance of doubt, if either party provides\nnotice of non-renewal of the Agreement no later than ninety (90) days prior to the third anniversary date (either at the end of the Initial Term or at the\nend of any Renewal Period), then the Agreement shall expire on that anniversary date.\n3. Compensation.\n(a) Base Salary. During the Employment Period, Company shall pay Employee as compensation for his services an annual base\nsalary of not less than Two Hundred Twenty Thousand Dollars ($220,000), payable in accordance with Company’s usual practices. Employee’s\nannual base salary rate shall be reviewed by Company’s Compensation Committee at least annually for increase following each fiscal year so that\nEmployee’s salary will be commensurate for similarly situated executives with firms similarly situated to Company; provided, however, that if\nEmployee’s individualized performance targets (set for each fiscal year by Employee and Employee’s team leader) are achieved, Employee’s annual\nbase salary rate shall not be subject to decrease at any time during the Employment Period and shall be subject to annual increase by no less than the\naverage percentage increase given to all other Company executive employees for such fiscal year (the “Average Increase”).\n(b) Bonus. Should Company exceed its sales, profits and other objectives for any fiscal year, Employee shall be eligible to\nreceive a bonus for such fiscal year in the amount as determined by the Compensation Committee of the Board of Directors; provided however the\n2\npotential bonus opportunity for Employee in any given fiscal year will be set by the Compensation Committee such that, if the Company exceeds its\nobjectives, the Company will pay Employee not less than thirty five percent (35%) of Employee’s annual base pay for such fiscal year. Any bonus\npayable to Employee will be payable in cash, stock or stock options, or combination thereof, all as determined by the Board of Directors or any duly\nauthorized committee thereof, and unless a different payout schedule is applicable for all executive employees of the Company, any such bonus\npayment will be payable in a single, lump sum payment. In the event of termination of this Agreement because of Employee’s death or disability (as\ndefined by Section 4(b)), termination by the Company without Cause pursuant to Section 4.1(c), or pursuant to Employee’s right to terminate this\nAgreement for Good Reason under Section 4.1(d), the bonus criteria shall not change and any bonus shall be pro-rated based on the number of full\ncalendar weeks during the applicable fiscal year during which Employee was employed hereunder.\nSuch bonus, if any, shall be payable after Company’s accountants have determined the sales and profits and have issued their\naudit report with respect thereto for the applicable fiscal year, which determination shall be binding on the parties. Any such bonus shall be paid\nwithin seventy-five (75) days after the end of each calendar year, regardless of Employee’s employment status at the time payment is due. If timely\npayment is not made, the Company shall indemnify the Employee against any additional tax liability that the Employee may incur proximately as a\nresult of the payment being made after the seventy-five day period.\n(c) Stock Options. Employee may have been granted in the past, and/or may in the future be granted, a certain number of\nrestricted shares and/or stock options to purchase shares of Company’s common stock (the “Common Stock”), pursuant to the terms set forth more\nparticularly in the stock option and/or restricted stock agreements (“Stock Agreement”) used in connection with the Build-A-Bear Workshop, Inc.\n2000 Stock Option Plan (or any successor plan) (the “Plan”). The Plan and applicable Stock Agreement(s) shall govern any grants of restricted\nshares and/or stock options to purchase shares of Company’s Common Stock.\n(d) Discounts. Employee and his immediate family will be entitled to a 20% discount for all merchandise purchased at\nCompany’s stores.\n(e) Vacation. Employee shall be entitled to paid vacation and paid sick leave on the same basis as may from time to time apply to\nother Company executive employees generally. Vacations will be scheduled with the approval of Company’s Chief Executive Bear, who may block\nout certain periods of time during which vacations may not be taken, including preceding Valentine’s Day, preceding Easter, from November 1\nthrough December 31, during Company inventory, and just prior to store openings. One-third of one year’s vacation (or any part of it) may be carried\nover to the next year; provided that such carry over is used in the first calendar quarter of the next year. Unless approved by the Chief Executive\nBear, all unused vacation shall be forfeited. No more than two weeks of vacation can be taken at one time. Employee shall also be entitled to one\n(1) additional day per calendar year of paid vacation to be taken in the month of his birthday.\n(f) Other. Employee shall be eligible for such other perquisites as may from time to time be awarded to Employee by Company\npayable at such times and in such amounts\n3\nas Company, in its sole discretion, may determine. All such compensation shall be subject to customary withholding taxes and other employment\ntaxes as required with respect thereto. During the Employment Period, Employee shall also qualify for all rights and benefits for which Employee\nmay be eligible under any benefit plans including group life, medical, health, dental and/or disability insurance or other benefits (“Welfare Benefits”)\nwhich are provided for employees generally at his then current location of employment. Employee may, in his sole discretion, decline any perquisite,\nWelfare Benefit, proposed annual salary increase, or bonus payment.\n4. Termination of Employment. Prior to the expiration of the Employment Period, this Agreement and Employee’s employment may be\nterminated as follows:\n(a) Upon Employee’s death;\n(b) By the Company upon thirty (30) day’s prior written notice to Employee in the event Employee, by reason of permanent\nphysical or mental disability (which shall be determined by a physician selected by Company or its insurers and acceptable to Employee or\nEmployee’s legal representative (such agreement as to acceptability not to be withheld unreasonably), shall be unable to perform the essential\nfunctions of his position, with or without reasonable accommodation, for six (6) consecutive months; provided, however, Employee shall not be\nterminated due to permanent physical or mental disability unless or until said disability also entitles Employee to benefits under such disability\ninsurance policy as is provided to Employee by Company, provided however that continued entitlement to disability benefits coverage shall be not\nrequired where Employee fails to qualify for benefits coverage continuation due to an act or omission by Employee.\n(c) By the Company with or without Cause. For the purposes of this Agreement, “Cause” shall mean: (i) Employee’s engagement\nin any conduct which, in Company’s reasonable determination, constitutes gross misconduct, or is illegal, unethical, improper provided such conduct\nbrings detrimental notoriety or material harm to Company; (ii) gross negligence or willful misconduct; (iii) the Company has good reason to believe\nthat Employee has committed a felony or a crime involving moral turpitude; (iv) a material breach of a material provision of this Agreement by\nEmployee, or (v) failure of Employee to follow a written directive of the Chief Executive Bear or the Board of Directors within thirty (30) days after\nreceiving such notice, provided that such directive is reasonable in scope or is otherwise within the Chief Executive Bear’s or the Board’s reasonable\nbusiness judgment, and is reasonably within Employee’s control; provided Employee does not cure said conduct or breach (to the extent curable)\nwithin thirty (30) days after the Chief Executive Bear or the Board of Directors provides Employee with written notice of said conduct or breach. In\nthe event of termination with cause, the Employee will be afforded an opportunity prior to the actual date of termination to discuss the matter with\nthe Company.\n(d) By the Employee with or without Good Reason. For purposes of this Agreement, “Good Reason” shall mean a material\nbreach of a material provision of this Agreement by Company, provided Company does not cure said breach within thirty (30) days after Employee\nprovides the Board of Directors with written notice of the breach.\n4\n4.2 Impact of Termination.\n(a) Survival of Covenants. Upon termination of this Agreement, all rights and obligations of the parties hereunder shall cease,\nexcept termination of employment pursuant to Section 4 or otherwise shall not terminate or otherwise affect the rights and obligations of the parties\npursuant to Sections 5 through 13 hereof.\n(b) Severance. In the event during the Employment Period (i) the Company terminates Employee’s employment without Cause\npursuant to Section 4.1(c) or (ii) the Employee terminates his employment for Good Reason pursuant to Section 4.1(d), the Company shall continue\nhis base salary for a period of twelve (12) months from termination, such payments to be reduced by the amount of any compensation from a\nsubsequent employer during such period. Employee shall accept these payments in full discharge of all obligations of any kind which Company has\nto him except obligations, if any (i) for post-employment benefits expressly provided under this Agreement and/or at law, (ii) to repurchase any\ncapital stock of Company owned by Employee (as may or may not be set forth in the applicable stock agreement); (iii) for indemnification under\nseparate agreement by virtue of Employee’s status as a director/officer of the Company; or (iv) for benefits otherwise provided under the Deferred\nCompensation plan. Employee shall also be eligible to receive a bonus with respect to the year of termination as provided in Section 3(b).\n(c) Termination due to Expiration. If the Agreement expires either at the end of the Initial Term or at the end of any Renewal\nPeriod, due to the issuance of notice of non-renewal by either party under Section 2, then no severance under Section 4(b) shall be paid to the\nEmployee and his Employment shall terminate upon the anniversary date.\n(d) Upon termination or expiration of this Agreement for any reason, Employee shall be provided with such Welfare Benefits\ncontinuation notices, rights and obligations as may be required under federal or state law (including COBRA).\n5. Confidential Information.\n(a) Employee agrees to keep secret and confidential, and not to use or disclose to any third parties, except as directly required for\nEmployee to perform Employee’s employment responsibilities for Company, any of Company’s proprietary Confidential Information.\n(b) Employee acknowledges and confirms that certain data and other information (whether in human or machine readable form)\nthat comes into his possession or knowledge (whether before or after the date of this Agreement) and which was obtained from Company, or\nobtained by Employee for or on behalf of Company, and which is identified herein (the “Confidential Information”) is the secret, confidential\nproperty of Company. This Confidential Information includes, but is not limited to:\n(1) lists or other identification of customers or prospective customers of Company;\n5\n(2) lists or other identification of sources or prospective sources of Company’s products or components thereof, its landlords\nand prospective landlords and its current and prospective alliance, marketing and media partners (and key individuals employed\nor engaged by such parties);\n(3) all compilations of information, correspondence, designs, drawings, files, formulae, lists, machines, maps, methods,\nmodels, studies, surveys, scripts, screenplays, artwork, sketches, notes or other writings, plans, leases, records and reports;\n(4) financial, sales and marketing data relating to Company or to the industry or other areas pertaining to Company’s\nactivities and contemplated activities (including, without limitation, leasing, manufacturing, transportation, distribution and sales\ncosts and non-public pricing information);\n(5) equipment, materials, designs, procedures, processes, and techniques used in, or related to, the development,\nmanufacture, assembly, fabrication or other production and quality control of Company’s products, stores and services;\n(6) Company’s relations with its past, current and prospective customers, suppliers, landlords, alliance, marketing and media\npartners and the nature and type of products or services rendered to, received from or developed with such parties or prospective\nparties;\n(7) Company’s relations with its employees (including, without limitation, salaries, job classifications and skill levels); and\n(8) any other information designated by Company to be confidential, secret and/or proprietary (including without limitation,\ninformation provided by customers, suppliers and alliance partners of Company).\nNotwithstanding the foregoing, the term Confidential Information shall not consist of any data or other information which has been made publicly\navailable or otherwise placed in the public domain other than by Employee in violation of this Agreement.\n(c) During the Employment Period, Employee will not copy, reproduce or otherwise duplicate, record, abstract, summarize or\notherwise use, any papers, records, reports, studies, computer printouts, equipment, tools or other property owned by Company except as expressly\npermitted by Company in writing or required for the proper performance of his duties on behalf of Company.\n6. Post-Termination Restrictions. Employee recognizes that (i) Company has spent substantial money, time and effort over the years in\ndeveloping and solidifying its\n6\nrelationships with its customers, suppliers, landlords and alliance, marketing and media partners and in developing its Confidential Information;\n(ii) long-term customer, landlord, supplier and partner relationships often can be difficult to develop and require a significant investment of time,\neffort and expense; (iii) Company has paid its employees to, among other things, develop and preserve business information, customer, landlord,\nvendor and partner goodwill, customer, landlord, vendor and partner loyalty and customer, landlord, vendor and partner contacts for and on behalf of\nCompany; and (iv) Company is hereby agreeing to employ and pay Employee based upon Employee’s assurances and promises not to divert\ngoodwill of customers, landlords, suppliers or partners of Company, either individually or on a combined basis, or to put himself in a position\nfollowing Employee’s employment with Company in which the confidentiality of Company’s Confidential Information might somehow be\ncompromised. Accordingly, Employee agrees that during the Employment Period and for the period of time set forth below following termination of\nemployment, provided termination is in accordance with the terms of paragraph 4(b), (c), or (d), or due to expiration of the Agreement due to non-\nrenewal by either party, Employee will not, directly or indirectly (whether as owner, partner, consultant, employee or otherwise):\n(a) for one (1) year, engage in, assist or have an interest in, or enter the employment of or act as an agent, advisor or consultant\nfor, any person or entity which is engaged in, or will be engaged in, the development, manufacture, supplying or sale of a product, process, service or\ndevelopment which is competitive with a product, process, service or development on which Employee worked or with respect to which Employee\nhas or had access to Confidential Information while at Company (“Restricted Activity”), and which is located within the United States or within any\ncountry where the Company has established a retail presence either directly or through a franchise arrangement; or\n(b) for one (1) year, induce or attempt to induce any employee, consultant, partner or advisor of Company to accept employment\nor an affiliation with any entity engaged in a Restricted Activity;\nprovided, however, that following termination of his employment, Employee shall be entitled to be an employee of an entity that engages in\nRestricted Activity so long as: (i) the sale of stuffed plush toys is not a material business of the entity; (ii) Employee has no direct or personal\ninvolvement in the sale of stuffed plush toys ; and (iii) neither Employee, his relatives, nor any other entities with which he is affiliated own more\nthan 1% of the entity. As used in this paragraph 6, “material business” shall mean that either (A) greater than 10% of annual revenues received by\nsuch entity were derived from the sale of stuffed plush toys and related products, or (B) the annual revenues received or projected to be received by\nsuch entity from the sale of stuffed plush toys and related products exceeded $10 million, or (C) or the entity otherwise annually derives or is\nprojected to derive annual revenues in excess of $5 million from a retail concept that is similar in any material regard to Company.\n7. Acknowledgment Regarding Restrictions. Employee recognizes and agrees that the restraints contained in Section 6 (both separately\nand in total), including the geographic scope thereof in light of the Company’s marketing efforts, are reasonable and enforceable in view of\nCompany’s legitimate interests in protecting its Confidential Information and customer goodwill and the limited scope of the restrictions in\nSection 6.\n7\n8. Inventions.\nAny and all ideas, inventions, discoveries, patents, patent applications, continuation-in-part patent applications, divisional patent\napplications, technology, copyrights, derivative works, trademarks, service marks, improvements, trade secrets and the like (collectively,\n“Inventions”), which are developed, conceived, created, discovered, learned, produced and/or otherwise generated by Employee, whether\nindividually or otherwise, during the time that Employee is employed by Company, whether or not during working hours, that relate to (i) current\nand anticipated businesses and/or activities of Company, (ii) the current and anticipated research or development of Company, or (iii) any work\nperformed by Employee for Company, shall be the sole and exclusive property of Company, and Company shall own any and all right, title and\ninterest to such Inventions. Employee assigns, and agrees to assign to Company whenever so requested by Company, any and all right, title and\ninterest in and to any such Invention, at Company’s expense, and Employee agrees to execute any and all applications, assignments or other\ninstruments which Company deems desirable or necessary to protect such interests, at Company’s expense.\n(b) Employee acknowledges that as part of his work for the Company he may be asked to create, or contribute to the creation of,\ncomputer programs, documentation and other copyrightable works. Employee hereby agrees that any and all computer programs, documentation and\nother copyrightable materials that he has prepared or worked on for the Company, or is asked to prepare or work on by the Company, shall be treated\nas and shall be a “work made for hire,” for the exclusive ownership and benefit of Company according to the copyright laws of the United States,\nincluding, but not limited to, Sections 101 and 201 of Title 17 of the U.S . Code (“U.S .C.”) as well as according to similar foreign laws. Company\nshall have the exclusive right to register the copyrights in all such works in its name as the owner and author of such works and shall have the\nexclusive rights conveyed under 17 U.S.C. §§ 106 and 106A including, but not limited to, the right to make all uses of the works in which attribution\nor integrity rights may be implicated. Without in any way limiting the foregoing, to the extent the works are not treated as works made for hire under\nany applicable law, Employee hereby irrevocably assigns, transfers, and conveys to Company and its successors and assigns any and all worldwide\nright, title, and interest that Employee may now or in the future have in or to the works, including, but not limited to, all ownership, U.S . and foreign\ncopyrights, all treaty, convention, statutory, and common law rights under the law of any U.S. or foreign jurisdiction, the right to sue for past,\npresent, and future infringement, and moral, attribution, and integrity rights. Employee hereby expressly and forever irrevocably waives any and all\nrights that he may have arising under 17 U.S.C . §§ 106A, rights that may arise under any federal, state, or foreign law that conveys rights that are\nsimilar in nature to those conveyed under 17 U.S.C . §§ 106A, and any other type of moral right or droit moral.\n9. Company Property. Employee acknowledges that any and all notes, records, sketches, computer diskettes, training materials and other\ndocuments relating to Company obtained by or provided to Employee, or otherwise made, produced or compiled during the Employment Period,\nregardless of the type of medium in which they are preserved, are the sole and exclusive property of Company and shall be surrendered to Company\nupon Employee’s termination of employment and on demand at any time by Company.\n8\n10. Nondisparagement. Employee agrees that he will not in any way disparage Company or its affiliated entities, officers, or directors.\nFurther, Employee agrees that he will neither make nor solicit any comments, statements, or the like to the media or to third parties that may be\nconsidered to be derogatory or detrimental to the good name or business reputation of Company or any of its affiliated entities, officers or directors.\n11. Non-Waiver of Rights. Either party’s failure to enforce at any time any of the provisions of this Agreement or to require at any time\nperformance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the\nvalidity of this Agreement, or any part hereof, or the right of the non-breaching party thereafter to enforce each and every provision in accordance\nwith the terms of this Agreement.\n12. Company’s Right to Injunctive Relief. In the event of a breach or threatened breach of any of Employee’s duties and obligations\nunder the terms and provisions of Sections 5, 6, or 8 hereof, Company shall be entitled, in addition to any other legal or equitable remedies it may\nhave in connection therewith (including any right to damages that it may suffer), to temporary, preliminary and permanent injunctive relief\nrestraining such breach or threatened breach. Employee hereby expressly acknowledges that the harm which might result to Company’s business as a\nresult of any noncompliance by Employee with any of the provisions of Sections 5, 6 or 8 would be largely irreparable. Employee specifically agrees\nthat if there is a question as to the enforceability of any of the provisions of Sections 5, 6 or 8 hereof, Employee will not engage in any conduct\ninconsistent with or contrary to such Sections until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n13. Judicial Enforcement. If any provision of this Agreement is adjudicated to be invalid or unenforceable under applicable law in any\njurisdiction, the validity or enforceability of the remaining provisions thereof shall be unaffected as to such jurisdiction and such adjudication shall\nnot affect the validity or enforceability of such provisions in any other jurisdiction. To the extent that any provision of this Agreement is adjudicated\nto be invalid or unenforceable because it is overbroad, that provision shall not be void but rather shall be limited only to the extent required by\napplicable law and enforced as so limited. The parties expressly acknowledge and agree that this Section is reasonable in view of the parties’\nrespective interests.\n14. Employee Representations. Employee represents that the execution and delivery of the Agreement and Employee’s employment with\nCompany do not violate any previous employment agreement or other contractual obligation of Employee. Employee further represents and agrees\nthat he will not, during his employment with Company, improperly use or disclose any proprietary information or trade secrets of former employers\nand will not bring on to the premises of the Company any unpublished documents or any property belonging to his former employers unless\nconsented to in writing by such employers.\n15. Amendments. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing\nspecifically referring hereto, and signed by the parties hereto. This Agreement supersedes all prior agreements and understandings\n9\nbetween Employee and Company to the extent that any such agreements or understandings conflict with the terms of this Agreement.\n16. Assignments. This Agreement shall be freely assignable by Company to and shall inure to the benefit of, and be binding upon,\nCompany, its affiliates, successors and assigns and/or any other entity which shall succeed to the business presently being conducted by Company.\nBeing a contract for personal services, neither this Agreement nor any rights hereunder shall be assigned by Employee.\n17. Choice of Forum and Governing Law. In light of Company’s substantial contacts with the State of Missouri, the parties’ interests in\nensuring that disputes regarding the interpretation, validity and enforceability of this Agreement are resolved on a uniform basis, and Company’s\nexecution of, and the making of, this Agreement in Missouri, the parties agree that: (i) any litigation involving any noncompliance with or breach of\nthe Agreement, or regarding the interpretation, validity and/or enforceability of the Agreement, shall be filed and conducted in the state or federal\ncourts in St. Louis City or County, Missouri; and (ii) the Agreement shall be interpreted in accordance with and governed by the laws of the State of\nMissouri, without regard for any conflict of law principles.\n18. Notices. Except as otherwise provided for herein, any notices to be given by either party to the other shall be affected by personal\ndelivery in writing or by mail, registered or certified, postage prepaid, with return receipt requested. Mailed notices shall be addressed as follows:\na.\nIf to Company:\nMaxine Clark\nChief Executive Bear\n1954 Innerbelt Business Center\nSt. Louis, MO 63114\nb.\nIf to Employee:\n18. Arbitration. Any controversy or claim arising out of, or relating to this Agreement, the breach thereof, or Employee’s\nemployment by Company, shall, at Company’s sole option, be settled by binding arbitration in the County of St. Louis in accordance with\nthe rules then in force of the American Arbitration Association, and judgment upon the award rendered may be entered and enforced in\nany court having jurisdiction thereof. The controversies or claims subject to arbitration at Company’s option under this Agreement include,\nwithout limitation, those arising under Title VII of the Civil Rights Act of 1964, 42 U.S .C . Section 1981, the Age Discrimination in\nEmployment Act, the Americans with Disabilities Act, the Family and medical Leave Act, the Worker Adjustment and Retraining\n10\nNotification Act, the Missouri Human Rights Act, local laws governing employment, and the statutory and/or common law of contract and\ntort. In the event Employee commences any action in court which Company has the right to submit to binding arbitration, Company shall\nhave sixty (60) days from the date of service of a summons and complaint upon Company to direct in writing that all or any part of the\ndispute be arbitrated. Any remedy available in any court action shall also be available in arbitration.\n19. Headings. Section headings are provided in this Agreement for convenience only and shall not be deemed to substantively alter the\ncontent of such sections.\nPLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT EMPLOYEE (A) HAS\nRECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) HAS READ THIS\nAGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE\nAGREEMENT TO ASK ANY QUESTIONS EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY\nANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE’S RIGHTS AND OBLIGATIONS UNDER THE\nAGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nTHIS AGREEMENT CONTAINS A BINDING ARBIRTARTION PROVISION WHICH MAY BE ENFORCED BY\nCOMPANY.\n/s/ David Finnegan\nDave Finnegan\nAddress:\nBUILD-A-BEAR WORKSHOP, INC.\nBy: /s/ Maxine Clark\nName: Maxine Clark\nTitle: Chief Executive Bear\n11
3f85d1e60e155de4d89f90dd50561e51.pdf	jurisdiction	EXHIBIT 10.2\nNON-SOLICITATION , NON -COMPETITION\nAND CONFIDENTIALITY AGREEMENT\nThe undersigned enter into this NON-SOLICITATION , NON -COMPETITION AND CONFIDENTIALITY AGREEMENT (the “Agreement”) between Gentiva Health Services, Inc. including its subsidiaries, affiliates, divisions,\nsuccessors, and related entities (“Gentiva”) and\n(“Employee”), effective the date signed below by Employee.\nEmployee acknowledges and agrees that Gentiva is engaged in the highly competitive business of providing home healthcare and hospice services. Gentiva’s engagement in this business has involved and continues to involve the\nexpenditure of substantial amounts of money and the use of skills developed over a long period of time. As a result of these investments of money, skill and time, Gentiva has developed and will continue to develop certain valuable Trade\nSecrets and Confidential Information that are peculiar to Gentiva’s business and the disclosure of which would cause Gentiva great and irreparable harm. Gentiva also has invested a great deal of time and money in developing\nrelationships with its employees, vendors, patients and referral sources.\nEmployee acknowledges and agrees that in rendering services to Gentiva, Employee will be exposed to and learn much information about Gentiva’s business, including valuable Confidential Information and Trade Secrets, which\nEmployee would not have access to if not for Employee’s employment with Gentiva and which it would be unfair to disclose to others, or to use to Gentiva’s disadvantage.\nEmployee acknowledges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Gentiva’s legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and\ngoodwill with its employees and relationships and goodwill with its existing and prospective vendors, patients and referral sources.\nEmployee acknowledges that Employee’s skills, education and training qualify Employee to work and obtain employment which does not violate this Agreement and that the restrictions in this Agreement have been crafted as narrowly as\nreasonably possible to protect Gentiva’s legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and goodwill with its employees and relationships and good will with its existing and prospective\nvendors, patients and referral sources.\nIn consideration of the mutual promises and obligations in this Agreement, including but not limited to, Gentiva employing and/or continuing to employ Employee as an at-will employee, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby mutually acknowledged, Gentiva and Employee agree as follows:\n1.\nNon-Solicitation of Patients\nEmployee agrees that during Employee’s employment with Gentiva and for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not solicit or attempt to solicit (either directly or by assisting others) any business from Gentiva’s patients or prospective patients which are actively being sought by Gentiva at the time of Employee’s termination\nfor the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only to patients and prospective patients with whom Employee had\nMaterial Contact during the last two years of Employee’s employment with Gentiva. For purposes of this Section 1 “Material Contact” means contact between Employee and an existing or prospective patient of Gentiva: (a) with whom\nEmployee dealt on behalf of Gentiva within two years prior to the date of Employee’s termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee within two years prior to the date of Employee’s\ntermination; (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee’s association with Gentiva within two years prior to the date of Employee’s termination; or, (d) who\nreceives services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee’s termination.\n2.\nNon-Solicitation of Referral Sources\nEmployee agrees that during Employee’s employment with Gentiva and for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not solicit or attempt to solicit (either directly or by assisting others) any business or referrals from Gentiva’s referral sources or prospective referral sources which are actively being sought by Gentiva at the time\nof Employee’s termination for the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only to referral sources and prospective\nreferral sources with whom Employee had Material Contact during the last two years of Employee’s employment with Gentiva. For purposes of this Section 2 “Material Contact” means contact between Employee and an existing or\nprospective referral source of Gentiva: (a) with whom Employee dealt on behalf of Gentiva within two years prior to the date of Employee’s termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee\nwithin two years prior to the date of Employee’s termination; (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee’s association with Gentiva within two years prior to the\ndate of Employee’s termination; or, (d) who refers services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of\nEmployee’s termination.\nPage2of7\n3.\nNon-Solicitation of Employees\nEmployee agrees that during Employee’s employment with Gentiva and for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not recruit, hire or attempt to recruit or hire, or solicit or encourage to leave their employment with Gentiva (either directly or by assisting others) any other employee of Gentiva with whom Employee had\nMaterial Contact during the last two years of Employee’s employment with Gentiva. For purposes of this Section 3 “Material Contact” means contact for the purpose of furthering Gentiva’s business.\n4.\nNon-Competition\nEmployee agrees that during Employee’s employment with Gentiva, Employee will not (either directly or by assisting others) compete with Gentiva or engage in any activity or pursue any interest that in any way conflicts with Gentiva’s\ninterests.\nEmployee further agrees that for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee shall not (either on\nEmployee’s own behalf or on another’s behalf) perform job activities of the type Employee conducted or provided for Gentiva within the two years prior to Employee’s termination, for purposes of providing services that are competitive\nwith services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only within the territory where Employee is working for Gentiva at the time of Employee’s termination. Employee and Gentiva agree\nand acknowledge that the territory where Employee is working for Gentiva at the time of Employee’s termination includes the geographic territory within: (a) a 20 mile radius of every Gentiva office or facility over which or in which\nEmployee had job responsibilities at the time of Employee’s termination; (b) a 20 mile radius of every Gentiva office or facility which is included in Employee’s geographic territory of job responsibility at the time of Employee’s\ntermination; and, (c) a 50 mile radius of Employee’s primary place of employment at the time of Employee’s termination. Employee agrees that because of the nature of Gentiva’s business, the nature of Employee’s job responsibilities,\nand the nature of the Confidential Information and Trade Secrets of Gentiva to which Gentiva will give Employee access, any breach of this provision by Employee would result in the inevitable disclosure of Gentiva’s Trade Secrets and\nConfidential Information to its direct competitors.\n5.\nConfidentiality\nDuring Employee’s employment with Gentiva and at any time after the termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee will not publish or\ndisclose, use for Employee’s own benefit or the benefit of others, or divulge or convey to others, any Trade Secrets of Gentiva or that of third parties obtained by Employee in the course of Employee’s employment with Gentiva. “Trade\nSecret” means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under\nPage3of7\napplicable law. This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Trade Secrets.\nEmployee further agrees that during Employee’s employment with Gentiva and at any time after the termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee,\nEmployee will not publish or disclose, use for Employee’s own benefit or the benefit of others, or divulge or convey to others, any Confidential Information of Gentiva. “Confidential Information” means any and all Gentiva data and\ninformation in any form whatsoever, tangible or intangible, which: relates to the business of Gentiva, regardless of whether the data or information constitutes a Trade Secret; is disclosed to Employee or of which Employee became aware\nas a consequence of Employee’s relationship with Gentiva; has value to Gentiva; and is not generally known to Gentiva’s competitors. Confidential Information includes Gentiva’s Trade Secrets, Gentiva’s methods of operation, names of\nGentiva patients and referral sources, Gentiva price lists, Gentiva’s financial information and projections, and personnel data on Gentiva employees. Confidential Information does not include data or information: (a) which has been\nvoluntarily disclosed to the public by Gentiva, except where such public disclosure has been made by Employee without authorization from Gentiva; (b) which has been independently developed and disclosed by others; or (c) which has\notherwise entered the public domain through lawful means. This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Confidential\nInformation.\n6.\nReturn of Gentiva Property\nUpon termination of Employee’s employment with Gentiva or at any other time at Gentiva’s request, Employee agrees to deliver promptly to Gentiva all Gentiva property, including, but not limited to, patient lists or names, addresses and\nservices, patient background information, patient files, patient care directives, all drawings, blueprints, manuals, letters, notes, notebooks, reports, sketches, formulae, manufacturing processes, source codes, computer programs and similar\nitems, memoranda, information and materials concerning actual and prospective referral sources, patients or business lists and all other materials and all copies thereof relating in any way to Gentiva’s business or patients which were\nobtained by Employee during the period of Employee’s employment with Gentiva which are in Employee’s possession, custody or control. Employee further agrees not to make or retain any copies of any of the foregoing and will so\nrepresent to Gentiva upon termination of Employee’s employment.\n7.\nProprietary Information and Inventions\nEmployee agrees that any and all information and data originated by Employee while employed by Gentiva and, where applicable, by other employees or associates under Employee’s direction or supervision in connection with or as a\nresult of Employee’s employment, shall be promptly disclosed to Gentiva, shall become Gentiva’s property, and shall be kept confidential by Employee. Any and all such information and data,\nPage4of7\nreduced to written, graphic, or other tangible form and any and all copies and reproductions thereof shall be furnished to Gentiva upon request and in any case shall be returned to Gentiva upon termination of Employee’s employment with\nGentiva.\nEmployee agrees that Employee will promptly disclose to Gentiva all inventions or discoveries made, conceived, or for the first time reduced to practice in connection with or as a result of the work and/or services Employee performs for\nGentiva.\nEmployee agrees that Employee will assign the entire right, title, and interest in any such invention or inventions and any patents that may be granted thereon in any country in the world concerning such inventions to Gentiva. Employee\nfurther agrees that Employee will, without expense to Gentiva, execute all documents and do all acts which may be necessary, desirable, or convenient to enable Gentiva, at its expense, to file and prosecute applications for patents on such\ninventions, and to maintain patents granted thereon.\n8.\nNon-Disparagement\nEmployee agrees that during Employee’s employment with Gentiva and for a period of three (3) years following the termination of Employee’s employment with Gentiva, Employee will not take any action or make any statement which\ndisparages Gentiva or its practices or which disrupts or impairs Gentiva’s normal operations. Nothing in this provision shall limit any common law or statutory rights of Gentiva or obligations of Employee.\n9.\nEquitable Relief\nEmployee acknowledges that Employee possesses unique skills, knowledge and ability, and agrees that any breach of the provisions of this Agreement would cause Gentiva irreparable injury which would not reasonably or adequately be\ncompensated by damages in an action at law. Therefore, Employee agrees that Gentiva shall be entitled, in addition to any other remedies it may have under this Agreement, at law or otherwise, to immediate injunctive and other equitable\nrelief to prevent or curtail any breach of this Agreement by Employee. Nothing in this Agreement shall prohibit Gentiva from seeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches this\nAgreement.\n10.\nSeverability and Modification\nEmployee and Gentiva expressly agree that the covenants and agreements contained in this Agreement are independent, separate, severable, and divisible, and in the event any portion or portions of such paragraphs are declared invalid or\nunenforceable, the validity of the remaining paragraphs of this Agreement will not be affected. If any provision contained herein shall for any reason be held excessively broad or unreasonable as to time, territory, activity, services or\ninterest to be protected or otherwise unenforceable, the court is hereby empowered and requested to modify such provision by narrowing it, so as to make it reasonable and enforceable to the extent provided under applicable law.\nPage5of7\n11.\nWaiver\nThe waiver by Gentiva of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any subsequent breach by Employee or of any of Gentiva’s rights under this Agreement.\n12.\nEntire Agreement\nThis Agreement contains the entire agreement between Employee and Gentiva with respect to the subject matters contained in the Agreement. It may not be changed orally, but only by an agreement in writing signed by the President of\nGentiva and Employee. This Agreement supersedes any prior or contemporaneous discussions, negotiations, understandings, arrangements, or agreements between Gentiva and Employee with respect to the subject matters contained in\nthis Agreement.\n13.\nFuture Employers\nEmployee agrees that Gentiva may notify anyone employing Employee or evidencing an intention to employ Employee as to the existence and provisions of this Agreement and may provide any such person or organization a copy of this\nAgreement. Employee agrees that for a period of two (2) years after termination of Employee’s employment with Gentiva for any reason, Employee will provide Gentiva with the identity of any employer Employee goes to work for along\nwith Employee’s job title and anticipated job duties with any such employer. Employee further agrees to provide a copy of this Agreement to anyone who employs Employee within two (2) years of the termination of Employee’s\nemployment with Gentiva.\n14.\nAttorneys’ Fees and Costs\nIn the event Employee breaches this Agreement, Employee shall be liable to Gentiva for all costs of enforcement, including attorneys’ fees and court costs, in addition to all other damages and redress available to Gentiva in equity or in\nlaw.\n15.\nBinding Effect\nThe covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be enforceable by Gentiva and its successors, assigns, and successors-in-interest, including, without limitation, any corporation, partnership,\nor other entity with which Gentiva may be merged or by which it may be acquired. Employee may not assign Employee’s rights and obligations under this Agreement to any other party.\n16.\nEmployment At-Will Relationship\nEmployee and Gentiva agree that nothing in this Agreement alters the at-will nature of Employee’s employment relationship with Gentiva and that either Employee or Gentiva may terminate the employment relationship at any time for\nany reason. Employee further agrees that nothing in this Agreement limits Gentiva’s right to alter or modify Employee’s job title or job duties and responsibilities any time at Gentiva’s discretion.\nPage6of7\n17.\nChoice of Law And Exclusive Jurisdiction and Venue\nEmployee and Gentiva agree that this Agreement shall be governed by and construed under the laws of the State of Georgia. Employee and Gentiva further agree that it is their intent that the provisions in this Agreement which are covered\nby O.C .G .A . §§ 13-8-50 through 13-8 -59 (“Georgia Statute”) shall be governed by the Georgia Statute and that this Agreement should be interpreted to maximize the scope of the enforceability of its terms consistent with the Georgia\nStatute. Employee and Gentiva also agree that the exclusive venue for any dispute arising under this Agreement shall be either the Superior Court of Cobb County, Georgia or the United States District Court for the Northern District of\nGeorgia, Atlanta Division. Employee and Gentiva consent to the jurisdiction and venue of these courts and waive any challenge to the jurisdiction and venue of these courts.\nIN WITNESS WHEREOF, Gentiva and Employee have executed this Agreement as of the day and year set forth below.\nEMPLOYEE:\nGENTIVA HEALTH SERVICES, INC .\nBy:\nBy:\nSignature\nSignature\nPrint Name\nPrint Name\nDate:\nTitle\nDate:\nPage7of7	EX HIB IT 102\nNON-SOLICITATION, NON-COMPETITION\nAND CONFIDENTIALITY AGREEMENT\nThe undersigned enter into this NON-SOLICITATION, NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (the "Agreement") between Gentiva Health Services, Inc. including its subsidiaries, affiliates, divisions, successors, and related entities (”Gentiva") and ("Employee"), effective the date signed below by Employee. Employee acknow\nedges and agrees that Gentiva is engaged in the highly competitive business of providing home healthcare and hospice services. Gentiva’s engagement in this business has involved and continues to involve the\nexpenditure of substantial amounts of money and the use of skills developed over a long period of time. As a result of these investments of money, skill and time, Gentiva has developed and will continue to develop certain valuable Trade Secrets and Confi ential Information that are peculiarto Gentiva's business and the disclosure of which would cause Gentiva great and irreparable harm. Gentiva also has invested a great deal of time and money in developing relationships with i\nEmployee acknow\nts employees, vendors, patients and referral sources.\nedges and agrees that in rendering services to Gentiva, Employee will be exposed to and learn much information about Gentiva's business, including valuable Confidential Information and Trade Secrets, which\nEmployee would not have access to if not for Employee's employment with Gentiva and which it would be unfairto disclose to others, orto use to Gentiva’s disadvantage Employee acknow\nedges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Gentiva’s legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and\ngoodwill with its employees and relationships and goodwill with its existing and prospective vendors, patients and referral sources.  \nEmployee acknow\nedges that Employee’s skills, education and training qualify Employee to work and obtain employment which does not violate this Agreement and that the restrictions in this Agreement have been crafted as narrowly as\nreasonably possible to protect Gentiva's legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and goodwill with its employees and relationships and good will with its existing and prospective vendors, patients and referral sources. In consideration of the mutual promises and obligations in this Agreement, including but not limited to, Gentiva employing and/or continuing to employ Employee as an at-will employee, and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, Gentiva and Employee agree as follows:\f—\nl. Non-Solicimtjon of Patients\nEmployee agrees that during Employee's employment with Gentiva and for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not solicit or attempt to solicit (either directly or by assisting others) any business from Gentiva's patients or prospective patients which are actively being sought by Gentiva at the time of Employee' 5 termination\nfor the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee' 5 termination This restriction shall apply only to patients and prospective patients with whom Employee had\nMaterial Contact during the last two years of Employee's employment with Gentiva. For purposes of this Section 1 "Material Contact" means conmct between Employee and an existing or prospective patient of Gentiva: (a) with whom\nEmployee dealt on behalf of Gentiva within two years prior to the date of Employee's termination,- (b) whose dealings with Gentiva were coordinated or supervised by Employee within two years prior to the date of Employee’s\ntermination,- (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee's association with Gentiva within two years prior to the date of Employee's termination,- or, (d) who\nreceives services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee's termination.\n2. Non-Solicimtjon of Referral Sources\nEmployee agrees that during Employee's employment with Gentiva and for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not solicit or attempt to solicit (either directly or by assisting others) any business or referrals from Gentiva' s referral sources or prospective referral sources which are actively being sought by Gentiva at the time\nof Employee' 5 termination for the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee' 5 termination. This restriction shall apply only to referral sources and prospective\nreferral sources with whom Employee had Material Conmct during the last two years of Employee' 5 employment with Gentiva. For purposes of this Section 2 ”Material Conmct" means contact between Employee and an existing or\nprospective referral source of Gentiva: (a) with whom Employee dealt on behalf of Gentiva within two years priorto the date of Employee’s termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee\nwithin two years priorto the date of Employee' 5 termination; (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee' 5 association with Gentiva within two years prior to the\ndate of Employee' 5 termination,- or, (d) who refers services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of\nEmployee's termination\nPage 2 of 7\n3. Non-Solicimtion of Employees\nEmployee agrees that during Employee's employment with Gentiva and for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not recruit, hire or attempt to recruit or hire, or solicit or encourage to leave their employment with Gentiva (either directly or by assisting others) any other employee of Gentiva with whom Employee had\nMaterial Contact during the last two years of Employee's employment with Gentiva. For purposes of this Section 3 "Material Contact" means conmct for the purpose of furthering Gentiva’s business.\n4. Non-C ompetition\nEmployee agrees that during Employee's employment with Gentiva, Employee will not (either directly or by assisting others) compete with Gentiva or engage in any activity or pursue any interest that in any way conflicts with Gentiva’s\ninterests\nEmployee further agrees that for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee shall not (either on\nEmployee's own behalf or on another’ 5 behalf) perform job activities of the type Employee conducted or provided for Gentiva within the two years prior to Employee' 5 termination, for purposes of providing services that are competitive\nwith services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only within the territory where Employee is working for Gentiva at the time of Employee's termination Employee and Gentiva agree\nand acknowledge that the territory where Employee is working for Gentiva at the time of Employee' 5 termination includes the geographic territory within: (a) a 20 mile radius of every Gentiva office or facility over which or in which\nEmployee had job responsibilities at the time of Employee' 5 termination; (b) a 20 mile radius of every Gentiva office or facility which is included in Employee's geographic territory of job responsibility at the time of Employee' 5\ntermination,- and, (c) a 50 mile radius of Employee’s primary place of employment at the time of Employee' 5 termination Employee agrees that because of the nature of Gentiva’s business, the nature of Employee's job responsibilities,\nand the nature of the Confidential Information and Trade Secrets of Gentiva to which Gentiva will give Employee access, any breach of this provision by Employee would result in the inevitable disclosure of Gentiva' 5 Trade Secrets and\nConfidential Information to its direct competitors.\n5. Confidentiality\nDuring Employee' 5 employment with G entiva and at any time after the termination of Employee' s employment with G entiva, either with or without cause upon the initiative of either G entiva or Employee, Employee will not publish or\ndisclose, use for Employee’s own benefit or the benefit of others, or divulge or convey to others, any Trade Secrets of Gentiva or that of third parties obtained by Employee in the course of Employee’s employment with Gentiva "Trade\nSecret" means any and all information, knowledge or dam in any form whatsoever, tangible or intangible, that is considered a trade secret under\nPage 3 of 7\napplicable law, This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Trade Secrets.\nEmployee further agrees that during Employee' s employment with Gentiva and at any time after the termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee,\nEmployee will not publish or disclose, use for Employee's own benefit or the benefit of others, or divulge or convey to others, any Confidential Information of Gentiva. "Confidential Information" means any and all Gentiva dam and\ninformation in any form whatsoever, tangible or intangible, which: relates to the business of Gentiva, regardless of whether the data or information constitutes a Trade Secret; is disclosed to Employee or of which Employee became aware\nas a consequence of Employee’s relationship with Gentiva; has value to Gentiva; and is not generally known to Gentiva’s competitors Confidential Information includes Gentiva's Trade Secrets, Gentiva’s methods of operation, names of\nGentiva patients and referral sources, Gentiva price lists, Gentiva's financial information and projections, and personnel data on Gentiva employees. Confidential Information does not include data or information: (a) which has been\nvoluntarily disclosed to the public by Gentiva, except where such public disclosure has been made by Employee without authorization from Gentiva; (b) which has been independently developed and disclosed by others,- or (c) which has\notherwise entered the public domain through lawful means. This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Confidential\nInformation.\n6. Return of Gentiva Properg\nUpon termination of Employee' s employment with Gentiva or at any other time at Gentiva's request, Employee agrees to deliver promptly to Gentiva all Gentiva property, including, but not limited to, patient lists or names, addresses and\nservices, patient background information, patient files, patient care directives, all drawings, blueprints, manuals, letters, notes, notebooks, reports, sketches, formulae, manufacturing processes, source codes, computer programs and similar\nitems, memoranda, information and materials concerning actual and prospective referral sources, patients or business lists and all other materials and all copies thereof relating in any way to Gentiva' s business or patients which were\nobtained by Employee during the period of Employee’s employment with Gentiva which are in Employee’s possession, custody or control, Employee further agrees not to make or retain any copies of any of the foregoing and will so\nrepresent to Gentiva upon termination of Employee's employment.\n7. Propriet_ai_'y Information and Inventions\nEmployee agrees that any and all information and data originated by Employee while employed by Gentiva and, where applicable, by other employees or associates under Employee’s direction or supervision in connection with or as a\nresult of Employee' s employment, shall be promptly disclosed to Gentiva, shall become Gentiva's property, and shall be kept confidential by Employee. Any and all such information and data,\nPage 4 of 7\nreduced to written, graphic, or other tangible form and any and all copies and reproductions thereof shall be furnished to Gentiva upon request and in any case shall be returned to Gentiva upon termination of Employee' s employment with\nG entiva,\nEmployee agrees that Employee will promptly disclose to Gentiva all inventions or discoveries made, conceived, or for the first time reduced to practice in connection with or as a result of the work and/or services Employee performs for\nG entiva,\nEmployee agrees that Employee will assign the entire right, title, and interest in any such invention or inventions and any patents that may be granted thereon in any country in the world concerning such inventions to Gentiva. Employee\nfurther agrees that Employee will, without expense to Gentiva, execute all documents and do all acts which may be necessary, desirable, or convenient to enable Gentiva, at its expense, to file and prosecute applications for patents on such\ninventions, and to maintain patents granted thereon.\n8. Non-Digparagement\nEmployee agrees that during Employee's employment with Gentiva and for a period of three (3) years following the termination of Employee’s employment with Gentiva, Employee will not mke any action or make any statement which\ndisparages Gentiva or its practices or which disrupts orimpairs Gentiva's normal operations. Nothing in this provision shall limit any common law or statutory rights of Gentiva or obligations of Employee.\n9. E flihble Relief\nEmployee acknowledges that Employee possesses unique skills, knowledge and ability, and agrees that any breach of the provisions of this Agreement would cause Gentiva irreparable injury which would not reasonably or adequately be\ncompensated by damages in an action at law. Therefore, Employee agrees that Gentiva shall be entitled, in addition to any other remedies it may have under this Agreement, at law or otherwise, to immediate injunctive and other equitable\nrelief to prevent or curtail any breach of this Agreement by Employee, Nothing in this Agreement shall prohibit Gentiva from seeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches this\nA greement\n10. Severabilig and Modification\nEmployee and Gentiva expressly agree that the covenants and agreements conmined in this Agreement are independent, separate, severable, and divisible, and in the event any portion or portions of such paragraphs are declared invalid or\nunenforceable, the validity of the remaining paragraphs of this Agreement will not be affected. If any provision conmined herein shall for any reason he held excessively broad or unreasonable as to time, territory, activity, services or\ninterest to be protected or otherwise unenforceable, the court is hereby empowered and requested to modify such provision by narrowing it, so as to make it reasonable and enforceable to the extent provided under applicable law,\nPage 5 of 7\n11. Waiver\nThe waiver by Gentiva of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any subsequent breach by Employee or of any of Gentiva's rights under this Agreement.\n12. E ntjre Aggeement\nThis Agreement contains the entire agreement between Employee and Gentiva with respect to the subject matters contained in the Agreement. It may not be changed orally, but only by an agreement in writing signed by the President of\nGentiva and Employee. This Agreement supersedes any prior or contemporaneous discussions, negotiations, understandings, arrangements, or agreements between Gentiva and Employee with respect to the subject matters contained in\nthis A greement.\n13. Future Employers\nEmployee agrees that Gentiva may notify anyone employing Employee or evidencing an intention to employ Employee as to the existence and provisions of this Agreement and may provide any such person or organization a copy of this\nAgreement. Employee agrees that for a period of two (2) years after termination of Employee's employment with Gentiva for any reason, Employee will provide Gentiva with the identity of any employer Employee goes to work for along\nwith Employee’s job title and anticipated job duties with any such employer. Employee further agrees to provide a copy of this Agreement to anyone who employs Employee within two (2) years of the termination of Employee's\nemployment with Gentiva.\nl4. Attorngps‘ Fees and Costs\nIn the event Employee breaches this Agreement, Employee shall be liable to Gentiva for all costs of enforcement, including attorneys' fees and court costs, in addition to all other damages and redress available to Gentiva in equity or in\nlaw.\n15. Binding Effect\nThe covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be enforceable by Gentiva and its successors, assigns, and successors-in-interest, including, without limitation, any corporation, partnership,\nor other entity with which Gentiva may be merged or by which it may be acquired. Employee may not assign Employee’s rights and obligations under this Agreement to any other party.\n16. Employment At-W ill Relationship\nEmployee and Gentiva agree that nothing in this Agreement alters the at-will nature of Employee’s employment relationship with Gentiva and that either Employee or Gentiva may terminate the employment relationship at any time for\nany reason. Employee further agrees that nothing in this Agreement limits Gentiva’s right to alter or modify Employee's job title or job duties and responsibilities any time at Gentiva's discretion.\nPage 6 of 7\n17. Choice of Law And ExclusiveJurisdiction and Venue\nEmployee and Gentiva agree that this Agreement shall be governed by and construed under the laws of the State of Georgia Employee and Gentiva further agree that it is their intent that the provisions in this Agreement which are covered\nby 006 .A. §§ 13-8-50 through 13-8-59 (“Georgia Statute") shall be governed by the Georgia Statute and that this Agreement should be interpreted to maximize the scope of the enforceability of its terms consistent with the Georgia\nStatute Employee and Gentiva also agree that the exclusive venue for any dispute arising under this Agreement shall be either the Superior Court of Cobb County, Georgia or the United States District Court for the Northern District of\nGeorgia, Atlanta Division. Employee and Gentiva consent to the jurisdiction and venue of these courts and waive any challenge to the jurisdiction and venue of these courts.\nIN WITNESS WHEREOF, Gentiva and Employee have executed this Agreement as of the day and year set forth below.\nEMPLOYEE: GENTIVA HEALTH SERVICES, INC.\nBy: By:\nS—ture—igna 7W re\nPrint Name Print Name\nDate:\nT'fl—i e\nDate:\nPage 7 of 7	EXHIBIT 10.2\nNON-SOLICITATION, NON-COMPETITION\nAND CONFIDENTIALITY AGREEMENT\nThe undersigned enter into this NON-SOLICITATION, NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (the Agreement" between Gentiva Health Services, Inc. including its subsidiaries, affiliates, divisions,\nsuccessors, and related entities ("Gentiva") and\n""Employee"), effective the date signed below by Employee.\nEmployee acknowledges and agrees that Gentiva is engaged in the highly competitive business of providing home healthcare and hospice services. Gentiva's engagement in this business has involved and continues to involve the\nexpenditure of substantial amounts of money and the use of skills developed over a long period of time As a result of these investments of money, skill and time, Gentiva has developed and will continue to develop certain valuable Trade\nSecrets and Confidential Information that are peculiar to Gentiva's business and the disclosure of which would cause Gentiva great and irreparable harm Gentiva also has invested a great deal of time and money in developing\nrelationships with its employees, vendors, patients and referral sources.\nEmployee acknowledges and agrees that in rendering services to Gentiva, Employee will be exposed to and leam much information about Gentiva's business including valuable Confidential Information and Trade Secrets, which\nEmployee would not have access to if not for Employee's employment with Gentiva and which it would be unfair to disclose to others, or to use to Gentiva's disadvantage.\nEmployee acknowledges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Gentiva's legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and\ngoodwill with its employees and relationships and goodwill with its existing and prospective vendors, patients and referral sources.\nEmployee acknowledges that Employee's skills, education and training qualify Employee to work and obtain employment which does not violate this A greement and that the restrictions in this A greement have been crafted as narrowly as\nreasonably possible to protect Gentiva's legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and goodwill with its employees and relationships and good will with its existing and prospective\nvendors, patients and referral sources\nIn consideration of the mutual promises and obligations in this Agreement including but not limited to, Gentiva employing and/or continuing to employ Employee as an at will employee, and other good and valuable consideration the\nreceipt and sufficiency of which are hereby mutually acknowledged, Gentiva and Employee agree as follows:\n1.\nNon-Solicitation of Patients\nEmployee agrees that during Employee's employment with Gentiva and for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee wil not solicit or attempt to solicit (either directly or by assisting others) any business from Gentiva's patients or prospective patients which are actively being sought by Gentiva at the time of Employee's termination\nfor the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee's termination. This restriction shall apply only to patients and prospective patients with whom Employee had\nMaterial Contact during the last two years of Employee's employment with Gentiva. For purposes of this Section 1 "Material Contact" means contact between Employee and an existing or prospective patient of Gentiva: (a) with whom\nEmployee dealt on behalf of Gentiva within two years prior to the date of Employee's termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee within two years prior to the date of Employee's\ntermination (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee's association with Gentiva within two years prior to the date of Employee's termination; or, (d) who\nreceives services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee's termination.\n2.\nNon-Solicitation of Referral Sources\nEmployee agrees that during Employee's employment with Gentiva and for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva\nor\nEmployee, Employee will no solicit or attempt to solicit (either directly or by assisting others) any business or referrals from Gentiva's referral sources or prospective referral sources which are actively being sought by Gentiva at the time\nof Employee's termination for the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee's termination. This restriction shall apply only to referral sources and prospective\nreferral sources with whom Employee had Material Contact during the last two years of Employee's employment with Gentiva. For purposes of this Section 2 "Materia Contact" means contact between Employee and an existing or\nprospective referral source of Gentiva: (a) with whom Employee dealt on behalf of Gentiva within two years prior to the date of Employee's termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee\nwithin two years prior to the date of Employee's termination; (c) about whom Employee obtained confidentia information in the ordinary course of business as a result of Employee's association with Gentiva within two years prior to\nthe\ndate of Employee's termination; or, (d) who refers services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date\nof\nEmployee's termination.\nPage 2 of 7\n3.\nNon-Solicitation of Employees\nEmployee agrees that during Employee's employment with Gentiva and for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee wil not recruit hire or attempt to recruit or hire, or solicit or encourage to leave their employment with Gentiva (either directly or by assisting others) any other employee of Gentiva with whom Employee had\nMaterial Contact during the last two years of Employee's employment with Gentiva. For purposes of this Section 3 "Material Contact" means contact for the purpose of furthering Gentiva's business.\n4.\nNon -Competition\nEmployee agrees that during Employee's employment with Gentiva, Employee will not (either directly or by assisting others) compete with Gentiva or engage in any activity or pursue any interest that in any way conflicts with Gentiva's\ninterests.\nEmployee further agrees that for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee shall not (either on\nEmployee's own behalf or on another's behalf) perform job activities of the type Employee conducted or provided for Gentiva within the two years prior to Employee's termination, for purposes of providing services that are competitive\nwith services provided by Gentiva at the time of Employee's termination. This restriction shall apply only within the territory where Employee is working for Gentiva at the time of Employee's termination. Employee and Gentiva agree\nand acknowledge that the territory where Employee is working for Gentiva at the time of Employee's termination includes the geographic territory within: (a) a 20 mile radius of every Gentiva office or facility over which or in which\nEmployee had job responsibilities at the time of Employee's termination (b) a 20 mile radius of every Gentiva office or facility which is included in Employee's geographic territory of job responsibility at the time of Employee's\ntermination; and, (c) a 50 mile radius of Employee's primary place of employment at the time of Employee's termination Employee agrees that because of the nature of Gentiva's business, the nature of Employee' job responsibilities,\nand the nature of the Confidential Information and Trade Secrets of Gentiva to which Gentiva will give Employee access, any breach of this provision by Employee would result in the inevitable disclosure of Gentiva's Trade Secrets and\nConfidential Information to its direct competitors.\n5.\nConfidentiality\nDuring Employee's employment with Gentiva and at any time after the termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee will not publish or\ndisclose, use for Employee's own benefi or the benefit of others, or divulge or convey to others, any Trade Secrets of Gentiva or that of third parties obtained by Employee in the course of Employee's employment with Gentiva. "Trade\nSecret" means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under\nPage 3 of 7\napplicable law. This promise of confidentiality is in addition to, and does no limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Trade Secrets.\nEmployee further agrees that during Employee's employment with Gentiva and at any time after the termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee,\nEmployee will not publish or disclose, use for Employee's own benefit or the benefit of others, or divulge or convey to others, any Confidential Information of Gentiva. "Confidential Information" means any and all Gentiva data and\ninformation in any form whatsoever, tangible or intangible, which: relates to the business of Gentiva, regardless of whether the data or information constitutes a Trade Secret; is disclosed to Employee or of which Employee became aware\nas a consequence of Employee's relationship with Gentiva; has value to Gentiva; and is not generally known to Gentiva's competitors Confidential Information includes Gentiva's Trade Secrets, Gentiva's methods of operation names of\nGentiva patients and referral sources, Gentiva price lists, Gentiva's financial information and projections, and personnel data on Gentiva employees. Confidential Information does not include data or information: (a) which has been\nvoluntarily disclosed to the public by Gentiva, except where such public disclosure has been made by Employee without authorization from Gentiva; (b) which has been independently developed and disclosed by others; or (c) which has\notherwise entered the public domain through lawful means. This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure publication or use of its Confidential\nInformation.\n6.\nReturn of Gentiva Property\nUpon termination of Employee's employment with Gentiva or at any other time at Gentiva's request, Employee agrees to deliver promptly to Gentiva all Gentiva property, including, but not limited to, patien lists or names, addresses and\nservices, patient background inforation, patient files patient care directives, all drawings, blueprints, manuals, letters, notes, notebooks reports, sketches, formulae, manufacturing processes, source codes, computer programs and similar\nitems, memoranda, information and materials concerning actual and prospective referral sources, patients or business lists and all other materials and all copies thereof relating in any way to Gentiva's business or patients which were\nobtained by Employee during the period of Employee's employment with Gentiva which are in Employee's possession custody or control. Employee further agrees not to make or retain any copies of any of the foregoing and will so\nrepresent to Gentiva upon termination of Employee's employment.\n7.\nProprietary Information and Inventions\nEmployee agrees that any and all information and data originated by Employee while employed by Gentiva and, where applicable, by other employees or associates under Employee's direction or supervision in connection with or as a\nresult of Employee's employment, shall be promptly disclosed to Gentiva, shall become Gentiva's property, and shall be kept confidential by Employee. Any and all such information and data,\nPage 4 of 7\nreduced to written, graphic, or other tangible form and any and all copies and reproductions thereof shall be furnished to Gentiva upon request and in any case shall be returned to Gentiva upon termination of Employee's employment with\nGentiva.\nEmployee agrees that Employee will promptly disclose to Gentiva all inventions or discoveries made conceived, or for the first time reduced to practice in connection with or as a result of the work and/or services Employee performs for\nGentiva.\nEmployee agrees that Employee will assign the entire right, title, and interest in any such invention or inventions and any patents that may be granted thereon in any country in the world concerning such inventions to Gentiva. Employee\nfurther agrees that Employee will, without expense to Gentiva, execute all documents and do all acts which may be necessary, desirable, or convenient to enable Gentiva at its expense, to file and prosecute applications for patents on such\ninventions, and to maintain patents granted thereon.\n8.\nNon-Disparagement\nEmployee agrees that during Employee's employment with Gentiva and for a period of three (3) years following the termination of Employee's employment with Gentiva, Employee will not take any action or make any statement which\ndisparages Gentiva or its practices or which disrupts or impairs Gentiva's noral operations. Nothing in this provision shall limit any common law or statutory rights of Gentiva or obligations of Employee.\n9.\nEquitable Relief\nEmployee acknowledges that Employee possesses unique skills, knowledge and ability, and agrees that any breach of the provisions of this A greement would cause Gentiva irreparable injury which would not reasonably or adequately be\ncompensated by damages in an action at law. Therefore, Employee agrees that Gentiva shall be entitled in addition to any other remedies it may have under this Agreement, at law or otherwise, to immediate injunctive and other equitable\nrelief to prevent or curtai any breach of this Agreement by Employee. Nothing in this Agreement shall prohibit Gentiva from seeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches\nthis\nAgreement.\n10.\nSeverability and Modification\nEmployee and Gentiva expressly agree that the covenants and agreements contained in this A greement are independent, separate severable and divisible and in the event any portion or portions of such paragraphs are declared invalid or\nunenforceable, the validity of the remaining paragraphs of this Agreement will not be affected If any provision contained herein shall for any reason be held excessively broad or unreasonable as to time, territory, activity, services or\ninterest to be protected or otherwise unenforceable, the court is hereby empowered and requested to modify such provision by narrowing it, so as to make it reasonable and enforceable to the extent provided under applicable law.\nPage 5 of 7\n11.\nw Waiver\nThe waiver by Gentiva of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any subsequent breach by Employee or of any of Gentiva's rights under this Agreement.\n12.\nEntire Agreement\nThis Agreement contains the entire agreement between Employee and Gentiva with respect to the subject matters contained in the Agreement. It may not be changed orally, but only by an agreement in writing signed by the President of\nGentiva and Employee This Agreement supersedes any prior or contemporaneous discussions, negotiations, understandings, arrangements, or agreements between Gentiva and Employee with respect to the subject matters contained in\nthis Agreement.\n13.\nFuture Employers\nEmployee agrees that Gentiva may notify anyone employing Employee or evidencing an intention to employ Employee as to the existence and provisions of this Agreement and may provide any such person or organization a copy of this\nAgreement Employee agrees that for a period of two (2) years after termination of Employee's employment with Gentiva for any reason Employee will provide Gentiva with the identity of any employer Employee goes to work for along\nwith Employee's job title and anticipated job duties with any such employer. Employee further agrees to provide a copy of this Agreement to anyone who employs Employee within two (2) years of the termination of Employee's\nemployment with Gentiva.\n14.\nAttorneys Fees and Costs\nIn the event Employee breaches this Agreement, Employee shall be liable to Gentiva for all costs of enforcement, including attomeys' fees and court costs, in addition to all other damages and redress available to Gentiva in equity or in\nlaw.\n15.\nBinding Effect\nThe covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be enforceable by Gentiva and its successors, assigns, and successors-in-interest, including, without limitation, any corporation, partnership,\nor other entity with which Gentiva may be merged or by which it may be acquired. Employee may not assign Employee's rights and obligations under this A greement to any other party.\n16.\nEmploymen At-Will Relationship\nEmployee and Gentiva agree that nothing in this A greement alters the at-will nature of Employee's employment relationship with Gentiva and that either Employee or Gentiva may terminate the employment relationship at any time for\nany reason. Employee further agrees that nothing in this Agreement limits Gentiva's right to alter or modify Employee' s job title or job duties and responsibilities any time at Gentiva's discretion.\nPage 6 of 7\n17.\nChoice of Law And Exclusive Jurisdiction and Venue\nEmployee and Gentiva agree that this Agreement shall be governed by and construed under the laws of the State of Georgia. Employee and Gentiva further agree that it is their intent that the provisions in this Agreement which are covered\nby O.C.G.A 13-8-50 through 13-8-59 ("Georgia Statute") shall be govered by the Georgia Statute and that this Agreement should be interpreted to maximize the scope of the enforceability of its terms consistent with the Georgia\nStatute. Employee and Gentiva also agree that the exclusive venue for any dispute arising under this Agreement shall be either the Superior Court of Cobb County, Georgia or the United States District Court for the Northem District of\nGeorgia, Atlanta Division. Employee and Gentiva consent to the jurisdiction and venue of these courts and waive any challenge to the jurisdiction and venue of these courts.\nIN WITNESS WHEREOF, Gentiva and Employee have executed this Agreement as of the day and year set forth below.\nEMPLOY EE:\nGENTIVA HEALTH SERVICES INC.\nBy:\nBy:\nS1gnature\ns1gnature\nPrint Name\nPrint Name\nDate:\nTitle\nDate:\nPage 7 of 7	EXHIBIT 10.2\nNON-SOLICITATION , NON -COMPETITION\nAND CONFIDENTIALITY AGREEMENT\nThe undersigned enter into this NON-SOLICITATION , NON -COMPETITION AND CONFIDENTIALITY AGREEMENT (the “Agreement”) between Gentiva Health Services, Inc. including its subsidiaries, affiliates, divisions,\nsuccessors, and related entities (“Gentiva”) and\n(“Employee”), effective the date signed below by Employee.\nEmployee acknowledges and agrees that Gentiva is engaged in the highly competitive business of providing home healthcare and hospice services. Gentiva’s engagement in this business has involved and continues to involve the\nexpenditure of substantial amounts of money and the use of skills developed over a long period of time. As a result of these investments of money, skill and time, Gentiva has developed and will continue to develop certain valuable Trade\nSecrets and Confidential Information that are peculiar to Gentiva’s business and the disclosure of which would cause Gentiva great and irreparable harm. Gentiva also has invested a great deal of time and money in developing\nrelationships with its employees, vendors, patients and referral sources.\nEmployee acknowledges and agrees that in rendering services to Gentiva, Employee will be exposed to and learn much information about Gentiva’s business, including valuable Confidential Information and Trade Secrets, which\nEmployee would not have access to if not for Employee’s employment with Gentiva and which it would be unfair to disclose to others, or to use to Gentiva’s disadvantage.\nEmployee acknowledges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Gentiva’s legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and\ngoodwill with its employees and relationships and goodwill with its existing and prospective vendors, patients and referral sources.\nEmployee acknowledges that Employee’s skills, education and training qualify Employee to work and obtain employment which does not violate this Agreement and that the restrictions in this Agreement have been crafted as narrowly as\nreasonably possible to protect Gentiva’s legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and goodwill with its employees and relationships and good will with its existing and prospective\nvendors, patients and referral sources.\nIn consideration of the mutual promises and obligations in this Agreement, including but not limited to, Gentiva employing and/or continuing to employ Employee as an at-will employee, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby mutually acknowledged, Gentiva and Employee agree as follows:\n1.\nNon-Solicitation of Patients\nEmployee agrees that during Employee’s employment with Gentiva and for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not solicit or attempt to solicit (either directly or by assisting others) any business from Gentiva’s patients or prospective patients which are actively being sought by Gentiva at the time of Employee’s termination\nfor the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only to patients and prospective patients with whom Employee had\nMaterial Contact during the last two years of Employee’s employment with Gentiva. For purposes of this Section 1 “Material Contact” means contact between Employee and an existing or prospective patient of Gentiva: (a) with whom\nEmployee dealt on behalf of Gentiva within two years prior to the date of Employee’s termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee within two years prior to the date of Employee’s\ntermination; (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee’s association with Gentiva within two years prior to the date of Employee’s termination; or, (d) who\nreceives services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee’s termination.\n2.\nNon-Solicitation of Referral Sources\nEmployee agrees that during Employee’s employment with Gentiva and for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not solicit or attempt to solicit (either directly or by assisting others) any business or referrals from Gentiva’s referral sources or prospective referral sources which are actively being sought by Gentiva at the time\nof Employee’s termination for the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only to referral sources and prospective\nreferral sources with whom Employee had Material Contact during the last two years of Employee’s employment with Gentiva. For purposes of this Section 2 “Material Contact” means contact between Employee and an existing or\nprospective referral source of Gentiva: (a) with whom Employee dealt on behalf of Gentiva within two years prior to the date of Employee’s termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee\nwithin two years prior to the date of Employee’s termination; (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee’s association with Gentiva within two years prior to the\ndate of Employee’s termination; or, (d) who refers services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of\nEmployee’s termination.\nPage2of7\n3.\nNon-Solicitation of Employees\nEmployee agrees that during Employee’s employment with Gentiva and for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not recruit, hire or attempt to recruit or hire, or solicit or encourage to leave their employment with Gentiva (either directly or by assisting others) any other employee of Gentiva with whom Employee had\nMaterial Contact during the last two years of Employee’s employment with Gentiva. For purposes of this Section 3 “Material Contact” means contact for the purpose of furthering Gentiva’s business.\n4.\nNon-Competition\nEmployee agrees that during Employee’s employment with Gentiva, Employee will not (either directly or by assisting others) compete with Gentiva or engage in any activity or pursue any interest that in any way conflicts with Gentiva’s\ninterests.\nEmployee further agrees that for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee shall not (either on\nEmployee’s own behalf or on another’s behalf) perform job activities of the type Employee conducted or provided for Gentiva within the two years prior to Employee’s termination, for purposes of providing services that are competitive\nwith services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only within the territory where Employee is working for Gentiva at the time of Employee’s termination. Employee and Gentiva agree\nand acknowledge that the territory where Employee is working for Gentiva at the time of Employee’s termination includes the geographic territory within: (a) a 20 mile radius of every Gentiva office or facility over which or in which\nEmployee had job responsibilities at the time of Employee’s termination; (b) a 20 mile radius of every Gentiva office or facility which is included in Employee’s geographic territory of job responsibility at the time of Employee’s\ntermination; and, (c) a 50 mile radius of Employee’s primary place of employment at the time of Employee’s termination. Employee agrees that because of the nature of Gentiva’s business, the nature of Employee’s job responsibilities,\nand the nature of the Confidential Information and Trade Secrets of Gentiva to which Gentiva will give Employee access, any breach of this provision by Employee would result in the inevitable disclosure of Gentiva’s Trade Secrets and\nConfidential Information to its direct competitors.\n5.\nConfidentiality\nDuring Employee’s employment with Gentiva and at any time after the termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee will not publish or\ndisclose, use for Employee’s own benefit or the benefit of others, or divulge or convey to others, any Trade Secrets of Gentiva or that of third parties obtained by Employee in the course of Employee’s employment with Gentiva. “Trade\nSecret” means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under\nPage3of7\napplicable law. This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Trade Secrets.\nEmployee further agrees that during Employee’s employment with Gentiva and at any time after the termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee,\nEmployee will not publish or disclose, use for Employee’s own benefit or the benefit of others, or divulge or convey to others, any Confidential Information of Gentiva. “Confidential Information” means any and all Gentiva data and\ninformation in any form whatsoever, tangible or intangible, which: relates to the business of Gentiva, regardless of whether the data or information constitutes a Trade Secret; is disclosed to Employee or of which Employee became aware\nas a consequence of Employee’s relationship with Gentiva; has value to Gentiva; and is not generally known to Gentiva’s competitors. Confidential Information includes Gentiva’s Trade Secrets, Gentiva’s methods of operation, names of\nGentiva patients and referral sources, Gentiva price lists, Gentiva’s financial information and projections, and personnel data on Gentiva employees. Confidential Information does not include data or information: (a) which has been\nvoluntarily disclosed to the public by Gentiva, except where such public disclosure has been made by Employee without authorization from Gentiva; (b) which has been independently developed and disclosed by others; or (c) which has\notherwise entered the public domain through lawful means. This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Confidential\nInformation.\n6.\nReturn of Gentiva Property\nUpon termination of Employee’s employment with Gentiva or at any other time at Gentiva’s request, Employee agrees to deliver promptly to Gentiva all Gentiva property, including, but not limited to, patient lists or names, addresses and\nservices, patient background information, patient files, patient care directives, all drawings, blueprints, manuals, letters, notes, notebooks, reports, sketches, formulae, manufacturing processes, source codes, computer programs and similar\nitems, memoranda, information and materials concerning actual and prospective referral sources, patients or business lists and all other materials and all copies thereof relating in any way to Gentiva’s business or patients which were\nobtained by Employee during the period of Employee’s employment with Gentiva which are in Employee’s possession, custody or control. Employee further agrees not to make or retain any copies of any of the foregoing and will so\nrepresent to Gentiva upon termination of Employee’s employment.\n7.\nProprietary Information and Inventions\nEmployee agrees that any and all information and data originated by Employee while employed by Gentiva and, where applicable, by other employees or associates under Employee’s direction or supervision in connection with or as a\nresult of Employee’s employment, shall be promptly disclosed to Gentiva, shall become Gentiva’s property, and shall be kept confidential by Employee. Any and all such information and data,\nPage4of7\nreduced to written, graphic, or other tangible form and any and all copies and reproductions thereof shall be furnished to Gentiva upon request and in any case shall be returned to Gentiva upon termination of Employee’s employment with\nGentiva.\nEmployee agrees that Employee will promptly disclose to Gentiva all inventions or discoveries made, conceived, or for the first time reduced to practice in connection with or as a result of the work and/or services Employee performs for\nGentiva.\nEmployee agrees that Employee will assign the entire right, title, and interest in any such invention or inventions and any patents that may be granted thereon in any country in the world concerning such inventions to Gentiva. Employee\nfurther agrees that Employee will, without expense to Gentiva, execute all documents and do all acts which may be necessary, desirable, or convenient to enable Gentiva, at its expense, to file and prosecute applications for patents on such\ninventions, and to maintain patents granted thereon.\n8.\nNon-Disparagement\nEmployee agrees that during Employee’s employment with Gentiva and for a period of three (3) years following the termination of Employee’s employment with Gentiva, Employee will not take any action or make any statement which\ndisparages Gentiva or its practices or which disrupts or impairs Gentiva’s normal operations. Nothing in this provision shall limit any common law or statutory rights of Gentiva or obligations of Employee.\n9.\nEquitable Relief\nEmployee acknowledges that Employee possesses unique skills, knowledge and ability, and agrees that any breach of the provisions of this Agreement would cause Gentiva irreparable injury which would not reasonably or adequately be\ncompensated by damages in an action at law. Therefore, Employee agrees that Gentiva shall be entitled, in addition to any other remedies it may have under this Agreement, at law or otherwise, to immediate injunctive and other equitable\nrelief to prevent or curtail any breach of this Agreement by Employee. Nothing in this Agreement shall prohibit Gentiva from seeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches this\nAgreement.\n10.\nSeverability and Modification\nEmployee and Gentiva expressly agree that the covenants and agreements contained in this Agreement are independent, separate, severable, and divisible, and in the event any portion or portions of such paragraphs are declared invalid or\nunenforceable, the validity of the remaining paragraphs of this Agreement will not be affected. If any provision contained herein shall for any reason be held excessively broad or unreasonable as to time, territory, activity, services or\ninterest to be protected or otherwise unenforceable, the court is hereby empowered and requested to modify such provision by narrowing it, so as to make it reasonable and enforceable to the extent provided under applicable law.\nPage5of7\n11.\nWaiver\nThe waiver by Gentiva of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any subsequent breach by Employee or of any of Gentiva’s rights under this Agreement.\n12.\nEntire Agreement\nThis Agreement contains the entire agreement between Employee and Gentiva with respect to the subject matters contained in the Agreement. It may not be changed orally, but only by an agreement in writing signed by the President of\nGentiva and Employee. This Agreement supersedes any prior or contemporaneous discussions, negotiations, understandings, arrangements, or agreements between Gentiva and Employee with respect to the subject matters contained in\nthis Agreement.\n13.\nFuture Employers\nEmployee agrees that Gentiva may notify anyone employing Employee or evidencing an intention to employ Employee as to the existence and provisions of this Agreement and may provide any such person or organization a copy of this\nAgreement. Employee agrees that for a period of two (2) years after termination of Employee’s employment with Gentiva for any reason, Employee will provide Gentiva with the identity of any employer Employee goes to work for along\nwith Employee’s job title and anticipated job duties with any such employer. Employee further agrees to provide a copy of this Agreement to anyone who employs Employee within two (2) years of the termination of Employee’s\nemployment with Gentiva.\n14.\nAttorneys’ Fees and Costs\nIn the event Employee breaches this Agreement, Employee shall be liable to Gentiva for all costs of enforcement, including attorneys’ fees and court costs, in addition to all other damages and redress available to Gentiva in equity or in\nlaw.\n15.\nBinding Effect\nThe covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be enforceable by Gentiva and its successors, assigns, and successors-in-interest, including, without limitation, any corporation, partnership,\nor other entity with which Gentiva may be merged or by which it may be acquired. Employee may not assign Employee’s rights and obligations under this Agreement to any other party.\n16.\nEmployment At-Will Relationship\nEmployee and Gentiva agree that nothing in this Agreement alters the at-will nature of Employee’s employment relationship with Gentiva and that either Employee or Gentiva may terminate the employment relationship at any time for\nany reason. Employee further agrees that nothing in this Agreement limits Gentiva’s right to alter or modify Employee’s job title or job duties and responsibilities any time at Gentiva’s discretion.\nPage6of7\n17.\nChoice of Law And Exclusive Jurisdiction and Venue\nEmployee and Gentiva agree that this Agreement shall be governed by and construed under the laws of the State of Georgia. Employee and Gentiva further agree that it is their intent that the provisions in this Agreement which are covered\nby O.C .G .A . §§ 13-8-50 through 13-8 -59 (“Georgia Statute”) shall be governed by the Georgia Statute and that this Agreement should be interpreted to maximize the scope of the enforceability of its terms consistent with the Georgia\nStatute. Employee and Gentiva also agree that the exclusive venue for any dispute arising under this Agreement shall be either the Superior Court of Cobb County, Georgia or the United States District Court for the Northern District of\nGeorgia, Atlanta Division. Employee and Gentiva consent to the jurisdiction and venue of these courts and waive any challenge to the jurisdiction and venue of these courts.\nIN WITNESS WHEREOF, Gentiva and Employee have executed this Agreement as of the day and year set forth below.\nEMPLOYEE:\nGENTIVA HEALTH SERVICES, INC .\nBy:\nBy:\nSignature\nSignature\nPrint Name\nPrint Name\nDate:\nTitle\nDate:\nPage7of7
40195c43454bb219922c8132af9c909c.pdf	effective_date jurisdiction party term	EX-10.1 2 d507099dex101.htm EXHIBIT 10.1 - NON-COMPETE AND CONFIDENTIALITY AGREEMENT WITH\nJACK D. CRUSA\nExhibit 10.1\nNON-COMPETE AND CONFIDENTIALITY AGREEMENT\nThis Non-Compete and Confidentiality Agreement (this “Agreement”) is effective as of the 1st day of January, 2018 between Leggett &\nPlatt, Incorporated (“Company”), a Missouri corporation, and Jack Crusa (“Executive”).\nRECITALS\nA. Executive, through his global work in Company’s Specialized and Industrial Products Segments as well as his participation in company-wide\nstrategy and management sessions, is intimately familiar with many of Company’s products, customers and suppliers, has obtained confidential\nand trade secret business information of Company and its subsidiaries and has developed valuable expertise, goodwill, and business contacts and\nrelationships through his long tenure at the Company.\nB. Company wishes to restrict Executive’s ability to use such confidential information, trade secrets, expertise, business contacts and business\nrelationships in competition with Company’s business pursuits.\nC. Company and Executive have agreed to enter into this Agreement in recognition of the above.\nNOW THEREFORE, in consideration of the above and for good and valuable consideration, herein set forth, the parties intending to be\nlegally bound agree as follows:\nAGREEMENT\n1. Non-Competition. From January 1, 2018 and continuing for a period of three (3) years thereafter, Executive agrees as follows:\n1.1 . Executive will not (either individually or through any entity in which he may be an employee, agent, consultant, advisor, director,\nshareholder, partner or otherwise affiliated) directly or indirectly in any part of the Territory\na.\nengage in any Competitive Activities;\nb. design, develop, manufacture, assemble, process, distribute, market or sell any Covered Products, or advise, represent or\nconsult with any party not affiliated with Company in performing any of the foregoing;\nc.\nsolicit orders from or seek to do business with any customer or competitor of the Company or its affiliates relating to Covered\nProducts or Competitive Activities; or\nd.\ninfluence or attempt to influence any employee, representative, advisor, customer, or supplier of Company to terminate their\nemployment or relationship with the Company or its affiliates, or to alter their relationship in a way that would be detrimental\nto the Company or its affiliates.\n1.2 . Company’s subsidiaries and affiliates (i) are third party beneficiaries of this Section, (ii) shall have all rights and remedies allowed in\nlaw or equity (including injunctive relief) to prevent further violations, and (iii) may also seek damages resulting from any violation.\nExecutive has reviewed this Section and agrees the covenants are reasonable and necessary to protect Company and its affiliates.\n1\n1.3 . “Competitive Activities” means any manufacture, sale, distribution, engineering, development, design, management, promotion,\norganization, direction, capitalization, fundraising or other activities to compete, or form, promote, advance or develop any business which\ncompetes, with the business of the Company or any of the Company’s subsidiaries or affiliates.\n1.4 . “Covered Product” means any products produced or sold by the Company, or any of the Company’s affiliates, joint ventures or\nsubsidiaries (and any products that are competitive with or substitutes for such products), during Executive’s service as an employee to the\nCompany.\n1.5 . “Territory” means all of North America, Asia, Europe, and all other parts of the world in which Executive performed his duties for\nCompany (including without limitation the location of the businesses he managed directly or indirectly) at any time within the last five\nyears or where Company has sold any Covered Products.\n2. Confidentiality. Executive shall consider all information furnished by, or concerning, Company to be confidential and shall not disclose any\nsuch information to any other person, unless Executive obtains written permission from Company to do so. This paragraph shall apply, but is not\nlimited to, drawings, specifications, or other documents prepared by Executive for Company in connection with the Executive’s employment.\n“Confidential Information” shall include, without limitation, information not generally known or disclosed to the public relating to Company’s\npresent, past or future products, manufacturing procedures, processes, methods, equipment, compositions, raw materials, technology, inventions,\nformulas, trade secrets, finances, information systems, accounting, engineering, marketing, merchandising, personnel, research and development\nprograms, purchasing, sales methods, business records, suppliers, contracts, costs of production and overhead, customer lists, customer names\nand requirements, pricing and pricing strategies and any other confidential, technical, business or market information or data, and including\nanalyses, compilations, forecasts, studies, or other documents prepared by Company or its consultants and any and all documents prepared by\nExecutive which contain, utilize and/or are based upon any such Confidential Information.\n3. Violation of Terms. In the event that Company becomes aware of information giving rise to a good faith belief that Executive may have\nviolated or may be violating the terms of Sections 1 or 2, or both, Company shall be entitled to reasonably investigate whether such a violation\nhas occurred or is occurring, and Executive agrees to cooperate in any such investigation by providing complete and truthful information,\nincluding documents and testimony, to Company upon its request and without charge. Company shall not be required to institute legal\nproceedings in order to conduct an investigation pursuant to this section, but Company shall not be precluded from doing so. During the\npendency of the good faith investigation, Company shall have no obligation to make any payment otherwise due under Section 4. If such good\nfaith investigation concludes without a finding of breach, Company shall promptly pay Executive any missed payment.\nIn the event of a breach of Sections 1 or 2, or both, by Executive, Company shall have no further obligation to make the payments set forth in\nSection 4 below, and shall be entitled to immediately withhold such payments as have not been made and, at its election, seek specific\nperformance of Executive’s obligations hereunder, seek recovery of any payments that have already been made to Executive hereunder plus\ncompensatory and other damages, or seek any combination of equitable relief and damages that is permissible under applicable law. Executive\nfurther agrees that any breach or threatened breach of Sections 1 or 2, or both, will cause irreparable injury to Company, and that money damages\nalone will not provide an adequate remedy to Company. In addition, Company shall be entitled to recover reasonable attorney fees and other\ncosts in the event it prevails in any legal action or other proceedings to enforce any section of this Agreement.\n2\n4. Payment. In consideration for Executive’s covenants set forth herein, Company shall pay Executive a total sum of $450,000, less lawful\nwithholdings and other required taxes, to be paid in three (3) annual installments of $150,000 each, on January 15, 2018, January 15, 2019 and\nJanuary 15, 2020, contingent on Executive’s compliance with Sections 1 and 2. Executive understands and agrees that Company (or any of its\nrepresentatives) has made no express or implied representations concerning the tax implications of any noncompete payment made to Executive\npursuant to this Agreement.\n5. Term and Termination. This Agreement is effective as of the date first set forth above, and will remain in force until the expiration noted in\nSection 1.\n6. Governing Law. This Agreement shall be governed by the laws of the State of Missouri. Any claim, action or proceeding seeking to interpret\nor enforce any provision of, or based on any right arising out of, this Agreement shall only be brought in a state or federal court having situs\nwithin a court of Jasper County, Missouri or the federal district court for the Western District of Missouri and each of the parties consents and\nsubmits to the exclusive jurisdiction of such courts (and to the appropriate appellate courts) in any such claim, action or proceeding, and further\nwaives any objection it may have now or hereafter to such venue, including any objection based on the grounds of forum non conveniens.\n7. Severability and Modification. Should any provision of this Agreement be declared or be determined by any Court of competent jurisdiction to\nbe illegal, invalid, void, or unenforceable, the legality, validity and enforceability of the remaining parts, terms, or provisions shall not be affected\nthereby, and any said illegal, unenforceable or invalid part, term or provision shall be deemed not to be a part of this Agreement. While the\nparties agree that the restrictions imposed in this Agreement are reasonable and necessary to protect the legitimate interest of Company, if any\nprovision of this Agreement should later be determined to be invalid or unenforceable to any extent, the parties agree that the remainder of this\nAgreement shall not in any way be affected and shall be enforced to the greatest extent provided by law. The parties further agree that a court\nmay reasonably modify this Agreement by narrowing any provisions found to be unenforceable to the extent necessary to make them\nenforceable, and making a corresponding equitable reduction to the compensation otherwise due under Section 4 to reflect the lesser value of the\nrestriction as narrowed.\n8. Related Agreements. Company and Executive acknowledge and agree that there are other agreements between them that provide for similar\nobligations to those set forth herein. This Agreement, and the obligations of the parties hereunder, shall be in addition to any obligations provided\nunder other agreements existing or that may in the future be executed between Company and Executive. Nothing in this Agreement shall, or shall\nbe deemed to, supersede, replace or modify any of the provisions of such other agreements, and nothing in any other agreements between\nCompany and Executive, whether previously or subsequently executed, shall amend, modify, supplement or alter this Agreement unless and to\nthe extent such other agreement is made in writing and expressly provides that it amends, modifies, supplements or alters this Agreement.\nLEGGETT & PLATT, INCORPORATED\n/s/ Jack D. Crusa\nBy: /s/ Scott S. Douglas\nJack Crusa\nTitle: Senior Vice President\nDate: 12-4 -17\nDate: 12-4 -17\n3	EX-10.1 2 d507099dex101.htm EXHIBIT 10.1 - NON-COMPETE AND CONFIDENTIALITY AGREEMENT WITH\nJACK D. CRUSA\nExhibit 10.1\nNON-COMPETE AND CONFIDENTIALITY AGREEMENT\nThis Non-Compete and Confidentiality Agreement (this “Agreement”) is effective as of the 1st day of January, 2018 between Leggett &\nPlatt, Incorporated (“Company”), a Missouri corporation, and Jack Crusa (“Executive”).\nRECITALS\nA. Executive, through his global work in Company’s Specialized and Industrial Products Segments as well as his participation in company-wide\nstrategy and management sessions, is intimately familiar with many of Company’s products, customers and suppliers, has obtained confidential\nand trade secret business information of Company and its subsidiaries and has developed valuable expertise, goodwill, and business contacts and\nrelationships through his long tenure at the Company.\nB. Company wishes to restrict Executive’s ability to use such confidential information, trade secrets, expertise, business contacts and business\nrelationships in competition with Company’s business pursuits.\nC. Company and Executive have agreed to enter into this Agreement in recognition of the above.\nNOW THEREFORE, in consideration of the above and for good and valuable consideration, herein set forth, the parties intending to be\nlegally bound agree as follows:\nAGREEMENT\n1. Non-Competition. From January 1, 2018 and continuing for a period of three (3) years thereafter, Executive agrees as follows:\n \n1.1. Executive will not (either individually or through any entity in which he may be an employee, agent, consultant, advisor, director,\nshareholder, partner or otherwise affiliated) directly or indirectly in any part of the Territory\na. engage in any Competitive Activities;\nb. design, develop, manufacture, assemble, process, distribute, market or sell any Covered Products, or advise, represent or\nconsult with any party not affiliated with Company in performing any of the foregoing;\nC. solicit orders from or seek to do business with any customer or competitor of the Company or its affiliates relating to Covered\nProducts or Competitive Activities; or\nd. influence or attempt to influence any employee, representative, advisor, customer, or supplier of Company to terminate their\nemployment or relationship with the Company or its affiliates, or to alter their relationship in a way that would be detrimental\nto the Company or its affiliates.\n1.2. Company’s subsidiaries and affiliates (i) are third party beneficiaries of this Section, (ii) shall have all rights and remedies allowed in\nlaw or equity (including injunctive relief) to prevent further violations, and (iii) may also seek damages resulting from any violation.\nExecutive has reviewed this Section and agrees the covenants are reasonable and necessary to protect Company and its affiliates.\n1\n1.3. “Competitive Activities” means any manufacture, sale, distribution, engineering, development, design, management, promotion,\norganization, direction, capitalization, fundraising or other activities to compete, or form, promote, advance or develop any business which\ncompetes, with the business of the Company or any of the Company’s subsidiaries or affiliates.\n1.4. “Covered Product” means any products produced or sold by the Company, or any of the Company’s affiliates, joint ventures or\nsubsidiaries (and any products that are competitive with or substitutes for such products), during Executive’s service as an employee to the\nCompany.\n1.5. “Territory” means all of North America, Asia, Europe, and all other parts of the world in which Executive performed his duties for\nCompany (including without limitation the location of the businesses he managed directly or indirectly) at any time within the last five\nyears or where Company has sold any Covered Products.\n2. Confidentiality. Executive shall consider all information furnished by, or concerning, Company to be confidential and shall not disclose any\nsuch information to any other person, unless Executive obtains written permission from Company to do so. This paragraph shall apply, but is not\nlimited to, drawings, specifications, or other documents prepared by Executive for Company in connection with the Executive’s employment.\n“Confidential Information” shall include, without limitation, information not generally known or disclosed to the public relating to Company’s\npresent, past or future products, manufacturing procedures, processes, methods, equipment, compositions, raw materials, technology, inventions,\nformulas, trade secrets, finances, information systems, accounting, engineering, marketing, merchandising, personnel, research and development\nprograms, purchasing, sales methods, business records, suppliers, contracts, costs of production and overhead, customer lists, customer names\nand requirements, pricing and pricing strategies and any other confidential, technical, business or market information or data, and including\nanalyses, compilations, forecasts, studies, or other documents prepared by Company or its consultants and any and all documents prepared by\nExecutive which contain, utilize and/or are based upon any such Confidential Information.\n3. Violation of Terms. In the event that Company becomes aware of information giving rise to a good faith belief that Executive may have\nviolated or may be violating the terms of Sections 1 or 2, or both, Company shall be entitled to reasonably investigate whether such a violation\nhas occurred or is occurring, and Executive agrees to cooperate in any such investigation by providing complete and truthful information,\nincluding documents and testimony, to Company upon its request and without charge. Company shall not be required to institute legal\nproceedings in order to conduct an investigation pursuant to this section, but Company shall not be precluded from doing so. During the\npendency of the good faith investigation, Company shall have no obligation to make any payment otherwise due under Section 4. If such good\nfaith investigation concludes without a finding of breach, Company shall promptly pay Executive any missed payment.\n \nIn the event of a breach of Sections 1 or 2, or both, by Executive, Company shall have no further obligation to make the payments set forth in\nSection 4 below, and shall be entitled to immediately withhold such payments as have not been made and, at its election, seek specific\nperformance of Executive’s obligations hereunder, seek recovery of any payments that have already been made to Executive hereunder plus\ncompensatory and other damages, or seek any combination of equitable relief and damages that is permissible under applicable law. Executive\nfurther agrees that any breach or threatened breach of Sections 1 or 2, or both, will cause irreparable injury to Company, and that money damages\nalone will not provide an adequate remedy to Company. In addition, Company shall be entitled to recover reasonable attorney fees and other\ncosts in the event it prevails in any legal action or other proceedings to enforce any section of this Agreement.\n2\n4. Payment. In consideration for Executive’s covenants set forth herein, Company shall pay Executive a total sum of $450,000, less lawful\nwithholdings and other required taxes, to be paid in three (3) annual installments of $150,000 each, on January 15, 2018, January 15, 2019 and\nJanuary 15, 2020, contingent on Executive’s compliance with Sections 1 and 2. Executive understands and agrees that Company (or any of its\nrepresentatives) has made no express or implied representations concerning the tax implications of any noncompete payment made to Executive\npursuant to this Agreement.\n5. Term and Termination. This Agreement is effective as of the date first set forth above, and will remain in force until the expiration noted in\nSection 1.\n6. Governing Law. This Agreement shall be governed by the laws of the State of Missouri. Any claim, action or proceeding seeking to interpret\nor enforce any provision of, or based on any right arising out of, this Agreement shall only be brought in a state or federal court having situs\nwithin a court of Jasper County, Missouri or the federal district court for the Western District of Missouri and each of the parties consents and\nsubmits to the exclusive jurisdiction of such courts (and to the appropriate appellate courts) in any such claim, action or proceeding, and further\nwaives any objection it may have now or hereafter to such venue, including any objection based on the grounds of forum non conveniens.\n \n7. Severability and Modification. Should any provision of this Agreement be declared or be determined by any Court of competent jurisdiction to\nbe illegal, invalid, void, or unenforceable, the legality, validity and enforceability of the remaining parts, terms, or provisions shall not be affected\nthereby, and any said illegal, unenforceable or invalid part, term or provision shall be deemed not to be a part of this Agreement. While the\nparties agree that the restrictions imposed in this Agreement are reasonable and necessary to protect the legitimate interest of Company, if any\nprovision of this Agreement should later be determined to be invalid or unenforceable to any extent, the parties agree that the remainder of this\nAgreement shall not in any way be affected and shall be enforced to the greatest extent provided by law. The parties further agree that a court\nmay reasonably modify this Agreement by narrowing any provisions found to be unenforceable to the extent necessary to make them\nenforceable, and making a corresponding equitable reduction to the compensation otherwise due under Section 4 to reflect the lesser value of the\nrestriction as narrowed.\n \n8. Related Agreements. Company and Executive acknowledge and agree that there are other agreements between them that provide for similar\nobligations to those set forth herein. This Agreement, and the obligations of the parties hereunder, shall be in addition to any obligations provided\nunder other agreements existing or that may in the future be executed between Company and Executive. Nothing in this Agreement shall, or shall\nbe deemed to, supersede, replace or modify any of the provisions of such other agreements, and nothing in any other agreements between\nCompany and Executive, whether previously or subsequently executed, shall amend, modify, supplement or alter this Agreement unless and to\nthe extent such other agreement is made in writing and expressly provides that it amends, modifies, supplements or alters this Agreement.\nLEGGETT & PLATT, INCORPORATED\n/s/ Jack D. Crusa By:  /s/ Scott S. Douglas\nJack Crusa\nTitle: Senior Vice President\nDate: 12-4-17 Date: 12-4-17	EX-10.1 2 d507099dex101.htm EXHIBIT 10.1 - NON-COMPETE AND CONFIDENTIALITY AGREEMENT WITH\nJACK D. CRUSA\nExhibit 10.1\nNON-COMPETE AND CONFIDENTIALITY AGREEMENT\nThis Non-Compete and Confidentiality Agreement (this "Agreement") is effective as of the 1st day of January, 2018 between Leggett &\nPlatt, Incorporated ("Company"), a Missouri corporation, and Jack Crusa ("Executive").\nRECITALS\nA. Executive, through his global work in Company's Specialized and Industrial Products Segments as well as his participation in company-wide\nstrategy and management sessions, is intimately familiar with many of Company's products, customers and suppliers, has obtained confidential\nand trade secret business information of Company and its subsidiaries and has developed valuable expertise, goodwill, and business contacts and\nrelationships through his long tenure at the Company.\nB. Company wishes to restrict Executive's ability to use such confidential information, trade secrets, expertise, business contacts and business\nrelationships in competition with Company's business pursuits.\nC. Company and Executive have agreed to enter into this Agreement in recognition of the above.\nNOW THEREFORE, in consideration of the above and for good and valuable consideration, herein set forth, the parties intending to be\nlegally bound agree as follows:\nAGREEMENT\n1. Non-Competition. From January 1, 2018 and continuing for a period of three (3) years thereafter, Executive agrees as follows:\n1.1. Executive will not (either individually or through any entity in which he may be an employee, agent, consultant, advisor, director,\nshareholder, partner or otherwise affiliated) directly or indirectly in any part of the Territory\na.\nengage in any Competitive Activities;\nb.\ndesign, develop, manufacture, assemble, process, distribute, market or sell any Covered Products, or advise, represent or\nconsult with any party not affiliated with Company in performing any of the foregoing;\nC.\nsolicit orders from or seek to do business with any customer or competitor of the Company or its affiliates relating to Covered\nProducts or Competitive Activities; or\nd.\ninfluence or attempt to influence any employee, representative, advisor, customer, or supplier of Company to terminate their\nemployment or relationship with the Company or its affiliates, or to alter their relationship in a way that would be detrimental\nto the Company or its affiliates.\n1.2. Company's subsidiaries and affiliates (i) are third party beneficiaries of this Section, (ii) shall have all rights and remedies allowed in\nlaw or equity (including injunctive relief) to prevent further violations, and (iii) may also seek damages resulting from any violation.\nExecutive has reviewed this Section and agrees the covenants are reasonable and necessary to protect Company and its affiliates.\n1\n1.3. "Competitive Activities" means any manufacture, sale, distribution, engineering, development, design, management, promotion,\norganization, direction, capitalization, fundraising or other activities to compete, or form, promote, advance or develop any business which\ncompetes, with the business of the Company or any of the Company's subsidiaries or affiliates.\n1.4. "Covered Product" means any products produced or sold by the Company, or any of the Company's affiliates, joint ventures or\nsubsidiaries (and any products that are competitive with or substitutes for such products), during Executive's service as an employee to the\nCompany.\n1.5. "Territory" means all of North America, Asia, Europe, and all other parts of the world in which Executive performed his duties for\nCompany (including without limitation the location of the businesses he managed directly or indirectly) at any time within the last five\nyears or where Company has sold any Covered Products.\n2. Confidentiality.. Executive shall consider all information furnished by, or concerning, Company to be confidential and shall not disclose any\nsuch information to any other person, unless Executive obtains written permission from Company to do so. This paragraph shall apply, but is not\nlimited to, drawings, specifications, or other documents prepared by Executive for Company in connection with the Executive's employment.\n"Confidential Information" shall include, without limitation, information not generally known or disclosed to the public relating to Company's\npresent, past or future products, manufacturing procedures, processes, methods, equipment, compositions, raw materials, technology, inventions,\nformulas, trade secrets, finances, information systems, accounting, engineering, marketing, merchandising, personnel, research and development\nprograms, purchasing, sales methods, business records, suppliers, contracts, costs of production and overhead, customer lists, customer names\nand requirements, pricing and pricing strategies and any other confidential, technical, business or market information or data, and including\nanalyses, compilations, forecasts, studies, or other documents prepared by Company or its consultants and any and all documents prepared by\nExecutive which contain, utilize and/or are based upon any such Confidential Information.\n3. Violation of. Terms. In the event that Company becomes aware of information giving rise to a good faith belief that Executive may have\nviolated or may be violating the terms of Sections 1 or 2, or both, Company shall be entitled to reasonably investigate whether such a violation\nhas occurred or is occurring, and Executive agrees to cooperate in any such investigation by providing complete and truthful information,\nincluding documents and testimony, to Company upon its request and without charge. Company shall not be required to institute legal\nproceedings in order to conduct an investigation pursuant to this section, but Company shall not be precluded from doing so. During the\npendency of the good faith investigation, Company shall have no obligation to make any payment otherwise due under Section 4. If such good\nfaith investigation concludes without a finding of breach, Company shall promptly pay Executive any missed payment.\nIn the event of a breach of Sections 1 or 2, or both, by Executive, Company shall have no further obligation to make the payments set forth in\nSection 4 below, and shall be entitled to immediately withhold such payments as have not been made and, at its election, seek specific\nperformance of Executive's obligations hereunder, seek recovery of any payments that have already been made to Executive hereunder plus\ncompensatory and other damages, or seek any combination of equitable relief and damages that is permissible under applicable law. Executive\nfurther agrees that any breach or threatened breach of Sections 1 or 2, or both, will cause irreparable injury to Company, and that money damages\nalone will not provide an adequate remedy to Company. In addition, Company shall be entitled to recover reasonable attorney fees and other\ncosts in the event it prevails in any legal action or other proceedings to enforce any section of this Agreement.\n2\n4. Payment. In consideration for Executive's covenants set forth herein, Company shall pay Executive a total sum of $450,000, less lawful\nwithholdings and other required taxes, to be paid in three (3) annual installments of $150,000 each, on January 15, 2018, January 15, 2019 and\nJanuary 15, 2020, contingent on Executive's compliance with Sections 1 and 2. Executive understands and agrees that Company (or any of its\nrepresentatives) has made no express or implied representations concerning the tax implications of any noncompete payment made to Executive\npursuant to this Agreement.\n5. Term and Termination. This Agreement is effective as of the date first set forth above, and will remain in force until the expiration noted in\nSection 1.\n6. Governing. Law. This Agreement shall be governed by the laws of the State of Missouri. Any claim, action or proceeding seeking to interpret\nor enforce any provision of, or based on any right arising out of, this Agreement shall only be brought in a state or federal court having situs\nwithin a court of Jasper County, Missouri or the federal district court for the Western District of Missouri and each of the parties consents and\nsubmits to the exclusive jurisdiction of such courts (and to the appropriate appellate courts) in any such claim, action or proceeding, and further\nwaives any objection it may have now or hereafter to such venue, including any objection based on the grounds of forum non conveniens.\n7. Severability and Modification. Should any provision of this Agreement be declared or be determined by any Court of competent jurisdiction to\nbe\nillegal, invalid, void, or unenforceable, the legality, validity and enforceability of the remaining parts, terms, or provisions shall not be affected\nthereby, and any said illegal, unenforceable or invalid part, term or provision shall be deemed not to be a part of this Agreement. While the\nparties agree that the restrictions imposed in this Agreement are reasonable and necessary to protect the legitimate interest of Company, if any\nprovision\nof this Agreement should later be determined to be invalid or unenforceable to any extent, the parties agree that the remainder of\nthis\nAgreement shall not in any way be affected and shall be enforced to the greatest extent provided by law. The parties further agree that a court\nmay reasonably modify this Agreement by narrowing any provisions found to be unenforceable to the extent necessary to make them\nenforceable, and making a corresponding equitable reduction to the compensation otherwise due under Section 4 to reflect the lesser value of\nthe\nrestriction as narrowed.\n8.\nRelated Agreements. Company and Executive acknowledge and agree that there are other agreements between them that provide for similar\nobligations to those set forth herein. This Agreement, and the obligations of the parties hereunder, shall be in addition to any obligations provided\nunder other agreements existing or that may in the future be executed between Company and Executive. Nothing in this Agreement shall, or shall\nbe deemed to, supersede, replace or modify any of the provisions of such other agreements, and nothing in any other agreements between\nCompany and Executive, whether previously or subsequently executed, shall amend, modify, supplement or alter this Agreement unless and to\nthe extent such other agreement is made in writing and expressly provides that it amends, modifies, supplements or alters this Agreement.\nLEGGETT & PLATT, INCORPORATED\n/s/ Jack D. Crusa\nBy: /s/ Scott S. Douglas\nJack Crusa\nTitle: Senior Vice President\nDate: 12-4-17\nDate: 12-4-17\n3	EX-10.1 2 d507099dex101.htm EXHIBIT 10.1 - NON-COMPETE AND CONFIDENTIALITY AGREEMENT WITH\nJACK D. CRUSA\nExhibit 10.1\nNON-COMPETE AND CONFIDENTIALITY AGREEMENT\nThis Non-Compete and Confidentiality Agreement (this “Agreement”) is effective as of the 1st day of January, 2018 between Leggett &\nPlatt, Incorporated (“Company”), a Missouri corporation, and Jack Crusa (“Executive”).\nRECITALS\nA. Executive, through his global work in Company’s Specialized and Industrial Products Segments as well as his participation in company-wide\nstrategy and management sessions, is intimately familiar with many of Company’s products, customers and suppliers, has obtained confidential\nand trade secret business information of Company and its subsidiaries and has developed valuable expertise, goodwill, and business contacts and\nrelationships through his long tenure at the Company.\nB. Company wishes to restrict Executive’s ability to use such confidential information, trade secrets, expertise, business contacts and business\nrelationships in competition with Company’s business pursuits.\nC. Company and Executive have agreed to enter into this Agreement in recognition of the above.\nNOW THEREFORE, in consideration of the above and for good and valuable consideration, herein set forth, the parties intending to be\nlegally bound agree as follows:\nAGREEMENT\n1. Non-Competition. From January 1, 2018 and continuing for a period of three (3) years thereafter, Executive agrees as follows:\n1.1 . Executive will not (either individually or through any entity in which he may be an employee, agent, consultant, advisor, director,\nshareholder, partner or otherwise affiliated) directly or indirectly in any part of the Territory\na.\nengage in any Competitive Activities;\nb. design, develop, manufacture, assemble, process, distribute, market or sell any Covered Products, or advise, represent or\nconsult with any party not affiliated with Company in performing any of the foregoing;\nc.\nsolicit orders from or seek to do business with any customer or competitor of the Company or its affiliates relating to Covered\nProducts or Competitive Activities; or\nd.\ninfluence or attempt to influence any employee, representative, advisor, customer, or supplier of Company to terminate their\nemployment or relationship with the Company or its affiliates, or to alter their relationship in a way that would be detrimental\nto the Company or its affiliates.\n1.2 . Company’s subsidiaries and affiliates (i) are third party beneficiaries of this Section, (ii) shall have all rights and remedies allowed in\nlaw or equity (including injunctive relief) to prevent further violations, and (iii) may also seek damages resulting from any violation.\nExecutive has reviewed this Section and agrees the covenants are reasonable and necessary to protect Company and its affiliates.\n1\n1.3 . “Competitive Activities” means any manufacture, sale, distribution, engineering, development, design, management, promotion,\norganization, direction, capitalization, fundraising or other activities to compete, or form, promote, advance or develop any business which\ncompetes, with the business of the Company or any of the Company’s subsidiaries or affiliates.\n1.4 . “Covered Product” means any products produced or sold by the Company, or any of the Company’s affiliates, joint ventures or\nsubsidiaries (and any products that are competitive with or substitutes for such products), during Executive’s service as an employee to the\nCompany.\n1.5 . “Territory” means all of North America, Asia, Europe, and all other parts of the world in which Executive performed his duties for\nCompany (including without limitation the location of the businesses he managed directly or indirectly) at any time within the last five\nyears or where Company has sold any Covered Products.\n2. Confidentiality. Executive shall consider all information furnished by, or concerning, Company to be confidential and shall not disclose any\nsuch information to any other person, unless Executive obtains written permission from Company to do so. This paragraph shall apply, but is not\nlimited to, drawings, specifications, or other documents prepared by Executive for Company in connection with the Executive’s employment.\n“Confidential Information” shall include, without limitation, information not generally known or disclosed to the public relating to Company’s\npresent, past or future products, manufacturing procedures, processes, methods, equipment, compositions, raw materials, technology, inventions,\nformulas, trade secrets, finances, information systems, accounting, engineering, marketing, merchandising, personnel, research and development\nprograms, purchasing, sales methods, business records, suppliers, contracts, costs of production and overhead, customer lists, customer names\nand requirements, pricing and pricing strategies and any other confidential, technical, business or market information or data, and including\nanalyses, compilations, forecasts, studies, or other documents prepared by Company or its consultants and any and all documents prepared by\nExecutive which contain, utilize and/or are based upon any such Confidential Information.\n3. Violation of Terms. In the event that Company becomes aware of information giving rise to a good faith belief that Executive may have\nviolated or may be violating the terms of Sections 1 or 2, or both, Company shall be entitled to reasonably investigate whether such a violation\nhas occurred or is occurring, and Executive agrees to cooperate in any such investigation by providing complete and truthful information,\nincluding documents and testimony, to Company upon its request and without charge. Company shall not be required to institute legal\nproceedings in order to conduct an investigation pursuant to this section, but Company shall not be precluded from doing so. During the\npendency of the good faith investigation, Company shall have no obligation to make any payment otherwise due under Section 4. If such good\nfaith investigation concludes without a finding of breach, Company shall promptly pay Executive any missed payment.\nIn the event of a breach of Sections 1 or 2, or both, by Executive, Company shall have no further obligation to make the payments set forth in\nSection 4 below, and shall be entitled to immediately withhold such payments as have not been made and, at its election, seek specific\nperformance of Executive’s obligations hereunder, seek recovery of any payments that have already been made to Executive hereunder plus\ncompensatory and other damages, or seek any combination of equitable relief and damages that is permissible under applicable law. Executive\nfurther agrees that any breach or threatened breach of Sections 1 or 2, or both, will cause irreparable injury to Company, and that money damages\nalone will not provide an adequate remedy to Company. In addition, Company shall be entitled to recover reasonable attorney fees and other\ncosts in the event it prevails in any legal action or other proceedings to enforce any section of this Agreement.\n2\n4. Payment. In consideration for Executive’s covenants set forth herein, Company shall pay Executive a total sum of $450,000, less lawful\nwithholdings and other required taxes, to be paid in three (3) annual installments of $150,000 each, on January 15, 2018, January 15, 2019 and\nJanuary 15, 2020, contingent on Executive’s compliance with Sections 1 and 2. Executive understands and agrees that Company (or any of its\nrepresentatives) has made no express or implied representations concerning the tax implications of any noncompete payment made to Executive\npursuant to this Agreement.\n5. Term and Termination. This Agreement is effective as of the date first set forth above, and will remain in force until the expiration noted in\nSection 1.\n6. Governing Law. This Agreement shall be governed by the laws of the State of Missouri. Any claim, action or proceeding seeking to interpret\nor enforce any provision of, or based on any right arising out of, this Agreement shall only be brought in a state or federal court having situs\nwithin a court of Jasper County, Missouri or the federal district court for the Western District of Missouri and each of the parties consents and\nsubmits to the exclusive jurisdiction of such courts (and to the appropriate appellate courts) in any such claim, action or proceeding, and further\nwaives any objection it may have now or hereafter to such venue, including any objection based on the grounds of forum non conveniens.\n7. Severability and Modification. Should any provision of this Agreement be declared or be determined by any Court of competent jurisdiction to\nbe illegal, invalid, void, or unenforceable, the legality, validity and enforceability of the remaining parts, terms, or provisions shall not be affected\nthereby, and any said illegal, unenforceable or invalid part, term or provision shall be deemed not to be a part of this Agreement. While the\nparties agree that the restrictions imposed in this Agreement are reasonable and necessary to protect the legitimate interest of Company, if any\nprovision of this Agreement should later be determined to be invalid or unenforceable to any extent, the parties agree that the remainder of this\nAgreement shall not in any way be affected and shall be enforced to the greatest extent provided by law. The parties further agree that a court\nmay reasonably modify this Agreement by narrowing any provisions found to be unenforceable to the extent necessary to make them\nenforceable, and making a corresponding equitable reduction to the compensation otherwise due under Section 4 to reflect the lesser value of the\nrestriction as narrowed.\n8. Related Agreements. Company and Executive acknowledge and agree that there are other agreements between them that provide for similar\nobligations to those set forth herein. This Agreement, and the obligations of the parties hereunder, shall be in addition to any obligations provided\nunder other agreements existing or that may in the future be executed between Company and Executive. Nothing in this Agreement shall, or shall\nbe deemed to, supersede, replace or modify any of the provisions of such other agreements, and nothing in any other agreements between\nCompany and Executive, whether previously or subsequently executed, shall amend, modify, supplement or alter this Agreement unless and to\nthe extent such other agreement is made in writing and expressly provides that it amends, modifies, supplements or alters this Agreement.\nLEGGETT & PLATT, INCORPORATED\n/s/ Jack D. Crusa\nBy: /s/ Scott S. Douglas\nJack Crusa\nTitle: Senior Vice President\nDate: 12-4 -17\nDate: 12-4 -17\n3
411633d4b0a9472564e5820a12ed14df.pdf	effective_date jurisdiction party term	EX-99.(D).(5) 17 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nMarch 17, 2010\nFLIR Systems, Inc.\n27700 SW Parkway Ave.\nWilsonville. OR 97070\nAttention: Mr. Craig Stoehr\nDirector - Corporate Development and Investor Relations\nConfidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (a “Transaction”) involving ICx Technologies, Inc. or certain of its affiliates,\nsubsidiaries, assets and/or business divisions (collectively, the “Company”), you have requested information. In consideration of, and as a condition\nto, your being furnished with such information and any other Evaluation Material (as defined below), the Company hereby requests your agreement\nas set forth herein. As used in this letter agreement (this “Agreement”), the term “Evaluation Material” means all information regarding the\nCompany, its businesses, technology, products, prospects and plans, a Transaction or the fact that the Company may pursue a Transaction with you\nor other parties, the existence and terms of this Letter Agreement and other information furnished to you in connection with the Transaction by the\nCompany or any of its Representatives (as defined below), irrespective of form or medium of communication, whether prepared by the Company, its\nRepresentatives or otherwise and whether furnished before, on or after the date of this Agreement, together with any and all analyses, compilations,\nsummaries, forecasts, studies or other materials prepared by you or your Representatives that contain, are based on or otherwise incorporate, in\nwhole or part, such information. The term “Representatives” includes, without limitation, FLIR Systems, Inc.’s affiliates and its and their respective\ndirectors, officers, employees, advisors, agents, representatives, financial institutions providing or underwriting solely debt financing or “controlling\npersons” (within the meaning of the Securities Exchange Act of 1934, as amended (the “1934 Act”)); provided, that, should you provide Evaluation\nMaterial to any such financial institution seeking to arrange debt financing, you shall promptly provide written notice to the Company as to the\nidentity of any such financial institution. The Company is being advised by Stone Key Partners LLC and the Stone Key Securities division of\nHudson Partners Securities LLC (together, “Stone Key”).\nUse of Evaluation Materials\nYou and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating a possible Transaction with the Company\ninvolving you or your affiliates and (ii) will keep the Evaluation Material strictly confidential and (except as required by applicable law, regulation or\nlegal process, and only after compliance with the paragraph titled “Compelled Disclosure” below) will not, without the Company’s prior written\nconsent, disclose any information in the Evaluation Material to any person, except that the Evaluation Material (or portions thereof) may be\ndisclosed to those of your Representatives who need to know such information solely for the purpose of evaluating a possible Transaction with the\nCompany (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature of the Evaluation\nMaterial, will be provided with a copy of this Agreement and will agree to be bound by the terms hereof). You will make all reasonable, necessary\nand appropriate efforts to safeguard Evaluation\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 2\nMaterial from disclosure to anyone other than as permitted hereby. You agree to be responsible for any breach of this Agreement by your\nRepresentatives (including, without limitation, any actions or inactions by your Representatives that would constitute a breach if such\nRepresentatives were original signatories hereto).\nThe term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally known by the public\n(other than as a result of its disclosure by you or your Representatives) or (ii) was or becomes available to you on a non-confidential basis from a\nperson not otherwise bound by a confidentiality agreement with the Company or its Representatives or prohibited from transmitting the information\nto you by law, contractual obligation, fiduciary duly or otherwise. As used in this Agreement, the term “person” shall be broadly interpreted to\ninclude, without limitation, any corporation, company, joint venture, partnership, association or individual. You agree that the Evaluation Material is\nand shall remain the property of the Company or its subsidiaries and affiliates, as applicable, and that neither the Company nor any of its\nRepresentatives, subsidiaries or affiliates has granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by or on behalf of the Company.\nNon-Disclosure\nUnless otherwise required by applicable law in the reasonable written opinion of your legal counsel, but only after compliance with the paragraph\ntitled “Compelled Disclosure” below, neither you nor your Representatives will, without the Company’s prior written consent, disclose to any person\neither the fact that discussions or negotiations have taken or may take place concerning a possible Transaction, or any of the terms, conditions or\nother facts with respect to any such possible Transaction, including, without limitation, the status thereof, the existence and terms of this Agreement\nand the fact that the Evaluation Material has been made available to you. Without limiting the foregoing, you hereby expressly confirm and agree\nthat no public disclosure with respect to any discussions or negotiations concerning a possible Transaction is now required by reason of securities\nlaws or similar requirements related to general disclosure and in the event you determine that such disclosure is required in the future, no such\ndisclosures shall be made unless and until you have consulted, to the extent permitted by applicable law or cognizant authority, with the Company\nregarding the necessity and form of any such disclosure and otherwise complied with this paragraph.\nWithout limitation of the foregoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly,\nenter in any agreement, arrangement or understanding, or any discussions which might lead to an agreement, arrangement or understanding, with any\nperson regarding participation in a possible Transaction as a principal, coinvestor, an equity investor or any person other than a financial institution\nproviding or underwriting debt financing. For the avoidance of doubt, the term “Representatives” as applied to you shall not include any such\npotential principal, co-investor, equity investor or person other than a financial institution providing or underwriting debt financing.\nCompelled Disclosure\nIn the event that you are requested or required to disclose all or any part of the information contained in the Evaluation Material pursuant to the\nterms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory\nbody or\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 3\npursuant to a civil investigative demand or similar judicial process or otherwise, to the extent permitted by applicable law or cognizant authority, you\nwill (i) notify the Company in writing immediately of the existence, terms and circumstances surrounding such request or requirement, (ii) consult\nwith the Company on the advisability of taking legally available steps to resist or narrow such request or requirement, (iii) if disclosure of any such\ninformation is required, disclose only that portion of the information which, upon written advice of your legal counsel, you are legally required to\ndisclose and (iv) exercise your best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to such\ninformation. In any event, you will cooperate with the Company to obtain such a protective order or other assurance. Any expense you incur in\nconnection with the Company’s desire to narrow or limit the scope of the request or requirement shall be the responsibility of the Company.\nNon-Solicitation of Employees\nUntil the earlier of (i) the consummation by you of a Transaction, (ii) eighteen months after termination of discussions relating to a possible\nTransaction between you and the Company, and (iii) two years from the date of this Agreement, you will not, without the Company’s prior written\nconsent, directly or indirectly solicit for purposes of employment, offer to hire, entice away or offer to enter into any contract with, or hire any\nemployee of the Company: provided, however, that this paragraph shall not prohibit you or any of your Representatives from engagement in any\ngeneral advertising or general solicitation not targeted to the Company’s employees or hiring employees who respond to such a solicitation with no\nother action or by you or your Representatives in violation of this provision: and provided, further, that, following execution by you and the\nCompany of a definitive agreement providing for a Transaction between you and the Company, this paragraph shall not prohibit you or any of your\nRepresentatives from offering employees employment in anticipation of and conditioned upon the consummation of such Transaction.\nStandstill\nYou represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company or any securities or\ncontract rights (other than broadly based index funds) the terms or value of which are dependent on securities of the Company. For a period of two\nyears from the date of this Agreement, you will not, directly or indirectly, and you will cause any person or entity controlled by you not to, without\nthe prior written consent of the Board of Directors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire,\ndirectly or indirectly, any securities or property of the Company or any of its affiliates, or any securities or contract rights (other than broadly based\nindex funds) the terms or value of which are dependent on securities of the Company, (ii) propose to enter into, directly or indirectly, any merger,\nconsolidation, recapitalization, business combination, partnership, joint venture or other similar transaction involving the Company or any of its\naffiliates, (iii) make, or in any way participate in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect to the voting of any voting securities of the Company or any\nof its affiliates, (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any\nvoting securities of the Company or any of its affiliates, (v) negotiate, have any discussions or enter into any arrangements, understandings or\nagreements (whether written or oral) with, or advise, finance, assist or encourage, any other persons in connection with any of the foregoing, or,\nmake any investment in\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 4\nany other person that engages, or offers or proposes to engage, in any of the foregoing (it being understood that, without limiting the generality of the\nforegoing, you shall not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company), (vi) otherwise act,\nalone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vii) disclose any\nintention, plan or arrangement inconsistent with the foregoing or (viii) advise, assist or encourage any other persons in connection with any of the\nforegoing. Unless and until you have received the prior written invitation or approval of the Company to do so, you also agree during such period not\nto (x) request the Company (or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence), (y) take any action which might require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction or\n(z) communicate with the Company’s shareholders regarding the subject matter of this Agreement.\nProhibition on Trading\nIn addition, you hereby acknowledge that you are aware, and that you will advise your Representatives who receive any Evaluation Material, that the\nUnited States securities laws prohibit any person who has received from an issuer material, non public information from purchasing or selling\nsecurities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person (including, without limitation, any of your Representatives) is likely to purchase\nor sell such securities. You hereby agree that neither you nor your Representatives will use or communicate the Evaluation Material in violation of\nthese laws.\nReturn or Destruction of Documents\nIf you determine that you do not wish to proceed with a Transaction or your evaluation thereof, you will promptly advise the Company and Stone\nKey in writing of that decision. In that case, or in the event that (i) a Transaction is not consummated by you or (ii) at any time the Company so\nrequests, you will promptly (a) deliver to the Company all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives or (b) destroy all Evaluation Material in your\npossession or in the possession of any of your Representatives (such destruction to be certified by you in writing to the Company). Notwithstanding\nthe delivery or destruction of the Evaluation Material, you agree that you and your Representatives shall continue to be bound by your obligations\nunder this Agreement.\nNo Unauthorized Contact\nUnless otherwise agreed in writing by the Company, all (i) communications regarding any possible Transaction, (ii) requests for additional\ninformation or Evaluation Material, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures,\nwill be submitted or directed to Stone Key. You further agree not to contact any officers, directors or employees of the Company in connection with a\npossible Transaction without the prior written consent of the Company.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 5\nNo Obligation, Representation or Warranty\nThis Agreement does not constitute or create any obligation of the Company or its Representatives to provide any Evaluation Material or other\ninformation to you, but defines the duties and obligations of you and your Representatives with respect to the Evaluation Material to the extent it\nmay be disclosed or made available. Under no circumstances will the Company or any of its Representatives be obligated to disclose or make\navailable any information, including, without limitation, any Evaluation Material, which the Company in its sole and absolute discretion determines\nnot to disclose. You understand and acknowledge that none of the Company, Stone Key nor any of their respective Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information provided to\nyou by or on behalf of the Company. None of the Company. Stone Key nor any of their respective Representatives shall have any liability to you or\nany other person (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material, other than as may\nbe set forth in any definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement.\nYou agree that the Company will not be under any legal obligation of any kind whatsoever with respect to any Transaction by virtue of (x) this\nAgreement or (y) any written or oral expression or communication with respect to any Transaction by any of the Company’s Representatives except,\nin the case of this Agreement, for the matters specifically agreed to herein. You further acknowledge and agree that (i) the Company shall be free to\nconduct the process for a Transaction as the Company in its sole discretion shall determine (including, without limitation, negotiating with any other\nperson and entering into a definitive agreement without prior notice to you or any other person); (ii) any of the procedures relating to a Transaction\nmay be changed at any time without notice to you or any other person; (iii) the Company shall have the right to reject or accept any potential\nproposal, offer or participant therein, for any or no reason whatsoever, in its sole discretion; and (iv) neither you nor any of your Representatives\ncurrently have any claim whatsoever against the Company, Stone Key or any of their respective Representatives arising out of or relating to a\nTransaction based on this Agreement or otherwise.\nActing as Principal\nYou represent and warrant that you are acting as a principal in any possible Transaction and are not represented by any broker or similar party.\nLegal Remedy\nYou acknowledge that money damages and remedies at law will be inadequate to protect the Company against any actual or threatened breach of this\nAgreement by you or by your Representatives and, without prejudice to any rights and remedies otherwise available to the Company, you agree to\nthe granting of specific performance, injunctive relief and other equitable remedies in the Company’s favor without proof of actual damages, and you\nfurther agree to waive, and to cause your Representatives to waive, any requirement for the securing or posting of any bond in connection with any\nsuch remedy. In the event of any breach of this Agreement by you or your Representatives, you agree to reimburse the Company promptly upon\ndemand for all out-of-pocket costs and expenses incurred by it in the enforcement of its rights hereunder (including, without limitation, reasonable\nfees and disbursements of counsel).\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 6\nGoverning Law\nThe validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New\nYork, without giving effect to conflicts of laws principles. You irrevocably (i) submit to the jurisdiction of any court of the State of New York or the\nUnited States District Court for the Southern District of New York for the purpose of any suit, action, or other proceeding arising out of this\nAgreement, or any of the agreements or transactions contemplated hereby (each a “Proceeding”) and agree that service of any process, summons,\nnotice or document delivered by hand or sent by U.S. registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court, (ii) agree that all claims in respect of any Proceeding may be heard and determined\nin any such court, (iii) irrevocably waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from\njurisdiction of any such court or from any legal process therein, (iv) irrevocably waive, to the fullest extent permitted by law, any right to trial by\njury in any Proceeding, and (v) agree not to commence any Proceeding other than in such court, and waive, to the fullest extent permitted by\napplicable law, any claim that any such Proceeding is brought in an inconvenient forum.\nNo Waiver\nNo failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power or privilege.\nSuccessors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. You may not assign this\nAgreement or any part thereof without the prior written consent of the Company, and any purported assignment without such consent shall be null\nand void.\nSeverability\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or\nunenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect to the fullest extent\npermitted by applicable law and (ii) the invalid or unenforceable term or provision shall be replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Company’s intention with respect to such invalid or unenforceable term or provision.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 7\nEntire Agreement\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements\nand understandings relating to the matters provided for herein. This Agreement may not be amended or modified in any manner nor may any of its\nprovisions be waived except by written amendment executed by the parties. A waiver, amendment or modification shall only be effective if (a) it is\nin writing and signed by the Company and you, (b) it specifically refers to this Agreement and (c) it specifically states that the Company and/or you,\nas the case may be, is waiving or amending its rights hereunder. Any such amendment, modification or waiver shall be effective only in the specific\ninstance and for the purpose for which it was given. This Agreement shall, except as otherwise specifically set forth herein, cease to be effective two\nyears after the date hereof.\nCounterparts\nFor the convenience of the parties hereto, any number of counterparts of this Agreement may be executed by the parties hereto, each of which shall\nbe an original instrument and all of which taken together shall constitute one and the same Agreement. Delivery of a signed counterpart of this\nAgreement by e-mail or facsimile transmission shall constitute valid and sufficient delivery thereof.\nThis Agreement is being delivered to you in duplicate. Please execute and return one copy of this letter agreement which will constitute your\nagreement with respect to the subject matter of this Agreement.\nVery truly yours.\nICx Technologies, Inc.\nBy: /s/ James Luby\nName: James Luby\nTitle: Secretary\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 8\nConfirmed and Agreed to as of\nthe date first written above:\nFLIR Systems, Inc.\nBy: /s/ William W. Davis\nName: William W. Davis\nTitle: Senior Vice President, General Counsel &\nSecretary	EX-99.(D).(5) 17 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nMarch 17, 2010\nFLIR Systems, Inc.\n27700 SW Parkway Ave.\nWilsonville. OR 97070\nAttention: Mr. Craig Stoehr\nDirector - Corporate Development and Investor Relations\nConfidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (a “Transaction”) involving ICx Technologies, Inc. or certain of its affiliates,\nsubsidiaries, assets and/or business divisions (collectively, the “Company”), you have requested information. In consideration of, and as a condition\nto, your being furnished with such information and any other Evaluation Material (as defined below), the Company hereby requests your agreement\nas set forth herein. As used in this letter agreement (this “Agreement”), the term “Evaluation Material” means all information regarding the\nCompany, its businesses, technology, products, prospects and plans, a Transaction or the fact that the Company may pursue a Transaction with you\nor other parties, the existence and terms of this Letter Agreement and other information furnished to you in connection with the Transaction by the\nCompany or any of its Representatives (as defined below), irrespective of form or medium of communication, whether prepared by the Company, its\nRepresentatives or otherwise and whether furnished before, on or after the date of this Agreement, together with any and all analyses, compilations,\nsummaries, forecasts, studies or other materials prepared by you or your Representatives that contain, are based on or otherwise incorporate, in\nwhole or part, such information. The term “Representatives” includes, without limitation, FLIR Systems, Inc.’s affiliates and its and their respective\ndirectors, officers, employees, advisors, agents, representatives, financial institutions providing or underwriting solely debt financing or “controlling\npersons” (within the meaning of the Securities Exchange Act of 1934, as amended (the “1934 Act”)); provided, that, should you provide Evaluation\nMaterial to any such financial institution seeking to arrange debt financing, you shall promptly provide written notice to the Company as to the\nidentity of any such financial institution. The Company is being advised by Stone Key Partners LL.C and the Stone Key Securities division of\nHudson Partners Securities LLC (together, “Stone Key”).\nUse of Evaluation Materials\nYou and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating a possible Transaction with the Company\ninvolving you or your affiliates and (ii) will keep the Evaluation Material strictly confidential and (except as required by applicable law, regulation or\nlegal process, and only after compliance with the paragraph titled “Compelled Disclosure” below) will not, without the Company’s prior written\nconsent, disclose any information in the Evaluation Material to any person, except that the Evaluation Material (or portions thereof) may be\ndisclosed to those of your Representatives who need to know such information solely for the purpose of evaluating a possible Transaction with the\nCompany (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature of the Evaluation\nMaterial, will be provided with a copy of this Agreement and will agree to be bound by the terms hereof). You will make all reasonable, necessary\nand appropriate efforts to safeguard Evaluation\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 2\nMaterial from disclosure to anyone other than as permitted hereby. You agree to be responsible for any breach of this Agreement by your\nRepresentatives (including, without limitation, any actions or inactions by your Representatives that would constitute a breach if such\nRepresentatives were original signatories hereto).\nThe term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally known by the public\n(other than as a result of its disclosure by you or your Representatives) or (ii) was or becomes available to you on a non-confidential basis from a\nperson not otherwise bound by a confidentiality agreement with the Company or its Representatives or prohibited from transmitting the information\nto you by law, contractual obligation, fiduciary duly or otherwise. As used in this Agreement, the term “person” shall be broadly interpreted to\ninclude, without limitation, any corporation, company, joint venture, partnership, association or individual. You agree that the Evaluation Material is\nand shall remain the property of the Company or its subsidiaries and affiliates, as applicable, and that neither the Company nor any of its\nRepresentatives, subsidiaries or affiliates has granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by or on behalf of the Company.\nNon-Disclosure\nUnless otherwise required by applicable law in the reasonable written opinion of your legal counsel, but only after compliance with the paragraph\ntitled “Compelled Disclosure” below, neither you nor your Representatives will, without the Company’s prior written consent, disclose to any person\neither the fact that discussions or negotiations have taken or may take place concerning a possible Transaction, or any of the terms, conditions or\nother facts with respect to any such possible Transaction, including, without limitation, the status thereof, the existence and terms of this Agreement\nand the fact that the Evaluation Material has been made available to you. Without limiting the foregoing, you hereby expressly confirm and agree\nthat no public disclosure with respect to any discussions or negotiations concerning a possible Transaction is now required by reason of securities\nlaws or similar requirements related to general disclosure and in the event you determine that such disclosure is required in the future, no such\ndisclosures shall be made unless and until you have consulted, to the extent permitted by applicable law or cognizant authority, with the Company\nregarding the necessity and form of any such disclosure and otherwise complied with this paragraph.\nWithout limitation of the foregoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly,\nenter in any agreement, arrangement or understanding, or any discussions which might lead to an agreement, arrangement or understanding, with any\nperson regarding participation in a possible Transaction as a principal, coinvestor, an equity investor or any person other than a financial institution\nproviding or underwriting debt financing. For the avoidance of doubt, the term “Representatives” as applied to you shall not include any such\npotential principal, co-investor, equity investor or person other than a financial institution providing or underwriting debt financing.\nCompelled Disclosure\nIn the event that you are requested or required to disclose all or any part of the information contained in the Evaluation Material pursuant to the\nterms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory\nbody or\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 3\npursuant to a civil investigative demand or similar judicial process or otherwise, to the extent permitted by applicable law or cognizant authority, you\nwill (i) notify the Company in writing immediately of the existence, terms and circumstances surrounding such request or requirement, (ii) consult\nwith the Company on the advisability of taking legally available steps to resist or narrow such request or requirement, (iii) if disclosure of any such\ninformation is required, disclose only that portion of the information which, upon written advice of your legal counsel, you are legally required to\ndisclose and (iv) exercise your best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to such\ninformation. In any event, you will cooperate with the Company to obtain such a protective order or other assurance. Any expense you incur in\nconnection with the Company’s desire to narrow or limit the scope of the request or requirement shall be the responsibility of the Company.\nNon-Solicitation of Employees\nUntil the earlier of (i) the consummation by you of a Transaction, (ii) eighteen months after termination of discussions relating to a possible\nTransaction between you and the Company, and (iii) two years from the date of this Agreement, you will not, without the Company’s prior written\nconsent, directly or indirectly solicit for purposes of employment, offer to hire, entice away or offer to enter into any contract with, or hire any\nemployee of the Company: provided, however, that this paragraph shall not prohibit you or any of your Representatives from engagement in any\ngeneral advertising or general solicitation not targeted to the Company’s employees or hiring employees who respond to such a solicitation with no\nother action or by you or your Representatives in violation of this provision: and provided, further, that, following execution by you and the\nCompany of a definitive agreement providing for a Transaction between you and the Company, this paragraph shall not prohibit you or any of your\nRepresentatives from offering employees employment in anticipation of and conditioned upon the consummation of such Transaction.\nStandstill\nYou represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company or any securities or\ncontract rights (other than broadly based index funds) the terms or value of which are dependent on securities of the Company. For a period of two\nyears from the date of this Agreement, you will not, directly or indirectly, and you will cause any person or entity controlled by you not to, without\nthe prior written consent of the Board of Directors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire,\ndirectly or indirectly, any securities or property of the Company or any of its affiliates, or any securities or contract rights (other than broadly based\nindex funds) the terms or value of which are dependent on securities of the Company, (ii) propose to enter into, directly or indirectly, any merger,\nconsolidation, recapitalization, business combination, partnership, joint venture or other similar transaction involving the Company or any of its\naffiliates, (iii) make, or in any way participate in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect to the voting of any voting securities of the Company or any\nof its affiliates, (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any\nvoting securities of the Company or any of its affiliates, (v) negotiate, have any discussions or enter into any arrangements, understandings or\nagreements (whether written or oral) with, or advise, finance, assist or encourage, any other persons in connection with any of the foregoing, or,\nmake any investment in\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 4\nany other person that engages, or offers or proposes to engage, in any of the foregoing (it being understood that, without limiting the generality of the\nforegoing, you shall not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company), (vi) otherwise act,\nalone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vii) disclose any\nintention, plan or arrangement inconsistent with the foregoing or (viii) advise, assist or encourage any other persons in connection with any of the\nforegoing. Unless and until you have received the prior written invitation or approval of the Company to do so, you also agree during such period not\nto (x) request the Company (or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence), (y) take any action which might require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction or\n(z) communicate with the Company’s shareholders regarding the subject matter of this Agreement.\nProhibition on Trading\nIn addition, you hereby acknowledge that you are aware, and that you will advise your Representatives who receive any Evaluation Material, that the\nUnited States securities laws prohibit any person who has received from an issuer material, non public information from purchasing or selling\nsecurities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person (including, without limitation, any of your Representatives) is likely to purchase\nor sell such securities. You hereby agree that neither you nor your Representatives will use or communicate the Evaluation Material in violation of\nthese laws.\nReturn or Destruction of Documents\nIf you determine that you do not wish to proceed with a Transaction or your evaluation thereof, you will promptly advise the Company and Stone\nKey in writing of that decision. In that case, or in the event that (i) a Transaction is not consummated by you or (ii) at any time the Company so\nrequests, you will promptly (a) deliver to the Company all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives or (b) destroy all Evaluation Material in your\npossession or in the possession of any of your Representatives (such destruction to be certified by you in writing to the Company). Notwithstanding\nthe delivery or destruction of the Evaluation Material, you agree that you and your Representatives shall continue to be bound by your obligations\nunder this Agreement.\nNo Unauthorized Contact\nUnless otherwise agreed in writing by the Company, all (i) communications regarding any possible Transaction, (ii) requests for additional\ninformation or Evaluation Material, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures,\nwill be submitted or directed to Stone Key. You further agree not to contact any officers, directors or employees of the Company in connection with a\npossible Transaction without the prior written consent of the Company.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 5\nThis Agreement does not constitute or create any obligation of the Company or its Representatives to provide any Evaluation Material or other\ninformation to you, but defines the duties and obligations of you and your Representatives with respect to the Evaluation Material to the extent it\nmay be disclosed or made available. Under no circumstances will the Company or any of its Representatives be obligated to disclose or make\navailable any information, including, without limitation, any Evaluation Material, which the Company in its sole and absolute discretion determines\nnot to disclose. You understand and acknowledge that none of the Company, Stone Key nor any of their respective Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information provided to\nyou by or on behalf of the Company. None of the Company. Stone Key nor any of their respective Representatives shall have any liability to you or\nany other person (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material, other than as may\nbe set forth in any definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement.\nYou agree that the Company will not be under any legal obligation of any kind whatsoever with respect to any Transaction by virtue of (x) this\nAgreement or (y) any written or oral expression or communication with respect to any Transaction by any of the Company’s Representatives except,\nin the case of this Agreement, for the matters specifically agreed to herein. You further acknowledge and agree that (i) the Company shall be free to\nconduct the process for a Transaction as the Company in its sole discretion shall determine (including, without limitation, negotiating with any other\nperson and entering into a definitive agreement without prior notice to you or any other person); (ii) any of the procedures relating to a Transaction\nmay be changed at any time without notice to you or any other person; (iii) the Company shall have the right to reject or accept any potential\nproposal, offer or participant therein, for any or no reason whatsoever, in its sole discretion; and (iv) neither you nor any of your Representatives\ncurrently have any claim whatsoever against the Company, Stone Key or any of their respective Representatives arising out of or relating to a\nTransaction based on this Agreement or otherwise.\nActing as Principal\nYou represent and warrant that you are acting as a principal in any possible Transaction and are not represented by any broker or similar party.\nLegal Remedy\nYou acknowledge that money damages and remedies at law will be inadequate to protect the Company against any actual or threatened breach of this\nAgreement by you or by your Representatives and, without prejudice to any rights and remedies otherwise available to the Company, you agree to\nthe granting of specific performance, injunctive relief and other equitable remedies in the Company’s favor without proof of actual damages, and you\nfurther agree to waive, and to cause your Representatives to waive, any requirement for the securing or posting of any bond in connection with any\nsuch remedy. In the event of any breach of this Agreement by you or your Representatives, you agree to reimburse the Company promptly upon\ndemand for all out-of-pocket costs and expenses incurred by it in the enforcement of its rights hereunder (including, without limitation, reasonable\nfees and disbursements of counsel).\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 6\nGoverning Law\nThe validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New\nYork, without giving effect to conflicts of laws principles. You irrevocably (i) submit to the jurisdiction of any court of the State of New York or the\nUnited States District Court for the Southern District of New York for the purpose of any suit, action, or other proceeding arising out of this\nAgreement, or any of the agreements or transactions contemplated hereby (each a “Proceeding”) and agree that service of any process, summons,\nnotice or document delivered by hand or sent by U.S. registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court, (ii) agree that all claims in respect of any Proceeding may be heard and determined\nin any such court, (iii) irrevocably waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from\njurisdiction of any such court or from any legal process therein, (iv) irrevocably waive, to the fullest extent permitted by law, any right to trial by\njury in any Proceeding, and (v) agree not to commence any Proceeding other than in such court, and waive, to the fullest extent permitted by\napplicable law, any claim that any such Proceeding is brought in an inconvenient forum.\nNo Waiver\nNo failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power or privilege.\nSuccessors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. You may not assign this\nAgreement or any part thereof without the prior written consent of the Company, and any purported assignment without such consent shall be null\nand void.\nSeverability\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or\nunenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect to the fullest extent\npermitted by applicable law and (ii) the invalid or unenforceable term or provision shall be replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Company’s intention with respect to such invalid or unenforceable term or provision.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 7\nEntire Agreement\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements\nand understandings relating to the matters provided for herein. This Agreement may not be amended or modified in any manner nor may any of its\nprovisions be waived except by written amendment executed by the parties. A waiver, amendment or modification shall only be effective if (a) it is\nin writing and signed by the Company and you, (b) it specifically refers to this Agreement and (c) it specifically states that the Company and/or you,\nas the case may be, is waiving or amending its rights hereunder. Any such amendment, modification or waiver shall be effective only in the specific\ninstance and for the purpose for which it was given. This Agreement shall, except as otherwise specifically set forth herein, cease to be effective two\nyears after the date hereof.\nCounterparts\nFor the convenience of the parties hereto, any number of counterparts of this Agreement may be executed by the parties hereto, each of which shall\nbe an original instrument and all of which taken together shall constitute one and the same Agreement. Delivery of a signed counterpart of this\nAgreement by e-mail or facsimile transmission shall constitute valid and sufficient delivery thereof.\nThis Agreement is being delivered to you in duplicate. Please execute and return one copy of this letter agreement which will constitute your\nagreement with respect to the subject matter of this Agreement.\nVery truly yours.\nICx Technologies, Inc.\nBy: /s/ James Luby\nName: James Luby\nTitle: Secretary\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 8\nConfirmed and Agreed to as of\nthe date first written above:\nFLIR Systems, Inc.\nBy: /s/ William W. Davis\nName: William W. Davis\nTitle:  Senior Vice President, General Counsel &\nSecretary	EX-99.(D).(5) 17 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nMarch 17, 2010\nFLIR Systems, Inc.\n27700 SW Parkway Ave.\nWilsonville. OR 97070\nAttention: Mr. Craig Stoehr\nDirector Corporate Development and Investor Relations\nConfidentiality ty Agreemen\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (a "Transaction") involving ICx Technologies, Inc. or certain of its affiliates,\nsubsidiaries, assets and/or business divisions (collectively, the "Company"), you have requested information. In consideration of, and as a condition\nto, your being furnished with such information and any other Evaluation Material (as defined below), the Company hereby requests your agreement\nas set forth herein. As used in this letter agreement (this "Agreement"), the term "Evaluation Material" means all information regarding the\nCompany, its businesses, technology, products, prospects and plans, a Transaction or the fact that the Company may pursue a Transaction with you\nor other parties, the existence and terms of this Letter Agreement and other information furnished to you in connection with the Transaction by the\nCompany or any of its Representatives (as defined below), irrespective of form or medium of communication, whether prepared by the Company, its\nRepresentatives or otherwise and whether furnished before, on or after the date of this Agreement, together with any and all analyses, compilations,\nsummaries, forecasts, studies or other materials prepared by you or your Representatives that contain, are based on or otherwise incorporate, in\nwhole or part, such information. The term "Representatives" includes, without limitation, FLIR Systems, Inc.'s affiliates and its and their respective\ndirectors, officers, employees, advisors, agents, representatives, financial institutions providing or underwriting solely debt financing or "controlling\npersons" (within the meaning of the Securities Exchange Act of 1934, as amended (the "1934 Act")); provided, that, should you provide Evaluation\nMaterial to any such financial institution seeking to arrange debt financing, you shall promptly provide written notice to the Company as to the\nidentity of any such financial institution. The Company is being advised by Stone Key Partners LLC and the Stone Key Securities division of\nHudson Partners Securities LLC (together, "Stone Key").\nUse of Evaluation Materials\nYou and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating a possible Transaction with the Company\ninvolving\nyou\nor\nyour\naffiliates\nand\n(ii)\nwill\nkeep\nthe\nEvaluation\nMaterial\nstrictly\nconfidential\nand\n(except\nas\nrequired\nby\napplicable\nlaw,\nregulation\nor\nlegal process, and only after compliance with the paragraph titled "Compelled Disclosure" below) will not, without the Company's prior written\nconsent, disclose any information in the Evaluation Material to any person, except that the Evaluation Material (or portions thereof) may\nbe\ndisclosed to those of your Representatives who need to know such information solely for the purpose of evaluating a possible Transaction with the\nCompany (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature of the Evaluation\nMaterial, will be provided with a copy of this Agreement and will agree to be bound by the terms hereof). You will make all reasonable, necessary\nand appropriate efforts to safeguard Evaluation\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 2\nMaterial from disclosure to anyone other than as permitted hereby. You agree to be responsible for any breach of this Agreement by your\nRepresentatives (including, without limitation, any actions or inactions by your Representatives that would constitute a breach if such\nRepresentatives were original signatories hereto).\nThe term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally known by the public\n(other than as a result of its disclosure by you or your Representatives) or (ii) was or becomes available to you on a non-confidential basis from a\nperson not otherwise bound by a confidentiality agreement with the Company or its Representatives or prohibited from transmitting the information\nto you by law, contractual obligation, fiduciary duly or otherwise. As used in this Agreement, the term "person" shall be broadly interpreted to\ninclude, without limitation, any corporation, company, joint venture, partnership, association or individual. You agree that the Evaluation Material\nis\nand shall remain the property of the Company or its subsidiaries and affiliates, as applicable, and that neither the Company nor any of\nits\nRepresentatives, subsidiaries or affiliates has granted you any license, copyright, or similar right with respect to any of the Evaluation Material\nor\nany other information provided to you by or on behalf of the Company.\nNon-Disclosure\nUnless otherwise required by applicable law in the reasonable written opinion of your legal counsel, but only after compliance with the paragraph\ntitled "Compelled Disclosure" below, neither you nor your Representatives will, without the Company's prior written consent, disclose to any person\neither the fact that discussions or negotiations have taken or may take place concerning a possible Transaction, or any of the terms, conditions or\nother facts with respect to any such possible Transaction, including, without limitation, the status thereof, the existence and terms of this Agreement\nand the fact that the Evaluation Material has been made available to you. Without limiting the foregoing, you hereby expressly confirm and agree\nthat no public disclosure with respect to any discussions or negotiations concerning a possible Transaction is now required by reason of securities\nlaws or similar requirements related to general disclosure and in the event you determine that such disclosure is required in the future, no such\ndisclosures shall be made unless and until you have consulted, to the extent permitted by applicable law or cognizant authority, with the Company\nregarding the necessity and form of any such disclosure and otherwise complied with this paragraph.\nWithout limitation of the foregoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly,\nenter in any agreement, arrangement or understanding, or any discussions which might lead to an agreement, arrangement or understanding, with any\nperson regarding participation in a possible Transaction as a principal, coinvestor, an equity investor or any person other than a financial institution\nproviding or underwriting debt financing. For the avoidance of doubt, the term "Representatives" as applied to you shall not include any such\npotential principal, co-investor, equity investor or person other than a financial institution providing or underwriting debt financing.\nCompelled Disclosure\nIn the event that you are requested or required to disclose all or any part of the information contained in the Evaluation Material pursuant to the\nterms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory\nbody or\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 3\npursuant to a civil investigative demand or similar judicial process or otherwise, to the extent permitted by applicable law or cognizant authority, you\nwill\n(i)\nnotify\nthe Company in writing immediately of the existence, terms and circumstances surrounding such request or requirement, (ii) consult\nwith the Company on the advisability of taking legally available steps to resist or narrow such request or requirement, (iii) if disclosure of any such\ninformation is required, disclose only that portion of the information which, upon written advice of your legal counsel, you are legally required\nto\ndisclose and (iv) exercise your best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to such\ninformation. In any event, you will cooperate with the Company to obtain such a protective order or other assurance. Any expense you incur in\nconnection with the Company's desire to narrow or limit the scope of the request or requirement shall be the responsibility of the Company.\nNon-Solicitation of Employees\nUntil the earlier of (i) the consummation by you of a Transaction, (ii) eighteen months after termination of discussions relating to a possible\nTransaction between you and the Company, and (iii) two years from the date of this Agreement, you will not, without the Company's prior written\nconsent, directly or indirectly solicit for purposes of employment, offer to hire, entice away or offer to enter into any contract with, or hire any\nemployee of the Company: provided, however, that this paragraph shall not prohibit you or any of your Representatives from engagement in any\ngeneral advertising or general solicitation not targeted to the Company's employees or hiring employees who respond to such a solicitation with\nno\nother action or by you or your Representatives in violation of this provision: and provided, further, that, following execution by you and the\nCompany of a definitive agreement providing for a Transaction between you and the Company, this paragraph shall not prohibit you or any of your\nRepresentatives from offering employees employment in anticipation of and conditioned upon the consummation of such Transaction.\nStandstill\nYou represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company or any securities\nor\ncontract rights (other than broadly based index funds) the terms or value of which are dependent on securities of the Company. For a period of two\nyears from the date of this Agreement, you will not, directly or indirectly, and you will cause any person or entity controlled by you not to, without\nthe prior written consent of the Board of Directors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire,\ndirectly or indirectly, any securities or property of the Company or any of its affiliates, or any securities or contract rights (other than broadly based\nindex funds) the terms or value of which are dependent on securities of the Company, (ii) propose to enter into, directly or indirectly, any merger,\nconsolidation, recapitalization, business combination, partnership, joint venture or other similar transaction involving the Company or any of\nits\naffiliates, (iii) make, or in any way participate in any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect to the voting of any voting securities of the Company or\nany\nof its affiliates, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to\nany\nvoting\nsecurities\nof\nthe\nCompany\nor\nany\nof\nits\naffiliates,\n(v)\nnegotiate,\nhave\nany\ndiscussions\nor\nenter\ninto\nany\narrangements,\nunderstandings\nor\nagreements (whether written or oral) with, or advise, finance, assist or encourage, any other persons in connection with any of the foregoing,\nor,\nmake any investment in\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 4\nany other person that engages, or offers or proposes to engage, in any of the foregoing (it being understood that, without limiting the generality of the\nforegoing, you shall not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company), (vi) otherwise act,\nalone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vii) disclose any\nintention, plan or arrangement inconsistent with the foregoing or (viii) advise, assist or encourage any other persons in connection with any of the\nforegoing. Unless and until you have received the prior written invitation or approval of the Company to do so, you also agree during such period not\nto (x) request the Company (or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence), (y) take any action which might require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction or\n(z) communicate with the Company's shareholders regarding the subject matter of this Agreement.\nProhibition on Trading\nIn addition, you hereby acknowledge that you are aware, and that you will advise your Representatives who receive any Evaluation Material, that\nthe\nUnited States securities laws prohibit any person who has received from an issuer material, non public information from purchasing or selling\nsecurities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person (including, without limitation, any of your Representatives) is likely to purchase\nor sell such securities. You hereby agree that neither you nor your Representatives will use or communicate the Evaluation Material in violation of\nthese laws.\nReturn or Destruction of Documents\nIf you determine that you do not wish to proceed with a Transaction or your evaluation thereof, you will promptly advise the Company and Stone\nKey in writing of that decision. In that case, or in the event that (i) a Transaction is not consummated by you or (ii) at any time the Company so\nrequests, you will promptly (a) deliver to the Company all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives or (b) destroy all Evaluation Material in your\npossession or in the possession of any of your Representatives (such destruction to be certified by you in writing to the Company). Notwithstanding\nthe delivery or destruction of the Evaluation Material, you agree that you and your Representatives shall continue to be bound by your obligations\nunder this Agreement.\nNo Unauthorized Contact\nUnless otherwise agreed in writing by the Company, all (i) communications regarding any possible Transaction, (ii) requests for additional\ninformation or Evaluation Material, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures,\nwill be submitted or directed to Stone Key. You further agree not to contact any officers, directors or employees of the Company in connection with\na\npossible Transaction without the prior written consent of the Company.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 5\nNo Obligation, Representation or Warranty.\nThis Agreement does not constitute or create any obligation of the Company or its Representatives to provide any Evaluation Material or other\ninformation to you, but defines the duties and obligations of you and your Representatives with respect to the Evaluation Material to the extent it\nmay be disclosed or made available. Under no circumstances will the Company or any of its Representatives be obligated to disclose or make\navailable any information, including, without limitation, any Evaluation Material, which the Company in its sole and absolute discretion determines\nnot to disclose. You understand and acknowledge that none of the Company, Stone Key nor any of their respective Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information provided\nto\nyou by or on behalf of the Company. None of the Company. Stone Key nor any of their respective Representatives shall have any liability to you or\nany other person (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material, other than as may\nbe set forth in any definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement.\nYou agree that the Company will not be under any legal obligation of any kind whatsoever with respect to any Transaction by virtue of (x) this\nAgreement or (y) any written or oral expression or communication with respect to any Transaction by any of the Company's Representatives except,\nin the case of this Agreement, for the matters specifically agreed to herein. You further acknowledge and agree that (i) the Company shall be free\nto\nconduct the process for a Transaction as the Company in its sole discretion shall determine (including, without limitation, negotiating with any other\nperson and entering into a definitive agreement without prior notice to you or any other person); (ii) any of the procedures relating to a Transaction\nmay be changed at any time without notice to you or any other person; (iii) the Company shall have the right to reject or accept any potential\nproposal, offer or participant therein, for any or no reason whatsoever, in its sole discretion; and (iv) neither you nor any of your Representatives\ncurrently have any claim whatsoever against the Company, Stone Key or any of their respective Representatives arising out of or relating to a\nTransaction based on this Agreement or otherwise.\nActing as Principal\nYou represent and warrant that you are acting as a principal in any possible Transaction and are not represented by any broker or similar party.\nLegal Remedy\nYou acknowledge that money damages and remedies at law will be inadequate to protect the Company against any actual or threatened breach of this\nAgreement by you or by your Representatives and, without prejudice to any rights and remedies otherwise available to the Company, you agree to\nthe granting of specific performance, injunctive relief and other equitable remedies in the Company's favor without proof of actual damages, and you\nfurther agree to waive, and to cause your Representatives to waive, any requirement for the securing or posting of any bond in connection with any\nsuch remedy. In the event of any breach of this Agreement by you or your Representatives, you agree to reimburse the Company promptly upon\ndemand for all out-of-pocket costs and expenses incurred by it in the enforcement of its rights hereunder (including, without limitation, reasonable\nfees and disbursements of counsel).\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 6\nGoverning Law\nThe validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New\nYork, without giving effect to conflicts of laws principles. You irrevocably (i) submit to the jurisdiction of any court of the State of New York or the\nUnited States District Court for the Southern District of New York for the purpose of any suit, action, or other proceeding arising out of this\nAgreement, or any of the agreements or transactions contemplated hereby (each a "Proceeding") and agree that service of any process, summons,\nnotice or document delivered by hand or sent by U.S. registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court, (ii) agree that all claims in respect of any Proceeding may be heard and determined\nin any such court, (iii) irrevocably waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from\njurisdiction of any such court or from any legal process therein, (iv) irrevocably waive, to the fullest extent permitted by law, any right to trial by\njury in any Proceeding, and (v) agree not to commence any Proceeding other than in such court, and waive, to the fullest extent permitted by\napplicable law, any claim that any such Proceeding is brought in an inconvenient forum.\nNo Waiver\nNo failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall\nany\nsingle or partial exercise thereof preclude any other or further exercise of any right, power or privilege.\nSuccessors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. You may not assign this\nAgreement or any part thereof without the prior written consent of the Company, and any purported assignment without such consent shall be null\nand void.\nSeverability.\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid\nor\nunenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect to the fullest extent\npermitted by applicable law and (ii) the invalid or unenforceable term or provision shall be replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Company's intention with respect to such invalid or unenforceable term or provision.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 7\nEntire Agreement\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements\nand understandings relating to the matters provided for herein. This Agreement may not be amended or modified in any manner nor may any of its\nprovisions be waived except by written amendment executed by the parties. A waiver, amendment or modification shall only be effective if (a) it is\nin writing and signed by the Company and you, (b) it specifically refers to this Agreement and (c) it specifically states that the Company and/or\nyou,\nas the case may be, is waiving or amending its rights hereunder. Any such amendment, modification or waiver shall be effective only in the specific\ninstance and for the purpose for which it was given. This Agreement shall, except as otherwise specifically set forth herein, cease to be effective two\nyears after the date hereof.\nCounterparts\nFor the convenience of the parties hereto, any number of counterparts of this Agreement may be executed by the parties hereto, each of which shall\nbe an original instrument and all of which taken together shall constitute one and the same Agreement. Delivery of a signed counterpart of this\nAgreement by e-mail or facsimile transmission shall constitute valid and sufficient delivery thereof.\nThis Agreement is being delivered to you in duplicate. Please execute and return one copy of this letter agreement which will constitute your\nagreement with respect to the subject matter of this Agreement.\nVery truly yours.\nICx Technologies, Inc.\nBy: /s/ James Luby\nName: James Luby\nTitle: Secretary\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 8\nConfirmed and Agreed to as of\nthe date first written above:\nFLIR Systems, Inc.\nBy: /s/ William W. Davis\nName: William W. Davis\nTitle: Senior Vice President, General Counsel &\nSecretary	EX-99.(D).(5) 17 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nMarch 17, 2010\nFLIR Systems, Inc.\n27700 SW Parkway Ave.\nWilsonville. OR 97070\nAttention: Mr. Craig Stoehr\nDirector - Corporate Development and Investor Relations\nConfidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (a “Transaction”) involving ICx Technologies, Inc. or certain of its affiliates,\nsubsidiaries, assets and/or business divisions (collectively, the “Company”), you have requested information. In consideration of, and as a condition\nto, your being furnished with such information and any other Evaluation Material (as defined below), the Company hereby requests your agreement\nas set forth herein. As used in this letter agreement (this “Agreement”), the term “Evaluation Material” means all information regarding the\nCompany, its businesses, technology, products, prospects and plans, a Transaction or the fact that the Company may pursue a Transaction with you\nor other parties, the existence and terms of this Letter Agreement and other information furnished to you in connection with the Transaction by the\nCompany or any of its Representatives (as defined below), irrespective of form or medium of communication, whether prepared by the Company, its\nRepresentatives or otherwise and whether furnished before, on or after the date of this Agreement, together with any and all analyses, compilations,\nsummaries, forecasts, studies or other materials prepared by you or your Representatives that contain, are based on or otherwise incorporate, in\nwhole or part, such information. The term “Representatives” includes, without limitation, FLIR Systems, Inc.’s affiliates and its and their respective\ndirectors, officers, employees, advisors, agents, representatives, financial institutions providing or underwriting solely debt financing or “controlling\npersons” (within the meaning of the Securities Exchange Act of 1934, as amended (the “1934 Act”)); provided, that, should you provide Evaluation\nMaterial to any such financial institution seeking to arrange debt financing, you shall promptly provide written notice to the Company as to the\nidentity of any such financial institution. The Company is being advised by Stone Key Partners LLC and the Stone Key Securities division of\nHudson Partners Securities LLC (together, “Stone Key”).\nUse of Evaluation Materials\nYou and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating a possible Transaction with the Company\ninvolving you or your affiliates and (ii) will keep the Evaluation Material strictly confidential and (except as required by applicable law, regulation or\nlegal process, and only after compliance with the paragraph titled “Compelled Disclosure” below) will not, without the Company’s prior written\nconsent, disclose any information in the Evaluation Material to any person, except that the Evaluation Material (or portions thereof) may be\ndisclosed to those of your Representatives who need to know such information solely for the purpose of evaluating a possible Transaction with the\nCompany (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature of the Evaluation\nMaterial, will be provided with a copy of this Agreement and will agree to be bound by the terms hereof). You will make all reasonable, necessary\nand appropriate efforts to safeguard Evaluation\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 2\nMaterial from disclosure to anyone other than as permitted hereby. You agree to be responsible for any breach of this Agreement by your\nRepresentatives (including, without limitation, any actions or inactions by your Representatives that would constitute a breach if such\nRepresentatives were original signatories hereto).\nThe term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally known by the public\n(other than as a result of its disclosure by you or your Representatives) or (ii) was or becomes available to you on a non-confidential basis from a\nperson not otherwise bound by a confidentiality agreement with the Company or its Representatives or prohibited from transmitting the information\nto you by law, contractual obligation, fiduciary duly or otherwise. As used in this Agreement, the term “person” shall be broadly interpreted to\ninclude, without limitation, any corporation, company, joint venture, partnership, association or individual. You agree that the Evaluation Material is\nand shall remain the property of the Company or its subsidiaries and affiliates, as applicable, and that neither the Company nor any of its\nRepresentatives, subsidiaries or affiliates has granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by or on behalf of the Company.\nNon-Disclosure\nUnless otherwise required by applicable law in the reasonable written opinion of your legal counsel, but only after compliance with the paragraph\ntitled “Compelled Disclosure” below, neither you nor your Representatives will, without the Company’s prior written consent, disclose to any person\neither the fact that discussions or negotiations have taken or may take place concerning a possible Transaction, or any of the terms, conditions or\nother facts with respect to any such possible Transaction, including, without limitation, the status thereof, the existence and terms of this Agreement\nand the fact that the Evaluation Material has been made available to you. Without limiting the foregoing, you hereby expressly confirm and agree\nthat no public disclosure with respect to any discussions or negotiations concerning a possible Transaction is now required by reason of securities\nlaws or similar requirements related to general disclosure and in the event you determine that such disclosure is required in the future, no such\ndisclosures shall be made unless and until you have consulted, to the extent permitted by applicable law or cognizant authority, with the Company\nregarding the necessity and form of any such disclosure and otherwise complied with this paragraph.\nWithout limitation of the foregoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly,\nenter in any agreement, arrangement or understanding, or any discussions which might lead to an agreement, arrangement or understanding, with any\nperson regarding participation in a possible Transaction as a principal, coinvestor, an equity investor or any person other than a financial institution\nproviding or underwriting debt financing. For the avoidance of doubt, the term “Representatives” as applied to you shall not include any such\npotential principal, co-investor, equity investor or person other than a financial institution providing or underwriting debt financing.\nCompelled Disclosure\nIn the event that you are requested or required to disclose all or any part of the information contained in the Evaluation Material pursuant to the\nterms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory\nbody or\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 3\npursuant to a civil investigative demand or similar judicial process or otherwise, to the extent permitted by applicable law or cognizant authority, you\nwill (i) notify the Company in writing immediately of the existence, terms and circumstances surrounding such request or requirement, (ii) consult\nwith the Company on the advisability of taking legally available steps to resist or narrow such request or requirement, (iii) if disclosure of any such\ninformation is required, disclose only that portion of the information which, upon written advice of your legal counsel, you are legally required to\ndisclose and (iv) exercise your best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to such\ninformation. In any event, you will cooperate with the Company to obtain such a protective order or other assurance. Any expense you incur in\nconnection with the Company’s desire to narrow or limit the scope of the request or requirement shall be the responsibility of the Company.\nNon-Solicitation of Employees\nUntil the earlier of (i) the consummation by you of a Transaction, (ii) eighteen months after termination of discussions relating to a possible\nTransaction between you and the Company, and (iii) two years from the date of this Agreement, you will not, without the Company’s prior written\nconsent, directly or indirectly solicit for purposes of employment, offer to hire, entice away or offer to enter into any contract with, or hire any\nemployee of the Company: provided, however, that this paragraph shall not prohibit you or any of your Representatives from engagement in any\ngeneral advertising or general solicitation not targeted to the Company’s employees or hiring employees who respond to such a solicitation with no\nother action or by you or your Representatives in violation of this provision: and provided, further, that, following execution by you and the\nCompany of a definitive agreement providing for a Transaction between you and the Company, this paragraph shall not prohibit you or any of your\nRepresentatives from offering employees employment in anticipation of and conditioned upon the consummation of such Transaction.\nStandstill\nYou represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company or any securities or\ncontract rights (other than broadly based index funds) the terms or value of which are dependent on securities of the Company. For a period of two\nyears from the date of this Agreement, you will not, directly or indirectly, and you will cause any person or entity controlled by you not to, without\nthe prior written consent of the Board of Directors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire,\ndirectly or indirectly, any securities or property of the Company or any of its affiliates, or any securities or contract rights (other than broadly based\nindex funds) the terms or value of which are dependent on securities of the Company, (ii) propose to enter into, directly or indirectly, any merger,\nconsolidation, recapitalization, business combination, partnership, joint venture or other similar transaction involving the Company or any of its\naffiliates, (iii) make, or in any way participate in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect to the voting of any voting securities of the Company or any\nof its affiliates, (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any\nvoting securities of the Company or any of its affiliates, (v) negotiate, have any discussions or enter into any arrangements, understandings or\nagreements (whether written or oral) with, or advise, finance, assist or encourage, any other persons in connection with any of the foregoing, or,\nmake any investment in\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 4\nany other person that engages, or offers or proposes to engage, in any of the foregoing (it being understood that, without limiting the generality of the\nforegoing, you shall not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company), (vi) otherwise act,\nalone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vii) disclose any\nintention, plan or arrangement inconsistent with the foregoing or (viii) advise, assist or encourage any other persons in connection with any of the\nforegoing. Unless and until you have received the prior written invitation or approval of the Company to do so, you also agree during such period not\nto (x) request the Company (or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence), (y) take any action which might require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction or\n(z) communicate with the Company’s shareholders regarding the subject matter of this Agreement.\nProhibition on Trading\nIn addition, you hereby acknowledge that you are aware, and that you will advise your Representatives who receive any Evaluation Material, that the\nUnited States securities laws prohibit any person who has received from an issuer material, non public information from purchasing or selling\nsecurities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person (including, without limitation, any of your Representatives) is likely to purchase\nor sell such securities. You hereby agree that neither you nor your Representatives will use or communicate the Evaluation Material in violation of\nthese laws.\nReturn or Destruction of Documents\nIf you determine that you do not wish to proceed with a Transaction or your evaluation thereof, you will promptly advise the Company and Stone\nKey in writing of that decision. In that case, or in the event that (i) a Transaction is not consummated by you or (ii) at any time the Company so\nrequests, you will promptly (a) deliver to the Company all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives or (b) destroy all Evaluation Material in your\npossession or in the possession of any of your Representatives (such destruction to be certified by you in writing to the Company). Notwithstanding\nthe delivery or destruction of the Evaluation Material, you agree that you and your Representatives shall continue to be bound by your obligations\nunder this Agreement.\nNo Unauthorized Contact\nUnless otherwise agreed in writing by the Company, all (i) communications regarding any possible Transaction, (ii) requests for additional\ninformation or Evaluation Material, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures,\nwill be submitted or directed to Stone Key. You further agree not to contact any officers, directors or employees of the Company in connection with a\npossible Transaction without the prior written consent of the Company.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 5\nNo Obligation, Representation or Warranty\nThis Agreement does not constitute or create any obligation of the Company or its Representatives to provide any Evaluation Material or other\ninformation to you, but defines the duties and obligations of you and your Representatives with respect to the Evaluation Material to the extent it\nmay be disclosed or made available. Under no circumstances will the Company or any of its Representatives be obligated to disclose or make\navailable any information, including, without limitation, any Evaluation Material, which the Company in its sole and absolute discretion determines\nnot to disclose. You understand and acknowledge that none of the Company, Stone Key nor any of their respective Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information provided to\nyou by or on behalf of the Company. None of the Company. Stone Key nor any of their respective Representatives shall have any liability to you or\nany other person (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material, other than as may\nbe set forth in any definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement.\nYou agree that the Company will not be under any legal obligation of any kind whatsoever with respect to any Transaction by virtue of (x) this\nAgreement or (y) any written or oral expression or communication with respect to any Transaction by any of the Company’s Representatives except,\nin the case of this Agreement, for the matters specifically agreed to herein. You further acknowledge and agree that (i) the Company shall be free to\nconduct the process for a Transaction as the Company in its sole discretion shall determine (including, without limitation, negotiating with any other\nperson and entering into a definitive agreement without prior notice to you or any other person); (ii) any of the procedures relating to a Transaction\nmay be changed at any time without notice to you or any other person; (iii) the Company shall have the right to reject or accept any potential\nproposal, offer or participant therein, for any or no reason whatsoever, in its sole discretion; and (iv) neither you nor any of your Representatives\ncurrently have any claim whatsoever against the Company, Stone Key or any of their respective Representatives arising out of or relating to a\nTransaction based on this Agreement or otherwise.\nActing as Principal\nYou represent and warrant that you are acting as a principal in any possible Transaction and are not represented by any broker or similar party.\nLegal Remedy\nYou acknowledge that money damages and remedies at law will be inadequate to protect the Company against any actual or threatened breach of this\nAgreement by you or by your Representatives and, without prejudice to any rights and remedies otherwise available to the Company, you agree to\nthe granting of specific performance, injunctive relief and other equitable remedies in the Company’s favor without proof of actual damages, and you\nfurther agree to waive, and to cause your Representatives to waive, any requirement for the securing or posting of any bond in connection with any\nsuch remedy. In the event of any breach of this Agreement by you or your Representatives, you agree to reimburse the Company promptly upon\ndemand for all out-of-pocket costs and expenses incurred by it in the enforcement of its rights hereunder (including, without limitation, reasonable\nfees and disbursements of counsel).\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 6\nGoverning Law\nThe validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New\nYork, without giving effect to conflicts of laws principles. You irrevocably (i) submit to the jurisdiction of any court of the State of New York or the\nUnited States District Court for the Southern District of New York for the purpose of any suit, action, or other proceeding arising out of this\nAgreement, or any of the agreements or transactions contemplated hereby (each a “Proceeding”) and agree that service of any process, summons,\nnotice or document delivered by hand or sent by U.S. registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court, (ii) agree that all claims in respect of any Proceeding may be heard and determined\nin any such court, (iii) irrevocably waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from\njurisdiction of any such court or from any legal process therein, (iv) irrevocably waive, to the fullest extent permitted by law, any right to trial by\njury in any Proceeding, and (v) agree not to commence any Proceeding other than in such court, and waive, to the fullest extent permitted by\napplicable law, any claim that any such Proceeding is brought in an inconvenient forum.\nNo Waiver\nNo failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power or privilege.\nSuccessors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. You may not assign this\nAgreement or any part thereof without the prior written consent of the Company, and any purported assignment without such consent shall be null\nand void.\nSeverability\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or\nunenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect to the fullest extent\npermitted by applicable law and (ii) the invalid or unenforceable term or provision shall be replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Company’s intention with respect to such invalid or unenforceable term or provision.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 7\nEntire Agreement\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements\nand understandings relating to the matters provided for herein. This Agreement may not be amended or modified in any manner nor may any of its\nprovisions be waived except by written amendment executed by the parties. A waiver, amendment or modification shall only be effective if (a) it is\nin writing and signed by the Company and you, (b) it specifically refers to this Agreement and (c) it specifically states that the Company and/or you,\nas the case may be, is waiving or amending its rights hereunder. Any such amendment, modification or waiver shall be effective only in the specific\ninstance and for the purpose for which it was given. This Agreement shall, except as otherwise specifically set forth herein, cease to be effective two\nyears after the date hereof.\nCounterparts\nFor the convenience of the parties hereto, any number of counterparts of this Agreement may be executed by the parties hereto, each of which shall\nbe an original instrument and all of which taken together shall constitute one and the same Agreement. Delivery of a signed counterpart of this\nAgreement by e-mail or facsimile transmission shall constitute valid and sufficient delivery thereof.\nThis Agreement is being delivered to you in duplicate. Please execute and return one copy of this letter agreement which will constitute your\nagreement with respect to the subject matter of this Agreement.\nVery truly yours.\nICx Technologies, Inc.\nBy: /s/ James Luby\nName: James Luby\nTitle: Secretary\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 8\nConfirmed and Agreed to as of\nthe date first written above:\nFLIR Systems, Inc.\nBy: /s/ William W. Davis\nName: William W. Davis\nTitle: Senior Vice President, General Counsel &\nSecretary
4190435db84ff3f203d1348a588786cb.pdf	effective_date jurisdiction party	EX-10 .3 4 a18-8439_1ex10d3.htm EX-10.3\nExhibit 10.3\nEMPLOYMENT NON-COMPETE , NON -SOLICIT AND CONFIDENTIALITY AGREEMENT\nThis EMPLOYMENT NON-COMPETE, NON -SOLICIT AND CONFIDENTIALITY AGREEMENT (“Agreement”) is entered into between Citi Trends, Inc. , including its subsidiaries, affiliates, divisions, successors,\nand related entities (“Company”), and Stuart Clifford (“Employee”), effective as of the date signed by Employee below.\nFor and in consideration of the mutual covenants and agreements contained herein, including, but not limited to, Company agreeing to employ and/or continuing to employ Employee, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1.\nEmployment; Scope of Services. Company shall employ and/or continue to employ Employee, and Employee shall be\nemployed and/or continue to be employed by Company, as Senior Vice President & Chief Financial Officer. Employee shall use\nhis/her best efforts and shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and\nresponsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as assigned\nby the Board of Directors. Employee shall comply with Company’s policies and procedures, shall conduct him/herself as an ethical\nbusiness professional, and shall comply with federal, state and local laws.\n2.\nAt-Will Employment. Nothing in this Agreement alters the at-will employment relationship between Employee and\nCompany or limits Company’s right to alter or modify Employee’s job title or job duties and responsibilities any time at Company’s\ndiscretion. Employment with Company is “at-will” which means that either Employee or Company may terminate the employment\nrelationship at any time, with or without notice, with or without cause. The date of Employee’s cessation of employment for any\nreason is the “Separation Date.”\n3.\nConfidentiality.\n(a)\nEmployee acknowledges and agrees that: (1) the retail sale of value-priced/off-price family apparel is an extremely\ncompetitive industry; (2) Company has an ongoing strategy for expansion of its business in the United States; (3) Company’s major\ncompetitors operate throughout the United States and some internationally; and (4) because of Employee’s position as Senior Vice\nPresident & Chief Financial Officer, he/she will have access to, knowledge of, and be entrusted with, highly sensitive and\ncompetitive Confidential Information and Trade Secrets (as defined in subsection (b) below) of Company, including without\nlimitation information regarding sales margins, purchasing and pricing strategies, marketing strategies, vendors and suppliers, plans\nfor expansion and placement of stores, and also specific information about Company’s districts and stores, such as staffing, budgets,\nprofits and the financial success of individual districts and stores, which Company has developed and will continue to develop and\nthe disclosure or use of which would cause Company great and irreparable harm.\n(b)\nAs used herein, “Confidential Information” means and includes any and all Company data and information in\nany form whatsoever (tangible or intangible) which: (1) relates to the business of Company, irrespective of whether the data or\ninformation constitutes a “trade\nsecret” (as defined below); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee’s relationship with Company; (3) has value to Company; and (4) is not generally known to\nCompany’s competitors. “Confidential Information” includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data and statements,\nfinancial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and confidential or\nproprietary information of such employees, vendors and suppliers. “ Trade Secret” means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under applicable law.\nEmployee acknowledges and agrees that all Confidential Information and Trade Secrets are and remain the sole and exclusive property of Company.\n(c)\nEmployee agrees that he/she shall hold all Confidential Information and Trade Secrets in strictest confidence, and\nthat he/she shall protect such Confidential Information and Trade Secrets from disclosure by or to others. Employee further agrees\nthat he/she shall not at any time (except as authorized by Company in connection with Employee’s duties and responsibilities as an\nemployee): (1) disclose, publish, transfer, or communicate Confidential Information or Trade Secrets to any person or entity, other\nthan authorized Company personnel; (2) use or reproduce Confidential Information or Trade Secrets for personal benefit or for any\npurpose or reason other than furthering the legitimate business interest of Company within the scope of Employee’s duties with\nCompany; or (3) remove or transfer any Confidential Information or Trade Secrets from Company’s premises or systems (by any\nmethod or means) except for use in Company’s business and consistent with Employee’s duties with the Company. The foregoing\ncovenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to\nCompany.\n(d)\nEmployee acknowledges that Company has provided or will provide Employee with Company property, including\nwithout limitation, employee handbooks, policy manuals, price lists, financial reports, and vendor and supplier information, among\nother items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all\nproperty belonging to Company, including without limitation, all Confidential Information, Trade Secrets, and any property related to\nCompany, whether in electronic or other format, as well as any copies thereof, then in Employee’s custody, control, or possession.\nUpon the Separation Date, Employee shall provide Company with a declaration certifying that all Confidential Information and any\nother Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such\nitems to any third party, and that Employee has otherwise complied with the terms of Section 3 of this Agreement.\n(e)\nEmployee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure\nof a trade secret (as defined in section 1839 of title 18, United States Code) that (A) is made (i) in confidence to a federal, state, or\nlocal government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a\nsuspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. If Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee\nmay disclose the trade secret to the attorney of Employee and use the trade secret information in the court\n2\nproceeding if Employee (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except as permitted by court order.\n4.\nCovenant Not to Compete. Employee acknowledges and agrees that Company has invested a great deal of time and money\nin developing relationships with its employees, customers, and “Merchandise Vendors” (as defined below). Employee further\nacknowledges and agrees that in rendering services to Company, Employee has been, will be and will continue to be exposed to and\nlearn much information about Company’s business, including valuable Confidential Information and Trade Secrets, the Company’s\nemployees, and the Company’s “Merchandise Vendors,” to which Employee would not have access if not for Employee’s\nemployment with Company and which it would be unfair to disclose to others, or to use to Company’s disadvantage.\nEmployee acknowledges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Company’s legitimate business interests in its Trade Secrets, valuable Confidential Information and relationships\nand goodwill with its employees, customers, and “Merchandising Vendors.” Employee further acknowledges that Employee’s skills, education and training qualify Employee to work and obtain employment which does not violate this\nAgreement and that the restrictions in this Agreement have been crafted as narrowly as reasonably possible to protect Company’s legitimate business interests in its Trade Secrets, valuable Confidential Information and relationships and\ngoodwill with its employees, customers, and “Merchandising Vendors.”\nIn light of the foregoing, Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way competes with any aspect of\nCompany’s business or that otherwise conflicts with Company’s interests. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not, within any geographic area\nin which Company does business at any time during Employee’s employment with Company: (a) become employed by or work for a “Competitor” (as defined below) in any position or capacity involving duties and/or responsibilities\nwhich are the same as or substantially similar to any of the duties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to any of\nthe services which Employee performed or provided for the Company, for or on behalf of any Competitor. For purposes of this Section 4, the term “Competitor” shall mean only the following businesses, commonly known as: Cato, TJX\n(including without limitation TJMAXX and Marshalls), Burlington Stores, Gabe’s/Rugged Wearhouse, and Ross Stores.\n5.\nCovenant Not to Solicit. During Employee’s employment with Company, and for a period of eighteen (18) months\nfollowing the Separation Date, and regardless of the reason for separation, Employee agrees not to solicit any “Merchandise\nVendors” (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any “Competitor” (as\ndefined in Section 4 of this Agreement). As used herein, “Merchandise Vendors” means and includes any person or entity who/that\nhas been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding\nthe Separation Date or to whom/which Company is actively soliciting for the provision of merchandise and/or\n3\ninventory, and with whom/which Employee had “material contact.” For purposes of this agreement, “material contact” means contact between Employee and an existing or prospective Merchandise Vendor: (a) with whom Employee\ndealt on behalf of Company within two years prior to the date of Employee’s termination; (b) whose dealings with Company were coordinated or supervised by Employee within two years prior to the date of Employee’s termination;\n(c) about whom Employee obtained Confidential Information in the ordinary course of business as a result of Employee’s association with Company within two years prior to the date of Employee’s termination; or, (d) who provides\nmerchandise and/or inventory to Company, the provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee’s termination.\nEmployee specifically acknowledges and agrees that, as Senior Vice President & Chief Financial Officer, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins,\ninvolvement in establishing and maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors.\n6.\nCovenant Not to Recruit Personnel. During Employee’s employment with Company, and for a period of two (2) years\nfollowing the Separation Date, and regardless of the reason for separation, Employee will not: (a) recruit or solicit to hire or assist\nothers in recruiting or soliciting to hire, any employee or independent contractor of Company; or (b) cause or assist others in causing\nany employee or independent contractor of Company to terminate his/her relationship with Company.\n7.\nSeverability. If any provision of this Agreement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the\nremaining provisions, and any partially enforceable provisions to the extent enforceable, shall be binding and remain in full force and\neffect. Further, each particular prohibition or restriction set forth in any Section of this Agreement shall be deemed a severable unit,\nand if any court of competent jurisdiction determines that any portion of such prohibition or restriction is against the policy of the law\nin any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be\nunconscionable, the court shall enforce so much of such restraint as is determined to be reasonably necessary to protect the legitimate\ninterests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine\nthat any of the covenants contained herein are overly-broad or otherwise unenforceable, the court may “blue-pencil,” modify, and/or\nreform any such covenant (in whole or in part) so as to cure the over-breadth or to otherwise render the covenant enforceable.\n8.\nSurvival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies\nrelating thereto, shall survive the termination of this Agreement for any reason.\n9.\nBinding Effect. The covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be\nenforceable by Company and its successors, assigns, and successors-in-interest, including, without limitation, any corporation,\npartnership, or other entity with which Company may be merged or by which it may be acquired. Employee may not assign\nEmployee’s rights or obligations under this Agreement to any other party.\n4\n10.\nGoverning Law. All matters affecting this Agreement, including the validity thereof, are to be subject to, and interpreted\nand construed in accordance with, the laws of the State of Georgia applicable to contracts executed in and to be performed in that\nState.\n11.\nNo Interference with Rights. Employee understands, agrees and acknowledges that nothing contained in this Agreement\nwill prevent Employee from filing a charge or complaint with, reporting possible violations of any law or regulation, making\ndisclosures to, and/or participating in any investigation or proceeding conducted by, the National Labor Relations Board, Equal\nEmployment Opportunity Commission, the Securities and Exchange Commission, and/or any governmental authority charged with\nthe enforcement of any laws.\n12.\nAcknowledgment of Reasonableness/Remedies/Enforcement.\n(a)\nEmployee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this\nAgreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement would result in irreparable injury and\npermanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are\ncritical to the success of Company’s business, and do not cause undue hardship on Employee.\n(b)\nEmployee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be\ndifficult and that money damages alone would be an inadequate remedy for the injuries and damages which would be suffered by\nCompany from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may\nhave under this Agreement, at law, or otherwise) to immediate injunctive and other equitable relief to prevent or curtail any such\nbreach or threatened breach by Employee. Employee and Company waive any requirement that a bond or any other security be\nposted. Nothing in this Agreement shall prohibit Company from seeking or recovering any legal or monetary damages to which it\nmay be entitled if Employee breaches any provision in this Agreement.\n(c)\nIn the event Employee breaches this Agreement, Employee shall be liable to Company for all costs of\nenforcement, including attorneys’ fees and court costs, in addition to all other damages and redress available to Company in equity or\nin law.\n13.\nMiscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior\ncontracts, agreements, or understandings between the parties which may have been entered into by Company and Employee relating\nto the subject matter hereof (including, without limitation, the Prior Confidentiality Agreement), except for any severance agreements\nor certain restricted stock award and stock option agreements, which are to remain in full force and effect. This Agreement may not\nbe amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of\neither party to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such\nprovision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement\nshall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek\nequitable relief in addition to money damages.\n5\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year set forth below.\nCiti Trends, Inc.\n/s/ Stuart Clifford\nEmployee Signature\nBy:\n/s/ Bruce D. Smith\nDate:\n3/15/2018\nBruce D. Smith\nChief Executive Officer\nEmployee Residence Address:\nDate:\n3/15/2018\n7	EX-10.3 4 a18-8439_1eX10d3.htm EX-10.3\nExhibit 10.3\nEMPLOYMENT NON-COMPETE, NON-SOLICIT AND CONFIDENTIALITY AGREEMENT\n \nThis EMPLOY MENT NON-COMPETE, NON-SOLICIT AND CONFIDENTIALITY AG REEMENT ("A ggement”) is entered into between Citi Trends, Inc., including its subsidiaries, affiliates, divisions, successors,\nand related entities ("Company"), and Stuart Clifford ("Employee"), effective as of the date signed by Employee below.\nFor and in consideration of the mutual covenants and agreements contained herein, including, but not limited to, Company agreeing to employ and/or continuing to employ Employee, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1. Employment; Scope of Services. Company shall employ and/or continue to employ Employee, and Employee shall be\nemployed and/or continue to be employed by Company, as Senior Vice President & Chief Financial Officer. Employee shall use\nhis/her best efforts and shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and\nresponsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as assigned\nby the Board of Directors. Employee shall comply with Company' 5 policies and procedures, shall conduct him/herself as an ethical\nbusiness professional, and shall comply with federal, state and local laws.\n2. At—Will Employment. Nothing in this Agreement alters the at-will employment relationship between Employee and\nCompany or limits Company's right to alter or modify Employee’s job title or job duties and responsibilities any time at Company's\ndiscretion. Employment with Company is ”at-will” which means that either Employee or Company may terminate the employment\nrelationship at any time, with or without notice, with or without cause. The date of Employee' 5 cessation of employment for any\nreason is the ”Separation Date. ”\n3. Confidentiality.\n(a) Employee acknowledges and agrees that: (1) the retail sale of valuepriced/off—price family apparel is an extremely\ncompetitive industry; (2) Company has an ongoing strategy for expansion of its business in the United States; (3) Company’s major\ncompetitors operate throughout the United States and some internationally; and (4) because of Employee' 5 position as Senior Vice\nPresident & Chief Financial Officer, he/she will have access to, knowledge of, and be entrusted with, highly sensitive and\ncompetitive Confidential Information and Trade Secrets (as defined in subsection (b) below) of Company, including without\nlimitation information regarding sales margins, purchasing and pricing strategies, marketing strategies, vendors and suppliers, plans\nfor expansion and placement of stores, and also specific information about Company' 5 districts and stores, such as staffing, budgets,\nprofits and the financial success of individual districts and stores, which Company has developed and will continue to develop and\nthe disclosure or use of which would cause Company great and irreparable harm.\n(b) As used herein, ”Confidential Information” means and includes any and all Company data and information in\nany form whatsoever (tangible or intangible) which: (1) relates to the business of Company, irrespective of whether the data or\ninformation constitutes a ”trade\n \nsecret" (as defined below); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee' 5 relationship with Company; (3) has value to Company; and (4) is not generally known to\nCompany's competitors. "Confidential Information" includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data and statements,\nfinancial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and confidential or\nproprietary information of such employees, vendors and suppliers. "Trade Secret" means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under applicable law.\nEmployee acknowledges and agrees that all Confidential Information and Trade Secrets are and remain the sole and exclusive property of Company.\n(c) Employee agrees that he/she shall hold all Confidential Information and Trade Secrets in strictest confidence, and\nthat he/she shall protect such Confidential Information and Trade Secrets from disclosure by or to others. Employee further agrees\nthat he/she shall not at any time (except as authorized by Company in connection with Employee' 5 duties and responsibilities as an\nemployee): (1) disclose, publish, transfer, or communicate Confidential Information or Trade Secrets to any person or entity, other\nthan authorized Company personnel; (2) use or reproduce Confidential Information or Trade Secrets for personal benefit or for any\npurpose or reason other than furthering the legitimate business interest of Company within the scope of Employee' s duties with\nCompany; or (3) remove or transfer any Confidential Information or Trade Secrets from Company' s premises or systems (by any\nmethod or means) except for use in Company' s business and consistent with Employee’ s duties with the Company. The foregoing\ncovenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to\nCompany.\n(d) Employee acknowledges that Company has provided or will provide Employee with Company property, including\nwithout limitation, employee handbooks, policy manuals, price lists, financial reports, and vendor and supplier information, among\nother items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all\nproperty belonging to Company, including without limitation, all Confidential Information, Trade Secrets, and any property related to\nCompany, whether in electronic or other format, as well as any copies thereof, then in Employee’s custody, control, or possession.\nUpon the Separation Date, Employee shall provide Company with a declaration certifying that all Confidential Information and any\nother Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such\nitems to any third party, and that Employee has otherwise complied with the terms of Section 3 of this Agreement.\nre) Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure\nof a trade secret (as defined in section 1839 of title 18, United States Code) that (A) is made (i) in confidence to a federal, state, or\nlocal government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a\nsuspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. If Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee\nmay disclose the trade secret to the attorney of Employee and use the trade secret information in the court\n \nproceeding if Employee (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except as permitted by court order.\n4. Covenant Not to Compete. Employee acknowledges and agrees that Company has invested a great deal of time and money\nin developing relationships with its employees, customers, and ”Merchandise Vendors" (as defined below). Employee further\nacknowledges and agrees that in rendering services to Company, Employee has been, will be and will continue to be exposed to and\nlearn much information about Company' s business, including valuable Confidential Information and Trade Secrets, the Company's\nemployees, and the Company' s ”Merchandise Vendors,” to which Employee would not have access if not for Employee' s\nemployment with Company and which it would be unfair to disclose to others, or to use to Company' s disadvantage.\nEmployee acknowledges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Company' 5 legitimate business interests in its Trade Secreb, valuable Confidential Information and relationships\nand goodwill with its employees, customers, and "Merchandising Vendors.” Employee further acknowledges that Employee's skills, education and training qualify Employee to work and ohmin employment which does not violate this\nAgreement and that the restrictions in this Agreement have been crafted as narrowly as reasonably possible to protect Company' 5 legitimate business interests in its Trade Secreb, valuable Confidential Information and relationships and\ngoodwill with its employees, customers, and "Merchandising Vendors.”\nIn light of the foregoing, Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way competes with any aspect of\nCompany's business or that otherwise conflicts with Company’s interests. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not, within any geographic area\nin which Company does business at any time during Employee' 5 employment with Company: (a) become employed by or work for a ”Competitor” (as defined below) in any position or capacity involving duties and/or responsibilities\nwhich are the same as or substantially similar to any of the duties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to any of\nthe services which Employee performed or provided for the Company, for or on behalf of any Competitor. For purposes of this Section 4, the terrrr "C ompetitor” shall mean only the following businesses, commonly known as: Cato, TJX\n(including without limitation TJMAXX and Marshalls), Burlington Stores, Gabe' s/Rugged Wearhouse, and Ross Stores.\n5. Covenant Not to Solicit. During Employee’s employment with Company, and for a period of eighteen (18) months\nfollowing the Separation Date, and regardless of the reason for separation, Employee agrees not to solicit any ”Merchandise\nVendors" (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any ”Competitor” (as\ndefined in Section 4 of this Agreement). As used herein, ”Merchandise Vendors” means and includes any person or entity who/that\nhas been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding\nthe Separation Date or to whom/which Company is actively soliciting for the provision of merchandise and/or\ninventory, and with whom/which Employee had "material contact,” For purposes of this agreement, “material contact" means contact between Employee and an existing or prospective Merchandise Vendor: (a) with whom Employee\ndealt on behalf of Company within two years prior to the date of Employee's termination; (b) whose dealings with Company were coordinated or supervised by Employee within two years prior to the date of Employee' 5 termination;\nto) about whom Employee obtained Confidential Information in the ordinary course of business as a result of Employee's association with Company within two years prior to the date of Employee’s termination; or, (d) who provides\nmerchandise and/or inventory to Company, the provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee’s termination.\nEmployee specifically acknowledges and agrees that, as SeniorVice President & Chief Financial Officer, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins,\ninvolvement in establishing and maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors.\ns. Covenant Not to Recruit Personnel. During Employee' 5 employment with Company, and for a period of two (2) years\nfollowing the Separation Date, and regardless of the reason for separation, Employee will not: (a) recruit or solicit to hire or assist\nothers in recruiting or soliciting to hire, any employee or independent contractor of Company; or (b) cause or assist others in causing\nany employee or independent contractor of Company to terminate his/her relationship with Company.\n7. Severability. If any provision of this Agreement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the\nremaining provisions, and any partially enforceable provisions to the extent enforceable, shall be binding and remain in full force and\neffect. Further, each particular prohibition or restriction set forth in any Section of this Agreement shall be deemed a severable unit,\nand if any court of competent jurisdiction determines that any portion of such prohibition or restriction is against the policy of the law\nin any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be\nunconscionable, the court shall enforce so much of such restraint as is determined to be reasonably necessary to protect the legitimate\ninterests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine\nthat any of the covenants contained herein are overly-broad or otherwise unenforceable, the court may ”blue-pencil," modify, and/or\nreform any such covenant (in whole or in part) so as to cure the over-breadth or to otherwise render the covenant enforceable.\n3. Survival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies\nrelating thereto, shall survive the termination of this Agreement for any reason.\n9. Binding Effect. The covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be\nenforceable by Company and its successors, assigns, and successors-in-interest, including, without limitation, any corporation,\npartnership, or other entity with which Company may be merged or by which it may be acquired. Employee may not assign\nEmployee' 5 rights or obligations under this Agreement to any other party.\n \n10, Governing Law. All matters affecting this Agreement, including the validity thereof, are to be subject to, and interpreted\nand construed in accordance with, the laws of the State of Georgia applicable to contracts executed in and to be performed in that\nState.\n11. No Interference with Rights. Employee understands, agrees and acknowledges that nothing contained in this A greement\nwill prevent Employee from filing a charge or complaint with, reporting possible violations of any law or regulation, making\ndisclosures to, and/or participating in any investigation or proceeding conducted by, the National Labor Relations Board, Equal\nEmployment Opportunity Commission, the Securities and Exchange Commission, and/or any governmental authority charged with\nthe enforcement of any laws.\n12, Acknowledgment of Reasonableness/Remedies/Enforcement.\n(a) Employee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this\nAgreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement would result in irreparable injury and\npermanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are\ncritical to the success of Company's business, and do not cause undue hardship on Employee.\n(b) Employee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be\ndifficult and that money damages alone would be an inadequate remedy for the injuries and damages which would be suffered by\nCompany from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may\nhave under this Agreement, at law, or otherwise) to immediate injunctive and other equitable relief to prevent or curtail any such\nbreach or threatened breach by Employee. Employee and Company waive any requirement that a bond or any other security be\nposted. Nothing in this Agreement shall prohibit Company from seeking or recovering any legal or monetary damages to which it\nmay be entitled if Employee breaches any provision in this Agreement.\n[a In the event Employee breaches this Agreement, Employee shall be liable to Company for all costs of\nenforcement, including attorneys’ fees and court costs, in addition to all other damages and redress available to Company in equity or\nin law.\n13. Miscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior\ncontracts, agreements, or understandings between the parties which may have been entered into by Company and Employee relating\nto the subject matter hereof (including, without limitation, the Prior Confidentiality Agreement), except for any severance agreements\nor certain restricted stock award and stock option agreements, which are to remain in full force and effect. This Agreement may not\nbe amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of\neither party to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such\nprovision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement\nshall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek\nequitable relief in addition to money damages.\n \nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year set forth below.\nCiti Trends, Inc. /s/ Stuart Clifford\nyer re\nBy: /s/ Bruce D. Smith Date: 3/15/2018\nBruce D. Smith—\nChief Executive Officer\nEmployee Residence Address:\nDate: 3/15/2018	EX-10.3 a18-8439lex10d3.htm EX-10.3\nExhibit 10.3\nEMPLOYMENT NON-COMPETE NON-SOLICIT AND CONFIDENTIALITY AGREEMENT\nThis EMPLOY MENT NON-COMPETE, NON -SOLICIT AND CONFIDENTIALITY AGREEMENT ("Agreement") is entered into between Citi Trends, Inc., including its subsidiaries, affiliates, divisions, successors,\nand related entities ("Company") and Stuar Clifford ("Employee") effective as of the date signed by Employee below.\nFor and in consideration of the mutual covenants and agreements contained herein, including, but not limited to, Company agreeing to employ and/or continuing to employ Employee, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1.\nEmployment; Scope of Services. Company shall employ and/or continue to employ Employee, and Employee shall be\nemployed and/or continue to be employed by Company, as Senior Vice President & Chief Financial Officer. Employee shall use\nhis/her best efforts and shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and\nresponsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as assigned\nby the Board of Directors. Employee shall comply with Company's policies and procedures, shall conduct him/herself as an ethical\nbusiness professional, and shall comply with federal, state and local laws.\n2.\nAt-Will Employment. Nothing in this A greement alters the at-will employment relationship between Employee and\nCompany or limits Company's right to alter or modify Employee's job title or job duties and responsibilities any time at Company's\ndiscretion. Employment with Company is at-will" which means that either Employee or Company may terminate the employment\nrelationship at any time, with or without notice, with or without cause. The date of Employee's cessation of employment for any\nreason is the "Separation Date."\n3.\nConfidentiality.\n(a)\nEmployee acknowledges and agrees that: (1) the retail sale of value-priced/off-price family apparel is an extremely\ncompetitive industry; (2) Company has an ongoing strategy for expansion of its business in the United States; (3) Company's major\ncompetitors operate throughout the United States and some internationally; and (4) because of Employee's position as Senior Vice\nPresident & Chief Financial Officer, he/she will have access to, knowledge of, and be entrusted with, highly sensitive and\ncompetitive Confidential Information and Trade Secrets (as defined in subsection (b) below) of Company, including without\nlimitation information regarding sales margins, purchasing and pricing strategies, marketing strategies, vendors and suppliers, plans\nfor expansion and placement of stores, and also specific information about Company's districts and stores, such as staffing, budgets,\nprofits and the financial success of individual districts and stores, which Company has developed and will continue to develop and\nthe disclosure or use of which would cause Company great and irreparable harm.\n(b)\nAs used herein, "Confidential Information" means and includes any and all Company data and information in\nany form whatsoever (tangible or intangible) which: (1) relates to the business of Company, irrespective of whether the data or\ninformation constitutes a "trade\nsecret (as defined below); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee's relationship with Company; (3) has value to Company; and (4) is not generally known\nto\nCompany's competitors. "Confidential Information" includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices methods, techniques, drawings, processes, financial data and statements,\nfinancial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and confidential or\nproprietary information of such employees, vendors and suppliers. "Trade Secret" means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under applicable law.\nEmployee acknowledges and agrees that all Confidential Information and Trade Secrets are and remain the sole and exclusive property of Company.\n(c)\nEmployee agrees that he/she shall hold all Confidentia Information and Trade Secrets in strictest confidence, and\nthat he/she shall protect such Confidential Information and Trade Secrets from disclosure by or to others. Employee further agrees\nthat he/she shall not at any time (except as authorized by Company in connection with Employee's duties and responsibilities as an\nemployee): (1) disclose, publish, transfer, or communicate Confidentia Inforation or Trade Secrets to any person or entity, other\nthan authorized Company personnel; (2) use or reproduce Confidential Information or Trade Secrets for personal benefit or for any\npurpose or reason other than furthering the legitimate business interest of Company within the scope of Employee's duties with\nCompany; or (3) remove or transfer any Confidentia Information or Trade Secrets from Company's premises or systems (by any\nmethod or means) except for use in Company's business and consistent with Employee's duties with the Company. The foregoing\ncovenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to\nCompany.\n(d)\nEmployee acknowledges that Company has provided or will provide Employee with Company property, including\nwithout limitation, employee handbooks, policy manuals, price lists, financial reports, and vendor and supplier information, among\nother items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all\nproperty belonging to Company, including without limitation, all Confidential Information, Trade Secrets, and any property related to\nCompany, whether in electronic or other format, as well as any copies thereof, then in Employee's custody, control, or possession.\nUpon the Separation Date, Employee shall provide Company with a declaration certifying that all Confidential Information and any\nother Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such\nitems to any third party, and that Employee has otherwise complied with the terms of Section 3 of this A greement.\n(e)\nEmployee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure\nof a trade secret (as defined in section 1839 of title 18, United States Code) that (A is made (i) in confidence to a federal, state, or\nlocal government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a\nsuspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. If Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee\nmay disclose the trade secret to the attorney of Employee and use the trade secret information in the court\n2\nproceeding if Employee (A files any document containing the trade secret under seal and (B) does not disclose the trade secret, except as permitted by court order.\n4.\nCovenant Not to Compete. Employee acknowledges and agrees that Company has invested a great deal of time and money\nin developing relationships with its employees, customers, and "Merchandise Vendors" (as defined below). Employee further\nacknowledges and agrees that in rendering services to Company, Employee has been, will be and will continue to be exposed to and\nlearn much information about Company's business, including valuable Confidential Information and Trade Secrets, the Company's\nemployees, and the Company's "Merchandise Vendors," to which Employee would not have access if not for Employee's\nemployment with Company and which it would be unfair to disclose to others, or to use to Company's disadvantage.\nEmployee acknowledges and agrees tha the restrictions contained in this Agreement are necessary and reasonable to protect Company' legitimate business interests in its Trade Secrets, valuable Confidential Information and relationships\nand goodwill with its employees, customers, and "Merchandising Vendors." Employee further acknowledges that Employee's skills, education and training qualify Employee to work and obtain employment which does not violate this\ngreement and that the restrictions in this Agreement have been crafted as narrowly as reasonably possible to protect Company's legitimate business interests in its Trade Secrets, valuable Confidential Information and relationships and\ngoodwill with its employees, customers, and "Merchandising Vendors."\nIn light of the foregoing Employee agrees that he/she wil not, at any point during his/her employmen with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way competes with any aspect of\nCompany's business or that otherwise conflicts with Company's interests. In addition, for period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not, within any geographic area\nin which Company does business at any time during Employee's employment with Company: (a) become employed by or work for "Competitor" (as defined below) in any position or capacity involving duties and/or responsibilities\nwhich are the same as or substantially similar to any of the duties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to\nany\nof\nthe\nservices which Employee performed or provided for the Company, for or on behalf of any Competitor. For purposes of this Section 4, the term "Competitor" shall mean only the following businesses, commonly known as: Cato, TJX\n(including without limitation TJMAXX and Marshalls), Burlington Stores, Gabe s/Rugged w Vearhouse, and Ross Stores.\n5.\nCovenant Not to Solicit During Employee's employment with Company, and for a period of eighteen (18) months\nfollowing the Separation Date, and regardless of the reason for separation, Employee agrees not to solicit any "Merchandise\nVendors" (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any "Competitor" (as\ndefined in Section 4 of this A greement). As used herein, "Merchandise Vendors" means and includes any person or entity who/that\nhas been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding\nthe Separation Date or to whom/which Company is actively soliciting for the provision of merchandise and/or\n3\ninventory, and with whom/which Employee had "material contact." For purposes of this agreement, "material contact means contact between Employee and an existing or prospective Merchandise Vendor: (a) with whom Employee\ndealt on behalf of Company within two years prior to the date of Employee's termination; (b) whose dealings with Company were coordinated or supervised by Employee within two years prior to the date of Employee's termination;\n(c) about whom Employee obtained Confidential Information in the ordinary course of business as a resul of Employee's association with Company within two years prior to the date of Employee' termination; or, (d) who provides\nmerchandise and/or inventory to Company, the provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee's termination.\nEmployee specifically acknowledges and agrees that, as Senior Vice President & Chief Financial Officer, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins,\ninvolvement in establishing and maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors.\n6.\nCovenant Not to Recruit Personnel. During Employee's employment with Company, and for a period of two (2) years\nfollowing the Separation Date, and regardless of the reason for separation, Employee will not: (a) recruit or solicit to hire or assist\nothers in recruiting or soliciting to hire, any employee or independent contractor of Company; or (b) cause or assist others in causing\nany employee or independent contractor of Company to terminate his/her relationship with Company.\n7.\nSeverability If any provision of this A greement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the\nremaining provisions, and any partially enforceable provisions to the extent enforceable, shall be binding and remain in full force and\neffect. Further, each particular prohibition or restriction set forth in any Section of this A greement shall be deemed a severable unit,\nand if any court of competent jurisdiction determines that any portion of such prohibition or restriction is against the policy of the law\nin any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be\nunconscionable, the court shall enforce so much of such restraint as is determined to be reasonably necessary to protect the legitimate\ninterests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine\nthat any of the covenants contained herein are overly-broad or otherwise unenforceable, the court may "blue-pencil," modify, and/or\nreform any such covenant (in whole or in part) so as to cure the over-breadth or to otherwise render the covenant enforceable\n8.\nSurvival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this A greement, and all remedies\nrelating thereto, shall survive the termination of this greement for any reason.\n9.\nBinding Effect. The covenants, terms, and provisions set forth in this A greement shall inure to the benefit of and be\nenforceable by Company and its successors, assigns, and successors-in-interest including, without limitation, any corporation\npartnership, or other entity with which Company may be merged or by which it may be acquired. Employee may not assign\nEmployee's rights or obligations under this greement to any other party.\n4\n10.\nGoverning Law. All matters affecting this A greement, including the validity thereof, are to be subject to, and interpreted\nand construed in accordance with, the laws of the State of Georgia applicable to contracts executed in and to be performed in that\nState.\n11.\nNO Interference with Rights. Employee understands, agrees and acknowledges that nothing contained in this A greement\nwill prevent Employee from filing a charge or complaint with, reporting possible violations of any law or regulation, making\ndisclosures to, and/or participating in any investigation or proceeding conducted by, the National Labor Relations Board, Equal\nEmployment Opportunity Commission, the Securities and Exchange Commission, and/or any govermental authority charged with\nthe enforcement of any laws.\n12.\ncknowledgment of Reasonableness/Remedies/Enforcement\nEmployee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this\nA greement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this A greement would result in irreparable injury and\npermanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are\ncritical to the success of Company's business, and do not cause undue hardship on Employee.\n(b)\nEmployee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be\ndifficult and that money damages alone would be an inadequate remedy for the injuries and damages which would be suffered by\nCompany from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may\nhave under this A greement, at law, or otherwise) to immediate injunctive and other equitable relief to prevent or curtail any such\nbreach or threatened breach by Employee. Employee and Company waive any requirement that a bond or any other security be\nposted. Nothing in this A greement shall prohibit Company from seeking or recovering any legal or monetary damages to which it\nmay be entitled if Employee breaches any provision in this A greement.\n(c)\nIn the event Employee breaches this A greement, Employee shall be liable to Company for all costs of\nenforcement, including attorneys' fees and court costs, in addition to all other damages and redress available to Company in equity or\nin law.\n13.\nMiscellaneous. This A greement constitutes the entire agreement between the parties and supersedes any and all prior\ncontracts, agreements, or understandings between the parties which may have been entered into by Company and Employee relating\nto the subject matter hereof (including, without limitation, the Prior Confidentiality greement), except for any severance agreements\nor certain restricted stock award and stock option agreements, which are to remain in full force and effect. This greement may not\nbe amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of\neither party to enforce at any time any of the provisions of this A greement shall in no way be construed to be a waiver of any such\nprovision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this A greement\nshall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek\nequitable relief in addition to money damages.\n5\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year set forth below.\nCiti Trends, Inc.\n/s/ Stuart Clifford\nEmproyee signature\nBy:\n/s/ Bruce D. Smith\nDate:\n3/15/2018\nBruce D. Smitn\nChief Executive Officer\nEmployee Residence Address:\nDate:\n3/15/2018\n7	EX-10 .3 4 a18-8439_1ex10d3.htm EX-10.3\nExhibit 10.3\nEMPLOYMENT NON-COMPETE , NON -SOLICIT AND CONFIDENTIALITY AGREEMENT\nThis EMPLOYMENT NON-COMPETE, NON -SOLICIT AND CONFIDENTIALITY AGREEMENT (“Agreement”) is entered into between Citi Trends, Inc. , including its subsidiaries, affiliates, divisions, successors,\nand related entities (“Company”), and Stuart Clifford (“Employee”), effective as of the date signed by Employee below.\nFor and in consideration of the mutual covenants and agreements contained herein, including, but not limited to, Company agreeing to employ and/or continuing to employ Employee, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1.\nEmployment; Scope of Services. Company shall employ and/or continue to employ Employee, and Employee shall be\nemployed and/or continue to be employed by Company, as Senior Vice President & Chief Financial Officer. Employee shall use\nhis/her best efforts and shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and\nresponsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as assigned\nby the Board of Directors. Employee shall comply with Company’s policies and procedures, shall conduct him/herself as an ethical\nbusiness professional, and shall comply with federal, state and local laws.\n2.\nAt-Will Employment. Nothing in this Agreement alters the at-will employment relationship between Employee and\nCompany or limits Company’s right to alter or modify Employee’s job title or job duties and responsibilities any time at Company’s\ndiscretion. Employment with Company is “at-will” which means that either Employee or Company may terminate the employment\nrelationship at any time, with or without notice, with or without cause. The date of Employee’s cessation of employment for any\nreason is the “Separation Date.”\n3.\nConfidentiality.\n(a)\nEmployee acknowledges and agrees that: (1) the retail sale of value-priced/off-price family apparel is an extremely\ncompetitive industry; (2) Company has an ongoing strategy for expansion of its business in the United States; (3) Company’s major\ncompetitors operate throughout the United States and some internationally; and (4) because of Employee’s position as Senior Vice\nPresident & Chief Financial Officer, he/she will have access to, knowledge of, and be entrusted with, highly sensitive and\ncompetitive Confidential Information and Trade Secrets (as defined in subsection (b) below) of Company, including without\nlimitation information regarding sales margins, purchasing and pricing strategies, marketing strategies, vendors and suppliers, plans\nfor expansion and placement of stores, and also specific information about Company’s districts and stores, such as staffing, budgets,\nprofits and the financial success of individual districts and stores, which Company has developed and will continue to develop and\nthe disclosure or use of which would cause Company great and irreparable harm.\n(b)\nAs used herein, “Confidential Information” means and includes any and all Company data and information in\nany form whatsoever (tangible or intangible) which: (1) relates to the business of Company, irrespective of whether the data or\ninformation constitutes a “trade\nsecret” (as defined below); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee’s relationship with Company; (3) has value to Company; and (4) is not generally known to\nCompany’s competitors. “Confidential Information” includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data and statements,\nfinancial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and confidential or\nproprietary information of such employees, vendors and suppliers. “ Trade Secret” means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under applicable law.\nEmployee acknowledges and agrees that all Confidential Information and Trade Secrets are and remain the sole and exclusive property of Company.\n(c)\nEmployee agrees that he/she shall hold all Confidential Information and Trade Secrets in strictest confidence, and\nthat he/she shall protect such Confidential Information and Trade Secrets from disclosure by or to others. Employee further agrees\nthat he/she shall not at any time (except as authorized by Company in connection with Employee’s duties and responsibilities as an\nemployee): (1) disclose, publish, transfer, or communicate Confidential Information or Trade Secrets to any person or entity, other\nthan authorized Company personnel; (2) use or reproduce Confidential Information or Trade Secrets for personal benefit or for any\npurpose or reason other than furthering the legitimate business interest of Company within the scope of Employee’s duties with\nCompany; or (3) remove or transfer any Confidential Information or Trade Secrets from Company’s premises or systems (by any\nmethod or means) except for use in Company’s business and consistent with Employee’s duties with the Company. The foregoing\ncovenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to\nCompany.\n(d)\nEmployee acknowledges that Company has provided or will provide Employee with Company property, including\nwithout limitation, employee handbooks, policy manuals, price lists, financial reports, and vendor and supplier information, among\nother items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all\nproperty belonging to Company, including without limitation, all Confidential Information, Trade Secrets, and any property related to\nCompany, whether in electronic or other format, as well as any copies thereof, then in Employee’s custody, control, or possession.\nUpon the Separation Date, Employee shall provide Company with a declaration certifying that all Confidential Information and any\nother Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such\nitems to any third party, and that Employee has otherwise complied with the terms of Section 3 of this Agreement.\n(e)\nEmployee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure\nof a trade secret (as defined in section 1839 of title 18, United States Code) that (A) is made (i) in confidence to a federal, state, or\nlocal government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a\nsuspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. If Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee\nmay disclose the trade secret to the attorney of Employee and use the trade secret information in the court\n2\nproceeding if Employee (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except as permitted by court order.\n4.\nCovenant Not to Compete. Employee acknowledges and agrees that Company has invested a great deal of time and money\nin developing relationships with its employees, customers, and “Merchandise Vendors” (as defined below). Employee further\nacknowledges and agrees that in rendering services to Company, Employee has been, will be and will continue to be exposed to and\nlearn much information about Company’s business, including valuable Confidential Information and Trade Secrets, the Company’s\nemployees, and the Company’s “Merchandise Vendors,” to which Employee would not have access if not for Employee’s\nemployment with Company and which it would be unfair to disclose to others, or to use to Company’s disadvantage.\nEmployee acknowledges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Company’s legitimate business interests in its Trade Secrets, valuable Confidential Information and relationships\nand goodwill with its employees, customers, and “Merchandising Vendors.” Employee further acknowledges that Employee’s skills, education and training qualify Employee to work and obtain employment which does not violate this\nAgreement and that the restrictions in this Agreement have been crafted as narrowly as reasonably possible to protect Company’s legitimate business interests in its Trade Secrets, valuable Confidential Information and relationships and\ngoodwill with its employees, customers, and “Merchandising Vendors.”\nIn light of the foregoing, Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way competes with any aspect of\nCompany’s business or that otherwise conflicts with Company’s interests. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not, within any geographic area\nin which Company does business at any time during Employee’s employment with Company: (a) become employed by or work for a “Competitor” (as defined below) in any position or capacity involving duties and/or responsibilities\nwhich are the same as or substantially similar to any of the duties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to any of\nthe services which Employee performed or provided for the Company, for or on behalf of any Competitor. For purposes of this Section 4, the term “Competitor” shall mean only the following businesses, commonly known as: Cato, TJX\n(including without limitation TJMAXX and Marshalls), Burlington Stores, Gabe’s/Rugged Wearhouse, and Ross Stores.\n5.\nCovenant Not to Solicit. During Employee’s employment with Company, and for a period of eighteen (18) months\nfollowing the Separation Date, and regardless of the reason for separation, Employee agrees not to solicit any “Merchandise\nVendors” (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any “Competitor” (as\ndefined in Section 4 of this Agreement). As used herein, “Merchandise Vendors” means and includes any person or entity who/that\nhas been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding\nthe Separation Date or to whom/which Company is actively soliciting for the provision of merchandise and/or\n3\ninventory, and with whom/which Employee had “material contact.” For purposes of this agreement, “material contact” means contact between Employee and an existing or prospective Merchandise Vendor: (a) with whom Employee\ndealt on behalf of Company within two years prior to the date of Employee’s termination; (b) whose dealings with Company were coordinated or supervised by Employee within two years prior to the date of Employee’s termination;\n(c) about whom Employee obtained Confidential Information in the ordinary course of business as a result of Employee’s association with Company within two years prior to the date of Employee’s termination; or, (d) who provides\nmerchandise and/or inventory to Company, the provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee’s termination.\nEmployee specifically acknowledges and agrees that, as Senior Vice President & Chief Financial Officer, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins,\ninvolvement in establishing and maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors.\n6.\nCovenant Not to Recruit Personnel. During Employee’s employment with Company, and for a period of two (2) years\nfollowing the Separation Date, and regardless of the reason for separation, Employee will not: (a) recruit or solicit to hire or assist\nothers in recruiting or soliciting to hire, any employee or independent contractor of Company; or (b) cause or assist others in causing\nany employee or independent contractor of Company to terminate his/her relationship with Company.\n7.\nSeverability. If any provision of this Agreement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the\nremaining provisions, and any partially enforceable provisions to the extent enforceable, shall be binding and remain in full force and\neffect. Further, each particular prohibition or restriction set forth in any Section of this Agreement shall be deemed a severable unit,\nand if any court of competent jurisdiction determines that any portion of such prohibition or restriction is against the policy of the law\nin any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be\nunconscionable, the court shall enforce so much of such restraint as is determined to be reasonably necessary to protect the legitimate\ninterests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine\nthat any of the covenants contained herein are overly-broad or otherwise unenforceable, the court may “blue-pencil,” modify, and/or\nreform any such covenant (in whole or in part) so as to cure the over-breadth or to otherwise render the covenant enforceable.\n8.\nSurvival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies\nrelating thereto, shall survive the termination of this Agreement for any reason.\n9.\nBinding Effect. The covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be\nenforceable by Company and its successors, assigns, and successors-in-interest, including, without limitation, any corporation,\npartnership, or other entity with which Company may be merged or by which it may be acquired. Employee may not assign\nEmployee’s rights or obligations under this Agreement to any other party.\n4\n10.\nGoverning Law. All matters affecting this Agreement, including the validity thereof, are to be subject to, and interpreted\nand construed in accordance with, the laws of the State of Georgia applicable to contracts executed in and to be performed in that\nState.\n11.\nNo Interference with Rights. Employee understands, agrees and acknowledges that nothing contained in this Agreement\nwill prevent Employee from filing a charge or complaint with, reporting possible violations of any law or regulation, making\ndisclosures to, and/or participating in any investigation or proceeding conducted by, the National Labor Relations Board, Equal\nEmployment Opportunity Commission, the Securities and Exchange Commission, and/or any governmental authority charged with\nthe enforcement of any laws.\n12.\nAcknowledgment of Reasonableness/Remedies/Enforcement.\n(a)\nEmployee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this\nAgreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement would result in irreparable injury and\npermanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are\ncritical to the success of Company’s business, and do not cause undue hardship on Employee.\n(b)\nEmployee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be\ndifficult and that money damages alone would be an inadequate remedy for the injuries and damages which would be suffered by\nCompany from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may\nhave under this Agreement, at law, or otherwise) to immediate injunctive and other equitable relief to prevent or curtail any such\nbreach or threatened breach by Employee. Employee and Company waive any requirement that a bond or any other security be\nposted. Nothing in this Agreement shall prohibit Company from seeking or recovering any legal or monetary damages to which it\nmay be entitled if Employee breaches any provision in this Agreement.\n(c)\nIn the event Employee breaches this Agreement, Employee shall be liable to Company for all costs of\nenforcement, including attorneys’ fees and court costs, in addition to all other damages and redress available to Company in equity or\nin law.\n13.\nMiscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior\ncontracts, agreements, or understandings between the parties which may have been entered into by Company and Employee relating\nto the subject matter hereof (including, without limitation, the Prior Confidentiality Agreement), except for any severance agreements\nor certain restricted stock award and stock option agreements, which are to remain in full force and effect. This Agreement may not\nbe amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of\neither party to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such\nprovision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement\nshall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek\nequitable relief in addition to money damages.\n5\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year set forth below.\nCiti Trends, Inc.\n/s/ Stuart Clifford\nEmployee Signature\nBy:\n/s/ Bruce D. Smith\nDate:\n3/15/2018\nBruce D. Smith\nChief Executive Officer\nEmployee Residence Address:\nDate:\n3/15/2018\n7
41a5c23ade4478c4c34200f2088da140.pdf	effective_date jurisdiction party term	EX-99.(D)(2)(A) 18 dex99d2a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)(A)\nApril 22, 2008\nLS Cable Ltd.\nASEM Tower, (19-20F) 159\nSamsung-dong, Gangnam-gu\nSeoul 135-090\nKorea\nAttention: Mr. Choong-hyun Kim\nLadies and Gentlemen:\nYou are considering a possible negotiated transaction (the “Transaction”) with Superior Essex Inc. (collectively, with its affiliates,\nsubsidiaries, divisions and its and their predecessors, the “Company”). In connection therewith, the Company is willing to provide you with certain\nnon-public information concerning the Company. You acknowledge that certain of this information is proprietary to the Company and may include\ntrade secrets or other business information the disclosure of which could harm the Company. In consideration of the foregoing, you agree, and you\nagree to cause your directors, officers, employees, agents, advisors (including attorneys, accountants, investment bankers, consultants and any\nrepresentatives of such advisors), potential debt or equity financing sources (provided that such equity financing sources are limited to passive\ninstitutional investors who have executed a separate letter agreement with the Company substantially in the form of this letter agreement (a\n“Permitted Equity Financing Source”)), representatives and affiliates (collectively, “Representatives”), to treat any and all information concerning\nthe Company that is furnished to you or your Representatives (regardless of the manner in which it is furnished) now or in the future by or on behalf\nof the Company, together with any notes, analyses, compilations, studies, interpretations, documents or records containing, referring, relating to,\nbased upon or derived from such information, in whole or in part (collectively, “Evaluation Material”) in accordance with the provisions of this letter\nagreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in breach of this letter agreement, (ii) was available to you or any of your\nRepresentatives, or has become available to you or any of your Representatives, on a non-confidential basis from a source other than the Company\nor any of its Representatives; provided, that the source of such information was not believed by you after reasonable inquiry to be bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information,\nor (iii) you or any of your Representatives independently developed without reference to Evaluation Material or any derivative thereof.\n2. You hereby agree that you will, and will cause your Representatives to, (a) use the Evaluation Material solely for the purpose of\nevaluating and pursuing a Transaction and not for any other purpose, (b) keep the Evaluation Material confidential and (c) not disclose any of the\nEvaluation Material in any manner whatsoever without the prior written consent of the Company or as expressly otherwise permitted by the terms\nhereof; provided, however, that you or your Representatives may disclose any of such information to your Representatives (i) who need to know\nsuch information for the sole purpose of evaluating the Transaction, (ii) who are\n1\ninformed by you of the confidential nature of such information, and (iii) who are provided with a copy of this letter agreement and agree to act in\naccordance with its terms as if they were bound hereby or are otherwise bound by a duty of confidentiality. You agree to be responsible to the\nCompany for any breach of this letter agreement by any of your Representatives.\n3. Each of the parties agree that it and its Representatives will not disclose, without the prior written consent of the other party, to any\nother person that the Evaluation Material has been made available to you, that discussions or negotiations are taking or have taken place between the\nparties concerning the Transaction or any other transaction involving you and the Company, or any of the terms, conditions or other facts with\nrespect thereto (including the status thereof) (the “Discussion Information”), nor will you (or your Representatives) have any communications\nwhatsoever with any other potential purchaser (other than a Permitted Equity Financing Source), concerning the Transaction. The term “person” as\nused in this letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\n4. You agree that for a period of eighteen months following the date of this letter agreement, neither you nor any of your affiliates (as\nsuch term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), who have been provided access to the\nEvaluation Material or have been made aware of the fact that you are or were considering a Transaction shall solicit to employ or employ (a) any\nnow or then current employee of the Company who has participated in discussions contemplated by this letter agreement, (b) any officer of the\nCompany as of the date hereof or (c) any now or then current employee who became known to you in connection with your evaluation of the\nTransaction; provided, however, that the foregoing shall not prevent you from (A) making general public solicitations or advertisements in the\nordinary course of business not targeted directly or indirectly at employees or officers of the Company or (B) responding to any person who contacts\nyou or your affiliates regarding his or her own employment with you or any of your affiliates on his or her own initiative without any direct\nsolicitation by you or any of your affiliates other than any generalized search or ordinary course practice referred to in clause (A) above.\n5. You agree that, for a period ending two years from the date hereof (the “Standstill Period”), neither any Covered Party (as defined\nbelow) nor anyone authorized to act on behalf of any such Covered Party will, directly or indirectly, alone or in concert with others, unless in each\ncase specifically requested in writing to do so by the Company (a) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, ownership\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 promulgated under the Exchange Act) of more than 1% of any class of\nvoting securities (including securities convertible into more than 1% of any such class of voting securities) (“Voting Securities”) issued by the\nCompany or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company’s consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the Company, (b) enter, agree to enter, propose, seek or offer to enter\ninto or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or any of\nits subsidiaries or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company’s consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the\n2\nCompany, (c) make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) with\nrespect to the Voting Securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving or\nwithholding of proxies with respect to, any Voting Securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control\n(whether through a “group”, as such term is used in Rule 13d-5 promulgated under the Exchange Act, or otherwise) the management, board of\ndirectors, policies or affairs of the Company or any of its subsidiaries, (e) make any request to waive or amend any provision of this paragraph\n(including this clause), (f) take any action that would reasonably be expected to require the Company to make an announcement to the holders of its\nsecurities regarding the possibility of a business combination, merger or other type of transaction described in this paragraph with you and/or your\naffiliates (provided that, taking any action to comply with the requirements under applicable law, regulation or legal process (including, but not\nlimited to, rules or regulations of any securities exchange or similar regulatory organization) permitted under Section 6 below shall not be deemed to\nbe prohibited by this clause (f)), (g) form, join or in any way participate in a group or act jointly or in concert with others in connection with any of\nthe foregoing, (h) disclose to any person other than your Representatives any intention, plan or arrangement inconsistent with, or prohibited by, any\nof the foregoing, or (i) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons to\ndo any of the foregoing. Notwithstanding the foregoing (other than clause (f) above), nothing in this letter agreement shall prohibit you from making\na one-time non-public proposal to the Company’s board of directors promptly following the completion of the initial due diligence and the meeting\nwith the management (provided that you may make an additional non-public proposal should the Company provide the notification described in the\npenultimate sentence of the next paragraph and (i) such notification occurs prior to the completion of your meeting with management and (ii) you\nmake such proposal promptly following such notification). The term “Covered Party” shall mean you or any of your affiliates and any Permitted\nEquity Financing Source.\nIf the Company has in effect on the date hereof any agreement, or, during the Standstill Period, enters into or amends any agreement,\nrelating to the provision of non-public information to a person or group in connection with a possible acquisition by such person or group of more\nthan 50% of the Company’s Voting Securities through a merger, business combination or other extraordinary transaction (any of the foregoing, a\n“Business Combination”) and such agreement (a “Third Party Agreement”) includes a shorter time period than the Standstill Period with respect to\nrestrictions on such other party’s acquisitions of the Company’s shares, then the Standstill Period set forth in the preceding paragraph shall expire\nupon the expiration of such shorter time period commencing from the date of this letter agreement. In such event, the Company agrees to notify you\npromptly following the earlier expiration of your Standstill Period that the restrictions set forth in the preceding paragraph are no longer applicable to\nyou. If the board of directors of the Company is scheduled to meet prior to May 6, 2008 to consider a bona fide proposalfrom a third party with\nrespect to a Business Combination, the Company shall provide you with notice of such meeting not less than one New York business day prior to\nsuch meeting (provided that such notice shall be limited to the fact that the board is considering a bona fide proposal with respect to a Business\nCombination and shall not include the identity of the third party or any proposed term of the Business Combination or any other\n3\ninformation). Any notice required under the immediately preceding sentence shall be made by telephone to Choong-hyun Kim at +82-2-2189-9075\nand in writing by electronic and facsimile transmission (with a copy of such electronic and facsimile transaction to your advisors, Cleary Gottlieb\nSteen & Hamilton LLP (Attention: Victor I. Lewkow (vlewkow@cgsh.com) and Sang Jin Han (shan@cgsh.com); facsimile number: (212) 225-\n3999) and Macquarie Capital (USA) Inc. (Attention: Charles W. Mills (charles.mills@macquarie.com); facsimile number: (404) 815-3430).\n6. In the event that (a) you or any of your Representatives are required to disclose any of the Evaluation Material or (b) either party or\nany of its Representatives are required to disclose any of the Discussion Information, in each case, by applicable law, regulation or legal process\n(including, but not limited to, rules or regulations of any securities exchange or similar self-regulatory organization (including by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process)), the disclosing party will promptly\nnotify the other party by telephone (in the case of the Company, Barbara Blackford at (404) 580-3210, David Aldridge at (404) 725-7630 and Justin\nDeedy at (770) 335-4538, and, in the case of you, Choong-hyun Kim at +82-2 -2189-9075 and in writing by electronic and facsimile transmission so\nthat the other party may seek a protective order or other appropriate remedy or waive compliance with the applicable provisions of this letter\nagreement by the disclosing party or such of its Representatives (it being understood that, in the case of (b) above, once the disclosing party has\nnotified the other party as provided above, nothing herein shall be deemed to prevent the disclosing party from complying with such requirement in a\ntimely manner). Nothing herein shall be deemed to prevent you or your Representatives, as the case may be, from honoring a subpoena that seeks\ndiscovery of the Evaluation Material or prevent either party or its Representatives from honoring a subpoena that seeks discovery of Discussion\nInformation if (i) a motion for a protective order, motion to quash and/or other motion filed to prevent the production or disclosure of the Evaluation\nMaterial or Discussion Information, as the case may be, has been denied or is not made; provided, however, that you disclose only that portion of the\nEvaluation Material and either party may disclose only that portion of the Discussion Information which such party’s outside legal counsel advises is\nlegally required and that such party exercises all reasonable best efforts to preserve the confidentiality of the remainder of the Evaluation Material or\nDiscussion Information, as the case may be; or (ii) the Company consents in writing to having the Evaluation Material or the other party consents in\nwriting to having the Discussion Information, as the case may be, produced or disclosed pursuant to the subpoena. In no event will you or any of\nyour Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the Evaluation Material\nor Discussion Information or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material or Discussion\nInformation.\n7. If you determine not to proceed with the Transaction, you will promptly notify the Company of that decision. In that case, or at any\ntime after May 6, 2008 upon the written request of the Company for any reason, you will either (i) promptly destroy all copies of the Evaluation\nMaterial in your or your Representatives’ possession or (ii) promptly deliver to the Company at your own expense all remaining copies of the\nEvaluation Material in your or your Representatives’ possession, except in either case you may retain such copies as required by applicable law or\nregulation. In addition, you agree promptly to certify in writing to the\n4\nCompany that you have complied with your obligations under this paragraph. Notwithstanding the return or destruction of the Evaluation Material,\nyou and your Representatives will continue to be bound by your and their obligations hereunder and any copy of the Evaluation Material permitted\nhereunder to be retained will remain subject to this letter agreement for so long as such Evaluation Material is retained.\n8. You acknowledge that none of the Company or any of its Representatives makes any representation or warranty, express or implied, as\nto the accuracy or completeness of the Evaluation Material. None of the Company or any of its Representatives shall have any liability or obligation\nto you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties that are made in a final binding written definitive agreement regarding the Transaction between the\nCompany and you (a “Definitive Agreement”), when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or oral acceptance of any offer or bid made by you.\n9. Each party understands and agrees that no contract or agreement (or agreement to agree) providing for any Transaction between you\nand the Company shall be deemed to exist unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction unless\nand until the Parties shall have entered into a Definitive Agreement. The parties also agree that unless and until a Definitive Agreement has been\nexecuted and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction\nby virtue of this letter agreement or any other communication except, in the case of this letter agreement, for the matters specifically agreed to\nherein. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction, terminate discussions and negotiations with you, or refuse to provide any further access to\nEvaluation Material. Neither this paragraph nor any other provision in this letter agreement can be waived or amended except by explicit written\nconsent of each party hereto. Any attempted waiver or modification in violation of this provision shall be void.\n10. It is understood and agreed that no failure or delay by the Company or you in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. Each of the parties acknowledges that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nother party or any of its Representatives and consents to a court of competent jurisdiction entering an order finding that the Company or you, as\napplicable, has been irreparably harmed as a result of any such breach and to the granting of injunctive relief without proof of actual damages as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by a party\n5\nor its Representatives of this letter agreement but shall be in addition to all other remedies available at law or equity. Each of the parties agrees to\nwaive, and to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy.\n12. This letter agreement and all disputes or controversies arising out of or related to this letter agreement shall be governed by and\nconstrued in accordance with the internal laws of the State of New York, without reference to any conflicts of law principles which would result in\nthe application of the laws of another jurisdiction.\n13. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork and of the United States of America located in the Borough of Manhattan in the City of New York for any actions, suits or proceedings arising\nout of or relating to this letter agreement or the Transaction and agrees (i) not to commence any action, suit or proceeding relating thereto except in\nsuch courts, and (ii) to waive any defenses as to personal jurisdiction of such courts over such party. We agree that service of any process, summons,\nnotice or document by facsimile transmission to (770) 657-6479, Attention: Barbara Blackford, (with copy by U.S . registered mail to us at the\naddress set forth above) shall be effective service of process for any action, suit or proceeding brought against us in any such court. You hereby\nirrevocably designate CT Corporation System (in such capacity, the “process agent”), with an office at 111 Eighth Avenue New York, NY 10011, as\nyour designee, appointee and agent to receive, for and on your behalf service of process in such jurisdiction in any legal action or proceedings with\nrespect to this letter agreement or the Transaction, and such service shall be deemed complete upon delivery thereof to the process agent; provided\nthat in the case of any such service upon the process agent, we shall also deliver a copy thereof to you by facsimile transmission at +82-2 -2189 -9129,\nAttention: Choong-hyun Kim (with a copy to Cleary Gottlieb Steen & Hamilton LLP, Attention: Victor I. Lewkow and Sang Jin Han, (212) 225-\n3999. You shall take all such action as may be necessary to continue said appointment in full force and effect or to appoint another agent so that you\nwill at all times have an agent for service of process for the above purposes in New York, New York. Each party hereby irrevocably and\nunconditionally (x) waives any objection to the laying of venue of any action, suit or proceeding arising out of this letter agreement in the courts of\nthe State of New York or the United States of America located in the Borough of Manhattan in the City of New York, (y) waives and agrees not to\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum, and\n(z) waives, and agrees not to assert in any such court any claim that it or its property is exempt or immune from jurisdiction of any such court or\nfrom any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution\nof judgment, execution of judgment or otherwise).\n14. Except as provided in Sections, 5, 6 and 13, any notice or other communication hereunder shall be sufficient if in writing, and sent by\nfacsimile or electronic transmission to, in the case of the Company, (770) 657-6479, Attention: Barbara Blackford, email:\nbarbara.blackford@spsx.com, or, in your case, +82-2-2189-9129, Attention: Choong-hyun Kim, email: kimch@lscable.com .\n6\n15. The provisions of this letter agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This letter agreement represents the entire understanding with respect to the matters contained herein and supersedes all prior\nagreements, arrangements, and understandings between the parties with respect to such matters.\n17. This letter agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n18. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company.\n19. Except as otherwise provided in paragraphs 4 and 5 hereof, the term of this letter agreement shall be three years (the “Term”), unless\notherwise agreed in writing by the mutual agreement between you and the Company. If the Company has in effect on the date hereof any Third Party\nAgreement, or, during the Term, enters into or amends any Third Party Agreement, and such Third Party Agreement includes a shorter time period\nthan the Term with respect to the requirement that the non-public information provided by the Company under such Third Party Agreement be kept\nconfidential by the recipient of such information thereunder, then the Term set forth in the preceding sentence shall expire upon the expiration of\nsuch shorter time period commencing from the date of this letter agreement (provided that paragraph 5 will remain in effect for the Standstill Period,\nsubject to modification in accordance with that paragraph). In such event, the Company agrees to notify you promptly following the earlier\nexpiration of your Term of such expiration.\n[Remainder of page intentionally left blank]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nSUPERIOR ESSEX INC.\nBy: /s/ David S. Aldridge\nName: David S. Aldridge\nTitle: EVP & CFO\nAccepted and agreed as of the date first written above:\nLS CABLE LTD.\nBy: /s/ Choong-hyun Kim\nName: Choong-hyun Kim\nTitle: Senior Vice President	EX-99.(D)(2)(A) 18 dex99d2a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)(A)\nApril 22, 2008\nLS Cable Ltd.\nASEM Tower, (19-20F) 159\nSamsung-dong, Gangnam-gu\nSeoul 135-090\nKorea\nAttention: Mr. Choong-hyun Kim\nLadies and Gentlemen:\nYou are considering a possible negotiated transaction (the “Transaction”) with Superior Essex Inc. (collectively, with its affiliates,\nsubsidiaries, divisions and its and their predecessors, the “Company”). In connection therewith, the Company is willing to provide you with certain\nnon-public information concerning the Company. You acknowledge that certain of this information is proprietary to the Company and may include\ntrade secrets or other business information the disclosure of which could harm the Company. In consideration of the foregoing, you agree, and you\nagree to cause your directors, officers, employees, agents, advisors (including attorneys, accountants, investment bankers, consultants and any\nrepresentatives of such advisors), potential debt or equity financing sources (provided that such equity financing sources are limited to passive\ninstitutional investors who have executed a separate letter agreement with the Company substantially in the form of this letter agreement (a\n“Permitted Equity Financing Source”)), representatives and affiliates (collectively, “Representatives”), to treat any and all information concerning\nthe Company that is furnished to you or your Representatives (regardless of the manner in which it is furnished) now or in the future by or on behalf\nof the Company, together with any notes, analyses, compilations, studies, interpretations, documents or records containing, referring, relating to,\nbased upon or derived from such information, in whole or in part (collectively, “Evaluation Material”) in accordance with the provisions of this letter\nagreement, and to take or abstain from taking the other actions hereinafter set forth.\n \n1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in breach of this letter agreement, (ii) was available to you or any of your\nRepresentatives, or has become available to you or any of your Representatives, on a non-confidential basis from a source other than the Company\nor any of its Representatives; provided, that the source of such information was not believed by you after reasonable inquiry to be bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information,\nor (iii) you or any of your Representatives independently developed without reference to Evaluation Material or any derivative thereof.\n2. You hereby agree that you will, and will cause your Representatives to, (a) use the Evaluation Material solely for the purpose of\nevaluating and pursuing a Transaction and not for any other purpose, (b) keep the Evaluation Material confidential and (c) not disclose any of the\nEvaluation Material in any manner whatsoever without the prior written consent of the Company or as expressly otherwise permitted by the terms\nhereof; provided, however, that you or your Representatives may disclose any of such information to your Representatives (i) who need to know\nsuch information for the sole purpose of evaluating the Transaction, (ii) who are\n1\ninformed by you of the confidential nature of such information, and (iii) who are provided with a copy of this letter agreement and agree to act in\naccordance with its terms as if they were bound hereby or are otherwise bound by a duty of confidentiality. You agree to be responsible to the\nCompany for any breach of this letter agreement by any of your Representatives.\n3. Each of the parties agree that it and its Representatives will not disclose, without the prior written consent of the other party, to any\nother person that the Evaluation Material has been made available to you, that discussions or negotiations are taking or have taken place between the\nparties concerning the Transaction or any other transaction involving you and the Company, or any of the terms, conditions or other facts with\nrespect thereto (including the status thereof) (the “Discussion Information”), nor will you (or your Representatives) have any communications\nwhatsoever with any other potential purchaser (other than a Permitted Equity Financing Source), concerning the Transaction. The term “person” as\nused in this letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\n4. You agree that for a period of eighteen months following the date of this letter agreement, neither you nor any of your affiliates (as\nsuch term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), who have been provided access to the\nEvaluation Material or have been made aware of the fact that you are or were considering a Transaction shall solicit to employ or employ (a) any\nnow or then current employee of the Company who has participated in discussions contemplated by this letter agreement, (b) any officer of the\nCompany as of the date hereof or (c) any now or then current employee who became known to you in connection with your evaluation of the\nTransaction; provided, however, that the foregoing shall not prevent you from (A) making general public solicitations or advertisements in the\nordinary course of business not targeted directly or indirectly at employees or officers of the Company or (B) responding to any person who contacts\nyou or your affiliates regarding his or her own employment with you or any of your affiliates on his or her own initiative without any direct\nsolicitation by you or any of your affiliates other than any generalized search or ordinary course practice referred to in clause (A) above.\n5. You agree that, for a period ending two years from the date hereof (the “Standstill Period”), neither any Covered Party (as defined\nbelow) nor anyone authorized to act on behalf of any such Covered Party will, directly or indirectly, alone or in concert with others, unless in each\ncase specifically requested in writing to do so by the Company (a) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, ownership\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 promulgated under the Exchange Act) of more than 1% of any class of\nvoting securities (including securities convertible into more than 1% of any such class of voting securities) (“Voting Securities”) issued by the\nCompany or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company’s consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the Company, (b) enter, agree to enter, propose, seek or offer to enter\ninto or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or any of\nits subsidiaries or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company’s consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the\n2\nCompany, (c) make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) with\nrespect to the Voting Securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving or\nwithholding of proxies with respect to, any Voting Securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control\n(whether through a “group”, as such term is used in Rule 13d-5 promulgated under the Exchange Act, or otherwise) the management, board of\ndirectors, policies or affairs of the Company or any of its subsidiaries, (¢) make any request to waive or amend any provision of this paragraph\n(including this clause), (f) take any action that would reasonably be expected to require the Company to make an announcement to the holders of its\nsecurities regarding the possibility of a business combination, merger or other type of transaction described in this paragraph with you and/or your\naffiliates (provided that, taking any action to comply with the requirements under applicable law, regulation or legal process (including, but not\nlimited to, rules or regulations of any securities exchange or similar regulatory organization) permitted under Section 6 below shall not be deemed to\nbe prohibited by this clause (f)), (g) form, join or in any way participate in a group or act jointly or in concert with others in connection with any of\nthe foregoing, (h) disclose to any person other than your Representatives any intention, plan or arrangement inconsistent with, or prohibited by, any\nof the foregoing, or (i) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons to\ndo any of the foregoing. Notwithstanding the foregoing (other than clause (f) above), nothing in this letter agreement shall prohibit you from making\na one-time non-public proposal to the Company’s board of directors promptly following the completion of the initial due diligence and the meeting\nwith the management (provided that you may make an additional non-public proposal should the Company provide the notification described in the\npenultimate sentence of the next paragraph and (i) such notification occurs prior to the completion of your meeting with management and (ii) you\nmake such proposal promptly following such notification). The term “Covered Party” shall mean you or any of your affiliates and any Permitted\nEquity Financing Source.\nIf the Company has in effect on the date hereof any agreement, or, during the Standstill Period, enters into or amends any agreement,\nrelating to the provision of non-public information to a person or group in connection with a possible acquisition by such person or group of more\nthan 50% of the Company’s Voting Securities through a merger, business combination or other extraordinary transaction (any of the foregoing, a\n“Business Combination) and such agreement (a “Third Party Agreement”) includes a shorter time period than the Standstill Period with respect to\nrestrictions on such other party’s acquisitions of the Company’s shares, then the Standstill Period set forth in the preceding paragraph shall expire\nupon the expiration of such shorter time period commencing from the date of this letter agreement. In such event, the Company agrees to notify you\npromptly following the earlier expiration of your Standstill Period that the restrictions set forth in the preceding paragraph are no longer applicable to\nyou. If the board of directors of the Company is scheduled to meet prior to May 6, 2008 to consider a bona fide proposalfrom a third party with\nrespect to a Business Combination, the Company shall provide you with notice of such meeting not less than one New York business day prior to\nsuch meeting (provided that such notice shall be limited to the fact that the board is considering a bona fide proposal with respect to a Business\nCombination and shall not include the identity of the third party or any proposed term of the Business Combination or any other\n3\ninformation). Any notice required under the immediately preceding sentence shall be made by telephone to Choong-hyun Kim at +82-2-2189-9075\nand in writing by electronic and facsimile transmission (with a copy of such electronic and facsimile transaction to your advisors, Cleary Gottlieb\nSteen & Hamilton LLP (Attention: Victor I. Lewkow (vlewkow@cgsh.com) and Sang Jin Han (shan@cgsh.com); facsimile number: (212) 225-\n3999) and Macquarie Capital (USA) Inc. (Attention: Charles W. Mills (charles.mills@macquarie.com); facsimile number: (404) 815-3430).\n6. In the event that (a) you or any of your Representatives are required to disclose any of the Evaluation Material or (b) either party or\nany of its Representatives are required to disclose any of the Discussion Information, in each case, by applicable law, regulation or legal process\n(including, but not limited to, rules or regulations of any securities exchange or similar self-regulatory organization (including by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process)), the disclosing party will promptly\nnotify the other party by telephone (in the case of the Company, Barbara Blackford at (404) 580-3210, David Aldridge at (404) 725-7630 and Justin\nDeedy at (770) 335-4538, and, in the case of you, Choong-hyun Kim at +82-2-2189-9075 and in writing by electronic and facsimile transmission so\nthat the other party may seek a protective order or other appropriate remedy or waive compliance with the applicable provisions of this letter\nagreement by the disclosing party or such of its Representatives (it being understood that, in the case of (b) above, once the disclosing party has\nnotified the other party as provided above, nothing herein shall be deemed to prevent the disclosing party from complying with such requirement in a\ntimely manner). Nothing herein shall be deemed to prevent you or your Representatives, as the case may be, from honoring a subpoena that seeks\ndiscovery of the Evaluation Material or prevent either party or its Representatives from honoring a subpoena that seeks discovery of Discussion\nInformation if (i) a motion for a protective order, motion to quash and/or other motion filed to prevent the production or disclosure of the Evaluation\nMaterial or Discussion Information, as the case may be, has been denied or is not made; provided, however, that you disclose only that portion of the\nEvaluation Material and either party may disclose only that portion of the Discussion Information which such party’s outside legal counsel advises is\nlegally required and that such party exercises all reasonable best efforts to preserve the confidentiality of the remainder of the Evaluation Material or\nDiscussion Information, as the case may be; or (ii) the Company consents in writing to having the Evaluation Material or the other party consents in\nwriting to having the Discussion Information, as the case may be, produced or disclosed pursuant to the subpoena. In no event will you or any of\nyour Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the Evaluation Material\nor Discussion Information or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material or Discussion\nInformation.\n7. If you determine not to proceed with the Transaction, you will promptly notify the Company of that decision. In that case, or at any\ntime after May 6, 2008 upon the written request of the Company for any reason, you will either (i) promptly destroy all copies of the Evaluation\nMaterial in your or your Representatives’ possession or (ii) promptly deliver to the Company at your own expense all remaining copies of the\nEvaluation Material in your or your Representatives’ possession, except in either case you may retain such copies as required by applicable law or\nregulation. In addition, you agree promptly to certify in writing to the\nCompany that you have complied with your obligations under this paragraph. Notwithstanding the return or destruction of the Evaluation Material,\nyou and your Representatives will continue to be bound by your and their obligations hereunder and any copy of the Evaluation Material permitted\nhereunder to be retained will remain subject to this letter agreement for so long as such Evaluation Material is retained.\n8. You acknowledge that none of the Company or any of its Representatives makes any representation or warranty, express or implied, as\nto the accuracy or completeness of the Evaluation Material. None of the Company or any of its Representatives shall have any liability or obligation\nto you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties that are made in a final binding written definitive agreement regarding the Transaction between the\nCompany and you (a “Definitive Agreement”), when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or oral acceptance of any offer or bid made by you.\n9. Each party understands and agrees that no contract or agreement (or agreement to agree) providing for any Transaction between you\nand the Company shall be deemed to exist unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction unless\nand until the Parties shall have entered into a Definitive Agreement. The parties also agree that unless and until a Definitive Agreement has been\nexecuted and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction\nby virtue of this letter agreement or any other communication except, in the case of this letter agreement, for the matters specifically agreed to\nherein. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction, terminate discussions and negotiations with you, or refuse to provide any further access to\nEvaluation Material. Neither this paragraph nor any other provision in this letter agreement can be waived or amended except by explicit written\nconsent of each party hereto. Any attempted waiver or modification in violation of this provision shall be void.\n10. It is understood and agreed that no failure or delay by the Company or you in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. Each of the parties acknowledges that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nother party or any of its Representatives and consents to a court of competent jurisdiction entering an order finding that the Company or you, as\napplicable, has been irreparably harmed as a result of any such breach and to the granting of injunctive relief without proof of actual damages as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by a party\n5\nor its Representatives of this letter agreement but shall be in addition to all other remedies available at law or equity. Each of the parties agrees to\nwaive, and to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy.\n12. This letter agreement and all disputes or controversies arising out of or related to this letter agreement shall be governed by and\nconstrued in accordance with the internal laws of the State of New York, without reference to any conflicts of law principles which would result in\nthe application of the laws of another jurisdiction.\n13. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork and of the United States of America located in the Borough of Manhattan in the City of New York for any actions, suits or proceedings arising\nout of or relating to this letter agreement or the Transaction and agrees (i) not to commence any action, suit or proceeding relating thereto except in\nsuch courts, and (ii) to waive any defenses as to personal jurisdiction of such courts over such party. We agree that service of any process, summons,\nnotice or document by facsimile transmission to (770) 657-6479, Attention: Barbara Blackford, (with copy by U.S. registered mail to us at the\naddress set forth above) shall be effective service of process for any action, suit or proceeding brought against us in any such court. You hereby\nirrevocably designate CT Corporation System (in such capacity, the “process agent”), with an office at 111 Eighth Avenue New York, NY 10011, as\nyour designee, appointee and agent to receive, for and on your behalf service of process in such jurisdiction in any legal action or proceedings with\nrespect to this letter agreement or the Transaction, and such service shall be deemed complete upon delivery thereof to the process agent; provided\nthat in the case of any such service upon the process agent, we shall also deliver a copy thereof to you by facsimile transmission at +82-2-2189-9129,\nAttention: Choong-hyun Kim (with a copy to Cleary Gottlieb Steen & Hamilton LLP, Attention: Victor I. Lewkow and Sang Jin Han, (212) 225-\n3999. You shall take all such action as may be necessary to continue said appointment in full force and effect or to appoint another agent so that you\nwill at all times have an agent for service of process for the above purposes in New York, New York. Each party hereby irrevocably and\nunconditionally (x) waives any objection to the laying of venue of any action, suit or proceeding arising out of this letter agreement in the courts of\nthe State of New York or the United States of America located in the Borough of Manhattan in the City of New York, (y) waives and agrees not to\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum, and\n(z) waives, and agrees not to assert in any such court any claim that it or its property is exempt or immune from jurisdiction of any such court or\nfrom any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution\nof judgment, execution of judgment or otherwise).\n14. Except as provided in Sections, 5, 6 and 13, any notice or other communication hereunder shall be sufficient if in writing, and sent by\nfacsimile or electronic transmission to, in the case of the Company, (770) 657-6479, Attention: Barbara Blackford, email:\nbarbara.blackford@spsx.com, or, in your case, +82-2-2189-9129, Attention: Choong-hyun Kim, email: kimch@lscable.com.\n6\n15. The provisions of this letter agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This letter agreement represents the entire understanding with respect to the matters contained herein and supersedes all prior\nagreements, arrangements, and understandings between the parties with respect to such matters.\n17. This letter agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n18. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company.\n19. Except as otherwise provided in paragraphs 4 and 5 hereof, the term of this letter agreement shall be three years (the “Term”), unless\notherwise agreed in writing by the mutual agreement between you and the Company. If the Company has in effect on the date hereof any Third Party\nAgreement, or, during the Term, enters into or amends any Third Party Agreement, and such Third Party Agreement includes a shorter time period\nthan the Term with respect to the requirement that the non-public information provided by the Company under such Third Party Agreement be kept\nconfidential by the recipient of such information thereunder, then the Term set forth in the preceding sentence shall expire upon the expiration of\nsuch shorter time period commencing from the date of this letter agreement (provided that paragraph 5 will remain in effect for the Standstill Period,\nsubject to modification in accordance with that paragraph). In such event, the Company agrees to notify you promptly following the earlier\nexpiration of your Term of such expiration.\n[Remainder of page intentionally left blank]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company. Accepted and agreed as of the date first written above: LS CABLE LTD. By:\n/s/ Choong-hyun Kim Name: Choong-hyun Kim Title:\nSenior Vice President\nVery truly yours,\nSUPERIOR ESSEX INC.\nBy: /s/David S. Aldridge\nName: David S. Aldridge\nTitle: EVP & CFO	EX-99.(D)(2)(A) 18 dex99d2a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)(A)\nApril 22, 2008\nLS Cable Ltd.\nASEM Tower, (19-20F) 159\nSamsung-dong, Gangnam-gu\nSeoul 135-090\nKorea\nAttention: Mr. Choong-hyun Kim\nLadies and Gentlemen:\nYou are considering a possible negotiated transaction (the "Transaction") with Superior Essex Inc. (collectively, with its affiliates,\nsubsidiaries, divisions and its and their predecessors, the "Company."). In connection therewith, the Company is willing to provide you with certain\nnon-public information concerning the Company. You acknowledge that certain of this information is proprietary to the Company and may include\ntrade secrets or other business information the disclosure of which could harm the Company. In consideration of the foregoing, you agree, and you\nagree to cause your directors, officers, employees, agents, advisors (including attorneys, accountants, investment bankers, consultants and any\nrepresentatives of such advisors), potential debt or equity financing sources (provided that such equity financing sources are limited to passive\ninstitutional investors who have executed a separate letter agreement with the Company substantially in the form of this letter agreement\n(a\n"Permitted Equity Financing Source")), representatives and affiliates (collectively, "Representatives"), to treat any and all information concerning\nthe Company that is furnished to you or your Representatives (regardless of the manner in which it is furnished) now or in the future by or on behalf\nof the Company, together with any notes, analyses, compilations, studies, interpretations, documents or records containing, referring, relating to,\nbased upon or derived from such information, in whole or in part (collectively, "Evaluation Material") in accordance with the provisions of this letter\nagreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term "Evaluation Material" does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in breach of this letter agreement, (ii) was available to you or any of your\nRepresentatives, or has become available to you or any of your Representatives, on a non-confidential basis from a source other than the Company\nor any of its Representatives; provided, that the source of such information was not believed by you after reasonable inquiry to be bound by\na\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information,\nor (iii) you or any of your Representatives independently developed without reference to Evaluation Material or any derivative thereof.\n2. You hereby agree that you will, and will cause your Representatives to, (a) use the Evaluation Material solely for the purpose of\nevaluating and pursuing a Transaction and not for any other purpose, (b) keep the Evaluation Material confidential and (c) not disclose any of the\nEvaluation Material in any manner whatsoever without the prior written consent of the Company or as expressly otherwise permitted by the terms\nhereof; provided, however, that you or your Representatives may disclose any of such information to your Representatives (i) who need to know\nsuch information for the sole purpose of evaluating the Transaction, (ii) who are\n1\ninformed by you of the confidential nature of such information, and (iii) who are provided with a copy of this letter agreement and agree to act in\naccordance with its terms as if they were bound hereby or are otherwise bound by a duty of confidentiality. You agree to be responsible to the\nCompany for any breach of this letter agreement by any of your Representatives.\n3. Each of the parties agree that it and its Representatives will not disclose, without the prior written consent of the other party, to any\nother\nperson that the Evaluation Material has been made available to you, that discussions or negotiations are taking or have taken\nplace\nbetween\nthe\nparties concerning the Transaction or any other transaction involving you and the Company, or any of the terms, conditions or other facts with\nrespect thereto (including the status thereof) (the "Discussion Information"), nor will you (or your Representatives) have any communications\nwhatsoever with any other potential purchaser (other than a Permitted Equity Financing Source), concerning the Transaction. The term "person"\nas\nused in this letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\n4. You agree that for a period of eighteen months following the date of this letter agreement, neither you nor any of your affiliates (as\nsuch term is defined under the Securities Exchange Act of 1934, as amended (the "ExchangeA Act")), who have been provided access to the\nEvaluation Material or have been made aware of the fact that you are or were considering a Transaction shall solicit to employ or employ (a) any\nnow or then current employee of the Company who has participated in discussions contemplated by this letter agreement, (b) any officer of the\nCompany as of the date hereof or (c) any now or then current employee who became known to you in connection with your evaluation of the\nTransaction; provided, however, that the foregoing shall not prevent you from (A) making general public solicitations or advertisements in the\nordinary course of business not targeted directly or indirectly at employees or officers of the Company or (B) responding to any person who contacts\nyou or your affiliates regarding his or her own employment with you or any of your affiliates on his or her own initiative without any direct\nsolicitation by you or any of your affiliates other than any generalized search or ordinary course practice referred to in clause (A) above.\n5. You agree that, for a period ending two years from the date hereof (the "Standstill Period"), neither any Covered Party (as defined\nbelow) nor anyone authorized to act on behalf of any such Covered Party will, directly or indirectly, alone or in concert with others, unless in each\ncase specifically requested in writing to do so by the Company (a) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, ownership\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 promulgated under the Exchange Act) of more than 1% of any class of\nvoting securities (including securities convertible into more than 1% of any such class of voting securities) ("Voting Securities") issued by the\nCompany or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company's consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the Company, (b) enter, agree to enter, propose, seek or offer to enter\ninto or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or any of\nits subsidiaries or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company's consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the\n2\nCompany, (c) make, or in any way participate or engage in, any "solicitation" of "proxies" (as such terms are used under the Exchange Act) with\nrespect to the Voting Securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving or\nwithholding of proxies with respect to, any Voting Securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control\n(whether through a "group", as such term is used in Rule 13d-5 promulgated under the Exchange Act, or otherwise) the management, board of\ndirectors, policies or affairs of the Company or any of its subsidiaries, (e) make any request to waive or amend any provision of this paragraph\n(including this clause), (f) take any action that would reasonably be expected to require the Company to make an announcement to the holders of\nits\nsecurities regarding the possibility of a business combination, merger or other type of transaction described in this paragraph with you and/or your\naffiliates (provided that, taking any action to comply with the requirements under applicable law, regulation or legal process (including, but not\nlimited to, rules or regulations of any securities exchange or similar regulatory organization) permitted under Section 6 below shall not be deemed\nto\nbe prohibited by this clause (f)), (g) form, join or in any way participate in a group or act jointly or in concert with others in connection with any of\nthe foregoing, (h) disclose to any person other than your Representatives any intention, plan or arrangement inconsistent with, or prohibited by,\nany\nof the foregoing, or (i) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons\nto\ndo any of the foregoing. Notwithstanding the foregoing (other than clause (f) above), nothing in this letter agreement shall prohibit you from making\na one-time non-public proposal to the Company's board of directors promptly following the completion of the initial due diligence and the meeting\nwith the management (provided that you may make an additional non-public proposal should the Company provide the notification described in the\npenultimate sentence of the next paragraph and (i) such notification occurs prior to the completion of your meeting with management and (ii) you\nmake\nsuch proposal promptly following such notification). The term "Covered Party." shall mean you or any of your affiliates and any Permitted\nEquity Financing Source.\nIf the Company has in effect on the date hereof any agreement, or, during the Standstill Period, enters into or amends any agreement,\nrelating to the provision of non-public information to a person or group in connection with a possible acquisition by such person or group of more\nthan 50% of the Company's Voting Securities through a merger, business combination or other extraordinary transaction (any of the foregoing,\na\n"Business Combination") and such agreement (a "Third Party Agreement") includes a shorter time period than the Standstill Period with respect to\nrestrictions on such other party's acquisitions of the Company's shares, then the Standstill Period set forth in the preceding paragraph shall expire\nupon the expiration of such shorter time period commencing from the date of this letter agreement. In such event, the Company agrees to notify\nyou\npromptly following the earlier expiration of your Standstill Period that the restrictions set forth in the preceding paragraph are no longer applicable\nto\nyou. If the board of directors of the Company is scheduled to meet prior to May 6, 2008 to consider a bona fide proposalfrom a third party with\nrespect to a Business Combination, the Company shal provide you with notice of such meeting not less than one New York business day prior to\nsuch meeting (provided that such notice shall be limited to the fact that the board is considering a bona fide proposal with respect to a Business\nCombination and shall not include the identity of the third party or any proposed term of the Business Combination or any other\n3\ninformation). Any notice required under the immediately preceding sentence shall be made by telephone to Choong-hyun Kim at +82-2-2189-9075\nand in writing by electronic and facsimile transmission (with a copy of such electronic and facsimile transaction to your advisors, Cleary Gottlieb\nSteen & Hamilton LLP (Attention: Victor I. Lewkow (vlewkow@cgsh.com) and Sang Jin Han (shan@cgsh.com); facsimile number: (212) 225-\n3999) and Macquarie Capital (USA) Inc. (Attention: Charles W. Mills (charles.mills@macquarie.com); facsimile number: (404) 815-3430).\n6.\nIn\nthe event that (a) you or any of your Representatives are required to disclose any of the Evaluation Material\nor\n(b)\neither\nparty\nor\nany of its Representatives are required to disclose any of the Discussion Information, in each case, by applicable law, regulation or legal process\n(including, but not limited to, rules or regulations of any securities exchange or similar self-regulatory organization (including by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process)), the disclosing party will promptly\nnotify the other party by telephone (in the case of the Company, Barbara Blackford at (404) 580-3210, David Aldridge at (404) 725-7630 and Justin\nDeedy at (770) 335-4538, and, in the case of you, Choong-hyun Kim at +82-2-2189-9075 and in writing by electronic and facsimile transmission so\nthat the other party may seek a protective order or other appropriate remedy or waive compliance with the applicable provisions of this letter\nagreement by the disclosing party or such of its Representatives (it being understood that, in the case of (b) above, once the disclosing party has\nnotified the other party as provided above, nothing herein shall be deemed to prevent the disclosing party from complying with such requirement in a\ntimely manner). Nothing herein shall be deemed to prevent you or your Representatives, as the case may be, from honoring a subpoena that seeks\ndiscovery of the Evaluation Material or prevent either party or its Representatives from honoring a subpoena that seeks discovery of Discussion\nInformation if (i) a motion for a protective order, motion to quash and/or other motion filed to prevent the production or disclosure of the Evaluation\nMaterial or Discussion Information, as the case may be, has been denied or is not made; provided, however, that you disclose only that portion of the\nEvaluation Material and either party may disclose only that portion of the Discussion Information which such party's outside legal counsel advises is\nlegally required and that such party exercises all reasonable best efforts to preserve the confidentiality of the remainder of the Evaluation Material or\nDiscussion Information, as the case may be; or (ii) the Company consents in writing to having the Evaluation Material or the other party consents\nin\nwriting to having the Discussion Information, as the case may be, produced or disclosed pursuant to the subpoena. In no event will you or any of\nyour\nRepresentatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the Evaluation Material\nor\nDiscussion Information or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material or Discussion\nInformation.\n7. If you determine not to proceed with the Transaction, you will promptly notify the Company of that decision In that case, or at any\ntime after May 6, 2008 upon the written request of the Company for any reason, you will either (i) promptly destroy all copies of the Evaluation\nMaterial in your or your Representatives' possession or (ii) promptly deliver to the Company at your own expense all remaining copies of\nthe\nEvaluation Material in your or your Representatives' possession, except in either case you may retain such copies as required by applicable law\nor\nregulation. In addition, you agree promptly to certify in writing to the\n4\nCompany that you have complied with your obligations under this paragraph. Notwithstanding the return or destruction of the Evaluation Material,\nyou and your Representatives will continue to be bound by your and their obligations hereunder and any copy of the Evaluation Material permitted\nhereunder to be retained will remain subject to this letter agreement for so long as such Evaluation Material is retained.\n8. You acknowledge that none of the Company or any of its Representatives makes any representation or warranty, express or implied,\nas\nto\nthe\naccuracy\nor\ncompleteness\nof\nthe\nEvaluation\nMaterial.\nNone\nof\nthe\nCompany\nor\nany\nof\nits\nRepresentatives\nshall\nhave\nany\nliability\nor\nobligation\nto you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties that are made in a final binding written definitive agreement regarding the Transaction between the\nCompany and you (a "Definitive Agreement"), when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this letter agreement, the term "Definitive Agreement" does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or oral acceptance of any offer or bid made by you.\n9. Each party understands and agrees that no contract or agreement (or agreement to agree) providing for any Transaction between you\nand the Company shall be deemed to exist unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction unless\nand until the Parties shall have entered into a Definitive Agreement. The parties also agree that unless and until a Definitive Agreement has been\nexecuted and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction\nby virtue of this letter agreement or any other communication except, in the case of this letter agreement, for the matters specifically agreed to\nherein. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction, terminate discussions and negotiations with you, or refuse to provide any further access to\nEvaluation Material. Neither this paragraph nor any other provision in this letter agreement can be waived or amended except by explicit written\nconsent of each party hereto. Any attempted waiver or modification in violation of this provision shall be void.\n10. It is understood and agreed that no failure or delay by the Company or you in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. Each of the parties acknowledges that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nother party or any of its Representatives and consents to a court of competent jurisdiction entering an order finding that the Company or you, as\napplicable, has been irreparably harmed as a result of any such breach and to the granting of injunctive relief without proof of actual damages as a\nremedy for any such breach Such remedies shall not be deemed to be the exclusive remedies for a breach by a party\n5\nor its Representatives of this letter agreement but shall be in addition to all other remedies available at law or equity. Each of the parties agrees\nto\nwaive, and to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy.\n12. This letter agreement and all disputes or controversies arising out of or related to this letter agreement shall be governed by and\nconstrued in accordance with the internal laws of the State of New York, without reference to any conflicts of law principles which would result\nin\nthe application of the laws of another jurisdiction.\n13. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork and of the United States of America located in the Borough of Manhattan in the City of New York for any actions, suits or proceedings arising\nout of or relating to this letter agreement or the Transaction and agrees (i) not to commence any action, suit or proceeding relating thereto except in\nsuch courts, and (ii) to waive any defenses as to personal jurisdiction of such courts over such party. We agree that service of any process, summons,\nnotice\nor document by facsimile transmission to (770) 657-6479, Attention: Barbara Blackford, (with copy by U.S. registered mail to us at the\naddress set forth above) shall be effective service of process for any action, suit or proceeding brought against us in any such court. You hereby\nirrevocably designate CT Corporation System (in such capacity, the "process agent"), with an office at 111 Eighth Avenue New York, NY 10011,\nas\nyour designee, appointee and agent to receive, for and on your behalf service of process in such jurisdiction in any legal action or proceedings with\nrespect to this letter agreement or the Transaction, and such service shall be deemed complete upon delivery thereof to the process agent; provided\nthat in the case of any such service upon the process agent, we shall also deliver a copy thereof to you by facsimile transmission at +82-2-2189-9129,\nAttention: Choong-hyun Kim (with a copy to Cleary Gottlieb Steen & Hamilton LLP, Attention: Victor I. Lewkow and Sang Jin Han, (212) 225-\n3999. You shall take all such action as may be necessary to continue said appointment in full force and effect or to appoint another agent so that you\nwill at all times have an agent for service of process for the above purposes in New York, New York. Each party hereby irrevocably and\nunconditionally (x) waives any objection to the laying of venue of any action, suit or proceeding arising out of this letter agreement in the courts\nof\nthe State of New York or the United States of America located in the Borough of Manhattan in the City of New York, (y) waives and agrees not\nto\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum, and\n(z) waives, and agrees not to assert in any such court any claim that it or its property is exempt or immune from jurisdiction of any such court\nor\nfrom any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution\nof judgment, execution of judgment or otherwise).\n14. Except as provided in Sections, 5, 6 and 13, any notice or other communication hereunder shall be sufficient if in writing, and sent by\nfacsimile or electronic transmission to, in the case of the Company, (770) 657-6479, Attention: Barbara Blackford, email:\nbarbara.blackford@spsx.com, or, in your case, +82-2-2189-9129, Attention: Choong-hyun Kim, email: kimch@lscable.com.\n6\n15. The provisions of this letter agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This letter agreement represents the entire understanding with respect to the matters contained herein and supersedes all prior\nagreements, arrangements, and understandings between the parties with respect to such matters.\n17. This letter agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n18. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company.\n19. Except as otherwise provided in paragraphs 4 and 5 hereof, the term of this letter agreement shall be three years (the "Term"), unless\notherwise agreed in writing by the mutual agreement between you and the Company. If the Company has in effect on the date hereof any Third Party\nAgreement, or, during the Term, enters into or amends any Third Party Agreement, and such Third Party Agreement includes a shorter time period\nthan\nthe Term with respect to the requirement that the non-public information provided by the Company under such Third Party Agreement be kept\nconfidential by the recipient of such information thereunder, then the Term set forth in the preceding sentence shall expire upon the expiration of\nsuch shorter time period commencing from the date of this letter agreement (provided that paragraph 5 will remain in effect for the Standstill Period,\nsubject to modification in accordance with that paragraph). In such event, the Company agrees to notify you promptly following the earlier\nexpiration of your Term of such expiration.\n[Remainder of page intentionally left blank]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nSUPERIOR ESSEX INC.\nBy:\n/s/ David S. Aldridge\nName: David S. Aldridge\nTitle: EVP & CFO\nAccepted and agreed as of the date first written above:\nLS CABLE LTD.\nBy:\n/s/ Choong-hyun Kim\nName: Choong-hyun Kim\nTitle: Senior Vice President	EX-99.(D)(2)(A) 18 dex99d2a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)(A)\nApril 22, 2008\nLS Cable Ltd.\nASEM Tower, (19-20F) 159\nSamsung-dong, Gangnam-gu\nSeoul 135-090\nKorea\nAttention: Mr. Choong-hyun Kim\nLadies and Gentlemen:\nYou are considering a possible negotiated transaction (the “Transaction”) with Superior Essex Inc. (collectively, with its affiliates,\nsubsidiaries, divisions and its and their predecessors, the “Company”). In connection therewith, the Company is willing to provide you with certain\nnon-public information concerning the Company. You acknowledge that certain of this information is proprietary to the Company and may include\ntrade secrets or other business information the disclosure of which could harm the Company. In consideration of the foregoing, you agree, and you\nagree to cause your directors, officers, employees, agents, advisors (including attorneys, accountants, investment bankers, consultants and any\nrepresentatives of such advisors), potential debt or equity financing sources (provided that such equity financing sources are limited to passive\ninstitutional investors who have executed a separate letter agreement with the Company substantially in the form of this letter agreement (a\n“Permitted Equity Financing Source”)), representatives and affiliates (collectively, “Representatives”), to treat any and all information concerning\nthe Company that is furnished to you or your Representatives (regardless of the manner in which it is furnished) now or in the future by or on behalf\nof the Company, together with any notes, analyses, compilations, studies, interpretations, documents or records containing, referring, relating to,\nbased upon or derived from such information, in whole or in part (collectively, “Evaluation Material”) in accordance with the provisions of this letter\nagreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in breach of this letter agreement, (ii) was available to you or any of your\nRepresentatives, or has become available to you or any of your Representatives, on a non-confidential basis from a source other than the Company\nor any of its Representatives; provided, that the source of such information was not believed by you after reasonable inquiry to be bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information,\nor (iii) you or any of your Representatives independently developed without reference to Evaluation Material or any derivative thereof.\n2. You hereby agree that you will, and will cause your Representatives to, (a) use the Evaluation Material solely for the purpose of\nevaluating and pursuing a Transaction and not for any other purpose, (b) keep the Evaluation Material confidential and (c) not disclose any of the\nEvaluation Material in any manner whatsoever without the prior written consent of the Company or as expressly otherwise permitted by the terms\nhereof; provided, however, that you or your Representatives may disclose any of such information to your Representatives (i) who need to know\nsuch information for the sole purpose of evaluating the Transaction, (ii) who are\n1\ninformed by you of the confidential nature of such information, and (iii) who are provided with a copy of this letter agreement and agree to act in\naccordance with its terms as if they were bound hereby or are otherwise bound by a duty of confidentiality. You agree to be responsible to the\nCompany for any breach of this letter agreement by any of your Representatives.\n3. Each of the parties agree that it and its Representatives will not disclose, without the prior written consent of the other party, to any\nother person that the Evaluation Material has been made available to you, that discussions or negotiations are taking or have taken place between the\nparties concerning the Transaction or any other transaction involving you and the Company, or any of the terms, conditions or other facts with\nrespect thereto (including the status thereof) (the “Discussion Information”), nor will you (or your Representatives) have any communications\nwhatsoever with any other potential purchaser (other than a Permitted Equity Financing Source), concerning the Transaction. The term “person” as\nused in this letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\n4. You agree that for a period of eighteen months following the date of this letter agreement, neither you nor any of your affiliates (as\nsuch term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), who have been provided access to the\nEvaluation Material or have been made aware of the fact that you are or were considering a Transaction shall solicit to employ or employ (a) any\nnow or then current employee of the Company who has participated in discussions contemplated by this letter agreement, (b) any officer of the\nCompany as of the date hereof or (c) any now or then current employee who became known to you in connection with your evaluation of the\nTransaction; provided, however, that the foregoing shall not prevent you from (A) making general public solicitations or advertisements in the\nordinary course of business not targeted directly or indirectly at employees or officers of the Company or (B) responding to any person who contacts\nyou or your affiliates regarding his or her own employment with you or any of your affiliates on his or her own initiative without any direct\nsolicitation by you or any of your affiliates other than any generalized search or ordinary course practice referred to in clause (A) above.\n5. You agree that, for a period ending two years from the date hereof (the “Standstill Period”), neither any Covered Party (as defined\nbelow) nor anyone authorized to act on behalf of any such Covered Party will, directly or indirectly, alone or in concert with others, unless in each\ncase specifically requested in writing to do so by the Company (a) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, ownership\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 promulgated under the Exchange Act) of more than 1% of any class of\nvoting securities (including securities convertible into more than 1% of any such class of voting securities) (“Voting Securities”) issued by the\nCompany or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company’s consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the Company, (b) enter, agree to enter, propose, seek or offer to enter\ninto or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or any of\nits subsidiaries or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company’s consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the\n2\nCompany, (c) make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) with\nrespect to the Voting Securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving or\nwithholding of proxies with respect to, any Voting Securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control\n(whether through a “group”, as such term is used in Rule 13d-5 promulgated under the Exchange Act, or otherwise) the management, board of\ndirectors, policies or affairs of the Company or any of its subsidiaries, (e) make any request to waive or amend any provision of this paragraph\n(including this clause), (f) take any action that would reasonably be expected to require the Company to make an announcement to the holders of its\nsecurities regarding the possibility of a business combination, merger or other type of transaction described in this paragraph with you and/or your\naffiliates (provided that, taking any action to comply with the requirements under applicable law, regulation or legal process (including, but not\nlimited to, rules or regulations of any securities exchange or similar regulatory organization) permitted under Section 6 below shall not be deemed to\nbe prohibited by this clause (f)), (g) form, join or in any way participate in a group or act jointly or in concert with others in connection with any of\nthe foregoing, (h) disclose to any person other than your Representatives any intention, plan or arrangement inconsistent with, or prohibited by, any\nof the foregoing, or (i) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons to\ndo any of the foregoing. Notwithstanding the foregoing (other than clause (f) above), nothing in this letter agreement shall prohibit you from making\na one-time non-public proposal to the Company’s board of directors promptly following the completion of the initial due diligence and the meeting\nwith the management (provided that you may make an additional non-public proposal should the Company provide the notification described in the\npenultimate sentence of the next paragraph and (i) such notification occurs prior to the completion of your meeting with management and (ii) you\nmake such proposal promptly following such notification). The term “Covered Party” shall mean you or any of your affiliates and any Permitted\nEquity Financing Source.\nIf the Company has in effect on the date hereof any agreement, or, during the Standstill Period, enters into or amends any agreement,\nrelating to the provision of non-public information to a person or group in connection with a possible acquisition by such person or group of more\nthan 50% of the Company’s Voting Securities through a merger, business combination or other extraordinary transaction (any of the foregoing, a\n“Business Combination”) and such agreement (a “Third Party Agreement”) includes a shorter time period than the Standstill Period with respect to\nrestrictions on such other party’s acquisitions of the Company’s shares, then the Standstill Period set forth in the preceding paragraph shall expire\nupon the expiration of such shorter time period commencing from the date of this letter agreement. In such event, the Company agrees to notify you\npromptly following the earlier expiration of your Standstill Period that the restrictions set forth in the preceding paragraph are no longer applicable to\nyou. If the board of directors of the Company is scheduled to meet prior to May 6, 2008 to consider a bona fide proposalfrom a third party with\nrespect to a Business Combination, the Company shall provide you with notice of such meeting not less than one New York business day prior to\nsuch meeting (provided that such notice shall be limited to the fact that the board is considering a bona fide proposal with respect to a Business\nCombination and shall not include the identity of the third party or any proposed term of the Business Combination or any other\n3\ninformation). Any notice required under the immediately preceding sentence shall be made by telephone to Choong-hyun Kim at +82-2-2189-9075\nand in writing by electronic and facsimile transmission (with a copy of such electronic and facsimile transaction to your advisors, Cleary Gottlieb\nSteen & Hamilton LLP (Attention: Victor I. Lewkow (vlewkow@cgsh.com) and Sang Jin Han (shan@cgsh.com); facsimile number: (212) 225-\n3999) and Macquarie Capital (USA) Inc. (Attention: Charles W. Mills (charles.mills@macquarie.com); facsimile number: (404) 815-3430).\n6. In the event that (a) you or any of your Representatives are required to disclose any of the Evaluation Material or (b) either party or\nany of its Representatives are required to disclose any of the Discussion Information, in each case, by applicable law, regulation or legal process\n(including, but not limited to, rules or regulations of any securities exchange or similar self-regulatory organization (including by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process)), the disclosing party will promptly\nnotify the other party by telephone (in the case of the Company, Barbara Blackford at (404) 580-3210, David Aldridge at (404) 725-7630 and Justin\nDeedy at (770) 335-4538, and, in the case of you, Choong-hyun Kim at +82-2 -2189-9075 and in writing by electronic and facsimile transmission so\nthat the other party may seek a protective order or other appropriate remedy or waive compliance with the applicable provisions of this letter\nagreement by the disclosing party or such of its Representatives (it being understood that, in the case of (b) above, once the disclosing party has\nnotified the other party as provided above, nothing herein shall be deemed to prevent the disclosing party from complying with such requirement in a\ntimely manner). Nothing herein shall be deemed to prevent you or your Representatives, as the case may be, from honoring a subpoena that seeks\ndiscovery of the Evaluation Material or prevent either party or its Representatives from honoring a subpoena that seeks discovery of Discussion\nInformation if (i) a motion for a protective order, motion to quash and/or other motion filed to prevent the production or disclosure of the Evaluation\nMaterial or Discussion Information, as the case may be, has been denied or is not made; provided, however, that you disclose only that portion of the\nEvaluation Material and either party may disclose only that portion of the Discussion Information which such party’s outside legal counsel advises is\nlegally required and that such party exercises all reasonable best efforts to preserve the confidentiality of the remainder of the Evaluation Material or\nDiscussion Information, as the case may be; or (ii) the Company consents in writing to having the Evaluation Material or the other party consents in\nwriting to having the Discussion Information, as the case may be, produced or disclosed pursuant to the subpoena. In no event will you or any of\nyour Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the Evaluation Material\nor Discussion Information or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material or Discussion\nInformation.\n7. If you determine not to proceed with the Transaction, you will promptly notify the Company of that decision. In that case, or at any\ntime after May 6, 2008 upon the written request of the Company for any reason, you will either (i) promptly destroy all copies of the Evaluation\nMaterial in your or your Representatives’ possession or (ii) promptly deliver to the Company at your own expense all remaining copies of the\nEvaluation Material in your or your Representatives’ possession, except in either case you may retain such copies as required by applicable law or\nregulation. In addition, you agree promptly to certify in writing to the\n4\nCompany that you have complied with your obligations under this paragraph. Notwithstanding the return or destruction of the Evaluation Material,\nyou and your Representatives will continue to be bound by your and their obligations hereunder and any copy of the Evaluation Material permitted\nhereunder to be retained will remain subject to this letter agreement for so long as such Evaluation Material is retained.\n8. You acknowledge that none of the Company or any of its Representatives makes any representation or warranty, express or implied, as\nto the accuracy or completeness of the Evaluation Material. None of the Company or any of its Representatives shall have any liability or obligation\nto you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties that are made in a final binding written definitive agreement regarding the Transaction between the\nCompany and you (a “Definitive Agreement”), when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or oral acceptance of any offer or bid made by you.\n9. Each party understands and agrees that no contract or agreement (or agreement to agree) providing for any Transaction between you\nand the Company shall be deemed to exist unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction unless\nand until the Parties shall have entered into a Definitive Agreement. The parties also agree that unless and until a Definitive Agreement has been\nexecuted and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction\nby virtue of this letter agreement or any other communication except, in the case of this letter agreement, for the matters specifically agreed to\nherein. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction, terminate discussions and negotiations with you, or refuse to provide any further access to\nEvaluation Material. Neither this paragraph nor any other provision in this letter agreement can be waived or amended except by explicit written\nconsent of each party hereto. Any attempted waiver or modification in violation of this provision shall be void.\n10. It is understood and agreed that no failure or delay by the Company or you in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. Each of the parties acknowledges that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nother party or any of its Representatives and consents to a court of competent jurisdiction entering an order finding that the Company or you, as\napplicable, has been irreparably harmed as a result of any such breach and to the granting of injunctive relief without proof of actual damages as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by a party\n5\nor its Representatives of this letter agreement but shall be in addition to all other remedies available at law or equity. Each of the parties agrees to\nwaive, and to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy.\n12. This letter agreement and all disputes or controversies arising out of or related to this letter agreement shall be governed by and\nconstrued in accordance with the internal laws of the State of New York, without reference to any conflicts of law principles which would result in\nthe application of the laws of another jurisdiction.\n13. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork and of the United States of America located in the Borough of Manhattan in the City of New York for any actions, suits or proceedings arising\nout of or relating to this letter agreement or the Transaction and agrees (i) not to commence any action, suit or proceeding relating thereto except in\nsuch courts, and (ii) to waive any defenses as to personal jurisdiction of such courts over such party. We agree that service of any process, summons,\nnotice or document by facsimile transmission to (770) 657-6479, Attention: Barbara Blackford, (with copy by U.S . registered mail to us at the\naddress set forth above) shall be effective service of process for any action, suit or proceeding brought against us in any such court. You hereby\nirrevocably designate CT Corporation System (in such capacity, the “process agent”), with an office at 111 Eighth Avenue New York, NY 10011, as\nyour designee, appointee and agent to receive, for and on your behalf service of process in such jurisdiction in any legal action or proceedings with\nrespect to this letter agreement or the Transaction, and such service shall be deemed complete upon delivery thereof to the process agent; provided\nthat in the case of any such service upon the process agent, we shall also deliver a copy thereof to you by facsimile transmission at +82-2 -2189 -9129,\nAttention: Choong-hyun Kim (with a copy to Cleary Gottlieb Steen & Hamilton LLP, Attention: Victor I. Lewkow and Sang Jin Han, (212) 225-\n3999. You shall take all such action as may be necessary to continue said appointment in full force and effect or to appoint another agent so that you\nwill at all times have an agent for service of process for the above purposes in New York, New York. Each party hereby irrevocably and\nunconditionally (x) waives any objection to the laying of venue of any action, suit or proceeding arising out of this letter agreement in the courts of\nthe State of New York or the United States of America located in the Borough of Manhattan in the City of New York, (y) waives and agrees not to\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum, and\n(z) waives, and agrees not to assert in any such court any claim that it or its property is exempt or immune from jurisdiction of any such court or\nfrom any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution\nof judgment, execution of judgment or otherwise).\n14. Except as provided in Sections, 5, 6 and 13, any notice or other communication hereunder shall be sufficient if in writing, and sent by\nfacsimile or electronic transmission to, in the case of the Company, (770) 657-6479, Attention: Barbara Blackford, email:\nbarbara.blackford@spsx.com, or, in your case, +82-2-2189-9129, Attention: Choong-hyun Kim, email: kimch@lscable.com .\n6\n15. The provisions of this letter agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This letter agreement represents the entire understanding with respect to the matters contained herein and supersedes all prior\nagreements, arrangements, and understandings between the parties with respect to such matters.\n17. This letter agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n18. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company.\n19. Except as otherwise provided in paragraphs 4 and 5 hereof, the term of this letter agreement shall be three years (the “Term”), unless\notherwise agreed in writing by the mutual agreement between you and the Company. If the Company has in effect on the date hereof any Third Party\nAgreement, or, during the Term, enters into or amends any Third Party Agreement, and such Third Party Agreement includes a shorter time period\nthan the Term with respect to the requirement that the non-public information provided by the Company under such Third Party Agreement be kept\nconfidential by the recipient of such information thereunder, then the Term set forth in the preceding sentence shall expire upon the expiration of\nsuch shorter time period commencing from the date of this letter agreement (provided that paragraph 5 will remain in effect for the Standstill Period,\nsubject to modification in accordance with that paragraph). In such event, the Company agrees to notify you promptly following the earlier\nexpiration of your Term of such expiration.\n[Remainder of page intentionally left blank]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nSUPERIOR ESSEX INC.\nBy: /s/ David S. Aldridge\nName: David S. Aldridge\nTitle: EVP & CFO\nAccepted and agreed as of the date first written above:\nLS CABLE LTD.\nBy: /s/ Choong-hyun Kim\nName: Choong-hyun Kim\nTitle: Senior Vice President
4211392caaa68235bda27fe40fcf9212.pdf	effective_date jurisdiction party term	EX-10.35 9 dex1035.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.35\nNON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT AND\nCONFIDENTIALITY AGREEMENT\n[name of employee]:\nYRC Worldwide Inc., a Delaware corporation (“YRCW”), has determined that you are important to the operation of the business of YRCW\nand its subsidiaries (collectively, the “Company”). As a key employee, in the course of your work, you will, or have, become aware of information of\na confidential nature pertaining to the business of the Company. The Company maintains policies and procedures with respect to the use and the\ndissemination of confidential information. Your employment creates a relationship of confidence and trust between you and the Company with\nrespect to any information applicable to the business of the Company which may be, or has been, made known to you by the Company or learned by\nyou in the course of your work. You understand that you have an obligation to preserve the confidentiality of this information and use it only for the\npurpose for which it was obtained. To further protect this confidential information and to prevent you from using this information and your skills\ngained in the course of your employment with the Company in competition with the Company, YRCW desires to provide you Consideration (defined\nbelow) to obtain your agreement not to compete with the Company and to abide by the other covenants in this agreement as described in the terms of\nthis agreement below.\nIn exchange for the payments of Consideration to you and other good and valuable consideration, the receipt and adequacy of which are hereby\nacknowledged, you understand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you\nexpressly agree that:\n1. Non-Competition. You acknowledge that the agreements and covenants contained in this Section 1 are essential to protect the value of the\nbusiness and assets of the Company and by your prior and continued employment with the Company you have obtained, and will continue to\nobtain, valuable confidential information, knowledge, contacts and experience, and there is a substantial probability that this confidential\ninformation, knowledge, contacts and experience could be used to the substantial advantage of a competitor of the Company to the Company’s\nsubstantial detriment. Therefore, you agree that so long as the Company employs you and during the Restricted Period (defined below), you\nshall not, and shall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of the Company),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of the Company (the “Business”) in any geographic region for which you had direct or indirect responsibility on behalf of the\nCompany or in any geographic region for which you had confidential information of the Company. It shall not be a violation of Sections 1 or 2\nif you become the registered or beneficial owner of up to 5% of any class of the capital stock of a business that is either registered under the\nSecurities Exchange Act of 1934, as amended, or is traded on any foreign stock exchange or if you become employed by or maintain an\ninterest in a law, accounting, consulting or financial advisory firm so long as you do not personally provide advice or services to a competitor\nof the Company as an employee or interest owner during the Restricted Period. For the purposes of this agreement, the “Restricted Period”\nmeans the period commencing as of the day of your termination of employment with the Company, whether with or without Cause and\nwhether before or after receipt of the Consideration (defined below), and ending three months following termination of your employment with\nthe Company; provided that the Restricted Period may be extended to either six or nine months following termination of your employment\nwith YRCW and any of its subsidiaries in accordance with Section 5.\n2. Non-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of the Company):\na.\ncause, solicit, induce or encourage any employees, consultants or contractors of the Company to leave their respective\nemployment or service with the Company,\nb.\nsolicit the employment of, or hire, employ or otherwise engage any employee of the Company; provided that it shall not be a\nviolation of this Section 2(b) for an employer that you work for or for a firm in which you maintain an interest to have hired an\nemployee of the Company without your knowledge or participation,\nc.\ncause, induce, or encourage any actual or prospective client, customer, supplier or licensor of the Company (including any\nexisting or former customers of the Company) to terminate or modify any actual or prospective business relationship with the\nCompany, and\nd.\ndevelop a business relationship with any actual or prospective client, customer, supplier or licensor to cause, induce, or encourage\nsuch individual to become a client, customer, supplier, or licensor of any business in which you are engaged that is competitive\nwith the Business.\nThe restrictions relating to actual or prospective clients, customers, suppliers or licensors in this Section 2 apply only to:\nA.\nthose actual or prospective clients, customers, suppliers or licensors with whom you had contact on behalf of the Company during\nthe last 12 months of your employment with the Company, or\nB.\nany of the Company’s actual or prospective clients, customers, suppliers or licensors about whom you had any confidential\ninformation during the last 12 months of your employment with the Company.\nIn no event shall it be a violation of this Section 2 to engage in solicitations incidental to general advertising or other general solicitation in the\nordinary course not specifically targeted at such persons or to employ any person not solicited in violation of this agreement.\n3. Non-Disparagement. You agree that, during your employment with the Company or at any time during the Restricted Period, you shall not\nmake any public statement that is materially disparaging of the business of the Company, or to the business reputation of any of the executive\nofficers of the Company or any of the employees of the Company who are known to you to be employees of the Company at the time of any\nsuch public statement. Your obligations under this Section 3 shall not apply to disclosures required by applicable law, regulation, or order of a\ncourt or governmental agency.\n4. Confidentiality. All information related to the business of the Company that may be obtained by you from any source as a result of your\nemployment shall be considered as confidential. Materials contained in the Company’s customers’ files should always be regarded as\nconfidential. You should always maintain appropriate administrative, technical and physical safeguards over records in your possession to\nprevent unauthorized access. Information regarding strategic or tactical business plans; undisclosed business, operational or financial data;\nideas, processes, methods, techniques, systems, non-public information, models, devices, programs, computer software or related information;\ndocuments relating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending,\nor threatened legal dispute; pricing or cost data; the identity, reports or analysis of business prospects; business transactions that are\ncontemplated or planned; research data; personnel information or data; identities of users or purchasers of the Company’s products or services;\nor any business methods, operations, or results of the Company may not be disclosed to competitors, to the public, or to any person, nor can\nthe preceding information be otherwise used except as your duties at the Company may require or with the prior written approval of an\nauthorized officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software or other\nstrategies which you develop in the course of performing responsibilities or using Company equipment or facilities are the property of the\nCompany. Upon termination of your employment with the Company, you are required to deliver to the Company all documents, recordings and\nother tangible records (including tapes, discs or other similar media) that contain or are derived from the Company’s confidential information.\nConfidential information of the Company does not include information that:\na.\nbecomes generally available to the public other than as a result of your disclosure in violation of this agreement,\nb.\nbecomes available to you on a non-confidential basis from a source other than the Company, provided that you do not know the\nsource to be subject to another confidentiality agreement with, another obligation of secrecy to, or a fiduciary duty of\nconfidentiality to, the Company with respect to the information; or\nc.\nyou independently develop without use of confidential information of the Company.\nIf you have acted in the capacity of legal counsel to the Company, it shall not be a violation of this Section 4 if you maintain one copy of any\nof the legal files with respect to the advice that you provided while the Company employed you, subject to the code of conduct or ethics of the\nstate in which you are licensed for the purpose of assisting the Company with questions regarding those files after your employment.\n5. Consideration.\na.\nInitial Consideration. Subject to the terms and restrictions set forth in this paragraph, YRCW shall pay you an amount (the\n“Consideration”) equal to one-third of your base salary on January 2, 2010; provided, that the Company still employs you on\nJanuary 2, 2010. If your employment with the Company ends as a result of your resignation for any reason (other than your\nresignation following an event that is deemed termination for Cause as described below in this Section 5) or your termination by\nthe Company with Cause, in each case, before March 31, 2010, YRCW shall not be required to pay to you the January 2, 2010\npayment or any future payments under this agreement, and you shall return the January 2, 2010 payment. If the Company\nterminates your employment without Cause or by reason of your death or permanent and total disability before the January 2,\n2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following\nyour termination by the Company without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nb.\nFirst Extension. On April 1, 2009, the Restricted Period shall be extended from three to six months following your termination of\nemployment with the Company unless the Board of Directors of YRCW (the “Board”) votes to cancel this extension or you\nnotify the Company in writing that you have cancelled this extension, in each case, prior to April 1, 2009. If this extension is\neffected, subject to the terms and restrictions set forth in this Section 5(b), YRCW shall pay you additional Consideration in an\namount equal to one-third of your base salary on April 1, 2010; provided, that the Company still employs you on April 1, 2010. If\nyour employment with the Company ends as a result of your resignation for any reason (other than your resignation following an\nevent that is deemed termination for Cause as described below in this Section 5) or the Company terminates your employment\nwith Cause, in each case, before June 30, 2010, YRCW shall not be required to pay to you the April 1, 2010 payment or any\nfuture payments under this agreement, and you shall return the April 1, 2010 payment. If the Company terminates your\nemployment without Cause or by reason of your death or permanent and total disability before the April 1, 2010 payment is\nmade, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following your termination\nby the Company without Cause; provided, that you have not breached any applicable provision of this agreement, in which case\nthe remaining payments of the Consideration will not be made, and YRCW shall withhold payment of the remaining payments of\nthe Consideration as damages for any such breach.\nc.\nSecond Extension. If the Restricted Period has been extended pursuant to Section 5(b), then on July 1, 2009, the Restricted Period\nshall be extended again from six to nine months following your termination of employment with the Company unless the Board\nvotes to cancel this extension or you notify the Company in writing that you have cancelled this extension, in each case, prior to\nJuly 1, 2009. If this extension is effected, subject to the terms and restrictions set forth in this Section 5(c), YRCW shall pay you\nadditional Consideration in an amount equal to one-third of your base salary on July 1, 2010; provided, that the Company still\nemploys you on July 1, 2010. If your employment with the Company ends as a result of your resignation for any reason (other\nthan your resignation following an event that is deemed termination for Cause as described below in this Section 5) or your\ntermination by the Company with Cause, in each case, before September 30, 2010, YRCW shall not be required to pay to you the\nJuly 1, 2010 payment or any future payments under this agreement, and you shall return the July 1, 2010 payment. If the\nCompany terminates your employment without Cause or by reason of your death or permanent and total disability before the\nJuly 1, 2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months\nfollowing your termination by YRCW without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nYRCW shall deduct from any of the payments under this Section 5 any applicable withholding taxes under federal and state law. For the\npurposes of this agreement, you shall be considered “permanently and totally disabled” if you are unable to engage in any substantial\ngainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be\nexpected to last for a continuous period of not less than 12 months or is, by reason of any medically determinable physical or mental\nimpairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving\nincome replacement benefits for a period of not less than three months under an accident and health plan covering employees of the\nCompany. “Cause” shall mean any of the following:\na.\nyour conviction of a felony involving acts of dishonesty, fraud or moral turpitude;\nb.\nyour willful and repeated failure to perform your duties following 30 days notice of the failure and your failure to cure within the\n30-day period;\nc.\nwillful misconduct material to your employment;\nd.\nyour willful material breach of Company policies or rules of which you have been made aware following 30 days notice of the\nbreach and your failure to cure within the 30-day period;\ne.\nyour willful, material and demonstrable dishonesty related to your employment; or\nf.\ngross negligence in the performance of your job duties.\nFor purposes of this agreement, no act, or failure to act, on your part shall be deemed “willful” or engaged in “willfully” if it was due primarily\nto an error in judgment or negligence, but shall be deemed “willful” or engaged in “willfully” only if done, or omitted to be done, by you not in\ngood faith and without reasonable belief that your action or omission was in the best interest of the Company.\nIf you resign following one or more of the following events, the Company shall be deemed to have terminated you without Cause for the\npurposes of this agreement:\na.\nthe Company relocates your principal place of performance of your duties and responsibilities (“employment domicile”) to a\nlocation more than 50 miles from the your current employment domicile;\nb.\nthe Company requires you to travel in excess more than 15% more than you traveled for the business of the Company in the\npreceding 12 months (counting each day or partial day of travel outside of the 100 mile radius of your current employment\ndomicile as a travel day); or\nc.\nthe Company reduces your base salary, bonus opportunity or long-term incentive opportunity other than reductions that are\napplicable to all similarly situated executives.\n6. Reasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\nagreed upon arbitration panel or court of competent jurisdiction may reform those obligations to the extent necessary to enforce them under\napplicable law. You further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and\nirreparable damage to the Company. Accordingly, you agree that upon any violation of any of these obligations and covenants:\na.\nyou are required to return all Consideration to YRCW, and\nb.\nYRCW is entitled to withhold payment of any future payments of the Consideration, to injunctive relief in any court of competent\njurisdiction (without the necessity of posting a bond or other security with respect to the injunctive relief) and to any other\nremedies it may have.\nIn addition, you agree that upon any threatened violation of any of these obligations and covenants:\na.\nYRCW is entitled to withhold payment of the Consideration until any dispute regarding your threatened violation is resolved, and\nb.\nYRCW is entitled to injunctive relief in any court of competent jurisdiction to prevent the violation, without the necessity of\nposting a bond or other security with respect to the injunctive relief.\nIf you are required to return any of the Consideration pursuant to this agreement, YRCW shall use its reasonable best efforts to reverse any federal or\nstate withholding taxes made on your behalf prior to requesting the return of that portion of the Consideration from you. The provisions of this\nagreement are in addition to the provisions in any written employment agreement between the Company and you, and will not affect the\nresponsibilities or any other rights of you or the Company under those agreements. This agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or the Company may decide to terminate the employment relationship at any time for any reason.\nThis agreement is intended to meet the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and shall be\nadministered in a manner that is intended to meet those requirements and shall be construed and interpreted in accordance with such intent. To the\nextent that a payment is subject to the excise taxes that Section 409A of the Code imposes, the Company shall make the payment or defer it in a\nmanner that will meet the requirements of Section 409A of the Code, including regulations or other guidance issued with respect thereto, such that\nthe payment or deferral shall not be subject to the excise tax applicable under Section 409A of the Code.\nUnless this agreement expressly states to the contrary, references to “Sections” in this agreement mean the sections and subsections of this\nagreement, and capitalized terms that this agreement defines shall have the meanings that this agreement gives to each of them for the purposes of\nthis agreement.\nThis agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs, executors,\nassigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your employment\nwith the Company, regardless of the manner of such termination.\nEach provision of this agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to the\nextent reasonable under the circumstances. In any case, the other provisions of this agreement will not be affected.\nThis agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral or\nwritten, with regard to the subject matter hereof. This agreement is an integrated document and may not be modified or amended except in a writing\nsigned by the parties hereto or their successors in interest.\n[For Sheila K. Taylor: This agreement amends and restates YRCW’s prior agreement with you dated December 18, 2008, in its entirety.\nNotwithstanding anything in this agreement to the contrary, if you have not received Consideration of at least $159,024 (the “Prior Agreement\nAmount”) on or before July 1, 2010, you shall receive a payment, if any, equal to the excess (the “Excess”) of the Prior Agreement Amount over the\namounts paid to you on or before July 1, 2010 so long as you remain employed with the Company on July 1, 2010; provided that if the Company\nterminates you without Cause or if you die or become permanently and totally disability before the July 1, 2010 payment is made, YRCW shall pay\nto you or your estate all unpaid Consideration on the date that is six months following your termination by YRCW without Cause; provided, further,\nthat you have not breached any applicable provision of this agreement, in which case the remaining payments of the Consideration will not be made,\nand YRCW shall withhold payment of the remaining payments of the Consideration as damages for any such breach. If your employment with the\nCompany ends as a result of your resignation for any reason (other than your resignation following an event that is deemed termination for Cause as\ndescribed below in Section 5) or your termination by the Company with Cause, in each case, before July 1, 2010, YRCW shall not be required to pay\nto you the Excess Amount or any future payments under this agreement, and you shall return the payment of the Excess Amount. For the avoidance\nof doubt, the portion of the Consideration paid to you up to the Prior Agreement Amount is part of, and not in addition to, the total Consideration\nthat YRCW pays you pursuant to this agreement.]\nYRCW hereby agrees to the terms and conditions of this agreement:\nYRC Worldwide Inc.\nBy:\nName:\nTitle:\nI have signed and dated this agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis agreement.\n[employee name]\nDate:	EX-10.35 9 dex1035.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.35\nNON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT AND\nCONFIDENTIALITY AGREEMENT\n[name of employee]:\nYRC Worldwide Inc., a Delaware corporation (“YRCW?”), has determined that you are important to the operation of the business of YRCW\nand its subsidiaries (collectively, the “Company”). As a key employee, in the course of your work, you will, or have, become aware of information of\na confidential nature pertaining to the business of the Company. The Company maintains policies and procedures with respect to the use and the\ndissemination of confidential information. Your employment creates a relationship of confidence and trust between you and the Company with\nrespect to any information applicable to the business of the Company which may be, or has been, made known to you by the Company or learned by\nyou in the course of your work. You understand that you have an obligation to preserve the confidentiality of this information and use it only for the\npurpose for which it was obtained. To further protect this confidential information and to prevent you from using this information and your skills\ngained in the course of your employment with the Company in competition with the Company, YRCW desires to provide you Consideration (defined\nbelow) to obtain your agreement not to compete with the Company and to abide by the other covenants in this agreement as described in the terms of\nthis agreement below.\nIn exchange for the payments of Consideration to you and other good and valuable consideration, the receipt and adequacy of which are hereby\nacknowledged, you understand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you\nexpressly agree that:\n1.  Non-Competition. You acknowledge that the agreements and covenants contained in this Section 1 are essential to protect the value of the\nbusiness and assets of the Company and by your prior and continued employment with the Company you have obtained, and will continue to\nobtain, valuable confidential information, knowledge, contacts and experience, and there is a substantial probability that this confidential\ninformation, knowledge, contacts and experience could be used to the substantial advantage of a competitor of the Company to the Company’s\nsubstantial detriment. Therefore, you agree that so long as the Company employs you and during the Restricted Period (defined below), you\nshall not, and shall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of the Company),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of the Company (the “Business”) in any geographic region for which you had direct or indirect responsibility on behalf of the\nCompany or in any geographic region for which you had confidential information of the Company. It shall not be a violation of Sections 1 or 2\nif you become the registered or beneficial owner of up to 5% of any class of the capital stock of a business that is either registered under the\nSecurities Exchange Act of 1934, as amended, or is traded on any foreign stock exchange or if you become employed by or maintain an\ninterest in a law, accounting, consulting or financial advisory firm so long as you do not personally provide advice or services to a competitor\nof the Company as an employee or interest owner during the Restricted Period. For the purposes of this agreement, the “Restricted Period”\nmeans the period commencing as of the day of your termination of employment with the Company, whether with or without Cause and\nwhether before or after receipt of the Consideration (defined below), and ending three months following termination of your employment with\nthe Company; provided that the Restricted Period may be extended to either six or nine months following termination of your employment\nwith YRCW and any of its subsidiaries in accordance with Section 5.\n2. Non-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of the Company):\na. cause, solicit, induce or encourage any employees, consultants or contractors of the Company to leave their respective\nemployment or service with the Company,\nb. solicit the employment of, or hire, employ or otherwise engage any employee of the Company; provided that it shall not be a\nviolation of this Section 2(b) for an employer that you work for or for a firm in which you maintain an interest to have hired an\nemployee of the Company without your knowledge or participation,\nC. cause, induce, or encourage any actual or prospective client, customer, supplier or licensor of the Company (including any\nexisting or former customers of the Company) to terminate or modify any actual or prospective business relationship with the\nCompany, and\nd. develop a business relationship with any actual or prospective client, customer, supplier or licensor to cause, induce, or encourage\nsuch individual to become a client, customer, supplier, or licensor of any business in which you are engaged that is competitive\nwith the Business.\nThe restrictions relating to actual or prospective clients, customers, suppliers or licensors in this Section 2 apply only to:\nA. those actual or prospective clients, customers, suppliers or licensors with whom you had contact on behalf of the Company during\nthe last 12 months of your employment with the Company, or\nB. any of the Company’s actual or prospective clients, customers, suppliers or licensors about whom you had any confidential\ninformation during the last 12 months of your employment with the Company.\nIn no event shall it be a violation of this Section 2 to engage in solicitations incidental to general advertising or other general solicitation in the\nordinary course not specifically targeted at such persons or to employ any person not solicited in violation of this agreement.\n3.  Non-Disparagement. You agree that, during your employment with the Company or at any time during the Restricted Period, you shall not\nmake any public statement that is materially disparaging of the business of the Company, or to the business reputation of any of the executive\nofficers of the Company or any of the employees of the Company who are known to you to be employees of the Company at the time of any\nsuch public statement. Your obligations under this Section 3 shall not apply to disclosures required by applicable law, regulation, or order of a\ncourt or governmental agency.\n4.  Confidentiality. All information related to the business of the Company that may be obtained by you from any source as a result of your\nemployment shall be considered as confidential. Materials contained in the Company’s customers’ files should always be regarded as\nconfidential. You should always maintain appropriate administrative, technical and physical safeguards over records in your possession to\nprevent unauthorized access. Information regarding strategic or tactical business plans; undisclosed business, operational or financial data;\nideas, processes, methods, techniques, systems, non-public information, models, devices, programs, computer software or related information;\ndocuments relating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending,\nor threatened legal dispute; pricing or cost data; the identity, reports or analysis of business prospects; business transactions that are\ncontemplated or planned; research data; personnel information or data; identities of users or purchasers of the Company’s products or services;\nor any business methods, operations, or results of the Company may not be disclosed to competitors, to the public, or to any person, nor can\nthe preceding information be otherwise used except as your duties at the Company may require or with the prior written approval of an\nauthorized officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software or other\nstrategies which you develop in the course of performing responsibilities or using Company equipment or facilities are the property of the\nCompany. Upon termination of your employment with the Company, you are required to deliver to the Company all documents, recordings and\nother tangible records (including tapes, discs or other similar media) that contain or are derived from the Company’s confidential information.\nConfidential information of the Company does not include information that:\na. becomes generally available to the public other than as a result of your disclosure in violation of this agreement,\nC. becomes available to you on a non-confidential basis from a source other than the Company, provided that you do not know the\nsource to be subject to another confidentiality agreement with, another obligation of secrecy to, or a fiduciary duty of\nconfidentiality to, the Company with respect to the information; or\nyou independently develop without use of confidential information of the Company.\nIf you have acted in the capacity of legal counsel to the Company, it shall not be a violation of this Section 4 if you maintain one copy of any of the legal files with respect to the advice that you provided while the Company employed you, subject to the code of conduct or ethics of the state in which you are licensed for the purpose of assisting the Company with questions regarding those files after your employment. Consideration. d. Initial Consideration. Subject to the terms and restrictions set forth in this paragraph, YRCW shall pay you an amount (the\n“Consideration”) equal to one-third of your base salary on January 2, 2010; provided, that the Company still employs you on\nJanuary 2, 2010. If your employment with the Company ends as a result of your resignation for any reason (other than your\nresignation following an event that is deemed termination for Cause as described below in this Section 5) or your termination by\nthe Company with Cause, in each case, before March 31, 2010, YRCW shall not be required to pay to you the January 2, 2010\npayment or any future payments under this agreement, and you shall return the January 2, 2010 payment. If the Company\nterminates your employment without Cause or by reason of your death or permanent and total disability before the January 2,\n2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following\nyour termination by the Company without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nb. First Extension. On April 1, 2009, the Restricted Period shall be extended from three to six months following your termination of\nemployment with the Company unless the Board of Directors of YRCW (the “Board”) votes to cancel this extension or you\nnotify the Company in writing that you have cancelled this extension, in each case, prior to April 1, 2009. If this extension is\neffected, subject to the terms and restrictions set forth in this Section 5(b), YRCW shall pay you additional Consideration in an\namount equal to one-third of your base salary on April 1, 2010; provided, that the Company still employs you on April 1, 2010. If\nyour employment with the Company ends as a result of your resignation for any reason (other than your resignation following an\nevent that is deemed termination for Cause as described below in this Section 5) or the Company terminates your employment\nwith Cause, in each case, before June 30, 2010, YRCW shall not be required to pay to you the April 1, 2010 payment or any\nfuture payments under this agreement, and you shall return the April 1, 2010 payment. If the Company terminates your\nemployment without Cause or by reason of your death or permanent and total disability before the April 1, 2010 payment is\nmade, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following your termination\nby the Company without Cause; provided, that you have not breached any applicable provision of this agreement, in which case\nthe remaining payments of the Consideration will not be made, and YRCW shall withhold payment of the remaining payments of\nthe Consideration as damages for any such breach.\nC. Second Extension. If the Restricted Period has been extended pursuant to Section 5(b), then on July 1, 2009, the Restricted Period\nshall be extended again from six to nine months following your termination of employment with the Company unless the Board\nvotes to cancel this extension or you notify the Company in writing that you have cancelled this extension, in each case, prior to\nJuly 1, 2009. If this extension is effected, subject to the terms and restrictions set forth in this Section 5(c), YRCW shall pay you\nadditional Consideration in an amount equal to one-third of your base salary on July 1, 2010; provided, that the Company still\nemploys you on July 1, 2010. If your employment with the Company ends as a result of your resignation for any reason (other\nthan your resignation following an event that is deemed termination for Cause as described below in this Section 5) or your\ntermination by the Company with Cause, in each case, before September 30, 2010, YRCW shall not be required to pay to you the\nJuly 1, 2010 payment or any future payments under this agreement, and you shall return the July 1, 2010 payment. If the\nCompany terminates your employment without Cause or by reason of your death or permanent and total disability before the\nJuly 1, 2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months\nfollowing your termination by YRCW without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nYRCW shall deduct from any of the payments under this Section 5 any applicable withholding taxes under federal and state law. For the\npurposes of this agreement, you shall be considered “permanently and totally disabled” if you are unable to engage in any substantial\ngainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be\nexpected to last for a continuous period of not less than 12 months or is, by reason of any medically determinable physical or mental\nimpairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving\nincome replacement benefits for a period of not less than three months under an accident and health plan covering employees of the\nCompany. “Cause” shall mean any of the following:\na. your conviction of a felony involving acts of dishonesty, fraud or moral turpitude;\ne. f.\nyour willful and repeated failure to perform your duties following 30 days notice of the failure and your failure to cure within the\n30-day period;\nwillful misconduct material to your employment;\nyour willful material breach of Company policies or rules of which you have been made aware following 30 days notice of the\nbreach and your failure to cure within the 30-day period,;\nyour willful, material and demonstrable dishonesty related to your employment; or\ngross negligence in the performance of your job duties.\nFor purposes of this agreement, no act, or failure to act, on your part shall be deemed “willful” or engaged in “willfully” if it was due primarily to an error in judgment or negligence, but shall be deemed “willful” or engaged in “willfully” only if done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest of the Company. If you resign following one or more of the following events, the Company shall be deemed to have terminated you without Cause for the purposes of this agreement: d. the Company relocates your principal place of performance of your duties and responsibilities (“employment domicile”) to a\nlocation more than 50 miles from the your current employment domicile;\nthe Company requires you to travel in excess more than 15% more than you traveled for the business of the Company in the\npreceding 12 months (counting each day or partial day of travel outside of the 100 mile radius of your current employment\ndomicile as a travel day); or\nthe Company reduces your base salary, bonus opportunity or long-term incentive opportunity other than reductions that are\napplicable to all similarly situated executives.\nReasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any agreed upon arbitration panel or court of competent jurisdiction may reform those obligations to the extent necessary to enforce them under applicable law. You further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and irreparable damage to the Company. Accordingly, you agree that upon any violation of any of these obligations and covenants: you are required to return all Consideration to YRCW, and\nYRCW is entitled to withhold payment of any future payments of the Consideration, to injunctive relief in any court of competent\njurisdiction (without the necessity of posting a bond or other security with respect to the injunctive relief) and to any other\nremedies it may have.\nIn addition, you agree that upon any threatened violation of any of these obligations and covenants:\na. YRCW is entitled to withhold payment of the Consideration until any dispute regarding your threatened violation is resolved, and\nb. YRCW is entitled to injunctive relief in any court of competent jurisdiction to prevent the violation, without the necessity of\nposting a bond or other security with respect to the injunctive relief.\nIf you are required to return any of the Consideration pursuant to this agreement, YRCW shall use its reasonable best efforts to reverse any federal or\nstate withholding taxes made on your behalf prior to requesting the return of that portion of the Consideration from you. The provisions of this\nagreement are in addition to the provisions in any written employment agreement between the Company and you, and will not affect the\nresponsibilities or any other rights of you or the Company under those agreements. This agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or the Company may decide to terminate the employment relationship at any time for any reason.\nThis agreement is intended to meet the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and shall be\nadministered in a manner that is intended to meet those requirements and shall be construed and interpreted in accordance with such intent. To the\nextent that a payment is subject to the excise taxes that Section 409A of the Code imposes, the Company shall make the payment or defer it in a\nmanner that will meet the requirements of Section 409A of the Code, including regulations or other guidance issued with respect thereto, such that\nthe payment or deferral shall not be subject to the excise tax applicable under Section 409A of the Code.\nUnless this agreement expressly states to the contrary, references to “Sections” in this agreement mean the sections and subsections of this\nagreement, and capitalized terms that this agreement defines shall have the meanings that this agreement gives to each of them for the purposes of\nthis agreement.\nThis agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs, executors,\nassigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your employment\nwith the Company, regardless of the manner of such termination.\nEach provision of this agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to the\nextent reasonable under the circumstances. In any case, the other provisions of this agreement will not be affected.\nThis agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral or\nwritten, with regard to the subject matter hereof. This agreement is an integrated document and may not be modified or amended except in a writing\nsigned by the parties hereto or their successors in interest.\n[For Sheila K. Taylor: This agreement amends and restates YRCW’s prior agreement with you dated December 18, 2008, in its entirety.\nNotwithstanding anything in this agreement to the contrary, if you have not received Consideration of at least $159,024 (the “Prior Agreement\nAmount”) on or before July 1, 2010, you shall receive a payment, if any, equal to the excess (the “Excess”) of the Prior Agreement Amount over the\namounts paid to you on or before July 1, 2010 so long as you remain employed with the Company on July 1, 2010; provided that if the Company\nterminates you without Cause or if you die or become permanently and totally disability before the July 1, 2010 payment is made, YRCW shall pay\nto you or your estate all unpaid Consideration on the date that is six months following your termination by YRCW without Cause; provided, further,\nthat you have not breached any applicable provision of this agreement, in which case the remaining payments of the Consideration will not be made,\nand YRCW shall withhold payment of the remaining payments of the Consideration as damages for any such breach. If your employment with the\nCompany ends as a result of your resignation for any reason (other than your resignation following an event that is deemed termination for Cause as\ndescribed below in Section 5) or your termination by the Company with Cause, in each case, before July 1, 2010, YRCW shall not be required to pay\nto you the Excess Amount or any future payments under this agreement, and you shall return the payment of the Excess Amount. For the avoidance\nof doubt, the portion of the Consideration paid to you up to the Prior Agreement Amount is part of, and not in addition to, the total Consideration\nthat YRCW pays you pursuant to this agreement. ]\nYRCW hereby agrees to the terms and conditions of this agreement:\nYRC Worldwide Inc.\nBy:\nName:\nTitle:\nI have signed and dated this agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis agreement.\n[employee name]\nDate:	EX-10.35 9 lex1035.htm NON-COMPETITION, NON-SOLICITATION NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.35\nNON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT AND\nCONFIDENTIALITY AGREEMENT\n[name of employee]:\nYRC Worldwide Inc., a Delaware corporation ("YRCW"), has determined that you are important to the operation of the business of YRCW\nand its subsidiaries (collectively, the "Company"). As a key employee, in the course of your work, you will, or have, become aware of information of\na\nconfidential nature pertaining to the business of the Company. The Company maintains policies and procedures with respect to the use and\nthe\ndissemination of confidential information. Your employment creates a relationship of confidence and trust between you and the Company with\nrespect to any information applicable to the business of the Company which may be, or has been, made known to you by the Company or learned\nby\nyou in the course of your work. You understand that you have an obligation to preserve the confidentiality of this information and use it only for\nthe\npurpose for which it was obtained. To further protect this confidential information and to prevent you from using this information and your skills\ngained in the course of your employment with the Company in competition with the Company, YRCW desires to provide you Consideration (defined\nbelow) to obtain your agreement not to compete with the Company and to abide by the other covenants in this agreement as described in the terms of\nthis agreement below.\nIn exchange for the payments of Consideration to you and other good and valuable consideration, the receipt and adequacy of which are hereby\nacknowledged, you understand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you\nexpressly agree that:\n1.\nNon-Competition. You acknowledge that the agreements and covenants contained in this Section 1 are essential to protect the value of the\nbusiness and assets of the Company and by your prior and continued employment with the Company you have obtained, and will continue to\nobtain, valuable confidential information, knowledge, contacts and experience, and there is a substantial probability that this confidential\ninformation, knowledge, contacts and experience could be used to the substantial advantage of a competitor of the Company to the Company's\nsubstantial detriment. Therefore, you agree that so long as the Company employs you and during the Restricted Period (defined below), you\nshall not, and shall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of the Company),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe\nsame\nor\nsimilar\ntype\nas\nthe\nproducts\nor\nservices\nsold\nor\ndelivered\n(or,\npursuant\nto\nan\nexisting\nbusiness\nplan,\nwill\nbe\nsold\nor\ndelivered)\nto\ncustomers of the Company (the "Business") in any geographic region for which you had direct or indirect responsibility on behalf of the\nCompany or in any geographic region for which you had confidential information of the Company. It shall not be a violation of Sections 1 or 2\nif\nyou\nbecome the registered or beneficial owner of up to 5% of any class of the capital stock of a business that is either registered under\nthe\nSecurities Exchange Act of 1934, as amended, or is traded on any foreign stock exchange or if you become employed by or maintain an\ninterest in a law, accounting, consulting or financial advisory firm so long as you do not personally provide advice or services to a competitor\nof\nthe Company as an employee or interest owner during the Restricted Period. For the purposes of this agreement, the "Restricted\nPeriod"\nmeans the period commencing as of the day of your termination of employment with the Company, whether with or without Cause and\nwhether before or after receipt of the Consideration (defined below), and ending three months following termination of your employment with\nthe Company; provided that the Restricted Period may be extended to either six or nine months following termination of your employment\nwith YRCW and any of its subsidiaries in accordance with Section 5.\n2.\nNon-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of the Company):\na.\ncause, solicit, induce or encourage any employees, consultants or contractors of the Company to leave their respective\nemployment or service with the Company,\nb.\nsolicit\nthe\nemployment\nof,\nor\nhire,\nemploy\nor\notherwise\nengage\nany\nemployee\nof\nthe\nCompany;\nprovided\nthat\nit\nshall\nnot\nbe\na\nviolation of this Section 2(b) for an employer that you work for or for a firm in which you maintain an interest to have hired\nan\nemployee of the Company without your knowledge or participation,\nC.\ncause, induce, or encourage any actual or prospective client, customer, supplier or licensor of the Company (including any\nexisting or former customers of the Company) to terminate or modify any actual or prospective business relationship with the\nCompany, and\nd.\ndevelop a business relationship with any actual or prospective client, customer, supplier or licensor to cause, induce, or encourage\nsuch individual to become a client, customer, supplier, or licensor of any business in which you are engaged that is competitive\nwith the Business.\nThe restrictions relating to actual or prospective clients, customers, suppliers or licensors in this Section 2 apply only to:\nA.\nthose actual or prospective clients, customers, suppliers or licensors with whom you had contact on behalf of the Company during\nthe last 12 months of your employment with the Company, or\nB.\nany of the Company's actual or prospective clients, customers, suppliers or licensors about whom you had any confidential\ninformation during the last 12 months of your employment with the Company.\nIn no event shall it be a violation of this Section 2 to engage in solicitations incidental to general advertising or other general solicitation in the\nordinary course not specifically targeted at such persons or to employ any person not solicited in violation of this agreement.\n3.\nNon-Disparagement. You agree that, during your employment with the Company or at any time during the Restricted Period, you shall not\nmake any public statement that is materially disparaging of the business of the Company, or to the business reputation of any of the executive\nofficers of the Company or any of the employees of the Company who are known to you to be employees of the Company at the time of any\nsuch public statement. Your obligations under this Section 3 shall not apply to disclosures required by applicable law, regulation, or order of a\ncourt or governmental agency.\n4.\nConfidentiality.. All information related to the business of the Company that may be obtained by you from any source as a result of your\nemployment shall be considered as confidential. Materials contained in the Company's customers' files should always be regarded as\nconfidential.\nYou\nshould\nalways\nmaintain\nappropriate\nadministrative,\ntechnical\nand\nphysical\nsafeguards\nover\nrecords\nin\nyour\npossession\nto\nprevent unauthorized access. Information regarding strategic or tactical business plans; undisclosed business, operational or financial data;\nideas, processes, methods, techniques, systems, non-public information, models, devices, programs, computer software or related information;\ndocuments relating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending,\nor threatened legal dispute; pricing or cost data; the identity, reports or analysis of business prospects; business transactions that are\ncontemplated or planned; research data; personnel information or data; identities of users or purchasers of the Company's products or services;\nor any business methods, operations, or results of the Company may not be disclosed to competitors, to the public, or to any person, nor can\nthe preceding information be otherwise used except as your duties at the Company may require or with the prior written approval of an\nauthorized officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software or other\nstrategies which you develop in the course of performing responsibilities or using Company equipment or facilities are the property of the\nCompany. Upon termination of your employment with the Company, you are required to deliver to the Company all documents, recordings and\nother tangible records (including tapes, discs or other similar media) that contain or are derived from the Company's confidential information.\nConfidential information of the Company does not include information that:\na.\nbecomes generally available to the public other than as a result of your disclosure in violation of this agreement,\nb.\nbecomes available to you on a non-confidential basis from a source other than the Company, provided that you do not know the\nsource to be subject to another confidentiality agreement with, another obligation of secrecy to, or a fiduciary duty of\nconfidentiality to, the Company with respect to the information; or\nC.\nyou independently develop without use of confidential information of the Company.\nIf\nyou\nhave acted in the capacity of legal counsel to the Company, it shall not be a violation of this Section 4 if you maintain one copy of any\nof the legal files with respect to the advice that you provided while the Company employed you, subject to the code of conduct or ethics of the\nstate in which you are licensed for the purpose of assisting the Company with questions regarding those files after your employment.\n5. Consideration.\na.\nInitial Consideration. Subject to the terms and restrictions set forth in this paragraph, YRCW shall pay you an amount (the\n"Consideration") equal to one-third of your base salary on January 2, 2010; provided, that the Company still employs\nyou\non\nJanuary 2, 2010. If your employment with the Company ends as a result of your resignation for any reason (other than your\nresignation following an event that is deemed termination for Cause as described below in this Section 5) or your termination by\nthe Company with Cause, in each case, before March 31, 2010, YRCW shall not be required to pay to you the January 2, 2010\npayment or any future payments under this agreement, and you shall return the January 2, 2010 payment. If the Company\nterminates your employment without Cause or by reason of your death or permanent and total disability before the January 2,\n2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following\nyour termination by the Company without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nb.\nFirst Extension. On April 1, 2009, the Restricted Period shall be extended from three to six months following your termination of\nemployment with the Company unless the Board of Directors of YRCW (the "Board") votes to cancel this extension or you\nnotify the Company in writing that you have cancelled this extension, in each case, prior to April 1, 2009. If this extension is\neffected, subject to the terms and restrictions set forth in this Section 5(b), YRCW shall pay you additional Consideration in an\namount equal to one-third of your base salary on April 1, 2010; provided, that the Company still employs you on April 1, 2010. If\nyour employment with the Company ends as a result of your resignation for any reason (other than your resignation following an\nevent that is deemed termination for Cause as described below in this Section 5) or the Company terminates your employment\nwith Cause, in each case, before June 30, 2010, YRCW shall not be required to pay to you the April 1, 2010 payment or any\nfuture payments under this agreement, and you shall return the April 1, 2010 payment. If the Company terminates your\nemployment without Cause or by reason of your death or permanent and total disability before the April 1, 2010 payment is\nmade, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following your termination\nby the Company without Cause; provided, that you have not breached any applicable provision of this agreement, in which case\nthe remaining payments of the Consideration will not be made, and YRCW shall withhold payment of the remaining payments of\nthe Consideration as damages for any such breach.\nC.\nSecond Extension. If the Restricted Period has been extended pursuant to Section 5(b), then on July 1, 2009, the Restricted Period\nshall be extended again from six to nine months following your termination of employment with the Company unless the Board\nvotes to cancel this extension or you notify the Company in writing that you have cancelled this extension, in each case, prior to\nJuly 1, 2009. If this extension is effected, subject to the terms and restrictions set forth in this Section 5(c), YRCW shall pay you\nadditional Consideration in an amount equal to one-third of your base salary on July 1, 2010; provided, that the Company still\nemploys you on July 1, 2010. If your employment with the Company ends as a result of your resignation for any reason (other\nthan your resignation following an event that is deemed termination for Cause as described below in this Section 5) or your\ntermination by the Company with Cause, in each case, before September 30, 2010, YRCW shall not be required to pay to you the\nJuly 1, 2010 payment or any future payments under this agreement, and you shall return the July 1, 2010 payment. If the\nCompany terminates your employment without Cause or by reason of your death or permanent and total disability before the\nJuly 1, 2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months\nfollowing your termination by YRCW without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nYRCW shall deduct from any of the payments under this Section 5 any applicable withholding taxes under federal and state law. For the\npurposes of this agreement, you shall be considered "permanently and totally disabled" if you are unable to engage in any substantial\ngainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be\nexpected to last for a continuous period of not less than 12 months or is, by reason of any medically determinable physical or mental\nimpairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving\nincome replacement benefits for a period of not less than three months under an accident and health plan covering employees of the\nCompany. "Cause" shall mean any of the following:\na.\nyour conviction of a felony involving acts of dishonesty, fraud or moral turpitude;\nb.\nyour willful and repeated failure to perform your duties following 30 days notice of the failure and your failure to cure within the\n30-day period;\nC.\nwillful misconduct material to your employment;\nd.\nyour willful material breach of Company policies or rules of which you have been made aware following 30 days notice of the\nbreach and your failure to cure within the 30-day period;\ne.\nyour willful, material and demonstrable dishonesty related to your employment; or\nf.\ngross negligence in the performance of your job duties.\nFor purposes of this agreement, no act, or failure to act, on your part shall be deemed "willful" or engaged in "willfully" if it was due primarily\nto an error in judgment or negligence, but shall be deemed "willful" or engaged in "willfully" only if done, or omitted to be done, by you not in\ngood faith and without reasonable belief that your action or omission was in the best interest of the Company.\nIf you resign following one or more of the following events, the Company shall be deemed to have terminated you without Cause for the\npurposes of this agreement:\na.\nthe Company relocates your principal place of performance of your duties and responsibilities ("employment domicile") to a\nlocation more than 50 miles from the your current employment domicile;\nb.\nthe Company requires you to travel in excess more than 15% more than you traveled for the business of the Company in the\npreceding 12 months (counting each day or partial day of travel outside of the 100 mile radius of your current employment\ndomicile as a travel day); or\nC.\nthe Company reduces your base salary, bonus opportunity or long-term incentive opportunity other than reductions that are\napplicable to all similarly situated executives.\n6.\nReasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\nagreed upon arbitration panel or court of competent jurisdiction may reform those obligations to the extent necessary to enforce them under\napplicable law. You further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and\nirreparable damage to the Company. Accordingly, you agree that upon any violation of any of these obligations and covenants:\na.\nyou are required to return all Consideration to YRCW, and\nb.\nYRCW is entitled to withhold payment of any future payments of the Consideration, to injunctive relief in any court of competent\njurisdiction (without the necessity of posting a bond or other security with respect to the injunctive relief) and to any other\nremedies it may have.\nIn\naddition, you agree that upon any threatened violation of any of these obligations and covenants:\na.\nYRCW is entitled to withhold payment of the Consideration until any dispute regarding your threatened violation is resolved, and\nb.\nYRCW is entitled to injunctive relief in any court of competent jurisdiction to prevent the violation, without the necessity of\nposting a bond or other security with respect to the injunctive relief.\nIf\nyou are required to return any of the Consideration pursuant to this agreement, YRCW shall use its reasonable best efforts to reverse any federal or\nstate withholding taxes made on your behalf prior to requesting the return of that portion of the Consideration from you. The provisions of this\nagreement are in addition to the provisions in any written employment agreement between the Company and you, and will not affect the\nresponsibilities or any other rights of you or the Company under those agreements. This agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or the Company may decide to terminate the employment relationship at any time for any reason.\nThis agreement is intended to meet the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and shall\nbe\nadministered in a manner that is intended to meet those requirements and shall be construed and interpreted in accordance with such intent. To the\nextent that a payment is subject to the excise taxes that Section 409A of the Code imposes, the Company shall make the payment or defer it in a\nmanner that will meet the requirements of Section 409A of the Code, including regulations or other guidance issued with respect thereto, such that\nthe payment or deferral shall not be subject to the excise tax applicable under Section 409A of the Code.\nUnless this agreement expressly states to the contrary, references to "Sections" in this agreement mean the sections and subsections of this\nagreement, and capitalized terms that this agreement defines shall have the meanings that this agreement gives to each of them for the purposes of\nthis agreement.\nThis agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs, executors,\nassigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your\nemployment\nwith the Company, regardless of the manner of such termination.\nEach provision of this agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to the\nextent reasonable under the circumstances In any case, the other provisions of this agreement will not be affected.\nThis agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral\nor\nwritten, with regard to the subject matter hereof. This agreement is an integrated document and may not be modified or amended except in a writing\nsigned by the parties hereto or their successors in interest.\n[For Sheila K. Taylor: This agreement amends and restates YRCW's prior agreement with you dated December 18, 2008, in its entirety.\nNotwithstanding anything in this agreement to the contrary, if you have not received Consideration of at least $159,024 (the "Prior Agreement\nAmount") on or before July 1, 2010, you shall receive a payment, if any, equal to the excess (the "Excess") of the Prior Agreement Amount over the\namounts paid to you on or before July 1, 2010 so long as you remain employed with the Company on July 1, 2010; provided that if the Company\nterminates you without Cause or if you die or become permanently and totally disability before the July 1, 2010 payment is made, YRCW shall pay\nto you or your estate all unpaid Consideration on the date that is six months following your termination by YRCW without Cause; provided, further,\nthat you have not breached any applicable provision of this agreement, in which case the remaining payments of the Consideration will not be made,\nand YRCW shall withhold payment of the remaining payments of the Consideration as damages for any such breach. If your employment with the\nCompany ends as a result of your resignation for any reason (other than your resignation following an event that is deemed termination for Cause as\ndescribed below in Section 5) or your termination by the Company with Cause, in each case, before July 1, 2010, YRCW shall not be required to pay\nto you the Excess Amount or any future payments under this agreement, and you shall return the payment of the Excess Amount. For the avoidance\nof doubt, the portion of the Consideration paid to you up to the Prior Agreement Amount is part of, and not in addition to, the total Consideration\nthat YRCW pays you pursuant to this agreement.]\nYRCW hereby agrees to the terms and conditions of this agreement:\nYRC Worldwide Inc.\nBy:\nName:\nTitle:\nI have signed and dated this agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis agreement.\n[employee name]\nDate:	EX-10.35 9 dex1035.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.35\nNON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT AND\nCONFIDENTIALITY AGREEMENT\n[name of employee]:\nYRC Worldwide Inc., a Delaware corporation (“YRCW”), has determined that you are important to the operation of the business of YRCW\nand its subsidiaries (collectively, the “Company”). As a key employee, in the course of your work, you will, or have, become aware of information of\na confidential nature pertaining to the business of the Company. The Company maintains policies and procedures with respect to the use and the\ndissemination of confidential information. Your employment creates a relationship of confidence and trust between you and the Company with\nrespect to any information applicable to the business of the Company which may be, or has been, made known to you by the Company or learned by\nyou in the course of your work. You understand that you have an obligation to preserve the confidentiality of this information and use it only for the\npurpose for which it was obtained. To further protect this confidential information and to prevent you from using this information and your skills\ngained in the course of your employment with the Company in competition with the Company, YRCW desires to provide you Consideration (defined\nbelow) to obtain your agreement not to compete with the Company and to abide by the other covenants in this agreement as described in the terms of\nthis agreement below.\nIn exchange for the payments of Consideration to you and other good and valuable consideration, the receipt and adequacy of which are hereby\nacknowledged, you understand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you\nexpressly agree that:\n1. Non-Competition. You acknowledge that the agreements and covenants contained in this Section 1 are essential to protect the value of the\nbusiness and assets of the Company and by your prior and continued employment with the Company you have obtained, and will continue to\nobtain, valuable confidential information, knowledge, contacts and experience, and there is a substantial probability that this confidential\ninformation, knowledge, contacts and experience could be used to the substantial advantage of a competitor of the Company to the Company’s\nsubstantial detriment. Therefore, you agree that so long as the Company employs you and during the Restricted Period (defined below), you\nshall not, and shall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of the Company),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of the Company (the “Business”) in any geographic region for which you had direct or indirect responsibility on behalf of the\nCompany or in any geographic region for which you had confidential information of the Company. It shall not be a violation of Sections 1 or 2\nif you become the registered or beneficial owner of up to 5% of any class of the capital stock of a business that is either registered under the\nSecurities Exchange Act of 1934, as amended, or is traded on any foreign stock exchange or if you become employed by or maintain an\ninterest in a law, accounting, consulting or financial advisory firm so long as you do not personally provide advice or services to a competitor\nof the Company as an employee or interest owner during the Restricted Period. For the purposes of this agreement, the “Restricted Period”\nmeans the period commencing as of the day of your termination of employment with the Company, whether with or without Cause and\nwhether before or after receipt of the Consideration (defined below), and ending three months following termination of your employment with\nthe Company; provided that the Restricted Period may be extended to either six or nine months following termination of your employment\nwith YRCW and any of its subsidiaries in accordance with Section 5.\n2. Non-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of the Company):\na.\ncause, solicit, induce or encourage any employees, consultants or contractors of the Company to leave their respective\nemployment or service with the Company,\nb.\nsolicit the employment of, or hire, employ or otherwise engage any employee of the Company; provided that it shall not be a\nviolation of this Section 2(b) for an employer that you work for or for a firm in which you maintain an interest to have hired an\nemployee of the Company without your knowledge or participation,\nc.\ncause, induce, or encourage any actual or prospective client, customer, supplier or licensor of the Company (including any\nexisting or former customers of the Company) to terminate or modify any actual or prospective business relationship with the\nCompany, and\nd.\ndevelop a business relationship with any actual or prospective client, customer, supplier or licensor to cause, induce, or encourage\nsuch individual to become a client, customer, supplier, or licensor of any business in which you are engaged that is competitive\nwith the Business.\nThe restrictions relating to actual or prospective clients, customers, suppliers or licensors in this Section 2 apply only to:\nA.\nthose actual or prospective clients, customers, suppliers or licensors with whom you had contact on behalf of the Company during\nthe last 12 months of your employment with the Company, or\nB.\nany of the Company’s actual or prospective clients, customers, suppliers or licensors about whom you had any confidential\ninformation during the last 12 months of your employment with the Company.\nIn no event shall it be a violation of this Section 2 to engage in solicitations incidental to general advertising or other general solicitation in the\nordinary course not specifically targeted at such persons or to employ any person not solicited in violation of this agreement.\n3. Non-Disparagement. You agree that, during your employment with the Company or at any time during the Restricted Period, you shall not\nmake any public statement that is materially disparaging of the business of the Company, or to the business reputation of any of the executive\nofficers of the Company or any of the employees of the Company who are known to you to be employees of the Company at the time of any\nsuch public statement. Your obligations under this Section 3 shall not apply to disclosures required by applicable law, regulation, or order of a\ncourt or governmental agency.\n4. Confidentiality. All information related to the business of the Company that may be obtained by you from any source as a result of your\nemployment shall be considered as confidential. Materials contained in the Company’s customers’ files should always be regarded as\nconfidential. You should always maintain appropriate administrative, technical and physical safeguards over records in your possession to\nprevent unauthorized access. Information regarding strategic or tactical business plans; undisclosed business, operational or financial data;\nideas, processes, methods, techniques, systems, non-public information, models, devices, programs, computer software or related information;\ndocuments relating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending,\nor threatened legal dispute; pricing or cost data; the identity, reports or analysis of business prospects; business transactions that are\ncontemplated or planned; research data; personnel information or data; identities of users or purchasers of the Company’s products or services;\nor any business methods, operations, or results of the Company may not be disclosed to competitors, to the public, or to any person, nor can\nthe preceding information be otherwise used except as your duties at the Company may require or with the prior written approval of an\nauthorized officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software or other\nstrategies which you develop in the course of performing responsibilities or using Company equipment or facilities are the property of the\nCompany. Upon termination of your employment with the Company, you are required to deliver to the Company all documents, recordings and\nother tangible records (including tapes, discs or other similar media) that contain or are derived from the Company’s confidential information.\nConfidential information of the Company does not include information that:\na.\nbecomes generally available to the public other than as a result of your disclosure in violation of this agreement,\nb.\nbecomes available to you on a non-confidential basis from a source other than the Company, provided that you do not know the\nsource to be subject to another confidentiality agreement with, another obligation of secrecy to, or a fiduciary duty of\nconfidentiality to, the Company with respect to the information; or\nc.\nyou independently develop without use of confidential information of the Company.\nIf you have acted in the capacity of legal counsel to the Company, it shall not be a violation of this Section 4 if you maintain one copy of any\nof the legal files with respect to the advice that you provided while the Company employed you, subject to the code of conduct or ethics of the\nstate in which you are licensed for the purpose of assisting the Company with questions regarding those files after your employment.\n5. Consideration.\na.\nInitial Consideration. Subject to the terms and restrictions set forth in this paragraph, YRCW shall pay you an amount (the\n“Consideration”) equal to one-third of your base salary on January 2, 2010; provided, that the Company still employs you on\nJanuary 2, 2010. If your employment with the Company ends as a result of your resignation for any reason (other than your\nresignation following an event that is deemed termination for Cause as described below in this Section 5) or your termination by\nthe Company with Cause, in each case, before March 31, 2010, YRCW shall not be required to pay to you the January 2, 2010\npayment or any future payments under this agreement, and you shall return the January 2, 2010 payment. If the Company\nterminates your employment without Cause or by reason of your death or permanent and total disability before the January 2,\n2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following\nyour termination by the Company without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nb.\nFirst Extension. On April 1, 2009, the Restricted Period shall be extended from three to six months following your termination of\nemployment with the Company unless the Board of Directors of YRCW (the “Board”) votes to cancel this extension or you\nnotify the Company in writing that you have cancelled this extension, in each case, prior to April 1, 2009. If this extension is\neffected, subject to the terms and restrictions set forth in this Section 5(b), YRCW shall pay you additional Consideration in an\namount equal to one-third of your base salary on April 1, 2010; provided, that the Company still employs you on April 1, 2010. If\nyour employment with the Company ends as a result of your resignation for any reason (other than your resignation following an\nevent that is deemed termination for Cause as described below in this Section 5) or the Company terminates your employment\nwith Cause, in each case, before June 30, 2010, YRCW shall not be required to pay to you the April 1, 2010 payment or any\nfuture payments under this agreement, and you shall return the April 1, 2010 payment. If the Company terminates your\nemployment without Cause or by reason of your death or permanent and total disability before the April 1, 2010 payment is\nmade, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following your termination\nby the Company without Cause; provided, that you have not breached any applicable provision of this agreement, in which case\nthe remaining payments of the Consideration will not be made, and YRCW shall withhold payment of the remaining payments of\nthe Consideration as damages for any such breach.\nc.\nSecond Extension. If the Restricted Period has been extended pursuant to Section 5(b), then on July 1, 2009, the Restricted Period\nshall be extended again from six to nine months following your termination of employment with the Company unless the Board\nvotes to cancel this extension or you notify the Company in writing that you have cancelled this extension, in each case, prior to\nJuly 1, 2009. If this extension is effected, subject to the terms and restrictions set forth in this Section 5(c), YRCW shall pay you\nadditional Consideration in an amount equal to one-third of your base salary on July 1, 2010; provided, that the Company still\nemploys you on July 1, 2010. If your employment with the Company ends as a result of your resignation for any reason (other\nthan your resignation following an event that is deemed termination for Cause as described below in this Section 5) or your\ntermination by the Company with Cause, in each case, before September 30, 2010, YRCW shall not be required to pay to you the\nJuly 1, 2010 payment or any future payments under this agreement, and you shall return the July 1, 2010 payment. If the\nCompany terminates your employment without Cause or by reason of your death or permanent and total disability before the\nJuly 1, 2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months\nfollowing your termination by YRCW without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nYRCW shall deduct from any of the payments under this Section 5 any applicable withholding taxes under federal and state law. For the\npurposes of this agreement, you shall be considered “permanently and totally disabled” if you are unable to engage in any substantial\ngainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be\nexpected to last for a continuous period of not less than 12 months or is, by reason of any medically determinable physical or mental\nimpairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving\nincome replacement benefits for a period of not less than three months under an accident and health plan covering employees of the\nCompany. “Cause” shall mean any of the following:\na.\nyour conviction of a felony involving acts of dishonesty, fraud or moral turpitude;\nb.\nyour willful and repeated failure to perform your duties following 30 days notice of the failure and your failure to cure within the\n30-day period;\nc.\nwillful misconduct material to your employment;\nd.\nyour willful material breach of Company policies or rules of which you have been made aware following 30 days notice of the\nbreach and your failure to cure within the 30-day period;\ne.\nyour willful, material and demonstrable dishonesty related to your employment; or\nf.\ngross negligence in the performance of your job duties.\nFor purposes of this agreement, no act, or failure to act, on your part shall be deemed “willful” or engaged in “willfully” if it was due primarily\nto an error in judgment or negligence, but shall be deemed “willful” or engaged in “willfully” only if done, or omitted to be done, by you not in\ngood faith and without reasonable belief that your action or omission was in the best interest of the Company.\nIf you resign following one or more of the following events, the Company shall be deemed to have terminated you without Cause for the\npurposes of this agreement:\na.\nthe Company relocates your principal place of performance of your duties and responsibilities (“employment domicile”) to a\nlocation more than 50 miles from the your current employment domicile;\nb.\nthe Company requires you to travel in excess more than 15% more than you traveled for the business of the Company in the\npreceding 12 months (counting each day or partial day of travel outside of the 100 mile radius of your current employment\ndomicile as a travel day); or\nc.\nthe Company reduces your base salary, bonus opportunity or long-term incentive opportunity other than reductions that are\napplicable to all similarly situated executives.\n6. Reasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\nagreed upon arbitration panel or court of competent jurisdiction may reform those obligations to the extent necessary to enforce them under\napplicable law. You further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and\nirreparable damage to the Company. Accordingly, you agree that upon any violation of any of these obligations and covenants:\na.\nyou are required to return all Consideration to YRCW, and\nb.\nYRCW is entitled to withhold payment of any future payments of the Consideration, to injunctive relief in any court of competent\njurisdiction (without the necessity of posting a bond or other security with respect to the injunctive relief) and to any other\nremedies it may have.\nIn addition, you agree that upon any threatened violation of any of these obligations and covenants:\na.\nYRCW is entitled to withhold payment of the Consideration until any dispute regarding your threatened violation is resolved, and\nb.\nYRCW is entitled to injunctive relief in any court of competent jurisdiction to prevent the violation, without the necessity of\nposting a bond or other security with respect to the injunctive relief.\nIf you are required to return any of the Consideration pursuant to this agreement, YRCW shall use its reasonable best efforts to reverse any federal or\nstate withholding taxes made on your behalf prior to requesting the return of that portion of the Consideration from you. The provisions of this\nagreement are in addition to the provisions in any written employment agreement between the Company and you, and will not affect the\nresponsibilities or any other rights of you or the Company under those agreements. This agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or the Company may decide to terminate the employment relationship at any time for any reason.\nThis agreement is intended to meet the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and shall be\nadministered in a manner that is intended to meet those requirements and shall be construed and interpreted in accordance with such intent. To the\nextent that a payment is subject to the excise taxes that Section 409A of the Code imposes, the Company shall make the payment or defer it in a\nmanner that will meet the requirements of Section 409A of the Code, including regulations or other guidance issued with respect thereto, such that\nthe payment or deferral shall not be subject to the excise tax applicable under Section 409A of the Code.\nUnless this agreement expressly states to the contrary, references to “Sections” in this agreement mean the sections and subsections of this\nagreement, and capitalized terms that this agreement defines shall have the meanings that this agreement gives to each of them for the purposes of\nthis agreement.\nThis agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs, executors,\nassigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your employment\nwith the Company, regardless of the manner of such termination.\nEach provision of this agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to the\nextent reasonable under the circumstances. In any case, the other provisions of this agreement will not be affected.\nThis agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral or\nwritten, with regard to the subject matter hereof. This agreement is an integrated document and may not be modified or amended except in a writing\nsigned by the parties hereto or their successors in interest.\n[For Sheila K. Taylor: This agreement amends and restates YRCW’s prior agreement with you dated December 18, 2008, in its entirety.\nNotwithstanding anything in this agreement to the contrary, if you have not received Consideration of at least $159,024 (the “Prior Agreement\nAmount”) on or before July 1, 2010, you shall receive a payment, if any, equal to the excess (the “Excess”) of the Prior Agreement Amount over the\namounts paid to you on or before July 1, 2010 so long as you remain employed with the Company on July 1, 2010; provided that if the Company\nterminates you without Cause or if you die or become permanently and totally disability before the July 1, 2010 payment is made, YRCW shall pay\nto you or your estate all unpaid Consideration on the date that is six months following your termination by YRCW without Cause; provided, further,\nthat you have not breached any applicable provision of this agreement, in which case the remaining payments of the Consideration will not be made,\nand YRCW shall withhold payment of the remaining payments of the Consideration as damages for any such breach. If your employment with the\nCompany ends as a result of your resignation for any reason (other than your resignation following an event that is deemed termination for Cause as\ndescribed below in Section 5) or your termination by the Company with Cause, in each case, before July 1, 2010, YRCW shall not be required to pay\nto you the Excess Amount or any future payments under this agreement, and you shall return the payment of the Excess Amount. For the avoidance\nof doubt, the portion of the Consideration paid to you up to the Prior Agreement Amount is part of, and not in addition to, the total Consideration\nthat YRCW pays you pursuant to this agreement.]\nYRCW hereby agrees to the terms and conditions of this agreement:\nYRC Worldwide Inc.\nBy:\nName:\nTitle:\nI have signed and dated this agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis agreement.\n[employee name]\nDate:
432b1e62deca99f4510ca4ebded0e667.pdf	effective_date jurisdiction party term	EX-10.2 4 dex102.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nKENNETH F. BUECHLER\nExhibit 10.2\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the “Agreement”) entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Company”) and, BIOSITE\nINCORPORATED, a Delaware corporation (the “Employer”), on the one hand, and Kenneth Buechler, an individual, who is a resident of and\nemployed in the State of California (“Employee”), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the “Merger Agreement”), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 256,993 shares of Common Stock of Employer and has options to purchase 362,896 shares of Common Stock of\nEmployer (the “Employee Options”), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property Rights.\n(a) Definition of “Inventions.” As used herein, the term “Inventions” shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee’s employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), and that Employer is to be the “author”\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment is\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. “Trade Secrets” shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company to\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe sole option of Employer, bear Employer’s patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f) Further Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer’s reasonable\nrequest and at Employer’s expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer’s rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer’s exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer’s rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee’s technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer’s request rendering such assistance.\n(g) Power of Attorney. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee’s possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee’s unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. “Confidential Information” shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer’s request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating to\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n4\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer’s and the Company’s interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n“Restricted Period”), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a “Competitor” is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the “Biosite Business”); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company, or\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the “beneficial ownership” by Employee, either individually or as a member of a “group,” as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the “Exchange Act”), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities, compensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and in\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee’s responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee’s\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase of the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party Beneficiaries. Employer’s parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee’s obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer’s Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as “Attorneys”) in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to\n7\nthe period of Employee’s employment with Employer. Employee’s duty of cooperation shall include, but shall not be limited to, (a) meeting with\nAttorneys by telephone or in person at mutually convenient times and places in order to state truthfully Employee’s knowledge of the matters at issue\nand recollection of events; (b) appearing at Attorneys’ request (and, to the extent reasonably possible, at a time convenient to Employee that does not\nconflict with the needs or requirements of Employee’s then current employer) as a witness at depositions, trials or other proceedings, without the\nnecessity of a subpoena, in order to state truthfully Employee’s knowledge of the matters at issue; and (c) signing at Attorneys’ request declarations\nor affidavits that truthfully state the matters of which Employee has knowledge. Employer shall promptly reimburse Employee for Employee’s actual\nand reasonable travel and other out-of-pocket expenses that Employee may incur in cooperating with Attorneys pursuant to this Section 3. In\naddition, to the extent that, after the termination of Employee’s employment for any reason, Employee provides cooperation pursuant to this\nSection 3, Employer shall, upon Employee request, compensate Employee at a reasonable rate for the time actually spent by Employee at\nEmployer’s request rendering such cooperation. The provisions of this Section 3 are in addition to any other written agreements on this subject that\nEmployee may have with Employer or the Company, or any of their respective subsidiaries or affiliates and are not meant to and do not excuse any\nadditional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute “Good Reason” as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the “Biosite Severance Plan”) prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the “Option Consideration”). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein.\n8\nEmployee acknowledges that this Section 5(a) is in lieu of any benefits to which the Employee may be entitled under (i) Section 4(a)(1)(iii) of the\nBiosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee’s current rate of base salary ($459,251) (the “Current Base\nSalary”), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee’s employment by\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the “Transition Period”). For\npurposes of this Agreement only, “Good Cause” means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than a full-time basis, or perform work that is\nother than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee acknowledges that this\nSection 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite Severance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee’s Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee’s Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee’s employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee’s “Negotiated Bonus” is an amount equal to 50% of the Employee’s Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(ii) of the Biosite Severance Plan remains in full force and effect.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee’s separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee is considered a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest, penalties and additional tax imposed pursuant to\nSection 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be payable or benefit\nshall be provided prior to the date that is the earliest of (i) six months and one day after the Employee’s date of termination, (ii) the Employee’s\ndeath, or (iii) such other date as will cause such payment not to be subject to such interest, penalties and additional tax, and the initial payment or\nprovision of benefit shall include a catch-up\n9\namount covering amounts that would otherwise have been paid during the first six-month period but for the application of this Section 6. The parties\nintend that this Agreement will be administered in accordance with Section 409A of the Code. The parties agree that this Agreement may be\namended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and\nregulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S . Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n10\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee’s employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys’ fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator’s fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL INNOVATIONS, INC.\nA Delaware corporation\nBy: /s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy: /s/ Chris Twomey\nName: Chris Twomey\nTitle: Senior VP Finance, CFO\nKENNETH BUECHLER\n/s/ Kenneth Buechler\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n12\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\n13	EX-10.2 4 dex102.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nKENNETH F. BUECHLER\nExhibit 10.2\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the “Agreement”) entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Company”) and, BIOSITE\nINCORPORATED, a Delaware corporation (the “Employer”), on the one hand, and Kenneth Buechler, an individual, who is a resident of and\nemployed in the State of California (“Employee”), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the “Merger Agreement”), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 256,993 shares of Common Stock of Employer and has options to purchase 362,896 shares of Common Stock of\nEmployer (the “Employee Options™), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property Rights.\n(a) Definition of “Inventions.” As used herein, the term “Inventions” shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee’s employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), and that Employer is to be the “author”\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment is\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. “Trade Secrets” shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company to\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe sole option of Employer, bear Employer’s patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f) Further Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer’s reasonable\nrequest and at Employer’s expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer’s rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer’s exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer’s rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee’s technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer’s request rendering such assistance.\n(g) Power of Attorney. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee’s possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee’s unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. “Confidential Information” shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer’s request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating to\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n \ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer’s and the Company’s interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n“Restricted Period”), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a “Competitor” is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the “Biosite Business™); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company, or\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the “beneficial ownership” by Employee, either individually or as a member of a “group,” as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the “Exchange Act”), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities, compensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and in\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee’s responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee’s\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase of the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party Beneficiaries. Employer’s parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee’s obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer’s Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as “Attorneys™) in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to\n7\nthe period of Employee’s employment with Employer. Employee’s duty of cooperation shall include, but shall not be limited to, (a) meeting with\nAttorneys by telephone or in person at mutually convenient times and places in order to state truthfully Employee’s knowledge of the matters at issue\nand recollection of events; (b) appearing at Attorneys’ request (and, to the extent reasonably possible, at a time convenient to Employee that does not\nconflict with the needs or requirements of Employee’s then current employer) as a witness at depositions, trials or other proceedings, without the\nnecessity of a subpoena, in order to state truthfully Employee’s knowledge of the matters at issue; and (c) signing at Attorneys’ request declarations\nor affidavits that truthfully state the matters of which Employee has knowledge. Employer shall promptly reimburse Employee for Employee’s actual\nand reasonable travel and other out-of-pocket expenses that Employee may incur in cooperating with Attorneys pursuant to this Section 3. In\naddition, to the extent that, after the termination of Employee’s employment for any reason, Employee provides cooperation pursuant to this\nSection 3, Employer shall, upon Employee request, compensate Employee at a reasonable rate for the time actually spent by Employee at\nEmployer’s request rendering such cooperation. The provisions of this Section 3 are in addition to any other written agreements on this subject that\nEmployee may have with Employer or the Company, or any of their respective subsidiaries or affiliates and are not meant to and do not excuse any\nadditional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute “Good Reason” as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the “Biosite Severance Plan”) prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n \n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the “Option Consideration”). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein.\nEmployee acknowledges that this Section 5(a) is in lieu of any benefits to which the Employee may be entitled under (i) Section 4(a)(1)(iii) of the\nBiosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee’s current rate of base salary ($459,251) (the “Current Base\nSalary”), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee’s employment by\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the “Transition Period”). For\npurposes of this Agreement only, “Good Cause” means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than a full-time basis, or perform work that is\nother than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee acknowledges that this\nSection 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite Severance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee’s Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee’s Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee’s employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee’s “Negotiated Bonus” is an amount equal to 50% of the Employee’s Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(i) of the Biosite Severance Plan remains in full force and effect.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee’s separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee is considered a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest, penalties and additional tax imposed pursuant to\nSection 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be payable or benefit\nshall be provided prior to the date that is the earliest of (i) six months and one day after the Employee’s date of termination, (ii) the Employee’s\ndeath, or (iii) such other date as will cause such payment not to be subject to such interest, penalties and additional tax, and the initial payment or\nprovision of benefit shall include a catch-up\namount covering amounts that would otherwise have been paid during the first six-month period but for the application of this Section 6. The parties\nintend that this Agreement will be administered in accordance with Section 409A of the Code. The parties agree that this Agreement may be\namended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and\nregulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n \n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n10\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee’s employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys’ fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator’s fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL INNOVATIONS, INC.\nA Delaware corporation\nBy: /s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy:  /s/ Chris Twomey\nName: Chris Twomey\nTitle: Senior VP Finance, CFO\nKENNETH BUECHLER\n/s/ Kenneth Buechler\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n12\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an (b)\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\n13	EX-10.2 4 dex102.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nKENNETH F. BUECHLER\nExhibit 10.2\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the "Agreement") entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the "Company") and, BIOSITE\nINCORPORATED, a Delaware corporation (the "Employer"), on the one hand, and Kenneth Buechler, an individual, who is a resident of and\nemployed in the State of California ("Employee"), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the "Merger Agreement"), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 256,993 shares of Common Stock of Employer and has options to purchase 362,896 shares of Common Stock of\nEmployer (the "Employee Options"), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property. Rights.\n(a) Definition of "Inventions." As used herein, the term "Inventions" shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether\nor\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee's employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered "works made for hire" within the meaning of the Copyright Act of 1976, as amended (the "Act"), and that Employer is to be the "author"\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment\nis\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. "Trade Secrets" shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company\nto\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe\nsole option of Employer, bear Employer's patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f)\nFurther Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer's reasonable\nrequest and at Employer's expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer's rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer's exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer's rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee's technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer's request rendering such assistance.\n(g) Power of Attorney.. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee's possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality.. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee's unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. "Confidential Information" shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or\nthe\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidentia Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer's request at any time or upon\ntermination\nor expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists,\ndata,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating\nto\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n4\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer's and the Company's interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n"Restricted Period"), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a "Competitor" is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the "Biosite Business"); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company,\nor\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the "beneficial ownership" by Employee, either individually or as a member of a "group," as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the "Exchange Act"), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities,\ncompensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and\nin\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee's responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee's\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase\nof the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party. Beneficiaries. Employer's parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee's obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer's Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party. Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as "Attorneys") in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to\n7\nthe period of Employee's employment with Employer. Employee's duty of cooperation shall include, but shall not be limited to, (a) meeting with\nAttorneys by telephone or in person at mutually convenient times and places in order to state truthfully Employee's knowledge of the matters at issue\nand recollection of events; (b) appearing at Attorneys' request (and, to the extent reasonably possible, at a time convenient to Employee that does not\nconflict with the needs or requirements of Employee's then current employer) as a witness at depositions, trials or other proceedings, without the\nnecessity of a subpoena, in order to state truthfully Employee's knowledge of the matters at issue; and (c) signing at Attorneys' request declarations\nor affidavits that truthfully state the matters of which Employee has knowledge. Employer shall promptly reimburse Employee for Employee's actual\nand reasonable travel and other out-of-pocket expenses that Employee may incur in cooperating with Attorneys pursuant to this Section 3. In\naddition, to the extent that, after the termination of Employee's employment for any reason, Employee provides cooperation pursuant to this\nSection 3, Employer shall, upon Employee request, compensate Employee at a reasonable rate for the time actually spent by Employee at\nEmployer's request rendering such cooperation. The provisions of this Section 3 are in addition to any other written agreements on this subject that\nEmployee may have with Employer or the Company, or any of their respective subsidiaries or affiliates and are not meant to and do not excuse any\nadditional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe\nterms hereof shall not in any event constitute "Good Reason" as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the "Biosite Severance Plan") prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the "Option Consideration") In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein.\n8\nEmployee acknowledges that this Section 5(a) is in lieu of any benefits to which the Employee may be entitled under (i) Section 4(a)(1)(iii) of the\nBiosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee's current rate of base salary ($459,251) (the "Current Base\nSalary"), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall\nbe\npaid\nupon\nthe\nfirst\nto\noccur\nof\n(i)\nthe\nsix\nmonth\nanniversary\nof\nthe\nEffective\nTime\nor\n(ii)\nthe\ntermination\nof\nthe\nEmployee's\nemployment\nby\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the "Transition Period"). For\npurposes of this Agreement only, "Good Cause" means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than a full-time basis, or perform work that is\nother than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee acknowledges that this\nSection 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite Severance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee's Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee's Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee's employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee's "Negotiated Bonus" is an amount equal to 50% of the Employee's Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(ii) of the Biosite Severance Plan remains in full force and effect.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee's separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the "Code"), the Employee is considered a "specified employee" within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest, penalties and additional tax imposed pursuant to\nSection 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be payable\nor\nbenefit\nshall be provided prior to the date that is the earliest of (i) six months and one day after the Employee's date of termination, (ii) the Employee's\ndeath, or (iii) such other date as will cause such payment not to be subject to such interest, penalties and additional tax, and the initial payment\nor\nprovision of benefit shall include a catch-up\n9\namount covering amounts that would otherwise have been paid during the first six-month period but for the application of this Section 6. The parties\nintend that this Agreement will be administered in accordance with Section 409A of the Code. The parties agree that this Agreement may be\namended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and\nregulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and\nother\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person\nor\nentity without the prior written consent of Employer and the Company.\n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas\namended\nhereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10. Severability.. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n10\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee's employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid\nhis\nor its reasonable attorneys' fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator's fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL INNOVATIONS, INC.\nA Delaware corporation\nBy:\n/s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy: /s/ Chris Twomey\nName: Chris Twomey\nTitle: Senior VP Finance, CFO\nKENNETH BUECHLER\n/s/ Kenneth Buechler\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n12\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n"(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2)\nResult from any work performed by the employee for the employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."\n13	EX-10.2 4 dex102.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nKENNETH F. BUECHLER\nExhibit 10.2\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the “Agreement”) entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Company”) and, BIOSITE\nINCORPORATED, a Delaware corporation (the “Employer”), on the one hand, and Kenneth Buechler, an individual, who is a resident of and\nemployed in the State of California (“Employee”), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the “Merger Agreement”), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 256,993 shares of Common Stock of Employer and has options to purchase 362,896 shares of Common Stock of\nEmployer (the “Employee Options”), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property Rights.\n(a) Definition of “Inventions.” As used herein, the term “Inventions” shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee’s employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), and that Employer is to be the “author”\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment is\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. “Trade Secrets” shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company to\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe sole option of Employer, bear Employer’s patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f) Further Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer’s reasonable\nrequest and at Employer’s expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer’s rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer’s exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer’s rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee’s technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer’s request rendering such assistance.\n(g) Power of Attorney. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee’s possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee’s unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. “Confidential Information” shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer’s request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating to\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n4\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer’s and the Company’s interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n“Restricted Period”), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a “Competitor” is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the “Biosite Business”); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company, or\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the “beneficial ownership” by Employee, either individually or as a member of a “group,” as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the “Exchange Act”), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities, compensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and in\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee’s responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee’s\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase of the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party Beneficiaries. Employer’s parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee’s obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer’s Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as “Attorneys”) in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to\n7\nthe period of Employee’s employment with Employer. Employee’s duty of cooperation shall include, but shall not be limited to, (a) meeting with\nAttorneys by telephone or in person at mutually convenient times and places in order to state truthfully Employee’s knowledge of the matters at issue\nand recollection of events; (b) appearing at Attorneys’ request (and, to the extent reasonably possible, at a time convenient to Employee that does not\nconflict with the needs or requirements of Employee’s then current employer) as a witness at depositions, trials or other proceedings, without the\nnecessity of a subpoena, in order to state truthfully Employee’s knowledge of the matters at issue; and (c) signing at Attorneys’ request declarations\nor affidavits that truthfully state the matters of which Employee has knowledge. Employer shall promptly reimburse Employee for Employee’s actual\nand reasonable travel and other out-of-pocket expenses that Employee may incur in cooperating with Attorneys pursuant to this Section 3. In\naddition, to the extent that, after the termination of Employee’s employment for any reason, Employee provides cooperation pursuant to this\nSection 3, Employer shall, upon Employee request, compensate Employee at a reasonable rate for the time actually spent by Employee at\nEmployer’s request rendering such cooperation. The provisions of this Section 3 are in addition to any other written agreements on this subject that\nEmployee may have with Employer or the Company, or any of their respective subsidiaries or affiliates and are not meant to and do not excuse any\nadditional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute “Good Reason” as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the “Biosite Severance Plan”) prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the “Option Consideration”). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein.\n8\nEmployee acknowledges that this Section 5(a) is in lieu of any benefits to which the Employee may be entitled under (i) Section 4(a)(1)(iii) of the\nBiosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee’s current rate of base salary ($459,251) (the “Current Base\nSalary”), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee’s employment by\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the “Transition Period”). For\npurposes of this Agreement only, “Good Cause” means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than a full-time basis, or perform work that is\nother than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee acknowledges that this\nSection 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite Severance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee’s Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee’s Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee’s employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee’s “Negotiated Bonus” is an amount equal to 50% of the Employee’s Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(ii) of the Biosite Severance Plan remains in full force and effect.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee’s separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee is considered a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest, penalties and additional tax imposed pursuant to\nSection 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be payable or benefit\nshall be provided prior to the date that is the earliest of (i) six months and one day after the Employee’s date of termination, (ii) the Employee’s\ndeath, or (iii) such other date as will cause such payment not to be subject to such interest, penalties and additional tax, and the initial payment or\nprovision of benefit shall include a catch-up\n9\namount covering amounts that would otherwise have been paid during the first six-month period but for the application of this Section 6. The parties\nintend that this Agreement will be administered in accordance with Section 409A of the Code. The parties agree that this Agreement may be\namended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and\nregulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S . Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n10\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee’s employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys’ fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator’s fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL INNOVATIONS, INC.\nA Delaware corporation\nBy: /s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy: /s/ Chris Twomey\nName: Chris Twomey\nTitle: Senior VP Finance, CFO\nKENNETH BUECHLER\n/s/ Kenneth Buechler\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n12\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\n13
435a0f577af080017a53be085d366971.pdf	effective_date jurisdiction party term	EX-10 .17 2 nke-5312018xexhibit1017.htm EXHIBIT 10.17\nEXHIBIT 10.17\nEmployee ID: _________________\nStart Date: ___________________\nHiring Manager: _______________\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\n________________\n(“EMPLOYEE”)\nand\nNIKE, Inc., and its parent, divisions, subsidiaries, affiliates, successors and assigns (“NIKE”):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon EMPLOYEE's bona fide\nadvancement with NIKE and is a condition of such advancement. Employee acknowledges that he/she was\ninformed in a written job offer at least two weeks before starting work in his/her new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nis in a position to develop confidential information peculiar to NIKE's business and not generally known to\nthe public as defined below ("Protected Information"). It is anticipated that EMPLOYEE will continue to be\nexposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company, and this\nAgreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the\ncompany or it is superseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive, and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected information of NIKE can be\nused to NIKE’s detriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete\n(a) Competition Restriction. During EMPLOYEE’s employment at NIKE, under the terms of any employment\ncontract or otherwise, and for one (1) year thereafter (the "Restriction Period"), EMPLOYEE will not directly\nor indirectly own, manage, control or participate in the ownership, management or control of, or be employed\nby, consult for or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports\nequipment, sports electronics/technology and sports accessories business, or any other business that\ndirectly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a "Competitor"). This\nprovision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically\nprovided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period\nshall automatically toll from the date of the first breach, and all subsequent breaches, until the resolution of\nthe breach through private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement, judicial or other resolution. NIKE shall not be\nobligated to pay EMPLOYEE the additional compensation described in paragraph 1.1 below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE\nreceives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving EMPLOYEE seven (7) days' prior notice of\nsuch election. In the event all or a portion of the Restriction Period is waived or the definition of Competitor is\nlimited, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to\ncompete has been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above,\nshould NIKE terminate EMPLOYEE's employment without cause and elect to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\none hundred percent (100%) of EMPLOYEE's last monthly base salary. Except where prohibited by law, if\nNIKE terminates EMPLOYEE for "cause," no additional consideration will be owed to EMPLOYEE under this\nAgreement, and the covenant not to compete will remain enforceable. For purposes of this Agreement only,\n"cause" shall mean (i) insubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such\ninvolvement in illegal activities violates NIKE policies, places NIKE at risk or has or could damage NIKE's\nreputation in the community or any of its related or subsidiary companies, (iv) violation of NIKE's anti-\nharassment or anti-discrimination policy or (v) gross neglect of EMPLOYEE'S duties or willful misconduct\nthat, in either case, results in economic harm to NIKE or harm to NIKE's reputation. Nothing in this\nparagraph or Agreement alters the employment-at-will relationship between NIKE and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\nthe greater of fifty percent (50%) of EMPLOYEE's last monthly base salary or the equivalent of one-twelfth\n(1/12) of fifty percent of the median family income for a four-person family in the state where EMPLOYEE\nresides, as determined by the U.S . Census Bureau for the most recent year available at the time of\nEMPLOYEE's termination. The first payment to EMPLOYEE of additional consideration shall follow on the\nlast business day of the month after NIKE's election to enforce the non-competition agreement. Subsequent\npayments during the Restriction Period shall be payable monthly on the last business day of the month in\naccordance with NIKE's payroll practices.\n(e) Withholding and Offset. NIKE reserves the right to withhold from Additional Consideration payable to\nEMPLOYEE all federal, state and local taxes as shall be required, as well as any other amounts authorized\nor required by NIKE policy. NIKE reserves the right, exercisable in its sole discretion, to reduce the amount\nof Additional Consideration by amounts that EMPLOYEE owes NIKE, including but not limited to any\npayments due to NIKE in accordance\nwith the NIKE Tax Equalization Policy if EMPLOYEE is employed as a transferee during his or her\nemployment with NIKE. Employee agrees that notwithstanding the amount of any withholding and/or offset,\neven in an amount that reduces payments of Additional Consideration to zero dollars ($0.00), the covenant\nnot to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts that\nEMPLOYEE owes to NIKE, EMPLOYEE remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name\nof EMPLOYEE's new employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any\nsubsequent employer during the Restriction Period, wherever located and regardless of whether such employer\nis a competitor of NIKE.\n3. Non-Disclosure Agreement\n(a) Protected Information Defined. "Protected Information" shall mean all proprietary information, in whatever\nform and format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep\nconfidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning\nNIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without\nlimiting the foregoing, Protected Information includes trade secrets and competitively sensitive business or\nprofessional information (regardless of whether such information constitutes a trade secret) relating to\nNIKE's research and development activities, its intellectual property and the filing or pendency of patent\napplications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and\nvendor lists, contract factory lists, pricing information, manufacturing plans, business and marketing plans or\nstrategy, product development plans, product launch plans, financial information, sales information, methods\nof operation, manufacturing processes and methods, products and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE.\nSpecifically, EMPLOYEE shall be permitted to retain as part of his or her personal portfolio copies of\nEMPLOYEE's original artwork and designs, provided EMPLOYEE presents those personal portfolio copies\nto his or her supervisor for review and approval and provided the artwork or designs have become part of the\npublic domain. In any dispute between the parties with respect to this exclusion, the burden of proof will be\non EMPLOYEE, and such proof will be by clear and convincing evidence.\n(c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years\nthereafter, EMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time,\ndirectly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the\nprior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any\nProtected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or\ndisclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at any time, and in any event, upon termination of\nemployment, EMPLOYEE shall immediately return to NIKE all Protected\nInformation in whatever form, including tapes, notebooks, drawings, digital files or other media containing\nProtected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE's control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE\nimmediately if EMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected\nInformation by any person employed or not employed by NIKE at the time of such possession, use or\nknowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such incident and will cooperate\nwith NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged, and that amount shall\nnot be diminished by operation of any payment under paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE will not directly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will or any independent contractor working for NIKE.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration\nor benefits that EMPLOYEE directly or indirectly has realized and/or may realize as a result of or in connection\nwith any such violation (including the return of any additional consideration paid by NIKE pursuant to paragraph\n1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE's employment,\nregardless of the reason for termination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will\nbe effective unless executed in writing by both parties. No written waiver will excuse the performance of any\nact other than the act or acts specifically referred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause, and\nunenforceability of any one clause will in no way impact the enforceability of any other clause. Should any of\nthe provisions in this Agreement be found to be unreasonable or invalid by a court of competent jurisdiction,\nsuch provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon. EMPLOYEE further hereby submits to the jurisdiction\nof, and agrees that exclusive jurisdiction over and venue for, any action or proceeding arising out of or\nrelating to this Agreement shall lie in the state and federal courts located in Oregon.\nNIKE, Inc.\n__________________________\n_____________________________\nSignature\nSignature\n___________________________\n_____________________________\nName\nName\n_________________\n_____________________________\nDate\nTitle\n_____________________________\nDate	EX-10.17 2 nke-5312018xexhibit1017.htm EXHIBIT 10.17\nEXHIBIT 10.17\nEmployee ID:\nStart Date:\nHiring Manager:\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\n(“EMPLOYEE”)\nand\nNIKE, Inc., and its parent, divisions, subsidiaries, affiliates, successors and assigns (“NIKE"):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon EMPLOYEE's bona fide\nadvancement with NIKE and is a condition of such advancement. Employee acknowledges that he/she was\ninformed in a written job offer at least two weeks before starting work in his/her new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nis in a position to develop confidential information peculiar to NIKE's business and not generally known to\nthe public as defined below ("Protected Information"). It is anticipated that EMPLOYEE will continue to be\nexposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company, and this\nAgreement will remain in effect in the event EMPLOYEE advances and untii EMPLOYEE leaves the\ncompany or it is superseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive, and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected information of NIKE can be\nused to NIKE'’s detriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete\n(@) Competition Restriction. During EMPLOYEE's employment at NIKE, under the terms of any employment\ncontract or otherwise, and for one (1) year thereafter (the "Restriction Period"), EMPLOYEE will not directly\nor indirectly own, manage, control or participate in the ownership, management or control of, or be employed\nby, consult for or be connected in any manner\n(b)\n()\n(d)\n(e)\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports\nequipment, sports electronics/technology and sports accessories business, or any other business that\ndirectly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a "Competitor"). This\nprovision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically\nprovided below.\nExtension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period\nshall automatically toll from the date of the first breach, and all subsequent breaches, until the resolution of\nthe breach through private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement, judicial or other resolution. NIKE shall not be\nobligated to pay EMPLOYEE the additional compensation described in paragraph 1.1 below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE\nreceives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\nWaiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving EMPLOYEE seven (7) days' prior notice of\nsuch election. In the event all or a portion of the Restriction Period is waived or the definition of Competitor is\nlimited, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to\ncompete has been waived.\nAdditional Consideration. As additional consideration for the covenant not to compete described above,\nshould NIKE terminate EMPLOYEE's employment without cause and elect to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\none hundred percent (100%) of EMPLOYEE's last monthly base salary. Except where prohibited by law, if\nNIKE terminates EMPLOYEE for "cause," no additional consideration will be owed to EMPLOYEE under this\nAgreement, and the covenant not to compete will remain enforceable. For purposes of this Agreement only,\n"cause" shall mean (i) insubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such\ninvolvement in illegal activities violates NIKE policies, places NIKE at risk or has or could damage NIKE's\nreputation in the community or any of its related or subsidiary companies, (iv) violation of NIKE's anti-\nharassment or anti-discrimination policy or (v) gross neglect of EMPLOYEE'S duties or willful misconduct\nthat, in either case, results in economic harm to NIKE or harm to NIKE's reputation. Nothing in this\nparagraph or Agreement alters the employment-at-will relationship between NIKE and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\nthe greater of fifty percent (50%) of EMPLOYEE's last monthly base salary or the equivalent of one-twelfth\n(1/12) of fifty percent of the median family income for a four-person family in the state where EMPLOYEE\nresides, as determined by the U.S. Census Bureau for the most recent year available at the time of\nEMPLOYEE's termination. The first payment to EMPLOYEE of additional consideration shall follow on the\nlast business day of the month after NIKE's election to enforce the non-competition agreement. Subsequent\npayments during the Restriction Period shall be payable monthly on the last business day of the month in\naccordance with NIKE's payroll practices.\nWithholding and Offset. NIKE reserves the right to withhold from Additional Consideration payable to\nEMPLOYEE all federal, state and local taxes as shall be required, as well as any other amounts authorized\nor required by NIKE policy. NIKE reserves the right, exercisable in its sole discretion, to reduce the amount\nof Additional Consideration by amounts that EMPLOYEE owes NIKE, including but not limited to any\npayments due to NIKE in accordance\nwith the NIKE Tax Equalization Policy if EMPLOYEE is employed as a transferee during his or her\nemployment with NIKE. Employee agrees that notwithstanding the amount of any withholding and/or offset,\neven in an amount that reduces payments of Additional Consideration to zero dollars ($0.00), the covenant\nnot to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts that\nEMPLOYEE owes to NIKE, EMPLOYEE remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name\nof EMPLOYEE's new employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any\nsubsequent employer during the Restriction Period, wherever located and regardless of whether such employer\nis a competitor of NIKE.\n3. Non-Disclosure Agreement\n(@) Protected Information Defined. "Protected Information” shall mean all proprietary information, in whatever\nform and format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep\nconfidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning\nNIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without\nlimiting the foregoing, Protected Information includes trade secrets and competitively sensitive business or\nprofessional information (regardless of whether such information constitutes a trade secret) relating to\nNIKE's research and development activities, its intellectual property and the filing or pendency of patent\napplications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and\nvendor lists, contract factory lists, pricing information, manufacturing plans, business and marketing plans or\nstrategy, product development plans, product launch plans, financial information, sales information, methods\nof operation, manufacturing processes and methods, products and personnel information.\n(b)  Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE.\nSpecifically, EMPLOYEE shall be permitted to retain as part of his or her personal portfolio copies of\nEMPLOYEE's original artwork and designs, provided EMPLOYEE presents those personal portfolio copies\nto his or her supervisor for review and approval and provided the artwork or designs have become part of the\npublic domain. In any dispute between the parties with respect to this exclusion, the burden of proof will be\non EMPLOYEE, and such proof will be by clear and convincing evidence.\n(c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years\nthereafter, EMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time,\ndirectly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the\nprior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any\nProtected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or\ndisclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4, Return of Protected Information. At the request of NIKE at any time, and in any event, upon termination of\nemployment, EMPLOYEE shall immediately return to NIKE all Protected\nInformation in whatever form, including tapes, notebooks, drawings, digital files or other media containing\nProtected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE's control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE\nimmediately if EMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected\nInformation by any person employed or not employed by NIKE at the time of such possession, use or\nknowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such incident and will cooperate\nwith NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged, and that amount shall\nnot be diminished by operation of any payment under paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE will not directly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will or any independent contractor working for NIKE.\n7. Accounting_ of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration\nor benefits that EMPLOYEE directly or indirectly has realized and/or may realize as a result of or in connection\nwith any such violation (including the return of any additional consideration paid by NIKE pursuant to paragraph\n1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions.\n(@) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE's employment,\nregardless of the reason for termination.\n(b)  Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will\nbe effective unless executed in writing by both parties. No written waiver will excuse the performance of any\nact other than the act or acts specifically referred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause, and\nunenforceability of any one clause will in no way impact the enforceability of any other clause. Should any of\nthe provisions in this Agreement be found to be unreasonable or invalid by a court of competent jurisdiction,\nsuch provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d)  Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon. EMPLOYEE further hereby submits to the jurisdiction\nof, and agrees that exclusive jurisdiction over and venue for, any action or proceeding arising out of or\nrelating to this Agreement shall lie in the state and federal courts located in Oregon.\nNIKE, Inc.\n \n \nSignature Signature\n \n \nName Name\n \nDate Title\n \nDate	EX-10.17 2 nke-5312018xexhibit1017.htm EXHIBIT 10.17\nEXHIBIT 10.17\nEmployee ID:\nStart Date:\nHiring Manager:\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\n("EMPLOYEE")\nand\nNIKE, Inc., and its parent, divisions, subsidiaries, affiliates, successors and assigns ("NIKE"):\nRECITALS:\nA.\nThis Covenant Not to Compete and Non-Disclosure Agreement is executed upon EMPLOYEE's bona fide\nadvancement\nwith\nNIKE\nand\nis\na\ncondition\nof\nsuch\nadvancement.\nEmployee\nacknowledges\nthat\nhe/she\nwas\ninformed in a written job offer at least two weeks before starting work in his/her new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB.\nOver the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nis in a position to develop confidential information peculiar to NIKE's business and not generally known\nto\nthe public as defined below ("Protected Information"). It is anticipated that EMPLOYEE will continue to be\nexposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company, and this\nAgreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the\ncompany or it is superseded by a new written agreement executed by the parties.\nC.\nThe nature of NIKE's business is highly competitive, and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure.\nD.\nNIKE makes use of its Protected Information throughout the world. Protected information of NIKE can be\nused to NIKE's detriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1.\nCovenant Not to Compete\n(a) Competition Restriction. During EMPLOYEE'S employment at NIKE, under the terms of any employment\ncontract or otherwise, and for one (1) year thereafter (the "Restriction Period"), EMPLOYEE will not directly\nor indirectly own, manage, control or participate in the ownership, management or control of, or be employed\nby, consult for or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports\nequipment, sports electronics/technology and sports accessories business, or any other business that\ndirectly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a "Competitor"). This\nprovision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically\nprovided below.\n(b)\nExtension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period\nshall automatically toll from the date of the first breach, and all subsequent breaches, until the resolution of\nthe breach through private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement, judicial or other resolution. NIKE shall not be\nobligated to pay EMPLOYEE the additional compensation described in paragraph 1.1 below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE\nreceives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c)\nWaiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving EMPLOYEE seven (7) days' prior notice of\nsuch election. In the event all or a portion of the Restriction Period is waived or the definition of Competitor\nis\nlimited, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to\ncompete has been waived.\n(d)\nAdditional Consideration. As additional consideration for the covenant not to compete described above,\nshould NIKE terminate EMPLOYEE's employment without cause and elect to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\none hundred percent (100%) of EMPLOYEE's last monthly base salary. Except where prohibited by law, if\nNIKE terminates EMPLOYEE for "cause," no additional consideration will be owed to EMPLOYEE under this\nAgreement, and the covenant not to compete will remain enforceable. For purposes of this Agreement only,\n"cause" shall mean (i) insubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such\ninvolvement in illegal activities violates NIKE policies, places NIKE at risk or has or could damage NIKE's\nreputation in the community or any of its related or subsidiary companies, (iv) violation of NIKE's anti-\nharassment or anti-discrimination policy or (v) gross neglect of EMPLOYEE'S duties or willful misconduct\nthat, in either case, results in economic harm to NIKE or harm to NIKE's reputation. Nothing in this\nparagraph or Agreement alters the employment-at-wil relationship between NIKE and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\nthe\ngreater of fifty percent (50%) of EMPLOYEE's last monthly base salary or the equivalent of one-twelfth\n(1/12) of fifty percent of the median family income for a four-person family in the state where EMPLOYEE\nresides, as determined by the U.S. Census Bureau for the most recent year available at the time of\nEMPLOYEE's termination. The first payment to EMPLOYEE of additional consideration shall follow on the\nlast business day of the month after NIKE's election to enforce the non-competition agreement. Subsequent\npayments during the Restriction Period shall be payable monthly on the last business day of the month in\naccordance with NIKE's payroll practices.\n(e)\nWithholding and Offset. NIKE reserves the right to withhold from Additional Consideration payable to\nEMPLOYEE all federal, state and local taxes as shall be required, as well as any other amounts authorized\nor required by NIKE policy. NIKE reserves the right, exercisable in its sole discretion, to reduce the amount\nof\nAdditional Consideration by amounts that EMPLOYEE owes NIKE, including but not limited to any\npayments due to NIKE in accordance\nwith the NIKE Tax Equalization Policy if EMPLOYEE is employed as a transferee during his or her\nemployment with NIKE. Employee agrees that notwithstanding the amount of any withholding and/or offset,\neven in an amount that reduces payments of Additional Consideration to zero dollars ($0.00), the covenant\nnot to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts that\nEMPLOYEE owes to NIKE, EMPLOYEE remains obligated for the balance of the amounts owed.\n2.\nSubsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name\nof EMPLOYEE's new employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any\nsubsequent employer during the Restriction Period, wherever located and regardless of whether such employer\nis a competitor of NIKE.\n3.\nNon-Disclosure Agreement\n(a)\nProtected Information Defined. "Protected Information" shall mean all proprietary information, in whatever\nform and format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep\nconfidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning\nNIKE projects and interna NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without\nlimiting the foregoing, Protected Information includes trade secrets and competitively sensitive business or\nprofessional information (regardless of whether such information constitutes a trade secret) relating to\nNIKE's research and development activities, its intellectual property and the filing or pendency of patent\napplications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and\nvendor lists, contract factory lists, pricing information, manufacturing plans, business and marketing plans or\nstrategy, product development plans, product launch plans, financial information, sales information, methods\nof operation, manufacturing processes and methods, products and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE.\nSpecifically, EMPLOYEE shall be permitted to retain as part of his or her personal portfolio copies of\nEMPLOYEE's original artwork and designs, provided EMPLOYEE presents those personal portfolio copies\nto his or her supervisor for review and approval and provided the artwork or designs have become part of the\npublic domain. In any dispute between the parties with respect to this exclusion, the burden of proof will be\non EMPLOYEE, and such proof will be by clear and convincing evidence.\n(c)\nEmployee's Obligations. During the period of employment by NIKE and for a period of two (2) years\nthereafter, EMPLOYEE will hold in confidence and protect all Protected Information and wil not, at any time,\ndirectly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the\nprior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any\nProtected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or\ndisclosure, intentiona or inadvertent, of Protected Information in violation of this Agreement.\n4.\nReturn of Protected Information. At the request of NIKE at any time, and in any event, upon termination of\nemployment, EMPLOYEE shall immediately return to NIKE all Protected\nInformation in whatever form, including tapes, notebooks, drawings, digital files or other media containing\nProtected Information, and all copies thereof, then in EMPLOYEE'S possession or under EMPLOYEE'S control.\n5.\nUnauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE\nimmediately if EMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected\nInformation by any person employed or not employed by NIKE at the time of such possession, use or\nknowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such incident and will cooperate\nwith NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged, and that amount shall\nnot be diminished by operation of any payment under paragraph 1(d) of this Agreement.\n6.\non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE wil not directly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will or any independent contractor working for NIKE.\n7.\nAccounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration\nor benefits that EMPLOYEE directly or indirectly has realized and/or may realize as a result of or in connection\nwith any such violation (including the return of any additional consideration paid by NIKE pursuant to paragraph\n1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8.\nGeneral Provisions.\n(a)\nSurvival. This Agreement shall continue in effect after the termination of EMPLOYEE'S employment,\nregardless of the reason for termination.\n(b)\nWaiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement wil\nbe effective unless executed in writing by both parties No written waiver will excuse the performance of any\nact other than the act or acts specifically referred to therein.\n(c)\nSeverability. Each provision herein wil be treated as a separate and independent clause, and\nunenforceability of any one clause will in no way impact the enforceability of any other clause. Should any of\nthe provisions in this Agreement be found to be unreasonable or invalid by a court of competent jurisdiction,\nsuch provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d)\nApplicable LawlJurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon. EMPLOYEE further hereby submits to the jurisdiction\nof, and agrees that exclusive jurisdiction over and venue for, any action or proceeding arising out of or\nrelating to this Agreement shall lie in the state and federal courts located in Oregon.\nNIKE, Inc.\nSignature\nSignature\nName\nName\nDate\nTitle\nDate	EX-10 .17 2 nke-5312018xexhibit1017.htm EXHIBIT 10.17\nEXHIBIT 10.17\nEmployee ID: _________________\nStart Date: ___________________\nHiring Manager: _______________\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\n________________\n(“EMPLOYEE”)\nand\nNIKE, Inc., and its parent, divisions, subsidiaries, affiliates, successors and assigns (“NIKE”):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon EMPLOYEE's bona fide\nadvancement with NIKE and is a condition of such advancement. Employee acknowledges that he/she was\ninformed in a written job offer at least two weeks before starting work in his/her new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nis in a position to develop confidential information peculiar to NIKE's business and not generally known to\nthe public as defined below ("Protected Information"). It is anticipated that EMPLOYEE will continue to be\nexposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company, and this\nAgreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the\ncompany or it is superseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive, and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected information of NIKE can be\nused to NIKE’s detriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete\n(a) Competition Restriction. During EMPLOYEE’s employment at NIKE, under the terms of any employment\ncontract or otherwise, and for one (1) year thereafter (the "Restriction Period"), EMPLOYEE will not directly\nor indirectly own, manage, control or participate in the ownership, management or control of, or be employed\nby, consult for or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports\nequipment, sports electronics/technology and sports accessories business, or any other business that\ndirectly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a "Competitor"). This\nprovision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically\nprovided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period\nshall automatically toll from the date of the first breach, and all subsequent breaches, until the resolution of\nthe breach through private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement, judicial or other resolution. NIKE shall not be\nobligated to pay EMPLOYEE the additional compensation described in paragraph 1.1 below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE\nreceives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving EMPLOYEE seven (7) days' prior notice of\nsuch election. In the event all or a portion of the Restriction Period is waived or the definition of Competitor is\nlimited, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to\ncompete has been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above,\nshould NIKE terminate EMPLOYEE's employment without cause and elect to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\none hundred percent (100%) of EMPLOYEE's last monthly base salary. Except where prohibited by law, if\nNIKE terminates EMPLOYEE for "cause," no additional consideration will be owed to EMPLOYEE under this\nAgreement, and the covenant not to compete will remain enforceable. For purposes of this Agreement only,\n"cause" shall mean (i) insubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such\ninvolvement in illegal activities violates NIKE policies, places NIKE at risk or has or could damage NIKE's\nreputation in the community or any of its related or subsidiary companies, (iv) violation of NIKE's anti-\nharassment or anti-discrimination policy or (v) gross neglect of EMPLOYEE'S duties or willful misconduct\nthat, in either case, results in economic harm to NIKE or harm to NIKE's reputation. Nothing in this\nparagraph or Agreement alters the employment-at-will relationship between NIKE and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\nthe greater of fifty percent (50%) of EMPLOYEE's last monthly base salary or the equivalent of one-twelfth\n(1/12) of fifty percent of the median family income for a four-person family in the state where EMPLOYEE\nresides, as determined by the U.S . Census Bureau for the most recent year available at the time of\nEMPLOYEE's termination. The first payment to EMPLOYEE of additional consideration shall follow on the\nlast business day of the month after NIKE's election to enforce the non-competition agreement. Subsequent\npayments during the Restriction Period shall be payable monthly on the last business day of the month in\naccordance with NIKE's payroll practices.\n(e) Withholding and Offset. NIKE reserves the right to withhold from Additional Consideration payable to\nEMPLOYEE all federal, state and local taxes as shall be required, as well as any other amounts authorized\nor required by NIKE policy. NIKE reserves the right, exercisable in its sole discretion, to reduce the amount\nof Additional Consideration by amounts that EMPLOYEE owes NIKE, including but not limited to any\npayments due to NIKE in accordance\nwith the NIKE Tax Equalization Policy if EMPLOYEE is employed as a transferee during his or her\nemployment with NIKE. Employee agrees that notwithstanding the amount of any withholding and/or offset,\neven in an amount that reduces payments of Additional Consideration to zero dollars ($0.00), the covenant\nnot to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts that\nEMPLOYEE owes to NIKE, EMPLOYEE remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name\nof EMPLOYEE's new employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any\nsubsequent employer during the Restriction Period, wherever located and regardless of whether such employer\nis a competitor of NIKE.\n3. Non-Disclosure Agreement\n(a) Protected Information Defined. "Protected Information" shall mean all proprietary information, in whatever\nform and format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep\nconfidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning\nNIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without\nlimiting the foregoing, Protected Information includes trade secrets and competitively sensitive business or\nprofessional information (regardless of whether such information constitutes a trade secret) relating to\nNIKE's research and development activities, its intellectual property and the filing or pendency of patent\napplications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and\nvendor lists, contract factory lists, pricing information, manufacturing plans, business and marketing plans or\nstrategy, product development plans, product launch plans, financial information, sales information, methods\nof operation, manufacturing processes and methods, products and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE.\nSpecifically, EMPLOYEE shall be permitted to retain as part of his or her personal portfolio copies of\nEMPLOYEE's original artwork and designs, provided EMPLOYEE presents those personal portfolio copies\nto his or her supervisor for review and approval and provided the artwork or designs have become part of the\npublic domain. In any dispute between the parties with respect to this exclusion, the burden of proof will be\non EMPLOYEE, and such proof will be by clear and convincing evidence.\n(c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years\nthereafter, EMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time,\ndirectly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the\nprior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any\nProtected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or\ndisclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at any time, and in any event, upon termination of\nemployment, EMPLOYEE shall immediately return to NIKE all Protected\nInformation in whatever form, including tapes, notebooks, drawings, digital files or other media containing\nProtected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE's control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE\nimmediately if EMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected\nInformation by any person employed or not employed by NIKE at the time of such possession, use or\nknowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such incident and will cooperate\nwith NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged, and that amount shall\nnot be diminished by operation of any payment under paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE will not directly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will or any independent contractor working for NIKE.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration\nor benefits that EMPLOYEE directly or indirectly has realized and/or may realize as a result of or in connection\nwith any such violation (including the return of any additional consideration paid by NIKE pursuant to paragraph\n1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE's employment,\nregardless of the reason for termination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will\nbe effective unless executed in writing by both parties. No written waiver will excuse the performance of any\nact other than the act or acts specifically referred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause, and\nunenforceability of any one clause will in no way impact the enforceability of any other clause. Should any of\nthe provisions in this Agreement be found to be unreasonable or invalid by a court of competent jurisdiction,\nsuch provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon. EMPLOYEE further hereby submits to the jurisdiction\nof, and agrees that exclusive jurisdiction over and venue for, any action or proceeding arising out of or\nrelating to this Agreement shall lie in the state and federal courts located in Oregon.\nNIKE, Inc.\n__________________________\n_____________________________\nSignature\nSignature\n___________________________\n_____________________________\nName\nName\n_________________\n_____________________________\nDate\nTitle\n_____________________________\nDate
435fb4cdacfab964d3f243d3002a903b.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 10 d476767dex99d2.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nOctober 15, 2012\nIn connection with our mutual consideration of a possible business transaction (the “Potential Transaction”) between JLL Partners, Inc., (the\n“Receiving Party”) and BioClinica, Inc., a Delaware corporation (the “Company” or the “Furnishing Party”), the Receiving Party has requested\ncertain financial and other information concerning the business and affairs of the Company. The Company, from time to time, may furnish to the\nReceiving Party certain Review Material (as defined below) as the Furnishing Party, in its sole and absolute discretion, may determine to furnish\nfrom time to time. As a condition to furnishing and receiving such Review Material, we each agree to comply with the terms and conditions set forth\nbelow in this agreement (this “Agreement”):\n1. Review Material.\nThe term “Review Material” includes (a) all information that the Furnishing Party or any of its Representatives (as defined below), on behalf\nof the Furnishing Party, will furnish to the Receiving Party or its Representatives (in written, oral, visual, electronic or other form) on or after the\ndate of this Agreement, including the terms of the Potential Transaction, and (b) all notes, analyses, compilations, studies, interpretations or other\ndocuments or materials prepared by the Receiving Party or its Representatives which contain, reflect or are based, in whole or in part, upon such\ninformation furnished to the Receiving Party or its Representatives by the Furnishing Party. For purposes hereof, “Representatives” shall mean a\nparty’s affiliates (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and its and\ntheir directors, officers, members, partners, employees, agents, representatives, consultants, accountants, lenders, attorneys and advisors, together\nwith any current or potential financing sources involved in connection with the Potential Transaction.\n2. Use and Disclosure of Review Material.\n(a) Review Material shall at all times be kept strictly confidential and shall not be used or disclosed by the Receiving Party other than as\npermitted hereunder.\n(b) The Receiving Party shall use the Review Material only for the purpose of evaluating, negotiating and implementing the Potential\nTransaction and shall not use the Review Material in any way in violation of this Agreement. The Receiving Party may only disclose Review\nMaterial to persons within its and its Representatives’ organizations who (i) are assisting in Receiving Party’s evaluation, negotiation or\nimplementation of the Potential Transaction, and (ii) are informed in writing by the Receiving Party of the confidential nature of such information\nand the undertakings contained herein, unless such Representative’s employer has already executed a letter on behalf of its employees to treat such\ninformation confidentially or such Representative owes a legal duty to the Receiving Party to treat such information confidentially. Notwithstanding\nthe foregoing, the Receiving Party shall be responsible for any breach of this Agreement by its Representatives.\n(c) The Receiving Party agrees that, without the prior written consent of the Company, the Receiving Party will not (and will direct its\nRepresentatives not to) disclose to any other person aside from its Representatives the fact that the Receiving Party is considering a Potential\nTransaction with the Company, that this Agreement exists, that the Review Material has been made available to the Receiving Party, that discussions\nor negotiations are taking place concerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect\nthereto (including the status thereof), except in accordance with the procedures set forth in paragraph (d) below. Likewise, the Furnishing Party\nagrees that, without the prior written consent of the Company, the Furnishing Party will not (and will direct its Representatives not to) disclose to any\nother person aside from its Representatives the fact that the Receiving Party is considering a Potential Transaction with the Company, that this\nAgreement exists, that the Review Material has been made available to the Receiving Party, that discussions or negotiations are taking place\nconcerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof), except in accordance with the procedures set forth in paragraph (d) below. Without limiting the generality of the foregoing and\nnotwithstanding anything to the contrary contained herein, the Receiving Party further agrees that it will not, directly or indirectly, share the Review\nMaterial with or enter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or\nunderstanding, with any other person (other than its Representatives as permitted by this Agreement), including other potential bidders and equity\nfinancing sources, regarding the Potential Transaction involving the Company without the prior written consent of the Company and only upon such\nperson executing a confidentiality agreement in favor of the Company.\nFurthermore, the Receiving Party shall not enter into any agreement, arrangement or understanding, or any discussions which might lead to such\nagreement, arrangement or understanding, with any debt financing source which may reasonably be expected to limit, restrict, restrain or otherwise\nimpair in any manner, directly or indirectly, the ability of such debt financing source to provide financing or other assistance to any other party\nconsidering a potential transaction with the Company, it being agreed that such debt financing source may establish a “tree” system whereby separate\ngroups or “trees” will be formed and dedicated to you, and each other potential party, respectively, involved in the Potential Transaction, in which\ncase no violation hereunder will be deemed to have occurred. For the avoidance of any doubt, no violation of this Agreement shall be deemed to\nhave occurred to the extent such debt financing source, at its sole determination, cannot or will not establish a “tree” and, as a result, cannot or will\nnot provide financing or other assistance to any other party as a result of you entering into any agreement, arrangement or other understanding,\nwhether written or oral.\n(d) Notwithstanding anything contained in this Agreement to the contrary, if the Receiving Party or its Representatives have been\nrequested or are required (by oral questions, interrogatories, requests for information, or documents, subpoena, civil investigative demand, or similar\nprocess or by applicable law, regulation or stock exchange rule) to disclose any Review Material, the Receiving Party will notify the Furnishing\nParty within a commercially reasonable time frame in writing of such request(s) so that the Furnishing Party may seek, at its sole cost and expense,\nan appropriate protective order or other appropriate remedy or waive the Receiving Party’s compliance with the provisions of this Agreement. The\nReceiving Party agrees that it will put forth commercially reasonable efforts to cooperate with the Furnishing Party in assisting in seeking any\nprotective order or other appropriate remedy at Furnishing Party’s sole cost and expense. If, in the absence of a protective order or other appropriate\nremedy or the receipt of a waiver by the Furnishing Party, the Receiving Party or any of its Representatives are nonetheless, upon advice of counsel,\nlegally compelled to disclose Review Material or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or its\nRepresentatives may, without liability hereunder, disclose only that portion of the Review Material which such counsel advises is legally required to\nbe disclosed, provided that the Receiving Party, or its Representatives, as the case may be, exercises commercially reasonable efforts to preserve the\nconfidentiality of the Review Material, including, without limitation, by putting forth commercially reasonable efforts in cooperating with the\nFurnishing Party to assist in obtaining an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nReview Material.\n3. Limitation on Obligations. The obligations of the Receiving Party specified in Section 2 shall not apply, and the Receiving Party shall have\nno further obligations, with respect to any Review Material to the extent that (a) such Review Material was, is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement, (b) such Review Material\nwas in the possession of Receiving Party or its Representatives prior to its disclosure to the Receiving Party or its Representatives by the Furnishing\nParty or its Representatives pursuant hereto, provided that the source of such information was not known by the Receiving Party to be bound by a\ncontractual, legal or fiduciary obligation of confidentiality to the Furnishing Party with respect to such information, (c) such Review Material was, is\nor becomes available to the Receiving Party or its Representatives on a non-confidential basis from a source other than the Furnishing Party or its\nRepresentatives acting on its behalf, provided that such source is not known by Receiving Party or its Representatives to be bound by a\nconfidentiality agreement with the Furnishing Party, or (d) such Review Material has been or is subsequently independently conceived or developed\nby the Receiving Party or its Representatives without use of or reference to the Review Material.\n4. Term; Return of Review Material. Except as otherwise set forth in Section 7 or elsewhere in this Agreement, this Agreement shall have a\nterm of eighteen months. At any time upon the request of the Furnishing Party for any reason or for no reason, the Receiving Party will, within a\ncommercially reasonable time frame and at its sole option, either deliver to the Furnishing Party all Review Material provided by the Furnishing\nParty or its Representatives acting on its behalf to the Receiving Party (including all copies and summaries or synopses thereof, including, without\nlimitation, all computer and electronic files) or cause all such Review Material to be destroyed, provided, that the Receiving Party and its\nRepresentatives may retain Review Material for its files to the extent required by its respective record retention policies or to comply with legal\nand/or regulatory requirements. Such return or destruction, as applicable, of all Review Material by the Receiving Party and its Representatives shall\nbe certified by an officer of the Receiving Party in a writing delivered to the Furnishing Party. Notwithstanding the return or destruction of Review\nMaterial, the Receiving Party and the Company and their respective Representatives will continue to be bound by their obligations of confidentiality\nand other obligations hereunder for the term of this Agreement.\n5. No Commitment; No Representation or Warranty.\n(a) No contract or agreement with respect to a Potential Transaction shall be deemed to exist unless and until a definitive and binding\ncontract relating thereto has been executed and delivered (a “Definitive Agreement”), and each of the Receiving Party and the Company hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other based on the purported\nexistence of any such contract or agreement unless and until, and only to the extent that, the Receiving Party and the Company shall have entered\ninto a Definitive Agreement with respect to which a breach is alleged. The term “Definitive Agreement” does not include an executed letter of intent\nor any other preliminary written agreement, nor does it include any written or verbal agreement in principle or acceptance of an offer or bid, except\nto the extent otherwise provided therein. Neither the Receiving Party nor the Company shall have any legal obligation of any kind whatsoever with\nrespect to a possible business transaction by virtue of this Agreement or any other written or oral expression with respect to a possible business\ntransaction except, in the case of this Agreement, for the matters specifically agreed to herein. The Receiving Party further acknowledges and agrees\nthat the Company reserves the right, in it sole discretion, to reject any and all proposals made by the Receiving Party or any of its Representatives\nwith regard to a Potential Transaction between the Company and the Receiving Party, and to terminate discussions and negotiations with the\nReceiving Party at any time. The Receiving Party also acknowledges that the Company and its Representatives shall be free to conduct any process\nfor any transaction involving the Company as it shall determine in its sole discretion, including, without limitation, negotiating with any other\ninterested parties and entering into a Definitive Agreement without prior notice to the Receiving Party or its Representatives. Likewise, Receiving\nParty reserves the right to terminate discussions or negotiations with the Company at any time.\n(b) Each of the Receiving Party and the Company understands and acknowledges that neither the Furnishing Party nor its\nRepresentatives is making any representation or warranty as to the accuracy or completeness of any Review Material. Neither the Furnishing Party\nnor its Representatives shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of the Review\nMaterial. Only those representations or warranties which are made in a Definitive Agreement, when, as and if executed, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect. Furthermore, nothing contained in this Agreement nor the\nfurnishing of Review Material shall be construed as granting or conferring any rights by license or otherwise in any intellectual property of the\nFurnishing Party, except for a limited right of use as specifically set forth herein. All right, title and interest in the Review Material shall remain with\nthe Furnishing Party.\n6. Current Equity Ownership; Derivative Transactions. The Receiving Party hereby represents to the Company that, as of the date hereof, it\nand its affiliates and associates (as such terms are defined in Rule 12b-2 under the Exchange Act), together with any other person with whom it is\nacting in concert in connection with this matter or have formed a “group” within the meaning of Section 13(d)(3) of the Exchange Act (a “Group\nMember”) beneficially own in the aggregate less than 5% of the outstanding shares of Common Stock of the Company. The Receiving Party hereby\nrepresents to the Company that, as of the date hereof, no agreement, arrangement, or understanding (including without limitation, any derivative or\nshort positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) has been\nentered into by or on behalf of, and no agreement, arrangement or understanding has been made, the effect or intent of which is to mitigate loss, to\nmanage risk or to benefit from changes in the share price of any of the Company’s securities, or increase or decrease the voting power with respect to\nany of the Company’ securities, by the Receiving Party or its affiliates or associates (as such terms are defined in Rule 12b-2 under the Exchange\nAct) or any other Group Members of the Receiving Party and to which the Company is not a party. The Receiving Party hereby represents that each\nand every Group Member will be executing a copy of this Agreement, which will be promptly forwarded to the Company.\n7. Restrictions on Unsolicited Acquisition Activities. The Receiving Party acknowledges that the Review Information is being furnished to the\nReceiving Party in consideration of its agreement that the Receiving Party will not, and will direct its affiliates, directors, officers, employees and\nagents not to, directly or indirectly, for a period of one year from the date of this Agreement unless in any such case specifically invited in writing to\ndo so by the Board of Directors of the Company:\n(a) make any public announcement with respect to any proposal for, a transaction between the Company or any of its security holders\nand the Receiving Party (and/or any of the Receiving Party’s affiliates), whether or not any third parties are also involved, directly or indirectly, in\nsuch proposal or transaction, unless such proposal is directed and disclosed solely to the management of the Company and its designated\nrepresentatives, and in the case of any such proposal from or involving parties in addition to, or other than, the Receiving Party, the Company has\ngiven its advance written consent to the involvement of such additional or other parties;\n(b) other than pursuant to a prior written agreement with the Company, purchase, acquire or own, or offer to agree to purchase, acquire or\nown, directly or indirectly, any voting securities or direct or indirect rights (pursuant to an exchange, conversion, pledge or otherwise) or options to\nacquire any voting securities of the Company, except that affiliates of the Receiving Party may, in the aggregate, own beneficially or of record,\ndirectly or indirectly, up to 2.5% of the outstanding voting securities of the Company;\n(c) enter into any agreement, arrangement, or understanding (including, without limitation, any derivative or short positions, profit\ninterests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares), the effect or intent of which is\nto mitigate loss, to manage risk or to benefit from changes in the share price of any of the Company’s securities, or increase or decrease the voting\npower with respect to any of the Company’s securities;\n(d) other than pursuant to a prior written agreement with the Company, make or in way participate in, directly or indirectly, any\n“solicitation” or “proxies” (as such terms are defined or used in Regulation 14 under the Exchange Act) or become a “participant” in an “election\ncontest” (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or seek to advise or influence any\nperson with respect to the voting of any voting securities of the Company;\n(e) execute any written consent in lieu of a meeting of holders of any class of securities of the Company unless such written consent is\nsolicited by the Board of Directors of the Company;\n(f) initiate, propose or otherwise solicit shareholders for the approval of one or more stockholder proposals with respect to the Company\nas described in Rule 14a-8 under the Exchange Act or induce or attempt to induce any other person to do so;\n(g) other than pursuant to a prior written agreement with the Company, acquire or affect the control of the Company or directly or\nindirectly participate in or encourage the formation of any “group” (within the meaning of Section 13(d)(3) of the Exchange Act which owns or\nseeks to acquire ownership of voting securities of the Company, or to acquire or affect control of the Company;\n(h) call or seek to have called any meeting of the stockholders of the Company;\n(i) seek election to or seek to place a representative on the Board of Directors of the Company or seek the removal of any member of the\nBoard of Directors of the Company or a change in the composition or size of the Board of Directors of the Company;\n(j) other than pursuant to a prior written agreement with the Company, otherwise act, directly or indirectly, alone or in concert with\nothers, to seek to control or to influence in any manner the management, board of directors, policies or affairs of the Company, or propose to seek to\neffect nor negotiate with or provide financial assistance (by loan, capital contribution or otherwise) or information to any party with respect to any\nform of business combination transaction (including, without limitation, a merger, consolidation or acquisition or disposition of significant assets of\nthe Company or any other entity) with the Company or any affiliate thereof or any restructure, recapitalization or similar transaction with respect to\nthe Company or any affiliate thereof;\n(k) instigate, encourage, assist or render advice to or make any recommendation or proposal to any person or other entity to engage in\nany of the actions covered by clauses (a) through (j) of this Section 7, or render advice with respect to voting securities of the Company;\n(1) take any action, other than pursuant to a prior written agreement with the Company, that might force the Furnishing Party to make a\npublic announcement regarding any of the types of matters set forth in this Section 7;\n(m) except to the extent required by law, make any public statement (or make available to any member of the news media any\ninformation) with respect to any of the matters covered by this Section 7, or with respect to the terms and conditions of, or any of the facts related to,\nthis Agreement; or\n(n) require, other than pursuant to a prior written agreement with the Company, any waiver, modification, termination or amendment of\nthis Section 7 of the relinquishment by the Company of any rights with respect thereto.\nNothing contained in this Section 7 shall restrict the Receiving Party from making a cash tender offer for all of the outstanding capital stock of the\nCompany after such time as both (i) a third party has commenced, within the meaning of Rule 14d-2 of the Exchange Act, a cash tender offer for the\nCompany at a lower price per share than the price per share offered by the Receiving Party in its tender offer and (ii) the Company has recommended\nto its stockholders that they accept such third party’s tender offer.\n8. Rule 10b-5 Limitations. The Receiving Party and the Company each hereby acknowledges to the other that it is aware (and, if applicable,\nthat its Representatives who are apprised of this matter have been advised) that the United States securities laws prohibit any person who has\nmaterial non-public information about a company from purchasing or selling securities of such company, or from communicating such information\nto any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. Non-Solicitation of Employees. In consideration of and as a condition to the Company furnishing Review Material under this Agreement,\nthe Receiving Party agrees that for a period of eighteen months from the date of this Agreement, neither the Receiving Party nor any of its affiliates\nwho have received Review Material will, directly or indirectly, solicit to employ any of the current senior-level officers or employees of the\nCompany or its subsidiaries (so long as they are employed by the Company or its subsidiaries) without obtaining the prior written consent of the\nCompany (it being understood that any newspaper or other general solicitation not directed specifically to such person shall not be deemed to be a\nsolicitation for purposes of this provision).\n10. Conduct of Process. The Receiving Party understands and agrees that (a) all inquiries, requests for information and other communications\nwith the Company regarding the Potential Transaction shall be made only through Excel Partners, (b) the Receiving Party will not (and will direct its\nRepresentatives not to) initiate contact with parties known by it to be current employees, customers or suppliers of the Company with respect to the\nPotential Transaction, (c) the Receiving Party will not (and will direct its Representatives not to) discuss any matters relating to the Potential\nTransaction or an employee’s position with, or interest in, the Company after the transaction with any current employee of the Company without the\nprior consent of the Company, (d) the Company and its Representatives shall be free to conduct the process relating to the Potential Transaction in\nsuch manner as it in its sole discretion shall determine (including, without limitation, negotiating with any of the prospective parties and entering into\nan agreement to effect a Potential Transaction without prior notice to the Receiving Party or any other person), (e) any procedures relating to such\nsale may be changed at any time without notice to the Receiving Party or any other person and (f) the Receiving Party shall not have any rights or\nclaims whatsoever against the Company or any of Representatives arising out of or relating to the Potential Transaction (other than any rights or\nclaims arising out of any Definitive Agreement in accordance with its terms). For the avoidance of doubt, nothing herein shall prevent the Receiving\nParty or its Representatives from performing usual and customary due diligence so long as they do not disclose the existence of a Potential\nTransaction.\n11. Remedies. The Receiving Party and the Company agree that money damages may not be a sufficient remedy for any breach of this\nAgreement by it or its Representatives and that the other party shall be entitled to seek equitable relief, including an injunction and specific\nperformance, as a remedy for any such breach. The Receiving Party and the Company agree to waive any requirement for the posting of a bond in\nconnection with any such equitable relief. Such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement by the\nReceiving Party or the Company or their respective Representatives, but shall be in addition to all other remedies available at law or in equity to the\nother. In the event that either party successfully enforces its obligations hereunder, the other party shall reimburse the enforcing party for all\nreasonable costs and expenses, including reasonable attorneys’ fees, incurred by the enforcing party in this regard. To the extent that any Review\nMaterial may include materials subject to the attorney-client privilege, work-product doctrine or any other applicable privilege concerning pending\nor threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with\nrespect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not,\nwaive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work-product\ndoctrine or other applicable privilege. All Review Material that is entitled to protection under the attorney-client privilege, work-product doctrine\nand other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint-defense doctrine.\n12. As part of this agreement, Receiving Party wishes to advise the Company that it makes investments in other companies in the ordinary\ncourse of business and, as a result of such investments, such companies may be deemed to be affiliated or associated with it. In addition, certain\npersons and entities that may be deemed to be affiliated or associated with Receiving Party represent large organizations over which it has little or no\ncontrol. To the extent that it does not disclose Review Material to any such company, person or entity, the terms of this agreement shall not apply to\nsuch companies, persons or entities, and no such company, person or entity shall be deemed to have been provided with the Review Material solely\nas a result of any of Receiving Party’s Representatives (whether such person has been provided with or has knowledge of the Review Material)\nserving on the board of such company, person, or entity.\n13. Miscellaneous. This Agreement constitutes the final agreement between the parties hereto. It is the complete and exclusive expression of\nthe parties’ agreement on the subject matter of this Agreement. This Agreement supersedes all other oral or written agreements or policies relating to\nthis Agreement. No amendment of this Agreement will be effective unless it is in writing and signed by the parties. No waiver of satisfaction of a\ncondition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the\nwaiver, and no such waiver will constitute a waiver of satisfaction of any other condition or nonperformance of any other obligation. It is further\nunderstood and agreed by the Receiving Party and the Company that no failure or delay by the other party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right power or privilege hereunder. No party may assign any part of its rights or delegate any performance under this Agreement\nexcept with the other party’s prior written consent, provided that consent shall not be required for transfer or assignment pursuant to merger,\nconsolidation or sale of substantially all of the assets of a party). Any purported assignment of rights or delegation of performance in violation of this\nSection 13 is void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective heirs,\nsuccessors and assigns. The laws of the State of Delaware, without giving effect to principles of conflict of laws, govern all matters arising out of or\nrelating to this Agreement. Each party hereto consents to exclusive personal jurisdiction in the State of Delaware and voluntarily submits to the\njurisdiction of the courts of the State of Delaware in any action or proceeding with respect to this Agreement, including the federal district courts\nlocated in such State. Each party agrees that it may be served with process at its address set forth on the first page hereof. If any portion or provision\nof this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement,\nor the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be\naffected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement which will constitute our legally binding\nagreement with respect to the subject matter of this letter.\nVery truly yours,\nBioClinica, Inc.\nBy: /s/ Ted I. Kaminer\nName: Ted I. Kaminer\nTitle: CFO\nACKNOWLEDGED, AGREED AND CONFIRMED:\nJLL Partners, Inc.\nBy:\n/s/ Andrew Goldfarb\nName:\nAndrew Goldfarb\nTitle:\nVice President\nDate:\nOctober 15, 2012	EX-99.(D)(2) 10 d476767dex99d2.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nOctober 15, 2012\nIn connection with our mutual consideration of a possible business transaction (the “Potential Transaction”) between JLL Partners, Inc., (the\n“Receiving Party”) and BioClinica, Inc., a Delaware corporation (the “Company” or the “Furnishing Party”), the Receiving Party has requested\ncertain financial and other information concerning the business and affairs of the Company. The Company, from time to time, may furnish to the\nReceiving Party certain Review Material (as defined below) as the Furnishing Party, in its sole and absolute discretion, may determine to furnish\nfrom time to time. As a condition to furnishing and receiving such Review Material, we each agree to comply with the terms and conditions set forth\nbelow in this agreement (this “Agreement”):\n1. Review Material.\nThe term “Review Material” includes (a) all information that the Furnishing Party or any of its Representatives (as defined below), on behalf\nof the Furnishing Party, will furnish to the Receiving Party or its Representatives (in written, oral, visual, electronic or other form) on or after the\ndate of this Agreement, including the terms of the Potential Transaction, and (b) all notes, analyses, compilations, studies, interpretations or other\ndocuments or materials prepared by the Receiving Party or its Representatives which contain, reflect or are based, in whole or in part, upon such\ninformation furnished to the Receiving Party or its Representatives by the Furnishing Party. For purposes hereof, “Representatives” shall mean a\nparty’s affiliates (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and its and\ntheir directors, officers, members, partners, employees, agents, representatives, consultants, accountants, lenders, attorneys and advisors, together\nwith any current or potential financing sources involved in connection with the Potential Transaction.\n2. Use and Disclosure of Review Material.\n(a) Review Material shall at all times be kept strictly confidential and shall not be used or disclosed by the Receiving Party other than as\npermitted hereunder.\n(b) The Receiving Party shall use the Review Material only for the purpose of evaluating, negotiating and implementing the Potential\nTransaction and shall not use the Review Material in any way in violation of this Agreement. The Receiving Party may only disclose Review\nMaterial to persons within its and its Representatives’ organizations who (i) are assisting in Receiving Party’s evaluation, negotiation or\nimplementation of the Potential Transaction, and (ii) are informed in writing by the Receiving Party of the confidential nature of such information\nand the undertakings contained herein, unless such Representative’s employer has already executed a letter on behalf of its employees to treat such\ninformation confidentially or such Representative owes a legal duty to the Receiving Party to treat such information confidentially. Notwithstanding\nthe foregoing, the Receiving Party shall be responsible for any breach of this Agreement by its Representatives.\n(c) The Receiving Party agrees that, without the prior written consent of the Company, the Receiving Party will not (and will direct its\nRepresentatives not to) disclose to any other person aside from its Representatives the fact that the Receiving Party is considering a Potential\nTransaction with the Company, that this Agreement exists, that the Review Material has been made available to the Receiving Party, that discussions\nor negotiations are taking place concerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect\nthereto (including the status thereof), except in accordance with the procedures set forth in paragraph (d) below. Likewise, the Furnishing Party\nagrees that, without the prior written consent of the Company, the Furnishing Party will not (and will direct its Representatives not to) disclose to any\nother person aside from its Representatives the fact that the Receiving Party is considering a Potential Transaction with the Company, that this\nAgreement exists, that the Review Material has been made available to the Receiving Party, that discussions or negotiations are taking place\nconcerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof), except in accordance with the procedures set forth in paragraph (d) below. Without limiting the generality of the foregoing and\nnotwithstanding anything to the contrary contained herein, the Receiving Party further agrees that it will not, directly or indirectly, share the Review\nMaterial with or enter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or\nunderstanding, with any other person (other than its Representatives as permitted by this Agreement), including other potential bidders and equity\nfinancing sources, regarding the Potential Transaction involving the Company without the prior written consent of the Company and only upon such\nperson executing a confidentiality agreement in favor of the Company.\nFurthermore, the Receiving Party shall not enter into any agreement, arrangement or understanding, or any discussions which might lead to such\nagreement, arrangement or understanding, with any debt financing source which may reasonably be expected to limit, restrict, restrain or otherwise\nimpair in any manner, directly or indirectly, the ability of such debt financing source to provide financing or other assistance to any other party\nconsidering a potential transaction with the Company, it being agreed that such debt financing source may establish a “tree” system whereby separate\ngroups or “trees” will be formed and dedicated to you, and each other potential party, respectively, involved in the Potential Transaction, in which\ncase no violation hereunder will be deemed to have occurred. For the avoidance of any doubt, no violation of this Agreement shall be deemed to\nhave occurred to the extent such debt financing source, at its sole determination, cannot or will not establish a “tree” and, as a result, cannot or will\nnot provide financing or other assistance to any other party as a result of you entering into any agreement, arrangement or other understanding,\nwhether written or oral.\n(d) Notwithstanding anything contained in this Agreement to the contrary, if the Receiving Party or its Representatives have been\nrequested or are required (by oral questions, interrogatories, requests for information, or documents, subpoena, civil investigative demand, or similar\nprocess or by applicable law, regulation or stock exchange rule) to disclose any Review Material, the Receiving Party will notify the Furnishing\nParty within a commercially reasonable time frame in writing of such request(s) so that the Furnishing Party may seek, at its sole cost and expense,\nan appropriate protective order or other appropriate remedy or waive the Receiving Party’s compliance with the provisions of this Agreement. The\nReceiving Party agrees that it will put forth commercially reasonable efforts to cooperate with the Furnishing Party in assisting in seeking any\nprotective order or other appropriate remedy at Furnishing Party’s sole cost and expense. If, in the absence of a protective order or other appropriate\nremedy or the receipt of a waiver by the Furnishing Party, the Receiving Party or any of its Representatives are nonetheless, upon advice of counsel,\nlegally compelled to disclose Review Material or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or its\nRepresentatives may, without liability hereunder, disclose only that portion of the Review Material which such counsel advises is legally required to\nbe disclosed, provided that the Receiving Party, or its Representatives, as the case may be, exercises commercially reasonable efforts to preserve the\nconfidentiality of the Review Material, including, without limitation, by putting forth commercially reasonable efforts in cooperating with the\nFurnishing Party to assist in obtaining an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nReview Material.\n3. Limitation on Obligations. The obligations of the Receiving Party specified in Section 2 shall not apply, and the Receiving Party shall have\nno further obligations, with respect to any Review Material to the extent that (a) such Review Material was, is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement, (b) such Review Material\nwas in the possession of Receiving Party or its Representatives prior to its disclosure to the Receiving Party or its Representatives by the Furnishing\nParty or its Representatives pursuant hereto, provided that the source of such information was not known by the Receiving Party to be bound by a\ncontractual, legal or fiduciary obligation of confidentiality to the Furnishing Party with respect to such information, (c) such Review Material was, is\nor becomes available to the Receiving Party or its Representatives on a non-confidential basis from a source other than the Furnishing Party or its\nRepresentatives acting on its behalf, provided that such source is not known by Receiving Party or its Representatives to be bound by a\nconfidentiality agreement with the Furnishing Party, or (d) such Review Material has been or is subsequently independently conceived or developed\nby the Receiving Party or its Representatives without use of or reference to the Review Material.\n4. Term; Return of Review Material. Except as otherwise set forth in Section 7 or elsewhere in this Agreement, this Agreement shall have a\nterm of eighteen months. At any time upon the request of the Furnishing Party for any reason or for no reason, the Receiving Party will, within a\ncommercially reasonable time frame and at its sole option, either deliver to the Furnishing Party all Review Material provided by the Furnishing\nParty or its Representatives acting on its behalf to the Receiving Party (including all copies and summaries or synopses thereof, including, without\nlimitation, all computer and electronic files) or cause all such Review Material to be destroyed, provided, that the Receiving Party and its\nRepresentatives may retain Review Material for its files to the extent required by its respective record retention policies or to comply with legal\nand/or regulatory requirements. Such return or destruction, as applicable, of all Review Material by the Receiving Party and its Representatives shall\nbe certified by an officer of the Receiving Party in a writing delivered to the Furnishing Party. Notwithstanding the return or destruction of Review\nMaterial, the Receiving Party and the Company and their respective Representatives will continue to be bound by their obligations of confidentiality\nand other obligations hereunder for the term of this Agreement.\n5. No Commitment; No Representation or Warranty.\n(a) No contract or agreement with respect to a Potential Transaction shall be deemed to exist unless and until a definitive and binding\ncontract relating thereto has been executed and delivered (a “Definitive Agreement”), and each of the Receiving Party and the Company hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other based on the purported\nexistence of any such contract or agreement unless and until, and only to the extent that, the Receiving Party and the Company shall have entered\ninto a Definitive Agreement with respect to which a breach is alleged. The term “Definitive Agreement” does not include an executed letter of intent\nor any other preliminary written agreement, nor does it include any written or verbal agreement in principle or acceptance of an offer or bid, except\nto the extent otherwise provided therein. Neither the Receiving Party nor the Company shall have any legal obligation of any kind whatsoever with\nrespect to a possible business transaction by virtue of this Agreement or any other written or oral expression with respect to a possible business\ntransaction except, in the case of this Agreement, for the matters specifically agreed to herein. The Receiving Party further acknowledges and agrees\nthat the Company reserves the right, in it sole discretion, to reject any and all proposals made by the Receiving Party or any of its Representatives\nwith regard to a Potential Transaction between the Company and the Receiving Party, and to terminate discussions and negotiations with the\nReceiving Party at any time. The Receiving Party also acknowledges that the Company and its Representatives shall be free to conduct any process\nfor any transaction involving the Company as it shall determine in its sole discretion, including, without limitation, negotiating with any other\ninterested parties and entering into a Definitive Agreement without prior notice to the Receiving Party or its Representatives. Likewise, Receiving\nParty reserves the right to terminate discussions or negotiations with the Company at any time.\n(b) Each of the Receiving Party and the Company understands and acknowledges that neither the Furnishing Party nor its\nRepresentatives is making any representation or warranty as to the accuracy or completeness of any Review Material. Neither the Furnishing Party\nnor its Representatives shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of the Review\nMaterial. Only those representations or warranties which are made in a Definitive Agreement, when, as and if executed, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect. Furthermore, nothing contained in this Agreement nor the\nfurnishing of Review Material shall be construed as granting or conferring any rights by license or otherwise in any intellectual property of the\nFurnishing Party, except for a limited right of use as specifically set forth herein. All right, title and interest in the Review Material shall remain with\nthe Furnishing Party.\nand its affiliates and associates (as such terms are defined in Rule 12b-2 under the Exchange Act), together with any other person with whom it is\nacting in concert in connection with this matter or have formed a “group” within the meaning of Section 13(d)(3) of the Exchange Act (a “Group\nMember”) beneficially own in the aggregate less than 5% of the outstanding shares of Common Stock of the Company. The Receiving Party hereby\nrepresents to the Company that, as of the date hereof, no agreement, arrangement, or understanding (including without limitation, any derivative or\nshort positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) has been\nentered into by or on behalf of, and no agreement, arrangement or understanding has been made, the effect or intent of which is to mitigate loss, to\nmanage risk or to benefit from changes in the share price of any of the Company’s securities, or increase or decrease the voting power with respect to\nany of the Company’ securities, by the Receiving Party or its affiliates or associates (as such terms are defined in Rule 12b-2 under the Exchange\nAct) or any other Group Members of the Receiving Party and to which the Company is not a party. The Receiving Party hereby represents that each\nand every Group Member will be executing a copy of this Agreement, which will be promptly forwarded to the Company.\n7. Restrictions on Unsolicited Acquisition Activities. The Receiving Party acknowledges that the Review Information is being furnished to the\nReceiving Party in consideration of its agreement that the Receiving Party will not, and will direct its affiliates, directors, officers, employees and\nagents not to, directly or indirectly, for a period of one year from the date of this Agreement unless in any such case specifically invited in writing to\ndo so by the Board of Directors of the Company:\n(a) make any public announcement with respect to any proposal for, a transaction between the Company or any of its security holders\nand the Receiving Party (and/or any of the Receiving Party’s affiliates), whether or not any third parties are also involved, directly or indirectly, in\nsuch proposal or transaction, unless such proposal is directed and disclosed solely to the management of the Company and its designated\nrepresentatives, and in the case of any such proposal from or involving parties in addition to, or other than, the Receiving Party, the Company has\ngiven its advance written consent to the involvement of such additional or other parties;\n(b) other than pursuant to a prior written agreement with the Company, purchase, acquire or own, or offer to agree to purchase, acquire or\nown, directly or indirectly, any voting securities or direct or indirect rights (pursuant to an exchange, conversion, pledge or otherwise) or options to\nacquire any voting securities of the Company, except that affiliates of the Receiving Party may, in the aggregate, own beneficially or of record,\ndirectly or indirectly, up to 2.5% of the outstanding voting securities of the Company;\n(c) enter into any agreement, arrangement, or understanding (including, without limitation, any derivative or short positions, profit\ninterests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares), the effect or intent of which is\nto mitigate loss, to manage risk or to benefit from changes in the share price of any of the Company’s securities, or increase or decrease the voting\npower with respect to any of the Company’s securities;\n(d) other than pursuant to a prior written agreement with the Company, make or in way participate in, directly or indirectly, any\n“solicitation” or “proxies” (as such terms are defined or used in Regulation 14 under the Exchange Act) or become a “participant” in an “election\ncontest” (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or seek to advise or influence any\nperson with respect to the voting of any voting securities of the Company;\n(e) execute any written consent in lieu of a meeting of holders of any class of securities of the Company unless such written consent is\nsolicited by the Board of Directors of the Company;\n(f) initiate, propose or otherwise solicit shareholders for the approval of one or more stockholder proposals with respect to the Company\nas described in Rule 14a-8 under the Exchange Act or induce or attempt to induce any other person to do so;\n(g) other than pursuant to a prior written agreement with the Company, acquire or affect the control of the Company or directly or\nindirectly participate in or encourage the formation of any “group” (within the meaning of Section 13(d)(3) of the Exchange Act which owns or\nseeks to acquire ownership of voting securities of the Company, or to acquire or affect control of the Company;\n(h) call or seek to have called any meeting of the stockholders of the Company;\n(i) seek election to or seek to place a representative on the Board of Directors of the Company or seek the removal of any member of the\nBoard of Directors of the Company or a change in the composition or size of the Board of Directors of the Company;\n(j) other than pursuant to a prior written agreement with the Company, otherwise act, directly or indirectly, alone or in concert with\nothers, to seek to control or to influence in any manner the management, board of directors, policies or affairs of the Company, or propose to seek to\neffect nor negotiate with or provide financial assistance (by loan, capital contribution or otherwise) or information to any party with respect to any\nform of business combination transaction (including, without limitation, a merger, consolidation or acquisition or disposition of significant assets of\nthe Company or any other entity) with the Company or any affiliate thereof or any restructure, recapitalization or similar transaction with respect to\nthe Company or any affiliate thereof;\n(k) instigate, encourage, assist or render advice to or make any recommendation or proposal to any person or other entity to engage in\nany of the actions covered by clauses (a) through (j) of this Section 7, or render advice with respect to voting securities of the Company;\n(1) take any action, other than pursuant to a prior written agreement with the Company, that might force the Furnishing Party to make a\npublic announcement regarding any of the types of matters set forth in this Section 7;\n(m) except to the extent required by law, make any public statement (or make available to any member of the news media any\ninformation) with respect to any of the matters covered by this Section 7, or with respect to the terms and conditions of, or any of the facts related to,\nthis Agreement; or\n(n) require, other than pursuant to a prior written agreement with the Company, any waiver, modification, termination or amendment of\nthis Section 7 of the relinquishment by the Company of any rights with respect thereto.\nNothing contained in this Section 7 shall restrict the Receiving Party from making a cash tender offer for all of the outstanding capital stock of the\nCompany after such time as both (i) a third party has commenced, within the meaning of Rule 14d-2 of the Exchange Act, a cash tender offer for the\nCompany at a lower price per share than the price per share offered by the Receiving Party in its tender offer and (ii) the Company has recommended\nto its stockholders that they accept such third party’s tender offer.\n8. Rule 10b-5 Limitations. The Receiving Party and the Company each hereby acknowledges to the other that it is aware (and, if applicable,\nthat its Representatives who are apprised of this matter have been advised) that the United States securities laws prohibit any person who has\nmaterial non-public information about a company from purchasing or selling securities of such company, or from communicating such information\nto any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. Non-Solicitation of Employees. In consideration of and as a condition to the Company furnishing Review Material under this Agreement,\nthe Receiving Party agrees that for a period of eighteen months from the date of this Agreement, neither the Receiving Party nor any of its affiliates\nwho have received Review Material will, directly or indirectly, solicit to employ any of the current senior-level officers or employees of the\nCompany or its subsidiaries (so long as they are employed by the Company or its subsidiaries) without obtaining the prior written consent of the\nCompany (it being understood that any newspaper or other general solicitation not directed specifically to such person shall not be deemed to be a\nsolicitation for purposes of this provision).\n10. Conduct of Process. The Receiving Party understands and agrees that (a) all inquiries, requests for information and other communications\nwith the Company regarding the Potential Transaction shall be made only through Excel Partners, (b) the Receiving Party will not (and will direct its\nRepresentatives not to) initiate contact with parties known by it to be current employees, customers or suppliers of the Company with respect to the\nPotential Transaction, (c) the Receiving Party will not (and will direct its Representatives not to) discuss any matters relating to the Potential\nTransaction or an employee’s position with, or interest in, the Company after the transaction with any current employee of the Company without the\nprior consent of the Company, (d) the Company and its Representatives shall be free to conduct the process relating to the Potential Transaction in\nsuch manner as it in its sole discretion shall determine (including, without limitation, negotiating with any of the prospective parties and entering into\nan agreement to effect a Potential Transaction without prior notice to the Receiving Party or any other person), (e) any procedures relating to such\nsale may be changed at any time without notice to the Receiving Party or any other person and (f) the Receiving Party shall not have any rights or\nclaims whatsoever against the Company or any of Representatives arising out of or relating to the Potential Transaction (other than any rights or\nclaims arising out of any Definitive Agreement in accordance with its terms). For the avoidance of doubt, nothing herein shall prevent the Receiving\nParty or its Representatives from performing usual and customary due diligence so long as they do not disclose the existence of a Potential\nTransaction.\n11. Remedies. The Receiving Party and the Company agree that money damages may not be a sufficient remedy for any breach of this\nAgreement by it or its Representatives and that the other party shall be entitled to seek equitable relief, including an injunction and specific\nperformance, as a remedy for any such breach. The Receiving Party and the Company agree to waive any requirement for the posting of a bond in\nconnection with any such equitable relief. Such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement by the\nReceiving Party or the Company or their respective Representatives, but shall be in addition to all other remedies available at law or in equity to the\nother. In the event that either party successfully enforces its obligations hereunder, the other party shall reimburse the enforcing party for all\nreasonable costs and expenses, including reasonable attorneys’ fees, incurred by the enforcing party in this regard. To the extent that any Review\nMaterial may include materials subject to the attorney-client privilege, work-product doctrine or any other applicable privilege concerning pending\nor threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with\nrespect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not,\nwaive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work-product\ndoctrine or other applicable privilege. All Review Material that is entitled to protection under the attorney-client privilege, work-product doctrine\nand other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint-defense doctrine.\n12. As part of this agreement, Receiving Party wishes to advise the Company that it makes investments in other companies in the ordinary\ncourse of business and, as a result of such investments, such companies may be deemed to be affiliated or associated with it. In addition, certain\npersons and entities that may be deemed to be affiliated or associated with Receiving Party represent large organizations over which it has little or no\ncontrol. To the extent that it does not disclose Review Material to any such company, person or entity, the terms of this agreement shall not apply to\nsuch companies, persons or entities, and no such company, person or entity shall be deemed to have been provided with the Review Material solely\nas a result of any of Receiving Party’s Representatives (whether such person has been provided with or has knowledge of the Review Material)\nserving on the board of such company, person, or entity.\n13. Miscellaneous. This Agreement constitutes the final agreement between the parties hereto. It is the complete and exclusive expression of\nthe parties’ agreement on the subject matter of this Agreement. This Agreement supersedes all other oral or written agreements or policies relating to\nthis Agreement. No amendment of this Agreement will be effective unless it is in writing and signed by the parties. No waiver of satisfaction of a\ncondition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the\nwaiver, and no such waiver will constitute a waiver of satisfaction of any other condition or nonperformance of any other obligation. It is further\nunderstood and agreed by the Receiving Party and the Company that no failure or delay by the other party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right power or privilege hereunder. No party may assign any part of its rights or delegate any performance under this Agreement\nexcept with the other party’s prior written consent, provided that consent shall not be required for transfer or assignment pursuant to merger,\nconsolidation or sale of substantially all of the assets of a party). Any purported assignment of rights or delegation of performance in violation of this\nSection 13 is void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective heirs,\nsuccessors and assigns. The laws of the State of Delaware, without giving effect to principles of conflict of laws, govern all matters arising out of or\nrelating to this Agreement. Each party hereto consents to exclusive personal jurisdiction in the State of Delaware and voluntarily submits to the\njurisdiction of the courts of the State of Delaware in any action or proceeding with respect to this Agreement, including the federal district courts\nlocated in such State. Each party agrees that it may be served with process at its address set forth on the first page hereof. If any portion or provision\nof this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement,\nor the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be\naffected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement which will constitute our legally binding\nagreement with respect to the subject matter of this letter.\nVery truly yours,\nBioClinica, Inc.\nBy:  /s/ Ted 1. Kaminer\nName: Ted I. Kaminer\nTitle: CFO\nACKNOWLEDGED, AGREED AND CONFIRMED:\nJLL Partners, Inc.\nBy: /s/ Andrew Goldfarb\nName: Andrew Goldfarb\nTitle: Vice President\nDate: October 15, 2012	EX-99.(D)(2) 10 d476767dex99d2.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nOctober 15, 2012\nIn connection with our mutual consideration of a possible business transaction (the "Potential Transaction") between JLL Partners, Inc., (the\n"Receiving Party") and BioClinica, Inc., a Delaware corporation (the "Company" or the "Furnishing Party"), the Receiving Party has requested\ncertain financial and other information concerning the business and affairs of the Company. The Company, from time to time, may furnish to the\nReceiving Party certain Review Material (as defined below) as the Furnishing Party, in its sole and absolute discretion, may determine to furnish\nfrom time to time. As a condition to furnishing and receiving such Review Material, we each agree to comply with the terms and conditions set forth\nbelow in this agreement (this "Agreement"):\n1. Review Material.\nThe term "Review Material" includes (a) all information that the Furnishing Party or any of its Representatives (as defined below), on behalf\nof the Furnishing Party, will furnish to the Receiving Party or its Representatives (in written, oral, visual, electronic or other form) on or after the\ndate of this Agreement, including the terms of the Potential Transaction, and (b) all notes, analyses, compilations, studies, interpretations or other\ndocuments\nor\nmaterials\nprepared\nby\nthe\nReceiving\nParty\nor\nits\nRepresentatives\nwhich\ncontain,\nreflect\nor\nare\nbased,\nin\nwhole\nor\nin\npart,\nupon\nsuch\ninformation furnished to the Receiving Party or its Representatives by the Furnishing Party. For purposes hereof, "Representatives" shall mean a\nparty's affiliates (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and its and\ntheir directors, officers, members, partners, employees, agents, representatives, consultants, accountants, lenders, attorneys and advisors, together\nwith any current or potential financing sources involved in connection with the Potential Transaction.\n2. Use and Disclosure of Review Material.\n(a) Review Material shall at all times be kept strictly confidential and shall not be used or disclosed by the Receiving Party other than as\npermitted hereunder.\n(b) The Receiving Party shall use the Review Material only for the purpose of evaluating, negotiating and implementing the Potential\nTransaction and shall not use the Review Material in any way in violation of this Agreement. The Receiving Party may only disclose Review\nMaterial to persons within its and its Representatives' organizations who (i) are assisting in Receiving Party's evaluation, negotiation or\nimplementation of the Potential Transaction, and (ii) are informed in writing by the Receiving Party of the confidential nature of such information\nand the undertakings contained herein, unless such Representative's employer has already executed a letter on behalf of its employees to treat such\ninformation confidentially or such Representative owes a legal duty to the Receiving Party to treat such information confidentially. Notwithstanding\nthe foregoing, the Receiving Party shall be responsible for any breach of this Agreement by its Representatives.\n(c) The Receiving Party agrees that, without the prior written consent of the Company, the Receiving Party will not (and will direct its\nRepresentatives not to) disclose to any other person aside from its Representatives the fact that the Receiving Party is considering a Potential\nTransaction with the Company, that this Agreement exists, that the Review Material has been made available to the Receiving Party, that discussions\nor negotiations are taking place concerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect\nthereto (including the status thereof), except in accordance with the procedures set forth in paragraph (d) below. Likewise, the Furnishing Party\nagrees that, without the prior written consent of the Company, the Furnishing Party will not (and will direct its Representatives not to) disclose to any\nother person aside from its Representatives the fact that the Receiving Party is considering a Potential Transaction with the Company, that this\nAgreement exists, that the Review Material has been made available to the Receiving Party, that discussions or negotiations are taking place\nconcerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof), except in accordance with the procedures set forth in paragraph (d) below. Without limiting the generality of the foregoing and\nnotwithstanding anything to the contrary contained herein, the Receiving Party further agrees that it will not, directly or indirectly, share the Review\nMaterial\nwith\nor\nenter\ninto\nany\nagreement,\narrangement\nor\nunderstanding,\nor\nany\ndiscussions\nwhich\nmight\nlead\nto\nsuch\nagreement,\narrangement\nor\nunderstanding, with any other person (other than its Representatives as permitted by this Agreement), including other potential bidders and equity\nfinancing sources, regarding the Potential Transaction involving the Company without the prior written consent of the Company and only upon such\nperson executing a confidentiality agreement in favor of the Company.\nFurthermore, the Receiving Party shall not enter into any agreement, arrangement or understanding, or any discussions which might lead to such\nagreement, arrangement or understanding, with any debt financing source which may reasonably be expected to limit, restrict, restrain or otherwise\nimpair in any manner, directly or indirectly, the ability of such debt financing source to provide financing or other assistance to any other party\nconsidering a potential transaction with the Company, it being agreed that such debt financing source may establish a "tree" system whereby separate\ngroups or "trees" will be formed and dedicated to you, and each other potential party, respectively, involved in the Potential Transaction, in which\ncase no violation hereunder will be deemed to have occurred. For the avoidance of any doubt, no violation of this Agreement shall be deemed to\nhave occurred to the extent such debt financing source, at its sole determination, cannot or will not establish a "tree" and, as a result, cannot or will\nnot provide financing or other assistance to any other party as a result of you entering into any agreement, arrangement or other understanding,\nwhether written or oral.\n(d) Notwithstanding anything contained in this Agreement to the contrary, if the Receiving Party or its Representatives have been\nrequested or are required (by oral questions, interrogatories, requests for information, or documents, subpoena, civil investigative demand, or similar\nprocess or by applicable law, regulation or stock exchange rule) to disclose any Review Material, the Receiving Party will notify the Furnishing\nParty within a commercially reasonable time frame in writing of such request(s) so that the Furnishing Party may seek, at its sole cost and expense,\nan appropriate protective order or other appropriate remedy or waive the Receiving Party's compliance with the provisions of this Agreement. The\nReceiving Party agrees that it will put forth commercially reasonable efforts to cooperate with the Furnishing Party in assisting in seeking any\nprotective order or other appropriate remedy at Furnishing Party's sole cost and expense. If, in the absence of a protective order or other appropriate\nremedy or the receipt of a waiver by the Furnishing Party, the Receiving Party or any of its Representatives are nonetheless, upon advice of counsel,\nlegally compelled to disclose Review Material or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or its\nRepresentatives may, without liability hereunder, disclose only that portion of the Review Material which such counsel advises is legally required to\nbe disclosed, provided that the Receiving Party, or its Representatives, as the case may be, exercises commercially reasonable efforts to preserve\nthe\nconfidentiality of the Review Material, including, without limitation, by putting forth commercially reasonable efforts in cooperating with the\nFurnishing Party to assist in obtaining an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nReview Material.\n3. Limitation on Obligations. The obligations of the Receiving Party specified in Section 2 shall not apply, and the Receiving Party shall have\nno further obligations, with respect to any Review Material to the extent that (a) such Review Material was, is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement, (b) such Review Material\nwas in the possession of Receiving Party or its Representatives prior to its disclosure to the Receiving Party or its Representatives by the Furnishing\nParty or its Representatives pursuant hereto, provided that the source of such information was not known by the Receiving Party to be bound by a\ncontractual, legal or fiduciary obligation of confidentiality to the Furnishing Party with respect to such information, (c) such Review Material was, is\nor becomes available to the Receiving Party or its Representatives on a non-confidential basis from a source other than the Furnishing Party or its\nRepresentatives acting on its behalf, provided that such source is not known by Receiving Party or its Representatives to be bound by\na\nconfidentiality agreement with the Furnishing Party, or (d) such Review Material has been or is subsequently independently conceived or developed\nby the Receiving Party or its Representatives without use of or reference to the Review Material.\n4. Term; Return of Review Material. Except as otherwise set forth in Section 7 or elsewhere in this Agreement, this Agreement shall have a\nterm of eighteen months. At any time upon the request of the Furnishing Party for any reason or for no reason, the Receiving Party will, within\na\ncommercially reasonable time frame and at its sole option, either deliver to the Furnishing Party all Review Material provided by the Furnishing\nParty or its Representatives acting on its behalf to the Receiving Party (including all copies and summaries or synopses thereof, including, without\nlimitation, all computer and electronic files) or cause all such Review Material to be destroyed, provided, that the Receiving Party and its\nRepresentatives may retain Review Material for its files to the extent required by its respective record retention policies or to comply with legal\nand/or regulatory requirements. Such return or destruction, as applicable, of all Review Material by the Receiving Party and its Representatives shall\nbe\ncertified by an officer of the Receiving Party in a writing delivered to the Furnishing Party. Notwithstanding the return or destruction of\nReview\nMaterial, the Receiving Party and the Company and their respective Representatives will continue to be bound by their obligations of confidentiality\nand other obligations hereunder for the term of this Agreement.\n5. No Commitment; No Representation or Warranty..\n(a) No contract or agreement with respect to a Potential Transaction shall be deemed to exist unless and until a definitive and binding\ncontract relating thereto has been executed and delivered (a "Definitive Agreement"), and each of the Receiving Party and the Company hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other based on the purported\nexistence\nof\nany\nsuch\ncontract\nor\nagreement\nunless\nand\nuntil,\nand\nonly\nto\nthe\nextent\nthat,\nthe\nReceiving\nParty\nand\nthe\nCompany\nshall\nhave\nentered\ninto a Definitive Agreement with respect to which a breach is alleged. The term "Definitive Agreement" does not include an executed letter of intent\nor any other preliminary written agreement, nor does it include any written or verbal agreement in principle or acceptance of an offer or bid, except\nto the extent otherwise provided therein. Neither the Receiving Party nor the Company shall have any legal obligation of any kind whatsoever with\nrespect to a possible business transaction by virtue of this Agreement or any other written or oral expression with respect to a possible business\ntransaction except, in the case of this Agreement, for the matters specifically agreed to herein. The Receiving Party further acknowledges and agrees\nthat the Company reserves the right, in it sole discretion, to reject any and all proposals made by the Receiving Party or any of its Representatives\nwith regard to a Potential Transaction between the Company and the Receiving Party, and to terminate discussions and negotiations with the\nReceiving Party at any time. The Receiving Party also acknowledges that the Company and its Representatives shall be free to conduct any process\nfor any transaction involving the Company as it shall determine in its sole discretion, including, without limitation, negotiating with any other\ninterested parties and entering into a Definitive Agreement without prior notice to the Receiving Party or its Representatives. Likewise, Receiving\nParty reserves the right to terminate discussions or negotiations with the Company at any time.\n(b) Each of the Receiving Party and the Company understands and acknowledges that neither the Furnishing Party nor its\nRepresentatives is making any representation or warranty as to the accuracy or completeness of any Review Material. Neither the Furnishing Party\nnor its Representatives shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of the Review\nMaterial. Only those representations or warranties which are made in a Definitive Agreement, when, as and if executed, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect. Furthermore, nothing contained in this Agreement nor the\nfurnishing of Review Material shall be construed as granting or conferring any rights by license or otherwise in any intellectual property of the\nFurnishing Party, except for a limited right of use as specifically set forth herein. All right, title and interest in the Review Material shall remain with\nthe Furnishing Party.\n6. Current Equity Ownership;. Derivative Transactions. The Receiving Party hereby represents to the Company that, as of the date hereof, it\nand its affiliates and associates (as such terms are defined in Rule 12b-2 under the Exchange Act), together with any other person with whom it\nis\nacting in concert in connection with this matter or have formed a "group" within the meaning of Section 13(d)(3) of the Exchange Act (a "Group\nMember") beneficially own in the aggregate less than 5% of the outstanding shares of Common Stock of the Company. The Receiving Party hereby\nrepresents to the Company that, as of the date hereof, no agreement, arrangement, or understanding (including without limitation, any derivative or\nshort positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) has been\nentered into by or on behalf of, and no agreement, arrangement or understanding has been made, the effect or intent of which is to mitigate loss, to\nmanage risk or to benefit from changes in the share price of any of the Company's securities, or increase or decrease the voting power with respect to\nany of the Company' securities, by the Receiving Party or its affiliates or associates (as such terms are defined in Rule 12b-2 under the Exchange\nAct) or any other Group Members of the Receiving Party and to which the Company is not a party. The Receiving Party hereby represents that each\nand every Group Member will be executing a copy of this Agreement, which will be promptly forwarded to the Company.\n7. Restrictions on Unsolicited Acquisition Activities. The Receiving Party acknowledges that the Review Information is being furnished to the\nReceiving Party in consideration of its agreement that the Receiving Party will not, and will direct its affiliates, directors, officers, employees and\nagents not to, directly or indirectly for a period of one year from the date of this Agreement unless in any such case specifically invited in writing\nto\ndo so by the Board of Directors of the Company:\n(a) make any public announcement with respect to any proposal for, a transaction between the Company or any of its security holders\nand the Receiving Party (and/or any of the Receiving Party's affiliates), whether or not any third parties are also involved, directly or indirectly, in\nsuch proposal or transaction, unless such proposal is directed and disclosed solely to the management of the Company and its designated\nrepresentatives, and in the case of any such proposal from or involving parties in addition to, or other than, the Receiving Party, the Company has\ngiven its advance written consent to the involvement of such additional or other parties;\n(b) other than pursuant to a prior written agreement with the Company, purchase, acquire or own, or offer to agree to purchase, acquire or\nown, directly or indirectly, any voting securities or direct or indirect rights (pursuant to an exchange, conversion, pledge or otherwise) or options to\nacquire any voting securities of the Company, except that affiliates of the Receiving Party may, in the aggregate, own beneficially or of record,\ndirectly or indirectly, up to 2.5% of the outstanding voting securities of the Company;\n(c) enter into any agreement, arrangement, or understanding (including, without limitation, any derivative or short positions, profit\ninterests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares), the effect or intent of which is\nto mitigate loss, to manage risk or to benefit from changes in the share price of any of the Company's securities, or increase or decrease the voting\npower with respect to any of the Company's securities;\n(d) other than pursuant to a prior written agreement with the Company, make or in way participate in, directly or indirectly, any\n"solicitation"\nor\n"proxies"\n(as\nsuch\nterms\nare\ndefined\nor\nused\nin\nRegulation\n14\nunder\nthe\nExchange\nAct)\nor\nbecome\na\n"participant"\nin\nan\n"election\ncontest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or seek to advise or influence any\nperson with respect to the voting of any voting securities of the Company;\n(e) execute any written consent in lieu of a meeting of holders of any class of securities of the Company unless such written consent is\nsolicited by the Board of Directors of the Company;\n(f) initiate, propose or otherwise solicit shareholders for the approval of one or more stockholder proposals with respect to the Company\nas described in Rule 14a-8 under the Exchange Act or induce or attempt to induce any other person to do so;\n(g) other than pursuant to a prior written agreement with the Company, acquire or affect the control of the Company or directly\nor\nindirectly participate in or encourage the formation of any "group" (within the meaning of Section 13(d)(3) of the Exchange Act which owns or\nseeks to acquire ownership of voting securities of the Company, or to acquire or affect control of the Company;\n(h) call or seek to have called any meeting of the stockholders of the Company;\n(i) seek election to or seek to place a representative on the Board of Directors of the Company or seek the removal of any member of the\nBoard of Directors of the Company or a change in the composition or size of the Board of Directors of the Company;\n(j) other than pursuant to a prior written agreement with the Company, otherwise act, directly or indirectly, alone or in concert with\nothers, to seek to control or to influence in any manner the management, board of directors, policies or affairs of the Company, or propose to seek to\neffect nor negotiate with or provide financial assistance (by loan, capital contribution or otherwise) or information to any party with respect to any\nform of business combination transaction (including, without limitation, a merger, consolidation or acquisition or disposition of significant assets of\nthe Company or any other entity) with the Company or any affiliate thereof or any restructure, recapitalization or similar transaction with respect to\nthe Company or any affiliate thereof;\n(k) instigate, encourage, assist or render advice to or make any recommendation or proposal to any person or other entity to engage in\nany of the actions covered by clauses (a) through (j) of this Section 7, or render advice with respect to voting securities of the Company;\n(1) take any action, other than pursuant to a prior written agreement with the Company, that might force the Furnishing Party to make a\npublic announcement regarding any of the types of matters set forth in this Section 7;\n(m) except to the extent required by law, make any public statement (or make available to any member of the news media any\ninformation) with respect to any of the matters covered by this Section 7, or with respect to the terms and conditions of, or any of the facts related to,\nthis Agreement; or\n(n) require, other than pursuant to a prior written agreement with the Company, any waiver, modification, termination or amendment of\nthis Section 7 of the relinquishment by the Company of any rights with respect thereto.\nNothing contained in this Section 7 shall restrict the Receiving Party from making a cash tender offer for all of the outstanding capital stock of the\nCompany after such time as both (i) a third party has commenced, within the meaning of Rule 14d-2 of the Exchange Act, a cash tender offer for the\nCompany at a lower price per share than the price per share offered by the Receiving Party in its tender offer and (ii) the Company has recommended\nto its stockholders that they accept such third party's tender offer.\n8. Rule 10b-5 Limitations. The Receiving Party and the Company each hereby acknowledges to the other that it is aware (and, if applicable,\nthat its Representatives who are apprised of this matter have been advised) that the United States securities laws prohibit any person who has\nmaterial non-public information about a company from purchasing or selling securities of such company, or from communicating such information\nto any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. Non-Solicitation of Employees. In consideration of and as a condition to the Company furnishing Review Material under this Agreement,\nthe Receiving Party agrees that for a period of eighteen months from the date of this Agreement, neither the Receiving Party nor any of its affiliates\nwho have received Review Material will, directly or indirectly, solicit to employ any of the current senior-level officers or employees of the\nCompany or its subsidiaries (so long as they are employed by the Company or its subsidiaries) without obtaining the prior written consent of the\nCompany (it being understood that any newspaper or other general solicitation not directed specifically to such person shall not be deemed to be a\nsolicitation for purposes of this provision).\n10. Conduct of Process. The Receiving Party understands and agrees that (a) all inquiries, requests for information and other communications\nwith the Company regarding the Potential Transaction shall be made only through Excel Partners, (b) the Receiving Party will not (and will direct its\nRepresentatives not to) initiate contact with parties known by it to be current employees, customers or suppliers of the Company with respect to the\nPotential Transaction, (c) the Receiving Party will not (and will direct its Representatives not to) discuss any matters relating to the Potential\nTransaction or an employee's position with, or interest in, the Company after the transaction with any current employee of the Company without the\nprior consent of the Company, (d) the Company and its Representatives shall be free to conduct the process relating to the Potential Transaction in\nsuch manner as it in its sole discretion shall determine (including, without limitation, negotiating with any of the prospective parties and entering into\nan agreement to effect a Potential Transaction without prior notice to the Receiving Party or any other person), (e) any procedures relating to such\nsale may be changed at any time without notice to the Receiving Party or any other person and (f) the Receiving Party shall not have any rights or\nclaims whatsoever against the Company or any of Representatives arising out of or relating to the Potential Transaction (other than any rights or\nclaims arising out of any Definitive Agreement in accordance with its terms). For the avoidance of doubt, nothing herein shall prevent the Receiving\nParty or its Representatives from performing usual and customary due diligence so long as they do not disclose the existence of a Potential\nTransaction\n11. Remedies. The Receiving Party and the Company agree that money damages may not be a sufficient remedy for any breach of this\nAgreement by it or its Representatives and that the other party shall be entitled to seek equitable relief, including an injunction and specific\nperformance, as a remedy for any such breach. The Receiving Party and the Company agree to waive any requirement for the posting of a bond\nin\nconnection with any such equitable relief. Such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement by the\nReceiving Party or the Company or their respective Representatives, but shall be in addition to all other remedies available at law or in equity to the\nother. In the event that either party successfully enforces its obligations hereunder, the other party shall reimburse the enforcing party for all\nreasonable costs and expenses, including reasonable attorneys' fees, incurred by the enforcing party in this regard. To the extent that any Review\nMaterial may include materials subject to the attorney-client privilege, work-product doctrine or any other applicable privilege concerning pending\nor threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with\nrespect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not,\nwaive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work-product\ndoctrine\nor\nother\napplicable\nprivilege.\nAll\nReview\nMaterial\nthat\nis\nentitled\nto\nprotection\nunder\nthe\nattorney-client\nprivilege,\nwork-product\ndoctrine\nand other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint-defense doctrine.\n12. As part of this agreement, Receiving Party wishes to advise the Company that it makes investments in other companies in the ordinary\ncourse of business and, as a result of such investments, such companies may be deemed to be affiliated or associated with it. In addition, certain\npersons and entities that may be deemed to be affiliated or associated with Receiving Party represent large organizations over which it has little or no\ncontrol. To the extent that it does not disclose Review Material to any such company, person or entity, the terms of this agreement shall not apply to\nsuch companies, persons or entities, and no such company, person or entity shall be deemed to have been provided with the Review Material solely\nas a result of any of Receiving Party's Representatives (whether such person has been provided with or has knowledge of the Review Material)\nserving on the board of such company, person, or entity.\n13. Miscellaneous. This Agreement constitutes the final agreement between the parties hereto. It is the complete and exclusive expression of\nthe parties' agreement on the subject matter of this Agreement. This Agreement supersedes all other oral or written agreements or policies relating to\nthis Agreement. No amendment of this Agreement will be effective unless it is in writing and signed by the parties. No waiver of satisfaction of\na\ncondition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the\nwaiver, and no such waiver will constitute a waiver of satisfaction of any other condition or nonperformance of any other obligation. It is further\nunderstood and agreed by the Receiving Party and the Company that no failure or delay by the other party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right power or privilege hereunder. No party may assign any part of its rights or delegate any performance under this Agreement\nexcept with the other party's prior written consent, provided that consent shall not be required for transfer or assignment pursuant to merger,\nconsolidation or sale of substantially all of the assets of a party). Any purported assignment of rights or delegation of performance in violation of this\nSection 13 is void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective heirs,\nsuccessors and assigns. The laws of the State of Delaware, without giving effect to principles of conflict of laws, govern all matters arising out of or\nrelating to this Agreement. Each party hereto consents to exclusive personal jurisdiction in the State of Delaware and voluntarily submits to the\njurisdiction of the courts of the State of Delaware in any action or proceeding with respect to this Agreement, including the federal district courts\nlocated in such State. Each party agrees that it may be served with process at its address set forth on the first page hereof. If any portion or provision\nof this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement,\nor the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be\naffected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement which will constitute our legally binding\nagreement with respect to the subject matter of this letter.\nVery truly yours,\nBioClinica, Inc.\nBy:\n/s/ Ted I. Kaminer\nName: Ted I. Kaminer\nTitle: CFO\nACKNOWLEDGED, AGREED AND CONFIRMED:\nJLL Partners, Inc.\nBy:\n/s/ Andrew Goldfarb\nName:\nAndrew Goldfarb\nTitle:\nVice President\nDate:\nOctober 15, 2012	EX-99.(D)(2) 10 d476767dex99d2.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nOctober 15, 2012\nIn connection with our mutual consideration of a possible business transaction (the “Potential Transaction”) between JLL Partners, Inc., (the\n“Receiving Party”) and BioClinica, Inc., a Delaware corporation (the “Company” or the “Furnishing Party”), the Receiving Party has requested\ncertain financial and other information concerning the business and affairs of the Company. The Company, from time to time, may furnish to the\nReceiving Party certain Review Material (as defined below) as the Furnishing Party, in its sole and absolute discretion, may determine to furnish\nfrom time to time. As a condition to furnishing and receiving such Review Material, we each agree to comply with the terms and conditions set forth\nbelow in this agreement (this “Agreement”):\n1. Review Material.\nThe term “Review Material” includes (a) all information that the Furnishing Party or any of its Representatives (as defined below), on behalf\nof the Furnishing Party, will furnish to the Receiving Party or its Representatives (in written, oral, visual, electronic or other form) on or after the\ndate of this Agreement, including the terms of the Potential Transaction, and (b) all notes, analyses, compilations, studies, interpretations or other\ndocuments or materials prepared by the Receiving Party or its Representatives which contain, reflect or are based, in whole or in part, upon such\ninformation furnished to the Receiving Party or its Representatives by the Furnishing Party. For purposes hereof, “Representatives” shall mean a\nparty’s affiliates (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and its and\ntheir directors, officers, members, partners, employees, agents, representatives, consultants, accountants, lenders, attorneys and advisors, together\nwith any current or potential financing sources involved in connection with the Potential Transaction.\n2. Use and Disclosure of Review Material.\n(a) Review Material shall at all times be kept strictly confidential and shall not be used or disclosed by the Receiving Party other than as\npermitted hereunder.\n(b) The Receiving Party shall use the Review Material only for the purpose of evaluating, negotiating and implementing the Potential\nTransaction and shall not use the Review Material in any way in violation of this Agreement. The Receiving Party may only disclose Review\nMaterial to persons within its and its Representatives’ organizations who (i) are assisting in Receiving Party’s evaluation, negotiation or\nimplementation of the Potential Transaction, and (ii) are informed in writing by the Receiving Party of the confidential nature of such information\nand the undertakings contained herein, unless such Representative’s employer has already executed a letter on behalf of its employees to treat such\ninformation confidentially or such Representative owes a legal duty to the Receiving Party to treat such information confidentially. Notwithstanding\nthe foregoing, the Receiving Party shall be responsible for any breach of this Agreement by its Representatives.\n(c) The Receiving Party agrees that, without the prior written consent of the Company, the Receiving Party will not (and will direct its\nRepresentatives not to) disclose to any other person aside from its Representatives the fact that the Receiving Party is considering a Potential\nTransaction with the Company, that this Agreement exists, that the Review Material has been made available to the Receiving Party, that discussions\nor negotiations are taking place concerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect\nthereto (including the status thereof), except in accordance with the procedures set forth in paragraph (d) below. Likewise, the Furnishing Party\nagrees that, without the prior written consent of the Company, the Furnishing Party will not (and will direct its Representatives not to) disclose to any\nother person aside from its Representatives the fact that the Receiving Party is considering a Potential Transaction with the Company, that this\nAgreement exists, that the Review Material has been made available to the Receiving Party, that discussions or negotiations are taking place\nconcerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof), except in accordance with the procedures set forth in paragraph (d) below. Without limiting the generality of the foregoing and\nnotwithstanding anything to the contrary contained herein, the Receiving Party further agrees that it will not, directly or indirectly, share the Review\nMaterial with or enter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or\nunderstanding, with any other person (other than its Representatives as permitted by this Agreement), including other potential bidders and equity\nfinancing sources, regarding the Potential Transaction involving the Company without the prior written consent of the Company and only upon such\nperson executing a confidentiality agreement in favor of the Company.\nFurthermore, the Receiving Party shall not enter into any agreement, arrangement or understanding, or any discussions which might lead to such\nagreement, arrangement or understanding, with any debt financing source which may reasonably be expected to limit, restrict, restrain or otherwise\nimpair in any manner, directly or indirectly, the ability of such debt financing source to provide financing or other assistance to any other party\nconsidering a potential transaction with the Company, it being agreed that such debt financing source may establish a “tree” system whereby separate\ngroups or “trees” will be formed and dedicated to you, and each other potential party, respectively, involved in the Potential Transaction, in which\ncase no violation hereunder will be deemed to have occurred. For the avoidance of any doubt, no violation of this Agreement shall be deemed to\nhave occurred to the extent such debt financing source, at its sole determination, cannot or will not establish a “tree” and, as a result, cannot or will\nnot provide financing or other assistance to any other party as a result of you entering into any agreement, arrangement or other understanding,\nwhether written or oral.\n(d) Notwithstanding anything contained in this Agreement to the contrary, if the Receiving Party or its Representatives have been\nrequested or are required (by oral questions, interrogatories, requests for information, or documents, subpoena, civil investigative demand, or similar\nprocess or by applicable law, regulation or stock exchange rule) to disclose any Review Material, the Receiving Party will notify the Furnishing\nParty within a commercially reasonable time frame in writing of such request(s) so that the Furnishing Party may seek, at its sole cost and expense,\nan appropriate protective order or other appropriate remedy or waive the Receiving Party’s compliance with the provisions of this Agreement. The\nReceiving Party agrees that it will put forth commercially reasonable efforts to cooperate with the Furnishing Party in assisting in seeking any\nprotective order or other appropriate remedy at Furnishing Party’s sole cost and expense. If, in the absence of a protective order or other appropriate\nremedy or the receipt of a waiver by the Furnishing Party, the Receiving Party or any of its Representatives are nonetheless, upon advice of counsel,\nlegally compelled to disclose Review Material or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or its\nRepresentatives may, without liability hereunder, disclose only that portion of the Review Material which such counsel advises is legally required to\nbe disclosed, provided that the Receiving Party, or its Representatives, as the case may be, exercises commercially reasonable efforts to preserve the\nconfidentiality of the Review Material, including, without limitation, by putting forth commercially reasonable efforts in cooperating with the\nFurnishing Party to assist in obtaining an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nReview Material.\n3. Limitation on Obligations. The obligations of the Receiving Party specified in Section 2 shall not apply, and the Receiving Party shall have\nno further obligations, with respect to any Review Material to the extent that (a) such Review Material was, is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement, (b) such Review Material\nwas in the possession of Receiving Party or its Representatives prior to its disclosure to the Receiving Party or its Representatives by the Furnishing\nParty or its Representatives pursuant hereto, provided that the source of such information was not known by the Receiving Party to be bound by a\ncontractual, legal or fiduciary obligation of confidentiality to the Furnishing Party with respect to such information, (c) such Review Material was, is\nor becomes available to the Receiving Party or its Representatives on a non-confidential basis from a source other than the Furnishing Party or its\nRepresentatives acting on its behalf, provided that such source is not known by Receiving Party or its Representatives to be bound by a\nconfidentiality agreement with the Furnishing Party, or (d) such Review Material has been or is subsequently independently conceived or developed\nby the Receiving Party or its Representatives without use of or reference to the Review Material.\n4. Term; Return of Review Material. Except as otherwise set forth in Section 7 or elsewhere in this Agreement, this Agreement shall have a\nterm of eighteen months. At any time upon the request of the Furnishing Party for any reason or for no reason, the Receiving Party will, within a\ncommercially reasonable time frame and at its sole option, either deliver to the Furnishing Party all Review Material provided by the Furnishing\nParty or its Representatives acting on its behalf to the Receiving Party (including all copies and summaries or synopses thereof, including, without\nlimitation, all computer and electronic files) or cause all such Review Material to be destroyed, provided, that the Receiving Party and its\nRepresentatives may retain Review Material for its files to the extent required by its respective record retention policies or to comply with legal\nand/or regulatory requirements. Such return or destruction, as applicable, of all Review Material by the Receiving Party and its Representatives shall\nbe certified by an officer of the Receiving Party in a writing delivered to the Furnishing Party. Notwithstanding the return or destruction of Review\nMaterial, the Receiving Party and the Company and their respective Representatives will continue to be bound by their obligations of confidentiality\nand other obligations hereunder for the term of this Agreement.\n5. No Commitment; No Representation or Warranty.\n(a) No contract or agreement with respect to a Potential Transaction shall be deemed to exist unless and until a definitive and binding\ncontract relating thereto has been executed and delivered (a “Definitive Agreement”), and each of the Receiving Party and the Company hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other based on the purported\nexistence of any such contract or agreement unless and until, and only to the extent that, the Receiving Party and the Company shall have entered\ninto a Definitive Agreement with respect to which a breach is alleged. The term “Definitive Agreement” does not include an executed letter of intent\nor any other preliminary written agreement, nor does it include any written or verbal agreement in principle or acceptance of an offer or bid, except\nto the extent otherwise provided therein. Neither the Receiving Party nor the Company shall have any legal obligation of any kind whatsoever with\nrespect to a possible business transaction by virtue of this Agreement or any other written or oral expression with respect to a possible business\ntransaction except, in the case of this Agreement, for the matters specifically agreed to herein. The Receiving Party further acknowledges and agrees\nthat the Company reserves the right, in it sole discretion, to reject any and all proposals made by the Receiving Party or any of its Representatives\nwith regard to a Potential Transaction between the Company and the Receiving Party, and to terminate discussions and negotiations with the\nReceiving Party at any time. The Receiving Party also acknowledges that the Company and its Representatives shall be free to conduct any process\nfor any transaction involving the Company as it shall determine in its sole discretion, including, without limitation, negotiating with any other\ninterested parties and entering into a Definitive Agreement without prior notice to the Receiving Party or its Representatives. Likewise, Receiving\nParty reserves the right to terminate discussions or negotiations with the Company at any time.\n(b) Each of the Receiving Party and the Company understands and acknowledges that neither the Furnishing Party nor its\nRepresentatives is making any representation or warranty as to the accuracy or completeness of any Review Material. Neither the Furnishing Party\nnor its Representatives shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of the Review\nMaterial. Only those representations or warranties which are made in a Definitive Agreement, when, as and if executed, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect. Furthermore, nothing contained in this Agreement nor the\nfurnishing of Review Material shall be construed as granting or conferring any rights by license or otherwise in any intellectual property of the\nFurnishing Party, except for a limited right of use as specifically set forth herein. All right, title and interest in the Review Material shall remain with\nthe Furnishing Party.\n6. Current Equity Ownership; Derivative Transactions. The Receiving Party hereby represents to the Company that, as of the date hereof, it\nand its affiliates and associates (as such terms are defined in Rule 12b-2 under the Exchange Act), together with any other person with whom it is\nacting in concert in connection with this matter or have formed a “group” within the meaning of Section 13(d)(3) of the Exchange Act (a “Group\nMember”) beneficially own in the aggregate less than 5% of the outstanding shares of Common Stock of the Company. The Receiving Party hereby\nrepresents to the Company that, as of the date hereof, no agreement, arrangement, or understanding (including without limitation, any derivative or\nshort positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) has been\nentered into by or on behalf of, and no agreement, arrangement or understanding has been made, the effect or intent of which is to mitigate loss, to\nmanage risk or to benefit from changes in the share price of any of the Company’s securities, or increase or decrease the voting power with respect to\nany of the Company’ securities, by the Receiving Party or its affiliates or associates (as such terms are defined in Rule 12b-2 under the Exchange\nAct) or any other Group Members of the Receiving Party and to which the Company is not a party. The Receiving Party hereby represents that each\nand every Group Member will be executing a copy of this Agreement, which will be promptly forwarded to the Company.\n7. Restrictions on Unsolicited Acquisition Activities. The Receiving Party acknowledges that the Review Information is being furnished to the\nReceiving Party in consideration of its agreement that the Receiving Party will not, and will direct its affiliates, directors, officers, employees and\nagents not to, directly or indirectly, for a period of one year from the date of this Agreement unless in any such case specifically invited in writing to\ndo so by the Board of Directors of the Company:\n(a) make any public announcement with respect to any proposal for, a transaction between the Company or any of its security holders\nand the Receiving Party (and/or any of the Receiving Party’s affiliates), whether or not any third parties are also involved, directly or indirectly, in\nsuch proposal or transaction, unless such proposal is directed and disclosed solely to the management of the Company and its designated\nrepresentatives, and in the case of any such proposal from or involving parties in addition to, or other than, the Receiving Party, the Company has\ngiven its advance written consent to the involvement of such additional or other parties;\n(b) other than pursuant to a prior written agreement with the Company, purchase, acquire or own, or offer to agree to purchase, acquire or\nown, directly or indirectly, any voting securities or direct or indirect rights (pursuant to an exchange, conversion, pledge or otherwise) or options to\nacquire any voting securities of the Company, except that affiliates of the Receiving Party may, in the aggregate, own beneficially or of record,\ndirectly or indirectly, up to 2.5% of the outstanding voting securities of the Company;\n(c) enter into any agreement, arrangement, or understanding (including, without limitation, any derivative or short positions, profit\ninterests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares), the effect or intent of which is\nto mitigate loss, to manage risk or to benefit from changes in the share price of any of the Company’s securities, or increase or decrease the voting\npower with respect to any of the Company’s securities;\n(d) other than pursuant to a prior written agreement with the Company, make or in way participate in, directly or indirectly, any\n“solicitation” or “proxies” (as such terms are defined or used in Regulation 14 under the Exchange Act) or become a “participant” in an “election\ncontest” (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or seek to advise or influence any\nperson with respect to the voting of any voting securities of the Company;\n(e) execute any written consent in lieu of a meeting of holders of any class of securities of the Company unless such written consent is\nsolicited by the Board of Directors of the Company;\n(f) initiate, propose or otherwise solicit shareholders for the approval of one or more stockholder proposals with respect to the Company\nas described in Rule 14a-8 under the Exchange Act or induce or attempt to induce any other person to do so;\n(g) other than pursuant to a prior written agreement with the Company, acquire or affect the control of the Company or directly or\nindirectly participate in or encourage the formation of any “group” (within the meaning of Section 13(d)(3) of the Exchange Act which owns or\nseeks to acquire ownership of voting securities of the Company, or to acquire or affect control of the Company;\n(h) call or seek to have called any meeting of the stockholders of the Company;\n(i) seek election to or seek to place a representative on the Board of Directors of the Company or seek the removal of any member of the\nBoard of Directors of the Company or a change in the composition or size of the Board of Directors of the Company;\n(j) other than pursuant to a prior written agreement with the Company, otherwise act, directly or indirectly, alone or in concert with\nothers, to seek to control or to influence in any manner the management, board of directors, policies or affairs of the Company, or propose to seek to\neffect nor negotiate with or provide financial assistance (by loan, capital contribution or otherwise) or information to any party with respect to any\nform of business combination transaction (including, without limitation, a merger, consolidation or acquisition or disposition of significant assets of\nthe Company or any other entity) with the Company or any affiliate thereof or any restructure, recapitalization or similar transaction with respect to\nthe Company or any affiliate thereof;\n(k) instigate, encourage, assist or render advice to or make any recommendation or proposal to any person or other entity to engage in\nany of the actions covered by clauses (a) through (j) of this Section 7, or render advice with respect to voting securities of the Company;\n(1) take any action, other than pursuant to a prior written agreement with the Company, that might force the Furnishing Party to make a\npublic announcement regarding any of the types of matters set forth in this Section 7;\n(m) except to the extent required by law, make any public statement (or make available to any member of the news media any\ninformation) with respect to any of the matters covered by this Section 7, or with respect to the terms and conditions of, or any of the facts related to,\nthis Agreement; or\n(n) require, other than pursuant to a prior written agreement with the Company, any waiver, modification, termination or amendment of\nthis Section 7 of the relinquishment by the Company of any rights with respect thereto.\nNothing contained in this Section 7 shall restrict the Receiving Party from making a cash tender offer for all of the outstanding capital stock of the\nCompany after such time as both (i) a third party has commenced, within the meaning of Rule 14d-2 of the Exchange Act, a cash tender offer for the\nCompany at a lower price per share than the price per share offered by the Receiving Party in its tender offer and (ii) the Company has recommended\nto its stockholders that they accept such third party’s tender offer.\n8. Rule 10b-5 Limitations. The Receiving Party and the Company each hereby acknowledges to the other that it is aware (and, if applicable,\nthat its Representatives who are apprised of this matter have been advised) that the United States securities laws prohibit any person who has\nmaterial non-public information about a company from purchasing or selling securities of such company, or from communicating such information\nto any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. Non-Solicitation of Employees. In consideration of and as a condition to the Company furnishing Review Material under this Agreement,\nthe Receiving Party agrees that for a period of eighteen months from the date of this Agreement, neither the Receiving Party nor any of its affiliates\nwho have received Review Material will, directly or indirectly, solicit to employ any of the current senior-level officers or employees of the\nCompany or its subsidiaries (so long as they are employed by the Company or its subsidiaries) without obtaining the prior written consent of the\nCompany (it being understood that any newspaper or other general solicitation not directed specifically to such person shall not be deemed to be a\nsolicitation for purposes of this provision).\n10. Conduct of Process. The Receiving Party understands and agrees that (a) all inquiries, requests for information and other communications\nwith the Company regarding the Potential Transaction shall be made only through Excel Partners, (b) the Receiving Party will not (and will direct its\nRepresentatives not to) initiate contact with parties known by it to be current employees, customers or suppliers of the Company with respect to the\nPotential Transaction, (c) the Receiving Party will not (and will direct its Representatives not to) discuss any matters relating to the Potential\nTransaction or an employee’s position with, or interest in, the Company after the transaction with any current employee of the Company without the\nprior consent of the Company, (d) the Company and its Representatives shall be free to conduct the process relating to the Potential Transaction in\nsuch manner as it in its sole discretion shall determine (including, without limitation, negotiating with any of the prospective parties and entering into\nan agreement to effect a Potential Transaction without prior notice to the Receiving Party or any other person), (e) any procedures relating to such\nsale may be changed at any time without notice to the Receiving Party or any other person and (f) the Receiving Party shall not have any rights or\nclaims whatsoever against the Company or any of Representatives arising out of or relating to the Potential Transaction (other than any rights or\nclaims arising out of any Definitive Agreement in accordance with its terms). For the avoidance of doubt, nothing herein shall prevent the Receiving\nParty or its Representatives from performing usual and customary due diligence so long as they do not disclose the existence of a Potential\nTransaction.\n11. Remedies. The Receiving Party and the Company agree that money damages may not be a sufficient remedy for any breach of this\nAgreement by it or its Representatives and that the other party shall be entitled to seek equitable relief, including an injunction and specific\nperformance, as a remedy for any such breach. The Receiving Party and the Company agree to waive any requirement for the posting of a bond in\nconnection with any such equitable relief. Such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement by the\nReceiving Party or the Company or their respective Representatives, but shall be in addition to all other remedies available at law or in equity to the\nother. In the event that either party successfully enforces its obligations hereunder, the other party shall reimburse the enforcing party for all\nreasonable costs and expenses, including reasonable attorneys’ fees, incurred by the enforcing party in this regard. To the extent that any Review\nMaterial may include materials subject to the attorney-client privilege, work-product doctrine or any other applicable privilege concerning pending\nor threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with\nrespect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not,\nwaive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work-product\ndoctrine or other applicable privilege. All Review Material that is entitled to protection under the attorney-client privilege, work-product doctrine\nand other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint-defense doctrine.\n12. As part of this agreement, Receiving Party wishes to advise the Company that it makes investments in other companies in the ordinary\ncourse of business and, as a result of such investments, such companies may be deemed to be affiliated or associated with it. In addition, certain\npersons and entities that may be deemed to be affiliated or associated with Receiving Party represent large organizations over which it has little or no\ncontrol. To the extent that it does not disclose Review Material to any such company, person or entity, the terms of this agreement shall not apply to\nsuch companies, persons or entities, and no such company, person or entity shall be deemed to have been provided with the Review Material solely\nas a result of any of Receiving Party’s Representatives (whether such person has been provided with or has knowledge of the Review Material)\nserving on the board of such company, person, or entity.\n13. Miscellaneous. This Agreement constitutes the final agreement between the parties hereto. It is the complete and exclusive expression of\nthe parties’ agreement on the subject matter of this Agreement. This Agreement supersedes all other oral or written agreements or policies relating to\nthis Agreement. No amendment of this Agreement will be effective unless it is in writing and signed by the parties. No waiver of satisfaction of a\ncondition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the\nwaiver, and no such waiver will constitute a waiver of satisfaction of any other condition or nonperformance of any other obligation. It is further\nunderstood and agreed by the Receiving Party and the Company that no failure or delay by the other party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right power or privilege hereunder. No party may assign any part of its rights or delegate any performance under this Agreement\nexcept with the other party’s prior written consent, provided that consent shall not be required for transfer or assignment pursuant to merger,\nconsolidation or sale of substantially all of the assets of a party). Any purported assignment of rights or delegation of performance in violation of this\nSection 13 is void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective heirs,\nsuccessors and assigns. The laws of the State of Delaware, without giving effect to principles of conflict of laws, govern all matters arising out of or\nrelating to this Agreement. Each party hereto consents to exclusive personal jurisdiction in the State of Delaware and voluntarily submits to the\njurisdiction of the courts of the State of Delaware in any action or proceeding with respect to this Agreement, including the federal district courts\nlocated in such State. Each party agrees that it may be served with process at its address set forth on the first page hereof. If any portion or provision\nof this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement,\nor the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be\naffected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement which will constitute our legally binding\nagreement with respect to the subject matter of this letter.\nVery truly yours,\nBioClinica, Inc.\nBy: /s/ Ted I. Kaminer\nName: Ted I. Kaminer\nTitle: CFO\nACKNOWLEDGED, AGREED AND CONFIRMED:\nJLL Partners, Inc.\nBy:\n/s/ Andrew Goldfarb\nName:\nAndrew Goldfarb\nTitle:\nVice President\nDate:\nOctober 15, 2012
43b69303f4e6e3dcd8df323020a6453e.pdf	effective_date jurisdiction party term	EX-99.E .25 14 dex99e25.htm MUTUAL NONDISCLOSURE AGREEMENT BETWEEN THE COMPANY &\nXEROX\nExhibit (e)(25)\nMutual Non-Disclosure Agreement\nMutual Non-Disclosure Agreement by and between Xerox Corporation, a New York corporation (“Xerox”) and Global Imaging Systems, Inc., a\nDelaware corporation (“Participant”). In order to explore the possibility of entering into a business relationship (which relationship may take one or\nmore of many forms including, without limitation, joint venture, partnership, investment, equity or asset acquisition, supply agreement or services\nagreement), Xerox and Participant wish to exchange and protect certain confidential information (as defined below). Therefore, Xerox, for itself and\nits subsidiaries and affiliates, and Participant, for itself and its subsidiaries and affiliates, (Xerox and Participant are hereinafter each individually\nreferred to as a “Party” and collectively referred to as the “Parties”) agree that:\n1. The effective date of this non-disclosure agreement (this “Agreement”) is February 12, 2007 (the “Effective Date”).\n2.\n“Confidential Information” shall mean all business information of a Discloser (as defined below) that is disclosed or furnished after the\nEffective Date to a Recipient (as defined below) or its Representative (as defined below) by or on behalf of a Discloser, whether in written,\noral, electronic, Web site-based or other form, and includes any copies, reports, analyses, compilations, studies, notes. Interpretations or other\ndocuments prepared by a Recipient which contain, otherwise reflect or are generated from such information. Confidential Information\nincludes, but is not limited to, customer and vendor-related data, services/support information, and information about products, strategies and\nplans. This Agreement also includes Confidential Information acquired during any facilities tours.\n3. The Confidential Information shall be kept confidential and a Recipient shall not disclose any of the Confidential Information in any manner\nwhatsoever; provided, however, that the Recipient may disclose the Confidential Information only to those of the Recipient’s Representatives\nwho need to know such information for the sole purpose of evaluating a Potential Transaction (as defined below), who agree to keep such\ninformation confidential and who will be bound by the terms hereof to the same extent as if they were parties hereto. In any event, the\nRecipient shall be responsible for any failure to comply with the terms of this Agreement by any of its Representatives and the Recipient\nagrees, at its sole expense, to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of\nthe Confidential Information. “Representative” shall mean, as to any Party, such Party’s directors, officers, members, partners, employees,\nagents, advisors (including financial advisors, legal counsel and accountants) and controlling persons.\n4. Additionally, without the prior written consent of the Discloser, the Recipients and their Representatives shall not disclose to any other person\nthat the Confidential Information has been made available to the Recipients, that meetings, discussions or negotiations have taken, are taking\nor will take place between the Parties concerning a Potential Transaction or any of the terms, conditions or other matters discussed with respect\nthereto (including the status thereof), except as may be required by law.\n5. The Parties receiving Confidential Information (each, a “Recipient”) from the other Parties disclosing Confidential Information (each, a\n“Discloser”) will use the Confidential Information solely for the purpose of evaluating or undertaking a possible business relationship with or\nregarding the other Party (a “Potential Transaction”), and not for the purpose of forming, operating or participating in a competitive venture or\nany other purpose. A Recipient shall not intentionally use the Confidential Information in any way directly or indirectly detrimental to a\nDiscloser. In particular, each Recipient agrees that the Recipient shall not knowingly, use Confidential Information to divert or attempt to\ndivert any business or customer of a Discloser, or use any such knowledge of information competitively against a Discloser.\n6. Each Party and its respective Representatives will arrange for appropriate contacts for due diligence purposes. It is further understood and\nagreed that all (i) communications regarding the Potential Transaction and (ii) requests for additional information, will be submitted or directed\nexclusively to Christopher Tipton on behalf of Xerox or Lawrence Paine on behalf of Participant, and that neither Party, nor any of their\nrespective Representatives, will initiate or cause to be initiated any communication with any Representative of the other Party (other than as\nprovided herein) concerning the Confidential Information or the Potential Transaction.\n7. Each Party agrees that, (i) each Party shall be free to terminate the other Party’s and such other Party’s Representatives’ access to the\nConfidential Information at any time and to conduct the process for the Potential Transaction as it in its sole discretion shall determine\n(including, without limitation, negotiating with any person and entering into definitive agreements without prior notice to the other Party or\nany other person), (ii) any procedures relating to the Potential Transaction may be changed at any time without notice to the other Party or any\nother person and (iii) each Party shall have the right to reject or accept any potential proposal or offer, for any reason whatsoever, in its sole\ndiscretion and to terminate discussions and negotiations with the other party at any time. Notwithstanding the termination of discussions\nregarding a Potential Transaction, the provisions of this Agreement and the obligations created under it shall survive.\n8. Unless the Parties otherwise agree in writing, a Recipient’s duty to protect Confidential Information expires two years from the Effective Date.\nA Recipient will use the same degree of care, but no less than a reasonable degree of care, as the Recipient uses with respect to its own similar\ninformation to protect the Confidential Information and to prevent (a) any use of Confidential Information not authorized in this Agreement,\n(b) dissemination of Confidential Information to any employee of Recipient without a need to know, (c) communication of Confidential\nInformation to any third party or (d) publication of Confidential Information.\n9. If either Party determines that it does not wish to proceed with a Potential Transaction, it will promptly inform the other Party of that decision.\nAt any time upon the request of any Discloser for any reason, each Recipient will promptly deliver to the Discloser all Confidential\nInformation furnished in tangible form to the Recipient or its Representatives by or on behalf of the Discloser pursuant hereto, will destroy all\ncopies, extracts or other reproductions thereof, whether in paper, electronic or other format or media, and no copy, extract or other reproduction\nof any Confidential Information shall be retained, whether in paper, electronic or other format or media, by any Recipient or its\nRepresentatives. Notwithstanding the return of the Confidential Information, each Recipient and its Representatives will continue to be bound\nby their obligations of confidentiality and other obligations hereunder.\n10. This Agreement imposes no obligation upon a Recipient with respect to Confidential Information which (a) the Recipient can demonstrate was\nalready in its possession before receipt from the Discloser; (b) is or becomes publicly available through no fault of the Recipient in violation of\nthis Agreement; (c) is rightfully received by the Recipient from a third party not known by the Recipient to be subject to a duty\nof confidentiality to the Discloser; (d) is independently developed by the Recipient without reference to any Confidential Information disclosed\nby the Discloser and without a breach of this Agreement; (e) is disclosed under operation of law; or (f) is disclosed by the Recipient with the\nDiscloser’s prior written approval. Further, for purposes of this Agreement, Confidential Information shall be limited to information of a\nbusiness nature and the term Confidential Information shall not include proprietary technical information of a party, including confidential\nprocesses, formulations, designs, source code or other information that would otherwise be considered technical in nature or that could be used\nin the creation of a product, solution or business process. It being expressly understood that such proprietary technical information is not\nsubject to the confidentiality obligations set forth in this Agreement. The parties acknowledge that in the future they may execute and deliver a\nseparate confidential disclosure agreement relating to proprietary technical information. If a Recipient is required by a government body or\ncourt of law to disclose Confidential Information, the Recipient agrees to give the Discloser prompt written notice so that Discloser may\ncontest the disclosure or seek a protective order. If, in the absence of a protective order or other remedy or the receipt of a waiver by the\nDiscloser, the Recipient is, in its reasonable opinion legally compelled to disclose Confidential Information to any tribunal or else stand liable\nfor contempt or suffer other censure or penalty, the Recipient may disclose only that portion of the Confidential Information which it\nreasonably believes is legally required to be disclosed, provided that the Recipient exercises its reasonable efforts to preserve the\nconfidentiality of the Confidential Information, including by cooperating with the Discloser, at the Discloser’s expense, to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such\ntribunal. The terms of confidentiality under this Agreement shall not be construed to limit a Recipient’s right to independently develop or\nacquire products or technologies without use of the Confidential Information. Each Discloser acknowledges that each Recipient may currently\nor in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential\nInformation. Accordingly, nothing in this Agreement will be construed as a representation or agreement that a Recipient will not develop or\nhave developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the Confidential Information provided that such Recipient does not violate any of its obligations\nunder this Agreement in connection with such development. Further, each Recipient shall be permitted to use the Residuals related to its\ncurrent or future business activities, which result from access to or work with such Confidential Information, provided that each Recipient shall\nmaintain the confidentiality of the Confidential Information as provided herein, and such use shall not be for the purposes of reverse\nengineering. The term “Residuals” means any and all Confidential Information in intangible form that may be retained in the “unaided”\nmemory of a person having access to that information, including ideas, concepts, know-how or techniques contained therein. For purposes of\nthis Section a person’s memory is considered to be “unaided” if the person has not intentionally memorized or set down intangible form, the\nConfidential Information for the purpose of retaining and subsequently using or disclosing it. Each Recipient’s use of such Residuals remains\nsubject to valid copyrights, patents and trade secret rights of each Discloser. Each Recipient shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of Residuals that is not in violation of the terms of this\nAgreement.\n11. NO WARRANTIES ARE MADE AND NO RESPONSIBILITY OR LIABILITY IS OR WILL BE ACCEPTED BY EITHER PARTY\nIN RELATION TO OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION OR IN\nRELATION TO OR RESULTING FROM THE USE OF THE CONFIDENTIAL INFORMATION. ALL CONFIDENTIAL\nINFORMATION IS PROVIDED “AS IS.”\nEach Party agrees that it is not entitled to rely on the accuracy or completeness of any Confidential Information and that it shall be entitled to\nrely solely on such representations or warranties regarding Confidential Information as may be made in any definitive agreement relating to the\nPotential Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\n12. No Party acquires any intellectual property rights under this Agreement except the limited rights necessary to carry out the purposes as set\nforth in this Agreement.\n13. Except as provided in a definitive agreement relating to a Potential Transaction, from the Effective Date and for a period ending one year from\nthe date on which the Parties have terminated discussions concerning a Potential Transaction, each Party agrees not to, either directly or\nthrough others, solicit, initiate discussions with or attempt to solicit for employment any present officer or management employee of the other\nParty with whom it has contact, or who becomes known to it, during the discussions concerning a Potential Transaction (other than persons\nwho no longer are officers, employees, consultants or independent contractors of such other Party at the time discussions are terminated) to\nterminate his or her relationship with the other Party, provided, however, that the foregoing restriction shall not apply to any such officer or\nemployee who (a) responds to a general solicitation for employment contained in a newspaper, trade publication or other periodical, or\n(b) responds to a general solicitation for employment by a recruiter who is making solicitations for a Party or its Representatives generally, so\nlong as such solicitation is not directly or indirectly directed by any of such Party’s or its Representative’s personnel who is aware of this\nAgreement and/or the fact that the Parties are exploring a Potential Transaction with each other. Notwithstanding the foregoing, no person\nemployed by a Party shall in any way directly or indirectly use the information contained in the Confidential Information to solicit for\nemployment any employee of the other Party or any of its subsidiaries with whom it has had contact or who became known to it in connection\nwith the consideration of a Potential Transaction. The foregoing notwithstanding, Xerox agrees that for a period of twelve (12) months from\nthe date hereof, neither Xerox nor any of its affiliates will (or assist or encourage others to), directly or indirectly, solicit for employment or\nemploy any of the persons listed on the attached Schedule A.\n14. Each Party acknowledges that money damages for improper disclosure of Confidential Information or other breach of this Agreement would\nnot be a sufficient remedy; therefore, the injured Party shall be entitled to equitable relief, including Injunction, preliminary Injunction and\nspecific performance, in addition to all other remedies available at law or in equity.\n15. The obligations and duties imposed by this Agreement with respect to any Confidential Information may be enforced by the Discloser of such\nConfidential Information against any and all Recipients of such Confidential Information.\n16. This Agreement is made under, and will be construed according to, the laws of the State of Delaware, USA.\n17. If any provision of this Agreement is found to be invalid or unenforceable in whole or in part, the Parties agree the remaining provisions of this\nAgreement shall remain valid and enforceable to the maximum extent compatible with existing law.\n18. This Agreement does not create any agency or partnership relationship. Each Party understands and agrees that no commitment, contract or\nagreement providing for a Potential Transaction shall be deemed to exist unless and until a final definitive agreement has been executed and\ndelivered, and each Party hereby waives, in advance, any claims (including claims of breach of contract) in connection with a Potential\nTransaction (except for claims under this Agreement) unless and until the Parties shall have entered into a final definitive agreement with\nrespect thereto. Each Party also agrees that unless and until a definitive agreement between the Parties with respect to any Potential\nTransaction has been executed and delivered, neither Party is under any legal obligation of any kind whatsoever with respect to a Potential\nTransaction except for the matters specifically agreed to in this Agreement. This Agreement contains the entire agreement between the Parties\nconcerning the matters referred to herein.\n19. This Agreement will not be assignable or transferable without the prior written consent of the other Party. All additions or modifications to this\nAgreement must be made in writing and must be signed by all Parties. No failure or delay by either Party in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but together shall constitute the same\ninstrument. Each Party agrees that facsimile signatures will have the same legal effect as originals signatures and may be used as evidence of\nexecution.\n21. Xerox hereby acknowledges that the Confidential Material is being furnished to it in consideration of its agreement that, unless otherwise\nagreed in writing by the Participant, for a period of twelve (12) months from the date hereof neither Xerox nor any of its affiliates will\n(a) propose or announce any intention to propose to the Participant or any other person any transaction between Xerox and/or its affiliates and\nthe Participant and/or its security holders or involving any of the Participant’s securities or security holders; (b) acquire or assist, advise or\nencourage any other persons in acquiring, directly or indirectly, control of the Participant or any of the Participant’s securities (or beneficial\nownership thereof, or rights or options to acquire any such securities) constituting 5% or more of a class of equity securities of Participant,\nbusinesses or assets: (c) directly or indirectly, form, join or in any way participate in a third party “group” (or discuss with any third party the\npotential formation of a group) with respect to any potential acquisition or other strategic transaction involving all or a portion of the assets or\nsecurities of the Participant; (d) make, or participate in, any “solicitation” of “proxies” to vote or seek to advise or influence in any manner\nwhatsoever any person or entity with respect to the voting of any securities of the Participant, or whether alone or in concert with others, to\nseek to control, change or influence the management, Board of Directors or policies of the Participant, or nominate any person as a Director of\nthe Participant, or propose any matter to be voted upon by the stockholders of the Participant; (e) request the Participant (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (f), except as may\notherwise be required by law rule or regulation, take any action that might be reasonably expected to require the Participant to make a public\nannouncement regarding a possible transaction.\n22. This Agreement will terminate and no longer be of any force or effect two (2) years from the Effective Date.\nXEROX CORPORATION\nPARTICIPANT\nBy:\n/s/ Lawrence A. Zimmerman\nBy:\n/s/ Lawrence Paine\nName:\nLawrence A. Zimmerman\nName:\nLawrence Paine\nTitle:\nSenior Vice President and CFO\nTitle:\nSenior Vice President and General Counsel\nAddress:\n800 Long Ridge Road\nAddress:\n3820 North dale Blvd.\nCity, State, Zip: Stamford, CT 06904\nCity, State, Zip: Tampa, FL 33624\nDate:\n2/15/07\nDate:\n2/15/07	EX-99.E.25 14 dex99e25.htm MUTUAL NONDISCLOSURE AGREEMENT BETWEEN THE COMPANY &\nXEROX\nExhibit (e)(25)\nMutual Non-Disclosure Agreement\nMutual Non-Disclosure Agreement by and between Xerox Corporation, a New York corporation (“Xerox”) and Global Imaging Systems, Inc., a\nDelaware corporation (“Participant”). In order to explore the possibility of entering into a business relationship (which relationship may take one or\nmore of many forms including, without limitation, joint venture, partnership, investment, equity or asset acquisition, supply agreement or services\nagreement), Xerox and Participant wish to exchange and protect certain confidential information (as defined below). Therefore, Xerox, for itself and\nits subsidiaries and affiliates, and Participant, for itself and its subsidiaries and affiliates, (Xerox and Participant are hereinafter each individually\nreferred to as a “Party” and collectively referred to as the “Parties”) agree that:\n1. The effective date of this non-disclosure agreement (this “Agreement”) is February 12, 2007 (the “Effective Date”).\n2. “Confidential Information” shall mean all business information of a Discloser (as defined below) that is disclosed or furnished after the\nEffective Date to a Recipient (as defined below) or its Representative (as defined below) by or on behalf of a Discloser, whether in written,\noral, electronic, Web site-based or other form, and includes any copies, reports, analyses, compilations, studies, notes. Interpretations or other\ndocuments prepared by a Recipient which contain, otherwise reflect or are generated from such information. Confidential Information\nincludes, but is not limited to, customer and vendor-related data, services/support information, and information about products, strategies and\nplans. This Agreement also includes Confidential Information acquired during any facilities tours.\n3. The Confidential Information shall be kept confidential and a Recipient shall not disclose any of the Confidential Information in any manner\nwhatsoever; provided, however, that the Recipient may disclose the Confidential Information only to those of the Recipient’s Representatives\nwho need to know such information for the sole purpose of evaluating a Potential Transaction (as defined below), who agree to keep such\ninformation confidential and who will be bound by the terms hereof to the same extent as if they were parties hereto. In any event, the\nRecipient shall be responsible for any failure to comply with the terms of this Agreement by any of its Representatives and the Recipient\nagrees, at its sole expense, to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of\nthe Confidential Information. “Representative” shall mean, as to any Party, such Party’s directors, officers, members, partners, employees,\nagents, advisors (including financial advisors, legal counsel and accountants) and controlling persons.\n4.  Additionally, without the prior written consent of the Discloser, the Recipients and their Representatives shall not disclose to any other person\nthat the Confidential Information has been made available to the Recipients, that meetings, discussions or negotiations have taken, are taking\nor will take place between the Parties concerning a Potential Transaction or any of the terms, conditions or other matters discussed with respect\nthereto (including the status thereof), except as may be required by law.\n5. The Parties receiving Confidential Information (each, a “Recipient”) from the other Parties disclosing Confidential Information (each, a\n“Discloser”) will use the Confidential Information solely for the purpose of evaluating or undertaking a possible business relationship with or\nregarding the other Party (a “Potential Transaction”), and not for the purpose of forming, operating or participating in a competitive venture or\nany other purpose. A Recipient shall not intentionally use the Confidential Information in any way directly or indirectly detrimental to a\nDiscloser. In particular, each Recipient agrees that the Recipient shall not knowingly, use Confidential Information to divert or attempt to\ndivert any business or customer of a Discloser, or use any such knowledge of information competitively against a Discloser.\n6.  Each Party and its respective Representatives will arrange for appropriate contacts for due diligence purposes. It is further understood and\nagreed that all (i) communications regarding the Potential Transaction and (ii) requests for additional information, will be submitted or directed\nexclusively to Christopher Tipton on behalf of Xerox or Lawrence Paine on behalf of Participant, and that neither Party, nor any of their\nrespective Representatives, will initiate or cause to be initiated any communication with any Representative of the other Party (other than as\nprovided herein) concerning the Confidential Information or the Potential Transaction.\n7. Each Party agrees that, (i) each Party shall be free to terminate the other Party’s and such other Party’s Representatives’ access to the\nConfidential Information at any time and to conduct the process for the Potential Transaction as it in its sole discretion shall determine\n(including, without limitation, negotiating with any person and entering into definitive agreements without prior notice to the other Party or\nany other person), (ii) any procedures relating to the Potential Transaction may be changed at any time without notice to the other Party or any\nother person and (iii) each Party shall have the right to reject or accept any potential proposal or offer, for any reason whatsoever, in its sole\ndiscretion and to terminate discussions and negotiations with the other party at any time. Notwithstanding the termination of discussions\nregarding a Potential Transaction, the provisions of this Agreement and the obligations created under it shall survive.\n8. Unless the Parties otherwise agree in writing, a Recipient’s duty to protect Confidential Information expires two years from the Effective Date.\nA Recipient will use the same degree of care, but no less than a reasonable degree of care, as the Recipient uses with respect to its own similar\ninformation to protect the Confidential Information and to prevent (a) any use of Confidential Information not authorized in this Agreement,\n(b) dissemination of Confidential Information to any employee of Recipient without a need to know, (¢) communication of Confidential\nInformation to any third party or (d) publication of Confidential Information.\n9.  If either Party determines that it does not wish to proceed with a Potential Transaction, it will promptly inform the other Party of that decision.\nAt any time upon the request of any Discloser for any reason, each Recipient will promptly deliver to the Discloser all Confidential\nInformation furnished in tangible form to the Recipient or its Representatives by or on behalf of the Discloser pursuant hereto, will destroy all\ncopies, extracts or other reproductions thereof, whether in paper, electronic or other format or media, and no copy, extract or other reproduction\nof any Confidential Information shall be retained, whether in paper, electronic or other format or media, by any Recipient or its\nRepresentatives. Notwithstanding the return of the Confidential Information, each Recipient and its Representatives will continue to be bound\nby their obligations of confidentiality and other obligations hereunder.\n10. This Agreement imposes no obligation upon a Recipient with respect to Confidential Information which (a) the Recipient can demonstrate was\nalready in its possession before receipt from the Discloser; (b) is or becomes publicly available through no fault of the Recipient in violation of\nthis Agreement; (c) is rightfully received by the Recipient from a third party not known by the Recipient to be subject to a duty\n11. 12. 13. 14. 15. of confidentiality to the Discloser; (d) is independently developed by the Recipient without reference to any Confidential Information disclosed\nby the Discloser and without a breach of this Agreement; (e) is disclosed under operation of law; or (f) is disclosed by the Recipient with the\nDiscloser’s prior written approval. Further, for purposes of this Agreement, Confidential Information shall be limited to information of a\nbusiness nature and the term Confidential Information shall not include proprietary technical information of a party, including confidential\nprocesses, formulations, designs, source code or other information that would otherwise be considered technical in nature or that could be used\nin the creation of a product, solution or business process. It being expressly understood that such proprietary technical information is not\nsubject to the confidentiality obligations set forth in this Agreement. The parties acknowledge that in the future they may execute and deliver a\nseparate confidential disclosure agreement relating to proprietary technical information. If a Recipient is required by a government body or\ncourt of law to disclose Confidential Information, the Recipient agrees to give the Discloser prompt written notice so that Discloser may\ncontest the disclosure or seek a protective order. If, in the absence of a protective order or other remedy or the receipt of a waiver by the\nDiscloser, the Recipient is, in its reasonable opinion legally compelled to disclose Confidential Information to any tribunal or else stand liable\nfor contempt or suffer other censure or penalty, the Recipient may disclose only that portion of the Confidential Information which it\nreasonably believes is legally required to be disclosed, provided that the Recipient exercises its reasonable efforts to preserve the\nconfidentiality of the Confidential Information, including by cooperating with the Discloser, at the Discloser’s expense, to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such\ntribunal. The terms of confidentiality under this Agreement shall not be construed to limit a Recipient’s right to independently develop or\nacquire products or technologies without use of the Confidential Information. Each Discloser acknowledges that each Recipient may currently\nor in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential\nInformation. Accordingly, nothing in this Agreement will be construed as a representation or agreement that a Recipient will not develop or\nhave developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the Confidential Information provided that such Recipient does not violate any of its obligations\nunder this Agreement in connection with such development. Further, each Recipient shall be permitted to use the Residuals related to its\ncurrent or future business activities, which result from access to or work with such Confidential Information, provided that each Recipient shall\nmaintain the confidentiality of the Confidential Information as provided herein, and such use shall not be for the purposes of reverse\nengineering. The term “Residuals” means any and all Confidential Information in intangible form that may be retained in the “unaided”\nmemory of a person having access to that information, including ideas, concepts, know-how or techniques contained therein. For purposes of\nthis Section a person’s memory is considered to be “unaided” if the person has not intentionally memorized or set down intangible form, the\nConfidential Information for the purpose of retaining and subsequently using or disclosing it. Each Recipient’s use of such Residuals remains\nsubject to valid copyrights, patents and trade secret rights of each Discloser. Each Recipient shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of Residuals that is not in violation of the terms of this\nAgreement.\nNO WARRANTIES ARE MADE AND NO RESPONSIBILITY OR LIABILITY IS OR WILL BE ACCEPTED BY EITHER PARTY\nIN RELATION TO OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION OR IN\nRELATION TO OR RESULTING FROM THE USE OF THE CONFIDENTIAL INFORMATION. ALL CONFIDENTIAL\nINFORMATION IS PROVIDED “AS IS.”\nEach Party agrees that it is not entitled to rely on the accuracy or completeness of any Confidential Information and that it shall be entitled to\nrely solely on such representations or warranties regarding Confidential Information as may be made in any definitive agreement relating to the\nPotential Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNo Party acquires any intellectual property rights under this Agreement except the limited rights necessary to carry out the purposes as set\nforth in this Agreement.\nExcept as provided in a definitive agreement relating to a Potential Transaction, from the Effective Date and for a period ending one year from\nthe date on which the Parties have terminated discussions concerning a Potential Transaction, each Party agrees not to, either directly or\nthrough others, solicit, initiate discussions with or attempt to solicit for employment any present officer or management employee of the other\nParty with whom it has contact, or who becomes known to it, during the discussions concerning a Potential Transaction (other than persons\nwho no longer are officers, employees, consultants or independent contractors of such other Party at the time discussions are terminated) to\nterminate his or her relationship with the other Party, provided, however, that the foregoing restriction shall not apply to any such officer or\nemployee who (a) responds to a general solicitation for employment contained in a newspaper, trade publication or other periodical, or\n(b) responds to a general solicitation for employment by a recruiter who is making solicitations for a Party or its Representatives generally, so\nlong as such solicitation is not directly or indirectly directed by any of such Party’s or its Representative’s personnel who is aware of this\nAgreement and/or the fact that the Parties are exploring a Potential Transaction with each other. Notwithstanding the foregoing, no person\nemployed by a Party shall in any way directly or indirectly use the information contained in the Confidential Information to solicit for\nemployment any employee of the other Party or any of its subsidiaries with whom it has had contact or who became known to it in connection\nwith the consideration of a Potential Transaction. The foregoing notwithstanding, Xerox agrees that for a period of twelve (12) months from\nthe date hereof, neither Xerox nor any of its affiliates will (or assist or encourage others to), directly or indirectly, solicit for employment or\nemploy any of the persons listed on the attached Schedule A.\n \nEach Party acknowledges that money damages for improper disclosure of Confidential Information or other breach of this Agreement would\nnot be a sufficient remedy; therefore, the injured Party shall be entitled to equitable relief, including Injunction, preliminary Injunction and\nspecific performance, in addition to all other remedies available at law or in equity.\nThe obligations and duties imposed by this Agreement with respect to any Confidential Information may be enforced by the Discloser of such\nConfidential Information against any and all Recipients of such Confidential Information.\n16.\n17.\n18.\n19.\n20.\n21.\n22.\nThis Agreement is made under, and will be construed according to, the laws of the State of Delaware, USA.\nIf any provision of this Agreement is found to be invalid or unenforceable in whole or in part, the Parties agree the remaining provisions of this\nAgreement shall remain valid and enforceable to the maximum extent compatible with existing law.\nThis Agreement does not create any agency or partnership relationship. Each Party understands and agrees that no commitment, contract or\nagreement providing for a Potential Transaction shall be deemed to exist unless and until a final definitive agreement has been executed and\ndelivered, and each Party hereby waives, in advance, any claims (including claims of breach of contract) in connection with a Potential\nTransaction (except for claims under this Agreement) unless and until the Parties shall have entered into a final definitive agreement with\nrespect thereto. Each Party also agrees that unless and until a definitive agreement between the Parties with respect to any Potential\nTransaction has been executed and delivered, neither Party is under any legal obligation of any kind whatsoever with respect to a Potential\nTransaction except for the matters specifically agreed to in this Agreement. This Agreement contains the entire agreement between the Parties\nconcerning the matters referred to herein.\nThis Agreement will not be assignable or transferable without the prior written consent of the other Party. All additions or modifications to this\nAgreement must be made in writing and must be signed by all Parties. No failure or delay by either Party in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\nThis Agreement may be executed in counterparts, each of which shall be deemed to be an original, but together shall constitute the same\ninstrument. Each Party agrees that facsimile signatures will have the same legal effect as originals signatures and may be used as evidence of\nexecution.\nXerox hereby acknowledges that the Confidential Material is being furnished to it in consideration of its agreement that, unless otherwise\nagreed in writing by the Participant, for a period of twelve (12) months from the date hereof neither Xerox nor any of its affiliates will\n(a) propose or announce any intention to propose to the Participant or any other person any transaction between Xerox and/or its affiliates and\nthe Participant and/or its security holders or involving any of the Participant’s securities or security holders; (b) acquire or assist, advise or\nencourage any other persons in acquiring, directly or indirectly, control of the Participant or any of the Participant’s securities (or beneficial\nownership thereof, or rights or options to acquire any such securities) constituting 5% or more of a class of equity securities of Participant,\nbusinesses or assets: (c) directly or indirectly, form, join or in any way participate in a third party “group” (or discuss with any third party the\npotential formation of a group) with respect to any potential acquisition or other strategic transaction involving all or a portion of the assets or\nsecurities of the Participant; (d) make, or participate in, any “solicitation” of “proxies” to vote or seek to advise or influence in any manner\nwhatsoever any person or entity with respect to the voting of any securities of the Participant, or whether alone or in concert with others, to\nseek to control, change or influence the management, Board of Directors or policies of the Participant, or nominate any person as a Director of\nthe Participant, or propose any matter to be voted upon by the stockholders of the Participant; (e) request the Participant (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (f), except as may\notherwise be required by law rule or regulation, take any action that might be reasonably expected to require the Participant to make a public\nannouncement regarding a possible transaction.\nThis Agreement will terminate and no longer be of any force or effect two (2) years from the Effective Date.\nXEROX CORPORATION PARTICIPANT By:\n/s/ Lawrence A. Zimmerman By: /s/ Lawrence Paine\nName: Lawrence A. Zimmerman Name: Lawrence Paine Title:\nSenior Vice President and CFO Title: Senior Vice President and General Counsel\nAddress: 800 Long Ridge Road Address: 3820 North dale Blvd. City, State, Zip: ~ Stamford, CT 06904 City, State, Zip: Tampa, FL 33624 Date:\n2/15/07 Date: 2/15/07	EX-99.E.25 14 dex99e25.htm MUTUAL NONDISCLOSURE AGREEMENT BETWEEN THE COMPANY &\nXEROX\nExhibit (e)(25)\nMutual Non-Disclosure Agreement\nMutual Non-Disclosure Agreement by and between Xerox Corporation, a New York corporation ("Xerox") and Global Imaging Systems, Inc., a\nDelaware corporation ("Participant"). In order to explore the possibility of entering into a business relationship (which relationship may take one or\nmore\nof many forms including, without limitation, joint venture, partnership, investment, equity or asset acquisition, supply agreement or services\nagreement), Xerox and Participant wish to exchange and protect certain confidential information (as defined below). Therefore, Xerox, for itself and\nits subsidiaries and affiliates, and Participant, for itself and its subsidiaries and affiliates, (Xerox and Participant are hereinafter each individually\nreferred to as a "Party" and collectively referred to as the "Parties") agree that:\n1.\nThe effective date of this non-disclosure agreement (this "Agreement") is February 12, 2007 (the "Effective Date").\n2.\n"Confidential Information" shall mean all business information of a Discloser (as defined below) that is disclosed or furnished after the\nEffective Date to a Recipient (as defined below) or its Representative (as defined below) by or on behalf of a Discloser, whether in written,\noral, electronic, Web site-based or other form, and includes any copies, reports, analyses, compilations, studies, notes. Interpretations or other\ndocuments prepared by a Recipient which contain, otherwise reflect or are generated from such information. Confidential Information\nincludes, but is not limited to, customer and vendor-related data, services/support information, and information about products, strategies and\nplans. This Agreement also includes Confidential Information acquired during any facilities tours.\n3.\nThe Confidential Information shall be kept confidential and a Recipient shall not disclose any of the Confidential Information in any manner\nwhatsoever; provided, however, that the Recipient may disclose the Confidential Information only to those of the Recipient's Representatives\nwho need to know such information for the sole purpose of evaluating a Potential Transaction (as defined below), who agree to keep such\ninformation confidential and who will be bound by the terms hereof to the same extent as if they were parties hereto. In any event,\nthe\nRecipient shal be responsible for any failure to comply with the terms of this Agreement by any of its Representatives and the Recipient\nagrees, at its sole expense, to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of\nthe Confidential Information. "Representative" shall mean, as to any Party, such Party's directors, officers, members, partners, employees,\nagents, advisors (including financial advisors, legal counsel and accountants) and controlling persons.\n4.\nAdditionally, without the prior written consent of the Discloser, the Recipients and their Representatives shal not disclose to any other person\nthat the Confidential Information has been made available to the Recipients, that meetings, discussions or negotiations have taken, are taking\nor will take place between the Parties concerning a Potential Transaction or any of the terms, conditions or other matters discussed with respect\nthereto (including the status thereof), except as may be required by law.\n5.\nThe Parties receiving Confidential Information (each, a "Recipient") from the other Parties disclosing Confidential Information (each,\na\n"Discloser") will use the Confidential Information solely for the purpose of evaluating or undertaking a possible business relationship with or\nregarding the other Party (a "Potential Transaction"), and not for the purpose of forming, operating or participating in a competitive venture or\nany other purpose. A Recipient shall not intentionally use the Confidential Information in any way directly or indirectly detrimental to a\nDiscloser. In particular, each Recipient agrees that the Recipient shall not knowingly, use Confidential Information to divert or attempt to\ndivert any business or customer of a Discloser, or use any such knowledge of information competitively against a Discloser.\n6.\nEach Party and its respective Representatives will arrange for appropriate contacts for due diligence purposes. It is further understood and\nagreed that all (i) communications regarding the Potential Transaction and (ii) requests for additional information, will be submitted\nor\ndirected\nexclusively to Christopher Tipton on behalf of Xerox or Lawrence Paine on behalf of Participant, and that neither Party, nor any of their\nrespective Representatives, will initiate or cause to be initiated any communication with any Representative of the other Party (other than\nas\nprovided herein) concerning the Confidential Information or the Potential Transaction.\n7.\nEach Party agrees that, (i) each Party shall be free to terminate the other Party's and such other Party's Representatives' access to the\nConfidential Information at any time and to conduct the process for the Potential Transaction as it in its sole discretion shall determine\n(including, without limitation, negotiating with any person and entering into definitive agreements without prior notice to the other Party\nor\nany other person), (ii) any procedures relating to the Potential Transaction may be changed at any time without notice to the other Party or any\nother person and (iii) each Party shall have the right to reject or accept any potential proposal or offer, for any reason whatsoever, in its\nsole\ndiscretion and to terminate discussions and negotiations with the other party at any time. Notwithstanding the termination of discussions\nregarding a Potential Transaction, the provisions of this Agreement and the obligations created under it shall survive.\n8.\nUnless the Parties otherwise agree in writing, a Recipient's duty to protect Confidential Information expires two years from the Effective Date.\nA Recipient will use the same degree of care, but no less than a reasonable degree of care, as the Recipient uses with respect to its own similar\ninformation\nto\nprotect\nthe\nConfidential\nInformation\nand\nto\nprevent\n(a)\nany\nuse\nof\nConfidential\nInformation\nnot\nauthorized\nin\nthis\nAgreement,\n(b) dissemination of Confidential Information to any employee of Recipient without a need to know, (c) communication of Confidential\nInformation to any third party or (d) publication of Confidential Information.\n9.\nIf either Party determines that it does not wish to proceed with a Potential Transaction, it will promptly inform the other Party of that decision.\nAt any time upon the request of any Discloser for any reason, each Recipient will promptly deliver to the Discloser all Confidential\nInformation furnished in tangible form to the Recipient or its Representatives by or on behalf of the Discloser pursuant hereto, will destroy all\ncopies, extracts or other reproductions thereof, whether in paper, electronic or other format or media, and no copy, extract or other reproduction\nof any Confidential Information shall be retained, whether in paper, electronic or other format or media, by any Recipient or its\nRepresentatives. Notwithstanding the return of the Confidential Information, each Recipient and its Representatives will continue to be bound\nby their obligations of confidentiality and other obligations hereunder.\n10.\nThis Agreement imposes no obligation upon a Recipient with respect to Confidential Information which (a) the Recipient can demonstrate was\nalready in its possession before receipt from the Discloser; (b) is or becomes publicly available through no fault of the Recipient in violation\nof\nthis Agreement; (c) is rightfully received by the Recipient from a third party not known by the Recipient to be subject to a duty\nof confidentiality to the Discloser; (d) is independently developed by the Recipient without reference to any Confidential Information disclosed\nby the Discloser and without a breach of this Agreement; (e) is disclosed under operation of law; or (f) is disclosed by the Recipient with the\nDiscloser's prior written approval. Further, for purposes of this Agreement, Confidential Information shall be limited to information of a\nbusiness nature and the term Confidential Information shall not include proprietary technical information of a party, including confidential\nprocesses, formulations, designs, source code or other information that would otherwise be considered technical in nature or that could be used\nin the creation of a product, solution or business process. It being expressly understood that such proprietary technical information is not\nsubject to the confidentiality obligations set forth in this Agreement. The parties acknowledge that in the future they may execute and deliver a\nseparate confidential disclosure agreement relating to proprietary technical information. If a Recipient is required by a government body or\ncourt of law to disclose Confidential Information, the Recipient agrees to give the Discloser prompt written notice so that Discloser may\ncontest the disclosure or seek a protective order. If, in the absence of a protective order or other remedy or the receipt of a waiver by the\nDiscloser, the Recipient is, in its reasonable opinion legally compelled to disclose Confidential Information to any tribunal or else stand liable\nfor contempt or suffer other censure or penalty, the Recipient may disclose only that portion of the Confidential Information which it\nreasonably believes is legally required to be disclosed, provided that the Recipient exercises its reasonable efforts to preserve the\nconfidentiality of the Confidential Information, including by cooperating with the Discloser, at the Discloser's expense, to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such\ntribunal. The terms of confidentiality under this Agreement shall not be construed to limit a Recipient's right to independently develop or\nacquire products or technologies without use of the Confidential Information. Each Discloser acknowledges that each Recipient may currently\nor in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential\nInformation. Accordingly, nothing in this Agreement will be construed as a representation or agreement that a Recipient will not develop or\nhave developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the Confidential Information provided that such Recipient does not violate any of its obligations\nunder this Agreement in connection with such development. Further, each Recipient shall be permitted to use the Residuals related to its\ncurrent or future business activities, which result from access to or work with such Confidential Information, provided that each Recipient shall\nmaintain the confidentiality of the Confidential Information as provided herein, and such use shall not be for the purposes of reverse\nengineering. The term "Residuals" means any and all Confidential Information in intangible form that may be retained in the "unaided"\nmemory of a person having access to that information, including ideas, concepts, know-how or techniques contained therein. For purposes of\nthis Section a person's memory is considered to be "unaided" if the person has not intentionally memorized or set down intangible form, the\nConfidential Information for the purpose of retaining and subsequently using or disclosing it. Each Recipient's use of such Residuals remains\nsubject to valid copyrights, patents and trade secret rights of each Discloser. Each Recipient shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of Residuals that is not in violation of the terms of this\nAgreement.\n11. NO WARRANTIES ARE MADE AND NO RESPONSIBILITY OR LIABILITY IS OR WILL BE ACCEPTED BY EITHER PARTY\nIN RELATION TO OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION OR IN\nRELATION TO OR RESULTING FROM THE USE OF THE CONFIDENTIAL INFORMATION. ALL CONFIDENTIAL\nINFORMATION IS PROVIDED "AS IS."\nEach Party agrees that it is not entitled to rely on the accuracy or completeness of any Confidential Information and that it shall be entitled to\nrely solely on such representations or warranties regarding Confidential Information as may be made in any definitive agreement relating to the\nPotential Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\n12. No Party acquires any intellectual property rights under this Agreement except the limited rights necessary to carry out the purposes as set\nforth in this Agreement.\n13.\nExcept as provided in a definitive agreement relating to a Potential Transaction, from the Effective Date and for a period ending one year from\nthe date on which the Parties have terminated discussions concerning a Potential Transaction, each Party agrees not to, either directly or\nthrough others, solicit, initiate discussions with or attempt to solicit for employment any present officer or management employee of the other\nParty with whom it has contact, or who becomes known to it, during the discussions concerning a Potential Transaction (other than persons\nwho no longer are officers, employees, consultants or independent contractors of such other Party at the time discussions are terminated) to\nterminate his or her relationship with the other Party, provided, however, that the foregoing restriction shall not apply to any such officer or\nemployee who (a) responds to a general solicitation for employment contained in a newspaper, trade publication or other periodical,\nor\n(b) responds to a general solicitation for employment by a recruiter who is making solicitations for a Party or its Representatives generally, so\nlong as such solicitation is not directly or indirectly directed by any of such Party's or its Representative's personnel who is aware of this\nAgreement and/or the fact that the Parties are exploring a Potential Transaction with each other. Notwithstanding the foregoing, no person\nemployed by a Party shall in any way directly or indirectly use the information contained in the Confidential Information to solicit for\nemployment any employee of the other Party or any of its subsidiaries with whom it has had contact or who became known to it in connection\nwith the consideration of a Potential Transaction. The foregoing notwithstanding, Xerox agrees that for a period of twelve (12) months from\nthe date hereof, neither Xerox nor any of its affiliates will (or assist or encourage others to), directly or indirectly, solicit for employment or\nemploy any of the persons listed on the attached Schedule A.\n14.\nEach Party acknowledges that money damages for improper disclosure of Confidential Information or other breach of this Agreement would\nnot be a sufficient remedy; therefore, the injured Party shall be entitled to equitable relief, including Injunction, preliminary Injunction and\nspecific performance, in addition to all other remedies available at law or in equity.\n15.\nThe obligations and duties imposed by this Agreement with respect to any Confidential Information may be enforced by the Discloser of such\nConfidential Information against any and all Recipients of such Confidential Information.\n16.\nThis Agreement is made under, and will be construed according to, the laws of the State of Delaware, USA.\n17. If any provision of this Agreement is found to be invalid or unenforceable in whole or in part, the Parties agree the remaining provisions of this\nAgreement shall remain valid and enforceable to the maximum extent compatible with existing law.\n18.\nThis Agreement does not create any agency or partnership relationship. Each Party understands and agrees that no commitment, contract or\nagreement\nproviding\nfor\na\nPotential\nTransaction\nshall\nbe\ndeemed\nto\nexist\nunless\nand\nuntil\na\nfinal\ndefinitive\nagreement\nhas\nbeen\nexecuted\nand\ndelivered, and each Party hereby waives, in advance, any claims (including claims of breach of contract) in connection with a Potential\nTransaction (except for claims under this Agreement) unless and until the Parties shall have entered into a final definitive agreement with\nrespect thereto. Each Party also agrees that unless and until a definitive agreement between the Parties with respect to any Potential\nTransaction has been executed and delivered, neither Party is under any legal obligation of any kind whatsoever with respect to a Potential\nTransaction except for the matters specifically agreed to in this Agreement. This Agreement contains the entire agreement between the Parties\nconcerning the matters referred to herein.\n19.\nThis Agreement will not be assignable or transferable without the prior written consent of the other Party. All additions or modifications to this\nAgreement must be made in writing and must be signed by all Parties. No failure or delay by either Party in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but together shall constitute the same\ninstrument. Each Party agrees that facsimile signatures will have the same legal effect as originals signatures and may be used as evidence of\nexecution.\n21. Xerox hereby acknowledges that the Confidential Material is being furnished to it in consideration of its agreement that, unless otherwise\nagreed in writing by the Participant, for a period of twelve (12) months from the date hereof neither Xerox nor any of its affiliates will\n(a) propose or announce any intention to propose to the Participant or any other person any transaction between Xerox and/or its affiliates and\nthe Participant and/or its security holders or involving any of the Participant's securities or security holders; (b) acquire or assist, advise or\nencourage any other persons in acquiring, directly or indirectly, control of the Participant or any of the Participant's securities (or beneficial\nownership thereof, or rights or options to acquire any such securities) constituting 5% or more of a class of equity securities of Participant,\nbusinesses or assets: (c) directly or indirectly, form, join or in any way participate in a third party "group" (or discuss with any third party the\npotential formation of a group) with respect to any potential acquisition or other strategic transaction involving all or a portion of the assets or\nsecurities of the Participant; (d) make, or participate in, any "solicitation" of "proxies" to vote or seek to advise or influence in any manner\nwhatsoever any person or entity with respect to the voting of any securities of the Participant, or whether alone or in concert with others, to\nseek to control, change or influence the management, Board of Directors or policies of the Participant, or nominate any person as a Director\nof\nthe Participant, or propose any matter to be voted upon by the stockholders of the Participant; (e) request the Participant (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (f), except as may\notherwise be required by law rule or regulation, take any action that might be reasonably expected to require the Participant to make a public\nannouncement regarding a possible transaction.\n22. This Agreement will terminate and no longer be of any force or effect two (2) years from the Effective Date.\nXEROX CORPORATION\nPARTICIPANT\nBy:\n/s/ Lawrence A. Zimmerman\nBy:\n/s/ Lawrence Paine\nName:\nLawrence A. Zimmerman\nName:\nLawrence Paine\nTitle:\nSenior Vice President and CFO\nTitle:\nSenior Vice President and General Counsel\nAddress:\n800 Long Ridge Road\nAddress:\n3820 North dale Blvd.\nCity, State, Zip:\nStamford, CT 06904\nCity, State, Zip:\nTampa, FL 33624\nDate:\n2/15/07\nDate:\n2/15/07	EX-99.E .25 14 dex99e25.htm MUTUAL NONDISCLOSURE AGREEMENT BETWEEN THE COMPANY &\nXEROX\nExhibit (e)(25)\nMutual Non-Disclosure Agreement\nMutual Non-Disclosure Agreement by and between Xerox Corporation, a New York corporation (“Xerox”) and Global Imaging Systems, Inc., a\nDelaware corporation (“Participant”). In order to explore the possibility of entering into a business relationship (which relationship may take one or\nmore of many forms including, without limitation, joint venture, partnership, investment, equity or asset acquisition, supply agreement or services\nagreement), Xerox and Participant wish to exchange and protect certain confidential information (as defined below). Therefore, Xerox, for itself and\nits subsidiaries and affiliates, and Participant, for itself and its subsidiaries and affiliates, (Xerox and Participant are hereinafter each individually\nreferred to as a “Party” and collectively referred to as the “Parties”) agree that:\n1. The effective date of this non-disclosure agreement (this “Agreement”) is February 12, 2007 (the “Effective Date”).\n2.\n“Confidential Information” shall mean all business information of a Discloser (as defined below) that is disclosed or furnished after the\nEffective Date to a Recipient (as defined below) or its Representative (as defined below) by or on behalf of a Discloser, whether in written,\noral, electronic, Web site-based or other form, and includes any copies, reports, analyses, compilations, studies, notes. Interpretations or other\ndocuments prepared by a Recipient which contain, otherwise reflect or are generated from such information. Confidential Information\nincludes, but is not limited to, customer and vendor-related data, services/support information, and information about products, strategies and\nplans. This Agreement also includes Confidential Information acquired during any facilities tours.\n3. The Confidential Information shall be kept confidential and a Recipient shall not disclose any of the Confidential Information in any manner\nwhatsoever; provided, however, that the Recipient may disclose the Confidential Information only to those of the Recipient’s Representatives\nwho need to know such information for the sole purpose of evaluating a Potential Transaction (as defined below), who agree to keep such\ninformation confidential and who will be bound by the terms hereof to the same extent as if they were parties hereto. In any event, the\nRecipient shall be responsible for any failure to comply with the terms of this Agreement by any of its Representatives and the Recipient\nagrees, at its sole expense, to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of\nthe Confidential Information. “Representative” shall mean, as to any Party, such Party’s directors, officers, members, partners, employees,\nagents, advisors (including financial advisors, legal counsel and accountants) and controlling persons.\n4. Additionally, without the prior written consent of the Discloser, the Recipients and their Representatives shall not disclose to any other person\nthat the Confidential Information has been made available to the Recipients, that meetings, discussions or negotiations have taken, are taking\nor will take place between the Parties concerning a Potential Transaction or any of the terms, conditions or other matters discussed with respect\nthereto (including the status thereof), except as may be required by law.\n5. The Parties receiving Confidential Information (each, a “Recipient”) from the other Parties disclosing Confidential Information (each, a\n“Discloser”) will use the Confidential Information solely for the purpose of evaluating or undertaking a possible business relationship with or\nregarding the other Party (a “Potential Transaction”), and not for the purpose of forming, operating or participating in a competitive venture or\nany other purpose. A Recipient shall not intentionally use the Confidential Information in any way directly or indirectly detrimental to a\nDiscloser. In particular, each Recipient agrees that the Recipient shall not knowingly, use Confidential Information to divert or attempt to\ndivert any business or customer of a Discloser, or use any such knowledge of information competitively against a Discloser.\n6. Each Party and its respective Representatives will arrange for appropriate contacts for due diligence purposes. It is further understood and\nagreed that all (i) communications regarding the Potential Transaction and (ii) requests for additional information, will be submitted or directed\nexclusively to Christopher Tipton on behalf of Xerox or Lawrence Paine on behalf of Participant, and that neither Party, nor any of their\nrespective Representatives, will initiate or cause to be initiated any communication with any Representative of the other Party (other than as\nprovided herein) concerning the Confidential Information or the Potential Transaction.\n7. Each Party agrees that, (i) each Party shall be free to terminate the other Party’s and such other Party’s Representatives’ access to the\nConfidential Information at any time and to conduct the process for the Potential Transaction as it in its sole discretion shall determine\n(including, without limitation, negotiating with any person and entering into definitive agreements without prior notice to the other Party or\nany other person), (ii) any procedures relating to the Potential Transaction may be changed at any time without notice to the other Party or any\nother person and (iii) each Party shall have the right to reject or accept any potential proposal or offer, for any reason whatsoever, in its sole\ndiscretion and to terminate discussions and negotiations with the other party at any time. Notwithstanding the termination of discussions\nregarding a Potential Transaction, the provisions of this Agreement and the obligations created under it shall survive.\n8. Unless the Parties otherwise agree in writing, a Recipient’s duty to protect Confidential Information expires two years from the Effective Date.\nA Recipient will use the same degree of care, but no less than a reasonable degree of care, as the Recipient uses with respect to its own similar\ninformation to protect the Confidential Information and to prevent (a) any use of Confidential Information not authorized in this Agreement,\n(b) dissemination of Confidential Information to any employee of Recipient without a need to know, (c) communication of Confidential\nInformation to any third party or (d) publication of Confidential Information.\n9. If either Party determines that it does not wish to proceed with a Potential Transaction, it will promptly inform the other Party of that decision.\nAt any time upon the request of any Discloser for any reason, each Recipient will promptly deliver to the Discloser all Confidential\nInformation furnished in tangible form to the Recipient or its Representatives by or on behalf of the Discloser pursuant hereto, will destroy all\ncopies, extracts or other reproductions thereof, whether in paper, electronic or other format or media, and no copy, extract or other reproduction\nof any Confidential Information shall be retained, whether in paper, electronic or other format or media, by any Recipient or its\nRepresentatives. Notwithstanding the return of the Confidential Information, each Recipient and its Representatives will continue to be bound\nby their obligations of confidentiality and other obligations hereunder.\n10. This Agreement imposes no obligation upon a Recipient with respect to Confidential Information which (a) the Recipient can demonstrate was\nalready in its possession before receipt from the Discloser; (b) is or becomes publicly available through no fault of the Recipient in violation of\nthis Agreement; (c) is rightfully received by the Recipient from a third party not known by the Recipient to be subject to a duty\nof confidentiality to the Discloser; (d) is independently developed by the Recipient without reference to any Confidential Information disclosed\nby the Discloser and without a breach of this Agreement; (e) is disclosed under operation of law; or (f) is disclosed by the Recipient with the\nDiscloser’s prior written approval. Further, for purposes of this Agreement, Confidential Information shall be limited to information of a\nbusiness nature and the term Confidential Information shall not include proprietary technical information of a party, including confidential\nprocesses, formulations, designs, source code or other information that would otherwise be considered technical in nature or that could be used\nin the creation of a product, solution or business process. It being expressly understood that such proprietary technical information is not\nsubject to the confidentiality obligations set forth in this Agreement. The parties acknowledge that in the future they may execute and deliver a\nseparate confidential disclosure agreement relating to proprietary technical information. If a Recipient is required by a government body or\ncourt of law to disclose Confidential Information, the Recipient agrees to give the Discloser prompt written notice so that Discloser may\ncontest the disclosure or seek a protective order. If, in the absence of a protective order or other remedy or the receipt of a waiver by the\nDiscloser, the Recipient is, in its reasonable opinion legally compelled to disclose Confidential Information to any tribunal or else stand liable\nfor contempt or suffer other censure or penalty, the Recipient may disclose only that portion of the Confidential Information which it\nreasonably believes is legally required to be disclosed, provided that the Recipient exercises its reasonable efforts to preserve the\nconfidentiality of the Confidential Information, including by cooperating with the Discloser, at the Discloser’s expense, to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such\ntribunal. The terms of confidentiality under this Agreement shall not be construed to limit a Recipient’s right to independently develop or\nacquire products or technologies without use of the Confidential Information. Each Discloser acknowledges that each Recipient may currently\nor in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential\nInformation. Accordingly, nothing in this Agreement will be construed as a representation or agreement that a Recipient will not develop or\nhave developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the Confidential Information provided that such Recipient does not violate any of its obligations\nunder this Agreement in connection with such development. Further, each Recipient shall be permitted to use the Residuals related to its\ncurrent or future business activities, which result from access to or work with such Confidential Information, provided that each Recipient shall\nmaintain the confidentiality of the Confidential Information as provided herein, and such use shall not be for the purposes of reverse\nengineering. The term “Residuals” means any and all Confidential Information in intangible form that may be retained in the “unaided”\nmemory of a person having access to that information, including ideas, concepts, know-how or techniques contained therein. For purposes of\nthis Section a person’s memory is considered to be “unaided” if the person has not intentionally memorized or set down intangible form, the\nConfidential Information for the purpose of retaining and subsequently using or disclosing it. Each Recipient’s use of such Residuals remains\nsubject to valid copyrights, patents and trade secret rights of each Discloser. Each Recipient shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of Residuals that is not in violation of the terms of this\nAgreement.\n11. NO WARRANTIES ARE MADE AND NO RESPONSIBILITY OR LIABILITY IS OR WILL BE ACCEPTED BY EITHER PARTY\nIN RELATION TO OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION OR IN\nRELATION TO OR RESULTING FROM THE USE OF THE CONFIDENTIAL INFORMATION. ALL CONFIDENTIAL\nINFORMATION IS PROVIDED “AS IS.”\nEach Party agrees that it is not entitled to rely on the accuracy or completeness of any Confidential Information and that it shall be entitled to\nrely solely on such representations or warranties regarding Confidential Information as may be made in any definitive agreement relating to the\nPotential Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\n12. No Party acquires any intellectual property rights under this Agreement except the limited rights necessary to carry out the purposes as set\nforth in this Agreement.\n13. Except as provided in a definitive agreement relating to a Potential Transaction, from the Effective Date and for a period ending one year from\nthe date on which the Parties have terminated discussions concerning a Potential Transaction, each Party agrees not to, either directly or\nthrough others, solicit, initiate discussions with or attempt to solicit for employment any present officer or management employee of the other\nParty with whom it has contact, or who becomes known to it, during the discussions concerning a Potential Transaction (other than persons\nwho no longer are officers, employees, consultants or independent contractors of such other Party at the time discussions are terminated) to\nterminate his or her relationship with the other Party, provided, however, that the foregoing restriction shall not apply to any such officer or\nemployee who (a) responds to a general solicitation for employment contained in a newspaper, trade publication or other periodical, or\n(b) responds to a general solicitation for employment by a recruiter who is making solicitations for a Party or its Representatives generally, so\nlong as such solicitation is not directly or indirectly directed by any of such Party’s or its Representative’s personnel who is aware of this\nAgreement and/or the fact that the Parties are exploring a Potential Transaction with each other. Notwithstanding the foregoing, no person\nemployed by a Party shall in any way directly or indirectly use the information contained in the Confidential Information to solicit for\nemployment any employee of the other Party or any of its subsidiaries with whom it has had contact or who became known to it in connection\nwith the consideration of a Potential Transaction. The foregoing notwithstanding, Xerox agrees that for a period of twelve (12) months from\nthe date hereof, neither Xerox nor any of its affiliates will (or assist or encourage others to), directly or indirectly, solicit for employment or\nemploy any of the persons listed on the attached Schedule A.\n14. Each Party acknowledges that money damages for improper disclosure of Confidential Information or other breach of this Agreement would\nnot be a sufficient remedy; therefore, the injured Party shall be entitled to equitable relief, including Injunction, preliminary Injunction and\nspecific performance, in addition to all other remedies available at law or in equity.\n15. The obligations and duties imposed by this Agreement with respect to any Confidential Information may be enforced by the Discloser of such\nConfidential Information against any and all Recipients of such Confidential Information.\n16. This Agreement is made under, and will be construed according to, the laws of the State of Delaware, USA.\n17. If any provision of this Agreement is found to be invalid or unenforceable in whole or in part, the Parties agree the remaining provisions of this\nAgreement shall remain valid and enforceable to the maximum extent compatible with existing law.\n18. This Agreement does not create any agency or partnership relationship. Each Party understands and agrees that no commitment, contract or\nagreement providing for a Potential Transaction shall be deemed to exist unless and until a final definitive agreement has been executed and\ndelivered, and each Party hereby waives, in advance, any claims (including claims of breach of contract) in connection with a Potential\nTransaction (except for claims under this Agreement) unless and until the Parties shall have entered into a final definitive agreement with\nrespect thereto. Each Party also agrees that unless and until a definitive agreement between the Parties with respect to any Potential\nTransaction has been executed and delivered, neither Party is under any legal obligation of any kind whatsoever with respect to a Potential\nTransaction except for the matters specifically agreed to in this Agreement. This Agreement contains the entire agreement between the Parties\nconcerning the matters referred to herein.\n19. This Agreement will not be assignable or transferable without the prior written consent of the other Party. All additions or modifications to this\nAgreement must be made in writing and must be signed by all Parties. No failure or delay by either Party in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but together shall constitute the same\ninstrument. Each Party agrees that facsimile signatures will have the same legal effect as originals signatures and may be used as evidence of\nexecution.\n21. Xerox hereby acknowledges that the Confidential Material is being furnished to it in consideration of its agreement that, unless otherwise\nagreed in writing by the Participant, for a period of twelve (12) months from the date hereof neither Xerox nor any of its affiliates will\n(a) propose or announce any intention to propose to the Participant or any other person any transaction between Xerox and/or its affiliates and\nthe Participant and/or its security holders or involving any of the Participant’s securities or security holders; (b) acquire or assist, advise or\nencourage any other persons in acquiring, directly or indirectly, control of the Participant or any of the Participant’s securities (or beneficial\nownership thereof, or rights or options to acquire any such securities) constituting 5% or more of a class of equity securities of Participant,\nbusinesses or assets: (c) directly or indirectly, form, join or in any way participate in a third party “group” (or discuss with any third party the\npotential formation of a group) with respect to any potential acquisition or other strategic transaction involving all or a portion of the assets or\nsecurities of the Participant; (d) make, or participate in, any “solicitation” of “proxies” to vote or seek to advise or influence in any manner\nwhatsoever any person or entity with respect to the voting of any securities of the Participant, or whether alone or in concert with others, to\nseek to control, change or influence the management, Board of Directors or policies of the Participant, or nominate any person as a Director of\nthe Participant, or propose any matter to be voted upon by the stockholders of the Participant; (e) request the Participant (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (f), except as may\notherwise be required by law rule or regulation, take any action that might be reasonably expected to require the Participant to make a public\nannouncement regarding a possible transaction.\n22. This Agreement will terminate and no longer be of any force or effect two (2) years from the Effective Date.\nXEROX CORPORATION\nPARTICIPANT\nBy:\n/s/ Lawrence A. Zimmerman\nBy:\n/s/ Lawrence Paine\nName:\nLawrence A. Zimmerman\nName:\nLawrence Paine\nTitle:\nSenior Vice President and CFO\nTitle:\nSenior Vice President and General Counsel\nAddress:\n800 Long Ridge Road\nAddress:\n3820 North dale Blvd.\nCity, State, Zip: Stamford, CT 06904\nCity, State, Zip: Tampa, FL 33624\nDate:\n2/15/07\nDate:\n2/15/07
46b766a3ff00cb8bd64a014cd65d7db2.pdf	jurisdiction	Exhibit 10.17\nFORM OF NON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\n[For Bernard D. Berman, Ivelin M. Dimitrov, Alexander C. Frank and Todd G. Owens]\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (“Agreement”) is entered into between\n[NAME] (“Employee”) and FSC CT, Inc. (“Fifth Street”), a Connecticut corporation, as of the [__] day of [MONTH], 2014.\nIn this Agreement, Employee and Fifth Street are collectively referred to as the “parties”. The term “Company” as used in\nthis Agreement includes Fifth Street and all direct and indirect subsidiaries and affiliates of Fifth Street, including, without\nlimitation, Fifth Street Management LLC (the “Advisor”), Fifth Street Asset Management Inc. (“FSAM”), Fifth Street\nHoldings, L.P ., Fifth Street Finance Corp. (the “BDC”), Fifth Street Senior Floating Rate Corp. (the “BDC II”), Fifth Street\nSenior Loan Fund I Operating Entity, LLC, Fifth Street Senior Loan Fund II Operating Entity, LLC, Fifth Street Credit\nOpportunities Fund, L.P ., Fifth Street Mezzanine Partners II, L.P ., Fifth Street Capital LLC, Fifth Street Capital West, Inc.,\nFSC, Inc., FSC Midwest, Inc. and any entities formed after the date hereof which engage the Company to provide\nservices, and any affiliates of Fifth Street formed after the date hereof.\n1.\nConsideration. Employee acknowledges that he has been advised by Fifth Street that the restrictions\nand covenants contained in this Agreement, and Employee's agreement to such terms, are of the essence to this\nAgreement and constitute a material inducement to Fifth Street (i) to enter into this Agreement (including, without\nlimitation, agreeing to the terms of Section 2) for the benefit of the Company, and (ii) to employ Employee [FOR\nMESSRS. BERMAN, DIMITROV AND FRANK: on the terms set forth in the Letter Agreement between the Employee\nand Fifth Street, dated as of [____], 2014 (the “Letter Agreement”)]. Employee acknowledges that the Company will not\nemploy Employee without Employee’s agreement to comply with the restrictions and covenants contained in this\nAgreement and without Employee’s execution of this Agreement. Employee acknowledges and agrees that the\nCompany’s providing employment to Employee is full and complete consideration for the promises and agreements\nmade by Employee herein.\n2.\nNon-Compete.\n(a)\nNon-Competition Period. As used in this Agreement, the term “Non-Competition Period” shall mean the\nperiod of Employee's employment with the Company and the one-year period commencing on the date that Employee’s\nemployment with the Company terminates, regardless of the reason for such termination and regardless of whether the\ntermination was voluntary or involuntary (or the three (3) month period commencing on the date that (i) Employee’s\nemployment with the Company is terminated by the Company other than for “Cause” (as defined in Exhibit A) within\nninety (90) days prior to a “Change in Control” (as defined in Section (4) below), or (ii) Employee’s employment is\nterminated at any time on or after a “Change in Control” (as defined in Section (4) below)); provided that in the event of a\ntermination of Employee’s employment for any reason other than for Cause (as defined on Exhibit A), the Company shall,\nsubject to the following conditions, pay Employee during the Non-Competition Period the sum of (i) his base salary (or a\npro rata portion, if the Non-Competition Period is less than one year in duration), pursuant to the Company’s customary\npayroll policies, plus (ii) [FOR MR. OWENS ONLY: a bonus (or a pro rata portion, if the Non-Competition Period is less\nthan one year in duration) equal to the average of the discretionary bonuses received by Employee over the preceding\ntwo years (but no less than $1.5 million with respect to any termination in 2014 or 2015]/[FOR MESSRS. BERMAN,\nDIMITROV AND FRANK: a bonus (or a pro rata portion, if the Non-Competition Period is less than one year in duration)\nequal to the average of the discretionary bonuses received by Employee over the preceding two years]; [FOR MESSRS.\nBERMAN, DIMITROV AND FRANK: provided, further, that solely in the event of a termination of Employee’s\nemployment by the Company without Cause or by the Employee for Good Reason, Employee shall be entitled to\naccelerated vesting of Options and RSUs as provided for in Annex A to the Letter Agreement]; provided that (I) the\ncommencement of the foregoing payments are conditioned on the effectiveness (i.e., the expiration of any applicable\nrevocation period without a revocation by Employee) of a release and waiver of all claims (the “Release”) by Employee,\nin the form attached as exhibit B to the Letter Agreement [FOR MR. OWEN ONLY: in the form attached as Exhibit B to\nthe Offer Letter from Fifth Street to Employee dated as of [_____], 2014 (the “Amended Offer Letter”)], within 30 days\nfrom the date of termination; (II) the foregoing payments are conditioned on Employee’s full compliance in all respects\nwith the post-termination obligations set forth in this Agreement, (III) the post-termination obligations of Employee under\nthis Agreement shall remain in full force and effect, and Employee shall remain bound in full by such obligations,\nregardless of whether Employee elects to accept payment of such amounts, (IV) if the Company, in its sole discretion,\nwaives compliance with Section 2(a) of the Agreement in writing, the payments provided for in sub-clauses (a)(i) and (ii)\nshall no longer be paid from and after the effective date of such waiver (it being understood that no such waiver shall\naffect the Company’s payment obligations under [the Letter Agreement]/[FOR MR. OWENS ONLY: the Amended Offer\nLetter] and in the event of such a waiver, the other covenants contained in this Agreement shall not be affected and will\ncontinue in full force and effect in accordance with the terms of this Agreement), [and] (V) if the termination occurs within\n90 days prior to, or at any time on or after a “Change in Control” (as defined in Section (4) below) the payment shall equal\nthree (3) months of base salary and a pro rata portion of the applicable bonus equal to three (3) months [and FOR MR.\nOWENS ONLY: (VI) any payment obligations under this Agreement shall be reduced by all post-termination separation\npayments paid to the Employee under the Letter Agreement]. Employee covenants, during the one year period following\nthe termination of his employment, to provide to the Company, as promptly as reasonably practicable prior to\ncommencing employment, with advance written notice of the name of his new employer. For purposes of this Agreement,\n“base salary” shall mean an amount equal to the highest base salary ever paid to Employee during his employment by\nthe Company.\n2\n(b)\nNon-Competition. In order to protect the Company’s Confidential or Protected Information, Employee\nagrees that, during the Non-Competition Period, Employee shall not, directly or indirectly, own, manage, operate, control\nor participate in the ownership, management, operation or control of, or be connected as an officer, employee, director,\nconsultant, advisor, agent, independent contractor, partner, member, stockholder, trustee, or otherwise with, or have any\nfinancial interests in, or aid or assist anyone else in the conduct of, or in any other capacity be engaged directly or\nindirectly in, any entity or business (i) that is in competition with the Company's business of arranging and/or providing\nfinancing solutions to sponsor-led, middle market acquisitions or (ii) that is in competition with any other type of business\nin which the Company is also engaged, or plans to be engaged (each, a “Competitive Business”). The ownership of less\nthan two percent (2%) of any class of the outstanding securities of any corporation whose shares are traded on a U.S .\nnational securities exchange or quoted on The Nasdaq Stock Market, even though such corporation may be a\nCompetitive Business, shall not be deemed to constitute an interest in such competitor which violates this paragraph.\nFollowing the termination of Employee’s employment, the foregoing shall not prevent Employee from providing services\nto any enterprise engaged in a Competitive Business to the extent that such services, or any supervisory responsibility of\nEmployee associated with such position, are related only to the products or lines of business of such entity which,\nstanding alone, would not constitute a Competitive Business, so long as the portion of the enterprise that is a Competitive\nBusiness does not represent more than fifty percent (50%) of the revenues of such enterprise at any time.\n(c)\nTiming of Payments. The payments described in Section 2(a) above shall be paid, minus applicable\ndeductions, including deductions for tax withholding, in equal payments on the regular payroll dates during the\nNon-Competition Period following Employee’s termination of employment. Commencement of payments described in\nSection 2(a) shall begin on the payroll date within 30 days of the effective date of the Release. The first payment shall\ninclude those payments that would have previously been paid if the payments described in Section 2(a) had begun on\nthe first payroll date following Employee’s termination of employment. This timing of the commencement of payments is\nsubject to Section 22 below and Annex D to the Letter Agreement.\n(d)\nFor purposes of this Agreement, “termination of employment” shall mean a “separation of service” as\ndefined in Section 409A of the Internal Revenue Code of 1986, as amended, (the “Code”) and Treasury Regulations\nSection 1.409A-1(h) without regard to the optional alternative definitions available thereunder.\n(e)\nThe payments described in Section 2(a) shall be treated as a series of separate payments for purposes\nof Section 409A of the Code.\n(f)\nAny amounts payable to Employee by the Company under this Agreement or under any other plan or\narrangement of the Company which are subject to Section 409A and are conditioned upon execution of a waiver and\nrelease that may be executed and/or revoked in a calendar year following the calendar year in which the payment event\n(such as termination of employment) occurs shall commence payment only in such following calendar year, to the extent\nnecessary to comply with Section 409A.\n3\n3.\nNon-Solicitation Covenants.\n(a)\nRestricted Period.\ni.\nAs used in this Agreement, the term “Investor Restricted Period” shall mean (x) the term of Employee's\nemployment with the Company, and (y) (I) the one-year period commencing on the date that\nEmployee's employment with the Company terminates, regardless of the reason for such termination\nand regardless of whether the termination was voluntary or involuntary, or, if applicable, (II) the six (6)\nmonth period commencing on the date that Employee’s employment with the Company terminates,\nprovided that (i) such termination was by the Company other than for “Cause” (as defined in Exhibit A)\nand was within ninety (90) days prior to a “Change in Control” (as defined in Section (4) below) or (ii)\nsuch termination was on or after a “Change in Control” (as defined in Section (4) below).\nii.\nAs used in this Agreement, the term “Customer Restricted Period” shall mean (x) the term of\nEmployee's employment with the Company, and (y) (I) the one-year period commencing on the date\nthat Employee's employment with the Company terminates, regardless of the reason for such\ntermination and regardless of whether the termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee’s employment with the Company\nterminates, provided that (i) such termination was by the Company other than for “Cause” (as defined\nin Exhibit A) and was within ninety (90) days prior to a “Change in Control” (as defined in Section (4)\nbelow) or (ii) such termination was on or after a “Change in Control” (as defined in Section (4) below).\niii.\nAs used in this Agreement, the term “Employee Restricted Period” shall mean (x) the term of\nEmployee's employment with the Company, and (y) (I) the two-year period commencing on the date\nthat Employee's employment with the Company terminates, regardless of the reason for such\ntermination and regardless of whether the termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee’s employment with the Company\nterminates, provided that (i) such termination was by the Company other than for “Cause” (as defined\nin Exhibit A) and was within ninety (90) days prior to a “Change in Control” (as defined in Section (4)\nbelow) or (ii) such termination was on or after a “Change in Control” (as defined in Section (4) below).\n(b)\nNon-Solicitation of Investors. Employee agrees that, during the Investor Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit or accept any\ninvestment from any person or entity that was an Investor, at any time prior to the termination of Employee's employment\nwith the Company; (ii) induce or influence any such Investor to discontinue, modify, or reduce its business relationship\nwith the Company; or (iii) assist or cause any person or entity to engage in any of the actions in which Employee has\nagreed not to engage under this paragraph. The term “Investor” means investors (and their affiliates) that did business\nwith the Company, or any account, fund or other entity for which the Advisor or any affiliate of the Advisor provided\ninvestment advisory or management services at any time during Employee's employment and all potential investors\nwhich, as of the last day of Employee's employment, the Company was soliciting or marketing (including, without\nlimitation, any potential investor (or affiliate thereof) to which the Company delivered a PPM or similar offering\nmemorandum within the 2 years preceding the termination of Employee's employment). Notwithstanding the foregoing,\nno person shall be deemed to be an Investor solely based on the fact that such person is or was a stockholder of the\nBDC or BDC II.\n4\n(c)\nNon-Solicitation of Customers. Employee agrees that, during the Customer Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit business (unless\nsuch business is noncompetitive to the Company's business) from any customer or client of the Company (a “Covered\nCustomer”); (ii) induce or influence any Covered Customer to discontinue, modify, or reduce its business relationship with\nthe Company; (iii) solicit, induce or influence any entity to not accept a written term sheet or commitment letter that was\nissued in the six months prior to Employee's termination from the Company or discontinue a loan arrangement with the\nCompany that that was in existence at the time of Employee's termination; or (iv) assist or cause any person or entity to\nengage in any of the actions in which Employee has agreed not to engage under this paragraph.\n(d)\nNon-Solicitation of Employees. Employee agrees that, during the Employee Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) induce, encourage, or\nsolicit any individual who is employed by the Company as of the date of Employee's termination of employment, or within\none year prior thereto, to leave such employment or to become employed by or provide services to any person or entity\nother than the Company, or (ii) assist or cause any person or entity to engage in any of the actions in which Employee\nhas agreed not to engage under this paragraph.\n4.\nDefinition of “Change in Control”. As used in this Agreement, the term “Change in Control” shall mean\nthat Leonard Tannenbaum and his affiliated entities collectively cease to have beneficial voting control of FSAM (or, if an\nIPO has not occurred, of Fifth Street Holdings, LP).\n5.\nConfidential or Protected Information. As used in this Agreement, “Confidential or Protected\nInformation” means:\n(a)\nconfidential, proprietary or trade secret information (including, without limitation, all information as to\nwhich the Company has made efforts to maintain secrecy or that the law protects from disclosure) made available to\nEmployee, or to which Employee has access, or of which Employee becomes aware during his employment, including,\nwithout limitation, information related to investments made by the Company, information related to the Company's or any\nother entity's businesses, systems, operations, finances, investments, transactions, negotiations, claims, potential claims,\nsales, marketing, plans, pricing, customers, prospective customers, policies, practices, procedures, products, services,\nfinances, accounting practices or procedures, financial or investment performance (including, without limitation, any\n“track record” data or information), return on investment or capital, internal rate of return (“IRR”), relationships with third\nparties, ownership, investors, partners, employees, and management, as well as the Company's or any other entity's\nsoftware (in any stage of development), programs (whether or not in final form), ideas, inventions, concepts, formulas,\nmethods, development, research, designs, drawings, schematics, specifications, techniques, models, data, source code,\nobject code, flow diagrams, and documentation; and\n5\n(b)\nall information concerning any Inventions or Copyright Works. The term “Invention” means any new or\nuseful art, discovery, contribution, finding, or improvement, whether or not patentable. The term “Copyright Works”\nmeans materials for which copyright protection may be obtained, including, but not limited to, computer programs, artistic\nworks (including designs, graphs, drawings, blueprints and other works), literary works, recordings, photographs, slides,\nmotion pictures, and audiovisual works.\nThe forgoing description of “Confidential or Protected Information” includes all such information in any and all\nforms, whether written, oral, on a computer, tape, chip, or disk, whether prepared by Employee, by the Company, or by\nothers, whether or not fixed in tangible form, and includes all originals, summaries, portions, and copies of any and all\nsuch information.\n6.\nNondisclosure of Confidential or Protected Information. Except as provided below in Paragraph 7,\nEmployee agrees that during Employee's employment with the Company and after Employee's employment with the\nCompany terminates, regardless of why such employment terminated and regardless of whether the termination was\nvoluntary or involuntary, Employee will not disclose to anyone, publish, sell, assign, license, or attempt to do so, and will\nnot use for Employee's own personal benefit or the benefit of anyone other than the Company, whether directly or\nindirectly, any Confidential or Protected Information. Employee also agrees to:\n(a)\nmaintain in a confidential and protected manner all Confidential or Protected Information;\n(b)\ntake all reasonable steps to ensure that persons and entities working for and with Employee maintain in\na confidential and protected manner all Confidential or Protected Information;\n(c)\ntake all reasonable steps to prevent unauthorized persons and entities from obtaining, disseminating, or\nusing Confidential or Protected Information; and\n(d)\npromptly report to the Chief Executive Officer of Fifth Street whenever Employee learns it is likely that\nany unauthorized person or entity seeks or plans to obtain, disseminate, or use any Confidential or Protected Information.\n6\n7.\nExceptions. The restrictions relating to Confidential or Protected Information set forth in Paragraph 6\nabove do not apply:\n(a)\nwhere such disclosure or use is necessary for Employee to faithfully perform his duties as an employee\nfor the Company or for other employees to faithfully perform their duties for the Company;\n(b)\nto information which is now or hereafter becomes known or generally available to the public at large,\nexcept if such knowledge results from a breach of this Agreement or another obligation of confidentiality owed to the\nCompany;\n(c)\nwhere Employee has the prior written permission of the Chief Executive Officer of Fifth Street;\n(d)\nwhere necessary to comply with any legal obligation applicable to Employee; provided, however, that\nbefore disclosing or permitting disclosure of any Confidential or Protected Information pursuant to a legal obligation,\nEmployee agrees to (i) promptly notify the Chief Executive Officer of Fifth Street of the legal obligation that Employee\nbelieves requires that he make or permit such disclosure, and (ii) delay, if and to the extent lawful to do so, making such\ndisclosure to afford the Company a reasonable opportunity to oppose disclosure, or restrict, limit or condition such\ndisclosure.\n8.\nIntellectual Property.\n(a) Ownership of Confidential or Protected Information, Inventions, and Copyright Works. Upon conception,\nall Confidential or Protected Information, Inventions, and Copyright Works shall become the exclusive property of Fifth\nStreet whether or not patent or copyright applications are filed on the subject matter of the conception.\n(b) Rights in Copyrights. Unless otherwise agreed in writing by the Chief Executive Officer of Fifth Street,\noriginal works of authorship fixed in any tangible form that are or were prepared by Employee (alone or jointly with\nothers) within the scope of Employee's employment with Fifth Street shall be deemed “works made for hire” under\ncopyright laws and shall be owned by Fifth Street. Employee understands that any sale, assignment, license, or release\nof such works can only be made by Fifth Street. Employee will do everything reasonably necessary to enable Fifth Street\nor its nominee to protect its rights in such works, including, without limitation, assigning the copyright and all rights,\nthroughout the world, in and to the work product to Fifth Street and hereby assigns to Fifth Street all such copyright and\nrights as of the date hereof.\n9.\nCompany's Property. Upon termination of Employee's employment with the Company, regardless of\nthe reason (whether voluntary or involuntary), Employee agrees immediately to surrender to Fifth Street all property of\nthe Company in Employee's possession, control, or custody, including, but not limited to, the equipment, computers,\nsoftware, credit cards, books, records, reports, files, manuals, literature, the work product of Employee and all other\nCompany employees and all property containing Confidential or Protected Information (including all originals, summaries,\nportions, and copies).\n7\n10.\nNondisparagement. Employee agrees that, during and at any time after Employee’s employment with\nthe Company, regardless of the reason (whether voluntary or involuntary), Employee will not, directly or indirectly,\nthrough any agent or affiliate, make any comments or criticisms (whether of a professional or personal nature) to any\nindividual or other third party or entity regarding the Company (or the terms of any agreement or arrangement of the\nCompany) or any of its respective affiliates, members, partners or employees, disparaging the business or reputation of\nthe Company or any of its affiliates, members, partners or employees.\n11.\nRemedies. Employee acknowledges and agrees that monetary damages may not be a sufficient\nremedy for any breach of this Agreement, including, without limitation, a breach of the covenants contained in\nParagraphs 2 and 3 or the unauthorized use or disclosure of Confidential or Protected Information, and that the Company\nshall be entitled, without waiving any other rights or remedies, to obtain injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction, without obligation to post any bond. The periods of time during which\nEmployee is in violation of the covenants set forth in this Agreement shall be added to the Investor Restricted Period, the\nCustomer Restricted Period, the Employee Restricted Period and the Non-Competition Period, as applicable.\n12.\nReasonableness. Employee acknowledges and agrees that the restrictions contained in this\nAgreement are reasonable and will not prevent him from finding other employment if his employment with the Company\nends. Employee also acknowledges and agrees that if Employee uses the Company's confidential information, or\ncompetes with the Company in violation of the terms of this Agreement, that he will be causing the Company irreparable\nharm.\n13.\nSeverability; Revision by Court. The provisions of this Agreement shall be deemed severable and the\ninvalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If\nany provision in this Agreement is found by a court of competent jurisdiction to be unenforceable or unreasonable as\nwritten, Employee and Fifth Street hereby specifically and irrevocably authorize and request said court to revise the\nunenforceable or unreasonable provisions in a manner that shall result in the provision being enforceable while remaining\nas similar as legally possible to the purpose and intent of the original.\n14.\nEntire Agreement. This Agreement constitutes the entire agreement and understanding of the parties\nhereto with respect to the obligations addressed herein and supersedes all prior or contemporaneous oral or written\nagreements regarding the subject matter hereof.\n15.\nAmendments; Waivers. Any addition or modification to this Agreement, or waiver of any provision\nhereof, must be in writing and signed by the parties hereto.\n8\n16.\nSuccessors and Assigns. Employee understands and agrees that he cannot assign or otherwise\ntransfer any of his obligations under this Agreement. Employee understands and agrees that Fifth Street may, at its\noption, assign or transfer its rights under this Agreement to another organization or individual. Employee understands\nand agrees that if there is an assignment or transfer of Fifth Street's rights under this Agreement, then this Agreement will\ncontinue to be effective, will continue to bind Employee, and will inure to the benefit of the organization or individual to\nwhom the transfer or assignment is made.\n17.\nChoice of Law. This Agreement shall be governed by, construed, and enforced in accordance with the\nlaws of the State of Connecticut, excluding its conflicts of laws principles.\n18.\nJurisdiction. Any action or proceeding seeking to enforce any provision of, or based on any right\narising out of, this Agreement may be brought against either party only in the courts of the State of Connecticut located in\nFairfield County. Both parties hereby irrevocably consent to the jurisdiction of any such court in any such action or\nproceeding and waive any objection to venue laid in such courts.\n19.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed an original but all of which together shall constitute one and the same instrument. This Agreement may be\nexecuted by facsimile signature.\n20.\nEmployee's Acknowledgment of Voluntary Agreement. Employee acknowledges that he has\ncarefully read this Agreement, that he has had the opportunity to receive advice with respect to this Agreement by\ncounsel of his choice, that he understands its terms and its legal effect, and that Employee has entered into this\nAgreement voluntarily and not in reliance upon any promises or representations made by the Company other than those\nmade in this Agreement itself.\n21.\nNo Change in Status. Nothing contained in the Agreement shall affect or in any way change\nEmployee's at-will employment status.\n22.\nSection 409A.\n(a)\nPotential Six-Month Delay. Notwithstanding any other provisions of the Agreement, any payment that\nmay be provided under this Agreement that the Company reasonably determines is subject to Section 409A(a)(2)(B)(i) of\nthe Code shall not be paid or payment commenced until six (6) months after the date of Employee’s termination of\nemployment (or, if earlier, Employee’s death). On the earliest date on which such payments can be commenced without\nviolating the requirements of Section 409A(a)(2)(B)(i) of the Code, Employee shall be paid, in a single cash lump sum, an\namount equal to the aggregate amount of all payments delayed pursuant to the preceding sentence.\n9\n(b)\nSavings Clause. It is intended that any amounts payable under this Agreement shall either be exempt\nfrom or comply with Section 409A of the Code (including Treasury regulations and other published guidance related\nthereto) so as not to subject Employee to payment of any additional tax, penalty or interest imposed under Section 409A\nof the Code. The provisions of this Agreement shall be construed and interpreted to avoid the imputation of any such\nadditional tax, penalty or interest under Section 409A of the Code yet preserve (to the nearest extent reasonably\npossible) the intended benefit payable to Employee. Notwithstanding the foregoing, the Company makes no\nrepresentation or warranty and shall have no liability to Employee or to any other person if any of the provisions of this\nAgreement are determined to constitute deferred compensation subject to Section 409A, but that do not satisfy an\nexemption from, or the conditions of, that section.\n[Signature page follows]\n10\nBy signing below, the Company and Employee, intending to be legally bound, agree to the terms of this\nAgreement as listed and stated above.\nFSC CT, Inc.\nDated:\nBy:\nName:\nTitle:\nEmployee:\nDated:\n11\nEXHIBIT A\nAs used in this Agreement, “Cause” shall have the meaning ascribed to it in [the Letter Agreement]/[FOR MR.\nOWENS ONLY: the Amended Offer Letter].	Exhibit 10.17\nFORM OF NON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\n[For Bernard D. Berman, lvelin M. Dimitrov, Alexander C. Frank and Todd G. Owens]\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (“Agreement”) is entered into between\n[NAME] (“Employee”) and FSC CT, Inc. (“Fifth Street”), a Connecticut corporation, as of the [__] day of [MONTH], 2014.\nIn this Agreement, Employee and Fifth Street are collectively referred to as the “parties”. The term “Company” as used in\nthis Agreement includes Fifth Street and all direct and indirect subsidiaries and affiliates of Fifth Street, including, without\nlimitation, Fifth Street Management LLC (the “Advisor”), Fifth StreetAsset Management Inc. (“FSAM”), Fifth Street\nHoldings, L.P., Fifth Street Finance Corp. (the w”), Fifth StreetSenior Floating Rate Corp. (the “BD_CII’), Fifth Street\nSenior Loan Fund I Operating Entity, LLC, Fifth Street Senior Loan Fund II Operating Entity, LLC, Fifth StreetCredit\nOpportunities Fund, L.P., Fifth Street Mezzanine Partners II, L.P., Fifth StreetCapitaI LLC, Fifth StreetCapitaI West, Inc.,\nFSC, Inc., FSC Midwest, Inc. and any entities formed after the date hereof which engage the Company to provide\nservices, and any affiliates of Fifth Streetformed after the date hereof.\n \n1. Consideration. Employee acknowledges that he has been advised by Fifth Street thatthe restrictions\nand covenants contained in this Agreement, and Employee's agreement to such terms, are ofthe essence to this\nAgreement and constitute a material inducement to Fifth Street (i) to enter into this Agreement (including, without\nlimitation, agreeing to the terms of Section 2) forthe benefit of the Company, and (ii) to employ Employee [FOR\nMESSRS. BERMAN, DIMITROV AND FRANK: on the terms set forth in the Letter Agreement between the Employee\nand Fifth Street, dated as of [____], 2014 (the “LetterAgreemen ”)1. Employee acknowledges that the Company will not\nemploy Employee without Employee's agreement to comply with the restrictions and covenants contained in this\nAgreement and without Employee's execution of this Agreement. Employee acknowledges and agrees thatthe\nCompany's providing employment to Employee is full and complete consideration forthe promises and agreements\nmade by Employee herein.\n2. Non-Compete.\nu\n(a) Non-Competition Period. As used in this Agreement, the term Non-Competition Period” shall mean the\nperiod of Employee's employment with the Company and the one-year period commencing on the date that Employee's\nemployment with the Company terminates, regardless of the reason for such termination and regardless of whether the\ntermination was voluntary or involuntary (or the three (3) month period commencing on the date that (i) Employee's\nemployment with the Company is terminated by the Company other than for “Cause” (as defined in Exhibit A) within\nninety (90) days prior to a “Change in Control” (as defined in Section (4) below), or (ii) Employee's employment is\nterminated at any time on or after a “C hange in Control” (as defined in Section (4) below)); provided that in the event of a\ntermination of Employee's employment for any reason other than for Cause (as defined on ExhibitA), the Company shall,\nsubject to the following conditions, pay Employee during the Non-Competition Period the sum of (i) his base salary (or a\npro rata portion, if the Non-Competition Period is less than one year in duration), pursuant to the Company's customary\npayroll policies, plus (ii) [FOR MR. OWENS ONLY: a bonus (or a pro rata portion, if the Non-Competition Period is less\nthan one year in duration) equal to the average of the discretionary bonuses received by Employee over the preceding\ntwo years (but no less than $1.5 million with respect to any termination in 2014 or 2015]/[FOR MESSRS. BERMAN,\nDIMITROV AND FRANK: a bonus (or a pro rata portion, if the Non-Competition Period is less than one year in duration)\nequal to the average ofthe discretionary bonuses received by Employee overthe preceding two years]; [FOR MESSRS.\nBERMAN, DIMITROV AND FRANK: provided, further, that solely in the event of a termination of Employee's\nemployment by the Company without Cause or by the Employee for Good Reason, Employee shall be entitled to\naccelerated vesting of Options and RSUs as provided for in Annex A to the Letter Agreement]; provided that (l) the\ncommencement of the foregoing payments are conditioned on the effectiveness (i.e., the expiration of any applicable\nrevocation period without a revocation by Employee) of a release and waiver of all claims (the “Release”) by Employee,\nin the form attached as exhibit B to the Letter Agreement [FOR MR. OWEN ONLY: in the form attached as Exhibit B to\nthe Offer Letter from Fifth Street to Employee dated as of[ _____ ], 2014 (the “Amended Offer Letter”)], within 30 days\nfrom the date of termination; (II) the foregoing payments are conditioned on Employee's full compliance in all respects\nwith the post-termination obligations set forth in this Agreement, (III) the post-termination obligations of Employee under\nthis Agreement shall remain in full force and effect, and Employee shall remain bound in full by such obligations,\nregardless of whether Employee elects to accept payment of such amounts, (IV) if the Company, in its sole discretion,\nwaives compliance with Section 2(a) of the Agreement in writing, the payments provided for in sub-clauses (a)(i) and (ii)\nshall no longer be paid from and after the effective date of such waiver (it being understood that no such waiver shall\naffect the Company's payment obligations under [the Letter Agreement]/[FOR MR. OWENS ONLY: the Amended Offer\nLetter] and in the event of such a waiver, the other covenants contained in this Agreement shall not be affected and will\ncontinue in full force and effect in accordance with the terms of this Agreement), [and] (V) if the termination occurs within\n90 days priorto, or atany time on or aftera “C hange in Control” (as defined in Section (4) below) the paymentshall equal\nthree (3) months of base salary and a pro rata portion of the applicable bonus equal to three (3) months [and FOR MR.\nOWENS ONLY: (VI) any payment obligations under this Agreement shall be reduced by all post-termination separation\npayments paid to the Employee under the Letter Agreement]. Employee covenants, during the one year period following\nthe termination of his employment, to provide to the Company, as promptly as reasonably practicable prior to\ncommencing employment, with advance written notice of the name of his new employer. For purposes of this Agreement,\n“base salary” shall mean an amount equal to the highest base salary ever paid to Employee during his employment by\nthe Company.\n \n(b) Non-Competition. In orderto protect the Company's Confidential or Protected Information, Employee\nagrees that, during the Non-Competition Period, Employee shall not, directly or indirectly, own, manage, operate, control\nor participate in the ownership, management, operation or control of, or be connected as an officer, employee, director,\nconsultant, advisor, agent, independent contractor, partner, member, stockholder, trustee, or otherwise with, or have any\nfinancial interests in, or aid or assist anyone else in the conduct of, or in any other capacity be engaged directly or\nindirectly in, any entity or business (i) that is in competition with the Company's business of arranging and/or providing\nfinancing solutions to sponsor-led, middle market acquisitions or (ii) that is in competition with any other type of business\nin which the Company is also engaged, or plans to be engaged (each, a “Competitive Business”). The ownership of less\nthan two percent (2%) ofany class of the outstanding securities ofany corporation whose shares are traded on a US.\nnational securities exchange or quoted on The Nasdaq Stock Market, even though such corporation may be a\nCompetitive Business, shall not be deemed to constitute an interest in such competitor which violates this paragraph.\nFollowing the termination of Employee's employment, the foregoing shall not prevent Employee from providing services\nto any enterprise engaged in a Competitive Business to the extent that such services, or any supervisory responsibility of\nEmployee associated with such position, are related only to the products or lines of business of such entity which,\nstanding alone, would notconstitute a Competitive Business, so long as the portion of the enterprise that is a Competitive\nBusiness does not represent more than fifty percent (50%) of the revenues of such enterprise at any time.\n(c) Timing of Payments. The payments described in Section 2(a) above shall be paid, minus applicable\ndeductions, including deductions for tax withholding, in equal payments on the regular payroll dates during the\nNon-Competition Period following Employee's termination of employment. Commencement of payments described in\nSection 2(a) shall begin on the payroll date within 30 days of the effective date of the Release. The first payment shall\ninclude those payments thatwould have previously been paid if the payments described in Section 2(a) had begun on\nthe first payroll date following Employee's termination of employment. This timing of the commencement of payments is\nsubjectto Section 22 below and Annex D to the Letter Agreement.\n(d) For purposes of this Agreement, “termination of employment” shall mean a “separation of service” as\ndefined in Section 409A ofthe Internal Revenue Code of 1986, as amended, (the “Code”) and Treasury Regulations\nSection 1.409A-1(h) without regard to the optional alternative definitions available thereunder.\n(e) The payments described in Section 2(a) shall be treated as a series ofseparate payments for purposes\nof Section 409A of the Code.\n(f) Any amounts payable to Employee by the Company underthis Agreement or under any other plan or\narrangement of the Company which are subjectto Section 409A and are conditioned upon execution of a waiver and\nrelease that may be executed and/or revoked in a calendar yearfollowing the calendar year in which the payment event\n(such as termination of employment) occurs shall commence payment only in such following calendar year, to the extent\nnecessary to comply with Section 409A.\n3. Non-Solicitation Covenants.\n(a) Restricted Period.\nAs used in this Agreement, the term “Investor Restricted Period” shall mean (x) the term of Employee's\nemployment with the Company, and (y) (I) the one-year period commencing on the date that\nEmployee's employment with the Company terminates, regardless of the reason for such termination\nand regardless of whetherthe termination was voluntary or involuntary, or, if applicable, (II) the six (6)\nmonth period commencing on the date that Employee's employment with the Company terminates,\nprovided that (i) such termination was by the Company other than for “Cause” (as defined in ExhibitA)\nand was within ninety (90) days prior to a “C hange in Control” (as defined in Section (4) below) or (ii)\nsuch termination was on or after a “C hange in Control” (as defined in Section (4) below).\nAs used in this Agreement, the term “Customer Restricted Period” shall mean (X) the term of\nEmployee's employment with the Company, and (y) (I) the one-year period commencing on the date\nthat Employee's employmentwith the Company terminates, regardless of the reason for such\ntermination and regardless of whetherthe termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee's employment with the Company\nterminates, provided that (i) such termination was by the Company otherthan for “Cause” (as defined\nin ExhibitA) and was within ninety (90) days prior to a “C hange in Control” (as defined in Section (4)\nbelow) or (ii) such termination was on or after a “C hange in Control” (as defined in Section (4) below).\nAs used in this Agreement, the term “E mployee Restricted Period” shall mean (X) the term of\nEmployee's employment with the Company, and (y) (I) the two-year period commencing on the date\nthat Employee's employmentwith the Company terminates, regardless of the reason for such\ntermination and regardless of whetherthe termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee's employment with the Company\nterminates, provided that (i) such termination was by the Company otherthan for “Cause” (as defined\nin ExhibitA) and was within ninety (90) days prior to a “C hange in Control” (as defined in Section (4)\nbelow) or (ii) such termination was on or after a “C hange in Control” (as defined in Section (4) below).\n(b) Non-Solicitation of Investors. Employee agrees that, during the Investor Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit or accept any\ninvestment from any person or entity that was an Investor, at any time prior to the termination of E mployee's employment\nwith the Company; (ii) induce or influence any such Investorto discontinue, modify, or reduce its business relationship\nwith the Company; or (iii) assist or cause any person or entity to engage in any of the actions in which Employee has\nagreed not to engage under this paragraph. The term “Investor” means investors (and their affiliates) that did business\nwith the Company, or any account, fund or other entity for which the Advisor or any affiliate of the Advisor provided\ninvestment advisory or management services at any time during E mployee's employment and all potential investors\nwhich, as of the last day of Employee's employment, the Company was soliciting or marketing (including, without\nlimitation, any potential investor (or affiliate thereof) to which the Company delivered a PPM or similar offering\nmemorandum within the 2 years preceding the termination of Employee's employment). Notwithstanding the foregoing,\nno person shall be deemed to be an Investor solely based on the factthatsuch person is or was a stockholder of the\nBDC or BDC II.\n(c) Non-Solicitation of Customers. Employee agrees that, during the Customer Restricted Period, Employee\nshall not, directly or indirectly, for himself orfor any person or entity otherthan the Company: (i) solicit business (unless\nsuch business is noncompetitive to the Company's business) from any customer or client of the Company (a “C overed\nCustomer”); (ii) induce or influence any Covered Customerto discontinue, modify, or reduce its business relationship with\nthe Company; (iii) solicit, induce or influence any entity to not accept a written term sheet or commitment letterthat was\nissued in the six months prior to Employee's termination from the Company or discontinue a loan arrangement with the\nCompany thatthat was in existence atthe time of Employee's termination; or (iv) assist or cause any person or entity to\nengage in any of the actions in which Employee has agreed not to engage underthis paragraph.\n(d) Non-Solicitation of Employees. Employee agrees that, during the Employee Restricted Period, Employee\nshall not, directly or indirectly, for himself orfor any person or entity otherthan the Company: (i) induce, encourage, or\nsolicit any individual who is employed by the Company as of the date of Employee's termination of employment, or within\none year priorthereto, to leave such employment orto become employed by or provide services to any person or entity\notherthan the Company, or (ii) assist or cause any person or entity to engage in any of the actions in which Employee\nhas agreed not to engage underthis paragraph.\n4. Definition of “C hange in Control". As used in this Agreement, the term “C hange in Contro ” shall mean\nthat Leonard Tannenbaum and his affiliated entities collectively cease to have beneficial voting control of FSAM (or, ifan\nIPO has notoccurred, ofFifth StreetHoldings, LP).\n5. Confidential or Protected Information. As used in this Agreement, “Confidential or Protected\nInformation” means:\n(a) confidential, proprietary ortrade secret information (including, without limitation, all information as to\nwhich the Company has made efforts to maintain secrecy orthatthe law protects from disclosure) made available to\nEmployee, orto which Employee has access, or of which Employee becomes aware during his employment, including,\nwithout limitation, information related to investments made by the Company, information related to the Company's or any\nother entity's businesses, systems, operations, finances, investments, transactions, negotiations, claims, potential claims,\nsales, marketing, plans, pricing, customers, prospective customers, policies, practices, procedures, products, services,\nfinances, accounting practices or procedures, financial or investment performance (including, without limitation, any\n“track record” data or information), return on investment or capital, internal rate of return (“fl”), relationships with third\nparties, ownership, investors, partners, employees, and management, as well as the Company's or any other entity's\nsoftware (in any stage of development), programs (whether or not in final form), ideas, inventions, concepts, formulas,\nmethods, development, research, designs, drawings, schematics, specifications, techniques, models, data, source code,\nobject code, flow diagrams, and documentation; and\n(b) all information concerning any Inventions or Copyright Works. The term “Invention” means any new or\nuseful art, discovery, contribution, finding, or improvement, whether or not patentable. The term "CopyrightWorks”\nmeans materials for which copyright protection may be obtained, including, but not limited to, computer programs, artistic\nworks (including designs, graphs, drawings, blueprints and other works), literary works, recordings, photographs, slides,\nmotion pictures, and audiovisual works.\nThe forgoing description of “Confidential or Protected Information” includes all such information in any and all\nforms, whether written, oral, on a computer, tape, chip, or disk, whether prepared by Employee, by the Company, or by\nothers, whether or not fixed in tangible form, and includes all originals, summaries, portions, and copies ofany and all\nsuch information.\n6. Nondisclosure ofConfidential or Protected Information. Except as provided below in Paragraph 7,\nE mployee agrees that during E mployee's employment with the Company and after E mployee's employment with the\nCompany terminates, regardless of why such employment terminated and regardless of whetherthe termination was\nvoluntary or involuntary, Employee will not disclose to anyone, publish, sell, assign, license, or attempt to do so, and will\nnot use for Employee's own personal benefit or the benefit of anyone other than the Company, whether directly or\nindirectly, any Confidential or Protected Information. Employee also agrees to:\n(a) maintain in a confidential and protected manner all Confidential or Protected Information;\n(b) take all reasonable steps to ensure that persons and entities working for and with Employee maintain in\na confidential and protected manner all Confidential or Protected Information;\n(c) take all reasonable steps to prevent unauthorized persons and entities from obtaining, disseminating, or\nusing Confidential or Protected Information; and\n(d) promptly report to the Chief Executive Officer of Fifth Street whenever Employee learns it is likely that\nany unauthorized person or entity seeks or plans to obtain, disseminate, or use any Confidential or Protected Information.\n7. Exceptions. The restrictions relating to Confidential or Protected Information set forth in Paragraph 6\nabove do not apply:\n(a) where such disclosure or use is necessary for Employee to faithfully perform his duties as an employee\nforthe Company orfor other employees to faithfully perform their duties forthe Company;\n(b) to information which is now or hereafter becomes known or generally available to the public at large,\nexcept if such knowledge results from a breach of this Agreement or another obligation of confidentiality owed to the\nCompany;\n(c) where Employee has the prior written permission of the Chief Executive Officer of Fifth Street;\n(d) where necessary to comply with any legal obligation applicable to Employee; provided, however, that\nbefore disclosing or permitting disclosure of any Confidential or Protected Information pursuant to a legal obligation,\nEmployee agrees to (i) promptly notify the Chief Executive Officer of Fifth Street of the legal obligation that Employee\nbelieves requires that he make or permit such disclosure, and (ii) delay, if and to the extent lawful to do so, making such\ndisclosure to afford the Company a reasonable opportunity to oppose disclosure, or restrict, limit or condition such\ndisclosure.\n8. Intellectual Properly.\n(a) Ownership of Confidential or Protected Information, Inventions, and CopyrightWorks. Upon conception,\nall Confidential or Protected Information, Inventions, and CopyrightWorks shall become the exclusive property of Fifth\nStreet whether or not patent or copyright applications are filed on the subject matter of the conception.\n(b) Rights in Copyrights. Unless otherwise agreed in writing by the Chief Executive Officer of Fifth Street,\noriginal works of authorship fixed in any tangible form that are or were prepared by Employee (alone orjointly with\nothers) within the scope of Employee's employment with Fifth Street shall be deemed “works made for hire” under\ncopyright laws and shall be owned by Fifth Street. Employee understands that any sale, assignment, license, or release\nof such works can only be made by Fifth Street. Employee will do everything reasonably necessary to enable Fifth Street\nor its nominee to protect its rights in such works, including, without limitation, assigning the copyright and all rights,\nthroughout the world, in and to the work product to Fifth Street and hereby assigns to Fifth Street all such copyright and\nrights as of the date hereof.\n9. Company's Properly. Upon termination of Employee's employment with the Company, regardless of\nthe reason (whether voluntary or involuntary), Employee agrees immediately to surrenderto Fifth Street all property of\nthe Company in Employee's possession, control, or custody, including, but not limited to, the equipment, computers,\nsoftware, creditcards, books, records, reports, files, manuals, literature, the work productof Employee and all other\nCompany employees and all property containing Confidential or Protected Information (including all originals, summaries,\nportions, and copies).\n10. Nondisparagement. E mployee agrees that, during and at any time after E mployee's employment with\nthe Company, regardless of the reason (whether voluntary or involuntary), Employee will not, directly or indirectly,\nthrough any agent or affiliate, make any comments or criticisms (whether of a professional or personal nature) to any\nindividual or other third party or entity regarding the Company (or the terms of any agreement or arrangement of the\nCompany) or any of its respective affiliates, members, partners or employees, disparaging the business or reputation of\nthe Company or any of its affiliates, members, partners or employees.\n11. Remedies. Employee acknowledges and agrees that monetary damages may not be a sufficient\nremedy for any breach of this Agreement, including, without limitation, a breach of the covenants contained in\nParagraphs 2 and 3 or the unauthorized use or disclosure of Confidential or Protected Information, and that the Company\nshall be entitled, without waiving any other rights or remedies, to obtain injunctive or equitable relief as may be deemed\nproper by a court of competentjurisdiction, without obligation to post any bond. The periods of time during which\nEmployee is in violation of the covenants set forth in this Agreement shall be added to the Investor Restricted Period, the\nCustomer Restricted Period, the Employee Restricted Period and the Non-Competition Period, as applicable.\n12. Reasonableness. Employee acknowledges and agrees thatthe restrictions contained in this\nAgreement are reasonable and will not prevent him from finding other employment if his employment with the Company\nends. Employee also acknowledges and agrees that if Employee uses the Company's confidential information, or\ncompetes with the Company in violation of the terms of this Agreement, that he will be causing the Company irreparable\nharm.\n13. Severabiligy'I Revision by Court. The provisions of this Agreement shall be deemed severable and the\ninvalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If\nany provision in this Agreement is found by a court of competentjurisdiction to be unenforceable or unreasonable as\nwritten, Employee and Fifth Street hereby specifically and irrevocably authorize and request said courtto revise the\nunenforceable or unreasonable provisions in a mannerthatshall result in the provision being enforceable while remaining\nas similar as legally possible to the purpose and intent ofthe original.\n14. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties\nhereto with respectto the obligations addressed herein and supersedes all prior or contemporaneous oral or written\nagreements regarding the subject matter hereof.\n15. Amendments; Waivers. Any addition or modification to this Agreement, or waiver of any provision\nhereof, must be in writing and signed by the parties hereto.\n16. Successors and Assigns. Employee understands and agrees that he cannot assign or otherwise\ntransfer any of his obligations underthis Agreement. Employee understands and agrees that Fifth Street may, at its\noption, assign ortransfer its rights under this Agreement to another organization or individual. Employee understands\nand agrees that if there is an assignment or transfer of Fifth Street's rights under this Agreement, then this Agreement will\ncontinue to be effective, will continue to bind Employee, and will inure to the benefit of the organization or individual to\nwhom the transfer or assignment is made.\n17. Choice of Law. This Agreement shall be governed by, construed, and enforced in accordance with the\nlaws of the State ofConnecticut, excluding its conflicts of laws principles.\n18. |urisdiction. Any action or proceeding seeking to enforce any provision of, or based on any right\narising out of, this Agreement may be brought against either party only in the courts of the State of Connecticut located in\nFairfield County. Both parties hereby irrevocably consent to the jurisdiction of any such court in any such action or\nproceeding and waive any objection to venue laid in such courts.\n19. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed an original but all of which together shall constitute one and the same instrument. This Agreement may be\nexecuted by facsimile signature.\n20. Employee's Acknowledgment of Voluntary Agreement. E mployee acknowledges that he has\ncarefully read this Agreement, that he has had the opportunity to receive advice with respect to this Agreement by\ncounsel of his choice, that he understands its terms and its legal effect, and that Employee has entered into this\nAgreement voluntarily and not in reliance upon any promises or representations made by the Company other than those\nmade in this Agreement itself.\n21. No Change in Status. Nothing contained in the Agreement shall affect or in any way change\nE mployee's at-will employment status.\n22. Section 409A.\n(a) Potential Six-Month Delay. Notwithstanding any other provisions of the Agreement, any payment that\nmay be provided underthis Agreement thatthe Company reasonably determines is subjectto Section 409A(a)(2)(B)(i) of\nthe Code shall not be paid or payment commenced until six (6) months afterthe date of Employee's termination of\nemployment (or, ifearlier, Employee's death). On the earliestdate on which such payments can be commenced without\nviolating the requirements ofSection 409A(a)(2)(B)(i) of the Code, Employee shall be paid, in a single cash lump sum, an\namountequal to the aggregate amountofall payments delayed pursuant to the preceding sentence.\n(b) Savings Clause. It is intended that any amounts payable under this Agreement shall either be exempt\nfrom or comply with Section 409A of the Code (including Treasury regulations and other published guidance related\nthereto) so as not to subject Employee to payment of any additional tax, penalty or interest imposed under Section 409A\nof the Code. The provisions of this Agreement shall be construed and interpreted to avoid the imputation of any such\nadditional tax, penalty or interest under Section 409A of the Code yet preserve (to the nearest extent reasonably\npossible) the intended benefit payable to Employee. Notwithstanding the foregoing, the Company makes no\nrepresentation or warranty and shall have no liability to Employee orto any other person if any of the provisions of this\nAgreement are determined to constitute deferred compensation subjectto Section 409A, butthat do not satisfy an\nexemption from, or the conditions of, that section.\n[Signature page follows]\n10\nBy signing below, the Company and Employee, intending to be legally bound, agree to the terms of this\nAgreementas listed and stated above.\nFSC CT, Inc.\nDated: By:\nName:\nTitle:\nEmployee:\nDated:\n11\nEXHIBIT A\nAs used in this Agreement, “Cause”sha|| have the meaning ascribed to it in [the Letter Agreement]/[FOR MR.\nOWENS ONLY: the Amended Offer Letter].	Exhibit 10.17\nFORM OF NON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\n[For Bernard D. Berman, Ivelin M. Dimitrov, Alexander C. Frank and Todd G. Owens]\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement ("Agreement") is entered into between\n[NAME] ("Employee") and FSC CT, Inc. ("F ifth Street"), a Connecticut corporation, as of the day of [MONTHI,\n2014.\nIn this Agreement, Employee and ifth Street are collectively referred to as the "parties". The term "Company" as used in\nthis Agreement includes Fifth Street and all direct and indirect subsidiaries and affiliates of F ifth Street, including, without\nlimitation, Fifth Street Management LLC (the "Advisor"), Fifth Street Asset Management Inc. ("FSAM"), Fifth Street\nHoldings, L.P., Fifth Street Finance Corp. (the "BDC"), Fifth Street Senior Floating Rate Corp. (the "BDC II"), Fifth Street\nSenior Loan Fund I Operating Entity, LLC, Fifth Street Senior Loan Fund II Operating Entity, LLC, Fifth Street Credit\nOpportunities Fund, L.P., Fifth Street Mezzanine Partners II, L.P., Fifth Street Capita LLC, Fifth Street Capital West, Inc.,\nFSC, Inc., FSC Midwest, Inc. and any entities formed after the date hereof which engage the Company to provide\nservices, and any affiliates of ifth Street formed after the date hereof.\n1.\nConsideration. Employee acknowledges that he has been advised by Fifth Street that the restrictions\nand covenants contained in this Agreement, and Employee's agreement to such terms, are of the essence to this\nAgreement and constitute a material inducement to Fifth Street (i) to enter into this Agreement (including, without\nlimitation, agreeing to the terms of Section 2) for the benefit of the Company, and (ii) to employ Employee [FOR\nMESSRS. BERMAN, DIMITROV AND FRANK: on the terms set forth in the Letter Agreement between the Employee\nand Fifth Street, dated as of L__I, 2014 (the "Letter Agreement")]. Employee acknowledges that the Company will not\nemploy Employee without E mployee's agreement to comply with the restrictions and covenants contained in this\nAgreement and without mployee's execution of this Agreement. Employee acknowledges and agrees that the\nCompany's providing employment to Employee is full and complete consideration for the promises and agreements\nmade by Employee herein.\n2.\nNon-Compete.\n(a)\nNon-Competition Period. As used in this Agreement, the term "Non-Competition Period" shall mean the\nperiod of Employee's employment with the Company and the one-year period commencing on the date that Employee's\nemployment with the Company terminates, regardless of the reason for such termination and regardless of whether the\ntermination was voluntary or involuntary (or the three (3) month period commencing on the date that (i) Employee's\nemployment with the Company is terminated by the Company other than for "Cause" (as defined in Exhibit A) within\nninety (90) days prior to a "Change in Control" (as defined in Section (4) below), or (ii) Employee's employment is\nterminated at any time on or after a "Change in Control" (as defined in Section (4) below)); provided that in the event of a\ntermination of Employee's employment for any reason other than for Cause (as defined on E xhibit the Company shall,\nsubject to the following conditions, pay Employee during the Non-Competition Period the sum of (i) his base salary (or a\npro rata portion, if the Non-Competition Period is less than one year in duration), pursuant to the Company's customary\npayroll policies, plus (ii) [FOR MR. OWENS ONLY: a bonus (or a pro rata portion, if the on-Competition Period is less\nthan one year in duration) equal to the average of the discretionary bonuses received by Employee over the preceding\ntwo years (but no less than $1.5 million with respect to any termination in 2014 or 20151/[FOR MESSRS. BERMAN,\nDIMITROV AND FRANK: a bonus (or a pro rata portion, if the Non-Competition Period is less than one year in duration)\nequal to the average of the discretionary bonuses received by Employee over the preceding two years]; [FOR MESSRS.\nBERMAN, DIMITROV AND FRANK: provided, further, that solely in the event of a termination of Employee's\nemployment by the Company without Cause or by the Employee for Good Reason, Employee shall be entitled to\naccelerated vesting of Options and RSUs as provided for in Annex A to the Letter Agreement]; provided that (I) the\ncommencement\nof\nthe\nforegoing\npayments\nare\nconditioned\non\nthe\neffectiveness\n(i.e.,\nthe\nexpiration\nof\nany\napplicable\nrevocation period without a revocation by Employee) of a release and waiver of all claims (the "Release") by Employee,\nin the form attached as exhibit B to the Letter Agreement [FOR MR. OWEN ONLY: in the form attached as Exhibit B to\nthe Offer Letter from Fifth Street to Employee dated as of 2014 (the "Amended Offer Letter")],\nwithin\n30\ndays\nfrom the date of termination; (II) the foregoing payments are conditioned on Employee's full compliance in all respects\nwith the post-termination obligations set forth in this Agreement (III) the post-termination obligations of Employee under\nthis Agreement shall remain in full force and effect, and Employee shall remain bound in full by such obligations,\nregardless of whether Employee elects to accept payment of such amounts, (IV) if the Company, in its sole\ndiscretion,\nwaives compliance with Section 2(a) of the Agreement in writing, the payments provided for in sub-clauses (a)(i) and (ii)\nshall no longer be paid from and after the effective date of such waiver (it being understood that no such waiver shall\naffect the Company's payment obligations under [the Letter Agreement]/[FOR MR. OWENS ONLY: the Amended Offer\nLetter] and in the event of such a waiver, the other covenants contained in this Agreement shall not be affected and will\ncontinue in full force and effect in accordance with the terms of this Agreement), [and] (V) if the termination occurs within\n90 days prior to, or at any time on or after a "Change in Control" (as defined in Section (4) below) the payment shall equal\nthree\n(3)\nmonths\nof\nbase\nsalary\nand\na\npro\nrata\nportion\nof\nthe\napplicable\nbonus\nequal\nto\nthree\n(3)\nmonths\n[and\nFOR\nMR.\nOWENS ONLY: (VI) any payment obligations under this Agreement shall be reduced by all post-termination separation\npayments paid to the Employee under the Letter Agreement]. Employee covenants, during the one year period following\nthe termination of his employment, to provide to the Company, as promptly as reasonably practicable prior to\ncommencing employment, with advance written notice of the name of his new employer. For purposes of this Agreement,\n"base salary" shall mean an amount equal to the highest base salary ever paid to Employee during his employment by\nthe Company.\n2\n(b)\nNon-Competition. In order to protect the Company's Confidential or Protected Information, E mployee\nagrees that, during the Non-Competition Period, mployee shall not, directly or indirectly, own, manage, operate, control\nor participate in the ownership, management, operation or control of, or be connected as an officer, employee, director,\nconsultant, advisor, agent, independent contractor, partner, member, stockholder, trustee, or otherwise with, or have any\nfinancial interests in, or aid or assist anyone else in the conduct of, or in any other capacity be engaged directly or\nindirectly in, any entity or business (i) that is in competition with the Company's business of arranging and/or providing\nfinancing solutions to sponsor-led, middle market acquisitions or (ii) that is in competition with any other type of business\nin which the Company is also engaged, or plans to be engaged (each, a "Competitive Business"). The ownership of less\nthan two percent (2%) of any class of the outstanding securities of any corporation whose shares are traded on a U.S.\nnational securities exchange or quoted on The Nasdaq Stock Market, even though such corporation may be a\nCompetitive Business, shall not be deemed to constitute an interest in such competitor which violates this paragraph.\nFollowing the termination of Employee's employment, the foregoing shall not prevent E mployee from providing services\nto any enterprise engaged in a Competitive Business to the extent that such services, or any supervisory responsibility of\nEmployee associated with such position, are related only to the products or lines of business of such entity which,\nstanding alone, would not constitute a Competitive Business, so long as the portion of the enterprise that is a Competitive\nBusiness does not represent more than fifty percent (50%) of the revenues of such enterprise at any time.\n(c)\nTiming of Payments. The payments described in Section 2(a) above shall be paid, minus applicable\ndeductions, including deductions for tax withholding, in equal payments on the regular payroll dates during the\nNon-Competition eriod following Employee's termination of employment. Commencement of payments described in\nSection 2(a) shall begin on the payroll date within 30 days of the effective date of the Release. The first payment shall\ninclude those payments that would have previously been paid if the payments described in Section 2(a) had begun on\nthe first payroll date following Employee's termination of employment This timing of the commencement of payments is\nsubject to Section 22 below and Annex D to the Letter Agreement.\n(d)\nFor purposes of this Agreement, "termination of employment" shall mean a "separation of service" as\ndefined in Section 409A of the Internal evenue Code of 1986, as amended, (the "Code") and Treasury Regulations\nSection 1.409A-1(h) without regard to the optional alternative definitions available thereunder.\n(e)\nThe payments described in Section 2(a) shall be treated as a series of separate payments for purposes\nof Section 409A of the Code.\n(f)\nAny amounts payable to Employee by the Company under this Agreement or under any other plan or\narrangement of the Company which are subject to Section 409A and are conditioned upon execution of a waiver and\nrelease that may be executed and/or revoked in a calendar year following the calendar year in which the payment event\n(such as termination of employment) occurs shall commence payment only in such following calendar year, to the extent\nnecessary to comply with Section 409A.\n3\n3.\nNon-Solicitation Covenants.\n(a)\nRestricted eriod.\nAs used in this Agreement, the term "Investor Restricted Period" shall mean (x) the term of Employee's\nemployment with the Company, and (y) (I) the one-year period commencing on the date that\nEmployee's employment with the Company terminates, regardless of the reason for such termination\ni.\nand regardless of whether the termination was voluntary or involuntary, or, if applicable, (II) the six (6)\nmonth period commencing on the date that mployee's employment with the Company terminates,\nprovided that (i) such termination was by the Company other than for "Cause" (as defined in E xhibit A)\nand was within ninety (90) days prior to a "Change in Control" (as defined in Section (4) below) or (ii)\nsuch termination was on or after a "Change in Control" (as defined in Section (4) below).\nAs used in this Agreement, the term "Customer Restricted Period" shall mean (x) the term of\nEmployee's employment with the Company, and (y) (I) the one-year period commencing on the date\nthat E mployee's employment with the Company terminates, regardless of the reason for such\nii.\ntermination and regardless of whether the termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee's employment with the Company\nterminates, provided that (i) such termination was by the Company other than for "Cause" (as defined\nin E xhibit A) and was within ninety (90) days prior to a "Change in Control" (as defined in Section (4)\nbelow) or (ii) such termination was on or after a "Change in Control" (as defined in Section (4) below).\nAs used in this Agreement, the term "Employee Restricted Period" shall mean (x) the term of\nEmployee's employment with the Company, and (y) (I) the two-year period commencing on the date\nthat E mployee's employment with the Company terminates, regardless of the reason for such\niii.\ntermination and regardless of whether the termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that mployee's employment with the Company\nterminates, provided that (i) such termination was by the Company other than for "Cause" (as defined\nin xhibit A) and was within ninety (90) days prior to a "Change in Control" (as defined in Section (4)\nbelow) or (ii) such termination was on or after a "Change in Control" (as defined in Section (4) below).\n(b)\nNon-Solicitation of Investors. Employee agrees that, during the Investor Restricted eriod, E mployee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit or accept any\ninvestment from any person or entity that was an Investor, at any time prior to the termination of mployee's employment\nwith the Company; (ii) induce or influence any such Investor to discontinue, modify, or reduce its business relationship\nwith the Company; or (iii) assist or cause any person or entity to engage in any of the actions in which mployee has\nagreed not to engage under this paragraph. The term "Investor" means investors (and their affiliates) that did business\nwith the Company, or any account, fund or other entity for which the Advisor or any affiliate of the Advisor provided\ninvestment advisory or management services at any time during Employee's employment and all potential investors\nwhich, as of the last day of mployee's employment, the Company was soliciting or marketing (including, without\nlimitation, any potentia investor (or affiliate thereof) to which the Company delivered a PPM or similar offering\nmemorandum within the 2 years preceding the termination of :mployee's employment). Notwithstanding the foregoing,\nno person shall be deemed to be an Investor solely based on the fact that such person is or was a stockholder of the\nBDC or BDC II.\n4\n(c)\nNon-Solicitation of Customers. E mployee agrees that, during the Customer Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit business (unless\nsuch business is noncompetitive to the Company's business) from any customer or client of the Company (a "Covered\nCustomer"); (ii) induce or influence any Covered Customer to discontinue, modify, or reduce its business relationship with\nthe Company; (iii) solicit, induce or influence any entity to not accept a written term sheet or commitment letter that was\nissued in the six months prior to mployee's termination from the Company or discontinue a loan arrangement with the\nCompany that that was in existence at the time of Employee's termination; or (iv) assist or cause any person or entity to\nengage in any of the actions in which Employee has agreed not to engage under this paragraph.\n(d)\nNon-Solicitation of Employees. E mployee agrees that, during the Employee Restricted Period, :mployee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) induce, encourage, or\nsolicit any individual who is employed by the Company as of the date of Employee's termination of employment, or within\none year prior thereto, to leave such employment or to become employed by or provide services to any person or entity\nother than the Company, or (ii) assist or cause any person or entity to engage in any of the actions in which Employee\nhas agreed not to engage under this paragraph.\n4.\nDefinition of "Change in Control". As used in this Agreement, the term "Change in Control" shall mean\nthat Leonard Tannenbaum and his affiliated entities collectively cease to have beneficial voting control of FSAM (or, if an\nIPO has not occurred, of Fifth Street Holdings, LP).\n5.\nConfidential or Protected Information. As used in this Agreement, "Confidential or Protected\nInformation" means:\n(a)\nconfidential, proprietary or trade secret information (including, without limitation, all information as to\nwhich the Company has made efforts to maintain secrecy or that the law protects from disclosure) made available to\nEmployee, or to which mployee has access, or of which Employee becomes aware during his employment, including,\nwithout limitation, information related to investments made by the Company, information related to the Company's or any\nother entity's businesses, systems, operations, finances, investments, transactions, negotiations, claims, potential claims,\nsales, marketing, plans, pricing, customers, prospective customers, policies, practices, procedures, products, services,\nfinances, accounting practices or procedures, financial or investment performance (including, without limitation, any\n"track record" data or information), return on investment or capital, internal rate of return ("IRR"), relationships with third\nparties, ownership, investors, partners, employees, and management, as well as the Company's or any other entity's\nsoftware (in any stage of development), programs (whether or not in final form), ideas, inventions, concepts, formulas,\nmethods, development, research, designs, drawings, schematics, specifications, techniques, models, data, source code,\nobject code, flow diagrams, and documentation; and\n5\n(b)\nall information concerning any Inventions or Copyright Works. The term "Invention" means any new or\nuseful art, discovery, contribution, finding, or improvement, whether or not patentable. The term "Copyright Works"\nmeans materials for which copyright protection may be obtained, including, but not limited to, computer programs, artistic\nworks (including designs, graphs, drawings, blueprints and other works), literary works, recordings, photographs, slides,\nmotion pictures, and audiovisual works.\nThe forgoing description of "Confidential or Protected Information" includes all such information in any and all\nforms, whether written, oral, on a computer, tape, chip, or disk, whether prepared by Employee, by the Company, or by\nothers, whether or not fixed in tangible form, and includes all originals, summaries, portions, and copies of any and all\nsuch information.\n6.\nNondisclosure of Confidential or Protected Information. E xcept as provided below in Paragraph 7,\nmployee agrees that during E mployee's employment with the Company and after Employee's employment with the\nCompany terminates, regardless of why such employment terminated and regardless of whether the termination was\nvoluntary or involuntary, Employee will not disclose to anyone, publish, sell, assign, license, or attempt to do so, and will\nnot use for E mployee's own personal benefit or the benefit of anyone other than the Company, whether directly or\nindirectly, any Confidential or P rotected Information. E mployee also agrees to:\n(a)\nmaintain in a confidential and protected manner all Confidential or Protected Information;\n(b)\ntake all reasonable steps to ensure that persons and entities working for and with Employee maintain in\na\nconfidential and protected manner all Confidentia or Protected Information;\n(c)\ntake all reasonable steps to prevent unauthorized persons and entities from obtaining, disseminating, or\nusing Confidential or Protected Information; and\n(d)\npromptly report to the Chief Executive Officer of Fifth Street whenever E mployee learns it is likely that\nany unauthorized person or entity seeks or plans to obtain, disseminate, or use any Confidential or Protected Information.\n6\n7.\nExceptions. The restrictions relating to Confidentia or Protected Information set forth in Paragraph 6\nabove do not apply:\n(a)\nwhere such disclosure or use is necessary for E mployee to faithfully perform his duties as an employee\nfor the Company or for other employees to faithfully perform their duties for the Company;\n(b)\nto information which is now or hereafter becomes known or generally available to the public at large,\nexcept if such knowledge results from a breach of this Agreement or another obligation of confidentiality owed to the\nCompany;\n(c)\nwhere Employee has the prior written permission of the Chief Executive Officer of ifth Street;\n(d)\nwhere necessary to comply with any legal obligation applicable to Employee; provided, however, that\nbefore disclosing or permitting disclosure of any Confidential or Protected Information pursuant to a legal obligation,\nEmployee agrees to (i) promptly notify the Chief Executive Officer of ifth Street of the legal obligation that E mployee\nbelieves requires that he make or permit such disclosure, and (ii) delay, if and to the extent lawful to do so, making such\ndisclosure to afford the Company a reasonable opportunity to oppose disclosure, or restrict, limit or condition such\ndisclosure.\n8.\nIntellectual Property.\n(a)\nOwnership of Confidential or Protected Information, Inventions, and Copyright Works. Upon conception,\nall\nConfidential or Protected Information, Inventions, and Copyright Works shall become the exclusive property of Fifth\nStreet whether or not patent or copyright applications are filed on the subject matter of the conception.\n(b)\nRights in Copyrights. Unless otherwise agreed in writing by the Chief Executive fficer of F ifth Street,\norigina works of authorship fixed in any tangible form that are or were prepared by Employee (alone or jointly with\nothers) within the scope of Employee's employment with ifth Street shall be deemed "works made for hire" under\ncopyright laws and shall be owned by ifth Street Employee understands that any sale, assignment, license, or release\nof such works can only be made by Fifth Street Employee will do everything reasonably necessary to enable Fifth Street\nor its nominee to protect its rights in such works, including, without limitation, assigning the copyright and all rights,\nthroughout the world, in and to the work product to ifth Street and hereby assigns to Fifth Street all such copyright and\nrights as of the date hereof.\n9.\nCompany's Property. Jpon termination of Employee's employment with the Company, regardless of\nthe reason (whether voluntary or involuntary), Employee agrees immediately to surrender to Fifth Street all property of\nthe Company in Employee's possession, control, or custody, including, but not limited to, the equipment, computers,\nsoftware, credit cards, books, records, reports, files, manuals, literature, the work product of Employee and all other\nCompany employees and all property containing Confidentia or rotected Information (including all originals, summaries,\nportions, and copies).\n7\n10.\nNondisparagement. E mployee agrees that, during and at any time after mployee's employment with\nthe Company, regardless of the reason (whether voluntary or involuntary), E mployee will not, directly or indirectly,\nthrough any agent or affiliate, make any comments or criticisms (whether of a professiona or personal nature) to any\nindividual or other third party or entity regarding the Company (or the terms of any agreement or arrangement of the\nCompany) or any of its respective affiliates, members, partners or employees, disparaging the business or reputation of\nthe Company or any of its affiliates, members, partners or employees.\n11.\nRemedies. mployee acknowledges and agrees that monetary damages may not be a sufficient\nremedy for any breach of this Agreement, including, without limitation, a breach of the covenants contained in\nParagraphs 2 and 3 or the unauthorized use or disclosure of Confidential or Protected Information, and that the Company\nshall be entitled, without waiving any other rights or remedies, to obtain injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction, without obligation to post any bond. The periods of time during which\nEmployee is in violation of the covenants set forth in this Agreement shall be added to the Investor Restricted Period, the\nCustomer Restricted Period, the Employee Restricted Period and the Non-Competition Period, as applicable.\n12.\nReasonableness. Employee acknowledges and agrees that the restrictions contained in this\nAgreement are reasonable and will not prevent him from finding other employment if his employment with the Company\nends Employee also acknowledges and agrees that if mployee uses the Company's confidential information, or\ncompetes with the Company in violation of the terms of this Agreement, that he wil be causing the Company irreparable\nharm.\n13.\nSeverability; Revision by Court. The provisions of this Agreement shall be deemed severable and the\ninvalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If\nany provision in this Agreement is found by a court of competent jurisdiction to be unenforceable or unreasonable as\nwritten, Employee and Fifth Street hereby specifically and irrevocably authorize and request said court to revise the\nunenforceable or unreasonable provisions in a manner that shall result in the provision being enforceable while remaining\nas similar as legally possible to the purpose and intent of the original.\n14.\nEntire Agreement This Agreement constitutes the entire agreement and understanding of the parties\nhereto with respect to the obligations addressed herein and supersedes all prior or contemporaneous oral or written\nagreements regarding the subject matter hereof.\n15.\nAmendments; Waivers. Any addition or modification to this Agreement, or waiver of any provision\nhereof, must be in writing and signed by the parties hereto.\n8\n16.\nSuccessors and Assigns. E :mployee understands and agrees that he cannot assign or otherwise\ntransfer any of his obligations under this Agreement. mployee understands and agrees that Fifth Street may, at its\noption, assign or transfer its rights under this Agreement to another organization or individual. E mployee understands\nand agrees that if there is an assignment or transfer of Fifth Street's rights under this Agreement, then this Agreement will\ncontinue to be effective, will continue to bind Employee, and wil inure to the benefit of the organization or individua to\nwhom the transfer or assignment is made.\n17.\nChoice of Law. This Agreement shall be governed by, construed, and enforced in accordance with the\nlaws of the State of Connecticut, excluding its conflicts of laws principles.\n18.\nurisdiction. Any action or proceeding seeking to enforce any provision of, or based on any right\narising out of, this Agreement may be brought against either party only in the courts of the State of Connecticut located in\nFairfield County. Both parties hereby irrevocably consent to the jurisdiction of any such court in any such action or\nproceeding and waive any objection to venue laid in such courts.\n19.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed an original but all of which together shall constitute one and the same instrument This Agreement may be\nexecuted by facsimile signature.\n20.\nEmployee's Acknowledgment of Voluntary Agreement. Employee acknowledges that he has\ncarefully read this Agreement, that he has had the opportunity to receive advice with respect to this Agreement by\ncounsel of his choice, that he understands its terms and its legal effect, and that Employee has entered into this\nAgreement voluntarily and not in reliance upon any promises or representations made by the Company other than those\nmade in this Agreement itself.\n21.\nNo Change in Status. Nothing contained in the Agreement shall affect or in any way change\nEmployee's at-will employment status.\n22.\nSection 409A.\n(a)\nPotential Six-Month Delay. Notwithstanding any other provisions of the Agreement, any payment that\nmay be provided under this Agreement that the Company reasonably determines is subject to Section 409A(a)(2)(B)(i) of\nthe Code shall not be paid or payment commenced until six (6) months after the date of Employee's termination of\nemployment (or, if earlier, Employee's death). On the earliest date on which such payments can be commenced without\nviolating the requirements of Section 409A(a)(2)(B)(i) of the Code, Employee shall be paid, in a single cash lump sum, an\namount equal to the aggregate amount of all payments delayed pursuant to the preceding sentence.\n9\n(b)\nSavings Clause. It is intended that any amounts payable under this Agreement shal either be exempt\nfrom or comply with Section 409A of the Code (including Treasury regulations and other published guidance related\nthereto) so as not to subject Employee to payment of any additional tax, penalty or interest imposed under Section 409A\nof the Code. The provisions of this Agreement shall be construed and interpreted to avoid the imputation of any such\nadditional tax, penalty or interest under Section 409A of the Code yet preserve (to the nearest extent reasonably\npossible) the intended benefit payable to Employee. Notwithstanding the foregoing, the Company makes no\nrepresentation or warranty and shall have no liability to Employee or to any other person if any of the provisions of this\nAgreement are determined to constitute deferred compensation subject to Section 409A, but that do not satisfy an\nexemption from, or the conditions of, that section.\n[S ignature page follows]\n10\nBy signing below, the Company and Employee, intending to be legally bound, agree to the terms of this\nAgreement as listed and stated above.\nFSC CT, Inc.\nDated:\nBy:\nName:\nTitle:\nEmployee:\nDated:\n11\nEXHIBIT A\nAs used in this Agreement, "Cause" shall have the meaning ascribed to it in [the Letter Agreement][FOR MR.\nOWENS ONLY: the Amended Offer Letter].	Exhibit 10.17\nFORM OF NON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\n[For Bernard D. Berman, Ivelin M. Dimitrov, Alexander C. Frank and Todd G. Owens]\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (“Agreement”) is entered into between\n[NAME] (“Employee”) and FSC CT, Inc. (“Fifth Street”), a Connecticut corporation, as of the [__] day of [MONTH], 2014.\nIn this Agreement, Employee and Fifth Street are collectively referred to as the “parties”. The term “Company” as used in\nthis Agreement includes Fifth Street and all direct and indirect subsidiaries and affiliates of Fifth Street, including, without\nlimitation, Fifth Street Management LLC (the “Advisor”), Fifth Street Asset Management Inc. (“FSAM”), Fifth Street\nHoldings, L.P ., Fifth Street Finance Corp. (the “BDC”), Fifth Street Senior Floating Rate Corp. (the “BDC II”), Fifth Street\nSenior Loan Fund I Operating Entity, LLC, Fifth Street Senior Loan Fund II Operating Entity, LLC, Fifth Street Credit\nOpportunities Fund, L.P ., Fifth Street Mezzanine Partners II, L.P ., Fifth Street Capital LLC, Fifth Street Capital West, Inc.,\nFSC, Inc., FSC Midwest, Inc. and any entities formed after the date hereof which engage the Company to provide\nservices, and any affiliates of Fifth Street formed after the date hereof.\n1.\nConsideration. Employee acknowledges that he has been advised by Fifth Street that the restrictions\nand covenants contained in this Agreement, and Employee's agreement to such terms, are of the essence to this\nAgreement and constitute a material inducement to Fifth Street (i) to enter into this Agreement (including, without\nlimitation, agreeing to the terms of Section 2) for the benefit of the Company, and (ii) to employ Employee [FOR\nMESSRS. BERMAN, DIMITROV AND FRANK: on the terms set forth in the Letter Agreement between the Employee\nand Fifth Street, dated as of [____], 2014 (the “Letter Agreement”)]. Employee acknowledges that the Company will not\nemploy Employee without Employee’s agreement to comply with the restrictions and covenants contained in this\nAgreement and without Employee’s execution of this Agreement. Employee acknowledges and agrees that the\nCompany’s providing employment to Employee is full and complete consideration for the promises and agreements\nmade by Employee herein.\n2.\nNon-Compete.\n(a)\nNon-Competition Period. As used in this Agreement, the term “Non-Competition Period” shall mean the\nperiod of Employee's employment with the Company and the one-year period commencing on the date that Employee’s\nemployment with the Company terminates, regardless of the reason for such termination and regardless of whether the\ntermination was voluntary or involuntary (or the three (3) month period commencing on the date that (i) Employee’s\nemployment with the Company is terminated by the Company other than for “Cause” (as defined in Exhibit A) within\nninety (90) days prior to a “Change in Control” (as defined in Section (4) below), or (ii) Employee’s employment is\nterminated at any time on or after a “Change in Control” (as defined in Section (4) below)); provided that in the event of a\ntermination of Employee’s employment for any reason other than for Cause (as defined on Exhibit A), the Company shall,\nsubject to the following conditions, pay Employee during the Non-Competition Period the sum of (i) his base salary (or a\npro rata portion, if the Non-Competition Period is less than one year in duration), pursuant to the Company’s customary\npayroll policies, plus (ii) [FOR MR. OWENS ONLY: a bonus (or a pro rata portion, if the Non-Competition Period is less\nthan one year in duration) equal to the average of the discretionary bonuses received by Employee over the preceding\ntwo years (but no less than $1.5 million with respect to any termination in 2014 or 2015]/[FOR MESSRS. BERMAN,\nDIMITROV AND FRANK: a bonus (or a pro rata portion, if the Non-Competition Period is less than one year in duration)\nequal to the average of the discretionary bonuses received by Employee over the preceding two years]; [FOR MESSRS.\nBERMAN, DIMITROV AND FRANK: provided, further, that solely in the event of a termination of Employee’s\nemployment by the Company without Cause or by the Employee for Good Reason, Employee shall be entitled to\naccelerated vesting of Options and RSUs as provided for in Annex A to the Letter Agreement]; provided that (I) the\ncommencement of the foregoing payments are conditioned on the effectiveness (i.e., the expiration of any applicable\nrevocation period without a revocation by Employee) of a release and waiver of all claims (the “Release”) by Employee,\nin the form attached as exhibit B to the Letter Agreement [FOR MR. OWEN ONLY: in the form attached as Exhibit B to\nthe Offer Letter from Fifth Street to Employee dated as of [_____], 2014 (the “Amended Offer Letter”)], within 30 days\nfrom the date of termination; (II) the foregoing payments are conditioned on Employee’s full compliance in all respects\nwith the post-termination obligations set forth in this Agreement, (III) the post-termination obligations of Employee under\nthis Agreement shall remain in full force and effect, and Employee shall remain bound in full by such obligations,\nregardless of whether Employee elects to accept payment of such amounts, (IV) if the Company, in its sole discretion,\nwaives compliance with Section 2(a) of the Agreement in writing, the payments provided for in sub-clauses (a)(i) and (ii)\nshall no longer be paid from and after the effective date of such waiver (it being understood that no such waiver shall\naffect the Company’s payment obligations under [the Letter Agreement]/[FOR MR. OWENS ONLY: the Amended Offer\nLetter] and in the event of such a waiver, the other covenants contained in this Agreement shall not be affected and will\ncontinue in full force and effect in accordance with the terms of this Agreement), [and] (V) if the termination occurs within\n90 days prior to, or at any time on or after a “Change in Control” (as defined in Section (4) below) the payment shall equal\nthree (3) months of base salary and a pro rata portion of the applicable bonus equal to three (3) months [and FOR MR.\nOWENS ONLY: (VI) any payment obligations under this Agreement shall be reduced by all post-termination separation\npayments paid to the Employee under the Letter Agreement]. Employee covenants, during the one year period following\nthe termination of his employment, to provide to the Company, as promptly as reasonably practicable prior to\ncommencing employment, with advance written notice of the name of his new employer. For purposes of this Agreement,\n“base salary” shall mean an amount equal to the highest base salary ever paid to Employee during his employment by\nthe Company.\n2\n(b)\nNon-Competition. In order to protect the Company’s Confidential or Protected Information, Employee\nagrees that, during the Non-Competition Period, Employee shall not, directly or indirectly, own, manage, operate, control\nor participate in the ownership, management, operation or control of, or be connected as an officer, employee, director,\nconsultant, advisor, agent, independent contractor, partner, member, stockholder, trustee, or otherwise with, or have any\nfinancial interests in, or aid or assist anyone else in the conduct of, or in any other capacity be engaged directly or\nindirectly in, any entity or business (i) that is in competition with the Company's business of arranging and/or providing\nfinancing solutions to sponsor-led, middle market acquisitions or (ii) that is in competition with any other type of business\nin which the Company is also engaged, or plans to be engaged (each, a “Competitive Business”). The ownership of less\nthan two percent (2%) of any class of the outstanding securities of any corporation whose shares are traded on a U.S .\nnational securities exchange or quoted on The Nasdaq Stock Market, even though such corporation may be a\nCompetitive Business, shall not be deemed to constitute an interest in such competitor which violates this paragraph.\nFollowing the termination of Employee’s employment, the foregoing shall not prevent Employee from providing services\nto any enterprise engaged in a Competitive Business to the extent that such services, or any supervisory responsibility of\nEmployee associated with such position, are related only to the products or lines of business of such entity which,\nstanding alone, would not constitute a Competitive Business, so long as the portion of the enterprise that is a Competitive\nBusiness does not represent more than fifty percent (50%) of the revenues of such enterprise at any time.\n(c)\nTiming of Payments. The payments described in Section 2(a) above shall be paid, minus applicable\ndeductions, including deductions for tax withholding, in equal payments on the regular payroll dates during the\nNon-Competition Period following Employee’s termination of employment. Commencement of payments described in\nSection 2(a) shall begin on the payroll date within 30 days of the effective date of the Release. The first payment shall\ninclude those payments that would have previously been paid if the payments described in Section 2(a) had begun on\nthe first payroll date following Employee’s termination of employment. This timing of the commencement of payments is\nsubject to Section 22 below and Annex D to the Letter Agreement.\n(d)\nFor purposes of this Agreement, “termination of employment” shall mean a “separation of service” as\ndefined in Section 409A of the Internal Revenue Code of 1986, as amended, (the “Code”) and Treasury Regulations\nSection 1.409A-1(h) without regard to the optional alternative definitions available thereunder.\n(e)\nThe payments described in Section 2(a) shall be treated as a series of separate payments for purposes\nof Section 409A of the Code.\n(f)\nAny amounts payable to Employee by the Company under this Agreement or under any other plan or\narrangement of the Company which are subject to Section 409A and are conditioned upon execution of a waiver and\nrelease that may be executed and/or revoked in a calendar year following the calendar year in which the payment event\n(such as termination of employment) occurs shall commence payment only in such following calendar year, to the extent\nnecessary to comply with Section 409A.\n3\n3.\nNon-Solicitation Covenants.\n(a)\nRestricted Period.\ni.\nAs used in this Agreement, the term “Investor Restricted Period” shall mean (x) the term of Employee's\nemployment with the Company, and (y) (I) the one-year period commencing on the date that\nEmployee's employment with the Company terminates, regardless of the reason for such termination\nand regardless of whether the termination was voluntary or involuntary, or, if applicable, (II) the six (6)\nmonth period commencing on the date that Employee’s employment with the Company terminates,\nprovided that (i) such termination was by the Company other than for “Cause” (as defined in Exhibit A)\nand was within ninety (90) days prior to a “Change in Control” (as defined in Section (4) below) or (ii)\nsuch termination was on or after a “Change in Control” (as defined in Section (4) below).\nii.\nAs used in this Agreement, the term “Customer Restricted Period” shall mean (x) the term of\nEmployee's employment with the Company, and (y) (I) the one-year period commencing on the date\nthat Employee's employment with the Company terminates, regardless of the reason for such\ntermination and regardless of whether the termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee’s employment with the Company\nterminates, provided that (i) such termination was by the Company other than for “Cause” (as defined\nin Exhibit A) and was within ninety (90) days prior to a “Change in Control” (as defined in Section (4)\nbelow) or (ii) such termination was on or after a “Change in Control” (as defined in Section (4) below).\niii.\nAs used in this Agreement, the term “Employee Restricted Period” shall mean (x) the term of\nEmployee's employment with the Company, and (y) (I) the two-year period commencing on the date\nthat Employee's employment with the Company terminates, regardless of the reason for such\ntermination and regardless of whether the termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee’s employment with the Company\nterminates, provided that (i) such termination was by the Company other than for “Cause” (as defined\nin Exhibit A) and was within ninety (90) days prior to a “Change in Control” (as defined in Section (4)\nbelow) or (ii) such termination was on or after a “Change in Control” (as defined in Section (4) below).\n(b)\nNon-Solicitation of Investors. Employee agrees that, during the Investor Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit or accept any\ninvestment from any person or entity that was an Investor, at any time prior to the termination of Employee's employment\nwith the Company; (ii) induce or influence any such Investor to discontinue, modify, or reduce its business relationship\nwith the Company; or (iii) assist or cause any person or entity to engage in any of the actions in which Employee has\nagreed not to engage under this paragraph. The term “Investor” means investors (and their affiliates) that did business\nwith the Company, or any account, fund or other entity for which the Advisor or any affiliate of the Advisor provided\ninvestment advisory or management services at any time during Employee's employment and all potential investors\nwhich, as of the last day of Employee's employment, the Company was soliciting or marketing (including, without\nlimitation, any potential investor (or affiliate thereof) to which the Company delivered a PPM or similar offering\nmemorandum within the 2 years preceding the termination of Employee's employment). Notwithstanding the foregoing,\nno person shall be deemed to be an Investor solely based on the fact that such person is or was a stockholder of the\nBDC or BDC II.\n4\n(c)\nNon-Solicitation of Customers. Employee agrees that, during the Customer Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit business (unless\nsuch business is noncompetitive to the Company's business) from any customer or client of the Company (a “Covered\nCustomer”); (ii) induce or influence any Covered Customer to discontinue, modify, or reduce its business relationship with\nthe Company; (iii) solicit, induce or influence any entity to not accept a written term sheet or commitment letter that was\nissued in the six months prior to Employee's termination from the Company or discontinue a loan arrangement with the\nCompany that that was in existence at the time of Employee's termination; or (iv) assist or cause any person or entity to\nengage in any of the actions in which Employee has agreed not to engage under this paragraph.\n(d)\nNon-Solicitation of Employees. Employee agrees that, during the Employee Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) induce, encourage, or\nsolicit any individual who is employed by the Company as of the date of Employee's termination of employment, or within\none year prior thereto, to leave such employment or to become employed by or provide services to any person or entity\nother than the Company, or (ii) assist or cause any person or entity to engage in any of the actions in which Employee\nhas agreed not to engage under this paragraph.\n4.\nDefinition of “Change in Control”. As used in this Agreement, the term “Change in Control” shall mean\nthat Leonard Tannenbaum and his affiliated entities collectively cease to have beneficial voting control of FSAM (or, if an\nIPO has not occurred, of Fifth Street Holdings, LP).\n5.\nConfidential or Protected Information. As used in this Agreement, “Confidential or Protected\nInformation” means:\n(a)\nconfidential, proprietary or trade secret information (including, without limitation, all information as to\nwhich the Company has made efforts to maintain secrecy or that the law protects from disclosure) made available to\nEmployee, or to which Employee has access, or of which Employee becomes aware during his employment, including,\nwithout limitation, information related to investments made by the Company, information related to the Company's or any\nother entity's businesses, systems, operations, finances, investments, transactions, negotiations, claims, potential claims,\nsales, marketing, plans, pricing, customers, prospective customers, policies, practices, procedures, products, services,\nfinances, accounting practices or procedures, financial or investment performance (including, without limitation, any\n“track record” data or information), return on investment or capital, internal rate of return (“IRR”), relationships with third\nparties, ownership, investors, partners, employees, and management, as well as the Company's or any other entity's\nsoftware (in any stage of development), programs (whether or not in final form), ideas, inventions, concepts, formulas,\nmethods, development, research, designs, drawings, schematics, specifications, techniques, models, data, source code,\nobject code, flow diagrams, and documentation; and\n5\n(b)\nall information concerning any Inventions or Copyright Works. The term “Invention” means any new or\nuseful art, discovery, contribution, finding, or improvement, whether or not patentable. The term “Copyright Works”\nmeans materials for which copyright protection may be obtained, including, but not limited to, computer programs, artistic\nworks (including designs, graphs, drawings, blueprints and other works), literary works, recordings, photographs, slides,\nmotion pictures, and audiovisual works.\nThe forgoing description of “Confidential or Protected Information” includes all such information in any and all\nforms, whether written, oral, on a computer, tape, chip, or disk, whether prepared by Employee, by the Company, or by\nothers, whether or not fixed in tangible form, and includes all originals, summaries, portions, and copies of any and all\nsuch information.\n6.\nNondisclosure of Confidential or Protected Information. Except as provided below in Paragraph 7,\nEmployee agrees that during Employee's employment with the Company and after Employee's employment with the\nCompany terminates, regardless of why such employment terminated and regardless of whether the termination was\nvoluntary or involuntary, Employee will not disclose to anyone, publish, sell, assign, license, or attempt to do so, and will\nnot use for Employee's own personal benefit or the benefit of anyone other than the Company, whether directly or\nindirectly, any Confidential or Protected Information. Employee also agrees to:\n(a)\nmaintain in a confidential and protected manner all Confidential or Protected Information;\n(b)\ntake all reasonable steps to ensure that persons and entities working for and with Employee maintain in\na confidential and protected manner all Confidential or Protected Information;\n(c)\ntake all reasonable steps to prevent unauthorized persons and entities from obtaining, disseminating, or\nusing Confidential or Protected Information; and\n(d)\npromptly report to the Chief Executive Officer of Fifth Street whenever Employee learns it is likely that\nany unauthorized person or entity seeks or plans to obtain, disseminate, or use any Confidential or Protected Information.\n6\n7.\nExceptions. The restrictions relating to Confidential or Protected Information set forth in Paragraph 6\nabove do not apply:\n(a)\nwhere such disclosure or use is necessary for Employee to faithfully perform his duties as an employee\nfor the Company or for other employees to faithfully perform their duties for the Company;\n(b)\nto information which is now or hereafter becomes known or generally available to the public at large,\nexcept if such knowledge results from a breach of this Agreement or another obligation of confidentiality owed to the\nCompany;\n(c)\nwhere Employee has the prior written permission of the Chief Executive Officer of Fifth Street;\n(d)\nwhere necessary to comply with any legal obligation applicable to Employee; provided, however, that\nbefore disclosing or permitting disclosure of any Confidential or Protected Information pursuant to a legal obligation,\nEmployee agrees to (i) promptly notify the Chief Executive Officer of Fifth Street of the legal obligation that Employee\nbelieves requires that he make or permit such disclosure, and (ii) delay, if and to the extent lawful to do so, making such\ndisclosure to afford the Company a reasonable opportunity to oppose disclosure, or restrict, limit or condition such\ndisclosure.\n8.\nIntellectual Property.\n(a) Ownership of Confidential or Protected Information, Inventions, and Copyright Works. Upon conception,\nall Confidential or Protected Information, Inventions, and Copyright Works shall become the exclusive property of Fifth\nStreet whether or not patent or copyright applications are filed on the subject matter of the conception.\n(b) Rights in Copyrights. Unless otherwise agreed in writing by the Chief Executive Officer of Fifth Street,\noriginal works of authorship fixed in any tangible form that are or were prepared by Employee (alone or jointly with\nothers) within the scope of Employee's employment with Fifth Street shall be deemed “works made for hire” under\ncopyright laws and shall be owned by Fifth Street. Employee understands that any sale, assignment, license, or release\nof such works can only be made by Fifth Street. Employee will do everything reasonably necessary to enable Fifth Street\nor its nominee to protect its rights in such works, including, without limitation, assigning the copyright and all rights,\nthroughout the world, in and to the work product to Fifth Street and hereby assigns to Fifth Street all such copyright and\nrights as of the date hereof.\n9.\nCompany's Property. Upon termination of Employee's employment with the Company, regardless of\nthe reason (whether voluntary or involuntary), Employee agrees immediately to surrender to Fifth Street all property of\nthe Company in Employee's possession, control, or custody, including, but not limited to, the equipment, computers,\nsoftware, credit cards, books, records, reports, files, manuals, literature, the work product of Employee and all other\nCompany employees and all property containing Confidential or Protected Information (including all originals, summaries,\nportions, and copies).\n7\n10.\nNondisparagement. Employee agrees that, during and at any time after Employee’s employment with\nthe Company, regardless of the reason (whether voluntary or involuntary), Employee will not, directly or indirectly,\nthrough any agent or affiliate, make any comments or criticisms (whether of a professional or personal nature) to any\nindividual or other third party or entity regarding the Company (or the terms of any agreement or arrangement of the\nCompany) or any of its respective affiliates, members, partners or employees, disparaging the business or reputation of\nthe Company or any of its affiliates, members, partners or employees.\n11.\nRemedies. Employee acknowledges and agrees that monetary damages may not be a sufficient\nremedy for any breach of this Agreement, including, without limitation, a breach of the covenants contained in\nParagraphs 2 and 3 or the unauthorized use or disclosure of Confidential or Protected Information, and that the Company\nshall be entitled, without waiving any other rights or remedies, to obtain injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction, without obligation to post any bond. The periods of time during which\nEmployee is in violation of the covenants set forth in this Agreement shall be added to the Investor Restricted Period, the\nCustomer Restricted Period, the Employee Restricted Period and the Non-Competition Period, as applicable.\n12.\nReasonableness. Employee acknowledges and agrees that the restrictions contained in this\nAgreement are reasonable and will not prevent him from finding other employment if his employment with the Company\nends. Employee also acknowledges and agrees that if Employee uses the Company's confidential information, or\ncompetes with the Company in violation of the terms of this Agreement, that he will be causing the Company irreparable\nharm.\n13.\nSeverability; Revision by Court. The provisions of this Agreement shall be deemed severable and the\ninvalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If\nany provision in this Agreement is found by a court of competent jurisdiction to be unenforceable or unreasonable as\nwritten, Employee and Fifth Street hereby specifically and irrevocably authorize and request said court to revise the\nunenforceable or unreasonable provisions in a manner that shall result in the provision being enforceable while remaining\nas similar as legally possible to the purpose and intent of the original.\n14.\nEntire Agreement. This Agreement constitutes the entire agreement and understanding of the parties\nhereto with respect to the obligations addressed herein and supersedes all prior or contemporaneous oral or written\nagreements regarding the subject matter hereof.\n15.\nAmendments; Waivers. Any addition or modification to this Agreement, or waiver of any provision\nhereof, must be in writing and signed by the parties hereto.\n8\n16.\nSuccessors and Assigns. Employee understands and agrees that he cannot assign or otherwise\ntransfer any of his obligations under this Agreement. Employee understands and agrees that Fifth Street may, at its\noption, assign or transfer its rights under this Agreement to another organization or individual. Employee understands\nand agrees that if there is an assignment or transfer of Fifth Street's rights under this Agreement, then this Agreement will\ncontinue to be effective, will continue to bind Employee, and will inure to the benefit of the organization or individual to\nwhom the transfer or assignment is made.\n17.\nChoice of Law. This Agreement shall be governed by, construed, and enforced in accordance with the\nlaws of the State of Connecticut, excluding its conflicts of laws principles.\n18.\nJurisdiction. Any action or proceeding seeking to enforce any provision of, or based on any right\narising out of, this Agreement may be brought against either party only in the courts of the State of Connecticut located in\nFairfield County. Both parties hereby irrevocably consent to the jurisdiction of any such court in any such action or\nproceeding and waive any objection to venue laid in such courts.\n19.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed an original but all of which together shall constitute one and the same instrument. This Agreement may be\nexecuted by facsimile signature.\n20.\nEmployee's Acknowledgment of Voluntary Agreement. Employee acknowledges that he has\ncarefully read this Agreement, that he has had the opportunity to receive advice with respect to this Agreement by\ncounsel of his choice, that he understands its terms and its legal effect, and that Employee has entered into this\nAgreement voluntarily and not in reliance upon any promises or representations made by the Company other than those\nmade in this Agreement itself.\n21.\nNo Change in Status. Nothing contained in the Agreement shall affect or in any way change\nEmployee's at-will employment status.\n22.\nSection 409A.\n(a)\nPotential Six-Month Delay. Notwithstanding any other provisions of the Agreement, any payment that\nmay be provided under this Agreement that the Company reasonably determines is subject to Section 409A(a)(2)(B)(i) of\nthe Code shall not be paid or payment commenced until six (6) months after the date of Employee’s termination of\nemployment (or, if earlier, Employee’s death). On the earliest date on which such payments can be commenced without\nviolating the requirements of Section 409A(a)(2)(B)(i) of the Code, Employee shall be paid, in a single cash lump sum, an\namount equal to the aggregate amount of all payments delayed pursuant to the preceding sentence.\n9\n(b)\nSavings Clause. It is intended that any amounts payable under this Agreement shall either be exempt\nfrom or comply with Section 409A of the Code (including Treasury regulations and other published guidance related\nthereto) so as not to subject Employee to payment of any additional tax, penalty or interest imposed under Section 409A\nof the Code. The provisions of this Agreement shall be construed and interpreted to avoid the imputation of any such\nadditional tax, penalty or interest under Section 409A of the Code yet preserve (to the nearest extent reasonably\npossible) the intended benefit payable to Employee. Notwithstanding the foregoing, the Company makes no\nrepresentation or warranty and shall have no liability to Employee or to any other person if any of the provisions of this\nAgreement are determined to constitute deferred compensation subject to Section 409A, but that do not satisfy an\nexemption from, or the conditions of, that section.\n[Signature page follows]\n10\nBy signing below, the Company and Employee, intending to be legally bound, agree to the terms of this\nAgreement as listed and stated above.\nFSC CT, Inc.\nDated:\nBy:\nName:\nTitle:\nEmployee:\nDated:\n11\nEXHIBIT A\nAs used in this Agreement, “Cause” shall have the meaning ascribed to it in [the Letter Agreement]/[FOR MR.\nOWENS ONLY: the Amended Offer Letter].
480fcdb1b3d02989c11ace2c69bc9ba6.pdf	effective_date jurisdiction party	EX-10 .5 15 a2215704zex-10 _5.htm EX-10 .5\nEXHIBIT B\nCONTROL4 CORPORATION\nCONFIDENTIAL INFORMATION AND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nAs a condition of my relationship with Control4 Corporation, its subsidiaries, affiliates, successors or assigns (together the “Company”), and for other valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, I agree to the following terms under this Confidential Information and Intellectual Property Assignment Agreement (the “Intellectual Property Agreement”):\n1.\nConfidential Information.\n(a)\nCompany Information. I agree at all times during the term of my relationship with the Company whether commenced prior to or upon the date of this Agreement (my “Relationship with the\nCompany”) and thereafter to hold in strictest confidence, and not to use except for the benefit of the Company or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any\nConfidential Information of the Company. I understand that “Confidential Information” means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans,\nproducts, services, suppliers, prices and costs, customer lists and customers (including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my Relationship with the\nCompany), markets, works of original authorship, photographs, negatives, digital images, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information,\nmarketing, finances or other business information disclosed to me by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment. I understand that Confidential Information includes,\nbut is not limited to, information pertaining to any aspect of the Company’s business which is either information not known by actual or potential competitors of the Company or other third parties not under confidentiality obligations to\nthe Company, or is otherwise proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise. I further understand that Confidential Information does not include any of the foregoing items\nwhich has become publicly known and made generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the item or items involved.\n(b)\nOther Employer Information. I agree that I will not, during my Relationship with the Company, improperly use or disclose any proprietary information or trade secrets of any former or\nconcurrent employer or other person or entity and that I will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in\nwriting by such employer, person or entity.\n(c)\nThird Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the\nCompany’s part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out my work\nfor the Company consistent with the Company’s agreement with such third party.\n2.\nIntellectual Property.\n(a)\nAssignment of Intellectual Property. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby\nassign to the Company, or its designee, all my right, title, and interest in and to any original works of authorship, inventions, concepts, improvements or trade secrets, whether or not patentable or registrable under copyright or similar laws,\nwhich I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of my Relationship with the Company (collectively referred to as “Intellectual\nProperty”) and which (i) are developed using the equipment, supplies, facilities or Confidential Information of the Company, (ii) result from or are suggested by work performed by me for the Company, or (iii) relate to the business, or to\nthe actual or demonstrably anticipated research or development of the Company. The Intellectual Property will be the sole and exclusive property of the Company. I further acknowledge that all original works of authorship which are\nmade by me (solely or jointly with others) within the scope of and during the period of my Relationship with the Company and which are protectable by copyright are “works made for hire,” as that term is defined in the United States\nCopyright Act. To the extent any Intellectual Property is not deemed to be work for hire, then I will and hereby do assign all my right, title and interest in such Intellectual Property to the Company, except as provided in Section 2(e).\n(b)\nPatent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s (or its designee’s) expense, in every proper way to secure the Company’s (or its\ndesignee’s) rights in the Intellectual Property and any copyrights, patents or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company or its designee of all pertinent information and\ndata with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which the Company or its designee shall deem necessary in order to apply for and obtain such rights and in order to\nassign and convey to the Company (or its designee), its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Intellectual Property, and any copyrights, patents or other intellectual property rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the termination of my Relationship with the Company. If the\nCompany or its designee is unable because of my mental or physical incapacity or for any other reason to secure my assistance in perfecting the rights transferred in this Intellectual Property Agreement, then I hereby irrevocably designate\nand appoint the Company or its designee and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts\nto further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by me. The designation and appointment of the Company or its designee and its duly authorized\nofficers and agents as my agent and attorney in fact shall be deemed to be coupled with an interest and therefore\n2\nirrevocable. I hereby waive and irrevocably quitclaim to the Company or its designee any and all claims, of any nature whatsoever, which I now or hereafter have for infringement of any and all proprietary rights assigned to the Company\nor such designee.\n(c)\nMaintenance of Records. I agree to keep and maintain adequate and current written records of all Intellectual Property made by me (solely or jointly with others) during the term of my\nRelationship with the Company. The records will be in the form of notes, sketches, drawings, and works of original authorship, photographs, negatives, digital images or any other format that may be specified by the Company. I agree\nnot to remove such records from the Company’s place of business except as expressly permitted by Company policy which may, from time to time, be revised at the sole election of the Company for the purpose of furthering the\nCompany’s business. The records will be available to and remain the sole property of the Company at all times.\n(d)\nIntellectual Property Retained and Licensed. I provide below a list of all original works of authorship, inventions, developments, improvements, and trade secrets which were made by me\nprior to my Relationship with the Company (collectively referred to as “Prior Intellectual Property”), which belong to me (solely or jointly), which relate in any way to the Company’s proposed business, products or research and\ndevelopment, and which are not assigned to the Company hereunder; or, if no such list is attached, I represent that there is no such Prior Intellectual Property. If in the course of my Relationship with the Company, I incorporate into\nCompany property any Prior Intellectual Property owned by me or in which I have an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with the right of\nsublicense) to make, have made, modify, use and sell such Prior Intellectual Property as part of or in connection with such Company property.\nPrior Intellectual Property:\nTitle\nDate\nIdentifying Number\nor Brief Description\n(e)\nException to Assignments. I understand that the provisions of this Intellectual Property Agreement requiring assignment of Intellectual Property to the Company are limited by the\nEmployment Inventions Act, Utah Code Annotated Section 34-39-3, which is attached hereto as Appendix A, and do not apply to any intellectual property that (i) I develop entirely on my own time; and (ii) is not an “employment\ninvention” as such term is defined in the Employment Inventions Act, which I understand to be any invention or part thereof that I conceive, develop, reduce to practice, or create: (x) within the scope of my employment, on the Company’s\ntime, or with the aid, assistance, or use of any of the Company’s property, equipment, facilities, supplies, resources, or intellectual property; or (y) as the result of any work, services, or duties that I perform for the Company that are related\nto the Company’s industry or trade, or that are related to the Company’s current or demonstrably anticipated business, research, or development. Any such intellectual property will be owned entirely by\n3\nme, even if developed by me during the time period in which I am employed by the Company. I will advise the Company promptly in writing of any intellectual property that I believe meet the criteria for exclusion set forth herein and are\nnot otherwise disclosed pursuant to Section 2(d) above.\n(f)\nCompany Property; Return of Company Documents. I acknowledge and agree that I have no expectation of privacy with respect to the Company’s telecommunications, networking or\ninformation processing systems (including, without limitation, stored company files, e-mail messages and voice messages) and that my activity and any files or messages on or using any of those systems may be monitored at any time\nwithout notice. I further agree that any property situated on the Company’s premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel\nat any time with or without notice. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all works of original\nauthorship, photographs, negatives, digital images, devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions\nof any aforementioned items developed by me pursuant to my Relationship with the Company or otherwise belonging to the Company, its successors or assigns. In the event of the termination of my Relationship with the Company, I\nagree to sign and deliver the “Termination Certificate” attached hereto as Appendix B.\n3.\nNotification of New Employer. I hereby grant consent to notification by the Company to my concurrent employer, or in the event that I leave the employ of the Company, my new employer or consulting\nclient about my rights and obligations under this Intellectual Property Agreement.\n4.\nNo Solicitation of Employees, Consultants and Other Parties. I agree that during the period of my Relationship with the Company and for a period of twelve (12) months thereafter I shall not directly or\nindirectly solicit, induce, recruit or encourage or take away any person who shall then be employed by the Company (as an employee or consultant) or who shall have been employed by the Company (as an employee or consultant) within\nthe prior nine (9) month period, on behalf of myself or any other person, firm, corporation, association or other entity, directly or indirectly. Further, during my Relationship with the Company and at any time following termination of my\nRelationship with the Company for any reason, with or without cause, I shall not use any Confidential Information of the Company to attempt to negatively influence any of the Company’s clients, suppliers or customers from purchasing\nCompany products or services or providing goods or services to the Company or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct his or its purchase of products and/or\nservices or his or its provision of products and/or services to any person, firm, corporation, institution or other entity in competition with the business of the Company.\n5.\nRepresentations. I represent that my performance of all the terms of this Intellectual Property Agreement will not breach any agreement to keep in confidence proprietary information acquired by me in\nconfidence or in trust prior to my Relationship with the Company. I have not entered into, and I agree I will not enter into, any oral or written agreement in conflict\n4\nherewith. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Intellectual Property Agreement. I represent that my performance of all terms of this Agreement as an employee of the\nCompany has not breached and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me prior or subsequent to the commencement of my Relationship with the Company. I\nacknowledge and agree that I have attached as Exhibit A hereto all agreements (e.g., non-competition agreements, non-solicitation of customers agreements, non-solicitation of employees agreements, confidentiality agreements,\ninventions agreements, etc.) with a current or former employer, or any other person or entity, that may restrict my ability to accept employment with the Company or my ability as an employee or consultant to recruit or engage customers\nor service providers on behalf of the Company, or otherwise relate to or restrict my ability to perform my duties as an employee of the Company or any obligation I may have to the Company.\n6.\nArbitration and Equitable Relief.\n(a)\nArbitration. Except as provided in Section 6(b) below, I agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this\nIntellectual Property Agreement, shall be settled by arbitration to be held in Salt Lake City, Utah, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in\nsuch dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The Company and I\nshall each pay one-half of the costs and expenses of such arbitration, and each of us shall separately pay our counsel fees and expenses.\n(b)\nEquitable Remedies. Each of the Company and I agree that disputes relating to or arising out of a breach of the covenants contained in this Intellectual Property Agreement would likely\nrequire injunctive relief to maintain the status quo of the parties pending the appointment of an arbitrator pursuant to this Intellectual Property Agreement. The parties hereto also agree that it would be impossible or inadequate to measure\nand calculate the damages from any breach of the covenants contained in this Intellectual Property Agreement prior to resolution of any dispute pursuant to arbitration. Accordingly, if either party claims that the other party has breached\nany covenant of this Intellectual Property Agreement, that party will have available, in addition to any other right or remedy, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened\nbreach and/or to specific performance of any such provision of this Intellectual Property Agreement pending resolution of the dispute through arbitration. The parties further agree that no bond or other security shall be required in\nobtaining such equitable relief and hereby consents to the issuance of such injunction and to the ordering of specific performance. However, upon appointment of an arbitrator, the arbitrator shall review any interim, injunctive relief\ngranted by a court of competent jurisdiction and shall have the discretion, jurisdiction, and authority to continue, expand, or dissolve such relief pending completion of the arbitration of such dispute or controversy. The parties agree that\nany orders issued by the arbitrator may be enforced by any court of competent jurisdiction if necessary to ensure compliance by the parties.\n5\n7.\nGeneral Provisions.\n(a)\nGoverning Law; Consent to Personal Jurisdiction. This Intellectual Property Agreement will be governed by the laws of the State of Utah as they apply to contracts entered into and wholly\nto be performed within such State. I hereby expressly consent to the nonexclusive personal jurisdiction and venue of the state and federal courts located in the federal District of Utah for any lawsuit filed there by either party arising from\nor relating to this Intellectual Property Agreement.\n(b)\nEntire Agreement. This Intellectual Property Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject matter herein and merges all\nprior discussions between us. No modification of or amendment to this Intellectual Property Agreement, nor any waiver of any rights under this Intellectual Property Agreement, will be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Intellectual Property Agreement.\n(c)\nSeverability. If one or more of the provisions in this Intellectual Property Agreement is deemed void by law, then the remaining provisions will continue in full force and effect.\n(d)\nSuccessors and Assigns. This Intellectual Property Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the\nCompany, its successors, and its assigns.\n(e)\nAt Will Relationship. I understand and acknowledge that my Relationship with the Company is and shall continue to be at-will, as defined under applicable law, meaning that either I or the\nCompany may terminate the Relationship at any time for any reason or no reason, without further obligation or liability.\n(f)\nADVICE OF COUNSEL. I ACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE OPPORTUNITY . TO SEEK THE ADVICE OF INDEPENDENT\nLEGAL COUNSEL, AND I HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON\nOF THE DRAFTING OR PREPARATION HEREOF.\n(g)\nNot an IRS “Confidential Transaction”. Notwithstanding anything in this Agreement or in any other written or oral understanding or agreement to which the parties hereto are parties or by\nwhich they are bound, either the Company or I (or either of our representatives, agents or employees) may consult any tax advisor regarding the tax treatment and tax structure of the transaction contemplated by this Agreement and may at\nany time disclose to any person, without limitation of any kind, the tax treatment and tax structure of such transaction and all materials (including opinions or other tax analyses) that are provided relating to such treatment or structure. The\npreceding sentence is intended to satisfy the requirements for the transaction contemplated herein to avoid classification as a “confidential transaction” in accordance with Treasury Regulations Section 1.6011 -4(b)(3) and shall be\ninterpreted consistent with such intent.\n6\nThis authorization is not intended to permit disclosure of any other information relating to any transaction contemplated by the Relationship, including (without limitation) (i) any portion of any materials to the extent not related to the tax\ntreatment or tax structure of any such transaction, (ii) the identities of participants or potential participants in any such transaction, (iii) the existence or status of any negotiations, (iv) any pricing or financial information (except to the\nextent such pricing or financial information is related to the tax treatment or tax structure of any such transaction), or (v) any other term or detail not relevant to the tax treatment or the tax structure of any such transaction.\n(h)\nSurvival. The provisions of this Agreement shall survive the termination of the Relationship and the assignment of this Agreement by the Company to any successor in interest or other\nassignee.\n7\nIN WITNESS WHEREOF, the undersigned has executed this Confidential Information and Intellectual Property Assignment Agreement as of March 27, 2003 .\nBy: /s/ William B. West\nName:\nWilliam B. West\nAddress:\nWitness\nBy: /s/ W. Eric Smith\nName:\nW. Eric Smith\nAddress:	EX-10.5 15 a2215704zex-10_5.htm EX-10.5\nEXHIBIT B\nCONTROL4 CORPORATION\nCONFIDENTIAL INFORMATION AND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\n \nAs a condition of my relationship with Contiol4 Corporation, its subsidiaries, affiliates, successors or assigns (together the "Company"), and for other valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, I agree to the following terms under this Confidential Information and Intellectual Property AssignmentAgreement (the ”Intellectual Propem Aggement"):\n1. Confidential Information.\n(a) C ompany Information. I agree at all times during the term of my relationship with the Company whether commenced prior to or upon the date of this Agreement (my "Relationship with the\nCompany”) and thereafter to hold in strictest confidence, and not to use except for the benefit of the Company or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any\nConfidential Information of the Company. I understand that "Confidential Information" means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans,\nproducts, services, suppliers, prices and costs, customer lists and customers (including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my Relationship with the\nCompany), markets, works of original authorship, photographs, negatives, digital images, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information,\nmarketing, finances or other business information disclosed to me by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment I undersmnd that Confidential Information includes,\nbut is not limited to, information pertaining to any aspect of the Company's business which is either information not known by actual or potential competitors of the Company or other third parties not under confidentiality obligations to\nthe Company, or is otherwise proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise I further understand that Confidential Information does not include any of the foregoing items\nwhich has become publicly known and made generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the item or items involved\n(b) Other Employer Information. I agree that I will not, during my Relationship with the Company, improperly use or disclose any proprietary information or tiade secrets of any former or\nconcurrent employer or other person or entity and that I will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in\nwriting by such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the\nCompany's part to mainmin the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out my work\nfor the Company consistent with the Company' s agreement with such third party.\n2. Intellectual Propeg.\n(a) Assignment of Intellectual Property. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby\nassign to the Company, or its designee, all my right, title, and interest in and to any original works of authorship, inventions, concepts, improvements or tiade secrets, whether or not patentable or registiable under copyright or similar laws,\nwhich I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of my Relationship with the Company (collectively referred to as ”Intellectual\nm") and which (i) are developed using the equipment, supplies, facilities or Confidential Information of the Company, (ii) result from or are suggested by work performed by me for the Company, or (iii) relate to the business, orto\nthe actual or demonstrably anticipated research or development of the Company. The Intellectual Property will be the sole and exclusive property of the Company. I further acknowledge that all original works of authorship which are\nmade by me (solely or jointly with others) within the scope of and during the period of my Relationship with the Company and which are protectable by copyright are ”works made for hire," as that term is defined in the United States\nCopyright Act. To the extent any Intellectual Property is not deemed to be work for hire, then I will and hereby do assign all my right, title and interest in such Intellectual Property to the Company, except as provided in Section 2(e).\n(b) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s (orits designee’s) expense, in every proper way to secure the Company’s (or its\ndesignee's) rights in the Intellectual Property and any copyrights, patents or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company or its designee of all pertinent information and\ndam with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which the Company or its designee shall deem necessary in order to apply for and obtain such rights and in orderto\nassign and convey to the Company (or its designee), its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Intellectual Property, and any copyrights, patents or other intellectual property rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the termination of my Relationship with the Company. If the\nCompany or its designee is unable because of my mental or physical incapacity or for any other reason to secure my assistance in perfecting the rights tiansferred in this Intellectual Property Agreement, then I hereby irrevocably designate\nand appoint the Company or its designee and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts\nto further the prosecution and issuance of letters patent or copyright registiations thereon with the same legal force and effect as if executed by me. The designation and appointment of the Company or its designee and its duly authorized\nofficers and agents as my agent and attorney in fact shall be deemed to be coupled with an interest and therefore\nirrevocable. I hereby waive and irrevocably quitclaim to the Company or its designee any and all claims, of any nature whatsoever, which I now or hereafter have for infringement of any and all proprietary rights assigned to the Company\nor such designee.\n(c) Maintenance of Records. 1 agree to keep and maintain adequate and current written records of all Intellectual Property made by me (solely or jointly with others) during the term of my\nRelationship with the Company. The records will be in the form of notes, sketches, drawings, and works of original authorship, photographs, negatives, digital images or any other format that may be specified by the Company. I agree\nnot to remove such records from the Company’s place of business except as expressly permitted by Company policy which may, from time to time, be revised at the sole election of the Company for the purpose of furthering the\nCompany's business. The records will be available to and remain the sole property of the Company at all times.\n(d) Intellectual Property Retained and Licensed. I provide below a list of all original works of authorship, inventions, developments, improvements, and trade secrets which were made by me\nprior to my Relationship with the Company (collectively referred to as ”Prior Intellectual Propem"), which belong to me (solely or jointly), which relate in any way to the Company's proposed business, products or research and\ndevelopment, and which are not assigned to the Company hereunder: or, if no such list is attached, I represent that there is no such Prior Intellectual Property. If in the course of my Relationship with the Company, I incorporate into\nCompany property any Prior Intellectual Property owned by me or in whichI have an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with the right of\nsublicense) to make, have made, modify, use and sell such Prior Intellectual Property as part of or in connection with such Company property.\nPrior Intellectual Property:\nidenmying Number\nTitle Dale nr Brief Descriptjnn\n(e) Exception to Assignments. I understand that the provisions of this Intellectual Property Agreement requiring assignment of Intellectual Property to the Company are limited by the\nEmployment Inventions Act, Utah Code Annomted Section 34-39-3, which is attached hereto as Agpendix A and do not apply to any intellectual property that (i) I develop entirely on my own time,- an_d (ii) is not an "employment\ninvention" as such term is defined in the Employment Inventions Act, which I understand to be any invention or part thereof that I conceive, develop, reduce to practice, or create: (x) within the scope of my employment, on the Company's\ntime, or with the aid, assistance, or use of any of the Company's property, equipment, facilities, supplies, resources, or intellectual property; or (y) as the result of any work, services, or duties that I perform for the Company that are related\nto the Company’s industry or trade, or that are related to the Company's current or demonstrably anticipated business, research, or development Any such intellectual property will be owned entirely by\nme, even if developed by me during the time period in which I am employed by the Company. I will advise the Company promptly in writing of any intellectual property that I believe meet the criteria for exclusion set forth herein and are\nnot otherwise disclosed pursuant to Section 2(d) above.\n(f) Company Property; Return of Company Documents. I acknowledge and agree that I have no expectation of privacy with respect to the Company’s telecommunications, networking or\ninformation processing systems (including, without limimtion, stored company files, e-mail messages and voice messages) and that my activity and any files or messages on or using any of those systems may be monitored at any time\nwithout notice. I further agree that any property situated on the Company’s premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel\nat any time with or without notice. I agree that, at the time of leaving the employ of the Company, I will deliverto the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all works of original\nauthorship, photographs, negatives, digiml images, devices, records, dam, notes, reports, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions\nof any aforementioned items developed by me pursuant to my Relationship with the Company or otherwise belonging to the Company, its successors or assigns. In the event of the termination of my Relationship with the Company, I\nagree to sign and deliver the "Termination Certificate" atmhed hereto as Appendix B.\n3. Notification of New Employer. I hereby grant consent to notification by the Company to my concurrent employer, or in the event thatI leave the employ of the Company, my new employer or consulting\nclient about my rights and obligations under this Intellectual Property Agreement.\n4. No Solicimtion of Employees Consulmnts and Other Parties. 1 agree that during the period of my Relationship with the Company and for a period of twelve (12) months thereafterI shall not directly or\nindirectly solicit, induce, recruit or encourage or take away any person who shall then be employed by the Company (as an employee or consultant) or who shall have been employed by the Company (as an employee or consulmnt) within\nthe prior nine (9) month period, on behalf of myself or any other person, firm, corporation, association or other entity, directly or indirectly. Further, during my Relationship with the Company and at any time following termination of my\nRelationship with the Company for any reason, with or without cause, I shall not use any Confidential Information of the Company to attempt to negatively influence any of the Company's clients, suppliers or customers from purchasing\nCompany products or services or providing goods or services to the Company or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct his or its purchase of products and/or\nservices or his or its provision of products andJor services to any person, firm, corporation, institution or other entity in competition with the business of the Company.\n5. Representations. I represent that my performance of all the terms of this Intellectual Property Agreement will not breach any agreement to keep in confidence proprietary information acquired by me in\nconfidence or in trust prior to my Relationship with the Company. I have not entered into, and I agree I will not enter into, any oral or written agreement in conflict\nherewith. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Intellectual Property Agreement. I represent that my performance of all terms of this Agreement as an employee of the\nCompany has not breached and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me prior or subsequent to the commencement of my Relationship with the Company. I\nacknowledge and agree that I have attached as Exhibit A hereto all agreements (e.g., non-competition agreements, non- solicitation of customers agreements, non-solicimtion of employees agreements, confidentiality agreements,\ninventions agreements, etc.) with a current or former employer, or any other person or entity, that may restrict my ability to accept employment with the Company or my ability as an employee or consultant to recruit or engage customers\nor service providers on behalf of the Company, or otherwise relate to or restrict my ability to perform my duties as an employee of the Company or any obligationI may have to the Company.\n6. Arbitration and Egg imble Relief.\n(a) Arbitration. Except as provided in Section 6(b) below, I agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this\nIntellectual Property Agreement, shall be settled by arbitration to be held in Salt Lake City, Umh, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in\nsuch dispute or controversy The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator s decision in any court having jurisdiction The Company and I\nshall each pay one-half of the costs and expenses of such arbitration, and each of us shall separately pay our counsel fees and expenses.\n(b) Equitable Remedies. Each of the Company and I agree that disputes relating to or arising out of a breach of the covenants contained in this Intellectual Property Agreement would likely\nrequire injunctive relief to mainmin the status quo of the parties pending the appointment of an arbitrator pursuant to this Intellectual Property Agreement. The parties hereto also agree that it would be impossible or inadequate to measure\nand calculate the damages from any breach of the covenants conmined in this Intellectual Property Agreement prior to resolution of any dispute pursuant to arbitration. Accordingly, if either party claims that the other party has breached\nany covenant of this Intellectual Property Agreement, that party will have available, in addition to any other right or remedy, the right to obmin an injunction from a court of competent jurisdiction restraining such breach or threatened\nbreach and/or to specific performance of any such provision of this Intellectual Property Agreement pending resolution of the dispute through arbitration. The parties further agree that no bond or other security shall be required in\nobtaining such equitable relief and hereby consents to the issuance of such injunction and to the ordering of specific performance. However, upon appointment of an arbitrator, the arbitrator shall review any interim, injunctive relief\ngranted by a court of competent jurisdiction and shall have the discretion, jurisdiction, and authority to continue, expand, or dissolve such relief pending completion of the arbitration of such dispute or controversy. The parties agree that\nany orders issued by the arbitrator may be enforced by any court of competent jurisdiction if necessary to ensure compliance by the parties.\n7. G eneral Provisions.\n(a) G overning Law; Consent to Personal Jurisdiction This Intellectual Property Agreement will be governed by the laws of the State of Utah as they apply to contracts entered into and wholly\nto be performed within such Smte. I hereby expressly consent to the nonexclusive personal jurisdiction and venue of the state and federal courts located in the federal District of Utah for any lawsuit filed there by either party arising from\nor relating to this Intellectual Property Agreement.\n(b) Entire Agreement. This Intellectual Property Agreement sets forth the entire agreement and undersmnding between the Company and me relating to the subject matter herein and merges all\nprior discussions between us. No modification of or amendment to this Intellectual Property Agreement, nor any waiver of any rights under this Intellectual Property Agreement, will be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Intellectual Property Agreement.\nto) Severability. If one or more of the provisions in this Intellectual Property Agreement is deemed void by law, then the remaining provisions will continue in full force and effect.\n(d) Successors and Assigns. This Intellectual Property Agreement will be binding upon my heirs, executors, administrators and other legal represenmtives and will be for the benefit of the\nCompany, its successors, and its assigns.\n(e) At Will Relationship. I understand and acknowledge that my Relationship with the Company is and shall continue to be at-will, as defined under applicable law, meaning that either I or the\nCompany may terminate the Relationship at any time for any reason or no reason, without further obligation or liability.\n(f) ADVICE OF COUNSEL. IACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE OPPORTUNITY. TO SEEK THE ADVICE OF INDEPENDENT\nLEGAL COUNSEL, AND I HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON\nOF THE DRAFTING OR PREPARATION HEREOF.\n(g) Not an IRS " C onfidential Transaction" . Notwithstanding anything in this Agreement or in any other written or oral understanding or agreement to which the parties hereto are parties or by\nwhich they are bound, either the Company or I (or either of our represenmtives, agents or employees) may consult any tax advisor regarding the m treatment and tax structure of the transaction contemplated by this Agreement and may at\nany time disclose to any person, without limitation of any kind, the m treatment and tax structure of such transaction and all materials (including opinions or othertax analyses) that are provided relating to such treatment or structure. The\npreceding sentence is intended to satisfy the requirements for the transaction contemplated herein to avoid classification as a "confidential transaction" in accordance with Treasury Regulations Section 1.6011-4tb)(3) and shall be\ninterpreted consistent with such intent.\nThis authorization is not intended to permit disclosure of any other information relating to any transaction contemplated by the Relationship, including (without limitation) ti) any portion of any materials to the extent not related to the m\ntreatment ortax structure of any such transaction, (ii) the identities of participants or potential participants in any such transaction, (iii) the existence or status of any negotiations, (iv) any pricing or financial information (except to the\nextent such pricing or financial information is related to the tax treatment or mx structure of any such transaction), or (v) any other term or detail not relevant to the tax treatment or the tax structure of any such transaction.\n(h) Survival. The provisions of this Agreement shall survive the termination of the Relationship and the assignment of this Agreement by the Company to any successor in interest or other\nassignee.\nIN WITNESS WHEREOF, the undersigned has executed this Confidential Information and Intellectual Property Assignment Agreement as of March 27, 2003.\nBy: /5/ William B. West\nName: William B. West\nA ddress:\nWitness\nBy: /s/W. Eric Smith\nName: W. Eric Smith\nAddress:	EX-10.5 15 a2215704zex-10 5.htm EX-10.5\nEXHIBIT B\nCONTROL4 CORPORATION\nCONFIDENTIAL INFORMATION AND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nAs a condition of my relationship with Control4 Corporation, its subsidiaries, affiliates successors or assigns (together the "Company"), and for other valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, I agree to the following terms under this Confidential Information and Intellectual Property Assignment Agreement (the "Intellectual Property Agreement"):\n1.\nConfidential Information.\n(a)\nCompany Information. I agree at all times during the term of my relationship with the Company whether commenced prior or upon the date of this greement (my "Relationship with the\nCompany") and thereafter to hold in strictest confidence, and not to use except for the benefit of the Company or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any\nConfidential Information of the Company. I understand that "Confidential Information" means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans,\nproducts, services, suppliers, prices and costs, customer lists and customers (including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my Relationship with the\nCompany), markets, works of original authorship, photographs, negatives, digital images, software, developments, inventions, processes, formulas, technology, designs drawings, engineering, hardware configuration information,\nmarketing, finances or other business information disclosed to me by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment. I understand that Confidential Information includes,\nbut is not limited to, information pertaining to any aspect of the Company's business which is either information not known by actual or potential competitors of the Company or other third parties not under confidentiality obligations to\nthe\nCompany, or is otherwise proprietary information of the Company or its customers or suppliers whether of a technical nature or otherwise. I further understand that Confidential Information does not include any of the foregoing items\nwhich has become publicly known and made generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the item or items involved.\n(b)\nOther Employer Information. I agree that I will not, during my Relationship with the Company, improperly use or disclose any proprietary information or trade secrets of any former\nor\nconcurrent employer or other person or entity and that I will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented\nto\nin\nwriting by such employer, person or entity.\n(c)\nThird Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the\nCompany's part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, fir or corporation or to use it except as necessary in carrying out my work\nfor the Company consistent with the Company's agreement with such third party.\n2.\nIntellectual Property\n(a)\nAssignment of Intellectual Property. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby\nassign to the Company, or its designee, all my right title, and interest in and to any original works of authorship, inventions, concepts, improvements or trade secrets, whether or not patentable or registrable under copyright or similar laws,\nwhich I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of my Relationship with the Company (collectively referred to as "Intellectual\nProperty") and which (i) are developed using the equipment, supplies, facilities or Confidential Information of the Company, (ii) result from or are suggested by work performed by me for the Company, or (iii) relate to the business, or to\nthe actual or demonstrably anticipated research or development of the Company. The Intellectual Property will be the sole and exclusive property of the Company. I further acknowledge that all original works of authorship which are\nmade by me (solely or jointly with others) within the scope of and during the period of my Relationship with the Company and which are protectable by copyright are "works made for hire," as that term is defined in the United States\nCopyright Act. To the extent any Intellectual Property is not deemed to be work for hire, then I will and hereby do assign all my right, title and interest in such Intellectual Property to the Company, except as provided in Section 2(e).\n(b)\nPatent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company's (or its designee's) expense, in every proper way to secure the Company's (or\nits\ndesignee's) rights in the Intellectual Property and any copyrights, patents or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company or its designee of all pertinent information and\ndata with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which the Company or its designee shall deem necessary in order to apply for and obtain such rights and in order\nto\nassign and convey to the Company (or its designee), its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Intellectual Property, and any copyrights, patents or other intellectual property rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the termination of my Relationship with the Company. If the\nCompany or its designee is unable because of my mental or physical incapacity or for any other reason to secure my assistance in perfecting the rights transferred in this Intellectual Property Agreement, then hereby irrevocably designate\nand appoint the Company or its designee and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts\nto\nfurther the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by me. The designation and appointment of the Company or its designee and its duly authorized\nofficers and agents as my agent and attomey in fact shall be deemed to be coupled with an interest and therefore\n2\nirrevocable. I hereby waive and irrevocably quitclaim to the Company or its designee any and all claims, of any nature whatsoever, which I now or hereafter have for infringement of any and all proprietary rights assigned to the Company\nor such designee\n(c)\nMaintenance of Records. I agree to keep and maintain adequate and current written records of all Intellectual Property made by me (solely or jointly with others) during the term of my\nRelationship with the Company. The records will be in the form of notes, sketches, drawings, and works of original authorship, photographs, negatives digital images or any other format that may be specified by the Company. I agree\nnot to remove such records from the Company's place of business except as expressly permitted by Company policy which may, from time to time, be revised at the sole election of the Company for the purpose of furthering the\nCompany's business. The records will be available to and remain the sole property of the Company at all times.\n(d)\nIntellectual Property Retained and Licensed. I provide below a list of all original works of authorship, inventions, developments, improvements, and trade secrets which were made\nby\nme\nprior to my Relationship with the Company (collectively referred to as "Prior Intellectual Property") which belong to me (solely or jointly), which relate in any way to the Company's proposed business, products or research\nand\ndevelopment, and which are not assigned to the Company hereunder; or, if no such list is attached, I represent that there is no such Prior Intellectual Property. If in the course of my Relationship with the Company, I incorporate into\nCompany property any Prior Intellectual Property owned by me or in which I have an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free irrevocable, perpetual, worldwide license (with the right\nof\nsublicense) to make, have made, modify, use and sell such Prior Intellectual Property as part of or in connection with such Company property.\nPrior Intellectual Property:\nIdentifying Number\nTitle\nBrief Description\n(e)\nException to Assignments. I understand that the provisions of this Intellectual Property Agreement requiring assignment of Intellectual Property to the Company are limited\nby\nthe\nEmployment Inventions Act, Utah Code Annotated Section 34-39-3, which is attached hereto as Appendix A and do not apply to any intellectual property that (i) I develop entirely on my own time; and (ii) is not "employment\ninvention" as such term is defined in the Employment Inventions Act, which I understand to be any invention or part thereof that I conceive develop, reduce to practice, or create (x) within the scope of my employment, on the Company's\ntime, or with the aid, assistance, or use of any of the Company's property, equipment, facilities, supplies, resources, or intellectual property; or (y) as the result of any work, services, or duties that I perform for the Company that are related\nto the Company's industry or trade, or that are related to the Company's current or demonstrably anticipated business, research, or development Any such intellectual property will be owned entirely by\n3\nme,\neven if developed by me during the time period in which I am employed by the Company. I will advise the Company promptly in writing of any intellectual property that I believe meet the criteria for exclusion set forth herein and are\nnot otherwise disclosed pursuant to Section 2(d) above.\n(f)\nCompany Property; Return of Company Documents. I acknowledge and agree that I have no expectation of privacy with respect to the Company's telecommunications, networking or\ninformation processing systems (including, without limitation, stored company files, e-mail messages and voice messages) and that my activity and any files or messages on or using any of those systems may be monitored at any time\nwithout notice. I further agree that any property situated on the Company's premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel\nat\nany time with or without notice. I agree that at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all works of original\nauthorship, photographs, negatives digital images, devices, records data, notes, reports, proposals lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions\nof\nany aforementioned items developed by me pursuant to my Relationship with the Company or otherwise belonging to the Company, its successors or assigns. In the event of the termination of my Relationship with the Company,\nI\nagree to sign and deliver the "Termination Certificate" attached hereto as Appendix B.\n3.\nNotification of New Employer I hereby grant consent to notification by the Company to my concurrent employer, or in the event that I leave the employ of the Company, my new employer or consulting\nclient about my rights and obligations under this Intellectual Property Agreement.\n4.\nNO Solicitation of Employees, Consultants and Other Parties I agree that during the period of my Relationship with the Company and for a period of twelve (12) months thereafter I shall not directly or\nindirectly solicit, induce, recruit or encourage or take away any person who shall then be employed by the Company (as an employee or consultant) or who shall have been employed by the Company (as an employee or consultant) within\nthe prior nine (9) month period, on behalf of myself or any other person, firm, corporation, association or other entity, directly or indirectly. Further, during my Relationship with the Company and at any time following termination of my\nRelationship with the Company for any reason, with or without cause, I shall not use any Confidential Information of the Company to attempt to negatively influence any of the Company's clients, suppliers or customers from purchasing\nCompany products or services or providing goods or services to the Company or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct his or its purchase of products and/or\nservices or his or its provision of products and/or services to any person, firm, corporation, institution or other entity in competition with the business of the Company.\n5.\nRepresentations I represent that my performance of all the terms of this Intellectual Property Agreement will not breach any agreement to keep in confidence proprietary information acquired by\nme\nin\nconfidence or in trust prior to my Relationship with the Company. I have not entered into, and I agree I will not enter into, any oral or written agreement in conflict\n4\nherewith. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Intellectual Property Agreement. I represent that my performance of all terms of this A greement as an employee of the\nCompany has no breached and will no breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me prior or subsequent to the commencement of my Relationship with the Company. I\nacknowledge and agree that I have attached as Exhibit A hereto all agreements (e.g., non-competition agreements, non-solicitation of customers agreements, -solicitation of employees agreements, confidentiality agreements,\ninventions agreements, etc.) with a current or former employer, or any other person or entity, that may restrict my ability to accept employment with the Company or my ability as an employee or consultant to recruit or engage customers\nor service providers on behalf of the Company, or otherwise relate to or restrict my ability to perform my duties as an employee of the Company or any obligation I may have to the Company.\n6.\nArbitration and Equitable Relief\n(a)\nArbitration. Except as provided in Section 6(b) below, I agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this\nIntellectual Property Agreement, shall be settled by arbitration to be held in Salt Lake City, Utah, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in\nsuch dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court having jurisdiction. The Company and I\nshall each pay one-half of the costs and expenses of such arbitration, and each of us shall separately pay our counsel fees and expenses.\n(b)\nEquitable Remedies. Each of the Company and I agree that disputes relating to or arising out of a breach of the covenants contained in this Intellectual Property Agreement would likely\nrequire injunctive relief to maintain the status quo of the parties pending the appointment of an arbitrator pursuant to this Intellectual Property Agreement. The parties hereto also agree that it would be impossible or inadequate to measure\nand calculate the damages from any breach of the covenants contained in this Intellectual Property Agreement prior to resolution of any dispute pursuant to arbitration. Accordingly, if either party claims that the other party has breached\nany covenant of this Intellectual Property Agreement, that party will have available, in addition to any other right or remedy, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened\nbreach\nand/or to specific performance of any such provision of this Intellectual Property Agreement pending resolution of the dispute through arbitration. The parties further agree that no bond or other security shall be required in\nobtaining such equitable relief and hereby consents to the issuance of such injunction and to the ordering of specific performance. However, upon appointment of an arbitrator, the arbitrator shall review any interim, injunctive relief\ngranted by court of competent jurisdiction and shall have the discretion, jurisdiction, and authority to continue, expand, or dissolve such relief pending completion of the arbitration of such dispute or controversy. The parties agree that\nany orders issued by the arbitrator may be enforced by any court of competent jurisdiction if necessary to ensure compliance by the parties.\n5\n7.\nGeneral Provisions\n(a)\nGoverning Law; Consent to Personal Jurisdiction. This Intellectual Property Agreement will be governed by the laws of the State of Utah as they apply to contracts entered into and wholly\nto be performed within such State. I hereby expressly consent to the nonexclusive personal jurisdiction and venue of the state and federal courts located in the federal District of Utah for any lawsuit filed there by either party arising\nfrom\nor relating to this Intellectual Property Agreement.\n(b)\nEntire Agreement. This Intellectual Property Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject matter herein and merges\nall\nprior discussions between us. No modification of or amendment to this Intellectual Property Agreement, nor any waiver of any rights under this Intellectual Property Agreement, wil be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Intellectual Property Agreement.\n(c)\nSeverability. If one or more of the provisions in this Intellectual Property Agreement is deemed void by law, then the remaining provisions will continue in full force and effect.\n(d)\nSuccessors and Assigns. This Intellectual Property Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit\nof\nthe\nCompany its successors, and its assigns.\n(e)\nAt Will Relationship. I understand and acknowledge that my Relationship with the Company is and shall continue to be at-will, as defined under applicable law, meaning that either I or the\nCompany may terminate the Relationship at any time for any reason or no reason, without further obligation or liability.\n(f)\nADVICE OF COUNSEL. IACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, HAVE HAD THE OPPORTUNITY. TO SEEK THE ADVICE OF INDEPENDENT\nLEGAL COUNSEL AND HAVE READ UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON\nOF THE DRAFTING OR PREPARATION HEREOF.\n(g)\nNot an IRS Confidential Transaction". Notwithstanding anything in this Agreement or in any other written or oral understanding or agreement to which the parties hereto are parties or by\nwhich they are bound, either the Company or (or either of our representatives, agents or employees) may consult any tax advisor regarding the tax treatment and tax structure of the transaction contemplated by this Agreement and may\nat\nany time disclose to any person, without limitation of any kind, the tax treatment and tax structure of such transaction and all materials (including opinions or other tax analyses) that are provided relating to such treatment or structure. The\npreceding sentence is intended to satisfy the requirements for the transaction contemplated herein to avoid classification as a "confidential transaction" in accordance with Treasury Regulations Section 1.6011-4(b)(3) and shall be\ninterpreted consistent with such intent.\n6\nThis authorization is not intended to permit disclosure of any other information relating to any transaction contemplated by the Relationship, including (without limitation) (i) any portion of any materials to the extent not related to the tax\ntreatment or tax structure of any such transaction, (ii) the identities of participants or potential participants in any such transaction, (iii) the existence or status of any negotiations, (iv) any pricing or financial information (except to the\nextent such pricing or financial information is related to the tax treatment or tax structure of any such transaction), or (v) any other term or detail not relevant to the tax treatment or the tax structure of any such transaction.\n(h)\nSurvival. The provisions of this Agreement shall survive the termination of the Relationship and the assignment of this Agreement by the Company to any successor in interest or\nother\nassignee.\n7\nIN WITNESS WHEREOF, the undersigned has executed this Confidential Information and Intellectual Property Assignment A greement as of March 27, 2003.\nBy:\n/s/ William B. West\nName:\nWilliam B. West\nAddress:\nWitness\nBy:\n/s/ W. Eric Smith\nName:\nW. Eric Smith\nAddress:	EX-10 .5 15 a2215704zex-10 _5.htm EX-10 .5\nEXHIBIT B\nCONTROL4 CORPORATION\nCONFIDENTIAL INFORMATION AND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nAs a condition of my relationship with Control4 Corporation, its subsidiaries, affiliates, successors or assigns (together the “Company”), and for other valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, I agree to the following terms under this Confidential Information and Intellectual Property Assignment Agreement (the “Intellectual Property Agreement”):\n1.\nConfidential Information.\n(a)\nCompany Information. I agree at all times during the term of my relationship with the Company whether commenced prior to or upon the date of this Agreement (my “Relationship with the\nCompany”) and thereafter to hold in strictest confidence, and not to use except for the benefit of the Company or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any\nConfidential Information of the Company. I understand that “Confidential Information” means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans,\nproducts, services, suppliers, prices and costs, customer lists and customers (including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my Relationship with the\nCompany), markets, works of original authorship, photographs, negatives, digital images, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information,\nmarketing, finances or other business information disclosed to me by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment. I understand that Confidential Information includes,\nbut is not limited to, information pertaining to any aspect of the Company’s business which is either information not known by actual or potential competitors of the Company or other third parties not under confidentiality obligations to\nthe Company, or is otherwise proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise. I further understand that Confidential Information does not include any of the foregoing items\nwhich has become publicly known and made generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the item or items involved.\n(b)\nOther Employer Information. I agree that I will not, during my Relationship with the Company, improperly use or disclose any proprietary information or trade secrets of any former or\nconcurrent employer or other person or entity and that I will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in\nwriting by such employer, person or entity.\n(c)\nThird Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the\nCompany’s part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out my work\nfor the Company consistent with the Company’s agreement with such third party.\n2.\nIntellectual Property.\n(a)\nAssignment of Intellectual Property. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby\nassign to the Company, or its designee, all my right, title, and interest in and to any original works of authorship, inventions, concepts, improvements or trade secrets, whether or not patentable or registrable under copyright or similar laws,\nwhich I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of my Relationship with the Company (collectively referred to as “Intellectual\nProperty”) and which (i) are developed using the equipment, supplies, facilities or Confidential Information of the Company, (ii) result from or are suggested by work performed by me for the Company, or (iii) relate to the business, or to\nthe actual or demonstrably anticipated research or development of the Company. The Intellectual Property will be the sole and exclusive property of the Company. I further acknowledge that all original works of authorship which are\nmade by me (solely or jointly with others) within the scope of and during the period of my Relationship with the Company and which are protectable by copyright are “works made for hire,” as that term is defined in the United States\nCopyright Act. To the extent any Intellectual Property is not deemed to be work for hire, then I will and hereby do assign all my right, title and interest in such Intellectual Property to the Company, except as provided in Section 2(e).\n(b)\nPatent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s (or its designee’s) expense, in every proper way to secure the Company’s (or its\ndesignee’s) rights in the Intellectual Property and any copyrights, patents or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company or its designee of all pertinent information and\ndata with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which the Company or its designee shall deem necessary in order to apply for and obtain such rights and in order to\nassign and convey to the Company (or its designee), its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Intellectual Property, and any copyrights, patents or other intellectual property rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the termination of my Relationship with the Company. If the\nCompany or its designee is unable because of my mental or physical incapacity or for any other reason to secure my assistance in perfecting the rights transferred in this Intellectual Property Agreement, then I hereby irrevocably designate\nand appoint the Company or its designee and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts\nto further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by me. The designation and appointment of the Company or its designee and its duly authorized\nofficers and agents as my agent and attorney in fact shall be deemed to be coupled with an interest and therefore\n2\nirrevocable. I hereby waive and irrevocably quitclaim to the Company or its designee any and all claims, of any nature whatsoever, which I now or hereafter have for infringement of any and all proprietary rights assigned to the Company\nor such designee.\n(c)\nMaintenance of Records. I agree to keep and maintain adequate and current written records of all Intellectual Property made by me (solely or jointly with others) during the term of my\nRelationship with the Company. The records will be in the form of notes, sketches, drawings, and works of original authorship, photographs, negatives, digital images or any other format that may be specified by the Company. I agree\nnot to remove such records from the Company’s place of business except as expressly permitted by Company policy which may, from time to time, be revised at the sole election of the Company for the purpose of furthering the\nCompany’s business. The records will be available to and remain the sole property of the Company at all times.\n(d)\nIntellectual Property Retained and Licensed. I provide below a list of all original works of authorship, inventions, developments, improvements, and trade secrets which were made by me\nprior to my Relationship with the Company (collectively referred to as “Prior Intellectual Property”), which belong to me (solely or jointly), which relate in any way to the Company’s proposed business, products or research and\ndevelopment, and which are not assigned to the Company hereunder; or, if no such list is attached, I represent that there is no such Prior Intellectual Property. If in the course of my Relationship with the Company, I incorporate into\nCompany property any Prior Intellectual Property owned by me or in which I have an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with the right of\nsublicense) to make, have made, modify, use and sell such Prior Intellectual Property as part of or in connection with such Company property.\nPrior Intellectual Property:\nTitle\nDate\nIdentifying Number\nor Brief Description\n(e)\nException to Assignments. I understand that the provisions of this Intellectual Property Agreement requiring assignment of Intellectual Property to the Company are limited by the\nEmployment Inventions Act, Utah Code Annotated Section 34-39-3, which is attached hereto as Appendix A, and do not apply to any intellectual property that (i) I develop entirely on my own time; and (ii) is not an “employment\ninvention” as such term is defined in the Employment Inventions Act, which I understand to be any invention or part thereof that I conceive, develop, reduce to practice, or create: (x) within the scope of my employment, on the Company’s\ntime, or with the aid, assistance, or use of any of the Company’s property, equipment, facilities, supplies, resources, or intellectual property; or (y) as the result of any work, services, or duties that I perform for the Company that are related\nto the Company’s industry or trade, or that are related to the Company’s current or demonstrably anticipated business, research, or development. Any such intellectual property will be owned entirely by\n3\nme, even if developed by me during the time period in which I am employed by the Company. I will advise the Company promptly in writing of any intellectual property that I believe meet the criteria for exclusion set forth herein and are\nnot otherwise disclosed pursuant to Section 2(d) above.\n(f)\nCompany Property; Return of Company Documents. I acknowledge and agree that I have no expectation of privacy with respect to the Company’s telecommunications, networking or\ninformation processing systems (including, without limitation, stored company files, e-mail messages and voice messages) and that my activity and any files or messages on or using any of those systems may be monitored at any time\nwithout notice. I further agree that any property situated on the Company’s premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel\nat any time with or without notice. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all works of original\nauthorship, photographs, negatives, digital images, devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions\nof any aforementioned items developed by me pursuant to my Relationship with the Company or otherwise belonging to the Company, its successors or assigns. In the event of the termination of my Relationship with the Company, I\nagree to sign and deliver the “Termination Certificate” attached hereto as Appendix B.\n3.\nNotification of New Employer. I hereby grant consent to notification by the Company to my concurrent employer, or in the event that I leave the employ of the Company, my new employer or consulting\nclient about my rights and obligations under this Intellectual Property Agreement.\n4.\nNo Solicitation of Employees, Consultants and Other Parties. I agree that during the period of my Relationship with the Company and for a period of twelve (12) months thereafter I shall not directly or\nindirectly solicit, induce, recruit or encourage or take away any person who shall then be employed by the Company (as an employee or consultant) or who shall have been employed by the Company (as an employee or consultant) within\nthe prior nine (9) month period, on behalf of myself or any other person, firm, corporation, association or other entity, directly or indirectly. Further, during my Relationship with the Company and at any time following termination of my\nRelationship with the Company for any reason, with or without cause, I shall not use any Confidential Information of the Company to attempt to negatively influence any of the Company’s clients, suppliers or customers from purchasing\nCompany products or services or providing goods or services to the Company or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct his or its purchase of products and/or\nservices or his or its provision of products and/or services to any person, firm, corporation, institution or other entity in competition with the business of the Company.\n5.\nRepresentations. I represent that my performance of all the terms of this Intellectual Property Agreement will not breach any agreement to keep in confidence proprietary information acquired by me in\nconfidence or in trust prior to my Relationship with the Company. I have not entered into, and I agree I will not enter into, any oral or written agreement in conflict\n4\nherewith. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Intellectual Property Agreement. I represent that my performance of all terms of this Agreement as an employee of the\nCompany has not breached and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me prior or subsequent to the commencement of my Relationship with the Company. I\nacknowledge and agree that I have attached as Exhibit A hereto all agreements (e.g., non-competition agreements, non-solicitation of customers agreements, non-solicitation of employees agreements, confidentiality agreements,\ninventions agreements, etc.) with a current or former employer, or any other person or entity, that may restrict my ability to accept employment with the Company or my ability as an employee or consultant to recruit or engage customers\nor service providers on behalf of the Company, or otherwise relate to or restrict my ability to perform my duties as an employee of the Company or any obligation I may have to the Company.\n6.\nArbitration and Equitable Relief.\n(a)\nArbitration. Except as provided in Section 6(b) below, I agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this\nIntellectual Property Agreement, shall be settled by arbitration to be held in Salt Lake City, Utah, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in\nsuch dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The Company and I\nshall each pay one-half of the costs and expenses of such arbitration, and each of us shall separately pay our counsel fees and expenses.\n(b)\nEquitable Remedies. Each of the Company and I agree that disputes relating to or arising out of a breach of the covenants contained in this Intellectual Property Agreement would likely\nrequire injunctive relief to maintain the status quo of the parties pending the appointment of an arbitrator pursuant to this Intellectual Property Agreement. The parties hereto also agree that it would be impossible or inadequate to measure\nand calculate the damages from any breach of the covenants contained in this Intellectual Property Agreement prior to resolution of any dispute pursuant to arbitration. Accordingly, if either party claims that the other party has breached\nany covenant of this Intellectual Property Agreement, that party will have available, in addition to any other right or remedy, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened\nbreach and/or to specific performance of any such provision of this Intellectual Property Agreement pending resolution of the dispute through arbitration. The parties further agree that no bond or other security shall be required in\nobtaining such equitable relief and hereby consents to the issuance of such injunction and to the ordering of specific performance. However, upon appointment of an arbitrator, the arbitrator shall review any interim, injunctive relief\ngranted by a court of competent jurisdiction and shall have the discretion, jurisdiction, and authority to continue, expand, or dissolve such relief pending completion of the arbitration of such dispute or controversy. The parties agree that\nany orders issued by the arbitrator may be enforced by any court of competent jurisdiction if necessary to ensure compliance by the parties.\n5\n7.\nGeneral Provisions.\n(a)\nGoverning Law; Consent to Personal Jurisdiction. This Intellectual Property Agreement will be governed by the laws of the State of Utah as they apply to contracts entered into and wholly\nto be performed within such State. I hereby expressly consent to the nonexclusive personal jurisdiction and venue of the state and federal courts located in the federal District of Utah for any lawsuit filed there by either party arising from\nor relating to this Intellectual Property Agreement.\n(b)\nEntire Agreement. This Intellectual Property Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject matter herein and merges all\nprior discussions between us. No modification of or amendment to this Intellectual Property Agreement, nor any waiver of any rights under this Intellectual Property Agreement, will be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Intellectual Property Agreement.\n(c)\nSeverability. If one or more of the provisions in this Intellectual Property Agreement is deemed void by law, then the remaining provisions will continue in full force and effect.\n(d)\nSuccessors and Assigns. This Intellectual Property Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the\nCompany, its successors, and its assigns.\n(e)\nAt Will Relationship. I understand and acknowledge that my Relationship with the Company is and shall continue to be at-will, as defined under applicable law, meaning that either I or the\nCompany may terminate the Relationship at any time for any reason or no reason, without further obligation or liability.\n(f)\nADVICE OF COUNSEL. I ACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE OPPORTUNITY . TO SEEK THE ADVICE OF INDEPENDENT\nLEGAL COUNSEL, AND I HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON\nOF THE DRAFTING OR PREPARATION HEREOF.\n(g)\nNot an IRS “Confidential Transaction”. Notwithstanding anything in this Agreement or in any other written or oral understanding or agreement to which the parties hereto are parties or by\nwhich they are bound, either the Company or I (or either of our representatives, agents or employees) may consult any tax advisor regarding the tax treatment and tax structure of the transaction contemplated by this Agreement and may at\nany time disclose to any person, without limitation of any kind, the tax treatment and tax structure of such transaction and all materials (including opinions or other tax analyses) that are provided relating to such treatment or structure. The\npreceding sentence is intended to satisfy the requirements for the transaction contemplated herein to avoid classification as a “confidential transaction” in accordance with Treasury Regulations Section 1.6011 -4(b)(3) and shall be\ninterpreted consistent with such intent.\n6\nThis authorization is not intended to permit disclosure of any other information relating to any transaction contemplated by the Relationship, including (without limitation) (i) any portion of any materials to the extent not related to the tax\ntreatment or tax structure of any such transaction, (ii) the identities of participants or potential participants in any such transaction, (iii) the existence or status of any negotiations, (iv) any pricing or financial information (except to the\nextent such pricing or financial information is related to the tax treatment or tax structure of any such transaction), or (v) any other term or detail not relevant to the tax treatment or the tax structure of any such transaction.\n(h)\nSurvival. The provisions of this Agreement shall survive the termination of the Relationship and the assignment of this Agreement by the Company to any successor in interest or other\nassignee.\n7\nIN WITNESS WHEREOF, the undersigned has executed this Confidential Information and Intellectual Property Assignment Agreement as of March 27, 2003 .\nBy: /s/ William B. West\nName:\nWilliam B. West\nAddress:\nWitness\nBy: /s/ W. Eric Smith\nName:\nW. Eric Smith\nAddress:
48ea1356bbca6bde4defd0879b83d9b5.pdf	effective_date jurisdiction party term	EX-10.24 26 filename26.htm\nExhibit 10.24\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my employment with Mavenir Systems, Inc., a Delaware corporation, its subsidiaries, affiliates, successors or assigns\n(collectively, the “Company”) and in consideration of my receipt of confidential information upon execution of this Agreement and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms and conditions of this Employment, Confidential\nInformation, and Invention Assignment Agreement (the “Agreement”) which shall be effective as of the date set forth in the signature block\n(“Effective Date”):\n1. At-Will Employment. I UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN\nUNSPECIFIED DURATION AND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO\nTHE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE COMPANY’S CHIEF\nEXECUTIVE OFFICER OR PRESIDENT. I ACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT\nANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR\nMYSELF, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY MAY MODIFY JOB TITLES, SALARIES,\nAND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY, AND THAT ANY SUCH CHANGE SHALL NOT ALTER THE AT-\nWILL NATURE OF MY EMPLOYMENT RELATIONSHIP WITH THE COMPANY.\n2. Confidential Information.\n(a) Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, any of the Company’s Confidential Information; or disclose to any person, firm or corporation any of the\nCompany’s Confidential Information except as authorized in writing by the Company’s Board of Directors or, if expressly authorized by the\nCompany’s management, pursuant to a written nondisclosure agreement that sufficiently protects the Confidential Information. I understand that\n“Confidential Information” means any information that relates to the Company’s actual or anticipated business or research and development,\ntechnical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding the Company’s\nproducts or services and markets therefor, customer lists and customers (including, but not limited to, the Company’s customers on whom I called or\nwith whom I became acquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs,\ndrawings, engineering, hardware configuration information, marketing, finances or other business information. I further understand that Confidential\nInformation (i) includes the foregoing information even if disclosed to me in connection with the contemplation of my becoming an employee of the\nCompany, i.e., prior to the Effective Date, and (ii) does not include any of the foregoing items that is or becomes publicly known through no\nwrongful act or omission of mine or of others who were under confidentiality obligations as to the item or items involved or improvements or new\nversions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use, disclose, or induce\nthe Company to use any confidential or proprietary information or trade secrets of any former or concurrent employer or other person or entity and\nthat I will not bring onto the premises of the Company any confidential or proprietary information or trade secrets belonging to any such employer,\nperson or entity unless consented to in writing by both the Company and such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information, subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s agreement with such third\nparty.\n(d) Provision of Confidential Information. The Company agrees to provide me with certain Confidential Information regarding the\nCompany that will enable me to optimize the performance of my duties to the Company. I agree that the Company will have no obligation to make\navailable to me any of its Confidential Information after the termination of my employment.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto as Exhibit A is a list describing all inventions, original works of authorship,\ndevelopments, improvements and trade secrets that were made by me prior to my employment with the Company, relate to the Company’s proposed\nbusiness, products or research and development, and are owned in whole or in part by me, (“Prior Inventions”); or, if no such list is attached or if\nExhibit A is unsigned, I represent that there are no such Prior Inventions. I agree that I will not incorporate, or permit to be incorporated, any Prior\nInvention into a Company product, process or service without the Company’s prior written consent. Nevertheless, if, in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention, I hereby grant to the Company a\nnonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works\nof, distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Prior Invention as part of\nor in connection with such product, process or service, and to practice any method related thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right\nand benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions,\noriginal works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not\npatentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be\nconceived or developed or reduced to practice, during the period of time I am in the employ of the Company (collectively, “Inventions”), except as\nprovided in Section 3(f) below. I further acknowledge that all original works of authorship which are made by me (solely or jointly with others)\nwithin the scope of and during the period of my employment with the Company and which are protectable by copyright are “works made for hire” as\nthat term is defined in the United States Copyright Act. I understand and agree that the decision whether or not to commercialize or market any\nInvention is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the\nCompany’s efforts to commercialize or market any such Invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to\nany and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United States or any\nof its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all Inventions\nmade by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches,\ndrawings, electronic files, reports, or any other format that may be specified by the Company. The records are and will be available to the Company\nand shall remain the Company’s sole property at all times.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in every proper way to\nsecure the Company’s rights in any Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in\nany and all countries, including, but not limited to, the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments that the Company deems necessary in order to apply for and\nobtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and\ninterest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. I further agree\nthat my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the\ntermination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my signature\nto apply for or to pursue any application for any United States or foreign patents or copyright registrations covering any Inventions or original works\nof authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly authorized officers and\nagents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully\npermitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if\nexecuted by me.\n-2-\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company do\nnot apply to any Invention that I have developed entirely on my own time without using the Company’s equipment, supplies, facilities, trade secret\ninformation or Confidential Information (an “Other Invention”) except for those Other Inventions that either (i) relate at the time of conception or\nreduction to practice of such Other Invention to the Company’s business, or actual or demonstrably anticipated research or development of the\nCompany or (ii) result from any work that I performed for the Company. I will advise the Company promptly in writing of any Invention that I\nbelieve constitutes an Other Invention and is not otherwise disclosed on Exhibit A. I agree that I will not incorporate, or permit to be incorporated,\nany Other Invention owned by me or in which I have an interest into a Company product, process or service without the Company’s prior written\nconsent. Notwithstanding the foregoing sentence, if, in the course of my employment with the Company, I incorporate into a Company product,\nprocess or service an Other Invention owned by me or in which I have an interest, I hereby grant to the Company a nonexclusive, royalty-free, fully\npaid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display,\nimport, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Other Invention as part of or in connection with such\nproduct, process or service, and to practice any method related thereto.\n4. Conflicting Employment.\n(a) Current Obligations. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation or consulting related to the business in which the Company is now involved, becomes involved or has plans to become involved in during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n(b) Prior Relationships. Without limiting Section 4(a) above, I represent that I have no other agreements, relationships, or commitments\nto any other person or entity that conflict with my obligations to the Company under this Agreement or my ability to become employed and perform\nthe services for which I am being hired by the Company. I further agree that if I have signed a confidentiality agreement or similar type of agreement\nwith any former employer or other entity, I will comply with the terms of any such agreement to the extent that its terms are lawful under applicable\nlaw. I represent and warrant that after undertaking a careful search (including searches of my computers, cell phones, electronic devices, and\ndocuments), I have returned all property and confidential information belonging to all prior employers. Moreover, I agree to fully indemnify the\nCompany, its directors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from my breach of my\nobligations under any agreement to which I am a party or obligation to which I am bound, as well as any reasonable attorneys’ fees and costs if the\nplaintiff is the prevailing party in such an action, except as prohibited by law.\n5. Solicitation of Employees. I agree that for a period of one (1) year immediately following the termination of my relationship with the\nCompany for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice, I will not (either\ndirectly or indirectly, on behalf of myself or any third party) hire any of the Company’s employees, consultants or contractors or solicit, induce,\nrecruit or encourage any of the Company’s employees, consultants or contractors to leave their employment or terminate their relationship with the\nCompany.\n6. Interference. I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nrelationship with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not (either directly or indirectly, on behalf of myself or any third party) solicit to the detriment of the Company and/or for the benefit of any\ncompetitor of the Company, take away or attempt to take away, in whole or in part, any customer of the Company or otherwise interfere with the\nCompany’s customer relationships.\n-3-\n7. Covenant Not to Compete.\n(a) I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nemployment with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not, either directly or indirectly, (i) serve as an advisor, agent, consultant, director, employee, officer, partner, proprietor or otherwise of,\n(ii) have any ownership interest in (except for passive ownership of one percent (1%) or less of any entity whose securities have been registered\nunder the Securities Act of 1933, as amended, or Section 12 of the Securities Exchange Act of 1934, as amended) or (iii) participate in the\norganization, financing, operation, management or control of, any business in competition with the Company’s business in the Territory (1) as\nconducted by the Company during the course of my employment with the Company or (2) planned to be conducted by the Company pursuant to a\nproduct or business plan developed prior to the termination of my employment with the Company. “Territory” shall mean (A) all counties in the\nState of Texas, (B) all other states of the United States of America, (C) the European Union, (D) Asia, and (E) all other countries of the world in\nwhich the Company is then engaged in business. In particular, “Territory” shall include such geographic areas in which (I) the Company’s products\nand services are then deployed, (II) the Company then has a customer or (III) the Company then has operations or otherwise targets sales and\nmarketing activities or conducts or has plans to conduct business during the course of my employment.\n(b) I acknowledge that my fulfillment of the obligations contained in this Agreement, including, but not limited to, my obligation neither\nto use, except for the benefit of the Company, or to disclose the Company’s Confidential Information and my obligation not to compete contained in\nsubsection (a) above is necessary to protect the Company’s Confidential Information and to preserve the Company’s value and goodwill. I further\nacknowledge the time, geographic and scope limitations of my obligations under subsection (a) above are reasonable, especially in light of the\nCompany’s desire to protect its Confidential Information, and that I will not be precluded from gainful employment if I am obligated not to compete\nwith the Company during the period and within the Territory as described above.\n(c) The covenants contained in subsection (a) above shall be construed as a series of separate covenants, one for each city, county and\nstate of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the\ncovenant contained in subsection (a) above. If, in any judicial or arbitration proceeding, a court or arbitrator refuses to enforce any of such separate\ncovenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to\npermit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of subsection (a) above are deemed to\nexceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time,\ngeographic or scope limitations, as the case may be, then permitted by such law.\n8. Acknowledgements. I acknowledge that the non-solicitation and non-competition covenants I am providing in this Agreement are reasonable\nand necessary to protect the legitimate interests of the Company. I further acknowledge that my non-disclosure promises contained in this Agreement\nis in exchange for the Company’s promises contained in this Agreement to provide me with confidential information and trade secrets of the\nCompany.\n9. Returning Company Documents, etc. I agree that, upon separation from employment with the Company or on demand by the Company\nduring my employment, I will immediately deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and\nall Company property, including, but not limited to, the Company’s Confidential Information, as well as all devices and equipment belonging to the\nCompany (including computers, handheld electronic devices, telephone equipment, and other electronic devices), Company credit cards, records,\ndata, notes, notebooks, reports, files, proposals, lists, correspondence (including emails and any other electronic correspondence), specifications,\ndrawings, blueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any and all of the\naforementioned items that were developed by me pursuant to my employment with the Company, obtained by me in connection with my\nemployment with the Company, or otherwise belonging to the Company, its successors, or assigns, including, without limitation, those records\nmaintained pursuant to Section 3(e).Upon separation from employment with the Company, I agree to immediately sign and deliver to the Company\nthe “Termination Certification” attached hereto as Exhibit B. I also consent to an exit interview to confirm my compliance with this Section 9. I\nfurther agree to keep the Company advised of my home and business address for a period of three (3) years after termination of my employment with\nthe Company, so that the Company can contact me regarding my continuing obligations provided by this Agreement.\n10. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached hereto as Exhibit C.\n-4-\n11. Further Assurances; No Conflict. I agree to execute any proper oath or verify any proper document required to carry out the terms of this\nAgreement. I represent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary\ninformation acquired by me in confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter\ninto, any oral or written agreement in conflict herewith.\n12. Violation; Disciplinary Matters. I understand that any breach of this Agreement or violation of Company policies by me, including any\nunauthorized use or disclosure of Confidential Information of the Company or any third party during my employment may lead to disciplinary\naction, up to and including immediate termination and may further result in legal action by the Company.\n13. Notification to New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the Company\nto my new employer about my rights and obligations under this Agreement.\n14. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and my\nreceipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that, except as provided in\nsubsection (b) below, any and all controversies, claims, or disputes with anyone (including the Company and any employee, officer, director,\nshareholder or benefit plan of the Company in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with\nthe Company or the termination of my employment with the Company, including any breach of this Agreement, shall be subject to binding\narbitration shall be settled by arbitration to be held in Dallas, Texas in accordance with the rules then in effect of the American Arbitration\nAssociation. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under state or\nfederal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the\nAge Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Texas Fair Employment and Housing Act, the Texas\nLabor Code, claims of harassment, discrimination or wrongful termination and any statutory claims. I further understand that this Agreement to\narbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that any arbitration\nunder this section shall be conducted in Dallas, Texas. The arbitration proceedings will allow for discovery according to the AAA National Rules for\nthe Resolution of Employment Disputes. I agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration,\nincluding motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. I agree that the\narbitrator shall issue a written decision on the merits. I also agree that the arbitrator shall have the power to award any remedies, including attorneys’\nfees and costs, available under applicable law. I understand the Company will pay for any administrative or hearing fees charged by the arbitrator or\nAAA except that I shall pay the first $200.00 of any filing fees associated with any arbitration I initiate. I agree that the arbitrator shall administer\nand conduct any arbitration in a manner consistent with the AAA’s National Rules for the Resolution of Employment Disputes.\n(c) Remedy. Arbitration shall be the sole, exclusive and final remedy for any dispute between me and the Company. Accordingly, neither\nI nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding the foregoing, the\narbitrator will not have the authority to disregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the\nCompany to adopt a policy not otherwise required by law which the Company has not adopted.\n(d) Equitable Remedies. I agree that it would be impossible or inadequate to measure and calculate the Company’s damages from my\nbreach of Sections 2, 3, 5, 6 and 7 of this Agreement. Accordingly, I agree that if I breach any such Section, the Company will have available, in\naddition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or\nthreatened breach and to specific performance of any such provision of this Agreement. I further agree that no bond or other security shall be\nrequired in obtaining such equitable relief and I hereby consent to the issuance of such injunction and to the ordering of specific performance.\n-5-\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local, state\nor federal administrative body such as the Equal Employment Opportunity Commission or the Workers’ Compensation Commission. This\nAgreement does, however, preclude me from pursuing court action regarding any such claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress or\nundue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have asked any\nquestions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that I AM\nWAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice of an attorney of my choice\nbefore signing this Agreement.\n15. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE\nOF TEXAS WITHOUT REGARD FOR CONFLICTS OF LAWS PRINCIPLES. I HEREBY EXPRESSLY CONSENT TO THE PERSONAL\nJURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN TEXAS FOR ANY LAWSUIT FILED THERE AGAINST ME BY\nTHE COMPANY CONCERNING MY EMPLOYMENT OR THE TERMINATION OF MY EMPLOYMENT OR ARISING FROM OR\nRELATING TO THIS AGREEMENT.\n(b) Entire Agreement. This Agreement, together with the Exhibits herein, sets forth the entire agreement and understanding between the\nCompany and me relating to the subject matter herein and supersedes all prior discussions or representations between us, including, but not limited\nto, any representations made during my interview(s) or relocation negotiations, whether written or oral, and any previously executed proprietary\ninformation agreements. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing signed by the Company’s Chief Executive Officer or President and me. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law then the remaining provisions will continue\nin full force and effect.\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and\nwill be for the benefit of the Company, its successors and its assigns.\n(e) Waiver. Waiver by the Company of a breach of any provision of this Agreement will not operate as a waiver of any other or\nsubsequent breach.\n(f) Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with the\nCompany.\n(g) Construction. The language used in this Agreement will be deemed to by the language chosen by the parties to express their mutual\nintent and no rules of strict construction will be applied against either party.\n(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all of which\ntogether shall constitute one agreement.\n16. I acknowledge and agree to each of the following items:\n(a) I am executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else; and\n(b) I have carefully read this Agreement. I have asked any questions needed for me to understand the terms, consequences and binding\neffect of this Agreement and fully understand them; and\n-6-\n(c) I sought the advice of an attorney of my choice if I wanted to before signing this Agreement.\n[Remainder of this page intentionally left blank]\n-7-\nIN WITNESS WHEREOF, the parties have executed this Agreement on the day, month and year first set forth below, to be effective as of the\nEffective Date.\nDate:\n.\n.\nMAVENIR SYSTEMS, INC.\n“Employee”\nBy:\nSignature of Employee\nIts:\nType or Print Name of Employee\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION A SSIGNMENT AGREEMENT SIGNATURE PAGE\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nEXHIBIT B\nMAVENIR SYSTEMS, INC.\nTERMINATION CERTIFICATION\nI certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Mavenir Systems, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s Employment, Confidential Information, and Invention Assignment\nAgreement signed by me, including, but not limited to, the reporting of any Inventions or Other Inventions (as such terms are defined therein).\nI confirm my agreements contained in Section 2 (Confidential Information), Section 3 (Inventions), Section 5 (Solicitation of Employees),\nSection 6 (Interference), and Section 7 (Covenant Not to Compete) of the Employment, Confidential Information, and Invention Assignment\nAgreement.\nDate:\n(Employee’s Signature)\n(Type/Print Employee’s Name)\nEXHIBIT C\nMAVENIR SYSTEMS, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Mavenir Systems, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the\nhighest principles of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or\ngive the appearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising\nsituations which must be avoided. Any exceptions must be reported to the Chief Executive Officer or President and written approval for continuation\nmust be obtained\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The Employment, Confidential Information,\nand Invention Assignment Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.	EX-10.24 26 filename26.htm\nExhibit 10.24\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my employment with Mavenir Systems, Inc., a Delaware corporation, its subsidiaries, affiliates, successors or assigns\n(collectively, the “Company”) and in consideration of my receipt of confidential information upon execution of this Agreement and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms and conditions of this Employment, Confidential\nInformation, and Invention Assignment Agreement (the “Agreement”) which shall be effective as of the date set forth in the signature block\n(“Effective Date”):\n1. At-Will Employment. ] UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN\nUNSPECIFIED DURATION AND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO\nTHE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE COMPANY’S CHIEF\nEXECUTIVE OFFICER OR PRESIDENT. I ACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT\nANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR\nMYSELF, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY MAY MODIFY JOB TITLES, SALARIES,\nAND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY, AND THAT ANY SUCH CHANGE SHALL NOT ALTER THE AT-\nWILL NATURE OF MY EMPLOYMENT RELATIONSHIP WITH THE COMPANY.\n \n2. Confidential Information.\n(a) Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, any of the Company’s Confidential Information; or disclose to any person, firm or corporation any of the\nCompany’s Confidential Information except as authorized in writing by the Company’s Board of Directors or, if expressly authorized by the\nCompany’s management, pursuant to a written nondisclosure agreement that sufficiently protects the Confidential Information. I understand that\n“Confidential Information” means any information that relates to the Company’s actual or anticipated business or research and development,\ntechnical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding the Company’s\nproducts or services and markets therefor, customer lists and customers (including, but not limited to, the Company’s customers on whom I called or\nwith whom I became acquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs,\ndrawings, engineering, hardware configuration information, marketing, finances or other business information. I further understand that Confidential\nInformation (i) includes the foregoing information even if disclosed to me in connection with the contemplation of my becoming an employee of the\nCompany, i.e., prior to the Effective Date, and (ii) does not include any of the foregoing items that is or becomes publicly known through no\nwrongful act or omission of mine or of others who were under confidentiality obligations as to the item or items involved or improvements or new\nversions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use, disclose, or induce\nthe Company to use any confidential or proprietary information or trade secrets of any former or concurrent employer or other person or entity and\nthat I will not bring onto the premises of the Company any confidential or proprietary information or trade secrets belonging to any such employer,\nperson or entity unless consented to in writing by both the Company and such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information, subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s agreement with such third\nparty.\n(d) Provision of Confidential Information. The Company agrees to provide me with certain Confidential Information regarding the\nCompany that will enable me to optimize the performance of my duties to the Company. I agree that the Company will have no obligation to make\navailable to me any of its Confidential Information after the termination of my employment.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto as Exhibit A is a list describing all inventions, original works of authorship,\ndevelopments, improvements and trade secrets that were made by me prior to my employment with the Company, relate to the Company’s proposed\nbusiness, products or research and development, and are owned in whole or in part by me, (“Prior Inventions”); or, if no such list is attached or if\nExhibit A is unsigned, I represent that there are no such Prior Inventions. I agree that I will not incorporate, or permit to be incorporated, any Prior\nInvention into a Company product, process or service without the Company’s prior written consent. Nevertheless, if, in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention, I hereby grant to the Company a\nnonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works\nof, distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Prior Invention as part of\nor in connection with such product, process or service, and to practice any method related thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right\nand benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions,\noriginal works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not\npatentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be\nconceived or developed or reduced to practice, during the period of time I am in the employ of the Company (collectively, “Inventions”), except as\nprovided in Section 3(f) below. I further acknowledge that all original works of authorship which are made by me (solely or jointly with others)\nwithin the scope of and during the period of my employment with the Company and which are protectable by copyright are “works made for hire” as\nthat term is defined in the United States Copyright Act. I understand and agree that the decision whether or not to commercialize or market any\nInvention is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the\nCompany’s efforts to commercialize or market any such Invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to\nany and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United States or any\nof its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all Inventions\nmade by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches,\ndrawings, electronic files, reports, or any other format that may be specified by the Company. The records are and will be available to the Company\nand shall remain the Company’s sole property at all times.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in every proper way to\nsecure the Company’s rights in any Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in\nany and all countries, including, but not limited to, the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments that the Company deems necessary in order to apply for and\nobtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and\ninterest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. I further agree\nthat my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the\ntermination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my signature\nto apply for or to pursue any application for any United States or foreign patents or copyright registrations covering any Inventions or original works\nof authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly authorized officers and\nagents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully\npermitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if\nexecuted by me.\n_2-\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company do\nnot apply to any Invention that I have developed entirely on my own time without using the Company’s equipment, supplies, facilities, trade secret\ninformation or Confidential Information (an “Other Invention”) except for those Other Inventions that either (i) relate at the time of conception or\nreduction to practice of such Other Invention to the Company’s business, or actual or demonstrably anticipated research or development of the\nCompany or (ii) result from any work that I performed for the Company. I will advise the Company promptly in writing of any Invention that I\nbelieve constitutes an Other Invention and is not otherwise disclosed on Exhibit A. I agree that I will not incorporate, or permit to be incorporated,\nany Other Invention owned by me or in which I have an interest into a Company product, process or service without the Company’s prior written\nconsent. Notwithstanding the foregoing sentence, if, in the course of my employment with the Company, I incorporate into a Company product,\nprocess or service an Other Invention owned by me or in which I have an interest, I hereby grant to the Company a nonexclusive, royalty-free, fully\npaid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display,\nimport, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Other Invention as part of or in connection with such\nproduct, process or service, and to practice any method related thereto.\n4. Conflicting Employment.\n(a) Current Obligations. 1 agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation or consulting related to the business in which the Company is now involved, becomes involved or has plans to become involved in during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n(b) Prior Relationships. Without limiting Section 4(a) above, I represent that I have no other agreements, relationships, or commitments\nto any other person or entity that conflict with my obligations to the Company under this Agreement or my ability to become employed and perform\nthe services for which I am being hired by the Company. I further agree that if I have signed a confidentiality agreement or similar type of agreement\nwith any former employer or other entity, I will comply with the terms of any such agreement to the extent that its terms are lawful under applicable\nlaw. I represent and warrant that after undertaking a careful search (including searches of my computers, cell phones, electronic devices, and\ndocuments), I have returned all property and confidential information belonging to all prior employers. Moreover, I agree to fully indemnify the\nCompany, its directors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from my breach of my\nobligations under any agreement to which I am a party or obligation to which I am bound, as well as any reasonable attorneys’ fees and costs if the\nplaintiff is the prevailing party in such an action, except as prohibited by law.\n5. Solicitation of Employees. 1 agree that for a period of one (1) year immediately following the termination of my relationship with the\nCompany for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice, I will not (either\ndirectly or indirectly, on behalf of myself or any third party) hire any of the Company’s employees, consultants or contractors or solicit, induce,\nrecruit or encourage any of the Company’s employees, consultants or contractors to leave their employment or terminate their relationship with the\nCompany.\n6. Interference. I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nrelationship with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not (either directly or indirectly, on behalf of myself or any third party) solicit to the detriment of the Company and/or for the benefit of any\ncompetitor of the Company, take away or attempt to take away, in whole or in part, any customer of the Company or otherwise interfere with the\nCompany’s customer relationships.\n_3-\n7. Covenant Not to Compete.\n(a) I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nemployment with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not, either directly or indirectly, (i) serve as an advisor, agent, consultant, director, employee, officer, partner, proprietor or otherwise of,\n(ii) have any ownership interest in (except for passive ownership of one percent (1%) or less of any entity whose securities have been registered\nunder the Securities Act of 1933, as amended, or Section 12 of the Securities Exchange Act of 1934, as amended) or (iii) participate in the\norganization, financing, operation, management or control of, any business in competition with the Company’s business in the Territory (1) as\nconducted by the Company during the course of my employment with the Company or (2) planned to be conducted by the Company pursuant to a\nproduct or business plan developed prior to the termination of my employment with the Company. “Territory” shall mean (A) all counties in the\nState of Texas, (B) all other states of the United States of America, (C) the European Union, (D) Asia, and (E) all other countries of the world in\nwhich the Company is then engaged in business. In particular, “Territory” shall include such geographic areas in which (I) the Company’s products\nand services are then deployed, (II) the Company then has a customer or (IIT) the Company then has operations or otherwise targets sales and\nmarketing activities or conducts or has plans to conduct business during the course of my employment.\n \n(b) I acknowledge that my fulfillment of the obligations contained in this Agreement, including, but not limited to, my obligation neither\nto use, except for the benefit of the Company, or to disclose the Company’s Confidential Information and my obligation not to compete contained in\nsubsection (a) above is necessary to protect the Company’s Confidential Information and to preserve the Company’s value and goodwill. I further\nacknowledge the time, geographic and scope limitations of my obligations under subsection (a) above are reasonable, especially in light of the\nCompany’s desire to protect its Confidential Information, and that I will not be precluded from gainful employment if I am obligated not to compete\nwith the Company during the period and within the Territory as described above.\n(c) The covenants contained in subsection (a) above shall be construed as a series of separate covenants, one for each city, county and\nstate of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the\ncovenant contained in subsection (a) above. If, in any judicial or arbitration proceeding, a court or arbitrator refuses to enforce any of such separate\ncovenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to\npermit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of subsection (a) above are deemed to\nexceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time,\ngeographic or scope limitations, as the case may be, then permitted by such law.\n8. Acknowledgements. 1 acknowledge that the non-solicitation and non-competition covenants I am providing in this Agreement are reasonable\nand necessary to protect the legitimate interests of the Company. I further acknowledge that my non-disclosure promises contained in this Agreement\nis in exchange for the Company’s promises contained in this Agreement to provide me with confidential information and trade secrets of the\nCompany.\n9. Returning Company Documents, etc. I agree that, upon separation from employment with the Company or on demand by the Company\nduring my employment, I will immediately deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and\nall Company property, including, but not limited to, the Company’s Confidential Information, as well as all devices and equipment belonging to the\nCompany (including computers, handheld electronic devices, telephone equipment, and other electronic devices), Company credit cards, records,\ndata, notes, notebooks, reports, files, proposals, lists, correspondence (including emails and any other electronic correspondence), specifications,\ndrawings, blueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any and all of the\naforementioned items that were developed by me pursuant to my employment with the Company, obtained by me in connection with my\nemployment with the Company, or otherwise belonging to the Company, its successors, or assigns, including, without limitation, those records\nmaintained pursuant to Section 3(e).Upon separation from employment with the Company, I agree to immediately sign and deliver to the Company\nthe “Termination Certification” attached hereto as Exhibit B. I also consent to an exit interview to confirm my compliance with this Section 9. I\nfurther agree to keep the Company advised of my home and business address for a period of three (3) years after termination of my employment with\nthe Company, so that the Company can contact me regarding my continuing obligations provided by this Agreement.\n10. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached hereto as Exhibit C.\n_4-\n11. Further Assurances; No Conflict. I agree to execute any proper oath or verify any proper document required to carry out the terms of this\nAgreement. I represent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary\ninformation acquired by me in confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter\ninto, any oral or written agreement in conflict herewith.\n12. Violation; Disciplinary Matters. I understand that any breach of this Agreement or violation of Company policies by me, including any\nunauthorized use or disclosure of Confidential Information of the Company or any third party during my employment may lead to disciplinary\naction, up to and including immediate termination and may further result in legal action by the Company.\n13. Notification to New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the Company\nto my new employer about my rights and obligations under this Agreement.\n14. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and my\nreceipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that, except as provided in\nsubsection (b) below, any and all controversies, claims, or disputes with anyone (including the Company and any employee, officer, director,\nshareholder or benefit plan of the Company in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with\nthe Company or the termination of my employment with the Company, including any breach of this Agreement, shall be subject to binding\narbitration shall be settled by arbitration to be held in Dallas, Texas in accordance with the rules then in effect of the American Arbitration\nAssociation. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under state or\nfederal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the\nAge Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Texas Fair Employment and Housing Act, the Texas\nLabor Code, claims of harassment, discrimination or wrongful termination and any statutory claims. I further understand that this Agreement to\narbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. 1 agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that any arbitration\nunder this section shall be conducted in Dallas, Texas. The arbitration proceedings will allow for discovery according to the AAA National Rules for\nthe Resolution of Employment Disputes. I agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration,\nincluding motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. I agree that the\narbitrator shall issue a written decision on the merits. I also agree that the arbitrator shall have the power to award any remedies, including attorneys’\nfees and costs, available under applicable law. I understand the Company will pay for any administrative or hearing fees charged by the arbitrator or\nAAA except that I shall pay the first $200.00 of any filing fees associated with any arbitration I initiate. I agree that the arbitrator shall administer\nand conduct any arbitration in a manner consistent with the AAA’s National Rules for the Resolution of Employment Disputes.\n(c) Remedy. Arbitration shall be the sole, exclusive and final remedy for any dispute between me and the Company. Accordingly, neither\nI nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding the foregoing, the\narbitrator will not have the authority to disregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the\nCompany to adopt a policy not otherwise required by law which the Company has not adopted.\n(d) Equitable Remedies. 1 agree that it would be impossible or inadequate to measure and calculate the Company’s damages from my\nbreach of Sections 2, 3, 5, 6 and 7 of this Agreement. Accordingly, I agree that if I breach any such Section, the Company will have available, in\naddition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or\nthreatened breach and to specific performance of any such provision of this Agreement. I further agree that no bond or other security shall be\nrequired in obtaining such equitable relief and I hereby consent to the issuance of such injunction and to the ordering of specific performance.\n_5.\n(e) Administrative relief. 1 understand that this Agreement does not prohibit me from pursuing an administrative claim with a local, state\nor federal administrative body such as the Equal Employment Opportunity Commission or the Workers’ Compensation Commission. This\nAgreement does, however, preclude me from pursuing court action regarding any such claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress or\nundue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have asked any\nquestions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that I AM\nWAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice of an attorney of my choice\nbefore signing this Agreement.\n15. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE\nOF TEXAS WITHOUT REGARD FOR CONFLICTS OF LAWS PRINCIPLES. I HEREBY EXPRESSLY CONSENT TO THE PERSONAL\nJURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN TEXAS FOR ANY LAWSUIT FILED THERE AGAINST ME BY\nTHE COMPANY CONCERNING MY EMPLOYMENT OR THE TERMINATION OF MY EMPLOYMENT OR ARISING FROM OR\nRELATING TO THIS AGREEMENT.\n(b) Entire Agreement. This Agreement, together with the Exhibits herein, sets forth the entire agreement and understanding between the\nCompany and me relating to the subject matter herein and supersedes all prior discussions or representations between us, including, but not limited\nto, any representations made during my interview(s) or relocation negotiations, whether written or oral, and any previously executed proprietary\ninformation agreements. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing signed by the Company’s Chief Executive Officer or President and me. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law then the remaining provisions will continue\nin full force and effect.\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and\nwill be for the benefit of the Company, its successors and its assigns.\n(e) Waiver. Waiver by the Company of a breach of any provision of this Agreement will not operate as a waiver of any other or\nsubsequent breach.\n(f) Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with the\nCompany.\n(g) Construction. The language used in this Agreement will be deemed to by the language chosen by the parties to express their mutual\nintent and no rules of strict construction will be applied against either party.\n(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all of which\ntogether shall constitute one agreement.\n16. I acknowledge and agree to each of the following items:\n(a) I am executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else; and\n(b) I have carefully read this Agreement. I have asked any questions needed for me to understand the terms, consequences and binding\neffect of this Agreement and fully understand them; and\n-6-\n(c) I sought the advice of an attorney of my choice if I wanted to before signing this Agreement.\n[Remainder of this page intentionally left blank]\n_7-\nIN WITNESS WHEREOF, the parties have executed this Agreement on the day, month and year first set forth below, to be effective as of the\nEffective Date.\nDate:\nMAVENIR SYSTEMS, INC. “Employee”\nBy:\nSignature of Employee\nIts:\nType or Print Name of Employee\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION A SSIGNMENT AGREEMENT SIGNATURE PAGE\nTitle\n \nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nDate\nIdentifying Number or Brief Description\nEXHIBIT B\nMAVENIR SYSTEMS, INC.\nTERMINATION CERTIFICATION\nI certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Mavenir Systems, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s Employment, Confidential Information, and Invention Assignment\nAgreement signed by me, including, but not limited to, the reporting of any Inventions or Other Inventions (as such terms are defined therein).\nI confirm my agreements contained in Section 2 (Confidential Information), Section 3 (Inventions), Section 5 (Solicitation of Employees),\nSection 6 (Interference), and Section 7 (Covenant Not to Compete) of the Employment, Confidential Information, and Invention Assignment\nAgreement.\nDate:\n(Employee’s Signature)\n(Type/Print Employee’s Name)\nEXHIBIT C\nMAVENIR SYSTEMS, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Mavenir Systems, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the\nhighest principles of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or\ngive the appearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising\nsituations which must be avoided. Any exceptions must be reported to the Chief Executive Officer or President and written approval for continuation\nmust be obtained\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The Employment, Confidential Information,\nand Invention Assignment Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.	EX-10.24 26 filename26.htm\nExhibit 10.24\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my employment with Mavenir Systems, Inc., a Delaware corporation, its subsidiaries, affiliates, successors or assigns\n(collectively, the "Company.") and in consideration of my receipt of confidential information upon execution of this Agreement and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms and conditions of this Employment, Confidential\nInformation, and Invention Assignment Agreement (the "Agreement") which shall be effective as of the date set forth in the signature block\n("Effective Date"):\n1. At-Will Employment. I UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN\nUNSPECIFIED DURATION AND CONSTITUTES "AT-WILL" EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO\nTHE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE COMPANY'S CHIEF\nEXECUTIVE OFFICER OR PRESIDENT. I ACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT\nANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR\nMYSELF, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY MAY MODIFY JOB TITLES, SALARIES,\nAND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY, AND THAT ANY SUCH CHANGE SHALL NOT ALTER THE AT-\nWILL NATURE OF MY EMPLOYMENT RELATIONSHIP WITH THE COMPANY.\n2. Confidential Information.\n(a) Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, any of the Company's Confidential Information; or disclose to any person, firm or corporation any of the\nCompany's Confidential Information except as authorized in writing by the Company's Board of Directors or, if expressly authorized by the\nCompany's\nmanagement,\npursuant\nto\na\nwritten\nnondisclosure\nagreement\nthat\nsufficiently\nprotects\nthe\nConfidential\nInformation.\nI\nunderstand\nthat\n"Confidential Information" means any information that relates to the Company's actual or anticipated business or research and development,\ntechnical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding the Company's\nproducts or services and markets therefor, customer lists and customers (including, but not limited to, the Company's customers on whom I called or\nwith whom I became acquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs,\ndrawings, engineering, hardware configuration information, marketing, finances or other business information. I further understand that Confidentia\nInformation (i) includes the foregoing information even if disclosed to me in connection with the contemplation of my becoming an employee of the\nCompany, i.e., prior to the Effective Date, and (ii) does not include any of the foregoing items that is or becomes publicly known through no\nwrongful act or omission of mine or of others who were under confidentiality obligations as to the item or items involved or improvements or new\nversions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use, disclose, or induce\nthe\nCompany to use any confidential or proprietary information or trade secrets of any former or concurrent employer or other person or entity and\nthat I will not bring onto the premises of the Company any confidential or proprietary information or trade secrets belonging to any such employer,\nperson or entity unless consented to in writing by both the Company and such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information, subject to a duty on the Company's part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company's agreement with such third\nparty.\n(d) Provision of Confidential Information. The Company agrees to provide me with certain Confidential Information regarding the\nCompany that will enable me to optimize the performance of my duties to the Company. I agree that the Company will have no obligation to make\navailable to me any of its Confidential Information after the termination of my employment.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto as Exhibit A is a list describing all inventions, original works of authorship,\ndevelopments, improvements and trade secrets that were made by me prior to my employment with the Company, relate to the Company's proposed\nbusiness, products or research and development, and are owned in whole or in part by me, ("Prior Inventions"); or, if no such list is attached or if\nExhibit\nA\nis\nunsigned,\nI\nrepresent\nthat\nthere\nare\nno\nsuch\nPrior\nInventions.\nI\nagree\nthat\nI\nwill\nnot\nincorporate,\nor\npermit\nto\nbe\nincorporated,\nany\nPrior\nInvention into a Company product, process or service without the Company's prior written consent. Nevertheless, if, in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention, I hereby grant to the Company a\nnonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works\nof, distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Prior Invention as part\nof\nor in connection with such product, process or service, and to practice any method related thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right\nand benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions,\noriginal works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not\npatentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be\nconceived or developed or reduced to practice, during the period of time I am in the employ of the Company (collectively, "Inventions"), except as\nprovided in Section 3(f) below. I further acknowledge that all original works of authorship which are made by me (solely or jointly with others)\nwithin the scope of and during the period of my employment with the Company and which are protectable by copyright are "works made for hire" as\nthat term is defined in the United States Copyright Act. I understand and agree that the decision whether or not to commercialize or market any\nInvention is within the Company's sole discretion and for the Company's sole benefit and that no royalty will be due to me as a result of the\nCompany's efforts to commercialize or market any such Invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to\nany and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United States or any\nof its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all Inventions\nmade by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches,\ndrawings, electronic files, reports, or any other format that may be specified by the Company. The records are and will be available to the Company\nand shall remain the Company's sole property at all times.\n(e) Patent and Copyright Registrations I agree to assist the Company, or its designee, at the Company's expense, in every proper way to\nsecure the Company's rights in any Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in\nany and all countries, including, but not limited to, the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments that the Company deems necessary in order to apply for and\nobtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and\ninterest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. I further agree\nthat my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the\ntermination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my signature\nto apply for or to pursue any application for any United States or foreign patents or copyright registrations covering any Inventions or original works\nof\nauthorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly authorized officers and\nagents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully\npermitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as\nif\nexecuted by me.\n2\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company do\nnot\napply to any Invention that I have developed entirely on my own time without using the Company's equipment, supplies, facilities, trade secret\ninformation or Confidential Information (an "Other Invention") except for those Other Inventions that either (i) relate at the time of conception or\nreduction to practice of such Other Invention to the Company's business, or actual or demonstrably anticipated research or development of the\nCompany or (ii) result from any work that I performed for the Company. I will advise the Company promptly in writing of any Invention that I\nbelieve constitutes an Other Invention and is not otherwise disclosed on Exhibit A. I agree that I will not incorporate, or permit to be incorporated,\nany Other Invention owned by me or in which I have an interest into a Company product, process or service without the Company's prior written\nconsent. Notwithstanding the foregoing sentence, if, in the course of my employment with the Company, I incorporate into a Company product,\nprocess or service an Other Invention owned by me or in which I have an interest, I hereby grant to the Company a nonexclusive, royalty-free, fully\npaid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display,\nimport, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Other Invention as part of or in connection with such\nproduct, process or service, and to practice any method related thereto.\n4. Conflicting Employment.\n(a) Current Obligations. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation or consulting related to the business in which the Company is now involved, becomes involved or has plans to become involved in during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n(b) Prior Relationships. Without limiting Section 4(a) above, I represent that I have no other agreements, relationships, or commitments\nto\nany\nother person or entity that conflict with my obligations to the Company under this Agreement or my ability to become employed and perform\nthe services for which I am being hired by the Company. I further agree that if I have signed a confidentiality agreement or similar type of agreement\nwith any former employer or other entity, I will comply with the terms of any such agreement to the extent that its terms are lawful under applicable\nlaw. I represent and warrant that after undertaking a careful search (including searches of my computers, cell phones, electronic devices, and\ndocuments), I have returned all property and confidential information belonging to all prior employers. Moreover, I agree to fully indemnify the\nCompany, its directors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from my breach of my\nobligations under any agreement to which I am a party or obligation to which I am bound, as well as any reasonable attorneys' fees and costs if the\nplaintiff is the prevailing party in such an action, except as prohibited by law.\n5. Solicitation of Employees. I agree that for a period of one (1) year immediately following the termination of my relationship with the\nCompany for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice, I will not (either\ndirectly or indirectly, on behalf of myself or any third party) hire any of the Company's employees, consultants or contractors or solicit, induce,\nrecruit or encourage any of the Company's employees, consultants or contractors to leave their employment or terminate their relationship with the\nCompany.\n6.\nInterference. I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nrelationship with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not (either directly or indirectly, on behalf of myself or any third party) solicit to the detriment of the Company and/or for the benefit of any\ncompetitor of the Company, take away or attempt to take away, in whole or in part, any customer of the Company or otherwise interfere with the\nCompany's customer relationships.\n3\n7. Covenant Not to Compete.\n(a) I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nemployment with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not, either directly or indirectly, (i) serve as an advisor, agent, consultant, director, employee, officer, partner, proprietor or otherwise of,\n(ii)\nhave\nany\nownership\ninterest\nin\n(except\nfor\npassive\nownership\nof\none\npercent\n(1%)\nor\nless\nof\nany\nentity\nwhose\nsecurities\nhave\nbeen\nregistered\nunder the Securities Act of 1933, as amended, or Section 12 of the Securities Exchange Act of 1934, as amended) or (iii) participate in the\norganization, financing, operation, management or control of, any business in competition with the Company's business in the Territory (1) as\nconducted by the Company during the course of my employment with the Company or (2) planned to be conducted by the Company pursuant\nto\na\nproduct or business plan developed prior to the termination of my employment with the Company. "Territory." shall mean (A) all counties in the\nState of Texas, (B) all other states of the United States of America, (C) the European Union, (D) Asia, and (E) all other countries of the world\nin\nwhich the Company is then engaged in business. In particular, "Territory." shall include such geographic areas in which (I) the Company's products\nand services are then deployed, (II) the Company then has a customer or (III) the Company then has operations or otherwise targets sales and\nmarketing activities or conducts or has plans to conduct business during the course of my employment.\n(b) I acknowledge that my fulfillment of the obligations contained in this Agreement, including, but not limited to, my obligation neither\nto use, except for the benefit of the Company, or to disclose the Company's Confidential Information and my obligation not to compete contained in\nsubsection (a) above is necessary to protect the Company's Confidential Information and to preserve the Company's value and goodwill. I further\nacknowledge the time, geographic and scope limitations of my obligations under subsection (a) above are reasonable, especially in light of the\nCompany's desire to protect its Confidential Information, and that I will not be precluded from gainful employment if I am obligated not to compete\nwith the Company during the period and within the Territory as described above.\n(c) The covenants contained in subsection (a) above shall be construed as a series of separate covenants, one for each city, county and\nstate of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the\ncovenant contained in subsection (a) above. If, in any judicial or arbitration proceeding, a court or arbitrator refuses to enforce any of such separate\ncovenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to\npermit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of subsection (a) above are deemed to\nexceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time,\ngeographic or scope limitations, as the case may be, then permitted by such law.\n8.\nAcknowledgements I acknowledge that the non-solicitation and non-competition covenants I am providing in this Agreement are reasonable\nand necessary to protect the legitimate interests of the Company. I further acknowledge that my non-disclosure promises contained in this Agreement\nis in exchange for the Company's promises contained in this Agreement to provide me with confidential information and trade secrets of the\nCompany.\n9. Returning Company Documents, etc. I agree that, upon separation from employment with the Company or on demand by the Company\nduring my employment, I will immediately deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and\nall Company property including, but not limited to, the Company's Confidential Information, as well as all devices and equipment belonging to the\nCompany (including computers, handheld electronic devices, telephone equipment, and other electronic devices), Company credit cards, records,\ndata, notes, notebooks, reports, files, proposals, lists, correspondence (including emails and any other electronic correspondence), specifications,\ndrawings, blueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any and all of the\naforementioned items that were developed by me pursuant to my employment with the Company, obtained by me in connection with my\nemployment with the Company, or otherwise belonging to the Company, its successors, or assigns, including, without limitation, those records\nmaintained pursuant to Section 3(e).U Upon separation from employment with the Company, I agree to immediately sign and deliver to the Company\nthe "Termination Certification" attached hereto as Exhibit B. I also consent to an exit interview to confirm my compliance with this Section 9. I\nfurther agree to keep the Company advised of my home and business address for a period of three (3) years after termination of my employment\nwith\nthe Company, so that the Company can contact me regarding my continuing obligations provided by this Agreement.\n10. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached hereto as Exhibit C.\n4\n11. Further Assurances; No Conflict. I agree to execute any proper oath or verify any proper document required to carry out the terms of this\nAgreement. I represent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary\ninformation acquired by me in confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter\ninto, any oral or written agreement in conflict herewith.\n12.\nViolation; Disciplinary Matters. I understand that any breach of this Agreement or violation of Company policies\nby\nme,\nincluding\nany\nunauthorized use or disclosure of Confidential Information of the Company or any third party during my employment may lead to disciplinary\naction, up to and including immediate termination and may further result in legal action by the Company.\n13. Notification to New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the Company\nto my new employer about my rights and obligations under this Agreement.\n14. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and my\nreceipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that, except as provided\nin\nsubsection (b) below, any and all controversies, claims, or disputes with anyone (including the Company and any employee, officer, director,\nshareholder or benefit plan of the Company in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with\nthe Company or the termination of my employment with the Company, including any breach of this Agreement, shall be subject to binding\narbitration shall be settled by arbitration to be held in Dallas, Texas in accordance with the rules then in effect of the American Arbitration\nAssociation. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under state or\nfederal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the\nAge Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Texas Fair Employment and Housing Act, the Texas\nLabor Code, claims of harassment, discrimination or wrongful termination and any statutory claims. I further understand that this Agreement to\narbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association ("AAA") and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that any arbitration\nunder this section shall be conducted in Dallas, Texas. The arbitration proceedings will allow for discovery according to the AAA National Rules for\nthe Resolution of Employment Disputes. I agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration,\nincluding motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. I agree that the\narbitrator shall issue a written decision on the merits. I also agree that the arbitrator shall have the power to award any remedies, including attorneys'\nfees and costs, available under applicable law. I understand the Company will pay for any administrative or hearing fees charged by the arbitrator or\nAAA except that I shall pay the first $200.00 of any filing fees associated with any arbitration I initiate. I agree that the arbitrator shall administer\nand conduct any arbitration in a manner consistent with the AAA's National Rules for the Resolution of Employment Disputes.\n(c) Remedy. Arbitration shall be the sole, exclusive and final remedy for any dispute between me and the Company. Accordingly, neither\nI nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding the foregoing, the\narbitrator will not have the authority to disregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require\nthe\nCompany to adopt a policy not otherwise required by law which the Company has not adopted.\n(d) Equitable Remedies. I agree that it would be impossible or inadequate to measure and calculate the Company's damages from my\nbreach of Sections 2, 3, 5, 6 and 7 of this Agreement. Accordingly, I agree that if I breach any such Section, the Company will have available, in\naddition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or\nthreatened breach and to specific performance of any such provision of this Agreement. I further agree that no bond or other security shall be\nrequired in obtaining such equitable relief and I hereby consent to the issuance of such injunction and to the ordering of specific performance.\n5\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local, state\nor federal administrative body such as the Equal Employment Opportunity Commission or the Workers' Compensation Commission. This\nAgreement does, however, preclude me from pursuing court action regarding any such claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress or\nundue\ninfluence\nby\nthe\nCompany\nor\nanyone\nelse.\nI\nfurther\nacknowledge\nand\nagree\nthat\nI\nhave\ncarefully\nread\nthis\nAgreement\nand\nthat\nI\nhave\nasked\nany\nquestions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that I AM\nWAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice of an attorney of my choice\nbefore signing this Agreement.\n15. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE\nOF TEXAS WITHOUT REGARD FOR CONFLICTS OF LAWS PRINCIPLES. I HEREBY EXPRESSLY CONSENT TO THE PERSONAL\nJURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN TEXAS FOR ANY LAWSUIT FILED THERE AGAINST ME BY\nTHE COMPANY CONCERNING MY EMPLOYMENT OR THE TERMINATION OF MY EMPLOYMENT OR ARISING FROM OR\nRELATING TO THIS AGREEMENT.\n(b) Entire Agreement. This Agreement, together with the Exhibits herein, sets forth the entire agreement and understanding between the\nCompany and me relating to the subject matter herein and supersedes all prior discussions or representations between us, including, but not limited\nto, any representations made during my interview(s) or relocation negotiations, whether written or oral, and any previously executed proprietary\ninformation agreements. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing signed by the Company's Chief Executive Officer or President and me. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law then the remaining provisions will continue\nin full force and effect.\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and\nwill be for the benefit of the Company, its successors and its assigns.\n(e) Waiver. Waiver by the Company of a breach of any provision of this Agreement will not operate as a waiver of any other or\nsubsequent breach.\n(f) Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with the\nCompany.\n(g) Construction. The language used in this Agreement will be deemed to by the language chosen by the parties to express their mutual\nintent and no rules of strict construction will be applied against either party.\n(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all of which\ntogether shall constitute one agreement.\n16. I acknowledge and agree to each of the following items:\n(a) I am executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else; and\n(b) I have carefully read this Agreement. I have asked any questions needed for me to understand the terms, consequences and binding\neffect of this Agreement and fully understand them; and\n6\n(c) I sought the advice of an attorney of my choice if I wanted to before signing this Agreement.\n[Remainder of this page intentionally left blank]\n- 7 -\nIN WITNESS WHEREOF, the parties have executed this Agreement on the day, month and year first set forth below, to be effective as of the\nEffective Date.\nDate: .\nMAVENIR SYSTEMS, INC.\n"Employee"\nBy:\nSignature of Employee\nIts:\nType or Print Name of Employee\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT SIGNATURE PAGE\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nEXHIBIT B\nMAVENIR SYSTEMS, INC.\nTERMINATION CERTIFICATION\nI certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Mavenir Systems, Inc., its subsidiaries, affiliates, successors or assigns (together, the "Company.").\nI\nfurther certify that I have complied with all the terms of the Company's Employment, Confidential Information, and Invention Assignment\nAgreement signed by me, including, but not limited to, the reporting of any Inventions or Other Inventions (as such terms are defined therein).\nI confirm my agreements contained in Section 2 (Confidential Information), Section 3 (Inventions), Section 5 (Solicitation of Employees),\nSection 6 (Interference), and Section 7 (Covenant Not to Compete) of the Employment, Confidential Information, and Invention Assignment\nAgreement.\nDate:\n(Employee's Signature)\n(Type/Print Employee's Name)\nEXHIBIT C\nMAVENIR SYSTEMS, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Mavenir Systems, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the\nhighest principles of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or\ngive the appearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising\nsituations which must be avoided. Any exceptions must be reported to the Chief Executive Officer or President and written approval for continuation\nmust be obtained\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The Employment, Confidential Information,\nand Invention Assignment Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9.\nImproperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.	EX-10.24 26 filename26.htm\nExhibit 10.24\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my employment with Mavenir Systems, Inc., a Delaware corporation, its subsidiaries, affiliates, successors or assigns\n(collectively, the “Company”) and in consideration of my receipt of confidential information upon execution of this Agreement and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms and conditions of this Employment, Confidential\nInformation, and Invention Assignment Agreement (the “Agreement”) which shall be effective as of the date set forth in the signature block\n(“Effective Date”):\n1. At-Will Employment. I UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN\nUNSPECIFIED DURATION AND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO\nTHE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE COMPANY’S CHIEF\nEXECUTIVE OFFICER OR PRESIDENT. I ACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT\nANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR\nMYSELF, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY MAY MODIFY JOB TITLES, SALARIES,\nAND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY, AND THAT ANY SUCH CHANGE SHALL NOT ALTER THE AT-\nWILL NATURE OF MY EMPLOYMENT RELATIONSHIP WITH THE COMPANY.\n2. Confidential Information.\n(a) Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, any of the Company’s Confidential Information; or disclose to any person, firm or corporation any of the\nCompany’s Confidential Information except as authorized in writing by the Company’s Board of Directors or, if expressly authorized by the\nCompany’s management, pursuant to a written nondisclosure agreement that sufficiently protects the Confidential Information. I understand that\n“Confidential Information” means any information that relates to the Company’s actual or anticipated business or research and development,\ntechnical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding the Company’s\nproducts or services and markets therefor, customer lists and customers (including, but not limited to, the Company’s customers on whom I called or\nwith whom I became acquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs,\ndrawings, engineering, hardware configuration information, marketing, finances or other business information. I further understand that Confidential\nInformation (i) includes the foregoing information even if disclosed to me in connection with the contemplation of my becoming an employee of the\nCompany, i.e., prior to the Effective Date, and (ii) does not include any of the foregoing items that is or becomes publicly known through no\nwrongful act or omission of mine or of others who were under confidentiality obligations as to the item or items involved or improvements or new\nversions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use, disclose, or induce\nthe Company to use any confidential or proprietary information or trade secrets of any former or concurrent employer or other person or entity and\nthat I will not bring onto the premises of the Company any confidential or proprietary information or trade secrets belonging to any such employer,\nperson or entity unless consented to in writing by both the Company and such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information, subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s agreement with such third\nparty.\n(d) Provision of Confidential Information. The Company agrees to provide me with certain Confidential Information regarding the\nCompany that will enable me to optimize the performance of my duties to the Company. I agree that the Company will have no obligation to make\navailable to me any of its Confidential Information after the termination of my employment.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto as Exhibit A is a list describing all inventions, original works of authorship,\ndevelopments, improvements and trade secrets that were made by me prior to my employment with the Company, relate to the Company’s proposed\nbusiness, products or research and development, and are owned in whole or in part by me, (“Prior Inventions”); or, if no such list is attached or if\nExhibit A is unsigned, I represent that there are no such Prior Inventions. I agree that I will not incorporate, or permit to be incorporated, any Prior\nInvention into a Company product, process or service without the Company’s prior written consent. Nevertheless, if, in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention, I hereby grant to the Company a\nnonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works\nof, distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Prior Invention as part of\nor in connection with such product, process or service, and to practice any method related thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right\nand benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions,\noriginal works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not\npatentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be\nconceived or developed or reduced to practice, during the period of time I am in the employ of the Company (collectively, “Inventions”), except as\nprovided in Section 3(f) below. I further acknowledge that all original works of authorship which are made by me (solely or jointly with others)\nwithin the scope of and during the period of my employment with the Company and which are protectable by copyright are “works made for hire” as\nthat term is defined in the United States Copyright Act. I understand and agree that the decision whether or not to commercialize or market any\nInvention is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the\nCompany’s efforts to commercialize or market any such Invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to\nany and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United States or any\nof its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all Inventions\nmade by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches,\ndrawings, electronic files, reports, or any other format that may be specified by the Company. The records are and will be available to the Company\nand shall remain the Company’s sole property at all times.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in every proper way to\nsecure the Company’s rights in any Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in\nany and all countries, including, but not limited to, the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments that the Company deems necessary in order to apply for and\nobtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and\ninterest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. I further agree\nthat my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the\ntermination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my signature\nto apply for or to pursue any application for any United States or foreign patents or copyright registrations covering any Inventions or original works\nof authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly authorized officers and\nagents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully\npermitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if\nexecuted by me.\n-2-\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company do\nnot apply to any Invention that I have developed entirely on my own time without using the Company’s equipment, supplies, facilities, trade secret\ninformation or Confidential Information (an “Other Invention”) except for those Other Inventions that either (i) relate at the time of conception or\nreduction to practice of such Other Invention to the Company’s business, or actual or demonstrably anticipated research or development of the\nCompany or (ii) result from any work that I performed for the Company. I will advise the Company promptly in writing of any Invention that I\nbelieve constitutes an Other Invention and is not otherwise disclosed on Exhibit A. I agree that I will not incorporate, or permit to be incorporated,\nany Other Invention owned by me or in which I have an interest into a Company product, process or service without the Company’s prior written\nconsent. Notwithstanding the foregoing sentence, if, in the course of my employment with the Company, I incorporate into a Company product,\nprocess or service an Other Invention owned by me or in which I have an interest, I hereby grant to the Company a nonexclusive, royalty-free, fully\npaid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display,\nimport, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Other Invention as part of or in connection with such\nproduct, process or service, and to practice any method related thereto.\n4. Conflicting Employment.\n(a) Current Obligations. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation or consulting related to the business in which the Company is now involved, becomes involved or has plans to become involved in during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n(b) Prior Relationships. Without limiting Section 4(a) above, I represent that I have no other agreements, relationships, or commitments\nto any other person or entity that conflict with my obligations to the Company under this Agreement or my ability to become employed and perform\nthe services for which I am being hired by the Company. I further agree that if I have signed a confidentiality agreement or similar type of agreement\nwith any former employer or other entity, I will comply with the terms of any such agreement to the extent that its terms are lawful under applicable\nlaw. I represent and warrant that after undertaking a careful search (including searches of my computers, cell phones, electronic devices, and\ndocuments), I have returned all property and confidential information belonging to all prior employers. Moreover, I agree to fully indemnify the\nCompany, its directors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from my breach of my\nobligations under any agreement to which I am a party or obligation to which I am bound, as well as any reasonable attorneys’ fees and costs if the\nplaintiff is the prevailing party in such an action, except as prohibited by law.\n5. Solicitation of Employees. I agree that for a period of one (1) year immediately following the termination of my relationship with the\nCompany for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice, I will not (either\ndirectly or indirectly, on behalf of myself or any third party) hire any of the Company’s employees, consultants or contractors or solicit, induce,\nrecruit or encourage any of the Company’s employees, consultants or contractors to leave their employment or terminate their relationship with the\nCompany.\n6. Interference. I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nrelationship with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not (either directly or indirectly, on behalf of myself or any third party) solicit to the detriment of the Company and/or for the benefit of any\ncompetitor of the Company, take away or attempt to take away, in whole or in part, any customer of the Company or otherwise interfere with the\nCompany’s customer relationships.\n-3-\n7. Covenant Not to Compete.\n(a) I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nemployment with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not, either directly or indirectly, (i) serve as an advisor, agent, consultant, director, employee, officer, partner, proprietor or otherwise of,\n(ii) have any ownership interest in (except for passive ownership of one percent (1%) or less of any entity whose securities have been registered\nunder the Securities Act of 1933, as amended, or Section 12 of the Securities Exchange Act of 1934, as amended) or (iii) participate in the\norganization, financing, operation, management or control of, any business in competition with the Company’s business in the Territory (1) as\nconducted by the Company during the course of my employment with the Company or (2) planned to be conducted by the Company pursuant to a\nproduct or business plan developed prior to the termination of my employment with the Company. “Territory” shall mean (A) all counties in the\nState of Texas, (B) all other states of the United States of America, (C) the European Union, (D) Asia, and (E) all other countries of the world in\nwhich the Company is then engaged in business. In particular, “Territory” shall include such geographic areas in which (I) the Company’s products\nand services are then deployed, (II) the Company then has a customer or (III) the Company then has operations or otherwise targets sales and\nmarketing activities or conducts or has plans to conduct business during the course of my employment.\n(b) I acknowledge that my fulfillment of the obligations contained in this Agreement, including, but not limited to, my obligation neither\nto use, except for the benefit of the Company, or to disclose the Company’s Confidential Information and my obligation not to compete contained in\nsubsection (a) above is necessary to protect the Company’s Confidential Information and to preserve the Company’s value and goodwill. I further\nacknowledge the time, geographic and scope limitations of my obligations under subsection (a) above are reasonable, especially in light of the\nCompany’s desire to protect its Confidential Information, and that I will not be precluded from gainful employment if I am obligated not to compete\nwith the Company during the period and within the Territory as described above.\n(c) The covenants contained in subsection (a) above shall be construed as a series of separate covenants, one for each city, county and\nstate of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the\ncovenant contained in subsection (a) above. If, in any judicial or arbitration proceeding, a court or arbitrator refuses to enforce any of such separate\ncovenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to\npermit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of subsection (a) above are deemed to\nexceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time,\ngeographic or scope limitations, as the case may be, then permitted by such law.\n8. Acknowledgements. I acknowledge that the non-solicitation and non-competition covenants I am providing in this Agreement are reasonable\nand necessary to protect the legitimate interests of the Company. I further acknowledge that my non-disclosure promises contained in this Agreement\nis in exchange for the Company’s promises contained in this Agreement to provide me with confidential information and trade secrets of the\nCompany.\n9. Returning Company Documents, etc. I agree that, upon separation from employment with the Company or on demand by the Company\nduring my employment, I will immediately deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and\nall Company property, including, but not limited to, the Company’s Confidential Information, as well as all devices and equipment belonging to the\nCompany (including computers, handheld electronic devices, telephone equipment, and other electronic devices), Company credit cards, records,\ndata, notes, notebooks, reports, files, proposals, lists, correspondence (including emails and any other electronic correspondence), specifications,\ndrawings, blueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any and all of the\naforementioned items that were developed by me pursuant to my employment with the Company, obtained by me in connection with my\nemployment with the Company, or otherwise belonging to the Company, its successors, or assigns, including, without limitation, those records\nmaintained pursuant to Section 3(e).Upon separation from employment with the Company, I agree to immediately sign and deliver to the Company\nthe “Termination Certification” attached hereto as Exhibit B. I also consent to an exit interview to confirm my compliance with this Section 9. I\nfurther agree to keep the Company advised of my home and business address for a period of three (3) years after termination of my employment with\nthe Company, so that the Company can contact me regarding my continuing obligations provided by this Agreement.\n10. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached hereto as Exhibit C.\n-4-\n11. Further Assurances; No Conflict. I agree to execute any proper oath or verify any proper document required to carry out the terms of this\nAgreement. I represent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary\ninformation acquired by me in confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter\ninto, any oral or written agreement in conflict herewith.\n12. Violation; Disciplinary Matters. I understand that any breach of this Agreement or violation of Company policies by me, including any\nunauthorized use or disclosure of Confidential Information of the Company or any third party during my employment may lead to disciplinary\naction, up to and including immediate termination and may further result in legal action by the Company.\n13. Notification to New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the Company\nto my new employer about my rights and obligations under this Agreement.\n14. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and my\nreceipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that, except as provided in\nsubsection (b) below, any and all controversies, claims, or disputes with anyone (including the Company and any employee, officer, director,\nshareholder or benefit plan of the Company in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with\nthe Company or the termination of my employment with the Company, including any breach of this Agreement, shall be subject to binding\narbitration shall be settled by arbitration to be held in Dallas, Texas in accordance with the rules then in effect of the American Arbitration\nAssociation. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under state or\nfederal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the\nAge Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Texas Fair Employment and Housing Act, the Texas\nLabor Code, claims of harassment, discrimination or wrongful termination and any statutory claims. I further understand that this Agreement to\narbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that any arbitration\nunder this section shall be conducted in Dallas, Texas. The arbitration proceedings will allow for discovery according to the AAA National Rules for\nthe Resolution of Employment Disputes. I agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration,\nincluding motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. I agree that the\narbitrator shall issue a written decision on the merits. I also agree that the arbitrator shall have the power to award any remedies, including attorneys’\nfees and costs, available under applicable law. I understand the Company will pay for any administrative or hearing fees charged by the arbitrator or\nAAA except that I shall pay the first $200.00 of any filing fees associated with any arbitration I initiate. I agree that the arbitrator shall administer\nand conduct any arbitration in a manner consistent with the AAA’s National Rules for the Resolution of Employment Disputes.\n(c) Remedy. Arbitration shall be the sole, exclusive and final remedy for any dispute between me and the Company. Accordingly, neither\nI nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding the foregoing, the\narbitrator will not have the authority to disregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the\nCompany to adopt a policy not otherwise required by law which the Company has not adopted.\n(d) Equitable Remedies. I agree that it would be impossible or inadequate to measure and calculate the Company’s damages from my\nbreach of Sections 2, 3, 5, 6 and 7 of this Agreement. Accordingly, I agree that if I breach any such Section, the Company will have available, in\naddition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or\nthreatened breach and to specific performance of any such provision of this Agreement. I further agree that no bond or other security shall be\nrequired in obtaining such equitable relief and I hereby consent to the issuance of such injunction and to the ordering of specific performance.\n-5-\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local, state\nor federal administrative body such as the Equal Employment Opportunity Commission or the Workers’ Compensation Commission. This\nAgreement does, however, preclude me from pursuing court action regarding any such claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress or\nundue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have asked any\nquestions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that I AM\nWAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice of an attorney of my choice\nbefore signing this Agreement.\n15. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE\nOF TEXAS WITHOUT REGARD FOR CONFLICTS OF LAWS PRINCIPLES. I HEREBY EXPRESSLY CONSENT TO THE PERSONAL\nJURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN TEXAS FOR ANY LAWSUIT FILED THERE AGAINST ME BY\nTHE COMPANY CONCERNING MY EMPLOYMENT OR THE TERMINATION OF MY EMPLOYMENT OR ARISING FROM OR\nRELATING TO THIS AGREEMENT.\n(b) Entire Agreement. This Agreement, together with the Exhibits herein, sets forth the entire agreement and understanding between the\nCompany and me relating to the subject matter herein and supersedes all prior discussions or representations between us, including, but not limited\nto, any representations made during my interview(s) or relocation negotiations, whether written or oral, and any previously executed proprietary\ninformation agreements. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing signed by the Company’s Chief Executive Officer or President and me. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law then the remaining provisions will continue\nin full force and effect.\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and\nwill be for the benefit of the Company, its successors and its assigns.\n(e) Waiver. Waiver by the Company of a breach of any provision of this Agreement will not operate as a waiver of any other or\nsubsequent breach.\n(f) Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with the\nCompany.\n(g) Construction. The language used in this Agreement will be deemed to by the language chosen by the parties to express their mutual\nintent and no rules of strict construction will be applied against either party.\n(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all of which\ntogether shall constitute one agreement.\n16. I acknowledge and agree to each of the following items:\n(a) I am executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else; and\n(b) I have carefully read this Agreement. I have asked any questions needed for me to understand the terms, consequences and binding\neffect of this Agreement and fully understand them; and\n-6-\n(c) I sought the advice of an attorney of my choice if I wanted to before signing this Agreement.\n[Remainder of this page intentionally left blank]\n-7-\nIN WITNESS WHEREOF, the parties have executed this Agreement on the day, month and year first set forth below, to be effective as of the\nEffective Date.\nDate:\n.\n.\nMAVENIR SYSTEMS, INC.\n“Employee”\nBy:\nSignature of Employee\nIts:\nType or Print Name of Employee\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION A SSIGNMENT AGREEMENT SIGNATURE PAGE\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nEXHIBIT B\nMAVENIR SYSTEMS, INC.\nTERMINATION CERTIFICATION\nI certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Mavenir Systems, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s Employment, Confidential Information, and Invention Assignment\nAgreement signed by me, including, but not limited to, the reporting of any Inventions or Other Inventions (as such terms are defined therein).\nI confirm my agreements contained in Section 2 (Confidential Information), Section 3 (Inventions), Section 5 (Solicitation of Employees),\nSection 6 (Interference), and Section 7 (Covenant Not to Compete) of the Employment, Confidential Information, and Invention Assignment\nAgreement.\nDate:\n(Employee’s Signature)\n(Type/Print Employee’s Name)\nEXHIBIT C\nMAVENIR SYSTEMS, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Mavenir Systems, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the\nhighest principles of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or\ngive the appearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising\nsituations which must be avoided. Any exceptions must be reported to the Chief Executive Officer or President and written approval for continuation\nmust be obtained\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The Employment, Confidential Information,\nand Invention Assignment Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.
493ef7e50f4c6d6d506180e77608f9bb.pdf	effective_date jurisdiction party term	EX-10 .3 16 exhibit10_3release.htm MUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT TO SUE, WAIVER, AND NON-\nDISCLOSURE AGREEMENT BETWEEN CORPSENSE CONSULTING AND CADDYSTATS, INC.\nExhibit 10.3\nMUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT\nTO SUE, WAIVER, AND NON-DISCLOSURE AGREEMENT (“Agreement”)\nWHEREAS, Corpsense Consulting., collectively and on behalf of all successors, heirs, executors, administrators, legal\nrepresentatives, and assigns (hereinafter referred to collectively as “Corpsense”), and Caddystats, Inc., and their successors and\nlegal representatives and (hereinafter referred to collectively as the “Company”), have reached an agreement with respect to all\nmatters relating to the debts for services rendered to the Company, including but not limited bookkeeping services and any and all\nagreements, understandings or commitments Corpsense may have had with the Company up until even date herewith;\nNOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, Corpsense and Company\nagree as follows:\n1. Full Satisfaction. Corpsense and Company, by entering into this Agreement, accept the benefits and covenants to be\nconferred hereunder in full and complete satisfaction of any and all asserted and unasserted debts and claims of any kind or\ndescription against Company and Corpsense as of the date of this Agreement, including, but not limited to, any asserted and\nunasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and\nState, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and\nExchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware\nCode, Title 8 of the Delaware Code and any other “blue sky law”, local ordinance, and/or other duty and/or other corporate\nrelated obligation as well as any claims arising from tort, �ortuous course of conduct, fraud, contract (including but not\nlimited to any written, oral, or implied contract), obligations of “good faith,” public policy, statute, common law, equity, and\nall claims for monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n2. Release. In consideration of the benefits, covenants and undertakings above, Corpsense and Company hereby release and\ndischarge the other from any and all liability, and waive any and all rights of any kind and description that Corpsense or\nCompany has or may have against the other as of the date of this Agreement including, but not limited to, any asserted and\nunasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and\nState, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and\nExchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware\nCode, Title 8 of the Delaware Code and any other “blue sky law”, local ordinance, and/or other duty and/or other corporate\nrelated\nobligation as well as any claims arising from tort, �ortuous course of conduct, fraud, contract (including but not limited to\nany written, oral, or implied contract), obligations of “good faith,” public policy, statute, common law, equity, and all claims\nfor monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n3. Non-Disparagement. Corpsense and Company each agree that except, for truthful statements in any proceeding to enforce\nthis Agreement or pursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in\nwriting) that becomes or reasonably could be expected to become publicly known, or instigate, assist or participate in the\nmaking or publication of any such statement, which would libel, slander or disparage (whether or not such disparagement\nlegally constitutes libel or slander) the other or, with respect to Company or Corpsense, any of their affiliates or any other\nentity or person within Company or Corpsense or their affiliates, any of their affairs or operations, or the reputations of any of\ntheir past or present officers, directors, agents, representatives and employees.\n4. Unauthorized Disclosure. Without the prior written consent of Caddystats, Inc. and Corpsense except to the extent required\npursuant to a valid Subpoena or Court Order from an appropriate government agency, in which event, Corpsense and\nCompany shall use reasonable efforts to consult with Caddystats, Inc. and Corpsense prior to responding to any such valid\nOrder or Subpoena, Corpsense and Company shall not disclose any information regarding this Agreement, agree to keep\nconfidential and not disclose to any third party the terms and conditions of this Agreement, the existence of this Agreement, or\nany of the negotiations and discussions that preceded its making, except as follows in which cases Corpsense and Company\nwill nevertheless use reasonable efforts to seek confidential treatment by any receiving party: (i) as is necessary to effectuate\nany term or provision of this Agreement, including any subsequent litigation to enforce this Agreement, except that Corpsense\nand Company shall take all reasonable steps to maintain the confidentiality of this information including filing documents\nunder seal and entry of appropriate protective orders; (ii) to Corpsense’s and Company’s accountants or lawyers; (iii) as\nrequired by law, and (iv) as required by any court order upon notice to the other party sufficiently in advance of such\ndisclosure to permit it to seek a protective order.\n5. No Admission of Liability. By entering into this Agreement, Corpsense and Company do not admit to any liability,\nwrongdoing, breach of any contract, commission of any tort or the violation of any statute or law alleged by the other to have\nbeen violated or otherwise.\n6. Entire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing\nbetween Corpsense and Company as of the date hereof and may not be modified except by a suitable writing signed by both\nCorpsense and Company. This Agreement has been entered into by Corpsense and Company voluntarily, knowingly, and upon\nadvice of counsel.\nIf any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect.\n7. Injunctive Relief; Attorneys Fees. Each party hereto acknowledges that a violation of such party’s obligations under this\nAgreement would cause irreparable damage to the other parties hereto. Accordingly, each party agrees that each other parties\nhereto are entitled to injunctive relief from any court of competent jurisdiction for any actual or threatened violation of this\nAgreement in addition to any other remedies it may have.\n8. Execution. Corpsense and Company acknowledge that they have had reasonable time from the receipt of this document to\nreview it. Upon execution, Corpsense and Company or their attorney must promptly send this document by certified mail or\nfacsimile to the Company. A copy may be retained by Corpsense and Company.\n9. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nDelaware. An action for breach of this Agreement may be brought in any court of competent jurisdiction located in Delaware.\n10. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and\nassigns of the parties hereto.\nTHE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 2\nnd day of February, 2009.\nCORPSENSE CONSULTING, INC.\nBy: /s/ Marc Cremini\nName:\nMarc Cremini\nDate: 02/02/2009\nCADDYSTATS, INC.\nBy; /s/ Micheal P. Nugent\nName: MICHEAL P. NUGENT\nTitle: President\nDate: 02/02/2009	EX-10.3 16 exhibit10_3release.htm MUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT TO SUE, WAIVER, AND NON-\nDISCLOSURE AGREEMENT BETWEEN CORPSENSE CONSULTING AND CADDYSTATS, INC.\nExhibit 10.3\nMUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT\nTO SUE, WAIVER, AND NON-DISCLOSURE AGREEMENT (“Agreement”)\nWHEREAS, Corpsense Consulting., collectively and on behalf of all successors, heirs, executors, administrators, legal representatives, and assigns (hereinafter referred to collectively as “Corpsense”), and Caddystats, Inc., and their successors and legal representatives and (hereinafter referred to collectively as the “Company”), have reached an agreement with respect to all matters relating to the debts for services rendered to the Company, including but not limited bookkeeping services and any and all agreements, understandings or commitments Corpsense may have had with the Company up until even date herewith;\nNOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, Corpsense and Company agree as follows:\n1. Full Satisfaction. Corpsense and Company, by entering into this Agreement, accept the benefits and covenants to be conferred hereunder in full and complete satisfaction of any and all asserted and unasserted debts and claims of any kind or description against Company and Corpsense as of the date of this Agreement, including, but not limited to, any asserted and unasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and State, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and Exchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware Code, Title 8 of the Delaware Code and any other “blue sky law”, local ordinance, and/or other duty and/or other corporate related obligation as well as any claims arising from tort, €ortuous course of conduct, fraud, contract (including but not limited to any written, oral, or implied contract), obligations of “good faith,” public policy, statute, common law, equity, and all claims for monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n2. Release. In consideration of the benefits, covenants and undertakings above, Corpsense and Company hereby release and discharge the other from any and all liability, and waive any and all rights of any kind and description that Corpsense or Company has or may have against the other as of the date of this Agreement including, but not limited to, any asserted and unasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and State, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and Exchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware Code, Title 8 of the Delaware Code and any other “blue sky law”, local ordinance, and/or other duty and/or other corporate related\nobligation as well as any claims arising from tort, €ortuous course of conduct, fraud, contract (including but not limited to\nany written, oral, or implied contract), obligations of “good faith,” public policy, statute, common law, equity, and all claims\nfor monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\nNon-Disparagement. Corpsense and Company each agree that except, for truthful statements in any proceeding to enforce\nthis Agreement or pursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in\nwriting) that becomes or reasonably could be expected to become publicly known, or instigate, assist or participate in the\nmaking or publication of any such statement, which would libel, slander or disparage (whether or not such disparagement\nlegally constitutes libel or slander) the other or, with respect to Company or Corpsense, any of their affiliates or any other\nentity or person within Company or Corpsense or their affiliates, any of their affairs or operations, or the reputations of any of\ntheir past or present officers, directors, agents, representatives and employees.\nUnauthorized Disclosure. Without the prior written consent of Caddystats, Inc. and Corpsense except to the extent required\npursuant to a valid Subpoena or Court Order from an appropriate government agency, in which event, Corpsense and\nCompany shall use reasonable efforts to consult with Caddystats, Inc. and Corpsense prior to responding to any such valid\nOrder or Subpoena, Corpsense and Company shall not disclose any information regarding this Agreement, agree to keep\nconfidential and not disclose to any third party the terms and conditions of this Agreement, the existence of this Agreement, or\nany of the negotiations and discussions that preceded its making, except as follows in which cases Corpsense and Company\nwill nevertheless use reasonable efforts to seek confidential treatment by any receiving party: (i) as is necessary to effectuate\nany term or provision of this Agreement, including any subsequent litigation to enforce this Agreement, except that Corpsense\nand Company shall take all reasonable steps to maintain the confidentiality of this information including filing documents\nunder seal and entry of appropriate protective orders; (ii) to Corpsense’s and Company’s accountants or lawyers; (iii) as\nrequired by law, and (iv) as required by any court order upon notice to the other party sufficiently in advance of such\ndisclosure to permit it to seek a protective order.\nNo Admission of Liability. By entering into this Agreement, Corpsense and Company do not admit to any liability,\nwrongdoing, breach of any contract, commission of any tort or the violation of any statute or law alleged by the other to have\nbeen violated or otherwise.\nEntire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing\nbetween Corpsense and Company as of the date hereof and may not be modified except by a suitable writing signed by both\nCorpsense and Company. This Agreement has been entered into by Corpsense and Company voluntarily, knowingly, and upon\nadvice of counsel.\n10. If any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect.\nInjunctive Relief; Attorneys Fees. Each party hereto acknowledges that a violation of such party’s obligations under this\nAgreement would cause irreparable damage to the other parties hereto. Accordingly, each party agrees that each other parties\nhereto are entitled to injunctive relief from any court of competent jurisdiction for any actual or threatened violation of this\nAgreement in addition to any other remedies it may have.\nExecution. Corpsense and Company acknowledge that they have had reasonable time from the receipt of this document to\nreview it. Upon execution, Corpsense and Company or their attorney must promptly send this document by certified mail or\nfacsimile to the Company. A copy may be retained by Corpsense and Company.\nGoverning Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nDelaware. An action for breach of this Agreement may be brought in any court of competent jurisdiction located in Delaware.\nSuccessors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and\nassigns of the parties hereto.\nTHE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this ond day of February, 2009.\nCORPSENSE CONSULTING, INC.\nBy: /s/ Marc Cremini\nName: Marc Cremini\nDate: 02/02/2009\nCADDYSTATS, INC.\nBy; /s/ Micheal P. Nugent\nName: MICHEAL P. NUGENT\nTitle: President\nDate: 02/02/2009	EX-10.3 16 exhibit10_3release.htm MUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT TO SUE, WAIVER, AND NON-\nDISCLOSURE AGREEMENT BETWEEN CORPSENSE CONSULTING AND CADDYSTATS, INC.\nExhibit 10.3\nMUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT\nTO SUE, WAIVER, AND NON-DISCLOSURE AGREEMENT ("Agreement")\nWHEREAS, Corpsense Consulting., collectively and on behalf of all successors, heirs, executors, administrators, legal\nrepresentatives, and assigns (hereinafter referred to collectively as "Corpsense"), and Caddystats, Inc., and their successors and\nlegal representatives and (hereinafter referred to collectively as the "Company"), have reached an agreement with respect to all\nmatters relating to the debts for services rendered to the Company, including but not limited bookkeeping services and any and all\nagreements, understandings or commitments Corpsense may have had with the Company up until even date herewith;\nNOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, Corpsense and Company\nagree as follows:\n1. Full Satisfaction. Corpsense and Company, by entering into this Agreement, accept the benefits and covenants to be\nconferred hereunder in full and complete satisfaction of any and all asserted and unasserted debts and claims of any kind or\ndescription against Company and Corpsense as of the date of this Agreement, including, but not limited to, any asserted and\nunasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and\nState,\nthe\nSecurities\nAct of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities\nand\nExchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware\nCode, Title 8 of the Delaware Code and any other "blue sky law", local ordinance, and/or other duty and/or other corporate\nrelated obligation as well as any claims arising from tort, ?ortuous course of conduct, fraud, contract (including but not\nlimited to any written, oral, or implied contract), obligations of "good faith," public policy, statute, common law, equity, and\nall claims for monetary and equitable relief, punitive and compensatory relief, and attorneys' fees and costs.\n2.\nRelease. In consideration of the benefits, covenants and undertakings above, Corpsense and Company hereby release and\ndischarge the other from any and all liability, and waive any and all rights of any kind and description that Corpsense or\nCompany has or may have against the other as of the date of this Agreement including, but not limited to, any asserted and\nunasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and\nState, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and\nExchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware\nCode, Title 8 of the Delaware Code and any other "blue sky law", local ordinance, and/or other duty and/or other corporate\nrelated\nobligation as well as any claims arising from tort, ?ortuous course of conduct, fraud, contract (including but not limited to\nany written, oral, or implied contract), obligations of "good faith," public policy, statute, common law, equity, and all claims\nfor monetary and equitable relief, punitive and compensatory relief, and attorneys' fees and costs.\n3. Non-Disparagement. Corpsense and Company each agree that except, for truthful statements in any proceeding to enforce\nthis Agreement or pursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in\nwriting) that becomes or reasonably could be expected to become publicly known, or instigate, assist or participate in the\nmaking or publication of any such statement, which would libel, slander or disparage (whether or not such disparagement\nlegally constitutes libel or slander) the other or, with respect to Company or Corpsense, any of their affiliates or any other\nentity or person within Company or Corpsense or their affiliates, any of their affairs or operations, or the reputations of any of\ntheir past or present officers, directors, agents, representatives and employees.\n4. Unauthorized Disclosure. Without the prior written consent of Caddystats, Inc. and Corpsense except to the extent required\npursuant to a valid Subpoena or Court Order from an appropriate government agency, in which event, Corpsense and\nCompany shall use reasonable efforts to consult with Caddystats, Inc. and Corpsense prior to responding to any such valid\nOrder or Subpoena, Corpsense and Company shall not disclose any information regarding this Agreement, agree to keep\nconfidential and not disclose to any third party the terms and conditions of this Agreement, the existence of this Agreement, or\nany of the negotiations and discussions that preceded its making, except as follows in which cases Corpsense and Company\nwill nevertheless use reasonable efforts to seek confidential treatment by any receiving party: (i) as is necessary to effectuate\nany term or provision of this Agreement, including any subsequent litigation to enforce this Agreement, except that Corpsense\nand Company shall take all reasonable steps to maintain the confidentiality of this information including filing documents\nunder seal and entry of appropriate protective orders; (ii) to Corpsense's and Company's accountants or lawyers; (iii)\nas\nrequired by law, and (iv) as required by any court order upon notice to the other party sufficiently in advance of such\ndisclosure to permit it to seek a protective order.\n5. No Admission of Liability. By entering into this Agreement, Corpsense and Company do not admit to any liability,\nwrongdoing, breach of any contract, commission of any tort or the violation of any statute or law alleged by the other to have\nbeen violated or otherwise.\n6.\nEntire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing\nbetween Corpsense and Company as of the date hereof and may not be modified except by a suitable writing signed by both\nCorpsense and Company. This Agreement has been entered into by Corpsense and Company voluntarily, knowingly, and upon\nadvice of counsel.\nIf any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect.\n7.\nInjunctive Relief; Attorneys Fees. Each party hereto acknowledges that a violation of such party's obligations under this\nAgreement would cause irreparable damage to the other parties hereto. Accordingly, each party agrees that each other parties\nhereto are entitled to injunctive relief from any court of competent jurisdiction for any actual or threatened violation of this\nAgreement in addition to any other remedies it may have.\n8. Execution. Corpsense and Company acknowledge that they have had reasonable time from the receipt of this document to\nreview it. Upon execution, Corpsense and Company or their attorney must promptly send this document by certified mail or\nfacsimile to the Company. A copy may be retained by Corpsense and Company.\n9. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nDelaware. An action for breach of this Agreement may be brought in any court of competent jurisdiction located in Delaware.\n10. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and\nassigns of the parties hereto.\nTHE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 2nd day of February, 2009.\nCORPSENSE CONSULTING, INC.\nBy:\n/s/ Marc Cremini\nName:\nMarc Cremini\nDate: 02/02/2009\nCADDYSTATS, INC.\nBy; /s/ Micheal P. Nugent\nName: MICHEAL P. NUGENT\nTitle: President\nDate: 02/02/2009	EX-10 .3 16 exhibit10_3release.htm MUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT TO SUE, WAIVER, AND NON-\nDISCLOSURE AGREEMENT BETWEEN CORPSENSE CONSULTING AND CADDYSTATS, INC.\nExhibit 10.3\nMUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT\nTO SUE, WAIVER, AND NON-DISCLOSURE AGREEMENT (“Agreement”)\nWHEREAS, Corpsense Consulting., collectively and on behalf of all successors, heirs, executors, administrators, legal\nrepresentatives, and assigns (hereinafter referred to collectively as “Corpsense”), and Caddystats, Inc., and their successors and\nlegal representatives and (hereinafter referred to collectively as the “Company”), have reached an agreement with respect to all\nmatters relating to the debts for services rendered to the Company, including but not limited bookkeeping services and any and all\nagreements, understandings or commitments Corpsense may have had with the Company up until even date herewith;\nNOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, Corpsense and Company\nagree as follows:\n1. Full Satisfaction. Corpsense and Company, by entering into this Agreement, accept the benefits and covenants to be\nconferred hereunder in full and complete satisfaction of any and all asserted and unasserted debts and claims of any kind or\ndescription against Company and Corpsense as of the date of this Agreement, including, but not limited to, any asserted and\nunasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and\nState, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and\nExchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware\nCode, Title 8 of the Delaware Code and any other “blue sky law”, local ordinance, and/or other duty and/or other corporate\nrelated obligation as well as any claims arising from tort, �ortuous course of conduct, fraud, contract (including but not\nlimited to any written, oral, or implied contract), obligations of “good faith,” public policy, statute, common law, equity, and\nall claims for monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n2. Release. In consideration of the benefits, covenants and undertakings above, Corpsense and Company hereby release and\ndischarge the other from any and all liability, and waive any and all rights of any kind and description that Corpsense or\nCompany has or may have against the other as of the date of this Agreement including, but not limited to, any asserted and\nunasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and\nState, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and\nExchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware\nCode, Title 8 of the Delaware Code and any other “blue sky law”, local ordinance, and/or other duty and/or other corporate\nrelated\nobligation as well as any claims arising from tort, �ortuous course of conduct, fraud, contract (including but not limited to\nany written, oral, or implied contract), obligations of “good faith,” public policy, statute, common law, equity, and all claims\nfor monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n3. Non-Disparagement. Corpsense and Company each agree that except, for truthful statements in any proceeding to enforce\nthis Agreement or pursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in\nwriting) that becomes or reasonably could be expected to become publicly known, or instigate, assist or participate in the\nmaking or publication of any such statement, which would libel, slander or disparage (whether or not such disparagement\nlegally constitutes libel or slander) the other or, with respect to Company or Corpsense, any of their affiliates or any other\nentity or person within Company or Corpsense or their affiliates, any of their affairs or operations, or the reputations of any of\ntheir past or present officers, directors, agents, representatives and employees.\n4. Unauthorized Disclosure. Without the prior written consent of Caddystats, Inc. and Corpsense except to the extent required\npursuant to a valid Subpoena or Court Order from an appropriate government agency, in which event, Corpsense and\nCompany shall use reasonable efforts to consult with Caddystats, Inc. and Corpsense prior to responding to any such valid\nOrder or Subpoena, Corpsense and Company shall not disclose any information regarding this Agreement, agree to keep\nconfidential and not disclose to any third party the terms and conditions of this Agreement, the existence of this Agreement, or\nany of the negotiations and discussions that preceded its making, except as follows in which cases Corpsense and Company\nwill nevertheless use reasonable efforts to seek confidential treatment by any receiving party: (i) as is necessary to effectuate\nany term or provision of this Agreement, including any subsequent litigation to enforce this Agreement, except that Corpsense\nand Company shall take all reasonable steps to maintain the confidentiality of this information including filing documents\nunder seal and entry of appropriate protective orders; (ii) to Corpsense’s and Company’s accountants or lawyers; (iii) as\nrequired by law, and (iv) as required by any court order upon notice to the other party sufficiently in advance of such\ndisclosure to permit it to seek a protective order.\n5. No Admission of Liability. By entering into this Agreement, Corpsense and Company do not admit to any liability,\nwrongdoing, breach of any contract, commission of any tort or the violation of any statute or law alleged by the other to have\nbeen violated or otherwise.\n6. Entire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing\nbetween Corpsense and Company as of the date hereof and may not be modified except by a suitable writing signed by both\nCorpsense and Company. This Agreement has been entered into by Corpsense and Company voluntarily, knowingly, and upon\nadvice of counsel.\nIf any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect.\n7. Injunctive Relief; Attorneys Fees. Each party hereto acknowledges that a violation of such party’s obligations under this\nAgreement would cause irreparable damage to the other parties hereto. Accordingly, each party agrees that each other parties\nhereto are entitled to injunctive relief from any court of competent jurisdiction for any actual or threatened violation of this\nAgreement in addition to any other remedies it may have.\n8. Execution. Corpsense and Company acknowledge that they have had reasonable time from the receipt of this document to\nreview it. Upon execution, Corpsense and Company or their attorney must promptly send this document by certified mail or\nfacsimile to the Company. A copy may be retained by Corpsense and Company.\n9. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nDelaware. An action for breach of this Agreement may be brought in any court of competent jurisdiction located in Delaware.\n10. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and\nassigns of the parties hereto.\nTHE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 2\nnd day of February, 2009.\nCORPSENSE CONSULTING, INC.\nBy: /s/ Marc Cremini\nName:\nMarc Cremini\nDate: 02/02/2009\nCADDYSTATS, INC.\nBy; /s/ Micheal P. Nugent\nName: MICHEAL P. NUGENT\nTitle: President\nDate: 02/02/2009
495f7d16921a1c8531be0844db0828a4.pdf	effective_date jurisdiction party	MUTUAL CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT made this 1st day of February, 2011, by and between The Citizens Bank of Logan, an\nOhio banking corporation having its principal offices at 188 West Main Street, Logan, Ohio 43138 (the “Bank”), and John\nDemmler, an individual having an address at Logan, Ohio 43138 (Demmler). As used in this Agreement, “Parties” shall\nrefer to the Bank and Demmler collectively, and “Party” shall refer to the Bank and Demmler individually.\nWITNESSETH:\nWHEREAS, the Parties desire to enter into negotiations regarding the potential employment of Demmler by\nthe Bank (the “Negotiations”); and\nWHEREAS, in connection with the Negotiations, Demmler may receive certain non-public or confidential\ninformation regarding the Bank and its affiliates, including, without limitation, information relating to the management,\noperation, financial condition and/or regulation of the Bank and its affiliates (collectively, “Confidential Information”); and\nWHEREAS, as a condition to furnishing any Confidential Information to Demmler, the Bank is requiring that\nDemmler agree to keep such Confidential Information confidential; and\nWHEREAS, as a condition to entering into the Negotiations, Demmler is requiring that the Bank agree to\nkeep the Negotiations (including the existence thereof) confidential;\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement,\nthe Parties agree as follows:\n1. Demmler agrees to maintain as confidential any and all Confidential Information furnished to him/her by\nthe Bank or its representatives, including, without limitation, its directors, officers, employees, agents, accountants,\nconsultants, counsel, advisors and regulators (collectively, “Representatives”), and shall not disclose such Confidential\nInformation to any other person; provided, however, that the obligation to maintain the confidentiality of such Confidential\nInformation shall not extend to information which (i) is or becomes generally available to the public other than as a result\nof a disclosure by Demmler (ii) is or becomes available to Demmler from a source other than the Bank or its\nRepresentatives, provided that such source is not, and was not, bound by a confidentiality agreement with the Bank or its\nRepresentatives, or (iii) was available to Demmler on a nonconfidential basis prior to disclosure.\n2. Notwithstanding any provision of this Agreement to the contrary, if Demmler is requested or required in\na judicial, administrative or governmental proceeding to disclose (by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) any Confidential Information contemplated by this Agreement,\nDemmler agrees to provide the Bank with Prompt written notice of such request and all related proceedings so the Bank\nmay seek an appropriate protective order or take any other action. If, as a result of any such request or requirement,\nDemmler is compelled to disclose Confidential Information to any tribunal or else stand liable for contempt or other\ncensure or penalty, Demmler may disclose only that portion of the Confidential Information which he/she is advised by\nlegal counsel in writing is legally required to be disclosed, (ii) shall use his/her best efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information, and (iii) shall not be liable for such disclosure if\nDemmler complies with the notice provision of this paragraph, unless such disclosure was caused by, or resulted from, a\nprevious disclosure by Demmler not permitted by this Agreement.\n3. In the event that the Negotiations do not result in the employment of Demmler by the Bank, upon the\nrequest of the Bank, Demmler shall promptly deliver to the Bank all Confidential Information in his/her possession or\ncontrol, without retaining any copy whatsoever. In the event such a request is made, Demmler shall deliver to the Bank a\ncertificate signed by him/her certifying that all such Confidential Information has either (i) been delivered to the Bank or\n(ii) been destroyed.\n4. Without the prior written consent of Demmler the Bank agrees that, until Demmler is employed by the\nBank, it will not, and will direct its Representatives not to, disclose to any person the fact that the Negotiations are taking\nplace or any of the terms, conditions or other facts with respect to the Negotiations.\n5.\nEach Party agrees that money damages would not be an adequate remedy for any breach of this\nAgreement and that each Party is entitled to specific performance and injunctive relief in the event of any breach of the\nprovisions of this Agreement and that such Party shall not oppose the granting of such relief. Such remedies shall not be\ndeemed to be the exclusive remedies for the breach off this Agreement, but shall be in addition to all other remedies\navailable at law or in equity.\n6. This Agreement shall inure to the benefit of each Party and shall be enforceable by each Party and its\nrespective successors and assigns. This Agreement and any portion or provision hereof may be modified or waived only\nby an express written modification or waiver signed by the Parties. A Party’s failure or delay to exercise any right, power,\nor privilege (collectively, “Rights”) under this Agreement shall not operate as a waiver of such Right. A Party’s single or\npartial exercise of any Right shall not preclude any further exercise of that Right or any other Right.\n7. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio.\nThis Agreement may be executed in counterparts. Any judicial proceeding brought against a Party regarding any dispute\narising out of this Agreement or any matter related hereto may be brought in the courts of the State of Ohio. By execution\nand delivery of this Agreement, each Party accepts the exclusive jurisdiction of such courts and irrevocably agrees to be\nbound by any judgment rendered thereby in connection with this Agreement or any matter related hereto.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Confidentiality Agreement to be\nexecuted on the day and year set forth in the first paragraph above.\n/s/ John E. Demmler\nTHE CITIZENS BANK OF LOGAN\nJohn Demmler\n/s/ Bryan K. Starner\nBy: Bryan K. Starner\nTitle: President	MUTUAL CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT made this 1_st day of February, 2011, by and between The Citizens Bank of Logan, an\nOhio banking corporation having its principal offices at 188 West Main Street, Logan, Ohio 43138 (the “Bank”), and J ohn\nDemmler, an individual having an address at Logan, Ohio 43138 (Demmler). As used in this Agreement, “Parties” shall\nreferto the Bank and Demmler collectively, and “Party” shall refer to the Bank and Demmler individually.\nWITNESSETH:\nWHEREAS, the Parties desire to enter into negotiations regarding the potential employment of Demmler by\nthe Bank (the “Negotiations”); and\nWHEREAS, in connection with the Negotiations, Demmler may receive certain non-public or confidential\ninformation regarding the Bank and its affiliates, including, without limitation, information relating to the management,\noperation, financial condition and/or regulation of the Bank and its affiliates (collectively, “Confidential Information”); and\nWHEREAS, as a condition to furnishing any Confidential Information to Demmler, the Bank is requiring that\nDemmler agree to keep such Confidential Information confidential; and\nWHEREAS, as a condition to entering into the Negotiations, Demmler is requiring that the Bank agree to\nkeep the Negotiations (including the existence thereof) confidential;\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement,\nthe Parties agree as follows:\n1. Demmler agrees to maintain as confidential any and all Confidential Information furnished to him/her by\nthe Bank or its representatives, including, without limitation, its directors, officers, employees, agents, accountants,\nconsultants, counsel, advisors and regulators (collectively, “Representatives”), and shall not disclose such Confidential\nInformation to any other person; provided, however, that the obligation to maintain the confidentiality of such Confidential\nInformation shall not extend to information which (i) is or becomes generally available to the public other than as a result\nof a disclosure by Demmler (ii) is or becomes available to Demmler from a source other than the Bank or its\nRepresentatives, provided that such source is not, and was not, bound by a confidentiality agreement with the Bank or its\nRepresentatives, or (iii) was available to Demmler on a nonconfidential basis priorto disclosure.\n2. Notwithstanding any provision of this Agreement to the contrary, if Demmler is requested or required in\na judicial, administrative or governmental proceeding to disclose (by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) any Confidential Information contemplated by this Agreement,\nDemmler agrees to provide the Bank with Prompt written notice of such request and all related proceedings so the Bank\nmay seek an appropriate protective order or take any other action. If, as a result of any such request or requirement,\nDemmler is compelled to disclose Confidential Information to any tribunal or else stand liable for contempt or other\ncensure or penalty, Demmler may disclose only that portion of the Confidential Information which he/she is advised by\nlegal counsel in writing is legally required to be disclosed, (ii) shall use his/her best efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information, and (iii) shall not be liable for such disclosure if\nDemmler complies with the notice provision of this paragraph, unless such disclosure was caused by, or resulted from, a\nprevious disclosure by Demmler not permitted by this Agreement.\n3. In the event that the Negotiations do not result in the employment of Demmler by the Bank, upon the\nrequest of the Bank, Demmler shall promptly deliver to the Bank all Confidential Information in his/her possession or\ncontrol, without retaining any copy whatsoever. In the event such a request is made, Demmler shall deliver to the Bank a\ncertificate signed by him/her certifying that all such Confidential Information has either (i) been delivered to the Bank or\n(ii) been destroyed.\n4. Without the prior written consent of Demmler the Bank agrees that, until Demmler is employed by the\nBank, it will not, and will direct its Representatives not to, disclose to any person the fact that the Negotiations are taking\nplace or any of the terms, conditions or other facts with respect to the Negotiations.\n5. Each Party agrees that money damages would not be an adequate remedy for any breach of this\nAgreement and that each Party is entitled to specific performance and injunctive relief in the event of any breach of the\nprovisions of this Agreement and that such Party shall not oppose the granting of such relief. Such remedies shall not be\ndeemed to be the exclusive remedies for the breach off this Agreement, but shall be in addition to all other remedies\navailable at law or in equity.\n6. This Agreement shall inure to the benefit of each Party and shall be enforceable by each Party and its\nrespective successors and assigns. This Agreement and any portion or provision hereof may be modified or waived only\nby an express written modification or waiver signed by the Parties. A Party's failure or delay to exercise any right, power,\nor privilege (collectively, “Rights”) under this Agreement shall not operate as a waiver of such Right. A Party's single or\npartial exercise of any Right shall not preclude any further exercise of that Right or any other Right.\n7. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio.\nThis Agreement may be executed in counterparts. Anyjudicial proceeding brought against a Party regarding any dispute\narising out of this Agreement or any matter related hereto may be brought in the courts of the State of Ohio. By execution\nand delivery of this Agreement, each Party accepts the exclusive jurisdiction of such courts and irrevocably agrees to be\nbound by any judgment rendered thereby in connection with this Agreement or any matter related hereto.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Confidentiality Agreement to be\nexecuted on the day and year set forth in the first paragraph above.\n/s/J ohn E. Demmler THE CITIZENS BANK OF LOGAN\nlohn Demmler\n/s/ Bryan K. Starner\ny: ryan . arner\nTitle: President	MUTUAL CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT made this lst day of February, 2011, by and between The Citizens Bank of Logan, an\nOhio banking corporation having its principal offices at 188 West Main Street, Logan, Ohio 43138 (the "Bank"), and J ohn\nDemmler, an individua having an address at Logan, Ohio 43138 (Demmler). As used in this Agreement, "Parties" shall\nrefer to the Bank and Demmler collectively, and "Party" shall refer to the Bank and Demmler individually.\nWITNESSETH:\nWHEREAS, the Parties desire to enter into negotiations regarding the potentia employment of Demmler by\nthe Bank (the "Negotiations"); and\nWHEREAS, in connection with the Negotiations, Demmler may receive certain non-public or confidential\ninformation regarding the Bank and its affiliates, including, without limitation, information relating to the management,\noperation, financial condition and/or regulation of the Bank and its affiliates (collectively, "Confidential Information"); and\nWHEREAS, as a condition to furnishing any Confidential Information to Demmler, the Bank is requiring that\nDemmler agree to keep such Confidential Information confidential; and\nWHEREAS, as a condition to entering into the Negotiations, Demmler is requiring that the Bank agree to\nkeep the Negotiations (including the existence thereof) confidential;\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement\nthe arties agree as follows:\n1.\nDemmler agrees to maintain as confidentia any and all Confidential Information furnished to him/her by\nthe Bank or its representatives, including, without limitation, its directors, officers, employees, agents, accountants,\nconsultants,\ncounsel,\nadvisors\nand\nregulators\n(collectively,\n"Representatives"),\nand\nshall\nnot\ndisclose\nsuch\nConfidential\nInformation to any other person; provided, however, that the obligation to maintain the confidentiality of such Confidential\nInformation shall not extend to information which (i) is or becomes generally available to the public other than as a result\nof a disclosure by Demmler (ii) is or becomes available to Demmler from a source other than the Bank or its\nRepresentatives provided that such source is not, and was not, bound by a confidentiality agreement with the Bank or its\nRepresentatives, or (iii) was available to Demmler on a nonconfidential basis prior to disclosure.\n2.\nNotwithstanding any provision of this Agreement to the contrary, if Demmler is requested or required in\na judicial, administrative or governmental proceeding to disclose (by deposition, interrogatory, request for documents,\nsubpoena,\ncivil\ninvestigative\ndemand\nor\nsimilar\nprocess)\nany\nConfidential\nInformation\ncontemplated\nby\nthis\nAgreement,\nDemmler agrees to provide the Bank with rompt written notice of such request and all related proceedings so the Bank\nmay seek an appropriate protective order or take any other action. If, as a result of any such request or requirement,\nDemmler is compelled to disclose Confidential Information to any tribunal or else stand liable for contempt or other\ncensure or penalty, Demmler may disclose only that portion of the Confidential Information which he/she is advised by\nlegal counsel in writing is legally required to be disclosed, (ii) shall use his/her best efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information, and (iii) shall not be liable for such disclosure if\nDemmler complies with the notice provision of this paragraph, unless such disclosure was caused by, or resulted from, a\nprevious disclosure by Demmler not permitted by this Agreement\n3.\nIn the event that the Negotiations do not result in the employment of Demmler by the Bank, upon the\nrequest of the Bank, Demmler shall promptly deliver to the Bank all Confidential Information in his/her possession or\ncontrol, without retaining any copy whatsoever. In the event such a request is made, Demmler shall deliver to the Bank a\ncertificate signed by him/her certifying that all such Confidential Information has either (i) been delivered to the Bank or\n(ii) been destroyed.\n4.\nWithout the prior written consent of Demmler the Bank agrees that, until Demmler is employed by the\nBank, it will not, and wil direct its Representatives not to, disclose to any person the fact that the Negotiations are taking\nplace or any of the terms, conditions or other facts with respect to the Negotiations.\n5.\nEach Party agrees that money damages would not be an adequate remedy for any breach of this\nAgreement and that each Party is entitled to specific performance and injunctive relief in the event of any breach of the\nprovisions of this Agreement and that such Party shall not oppose the granting of such relief. Such remedies shall not be\ndeemed to be the exclusive remedies for the breach off this Agreement, but shall be in addition to all other remedies\navailable at law or in equity.\n6. This Agreement shall inure to the benefit of each Party and shall be enforceable by each Party and its\nrespective successors and assigns. This Agreement and any portion or provision hereof may be modified or waived only\nby an express written modification or waiver signed by the Parties. A Party's failure or delay to exercise any right, power,\nor privilege (collectively, "Rights") under this Agreement shall not operate as a waiver of such ight. A Party's single or\npartial exercise of any Right shall not preclude any further exercise of that R ight or any other Right.\n7. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio.\nThis Agreement may be executed in counterparts. Any judicial proceeding brought against a Party regarding any dispute\narising out of this Agreement or any matter related hereto may be brought in the courts of the State of Ohio. By execution\nand delivery of this Agreement, each Party accepts the exclusive jurisdiction of such courts and irrevocably agrees to be\nbound by any judgment rendered thereby in connection with this Agreement or any matter related hereto.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Confidentiality Agreement to be\nexecuted on the day and year set forth in the first paragraph above.\n/s/. ohn E. Demmler\nTHE CITIZENS BANK OF LOGAN\nohn Demmler\n/s/ Bryan K. Starner\nBy:\nBryan K. Starner\nTitle: President	MUTUAL CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT made this 1st day of February, 2011, by and between The Citizens Bank of Logan, an\nOhio banking corporation having its principal offices at 188 West Main Street, Logan, Ohio 43138 (the “Bank”), and John\nDemmler, an individual having an address at Logan, Ohio 43138 (Demmler). As used in this Agreement, “Parties” shall\nrefer to the Bank and Demmler collectively, and “Party” shall refer to the Bank and Demmler individually.\nWITNESSETH:\nWHEREAS, the Parties desire to enter into negotiations regarding the potential employment of Demmler by\nthe Bank (the “Negotiations”); and\nWHEREAS, in connection with the Negotiations, Demmler may receive certain non-public or confidential\ninformation regarding the Bank and its affiliates, including, without limitation, information relating to the management,\noperation, financial condition and/or regulation of the Bank and its affiliates (collectively, “Confidential Information”); and\nWHEREAS, as a condition to furnishing any Confidential Information to Demmler, the Bank is requiring that\nDemmler agree to keep such Confidential Information confidential; and\nWHEREAS, as a condition to entering into the Negotiations, Demmler is requiring that the Bank agree to\nkeep the Negotiations (including the existence thereof) confidential;\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement,\nthe Parties agree as follows:\n1. Demmler agrees to maintain as confidential any and all Confidential Information furnished to him/her by\nthe Bank or its representatives, including, without limitation, its directors, officers, employees, agents, accountants,\nconsultants, counsel, advisors and regulators (collectively, “Representatives”), and shall not disclose such Confidential\nInformation to any other person; provided, however, that the obligation to maintain the confidentiality of such Confidential\nInformation shall not extend to information which (i) is or becomes generally available to the public other than as a result\nof a disclosure by Demmler (ii) is or becomes available to Demmler from a source other than the Bank or its\nRepresentatives, provided that such source is not, and was not, bound by a confidentiality agreement with the Bank or its\nRepresentatives, or (iii) was available to Demmler on a nonconfidential basis prior to disclosure.\n2. Notwithstanding any provision of this Agreement to the contrary, if Demmler is requested or required in\na judicial, administrative or governmental proceeding to disclose (by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) any Confidential Information contemplated by this Agreement,\nDemmler agrees to provide the Bank with Prompt written notice of such request and all related proceedings so the Bank\nmay seek an appropriate protective order or take any other action. If, as a result of any such request or requirement,\nDemmler is compelled to disclose Confidential Information to any tribunal or else stand liable for contempt or other\ncensure or penalty, Demmler may disclose only that portion of the Confidential Information which he/she is advised by\nlegal counsel in writing is legally required to be disclosed, (ii) shall use his/her best efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information, and (iii) shall not be liable for such disclosure if\nDemmler complies with the notice provision of this paragraph, unless such disclosure was caused by, or resulted from, a\nprevious disclosure by Demmler not permitted by this Agreement.\n3. In the event that the Negotiations do not result in the employment of Demmler by the Bank, upon the\nrequest of the Bank, Demmler shall promptly deliver to the Bank all Confidential Information in his/her possession or\ncontrol, without retaining any copy whatsoever. In the event such a request is made, Demmler shall deliver to the Bank a\ncertificate signed by him/her certifying that all such Confidential Information has either (i) been delivered to the Bank or\n(ii) been destroyed.\n4. Without the prior written consent of Demmler the Bank agrees that, until Demmler is employed by the\nBank, it will not, and will direct its Representatives not to, disclose to any person the fact that the Negotiations are taking\nplace or any of the terms, conditions or other facts with respect to the Negotiations.\n5.\nEach Party agrees that money damages would not be an adequate remedy for any breach of this\nAgreement and that each Party is entitled to specific performance and injunctive relief in the event of any breach of the\nprovisions of this Agreement and that such Party shall not oppose the granting of such relief. Such remedies shall not be\ndeemed to be the exclusive remedies for the breach off this Agreement, but shall be in addition to all other remedies\navailable at law or in equity.\n6. This Agreement shall inure to the benefit of each Party and shall be enforceable by each Party and its\nrespective successors and assigns. This Agreement and any portion or provision hereof may be modified or waived only\nby an express written modification or waiver signed by the Parties. A Party’s failure or delay to exercise any right, power,\nor privilege (collectively, “Rights”) under this Agreement shall not operate as a waiver of such Right. A Party’s single or\npartial exercise of any Right shall not preclude any further exercise of that Right or any other Right.\n7. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio.\nThis Agreement may be executed in counterparts. Any judicial proceeding brought against a Party regarding any dispute\narising out of this Agreement or any matter related hereto may be brought in the courts of the State of Ohio. By execution\nand delivery of this Agreement, each Party accepts the exclusive jurisdiction of such courts and irrevocably agrees to be\nbound by any judgment rendered thereby in connection with this Agreement or any matter related hereto.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Confidentiality Agreement to be\nexecuted on the day and year set forth in the first paragraph above.\n/s/ John E. Demmler\nTHE CITIZENS BANK OF LOGAN\nJohn Demmler\n/s/ Bryan K. Starner\nBy: Bryan K. Starner\nTitle: President
4b61ebe0ae19176364a51c755d7941ea.pdf	effective_date jurisdiction party term	EX-10.1 3 dex101.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 10.1\nLOGO\nCost Plus, Inc.\n200 4th Street\nOakland, CA 94607\nTel: (510) 893-7900\nwww.costplusworldmarket.com\nMr. Warren A. Stephens\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nJanuary 7, 2009\nGentlemen:\nAs you know, Stephens Investments Holdings LLC (“SIH”) filed a second Amendment to Schedule 13D with the Securities and Exchange\nCommission on December 5, 2008, concerning the beneficial ownership by Warren A. Stephens and SIH (collectively, the “Receiving Party”) of\nshares of common stock, par value $0.01 per share (the “Common Stock”), of Cost Plus, Inc., a California corporation (the “Disclosing Party”). As\nyou also know, the Disclosing Party has entered into an Amended and Restated Preferred Shares Rights Agreement, dated as of June 24, 2008, by\nand between the Disclosing Party and Computershare Trust Company, N.A. (the “Rights Agreement”). In response to the Receiving Party’s request,\nthe Disclosing Party has agreed to and expects to deliver to the Receiving Party, following the execution and delivery of this letter agreement by the\nReceiving Party, certain information about its properties, employees, finances, businesses and operations that has previously been prepared, in the\nordinary course.\nIn consideration of the mutual promises and covenants herein contained, and other consideration, the receipt and adequacy of which is hereby\nacknowledged, the parties hereto agree as follows:\nSubject to the approval by the Disclosing Party’s Board of Directors (“Board of Directors”), as well as the terms and conditions of the Rights\nAgreement, the Disclosing Party agrees to exempt the Receiving Party from the definition of Acquiring Person (as such term is defined in\nSection 1(a) of the Rights Agreement) in the Rights Agreement such that the Receiving Party’s beneficial ownership of up to and including 19.9% of\nthe amount of the issued and outstanding Common Stock shall not constitute a Triggering Event (as such term is defined in Section 1(qq) of the\nRights Agreement) in the Rights Agreement.\nAll information (i) about the Disclosing Party and (ii) about any third party (which information was provided to the Disclosing Party subject to\nan applicable confidentiality obligation to such third party), furnished by the Disclosing Party or its Representatives (as defined below) to the\nReceiving Party, whether furnished before or after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter\nagreement as “Proprietary Information.” Proprietary Information shall not include, however, information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by the Receiving Party in violation of this letter agreement; (ii) was available to the Receiving\nParty on a nonconfidential basis prior to its disclosure by the Disclosing Party or its Representatives; (iii) becomes available to the Receiving Party\non a nonconfidential basis from a person other than the Disclosing Party or its Representatives who is, to the Receiving Party’s knowledge, not\notherwise bound by a confidentiality agreement with the Disclosing Party or any or its Representatives, or is otherwise not under an obligation to the\nDisclosing Party or any of its Representatives not to transmit the information to the Receiving Party; or (iv) was independently developed by the\nReceiving Party without reference to or use of the Proprietary Information. For purposes of this letter agreement, (i) “Representative” shall mean, as\nto any person, its directors, officers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants);\nand (ii) “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party (i) except\nas required by law, shall keep all Proprietary Information confidential and shall not disclose or reveal any Proprietary Information to any person\n(other than to any Representative of any Affiliate, provided that such Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with the Receiving Party’s confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) shall not use Proprietary Information for any purpose other than in connection with its evaluation of the Disclosing Party; and\n(iii) except as required by law, shall not disclose to any person the fact that Proprietary Information has been made available to the Receiving Party.\nThe Receiving Party and the Affiliates shall be responsible for any breach of the terms of this letter agreement by the Receiving Party or any\nRepresentative of any Affiliate.\nIn the event that the Receiving Party or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of the\nReceiving Party’s securities are listed or quoted) or by legal process to disclose any Proprietary Information, the Receiving Party shall provide the\nDisclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order\nor other remedy, (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such\nrequest or legal process or (iii) to waive compliance, in whole or in part, with the terms of this letter agreement. In the event that such protective\norder or other remedy is not timely sought or obtained, or the Disclosing Party waives compliance, in whole or in part, with the terms of this letter\nagreement, the Receiving Party shall use commercially reasonable efforts to disclose only\nthat portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that is so disclosed\nwill be accorded confidential treatment. In the event that the Receiving Party shall have complied, in all material respects, with the provisions of this\nparagraph, such disclosure may be made by the Receiving Party without any liability hereunder.\nFurther, the Receiving Party agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes\nof Section 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the\namount of the issued and outstanding Common Stock, neither the Receiving Party nor any other person affiliated with the Receiving Party shall:\n(a) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission (“SEC”)), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of the Disclosing Party;\n(b) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(c) otherwise act or seek to control or influence the management, Board of Directors or policies of the Disclosing Party;\n(d) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding the\npossibility of any of the events described in clauses (a) through (c) above; or\n(e) request the Disclosing Party or any of its representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe Receiving Party also agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes of\nSection 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the amount\nof the issued and outstanding Common Stock (the Common Stock owned by the Receiving Party above 14.9%, the “Excess Shares”), the Receiving\nParty and any other person affiliated with the Receiving Party shall vote any and all Excess Shares in the same proportion as the votes cast by all\nother voting shareholders of the Disclosing Party.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand\nand agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the\nDisclosing Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this letter agreement, and under the joint defense doctrine. Nothing in this letter agreement\nobligates the Disclosing Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nIn the event that the Disclosing Party, in its sole discretion, requests, the Receiving Party shall, upon the Disclosing Party’s written request,\npromptly deliver to the Disclosing Party all Proprietary Information, and, at the Receiving Party’s election, return or destroy (provided that any such\ndestruction shall be certified by the Receiving Party) all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or on intangible media, such as electronic mail or computer files) (collectively, “Notes”) in the Receiving Party’s possession or in the\npossession of any Representative of the Receiving Party or any Affiliate. Upon the return or the destruction of the Proprietary Information, the\nReceiving Party, if the Receiving Party so desires, may retain in the files of the Receiving Party’s general counsel, for archival purposes only, one\ncopy of all materials returned or destroyed as a record of the materials disclosed. Notwithstanding the foregoing, the Receiving Party and its\nRepresentatives (i) may retain copies of the Proprietary Information and/or Notes to the extent that such retention is required to demonstrate\ncompliance with applicable law, rule, regulation or professional standards, or to comply with a bona fide document retention policy, provided,\nhowever, that any such information so retained shall be held in compliance with the terms of this letter agreement and (ii) shall, to the extent that\n(i) above is inapplicable to Proprietary Information and/or Notes that are electronically stored, destroy such electronically stored Proprietary\nInformation and/or Notes only to the extent that it is reasonably practical to do so.\nThe Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty as to the Proprietary Information.\nThe Receiving Party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding the foregoing, the Disclosing Party acknowledges that certain of the Receiving Party’s Representatives trade securities and nothing\nin this letter agreement shall restrict the ability of such Representatives to trade securities, other than applicable securities laws and, with respect\nto those of the Receiving Party’s Representatives who are also the Receiving Party’s affiliates who the Receiving Party has made aware of this letter\nagreement or who have otherwise received Proprietary Information, the standstill provision as described above. The Disclosing Party acknowledges\nthat the Receiving Party is affiliated with a registered securities broker-dealer and that registered representatives of the Receiving Party’s affiliated\nbroker-dealer who have not been informed of, or provided with, the Proprietary Information or of any material non-public information of the\nDisclosing Party may trade in the securities of the Disclosing Party for their own accounts or the accounts of their customers in the ordinary course\nof business.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, the Disclosing Party shall be entitled to equitable relief\nby way of injunction or otherwise if the Receiving Party or any of the Affiliates or any other affiliates of the Receiving Party breach or threaten to\nbreach any of the provisions of this letter agreement.\nIt is further understood and agreed that no failure or delay by any party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of California law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of California.\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information, and\nno modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\nCOST PLUS, INC.\nBy: /s/ Barry J. Feld\nBarry J. Feld, Chief Executive Officer\nACCEPTED AND AGREED as of the date first written above:\nWARREN A. STEPHENS, on behalf of himself and as President and owner of Stephens Investments Holdings LLC\nBy: /s/ Warren A. Stephens\nWarren A. Stephens, President	EX-10.1 3 dex101.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 10.1\n».LOGO\nCost Plus, Inc.\n200 4% Street\nOakland, CA 94607\nTel: (510) 893-7900\nwww.costplusworldmarket.com\nMr. Warren A. Stephens\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nJanuary 7, 2009\nGentlemen:\nAs you know, Stephens Investments Holdings LLC (“SIH”) filed a second Amendment to Schedule 13D with the Securities and Exchange\nCommission on December 5, 2008, concerning the beneficial ownership by Warren A. Stephens and SIH (collectively, the “Receiving Party”) of\nshares of common stock, par value $0.01 per share (the “Common Stock”), of Cost Plus, Inc., a California corporation (the “Disclosing Party”). As\nyou also know, the Disclosing Party has entered into an Amended and Restated Preferred Shares Rights Agreement, dated as of June 24, 2008, by\nand between the Disclosing Party and Computershare Trust Company, N.A. (the “Rights Agreement”). In response to the Receiving Party’s request,\nthe Disclosing Party has agreed to and expects to deliver to the Receiving Party, following the execution and delivery of this letter agreement by the\nReceiving Party, certain information about its properties, employees, finances, businesses and operations that has previously been prepared, in the\nordinary course.\nIn consideration of the mutual promises and covenants herein contained, and other consideration, the receipt and adequacy of which is hereby\nacknowledged, the parties hereto agree as follows:\nSubject to the approval by the Disclosing Party’s Board of Directors (“Board of Directors”), as well as the terms and conditions of the Rights\nAgreement, the Disclosing Party agrees to exempt the Receiving Party from the definition of Acquiring Person (as such term is defined in\nSection 1(a) of the Rights Agreement) in the Rights Agreement such that the Receiving Party’s beneficial ownership of up to and including 19.9% of\nthe amount of the issued and outstanding Common Stock shall not constitute a Triggering Event (as such term is defined in Section 1(qq) of the\nRights Agreement) in the Rights Agreement.\nAll information (i) about the Disclosing Party and (ii) about any third party (which information was provided to the Disclosing Party subject to\nan applicable confidentiality obligation to such third party), furnished by the Disclosing Party or its Representatives (as defined below) to the\nReceiving Party, whether furnished before or after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter\nagreement as “Proprietary Information.” Proprietary Information shall not include, however, information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by the Receiving Party in violation of this letter agreement; (ii) was available to the Receiving\nParty on a nonconfidential basis prior to its disclosure by the Disclosing Party or its Representatives; (iii) becomes available to the Receiving Party\non a nonconfidential basis from a person other than the Disclosing Party or its Representatives who is, to the Receiving Party’s knowledge, not\notherwise bound by a confidentiality agreement with the Disclosing Party or any or its Representatives, or is otherwise not under an obligation to the\nDisclosing Party or any of its Representatives not to transmit the information to the Receiving Party; or (iv) was independently developed by the\nReceiving Party without reference to or use of the Proprietary Information. For purposes of this letter agreement, (i) “Representative” shall mean, as\nto any person, its directors, officers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants);\nand (ii) “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party (i) except\nas required by law, shall keep all Proprietary Information confidential and shall not disclose or reveal any Proprietary Information to any person\n(other than to any Representative of any Affiliate, provided that such Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with the Receiving Party’s confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) shall not use Proprietary Information for any purpose other than in connection with its evaluation of the Disclosing Party; and\n(iii) except as required by law, shall not disclose to any person the fact that Proprietary Information has been made available to the Receiving Party.\nThe Receiving Party and the Affiliates shall be responsible for any breach of the terms of this letter agreement by the Receiving Party or any\nRepresentative of any Affiliate.\nIn the event that the Receiving Party or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of the\nReceiving Party’s securities are listed or quoted) or by legal process to disclose any Proprietary Information, the Receiving Party shall provide the\nDisclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order\nor other remedy, (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such\nrequest or legal process or (iii) to waive compliance, in whole or in part, with the terms of this letter agreement. In the event that such protective\norder or other remedy is not timely sought or obtained, or the Disclosing Party waives compliance, in whole or in part, with the terms of this letter\nagreement, the Receiving Party shall use commercially reasonable efforts to disclose only\nthat portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that is so disclosed\nwill be accorded confidential treatment. In the event that the Receiving Party shall have complied, in all material respects, with the provisions of this\nparagraph, such disclosure may be made by the Receiving Party without any liability hereunder.\nFurther, the Receiving Party agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes\nof Section 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the\namount of the issued and outstanding Common Stock, neither the Receiving Party nor any other person affiliated with the Receiving Party shall:\n(a) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission (“SEC”)), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of the Disclosing Party;\n(b) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(c) otherwise act or seek to control or influence the management, Board of Directors or policies of the Disclosing Party;\n(d) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding the\npossibility of any of the events described in clauses (a) through (c) above; or\n(e) request the Disclosing Party or any of its representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe Receiving Party also agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes of\nSection 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the amount\nof the issued and outstanding Common Stock (the Common Stock owned by the Receiving Party above 14.9%, the “Excess Shares”), the Receiving\nParty and any other person affiliated with the Receiving Party shall vote any and all Excess Shares in the same proportion as the votes cast by all\nother voting shareholders of the Disclosing Party.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand\nand agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the\nDisclosing Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this letter agreement, and under the joint defense doctrine. Nothing in this letter agreement\nobligates the Disclosing Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nIn the event that the Disclosing Party, in its sole discretion, requests, the Receiving Party shall, upon the Disclosing Party’s written request,\npromptly deliver to the Disclosing Party all Proprietary Information, and, at the Receiving Party’s election, return or destroy (provided that any such\ndestruction shall be certified by the Receiving Party) all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or on intangible media, such as electronic mail or computer files) (collectively, “Notes”) in the Receiving Party’s possession or in the\npossession of any Representative of the Receiving Party or any Affiliate. Upon the return or the destruction of the Proprietary Information, the\nReceiving Party, if the Receiving Party so desires, may retain in the files of the Receiving Party’s general counsel, for archival purposes only, one\ncopy of all materials returned or destroyed as a record of the materials disclosed. Notwithstanding the foregoing, the Receiving Party and its\nRepresentatives (i) may retain copies of the Proprietary Information and/or Notes to the extent that such retention is required to demonstrate\ncompliance with applicable law, rule, regulation or professional standards, or to comply with a bona fide document retention policy, provided,\nhowever, that any such information so retained shall be held in compliance with the terms of this letter agreement and (ii) shall, to the extent that\n(i) above is inapplicable to Proprietary Information and/or Notes that are electronically stored, destroy such electronically stored Proprietary\nInformation and/or Notes only to the extent that it is reasonably practical to do so.\nThe Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty as to the Proprietary Information.\nThe Receiving Party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding the foregoing, the Disclosing Party acknowledges that certain of the Receiving Party’s Representatives trade securities and nothing\nin this letter agreement shall restrict the ability of such Representatives to trade securities, other than applicable securities laws and, with respect\nto those of the Receiving Party’s Representatives who are also the Receiving Party’s affiliates who the Receiving Party has made aware of this letter\nagreement or who have otherwise received Proprietary Information, the standstill provision as described above. The Disclosing Party acknowledges\nthat the Receiving Party is affiliated with a registered securities broker-dealer and that registered representatives of the Receiving Party’s affiliated\nbroker-dealer who have not been informed of, or provided with, the Proprietary Information or of any material non-public information of the\nDisclosing Party may trade in the securities of the Disclosing Party for their own accounts or the accounts of their customers in the ordinary course\nof business.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, the Disclosing Party shall be entitled to equitable relief\nby way of injunction or otherwise if the Receiving Party or any of the Affiliates or any other affiliates of the Receiving Party breach or threaten to\nbreach any of the provisions of this letter agreement.\nIt is further understood and agreed that no failure or delay by any party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of California law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of California.\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information, and\nno modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\nCOST PLUS, INC.\nBy: /s/ Barry J. Feld\nBarry J. Feld, Chief Executive Officer\nACCEPTED AND AGREED as of the date first written above:\nWARREN A. STEPHENS, on behalf of himself and as President and owner of Stephens Investments Holdings LLC\nBy: /s/ Warren A. Stephens\nWarren A. Stephens, President	EX-10.1 3 dex101.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 10.1\nLogo\nCost Plus, Inc.\n200 4th Street\nOakland, CA 94607\nTel: (510) 893-7900\nwww.costplusworldmarket.com\nMr. Warren A. Stephens\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nJanuary 7, 2009\nGentlemen:\nAs you know, Stephens Investments Holdings LLC ("SIH") filed a second Amendment to Schedule 13D with the Securities and Exchange\nCommission on December 5, 2008, concerning the beneficial ownership by Warren A. Stephens and SIH (collectively, the "Receiving Party") of\nshares of common stock, par value $0.01 per share (the "Common Stock"), of Cost Plus, Inc., a California corporation (the "Disclosing Party"). As\nyou also know, the Disclosing Party has entered into an Amended and Restated Preferred Shares Rights Agreement, dated as of June 24, 2008, by\nand between the Disclosing Party and Computershare Trust Company, N.A. (the "Rights Agreement"). In response to the Receiving Party's request,\nthe Disclosing Party has agreed to and expects to deliver to the Receiving Party, following the execution and delivery of this letter agreement by the\nReceiving Party, certain information about its properties, employees, finances, businesses and operations that has previously been prepared, in the\nordinary course.\nIn consideration of the mutual promises and covenants herein contained, and other consideration, the receipt and adequacy of which is hereby\nacknowledged, the parties hereto agree as follows:\nSubject to the approval by the Disclosing Party's Board of Directors ("Board of Directors"), as well as the terms and conditions of the Rights\nAgreement, the Disclosing Party agrees to exempt the Receiving Party from the definition of Acquiring Person (as such term is defined in\nSection 1(a) of the Rights Agreement) in the Rights Agreement such that the Receiving Party's beneficial ownership of up to and including 19.9% of\nthe amount of the issued and outstanding Common Stock shall not constitute a Triggering Event (as such term is defined in Section 1(qq) of the\nRights Agreement) in the Rights Agreement.\nAll information (i) about the Disclosing Party and (ii) about any third party (which information was provided to the Disclosing Party subject\nto\nan applicable confidentiality obligation to such third party), furnished by the Disclosing Party or its Representatives (as defined below) to the\nReceiving Party, whether furnished before or after the date hereof, and regardless of the manner in which it is furnished, is referred to in this\nletter\nagreement as "Proprietary Information." Proprietary Information shall not include, however, information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by the Receiving Party in violation of this letter agreement; (ii) was available to the Receiving\nParty on a nonconfidential basis prior to its disclosure by the Disclosing Party or its Representatives; (iii) becomes available to the Receiving Party\non a nonconfidential basis from a person other than the Disclosing Party or its Representatives who is, to the Receiving Party's knowledge, not\notherwise bound by a confidentiality agreement with the Disclosing Party or any or its Representatives, or is otherwise not under an obligation to the\nDisclosing Party or any of its Representatives not to transmit the information to the Receiving Party; or (iv) was independently developed by the\nReceiving Party without reference to or use of the Proprietary Information. For purposes of this letter agreement, (i) "Representative" shall mean, as\nto any person, its directors, officers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants);\nand (ii) "person" shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party (i) except\nas required by law, shall keep all Proprietary Information confidential and shall not disclose or reveal any Proprietary Information to any person\n(other than to any Representative of any Affiliate, provided that such Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with the Receiving Party's confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) shall not use Proprietary Information for any purpose other than in connection with its evaluation of the Disclosing Party; and\n(iii) except as required by law, shall not disclose to any person the fact that Proprietary Information has been made available to the Receiving Party.\nThe Receiving Party and the Affiliates shall be responsible for any breach of the terms of this letter agreement by the Receiving Party or any\nRepresentative of any Affiliate.\nIn the event that the Receiving Party or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of the\nReceiving Party's securities are listed or quoted) or by legal process to disclose any Proprietary Information, the Receiving Party shall provide the\nDisclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order\nor other remedy, (ii) to consult with the Receiving Party with respect to the Disclosing Party's taking steps to resist or narrow the scope of such\nrequest or legal process or (iii) to waive compliance, in whole or in part, with the terms of this letter agreement. In the event that such protective\norder or other remedy is not timely sought or obtained, or the Disclosing Party waives compliance, in whole or in part, with the terms of this letter\nagreement, the Receiving Party shall use commercially reasonable efforts to disclose only\nthat portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that is so disclosed\nwill be accorded confidential treatment. In the event that the Receiving Party shall have complied, in all material respects, with the provisions of this\nparagraph, such disclosure may be made by the Receiving Party without any liability hereunder.\nFurther, the Receiving Party agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes\nof Section 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the\namount of the issued and outstanding Common Stock, neither the Receiving Party nor any other person affiliated with the Receiving Party shall:\n(a) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such terms are used in the\nrules\nof\nthe\nSecurities and Exchange Commission ("SEC")), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of the Disclosing Party;\n(b) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(c) otherwise act or seek to control or influence the management, Board of Directors or policies of the Disclosing Party;\n(d) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding the\npossibility of any of the events described in clauses (a) through (c) above; or\n(e) request the Disclosing Party or any of its representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe Receiving Party also agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes of\nSection 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the amount\nof the issued and outstanding Common Stock (the Common Stock owned by the Receiving Party above 14.9%, the "Excess Shares"), the Receiving\nParty and any other person affiliated with the Receiving Party shall vote any and all Excess Shares in the same proportion as the votes cast by all\nother voting shareholders of the Disclosing Party.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand\nand agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that\nthe\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the\nDisclosing Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this letter agreement, and under the joint defense doctrine. Nothing in this letter agreement\nobligates the Disclosing Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nIn the event that the Disclosing Party, in its sole discretion, requests, the Receiving Party shall, upon the Disclosing Party's written request,\npromptly deliver to the Disclosing Party all Proprietary Information, and, at the Receiving Party's election, return or destroy (provided that any such\ndestruction shall be certified by the Receiving Party) all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or on intangible media, such as electronic mail or computer files) (collectively, "Notes") in the Receiving Party's possession or in the\npossession of any Representative of the Receiving Party or any Affiliate. Upon the return or the destruction of the Proprietary Information, the\nReceiving Party, if the Receiving Party so desires, may retain in the files of the Receiving Party's general counsel, for archival purposes only, one\ncopy of all materials returned or destroyed as a record of the materials disclosed. Notwithstanding the foregoing, the Receiving Party and its\nRepresentatives (i) may retain copies of the Proprietary Information and/or Notes to the extent that such retention is required to demonstrate\ncompliance with applicable law, rule, regulation or professional standards, or to comply with a bona fide document retention policy, provided,\nhowever, that any such information so retained shall be held in compliance with the terms of this letter agreement and (ii) shall, to the extent\nthat\n(i) above is inapplicable to Proprietary Information and/or Notes that are electronically stored, destroy such electronically stored Proprietary\nInformation and/or Notes only to the extent that it is reasonably practical to do so.\nThe Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty as to the Proprietary Information.\nThe Receiving Party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information\nto\nany\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding the foregoing, the Disclosing Party acknowledges that certain of the Receiving Party's Representatives trade securities and nothing\nin this letter agreement shall restrict the ability of such Representatives to trade securities, other than applicable securities laws and, with respect\nto those of the Receiving Party's Representatives who are also the Receiving Party's affiliates who the Receiving Party has made aware of this letter\nagreement or who have otherwise received Proprietary Information, the standstill provision as described above. The Disclosing Party acknowledges\nthat the Receiving Party is affiliated with a registered securities broker-dealer and that registered representatives of the Receiving Party's affiliated\nbroker-dealer who have not been informed of, or provided with, the Proprietary Information or of any material non-public information of the\nDisclosing Party may trade in the securities of the Disclosing Party for their own accounts or the accounts of their customers in the ordinary course\nof business.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, the Disclosing Party shall be entitled to equitable relief\nby way of injunction or otherwise if the Receiving Party or any of the Affiliates or any other affiliates of the Receiving Party breach or threaten to\nbreach any of the provisions of this letter agreement.\nIt is further understood and agreed that no failure or delay by any party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of California law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of California.\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information, and\nno modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\nCOST PLUS, INC.\nBy: /s/ Barry J. Feld\nBarry J. Feld, Chief Executive Officer\nACCEPTED AND AGREED as of the date first written above:\nWARREN A. STEPHENS, on behalf of himself and as President and owner of Stephens Investments Holdings LLC\nBy: /s/ Warren A. Stephens\nWarren A. Stephens, President	EX-10.1 3 dex101.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 10.1\nLOGO\nCost Plus, Inc.\n200 4th Street\nOakland, CA 94607\nTel: (510) 893-7900\nwww.costplusworldmarket.com\nMr. Warren A. Stephens\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nJanuary 7, 2009\nGentlemen:\nAs you know, Stephens Investments Holdings LLC (“SIH”) filed a second Amendment to Schedule 13D with the Securities and Exchange\nCommission on December 5, 2008, concerning the beneficial ownership by Warren A. Stephens and SIH (collectively, the “Receiving Party”) of\nshares of common stock, par value $0.01 per share (the “Common Stock”), of Cost Plus, Inc., a California corporation (the “Disclosing Party”). As\nyou also know, the Disclosing Party has entered into an Amended and Restated Preferred Shares Rights Agreement, dated as of June 24, 2008, by\nand between the Disclosing Party and Computershare Trust Company, N.A. (the “Rights Agreement”). In response to the Receiving Party’s request,\nthe Disclosing Party has agreed to and expects to deliver to the Receiving Party, following the execution and delivery of this letter agreement by the\nReceiving Party, certain information about its properties, employees, finances, businesses and operations that has previously been prepared, in the\nordinary course.\nIn consideration of the mutual promises and covenants herein contained, and other consideration, the receipt and adequacy of which is hereby\nacknowledged, the parties hereto agree as follows:\nSubject to the approval by the Disclosing Party’s Board of Directors (“Board of Directors”), as well as the terms and conditions of the Rights\nAgreement, the Disclosing Party agrees to exempt the Receiving Party from the definition of Acquiring Person (as such term is defined in\nSection 1(a) of the Rights Agreement) in the Rights Agreement such that the Receiving Party’s beneficial ownership of up to and including 19.9% of\nthe amount of the issued and outstanding Common Stock shall not constitute a Triggering Event (as such term is defined in Section 1(qq) of the\nRights Agreement) in the Rights Agreement.\nAll information (i) about the Disclosing Party and (ii) about any third party (which information was provided to the Disclosing Party subject to\nan applicable confidentiality obligation to such third party), furnished by the Disclosing Party or its Representatives (as defined below) to the\nReceiving Party, whether furnished before or after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter\nagreement as “Proprietary Information.” Proprietary Information shall not include, however, information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by the Receiving Party in violation of this letter agreement; (ii) was available to the Receiving\nParty on a nonconfidential basis prior to its disclosure by the Disclosing Party or its Representatives; (iii) becomes available to the Receiving Party\non a nonconfidential basis from a person other than the Disclosing Party or its Representatives who is, to the Receiving Party’s knowledge, not\notherwise bound by a confidentiality agreement with the Disclosing Party or any or its Representatives, or is otherwise not under an obligation to the\nDisclosing Party or any of its Representatives not to transmit the information to the Receiving Party; or (iv) was independently developed by the\nReceiving Party without reference to or use of the Proprietary Information. For purposes of this letter agreement, (i) “Representative” shall mean, as\nto any person, its directors, officers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants);\nand (ii) “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party (i) except\nas required by law, shall keep all Proprietary Information confidential and shall not disclose or reveal any Proprietary Information to any person\n(other than to any Representative of any Affiliate, provided that such Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with the Receiving Party’s confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) shall not use Proprietary Information for any purpose other than in connection with its evaluation of the Disclosing Party; and\n(iii) except as required by law, shall not disclose to any person the fact that Proprietary Information has been made available to the Receiving Party.\nThe Receiving Party and the Affiliates shall be responsible for any breach of the terms of this letter agreement by the Receiving Party or any\nRepresentative of any Affiliate.\nIn the event that the Receiving Party or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of the\nReceiving Party’s securities are listed or quoted) or by legal process to disclose any Proprietary Information, the Receiving Party shall provide the\nDisclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order\nor other remedy, (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such\nrequest or legal process or (iii) to waive compliance, in whole or in part, with the terms of this letter agreement. In the event that such protective\norder or other remedy is not timely sought or obtained, or the Disclosing Party waives compliance, in whole or in part, with the terms of this letter\nagreement, the Receiving Party shall use commercially reasonable efforts to disclose only\nthat portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that is so disclosed\nwill be accorded confidential treatment. In the event that the Receiving Party shall have complied, in all material respects, with the provisions of this\nparagraph, such disclosure may be made by the Receiving Party without any liability hereunder.\nFurther, the Receiving Party agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes\nof Section 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the\namount of the issued and outstanding Common Stock, neither the Receiving Party nor any other person affiliated with the Receiving Party shall:\n(a) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission (“SEC”)), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of the Disclosing Party;\n(b) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(c) otherwise act or seek to control or influence the management, Board of Directors or policies of the Disclosing Party;\n(d) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding the\npossibility of any of the events described in clauses (a) through (c) above; or\n(e) request the Disclosing Party or any of its representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe Receiving Party also agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes of\nSection 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the amount\nof the issued and outstanding Common Stock (the Common Stock owned by the Receiving Party above 14.9%, the “Excess Shares”), the Receiving\nParty and any other person affiliated with the Receiving Party shall vote any and all Excess Shares in the same proportion as the votes cast by all\nother voting shareholders of the Disclosing Party.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand\nand agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the\nDisclosing Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this letter agreement, and under the joint defense doctrine. Nothing in this letter agreement\nobligates the Disclosing Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nIn the event that the Disclosing Party, in its sole discretion, requests, the Receiving Party shall, upon the Disclosing Party’s written request,\npromptly deliver to the Disclosing Party all Proprietary Information, and, at the Receiving Party’s election, return or destroy (provided that any such\ndestruction shall be certified by the Receiving Party) all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or on intangible media, such as electronic mail or computer files) (collectively, “Notes”) in the Receiving Party’s possession or in the\npossession of any Representative of the Receiving Party or any Affiliate. Upon the return or the destruction of the Proprietary Information, the\nReceiving Party, if the Receiving Party so desires, may retain in the files of the Receiving Party’s general counsel, for archival purposes only, one\ncopy of all materials returned or destroyed as a record of the materials disclosed. Notwithstanding the foregoing, the Receiving Party and its\nRepresentatives (i) may retain copies of the Proprietary Information and/or Notes to the extent that such retention is required to demonstrate\ncompliance with applicable law, rule, regulation or professional standards, or to comply with a bona fide document retention policy, provided,\nhowever, that any such information so retained shall be held in compliance with the terms of this letter agreement and (ii) shall, to the extent that\n(i) above is inapplicable to Proprietary Information and/or Notes that are electronically stored, destroy such electronically stored Proprietary\nInformation and/or Notes only to the extent that it is reasonably practical to do so.\nThe Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty as to the Proprietary Information.\nThe Receiving Party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding the foregoing, the Disclosing Party acknowledges that certain of the Receiving Party’s Representatives trade securities and nothing\nin this letter agreement shall restrict the ability of such Representatives to trade securities, other than applicable securities laws and, with respect\nto those of the Receiving Party’s Representatives who are also the Receiving Party’s affiliates who the Receiving Party has made aware of this letter\nagreement or who have otherwise received Proprietary Information, the standstill provision as described above. The Disclosing Party acknowledges\nthat the Receiving Party is affiliated with a registered securities broker-dealer and that registered representatives of the Receiving Party’s affiliated\nbroker-dealer who have not been informed of, or provided with, the Proprietary Information or of any material non-public information of the\nDisclosing Party may trade in the securities of the Disclosing Party for their own accounts or the accounts of their customers in the ordinary course\nof business.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, the Disclosing Party shall be entitled to equitable relief\nby way of injunction or otherwise if the Receiving Party or any of the Affiliates or any other affiliates of the Receiving Party breach or threaten to\nbreach any of the provisions of this letter agreement.\nIt is further understood and agreed that no failure or delay by any party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of California law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of California.\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information, and\nno modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\nCOST PLUS, INC.\nBy: /s/ Barry J. Feld\nBarry J. Feld, Chief Executive Officer\nACCEPTED AND AGREED as of the date first written above:\nWARREN A. STEPHENS, on behalf of himself and as President and owner of Stephens Investments Holdings LLC\nBy: /s/ Warren A. Stephens\nWarren A. Stephens, President
4b98c7cfb5b715a77cd657209da58aa2.pdf	jurisdiction	EX-10 .1 2 a18-18045 _2ex10d1.htm EX-10.1\nExhibit F-2\nEMPLOYEE INVENTIONS AND PROPRIETARY INFORMATION AGREEMENT\nThe following agreement (the “Agreement”) between Boingo Wireless, Inc., a Delaware corporation (the “Company”), and the individual\nidentified on the signature page to this Agreement (“Employee” or “I”) is effective as of the first day of Employee’s employment by\nthe Company and confirms and memorializes the agreement that (regardless of the execution date hereof) the Company and I have\nhad since the commencement of my employment. I acknowledge that this Agreement is a material part of the consideration for my\nemployment or continued employment by the Company. In exchange for the foregoing and for other good and valuable consideration,\nincluding my access to and use of the Company’s Inventions (defined below) and Proprietary Information (defined below) for\nperformance of my employment, training and/or receipt of certain other valuable consideration, the parties agree as follows:\n1.\nNo Conflicts. I have not made, and agree not to make, any agreement, oral or written, that is in conflict with this Agreement\nor my employment with the Company. I will not violate any agreement with, or the rights of, any third party. When acting within the\nscope of my employment (or otherwise on behalf of the Company), I will not use or disclose my own or any third party’s confidential\ninformation or intellectual property (collectively, “Restricted Materials”), except as expressly authorized by the Company in writing.\nFurther, I have not retained anything containing or reflecting any confidential information or intellectual property of a prior employer\nor other third party, whether or not created by me.\n2.\nInventions.\na.\nDefinitions. “Company Interest” means any of the Company’s current and anticipated business, research and development, as\nwell as any product, service, other Invention or Intellectual Property Rights (defined below) that is sold, leased, used, licensed,\nprovided, proposed, under consideration or under development by the Company. “Intellectual Property Rights” means any and all\npatent rights, copyright rights, trademark rights, mask work rights, trade secret rights, sui generis database rights and all other\nintellectual and industrial property rights of any sort throughout the world (including any application therefor and any rights to apply\ntherefor, as well as all rights to pursue remedies for infringement or violation thereof). “Invention” means any idea, concept,\ndiscovery, learning, invention, development, research, technology, work of authorship, trade secret, software, firmware, content,\naudio-visual material, tool, process, technique, know-how, data, plan, device, apparatus, specification, design, prototype, circuit,\nlayout, mask work, algorithm, program, code, documentation or other material or information, tangible or intangible, and all versions,\nmodifications, enhancements and derivative works thereof, whether or not it may be patented, copyrighted, trademarked or otherwise\nprotected.\nb.\nAssignment. The Company shall own, and I hereby assign and agree to assign, all right, title and interest in and to all\nInventions (including all Intellectual Property Rights therein, related thereto or embodied therein) that are collected, made, conceived,\ndeveloped, reduced to practice or set out in any tangible medium of expression or otherwise created, in whole or in part (collectively\n“Created”), by me during the term of my employment with the Company that either (i) arise out of any use of the Company’s\nfacilities, equipment, Proprietary Information or other assets (collectively “Company Assets”) or any research or other activity\nconducted by, for or under the direction of the Company (whether or not conducted (A) at the Company’s facilities; (B) during\nworking hours or (C) using Company Assets), or (ii) are useful with or in or relate directly or indirectly to any Company Interest. I\nwill promptly disclose and provide all of the foregoing Inventions (the “Assigned Inventions”) to the Company. However, the\nforegoing does not purport to assign to the Company (and Assigned Inventions shall not include) any Invention that: (1) by law\n(including, without limitation, the applicable statutory provision for my state of employment set forth in Appendix A, if any) I cannot\nbe required to so assign; or (2) otherwise meets all of the following requirements: (I) the Invention is Created entirely on my own\ntime; (II) the Invention is Created entirely without use of any Company Assets and (III) the Invention is not useful with or related to\nany Company Interest.. Nevertheless, if I believe any Invention Created by me during the term of my employment is not within the\ndefinition of Assigned Inventions, I will nevertheless disclose it to the Company so that the Company may make its assessment.\nc.\nAssurances. I hereby make and agree to make all assignments to the Company necessary to effectuate and accomplish the\nCompany’s ownership in and to all Assigned Inventions. I will further assist the Company, at its expense, to evidence, record and\nperfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights specified to be so owned or assigned. I\nhereby irrevocably designate and appoint the Company and its officers as my agents and attorneys-in-fact, coupled with an interest, to\nact for and on my behalf to execute and file any document and to perform all other lawfully permitted acts to further the purposes of\nthe foregoing with the same legal force and effect as if executed by me.\nd.\nOther Inventions. If (i) I use or disclose any Restricted Materials when acting within the scope of my employment (or\notherwise to or on behalf of the Company) or (ii) any Assigned Invention cannot be fully made, used, reproduced, sold, distributed,\nmodified, commercialized or otherwise exploited (collectively, “Exploited”) without using, misappropriating, infringing or violating\nany Restricted Materials, I hereby grant and agree to grant to the Company a perpetual, irrevocable, worldwide, full paid-up,\nroyalty-free, non-exclusive, assignable, transferable, sublicensable right and license to use, disclose, fully Exploit and exercise all\nrights in such Restricted Materials and all Intellectual Property Rights embodied therein or related thereto. I will not use or disclose\nany Restricted Materials for which I am not fully authorized to grant the foregoing license.\ne.\nMoral Rights. To the extent allowed by applicable law, the terms of this Section 2 include all rights of paternity, integrity,\ndisclosure, withdrawal and any other rights that may be known or referred to as moral rights, artist’s rights, droit moral or the like\n(collectively, “Moral Rights”). To the extent I retain any such Moral Rights under applicable law, I hereby ratify and consent to any\naction that may be taken with respect to such Moral Rights by or authorized by the Company, and agree not to assert any Moral\nRights with respect thereto. I will confirm any such ratification,\nconsent or agreement from time to time as requested by the Company. Furthermore, I agree that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world and without any further\ncompensation, the Company may and is hereby authorized to use my name, likeness and voice in connection with promotion of its business, products and services, and to allow others to do the same.\n3.\nProprietary Information.\na.\nDefinition; Restrictions on Use. I agree that all Assigned Inventions (and all other financial, business, legal and technical\ninformation regarding or relevant to any Company Interest that is not generally publicly known), including the identity of and any\nother information relating to the Company’s employees, Affiliates and Business Partners (as such terms are defined below), that I\ndevelop, learn or obtain during my employment or that are received by or for the Company in confidence, constitute “Proprietary\nInformation.” I will hold in strict confidence and not directly or indirectly disclose or use any Proprietary Information, except as\nrequired within the scope of my employment. My obligation of nondisclosure and nonuse of Proprietary Information under this\nSection shall continue until I can document that it is or becomes readily generally available to the public without restriction through\nno fault of mine (including breach of this Agreement)) or, if a court requires a shorter duration, then the maximum time allowable by\nlaw will control. Furthermore, I understand that this Agreement does not affect my immunity under 18 USC Sections 1833(b) (1) or\n(2), which read as follows:\n(1) An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a\ntrade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to\nan attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.\n(2) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the\ntrade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual\n(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to\ncourt order.\nb.\nUpon Termination. Upon termination of my employment (for any or no reason, whether voluntary or involuntary), I will\npromptly identify and, as directed by the Company, destroy, delete or return to the Company all items containing or embodying\nProprietary Information (including all original or copies of content, whether in electronic or hard-copy form), except that I may keep\nmy personal copies of (i) my compensation records; (ii) materials distributed to shareholders generally and (iii) this Agreement.\nc.\nCompany Systems. I also recognize and agree that I have no expectation of privacy with respect to the Company’s networks,\ntelecommunications systems or information processing systems (including, without limitation, stored computer files, email messages\nand voicemail messages or other devices (including personal devices) in which Company Proprietary Information resides, is stored or\nis passed through (“Company Systems”), and in order to ensure compliance with work rules and safety concerns, the Company or its\nagents may monitor, at any time and without further notice to me, any Company Systems and any of my activity, files or messages on\nor using any Company Systems, regardless of whether such activity occurs on equipment owned by me or the Company. I further\nagree that any property situated on the Company’s premises and owned, leased or otherwise possessed by the Company, including\ncomputers, computer files, email, voicemail, storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. I understand and acknowledge that (A) any such searches or monitoring efforts are not\nformal accusations of wrongdoing but rather part of the procedure of an investigation and (B) refusal to consent to such a search may\nbe grounds for discipline.\n4.\nRestricted Activities. For the purposes of this Section 4, the term “the Company” includes the Company and all other persons\nor entities that control, are controlled by or are under common control with the Company (“Affiliates”) and for whom Employee\nperformed responsibilities or about whom Employee has Proprietary Information.\nf.\nDefinitions. “Competitive Activities” means any direct or indirect non-Company activity (i) that is the same or substantially\nsimilar to Employee’s responsibilities for the Company that relates to, is substantially similar to, or competes with the Company (or\nits demonstrably planned interests) at the time of Employee’s termination from the Company; or (ii) involving the use or disclosure,\nor the likelihood of the use or disclosure, of Proprietary Information. Competitive Activities do not include being a holder of less than\none percent (1%) of the outstanding equity of a public company. “Business Partner” means any past (i.e ., within the twelve (12)\nmonths preceding Employee’s termination from the Company), present or prospective (i.e ., actively pursued by the Company within\nthe twelve (12) months preceding Employee’s termination from the Company) customer, vendor, supplier, distributor or other\nbusiness partner of the Company with whom Employee comes into contact during Employee’s employment with the Company or\nabout whom Employee had knowledge by reason of Employee’s relationship with the Company or because of Employee’s access to\nProprietary Information. “Cause” means to recruit, employ, retain or otherwise solicit, induce or influence, or to attempt to do so\n(provided that if I am a resident of California, “Cause” means to recruit, or otherwise solicit, induce or influence, or to attempt to do\nso). “Solicit”, with respect to Business Partners, means to (A) service, take orders from or solicit the business or patronage of any\nBusiness Partner for Employee or any other person or entity, (B) divert, entice or otherwise take away from the Company the\nbusiness or patronage of any Business Partner, or to attempt to do so, or (C) solicit, induce or encourage any Business Partner to\nterminate or reduce its relationship with the Company.\ng.\nAcknowledgments.\ni.\nI acknowledge and agree that (A) the Company’s business is highly competitive; (B) secrecy of the Proprietary Information is\nof the utmost importance to the Company, and I will learn and use Proprietary Information in the course of performing my work for\nthe Company and (C) my position may require me to establish\ngoodwill with Business Partners and employees on behalf of the Company and such goodwill is extremely important to the Company’s success, and the Company has made substantial investments to develop its business interests and\ngoodwill.\nii.\nI agree that the limitations as to time, geographical area and scope of activity to be restrained in this Section 4 are coextensive\nwith the Company’s footprint and my performance of responsibilities for the Company and are therefore reasonable and not greater\nthan necessary to protect the goodwill or other business interests of the Company. I further agree that such investments are worthy of\nprotection and that the Company’s need for protection afforded by this Section 4 is greater than any hardship I may experience by\ncomplying with its terms.\ni.\nI acknowledge that my violation or attempted violation of the agreements in this Section 4 will cause irreparable damage to\nthe Company or its Affiliates, and I therefore agree that the Company shall be entitled as a matter of right to an injunction out of any\ncourt of competent jurisdiction, restraining any violation or further violation of such agreements by me or others acting on my behalf.\nThe Company’s right to injunctive relief shall be cumulative and in addition to any other remedies provided by law or equity.\nii.\nAlthough the parties believe that the limitations as to time, geographical area and scope of activity contained herein are\nreasonable and do not impose a greater restraint than necessary to protect the goodwill or other business interests of the Company, if\nit is judicially determined otherwise, the limitations shall be reformed to the extent necessary to make them reasonable and not to\nimpose a restraint that is greater than necessary to protect the goodwill or other business interests of the Company.\niii.\nIn any such case, the Company and I agree that the remaining provisions of this Section 4 shall be valid and binding as though\nany invalid or unenforceable provision had not been included.\nc.\nAs an Employee. During my employment with the Company, I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company (other than terminating subordinate employees in the course of\nmy duties for the Company); (ii) Solicit any Business Partner; (iii) act in any capacity in or with respect to any commercial activity\nwhich competes, or is reasonably likely to compete, with any business that the Company conducts, proposes to conduct or\ndemonstrably anticipates conducting, at any time during my employment with the Company or (iv) enter into in an employment,\nconsulting or other similar relationship with another person or entity that requires a significant time commitment without the prior\nwritten consent of the Company.\nh.\nAfter Termination. For the period of twelve (12) months immediately following my termination of employment with the\nCompany (for any or no reason, whether voluntary or involuntary), I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company; or (ii) unless I am a resident of California (A) Solicit any\nBusiness Partner or (B) engage in any Competitive Activities (I) anywhere the Company offers its services or has customers during\nmy employment with the Company or where my use or disclosure of Proprietary Information could materially disadvantage the\nCompany regardless of my physical location; or (II) anywhere the Company offers its services or has customers and where I have\nresponsibility for the Company or (III) anywhere within a fifty (50) mile radius of any physical location I work for the Company. The\nforegoing timeframes shall be increased by the period of time beginning from the commencement of any violation of the foregoing\nprovisions until such time as I have cured such violation.\n5.\nEmployment at Will. I agree that this Agreement is not an employment contract for any particular term. I have the right to\nresign and the Company has the right to terminate my employment at will, at any time, for any or no reason, with or without cause.\nThis Agreement does not purport to set forth all of the terms and conditions of my employment, and as an employee of the\nCompany, I have obligations to the Company which are not described in this Agreement. However, the terms of this Agreement\ngovern over any such terms that are inconsistent with this Agreement, and supersede the terms of any similar form that I may have\npreviously signed. This Agreement can only be changed by a subsequent written agreement signed by the Chief Executive Officer or\nPresident of the Company, or an officer designee authorized in writing by the foregoing or the Company’s Board of Directors.\n3.\nSurvival. I agree that any change or changes in my employment title, duties, compensation, or equity interest after the signing\nof this Agreement shall not affect the validity or scope of this Agreement. I agree that the terms of this Agreement, and any\nobligations I have hereunder, shall continue in effect after termination of my employment, regardless of the reason, and whether such\ntermination is voluntary or involuntary, and that the Company is entitled to communicate my obligations under this Agreement to any\nof my potential or future employers. I will provide a copy of this Agreement to any potential or future employers of mine, so that they\nare aware of my obligations hereunder. This Agreement, and any obligations I have hereunder, also shall be binding upon my heirs,\nexecutors, assigns and administrators, and shall inure to the benefit of the Company, its Affiliates, successors and assigns. This\nAgreement and any rights and obligations of the Company hereunder may be freely assigned and transferred by the Company, in\nwhole or part, to any third party.\n4.\nMiscellaneous. Any dispute in the meaning, effect or validity of this Agreement shall be resolved in accordance with (a) the\nlaws of the State of California if I am an employee located in the State of California, or, alternatively, (b) the laws of the State of\nDelaware, if I am employee located outside of the State of California, in either case, without regard to the conflict of laws provisions\nthereof. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a\nwaiver of such rights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right\nor remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If\none or more provisions of this Agreement is held to be illegal or unenforceable under applicable law, such illegal or unenforceable\nportion shall be limited or excluded from this Agreement to the minimum extent required so that this Agreement shall otherwise\nremain in full force and effect and enforceable. I acknowledge and agree that any breach or threatened breach of this Agreement will\ncause irreparable harm to\nthe Company for which damages would not be an adequate remedy, and, therefore, the Company is entitled to injunctive relief with respect thereto (without the necessity of posting any bond) in addition to any other remedies.\n[Signature Page Follows]\nI HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS THAT IT IMPOSES UPON ME WITHOUT RESERVATION. NO PROMISES OR\nREPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY , WITH THE UNDERSTANDING THAT I EITHER\n(1) HAVE RETAINED A COPY OF THIS AGREEMENT OR (2) MAY REQUEST A COPY OF THIS AGREEMENT FROM THE COMPANY AT ANY TIME.\nBOINGO WIRELESS, INC .\nEMPLOYEE\nBy:\nBy:\nName:\nName:\nTitle:\nAddress:\nDated:\nDated:	EX-10.l 2 a18-18045_2ex10d1.htm EX-10.l\nExhibilF-Z\nEMPLOYEE INVENTIONS AND PROPRIETARY INFORMATION AGREEMENT\nThe following agreement (the ”A greement”) between Boingo Wireless, Inc., a Delaware corporation (the ”Company”), and the individual\nidentified on the signature page to this Agreement (”Employee” or ”I”) is effective as of the first day of Employee' s employment by\nthe Company and confirms and memorializes the agreement that (regardless of the execution date hereof) the Company and I have\nhad since the commencement of my employment. I acknowledge that this Agreement is a material part of the consideration for my\nemployment or continued employment by the Company. In exchange for the foregoing and for other good and valuable consideration,\nincluding my access to and use of the Company' s Inventions (defined below) and Proprietary Information (defined below) for\nperformance of my employment, training and/or receipt of certain other valuable consideration, the parties agree as follows:\n1. No C onflicts. I have not made, and agree not to make, any agreement, oral or written, that is in conflict with this Agreement\nor my employment with the Company. I will not violate any agreement with, or the rights of, any third party. When acting within the\nscope of my employment (or otherwise on behalf of the Company), I will not use or disclose my own or any third party’ s confidential\ninformation or intellectual property (collectively, ”Restricted Materials" 1, except as expressly authorized by the Company in writing.\nFurther, I have not retained anything containing or reflecting any confidential information or intellectual property of a prior employer\nor other third party, whether or not created by me.\n2. Inventions.\na. Definitions. ”Company Interest” means any of the Company' s current and anticipated business, research and development, as\nwell as any product, service, other Invention or Intellectual Property Rights (defined below) that is sold, leased, used, licensed,\nprovided, proposed, under consideration or under development by the Company. ”Intellectual Propem Rights” means any and all\npatent rights, copyright rights, trademark rights, mask work rights, trade secret rights, sui generis database rights and all other\nintellectual and industrial property rights of any sort throughout the world (including any application therefor and any rights to apply\ntherefor, as well as all rights to pursue remedies for infringement or violation thereof). ”Invention” means any idea, concept,\ndiscovery, learning, invention, development, research, technology, work of authorship, trade secret, software, firmware, content,\naudio-visual material, tool, process, technique, know-how, data, plan, device, apparatus, specification, design, prototype, circuit,\nlayout, mask work, algorithm, program, code, documentation or other material or information, tangible or intangible, and all versions,\nmodifications, enhancements and derivative works thereof, whether or not it may be patented, copyrighted, trademarked or otherwise\nprotected.\n1). Assignment. The Company shall own, and I hereby assign and agree to assign, all right, title and interest in and to all\nInventions (including all Intellectual Property Rights therein, related thereto or embodied therein) that are collected, made, conceived,\ndeveloped, reduced to practice or set out in any tangible medium of expression or otherwise created, in whole or in part (collectively\n”Created”), by me during the term of my employment with the Company that either (i) arise out of any use of the Company’s\nfacilities, equipment, Proprietary Information or other assets (collectively ”Company A ssets”) or any research or other activity\nconducted by, for or under the direction of the Company (whether or not conducted (A) at the Company' s facilities; (B) during\nworking hours or (C) using Company Assets), or (ii) are useful with or in or relate directly or indirectly to any Company Interest. I\nwill promptly disclose and provide all of the foregoing Inventions (the ”A ssigned Inventions") to the Company. However, the\nforegoing does not purport to assign to the Company (and Assigned Inventions shall not include) any Invention that: (1) by law\n(including, without limitation, the applicable statutory provision for my state of employment set forth in Appendix A, if any) I cannot\nbe required to so assign; or (2) otherwise meets all of the following requirements: (I) the Invention is Created entirely on my own\ntime; (II) the Invention is Created entirely without use of any Company Assets and (III) the Invention is not useful with or related to\nany Company Interest. Nevertheless, if I believe any Invention Created by me during the term of my employment is not within the\ndefinition of Assigned Inventions, I will nevertheless disclose it to the Company so that the Company may make its assessment.\n0. Assurances. I hereby make and agree to make all assignments to the Company necessary to effectuate and accomplish the\nCompany' s ownership in and to all Assigned Inventions. I will further assist the Company, at its expense, to evidence, record and\nperfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights specified to be so owned or assigned. I\nhereby irrevocably designate and appoint the Company and its officers as my agents and attorneys-in-fact, coupled with an interest, to\nact for and on my behalf to execute and file any document and to perform all other lawfully permitted acts to further the purposes of\nthe foregoing with the same legal force and effect as if executed by me.\nd. Other Inventions. If (i) I use or disclose any Restricted Materials when acting within the scope of my employment (or\notherwise to or on behalf of the Company) or (ii) any Assigned Invention cannot be fully made, used, reproduced, sold, distributed,\nmodified, commercialized or otherwise exploited (collectively, ”Exploited”! without using, misappropriating, infringing or violating\nany Restricted Materials, I hereby grant and agree to grant to the Company a perpetual, irrevocable, worldwide, full paid-up,\nroyalty-free, non- exclusive, assignable, transferable, sublicensable right and license to use, disclose, fully Exploit and exercise all\nrights in such Restricted Materials and all Intellectual Property Rights embodied therein or related thereto. I will not use or disclose\nany Restricted Materials for which I am not fully authorized to grant the foregoing license.\ne. Moral Rights. To the extent allowed by applicable law, the terms of this Section 2 include all rights of paternity, integrity,\ndisclosure, withdrawal and any other rights that may be known or referred to as moral rights, artist' s rights, droit moral or the like\n(collectively, ”M oral Rights” 1. To the extent I retain any such Moral Rights under applicable law, I hereby ratify and consent to any\naction that may be taken with respect to such Moral Rights by or authorized by the Company, and agree not to assert any Moral\nRights with respect thereto. I will confirm any such ratification,\n \nconsent or agreement from time to time as requested by the Company. Furthermore, I agree that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world and without any further\ncompensation, the Company may and is hereby authorized to use my name, likeness and voice in connection with promotion of its business, products and services, and to allow others to do the same.\n3. Proprletary Information.\na. Definition; Restrictions on Use. I agree that all Assigned Inventions (and all other financial, business, legal and technical\ninformation regarding or relevant to any Company Interest that is not generally publicly known), including the identity of and any\nother information relating to the Company' s employees, Affiliates and Business Partners (as such terms are defined below), that I\ndevelop, learn or obtain during my employment or that are received by or for the Company in confidence, constitute ”Proprietary\nInformation.” I will hold in strict confidence and not directly or indirectly disclose or use any Proprietary Information, except as\nrequired within the scope of my employment. My obligation of nondisclosure and nonuse of Proprietary Information under this\nSection shall continue until I can document that it is or becomes readily generally available to the public without restriction through\nno fault of mine (including breach of this A greement)) or, if a court requires a shorter duration, then the maximum time allowable by\nlaw will control. Furthermore, I understand that this Agreement does not affect my immunity under 18 USC Sections 1833(b) (1) or\n(2), which read as follows:\n(1) An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a\ntrade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to\nan attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.\n(2) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the\ntrade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual\n(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to\ncourt order.\nb. Upon Termination. Upon termination of my employment (for any or no reason, whether voluntary or involuntary), I will\npromptly identify and, as directed by the Company, destroy, delete or return to the Company all items containing or embodying\nProprietary Information (including all original or copies of content, whether in electronic or hard-copy form), except that I may keep\nmy personal copies of (i) my compensation records; (ii) materials distributed to shareholders generally and (iii) this Agreement.\nc. Company Systems. I also recognize and agree that I have no expectation of privacy with respect to the Company' s networks,\ntelecommunications systems or information processing systems (including, without limitation, stored computer files, email messages\nand voicemail messages or other devices (including personal devices) in which Company Proprietary Information resides, is stored or\nis passed through (”Company Systems" 1, and in order to ensure compliance with work rules and safety concerns, the Company or its\nagents may monitor, at any time and without further notice to me, any Company Systems and any of my activity, files or messages on\nor using any Company Systems, regardless of whether such activity occurs on equipment owned by me or the Company. I further\nagree that any property situated on the Company' s premises and owned, leased or otherwise possessed by the Company, including\ncomputers, computer files, email, voicemail, storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. I understand and acknowledge that (A) any such searches or monitoring efforts are not\nformal accusations of wrongdoing but rather part of the procedure of an investigation and (B) refusal to consent to such a search may\nbe grounds for discipline.\n4. Restricted Activities. For the purposes of this Section 4, the term ”the Company" includes the Company and all other persons\nor entities that control, are controlled by or are under common control with the Company (”A ffiliates") and for whom Employee\nperformed responsibilities or about whom Employee has Proprietary Information.\nr. Definitions. ”Competitive Activities” means any direct or indirect non-Company activity (i) that is the same or substantially\nsimilar to Employee' s responsibilities for the Company that relates to, is substantially similar to, or competes with the Company (or\nits demonstrably planned interests) at the time of Employee' s termination from the Company; or (ii) involving the use or disclosure,\nor the likelihood of the use or disclosure, of Proprietary Information. Competitive Activities do not include being a holder of less than\none percent (1%) of the outstanding equity of a public company. ”Business Partner” means any past (i.e., within the twelve (12)\nmonths preceding Employee’s termination from the Company), present or prospective (i.e., actively pursued by the Company within\nthe twelve (12) months preceding Employee’ s termination from the Company) customer, vendor, supplier, distributor or other\nbusiness partner of the Company with whom Employee comes into contact during Employee’ s employment with the Company or\nabout whom Employee had knowledge by reason of Employee' s relationship with the Company or because of Employee' s access to\nProprietary Information. ”Cause" means to recruit, employ, retain or otherwise solicit, induce or influence, or to attempt to do so\n(provided that if I am a resident of California, ”Cause" means to recruit, or otherwise solicit, induce or influence, or to attempt to do\nso). ”Solicit", with respect to Business Partners, means to (A) service, take orders from or solicit the business or patronage of any\nBusiness Partner for Employee or any other person or entity, (B) divert, entice or otherwise take away from the Company the\nbusiness or patronage of any Business Partner, or to attempt to do so, or (C) solicit, induce or encourage any Business Partner to\nterminate or reduce its relationship with the Company.\ng. Acknowledgments.\nr. I acknowledge and agree that (A) the Company' s business is highly competitive; (B) secrecy of the Proprietary Information is\nof the utmost importance to the Company, and I will learn and use Proprietary Information in the course of performing my work for\nthe Company and (C) my position may require me to establish\n \ngoodwill with Business Farmers and employees on behalf of the Company and such goodwill is extremely important to the Company' s success, and the Company has made substantial investments to develop its business interests and\ngoodwill.\nu. I agree that the limitations as to time, geographical area and scope of activity to be restrained in this Section 4 are coextensive\nwith the Company' s footprint and my performance of responsibilities for the Company and are therefore reasonable and not greater\nthan necessary to protect the goodwill or other business interests of the Company. I further agree that such investments are worthy of\nprotection and that the Company' s need for protection afforded by this Section 4 is greater than any hardship I may experience by\ncomplying with its terms.\ni. I acknowledge that my violation or attempted violation of the agreements in this Section 4 will cause irreparable damage to\nthe Company or its Affiliates, and I therefore agree that the Company shall be entitled as a matter of right to an injunction out of any\ncourt of competent jurisdiction, restraining any violation or further violation of such agreements by me or others acting on my behalf.\nThe Company' 5 right to injunctive relief shall be cumulative and in addition to any other remedies provided by law or equity.\n11. Although the parties believe that the limitations as to time, geographical area and scope of activity contained herein are\nreasonable and do not impose a greater restraint than necessary to protect the goodwill or other business interests of the Company, if\nit is judicially determined otherwise, the limitations shall be reformed to the extent necessary to make them reasonable and not to\nimpose a restraint that is greater than necessary to protect the goodwill or other business interests of the Company.\nin. In any such case, the Company and I agree that the remaining provisions of this Section 4 shall be valid and binding as though\nany invalid or unenforceable provision had not been included.\n0. As an Employee. During my employment with the Company, I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company (other than terminating subordinate employees in the course of\nmy duties for the Company); (ii) Solicit any Business Partner; (iii) act in any capacity in or with respect to any commercial activity\nwhich competes, or is reasonably likely to compete, with any business that the Company conducts, proposes to conduct or\ndemonstrably anticipates conducting, at any time during my employment with the Company or (iv) enter into in an employment,\nconsulting or other similar relationship with another person or entity that requires a significant time commitment without the prior\nwritten consent of the Company.\nh. After Termination. For the period of twelve (12) months immediately following my termination of employment with the\nCompany (for any or no reason, whether voluntary or involuntary), I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company; or (ii) unless I am a resident of California (A) Solicit any\nBusiness Partner or (B) engage in any Competitive A ctivities (I) anywhere the Company offers its services or has customers during\nmy employment with the Company or where my use or disclosure of Proprietary Information could materially disadvantage the\nCompany regardless of my physical location; or (II) anywhere the Company offers its services or has customers and where l have\nresponsibility for the Company or (III) anywhere within a fifty (50) mile radius of any physical location I work for the Company. The\nforegoing timeframes shall be increased by the period of time beginning from the commencement of any violation of the foregoing\nprovisions until such time as l have cured such violation.\n5. Employment at Will. I agree that this Agreement is not an employment contract for any particular term. I have the right to\nresign and the Company has the right to terminate my employment at will, at any time, for any or no reason, with or without cause.\nThis Agreement does not purport to set forth all of the terms and conditions of my employment, and as an employee of the\nCompany, I have obligations to the Company which are not described in this Agreement. However, the terms of this Agreement\ngovern over any such terms that are inconsistent with this Agreement, and supersede the terms of any similar form that I may have\npreviously signed. This Agreement can only be changed by a subsequent written agreement signed by the Chief Executive Officer or\nPresident of the Company, or an officer designee authorized in writing by the foregoing or the Company' 5 Board of Directors.\n3. Survival. 1 agree that any change or changes in my employment title, duties, compensation, or equity interest after the signing\nof this A greement shall not affect the validity or scope of this A greement. I agree that the terms of this A greement, and any\nobligations l have hereunder, shall continue in effect after termination of my employment, regardless of the reason, and whether such\ntermination is voluntary or involuntary, and that the Company is entitled to communicate my obligations under this Agreement to any\nof my potential or future employers. I will provide a copy of this Agreement to any potential or future employers of mine, so that they\nare aware of my obligations hereunder. This Agreement, and any obligations l have hereunder, also shall be binding upon my heirs,\nexecutors, assigns and administrators, and shall inure to the benefit of the Company, its Affiliates, successors and assigns. This\nAgreement and any rights and obligations of the Company hereunder may be freely assigned and transferred by the Company, in\nwhole or part, to any third party.\n4. Miscellaneous. Any dispute in the meaning, effect or validity of this Agreement shall be resolved in accordance with (a) the\nlaws of the State of California if I am an employee located in the State of California, or, alternatively, (b) the laws of the State of\nDelaware, if I am employee located outside of the State of California, in either case, without regard to the conflict of laws provisions\nthereof. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a\nwaiver of such rights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right\nor remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If\none or more provisions of this Agreement is held to be illegal or unenforceable under applicable law, such illegal or unenforceable\nportion shall be limited or excluded from this Agreement to the minimum extent required so that this Agreement shall otherwise\nremain in full force and effect and enforceable. I acknowledge and agree that any breach or threatened breach of this Agreement will\ncause irreparable harm to\n \nthe Company for which damages would not be an adequate remedy, and, therefore, the Company is entitled to injunctive relief with respect thereto (without the necessity of posting any bond) in addition to any other remedies.\n[Signature Page Follows]\nI HAVE READ THIS AGREEMENT CAREFULLY AND [UNDERSTAND AND ACCEPT THE OBLIGATIONS THAT IT IMPOSES UPON ME WITHOUT RESERVATION. NO PROMISES 0R\nREPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY, WITH THE UNDERSTANDING THAT I EITHER\n(1) HAVE RETAINED A COPY OF THIS AGREEMENT 0R (2) MAY REQUEST A COPY OF THIS AGREEMENT FROM THE COMPANY AT ANY TIME.\nBOINGO WIRELESS, INC. EMPLOYEE\nBy: By:\nName: Name:\nTitle: Address:\nDated:\nDated:	EX-10.1 a18-18045 2ex10d1.htm EX-10.1\nExhibit F-2\nEMPLOYEE INVENTIONS AND PROPRIETARY INFORMATION AGREEMENT\nThe\nfollowing agreement (the Agreement") between Boingo Wireless, Inc., a Delaware corporation (the "Company"), and the individual\nidentified on the signature page to this A greement ("Employee" or "I") is effective as of the first day of Employee's employment by\nthe Company and confirms and memorializes the agreement that (regardless of the execution date hereof) the Company and I have\nhad since the commencement of my employment I acknowledge that this greement is a material part of the consideration for my\nemployment or continued employment by the Company. In exchange for the foregoing and for other good and valuable consideration,\nincluding my access to and use of the Company's Inventions (defined below) and Proprietary Information (defined below) for\nperformance of my employment, training and/or receipt of certain other valuable consideration, the parties agree as follows:\n1.\nNo C onflicts. I have not made, and agree not to make, any agreement, oral or written, that is in conflict with this A greement\nor my employment with the Company. I will not violate any agreement with, or the rights of, any third party. When acting within the\nscope of my employment (or otherwise on behalf of the Company), I will not use or disclose my own or any third party's confidential\ninformation or intellectual property (collectively, "Restricted Materials"), except as expressly authorized by the Company in writing.\nFurther, I have not retained anything containing or reflecting any confidential information or intellectual property of a prior employer\nor other third party, whether or not created by me.\n2.\nInventions.\nDefinitions. "Company Interest" means any of the Company's current and anticipated business, research and development, as\nwell as any product service, other Invention or Intellectual Property Rights (defined below) that is sold, leased, used, licensed,\nprovided, proposed, under consideration or under development by the Company. "Intellectual Property Rights" means any and all\npatent rights, copyright rights, trademark rights, mask work rights, trade secret rights, sui generis database rights and all other\nintellectual and industrial property rights of any sort throughout the world (including any application therefor and any rights to apply\ntherefor, as well as all rights to pursue remedies for infringement or violation thereof). "Invention" means any idea, concept,\ndiscovery, learning, invention, development, research, technology, work of authorship, trade secret, software, firmware, content,\naudio-visual material, tool, process, technique, know-how, data, plan, device, apparatus, specification, design, prototype, circuit,\nlayout, mask work, algorithm, program, code, documentation or other material or information, tangible or intangible, and all versions,\nmodifications, enhancements and derivative works thereof, whether or not it may be patented, copyrighted, trademarked or otherwise\nprotected.\nb.\nA ssignment. The Company shall own, and I hereby assign and agree to assign, all right, title and interest in and to all\nInventions (including all Intellectual Property Rights therein, related thereto or embodied therein) that are collected, made, conceived,\ndeveloped, reduced to practice or set out in any tangible medium of expression or otherwise created, in whole or in part (collectively\n"Created"), by me during the term of my employment with the Company that either (i) arise out of any use of the Company's\nfacilities, equipment, Proprietary Information or other assets (collectively "Company Assets") or any research or other activity\nconducted by, for or under the direction of the Company (whether or not conducted (A) at the Company's facilities; (B) during\nworking hours or (C) using Company Assets), or (ii) are useful with or in or relate directly or indirectly to any Company Interest\nI\nwill promptly disclose and provide all of the foregoing Inventions (the Assigned Inventions") to the Company. However, the\nforegoing does not purport to assign to the Company (and ssigned Inventions shall not include) any Invention that: (1) by law\n(including, without limitation, the applicable statutory provision for my state of employment set forth in Appendix A if any) I cannot\nbe required to so assign; or (2) otherwise meets all of the following requirements: (I) the Invention is Created entirely on my own\ntime; (II) the Invention is Created entirely without use of any Company ssets and (III) the Invention is not useful with or related\nto\nany Company Interest.. Nevertheless, if I believe any Invention Created by me during the term of my employment is not within the\ndefinition of ssigned Inventions, I will nevertheless disclose it to the Company so that the Company may make its assessment\nAssurances. I hereby make and agree to make all assignments to the Company necessary to effectuate and accomplish the\nCompany's ownership in and to all ssigned Inventions. I will further assist the Company, at its expense, to evidence, record and\nperfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights specified to be so owned or assigned. I\nhereby irrevocably designate and appoint the Company and its officers as my agents and attorneys-in-fact, coupled with an interest, to\nact for and on my behalf to execute and file any document and to perform all other lawfully permitted acts to further the purposes of\nthe foregoing with the same legal force and effect as if executed by me.\nd.\nOther Inventions. If (i) I use or disclose any Restricted Materials when acting within the scope of my employment (or\notherwise to or on behalf of the Company) or (ii) any ssigned Invention cannot be fully made, used, reproduced, sold, distributed,\nmodified, commercialized or otherwise exploited (collectively, "Exploited") without using, misappropriating, infringing or violating\nany Restricted Materials, I hereby grant and agree to grant to the Company a perpetual, irrevocable, worldwide, full paid-up,\nroyalty-free, non-exclusive, assignable, transferable, sublicensable right and license to use, disclose, fully Exploit and exercise all\nrights in such Restricted Materials and all Intellectual Property Rights embodied therein or related thereto. I will not use or disclose\nany Restricted Materials for which I am not fully authorized to grant the foregoing license.\nMoral Rights. To the extent allowed by applicable law, the terms of this Section 2 include all rights of paternity, integrity,\ndisclosure,\nwithdrawal\nand\nany\nother\nrights\nthat\nmay\nbe\nknown\nor\nreferred\nto\nas\nmoral\nrights,\nartist's\nrights,\ndroit\nmoral\nor\nthe\nlike\n(collectively, "Moral Rights"). To the extent I retain any such Moral Rights under applicable law, I hereby ratify and consent to any\naction that may be taken with respect to such Moral Rights by or authorized by the Company, and agree not to assert any Moral\nRights with respect thereto. I will confirm any such ratification,\nconsent or agreement from time to time as requested by the Company. Furthermore, I agree that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world and without any further\ncompensation, the Company may and is hereby authorized to use my name likeness and voice in connection with promotion of its business, products and services, and to allow others to do the same.\n3.\nProprietary Information.\nDefinition; Restrictions on Use. I agree that all Assigned Inventions (and all other financial, business, legal and technical\ninformation regarding or relevant to any Company Interest that is not generally publicly known), including the identity of and any\nother information relating to the Company's employees, A ffiliates and Business Partners (as such terms are defined below), that I\ndevelop, learn or obtain during my employment or that are received by or for the Company in confidence, constitute "Proprietary\nInformation." I will hold in strict confidence and not directly or indirectly disclose or use any Proprietary Information, except as\nrequired within the scope of my employment. My obligation of nondisclosure and nonuse of Proprietary Information under this\nSection shall continue until I can document that it is or becomes readily generally available to the public without restriction through\nno fault of mine (including breach of this A greement)) or, if a court requires a shorter duration, then the maximum time allowable by\nlaw will control. Furthermore, I understand that this Agreement does not affect my immunity under 18 USC Sections 1833(b) (1) or\n(2), which read as follows:\n(1) An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a\ntrade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to\nan attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.\n(2)\nAn individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the\ntrade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual\n(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to\ncourt order.\nb.\nUpon Termination. Upon termination of my employment (for any or no reason, whether voluntary or involuntary), I will\npromptly identify and, as directed by the Company, destroy, delete or return to the Company all items containing or embodying\nProprietary Information (including all original or copies of content, whether in electronic or hard-copy form), except that I may keep\nmy personal copies of (i) my compensation records; (ii) materials distributed to shareholders generally and (iii) this greement.\nCompany Systems. I also recognize and agree that I have no expectation of privacy with respect to the Company's networks,\ntelecommunications systems or information processing systems (including, without limitation, stored computer files, email messages\nand voicemail messages or other devices (including personal devices) in which Company Proprietary Information resides, is stored or\nis passed through ("Company Systems"), and in order to ensure compliance with work rules and safety concerns, the Company or its\nagents may monitor, at any time and without further notice to me, any Company Systems and any of my activity, files or messages on\nor using any Company Systems, regardless of whether such activity occurs on equipment owned by me or the Company. I further\nagree that any property situated on the Company's premises and owned, leased or otherwise possessed by the Company, including\ncomputers, computer files, email, voicemail, storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. I understand and acknowledge that (A) any such searches or monitoring efforts are not\nformal accusations of wrongdoing but rather part of the procedure of an investigation and (B) refusal to consent to such a search may\nbe grounds for discipline.\n4.\nRestricted Activities. For the purposes of this Section 4, the term "the Company" includes the Company and all other persons\nor entities that control, are controlled by or are under common control with the Company Affiliates") and for whom Employee\nperformed responsibilities or about whom Employee has Proprietary Information.\nf.\nDefinitions. "Competitive ctivities" means any direct or indirect non-Company activity (i) that is the same or substantially\nsimilar to Employee's responsibilities for the Company that relates to, is substantially similar to, or competes with the Company (or\nits demonstrably planned interests) at the time of Employee's termination from the Company; or (ii) involving the use or disclosure,\nor the likelihood of the use or disclosure, of Proprietary Information. Competitive A ctivities do not include being a holder of less than\none percent (1%) of the outstanding equity of a public company. "Business Partner" means any past (i.e., within the twelve (12)\nmonths preceding Employee's termination from the Company), present or prospective (i.e., actively pursued by the Company within\nthe twelve (12) months preceding Employee's termination from the Company) customer, vendor, supplier, distributor or other\nbusiness partner of the Company with whom Employee comes into contact during Employee's employment with the Company or\nabout whom Employee had knowledge by reason of Employee's relationship with the Company or because of Employee's access to\nProprietary Information. "Cause" means to recruit, employ, retain or otherwise solicit, induce or influence, or to attempt to do so\n(provided that if I am a resident of California, "Cause" means to recruit, or otherwise solicit, induce or influence, or to attempt to do\nso). "Solicit", with respect to Business Partners, means to (A) service, take orders from or solicit the business or patronage of any\nBusiness Partner for Employee or any other person or entity, (B) divert, entice or otherwise take away from the Company the\nbusiness or patronage of any Business Partner, or to attempt to do so, or (C) solicit, induce or encourage any Business Partner to\nterminate or reduce its relationship with the Company.\ng.\nAcknowledgments.\nI acknowledge and agree that (A) the Company's business is highly competitive; (B) secrecy of the Proprietary Information is\nof the utmost importance to the Company, and I will learn and use Proprietary Information in the course of performing my work for\nthe Company and (C) my position may require me to establish\ngoodwill with Business Partners and employees on behalf of the Company and such goodwill is extremely important to the Company's success, and the Company has made substantia investments to develop its business interests and\ngoodwill.\nii.\nI agree that the limitations as to time, geographical area and scope of activity to be restrained in this Section 4 are coextensive\nwith the Company's footprint and my performance of responsibilities for the Company and are therefore reasonable and not greater\nthan\nnecessary\nto\nprotect\nthe\ngoodwill\nor\nother\nbusiness\ninterests\nof\nthe\nCompany.\nI\nfurther\nagree\nthat\nsuch\ninvestments\nare\nworthy\nof\nprotection and that the Company's need for protection afforded by this Section 4 is greater than any hardship I may experience by\ncomplying with its terms.\nI acknowledge that my violation or attempted violation of the agreements in this Section 4 will cause irreparable damage to\nthe Company or its ffiliates, and I therefore agree that the Company shall be entitled as a matter of right to an injunction out of any\ncourt of competent jurisdiction, restraining any violation or further violation of such agreements by me or others acting on my behalf.\nThe Company's right to injunctive relief shall be cumulative and in addition to any other remedies provided by law or equity.\nii.\nAlthough the parties believe that the limitations as to time, geographical area and scope of activity contained herein are\nreasonable and do not impose a greater restraint than necessary to protect the goodwill or other business interests of the Company, if\nit is judicially determined otherwise, the limitations shall be reformed to the extent necessary to make them reasonable and not to\nimpose a restraint that is greater than necessary to protect the goodwill or other business interests of the Company.\niii.\nIn any such case, the Company and I agree that the remaining provisions of this Section 4 shall be valid and binding as though\nany invalid or unenforceable provision had not been included.\nAs an Employee. During my employment with the Company, I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company (other than terminating subordinate employees in the course\nof\nmy duties for the Company); (ii) Solicit any Business Partner; (iii) act in any capacity in or with respect to any commercial activity\nwhich competes, or is reasonably likely to compete, with any business that the Company conducts, proposes to conduct or\ndemonstrably anticipates conducting, at any time during my employment with the Company or (iv) enter into in an employment,\nconsulting or other similar relationship with another person or entity that requires a significant time commitment without the prior\nwritten consent of the Company.\nh.\nAfter Termination. For the period of twelve (12) months immediately following my termination of employment with the\nCompany (for any or no reason, whether voluntary or involuntary), I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company; or (ii) unless I am a resident of California (A) Solicit any\nBusiness Partner or (B) engage in any Competitive A ctivities (I) anywhere the Company offers its services or has customers during\nmy employment with the Company or where my use or disclosure of Proprietary Information could materially disadvantage the\nCompany regardless of my physical location; or (II) anywhere the Company offers its services or has customers and where I have\nresponsibility for the Company or (III) anywhere within a fifty (50) mile radius of any physical location I work for the Company. The\nforegoing timeframes shall be increased by the period of time beginning from the commencement of any violation of the foregoing\nprovisions until such time as I have cured such violation.\n5.\nEmployment at Will. I agree that this A greement is not an employment contract for any particular term. I have the right to\nresign and the Company has the right to terminate my employment at will at any time, for any or no reason, with or without cause.\nThis A greement does not purport to set forth all of the terms and conditions of my employment, and as an employee of the\nCompany, I have obligations to the Company which are not described in this A greement However, the terms of this A greement\ngovern over any such terms that are inconsistent with this greement, and supersede the terms of any similar form that I may have\npreviously signed. This greement can only be changed by a subsequent written agreement signed by the Chief Executive Officer or\nPresident of the Company, or an officer designee authorized in writing by the foregoing or the Company's Board of Directors.\n3.\nSurvival. I agree that any change or changes in my employment title, duties, compensation, or equity interest after the signing\nof this A greement shall not affect the validity or scope of this greement. I agree that the terms of this A greement, and any\nobligations I have hereunder, shall continue in effect after termination of my employment regardless of the reason, and whether such\ntermination is voluntary or involuntary, and that the Company is entitled to communicate my obligations under this Agreement to any\nof my potential or future employers. I will provide a copy of this greement to any potential or future employers of mine, so that they\nare aware of my obligations hereunder. This Agreement, and any obligations I have hereunder, also shall be binding upon my heirs,\nexecutors, assigns and administrators, and shall inure to the benefit of the Company, its Affiliates, successors and assigns. This\ngreement and any rights and obligations of the Company hereunder may be freely assigned and transferred by the Company, in\nwhole or part, to any third party\n4.\nMiscellaneous. ny dispute in the meaning, effect or validity of this A greement shall be resolved in accordance with (a) the\nlaws of the State of California if I am an employee located in the State of California, or, alternatively, (b) the laws of the State of\nDelaware, if I am employee located outside of the State of California, in either case, without regard to the conflict of laws provisions\nthereof. The failure of either party to enforce its rights under this A greement at any time for any period shall not be construed as\na\nwaiver of such rights. Unless expressly provided otherwise, each right and remedy in this A greement is in addition to any other right\nor remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy If\none or more provisions of this A greement is held to be illegal or unenforceable under applicable law, such illegal or unenforceable\nportion shall be limited or excluded from this Agreement to the minimum extent required so that this A greement shall otherwise\nremain in full force and effect and enforceable. I acknowledge and agree that any breach or threatened breach of this Agreement will\ncause irreparable harm to\nthe Company for which damages would not be an adequate remedy, and, therefore, the Company is entitled to injunctive relief with respect thereto (without the necessity of posting any bond) in addition to any other remedies.\n[Signature Page Follows]\nI HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS THAT IT IMPOSES UPON ME WITHOUT RESERVATION NO PROMISES OR\nREPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN SIGN THIS THIS AGREEMENT VOLUNTARILY AND FREELY, WITH THE UNDERSTANDING THAT I EITHER\n(1) HAVE RETAINED A COPY OF THIS AGREEMENT OR (2) MAY REQUEST A COPY OF THIS AGREEMENT FROM THE COMPANY AT ANY TIME.\nBOINGO WIRELESS, INC.\nEMPLOYEE\nBy:\nBy:\nName:\nName:\nTitle:\nAddress:\nDated:\nDated:	EX-10 .1 2 a18-18045 _2ex10d1.htm EX-10.1\nExhibit F-2\nEMPLOYEE INVENTIONS AND PROPRIETARY INFORMATION AGREEMENT\nThe following agreement (the “Agreement”) between Boingo Wireless, Inc., a Delaware corporation (the “Company”), and the individual\nidentified on the signature page to this Agreement (“Employee” or “I”) is effective as of the first day of Employee’s employment by\nthe Company and confirms and memorializes the agreement that (regardless of the execution date hereof) the Company and I have\nhad since the commencement of my employment. I acknowledge that this Agreement is a material part of the consideration for my\nemployment or continued employment by the Company. In exchange for the foregoing and for other good and valuable consideration,\nincluding my access to and use of the Company’s Inventions (defined below) and Proprietary Information (defined below) for\nperformance of my employment, training and/or receipt of certain other valuable consideration, the parties agree as follows:\n1.\nNo Conflicts. I have not made, and agree not to make, any agreement, oral or written, that is in conflict with this Agreement\nor my employment with the Company. I will not violate any agreement with, or the rights of, any third party. When acting within the\nscope of my employment (or otherwise on behalf of the Company), I will not use or disclose my own or any third party’s confidential\ninformation or intellectual property (collectively, “Restricted Materials”), except as expressly authorized by the Company in writing.\nFurther, I have not retained anything containing or reflecting any confidential information or intellectual property of a prior employer\nor other third party, whether or not created by me.\n2.\nInventions.\na.\nDefinitions. “Company Interest” means any of the Company’s current and anticipated business, research and development, as\nwell as any product, service, other Invention or Intellectual Property Rights (defined below) that is sold, leased, used, licensed,\nprovided, proposed, under consideration or under development by the Company. “Intellectual Property Rights” means any and all\npatent rights, copyright rights, trademark rights, mask work rights, trade secret rights, sui generis database rights and all other\nintellectual and industrial property rights of any sort throughout the world (including any application therefor and any rights to apply\ntherefor, as well as all rights to pursue remedies for infringement or violation thereof). “Invention” means any idea, concept,\ndiscovery, learning, invention, development, research, technology, work of authorship, trade secret, software, firmware, content,\naudio-visual material, tool, process, technique, know-how, data, plan, device, apparatus, specification, design, prototype, circuit,\nlayout, mask work, algorithm, program, code, documentation or other material or information, tangible or intangible, and all versions,\nmodifications, enhancements and derivative works thereof, whether or not it may be patented, copyrighted, trademarked or otherwise\nprotected.\nb.\nAssignment. The Company shall own, and I hereby assign and agree to assign, all right, title and interest in and to all\nInventions (including all Intellectual Property Rights therein, related thereto or embodied therein) that are collected, made, conceived,\ndeveloped, reduced to practice or set out in any tangible medium of expression or otherwise created, in whole or in part (collectively\n“Created”), by me during the term of my employment with the Company that either (i) arise out of any use of the Company’s\nfacilities, equipment, Proprietary Information or other assets (collectively “Company Assets”) or any research or other activity\nconducted by, for or under the direction of the Company (whether or not conducted (A) at the Company’s facilities; (B) during\nworking hours or (C) using Company Assets), or (ii) are useful with or in or relate directly or indirectly to any Company Interest. I\nwill promptly disclose and provide all of the foregoing Inventions (the “Assigned Inventions”) to the Company. However, the\nforegoing does not purport to assign to the Company (and Assigned Inventions shall not include) any Invention that: (1) by law\n(including, without limitation, the applicable statutory provision for my state of employment set forth in Appendix A, if any) I cannot\nbe required to so assign; or (2) otherwise meets all of the following requirements: (I) the Invention is Created entirely on my own\ntime; (II) the Invention is Created entirely without use of any Company Assets and (III) the Invention is not useful with or related to\nany Company Interest.. Nevertheless, if I believe any Invention Created by me during the term of my employment is not within the\ndefinition of Assigned Inventions, I will nevertheless disclose it to the Company so that the Company may make its assessment.\nc.\nAssurances. I hereby make and agree to make all assignments to the Company necessary to effectuate and accomplish the\nCompany’s ownership in and to all Assigned Inventions. I will further assist the Company, at its expense, to evidence, record and\nperfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights specified to be so owned or assigned. I\nhereby irrevocably designate and appoint the Company and its officers as my agents and attorneys-in-fact, coupled with an interest, to\nact for and on my behalf to execute and file any document and to perform all other lawfully permitted acts to further the purposes of\nthe foregoing with the same legal force and effect as if executed by me.\nd.\nOther Inventions. If (i) I use or disclose any Restricted Materials when acting within the scope of my employment (or\notherwise to or on behalf of the Company) or (ii) any Assigned Invention cannot be fully made, used, reproduced, sold, distributed,\nmodified, commercialized or otherwise exploited (collectively, “Exploited”) without using, misappropriating, infringing or violating\nany Restricted Materials, I hereby grant and agree to grant to the Company a perpetual, irrevocable, worldwide, full paid-up,\nroyalty-free, non-exclusive, assignable, transferable, sublicensable right and license to use, disclose, fully Exploit and exercise all\nrights in such Restricted Materials and all Intellectual Property Rights embodied therein or related thereto. I will not use or disclose\nany Restricted Materials for which I am not fully authorized to grant the foregoing license.\ne.\nMoral Rights. To the extent allowed by applicable law, the terms of this Section 2 include all rights of paternity, integrity,\ndisclosure, withdrawal and any other rights that may be known or referred to as moral rights, artist’s rights, droit moral or the like\n(collectively, “Moral Rights”). To the extent I retain any such Moral Rights under applicable law, I hereby ratify and consent to any\naction that may be taken with respect to such Moral Rights by or authorized by the Company, and agree not to assert any Moral\nRights with respect thereto. I will confirm any such ratification,\nconsent or agreement from time to time as requested by the Company. Furthermore, I agree that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world and without any further\ncompensation, the Company may and is hereby authorized to use my name, likeness and voice in connection with promotion of its business, products and services, and to allow others to do the same.\n3.\nProprietary Information.\na.\nDefinition; Restrictions on Use. I agree that all Assigned Inventions (and all other financial, business, legal and technical\ninformation regarding or relevant to any Company Interest that is not generally publicly known), including the identity of and any\nother information relating to the Company’s employees, Affiliates and Business Partners (as such terms are defined below), that I\ndevelop, learn or obtain during my employment or that are received by or for the Company in confidence, constitute “Proprietary\nInformation.” I will hold in strict confidence and not directly or indirectly disclose or use any Proprietary Information, except as\nrequired within the scope of my employment. My obligation of nondisclosure and nonuse of Proprietary Information under this\nSection shall continue until I can document that it is or becomes readily generally available to the public without restriction through\nno fault of mine (including breach of this Agreement)) or, if a court requires a shorter duration, then the maximum time allowable by\nlaw will control. Furthermore, I understand that this Agreement does not affect my immunity under 18 USC Sections 1833(b) (1) or\n(2), which read as follows:\n(1) An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a\ntrade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to\nan attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.\n(2) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the\ntrade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual\n(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to\ncourt order.\nb.\nUpon Termination. Upon termination of my employment (for any or no reason, whether voluntary or involuntary), I will\npromptly identify and, as directed by the Company, destroy, delete or return to the Company all items containing or embodying\nProprietary Information (including all original or copies of content, whether in electronic or hard-copy form), except that I may keep\nmy personal copies of (i) my compensation records; (ii) materials distributed to shareholders generally and (iii) this Agreement.\nc.\nCompany Systems. I also recognize and agree that I have no expectation of privacy with respect to the Company’s networks,\ntelecommunications systems or information processing systems (including, without limitation, stored computer files, email messages\nand voicemail messages or other devices (including personal devices) in which Company Proprietary Information resides, is stored or\nis passed through (“Company Systems”), and in order to ensure compliance with work rules and safety concerns, the Company or its\nagents may monitor, at any time and without further notice to me, any Company Systems and any of my activity, files or messages on\nor using any Company Systems, regardless of whether such activity occurs on equipment owned by me or the Company. I further\nagree that any property situated on the Company’s premises and owned, leased or otherwise possessed by the Company, including\ncomputers, computer files, email, voicemail, storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. I understand and acknowledge that (A) any such searches or monitoring efforts are not\nformal accusations of wrongdoing but rather part of the procedure of an investigation and (B) refusal to consent to such a search may\nbe grounds for discipline.\n4.\nRestricted Activities. For the purposes of this Section 4, the term “the Company” includes the Company and all other persons\nor entities that control, are controlled by or are under common control with the Company (“Affiliates”) and for whom Employee\nperformed responsibilities or about whom Employee has Proprietary Information.\nf.\nDefinitions. “Competitive Activities” means any direct or indirect non-Company activity (i) that is the same or substantially\nsimilar to Employee’s responsibilities for the Company that relates to, is substantially similar to, or competes with the Company (or\nits demonstrably planned interests) at the time of Employee’s termination from the Company; or (ii) involving the use or disclosure,\nor the likelihood of the use or disclosure, of Proprietary Information. Competitive Activities do not include being a holder of less than\none percent (1%) of the outstanding equity of a public company. “Business Partner” means any past (i.e ., within the twelve (12)\nmonths preceding Employee’s termination from the Company), present or prospective (i.e ., actively pursued by the Company within\nthe twelve (12) months preceding Employee’s termination from the Company) customer, vendor, supplier, distributor or other\nbusiness partner of the Company with whom Employee comes into contact during Employee’s employment with the Company or\nabout whom Employee had knowledge by reason of Employee’s relationship with the Company or because of Employee’s access to\nProprietary Information. “Cause” means to recruit, employ, retain or otherwise solicit, induce or influence, or to attempt to do so\n(provided that if I am a resident of California, “Cause” means to recruit, or otherwise solicit, induce or influence, or to attempt to do\nso). “Solicit”, with respect to Business Partners, means to (A) service, take orders from or solicit the business or patronage of any\nBusiness Partner for Employee or any other person or entity, (B) divert, entice or otherwise take away from the Company the\nbusiness or patronage of any Business Partner, or to attempt to do so, or (C) solicit, induce or encourage any Business Partner to\nterminate or reduce its relationship with the Company.\ng.\nAcknowledgments.\ni.\nI acknowledge and agree that (A) the Company’s business is highly competitive; (B) secrecy of the Proprietary Information is\nof the utmost importance to the Company, and I will learn and use Proprietary Information in the course of performing my work for\nthe Company and (C) my position may require me to establish\ngoodwill with Business Partners and employees on behalf of the Company and such goodwill is extremely important to the Company’s success, and the Company has made substantial investments to develop its business interests and\ngoodwill.\nii.\nI agree that the limitations as to time, geographical area and scope of activity to be restrained in this Section 4 are coextensive\nwith the Company’s footprint and my performance of responsibilities for the Company and are therefore reasonable and not greater\nthan necessary to protect the goodwill or other business interests of the Company. I further agree that such investments are worthy of\nprotection and that the Company’s need for protection afforded by this Section 4 is greater than any hardship I may experience by\ncomplying with its terms.\ni.\nI acknowledge that my violation or attempted violation of the agreements in this Section 4 will cause irreparable damage to\nthe Company or its Affiliates, and I therefore agree that the Company shall be entitled as a matter of right to an injunction out of any\ncourt of competent jurisdiction, restraining any violation or further violation of such agreements by me or others acting on my behalf.\nThe Company’s right to injunctive relief shall be cumulative and in addition to any other remedies provided by law or equity.\nii.\nAlthough the parties believe that the limitations as to time, geographical area and scope of activity contained herein are\nreasonable and do not impose a greater restraint than necessary to protect the goodwill or other business interests of the Company, if\nit is judicially determined otherwise, the limitations shall be reformed to the extent necessary to make them reasonable and not to\nimpose a restraint that is greater than necessary to protect the goodwill or other business interests of the Company.\niii.\nIn any such case, the Company and I agree that the remaining provisions of this Section 4 shall be valid and binding as though\nany invalid or unenforceable provision had not been included.\nc.\nAs an Employee. During my employment with the Company, I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company (other than terminating subordinate employees in the course of\nmy duties for the Company); (ii) Solicit any Business Partner; (iii) act in any capacity in or with respect to any commercial activity\nwhich competes, or is reasonably likely to compete, with any business that the Company conducts, proposes to conduct or\ndemonstrably anticipates conducting, at any time during my employment with the Company or (iv) enter into in an employment,\nconsulting or other similar relationship with another person or entity that requires a significant time commitment without the prior\nwritten consent of the Company.\nh.\nAfter Termination. For the period of twelve (12) months immediately following my termination of employment with the\nCompany (for any or no reason, whether voluntary or involuntary), I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company; or (ii) unless I am a resident of California (A) Solicit any\nBusiness Partner or (B) engage in any Competitive Activities (I) anywhere the Company offers its services or has customers during\nmy employment with the Company or where my use or disclosure of Proprietary Information could materially disadvantage the\nCompany regardless of my physical location; or (II) anywhere the Company offers its services or has customers and where I have\nresponsibility for the Company or (III) anywhere within a fifty (50) mile radius of any physical location I work for the Company. The\nforegoing timeframes shall be increased by the period of time beginning from the commencement of any violation of the foregoing\nprovisions until such time as I have cured such violation.\n5.\nEmployment at Will. I agree that this Agreement is not an employment contract for any particular term. I have the right to\nresign and the Company has the right to terminate my employment at will, at any time, for any or no reason, with or without cause.\nThis Agreement does not purport to set forth all of the terms and conditions of my employment, and as an employee of the\nCompany, I have obligations to the Company which are not described in this Agreement. However, the terms of this Agreement\ngovern over any such terms that are inconsistent with this Agreement, and supersede the terms of any similar form that I may have\npreviously signed. This Agreement can only be changed by a subsequent written agreement signed by the Chief Executive Officer or\nPresident of the Company, or an officer designee authorized in writing by the foregoing or the Company’s Board of Directors.\n3.\nSurvival. I agree that any change or changes in my employment title, duties, compensation, or equity interest after the signing\nof this Agreement shall not affect the validity or scope of this Agreement. I agree that the terms of this Agreement, and any\nobligations I have hereunder, shall continue in effect after termination of my employment, regardless of the reason, and whether such\ntermination is voluntary or involuntary, and that the Company is entitled to communicate my obligations under this Agreement to any\nof my potential or future employers. I will provide a copy of this Agreement to any potential or future employers of mine, so that they\nare aware of my obligations hereunder. This Agreement, and any obligations I have hereunder, also shall be binding upon my heirs,\nexecutors, assigns and administrators, and shall inure to the benefit of the Company, its Affiliates, successors and assigns. This\nAgreement and any rights and obligations of the Company hereunder may be freely assigned and transferred by the Company, in\nwhole or part, to any third party.\n4.\nMiscellaneous. Any dispute in the meaning, effect or validity of this Agreement shall be resolved in accordance with (a) the\nlaws of the State of California if I am an employee located in the State of California, or, alternatively, (b) the laws of the State of\nDelaware, if I am employee located outside of the State of California, in either case, without regard to the conflict of laws provisions\nthereof. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a\nwaiver of such rights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right\nor remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If\none or more provisions of this Agreement is held to be illegal or unenforceable under applicable law, such illegal or unenforceable\nportion shall be limited or excluded from this Agreement to the minimum extent required so that this Agreement shall otherwise\nremain in full force and effect and enforceable. I acknowledge and agree that any breach or threatened breach of this Agreement will\ncause irreparable harm to\nthe Company for which damages would not be an adequate remedy, and, therefore, the Company is entitled to injunctive relief with respect thereto (without the necessity of posting any bond) in addition to any other remedies.\n[Signature Page Follows]\nI HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS THAT IT IMPOSES UPON ME WITHOUT RESERVATION. NO PROMISES OR\nREPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY , WITH THE UNDERSTANDING THAT I EITHER\n(1) HAVE RETAINED A COPY OF THIS AGREEMENT OR (2) MAY REQUEST A COPY OF THIS AGREEMENT FROM THE COMPANY AT ANY TIME.\nBOINGO WIRELESS, INC .\nEMPLOYEE\nBy:\nBy:\nName:\nName:\nTitle:\nAddress:\nDated:\nDated:
4d4100dcc541a7bedcd3e72a5abeba60.pdf	effective_date jurisdiction party term	EX-10.13 3 dex1013.htm NON-DISCLOSURE, NON-SOLICITATION & NON-COMPETITION AGREEMENT\nDATED 11/16/2009\nExhibit 10.13\nLOGO\nNON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your promotion to EVP – Direct and continued employment with or provision of services to J. Crew Group, Inc. and its\naffiliates (collectively, the “Company”) and for other good and valuable consideration described below, receipt of which is hereby acknowledged,\nyou agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as “Confidential Information.” You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked “confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”) compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of\n770 Broadway New York NY 10003 Tel 212 209 2500 Fax 212 209 2666\nthe goodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the\nCompany’s employ and for the period of twelve months after the termination of your employment, for any reason whatsoever, you shall not directly\nor indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company from time to time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Annual Bonuses and Signing Bonus. As additional consideration for you entering into this Agreement and agreeing to the covenants\ncontained herein, the Company will provide you with the following:\n(a) You will continue to have the opportunity to earn an annual bonus(es) under the Company’s bonus plan. Starting with FY 2010,\nprovided that both the Company achieves certain performance objectives (which will be determined by the Company in each fiscal year in\naccordance with the Company’s bonus plan) and you achieve your performance goals, you will be eligible to receive an annual bonus with a\ntarget of 50% of your base salary, up to a maximum bonus of 100% of your base salary. Such annual bonus(es) will be paid only if you are\nactively employed by the Company and not in breach of this Agreement on the date(s) of actual payment(s).\n(b) A one-time bonus payment of $50,000 (less all authorized or required payroll withholdings and payroll deductions) (“Bonus\nPayment”) payable within thirty days after you execute and return this Agreement; provided that you will be required to immediately pay back\na pro-rata portion of such Bonus Payment in the event you voluntarily terminate your employment with the Company or your employment is\nterminated by the Company for Cause, as defined below, within one year after the date of this Agreement. The pro-ration shall be determined\nbased on the number of full months having elapsed from the date of this Agreement to your last date of employment, divided by twelve.\n(c) Subject to the approval of the Compensation Committee of the Board of Directors, a restricted stock grant of 10,000 shares of the\nCompany’s common stock (the “Restricted Stock Grant”). The Restricted Stock Grant shall vest 50% on the third anniversary of the grant date\nand 50% on the fourth anniversary of the grant date. The Restricted Stock Grant shall be subject to and governed by the terms and conditions\nof the Company’s 2008 Amended and Restated Equity Incentive Plan and shall be evidenced by a separate restricted stock agreement.\n2\n4. Termination Without Cause. Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b) the\nCompany does not consent to waive any of the post-employment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to\nCompany an irrevocable Separation Agreement and Release, within 60 days after your termination of employment (and any payment that constitutes\nnon-qualified deferred compensation under Section 409 A of the Internal Revenue Code of 1986, as amended and any regulations thereunder (the\n“Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at the expiration of such 60-day period), in\na form acceptable to the Company, the Company will pay you a severance payment equal to (i) a lump sum amount equal to the product of (x) the\nannual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in the fiscal year which\nincludes the date of your termination of employment had your employment not been terminated and (y) a fraction, the numerator of which is the\nnumber of days in the fiscal year that includes the date of your termination through the date of such termination and the denominator of which is\n365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15 day of the third month following the\nend of the year with respect to which such bonus was earned; (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable\ndeductions, according to the Company’s normal payroll practices for a period coextensive with the restricted period (twelve months); and (iii) during\nthe restricted period, reimbursement for out-of-pocket COBRA payments paid by you to continue your group health benefits, provided you submit\nrelevant supporting documentation to the Company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right\nto receive the foregoing payments (collectively, the “Salary Continuation Payments”) shall terminate effective immediately upon the date that you\nbecome employed by another entity as an employee, consultant or otherwise, and you agree to notify the Executive Vice-President of Human\nResources in writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources,\n(a) you will forfeit your right to receive the Salary Continuation Payments described above (to the extent the Salary Continuation Payments were not\ntheretofore paid) and (b) the Company shall be entitled to recover any Salary Continuation Payments already made to you or on your behalf.\nNotwithstanding the foregoing paragraph, in the event your employment is terminated by the Company without Cause, and you are a\n“specified employee” within the meaning of Section 409A of Code (as determined in accordance with the methodology established by the Company\nas in effect on the date of your termination), and the Salary Continuation Payments described above to be paid within the first six months following\nsuch date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A -l(b)(9)(iii)(A) (the “Limit”), then: (i) any\nportion of the Salary Continuation Payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the\ntimes set forth above; (ii) any portion of the Salary Continuation Payments that are a “short-term deferral” within the meaning of Treas. Regs.\nSection 1.409A-l(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation Payments that exceeds the Limit and\nare not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the Limit) shall be paid on the first business\nday after the six-month anniversary of the Termination Date or, if earlier, on the date of your death; and (iv) any portion of the Salary Continuation\nPayments that are payable after the Initial Payment Period shall be paid at the times set forth above. It is intended that each\n3\nth\ninstallment, if any, of the payments and benefits, if any, provided to you under this Section 3 shall be treated as a separate “payment” for purposes of\nSection 409A of the Code.\nFor purposes of this agreement, “Cause” means (i) you have acted in bad faith and to the detriment of the Company; (ii) you have refused or\nfailed to act in accordance with any specific lawful direction or order of supervisory personnel; (iii) you have exhibited in regard to your\nemployment unfitness or unavailability for service, misconduct, dishonesty, habitual neglect, incompetence, or have committed an act of\nembezzlement, fraud or theft with respect to the property of the Company; (iv) you have abused alcohol or drugs on the job or in a manner which\naffects your job; (v) you have been found guilty of or have plead nolo contendere to the commission of a crime involving dishonesty, breach of trust,\nor physical or emotional harm to any person; (vi) you have breached any material term of this Agreement or of any Company policy; and/or\n(vii) your death or disability (such that you cannot perform the essential functions of the job, with or without accommodation). No payment will be\nrequired if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in paragraph 2(a)\nherein or if the conditions set forth in this paragraph are otherwise not met.\n5. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n“Cause,” as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the termination\ndate. In the event of termination for Cause or your resignation, the Company will not pay any severance, and the restrictions contained in paragraph\n2(a) above will remain in full force and effect unless waived by the Company.\n6. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company’s request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 4 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n7. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be cumulative with\nthose remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by you, the Company\nshall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief including, without\nlimitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as reimbursement from you\nfor any attorneys’ fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement of any legal or equitable\nremedy shall be construed as a waiver or prohibition against pursuing any\n4\nother legal or equitable remedies in the event of a threatened or actual breach of this agreement by you.\n8. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n9. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n10. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\n11. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this agreement)\nwould cause you to incur any additional tax or interest under Section 409 A of the Code, the Company and you shall reasonably cooperate to reform\nsuch provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without violating 409A of the Code,\nthe original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require the Company to provide you\nwith any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED:\nSignature: /s/ Trish Donnelly\nPrint Name: Trish Donnelly\nTrish Donnelly\nDate:\n11/16/2009\n5\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON -COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nAeropostale\nAbercrombie & Fitch brands\nAmerican Eagle brands\nAnn Taylor\nCoach\nGap brands\nKate Spade\nLimited brands\nLiz Claiborne Brands\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nTory Burch\nUrban Outfitters brands\nAny retail apparel start-up operated by one of the above companies\n6	EX-10.13 3 dex1013.htm NON-DISCLOSURE, NON-SOLICITATION & NON-COMPETITION AGREEMENT\nDATED 11/16/2009\nExhibit 10.13\n».LOGO\nNON-DISCL.OSURE, NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your promotion to EVP — Direct and continued employment with or provision of services to J. Crew Group, Inc. and its\naffiliates (collectively, the “Company”) and for other good and valuable consideration described below, receipt of which is hereby acknowledged,\nyou agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as “Confidential Information.” You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked “confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”) compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of\n770 Broadway New York NY 10003 Tel 212 209 2500 Fax 212 209 2666\nthe goodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the\nCompany’s employ and for the period of twelve months after the termination of your employment, for any reason whatsoever, you shall not directly\nor indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company from time to time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Annual Bonuses and Signing Bonus. As additional consideration for you entering into this Agreement and agreeing to the covenants\ncontained herein, the Company will provide you with the following:\n(a) You will continue to have the opportunity to earn an annual bonus(es) under the Company’s bonus plan. Starting with FY 2010,\nprovided that both the Company achieves certain performance objectives (which will be determined by the Company in each fiscal year in\naccordance with the Company’s bonus plan) and you achieve your performance goals, you will be eligible to receive an annual bonus with a\ntarget of 50% of your base salary, up to a maximum bonus of 100% of your base salary. Such annual bonus(es) will be paid only if you are\nactively employed by the Company and not in breach of this Agreement on the date(s) of actual payment(s).\n(b) A one-time bonus payment of $50,000 (less all authorized or required payroll withholdings and payroll deductions) (“Bonus\nPayment”) payable within thirty days after you execute and return this Agreement; provided that you will be required to immediately pay back\na pro-rata portion of such Bonus Payment in the event you voluntarily terminate your employment with the Company or your employment is\nterminated by the Company for Cause, as defined below, within one year after the date of this Agreement. The pro-ration shall be determined\nbased on the number of full months having elapsed from the date of this Agreement to your last date of employment, divided by twelve.\n(c) Subject to the approval of the Compensation Committee of the Board of Directors, a restricted stock grant of 10,000 shares of the\nCompany’s common stock (the “Restricted Stock Grant”). The Restricted Stock Grant shall vest 50% on the third anniversary of the grant date\nand 50% on the fourth anniversary of the grant date. The Restricted Stock Grant shall be subject to and governed by the terms and conditions\nof the Company’s 2008 Amended and Restated Equity Incentive Plan and shall be evidenced by a separate restricted stock agreement.\n2\n4. Termination Without Cause. Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b) the\nCompany does not consent to waive any of the post-employment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to\nCompany an irrevocable Separation Agreement and Release, within 60 days after your termination of employment (and any payment that constitutes\nnon-qualified deferred compensation under Section 409 A of the Internal Revenue Code of 1986, as amended and any regulations thereunder (the\n“Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at the expiration of such 60-day period), in\na form acceptable to the Company, the Company will pay you a severance payment equal to (i) a lump sum amount equal to the product of (x) the\nannual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in the fiscal year which\nincludes the date of your termination of employment had your employment not been terminated and (y) a fraction, the numerator of which is the\nnumber of days in the fiscal year that includes the date of your termination through the date of such termination and the denominator of which is\n365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15 day of the third month following the\nend of the year with respect to which such bonus was earned; (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable\ndeductions, according to the Company’s normal payroll practices for a period coextensive with the restricted period (twelve months); and (iii) during\nthe restricted period, reimbursement for out-of-pocket COBRA payments paid by you to continue your group health benefits, provided you submit\nrelevant supporting documentation to the Company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right\nto receive the foregoing payments (collectively, the “Salary Continuation Payments”) shall terminate effective immediately upon the date that you\nbecome employed by another entity as an employee, consultant or otherwise, and you agree to notify the Executive Vice-President of Human\nResources in writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources,\n(a) you will forfeit your right to receive the Salary Continuation Payments described above (to the extent the Salary Continuation Payments were not\ntheretofore paid) and (b) the Company shall be entitled to recover any Salary Continuation Payments already made to you or on your behalf.\nNotwithstanding the foregoing paragraph, in the event your employment is terminated by the Company without Cause, and you are a\n“specified employee” within the meaning of Section 409A of Code (as determined in accordance with the methodology established by the Company\nas in effect on the date of your termination), and the Salary Continuation Payments described above to be paid within the first six months following\nsuch date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then: (i) any\nportion of the Salary Continuation Payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the\ntimes set forth above; (ii) any portion of the Salary Continuation Payments that are a “short-term deferral” within the meaning of Treas. Regs.\nSection 1.409A-1(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation Payments that exceeds the Limit and\nare not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the Limit) shall be paid on the first business\nday after the six-month anniversary of the Termination Date or, if earlier, on the date of your death; and (iv) any portion of the Salary Continuation\nPayments that are payable after the Initial Payment Period shall be paid at the times set forth above. It is intended that each\n \n3\ninstallment, if any, of the payments and benefits, if any, provided to you under this Section 3 shall be treated as a separate “payment” for purposes of\nSection 409A of the Code.\nFor purposes of this agreement, “Cause” means (i) you have acted in bad faith and to the detriment of the Company; (ii) you have refused or\nfailed to act in accordance with any specific lawful direction or order of supervisory personnel; (iii) you have exhibited in regard to your\nemployment unfitness or unavailability for service, misconduct, dishonesty, habitual neglect, incompetence, or have committed an act of\nembezzlement, fraud or theft with respect to the property of the Company; (iv) you have abused alcohol or drugs on the job or in a manner which\naffects your job; (v) you have been found guilty of or have plead nolo contendere to the commission of a crime involving dishonesty, breach of trust,\nor physical or emotional harm to any person; (vi) you have breached any material term of this Agreement or of any Company policy; and/or\n(vii) your death or disability (such that you cannot perform the essential functions of the job, with or without accommodation). No payment will be\nrequired if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in paragraph 2(a)\nherein or if the conditions set forth in this paragraph are otherwise not met.\n5. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n“Cause,” as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the termination\ndate. In the event of termination for Cause or your resignation, the Company will not pay any severance, and the restrictions contained in paragraph\n2(a) above will remain in full force and effect unless waived by the Company.\n6. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company’s request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 4 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n7. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be cumulative with\nthose remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by you, the Company\nshall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief including, without\nlimitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as reimbursement from you\nfor any attorneys’ fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement of any legal or equitable\nremedy shall be construed as a waiver or prohibition against pursuing any\n4\nother legal or equitable remedies in the event of a threatened or actual breach of this agreement by you.\n8. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n9. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n10. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\n11. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this agreement)\nwould cause you to incur any additional tax or interest under Section 409 A of the Code, the Company and you shall reasonably cooperate to reform\nsuch provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without violating 409A of the Code,\nthe original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require the Company to provide you\nwith any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED:\nSignature: /s/ Trish Donnelly Print Name: Trish Donnelly\nTrish Donnelly\nDate: 11/16/2009\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nAeropostale\nAbercrombie & Fitch brands\nAmerican Eagle brands\nAnn Taylor\nCoach\nGap brands\nKate Spade\nLimited brands\nLiz Claiborne Brands\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nTory Burch\nUrban Outfitters brands\nAny retail apparel start-up operated by one of the above companies	EX-10.13 3 lex1013.htm NON-DISCLOSURE, NON-SOLICITATION & NON-COMPETITION AGREEMENT\nDATED 11/16/2009\nExhibit 10.13\nLOGO\nNON-DISCLOSURE,. NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your promotion to EVP Direct and continued employment with or provision of services to J. Crew Group, Inc. and its\naffiliates (collectively, the "Company") and for other good and valuable consideration described below, receipt of which is hereby acknowledged,\nyou agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company's merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall\nbe\ncollectively referred to as "Confidential Information." You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked "confidential."\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the "material") compiled\nby\nyou or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2.\nAgreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of\n770 Broadway New York NY 10003 Tel 212 209 2500 Fax 212 209 2666\nthe goodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the\nCompany's employ and for the period of twelve months after the termination of your employment, for any reason whatsoever, you shall not directly\nor indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company from time to time);\nor\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Annual Bonuses and Signing Bonus. As additional consideration for you entering into this Agreement and agreeing to the covenants\ncontained herein, the Company will provide you with the following:\n(a) You will continue to have the opportunity to earn an annual bonus(es) under the Company's bonus plan. Starting with FY 2010,\nprovided that both the Company achieves certain performance objectives (which will be determined by the Company in each fiscal year in\naccordance with the Company's bonus plan) and you achieve your performance goals, you will be eligible to receive an annual bonus with\na\ntarget of 50% of your base salary, up to a maximum bonus of 100% of your base salary. Such annual bonus(es) will be paid only if you are\nactively employed by the Company and not in breach of this Agreement on the date(s) of actual payment(s).\n(b) A one-time bonus payment of $50,000 (less all authorized or required payroll withholdings and payroll deductions) ("Bonus\nPayment") payable within thirty days after you execute and return this Agreement; provided that you will be required to immediately pay back\na\npro-rata\nportion\nof\nsuch\nBonus\nPayment\nin\nthe\nevent\nyou\nvoluntarily\nterminate\nyour\nemployment\nwith\nthe\nCompany\nor\nyour\nemployment\nis\nterminated by the Company for Cause, as defined below, within one year after the date of this Agreement. The pro-ration shall be determined\nbased on the number of full months having elapsed from the date of this Agreement to your last date of employment, divided by twelve.\n(c) Subject to the approval of the Compensation Committee of the Board of Directors, a restricted stock grant of 10,000 shares of the\nCompany's common stock (the "Restricted Stock Grant"). The Restricted Stock Grant shall vest 50% on the third anniversary of the grant date\nand\n50% on the fourth anniversary of the grant date. The Restricted Stock Grant shall be subject to and governed by the terms and conditions\nof the Company's 2008 Amended and Restated Equity Incentive Plan and shall be evidenced by a separate restricted stock agreement.\n2\n4. Termination Without Cause. Should your employment be (a) terminated by the Company without "Cause," as defined below; and (b) the\nCompany does not consent to waive any of the post-employment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to\nCompany an irrevocable Separation Agreement and Release, within 60 days after your termination of employment (and any payment that constitutes\nnon-qualified deferred compensation under Section 409 A of the Internal Revenue Code of 1986, as amended and any regulations thereunder (the\n"Code") that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at the expiration of such 60-day period),\nin\na form acceptable to the Company, the Company will pay you a severance payment equal to (i) a lump sum amount equal to the product of (x)\nthe\nannual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in the fiscal year which\nincludes the date of your termination of employment had your employment not been terminated and (y) a fraction, the numerator of which is the\nnumber of days in the fiscal year that includes the date of your termination through the date of such termination and the denominator of which is\n365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15th day of the third month following the\nend of the year with respect to which such bonus was earned; (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable\ndeductions, according to the Company's normal payroll practices for a period coextensive with the restricted period (twelve months); and (iii) during\nthe restricted period, reimbursement for out-of-pocket COBRA payments paid by you to continue your group health benefits, provided you submit\nrelevant supporting documentation to the Company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right\nto receive the foregoing payments (collectively, the "Salary. Continuation Payments") shall terminate effective immediately upon the date that you\nbecome employed by another entity as an employee, consultant or otherwise, and you agree to notify the Executive Vice-President of Human\nResources in writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources,\n(a) you will forfeit your right to receive the Salary Continuation Payments described above (to the extent the Salary Continuation Payments were not\ntheretofore paid) and (b) the Company shall be entitled to recover any Salary Continuation Payments already made to you or on your behalf.\nNotwithstanding the foregoing paragraph, in the event your employment is terminated by the Company without Cause, and you are a\n"specified employee" within the meaning of Section 409A of Code (as determined in accordance with the methodology established by the Company\nas\nin\neffect on the date of your termination), and the Salary Continuation Payments described above to be paid within the first six\nmonths\nfollowing\nsuch date (the "Initial Payment Period") exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the "Limit"), then: (i) any\nportion of the Salary Continuation Payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the\ntimes set forth above; (ii) any portion of the Salary Continuation Payments that are a "short-term deferral" within the meaning of Treas. Regs.\nSection 1.409A-1(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation Payments that exceeds the Limit and\nare not a "short-term deferral" (and would have been payable during the Initial Payment Period but for the Limit) shall be paid on the first business\nday after the six-month anniversary of the Termination Date or, if earlier, on the date of your death; and (iv) any portion of the Salary Continuation\nPayments that are payable after the Initial Payment Period shall be paid at the times set forth above. It is intended that each\n3\ninstallment, if any, of the payments and benefits, if any, provided to you under this Section 3 shall be treated as a separate "payment" for purposes of\nSection 409A of the Code.\nFor purposes of this agreement, "Cause" means (i) you have acted in bad faith and to the detriment of the Company; (ii) you have refused or\nfailed to act in accordance with any specific lawful direction or order of supervisory personnel; (iii) you have exhibited in regard to your\nemployment unfitness or unavailability for service, misconduct, dishonesty, habitual neglect, incompetence, or have committed an act of\nembezzlement, fraud or theft with respect to the property of the Company; (iv) you have abused alcohol or drugs on the job or in a manner which\naffects your job; (v) you have been found guilty of or have plead nolo contendere to the commission of a crime involving dishonesty, breach of trust,\nor physical or emotional harm to any person; (vi) you have breached any material term of this Agreement or of any Company policy; and/or\n(vii) your death or disability (such that you cannot perform the essential functions of the job, with or without accommodation). No payment will be\nrequired if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in paragraph 2(a)\nherein or if the conditions set forth in this paragraph are otherwise not met.\n5. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n"Cause," as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the termination\ndate. In the event of termination for Cause or your resignation, the Company will not pay any severance, and the restrictions contained in paragraph\n2(a) above will remain in full force and effect unless waived by the Company.\n6. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company's request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 4 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n7. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in\nthis\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be cumulative with\nthose remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by you, the Company\nshall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief including, without\nlimitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as reimbursement from you\nfor any attorneys' fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement of any legal or equitable\nremedy shall be construed as a waiver or prohibition against pursuing any\n4\nother legal or equitable remedies in the event of a threatened or actual breach of this agreement by you.\n8.\nSeverability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n9. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n10. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\n11. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this agreement)\nwould cause you to incur any additional tax or interest under Section 409 A of the Code, the Company and you shall reasonably cooperate to reform\nsuch provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without violating 409A of the Code,\nthe original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require the Company to provide you\nwith any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED:\nSignature: /s/ Trish Donnelly\nPrint Name: Trish Donnelly\nTrish Donnelly\nDate:\n11/16/2009\n5\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nAeropostale\nAbercrombie & Fitch brands\nAmerican Eagle brands\nAnn Taylor\nCoach\nGap brands\nKate Spade\nLimited brands\nLiz Claiborne Brands\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nTory Burch\nUrban Outfitters brands\nAny retail apparel start-up operated by one of the above companies\n6	EX-10.13 3 dex1013.htm NON-DISCLOSURE, NON-SOLICITATION & NON-COMPETITION AGREEMENT\nDATED 11/16/2009\nExhibit 10.13\nLOGO\nNON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your promotion to EVP – Direct and continued employment with or provision of services to J. Crew Group, Inc. and its\naffiliates (collectively, the “Company”) and for other good and valuable consideration described below, receipt of which is hereby acknowledged,\nyou agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as “Confidential Information.” You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked “confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”) compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of\n770 Broadway New York NY 10003 Tel 212 209 2500 Fax 212 209 2666\nthe goodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the\nCompany’s employ and for the period of twelve months after the termination of your employment, for any reason whatsoever, you shall not directly\nor indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company from time to time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Annual Bonuses and Signing Bonus. As additional consideration for you entering into this Agreement and agreeing to the covenants\ncontained herein, the Company will provide you with the following:\n(a) You will continue to have the opportunity to earn an annual bonus(es) under the Company’s bonus plan. Starting with FY 2010,\nprovided that both the Company achieves certain performance objectives (which will be determined by the Company in each fiscal year in\naccordance with the Company’s bonus plan) and you achieve your performance goals, you will be eligible to receive an annual bonus with a\ntarget of 50% of your base salary, up to a maximum bonus of 100% of your base salary. Such annual bonus(es) will be paid only if you are\nactively employed by the Company and not in breach of this Agreement on the date(s) of actual payment(s).\n(b) A one-time bonus payment of $50,000 (less all authorized or required payroll withholdings and payroll deductions) (“Bonus\nPayment”) payable within thirty days after you execute and return this Agreement; provided that you will be required to immediately pay back\na pro-rata portion of such Bonus Payment in the event you voluntarily terminate your employment with the Company or your employment is\nterminated by the Company for Cause, as defined below, within one year after the date of this Agreement. The pro-ration shall be determined\nbased on the number of full months having elapsed from the date of this Agreement to your last date of employment, divided by twelve.\n(c) Subject to the approval of the Compensation Committee of the Board of Directors, a restricted stock grant of 10,000 shares of the\nCompany’s common stock (the “Restricted Stock Grant”). The Restricted Stock Grant shall vest 50% on the third anniversary of the grant date\nand 50% on the fourth anniversary of the grant date. The Restricted Stock Grant shall be subject to and governed by the terms and conditions\nof the Company’s 2008 Amended and Restated Equity Incentive Plan and shall be evidenced by a separate restricted stock agreement.\n2\n4. Termination Without Cause. Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b) the\nCompany does not consent to waive any of the post-employment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to\nCompany an irrevocable Separation Agreement and Release, within 60 days after your termination of employment (and any payment that constitutes\nnon-qualified deferred compensation under Section 409 A of the Internal Revenue Code of 1986, as amended and any regulations thereunder (the\n“Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at the expiration of such 60-day period), in\na form acceptable to the Company, the Company will pay you a severance payment equal to (i) a lump sum amount equal to the product of (x) the\nannual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in the fiscal year which\nincludes the date of your termination of employment had your employment not been terminated and (y) a fraction, the numerator of which is the\nnumber of days in the fiscal year that includes the date of your termination through the date of such termination and the denominator of which is\n365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15 day of the third month following the\nend of the year with respect to which such bonus was earned; (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable\ndeductions, according to the Company’s normal payroll practices for a period coextensive with the restricted period (twelve months); and (iii) during\nthe restricted period, reimbursement for out-of-pocket COBRA payments paid by you to continue your group health benefits, provided you submit\nrelevant supporting documentation to the Company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right\nto receive the foregoing payments (collectively, the “Salary Continuation Payments”) shall terminate effective immediately upon the date that you\nbecome employed by another entity as an employee, consultant or otherwise, and you agree to notify the Executive Vice-President of Human\nResources in writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources,\n(a) you will forfeit your right to receive the Salary Continuation Payments described above (to the extent the Salary Continuation Payments were not\ntheretofore paid) and (b) the Company shall be entitled to recover any Salary Continuation Payments already made to you or on your behalf.\nNotwithstanding the foregoing paragraph, in the event your employment is terminated by the Company without Cause, and you are a\n“specified employee” within the meaning of Section 409A of Code (as determined in accordance with the methodology established by the Company\nas in effect on the date of your termination), and the Salary Continuation Payments described above to be paid within the first six months following\nsuch date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A -l(b)(9)(iii)(A) (the “Limit”), then: (i) any\nportion of the Salary Continuation Payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the\ntimes set forth above; (ii) any portion of the Salary Continuation Payments that are a “short-term deferral” within the meaning of Treas. Regs.\nSection 1.409A-l(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation Payments that exceeds the Limit and\nare not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the Limit) shall be paid on the first business\nday after the six-month anniversary of the Termination Date or, if earlier, on the date of your death; and (iv) any portion of the Salary Continuation\nPayments that are payable after the Initial Payment Period shall be paid at the times set forth above. It is intended that each\n3\nth\ninstallment, if any, of the payments and benefits, if any, provided to you under this Section 3 shall be treated as a separate “payment” for purposes of\nSection 409A of the Code.\nFor purposes of this agreement, “Cause” means (i) you have acted in bad faith and to the detriment of the Company; (ii) you have refused or\nfailed to act in accordance with any specific lawful direction or order of supervisory personnel; (iii) you have exhibited in regard to your\nemployment unfitness or unavailability for service, misconduct, dishonesty, habitual neglect, incompetence, or have committed an act of\nembezzlement, fraud or theft with respect to the property of the Company; (iv) you have abused alcohol or drugs on the job or in a manner which\naffects your job; (v) you have been found guilty of or have plead nolo contendere to the commission of a crime involving dishonesty, breach of trust,\nor physical or emotional harm to any person; (vi) you have breached any material term of this Agreement or of any Company policy; and/or\n(vii) your death or disability (such that you cannot perform the essential functions of the job, with or without accommodation). No payment will be\nrequired if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in paragraph 2(a)\nherein or if the conditions set forth in this paragraph are otherwise not met.\n5. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n“Cause,” as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the termination\ndate. In the event of termination for Cause or your resignation, the Company will not pay any severance, and the restrictions contained in paragraph\n2(a) above will remain in full force and effect unless waived by the Company.\n6. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company’s request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 4 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n7. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be cumulative with\nthose remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by you, the Company\nshall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief including, without\nlimitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as reimbursement from you\nfor any attorneys’ fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement of any legal or equitable\nremedy shall be construed as a waiver or prohibition against pursuing any\n4\nother legal or equitable remedies in the event of a threatened or actual breach of this agreement by you.\n8. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n9. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n10. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\n11. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this agreement)\nwould cause you to incur any additional tax or interest under Section 409 A of the Code, the Company and you shall reasonably cooperate to reform\nsuch provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without violating 409A of the Code,\nthe original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require the Company to provide you\nwith any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED:\nSignature: /s/ Trish Donnelly\nPrint Name: Trish Donnelly\nTrish Donnelly\nDate:\n11/16/2009\n5\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON -COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nAeropostale\nAbercrombie & Fitch brands\nAmerican Eagle brands\nAnn Taylor\nCoach\nGap brands\nKate Spade\nLimited brands\nLiz Claiborne Brands\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nTory Burch\nUrban Outfitters brands\nAny retail apparel start-up operated by one of the above companies\n6
4dc5c39e601cd476f4c2def0e6b96915.pdf	effective_date jurisdiction party term	EX-10 .10 13 EXHIBIT 10.10 EMPLOYMENT, ROYALTY AND NON-DISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement") is made as of the 15th\nday of May, 1996, by and between ENVIROMETRICS PRODUCTS COMPANY, a corporation organized under the laws of the State of South Carolina and\nincluding its agents, representatives, divisions, subdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities and\nsuccessors in interest (hereafter "the Company"), and TOM WILKIE, an individual resident of the State of North Carolina ("Employee"). WITNESSETH:\nWHEREAS, the Company is engaged in the Business of the Company and, in the course of such activity, has acquired or developed certain Trade Secrets,\nConfidential Information, Intellectual Property and Proprietary Information (as such terms are hereinafter defined) not generally known in the Company's industry\nor otherwise; WHEREAS, the Company understands that the Employee has brought to the Company and provided the Company with certain proprietary\ntechnology allowing the Company advantages in the marketplace it would not otherwise enjoy; and WHEREAS, such Trade Secrets, Confidential Information,\nIntellectual Property and Proprietary Information provide the Company with a competitive advantage in the marketplace; WHEREAS, Employee has been, and\nafter and by virtue of the execution of this Agreement will continue to be, employed by the Company in a position involving the trust and confidence of the\nCompany; and WHEREAS, in the course of his employment with the Company, or through his use of the Company's facilities or resources, Employee has had\nand will have access to, and has developed and may develop or contribute to the development of, Trade Secrets, Confidential Information, Intellectual Property\nand Proprietary Information, all solely in connection with his activities as an employee of the Company; and WHEREAS, Employee understands and agrees that\nsubstantial benefits and consideration will inure to him under this Agreement that he would not otherwise enjoy were he not to execute the same. NOW\nTHEREFORE, in consideration of and as an express condition to the continuance of employment of Employee by the Company, the mutual agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree\nas follows: 1. DEFINITIONS . (a) "Bonus" has the meaning ascribed to it in Section 4 hereof. (b) "Business of the Company" means and includes the business and\ncommercial activities of the Company, as such business is conducted while this Agreement is in effect, including, without limitation, designing, developing, testing,\nmanufacturing, advertising, distributing and selling industrial hygiene and environmental air monitoring and related products. (c)"Cause" means (i) fraud,\ndishonesty, demonstrated incompetence in the performance of professional duties; (ii) excessive unexcused absences from work; (iii) engaging in activities\nprohibited by the policies of the Company as communicated in writing to Employee or expressly prohibited by the terms of this Agreement; or injury, accident,\nillness or other incapacity which wholly, or continuously and materially, disables Employee from performing his duties hereunder for a period of ninety (90) days\nand thereafter for ten (10) days after the Company shall have given Employee written notice of the Company's intention to terminate this Agreement and its\nemployment relationship with Employee because of such disability. The Company will at all times during his employment with the company and at no cost to the\nEmployee provide the Employee with disability insurance sufficient to provide Employee with a minimum of sixty (60) percent of his earnings until recovery or age\nsixty-five (65) and will furnish Employee with a current copy of such policy and immediately notify Employee of any changes or amendments made to such policy.\n(d) "Colorimetric Device" means any device that indicates through corresponding changes in its reflectance or absorbance of light, the presence and/or level of\nexposure to an indicated chemical(s) or substance. (e) "Company" means ENVIROMETRICS PRODUCTS COMPANY, its agents, representatives, divisions,\nsubdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities and successors in interest. (f) "Competing Business"\nmeans any person or entity in the same business or substantially the same business as the Business of Company. (g) "Competing Product" means any good that\nperforms substantially the same function(s) as any of the Products. (h) "Confidential Information" means any and all data and information relating to the Business\nof the Company (whether constituting a Trade Secret or not) which is or has been developed by or disclosed to Employee or of which Employee became aware\nas a consequence of or through his relationship with the Company and which has value to the Company and is not generally known by its competitors. (i)\n"Copyrights" means all original "works of authorship", "compilations", and/or "derivation" including, without limitation, literary, artistic, pictorial, graphic and other\nintellectual works owned or claimed by Company which are registered with the United States Copyright Office or the copyright office of any other jurisdiction, or\nare eligible to be so registered, or are entitled to protection by and under the copyright laws and treaties of the United States or under the equivalent laws of any\nother jurisdiction. (j) "Gross Sales" means the total, without geographical limitations, of all sales of the Products by Company at invoice prices reduced by\ndiscounts, rebates, and return of products defined herein. (k) "Intellectual Property" means the Copyrights, Marks and Patents, collectively or in combination, as\nthe context suggests. (l) "Marks" Means all trade names, word marks, trademarks, service marks and logos or designs (including any trade dress that is\nsusceptible to protection under the laws of the United States or any other political subdivision in the world), whether or not registered with the United States\nPatent and Trademark Office or trademark office or registry of any jurisdiction in the world, placed upon or used in connection with the Business of the Company\nor the sale, distribution, promotion and marketing of the Products or of any other goods or services provided or distributed by Company from time to time, and\nincludes, without limitation, "ACT and design" , "Air-Chem Technologies" and "The ACT Monitoring Card System". (m) "Patents" Means all inventions or letters\npatent owned or licensed by or on behalf of the Company, and which are registered with the United States Patent and Trademark Office or the patent office or\nregistry in any jurisdiction in the world or are eligible for registration and/or other protection under the laws and treaties of the United States or of any such\njurisdiction (n) "Products" means any chemical based colorimetric device(s) developed by the Company and/or produced by the Company or licensee(s) or other\nagent(s) of the Company to perform the function of quantitatively or qualitatively measuring and/or indicating chemicals present in the atmosphere. (o)\n"Proprietary Information" Means all of the following materials and information, whether or not patentable or protected by a copyright, trademark, or service mark,\nto which Employee receives or has received access or which Employee develops or has developed as a result of his employment with the Company or during the\nterm of his employment with the Company or through the use of any of the Company's facilities or resources, or those of its affiliates or of its agents or\ndistributors: (i) Production processes, purchasing information, price lists, performance and scheduling information and data, and other materials or information\nrelating to the Business of the Company; (ii) Discoveries, concepts and ideas, and the embodiment(s) thereof, whether or not actually constituting Intellectual\nProperty hereunder, and the nature and results of research and development activities and "know-how" acquired while in the employ of the Company; (iii) Any\nother materials or information related to the Business of the Company which are not generally known to others engaged in similar business or activities; (iv) All\ninventions and ideas which are derived from or related to Employees's access to knowledge of any of the above enumerated materials and information while in\nthe employ of the Company; and (v) Any trade secrets, confidential information or proprietary information which the Company has acquired or may in the future\nacquire from any third party during employee's service to the company, including, without limitation, operating principles, documentation, drawings, programs and\nperformance specifications and results provided to the Company by such third parties pursuant to agreements, understandings and/or acknowledgments to the\neffect that such trade secrets and confidential or proprietary information provided to the Company by such third parties (collectively "Third Party Confidential\nInformation") is the proprietary and/or confidential information of such respective third part and is to be treated by the Company as if such Third Party Confidential\nInformation were the Company's Confidential Information. (p) "Royalty" means two and one-half percent of Gross Sales of the Products described herein. (q)\n"Salary" has the meaning ascribed to it in Section 4 hereof. (r) "Term" means the Initial Term and any Renewal Term, as such terms are defined below. (s) "Trade\nSecrets" means the whole or any portion or phase of any data or information developed, owned or licensed from a third party by the Company to which Employee\nhas gained access as a result of his employment with the Company, including any formula, pattern, compilation, program, device, method technique,\nimprovement, or process that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable\nby a proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) Is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Trade Secrets shall not include any data or information (i) that has been voluntarily disclosed to the public by the Company\nor has become generally known to the public (except when such public disclosure has been made by or through Employee, or by a third person or entity with the\nknowledge of Employee, without authorization from the Company); (ii) that has been independently developed and disclosed to parties other than the Company,\nand the public generally or to Employee with a breach of obligation of confidentiality by any such parties running directly or indirectly to the Company; or (iii) that\notherwise enters the public domain through lawful means. 2. TERMS OF ENGAGEMENT; DUTIES. (a) Capacity. The Company hereby employs Employee as\nResearch Chemist and Employee accepts such employment in such capacity by the Company subject to the terms and conditions hereof. (b) Duties. Employee\nrecognizes and agrees that he shall: (i) devote all of his time, energy and skill during regular business hours to faithfully and industriously develop colormetric\ntechnology and products and other technology and products as directed by the Company exclusively for the use and benefit of the Company (vacation time and\nreasonable sick leave excepted); (ii) diligently follow and implement all policies and decisions communicated to him by the Company, to the best of his ability with\nthe resources provided by the Company, including without limitation, those concerning the production, sale of or further research and development concerning,\nthe Products; and (iii) faithfully and to the best of his ability perform the duties and obligations set forth in this Agreement. 3. TERM; TERMINATION. (a) Initial\nterm. The term of the employment of Employee by the Company hereunder shall commence on the date hereof and shall end on December 31, 2000 (the "Initial\nTerm"). (b) Renewal Terms(s). At the expiration of the Initial Term, this Agreement shall be automatically renewed for separate and successive two (2) year terms\n(individually, a "Renewal Term" and, collectively, "Renewal Terms"); provided, however, the parties may agree in writing to modify the compensation to be paid\npursuant to Section 4 hereof during any such Renewal Term, but shall not be bound to do so; provided, further, this Agreement shall not be automatically\nrenewed if either party shall give to the other party written notice of his or its intent not to renew this Agreement no fewer than thirty (30) days prior to the\nexpiration of the Initial Term or any Renewal Term, as applicable. (c) Voluntary Termination by Employee. Employee may terminate this Agreement at any time\nduring the Term upon no fewer than sixty (60), but no more than ninety (90) days prior written notice to the Company, in which event this Agreement and all of the\nCompany's obligations hereunder shall terminate as of the date contained in such notice except that the Royalty shall be payable as provided as in Section (f)\nhereof. Notwithstanding the foregoing, in the event Employee shall terminate this Agreement as a result of a major illness or disability which prevents him from\nperforming his services hereunder, Employee shall thereafter be entitled to receive Salary (as defined below)for a period of ninety (90) days following the date of\nthe occurrence of such injury or disability, and all of the other terms of this Agreement, including all Benefits payable by the Company on behalf of the Employee,\nshall continue until the end of the Annual Term in which such termination occurs, and all Royalty shall be payable as provided in Section (f) hereof and Section\n4(c). (d) Termination by the Company for cause. This Agreement may be terminated by the Company for Cause at any time during the Term, upon ten (10) days\nprior written notice to Employee, in which event this Agreement and all of the Company's obligations hereunder shall terminate as of the notice date, except that\nthe Royalty shall be payable as provided in Section (f) hereof and Section 4(c). (e) Termination by the Company other Than for Cause. In the event the Company\nterminates this Agreement during the Term for reasons other than for Cause, then, in addition to any other remedy available at law or equity, Employee shall be\nentitled to continue to receive his Salary, plus all Benefits to be paid by the Company on behalf of Employee for a period equal to one month for every full year of\nservice, but not to exceed six months, after such termination occurs, plus the Royalty as provided in Section (f) hereof and Section 4(c). (f) Survival of Royalty\nPayments. The Royalty as defined in Section 4(c) of this Agreement shall continue to be paid to Employee notwithstanding termination for any reason of this\nAgreement until the first occurrence of one of the following events: (i) Employee dies, in which event any Royalty accrued and payable on the date of death shall\nbe paid to Employee's estate, and the Royalty shall not thereafter be payable to any other person or entity; (ii) Employee develops Competing Products for any\nCompeting Business, or any employer, person, or entity other than the Company or its affiliates, in which event the Royalty shall cease being paid to Employee or\nany other person or entity; or (iii) Employee becomes employed by or affiliated with a Competing Business as, without limitation, an employee, officer, director,\nagent, consultant, or advisor, in which capacity Employee develops, or assists the Competing Business or its affiliates, employees, officers, directors, agents,\nconsultants, or advisors in the development of, Competing Products, in which event the Royalty shall cease being paid to Employee or any other person or entity.\n(g) Return of Embodiments of Proprietary Information Upon Termination. All notes, data, reference materials, sketches, drawings, memoranda and records in any\nway relating to any of the Proprietary Information or the Business of the Company and any other physical embodiment of the Proprietary Information shall belong\nexclusively to the Company, and Employee agrees to turn over to the Company the originals and all copies of such materials developed or generated by the\nEmployee or coming into his possession during the term of or as a result of his employment by the Company at the request of the Company or, in the absence of\nsuch a request, upon termination (for whatever reason) of Employees employment with the Company. (h) Survival of Covenants. The Covenants of Employee set\nforth in Section 5 hereof shall survive the termination of this Agreement for any reason whatsoever and shall not be extinguished thereby so long as the Royalty is\npaid in accordance with Section 4(c) and Section 3(f). 4 . COMPENSATION . (a) Salary. During the Term, the Company shall pay Employee an annual salary of\nSixty Thousand and No/100 Dollars ($60,000.00) (the "Salary"), which Salary shall be payable in the manner and at the times which the Company regularly\ncompensates its employees, less applicable state and federal taxes. In addition, but subject to conditions of termination set forth above, the Company shall pay\nEmployee the Bonus and Royalty, as defined herein. If the Bonus outlined in 4(b), when added to the base salary at the end of each year does not equal the cost\nof living based on the U.S . Dept Of Labor cost of living index, the Company shall make an adjustment to the base salary for the following year equal to the cost of\nliving index. (b) Bonus. The Company shall pay Employee a bonus equal to Five Thousand and No/100 Dollars ($5000.00) plus grant a ten-year option to\npurchase Five Thousand (5000) shares of the Company's (EVRM) Common Stock. Such options will be granted at the then market price of the Stock and shall be\nfully vested at issuance. This bonus will be awarded for each additional chemical for which monitoring device(s) is developed by Employee (the "Bonus");\nprovided, however, the chemical must be approved by the Marketing Department of the Company. The monitoring device(s) indicating such chemical will be\nconsidered "developed" for purposes hereof upon the completion of the standard validation protocol and an algorithm defining the devices'(s') performance has\nbeen developed and/or an acceptable color match(s) has been identified in the case of qualitative device(s). Bonus shall be paid to Employee within thirty (30)\ndays after monitoring device has been "developed". (c) Royalty. By the thirtieth (30th) day after the last day of each calendar year quarter (each a "Royalty\nQuarter"), the Company shall pay to Employee a Royalty (The "Royalty") equal to Two and One-Half Percent (2.5%) of Gross Sales of the Products as defined\nherein for the immediate preceding calendar quarter. A written statement of the value and quantity of each colorimetric device sold during the "Royalty Quarter"\nshall be given to Employee with each quarterly payment. In the event that such a written statement is not provided employee shall have the right to examine any\nof Company's State Sales Tax Reports for sale of Products as defined herein. Employee shall also have the right to examine all books of account recording Gross\nSales as defined herein. The parties expressly agree that the payment of the Royalty as described in this Agreement shall survive any termination of this\nAgreement except as provided in Section 3(f) of this agreement. In the event of bankruptcy either voluntary or involuntary, or the non-payment of Royalty\npayments to the Employee by the Company as specified in this Agreement and not cured in ten (10) days after written notification of delinquency by the\nEmployee, all obligations of Employee under this agreement or which could or might be imposed by statutory or common law shall be extinguished. In the event\nthat the technology required to produce the Product is transferred through sale or any other means to any other entity, the Royalty as defined herein shall be paid\nby such entity. (d) Payment on Death. In the event Employee dies during the Term of Agreement, and so long as this Agreement was not the subject of a notice\nof terminating as provided in Section 3 hereof, the Company shall pay to his estate any Salary, Royalty or Bonus that would have been payable up until the end of\nthe month in which Employee dies. (e) Benefits. Employee shall be entitled to participate in any retirement, profit sharing, hospital, medical, disability and life\ninsurance programs regularly maintained by the Company for its employees. (f) Expense Reimbursement. The Company will reimburse Employee for all ordinary,\nreasonable necessary expense incurred by him in carrying out his duties under this Agreement upon Employee's presentation to the Company from time to time\nof an itemized account of the receipts for such expenses in such form as may be required by the Company; provided, however, such reimbursement shall be\nconditioned upon deductibility by the Company of such expenses from gross income for federal tax purposes. (g) Product Liability. The Employee is in no way\nresponsible for any product liability. The Company accepts full and complete responsibility for the Product and any claims made by the Company regarding the\nProduct or its capabilities or performance, and the Company will maintain at all times product liability insurance specifically protecting the employee against any\nlegal claims made against him in his capacity as developer of the Product. The Company will furnish the Employee with evidence of such insurance and notify\nemployee immediately of any cancellation, modification or amendment thereto. 5. COVENANTS OF EMPLOYEE . (a) Ownership of Trade Secrets, Confidential\nInformation, Proprietary Information and Intellectual Property. Employee agrees that the Trade Secrets, Confidential Information, Proprietary Information,\nIntellectual Property, and all physical embodiments thereof (collectively the "Information") to which the employee has come into possession of as a result of or\nduring the term of his employment by the Company; are, and shall at all times remain, the sole and exclusive property of the Company, and that any of the\nInformation produced or developed by him as an employee of the Company shall be considered work for hire under United States law. Employee agrees to (a)\nimmediately disclose or transfer to the Company all Information developed in whole or part by him during the Term, (b) assign to the Company any right, title or\ninterest he may have in such Information, and (c) at the request and expense of the Company, to do all things and sign all documents or instruments reasonably\nnecessary to eliminate any ambiguity as to the ownership of the Company of such Information including, without limitation, providing to the Company his full\ncooperation in any litigation or other proceedings to establish, protect or obtain such rights while he is in the employee of the Company. (b) Non-Disclosure or Use\nof Trade Secrets or Confidential Information. During the term of his employment with the Company and at any and all times following the termination of such\nemployment, Employee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Trade Secret or Confidential Information of which\nhe came into possession as a result of his employment by the Company for any purpose including, without limitation, the solicitation of existing company\ncustomers of which the Employee is aware, except in the course of performing duties assigned to him by the Company. (c) Non-Disclosure or Use of Proprietary\nInformation. During the term of his employment with the Company and for a period of one (1) year after termination (for whatever reason) of such employment,\nEmployee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Proprietary Information for any purpose. (d) No Solicitation.\nEmployee covenants and agrees that, while he is employed by the Company and for a period of two (2) years following termination (for any reason) of such\nemployment, he will not, directly or indirectly, solicit, induce or hire away, or assist any third person or entity in inducing, diverting, soliciting or hiring away, (i) any\nemployee of the Company, whether such employee is employed pursuant to a written contract, is for a determined period or is at will, or (ii) any person or entity\nwhich, at the time of termination of employment, was a client or customer of the Company or with whom or which, at the time of termination of employment, the\nCompany was negotiating regarding the sale or distribution of the Company's services or products. (e) Return of Company Property. Employee covenants and\nagrees that, upon termination (for any reason) of this Agreement, he will return or turn over to the Company all physical embodiments of the Information including\nwithout limitation, all notes, data reference materials sketches, drawings, memoranda, records, laboratory equipment, chemicals, tools, implements, computers,\ndrives, diskettes, tapes, renditions, models, mock-ups, prototypes, evaluations, measurements, and tests, and all originals copies or other physical embodiments\nthereof, which in any way relate to any of the Information or to the Business of the Company which belong to the Company or were developed or generated while\nin the employment of the Company. (f) Additional Provisions. Employee recognizes and agrees: (i) that the covenants and agreements contained in Section 5 of\nthis Agreement are of the essence of this Agreement; (ii) that each of such covenants is reasonable and necessary to protect and preserve the interests and\nproperties of the Company and the Business of the Company; (iii) that loss and damage may be suffered by the Company should Employee breach any of such\ncovenants or agreements; (iv) that each of such covenants and agreements is separate, distinct and severable from the other and remaining provisions of this\nAgreement. 6. MISCELLANEOUS PROVISIONS . (a) Binding Effect. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto\nand their respective heirs, successors , assigns and legal representatives. (b) Severability. The provisions of this Agreement shall be deemed severable and the\ninvalidity or the unenforceability of any one or more of the provisions hereof shall not affect the validity or enforceability of the other provisions hereof. (d) Notices.\nAll notices and other communications which are required or permitted hereunder shall be in writing and shall be sufficient if delivered by hand or mailed by\ncertified mail return receipt requested, postage prepaid, to the addresses set forth below or to such other address as the parties shall specify by notice in writing\nto the other party. All such notices and communications made by mail shall be deemed to have been received on the date of actual delivery or on the fifth (5th)\nbusiness day after the mailing thereof, whichever is earlier: Company: Envirometrics Products Company 1019 Bankton Dr. Charleston, SC 29406 Employee:\nThomas A. Wilkie 1370 Lamont Norwood Rd. Pittsboro, North Carolina 27312 (e) Entire Agreement. This Agreement contains the entire agreement between the\nparties hereto and supersedes and terminates any and all prior written agreements and understandings between the parties hereto with respect to the\nemployment of, or work performed in the capacity of an independent contractor by the Employee or payments to Employee by the Company for any reason or\nwork product, including, without limitation, the Employee Invention Assignment Agreement and the Employee Non-Disclosure and Non-Competition Agreement,\nboth Agreements executed on or about March 13, 1992 , and any subsequent amendments, modifications and understandings related thereto. (f) Amendments\nand Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement\nof any such modification or amendment is sought, Either party hereto may by an instrument in writing waive compliance by the other party of any other provision\nof this Agreement on the part of such other party. The waiver by any party of a breach of any term or provision shall not be construed as a waiver of any\nsubsequent breach. (g) Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not be deemed to control\nor affect the meaning or construction of any provision. The Company is a corporation in good standing under the laws of South Carolina and is duly authorized to\ncarry on the business presently conducted by it and its signers of this Agreement are properly authorized to execute, deliver and perform this Agreement on\nbehalf of the Company and that this Agreement constitutes a valid and legally binding obligation of the Company. IN WITNESS WHEREOF, the parties hereto\nhave executed this Agreement to be effective as of the date and year first written above. ATTEST The Company: Envirometrics Products Company\n__________________________\n__________________________________________\nSecretary By: Walter H. Elliott, III , President [CORPORATE SEAL]\nEMPLOYEE: __________________________________________ Thomas A. Wilkie	EX-10.10 13 EXHIBIT 10.10 EMPLOYMENT, ROYALTY AND NON-DISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement") is made as ofIhe 15Ih\nday of May, 1996, by and between ENVIROMETRICS PRODUCTS COMPANY, a corporation organized underthe laws of the State of South Carolina and\nincluding is agens, representatives, divisions, subdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities and\nsuccessors in interest (hereafter "the Company"), and TOM WILKIE, an individual residentofthe State of North Carolina ("E mployee"). WITN ESSETH:\nWHE REAS, the Company is engaged in the Business of Ihe Company and, in Ihe course ofsuch activity, has acquired or developed certain Trade Secrets,\nConfidential Information, Intellectual Property and Proprietary Information (as such terms are hereinafter defined) not generally known in the Company's industry\nor oIhenNise; WHE REAS, Ihe Company understands that Ihe Employee has broughtto the Company and provided Ihe Company with certain proprietary\ntechnology allowing the Company advantages in the marketplace it would not otherwise enjoy; and WHE REAS, such Trade Secrets, Confidential Information,\nIntellectual Property and Proprietary Information provide the Company with a competitive advantage in the marketplace; WHE REAS, Employee has been, and\nafter and by virtue of the execution of Ihis Agreementwill continue to be, employed by the Company in a position involving the trust and confidence of the\nCompany; and WHE REAS, in the course of his employmentwith the Company, or through his use ofthe Company's facilities or resources, Employee has had\nand will have access to, and has developed and may develop or contribute to the development of, Trade Secrets, Confidential Information, Intellectual Property\nand Proprietary Information, all solely in connection wiIh his activities as an employee of the Company; and WHEREAS, Employee understands and agrees that\nsubstantial benefis and consideration will inure to him under this Agreement Ihat he would notoIherwise enjoy were he notto execute the same. NOW\nTHE RE FORE, in consideration of and as an express condition to Ihe continuance of employment of Employee by Ihe Company, the mutual agreements\ncontained herein and olher good and valuable consideration, the receipt and sufficiency ofwhich are hereby acknowledged, the parties hereto do hereby agree\nas follows: 1. DEFINITIONS. (a) "Bonus" has Ihe meaning ascribed to itin Section 4 hereof. (b) "Business of the Company" means and includes Ihe business and\ncommercial activities of the Company, as such business is conducted while this Agreement is in effect, including, without limitation, designing, developing, testing,\nmanufacturing, advertising, distributing and selling industrial hygiene and environmental air monitoring and related producs. (c)"Cause" means (i) fraud,\ndishonesty, demonstrated incompetence in the performance of professional duties; (ii) excessive unexcused absences from work; (iii) engaging in activities\nprohibited by the policies ofthe Company as communicated in writing to Employee or expressly prohibited by the terms ofthis Agreement; or injury, accident,\nillness or other incapacity which wholly, or continuously and materially, disables Employee from performing his duties hereunder for a period of ninety (90) days\nand Ihereafter for ten (10) days after the Company shall have given Employee written notice ofthe Company's intention to terminate Ihis Agreement and is\nemployment relationship wiIh Employee because of such disability. The Company will at all times during his employmentwith Ihe company and at no costto the\nEmployee provide Ihe Employee wiIh disability insurance sufficientto provide Employee with a minimum ofsixty (60) percent of his earnings until recovery or age\nsixty-five (65) and will furnish Employee wiIh a currentcopy ofsuch policy and immediately notify Employee of any changes or amendmens made to such policy.\n(d) "Colorimetric Device" means any device that indicates Ihrough corresponding changes in is reflectance or absorbance of light, the presence and/or level of\nexposure to an indicated chemical(s) or substance. (e) "Company" means ENVIROMETRICS PRODUCTS COMPANY, is agens, representatives, divisions,\nsubdivisions, subsidiaries, wholly or parij owned, parentcorporations, affiliates, assignees, related entities and successors in interest. (fi "Competing Business"\nmeans any person or entity in the same business or substantially Ihe same business as Ihe Business ofCompany. (g) "Competing Product" means any good that\nperforms substantially the same function(s) as any ofIhe Producs. (h) "Confidential Information" means any and all data and information relating to the Business\nof Ihe Company (wheIher constituting a Trade Secretor not) which is or has been developed by or disclosed to Employee or of which Employee became aware\nas a consequence of or through his relationship wiIh the Company and which has value to the Company and is notgenerally known by is competitors. (i)\n"Copyrighs" means all original "works of athorship", "compilations", and/or "derivation" including, without limitation, literary, artistic, pictorial, graphic and other\nintellectual works owned or claimed by Company which are registered wiIh the United States CopyrightOffice or the copyrightoffice of any otherjurisdiction, or\nare eligible to be so registered, or are entitled to protection by and under the copyright laws and treaties of Ihe United States or under the equivalent laws of any\notherjurisdiction. (j) "Gross Sales" means Ihe total, wiIhout geographical limitations, ofall sales ofIhe Products by Company at invoice prices reduced by\ndiscounts, rebates, and return of products defined herein. (k) "Intellectual Property" means the Copyrights, Marks and Patents, collectively or in combination, as\nIhe contextsuggess. (l) "Marks" Means all trade names, word marks, trademarks, service marks and logos or designs (including any trade dress that is\nsusceptible to protection under the laws ofthe United States or any other political subdivision in the world), whether or not registered with the United States\nPatent and Trademark Office or trademark office or registry of anyjurisdiction in Ihe world, placed upon or used in connection with Ihe Business ofthe Company\nor the sale, distribution, promotion and marketing of Ihe Producs or of any other goods or services provided or distributed by Company from time to time, and\nincludes, without limitation, "ACT and design" , "Air-C hem Technologies" and "The ACT Monitoring Card System". (m) "Patens" Means all inventions or letters\npatentowned or licensed by or on behalfofthe Company, and which are registered wiIh the United States Patent and Trademark Office or the patent office or\nregistry in anyjurisdiction in the world or are eligible for registration and/or other protection under the laws and treaties ofthe United States or of any such\njurisdiction (n) "Producs" means any chemical based colorimetric device(s) developed by the Company and/or produced by the Company or licensee(s) or other\nagent(s) of the Company to perform the function ofquantitatively or qualitatively measuring and/or indicating chemicals present in the atmosphere. (0)\n"Proprietary Information" Means all of Ihe following materials and information, whether or not patentable or protected by a copyright, trademark, or sen/ice mark,\nto which Employee receives or has received access or which Employee develops or has developed as a result of his employmentwith the Company or during Ihe\nterm of his employmentwiIh the Company or through the use of any of the Company's facilities or resources, or those of is affiliates or of is agens or\ndistributors: (i) Production processes, purchasing information, price liss, performance and scheduling information and data, and olher materials or information\nrelating to Ihe Business ofthe Company; (ii) Discoveries, conceps and ideas, and the embodiment(s) thereof, whether or not actually constituting Intellectual\nProperty hereunder, and the nature and resuls of research and development activities and "know-how" acquired while in Ihe employ ofthe Company; (iii) Any\nother materials or information related to Ihe Business ofthe Company which are notgenerally known to oIhers engaged in similar business or activities; (iv) All\ninventions and ideas which are derived from or related to Employees's access to knowledge of any of Ihe above enumerated materials and information while in\nIhe employ ofthe Company; and (v) Any trade secres, confidential information or proprietary information which the Company has acquired or may in the future\nacquire from any third party during employee's sen/ice to the company, including, without limitation, operating principles, documentation, drawings, programs and\nperformance specifications and resuls provided to the Company by such third parties pursuantto agreemens, understandings and/or acknowledgmens to the\neffectthat such trade secres and confidential or proprietary information provided to the Company by such third parties (collectively "Third Party Confidential\nInformation") is Ihe proprietary and/or confidential information of such respective third part and is to be treated by the Company as ifsuch Third Party Confidential\nInformation were the Company's Confidential Information. (p) "Royalty" means two and one-half percent ofGross Sales ofthe Producs described herein. (q)\n"Salary" has the meaning ascribed to it in Section 4 hereof. (r) "Term" means the Initial Term and any Renewal Term, as such terms are defined below. (5) "Trade\nSecres" means the whole or any portion or phase of any data or information developed, owned or licensed from a Ihird party by the Company to which Employee\nhas gained access as a result of his employmentwith Ihe Company, including any formula, pattern, compilation, program, device, method technique,\nimprovement, or process that: (i) derives independenteconomic value, actual or potential, from not being generally known to, and not being readily ascertainable\nby a proper means by, olher persons who can obtain economic value from is disclosure or use; and (ii) Is Ihe subjectofeffors Ihat are reasonable under the\ncircumstances to maintain is secrecy. Trade Secres shall not include any data or information (i) that has been voluntarily disclosed to the public by the Company\nor has become generally known to the public (exceptwhen such public disclosure has been made by or through Employee, or by a third person or entity with the\nknowledge of Employee, without authorization from the Company); (ii) that has been independeany developed and disclosed to parties other than the Company,\nand the public generally or to Employee with a breach of obligation of confidentiality by any such parties running directly or indirectly to the Company; or (iii) that\nothenNise enters the public domain through lawful means. 2. TERMS OF ENGAGE ME NT; DUTIES. (a) Capacity. The Company hereby employs Employee as\nResearch Chemist and Employee accepts such employment in such capacity by the Company subject to the terms and conditions hereof. (b) Duties. Employee\nrecognizes and agrees that he shall: (i) devote all of his time, energy and skill during regular business hours to faithfully and industriously develop colormetric\ntechnology and products and other technology and products as directed by the Company exclusively for the use and benefit of the Company (vacation time and\nreasonable sick leave excepted); (ii) diligently follow and implement all policies and decisions communicated to him by the Company, to the bestof his ability with\nthe resources provided by the Company, including without limitation, those concerning the production, sale ofor further research and developmentconcerning,\nthe Products; and (iii) faithfully and to the bestof his ability perform the duties and obligations setforth in this Agreement. 3. TE RM; TE RMINATION. (a) Initial\nterm. The term ofthe employmentof Employee by the Company hereunder shall commence on the date hereof and shall end on December 31, 2000 (the "Initial\nTerm"). (b) Renewal Terms(s). Atthe expiration of the Initial Term, this Agreementshall be automatically renewed for separate and successive two (2) year terms\n(individually, a "Renewal Term" and, collectively, "Renewal Terms"); provided, however, the parties may agree in writing to modify the compensation to be paid\npursuantto Section 4 hereofduring any such Renewal Term, butshall not be bound to do so; provided, further, this Agreementshall not be automatically\nrenewed if either party shall give to the other party written notice of his or its intent not to renew this Agreement no fewer than thirty (30) days prior to the\nexpiration of the Initial Term or any Renewal Term, as applicable. (c) Voluntary Termination by Employee. Employee may terminate this Agreement at any time\nduring the Term upon no fewer than sixty (60), but no more than ninety (90) days prior written notice to the Company, in which eventthis Agreement and all of the\nCompany's obligations hereunder shall terminate as of the date contained in such notice except thatthe Royalty shall be payable as provided as in Section (f)\nhereof. Notwithstanding the foregoing, in the event Employee shall terminate this Agreement as a result of a major illness or disability which prevents him from\nperforming his services hereunder, Employee shall thereafter be entitled to receive Salary (as defined below)for a period of ninety (90) days following the date of\nthe occurrence ofsuch injury or disability, and all ofthe other terms of this Agreement, including all Benefits payable by the Company on behalfofthe Employee,\nshall continue until the end ofthe Annual Term in which such termination occurs, and all Royalty shall be payable as provided in Section (f) hereof and Section\n4(c). (d) Termination by the Company for cause. This Agreement may be terminated by the Company for Cause at any time during the Term, upon ten (10) days\nprior written notice to Employee, in which event this Agreement and all of the Company's obligations hereunder shall terminate as of the notice date, except that\nthe Royalty shall be payable as provided in Section (0 hereof and Section 4(c). (e) Termination by the Company other Than for Cause. In the eventthe Company\nterminates this Agreementduring the Term for reasons other than for Cause, then, in addition to any other remedy available at law or equity, Employee shall be\nentitled to continue to receive his Salary, plus all Benefits to be paid by the Company on behalfof Employee for a period equal to one month for every full year of\nsen/ice, but not to exceed six months, after such termination occurs, plus the Royalty as provided in Section (f) hereof and Section 4(c). (fi Sun/ival of Royalty\nPayments. The Royalty as defined in Section 4(c) of this Agreementshall continue to be paid to Employee notwithstanding termination for any reason of this\nAgreement until the firstoccurrence ofone ofthe following events: (i) Employee dies, in which event any Royalty accrued and payable on the date of death shall\nbe paid to Employee's estate, and the Royalty shall not thereafter be payable to any other person or entity; (ii) Employee develops Competing Products for any\nCompeting Business, or any employer, person, or entity other than the Company or its affiliates, in which eventthe Royalty shall cease being paid to Employee or\nany other person or entity; or (iii) Employee becomes employed by or affiliated with a Competing Business as, without limitation, an employee, officer, director,\nagent, consultant, or advisor, in which capacity Employee develops, or assists the Competing Business or its affiliates, employees, officers, directors, agents,\nconsultants, or advisors in the developmentof, Competing Products, in which eventthe Royalty shall cease being paid to Employee or any other person or entity.\n(g) Return of Embodiments of Proprietary Information Upon Termination. All notes, data, reference materials, sketches, drawings, memoranda and records in any\nway relating to any of the Proprietary Information or the Business ofthe Company and any other physical embodiment of the Proprietary Information shall belong\nexclusively to the Company, and Employee agrees to turn over to the Company the originals and all copies of such materials developed or generated by the\nEmployee or coming into his possession during the term of or as a result of his employment by the Company atthe requestof the Company or, in the absence of\nsuch a request, upon termination (for whatever reason) of Employees employmentwith the Company. (h) Sun/ival ofCovenants. The Covenants of Employee set\nforth in Section 5 hereofshall survive the termination ofthis Agreement for any reason whatsoever and shall not be extinguished thereby so long as the Royalty is\npaid in accordance with Section 4(c) and Section 3(f). 4. COMPENSATION. (a) Salary. During the Term, the Company shall pay Employee an annual salary of\nSixty Thousand and No/100 Dollars ($60,000.00) (the "Salary"), which Salary shall be payable in the manner and atthe times which the Company regularly\ncompensates its employees, less applicable state and federal taxes. In addition, but subjectto conditions oftermination set forth above, the Company shall pay\nEmployee the Bonus and Royalty, as defined herein. Ifthe Bonus outlined in 4(b), when added to the base salary at the end of each year does notequal the cost\nof living based on the US. DeptOf Labor costof living index, the Company shall make an adjustment to the base salary for the following year equal to the cost of\nliving index. (b) Bonus. The Company shall pay Employee a bonus equal to Five Thousand and No/100 Dollars ($5000.00) plus granta ten-year option to\npurchase Five Thousand (5000) shares of the Company's (EVRM) Common Stock. Such options will be granted at the then market price of the Stock and shall be\nfully vested at issuance. This bonus will be awarded for each additional chemical for which monitoring device(s) is developed by Employee (the "Bonus");\nprovided, however, the chemical must be approved by the Marketing Departmentof the Company. The monitoring device(s) indicating such chemical will be\nconsidered "developed" for purposes hereof upon the completion of the standard validation protocol and an algorithm defining the devices'(s') performance has\nbeen developed and/or an acceptable color match(s) has been identified in the case of qualitative device(s). Bonus shall be paid to Employee within thirty (30)\ndays after monitoring device has been "developed". (c) Royalty. By the thirtieth (30th) day afterthe lastday ofeach calendar year quarter (each a "Royalty\nOuarter"), the Company shall pay to Employee a Royalty (The "Royalty") equal to Two and One-Half Percent(2.5%) ofGross Sales of the Products as defined\nherein for the immediate preceding calendar quarter. A written statementofthe value and quantity ofeach colorimetric device sold during the "Royalty Ouarter"\nshall be given to Employee with each quarterly payment. In the eventthat such a written statement is not provided employee shall have the right to examine any\nof Company's State Sales Tax Reports for sale of Products as defined herein. Employee shall also have the right to examine all books of account recording Gross\nSales as defined herein. The parties expressly agree that the paymentofthe Royalty as described in this Agreement shall sun/ive any termination of this\nAgreementexcept as provided in Section 3(f) of this agreement. In the event of bankruptcy either voluntary or involuntary, or the non-payment of Royalty\npayments to the Employee by the Company as specified in this Agreement and notcured in ten (10) days after written notification of delinquency by the\nEmployee, all obligations of Employee under this agreementor which could or might be imposed by statutory or common law shall be extinguished. In the event\nthat the technology required to produce the Product is transferred through sale or any other means to any other entity, the Royalty as defined herein shall be paid\nby such entity. (d) Paymenton Death. In the event Employee dies during the Term ongreement, and so long as this Agreementwas not the subjectof a notice\nof terminating as provided in Section 3 hereof, the Company shall pay to his estate any Salary, Royalty or Bonus thatwould have been payable up until the end of\nthe month in which Employee dies. (e) Benefits. Employee shall be entitled to participate in any retirement, profit sharing, hospital, medical, disability and life\ninsurance programs regularly maintained by the Company for its employees. (0 Expense Reimbursement. The Company will reimburse Employee for all ordinary,\nreasonable necessary expense incurred by him in carrying out his duties under this Agreement upon Employee's presentation to the Company from time to time\nof an itemized accountof the receipts for such expenses in such form as may be required by the Company; provided, however, such reimbursement shall be\nconditioned upon deductibility by the Company ofsuch expenses from gross income for federal tax purposes. (g) Product Liability. The Employee is in no way\nresponsible for any product liability. The Company accepts full and complete responsibility for the Product and any claims made by the Company regarding the\nProductor its capabilities or performance, and the Company will maintain at all times product liability insurance specifically protecting the employee against any\nlegal claims made against him in his capacity as developer of the Product. The Company will furnish the Employee with evidence ofsuch insurance and notify\nemployee immediately of any cancellation, modification or amendment thereto. 5. COVE NANTS OF E M P LOY E E. (a) Ownership of Trade Secrets, Confidential\nInformation, Proprietary Information and Intellectual Property. Employee agrees thatthe Trade Secrets, Confidential Information, Proprietary Information,\nIntellectual Property, and all physical embodiments thereof (collectively the "Information") to which the employee has come into possession of as a result of or\nduring the term of his employment by the Company; are, and shall at all times remain, the sole and exclusive property ofthe Company, and that any of the\nInformation produced or developed by him as an employee of the Company shall be considered work for hire under United States law. Employee agrees to (a)\nimmediately disclose or transfer to the Company all Information developed in whole or part by him during the Term, (b) assign to the Company any right, title or\ninterest he may have in such Information, and (c) at the request and expense ofthe Company, to do all things and sign all documents or instruments reasonably\nnecessary to eliminate any ambiguity as to the ownership ofthe Company ofsuch Information including, without limitation, providing to the Company his full\ncooperation in any litigation or other proceedings to establish, protector obtain such rights while he is in the employee of the Company. (b) Non-Disclosure or Use\nofTrade Secrets or Confidential Information. During the term of his employment with the Company and at any and all times following the termination ofsuch\nemployment, Employee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Trade Secretor Confidential Information ofwhich\nhe came into possession as a resultof his employment by the Company for any purpose including, without limitation, the solicitation ofexisting company\ncustomers ofwhich the Employee is aware, except in the course of performing duties assigned to him by the Company. (c) Non-Disclosure or Use of Proprietary\nInformation. During the term of his employment with the Company and for a period of one (1) year after termination (for whatever reason) of such employment,\nEmployee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Proprietary Information for any purpose. (d) No Solicitation.\nEmployee covenants and agrees that, while he is employed by the Company and for a period of two (2) years following termination (for any reason) ofsuch\nemployment, he will not, directly or indirectly, solicit, induce or hire away, or assist any third person or entity in inducing, diverting, soliciting or hiring away, (i) any\nemployee of the Company, whether such employee is employed pursuant to a written contract, is for a determined period or is at will, or (ii) any person or entity\nwhich, at the time of termination ofemployment, was a client or customer of the Company or with whom or which, atthe time of termination of employment, the\nCompany was negotiating regarding the sale or distribution of the Company's sen/ices or products. (e) Return ofCompany Property. Employee covenants and\nagrees that, upon termination (for any reason) ofthis Agreement, he will return or turn over to the Company all physical embodiments of the Information including\nwithoutlimitation, all notes, data reference materials sketches, drawings, memoranda, records, laboratory equipment, chemicals, tools, implements, computers,\ndrives, diskettes, tapes, renditions, models, mock-ups, prototypes, evaluations, measurements, and tests, and all originals copies or other physical embodiments\nthereof, which in any way relate to any of the Information or to the Business of the Company which belong to the Company or were developed or generated while\nin the employment of the Company. (f) Additional Provisions. Employee recognizes and agrees: (i) that the covenants and agreements contained in Section 5 of\nthis Agreement are ofthe essence ofthis Agreement; (ii) that each ofsuch covenants is reasonable and necessary to protect and preserve the interests and\nproperties ofthe Company and the Business of the Company; (iii) that loss and damage may be suffered by the Company should Employee breach any ofsuch\ncovenants or agreements; (iv) that each of such covenants and agreements is separate, distinct and severable from the other and remaining provisions ofthis\nAgreement. 6. MISCELLANEOUS PROVISIONS. (a) Binding Effect. This Agreementshall inure to the benefit of, and shall be binding upon, the parties hereto\nand their respective heirs, successors, assigns and legal representatives. (b) Severability. The provisions of this Agreementshall be deemed severable and the\ninvalidity or the unenforceability of any one or more ofthe provisions hereof shall not affectthe validity or enforceability of the other provisions hereof. (d) Notices.\nAll notices and other communications which are required or permitted hereunder shall be in writing and shall be sufficient if delivered by hand or mailed by\ncertified mail return receipt requested, postage prepaid, to the addresses set forth below or to such other address as the parties shall specify by notice in writing\nto the other party. All such notices and communications made by mail shall be deemed to have been received on the date of actual delivery or on the fifth (5th)\nbusiness day afterthe mailing thereof, whichever is earlier: Company: Envirometrics Products Company 1019 Bankton Dr. Charleston, SC 29406 Employee:\nThomas A. Wilkie 1370 Lamont NonNood Rd. Pitt'sboro, North Carolina 27312 (e) Entire Agreement. This Agreement contains the entire agreement between the\nparties hereto and supersedes and terminates any and all prior written agreements and understandings between the parties hereto with respect to the\nemployment of, or work performed in the capacity of an independent contractor by the Employee or payments to Employee by the Company for any reason or\nwork product, including, without limitation, the Employee Invention AssignmentAgreement and the Employee Non-Disclosure and Non-Competition Agreement,\nboth Agreements executed on or about March 13, 1992, and any subsequent amendments, modifications and understandings related thereto. (fl Amendments\nand Waivers. This Agreement may not be modified or amended except by an instrumentor instruments in writing signed by the party against whom enforcement\nof any such modification or amendment is sought, Either party hereto may by an instrument in writing waive compliance by the other party of any other provision\nof this Agreementon the part ofsuch other party. The waiver by any party of a breach of any term or provision shall not be construed as a waiver of any\nsubsequent breach. (g) Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not be deemed to control\nor affectthe meaning or construction of any provision. The Company is a corporation in good standing under the laws of South Carolina and is duly authorized to\ncarry on the business presently conducted by it and its signers of this Agreement are properly authorized to execute, deliver and perform this Agreement on\nbehalf of the Company and thatthis Agreementconstitutes a valid and legally binding obligation ofthe Company. IN WITNESS WHE REOF, the parties hereto\nhave executed this Agreement to be effective as ofthe date and year firstwritten above. ATTE ST The Company: Envirometrics Products Company\nSecretary By: Walter H. Elliott, III, President [CORPORATE SEAL]	EX-10.10 13 EXHIBIT 10.10 EMPLOYMENT ROYALTY AND NON-DISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement") is made as of the 15th\nday of May, 1996, by and between ENVIROMETRICS PRODUCTS COMPANY, a corporation organized under the laws of the State of South Carolina and\nincluding its agents, representatives, divisions, subdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities\nand\nsuccessors in interest (hereafter "the Company"), and TOM WILKIE, an individual resident of the State of North Carolina "Employee"). WITNESSETH:\nWHEREAS, the Company is engaged in the Business of the Company and, in the course of such activity, has acquired or developed certain Trade Secrets,\nConfidential Information, Intellectua Property and roprietary Information (as such terms are hereinafter defined) not generally known in the Company's industry\nor otherwise; WHEREAS, the Company understands that the Employee has brought to the Company and provided the Company with certain proprietary\ntechnology allowing the Company advantages in the marketplace it would not otherwise enjoy; and WHEREAS, such Trade Secrets, Confidential Information,\nIntellectual roperty and roprietary Information provide the Company with a competitive advantage in the marketplace; WHEREAS, mployee has been, and\nafter and by virtue of the execution of this Agreement will continue to be, employed by the Company in a position involving the trust and confidence of the\nCompany; and WHEREAS, in the course of his employment with the Company, or through his use of the Company's facilities or resources, mployee has had\nand will have access to, and has developed and may develop or contribute to the development of, Trade Secrets, Confidential Information, Intellectua P roperty\nand Proprietary Information, all solely in connection with his activities as an employee of the Company; and WHEREAS, Employee understands and agrees\nthat\nsubstantial benefits and consideration will inure to him under this Agreement that he would not otherwise enjoy were he not to execute the same NOW\nTHEREFORE, in consideration of and as an express condition to the continuance of employment of E mployee by the Company, the mutual agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree\nas follows: 1. FINITIONS. (a) "Bonus" has the meaning ascribed to it in Section 4 hereof. (b) "Business of the Company" means and includes the business and\ncommercial activities of the Company, as such business is conducted while this Agreement is in effect, including, without limitation, designing, developing,\ntesting,\nmanufacturing, advertising, distributing and selling industrial hygiene and environmental air monitoring and related products. )"Cause" means (i) fraud,\ndishonesty, demonstrated incompetence in the performance of professional duties; (ii) excessive unexcused absences from work; (iii) engaging in activities\nprohibited by the policies of the Company as communicated in writing to Employee or expressly prohibited by the terms of this Agreement; or injury, accident,\nillness or other incapacity which wholly, or continuously and materially, disables Employee from performing his duties hereunder for a period of ninety (90) days\nand thereafter for ten (10) days after the Company shall have given Employee written notice of the Company's intention to terminate this Agreement and its\nemployment relationship with Employee because of such disability. The Company will at all times during his employment with the company and at no cost to the\nEmployee provide the Employee with disability insurance sufficient to provide Employee with a minimum of sixty (60) percent of his earnings unti recovery or age\nsixty-five (65) and wil furnish Employee with a current copy of such policy and immediately notify E mployee of any changes or amendments made to such policy.\n(d) "Colorimetric Device" means any device that indicates through corresponding changes in its reflectance or absorbance of light, the presence and/or level of\nexposure to an indicated chemical(s) or substance. (e) "Company" means ENVIROMETRICS PRODUCTS COMPANY, its agents, representatives, divisions,\nsubdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities and successors in interest (f) "Competing Business"\nmeans any person or entity in the same business or substantially the same business as the Business of Company. (g) 'Competing roduct" means any good that\nperforms substantially the same function(s) as any of the roducts. (h) "Confidential Information" means any and all data and information relating to the Business\nof the Company (whether constituting a Trade Secret or not) which is or has been developed by or disclosed to mployee or of which E mployee became\naware\nas a consequence of or through his relationship with the Company and which has value to the Company and is not generally known by its competitors. (i)\n"Copyrights" means all original "works of authorship", "compilations", and/or "derivation" including, without limitation, literary, artistic, pictorial, graphic and other\nintellectual works owned or claimed by Company which are registered with the United States Copyright Office or the copyright office of any other jurisdiction,\nor\nare eligible to be so registered, or are entitled to protection by and under the copyright laws and treaties of the United States or under the equivalent laws of any\nother jurisdiction. (j) "Gross Sales" means the total, without geographical limitations, of all sales of the Products by Company at invoice prices reduced\nby\ndiscounts, rebates, and return of products defined herein. (k) "Intellectual Property" means the Copyrights, Marks and Patents, collectively or in combination, as\nthe context suggests. (I) "Marks" Means all trade names, word marks, trademarks, service marks and logos or designs (including any trade dress that\nis\nsusceptible to protection under the laws of the United States or any other political subdivision in the world), whether or not registered with the United States\nPatent and Trademark Office or trademark office or registry of any jurisdiction in the world, placed upon or used in connection with the Business of the Company\nor the sale, distribution, promotion and marketing of the P roducts or of any other goods or services provided or distributed by Company from time to time, and\nincludes, without limitation, "ACT and design" "Air-Chem Technologies" and "The ACT Monitoring Card ystem". (m) "Patents" Means all inventions or letters\npatent owned or licensed by or on behalf of the Company, and which are registered with the Jnited States Patent and Trademark O ffice or the patent office\nor\nregistry in any jurisdiction in the world or are eligible for registration and/or other protection under the laws and treaties of the United States or of any such\njurisdiction (n) roducts" means any chemical based colorimetric device(s) developed by the Company and/or produced by the Company or licensee(s or other\nagent(s) of the Company to perform the function of quantitatively or qualitatively measuring and/or indicating chemicals present in the atmosphere. (o)\n"Proprietary Information" Means all of the following materials and information, whether or not patentable or protected by a copyright, trademark, or service mark,\nto which Employee receives or has received access or which mployee develops or has developed as a result of his employment with the Company or during the\nterm of his employment with the Company or through the use of any of the Company's facilities or resources, or those of its affiliates or of its agents or\ndistributors: (i) Production processes, purchasing information, price lists, performance and scheduling information and data, and other materials or information\nrelating to the Business of the Company; (ii) Discoveries, concepts and ideas, and the embodiment(s) thereof, whether or not actually constituting Intellectual\nProperty hereunder, and the nature and results of research and development activities and "know-how" acquired while in the employ of the Company; (iii) Any\nother materials or information related to the Business of the Company which are not generally known to others engaged in similar business or activities; (iv)\nAll\ninventions and ideas which are derived from or related to Employees's access to knowledge of any of the above enumerated materials and information while in\nthe\nemploy of the Company; and (v) Any trade secrets, confidential information or proprietary information which the Company has acquired or may in the future\nacquire from any third party during employee's service to the company, including, without limitation, operating principles, documentation, drawings, programs and\nperformance specifications and results provided to the Company by such third parties pursuant to agreements, understandings and/or acknowledgments to the\neffect that such trade secrets and confidential or proprietary information provided to the Company by such third parties (collectively "Third arty Confidential\nInformation") is the proprietary and/or confidential information of such respective third part and is to be treated by the Company as if such Third arty Confidential\nInformation were the Company's Confidential Information. (p) "Royalty" means two and one-half percent of Gross Sales of the roducts described herein. (q)\n"Salary" has the meaning ascribed to it in Section 4 hereof. (r) "Term" means the Initia Term and any Renewal Term, as such terms are defined below. (s) "Trade\nSecrets" means the whole or any portion or phase of any data or information developed, owned or licensed from a third party by the Company to which Employee\nhas\ngained access as a result of his employment with the Company, including any formula, pattern, compilation, program, device, method technique,\nimprovement, or process that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable\nby a proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) Is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Trade Secrets shall not include any data or information (i) that has been voluntarily disclosed to the public by the Company\nor has become generally known to the public (except when such public disclosure has been made by or through Employee, or by a third person or entity with\nthe\nknowledge of Employee, without authorization from the Company); (ii) that has been independently developed and disclosed to parties other than the Company,\nand the public generally or to Employee with a breach of obligation of confidentiality by any such parties running directly or indirectly to the Company; or (iii) that\notherwise enters the public domain through lawful means. 2. TERMS OF ENGAGEMENT; DUTIES. (a) Capacity. The Company hereby employs Employee as\nResearch Chemist and Employee accepts such employment in such capacity by the Company subject to the terms and conditions hereof. (b) Duties. E mployee\nrecognizes and agrees that he shall: (i) devote all of his time, energy and skill during regular business hours to faithfully and industriously develop colormetric\ntechnology and products and other technology and products as directed by the Company exclusively for the use and benefit of the Company (vacation time and\nreasonable sick leave excepted); (ii) diligently follow and implement all policies and decisions communicated to him by the Company, to the best of his ability with\nthe resources provided by the Company, including without limitation, those concerning the production, sale of or further research and development concerning,\nthe roducts; and (iii) faithfully and to the best of his ability perform the duties and obligations set forth in this Agreement. 3. TERM; TERMINATION. (a) Initia\nterm. The term of the employment of Employee by the Company hereunder shall commence on the date hereof and shall end on December 31, 2000 (the "Initial\nTerm"). (b) Renewal Terms(s). At the expiration of the Initia Term, this Agreement shall be automatically renewed for separate and successive two (2) year terms\n(individually, a "Renewal Term" and, collectively, "Renewal Terms"); provided, however, the parties may agree in writing to modify the compensation to be paid\npursuant to Section 4 hereof during any such enewal Term, but shall not be bound to do so; provided, further this Agreement shall not be automatically\nrenewed if either party shall give to the other party written notice of his or its intent not to renew this Agreement no fewer than thirty (30) days prior to the\nexpiration of the Initial Term or any Renewal Term, as applicable. (c) Voluntary Termination by Employee. E mployee may terminate this Agreement at any time\nduring the Term upon no fewer than sixty (60), but no more than ninety (90) days prior written notice to the Company, in which event this Agreement\nand\nall\nof\nthe\nCompany's obligations hereunder shall terminate as of the date contained in such notice except that the Royalty shall be payable as provided as in Section (f)\nhereof. Notwithstanding the foregoing, in the event Employee shall terminate this Agreement as a result of a major illness or disability which prevents him from\nperforming his services hereunder, Employee shall thereafter be entitled to receive Salary (as defined below)fo a period of ninety (90) days following the date of\nthe occurrence of such injury or disability, and all of the other terms of this Agreement, including all Benefits payable by the Company on behalf of the mployee,\nshall continue until the end of the Annua Term in which such termination occurs, and all Royalty shal be payable as provided in Section (f) hereof and Section\n4(c). (d) Termination by the Company for cause. This Agreement may be terminated by the Company for Cause at any time during the Term, upon ten (10)\ndays\nprior written notice to Employee, in which event this Agreement and all of the Company's obligations hereunder shall terminate as of the notice date, except that\nthe Royalty shal be payable as provided in Section (f) hereof and Section 4(c). (e) Termination by the Company other Than for Cause. In the event the Company\nterminates this Agreement during the Term for reasons other than for Cause, then, in addition to any other remedy available at law or equity, Employee shall\nbe\nentitled to continue to receive his Salary, plus all Benefits to be paid by the Company on behalf of E mployee for a period equal to one month for every full year\nof\nservice, but not to exceed six months, after such termination occurs, plus the oyalty as provided in Section (f) hereof and Section 4(c). (f) Survival of oyalty\nPayments. The Royalty as defined in Section 4(c) of this Agreement shall continue to be paid to Employee notwithstanding termination for any reason of this\nAgreement until the first occurrence of one of the following events: (i) Employee dies, in which event any oyalty accrued and payable on the date of death shall\nbe paid to Employee's estate, and the oyalty shall not thereafter be payable to any other person or entity; (ii) mployee develops Competing Products for\nany\nCompeting Business, or any employer, person, or entity other than the Company or its affiliates, in which event the oyalty shall cease being paid to Employee or\nany other person or entity; or (iii) mployee becomes employed by or affiliated with a Competing Business as, without limitation, an employee, officer, director,\nagent, consultant, or advisor, in which capacity Employee develops, or assists the Competing Business or its affiliates, employees, officers, directors, agents,\nconsultants, or advisors in the development of, Competing Products, in which event the oyalty shal cease being paid to Employee or any other person or entity.\n(g) Return of mbodiments of Proprietary Information Upon Termination. All notes, data, reference materials, sketches, drawings, memoranda and records in any\nway relating to any of the roprietary Information or the Business of the Company and any other physical embodiment of the Proprietary Information shal belong\nexclusively to the Company, and mployee agrees to turn over to the Company the originals and all copies of such materials developed or generated by the\nE mployee or coming into his possession during the term of or as a result of his employment by the Company at the request of the Company or, in the absence of\nsuch a request, upon termination (for whatever reason) of Employees employment with the Company. (h) Survival of Covenants. The Covenants of Employee set\nforth in Section 5 hereof shall survive the termination of this Agreement for any reason whatsoever and shall not be extinguished thereby so long as the oyalty is\npaid in accordance with Section 4(c) and Section 3(f). 4. COMPENSATION. (a) Salary. During the Term, the Company shall pay Employee an annua salary of\nSixty Thousand and No/100 Dollars ($60,000.00) (the "Salary"), which Salary shall be payable in the manner and at the times which the Company regularly\ncompensates its employees, less applicable state and federa taxes. In addition, but subject to conditions of termination set forth above, the Company shall pay\nE mployee the Bonus and Royalty, as defined herein. If the Bonus outlined in 4(b), when added to the base salary at the end of each year does not equal the cost\nof living based on the U.S. Dept Of Labor cost of living index, the Company shall make an adjustment to the base salary for the following year equal to the cost of\nliving index. (b) Bonus. The Company shall pay Employee a bonus equal to Five Thousand and No/100 Dollars ($5000.00) plus grant a ten-year option to\npurchase Five Thousand (5000) shares of the Company's (EVRM) Common Stock. Such options will be granted at the then market price of the Stock and shal be\nfully vested at issuance. This bonus will be awarded for each additional chemical for which monitoring device(s) is developed by Employee (the "Bonus");\nprovided, however, the chemical must be approved by the Marketing Department of the Company. The monitoring device(s) indicating such chemical will be\nconsidered "developed" for purposes hereof upon the completion of the standard validation protoco and an algorithm defining the devices'(s' performance has\nbeen developed and/or an acceptable color match(s) has been identified in the case of qualitative device(s). Bonus shall be paid to E mployee within thirty (30)\ndays after monitoring device has been "developed". (c) Royalty. By the thirtieth (30th) day after the last day of each calendar year quarter (each a "Royalty\nQuarter"),\nthe Company shall pay to Employee a Royalty (The "Royalty") equal to Two and One-Half Percent (2.5%) of Gross Sales of the Products as defined\nherein for the immediate preceding calendar quarter. A written statement of the value and quantity of each colorimetric device sold during the "Royalty Quarter"\nshall be given to mployee with each quarterly payment. In the event that such a written statement is not provided employee shall have the right to examine\nany\nof Company's State Sales Tax Reports for sale of roducts as defined herein. Employee shall also have the right to examine all books of account recording Gross\nSales as defined herein. The parties expressly agree that the payment of the oyalty as described in this Agreement shall survive any termination of this\nAgreement except as provided in Section 3(f) of this agreement. In the event of bankruptcy either voluntary or involuntary, or the non-payment of Royalty\npayments to the Employee by the Company as specified in this Agreement and not cured in ten (10) days after written notification of delinquency by the\nEmployee, all obligations of Employee under this agreement or which could or might be imposed by statutory or common law shal be extinguished. In the event\nthat the technology required to produce the roduct is transferred through sale or any other means to any other entity, the oyalty as defined herein shal be\npaid\nby such entity. (d) ayment on Death. In the event Employee dies during the Term of Agreement, and so long as this Agreement was not the subject of a notice\nof terminating as provided in Section 3 hereof, the Company shal pay to his estate any Salary, Royalty or Bonus that would have been payable up until the end of\nthe month in which mployee dies. (e) Benefits. E mployee shall be entitled to participate in any retirement, profit sharing, hospital, medical, disability and life\ninsurance programs regularly maintained by the Company for its employees. (f) Expense Reimbursement. The Company wil reimburse Employee for all ordinary,\nreasonable necessary expense incurred by him in carrying out his duties under this Agreement upon mployee's presentation to the Company from time to time\nof an itemized account of the receipts for such expenses in such form as may be required by the Company; provided, however, such reimbursement shall be\nconditioned upon deductibility by the Company of such expenses from gross income for federal tax purposes. (g) roduct Liability. The Employee is in no way\nresponsible for any product liability. The Company accepts full and complete responsibility for the Product and any claims made by the Company regarding the\nProduct\nor\nits capabilities or performance, and the Company will maintain at all times product liability insurance specifically protecting the employee against any\nlega claims made against him in his capacity as developer of the Product. The Company will furnish the Employee with evidence of such insurance and notify\nemployee immediately of any cancellation, modification or amendment thereto. 5. COVENANTS OF EMPLOYEE. (a) Ownership of Trade Secrets, Confidential\nInformation, P roprietary Information and Intellectual roperty. mployee agrees that the Trade Secrets, Confidential Information, Proprietary Information,\nIntellectual Property, and all physical embodiments thereof (collectively the "Information") to which the employee has come into possession of as a result of or\nduring the term of his employment by the Company; are, and shall at all times remain, the sole and exclusive property of the Company, and that any of the\nInformation produced or developed by him as an employee of the Company shal be considered work for hire under United States law. mployee agrees to (a)\nimmediately disclose or transfer to the Company all Information developed in whole or part by him during the Term, (b) assign to the Company any right, title or\ninterest he may have in such Information, and (c) at the request and expense of the Company, to do all things and sign all documents or instruments reasonably\nnecessary to eliminate any ambiguity as to the ownership of the Company of such Information including, without limitation, providing to the Company his full\ncooperation in any litigation or other proceedings to establish, protect or obtain such rights while he is in the employee of the Company. (b) Non-Disclosure or Use\nof Trade ecrets or Confidential Information. During the term of his employment with the Company and at any and all times following the termination of such\nemployment, Employee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Trade Secret or Confidential Information of which\nhe came into possession as a result of his employment by the Company for any purpose including, without limitation, the solicitation of existing company\ncustomers of which the Employee is aware, except in the course of performing duties assigned to him by the Company. (c) Non-Disclosure or Use of roprietary\nInformation. During the term of his employment with the Company and for a period of one (1) year after termination (for whatever reason) of such employment,\nEmployee agrees not to use, reveal, report publish, disclose or transfer, directly or indirectly, any Proprietary Information for any purpose. (d) No Solicitation.\nEmployee covenants and agrees that, while he is employed by the Company and for a period of two (2) years following termination (for any reason) of such\nemployment, he will not, directly or indirectly, solicit, induce or hire away, or assist any third person or entity in inducing, diverting, soliciting or hiring away, (i) any\nemployee of the Company, whether such employee is employed pursuant to a written contract, is for a determined period or is at will, or (ii) any person or entity\nwhich, at the time of termination of employment, was a client or customer of the Company or with whom or which, at the time of termination of employment, the\nCompany was negotiating regarding the sale or distribution of the Company's services or products. (e) Return of Company roperty. mployee covenants and\nagrees that, upon termination (for any reason) of this Agreement, he will return or turn over to the Company all physical embodiments of the Information including\nwithout limitation, all notes, data reference materials sketches, drawings, memoranda, records, laboratory equipment, chemicals, tools, implements, computers,\ndrives, diskettes, tapes, renditions, models, mock-ups, prototypes, evaluations, measurements, and tests, and all originals copies or other physical embodiments\nthereof, which in any way relate to any of the Information or to the Business of the Company which belong to the Company or were developed or generated while\nin the employment of the Company. (f) Additional P rovisions. mployee recognizes and agrees: (i) that the covenants and agreements contained in Section 5 of\nthis Agreement are of the essence of this Agreement; (ii) that each of such covenants is reasonable and necessary to protect and preserve the interests and\nproperties of the Company and the Business of the Company; (iii) that loss and damage may be suffered by the Company should Employee breach any of such\ncovenants or agreements; (iv) that each of such covenants and agreements is separate, distinct and severable from the other and remaining provisions of this\nAgreement. 6. MISCELLANEOUS PROVISIONS. (a) Binding Effect. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto\nand their respective heirs, successors, assigns and legal representatives. (b) everability. The provisions of this Agreement shall be deemed severable and the\ninvalidity or the unenforceability of any one or more of the provisions hereof shall not affect the validity or enforceability of the other provisions hereof. (d) Notices.\nAl notices and other communications which are required or permitted hereunder shall be in writing and shall be sufficient if delivered by hand or mailed by\ncertified mail return receipt requested, postage prepaid, to the addresses set forth below or to such other address as the parties shall specify by notice in writing\nto the other party. All such notices and communications made by mail shall be deemed to have been received on the date of actual delivery or on the fifth (5th)\nbusiness day after the mailing thereof, whichever is earlier: Company: Envirometrics Products Company 1019 Bankton Dr. Charleston, SC 29406 mployee:\nThomas A. Wilkie 1370 Lamont Norwood Rd. ittsboro, North Carolina 27312 (e) ntire Agreement. This Agreement contains the entire agreement between the\nparties hereto and supersedes and terminates any and all prior written agreements and understandings between the parties hereto with respect to the\nemployment of, or work performed in the capacity of an independent contractor by the mployee or payments to mployee by the Company for any reason or\nwork product, including, without limitation, the Employee Invention Assignment Agreement and the Employee Non-Disclosure and Non-Competition Agreement\nboth Agreements executed on or about March 13, 1992, and any subsequent amendments, modifications and understandings related thereto. (f) Amendments\nand Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement\nof any such modification or amendment is sought, E ither party hereto may by an instrument in writing waive compliance by the other party of any other provision\nof this Agreement on the part of such other party. The waiver by any party of a breach of any term or provision shall not be construed as a waiver of any\nsubsequent breach. (g) Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not be deemed to control\nor affect the meaning or construction of any provision. The Company is a corporation in good standing under the laws of South Carolina and is duly authorized to\ncarry on the business presently conducted by it and its signers of this Agreement are properly authorized to execute, deliver and perform this Agreement on\nbehalf of the Company and that this Agreement constitutes a valid and legally binding obligation of the Company. IN WITNESS WHEREOF the parties hereto\nhave executed this Agreement to be effective as of the date and year first written above. ATTEST The Company: Envirometrics Products Company\nSecretary By: Walter H. Elliott, III, resident [CORPORATE SEAL]\nEMPLOYEE:\nThomas A. Wilkie	EX-10 .10 13 EXHIBIT 10.10 EMPLOYMENT, ROYALTY AND NON-DISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement") is made as of the 15th\nday of May, 1996, by and between ENVIROMETRICS PRODUCTS COMPANY, a corporation organized under the laws of the State of South Carolina and\nincluding its agents, representatives, divisions, subdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities and\nsuccessors in interest (hereafter "the Company"), and TOM WILKIE, an individual resident of the State of North Carolina ("Employee"). WITNESSETH:\nWHEREAS, the Company is engaged in the Business of the Company and, in the course of such activity, has acquired or developed certain Trade Secrets,\nConfidential Information, Intellectual Property and Proprietary Information (as such terms are hereinafter defined) not generally known in the Company's industry\nor otherwise; WHEREAS, the Company understands that the Employee has brought to the Company and provided the Company with certain proprietary\ntechnology allowing the Company advantages in the marketplace it would not otherwise enjoy; and WHEREAS, such Trade Secrets, Confidential Information,\nIntellectual Property and Proprietary Information provide the Company with a competitive advantage in the marketplace; WHEREAS, Employee has been, and\nafter and by virtue of the execution of this Agreement will continue to be, employed by the Company in a position involving the trust and confidence of the\nCompany; and WHEREAS, in the course of his employment with the Company, or through his use of the Company's facilities or resources, Employee has had\nand will have access to, and has developed and may develop or contribute to the development of, Trade Secrets, Confidential Information, Intellectual Property\nand Proprietary Information, all solely in connection with his activities as an employee of the Company; and WHEREAS, Employee understands and agrees that\nsubstantial benefits and consideration will inure to him under this Agreement that he would not otherwise enjoy were he not to execute the same. NOW\nTHEREFORE, in consideration of and as an express condition to the continuance of employment of Employee by the Company, the mutual agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree\nas follows: 1. DEFINITIONS . (a) "Bonus" has the meaning ascribed to it in Section 4 hereof. (b) "Business of the Company" means and includes the business and\ncommercial activities of the Company, as such business is conducted while this Agreement is in effect, including, without limitation, designing, developing, testing,\nmanufacturing, advertising, distributing and selling industrial hygiene and environmental air monitoring and related products. (c)"Cause" means (i) fraud,\ndishonesty, demonstrated incompetence in the performance of professional duties; (ii) excessive unexcused absences from work; (iii) engaging in activities\nprohibited by the policies of the Company as communicated in writing to Employee or expressly prohibited by the terms of this Agreement; or injury, accident,\nillness or other incapacity which wholly, or continuously and materially, disables Employee from performing his duties hereunder for a period of ninety (90) days\nand thereafter for ten (10) days after the Company shall have given Employee written notice of the Company's intention to terminate this Agreement and its\nemployment relationship with Employee because of such disability. The Company will at all times during his employment with the company and at no cost to the\nEmployee provide the Employee with disability insurance sufficient to provide Employee with a minimum of sixty (60) percent of his earnings until recovery or age\nsixty-five (65) and will furnish Employee with a current copy of such policy and immediately notify Employee of any changes or amendments made to such policy.\n(d) "Colorimetric Device" means any device that indicates through corresponding changes in its reflectance or absorbance of light, the presence and/or level of\nexposure to an indicated chemical(s) or substance. (e) "Company" means ENVIROMETRICS PRODUCTS COMPANY, its agents, representatives, divisions,\nsubdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities and successors in interest. (f) "Competing Business"\nmeans any person or entity in the same business or substantially the same business as the Business of Company. (g) "Competing Product" means any good that\nperforms substantially the same function(s) as any of the Products. (h) "Confidential Information" means any and all data and information relating to the Business\nof the Company (whether constituting a Trade Secret or not) which is or has been developed by or disclosed to Employee or of which Employee became aware\nas a consequence of or through his relationship with the Company and which has value to the Company and is not generally known by its competitors. (i)\n"Copyrights" means all original "works of authorship", "compilations", and/or "derivation" including, without limitation, literary, artistic, pictorial, graphic and other\nintellectual works owned or claimed by Company which are registered with the United States Copyright Office or the copyright office of any other jurisdiction, or\nare eligible to be so registered, or are entitled to protection by and under the copyright laws and treaties of the United States or under the equivalent laws of any\nother jurisdiction. (j) "Gross Sales" means the total, without geographical limitations, of all sales of the Products by Company at invoice prices reduced by\ndiscounts, rebates, and return of products defined herein. (k) "Intellectual Property" means the Copyrights, Marks and Patents, collectively or in combination, as\nthe context suggests. (l) "Marks" Means all trade names, word marks, trademarks, service marks and logos or designs (including any trade dress that is\nsusceptible to protection under the laws of the United States or any other political subdivision in the world), whether or not registered with the United States\nPatent and Trademark Office or trademark office or registry of any jurisdiction in the world, placed upon or used in connection with the Business of the Company\nor the sale, distribution, promotion and marketing of the Products or of any other goods or services provided or distributed by Company from time to time, and\nincludes, without limitation, "ACT and design" , "Air-Chem Technologies" and "The ACT Monitoring Card System". (m) "Patents" Means all inventions or letters\npatent owned or licensed by or on behalf of the Company, and which are registered with the United States Patent and Trademark Office or the patent office or\nregistry in any jurisdiction in the world or are eligible for registration and/or other protection under the laws and treaties of the United States or of any such\njurisdiction (n) "Products" means any chemical based colorimetric device(s) developed by the Company and/or produced by the Company or licensee(s) or other\nagent(s) of the Company to perform the function of quantitatively or qualitatively measuring and/or indicating chemicals present in the atmosphere. (o)\n"Proprietary Information" Means all of the following materials and information, whether or not patentable or protected by a copyright, trademark, or service mark,\nto which Employee receives or has received access or which Employee develops or has developed as a result of his employment with the Company or during the\nterm of his employment with the Company or through the use of any of the Company's facilities or resources, or those of its affiliates or of its agents or\ndistributors: (i) Production processes, purchasing information, price lists, performance and scheduling information and data, and other materials or information\nrelating to the Business of the Company; (ii) Discoveries, concepts and ideas, and the embodiment(s) thereof, whether or not actually constituting Intellectual\nProperty hereunder, and the nature and results of research and development activities and "know-how" acquired while in the employ of the Company; (iii) Any\nother materials or information related to the Business of the Company which are not generally known to others engaged in similar business or activities; (iv) All\ninventions and ideas which are derived from or related to Employees's access to knowledge of any of the above enumerated materials and information while in\nthe employ of the Company; and (v) Any trade secrets, confidential information or proprietary information which the Company has acquired or may in the future\nacquire from any third party during employee's service to the company, including, without limitation, operating principles, documentation, drawings, programs and\nperformance specifications and results provided to the Company by such third parties pursuant to agreements, understandings and/or acknowledgments to the\neffect that such trade secrets and confidential or proprietary information provided to the Company by such third parties (collectively "Third Party Confidential\nInformation") is the proprietary and/or confidential information of such respective third part and is to be treated by the Company as if such Third Party Confidential\nInformation were the Company's Confidential Information. (p) "Royalty" means two and one-half percent of Gross Sales of the Products described herein. (q)\n"Salary" has the meaning ascribed to it in Section 4 hereof. (r) "Term" means the Initial Term and any Renewal Term, as such terms are defined below. (s) "Trade\nSecrets" means the whole or any portion or phase of any data or information developed, owned or licensed from a third party by the Company to which Employee\nhas gained access as a result of his employment with the Company, including any formula, pattern, compilation, program, device, method technique,\nimprovement, or process that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable\nby a proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) Is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Trade Secrets shall not include any data or information (i) that has been voluntarily disclosed to the public by the Company\nor has become generally known to the public (except when such public disclosure has been made by or through Employee, or by a third person or entity with the\nknowledge of Employee, without authorization from the Company); (ii) that has been independently developed and disclosed to parties other than the Company,\nand the public generally or to Employee with a breach of obligation of confidentiality by any such parties running directly or indirectly to the Company; or (iii) that\notherwise enters the public domain through lawful means. 2. TERMS OF ENGAGEMENT; DUTIES. (a) Capacity. The Company hereby employs Employee as\nResearch Chemist and Employee accepts such employment in such capacity by the Company subject to the terms and conditions hereof. (b) Duties. Employee\nrecognizes and agrees that he shall: (i) devote all of his time, energy and skill during regular business hours to faithfully and industriously develop colormetric\ntechnology and products and other technology and products as directed by the Company exclusively for the use and benefit of the Company (vacation time and\nreasonable sick leave excepted); (ii) diligently follow and implement all policies and decisions communicated to him by the Company, to the best of his ability with\nthe resources provided by the Company, including without limitation, those concerning the production, sale of or further research and development concerning,\nthe Products; and (iii) faithfully and to the best of his ability perform the duties and obligations set forth in this Agreement. 3. TERM; TERMINATION. (a) Initial\nterm. The term of the employment of Employee by the Company hereunder shall commence on the date hereof and shall end on December 31, 2000 (the "Initial\nTerm"). (b) Renewal Terms(s). At the expiration of the Initial Term, this Agreement shall be automatically renewed for separate and successive two (2) year terms\n(individually, a "Renewal Term" and, collectively, "Renewal Terms"); provided, however, the parties may agree in writing to modify the compensation to be paid\npursuant to Section 4 hereof during any such Renewal Term, but shall not be bound to do so; provided, further, this Agreement shall not be automatically\nrenewed if either party shall give to the other party written notice of his or its intent not to renew this Agreement no fewer than thirty (30) days prior to the\nexpiration of the Initial Term or any Renewal Term, as applicable. (c) Voluntary Termination by Employee. Employee may terminate this Agreement at any time\nduring the Term upon no fewer than sixty (60), but no more than ninety (90) days prior written notice to the Company, in which event this Agreement and all of the\nCompany's obligations hereunder shall terminate as of the date contained in such notice except that the Royalty shall be payable as provided as in Section (f)\nhereof. Notwithstanding the foregoing, in the event Employee shall terminate this Agreement as a result of a major illness or disability which prevents him from\nperforming his services hereunder, Employee shall thereafter be entitled to receive Salary (as defined below)for a period of ninety (90) days following the date of\nthe occurrence of such injury or disability, and all of the other terms of this Agreement, including all Benefits payable by the Company on behalf of the Employee,\nshall continue until the end of the Annual Term in which such termination occurs, and all Royalty shall be payable as provided in Section (f) hereof and Section\n4(c). (d) Termination by the Company for cause. This Agreement may be terminated by the Company for Cause at any time during the Term, upon ten (10) days\nprior written notice to Employee, in which event this Agreement and all of the Company's obligations hereunder shall terminate as of the notice date, except that\nthe Royalty shall be payable as provided in Section (f) hereof and Section 4(c). (e) Termination by the Company other Than for Cause. In the event the Company\nterminates this Agreement during the Term for reasons other than for Cause, then, in addition to any other remedy available at law or equity, Employee shall be\nentitled to continue to receive his Salary, plus all Benefits to be paid by the Company on behalf of Employee for a period equal to one month for every full year of\nservice, but not to exceed six months, after such termination occurs, plus the Royalty as provided in Section (f) hereof and Section 4(c). (f) Survival of Royalty\nPayments. The Royalty as defined in Section 4(c) of this Agreement shall continue to be paid to Employee notwithstanding termination for any reason of this\nAgreement until the first occurrence of one of the following events: (i) Employee dies, in which event any Royalty accrued and payable on the date of death shall\nbe paid to Employee's estate, and the Royalty shall not thereafter be payable to any other person or entity; (ii) Employee develops Competing Products for any\nCompeting Business, or any employer, person, or entity other than the Company or its affiliates, in which event the Royalty shall cease being paid to Employee or\nany other person or entity; or (iii) Employee becomes employed by or affiliated with a Competing Business as, without limitation, an employee, officer, director,\nagent, consultant, or advisor, in which capacity Employee develops, or assists the Competing Business or its affiliates, employees, officers, directors, agents,\nconsultants, or advisors in the development of, Competing Products, in which event the Royalty shall cease being paid to Employee or any other person or entity.\n(g) Return of Embodiments of Proprietary Information Upon Termination. All notes, data, reference materials, sketches, drawings, memoranda and records in any\nway relating to any of the Proprietary Information or the Business of the Company and any other physical embodiment of the Proprietary Information shall belong\nexclusively to the Company, and Employee agrees to turn over to the Company the originals and all copies of such materials developed or generated by the\nEmployee or coming into his possession during the term of or as a result of his employment by the Company at the request of the Company or, in the absence of\nsuch a request, upon termination (for whatever reason) of Employees employment with the Company. (h) Survival of Covenants. The Covenants of Employee set\nforth in Section 5 hereof shall survive the termination of this Agreement for any reason whatsoever and shall not be extinguished thereby so long as the Royalty is\npaid in accordance with Section 4(c) and Section 3(f). 4 . COMPENSATION . (a) Salary. During the Term, the Company shall pay Employee an annual salary of\nSixty Thousand and No/100 Dollars ($60,000.00) (the "Salary"), which Salary shall be payable in the manner and at the times which the Company regularly\ncompensates its employees, less applicable state and federal taxes. In addition, but subject to conditions of termination set forth above, the Company shall pay\nEmployee the Bonus and Royalty, as defined herein. If the Bonus outlined in 4(b), when added to the base salary at the end of each year does not equal the cost\nof living based on the U.S . Dept Of Labor cost of living index, the Company shall make an adjustment to the base salary for the following year equal to the cost of\nliving index. (b) Bonus. The Company shall pay Employee a bonus equal to Five Thousand and No/100 Dollars ($5000.00) plus grant a ten-year option to\npurchase Five Thousand (5000) shares of the Company's (EVRM) Common Stock. Such options will be granted at the then market price of the Stock and shall be\nfully vested at issuance. This bonus will be awarded for each additional chemical for which monitoring device(s) is developed by Employee (the "Bonus");\nprovided, however, the chemical must be approved by the Marketing Department of the Company. The monitoring device(s) indicating such chemical will be\nconsidered "developed" for purposes hereof upon the completion of the standard validation protocol and an algorithm defining the devices'(s') performance has\nbeen developed and/or an acceptable color match(s) has been identified in the case of qualitative device(s). Bonus shall be paid to Employee within thirty (30)\ndays after monitoring device has been "developed". (c) Royalty. By the thirtieth (30th) day after the last day of each calendar year quarter (each a "Royalty\nQuarter"), the Company shall pay to Employee a Royalty (The "Royalty") equal to Two and One-Half Percent (2.5%) of Gross Sales of the Products as defined\nherein for the immediate preceding calendar quarter. A written statement of the value and quantity of each colorimetric device sold during the "Royalty Quarter"\nshall be given to Employee with each quarterly payment. In the event that such a written statement is not provided employee shall have the right to examine any\nof Company's State Sales Tax Reports for sale of Products as defined herein. Employee shall also have the right to examine all books of account recording Gross\nSales as defined herein. The parties expressly agree that the payment of the Royalty as described in this Agreement shall survive any termination of this\nAgreement except as provided in Section 3(f) of this agreement. In the event of bankruptcy either voluntary or involuntary, or the non-payment of Royalty\npayments to the Employee by the Company as specified in this Agreement and not cured in ten (10) days after written notification of delinquency by the\nEmployee, all obligations of Employee under this agreement or which could or might be imposed by statutory or common law shall be extinguished. In the event\nthat the technology required to produce the Product is transferred through sale or any other means to any other entity, the Royalty as defined herein shall be paid\nby such entity. (d) Payment on Death. In the event Employee dies during the Term of Agreement, and so long as this Agreement was not the subject of a notice\nof terminating as provided in Section 3 hereof, the Company shall pay to his estate any Salary, Royalty or Bonus that would have been payable up until the end of\nthe month in which Employee dies. (e) Benefits. Employee shall be entitled to participate in any retirement, profit sharing, hospital, medical, disability and life\ninsurance programs regularly maintained by the Company for its employees. (f) Expense Reimbursement. The Company will reimburse Employee for all ordinary,\nreasonable necessary expense incurred by him in carrying out his duties under this Agreement upon Employee's presentation to the Company from time to time\nof an itemized account of the receipts for such expenses in such form as may be required by the Company; provided, however, such reimbursement shall be\nconditioned upon deductibility by the Company of such expenses from gross income for federal tax purposes. (g) Product Liability. The Employee is in no way\nresponsible for any product liability. The Company accepts full and complete responsibility for the Product and any claims made by the Company regarding the\nProduct or its capabilities or performance, and the Company will maintain at all times product liability insurance specifically protecting the employee against any\nlegal claims made against him in his capacity as developer of the Product. The Company will furnish the Employee with evidence of such insurance and notify\nemployee immediately of any cancellation, modification or amendment thereto. 5. COVENANTS OF EMPLOYEE . (a) Ownership of Trade Secrets, Confidential\nInformation, Proprietary Information and Intellectual Property. Employee agrees that the Trade Secrets, Confidential Information, Proprietary Information,\nIntellectual Property, and all physical embodiments thereof (collectively the "Information") to which the employee has come into possession of as a result of or\nduring the term of his employment by the Company; are, and shall at all times remain, the sole and exclusive property of the Company, and that any of the\nInformation produced or developed by him as an employee of the Company shall be considered work for hire under United States law. Employee agrees to (a)\nimmediately disclose or transfer to the Company all Information developed in whole or part by him during the Term, (b) assign to the Company any right, title or\ninterest he may have in such Information, and (c) at the request and expense of the Company, to do all things and sign all documents or instruments reasonably\nnecessary to eliminate any ambiguity as to the ownership of the Company of such Information including, without limitation, providing to the Company his full\ncooperation in any litigation or other proceedings to establish, protect or obtain such rights while he is in the employee of the Company. (b) Non-Disclosure or Use\nof Trade Secrets or Confidential Information. During the term of his employment with the Company and at any and all times following the termination of such\nemployment, Employee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Trade Secret or Confidential Information of which\nhe came into possession as a result of his employment by the Company for any purpose including, without limitation, the solicitation of existing company\ncustomers of which the Employee is aware, except in the course of performing duties assigned to him by the Company. (c) Non-Disclosure or Use of Proprietary\nInformation. During the term of his employment with the Company and for a period of one (1) year after termination (for whatever reason) of such employment,\nEmployee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Proprietary Information for any purpose. (d) No Solicitation.\nEmployee covenants and agrees that, while he is employed by the Company and for a period of two (2) years following termination (for any reason) of such\nemployment, he will not, directly or indirectly, solicit, induce or hire away, or assist any third person or entity in inducing, diverting, soliciting or hiring away, (i) any\nemployee of the Company, whether such employee is employed pursuant to a written contract, is for a determined period or is at will, or (ii) any person or entity\nwhich, at the time of termination of employment, was a client or customer of the Company or with whom or which, at the time of termination of employment, the\nCompany was negotiating regarding the sale or distribution of the Company's services or products. (e) Return of Company Property. Employee covenants and\nagrees that, upon termination (for any reason) of this Agreement, he will return or turn over to the Company all physical embodiments of the Information including\nwithout limitation, all notes, data reference materials sketches, drawings, memoranda, records, laboratory equipment, chemicals, tools, implements, computers,\ndrives, diskettes, tapes, renditions, models, mock-ups, prototypes, evaluations, measurements, and tests, and all originals copies or other physical embodiments\nthereof, which in any way relate to any of the Information or to the Business of the Company which belong to the Company or were developed or generated while\nin the employment of the Company. (f) Additional Provisions. Employee recognizes and agrees: (i) that the covenants and agreements contained in Section 5 of\nthis Agreement are of the essence of this Agreement; (ii) that each of such covenants is reasonable and necessary to protect and preserve the interests and\nproperties of the Company and the Business of the Company; (iii) that loss and damage may be suffered by the Company should Employee breach any of such\ncovenants or agreements; (iv) that each of such covenants and agreements is separate, distinct and severable from the other and remaining provisions of this\nAgreement. 6. MISCELLANEOUS PROVISIONS . (a) Binding Effect. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto\nand their respective heirs, successors , assigns and legal representatives. (b) Severability. The provisions of this Agreement shall be deemed severable and the\ninvalidity or the unenforceability of any one or more of the provisions hereof shall not affect the validity or enforceability of the other provisions hereof. (d) Notices.\nAll notices and other communications which are required or permitted hereunder shall be in writing and shall be sufficient if delivered by hand or mailed by\ncertified mail return receipt requested, postage prepaid, to the addresses set forth below or to such other address as the parties shall specify by notice in writing\nto the other party. All such notices and communications made by mail shall be deemed to have been received on the date of actual delivery or on the fifth (5th)\nbusiness day after the mailing thereof, whichever is earlier: Company: Envirometrics Products Company 1019 Bankton Dr. Charleston, SC 29406 Employee:\nThomas A. Wilkie 1370 Lamont Norwood Rd. Pittsboro, North Carolina 27312 (e) Entire Agreement. This Agreement contains the entire agreement between the\nparties hereto and supersedes and terminates any and all prior written agreements and understandings between the parties hereto with respect to the\nemployment of, or work performed in the capacity of an independent contractor by the Employee or payments to Employee by the Company for any reason or\nwork product, including, without limitation, the Employee Invention Assignment Agreement and the Employee Non-Disclosure and Non-Competition Agreement,\nboth Agreements executed on or about March 13, 1992 , and any subsequent amendments, modifications and understandings related thereto. (f) Amendments\nand Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement\nof any such modification or amendment is sought, Either party hereto may by an instrument in writing waive compliance by the other party of any other provision\nof this Agreement on the part of such other party. The waiver by any party of a breach of any term or provision shall not be construed as a waiver of any\nsubsequent breach. (g) Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not be deemed to control\nor affect the meaning or construction of any provision. The Company is a corporation in good standing under the laws of South Carolina and is duly authorized to\ncarry on the business presently conducted by it and its signers of this Agreement are properly authorized to execute, deliver and perform this Agreement on\nbehalf of the Company and that this Agreement constitutes a valid and legally binding obligation of the Company. IN WITNESS WHEREOF, the parties hereto\nhave executed this Agreement to be effective as of the date and year first written above. ATTEST The Company: Envirometrics Products Company\n__________________________\n__________________________________________\nSecretary By: Walter H. Elliott, III , President [CORPORATE SEAL]\nEMPLOYEE: __________________________________________ Thomas A. Wilkie
4dca42c1cd7e821ce47a4733959b06d3.pdf	effective_date jurisdiction party term	SCHEDULE D\nCOPY OF EXECUTED CONFIDENTIALITY AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement is made as of March 22, 2011 (“the Effective Date) between AmerisourceBergen Specialty Group,\nInc., with offices at 3101 Gaylord Parkway, Frisco, TX 75034 and Corcept Therapeutics, Inc., with offices at 149 Commonwealth Drive, Menlo\nPark, CA 94025.\nBackground\nThe parties are interested in evaluating a potential venture relating to warehousing, distribution and other commercial services (the “Venture”).\nIn order to facilitate such evaluation, either party (“Disclosing Party”) may disclose to the other party (“Recipient”) certain of its confidential or\nproprietary information.\n1. Definition of Confidential Information. “Confidential Information” means any confidential or proprietary information that is disclosed or\nmade available by Disclosing Party to Recipient, whether in writing or other tangible form, orally or otherwise. Confidential Information includes\n(a) information about processes, systems, strategic plans, business plans, operating data, financial information and other information and (b) any\nanalysis, compilation, study or other material prepared by Recipient (regardless of the form in which it is maintained) that contains or otherwise\nreflects any information disclosed or made available by Disclosing Party to Recipient.\n2. Exclusions from Confidential Information. Confidential Information does not include information that:\n(a) at the time of disclosure to Recipient, is generally available to the public;\n(b) after disclosure to Recipient, becomes generally available to the public other than as a result of a breach of these provisions by\nRecipient (including any of its affiliates);\n(c) Recipient can establish was already in its possession at the time the information was received from Disclosing Party if its source was\nnot known by Recipient to be bound to an obligation of confidentiality with respect to such information;\n(d) Recipient receives from a third party if its source was not known by Recipient to be bound to an obligation of confidentiality with\nrespect to such information; or\n(e) Recipient can establish was developed independently by Recipient without use, directly or indirectly, of any Confidential\nInformation.\n3. Limitations on Disclosure and Use. Confidential Information must be kept strictly confidential and may not be disclosed or used by\nRecipient except as specifically permitted by this Agreement or as specifically authorized in advance in writing by Disclosing Party. Recipient may\nnot take any action that causes Confidential Information to lose its confidential and proprietary nature or fail to take any reasonable action necessary\nto prevent any Confidential Information from losing its confidential and proprietary nature. Recipient will limit access to Confidential Information to\nits employees, officers, directors or other authorized representatives (or those of its affiliates) who (a) need to know such Confidential Information to\nparticipate in evaluating the Venture and (b) are obligated to\nPage 21\nRecipient to maintain Confidential Information under terms and conditions at least as stringent as those under this Agreement. Recipient will inform\nall such persons of the confidential and proprietary nature of Confidential Information and will take all reasonable steps to ensure they do not breach\ntheir confidentiality obligations, including taking any steps Recipient would take to protect its own similarly confidential information. Recipient will\nbe responsible for any breach of confidentiality obligations by such persons.\n4. Ownership. All Confidential Information and deviations of Confidential Information will remain the sole and exclusive property of\nDisclosing Party and, except as provided, no license or other right to it will be implied by this Agreement. If Recipient has prepared any analysis,\ncompilation, study or other material (regardless of form) that contains or otherwise reflects any Confidential Information, then such material will be\nowned solely by Disclosing Party and treated as its Confidential Information under this Agreement.\n5. No Representations or Warranties. Recipient acknowledges that Disclosing Party makes no representations of warranties, express or\nimplied, as to the accuracy or completeness of Confidential Information and Recipient agrees that Disclosing Party will have no liability for any\nerrors or omissions in such information.\n6. Return or Destruction of Confidential Information. Upon Disclosing Party’s request, Recipient will promptly deliver to Disclosing Party\nor destroy all Confidential Information (including material that contains or otherwise reflects Confidential Information) in its custody or control and\nwill deliver it to Disclosing Party within ten (10) business days after such request or deliver a written statement from a corporate officer certifying it\nhas destroyed all of Disclosing Party’s Confidential Information. Unless authorized in writing by Disclosing Party Recipient will not retain any copy,\nextract or summary of Confidential Information (including material that contains or otherwise reflects Confidential Information). The obligation to\ndestroy or return shall not apply to Confidential Information that is stored on back-up tapes and similar media that are not readily accessible to\nRecipient.\n7. Equitable Relief. Each party acknowledges that, when it is Recipient, money damages would not be a sufficient remedy for Disclosing\nParty in the event of any breach of these provisions and that Disclosing Party is entitled to seek specific performance and injunctive or other\nequitable relief as a remedy for any such breach. Recipient further agrees to waive any requirement for the posting of any bond in connection with\nany such remedy. Such remedy will be in addition to any other available remedies at law or in equity.\n8. Disclosures Required by Law. If Recipient is required by law to disclose any Confidential Information, Recipient will give Disclosing\nParty prompt notice and will use all reasonable means to obtain confidential treatment for any Confidential Information that it is required disclose\nbefore making any such disclosure. If Recipient cannot assure confidential treatment and it has exhausted all reasonable efforts to do so, Recipient\nmay disclose Confidential Information to the extent it is required by law to disclose the information it discloses. Notwithstanding the foregoing,\nDisclosing Party may request Recipient to take additional steps to seek confidential treatment before Recipient discloses Confidential Information\neven though Recipient has otherwise exhausted all reasonable efforts to do so. In such event, Recipient will undertake such additional steps at\nDisclosing Party’s expense.\n9. Term of this Agreement. This Agreement covers Confidential Information that is disclosed by Disclosing Party to Recipient until the first\nanniversary of the Effective Date. Recipient’s obligation to protect Confidential Information disclosed during such one-year period expires three\nyears from the Effective Date.\nPage 22\n10. Subsequent Agreement. If the patties pursue the Venture, they anticipate entering into a definitive agreement that will set forth their\nrespective obligations. Such agreement may incorporate this Agreement by reference, may supplement or modify it or may supersede it.\n11. Governing Law; Jurisdiction; Attorneys’ Fees. Internal law of the State of Texas applies to this Agreement. Each of the parties agrees\nthat any legal or equitable action relating to this Agreement shall be brought, and each of the parties consents to personal jurlsdictlon1 in any court of\ngeneral jurisdiction in Collin County, Texas, and waives any objection which it may have to the laying of venue of any such suit, action or\nproceeding in such court. The successful party in any legal action arising our of this Agreement may recover all costs, including reasonable\nattorneys’ fees.\n12. Notices. Any notice required or permitted under this Agreement will be in writing and will be effective upon actual receipt. Notices shall\nbe sent to the addresses set forth in the introductory paragraph of this Agreement, and a copy of any notice to AmerisourceBergen Specialty Group,\nInc. shall also be sent to AmerisourceBergen Specially Group, Inc., Attn: Group Counsel, lN-El86, 3101 Gaylord Parkway, Frisco, TX 75034.\n13. Interpretation. This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes any prior\nagreement, written or oral. This Agreement will bind and benefit the parties and their successors. This Agreement may be assigned by\nAmerisourceBergen Specialty Group, Inc. to any affiliate hut may not be otherwise assigned without the consent of the other party, which consent\nwill not be unreasonably withheld. For purposes of Agreement, “affiliate” means any company or person that directly or indirectly controls, is\ncontrolled by or under common control with the referenced party, as the case may be. If any provision is invalid, validity of remaining provisions\nwill not be affected. This Agreement may not be amended or modified except in a writing signed by both paties. Any waiver or delay by any party in\nenforcing this Agreement will not deprive it of the right to take appropriate action at a later time or due to another breach. Captions in this\nAgreement are intended for convenience of reference only. Words, regardless of the number and gender specifically used, will be construed to\ninclude any other number, singular or plural, and any gender, masculine, feminine, or neuter, as the context requires. “And” includes “or.” “Or” is\ndisjunctive but not necessarily exclusive. “Including” means “including but not limited to.” This Agreement may be executed in counterparts. Any\nprovision of this Agreement may survive this Agreement’s expiration or earlier termination if its context shows that the parties intended it to survive.\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of its Effective Date.\nAmerisourceBergen Specialty Group, Inc.\nCorcept Therapeutics, Inc.\nBy: /s/ James D. Frary\nBy: /s/ Joseph K. Belanoff\nTitle: James Frary\nTitle: Joseph K. Belanoff, M.D.\nTitle: President, ABSG\nTitle: Chief Executive Officer\nPage 23	SCHEDULE D\nCOPY OF EXECUTED CONFIDENTIALITY AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement is made as of March 22, 2011 (“the Effective Date) between AmerisourceBergen Specialty Group,\nInc., with offices at 3101 Gaylord Parkway, Frisco, TX 75034 and Corcept Therapeutics, Inc., with offices at 149 Commonwealth Drive, Menlo\nPark, CA 94025.\nBackground\nThe parties are interested in evaluating a potential venture relating to warehousing, distribution and other commercial services (the “Venture”).\nIn order to facilitate such evaluation, either party (“Disclosing Party”) may disclose to the other party (“Recipient”) certain of its confidential or\nproprietary information.\n1. Definition of Confidential Information. “Confidential Information” means any confidential or proprietary information that is disclosed or\nmade available by Disclosing Party to Recipient, whether in writing or other tangible form, orally or otherwise. Confidential Information includes\n(a) information about processes, systems, strategic plans, business plans, operating data, financial information and other information and (b) any\nanalysis, compilation, study or other material prepared by Recipient (regardless of the form in which it is maintained) that contains or otherwise\nreflects any information disclosed or made available by Disclosing Party to Recipient.\n2. Exclusions from Confidential Information. Confidential Information does not include information that:\n(a) at the time of disclosure to Recipient, is generally available to the public;\n(b) after disclosure to Recipient, becomes generally available to the public other than as a result of a breach of these provisions by\nRecipient (including any of its affiliates);\n(c) Recipient can establish was already in its possession at the time the information was received from Disclosing Party if its source was\nnot known by Recipient to be bound to an obligation of confidentiality with respect to such information;\n(d) Recipient receives from a third party if its source was not known by Recipient to be bound to an obligation of confidentiality with\nrespect to such information; or\n(e) Recipient can establish was developed independently by Recipient without use, directly or indirectly, of any Confidential\nInformation.\n3. Limitations on Disclosure and Use. Confidential Information must be kept strictly confidential and may not be disclosed or used by\nRecipient except as specifically permitted by this Agreement or as specifically authorized in advance in writing by Disclosing Party. Recipient may\nnot take any action that causes Confidential Information to lose its confidential and proprietary nature or fail to take any reasonable action necessary\nto prevent any Confidential Information from losing its confidential and proprietary nature. Recipient will limit access to Confidential Information to\nits employees, officers, directors or other authorized representatives (or those of its affiliates) who (a) need to know such Confidential Information to\nparticipate in evaluating the Venture and (b) are obligated to\nPage 21\nRecipient to maintain Confidential Information under terms and conditions at least as stringent as those under this Agreement. Recipient will inform\nall such persons of the confidential and proprietary nature of Confidential Information and will take all reasonable steps to ensure they do not breach\ntheir confidentiality obligations, including taking any steps Recipient would take to protect its own similarly confidential information. Recipient will\nbe responsible for any breach of confidentiality obligations by such persons.\n4. Ownership. All Confidential Information and deviations of Confidential Information will remain the sole and exclusive property of\nDisclosing Party and, except as provided, no license or other right to it will be implied by this Agreement. If Recipient has prepared any analysis,\ncompilation, study or other material (regardless of form) that contains or otherwise reflects any Confidential Information, then such material will be\nowned solely by Disclosing Party and treated as its Confidential Information under this Agreement.\n5. No Representations or Warranties. Recipient acknowledges that Disclosing Party makes no representations of warranties, express or\nimplied, as to the accuracy or completeness of Confidential Information and Recipient agrees that Disclosing Party will have no liability for any\nerrors or omissions in such information.\n6. Return or Destruction of Confidential Information. Upon Disclosing Party’s request, Recipient will promptly deliver to Disclosing Party\nor destroy all Confidential Information (including material that contains or otherwise reflects Confidential Information) in its custody or control and\nwill deliver it to Disclosing Party within ten (10) business days after such request or deliver a written statement from a corporate officer certifying it\nhas destroyed all of Disclosing Party’s Confidential Information. Unless authorized in writing by Disclosing Party Recipient will not retain any copy,\nextract or summary of Confidential Information (including material that contains or otherwise reflects Confidential Information). The obligation to\ndestroy or return shall not apply to Confidential Information that is stored on back-up tapes and similar media that are not readily accessible to\nRecipient.\n7. Equitable Relief. Each party acknowledges that, when it is Recipient, money damages would not be a sufficient remedy for Disclosing\nParty in the event of any breach of these provisions and that Disclosing Party is entitled to seek specific performance and injunctive or other\nequitable relief as a remedy for any such breach. Recipient further agrees to waive any requirement for the posting of any bond in connection with\nany such remedy. Such remedy will be in addition to any other available remedies at law or in equity.\n8. Disclosures Required by Law. If Recipient is required by law to disclose any Confidential Information, Recipient will give Disclosing\nParty prompt notice and will use all reasonable means to obtain confidential treatment for any Confidential Information that it is required disclose\nbefore making any such disclosure. If Recipient cannot assure confidential treatment and it has exhausted all reasonable efforts to do so, Recipient\nmay disclose Confidential Information to the extent it is required by law to disclose the information it discloses. Notwithstanding the foregoing,\nDisclosing Party may request Recipient to take additional steps to seek confidential treatment before Recipient discloses Confidential Information\neven though Recipient has otherwise exhausted all reasonable efforts to do so. In such event, Recipient will undertake such additional steps at\nDisclosing Party’s expense.\n9. Term of this Agreement. This Agreement covers Confidential Information that is disclosed by Disclosing Party to Recipient until the first\nanniversary of the Effective Date. Recipient’s obligation to protect Confidential Information disclosed during such one-year period expires three\nyears from the Effective Date.\nPage 22\n10. Subsequent Agreement. If the patties pursue the Venture, they anticipate entering into a definitive agreement that will set forth their\nrespective obligations. Such agreement may incorporate this Agreement by reference, may supplement or modify it or may supersede it.\n11. Governing Law; Jurisdiction; Attorneys’ Fees. Internal law of the State of Texas applies to this Agreement. Each of the parties agrees\nthat any legal or equitable action relating to this Agreement shall be brought, and each of the parties consents to personal jurlsdictlon1 in any court of\ngeneral jurisdiction in Collin County, Texas, and waives any objection which it may have to the laying of venue of any such suit, action or\nproceeding in such court. The successful party in any legal action arising our of this Agreement may recover all costs, including reasonable\nattorneys’ fees.\n12. Notices. Any notice required or permitted under this Agreement will be in writing and will be effective upon actual receipt. Notices shall\nbe sent to the addresses set forth in the introductory paragraph of this Agreement, and a copy of any notice to AmerisourceBergen Specialty Group,\nInc. shall also be sent to AmerisourceBergen Specially Group, Inc., Attn: Group Counsel, IN-E186, 3101 Gaylord Parkway, Frisco, TX 75034.\n13. Interpretation. This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes any prior\nagreement, written or oral. This Agreement will bind and benefit the parties and their successors. This Agreement may be assigned by\nAmerisourceBergen Specialty Group, Inc. to any affiliate hut may not be otherwise assigned without the consent of the other party, which consent\nwill not be unreasonably withheld. For purposes of Agreement, “affiliate” means any company or person that directly or indirectly controls, is\ncontrolled by or under common control with the referenced party, as the case may be. If any provision is invalid, validity of remaining provisions\nwill not be affected. This Agreement may not be amended or modified except in a writing signed by both paties. Any waiver or delay by any party in\nenforcing this Agreement will not deprive it of the right to take appropriate action at a later time or due to another breach. Captions in this\nAgreement are intended for convenience of reference only. Words, regardless of the number and gender specifically used, will be construed to\ninclude any other number, singular or plural, and any gender, masculine, feminine, or neuter, as the context requires. “And” includes “or.” “Or” is\ndisjunctive but not necessarily exclusive. “Including” means “including but not limited to.” This Agreement may be executed in counterparts. Any\nprovision of this Agreement may survive this Agreement’s expiration or earlier termination if its context shows that the parties intended it to survive.\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of its Effective Date.\nAmerisourceBergen Specialty Group, Inc. Corcept Therapeutics, Inc.\nBy: /s/James D. Frary By: /s/Joseph K. Belanoff\nTitle: James Frary Title: Joseph K. Belanoff, M.D.\nTitle: President, ABSG Title: Chief Executive Officer\nPage 23	SCHEDULE D\nCOPY OF EXECUTED CONFIDENTIALITY AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement is made as of March 22, 2011 ("the Effective Date) between AmerisourceBergen Specialty Group,\nInc., with offices at 3101 Gaylord Parkway, Frisco, TX 75034 and Corcept Therapeutics, Inc., with offices at 149 Commonwealth Drive, Menlo\nPark, CA 94025.\nBackground\nThe parties are interested in evaluating a potential venture relating to warehousing, distribution and other commercial services (the "Venture").\nIn order to facilitate such evaluation, either party ("Disclosing Party") may disclose to the other party ("Recipient") certain of its confidential or\nproprietary information.\n1. Definition of Confidential Information. "Confidential Information" means any confidential or proprietary information that is disclosed or\nmade available by Disclosing Party to Recipient, whether in writing or other tangible form, orally or otherwise. Confidential Information includes\n(a) information about processes, systems, strategic plans, business plans, operating data, financial information and other information and (b) any\nanalysis, compilation, study or other material prepared by Recipient (regardless of the form in which it is maintained) that contains or otherwise\nreflects any information disclosed or made available by Disclosing Party to Recipient.\n2. Exclusions from Confidential Information. Confidential Information does not include information that:\n(a) at the time of disclosure to Recipient, is generally available to the public;\n(b) after disclosure to Recipient, becomes generally available to the public other than as a result of a breach of these provisions by\nRecipient (including any of its affiliates);\n(c) Recipient can establish was already in its possession at the time the information was received from Disclosing Party if its source was\nnot known by Recipient to be bound to an obligation of confidentiality with respect to such information;\n(d) Recipient receives from a third party if its source was not known by Recipient to be bound to an obligation of confidentiality with\nrespect to such information; or\n(e) Recipient can establish was developed independently by Recipient without use, directly or indirectly, of any Confidential\nInformation.\n3. Limitations on Disclosure and Use. Confidential Information must be kept strictly confidential and may not be disclosed or used by\nRecipient except as specifically permitted by this Agreement or as specifically authorized in advance in writing by Disclosing Party. Recipient may\nnot take any action that causes Confidential Information to lose its confidential and proprietary nature or fail to take any reasonable action necessary\nto prevent any Confidential Information from losing its confidential and proprietary nature. Recipient will limit access to Confidential Information to\nits employees, officers, directors or other authorized representatives (or those of its affiliates) who (a) need to know such Confidential Information to\nparticipate in evaluating the Venture and (b) are obligated to\nPage 21\nRecipient to maintain Confidential Information under terms and conditions at least as stringent as those under this Agreement. Recipient will inform\nall such persons of the confidential and proprietary nature of Confidential Information and will take all reasonable steps to ensure they do not breach\ntheir confidentiality obligations, including taking any steps Recipient would take to protect its own similarly confidential information. Recipient\nwill\nbe responsible for any breach of confidentiality obligations by such persons.\n4.\nOwnership. All Confidential Information and deviations of Confidential Information will remain the sole and exclusive property\nof\nDisclosing Party and, except as provided, no license or other right to it will be implied by this Agreement. If Recipient has prepared any analysis,\ncompilation, study or other material (regardless of form) that contains or otherwise reflects any Confidential Information, then such material will\nbe\nowned solely by Disclosing Party and treated as its Confidential Information under this Agreement.\n5. No Representations or Warranties. Recipient acknowledges that Disclosing Party makes no representations of warranties, express or\nimplied, as to the accuracy or completeness of Confidential Information and Recipient agrees that Disclosing Party will have no liability for any\nerrors or omissions in such information.\n6. Return or Destruction of Confidential Information. Upon Disclosing Party's request, Recipient will promptly deliver to Disclosing Party\nor destroy all Confidential Information (including material that contains or otherwise reflects Confidential Information) in its custody or control and\nwill deliver it to Disclosing Party within ten (10) business days after such request or deliver a written statement from a corporate officer certifying\nit\nhas\ndestroyed all of Disclosing Party's Confidential Information. Unless authorized in writing by Disclosing Party Recipient will not retain any copy,\nextract or summary of Confidential Information (including material that contains or otherwise reflects Confidential Information). The obligation\nto\ndestroy or return shall not apply to Confidential Information that is stored on back-up tapes and similar media that are not readily accessible to\nRecipient.\n7. Equitable Relief. Each party acknowledges that, when it is Recipient, money damages would not be a sufficient remedy for Disclosing\nParty in the event of any breach of these provisions and that Disclosing Party is entitled to seek specific performance and injunctive or other\nequitable relief as a remedy for any such breach. Recipient further agrees to waive any requirement for the posting of any bond in connection with\nany such remedy. Such remedy will be in addition to any other available remedies at law or in equity.\n8. Disclosures Required by Law. If Recipient is required by law to disclose any Confidential Information, Recipient will give Disclosing\nParty prompt notice and will use all reasonable means to obtain confidential treatment for any Confidential Information that it is required disclose\nbefore making any such disclosure. If Recipient cannot assure confidential treatment and it has exhausted all reasonable efforts to do so, Recipient\nmay disclose Confidential Information to the extent it is required by law to disclose the information it discloses. Notwithstanding the foregoing,\nDisclosing Party may request Recipient to take additional steps to seek confidential treatment before Recipient discloses Confidential Information\neven though Recipient has otherwise exhausted all reasonable efforts to do so. In such event, Recipient will undertake such additional steps at\nDisclosing Party's expense.\n9. Term of this Agreement. This Agreement covers Confidential Information that is disclosed by Disclosing Party to Recipient until the first\nanniversary of the Effective Date. Recipient's obligation to protect Confidential Information disclosed during such one-year period expires three\nyears from the Effective Date.\nPage 22\n10. Subsequent Agreement. If the patties pursue the Venture, they anticipate entering into a definitive agreement that will set forth their\nrespective obligations. Such agreement may incorporate this Agreement by reference, may supplement or modify it or may supersede it.\n11. Governing Law; Jurisdiction; Attorneys' Fees. Internal law of the State of Texas applies to this Agreement. Each of the parties agrees\nthat any legal or equitable action relating to this Agreement shall be brought, and each of the parties consents to personal jurlsdictlon1 in any court of\ngeneral jurisdiction in Collin County, Texas, and waives any objection which it may have to the laying of venue of any such suit, action or\nproceeding in such court. The successful party in any legal action arising our of this Agreement may recover all costs, including reasonable\nattorneys' fees.\n12.\nNotices. Any notice required or permitted under this Agreement will be in writing and will be effective upon actual receipt. Notices shall\nbe sent to the addresses set forth in the introductory paragraph of this Agreement, and a copy of any notice to AmerisourceBergen Specialty Group,\nInc. shall also be sent to AmerisourceBergen Specially Group, Inc., Attn: Group Counsel, IN-E186, 3101 Gaylord Parkway, Frisco, TX 75034.\n13 Interpretation. This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes any prior\nagreement, written or oral. This Agreement will bind and benefit the parties and their successors. This Agreement may be assigned by\nAmerisourceBerger Specialty Group, Inc. to any affiliate hut may not be otherwise assigned without the consent of the other party, which consent\nwill not be unreasonably withheld. For purposes of Agreement, "affiliate" means any company or person that directly or indirectly controls,\nis\ncontrolled by or under common control with the referenced party, as the case may be. If any provision is invalid, validity of remaining provisions\nwill not be affected. This Agreement may not be amended or modified except in a writing signed by both paties. Any waiver or delay by any party in\nenforcing this Agreement will not deprive it of the right to take appropriate action at a later time or due to another breach. Captions in this\nAgreement\nare intended for convenience of reference only. Words, regardless of the number and gender specifically used, will be construed\nto\ninclude any other number, singular or plural, and any gender, masculine, feminine, or neuter, as the context requires. "And" includes "or." "Or" is\ndisjunctive but not necessarily exclusive. "Including" means "including but not limited to." This Agreement may be executed in counterparts. Any\nprovision of this Agreement may survive this Agreement's expiration or earlier termination if its context shows that the parties intended it to survive.\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of its Effective Date.\nAmerisourceBergen Specialty Group, Inc.\nCorcept Therapeutics, Inc.\nBy:\n/s/ James D. Frary\nBy:\n/s/ Joseph K. Belanoff\nTitle: James Frary\nTitle: Joseph K. Belanoff, M.D.\nTitle: President, ABSG\nTitle: Chief Executive Officer\nPage 23	SCHEDULE D\nCOPY OF EXECUTED CONFIDENTIALITY AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement is made as of March 22, 2011 (“the Effective Date) between AmerisourceBergen Specialty Group,\nInc., with offices at 3101 Gaylord Parkway, Frisco, TX 75034 and Corcept Therapeutics, Inc., with offices at 149 Commonwealth Drive, Menlo\nPark, CA 94025.\nBackground\nThe parties are interested in evaluating a potential venture relating to warehousing, distribution and other commercial services (the “Venture”).\nIn order to facilitate such evaluation, either party (“Disclosing Party”) may disclose to the other party (“Recipient”) certain of its confidential or\nproprietary information.\n1. Definition of Confidential Information. “Confidential Information” means any confidential or proprietary information that is disclosed or\nmade available by Disclosing Party to Recipient, whether in writing or other tangible form, orally or otherwise. Confidential Information includes\n(a) information about processes, systems, strategic plans, business plans, operating data, financial information and other information and (b) any\nanalysis, compilation, study or other material prepared by Recipient (regardless of the form in which it is maintained) that contains or otherwise\nreflects any information disclosed or made available by Disclosing Party to Recipient.\n2. Exclusions from Confidential Information. Confidential Information does not include information that:\n(a) at the time of disclosure to Recipient, is generally available to the public;\n(b) after disclosure to Recipient, becomes generally available to the public other than as a result of a breach of these provisions by\nRecipient (including any of its affiliates);\n(c) Recipient can establish was already in its possession at the time the information was received from Disclosing Party if its source was\nnot known by Recipient to be bound to an obligation of confidentiality with respect to such information;\n(d) Recipient receives from a third party if its source was not known by Recipient to be bound to an obligation of confidentiality with\nrespect to such information; or\n(e) Recipient can establish was developed independently by Recipient without use, directly or indirectly, of any Confidential\nInformation.\n3. Limitations on Disclosure and Use. Confidential Information must be kept strictly confidential and may not be disclosed or used by\nRecipient except as specifically permitted by this Agreement or as specifically authorized in advance in writing by Disclosing Party. Recipient may\nnot take any action that causes Confidential Information to lose its confidential and proprietary nature or fail to take any reasonable action necessary\nto prevent any Confidential Information from losing its confidential and proprietary nature. Recipient will limit access to Confidential Information to\nits employees, officers, directors or other authorized representatives (or those of its affiliates) who (a) need to know such Confidential Information to\nparticipate in evaluating the Venture and (b) are obligated to\nPage 21\nRecipient to maintain Confidential Information under terms and conditions at least as stringent as those under this Agreement. Recipient will inform\nall such persons of the confidential and proprietary nature of Confidential Information and will take all reasonable steps to ensure they do not breach\ntheir confidentiality obligations, including taking any steps Recipient would take to protect its own similarly confidential information. Recipient will\nbe responsible for any breach of confidentiality obligations by such persons.\n4. Ownership. All Confidential Information and deviations of Confidential Information will remain the sole and exclusive property of\nDisclosing Party and, except as provided, no license or other right to it will be implied by this Agreement. If Recipient has prepared any analysis,\ncompilation, study or other material (regardless of form) that contains or otherwise reflects any Confidential Information, then such material will be\nowned solely by Disclosing Party and treated as its Confidential Information under this Agreement.\n5. No Representations or Warranties. Recipient acknowledges that Disclosing Party makes no representations of warranties, express or\nimplied, as to the accuracy or completeness of Confidential Information and Recipient agrees that Disclosing Party will have no liability for any\nerrors or omissions in such information.\n6. Return or Destruction of Confidential Information. Upon Disclosing Party’s request, Recipient will promptly deliver to Disclosing Party\nor destroy all Confidential Information (including material that contains or otherwise reflects Confidential Information) in its custody or control and\nwill deliver it to Disclosing Party within ten (10) business days after such request or deliver a written statement from a corporate officer certifying it\nhas destroyed all of Disclosing Party’s Confidential Information. Unless authorized in writing by Disclosing Party Recipient will not retain any copy,\nextract or summary of Confidential Information (including material that contains or otherwise reflects Confidential Information). The obligation to\ndestroy or return shall not apply to Confidential Information that is stored on back-up tapes and similar media that are not readily accessible to\nRecipient.\n7. Equitable Relief. Each party acknowledges that, when it is Recipient, money damages would not be a sufficient remedy for Disclosing\nParty in the event of any breach of these provisions and that Disclosing Party is entitled to seek specific performance and injunctive or other\nequitable relief as a remedy for any such breach. Recipient further agrees to waive any requirement for the posting of any bond in connection with\nany such remedy. Such remedy will be in addition to any other available remedies at law or in equity.\n8. Disclosures Required by Law. If Recipient is required by law to disclose any Confidential Information, Recipient will give Disclosing\nParty prompt notice and will use all reasonable means to obtain confidential treatment for any Confidential Information that it is required disclose\nbefore making any such disclosure. If Recipient cannot assure confidential treatment and it has exhausted all reasonable efforts to do so, Recipient\nmay disclose Confidential Information to the extent it is required by law to disclose the information it discloses. Notwithstanding the foregoing,\nDisclosing Party may request Recipient to take additional steps to seek confidential treatment before Recipient discloses Confidential Information\neven though Recipient has otherwise exhausted all reasonable efforts to do so. In such event, Recipient will undertake such additional steps at\nDisclosing Party’s expense.\n9. Term of this Agreement. This Agreement covers Confidential Information that is disclosed by Disclosing Party to Recipient until the first\nanniversary of the Effective Date. Recipient’s obligation to protect Confidential Information disclosed during such one-year period expires three\nyears from the Effective Date.\nPage 22\n10. Subsequent Agreement. If the patties pursue the Venture, they anticipate entering into a definitive agreement that will set forth their\nrespective obligations. Such agreement may incorporate this Agreement by reference, may supplement or modify it or may supersede it.\n11. Governing Law; Jurisdiction; Attorneys’ Fees. Internal law of the State of Texas applies to this Agreement. Each of the parties agrees\nthat any legal or equitable action relating to this Agreement shall be brought, and each of the parties consents to personal jurlsdictlon1 in any court of\ngeneral jurisdiction in Collin County, Texas, and waives any objection which it may have to the laying of venue of any such suit, action or\nproceeding in such court. The successful party in any legal action arising our of this Agreement may recover all costs, including reasonable\nattorneys’ fees.\n12. Notices. Any notice required or permitted under this Agreement will be in writing and will be effective upon actual receipt. Notices shall\nbe sent to the addresses set forth in the introductory paragraph of this Agreement, and a copy of any notice to AmerisourceBergen Specialty Group,\nInc. shall also be sent to AmerisourceBergen Specially Group, Inc., Attn: Group Counsel, lN-El86, 3101 Gaylord Parkway, Frisco, TX 75034.\n13. Interpretation. This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes any prior\nagreement, written or oral. This Agreement will bind and benefit the parties and their successors. This Agreement may be assigned by\nAmerisourceBergen Specialty Group, Inc. to any affiliate hut may not be otherwise assigned without the consent of the other party, which consent\nwill not be unreasonably withheld. For purposes of Agreement, “affiliate” means any company or person that directly or indirectly controls, is\ncontrolled by or under common control with the referenced party, as the case may be. If any provision is invalid, validity of remaining provisions\nwill not be affected. This Agreement may not be amended or modified except in a writing signed by both paties. Any waiver or delay by any party in\nenforcing this Agreement will not deprive it of the right to take appropriate action at a later time or due to another breach. Captions in this\nAgreement are intended for convenience of reference only. Words, regardless of the number and gender specifically used, will be construed to\ninclude any other number, singular or plural, and any gender, masculine, feminine, or neuter, as the context requires. “And” includes “or.” “Or” is\ndisjunctive but not necessarily exclusive. “Including” means “including but not limited to.” This Agreement may be executed in counterparts. Any\nprovision of this Agreement may survive this Agreement’s expiration or earlier termination if its context shows that the parties intended it to survive.\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of its Effective Date.\nAmerisourceBergen Specialty Group, Inc.\nCorcept Therapeutics, Inc.\nBy: /s/ James D. Frary\nBy: /s/ Joseph K. Belanoff\nTitle: James Frary\nTitle: Joseph K. Belanoff, M.D.\nTitle: President, ABSG\nTitle: Chief Executive Officer\nPage 23
4dd5eca6802e0f03214db3dfd4881638.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 9 d272786dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT (the “Agreement”)\nIn connection with a possible transaction, Landry’s, Inc. (the “Recipient”) and Morton’s Restaurant Group Inc. (the “Company”), agree as\nfollows:\n1. Evaluation Material. In connection with a possible negotiated transaction by the Company (the “Transaction”), the Company and its\nrepresentatives, including Jefferies & Company, Inc. (“Jefferies”), may furnish the Recipient, in writing and orally, certain information concerning\nthe current and possible future business, operations and finances of the Company and other related information, including, but not limited to,\ninformation related to the Transaction or other potential future capital raising plans of the Company (any such information, the “Evaluation\nMaterial”). The Evaluation Material may contain, and the fact that a Transaction is being contemplated may constitute, material, nonpublic\ninformation within the meaning of the U.S. federal securities laws. The Recipient acknowledges that the U.S . federal securities laws and other laws\nprohibit any person who has any such material, non-public information about a company from purchasing or selling securities of that company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n2. Limited Use of Evaluation Material. The Recipient agrees to use the Evaluation Material solely in connection with its consideration of a\nTransaction and for no other purpose.\n3. Confidentiality. The Recipient agrees to keep the Evaluation Material confidential and agrees to not disclose it to any other person, other\nthan those of its directors, officers, employees, partners, agents and advisors (such persons, the “Representatives”) who need to know such\ninformation to assist the Recipient in determining whether to participate in a Transaction; provided that, the Recipient may disclose, such Evaluation\nMaterial (a) if it is or becomes generally available to the public without any violation of this Agreement on the part of the Recipient or anyone to\nwhom it discloses Evaluation Material; (b) if it becomes available to the Recipient on a non-confidential basis from a source which is not known to\nRecipient, after reasonable inquiry, to be prohibited from disclosing any portion of the Evaluation Material to the Recipient; (c) as required by law or\nregulation, provided that the Recipient will provide the Company with prompt prior notice so that the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement; and (d) which was or is independently developed by Recipient\nwithout using the Evaluation Material or violating its obligations hereunder. As a condition to the furnishing of Evaluation Material to the\nRepresentatives of Recipient, Recipient shall cause its Representatives to treat such information in accordance with the provisions of this Agreement\nand to perform or to comply with the obligations of Recipient with respect to the Evaluation Material as contemplated hereby. Recipient agrees that\nit will be fully responsible for any breach of any of the provisions of this Agreement by its Representatives.\nIn considering a Transaction and reviewing the Evaluation Material, the Recipient confirms that it is acting solely on its own behalf and not as\npart of a group with any third parties. The Recipient will not, directly or indirectly, enter into any agreement, arrangement or understanding, or any\ndiscussions that may lead to the same, with any person regarding a possible transaction involving the Company. The Recipient and its\nRepresentatives will not\ndisclose the fact that the Evaluation Material has been made available to them or that discussions or negotiations are taking place between the parties\nconcerning a Transaction or any of the terms, conditions or other facts with respect thereto (including the status thereof).\n4. Standstill. Recipient hereby agrees that for a period of one year from the date hereof (the “Standstill Period”) Recipient and its affiliates\nwill not (and neither Recipient nor its affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting\nalone or in concert with others, unless specifically invited on an unsolicited basis in writing in advance by the Company: (i) acquire or agree, offer,\nseek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3\nunder the Exchange Act) of any of the assets or businesses of the Company or any securities issued by the Company, or any option or other right to\nacquire such ownership (including from a third party); (ii) seek or propose to influence or control the management or the policies of the Company or\nto obtain representation on the board of directors (or any committee thereof) of the Company, or solicit or participate in the solicitation of, any\nproxies or consents with respect to any securities of the Company; (iii) seek or propose to have called, or cause to be called, any meeting of\nstockholders of the Company; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any\nof the foregoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the\nforegoing activities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to the Company or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with\nany of the foregoing; or (viii) seek to have the Company amend or waive any provision of this paragraph. Recipient agrees to advise the Company\npromptly of any inquiry or proposal made to it with respect to any of the foregoing. The Recipient will not prohibit or in any way discourage any\nlenders or financial advisors from providing financing or advice to any other bidders or potential bidders except for one financial advisor that the\nRecipient retains. Recipient further agrees that, during the Standstill Period, neither it nor any of its affiliates will, without the written consent of the\nCompany, take any initiative or other action with respect to the Company or any of the subsidiaries of the Company that could require the Company\nto make a public announcement regarding (i) such initiative or other action, (ii) any of the activities, events or circumstances referred to in the\npreceding sentences of this paragraph, (iii) the possibility of the Transaction, any similar transaction or the pursuit of strategic alternatives or any\nstrategic alternative by the Company or (iv) the possibility of Recipient or any other person acquiring control of the Company whether by means of a\nbusiness combination or otherwise. Recipient represents to the Company that as of the date of this Agreement, it, together with its affiliates, owns\napproximately 850,000 shares of common stock of the Company. The obligations set forth in this paragraph are referred to in this Agreement as the\n“Standstill”.\nNotwithstanding anything in the previous paragraph to the contrary, if, on or after the date of this Agreement, any person or group of persons\n(other than Recipient) enters into a definitive agreement with the Company providing for: (a) a merger, share exchange, business combination or\nsimilar extraordinary transaction as a result of which the persons possessing, immediately prior to the consummation of such transaction, beneficial\nownership of the voting securities of the Company entitled to vote generally in elections of directors, would cease to possess, immediately after\nconsummation of such transaction, beneficial ownership of voting\n2\nsecurities entitling them to exercise at least fifty percent (50%) of the total voting power of all outstanding securities entitled to vote generally in\nelections of directors of the Company (or, if not the Company, the surviving person resulting from such transaction); (b) a sale, exchange or lease of\nall or substantially all of the assets of the Company and its subsidiaries (determined on a consolidated basis); or (c) the acquisition (by purchase,\nmerger or otherwise) by any person (including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act and the\nrules promulgated thereunder) of beneficial ownership of voting securities of the Company entitling that person to exercise fifty percent (50%) or\nmore of the total voting power of all outstanding securities entitled to vote generally in elections of directors of the Company (the transactions\ndescribed in clauses (a), (b) and (c) of this paragraph being each hereinafter referred to as a “Third-Party Agreement”); then, the Standstill shall not\nrestrict the Recipient or its affiliates from making a private acquisition proposal solely to the Board of Directors of the Company; provided, however,\nthat the Standstill again shall be fully applicable in accordance with the terms of the prior paragraph upon the termination of the Third-Party\nAgreement. For purposes of this Agreement, “beneficial ownership” shall be determined in accordance with Rule 13d-3 under the Exchange Act.\n5. Process. The Recipient acknowledges that (i) the Company shall conduct the process for a possible Transaction as it in its sole discretion\nshall determine (including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to\nthe Recipient or any other person), (ii) any procedures relating to a Transaction may be changed at any time without notice to the Recipient or any\nother person, (iii) the Company shall have the right, in its sole discretion, to reject or accept any potential buyer, proposal or offer, and to terminate\nany discussions and negotiations, at any time and for any or no reason, (iv) neither the Recipient nor any of its Representatives shall have any claims\nwhatsoever against the Company or any of its affiliates or Representatives arising out of or relating to such actions and (v) except for exercising the\nrights of a shareholder of the Company, neither the Recipient nor any of its Representatives shall challenge any Transaction on the ground that any\nsuch actions were wrongful, discriminatory, unfair or otherwise violated any duty owed the Recipient or any such Representative. Unless and until a\ndefinitive agreement between the Company or its stockholder(s) and the Recipient with respect to any Transaction has been executed and delivered,\nneither the Company nor any of its stockholders or affiliates will be under any legal obligation to the Recipient of any kind whatsoever with respect\nto such Transaction.\n6. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of the Company are a key component to the\nsuccess of the Company and that the preservation of the employee base of the Company is critical to, among other things, the prospects of the\nCompany. Therefore, Recipient agrees that, for a period of eighteen months from the date hereof, neither it nor any of its affiliates who have received\nEvaluation Material shall hire or solicit any individual who is an officer or management-level employee of the Company or any of its subsidiaries, as\nof the date hereof or at any time hereafter and prior to the termination of discussions by the Parties with respect to the Transaction, to leave his or her\nemployment with the Company or any of its subsidiaries or in any way interfere with the employment relationship between the Company or any of\nits subsidiaries and any of their respective employees; provided that the foregoing non-solicitation and non-hiring obligations shall not apply to (1)\ngeneralized advertisement of employment opportunities including in trade\n3\nor industry publications (if not focused specifically on or directed in any way at the employees or an employee of the Company or any of its\nsubsidiaries) or (2) with respect to any management-level employee who does not have a title of vice president or more senior with the Company or\nany of its subsidiaries, only such employees that are not introduced to recipient in consideration of a Transaction.\n7. Return or Destruction of Evaluation Material. In the event Recipient determines it does not wish to proceed with the Transaction,\nRecipient will promptly advise the Company of that decision. In that case or upon the Company’s request at any time, Recipient agrees to, and to\ncause its Representatives to, either return or destroy (and certify in writing to such destruction) any Evaluation Material; provided that, Recipient\nmay retain such Evaluation Material as required by applicable law or regulation. Any Evaluation Material that is not returned or destroyed,\nincluding, without limitation, any oral Evaluation Material, remains subject to the confidentiality obligations and use restrictions set forth in this\nAgreement.\n8. No Representation or Warranty. Recipient acknowledges that neither the Company, Jefferies nor any of their respective representatives\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material (and only those\nrepresentations and warranties of the Company which are made in a final definitive agreement when, as and if executed by the Company will have\nany legal effect). None of the Company, Jefferies or any of their respective representatives shall have any liability as a result of the review or use by\nRecipient or its Representatives of the Evaluation Material or for any errors therein or omissions therefrom.\n9. Acknowledgement of Recipient.\na. Recipient acknowledges that (i) it is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with\nrespect to investments such as the Transaction, (ii) it will be responsible for conducting its own due diligence investigation with respect to the\nCompany and any Transaction, (iii) if it (including any investment fund or funds it manages or advises) acquires any securities of the Company, it\nwill be doing so based on the results of its own due diligence investigation of the Company, (iv) if it determines to pursue an investment in a\nTransaction, it will negotiate the Transaction directly with the Company, and Jefferies will not be responsible for the ultimate success of any such\ninvestment and (v) the decision to invest in a Transaction will involve a significant degree of risk, including a risk of total loss of such investment.\nb. Accordingly, to the fullest extent permitted by law, Recipient releases Jefferies, its employees, officers and affiliates from any liability\nwith respect to Recipient’s participation, or proposed participation, in the Transaction. This Section 9 shall survive any termination of this\nAgreement. Jefferies has introduced Recipient to the Company in reliance on the Recipient’s understanding and agreement to this Section 9.\nc. Each of Recipient and the Company agree that Jefferies, and its employees, officers and affiliates are intended third party beneficiaries\nof this Agreement.\n4\n10. Integration. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements between the parties with respect to it and may be amended only by a written execution of all parties.\n11. Remedies. The parties acknowledge that money damages would not be a sufficient remedy for any breach of this Agreement and that each\nparty is entitled to equitable relief, including, without limitation, injunctive relief, as a remedy for any such breach, without the requirement of\nposting a bond or other security. Such remedy is not the exclusive remedy for breach of this Agreement but is in addition to all other remedies\navailable at law or equity. In the event of litigation regarding the subject matter of this Agreement, the prevailing party in a final, non-appealable\norder of a court of competent jurisdiction shall be entitled to recover its reasonable expenses and attorneys’ fees in connection with obtaining such\norder.\n12. Diligence Process. Recipient and its Representatives shall not initiate or maintain contact with any stockholder, director, officer, employee,\npartner, manager, member, agent, supplier, franchisee or lender of the Company with respect to or relating in any way to the Transaction, or in which\nthe Transaction is discussed or referred to directly or indirectly, except as specifically authorized in writing by the Company and as provided in this\nsection. Recipient hereby agrees to submit or direct to the designee or designees of the Company all (a) communications regarding the Transaction,\n(b) requests for additional information, (c) requests for facility tours or management or employee meetings or conversations and (d) discussions or\nquestions regarding procedures.\n13. Miscellaneous.\na. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without\nregard to its conflicts of laws provisions. The exclusive venue for any actions arising directly or indirectly from this Agreement shall be the\nappropriate state or federal court sitting in the City of New York, in the State of New York.\nb. No Obligation. It is expressly understood by the parties hereto that, other than for the matters specifically agreed to herein, this\nAgreement is not intended to, and does not, constitute an agreement to consummate the Transaction or enter into a definitive agreement, and both\nparties acknowledge and agree that unless and until a written definitive agreement concerning the Transaction has been duly executed, neither party\nshall have any obligation to the other with respect to any Transaction, whether by virtue of this Agreement or any other written or oral expression\nwith respect to the Transaction or otherwise.\nc. Headings. The descriptive headings contained in this Agreement are for reference only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\nd. Binding Effect. This Agreement is binding upon the parties and their respective successors and assigns.\ne. Counterparts. This Agreement may be executed in separate original counterparts, each of which shall be deemed to be an original but\nall of which together shall constitute but one and the same Agreement. All exhibits and attachments to this Agreement are\n5\nhereby incorporated by reference herein and made a part hereof as though set forth at length hereinabove.\n14. Termination. Except for Section 9, which shall survive any termination of this Agreement, this Agreement will terminate on the date two\nyears from the date hereof; provided that, such termination shall not relieve any party from liability in respect of breaches by such party prior to such\ntermination.\n15. WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY\nWAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR\nRELATING TO THIS AGREEMENT, THE MATTERS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES IN THE\nNEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT.\nThe parties have executed this Agreement as of July 14, 2011\nCOMPANY:\nRECIPIENT:\nMorton’s Restaurant Group, Inc.\nLandry’s, Inc.\n/s/ Scott D. Levin\n/s/ Steven L. Scheinthal\nName: Scott D. Levin\nName: Steven L. Scheinthal\nTitle: SVP and General Counsel\nTitle: EVP & GC\nBy executing this Agreement, Mr. Tilman J. Fertitta and his affiliates hereby agree to be bound by the terms hereof.\n/s/ Tilman J. Fertitta by Steven L. Scheinthal w/permission\nTilman J. Fertitta\n6	EX-99.(D)(3) 9 d272786dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT (the “Agreement”)\nIn connection with a possible transaction, Landry’s, Inc. (the “Recipient”) and Morton’s Restaurant Group Inc. (the “Company”), agree as\nfollows:\n1. Evaluation Material. In connection with a possible negotiated transaction by the Company (the “Transaction”), the Company and its\nrepresentatives, including Jefferies & Company, Inc. (“Jefferies”), may furnish the Recipient, in writing and orally, certain information concerning\nthe current and possible future business, operations and finances of the Company and other related information, including, but not limited to,\ninformation related to the Transaction or other potential future capital raising plans of the Company (any such information, the “Evaluation\nMaterial”). The Evaluation Material may contain, and the fact that a Transaction is being contemplated may constitute, material, nonpublic\ninformation within the meaning of the U.S. federal securities laws. The Recipient acknowledges that the U.S. federal securities laws and other laws\nprohibit any person who has any such material, non-public information about a company from purchasing or selling securities of that company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n2. Limited Use of Evaluation Material. The Recipient agrees to use the Evaluation Material solely in connection with its consideration of a\nTransaction and for no other purpose.\n3. Confidentiality. The Recipient agrees to keep the Evaluation Material confidential and agrees to not disclose it to any other person, other\nthan those of its directors, officers, employees, partners, agents and advisors (such persons, the “Representatives”) who need to know such\ninformation to assist the Recipient in determining whether to participate in a Transaction; provided that, the Recipient may disclose, such Evaluation\nMaterial (a) if it is or becomes generally available to the public without any violation of this Agreement on the part of the Recipient or anyone to\nwhom it discloses Evaluation Material; (b) if it becomes available to the Recipient on a non-confidential basis from a source which is not known to\nRecipient, after reasonable inquiry, to be prohibited from disclosing any portion of the Evaluation Material to the Recipient; (c) as required by law or\nregulation, provided that the Recipient will provide the Company with prompt prior notice so that the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement; and (d) which was or is independently developed by Recipient\nwithout using the Evaluation Material or violating its obligations hereunder. As a condition to the furnishing of Evaluation Material to the\nRepresentatives of Recipient, Recipient shall cause its Representatives to treat such information in accordance with the provisions of this Agreement\nand to perform or to comply with the obligations of Recipient with respect to the Evaluation Material as contemplated hereby. Recipient agrees that\nit will be fully responsible for any breach of any of the provisions of this Agreement by its Representatives.\n \nIn considering a Transaction and reviewing the Evaluation Material, the Recipient confirms that it is acting solely on its own behalf and not as\npart of a group with any third parties. The Recipient will not, directly or indirectly, enter into any agreement, arrangement or understanding, or any\ndiscussions that may lead to the same, with any person regarding a possible transaction involving the Company. The Recipient and its\nRepresentatives will not\ndisclose the fact that the Evaluation Material has been made available to them or that discussions or negotiations are taking place between the parties\nconcerning a Transaction or any of the terms, conditions or other facts with respect thereto (including the status thereof).\n4. Standstill. Recipient hereby agrees that for a period of one year from the date hereof (the “Standstill Period”) Recipient and its affiliates\nwill not (and neither Recipient nor its affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting\nalone or in concert with others, unless specifically invited on an unsolicited basis in writing in advance by the Company: (i) acquire or agree, offer,\nseek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3\nunder the Exchange Act) of any of the assets or businesses of the Company or any securities issued by the Company, or any option or other right to\nacquire such ownership (including from a third party); (ii) seek or propose to influence or control the management or the policies of the Company or\nto obtain representation on the board of directors (or any committee thereof) of the Company, or solicit or participate in the solicitation of, any\nproxies or consents with respect to any securities of the Company; (iii) seek or propose to have called, or cause to be called, any meeting of\nstockholders of the Company; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any\nof the foregoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the\nforegoing activities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to the Company or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with\nany of the foregoing; or (viii) seek to have the Company amend or waive any provision of this paragraph. Recipient agrees to advise the Company\npromptly of any inquiry or proposal made to it with respect to any of the foregoing. The Recipient will not prohibit or in any way discourage any\nlenders or financial advisors from providing financing or advice to any other bidders or potential bidders except for one financial advisor that the\nRecipient retains. Recipient further agrees that, during the Standstill Period, neither it nor any of its affiliates will, without the written consent of the\nCompany, take any initiative or other action with respect to the Company or any of the subsidiaries of the Company that could require the Company\nto make a public announcement regarding (i) such initiative or other action, (ii) any of the activities, events or circumstances referred to in the\npreceding sentences of this paragraph, (iii) the possibility of the Transaction, any similar transaction or the pursuit of strategic alternatives or any\nstrategic alternative by the Company or (iv) the possibility of Recipient or any other person acquiring control of the Company whether by means of a\nbusiness combination or otherwise. Recipient represents to the Company that as of the date of this Agreement, it, together with its affiliates, owns\napproximately 850,000 shares of common stock of the Company. The obligations set forth in this paragraph are referred to in this Agreement as the\n“Standstill”.\nNotwithstanding anything in the previous paragraph to the contrary, if, on or after the date of this Agreement, any person or group of persons\n(other than Recipient) enters into a definitive agreement with the Company providing for: (a) a merger, share exchange, business combination or\nsimilar extraordinary transaction as a result of which the persons possessing, immediately prior to the consummation of such transaction, beneficial\nownership of the voting securities of the Company entitled to vote generally in elections of directors, would cease to possess, immediately after\nconsummation of such transaction, beneficial ownership of voting\nsecurities entitling them to exercise at least fifty percent (50%) of the total voting power of all outstanding securities entitled to vote generally in\nelections of directors of the Company (or, if not the Company, the surviving person resulting from such transaction); (b) a sale, exchange or lease of\nall or substantially all of the assets of the Company and its subsidiaries (determined on a consolidated basis); or (c) the acquisition (by purchase,\nmerger or otherwise) by any person (including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act and the\nrules promulgated thereunder) of beneficial ownership of voting securities of the Company entitling that person to exercise fifty percent (50%) or\nmore of the total voting power of all outstanding securities entitled to vote generally in elections of directors of the Company (the transactions\ndescribed in clauses (a), (b) and (c) of this paragraph being each hereinafter referred to as a “Third-Party Agreement”); then, the Standstill shall not\nrestrict the Recipient or its affiliates from making a private acquisition proposal solely to the Board of Directors of the Company; provided, however,\nthat the Standstill again shall be fully applicable in accordance with the terms of the prior paragraph upon the termination of the Third-Party\nAgreement. For purposes of this Agreement, “beneficial ownership” shall be determined in accordance with Rule 13d-3 under the Exchange Act.\n5. Process. The Recipient acknowledges that (i) the Company shall conduct the process for a possible Transaction as it in its sole discretion\nshall determine (including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to\nthe Recipient or any other person), (ii) any procedures relating to a Transaction may be changed at any time without notice to the Recipient or any\nother person, (iii) the Company shall have the right, in its sole discretion, to reject or accept any potential buyer, proposal or offer, and to terminate\nany discussions and negotiations, at any time and for any or no reason, (iv) neither the Recipient nor any of its Representatives shall have any claims\nwhatsoever against the Company or any of its affiliates or Representatives arising out of or relating to such actions and (v) except for exercising the\nrights of a shareholder of the Company, neither the Recipient nor any of its Representatives shall challenge any Transaction on the ground that any\nsuch actions were wrongful, discriminatory, unfair or otherwise violated any duty owed the Recipient or any such Representative. Unless and until a\ndefinitive agreement between the Company or its stockholder(s) and the Recipient with respect to any Transaction has been executed and delivered,\nneither the Company nor any of its stockholders or affiliates will be under any legal obligation to the Recipient of any kind whatsoever with respect\nto such Transaction.\n6. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of the Company are a key component to the\nsuccess of the Company and that the preservation of the employee base of the Company is critical to, among other things, the prospects of the\nCompany. Therefore, Recipient agrees that, for a period of eighteen months from the date hereof, neither it nor any of its affiliates who have received\nEvaluation Material shall hire or solicit any individual who is an officer or management-level employee of the Company or any of its subsidiaries, as\nof the date hereof or at any time hereafter and prior to the termination of discussions by the Parties with respect to the Transaction, to leave his or her\nemployment with the Company or any of its subsidiaries or in any way interfere with the employment relationship between the Company or any of\nits subsidiaries and any of their respective employees; provided that the foregoing non-solicitation and non-hiring obligations shall not apply to (1)\ngeneralized advertisement of employment opportunities including in trade\n3\nor industry publications (if not focused specifically on or directed in any way at the employees or an employee of the Company or any of its\nsubsidiaries) or (2) with respect to any management-level employee who does not have a title of vice president or more senior with the Company or\nany of its subsidiaries, only such employees that are not introduced to recipient in consideration of a Transaction.\n7. Return or Destruction of Evaluation Material. In the event Recipient determines it does not wish to proceed with the Transaction,\nRecipient will promptly advise the Company of that decision. In that case or upon the Company’s request at any time, Recipient agrees to, and to\ncause its Representatives to, either return or destroy (and certify in writing to such destruction) any Evaluation Material; provided that, Recipient\nmay retain such Evaluation Material as required by applicable law or regulation. Any Evaluation Material that is not returned or destroyed,\nincluding, without limitation, any oral Evaluation Material, remains subject to the confidentiality obligations and use restrictions set forth in this\nAgreement.\n8. No Representation or Warranty. Recipient acknowledges that neither the Company, Jefferies nor any of their respective representatives\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material (and only those\nrepresentations and warranties of the Company which are made in a final definitive agreement when, as and if executed by the Company will have\nany legal effect). None of the Company, Jefferies or any of their respective representatives shall have any liability as a result of the review or use by\nRecipient or its Representatives of the Evaluation Material or for any errors therein or omissions therefrom.\n9. Acknowledgement of Recipient.\na. Recipient acknowledges that (i) it is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with\nrespect to investments such as the Transaction, (ii) it will be responsible for conducting its own due diligence investigation with respect to the\nCompany and any Transaction, (iii) if it (including any investment fund or funds it manages or advises) acquires any securities of the Company, it\nwill be doing so based on the results of its own due diligence investigation of the Company, (iv) if it determines to pursue an investment in a\nTransaction, it will negotiate the Transaction directly with the Company, and Jefferies will not be responsible for the ultimate success of any such\ninvestment and (v) the decision to invest in a Transaction will involve a significant degree of risk, including a risk of total loss of such investment.\nb. Accordingly, to the fullest extent permitted by law, Recipient releases Jefferies, its employees, officers and affiliates from any liability\nwith respect to Recipient’s participation, or proposed participation, in the Transaction. This Section 9 shall survive any termination of this\nAgreement. Jefferies has introduced Recipient to the Company in reliance on the Recipient’s understanding and agreement to this Section 9.\nc. Each of Recipient and the Company agree that Jefferies, and its employees, officers and affiliates are intended third party beneficiaries\nof this Agreement.\n10. Integration. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements between the parties with respect to it and may be amended only by a written execution of all parties.\n11. Remedies. The parties acknowledge that money damages would not be a sufficient remedy for any breach of this Agreement and that each\nparty is entitled to equitable relief, including, without limitation, injunctive relief, as a remedy for any such breach, without the requirement of\nposting a bond or other security. Such remedy is not the exclusive remedy for breach of this Agreement but is in addition to all other remedies\navailable at law or equity. In the event of litigation regarding the subject matter of this Agreement, the prevailing party in a final, non-appealable\norder of a court of competent jurisdiction shall be entitled to recover its reasonable expenses and attorneys’ fees in connection with obtaining such\norder.\n12. Diligence Process. Recipient and its Representatives shall not initiate or maintain contact with any stockholder, director, officer, employee,\npartner, manager, member, agent, supplier, franchisee or lender of the Company with respect to or relating in any way to the Transaction, or in which\nthe Transaction is discussed or referred to directly or indirectly, except as specifically authorized in writing by the Company and as provided in this\nsection. Recipient hereby agrees to submit or direct to the designee or designees of the Company all (a) communications regarding the Transaction,\n(b) requests for additional information, (c) requests for facility tours or management or employee meetings or conversations and (d) discussions or\nquestions regarding procedures.\n13. Miscellaneous.\na. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without\nregard to its conflicts of laws provisions. The exclusive venue for any actions arising directly or indirectly from this Agreement shall be the\nappropriate state or federal court sitting in the City of New York, in the State of New York.\nb. No Obligation. It is expressly understood by the parties hereto that, other than for the matters specifically agreed to herein, this\nAgreement is not intended to, and does not, constitute an agreement to consummate the Transaction or enter into a definitive agreement, and both\nparties acknowledge and agree that unless and until a written definitive agreement concerning the Transaction has been duly executed, neither party\nshall have any obligation to the other with respect to any Transaction, whether by virtue of this Agreement or any other written or oral expression\nwith respect to the Transaction or otherwise.\nc. Headings. The descriptive headings contained in this Agreement are for reference only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\nd. Binding Effect. This Agreement is binding upon the parties and their respective successors and assigns.\ne. Counterparts. This Agreement may be executed in separate original counterparts, each of which shall be deemed to be an original but\nall of which together shall constitute but one and the same Agreement. All exhibits and attachments to this Agreement are\n5\nhereby incorporated by reference herein and made a part hereof as though set forth at length hereinabove.\n14. Termination. Except for Section 9, which shall survive any termination of this Agreement, this Agreement will terminate on the date two\nyears from the date hereof; provided that, such termination shall not relieve any party from liability in respect of breaches by such party prior to such\ntermination.\n15. WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY\nWAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR\nRELATING TO THIS AGREEMENT, THE MATTERS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES IN THE\nNEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT.\nThe parties have executed this Agreement as of July 14, 2011\nCOMPANY: RECIPIENT:\nMorton’s Restaurant Group, Inc. Landry’s, Inc.\n/s/ Scott D. Levin /s/ Steven L. Scheinthal\nName: Scott D. Levin Name: Steven L. Scheinthal\nTitle: SVP and General Counsel Title: EVP & GC\nBy executing this Agreement, Mr. Tilman J. Fertitta and his affiliates hereby agree to be bound by the terms hereof.\n/s/ Tilman J. Fertitta by Steven L. Scheinthal w/permission\nTilman J. Fertitta	EX-99.(D)(3) 9 d272786dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT (the "Agreement")\nIn connection with a possible transaction, Landry's, Inc. (the "Recipient") and Morton's Restaurant Group Inc. (the "Company"), agree as\nfollows:\n1. Evaluation Material. In connection with a possible negotiated transaction by the Company (the "Transaction"), the Company and its\nrepresentatives, including Jefferies & Company, Inc. ("Jefferies"), may furnish the Recipient, in writing and orally, certain information concerning\nthe current and possible future business, operations and finances of the Company and other related information, including, but not limited to,\ninformation related to the Transaction or other potential future capital raising plans of the Company (any such information, the "Evaluation\nMaterial"). The Evaluation Material may contain, and the fact that a Transaction is being contemplated may constitute, material, nonpublic\ninformation within the meaning of the U.S. federal securities laws. The Recipient acknowledges that the U.S. federal securities laws and other laws\nprohibit any person who has any such material, non-public information about a company from purchasing or selling securities of that company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n2. Limited Use of Evaluation Material. The Recipient agrees to use the Evaluation Material solely in connection with its consideration of a\nTransaction and for no other purpose.\n3. Confidentiality. The Recipient agrees to keep the Evaluation Material confidential and agrees to not disclose it to any other person, other\nthan those of its directors, officers, employees, partners, agents and advisors (such persons, the "Representatives") who need to know such\ninformation to assist the Recipient in determining whether to participate in a Transaction; provided that, the Recipient may disclose, such Evaluation\nMaterial (a) if it is or becomes generally available to the public without any violation of this Agreement on the part of the Recipient or anyone to\nwhom it discloses Evaluation Material; (b) if it becomes available to the Recipient on a non-confidential basis from a source which is not known to\nRecipient, after reasonable inquiry, to be prohibited from disclosing any portion of the Evaluation Material to the Recipient; (c) as required by law\nor\nregulation, provided that the Recipient will provide the Company with prompt prior notice so that the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement; and (d) which was or is independently developed by Recipient\nwithout using the Evaluation Material or violating its obligations hereunder. As a condition to the furnishing of Evaluation Material to the\nRepresentatives of Recipient, Recipient shall cause its Representatives to treat such information in accordance with the provisions of this Agreemen\nand to perform or to comply with the obligations of Recipient with respect to the Evaluation Material as contemplated hereby. Recipient agrees that\nit will be fully responsible for any breach of any of the provisions of this Agreement by its Representatives.\nIn considering a Transaction and reviewing the Evaluation Material, the Recipient confirms that it is acting solely on its own behalf and not as\npart of a group with any third parties. The Recipient will not, directly or indirectly, enter into any agreement, arrangement or understanding, or any\ndiscussions that may lead to the same, with any person regarding a possible transaction involving the Company. The Recipient and its\nRepresentatives will not\ndisclose the fact that the Evaluation Material has been made available to them or that discussions or negotiations are taking place between the parties\nconcerning a Transaction or any of the terms, conditions or other facts with respect thereto (including the status thereof).\n4. Standstill. Recipient hereby agrees that for a period of one year from the date hereof (the "Standstill Period") Recipient and its affiliates\nwill not (and neither Recipient nor its affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting\nalone\nor in concert with others, unless specifically invited on an unsolicited basis in writing in advance by the Company:\n(i)\nacquire\nor\nagree,\noffer\nseek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3\nunder the Exchange Act) of any of the assets or businesses of the Company or any securities issued by the Company, or any option or other right to\nacquire such ownership (including from a third party); (ii) seek or propose to influence or control the management or the policies of the Company\nor\nto obtain representation on the board of directors (or any committee thereof) of the Company, or solicit or participate in the solicitation of, any\nproxies or consents with respect to any securities of the Company; (iii) seek or propose to have called, or cause to be called, any meeting of\nstockholders of the Company; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any\nof the foregoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the\nforegoing activities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to the Company or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with\nany of the foregoing; or (viii) seek to have the Company amend or waive any provision of this paragraph. Recipient agrees to advise the Company\npromptly of any inquiry or proposal made to it with respect to any of the foregoing. The Recipient will not prohibit or in any way discourage any\nlenders or financial advisors from providing financing or advice to any other bidders or potential bidders except for one financial advisor that the\nRecipient retains. Recipient further agrees that, during the Standstill Period, neither it nor any of its affiliates will, without the written consent of the\nCompany, take any initiative or other action with respect to the Company or any of the subsidiaries of the Company that could require the Company\nto make a public announcement regarding (i) such initiative or other action, (ii) any of the activities, events or circumstances referred to in\nthe\npreceding sentences of this paragraph, (iii) the possibility of the Transaction, any similar transaction or the pursuit of strategic alternatives or any\nstrategic alternative by the Company or (iv) the possibility of Recipient or any other person acquiring control of the Company whether by means of a\nbusiness combination or otherwise. Recipient represents to the Company that as of the date of this Agreement, it, together with its affiliates, owns\napproximately 850,000 shares of common stock of the Company. The obligations set forth in this paragraph are referred to in this Agreement as the\n"Standstill".\nNotwithstanding anything in the previous paragraph to the contrary, if, on or after the date of this Agreement, any person or group of persons\n(other than Recipient) enters into a definitive agreement with the Company providing for: (a) a merger, share exchange, business combination or\nsimilar extraordinary transaction as a result of which the persons possessing, immediately prior to the consummation of such transaction, beneficial\nownership of the voting securities of the Company entitled to vote generally in elections of directors, would cease to possess, immediately after\nconsummation of such transaction, beneficial ownership of voting\n2\nsecurities entitling them to exercise at least fifty percent (50%) of the total voting power of all outstanding securities entitled to vote generally in\nelections of directors of the Company (or, if not the Company, the surviving person resulting from such transaction); (b) a sale, exchange or lease of\nall or substantially all of the assets of the Company and its subsidiaries (determined on a consolidated basis); or (c) the acquisition (by purchase,\nmerger or otherwise) by any person (including any syndicate or group deemed to be a "person" under Section 13(d)(3) of the Exchange Act and the\nrules promulgated thereunder) of beneficial ownership of voting securities of the Company entitling that person to exercise fifty percent (50%)\nor\nmore of the total voting power of all outstanding securities entitled to vote generally in elections of directors of the Company (the transactions\ndescribed in clauses (a), (b) and (c) of this paragraph being each hereinafter referred to as a "Third-Party Agreement"); then, the Standstill shall\nnot\nrestrict the Recipient or its affiliates from making a private acquisition proposal solely to the Board of Directors of the Company; provided, however,\nthat the Standstill again shall be fully applicable in accordance with the terms of the prior paragraph upon the termination of the Third-Party\nAgreement. For purposes of this Agreement, "beneficial ownership" shall be determined in accordance with Rule 13d-3 under the Exchange Act.\n5. Process. The Recipient acknowledges that (i) the Company shall conduct the process for a possible Transaction as it in its sole discretion\nshall determine (including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to\nthe Recipient or any other person), (ii) any procedures relating to a Transaction may be changed at any time without notice to the Recipient or any\nother person, (iii) the Company shall have the right, in its sole discretion, to reject or accept any potential buyer, proposal or offer, and to terminate\nany discussions and negotiations, at any time and for any or no reason, (iv) neither the Recipient nor any of its Representatives shall have any claims\nwhatsoever against the Company or any of its affiliates or Representatives arising out of or relating to such actions and (v) except for exercising\nthe\nrights of a shareholder of the Company, neither the Recipient nor any of its Representatives shall challenge any Transaction on the ground that\nany\nsuch actions were wrongful, discriminatory, unfair or otherwise violated any duty owed the Recipient or any such Representative. Unless and until a\ndefinitive agreement between the Company or its stockholder(s) and the Recipient with respect to any Transaction has been executed and delivered,\nneither the Company nor any of its stockholders or affiliates will be under any legal obligation to the Recipient of any kind whatsoever with respect\nto such Transaction.\n6. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of the Company are a key component to the\nsuccess of the Company and that the preservation of the employee base of the Company is critical to, among other things, the prospects of the\nCompany. Therefore, Recipient agrees that, for a period of eighteen months from the date hereof, neither it nor any of its affiliates who have received\nEvaluation Material shall hire or solicit any individual who is an officer or management-level employee of the Company or any of its subsidiaries, as\nof the date hereof or at any time hereafter and prior to the termination of discussions by the Parties with respect to the Transaction, to leave his or her\nemployment with the Company or any of its subsidiaries or in any way interfere with the employment relationship between the Company or any of\nits subsidiaries and any of their respective employees; provided that the foregoing non-solicitation and non-hiring obligations shall not apply to (1)\ngeneralized advertisement of employment opportunities including in trade\n3\nor industry publications (if not focused specifically on or directed in any way at the employees or an employee of the Company or any of its\nsubsidiaries) or (2) with respect to any management-level employee who does not have a title of vice president or more senior with the Company or\nany of its subsidiaries, only such employees that are not introduced to recipient in consideration of a Transaction.\n7. Return or Destruction of Evaluation Material. In the event Recipient determines it does not wish to proceed with the Transaction,\nRecipient will promptly advise the Company of that decision. In that case or upon the Company's request at any time, Recipient\nagrees\nto,\nand\nto\ncause its Representatives to, either return or destroy (and certify in writing to such destruction) any Evaluation Material; provided that, Recipient\nmay retain such Evaluation Material as required by applicable law or regulation. Any Evaluation Material that is not returned or destroyed,\nincluding, without limitation, any oral Evaluation Material, remains subject to the confidentiality obligations and use restrictions set forth in this\nAgreement.\n8. No Representation or Warranty. Recipient acknowledges that neither the Company, Jefferies nor any of their respective representatives\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material (and only those\nrepresentations and warranties of the Company which are made in a final definitive agreement when, as and if executed by the Company will have\nany legal effect). None of the Company, Jefferies or any of their respective representatives shall have any liability as a result of the review or use by\nRecipient or its Representatives of the Evaluation Material or for any errors therein or omissions therefrom.\n9. Acknowledgement of Recipient.\na. Recipient acknowledges that (i) it is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with\nrespect to investments such as the Transaction, (ii) it will be responsible for conducting its own due diligence investigation with respect to the\nCompany and any Transaction, (iii) if it (including any investment fund or funds it manages or advises) acquires any securities of the Company,\nit\nwill be doing so based on the results of its own due diligence investigation of the Company, (iv) if it determines to pursue an investment in a\nTransaction, it will negotiate the Transaction directly with the Company, and Jefferies will not be responsible for the ultimate success of any\nsuch\ninvestment and (v) the decision to invest in a Transaction will involve a significant degree of risk, including a risk of total loss of such investment.\nb. Accordingly, to the fullest extent permitted by law, Recipient releases Jefferies, its employees, officers and affiliates from any liability\nwith respect to Recipient's participation, or proposed participation, in the Transaction. This Section 9 shall survive any termination of this\nAgreement. Jefferies has introduced Recipient to the Company in reliance on the Recipient's understanding and agreement to this Section 9.\nC. Each of Recipient and the Company agree that Jefferies, and its employees, officers and affiliates are intended third party beneficiaries\nof this Agreement.\n4\n10. Integration. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements between the parties with respect to it and may be amended only by a written execution of all parties.\n11. Remedies. The parties acknowledge that money damages would not be a sufficient remedy for any breach of this Agreement and that each\nparty is entitled to equitable relief, including, without limitation, injunctive relief, as a remedy for any such breach, without the requirement of\nposting a bond or other security. Such remedy is not the exclusive remedy for breach of this Agreement but is in addition to all other remedies\navailable at law or equity. In the event of litigation regarding the subject matter of this Agreement, the prevailing party in a final, non-appealable\norder of a court of competent jurisdiction shall be entitled to recover its reasonable expenses and attorneys' fees in connection with obtaining such\norder.\n12. Diligence Process. Recipient and its Representatives shall not initiate or maintain contact with any stockholder, director, officer, employee,\npartner, manager, member, agent, supplier, franchisee or lender of the Company with respect to or relating in any way to the\nTransaction,\nor\nin\nwhich\nthe Transaction is discussed or referred to directly or indirectly, except as specifically authorized in writing by the Company and as provided in this\nsection. Recipient hereby agrees to submit or direct to the designee or designees of the Company all (a) communications regarding the Transaction,\n(b) requests for additional information, (c) requests for facility tours or management or employee meetings or conversations and (d) discussions or\nquestions regarding procedures.\n13. Miscellaneous.\na. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without\nregard to its conflicts of laws provisions. The exclusive venue for any actions arising directly or indirectly from this Agreement shall be the\nappropriate state or federal court sitting in the City of New York, in the State of New York.\nb. No Obligation. It is expressly understood by the parties hereto that, other than for the matters specifically agreed to herein, this\nAgreement is not intended to, and does not, constitute an agreement to consummate the Transaction or enter into a definitive agreement, and both\nparties acknowledge and agree that unless and until a written definitive agreement concerning the Transaction has been duly executed, neither party\nshall have any obligation to the other with respect to any Transaction, whether by virtue of this Agreement or any other written or oral expression\nwith respect to the Transaction or otherwise.\nC. Headings. The descriptive headings contained in this Agreement are for reference only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\nd. Binding Effect. This Agreement is binding upon the parties and their respective successors and assigns.\ne. Counterparts. This Agreement may be executed in separate original counterparts, each of which shall be deemed to be an original but\nall of which together shall constitute but one and the same Agreement. All exhibits and attachments to this Agreement are\n5\nhereby incorporated by reference herein and made a part hereof as though set forth at length hereinabove.\n14. Termination. Except for Section 9, which shall survive any termination of this Agreement, this Agreement will terminate on the date two\nyears from the date hereof; provided that, such termination shall not relieve any party from liability in respect of breaches by such party prior to such\ntermination.\n15. WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY\nWAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR\nRELATING TO THIS AGREEMENT, THE MATTERS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES IN THE\nNEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT.\nThe parties have executed this Agreement as of July 14, 2011\nCOMPANY:\nRECIPIENT:\nMorton's Restaurant Group, Inc.\nLandry's, Inc.\n/s/ Scott D. Levin\n/s/ Steven L. Scheinthal\nName: Scott D. Levin\nName: Steven L. Scheinthal\nTitle: SVP and General Counsel\nTitle: EVP & GC\nBy executing this Agreement, Mr. Tilman J. Fertitta and his affiliates hereby agree to be bound by the terms hereof.\n/s/ Tilman J. Fertitta by Steven L. Scheinthal w/permission\nTilman J. Fertitta\n6	EX-99.(D)(3) 9 d272786dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT (the “Agreement”)\nIn connection with a possible transaction, Landry’s, Inc. (the “Recipient”) and Morton’s Restaurant Group Inc. (the “Company”), agree as\nfollows:\n1. Evaluation Material. In connection with a possible negotiated transaction by the Company (the “Transaction”), the Company and its\nrepresentatives, including Jefferies & Company, Inc. (“Jefferies”), may furnish the Recipient, in writing and orally, certain information concerning\nthe current and possible future business, operations and finances of the Company and other related information, including, but not limited to,\ninformation related to the Transaction or other potential future capital raising plans of the Company (any such information, the “Evaluation\nMaterial”). The Evaluation Material may contain, and the fact that a Transaction is being contemplated may constitute, material, nonpublic\ninformation within the meaning of the U.S. federal securities laws. The Recipient acknowledges that the U.S . federal securities laws and other laws\nprohibit any person who has any such material, non-public information about a company from purchasing or selling securities of that company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n2. Limited Use of Evaluation Material. The Recipient agrees to use the Evaluation Material solely in connection with its consideration of a\nTransaction and for no other purpose.\n3. Confidentiality. The Recipient agrees to keep the Evaluation Material confidential and agrees to not disclose it to any other person, other\nthan those of its directors, officers, employees, partners, agents and advisors (such persons, the “Representatives”) who need to know such\ninformation to assist the Recipient in determining whether to participate in a Transaction; provided that, the Recipient may disclose, such Evaluation\nMaterial (a) if it is or becomes generally available to the public without any violation of this Agreement on the part of the Recipient or anyone to\nwhom it discloses Evaluation Material; (b) if it becomes available to the Recipient on a non-confidential basis from a source which is not known to\nRecipient, after reasonable inquiry, to be prohibited from disclosing any portion of the Evaluation Material to the Recipient; (c) as required by law or\nregulation, provided that the Recipient will provide the Company with prompt prior notice so that the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement; and (d) which was or is independently developed by Recipient\nwithout using the Evaluation Material or violating its obligations hereunder. As a condition to the furnishing of Evaluation Material to the\nRepresentatives of Recipient, Recipient shall cause its Representatives to treat such information in accordance with the provisions of this Agreement\nand to perform or to comply with the obligations of Recipient with respect to the Evaluation Material as contemplated hereby. Recipient agrees that\nit will be fully responsible for any breach of any of the provisions of this Agreement by its Representatives.\nIn considering a Transaction and reviewing the Evaluation Material, the Recipient confirms that it is acting solely on its own behalf and not as\npart of a group with any third parties. The Recipient will not, directly or indirectly, enter into any agreement, arrangement or understanding, or any\ndiscussions that may lead to the same, with any person regarding a possible transaction involving the Company. The Recipient and its\nRepresentatives will not\ndisclose the fact that the Evaluation Material has been made available to them or that discussions or negotiations are taking place between the parties\nconcerning a Transaction or any of the terms, conditions or other facts with respect thereto (including the status thereof).\n4. Standstill. Recipient hereby agrees that for a period of one year from the date hereof (the “Standstill Period”) Recipient and its affiliates\nwill not (and neither Recipient nor its affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting\nalone or in concert with others, unless specifically invited on an unsolicited basis in writing in advance by the Company: (i) acquire or agree, offer,\nseek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3\nunder the Exchange Act) of any of the assets or businesses of the Company or any securities issued by the Company, or any option or other right to\nacquire such ownership (including from a third party); (ii) seek or propose to influence or control the management or the policies of the Company or\nto obtain representation on the board of directors (or any committee thereof) of the Company, or solicit or participate in the solicitation of, any\nproxies or consents with respect to any securities of the Company; (iii) seek or propose to have called, or cause to be called, any meeting of\nstockholders of the Company; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any\nof the foregoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the\nforegoing activities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to the Company or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with\nany of the foregoing; or (viii) seek to have the Company amend or waive any provision of this paragraph. Recipient agrees to advise the Company\npromptly of any inquiry or proposal made to it with respect to any of the foregoing. The Recipient will not prohibit or in any way discourage any\nlenders or financial advisors from providing financing or advice to any other bidders or potential bidders except for one financial advisor that the\nRecipient retains. Recipient further agrees that, during the Standstill Period, neither it nor any of its affiliates will, without the written consent of the\nCompany, take any initiative or other action with respect to the Company or any of the subsidiaries of the Company that could require the Company\nto make a public announcement regarding (i) such initiative or other action, (ii) any of the activities, events or circumstances referred to in the\npreceding sentences of this paragraph, (iii) the possibility of the Transaction, any similar transaction or the pursuit of strategic alternatives or any\nstrategic alternative by the Company or (iv) the possibility of Recipient or any other person acquiring control of the Company whether by means of a\nbusiness combination or otherwise. Recipient represents to the Company that as of the date of this Agreement, it, together with its affiliates, owns\napproximately 850,000 shares of common stock of the Company. The obligations set forth in this paragraph are referred to in this Agreement as the\n“Standstill”.\nNotwithstanding anything in the previous paragraph to the contrary, if, on or after the date of this Agreement, any person or group of persons\n(other than Recipient) enters into a definitive agreement with the Company providing for: (a) a merger, share exchange, business combination or\nsimilar extraordinary transaction as a result of which the persons possessing, immediately prior to the consummation of such transaction, beneficial\nownership of the voting securities of the Company entitled to vote generally in elections of directors, would cease to possess, immediately after\nconsummation of such transaction, beneficial ownership of voting\n2\nsecurities entitling them to exercise at least fifty percent (50%) of the total voting power of all outstanding securities entitled to vote generally in\nelections of directors of the Company (or, if not the Company, the surviving person resulting from such transaction); (b) a sale, exchange or lease of\nall or substantially all of the assets of the Company and its subsidiaries (determined on a consolidated basis); or (c) the acquisition (by purchase,\nmerger or otherwise) by any person (including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act and the\nrules promulgated thereunder) of beneficial ownership of voting securities of the Company entitling that person to exercise fifty percent (50%) or\nmore of the total voting power of all outstanding securities entitled to vote generally in elections of directors of the Company (the transactions\ndescribed in clauses (a), (b) and (c) of this paragraph being each hereinafter referred to as a “Third-Party Agreement”); then, the Standstill shall not\nrestrict the Recipient or its affiliates from making a private acquisition proposal solely to the Board of Directors of the Company; provided, however,\nthat the Standstill again shall be fully applicable in accordance with the terms of the prior paragraph upon the termination of the Third-Party\nAgreement. For purposes of this Agreement, “beneficial ownership” shall be determined in accordance with Rule 13d-3 under the Exchange Act.\n5. Process. The Recipient acknowledges that (i) the Company shall conduct the process for a possible Transaction as it in its sole discretion\nshall determine (including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to\nthe Recipient or any other person), (ii) any procedures relating to a Transaction may be changed at any time without notice to the Recipient or any\nother person, (iii) the Company shall have the right, in its sole discretion, to reject or accept any potential buyer, proposal or offer, and to terminate\nany discussions and negotiations, at any time and for any or no reason, (iv) neither the Recipient nor any of its Representatives shall have any claims\nwhatsoever against the Company or any of its affiliates or Representatives arising out of or relating to such actions and (v) except for exercising the\nrights of a shareholder of the Company, neither the Recipient nor any of its Representatives shall challenge any Transaction on the ground that any\nsuch actions were wrongful, discriminatory, unfair or otherwise violated any duty owed the Recipient or any such Representative. Unless and until a\ndefinitive agreement between the Company or its stockholder(s) and the Recipient with respect to any Transaction has been executed and delivered,\nneither the Company nor any of its stockholders or affiliates will be under any legal obligation to the Recipient of any kind whatsoever with respect\nto such Transaction.\n6. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of the Company are a key component to the\nsuccess of the Company and that the preservation of the employee base of the Company is critical to, among other things, the prospects of the\nCompany. Therefore, Recipient agrees that, for a period of eighteen months from the date hereof, neither it nor any of its affiliates who have received\nEvaluation Material shall hire or solicit any individual who is an officer or management-level employee of the Company or any of its subsidiaries, as\nof the date hereof or at any time hereafter and prior to the termination of discussions by the Parties with respect to the Transaction, to leave his or her\nemployment with the Company or any of its subsidiaries or in any way interfere with the employment relationship between the Company or any of\nits subsidiaries and any of their respective employees; provided that the foregoing non-solicitation and non-hiring obligations shall not apply to (1)\ngeneralized advertisement of employment opportunities including in trade\n3\nor industry publications (if not focused specifically on or directed in any way at the employees or an employee of the Company or any of its\nsubsidiaries) or (2) with respect to any management-level employee who does not have a title of vice president or more senior with the Company or\nany of its subsidiaries, only such employees that are not introduced to recipient in consideration of a Transaction.\n7. Return or Destruction of Evaluation Material. In the event Recipient determines it does not wish to proceed with the Transaction,\nRecipient will promptly advise the Company of that decision. In that case or upon the Company’s request at any time, Recipient agrees to, and to\ncause its Representatives to, either return or destroy (and certify in writing to such destruction) any Evaluation Material; provided that, Recipient\nmay retain such Evaluation Material as required by applicable law or regulation. Any Evaluation Material that is not returned or destroyed,\nincluding, without limitation, any oral Evaluation Material, remains subject to the confidentiality obligations and use restrictions set forth in this\nAgreement.\n8. No Representation or Warranty. Recipient acknowledges that neither the Company, Jefferies nor any of their respective representatives\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material (and only those\nrepresentations and warranties of the Company which are made in a final definitive agreement when, as and if executed by the Company will have\nany legal effect). None of the Company, Jefferies or any of their respective representatives shall have any liability as a result of the review or use by\nRecipient or its Representatives of the Evaluation Material or for any errors therein or omissions therefrom.\n9. Acknowledgement of Recipient.\na. Recipient acknowledges that (i) it is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with\nrespect to investments such as the Transaction, (ii) it will be responsible for conducting its own due diligence investigation with respect to the\nCompany and any Transaction, (iii) if it (including any investment fund or funds it manages or advises) acquires any securities of the Company, it\nwill be doing so based on the results of its own due diligence investigation of the Company, (iv) if it determines to pursue an investment in a\nTransaction, it will negotiate the Transaction directly with the Company, and Jefferies will not be responsible for the ultimate success of any such\ninvestment and (v) the decision to invest in a Transaction will involve a significant degree of risk, including a risk of total loss of such investment.\nb. Accordingly, to the fullest extent permitted by law, Recipient releases Jefferies, its employees, officers and affiliates from any liability\nwith respect to Recipient’s participation, or proposed participation, in the Transaction. This Section 9 shall survive any termination of this\nAgreement. Jefferies has introduced Recipient to the Company in reliance on the Recipient’s understanding and agreement to this Section 9.\nc. Each of Recipient and the Company agree that Jefferies, and its employees, officers and affiliates are intended third party beneficiaries\nof this Agreement.\n4\n10. Integration. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements between the parties with respect to it and may be amended only by a written execution of all parties.\n11. Remedies. The parties acknowledge that money damages would not be a sufficient remedy for any breach of this Agreement and that each\nparty is entitled to equitable relief, including, without limitation, injunctive relief, as a remedy for any such breach, without the requirement of\nposting a bond or other security. Such remedy is not the exclusive remedy for breach of this Agreement but is in addition to all other remedies\navailable at law or equity. In the event of litigation regarding the subject matter of this Agreement, the prevailing party in a final, non-appealable\norder of a court of competent jurisdiction shall be entitled to recover its reasonable expenses and attorneys’ fees in connection with obtaining such\norder.\n12. Diligence Process. Recipient and its Representatives shall not initiate or maintain contact with any stockholder, director, officer, employee,\npartner, manager, member, agent, supplier, franchisee or lender of the Company with respect to or relating in any way to the Transaction, or in which\nthe Transaction is discussed or referred to directly or indirectly, except as specifically authorized in writing by the Company and as provided in this\nsection. Recipient hereby agrees to submit or direct to the designee or designees of the Company all (a) communications regarding the Transaction,\n(b) requests for additional information, (c) requests for facility tours or management or employee meetings or conversations and (d) discussions or\nquestions regarding procedures.\n13. Miscellaneous.\na. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without\nregard to its conflicts of laws provisions. The exclusive venue for any actions arising directly or indirectly from this Agreement shall be the\nappropriate state or federal court sitting in the City of New York, in the State of New York.\nb. No Obligation. It is expressly understood by the parties hereto that, other than for the matters specifically agreed to herein, this\nAgreement is not intended to, and does not, constitute an agreement to consummate the Transaction or enter into a definitive agreement, and both\nparties acknowledge and agree that unless and until a written definitive agreement concerning the Transaction has been duly executed, neither party\nshall have any obligation to the other with respect to any Transaction, whether by virtue of this Agreement or any other written or oral expression\nwith respect to the Transaction or otherwise.\nc. Headings. The descriptive headings contained in this Agreement are for reference only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\nd. Binding Effect. This Agreement is binding upon the parties and their respective successors and assigns.\ne. Counterparts. This Agreement may be executed in separate original counterparts, each of which shall be deemed to be an original but\nall of which together shall constitute but one and the same Agreement. All exhibits and attachments to this Agreement are\n5\nhereby incorporated by reference herein and made a part hereof as though set forth at length hereinabove.\n14. Termination. Except for Section 9, which shall survive any termination of this Agreement, this Agreement will terminate on the date two\nyears from the date hereof; provided that, such termination shall not relieve any party from liability in respect of breaches by such party prior to such\ntermination.\n15. WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY\nWAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR\nRELATING TO THIS AGREEMENT, THE MATTERS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES IN THE\nNEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT.\nThe parties have executed this Agreement as of July 14, 2011\nCOMPANY:\nRECIPIENT:\nMorton’s Restaurant Group, Inc.\nLandry’s, Inc.\n/s/ Scott D. Levin\n/s/ Steven L. Scheinthal\nName: Scott D. Levin\nName: Steven L. Scheinthal\nTitle: SVP and General Counsel\nTitle: EVP & GC\nBy executing this Agreement, Mr. Tilman J. Fertitta and his affiliates hereby agree to be bound by the terms hereof.\n/s/ Tilman J. Fertitta by Steven L. Scheinthal w/permission\nTilman J. Fertitta\n6
4e504fabc29bf973874c6940e592625b.pdf	effective_date jurisdiction party	Exhibit 10.5\nEMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE\nAND NON-SOLICIT AGREEMENT\nTHIS EMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE AND NON-SOLICIT\nAGREEMENT is entered into as of the 25th day of October, 2017 between the undersigned Yu Zhou and GENEXOSOME\nTECHNOLOGIES INC., a Nevada corporation with a place of business at 83 South Street, Suite 101, Freehold, New Jersey 07728\nUSA, (the “Company”).\nWHEREAS, I have agreed to be an employee of the Company or one of its affiliated entities (collectively referred to herein as the\n“Company”).\nIN CONSIDERATION OF, and as a condition of my employment with the Company (the receipt and sufficiency of which I hereby\nacknowledge) I hereby represent to, and agree with the Company as follows:\n1.\nPurpose of Agreement. I understand that it is critical for the Company to preserve and protect its rights in\n“Inventions” (as defined in Section 2 below), its “Confidential Information” (as defined in Section 7 below) and in all related\nintellectual property rights. Accordingly, I am entering into this Employee Invention Assignment and Confidentiality Agreement (this\n“Agreement”) as a condition of my employment with the Company.\n2.\nDisclosure of Inventions. I will promptly disclose in confidence to the Company all inventions, improvements,\ndesigns, original works of authorship, formulas, processes, compositions of matter, computer software programs, databases, mask\nworks and trade secrets (the “Inventions”) that I make or conceive or first reduce to practice or create, either alone or jointly with\nothers, during the period of my employment, whether or not in the course of my employment, and whether or not such Inventions are\npatentable, copyrightable or protectable as trade secrets.\n3.\nWork for Hire. I acknowledge and agree that any copyrightable works prepared by me within the scope of my\nemployment, including for the avoidance of doubt any such works prepared prior to the date hereof are “works made for hire” under\nthe Copyright Law of the United States and that the Company will be considered the author and owner of such copyrightable works.\n4.\nAssignment of Inventions. I agree that all Inventions that (i) have been or are developed using equipment,\nsupplies, facilities, Confidential Information, or trade secrets of the Company, (ii) result from work performed by me for the\nCompany, or (iii) relate to the Company’s business or current or anticipated research and development (the “Assigned Inventions”),\nwill be the sole and exclusive property of the Company and are hereby irrevocably assigned by me to the Company.\n5.\nAssignment of Other Rights; Moral Rights. In addition to the foregoing assignment of Assigned Inventions to the\nCompany, I hereby irrevocably transfer and assign to the Company: (i) all worldwide patents, patent applications, copyrights, mask\nworks, trade secrets and other intellectual property rights, including but not limited to rights in databases, in any Assigned Inventions,\nalong with any registrations of or applications to register such rights; and (ii) any and all “Moral Rights” (as defined below) that I\nmay have in or with respect to any Assigned Inventions. I also hereby forever waive and agree never to assert any and all Moral\nRights I may have in or with respect to any Assigned Inventions, even after termination of my work on behalf of the Company.\n“Moral Rights” mean any rights to claim authorship of or credit on an Assigned Invention, to object to or prevent the modification or\ndestruction of any Assigned Inventions, or to withdraw from circulation or control the publication or distribution of any Assigned\nInventions, and any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”\n1\n6.\nAssistance. I agree to assist the Company in every proper way, at the Company’s cost, to obtain for the Company\nand enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company’s Assigned\nInventions in any and all countries. I will execute any documents that the Company may reasonably request for use in obtaining or\nenforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. My obligations under this paragraph\nwill continue beyond the termination of my employment with the Company, provided that the Company will compensate me at a\nreasonable rate after such termination for time or expenses actually spent by me at the Company’s request on such assistance. I\nappoint the Secretary of the Company as my attorney-in-fact to execute documents on my behalf for this purpose.\n7.\nConfidential Information. I understand that my employment by the Company creates a relationship of confidence\nand trust with respect to any information that may be disclosed to me by the Company and its officers, employees, shareholders or\nagents, whether orally, in writing, by computer or other medium, by demonstration, by supply of samples and parts or in any other\nmanner, or which is otherwise accessible to me, that relates to the business of the Company or to the business of any parent,\nsubsidiary, affiliate, customer or supplier of the Company including all information received by the Company from third parties,\nwhich is subject to an obligation of confidentiality (the “Confidential Information”). Such Confidential Information includes, but is\nnot limited to, Assigned Inventions, computer programming and software, Company products and services, systems, functionality,\ndesigns, hardware, parts, concepts, specifications, features, techniques, plans, marketing, sales, performance, cost, pricing, supplier\nand customer information, data, tables, schedules, contracts and other information concerning the Company and its customers. I\nhereby acknowledge that all such Confidential Information belongs to the Company (or the respective customer, supplier or third\nparty, which supplied it to the Company.)\n8.\nConfidentiality. At all times, both during my employment and after its termination (without limitation in point of\ntime), I will keep and hold all such Confidential Information in strict confidence and trust. I will not use or disclose any Confidential\nInformation without the prior written consent of the Company, except as may be necessary to perform my duties as an employee of\nthe Company for the benefit of the Company. Upon termination of my employment with the Company, I will promptly deliver to the\nCompany all documents and materials of any nature pertaining to my work with the Company. I will not take with me or retain any\ndocuments or materials or copies thereof containing any Confidential Information. I agree that I shall at all times comply with the\nCompany’s Information Security Policy and Procedures from time to time in force. I acknowledge that breach of this policy or any\nother provision of this Agreement may be grounds for immediate dismissal.\n9.\nNo Breach of Agreement or Infringement. I represent that my acceptance of the Company’s offer of employment,\nperformance of all the terms of this Agreement and my duties as an employee of the Company will not so far as I am aware breach\nany invention assignment, proprietary information, confidentiality or similar agreement with any other party, nor infringe the rights\nof any third party. I represent that I will not bring with me to the Company or use in the performance of my duties for the Company\nany documents or materials or intangibles of a former employer or third party that are not generally available to the public or have not\nbeen legally transferred to the Company. I acknowledge that the Company is relying upon my warranty, representation and\nacknowledgement in this paragraph in offering me employment.\n10.\nNon-Complete. I acknowledge that the Company and its affiliates have invested substantial time, money and\nresources in the development and retention of their respective customers, accounts and Confidential Information. You acknowledge\nand agree that any and all “goodwill” associated with any customer or account of the Company or any of its affiliates belongs\nexclusively to the Company and/or its affiliates, as the case may be. I further acknowledge and agree that, during the course of\nperforming services the Company will, and its affiliates may, furnish, disclose or make available to you confidential and proprietary\ninformation related to the Company’s and its affiliates’ business(es) and that the Company and/or one or more affiliates may provide\nyou with unique and specialized training. I also acknowledge that such confidential information and such training have been\ndeveloped and will be developed by the Company and/or one or more affiliates through the expenditure by the Company and/or one\nor more affiliates of substantial time, effort and money and that all such confidential information and training could be used by you to\ncompete with the Company and/or one or more affiliates. In recognition of this, you covenant and agree as follows:\n2\n(a)\nI understand and acknowledge that the Company’s and its affiliates’ business interests are world-wide because the\nCompany’s and its affiliates’ products and/or services are sold in countries around the world and the Company’s and its\naffiliates’ competitors similarly operate from and market their products and/or services in many locations around the world.\nAs used in this Agreement (i) the term “Company Business” means any component or facet of business pertaining to the\nexosome field engaged in by the Company or any of its affiliates at any time anywhere in the world during your engagement\nby the Company and (ii) the term “Competitive Business” means any Company Business engaged in by any third party\nanywhere in the world.\n(b) From the date hereof until the date that is the second anniversary date of the termination of your employment with\nthe Company (or any Affiliate, as applicable and whichever is later) (the “Restricted Period”), I shall not, directly or\nindirectly, without the prior written consent of the Company, individually or in partnership with, as part of a joint venture\nwith, or otherwise in conjunction in any other manner with any other entity:\n(i)\nbe engaged in any manner whatsoever, including, without limitation, as an employee, employer, owner,\npartner, consultant, adviser, principal, agent, stockholder, member or proprietor, in any Competitive Business;\n(ii)\neither individually or on behalf of or through any third party, solicit, divert or appropriate or attempt to\nsolicit, divert or appropriate, for the purpose of competing with any Company Business, any customers or patrons\nof any Company Business, or any prospective customers or patrons with respect to which the Company or any\nAffiliate has developed or made a sales presentation (or similar offering of services); or\n(iii) advise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial\ninterest in any Competitive Business. Notwithstanding the foregoing, I shall be permitted to make wholly passive\ninvestments in any publicly held Competitive Business, provided that my direct and indirect ownership shall not\nexceed 1 % (by voting power) of the aggregate ownership interests in the entity conducting such Competitive\nBusiness.\n11.\nNo Solicitation.\n(a)\nNo Solicitation of Employees. I acknowledge the importance to the business carried on by the Company and its\naffiliates of the human resources engaged and developed by such entities. Accordingly, during the Restricted Period, I\ncovenant and agree that I shall not, directly or indirectly, induce or solicit or assist any third party in inducing or soliciting\nany employee or consultant of the Company or any affiliate to leave the Company or any affiliate or to accept employment\nor engagement elsewhere. The Company acknowledges that placing advertisements soliciting employees of the type then\nemployed by the Company or its affiliates in newspapers, Internet job sites and similar media generally accessible to the\npublic shall not be deemed to be a breach of this Section.\n3\n(b) No Solicitation of Clients and Suppliers. I acknowledge the importance to the business carried on by the Company\nand its affiliates of the client and supplier relationships developed by it and them and the unique opportunity that your\nemployment or engagement and your access to the Confidential Information offers to interfere with these relationships.\nAccordingly, you covenant and agree that you shall not after the termination of your employment or engagement with the\nCompany, directly or indirectly, for a period of two (2) years, contact or solicit any person who you know to be a\nprospective, current or former client or supplier of the Company or any affiliate for the purpose of selling to such client or\nbuying from such supplier any Company Business products or services.\n12.\nNotification. I hereby authorize the Company to notify my actual or future employers of the terms of this\nAgreement and my responsibilities hereunder.\n13.\nInjunctive Relief. I understand that in the event of a breach or threatened breach of this Agreement by me the\nCompany may suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement.\n14.\nGoverning Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of\nthe State of New Jersey, without giving effect to that body of laws pertaining to conflict of laws. I hereby submit to the jurisdiction of\nand consent to suit in the courts, Federal and State located in the State of New York with respect to any matter or dispute arising out\nof this Agreement.\n15. Severability. If any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to\nbe invalid, illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of\nthe parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the\nremainder of this Agreement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not\nenforceable) never been contained in this Agreement.\n16.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which when so executed\nand delivered will be deemed an original, and all of which together shall constitute one and the same agreement.\n17.\nEntire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and\nunderstanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and\nagreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.\n18.\nAmendment and Waivers. This Agreement may be amended only by a written agreement executed by each of the\nparties hereto. No amendment of or waiver of, or modification of any obligation under this Agreement will be enforceable unless set\nforth in a writing signed by the party against which enforcement is sought. Any amendment effected in accordance with this section\nwill be binding upon all parties hereto and each of their respective successors and assigns. No delay or failure to require performance\nof any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted\nunder this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision\nherein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.\n4\n19.\nSuccessors and Assigns; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the\nrights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns,\nheirs, executors, administrators and legal representatives. The Company may assign any of its rights and obligations under this\nAgreement to any entity which is my employer. No other party to this Agreement may assign, whether voluntarily or by operation of\nlaw, any of its rights and obligations under this Agreement, except with the prior written consent of the Company.\n20.\nFurther Assurances. The parties agree to execute such further documents and instruments and to take such further\nactions as may be reasonably necessary to carry out the purposes and intent of this Agreement.\nSIGNED THIS 25th DAY OF OCTOBER 2017\n/s/ Yu Zhou\nYu Zhou\nGENEXOSOME TECHNOLOGIES INC.\nBy: /s/David Jin\nName: David Jin\nTitle: Co-CEO\n5	Exhibit 10.5\nEMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE\nAND NON-SOLICIT AGREEMENT\nTHIS EMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE AND NON-SOLICIT\nAGREEMENT is entered into as of the 25th day of October, 2017 between the undersigned Yu Zhou and GENEXOSOME\nTECHNOLOGIES INC., a Nevada corporation with a place of business at 83 South Street, Suite 101, Freehold, NewJersey 07728\nUSA, (the ”Company").\nWHEREAS, I have agreed to be an employee of the Company or one of its affiliated entities (collectively referred to herein as the\n”Company").\nIN CONSIDERATION OE, and as a condition of my employment with the Company (the receipt and sufficiency of which I hereby\nacknowledge) I hereby represent to, and agree with the Company as follows:\n1. Purpose of Agreement. I understand that it is critical for the Company to preserve and protect its rights in\n”Inventions" (as defined in Section 2 below), its ”Confidential Information" (as defined in Section 7 below) and in all related\nintellectual property rights. Accordingly, I am entering into this Employee Invention Assignment and Confidentiality Agreement (this\n”Agreement") as a condition of my employment with the Company.\n2. Disclosure of Inventions. I will promptly disclose in confidence to the Company all inventions, improvements,\ndesigns, original works of authorship, formulas, processes, compositions of matter, computer software programs, databases, mask\nworks and trade secrets (the ”Inventions") that I make or conceive or first reduce to practice or create, either alone or jointly with\nothers, during the period of my employment, whether or not in the course of my employment, and whether or not such Inventions are\npatentable, copyrightable or protectable as trade secrets.\n3. Work for Hire. I acknowledge and agree that any copyrightable works prepared by me within the scope of my\nemployment, including for the avoidance of doubt any such works prepared prior to the date hereof are ”works made for hire" under\nthe Copyright Law of the United States and that the Company will be considered the author and owner of such copyrightable works.\n4. Assignment of Inventions. I agree that all Inventions that (i) have been or are developed using equipment,\nsupplies, facilities, Confidential Information, or trade secrets of the Company, (ii) result from work performed by me for the\nCompany, or (iii) relate to the Company's business or current or anticipated research and development (the ”Assigned Inventions"),\nwill be the sole and exclusive property of the Company and are hereby irrevocably assigned by me to the Company.\n5. Assignment of Other Rights; Moral Rights. In addition to the foregoing assignment of A ssigned Inventions to the\nCompany, I hereby irrevocably transfer and assign to the Company: (i) all worldwide patents, patent applications, copyrights, mask\nworks, trade secrets and other intellectual property rights, including but not limited to rights in databases, in any Assigned Inventions,\nalong with any registrations of or applications to register such rights; and (ii) any and all ”Moral Rights” (as defined below) that I\nmay have in or with respect to any Assigned Inventions. I also hereby forever waive and agree never to assert any and all Moral\nRights I may have in or with respect to any Assigned Inventions, even after termination of my work on behalf of the Company.\n”Moral Rights" mean any rights to claim authorship of or credit on an Assigned Invention, to object to or prevent the modification or\ndestruction of any Assigned Inventions, or to withdraw from circulation or control the publication or distribution of any Assigned\nInventions, and any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a ”moral right.”\n6. Assistance. I agree to assist the Company in every proper way, at the Company's cost, to obtain for the Company\nand enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company's Assigned\nInventions in any and all countries. I will execute any documents that the Company may reasonably request for use in obtainng or\nenforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. My obligations under this paragraph\nwill continue beyond the termination of my employment with the Company, provided that the Company will compensate me at a\nreasonable rate after such termination for time or expenses actually spent by me at the Company's request on such assistance. I\nappoint the Secretary of the Company as my attomey-in-fact to execute documents on my behalf for this purpose.\n7. Confidential Information. I understand that my employment by the Company creates a relationship of confidence\nand trust with respect to any information that may be disclosed to me by the Company and its officers, employees, shareholders or\nagents, whether orally, in writing, by computer or other medium, by demonstration, by supply of samples and parts or in any other\nmanner, or which is otherwise accessible to me, that relates to the business of the Company or to the business of any parent,\nsubsidiary, affiliate, customer or supplier of the Company including all information received by the Company from third parties,\nwhich is subject to an obligation of confidentiality (the ”Confidential Information"). Such Confidential Information includes, but is\nnot limited to, Assigned Inventions, computer programming and software, Company products and services, systems, functionality,\ndesigns, hardware, parts, concepts, specifications, features, techniques, plans, marketing, sales, performance, cost, pricing, supplier\nand customer information, data, tables, schedules, contracts and other information concerning the Company and its customers. I\nhereby acknowledge that all such Confidential Information belongs to the Company (or the respective customer, supplier or third\nparty, which supplied it to the Company.)\n8. Confidentiality. At all times, both during my employment and after its termination (without limitation in point of\ntime), I will keep and hold all such Confidential Information in strict confidence and trust. I will not use or disclose any Confidential\nInformation without the prior written consent of the Company, except as may be necessary to perform my duties as an employee of\nthe Company for the benefit of the Company. Upon termination of my employment with the Company, I will promptly deliver to the\nCompany all documents and materials of any nature pertaining to my work with the Company. I will not take with me or retain any\ndocuments or materials or copies thereof containing any Confidential Information. I agree that I shall at all times comply with the\nCompany' s Information Security Policy and Procedures from time to time in force. I acknowledge that breach of this policy or any\nother provision of this Agreement may be grounds for immediate dismissal.\n9. No Breach of Agreement or Infringement. I represent that my acceptance of the Company' s offer of employment,\nperformance of all the terms of this Agreement and my duties as an employee of the Company will not so far as I am aware breach\nany invention assignment, proprietary information, confidentiality or similar agreement with any other party, nor infringe the rights\nof any third party. I represent that I will not bring with me to the Company or use in the performance of my duties for the Company\nany documents or materials or intangibles of a former employer or third party that are not generally available to the public or have not\nbeen legally transferred to the Company. I acknowledge that the Company is relying upon my warranty, representation and\nacknowledgement in this paragraph in offering me employment.\n10. Non-Complete. I acknowledge that the Company and its affiliates have invested substantial time, money and\nresources in the development and retention of their respective customers, accounts and Confidential Information. You acknowledge\nand agree that any and all ”goodwill" associated with any customer or account of the Company or any of its affiliates belongs\nexclusively to the Company and/or its affiliates, as the case may be. I further acknowledge and agree that, during the course of\nperforming services the Company will, and its affiliates may, furnish, disclose or make available to you confidential and proprietary\ninformation related to the Company's and its affiliates’ business(es) and that the Company and/or one or more affiliates may provide\nyou with unique and specialized training. I also acknowledge that such confidential information and such training have been\ndeveloped and will be developed by the Company and/or one or more affiliates through the expenditure by the Company and/or one\nor more affiliates of substantial time, effort and money and that all such confidential information and training could be used by you to\ncompete with the Company and/or one or more affiliates. In recognition of this, you covenant and agree as follows:\n(a) I understand and acknowledge that the Company’s and its affiliates’ business interests are world-wide because the\nCompany’s and its affiliates’ products and/or services are sold in countries around the world and the Company’s and its\naffiliates’ competitors similarly operate from and market their products and/or services in many locations around the world.\nAs used in this Agreement (i) the term ”C ompany Business” means any component or facet of business pertaining to the\nexosome field engaged in by the Company or any of its affiliates at any time anywhere in the world during your engagement\nby the Company and (ii) the term ”Competitive Business” means any Company Business engaged in by any third party\nanywhere in the world.\n(b) From the date hereof until the date that is the second anniversary date of the termination of your employment with\nthe Company (or any Affiliate, as applicable and whichever is later) (the ”Restricted Period”), 1 shall not, directly or\nindirectly, without the prior written consent of the Company, individually or in partnership with, as part of a joint venture\nwith, or otherwise in conjunction in any other manner with any other entity:\n(i) be engaged in any manner whatsoever, including, without limitation, as an employee, employer, owner,\npartner, consultant, adviser, principal, agent, stockholder, member or proprietor, in any Competitive Business;\n(ii) either individually or on behalf of or through any third party, solicit, divert or appropriate or attempt to\nsolicit, divert or appropriate, for the purpose of competing with any Company Business, any customers or patrons\nof any Company Business, or any prospective customers or patrons with respect to which the Company or any\nAffiliate has developed or made a sales presentation (or similar offering of services) ,- or\n(iii) advise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial\ninterest in any Competitive Business. Notwithstanding the foregoing, I shall be permitted to make wholly passive\ninvestments in any publicly held Competitive Business, provided that my direct and indirect ownership shall not\nexceed 1 % (by voting power) of the aggregate ownership interests in the entity conducting such Competitive\nB usiness.\n11. No Solicitation.\n(a) N0 Solicitation of Employees. I acknowledge the importance to the business carried on by the Company and its\naffiliates of the human resources engaged and developed by such entities. Accordingly, during the Restricted Period, 1\ncovenant and agree that I shall not, directly or indirectly, induce or solicit or assist any third party in inducing or soliciting\nany employee or consultant of the Company or any affiliate to leave the Company or any affiliate or to accept employment\nor engagement elsewhere. The Company acknowledges that placing advertisements soliciting employees of the type then\nemployed by the Company or its affiliates in newspapers, Internet job sites and similar media generally accessible to the\npublic shall not be deemed to be a breach of this Section.\n(b) No Solicitation of Clients and Suppliers. I acknowledge the importance to the business carried on by the Company\nand its affiliates of the client and supplier relationships developed by it and them and the unique opportunity that your\nemployment or engagement and your access to the Confidential Information offers to interfere with these relationships.\nAccordingly, you covenant and agree that you shall not after the termination of your employment or engagement with the\nCompany, directly or indirectly, for a period of two (2) years, contact or solicit any person who you know to be a\nprospective, current or former client or supplier of the Company or any affiliate for the purpose of selling to such client or\nbuying from such supplier any Company Business products or services.\n12. Notification. I hereby authorize the Company to notify my actual or future employers of the terms of this\nA greement and my responsibilities hereunder.\n13. Iniunctive Relief. I understand that in the event of a breach or threatened breach of this Agreement by me the\nCompany may suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement.\n14. Governin Law; urisdiction. This Agreement will be governed by and construed in accordance with the laws of\nthe State of New Jersey, without giving effect to that body of laws pertaining to conflict of laws. I hereby submit to the jurisdiction of\nand consent to suit in the courts, Federal and State located in the State of New Y ork with respect to any matter or dispute arising out\nof this A greement.\n15. Severabilig. If any provision of this A greement is determined by any court or arbitrator of competent jurisdiction to\nbe invalid, illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of\nthe parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the\nremainder of this Agreement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not\nenforceable) never been contained in this A greement.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed\nand delivered will be deemed an original, and all of which together shall constitute one and the same agreement.\n17. Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and\nunderstanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and\nagreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.\n18. Amendment and Waivers. This Agreement may be amended only by a written agreement executed by each of the\nparties hereto. No amendment of or waiver of, or modification of any obligation under this Agreement will be enforceable unless set\nforth in a writing signed by the party against which enforcement is sought. Any amendment effected in accordance with this section\nwill be binding upon all parties hereto and each of their respective successors and assigns. No delay or failure to require performance\nof any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted\nunder this A greement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision\nherein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.\n19. Successors and Assigps; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the\nrights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns,\nheirs, executors, administrators and legal representatives. The Company may assign any of its rights and obligations under this\nAgreement to any entity which is my employer. No other party to this Agreement may assign, whether voluntarily or by operation of\nlaw, any of its rights and obligations under this Agreement, except with the prior written consent of the Company.\n20. Further Assurances. The parties agree to execute such further documents and instruments and to take such further\nactions as may be reasonably necessary to carry out the purposes and intent of this Agreement.\nSIG NED THIS 25th DAY OF OCTOBER 2017\n/s/ Yu Zhou\nYu Zhou\nGENEXOSOME TECHNOLOGIES INC.\nBy: /s/David]in\nName: DavidJin\nTitle: Co-CEO	Exhibit 10.5\nEMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE\nAND NON-SOLICIT AGREEMENT\nTHIS EMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE AND NON-SOLICIT\nAGREEMENT is entered into as of the 25th day of October, 2017 between the undersigned Yu Zhou and GENEXOSOME\nTECHNOLOGIES INC., a Nevada corporation with a place of business at 83 South Street, Suite 101, Freehold, New Jersey 07728\nUSA, (the "Company").\nWHEREAS, I have agreed to be an employee of the Company or one of its affiliated entities (collectively referred to herein as the\n"Company").\nIN CONSIDERATION OF, and as a condition of my employment with the Company (the receipt and sufficiency of which I hereby\nacknowledge) I hereby represent to, and agree with the Company as follows:\n1.\nPurpose of Agreement I understand that it is critical for the Company to preserve and protect its rights in\n"Inventions" (as defined in Section 2 below), its "Confidential Information" (as defined in Section 7 below) and in all related\nintellectual property rights. Accordingly I am entering into this Employee Invention Assignment and Confidentiality Agreement (this\n"Agreement") as a condition of my employment with the Company.\n2.\nDisclosure of Inventions. I will promptly disclose in confidence to the Company all inventions, improvements,\ndesigns, original works of authorship, formulas, processes, compositions of matter, computer software programs, databases, mask\nworks and trade secrets (the "Inventions") that I make or conceive or first reduce to practice or create, either alone or jointly with\nothers, during the period of my employment, whether or not in the course of my employment, and whether or not such Inventions are\npatentable, copyrightable or protectable as trade secrets.\n3.\nWork for Hire. I acknowledge and agree that any copyrightable works prepared by me within the scope of my\nemployment including for the avoidance of doubt any such works prepared prior to the date hereof are "works made for hire" under\nthe Copyright Law of the United States and that the Company will be considered the author and owner of such copyrightable works.\n4.\nssignment of Inventions. I agree that all Inventions that (i) have been or are developed using equipment,\nsupplies, facilities, Confidentia Information or trade secrets of the Company, (ii) result from work performed by me for the\nCompany, or (iii) relate to the Company's business or current or anticipated research and development (the "Assigned Inventions"),\nwill be the sole and exclusive property of the Company and are hereby irrevocably assigned by me to the Company.\n5.\nAssignment of ther Rights; Moral Rights. In addition to the foregoing assignment of A ssigned Inventions to the\nCompany, I hereby irrevocably transfer and assign to the Company: (i) all wordwide patents, patent applications, copyrights, mask\nworks, trade secrets and other intellectual property rights, including but not limited to rights in databases, in any Assigned Inventions,\nalong\nwith\nany\nregistrations\nof\nor\napplications\nto\nregister\nsuch\nrights;\nand\n(ii)\nany\nand\nall\n"Moral\nRights"\n(as\ndefined\nbelow)\nthat\nI\nmay have in or with respect to any Assigned Inventions. I also hereby forever waive and agree never to assert any and all Moral\nRights I may have in or with respect to any Assigned Inventions, even after termination of my work on behalf of the Company.\n"Moral Rights" mean any rights to claim authorship of or credit on an Assigned Invention, to object to or prevent the modification or\ndestruction of any Assigned Inventions, or to withdraw from circulation or control the publication or distribution of any Assigned\nInventions, and any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a "moral right."\n6.\nAssistance. I agree to assist the Company in every proper way, at the Company's cost, to obtain for the Company\nand enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company's Assigned\nInventions in any and all countries. I will execute any documents that the Company may reasonably request for use in obtaining or\nenforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. My obligations under this paragraph\nwill continue beyond the termination of my employment with the Company, provided that the Company will compensate me at a\nreasonable rate after such termination for time or expenses actually spent by me at the Company's request on such assistance. I\nappoint the Secretary of the Company as my attorney-in-fact to execute documents on my behalf for this purpose.\n7.\nConfidential Information. I understand that my employment by the Company creates a relationship of confidence\nand trust with respect to any information that may be disclosed to me by the Company and its officers, employees, shareholders or\nagents, whether orally, in writing, by computer or other medium, by demonstration, by supply of samples and parts or in any other\nmanner, or which is otherwise accessible to me, that relates to the business of the Company or to the business of any parent,\nsubsidiary, affiliate, customer or supplier of the Company including all information received by the Company from third parties,\nwhich is subject to an obligation of confidentiality (the "Confidential Information"). Such Confidential Information includes, but is\nnot limited to, Assigned Inventions, computer programming and software, Company products and services, systems, functionality,\ndesigns,\nhardware,\nparts,\nconcepts,\nspecifications,\nfeatures,\ntechniques,\nplans,\nmarketing,\nsales,\nperformance,\ncost,\npricing,\nsupplier\nand customer information, data, tables, schedules, contracts and other information concerning the Company and its customers. I\nhereby acknowledge that all such Confidential Information belongs to the Company (or the respective customer, supplier or third\nparty, which supplied it to the Company.)\n8.\nConfidentiality. A all times, both during my employment and after its termination (without limitation in point of\ntime), I will keep and hold all such Confidential Information in strict confidence and trust. I will not use or disclose any Confidential\nInformation without the prior written consent of the Company, except as may be necessary to perform my duties as an employee of\nthe Company for the benefit of the Company. Upon termination of my employment with the Company, I will promptly deliver to the\nCompany\nall\ndocuments\nand\nmaterials\nof\nany\nnature\npertaining\nto\nmy\nwork\nwith\nthe\nCompany.\nI\nwill\nnot\ntake\nwith\nme\nor\nretain\nany\ndocuments or materials or copies thereof containing any Confidential Information. I agree that I shall at all times comply with the\nCompany's Information Security Policy and Procedures from time to time in force. I acknowledge that breach of this policy or any\nother provision of this Agreement may be grounds for immediate dismissal.\n9.\nNo Breach of Agreement or Infringement. I represent that my acceptance of the Company's offer of employment,\nperformance of all the terms of this Agreement and my duties as an employee of the Company will not so far as I am aware breach\nany invention assignment, proprietary information, confidentiality or similar agreement with any other party, nor infringe the rights\nof any third party. I represent that I will not bring with me to the Company or use in the performance of my duties for the Company\nany\ndocuments\nor\nmaterials\nor\nintangibles\nof\na\nformer\nemployer\nor\nthird\nparty\nthat\nare\nnot\ngenerally\navailable\nto\nthe\npublic\nor\nhave\nnot\nbeen legally transferred to the Company. I acknowledge that the Company is relying upon my warranty, representation and\nacknowledgement in this paragraph in offering me employment.\n10.\nNon-Complete. I acknowledge that the Company and its affiliates have invested substantial time, money and\nresources in the development and retention of their respective customers, accounts and Confidential Information. ou acknowledge\nand agree that any and all "goodwill" associated with any customer or account of the Company or any of its affiliates belongs\nexclusively to the Company and/or its affiliates, as the case may be. I further acknowledge and agree that, during the course of\nperforming services the Company will, and its affiliates may, furnish, disclose or make available to you confidential and proprietary\ninformation\nrelated\nto\nthe\nCompany's\nand\nits\naffiliates'\nbusiness(es)\nand\nthat\nthe\nCompany\nand/or\none\nor\nmore\naffiliates\nmay\nprovide\nyou with unique and specialized training. I also acknowledge that such confidential information and such training have been\ndeveloped and will be developed by the Company and/or one or more affiliates through the expenditure by the Company and/or one\nor more affiliates of substantial time, effort and money and that all such confidential information and training could be used by you to\ncompete with the Company and/or one or more affiliates. In recognition of this, you covenant and agree as follows:\nN\n(a)\nI understand and acknowledge that the Company's and its affiliates' business interests are world-wide because the\nCompany's and its affiliates' products and/or services are sold in countries around the world and the Company's and its\naffiliates' competitors similarly operate from and market their products and/or services in many locations around the world.\nAs used in this A greement (i) the term "Company Business" means any component or facet of business pertaining to the\nexosome field engaged in by the Company or any of its affiliates at any time anywhere in the world during your engagement\nby the Company and (ii) the term Competitive Business" means any Company Business engaged in by any third party\nanywhere in the world.\n(b)\nFrom the date hereof until the date that is the second anniversary date of the termination of your employment with\nthe Company (or any Affiliate, as applicable and whichever is later) (the "Restricted Period"), I shall not, directly or\nindirectly, without the prior written consent of the Company, individually or in partnership with, as part of a joint venture\nwith, or otherwise in conjunction in any other manner with any other entity:\n(i)\nbe engaged in any manner whatsoever including, without limitation, as an employee, employer, owner,\npartner, consultant, adviser, principal, agent, stockholder, member or proprietor, in any Competitive Business;\n(ii)\neither individually or on behalf of or through any third party, solicit, divert or appropriate or attempt to\nsolicit, divert or appropriate, for the purpose of competing with any Company Business, any customers or patrons\nof any Company Business, or any prospective customers or patrons with respect to which the Company or any\nAffiliate has developed or made a sales presentation (or similar offering of services); or\n(iii)\nadvise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial\ninterest in any Competitive Business. Notwithstanding the foregoing, I shall be permitted to make wholly passive\ninvestments in any publicly held Competitive Business, provided that my direct and indirect ownership shall not\nexceed 1 % (by voting power) of the aggregate ownership interests in the entity conducting such Competitive\nBusiness.\n11.\nNo Solicitation.\n(a)\nNo Solicitation of Employees I acknowledge the importance to the business carried on by the Company and its\naffiliates of the human resources engaged and developed by such entities. Accordingly, during the Restricted Period, I\ncovenant and agree that I shall not, directly or indirectly, induce or solicit or assist any third party in inducing or soliciting\nany employee or consultant of the Company or any affiliate to leave the Company or any affiliate or to accept employment\nor engagement elsewhere. The Company acknowledges that placing advertisements soliciting employees of the type then\nemployed by the Company or its affiliates in newspapers, Internet job sites and similar media generally accessible to the\npublic shall not be deemed to be a breach of this Section.\n3\n(b)\nNo Solicitation of Clients and Suppliers. I acknowledge the importance to the business carried on by the Company\nand its affiliates of the client and supplier relationships developed by it and them and the unique opportunity that your\nemployment or engagement and your access to the Confidential Information offers to interfere with these relationships.\nAccordingly, you covenant and agree that you shall not after the termination of your employment or engagement with the\nCompany, directly or indirectly, for a period of two (2) years, contact or solicit any person who you know to be\na\nprospective, current or former client or supplier of the Company or any affiliate for the purpose of selling to such client or\nbuying from such supplier any Company Business products or services.\n12.\nNotification. I hereby authorize the Company to notify my actual or future employers of the terms of this\nAgreement and my responsibilities hereunder.\n13.\nInjunctive Relief. I understand that in the event of a breach or threatened breach of this Agreement by me the\nCompany may suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement.\n14.\nGoverning Law; urisdiction. This greement will be governed by and construed in accordance with the laws of\nthe State of New Jersey, without giving effect to that body of laws pertaining to conflict of laws. I hereby submit to the jurisdiction of\nand consent to suit in the courts, Federal and State located in the State of New Y ork with respect to any matter or dispute arising out\nof this A greement.\n15.\nSeverability. If any provision of this A greement is determined by any court or arbitrator of competent jurisdiction to\nbe invalid illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of\nthe parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the\nremainder of this greement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not\nenforceable) never been contained in this Agreement.\n16.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which when so executed\nand delivered will be deemed an original, and all of which together shall constitute one and the same agreement.\n17.\nEntire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and\nunderstanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and\nagreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.\n18.\nAmendment and Waivers. This A greement may be amended only by a written agreement executed by each of the\nparties hereto. No amendment of or waiver of, or modification of any obligation under this Agreement wil be enforceable unless set\nforth in a writing signed by the party against which enforcement is sought Any amendment effected in accordance with this section\nwill be binding upon all parties hereto and each of their respective successors and assigns. No delay or failure to require performance\nof any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted\nunder this A greement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision\nherein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.\n4\n19.\nSuccessors and Assigns; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the\nrights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns,\nheirs, executors, administrators and legal representatives. The Company may assign any of its rights and obligations under this\nAgreement to any entity which is my employer. No other party to this A greement may assign, whether voluntarily or by operation of\nlaw, any of its rights and obligations under this Agreement except with the prior written consent of the Company.\n20.\nFurther Assurances. The parties agree to execute such further documents and instruments and to take such further\nactions as may be reasonably necessary to carry out the purposes and intent of this Agreement\nSIGNED THIS 25th DAY OF OCTOBER 2017\n/s/ Y u Zhou\nY u Zhou\nGENEXOSOME TECHNOLOGIES INC.\nBy: /s/David /s/D avid Jin\nName: David Jin\nTitle: Co-CEO\n5	Exhibit 10.5\nEMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE\nAND NON-SOLICIT AGREEMENT\nTHIS EMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE AND NON-SOLICIT\nAGREEMENT is entered into as of the 25th day of October, 2017 between the undersigned Yu Zhou and GENEXOSOME\nTECHNOLOGIES INC., a Nevada corporation with a place of business at 83 South Street, Suite 101, Freehold, New Jersey 07728\nUSA, (the “Company”).\nWHEREAS, I have agreed to be an employee of the Company or one of its affiliated entities (collectively referred to herein as the\n“Company”).\nIN CONSIDERATION OF, and as a condition of my employment with the Company (the receipt and sufficiency of which I hereby\nacknowledge) I hereby represent to, and agree with the Company as follows:\n1.\nPurpose of Agreement. I understand that it is critical for the Company to preserve and protect its rights in\n“Inventions” (as defined in Section 2 below), its “Confidential Information” (as defined in Section 7 below) and in all related\nintellectual property rights. Accordingly, I am entering into this Employee Invention Assignment and Confidentiality Agreement (this\n“Agreement”) as a condition of my employment with the Company.\n2.\nDisclosure of Inventions. I will promptly disclose in confidence to the Company all inventions, improvements,\ndesigns, original works of authorship, formulas, processes, compositions of matter, computer software programs, databases, mask\nworks and trade secrets (the “Inventions”) that I make or conceive or first reduce to practice or create, either alone or jointly with\nothers, during the period of my employment, whether or not in the course of my employment, and whether or not such Inventions are\npatentable, copyrightable or protectable as trade secrets.\n3.\nWork for Hire. I acknowledge and agree that any copyrightable works prepared by me within the scope of my\nemployment, including for the avoidance of doubt any such works prepared prior to the date hereof are “works made for hire” under\nthe Copyright Law of the United States and that the Company will be considered the author and owner of such copyrightable works.\n4.\nAssignment of Inventions. I agree that all Inventions that (i) have been or are developed using equipment,\nsupplies, facilities, Confidential Information, or trade secrets of the Company, (ii) result from work performed by me for the\nCompany, or (iii) relate to the Company’s business or current or anticipated research and development (the “Assigned Inventions”),\nwill be the sole and exclusive property of the Company and are hereby irrevocably assigned by me to the Company.\n5.\nAssignment of Other Rights; Moral Rights. In addition to the foregoing assignment of Assigned Inventions to the\nCompany, I hereby irrevocably transfer and assign to the Company: (i) all worldwide patents, patent applications, copyrights, mask\nworks, trade secrets and other intellectual property rights, including but not limited to rights in databases, in any Assigned Inventions,\nalong with any registrations of or applications to register such rights; and (ii) any and all “Moral Rights” (as defined below) that I\nmay have in or with respect to any Assigned Inventions. I also hereby forever waive and agree never to assert any and all Moral\nRights I may have in or with respect to any Assigned Inventions, even after termination of my work on behalf of the Company.\n“Moral Rights” mean any rights to claim authorship of or credit on an Assigned Invention, to object to or prevent the modification or\ndestruction of any Assigned Inventions, or to withdraw from circulation or control the publication or distribution of any Assigned\nInventions, and any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”\n1\n6.\nAssistance. I agree to assist the Company in every proper way, at the Company’s cost, to obtain for the Company\nand enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company’s Assigned\nInventions in any and all countries. I will execute any documents that the Company may reasonably request for use in obtaining or\nenforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. My obligations under this paragraph\nwill continue beyond the termination of my employment with the Company, provided that the Company will compensate me at a\nreasonable rate after such termination for time or expenses actually spent by me at the Company’s request on such assistance. I\nappoint the Secretary of the Company as my attorney-in-fact to execute documents on my behalf for this purpose.\n7.\nConfidential Information. I understand that my employment by the Company creates a relationship of confidence\nand trust with respect to any information that may be disclosed to me by the Company and its officers, employees, shareholders or\nagents, whether orally, in writing, by computer or other medium, by demonstration, by supply of samples and parts or in any other\nmanner, or which is otherwise accessible to me, that relates to the business of the Company or to the business of any parent,\nsubsidiary, affiliate, customer or supplier of the Company including all information received by the Company from third parties,\nwhich is subject to an obligation of confidentiality (the “Confidential Information”). Such Confidential Information includes, but is\nnot limited to, Assigned Inventions, computer programming and software, Company products and services, systems, functionality,\ndesigns, hardware, parts, concepts, specifications, features, techniques, plans, marketing, sales, performance, cost, pricing, supplier\nand customer information, data, tables, schedules, contracts and other information concerning the Company and its customers. I\nhereby acknowledge that all such Confidential Information belongs to the Company (or the respective customer, supplier or third\nparty, which supplied it to the Company.)\n8.\nConfidentiality. At all times, both during my employment and after its termination (without limitation in point of\ntime), I will keep and hold all such Confidential Information in strict confidence and trust. I will not use or disclose any Confidential\nInformation without the prior written consent of the Company, except as may be necessary to perform my duties as an employee of\nthe Company for the benefit of the Company. Upon termination of my employment with the Company, I will promptly deliver to the\nCompany all documents and materials of any nature pertaining to my work with the Company. I will not take with me or retain any\ndocuments or materials or copies thereof containing any Confidential Information. I agree that I shall at all times comply with the\nCompany’s Information Security Policy and Procedures from time to time in force. I acknowledge that breach of this policy or any\nother provision of this Agreement may be grounds for immediate dismissal.\n9.\nNo Breach of Agreement or Infringement. I represent that my acceptance of the Company’s offer of employment,\nperformance of all the terms of this Agreement and my duties as an employee of the Company will not so far as I am aware breach\nany invention assignment, proprietary information, confidentiality or similar agreement with any other party, nor infringe the rights\nof any third party. I represent that I will not bring with me to the Company or use in the performance of my duties for the Company\nany documents or materials or intangibles of a former employer or third party that are not generally available to the public or have not\nbeen legally transferred to the Company. I acknowledge that the Company is relying upon my warranty, representation and\nacknowledgement in this paragraph in offering me employment.\n10.\nNon-Complete. I acknowledge that the Company and its affiliates have invested substantial time, money and\nresources in the development and retention of their respective customers, accounts and Confidential Information. You acknowledge\nand agree that any and all “goodwill” associated with any customer or account of the Company or any of its affiliates belongs\nexclusively to the Company and/or its affiliates, as the case may be. I further acknowledge and agree that, during the course of\nperforming services the Company will, and its affiliates may, furnish, disclose or make available to you confidential and proprietary\ninformation related to the Company’s and its affiliates’ business(es) and that the Company and/or one or more affiliates may provide\nyou with unique and specialized training. I also acknowledge that such confidential information and such training have been\ndeveloped and will be developed by the Company and/or one or more affiliates through the expenditure by the Company and/or one\nor more affiliates of substantial time, effort and money and that all such confidential information and training could be used by you to\ncompete with the Company and/or one or more affiliates. In recognition of this, you covenant and agree as follows:\n2\n(a)\nI understand and acknowledge that the Company’s and its affiliates’ business interests are world-wide because the\nCompany’s and its affiliates’ products and/or services are sold in countries around the world and the Company’s and its\naffiliates’ competitors similarly operate from and market their products and/or services in many locations around the world.\nAs used in this Agreement (i) the term “Company Business” means any component or facet of business pertaining to the\nexosome field engaged in by the Company or any of its affiliates at any time anywhere in the world during your engagement\nby the Company and (ii) the term “Competitive Business” means any Company Business engaged in by any third party\nanywhere in the world.\n(b) From the date hereof until the date that is the second anniversary date of the termination of your employment with\nthe Company (or any Affiliate, as applicable and whichever is later) (the “Restricted Period”), I shall not, directly or\nindirectly, without the prior written consent of the Company, individually or in partnership with, as part of a joint venture\nwith, or otherwise in conjunction in any other manner with any other entity:\n(i)\nbe engaged in any manner whatsoever, including, without limitation, as an employee, employer, owner,\npartner, consultant, adviser, principal, agent, stockholder, member or proprietor, in any Competitive Business;\n(ii)\neither individually or on behalf of or through any third party, solicit, divert or appropriate or attempt to\nsolicit, divert or appropriate, for the purpose of competing with any Company Business, any customers or patrons\nof any Company Business, or any prospective customers or patrons with respect to which the Company or any\nAffiliate has developed or made a sales presentation (or similar offering of services); or\n(iii) advise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial\ninterest in any Competitive Business. Notwithstanding the foregoing, I shall be permitted to make wholly passive\ninvestments in any publicly held Competitive Business, provided that my direct and indirect ownership shall not\nexceed 1 % (by voting power) of the aggregate ownership interests in the entity conducting such Competitive\nBusiness.\n11.\nNo Solicitation.\n(a)\nNo Solicitation of Employees. I acknowledge the importance to the business carried on by the Company and its\naffiliates of the human resources engaged and developed by such entities. Accordingly, during the Restricted Period, I\ncovenant and agree that I shall not, directly or indirectly, induce or solicit or assist any third party in inducing or soliciting\nany employee or consultant of the Company or any affiliate to leave the Company or any affiliate or to accept employment\nor engagement elsewhere. The Company acknowledges that placing advertisements soliciting employees of the type then\nemployed by the Company or its affiliates in newspapers, Internet job sites and similar media generally accessible to the\npublic shall not be deemed to be a breach of this Section.\n3\n(b) No Solicitation of Clients and Suppliers. I acknowledge the importance to the business carried on by the Company\nand its affiliates of the client and supplier relationships developed by it and them and the unique opportunity that your\nemployment or engagement and your access to the Confidential Information offers to interfere with these relationships.\nAccordingly, you covenant and agree that you shall not after the termination of your employment or engagement with the\nCompany, directly or indirectly, for a period of two (2) years, contact or solicit any person who you know to be a\nprospective, current or former client or supplier of the Company or any affiliate for the purpose of selling to such client or\nbuying from such supplier any Company Business products or services.\n12.\nNotification. I hereby authorize the Company to notify my actual or future employers of the terms of this\nAgreement and my responsibilities hereunder.\n13.\nInjunctive Relief. I understand that in the event of a breach or threatened breach of this Agreement by me the\nCompany may suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement.\n14.\nGoverning Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of\nthe State of New Jersey, without giving effect to that body of laws pertaining to conflict of laws. I hereby submit to the jurisdiction of\nand consent to suit in the courts, Federal and State located in the State of New York with respect to any matter or dispute arising out\nof this Agreement.\n15. Severability. If any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to\nbe invalid, illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of\nthe parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the\nremainder of this Agreement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not\nenforceable) never been contained in this Agreement.\n16.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which when so executed\nand delivered will be deemed an original, and all of which together shall constitute one and the same agreement.\n17.\nEntire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and\nunderstanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and\nagreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.\n18.\nAmendment and Waivers. This Agreement may be amended only by a written agreement executed by each of the\nparties hereto. No amendment of or waiver of, or modification of any obligation under this Agreement will be enforceable unless set\nforth in a writing signed by the party against which enforcement is sought. Any amendment effected in accordance with this section\nwill be binding upon all parties hereto and each of their respective successors and assigns. No delay or failure to require performance\nof any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted\nunder this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision\nherein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.\n4\n19.\nSuccessors and Assigns; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the\nrights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns,\nheirs, executors, administrators and legal representatives. The Company may assign any of its rights and obligations under this\nAgreement to any entity which is my employer. No other party to this Agreement may assign, whether voluntarily or by operation of\nlaw, any of its rights and obligations under this Agreement, except with the prior written consent of the Company.\n20.\nFurther Assurances. The parties agree to execute such further documents and instruments and to take such further\nactions as may be reasonably necessary to carry out the purposes and intent of this Agreement.\nSIGNED THIS 25th DAY OF OCTOBER 2017\n/s/ Yu Zhou\nYu Zhou\nGENEXOSOME TECHNOLOGIES INC.\nBy: /s/David Jin\nName: David Jin\nTitle: Co-CEO\n5
4f0e455a90c53f8e40e09d324aab4ea3.pdf	effective_date jurisdiction party term	EX-99.2 3 ko8k22807x99-2.htm FULL AND COMPLETE RELEASE AND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nEXHIBIT 99.2\nFULL AND COMPLETE RELEASE\nAND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nExecutive Release.\nI, Mary Minnick, in consideration of severance benefit payments under The Coca-Cola Company Severance Pay Plan (the “Company\nSeverance Plan”), the payments and benefits described in the attached letter dated February 28, 2007 (the “Separation Letter”), and other good\nand valuable consideration, for myself and my heirs, executors, administrators and assigns, do hereby knowingly and voluntarily release and\nforever discharge The Coca-Cola Company and its subsidiaries, affiliates, joint ventures, joint venture partners, and benefit plans (collectively\nthe “Company"), and their respective current and former directors, officers, administrators, trustees, employees, agents, and other representatives,\nfrom all debts, claims, actions, causes of action (including without limitation those under the Fair Labor Standards Act of 1938, as amended,\n29 U.S.C . § 201 et seq.; the Employee Retirement Income Security Act of 1974, as amended, 29 U.S .C . § 1001 et seq.; the Worker Adjustment\nand Retraining Notification Act of 1988, 29 U.S.C . § 2101 et seq.; and those federal, state, local, and foreign laws prohibiting employment\ndiscrimination based on age, sex, race, color, national origin, religion, disability, veteran or marital status, sexual orientation, or any other\nprotected trait or characteristic, or retaliation for engaging in any protected activity, including without limitation the Age Discrimination in\nEmployment Act of 1967, 29 U.S.C . § 621 et seq., as amended by the Older Workers Benefit Protection Act, P.L . 101 -433; the Equal Pay Act of\n1963, 9 U.S.C .§ 206, et seq.; Title VII of The Civil Rights Act of 1964, as amended, 42 U.S.C . § 2000e et seq.; the Civil Rights Act of 1866,\n42 U.S.C . § 1981; the Civil Rights Act of 1991, 42 U.S .C . § 1981a; the Americans with Disabilities Act, 42 U.S.C . § 12101 et seq.; the\nRehabilitation Act of 1973, 29 U.S.C . § 791 et seq.; the Family and Medical Leave Act of 1993, 28 U.S .C . §§ 2601 and 2611 et seq.; and\ncomparable state, local, and foreign causes of action, whether statutory or common law), suits, dues, sums of money, accounts, reckonings,\ncovenants, contracts, claims for costs or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever,\nat law, in equity, or otherwise, KNOWN OR UNKNOWN, fixed or contingent, which I ever had, now have, or may have, or which I, my heirs,\nexecutors, administrators or assigns hereafter can, shall, or may have, from the beginning of time through and including February 28, 2007 (the\n“Effective Date”), including without limitation those arising out of or related to my employment or separation from employment with the\nCompany. This Full and Complete Release and Agreement on Competition, Trade Secrets and Confidentiality is sometimes herein referred to as\nthe “Agreement.”\nNotwithstanding the foregoing, it is understood and agreed that I do not hereby waive, but rather I have retained and shall continue to\nhave all rights and entitlements to receive and the Company shall remain obligated to fully perform and pay (or cause to be performed or paid)\n(i) all amounts or payments owed to me as contemplated under the Separation Letter, (ii) all of my rights to seek and receive indemnification\nfrom the Company for and with respect to all acts, errors or omissions committed by me in my capacity as a shareholder, director, officer,\nemployee, fiduciary, agent or representative of the Company all in the manner provided under the Company’s by-laws (as hereinafter\ncontemplated) and applicable law, and (iii) all of my accrued and vested benefits (including pension or deferred compensation benefits) as\ndetermined through and including the Effective Date under the Company’s applicable and governing plans and programs including without\nlimitation all rights received or attributable to any coverage extended me under any insurance policies maintained with or through third parties.\nI fully understand and agree that:\n1.\nthis Agreement is in exchange for severance benefits under the Company Severance Plan, the payments and benefits\ndescribed in the Separation Letter, and other special compensation to which I would otherwise not be entitled;\n2.\nI am hereby advised to consult with an attorney before signing this Agreement;\n3.\nI have 21 days from my receipt of this Agreement within which to consider whether to sign it;\n4.\nI have seven days following my signature of this Agreement to revoke the Agreement; and\n5.\nthis Agreement shall not become effective or enforceable until the revocation period of seven days has expired.\nIf I choose to revoke this Agreement, I must do so by notifying the Company in writing.\nIf there is any claim for loss of consortium, or any other similar claim, arising out of or related to my employment or separation of\nemployment with the Company, I will indemnify and hold the Company harmless from any liability, including costs and expenses (as well as\nreasonable attorneys' fees) incurred by the Company as a result of any such claim.\nI additionally understand and agree that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of the Company or any of the other persons or entities hereby released.\nCompany Release.\nFor and in consideration of my release of the Company under the preceding provisions and my undertaking of all covenants and\nagreements provided under this Agreement and other good and valuable consideration, the Company (as defined herein) does hereby knowingly\nand voluntarily release and forever discharge me and my heirs, executors, administrators and assigns (collectively the “Executive Released\nParties"), from all debts, claims, actions, causes of action, suits, dues, sums of money, accounts, reckonings, covenants, contracts, claims for\ncosts or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever, at law, in equity, or otherwise,\nKNOWN OR UNKNOWN, fixed or contingent, which the Company ever had, now have, or may have, or which the Company hereafter can,\nshall, or may have, from the beginning of time through and including the Effective Date, including without limitation those arising out of or\nrelated to my employment or my separation from employment with the Company.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have\nretained and continue to have all rights and entitlements to enforce all of its rights and my obligations as against me as provided or contemplated\nunder and in accordance with the terms of this Agreement or the Separation Letter.\nIt is further understood and agreed that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of any one or more of the Executive Released Parties.\nFuture Cooperation.\nI covenant and agree that I shall, to the extent reasonably requested in writing, fully cooperate with the Company in any investigation\nand/or threatened or pending litigation (now or in the future) in which the Company is a party or by which the Company is directly affected, and\nregarding matters which I, by virtue of my employment with the Company, have knowledge or information relevant to said litigation, including,\nbut not limited to (i) meeting with representatives of the Company to prepare for testimony and to provide truthful information regarding my\nknowledge, and (ii) providing, in any jurisdiction in which the Company requests, truthful testimony relevant to said litigation; provided that in\nall events the Company shall (a) reimburse me for actual and reasonable expenses incurred in connection with such cooperation including all\ntravel, lodging and accommodations, (b) remain and be exclusively responsible for all costs incurred in undertaking such litigation including all\nattorneys’ fees, court costs, and other expenses consistent with the Company’s by-laws, and (c) notify me as promptly as possible as to its need\nfor my assistance and cooperate with me in scheduling my participation so as to reasonably accommodate my other personal and professional\nobligations and commitments.\nTrade Secrets and Confidential Information.\nI covenant and agree that I have held and shall continue to hold in confidence all Trade Secrets of the Company that came into my\nknowledge during my employment by the Company and shall not disclose, publish or make use of at any time such Trade Secrets for as long as\nthe information remains a Trade Secret. "Trade Secret" means any technical or non-technical data, formula, pattern, compilation, program,\ndevice, method, technique, drawing, process, financial data, financial plan, product plan, list of actual or potential customers or suppliers or other\ninformation similar to any of the foregoing, which (i) derives economic value, actual or potential, from not being generally known to and not\nbeing readily ascertainable by proper means by, other persons who can derive economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\nI also covenant and agree that, for the period beginning on the date I sign this Agreement and ending on February 28, 2009 (the\n“Nondisclosure Period”), I will hold in confidence all Confidential Information of the Company that came into my knowledge during my\nemployment by the Company and will not disclose, publish or make use of such Confidential Information. "Confidential Information" means any\ndata or information, other than Trade Secrets, that is valuable to the Company and not generally known to the public or to competitors of the\nCompany but shall not include either (i) any information which is available from any public source other than by means of my disclosure of such\ninformation to such source, or (ii) any information generated by me in the course of my employment which consists of contact information\nrelated to my personal or professional affiliations consisting solely of names, addresses, phone numbers and e-mail addresses.\n2\nThe restrictions stated in this Agreement are in addition to and not in lieu of protections afforded to trade secrets and confidential\ninformation under applicable state law. Nothing in this Agreement is intended to or shall be interpreted as diminishing or otherwise limiting the\nCompany’s right under applicable state law. Notwithstanding the foregoing, nothing contained herein shall prevent me from disclosing or\notherwise utilizing any information (i) in any manner required by applicable law, judicial order or other governmental mandate or investigation\nprovided I shall advise the Company of any such intended disposition or use and reasonably cooperate with the Company in allowing the\nCompany to seek and obtain from the recipient governmental or judicial body any protective order or assurance of confidentiality regarding such\ninformation or (ii) in fulfillment of my duties or obligations owed to the Company.\nReturn of Materials.\nI further covenant and agree that I have or shall promptly deliver to the Company all memoranda, notes, records, manuals or other\ndocuments, including all copies of such materials and all documentation prepared or produced in connection therewith, containing Trade Secrets\nor Confidential Information regarding the Company's business, whether made or compiled by me or furnished to me by virtue of my employment\nwith the Company. I shall promptly deliver to the Company all vehicles, computers, credit cards, telephones, handheld electronic devices, office\nequipment, and other property furnished to me by virtue of my employment with the Company.\nNo Publicity.\nExcept as otherwise authorized or agreed to by the Chief Executive Officer of the Company (the “CEO”), during the Nondisclosure\nPeriod, I will not publish any opinion, fact, or material, deliver any lecture or address, participate in the making of any film, radio broadcast or\ntelevision transmission, or communicate with any representative of the media relating to confidential matters regarding the business or affairs of\nthe Company which I was involved with during my employment; provided, that nothing contained herein shall prevent me from undertaking any\nsuch activities otherwise prohibited hereunder with respect to presentations focusing on me and my personal experience or knowledge which\nmay include ancillary and historical recitations of my past experiences with the Company and which do not otherwise involve disclosure of\nmatters or materials which have not been previously or otherwise publicly released.\nNon Compete and Non Solicitation.\nDefinitions.\nFor the purposes of this Section, in addition to all other terms defined under this Agreement, the following definitions apply:\n(a)\n"Non Solicitation Period" means the period beginning on the date I sign this Agreement and ending on February 28,\n2009.\n(b)\n“Restricted Activities” means the development or oversight of marketing, innovation, operation or financial\nactivities or strategies for Restricted Businesses.\n(c)\n"Territory" means any location in which the Company conducts business.\n(d)\n“Restricted Businesses” means 1) companies whose primary business is the manufacture, sale, distribution and\nmarketing of carbonated soft drinks, coffee, tea, milk, water, juices or fruit-based beverages (“Non-alcoholic Beverages”) and 2) companies a\nsubstantial portion of whose business activities includes the manufacture, sale, distribution and marketing of Non-alcoholic Beverages, but for\nwhom such business(es) may not be the company’s primary business (“Non-Beverage Companies”).\n(e)\n“Competing Business Segment” means any subsidiary, division or unit of the business of a company, other than a\nProhibited Company, where such subsidiary, division or unit manufactures, sells, distributes or markets Non-alcoholic Beverages.\n(f)\n“Prohibited Companies” shall mean each of (i) PepsiCo, Inc. or its subsidiaries or affiliates including members of the\nPepsi Bottling Group, (ii) Groupe Danone, (iii) Nestle S.A., (iv) Cadbury Schweppes, plc, and (v) Cott Corporation, all of which aforenamed\ncompanies engage in the Restricted Business.\n(g)\n“Release Payment” shall mean an amount equal to the difference between (i) the total base salary paid to me under\nthe Company Severance Plan, whether in a lump sum or in a series of payments, for any period commencing or occurring from and after March\n1, 2007 (such amount being anticipated as totaling $1,261,260) less (ii) any amounts charged or withheld from those payments (including all\nunemployment, FICA or similar non income taxes) described under subclause (i) hereof other than local, state or federal income taxes paid and\ncredited to me or any other deductions therefrom applied in satisfaction of obligations owed or benefits received by me.\n3\nNon Compete.\nI hereby covenant with the Company that I will not, within the Territory prior to February 28, 2009, without the prior written\nconsent of the CEO, engage in any Restricted Activities for or on behalf of (including in a consulting capacity) any one or more of the Prohibited\nCompanies (those activities in which I am so prohibited from engaging under this sentence being herein referred to as the “Absolute Activities”).\nSubject to the exceptions and conditions hereinafter specified, I hereby further covenant with the Company that I will not, within the Territory\nprior to February 28, 2008, without the prior written consent of the CEO, engage in any Restricted Activities for or on behalf of (including in a\nconsulting capacity) any Restricted Business other than the Prohibited Companies (those activities from which I am prohibited from engaging\nunder this sentence being herein referred to as the “Conditional Activities”). Notwithstanding the foregoing, in all events it is agreed that I shall\nnot be prohibited hereunder and shall remain entitled to perform either (i) services for Non-Beverage Companies (other than the Prohibited\nCompanies) that have a Competing Business Segment, provided I do not perform services for such Competing Business Segment, and provided\nfurther that I notify the CEO of the nature of any such services being rendered to any Non-Beverage Companies in writing within a reasonable\ntime prior to beginning performance of such services, (ii) services for any companies or other entities which do not engage in the Restricted\nBusiness within the Territory, (iii) Absolute Activities from and after March 1, 2009, or (iv) Conditional Activities from and after March 1,\n2008.\nNon Solicitation of Employees.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit for employment for or on behalf of any corporation, partnership, venture or other business\nentity any person who, on the last day of my employment with the Company or within six months prior to that date, was employed by the\nCompany as a manager or executive and with whom I had professional interaction during the last twelve months of my employment with the\nCompany (whether or not such person would commit a breach of contract).\nNon Solicitation of Customers.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture, sale,\ndistribution and marketing of Non-alcoholic Beverages for any Prohibited Company from any of the Company’s customers, including actively\nsought prospective customers, with whom I had professional interaction during my employment with the Company (those activities from which I\nam prohibited from engaging under this sentence being herein referred to as the “Absolute Solicitations”). Subject to the exceptions and\nconditions hereinafter specified, I hereby further covenant and agree that I will not, within the Territory, on or prior to February 28, 2008, without\nthe prior written consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture,\nsale, distribution and marketing of Non-alcoholic Beverages for any Competing Business Segment of the Restricted Businesses from any of the\nCompany’s customers, including actively sought prospective customers, with whom I had professional interaction during my employment with\nthe Company (those activities from which I am prohibited from engaging under this sentence being herein referred to as the “Conditional\nSolicitations”). Notwithstanding the foregoing, in all events it is agreed that I shall not be prohibited hereunder and shall remain entitled to\nundertake either (i) solicitations for any companies or other entities which do not engage in the Restricted Business within the Territory, (ii)\nAbsolute Solicitations from and after March 1, 2009, or (iii) Conditional Solicitations from and after March 1, 2008.\n4\nRelease.\nNotwithstanding the foregoing, it is agreed that in the event I shall desire to engage in any Conditional Activities and/or Conditional\nSolicitations otherwise prohibited hereunder prior to March 1, 2008, then prior to my commencing performance of such Conditional Activities\nand/or Conditional Solicitations, I shall notify the CEO of such intention seeking the Company’s consent to my undertaking of same which\nconsent the CEO shall cause the Company to consider in good faith and within its reasonable discretion. Upon receipt of such request, the CEO\nshall promptly, but in all events within ten business days, notify me in writing of the Company’s granting of its consent to my undertaking of\nsuch Conditional Activities and/or Conditional Solicitations or the Company’s decision to refuse its granting of such consent. In the event the\nCompany refuses to consent to my undertaking of any such Conditional Activities and/or Conditional Solicitations hereunder, I may, at my sole\nelection and upon paying to the Company the Release Payment, be entitled to fully undertake any Conditional Activities and/or Conditional\nSolicitations without same being subject to any further restriction or prohibition hereunder, except as otherwise limited by applicable law. Upon\nmy remittance of the Release Payment to the Company hereunder, the Company shall accept same as full, complete and exclusive liquidated\ndamages and shall have no rights or entitlements to enforce or seek enforcement of my covenant and agreement not to engage in any Conditional\nActivities or Conditional Solicitations hereunder and shall not have and hereby waive, release and relinquish any and all claims, assertion or\ndamages the Company may have by reason or in connection with my undertaking of any Conditional Activities and/or Conditional Solicitations.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have retained\nthe right to enforce all other provisions of this Agreement, including but not limited to my agreement not to engage in any Absolute Activities or\nAbsolute Solicitations hereunder and my obligations not to disclose Trade Secrets and Confidential Information and that my release from the\nprohibition against my undertaking of any Conditional Activities and Conditional Solicitations hereunder shall not relieve me from my covenant\nand agreement not to engage in any Absolute Activities or Absolute Solicitations hereunder or my obligations not to disclose Trade Secrets or\nConfidential Information pursuant to this Agreement or applicable law.\nReasonable and Necessary Restrictions.\nI acknowledge that during the course of my employment with the Company I have received or will receive and had or will have access\nto Confidential Information and Trade Secrets of the Company, including but not limited to confidential and secret business and marketing plans,\nstrategies, and studies, detailed client/customer/bottler lists and information relating to the operations and business requirements of those\nclients/customers/bottlers and, accordingly, I am willing to enter into the covenants contained in this Agreement in order to provide the Company\nwith what I consider to be reasonable protection for its interests.\nI acknowledge that the restrictions, prohibitions and other provisions hereof, are reasonable, fair and equitable in scope, terms and\nduration, and are necessary to protect the legitimate business interests of the Company.\nSubject to my being released from the prohibition against my undertaking of Conditional Activities and Conditional Solicitations upon\nmy remittance of the Release Payment as contemplated hereunder, I acknowledge and agree that in the event I breach, or threaten in any way to\nbreach, or it is inevitable that I will breach, any of the provisions of this Agreement, damages shall be an inadequate remedy and the Company\nshall be entitled, without bond, to injunctive or other equitable relief in addition to all other rights otherwise available to the Company at law or\nin equity.\nIndemnification.\nNothing in this Agreement shall affect any rights I may have under Article VII of the Company’s by-laws in effect as of the date of this\nAgreement.\n5\nNon-Disparagement.\nI agree that I will not make any statement, written or verbal, in any forum or media, or take any action in disparagement of the\nCompany, including but not limited to negative references to the Company or its products, services, corporate policies, or current or former\nofficers or employees, customers, suppliers, or business partners or associates. The Company agrees that neither it nor any of its executives or\nsenior management level employees will make any statement, written or verbal, in any forum or media, or take any action in disparagement of\nme, including but not limited to negative references to me or my levels of competency or aptitudes.\nComplete Agreement.\nThis Agreement together with the Separation Letter is the complete understanding between me and the Company in respect of the\nsubject matter of this Agreement and supersedes all prior agreements relating to the same subject matter. I have not relied upon any\nrepresentations, promises or agreements of any kind except those set forth herein and in the Separation Letter in signing this Agreement.\nSeverability.\nIn the event that any provision of this Agreement should be held to be invalid or unenforceable, each and all of the other provisions of\nthis Agreement shall remain in full force and effect. If any provision of this Agreement is found to be invalid or unenforceable, such provision\nshall be modified as necessary to permit this Agreement to be upheld and enforced to the maximum extent permitted by law.\nGoverning Law.\nExcept to the extent preempted by Federal Law, this Agreement is to be governed and enforced under the laws of the State of Georgia\n(except to the extent that Georgia conflicts of law rules would call for the application of the law of another jurisdiction) and any and all disputes\narising under this Agreement are to be resolved exclusively by courts sitting in Georgia. I hereby consent to the jurisdiction of such courts.\nSuccessors and Assigns.\nThis Agreement inures to the benefit of the Company and its successors and assigns and to the benefit of my heirs, executors,\nadministrators, to the extent not precluded by the Company’s benefit or compensation plans.\nAmendment/Waiver.\nNo amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed by\neach of the parties hereto.\nAcknowledgment.\nEach of the undersigned have carefully read this Agreement, fully understand each of its terms and conditions, and intend to abide by\nthis Agreement in every respect. As such, each of the undersigned individually or through its duly authorized officers knowingly and voluntarily\nsigns this Agreement under her or its respective hand and seal as her or its respective legally binding and enforceable obligation.\n/s/ Mary Minnick\nMary Minnick\nDate: February 28, 2007\nTHE COCA-COLA COMPANY\nBy: /s/ Geoffrey J. Kelly____________\nTitle: Vice President and General Counsel\nDate: February 28, 2007	EX-99.2 3 ko8k22807x99-2.htm FULL AND COMPLETE RELEASE AND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nEXHIBIT 99.2\nFULL AND COMPLETE RELEASE\nAND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nExecutive Release.\nI, Mary Minnick, in consideration of severance benefit payments under The Coca-Cola Company Severance Pay Plan (the “Company\nSeverance Plan”), the payments and benefits described in the attached letter dated February 28, 2007 (the “Separation Letter”), and other good\nand valuable consideration, for myself and my heirs, executors, administrators and assigns, do hereby knowingly and voluntarily release and\nforever discharge The Coca-Cola Company and its subsidiaries, affiliates, joint ventures, joint venture partners, and benefit plans (collectively\nthe “Company"), and their respective current and former directors, officers, administrators, trustees, employees, agents, and other representatives,\nfrom all debts, claims, actions, causes of action (including without limitation those under the Fair Labor Standards Act of 1938, as amended,\n29 U.S.C. § 201 et seq.; the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq.; the Worker Adjustment\nand Retraining Notification Act of 1988, 29 U.S.C. § 2101 et seq.; and those federal, state, local, and foreign laws prohibiting employment\ndiscrimination based on age, sex, race, color, national origin, religion, disability, veteran or marital status, sexual orientation, or any other\nprotected trait or characteristic, or retaliation for engaging in any protected activity, including without limitation the Age Discrimination in\nEmployment Act of 1967, 29 U.S.C. § 621 et seq., as amended by the Older Workers Benefit Protection Act, P.L.. 101-433; the Equal Pay Act of\n1963, 9 U.S.C.§ 206, et seq.; Title VII of The Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1866,\n42 U.S.C. § 1981; the Civil Rights Act of 1991, 42 U.S.C. § 1981a; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; the\nRehabilitation Act of 1973, 29 U.S.C. § 791 et seq.; the Family and Medical Leave Act of 1993, 28 U.S.C. §8§ 2601 and 2611 et seq.; and\ncomparable state, local, and foreign causes of action, whether statutory or common law), suits, dues, sums of money, accounts, reckonings,\ncovenants, contracts, claims for costs or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever,\nat law, in equity, or otherwise, KNOWN OR UNKNOWN, fixed or contingent, which I ever had, now have, or may have, or which I, my heirs,\nexecutors, administrators or assigns hereafter can, shall, or may have, from the beginning of time through and including February 28, 2007 (the\n“Effective Date”), including without limitation those arising out of or related to my employment or separation from employment with the\nCompany. This Full and Complete Release and Agreement on Competition, Trade Secrets and Confidentiality is sometimes herein referred to as\nthe “Agreement.”\nNotwithstanding the foregoing, it is understood and agreed that I do not hereby waive, but rather I have retained and shall continue to\nhave all rights and entitlements to receive and the Company shall remain obligated to fully perform and pay (or cause to be performed or paid)\n(i) all amounts or payments owed to me as contemplated under the Separation Letter, (ii) all of my rights to seek and receive indemnification\nfrom the Company for and with respect to all acts, errors or omissions committed by me in my capacity as a shareholder, director, officer,\nemployee, fiduciary, agent or representative of the Company all in the manner provided under the Company’s by-laws (as hereinafter\ncontemplated) and applicable law, and (iii) all of my accrued and vested benefits (including pension or deferred compensation benefits) as\ndetermined through and including the Effective Date under the Company’s applicable and governing plans and programs including without\nlimitation all rights received or attributable to any coverage extended me under any insurance policies maintained with or through third parties.\nI fully understand and agree that:\n1. this Agreement is in exchange for severance benefits under the Company Severance Plan, the payments and benefits\ndescribed in the Separation Letter, and other special compensation to which I would otherwise not be entitled,;\n2. I am hereby advised to consult with an attorney before signing this Agreement;\n3. I have 21 days from my receipt of this Agreement within which to consider whether to sign it;\n4. I have seven days following my signature of this Agreement to revoke the Agreement; and\n5. this Agreement shall not become effective or enforceable until the revocation period of seven days has expired.\nIf I choose to revoke this Agreement, I must do so by notifying the Company in writing.\nIf there is any claim for loss of consortium, or any other similar claim, arising out of or related to my employment or separation of\nemployment with the Company, I will indemnify and hold the Company harmless from any liability, including costs and expenses (as well as\nreasonable attorneys' fees) incurred by the Company as a result of any such claim.\nI additionally understand and agree that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of the Company or any of the other persons or entities hereby released.\nCompany Release.\nFor and in consideration of my release of the Company under the preceding provisions and my undertaking of all covenants and\nagreements provided under this Agreement and other good and valuable consideration, the Company (as defined herein) does hereby knowingly\nand voluntarily release and forever discharge me and my heirs, executors, administrators and assigns (collectively the “Executive Released\nParties"), from all debts, claims, actions, causes of action, suits, dues, sums of money, accounts, reckonings, covenants, contracts, claims for\ncosts or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever, at law, in equity, or otherwise,\nKNOWN OR UNKNOWN, fixed or contingent, which the Company ever had, now have, or may have, or which the Company hereafter can,\nshall, or may have, from the beginning of time through and including the Effective Date, including without limitation those arising out of or\nrelated to my employment or my separation from employment with the Company.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have\nretained and continue to have all rights and entitlements to enforce all of its rights and my obligations as against me as provided or contemplated\nunder and in accordance with the terms of this Agreement or the Separation Letter.\nIt is further understood and agreed that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of any one or more of the Executive Released Parties.\nFuture Cooperation.\nI covenant and agree that I shall, to the extent reasonably requested in writing, fully cooperate with the Company in any investigation\nand/or threatened or pending litigation (now or in the future) in which the Company is a party or by which the Company is directly affected, and\nregarding matters which I, by virtue of my employment with the Company, have knowledge or information relevant to said litigation, including,\nbut not limited to (i) meeting with representatives of the Company to prepare for testimony and to provide truthful information regarding my\nknowledge, and (ii) providing, in any jurisdiction in which the Company requests, truthful testimony relevant to said litigation; provided that in\nall events the Company shall (a) reimburse me for actual and reasonable expenses incurred in connection with such cooperation including all\ntravel, lodging and accommodations, (b) remain and be exclusively responsible for all costs incurred in undertaking such litigation including all\nattorneys’ fees, court costs, and other expenses consistent with the Company’s by-laws, and (c) notify me as promptly as possible as to its need\nfor my assistance and cooperate with me in scheduling my participation so as to reasonably accommodate my other personal and professional\nobligations and commitments.\nTrade Secrets and Confidential Information.\nI covenant and agree that I have held and shall continue to hold in confidence all Trade Secrets of the Company that came into my\nknowledge during my employment by the Company and shall not disclose, publish or make use of at any time such Trade Secrets for as long as\nthe information remains a Trade Secret. "Trade Secret" means any technical or non-technical data, formula, pattern, compilation, program,\ndevice, method, technique, drawing, process, financial data, financial plan, product plan, list of actual or potential customers or suppliers or other\ninformation similar to any of the foregoing, which (i) derives economic value, actual or potential, from not being generally known to and not\nbeing readily ascertainable by proper means by, other persons who can derive economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\nI also covenant and agree that, for the period beginning on the date I sign this Agreement and ending on February 28, 2009 (the\n“Nondisclosure Period”), I will hold in confidence all Confidential Information of the Company that came into my knowledge during my\nemployment by the Company and will not disclose, publish or make use of such Confidential Information. "Confidential Information" means any\ndata or information, other than Trade Secrets, that is valuable to the Company and not generally known to the public or to competitors of the\nCompany but shall not include either (i) any information which is available from any public source other than by means of my disclosure of such\ninformation to such source, or (ii) any information generated by me in the course of my employment which consists of contact information\nrelated to my personal or professional affiliations consisting solely of names, addresses, phone numbers and e-mail addresses.\nThe restrictions stated in this Agreement are in addition to and not in lieu of protections afforded to trade secrets and confidential\ninformation under applicable state law. Nothing in this Agreement is intended to or shall be interpreted as diminishing or otherwise limiting the\nCompany’s right under applicable state law. Notwithstanding the foregoing, nothing contained herein shall prevent me from disclosing or\notherwise utilizing any information (i) in any manner required by applicable law, judicial order or other governmental mandate or investigation\nprovided I shall advise the Company of any such intended disposition or use and reasonably cooperate with the Company in allowing the\nCompany to seek and obtain from the recipient governmental or judicial body any protective order or assurance of confidentiality regarding such\ninformation or (ii) in fulfillment of my duties or obligations owed to the Company.\nReturn of Materials.\nI further covenant and agree that I have or shall promptly deliver to the Company all memoranda, notes, records, manuals or other\ndocuments, including all copies of such materials and all documentation prepared or produced in connection therewith, containing Trade Secrets\nor Confidential Information regarding the Company's business, whether made or compiled by me or furnished to me by virtue of my employment\nwith the Company. I shall promptly deliver to the Company all vehicles, computers, credit cards, telephones, handheld electronic devices, office\nequipment, and other property furnished to me by virtue of my employment with the Company.\nNo Publicity.\nExcept as otherwise authorized or agreed to by the Chief Executive Officer of the Company (the “CEO”), during the Nondisclosure\nPeriod, I will not publish any opinion, fact, or material, deliver any lecture or address, participate in the making of any film, radio broadcast or\ntelevision transmission, or communicate with any representative of the media relating to confidential matters regarding the business or affairs of\nthe Company which I was involved with during my employment; provided, that nothing contained herein shall prevent me from undertaking any\nsuch activities otherwise prohibited hereunder with respect to presentations focusing on me and my personal experience or knowledge which\nmay include ancillary and historical recitations of my past experiences with the Company and which do not otherwise involve disclosure of\nmatters or materials which have not been previously or otherwise publicly released.\nNon Compete and Non Solicitation.\nDefinitions.\nFor the purposes of this Section, in addition to all other terms defined under this Agreement, the following definitions apply:\n(a) "Non Solicitation Period" means the period beginning on the date I sign this Agreement and ending on February 28,\n2009.\n(b) “Restricted Activities” means the development or oversight of marketing, innovation, operation or financial\nactivities or strategies for Restricted Businesses.\n(0 "Territory" means any location in which the Company conducts business.\n(d) “Restricted Businesses” means 1) companies whose primary business is the manufacture, sale, distribution and\nmarketing of carbonated soft drinks, coffee, tea, milk, water, juices or fruit-based beverages (“Non-alcoholic Beverages”) and 2) companies a\nsubstantial portion of whose business activities includes the manufacture, sale, distribution and marketing of Non-alcoholic Beverages, but for\nwhom such business(es) may not be the company’s primary business (“Non-Beverage Companies™).\n(e) “Competing Business Segment” means any subsidiary, division or unit of the business of a company, other than a\nProhibited Company, where such subsidiary, division or unit manufactures, sells, distributes or markets Non-alcoholic Beverages.\n® “Prohibited Companies” shall mean each of (i) PepsiCo, Inc. or its subsidiaries or affiliates including members of the\nPepsi Bottling Group, (ii) Groupe Danone, (iii) Nestle S.A., (iv) Cadbury Schweppes, plc, and (v) Cott Corporation, all of which aforenamed\ncompanies engage in the Restricted Business.\n(8 “Release Payment” shall mean an amount equal to the difference between (i) the total base salary paid to me under\nthe Company Severance Plan, whether in a lump sum or in a series of payments, for any period commencing or occurring from and after March\n1, 2007 (such amount being anticipated as totaling $1,261,260) less (ii) any amounts charged or withheld from those payments (including all\nunemployment, FICA or similar non income taxes) described under subclause (i) hereof other than local, state or federal income taxes paid and\ncredited to me or any other deductions therefrom applied in satisfaction of obligations owed or benefits received by me.\n3\nNon Compete.\nI hereby covenant with the Company that I will not, within the Territory prior to February 28, 2009, without the prior written\nconsent of the CEO, engage in any Restricted Activities for or on behalf of (including in a consulting capacity) any one or more of the Prohibited\nCompanies (those activities in which I am so prohibited from engaging under this sentence being herein referred to as the “Absolute Activities”).\nSubject to the exceptions and conditions hereinafter specified, I hereby further covenant with the Company that I will not, within the Territory\nprior to February 28, 2008, without the prior written consent of the CEO, engage in any Restricted Activities for or on behalf of (including in a\nconsulting capacity) any Restricted Business other than the Prohibited Companies (those activities from which I am prohibited from engaging\nunder this sentence being herein referred to as the “Conditional Activities”). Notwithstanding the foregoing, in all events it is agreed that I shall\nnot be prohibited hereunder and shall remain entitled to perform either (i) services for Non-Beverage Companies (other than the Prohibited\nCompanies) that have a Competing Business Segment, provided I do not perform services for such Competing Business Segment, and provided\nfurther that I notify the CEO of the nature of any such services being rendered to any Non-Beverage Companies in writing within a reasonable\ntime prior to beginning performance of such services, (ii) services for any companies or other entities which do not engage in the Restricted\nBusiness within the Territory, (iii) Absolute Activities from and after March 1, 2009, or (iv) Conditional Activities from and after March 1,\n2008.\nNon Solicitation of Employees.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit for employment for or on behalf of any corporation, partnership, venture or other business\nentity any person who, on the last day of my employment with the Company or within six months prior to that date, was employed by the\nCompany as a manager or executive and with whom I had professional interaction during the last twelve months of my employment with the\nCompany (whether or not such person would commit a breach of contract).\nNon Solicitation of Customers.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture, sale,\ndistribution and marketing of Non-alcoholic Beverages for any Prohibited Company from any of the Company’s customers, including actively\nsought prospective customers, with whom I had professional interaction during my employment with the Company (those activities from which I\nam prohibited from engaging under this sentence being herein referred to as the “Absolute Solicitations”). Subject to the exceptions and\nconditions hereinafter specified, I hereby further covenant and agree that I will not, within the Territory, on or prior to February 28, 2008, without\nthe prior written consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture,\nsale, distribution and marketing of Non-alcoholic Beverages for any Competing Business Segment of the Restricted Businesses from any of the\nCompany’s customers, including actively sought prospective customers, with whom I had professional interaction during my employment with\nthe Company (those activities from which I am prohibited from engaging under this sentence being herein referred to as the “Conditional\nSolicitations”). Notwithstanding the foregoing, in all events it is agreed that I shall not be prohibited hereunder and shall remain entitled to\nundertake either (i) solicitations for any companies or other entities which do not engage in the Restricted Business within the Territory, (ii)\nAbsolute Solicitations from and after March 1, 2009, or (iii) Conditional Solicitations from and after March 1, 2008.\nRelease.\nNotwithstanding the foregoing, it is agreed that in the event I shall desire to engage in any Conditional Activities and/or Conditional\nSolicitations otherwise prohibited hereunder prior to March 1, 2008, then prior to my commencing performance of such Conditional Activities\nand/or Conditional Solicitations, I shall notify the CEO of such intention seeking the Company’s consent to my undertaking of same which\nconsent the CEO shall cause the Company to consider in good faith and within its reasonable discretion. Upon receipt of such request, the CEO\nshall promptly, but in all events within ten business days, notify me in writing of the Company’s granting of its consent to my undertaking of\nsuch Conditional Activities and/or Conditional Solicitations or the Company’s decision to refuse its granting of such consent. In the event the\nCompany refuses to consent to my undertaking of any such Conditional Activities and/or Conditional Solicitations hereunder, I may, at my sole\nelection and upon paying to the Company the Release Payment, be entitled to fully undertake any Conditional Activities and/or Conditional\nSolicitations without same being subject to any further restriction or prohibition hereunder, except as otherwise limited by applicable law. Upon\nmy remittance of the Release Payment to the Company hereunder, the Company shall accept same as full, complete and exclusive liquidated\ndamages and shall have no rights or entitlements to enforce or seek enforcement of my covenant and agreement not to engage in any Conditional\nActivities or Conditional Solicitations hereunder and shall not have and hereby waive, release and relinquish any and all claims, assertion or\ndamages the Company may have by reason or in connection with my undertaking of any Conditional Activities and/or Conditional Solicitations.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have retained\nthe right to enforce all other provisions of this Agreement, including but not limited to my agreement not to engage in any Absolute Activities or\nAbsolute Solicitations hereunder and my obligations not to disclose Trade Secrets and Confidential Information and that my release from the\nprohibition against my undertaking of any Conditional Activities and Conditional Solicitations hereunder shall not relieve me from my covenant\nand agreement not to engage in any Absolute Activities or Absolute Solicitations hereunder or my obligations not to disclose Trade Secrets or\nConfidential Information pursuant to this Agreement or applicable law.\nReasonable and Necessary Restrictions.\nI acknowledge that during the course of my employment with the Company I have received or will receive and had or will have access\nto Confidential Information and Trade Secrets of the Company, including but not limited to confidential and secret business and marketing plans,\nstrategies, and studies, detailed client/customer/bottler lists and information relating to the operations and business requirements of those\nclients/customers/bottlers and, accordingly, I am willing to enter into the covenants contained in this Agreement in order to provide the Company\nwith what I consider to be reasonable protection for its interests.\nI acknowledge that the restrictions, prohibitions and other provisions hereof, are reasonable, fair and equitable in scope, terms and\nduration, and are necessary to protect the legitimate business interests of the Company.\nSubject to my being released from the prohibition against my undertaking of Conditional Activities and Conditional Solicitations upon\nmy remittance of the Release Payment as contemplated hereunder, I acknowledge and agree that in the event I breach, or threaten in any way to\nbreach, or it is inevitable that I will breach, any of the provisions of this Agreement, damages shall be an inadequate remedy and the Company\nshall be entitled, without bond, to injunctive or other equitable relief in addition to all other rights otherwise available to the Company at law or\nin equity.\nIndemnification.\nNothing in this Agreement shall affect any rights I may have under Article VII of the Company’s by-laws in effect as of the date of this\nAgreement.\nNon-Disparagement.\nI agree that I will not make any statement, written or verbal, in any forum or media, or take any action in disparagement of the\nCompany, including but not limited to negative references to the Company or its products, services, corporate policies, or current or former\nofficers or employees, customers, suppliers, or business partners or associates. The Company agrees that neither it nor any of its executives or\nsenior management level employees will make any statement, written or verbal, in any forum or media, or take any action in disparagement of\nme, including but not limited to negative references to me or my levels of competency or aptitudes.\nComplete Agreement.\nThis Agreement together with the Separation Letter is the complete understanding between me and the Company in respect of the\nsubject matter of this Agreement and supersedes all prior agreements relating to the same subject matter. I have not relied upon any\nrepresentations, promises or agreements of any kind except those set forth herein and in the Separation Letter in signing this Agreement.\nSeverability.\nIn the event that any provision of this Agreement should be held to be invalid or unenforceable, each and all of the other provisions of\nthis Agreement shall remain in full force and effect. If any provision of this Agreement is found to be invalid or unenforceable, such provision\nshall be modified as necessary to permit this Agreement to be upheld and enforced to the maximum extent permitted by law.\nGoverning Law.\nExcept to the extent preempted by Federal Law, this Agreement is to be governed and enforced under the laws of the State of Georgia\n(except to the extent that Georgia conflicts of law rules would call for the application of the law of another jurisdiction) and any and all disputes\narising under this Agreement are to be resolved exclusively by courts sitting in Georgia. I hereby consent to the jurisdiction of such courts.\nSuccessors and Assigns.\nThis Agreement inures to the benefit of the Company and its successors and assigns and to the benefit of my heirs, executors,\nadministrators, to the extent not precluded by the Company’s benefit or compensation plans.\nAmendment/Waiver.\nNo amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed by\neach of the parties hereto.\nAcknowledgment.\nEach of the undersigned have carefully read this Agreement, fully understand each of its terms and conditions, and intend to abide by\nthis Agreement in every respect. As such, each of the undersigned individually or through its duly authorized officers knowingly and voluntarily\nsigns this Agreement under her or its respective hand and seal as her or its respective legally binding and enforceable obligation.\n/s/ Mary Minnick\nMary Minnick\nDate: February 28, 2007\nTHE COCA-COLA COMPANY\nBy: /s/ Geoffrey J. Kelly\nTitle: Vice President and General Counsel\nDate: February 28, 2007	EX-99.2 3 ko8k22807x99-2.htm FULL AND COMPLETE RELEASE AND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nEXHIBIT 99.2\nFULL AND COMPLETE RELEASE\nAND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nExecutive Release.\nI, Mary Minnick, in consideration of severance benefit payments under The Coca-Cola Company Severance Pay Plan (the "Company\nSeverance Plan"), the payments and benefits described in the attached letter dated February 28, 2007 (the "Separation Letter"), and other good\nand valuable consideration, for myself and my heirs, executors, administrators and assigns, do hereby knowingly and voluntarily release and\nforever discharge The Coca-Cola Company and its subsidiaries, affiliates, joint ventures, joint venture partners, and benefit plans (collectively\nthe "Company"), and their respective current and former directors, officers, administrators, trustees, employees, agents, and other representatives,\nfrom all debts, claims, actions, causes of action (including without limitation those under the Fair Labor Standards Act of 1938, as amended,\n29 U.S.C. S 201 et see; the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 8 1001 et see; the Worker Adjustment\nand Retraining Notification Act of 1988, 29 U.S.C. S 2101 et see; and those federal, state, local, and foreign laws prohibiting employment\ndiscrimination based on age, sex, race, color, national origin, religion, disability, veteran or marital status, sexual orientation, or any other\nprotected trait or characteristic, or retaliation for engaging in any protected activity, including without limitation the Age Discrimination in\nEmployment Act of 1967, 29 U.S.C. 8 621 et seq. as amended by the Older Workers Benefit Protection Act, P.L. 101-433; the Equa Pay Act of\n1963,\n9\nU.S.C.S 206, et see; Title VII of The Civil Rights Act of 1964, as amended, 42 U.S.C. 8 2000e et see; the Civil Rights Act of 1866,\n42 U.S.C. 8 1981; the Civil Rights Act of 1991, 42 U.S.C. 8 1981a; the Americans with Disabilities Act, 42 U.S.C. 8 12101 et seqe; the\nRehabilitation Act of 1973, 29 U.S.C. 8 791 et sege; the Family and Medical Leave Act of 1993, 28 U.S.C. 88 2601 and 2611 et seq.; and\ncomparable state, local, and foreign causes of action, whether statutory or common law), suits, dues, sums of money, accounts, reckonings,\ncovenants, contracts, claims for costs or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever,\nat\nlaw, in equity, or otherwise, KNOWN OR UNKNOWN, fixed or contingent, which I ever had, now have, or may have, or which I, my heirs,\nexecutors,\nadministrators\nor\nassigns\nhereafter\ncan,\nshall,\nor\nmay\nhave,\nfrom\nthe\nbeginning\nof\ntime\nthrough\nand\nincluding\nFebruary\n28,\n2007\n(the\n"Effective Date"), including without limitation those arising out of or related to my employment or separation from employment with the\nCompany. This Full and Complete Release and Agreement on Competition, Trade Secrets and Confidentiality is sometimes herein referred to as\nthe "Agreement."\nNotwithstanding the foregoing, it is understood and agreed that I do not hereby waive, but rather I have retained and shall continue to\nhave all rights and entitlements to receive and the Company shall remain obligated to fully perform and pay (or cause to be performed or paid)\n(i) all amounts or payments owed to me as contemplated under the Separation Letter, (ii) all of my rights to seek and receive indemnification\nfrom the Company for and with respect to all acts, errors or omissions committed by me in my capacity as a shareholder, director, officer,\nemployee, fiduciary, agent or representative of the Company all in the manner provided under the Company's by-laws (as hereinafter\ncontemplated) and applicable law, and (iii) all of my accrued and vested benefits (including pension or deferred compensation benefits) as\ndetermined through and including the Effective Date under the Company's applicable and governing plans and programs including without\nlimitation all rights received or attributable to any coverage extended me under any insurance policies maintained with or through third parties.\nI fully understand and agree that:\n1.\nthis Agreement is in exchange for severance benefits under the Company Severance Plan, the payments and benefits\ndescribed in the Separation Letter, and other special compensation to which I would otherwise not be entitled;\n2.\nI am hereby advised to consult with an attorney before signing this Agreement;\n3.\nI have 21 days from my receipt of this Agreement within which to consider whether to sign it;\n4.\nI have seven days following my signature of this Agreement to revoke the Agreement; and\n5.\nthis Agreement shall not become effective or enforceable until the revocation period of seven days has expired.\nIf I choose to revoke this Agreement, I must do so by notifying the Company in writing.\nIf there is any claim for loss of consortium, or any other similar claim, arising out of or related to my employment or separation of\nemployment with the Company, I will indemnify and hold the Company harmless from any liability, including costs and expenses (as well\nas\nreasonable attorneys' fees) incurred by the Company as a result of any such claim.\nI additionally understand and agree that this Agreement is not and shall not be construed to be an admission of liability of any kind\non\nthe part of the Company or any of the other persons or entities hereby released.\nCompany Release.\nFor and in consideration of my release of the Company under the preceding provisions and my undertaking of all covenants and\nagreements provided under this Agreement and other good and valuable consideration, the Company (as defined herein) does hereby knowingly\nand\nvoluntarily\nrelease\nand\nforever\ndischarge\nme\nand\nmy\nheirs,\nexecutors,\nadministrators\nand\nassigns\n(collectively\nthe\n"Executive\nReleased\nParties"), from all debts, claims, actions, causes of action, suits, dues, sums of money, accounts, reckonings, covenants, contracts, claims for\ncosts or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever, at law, in equity, or otherwise,\nKNOWN OR UNKNOWN, fixed or contingent, which the Company ever had, now have, or may have, or which the Company hereafter can,\nshall, or may have, from the beginning of time through and including the Effective Date, including without limitation those arising out of or\nrelated to my employment or my separation from employment with the Company.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have\nretained and continue to have all rights and entitlements to enforce all of its rights and my obligations as against me as provided or contemplated\nunder and in accordance with the terms of this Agreement or the Separation Letter.\nIt is further understood and agreed that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of any one or more of the Executive Released Parties.\nFuture Cooperation.\nI covenant and agree that I shall, to the extent reasonably requested in writing, fully cooperate with the Company in any investigation\nand/or threatened or pending litigation (now or in the future) in which the Company is a party or by which the Company is directly affected, and\nregarding matters which I, by virtue of my employment with the Company, have knowledge or information relevant to said litigation, including,\nbut not limited to (i) meeting with representatives of the Company to prepare for testimony and to provide truthful information regarding my\nknowledge, and (ii) providing, in any jurisdiction in which the Company requests, truthful testimony relevant to said litigation; provided that in\nall events the Company shall (a) reimburse me for actual and reasonable expenses incurred in connection with such cooperation including all\ntravel, lodging and accommodations, (b) remain and be exclusively responsible for all costs incurred in undertaking such litigation including all\nattorneys' fees, court costs, and other expenses consistent with the Company's by-laws, and (c) notify me as promptly as possible as to its need\nfor my assistance and cooperate with me in scheduling my participation so as to reasonably accommodate my other personal and professiona\nobligations and commitments.\nTrade Secrets and Confidential Information.\nI covenant and agree that I have held and shall continue to hold in confidence all Trade Secrets of the Company that came into my\nknowledge during my employment by the Company and shall not disclose, publish or make use of at any time such Trade Secrets for as long as\nthe information remains a Trade Secret. "Trade Secret" means any technical or non-technical data, formula, pattern, compilation, program,\ndevice, method, technique, drawing, process, financial data, financial plan, product plan, list of actual or potential customers or suppliers or other\ninformation similar to any of the foregoing, which (i) derives economic value, actual or potential, from not being generally known to and not\nbeing readily ascertainable by proper means by, other persons who can derive economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\nI also covenant and agree that, for the period beginning on the date I sign this Agreement and ending on February 28, 2009 (the\n"Nondisclosure Period"), I will hold in confidence all Confidential Information of the Company that came into my knowledge during my\nemployment by the Company and will not disclose, publish or make use of such Confidential Information. "Confidential Information" means any\ndata or information, other than Trade Secrets, that is valuable to the Company and not generally known to the public or to competitors of the\nCompany but shall not include either (i) any information which is available from any public source other than by means of my disclosure of such\ninformation to such source, or (ii) any information generated by me in the course of my employment which consists of contact information\nrelated to my personal or professional affiliations consisting solely of names, addresses, phone numbers and e-mail addresses.\n2\nThe restrictions stated in this Agreement are in addition to and not in lieu of protections afforded to trade secrets and confidential\ninformation under applicable state law. Nothing in this Agreement is intended to or shall be interpreted as diminishing or otherwise limiting the\nCompany's right under applicable state law. Notwithstanding the foregoing, nothing contained herein shall prevent me from disclosing or\notherwise utilizing any information (i) in any manner required by applicable law, judicial order or other governmental mandate or investigation\nprovided I shall advise the Company of any such intended disposition or use and reasonably cooperate with the Company in allowing the\nCompany to seek and obtain from the recipient governmental or judicial body any protective order or assurance of confidentiality regarding such\ninformation or (ii) in fulfillment of my duties or obligations owed to the Company.\nReturn of Materials.\nI further covenant and agree that I have or shall promptly deliver to the Company all memoranda, notes, records, manuals or other\ndocuments, including all copies of such materials and all documentation prepared or produced in connection therewith, containing Trade Secrets\nor Confidential Information regarding the Company's business, whether made or compiled by me or furnished to me by virtue of my employment\nwith the Company. I shall promptly deliver to the Company all vehicles, computers, credit cards, telephones, handheld electronic devices, office\nequipment, and other property furnished to me by virtue of my employment with the Company.\nNo Publicity..\nExcept as otherwise authorized or agreed to by the Chief Executive Officer of the Company (the "CEO"), during the Nondisclosure\nPeriod, I will not publish any opinion, fact, or material, deliver any lecture or address, participate in the making of any film, radio broadcast or\ntelevision transmission, or communicate with any representative of the media relating to confidential matters regarding the business or affairs of\nthe\nCompany\nwhich\nI\nwas\ninvolved\nwith\nduring\nmy\nemployment;\nprovided,\nthat\nnothing\ncontained\nherein\nshall\nprevent\nme\nfrom\nundertaking\nany\nmay such include activities ancillary otherwise and prohibited historical hereunder recitations with of my respect past to experiences presentations with focusing the Company on me and and which my personal do not experience otherwise involve or knowledge disclosure which of\nmatters or materials which have not been previously or otherwise publicly released.\nNon Compete and Non Solicitation.\nDefinitions.\nFor the purposes of this Section, in addition to all other terms defined under this Agreement, the following definitions apply:\n(a)\n"Non Solicitation Period" means the period beginning on the date I sign this Agreement and ending on February\n28,\n2009.\n(b)\n"Restricted Activities" means the development or oversight of marketing, innovation, operation or financial\nactivities or strategies for Restricted Businesses.\n(c)\n"Territory" means any location in which the Company conducts business.\n(d)\n"Restricted Businesses" means 1) companies whose primary business is the manufacture, sale, distribution and\nmarketing of carbonated soft drinks, coffee, tea, milk, water, juices or fruit-based beverages ("Non-alcoholic Beverages") and 2) companies a\nsubstantial portion of whose business activities includes the manufacture, sale, distribution and marketing of Non-alcoholic Beverages, but for\nwhom such business(es) may not be the company's primary business ("Non-Beverage Companies").\n(e)\n"Competing Business Segment" means any subsidiary, division or unit of the business of a company, other than a\nProhibited Company, where such subsidiary, division or unit manufactures, sells, distributes or markets Non-alcoholic Beverages.\n(f)\n"Prohibited Companies" shall mean each of (i) PepsiCo, Inc. or its subsidiaries or affiliates including members of the\nPepsi Bottling Group, (ii) Groupe Danone, (iii) Nestle S.A., (iv) Cadbury Schweppes, plc, and (v) Cott Corporation, all of which aforenamed\ncompanies engage in the Restricted Business.\n(g)\n"Release Payment" shall mean an amount equal to the difference between (i) the total base salary paid to me under\nthe Company Severance Plan, whether in a lump sum or in a series of payments, for any period commencing or occurring from and after March\n1, 2007 (such amount being anticipated as totaling $1,261,260) less (ii) any amounts charged or withheld from those payments (including all\nunemployment, FICA or similar non income taxes) described under subclause (i) hereof other than local, state or federal income taxes paid and\ncredited to me or any other deductions therefrom applied in satisfaction of obligations owed or benefits received by me.\n3\nNon Compete.\nI hereby covenant with the Company that I will not, within the Territory prior to February 28, 2009, without the prior written\nconsent of the CEO, engage in any Restricted Activities for or on behalf of (including in a consulting capacity) any one or more of the Prohibited\nCompanies (those activities in which I am so prohibited from engaging under this sentence being herein referred to as the "Absolute Activities").\nSubject to the exceptions and conditions hereinafter specified, I hereby further covenant with the Company that I will not, within the Territory\nprior to February 28, 2008, without the prior written consent of the CEO, engage in any Restricted Activities for or on behalf of (including in a\nconsulting capacity) any Restricted Business other than the Prohibited Companies (those activities from which I am prohibited from engaging\nunder this sentence being herein referred to as the "Conditional Activities"). Notwithstanding the foregoing, in all events it is agreed that I shall\nnot\nbe\nprohibited\nhereunder\nand\nshall\nremain\nentitled\nto\nperform\neither\n(i)\nservices\nfor\nNon-Beverage\nCompanies\n(other\nthan\nthe\nProhibited\nCompanies) that have a Competing Business Segment, provided I do not perform services for such Competing Business Segment, and provided\nfurther that I notify the CEO of the nature of any such services being rendered to any Non-Beverage Companies in writing within a reasonable\ntime prior to beginning performance of such services, (ii) services for any companies or other entities which do not engage in the Restricted\nBusiness within the Territory, (iii) Absolute Activities from and after March 1, 2009, or (iv) Conditional Activities from and after March 1,\n2008.\nNon Solicitation of Employees.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit for employment for or on behalf of any corporation, partnership, venture or other business\nentity\nany\nperson\nwho,\non\nthe\nlast\nday\nof\nmy\nemployment\nwith\nthe\nCompany\nor\nwithin\nsix\nmonths\nprior\nto\nthat\ndate,\nwas\nemployed\nby\nthe\nCompany as a manager or executive and with whom I had professional interaction during the last twelve months of my employment with the\nCompany (whether or not such person would commit a breach of contract).\nNon Solicitation of Customers.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture, sale,\ndistribution and marketing of Non-alcoholic Beverages for any Prohibited Company from any of the Company's customers, including actively\nsought prospective customers, with whom I had professional interaction during my employment with the Company (those activities from which I\nam prohibited from engaging under this sentence being herein referred to as the "Absolute Solicitations"). Subject to the exceptions and\nconditions hereinafter specified, I hereby further covenant and agree that I will not, within the Territory, on or prior to February 28, 2008, without\nthe prior written consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture,\nsale, distribution and marketing of Non-alcoholic Beverages for any Competing Business Segment of the Restricted Businesses from any of the\nCompany's customers, including actively sought prospective customers, with whom I had professional interaction during my employment with\nthe Company (those activities from which I am prohibited from engaging under this sentence being herein referred to as the "Conditional\nSolicitations"). Notwithstanding the foregoing, in all events it is agreed that I shall not be prohibited hereunder and shall remain entitled\nto\nundertake either (i) solicitations for any companies or other entities which do not engage in the Restricted Business within the Territory, (ii)\nAbsolute Solicitations from and after March 1, 2009, or (iii) Conditional Solicitations from and after March 1, 2008.\n4\nRelease.\nNotwithstanding the foregoing, it is agreed that in the event I shall desire to engage in any Conditional Activities and/or Conditional\nSolicitations otherwise prohibited hereunder prior to March 1, 2008, then prior to my commencing performance of such Conditional Activities\nand/or Conditional Solicitations, I shall notify the CEO of such intention seeking the Company's consent to my undertaking of same which\nconsent the CEO shall cause the Company to consider in good faith and within its reasonable discretion. Upon receipt of such request,\nthe\nCEO\nshall promptly, but in all events within ten business days, notify me in writing of the Company's granting of its consent to my undertaking of\nsuch Conditional Activities and/or Conditional Solicitations or the Company's decision to refuse its granting of such consent. In the event the\nCompany\nrefuses\nto\nconsent\nto\nmy\nundertaking\nof\nany\nsuch\nConditional\nActivities\nand/or\nConditional\nSolicitations\nhereunder,\nI\nmay,\nat\nmy\nsole\nelection and upon paying to the Company the Release Payment, be entitled to fully undertake any Conditiona Activities and/or Conditional\nSolicitations without same being subject to any further restriction or prohibition hereunder, except as otherwise limited by applicable law. Upon\nmy\nremittance\nof\nthe\nRelease\nPayment\nto\nthe\nCompany\nhereunder,\nthe\nCompany\nshall\naccept\nsame\nas\nfull,\ncomplete\nand\nexclusive\nliquidated\ndamages and shall have no rights or entitlements to enforce or seek enforcement of my covenant and agreement not to engage in any Conditional\nActivities or Conditional Solicitations hereunder and shall not have and hereby waive, release and relinquish any and all claims, assertion\nor\ndamages the Company may have by reason or in connection with my undertaking of any Conditional Activities and/or Conditional Solicitations.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have retained\nthe right to enforce all other provisions of this Agreement, including but not limited to my agreement not to engage in any Absolute Activities or\nAbsolute Solicitations hereunder and my obligations not to disclose Trade Secrets and Confidential Information and that my release from the\nprohibition against my undertaking of any Conditional Activities and Conditional Solicitations hereunder shall not relieve me from my covenant\nand agreement not to engage in any Absolute Activities or Absolute Solicitations hereunder or my obligations not to disclose Trade Secrets\nor\nConfidential Information pursuant to this Agreement or applicable law.\nReasonable and Necessary. Restrictions.\nI acknowledge that during the course of my employment with the Company I have received or will receive and had or will have access\nto Confidential Information and Trade Secrets of the Company, including but not limited to confidential and secret business and marketing plans,\nstrategies, and studies, detailed client/customer/bottler lists and information relating to the operations and business requirements of those\nclients/customers/bottlers and, accordingly, I am willing to enter into the covenants contained in this Agreement in order to provide the Company\nwith what I consider to be reasonable protection for its interests.\nI acknowledge that the restrictions, prohibitions and other provisions hereof, are reasonable, fair and equitable in scope, terms and\nduration, and are necessary to protect the legitimate business interests of the Company.\nSubject to my being released from the prohibition against my undertaking of Conditional Activities and Conditional Solicitations\nupon\nmy\nremittance of the Release Payment as contemplated hereunder, I acknowledge and agree that in the event I breach, or threaten in any way to\nbreach, or it is inevitable that I will breach, any of the provisions of this Agreement, damages shall be an inadequate remedy and the Company\nshall be entitled, without bond, to injunctive or other equitable relief in addition to all other rights otherwise available to the Company at law\nor\nin equity.\nIndemnification.\nNothing in this Agreement shall affect any rights I may have under Article VII of the Company's by-laws in effect as of the date of this\nAgreement.\n5\nNon-Disparagement.\nI agree that I will not make any statement, written or verbal, in any forum or media, or take any action in disparagement of the\nCompany, including but not limited to negative references to the Company or its products, services, corporate policies, or current or former\nofficers or employees, customers, suppliers, or business partners or associates. The Company agrees that neither it nor any of its executives or\nsenior management level employees will make any statement, written or verbal, in any forum or media, or take any action in disparagement of\nme, including but not limited to negative references to me or my levels of competency or aptitudes.\nComplete Agreement.\nThis Agreement together with the Separation Letter is the complete understanding between me and the Company in respect of the\nsubject matter of this Agreement and supersedes all prior agreements relating to the same subject matter. I have not relied upon any\nrepresentations, promises or agreements of any kind except those set forth herein and in the Separation Letter in signing this Agreement.\nSeverability.\nIn the event that any provision of this Agreement should be held to be invalid or unenforceable, each and all of the other provisions of\nthis Agreement shall remain in full force and effect. If any provision of this Agreement is found to be invalid or unenforceable, such provision\nshall be modified as necessary to permit this Agreement to be upheld and enforced to the maximum extent permitted by law.\nGoverning Law.\nExcept to the extent preempted by Federal Law, this Agreement is to be governed and enforced under the laws of the State of Georgia\n(except to the extent that Georgia conflicts of law rules would call for the application of the law of another jurisdiction) and any and all disputes\narising under this Agreement are to be resolved exclusively by courts sitting in Georgia. I hereby consent to the jurisdiction of such courts.\nSuccessors and Assigns.\nThis Agreement inures to the benefit of the Company and its successors and assigns and to the benefit of my heirs, executors,\nadministrators, to the extent not precluded by the Company's benefit or compensation plans.\nAmendment/Waiver.\nNo amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed by\neach of the parties hereto.\nAcknowledgment.\nEach of the undersigned have carefully read this Agreement, fully understand each of its terms and conditions, and intend to abide by\nthis Agreement in every respect. As such, each of the undersigned individually or through its duly authorized officers knowingly and voluntarily\nsigns this Agreement under her or its respective hand and seal as her or its respective legally binding and enforceable obligation.\n/s/ Mary Minnick\nMary Minnick\nDate: February 28, 2007\nTHE COCA-COLA COMPANY\nBy: /s/ Geoffrey J. Kelly\nTitle: Vice President and General Counsel\nDate: February 28, 2007	EX-99.2 3 ko8k22807x99-2.htm FULL AND COMPLETE RELEASE AND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nEXHIBIT 99.2\nFULL AND COMPLETE RELEASE\nAND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nExecutive Release.\nI, Mary Minnick, in consideration of severance benefit payments under The Coca-Cola Company Severance Pay Plan (the “Company\nSeverance Plan”), the payments and benefits described in the attached letter dated February 28, 2007 (the “Separation Letter”), and other good\nand valuable consideration, for myself and my heirs, executors, administrators and assigns, do hereby knowingly and voluntarily release and\nforever discharge The Coca-Cola Company and its subsidiaries, affiliates, joint ventures, joint venture partners, and benefit plans (collectively\nthe “Company"), and their respective current and former directors, officers, administrators, trustees, employees, agents, and other representatives,\nfrom all debts, claims, actions, causes of action (including without limitation those under the Fair Labor Standards Act of 1938, as amended,\n29 U.S.C . § 201 et seq.; the Employee Retirement Income Security Act of 1974, as amended, 29 U.S .C . § 1001 et seq.; the Worker Adjustment\nand Retraining Notification Act of 1988, 29 U.S.C . § 2101 et seq.; and those federal, state, local, and foreign laws prohibiting employment\ndiscrimination based on age, sex, race, color, national origin, religion, disability, veteran or marital status, sexual orientation, or any other\nprotected trait or characteristic, or retaliation for engaging in any protected activity, including without limitation the Age Discrimination in\nEmployment Act of 1967, 29 U.S.C . § 621 et seq., as amended by the Older Workers Benefit Protection Act, P.L . 101 -433; the Equal Pay Act of\n1963, 9 U.S.C .§ 206, et seq.; Title VII of The Civil Rights Act of 1964, as amended, 42 U.S.C . § 2000e et seq.; the Civil Rights Act of 1866,\n42 U.S.C . § 1981; the Civil Rights Act of 1991, 42 U.S .C . § 1981a; the Americans with Disabilities Act, 42 U.S.C . § 12101 et seq.; the\nRehabilitation Act of 1973, 29 U.S.C . § 791 et seq.; the Family and Medical Leave Act of 1993, 28 U.S .C . §§ 2601 and 2611 et seq.; and\ncomparable state, local, and foreign causes of action, whether statutory or common law), suits, dues, sums of money, accounts, reckonings,\ncovenants, contracts, claims for costs or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever,\nat law, in equity, or otherwise, KNOWN OR UNKNOWN, fixed or contingent, which I ever had, now have, or may have, or which I, my heirs,\nexecutors, administrators or assigns hereafter can, shall, or may have, from the beginning of time through and including February 28, 2007 (the\n“Effective Date”), including without limitation those arising out of or related to my employment or separation from employment with the\nCompany. This Full and Complete Release and Agreement on Competition, Trade Secrets and Confidentiality is sometimes herein referred to as\nthe “Agreement.”\nNotwithstanding the foregoing, it is understood and agreed that I do not hereby waive, but rather I have retained and shall continue to\nhave all rights and entitlements to receive and the Company shall remain obligated to fully perform and pay (or cause to be performed or paid)\n(i) all amounts or payments owed to me as contemplated under the Separation Letter, (ii) all of my rights to seek and receive indemnification\nfrom the Company for and with respect to all acts, errors or omissions committed by me in my capacity as a shareholder, director, officer,\nemployee, fiduciary, agent or representative of the Company all in the manner provided under the Company’s by-laws (as hereinafter\ncontemplated) and applicable law, and (iii) all of my accrued and vested benefits (including pension or deferred compensation benefits) as\ndetermined through and including the Effective Date under the Company’s applicable and governing plans and programs including without\nlimitation all rights received or attributable to any coverage extended me under any insurance policies maintained with or through third parties.\nI fully understand and agree that:\n1.\nthis Agreement is in exchange for severance benefits under the Company Severance Plan, the payments and benefits\ndescribed in the Separation Letter, and other special compensation to which I would otherwise not be entitled;\n2.\nI am hereby advised to consult with an attorney before signing this Agreement;\n3.\nI have 21 days from my receipt of this Agreement within which to consider whether to sign it;\n4.\nI have seven days following my signature of this Agreement to revoke the Agreement; and\n5.\nthis Agreement shall not become effective or enforceable until the revocation period of seven days has expired.\nIf I choose to revoke this Agreement, I must do so by notifying the Company in writing.\nIf there is any claim for loss of consortium, or any other similar claim, arising out of or related to my employment or separation of\nemployment with the Company, I will indemnify and hold the Company harmless from any liability, including costs and expenses (as well as\nreasonable attorneys' fees) incurred by the Company as a result of any such claim.\nI additionally understand and agree that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of the Company or any of the other persons or entities hereby released.\nCompany Release.\nFor and in consideration of my release of the Company under the preceding provisions and my undertaking of all covenants and\nagreements provided under this Agreement and other good and valuable consideration, the Company (as defined herein) does hereby knowingly\nand voluntarily release and forever discharge me and my heirs, executors, administrators and assigns (collectively the “Executive Released\nParties"), from all debts, claims, actions, causes of action, suits, dues, sums of money, accounts, reckonings, covenants, contracts, claims for\ncosts or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever, at law, in equity, or otherwise,\nKNOWN OR UNKNOWN, fixed or contingent, which the Company ever had, now have, or may have, or which the Company hereafter can,\nshall, or may have, from the beginning of time through and including the Effective Date, including without limitation those arising out of or\nrelated to my employment or my separation from employment with the Company.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have\nretained and continue to have all rights and entitlements to enforce all of its rights and my obligations as against me as provided or contemplated\nunder and in accordance with the terms of this Agreement or the Separation Letter.\nIt is further understood and agreed that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of any one or more of the Executive Released Parties.\nFuture Cooperation.\nI covenant and agree that I shall, to the extent reasonably requested in writing, fully cooperate with the Company in any investigation\nand/or threatened or pending litigation (now or in the future) in which the Company is a party or by which the Company is directly affected, and\nregarding matters which I, by virtue of my employment with the Company, have knowledge or information relevant to said litigation, including,\nbut not limited to (i) meeting with representatives of the Company to prepare for testimony and to provide truthful information regarding my\nknowledge, and (ii) providing, in any jurisdiction in which the Company requests, truthful testimony relevant to said litigation; provided that in\nall events the Company shall (a) reimburse me for actual and reasonable expenses incurred in connection with such cooperation including all\ntravel, lodging and accommodations, (b) remain and be exclusively responsible for all costs incurred in undertaking such litigation including all\nattorneys’ fees, court costs, and other expenses consistent with the Company’s by-laws, and (c) notify me as promptly as possible as to its need\nfor my assistance and cooperate with me in scheduling my participation so as to reasonably accommodate my other personal and professional\nobligations and commitments.\nTrade Secrets and Confidential Information.\nI covenant and agree that I have held and shall continue to hold in confidence all Trade Secrets of the Company that came into my\nknowledge during my employment by the Company and shall not disclose, publish or make use of at any time such Trade Secrets for as long as\nthe information remains a Trade Secret. "Trade Secret" means any technical or non-technical data, formula, pattern, compilation, program,\ndevice, method, technique, drawing, process, financial data, financial plan, product plan, list of actual or potential customers or suppliers or other\ninformation similar to any of the foregoing, which (i) derives economic value, actual or potential, from not being generally known to and not\nbeing readily ascertainable by proper means by, other persons who can derive economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\nI also covenant and agree that, for the period beginning on the date I sign this Agreement and ending on February 28, 2009 (the\n“Nondisclosure Period”), I will hold in confidence all Confidential Information of the Company that came into my knowledge during my\nemployment by the Company and will not disclose, publish or make use of such Confidential Information. "Confidential Information" means any\ndata or information, other than Trade Secrets, that is valuable to the Company and not generally known to the public or to competitors of the\nCompany but shall not include either (i) any information which is available from any public source other than by means of my disclosure of such\ninformation to such source, or (ii) any information generated by me in the course of my employment which consists of contact information\nrelated to my personal or professional affiliations consisting solely of names, addresses, phone numbers and e-mail addresses.\n2\nThe restrictions stated in this Agreement are in addition to and not in lieu of protections afforded to trade secrets and confidential\ninformation under applicable state law. Nothing in this Agreement is intended to or shall be interpreted as diminishing or otherwise limiting the\nCompany’s right under applicable state law. Notwithstanding the foregoing, nothing contained herein shall prevent me from disclosing or\notherwise utilizing any information (i) in any manner required by applicable law, judicial order or other governmental mandate or investigation\nprovided I shall advise the Company of any such intended disposition or use and reasonably cooperate with the Company in allowing the\nCompany to seek and obtain from the recipient governmental or judicial body any protective order or assurance of confidentiality regarding such\ninformation or (ii) in fulfillment of my duties or obligations owed to the Company.\nReturn of Materials.\nI further covenant and agree that I have or shall promptly deliver to the Company all memoranda, notes, records, manuals or other\ndocuments, including all copies of such materials and all documentation prepared or produced in connection therewith, containing Trade Secrets\nor Confidential Information regarding the Company's business, whether made or compiled by me or furnished to me by virtue of my employment\nwith the Company. I shall promptly deliver to the Company all vehicles, computers, credit cards, telephones, handheld electronic devices, office\nequipment, and other property furnished to me by virtue of my employment with the Company.\nNo Publicity.\nExcept as otherwise authorized or agreed to by the Chief Executive Officer of the Company (the “CEO”), during the Nondisclosure\nPeriod, I will not publish any opinion, fact, or material, deliver any lecture or address, participate in the making of any film, radio broadcast or\ntelevision transmission, or communicate with any representative of the media relating to confidential matters regarding the business or affairs of\nthe Company which I was involved with during my employment; provided, that nothing contained herein shall prevent me from undertaking any\nsuch activities otherwise prohibited hereunder with respect to presentations focusing on me and my personal experience or knowledge which\nmay include ancillary and historical recitations of my past experiences with the Company and which do not otherwise involve disclosure of\nmatters or materials which have not been previously or otherwise publicly released.\nNon Compete and Non Solicitation.\nDefinitions.\nFor the purposes of this Section, in addition to all other terms defined under this Agreement, the following definitions apply:\n(a)\n"Non Solicitation Period" means the period beginning on the date I sign this Agreement and ending on February 28,\n2009.\n(b)\n“Restricted Activities” means the development or oversight of marketing, innovation, operation or financial\nactivities or strategies for Restricted Businesses.\n(c)\n"Territory" means any location in which the Company conducts business.\n(d)\n“Restricted Businesses” means 1) companies whose primary business is the manufacture, sale, distribution and\nmarketing of carbonated soft drinks, coffee, tea, milk, water, juices or fruit-based beverages (“Non-alcoholic Beverages”) and 2) companies a\nsubstantial portion of whose business activities includes the manufacture, sale, distribution and marketing of Non-alcoholic Beverages, but for\nwhom such business(es) may not be the company’s primary business (“Non-Beverage Companies”).\n(e)\n“Competing Business Segment” means any subsidiary, division or unit of the business of a company, other than a\nProhibited Company, where such subsidiary, division or unit manufactures, sells, distributes or markets Non-alcoholic Beverages.\n(f)\n“Prohibited Companies” shall mean each of (i) PepsiCo, Inc. or its subsidiaries or affiliates including members of the\nPepsi Bottling Group, (ii) Groupe Danone, (iii) Nestle S.A., (iv) Cadbury Schweppes, plc, and (v) Cott Corporation, all of which aforenamed\ncompanies engage in the Restricted Business.\n(g)\n“Release Payment” shall mean an amount equal to the difference between (i) the total base salary paid to me under\nthe Company Severance Plan, whether in a lump sum or in a series of payments, for any period commencing or occurring from and after March\n1, 2007 (such amount being anticipated as totaling $1,261,260) less (ii) any amounts charged or withheld from those payments (including all\nunemployment, FICA or similar non income taxes) described under subclause (i) hereof other than local, state or federal income taxes paid and\ncredited to me or any other deductions therefrom applied in satisfaction of obligations owed or benefits received by me.\n3\nNon Compete.\nI hereby covenant with the Company that I will not, within the Territory prior to February 28, 2009, without the prior written\nconsent of the CEO, engage in any Restricted Activities for or on behalf of (including in a consulting capacity) any one or more of the Prohibited\nCompanies (those activities in which I am so prohibited from engaging under this sentence being herein referred to as the “Absolute Activities”).\nSubject to the exceptions and conditions hereinafter specified, I hereby further covenant with the Company that I will not, within the Territory\nprior to February 28, 2008, without the prior written consent of the CEO, engage in any Restricted Activities for or on behalf of (including in a\nconsulting capacity) any Restricted Business other than the Prohibited Companies (those activities from which I am prohibited from engaging\nunder this sentence being herein referred to as the “Conditional Activities”). Notwithstanding the foregoing, in all events it is agreed that I shall\nnot be prohibited hereunder and shall remain entitled to perform either (i) services for Non-Beverage Companies (other than the Prohibited\nCompanies) that have a Competing Business Segment, provided I do not perform services for such Competing Business Segment, and provided\nfurther that I notify the CEO of the nature of any such services being rendered to any Non-Beverage Companies in writing within a reasonable\ntime prior to beginning performance of such services, (ii) services for any companies or other entities which do not engage in the Restricted\nBusiness within the Territory, (iii) Absolute Activities from and after March 1, 2009, or (iv) Conditional Activities from and after March 1,\n2008.\nNon Solicitation of Employees.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit for employment for or on behalf of any corporation, partnership, venture or other business\nentity any person who, on the last day of my employment with the Company or within six months prior to that date, was employed by the\nCompany as a manager or executive and with whom I had professional interaction during the last twelve months of my employment with the\nCompany (whether or not such person would commit a breach of contract).\nNon Solicitation of Customers.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture, sale,\ndistribution and marketing of Non-alcoholic Beverages for any Prohibited Company from any of the Company’s customers, including actively\nsought prospective customers, with whom I had professional interaction during my employment with the Company (those activities from which I\nam prohibited from engaging under this sentence being herein referred to as the “Absolute Solicitations”). Subject to the exceptions and\nconditions hereinafter specified, I hereby further covenant and agree that I will not, within the Territory, on or prior to February 28, 2008, without\nthe prior written consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture,\nsale, distribution and marketing of Non-alcoholic Beverages for any Competing Business Segment of the Restricted Businesses from any of the\nCompany’s customers, including actively sought prospective customers, with whom I had professional interaction during my employment with\nthe Company (those activities from which I am prohibited from engaging under this sentence being herein referred to as the “Conditional\nSolicitations”). Notwithstanding the foregoing, in all events it is agreed that I shall not be prohibited hereunder and shall remain entitled to\nundertake either (i) solicitations for any companies or other entities which do not engage in the Restricted Business within the Territory, (ii)\nAbsolute Solicitations from and after March 1, 2009, or (iii) Conditional Solicitations from and after March 1, 2008.\n4\nRelease.\nNotwithstanding the foregoing, it is agreed that in the event I shall desire to engage in any Conditional Activities and/or Conditional\nSolicitations otherwise prohibited hereunder prior to March 1, 2008, then prior to my commencing performance of such Conditional Activities\nand/or Conditional Solicitations, I shall notify the CEO of such intention seeking the Company’s consent to my undertaking of same which\nconsent the CEO shall cause the Company to consider in good faith and within its reasonable discretion. Upon receipt of such request, the CEO\nshall promptly, but in all events within ten business days, notify me in writing of the Company’s granting of its consent to my undertaking of\nsuch Conditional Activities and/or Conditional Solicitations or the Company’s decision to refuse its granting of such consent. In the event the\nCompany refuses to consent to my undertaking of any such Conditional Activities and/or Conditional Solicitations hereunder, I may, at my sole\nelection and upon paying to the Company the Release Payment, be entitled to fully undertake any Conditional Activities and/or Conditional\nSolicitations without same being subject to any further restriction or prohibition hereunder, except as otherwise limited by applicable law. Upon\nmy remittance of the Release Payment to the Company hereunder, the Company shall accept same as full, complete and exclusive liquidated\ndamages and shall have no rights or entitlements to enforce or seek enforcement of my covenant and agreement not to engage in any Conditional\nActivities or Conditional Solicitations hereunder and shall not have and hereby waive, release and relinquish any and all claims, assertion or\ndamages the Company may have by reason or in connection with my undertaking of any Conditional Activities and/or Conditional Solicitations.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have retained\nthe right to enforce all other provisions of this Agreement, including but not limited to my agreement not to engage in any Absolute Activities or\nAbsolute Solicitations hereunder and my obligations not to disclose Trade Secrets and Confidential Information and that my release from the\nprohibition against my undertaking of any Conditional Activities and Conditional Solicitations hereunder shall not relieve me from my covenant\nand agreement not to engage in any Absolute Activities or Absolute Solicitations hereunder or my obligations not to disclose Trade Secrets or\nConfidential Information pursuant to this Agreement or applicable law.\nReasonable and Necessary Restrictions.\nI acknowledge that during the course of my employment with the Company I have received or will receive and had or will have access\nto Confidential Information and Trade Secrets of the Company, including but not limited to confidential and secret business and marketing plans,\nstrategies, and studies, detailed client/customer/bottler lists and information relating to the operations and business requirements of those\nclients/customers/bottlers and, accordingly, I am willing to enter into the covenants contained in this Agreement in order to provide the Company\nwith what I consider to be reasonable protection for its interests.\nI acknowledge that the restrictions, prohibitions and other provisions hereof, are reasonable, fair and equitable in scope, terms and\nduration, and are necessary to protect the legitimate business interests of the Company.\nSubject to my being released from the prohibition against my undertaking of Conditional Activities and Conditional Solicitations upon\nmy remittance of the Release Payment as contemplated hereunder, I acknowledge and agree that in the event I breach, or threaten in any way to\nbreach, or it is inevitable that I will breach, any of the provisions of this Agreement, damages shall be an inadequate remedy and the Company\nshall be entitled, without bond, to injunctive or other equitable relief in addition to all other rights otherwise available to the Company at law or\nin equity.\nIndemnification.\nNothing in this Agreement shall affect any rights I may have under Article VII of the Company’s by-laws in effect as of the date of this\nAgreement.\n5\nNon-Disparagement.\nI agree that I will not make any statement, written or verbal, in any forum or media, or take any action in disparagement of the\nCompany, including but not limited to negative references to the Company or its products, services, corporate policies, or current or former\nofficers or employees, customers, suppliers, or business partners or associates. The Company agrees that neither it nor any of its executives or\nsenior management level employees will make any statement, written or verbal, in any forum or media, or take any action in disparagement of\nme, including but not limited to negative references to me or my levels of competency or aptitudes.\nComplete Agreement.\nThis Agreement together with the Separation Letter is the complete understanding between me and the Company in respect of the\nsubject matter of this Agreement and supersedes all prior agreements relating to the same subject matter. I have not relied upon any\nrepresentations, promises or agreements of any kind except those set forth herein and in the Separation Letter in signing this Agreement.\nSeverability.\nIn the event that any provision of this Agreement should be held to be invalid or unenforceable, each and all of the other provisions of\nthis Agreement shall remain in full force and effect. If any provision of this Agreement is found to be invalid or unenforceable, such provision\nshall be modified as necessary to permit this Agreement to be upheld and enforced to the maximum extent permitted by law.\nGoverning Law.\nExcept to the extent preempted by Federal Law, this Agreement is to be governed and enforced under the laws of the State of Georgia\n(except to the extent that Georgia conflicts of law rules would call for the application of the law of another jurisdiction) and any and all disputes\narising under this Agreement are to be resolved exclusively by courts sitting in Georgia. I hereby consent to the jurisdiction of such courts.\nSuccessors and Assigns.\nThis Agreement inures to the benefit of the Company and its successors and assigns and to the benefit of my heirs, executors,\nadministrators, to the extent not precluded by the Company’s benefit or compensation plans.\nAmendment/Waiver.\nNo amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed by\neach of the parties hereto.\nAcknowledgment.\nEach of the undersigned have carefully read this Agreement, fully understand each of its terms and conditions, and intend to abide by\nthis Agreement in every respect. As such, each of the undersigned individually or through its duly authorized officers knowingly and voluntarily\nsigns this Agreement under her or its respective hand and seal as her or its respective legally binding and enforceable obligation.\n/s/ Mary Minnick\nMary Minnick\nDate: February 28, 2007\nTHE COCA-COLA COMPANY\nBy: /s/ Geoffrey J. Kelly____________\nTitle: Vice President and General Counsel\nDate: February 28, 2007
4fd432d8ce6796dabc17d3838d8539a2.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nMarch 16, 2010\nSomanetics Corporation\n1653 East Maple Road\nTroy, MI 48083\nLadies and Gentlemen:\nIn connection with our possible interest in a transaction involving the acquisition of Somanetics Corporation (the “Company”), you are furnishing us\nor our representatives with certain information which is either non-public, confidential or proprietary in nature. All information furnished to us or\nour representatives by the Company or any of its employees, representatives, agents or advisors (including attorneys, accountants and financial\nadvisors), shall be considered confidential and proprietary, and together with analyses, compilations, forecasts, studies or other documents prepared\nby us, our agents, advisors (including attorneys, accountants and financial advisors), representatives or employees which contain such information, is\nhereinafter referred to as the “Information”. In consideration of the Company furnishing us with the Information, we agree that:\n1. The Information will be kept confidential and shall not, without the prior written consent of the Company, be disclosed by us, or by our affiliates,\nagents, representatives, advisors or employees, in any manner whatsoever, in whole or in part, and shall not be used by us, our affiliates, agents,\nrepresentatives, advisors or employees, other than to determine whether we wish to enter into, or other than in connection with, the transaction\ndescribed above. Moreover, we agree to reveal the Information only to our affiliates, agents, representatives, advisors and employees who need to\nknow the Information for the purpose of evaluating, or otherwise in connection with, the transaction described above who are informed of the\nconfidential nature of the Information. We agree to be responsible for any breach of this Agreement by our affiliates, agents, representatives,\nadvisors and employees.\n2. Without the prior written consent of the other party, neither party nor its representatives shall disclose to any person either the fact that discussions\nor negotiations are taking place concerning the possible transaction referred to herein or any of the terms, conditions or other facts with respect to\nany such possible transaction including the status thereof, except as required by applicable law or exchange listing agreements, rules or policies.\n3. All copies of the Information, except for that portion of the Information which consists of analyses, compilations, forecasts, studies or other\ndocuments prepared by us, our agents, representatives, advisors or employees, will be returned to the Company promptly upon request or if we\ndecide not to proceed with an acquisition of the Company (and we will inform the Company promptly of any such decision). At the time of such\nreturn, we will destroy any such analyses, compilations, forecasts, studies or other documents prepared by us, our agents, representatives, advisors or\nemployees.\n1\n2\n4. The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a\nresult of disclosure by us, our affiliates, agents, representatives, advisors or employees, or (ii) become available to us or to our affiliates, agents,\nrepresentatives, advisors or employees on a non-confidential basis from a source which was not then prohibited from disclosing such Information to\nus by a legal, contractual or fiduciary obligation to the Company, or (iii) which was in our possession, or in the possession of our affiliates, agents,\nrepresentatives, advisors or employees, or otherwise available to us, or to our affiliates, agents, representatives, advisors or employees, on a non-\nconfidential basis prior to its disclosure to us or one or more of our affiliates, agents, representatives, advisors or employees, or (iv) which is\nindependently acquired or developed by us without violating any obligations under this Agreement.\n5. The above undertakings of non-disclosure and confidentiality shall remain in force for a period of two (2) years from the date of this Agreement,\nexcept that there shall be no time limit, and such undertakings shall continue indefinitely, with respect to Information regarding algorithms relating\nto the Company’s past, present and proposed products, the calibration of those products, the source code and applications software related to those\nproducts, and the analog signal processing section of the pre-amp pcba relating to those products.\n6. In the event that we or anyone to whom we transmit the Information pursuant to this Agreement is requested or becomes legally compelled to\ndisclose any of the Information (whether by oral questions, interrogatories, requests for Information or documents, subpoena, Civil Investigative\nDemand or similar process or otherwise), we will provide the Company with prompt notice, to the extent practicable, so that the Company may seek\na protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. We will cooperate with the Company,\nat the Company’s expense, to obtain such protective order or other appropriate remedy. In the event that such protective order or other remedy is not\nobtained, the Company agrees that such disclosure may be made without liability hereunder. We will furnish only that portion of the Information\nwhich we are, in the opinion of our counsel or the counsel of our representative, legally required to disclose and will use reasonable efforts to obtain\nreliable assurance that confidential treatment will be accorded the Information.\n7. We agree that for a period of one year from the date of this Agreement, we and our affiliates will not solicit for employment any employee of the\nCompany with whom we or our affiliates had direct contact in connection with our consideration of a possible transaction hereunder.\nNotwithstanding the foregoing, this paragraph shall not preclude our right to make generalized searches for employees by use of advertisements in\nthe media (including, without limitation, trade media) or by engaging search firms, so long as such general searches are not specifically targeted at\nsuch Company employees, and we shall not be prohibited from, and shall not be required to obtain the Company’s consent prior to, offering to\nemploy or employing any person who (i) contacts us on his or her own initiative without any direct or indirect solicitation by us, (ii) responds to an\nadvertisement or other general solicitation for employment not directed at employees of the Company, (iii) began employment discussions with us\nprior to the date of this agreement or (iv) is no longer employed by the Company at the time we commence employment discussions with such\nperson.\n3\n8. None of the Company or any of its affiliates, agents, advisors or representatives (i) has made or makes any representation or warranty, expressed\nor implied, as to the accuracy or completeness of the Information or (ii) shall have any liability whatsoever to us or our affiliates, agents,\nrepresentatives, advisors or employees relating to or resulting from the use of the Information or any errors therein or omissions therefrom. The\nInformation may include certain statements, estimates and projections provided by the Company with regard to the anticipated future performance of\nthe Company. Such statements, estimates and projections reflect various assumptions made by the Company concerning anticipated results, which\nassumptions may or may not prove to be correct. No representations are made as to the accuracy of such assumptions, statements, estimates or\nprojections, including any budget(s). The only information that will have any legal effect will be specifically represented in a definitive purchase\nagreement; and in no event will such definitive purchase agreement contain any representation as to the projections.\n9. You understand that (i) the Company shall conduct the process for a possible transaction as it, in its sole discretion, shall determine (including,\nwithout limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to us or any other person),\n(ii) any procedures relating to a potential transaction may be changed at any time without notice to you or any other person, (iii) the Company shall\nhave the right to reject or accept any potential buyer, proposal or offer, for any reason whatsoever, in its sole discretion, and (iv) neither we nor any\nof our affiliates, agents, advisors or representatives shall have any claims whatsoever against the Company or any of its respective directors, officers,\nshareholders, owners, affiliates or agents arising out of or relating to a potential transaction (other than those against the parties to a definitive\nagreement with you in accordance with the terms thereof). We agree that, subject to the terms of this Agreement, unless and until a definitive\npurchase agreement between the Company and us with regard to any transaction has been executed and delivered, neither the Company nor we will\nbe under any legal obligation of any kind whatsoever with respect to such transaction.\n10. In consideration of the Information being furnished to us, we hereby further agree that, without the prior written consent of the Board of\nDirectors of the Company, for a period of one year from the date hereof, neither we nor any of our affiliates (as such term is defined in Rule 12b-2\nunder the Securities Exchange Act of 1934, as amended), acting alone or as part of a group, will (i) acquire or offer or agree to acquire, directly or\nindirectly, by purchase or otherwise, any voting securities or securities convertible into voting securities of the Company, (ii) propose to enter into,\ndirectly or indirectly, any merger or business combination involving the Company or any of its subsidiaries, (iii) otherwise seek to influence or\ncontrol, in any manner whatsoever (including proxy solicitation or otherwise), the management or policies of the Company, (iv) assist, advise or\nencourage (including by knowingly providing or arranging financing for that purpose) any other person in doing any of the foregoing, (v) call,\nrequest or seek to have called any meeting of the shareholders of the Company or execute any written consent in lieu of a meeting of holders of any\nsecurities of the Company, (vi) otherwise act, to seek the removal of any member of the Board of Directors, seek to elect or place a representative on\nthe Board of Directors of the Company, or seek to control or influence the management, Board of Directors or policies of the Company, (vii) seek to\nhave the Company waive, amend or modify its governing documents (for example, its articles or bylaws), (viii) take any action which might force\nthe Company to make a public announcement regarding any of the types of matters\n4\nset forth above, (ix) make any request directly or indirectly, to amend or waive any provision of this section of this Agreement (including this\nsentence), (x) take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nother type of transaction or activity described in this section of this Agreement, or (xi) enter into any discussions or arrangements with any third\nparty with respect to any of the foregoing. The foregoing section shall not prevent us (alone or jointly with other sources of buyer financing) from\nmaking non-public proposals to the Company with respect to a possible transaction in compliance with written procedures provided to you by the\nCompany or its advisors. Notwithstanding the foregoing, in the event that the Board of Directors of the Company approves a transaction with any\nperson or entity that would result in such person or entity beneficially owning more than 20% of the outstanding voting securities of the Company\n(or a successor to the Company in a merger or consolidation transaction) or all or substantially all of the Company’s assets, or any person, entity or\n“group” (as defined in the 1934 Act), other than us or any of our affiliates, has commenced or publicly announced its intention to commence a tender\noffer for more than 20% of the outstanding voting securities of the Company, the provisions of this Section 10 shall terminate.\n11. It is further understood and agreed that Bruce Barrett, Mary Ann Victor or Bill Iacona will arrange for appropriate contacts with the Company. It\nis also understood and agreed that all (i) communications regarding a possible transaction, (ii) requests for additional information, (iii) requests for\nfacility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed exclusively to Bruce\nBarrett, Mary Ann Victor or Bill Iacona, and that none of us or our affiliates, agents, advisors or representatives will initiate or cause to be initiated\nany communication with any director, officer, employee or vendor of the Company concerning the Information or a potential transaction.\n12. We understand and agree that the Company may be irreparably harmed by violation of this Agreement. Monetary damages alone may not be a\nsufficient remedy for any breach of this Agreement and, therefore, in addition to the Company’s other rights and remedies, the Company will be\nentitled to seek specific performance and injunctive or other equitable relief to enforce this Agreement. In addition, in the event of litigation\ninvolving this Agreement, the prevailing party will be entitled to attorneys’ fees and other costs incurred in connection with such litigation.\n13. The Company reserves the right to assign its rights, powers and privileges under this Agreement (including, without limitation, the right to\nenforce the terms of this Agreement) to any successor – in – interest to the Company by merger or sale of all or substantially all of the assets of the\nCompany.\n14. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent\nof such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of enforceability of such\nprovisions in any other jurisdiction.\n5\n15. This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to the\nprinciples of conflicts of law.\nVery truly yours,\nTYCO HEALTHCARE GROUP LP d/b/a COVIDIEN\nBy: /s/ Matthew J. Nicolella\nTitle:\nMatthew J. Nicolella\nVice President\nAccepted and agreed:\nSOMANETICS CORPORATION\nBy: /s/ Bruce J. Barrett\nTitle:\nBruce J. Barrett\nPresident and Chief Executive Officer	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nMarch 16, 2010\nSomanetics Corporation\n1653 East Maple Road\nTroy, MI 48083\nLadies and Gentlemen:\nIn connection with our possible interest in a transaction involving the acquisition of Somanetics Corporation (the “Company”), you are furnishing us\nor our representatives with certain information which is either non-public, confidential or proprietary in nature. All information furnished to us or\nour representatives by the Company or any of its employees, representatives, agents or advisors (including attorneys, accountants and financial\nadvisors), shall be considered confidential and proprietary, and together with analyses, compilations, forecasts, studies or other documents prepared\nby us, our agents, advisors (including attorneys, accountants and financial advisors), representatives or employees which contain such information, is\nhereinafter referred to as the “Information”. In consideration of the Company furnishing us with the Information, we agree that:\n1. The Information will be kept confidential and shall not, without the prior written consent of the Company, be disclosed by us, or by our affiliates,\nagents, representatives, advisors or employees, in any manner whatsoever, in whole or in part, and shall not be used by us, our affiliates, agents,\nrepresentatives, advisors or employees, other than to determine whether we wish to enter into, or other than in connection with, the transaction\ndescribed above. Moreover, we agree to reveal the Information only to our affiliates, agents, representatives, advisors and employees who need to\nknow the Information for the purpose of evaluating, or otherwise in connection with, the transaction described above who are informed of the\nconfidential nature of the Information. We agree to be responsible for any breach of this Agreement by our affiliates, agents, representatives,\nadvisors and employees.\n2. Without the prior written consent of the other party, neither party nor its representatives shall disclose to any person either the fact that discussions\nor negotiations are taking place concerning the possible transaction referred to herein or any of the terms, conditions or other facts with respect to\nany such possible transaction including the status thereof, except as required by applicable law or exchange listing agreements, rules or policies.\n3. All copies of the Information, except for that portion of the Information which consists of analyses, compilations, forecasts, studies or other\ndocuments prepared by us, our agents, representatives, advisors or employees, will be returned to the Company promptly upon request or if we\ndecide not to proceed with an acquisition of the Company (and we will inform the Company promptly of any such decision). At the time of such\nreturn, we will destroy any such analyses, compilations, forecasts, studies or other documents prepared by us, our agents, representatives, advisors or\nemployees.\n2\n4. The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a\nresult of disclosure by us, our affiliates, agents, representatives, advisors or employees, or (ii) become available to us or to our affiliates, agents,\nrepresentatives, advisors or employees on a non-confidential basis from a source which was not then prohibited from disclosing such Information to\nus by a legal, contractual or fiduciary obligation to the Company, or (iii) which was in our possession, or in the possession of our affiliates, agents,\nrepresentatives, advisors or employees, or otherwise available to us, or to our affiliates, agents, representatives, advisors or employees, on a non-\nconfidential basis prior to its disclosure to us or one or more of our affiliates, agents, representatives, advisors or employees, or (iv) which is\nindependently acquired or developed by us without violating any obligations under this Agreement.\n5. The above undertakings of non-disclosure and confidentiality shall remain in force for a period of two (2) years from the date of this Agreement,\nexcept that there shall be no time limit, and such undertakings shall continue indefinitely, with respect to Information regarding algorithms relating\nto the Company’s past, present and proposed products, the calibration of those products, the source code and applications software related to those\nproducts, and the analog signal processing section of the pre-amp pcba relating to those products.\n6. In the event that we or anyone to whom we transmit the Information pursuant to this Agreement is requested or becomes legally compelled to\ndisclose any of the Information (whether by oral questions, interrogatories, requests for Information or documents, subpoena, Civil Investigative\nDemand or similar process or otherwise), we will provide the Company with prompt notice, to the extent practicable, so that the Company may seek\na protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. We will cooperate with the Company,\nat the Company’s expense, to obtain such protective order or other appropriate remedy. In the event that such protective order or other remedy is not\nobtained, the Company agrees that such disclosure may be made without liability hereunder. We will furnish only that portion of the Information\nwhich we are, in the opinion of our counsel or the counsel of our representative, legally required to disclose and will use reasonable efforts to obtain\nreliable assurance that confidential treatment will be accorded the Information.\n7. We agree that for a period of one year from the date of this Agreement, we and our affiliates will not solicit for employment any employee of the\nCompany with whom we or our affiliates had direct contact in connection with our consideration of a possible transaction hereunder.\nNotwithstanding the foregoing, this paragraph shall not preclude our right to make generalized searches for employees by use of advertisements in\nthe media (including, without limitation, trade media) or by engaging search firms, so long as such general searches are not specifically targeted at\nsuch Company employees, and we shall not be prohibited from, and shall not be required to obtain the Company’s consent prior to, offering to\nemploy or employing any person who (i) contacts us on his or her own initiative without any direct or indirect solicitation by us, (ii) responds to an\nadvertisement or other general solicitation for employment not directed at employees of the Company, (iii) began employment discussions with us\nprior to the date of this agreement or (iv) is no longer employed by the Company at the time we commence employment discussions with such\nperson.\n3\n8. None of the Company or any of its affiliates, agents, advisors or representatives (i) has made or makes any representation or warranty, expressed\nor implied, as to the accuracy or completeness of the Information or (ii) shall have any liability whatsoever to us or our affiliates, agents,\nrepresentatives, advisors or employees relating to or resulting from the use of the Information or any errors therein or omissions therefrom. The\nInformation may include certain statements, estimates and projections provided by the Company with regard to the anticipated future performance of\nthe Company. Such statements, estimates and projections reflect various assumptions made by the Company concerning anticipated results, which\nassumptions may or may not prove to be correct. No representations are made as to the accuracy of such assumptions, statements, estimates or\nprojections, including any budget(s). The only information that will have any legal effect will be specifically represented in a definitive purchase\nagreement; and in no event will such definitive purchase agreement contain any representation as to the projections.\n9. You understand that (i) the Company shall conduct the process for a possible transaction as it, in its sole discretion, shall determine (including,\nwithout limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to us or any other person),\n(ii) any procedures relating to a potential transaction may be changed at any time without notice to you or any other person, (iii) the Company shall\nhave the right to reject or accept any potential buyer, proposal or offer, for any reason whatsoever, in its sole discretion, and (iv) neither we nor any\nof our affiliates, agents, advisors or representatives shall have any claims whatsoever against the Company or any of its respective directors, officers,\nshareholders, owners, affiliates or agents arising out of or relating to a potential transaction (other than those against the parties to a definitive\nagreement with you in accordance with the terms thereof). We agree that, subject to the terms of this Agreement, unless and until a definitive\npurchase agreement between the Company and us with regard to any transaction has been executed and delivered, neither the Company nor we will\nbe under any legal obligation of any kind whatsoever with respect to such transaction.\n10. In consideration of the Information being furnished to us, we hereby further agree that, without the prior written consent of the Board of\nDirectors of the Company, for a period of one year from the date hereof, neither we nor any of our affiliates (as such term is defined in Rule 12b-2\nunder the Securities Exchange Act of 1934, as amended), acting alone or as part of a group, will (i) acquire or offer or agree to acquire, directly or\nindirectly, by purchase or otherwise, any voting securities or securities convertible into voting securities of the Company, (ii) propose to enter into,\ndirectly or indirectly, any merger or business combination involving the Company or any of its subsidiaries, (iii) otherwise seek to influence or\ncontrol, in any manner whatsoever (including proxy solicitation or otherwise), the management or policies of the Company, (iv) assist, advise or\nencourage (including by knowingly providing or arranging financing for that purpose) any other person in doing any of the foregoing, (v) call,\nrequest or seek to have called any meeting of the shareholders of the Company or execute any written consent in lieu of a meeting of holders of any\nsecurities of the Company, (vi) otherwise act, to seek the removal of any member of the Board of Directors, seek to elect or place a representative on\nthe Board of Directors of the Company, or seek to control or influence the management, Board of Directors or policies of the Company, (vii) seek to\nhave the Company waive, amend or modify its governing documents (for example, its articles or bylaws), (viii) take any action which might force\nthe Company to make a public announcement regarding any of the types of matters\n4\nset forth above, (ix) make any request directly or indirectly, to amend or waive any provision of this section of this Agreement (including this\nsentence), (x) take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nother type of transaction or activity described in this section of this Agreement, or (xi) enter into any discussions or arrangements with any third\nparty with respect to any of the foregoing. The foregoing section shall not prevent us (alone or jointly with other sources of buyer financing) from\nmaking non-public proposals to the Company with respect to a possible transaction in compliance with written procedures provided to you by the\nCompany or its advisors. Notwithstanding the foregoing, in the event that the Board of Directors of the Company approves a transaction with any\nperson or entity that would result in such person or entity beneficially owning more than 20% of the outstanding voting securities of the Company\n(or a successor to the Company in a merger or consolidation transaction) or all or substantially all of the Company’s assets, or any person, entity or\n“group” (as defined in the 1934 Act), other than us or any of our affiliates, has commenced or publicly announced its intention to commence a tender\noffer for more than 20% of the outstanding voting securities of the Company, the provisions of this Section 10 shall terminate.\n11. Tt is further understood and agreed that Bruce Barrett, Mary Ann Victor or Bill Iacona will arrange for appropriate contacts with the Company. It\nis also understood and agreed that all (i) communications regarding a possible transaction, (ii) requests for additional information, (iii) requests for\nfacility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed exclusively to Bruce\nBarrett, Mary Ann Victor or Bill Iacona, and that none of us or our affiliates, agents, advisors or representatives will initiate or cause to be initiated\nany communication with any director, officer, employee or vendor of the Company concerning the Information or a potential transaction.\n12. We understand and agree that the Company may be irreparably harmed by violation of this Agreement. Monetary damages alone may not be a\nsufficient remedy for any breach of this Agreement and, therefore, in addition to the Company’s other rights and remedies, the Company will be\nentitled to seek specific performance and injunctive or other equitable relief to enforce this Agreement. In addition, in the event of litigation\ninvolving this Agreement, the prevailing party will be entitled to attorneys’ fees and other costs incurred in connection with such litigation.\n13. The Company reserves the right to assign its rights, powers and privileges under this Agreement (including, without limitation, the right to\nenforce the terms of this Agreement) to any successor — in — interest to the Company by merger or sale of all or substantially all of the assets of the\nCompany.\n14. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent\nof such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of enforceability of such\nprovisions in any other jurisdiction.\n5\n15. This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to the\nprinciples of conflicts of law.\nVery truly yours,\nTYCO HEALTHCARE GROUP LP d/b/a COVIDIEN\nBy: /s/ Matthew J. Nicolella\nMatthew J. Nicolella\nTitle: Vice President\nAccepted and agreed:\nSOMANETICS CORPORATION\nBy: /s/ Bruce J. Barrett\nBruce J. Barrett\nTitle: President and Chief Executive Officer	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nMarch 16, 2010\nSomanetics Corporation\n1653 East Maple Road\nTroy, MI 48083\nLadies and Gentlemen:\nIn connection with our possible interest in a transaction involving the acquisition of Somanetics Corporation (the "Company"), you are furnishing us\nor\nour\nrepresentatives with certain information which is either non-public, confidential or proprietary in nature. All information furnished to us or\nour representatives by the Company or any of its employees, representatives, agents or advisors (including attorneys, accountants and financial\nadvisors), shall be considered confidential and proprietary, and together with analyses, compilations, forecasts, studies or other documents prepared\nby\nus, our agents, advisors (including attorneys, accountants and financial advisors), representatives or employees which contain such information, is\nhereinafter referred to as the "Information". In consideration of the Company furnishing us with the Information, we agree that:\n1. The Information will be kept confidential and shall not, without the prior written consent of the Company, be disclosed by us, or by our affiliates,\nagents, representatives, advisors or employees, in any manner whatsoever, in whole or in part, and shall not be used by us, our affiliates, agents,\nrepresentatives, advisors or employees, other than to determine whether we wish to enter into, or other than in connection with, the transaction\ndescribed above. Moreover, we agree to reveal the Information only to our affiliates, agents, representatives, advisors and employees who need\nto\nknow the Information for the purpose of evaluating, or otherwise in connection with, the transaction described above who are informed of the\nconfidential nature of the Information. We agree to be responsible for any breach of this Agreement by our affiliates, agents, representatives,\nadvisors and employees.\n2. Without the prior written consent of the other party, neither party nor its representatives shall disclose to any person either the fact that discussions\nor negotiations are taking place concerning the possible transaction referred to herein or any of the terms, conditions or other facts with respect\nto\nany such possible transaction including the status thereof, except as required by applicable law or exchange listing agreements, rules or policies.\n3. All copies of the Information, except for that portion of the Information which consists of analyses, compilations, forecasts, studies or other\ndocuments prepared by us, our agents, representatives, advisors or employees, will be returned to the Company promptly upon request or if we\ndecide not to proceed with an acquisition of the Company (and we will inform the Company promptly of any such decision). At the time of such\nreturn, we will destroy any such analyses, compilations, forecasts, studies or other documents prepared by us, our agents, representatives, advisors\nor\nemployees.\n1\n2\n4. The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a\nresult of disclosure by us, our affiliates, agents, representatives, advisors or employees, or (ii) become available to us or to our affiliates, agents,\nrepresentatives, advisors or employees on a non-confidential basis from a source which was not then prohibited from disclosing such Information to\nus\nby a legal, contractual or fiduciary obligation to the Company, or (iii) which was in our possession, or in the possession of our affiliates, agents,\nrepresentatives, advisors or employees, or otherwise available to us, or to our affiliates, agents, representatives, advisors or employees, on a non-\nconfidential basis prior to its disclosure to us or one or more of our affiliates, agents, representatives, advisors or employees, or (iv) which is\nindependently acquired or developed by us without violating any obligations under this Agreement.\n5.\nThe above undertakings of non-disclosure and confidentiality shall remain in force for a period of two (2) years from the date of this Agreement,\nexcept that there shall be no time limit, and such undertakings shall continue indefinitely, with respect to Information regarding algorithms relating\nto the Company's past, present and proposed products, the calibration of those products, the source code and applications software related to those\nproducts, and the analog signal processing section of the pre-amp pcba relating to those products.\n6. In the event that we or anyone to whom we transmit the Information pursuant to this Agreement is requested or becomes legally compelled to\ndisclose any of the Information (whether by oral questions, interrogatories, requests for Information or documents, subpoena, Civil Investigative\nDemand or similar process or otherwise), we will provide the Company with prompt notice, to the extent practicable, so that the Company may seek\na protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. We will cooperate with the Company,\nat the Company's expense, to obtain such protective order or other appropriate remedy. In the event that such protective order or other remedy is not\nobtained, the Company agrees that such disclosure may be made without liability hereunder. We will furnish only that portion of the Information\nwhich we are, in the opinion of our counsel or the counsel of our representative, legally required to disclose and will use reasonable efforts to\nobtain\nreliable assurance that confidential treatment will be accorded the Information.\n7. We agree that for a period of one year from the date of this Agreement, we and our affiliates will not solicit for employment any employee of\nthe\nCompany with whom we or our affiliates had direct contact in connection with our consideration of a possible transaction hereunder.\nNotwithstanding the foregoing, this paragraph shall not preclude our right to make generalized searches for employees by use of advertisements in\nthe media (including, without limitation, trade media) or by engaging search firms, so long as such general searches are not specifically targeted\nat\nsuch Company employees, and we shall not be prohibited from, and shall not be required to obtain the Company's consent prior to, offering to\nemploy\nor\nemploying\nany\nperson\nwho\n(i)\ncontacts\nus\non\nhis\nor\nher\nown\ninitiative\nwithout\nany\ndirect\nor\nindirect\nsolicitation\nby\nus,\n(ii)\nresponds\nto\nan\nadvertisement or other general solicitation for employment not directed at employees of the Company, (iii) began employment discussions with\nus\nprior to the date of this agreement or (iv) is no longer employed by the Company at the time we commence employment discussions with such\nperson.\n3\n8.\nNone of the Company or any of its affiliates, agents, advisors or representatives (i) has made or makes any representation or warranty, expressed\nor implied, as to the accuracy or completeness of the Information or (ii) shall have any liability whatsoever to us or our affiliates, agents,\nrepresentatives, advisors or employees relating to or resulting from the use of the Information or any errors therein or omissions therefrom. The\nInformation may include certain statements, estimates and projections provided by the Company with regard to the anticipated future performance of\nthe Company. Such statements, estimates and projections reflect various assumptions made by the Company concerning anticipated results, which\nassumptions may or may not prove to be correct. No representations are made as to the accuracy of such assumptions, statements, estimates or\nprojections, including any budget(s). The only information that will have any legal effect will be specifically represented in a definitive purchase\nagreement; and in no event will such definitive purchase agreement contain any representation as to the projections.\n9. You understand that (i) the Company shall conduct the process for a possible transaction as it, in its sole discretion, shall determine (including,\nwithout limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to us or any other person),\n(ii) any procedures relating to a potential transaction may be changed at any time without notice to you or any other person, (iii) the Company shall\nhave\nthe\nright\nto\nreject\nor\naccept\nany\npotential\nbuyer,\nproposal\nor\noffer,\nfor\nany\nreason\nwhatsoever,\nin\nits\nsole\ndiscretion,\nand\n(iv)\nneither\nwe\nnor\nany\nof our affiliates, agents, advisors or representatives shall have any claims whatsoever against the Company or any of its respective directors, officers,\nshareholders, owners, affiliates or agents arising out of or relating to a potential transaction (other than those against the parties to a definitive\nagreement with you in accordance with the terms thereof). We agree that, subject to the terms of this Agreement, unless and until a definitive\npurchase agreement between the Company and us with regard to any transaction has been executed and delivered, neither the Company nor we will\nbe under any legal obligation of any kind whatsoever with respect to such transaction.\n10. In consideration of the Information being furnished to us, we hereby further agree that, without the prior written consent of the Board of\nDirectors of the Company, for a period of one year from the date hereof, neither we nor any of our affiliates (as such term is defined in Rule 12b-2\nunder the Securities Exchange Act of 1934, as amended), acting alone or as part of a group, will (i) acquire or offer or agree to acquire, directly\nor\nindirectly, by purchase or otherwise, any voting securities or securities convertible into voting securities of the Company, (ii) propose to enter into,\ndirectly or indirectly, any merger or business combination involving the Company or any of its subsidiaries, (iii) otherwise seek to influence\nor\ncontrol, in any manner whatsoever (including proxy solicitation or otherwise), the management or policies of the Company, (iv) assist, advise or\nencourage (including by knowingly providing or arranging financing for that purpose) any other person in doing any of the foregoing, (v) call,\nrequest or seek to have called any meeting of the shareholders of the Company or execute any written consent in lieu of a meeting of holders of any\nsecurities of the Company, (vi) otherwise act, to seek the removal of any member of the Board of Directors, seek to elect or place a representative on\nthe Board of Directors of the Company, or seek to control or influence the management, Board of Directors or policies of the Company, (vii) seek\nto\nhave the Company waive, amend or modify its governing documents (for example, its articles or bylaws), (viii) take any action which might\nforce\nthe Company to make a public announcement regarding any of the types of matters\n4\nset forth above, (ix) make any request directly or indirectly, to amend or waive any provision of this section of this Agreement (including this\nsentence), (x) take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nother type of transaction or activity described in this section of this Agreement, or (xi) enter into any discussions or arrangements with any third\nparty with respect to any of the foregoing. The foregoing section shall not prevent us (alone or jointly with other sources of buyer financing)\nfrom\nmaking non-public proposals to the Company with respect to a possible transaction in compliance with written procedures provided to you by the\nCompany or its advisors. Notwithstanding the foregoing, in the event that the Board of Directors of the Company approves a transaction with any\nperson or entity that would result in such person or entity beneficially owning more than 20% of the outstanding voting securities of the Company\n(or a successor to the Company in a merger or consolidation transaction) or all or substantially all of the Company's assets, or any person, entity or\n"group" (as defined in the 1934 Act), other than us or any of our affiliates, has commenced or publicly announced its intention to commence a tender\noffer for more than 20% of the outstanding voting securities of the Company, the provisions of this Section 10 shall terminate.\n11. It is further understood and agreed that Bruce Barrett, Mary Ann Victor or Bill Iacona will arrange for appropriate contacts with the Company. It\nis\nalso\nunderstood\nand\nagreed\nthat\nall\n(i)\ncommunications\nregarding\na\npossible\ntransaction,\n(ii)\nrequests\nfor\nadditional\ninformation,\n(iii)\nrequests\nfor\nfacility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed exclusively to Bruce\nBarrett, Mary Ann Victor or Bill Iacona, and that none of us or our affiliates, agents, advisors or representatives will initiate or cause to be\ninitiated\nany communication with any director, officer, employee or vendor of the Company concerning the Information or a potential transaction.\n12. We understand and agree that the Company may be irreparably harmed by violation of this Agreement. Monetary damages alone may not be a\nsufficient remedy for any breach of this Agreement and, therefore, in addition to the Company's other rights and remedies, the Company\nwill\nbe\nentitled to seek specific performance and injunctive or other equitable relief to enforce this Agreement. In addition, in the event of litigation\ninvolving this Agreement, the prevailing party will be entitled to attorneys' fees and other costs incurred in connection with such litigation.\n13. The Company reserves the right to assign its rights, powers and privileges under this Agreement (including, without limitation, the right to\nenforce the terms of this Agreement) to any successor - in - interest to the Company by merger or sale of all or substantially all of the assets of the\nCompany.\n14. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent\nof such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of enforceability of such\nprovisions in any other jurisdiction.\n5\n15. This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to the\nprinciples of conflicts of law.\nVery truly yours,\nTYCO HEALTHCARE GROUP LP d/b/a COVIDIEN\nBy: /s/ Matthew J. Nicolella\nMatthew J. Nicolella\nTitle: Vice President\nAccepted and agreed:\nSOMANETICS CORPORATION\nBy:\n/s/ Bruce J. Barrett\nBruce J. Barrett\nTitle: President and Chief Executive Officer	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nMarch 16, 2010\nSomanetics Corporation\n1653 East Maple Road\nTroy, MI 48083\nLadies and Gentlemen:\nIn connection with our possible interest in a transaction involving the acquisition of Somanetics Corporation (the “Company”), you are furnishing us\nor our representatives with certain information which is either non-public, confidential or proprietary in nature. All information furnished to us or\nour representatives by the Company or any of its employees, representatives, agents or advisors (including attorneys, accountants and financial\nadvisors), shall be considered confidential and proprietary, and together with analyses, compilations, forecasts, studies or other documents prepared\nby us, our agents, advisors (including attorneys, accountants and financial advisors), representatives or employees which contain such information, is\nhereinafter referred to as the “Information”. In consideration of the Company furnishing us with the Information, we agree that:\n1. The Information will be kept confidential and shall not, without the prior written consent of the Company, be disclosed by us, or by our affiliates,\nagents, representatives, advisors or employees, in any manner whatsoever, in whole or in part, and shall not be used by us, our affiliates, agents,\nrepresentatives, advisors or employees, other than to determine whether we wish to enter into, or other than in connection with, the transaction\ndescribed above. Moreover, we agree to reveal the Information only to our affiliates, agents, representatives, advisors and employees who need to\nknow the Information for the purpose of evaluating, or otherwise in connection with, the transaction described above who are informed of the\nconfidential nature of the Information. We agree to be responsible for any breach of this Agreement by our affiliates, agents, representatives,\nadvisors and employees.\n2. Without the prior written consent of the other party, neither party nor its representatives shall disclose to any person either the fact that discussions\nor negotiations are taking place concerning the possible transaction referred to herein or any of the terms, conditions or other facts with respect to\nany such possible transaction including the status thereof, except as required by applicable law or exchange listing agreements, rules or policies.\n3. All copies of the Information, except for that portion of the Information which consists of analyses, compilations, forecasts, studies or other\ndocuments prepared by us, our agents, representatives, advisors or employees, will be returned to the Company promptly upon request or if we\ndecide not to proceed with an acquisition of the Company (and we will inform the Company promptly of any such decision). At the time of such\nreturn, we will destroy any such analyses, compilations, forecasts, studies or other documents prepared by us, our agents, representatives, advisors or\nemployees.\n1\n2\n4. The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a\nresult of disclosure by us, our affiliates, agents, representatives, advisors or employees, or (ii) become available to us or to our affiliates, agents,\nrepresentatives, advisors or employees on a non-confidential basis from a source which was not then prohibited from disclosing such Information to\nus by a legal, contractual or fiduciary obligation to the Company, or (iii) which was in our possession, or in the possession of our affiliates, agents,\nrepresentatives, advisors or employees, or otherwise available to us, or to our affiliates, agents, representatives, advisors or employees, on a non-\nconfidential basis prior to its disclosure to us or one or more of our affiliates, agents, representatives, advisors or employees, or (iv) which is\nindependently acquired or developed by us without violating any obligations under this Agreement.\n5. The above undertakings of non-disclosure and confidentiality shall remain in force for a period of two (2) years from the date of this Agreement,\nexcept that there shall be no time limit, and such undertakings shall continue indefinitely, with respect to Information regarding algorithms relating\nto the Company’s past, present and proposed products, the calibration of those products, the source code and applications software related to those\nproducts, and the analog signal processing section of the pre-amp pcba relating to those products.\n6. In the event that we or anyone to whom we transmit the Information pursuant to this Agreement is requested or becomes legally compelled to\ndisclose any of the Information (whether by oral questions, interrogatories, requests for Information or documents, subpoena, Civil Investigative\nDemand or similar process or otherwise), we will provide the Company with prompt notice, to the extent practicable, so that the Company may seek\na protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. We will cooperate with the Company,\nat the Company’s expense, to obtain such protective order or other appropriate remedy. In the event that such protective order or other remedy is not\nobtained, the Company agrees that such disclosure may be made without liability hereunder. We will furnish only that portion of the Information\nwhich we are, in the opinion of our counsel or the counsel of our representative, legally required to disclose and will use reasonable efforts to obtain\nreliable assurance that confidential treatment will be accorded the Information.\n7. We agree that for a period of one year from the date of this Agreement, we and our affiliates will not solicit for employment any employee of the\nCompany with whom we or our affiliates had direct contact in connection with our consideration of a possible transaction hereunder.\nNotwithstanding the foregoing, this paragraph shall not preclude our right to make generalized searches for employees by use of advertisements in\nthe media (including, without limitation, trade media) or by engaging search firms, so long as such general searches are not specifically targeted at\nsuch Company employees, and we shall not be prohibited from, and shall not be required to obtain the Company’s consent prior to, offering to\nemploy or employing any person who (i) contacts us on his or her own initiative without any direct or indirect solicitation by us, (ii) responds to an\nadvertisement or other general solicitation for employment not directed at employees of the Company, (iii) began employment discussions with us\nprior to the date of this agreement or (iv) is no longer employed by the Company at the time we commence employment discussions with such\nperson.\n3\n8. None of the Company or any of its affiliates, agents, advisors or representatives (i) has made or makes any representation or warranty, expressed\nor implied, as to the accuracy or completeness of the Information or (ii) shall have any liability whatsoever to us or our affiliates, agents,\nrepresentatives, advisors or employees relating to or resulting from the use of the Information or any errors therein or omissions therefrom. The\nInformation may include certain statements, estimates and projections provided by the Company with regard to the anticipated future performance of\nthe Company. Such statements, estimates and projections reflect various assumptions made by the Company concerning anticipated results, which\nassumptions may or may not prove to be correct. No representations are made as to the accuracy of such assumptions, statements, estimates or\nprojections, including any budget(s). The only information that will have any legal effect will be specifically represented in a definitive purchase\nagreement; and in no event will such definitive purchase agreement contain any representation as to the projections.\n9. You understand that (i) the Company shall conduct the process for a possible transaction as it, in its sole discretion, shall determine (including,\nwithout limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to us or any other person),\n(ii) any procedures relating to a potential transaction may be changed at any time without notice to you or any other person, (iii) the Company shall\nhave the right to reject or accept any potential buyer, proposal or offer, for any reason whatsoever, in its sole discretion, and (iv) neither we nor any\nof our affiliates, agents, advisors or representatives shall have any claims whatsoever against the Company or any of its respective directors, officers,\nshareholders, owners, affiliates or agents arising out of or relating to a potential transaction (other than those against the parties to a definitive\nagreement with you in accordance with the terms thereof). We agree that, subject to the terms of this Agreement, unless and until a definitive\npurchase agreement between the Company and us with regard to any transaction has been executed and delivered, neither the Company nor we will\nbe under any legal obligation of any kind whatsoever with respect to such transaction.\n10. In consideration of the Information being furnished to us, we hereby further agree that, without the prior written consent of the Board of\nDirectors of the Company, for a period of one year from the date hereof, neither we nor any of our affiliates (as such term is defined in Rule 12b-2\nunder the Securities Exchange Act of 1934, as amended), acting alone or as part of a group, will (i) acquire or offer or agree to acquire, directly or\nindirectly, by purchase or otherwise, any voting securities or securities convertible into voting securities of the Company, (ii) propose to enter into,\ndirectly or indirectly, any merger or business combination involving the Company or any of its subsidiaries, (iii) otherwise seek to influence or\ncontrol, in any manner whatsoever (including proxy solicitation or otherwise), the management or policies of the Company, (iv) assist, advise or\nencourage (including by knowingly providing or arranging financing for that purpose) any other person in doing any of the foregoing, (v) call,\nrequest or seek to have called any meeting of the shareholders of the Company or execute any written consent in lieu of a meeting of holders of any\nsecurities of the Company, (vi) otherwise act, to seek the removal of any member of the Board of Directors, seek to elect or place a representative on\nthe Board of Directors of the Company, or seek to control or influence the management, Board of Directors or policies of the Company, (vii) seek to\nhave the Company waive, amend or modify its governing documents (for example, its articles or bylaws), (viii) take any action which might force\nthe Company to make a public announcement regarding any of the types of matters\n4\nset forth above, (ix) make any request directly or indirectly, to amend or waive any provision of this section of this Agreement (including this\nsentence), (x) take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nother type of transaction or activity described in this section of this Agreement, or (xi) enter into any discussions or arrangements with any third\nparty with respect to any of the foregoing. The foregoing section shall not prevent us (alone or jointly with other sources of buyer financing) from\nmaking non-public proposals to the Company with respect to a possible transaction in compliance with written procedures provided to you by the\nCompany or its advisors. Notwithstanding the foregoing, in the event that the Board of Directors of the Company approves a transaction with any\nperson or entity that would result in such person or entity beneficially owning more than 20% of the outstanding voting securities of the Company\n(or a successor to the Company in a merger or consolidation transaction) or all or substantially all of the Company’s assets, or any person, entity or\n“group” (as defined in the 1934 Act), other than us or any of our affiliates, has commenced or publicly announced its intention to commence a tender\noffer for more than 20% of the outstanding voting securities of the Company, the provisions of this Section 10 shall terminate.\n11. It is further understood and agreed that Bruce Barrett, Mary Ann Victor or Bill Iacona will arrange for appropriate contacts with the Company. It\nis also understood and agreed that all (i) communications regarding a possible transaction, (ii) requests for additional information, (iii) requests for\nfacility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed exclusively to Bruce\nBarrett, Mary Ann Victor or Bill Iacona, and that none of us or our affiliates, agents, advisors or representatives will initiate or cause to be initiated\nany communication with any director, officer, employee or vendor of the Company concerning the Information or a potential transaction.\n12. We understand and agree that the Company may be irreparably harmed by violation of this Agreement. Monetary damages alone may not be a\nsufficient remedy for any breach of this Agreement and, therefore, in addition to the Company’s other rights and remedies, the Company will be\nentitled to seek specific performance and injunctive or other equitable relief to enforce this Agreement. In addition, in the event of litigation\ninvolving this Agreement, the prevailing party will be entitled to attorneys’ fees and other costs incurred in connection with such litigation.\n13. The Company reserves the right to assign its rights, powers and privileges under this Agreement (including, without limitation, the right to\nenforce the terms of this Agreement) to any successor – in – interest to the Company by merger or sale of all or substantially all of the assets of the\nCompany.\n14. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent\nof such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of enforceability of such\nprovisions in any other jurisdiction.\n5\n15. This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to the\nprinciples of conflicts of law.\nVery truly yours,\nTYCO HEALTHCARE GROUP LP d/b/a COVIDIEN\nBy: /s/ Matthew J. Nicolella\nTitle:\nMatthew J. Nicolella\nVice President\nAccepted and agreed:\nSOMANETICS CORPORATION\nBy: /s/ Bruce J. Barrett\nTitle:\nBruce J. Barrett\nPresident and Chief Executive Officer
5368d4c4212375ed16c50874d99d179d.pdf	effective_date jurisdiction party term	EX-99.2 3 dex992.htm CONFIDENTIALITY AGREEMENT\nExhibit 99.2\nCONFIDENTIAL\nEXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nJanuary 12, 2011\nDouglas H. Miller\nc/o EXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nDear Mr. Miller:\nIn connection with the consideration of a possible negotiated buyout transaction (the “Transaction”) involving you and EXCO Resources, Inc.,\na Texas corporation (the “Company,” which term shall, for purposes of this letter agreement, include its subsidiaries), the Special Committee of the\nBoard of Directors of the Company formed on November 3, 2010 (the “Special Committee”) is prepared to make available to you, on behalf of the\nCompany, certain information concerning the Company, upon the terms and subject to the conditions set forth in this letter agreement. As a condition\nto such information being furnished to you, you agree to comply with all the terms of this letter agreement.\n1. Definitions.\n1.1 Evaluation Material. The term “Evaluation Material” shall mean all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries or\njoint ventures, or any of the businesses, properties, assets, operations, products, services, liabilities, condition (financial or otherwise), employees,\nprospects and/or results of operations of any of the foregoing (whether prepared by the Company, any of its Representatives (as defined below) or\notherwise) that previously has been or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined\nbelow) (collectively, “Information”), as well as all notes, analyses, compilations, summaries, extracts, studies, interpretations or other materials\nprepared by you or any of your Representatives, but only to the extent that the foregoing contain, reflect or are based upon any Information\n(“Derivative Information”). The term “Evaluation Material” shall also be deemed to include, without limitation, the status or terms and conditions of\nany discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term “Evaluation Material” does not\ninclude information or any portion thereof that (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any\nof your Representatives in violation of this letter agreement or any other obligation of\n1\nconfidentiality to the Company), (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause\n(ii) shall not be applicable), or (iii) becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives (other than in your capacity as an officer or director of the Company, in which case this clause (iii) shall not be applicable);\nprovided, that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement\nor otherwise) to the Company or any of its Representatives (including the Special Committee).\n1.2 Other Definitions. As used in this letter agreement:\n(i) The term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Exchange Act;\n(ii) The term “Acquisition Transaction” shall mean (a) any merger, consolidation or other business combination, or liquidation, reorganization,\nor similar transaction, that results in any person or group directly or indirectly owning 50% or more of the voting securities of the Company, (b) the\nacquisition or sale (through tender or exchange offer, issuance or otherwise) of 50% or more of the voting securities of the Company, (c) the sale,\nlease or other actual or effective disposition of 50% or more of the assets of the Company based on the least of the book value or fair market value of\nsuch assets or the percentage of revenues or net income generated by such assets during the 12 months ending on December 31, 2010, or (d) any\ncombination of the foregoing, whether as a single transaction or a series of transactions;\n(iii) The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules, regulations and schedules\npromulgated thereunder;\n(iv) The term “Fully Financed” shall mean, when used with respect to an offer, having financing for such offer (a) in an amount sufficient to\npay the purchase price and any transaction fees in connection with, and to refinance any debt that is reasonably expected to become payable upon\nconsummation of, an Acquisition Transaction that constitutes a Superior Proposal and (b) that is evidenced by executed commitment papers and/or\nexecuted definitive financing documentation from one or more bona fide financing sources with aggregate sufficient capital to provide such\nfinancing, which commitment papers and/or documentation contain terms and conditions customary for transactions of this type and size of\ntransaction.\n(v) The term “group” shall have the meaning given to that term (or as that term is used) in Section 13(d)(3) of the Exchange Act;\n(vi) The term “person” shall be broadly interpreted to include any individual, corporation, partnership, limited liability company, group or\nother entity;\n(vii) The term “Representatives” shall mean, with respect to any person, such person’s affiliates (including, without limitation, subsidiaries)\nand joint ventures and any of the foregoing persons’ respective directors, officers, employees, agents, representatives and advisors (including,\nwithout limitation, financial advisors, bankers, consultants, agents, counsel and\n2\naccountants) and Approved Financing Sources; provided, however, that, when used with respect to the Company, the Company’s Representatives\nshall not include you or any other director of the Company who is also personnel of any Approved Financing Source, other than when acting in your\nor their capacity as a director or officer of the Company; and\n(viii) The term “Superior Proposal” shall mean, when used with respect to a pending Acquisition Transaction, any Fully Financed, bona fide\nwritten offer to acquire all of the shares of common stock of the Company not already owned by the offeror (or by any other persons acting in\nconcert with the offeror) (a) for cash at a price per share at least $1.00 higher than the price per share being offered in such pending Acquisition\nTransaction, (b) pursuant to a transaction that, taking into account all relevant factors, including without limitation, the source of financing,\nregulatory concerns and other factors, is reasonably likely to be consummated, (c) that is otherwise on customary terms and conditions and (d) that\ncan immediately be accepted by the Special Committee (subject to any legal or other requirements binding upon, or imposed by, the Special\nCommittee, such as the need to evaluate and approve the offer under applicable law). For purposes of determining whether an offer constitutes a\nSuperior Proposal, in the event the consideration being offered in such pending Acquisition Transaction includes any publicly traded equity\nsecurities, those equity securities shall be ascribed a value equal to the volume weighted average of the closing prices of such security on the primary\nsecurities exchange on which such security is traded for the five (5) consecutive trading days ending on and including the second trading day prior to\nthe date on which you make your offer to the Special Committee.\n1.3 Special Committee Authority. Unless otherwise expressly agreed to in writing by the Special Committee, any and all actions contemplated\nhereby to be taken by the Company shall be taken by the Special Committee on behalf of the Company; provided, however, that any action\ncontemplated hereby to be taken by the Special Committee shall be taken by the Company from and after the dissolution of the Special Committee.\n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives (other than Approved\nFinancing Sources), to: (i) use the Evaluation Material solely for the purpose of evaluating, negotiating, financing, consummating, and implementing\na possible Transaction and your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in accordance with\nthis letter agreement, and (iii) without the prior written consent of the Special Committee, not disclose any of the Evaluation Material to any person;\nprovided, however, that you may disclose any of the Evaluation Material to (a) your Representatives (including Approved Financing Sources) solely\nfor purposes of evaluating, negotiating, financing, consummating and/or implementing a possible Transaction and your possible participation in the\nTransaction who agree to be bound by the terms hereof to the same extent as if they were parties hereto; provided, however, that, without the Special\nCommittee’s prior consent, you shall not, and you shall cause your Representatives (other than Approved Financing Sources) not to, disclose to any\nof your Approved Financing Sources any Evaluation Material (other than Derivative Information that contains, reflects and is based upon only\nInformation that has already been provided to the Special Committee or its financial advisors, and no other Information) unless such Evaluation\nMaterial has already been provided to the Special Committee or its financial advisors, and (b) as otherwise permitted by Paragraph 2.2 hereof.\n3\n2.2 Compulsory Disclosure. In the event that you or any of your Representatives (other than Approved Financing Sources) receives a request\n(by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by\nlaw, regulation, or regulatory authority or order or any rule of any stock exchange to which you or any of your Representatives is subject (“Law”) to\ndisclose, any of the Evaluation Material, you or such Representative (other than Approved Financing Sources) shall, unless prohibited by Law,\n(i) provide the Company and the Special Committee with prompt written notice of such request or requirement, along with, to the extent applicable,\na copy of the request and the proposed disclosure, the circumstances surrounding such request or requirement, the reason that such disclosure is\nrequired and the time and place such disclosure is expected to be made, in each case with sufficient specificity so that the Company and/or the\nSpecial Committee may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement,\nand (ii) if requested by the Company and/or the Special Committee, assist the Company and/or the Special Committee (in each case, at the\nCompany’s sole expense) in seeking a protective order or other appropriate remedy in response to such request or requirement. Without limiting the\ngenerality of the foregoing, you shall not, and shall cause your Representatives (other than Approved Financing Sources) not to, oppose any action\nby the Company and/or the Special Committee to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1, if, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Company and the Special Committee, you are, or any of your Representatives\nis, nonetheless, on the advice of counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises is required by Law to be disclosed,\nprovided that you, or, if applicable, such Representative, exercise commercially reasonable efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder. Notwithstanding the foregoing,\nyou may make filings (and disclosures required therein) under Section 13(d) of the Exchange Act that are on the advice of counsel required to be\nmade by you or your Representatives without complying with this Paragraph 2.2; provided, that you have provided notice of your intent to make\nsuch filing (along with a reasonable description of the material items that will be disclosed in such filing) to the Special Committee as promptly as\npractical and in any event at least eight (8) hours prior to the filing thereof.\n2.3 Information Request Procedures. You further agree that, without the prior written consent of the Special Committee but subject to\nParagraph 6.2 hereof, all communications from you or your Representatives to the Company regarding any Transaction, including, without\nlimitation, requests for Information, will be submitted only to the Representatives of the Special Committee listed on Annex A hereto or to such\nother person or persons as the Special Committee may direct in writing and, unless expressly directed to the contrary by the Special Committee, not\nto the Company or any of its Representatives. Subject to Paragraph 6.2 hereof and other than with respect to Approved Financing Sources, you agree\nthat you will not, and you will cause\n4\nyour Representatives (other than Approved Financing Sources) not to, engage in any discussions with the Company or any of its suppliers, vendors,\nservice providers, joint venture partners, consultants or lenders regarding any Transaction without the prior consent of the Special Committee.\nNotwithstanding the foregoing and subject to the proviso in Paragraph 2.1(iii)(a), you shall not be prohibited from engaging in any communications\nwith any director of the Company who is also personnel of any Approved Financing Source.\n2.4 Return and Destruction of Evaluation Material. At any time upon the request of the Special Committee for any reason, you will promptly\n(i) deliver to the Special Committee all Evaluation Material (other than Derivative Information) in the possession of you or any of your\nRepresentatives (other than Approved Financing Sources) and (ii) at your election, deliver to the Special Committee or destroy all other Evaluation\nMaterial constituting Derivative Information in your or their possession, in each case without keeping any copies, in whole or part, in any medium\nwhatsoever, thereof. In the event of such a request, you shall deliver to the Special Committee a certificate stating that you have complied with all of\nthe requirements of this Paragraph 2.4. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions\nregarding the Transaction, you and your Representatives may retain Evaluation Material as required by Law or internal document retention policies\nsolely for such purposes (and not for the purposes provided for in Paragraph 2.1); provided, that you and your Representatives will continue to be\nbound by your obligations of confidentiality (including, without limitation, with respect to any Evaluation Material destroyed or not returned\npursuant to this Paragraph 2.4) and other obligations hereunder.\n2.5 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Special Committee or any of their respective\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree\nthat none of the Company, the Special Committee or any of their respective Representatives shall have any liability to you or any of your\nRepresentatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you or any of\nyour Representatives derive from the Evaluation Material. Only those representations or warranties that are made in a final definitive agreement\nproviding for the Transaction, when, as and if executed and delivered by the parties, and subject to such limitations and restrictions as may be\nspecified therein, will have any legal effect.\n2.6 Privileges. The Company does not intend to waive, or to cause any of its Representatives to waive, the attorney-client, attorney work\nproduct or other applicable privilege of the Company or any of its subsidiaries or joint ventures (“Privilege”) by providing any Evaluation Material\nsubject to a Privilege, and any production by the Company or any of its Representatives of such Evaluation Material shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company or any of its Representatives of Evaluation\nMaterials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request by the\nCompany or any of its Representatives, you will, and you will cause your Representatives (other than Approved Financing Sources) to, immediately\nreturn and/or destroy such inadvertently produced Evaluation Materials.\n5\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n3. Non-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one (1) year from the date hereof, you\nwill not, and will cause your Representatives (other than your Approved Financing Sources and third party advisors not taking action on your behalf\nor at your direction) not to, directly or indirectly, without obtaining the prior written consent of the Company and the Special Committee, solicit for\nemployment or employ any of the officers or senior employees of the Company or any of its subsidiaries or joint ventures, other than officers or\nemployees who have ceased to be such prior to your solicitation or employment of them; provided, however, that the foregoing shall not restrict your\nability to conduct generalized searches for officers or employees by use of advertisements in periodicals of general circulation or general\nsolicitations through recruiting agencies, in each case not directed at such officers or employees.\n4. Standstill and Related Provisions.\n4.1 Standstill Provisions. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of fifteen\n(15) months from the date hereof (the “Restricted Period”), unless expressly permitted or authorized hereby or in writing by the Special Committee\nto do so, you will not, and you will cause your Representatives (other than Approved Financing Sources and third party advisors not taking action on\nyour behalf or at your direction) not to, directly or indirectly, acting alone or as part of a group: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any (a) voting or other equity securities or direct or indirect rights to acquire any voting or other\nequity securities of the Company or any of its subsidiaries or joint ventures, or (b) any other securities, rights or interests, including without\nlimitation, options, swaps, derivatives or convertible or other similar instruments, whether real or synthetic, which give you the right to vote or to\ndirect the voting of any voting or equity securities of the Company or any of its subsidiaries or joint ventures; (ii) enter into or agree, offer, propose\nor seek to enter into, or otherwise be involved in or part of, directly or indirectly, any Acquisition Transaction; (iii) make, or in any way participate\nin, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or\nseek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company in connection with or related in\nany way to an Acquisition Transaction; (iv) form, join or in any way participate in a group with respect to any voting or other equity securities of the\nCompany or any of its subsidiaries or joint ventures (other than a Permitted Group (as defined below)); (v) seek or propose, alone or in concert with\nothers, to influence or control the management or policies of the Company or any of its subsidiaries or joint ventures in connection with or related in\nany way to an Acquisition Transaction; (vi) directly or indirectly enter into any discussions, negotiations, arrangements or understandings with any\nother person (other than Approved Financing Sources to the extent permitted hereby) with respect to any of the foregoing activities or propose any of\nsuch activities\n6\nto any other person (other than Approved Financing Sources to the extent permitted hereby); (vii) advise, assist, encourage, or act as a financing\nsource for or otherwise invest in any other person who may serve as a financing source in connection with any of the foregoing activities (other than\nApproved Financing Sources); (viii) disclose (except to the extent permitted hereby, to the Company, the Special Committee or their respective\nRepresentatives or Approved Financing Sources) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the\nCompany, the Special Committee or their respective Representatives, directly or indirectly (a) amend or waive any provision of this Paragraph 4.1\n(including this clause (ix)) or (b) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix));\n(x) take any action that might require the Company or its Representatives to make a public announcement regarding any of the activities referred to\nin clauses (i)-(ix) of this Paragraph 4.1 (other than disclosures expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions; provided, however, that the foregoing shall not restrict your and your Representatives’ ability to (a) take any action, or permit any of your\nRepresentatives to take any action, in (and solely in) your capacity, or the capacity of any such Representative, as a director or officer of the\nCompany, (b) exercise any of your options to purchase common stock of the Company, (c) acquire shares of common stock of the Company or other\nsecurities of the Company by way of distributions of such securities in connection with deferred director compensation, (d) as long as you have\ncomplied and continue to comply with the second sentence of Paragraph 4.3 (which shall not be limited by this clause (d)), submit to the Special\nCommittee one or more confidential proposals regarding a Transaction or (e) have discussions with and among your Representatives with respect to\na proposal for a Transaction, including, to the extent permitted by Paragraph 4.3, to form a group that is a Permitted Group. For the avoidance of\ndoubt, nothing in this letter agreement shall restrict your or your affiliates’ ability to (1) sell or transfer (in whole or in part) or vote any securities of\nthe Company in your sole and absolute discretion or (2) amend your Schedule 13D as legally required (it being understood, however, that this clause\n(2) shall not be construed to permit you to take actions otherwise prohibited by this letter agreement). This letter agreement shall constitute a\n“standstill agreement” for purposes of the definition of “Acquiring Person” as defined in the Rights Agreement, dated as of January 12, 2011, by and\nbetween the Company and Continental Stock Transfer & Trust Company, as Rights Agent.\n4.2 Prohibition on Voting Restrictions. During the Restricted Period, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources and third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up\nor other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the Company or other person\nthat has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be expected to limit, restrict,\nrestrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities of the Company\nbeneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of such voting\nsecurities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with any transaction\ninvolving the Company.\n4.3 Group Formation; Permitted Groups. You acknowledge that you have filed a Schedule 13D with the Securities and Exchange Commission\nin which you disclaim, as of the date of such Schedule 13D, the formation of a group with Oaktree Capital Management, L.P. and\n7\nits funds and accounts under management, Ares Management LLC and its funds under management, and Thomas Boone Pickens, Jr. and beneficial\nownership of shares of common stock of the Company of such persons. You shall not, without the prior written consent of the Special Committee,\njoin or form a group with any person other than one or more Approved Financing Sources. Any group permitted to be formed pursuant to the\nimmediately preceding sentence or with the prior written consent of the Special Committee shall be referred to as a “Permitted Group.” You and the\nCompany each acknowledge that under certain circumstances, the joining or formation of a group by you and other shareholders of the Company\nmay trigger a default or an event of default or other material adverse effect under that certain Credit Agreement (the “Credit Agreement”), dated as\nof April 30, 2010, among the Company, certain subsidiaries of the Company, as guarantors, the lenders party thereto and JPMorgan Chase Bank,\nN.A., as administrative agent. The parties hereto acknowledge that the Company intends to seek to promptly obtain an effective waiver (a “Waiver”)\nunder the Credit Agreement that permits you (together with other shareholders of the Company) to join or form a group without causing a default or\nan event of default or any other material adverse effect under the Credit Agreement. Further, you and the Company each agree to consult with each\nother and keep each other reasonably informed with respect to the pursuit of such Waiver. Notwithstanding the foregoing, the Special Committee\nshall retain the sole right to enter into such Waiver on behalf of the Company.\n4.4 Termination of Standstill and Related Provisions. Notwithstanding the foregoing, if (i) the Company enters into a definitive agreement with\nany person other than you, any of your affiliates or any other person who is a participant in a Permitted Group of which you are also a participant\nthat provides for an Acquisition Transaction that is approved, and recommended to the Company’s shareholders, by the Special Committee, and\n(ii) thereafter you make a Superior Proposal, the effectiveness of Paragraphs 4.1 and 4.2 and the second sentence of Paragraph 4.3 shall terminate\nand the provisions of those paragraphs and sentence shall have no further force and effect.\n5. Financing Sources and Other Interested Persons.\n5.1 Approved Financing Sources. Except for your Representatives, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources) not to, provide any Evaluation Material to any person except an Approved Financing Source. “Approved Financing\nSource” shall mean (i) any person listed on Annex B hereto, (ii) any person that (a) is an individual or a bona fide private equity firm or other similar\ninstitutional investor, (b) is not a direct or indirect beneficial owner of more than one percent (1%) of the equity securities of the Company or any of\nits subsidiaries or joint ventures, (c) is reasonably expected to provide financing for a potential Transaction in an amount that is less than $50 million\nand (d) the Special Committee does not have any reasonable, good faith reason to object to serving as an Approved Financing Source and (iii) any\nother person expressly approved by the Special Committee as an Approved Financing Source (such consent not to be unreasonably withheld);\nprovided in each case that a person shall be an Approved Financing Source only if such person, the Company and the Special Committee shall have\nentered into a confidentiality agreement. The Company and the Special Committee shall enter into a confidentiality agreement with such potential\nApproved Financing Source in the form set forth on Annex C unless (1) the potential Approved Financing Source desires or insists upon material\nchanges thereto and/or (2) the\n8\nSpecial Committee concludes in good faith that such form of confidentiality agreement is not adequate or appropriate for such purposes as a result of\nany change, event or circumstance occurring or existing after the date hereof, in which case the Special Committee, on behalf of itself and the\nCompany, shall negotiate in good faith in an attempt to reach agreement on terms thereof acceptable to the parties. If the parties propose to enter into\na confidentiality agreement in the form set forth on Annex C, then promptly following your request, or in the case of a confidentiality agreement\nnegotiated among the parties pursuant to the previous sentence, then promptly following agreement between the parties on the terms thereof, the\nCompany and the Special Committee agree to execute such confidentiality agreement; provided that in no event shall the Company or the Special\nCommittee be under any obligation to execute any confidentiality agreement with any potential Approved Financing Source if the sum of the total\naggregate number of shares of capital stock of the Company owned (beneficially or of record) by such potential Approved Financing Source, you,\nyour Approved Financing Sources and any or all members of any group of which you are a member equals or exceeds 29.9% of the outstanding\nshares of capital stock of the Company unless and until the Waiver has been received by the Company and is effective.\n5.2 Financing Arrangements. You agree that without the prior written consent of the Special Committee, you shall not, and you shall cause\nyour Representatives (other than Approved Financing Sources) not to, directly or indirectly, enter into any agreements, arrangements or\nunderstandings, whether written or oral, with any person that provides or contemplates that such person shall, or reasonably could be expected to,\ndirectly or indirectly, provide equity or debt financing for, or otherwise serve as a principal party or investor in, any Transaction except for\nagreements, arrangements or understandings you may enter into in the future with Approved Financing Sources (but in any event subject to the other\nlimitations set forth in this letter agreement, including Paragraph 5.3). You represent and warrant to the Company and the Special Committee that\nneither you nor any of your Representatives (other than Approved Financing Sources) that are acting on your behalf or at your direction have entered\ninto any such agreement, arrangement or any understanding other than those that have been disclosed in writing to the Special Committee or publicly\ndisclosed as of the date hereof.\n5.3 Prohibition on Exclusive Arrangements. You shall not, and you shall cause your Representatives (other than (a) your Approved Financing\nSources and (b) third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up or other\nagreement, arrangement or understanding, whether written or oral, with any person that is intended or could otherwise reasonably be expected to\nlimit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to provide financing to any other person in\nconnection with any transaction involving the Company; provided, however, that nothing in this sentence shall prohibit you from limiting,\nrestricting, restraining or impairing any person that is providing equity financing to you from providing equity financing to any other person. You\nrepresent and warrant to the Company and the Special Committee that neither you nor any of your Representatives that are acting on your behalf or\nat your direction (other than Approved Financing Sources and third party advisors not taking action on your behalf or at your direction) have entered\ninto any such agreement, arrangement or any understanding as of the date hereof.\n9\n5.4 No Discouragement. You shall not, and you shall cause your Representatives (other than Approved Financing Sources and third party\nadvisors not taking action on your behalf or at your direction) not to, take any action to discourage any person from making any proposal with\nrespect to a Transaction. However, nothing in this letter agreement shall limit in any respect your rights as to the terms, conditions or the\ncontinuation or termination of your employment with the Company or any of its subsidiaries or joint ventures.\n6. Miscellaneous.\n6.1 Compliance with Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the\nfederal and state securities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities\nof such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities. You will, and will cause your Representatives (other than Approved Financing Sources and third\nparty advisors not taking action on your behalf or at your direction) to, comply with federal and state securities laws in connection with the receipt of\nEvaluation Material contemplated hereby.\n6.2 Fiduciary Responsibilities. Nothing contained in this letter agreement shall be deemed to limit or expand your rights or obligations in\ndischarging, or restrict your activities in furtherance of, your fiduciary responsibilities as a director of the Company for so long as you shall remain a\ndirector of the Company.\n6.3 Breach. You shall be responsible for any breach of this letter agreement by you or any of your Representatives (other than Approved\nFinancing Sources) of the terms specifically applicable to Representatives, and you agree, at your sole expense, to take all reasonable measures to\navoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of this letter agreement by any of your\nRepresentatives (other than Approved Financing Sources) of the terms specifically applicable to Representatives. The foregoing obligation shall not\nlimit the remedies available to the Company for any such breach of this letter agreement.\n6.4 Process. You agree that unless and until a final definitive written agreement providing for a Transaction has been executed and delivered by\nthe Company and you, none of the Company, the Special Committee or any of their respective Representatives will be under any legal obligation of\nany kind whatsoever with respect to such Transaction by virtue of this letter agreement. You further acknowledge and agree that the Special\nCommittee reserves the right to both reject any and all proposals made by you or your Representatives with regard to a Transaction and/or to\nterminate discussions and negotiations with you or any of your Representatives at any time for any reason or no reason. The Special Committee\nretains the right to determine what Information it will make available to you or any of your Representatives. You also understand and agree that this\nletter agreement does not limit the Company, the Special Committee or any of their respective Representatives from entering into negotiations and\ndiscussions with other parties for a possible transaction in lieu of the Transaction with you and entering into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives. You also understand and agree that this letter agreement does not limit the\n10\nCompany, the Special Committee or any of their respective Representatives from changing in any way the Company’s or the Special Committee’s\nprocess for considering the Transaction or any transaction in lieu of the Transaction without prior notice to you or any of your Representatives.\n6.5 Notices. All notices, claims, demands and other communications under this Agreement shall be in writing and shall be delivered\npersonally, telecopied or emailed with confirmation of receipt, or by next-day courier to you, the Company or the Special Committee, as applicable,\nat the addresses specified below (or at such other address as shall be specified by a person by like notice; provided that notices of a change of\naddress shall be effective only upon receipt thereof). Any such notice shall be effective upon receipt, if personally delivered, telecopied or emailed,\nor one day after delivery to a courier for next-day delivery.\nIf to you:\nDouglas H. Miller\n12377 Merit Dr., Suite 1700\nDallas, TX 75251\nFacsimile:\n(214) 378-5442\nE-mail:\ndmillerbreakaway@gmail.com\ndsablotny@excoresources.com\nWith a copy to:\nVinson & Elkins LLP\n2001 Ross Avenue, Suite 3700\nDallas, TX 75201\nAttention:\nJeffery A. Chapman\nJohn M. Grand\nFacsimile:\n(212) 999-7797\nE-mail:\njchapman@velaw.com\njgrand@velaw.com\nIf to the Company:\nEXCO Resources, Inc.\nc/o the Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention:\nThomas W. Christopher\nWilliam B. Sorabella\nFacsimile:\n(212) 446-4900\nE-mail:\nthomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\nIf to the Special Committee:\nThe Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention:\nThomas W. Christopher\nWilliam B. Sorabella\nFacsimile:\n(212) 446-4900\nE-mail:\nthomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\n11\n6.6 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company, the Special\nCommittee and you expressly so modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company or\nthe Special Committee in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n6.7 Severability. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any\nother provisions of this letter agreement. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.8 Entire Agreement. This letter agreement, together with the other instruments and agreements referenced herein, contains the entire\nagreement between the Company, the Special Committee and you concerning the subject matter hereof. This letter agreement and such instruments\nand agreements shall be in addition to, and shall not limit the effectiveness of any other previous agreement, whether written or oral, that may relate\nto the subject matter hereof, including, without limitation, any agreements entered into, or policies to which you are subject, as an officer of the\nCompany.\n6.9 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives (other than Approved Financing Sources) and, in addition to all other remedies that the Company, the Special\nCommittee or any of their respective Representatives may have at law or in equity, the Company, the Special Committee and any of their respective\nRepresentatives shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such\nbreach and you hereby waive any requirement for the securing or posting of any bond in connection with such remedy.\n6.10 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Texas\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the federal and state courts sitting in Dallas County, Texas (collectively,\nthe “Texas Courts”) for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence any action, suit\nor proceeding related thereto except in a Texas Court. Each of the parties hereto further agrees that service of any process, summons, notice or\ndocument by registered mail to its address set forth above shall be effective service of process for any action, suit or proceeding brought against it in\nany Texas Court.\n6.11 Assignment; Binding Effect. Without the prior consent of the other party, neither party may assign its rights or obligations (in the case of\nthe Company, other than by operation of\n12\nlaw) under this letter agreement to any person. This letter agreement shall be binding upon you and your respective successors and permitted assigns\nand shall inure to the benefit of, and be enforceable by, the Company and its respective successors and permitted assigns.\n6.12 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n6.13 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.14 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile or electronic transmission copies, each of which shall be deemed to be an original.\n6.15 Term. Except as otherwise specifically provided herein, this letter agreement shall terminate and be of no further force and effect as of the\ndate that is fifteen (15) months following the date hereof; provided, however, that such termination shall not relieve you from your responsibilities in\nrespect of any breach of this letter agreement prior to such termination.\n(Signature page follows)\n13\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nSPECIAL COMMITTEE OF THE BOARD OF\nDIRECTORS OF EXCO RESOURCES, INC.\nBy: /s/ Vincent Cebula\nName: Vincent Cebula\nTitle: Chairman of the Special Committee\nEXCO RESOURCES, INC.\nBy: /s/ William L. Boeing\nName: William L. Boeing\nTitle: Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nDOUGLAS H. MILLER\nBy: /s/ Douglas H. Miller\nName: Douglas H. Miller	EX-99.2 3 dex992.htm CONFIDENTIALITY AGREEMENT\nExhibit 99.2\nCONFIDENTIAL\nEXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nJanuary 12, 2011\nDouglas H. Miller\nc/o EXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nDear Mr. Miller:\nIn connection with the consideration of a possible negotiated buyout transaction (the “Transaction”) involving you and EXCO Resources, Inc.,\na Texas corporation (the “Company,” which term shall, for purposes of this letter agreement, include its subsidiaries), the Special Committee of the\nBoard of Directors of the Company formed on November 3, 2010 (the “Special Committee™) is prepared to make available to you, on behalf of the\nCompany, certain information concerning the Company, upon the terms and subject to the conditions set forth in this letter agreement. As a condition\nto such information being furnished to you, you agree to comply with all the terms of this letter agreement.\n1. Definitions.\n1.1 Evaluation Material. The term “Evaluation Material” shall mean all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries or\njoint ventures, or any of the businesses, properties, assets, operations, products, services, liabilities, condition (financial or otherwise), employees,\nprospects and/or results of operations of any of the foregoing (whether prepared by the Company, any of its Representatives (as defined below) or\notherwise) that previously has been or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined\nbelow) (collectively, “Information”), as well as all notes, analyses, compilations, summaries, extracts, studies, interpretations or other materials\nprepared by you or any of your Representatives, but only to the extent that the foregoing contain, reflect or are based upon any Information\n(“Derivative Information”). The term “Evaluation Material” shall also be deemed to include, without limitation, the status or terms and conditions of\nany discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term “Evaluation Material” does not\ninclude information or any portion thereof that (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any\nof your Representatives in violation of this letter agreement or any other obligation of\n1\nconfidentiality to the Company), (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause\n(ii) shall not be applicable), or (iii) becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives (other than in your capacity as an officer or director of the Company, in which case this clause (iii) shall not be applicable);\nprovided, that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement\nor otherwise) to the Company or any of its Representatives (including the Special Committee).\n1.2 Other Definitions. As used in this letter agreement:\n(i) The term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Exchange Act;\n(ii) The term “Acquisition Transaction” shall mean (a) any merger, consolidation or other business combination, or liquidation, reorganization,\nor similar transaction, that results in any person or group directly or indirectly owning 50% or more of the voting securities of the Company, (b) the\nacquisition or sale (through tender or exchange offer, issuance or otherwise) of 50% or more of the voting securities of the Company, (c) the sale,\nlease or other actual or effective disposition of 50% or more of the assets of the Company based on the least of the book value or fair market value of\nsuch assets or the percentage of revenues or net income generated by such assets during the 12 months ending on December 31, 2010, or (d) any\ncombination of the foregoing, whether as a single transaction or a series of transactions;\n(iii) The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules, regulations and schedules\npromulgated thereunder;\n(iv) The term “Fully Financed” shall mean, when used with respect to an offer, having financing for such offer (a) in an amount sufficient to\npay the purchase price and any transaction fees in connection with, and to refinance any debt that is reasonably expected to become payable upon\nconsummation of, an Acquisition Transaction that constitutes a Superior Proposal and (b) that is evidenced by executed commitment papers and/or\nexecuted definitive financing documentation from one or more bona fide financing sources with aggregate sufficient capital to provide such\nfinancing, which commitment papers and/or documentation contain terms and conditions customary for transactions of this type and size of\ntransaction.\n(v) The term “group” shall have the meaning given to that term (or as that term is used) in Section 13(d)(3) of the Exchange Act;\n(vi) The term “person” shall be broadly interpreted to include any individual, corporation, partnership, limited liability company, group or\nother entity;\n \n(vii) The term “Representatives” shall mean, with respect to any person, such person’s affiliates (including, without limitation, subsidiaries)\nand joint ventures and any of the foregoing persons’ respective directors, officers, employees, agents, representatives and advisors (including,\nwithout limitation, financial advisors, bankers, consultants, agents, counsel and\n2\naccountants) and Approved Financing Sources; provided, however, that, when used with respect to the Company, the Company’s Representatives\nshall not include you or any other director of the Company who is also personnel of any Approved Financing Source, other than when acting in your\nor their capacity as a director or officer of the Company; and\n(viii) The term “Superior Proposal” shall mean, when used with respect to a pending Acquisition Transaction, any Fully Financed, bona fide\nwritten offer to acquire all of the shares of common stock of the Company not already owned by the offeror (or by any other persons acting in\nconcert with the offeror) (a) for cash at a price per share at least $1.00 higher than the price per share being offered in such pending Acquisition\nTransaction, (b) pursuant to a transaction that, taking into account all relevant factors, including without limitation, the source of financing,\nregulatory concerns and other factors, is reasonably likely to be consummated, (c) that is otherwise on customary terms and conditions and (d) that\ncan immediately be accepted by the Special Committee (subject to any legal or other requirements binding upon, or imposed by, the Special\nCommittee, such as the need to evaluate and approve the offer under applicable law). For purposes of determining whether an offer constitutes a\nSuperior Proposal, in the event the consideration being offered in such pending Acquisition Transaction includes any publicly traded equity\nsecurities, those equity securities shall be ascribed a value equal to the volume weighted average of the closing prices of such security on the primary\nsecurities exchange on which such security is traded for the five (5) consecutive trading days ending on and including the second trading day prior to\nthe date on which you make your offer to the Special Committee.\n1.3 Special Committee Authority. Unless otherwise expressly agreed to in writing by the Special Committee, any and all actions contemplated\nhereby to be taken by the Company shall be taken by the Special Committee on behalf of the Company; provided, however, that any action\ncontemplated hereby to be taken by the Special Committee shall be taken by the Company from and after the dissolution of the Special Committee.\n \n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives (other than Approved\nFinancing Sources), to: (i) use the Evaluation Material solely for the purpose of evaluating, negotiating, financing, consummating, and implementing\na possible Transaction and your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in accordance with\nthis letter agreement, and (iii) without the prior written consent of the Special Committee, not disclose any of the Evaluation Material to any person;\nprovided, however, that you may disclose any of the Evaluation Material to (a) your Representatives (including Approved Financing Sources) solely\nfor purposes of evaluating, negotiating, financing, consummating and/or implementing a possible Transaction and your possible participation in the\nTransaction who agree to be bound by the terms hereof to the same extent as if they were parties hereto; provided, however, that, without the Special\nCommittee’s prior consent, you shall not, and you shall cause your Representatives (other than Approved Financing Sources) not to, disclose to any\nof your Approved Financing Sources any Evaluation Material (other than Derivative Information that contains, reflects and is based upon only\nInformation that has already been provided to the Special Committee or its financial advisors, and no other Information) unless such Evaluation\nMaterial has already been provided to the Special Committee or its financial advisors, and (b) as otherwise permitted by Paragraph 2.2 hereof.\n \n \n3\n2.2 Compulsory Disclosure. In the event that you or any of your Representatives (other than Approved Financing Sources) receives a request\n(by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by\nlaw, regulation, or regulatory authority or order or any rule of any stock exchange to which you or any of your Representatives is subject (“Law”) to\ndisclose, any of the Evaluation Material, you or such Representative (other than Approved Financing Sources) shall, unless prohibited by Law,\n(i) provide the Company and the Special Committee with prompt written notice of such request or requirement, along with, to the extent applicable,\na copy of the request and the proposed disclosure, the circumstances surrounding such request or requirement, the reason that such disclosure is\nrequired and the time and place such disclosure is expected to be made, in each case with sufficient specificity so that the Company and/or the\nSpecial Committee may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement,\nand (ii) if requested by the Company and/or the Special Committee, assist the Company and/or the Special Committee (in each case, at the\nCompany’s sole expense) in seeking a protective order or other appropriate remedy in response to such request or requirement. Without limiting the\ngenerality of the foregoing, you shall not, and shall cause your Representatives (other than Approved Financing Sources) not to, oppose any action\nby the Company and/or the Special Committee to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1, if, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Company and the Special Committee, you are, or any of your Representatives\nis, nonetheless, on the advice of counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises is required by Law to be disclosed,\nprovided that you, or, if applicable, such Representative, exercise commercially reasonable efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder. Notwithstanding the foregoing,\nyou may make filings (and disclosures required therein) under Section 13(d) of the Exchange Act that are on the advice of counsel required to be\nmade by you or your Representatives without complying with this Paragraph 2.2; provided, that you have provided notice of your intent to make\nsuch filing (along with a reasonable description of the material items that will be disclosed in such filing) to the Special Committee as promptly as\npractical and in any event at least eight (8) hours prior to the filing thereof.\n2.3 Information Request Procedures. You further agree that, without the prior written consent of the Special Committee but subject to\nParagraph 6.2 hereof, all communications from you or your Representatives to the Company regarding any Transaction, including, without\nlimitation, requests for Information, will be submitted only to the Representatives of the Special Committee listed on Annex A hereto or to such\nother person or persons as the Special Committee may direct in writing and, unless expressly directed to the contrary by the Special Committee, not\nto the Company or any of its Representatives. Subject to Paragraph 6.2 hereof and other than with respect to Approved Financing Sources, you agree\nthat you will not, and you will cause\nyour Representatives (other than Approved Financing Sources) not to, engage in any discussions with the Company or any of its suppliers, vendors,\nservice providers, joint venture partners, consultants or lenders regarding any Transaction without the prior consent of the Special Committee.\nNotwithstanding the foregoing and subject to the proviso in Paragraph 2.1(iii)(a), you shall not be prohibited from engaging in any communications\nwith any director of the Company who is also personnel of any Approved Financing Source.\n2.4 Return and Destruction of Evaluation Material. At any time upon the request of the Special Committee for any reason, you will promptly\n(i) deliver to the Special Committee all Evaluation Material (other than Derivative Information) in the possession of you or any of your\nRepresentatives (other than Approved Financing Sources) and (ii) at your election, deliver to the Special Committee or destroy all other Evaluation\nMaterial constituting Derivative Information in your or their possession, in each case without keeping any copies, in whole or part, in any medium\nwhatsoever, thereof. In the event of such a request, you shall deliver to the Special Committee a certificate stating that you have complied with all of\nthe requirements of this Paragraph 2.4. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions\nregarding the Transaction, you and your Representatives may retain Evaluation Material as required by Law or internal document retention policies\nsolely for such purposes (and not for the purposes provided for in Paragraph 2.1); provided, that you and your Representatives will continue to be\nbound by your obligations of confidentiality (including, without limitation, with respect to any Evaluation Material destroyed or not returned\npursuant to this Paragraph 2.4) and other obligations hereunder.\n2.5 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Special Committee or any of their respective\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree\nthat none of the Company, the Special Committee or any of their respective Representatives shall have any liability to you or any of your\nRepresentatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you or any of\nyour Representatives derive from the Evaluation Material. Only those representations or warranties that are made in a final definitive agreement\nproviding for the Transaction, when, as and if executed and delivered by the parties, and subject to such limitations and restrictions as may be\nspecified therein, will have any legal effect.\n2.6 Privileges. The Company does not intend to waive, or to cause any of its Representatives to waive, the attorney-client, attorney work\nproduct or other applicable privilege of the Company or any of its subsidiaries or joint ventures (“Privilege”) by providing any Evaluation Material\nsubject to a Privilege, and any production by the Company or any of its Representatives of such Evaluation Material shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company or any of its Representatives of Evaluation\nMaterials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request by the\nCompany or any of its Representatives, you will, and you will cause your Representatives (other than Approved Financing Sources) to, immediately\nreturn and/or destroy such inadvertently produced Evaluation Materials.\n \n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n3. Non-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one (1) year from the date hereof, you\nwill not, and will cause your Representatives (other than your Approved Financing Sources and third party advisors not taking action on your behalf\nor at your direction) not to, directly or indirectly, without obtaining the prior written consent of the Company and the Special Committee, solicit for\nemployment or employ any of the officers or senior employees of the Company or any of its subsidiaries or joint ventures, other than officers or\nemployees who have ceased to be such prior to your solicitation or employment of them; provided, however, that the foregoing shall not restrict your\nability to conduct generalized searches for officers or employees by use of advertisements in periodicals of general circulation or general\nsolicitations through recruiting agencies, in each case not directed at such officers or employees.\n4, Standstill and Related Provisions.\n4.1 Standstill Provisions. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of fifteen\n(15) months from the date hereof (the “Restricted Period”), unless expressly permitted or authorized hereby or in writing by the Special Committee\nto do so, you will not, and you will cause your Representatives (other than Approved Financing Sources and third party advisors not taking action on\nyour behalf or at your direction) not to, directly or indirectly, acting alone or as part of a group: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any (a) voting or other equity securities or direct or indirect rights to acquire any voting or other\nequity securities of the Company or any of its subsidiaries or joint ventures, or (b) any other securities, rights or interests, including without\nlimitation, options, swaps, derivatives or convertible or other similar instruments, whether real or synthetic, which give you the right to vote or to\ndirect the voting of any voting or equity securities of the Company or any of its subsidiaries or joint ventures; (ii) enter into or agree, offer, propose\nor seek to enter into, or otherwise be involved in or part of, directly or indirectly, any Acquisition Transaction; (iii) make, or in any way participate\nin, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or\nseek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company in connection with or related in\nany way to an Acquisition Transaction; (iv) form, join or in any way participate in a group with respect to any voting or other equity securities of the\nCompany or any of its subsidiaries or joint ventures (other than a Permitted Group (as defined below)); (v) seek or propose, alone or in concert with\nothers, to influence or control the management or policies of the Company or any of its subsidiaries or joint ventures in connection with or related in\nany way to an Acquisition Transaction; (vi) directly or indirectly enter into any discussions, negotiations, arrangements or understandings with any\nother person (other than Approved Financing Sources to the extent permitted hereby) with respect to any of the foregoing activities or propose any of\nsuch activities\nto any other person (other than Approved Financing Sources to the extent permitted hereby); (vii) advise, assist, encourage, or act as a financing\nsource for or otherwise invest in any other person who may serve as a financing source in connection with any of the foregoing activities (other than\nApproved Financing Sources); (viii) disclose (except to the extent permitted hereby, to the Company, the Special Committee or their respective\nRepresentatives or Approved Financing Sources) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the\nCompany, the Special Committee or their respective Representatives, directly or indirectly (a) amend or waive any provision of this Paragraph 4.1\n(including this clause (ix)) or (b) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix));\n(%) take any action that might require the Company or its Representatives to make a public announcement regarding any of the activities referred to\nin clauses (i)-(ix) of this Paragraph 4.1 (other than disclosures expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions; provided, however, that the foregoing shall not restrict your and your Representatives’ ability to (a) take any action, or permit any of your\nRepresentatives to take any action, in (and solely in) your capacity, or the capacity of any such Representative, as a director or officer of the\nCompany, (b) exercise any of your options to purchase common stock of the Company, (c) acquire shares of common stock of the Company or other\nsecurities of the Company by way of distributions of such securities in connection with deferred director compensation, (d) as long as you have\ncomplied and continue to comply with the second sentence of Paragraph 4.3 (which shall not be limited by this clause (d)), submit to the Special\nCommittee one or more confidential proposals regarding a Transaction or (e) have discussions with and among your Representatives with respect to\na proposal for a Transaction, including, to the extent permitted by Paragraph 4.3, to form a group that is a Permitted Group. For the avoidance of\ndoubt, nothing in this letter agreement shall restrict your or your affiliates’ ability to (1) sell or transfer (in whole or in part) or vote any securities of\nthe Company in your sole and absolute discretion or (2) amend your Schedule 13D as legally required (it being understood, however, that this clause\n(2) shall not be construed to permit you to take actions otherwise prohibited by this letter agreement). This letter agreement shall constitute a\n“standstill agreement” for purposes of the definition of “Acquiring Person” as defined in the Rights Agreement, dated as of January 12, 2011, by and\nbetween the Company and Continental Stock Transfer & Trust Company, as Rights Agent.\n4.2 Prohibition on Voting Restrictions. During the Restricted Period, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources and third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up\nor other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the Company or other person\nthat has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be expected to limit, restrict,\nrestrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities of the Company\nbeneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of such voting\nsecurities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with any transaction\ninvolving the Company.\n4.3 Group Formation; Permitted Groups. You acknowledge that you have filed a Schedule 13D with the Securities and Exchange Commission\nin which you disclaim, as of the date of such Schedule 13D, the formation of a group with Oaktree Capital Management, L.P. and\n7\nits funds and accounts under management, Ares Management LL.C and its funds under management, and Thomas Boone Pickens, Jr. and beneficial\nownership of shares of common stock of the Company of such persons. You shall not, without the prior written consent of the Special Committee,\njoin or form a group with any person other than one or more Approved Financing Sources. Any group permitted to be formed pursuant to the\nimmediately preceding sentence or with the prior written consent of the Special Committee shall be referred to as a “Permitted Group.” You and the\nCompany each acknowledge that under certain circumstances, the joining or formation of a group by you and other shareholders of the Company\nmay trigger a default or an event of default or other material adverse effect under that certain Credit Agreement (the “Credit Agreement”), dated as\nof April 30, 2010, among the Company, certain subsidiaries of the Company, as guarantors, the lenders party thereto and JPMorgan Chase Bank,\nN.A., as administrative agent. The parties hereto acknowledge that the Company intends to seek to promptly obtain an effective waiver (a “Waiver”)\nunder the Credit Agreement that permits you (together with other shareholders of the Company) to join or form a group without causing a default or\nan event of default or any other material adverse effect under the Credit Agreement. Further, you and the Company each agree to consult with each\nother and keep each other reasonably informed with respect to the pursuit of such Waiver. Notwithstanding the foregoing, the Special Committee\nshall retain the sole right to enter into such Waiver on behalf of the Company.\n \n4.4 Termination of Standstill and Related Provisions. Notwithstanding the foregoing, if (i) the Company enters into a definitive agreement with\nany person other than you, any of your affiliates or any other person who is a participant in a Permitted Group of which you are also a participant\nthat provides for an Acquisition Transaction that is approved, and recommended to the Company’s shareholders, by the Special Committee, and\n(ii) thereafter you make a Superior Proposal, the effectiveness of Paragraphs 4.1 and 4.2 and the second sentence of Paragraph 4.3 shall terminate\nand the provisions of those paragraphs and sentence shall have no further force and effect.\n5. Financing Sources and Other Interested Persons.\n \n5.1 Approved Financing Sources. Except for your Representatives, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources) not to, provide any Evaluation Material to any person except an Approved Financing Source. “Approved Financing\nSource” shall mean (i) any person listed on Annex B hereto, (ii) any person that (a) is an individual or a bona fide private equity firm or other similar\ninstitutional investor, (b) is not a direct or indirect beneficial owner of more than one percent (1%) of the equity securities of the Company or any of\nits subsidiaries or joint ventures, (c) is reasonably expected to provide financing for a potential Transaction in an amount that is less than $50 million\nand (d) the Special Committee does not have any reasonable, good faith reason to object to serving as an Approved Financing Source and (iii) any\nother person expressly approved by the Special Committee as an Approved Financing Source (such consent not to be unreasonably withheld);\nprovided in each case that a person shall be an Approved Financing Source only if such person, the Company and the Special Committee shall have\nentered into a confidentiality agreement. The Company and the Special Committee shall enter into a confidentiality agreement with such potential\nApproved Financing Source in the form set forth on Annex C unless (1) the potential Approved Financing Source desires or insists upon material\nchanges thereto and/or (2) the\nSpecial Committee concludes in good faith that such form of confidentiality agreement is not adequate or appropriate for such purposes as a result of\nany change, event or circumstance occurring or existing after the date hereof, in which case the Special Committee, on behalf of itself and the\nCompany, shall negotiate in good faith in an attempt to reach agreement on terms thereof acceptable to the parties. If the parties propose to enter into\na confidentiality agreement in the form set forth on Annex C, then promptly following your request, or in the case of a confidentiality agreement\nnegotiated among the parties pursuant to the previous sentence, then promptly following agreement between the parties on the terms thereof, the\nCompany and the Special Committee agree to execute such confidentiality agreement; provided that in no event shall the Company or the Special\nCommittee be under any obligation to execute any confidentiality agreement with any potential Approved Financing Source if the sum of the total\naggregate number of shares of capital stock of the Company owned (beneficially or of record) by such potential Approved Financing Source, you,\nyour Approved Financing Sources and any or all members of any group of which you are a member equals or exceeds 29.9% of the outstanding\nshares of capital stock of the Company unless and until the Waiver has been received by the Company and is effective.\n5.2 Financing Arrangements. You agree that without the prior written consent of the Special Committee, you shall not, and you shall cause\nyour Representatives (other than Approved Financing Sources) not to, directly or indirectly, enter into any agreements, arrangements or\nunderstandings, whether written or oral, with any person that provides or contemplates that such person shall, or reasonably could be expected to,\ndirectly or indirectly, provide equity or debt financing for, or otherwise serve as a principal party or investor in, any Transaction except for\nagreements, arrangements or understandings you may enter into in the future with Approved Financing Sources (but in any event subject to the other\nlimitations set forth in this letter agreement, including Paragraph 5.3). You represent and warrant to the Company and the Special Committee that\nneither you nor any of your Representatives (other than Approved Financing Sources) that are acting on your behalf or at your direction have entered\ninto any such agreement, arrangement or any understanding other than those that have been disclosed in writing to the Special Committee or publicly\ndisclosed as of the date hereof.\n \n5.3 Prohibition on Exclusive Arrangements. You shall not, and you shall cause your Representatives (other than (a) your Approved Financing\nSources and (b) third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up or other\nagreement, arrangement or understanding, whether written or oral, with any person that is intended or could otherwise reasonably be expected to\nlimit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to provide financing to any other person in\nconnection with any transaction involving the Company; provided, however, that nothing in this sentence shall prohibit you from limiting,\nrestricting, restraining or impairing any person that is providing equity financing to you from providing equity financing to any other person. You\nrepresent and warrant to the Company and the Special Committee that neither you nor any of your Representatives that are acting on your behalf or\nat your direction (other than Approved Financing Sources and third party advisors not taking action on your behalf or at your direction) have entered\ninto any such agreement, arrangement or any understanding as of the date hereof.\n \n9\n5.4 No Discouragement. You shall not, and you shall cause your Representatives (other than Approved Financing Sources and third party\nadvisors not taking action on your behalf or at your direction) not to, take any action to discourage any person from making any proposal with\nrespect to a Transaction. However, nothing in this letter agreement shall limit in any respect your rights as to the terms, conditions or the\ncontinuation or termination of your employment with the Company or any of its subsidiaries or joint ventures.\n6. Miscellaneous.\n6.1 Compliance with Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the\nfederal and state securities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities\nof such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities. You will, and will cause your Representatives (other than Approved Financing Sources and third\nparty advisors not taking action on your behalf or at your direction) to, comply with federal and state securities laws in connection with the receipt of\nEvaluation Material contemplated hereby.\n6.2 Fiduciary Responsibilities. Nothing contained in this letter agreement shall be deemed to limit or expand your rights or obligations in\ndischarging, or restrict your activities in furtherance of, your fiduciary responsibilities as a director of the Company for so long as you shall remain a\ndirector of the Company.\n6.3 Breach. You shall be responsible for any breach of this letter agreement by you or any of your Representatives (other than Approved\nFinancing Sources) of the terms specifically applicable to Representatives, and you agree, at your sole expense, to take all reasonable measures to\navoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of this letter agreement by any of your\nRepresentatives (other than Approved Financing Sources) of the terms specifically applicable to Representatives. The foregoing obligation shall not\nlimit the remedies available to the Company for any such breach of this letter agreement.\n6.4 Process. You agree that unless and until a final definitive written agreement providing for a Transaction has been executed and delivered by\nthe Company and you, none of the Company, the Special Committee or any of their respective Representatives will be under any legal obligation of\nany kind whatsoever with respect to such Transaction by virtue of this letter agreement. You further acknowledge and agree that the Special\nCommittee reserves the right to both reject any and all proposals made by you or your Representatives with regard to a Transaction and/or to\nterminate discussions and negotiations with you or any of your Representatives at any time for any reason or no reason. The Special Committee\nretains the right to determine what Information it will make available to you or any of your Representatives. You also understand and agree that this\nletter agreement does not limit the Company, the Special Committee or any of their respective Representatives from entering into negotiations and\ndiscussions with other parties for a possible transaction in lieu of the Transaction with you and entering into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives. You also understand and agree that this letter agreement does not limit the\n10\nCompany, the Special Committee or any of their respective Representatives from changing in any way the Company’s or the Special Committee’s\nprocess for considering the Transaction or any transaction in lieu of the Transaction without prior notice to you or any of your Representatives.\n6.5 Notices. All notices, claims, demands and other communications under this Agreement shall be in writing and shall be delivered\npersonally, telecopied or emailed with confirmation of receipt, or by next-day courier to you, the Company or the Special Committee, as applicable,\nat the addresses specified below (or at such other address as shall be specified by a person by like notice; provided that notices of a change of\naddress shall be effective only upon receipt thereof). Any such notice shall be effective upon receipt, if personally delivered, telecopied or emailed,\nor one day after delivery to a courier for next-day delivery.\nIf to you: Douglas H. Miller\n12377 Merit Dr., Suite 1700\nDallas, TX 75251\nFacsimile: (214) 378-5442\nE-mail: dmillerbreakaway@gmail.com\ndsablotny@excoresources.com\nWith a copy to: Vinson & Elkins LLP\n2001 Ross Avenue, Suite 3700\nDallas, TX 75201\nAttention: Jeffery A. Chapman\nJohn M. Grand\nFacsimile: (212) 999-7797\nE-mail: jchapman@velaw.com\njgrand@velaw.com\nIf to the Company: EXCO Resources, Inc.\nc/o the Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention: Thomas W. Christopher\nWilliam B. Sorabella\nFacsimile: (212) 446-4900\nE-mail: thomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\nIf to the Special Committee: The Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention: Thomas W. Christopher\nWilliam B. Sorabella\nFacsimile: (212) 446-4900\nE-mail: thomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\n11\n6.6 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company, the Special\nCommittee and you expressly so modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company or\nthe Special Committee in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n6.7 Severability. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any\nother provisions of this letter agreement. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.8 Entire Agreement. This letter agreement, together with the other instruments and agreements referenced herein, contains the entire\nagreement between the Company, the Special Committee and you concerning the subject matter hereof. This letter agreement and such instruments\nand agreements shall be in addition to, and shall not limit the effectiveness of any other previous agreement, whether written or oral, that may relate\nto the subject matter hereof, including, without limitation, any agreements entered into, or policies to which you are subject, as an officer of the\nCompany.\n6.9 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives (other than Approved Financing Sources) and, in addition to all other remedies that the Company, the Special\nCommittee or any of their respective Representatives may have at law or in equity, the Company, the Special Committee and any of their respective\nRepresentatives shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such\nbreach and you hereby waive any requirement for the securing or posting of any bond in connection with such remedy.\n6.10 Governing Law;_Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Texas\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the federal and state courts sitting in Dallas County, Texas (collectively,\nthe “Texas Courts”) for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence any action, suit\nor proceeding related thereto except in a Texas Court. Each of the parties hereto further agrees that service of any process, summons, notice or\ndocument by registered mail to its address set forth above shall be effective service of process for any action, suit or proceeding brought against it in\nany Texas Court.\n6.11 Assignment; Binding Effect. Without the prior consent of the other party, neither party may assign its rights or obligations (in the case of\nthe Company, other than by operation of\n12\nlaw) under this letter agreement to any person. This letter agreement shall be binding upon you and your respective successors and permitted assigns\nand shall inure to the benefit of, and be enforceable by, the Company and its respective successors and permitted assigns.\n6.12 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n6.13 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.14 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile or electronic transmission copies, each of which shall be deemed to be an original.\n6.15 Term. Except as otherwise specifically provided herein, this letter agreement shall terminate and be of no further force and effect as of the\ndate that is fifteen (15) months following the date hereof; provided, however, that such termination shall not relieve you from your responsibilities in\nrespect of any breach of this letter agreement prior to such termination.\n(Signature page follows)\n13\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company. Accepted and agreed as of the date first written above:\nDOUGLAS H. MILLER\nBy: /s/ Douglas H. Miller\nName: Douglas H. Miller\nSPECIAL COMMITTEE OF THE BOARD OF\nDIRECTORS OF EXCO RESOURCES, INC.\nBy:  /s/ Vincent Cebula\nName: Vincent Cebula\nTitle: Chairman of the Special Committee\nEXCO RESOURCES, INC.\nBy:  /s/ William L. Boeing\nName: William L. Boeing\nTitle: Vice President and General Counsel	EX-99.2 3 dex992.htm CONFIDENTIALITY AGREEMENT\nExhibit 99.2\nCONFIDENTIAL\nEXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nJanuary 12, 2011\nDouglas H. Miller\nc/o EXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nDear Mr. Miller:\nIn connection with the consideration of a possible negotiated buyout transaction (the "Transaction") involving you and EXCO Resources, Inc.,\na Texas corporation (the "Company," which term shall, for purposes of this letter agreement, include its subsidiaries), the Special Committee of the\nBoard of Directors of the Company formed on November 3, 2010 (the "Special Committee") is prepared to make available to you, on behalf of the\nCompany, certain information concerning the Company, upon the terms and subject to the conditions set forth in this letter agreement. As a condition\nto such information being furnished to you, you agree to comply with all the terms of this letter agreement.\n1. Definitions.\n1.1\nEvaluation Material. The term "Evaluation Material" shall mean all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries\nor\njoint ventures, or any of the businesses, properties, assets, operations, products, services, liabilities, condition (financial or otherwise), employees,\nprospects and/or results of operations of any of the foregoing (whether prepared by the Company, any of its Representatives (as defined below) or\notherwise) that previously has been or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined\nbelow) (collectively, "Information"), as well as all notes, analyses, compilations, summaries, extracts, studies, interpretations or other materials\nprepared by you or any of your Representatives, but only to the extent that the foregoing contain, reflect or are based upon any Information\n("Derivative Information"). The term "Evaluation Material" shall also be deemed to include, without limitation, the status or terms and conditions of\nany discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term "Evaluation Material" does not\ninclude information or any portion thereof that (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any\nof your Representatives in violation of this letter agreement or any other obligation of\n1\nconfidentiality to the Company), (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause\n(ii) shall not be applicable), or (iii) becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives (other than in your capacity as an officer or director of the Company, in which case this clause (iii) shall not be applicable);\nprovided, that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement\nor otherwise) to the Company or any of its Representatives (including the Special Committee).\n1.2 Other Definitions As used in this letter agreement:\n(i) The term "affiliate" shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Exchange Act;\n(ii)\nThe term "Acquisition Transaction" shall mean (a) any merger, consolidation or other business combination, or liquidation, reorganization,\nor similar transaction, that results in any person or group directly or indirectly owning 50% or more of the voting securities of the Company, (b) the\nacquisition or sale (through tender or exchange offer, issuance or otherwise) of 50% or more of the voting securities of the Company, (c) the sale,\nlease or other actual or effective disposition of 50% or more of the assets of the Company based on the least of the book value or fair market value of\nsuch assets or the percentage of revenues or net income generated by such assets during the 12 months ending on December 31, 2010, or (d) any\ncombination of the foregoing, whether as a single transaction or a series of transactions;\n(iii) The term "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules, regulations and schedules\npromulgated thereunder;\n(iv) The term "Fully Financed" shall mean, when used with respect to an offer, having financing for such offer (a) in an amount sufficient to\npay\nthe\npurchase price and any transaction fees in connection with, and to refinance any debt that is reasonably expected to become payable upon\nconsummation of, an Acquisition Transaction that constitutes a Superior Proposal and (b) that is evidenced by executed commitment papers and/or\nexecuted definitive financing documentation from one or more bona fide financing sources with aggregate sufficient capital to provide such\nfinancing, which commitment papers and/or documentation contain terms and conditions customary for transactions of this type and size of\ntransaction.\n(v) The term "group" shall have the meaning given to that term (or as that term is used) in Section 13(d)(3) of the Exchange Act;\n(vi) The term "person" shall be broadly interpreted to include any individual, corporation, partnership, limited liability company, group or\nother entity;\n(vii) The term "Representatives" shall mean, with respect to any person, such person's affiliates (including, without limitation, subsidiaries)\nand joint ventures and any of the foregoing persons' respective directors, officers, employees, agents, representatives and advisors (including,\nwithout limitation, financial advisors, bankers, consultants, agents, counsel and\n2\naccountants) and Approved Financing Sources; provided, however, that, when used with respect to the Company, the Company's Representatives\nshall not include you or any other director of the Company who is also personnel of any Approved Financing Source, other than when acting in your\nor their capacity as a director or officer of the Company; and\n(viii) The term "Superior Proposal" shall mean, when used with respect to a pending Acquisition Transaction, any Fully Financed, bona fide\nwritten offer to acquire all of the shares of common stock of the Company not already owned by the offeror (or by any other\npersons\nacting\nin\nconcert with the offeror) (a) for cash at a price per share at least $1.00 higher than the price per share being offered in such pending Acquisition\nTransaction, (b) pursuant to a transaction that, taking into account all relevant factors, including without limitation, the source of financing,\nregulatory concerns and other factors, is reasonably likely to be consummated, (c) that is otherwise on customary terms and conditions and (d) that\ncan immediately be accepted by the Special Committee (subject to any legal or other requirements binding upon, or imposed by, the Special\nCommittee, such as the need to evaluate and approve the offer under applicable law). For purposes of determining whether an offer constitutes a\nSuperior Proposal, in the event the consideration being offered in such pending Acquisition Transaction includes any publicly traded equity\nsecurities, those equity securities shall be ascribed a value equal to the volume weighted average of the closing prices of such security on the primary\nsecurities exchange on which such security is traded for the five (5) consecutive trading days ending on and including the second trading day prior\nto\nthe date on which you make your offer to the Special Committee.\n1.3 Special Committee Authority.. Unless otherwise expressly agreed to in writing by the Special Committee, any and all actions contemplated\nhereby to be taken by the Company shall be taken by the Special Committee on behalf of the Company; provided, however, that any action\ncontemplated hereby to be taken by the Special Committee shall be taken by the Company from and after the dissolution of the Special Committee.\n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives (other than Approved\nFinancing Sources), to: (i) use the Evaluation Material solely for the purpose of evaluating, negotiating, financing, consummating, and implementing\na possible Transaction and your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in accordance with\nthis letter agreement, and (iii) without the prior written consent of the Special Committee, not disclose any of the Evaluation Material to any person;\nprovided, however, that you may disclose any of the Evaluation Material to (a) your Representatives (including Approved Financing Sources) solely\nfor purposes of evaluating, negotiating, financing, consummating and/or implementing a possible Transaction and your possible participation in the\nTransaction who agree to be bound by the terms hereof to the same extent as if they were parties hereto; provided, however, that, without the Special\nCommittee's prior consent, you shall not, and you shall cause your Representatives (other than Approved Financing Sources) not to, disclose to any\nof your Approved Financing Sources any Evaluation Material (other than Derivative Information that contains, reflects and is based upon only\nInformation that has already been provided to the Special Committee or its financial advisors, and no other Information) unless such Evaluation\nMaterial has already been provided to the Special Committee or its financial advisors, and (b) as otherwise permitted by Paragraph 2.2 hereof.\n3\n2.2 Compulsory. Disclosure. In the event that you or any of your Representatives (other than Approved Financing Sources) receives a request\n(by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by\nlaw, regulation, or regulatory authority or order or any rule of any stock exchange to which you or any of your Representatives is subject ("Law") to\ndisclose, any of the Evaluation Material, you or such Representative (other than Approved Financing Sources) shall, unless prohibited by Law,\n(i) provide the Company and the Special Committee with prompt written notice of such request or requirement, along with, to the extent applicable,\na copy of the request and the proposed disclosure, the circumstances surrounding such request or requirement, the reason that such disclosure\nis\nrequired and the time and place such disclosure is expected to be made, in each case with sufficient specificity so that the Company and/or the\nSpecial Committee may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement,\nand (ii) if requested by the Company and/or the Special Committee, assist the Company and/or the Special Committee (in each case, at the\nCompany's sole expense) in seeking a protective order or other appropriate remedy in response to such request or requirement. Without limiting the\ngenerality of the foregoing, you shall not, and shall cause your Representatives (other than Approved Financing Sources) not to, oppose any action\nby the Company and/or the Special Committee to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1, if, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Company and the Special Committee, you are, or any of your Representatives\nis, nonetheless, on the advice of counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises is required by Law to be disclosed,\nprovided that you, or, if applicable, such Representative, exercise commercially reasonable efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder. Notwithstanding the foregoing,\nyou may make filings (and disclosures required therein) under Section 13(d) of the Exchange Act that are on the advice of counsel required to\nbe\nmade by you or your Representatives without complying with this Paragraph 2.2; provided, that you have provided notice of your intent to make\nsuch filing (along with a reasonable description of the material items that will be disclosed in such filing) to the Special Committee as promptly\nas\npractical and in any event at least eight (8) hours prior to the filing thereof.\n2.3 Information Request Procedures. You further agree that, without the prior written consent of the Special Committee but subject to\nParagraph 6.2 hereof, all communications from you or your Representatives to the Company regarding any Transaction, including, without\nlimitation, requests for Information, will be submitted only to the Representatives of the Special Committee listed on Annex A hereto or to such\nother person or persons as the Special Committee may direct in writing and, unless expressly directed to the contrary by the Special Committee, not\nto the Company or any of its Representatives. Subject to Paragraph 6.2 hereof and other than with respect to Approved Financing Sources, you agree\nthat you will not, and you will cause\n4\nyour Representatives (other than Approved Financing Sources) not to, engage in any discussions with the Company or any of its suppliers, vendors,\nservice providers, joint venture partners, consultants or lenders regarding any Transaction without the prior consent of the Special Committee.\nNotwithstanding the foregoing and subject to the proviso in Paragraph 2.1(iii)(a) you shall not be prohibited from engaging in any communications\nwith any director of the Company who is also personnel of any Approved Financing Source.\n2.4\nReturn and Destruction of Evaluation Material. At any time upon the request of the Special Committee for any reason, you will promptly\n(i) deliver to the Special Committee all Evaluation Material (other than Derivative Information) in the possession of you or any of your\nRepresentatives (other than Approved Financing Sources) and (ii) at your election, deliver to the Special Committee or destroy all other Evaluation\nMaterial constituting Derivative Information in your or their possession, in each case without keeping any copies, in whole or part, in any medium\nwhatsoever, thereof. In the event of such a request, you shall deliver to the Special Committee a certificate stating that you have complied with all of\nthe requirements of this Paragraph 2.4. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions\nregarding the Transaction, you and your Representatives may retain Evaluation Material as required by Law or internal document retention policies\nsolely for such purposes (and not for the purposes provided for in Paragraph 2.1); provided, that you and your Representatives will continue to be\nbound by your obligations of confidentiality (including, without limitation, with respect to any Evaluation Material destroyed or not returned\npursuant to this Paragraph 2.4) and other obligations hereunder.\n2.5 Accuracy. of Evaluation Material. You understand and agree that none of the Company, the Special Committee or any of their respective\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree\nthat none of the Company, the Special Committee or any of their respective Representatives shall have any liability to you or any of your\nRepresentatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you or any of\nyour Representatives derive from the Evaluation Material. Only those representations or warranties that are made in a final definitive agreement\nproviding for the Transaction, when, as and if executed and delivered by the parties, and subject to such limitations and restrictions as may be\nspecified therein, will have any legal effect.\n2.6 Privileges. The Company does not intend to waive, or to cause any of its Representatives to waive, the attorney-client, attorney work\nproduct or other applicable privilege of the Company or any of its subsidiaries or joint ventures ("Privilege") by providing any Evaluation Material\nsubject to a Privilege, and any production by the Company or any of its Representatives of such Evaluation Material shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company or any of its Representatives of Evaluation\nMaterials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request by\nthe\nCompany or any of its Representatives, you will, and you will cause your Representatives (other than Approved Financing Sources) to, immediately\nreturn and/or destroy such inadvertently produced Evaluation Materials.\n5\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n3.\nNon-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one (1) year from the date hereof, you\nwill not, and will cause your Representatives (other than your Approved Financing Sources and third party advisors not taking action on your behalf\nor at your direction) not to, directly or indirectly, without obtaining the prior written consent of the Company and the Special Committee, solicit for\nemployment or employ any of the officers or senior employees of the Company or any of its subsidiaries or joint ventures, other than officers or\nemployees who have ceased to be such prior to your solicitation or employment of them; provided, however, that the foregoing shall not restrict your\nability to conduct generalized searches for officers or employees by use of advertisements in periodicals of general circulation or general\nsolicitations through recruiting agencies, in each case not directed at such officers or employees.\n4.\nStandstill and Related Provisions.\n4.1 Standstill Provisions. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of fifteen\n(15) months from the date hereof (the "Restricted Period"), unless expressly permitted or authorized hereby or in writing by the Special Committee\nto do so, you will not, and you will cause your Representatives (other than Approved Financing Sources and third party advisors not taking action on\nyour behalf or at your direction) not to, directly or indirectly, acting alone or as part of a group: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any (a) voting or other equity securities or direct or indirect rights to acquire any voting or other\nequity securities of the Company or any of its subsidiaries or joint ventures, or (b) any other securities, rights or interests, including without\nlimitation, options, swaps, derivatives or convertible or other similar instruments, whether real or synthetic, which give you the right to vote or to\ndirect the voting of any voting or equity securities of the Company or any of its subsidiaries or joint ventures; (ii) enter into or agree, offer, propose\nor seek to enter into, or otherwise be involved in or part of, directly or indirectly, any Acquisition Transaction; (iii) make, or in any way participate\nin, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or\nseek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company in connection with or related\nin\nany way to an Acquisition Transaction; (iv) form, join or in any way participate in a group with respect to any voting or other equity securities of the\nCompany or any of its subsidiaries or joint ventures (other than a Permitted Group (as defined below)); (v) seek or propose, alone or in concert with\nothers, to influence or control the management or policies of the Company or any of its subsidiaries or joint ventures in connection with or related in\nany way to an Acquisition Transaction; (vi) directly or indirectly enter into any discussions, negotiations, arrangements or understandings with any\nother person (other than Approved Financing Sources to the extent permitted hereby) with respect to any of the foregoing activities or propose any\nof\nsuch activities\n6\nto any other person (other than Approved Financing Sources to the extent permitted hereby); (vii) advise, assist, encourage, or act as a financing\nsource for or otherwise invest in any other person who may serve as a financing source in connection with any of the foregoing activities (other than\nApproved Financing Sources); (viii) disclose (except to the extent permitted hereby, to the Company, the Special Committee or their respective\nRepresentatives or Approved Financing Sources) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the\nCompany, the Special Committee or their respective Representatives, directly or indirectly (a) amend or waive any provision of this Paragraph 4.1\n(including this clause (ix)) or (b) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix));\n(x) take any action that might require the Company or its Representatives to make a public announcement regarding any of the activities referred\nto\nin clauses (i)-(ix) of this Paragraph 4.1 (other than disclosures expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions; provided, however, that the foregoing shall not restrict your and your Representatives' ability to (a) take any action, or permit any of\nyour\nRepresentatives to take any action, in (and solely in) your capacity, or the capacity of any such Representative, as a director or officer of the\nCompany, (b) exercise any of your options to purchase common stock of the Company, (c) acquire shares of common stock of the Company or other\nsecurities of the Company by way of distributions of such securities in connection with deferred director compensation, (d) as long as you have\ncomplied and continue to comply with the second sentence of Paragraph 4.3 (which shall not be limited by this clause (d)), submit to the Special\nCommittee one or more confidential proposals regarding a Transaction or (e) have discussions with and among your Representatives with respect\nto\na proposal for a Transaction, including, to the extent permitted by Paragraph 4.3, to form a group that is a Permitted Group. For the avoidance\nof\ndoubt, nothing in this letter agreement shall restrict your or your affiliates' ability to (1) sell or transfer (in whole or in part) or vote any securities\nof\nthe Company in your sole and absolute discretion or (2) amend your Schedule 13D as legally required (it being understood, however, that this clause\n(2) shall not be construed to permit you to take actions otherwise prohibited by this letter agreement). This letter agreement shall constitute a\n"standstill agreement" for purposes of the definition of "Acquiring Person" as defined in the Rights Agreement, dated as of January 12, 2011, by and\nbetween the Company and Continental Stock Transfer & Trust Company, as Rights Agent.\n4.2 Prohibition on Voting Restrictions. During the Restricted Period, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources and third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity,\nlock-up\nor other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the Company or other person\nthat has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be expected to limit, restrict,\nrestrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities of the Company\nbeneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of such voting\nsecurities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with any transaction\ninvolving the Company.\n4.3 Group Formation; Permitted Groups. You acknowledge that you have filed a Schedule 13D with the Securities and Exchange Commission\nin\nwhich you disclaim, as of the date of such Schedule 13D, the formation of a group with Oaktree Capital Management, L.P. and\n7\nits funds and accounts under management, Ares Management LLC and its funds under management, and Thomas Boone Pickens, Jr. and beneficial\nownership of shares of common stock of the Company of such persons. You shall not, without the prior written consent of the Special Committee,\njoin or form a group with any person other than one or more Approved Financing Sources. Any group permitted to be formed pursuant to the\nimmediately preceding sentence or with the prior written consent of the Special Committee shall be referred to as a "Permitted Group." You and the\nCompany each acknowledge that under certain circumstances, the joining or formation of a group by you and other shareholders of the Company\nmay trigger a default or an event of default or other material adverse effect under that certain Credit Agreement (the "Credit Agreement"), dated as\nof April 30, 2010, among the Company, certain subsidiaries of the Company, as guarantors, the lenders party thereto and JPMorgan Chase Bank,\nN.A., as administrative agent. The parties hereto acknowledge that the Company intends to seek to promptly obtain an effective waiver (a "Waiver")\nunder the Credit Agreement that permits you (together with other shareholders of the Company) to join or form a group without causing a default or\nan event of default or any other material adverse effect under the Credit Agreement. Further, you and the Company each agree to consult with each\nother and keep each other reasonably informed with respect to the pursuit of such Waiver. Notwithstanding the foregoing, the Special Committee\nshall retain the sole right to enter into such Waiver on behalf of the Company.\n4.4 Termination of Standstill and Related Provisions. Notwithstanding the foregoing, if (i) the Company enters into a definitive agreement with\nany person other than you, any of your affiliates or any other person who is a participant in a Permitted Group of which you are also a participant\nthat provides for an Acquisition Transaction that is approved, and recommended to the Company's shareholders, by the Special Committee, and\n(ii) thereafter you make a Superior Proposal, the effectiveness of Paragraphs 4.1 and 4.2 and the second sentence of Paragraph 4.3 shall terminate\nand the provisions of those paragraphs and sentence shall have no further force and effect.\n5.\nFinancing Sources and Other Interested Persons.\n5.1 Approved Financing Sources. Except for your Representatives, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources) not to, provide any Evaluation Material to any person except an Approved Financing Source. "Approved Financing\nSource" shall mean (i) any person listed on Annex B hereto, (ii) any person that (a) is an individual or a bona fide private equity firm or other similar\ninstitutional investor, (b) is not a direct or indirect beneficial owner of more than one percent (1%) of the equity securities of the Company or any of\nits subsidiaries or joint ventures, (c) is reasonably expected to provide financing for a potential Transaction in an amount that is less than $50 million\nand (d) the Special Committee does not have any reasonable, good faith reason to object to serving as an Approved Financing Source and (iii)\nany\nother person expressly approved by the Special Committee as an Approved Financing Source (such consent not to be unreasonably withheld);\nprovided in each case that a person shall be an Approved Financing Source only if such person, the Company and the Specia Committee shall have\nentered into a confidentiality agreement. The Company and the Special Committee shall enter into a confidentiality agreement with such potential\nApproved Financing Source in the form set forth on Annex C unless (1) the potential Approved Financing Source desires or insists upon material\nchanges thereto and/or (2) the\n8\nSpecial Committee concludes in good faith that such form of confidentiality agreement is not adequate or appropriate for such purposes as a result of\nany change, event or circumstance occurring or existing after the date hereof, in which case the Special Committee, on behalf of itself and the\nCompany, shall negotiate in good faith in an attempt to reach agreement on terms thereof acceptable to the parties. If the parties propose to enter into\na confidentiality agreement in the form set forth on Annex C, then promptly following your request, or in the case of a confidentiality agreement\nnegotiated among the parties pursuant to the previous sentence, then promptly following agreement between the parties on the terms thereof, the\nCompany and the Special Committee agree to execute such confidentiality agreement; provided that in no event shall the Company or the Special\nCommittee be under any obligation to execute any confidentiality agreement with any potential Approved Financing Source if the sum of the total\naggregate number of shares of capital stock of the Company owned (beneficially or of record) by such potential Approved Financing Source, you,\nyour Approved Financing Sources and any or all members of any group of which you are a member equals or exceeds 29.9% of the outstanding\nshares of capital stock of the Company unless and until the Waiver has been received by the Company and is effective.\n5.2 Financing Arrangements. You agree that without the prior written consent of the Special Committee, you shall not, and you shall cause\nyour\nRepresentatives (other than Approved Financing Sources) not to, directly or indirectly, enter into any agreements, arrangements or\nunderstandings, whether written or oral, with any person that provides or contemplates that such person shall, or reasonably could be expected to,\ndirectly or indirectly, provide equity or debt financing for, or otherwise serve as a principal party or investor in, any Transaction except for\nagreements, arrangements or understandings you may enter into in the future with Approved Financing Sources (but in any event subject to the other\nlimitations set forth in this letter agreement, including Paragraph 5.3). You represent and warrant to the Company and the Special Committee that\nneither you nor any of your Representatives (other than Approved Financing Sources) that are acting on your behalf or at your direction have entered\ninto any such agreement, arrangement or any understanding other than those that have been disclosed in writing to the Special Committee or publicly\ndisclosed as of the date hereof.\n5.3 Prohibition on Exclusive Arrangements. You shall not, and you shall cause your Representatives (other than (a) your Approved Financing\nSources and (b) third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up or other\nagreement, arrangement or understanding, whether written or oral, with any person that is intended or could otherwise reasonably be expected\nto\nlimit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to provide financing to any other person in\nconnection with any transaction involving the Company; provided, however, that nothing in this sentence shall prohibit you from limiting,\nrestricting, restraining or impairing any person that is providing equity financing to you from providing equity financing to any other person. You\nrepresent and warrant to the Company and the Special Committee that neither you nor any of your Representatives that are acting on your behalf\nor\nat your direction (other than Approved Financing Sources and third party advisors not taking action on your behalf or at your direction) have entered\ninto any such agreement, arrangement or any understanding as of the date hereof.\n9\n5.4 No Discouragement. You shall not, and you shall cause your Representatives (other than Approved Financing Sources and third party\nadvisors not taking action on your behalf or at your direction) not to, take any action to discourage any person from making any proposal with\nrespect to a Transaction. However, nothing in this letter agreement shall limit in any respect your rights as to the terms, conditions or the\ncontinuation or termination of your employment with the Company or any of its subsidiaries or joint ventures.\n6. Miscellaneous.\n6.1 Compliance with Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the\nfederal and state securities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities\nof such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities. You will, and will cause your Representatives (other than Approved Financing Sources and third\nparty advisors not taking action on your behalf or at your direction) to, comply with federal and state securities laws in connection with the receipt of\nEvaluation Material contemplated hereby.\n6.2 Fiduciary. Responsibilities. Nothing contained in this letter agreement shall be deemed to limit or expand your rights or obligations in\ndischarging, or restrict your activities in furtherance of, your fiduciary responsibilities as a director of the Company for so long as you shall remain\na\ndirector of the Company.\n6.3 Breach. You shall be responsible for any breach of this letter agreement by you or any of your Representatives (other than Approved\nFinancing Sources) of the terms specifically applicable to Representatives, and you agree, at your sole expense, to take all reasonable measures\nto\navoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of this letter agreement by any of your\nRepresentatives (other than Approved Financing Sources) of the terms specifically applicable to Representatives. The foregoing obligation shall not\nlimit the remedies available to the Company for any such breach of this letter agreement.\n6.4 Process. You agree that unless and until a final definitive written agreement providing for a Transaction has been executed and delivered by\nthe Company and you, none of the Company, the Special Committee or any of their respective Representatives will be under any legal obligation of\nany\nkind\nwhatsoever with respect to such Transaction by virtue of this letter agreement. You further acknowledge and agree that the Special\nCommittee reserves the right to both reject any and all proposals made by you or your Representatives with regard to a Transaction and/or\nto\nterminate discussions and negotiations with you or any of your Representatives at any time for any reason or no reason. The Special Committee\nretains\nthe\nright\nto\ndetermine\nwhat\nInformation\nit\nwill\nmake\navailable\nto\nyou\nor\nany\nof\nyour\nRepresentatives.\nYou\nalso\nunderstand\nand\nagree\nthat\nthis\nletter agreement does not limit the Company, the Special Committee or any of their respective Representatives from entering into negotiations and\ndiscussions with other parties for a possible transaction in lieu of the Transaction with you and entering into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives. You also understand and agree that this letter agreement does not limit the\n10\nCompany, the Special Committee or any of their respective Representatives from changing in any way the Company's or the Special Committee's\nprocess for considering the Transaction or any transaction in lieu of the Transaction without prior notice to you or any of your Representatives.\n6.5 Notices. All notices, claims, demands and other communications under this Agreement shall be in writing and shall be delivered\npersonally, telecopied or emailed with confirmation of receipt, or by next-day courier to you, the Company or the Special Committee, as applicable,\nat the addresses specified below (or at such other address as shall be specified by a person by like notice; provided that notices of a change of\naddress shall be effective only upon receipt thereof). Any such notice shall be effective upon receipt, if personally delivered, telecopied or emailed,\nor one day after delivery to a courier for next-day delivery.\nIf to you:\nDouglas H. Miller\n12377 Merit Dr., Suite 1700\nDallas, TX 75251\nFacsimile:\n(214) 378-5442\nE-mail:\ndmillerbreakaway@gmail.com\ndsablotny@excoresources.com\nWith a copy to:\nVinson & Elkins LLP\n2001 Ross Avenue, Suite 3700\nDallas, TX 75201\nAttention:\nJeffery A. Chapman\nJohn M. Grand\nFacsimile:\n(212) 999-7797\nE-mail:\njchapman@velaw.com\njgrand@velaw.com\nIf to the Company:\nEXCO Resources, Inc.\nc/o the Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention:\nThomas W. Christopher\nWilliam B. Sorabella\nFacsimile:\n(212) 446-4900\nE-mail:\nthomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\nIf to the Special Committee:\nThe Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention:\nThomas W. Christopher\nWilliam B. Sorabella\nFacsimile:\n(212) 446-4900\nE-mail\nthomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\n11\n6.6 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company, the Special\nCommittee and you expressly so modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company\nor\nthe Special Committee in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n6.7\nSeverability..\nThe invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability\nof\nany\nother provisions of this letter agreement. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.8 Entire Agreement. This letter agreement, together with the other instruments and agreements referenced herein, contains the entire\nagreement between the Company, the Special Committee and you concerning the subject matter hereof. This letter agreement and such instruments\nand agreements shall be in addition to, and shall not limit the effectiveness of any other previous agreement, whether written or oral, that may relate\nto the subject matter hereof, including, without limitation, any agreements entered into, or policies to which you are subject, as an officer of the\nCompany.\n6.9 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby\nyou or any of your Representatives (other than Approved Financing Sources) and, in addition to all other remedies that the Company,\nthe\nSpecial\nCommittee or any of their respective Representatives may have at law or in equity, the Company, the Special Committee and any of their respective\nRepresentatives shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such\nbreach and you hereby waive any requirement for the securing or posting of any bond in connection with such remedy.\n6.10 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Texas\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the federal and state courts sitting in Dallas County, Texas (collectively,\nthe "Texas Courts") for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence any action, suit\nor proceeding related thereto except in a Texas Court. Each of the parties hereto further agrees that service of any process, summons, notice or\ndocument by registered mail to its address set forth above shall be effective service of process for any action, suit or proceeding brought against it\nin\nany Texas Court.\n6.11 Assignment; Binding Effect. Without the prior consent of the other party, neither party may assign its rights or obligations (in the case of\nthe Company, other than by operation of\n12\nlaw)\nunder this letter agreement to any person. This letter agreement shall be binding upon you and your respective successors and permitted assigns\nand shall inure to the benefit of, and be enforceable by, the Company and its respective successors and permitted assigns.\n6.12 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n6.13 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.14 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile or electronic transmission copies, each of which shall be deemed to be an original.\n6.15 Term. Except as otherwise specifically provided herein, this letter agreement shall terminate and be of no further force and effect as of the\ndate that is fifteen (15) months following the date hereof; provided, however that such termination shall not relieve you from your responsibilities in\nrespect of any breach of this letter agreement prior to such termination.\n(Signature page follows)\n13\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nSPECIAL COMMITTEE OF THE BOARD OF\nDIRECTORS OF EXCO RESOURCES, INC.\nBy:\n/s/ Vincent Cebula\nName: Vincent Cebula\nTitle: Chairman of the Special Committee\nEXCO RESOURCES, INC.\nBy:\n/s/ William L. Boeing\nName: William L. Boeing\nTitle: Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nDOUGLAS H. MILLER\nBy:\n/s/ Douglas H. Miller\nName: Douglas H. Miller	EX-99.2 3 dex992.htm CONFIDENTIALITY AGREEMENT\nExhibit 99.2\nCONFIDENTIAL\nEXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nJanuary 12, 2011\nDouglas H. Miller\nc/o EXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nDear Mr. Miller:\nIn connection with the consideration of a possible negotiated buyout transaction (the “Transaction”) involving you and EXCO Resources, Inc.,\na Texas corporation (the “Company,” which term shall, for purposes of this letter agreement, include its subsidiaries), the Special Committee of the\nBoard of Directors of the Company formed on November 3, 2010 (the “Special Committee”) is prepared to make available to you, on behalf of the\nCompany, certain information concerning the Company, upon the terms and subject to the conditions set forth in this letter agreement. As a condition\nto such information being furnished to you, you agree to comply with all the terms of this letter agreement.\n1. Definitions.\n1.1 Evaluation Material. The term “Evaluation Material” shall mean all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries or\njoint ventures, or any of the businesses, properties, assets, operations, products, services, liabilities, condition (financial or otherwise), employees,\nprospects and/or results of operations of any of the foregoing (whether prepared by the Company, any of its Representatives (as defined below) or\notherwise) that previously has been or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined\nbelow) (collectively, “Information”), as well as all notes, analyses, compilations, summaries, extracts, studies, interpretations or other materials\nprepared by you or any of your Representatives, but only to the extent that the foregoing contain, reflect or are based upon any Information\n(“Derivative Information”). The term “Evaluation Material” shall also be deemed to include, without limitation, the status or terms and conditions of\nany discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term “Evaluation Material” does not\ninclude information or any portion thereof that (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any\nof your Representatives in violation of this letter agreement or any other obligation of\n1\nconfidentiality to the Company), (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause\n(ii) shall not be applicable), or (iii) becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives (other than in your capacity as an officer or director of the Company, in which case this clause (iii) shall not be applicable);\nprovided, that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement\nor otherwise) to the Company or any of its Representatives (including the Special Committee).\n1.2 Other Definitions. As used in this letter agreement:\n(i) The term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Exchange Act;\n(ii) The term “Acquisition Transaction” shall mean (a) any merger, consolidation or other business combination, or liquidation, reorganization,\nor similar transaction, that results in any person or group directly or indirectly owning 50% or more of the voting securities of the Company, (b) the\nacquisition or sale (through tender or exchange offer, issuance or otherwise) of 50% or more of the voting securities of the Company, (c) the sale,\nlease or other actual or effective disposition of 50% or more of the assets of the Company based on the least of the book value or fair market value of\nsuch assets or the percentage of revenues or net income generated by such assets during the 12 months ending on December 31, 2010, or (d) any\ncombination of the foregoing, whether as a single transaction or a series of transactions;\n(iii) The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules, regulations and schedules\npromulgated thereunder;\n(iv) The term “Fully Financed” shall mean, when used with respect to an offer, having financing for such offer (a) in an amount sufficient to\npay the purchase price and any transaction fees in connection with, and to refinance any debt that is reasonably expected to become payable upon\nconsummation of, an Acquisition Transaction that constitutes a Superior Proposal and (b) that is evidenced by executed commitment papers and/or\nexecuted definitive financing documentation from one or more bona fide financing sources with aggregate sufficient capital to provide such\nfinancing, which commitment papers and/or documentation contain terms and conditions customary for transactions of this type and size of\ntransaction.\n(v) The term “group” shall have the meaning given to that term (or as that term is used) in Section 13(d)(3) of the Exchange Act;\n(vi) The term “person” shall be broadly interpreted to include any individual, corporation, partnership, limited liability company, group or\nother entity;\n(vii) The term “Representatives” shall mean, with respect to any person, such person’s affiliates (including, without limitation, subsidiaries)\nand joint ventures and any of the foregoing persons’ respective directors, officers, employees, agents, representatives and advisors (including,\nwithout limitation, financial advisors, bankers, consultants, agents, counsel and\n2\naccountants) and Approved Financing Sources; provided, however, that, when used with respect to the Company, the Company’s Representatives\nshall not include you or any other director of the Company who is also personnel of any Approved Financing Source, other than when acting in your\nor their capacity as a director or officer of the Company; and\n(viii) The term “Superior Proposal” shall mean, when used with respect to a pending Acquisition Transaction, any Fully Financed, bona fide\nwritten offer to acquire all of the shares of common stock of the Company not already owned by the offeror (or by any other persons acting in\nconcert with the offeror) (a) for cash at a price per share at least $1.00 higher than the price per share being offered in such pending Acquisition\nTransaction, (b) pursuant to a transaction that, taking into account all relevant factors, including without limitation, the source of financing,\nregulatory concerns and other factors, is reasonably likely to be consummated, (c) that is otherwise on customary terms and conditions and (d) that\ncan immediately be accepted by the Special Committee (subject to any legal or other requirements binding upon, or imposed by, the Special\nCommittee, such as the need to evaluate and approve the offer under applicable law). For purposes of determining whether an offer constitutes a\nSuperior Proposal, in the event the consideration being offered in such pending Acquisition Transaction includes any publicly traded equity\nsecurities, those equity securities shall be ascribed a value equal to the volume weighted average of the closing prices of such security on the primary\nsecurities exchange on which such security is traded for the five (5) consecutive trading days ending on and including the second trading day prior to\nthe date on which you make your offer to the Special Committee.\n1.3 Special Committee Authority. Unless otherwise expressly agreed to in writing by the Special Committee, any and all actions contemplated\nhereby to be taken by the Company shall be taken by the Special Committee on behalf of the Company; provided, however, that any action\ncontemplated hereby to be taken by the Special Committee shall be taken by the Company from and after the dissolution of the Special Committee.\n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives (other than Approved\nFinancing Sources), to: (i) use the Evaluation Material solely for the purpose of evaluating, negotiating, financing, consummating, and implementing\na possible Transaction and your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in accordance with\nthis letter agreement, and (iii) without the prior written consent of the Special Committee, not disclose any of the Evaluation Material to any person;\nprovided, however, that you may disclose any of the Evaluation Material to (a) your Representatives (including Approved Financing Sources) solely\nfor purposes of evaluating, negotiating, financing, consummating and/or implementing a possible Transaction and your possible participation in the\nTransaction who agree to be bound by the terms hereof to the same extent as if they were parties hereto; provided, however, that, without the Special\nCommittee’s prior consent, you shall not, and you shall cause your Representatives (other than Approved Financing Sources) not to, disclose to any\nof your Approved Financing Sources any Evaluation Material (other than Derivative Information that contains, reflects and is based upon only\nInformation that has already been provided to the Special Committee or its financial advisors, and no other Information) unless such Evaluation\nMaterial has already been provided to the Special Committee or its financial advisors, and (b) as otherwise permitted by Paragraph 2.2 hereof.\n3\n2.2 Compulsory Disclosure. In the event that you or any of your Representatives (other than Approved Financing Sources) receives a request\n(by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by\nlaw, regulation, or regulatory authority or order or any rule of any stock exchange to which you or any of your Representatives is subject (“Law”) to\ndisclose, any of the Evaluation Material, you or such Representative (other than Approved Financing Sources) shall, unless prohibited by Law,\n(i) provide the Company and the Special Committee with prompt written notice of such request or requirement, along with, to the extent applicable,\na copy of the request and the proposed disclosure, the circumstances surrounding such request or requirement, the reason that such disclosure is\nrequired and the time and place such disclosure is expected to be made, in each case with sufficient specificity so that the Company and/or the\nSpecial Committee may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement,\nand (ii) if requested by the Company and/or the Special Committee, assist the Company and/or the Special Committee (in each case, at the\nCompany’s sole expense) in seeking a protective order or other appropriate remedy in response to such request or requirement. Without limiting the\ngenerality of the foregoing, you shall not, and shall cause your Representatives (other than Approved Financing Sources) not to, oppose any action\nby the Company and/or the Special Committee to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1, if, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Company and the Special Committee, you are, or any of your Representatives\nis, nonetheless, on the advice of counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises is required by Law to be disclosed,\nprovided that you, or, if applicable, such Representative, exercise commercially reasonable efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder. Notwithstanding the foregoing,\nyou may make filings (and disclosures required therein) under Section 13(d) of the Exchange Act that are on the advice of counsel required to be\nmade by you or your Representatives without complying with this Paragraph 2.2; provided, that you have provided notice of your intent to make\nsuch filing (along with a reasonable description of the material items that will be disclosed in such filing) to the Special Committee as promptly as\npractical and in any event at least eight (8) hours prior to the filing thereof.\n2.3 Information Request Procedures. You further agree that, without the prior written consent of the Special Committee but subject to\nParagraph 6.2 hereof, all communications from you or your Representatives to the Company regarding any Transaction, including, without\nlimitation, requests for Information, will be submitted only to the Representatives of the Special Committee listed on Annex A hereto or to such\nother person or persons as the Special Committee may direct in writing and, unless expressly directed to the contrary by the Special Committee, not\nto the Company or any of its Representatives. Subject to Paragraph 6.2 hereof and other than with respect to Approved Financing Sources, you agree\nthat you will not, and you will cause\n4\nyour Representatives (other than Approved Financing Sources) not to, engage in any discussions with the Company or any of its suppliers, vendors,\nservice providers, joint venture partners, consultants or lenders regarding any Transaction without the prior consent of the Special Committee.\nNotwithstanding the foregoing and subject to the proviso in Paragraph 2.1(iii)(a), you shall not be prohibited from engaging in any communications\nwith any director of the Company who is also personnel of any Approved Financing Source.\n2.4 Return and Destruction of Evaluation Material. At any time upon the request of the Special Committee for any reason, you will promptly\n(i) deliver to the Special Committee all Evaluation Material (other than Derivative Information) in the possession of you or any of your\nRepresentatives (other than Approved Financing Sources) and (ii) at your election, deliver to the Special Committee or destroy all other Evaluation\nMaterial constituting Derivative Information in your or their possession, in each case without keeping any copies, in whole or part, in any medium\nwhatsoever, thereof. In the event of such a request, you shall deliver to the Special Committee a certificate stating that you have complied with all of\nthe requirements of this Paragraph 2.4. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions\nregarding the Transaction, you and your Representatives may retain Evaluation Material as required by Law or internal document retention policies\nsolely for such purposes (and not for the purposes provided for in Paragraph 2.1); provided, that you and your Representatives will continue to be\nbound by your obligations of confidentiality (including, without limitation, with respect to any Evaluation Material destroyed or not returned\npursuant to this Paragraph 2.4) and other obligations hereunder.\n2.5 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Special Committee or any of their respective\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree\nthat none of the Company, the Special Committee or any of their respective Representatives shall have any liability to you or any of your\nRepresentatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you or any of\nyour Representatives derive from the Evaluation Material. Only those representations or warranties that are made in a final definitive agreement\nproviding for the Transaction, when, as and if executed and delivered by the parties, and subject to such limitations and restrictions as may be\nspecified therein, will have any legal effect.\n2.6 Privileges. The Company does not intend to waive, or to cause any of its Representatives to waive, the attorney-client, attorney work\nproduct or other applicable privilege of the Company or any of its subsidiaries or joint ventures (“Privilege”) by providing any Evaluation Material\nsubject to a Privilege, and any production by the Company or any of its Representatives of such Evaluation Material shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company or any of its Representatives of Evaluation\nMaterials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request by the\nCompany or any of its Representatives, you will, and you will cause your Representatives (other than Approved Financing Sources) to, immediately\nreturn and/or destroy such inadvertently produced Evaluation Materials.\n5\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n3. Non-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one (1) year from the date hereof, you\nwill not, and will cause your Representatives (other than your Approved Financing Sources and third party advisors not taking action on your behalf\nor at your direction) not to, directly or indirectly, without obtaining the prior written consent of the Company and the Special Committee, solicit for\nemployment or employ any of the officers or senior employees of the Company or any of its subsidiaries or joint ventures, other than officers or\nemployees who have ceased to be such prior to your solicitation or employment of them; provided, however, that the foregoing shall not restrict your\nability to conduct generalized searches for officers or employees by use of advertisements in periodicals of general circulation or general\nsolicitations through recruiting agencies, in each case not directed at such officers or employees.\n4. Standstill and Related Provisions.\n4.1 Standstill Provisions. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of fifteen\n(15) months from the date hereof (the “Restricted Period”), unless expressly permitted or authorized hereby or in writing by the Special Committee\nto do so, you will not, and you will cause your Representatives (other than Approved Financing Sources and third party advisors not taking action on\nyour behalf or at your direction) not to, directly or indirectly, acting alone or as part of a group: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any (a) voting or other equity securities or direct or indirect rights to acquire any voting or other\nequity securities of the Company or any of its subsidiaries or joint ventures, or (b) any other securities, rights or interests, including without\nlimitation, options, swaps, derivatives or convertible or other similar instruments, whether real or synthetic, which give you the right to vote or to\ndirect the voting of any voting or equity securities of the Company or any of its subsidiaries or joint ventures; (ii) enter into or agree, offer, propose\nor seek to enter into, or otherwise be involved in or part of, directly or indirectly, any Acquisition Transaction; (iii) make, or in any way participate\nin, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or\nseek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company in connection with or related in\nany way to an Acquisition Transaction; (iv) form, join or in any way participate in a group with respect to any voting or other equity securities of the\nCompany or any of its subsidiaries or joint ventures (other than a Permitted Group (as defined below)); (v) seek or propose, alone or in concert with\nothers, to influence or control the management or policies of the Company or any of its subsidiaries or joint ventures in connection with or related in\nany way to an Acquisition Transaction; (vi) directly or indirectly enter into any discussions, negotiations, arrangements or understandings with any\nother person (other than Approved Financing Sources to the extent permitted hereby) with respect to any of the foregoing activities or propose any of\nsuch activities\n6\nto any other person (other than Approved Financing Sources to the extent permitted hereby); (vii) advise, assist, encourage, or act as a financing\nsource for or otherwise invest in any other person who may serve as a financing source in connection with any of the foregoing activities (other than\nApproved Financing Sources); (viii) disclose (except to the extent permitted hereby, to the Company, the Special Committee or their respective\nRepresentatives or Approved Financing Sources) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the\nCompany, the Special Committee or their respective Representatives, directly or indirectly (a) amend or waive any provision of this Paragraph 4.1\n(including this clause (ix)) or (b) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix));\n(x) take any action that might require the Company or its Representatives to make a public announcement regarding any of the activities referred to\nin clauses (i)-(ix) of this Paragraph 4.1 (other than disclosures expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions; provided, however, that the foregoing shall not restrict your and your Representatives’ ability to (a) take any action, or permit any of your\nRepresentatives to take any action, in (and solely in) your capacity, or the capacity of any such Representative, as a director or officer of the\nCompany, (b) exercise any of your options to purchase common stock of the Company, (c) acquire shares of common stock of the Company or other\nsecurities of the Company by way of distributions of such securities in connection with deferred director compensation, (d) as long as you have\ncomplied and continue to comply with the second sentence of Paragraph 4.3 (which shall not be limited by this clause (d)), submit to the Special\nCommittee one or more confidential proposals regarding a Transaction or (e) have discussions with and among your Representatives with respect to\na proposal for a Transaction, including, to the extent permitted by Paragraph 4.3, to form a group that is a Permitted Group. For the avoidance of\ndoubt, nothing in this letter agreement shall restrict your or your affiliates’ ability to (1) sell or transfer (in whole or in part) or vote any securities of\nthe Company in your sole and absolute discretion or (2) amend your Schedule 13D as legally required (it being understood, however, that this clause\n(2) shall not be construed to permit you to take actions otherwise prohibited by this letter agreement). This letter agreement shall constitute a\n“standstill agreement” for purposes of the definition of “Acquiring Person” as defined in the Rights Agreement, dated as of January 12, 2011, by and\nbetween the Company and Continental Stock Transfer & Trust Company, as Rights Agent.\n4.2 Prohibition on Voting Restrictions. During the Restricted Period, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources and third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up\nor other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the Company or other person\nthat has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be expected to limit, restrict,\nrestrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities of the Company\nbeneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of such voting\nsecurities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with any transaction\ninvolving the Company.\n4.3 Group Formation; Permitted Groups. You acknowledge that you have filed a Schedule 13D with the Securities and Exchange Commission\nin which you disclaim, as of the date of such Schedule 13D, the formation of a group with Oaktree Capital Management, L.P. and\n7\nits funds and accounts under management, Ares Management LLC and its funds under management, and Thomas Boone Pickens, Jr. and beneficial\nownership of shares of common stock of the Company of such persons. You shall not, without the prior written consent of the Special Committee,\njoin or form a group with any person other than one or more Approved Financing Sources. Any group permitted to be formed pursuant to the\nimmediately preceding sentence or with the prior written consent of the Special Committee shall be referred to as a “Permitted Group.” You and the\nCompany each acknowledge that under certain circumstances, the joining or formation of a group by you and other shareholders of the Company\nmay trigger a default or an event of default or other material adverse effect under that certain Credit Agreement (the “Credit Agreement”), dated as\nof April 30, 2010, among the Company, certain subsidiaries of the Company, as guarantors, the lenders party thereto and JPMorgan Chase Bank,\nN.A., as administrative agent. The parties hereto acknowledge that the Company intends to seek to promptly obtain an effective waiver (a “Waiver”)\nunder the Credit Agreement that permits you (together with other shareholders of the Company) to join or form a group without causing a default or\nan event of default or any other material adverse effect under the Credit Agreement. Further, you and the Company each agree to consult with each\nother and keep each other reasonably informed with respect to the pursuit of such Waiver. Notwithstanding the foregoing, the Special Committee\nshall retain the sole right to enter into such Waiver on behalf of the Company.\n4.4 Termination of Standstill and Related Provisions. Notwithstanding the foregoing, if (i) the Company enters into a definitive agreement with\nany person other than you, any of your affiliates or any other person who is a participant in a Permitted Group of which you are also a participant\nthat provides for an Acquisition Transaction that is approved, and recommended to the Company’s shareholders, by the Special Committee, and\n(ii) thereafter you make a Superior Proposal, the effectiveness of Paragraphs 4.1 and 4.2 and the second sentence of Paragraph 4.3 shall terminate\nand the provisions of those paragraphs and sentence shall have no further force and effect.\n5. Financing Sources and Other Interested Persons.\n5.1 Approved Financing Sources. Except for your Representatives, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources) not to, provide any Evaluation Material to any person except an Approved Financing Source. “Approved Financing\nSource” shall mean (i) any person listed on Annex B hereto, (ii) any person that (a) is an individual or a bona fide private equity firm or other similar\ninstitutional investor, (b) is not a direct or indirect beneficial owner of more than one percent (1%) of the equity securities of the Company or any of\nits subsidiaries or joint ventures, (c) is reasonably expected to provide financing for a potential Transaction in an amount that is less than $50 million\nand (d) the Special Committee does not have any reasonable, good faith reason to object to serving as an Approved Financing Source and (iii) any\nother person expressly approved by the Special Committee as an Approved Financing Source (such consent not to be unreasonably withheld);\nprovided in each case that a person shall be an Approved Financing Source only if such person, the Company and the Special Committee shall have\nentered into a confidentiality agreement. The Company and the Special Committee shall enter into a confidentiality agreement with such potential\nApproved Financing Source in the form set forth on Annex C unless (1) the potential Approved Financing Source desires or insists upon material\nchanges thereto and/or (2) the\n8\nSpecial Committee concludes in good faith that such form of confidentiality agreement is not adequate or appropriate for such purposes as a result of\nany change, event or circumstance occurring or existing after the date hereof, in which case the Special Committee, on behalf of itself and the\nCompany, shall negotiate in good faith in an attempt to reach agreement on terms thereof acceptable to the parties. If the parties propose to enter into\na confidentiality agreement in the form set forth on Annex C, then promptly following your request, or in the case of a confidentiality agreement\nnegotiated among the parties pursuant to the previous sentence, then promptly following agreement between the parties on the terms thereof, the\nCompany and the Special Committee agree to execute such confidentiality agreement; provided that in no event shall the Company or the Special\nCommittee be under any obligation to execute any confidentiality agreement with any potential Approved Financing Source if the sum of the total\naggregate number of shares of capital stock of the Company owned (beneficially or of record) by such potential Approved Financing Source, you,\nyour Approved Financing Sources and any or all members of any group of which you are a member equals or exceeds 29.9% of the outstanding\nshares of capital stock of the Company unless and until the Waiver has been received by the Company and is effective.\n5.2 Financing Arrangements. You agree that without the prior written consent of the Special Committee, you shall not, and you shall cause\nyour Representatives (other than Approved Financing Sources) not to, directly or indirectly, enter into any agreements, arrangements or\nunderstandings, whether written or oral, with any person that provides or contemplates that such person shall, or reasonably could be expected to,\ndirectly or indirectly, provide equity or debt financing for, or otherwise serve as a principal party or investor in, any Transaction except for\nagreements, arrangements or understandings you may enter into in the future with Approved Financing Sources (but in any event subject to the other\nlimitations set forth in this letter agreement, including Paragraph 5.3). You represent and warrant to the Company and the Special Committee that\nneither you nor any of your Representatives (other than Approved Financing Sources) that are acting on your behalf or at your direction have entered\ninto any such agreement, arrangement or any understanding other than those that have been disclosed in writing to the Special Committee or publicly\ndisclosed as of the date hereof.\n5.3 Prohibition on Exclusive Arrangements. You shall not, and you shall cause your Representatives (other than (a) your Approved Financing\nSources and (b) third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up or other\nagreement, arrangement or understanding, whether written or oral, with any person that is intended or could otherwise reasonably be expected to\nlimit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to provide financing to any other person in\nconnection with any transaction involving the Company; provided, however, that nothing in this sentence shall prohibit you from limiting,\nrestricting, restraining or impairing any person that is providing equity financing to you from providing equity financing to any other person. You\nrepresent and warrant to the Company and the Special Committee that neither you nor any of your Representatives that are acting on your behalf or\nat your direction (other than Approved Financing Sources and third party advisors not taking action on your behalf or at your direction) have entered\ninto any such agreement, arrangement or any understanding as of the date hereof.\n9\n5.4 No Discouragement. You shall not, and you shall cause your Representatives (other than Approved Financing Sources and third party\nadvisors not taking action on your behalf or at your direction) not to, take any action to discourage any person from making any proposal with\nrespect to a Transaction. However, nothing in this letter agreement shall limit in any respect your rights as to the terms, conditions or the\ncontinuation or termination of your employment with the Company or any of its subsidiaries or joint ventures.\n6. Miscellaneous.\n6.1 Compliance with Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the\nfederal and state securities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities\nof such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities. You will, and will cause your Representatives (other than Approved Financing Sources and third\nparty advisors not taking action on your behalf or at your direction) to, comply with federal and state securities laws in connection with the receipt of\nEvaluation Material contemplated hereby.\n6.2 Fiduciary Responsibilities. Nothing contained in this letter agreement shall be deemed to limit or expand your rights or obligations in\ndischarging, or restrict your activities in furtherance of, your fiduciary responsibilities as a director of the Company for so long as you shall remain a\ndirector of the Company.\n6.3 Breach. You shall be responsible for any breach of this letter agreement by you or any of your Representatives (other than Approved\nFinancing Sources) of the terms specifically applicable to Representatives, and you agree, at your sole expense, to take all reasonable measures to\navoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of this letter agreement by any of your\nRepresentatives (other than Approved Financing Sources) of the terms specifically applicable to Representatives. The foregoing obligation shall not\nlimit the remedies available to the Company for any such breach of this letter agreement.\n6.4 Process. You agree that unless and until a final definitive written agreement providing for a Transaction has been executed and delivered by\nthe Company and you, none of the Company, the Special Committee or any of their respective Representatives will be under any legal obligation of\nany kind whatsoever with respect to such Transaction by virtue of this letter agreement. You further acknowledge and agree that the Special\nCommittee reserves the right to both reject any and all proposals made by you or your Representatives with regard to a Transaction and/or to\nterminate discussions and negotiations with you or any of your Representatives at any time for any reason or no reason. The Special Committee\nretains the right to determine what Information it will make available to you or any of your Representatives. You also understand and agree that this\nletter agreement does not limit the Company, the Special Committee or any of their respective Representatives from entering into negotiations and\ndiscussions with other parties for a possible transaction in lieu of the Transaction with you and entering into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives. You also understand and agree that this letter agreement does not limit the\n10\nCompany, the Special Committee or any of their respective Representatives from changing in any way the Company’s or the Special Committee’s\nprocess for considering the Transaction or any transaction in lieu of the Transaction without prior notice to you or any of your Representatives.\n6.5 Notices. All notices, claims, demands and other communications under this Agreement shall be in writing and shall be delivered\npersonally, telecopied or emailed with confirmation of receipt, or by next-day courier to you, the Company or the Special Committee, as applicable,\nat the addresses specified below (or at such other address as shall be specified by a person by like notice; provided that notices of a change of\naddress shall be effective only upon receipt thereof). Any such notice shall be effective upon receipt, if personally delivered, telecopied or emailed,\nor one day after delivery to a courier for next-day delivery.\nIf to you:\nDouglas H. Miller\n12377 Merit Dr., Suite 1700\nDallas, TX 75251\nFacsimile:\n(214) 378-5442\nE-mail:\ndmillerbreakaway@gmail.com\ndsablotny@excoresources.com\nWith a copy to:\nVinson & Elkins LLP\n2001 Ross Avenue, Suite 3700\nDallas, TX 75201\nAttention:\nJeffery A. Chapman\nJohn M. Grand\nFacsimile:\n(212) 999-7797\nE-mail:\njchapman@velaw.com\njgrand@velaw.com\nIf to the Company:\nEXCO Resources, Inc.\nc/o the Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention:\nThomas W. Christopher\nWilliam B. Sorabella\nFacsimile:\n(212) 446-4900\nE-mail:\nthomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\nIf to the Special Committee:\nThe Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention:\nThomas W. Christopher\nWilliam B. Sorabella\nFacsimile:\n(212) 446-4900\nE-mail:\nthomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\n11\n6.6 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company, the Special\nCommittee and you expressly so modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company or\nthe Special Committee in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n6.7 Severability. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any\nother provisions of this letter agreement. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.8 Entire Agreement. This letter agreement, together with the other instruments and agreements referenced herein, contains the entire\nagreement between the Company, the Special Committee and you concerning the subject matter hereof. This letter agreement and such instruments\nand agreements shall be in addition to, and shall not limit the effectiveness of any other previous agreement, whether written or oral, that may relate\nto the subject matter hereof, including, without limitation, any agreements entered into, or policies to which you are subject, as an officer of the\nCompany.\n6.9 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives (other than Approved Financing Sources) and, in addition to all other remedies that the Company, the Special\nCommittee or any of their respective Representatives may have at law or in equity, the Company, the Special Committee and any of their respective\nRepresentatives shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such\nbreach and you hereby waive any requirement for the securing or posting of any bond in connection with such remedy.\n6.10 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Texas\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the federal and state courts sitting in Dallas County, Texas (collectively,\nthe “Texas Courts”) for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence any action, suit\nor proceeding related thereto except in a Texas Court. Each of the parties hereto further agrees that service of any process, summons, notice or\ndocument by registered mail to its address set forth above shall be effective service of process for any action, suit or proceeding brought against it in\nany Texas Court.\n6.11 Assignment; Binding Effect. Without the prior consent of the other party, neither party may assign its rights or obligations (in the case of\nthe Company, other than by operation of\n12\nlaw) under this letter agreement to any person. This letter agreement shall be binding upon you and your respective successors and permitted assigns\nand shall inure to the benefit of, and be enforceable by, the Company and its respective successors and permitted assigns.\n6.12 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n6.13 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.14 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile or electronic transmission copies, each of which shall be deemed to be an original.\n6.15 Term. Except as otherwise specifically provided herein, this letter agreement shall terminate and be of no further force and effect as of the\ndate that is fifteen (15) months following the date hereof; provided, however, that such termination shall not relieve you from your responsibilities in\nrespect of any breach of this letter agreement prior to such termination.\n(Signature page follows)\n13\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nSPECIAL COMMITTEE OF THE BOARD OF\nDIRECTORS OF EXCO RESOURCES, INC.\nBy: /s/ Vincent Cebula\nName: Vincent Cebula\nTitle: Chairman of the Special Committee\nEXCO RESOURCES, INC.\nBy: /s/ William L. Boeing\nName: William L. Boeing\nTitle: Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nDOUGLAS H. MILLER\nBy: /s/ Douglas H. Miller\nName: Douglas H. Miller
53c8f90cfb5fb49177c9cb160e53f17b.pdf	effective_date jurisdiction party term	EX-99.D.4 13 w01967iexv99wdw4.htm EXHIBIT (D)(4)\nDATAKEY, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nEFFECTIVE DATE: August 3, 2004\nPARTIES:\nSafeNet, Inc (the “Company”)\n4690 Millennium Drive\nBelcamp, MD 21017\nDatakey, Inc. (“Datakey”)\n407 West Travelers Trail\nBurnsville, MN 55337-2558\nRECITALS:\nA. The Company and Datakey are commencing discussions regarding a potential corporate transaction (the “Transaction”).\nB. In order to facilitate the negotiations regarding such Transaction, each party may disclose to the other party certain information, including\nconfidential information, owned by the disclosing party which the disclosing party is willing to disclose to the other party in reliance on the\nexecution of this Agreement.\nAGREEMENT:\nIn consideration of the covenants contained herein and the disclosure of the confidential information, the parties agree as follows:\n1. Definition of Confidential Information. For purposes of this Agreement, the term “Confidential Information” includes, but is not limited to,\nany information of the disclosing party, whether disclosed orally, in writing, on computer disc or tape or any other method, including any\nformula, pattern, compilation, program, device, method, technique or process that: (i) derives independent economic value, actual or potential,\nfrom not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value\nfrom its disclosure or use, and (ii) is the subject of efforts by the disclosing party that are reasonable under the circumstances to maintain its\nsecrecy. The receiving party acknowledges that such Confidential Information specifically includes, but is not limited to, trade secrets and\ninformation contained in or relating to computer software programs, technical information, know-how, other confidential processes, information\nwhich relates to the disclosing party’s future products, marketing plans or proposals, financial and sales information, subcontractor and employee\nlists, existing, inactive or potential customer lists, and all other customer information. All information which the disclosing party identifies in a\nconspicuous place as being “confidential” or “trade secret” shall be presumed to be Confidential Information, unless such information meets one\nor more of the tests set forth below in subparagraphs a. - d .\nThe term Confidential Information as used in this Agreement shall not include any information:\na. which was in the public domain at the time of disclosure by the disclosing party to the receiving party;\n-1-\nb. which is published or otherwise comes into the public domain after its disclosure to the receiving party through no violation of this\nAgreement by the receiving party;\nc. which is disclosed to the receiving party by a third party not under an obligation of confidence to the disclosing party;\nd. which was already in the possession of the receiving party without restriction and prior to disclosure hereunder;\ne. which, as evidenced by contemporaneous documentation, is developed by the receiving party independently of Confidential\nInformation disclosed by disclosing party and without breach of this Agreement; or\nf. which is required to be disclosed by any law or governmental regulation or produced under order of a court of competent jurisdiction;\nprovided, however, that the receiving party provides the disclosing party written notice of such request or order as soon as reasonably\npracticable so that the disclosing party may attempt to limit such disclosure.\nThis Agreement shall govern disclosure of Confidential information for a period of one year from the date hereof, and the obligations of\nconfidentiality and non-use set forth below shall survive for a period of THREE (3) years from the effective date of this Agreement.\n2. Warranties. The receiving party agrees and warrants to the disclosing party as follows with respect to all Confidential Information received\nor learned by it, regardless whether or not a contract is ultimately executed between the parties:\na. The receiving party will treat as confidential all Confidential Information made available to the receiving party or to any employee,\nagent or representative of the receiving party.\nb. The receiving party shall protect the Confidential Information from unauthorized use or disclosure by using the same degree of care as\nthe receiving party uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care.\nc. The receiving party will maintain the Confidential Information in a secure place and limit access to the Confidential Information to\nthose employees, agents and representatives of the receiving party to whom it is necessary to disclose the Confidential Information in\nfurtherance of the receiving party’s investigations and negotiations regarding the potential acquisition of the disclosing party and from whom\nthe receiving party has received a written agreement in which the employee promises to maintain the confidentiality of and not to wrongfully\nuse the Confidential Information.\nd. The receiving party and its employees, agents and representatives will not copy, disclose to unauthorized parties or use any\nConfidential Information for any purpose other than to further the receiving party’s investigations regarding the potential business\nrelationship with the disclosing party.\ne. If negotiations are terminated and no contract is executed, the receiving party will promptly deliver to the disclosing party all copies of\ndocuments containing Confidential\n-2-\nInformation disclosed to the receiving party, whether or not such documents were prepared by the disclosing party.\nf. The receiving party assumes all liability for any breach of the terms of this Agreement by it or any of its employees, agents or\nrepresentatives.\ng. The receiving party will use Confidential Information solely for the purpose of discussing and evaluating the Transaction, and for no\nother purpose.\n3. No License. Nothing contained in this Agreement shall be construed as creating any licenses to use the Confidential Information or other\nintellectual property of the disclosing party except as expressly stated in this Agreement.\n4. Each party understands that each party is a publicly-held company and that all or part of each party’s Confidential Information may\nconstitute material non-public information under the United States securities laws, and each party acknowledges that it is aware that the United\nStates securities laws prohibit any person who is in the possession of material non-public information about a company from purchasing or\nselling that company’s securities in reliance upon such information or from communicating such information to any other person or entity under\ncircumstances in which it is reasonably foreseeable that such person or entity is likely to purchase or sell such securities in reliance upon such\ninformation. Each party represents that, as of the date of this agreement, neither party nor its controlled affiliates, nor anyone acting on its or their\nbehalf in connection with the Transaction, has acquired record or beneficial ownership of any voting securities of the other party or of any\nsecurities convertible or exchangeable into or exercisable for voting securities of the other party, and each Party agrees that neither it, nor any of\nits directors, officers or employees who have been provided with the Confidential Information will perform any purchase, sale or other transfer of\nany of the securities of the other party in violation of United States securities laws.\n5. Nonsolicitation of Employees. The receiving party agrees for a period of one year (a) from end of discussions between the parties if no\nwritten agreement is ultimately entered into between the parties, or (b) from the expiration or termination of the written agreement ultimately\nentered into between the parties, to refrain from directly soliciting or seeking to hire any employee of the disclosing party about whom receiving\nparty received Confidential Information hereunder. Nothing herein shall prohibit either party from hiring or seeking to hire any employee of\ndisclosing party who independently responds to a general advertisement placed by the receiving party; provided that such receiving party does\nnot have any contact or conversations with such employee relating to such advertisement or employment prior to his or her response to such\nadvertisement.\n6. Remedy Upon Violation. The receiving party agrees and understands that any unauthorized use or disclosure of the Confidential\nInformation or improper solicitation of the disclosing party’s employees shall cause substantial harm to the disclosing party and that the\ndisclosing party would not have an adequate remedy at law for such breach of the terms of this Agreement by the receiving party or any of the\ndisclosing party’s employees, agents or representatives. The receiving party agrees that the disclosing party shall be entitled to an injunction with\nthe posting of the minimum allowable bond, enjoining or restraining the receiving party from any violation or violations of this Agreement and\nthe receiving party hereby consents to the issuance of such injunction. The disclosing party’s rights to such equitable remedies shall be in\naddition to all other rights or remedies which the disclosing party may have under this Agreement or under applicable law.\n7. Binding Effect. The failure of the parties to enter into a contractual arrangement or the return by the receiving party of documents\ncontaining Confidential Information in accordance with Paragraph 2(e) shall not relieve the receiving party of its obligations under this\nAgreement. This\n-3-\nAgreement shall be binding upon and inure to the benefit of the parties, their respective successors and assigns. Neither this Agreement nor the\ndisclosure or receipt of Confidential Information shall constitute or imply a commitment by either party with respect to the Transaction, present\nor future business agreements, or any other subject matter not expressly set forth herein.\n8. Modification and Waiver. No purported amendment, modification or waiver of any provision of this Agreement shall be binding unless set\nforth in a written document signed by all parties (in the case of amendments and modifications) or by the party to be charged thereby (in the case\nof waivers). Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall be deemed\nto be a waiver or any other term of this Agreement or of the same circumstance or event upon any recurrence thereof.\n9. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without application\nof its conflict of laws provisions.\nThe parties have caused this Agreement to be executed in a manner appropriate to each to be effective as of the date set forth on the first page\nof this Agreement.\nDATAKEY, INC.\nSafeNet, Inc.\n(“Datakey”)\n(the “Company”)\nBy\n/s/ David A. Feste\nBy\n/s/ Carole D. Argo\nName David A. Feste\nName\nCarole D. Argo\nIts\nChief Financial Officer\nIts\nPresident\n-4-	EX-99.D.4 13 w01967iexv99wdw4.htm EXHIBIT (D)(4)\nDATAKEY, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nEFFECTIVE DATE: August 3, 2004\nPARTIES:\nSafeNet, Inc (the “Company”)\n4690 Millennium Drive\nBelcamp, MD 21017\nDatakey, Inc. (“Datakey”)\n407 West Travelers Trail\nBurnsville, MN 55337-2558\nRECITALS:\nA. The Company and Datakey are commencing discussions regarding a potential corporate transaction (the “Transaction”).\nB. In order to facilitate the negotiations regarding such Transaction, each party may disclose to the other party certain information, including\nconfidential information, owned by the disclosing party which the disclosing party is willing to disclose to the other party in reliance on the\nexecution of this Agreement.\nAGREEMENT:\nIn consideration of the covenants contained herein and the disclosure of the confidential information, the parties agree as follows:\n1. Definition of Confidential Information. For purposes of this Agreement, the term “Confidential Information” includes, but is not limited to,\nany information of the disclosing party, whether disclosed orally, in writing, on computer disc or tape or any other method, including any\nformula, pattern, compilation, program, device, method, technique or process that: (i) derives independent economic value, actual or potential,\nfrom not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value\nfrom its disclosure or use, and (ii) is the subject of efforts by the disclosing party that are reasonable under the circumstances to maintain its\nsecrecy. The receiving party acknowledges that such Confidential Information specifically includes, but is not limited to, trade secrets and\ninformation contained in or relating to computer software programs, technical information, know-how, other confidential processes, information\nwhich relates to the disclosing party’s future products, marketing plans or proposals, financial and sales information, subcontractor and employee\nlists, existing, inactive or potential customer lists, and all other customer information. All information which the disclosing party identifies in a\nconspicuous place as being “confidential” or “trade secret” shall be presumed to be Confidential Information, unless such information meets one\nor more of the tests set forth below in subparagraphs a.-d.\nThe term Confidential Information as used in this Agreement shall not include any information:\na. which was in the public domain at the time of disclosure by the disclosing party to the receiving party;\n-1-\nb. which is published or otherwise comes into the public domain after its disclosure to the receiving party through no violation of this\nAgreement by the receiving party;\nc. which is disclosed to the receiving party by a third party not under an obligation of confidence to the disclosing party;\nd. which was already in the possession of the receiving party without restriction and prior to disclosure hereunder;\ne. which, as evidenced by contemporaneous documentation, is developed by the receiving party independently of Confidential\nInformation disclosed by disclosing party and without breach of this Agreement; or\nf. which is required to be disclosed by any law or governmental regulation or produced under order of a court of competent jurisdiction;\nprovided, however, that the receiving party provides the disclosing party written notice of such request or order as soon as reasonably\npracticable so that the disclosing party may attempt to limit such disclosure.\nThis Agreement shall govern disclosure of Confidential information for a period of one year from the date hereof, and the obligations of\nconfidentiality and non-use set forth below shall survive for a period of THREE (3) years from the effective date of this Agreement.\n2. Warranties. The receiving party agrees and warrants to the disclosing party as follows with respect to all Confidential Information received\nor learned by it, regardless whether or not a contract is ultimately executed between the parties:\na. The receiving party will treat as confidential all Confidential Information made available to the receiving party or to any employee,\nagent or representative of the receiving party.\nb. The receiving party shall protect the Confidential Information from unauthorized use or disclosure by using the same degree of care as\nthe receiving party uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care.\nc. The receiving party will maintain the Confidential Information in a secure place and limit access to the Confidential Information to\nthose employees, agents and representatives of the receiving party to whom it is necessary to disclose the Confidential Information in\nfurtherance of the receiving party’s investigations and negotiations regarding the potential acquisition of the disclosing party and from whom\nthe receiving party has received a written agreement in which the employee promises to maintain the confidentiality of and not to wrongfully\nuse the Confidential Information.\nd. The receiving party and its employees, agents and representatives will not copy, disclose to unauthorized parties or use any\nConfidential Information for any purpose other than to further the receiving party’s investigations regarding the potential business\nrelationship with the disclosing party.\ne. If negotiations are terminated and no contract is executed, the receiving party will promptly deliver to the disclosing party all copies of\ndocuments containing Confidential\n-\nInformation disclosed to the receiving party, whether or not such documents were prepared by the disclosing party.\nf. The receiving party assumes all liability for any breach of the terms of this Agreement by it or any of its employees, agents or\nrepresentatives.\ng. The receiving party will use Confidential Information solely for the purpose of discussing and evaluating the Transaction, and for no\nother purpose.\n3. No License. Nothing contained in this Agreement shall be construed as creating any licenses to use the Confidential Information or other\nintellectual property of the disclosing party except as expressly stated in this Agreement.\n4. Each party understands that each party is a publicly-held company and that all or part of each party’s Confidential Information may\nconstitute material non-public information under the United States securities laws, and each party acknowledges that it is aware that the United\nStates securities laws prohibit any person who is in the possession of material non-public information about a company from purchasing or\nselling that company’s securities in reliance upon such information or from communicating such information to any other person or entity under\ncircumstances in which it is reasonably foreseeable that such person or entity is likely to purchase or sell such securities in reliance upon such\ninformation. Each party represents that, as of the date of this agreement, neither party nor its controlled affiliates, nor anyone acting on its or their\nbehalf in connection with the Transaction, has acquired record or beneficial ownership of any voting securities of the other party or of any\nsecurities convertible or exchangeable into or exercisable for voting securities of the other party, and each Party agrees that neither it, nor any of\nits directors, officers or employees who have been provided with the Confidential Information will perform any purchase, sale or other transfer of\nany of the securities of the other party in violation of United States securities laws.\n5. Nonsolicitation of Employees. The receiving party agrees for a period of one year (a) from end of discussions between the parties if no\nwritten agreement is ultimately entered into between the parties, or (b) from the expiration or termination of the written agreement ultimately\nentered into between the parties, to refrain from directly soliciting or seeking to hire any employee of the disclosing party about whom receiving\nparty received Confidential Information hereunder. Nothing herein shall prohibit either party from hiring or seeking to hire any employee of\ndisclosing party who independently responds to a general advertisement placed by the receiving party; provided that such receiving party does\nnot have any contact or conversations with such employee relating to such advertisement or employment prior to his or her response to such\nadvertisement.\n6. Remedy Upon Violation. The receiving party agrees and understands that any unauthorized use or disclosure of the Confidential\nInformation or improper solicitation of the disclosing party’s employees shall cause substantial harm to the disclosing party and that the\ndisclosing party would not have an adequate remedy at law for such breach of the terms of this Agreement by the receiving party or any of the\ndisclosing party’s employees, agents or representatives. The receiving party agrees that the disclosing party shall be entitled to an injunction with\nthe posting of the minimum allowable bond, enjoining or restraining the receiving party from any violation or violations of this Agreement and\nthe receiving party hereby consents to the issuance of such injunction. The disclosing party’s rights to such equitable remedies shall be in\naddition to all other rights or remedies which the disclosing party may have under this Agreement or under applicable law.\n7. Binding Effect. The failure of the parties to enter into a contractual arrangement or the return by the receiving party of documents\ncontaining Confidential Information in accordance with Paragraph 2(e) shall not relieve the receiving party of its obligations under this\nAgreement. This\n_3-\nAgreement shall be binding upon and inure to the benefit of the parties, their respective successors and assigns. Neither this Agreement nor the\ndisclosure or receipt of Confidential Information shall constitute or imply a commitment by either party with respect to the Transaction, present\nor future business agreements, or any other subject matter not expressly set forth herein.\n8. Modification and Waiver. No purported amendment, modification or waiver of any provision of this Agreement shall be binding unless set\nforth in a written document signed by all parties (in the case of amendments and modifications) or by the party to be charged thereby (in the case\nof waivers). Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall be deemed\nto be a waiver or any other term of this Agreement or of the same circumstance or event upon any recurrence thereof.\n9. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without application\nof its conflict of laws provisions.\nThe parties have caused this Agreement to be executed in a manner appropriate to each to be effective as of the date set forth on the first page\nof this Agreement.\nDATAKEY, INC. SafeNet, Inc.\n(“Datakey™) (the “Company™)\nBy /s/ David A. Feste By /s/ Carole D. Argo\nName  David A. Feste Name Carole D. Argo\nIts Chief Financial Officer Its President	EX-99.D.4 13 w01967iexv99wdw4.htm EXHIBIT (D)(4)\nDATAKEY, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nEFFECTIVE DATE: August 3, 2004\nPARTIES:\nSafeNet, Inc (the "Company")\n4690 Millennium Drive\nBelcamp, MD 21017\nDatakey, Inc. ("Datakey")\n407 West Travelers Trail\nBurnsville, MN 55337-2558\nRECITALS:\nA. The Company and Datakey are commencing discussions regarding a potential corporate transaction (the "Transaction").\nB. In order to facilitate the negotiations regarding such Transaction, each party may disclose to the other party certain information, including\nconfidential information, owned by the disclosing party which the disclosing party is willing to disclose to the other party in reliance on the\nexecution of this Agreement.\nAGREEMENT:\nIn consideration of the covenants contained herein and the disclosure of the confidentia information, the parties agree as follows:\n1.\nDefinition of Confidential Information. For purposes of this Agreement, the term "Confidential Information" includes, but is not limited to,\nany information of the disclosing party, whether disclosed orally, in writing, on computer disc or tape or any other method, including any\nformula, pattern, compilation, program, device, method, technique or process that: (i) derives independent economic value, actual or potential,\nfrom not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value\nfrom its disclosure or use, and (ii) is the subject of efforts by the disclosing party that are reasonable under the circumstances to maintain its\nsecrecy. The receiving party acknowledges that such Confidential Information specifically includes, but is not limited to, trade secrets and\ninformation contained in or relating to computer software programs, technical information, know-how, other confidential processes, information\nwhich relates to the disclosing party's future products, marketing plans or proposals, financial and sales information, subcontractor and employee\nlists,\nexisting, inactive or potential customer lists, and all other customer information. All information which the disclosing party identifies in\na\nconspicuous place as being "confidential" or "trade secret" shall be presumed to be Confidential Information, unless such information meets one\nor more of the tests set forth below in subparagraphs a.-d.\nThe term Confidential Information as used in this Agreement shall not include any information:\na. which was in the public domain at the time of disclosure by the disclosing party to the receiving party;\n-1-\nb. which is published or otherwise comes into the public domain after its disclosure to the receiving party through no violation of this\nAgreement by the receiving party;\nC. which is disclosed to the receiving party by a third party not under an obligation of confidence to the disclosing party;\nd. which was already in the possession of the receiving party without restriction and prior to disclosure hereunder;\ne. which, as evidenced by contemporaneous documentation, is developed by the receiving party independently of Confidential\nInformation disclosed by disclosing party and without breach of this Agreement; or\nf. which is required to be disclosed by any law or governmental regulation or produced under order of a court of competent jurisdiction;\nprovided, however, that the receiving party provides the disclosing party written notice of such request or order as soon as reasonably\npracticable so that the disclosing party may attempt to limit such disclosure.\nThis\nAgreement shall govern disclosure of Confidential information for a period of one year from the date hereof, and the obligations of\nconfidentiality and non-use set forth below shall survive for a period of THREE (3) years from the effective date of this Agreement.\n2. Warranties. The receiving party agrees and warrants to the disclosing party as follows with respect to all Confidential Information received\nor learned by it, regardless whether or not a contract is ultimately executed between the parties:\na. The receiving party will treat as confidential all Confidential Information made available to the receiving party or to any employee,\nagent or representative of the receiving party.\nb. The receiving party shall protect the Confidential Information from unauthorized use or disclosure by using the same degree of care as\nthe receiving party uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care.\nC. The receiving party will maintain the Confidential Information in a secure place and limit access to the Confidential Information to\nthose employees, agents and representatives of the receiving party to whom it is necessary to disclose the Confidential Information in\nfurtherance of the receiving party's investigations and negotiations regarding the potential acquisition of the disclosing party and from whom\nthe receiving party has received a written agreement in which the employee promises to maintain the confidentiality of and not to wrongfully\nuse the Confidential Information.\nd. The receiving party and its employees, agents and representatives will not copy, disclose to unauthorized parties or use any\nConfidential Information for any purpose other than to further the receiving party's investigations regarding the potential business\nrelationship with the disclosing party.\ne. If negotiations are terminated and no contract is executed, the receiving party will promptly deliver to the disclosing party all copies of\ndocuments containing Confidential\n-2-\nInformation disclosed to the receiving party, whether or not such documents were prepared by the disclosing party.\nf. The receiving party assumes all liability for any breach of the terms of this Agreement by it or any of its employees, agents or\nrepresentatives.\ng. The receiving party will use Confidential Information solely for the purpose of discussing and evaluating the Transaction, and for no\nother purpose.\n3. No License. Nothing contained in this Agreement shall be construed as creating any licenses to use the Confidential Information or other\nintellectual property of the disclosing party except as expressly stated in this Agreement.\n4. Each party understands that each party is a publicly-held company and that all or part of each party's Confidential Information may\nconstitute material non-public information under the United States securities laws, and each party acknowledges that it is aware that the United\nStates securities laws prohibit any person who is in the possession of material non-public information about a company from purchasing or\nselling that company's securities in reliance upon such information or from communicating such information to any other person or entity under\ncircumstances in which it is reasonably foreseeable that such person or entity is likely to purchase or sell such securities in reliance upon such\ninformation. Each party represents that, as of the date of this agreement, neither party nor its controlled affiliates, nor anyone acting on its or their\nbehalf in connection with the Transaction, has acquired record or beneficial ownership of any voting securities of the other party or of any\nsecurities convertible or exchangeable into or exercisable for voting securities of the other party, and each Party agrees that neither it, nor any of\nits directors, officers or employees who have been provided with the Confidential Information will perform any purchase, sale or other transfer of\nany of the securities of the other party in violation of United States securities laws.\n5. Nonsolicitation of Employees. The receiving party agrees for a period of one year (a) from end of discussions between the parties if no\nwritten agreement is ultimately entered into between the parties, or (b) from the expiration or termination of the written agreement ultimately\nentered into between the parties, to refrain from directly soliciting or seeking to hire any employee of the disclosing party about whom receiving\nparty received Confidential Information hereunder. Nothing herein shall prohibit either party from hiring or seeking to hire any employee of\ndisclosing party who independently responds to a general advertisement placed by the receiving party; provided that such receiving party does\nnot have any contact or conversations with such employee relating to such advertisement or employment prior to his or her response to such\nadvertisement.\n6. Remedy Upon Violation. The receiving party agrees and understands that any unauthorized use or disclosure of the Confidential\nInformation or improper solicitation of the disclosing party's employees shall cause substantial harm to the disclosing party and that the\ndisclosing party would not have an adequate remedy at law for such breach of the terms of this Agreement by the receiving party or any of\nthe\ndisclosing party's employees, agents or representatives. The receiving party agrees that the disclosing party shall be entitled to an injunction with\nthe posting of the minimum allowable bond, enjoining or restraining the receiving party from any violation or violations of this Agreement and\nthe receiving party hereby consents to the issuance of such injunction. The disclosing party's rights to such equitable remedies shall be in\naddition to all other rights or remedies which the disclosing party may have under this Agreement or under applicable law.\n7. Binding Effect. The failure of the parties to enter into a contractual arrangement or the return by the receiving party of documents\ncontaining Confidential Information in accordance with Paragraph 2(e) shall not relieve the receiving party of its obligations under this\nAgreement. This\n-3-\nAgreement shall be binding upon and inure to the benefit of the parties, their respective successors and assigns. Neither this Agreement nor the\ndisclosure or receipt of Confidential Information shall constitute or imply a commitment by either party with respect to the Transaction, present\nor future business agreements, or any other subject matter not expressly set forth herein.\n8. Modification and Waiver. No purported amendment, modification or waiver of any provision of this Agreement shall be binding unless set\nforth in a written document signed by all parties (in the case of amendments and modifications) or by the party to be charged thereby (in the case\nof waivers). Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall be deemed\nto be a waiver or any other term of this Agreement or of the same circumstance or event upon any recurrence thereof.\n9. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without application\nof its conflict of laws provisions.\nThe parties have caused this Agreement to be executed in a manner appropriate to each to be effective as of the date set forth on the first page\nof this Agreement.\nDATAKEY, INC.\nSafeNet, Inc.\n("Datakey")\n(the "Company")\nBy\n/s/ David A. Feste\nBy\n/s/ Carole D. Argo\nName\nDavid A. Feste\nName\nCarole D. Argo\nIts\nChief Financial Officer\nIts\nPresident\n-4-	EX-99.D.4 13 w01967iexv99wdw4.htm EXHIBIT (D)(4)\nDATAKEY, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nEFFECTIVE DATE: August 3, 2004\nPARTIES:\nSafeNet, Inc (the “Company”)\n4690 Millennium Drive\nBelcamp, MD 21017\nDatakey, Inc. (“Datakey”)\n407 West Travelers Trail\nBurnsville, MN 55337-2558\nRECITALS:\nA. The Company and Datakey are commencing discussions regarding a potential corporate transaction (the “Transaction”).\nB. In order to facilitate the negotiations regarding such Transaction, each party may disclose to the other party certain information, including\nconfidential information, owned by the disclosing party which the disclosing party is willing to disclose to the other party in reliance on the\nexecution of this Agreement.\nAGREEMENT:\nIn consideration of the covenants contained herein and the disclosure of the confidential information, the parties agree as follows:\n1. Definition of Confidential Information. For purposes of this Agreement, the term “Confidential Information” includes, but is not limited to,\nany information of the disclosing party, whether disclosed orally, in writing, on computer disc or tape or any other method, including any\nformula, pattern, compilation, program, device, method, technique or process that: (i) derives independent economic value, actual or potential,\nfrom not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value\nfrom its disclosure or use, and (ii) is the subject of efforts by the disclosing party that are reasonable under the circumstances to maintain its\nsecrecy. The receiving party acknowledges that such Confidential Information specifically includes, but is not limited to, trade secrets and\ninformation contained in or relating to computer software programs, technical information, know-how, other confidential processes, information\nwhich relates to the disclosing party’s future products, marketing plans or proposals, financial and sales information, subcontractor and employee\nlists, existing, inactive or potential customer lists, and all other customer information. All information which the disclosing party identifies in a\nconspicuous place as being “confidential” or “trade secret” shall be presumed to be Confidential Information, unless such information meets one\nor more of the tests set forth below in subparagraphs a. - d .\nThe term Confidential Information as used in this Agreement shall not include any information:\na. which was in the public domain at the time of disclosure by the disclosing party to the receiving party;\n-1-\nb. which is published or otherwise comes into the public domain after its disclosure to the receiving party through no violation of this\nAgreement by the receiving party;\nc. which is disclosed to the receiving party by a third party not under an obligation of confidence to the disclosing party;\nd. which was already in the possession of the receiving party without restriction and prior to disclosure hereunder;\ne. which, as evidenced by contemporaneous documentation, is developed by the receiving party independently of Confidential\nInformation disclosed by disclosing party and without breach of this Agreement; or\nf. which is required to be disclosed by any law or governmental regulation or produced under order of a court of competent jurisdiction;\nprovided, however, that the receiving party provides the disclosing party written notice of such request or order as soon as reasonably\npracticable so that the disclosing party may attempt to limit such disclosure.\nThis Agreement shall govern disclosure of Confidential information for a period of one year from the date hereof, and the obligations of\nconfidentiality and non-use set forth below shall survive for a period of THREE (3) years from the effective date of this Agreement.\n2. Warranties. The receiving party agrees and warrants to the disclosing party as follows with respect to all Confidential Information received\nor learned by it, regardless whether or not a contract is ultimately executed between the parties:\na. The receiving party will treat as confidential all Confidential Information made available to the receiving party or to any employee,\nagent or representative of the receiving party.\nb. The receiving party shall protect the Confidential Information from unauthorized use or disclosure by using the same degree of care as\nthe receiving party uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care.\nc. The receiving party will maintain the Confidential Information in a secure place and limit access to the Confidential Information to\nthose employees, agents and representatives of the receiving party to whom it is necessary to disclose the Confidential Information in\nfurtherance of the receiving party’s investigations and negotiations regarding the potential acquisition of the disclosing party and from whom\nthe receiving party has received a written agreement in which the employee promises to maintain the confidentiality of and not to wrongfully\nuse the Confidential Information.\nd. The receiving party and its employees, agents and representatives will not copy, disclose to unauthorized parties or use any\nConfidential Information for any purpose other than to further the receiving party’s investigations regarding the potential business\nrelationship with the disclosing party.\ne. If negotiations are terminated and no contract is executed, the receiving party will promptly deliver to the disclosing party all copies of\ndocuments containing Confidential\n-2-\nInformation disclosed to the receiving party, whether or not such documents were prepared by the disclosing party.\nf. The receiving party assumes all liability for any breach of the terms of this Agreement by it or any of its employees, agents or\nrepresentatives.\ng. The receiving party will use Confidential Information solely for the purpose of discussing and evaluating the Transaction, and for no\nother purpose.\n3. No License. Nothing contained in this Agreement shall be construed as creating any licenses to use the Confidential Information or other\nintellectual property of the disclosing party except as expressly stated in this Agreement.\n4. Each party understands that each party is a publicly-held company and that all or part of each party’s Confidential Information may\nconstitute material non-public information under the United States securities laws, and each party acknowledges that it is aware that the United\nStates securities laws prohibit any person who is in the possession of material non-public information about a company from purchasing or\nselling that company’s securities in reliance upon such information or from communicating such information to any other person or entity under\ncircumstances in which it is reasonably foreseeable that such person or entity is likely to purchase or sell such securities in reliance upon such\ninformation. Each party represents that, as of the date of this agreement, neither party nor its controlled affiliates, nor anyone acting on its or their\nbehalf in connection with the Transaction, has acquired record or beneficial ownership of any voting securities of the other party or of any\nsecurities convertible or exchangeable into or exercisable for voting securities of the other party, and each Party agrees that neither it, nor any of\nits directors, officers or employees who have been provided with the Confidential Information will perform any purchase, sale or other transfer of\nany of the securities of the other party in violation of United States securities laws.\n5. Nonsolicitation of Employees. The receiving party agrees for a period of one year (a) from end of discussions between the parties if no\nwritten agreement is ultimately entered into between the parties, or (b) from the expiration or termination of the written agreement ultimately\nentered into between the parties, to refrain from directly soliciting or seeking to hire any employee of the disclosing party about whom receiving\nparty received Confidential Information hereunder. Nothing herein shall prohibit either party from hiring or seeking to hire any employee of\ndisclosing party who independently responds to a general advertisement placed by the receiving party; provided that such receiving party does\nnot have any contact or conversations with such employee relating to such advertisement or employment prior to his or her response to such\nadvertisement.\n6. Remedy Upon Violation. The receiving party agrees and understands that any unauthorized use or disclosure of the Confidential\nInformation or improper solicitation of the disclosing party’s employees shall cause substantial harm to the disclosing party and that the\ndisclosing party would not have an adequate remedy at law for such breach of the terms of this Agreement by the receiving party or any of the\ndisclosing party’s employees, agents or representatives. The receiving party agrees that the disclosing party shall be entitled to an injunction with\nthe posting of the minimum allowable bond, enjoining or restraining the receiving party from any violation or violations of this Agreement and\nthe receiving party hereby consents to the issuance of such injunction. The disclosing party’s rights to such equitable remedies shall be in\naddition to all other rights or remedies which the disclosing party may have under this Agreement or under applicable law.\n7. Binding Effect. The failure of the parties to enter into a contractual arrangement or the return by the receiving party of documents\ncontaining Confidential Information in accordance with Paragraph 2(e) shall not relieve the receiving party of its obligations under this\nAgreement. This\n-3-\nAgreement shall be binding upon and inure to the benefit of the parties, their respective successors and assigns. Neither this Agreement nor the\ndisclosure or receipt of Confidential Information shall constitute or imply a commitment by either party with respect to the Transaction, present\nor future business agreements, or any other subject matter not expressly set forth herein.\n8. Modification and Waiver. No purported amendment, modification or waiver of any provision of this Agreement shall be binding unless set\nforth in a written document signed by all parties (in the case of amendments and modifications) or by the party to be charged thereby (in the case\nof waivers). Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall be deemed\nto be a waiver or any other term of this Agreement or of the same circumstance or event upon any recurrence thereof.\n9. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without application\nof its conflict of laws provisions.\nThe parties have caused this Agreement to be executed in a manner appropriate to each to be effective as of the date set forth on the first page\nof this Agreement.\nDATAKEY, INC.\nSafeNet, Inc.\n(“Datakey”)\n(the “Company”)\nBy\n/s/ David A. Feste\nBy\n/s/ Carole D. Argo\nName David A. Feste\nName\nCarole D. Argo\nIts\nChief Financial Officer\nIts\nPresident\n-4-
55f15a568c73cf6dc329af7786012d7e.pdf	effective_date jurisdiction party term	EX-10.2 3 d234488dex102.htm FORM OF EMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT\nAGREEMENT\nExhibit 10.2\nDelcath Systems, Inc.\nEMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nAGREEMENT (“Agreement”) made this\nday of\n20 , between Delcath Systems, Inc., and its predecessors,\ndivisions, affiliates, successors, and assigns (the “Company”), and\n, residing at\n(“Employee”).\nWHEREAS, the Company wishes to obtain reasonable protection of its confidential business and technical information which it has\ndeveloped, acquired and/or is or may be developed or acquired by the Company at substantial expenses, and\nWHEREAS, the Company wishes to obtain reasonable protection against unfair competition during the Employees employment by the\nCompany and following termination of the Employee’s employment by the Company and to further protect against unfair use of its confidential\nbusiness and technical information the Company desires to have Employee execute this Agreement, and\nWHEREAS, the Employee is willing to execute this Agreement and grant the Company the benefits of the restrictive covenants contained\nherein.\nFor and in consideration of the continued employment of Employee by the Company and compensation and benefits paid to Employee and\nhereafter to be paid to Employee by the Company, Employee agrees as follows:\n1. NO PRIOR CONFLICTING CONTRACTS .\nEmployee represents that Employee’s employment or potential employment by the Company is not in violation of any contract or covenants to\nwhich Employee is a party with any employer, entity, or person. Employee agrees not to use or disclose in Employee’s work with the Company any\nsecret or confidential information of others, including prior employers, unless such information is rightfully possessed by the Company.\n2. DEFINITIONS\n(a) Confidential Information. For purposes of this Agreement, the term “Confidential Information” means information that is not\ngenerally known to the public and that is used, developed, or obtained by the Company in connection with its business, including, but not limited to,\ninformation, observations, and data obtained by Employee while employed by the Company thereof concerning (i) the business or affairs of the\nCompany, (ii) products or services, (iii) fees, costs, compensation, and pricing structures, (iv) designs, (v) specifications (including, but not limited\nto, supplier specifications); (vi) clinical trial data; (vii) analyses, (viii) drawings, photographs and reports, (ix) computer software, including\noperating systems, applications, and program listings, (x) flow charts, manuals, and documentation, (xi) data or data bases, (xii) accounting and\nbusiness methods, (xiii) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not\nreduced to practice, (xiv)\ncustomers and clients and customer or client lists, (xv) other copyrightable works, (xvi) all production methods, processes, technology, and trade\nsecrets, and (xvii) all similar and related information in whatever form. Confidential Information will not include any information that has been\npublished (other than a disclosure by Employee in breach of this Agreement) in a form generally available to the public prior to the date Employee\nproposes to disclose or use such information. Confidential Information will not be deemed to have been published merely because individual\nportions of the information have been separately published, but only if all material features comprising such information have been published in\ncombination.\n(b) Work Product. For purposes of this Agreement, the term “Work Product” means all inventions, innovations, improvements, technical\ninformation, systems, software developments, discoveries, methods, designs, processes, analyses, drawings, reports, service marks, trademarks, trade\nnames, logos, and all similar or related information (whether patentable or unpatentable, copyrightable, registerable as a trademark, reduced to\nwriting, or otherwise) that relates to the Company’s actual or anticipated business, research and development, or existing or future products or\nservices and which are conceived, developed, or made by Employee (whether or not during usual business hours, whether or not by the use of the\nfacilities of the Company, and whether or not alone or in conjunction with any other person) while employed by the Company (including those\nconceived, developed, or made prior to the effective date of this Agreement) together with all patent applications, letters patent, trademark, trade\nname and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing.\n3. CONFIDENTIALITY REQUIREMENTS.\n(a) Employee acknowledges and agrees that, as a result of the nature of the Company’s business and the nature of Employee’s position\nwith the Company, Employee has been or will come into contact with, and will have access to, Confidential Information belonging to the Company.\nEmployee acknowledges that the aforementioned Confidential Information is unique and not generally known to the public with respect to the\nCompany and has been developed, acquired, and compiled by the Company at its great effort and expense.\n(b) Employee further acknowledges and agrees that any disclosure or use of the Company’s Confidential Information by Employee,\nother than in connection with the Company’s business or as specifically authorized by the Company, will be or may become highly detrimental to the\nbusiness of the Company, and serious loss of business and damage to the Company will or may result.\n(c) Accordingly, Employee agrees to hold all Confidential Information in the strictest confidence and agrees to safeguard and not use,\ndisclose, divulge or reveal the Company’s Confidential Information to any person, either during Employee’s employment or at any time after the\ntermination of Employee’s employment with the Company, without specific prior written authorization from an executive officer of the Company. If\nEmployee is an executive officer of the Company, Employee must obtain prior written authorization from the Chief Executive Officer.\n(d) Employee further agrees to promptly deliver to the Company, upon the termination of Employee’s employment with the Company, or\nat any other time as the Company\n2\nmay so request, all Company property, including but not limited to laptops, personal digital assistants (PDAs), and cell phones, and all\ndocumentation, memoranda, notes, customer lists, records, reports, blueprints, software, drawings, computer disks, programs, and any other\ndocuments (and all copies thereof) containing Confidential Information or relating to the Company’s business and any property associated therewith,\nwhich Employee may then possess or have under Employee’s control.\n4. WORK PRODUCT REQUIREMENTS.\n(a) All Work Product that Employee may have conceived, developed, made, discovered, invented or originated during his/her\nemployment by the Company prior to the Effective Date, during Employee’s employment with the Company, or at any time in the period of twelve\n(12) months after termination of Employee’s employment, shall be deemed work for hire and shall be the exclusive property of the Company, as\napplicable. Employee hereby assigns all of Employee’s right, title, and interest in and to such Work Product to the Company, including all\nintellectual property rights therein.\n(b) Employee shall promptly disclose all Work Product to the Company, shall execute at the request of the Company any assignments or\nother documents the Company may deem necessary to protect or perfect its rights therein, and shall assist the Company, at the Company’s expense,\nin obtaining, defending, and enforcing the Company’s rights therein. Employee hereby appoints the Company as Employee’s attorney-in-fact to\nexecute on Employee’s behalf any assignments or other documents deemed necessary by the Company to protect or perfect the Company’s rights to\nany Work Product.\n5. NON-COMPETITION.\n(a) Employee acknowledges and agrees that the Company has invested and will invest substantial time, effort, resources and finances in\nthe research, development and commercialization of the Company’s product(s) and is engaged in a highly competitive business and that, by virtue of\nthe position in which Employee is employed, he or she will help create and will be given access to Confidential Information. If the Employee\nengages in any business that is competitive with the Company it will cause great and irreparable harm to the Company, the monetary loss from\nwhich would be difficult, if not impossible, to measure.\n(b) Consequently, Employee covenants and agrees that so long as Employee is employed by the Company, and for a period of one\n(1) year following termination of Employee’s employment with the Company, whether such termination is voluntary or involuntary, Employee will\nnot, directly or indirectly (whether as an individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales\nrepresentative, officer, director or shareholder of any entity or otherwise), engage in, enter the employ of, render any services to, have any ownership\ninterest in, nor participate in the financing, operation, management or control of, any Competing Business, or in any manner compete with the\nCompany, in any country in which the Company does business, without the Company’s specific written consent to do so. “Competing Business”\nshall mean any enterprise, activity, or business that competes with the Company in any of its or their material businesses, including, without\nlimitation, the research, design, development, identification, manufacture, marketing, or sales of targeted regional cancer or infectious disease drug\ndelivery systems.\n3\nThe restrictions contained in this section shall not prevent Employee from accepting employment with a large diversified organization with separate\nand distinct divisions that do not compete, directly or indirectly, with the Company, as long as prior to accepting such employment the Company\nreceives separate written assurances from the prospective employer and from Employee, satisfactory to the Company, to the effect that Employee\nwill not render any services, directly or indirectly, to any division or business unit that competes, directly or indirectly, with the Company. During the\nrestrictive period set forth in this section, Employee will inform any new employer, prior to accepting employment, of the existence of this\nAgreement and provide such employer with a copy of this Agreement.\nNothing in this Agreement shall be construed to prevent or otherwise restrict or limit the Employee from owning shares and investing (as a passive\ninvestor), directly or indirectly, in the stock of any publicly traded competing corporation whose shares are listed on a national securities exchange or\ntraded in the over-the-counter market, but only if Employee does not own more than an aggregate of one percent (1%) of the outstanding stock of\nsuch corporation.\n6. NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES.\n(a) Employee acknowledges and agrees that, during the course of Employee’s employment by the Company, Employee may come into\ncontact with and become aware of some, most, or all of the Company’s customers and employees, past, present, and prospective, and their names\nand addresses, as well as other information about the customers and employees not publicly available. Employee further acknowledges and agrees\nthat the loss of such customers and employees may cause the Company great and irreparable harm.\n(b) Consequently, Employee covenants and agrees that, if Employee’s employment with the Company terminates, whether such\ntermination is voluntary or involuntary, Employee will not, for a period of one (1) year following such termination, directly or indirectly (whether as\nan individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales representative, officer, director or\nshareholder of any entity or otherwise), solicit or attempt to solicit to do business that would compete with the Company in any of its or their\nmaterial businesses, including, without limitation, the research, design, development, identification, manufacture, marketing, or sales of targeted\nregional cancer or infectious disease drug delivery systems.\n(c) Employee also agrees that, for a period of one (1) year following termination of Employee’s employment with the Company, whether\nsuch termination is voluntary or involuntary, Employee will not, directly or indirectly (whether as an individual for Employee’s own account, or as a\npartner, joint venturer, employee, agent, consultant or sales representative, officer, director or shareholder of any entity or otherwise), solicit or\nattempt to solicit any then current employee of the Company to leave employee’s employment with the Company to become employed by any\nperson, firm, corporation, or other entity.\n7. ENFORCEMENT OF COVENANTS.\n(a) Employee acknowledges that a breach by Employee of any of the terms of this Agreement will result in material, irreparable injury to\nthe Company for which any remedy at law will not be adequate. Moreover, it will not be possible to measure damages for such\n4\ninjuries precisely and, in the event of such a breach or threat of breach, the Company shall be entitled to obtain a temporary restraining order and/or a\npreliminary or permanent injunction restraining Employee from engaging in activities prohibited by this Agreement, together with such other relief\nas may be required to enforce specifically any of the terms of this Agreement. Employee consents to such temporary, preliminary, or permanent\ninjunctive relief. Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any other available remedies for breach or\nthreatened breach of this Agreement, including recovery of damages, court costs, and attorneys’ fees.\n(b) If the Company is required to enforce any of its rights hereunder through legal proceedings, Employee shall reimburse the Company\nfor all reasonable costs, expenses, and attorneys’ fees incurred by the Company in connection with the enforcement of its rights hereunder.\n(c) Employee understands and agrees that nothing in this Agreement creates a contract, express or implied, of employment for any\nspecified period. Employee’s employment may be terminated by Employee or the Company at any time and for any reason or no reason, unless\nexpressly limited by a separate writing executed by both the Company and Employee.\n(d) If one or more provisions of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or\nunenforceable, Employee agrees the validity, legality, and enforcement of the remaining provisions of the Agreement shall not in any way be\naffected or impaired. Employee also agrees that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is reasonable in scope\nand that Employee will not raise any issue regarding the reasonableness of the Agreement as a defense in any proceeding to enforce the Agreement.\nIf a court determines that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is not reasonable, the parties agree that the court\nmay modify such provisions to the maximum period of restriction, activities, term, or geographic scope that the court deems reasonable.\n8. WAIVER OF BREACH.\nThe waiver by the Company of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any\nsubsequent breach by Employee, and the failure of the Company to take action against any other employee(s) for similar breach(es) on their part,\nshall not be construed as a waiver of a breach by Employee.\n9. AGREEMENT BINDING .\nThis Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company, and the heirs, executors, and\nadministrators of Employee. The Company shall have the right to transfer and assign all or any portion of its rights and obligations hereunder to any\nthird party.\n10. APPLICABLE LAW AND CHOICE OF FORUM.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties, being desirous of\nhaving any disputes resolved in a forum having a substantial body of law and experience with matters contained herein, and the parties\n5\nhaving a substantial connection with the State of New York, agree that any action or proceeding with respect to this Agreement shall be brought in a\nstate or federal court located within the State of New York. The parties consent to the personal jurisdiction of the state and federal courts of New\nYork should a legal action to enforce this Agreement be necessary.\n11. MODIFICATION.\nThis Agreement may only be modified by the express written consent of both parties.\n12. ENTIRE AGREEMENT .\nThis Agreement constitutes the entire understanding between Company and Employee with respect to the subject matter hereof and supersedes\nand replaces all prior contracts, agreements and understandings related to the same subject matter between the parties.\n13. SECTION HEADINGS\nThe section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or\ndescribe the scope or extent of such section or in any way affect such section.\nI have read and understand this Agreement and I agree to abide by its terms.\n[EMPLOYEE]\nDELCATH SYSTEMS, INC.\n(Signature)\n(Signature)\nDate\nName\nWitness\nTitle\nDate\n6	EX-10.2 3 d234488dex102.htm FORM OF EMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT\nAGREEMENT\nExhibit 10.2\nDelcath Systems, Inc.\nEMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nAGREEMENT (“Agreement”) made this day of 20__, between Delcath Systems, Inc., and its predecessors,\ndivisions, affiliates, successors, and assigns (the “Company”), and , residing at\n(“Employee”).\nWHEREAS, the Company wishes to obtain reasonable protection of its confidential business and technical information which it has\ndeveloped, acquired and/or is or may be developed or acquired by the Company at substantial expenses, and\nWHEREAS, the Company wishes to obtain reasonable protection against unfair competition during the Employees employment by the\nCompany and following termination of the Employee’s employment by the Company and to further protect against unfair use of its confidential\nbusiness and technical information the Company desires to have Employee execute this Agreement, and\nWHEREAS, the Employee is willing to execute this Agreement and grant the Company the benefits of the restrictive covenants contained\nherein.\nFor and in consideration of the continued employment of Employee by the Company and compensation and benefits paid to Employee and\nhereafter to be paid to Employee by the Company, Employee agrees as follows:\n1. NO PRIOR CONFLICTING CONTRACTS.\nEmployee represents that Employee’s employment or potential employment by the Company is not in violation of any contract or covenants to\nwhich Employee is a party with any employer, entity, or person. Employee agrees not to use or disclose in Employee’s work with the Company any\nsecret or confidential information of others, including prior employers, unless such information is rightfully possessed by the Company.\n2. DEFINITIONS\n(a) Confidential Information. For purposes of this Agreement, the term “Confidential Information” means information that is not\ngenerally known to the public and that is used, developed, or obtained by the Company in connection with its business, including, but not limited to,\ninformation, observations, and data obtained by Employee while employed by the Company thereof concerning (i) the business or affairs of the\nCompany, (ii) products or services, (iii) fees, costs, compensation, and pricing structures, (iv) designs, (v) specifications (including, but not limited\nto, supplier specifications); (vi) clinical trial data; (vii) analyses, (viii) drawings, photographs and reports, (ix) computer software, including\noperating systems, applications, and program listings, (x) flow charts, manuals, and documentation, (xi) data or data bases, (xii) accounting and\nbusiness methods, (xiii) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not\nreduced to practice, (xiv)\ncustomers and clients and customer or client lists, (xv) other copyrightable works, (xvi) all production methods, processes, technology, and trade\nsecrets, and (xvii) all similar and related information in whatever form. Confidential Information will not include any information that has been\npublished (other than a disclosure by Employee in breach of this Agreement) in a form generally available to the public prior to the date Employee\nproposes to disclose or use such information. Confidential Information will not be deemed to have been published merely because individual\nportions of the information have been separately published, but only if all material features comprising such information have been published in\ncombination.\n(b) Work Product. For purposes of this Agreement, the term “Work Product” means all inventions, innovations, improvements, technical\ninformation, systems, software developments, discoveries, methods, designs, processes, analyses, drawings, reports, service marks, trademarks, trade\nnames, logos, and all similar or related information (whether patentable or unpatentable, copyrightable, registerable as a trademark, reduced to\nwriting, or otherwise) that relates to the Company’s actual or anticipated business, research and development, or existing or future products or\nservices and which are conceived, developed, or made by Employee (whether or not during usual business hours, whether or not by the use of the\nfacilities of the Company, and whether or not alone or in conjunction with any other person) while employed by the Company (including those\nconceived, developed, or made prior to the effective date of this Agreement) together with all patent applications, letters patent, trademark, trade\nname and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing.\n3. CONFIDENTIALITY REQUIREMENTS.\n(a) Employee acknowledges and agrees that, as a result of the nature of the Company’s business and the nature of Employee’s position\nwith the Company, Employee has been or will come into contact with, and will have access to, Confidential Information belonging to the Company.\nEmployee acknowledges that the aforementioned Confidential Information is unique and not generally known to the public with respect to the\nCompany and has been developed, acquired, and compiled by the Company at its great effort and expense.\n(b) Employee further acknowledges and agrees that any disclosure or use of the Company’s Confidential Information by Employee,\nother than in connection with the Company’s business or as specifically authorized by the Company, will be or may become highly detrimental to the\nbusiness of the Company, and serious loss of business and damage to the Company will or may result.\n(c) Accordingly, Employee agrees to hold all Confidential Information in the strictest confidence and agrees to safeguard and not use,\ndisclose, divulge or reveal the Company’s Confidential Information to any person, either during Employee’s employment or at any time after the\ntermination of Employee’s employment with the Company, without specific prior written authorization from an executive officer of the Company. If\nEmployee is an executive officer of the Company, Employee must obtain prior written authorization from the Chief Executive Officer.\n(d) Employee further agrees to promptly deliver to the Company, upon the termination of Employee’s employment with the Company, or\nat any other time as the Company\nmay so request, all Company property, including but not limited to laptops, personal digital assistants (PDAs), and cell phones, and all\ndocumentation, memoranda, notes, customer lists, records, reports, blueprints, software, drawings, computer disks, programs, and any other\ndocuments (and all copies thereof) containing Confidential Information or relating to the Company’s business and any property associated therewith,\nwhich Employee may then possess or have under Employee’s control.\n4.  WORK PRODUCT REQUIREMENTS.\n(a) All Work Product that Employee may have conceived, developed, made, discovered, invented or originated during his/her\nemployment by the Company prior to the Effective Date, during Employee’s employment with the Company, or at any time in the period of twelve\n(12) months after termination of Employee’s employment, shall be deemed work for hire and shall be the exclusive property of the Company, as\napplicable. Employee hereby assigns all of Employee’s right, title, and interest in and to such Work Product to the Company, including all\nintellectual property rights therein.\n(b) Employee shall promptly disclose all Work Product to the Company, shall execute at the request of the Company any assignments or\nother documents the Company may deem necessary to protect or perfect its rights therein, and shall assist the Company, at the Company’s expense,\nin obtaining, defending, and enforcing the Company’s rights therein. Employee hereby appoints the Company as Employee’s attorney-in-fact to\nexecute on Employee’s behalf any assignments or other documents deemed necessary by the Company to protect or perfect the Company’s rights to\nany Work Product.\n5. NON-COMPETITION.\n(a) Employee acknowledges and agrees that the Company has invested and will invest substantial time, effort, resources and finances in\nthe research, development and commercialization of the Company’s product(s) and is engaged in a highly competitive business and that, by virtue of\nthe position in which Employee is employed, he or she will help create and will be given access to Confidential Information. If the Employee\nengages in any business that is competitive with the Company it will cause great and irreparable harm to the Company, the monetary loss from\nwhich would be difficult, if not impossible, to measure.\n(b) Consequently, Employee covenants and agrees that so long as Employee is employed by the Company, and for a period of one\n(1) year following termination of Employee’s employment with the Company, whether such termination is voluntary or involuntary, Employee will\nnot, directly or indirectly (whether as an individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales\nrepresentative, officer, director or shareholder of any entity or otherwise), engage in, enter the employ of, render any services to, have any ownership\ninterest in, nor participate in the financing, operation, management or control of, any Competing Business, or in any manner compete with the\nCompany, in any country in which the Company does business, without the Company’s specific written consent to do so. “Competing Business”\nshall mean any enterprise, activity, or business that competes with the Company in any of its or their material businesses, including, without\nlimitation, the research, design, development, identification, manufacture, marketing, or sales of targeted regional cancer or infectious disease drug\ndelivery systems.\nThe restrictions contained in this section shall not prevent Employee from accepting employment with a large diversified organization with separate\nand distinct divisions that do not compete, directly or indirectly, with the Company, as long as prior to accepting such employment the Company\nreceives separate written assurances from the prospective employer and from Employee, satisfactory to the Company, to the effect that Employee\nwill not render any services, directly or indirectly, to any division or business unit that competes, directly or indirectly, with the Company. During the\nrestrictive period set forth in this section, Employee will inform any new employer, prior to accepting employment, of the existence of this\nAgreement and provide such employer with a copy of this Agreement.\nNothing in this Agreement shall be construed to prevent or otherwise restrict or limit the Employee from owning shares and investing (as a passive\ninvestor), directly or indirectly, in the stock of any publicly traded competing corporation whose shares are listed on a national securities exchange or\ntraded in the over-the-counter market, but only if Employee does not own more than an aggregate of one percent (1%) of the outstanding stock of\nsuch corporation.\n6. NON-SOLICITATION OF CUSTOMERS AND EMPIL.OYEES.\n(a) Employee acknowledges and agrees that, during the course of Employee’s employment by the Company, Employee may come into\ncontact with and become aware of some, most, or all of the Company’s customers and employees, past, present, and prospective, and their names\nand addresses, as well as other information about the customers and employees not publicly available. Employee further acknowledges and agrees\nthat the loss of such customers and employees may cause the Company great and irreparable harm.\n(b) Consequently, Employee covenants and agrees that, if Employee’s employment with the Company terminates, whether such\ntermination is voluntary or involuntary, Employee will not, for a period of one (1) year following such termination, directly or indirectly (whether as\nan individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales representative, officer, director or\nshareholder of any entity or otherwise), solicit or attempt to solicit to do business that would compete with the Company in any of its or their\nmaterial businesses, including, without limitation, the research, design, development, identification, manufacture, marketing, or sales of targeted\nregional cancer or infectious disease drug delivery systems.\n(c) Employee also agrees that, for a period of one (1) year following termination of Employee’s employment with the Company, whether\nsuch termination is voluntary or involuntary, Employee will not, directly or indirectly (whether as an individual for Employee’s own account, or as a\npartner, joint venturer, employee, agent, consultant or sales representative, officer, director or shareholder of any entity or otherwise), solicit or\nattempt to solicit any then current employee of the Company to leave employee’s employment with the Company to become employed by any\nperson, firm, corporation, or other entity.\n7.  ENFORCEMENT OF COVENANTS.\n(a) Employee acknowledges that a breach by Employee of any of the terms of this Agreement will result in material, irreparable injury to\nthe Company for which any remedy at law will not be adequate. Moreover, it will not be possible to measure damages for such\n4\ninjuries precisely and, in the event of such a breach or threat of breach, the Company shall be entitled to obtain a temporary restraining order and/or a\npreliminary or permanent injunction restraining Employee from engaging in activities prohibited by this Agreement, together with such other relief\nas may be required to enforce specifically any of the terms of this Agreement. Employee consents to such temporary, preliminary, or permanent\ninjunctive relief. Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any other available remedies for breach or\nthreatened breach of this Agreement, including recovery of damages, court costs, and attorneys’ fees.\n(b) If the Company is required to enforce any of its rights hereunder through legal proceedings, Employee shall reimburse the Company\nfor all reasonable costs, expenses, and attorneys’ fees incurred by the Company in connection with the enforcement of its rights hereunder.\n(c) Employee understands and agrees that nothing in this Agreement creates a contract, express or implied, of employment for any\nspecified period. Employee’s employment may be terminated by Employee or the Company at any time and for any reason or no reason, unless\nexpressly limited by a separate writing executed by both the Company and Employee.\n(d) If one or more provisions of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or\nunenforceable, Employee agrees the validity, legality, and enforcement of the remaining provisions of the Agreement shall not in any way be\naffected or impaired. Employee also agrees that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is reasonable in scope\nand that Employee will not raise any issue regarding the reasonableness of the Agreement as a defense in any proceeding to enforce the Agreement.\nIf a court determines that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is not reasonable, the parties agree that the court\nmay modify such provisions to the maximum period of restriction, activities, term, or geographic scope that the court deems reasonable.\n8.  WAIVER OF BREACH.\nThe waiver by the Company of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any\nsubsequent breach by Employee, and the failure of the Company to take action against any other employee(s) for similar breach(es) on their part,\nshall not be construed as a waiver of a breach by Employee.\n9. AGREEMENT BINDING.\nThis Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company, and the heirs, executors, and\nadministrators of Employee. The Company shall have the right to transfer and assign all or any portion of its rights and obligations hereunder to any\nthird party.\n10. APPLICABLE LAW AND CHOICE OF FORUM.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties, being desirous of\nhaving any disputes resolved in a forum having a substantial body of law and experience with matters contained herein, and the parties\n5\nhaving a substantial connection with the State of New York, agree that any action or proceeding with respect to this Agreement shall be brought in a\nstate or federal court located within the State of New York. The parties consent to the personal jurisdiction of the state and federal courts of New\nYork should a legal action to enforce this Agreement be necessary.\n11. MODIFICATION.\nThis Agreement may only be modified by the express written consent of both parties.\n12. ENTIRE AGREEMENT.\nThis Agreement constitutes the entire understanding between Company and Employee with respect to the subject matter hereof and supersedes\nand replaces all prior contracts, agreements and understandings related to the same subject matter between the parties.\n13. SECTION HEADINGS\nThe section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or\ndescribe the scope or extent of such section or in any way affect such section.\nI have read and understand this Agreement and I agree to abide by its terms.\n[EMPLOYEE] DELCATH SYSTEMS, INC.\n(Signature) (Signature)\nDate Name\nWitness Title\nDate	EX-10.2 3 d234488dex102.htm FORM OF EMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT\nAGREEMENT\nExhibit 10.2\nDelcath Systems, Inc.\nEMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nAGREEMENT ("Agreement") made this 20 between Delcath Systems, Inc., and its predecessors,\nday of\ndivisions, affiliates, successors, and assigns (the "Company"), and\nresiding at\n("Employee").\nWHEREAS, the Company wishes to obtain reasonable protection of its confidential business and technical information which it has\ndeveloped, acquired and/or is or may be developed or acquired by the Company at substantial expenses, and\nWHEREAS, the Company wishes to obtain reasonable protection against unfair competition during the Employees employment by the\nCompany and following termination of the Employee's employment by the Company and to further protect against unfair use of its confidential\nbusiness and technical information the Company desires to have Employee execute this Agreement, and\nWHEREAS, the Employee is willing to execute this Agreement and grant the Company the benefits of the restrictive covenants contained\nherein.\nFor and in consideration of the continued employment of Employee by the Company and compensation and benefits paid to Employee and\nhereafter to be paid to Employee by the Company, Employee agrees as follows:\n1.\nNO PRIOR CONFLICTING CONTRACTS.\nEmployee represents that Employee's employment or potential employment by the Company is not in violation of any contract or covenants to\nwhich Employee is a party with any employer, entity, or person. Employee agrees not to use or disclose in Employee's work with the Company any\nsecret or confidential information of others, including prior employers, unless such information is rightfully possessed by the Company.\n2. DEFINITIONS\n(a) Confidential Information. For purposes of this Agreement, the term "Confidential Information" means information that is not\ngenerally known to the public and that is used, developed, or obtained by the Company in connection with its business, including, but not limited to,\ninformation, observations, and data obtained by Employee while employed by the Company thereof concerning (i) the business or affairs of the\nCompany, (ii) products or services, (iii) fees, costs, compensation, and pricing structures, (iv) designs, (v) specifications (including, but not limited\nto, supplier specifications); (vi) clinical trial data; (vii) analyses, (viii) drawings, photographs and reports, (ix) computer software, including\noperating systems, applications, and program listings, (x) flow charts, manuals, and documentation, (xi) data or data bases, (xii) accounting and\nbusiness methods, (xiii) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not\nreduced to practice, (xiv)\ncustomers and clients and customer or client lists, (xv) other copyrightable works, (xvi) all production methods, processes, technology, and trade\nsecrets, and (xvii) all similar and related information in whatever form. Confidential Information will not include any information that has been\npublished (other than a disclosure by Employee in breach of this Agreement) in a form generally available to the public prior to the date Employee\nproposes to disclose or use such information. Confidential Information will not be deemed to have been published merely because individual\nportions of the information have been separately published, but only if all material features comprising such information have been published in\ncombination.\n(b) Work Product. For purposes of this Agreement, the term "Work Product" means all inventions, innovations, improvements, technical\ninformation, systems, software developments, discoveries, methods, designs, processes, analyses, drawings, reports, service marks, trademarks, trade\nnames, logos, and all similar or related information (whether patentable or unpatentable, copyrightable, registerable as a trademark, reduced to\nwriting, or otherwise) that relates to the Company's actual or anticipated business, research and development, or existing or future products or\nservices and which are conceived, developed, or made by Employee (whether or not during usual business hours, whether or not by the use of the\nfacilities of the Company, and whether or not alone or in conjunction with any other person) while employed by the Company (including those\nconceived, developed, or made prior to the effective date of this Agreement) together with all patent applications, letters patent, trademark, trade\nname and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing.\n3.\nCONFIDENTIALITY REQUIREMENTS\n(a) Employee acknowledges and agrees that, as a result of the nature of the Company's business and the nature of Employee's position\nwith the Company, Employee has been or will come into contact with, and will have access to, Confidential Information belonging to the Company.\nEmployee acknowledges that the aforementioned Confidential Information is unique and not generally known to the public with respect to the\nCompany and has been developed, acquired, and compiled by the Company at its great effort and expense.\n(b) Employee further acknowledges and agrees that any disclosure or use of the Company's Confidential Information by Employee,\nother than in connection with the Company's business or as specifically authorized by the Company, will be or may become highly detrimental to the\nbusiness of the Company, and serious loss of business and damage to the Company will or may result.\n(c) Accordingly, Employee agrees to hold all Confidential Information in the strictest confidence and agrees to safeguard and not use,\ndisclose, divulge or reveal the Company's Confidential Information to any person, either during Employee's employment or at any time after the\ntermination of Employee's employment with the Company, without specific prior written authorization from an executive officer of the Company. If\nEmployee is an executive officer of the Company, Employee must obtain prior written authorization from the Chief Executive Officer.\n(d) Employee further agrees to promptly deliver to the Company, upon the termination of Employee's employment with the Company, or\nat any other time as the Company\n2\nmay so request, all Company property, including but not limited to laptops, personal digital assistants (PDAs), and cell phones, and all\ndocumentation, memoranda, notes, customer lists, records, reports, blueprints, software, drawings, computer disks, programs, and any other\ndocuments (and all copies thereof) containing Confidential Information or relating to the Company's business and any property associated therewith,\nwhich Employee may then possess or have under Employee's control.\n4.\nWORK PRODUCT REQUIREMENTS.\n(a)\nAll Work Product that Employee may have conceived, developed, made, discovered, invented or originated during his/her\nemployment by the Company prior to the Effective Date, during Employee's employment with the Company, or at any time in the period of twelve\n(12) months after termination of Employee's employment, shall be deemed work for hire and shall be the exclusive property of the Company, as\napplicable. Employee hereby assigns all of Employee's right, title, and interest in and to such Work Product to the Company, including all\nintellectual property rights therein.\n(b) Employee shall promptly disclose all Work Product to the Company, shall execute at the request of the Company any assignments\nor\nother\ndocuments the Company may deem necessary to protect or perfect its rights therein, and shall assist the Company, at the Company's\nexpense,\nin obtaining, defending, and enforcing the Company's rights therein. Employee hereby appoints the Company as Employee's attorney-in-fact to\nexecute on Employee's behalf any assignments or other documents deemed necessary by the Company to protect or perfect the Company's rights to\nany Work Product.\n5. NON-COMPETITION.\n(a) Employee acknowledges and agrees that the Company has invested and will invest substantial time, effort, resources and finances in\nthe research, development and commercialization of the Company's product(s) and is engaged in a highly competitive business and that, by virtue of\nthe position in which Employee is employed, he or she will help create and will be given access to Confidential Information. If the Employee\nengages in any business that is competitive with the Company it will cause great and irreparable harm to the Company, the monetary loss from\nwhich would be difficult, if not impossible, to measure.\n(b) Consequently, Employee covenants and agrees that so long as Employee is employed by the Company, and for a period of one\n(1) year following termination of Employee's employment with the Company, whether such termination is voluntary or involuntary, Employee will\nnot, directly or indirectly (whether as an individual for Employee's own account, or as a partner, joint venturer, employee, agent, consultant\nor\nsales\nrepresentative, officer, director or shareholder of any entity or otherwise), engage in, enter the employ of, render any services to, have any ownership\ninterest in, nor participate in the financing, operation, management or control of, any Competing Business, or in any manner compete with the\nCompany, in any country in which the Company does business, without the Company's specific written consent to do so. "Competing Business"\nshall mean any enterprise, activity, or business that competes with the Company in any of its or their material businesses, including, without\nlimitation, the research, design, development, identification, manufacture, marketing, or sales of targeted regional cancer or infectious disease drug\ndelivery systems.\n3\nThe restrictions contained in this section shall not prevent Employee from accepting employment with a large diversified organization with separate\nand distinct divisions that do not compete, directly or indirectly, with the Company, as long as prior to accepting such employment the Company\nreceives separate written assurances from the prospective employer and from Employee, satisfactory to the Company, to the effect that Employee\nwill not render any services, directly or indirectly, to any division or business unit that competes, directly or indirectly, with the Company. During the\nrestrictive period set forth in this section, Employee will inform any new employer, prior to accepting employment, of the existence of this\nAgreement and provide such employer with a copy of this Agreement.\nNothing in this Agreement shall be construed to prevent or otherwise restrict or limit the Employee from owning shares and investing (as a passive\ninvestor), directly or indirectly, in the stock of any publicly traded competing corporation whose shares are listed on a national securities exchange\nor\ntraded in the over-the-counter market, but only if Employee does not own more than an aggregate of one percent (1%) of the outstanding stock of\nsuch corporation.\n6.\nNON-SOLICITATION OF CUSTOMERS AND EMPLOYEES.\n(a)\nEmployee\nacknowledges\nand\nagrees\nthat,\nduring\nthe\ncourse\nof\nEmployee's\nemployment\nby\nthe\nCompany,\nEmployee\nmay\ncome\ninto\ncontact with and become aware of some, most, or all of the Company's customers and employees, past, present, and prospective, and their names\nand addresses, as well as other information about the customers and employees not publicly available. Employee further acknowledges and agrees\nthat the loss of such customers and employees may cause the Company great and irreparable harm.\n(b) Consequently, Employee covenants and agrees that, if Employee's employment with the Company terminates, whether such\ntermination is voluntary or involuntary, Employee will not, for a period of one (1) year following such termination, directly or indirectly\n(whether\nas\nan individual for Employee's own account, or as a partner, joint venturer, employee, agent, consultant or sales representative, officer, director or\nshareholder of any entity or otherwise), solicit or attempt to solicit to do business that would compete with the Company in any of its or their\nmaterial businesses, including, without limitation, the research, design, development, identification, manufacture, marketing, or sales of targeted\nregional cancer or infectious disease drug delivery systems.\n(c) Employee also agrees that, for a period of one (1) year following termination of Employee's employment with the Company, whether\nsuch termination is voluntary or involuntary, Employee will not, directly or indirectly (whether as an individual for Employee's own account, or as a\npartner, joint venturer, employee, agent, consultant or sales representative, officer, director or shareholder of any entity or otherwise), solicit or\nattempt to solicit any then current employee of the Company to leave employee's employment with the Company to become employed by any\nperson, firm, corporation, or other entity.\n7.\nENFORCEMENT OF COVENANTS.\n(a) Employee acknowledges that a breach by Employee of any of the terms of this Agreement will result in material, irreparable injury to\nthe Company for which any remedy at law will not be adequate. Moreover, it will not be possible to measure damages for such\n4\ninjuries precisely and, in the event of such a breach or threat of breach, the Company shall be entitled to obtain a temporary restraining order and/or a\npreliminary or permanent injunction restraining Employee from engaging in activities prohibited by this Agreement, together with such other relief\nas may be required to enforce specifically any of the terms of this Agreement. Employee consents to such temporary, preliminary, or permanent\ninjunctive relief. Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any other available remedies for breach or\nthreatened breach of this Agreement, including recovery of damages, court costs, and attorneys' fees.\n(b) If the Company is required to enforce any of its rights hereunder through legal proceedings, Employee shall reimburse the Company\nfor all reasonable costs, expenses, and attorneys' fees incurred by the Company in connection with the enforcement of its rights hereunder.\n(c) Employee understands and agrees that nothing in this Agreement creates a contract, express or implied, of employment for\nany\nspecified period. Employee's employment may be terminated by Employee or the Company at any time and for any reason or no reason, unless\nexpressly limited by a separate writing executed by both the Company and Employee.\n(d) If one or more provisions of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal,\nor\nunenforceable, Employee agrees the validity, legality, and enforcement of the remaining provisions of the Agreement shall not in any way be\naffected or impaired. Employee also agrees that the language contained in Sections "3", "4", "5" and "6" of the Agreement is reasonable in scope\nand that Employee will not raise any issue regarding the reasonableness of the Agreement as a defense in any proceeding to enforce the Agreement.\nIf\na\ncourt determines that the language contained in Sections "3", "4", "5" and "6" of the Agreement is not reasonable, the parties agree that the court\nmay modify such provisions to the maximum period of restriction, activities, term, or geographic scope that the court deems reasonable.\n8.\nWAIVER OF BREACH.\nThe waiver by the Company of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any\nsubsequent breach by Employee, and the failure of the Company to take action against any other employee(s) for similar breach(es) on their part,\nshall not be construed as a waiver of a breach by Employee.\n9.\nAGREEMENT BINDING.\nThis Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company, and the heirs, executors, and\nadministrators of Employee. The Company shall have the right to transfer and assign all or any portion of its rights and obligations hereunder to any\nthird party.\n10. APPLICABLE LAW AND CHOICE OF FORUM.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties, being desirous of\nhaving any disputes resolved in a forum having a substantial body of law and experience with matters contained herein, and the parties\n5\nhaving a substantial connection with the State of New York, agree that any action or proceeding with respect to this Agreement shall be brought in a\nstate or federal court located within the State of New York. The parties consent to the personal jurisdiction of the state and federal courts of New\nYork should a legal action to enforce this Agreement be necessary.\n11. MODIFICATION.\nThis Agreement may only be modified by the express written consent of both parties.\n12. ENTIRE AGREEMENT.\nThis Agreement constitutes the entire understanding between Company and Employee with respect to the subject matter hereof and supersedes\nand replaces all prior contracts, agreements and understandings related to the same subject matter between the parties.\n13. SECTION HEADINGS\nThe section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or\ndescribe the scope or extent of such section or in any way affect such section.\nI have read and understand this Agreement and I agree to abide by its terms.\n[EMPLOYEE]\nDELCATH SYSTEMS, INC.\n(Signature)\n(Signature)\nDate\nName\nWitness\nTitle\nDate\n6	EX-10.2 3 d234488dex102.htm FORM OF EMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT\nAGREEMENT\nExhibit 10.2\nDelcath Systems, Inc.\nEMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nAGREEMENT (“Agreement”) made this\nday of\n20 , between Delcath Systems, Inc., and its predecessors,\ndivisions, affiliates, successors, and assigns (the “Company”), and\n, residing at\n(“Employee”).\nWHEREAS, the Company wishes to obtain reasonable protection of its confidential business and technical information which it has\ndeveloped, acquired and/or is or may be developed or acquired by the Company at substantial expenses, and\nWHEREAS, the Company wishes to obtain reasonable protection against unfair competition during the Employees employment by the\nCompany and following termination of the Employee’s employment by the Company and to further protect against unfair use of its confidential\nbusiness and technical information the Company desires to have Employee execute this Agreement, and\nWHEREAS, the Employee is willing to execute this Agreement and grant the Company the benefits of the restrictive covenants contained\nherein.\nFor and in consideration of the continued employment of Employee by the Company and compensation and benefits paid to Employee and\nhereafter to be paid to Employee by the Company, Employee agrees as follows:\n1. NO PRIOR CONFLICTING CONTRACTS .\nEmployee represents that Employee’s employment or potential employment by the Company is not in violation of any contract or covenants to\nwhich Employee is a party with any employer, entity, or person. Employee agrees not to use or disclose in Employee’s work with the Company any\nsecret or confidential information of others, including prior employers, unless such information is rightfully possessed by the Company.\n2. DEFINITIONS\n(a) Confidential Information. For purposes of this Agreement, the term “Confidential Information” means information that is not\ngenerally known to the public and that is used, developed, or obtained by the Company in connection with its business, including, but not limited to,\ninformation, observations, and data obtained by Employee while employed by the Company thereof concerning (i) the business or affairs of the\nCompany, (ii) products or services, (iii) fees, costs, compensation, and pricing structures, (iv) designs, (v) specifications (including, but not limited\nto, supplier specifications); (vi) clinical trial data; (vii) analyses, (viii) drawings, photographs and reports, (ix) computer software, including\noperating systems, applications, and program listings, (x) flow charts, manuals, and documentation, (xi) data or data bases, (xii) accounting and\nbusiness methods, (xiii) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not\nreduced to practice, (xiv)\ncustomers and clients and customer or client lists, (xv) other copyrightable works, (xvi) all production methods, processes, technology, and trade\nsecrets, and (xvii) all similar and related information in whatever form. Confidential Information will not include any information that has been\npublished (other than a disclosure by Employee in breach of this Agreement) in a form generally available to the public prior to the date Employee\nproposes to disclose or use such information. Confidential Information will not be deemed to have been published merely because individual\nportions of the information have been separately published, but only if all material features comprising such information have been published in\ncombination.\n(b) Work Product. For purposes of this Agreement, the term “Work Product” means all inventions, innovations, improvements, technical\ninformation, systems, software developments, discoveries, methods, designs, processes, analyses, drawings, reports, service marks, trademarks, trade\nnames, logos, and all similar or related information (whether patentable or unpatentable, copyrightable, registerable as a trademark, reduced to\nwriting, or otherwise) that relates to the Company’s actual or anticipated business, research and development, or existing or future products or\nservices and which are conceived, developed, or made by Employee (whether or not during usual business hours, whether or not by the use of the\nfacilities of the Company, and whether or not alone or in conjunction with any other person) while employed by the Company (including those\nconceived, developed, or made prior to the effective date of this Agreement) together with all patent applications, letters patent, trademark, trade\nname and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing.\n3. CONFIDENTIALITY REQUIREMENTS.\n(a) Employee acknowledges and agrees that, as a result of the nature of the Company’s business and the nature of Employee’s position\nwith the Company, Employee has been or will come into contact with, and will have access to, Confidential Information belonging to the Company.\nEmployee acknowledges that the aforementioned Confidential Information is unique and not generally known to the public with respect to the\nCompany and has been developed, acquired, and compiled by the Company at its great effort and expense.\n(b) Employee further acknowledges and agrees that any disclosure or use of the Company’s Confidential Information by Employee,\nother than in connection with the Company’s business or as specifically authorized by the Company, will be or may become highly detrimental to the\nbusiness of the Company, and serious loss of business and damage to the Company will or may result.\n(c) Accordingly, Employee agrees to hold all Confidential Information in the strictest confidence and agrees to safeguard and not use,\ndisclose, divulge or reveal the Company’s Confidential Information to any person, either during Employee’s employment or at any time after the\ntermination of Employee’s employment with the Company, without specific prior written authorization from an executive officer of the Company. If\nEmployee is an executive officer of the Company, Employee must obtain prior written authorization from the Chief Executive Officer.\n(d) Employee further agrees to promptly deliver to the Company, upon the termination of Employee’s employment with the Company, or\nat any other time as the Company\n2\nmay so request, all Company property, including but not limited to laptops, personal digital assistants (PDAs), and cell phones, and all\ndocumentation, memoranda, notes, customer lists, records, reports, blueprints, software, drawings, computer disks, programs, and any other\ndocuments (and all copies thereof) containing Confidential Information or relating to the Company’s business and any property associated therewith,\nwhich Employee may then possess or have under Employee’s control.\n4. WORK PRODUCT REQUIREMENTS.\n(a) All Work Product that Employee may have conceived, developed, made, discovered, invented or originated during his/her\nemployment by the Company prior to the Effective Date, during Employee’s employment with the Company, or at any time in the period of twelve\n(12) months after termination of Employee’s employment, shall be deemed work for hire and shall be the exclusive property of the Company, as\napplicable. Employee hereby assigns all of Employee’s right, title, and interest in and to such Work Product to the Company, including all\nintellectual property rights therein.\n(b) Employee shall promptly disclose all Work Product to the Company, shall execute at the request of the Company any assignments or\nother documents the Company may deem necessary to protect or perfect its rights therein, and shall assist the Company, at the Company’s expense,\nin obtaining, defending, and enforcing the Company’s rights therein. Employee hereby appoints the Company as Employee’s attorney-in-fact to\nexecute on Employee’s behalf any assignments or other documents deemed necessary by the Company to protect or perfect the Company’s rights to\nany Work Product.\n5. NON-COMPETITION.\n(a) Employee acknowledges and agrees that the Company has invested and will invest substantial time, effort, resources and finances in\nthe research, development and commercialization of the Company’s product(s) and is engaged in a highly competitive business and that, by virtue of\nthe position in which Employee is employed, he or she will help create and will be given access to Confidential Information. If the Employee\nengages in any business that is competitive with the Company it will cause great and irreparable harm to the Company, the monetary loss from\nwhich would be difficult, if not impossible, to measure.\n(b) Consequently, Employee covenants and agrees that so long as Employee is employed by the Company, and for a period of one\n(1) year following termination of Employee’s employment with the Company, whether such termination is voluntary or involuntary, Employee will\nnot, directly or indirectly (whether as an individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales\nrepresentative, officer, director or shareholder of any entity or otherwise), engage in, enter the employ of, render any services to, have any ownership\ninterest in, nor participate in the financing, operation, management or control of, any Competing Business, or in any manner compete with the\nCompany, in any country in which the Company does business, without the Company’s specific written consent to do so. “Competing Business”\nshall mean any enterprise, activity, or business that competes with the Company in any of its or their material businesses, including, without\nlimitation, the research, design, development, identification, manufacture, marketing, or sales of targeted regional cancer or infectious disease drug\ndelivery systems.\n3\nThe restrictions contained in this section shall not prevent Employee from accepting employment with a large diversified organization with separate\nand distinct divisions that do not compete, directly or indirectly, with the Company, as long as prior to accepting such employment the Company\nreceives separate written assurances from the prospective employer and from Employee, satisfactory to the Company, to the effect that Employee\nwill not render any services, directly or indirectly, to any division or business unit that competes, directly or indirectly, with the Company. During the\nrestrictive period set forth in this section, Employee will inform any new employer, prior to accepting employment, of the existence of this\nAgreement and provide such employer with a copy of this Agreement.\nNothing in this Agreement shall be construed to prevent or otherwise restrict or limit the Employee from owning shares and investing (as a passive\ninvestor), directly or indirectly, in the stock of any publicly traded competing corporation whose shares are listed on a national securities exchange or\ntraded in the over-the-counter market, but only if Employee does not own more than an aggregate of one percent (1%) of the outstanding stock of\nsuch corporation.\n6. NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES.\n(a) Employee acknowledges and agrees that, during the course of Employee’s employment by the Company, Employee may come into\ncontact with and become aware of some, most, or all of the Company’s customers and employees, past, present, and prospective, and their names\nand addresses, as well as other information about the customers and employees not publicly available. Employee further acknowledges and agrees\nthat the loss of such customers and employees may cause the Company great and irreparable harm.\n(b) Consequently, Employee covenants and agrees that, if Employee’s employment with the Company terminates, whether such\ntermination is voluntary or involuntary, Employee will not, for a period of one (1) year following such termination, directly or indirectly (whether as\nan individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales representative, officer, director or\nshareholder of any entity or otherwise), solicit or attempt to solicit to do business that would compete with the Company in any of its or their\nmaterial businesses, including, without limitation, the research, design, development, identification, manufacture, marketing, or sales of targeted\nregional cancer or infectious disease drug delivery systems.\n(c) Employee also agrees that, for a period of one (1) year following termination of Employee’s employment with the Company, whether\nsuch termination is voluntary or involuntary, Employee will not, directly or indirectly (whether as an individual for Employee’s own account, or as a\npartner, joint venturer, employee, agent, consultant or sales representative, officer, director or shareholder of any entity or otherwise), solicit or\nattempt to solicit any then current employee of the Company to leave employee’s employment with the Company to become employed by any\nperson, firm, corporation, or other entity.\n7. ENFORCEMENT OF COVENANTS.\n(a) Employee acknowledges that a breach by Employee of any of the terms of this Agreement will result in material, irreparable injury to\nthe Company for which any remedy at law will not be adequate. Moreover, it will not be possible to measure damages for such\n4\ninjuries precisely and, in the event of such a breach or threat of breach, the Company shall be entitled to obtain a temporary restraining order and/or a\npreliminary or permanent injunction restraining Employee from engaging in activities prohibited by this Agreement, together with such other relief\nas may be required to enforce specifically any of the terms of this Agreement. Employee consents to such temporary, preliminary, or permanent\ninjunctive relief. Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any other available remedies for breach or\nthreatened breach of this Agreement, including recovery of damages, court costs, and attorneys’ fees.\n(b) If the Company is required to enforce any of its rights hereunder through legal proceedings, Employee shall reimburse the Company\nfor all reasonable costs, expenses, and attorneys’ fees incurred by the Company in connection with the enforcement of its rights hereunder.\n(c) Employee understands and agrees that nothing in this Agreement creates a contract, express or implied, of employment for any\nspecified period. Employee’s employment may be terminated by Employee or the Company at any time and for any reason or no reason, unless\nexpressly limited by a separate writing executed by both the Company and Employee.\n(d) If one or more provisions of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or\nunenforceable, Employee agrees the validity, legality, and enforcement of the remaining provisions of the Agreement shall not in any way be\naffected or impaired. Employee also agrees that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is reasonable in scope\nand that Employee will not raise any issue regarding the reasonableness of the Agreement as a defense in any proceeding to enforce the Agreement.\nIf a court determines that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is not reasonable, the parties agree that the court\nmay modify such provisions to the maximum period of restriction, activities, term, or geographic scope that the court deems reasonable.\n8. WAIVER OF BREACH.\nThe waiver by the Company of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any\nsubsequent breach by Employee, and the failure of the Company to take action against any other employee(s) for similar breach(es) on their part,\nshall not be construed as a waiver of a breach by Employee.\n9. AGREEMENT BINDING .\nThis Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company, and the heirs, executors, and\nadministrators of Employee. The Company shall have the right to transfer and assign all or any portion of its rights and obligations hereunder to any\nthird party.\n10. APPLICABLE LAW AND CHOICE OF FORUM.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties, being desirous of\nhaving any disputes resolved in a forum having a substantial body of law and experience with matters contained herein, and the parties\n5\nhaving a substantial connection with the State of New York, agree that any action or proceeding with respect to this Agreement shall be brought in a\nstate or federal court located within the State of New York. The parties consent to the personal jurisdiction of the state and federal courts of New\nYork should a legal action to enforce this Agreement be necessary.\n11. MODIFICATION.\nThis Agreement may only be modified by the express written consent of both parties.\n12. ENTIRE AGREEMENT .\nThis Agreement constitutes the entire understanding between Company and Employee with respect to the subject matter hereof and supersedes\nand replaces all prior contracts, agreements and understandings related to the same subject matter between the parties.\n13. SECTION HEADINGS\nThe section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or\ndescribe the scope or extent of such section or in any way affect such section.\nI have read and understand this Agreement and I agree to abide by its terms.\n[EMPLOYEE]\nDELCATH SYSTEMS, INC.\n(Signature)\n(Signature)\nDate\nName\nWitness\nTitle\nDate\n6
586c367e2c45ebd8b7ba96fcb6006bf6.pdf	effective_date jurisdiction party term	EX-10.48 15 dex1048.htm CONFIDENTIALITY AND ASSIGNMENT OF PROPRIETARY DEVELOPMENTS\nAGREEMENT\nExhibit 10.48\nLOGO\nOctober 5, 2007\nChristopher C. Gallen, MD, PhD\nTELEPHONE: 484.533.6900\nEmail: cgallen@neuromed.com\nSchedule “B”\nC. Eugene Wright, III\n16 Carhart Court\nPittstown, New Jersey 08867\nDear Eugene:\nRe: Confidentiality and Assignment of Proprietary Developments Agreement\nThe purpose of this exhibit is to describe and record the Agreement between you and Neuromed Pharmaceuticals Inc. (“Company”) concerning\nthe terms on which you, as an employee of Company, will protect and keep confidential certain information received during your employment with\nCompany and pursuant to which you agree to assign certain Proprietary Developments to Company.\nAs an essential element of the Company’s offer of employment to you, you hereby agree to be bound by the following:\n1. DEFINITIONS:\nIn this Agreement:\n(a) “Confidential Information” means the whole or any portion of any data or information about the business of the Companies that the\nCompanies protect from public disclosure. Confidential Information relates to Companies’ services, products, processes or techniques,\nas well as to the business, services, products, processes and techniques of Companies’ clients, regardless of whether or not that\ninformation is copyrighted, patented or patentable. Confidential Information shall include but not be limited to:\n(i) experimental techniques, proprietary assays, screening strategies and technologies, targets for drug discovery and chemical\nformulae;\n(ii) commercial and financial information concerning the corporate, scientific, and pharmaceutical research activities and plans of\nCompanies including any information regarding Companies’ costs, sales, income, salaries, customers, and all business\nopportunities or joint ventures considered by Companies, whether or not pursued; and\nC. Eugene Wright, III\nOct. 5, 2007\nPage2of7\n(iii) any and all confidential know-how, Trade Secrets, and any and all oral, written, electronic or other confidential communications\nregarding any Proprietary Developments.\n(b) “Company’s Business” means the specific biomedical research and development activities conducted by Companies including but not\nlimited to the discovery and development of novel calcium channel blockers for the purpose of treating diseases.\n(c) “Company” shall mean Neuromed Pharmaceuticals Inc. and any affiliated companies.\n(d) “Companies” shall mean the Company and Neuromed Pharmaceuticals Ltd. and any affiliated companies.\n(e) “Proprietary Development” means a development or developments including, without limitation:\n(i) enhancements, modifications, additions or other improvements to the intellectual property or assets owned, licensed, sold,\nmarketed or used by Companies in connection with Companies’ Business;\n(ii) trademarks, copyrights, trade names, business names, logos, design marks and other proprietary marks;\n(iii) inventions, devices, discoveries, concepts, ideas, formulae, know-how, processes, techniques, systems, methods and any\nimprovements, enhancements and modifications thereto, whether patented or not; developed, created, generated, contributed to or\nreduced to practice by you alone or jointly with others pursuant to your activities as an employee, director, officer or consultant of\nCompany and which results from tasks assigned to you by Company or which results from the use of the premises or property\n(including equipment, supplies or Confidential Information) owned, leased or licensed by Companies and which reasonably\nrelates to the Companies Business, or which results from or relates to working with Companies’ clients, either directly or\nindirectly.\n(f) “Trade Secret(s)” shall mean any information falling under the definition of a Trade Secret pursuant to the Uniform Trade Secrets Act or,\nif applicable, the version thereof adopted by Pennsylvania. Trade Secrets include, but are not limited to, any useful process, machine or\nother device or composition of matter which is new and which is being used or studied by Companies and is not described in a patent or\ndescribed in any literature already published and distributed externally by Companies; the source code or algorithms of any software\ndeveloped or owned by Companies; any formula, plan, tool, machine, process or method employed by Companies, whether patentable\nor not; business plans and marketing concepts of Companies; marketing or sales information of Companies; financial information or\nprojections regarding Companies; financial, pricing and/or credit information regarding clients or vendors of Companies, and internal\npolicies and procedures of Companies.\n2. CONFIDENTIALITY:\n(a) Basic Obligation Of Confidentiality:\nYou acknowledge and agree that during your employment with Company, Companies may disclose to you, or you may otherwise be exposed\nto, Companies’ Confidential Information. Company agrees to provide such access to you and you agree to receive and hold the Confidential\nInformation on the terms and conditions set out herein. Except as set out below,\nC. Eugene Wright, III\nOct. 5, 2007\nPage3of7\nyou will keep strictly confidential all Confidential Information and all other information that you acquire, see, or are informed of, as a direct or\nindirect consequence of your involvement with Companies in any capacity or that is revealed to you by Companies or is generated through\nnegotiations or other activities of third parties in connection with your involvement, in any capacity, with Companies’ Business.\n(b) Non-Disclosure:\nUnless the authorized representative of Company first gives you written permission to do so, you will not:\n(i) use or duplicate Confidential Information or recollections thereof;\n(ii) disclose Confidential Information or recollections thereof to any third party;\nor\n(iii) translate or adapt any Confidential Information or permit any Confidential Information to be used, copied, translated or adapted.\n(c) Taking Precautions:\nYou will take all reasonable precautions necessary or prudent to prevent material in your possession or control that contains or refers to\nConfidential Information from being discovered, used, or copied by third parties.\n(d) Companies’ Ownership of Confidential Information:\nAs between you and Companies, all right, title and interest in and to the Confidential Information, whether or not created or developed by you,\nis and shall remain Companies’ property.\n(e) Control of Confidential Information and Return of Information:\nAll physical materials produced or prepared by you containing Confidential Information, including designs, formulae, memoranda, test results\nand notes of experiments, drawings, plans, prototypes, samples, accounts, reports, data, financial statements or proforma estimates and any\nother materials prepared in the course of your responsibilities or for the benefit of Companies shall belong to Companies, and you will turn\nover possession to Company of all such items in your possession or control promptly when Company requests you to do so.\n(f) Purpose of Use:\nYou will use Confidential Information only for purposes authorized or directed by Company or Companies and its officers, and you will not\nseek access to any Confidential Information that is not relevant to or necessary for those purposes.\n(g) Extent and Duration of Obligation:\nExcept as Company agrees In writing, your obligations of confidentiality under this Agreement shall continue for the longer of:\n(i) ten (10) years after the termination of your employment with Company;\nand\nC. Eugene Wright, III\nOct. 5, 2007\nPage4of7\n(ii) with respect to particular items of Confidential Information or material, for so long as those items are not in the public domain,\nbut your obligations will continue if those items enter the public domain as a consequence of a breach of this Agreement or any\nother wrongful or negligent act or omission by you.\nThe restrictions in this Agreement regarding confidentiality will not apply to information which is known by you prior to your employment\nwith Company, except to the extent that such information was disclosed to you under a confidentiality agreement with a prior employer or to\nthe extent that value can be derived by a competitor from the manner in which such information has been compiled by you or others during\nyour employment by Company.\n3. ASSIGNMENT OF PROPRIETARY DEVELOPMENTS:\n(a) Full Disclosure of Proprietary Developments:\nYou agree to promptly inform, and make full disclosure of, any Proprietary Development to Company. If required by Company, you will\ndisclose in writing in a log book or such other form or device provided for such purpose by Company, the details of all Proprietary\nDevelopments that you are involved with or responsible for as an employee of Company.\n(b) Assignment of Proprietary Developments to Company:\nYou will assign, and do hereby irrevocably assign and transfer to Company or to Company’s designee, your entire right, title and interest in\nand to all Proprietary Developments and any Confidential Information. Without limiting the foregoing, you agree to waive all legal and moral\nrights in such Proprietary Developments, and you agree that all Proprietary Developments to which you contribute in any way while an\nemployee of Company and within the scope of your employment shall be deemed to be “works made in the course of employment” and that\nCompany, or Company’s designee, shall be deemed the owner thereof. To the extent that you may own or acquire legal title to any of such\nProprietary Developments, you hereby declare and confirm that such legal title is, and will be, held in a fiduciary capacity by you only as\ntrustee and agent for Company. You agree that Company, or Company’s designee, will be the exclusive owner of all of your right title and\ninterest in and to each Proprietary Development throughout the world, including all Trade Secret, patent, copyright, trademark, industrial\ndesign and all other intellectual property rights of any kind therein. To the extent that any of the works prepared by or to which you contribute\nwithin the scope of your employment with Company, shall be deemed by a court of competent jurisdiction not to be a “work made for hire”,\nthis Agreement shall operate as an irrevocable assignment by you to Company, or Company’s designee, of all right, title and interest in and to\nsuch works, including, without limitation, all worldwide copyright interests therein, in perpetuity.\n(c) Notice:\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate you to assign or offer to assign to\nCompany any of your rights in an invention for which no equipment, supplies, facilities or Confidential Information of Company was used and\nwhich was developed entirely on your own time, unless: (1) the invention relates (a) directly to the business of Companies or (b) to\nCompanies’ actual or demonstrably anticipated research or development, or (2) the invention results from any work performed by you for\nCompany. This Notice satisfies the written notice and other requirements of RCW 49.44.140.\n(d) Assistance with Proceedings:\nYou further agree at Company’s request to assist in drafting of any description or specification of the Proprietary Development as may be\nrequired for any patent application and to assist with any opposition to, or intervention regarding, an application for any patent, copyright or\ntrademark\nC. Eugene Wright, III\nOct. 5, 2007\nPage5of7\nor other proceedings relating to any Proprietary Developments. Without limiting the foregoing you agree to execute:\n(i) all instruments that Company may reasonably require to effect, protect, perfect, register, record or patent any Proprietary\nDevelopments or Confidential Information, or related rights, or Company’s interest therein; and\n(ii) all papers that Company reasonably considers necessary or helpful in obtaining or maintaining such interests and rights during\nthe prosecution of applications thereon or during the conduct of any interference, litigation, opposition, or any other matter in\nconnection therewith;\nprovided that all expenses incident to such activities will `be borne by Company.\nYour obligations under this Section will continue in perpetuity beyond any termination of your employment with Company, respecting any\nProprietary Developments created during your employment with Company, or any Proprietary Developments perfected or reduced to specific\nform after termination of your employment with Company, if the conception of the Proprietary Development arose during the time of your\nemployment with Company. You agree that Company’s rights under this Section shall not be limited to the United States, but shall extend to\nevery country of the world.\n(e) Inventions and Improvements:\nYou further agree to treat all information relating to any Proprietary Development as Confidential Information owned by Company and you\nwill disclose same only to your immediate superior or as he or she may direct.\n(f) Publicity and Publication:\nWithout the prior written consent of the Chief Scientific Officer or the Chief Executive Officer of Company you will not make or give any\npublic announcements or press releases or statements to the public or the press regarding any Proprietary Developments, Confidential\nInformation or other information concerning Companies’ Business. You also will not submit an abstract or publication for review or\npublication until you have prior written approval to do so from the Chief Scientific Officer of Company.\n4. MISCELLANEOUS:\n(a) Governing Law:\nThis Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania.\n(b) Equitable Remedies:\nYou acknowledge and agree that the restrictions contained in this Agreement, in view of the nature of the business in which the Companies are\nengaged, are reasonable and necessary in order to protect the legitimate interests of the Companies, and that any violation or threatened\nviolation thereof would result in irreparable injury to the Companies. You therefore agree that:\n(i) in the event of your violation or threatened violation of any of these restrictions, the Companies shall be entitled to obtain from\nany court of competent jurisdiction preliminary and permanent injunctive relief, or an appropriate decree of specific performance,\nwithout proof of actual loss or the need to post any bonds. You further\nC. Eugene Wright, III\nOct. 5, 2007\nPage6of7\nagree that Companies shall be entitled to any and all other damages available at law and in equity, and an equitable accounting of\nall earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other\nrights or remedies to which the Companies may be entitled.\n(ii) You shall indemnify and hold harmless the Companies and their officers, directors, and employees from and against any and all\nliabilities, losses, costs and expenses (including but not limited to, reasonable attorneys’ fees), damages and injuries resulting\nfrom, or in connection with, any material breach of any provision of this Agreement by you.\n(c) Amendments:\nNo amendment, modification, supplement or other purported alteration of this Agreement shall be binding unless it is in writing and signed by\nyou and by Companies.\n(d) Binding Nature of Agreement:\nYou agree that this Agreement is binding on your personal representatives. You also agree that the covenants and provisions contained in this\nAgreement shall survive and continue to bind you following the termination of your employment with Company regardless of how your\nemployment is terminated.\n(e) Independent Legal Advice:\nAs this is an important agreement for you and for Companies containing significant undertakings by you, Companies urge you to seek\nindependent legal advice regarding this Agreement prior to signing.\n(f) Severability:\nIf any part or Section of this Agreement is determined by a Court of competent jurisdiction to be void or unenforceable in whole or in part,\nthen such void or unenforceable part or Section shall be severed, and shall not affect or impair the enforceability or validity of the balance of\nthe Section or any other part of this Agreement.\n(g) No Waiver:\nNo waiver, delay, indulgence, or failure to act by Companies regarding any particular default or omission by you shall affect or impair any of\nCompanies’ rights or remedies regarding that or any subsequent default or omission that is not expressly waived in writing.\n(h) No Other Obligations:\nYou represent, except as you have disclosed to Companies in writing on the date hereof, that you have no agreements with or obligations to\nothers with respect to the matters covered by this Agreement or concerning the Confidential Information that are in conflict with anything in\nthis Agreement.\nC. Eugene Wright, III\nOct. 5, 2007\nPage7of7\nNEUROMED PHARMACEUTICALS INC.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nNEUROMED PHARMACEUTICALS LTD.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nACCEPTED AND AGREED TO THIS 11 DAY OF October, 2007. BY MY SIGNATURE BELOW, I AFFIRM THAT I HAVE READ AND\nUNDERSTAND THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AND AGREE TO BE BOUND BY THEM.\n/s/ C. Eugene Wright, III\nC. Eugene Wright, III\nth	EX-10.48 15 dex1048.htm CONFIDENTIALITY AND ASSIGNMENT OF PROPRIETARY DEVELOPMENTS\nAGREEMENT\nExhibit 10.48\nl#.LOGO\nOctober 5, 2007 Christopher C. Gallen, MD, PhD\nTELEPHONE: 484.533.6900\nEmail: cgallen@neuromed.com\nSchedule “B”\nC. Eugene Wright, III\n16 Carhart Court\nPittstown, New Jersey 08867\nDear Eugene:\nRe: Confidentiality and Assignment of Proprietary Developments Agreement\nThe purpose of this exhibit is to describe and record the Agreement between you and Neuromed Pharmaceuticals Inc. (“Company”) concerning\nthe terms on which you, as an employee of Company, will protect and keep confidential certain information received during your employment with\nCompany and pursuant to which you agree to assign certain Proprietary Developments to Company.\nAs an essential element of the Company’s offer of employment to you, you hereby agree to be bound by the following:\n1. DEFINITIONS:\nIn this Agreement:\n(a) “Confidential Information” means the whole or any portion of any data or information about the business of the Companies that the\nCompanies protect from public disclosure. Confidential Information relates to Companies’ services, products, processes or techniques,\nas well as to the business, services, products, processes and techniques of Companies’ clients, regardless of whether or not that\ninformation is copyrighted, patented or patentable. Confidential Information shall include but not be limited to:\n@ experimental techniques, proprietary assays, screening strategies and technologies, targets for drug discovery and chemical\nformulae;\n(i)  commercial and financial information concerning the corporate, scientific, and pharmaceutical research activities and plans of\nCompanies including any information regarding Companies’ costs, sales, income, salaries, customers, and all business\nopportunities or joint ventures considered by Companies, whether or not pursued; and\n(b)\n()\n(d)\n(e)\n®\nC. Eugene Wright, III\nOct. 5, 2007\nPage 2 of 7\n(ili)  any and all confidential know-how, Trade Secrets, and any and all oral, written, electronic or other confidential communications\nregarding any Proprietary Developments.\n“Company’s Business” means the specific biomedical research and development activities conducted by Companies including but not\nlimited to the discovery and development of novel calcium channel blockers for the purpose of treating diseases.\n“Company” shall mean Neuromed Pharmaceuticals Inc. and any affiliated companies.\n“Companies” shall mean the Company and Neuromed Pharmaceuticals Ltd. and any affiliated companies.\n“Proprietary Development” means a development or developments including, without limitation:\n@) enhancements, modifications, additions or other improvements to the intellectual property or assets owned, licensed, sold,\nmarketed or used by Companies in connection with Companies’ Business;\n(ii)  trademarks, copyrights, trade names, business names, logos, design marks and other proprietary marks;\n(iii)  inventions, devices, discoveries, concepts, ideas, formulae, know-how, processes, techniques, systems, methods and any\nimprovements, enhancements and modifications thereto, whether patented or not; developed, created, generated, contributed to or\nreduced to practice by you alone or jointly with others pursuant to your activities as an employee, director, officer or consultant of\nCompany and which results from tasks assigned to you by Company or which results from the use of the premises or property\n(including equipment, supplies or Confidential Information) owned, leased or licensed by Companies and which reasonably\nrelates to the Companies Business, or which results from or relates to working with Companies’ clients, either directly or\nindirectly.\n“Trade Secret(s)” shall mean any information falling under the definition of a Trade Secret pursuant to the Uniform Trade Secrets Act or,\nif applicable, the version thereof adopted by Pennsylvania. Trade Secrets include, but are not limited to, any useful process, machine or\nother device or composition of matter which is new and which is being used or studied by Companies and is not described in a patent or\ndescribed in any literature already published and distributed externally by Companies; the source code or algorithms of any software\ndeveloped or owned by Companies; any formula, plan, tool, machine, process or method employed by Companies, whether patentable\nor not; business plans and marketing concepts of Companies; marketing or sales information of Companies; financial information or\nprojections regarding Companies; financial, pricing and/or credit information regarding clients or vendors of Companies, and internal\npolicies and procedures of Companies.\nCONFIDENTIALITY: (a)\nBasic Obligation Of Confidentiality:\nYou acknowledge and agree that during your employment with Company, Companies may disclose to you, or you may otherwise be exposed to, Companies’ Confidential Information. Company agrees to provide such access to you and you agree to receive and hold the Confidential Information on the terms and conditions set out herein. Except as set out below,\fC. Eugene Wright, III\nOct. 5, 2007\nPage 3 of 7\nyou will keep strictly confidential all Confidential Information and all other information that you acquire, see, or are informed of, as a direct or\nindirect consequence of your involvement with Companies in any capacity or that is revealed to you by Companies or is generated through\nnegotiations or other activities of third parties in connection with your involvement, in any capacity, with Companies’ Business.\n(b) Non-Disclosure:\nUnless the authorized representative of Company first gives you written permission to do so, you will not:\n@) use or duplicate Confidential Information or recollections thereof;\n(i)  disclose Confidential Information or recollections thereof to any third party;\nor\n(iii)  translate or adapt any Confidential Information or permit any Confidential Information to be used, copied, translated or adapted.\n(c) Taking Precautions:\nYou will take all reasonable precautions necessary or prudent to prevent material in your possession or control that contains or refers to\nConfidential Information from being discovered, used, or copied by third parties.\n(d) Companies’ Ownership of Confidential Information:\nAs between you and Companies, all right, title and interest in and to the Confidential Information, whether or not created or developed by you,\nis and shall remain Companies’ property.\n(e) Control of Confidential Information and Return of Information:\nAll physical materials produced or prepared by you containing Confidential Information, including designs, formulae, memoranda, test results\nand notes of experiments, drawings, plans, prototypes, samples, accounts, reports, data, financial statements or proforma estimates and any\nother materials prepared in the course of your responsibilities or for the benefit of Companies shall belong to Companies, and you will turn\nover possession to Company of all such items in your possession or control promptly when Company requests you to do so.\n(f)  Purpose of Use:\nYou will use Confidential Information only for purposes authorized or directed by Company or Companies and its officers, and you will not\nseek access to any Confidential Information that is not relevant to or necessary for those purposes.\n(g) Extent and Duration of Obligation:\nExcept as Company agrees In writing, your obligations of confidentiality under this Agreement shall continue for the longer of:\n@ ten (10) years after the termination of your employment with Company;\nand\nC. Eugene Wright, III\nOct. 5, 2007\nPage 4 of 7\n(i)  with respect to particular items of Confidential Information or material, for so long as those items are not in the public domain,\nbut your obligations will continue if those items enter the public domain as a consequence of a breach of this Agreement or any\nother wrongful or negligent act or omission by you.\nThe restrictions in this Agreement regarding confidentiality will not apply to information which is known by you prior to your employment\nwith Company, except to the extent that such information was disclosed to you under a confidentiality agreement with a prior employer or to\nthe extent that value can be derived by a competitor from the manner in which such information has been compiled by you or others during\nyour employment by Company.\nASSIGNMENT OF PROPRIETARY DEVELOPMENTS:\n(a) Full Disclosure of Proprietary Developments:\nYou agree to promptly inform, and make full disclosure of, any Proprietary Development to Company. If required by Company, you will\ndisclose in writing in a log book or such other form or device provided for such purpose by Company, the details of all Proprietary\nDevelopments that you are involved with or responsible for as an employee of Company.\n(b) Assignment of Proprietary Developments to Company:\nYou will assign, and do hereby irrevocably assign and transfer to Company or to Company’s designee, your entire right, title and interest in\nand to all Proprietary Developments and any Confidential Information. Without limiting the foregoing, you agree to waive all legal and moral\nrights in such Proprietary Developments, and you agree that all Proprietary Developments to which you contribute in any way while an\nemployee of Company and within the scope of your employment shall be deemed to be “works made in the course of employment” and that\nCompany, or Company’s designee, shall be deemed the owner thereof. To the extent that you may own or acquire legal title to any of such\nProprietary Developments, you hereby declare and confirm that such legal title is, and will be, held in a fiduciary capacity by you only as\ntrustee and agent for Company. You agree that Company, or Company’s designee, will be the exclusive owner of all of your right title and\ninterest in and to each Proprietary Development throughout the world, including all Trade Secret, patent, copyright, trademark, industrial\ndesign and all other intellectual property rights of any kind therein. To the extent that any of the works prepared by or to which you contribute\nwithin the scope of your employment with Company, shall be deemed by a court of competent jurisdiction not to be a “work made for hire”,\nthis Agreement shall operate as an irrevocable assignment by you to Company, or Company’s designee, of all right, title and interest in and to\nsuch works, including, without limitation, all worldwide copyright interests therein, in perpetuity.\n(c) Notice:\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate you to assign or offer to assign to\nCompany any of your rights in an invention for which no equipment, supplies, facilities or Confidential Information of Company was used and\nwhich was developed entirely on your own time, unless: (1) the invention relates (a) directly to the business of Companies or (b) to\nCompanies’ actual or demonstrably anticipated research or development, or (2) the invention results from any work performed by you for\nCompany. This Notice satisfies the written notice and other requirements of RCW 49.44.140.\n(d) Assistance with Proceedings:\nYou further agree at Company’s request to assist in drafting of any description or specification of the Proprietary Development as may be\nrequired for any patent application and to assist with any opposition to, or intervention regarding, an application for any patent, copyright or\ntrademark\nC. Eugene Wright, III\nOct. 5, 2007\nPage 5 of 7\nor other proceedings relating to any Proprietary Developments. Without limiting the foregoing you agree to execute:\n@) all instruments that Company may reasonably require to effect, protect, perfect, register, record or patent any Proprietary\nDevelopments or Confidential Information, or related rights, or Company’s interest therein; and\n(i)  all papers that Company reasonably considers necessary or helpful in obtaining or maintaining such interests and rights during\nthe prosecution of applications thereon or during the conduct of any interference, litigation, opposition, or any other matter in\nconnection therewith;\nprovided that all expenses incident to such activities will “be borne by Company.\nYour obligations under this Section will continue in perpetuity beyond any termination of your employment with Company, respecting any\nProprietary Developments created during your employment with Company, or any Proprietary Developments perfected or reduced to specific\nform after termination of your employment with Company, if the conception of the Proprietary Development arose during the time of your\nemployment with Company. You agree that Company’s rights under this Section shall not be limited to the United States, but shall extend to\nevery country of the world.\n(e) Inventions and Improvements:\nYou further agree to treat all information relating to any Proprietary Development as Confidential Information owned by Company and you\nwill disclose same only to your immediate superior or as he or she may direct.\n(f)  Publicity and Publication:\nWithout the prior written consent of the Chief Scientific Officer or the Chief Executive Officer of Company you will not make or give any\npublic announcements or press releases or statements to the public or the press regarding any Proprietary Developments, Confidential\nInformation or other information concerning Companies’ Business. You also will not submit an abstract or publication for review or\npublication until you have prior written approval to do so from the Chief Scientific Officer of Company.\nMISCELLANEOUS:\n(@) Governing Law:\nThis Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania.\n(b) Equitable Remedies:\nYou acknowledge and agree that the restrictions contained in this Agreement, in view of the nature of the business in which the Companies are\nengaged, are reasonable and necessary in order to protect the legitimate interests of the Companies, and that any violation or threatened\nviolation thereof would result in irreparable injury to the Companies. You therefore agree that:\n@ in the event of your violation or threatened violation of any of these restrictions, the Companies shall be entitled to obtain from\nany court of competent jurisdiction preliminary and permanent injunctive relief, or an appropriate decree of specific performance,\nwithout proof of actual loss or the need to post any bonds. You further\nC. Eugene Wright, III\nOct. 5, 2007\nPage 6 of 7\nagree that Companies shall be entitled to any and all other damages available at law and in equity, and an equitable accounting of\nall earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other\nrights or remedies to which the Companies may be entitled.\n(i)  You shall indemnify and hold harmless the Companies and their officers, directors, and employees from and against any and all\nliabilities, losses, costs and expenses (including but not limited to, reasonable attorneys’ fees), damages and injuries resulting\nfrom, or in connection with, any material breach of any provision of this Agreement by you.\n(c) Amendments:\nNo amendment, modification, supplement or other purported alteration of this Agreement shall be binding unless it is in writing and signed by\nyou and by Companies.\n(d) Binding Nature of Agreement:\nYou agree that this Agreement is binding on your personal representatives. You also agree that the covenants and provisions contained in this\nAgreement shall survive and continue to bind you following the termination of your employment with Company regardless of how your\nemployment is terminated.\n(e) Independent Legal Advice:\nAs this is an important agreement for you and for Companies containing significant undertakings by you, Companies urge you to seek\nindependent legal advice regarding this Agreement prior to signing.\n(f) Severability:\nIf any part or Section of this Agreement is determined by a Court of competent jurisdiction to be void or unenforceable in whole or in part,\nthen such void or unenforceable part or Section shall be severed, and shall not affect or impair the enforceability or validity of the balance of\nthe Section or any other part of this Agreement.\n(g) No Waiver:\nNo waiver, delay, indulgence, or failure to act by Companies regarding any particular default or omission by you shall affect or impair any of\nCompanies’ rights or remedies regarding that or any subsequent default or omission that is not expressly waived in writing.\n(h) No Other Obligations:\nYou represent, except as you have disclosed to Companies in writing on the date hereof, that you have no agreements with or obligations to\nothers with respect to the matters covered by this Agreement or concerning the Confidential Information that are in conflict with anything in\nthis Agreement.\nC. Eugene Wright, III\nOct. 5, 2007\nPage 7 of 7\nNEUROMED PHARMACEUTICALS INC.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nNEUROMED PHARMACEUTICALS LTD.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nACCEPTED AND AGREED TO THIS 11® DAY OF October, 2007. BY MY SIGNATURE BELOW, I AFFIRM THAT I HAVE READ AND\nUNDERSTAND THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AND AGREE TO BE BOUND BY THEM.\n/s/ C. Eugene Wright, III\nC. Eugene Wright, III	EX-10.48 15 dex x1048.htm CONFIDENTIALITY AND ASSIGNMENT OF PROPRIETARY DEVELOPMENTS\nAGREEMENT\nExhibit 10.48\nLoGo\nOctober 5, 2007\nChristopher C. Gallen, MD, PhD\nTELEPHONE: 484.533.6900\nEmail: cgallen@neuromed.com\nSchedule "B"\nC. Eugene Wright, III\n16 Carhart Court\nPittstown, New Jersey 08867\nDear Eugene:\nRe: Confidentiality and Assignment of Proprietary Developments Agreement\nThe purpose of this exhibit is to describe and record the Agreement between you and Neuromed Pharmaceuticals Inc. ("Company") concerning\nthe terms on which you, as an employee of Company, will protect and keep confidential certain information received during your employment with\nCompany and pursuant to which you agree to assign certain Proprietary Developments to Company.\nAs an essential element of the Company's offer of employment to you, you hereby agree to be bound by the following:\n1. DEFINITIONS:\nIn this Agreement:\n(a) "Confidential Information" means the whole or any portion of any data or information about the business of the Companies that the\nCompanies protect from public disclosure. Confidential Information relates to Companies' services, products, processes or techniques,\nas well as to the business, services, products, processes and techniques of Companies' clients, regardless of whether or not that\ninformation is copyrighted, patented or patentable. Confidential Information shall include but not be limited to:\n(i)\nexperimental techniques, proprietary assays, screening strategies and technologies, targets for drug discovery and chemical\nformulae;\n(ii)\ncommercial and financial information concerning the corporate, scientific, and pharmaceutical research activities and plans of\nCompanies including any information regarding Companies' costs, sales, income, salaries, customers, and all business\nopportunities or joint ventures considered by Companies, whether or not pursued; and\nC. Eugene Wright, III\nOct. 5, 2007\nPage 2 of 7\n(iii)\nany and all confidential know-how, Trade Secrets, and any and all oral, written, electronic or other confidential communications\nregarding any Proprietary Developments.\n(b)\n"Company's Business" means the specific biomedical research and development activities conducted by Companies including but not\nlimited to the discovery and development of novel calcium channel blockers for the purpose of treating diseases.\n(c) "Company" shall mean Neuromed Pharmaceuticals Inc. and any affiliated companies.\n(d)\n"Companies" shall mean the Company and Neuromed Pharmaceuticals Ltd. and any affiliated companies.\n(e)\n"Proprietary Development" means a development or developments including, without limitation:\n(i)\nenhancements, modifications, additions or other improvements to the intellectual property or assets owned, licensed, sold,\nmarketed or used by Companies in connection with Companies' Business;\n(ii)\ntrademarks, copyrights, trade names, business names, logos, design marks and other proprietary marks;\n(iii)\ninventions, devices, discoveries, concepts, ideas, formulae, know-how, processes, techniques, systems, methods and any\nimprovements, enhancements and modifications thereto, whether patented or not; developed, created, generated, contributed to or\nreduced to practice by you alone or jointly with others pursuant to your activities as an employee, director, officer or consultant of\nCompany and which results from tasks assigned to you by Company or which results from the use of the premises or property\n(including equipment, supplies or Confidential Information) owned, leased or licensed by Companies and which reasonably\nrelates to the Companies Business, or which results from or relates to working with Companies' clients, either directly or\nindirectly.\n(f)\n"Trade Secret(s)" shall mean any information falling under the definition of a Trade Secret pursuant to the Uniform Trade Secrets Act or,\nif applicable, the version thereof adopted by Pennsylvania. Trade Secrets include, but are not limited to, any useful process, machine or\nother device or composition of matter which is new and which is being used or studied by Companies and is not described in a patent or\ndescribed in any literature already published and distributed externally by Companies; the source code or algorithms of any software\ndeveloped or owned by Companies; any formula, plan, tool, machine, process or method employed by Companies, whether patentable\nor not; business plans and marketing concepts of Companies; marketing or sales information of Companies; financial information or\nprojections regarding Companies; financial, pricing and/or credit information regarding clients or vendors of Companies, and internal\npolicies and procedures of Companies.\n2. CONFIDENTIALITY:\n(a) Basic Obligation Of Confidentiality:\nYou acknowledge and agree that during your employment with Company, Companies may disclose to you, or you may otherwise be exposed\nto, Companies' Confidential Information. Company agrees to provide such access to you and you agree to receive and hold the Confidential\nInformation on the terms and conditions set out herein. Except as set out below,\nC. Eugene Wright, III\nOct. 5, 2007\nPage 3 of 7\nyou will keep strictly confidential all Confidential Information and all other information that you acquire, see, or are informed of, as a direct or\nindirect consequence of your involvement with Companies in any capacity or that is revealed to you by Companies or is generated through\nnegotiations or other activities of third parties in connection with your involvement, in any capacity, with Companies' Business.\n(b) Non-Disclosure:\nUnless the authorized representative of Company first gives you written permission to do so, you will not:\n(i)\nuse or duplicate Confidential Information or recollections thereof;\n(ii)\ndisclose Confidential Information or recollections thereof to any third party;\nor\n(iii)\ntranslate or adapt any Confidentia Information or permit any Confidential Information to be used, copied, translated or adapted.\n(c) Taking Precautions:\nYou will take all reasonable precautions necessary or prudent to prevent material in your possession or control that contains or refers to\nConfidential Information from being discovered, used, or copied by third parties.\n(d) Companies' Ownership of Confidential Information:\nAs between you and Companies, all right, title and interest in and to the Confidential Information, whether or not created or developed by you,\nis and shall remain Companies' property.\n(e) Control of Confidential Information and Return of Information:\nAll physical materials produced or prepared by you containing Confidential Information, including designs, formulae, memoranda, test results\nand notes of experiments, drawings, plans, prototypes, samples, accounts, reports, data, financial statements or proforma estimates and any\nother materials prepared in the course of your responsibilities or for the benefit of Companies shall belong to Companies, and you will turn\nover possession to Company of all such items in your possession or control promptly when Company requests you to do SO.\n(f) Purpose of Use:\nYou will use Confidential Information only for purposes authorized or directed by Company or Companies and its officers, and you will not\nseek access to any Confidential Information that is not relevant to or necessary for those purposes.\n(g) Extent and Duration of Obligation:\nExcept as Company agrees In writing, your obligations of confidentiality under this Agreement shall continue for the longer of:\n(i)\nten (10) years after the termination of your employment with Company;\nand\nC. Eugene Wright, III\nOct. 5, 2007\nPage 4 of 7\n(ii)\nwith respect to particular items of Confidentia Information or material, for so long as those items are not in the public domain,\nbut your obligations will continue if those items enter the public domain as a consequence of a breach of this Agreement or any\nother wrongful or negligent act or omission by you.\nThe restrictions in this Agreement regarding confidentiality will not apply to information which is known by you prior to your employment\nwith Company, except to the extent that such information was disclosed to you under a confidentiality agreement with a prior employer or to\nthe extent that value can be derived by a competitor from the manner in which such information has been compiled by you or others during\nyour employment by Company.\n3.\nASSIGNMENT OF PROPRIETARY DEVELOPMENTS:\n(a) Full Disclosure of Proprietary Developments:\nYou agree to promptly inform, and make full disclosure of, any Proprietary Development to Company. If required by Company, you will\ndisclose in writing in a log book or such other form or device provided for such purpose by Company, the details of all Proprietary\nDevelopments that you are involved with or responsible for as an employee of Company.\n(b) Assignment of Proprietary Developments to Company:\nYou will assign, and do hereby irrevocably assign and transfer to Company or to Company's designee, your entire right, title and interest in\nand to all Proprietary Developments and any Confidential Information. Without limiting the foregoing, you agree to waive all legal and moral\nrights in such Proprietary Developments, and you agree that all Proprietary Developments to which you contribute in any way while an\nemployee of Company and within the scope of your employment shall be deemed to be "works made in the course of employment" and that\nCompany, or Company's designee, shall be deemed the owner thereof. To the extent that you may own or acquire legal title to any of such\nProprietary Developments, you hereby declare and confirm that such legal title is, and will be, held in a fiduciary capacity by you only as\ntrustee and agent for Company. You agree that Company, or Company's designee, will be the exclusive owner of all of your right title and\ninterest in and to each Proprietary Development throughout the world, including all Trade Secret, patent, copyright, trademark, industrial\ndesign\nand\nall\nother intellectual property rights of any kind therein. To the extent that any of the works prepared by or to which you contribute\nwithin the scope of your employment with Company, shall be deemed by a court of competent jurisdiction not to be a "work made for hire",\nthis\nAgreement shall operate as an irrevocable assignment by you to Company, or Company's designee, of all right, title and interest in and to\nsuch works, including, without limitation, all worldwide copyright interests therein, in perpetuity.\n(c) Notice:\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate you to assign or offer to assign to\nCompany any of your rights in an invention for which no equipment, supplies, facilities or Confidential Information of Company was used and\nwhich was developed entirely on your own time, unless: (1) the invention relates (a) directly to the business of Companies or (b) to\nCompanies' actual or demonstrably anticipated research or development, or (2) the invention results from any work performed by you for\nCompany. This Notice satisfies the written notice and other requirements of RCW 49.44.140.\n(d) Assistance with Proceedings:\nYou further agree at Company's request to assist in drafting of any description or specification of the Proprietary Development as may be\nrequired for any patent application and to assist with any opposition to, or intervention regarding, an application for any patent, copyright\nor\ntrademark\nC. Eugene Wright, III\nOct. 5, 2007\nPage 5 of 7\nor other proceedings relating to any Proprietary Developments. Without limiting the foregoing you agree to execute:\n(i)\nall instruments that Company may reasonably require to effect, protect, perfect, register, record or patent any Proprietary\nDevelopments or Confidential Information, or related rights, or Company's interest therein; and\n(ii)\nall papers that Company reasonably considers necessary or helpful in obtaining or maintaining such interests and rights during\nthe prosecution of applications thereon or during the conduct of any interference, litigation, opposition, or any other matter in\nconnection therewith;\nprovided that all expenses incident to such activities will 'be borne by Company.\nYour obligations under this Section will continue in perpetuity beyond any termination of your employment with Company, respecting any\nProprietary Developments created during your employment with Company, or any Proprietary Developments perfected or reduced to specific\nform after termination of your employment with Company, if the conception of the Proprietary Development arose during the time of your\nemployment with Company. You agree that Company's rights under this Section shall not be limited to the United States, but shall extend to\nevery country of the world.\n(e) Inventions and Improvements:\nYou further agree to treat all information relating to any Proprietary Development as Confidential Information owned by Company and you\nwill disclose same only to your immediate superior or as he or she may direct.\n(f) Publicity and Publication:\nWithout the prior written consent of the Chief Scientific Officer or the Chief Executive Officer of Company you will not make or give any\npublic announcements or press releases or statements to the public or the press regarding any Proprietary Developments, Confidential\nInformation or other information concerning Companies' Business. You also will not submit an abstract or publication for review or\npublication until you have prior written approval to do so from the Chief Scientific Officer of Company.\n4.\nMISCELLANEOUS:\n(a) Governing Law:\nThis Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania.\n(b) Equitable Remedies:\nYou acknowledge and agree that the restrictions contained in this Agreement, in view of the nature of the business in which the Companies are\nengaged, are reasonable and necessary in order to protect the legitimate interests of the Companies, and that any violation or threatened\nviolation thereof would result in irreparable injury to the Companies. You therefore agree that:\n(i)\nin the event of your violation or threatened violation of any of these restrictions, the Companies shall be entitled to obtain from\nany court of competent jurisdiction preliminary and permanent injunctive relief, or an appropriate decree of specific performance,\nwithout proof of actual loss or the need to post any bonds. You further\nC. Eugene Wright, III\nOct. 5, 2007\nPage 6 of 7\nagree that Companies shall be entitled to any and all other damages available at law and in equity, and an equitable accounting of\nall\nearnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other\nrights or remedies to which the Companies may be entitled.\n(ii)\nYou shall indemnify and hold harmless the Companies and their officers, directors, and employees from and against any and all\nliabilities, losses, costs and expenses (including but not limited to, reasonable attorneys' fees), damages and injuries resulting\nfrom, or in connection with, any material breach of any provision of this Agreement by you\n(c) Amendments:\nNo amendment, modification, supplement or other purported alteration of this Agreement shall be binding unless it is in writing and signed by\nyou and by Companies.\n(d) Binding Nature of Agreement:\nYou agree that this Agreement is binding on your personal representatives. You also agree that the covenants and provisions contained in this\nAgreement shall survive and continue to bind you following the termination of your employment with Company regardless of how your\nemployment is terminated.\n(e) Independent Legal Advice:\nAs this is an important agreement for you and for Companies containing significan undertakings by you, Companies urge you to seek\nindependent legal advice regarding this Agreement prior to signing.\n(f) Severability:\nIf any part or Section of this Agreement is determined by a Court of competent jurisdiction to be void or unenforceable in whole or in part,\nthen such void or unenforceable part or Section shall be severed, and shall not affect or impair the enforceability or validity of the balance of\nthe Section or any other part of this Agreement.\n(g)\nNo Waiver:\nNo waiver, delay, indulgence, or failure to act by Companies regarding any particular default or omission by you shall affect or impair any of\nCompanies' rights or remedies regarding that or any subsequent default or omission that is not expressly waived in writing.\n(h) No Other Obligations:\nYou represent, except as you have disclosed to Companies in writing on the date hereof, that you have no agreements with or obligations to\nothers with respect to the matters covered by this Agreement or concerning the Confidential Information that are in conflict with anything in\nthis Agreement.\nC. Eugene Wright, III\nOct. 5, 2007\nPage 7 of 7\nNEUROMED PHARMACEUTICALS INC.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nNEUROMED PHARMACEUTICALS LTD.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nACCEPTED AND AGREED TO THIS 11th DAY OF October, 2007. BY MY SIGNATURE BELOW, I AFFIRM THAT I HAVE READ AND\nUNDERSTAND THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AND AGREE TO BE BOUND BY THEM.\n/s/ C. Eugene Wright, III\nC. Eugene Wright, III	EX-10.48 15 dex1048.htm CONFIDENTIALITY AND ASSIGNMENT OF PROPRIETARY DEVELOPMENTS\nAGREEMENT\nExhibit 10.48\nLOGO\nOctober 5, 2007\nChristopher C. Gallen, MD, PhD\nTELEPHONE: 484.533.6900\nEmail: cgallen@neuromed.com\nSchedule “B”\nC. Eugene Wright, III\n16 Carhart Court\nPittstown, New Jersey 08867\nDear Eugene:\nRe: Confidentiality and Assignment of Proprietary Developments Agreement\nThe purpose of this exhibit is to describe and record the Agreement between you and Neuromed Pharmaceuticals Inc. (“Company”) concerning\nthe terms on which you, as an employee of Company, will protect and keep confidential certain information received during your employment with\nCompany and pursuant to which you agree to assign certain Proprietary Developments to Company.\nAs an essential element of the Company’s offer of employment to you, you hereby agree to be bound by the following:\n1. DEFINITIONS:\nIn this Agreement:\n(a) “Confidential Information” means the whole or any portion of any data or information about the business of the Companies that the\nCompanies protect from public disclosure. Confidential Information relates to Companies’ services, products, processes or techniques,\nas well as to the business, services, products, processes and techniques of Companies’ clients, regardless of whether or not that\ninformation is copyrighted, patented or patentable. Confidential Information shall include but not be limited to:\n(i) experimental techniques, proprietary assays, screening strategies and technologies, targets for drug discovery and chemical\nformulae;\n(ii) commercial and financial information concerning the corporate, scientific, and pharmaceutical research activities and plans of\nCompanies including any information regarding Companies’ costs, sales, income, salaries, customers, and all business\nopportunities or joint ventures considered by Companies, whether or not pursued; and\nC. Eugene Wright, III\nOct. 5, 2007\nPage2of7\n(iii) any and all confidential know-how, Trade Secrets, and any and all oral, written, electronic or other confidential communications\nregarding any Proprietary Developments.\n(b) “Company’s Business” means the specific biomedical research and development activities conducted by Companies including but not\nlimited to the discovery and development of novel calcium channel blockers for the purpose of treating diseases.\n(c) “Company” shall mean Neuromed Pharmaceuticals Inc. and any affiliated companies.\n(d) “Companies” shall mean the Company and Neuromed Pharmaceuticals Ltd. and any affiliated companies.\n(e) “Proprietary Development” means a development or developments including, without limitation:\n(i) enhancements, modifications, additions or other improvements to the intellectual property or assets owned, licensed, sold,\nmarketed or used by Companies in connection with Companies’ Business;\n(ii) trademarks, copyrights, trade names, business names, logos, design marks and other proprietary marks;\n(iii) inventions, devices, discoveries, concepts, ideas, formulae, know-how, processes, techniques, systems, methods and any\nimprovements, enhancements and modifications thereto, whether patented or not; developed, created, generated, contributed to or\nreduced to practice by you alone or jointly with others pursuant to your activities as an employee, director, officer or consultant of\nCompany and which results from tasks assigned to you by Company or which results from the use of the premises or property\n(including equipment, supplies or Confidential Information) owned, leased or licensed by Companies and which reasonably\nrelates to the Companies Business, or which results from or relates to working with Companies’ clients, either directly or\nindirectly.\n(f) “Trade Secret(s)” shall mean any information falling under the definition of a Trade Secret pursuant to the Uniform Trade Secrets Act or,\nif applicable, the version thereof adopted by Pennsylvania. Trade Secrets include, but are not limited to, any useful process, machine or\nother device or composition of matter which is new and which is being used or studied by Companies and is not described in a patent or\ndescribed in any literature already published and distributed externally by Companies; the source code or algorithms of any software\ndeveloped or owned by Companies; any formula, plan, tool, machine, process or method employed by Companies, whether patentable\nor not; business plans and marketing concepts of Companies; marketing or sales information of Companies; financial information or\nprojections regarding Companies; financial, pricing and/or credit information regarding clients or vendors of Companies, and internal\npolicies and procedures of Companies.\n2. CONFIDENTIALITY:\n(a) Basic Obligation Of Confidentiality:\nYou acknowledge and agree that during your employment with Company, Companies may disclose to you, or you may otherwise be exposed\nto, Companies’ Confidential Information. Company agrees to provide such access to you and you agree to receive and hold the Confidential\nInformation on the terms and conditions set out herein. Except as set out below,\nC. Eugene Wright, III\nOct. 5, 2007\nPage3of7\nyou will keep strictly confidential all Confidential Information and all other information that you acquire, see, or are informed of, as a direct or\nindirect consequence of your involvement with Companies in any capacity or that is revealed to you by Companies or is generated through\nnegotiations or other activities of third parties in connection with your involvement, in any capacity, with Companies’ Business.\n(b) Non-Disclosure:\nUnless the authorized representative of Company first gives you written permission to do so, you will not:\n(i) use or duplicate Confidential Information or recollections thereof;\n(ii) disclose Confidential Information or recollections thereof to any third party;\nor\n(iii) translate or adapt any Confidential Information or permit any Confidential Information to be used, copied, translated or adapted.\n(c) Taking Precautions:\nYou will take all reasonable precautions necessary or prudent to prevent material in your possession or control that contains or refers to\nConfidential Information from being discovered, used, or copied by third parties.\n(d) Companies’ Ownership of Confidential Information:\nAs between you and Companies, all right, title and interest in and to the Confidential Information, whether or not created or developed by you,\nis and shall remain Companies’ property.\n(e) Control of Confidential Information and Return of Information:\nAll physical materials produced or prepared by you containing Confidential Information, including designs, formulae, memoranda, test results\nand notes of experiments, drawings, plans, prototypes, samples, accounts, reports, data, financial statements or proforma estimates and any\nother materials prepared in the course of your responsibilities or for the benefit of Companies shall belong to Companies, and you will turn\nover possession to Company of all such items in your possession or control promptly when Company requests you to do so.\n(f) Purpose of Use:\nYou will use Confidential Information only for purposes authorized or directed by Company or Companies and its officers, and you will not\nseek access to any Confidential Information that is not relevant to or necessary for those purposes.\n(g) Extent and Duration of Obligation:\nExcept as Company agrees In writing, your obligations of confidentiality under this Agreement shall continue for the longer of:\n(i) ten (10) years after the termination of your employment with Company;\nand\nC. Eugene Wright, III\nOct. 5, 2007\nPage4of7\n(ii) with respect to particular items of Confidential Information or material, for so long as those items are not in the public domain,\nbut your obligations will continue if those items enter the public domain as a consequence of a breach of this Agreement or any\nother wrongful or negligent act or omission by you.\nThe restrictions in this Agreement regarding confidentiality will not apply to information which is known by you prior to your employment\nwith Company, except to the extent that such information was disclosed to you under a confidentiality agreement with a prior employer or to\nthe extent that value can be derived by a competitor from the manner in which such information has been compiled by you or others during\nyour employment by Company.\n3. ASSIGNMENT OF PROPRIETARY DEVELOPMENTS:\n(a) Full Disclosure of Proprietary Developments:\nYou agree to promptly inform, and make full disclosure of, any Proprietary Development to Company. If required by Company, you will\ndisclose in writing in a log book or such other form or device provided for such purpose by Company, the details of all Proprietary\nDevelopments that you are involved with or responsible for as an employee of Company.\n(b) Assignment of Proprietary Developments to Company:\nYou will assign, and do hereby irrevocably assign and transfer to Company or to Company’s designee, your entire right, title and interest in\nand to all Proprietary Developments and any Confidential Information. Without limiting the foregoing, you agree to waive all legal and moral\nrights in such Proprietary Developments, and you agree that all Proprietary Developments to which you contribute in any way while an\nemployee of Company and within the scope of your employment shall be deemed to be “works made in the course of employment” and that\nCompany, or Company’s designee, shall be deemed the owner thereof. To the extent that you may own or acquire legal title to any of such\nProprietary Developments, you hereby declare and confirm that such legal title is, and will be, held in a fiduciary capacity by you only as\ntrustee and agent for Company. You agree that Company, or Company’s designee, will be the exclusive owner of all of your right title and\ninterest in and to each Proprietary Development throughout the world, including all Trade Secret, patent, copyright, trademark, industrial\ndesign and all other intellectual property rights of any kind therein. To the extent that any of the works prepared by or to which you contribute\nwithin the scope of your employment with Company, shall be deemed by a court of competent jurisdiction not to be a “work made for hire”,\nthis Agreement shall operate as an irrevocable assignment by you to Company, or Company’s designee, of all right, title and interest in and to\nsuch works, including, without limitation, all worldwide copyright interests therein, in perpetuity.\n(c) Notice:\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate you to assign or offer to assign to\nCompany any of your rights in an invention for which no equipment, supplies, facilities or Confidential Information of Company was used and\nwhich was developed entirely on your own time, unless: (1) the invention relates (a) directly to the business of Companies or (b) to\nCompanies’ actual or demonstrably anticipated research or development, or (2) the invention results from any work performed by you for\nCompany. This Notice satisfies the written notice and other requirements of RCW 49.44.140.\n(d) Assistance with Proceedings:\nYou further agree at Company’s request to assist in drafting of any description or specification of the Proprietary Development as may be\nrequired for any patent application and to assist with any opposition to, or intervention regarding, an application for any patent, copyright or\ntrademark\nC. Eugene Wright, III\nOct. 5, 2007\nPage5of7\nor other proceedings relating to any Proprietary Developments. Without limiting the foregoing you agree to execute:\n(i) all instruments that Company may reasonably require to effect, protect, perfect, register, record or patent any Proprietary\nDevelopments or Confidential Information, or related rights, or Company’s interest therein; and\n(ii) all papers that Company reasonably considers necessary or helpful in obtaining or maintaining such interests and rights during\nthe prosecution of applications thereon or during the conduct of any interference, litigation, opposition, or any other matter in\nconnection therewith;\nprovided that all expenses incident to such activities will `be borne by Company.\nYour obligations under this Section will continue in perpetuity beyond any termination of your employment with Company, respecting any\nProprietary Developments created during your employment with Company, or any Proprietary Developments perfected or reduced to specific\nform after termination of your employment with Company, if the conception of the Proprietary Development arose during the time of your\nemployment with Company. You agree that Company’s rights under this Section shall not be limited to the United States, but shall extend to\nevery country of the world.\n(e) Inventions and Improvements:\nYou further agree to treat all information relating to any Proprietary Development as Confidential Information owned by Company and you\nwill disclose same only to your immediate superior or as he or she may direct.\n(f) Publicity and Publication:\nWithout the prior written consent of the Chief Scientific Officer or the Chief Executive Officer of Company you will not make or give any\npublic announcements or press releases or statements to the public or the press regarding any Proprietary Developments, Confidential\nInformation or other information concerning Companies’ Business. You also will not submit an abstract or publication for review or\npublication until you have prior written approval to do so from the Chief Scientific Officer of Company.\n4. MISCELLANEOUS:\n(a) Governing Law:\nThis Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania.\n(b) Equitable Remedies:\nYou acknowledge and agree that the restrictions contained in this Agreement, in view of the nature of the business in which the Companies are\nengaged, are reasonable and necessary in order to protect the legitimate interests of the Companies, and that any violation or threatened\nviolation thereof would result in irreparable injury to the Companies. You therefore agree that:\n(i) in the event of your violation or threatened violation of any of these restrictions, the Companies shall be entitled to obtain from\nany court of competent jurisdiction preliminary and permanent injunctive relief, or an appropriate decree of specific performance,\nwithout proof of actual loss or the need to post any bonds. You further\nC. Eugene Wright, III\nOct. 5, 2007\nPage6of7\nagree that Companies shall be entitled to any and all other damages available at law and in equity, and an equitable accounting of\nall earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other\nrights or remedies to which the Companies may be entitled.\n(ii) You shall indemnify and hold harmless the Companies and their officers, directors, and employees from and against any and all\nliabilities, losses, costs and expenses (including but not limited to, reasonable attorneys’ fees), damages and injuries resulting\nfrom, or in connection with, any material breach of any provision of this Agreement by you.\n(c) Amendments:\nNo amendment, modification, supplement or other purported alteration of this Agreement shall be binding unless it is in writing and signed by\nyou and by Companies.\n(d) Binding Nature of Agreement:\nYou agree that this Agreement is binding on your personal representatives. You also agree that the covenants and provisions contained in this\nAgreement shall survive and continue to bind you following the termination of your employment with Company regardless of how your\nemployment is terminated.\n(e) Independent Legal Advice:\nAs this is an important agreement for you and for Companies containing significant undertakings by you, Companies urge you to seek\nindependent legal advice regarding this Agreement prior to signing.\n(f) Severability:\nIf any part or Section of this Agreement is determined by a Court of competent jurisdiction to be void or unenforceable in whole or in part,\nthen such void or unenforceable part or Section shall be severed, and shall not affect or impair the enforceability or validity of the balance of\nthe Section or any other part of this Agreement.\n(g) No Waiver:\nNo waiver, delay, indulgence, or failure to act by Companies regarding any particular default or omission by you shall affect or impair any of\nCompanies’ rights or remedies regarding that or any subsequent default or omission that is not expressly waived in writing.\n(h) No Other Obligations:\nYou represent, except as you have disclosed to Companies in writing on the date hereof, that you have no agreements with or obligations to\nothers with respect to the matters covered by this Agreement or concerning the Confidential Information that are in conflict with anything in\nthis Agreement.\nC. Eugene Wright, III\nOct. 5, 2007\nPage7of7\nNEUROMED PHARMACEUTICALS INC.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nNEUROMED PHARMACEUTICALS LTD.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nACCEPTED AND AGREED TO THIS 11 DAY OF October, 2007. BY MY SIGNATURE BELOW, I AFFIRM THAT I HAVE READ AND\nUNDERSTAND THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AND AGREE TO BE BOUND BY THEM.\n/s/ C. Eugene Wright, III\nC. Eugene Wright, III\nth
5b070e9583099dfdcddc9c9c811b7d44.pdf	effective_date jurisdiction party term	EX-10.2 3 d124569dex102.htm EX-10.2\nExhibit 10.2\nDIRECTOR CONFIDENTIALITY AGREEMENT\nTHIS DIRECTOR CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of May 5, 2016 and is effective upon\nthe date hereof, by and between Endo International plc, a public limited company incorporated under the laws of Ireland (“Endo”), Todd B.\nSisitsky, an individual (“Sisitsky”), and TPG Global, LLC (“TPG” or, either Sisitsky or TPG, a “receiving party”).\nWHEREAS, concurrently with the execution of this Agreement, Sisitsky is being appointed to serve on the Board of Directors of Endo;\nand\nWHEREAS, in connection with Sisitsky’s appointment, the parties may disclose to each other certain non-public confidential and\nproprietary information pertaining to such possible relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its Affiliates to the other party, or one of its Affiliates, whether set forth orally or in writing which may\nrelate to among other things, their respective business interests, technical information, clinical data, product specifications, product\ndevelopment plans and ideas, marketing plans and ideas, manufacturing information, financial information, strategic considerations or\nbusiness operations. Endo Confidential Information may also include non-public and proprietary information of its Affiliates.\nFor purposes of this Agreement, “Affiliate” means with respect to a particular party, a person, corporation or partnership or other entity that\ncontrols, is controlled by or under common control with such party. For the purposes of this definition, “control” (including the correlative\nmeaning, the terms “controlled by” or “under common control with”) means the actual power, either directly or indirectly through one or\nmore intermediaries, to direct or cause the direction of the management and policies of such entity, whether by ownership of fifty percent\n(50%) or more of the voting stock of such entity, or by contract or otherwise.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain;\n(b) information that, after disclosure, becomes part of the public domain by publication or otherwise; provided that such publication is\nnot in violation of this Agreement or, to the receiving party’s knowledge, any other confidentiality agreement to which Sisitsky, TPG\nor any of their respective Affiliates is party;\nDirector Confidentiality Agreement\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d) information that the receiving party lawfully received from a third party; provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction; provided, however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n3. Subject to paragraph 4, the receiving party and the TPG Recipients (as defined below) shall not use Confidential Information of the\ndisclosing party for any purpose other than for the purpose of Sisitsky’s service as a director of Endo; provided, however, that Sisitsky and\nthe TPG Recipients (as defined below) shall be entitled, subject to compliance with applicable law, to use Confidential Information for\npurposes of monitoring, managing and making investment, voting, governance or other decisions relating to TPG’s and its Affiliates’\ninvestment in Endo.\n4. The receiving party will not disclose any such Confidential Information to any person; provided, however, that Confidential Information\nmay be disclosed by Sisitsky or any TPG Recipient to (i) in the case of Confidential Information that is financial performance information\nregarding the Company, any employees, attorneys, independent contractors designated as senior advisors, directors and officers of TPG or\nits Affiliates (excluding portfolio companies) (the “TPG Recipients”) and (ii) in all cases, to TPG Recipients who serve on the investment\ncommittee of TPG Capital or to any partners, employees and senior advisors of TPG or any of its Affiliates that need to know such\ninformation for the purposes set forth in paragraph 3, in the case of each of clauses (i) and (ii) so long as such TPG Recipients have\nrelevant knowledge or expertise and are bound by confidentiality obligations at least as restrictive as those contained in this Agreement.\nTPG represents and warrants that it has instituted reasonable procedures to ensure compliance with the foregoing restrictions on disclosures\nto TPG Recipients and agrees that it will reasonably cooperate with Endo to institute further procedures that are necessary or appropriate to\nprotect Confidential Information of Endo.\n2\nDirector Confidentiality Agreement\n5. Upon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to\nthe disclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this\nAgreement, shall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other\ndocuments which reflect any of the Confidential Information. Notwithstanding the foregoing provision, the receiving party shall not be\nrequired to delete the Confidential Information from back-up archival storage and may retain one (1) copy of Confidential Information in\nits confidential files solely for record keeping and compliance purposes.\n6. Title to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in\nthe disclosing party or any of its Affiliates. Nothing herein shall be construed as granting any license or option, in favor of the receiving\nparty, in such Confidential Information under any patent, copyright and/or any other rights now or hereafter held by the disclosing party or\nany Affiliate of the disclosing party in or as a result of such Confidential Information other than as specifically agreed upon by the parties.\n7. Each receiving party acknowledges that, by virtue of the examination of the Confidential Information in accordance with the terms of this\nAgreement, it and its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers may\nhave access to material, non-public information, and it is aware (and will so advise its Affiliates, employees, attorneys, independent\ncontractors designated as senior advisors, directors and officers who are informed as to the matters which are subject to this Agreement and\nwho receive Confidential Information) that applicable securities laws, including United States federal and state securities laws, generally\nprohibit any person who has material, non-public information concerning a publicly-traded company from purchasing or selling any\nsecurities of such company or from communicating such information to any other person or entity under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities. Each receiving party agrees that it will not, and will\ndirect its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers who have received\nConfidential Information not to, use or permit any third party to use any Confidential Information in contravention of the United States\nfederal and state securities laws, including the Securities Exchange Act of 1934, as amended, including the rules and regulations\npromulgated thereunder.\n8. The execution and performance of this Agreement does not obligate the parties, or any of the parties’ Affiliates, to enter into any other\nagreement or to perform any obligations other than as specified herein.\n3\nDirector Confidentiality Agreement\n9. The receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party or its Affiliates, and that any breach or threatened breach of this\nAgreement by the receiving party will entitle the disclosing party or any of its Affiliates to seek injunctive relief, in addition to any other\nlegal remedies available to it, in any court of competent jurisdiction.\n10. No failure or delay by the disclosing party or any of its Affiliates in exercising any right, power, or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of\nConfidential Information (including the Confidentiality Agreement by and among Endo Pharmaceuticals, Inc., Sisitsky and TPG, dated\nApril 25, 2016), whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of\nthe Commonwealth of Pennsylvania without reference to its conflict of laws rules. This Agreement may not be amended or in any manner\nmodified except by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to\nbe unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the\nlimited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\n12. This Agreement shall terminate and all obligations and rights hereunder shall expire upon the first anniversary of the first date on which\nSisitsky is no longer a member of the board of directors of Endo.\n13. This Agreement shall be binding on each party’s successors and assigns.\n14. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute\nthe same agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or\nby any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as\nphysical delivery of the paper document bearing the original signature.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO INTERNATIONAL PLC\nBy: /s/ Rajiv De Silva\nBy: /s/ Todd B. Sisitsky\nName: Rajiv De Silva\nTodd B. Sisitsky\nTitle: President and CEO\nTPG GLOBAL, LLC\nBy: /s/ Clive Bode\nName: Clive Bode\nTitle: Vice President\n[Signature Page to Director Confidentiality Agreement]	EX-10.2 3 d124569dex102.htm EX-10.2\nExhibit 10.2\nDIRECTOR CONFIDENTIALITY AGREEMENT\nTHIS DIRECTOR CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of May 5, 2016 and is effective upon\nthe date hereof, by and between Endo International plc, a public limited company incorporated under the laws of Ireland (“Endo”), Todd B.\nSisitsky, an individual (“Sisitsky”), and TPG Global, LLC (“TPG” or, either Sisitsky or TPG, a “receiving party”).\n \n \n \nWHEREAS, concurrently with the execution of this Agreement, Sisitsky is being appointed to serve on the Board of Directors of Endo;\nand\nWHEREAS, in connection with Sisitsky’s appointment, the parties may disclose to each other certain non-public confidential and\nproprietary information pertaining to such possible relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its Affiliates to the other party, or one of its Affiliates, whether set forth orally or in writing which may\nrelate to among other things, their respective business interests, technical information, clinical data, product specifications, product\ndevelopment plans and ideas, marketing plans and ideas, manufacturing information, financial information, strategic considerations or\nbusiness operations. Endo Confidential Information may also include non-public and proprietary information of its Affiliates.\nFor purposes of this Agreement, “Affiliate” means with respect to a particular party, a person, corporation or partnership or other entity that\ncontrols, is controlled by or under common control with such party. For the purposes of this definition, “control” (including the correlative\nmeaning, the terms “controlled by” or “under common control with”) means the actual power, either directly or indirectly through one or\nmore intermediaries, to direct or cause the direction of the management and policies of such entity, whether by ownership of fifty percent\n(50%) or more of the voting stock of such entity, or by contract or otherwise.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain;\n(b) information that, after disclosure, becomes part of the public domain by publication or otherwise; provided that such publication is\nnot in violation of this Agreement or, to the receiving party’s knowledge, any other confidentiality agreement to which Sisitsky, TPG\nor any of their respective Affiliates is party;\nDirector Confidentiality Agreement\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d) information that the receiving party lawfully received from a third party; provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction; provided, however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\nSubject to paragraph 4, the receiving party and the TPG Recipients (as defined below) shall not use Confidential Information of the\ndisclosing party for any purpose other than for the purpose of Sisitsky’s service as a director of Endo; provided, however, that Sisitsky and\nthe TPG Recipients (as defined below) shall be entitled, subject to compliance with applicable law, to use Confidential Information for\npurposes of monitoring, managing and making investment, voting, governance or other decisions relating to TPG’s and its Affiliates’\ninvestment in Endo.\nThe receiving party will not disclose any such Confidential Information to any person; provided, however, that Confidential Information\nmay be disclosed by Sisitsky or any TPG Recipient to (i) in the case of Confidential Information that is financial performance information\nregarding the Company, any employees, attorneys, independent contractors designated as senior advisors, directors and officers of TPG or\nits Affiliates (excluding portfolio companies) (the “TPG Recipients”) and (ii) in all cases, to TPG Recipients who serve on the investment\ncommittee of TPG Capital or to any partners, employees and senior advisors of TPG or any of its Affiliates that need to know such\ninformation for the purposes set forth in paragraph 3, in the case of each of clauses (i) and (ii) so long as such TPG Recipients have\nrelevant knowledge or expertise and are bound by confidentiality obligations at least as restrictive as those contained in this Agreement.\nTPG represents and warrants that it has instituted reasonable procedures to ensure compliance with the foregoing restrictions on disclosures\nto TPG Recipients and agrees that it will reasonably cooperate with Endo to institute further procedures that are necessary or appropriate to\nprotect Confidential Information of Endo.\nDirector Confidentiality Agreement\nUpon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to\nthe disclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this\nAgreement, shall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other\ndocuments which reflect any of the Confidential Information. Notwithstanding the foregoing provision, the receiving party shall not be\nrequired to delete the Confidential Information from back-up archival storage and may retain one (1) copy of Confidential Information in\nits confidential files solely for record keeping and compliance purposes.\nTitle to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in\nthe disclosing party or any of its Affiliates. Nothing herein shall be construed as granting any license or option, in favor of the receiving\nparty, in such Confidential Information under any patent, copyright and/or any other rights now or hereafter held by the disclosing party or\nany Affiliate of the disclosing party in or as a result of such Confidential Information other than as specifically agreed upon by the parties.\nEach receiving party acknowledges that, by virtue of the examination of the Confidential Information in accordance with the terms of this\nAgreement, it and its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers may\nhave access to material, non-public information, and it is aware (and will so advise its Affiliates, employees, attorneys, independent\ncontractors designated as senior advisors, directors and officers who are informed as to the matters which are subject to this Agreement and\nwho receive Confidential Information) that applicable securities laws, including United States federal and state securities laws, generally\nprohibit any person who has material, non-public information concerning a publicly-traded company from purchasing or selling any\nsecurities of such company or from communicating such information to any other person or entity under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities. Each receiving party agrees that it will not, and will\ndirect its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers who have received\nConfidential Information not to, use or permit any third party to use any Confidential Information in contravention of the United States\nfederal and state securities laws, including the Securities Exchange Act of 1934, as amended, including the rules and regulations\npromulgated thereunder.\nThe execution and performance of this Agreement does not obligate the parties, or any of the parties’ Affiliates, to enter into any other\nagreement or to perform any obligations other than as specified herein.\n3\n10. 11. 12. 13. 14. Director Confidentiality Agreement\nThe receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party or its Affiliates, and that any breach or threatened breach of this\nAgreement by the receiving party will entitle the disclosing party or any of its Affiliates to seek injunctive relief, in addition to any other\nlegal remedies available to it, in any court of competent jurisdiction.\nNo failure or delay by the disclosing party or any of its Affiliates in exercising any right, power, or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\nThe parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of\nConfidential Information (including the Confidentiality Agreement by and among Endo Pharmaceuticals, Inc., Sisitsky and TPG, dated\nApril 25, 2016), whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of\nthe Commonwealth of Pennsylvania without reference to its conflict of laws rules. This Agreement may not be amended or in any manner\nmodified except by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to\nbe unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the\nlimited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\nThis Agreement shall terminate and all obligations and rights hereunder shall expire upon the first anniversary of the first date on which\nSisitsky is no longer a member of the board of directors of Endo.\nThis Agreement shall be binding on each party’s successors and assigns.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute\nthe same agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or\nby any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as\nphysical delivery of the paper document bearing the original signature.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO INTERNATIONAL PLC\nBy:  /s/ Rajiv De Silva By: /s/ Todd B. Sisitsky\nName: Rajiv De Silva Todd B. Sisitsky\nTitle: President and CEO\nTPG GLOBAL, LL.C\nBy:  /s/ Clive Bode\nName: Clive Bode\nTitle: Vice President\n[Signature Page to Director Confidentiality Agreement]	EX-10.2 3 d124569dex102.htm EX-10.2\nExhibit 10.2\nDIRECTOR CONFIDENTIALITY AGREEMENT\nTHIS DIRECTOR CONFIDENTIALITY AGREEMENT (this "Agreement") is entered into as of May 5, 2016 and is effective upon\nthe date hereof, by and between Endo International plc, a public limited company incorporated under the laws of Ireland ("Endo"), Todd B.\nSisitsky, an individual ("Sisitsky."), and TPG Global, LLC ("TPG" or, either Sisitsky or TPG, a "receiving.party.")\nWHEREAS, concurrently with the execution of this Agreement, Sisitsky is being appointed to serve on the Board of Directors of Endo;\nand\nWHEREAS, in connection with Sisitsky's appointment, the parties may disclose to each other certain non-public confidential and\nproprietary information pertaining to such possible relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1.\nFor purposes of this Agreement, "Confidential Information" shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its Affiliates to the other party, or one of its Affiliates, whether set forth orally or in writing which may\nrelate to among other things, their respective business interests, technical information, clinical data, product specifications, product\ndevelopment plans and ideas, marketing plans and ideas, manufacturing information, financial information, strategic considerations\nor\nbusiness operations. Endo Confidential Information may also include non-public and proprietary information of its Affiliates.\nFor purposes of this Agreement, "Affiliate" means with respect to a particular party, a person, corporation or partnership or other entity that\ncontrols, is controlled by or under common control with such party. For the purposes of this definition, "control" (including the correlative\nmeaning, the terms "controlled by" or "under common control with") means the actual power, either directly or indirectly through one or\nmore intermediaries, to direct or cause the direction of the management and policies of such entity, whether by ownership of fifty percent\n(50%) or more of the voting stock of such entity, or by contract or otherwise.\n2.\nThe parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain;\n(b)\ninformation that, after disclosure, becomes part of the public domain by publication or otherwise; provided that such publication is\nnot in violation of this Agreement or, to the receiving party's knowledge, any other confidentiality agreement to which Sisitsky, TPG\nor any of their respective Affiliates is party;\nDirector Confidentiality Agreement\n(c)\ninformation that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d)\ninformation that the receiving party lawfully received from a third party; provided however, that such third party was not obligated to\nhold such information in confidence;\n(e)\ninformation that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction; provided, however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n3.\nSubject to paragraph 4, the receiving party and the TPG Recipients (as defined below) shall not use Confidential Information of the\ndisclosing party for any purpose other than for the purpose of Sisitsky's service as a director of Endo; provided, however, that Sisitsky and\nthe TPG Recipients (as defined below) shall be entitled, subject to compliance with applicable law, to use Confidential Information for\npurposes of monitoring, managing and making investment, voting, governance or other decisions relating to TPG'S and its Affiliates'\ninvestment in Endo.\n4.\nThe receiving party will not disclose any such Confidential Information to any person; provided, however, that Confidential Information\nmay be disclosed by Sisitsky or any TPG Recipient to (i) in the case of Confidential Information that is financial performance information\nregarding the Company, any employees, attorneys, independent contractors designated as senior advisors, directors and officers of TPG or\nits Affiliates (excluding portfolio companies) (the "TPG Recipients") and (ii) in all cases, to TPG Recipients who serve on the investment\ncommittee of TPG Capital or to any partners, employees and senior advisors of TPG or any of its Affiliates that need to know such\ninformation for the purposes set forth in paragraph 3, in the case of each of clauses (i) and (ii) so long as such TPG Recipients have\nrelevant knowledge or expertise and are bound by confidentiality obligations at least as restrictive as those contained in this Agreement.\nTPG represents and warrants that it has instituted reasonable procedures to ensure compliance with the foregoing restrictions on disclosures\nto TPG Recipients and agrees that it will reasonably cooperate with Endo to institute further procedures that are necessary or appropriate to\nprotect Confidential Information of Endo.\n2\nDirector Confidentiality Agreement\n5.\nUpon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party's\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to\nthe disclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this\nAgreement, shall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other\ndocuments which reflect any of the Confidential Information. Notwithstanding the foregoing provision, the receiving party shall not be\nrequired to delete the Confidential Information from back-up archival storage and may retain one (1) copy of Confidential Information\nin\nits confidential files solely for record keeping and compliance purposes.\n6.\nTitle to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in\nthe disclosing party or any of its Affiliates. Nothing herein shall be construed as granting any license or option, in favor of the receiving\nparty, in such Confidential Information under any patent, copyright and/or any other rights now or hereafter held by the disclosing party or\nany Affiliate of the disclosing party in or as a result of such Confidential Information other than as specifically agreed upon by the parties.\n7.\nEach receiving party acknowledges that, by virtue of the examination of the Confidential Information in accordance with the terms of this\nAgreement, it and its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers may\nhave access to material, non-public information, and it is aware (and will so advise its Affiliates, employees, attorneys, independent\ncontractors designated as senior advisors, directors and officers who are informed as to the matters which are subject to this Agreement and\nwho receive Confidential Information) that applicable securities laws, including United States federal and state securities laws, generally\nprohibit any person who has material, non-public information concerning a publicly-traded company from purchasing or selling any\nsecurities of such company or from communicating such information to any other person or entity under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities. Each receiving party agrees that it will not, and will\ndirect its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers who have received\nConfidential Information not to, use or permit any third party to use any Confidential Information in contravention of the United States\nfederal and state securities laws, including the Securities Exchange Act of 1934, as amended, including the rules and regulations\npromulgated thereunder.\n8.\nThe execution and performance of this Agreement does not obligate the parties, or any of the parties' Affiliates, to enter into any other\nagreement or to perform any obligations other than as specified herein.\n3\nDirector Confidentiality Agreement\n9.\nThe receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party or its Affiliates, and that any breach or threatened breach of this\nAgreement by the receiving party will entitle the disclosing party or any of its Affiliates to seek injunctive relief, in addition to any\nother\nlegal remedies available to it, in any court of competent jurisdiction.\n10. No failure or delay by the disclosing party or any of its Affiliates in exercising any right, power, or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of\nConfidential Information (including the Confidentiality Agreement by and among Endo Pharmaceuticals, Inc., Sisitsky and TPG, dated\nApril 25, 2016), whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of\nthe Commonwealth of Pennsylvania without reference to its conflict of laws rules. This Agreement may not be amended or in any manner\nmodified except by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to\nbe unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the\nlimited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\n12.\nThis Agreement shall terminate and all obligations and rights hereunder shall expire upon the first anniversary of the first date on which\nSisitsky is no longer a member of the board of directors of Endo.\n13.\nThis Agreement shall be binding on each party's successors and assigns.\n14. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute\nthe same agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in "portable document format" (".pdf"), or\nby any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as\nphysical delivery of the paper document bearing the original signature.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO INTERNATIONAL PLC\nBy:\n/s/ Rajiv De Silva\nBy: /s/ Todd B. Sisitsky\nName: Rajiv De Silva\nTodd B. Sisitsky\nTitle: President and CEO\nTPG GLOBAL, LLC\nBy:\n/s/ Clive Bode\nName: Clive Bode\nTitle: Vice President\n[Signature Page to Director Confidentiality Agreement]	EX-10.2 3 d124569dex102.htm EX-10.2\nExhibit 10.2\nDIRECTOR CONFIDENTIALITY AGREEMENT\nTHIS DIRECTOR CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of May 5, 2016 and is effective upon\nthe date hereof, by and between Endo International plc, a public limited company incorporated under the laws of Ireland (“Endo”), Todd B.\nSisitsky, an individual (“Sisitsky”), and TPG Global, LLC (“TPG” or, either Sisitsky or TPG, a “receiving party”).\nWHEREAS, concurrently with the execution of this Agreement, Sisitsky is being appointed to serve on the Board of Directors of Endo;\nand\nWHEREAS, in connection with Sisitsky’s appointment, the parties may disclose to each other certain non-public confidential and\nproprietary information pertaining to such possible relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its Affiliates to the other party, or one of its Affiliates, whether set forth orally or in writing which may\nrelate to among other things, their respective business interests, technical information, clinical data, product specifications, product\ndevelopment plans and ideas, marketing plans and ideas, manufacturing information, financial information, strategic considerations or\nbusiness operations. Endo Confidential Information may also include non-public and proprietary information of its Affiliates.\nFor purposes of this Agreement, “Affiliate” means with respect to a particular party, a person, corporation or partnership or other entity that\ncontrols, is controlled by or under common control with such party. For the purposes of this definition, “control” (including the correlative\nmeaning, the terms “controlled by” or “under common control with”) means the actual power, either directly or indirectly through one or\nmore intermediaries, to direct or cause the direction of the management and policies of such entity, whether by ownership of fifty percent\n(50%) or more of the voting stock of such entity, or by contract or otherwise.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain;\n(b) information that, after disclosure, becomes part of the public domain by publication or otherwise; provided that such publication is\nnot in violation of this Agreement or, to the receiving party’s knowledge, any other confidentiality agreement to which Sisitsky, TPG\nor any of their respective Affiliates is party;\nDirector Confidentiality Agreement\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d) information that the receiving party lawfully received from a third party; provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction; provided, however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n3. Subject to paragraph 4, the receiving party and the TPG Recipients (as defined below) shall not use Confidential Information of the\ndisclosing party for any purpose other than for the purpose of Sisitsky’s service as a director of Endo; provided, however, that Sisitsky and\nthe TPG Recipients (as defined below) shall be entitled, subject to compliance with applicable law, to use Confidential Information for\npurposes of monitoring, managing and making investment, voting, governance or other decisions relating to TPG’s and its Affiliates’\ninvestment in Endo.\n4. The receiving party will not disclose any such Confidential Information to any person; provided, however, that Confidential Information\nmay be disclosed by Sisitsky or any TPG Recipient to (i) in the case of Confidential Information that is financial performance information\nregarding the Company, any employees, attorneys, independent contractors designated as senior advisors, directors and officers of TPG or\nits Affiliates (excluding portfolio companies) (the “TPG Recipients”) and (ii) in all cases, to TPG Recipients who serve on the investment\ncommittee of TPG Capital or to any partners, employees and senior advisors of TPG or any of its Affiliates that need to know such\ninformation for the purposes set forth in paragraph 3, in the case of each of clauses (i) and (ii) so long as such TPG Recipients have\nrelevant knowledge or expertise and are bound by confidentiality obligations at least as restrictive as those contained in this Agreement.\nTPG represents and warrants that it has instituted reasonable procedures to ensure compliance with the foregoing restrictions on disclosures\nto TPG Recipients and agrees that it will reasonably cooperate with Endo to institute further procedures that are necessary or appropriate to\nprotect Confidential Information of Endo.\n2\nDirector Confidentiality Agreement\n5. Upon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to\nthe disclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this\nAgreement, shall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other\ndocuments which reflect any of the Confidential Information. Notwithstanding the foregoing provision, the receiving party shall not be\nrequired to delete the Confidential Information from back-up archival storage and may retain one (1) copy of Confidential Information in\nits confidential files solely for record keeping and compliance purposes.\n6. Title to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in\nthe disclosing party or any of its Affiliates. Nothing herein shall be construed as granting any license or option, in favor of the receiving\nparty, in such Confidential Information under any patent, copyright and/or any other rights now or hereafter held by the disclosing party or\nany Affiliate of the disclosing party in or as a result of such Confidential Information other than as specifically agreed upon by the parties.\n7. Each receiving party acknowledges that, by virtue of the examination of the Confidential Information in accordance with the terms of this\nAgreement, it and its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers may\nhave access to material, non-public information, and it is aware (and will so advise its Affiliates, employees, attorneys, independent\ncontractors designated as senior advisors, directors and officers who are informed as to the matters which are subject to this Agreement and\nwho receive Confidential Information) that applicable securities laws, including United States federal and state securities laws, generally\nprohibit any person who has material, non-public information concerning a publicly-traded company from purchasing or selling any\nsecurities of such company or from communicating such information to any other person or entity under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities. Each receiving party agrees that it will not, and will\ndirect its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers who have received\nConfidential Information not to, use or permit any third party to use any Confidential Information in contravention of the United States\nfederal and state securities laws, including the Securities Exchange Act of 1934, as amended, including the rules and regulations\npromulgated thereunder.\n8. The execution and performance of this Agreement does not obligate the parties, or any of the parties’ Affiliates, to enter into any other\nagreement or to perform any obligations other than as specified herein.\n3\nDirector Confidentiality Agreement\n9. The receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party or its Affiliates, and that any breach or threatened breach of this\nAgreement by the receiving party will entitle the disclosing party or any of its Affiliates to seek injunctive relief, in addition to any other\nlegal remedies available to it, in any court of competent jurisdiction.\n10. No failure or delay by the disclosing party or any of its Affiliates in exercising any right, power, or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of\nConfidential Information (including the Confidentiality Agreement by and among Endo Pharmaceuticals, Inc., Sisitsky and TPG, dated\nApril 25, 2016), whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of\nthe Commonwealth of Pennsylvania without reference to its conflict of laws rules. This Agreement may not be amended or in any manner\nmodified except by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to\nbe unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the\nlimited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\n12. This Agreement shall terminate and all obligations and rights hereunder shall expire upon the first anniversary of the first date on which\nSisitsky is no longer a member of the board of directors of Endo.\n13. This Agreement shall be binding on each party’s successors and assigns.\n14. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute\nthe same agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or\nby any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as\nphysical delivery of the paper document bearing the original signature.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO INTERNATIONAL PLC\nBy: /s/ Rajiv De Silva\nBy: /s/ Todd B. Sisitsky\nName: Rajiv De Silva\nTodd B. Sisitsky\nTitle: President and CEO\nTPG GLOBAL, LLC\nBy: /s/ Clive Bode\nName: Clive Bode\nTitle: Vice President\n[Signature Page to Director Confidentiality Agreement]
5d18471dc0cb8c824fe86d5899aeb24b.pdf	effective_date jurisdiction party term	EX-10.29 9 dex1029.htm CONFIDENTIALITY, NON-INTERFERENCE AND INVENTION ASSIGNMENT\nAGREEMENT\nExhibit 10.29\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, Interactive Data Corporation, a Delaware corporation (the\n“Company”), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the\nCompany, I agree to the following:\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access to information\nabout the Company and its direct and indirect parents and subsidiaries (collectively, the “Company Group”) and that my employment with the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my employment with the Company and for the ten (10) year period following my termination of my\nemployment with the Company Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to\ndisclose to any person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or\ncreate. I further agree not to make copies of such Confidential Information except as authorized by the Company. I understand that “Confidential\nInformation” means information that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire,\ncreate, compile, discover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company\nwishes to maintain as confidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that\nrelates to the actual or anticipated business and/or products, research, or development of the Company, or to the Company’s technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company’s products or services and\nmarkets, customer lists, and customers (including, but not limited to, customers of the Company on whom I called or with whom I may become\nacquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs, drawings,\nengineering, hardware configuration information, marketing, finances, and other business information disclosed by the Company either directly or\nindirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing,\nConfidential Information shall not include (i) any of the foregoing items that have become publicly known through no unauthorized disclosure by me\nor others who were under confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by,\nany governmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the\nCompany Group may seek an appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (the “Non-Interference Agreement”).\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference Agreement as an\nemployee of the Company has not breached and will not breach any agreement to keep in confidence proprietary information,\nknowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my employment with the Company, and I will\nnot disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or confidential or\nproprietary information or material I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\nSection 2. Developments.\n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with particularity all\ndevelopments, original works of authorship, developments, improvements, and trade secrets that I can demonstrate were created or owned by me\nprior to the commencement of my employment (collectively referred to as “Prior Developments”), which belong solely to me or belong to me jointly\nwith another, that relate in any way to any of the actual or proposed businesses, products, or research and development of any member of the\nCompany Group, and that are not assigned to the Company hereunder, or if no such list is attached, I represent that there are no such Prior\nDevelopments. If, during any period during which I perform or performed services for the Company Group both before or after the date hereof (the\n“Assignment Period”), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any other capacity, I incorporate\n(or have incorporated) into a Company Group product or process a Prior Development owned by me or in which I have an interest, I hereby grant the\nCompany, and the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide license (with the right to\nsublicense) to make, have made, copy, modify, make derivative works of, use, sell, and otherwise distribute such Prior Development as part of or in\nconnection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full written disclosure to\nthe Company, and will hold in trust for the sole right and benefit of the Company all developments, original works of authorship, inventions,\nconcepts, know-how, improvements, trade secrets, and similar proprietary rights, whether or not patentable or registrable under copyright or similar\nlaws, which I may solely or jointly conceive or develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice,\nor have caused or may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during regular\nworking hours, provided they either (i) relate at the time of conception, development or reduction to practice to the business of any member of the\nCompany Group, or the actual or anticipated research or development of any member of the Company Group; (ii) result from or relate to any work\nperformed for any member of the Company Group; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the\nCompany Group, or any Confidential Information, or in consultation with personnel of any member of the Company Group (collectively referred to\nas “Developments”). I further acknowledge that all Developments made by me (solely or jointly with others) within the scope of and during the\nAssignment Period are “works made for hire” (to the greatest extent permitted by applicable law) for which I am, in part, compensated by my salary,\nunless regulated otherwise by law, but that, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the\nCompany, or its designee, all my right, title, and interest throughout the world in and to any such Development.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Developments made by me\n(solely or jointly with others) during the Assignment Period. The records may be in the form of notes, sketches, drawings, flow charts, electronic\ndata or recordings, and any other format. The records will be available to and remain the sole property of the Company Group at all times. I agree\nnot to remove such records from the Company’s place of business except as expressly permitted by Company Group policy, which may, from time to\ntime, be revised at the sole election of the Company Group for the purpose of furthering the business of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company’s expense, in every way to secure\nthe rights of the Company Group in the Developments and any copyrights, patents, trademarks, service marks, database rights, domain names, mask\nwork rights, moral rights, and other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of\nall pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments that the Company shall deem necessary in order to apply for, obtain, maintain, and transfer such rights and in order to assign and convey\nto the Company Group the sole and exclusive right, title, and interest in and to such Developments, and any intellectual property and other\nproprietary rights relating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such\ninstrument or papers shall continue after the termination of the Assignment Period until the expiration of the last such intellectual property right to\nexpire in any country of the world; provided, however, the Company shall reimburse me for my reasonable expenses incurred in connection with\ncarrying out the foregoing obligation. If the Company is unable because of my mental or physical incapacity or unavailability for any other reason to\nsecure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering\nDevelopments or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and\nits duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and stead to execute and file any such applications\nor records and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance, and transfer of letters patent\nor registrations thereon with the same legal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the\nCompany any and all claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the Company (and will not\nkeep in my possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty developed by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property situated on the\nCompany’s premises and owned by the Company (or any other member of the Company Group), including disks and other storage media, filing\ncabinets, and other work areas, is subject to inspection by personnel of any member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the period of my employment with the Company (the “Employment Period”) and the Post-\nTermination Restricted Period, I shall not, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole\nproprietor, partner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in any Competitive\nActivities within any State of the United States of America and any other jurisdiction in which any member of the Company Group engages (or has\ncommitted plans to engage) in business during the Employment Period, or during the Post-Termination Restricted Period was engaged in business\n(or had committed plans to engage of which I have knowledge at the time of termination of my employment); provided, that my indirect ownership\n(i.e ., ownership through a fund that is not controlled by me or any of my affiliates) of not more than three percent (3%) of the outstanding shares of\nany publicly traded company shall not be deemed to breach of this Section 5(a).\n(b) Non-Interference. During the Employment Period and the Post-Termination Restricted Period, I shall not, directly or\nindirectly for my own account or for the account of any other individual or entity, engage in Interfering Activities.\n(c) Definitions. For purposes of this Non-Interference Agreement:\n(i) “Business Relation” shall mean any current or prospective client, customer, licensee, or other business relation of the\nCompany Group, or any such relation that was a client, customer, licensee, supplier, or other business relation within the six\n(6) month period prior to the expiration of the Employment Period, in each case, to whom I provided services, or with whom I\ntransacted business, or whose identity became known to me in connection with my relationship with or employment by the\nCompany.\n(ii) “Competitive Activities” shall mean any business activities in which any member of the Company Group is engaged (or\nhas committed plans to engage) during the Employment Period.\n(iii) “Interfering Activities” shall mean (A) encouraging, soliciting, or inducing, or in any manner attempting to encourage,\nsolicit, or induce, any individual or entity employed by, or providing consulting services to, any member of the Company Group\nto terminate such individual’s or entity’s employment or services (or in the case of a consultant, materially reducing such\nservices) with the Company Group;\n(B) hiring any individual who was employed by any member of the Company Group within the six (6) month period prior to the\ndate of such hiring; or (C) encouraging, soliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any\nBusiness Relation to cease doing business with or reduce the amount of business conducted with the Company Group, or in any\nway interfering with the relationship between any such Business Relation and the Company Group.\n(iv) “Post-Termination Restricted Period” shall mean the period commencing on the date of the termination of the\nEmployment Period for any reason and ending on the twelve (12) month anniversary of such date of termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make any disparaging\nor defamatory comments regarding (i) any member of the Company Group or its respective current or former directors, officers, or employees, or\n(ii) my relationship with any member of the Company Group, or (iii) any conduct or events which precipitated any termination of my employment\nfrom any member of the Company Group. Similarly, the Company shall instruct its executive officers and directors to refrain from making any\ndisparaging or defamatory comments regarding (i) me in any respect, or (ii) my relationship with any member of the Company Group, or (iii) the\nconduct or events that precipitated my termination of employment from any member of the Company Group (it being understood that the foregoing\nshall not prevent any representative of the Company Group from verifying my employment to any potential subsequent employer). However, the\nobligations under this subparagraph (d) shall not apply to disclosures required by applicable law, regulation, or order of a court or governmental\nagency.\n(e) Consideration. I agree that as additional consideration for my compliance with the terms and conditions of this Non-\nInterference Agreement, upon the termination of employment for any reason other than by the Company for Cause (as defined in my Employment\nAgreement, dated November 4, 2010, with the Company (the “Employment Agreement”)), the Company shall pay me $200,000 (the “Non-\nInterference Consideration”), payable in substantially equal monthly installments during the Post-Termination Restricted Period. The Non-\nInterference Consideration shall be in addition to any severance benefits that I may receive upon a termination of my employment under the terms of\nmy Employment Agreement, and I acknowledge and agree that the payment of the Non-Interference Consideration shall be subject to my execution,\ndelivery to the Company, and non-revocation of the Release of Claims (as defined in the Employment Agreement) in accordance with the provisions\nof Section 8(h) of the Employment Agreement. I agree further that the payment of the Non-Interference Consideration shall, subject to delivery of\nwritten notice from the Company and an opportunity to address the Company’s Board of Directors within five (5) business days following receipt of\nsuch notice, immediately cease if I am in breach of any provision of this Non-Interference Agreement.\n(f) Other Restrictions. The covenants contained in this Section 5 are in addition to, and not in lieu of, any similar covenants to\nwhich Employee may be subject from time to time.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to Confidential Information renders\nme special and unique within the Company’s industry, and that I will have the opportunity to develop substantial relationships with existing and\nprospective clients, accounts, customers, consultants, contractors, investors, and strategic partners of the Company Group during the course of and as\na result of my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set forth in\nthis Non-Interference Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to protect\nthe value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this Non-\nInterference Agreement will not materially interfere with my ability to earn a living following the termination of my employment with the Company\nand that my ability to earn a livelihood without violating such restrictions is a material condition to my employment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be in addition to and not\nin lieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Non-Interference\nAgreement or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of\nthis Non-Interference Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are\nheld to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making\nsuch determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration,\nscope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Non-Interference\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief\n(but not on an ex parte basis), specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or\nthreatened breach of the terms of this Non-Interference Agreement without the necessity of proving irreparable harm or injury as a result of such\nbreach or threatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-Termination Restricted\nPeriod shall be tolled during any period of violation of any of the covenants in Section 5 hereof and during any other period required for litigation\nduring which the Company or any other member of the Company Group seeks to enforce such covenants against me if it is ultimately determined\nthat I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to the Company and/or any\nother member of the Company Group and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation\nrelating to any matter that occurred during my employment in which I was involved or of which I have knowledge. As a condition of such\ncooperation, the Company shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my\ncompliance with this paragraph, and I shall be entitled to indemnification in accordance with the terms of Section 5(b) of my employment agreement\nwith the Company. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency)\nto give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my employment by the Company\nand/or any other member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the\nCompany and/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to\nsuch disclosure.\nSection 10. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF MASSACHUSETTS APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS NON-INTERFERENCE AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nANY UNITED STATES DISTRICT COURT SITTING IN MASSACHUSETTS, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN MASSACHUSETTS, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS NON -INTERFERENCE AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND WAIVE ANY RIGHT TO\nCHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT. EACH PARTY TO THIS NON -INTERFERENCE AGREEMENT ALSO\nHEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Non-Interference\nAgreement, nor any waiver of any rights under this Non-Interference Agreement, will be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-\nInterference Agreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be construed as granting me\nany right to continued employment by the Company, and the right of the Company to terminate my employment at any time and for any reason, with\nor without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors, administrators, and\nother legal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nNon-Interference Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction,\nprovided that the license granted pursuant to Section 2(a) may be assigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my employment with the\nCompany and/or the assignment of this Non-Interference Agreement by the Company to any successor in interest or other assignee.\n*\n*\n*\nI, Raymond L. D’Arcy, have executed this Confidentiality, Non-Interference, and Invention Assignment Agreement on the respective\ndate set forth below:\nDate: /s/ Raymond L. D’Arcy\n11/4/10\nRaymond L. D’Arcy\nAcknowledged and agreed as of\nthis 4th day of November 2010:\nINTERACTIVE DATA CORPORATION\n/s/ Mason Slaine\nBy: Mason Slaine\nTitle: President and CEO\nSCHEDULE A\nLIST OF PRIOR DEVELOPMENTS\nAND ORIGINAL WORKS OF AUTHORSHIP\nEXCLUDED FROM SECTION 2\nTitle\nDate\nIdentifying Number or\nBrief Description\nX No Developments or improvements\nAdditional Sheets Attached\nSignature of Employee:\n/s/ Raymond L. D’Arcy\nPrint Name of Employee: Raymond L. D’Arcy\nDate: November 4, 2010	EX-10.29 9 dex1029.htm CONFIDENTIALITY, NON-INTERFERENCE AND INVENTION ASSIGNMENT\nAGREEMENT\nExhibit 10.29\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, Interactive Data Corporation, a Delaware corporation (the\n“Company”), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the\nCompany, I agree to the following:\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access to information\nabout the Company and its direct and indirect parents and subsidiaries (collectively, the “Company Group”) and that my employment with the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my employment with the Company and for the ten (10) year period following my termination of my\nemployment with the Company Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to\ndisclose to any person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or\ncreate. I further agree not to make copies of such Confidential Information except as authorized by the Company. I understand that “Confidential\nInformation” means information that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire,\ncreate, compile, discover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company\nwishes to maintain as confidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that\nrelates to the actual or anticipated business and/or products, research, or development of the Company, or to the Company’s technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company’s products or services and\nmarkets, customer lists, and customers (including, but not limited to, customers of the Company on whom I called or with whom I may become\nacquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs, drawings,\nengineering, hardware configuration information, marketing, finances, and other business information disclosed by the Company either directly or\nindirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing,\nConfidential Information shall not include (i) any of the foregoing items that have become publicly known through no unauthorized disclosure by me\nor others who were under confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by,\nany governmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the\nCompany Group may seek an appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (the “Non-Interference Agreement”).\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference Agreement as an\nemployee of the Company has not breached and will not breach any agreement to keep in confidence proprietary information,\nknowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my employment with the Company, and I will\nnot disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or confidential or\nproprietary information or material I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\nSection 2. Developments.\n \n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with particularity all\ndevelopments, original works of authorship, developments, improvements, and trade secrets that I can demonstrate were created or owned by me\nprior to the commencement of my employment (collectively referred to as “Prior Developments”), which belong solely to me or belong to me jointly\nwith another, that relate in any way to any of the actual or proposed businesses, products, or research and development of any member of the\nCompany Group, and that are not assigned to the Company hereunder, or if no such list is attached, I represent that there are no such Prior\nDevelopments. If, during any period during which I perform or performed services for the Company Group both before or after the date hereof (the\n“Assignment Period”), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any other capacity, I incorporate\n(or have incorporated) into a Company Group product or process a Prior Development owned by me or in which I have an interest, I hereby grant the\nCompany, and the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide license (with the right to\nsublicense) to make, have made, copy, modify, make derivative works of, use, sell, and otherwise distribute such Prior Development as part of or in\nconnection with such product or process.\n \n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full written disclosure to\nthe Company, and will hold in trust for the sole right and benefit of the Company all developments, original works of authorship, inventions,\nconcepts, know-how, improvements, trade secrets, and similar proprietary rights, whether or not patentable or registrable under copyright or similar\nlaws, which I may solely or jointly conceive or develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice,\nor have caused or may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during regular\nworking hours, provided they either (i) relate at the time of conception, development or reduction to practice to the business of any member of the\nCompany Group, or the actual or anticipated research or development of any member of the Company Group; (ii) result from or relate to any work\nperformed for any member of the Company Group; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the\nCompany Group, or any Confidential Information, or in consultation with personnel of any member of the Company Group (collectively referred to\nas “Developments”). I further acknowledge that all Developments made by me (solely or jointly with others) within the scope of and during the\nAssignment Period are “works made for hire” (to the greatest extent permitted by applicable law) for which I am, in part, compensated by my salary,\nunless regulated otherwise by law, but that, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the\nCompany, or its designee, all my right, title, and interest throughout the world in and to any such Development.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Developments made by me\n(solely or jointly with others) during the Assignment Period. The records may be in the form of notes, sketches, drawings, flow charts, electronic\ndata or recordings, and any other format. The records will be available to and remain the sole property of the Company Group at all times. I agree\nnot to remove such records from the Company’s place of business except as expressly permitted by Company Group policy, which may, from time to\ntime, be revised at the sole election of the Company Group for the purpose of furthering the business of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company’s expense, in every way to secure\nthe rights of the Company Group in the Developments and any copyrights, patents, trademarks, service marks, database rights, domain names, mask\nwork rights, moral rights, and other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of\nall pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments that the Company shall deem necessary in order to apply for, obtain, maintain, and transfer such rights and in order to assign and convey\nto the Company Group the sole and exclusive right, title, and interest in and to such Developments, and any intellectual property and other\nproprietary rights relating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such\ninstrument or papers shall continue after the termination of the Assignment Period until the expiration of the last such intellectual property right to\nexpire in any country of the world; provided, however, the Company shall reimburse me for my reasonable expenses incurred in connection with\ncarrying out the foregoing obligation. If the Company is unable because of my mental or physical incapacity or unavailability for any other reason to\nsecure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering\nDevelopments or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and\nits duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and stead to execute and file any such applications\nor records and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance, and transfer of letters patent\nor registrations thereon with the same legal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the\nCompany any and all claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the Company (and will not\nkeep in my possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty developed by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property situated on the\nCompany’s premises and owned by the Company (or any other member of the Company Group), including disks and other storage media, filing\ncabinets, and other work areas, is subject to inspection by personnel of any member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the period of my employment with the Company (the “Employment Period”) and the Post-\nTermination Restricted Period, I shall not, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole\nproprietor, partner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in any Competitive\nActivities within any State of the United States of America and any other jurisdiction in which any member of the Company Group engages (or has\ncommitted plans to engage) in business during the Employment Period, or during the Post-Termination Restricted Period was engaged in business\n(or had committed plans to engage of which I have knowledge at the time of termination of my employment); provided, that my indirect ownership\n(i.e., ownership through a fund that is not controlled by me or any of my affiliates) of not more than three percent (3%) of the outstanding shares of\nany publicly traded company shall not be deemed to breach of this Section 5(a).\n \n(b) Non-Interference. During the Employment Period and the Post-Termination Restricted Period, I shall not, directly or\nindirectly for my own account or for the account of any other individual or entity, engage in Interfering Activities.\n(c) Definitions. For purposes of this Non-Interference Agreement:\n(i) “Business Relation” shall mean any current or prospective client, customer, licensee, or other business relation of the\nCompany Group, or any such relation that was a client, customer, licensee, supplier, or other business relation within the six\n(6) month period prior to the expiration of the Employment Period, in each case, to whom I provided services, or with whom I\ntransacted business, or whose identity became known to me in connection with my relationship with or employment by the\nCompany.\n(ii) “Competitive Activities” shall mean any business activities in which any member of the Company Group is engaged (or\nhas committed plans to engage) during the Employment Period.\n(iii) “Interfering Activities” shall mean (A) encouraging, soliciting, or inducing, or in any manner attempting to encourage,\nsolicit, or induce, any individual or entity employed by, or providing consulting services to, any member of the Company Group\nto terminate such individual’s or entity’s employment or services (or in the case of a consultant, materially reducing such\nservices) with the Company Group;\n(B) hiring any individual who was employed by any member of the Company Group within the six (6) month period prior to the\ndate of such hiring; or (C) encouraging, soliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any\nBusiness Relation to cease doing business with or reduce the amount of business conducted with the Company Group, or in any\nway interfering with the relationship between any such Business Relation and the Company Group.\n(iv) “Post-Termination Restricted Period” shall mean the period commencing on the date of the termination of the\nEmployment Period for any reason and ending on the twelve (12) month anniversary of such date of termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make any disparaging\nor defamatory comments regarding (i) any member of the Company Group or its respective current or former directors, officers, or employees, or\n(ii) my relationship with any member of the Company Group, or (iii) any conduct or events which precipitated any termination of my employment\nfrom any member of the Company Group. Similarly, the Company shall instruct its executive officers and directors to refrain from making any\ndisparaging or defamatory comments regarding (i) me in any respect, or (ii) my relationship with any member of the Company Group, or (iii) the\nconduct or events that precipitated my termination of employment from any member of the Company Group (it being understood that the foregoing\nshall not prevent any representative of the Company Group from verifying my employment to any potential subsequent employer). However, the\nobligations under this subparagraph (d) shall not apply to disclosures required by applicable law, regulation, or order of a court or governmental\nagency.\n(e) Consideration. I agree that as additional consideration for my compliance with the terms and conditions of this Non-\nInterference Agreement, upon the termination of employment for any reason other than by the Company for Cause (as defined in my Employment\nAgreement, dated November 4, 2010, with the Company (the “Employment Agreement”)), the Company shall pay me $200,000 (the “Non-\nInterference Consideration”), payable in substantially equal monthly installments during the Post-Termination Restricted Period. The Non-\nInterference Consideration shall be in addition to any severance benefits that I may receive upon a termination of my employment under the terms of\nmy Employment Agreement, and I acknowledge and agree that the payment of the Non-Interference Consideration shall be subject to my execution,\ndelivery to the Company, and non-revocation of the Release of Claims (as defined in the Employment Agreement) in accordance with the provisions\nof Section 8(h) of the Employment Agreement. I agree further that the payment of the Non-Interference Consideration shall, subject to delivery of\nwritten notice from the Company and an opportunity to address the Company’s Board of Directors within five (5) business days following receipt of\nsuch notice, immediately cease if I am in breach of any provision of this Non-Interference Agreement.\n(f) Other Restrictions. The covenants contained in this Section 5 are in addition to, and not in lieu of, any similar covenants to\nwhich Employee may be subject from time to time.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to Confidential Information renders\nme special and unique within the Company’s industry, and that I will have the opportunity to develop substantial relationships with existing and\nprospective clients, accounts, customers, consultants, contractors, investors, and strategic partners of the Company Group during the course of and as\na result of my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set forth in\nthis Non-Interference Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to protect\nthe value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this Non-\nInterference Agreement will not materially interfere with my ability to earn a living following the termination of my employment with the Company\nand that my ability to earn a livelihood without violating such restrictions is a material condition to my employment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be in addition to and not\nin lieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Non-Interference\nAgreement or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of\nthis Non-Interference Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are\nheld to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making\nsuch determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration,\nscope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Non-Interference\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief\n(but not on an ex parte basis), specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or\nthreatened breach of the terms of this Non-Interference Agreement without the necessity of proving irreparable harm or injury as a result of such\nbreach or threatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-Termination Restricted\nPeriod shall be tolled during any period of violation of any of the covenants in Section 5 hereof and during any other period required for litigation\nduring which the Company or any other member of the Company Group seeks to enforce such covenants against me if it is ultimately determined\nthat I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to the Company and/or any\nother member of the Company Group and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation\nrelating to any matter that occurred during my employment in which I was involved or of which I have knowledge. As a condition of such\ncooperation, the Company shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my\ncompliance with this paragraph, and I shall be entitled to indemnification in accordance with the terms of Section 5(b) of my employment agreement\nwith the Company. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency)\nto give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my employment by the Company\nand/or any other member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the\nCompany and/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to\nsuch disclosure.\nSection 10. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF MASSACHUSETTS APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS NON-INTERFERENCE AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nANY UNITED STATES DISTRICT COURT SITTING IN MASSACHUSETTS, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN MASSACHUSETTS, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS NON-INTERFERENCE AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND WAIVE ANY RIGHT TO\nCHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT. EACH PARTY TO THIS NON-INTERFERENCE AGREEMENT ALSO\nHEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Non-Interference\nAgreement, nor any waiver of any rights under this Non-Interference Agreement, will be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-\nInterference Agreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be construed as granting me\nany right to continued employment by the Company, and the right of the Company to terminate my employment at any time and for any reason, with\nor without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors, administrators, and\nother legal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nNon-Interference Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction,\nprovided that the license granted pursuant to Section 2(a) may be assigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my employment with the\nCompany and/or the assignment of this Non-Interference Agreement by the Company to any successor in interest or other assignee.\n* * *\nI, Raymond L. D’ Arcy, have executed this Confidentiality, Non-Interference, and Invention Assignment Agreement on the respective\ndate set forth below:\nDate: /s/ Raymond L. D’Arcy 11/4/10\nRaymond L. D’ Arcy\nAcknowledged and agreed as of\nthis 4th day of November 2010:\nINTERACTIVE DATA CORPORATION\n/s/ Mason Slaine\nBy: Mason Slaine\nTitle: President and CEO\nSCHEDULE A\nLIST OF PRIOR DEVELOPMENTS\nAND ORIGINAL WORKS OF AUTHORSHIP\nEXCLUDED FROM SECTION 2\nIdentifying Number or\nTitle Date Brief Description\nX No Developments or improvements\nAdditional Sheets Attached\nSignature of Employee: /s/ Raymond L. D’Arcy\nPrint Name of Employee: Raymond L. D’ Arcy\nDate: November 4, 2010	EX-10.29 9 ex1029.htm CONFIDENTIALITY NON-INTERFERENCE AND INVENTION ASSIGNMENT\nAGREEMENT\nExhibit 10.29\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, Interactive Data Corporation, a Delaware corporation (the\n"Company."), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the\nCompany, I agree to the following:\nSection 1. Confidential Information.\n(a) Company. Group Information. I acknowledge that, during the course of my employment, I will have access to information\nabout the Company and its direct and indirect parents and subsidiaries (collectively, the "Company. Group") and that my employment with the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my employment with the Company and for the ten (10) year period following my termination of my\nemployment with the Company Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to\ndisclose to any person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or\ncreate. I further agree not to make copies of such Confidential Information except as authorized by the Company. I understand that "Confidential\nInformation" means information that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire,\ncreate, compile, discover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company\nwishes to maintain as confidential I understand that Confidential Information includes, but is not limited to, any and all non-public information\nthat\nrelates to the actual or anticipated business and/or products, research, or development of the Company, or to the Company's technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company's products or services and\nmarkets, customer lists, and customers (including, but not limited to, customers of the Company on whom I called or with whom I may become\nacquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs, drawings,\nengineering, hardware configuration information, marketing, finances, and other business information disclosed by the Company either directly or\nindirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing,\nConfidential Information shall not include (i) any of the foregoing items that have become publicly known through no unauthorized disclosure by me\nor others who were under confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by,\nany governmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the\nCompany Group may seek an appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (the "Non-Interference Agreement").\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference Agreement as an\nemployee of the Company has not breached and will not breach any agreement to keep in confidence proprietary information,\nknowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my employment with the Company, and I will\nnot disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or confidential or\nproprietary information or material I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\nSection 2. Developments.\n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with particularity all\ndevelopments, original works of authorship, developments, improvements, and trade secrets that I can demonstrate were created or owned by me\nprior to the commencement of my employment (collectively referred to as "Prior Developments"), which belong solely to me or belong to me jointly\nwith another, that relate in any way to any of the actual or proposed businesses, products, or research and development of any member of the\nCompany Group, and that are not assigned to the Company hereunder, or if no such list is attached, I represent that there are no such Prior\nDevelopments. If, during any period during which I perform or performed services for the Company Group both before or after the date hereof (the\n"Assignment Period"), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any other capacity, I incorporate\n(or have incorporated) into a Company Group product or process a Prior Development owned by me or in which I have an interest, I hereby grant the\nCompany, and the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide license (with the right\nto\nsublicense) to make, have made, copy, modify, make derivative works of, use, sell, and otherwise distribute such Prior Development as part of or in\nconnection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full written disclosure to\nthe Company, and will hold in trust for the sole right and benefit of the Company all developments, original works of authorship, inventions,\nconcepts, know-how, improvements, trade secrets, and similar proprietary rights, whether or not patentable or registrable under copyright or similar\nlaws, which I may solely or jointly conceive or develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice,\nor have caused or may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during regular\nworking hours, provided they either (i) relate at the time of conception, development or reduction to practice to the business of any member of the\nCompany Group, or the actual or anticipated research or development of any member of the Company Group; (ii) result from or relate to any work\nperformed for any member of the Company Group; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the\nCompany Group, or any Confidential Information, or in consultation with personnel of any member of the Company Group (collectively referred to\nas "Developments"). I further acknowledge that all Developments made by me (solely or jointly with others) within the scope of and during the\nAssignment Period are "works made for hire" (to the greatest extent permitted by applicable law) for which I am, in part, compensated by my salary,\nunless regulated otherwise by law, but that, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the\nCompany, or its designee, all my right, title, and interest throughout the world in and to any such Development.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Developments made by me\n(solely or jointly with others) during the Assignment Period The records may be in the form of notes, sketches, drawings, flow charts, electronic\ndata or recordings, and any other format. The records will be available to and remain the sole property of the Company Group at all times. I agree\nnot to remove such records from the Company's place of business except as expressly permitted by Company Group policy, which may, from time to\ntime, be revised at the sole election of the Company Group for the purpose of furthering the business of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company's expense, in every way to secure\nthe rights of the Company Group in the Developments and any copyrights, patents, trademarks, service marks, database rights, domain names, mask\nwork rights, moral rights, and other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company\nof\nall pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments that the Company shall deem necessary in order to apply for, obtain, maintain, and transfer such rights and in order to assign and convey\nto the Company Group the sole and exclusive right, title, and interest in and to such Developments, and any intellectual property and other\nproprietary rights relating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such\ninstrument or papers shall continue after the termination of the Assignment Period until the expiration of the last such intellectual property right\nto\nexpire in any country of the world; provided, however, the Company shall reimburse me for my reasonable expenses incurred in connection with\ncarrying out the foregoing obligation. If the Company is unable because of my mental or physical incapacity or unavailability for any other reason to\nsecure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering\nDevelopments or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company\nand\nits duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and stead to execute and file any such applications\nor records and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance, and transfer of letters patent\nor\nregistrations thereon with the same legal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the\nCompany any and all claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the Company (and will not\nkeep in my possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty developed by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property situated on the\nCompany's premises and owned by the Company (or any other member of the Company Group), including disks and other storage media, filing\ncabinets, and other work areas, is subject to inspection by personnel of any member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the period of my employment with the Company (the "Employment Period") and the Post-\nTermination Restricted Period, I shall not, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a\nsole\nproprietor, partner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in any Competitive\nActivities within any State of the United States of America and any other jurisdiction in which any member of the Company Group engages (or has\ncommitted plans to engage) in business during the Employment Period, or during the Post-Termination Restricted Period was engaged in business\n(or had committed plans to engage of which I have knowledge at the time of termination of my employment); provided, that my indirect ownership\n(i.e., ownership through a fund that is not controlled by me or any of my affiliates) of not more than three percent (3%) of the outstanding shares\nof\nany publicly traded company shall not be deemed to breach of this Section 5(a).\n(b) Non-Interference. During the Employment Period and the Post-Termination Restricted Period, I shall not, directly or\nindirectly for my own account or for the account of any other individual or entity, engage in Interfering Activities.\n(c) Definitions. For purposes of this Non-Interference Agreement:\n(i) "Business Relation" shall mean any current or prospective client, customer, licensee, or other business relation of the\nCompany Group, or any such relation that was a client, customer, licensee, supplier, or other business relation within the six\n(6) month period prior to the expiration of the Employment Period, in each case, to whom I provided services, or with whom I\ntransacted business, or whose identity became known to me in connection with my relationship with or employment by the\nCompany.\n(ii) "Competitive Activities" shall mean any business activities in which any member of the Company Group is engaged (or\nhas committed plans to engage) during the Employment Period.\n(iii) "Interfering Activities" shall mean (A) encouraging, soliciting, or inducing, or in any manner attempting to encourage,\nsolicit, or induce, any individual or entity employed by, or providing consulting services to, any member of the Company Group\nto terminate such individual's or entity's employment or services (or in the case of a consultant, materially reducing such\nservices) with the Company Group;\n(B) hiring any individual who was employed by any member of the Company Group within the six (6) month period prior to the\ndate of such hiring; or (C) encouraging, soliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any\nBusiness Relation to cease doing business with or reduce the amount of business conducted with the Company Group, or in any\nway interfering with the relationship between any such Business Relation and the Company Group.\n(iv) "Post-Termination Restricted Period" shall mean the period commencing on the date of the termination of the\nEmployment Period for any reason and ending on the twelve (12) month anniversary of such date of termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make any disparaging\nor\ndefamatory comments regarding (i) any member of the Company Group or its respective current or former directors, officers, or employees, or\n(ii) my relationship with any member of the Company Group, or (iii) any conduct or events which precipitated any termination of my employment\nfrom any member of the Company Group. Similarly, the Company shall instruct its executive officers and directors to refrain from making any\ndisparaging or defamatory comments regarding (i) me in any respect, or (ii) my relationship with any member of the Company Group, or (iii) the\nconduct or events that precipitated my termination of employment from any member of the Company Group (it being understood that the foregoing\nshall not prevent any representative of the Company Group from verifying my employment to any potential subsequent employer). However,\nthe\nobligations under this subparagraph (d) shall not apply to disclosures required by applicable law, regulation, or order of a court or governmental\nagency.\n(e) Consideration. I agree that as additional consideration for my compliance with the terms and conditions of this Non-\nInterference Agreement, upon the termination of employment for any reason other than by the Company for Cause (as defined in my Employment\nAgreement, dated November 4, 2010, with the Company (the "Employment Agreement")), the Company shall pay me $200,000 (the "Non-\nInterference Consideration"), payable in substantially equal monthly installments during the Post-Termination Restricted Period. The Non-\nInterference Consideration shall be in addition to any severance benefits that I may receive upon a termination of my employment under the terms\nof\nmy Employment Agreement, and I acknowledge and agree that the payment of the Non-Interference Consideration shall be subject to my execution,\ndelivery to the Company, and non-revocation of the Release of Claims (as defined in the Employment Agreement) in accordance with the provisions\nof Section 8(h) of the Employment Agreement. I agree further that the payment of the Non-Interference Consideration shall, subject to delivery\nof\nwritten notice from the Company and an opportunity to address the Company's Board of Directors within five (5) business days following receipt of\nsuch notice, immediately cease if I am in breach of any provision of this Non-Interference Agreement.\n(f) Other Restrictions. The covenants contained in this Section 5 are in addition to, and not in lieu of, any similar covenants to\nwhich Employee may be subject from time to time.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company's business, that access to Confidential Information renders\nme special and unique within the Company's industry, and that I will have the opportunity to develop substantial relationships with existing and\nprospective clients, accounts, customers, consultants, contractors, investors, and strategic partners of the Company Group during the course of and as\na\nresult of my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set forth in\nthis Non-Interference Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to protect\nthe value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this Non-\nInterference Agreement will not materially interfere with my ability to earn a living following the termination of my employment with the Company\nand that my ability to earn a livelihood without violating such restrictions is a material condition to my employment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be in addition to and not\nin lieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Non-Interference\nAgreement or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of\nthis Non-Interference Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are\nheld\nto\nbe invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making\nsuch determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration,\nscope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Non-Interference\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief\n(but not on an ex parte basis), specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or\nthreatened breach of the terms of this Non-Interference Agreement without the necessity of proving irreparable harm or injury as a result of such\nbreach or threatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-Termination Restricted\nPeriod shall be tolled during any period of violation of any of the covenants in Section 5 hereof and during any other period required for litigation\nduring which the Company or any other member of the Company Group seeks to enforce such covenants against me if it is ultimately determined\nthat I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to the Company and/or any\nother member of the Company Group and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation\nrelating to any matter that occurred during my employment in which I was involved or of which I have knowledge. As a condition of such\ncooperation, the Company shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my\ncompliance with this paragraph, and I shall be entitled to indemnification in accordance with the terms of Section 5(b) of my employment agreement\nwith the Company. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency)\nto give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my employment by the Company\nand/or any other member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the\nCompany and/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to\nsuch disclosure.\nSection 10. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF MASSACHUSETTS APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS NON-INTERFERENCE AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nANY UNITED STATES DISTRICT COURT SITTING IN MASSACHUSETTS, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN MASSACHUSETTS, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS NON-INTERFERENCE AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND WAIVE ANY RIGHT\nTO\nCHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT. EACH PARTY TO THIS NON-INTERFERENCE AGREEMENT ALSO\nHEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING UNDER OR\nIN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Non-Interference\nAgreement, nor any waiver of any rights under this Non-Interference Agreement, will be effective unless in writing signed by the party to\nbe\ncharged. Any subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-\nInterference Agreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be construed as granting me\nany right to continued employment by the Company, and the right of the Company to terminate my employment at any time and for any reason, with\nor without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors, administrators, and\nother\nlegal\nrepresentatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nNon-Interference Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction,\nprovided that the license granted pursuant to Section 2(a) may be assigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my employment with the\nCompany and/or the assignment of this Non-Interference Agreement by the Company to any successor in interest or other assignee.\n*\n*\n*\nI, Raymond L. D' Arcy, have executed this Confidentiality, Non-Interference, and Invention Assignment Agreement on the respective\ndate set forth below:\nDate: /s/ Raymond L. 'Arcy\n11/4/10\nRaymond L. D' 'Arcy\nAcknowledged and agreed as of\nthis 4th day of November 2010:\nINTERACTIVE DATA CORPORATION\n/s/ Mason Slaine\nBy: Mason Slaine\nTitle: President and CEO\nSCHEDULE A\nLIST OF PRIOR DEVELOPMENTS\nAND ORIGINAL WORKS OF AUTHORSHIP\nEXCLUDED FROM SECTION 2\nIdentifying Number or\nTitle\nDate\nBrief Description\nX\nNo Developments or improvements\nAdditional Sheets Attached\nSignature of Employee:\n/s/ Raymond L. D' 'Arcy\nPrint Name of Employee: Raymond L. D'Arcy\nDate: November 4, 2010	EX-10.29 9 dex1029.htm CONFIDENTIALITY, NON-INTERFERENCE AND INVENTION ASSIGNMENT\nAGREEMENT\nExhibit 10.29\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, Interactive Data Corporation, a Delaware corporation (the\n“Company”), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the\nCompany, I agree to the following:\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access to information\nabout the Company and its direct and indirect parents and subsidiaries (collectively, the “Company Group”) and that my employment with the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my employment with the Company and for the ten (10) year period following my termination of my\nemployment with the Company Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to\ndisclose to any person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or\ncreate. I further agree not to make copies of such Confidential Information except as authorized by the Company. I understand that “Confidential\nInformation” means information that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire,\ncreate, compile, discover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company\nwishes to maintain as confidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that\nrelates to the actual or anticipated business and/or products, research, or development of the Company, or to the Company’s technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company’s products or services and\nmarkets, customer lists, and customers (including, but not limited to, customers of the Company on whom I called or with whom I may become\nacquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs, drawings,\nengineering, hardware configuration information, marketing, finances, and other business information disclosed by the Company either directly or\nindirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing,\nConfidential Information shall not include (i) any of the foregoing items that have become publicly known through no unauthorized disclosure by me\nor others who were under confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by,\nany governmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the\nCompany Group may seek an appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (the “Non-Interference Agreement”).\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference Agreement as an\nemployee of the Company has not breached and will not breach any agreement to keep in confidence proprietary information,\nknowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my employment with the Company, and I will\nnot disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or confidential or\nproprietary information or material I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\nSection 2. Developments.\n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with particularity all\ndevelopments, original works of authorship, developments, improvements, and trade secrets that I can demonstrate were created or owned by me\nprior to the commencement of my employment (collectively referred to as “Prior Developments”), which belong solely to me or belong to me jointly\nwith another, that relate in any way to any of the actual or proposed businesses, products, or research and development of any member of the\nCompany Group, and that are not assigned to the Company hereunder, or if no such list is attached, I represent that there are no such Prior\nDevelopments. If, during any period during which I perform or performed services for the Company Group both before or after the date hereof (the\n“Assignment Period”), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any other capacity, I incorporate\n(or have incorporated) into a Company Group product or process a Prior Development owned by me or in which I have an interest, I hereby grant the\nCompany, and the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide license (with the right to\nsublicense) to make, have made, copy, modify, make derivative works of, use, sell, and otherwise distribute such Prior Development as part of or in\nconnection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full written disclosure to\nthe Company, and will hold in trust for the sole right and benefit of the Company all developments, original works of authorship, inventions,\nconcepts, know-how, improvements, trade secrets, and similar proprietary rights, whether or not patentable or registrable under copyright or similar\nlaws, which I may solely or jointly conceive or develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice,\nor have caused or may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during regular\nworking hours, provided they either (i) relate at the time of conception, development or reduction to practice to the business of any member of the\nCompany Group, or the actual or anticipated research or development of any member of the Company Group; (ii) result from or relate to any work\nperformed for any member of the Company Group; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the\nCompany Group, or any Confidential Information, or in consultation with personnel of any member of the Company Group (collectively referred to\nas “Developments”). I further acknowledge that all Developments made by me (solely or jointly with others) within the scope of and during the\nAssignment Period are “works made for hire” (to the greatest extent permitted by applicable law) for which I am, in part, compensated by my salary,\nunless regulated otherwise by law, but that, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the\nCompany, or its designee, all my right, title, and interest throughout the world in and to any such Development.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Developments made by me\n(solely or jointly with others) during the Assignment Period. The records may be in the form of notes, sketches, drawings, flow charts, electronic\ndata or recordings, and any other format. The records will be available to and remain the sole property of the Company Group at all times. I agree\nnot to remove such records from the Company’s place of business except as expressly permitted by Company Group policy, which may, from time to\ntime, be revised at the sole election of the Company Group for the purpose of furthering the business of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company’s expense, in every way to secure\nthe rights of the Company Group in the Developments and any copyrights, patents, trademarks, service marks, database rights, domain names, mask\nwork rights, moral rights, and other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of\nall pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments that the Company shall deem necessary in order to apply for, obtain, maintain, and transfer such rights and in order to assign and convey\nto the Company Group the sole and exclusive right, title, and interest in and to such Developments, and any intellectual property and other\nproprietary rights relating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such\ninstrument or papers shall continue after the termination of the Assignment Period until the expiration of the last such intellectual property right to\nexpire in any country of the world; provided, however, the Company shall reimburse me for my reasonable expenses incurred in connection with\ncarrying out the foregoing obligation. If the Company is unable because of my mental or physical incapacity or unavailability for any other reason to\nsecure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering\nDevelopments or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and\nits duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and stead to execute and file any such applications\nor records and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance, and transfer of letters patent\nor registrations thereon with the same legal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the\nCompany any and all claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the Company (and will not\nkeep in my possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty developed by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property situated on the\nCompany’s premises and owned by the Company (or any other member of the Company Group), including disks and other storage media, filing\ncabinets, and other work areas, is subject to inspection by personnel of any member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the period of my employment with the Company (the “Employment Period”) and the Post-\nTermination Restricted Period, I shall not, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole\nproprietor, partner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in any Competitive\nActivities within any State of the United States of America and any other jurisdiction in which any member of the Company Group engages (or has\ncommitted plans to engage) in business during the Employment Period, or during the Post-Termination Restricted Period was engaged in business\n(or had committed plans to engage of which I have knowledge at the time of termination of my employment); provided, that my indirect ownership\n(i.e ., ownership through a fund that is not controlled by me or any of my affiliates) of not more than three percent (3%) of the outstanding shares of\nany publicly traded company shall not be deemed to breach of this Section 5(a).\n(b) Non-Interference. During the Employment Period and the Post-Termination Restricted Period, I shall not, directly or\nindirectly for my own account or for the account of any other individual or entity, engage in Interfering Activities.\n(c) Definitions. For purposes of this Non-Interference Agreement:\n(i) “Business Relation” shall mean any current or prospective client, customer, licensee, or other business relation of the\nCompany Group, or any such relation that was a client, customer, licensee, supplier, or other business relation within the six\n(6) month period prior to the expiration of the Employment Period, in each case, to whom I provided services, or with whom I\ntransacted business, or whose identity became known to me in connection with my relationship with or employment by the\nCompany.\n(ii) “Competitive Activities” shall mean any business activities in which any member of the Company Group is engaged (or\nhas committed plans to engage) during the Employment Period.\n(iii) “Interfering Activities” shall mean (A) encouraging, soliciting, or inducing, or in any manner attempting to encourage,\nsolicit, or induce, any individual or entity employed by, or providing consulting services to, any member of the Company Group\nto terminate such individual’s or entity’s employment or services (or in the case of a consultant, materially reducing such\nservices) with the Company Group;\n(B) hiring any individual who was employed by any member of the Company Group within the six (6) month period prior to the\ndate of such hiring; or (C) encouraging, soliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any\nBusiness Relation to cease doing business with or reduce the amount of business conducted with the Company Group, or in any\nway interfering with the relationship between any such Business Relation and the Company Group.\n(iv) “Post-Termination Restricted Period” shall mean the period commencing on the date of the termination of the\nEmployment Period for any reason and ending on the twelve (12) month anniversary of such date of termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make any disparaging\nor defamatory comments regarding (i) any member of the Company Group or its respective current or former directors, officers, or employees, or\n(ii) my relationship with any member of the Company Group, or (iii) any conduct or events which precipitated any termination of my employment\nfrom any member of the Company Group. Similarly, the Company shall instruct its executive officers and directors to refrain from making any\ndisparaging or defamatory comments regarding (i) me in any respect, or (ii) my relationship with any member of the Company Group, or (iii) the\nconduct or events that precipitated my termination of employment from any member of the Company Group (it being understood that the foregoing\nshall not prevent any representative of the Company Group from verifying my employment to any potential subsequent employer). However, the\nobligations under this subparagraph (d) shall not apply to disclosures required by applicable law, regulation, or order of a court or governmental\nagency.\n(e) Consideration. I agree that as additional consideration for my compliance with the terms and conditions of this Non-\nInterference Agreement, upon the termination of employment for any reason other than by the Company for Cause (as defined in my Employment\nAgreement, dated November 4, 2010, with the Company (the “Employment Agreement”)), the Company shall pay me $200,000 (the “Non-\nInterference Consideration”), payable in substantially equal monthly installments during the Post-Termination Restricted Period. The Non-\nInterference Consideration shall be in addition to any severance benefits that I may receive upon a termination of my employment under the terms of\nmy Employment Agreement, and I acknowledge and agree that the payment of the Non-Interference Consideration shall be subject to my execution,\ndelivery to the Company, and non-revocation of the Release of Claims (as defined in the Employment Agreement) in accordance with the provisions\nof Section 8(h) of the Employment Agreement. I agree further that the payment of the Non-Interference Consideration shall, subject to delivery of\nwritten notice from the Company and an opportunity to address the Company’s Board of Directors within five (5) business days following receipt of\nsuch notice, immediately cease if I am in breach of any provision of this Non-Interference Agreement.\n(f) Other Restrictions. The covenants contained in this Section 5 are in addition to, and not in lieu of, any similar covenants to\nwhich Employee may be subject from time to time.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to Confidential Information renders\nme special and unique within the Company’s industry, and that I will have the opportunity to develop substantial relationships with existing and\nprospective clients, accounts, customers, consultants, contractors, investors, and strategic partners of the Company Group during the course of and as\na result of my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set forth in\nthis Non-Interference Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to protect\nthe value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this Non-\nInterference Agreement will not materially interfere with my ability to earn a living following the termination of my employment with the Company\nand that my ability to earn a livelihood without violating such restrictions is a material condition to my employment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be in addition to and not\nin lieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Non-Interference\nAgreement or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of\nthis Non-Interference Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are\nheld to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making\nsuch determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration,\nscope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Non-Interference\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief\n(but not on an ex parte basis), specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or\nthreatened breach of the terms of this Non-Interference Agreement without the necessity of proving irreparable harm or injury as a result of such\nbreach or threatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-Termination Restricted\nPeriod shall be tolled during any period of violation of any of the covenants in Section 5 hereof and during any other period required for litigation\nduring which the Company or any other member of the Company Group seeks to enforce such covenants against me if it is ultimately determined\nthat I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to the Company and/or any\nother member of the Company Group and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation\nrelating to any matter that occurred during my employment in which I was involved or of which I have knowledge. As a condition of such\ncooperation, the Company shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my\ncompliance with this paragraph, and I shall be entitled to indemnification in accordance with the terms of Section 5(b) of my employment agreement\nwith the Company. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency)\nto give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my employment by the Company\nand/or any other member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the\nCompany and/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to\nsuch disclosure.\nSection 10. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF MASSACHUSETTS APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS NON-INTERFERENCE AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nANY UNITED STATES DISTRICT COURT SITTING IN MASSACHUSETTS, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN MASSACHUSETTS, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS NON -INTERFERENCE AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND WAIVE ANY RIGHT TO\nCHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT. EACH PARTY TO THIS NON -INTERFERENCE AGREEMENT ALSO\nHEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Non-Interference\nAgreement, nor any waiver of any rights under this Non-Interference Agreement, will be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-\nInterference Agreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be construed as granting me\nany right to continued employment by the Company, and the right of the Company to terminate my employment at any time and for any reason, with\nor without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors, administrators, and\nother legal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nNon-Interference Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction,\nprovided that the license granted pursuant to Section 2(a) may be assigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my employment with the\nCompany and/or the assignment of this Non-Interference Agreement by the Company to any successor in interest or other assignee.\n*\n*\n*\nI, Raymond L. D’Arcy, have executed this Confidentiality, Non-Interference, and Invention Assignment Agreement on the respective\ndate set forth below:\nDate: /s/ Raymond L. D’Arcy\n11/4/10\nRaymond L. D’Arcy\nAcknowledged and agreed as of\nthis 4th day of November 2010:\nINTERACTIVE DATA CORPORATION\n/s/ Mason Slaine\nBy: Mason Slaine\nTitle: President and CEO\nSCHEDULE A\nLIST OF PRIOR DEVELOPMENTS\nAND ORIGINAL WORKS OF AUTHORSHIP\nEXCLUDED FROM SECTION 2\nTitle\nDate\nIdentifying Number or\nBrief Description\nX No Developments or improvements\nAdditional Sheets Attached\nSignature of Employee:\n/s/ Raymond L. D’Arcy\nPrint Name of Employee: Raymond L. D’Arcy\nDate: November 4, 2010
5f542bf5a9d00298d7743fd2acbcbfd5.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 13 d342355dex99d2.htm NONDISCLOSURE AND STANDSTILL AGREEMENT\nExhibit (d)(2)\nP.F. CHANG’S CHINA BISTRO, INC.\nNONDISCLOSURE AND STANDSTILL AGREEMENT\nThis Nondisclosure and Standstill Agreement (this “Agreement”) by and between P.F. Chang’s China Bistro, Inc, a Delaware\ncorporation (“Provider”), and Centerbridge Advisors II, LLC (“Recipient”), is dated as of March 2, 2012 (the “Effective Date”). Provider and\nRecipient shall each be referred to herein individually, as a “Party” and collectively, as the “Parties.”\n1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties, Provider\nis prepared to make available to Recipient certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and Recipient hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “affiliates” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or\nunder common control with such Person.\n(b) The term “Beneficial Ownership” when used with reference to a security shall have the meaning ascribed to it under the Securities\nExchange Act of 1934, as amended (the “1934 Act”), except that for purposes of this definition, the term security shall include any option, warrant,\nor convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right with an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole or in part from the\nvalue of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any other direct or indirect\nopportunity to profit or share in any profit derived from any increase or decrease in tl1e value of the security\n(c) The term “Evaluation Material” means information (whether oral, written, electronic or otherwise) concerning Provider which has\nbeen or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient’s evaluation of a\nPossible Transaction, including Provider’s business, financial condition, operations, assets and liabilities, and includes all notes, analyses,\ncompilations, studies, interpretations or other documents prepared by Recipient or its Representatives which contain or are based upon, in whole or\nin part, the information furnished by Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by Recipient or any of its Representatives in breach of this Agreement, (ii) was\nwithin a Recipient’s possession prior to its being furnished to Recipient by or on behalf of the Provider (including without limitation general\nknowledge of the restaurant industry), provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to\nRecipient from a source other than Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such information.\n(d) The term “Representatives” shall mean the directors, officers, employees or partners of a Party who have a need to know Evaluation\nMaterial for purposes of evaluating a Possible Transaction.\n(e) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Recipient shall, and shall cause its Representatives to, use the Evaluation Material solely for the purpose of\nevaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representative not\nto, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to\nRecipient’s Representatives who need to know such information for the sole purpose of helping Recipient evaluate a Possible Transaction; provided,\nfurther, that Recipient requires each of its Representatives to be bound by the terms of this agreement applicable to Representatives to the fullest\nextent as if they were Parties hereto. Recipient agrees to be responsible for any breach of this Agreement by any of Recipient’s Representatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any express or\nimplied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied in such\nEvaluation Material.\n4. Non-Disclosure of Discussions. Subject to Section 5, Recipient agrees that, without the prior written consent of Provider, Recipient will not,\nand it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been provided to Recipient or Recipient’s\nRepresentatives, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or other transaction with\nthe Provider or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof).\n5. Legally Required Disclosure. If Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, Recipient shall (to the extent legally permissible) provide\nProvider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by Provider, Recipient or any of its Representatives is nonetheless legally compelled to\ndisclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer\nother censure or penalty,\n2\nRecipient or its respective Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation\nMaterial or any such facts which Recipient or its Representatives is legally required to disclose, provided that Recipient and/or its Representatives\nreasonably cooperate with Provider at Provider’s sole expense to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be accorded such Evaluation Material or such facts by the Person receiving the material.\n6. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which Recipient or its Representatives\nare granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering memorandum or\nsubmission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional confidentiality conditions, it\nbeing understood and agreed that Recipient’s and its Representatives’ confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in traditional written\nformat.\n7. Return or Destruction of Evaluation Material. If one the Parties decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the other Party of that decision. In that case, or at any time upon the request of Provider for any reason, Recipient will, and will\ncause its Representatives to, within 10 business days after receipt of such notice or request, destroy or return all Evaluation Materials. Recipient shall\nprovide to Provider a certificate of compliance with the previous sentence signed by an executive officer of Recipient. Notwithstanding the return or\ndestruction of the Evaluation Material, Recipient and its Representatives will continue to be bound by Recipient’s obligations hereunder with respect\nto such Evaluation Material for the term hereof. Notwithstanding the foregoing, the legal department of Recipient may maintain a copy of the\nEvaluation Material in its restricted access files for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes.\n8. No Solicitation/Employment. Recipient will not, within one year from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the officers or employees of Provider, so long as they are employed\nby Provider and for three months after they cease to be employed by Provider. Recipient is not prohibited from soliciting by means of a general\nadvertisement not directed at (i) any particular individual or (ii) the employees of Provider generally.\n3\n9. Standstill. Recipient’s Beneficial Ownership of the Company’s capital stock as of the Effective Date is set forth on Schedule A attached\nhereto. Recipient agrees that, for a period of one year after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing\nby Provider, neither it nor any of its respective Representatives, will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or all or substantially all of the assets of Provider or any of\nits subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving Provider or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Provider or any\nof its subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of Provider;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of Provider;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving Provider or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nProvider;\n(e) take any action which might force Provider to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nRecipient also agrees during the Standstill Period not to request Provider (or its directors, officers, employees or agents), directly or\nindirectly, to amend or waive any provision of this Section 9 (including this sentence).\nRecipient further agrees that unless otherwise directed by Provider in writing (i) all communications with the Company regarding a\nPossible Transaction, (ii) requests for additional information, facility tours, or management meetings, and (iii) discussions or questions regarding\nprocedures with respect to a Possible Transaction, will be submitted or directed by Recipient or its Representatives only to Roger Matthews of\nGoldman Sachs & Co., as Provider’s financial advisor, or a person or persons designated in writing by Mr. Matthews.\n10. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Recipient\nacknowledges and agrees that the Parties have a commonality of interest with respect to such matters and it\n4\nis the desire, intention and mutual understanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nshall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11. Compliance with Securities Laws. Recipient acknowledges that the Evaluation Material may include material nonpublic information\n(within the meaning of the securities laws of the United States) with respect to provider. Recipient agrees not to use and will cause its\nRepresentatives to agree not to use any Evaluation Material of the Provider in violation of applicable securities laws.\n12. Not a Transaction Agreement. Recipient understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and Recipient hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nthe Parties shall have entered into a final definitive agreement for a Possible Transaction. Recipient also agrees that, unless and until a final definitive\nagreement regarding a Possible Transaction has been executed and delivered, neither of the Parties will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. None of the\nParties are under any obligation to accept any proposal regarding a Possible Transaction and the Parties may terminate discussions and negotiations\nat any time.\n13. No Representations or Warranties; No Obligation to Disclose. Recipient understands and acknowledges that neither Provider nor its\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished\nby or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or resulting from the use of the\nEvaluation Material furnished to Recipient or its respective Representatives or any errors therein or omissions therefrom. As to the information\ndelivered to Recipient, Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a\nPossible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nAgreement shall be construed as obligating Provider to provide, or to continue to provide, any information to any Person.\n14. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of one of the Parties hereto except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure\nor delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n5\n15. Remedies. Recipient understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\nRecipient or any of its Representatives and that Provider shall be entitled to seek equitable relief, including injunction and specific performance, as a\nremedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for Provider for a breach by Recipient\nor its Representatives of this Agreement, but shall be in addition to all other remedies available at law or equity to Provider.\n16. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that Recipient or its\nRepresentatives have breached this Agreement, then Recipient shall be liable and pay to Provider the reasonable legal fees and costs incurred by\nProvider in connection with such litigation, including any appeal therefrom, as a court of competent jurisdiction may deem appropriate under the\ncircumstances.\n17. Governing Law. This Agreement is for the benefit of each of the Parties and shall be governed by and construed in accordance with the\nlaws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either of the Patties by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n6\n23. Consent to Representation. This agreement also constitutes notice to Recipient that Provider has engaged DLA Piper LLP (US) as its legal\ncounsel in connection with the Possible Transaction, and Recipient hereby (i) consents to the continued representation of Provider by DLA Piper\nLLP (US) in relation to the Possible Transaction notwithstanding the fact that DLA Piper LLP (US) may have represented, and may currently or in\nthe future represent, Recipient and/or any of its respective affiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and\nactual or alleged violation of ethical or comparable rules applicable to DLA Piper LLP (US) that may arise from its representation of Provider in\nconnection with the Possible Transaction, including but not limited to representing Provider against Recipient and/or its affiliates in litigation,\narbitration, or mediation in connection therewith. In addition, Recipient hereby acknowledges that the consent and waiver under this paragraph is\nvoluntary and informed, and that Recipient has obtained independent legal advice with respect to this consent and waiver. Recipient further agrees\nthat they are each aware of the extent of their respective relationships, if any, with DLA Piper LLP (US), and do not require additional information\nfrom DLA Piper LLP (US) in order to understand the nature of this consent. If Recipient has any questions regarding this paragraph, please contact\nJay Rains at DLA Piper LLP (US) at (858) 677-1476 or jay.rains@dlapiper.com . DLA Piper LLP (US) is an express third party beneficiary of this\nparagraph.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nP.F. CHANG’S CHINA BISTRO, INC.\nADDRESS FOR NOTICE:\n7676 E. Pinnacle Peak Road,\nScottsdale, Arizona 85255\nAttn: Richard L. Federico\nChief Executive Officer\nBy: /s/ Mark Mumford\nName: Mark Mumford\nTitle: CFO\nDate: March 2, 2012\nCENTERBRIDGE ADVISORS II, LLC\nADDRESS FOR NOTICE:\n375 Park Avenue, 12th Floor\nNew York, NY 10152\nAttention: Legal & Compliance\nBy: /s/ Susanne V. Clark\nName: Susanne V. Clark\nTitle: Authorized Signatory\nDate: March 2, 2012	EX-99.(D)(2) 13 d342355dex99d2.htm NONDISCLOSURE AND STANDSTILL AGREEMENT\nExhibit (d)(2)\nP.F. CHANG’S CHINA BISTRO, INC.\nNONDISCLOSURE AND STANDSTILL AGREEMENT\nThis Nondisclosure and Standstill Agreement (this “Agreement”) by and between P.F. Chang’s China Bistro, Inc, a Delaware\ncorporation (“Provider”), and Centerbridge Advisors II, LLC (“Recipient”), is dated as of March 2, 2012 (the “Effective Date”). Provider and\nRecipient shall each be referred to herein individually, as a “Party” and collectively, as the “Parties.”\n1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties, Provider\nis prepared to make available to Recipient certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and Recipient hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “affiliates” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or\nunder common control with such Person.\n(b) The term “Beneficial Ownership” when used with reference to a security shall have the meaning ascribed to it under the Securities\nExchange Act of 1934, as amended (the “1934 Act”), except that for purposes of this definition, the term security shall include any option, warrant,\nor convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right with an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole or in part from the\nvalue of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any other direct or indirect\nopportunity to profit or share in any profit derived from any increase or decrease in tlle value of the security\n(c) The term “Evaluation Material” means information (whether oral, written, electronic or otherwise) concerning Provider which has\nbeen or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient’s evaluation of a\nPossible Transaction, including Provider’s business, financial condition, operations, assets and liabilities, and includes all notes, analyses,\ncompilations, studies, interpretations or other documents prepared by Recipient or its Representatives which contain or are based upon, in whole or\nin part, the information furnished by Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by Recipient or any of its Representatives in breach of this Agreement, (ii) was\nwithin a Recipient’s possession prior to its being furnished to Recipient by or on behalf of the Provider (including without limitation general\nknowledge of the restaurant industry), provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to\nRecipient from a source other than Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such information.\n(d) The term “Representatives” shall mean the directors, officers, employees or partners of a Party who have a need to know Evaluation\nMaterial for purposes of evaluating a Possible Transaction.\n(e) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Recipient shall, and shall cause its Representatives to, use the Evaluation Material solely for the purpose of\nevaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representative not\nto, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to\nRecipient’s Representatives who need to know such information for the sole purpose of helping Recipient evaluate a Possible Transaction; provided,\nfurther, that Recipient requires each of its Representatives to be bound by the terms of this agreement applicable to Representatives to the fullest\nextent as if they were Parties hereto. Recipient agrees to be responsible for any breach of this Agreement by any of Recipient’s Representatives.\n \nThis Agreement does not grant Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any express or\nimplied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied in such\nEvaluation Material.\n4. Non-Disclosure of Discussions. Subject to Section 5, Recipient agrees that, without the prior written consent of Provider, Recipient will not,\nand it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been provided to Recipient or Recipient’s\nRepresentatives, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or other transaction with\nthe Provider or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof).\n5. Legally Required Disclosure. If Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, Recipient shall (to the extent legally permissible) provide\nProvider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by Provider, Recipient or any of its Representatives is nonetheless legally compelled to\ndisclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer\nother censure or penalty,\nRecipient or its respective Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation\nMaterial or any such facts which Recipient or its Representatives is legally required to disclose, provided that Recipient and/or its Representatives\nreasonably cooperate with Provider at Provider’s sole expense to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be accorded such Evaluation Material or such facts by the Person receiving the material.\n6. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which Recipient or its Representatives\nare granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering memorandum or\nsubmission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional confidentiality conditions, it\nbeing understood and agreed that Recipient’s and its Representatives’ confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in traditional written\nformat.\n7. Return or Destruction of Evaluation Material. If one the Parties decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the other Party of that decision. In that case, or at any time upon the request of Provider for any reason, Recipient will, and will\ncause its Representatives to, within 10 business days after receipt of such notice or request, destroy or return all Evaluation Materials. Recipient shall\nprovide to Provider a certificate of compliance with the previous sentence signed by an executive officer of Recipient. Notwithstanding the return or\ndestruction of the Evaluation Material, Recipient and its Representatives will continue to be bound by Recipient’s obligations hereunder with respect\nto such Evaluation Material for the term hereof. Notwithstanding the foregoing, the legal department of Recipient may maintain a copy of the\nEvaluation Material in its restricted access files for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes.\n8. No Solicitation/Employment. Recipient will not, within one year from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the officers or employees of Provider, so long as they are employed\nby Provider and for three months after they cease to be employed by Provider. Recipient is not prohibited from soliciting by means of a general\nadvertisement not directed at (i) any particular individual or (ii) the employees of Provider generally.\n3\n9. Standstill. Recipient’s Beneficial Ownership of the Company’s capital stock as of the Effective Date is set forth on Schedule A attached\nhereto. Recipient agrees that, for a period of one year after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing\nby Provider, neither it nor any of its respective Representatives, will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or all or substantially all of the assets of Provider or any of\nits subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving Provider or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Provider or any\nof its subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of Provider;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of Provider;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving Provider or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nProvider;\n(e) take any action which might force Provider to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nRecipient also agrees during the Standstill Period not to request Provider (or its directors, officers, employees or agents), directly or\nindirectly, to amend or waive any provision of this Section 9 (including this sentence).\nRecipient further agrees that unless otherwise directed by Provider in writing (i) all communications with the Company regarding a\nPossible Transaction, (ii) requests for additional information, facility tours, or management meetings, and (iii) discussions or questions regarding\nprocedures with respect to a Possible Transaction, will be submitted or directed by Recipient or its Representatives only to Roger Matthews of\nGoldman Sachs & Co., as Provider’s financial advisor, or a person or persons designated in writing by Mr. Matthews.\n10. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Recipient\nacknowledges and agrees that the Parties have a commonality of interest with respect to such matters and it\n4\nis the desire, intention and mutual understanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nshall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11. Compliance with Securities Laws. Recipient acknowledges that the Evaluation Material may include material nonpublic information\n(within the meaning of the securities laws of the United States) with respect to provider. Recipient agrees not to use and will cause its\nRepresentatives to agree not to use any Evaluation Material of the Provider in violation of applicable securities laws.\n12. Not a Transaction Agreement. Recipient understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and Recipient hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nthe Parties shall have entered into a final definitive agreement for a Possible Transaction. Recipient also agrees that, unless and until a final definitive\nagreement regarding a Possible Transaction has been executed and delivered, neither of the Parties will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. None of the\nParties are under any obligation to accept any proposal regarding a Possible Transaction and the Parties may terminate discussions and negotiations\nat any time.\n13. No Representations or Warranties; No Obligation to Disclose. Recipient understands and acknowledges that neither Provider nor its\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished\nby or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or resulting from the use of the\nEvaluation Material furnished to Recipient or its respective Representatives or any errors therein or omissions therefrom. As to the information\ndelivered to Recipient, Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a\nPossible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nAgreement shall be construed as obligating Provider to provide, or to continue to provide, any information to any Person.\n14. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of one of the Parties hereto except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure\nor delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n5\n15. Remedies. Recipient understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\nRecipient or any of its Representatives and that Provider shall be entitled to seek equitable relief, including injunction and specific performance, as a\nremedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for Provider for a breach by Recipient\nor its Representatives of this Agreement, but shall be in addition to all other remedies available at law or equity to Provider.\n16. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that Recipient or its\nRepresentatives have breached this Agreement, then Recipient shall be liable and pay to Provider the reasonable legal fees and costs incurred by\nProvider in connection with such litigation, including any appeal therefrom, as a court of competent jurisdiction may deem appropriate under the\ncircumstances.\n17. Governing Law. This Agreement is for the benefit of each of the Parties and shall be governed by and construed in accordance with the\nlaws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either of the Patties by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n23. Consent to Representation. This agreement also constitutes notice to Recipient that Provider has engaged DLA Piper LLP (US) as its legal\ncounsel in connection with the Possible Transaction, and Recipient hereby (i) consents to the continued representation of Provider by DLA Piper\nLLP (US) in relation to the Possible Transaction notwithstanding the fact that DLA Piper LLP (US) may have represented, and may currently or in\nthe future represent, Recipient and/or any of its respective affiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and\nactual or alleged violation of ethical or comparable rules applicable to DLA Piper LLP (US) that may arise from its representation of Provider in\nconnection with the Possible Transaction, including but not limited to representing Provider against Recipient and/or its affiliates in litigation,\narbitration, or mediation in connection therewith. In addition, Recipient hereby acknowledges that the consent and waiver under this paragraph is\nvoluntary and informed, and that Recipient has obtained independent legal advice with respect to this consent and waiver. Recipient further agrees\nthat they are each aware of the extent of their respective relationships, if any, with DLA Piper LLP (US), and do not require additional information\nfrom DLA Piper LLP (US) in order to understand the nature of this consent. If Recipient has any questions regarding this paragraph, please contact\nJay Rains at DLA Piper LLP (US) at (858) 677-1476 or jay.rains@dlapiper.com. DLA Piper LLP (US) is an express third party beneficiary of this\nparagraph.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nP.F. CHANG’S CHINA BISTRO, INC.\nADDRESS FOR NOTICE:\n7676 E. Pinnacle Peak Road,\nScottsdale, Arizona 85255\nAttn: Richard L. Federico\nChief Executive Officer\nBy: /s/ Mark Mumford\nName: Mark Mumford\nTitle: CFO\nDate: March 2, 2012\nCENTERBRIDGE ADVISORS II, LLC\nADDRESS FOR NOTICE:\n375 Park Avenue, 12th Floor\nNew York, NY 10152\nAttention: Legal & Compliance\nBy: /s/ Susanne V. Clark\nName: Susanne V. Clark\nTitle: Authorized Signatory\nDate: March 2, 2012	EX-99.(D)(2) 13 d342355dex99d2.htm NONDISCLOSURE AND STANDSTILL AGREEMENT\nExhibit (d)(2)\nP.F. CHANG'S CHINA BISTRO, INC.\nNONDISCLOSURE AND STANDSTILL AGREEMENT\nThis Nondisclosure and Standstill Agreement (this "Agreement") by and between P.F. Chang's China Bistro, Inc, a Delaware\ncorporation ("Provider"), and Centerbridge Advisors II, LLC ("Recipient"), is dated as of March 2, 2012 (the "Effective Date"). Provider and\nRecipient shall each be referred to herein individually, as a "Party" and collectively, as the "Parties."\n1. General. In connection with the consideration of a possible negotiated transaction (a "Possible Transaction") between the Parties, Provider\nis prepared to make available to Recipient certain "Evaluation Material" (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and Recipient hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term "affiliates" shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or\nunder common control with such Person.\n(b) The term "Beneficial Ownership" when used with reference to a security shall have the meaning ascribed to it under the Securities\nExchange Act of 1934, as amended (the "1934 Act"), except that for purposes of this definition, the term security shall include any option, warrant,\nor convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right with an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole or in part from the\nvalue of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any other direct or indirect\nopportunity to profit or share in any profit derived from any increase or decrease in tl1e value of the security\n(c) The term "Evaluation Material" means information (whether oral, written, electronic or otherwise) concerning Provider which has\nbeen or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient's evaluation of\na\nPossible Transaction, including Provider's business, financial condition, operations, assets and liabilities, and includes all notes, analyses,\ncompilations, studies, interpretations or other documents prepared by Recipient or its Representatives which contain or are based upon, in whole or\nin part, the information furnished by Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by Recipient or any of its Representatives in breach of this Agreement, (ii)\nwas\nwithin a Recipient's possession prior to its being furnished to Recipient by or on behalf of the Provider (including without limitation general\nknowledge of the restaurant industry), provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to\nRecipient from a source other than Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with,\nor\nother contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such information.\n(d) The term "Representatives" shall mean the directors, officers, employees or partners of a Party who have a need to know Evaluation\nMaterial for purposes of evaluating a Possible Transaction.\n(e) The term "Person" includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Recipient shall, and shall cause its Representatives to, use the Evaluation Material solely for the purpose of\nevaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representative not\nto, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to\nRecipient's Representatives who need to know such information for the sole purpose of helping Recipient evaluate a Possible Transaction; provided,\nfurther, that Recipient requires each of its Representatives to be bound by the terms of this agreement applicable to Representatives to the fullest\nextent as if they were Parties hereto. Recipient agrees to be responsible for any breach of this Agreement by any of Recipient's Representatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use the Provider's Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any express or\nimplied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied in such\nEvaluation Material.\n4.\nNon-Disclosure of Discussions. Subject to Section 5, Recipient agrees that, without the prior written consent of Provider, Recipient will not,\nand it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been provided to Recipient or Recipient's\nRepresentatives, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or other transaction with\nthe Provider or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof).\n5. Legally Required Disclosure. If Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, Recipient shall (to the extent legally permissible) provide\nProvider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed SO that Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of\na\nprotective order or other remedy or the receipt of a waiver by Provider, Recipient or any of its Representatives is nonetheless legally compelled to\ndisclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer\nother censure or penalty,\n2\nRecipient or its respective Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation\nMaterial or any such facts which Recipient or its Representatives is legally required to disclose, provided that Recipient and/or its Representatives\nreasonably cooperate with Provider at Provider's sole expense to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be accorded such Evaluation Material or such facts by the Person receiving the material.\n6.\n"Click Through" Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements\nimposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which Recipient or its Representatives\nare granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering memorandum or\nsubmission of an electronic signature, "clicking" on an "I Agree" icon or other indication of assent to such additional confidentiality conditions,\nit\nbeing understood and agreed that Recipient's and its Representatives' confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in traditional written\nformat.\n7. Return or Destruction of Evaluation Material. If one the Parties decides that it does not wish to proceed with a Possible Transaction, it\nwill\npromptly inform the other Party of that decision. In that case, or at any time upon the request of Provider for any reason, Recipient will, and will\ncause its Representatives to, within 10 business days after receipt of such notice or request, destroy or return all Evaluation Materials. Recipient shall\nprovide to Provider a certificate of compliance with the previous sentence signed by an executive officer of Recipient. Notwithstanding the return or\ndestruction of the Evaluation Material, Recipient and its Representatives will continue to be bound by Recipient's obligations hereunder with respect\nto such Evaluation Material for the term hereof. Notwithstanding the foregoing, the legal department of Recipient may maintain a copy of the\nEvaluation Material in its restricted access files for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes.\n8. No Solicitation/Employment. Recipient will not, within one year from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the officers or employees of Provider, so long as they are employed\nby Provider and for three months after they cease to be employed by Provider. Recipient is not prohibited from soliciting by means of a general\nadvertisement not directed at (i) any particular individual or (ii) the employees of Provider generally.\n3\n9. Standstill. Recipient's Beneficial Ownership of the Company's capital stock as of the Effective Date is set forth on Schedule A attached\nhereto. Recipient agrees that, for a period of one year after the date of this Agreement (the "Standstill Period"), unless specifically invited in writing\nby Provider, neither it nor any of its respective Representatives, will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or all or substantially all of the assets of Provider or any of\nits subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving Provider or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Provider or any\nof its subsidiaries, or\n(iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of Provider;\n(b) form, join or in any way participate in a "group" (as defined under the 1934 Act) with respect to the securities of Provider;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition),\nany\nextraordinary transaction involving Provider or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nProvider;\n(e) take any action which might force Provider to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nRecipient also agrees during the Standstill Period not to request Provider (or its directors, officers, employees or agents), directly\nor\nindirectly, to amend or waive any provision of this Section 9 (including this sentence).\nRecipient further agrees that unless otherwise directed by Provider in writing (i) all communications with the Company regarding\na\nPossible Transaction, (ii) requests for additional information, facility tours, or management meetings, and (iii) discussions or questions regarding\nprocedures with respect to a Possible Transaction, will be submitted or directed by Recipient or its Representatives only to Roger Matthews of\nGoldman Sachs & Co., as Provider's financial advisor, or a person or persons designated in writing by Mr. Matthews.\n10. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Recipient\nacknowledges and agrees that the Parties have a commonality of interest with respect to such matters and it\n4\nis the desire, intention and mutual understanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nshall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11. Compliance with Securities Laws. Recipient acknowledges that the Evaluation Material may include material nonpublic information\n(within the meaning of the securities laws of the United States) with respect to provider. Recipient agrees not to use and will cause its\nRepresentatives to agree not to use any Evaluation Material of the Provider in violation of applicable securities laws.\n12. Not a Transaction Agreement Recipient understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and Recipient hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nthe Parties shall have entered into a final definitive agreement for a Possible Transaction. Recipient also agrees that, unless and until a final definitive\nagreement regarding a Possible Transaction has been executed and delivered, neither of the Parties will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. None of the\nParties are under any obligation to accept any proposal regarding a Possible Transaction and the Parties may terminate discussions and negotiations\nat any time.\n13. No Representations or Warranties; No Obligation to Disclose. Recipient understands and acknowledges that neither Provider nor its\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished\nby\nor\non\nbehalf\nof\nProvider\nand\nshall\nhave\nno\nliability\nto\nRecipient,\nits\nRepresentatives\nor\nany\nother\nPerson\nrelating\nto\nor\nresulting\nfrom\nthe\nuse\nof\nthe\nEvaluation Material furnished to Recipient or its respective Representatives or any errors therein or omissions therefrom. As to the information\ndelivered to Recipient, Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a\nPossible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nAgreement shall be construed as obligating Provider to provide, or to continue to provide, any information to any Person.\n14. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of one of the Parties hereto except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure\nor\ndelay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n5\n15. Remedies. Recipient understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\nRecipient or any of its Representatives and that Provider shall be entitled to seek equitable relief, including injunction and specific performance, as\na\nremedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for Provider for a breach by Recipient\nor its Representatives of this Agreement, but shall be in addition to all other remedies available at law or equity to Provider.\n16. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that Recipient or its\nRepresentatives have breached this Agreement, then Recipient shall be liable and pay to Provider the reasonable legal fees and costs incurred by\nProvider in connection with such litigation, including any appeal therefrom, as a court of competent jurisdiction may deem appropriate under the\ncircumstances.\n17. Governing. Law. This Agreement is for the benefit of each of the Parties and shall be governed by and construed in accordance with the\nlaws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18. Severability.. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of\nits\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either of the Patties by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n6\n23. Consent to Representation. This agreement also constitutes notice to Recipient that Provider has engaged DLA Piper LLP (US) as its legal\ncounsel in connection with the Possible Transaction, and Recipient hereby (i) consents to the continued representation of Provider by DLA Piper\nLLP (US) in relation to the Possible Transaction notwithstanding the fact that DLA Piper LLP (US) may have represented, and may currently or in\nthe\nfuture represent, Recipient and/or any of its respective affiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and\nactual or alleged violation of ethical or comparable rules applicable to DLA Piper LLP (US) that may arise from its representation of Provider in\nconnection with the Possible Transaction, including but not limited to representing Provider against Recipient and/or its affiliates in litigation,\narbitration, or mediation in connection therewith. In addition, Recipient hereby acknowledges that the consent and waiver under this paragraph is\nvoluntary and informed, and that Recipient has obtained independent legal advice with respect to this consent and waiver. Recipient further agrees\nthat they are each aware of the extent of their respective relationships, if any, with DLA Piper LLP (US), and do not require additional information\nfrom DLA Piper LLP (US) in order to understand the nature of this consent. If Recipient has any questions regarding this paragraph, please contact\nJay Rains at DLA Piper LLP (US) at (858) 677-1476 or jay.rains@dlapiper.com DLA Piper LLP (US) is an express third party beneficiary of this\nparagraph.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nP.F. CHANG'S CHINA BISTRO, INC.\nADDRESS FOR NOTICE:\n7676 E. Pinnacle Peak Road,\nScottsdale, Arizona 85255\nAttn: Richard L. Federico\nChief Executive Officer\nBy:\n/s/ Mark Mumford\nName: Mark Mumford\nTitle: CFO\nDate: March 2, 2012\nCENTERBRIDGE ADVISORS II, LLC\nADDRESS FOR NOTICE:\n375 Park Avenue, 12th Floor\nNew York, NY 10152\nAttention: Legal & Compliance\nBy:\n/s/ Susanne V. Clark\nName: Susanne V. Clark\nTitle: Authorized Signatory\nDate: March 2, 2012	EX-99.(D)(2) 13 d342355dex99d2.htm NONDISCLOSURE AND STANDSTILL AGREEMENT\nExhibit (d)(2)\nP.F. CHANG’S CHINA BISTRO, INC.\nNONDISCLOSURE AND STANDSTILL AGREEMENT\nThis Nondisclosure and Standstill Agreement (this “Agreement”) by and between P.F. Chang’s China Bistro, Inc, a Delaware\ncorporation (“Provider”), and Centerbridge Advisors II, LLC (“Recipient”), is dated as of March 2, 2012 (the “Effective Date”). Provider and\nRecipient shall each be referred to herein individually, as a “Party” and collectively, as the “Parties.”\n1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties, Provider\nis prepared to make available to Recipient certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and Recipient hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “affiliates” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or\nunder common control with such Person.\n(b) The term “Beneficial Ownership” when used with reference to a security shall have the meaning ascribed to it under the Securities\nExchange Act of 1934, as amended (the “1934 Act”), except that for purposes of this definition, the term security shall include any option, warrant,\nor convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right with an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole or in part from the\nvalue of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any other direct or indirect\nopportunity to profit or share in any profit derived from any increase or decrease in tl1e value of the security\n(c) The term “Evaluation Material” means information (whether oral, written, electronic or otherwise) concerning Provider which has\nbeen or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient’s evaluation of a\nPossible Transaction, including Provider’s business, financial condition, operations, assets and liabilities, and includes all notes, analyses,\ncompilations, studies, interpretations or other documents prepared by Recipient or its Representatives which contain or are based upon, in whole or\nin part, the information furnished by Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by Recipient or any of its Representatives in breach of this Agreement, (ii) was\nwithin a Recipient’s possession prior to its being furnished to Recipient by or on behalf of the Provider (including without limitation general\nknowledge of the restaurant industry), provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to\nRecipient from a source other than Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such information.\n(d) The term “Representatives” shall mean the directors, officers, employees or partners of a Party who have a need to know Evaluation\nMaterial for purposes of evaluating a Possible Transaction.\n(e) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Recipient shall, and shall cause its Representatives to, use the Evaluation Material solely for the purpose of\nevaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representative not\nto, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to\nRecipient’s Representatives who need to know such information for the sole purpose of helping Recipient evaluate a Possible Transaction; provided,\nfurther, that Recipient requires each of its Representatives to be bound by the terms of this agreement applicable to Representatives to the fullest\nextent as if they were Parties hereto. Recipient agrees to be responsible for any breach of this Agreement by any of Recipient’s Representatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any express or\nimplied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied in such\nEvaluation Material.\n4. Non-Disclosure of Discussions. Subject to Section 5, Recipient agrees that, without the prior written consent of Provider, Recipient will not,\nand it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been provided to Recipient or Recipient’s\nRepresentatives, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or other transaction with\nthe Provider or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof).\n5. Legally Required Disclosure. If Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, Recipient shall (to the extent legally permissible) provide\nProvider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by Provider, Recipient or any of its Representatives is nonetheless legally compelled to\ndisclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer\nother censure or penalty,\n2\nRecipient or its respective Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation\nMaterial or any such facts which Recipient or its Representatives is legally required to disclose, provided that Recipient and/or its Representatives\nreasonably cooperate with Provider at Provider’s sole expense to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be accorded such Evaluation Material or such facts by the Person receiving the material.\n6. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which Recipient or its Representatives\nare granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering memorandum or\nsubmission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional confidentiality conditions, it\nbeing understood and agreed that Recipient’s and its Representatives’ confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in traditional written\nformat.\n7. Return or Destruction of Evaluation Material. If one the Parties decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the other Party of that decision. In that case, or at any time upon the request of Provider for any reason, Recipient will, and will\ncause its Representatives to, within 10 business days after receipt of such notice or request, destroy or return all Evaluation Materials. Recipient shall\nprovide to Provider a certificate of compliance with the previous sentence signed by an executive officer of Recipient. Notwithstanding the return or\ndestruction of the Evaluation Material, Recipient and its Representatives will continue to be bound by Recipient’s obligations hereunder with respect\nto such Evaluation Material for the term hereof. Notwithstanding the foregoing, the legal department of Recipient may maintain a copy of the\nEvaluation Material in its restricted access files for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes.\n8. No Solicitation/Employment. Recipient will not, within one year from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the officers or employees of Provider, so long as they are employed\nby Provider and for three months after they cease to be employed by Provider. Recipient is not prohibited from soliciting by means of a general\nadvertisement not directed at (i) any particular individual or (ii) the employees of Provider generally.\n3\n9. Standstill. Recipient’s Beneficial Ownership of the Company’s capital stock as of the Effective Date is set forth on Schedule A attached\nhereto. Recipient agrees that, for a period of one year after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing\nby Provider, neither it nor any of its respective Representatives, will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or all or substantially all of the assets of Provider or any of\nits subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving Provider or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Provider or any\nof its subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of Provider;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of Provider;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving Provider or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nProvider;\n(e) take any action which might force Provider to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nRecipient also agrees during the Standstill Period not to request Provider (or its directors, officers, employees or agents), directly or\nindirectly, to amend or waive any provision of this Section 9 (including this sentence).\nRecipient further agrees that unless otherwise directed by Provider in writing (i) all communications with the Company regarding a\nPossible Transaction, (ii) requests for additional information, facility tours, or management meetings, and (iii) discussions or questions regarding\nprocedures with respect to a Possible Transaction, will be submitted or directed by Recipient or its Representatives only to Roger Matthews of\nGoldman Sachs & Co., as Provider’s financial advisor, or a person or persons designated in writing by Mr. Matthews.\n10. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Recipient\nacknowledges and agrees that the Parties have a commonality of interest with respect to such matters and it\n4\nis the desire, intention and mutual understanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nshall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11. Compliance with Securities Laws. Recipient acknowledges that the Evaluation Material may include material nonpublic information\n(within the meaning of the securities laws of the United States) with respect to provider. Recipient agrees not to use and will cause its\nRepresentatives to agree not to use any Evaluation Material of the Provider in violation of applicable securities laws.\n12. Not a Transaction Agreement. Recipient understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and Recipient hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nthe Parties shall have entered into a final definitive agreement for a Possible Transaction. Recipient also agrees that, unless and until a final definitive\nagreement regarding a Possible Transaction has been executed and delivered, neither of the Parties will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. None of the\nParties are under any obligation to accept any proposal regarding a Possible Transaction and the Parties may terminate discussions and negotiations\nat any time.\n13. No Representations or Warranties; No Obligation to Disclose. Recipient understands and acknowledges that neither Provider nor its\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished\nby or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or resulting from the use of the\nEvaluation Material furnished to Recipient or its respective Representatives or any errors therein or omissions therefrom. As to the information\ndelivered to Recipient, Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a\nPossible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nAgreement shall be construed as obligating Provider to provide, or to continue to provide, any information to any Person.\n14. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of one of the Parties hereto except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure\nor delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n5\n15. Remedies. Recipient understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\nRecipient or any of its Representatives and that Provider shall be entitled to seek equitable relief, including injunction and specific performance, as a\nremedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for Provider for a breach by Recipient\nor its Representatives of this Agreement, but shall be in addition to all other remedies available at law or equity to Provider.\n16. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that Recipient or its\nRepresentatives have breached this Agreement, then Recipient shall be liable and pay to Provider the reasonable legal fees and costs incurred by\nProvider in connection with such litigation, including any appeal therefrom, as a court of competent jurisdiction may deem appropriate under the\ncircumstances.\n17. Governing Law. This Agreement is for the benefit of each of the Parties and shall be governed by and construed in accordance with the\nlaws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either of the Patties by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n6\n23. Consent to Representation. This agreement also constitutes notice to Recipient that Provider has engaged DLA Piper LLP (US) as its legal\ncounsel in connection with the Possible Transaction, and Recipient hereby (i) consents to the continued representation of Provider by DLA Piper\nLLP (US) in relation to the Possible Transaction notwithstanding the fact that DLA Piper LLP (US) may have represented, and may currently or in\nthe future represent, Recipient and/or any of its respective affiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and\nactual or alleged violation of ethical or comparable rules applicable to DLA Piper LLP (US) that may arise from its representation of Provider in\nconnection with the Possible Transaction, including but not limited to representing Provider against Recipient and/or its affiliates in litigation,\narbitration, or mediation in connection therewith. In addition, Recipient hereby acknowledges that the consent and waiver under this paragraph is\nvoluntary and informed, and that Recipient has obtained independent legal advice with respect to this consent and waiver. Recipient further agrees\nthat they are each aware of the extent of their respective relationships, if any, with DLA Piper LLP (US), and do not require additional information\nfrom DLA Piper LLP (US) in order to understand the nature of this consent. If Recipient has any questions regarding this paragraph, please contact\nJay Rains at DLA Piper LLP (US) at (858) 677-1476 or jay.rains@dlapiper.com . DLA Piper LLP (US) is an express third party beneficiary of this\nparagraph.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nP.F. CHANG’S CHINA BISTRO, INC.\nADDRESS FOR NOTICE:\n7676 E. Pinnacle Peak Road,\nScottsdale, Arizona 85255\nAttn: Richard L. Federico\nChief Executive Officer\nBy: /s/ Mark Mumford\nName: Mark Mumford\nTitle: CFO\nDate: March 2, 2012\nCENTERBRIDGE ADVISORS II, LLC\nADDRESS FOR NOTICE:\n375 Park Avenue, 12th Floor\nNew York, NY 10152\nAttention: Legal & Compliance\nBy: /s/ Susanne V. Clark\nName: Susanne V. Clark\nTitle: Authorized Signatory\nDate: March 2, 2012
60a77a6809d3c8817a9d5ea5745d43d2.pdf	effective_date jurisdiction party term	EX-10.2 3 d799884dex102.htm CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the “Agreement”) dated this 18th day of September, 2014 is entered\ninto by and between Robert J. Shovlin (“Employee”) and NeoGenomics, Inc., a Nevada corporation (“Employer” or the (“Parent Company”)\nand collectively with NeoGenomics Laboratories, Inc., a Florida corporation and any entity that is wholly or partially owned by the Parent\nCompany or otherwise affiliated with the Parent Company, the “Company”). Hereinafter, each of the Employee or the Company maybe referred\nto as a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, the Parties have entered into that certain Employment Agreement, of even dated herewith, that creates an employment\nrelationship between the Employer and Employee (the “Employment Agreement”); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company’s Confidentiality, Non-Solicitation\nand Non-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such\nemployment relationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company’s\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the\nentry into this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee’s\ntraining, and Employee’s training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agrees that all of the provisions of this Agreement except for Sections 7 and 8 hereof shall be effective as of the date of this\nAgreement. The Company and the Employee agree that Sections 7 and 8 hereof will not become effective until the Employee’s first day of\nemployment with the Company. Employee agrees that the term of this Agreement (“Term”) shall be as follows: (i) in the event that Employee\ndoes not actually become an employee of the Company as contemplated by the Employment Agreement, then the Term shall be for a period of\ntwo (2) years from the date of this Agreement, or (ii) in the event Employee does become an employee of the Company, then the term of this\nAgreement shall survive and continue to be in force and effect for two years following the termination of any employment\n1\nrelationship between the Parties, whether termination is by the Company with or without cause, wrongful discharge, or for any other reason\nwhatsoever, or by the Employee unless an exception is specifically provided in certain situations in any such Restrictive Covenants.\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that:\n(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records,\ncomputer disks or other computer storage medium, data, models or any photographic or other tangible materials containing such information,\nCustomer lists and names and other information, Customer contracts, other corporate contracts, computer programs, proprietary technical\ninformation and/or strategies, sales, promotional or marketing plans or strategies, programs, techniques, practices, any expansion plans\n(including existing and entry into new geographic and/or product markets), pricing information, product or service offering specifications or\nplans thereof, business plans, financial information and other financial plans, data pertaining to the Company’s operating performance, employee\nlists, salary information, Personal Information, Protected Health Information, all information the Company receives from customers or other third\nparties that is not generally known to the public or is subject to a confidentiality agreement, training manuals, and other materials and business\ninformation of a similar nature, including information about the Company itself or any affiliated entity, which Employee acknowledges and\nagrees has been compiled by the Company’s expenditure of a great amount of time, money and effort, and that contains detailed information that\ncould not be created independently from public sources. Further, all data, spreadsheets, reports, records, know-how, verbal communication,\nproprietary and technical information and/or other confidential materials of similar kind transmitted by the Company to Employee or developed\nby the Employee on behalf of the Company as Work Product (as defined in Paragraph 7) are expressly included within the definition of\n“Confidential Information.” The Parties further agree that the fact the Company may be seeking to complete a business transaction is\n“Confidential Information” within the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from\nConfidential Information. Nevertheless, Confidential Information shall not include any information of any kind which (1) is in the possession of\nthe Employee prior to the date of this Agreement, as shown by the Employee’s files and records, or (2) prior or after the time of disclosure\nbecomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any similar agreement with\nany other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any obligation of\nconfidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based thereon; or\n(5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for release\nby the non-disclosing party.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and\nlast name or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D. number, social\ninsurance number, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or\ndebit card number.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received,\nand/or maintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies\nthe individual.\n2\nd. The term “Customer” shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee’s employment with the Company.\ne. The term “Prospective Customer” shall mean any person or entity which has evidenced an intention to order products or services with\nthe Company within one year immediately preceding the termination of the Employee’s employment with the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in\nthis Agreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be\nenforced as is judged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of\nthe voting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing\nservices, including, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, and\nmolecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the\nterm of this Agreement and after the termination of employment with the Company for as long as such information remains non-public\ninformation, the Employee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether\nwritten or oral, tangible or intangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her employment with the Company and for no other purpose, (iii) take all reasonable precautions\nnecessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the\nprior written consent of the Company, (iv) observe all security policies implemented by the Company from time to time with respect to the\nConfidential Information, and (v) not use or disclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation,\nassociation or other legal entity, any Confidential Information, unless expressly permitted by this Agreement. Employee agrees that protection of\nthe Company’s Confidential Information constitutes a legitimate business interest justifying the restrictive covenants contained herein. Employee\nfurther agrees that the restrictive covenants contained herein are reasonably necessary to protect the Company’s legitimate business interest in\npreserving its Confidential Information. In addition, Employee will not view or access any PI or PHI unless required by the Company in the\ncourse Employee’s job duties and responsibilities for the Company and then only when authorized by the Company to do so. Employee\nacknowledges that he/she shall bear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent\npermitted by applicable law.\n3\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall\ngive the Company at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and\nshall reasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nc. Employee acknowledge(s) that this “Confidential Information” is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this “Confidential Information” derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is\nthe subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all “Confidential Information” under this Agreement\nconstitutes “Trade Secrets” under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Employee’s relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other\nCompany purchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to\nEmployee is the exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company\neither upon termination of the Employee’s employment or at such other time as is requested by the Company. Employee agree(s) that upon\ntermination of employment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and\nelectronic copies, of Confidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any\ncomputer file or database maintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential\nInformation to the Company as described above, Employee will destroy any analysis, notes, work product or other materials relating to or\nderived from the Confidential Information. Any retention of Confidential Information may constitute “civil theft” as such term is defined in\nChapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or\non behalf of the Company. It is further understood and agreed that, after the Employee’s employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which\nuse Confidential Information through the Company’s then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation\nmaterials, course materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the\nCompany during the term of the Employee’s employment with the Company or any successor to the Company until the date of termination of the\nEmployee (collectively, the “Work Product”), shall be considered a work made for hire and that the Company shall be the sole owner of all\nrights, including copyright, in and to the Work Product.\n4\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or\notherwise protectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to\nthe Company in connection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in\nconnection therewith shall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless\nassigned by the Company to another entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during or\nafter the termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or\ntrademarks or other equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work\nof authorship, computer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for\nvesting such patents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the\nCompany absolutely and as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work\nproduct conceived by the Employee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing\nservices. The covenants contained in this Paragraph 8 (the “Restrictive Covenants”) are given and made by Employee to induce the Company to\nemploy Employee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive\nCovenants. Employee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination\nof such employment (such period of time is hereinafter referred to as the “Restrictive Period”), he/she will abide by the following restrictive\ncovenants unless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\nNotwithstanding the forgoing, the Company agrees that the Restrictive Period of the Non-Competition Covenant described in paragraph 8(b)\nbelow shall be reduced to one year in the event that the Company consummates a change of control within the first year of the Employee’s\nemployment with the Company and the Employee is terminated without “Cause” (as such term is defined in the Employment Agreement) within\nninety (90) days of the effective date of such change of control.\na.\nNon-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in\none or a series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer,\ndirector or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other\nlegal entity:\n5\n(i) solicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\n(ii) request or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor,\nof the Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor\nwithin one year immediately preceding the termination of the Employee’s employment with the Company, to withdraw,\ncurtail, cancel or refrain from doing business with the Company in any capacity; or\n(iii) manage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv) recruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with\nthe Company or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)\nemploy or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation\nafter his or her termination from the Company and he or she does not have any personal knowledge and/or control over the\nsolicitation of or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to\nthat employee.\nb. Non-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly,\nfor himself , or on behalf of others, as an individual on Employee’s own account, or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or\nother legal entity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Employee is\nengaged or a future employer of the Employee is selling the same or similar products and services in a Business which may compete\nwith the Company’s products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Employee that sell different types of products or services\nin the Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability\nto support his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the\nCompany in a similar competitive environment. Along those lines, should the Employee leave the employment of the Employer for\nany reason, he or she would be prohibited from joining a for-profit cancer testing\n6\ngenetics laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit prenatal and pediatric/constitutional genetic\ntesting laboratories are excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this\nnon-compete clause to work in any non-profit cancer genetics testing laboratory (e.g ., in academia) as well as in a private, for-profit\nprenatal laboratory or pediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is\nintended to prevent the Employee from acting in any of the capacities outlined in this paragraph for any “for-profit” cancer genetics\ntesting laboratories that do the type of any one or more of the types of testing defined in the definition of Business in the Restricted\nArea.\n9. Acknowledgements of Employee.\na.\nThe Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this\nAgreement and the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary\ndamages will be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company\nwill be entitled to the relief identified in Paragraph No. 10 below.\nb. The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence\nof any claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these\nRestrictive Covenants.\nc.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nd. Employee agrees that this Agreement may be enforced by the Company’s successor in interest by way of merger, business\ncombination or consolidation where a majority of the surviving entity is not owned by Company’s shareholders who owned a\nmajority of the Company’s voting shares prior to such transaction and Employee acknowledges and agrees that successors are\nintended beneficiaries of this Agreement.\ne.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business\nso as to be enforceable to the fullest extent possible as to time, area and line of business.\nf. Employee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\ng. Employee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason,\nshall not constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in\nscope and duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is\njudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the\n7\nvalidity or enforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because\nof the duration of such provision or the area covered thereby, the court making such determination shall have the power to reduce the duration\nand/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable and\nshall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive\nCovenant in Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which\nmonetary damages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all\navailable civil remedies, including:\na.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part,\nhas been disclosed or used or is threatened to be disclosed or used; and\nb. Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly\nor indirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties\nfrom aiding and abetting any violations of the Restrictive Covenant; and\nc.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including\nwithout limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this\nAgreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined\nthat the Company or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to\nit for actual or threatened breach of the provisions of Paragraphs 1 – 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement.\nThe Company and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 – 8 of this Agreement\nand therefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\n11. Duty to Disclose Agreement and to Report New Employer. Employee acknowledges that the Company has a legitimate business purpose\nin the protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the\nidentity of his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to\nreasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated\nduties of employment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no\nproprietary information of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not\nprohibited from entering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement,\nrelationship agreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of\naction by any person or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other\nrestrictions inconsistent with the foregoing representations.\n13. Company Use of Employee Name, Image and Voice. The Company may use and publish Employee’s name and picture, including audio or\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day\nthat Employee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or\nother limitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission\nand/or state equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim\nin the manner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY\nFASHION TO EMPLOYEE’S EMPLOYMENT WITH COMPANY.\n17. Governing Law, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the\nlaws of state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any\nbreach or alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such\nservice of process may be made by certified or registered mail directed to Employee at the address stated in the signature section of this\nAgreement, with service so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue\nof any action instituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nEmployee further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company’s successors.\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the\n9\nmatters addressed herein, and supersedes all prior negotiations, preliminary agreements, and all prior and contemporaneous discussions and\nunderstandings of the signatories in connection with the subject matter of this Agreement, except however, that this Agreement shall be read in\npari materia with the Employment Agreement executed by Employee. This Agreement may be modified only by written instrument signed by\nthe Company and Employee.\n20. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable\nin any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as\nif such invalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of\nany subsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific\nrestrictive covenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by\nthe Company of any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices . All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified\nMail, return receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are\nentirely without substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat pdf file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE\nREPRESENTATIONS, COVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Robert J. Shovlin\n09/18/14\nEmployee Signature\nDate\nEmployee Name:\nRobert J. Shovlin\nEmployee Address: 15 Pine Tree Road\nRamsey, NJ 07446\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas VanOort\n09/16/14\nDate\nName: Douglas VanOort\nTitle: Chairman and CEO\n11	EX-10.2 3 d799884dex102.htm CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the “Agreement”) dated this 18th day of September, 2014 is entered\ninto by and between Robert J. Shovlin (“Employee”) and NeoGenomics, Inc., a Nevada corporation (“Employer” or the (“Parent Company”)\nand collectively with NeoGenomics Laboratories, Inc., a Florida corporation and any entity that is wholly or partially owned by the Parent\nCompany or otherwise affiliated with the Parent Company, the “Company”). Hereinafter, each of the Employee or the Company maybe referred\nto as a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, the Parties have entered into that certain Employment Agreement, of even dated herewith, that creates an employment\nrelationship between the Employer and Employee (the “Employment Agreement”); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company’s Confidentiality, Non-Solicitation\nand Non-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such\nemployment relationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company’s\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the\nentry into this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee’s\ntraining, and Employee’s training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agrees that all of the provisions of this Agreement except for Sections 7 and 8 hereof shall be effective as of the date of this\nAgreement. The Company and the Employee agree that Sections 7 and 8 hereof will not become effective until the Employee’s first day of\nemployment with the Company. Employee agrees that the term of this Agreement (“Term”) shall be as follows: (i) in the event that Employee\ndoes not actually become an employee of the Company as contemplated by the Employment Agreement, then the Term shall be for a period of\ntwo (2) years from the date of this Agreement, or (ii) in the event Employee does become an employee of the Company, then the term of this\nAgreement shall survive and continue to be in force and effect for two years following the termination of any employment\n1\nrelationship between the Parties, whether termination is by the Company with or without cause, wrongful discharge, or for any other reason\nwhatsoever, or by the Employee unless an exception is specifically provided in certain situations in any such Restrictive Covenants.\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that:\n(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records,\ncomputer disks or other computer storage medium, data, models or any photographic or other tangible materials containing such information,\nCustomer lists and names and other information, Customer contracts, other corporate contracts, computer programs, proprietary technical\ninformation and/or strategies, sales, promotional or marketing plans or strategies, programs, techniques, practices, any expansion plans\n(including existing and entry into new geographic and/or product markets), pricing information, product or service offering specifications or\nplans thereof, business plans, financial information and other financial plans, data pertaining to the Company’s operating performance, employee\nlists, salary information, Personal Information, Protected Health Information, all information the Company receives from customers or other third\nparties that is not generally known to the public or is subject to a confidentiality agreement, training manuals, and other materials and business\ninformation of a similar nature, including information about the Company itself or any affiliated entity, which Employee acknowledges and\nagrees has been compiled by the Company’s expenditure of a great amount of time, money and effort, and that contains detailed information that\ncould not be created independently from public sources. Further, all data, spreadsheets, reports, records, know-how, verbal communication,\nproprietary and technical information and/or other confidential materials of similar kind transmitted by the Company to Employee or developed\nby the Employee on behalf of the Company as Work Product (as defined in Paragraph 7) are expressly included within the definition of\n“Confidential Information.” The Parties further agree that the fact the Company may be seeking to complete a business transaction is\n“Confidential Information” within the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from\nConfidential Information. Nevertheless, Confidential Information shall not include any information of any kind which (1) is in the possession of\nthe Employee prior to the date of this Agreement, as shown by the Employee’s files and records, or (2) prior or after the time of disclosure\nbecomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any similar agreement with\nany other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any obligation of\nconfidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based thereon; or\n(5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for release\nby the non-disclosing party.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and\nlast name or first initial and last name in combination with any of the following: an individual’s social security number, tax [.D. number, social\ninsurance number, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or\ndebit card number.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received,\nand/or maintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies\nthe individual.\nd. The term “Customer” shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee’s employment with the Company.\ne. The term “Prospective Customer” shall mean any person or entity which has evidenced an intention to order products or services with\nthe Company within one year immediately preceding the termination of the Employee’s employment with the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in\nthis Agreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be\nenforced as is judged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of\nthe voting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing\nservices, including, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, and\nmolecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the\nterm of this Agreement and after the termination of employment with the Company for as long as such information remains non-public\ninformation, the Employee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether\nwritten or oral, tangible or intangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her employment with the Company and for no other purpose, (iii) take all reasonable precautions\nnecessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the\nprior written consent of the Company, (iv) observe all security policies implemented by the Company from time to time with respect to the\nConfidential Information, and (v) not use or disclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation,\nassociation or other legal entity, any Confidential Information, unless expressly permitted by this Agreement. Employee agrees that protection of\nthe Company’s Confidential Information constitutes a legitimate business interest justifying the restrictive covenants contained herein. Employee\nfurther agrees that the restrictive covenants contained herein are reasonably necessary to protect the Company’s legitimate business interest in\npreserving its Confidential Information. In addition, Employee will not view or access any PI or PHI unless required by the Company in the\ncourse Employee’s job duties and responsibilities for the Company and then only when authorized by the Company to do so. Employee\nacknowledges that he/she shall bear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent\npermitted by applicable law.\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall\ngive the Company at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and\nshall reasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nc. Employee acknowledge(s) that this “Confidential Information” is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this “Confidential Information” derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is\nthe subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all “Confidential Information” under this Agreement\nconstitutes “Trade Secrets” under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Employee’s relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other\nCompany purchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to\nEmployee is the exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company\neither upon termination of the Employee’s employment or at such other time as is requested by the Company. Employee agree(s) that upon\ntermination of employment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and\nelectronic copies, of Confidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any\ncomputer file or database maintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential\nInformation to the Company as described above, Employee will destroy any analysis, notes, work product or other materials relating to or\nderived from the Confidential Information. Any retention of Confidential Information may constitute “civil theft” as such term is defined in\nChapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or\non behalf of the Company. It is further understood and agreed that, after the Employee’s employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which\nuse Confidential Information through the Company’s then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation\nmaterials, course materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the\nCompany during the term of the Employee’s employment with the Company or any successor to the Company until the date of termination of the\nEmployee (collectively, the “Weork Product”), shall be considered a work made for hire and that the Company shall be the sole owner of all\nrights, including copyright, in and to the Work Product.\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or\notherwise protectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to\nthe Company in connection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in\nconnection therewith shall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless\nassigned by the Company to another entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during or\nafter the termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or\ntrademarks or other equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work\nof authorship, computer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for\nvesting such patents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the\nCompany absolutely and as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work\nproduct conceived by the Employee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing\nservices. The covenants contained in this Paragraph 8 (the “Restrictive Covenants”) are given and made by Employee to induce the Company to\nemploy Employee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive\nCovenants. Employee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination\nof such employment (such period of time is hereinafter referred to as the “Restrictive Period”), he/she will abide by the following restrictive\ncovenants unless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\nNotwithstanding the forgoing, the Company agrees that the Restrictive Period of the Non-Competition Covenant described in paragraph 8(b)\nbelow shall be reduced to one year in the event that the Company consummates a change of control within the first year of the Employee’s\nemployment with the Company and the Employee is terminated without “Cause” (as such term is defined in the Employment Agreement) within\nninety (90) days of the effective date of such change of control.\na.  Non-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in\none or a series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer,\ndirector or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other\nlegal entity:\n@) solicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\n(i)  request or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor,\nof the Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor\nwithin one year immediately preceding the termination of the Employee’s employment with the Company, to withdraw,\ncurtail, cancel or refrain from doing business with the Company in any capacity; or\n(iii) manage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv)  recruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with\nthe Company or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)  employ or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation\nafter his or her termination from the Company and he or she does not have any personal knowledge and/or control over the\nsolicitation of or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to\nthat employee.\nNon-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly,\nfor himself , or on behalf of others, as an individual on Employee’s own account, or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or\nother legal entity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Employee is\nengaged or a future employer of the Employee is selling the same or similar products and services in a Business which may compete\nwith the Company’s products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Employee that sell different types of products or services\nin the Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\n \nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability\nto support his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the\nCompany in a similar competitive environment. Along those lines, should the Employee leave the employment of the Employer for\nany reason, he or she would be prohibited from joining a for-profit cancer testing\n6\ngenetics laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit prenatal and pediatric/constitutional genetic\ntesting laboratories are excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this\nnon-compete clause to work in any non-profit cancer genetics testing laboratory (e.g., in academia) as well as in a private, for-profit\nprenatal laboratory or pediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is\nintended to prevent the Employee from acting in any of the capacities outlined in this paragraph for any “for-profit” cancer genetics\ntesting laboratories that do the type of any one or more of the types of testing defined in the definition of Business in the Restricted\nArea.\n9. Acknowledgements of Employee. d. The Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this\nAgreement and the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary\ndamages will be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company\nwill be entitled to the relief identified in Paragraph No. 10 below.\nThe Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence\nof any claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these\nRestrictive Covenants.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nEmployee agrees that this Agreement may be enforced by the Company’s successor in interest by way of merger, business\ncombination or consolidation where a majority of the surviving entity is not owned by Company’s shareholders who owned a\nmajority of the Company’s voting shares prior to such transaction and Employee acknowledges and agrees that successors are\nintended beneficiaries of this Agreement.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business\nso as to be enforceable to the fullest extent possible as to time, area and line of business.\nEmployee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\nEmployee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason,\nshall not constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in scope and duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is judged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the 7\nvalidity or enforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because\nof the duration of such provision or the area covered thereby, the court making such determination shall have the power to reduce the duration\nand/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable and\nshall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive\nCovenant in Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which\nmonetary damages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all\navailable civil remedies, including:\na.  Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part,\nhas been disclosed or used or is threatened to be disclosed or used; and\nb.  Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly\nor indirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties\nfrom aiding and abetting any violations of the Restrictive Covenant; and\nc.  Compensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including\nwithout limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this\nAgreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined\nthat the Company or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to\nit for actual or threatened breach of the provisions of Paragraphs 1 — 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement.\nThe Company and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 — 8 of this Agreement\nand therefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\nin the protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the\nidentity of his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to\nreasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated\nduties of employment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no\nproprietary information of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not\nprohibited from entering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement,\nrelationship agreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of\naction by any person or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other\nrestrictions inconsistent with the foregoing representations.\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day\nthat Employee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or\nother limitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission\nand/or state equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim\nin the manner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY\nFASHION TO EMPLOYEE’S EMPLOYMENT WITH COMPANY.\n17. Governing L.aw, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the\nlaws of state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any\nbreach or alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such\nservice of process may be made by certified or registered mail directed to Employee at the address stated in the signature section of this\nAgreement, with service so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue\nof any action instituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nEmployee further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company’s successors.\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the\n9\nmatters addressed herein, and supersedes all prior negotiations, preliminary agreements, and all prior and contemporaneous discussions and\nunderstandings of the signatories in connection with the subject matter of this Agreement, except however, that this Agreement shall be read in\npari materia with the Employment Agreement executed by Employee. This Agreement may be modified only by written instrument signed by\nthe Company and Employee.\n20. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable\nin any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as\nif such invalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of\nany subsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific\nrestrictive covenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by\nthe Company of any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices . All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified\nMail, return receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are\nentirely without substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat pdf file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE\nREPRESENTATIONS, COVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Robert J. Shovlin 09/18/14\nEmployee Signature Date\nEmployee Name: Robert J. Shovlin\nEmployee Address: 15 Pine Tree Road\nRamsey, NJ 07446\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas VanOort 09/16/14\nDate\nName: Douglas VanOort\nTitle: Chairman and CEO\n11	EX-10.2 3 d799884dex102.htm CONFIDENTIALITY NON-SOLICITATION AND NON-COMPETE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the "Agreement") dated this 18th day of September, 2014 is entered\ninto by and between Robert J. Shovlin ("Employee") and NeoGenomics, Inc., a Nevada corporation ("Employer" or the ("Parent Company")\nand collectively with NeoGenomics Laboratories, Inc., a Florida corporation and any entity that is wholly or partially owned by the Parent\nCompany or otherwise affiliated with the Parent Company, the "Company."). Hereinafter, each of the Employee or the Company maybe referred\nto as a "Party." and together be referred to as the "Parties".\nRECITALS:\nWHEREAS, the Parties have entered into that certain Employment Agreement, of even dated herewith, that creates an employment\nrelationship between the Employer and Employee (the "Employment Agreement"); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company's Confidentiality, Non-Solicitation\nand Non-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such\nemployment relationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company's\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the\nentry into this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee's\ntraining, and Employee's training and employment have caused, or will require, the disclosure of certain Company confidential and\nproprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agrees that all of the provisions of this Agreement except for Sections 7 and 8 hereof shall be effective as of the date of this\nAgreement. The Company and the Employee agree that Sections 7 and 8 hereof will not become effective until the Employee's first day of\nemployment with the Company. Employee agrees that the term of this Agreement ("Term") shall be as follows: (i) in the event that Employee\ndoes not actually become an employee of the Company as contemplated by the Employment Agreement, then the Term shall be for a period\nof\ntwo (2) years from the date of this Agreement, or (ii) in the event Employee does become an employee of the Company, then the term of this\nAgreement shall survive and continue to be in force and effect for two years following the termination of any employment\n1\nrelationship between the Parties, whether termination is by the Company with or without cause, wrongful discharge, or for any other reason\nwhatsoever, or by the Employee unless an exception is specifically provided in certain situations in any such Restrictive Covenants.\n2. Definitions.\na. The term "Confidential Information" as used herein shall include all business practices, methods, techniques, or processes that:\n(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records,\ncomputer disks or other computer storage medium, data, models or any photographic or other tangible materials containing such information,\nCustomer lists and names and other information, Customer contracts, other corporate contracts, computer programs, proprietary technical\ninformation and/or strategies, sales, promotional or marketing plans or strategies, programs, techniques, practices, any expansion plans\n(including existing and entry into new geographic and/or product markets), pricing information, product or service offering specifications\nor\nplans thereof, business plans, financial information and other financial plans, data pertaining to the Company's operating performance, employee\nlists, salary information, Personal Information, Protected Health Information, all information the Company receives from customers or other third\nparties that is not generally known to the public or is subject to a confidentiality agreement, training manuals, and other materials and business\ninformation of a similar nature, including information about the Company itself or any affiliated entity, which Employee acknowledges and\nagrees has been compiled by the Company's expenditure of a great amount of time, money and effort, and that contains detailed information that\ncould not be created independently from public sources. Further, all data, spreadsheets, reports, records, know-how, verbal communication,\nproprietary and technical information and/or other confidential materials of similar kind transmitted by the Company to Employee or developed\nby the Employee on behalf of the Company as Work Product (as defined in Paragraph 7) are expressly included within the definition of\n"Confidential Information." The Parties further agree that the fact the Company may be seeking to complete a business transaction is\n"Confidential Information" within the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from\nConfidential Information. Nevertheless, Confidential Information shall not include any information of any kind which (1) is in the possession of\nthe Employee prior to the date of this Agreement, as shown by the Employee's files and records, or (2) prior or after the time of disclosure\nbecomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any similar agreement\nwith\nany other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any obligation of\nconfidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based thereon; or\n(5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for release\nby the non-disclosing party.\nb. The term "Personal Information" ("PI") is Confidential Information and includes, but is not limited to, an individual's first name and\nlast name or first initial and last name in combination with any of the following: an individual's social security number, tax I.D. number, social\ninsurance number, driver's license number, state issued identification card number, financial information, healthcare information, or credit or\ndebit card number.\nC. The term "Protected Health Information" ("PHI") is Confidential Information and includes information that is created, received,\nand/or maintained by the Company related to an individual's health care (or payment related to health care) that directly or indirectly identifies\nthe individual.\n2\nd. The term "Customer" shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee's employment with the Company.\ne. The term "Prospective Customer' shall mean any person or entity which has evidenced an intention to order products or services with\nthe Company within one year immediately preceding the termination of the Employee's employment with the Company.\nf. The term "Restricted Area" shall include any geographical location anywhere in the United States. If the Restricted Area specified in\nthis Agreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be\nenforced as is judged to be reasonable.\ng. The phrase "directly or indirectly." shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of\nthe voting shares of an entity in the Business of Company.\nh. The term "Business" shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing\nservices, including, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization ("FISH"), morphological studies, and\nmolecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty. of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the\nterm of this Agreement and after the termination of employment with the Company for as long as such information remains non-public\ninformation, the Employee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information whether\nwritten or oral, tangible or intangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her employment with the Company and for no other purpose, (iii) take all reasonable precautions\nnecessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the\nprior\nwritten consent of the Company, (iv) observe all security policies implemented by the Company from time to time with respect to the\nConfidential Information, and (v) not use or disclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation,\nassociation or other legal entity, any Confidential Information, unless expressly permitted by this Agreement. Employee agrees that protection of\nthe Company's Confidential Information constitutes a legitimate business interest justifying the restrictive covenants contained herein. Employee\nfurther agrees that the restrictive covenants contained herein are reasonably necessary to protect the Company's legitimate business interest\nin\npreserving its Confidential Information. In addition, Employee will not view or access any PI or PHI unless required by the Company in the\ncourse Employee's job duties and responsibilities for the Company and then only when authorized by the Company to do so. Employee\nacknowledges that he/she shall bear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent\npermitted by applicable law.\n3\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall\ngive the Company at least two (2) weeks' notice, if practicable, of the basis for any such compelled disclosure of Confidentia Information and\nshall reasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nC. Employee acknowledge(s) that this "Confidential Information" is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this "Confidential Information" derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is\nthe subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all "Confidential Information" under this Agreement\nconstitutes "Trade Secrets" under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee's attorney, if any ("Representative(s)"), for the sole purpose of evaluating Employee's relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other\nCompany purchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided\nto\nEmployee is the exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company\neither upon termination of the Employee's employment or at such other time as is requested by the Company. Employee agree(s) that upon\ntermination of employment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and\nelectronic copies, of Confidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any\ncomputer file or database maintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential\nInformation to the Company as described above, Employee will destroy any analysis, notes, work product or other materials relating to or\nderived from the Confidential Information. Any retention of Confidential Information may constitute "civil theft" as such term is defined\nin\nChapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or\non behalf of the Company. It is further understood and agreed that, after the Employee's employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which\nuse Confidential Information through the Company's then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation\nmaterials, course materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for\nthe\nCompany during the term of the Employee's employment with the Company or any successor to the Company until the date of termination of the\nEmployee (collectively, the "Work Product"), shall be considered a work made for hire and that the Company shall be the sole owner of all\nrights, including copyright, in and to the Work Product.\n4\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or\notherwise protectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to\nthe Company in connection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in\nconnection therewith shall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless\nassigned by the Company to another entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during\nor\nafter the termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or\ntrademarks or other equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work\nof authorship, computer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for\nvesting such patents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the\nCompany absolutely and as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing,\nwork\nproduct conceived by the Employee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing\nservices. The covenants contained in this Paragraph 8 (the "Restrictive Covenants") are given and made by Employee to induce the Company to\nemploy Employee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive\nCovenants. Employee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination\nof such employment (such period of time is hereinafter referred to as the "Restrictive Period"), he/she will abide by the following restrictive\ncovenants unless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\nNotwithstanding the forgoing, the Company agrees that the Restrictive Period of the Non-Competition Covenant described in paragraph 8(b)\nbelow shall be reduced to one year in the event that the Company consummates a change of control within the first year of the Employee's\nemployment with the Company and the Employee is terminated without "Cause" (as such term is defined in the Employment Agreement) within\nninety (90) days of the effective date of such change of control.\na.\nNon-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in\none or a series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer,\ndirector or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other\nlegal entity:\n5\n(i)\nsolicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\n(ii)\nrequest or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor,\nof the Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor\nwithin one year immediately preceding the termination of the Employee's employment with the Company, to withdraw,\ncurtail, cancel or refrain from doing business with the Company in any capacity; or\n(iii)\nmanage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv)\nrecruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer agent, representative or any other person which has a business relationship with\nthe Company or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)\nemploy or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation\nafter his or her termination from the Company and he or she does not have any personal knowledge and/or control over the\nsolicitation of or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to\nthat employee.\nb.\nNon-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly,\nfor himself or on behalf of others, as an individual on Employee's own account, or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or\nother legal entity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Employee is\nengaged\nor a future employer of the Employee is selling the same or similar products and services in a Business which may compete\nwith the Company's products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Employee that sell different types of products or services\nin the Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability\nto support his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the\nCompany in a similar competitive environment. Along those lines, should the Employee leave the employment of the Employer for\nany reason, he or she would be prohibited from joining a for-profit cancer testing\n6\ngenetics laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit prenatal and pediatric/constitutiona genetic\ntesting laboratories are excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this\nnon-compete clause to work in any non-profit cancer genetics testing laboratory (e.g., in academia) as well as in a private, for-profit\nprenatal laboratory or pediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is\nintended to prevent the Employee from acting in any of the capacities outlined in this paragraph for any "for-profit" cancer genetics\ntesting laboratories that do the type of any one or more of the types of testing defined in the definition of Business in the Restricted\nArea.\n9. Acknowledgements of Employee.\na.\nThe Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this\nAgreement and the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary\ndamages will be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company\nwill be entitled to the relief identified in Paragraph No. 10 below.\nb.\nThe Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence\nof any claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these\nRestrictive Covenants.\nC.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nd.\nEmployee agrees that this Agreement may be enforced by the Company's successor in interest by way of merger, business\ncombination or consolidation where a majority of the surviving entity is not owned by Company's shareholders who owned a\nmajority of the Company's voting shares prior to such transaction and Employee acknowledges and agrees that successors are\nintended beneficiaries of this Agreement.\ne.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business\nso as to be enforceable to the fullest extent possible as to time, area and line of business.\nf.\nEmployee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\ng.\nEmployee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason,\nshall not constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in\nscope and duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is\njudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the\n7\nvalidity or enforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because\nof the duration of such provision or the area covered thereby, the court making such determination shall have the power to reduce the duration\nand/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable and\nshall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive\nCovenant in Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which\nmonetary damages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all\navailable civil remedies, including:\na.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part,\nhas been disclosed or used or is threatened to be disclosed or used; and\nb.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly\nor indirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties\nfrom aiding and abetting any violations of the Restrictive Covenant; and\nC.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including\nwithout limitation, all attorneys' fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this\nAgreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined\nthat the Company or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to\nit\nfor actual or threatened breach of the provisions of Paragraphs 1 - 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement.\nThe Company and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 - 8 of this Agreement\nand therefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\n11. Duty to Disclose Agreement and to Report New Employer. Employee acknowledges that the Company has a legitimate business purpose\nin\nthe\nprotection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the\nidentity of his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to\nreasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated\nduties of employment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no\nproprietary information of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not\nprohibited from entering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement,\nrelationship agreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of\naction by any person or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other\nrestrictions inconsistent with the foregoing representations.\n13. Company Use of Employee Name, Image and Voice. The Company may use and publish Employee's name and picture, including audio or\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day\nthat Employee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or\nother limitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission\nand/or state equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim\nin the manner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY\nFASHION TO EMPLOYEE'S EMPLOYMENT WITH COMPANY.\n17. Governing Law, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the\nlaws of state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any\nbreach or alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such\nservice of process may be made by certified or registered mail directed to Employee at the address stated in the signature section of this\nAgreement, with service so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue\nof any action instituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nEmployee further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company's successors.\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the\n9\nmatters addressed herein, and supersedes all prior negotiations, preliminary agreements, and all prior and contemporaneous discussions and\nunderstandings of the signatories in connection with the subject matter of this Agreement, except however, that this Agreement shall be read in\npari materia with the Employment Agreement executed by Employee. This Agreement may be modified only by written instrument signed by\nthe Company and Employee.\n20. Severability.. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable\nin any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as\nif such invalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver\nof\nany subsequent breach by Employee unless such waiver SO provides by its terms. The refusal or failure of the Company to enforce any specific\nrestrictive covenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by\nthe Company of any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified\nMail, return receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are\nentirely without substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat pdf file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE\nREPRESENTATIONS, COVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Robert J. Shovlin\n09/18/14\nEmployee Signature\nDate\nEmployee Name:\nRobert J. Shovlin\nEmployee Address:\n15 Pine Tree Road\nRamsey, NJ 07446\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas VanOort\n09/16/14\nDate\nName: Douglas VanOort\nTitle: Chairman and CEO\n11	EX-10.2 3 d799884dex102.htm CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the “Agreement”) dated this 18th day of September, 2014 is entered\ninto by and between Robert J. Shovlin (“Employee”) and NeoGenomics, Inc., a Nevada corporation (“Employer” or the (“Parent Company”)\nand collectively with NeoGenomics Laboratories, Inc., a Florida corporation and any entity that is wholly or partially owned by the Parent\nCompany or otherwise affiliated with the Parent Company, the “Company”). Hereinafter, each of the Employee or the Company maybe referred\nto as a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, the Parties have entered into that certain Employment Agreement, of even dated herewith, that creates an employment\nrelationship between the Employer and Employee (the “Employment Agreement”); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company’s Confidentiality, Non-Solicitation\nand Non-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such\nemployment relationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company’s\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the\nentry into this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee’s\ntraining, and Employee’s training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agrees that all of the provisions of this Agreement except for Sections 7 and 8 hereof shall be effective as of the date of this\nAgreement. The Company and the Employee agree that Sections 7 and 8 hereof will not become effective until the Employee’s first day of\nemployment with the Company. Employee agrees that the term of this Agreement (“Term”) shall be as follows: (i) in the event that Employee\ndoes not actually become an employee of the Company as contemplated by the Employment Agreement, then the Term shall be for a period of\ntwo (2) years from the date of this Agreement, or (ii) in the event Employee does become an employee of the Company, then the term of this\nAgreement shall survive and continue to be in force and effect for two years following the termination of any employment\n1\nrelationship between the Parties, whether termination is by the Company with or without cause, wrongful discharge, or for any other reason\nwhatsoever, or by the Employee unless an exception is specifically provided in certain situations in any such Restrictive Covenants.\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that:\n(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records,\ncomputer disks or other computer storage medium, data, models or any photographic or other tangible materials containing such information,\nCustomer lists and names and other information, Customer contracts, other corporate contracts, computer programs, proprietary technical\ninformation and/or strategies, sales, promotional or marketing plans or strategies, programs, techniques, practices, any expansion plans\n(including existing and entry into new geographic and/or product markets), pricing information, product or service offering specifications or\nplans thereof, business plans, financial information and other financial plans, data pertaining to the Company’s operating performance, employee\nlists, salary information, Personal Information, Protected Health Information, all information the Company receives from customers or other third\nparties that is not generally known to the public or is subject to a confidentiality agreement, training manuals, and other materials and business\ninformation of a similar nature, including information about the Company itself or any affiliated entity, which Employee acknowledges and\nagrees has been compiled by the Company’s expenditure of a great amount of time, money and effort, and that contains detailed information that\ncould not be created independently from public sources. Further, all data, spreadsheets, reports, records, know-how, verbal communication,\nproprietary and technical information and/or other confidential materials of similar kind transmitted by the Company to Employee or developed\nby the Employee on behalf of the Company as Work Product (as defined in Paragraph 7) are expressly included within the definition of\n“Confidential Information.” The Parties further agree that the fact the Company may be seeking to complete a business transaction is\n“Confidential Information” within the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from\nConfidential Information. Nevertheless, Confidential Information shall not include any information of any kind which (1) is in the possession of\nthe Employee prior to the date of this Agreement, as shown by the Employee’s files and records, or (2) prior or after the time of disclosure\nbecomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any similar agreement with\nany other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any obligation of\nconfidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based thereon; or\n(5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for release\nby the non-disclosing party.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and\nlast name or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D. number, social\ninsurance number, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or\ndebit card number.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received,\nand/or maintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies\nthe individual.\n2\nd. The term “Customer” shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee’s employment with the Company.\ne. The term “Prospective Customer” shall mean any person or entity which has evidenced an intention to order products or services with\nthe Company within one year immediately preceding the termination of the Employee’s employment with the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in\nthis Agreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be\nenforced as is judged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of\nthe voting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing\nservices, including, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, and\nmolecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the\nterm of this Agreement and after the termination of employment with the Company for as long as such information remains non-public\ninformation, the Employee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether\nwritten or oral, tangible or intangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her employment with the Company and for no other purpose, (iii) take all reasonable precautions\nnecessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the\nprior written consent of the Company, (iv) observe all security policies implemented by the Company from time to time with respect to the\nConfidential Information, and (v) not use or disclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation,\nassociation or other legal entity, any Confidential Information, unless expressly permitted by this Agreement. Employee agrees that protection of\nthe Company’s Confidential Information constitutes a legitimate business interest justifying the restrictive covenants contained herein. Employee\nfurther agrees that the restrictive covenants contained herein are reasonably necessary to protect the Company’s legitimate business interest in\npreserving its Confidential Information. In addition, Employee will not view or access any PI or PHI unless required by the Company in the\ncourse Employee’s job duties and responsibilities for the Company and then only when authorized by the Company to do so. Employee\nacknowledges that he/she shall bear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent\npermitted by applicable law.\n3\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall\ngive the Company at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and\nshall reasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nc. Employee acknowledge(s) that this “Confidential Information” is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this “Confidential Information” derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is\nthe subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all “Confidential Information” under this Agreement\nconstitutes “Trade Secrets” under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Employee’s relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other\nCompany purchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to\nEmployee is the exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company\neither upon termination of the Employee’s employment or at such other time as is requested by the Company. Employee agree(s) that upon\ntermination of employment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and\nelectronic copies, of Confidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any\ncomputer file or database maintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential\nInformation to the Company as described above, Employee will destroy any analysis, notes, work product or other materials relating to or\nderived from the Confidential Information. Any retention of Confidential Information may constitute “civil theft” as such term is defined in\nChapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or\non behalf of the Company. It is further understood and agreed that, after the Employee’s employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which\nuse Confidential Information through the Company’s then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation\nmaterials, course materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the\nCompany during the term of the Employee’s employment with the Company or any successor to the Company until the date of termination of the\nEmployee (collectively, the “Work Product”), shall be considered a work made for hire and that the Company shall be the sole owner of all\nrights, including copyright, in and to the Work Product.\n4\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or\notherwise protectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to\nthe Company in connection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in\nconnection therewith shall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless\nassigned by the Company to another entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during or\nafter the termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or\ntrademarks or other equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work\nof authorship, computer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for\nvesting such patents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the\nCompany absolutely and as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work\nproduct conceived by the Employee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing\nservices. The covenants contained in this Paragraph 8 (the “Restrictive Covenants”) are given and made by Employee to induce the Company to\nemploy Employee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive\nCovenants. Employee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination\nof such employment (such period of time is hereinafter referred to as the “Restrictive Period”), he/she will abide by the following restrictive\ncovenants unless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\nNotwithstanding the forgoing, the Company agrees that the Restrictive Period of the Non-Competition Covenant described in paragraph 8(b)\nbelow shall be reduced to one year in the event that the Company consummates a change of control within the first year of the Employee’s\nemployment with the Company and the Employee is terminated without “Cause” (as such term is defined in the Employment Agreement) within\nninety (90) days of the effective date of such change of control.\na.\nNon-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in\none or a series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer,\ndirector or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other\nlegal entity:\n5\n(i) solicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\n(ii) request or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor,\nof the Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor\nwithin one year immediately preceding the termination of the Employee’s employment with the Company, to withdraw,\ncurtail, cancel or refrain from doing business with the Company in any capacity; or\n(iii) manage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv) recruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with\nthe Company or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)\nemploy or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation\nafter his or her termination from the Company and he or she does not have any personal knowledge and/or control over the\nsolicitation of or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to\nthat employee.\nb. Non-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly,\nfor himself , or on behalf of others, as an individual on Employee’s own account, or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or\nother legal entity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Employee is\nengaged or a future employer of the Employee is selling the same or similar products and services in a Business which may compete\nwith the Company’s products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Employee that sell different types of products or services\nin the Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability\nto support his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the\nCompany in a similar competitive environment. Along those lines, should the Employee leave the employment of the Employer for\nany reason, he or she would be prohibited from joining a for-profit cancer testing\n6\ngenetics laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit prenatal and pediatric/constitutional genetic\ntesting laboratories are excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this\nnon-compete clause to work in any non-profit cancer genetics testing laboratory (e.g ., in academia) as well as in a private, for-profit\nprenatal laboratory or pediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is\nintended to prevent the Employee from acting in any of the capacities outlined in this paragraph for any “for-profit” cancer genetics\ntesting laboratories that do the type of any one or more of the types of testing defined in the definition of Business in the Restricted\nArea.\n9. Acknowledgements of Employee.\na.\nThe Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this\nAgreement and the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary\ndamages will be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company\nwill be entitled to the relief identified in Paragraph No. 10 below.\nb. The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence\nof any claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these\nRestrictive Covenants.\nc.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nd. Employee agrees that this Agreement may be enforced by the Company’s successor in interest by way of merger, business\ncombination or consolidation where a majority of the surviving entity is not owned by Company’s shareholders who owned a\nmajority of the Company’s voting shares prior to such transaction and Employee acknowledges and agrees that successors are\nintended beneficiaries of this Agreement.\ne.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business\nso as to be enforceable to the fullest extent possible as to time, area and line of business.\nf. Employee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\ng. Employee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason,\nshall not constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in\nscope and duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is\njudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the\n7\nvalidity or enforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because\nof the duration of such provision or the area covered thereby, the court making such determination shall have the power to reduce the duration\nand/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable and\nshall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive\nCovenant in Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which\nmonetary damages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all\navailable civil remedies, including:\na.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part,\nhas been disclosed or used or is threatened to be disclosed or used; and\nb. Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly\nor indirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties\nfrom aiding and abetting any violations of the Restrictive Covenant; and\nc.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including\nwithout limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this\nAgreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined\nthat the Company or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to\nit for actual or threatened breach of the provisions of Paragraphs 1 – 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement.\nThe Company and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 – 8 of this Agreement\nand therefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\n11. Duty to Disclose Agreement and to Report New Employer. Employee acknowledges that the Company has a legitimate business purpose\nin the protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the\nidentity of his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to\nreasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated\nduties of employment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no\nproprietary information of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not\nprohibited from entering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement,\nrelationship agreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of\naction by any person or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other\nrestrictions inconsistent with the foregoing representations.\n13. Company Use of Employee Name, Image and Voice. The Company may use and publish Employee’s name and picture, including audio or\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day\nthat Employee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or\nother limitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission\nand/or state equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim\nin the manner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY\nFASHION TO EMPLOYEE’S EMPLOYMENT WITH COMPANY.\n17. Governing Law, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the\nlaws of state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any\nbreach or alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such\nservice of process may be made by certified or registered mail directed to Employee at the address stated in the signature section of this\nAgreement, with service so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue\nof any action instituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nEmployee further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company’s successors.\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the\n9\nmatters addressed herein, and supersedes all prior negotiations, preliminary agreements, and all prior and contemporaneous discussions and\nunderstandings of the signatories in connection with the subject matter of this Agreement, except however, that this Agreement shall be read in\npari materia with the Employment Agreement executed by Employee. This Agreement may be modified only by written instrument signed by\nthe Company and Employee.\n20. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable\nin any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as\nif such invalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of\nany subsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific\nrestrictive covenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by\nthe Company of any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices . All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified\nMail, return receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are\nentirely without substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat pdf file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE\nREPRESENTATIONS, COVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Robert J. Shovlin\n09/18/14\nEmployee Signature\nDate\nEmployee Name:\nRobert J. Shovlin\nEmployee Address: 15 Pine Tree Road\nRamsey, NJ 07446\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas VanOort\n09/16/14\nDate\nName: Douglas VanOort\nTitle: Chairman and CEO\n11
6211e890a4e0b485e2aea5650bbcc8c1.pdf	effective_date jurisdiction party term	EX-99.D.2 11 d837450dex99d2.htm EX-99.D.2\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of MAY 13, 2013 (the “Effective Date”),\ngoverns the disclosure of information by and between AVANIR PHARMACEUTICALS, INC., a Delaware corporation, with offices located at 20\nEnterprise, Suite 200, Aliso Viejo, California, 92656, and OTSUKA PHARMACEUTICAL CO. LTD. a JAPANESE CORPORATION, with offices\nlocated at 2-9, KANDA TSUKASA-MACHI, CHIYODA-KU, TOKYO 101-8535, JAPAN (each a “party” and sometimes collectively referred to as\nthe “parties” to this Agreement).\n1. Purpose. This Agreement is made to define the terms and conditions under which any confidential information will be protected by and\ndisclosed between the parties during the term of this Agreement, for the sole purpose of evaluating a global research and development, and\ncommercial partnership, for NUEDEXTA and/or its compound AVP-786 (the “Purpose”).\n2. Confidential Information. As used herein, “Confidential Information” means, with respect to each party, any and all technical, business and\nfinancial information, including third party information, relating to the disclosing party or any of its affiliates that is furnished or disclosed, in\nwhatever form or medium, provided that (i) in the case of information provided in tangible form or by electronic media, it is marked with, or\naccompanied by, the legend “CONFIDENTIAL” (or other similar marking conveying the same intent); (ii) in the case of information disclosed\nby visual display or orally, it is identified as confidential when revealed and summarized in a writing so marked, referencing the date and type of\ninformation disclosed, delivered to the receiving party within thirty(30) days of such disclosure, before or after the Effective Date. “Confidential\nInformation” includes but is not limited to: (a) patents, patent applications; (b) trade secrets; (c) design rights, trademarks, copyrights, database\nrights and other intellectual property rights; and (d) other proprietary information, ideas, concepts, chemical compounds, assays, biological\nmaterials, gene sequences, cell lines, samples, data, techniques, sketches, drawings, works of authorship, models, inventions, source code, know-\nhow, processes, operations, programs, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of\neach of the parties, and including, without limitation, their respective information concerning research, experimental work, clinical testing,\nregulatory information, development, design details and specifications, engineering, financial information, procurement requirements,\npurchasing, manufacturing, customer lists, investors, patients, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party or any of its affiliates provides.\n3. Obligations. Each party agrees to disclose to the other only that Confidential Information that is reasonably necessary to enable the receiving\nparty to complete the Purpose. Each party agrees: (a) to use the other party’s Confidential Information solely for the Purpose stated above and for\nno other reason; (b) to protect the confidentiality of the other party’s Confidential Information; (c) not to disclose any of the other party’s\nConfidential Information to anyone, except those employees, officers, directors, consultants or other authorized representatives, of the receiving\nparty or its affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are\notherwise bound by confidentiality obligations at least as restrictive as those contained herein (collectively, the “Authorized Representative”);\n(d) to notify appropriately such Authorized Representative that the disclosure is made in confidence and to require them to keep the same in\nconfidence in accordance with the terms and conditions of this Agreement, and to enforce those terms and conditions; and (e) if directed, to limit\nas directed the number of copies made of the other party’s Confidential Information, Each party agrees to immediately notify the other upon\ndiscovery of any loss or unauthorized disclosure of the Confidential Information of the other party, and to remedy any such loss or unauthorized\ndisclosure as reasonably requested by the disclosing party. The receiving party shall provide a list of all recipients of the disclosing party’s\nConfidential Information upon request within ten (10) days of such request.\nPage|1of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that: (a) the receiving\nparty can show is already known to the receiving party prior to the other party’s or its affiliate’s disclosure as evidenced by contemporaneous\nwritten evidence; (b) is or becomes publicly available through no fault of the receiving party; or (c) is obtained by the receiving party from a\nthird person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed.\nNotwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination\nof features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the\npossession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of\nthe receiving party. The receiving party may disclose the Confidential Information of the other party to the extent required pursuant to the lawful\norder of a government agency or disclosure is required by operation of the law, provided that the party to make such disclosure provides the other\nparty with prior written notice in order to permit the other party to seek confidential treatment of such information.\n5. Handling of Information and Materials. Confidential Information will not be reproduced in any form, manner or medium except as required\nto accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the other party by either party will remain the\nproperty of the disclosing party or its affiliate, as applicable, and will contain any and all confidential or proprietary notices or legends which\nappear on the original, unless otherwise authorized in writing by the other party. Upon termination or expiration of this Agreement, or upon\nwritten request of the other party, the receiving party will either promptly return to such other party or destroy, at such other party’s option, all\ndocuments and other tangible materials representing such other party’s Confidential Information (including summaries, notes, memoranda and\nabstracts) and all copies thereof; provided, however, that the receiving party may retain one copy of the other party’s Confidential Information\nfor purposes of compliance with the terms of this Agreement. For the avoidance of doubt, the receiving party shall not be expected to purge any\ndisclosing party’s Confidential Information stored in its electronic archive system and such Confidential Information shall be subject to the\nconfidentiality and non-use obligations imposed under this Agreement.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement is intended to amount to or implies any transfer,\nlicense or other grant of rights in relation to the Confidential Information owned or used by the other party. Neither party will make, have made,\nuse or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the other party.\n7. Term and Termination. This Agreement will terminate two (2) years after the Effective Date. The receiving party’s obligations under this\nAgreement will survive termination of this Agreement for a period of five (5) years after such termination and will be binding upon the receiving\nparty’s heirs, successors and assigns after such termination or expiration.\n8. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth below (unless either\nprovides written notice of a different address) and will be deemed given: (a) upon delivery if sent by facsimile or by overnight courier; or\n(b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n9. Use of Names. Except as may be required by law, each party further agrees not to use the name, trademark, service mark, logo, or other\nidentifying characteristic (“Name”) of the other party or any of its affiliates or any of their respective trustees, directors, officers, staff members,\nemployees, students or\nPage|2of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nagents in any advertising, promotional or sales literature, publicity or in any document employed to obtain funds or financing without the prior\nwritten approval of the party or individual whose Name is to be used. This Section 9 shall survive any termination or expiration of this\nAgreement.\n10. Rule 10-b5 Limitations. The receiving party acknowledges, on behalf of itself and any of its affiliates, personnel or agents, that the United\nStates securities laws prohibit any person who has material non-public information about a company or its securities from purchasing or selling\nsecurities of such company, or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. The receiving party covenants to refrain from purchasing or selling\nsecurities of the disclosing party and from communicating all non-public information about the disclosing party or its securities in violation of\nsuch securities laws.\n11. Securities Transactions. Each party agrees that, for a period of five (5) years from the date of this Agreement, neither party or its affiliates\nwill, without the prior written consent of the Board of Directors of the “applicable party”: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the applicable\nparty or any subsidiary thereof, or of any successor to or person in control of the applicable party, or any assets of the applicable party or any\nsubsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any\nperson or entity with respect to the voting of, any voting securities of the applicable party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the applicable party or its securities or\nassets; (iv) form, join or in any way participate in a “group” (as defined in Section 13 (d)(3), Securities Exchange Act of 1934, as amended) in\nconnection with any of the foregoing; or (v) request the applicable party directly or indirectly, to amend or waive any provision of this paragraph.\n12. Employment Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither party shall, without the prior\nwritten consent of the other party, directly solicit the employment of any person who is employed by the other party and was directly involved\nwith the activities connected with this Agreement. The provisions of this section shall not apply with respect to either party’s employees who\nseek employment from the other party on their own initiative, such as, but not limited to, in response to a party’s general vacancy announcement\nor advertisement.\n13. General.\na) Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter of this\nAgreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The\nheadings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the\nconstruction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified\nby either party, unless such waiver, amendment or modification is made in writing and signed by both parties.\nb) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California U.S.A.,\nwithout reference to conflict of laws principles or any rule applying the law of another jurisdiction. Any action, matter or lawsuit\narising from or related to this Agreement shall be brought exclusively in California, and each party hereby consents to this\njurisdiction unless otherwise agreed upon in writing by the parties. Each party acknowledges that money damages is not an adequate\nremedy for a breach or potential breach of the terms of this Agreement and hereby agrees that the other party will be entitled to seek\ninjunctive or other equitable relief under this Agreement, as well as such further relief, rights and remedies as may be granted at law\nor equity by a court of competent jurisdiction.\nPage|3of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nc) Unenforceability / Invalidity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such\nunenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed\nand interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law\nor applicable court decisions.\nd) Assignment. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of\nthe other party.\ne) No Export Rights. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\nf) Signatures. Authenticated electronic signatures (e.g . facsimile, scanned) will have the same legal effect as original signatures.\n[remainder of this page intentionally left blank]\nPage|4of5\nMUTUAL NON-DISCLOSURE AGREEMENT\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of\nthe Effective Date. Each individual signing for a corporate entity hereby personally warrants his or her legal authority to bind that entity and its\naffiliates.\nAVANIR PHARMACEUTICALS, INC.\nOTSUKA PHARMACEUTICAL CO., LTD.\nBy: /s/ Gregory J. Flesher\nBy: /s/ Michael Levy\nName: Gregory J. Flesher\nName: Michael Levy\nTitle: CBO\nTitle: EVP, OPBC\nAddress:\n20 Enterprise, Suite 200\nAliso Viejo, California 92656\nATTN: Gregory J. Flesher, CBO & SVP\nAddress:\n2-9, KANDA TSUKASA-MACHI,\nCHIYODA-KU, TOKYO 101-8535, JAPAN\nPage|5of5	EX-99.D.2 11 d837450dex99d2.htm EX-99.D.2\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of MAY 13, 2013 (the “Effective Date”),\ngoverns the disclosure of information by and between AVANIR PHARMACEUTICALS, INC., a Delaware corporation, with offices located at 20\nEnterprise, Suite 200, Aliso Viejo, California, 92656, and OTSUKA PHARMACEUTICAL CO. LTD. a JAPANESE CORPORATION, with offices\nlocated at 2-9, KANDA TSUKASA-MACHI, CHIYODA-KU, TOKYO 101-8535, JAPAN (each a “party” and sometimes collectively referred to as\nthe “parties” to this Agreement).\n1. Purpose. This Agreement is made to define the terms and conditions under which any confidential information will be protected by and\ndisclosed between the parties during the term of this Agreement, for the sole purpose of evaluating a global research and development, and\ncommercial partnership, for NUEDEXTA and/or its compound AVP-786 (the “Purpose”).\n2. Confidential Information. As used herein, “Confidential Information” means, with respect to each party, any and all technical, business and\nfinancial information, including third party information, relating to the disclosing party or any of its affiliates that is furnished or disclosed, in\nwhatever form or medium, provided that (i) in the case of information provided in tangible form or by electronic media, it is marked with, or\naccompanied by, the legend “CONFIDENTIAL” (or other similar marking conveying the same intent); (ii) in the case of information disclosed\nby visual display or orally, it is identified as confidential when revealed and summarized in a writing so marked, referencing the date and type of\ninformation disclosed, delivered to the receiving party within thirty(30) days of such disclosure, before or after the Effective Date. “Confidential\nInformation” includes but is not limited to: (a) patents, patent applications; (b) trade secrets; (c) design rights, trademarks, copyrights, database\nrights and other intellectual property rights; and (d) other proprietary information, ideas, concepts, chemical compounds, assays, biological\nmaterials, gene sequences, cell lines, samples, data, techniques, sketches, drawings, works of authorship, models, inventions, source code, know-\nhow, processes, operations, programs, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of\neach of the parties, and including, without limitation, their respective information concerning research, experimental work, clinical testing,\nregulatory information, development, design details and specifications, engineering, financial information, procurement requirements,\npurchasing, manufacturing, customer lists, investors, patients, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party or any of its affiliates provides.\n3. Obligations. Each party agrees to disclose to the other only that Confidential Information that is reasonably necessary to enable the receiving\nparty to complete the Purpose. Each party agrees: (a) to use the other party’s Confidential Information solely for the Purpose stated above and for\nno other reason; (b) to protect the confidentiality of the other party’s Confidential Information; (c) not to disclose any of the other party’s\nConfidential Information to anyone, except those employees, officers, directors, consultants or other authorized representatives, of the receiving\nparty or its affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are\notherwise bound by confidentiality obligations at least as restrictive as those contained herein (collectively, the “Authorized Representative”);\n(d) to notify appropriately such Authorized Representative that the disclosure is made in confidence and to require them to keep the same in\nconfidence in accordance with the terms and conditions of this Agreement, and to enforce those terms and conditions; and (e) if directed, to limit\nas directed the number of copies made of the other party’s Confidential Information, Each party agrees to immediately notify the other upon\ndiscovery of any loss or unauthorized disclosure of the Confidential Information of the other party, and to remedy any such loss or unauthorized\ndisclosure as reasonably requested by the disclosing party. The receiving party shall provide a list of all recipients of the disclosing party’s\nConfidential Information upon request within ten (10) days of such request.\nPage| 1of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that: (a) the receiving\nparty can show is already known to the receiving party prior to the other party’s or its affiliate’s disclosure as evidenced by contemporaneous\nwritten evidence; (b) is or becomes publicly available through no fault of the receiving party; or (c) is obtained by the receiving party from a\nthird person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed.\nNotwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination\nof features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the\npossession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of\nthe receiving party. The receiving party may disclose the Confidential Information of the other party to the extent required pursuant to the lawful\norder of a government agency or disclosure is required by operation of the law, provided that the party to make such disclosure provides the other\nparty with prior written notice in order to permit the other party to seek confidential treatment of such information.\n5. Handling of Information and Materials. Confidential Information will not be reproduced in any form, manner or medium except as required\nto accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the other party by either party will remain the\nproperty of the disclosing party or its affiliate, as applicable, and will contain any and all confidential or proprietary notices or legends which\nappear on the original, unless otherwise authorized in writing by the other party. Upon termination or expiration of this Agreement, or upon\nwritten request of the other party, the receiving party will either promptly return to such other party or destroy, at such other party’s option, all\ndocuments and other tangible materials representing such other party’s Confidential Information (including summaries, notes, memoranda and\nabstracts) and all copies thereof; provided, however, that the receiving party may retain one copy of the other party’s Confidential Information\nfor purposes of compliance with the terms of this Agreement. For the avoidance of doubt, the receiving party shall not be expected to purge any\ndisclosing party’s Confidential Information stored in its electronic archive system and such Confidential Information shall be subject to the\nconfidentiality and non-use obligations imposed under this Agreement.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement is intended to amount to or implies any transfer,\nlicense or other grant of rights in relation to the Confidential Information owned or used by the other party. Neither party will make, have made,\nuse or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the other party.\n7. Term and Termination. This Agreement will terminate two (2) years after the Effective Date. The receiving party’s obligations under this\nAgreement will survive termination of this Agreement for a period of five (5) years after such termination and will be binding upon the receiving\nparty’s heirs, successors and assigns after such termination or expiration.\n8. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth below (unless either\nprovides written notice of a different address) and will be deemed given: (a) upon delivery if sent by facsimile or by overnight courier; or\n(b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n9. Use of Names. Except as may be required by law, each party further agrees not to use the name, trademark, service mark, logo, or other\nidentifying characteristic (“Name”) of the other party or any of its affiliates or any of their respective trustees, directors, officers, staff members,\nemployees, students or\nPage| 20of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nagents in any advertising, promotional or sales literature, publicity or in any document employed to obtain funds or financing without the prior\nwritten approval of the party or individual whose Name is to be used. This Section 9 shall survive any termination or expiration of this\nAgreement.\n10. Rule 10-b5 Limitations. The receiving party acknowledges, on behalf of itself and any of its affiliates, personnel or agents, that the United\nStates securities laws prohibit any person who has material non-public information about a company or its securities from purchasing or selling\nsecurities of such company, or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. The receiving party covenants to refrain from purchasing or selling\nsecurities of the disclosing party and from communicating all non-public information about the disclosing party or its securities in violation of\nsuch securities laws.\n11. Securities Transactions. Each party agrees that, for a period of five (5) years from the date of this Agreement, neither party or its affiliates\nwill, without the prior written consent of the Board of Directors of the “applicable party”: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the applicable\nparty or any subsidiary thereof, or of any successor to or person in control of the applicable party, or any assets of the applicable party or any\nsubsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any\nperson or entity with respect to the voting of, any voting securities of the applicable party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the applicable party or its securities or\nassets; (iv) form, join or in any way participate in a “group” (as defined in Section 13 (d)(3), Securities Exchange Act of 1934, as amended) in\nconnection with any of the foregoing; or (v) request the applicable party directly or indirectly, to amend or waive any provision of this paragraph.\n12. Employment Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither party shall, without the prior\nwritten consent of the other party, directly solicit the employment of any person who is employed by the other party and was directly involved\nwith the activities connected with this Agreement. The provisions of this section shall not apply with respect to either party’s employees who\nseek employment from the other party on their own initiative, such as, but not limited to, in response to a party’s general vacancy announcement\nor advertisement.\n13. General.\na) Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter of this\nAgreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The\nheadings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the\nconstruction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified\nby either party, unless such waiver, amendment or modification is made in writing and signed by both parties.\nb)  Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California U.S.A.,\nwithout reference to conflict of laws principles or any rule applying the law of another jurisdiction. Any action, matter or lawsuit\narising from or related to this Agreement shall be brought exclusively in California, and each party hereby consents to this\njurisdiction unless otherwise agreed upon in writing by the parties. Each party acknowledges that money damages is not an adequate\nremedy for a breach or potential breach of the terms of this Agreement and hereby agrees that the other party will be entitled to seek\ninjunctive or other equitable relief under this Agreement, as well as such further relief, rights and remedies as may be granted at law\nor equity by a court of competent jurisdiction.\nPage| 3of 5\n<)\nd)\nf)\nMUTUAL NON-DISCLOSURE AGREEMENT\nUnenforceability / Invalidity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such\nunenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed\nand interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law\nor applicable court decisions.\nAssignment. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of\nthe other party.\nNo Export Rights. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\nSignatures. Authenticated electronic signatures (e.g. facsimile, scanned) will have the same legal effect as original signatures.\n[remainder of this page intentionally left blank]\nPage| 40f 5\fMUTUAL NON-DISCLOSURE AGREEMENT\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date. Each individual signing for a corporate entity hereby personally warrants his or her legal authority to bind that entity and its affiliates.\nAVANIR PHARMACEUTICALS, INC.\nBy:  /s/ Gregory J. Flesher\nName: Gregory J. Flesher\nTitle: CBO\nAddress:\n20 Enterprise, Suite 200\nAliso Viejo, California 92656\nATTN: Gregory J. Flesher, CBO & SVP\nOTSUKA PHARMACEUTICAL CO., LTD.\nBy: /s/ Michael Levy\nName: Michael Levy\nTitle: EVP, OPBC\nAddress:\n2-9, KANDA TSUKASA-MACHI,\nCHIYODA-KU, TOKYO 101-8535, JAPAN\nPage| 5of 5	EX-99.D.2 11 d837450dex99d2.htm EX-99.D.2\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement"), entered into as of May 13, 2013 (the "Effective Date"),\ngoverns\nthe\ndisclosure of information by and between AVANIR PHARMACEUTICALS, INC., a Delaware corporation, with offices located at 20\nEnterprise, Suite 200, Aliso Viejo, California, 92656, and OTSUKA PHARMACEUTICAL Co. LTD. a JAPANESE CORPORATION, with offices\nlocated at 2-9, KANDA TSUKASA-MACHI, CHIYODA-KU, TOKYO 101-8535, JAPAN (each a "party" and sometimes collectively referred to as\nthe "parties" to this Agreement).\n1. Purpose. This Agreement is made to define the terms and conditions under which any confidential information will be protected by and\ndisclosed between the parties during the term of this Agreement, for the sole purpose of evaluating a global research and development, and\ncommercial partnership, for NUEDEXTA and/or its compound AVP-786 (the "Purpose").\n2. Confidential Information. As used herein, "Confidential Information" means, with respect to each party, any and all technical, business and\nfinancial information, including third party information, relating to the disclosing party or any of its affiliates that is furnished or disclosed, in\nwhatever form or medium, provided that (i) in the case of information provided in tangible form or by electronic media, it is marked with, or\naccompanied by, the legend "CONFIDENTIAL" (or other similar marking conveying the same intent); (ii) in the case of information disclosed\nby visual display or orally, it is identified as confidential when revealed and summarized in a writing so marked, referencing the date and type of\ninformation disclosed, delivered to the receiving party within thirty(30) days of such disclosure, before or after the Effective Date. "Confidential\nInformation" includes but is not limited to: (a) patents, patent applications; (b) trade secrets; (c) design rights, trademarks, copyrights, database\nrights and other intellectual property rights; and (d) other proprietary information, ideas, concepts, chemical compounds, assays, biological\nmaterials, gene sequences, cell lines, samples, data, techniques, sketches, drawings, works of authorship, models, inventions, source code, know-\nhow, processes, operations, programs, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of\neach of the parties, and including, without limitation, their respective information concerning research, experimental work, clinical testing,\nregulatory information, development, design details and specifications, engineering, financial information, procurement requirements,\npurchasing, manufacturing, customer lists, investors, patients, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party or any of its affiliates provides.\n3. Obligations. Each party agrees to disclose to the other only that Confidentia Information that is reasonably necessary to enable the receiving\nparty to complete the Purpose. Each party agrees: (a) to use the other party's Confidential Information solely for the Purpose stated above and\nfor\nno other reason; (b) to protect the confidentiality of the other party's Confidential Information; (c) not to disclose any of the other party's\nConfidential Information to anyone, except those employees, officers, directors, consultants or other authorized representatives, of the receiving\nparty or its affiliates who have a "need to know" the information for the Purpose and who have signed confidentiality agreements or are\notherwise\nbound\nby\nconfidentiality\nobligations\nat\nleast\nas\nrestrictive\nas\nthose\ncontained\nherein\n(collectively,\nthe\n"Authorized\nRepresentative");\n(d) to notify appropriately such Authorized Representative that the disclosure is made in confidence and to require them to keep the same in\nconfidence in accordance with the terms and conditions of this Agreement, and to enforce those terms and conditions; and (e) if directed, to limit\nas directed the number of copies made of the other party's Confidentia Information, Each party agrees to immediately notify the other upon\ndiscovery of any loss or unauthorized disclosure of the Confidential Information of the other party, and to remedy any such loss or unauthorized\ndisclosure as reasonably requested by the disclosing party. The receiving party shall provide a list of all recipients of the disclosing party's\nConfidential Information upon request within ten (10) days of such request.\nPage 1 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that: (a) the receiving\nparty can show is already known to the receiving party prior to the other party's or its affiliate's disclosure as evidenced by contemporaneous\nwritten evidence; (b) is or becomes publicly available through no fault of the receiving party; or (c) is obtained by the receiving party from a\nthird person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed.\nNotwithstanding the foregoing, (i) any Confidentia Information shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination\nof features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the\npossession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of\nthe receiving party. The receiving party may disclose the Confidential Information of the other party to the extent required pursuant to the lawful\norder of a government agency or disclosure is required by operation of the law, provided that the party to make such disclosure provides the other\nparty with prior written notice in order to permit the other party to seek confidential treatment of such information.\n5.\nHandling of Information and Materials. Confidential Information will not be reproduced in any form, manner or medium except as required\nto accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the other party by either party will remain the\nproperty of the disclosing party or its affiliate, as applicable, and will contain any and all confidential or proprietary notices or legends which\nappear on the original, unless otherwise authorized in writing by the other party. Upon termination or expiration of this Agreement, or upon\nwritten request of the other party, the receiving party will either promptly return to such other party or destroy, at such other party's option, all\ndocuments and other tangible materials representing such other party's Confidential Information (including summaries, notes, memoranda and\nabstracts) and all copies thereof; provided, however, that the receiving party may retain one copy of the other party's Confidential Information\nfor purposes of compliance with the terms of this Agreement. For the avoidance of doubt, the receiving party shall not be expected to purge\nany\ndisclosing party's Confidential Information stored in its electronic archive system and such Confidential Information shall be subject to the\nconfidentiality and non-use obligations imposed under this Agreement.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement is intended to amount to or implies any transfer,\nlicense or other grant of rights in relation to the Confidential Information owned or used by the other party. Neither party will make, have made,\nuse or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the other party.\n7. Term and Termination. This Agreement will terminate two (2) years after the Effective Date. The receiving party's obligations under this\nAgreement will survive termination of this Agreement for a period of five (5) years after such termination and will be binding upon the receiving\nparty's heirs, successors and assigns after such termination or expiration.\n8. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth below (unless either\nprovides written notice of a different address) and will be deemed given: (a) upon delivery if sent by facsimile or by overnight courier; or\n(b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n9. Use of Names. Except as may be required by law, each party further agrees not to use the name, trademark, service mark, logo, or other\nidentifying characteristic ("Name") of the other party or any of its affiliates or any of their respective trustees, directors, officers, staff members,\nemployees, students or\nPage\n2 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nagents in any advertising, promotional or sales literature, publicity or in any document employed to obtain funds or financing without the prior\nwritten approval of the party or individual whose Name is to be used. This Section 9 shall survive any termination or expiration of this\nAgreement.\n10. Rule 10-b5 Limitations. The receiving party acknowledges, on behalf of itself and any of its affiliates, personnel or agents, that the United\nStates securities laws prohibit any person who has material non-public information about a company or its securities from purchasing or selling\nsecurities\nof\nsuch\ncompany,\nor\nfrom\ncommunicating\nsuch\ninformation\nto\nany\nother\nperson\nunder\ncircumstances\nin\nwhich\nit\nis\nreasonably\nforeseeable that such person is likely to purchase or sell such securities. The receiving party covenants to refrain from purchasing or selling\nsecurities of the disclosing party and from communicating all non-public information about the disclosing party or its securities in violation of\nsuch securities laws.\n11. Securities Transactions. Each party agrees that, for a period of five (5) years from the date of this Agreement, neither party or its affiliates\nwill, without the prior written consent of the Board of Directors of the "applicable party": (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the applicable\nparty or any subsidiary thereof, or of any successor to or person in control of the applicable party, or any assets of the applicable party or any\nsubsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any\n"solicitation" of "proxies" (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any\nperson or entity with respect to the voting of, any voting securities of the applicable party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the applicable party or its securities\nor\nassets; (iv) form, join or in any way participate in a "group" (as defined in Section 13 (d)(3), Securities Exchange Act of 1934, as amended) in\nconnection with any of the foregoing; or (v) request the applicable party directly or indirectly, to amend or waive any provision of this paragraph.\n12. Employment Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither party shall, without the prior\nwritten\nconsent\nof the other party, directly solicit the employment of any person who is employed by the other party and was directly involved\nwith the activities connected with this Agreement. The provisions of this section shall not apply with respect to either party's employees who\nseek employment from the other party on their own initiative, such as, but not limited to, in response to a party's general vacancy announcement\nor advertisement.\n13. General.\na)\nEntire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter of this\nAgreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The\nheadings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the\nconstruction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified\nby either party, unless such waiver, amendment or modification is made in writing and signed by both parties.\nb)\nGoverning Law. This Agreement will be governed by and construed in accordance with the laws of the State of California U.S.A.,\nwithout reference to conflict of laws principles or any rule applying the law of another jurisdiction Any action, matter or lawsuit\narising from or related to this Agreement shall be brought exclusively in California, and each party hereby consents to this\njurisdiction unless otherwise agreed upon in writing by the parties. Each party acknowledges that money damages is not an adequate\nremedy for a breach or potential breach of the terms of this Agreement and hereby agrees that the other party will be entitled to seek\ninjunctive or other equitable relief under this Agreement, as well as such further relief, rights and remedies as may be granted at law\nor equity by a court of competent jurisdiction.\nPage\n3 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nc)\nUnenforceability / Invalidity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such\nunenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed\nand interpreted SO as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law\nor applicable court decisions.\nd) Assignment. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of\nthe other party.\ne)\nNo Export Rights. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\nf)\nSignatures. Authenticated electronic signatures (e.g. facsimile, scanned) will have the same legal effect as original signatures.\n[remainder of this page intentionally left blank]\nPage 4 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as\nof\nthe Effective Date. Each individual signing for a corporate entity hereby personally warrants his or her legal authority to bind that entity and its\naffiliates.\nAVANIR PHARMACEUTICALS, INC.\nOTSUKA PHARMACEUTICAL Co., LTD.\nBy:\n/s/ Gregory J. Flesher\nBy:\n/s/ Michael Levy\nName: Gregory J. Flesher\nName: Michael Levy\nTitle: CBO\nTitle: EVP, OPBC\nAddress:\nAddress:\n20 Enterprise, Suite 200\n2-9, KANDA TSUKASA-MACHI,\nAliso Viejo, California 92656\nCHIYODA-KU, TOKYO 101-8535, JAPAN\nATTN: Gregory J. Flesher, CBO & SVP\nPage I 5 of 5	EX-99.D.2 11 d837450dex99d2.htm EX-99.D.2\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of MAY 13, 2013 (the “Effective Date”),\ngoverns the disclosure of information by and between AVANIR PHARMACEUTICALS, INC., a Delaware corporation, with offices located at 20\nEnterprise, Suite 200, Aliso Viejo, California, 92656, and OTSUKA PHARMACEUTICAL CO. LTD. a JAPANESE CORPORATION, with offices\nlocated at 2-9, KANDA TSUKASA-MACHI, CHIYODA-KU, TOKYO 101-8535, JAPAN (each a “party” and sometimes collectively referred to as\nthe “parties” to this Agreement).\n1. Purpose. This Agreement is made to define the terms and conditions under which any confidential information will be protected by and\ndisclosed between the parties during the term of this Agreement, for the sole purpose of evaluating a global research and development, and\ncommercial partnership, for NUEDEXTA and/or its compound AVP-786 (the “Purpose”).\n2. Confidential Information. As used herein, “Confidential Information” means, with respect to each party, any and all technical, business and\nfinancial information, including third party information, relating to the disclosing party or any of its affiliates that is furnished or disclosed, in\nwhatever form or medium, provided that (i) in the case of information provided in tangible form or by electronic media, it is marked with, or\naccompanied by, the legend “CONFIDENTIAL” (or other similar marking conveying the same intent); (ii) in the case of information disclosed\nby visual display or orally, it is identified as confidential when revealed and summarized in a writing so marked, referencing the date and type of\ninformation disclosed, delivered to the receiving party within thirty(30) days of such disclosure, before or after the Effective Date. “Confidential\nInformation” includes but is not limited to: (a) patents, patent applications; (b) trade secrets; (c) design rights, trademarks, copyrights, database\nrights and other intellectual property rights; and (d) other proprietary information, ideas, concepts, chemical compounds, assays, biological\nmaterials, gene sequences, cell lines, samples, data, techniques, sketches, drawings, works of authorship, models, inventions, source code, know-\nhow, processes, operations, programs, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of\neach of the parties, and including, without limitation, their respective information concerning research, experimental work, clinical testing,\nregulatory information, development, design details and specifications, engineering, financial information, procurement requirements,\npurchasing, manufacturing, customer lists, investors, patients, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party or any of its affiliates provides.\n3. Obligations. Each party agrees to disclose to the other only that Confidential Information that is reasonably necessary to enable the receiving\nparty to complete the Purpose. Each party agrees: (a) to use the other party’s Confidential Information solely for the Purpose stated above and for\nno other reason; (b) to protect the confidentiality of the other party’s Confidential Information; (c) not to disclose any of the other party’s\nConfidential Information to anyone, except those employees, officers, directors, consultants or other authorized representatives, of the receiving\nparty or its affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are\notherwise bound by confidentiality obligations at least as restrictive as those contained herein (collectively, the “Authorized Representative”);\n(d) to notify appropriately such Authorized Representative that the disclosure is made in confidence and to require them to keep the same in\nconfidence in accordance with the terms and conditions of this Agreement, and to enforce those terms and conditions; and (e) if directed, to limit\nas directed the number of copies made of the other party’s Confidential Information, Each party agrees to immediately notify the other upon\ndiscovery of any loss or unauthorized disclosure of the Confidential Information of the other party, and to remedy any such loss or unauthorized\ndisclosure as reasonably requested by the disclosing party. The receiving party shall provide a list of all recipients of the disclosing party’s\nConfidential Information upon request within ten (10) days of such request.\nPage|1of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that: (a) the receiving\nparty can show is already known to the receiving party prior to the other party’s or its affiliate’s disclosure as evidenced by contemporaneous\nwritten evidence; (b) is or becomes publicly available through no fault of the receiving party; or (c) is obtained by the receiving party from a\nthird person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed.\nNotwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination\nof features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the\npossession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of\nthe receiving party. The receiving party may disclose the Confidential Information of the other party to the extent required pursuant to the lawful\norder of a government agency or disclosure is required by operation of the law, provided that the party to make such disclosure provides the other\nparty with prior written notice in order to permit the other party to seek confidential treatment of such information.\n5. Handling of Information and Materials. Confidential Information will not be reproduced in any form, manner or medium except as required\nto accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the other party by either party will remain the\nproperty of the disclosing party or its affiliate, as applicable, and will contain any and all confidential or proprietary notices or legends which\nappear on the original, unless otherwise authorized in writing by the other party. Upon termination or expiration of this Agreement, or upon\nwritten request of the other party, the receiving party will either promptly return to such other party or destroy, at such other party’s option, all\ndocuments and other tangible materials representing such other party’s Confidential Information (including summaries, notes, memoranda and\nabstracts) and all copies thereof; provided, however, that the receiving party may retain one copy of the other party’s Confidential Information\nfor purposes of compliance with the terms of this Agreement. For the avoidance of doubt, the receiving party shall not be expected to purge any\ndisclosing party’s Confidential Information stored in its electronic archive system and such Confidential Information shall be subject to the\nconfidentiality and non-use obligations imposed under this Agreement.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement is intended to amount to or implies any transfer,\nlicense or other grant of rights in relation to the Confidential Information owned or used by the other party. Neither party will make, have made,\nuse or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the other party.\n7. Term and Termination. This Agreement will terminate two (2) years after the Effective Date. The receiving party’s obligations under this\nAgreement will survive termination of this Agreement for a period of five (5) years after such termination and will be binding upon the receiving\nparty’s heirs, successors and assigns after such termination or expiration.\n8. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth below (unless either\nprovides written notice of a different address) and will be deemed given: (a) upon delivery if sent by facsimile or by overnight courier; or\n(b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n9. Use of Names. Except as may be required by law, each party further agrees not to use the name, trademark, service mark, logo, or other\nidentifying characteristic (“Name”) of the other party or any of its affiliates or any of their respective trustees, directors, officers, staff members,\nemployees, students or\nPage|2of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nagents in any advertising, promotional or sales literature, publicity or in any document employed to obtain funds or financing without the prior\nwritten approval of the party or individual whose Name is to be used. This Section 9 shall survive any termination or expiration of this\nAgreement.\n10. Rule 10-b5 Limitations. The receiving party acknowledges, on behalf of itself and any of its affiliates, personnel or agents, that the United\nStates securities laws prohibit any person who has material non-public information about a company or its securities from purchasing or selling\nsecurities of such company, or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. The receiving party covenants to refrain from purchasing or selling\nsecurities of the disclosing party and from communicating all non-public information about the disclosing party or its securities in violation of\nsuch securities laws.\n11. Securities Transactions. Each party agrees that, for a period of five (5) years from the date of this Agreement, neither party or its affiliates\nwill, without the prior written consent of the Board of Directors of the “applicable party”: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the applicable\nparty or any subsidiary thereof, or of any successor to or person in control of the applicable party, or any assets of the applicable party or any\nsubsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any\nperson or entity with respect to the voting of, any voting securities of the applicable party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the applicable party or its securities or\nassets; (iv) form, join or in any way participate in a “group” (as defined in Section 13 (d)(3), Securities Exchange Act of 1934, as amended) in\nconnection with any of the foregoing; or (v) request the applicable party directly or indirectly, to amend or waive any provision of this paragraph.\n12. Employment Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither party shall, without the prior\nwritten consent of the other party, directly solicit the employment of any person who is employed by the other party and was directly involved\nwith the activities connected with this Agreement. The provisions of this section shall not apply with respect to either party’s employees who\nseek employment from the other party on their own initiative, such as, but not limited to, in response to a party’s general vacancy announcement\nor advertisement.\n13. General.\na) Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter of this\nAgreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The\nheadings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the\nconstruction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified\nby either party, unless such waiver, amendment or modification is made in writing and signed by both parties.\nb) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California U.S.A.,\nwithout reference to conflict of laws principles or any rule applying the law of another jurisdiction. Any action, matter or lawsuit\narising from or related to this Agreement shall be brought exclusively in California, and each party hereby consents to this\njurisdiction unless otherwise agreed upon in writing by the parties. Each party acknowledges that money damages is not an adequate\nremedy for a breach or potential breach of the terms of this Agreement and hereby agrees that the other party will be entitled to seek\ninjunctive or other equitable relief under this Agreement, as well as such further relief, rights and remedies as may be granted at law\nor equity by a court of competent jurisdiction.\nPage|3of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nc) Unenforceability / Invalidity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such\nunenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed\nand interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law\nor applicable court decisions.\nd) Assignment. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of\nthe other party.\ne) No Export Rights. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\nf) Signatures. Authenticated electronic signatures (e.g . facsimile, scanned) will have the same legal effect as original signatures.\n[remainder of this page intentionally left blank]\nPage|4of5\nMUTUAL NON-DISCLOSURE AGREEMENT\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of\nthe Effective Date. Each individual signing for a corporate entity hereby personally warrants his or her legal authority to bind that entity and its\naffiliates.\nAVANIR PHARMACEUTICALS, INC.\nOTSUKA PHARMACEUTICAL CO., LTD.\nBy: /s/ Gregory J. Flesher\nBy: /s/ Michael Levy\nName: Gregory J. Flesher\nName: Michael Levy\nTitle: CBO\nTitle: EVP, OPBC\nAddress:\n20 Enterprise, Suite 200\nAliso Viejo, California 92656\nATTN: Gregory J. Flesher, CBO & SVP\nAddress:\n2-9, KANDA TSUKASA-MACHI,\nCHIYODA-KU, TOKYO 101-8535, JAPAN\nPage|5of5
62cc624d5929ea932a2c1945463e1322.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 11 d268167dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is effective as of October 20, 2011 (“Effective Date”) and is entered into between\nSuccessFactors, Inc., a Delaware corporation, having a place of business at 1500 Fashion Island Boulevard, San Mateo, California,\n94404, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf,\nGermany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP\nand Company, intending to be legally bound hereby, agree to the following:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company\nmay deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such\nConfidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”).\n2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives\n(defined below) to the Receiving Party or its Representatives, whether orally, in writing, electronically or in other tangible form, and\nidentified as confidential or proprietary at the time of disclosure by the Disclosing Party or otherwise disclosed in a manner such that a\nreasonable person would understand its confidential nature, including but not limited to, information that is related to: (a) the business\nplans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business\nof any customer or partner of the Disclosing Party; (d) Disclosing Party’s properties, employees, finances, operations; (e) any\ninformation about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable\nconfidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including the\nfollowing information regarding Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques\nand programming concepts, methods of processing, system designs embodied in Disclosing Party’s Software; and (ii) discoveries,\ninventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications,\ntechniques and processes relating to Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product\navailability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how,\nimprovements, inventions (whether patentable or not), marketing plans, forecasts and strategies. Where the Confidential Information\nhas not been reduced to written or other tangible form at the time of disclosure, and such disclosure is made orally or visually, the\nDisclosing Party agrees to identify it as confidential or proprietary at the time of disclosure. “Confidential Information” shall be deemed\nto include all notes, analyses, compilations, studies, interpretations or other documents prepared by the Receiving Party or its\nRepresentatives which contain or are based upon, in whole or in part, the information furnished to the receiving party or its\nRepresentatives pursuant hereto.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain\nany and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all\nreasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any\nConfidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or\nwho otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for\nany purpose other than in connection with the Evaluation. and (d) shall not disclose to any person (other than those of its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the\nEvaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information\nhas been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable\nstandard of care. As used herein. “Representatives” shall mean (i) employees of Receiving Party; (ii) attorneys, accountants, or other\nprofessional business advisors and, additionally, (iii) employees of the Receiving Party and those entities directly or indirectly owned by\nthe Receiving Party, in each case, who shall be informed of the confidential nature of the Confidential Information and shall agree to act\nin accordance with the terms of this Agreement. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by it or its Representatives.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that:\n(a) is independently developed by Receiving Party without reference to the Confidential Information, or is lawfully received free of\nrestriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public\nwithout breach of this Agreement by Receiving Party; (c) at the time of disclosure to Receiving Party was known to such party free of\nrestriction; or (d) Disclosing Party agrees in writing is free of such restrictions.\nMUTUAL NON-DISCLOSURE AGREEMENT\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not\nintended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual\nproperty right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any\nbusiness or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of\nthe other party for purposes substantially similar to those involved herein.\n6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby\nbreach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any\npurpose the residuals (defined below) resulting from access to or work with Confidential Information disclosed hereunder. The term\n“residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access to\nthe Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from\nmemory. Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work\nresulting from the use of residuals. The party using any information that it claims to be residuals will have the burden of proving that the\ninformation constitutes residuals.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or\nregulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the\nEvaluation, unless prohibited by law, the Receiving Party shall provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the\nReceiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or\n(iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is\nnot obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the\nReceiving Party or its Representative shall disclose only that portion of the Confidential Information which is legally required to be\ndisclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may Include material subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nConfidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or\nother applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine\nor any other applicable privilege.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential\nInformation of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or an intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the\npossession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek\ndisclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with\nrespect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to\nidentify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems\narchiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the\nDisclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each Party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the completeness of the\nConfidential Information.\nMUTUAL NON-DISCLOSURE AGREEMENT\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither\nparty shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal,\nterm sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the\nconfidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or\nmay not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation,\nnegotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to\nchange (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of\nthe potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and\nrequesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions\nat any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive\nagreements is at the sore risk of the party making the decision, even if the other party is aware of or has indicated approval of, such\ndecision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. In consideration of the Information being furnished to SAP and the Company, each of SAP and the Company hereby agree that,\nuntil twelve (12) months after the date of termination of this Agreement, such party will not solicit for employment with such party or any\nof its subsidiaries, or employ, any of the current officers or employees of the other party with whom such party has had contact during\nthe term of this Agreement and who became known by such party or who was identified to such party as part of the Evaluation under\nthis Agreement. Notwithstanding the foregoing, nothing herein shall restrict or preclude either party from (A) making generalized\nsearches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (B) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other party or (C) hiring an employee of the other\nparty who first initiates an employment discussion with such party, so long as such party has not violated the restrictions on solicitation\ncontained in this Agreement.\n14. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties\nagree that until one (1) year after the date of termination of this Agreement, neither party nor any of each party’s affiliates or its\nRepresentatives acting on the party’s behalf will, unless specifically invited in writing by the other party’s Board of Directors or its duly\nauthorized representative: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities, or indebtedness of the other party or any subsidiary thereof, or any\nsuccessor entity; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the\nSecurities Exchange Act of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of,\nany voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any\nmerger, consolidation, stock purchase tender or exchange offer, restructuring or business combination, involving the other party or to\npurchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way\nparticipate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the foregoing; (v) request the other party\nor any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public\ndisclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public\nannouncement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the\ncontrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of\nthe other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that each\nsuch submission is made on a confidential basis and states that the provider does not intend to make a public announcement related to\nsuch submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that the\nreceipt thereof by the other party does not require public disclosure of such submission and (2) no party shall be bound by the\nforegoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 34 Act) other than such party or its\naffiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise,\nbeneficial ownership of more than 50% of the outstanding voting securities of the other party or assets of the other party or its\nsubsidiaries representing more than 50% of the consolidated earning power of the other party and its subsidiaries and the other party’s\nBoard of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an\nagreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving\nthe other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior\nto such transaction, had beneficial ownership of 50% or more of the voting power of the other party would not continue to\nMUTUAL NON-DISCLOSURE AGREEMENT\nbeneficially own by virtue of their exchange or retention of securities of such other party representing at least 50% of the voting power\nof the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s\nBoard of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be\napproved.\n15. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to\nequitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the\nprovisions of this Agreement.\n16. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors,\nemployees, agents or controlling persons of such Representatives makes any express or implied representation or warranty regarding\nthe Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the\nConfidential Information.\n17. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of\nAmerica, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New\nYork law. The parties agree the courts of the State of California shall be the exclusive venue for disputes arising under this Agreement.\nIn the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be\nunenforceable, the remaining portions hereof shall remain in full force and effect.\n18. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder\nin connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the\nevent the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of\nwork product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and\nobligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither Party will\nassign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party. No amendment or\nmodification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the\nparties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed\na subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay\nby either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n19. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such\nparty’s sole discretion upon thirty (30) days written notice to the other party. The provisions herein concerning the disclosure, protection\nand use of Confidential Information, including Sections 3, 4, 7 and 9, shall survive the termination or expiration of this Agreement. The\nnon-solicit and standstill obligations shall remain in effect as provided in Sections 13 or 14, as applicable.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together\nshall constitute one and the same agreement.\nLOGO	EX-99.(D)(2) 11 d268167dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is effective as of October 20, 2011 (“Effective Date”) and is entered into between\nSuccessFactors, Inc., a Delaware corporation, having a place of business at 1500 Fashion Island Boulevard, San Mateo, California,\n94404, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf,\nGermany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP\nand Company, intending to be legally bound hereby, agree to the following:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company\nmay deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such\nConfidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”).\n2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives\n(defined below) to the Receiving Party or its Representatives, whether orally, in writing, electronically or in other tangible form, and\nidentified as confidential or proprietary at the time of disclosure by the Disclosing Party or otherwise disclosed in a manner such that a\nreasonable person would understand its confidential nature, including but not limited to, information that is related to: (a) the business\nplans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business\nof any customer or partner of the Disclosing Party; (d) Disclosing Party’s properties, employees, finances, operations; (e) any\ninformation about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable\nconfidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including the\nfollowing information regarding Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques\nand programming concepts, methods of processing, system designs embodied in Disclosing Party’s Software; and (ii) discoveries,\ninventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications,\ntechniques and processes relating to Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product\navailability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how,\nimprovements, inventions (whether patentable or not), marketing plans, forecasts and strategies. Where the Confidential Information\nhas not been reduced to written or other tangible form at the time of disclosure, and such disclosure is made orally or visually, the\nDisclosing Party agrees to identify it as confidential or proprietary at the time of disclosure. “Confidential Information” shall be deemed\nto include all notes, analyses, compilations, studies, interpretations or other documents prepared by the Receiving Party or its\nRepresentatives which contain or are based upon, in whole or in part, the information furnished to the receiving party or its\nRepresentatives pursuant hereto.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain\nany and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all\nreasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any\nConfidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or\nwho otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for\nany purpose other than in connection with the Evaluation. and (d) shall not disclose to any person (other than those of its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the\nEvaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information\nhas been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable\nstandard of care. As used herein. “Representatives” shall mean (i) employees of Receiving Party; (ii) attorneys, accountants, or other\nprofessional business advisors and, additionally, (iii) employees of the Receiving Party and those entities directly or indirectly owned by\nthe Receiving Party, in each case, who shall be informed of the confidential nature of the Confidential Information and shall agree to act\nin accordance with the terms of this Agreement. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by it or its Representatives.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that:\n() is independently developed by Receiving Party without reference to the Confidential Information, or is lawfully received free of\nrestriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public\nwithout breach of this Agreement by Receiving Party; (c) at the time of disclosure to Receiving Party was known to such party free of\nrestriction; or (d) Disclosing Party agrees in writing is free of such restrictions.\nMUTUAL NON-DISCLOSURE AGREEMENT\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not\nintended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual\nproperty right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any\nbusiness or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of\nthe other party for purposes substantially similar to those involved herein.\n6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby\nbreach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any\npurpose the residuals (defined below) resulting from access to or work with Confidential Information disclosed hereunder. The term\n“residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access to\nthe Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from\nmemory. Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work\nresulting from the use of residuals. The party using any information that it claims to be residuals will have the burden of proving that the\ninformation constitutes residuals.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or\nregulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the\nEvaluation, unless prohibited by law, the Receiving Party shall provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the\nReceiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or\n(iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is\nnot obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the\nReceiving Party or its Representative shall disclose only that portion of the Confidential Information which is legally required to be\ndisclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may Include material subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nConfidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or\nother applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine\nor any other applicable privilege.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential\nInformation of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or an intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the\npossession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek\ndisclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with\nrespect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to\nidentify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems\narchiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the\nDisclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each Party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the completeness of the\nConfidential Information.\nMUTUAL NON-DISCLOSURE AGREEMENT\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither\nparty shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal,\nterm sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the\nconfidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or\nmay not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation,\nnegotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to\nchange (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of\nthe potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and\nrequesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions\nat any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive\nagreements is at the sore risk of the party making the decision, even if the other party is aware of or has indicated approval of, such\ndecision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. In consideration of the Information being furnished to SAP and the Company, each of SAP and the Company hereby agree that,\nuntil twelve (12) months after the date of termination of this Agreement, such party will not solicit for employment with such party or any\nof its subsidiaries, or employ, any of the current officers or employees of the other party with whom such party has had contact during\nthe term of this Agreement and who became known by such party or who was identified to such party as part of the Evaluation under\nthis Agreement. Notwithstanding the foregoing, nothing herein shall restrict or preclude either party from (A) making generalized\nsearches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (B) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other party or (C) hiring an employee of the other\nparty who first initiates an employment discussion with such party, so long as such party has not violated the restrictions on solicitation\ncontained in this Agreement.\n14. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties\nagree that until one (1) year after the date of termination of this Agreement, neither party nor any of each party’s affiliates or its\nRepresentatives acting on the party’s behalf will, unless specifically invited in writing by the other party’s Board of Directors or its duly\nauthorized representative: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities, or indebtedness of the other party or any subsidiary thereof, or any\nsuccessor entity; (i) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the\nSecurities Exchange Act of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of,\nany voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any\nmerger, consolidation, stock purchase tender or exchange offer, restructuring or business combination, involving the other party or to\npurchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way\nparticipate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the foregoing; (v) request the other party\nor any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public\ndisclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public\nannouncement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the\ncontrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of\nthe other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that each\nsuch submission is made on a confidential basis and states that the provider does not intend to make a public announcement related to\nsuch submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that the\nreceipt thereof by the other party does not require public disclosure of such submission and (2) no party shall be bound by the\nforegoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 34 Act) other than such party or its\naffiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise,\nbeneficial ownership of more than 50% of the outstanding voting securities of the other party or assets of the other party or its\nsubsidiaries representing more than 50% of the consolidated earning power of the other party and its subsidiaries and the other party’s\nBoard of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an\nagreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving\nthe other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior\nto such transaction, had beneficial ownership of 50% or more of the voting power of the other party would not continue to\nMUTUAL NON-DISCLOSURE AGREEMENT\nbeneficially own by virtue of their exchange or retention of securities of such other party representing at least 50% of the voting power\nof the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s\nBoard of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be\napproved.\n15. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to\nequitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the\nprovisions of this Agreement.\n16. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors,\nemployees, agents or controlling persons of such Representatives makes any express or implied representation or warranty regarding\nthe Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the\nConfidential Information.\n17. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of\nAmerica, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New\nYork law. The parties agree the courts of the State of California shall be the exclusive venue for disputes arising under this Agreement.\nIn the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be\nunenforceable, the remaining portions hereof shall remain in full force and effect.\n18. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder\nin connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the\nevent the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of\nwork product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and\nobligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither Party will\nassign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party. No amendment or\nmodification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the\nparties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed\na subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay\nby either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n19. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such\nparty’s sole discretion upon thirty (30) days written notice to the other party. The provisions herein concerning the disclosure, protection\nand use of Confidential Information, including Sections 3, 4, 7 and 9, shall survive the termination or expiration of this Agreement. The\nnon-solicit and standstill obligations shall remain in effect as provided in Sections 13 or 14, as applicable.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together\nshall constitute one and the same agreement.\n».LOGO	EX-99.(D)(2) 11 1268167dex99d2.htn MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") is effective as of October 20, 2011 ("Effective Date") and is entered into between\nSuccessFactors Inc., a Delaware corporation, having a place of business at 1500 Fashion Island Boulevard, San Mateo, California,\n94404, USA ("Company"), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf,\nGermany on behalf of itself and its wholly owned subsidiaries, ("SAP"). In consideration of the mutual covenants contained herein, SAP\nand Company, intending to be legally bound hereby, agree to the following:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the "Evaluation"), SAP and Company\nmay deliver to each other, upon the execution of this Agreement, Confidentia Information as defined below (the party disclosing\nsuch\nConfidential Information being the "Disclosing Party" and the party receiving such Confidential Information being the "Receiving Party").\n2. As used herein, "Confidential Information" shall mean all information furnished by the Disclosing Party or its Representatives\n(defined below) to the Receiving Party or its Representatives, whether orally, in writing, electronically or in other tangible form, and\nidentified as confidential or proprietary at the time of disclosure by the Disclosing Party or otherwise disclosed in a manner such that a\nreasonable person would understand its confidential nature, including but not limited to, information that is related to: (a) the business\nplans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business\nof any customer or partner of the Disclosing Party; (d) Disclosing Party's properties, employees, finances, operations; (e) any\ninformation about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable\nconfidentiality obligation to such third party); (f) software and related documentation ("Disclosing Party's Software") including the\nfollowing information regarding Disclosing Party's Software (i) computer software (object and source codes), programming techniques\nand programming concepts, methods of processing, system designs embodied in Disclosing Party's Software; and (ii) discoveries,\ninventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications,\ntechniques and processes relating to Disclosing Party's Software; and (g) product offerings, content partners, product pricing, product\navailability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how,\nimprovements,\ninventions\n(whether\npatentable\nor\nnot),\nmarketing\nplans,\nforecasts\nand\nstrategies.\nWhere\nthe\nConfidential\nInformation\nhas not been reduced to written or other tangible form at the time of disclosure, and such disclosure is made orally or visually, the\nDisclosing Party agrees to identify it as confidential or proprietary at the time of disclosure. "Confidential Information" shall be deemed\nto\ninclude\nall\nnotes,\nanalyses,\ncompilations,\nstudies,\ninterpretations\nor\nother\ndocuments\nprepared\nby\nthe\nReceiving\nParty\nor\nits\nRepresentatives which contain or are based upon, in whole or in part, the information furnished to the receiving party or its\nRepresentatives pursuant hereto.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain\nany\nand\nall\nconfidential\nor\nproprietary\nnotices\nor\nlegends\nwhich\nappear\non\nthe\noriginal.\nThe\nReceiving\nParty:\n(a)\nshall\ntake\nall\nreasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any\nConfidential\nInformation\nto\nany\nperson\nother\nthan\nits\nRepresentatives\nwho\nare\nactively\nand\ndirectly\nparticipating\nin\nthe\nEvaluation\nor\nwho otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidentia Information\nfor\nany purpose other than in connection with the Evaluation. and (d) shall not disclose to any person (other than those of its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the\nEvaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information\nhas been made available to the Receiving Party or its Representatives. As used herein "reasonable steps" means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable\nstandard of care. As used herein. "Representatives" shal mean (i) employees of Receiving Party; (ii) attorneys, accountants, or other\nprofessional business advisors and, additionally, (iii) employees of the Receiving Party and those entities directly or indirectly owned by\nthe Receiving Party, in each case, who shall be informed of the confidential nature of the Confidential Information and shall agree to act\nin accordance with the terms of this Agreement. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by it or its Representatives.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that:\n(a) is independently developed by Receiving Party without reference to the Confidential Information, or is lawfully received free of\nrestriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public\nwithout breach of this Agreement by Receiving Party; (c) at the time of disclosure to Receiving Party was known to such party free of\nrestriction; or (d) Disclosing Party agrees in writing is free of such restrictions.\nMUTUAL NON-DISCLOSURE AGREEMENT\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not\nintended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual\nproperty right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any\nbusiness or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of\nthe other party for purposes substantially similar to those involved herein.\n6. Nothing in this Agreement shall prohibit or restrict either party's right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby\nbreach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any\npurpose the residuals (defined below) resulting from access to or work with Confidential Information disclosed hereunder. The term\n"residuals" means information in non-tangible form which may be retained in the unaided memory by persons who have had access to\nthe Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from\nmemory. Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work\nresulting from the use of residuals. The party using any information that it claims to be residuals wil have the burden of proving that the\ninformation constitutes residuals.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or\nregulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the\nEvaluation, unless prohibited by law, the Receiving Party shall provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the\nReceiving Party with respect to the Disclosing Party's taking steps to resist or narrow the scope of such request or legal process; or\n(iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is\nnot obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the\nReceiving Party or its Representative shall disclose only that portion of the Confidentia Information which is legally required to be\ndisclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may Include material subject to the attorney-client privilege, work product doctrine\nor\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nConfidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine\nor\nother applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine\nor any other applicable privilege.\n9. Upon the Disclosing Party's written request, the Receiving Party shall (at the Receiving Party's election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential\nInformation of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether\nin\nhard-copy form or an intangible media, such as electronic mail or computer files) in the Receiving Party's possession or in the\npossession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek\ndisclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with\nrespect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required\nto\nidentify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems\narchiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the\nDisclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each Party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the completeness of the\nConfidential Information.\nMUTUAL NON-DISCLOSURE AGREEMENT\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither\nparty shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal,\nterm sheet, letter of intent, or draft agreement relating to any such potentia relationship or transaction (other than with respect to the\nconfidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or\nmay not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation,\nnegotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to\nchange\n(in\nits\nsole\ndiscretion,\nat\nany\ntime\nand\nwithout\nnotice\nto\nthe\nother\nparty)\nthe\nprocedures\nrelating\nto\nthe\nparties'\nconsideration\nof\nthe potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and\nrequesting that the other party return or destroy the Confidentia Information as described above). Either party can end the discussions\nat any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive\nagreements is at the sore risk of the party making the decision, even if the other party is aware of or has indicated approva of, such\ndecision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. In consideration of the Information being furnished to SAP and the Company, each of SAP and the Company hereby agree that,\nuntil twelve (12) months after the date of termination of this Agreement, such party will not solicit for employment with such party\nor\nany\nof its subsidiaries, or employ, any of the current officers or employees of the other party with whom such party has had contact during\nthe term of this Agreement and who became known by such party or who was identified to such party as part of the Evaluation under\nthis Agreement. Notwithstanding the foregoing, nothing herein shall restrict or preclude either party from (A) making generalized\nsearches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (B) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other party or (C) hiring an employee of the other\nparty who first initiates an employment discussion with such party, so long as such party has not violated the restrictions on solicitation\ncontained in this Agreement.\n14. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties\nagree that until one (1) year after the date of termination of this Agreement, neither party nor any of each party's affiliates or its\nRepresentatives acting on the party's behalf will, unless specifically invited in writing by the other party's Board of Directors or its duly\nauthorized representative: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities, or indebtedness of the other party or any subsidiary thereof, or any\nsuccessor entity; (ii) make, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in Rule 14a-1 under the\nSecurities Exchange Act of 1934 (the 34 Act")) to vote, or seek to advise or influence any person or entity with respect to the voting of,\nany voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any\nmerger, consolidation, stock purchase tender or exchange offer, restructuring or business combination, involving the other party or to\npurchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way\nparticipate in a "group" (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the foregoing; (v) request the other party\nor\nany\nof\nthe\nother\nparty's\nRepresentatives\nto\namend\nor\nwaive\nany\nprovisions\nof\nthis\nparagraph\nin\na\nmanner\nthat\nwould\nrequire\npublic\ndisclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public\nannouncement\nregarding\nthe\npossibility\nof\nany\nof\nthe\nevents\ndescribed\nin\nsub-clauses\n(i)\nthrough\n(v).\nNotwithstanding\nanything\nto\nthe\ncontrary in this paragraph, (1) each party shal be permitted at any time and from time to time to submit to the Chief Executive Officer of\nthe other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that each\nsuch\nsubmission is made on a confidential basis and states that the provider does not intend to make a public announcement related\nto\nsuch submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that the\nreceipt thereof by the other party does not require public disclosure of such submission and (2) no party shall be bound by the\nforegoing restrictions in the event that any person or "group" (as defined in Section 13(d)(3) of the 34 Act) other than such party or\nits\naffiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise,\nbeneficial ownership of more than 50% of the outstanding voting securities of the other party or assets of the other party or its\nsubsidiaries representing more than 50% of the consolidated earning power of the other party and its subsidiaries and the other party's\nBoard of Directors has recommended to such other party's shareholders that such acquisition be approved or (y) enter into an\nagreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving\nthe other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior\nto such transaction, had beneficial ownership of 50% or more of the voting power of the other party would not continue to\nMUTUAL NON-DISCLOSURE AGREEMENT\nbeneficially own by virtue of their exchange or retention of securities of such other party representing at least 50% of the voting power\nof the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party's\nBoard of Directors has recommended to such other party's shareholders that such merger, consolidation or similar transaction be\napproved.\n15. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to\nequitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the\nprovisions of this Agreement.\n16. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors,\nemployees, agents or controlling persons of such Representatives makes any express or implied representation or warranty regarding\nthe Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the\nConfidential Information.\n17. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of\nAmerica, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New\nYork law. The parties agree the courts of the State of California shall be the exclusive venue for disputes arising under this Agreement.\nIn the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be\nunenforceable, the remaining portions hereof shall remain in ful force and effect.\n18. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder\nin connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the\nevent the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of\nwork product of either party or software license provisions and rights, then this Agreement shall not supersede either party's rights\nand\nobligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither Party will\nassign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party. No amendment or\nmodification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the\nparties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed\na subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay\nby either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n19. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such\nparty's sole discretion upon thirty (30) days written notice to the other party. The provisions herein concerning the disclosure, protection\nand use of Confidential Information, including Sections 3, 4, 7 and 9, shall survive the termination or expiration of this Agreement. The\nnon-solicit and standstill obligations shall remain in effect as provided in Sections 13 or 14, as applicable.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together\nshall constitute one and the same agreement.\nLOGO	EX-99.(D)(2) 11 d268167dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is effective as of October 20, 2011 (“Effective Date”) and is entered into between\nSuccessFactors, Inc., a Delaware corporation, having a place of business at 1500 Fashion Island Boulevard, San Mateo, California,\n94404, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf,\nGermany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP\nand Company, intending to be legally bound hereby, agree to the following:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company\nmay deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such\nConfidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”).\n2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives\n(defined below) to the Receiving Party or its Representatives, whether orally, in writing, electronically or in other tangible form, and\nidentified as confidential or proprietary at the time of disclosure by the Disclosing Party or otherwise disclosed in a manner such that a\nreasonable person would understand its confidential nature, including but not limited to, information that is related to: (a) the business\nplans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business\nof any customer or partner of the Disclosing Party; (d) Disclosing Party’s properties, employees, finances, operations; (e) any\ninformation about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable\nconfidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including the\nfollowing information regarding Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques\nand programming concepts, methods of processing, system designs embodied in Disclosing Party’s Software; and (ii) discoveries,\ninventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications,\ntechniques and processes relating to Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product\navailability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how,\nimprovements, inventions (whether patentable or not), marketing plans, forecasts and strategies. Where the Confidential Information\nhas not been reduced to written or other tangible form at the time of disclosure, and such disclosure is made orally or visually, the\nDisclosing Party agrees to identify it as confidential or proprietary at the time of disclosure. “Confidential Information” shall be deemed\nto include all notes, analyses, compilations, studies, interpretations or other documents prepared by the Receiving Party or its\nRepresentatives which contain or are based upon, in whole or in part, the information furnished to the receiving party or its\nRepresentatives pursuant hereto.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain\nany and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all\nreasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any\nConfidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or\nwho otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for\nany purpose other than in connection with the Evaluation. and (d) shall not disclose to any person (other than those of its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the\nEvaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information\nhas been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable\nstandard of care. As used herein. “Representatives” shall mean (i) employees of Receiving Party; (ii) attorneys, accountants, or other\nprofessional business advisors and, additionally, (iii) employees of the Receiving Party and those entities directly or indirectly owned by\nthe Receiving Party, in each case, who shall be informed of the confidential nature of the Confidential Information and shall agree to act\nin accordance with the terms of this Agreement. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by it or its Representatives.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that:\n(a) is independently developed by Receiving Party without reference to the Confidential Information, or is lawfully received free of\nrestriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public\nwithout breach of this Agreement by Receiving Party; (c) at the time of disclosure to Receiving Party was known to such party free of\nrestriction; or (d) Disclosing Party agrees in writing is free of such restrictions.\nMUTUAL NON-DISCLOSURE AGREEMENT\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not\nintended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual\nproperty right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any\nbusiness or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of\nthe other party for purposes substantially similar to those involved herein.\n6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby\nbreach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any\npurpose the residuals (defined below) resulting from access to or work with Confidential Information disclosed hereunder. The term\n“residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access to\nthe Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from\nmemory. Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work\nresulting from the use of residuals. The party using any information that it claims to be residuals will have the burden of proving that the\ninformation constitutes residuals.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or\nregulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the\nEvaluation, unless prohibited by law, the Receiving Party shall provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the\nReceiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or\n(iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is\nnot obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the\nReceiving Party or its Representative shall disclose only that portion of the Confidential Information which is legally required to be\ndisclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may Include material subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nConfidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or\nother applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine\nor any other applicable privilege.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential\nInformation of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or an intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the\npossession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek\ndisclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with\nrespect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to\nidentify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems\narchiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the\nDisclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each Party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the completeness of the\nConfidential Information.\nMUTUAL NON-DISCLOSURE AGREEMENT\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither\nparty shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal,\nterm sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the\nconfidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or\nmay not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation,\nnegotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to\nchange (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of\nthe potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and\nrequesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions\nat any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive\nagreements is at the sore risk of the party making the decision, even if the other party is aware of or has indicated approval of, such\ndecision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. In consideration of the Information being furnished to SAP and the Company, each of SAP and the Company hereby agree that,\nuntil twelve (12) months after the date of termination of this Agreement, such party will not solicit for employment with such party or any\nof its subsidiaries, or employ, any of the current officers or employees of the other party with whom such party has had contact during\nthe term of this Agreement and who became known by such party or who was identified to such party as part of the Evaluation under\nthis Agreement. Notwithstanding the foregoing, nothing herein shall restrict or preclude either party from (A) making generalized\nsearches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (B) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other party or (C) hiring an employee of the other\nparty who first initiates an employment discussion with such party, so long as such party has not violated the restrictions on solicitation\ncontained in this Agreement.\n14. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties\nagree that until one (1) year after the date of termination of this Agreement, neither party nor any of each party’s affiliates or its\nRepresentatives acting on the party’s behalf will, unless specifically invited in writing by the other party’s Board of Directors or its duly\nauthorized representative: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities, or indebtedness of the other party or any subsidiary thereof, or any\nsuccessor entity; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the\nSecurities Exchange Act of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of,\nany voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any\nmerger, consolidation, stock purchase tender or exchange offer, restructuring or business combination, involving the other party or to\npurchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way\nparticipate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the foregoing; (v) request the other party\nor any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public\ndisclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public\nannouncement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the\ncontrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of\nthe other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that each\nsuch submission is made on a confidential basis and states that the provider does not intend to make a public announcement related to\nsuch submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that the\nreceipt thereof by the other party does not require public disclosure of such submission and (2) no party shall be bound by the\nforegoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 34 Act) other than such party or its\naffiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise,\nbeneficial ownership of more than 50% of the outstanding voting securities of the other party or assets of the other party or its\nsubsidiaries representing more than 50% of the consolidated earning power of the other party and its subsidiaries and the other party’s\nBoard of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an\nagreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving\nthe other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior\nto such transaction, had beneficial ownership of 50% or more of the voting power of the other party would not continue to\nMUTUAL NON-DISCLOSURE AGREEMENT\nbeneficially own by virtue of their exchange or retention of securities of such other party representing at least 50% of the voting power\nof the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s\nBoard of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be\napproved.\n15. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to\nequitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the\nprovisions of this Agreement.\n16. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors,\nemployees, agents or controlling persons of such Representatives makes any express or implied representation or warranty regarding\nthe Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the\nConfidential Information.\n17. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of\nAmerica, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New\nYork law. The parties agree the courts of the State of California shall be the exclusive venue for disputes arising under this Agreement.\nIn the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be\nunenforceable, the remaining portions hereof shall remain in full force and effect.\n18. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder\nin connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the\nevent the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of\nwork product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and\nobligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither Party will\nassign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party. No amendment or\nmodification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the\nparties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed\na subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay\nby either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n19. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such\nparty’s sole discretion upon thirty (30) days written notice to the other party. The provisions herein concerning the disclosure, protection\nand use of Confidential Information, including Sections 3, 4, 7 and 9, shall survive the termination or expiration of this Agreement. The\nnon-solicit and standstill obligations shall remain in effect as provided in Sections 13 or 14, as applicable.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together\nshall constitute one and the same agreement.\nLOGO
64abe3bf110e45ead01aad142e549a45.pdf	effective_date jurisdiction party term	EX-99.(E)(6) 2 d459564dex99e6.htm CONFIDENTIALITY AGREEMENT DATED OCTOBER 30, 2012\nExhibit (e)(6)\nEXECUTION VERSION\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nOctober 30, 2012\nEQT Infrastructure II GP B.V.\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention:\nDêon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nIn order to allow EQT Infrastructure II Limited Partnership (“you”), to evaluate a potential negotiated transaction (the “Proposed Transaction”)\nwith Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the “Company”), we may in our discretion furnish to you,\nupon your execution and delivery to us of this letter agreement, certain information about the properties and operations of the Company. As used in\nthis letter agreement, the terms “we” and “us” shall mean Westway Group, Inc., acting through its Board of Directors (the “Board”) or the special\ncommittee of the Board (the “Special Committee”) given the authority to act on behalf of the Board in this regard. All information about the\nCompany furnished by us or our Representatives (as defined below), whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, is referred to in this letter agreement as “Proprietary Information.” Proprietary Information includes\n(i) all notes, analyses, compilations, studies or other documents prepared by you or your Representatives which contain or reflect or are based upon,\nin whole or in part, the information furnished to you or your Representatives pursuant hereto, and (ii) the fact that the Company is considering and\nmay negotiate a Proposed Transaction, the terms or conditions or any other facts relating thereto, the fact that discussions are taking place with\nrespect thereto or the status thereof, the fact that this letter agreement has been executed and the fact that Proprietary Information has been made\navailable to you or your Representatives. Proprietary Information does not include information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by you or your Representatives in breach of this letter agreement, (b) was available to you or your\nRepresentatives on a nonconfidential basis prior to its disclosure by us or our Representatives; provided that the source of such information is not\nknown to you to be bound by a confidentiality agreement with us or any Representative of ours, or is otherwise not under an obligation to us or any\nRepresentative of ours not to transmit the information to you, or (c) becomes available to you or your Representatives on a nonconfidential basis\nfrom a person other than us or our Representatives who is not otherwise known to you to be bound by a confidentiality agreement with us or any\nRepresentative of ours, or is otherwise not under an obligation to us or any Representative of ours not to transmit the information to you. As used in\nthis letter agreement, the term “Representative” means, as to any person, such person’s affiliates, if any, and its and their (or their general partner’s,\nas applicable) directors, officers, employees, managing members, agents and advisors (including, without limitation, financial advisors, counsel and\naccountants), together with the “Representatives” of such Representatives; provided, that your “affiliates” for purposes of this letter agreement shall\ninclude, as applicable, your general partner, manager, the managing members of your general\nEQT Infrastructure II GP B.V., a private company with limited liability (“besloten vennootschap met beperkte aansprakelijkheid”) registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\n1\n1\npartner and the other investment partnerships under common control with you. As used in this letter agreement, the term “person” shall be broadly\ninterpreted to include, without limitation, the media, and any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by us, you agree (a) to keep all Proprietary Information confidential and not to disclose or reveal any\nProprietary Information to any person, including, without limitation, management or operations, other than your Representatives who are\nparticipating in your evaluation of the Proposed Transaction and who, in your reasonable judgment, need to know the Proprietary Information for the\npurpose of evaluating the Proposed Transaction, and who are informed of the confidential nature of the Proprietary Information and who agree to be\nbound by the non-disclosure and use limitation provisions of this letter agreement that are applicable to you, and (b) not to use Proprietary\nInformation, directly or indirectly, for any purpose, including, without limitation, to compete with the Company, other than in connection with your\nevaluation of the Proposed Transaction or the consummation of the Proposed Transaction pursuant to a final definitive agreement with the Company\n(“FDA”). You agree that the dissemination of Proprietary Information within your organization shall be strictly limited to the minimum possible\nnumber of people and only to those persons whose duties require that they know such Proprietary Information for purposes of evaluating the\nProposed Transaction, provided, further, that in no event will you share any of the Proprietary Information, the existence of this letter agreement or\nthe fact that you have received Proprietary Information with any operating management or personnel of any competing business which you operate\nunless you have received our prior written consent to do so.\nYou agree to inform each of your Representatives of the confidential nature of the Proprietary Information and of this letter agreement and to\nuse your reasonable best efforts to cause your Representatives to observe the terms of this letter agreement and not to use the Proprietary Information\nother than in connection with your evaluation of the Proposed Transaction. In any case, you will be responsible for any breach of the terms of this\nletter agreement by you or your Representatives and you agree at your sole expense to take all reasonable measures to restrain its Representatives\nfrom prohibited or unauthorized disclosure or use of Proprietary Information or other breach of this letter agreement.\nIn the event that you are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Proprietary\nInformation or any other information concerning the Company or the Proposed Transaction, you agree that, unless prohibited by applicable law, you\nwill provide us with prompt notice of such request or requirement in order to enable us to seek an appropriate protective order or other remedy, to\nconsult with you with respect to our taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in\npart, with the terms of this letter agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, you are, on the advice of\nyour legal counsel to that effect, legally required to disclose Proprietary Information, you may, after notice to and consultation with us, disclose\nsolely that Proprietary Information which on the advice of legal counsel you are legally required to disclose. In any such event you will use your\nreasonable best efforts (and will reasonably cooperate with us in our efforts) to ensure that such Proprietary Information and other information that is\nso disclosed will be accorded confidential treatment.\nIn the event that you supply to the Company or to us or to any of our subsidiaries any information that you deem to be confidential (“Your\nConfidential Information”) then we agree that as regards Your Confidential Information we shall perform and observe mutatis mutandis the same\nobligations in this letter agreement as apply to you in respect of Proprietary Information and, in addition, that the same rights, benefits and beneficial\nexclusions that we have under this letter agreement shall also apply mutatis mutandis to you.\nYou acknowledge that the Company has the absolute right to determine what Proprietary Information, properties and personnel it wishes to\nmake available to you. During the course of your evaluation, you and your Representatives agree that you will not, directly or indirectly initiate\ncontact for any purpose relating to your\n-2-\nevaluation of the Proposed Transaction with any director, officer, employee, customer or supplier of the Company or any other third party actually\nknown to you to be related to the Company and that you will submit any requests for such contact only to Evercore Group L.L .C., as advisor to the\nCompany. If your evaluation of the Proposed Transaction is terminated by you or the Company, you and your Representatives will permanently\ncease all such contacts for any purposes relating to your evaluation of the Proposed Transaction, whether or not previously authorized.\nYou acknowledge that as of the date hereof, except as disclosed in the Company’s public filings with the Securities and Exchange Commission\nas of the date hereof, neither you nor any of your affiliates beneficially own any securities or rights to acquire any securities of the Company. You\nalso agree that for a period of one year from the date of this letter agreement, neither you nor any of your affiliates will, directly or indirectly, unless\nspecifically invited in writing to do so by the Board or, as appropriate, the Special Committee:\n(a) acquire, offer or seek to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any securities\nor direct or indirect rights to acquire any securities of the Company (except pursuant to a stock split, stock dividend or reclassification), or of any\nsuccessor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling\nperson (but with respect to such controlling person, only with respect to assets relating to the Company);\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote or consent (as such terms are used in the\nrules of the Securities and Exchange Commission), or seek to advise or influence, alone or in concert with others, any person or entity with respect to\nthe voting of, or granting of a consent with respect to, any voting securities of the Company, or seek to control or influence, alone or in concert with\nothers, the management, Board of Directors or policies of the Company; (c) nominate, or seek to nominate, directly or indirectly, any person to the\nBoard of Directors;\n(d) make, effect, initiate, cause or participate in, directly or indirectly, or make any public announcement with respect to, or submit or make a\nproposal for, or offer of (with or without conditions) any merger, business combination, tender or exchange offer, recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction involving the Company or any of its securities or assets;\n(e) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and\nthe rules promulgated thereunder) in connection with any of the foregoing;\n(f) negotiate, discuss, advise, assist or encourage any other person in connection with the foregoing or take any other action intended to, or\nreasonably likely to, force the Company to make a public announcement regarding the types of matters set forth above;\n(g) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of any action referred to in clauses (a) through (e) above;\nor\n(h) request the Company, the Board, the Special Committee or any of the Company’s Representatives, directly or indirectly, to amend, waive\nor consider the amendment or waiver of any provision of this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nIf you determine that you do not wish to proceed with further discussions and negotiations regarding the Proposed Transaction, you will\npromptly advise us of that decision. In that case, or in the event that we, in our sole discretion, so request or the Proposed Transaction is not\nconsummated by you, you will promptly deliver to us or destroy (and deliver to us a certification of such destruction) all Proprietary Information,\nincluding all\n-3-\ncopies, reproductions, electronic records, summaries, analyses or extracts thereof or based thereon in your possession or in the possession of any\nRepresentative of yours. However, you are allowed to keep copies of the Proprietary Information if required in order for you to meet legal\nrequirements and regulations.\nYou agree and acknowledge that the Company reserves the right, in its sole discretion and without any liability to you, to reject any and all\nproposals made by you or any of your Representatives with regard to a transaction between you and the Company and to terminate discussions and\nnegotiations with you at any time. You further agree and acknowledge that (a) the Board of Directors and the Special Committee shall be free to\nconduct the process for the Proposed Transaction as they in their sole discretion shall determine (including, without limitation, negotiating with any\nprospective counterparty and entering into an FDA without prior notice to you or to any other person), (b) any procedures relating to such Proposed\nTransaction may be changed at any time without notice to you or any other person and (c) you shall not have any claims whatsoever against the\nCompany, its Representatives or any of the respective officers, directors, employees, agents or controlling persons of such Representatives arising\nout of, or relating to, a possible transaction involving the Company.\nYou acknowledge that neither the Company nor its Representatives and none of the respective officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the accuracy or completeness of any\nProprietary Information. You agree that neither the Company nor its Representatives shall have any liability to you or any of your Representatives\nrelating to or arising from your or their use of any Proprietary Information or for any errors therein or omissions therefrom. It is understood that the\nscope of any representations and warranties to be given by the Company will be negotiated along with other terms and conditions in arriving at a\nmutually acceptable FDA should discussions between you and the Company progress to such a point. Only those representations and warranties that\nare made in an FDA when, as and if executed and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nYou agree that, without our prior written consent, you will not for a period of two years from the date hereof (the “Non-Solicit Period”)\ndirectly or indirectly cause or encourage any person to solicit for employment or employ any employee who is now employed by us or any of our\nsubsidiaries, including management, sales and technical personnel who is or becomes known to you as a result of your evaluation or otherwise in\nconnection with the Proposed Transaction. It is understood and agreed that the foregoing shall not be deemed to prohibit general solicitations of\nemployment not specifically directed toward employees of the Company; provided that notwithstanding anything contained herein, you will not\nemploy any of the individuals set forth on Exhibit A hereto during the Non-Solicit Period.\nWithout prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy for\nbreach of this letter agreement and that we shall be entitled to obtain equitable relief by way of injunction or otherwise if you or any of your\nRepresentatives breach or threaten to breach any of the provisions of this letter agreement. You further agree to waive any requirement for security or\nposting of any bond in connection with any such equitable remedy.\nIt is further understood and agreed that no failure or delay by either you nor us in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to\ncontracts executed in and to be performed in that state. Any action arising out of or relating to this letter agreement shall be brought exclusively in\nthe state or federal courts sitting in the District of Delaware which we and you agree is a convenient forum.\nAny assignment of this letter agreement by you without our prior written consent shall be void.\n-4-\nThis letter agreement contains the entire agreement between you and us concerning the subject matter hereof, and no modification of this letter\nagreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless approved in writing by each of you and us. You\nacknowledge that the Board of Directors or Special Committee may condition your continued receipt of Proprietary Information on you entering into\nan amended or new confidentiality agreement. Any such new agreement shall supercede this letter agreement to the extent provided therein. The\nprovisions of the FDA may supersede this letter agreement and any such new agreement to the extent specifically set forth in the FDA.\nYou acknowledge that you are aware, and that you will advise your Representatives who receive Proprietary Information or otherwise are\ninformed as to the matters that are the subject matter of this letter agreement, of your and their obligations under the United States securities laws.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\n-5-\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J . Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J . Hedeman Joosten\nName: M.H .J . Hedeman Joosten\nTitle: Director\nExhibit A\nCorporate:\nJames Jenkins, Chief Executive Officer\nThomas Masilla Jr., Chief Financial Officer and Secretary\nWade Blanchard, Vice President, European Health, Safety, Environmental, and Quality (“HSEQ”)\nChad Saltzman, Corporate Controller\nGrayson Marloff\nJoe Roussell\nHuman Resources:\nMarie O’Donnell\nInformation Technology:\nPeter Griffiths\nRakesh Bhansali\nWestway Feed Products LLC:\nSteve Boehmer, President\nDr. Joe Harris, Executive Vice President\nBill Anderson, Director of Business Development\nMike Strobel, Director of Operations\nWillie Hayes, Director of Sales\nJerry Stephenson, National Accts. Manager\nRob Barrigan\nWestway Terminal Company LLC:\nGene McClain, President\nBert van Holst, European Operations Director\nRobbie Johnson, VP of Operations and Engineering\nMark O’Donnell, Regional Sales Manager\nSteven Palm, Regional Sales Manager\nBill Johnston, Regional Manager\nBrian Kleczkowski, Regional Manager\nDino DeLuca, Regional Manager\nJennifer Montz\nEtienne Mostertman\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nNovember 7, 2012\nEQT Infrastructure II GP B.V.\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention:\nDêon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nReference is hereby made to the letter agreement (the “Letter Agreement”), dated October 30, 2012, by and between EQT Infrastructure II\nLimited Partnership (“you”) and Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the “Company”). As used herein,\nthe terms “we” and “us” shall mean Westway Group, Inc., acting through its Board of Directors (the “Board”) or the special committee of the Board\n(the “Special Committee”) given the authority to act on behalf of the Board in this regard.\nThe parties hereto agree that, for purposes of the Letter Agreement, the term “Representatives” therein shall mean, as to any person, such\nperson’s affiliates, if any, and its and their (or their general partner’s, as applicable) directors, officers, employees, managing members, agents and\nadvisors (including, without limitation, financial advisors, potential sources of debt financing, counsel and accountants), together with the\n“Representatives” of such Representatives.\nExcept as expressly provided herein, all other terms and provisions of the Letter Agreement shall remain in full force and effect.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\nEQT Infrastructure II GP B.V., a private company with limited liability (“besloten vennootschap met beperkte aansprakelijkheid”) registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\n1\n1\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J . Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J . Hedeman Joosten\nName: M.H .J . Hedeman Joosten\nTitle: Director	EX-99.(E)(6) 2 d459564dex99e6.htm CONFIDENTIALITY AGREEMENT DATED OCTOBER 30, 2012\nExhibit ()(6)\nEXECUTION VERSION\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nOctober 30, 2012\nEQT Infrastructure I GP B.V.1\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention: Déon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nIn order to allow EQT Infrastructure II Limited Partnership (“you”), to evaluate a potential negotiated transaction (the “Proposed Transaction™)\nwith Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the “Company”), we may in our discretion furnish to you,\nupon your execution and delivery to us of this letter agreement, certain information about the properties and operations of the Company. As used in\nthis letter agreement, the terms “we” and “us” shall mean Westway Group, Inc., acting through its Board of Directors (the “Board”) or the special\ncommittee of the Board (the “Special Committee”) given the authority to act on behalf of the Board in this regard. All information about the\nCompany furnished by us or our Representatives (as defined below), whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, is referred to in this letter agreement as “Proprietary Information.” Proprietary Information includes\n(i) all notes, analyses, compilations, studies or other documents prepared by you or your Representatives which contain or reflect or are based upon,\nin whole or in part, the information furnished to you or your Representatives pursuant hereto, and (ii) the fact that the Company is considering and\nmay negotiate a Proposed Transaction, the terms or conditions or any other facts relating thereto, the fact that discussions are taking place with\nrespect thereto or the status thereof, the fact that this letter agreement has been executed and the fact that Proprietary Information has been made\navailable to you or your Representatives. Proprietary Information does not include information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by you or your Representatives in breach of this letter agreement, (b) was available to you or your\nRepresentatives on a nonconfidential basis prior to its disclosure by us or our Representatives; provided that the source of such information is not\nknown to you to be bound by a confidentiality agreement with us or any Representative of ours, or is otherwise not under an obligation to us or any\nRepresentative of ours not to transmit the information to you, or (c) becomes available to you or your Representatives on a nonconfidential basis\nfrom a person other than us or our Representatives who is not otherwise known to you to be bound by a confidentiality agreement with us or any\nRepresentative of ours, or is otherwise not under an obligation to us or any Representative of ours not to transmit the information to you. As used in\nthis letter agreement, the term “Representative” means, as to any person, such person’s affiliates, if any, and its and their (or their general partner’s,\nas applicable) directors, officers, employees, managing members, agents and advisors (including, without limitation, financial advisors, counsel and\naccountants), together with the “Representatives” of such Representatives; provided, that your “affiliates” for purposes of this letter agreement shall\ninclude, as applicable, your general partner, manager, the managing members of your general\n' EQT Infrastructure IT GP B.V., a private company with limited liability (“besloten vennootschap met beperkte aansprakelijkheid”) registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\npartner and the other investment partnerships under common control with you. As used in this letter agreement, the term “person” shall be broadly\ninterpreted to include, without limitation, the media, and any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by us, you agree (a) to keep all Proprietary Information confidential and not to disclose or reveal any\nProprietary Information to any person, including, without limitation, management or operations, other than your Representatives who are\nparticipating in your evaluation of the Proposed Transaction and who, in your reasonable judgment, need to know the Proprietary Information for the\npurpose of evaluating the Proposed Transaction, and who are informed of the confidential nature of the Proprietary Information and who agree to be\nbound by the non-disclosure and use limitation provisions of this letter agreement that are applicable to you, and (b) not to use Proprietary\nInformation, directly or indirectly, for any purpose, including, without limitation, to compete with the Company, other than in connection with your\nevaluation of the Proposed Transaction or the consummation of the Proposed Transaction pursuant to a final definitive agreement with the Company\n(“FDA”). You agree that the dissemination of Proprietary Information within your organization shall be strictly limited to the minimum possible\nnumber of people and only to those persons whose duties require that they know such Proprietary Information for purposes of evaluating the\nProposed Transaction, provided, further, that in no event will you share any of the Proprietary Information, the existence of this letter agreement or\nthe fact that you have received Proprietary Information with any operating management or personnel of any competing business which you operate\nunless you have received our prior written consent to do so.\nYou agree to inform each of your Representatives of the confidential nature of the Proprietary Information and of this letter agreement and to\nuse your reasonable best efforts to cause your Representatives to observe the terms of this letter agreement and not to use the Proprietary Information\nother than in connection with your evaluation of the Proposed Transaction. In any case, you will be responsible for any breach of the terms of this\nletter agreement by you or your Representatives and you agree at your sole expense to take all reasonable measures to restrain its Representatives\nfrom prohibited or unauthorized disclosure or use of Proprietary Information or other breach of this letter agreement.\nIn the event that you are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Proprietary\nInformation or any other information concerning the Company or the Proposed Transaction, you agree that, unless prohibited by applicable law, you\nwill provide us with prompt notice of such request or requirement in order to enable us to seek an appropriate protective order or other remedy, to\nconsult with you with respect to our taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in\npart, with the terms of this letter agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, you are, on the advice of\nyour legal counsel to that effect, legally required to disclose Proprietary Information, you may, after notice to and consultation with us, disclose\nsolely that Proprietary Information which on the advice of legal counsel you are legally required to disclose. In any such event you will use your\nreasonable best efforts (and will reasonably cooperate with us in our efforts) to ensure that such Proprietary Information and other information that is\nso disclosed will be accorded confidential treatment.\nIn the event that you supply to the Company or to us or to any of our subsidiaries any information that you deem to be confidential (“Your\nConfidential Information”) then we agree that as regards Your Confidential Information we shall perform and observe mutatis mutandis the same\nobligations in this letter agreement as apply to you in respect of Proprietary Information and, in addition, that the same rights, benefits and beneficial\nexclusions that we have under this letter agreement shall also apply mutatis mutandis to you.\nYou acknowledge that the Company has the absolute right to determine what Proprietary Information, properties and personnel it wishes to\nmake available to you. During the course of your evaluation, you and your Representatives agree that you will not, directly or indirectly initiate\ncontact for any purpose relating to your\n-\nevaluation of the Proposed Transaction with any director, officer, employee, customer or supplier of the Company or any other third party actually\nknown to you to be related to the Company and that you will submit any requests for such contact only to Evercore Group L.L.C., as advisor to the\nCompany. If your evaluation of the Proposed Transaction is terminated by you or the Company, you and your Representatives will permanently\ncease all such contacts for any purposes relating to your evaluation of the Proposed Transaction, whether or not previously authorized.\nYou acknowledge that as of the date hereof, except as disclosed in the Company’s public filings with the Securities and Exchange Commission\nas of the date hereof, neither you nor any of your affiliates beneficially own any securities or rights to acquire any securities of the Company. You\nalso agree that for a period of one year from the date of this letter agreement, neither you nor any of your affiliates will, directly or indirectly, unless\nspecifically invited in writing to do so by the Board or, as appropriate, the Special Committee:\n(a) acquire, offer or seek to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any securities\nor direct or indirect rights to acquire any securities of the Company (except pursuant to a stock split, stock dividend or reclassification), or of any\nsuccessor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling\nperson (but with respect to such controlling person, only with respect to assets relating to the Company);\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote or consent (as such terms are used in the\nrules of the Securities and Exchange Commission), or seek to advise or influence, alone or in concert with others, any person or entity with respect to\nthe voting of, or granting of a consent with respect to, any voting securities of the Company, or seek to control or influence, alone or in concert with\nothers, the management, Board of Directors or policies of the Company; (c) nominate, or seek to nominate, directly or indirectly, any person to the\nBoard of Directors;\n(d) make, effect, initiate, cause or participate in, directly or indirectly, or make any public announcement with respect to, or submit or make a\nproposal for, or offer of (with or without conditions) any merger, business combination, tender or exchange offer, recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction involving the Company or any of its securities or assets;\n(e) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and\nthe rules promulgated thereunder) in connection with any of the foregoing;\n(f) negotiate, discuss, advise, assist or encourage any other person in connection with the foregoing or take any other action intended to, or\nreasonably likely to, force the Company to make a public announcement regarding the types of matters set forth above;\n(g) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of any action referred to in clauses (a) through (e) above;\nor\n(h) request the Company, the Board, the Special Committee or any of the Company’s Representatives, directly or indirectly, to amend, waive\nor consider the amendment or waiver of any provision of this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nIf you determine that you do not wish to proceed with further discussions and negotiations regarding the Proposed Transaction, you will\npromptly advise us of that decision. In that case, or in the event that we, in our sole discretion, so request or the Proposed Transaction is not\nconsummated by you, you will promptly deliver to us or destroy (and deliver to us a certification of such destruction) all Proprietary Information,\nincluding all\n_3-\ncopies, reproductions, electronic records, summaries, analyses or extracts thereof or based thereon in your possession or in the possession of any\nRepresentative of yours. However, you are allowed to keep copies of the Proprietary Information if required in order for you to meet legal\nrequirements and regulations.\nYou agree and acknowledge that the Company reserves the right, in its sole discretion and without any liability to you, to reject any and all\nproposals made by you or any of your Representatives with regard to a transaction between you and the Company and to terminate discussions and\nnegotiations with you at any time. You further agree and acknowledge that (a) the Board of Directors and the Special Committee shall be free to\nconduct the process for the Proposed Transaction as they in their sole discretion shall determine (including, without limitation, negotiating with any\nprospective counterparty and entering into an FDA without prior notice to you or to any other person), (b) any procedures relating to such Proposed\nTransaction may be changed at any time without notice to you or any other person and (c) you shall not have any claims whatsoever against the\nCompany, its Representatives or any of the respective officers, directors, employees, agents or controlling persons of such Representatives arising\nout of, or relating to, a possible transaction involving the Company.\nYou acknowledge that neither the Company nor its Representatives and none of the respective officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the accuracy or completeness of any\nProprietary Information. You agree that neither the Company nor its Representatives shall have any liability to you or any of your Representatives\nrelating to or arising from your or their use of any Proprietary Information or for any errors therein or omissions therefrom. It is understood that the\nscope of any representations and warranties to be given by the Company will be negotiated along with other terms and conditions in arriving at a\nmutually acceptable FDA should discussions between you and the Company progress to such a point. Only those representations and warranties that\nare made in an FDA when, as and if executed and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nYou agree that, without our prior written consent, you will not for a period of two years from the date hereof (the “Non-Solicit Period”)\ndirectly or indirectly cause or encourage any person to solicit for employment or employ any employee who is now employed by us or any of our\nsubsidiaries, including management, sales and technical personnel who is or becomes known to you as a result of your evaluation or otherwise in\nconnection with the Proposed Transaction. It is understood and agreed that the foregoing shall not be deemed to prohibit general solicitations of\nemployment not specifically directed toward employees of the Company; provided that notwithstanding anything contained herein, you will not\nemploy any of the individuals set forth on Exhibit A hereto during the Non-Solicit Period.\nWithout prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy for\nbreach of this letter agreement and that we shall be entitled to obtain equitable relief by way of injunction or otherwise if you or any of your\nRepresentatives breach or threaten to breach any of the provisions of this letter agreement. You further agree to waive any requirement for security or\nposting of any bond in connection with any such equitable remedy.\nIt is further understood and agreed that no failure or delay by either you nor us in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to\ncontracts executed in and to be performed in that state. Any action arising out of or relating to this letter agreement shall be brought exclusively in\nthe state or federal courts sitting in the District of Delaware which we and you agree is a convenient forum.\nAny assignment of this letter agreement by you without our prior written consent shall be void.\n4-\nThis letter agreement contains the entire agreement between you and us concerning the subject matter hereof, and no modification of this letter\nagreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless approved in writing by each of you and us. You\nacknowledge that the Board of Directors or Special Committee may condition your continued receipt of Proprietary Information on you entering into\nan amended or new confidentiality agreement. Any such new agreement shall supercede this letter agreement to the extent provided therein. The\nprovisions of the FDA may supersede this letter agreement and any such new agreement to the extent specifically set forth in the FDA.\nYou acknowledge that you are aware, and that you will advise your Representatives who receive Proprietary Information or otherwise are\ninformed as to the matters that are the subject matter of this letter agreement, of your and their obligations under the United States securities laws.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\n_5-\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J. Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J. Hedeman Joosten\nName: M.H.J. Hedeman Joosten\nTitle: Director\nExhibit A\nCorporate:\nJames Jenkins, Chief Executive Officer\nThomas Masilla Jr., Chief Financial Officer and Secretary\nWade Blanchard, Vice President, European Health, Safety, Environmental, and Quality (“HSEQ”)\nChad Saltzman, Corporate Controller\nGrayson Marloff\nJoe Roussell\nHuman Resources:\nMarie O’Donnell\nInformation Technology:\nPeter Griffiths\nRakesh Bhansali\nWestway Feed Products LL.C:\nSteve Boehmer, President\nDr. Joe Harris, Executive Vice President\nBill Anderson, Director of Business Development\nMike Strobel, Director of Operations\nWillie Hayes, Director of Sales\nJerry Stephenson, National Accts. Manager\nRob Barrigan\nWestway Terminal Company LL.C:\nGene McClain, President\nBert van Holst, European Operations Director\nRobbie Johnson, VP of Operations and Engineering\nMark O’Donnell, Regional Sales Manager\nSteven Palm, Regional Sales Manager\nBill Johnston, Regional Manager\nBrian Kleczkowski, Regional Manager\nDino DeLuca, Regional Manager\nJennifer Montz\nEtienne Mostertman\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nNovember 7, 2012\nEQT Infrastructure I GP B.V.1\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention: Déon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nReference is hereby made to the letter agreement (the “Letter Agreement”), dated October 30, 2012, by and between EQT Infrastructure II\nLimited Partnership (“you”) and Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the “Company”). As used herein,\nthe terms “we” and “us” shall mean Westway Group, Inc., acting through its Board of Directors (the “Board”) or the special committee of the Board\n(the “Special Committee”) given the authority to act on behalf of the Board in this regard.\nThe parties hereto agree that, for purposes of the Letter Agreement, the term “Representatives” therein shall mean, as to any person, such\nperson’s affiliates, if any, and its and their (or their general partner’s, as applicable) directors, officers, employees, managing members, agents and\nadvisors (including, without limitation, financial advisors, potential sources of debt financing, counsel and accountants), together with the\n“Representatives” of such Representatives.\nExcept as expressly provided herein, all other terms and provisions of the Letter Agreement shall remain in full force and effect.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\n' EQT Infrastructure IT GP B.V., a private company with limited liability (“besloten vennootschap met beperkte aansprakelijkheid”) registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle:  Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J. Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J. Hedeman Joosten\nName: M.H.J. Hedeman Joosten\nTitle: Director	EX-99.(E)(6) 2 d459564dex99e6.htm CONFIDENTIALITY AGREEMENT DATED OCTOBER 30, 2012\nExhibit (e)(6)\nEXECUTION VERSION\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nOctober 30, 2012\nEQT Infrastructure II GP B.V.1\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention:\nDeon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nIn order to allow EQT Infrastructure II Limited Partnership ("you"), to evaluate a potential negotiated transaction (the "Proposed Transaction")\nwith Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the "Company"), we may in our discretion furnish to you,\nupon your execution and delivery to us of this letter agreement, certain information about the properties and operations of the Company. As used\nin\nthis\nletter agreement, the terms "we" and "us" shall mean Westway Group, Inc., acting through its Board of Directors (the "Board") or the special\ncommittee of the Board (the "Special Committee") given the authority to act on behalf of the Board in this regard. All information about the\nCompany furnished by us or our Representatives (as defined below), whether furnished before or after the date hereof, whether oral or written, and\nregardless\nof\nthe\nmanner\nin\nwhich\nit\nis\nfurnished,\nis\nreferred\nto\nin\nthis\nletter\nagreement\nas\n"Proprietary\nInformation."\nProprietary\nInformation\nincludes\n(i) all notes, analyses, compilations, studies or other documents prepared by you or your Representatives which contain or reflect or are based upon,\nin\nwhole or in part, the information furnished to you or your Representatives pursuant hereto, and (ii) the fact that the Company is considering and\nmay negotiate a Proposed Transaction, the terms or conditions or any other facts relating thereto, the fact that discussions are taking place with\nrespect thereto or the status thereof, the fact that this letter agreement has been executed and the fact that Proprietary Information has been made\navailable to you or your Representatives. Proprietary Information does not include information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by you or your Representatives in breach of this letter agreement, (b) was available to you or your\nRepresentatives on a nonconfidential basis prior to its disclosure by us or our Representatives; provided that the source of such information is not\nknown to you to be bound by a confidentiality agreement with us or any Representative of ours, or is otherwise not under an obligation to us or\nany\nRepresentative of ours not to transmit the information to you, or (c) becomes available to you or your Representatives on a nonconfidential basis\nfrom a person other than us or our Representatives who is not otherwise known to you to be bound by a confidentiality agreement with us or any\nRepresentative of ours, or is otherwise not under an obligation to us or any Representative of ours not to transmit the information to you. As used\nin\nthis letter agreement, the term "Representative" means, as to any person, such person's affiliates, if any, and its and their (or their general partner's,\nas applicable) directors, officers, employees, managing members, agents and advisors (including, without limitation, financial advisors, counsel and\naccountants), together with the "Representatives" of such Representatives; provided, that your "affiliates" for purposes of this letter agreement shall\ninclude, as applicable, your general partner, manager the managing members of your general\n1\nEQT Infrastructure II GP B.V., a private company with limited liability ("besloten vennootschap met beperkte aansprakelijkheid") registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place\nof\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\npartner and the other investment partnerships under common control with you. As used in this letter agreement, the term "person" shall be broadly\ninterpreted to include, without limitation, the media, and any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by us, you agree (a) to keep all Proprietary Information confidential and not to disclose or reveal any\nProprietary Information to any person, including, without limitation, management or operations, other than your Representatives who are\nparticipating\nin\nyour\nevaluation\nof\nthe\nProposed\nTransaction\nand\nwho,\nin\nyour\nreasonable\njudgment,\nneed\nto\nknow\nthe\nProprietary\nInformation\nfor\nthe\npurpose of evaluating the Proposed Transaction, and who are informed of the confidential nature of the Proprietary Information and who agree to be\nbound by the non-disclosure and use limitation provisions of this letter agreement that are applicable to you, and (b) not to use Proprietary\nInformation, directly or indirectly, for any purpose, including, without limitation, to compete with the Company, other than in connection with your\nevaluation of the Proposed Transaction or the consummation of the Proposed Transaction pursuant to a final definitive agreement with the Company\n("FDA"). You agree that the dissemination of Proprietary Information within your organization shall be strictly limited to the minimum possible\nnumber of people and only to those persons whose duties require that they know such Proprietary Information for purposes of evaluating the\nProposed Transaction, provided, further, that in no event will you share any of the Proprietary Information, the existence of this letter agreement or\nthe fact that you have received Proprietary Information with any operating management or personnel of any competing business which you operate\nunless you have received our prior written consent to do so.\nYou agree to inform each of your Representatives of the confidential nature of the Proprietary Information and of this letter agreement and to\nuse your reasonable best efforts to cause your Representatives to observe the terms of this letter agreement and not to use the Proprietary Information\nother than in connection with your evaluation of the Proposed Transaction. In any case, you will be responsible for any breach of the terms of this\nletter agreement by you or your Representatives and you agree at your sole expense to take all reasonable measures to restrain its Representatives\nfrom prohibited or unauthorized disclosure or use of Proprietary Information or other breach of this letter agreement.\nIn the event that you are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Proprietary\nInformation or any other information concerning the Company or the Proposed Transaction, you agree that, unless prohibited by applicable law, you\nwill provide us with prompt notice of such request or requirement in order to enable us to seek an appropriate protective order or other remedy, to\nconsult with you with respect to our taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in\npart, with the terms of this letter agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, you are, on the advice\nof\nyour legal counsel to that effect, legally required to disclose Proprietary Information, you may, after notice to and consultation with us, disclose\nsolely that Proprietary Information which on the advice of legal counsel you are legally required to disclose. In any such event you will use your\nreasonable best efforts (and will reasonably cooperate with us in our efforts) to ensure that such Proprietary Information and other information that\nis\nso disclosed will be accorded confidentia treatment.\nIn the event that you supply to the Company or to us or to any of our subsidiaries any information that you deem to be confidential ("Your\nConfidential Information") then we agree that as regards Your Confidential Information we shall perform and observe mutatis mutandis the same\nobligations in this letter agreement as apply to you in respect of Proprietary Information and, in addition, that the same rights, benefits and beneficial\nexclusions that we have under this letter agreement shall also apply mutatis mutandis to you.\nYou acknowledge that the Company has the absolute right to determine what Proprietary Information, properties and personnel it wishes to\nmake available to you. During the course of your evaluation, you and your Representatives agree that you will not, directly or indirectly initiate\ncontact for any purpose relating to your\n-2-\nevaluation of the Proposed Transaction with any director, officer, employee, customer or supplier of the Company or any other third party actually\nknown to you to be related to the Company and that you will submit any requests for such contact only to Evercore Group L.L.C., as advisor to the\nCompany. If your evaluation of the Proposed Transaction is terminated by you or the Company, you and your Representatives will permanently\ncease all such contacts for any purposes relating to your evaluation of the Proposed Transaction, whether or not previously authorized.\nYou acknowledge that as of the date hereof, except as disclosed in the Company's public filings with the Securities and\nExchange\nCommission\nas of the date hereof, neither you nor any of your affiliates beneficially own any securities or rights to acquire any securities of the Company. You\nalso agree that for a period of one year from the date of this letter agreement, neither you nor any of your affiliates will, directly or indirectly, unless\nspecifically invited in writing to do so by the Board or, as appropriate, the Special Committee:\n(a) acquire, offer or seek to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any securities\nor direct or indirect rights to acquire any securities of the Company (except pursuant to a stock split, stock dividend or reclassification), or of any\nsuccessor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling\nperson (but with respect to such controlling person, only with respect to assets relating to the Company);\n(b) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote or consent (as such terms are used in the\nrules of the Securities and Exchange Commission), or seek to advise or influence, alone or in concert with others, any person or entity with respect\nto\nthe voting of, or granting of a consent with respect to, any voting securities of the Company, or seek to control or influence, alone or in concert with\nothers, the management, Board of Directors or policies of the Company; (c) nominate, or seek to nominate, directly or indirectly, any person to the\nBoard of Directors;\n(d) make, effect, initiate, cause or participate in, directly or indirectly, or make any public announcement with respect to, or submit or make a\nproposal for, or offer of (with or without conditions) any merger, business combination, tender or exchange offer, recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction involving the Company or any of its securities or assets;\n(e) form, join or in any way participate in a "group" (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and\nthe rules promulgated thereunder) in connection with any of the foregoing;\n(f) negotiate, discuss, advise, assist or encourage any other person in connection with the foregoing or take any other action intended to, or\nreasonably likely to, force the Company to make a public announcement regarding the types of matters set forth above;\n(g) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of any action referred to in clauses (a) through (e) above;\nor\n(h) request the Company, the Board, the Special Committee or any of the Company's Representatives, directly or indirectly, to amend, waive\nor consider the amendment or waiver of any provision of this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nIf you determine that you do not wish to proceed with further discussions and negotiations regarding the Proposed Transaction, you will\npromptly advise us of that decision. In that case, or in the event that we, in our sole discretion, so request or the Proposed Transaction is not\nconsummated by you, you will promptly deliver to us or destroy (and deliver to us a certification of such destruction) all Proprietary Information,\nincluding all\n-3-\ncopies, reproductions, electronic records, summaries, analyses or extracts thereof or based thereon in your possession or in the possession of any\nRepresentative of yours. However, you are allowed to keep copies of the Proprietary Information if required in order for you to meet legal\nrequirements and regulations.\nYou agree and acknowledge that the Company reserves the right, in its sole discretion and without any liability to you, to reject any and all\nproposals made by you or any of your Representatives with regard to a transaction between you and the Company and to terminate discussions and\nnegotiations with you at any time. You further agree and acknowledge that (a) the Board of Directors and the Special Committee shall be free to\nconduct the process for the Proposed Transaction as they in their sole discretion shall determine (including, without limitation, negotiating with any\nprospective counterparty and entering into an FDA without prior notice to you or to any other person), (b) any procedures relating to such Proposed\nTransaction may be changed at any time without notice to you or any other person and (c) you shall not have any claims whatsoever against the\nCompany, its Representatives or any of the respective officers, directors, employees, agents or controlling persons of such Representatives arising\nout of, or relating to, a possible transaction involving the Company.\nYou acknowledge that neither the Company nor its Representatives and none of the respective officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the accuracy or completeness of any\nProprietary Information You agree that neither the Company nor its Representatives shall have any liability to you or any of your Representatives\nrelating to or arising from your or their use of any Proprietary Information or for any errors therein or omissions therefrom. It is understood that the\nscope of any representations and warranties to be given by the Company will be negotiated along with other terms and conditions in arriving at a\nmutually acceptable FDA should discussions between you and the Company progress to such a point. Only those representations and warranties\nthat\nare made in an FDA when, as and if executed and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nYou agree that, without our prior written consent, you will not for a period of two years from the date hereof (the "Non-Solicit Period")\ndirectly or indirectly cause or encourage any person to solicit for employment or employ any employee who is now employed by us or any of our\nsubsidiaries, including management, sales and technical personnel who is or becomes known to you as a result of your evaluation or otherwise\nin\nconnection with the Proposed Transaction. It is understood and agreed that the foregoing shall not be deemed to prohibit general solicitations of\nemployment not specifically directed toward employees of the Company; provided that notwithstanding anything contained herein, you will not\nemploy any of the individuals set forth on Exhibit A hereto during the Non-Solicit Period.\nWithout prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy for\nbreach of this letter agreement and that we shall be entitled to obtain equitable relief by way of injunction or otherwise if you or any of your\nRepresentatives breach or threaten to breach any of the provisions of this letter agreement. You further agree to waive any requirement for security or\nposting of any bond in connection with any such equitable remedy.\nIt is further understood and agreed that no failure or delay by either you nor us in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to\ncontracts executed in and to be performed in that state. Any action arising out of or relating to this letter agreement shall be brought exclusively in\nthe state or federal courts sitting in the District of Delaware which we and you agree is a convenient forum.\nAny assignment of this letter agreement by you without our prior written consent shall be void.\n-4-\nThis letter agreement contains the entire agreement between you and us concerning the subject matter hereof, and no modification of this letter\nagreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless approved in writing by each of you and us. You\nacknowledge that the Board of Directors or Special Committee may condition your continued receipt of Proprietary Information on you entering into\nan amended or new confidentiality agreement. Any such new agreement shall supercede this letter agreement to the extent provided therein. The\nprovisions of the FDA may supersede this letter agreement and any such new agreement to the extent specifically set forth in the FDA.\nYou acknowledge that you are aware, and that you will advise your Representatives who receive Proprietary Information or otherwise are\ninformed as to the matters that are the subject matter of this letter agreement, of your and their obligations under the United States securities\nlaws.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\n-5-\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J. Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J. Hedeman Joosten\nName: M.H.J. Hedeman Joosten\nTitle: Director\nExhibit A\nCorporate:\nJames Jenkins, Chief Executive Officer\nThomas Masilla Jr., Chief Financial Officer and Secretary\nWade Blanchard, Vice President, European Health, Safety, Environmental, and Quality ("HSEQ")\nChad Saltzman, Corporate Controller\nGrayson Marloff\nJoe Roussell\nHuman Resources:\nMarie O'Donnell\nInformation Technology:\nPeter Griffiths\nRakesh Bhansali\nWestway Feed Products LLC:\nSteve Boehmer, President\nDr. Joe Harris, Executive Vice President\nBill Anderson, Director of Business Development\nMike Strobel, Director of Operations\nWillie Hayes, Director of Sales\nJerry Stephenson, National Accts. Manager\nRob Barrigan\nWestway Terminal Company LLC:\nGene McClain, President\nBert van Holst, European Operations Director\nRobbie Johnson, VP of Operations and Engineering\nMark O'Donnell, Regional Sales Manager\nSteven Palm, Regional Sales Manager\nBill Johnston, Regional Manager\nBrian Kleczkowski, Regional Manager\nDino DeLuca, Regional Manager\nJennifer Montz\nEtienne Mostertman\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nNovember 7, 2012\nEQT Infrastructure II GP B.V.1\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention:\nDeon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nReference is hereby made to the letter agreement (the "Letter Agreement"), dated October 30, 2012, by and between EQT Infrastructure II\nLimited Partnership ("you") and Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the "Company"). As used herein,\nthe terms "we" and "us" shall mean Westway Group, Inc., acting through its Board of Directors (the "Board") or the special committee of the Board\n(the "Special Committee") given the authority to act on behalf of the Board in this regard.\nThe parties hereto agree that, for purposes of the Letter Agreement, the term "Representatives" therein shall mean, as to any person, such\nperson's affiliates, if any, and its and their (or their general partner's, as applicable) directors, officers, employees, managing members, agents and\nadvisors (including, without limitation, financial advisors, potential sources of debt financing, counsel and accountants), together with the\n"Representatives" of such Representatives.\nExcept as expressly provided herein, all other terms and provisions of the Letter Agreement shall remain in full force and effect.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\n1 EQT Infrastructure II GP B.V., a private company with limited liability ("besloten vennootschap met beperkte aansprakelijkheid") registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J. Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J. Hedeman Joosten\nName: M.H.J. Hedeman Joosten\nTitle: Director	EX-99.(E)(6) 2 d459564dex99e6.htm CONFIDENTIALITY AGREEMENT DATED OCTOBER 30, 2012\nExhibit (e)(6)\nEXECUTION VERSION\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nOctober 30, 2012\nEQT Infrastructure II GP B.V.\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention:\nDêon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nIn order to allow EQT Infrastructure II Limited Partnership (“you”), to evaluate a potential negotiated transaction (the “Proposed Transaction”)\nwith Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the “Company”), we may in our discretion furnish to you,\nupon your execution and delivery to us of this letter agreement, certain information about the properties and operations of the Company. As used in\nthis letter agreement, the terms “we” and “us” shall mean Westway Group, Inc., acting through its Board of Directors (the “Board”) or the special\ncommittee of the Board (the “Special Committee”) given the authority to act on behalf of the Board in this regard. All information about the\nCompany furnished by us or our Representatives (as defined below), whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, is referred to in this letter agreement as “Proprietary Information.” Proprietary Information includes\n(i) all notes, analyses, compilations, studies or other documents prepared by you or your Representatives which contain or reflect or are based upon,\nin whole or in part, the information furnished to you or your Representatives pursuant hereto, and (ii) the fact that the Company is considering and\nmay negotiate a Proposed Transaction, the terms or conditions or any other facts relating thereto, the fact that discussions are taking place with\nrespect thereto or the status thereof, the fact that this letter agreement has been executed and the fact that Proprietary Information has been made\navailable to you or your Representatives. Proprietary Information does not include information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by you or your Representatives in breach of this letter agreement, (b) was available to you or your\nRepresentatives on a nonconfidential basis prior to its disclosure by us or our Representatives; provided that the source of such information is not\nknown to you to be bound by a confidentiality agreement with us or any Representative of ours, or is otherwise not under an obligation to us or any\nRepresentative of ours not to transmit the information to you, or (c) becomes available to you or your Representatives on a nonconfidential basis\nfrom a person other than us or our Representatives who is not otherwise known to you to be bound by a confidentiality agreement with us or any\nRepresentative of ours, or is otherwise not under an obligation to us or any Representative of ours not to transmit the information to you. As used in\nthis letter agreement, the term “Representative” means, as to any person, such person’s affiliates, if any, and its and their (or their general partner’s,\nas applicable) directors, officers, employees, managing members, agents and advisors (including, without limitation, financial advisors, counsel and\naccountants), together with the “Representatives” of such Representatives; provided, that your “affiliates” for purposes of this letter agreement shall\ninclude, as applicable, your general partner, manager, the managing members of your general\nEQT Infrastructure II GP B.V., a private company with limited liability (“besloten vennootschap met beperkte aansprakelijkheid”) registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\n1\n1\npartner and the other investment partnerships under common control with you. As used in this letter agreement, the term “person” shall be broadly\ninterpreted to include, without limitation, the media, and any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by us, you agree (a) to keep all Proprietary Information confidential and not to disclose or reveal any\nProprietary Information to any person, including, without limitation, management or operations, other than your Representatives who are\nparticipating in your evaluation of the Proposed Transaction and who, in your reasonable judgment, need to know the Proprietary Information for the\npurpose of evaluating the Proposed Transaction, and who are informed of the confidential nature of the Proprietary Information and who agree to be\nbound by the non-disclosure and use limitation provisions of this letter agreement that are applicable to you, and (b) not to use Proprietary\nInformation, directly or indirectly, for any purpose, including, without limitation, to compete with the Company, other than in connection with your\nevaluation of the Proposed Transaction or the consummation of the Proposed Transaction pursuant to a final definitive agreement with the Company\n(“FDA”). You agree that the dissemination of Proprietary Information within your organization shall be strictly limited to the minimum possible\nnumber of people and only to those persons whose duties require that they know such Proprietary Information for purposes of evaluating the\nProposed Transaction, provided, further, that in no event will you share any of the Proprietary Information, the existence of this letter agreement or\nthe fact that you have received Proprietary Information with any operating management or personnel of any competing business which you operate\nunless you have received our prior written consent to do so.\nYou agree to inform each of your Representatives of the confidential nature of the Proprietary Information and of this letter agreement and to\nuse your reasonable best efforts to cause your Representatives to observe the terms of this letter agreement and not to use the Proprietary Information\nother than in connection with your evaluation of the Proposed Transaction. In any case, you will be responsible for any breach of the terms of this\nletter agreement by you or your Representatives and you agree at your sole expense to take all reasonable measures to restrain its Representatives\nfrom prohibited or unauthorized disclosure or use of Proprietary Information or other breach of this letter agreement.\nIn the event that you are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Proprietary\nInformation or any other information concerning the Company or the Proposed Transaction, you agree that, unless prohibited by applicable law, you\nwill provide us with prompt notice of such request or requirement in order to enable us to seek an appropriate protective order or other remedy, to\nconsult with you with respect to our taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in\npart, with the terms of this letter agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, you are, on the advice of\nyour legal counsel to that effect, legally required to disclose Proprietary Information, you may, after notice to and consultation with us, disclose\nsolely that Proprietary Information which on the advice of legal counsel you are legally required to disclose. In any such event you will use your\nreasonable best efforts (and will reasonably cooperate with us in our efforts) to ensure that such Proprietary Information and other information that is\nso disclosed will be accorded confidential treatment.\nIn the event that you supply to the Company or to us or to any of our subsidiaries any information that you deem to be confidential (“Your\nConfidential Information”) then we agree that as regards Your Confidential Information we shall perform and observe mutatis mutandis the same\nobligations in this letter agreement as apply to you in respect of Proprietary Information and, in addition, that the same rights, benefits and beneficial\nexclusions that we have under this letter agreement shall also apply mutatis mutandis to you.\nYou acknowledge that the Company has the absolute right to determine what Proprietary Information, properties and personnel it wishes to\nmake available to you. During the course of your evaluation, you and your Representatives agree that you will not, directly or indirectly initiate\ncontact for any purpose relating to your\n-2-\nevaluation of the Proposed Transaction with any director, officer, employee, customer or supplier of the Company or any other third party actually\nknown to you to be related to the Company and that you will submit any requests for such contact only to Evercore Group L.L .C., as advisor to the\nCompany. If your evaluation of the Proposed Transaction is terminated by you or the Company, you and your Representatives will permanently\ncease all such contacts for any purposes relating to your evaluation of the Proposed Transaction, whether or not previously authorized.\nYou acknowledge that as of the date hereof, except as disclosed in the Company’s public filings with the Securities and Exchange Commission\nas of the date hereof, neither you nor any of your affiliates beneficially own any securities or rights to acquire any securities of the Company. You\nalso agree that for a period of one year from the date of this letter agreement, neither you nor any of your affiliates will, directly or indirectly, unless\nspecifically invited in writing to do so by the Board or, as appropriate, the Special Committee:\n(a) acquire, offer or seek to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any securities\nor direct or indirect rights to acquire any securities of the Company (except pursuant to a stock split, stock dividend or reclassification), or of any\nsuccessor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling\nperson (but with respect to such controlling person, only with respect to assets relating to the Company);\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote or consent (as such terms are used in the\nrules of the Securities and Exchange Commission), or seek to advise or influence, alone or in concert with others, any person or entity with respect to\nthe voting of, or granting of a consent with respect to, any voting securities of the Company, or seek to control or influence, alone or in concert with\nothers, the management, Board of Directors or policies of the Company; (c) nominate, or seek to nominate, directly or indirectly, any person to the\nBoard of Directors;\n(d) make, effect, initiate, cause or participate in, directly or indirectly, or make any public announcement with respect to, or submit or make a\nproposal for, or offer of (with or without conditions) any merger, business combination, tender or exchange offer, recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction involving the Company or any of its securities or assets;\n(e) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and\nthe rules promulgated thereunder) in connection with any of the foregoing;\n(f) negotiate, discuss, advise, assist or encourage any other person in connection with the foregoing or take any other action intended to, or\nreasonably likely to, force the Company to make a public announcement regarding the types of matters set forth above;\n(g) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of any action referred to in clauses (a) through (e) above;\nor\n(h) request the Company, the Board, the Special Committee or any of the Company’s Representatives, directly or indirectly, to amend, waive\nor consider the amendment or waiver of any provision of this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nIf you determine that you do not wish to proceed with further discussions and negotiations regarding the Proposed Transaction, you will\npromptly advise us of that decision. In that case, or in the event that we, in our sole discretion, so request or the Proposed Transaction is not\nconsummated by you, you will promptly deliver to us or destroy (and deliver to us a certification of such destruction) all Proprietary Information,\nincluding all\n-3-\ncopies, reproductions, electronic records, summaries, analyses or extracts thereof or based thereon in your possession or in the possession of any\nRepresentative of yours. However, you are allowed to keep copies of the Proprietary Information if required in order for you to meet legal\nrequirements and regulations.\nYou agree and acknowledge that the Company reserves the right, in its sole discretion and without any liability to you, to reject any and all\nproposals made by you or any of your Representatives with regard to a transaction between you and the Company and to terminate discussions and\nnegotiations with you at any time. You further agree and acknowledge that (a) the Board of Directors and the Special Committee shall be free to\nconduct the process for the Proposed Transaction as they in their sole discretion shall determine (including, without limitation, negotiating with any\nprospective counterparty and entering into an FDA without prior notice to you or to any other person), (b) any procedures relating to such Proposed\nTransaction may be changed at any time without notice to you or any other person and (c) you shall not have any claims whatsoever against the\nCompany, its Representatives or any of the respective officers, directors, employees, agents or controlling persons of such Representatives arising\nout of, or relating to, a possible transaction involving the Company.\nYou acknowledge that neither the Company nor its Representatives and none of the respective officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the accuracy or completeness of any\nProprietary Information. You agree that neither the Company nor its Representatives shall have any liability to you or any of your Representatives\nrelating to or arising from your or their use of any Proprietary Information or for any errors therein or omissions therefrom. It is understood that the\nscope of any representations and warranties to be given by the Company will be negotiated along with other terms and conditions in arriving at a\nmutually acceptable FDA should discussions between you and the Company progress to such a point. Only those representations and warranties that\nare made in an FDA when, as and if executed and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nYou agree that, without our prior written consent, you will not for a period of two years from the date hereof (the “Non-Solicit Period”)\ndirectly or indirectly cause or encourage any person to solicit for employment or employ any employee who is now employed by us or any of our\nsubsidiaries, including management, sales and technical personnel who is or becomes known to you as a result of your evaluation or otherwise in\nconnection with the Proposed Transaction. It is understood and agreed that the foregoing shall not be deemed to prohibit general solicitations of\nemployment not specifically directed toward employees of the Company; provided that notwithstanding anything contained herein, you will not\nemploy any of the individuals set forth on Exhibit A hereto during the Non-Solicit Period.\nWithout prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy for\nbreach of this letter agreement and that we shall be entitled to obtain equitable relief by way of injunction or otherwise if you or any of your\nRepresentatives breach or threaten to breach any of the provisions of this letter agreement. You further agree to waive any requirement for security or\nposting of any bond in connection with any such equitable remedy.\nIt is further understood and agreed that no failure or delay by either you nor us in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to\ncontracts executed in and to be performed in that state. Any action arising out of or relating to this letter agreement shall be brought exclusively in\nthe state or federal courts sitting in the District of Delaware which we and you agree is a convenient forum.\nAny assignment of this letter agreement by you without our prior written consent shall be void.\n-4-\nThis letter agreement contains the entire agreement between you and us concerning the subject matter hereof, and no modification of this letter\nagreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless approved in writing by each of you and us. You\nacknowledge that the Board of Directors or Special Committee may condition your continued receipt of Proprietary Information on you entering into\nan amended or new confidentiality agreement. Any such new agreement shall supercede this letter agreement to the extent provided therein. The\nprovisions of the FDA may supersede this letter agreement and any such new agreement to the extent specifically set forth in the FDA.\nYou acknowledge that you are aware, and that you will advise your Representatives who receive Proprietary Information or otherwise are\ninformed as to the matters that are the subject matter of this letter agreement, of your and their obligations under the United States securities laws.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\n-5-\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J . Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J . Hedeman Joosten\nName: M.H .J . Hedeman Joosten\nTitle: Director\nExhibit A\nCorporate:\nJames Jenkins, Chief Executive Officer\nThomas Masilla Jr., Chief Financial Officer and Secretary\nWade Blanchard, Vice President, European Health, Safety, Environmental, and Quality (“HSEQ”)\nChad Saltzman, Corporate Controller\nGrayson Marloff\nJoe Roussell\nHuman Resources:\nMarie O’Donnell\nInformation Technology:\nPeter Griffiths\nRakesh Bhansali\nWestway Feed Products LLC:\nSteve Boehmer, President\nDr. Joe Harris, Executive Vice President\nBill Anderson, Director of Business Development\nMike Strobel, Director of Operations\nWillie Hayes, Director of Sales\nJerry Stephenson, National Accts. Manager\nRob Barrigan\nWestway Terminal Company LLC:\nGene McClain, President\nBert van Holst, European Operations Director\nRobbie Johnson, VP of Operations and Engineering\nMark O’Donnell, Regional Sales Manager\nSteven Palm, Regional Sales Manager\nBill Johnston, Regional Manager\nBrian Kleczkowski, Regional Manager\nDino DeLuca, Regional Manager\nJennifer Montz\nEtienne Mostertman\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nNovember 7, 2012\nEQT Infrastructure II GP B.V.\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention:\nDêon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nReference is hereby made to the letter agreement (the “Letter Agreement”), dated October 30, 2012, by and between EQT Infrastructure II\nLimited Partnership (“you”) and Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the “Company”). As used herein,\nthe terms “we” and “us” shall mean Westway Group, Inc., acting through its Board of Directors (the “Board”) or the special committee of the Board\n(the “Special Committee”) given the authority to act on behalf of the Board in this regard.\nThe parties hereto agree that, for purposes of the Letter Agreement, the term “Representatives” therein shall mean, as to any person, such\nperson’s affiliates, if any, and its and their (or their general partner’s, as applicable) directors, officers, employees, managing members, agents and\nadvisors (including, without limitation, financial advisors, potential sources of debt financing, counsel and accountants), together with the\n“Representatives” of such Representatives.\nExcept as expressly provided herein, all other terms and provisions of the Letter Agreement shall remain in full force and effect.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\nEQT Infrastructure II GP B.V., a private company with limited liability (“besloten vennootschap met beperkte aansprakelijkheid”) registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\n1\n1\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J . Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J . Hedeman Joosten\nName: M.H .J . Hedeman Joosten\nTitle: Director
6542d2bf40e9b59abc61ad5ed7644852.pdf	effective_date jurisdiction party term	EX-10.9 4 ex10_9.txt NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE\nAGREEMENT PARTIES: Mark G. Parker (EMPLOYEE) NIKE, Inc., an Oregon corporation, and its divisions,\nsubsidiaries and affiliates (NIKE) DATE: October 6, 1994 RECITALS: A. This Covenant Not to Compete is executed\nupon the EMPLOYEE's assumption of additional responsibilities for worldwide marketing and development activities of\nNIKE. B. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nin a position to generate confidential information including but not limited to confidential techniques, methods, styles,\ndesigns and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data\nrelating to processes, products, machines, compounds and compositions, formulae, lasts and molds. It is anticipated that\nEMPLOYEE will continue to be exposed to confidential information, will be exposed to more confidential information\nand to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and\ndisclosure of any confidential information would result in severe damage to NIKE and be difficult to measure. C . NIKE\nmakes use of the confidential information described in paragraph B above throughout the world. This confidential\ninformation of NIKE can be used to NIKE's detriment anywhere in the world. D. The provisions of this Covenant Not to\nCompete and Non-Disclosure Agreement are a condition of EMPLOYEE's employment advancement with NIKE. E.\nThe provisions of this Covenant Not to Compete and Non-Disclosure Agreement are reasonable. AGREEMENTS: 1.\nCOVENANT NOT TO COMPETE. During the period of time EMPLOYEE is employed by NIKE, under the terms of\nany employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own,\nmanage, operate, join, control, or participate in the ownership, management, operation or control of, or be employed by\nor connected in any manner with, any business engaged anywhere in the world in the athletic footwear business, athletic\napparel business, or any other business which directly competes with NIKE or any of its subsidiaries or affiliated\ncorporations. This provision is (a) subject to NIKE's option to waive, but only with the concurrence of the EMPLOYEE,\nall or any portion of the one (1) year time period of non-competition following termination more specifically provided\nfor in paragraph 2; and (b) subject to NIKE's option to specifically identify, at the time of termination, those businesses\nwhich EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in\ngood faith in its exercise of the above-noted options. 2. ADDITIONAL CONSIDERATION. a . As additional\nconsideration for the covenant not to compete described in paragraph 1 above, it is agreed that: (i) If EMPLOYEE\nvoluntarily leaves the employ of NIKE at any time during the term hereof, NIKE shall pay EMPLOYEE an amount per\nmonth equal to one-twenty-fourth (1/24) of EMPLOYEE's then current "Annual NIKE Income" (defined herein to mean\nbase salary and bonuses received by EMPLOYEE during the twelve (12) month period immediately preceding\ntermination), or $20,833.34 per month, whichever is greater, for the one (1) year period of non- competition following\nvoluntary termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily\nterminated by NIKE at any time during the term hereof, either with or without cause, NIKE shall pay EMPLOYEE an\namount per month equal to one-twelfth (1/12) of EMPLOYEE's then current Annual NIKE Income, or $41,666.67 per\nmonth, whichever is greater, for the one (1) year period of non-competition following involuntary termination of\nemployment, payable on the first day of each month. b. NIKE may waive all or any portion of the one (1) year period of\nnon-competition following termination, subject to the following provisions: (i) At any time during, or prior to the\ncommencement of, the one (1) year period, NIKE may tender to EMPLOYEE thirty (30) days written notice of its desire\nto waive all or the then remaining portion of the one (1) year period of non-competition. Within the thirty (30) day notice\nperiod, EMPLOYEE will have the option of accepting or rejecting NIKE's tender by advising NIKE in writing of\nEMPLOYEE's election to accept the waiver, in which event EMPLOYEE would be free to compete at the end of the\nthirty (30) day notice period and all payments to EMPLOYEE hereunder would cease, or to reject the waiver, in which\nevent EMPLOYEE would continue to be prohibited from competing for the remaining portion of the one (1) year period\nof non- competition and payments to EMPLOYEE would continue as herein provided. (ii) However, notwithstanding\nanything contained in subparagraph 2(b)(i) above, if EMPLOYEE is terminated by NIKE "for cause" (defined herein to\ninclude only continual and repeated neglect of duties and dishonesty) NIKE shall have the unqualified right to waive,\nwithout EMPLOYEE's consent, all or any portion of the one (1) year period of non-competition following termination,\nby giving EMPLOYEE written notice of such election not less than thirty (30) days prior to the effective date of the\nwaiver. In that event, NIKE shall not be obligated to pay EMPLOYEE hereunder for any months as to which the\ncovenant not to compete has been waived. 3. LESSER RESTRICTIONS . Should any of the terms of paragraphs 1 and 2\nabove be found unreasonable or invalid by any court of competent jurisdiction, the parties agree to accept as binding, in\nlieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME. The covenant not to compete described\nin paragraphs 1, 2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the\nobligations hereunder during which EMPLOYEE engaged in activities violating the covenant not to compete. 5. NON-\nDISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter, EMPLOYEE will\nhold in confidence all information of a confidential nature, including but not limited to the information described in\nRecital "B", (all of which information of a confidential nature shall hereinafter be referred to as "confidential\ninformation") and will not, any time, directly or indirectly, use any confidential information for any purpose outside the\nscope of EMPLOYEE's employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any confidential\ninformation without the prior written consent of NIKE. 6. RETURN OF CONFIDENTIAL INFORMATION. Upon\ntermination and upon written request by NIKE at any time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in\nEMPLOYEE's possession, whether prepared by EMPLOYEE or others, and deliver to NIKE any and all other\nconfidential information, in whatever form, that may be in EMPLOYEE's possession or under EMPLOYEE's control. 7.\nUNAUTHORIZED USE. During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE\nimmediately of the unauthorized possession, use or knowledge of any confidential information by any person employed\nor not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE shall promptly furnish details\nof such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such possession, use or\nknowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect\nthe confidential information. EMPLOYEE's compliance with this paragraph shall not be construed in any way as a\nwaiver of any of NIKE's rights or remedies against EMPLOYEE arising out of or related to such unauthorized\npossession, use or knowledge. 8. INJUNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not to\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete\nwith NIKE in order to protect NIKE from unfair use of the confidential information. NIKE shall be entitled to injunctive\nrelief in addition to any other remedy it may have. A breach of this Covenant Not to Compete and Non-Disclosure\nAgreement during the period of EMPLOYEE's employment in addition to any other rights or remedies NIKE may have.\n9. WAIVER, AMENDMENT, MODIFICATION OR CANCELLATION. No waiver, amendment, modification or\ncancellation of any term or condition of this Covenant Not to Compete and Non-Disclosure Agreement shall be effective\nunless executed in writing by the party charged therewith. No written waiver shall excuse the performance of any act\nother than the act or acts specifically referred to therein. 10. APPLICABLE LAW/JURISDICTION/VENUE. This\nCovenant Not to Compete and Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon and EMPLOYEE hereby submits to the jurisdiction of the courts\nof the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE's\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be\nbrought in a court located in Washington County, Oregon. EMPLOYEE NIKE, Inc. By: /s/ Mark G. Parker By: /s/ Philip\nH. Knight _______________________ _________________________ Name: Mark G. Parker Name: Philip H. Knight	EX-10.9 4 ex10_9.txt NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE\nAGREEMENT PARTIES: Mark G. Parker (EMPLOYEE) NIKE, Inc., an Oregon corporation, and its divisions,\nsubsidiaries and affiliates (NIKE) DATE: October 6, 1994 RECITALS: A. This Covenant Not to Compete is executed\nupon the EMPLOYEE's assumption of additional responsibilities for worldwide marketing and development activities of\nNIKE. B. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nin a position to generate confidential information including but not limited to confidential techniques, methods, styles,\ndesigns and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data\nrelating to processes, products, machines, compounds and compositions, formulae, lasts and molds. It is anticipated that\nEMPLOYEE will continue to be exposed to confidential information, will be exposed to more confidential information\nand to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and\ndisclosure of any confidential information would result in severe damage to NIKE and be difficult to measure. C. NIKE\nmakes use of the confidential information described in paragraph B above throughout the world. This confidential\ninformation of NIKE can be used to NIKE's detriment anywhere in the world. D. The provisions of this Covenant Not to\nCompete and Non-Disclosure Agreement are a condition of EMPLOYEE's employment advancement with NIKE. E.\nThe provisions of this Covenant Not to Compete and Non-Disclosure Agreement are reasonable. AGREEMENTS: 1.\nCOVENANT NOT TO COMPETE. During the period of time EMPLOYEE is employed by NIKE, under the terms of\nany employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own,\nmanage, operate, join, control, or participate in the ownership, management, operation or control of, or be employed by\nor connected in any manner with, any business engaged anywhere in the world in the athletic footwear business, athletic\napparel business, or any other business which directly competes with NIKE or any of its subsidiaries or affiliated\ncorporations. This provision is (a) subject to NIKE's option to waive, but only with the concurrence of the EMPLOYEE,\nall or any portion of the one (1) year time period of non-competition following termination more specifically provided\nfor in paragraph 2; and (b) subject to NIKE's option to specifically identify, at the time of termination, those businesses\nwhich EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in\ngood faith in its exercise of the above-noted options. 2. ADDITIONAL CONSIDERATION. a. As additional\nconsideration for the covenant not to compete described in paragraph 1 above, it is agreed that: (i) If EMPLOYEE\nvoluntarily leaves the employ of NIKE at any time during the term hereof, NIKE shall pay EMPLOYEE an amount per\nmonth equal to one-twenty-fourth (1/24) of EMPLOYEE's then current "Annual NIKE Income" (defined herein to mean\nbase salary and bonuses received by EMPLOYEE during the twelve (12) month period immediately preceding\ntermination), or $20,833.34 per month, whichever is greater, for the one (1) year period of non- competition following\nvoluntary termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily\nterminated by NIKE at any time during the term hereof, either with or without cause, NIKE shall pay EMPLOYEE an\namount per month equal to one-twelfth (1/12) of EMPLOYEE's then current Annual NIKE Income, or $41,666.67 per\nmonth, whichever is greater, for the one (1) year period of non-competition following involuntary termination of\nemployment, payable on the first day of each month. b. NIKE may waive all or any portion of the one (1) year period of\nnon-competition following termination, subject to the following provisions: (i) At any time during, or prior to the\ncommencement of, the one (1) year period, NIKE may tender to EMPLOYEE thirty (30) days written notice of its desire\nto waive all or the then remaining portion of the one (1) year period of non-competition. Within the thirty (30) day notice\nperiod, EMPLOYEE will have the option of accepting or rejecting NIKE's tender by advising NIKE in writing of\nEMPLOYEE's election to accept the waiver, in which event EMPLOYEE would be free to compete at the end of the\nthirty (30) day notice period and all payments to EMPLOYEE hereunder would cease, or to reject the waiver, in which\nevent EMPLOYEE would continue to be prohibited from competing for the remaining portion of the one (1) year period\nof non- competition and payments to EMPLOYEE would continue as herein provided. (ii) However, notwithstanding\nanything contained in subparagraph 2(b)(i) above, if EMPLOYEE is terminated by NIKE "for cause" (defined herein to\ninclude only continual and repeated neglect of duties and dishonesty) NIKE shall have the unqualified right to waive,\nwithout EMPLOYEE's consent, all or any portion of the one (1) year period of non-competition following termination,\nby giving EMPLOYEE written notice of such election not less than thirty (30) days prior to the effective date of the\nwaiver. In that event, NIKE shall not be obligated to pay EMPLOYEE hereunder for any months as to which the\ncovenant not to compete has been waived. 3. LESSER RESTRICTIONS. Should any of the terms of paragraphs 1 and 2\nabove be found unreasonable or invalid by any court of competent jurisdiction, the parties agree to accept as binding, in\nlieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME. The covenant not to compete described\nin paragraphs 1, 2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the\nobligations hereunder during which EMPLOYEE engaged in activities violating the covenant not to compete. 5. NON-\nDISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter, EMPLOYEE will\nhold in confidence all information of a confidential nature, including but not limited to the information described in\nRecital "B", (all of which information of a confidential nature shall hereinafter be referred to as "confidential\ninformation") and will not, any time, directly or indirectly, use any confidential information for any purpose outside the\nscope of EMPLOYEE's employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any confidential\ninformation without the prior written consent of NIKE. 6. RETURN OF CONFIDENTIAL INFORMATION. Upon\ntermination and upon written request by NIKE at any time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in\nEMPLOYEE's possession, whether prepared by EMPLOYEE or others, and deliver to NIKE any and all other\nconfidential information, in whatever form, that may be in EMPLOYEE's possession or under EMPLOYEE's control. 7.\nUNAUTHORIZED USE. During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE\nimmediately of the unauthorized possession, use or knowledge of any confidential information by any person employed\nor not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE shall promptly furnish details\nof such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such possession, use or\nknowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect\nthe confidential information. EMPLOYEE's compliance with this paragraph shall not be construed in any way as a\nwaiver of any of NIKE's rights or remedies against EMPLOYEE arising out of or related to such unauthorized\npossession, use or knowledge. 8. INJUNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not to\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete\nwith NIKE in order to protect NIKE from unfair use of the confidential information. NIKE shall be entitled to injunctive\nrelief in addition to any other remedy it may have. A breach of this Covenant Not to Compete and Non-Disclosure\nAgreement during the period of EMPLOYEE's employment in addition to any other rights or remedies NIKE may have.\n9. WAIVER, AMENDMENT, MODIFICATION OR CANCELLATION. No waiver, amendment, modification or\ncancellation of any term or condition of this Covenant Not to Compete and Non-Disclosure Agreement shall be effective\nunless executed in writing by the party charged therewith. No written waiver shall excuse the performance of any act\nother than the act or acts specifically referred to therein. 10. APPLICABLE LAW/JURISDICTION/VENUE. This\nCovenant Not to Compete and Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon and EMPLOYEE hereby submits to the jurisdiction of the courts\nof the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE's\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be\nbrought in a court located in Washington County, Oregon. EMPLOYEE NIKE, Inc. By: /s/ Mark G. Parker By: /s/ Philip\nH. Knight Name: Mark G. Parker Name: Philip H. Knight	EX-10.9 4 x10 9.txt NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE\nAGREEMENT PARTIES: Mark G. Parker (EMPLOYEE) NIKE, Inc., an Oregon corporation, and its divisions,\nsubsidiaries and affiliates (NIKE) DATE: October 6, 1994 RECITALS: A. This Covenant Not to Compete is executed\nupon the EMPLOYEE's assumption of additional responsibilities for worldwide marketing and development activities of\nNIKE. B. Over the course of EMPLOYEE'S employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nin a position to generate confidential information including but not limited to confidential techniques, methods, styles,\ndesigns and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data\nrelating to processes, products, machines, compounds and compositions, formulae, lasts and molds. It is anticipated that\nEMPLOYEE will continue to be exposed to confidential information, will be exposed to more confidential information\nand to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and\ndisclosure of any confidential information would result in severe damage to NIKE and be difficult to measure.\nC.\nNIKE\nmakes use of the confidential information described in paragraph B above throughout the world. This confidential\ninformation of NIKE can be used to NIKE's detriment anywhere in the world. D. The provisions of this Covenant Not\nto\nCompete and Non-Disclosure Agreement are a condition of EMPLOYEE'S employmen advancement with NIKE. E.\nThe provisions of this Covenant Not to Compete and Non-Disclosure Agreement are reasonable. AGREEMENTS: 1.\nCOVENANT NOT TO COMPETE. During the period of time EMPLOYEE is employed by NIKE, under\nthe\nterms\nof\nany employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own,\nmanage, operate, join, control, or participate in the ownership, management, operation or control of, or be employed by\nor connected in any manner with, any business engaged anywhere in the world in the athletic footwear business, athletic\napparel business, or any other business which directly competes with NIKE or any of its subsidiaries or affiliated\ncorporations. This provision is (a) subject to NIKE's option to waive, but only with the concurrence of the EMPLOYEE,\nall or any portion of the one (1) year time period of non-competition following termination more specifically provided\nfor in paragraph 2; and (b) subject to NIKE's option to specifically identify, at the time of termination, those businesses\nwhich EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in\ngood faith in its exercise of the above-noted options. 2. ADDITIONAL CONSIDERATION. a. As additional\nconsideration for the covenant not to compete described in paragraph 1 above, it is agreed that: (i) If EMPLOYEE\nvoluntarily leaves the employ of NIKE at any time during the term hereof, NIKE shall pay EMPLOYEE an amount per\nmonth equal to one-twenty-fourth (1/24) of EMPLOYEE'S then current "Annual NIKE Income" (defined herein to mean\nbase salary and bonuses received by EMPLOYEE during the twelve (12) month period immediately preceding\ntermination), or $20,833.34 per month, whichever is greater, for the one (1) year period of non- competition following\nvoluntary termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily\nterminated by NIKE at any time during the term hereof, either with or without cause, NIKE shall pay EMPLOYEE an\namount per month equal to one-twelfth (1/12) of EMPLOYEE'S then current Annual NIKE Income, or $41,666.67 per\nmonth, whichever is greater, for the one (1) year period of non-competition following involuntary termination of\nemployment, payable on the first day of each month. b. NIKE may waive all or any portion of the one (1) year period of\nnon-competition following termination, subject to the following provisions: (i) At any time during, or prior to the\ncommencement of, the one (1) year period, NIKE may tender to EMPLOYEE thirty (30) days written notice of its desire\nto waive all or the then remaining portion of the one (1) year period of non-competition. Within the thirty (30) day notice\nperiod, EMPLOYEE will have the option of accepting or rejecting NIKE's tender by advising NIKE in writing of\nEMPLOYEE'S election to accept the waiver, in which event EMPLOYEE would be free to compete at the end of the\nthirty (30) day notice period and all payments to EMPLOYEE hereunder would cease, or to reject the waiver, in which\nevent EMPLOYEE would continue to be prohibited from competing for the remaining portion of the one (1) year period\nof competition and payments to EMPLOYEE would continue as herein provided. (ii) However, notwithstanding\nanything contained in subparagraph 2(b)(i) above, if EMPLOYEE is terminated by NIKE "for cause" (defined herein to\ninclude only continual and repeated neglect of duties and dishonesty) NIKE shall have the unqualified right to waive,\nwithout EMPLOYEE'S consent, all or any portion of the one (1) year period of non-competition following termination,\nby\ngiving\nEMPLOYEE written notice of such election not less than thirty (30) days prior to the effective date of the\nwaiver. In that event, NIKE shall not be obligated to pay EMPLOYEE hereunder for any months as to which the\ncovenant not to compete has been waived. 3. LESSER RESTRICTIONS Should any of the terms of paragraphs 1 and 2\nabove be found unreasonable or invalid by any court of competent jurisdiction, the parties agree to accept as binding, in\nlieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME. The covenant not to compete described\nin paragraphs 1, 2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the\nobligations hereunder during which EMPLOYEE engaged in activities violating the covenant not to compete. 5. NON-\nDISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter, EMPLOYEE will\nhold in confidence all information of a confidential nature, including but not limited to the information described in\nRecital "B", (all of which information of a confidential nature shall hereinafter be referred to as "confidential\ninformation") and will not, any time, directly or indirectly, use any confidential information for any purpose outside\nthe\nscope of EMPLOYEE's employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any confidential\ninformation without the prior written consent of NIKE. 6. RETURN OF CONFIDENTIAL INFORMATION Upon\ntermination\nand\nupon\nwritten\nrequest\nby\nNIKE\nat\nany\ntime,\nEMPLOYEE\nshall\nreturn\nto\nNIKE\nall\ndocuments,\nrecords,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in\nEMPLOYEE'S possession, whether prepared by EMPLOYEE or others, and deliver to NIKE any and all other\nconfidential information, in whatever form, that may be in EMPLOYEE's possession or under EMPLOYEE's control. 7.\nUNAUTHORIZED USE. During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE\nimmediately of the unauthorized possession, use or knowledge of any confidential information by any person employed\nor not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE shall promptly furnish details\nof such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such possession, use or\nknowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect\nthe confidential information. EMPLOYEE'S compliance with this paragraph shall not be construed in any way as a\nwaiver of any of NIKE's rights or remedies against EMPLOYEE arising out of or related to such unauthorized\npossession, use or knowledge. 8. INJUNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not to\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete\nwith\nNIKE\nin\norder\nto\nprotect\nNIKE\nfrom\nunfair\nuse\nof\nthe\nconfidential\ninformation.\nNIKE\nshall\nbe\nentitled\nto\ninjunctive\nrelief in addition to any other remedy it may have. A breach of this Covenant Not to Compete and Non-Disclosure\nAgreement during the period of EMPLOYEE'S employment in addition to any other rights or remedies NIKE may have.\n9. WAIVER, AMENDMENT, MODIFICATION OR CANCELLATION. No waiver, amendment, modification or\ncancellation of any term or condition of this Covenant Not to Compete and Non-Disclosure Agreement shall be effective\nunless executed in writing by the party charged therewith. No written waiver shall excuse the performance of any act\nother than the act or acts specifically referred to therein. 10. APPLICABLE LAWIJURISDICTION/VENUE. This\nCovenant Not to Compete and Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon and EMPLOYEE hereby submits to the jurisdiction of the courts\nof the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE's\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be\nbrought in a court located in Washington County, Oregon. EMPLOYEE NIKE, Inc. By: /s/ Mark G. Parker By: /s/ Philip\nH. Knight Name: Mark G. Parker Name: Philip H. Knight	EX-10.9 4 ex10_9.txt NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE\nAGREEMENT PARTIES: Mark G. Parker (EMPLOYEE) NIKE, Inc., an Oregon corporation, and its divisions,\nsubsidiaries and affiliates (NIKE) DATE: October 6, 1994 RECITALS: A. This Covenant Not to Compete is executed\nupon the EMPLOYEE's assumption of additional responsibilities for worldwide marketing and development activities of\nNIKE. B. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nin a position to generate confidential information including but not limited to confidential techniques, methods, styles,\ndesigns and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data\nrelating to processes, products, machines, compounds and compositions, formulae, lasts and molds. It is anticipated that\nEMPLOYEE will continue to be exposed to confidential information, will be exposed to more confidential information\nand to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and\ndisclosure of any confidential information would result in severe damage to NIKE and be difficult to measure. C . NIKE\nmakes use of the confidential information described in paragraph B above throughout the world. This confidential\ninformation of NIKE can be used to NIKE's detriment anywhere in the world. D. The provisions of this Covenant Not to\nCompete and Non-Disclosure Agreement are a condition of EMPLOYEE's employment advancement with NIKE. E.\nThe provisions of this Covenant Not to Compete and Non-Disclosure Agreement are reasonable. AGREEMENTS: 1.\nCOVENANT NOT TO COMPETE. During the period of time EMPLOYEE is employed by NIKE, under the terms of\nany employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own,\nmanage, operate, join, control, or participate in the ownership, management, operation or control of, or be employed by\nor connected in any manner with, any business engaged anywhere in the world in the athletic footwear business, athletic\napparel business, or any other business which directly competes with NIKE or any of its subsidiaries or affiliated\ncorporations. This provision is (a) subject to NIKE's option to waive, but only with the concurrence of the EMPLOYEE,\nall or any portion of the one (1) year time period of non-competition following termination more specifically provided\nfor in paragraph 2; and (b) subject to NIKE's option to specifically identify, at the time of termination, those businesses\nwhich EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in\ngood faith in its exercise of the above-noted options. 2. ADDITIONAL CONSIDERATION. a . As additional\nconsideration for the covenant not to compete described in paragraph 1 above, it is agreed that: (i) If EMPLOYEE\nvoluntarily leaves the employ of NIKE at any time during the term hereof, NIKE shall pay EMPLOYEE an amount per\nmonth equal to one-twenty-fourth (1/24) of EMPLOYEE's then current "Annual NIKE Income" (defined herein to mean\nbase salary and bonuses received by EMPLOYEE during the twelve (12) month period immediately preceding\ntermination), or $20,833.34 per month, whichever is greater, for the one (1) year period of non- competition following\nvoluntary termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily\nterminated by NIKE at any time during the term hereof, either with or without cause, NIKE shall pay EMPLOYEE an\namount per month equal to one-twelfth (1/12) of EMPLOYEE's then current Annual NIKE Income, or $41,666.67 per\nmonth, whichever is greater, for the one (1) year period of non-competition following involuntary termination of\nemployment, payable on the first day of each month. b. NIKE may waive all or any portion of the one (1) year period of\nnon-competition following termination, subject to the following provisions: (i) At any time during, or prior to the\ncommencement of, the one (1) year period, NIKE may tender to EMPLOYEE thirty (30) days written notice of its desire\nto waive all or the then remaining portion of the one (1) year period of non-competition. Within the thirty (30) day notice\nperiod, EMPLOYEE will have the option of accepting or rejecting NIKE's tender by advising NIKE in writing of\nEMPLOYEE's election to accept the waiver, in which event EMPLOYEE would be free to compete at the end of the\nthirty (30) day notice period and all payments to EMPLOYEE hereunder would cease, or to reject the waiver, in which\nevent EMPLOYEE would continue to be prohibited from competing for the remaining portion of the one (1) year period\nof non- competition and payments to EMPLOYEE would continue as herein provided. (ii) However, notwithstanding\nanything contained in subparagraph 2(b)(i) above, if EMPLOYEE is terminated by NIKE "for cause" (defined herein to\ninclude only continual and repeated neglect of duties and dishonesty) NIKE shall have the unqualified right to waive,\nwithout EMPLOYEE's consent, all or any portion of the one (1) year period of non-competition following termination,\nby giving EMPLOYEE written notice of such election not less than thirty (30) days prior to the effective date of the\nwaiver. In that event, NIKE shall not be obligated to pay EMPLOYEE hereunder for any months as to which the\ncovenant not to compete has been waived. 3. LESSER RESTRICTIONS . Should any of the terms of paragraphs 1 and 2\nabove be found unreasonable or invalid by any court of competent jurisdiction, the parties agree to accept as binding, in\nlieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME. The covenant not to compete described\nin paragraphs 1, 2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the\nobligations hereunder during which EMPLOYEE engaged in activities violating the covenant not to compete. 5. NON-\nDISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter, EMPLOYEE will\nhold in confidence all information of a confidential nature, including but not limited to the information described in\nRecital "B", (all of which information of a confidential nature shall hereinafter be referred to as "confidential\ninformation") and will not, any time, directly or indirectly, use any confidential information for any purpose outside the\nscope of EMPLOYEE's employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any confidential\ninformation without the prior written consent of NIKE. 6. RETURN OF CONFIDENTIAL INFORMATION. Upon\ntermination and upon written request by NIKE at any time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in\nEMPLOYEE's possession, whether prepared by EMPLOYEE or others, and deliver to NIKE any and all other\nconfidential information, in whatever form, that may be in EMPLOYEE's possession or under EMPLOYEE's control. 7.\nUNAUTHORIZED USE. During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE\nimmediately of the unauthorized possession, use or knowledge of any confidential information by any person employed\nor not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE shall promptly furnish details\nof such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such possession, use or\nknowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect\nthe confidential information. EMPLOYEE's compliance with this paragraph shall not be construed in any way as a\nwaiver of any of NIKE's rights or remedies against EMPLOYEE arising out of or related to such unauthorized\npossession, use or knowledge. 8. INJUNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not to\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete\nwith NIKE in order to protect NIKE from unfair use of the confidential information. NIKE shall be entitled to injunctive\nrelief in addition to any other remedy it may have. A breach of this Covenant Not to Compete and Non-Disclosure\nAgreement during the period of EMPLOYEE's employment in addition to any other rights or remedies NIKE may have.\n9. WAIVER, AMENDMENT, MODIFICATION OR CANCELLATION. No waiver, amendment, modification or\ncancellation of any term or condition of this Covenant Not to Compete and Non-Disclosure Agreement shall be effective\nunless executed in writing by the party charged therewith. No written waiver shall excuse the performance of any act\nother than the act or acts specifically referred to therein. 10. APPLICABLE LAW/JURISDICTION/VENUE. This\nCovenant Not to Compete and Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon and EMPLOYEE hereby submits to the jurisdiction of the courts\nof the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE's\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be\nbrought in a court located in Washington County, Oregon. EMPLOYEE NIKE, Inc. By: /s/ Mark G. Parker By: /s/ Philip\nH. Knight _______________________ _________________________ Name: Mark G. Parker Name: Philip H. Knight
6750684aa13cb781eddb8f6fd9238e07.pdf	effective_date jurisdiction party term	EX-10.42 4 dex1042.htm EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE\nAGREEMENT\nEXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT (“Agreement”) is made as\nof the date set forth on the signature page below between Inspire Pharmaceuticals, Inc. (“Inspire”), and the person whose name is set forth on the\nsignature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by Inspire, with the intention that this Agreement shall apply to the\nentire period of Employee’s employment with Inspire (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. “Confidential Information” means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs,\ndrawings, specifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances,\nchemical compounds, subcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or\nrelating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective customers, the nature\nof work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and\ndevelopment plans, pricing or pricing policies, financial information, plans for further development, and any other information of a similar nature not\navailable to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from\nthe Company, as evidenced by the then existing publication or other public dissemination of such information in written or other documentary form;\n(b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to\nan obligation of confidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having\ncompetent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the Company a\nreasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee’s employment\nwith Inspire, Employee has had or will have access to Confidential Information of Inspire. Therefore, Employee agrees that both during and after the\nperiod of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal,\nreport, publish, disclose or transfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire\nfor any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee’s employment\nwith Inspire, Employee may have had or will\n-1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-\ndisclosure agreement between Inspire and such third party. Therefore, Employee agrees that both during and after the period of Employee’s\nemployment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose\nor transfer any Confidential Information of such third parties to any person or entity, or (b) use any Confidential Information of such third parties for\nany purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for Inspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records, whether printed, typed, handwritten, videotaped, transmitted or transcribed on data\nfiles or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made\navailable to Employee, during the period of Employee employment with Inspire (including the period prior to the date of this Agreement) concerning\nInspire’s Confidential Information are and shall remain Inspire’s property and shall be delivered to Inspire within five (5) business days after the\ntermination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential\nInformation, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement),\nor which Employee may later make, conceive or develop, during the period of Employee’s employment with Inspire, which pertain to or relate to\nInspire’s business or any of the work or businesses carried on by Inspire (“Inventions”). This covenant applies to all such Inventions, whether or not\nthey are eligible for patent, copyright, trademark, trade secret or other legal protection; and whether or not they are conceived and/or developed by\nEmployee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are\nconceived and/or developed at Inspire’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with Inspire, a\ncomplete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for\npurposes of this Agreement, whether or not fixed in a tangible medium of expression. Employee hereby assigns all Employee’s rights in all\nInventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting the\nforegoing, Employee agrees that any copyrightable material shall be deemed to be “works made for hire” and that Inspire shall be deemed the author\nof such works under the United States Copyright Act, provided that in the event and to the extent such works are determined not to constitute “works\nmade for hire”, Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n-2-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee’s employment with Inspire, at Inspire’s sole\nexpense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions.\nEmployee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all\nInventions against infringement by others. Employee hereby appoints the Secretary of Inspire as Employee’s attorney-in-fact to execute documents\non Employee’s behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s\nemployment with Inspire.\n7. COVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with Inspire, employed in the discovery or\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section\n7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and\nknowledge of any Confidential Information would substantially and irreparably injure Inspire’s business, prospects and good will. Employee and\nInspire also agree that Inspire’s business is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees\nthat during the period of Employee’s employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly,\nthrough any other person, firm, corporation or other entity (whether as an officer, director, employee, partner, consultant, holder of equity or debt\ninvestment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g., same receptors (such as P2Y), same mechanism of action (such as mucociliary clearance)) as those being developed,\noffered or sold by Inspire on the date of the termination of Employee’s employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or\nconsulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any\nconsultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as or\nsimilar to the name of Inspire or any trade name used by Inspire.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly\nrequired for the adequate protection of Inspire’s business. In the event that any such geographic, activity or time limitation is deemed to be\nunreasonable by a court, Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall\ndeem reasonable. In the event that Employee is in violation of the aforementioned restrictive covenants, then the time limitation thereof shall be\nextended for a period of time equal to the pendency of such proceedings, including appeals.\n-3-\n8. REPRESENTATIONS. Employee represents that Employee has the right to enter into this Agreement, and that Employee’s performance of all the\nterms of this Agreement and his duties as an employee of Inspire will not breach any confidential information agreement, non-competition\nagreement or other agreement with any former employer of his services, either as an employee, consultant, contractor or independent contractor, or\nwith any other party. Employee represents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of\nany third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any\nof Employee’s future employers, of the terms of this Agreement and Employee’s responsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach\nor threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to Inspire at law or in equity, Inspire shall\nbe entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. NO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant by Inspire to the employee of any license or other right under any patent, patent application or other intellectual property right or interest\nbelonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be\ndetermined to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable\nprovision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or\ncovenant hereunder or under any other agreement or understanding between Employee and Inspire.\n13. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS\nTHIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE\n-4-\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE’S\nPERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS UNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE\nEMPLOYEE’S EMPLOYMENT WITH INSPIRE FOR ANY REASON.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nINSPIRE PHARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy: /s/ Christy L. Shaffer\nChristy L. Shaffer, Ph.D.,\nChief Executive Officer\nEMPLOYEE: Barry G. Pea\n(Print Name)\n/s/ Barry G. Pea\n(Signature Here)\nDate:\n10/11/04\nAddress: 137 New Castle Drive\nChapel Hill, NC 27517\n-5-\nSCHEDULE A\nPRIOR INVENTIONS\n-6-	EX-10.42 4 dex1042.htm EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE\nAGREEMENT\nEXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT (“Agreement”) is made as\nof the date set forth on the signature page below between Inspire Pharmaceuticals, Inc. (“Inspire”), and the person whose name is set forth on the\nsignature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by Inspire, with the intention that this Agreement shall apply to the\nentire period of Employee’s employment with Inspire (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. “Confidential Information” means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs,\ndrawings, specifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances,\nchemical compounds, subcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or\nrelating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective customers, the nature\nof work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and\ndevelopment plans, pricing or pricing policies, financial information, plans for further development, and any other information of a similar nature not\navailable to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from\nthe Company, as evidenced by the then existing publication or other public dissemination of such information in written or other documentary form;\n(b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to\nan obligation of confidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having\ncompetent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the Company a\nreasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee’s employment\nwith Inspire, Employee has had or will have access to Confidential Information of Inspire. Therefore, Employee agrees that both during and after the\nperiod of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal,\nreport, publish, disclose or transfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire\nfor any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee’s employment\nwith Inspire, Employee may have had or will\n1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-\ndisclosure agreement between Inspire and such third party. Therefore, Employee agrees that both during and after the period of Employee’s\nemployment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose\nor transfer any Confidential Information of such third parties to any person or entity, or (b) use any Confidential Information of such third parties for\nany purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for Inspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records, whether printed, typed, handwritten, videotaped, transmitted or transcribed on data\nfiles or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made\navailable to Employee, during the period of Employee employment with Inspire (including the period prior to the date of this Agreement) concerning\nInspire’s Confidential Information are and shall remain Inspire’s property and shall be delivered to Inspire within five (5) business days after the\ntermination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential\nInformation, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement),\nor which Employee may later make, conceive or develop, during the period of Employee’s employment with Inspire, which pertain to or relate to\nInspire’s business or any of the work or businesses carried on by Inspire (“Inventions™). This covenant applies to all such Inventions, whether or not\nthey are eligible for patent, copyright, trademark, trade secret or other legal protection; and whether or not they are conceived and/or developed by\nEmployee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are\nconceived and/or developed at Inspire’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with Inspire, a\ncomplete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for\npurposes of this Agreement, whether or not fixed in a tangible medium of expression. Employee hereby assigns all Employee’s rights in all\nInventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting the\nforegoing, Employee agrees that any copyrightable material shall be deemed to be “works made for hire” and that Inspire shall be deemed the author\nof such works under the United States Copyright Act, provided that in the event and to the extent such works are determined not to constitute “works\nmade for hire”, Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee’s employment with Inspire, at Inspire’s sole\nexpense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions.\nEmployee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all\nInventions against infringement by others. Employee hereby appoints the Secretary of Inspire as Employee’s attorney-in-fact to execute documents\non Employee’s behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s\nemployment with Inspire.\n7. COVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with Inspire, employed in the discovery or\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section\n7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and\nknowledge of any Confidential Information would substantially and irreparably injure Inspire’s business, prospects and good will. Employee and\nInspire also agree that Inspire’s business is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees\nthat during the period of Employee’s employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly,\nthrough any other person, firm, corporation or other entity (whether as an officer, director, employee, partner, consultant, holder of equity or debt\ninvestment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g., same receptors (such as P2Y), same mechanism of action (such as mucociliary clearance)) as those being developed,\noffered or sold by Inspire on the date of the termination of Employee’s employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or\nconsulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any\nconsultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as or\nsimilar to the name of Inspire or any trade name used by Inspire.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly\nrequired for the adequate protection of Inspire’s business. In the event that any such geographic, activity or time limitation is deemed to be\nunreasonable by a court, Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall\ndeem reasonable. In the event that Employee is in violation of the aforementioned restrictive covenants, then the time limitation thereof shall be\nextended for a period of time equal to the pendency of such proceedings, including appeals.\n_3-\n8. REPRESENTATIONS. Employee represents that Employee has the right to enter into this Agreement, and that Employee’s performance of all the\nterms of this Agreement and his duties as an employee of Inspire will not breach any confidential information agreement, non-competition\nagreement or other agreement with any former employer of his services, either as an employee, consultant, contractor or independent contractor, or\nwith any other party. Employee represents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of\nany third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any\nof Employee’s future employers, of the terms of this Agreement and Employee’s responsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach\nor threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to Inspire at law or in equity, Inspire shall\nbe entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. No RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant by Inspire to the employee of any license or other right under any patent, patent application or other intellectual property right or interest\nbelonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be\ndetermined to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable\nprovision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or\ncovenant hereunder or under any other agreement or understanding between Employee and Inspire.\n13. GOVERNING LAw. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS\nTHIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE\n4-\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE’S PERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS UNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE’S EMPLOYMENT WITH INSPIRE FOR ANY REASON.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below. INSPIRE PHARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy: /s/ Christy L. Shaffer\nChristy L. Shaffer, Ph.D.,\nChief Executive Officer\nEMPLOYEE: Barry G. Pea\n(Print Name)\n/s/ Barry G. Pea\n(Signature Here)\nDate: 10/11/04\nAddress: 137 New Castle Drive\nChapel Hill, NC 27517\n \nSCHEDULE A\nPRIOR INVENTIONS\n-6-	EX-10.42 4 ex1042.htm EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE\nAGREEMENT\nEXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT ("Agreement") is made as\nof the date set forth on the signature page below between Inspire Pharmaceuticals, Inc. ("Inspire"), and the person whose name is set forth on\nthe\nsignature page below as Employee ("Employee").\nIn consideration of Employee's employment or continued employment by Inspire, with the intention that this Agreement shall apply to the\nentire period of Employee's employment with Inspire (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. "Confidential Information" means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs,\ndrawings, specifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances,\nchemical compounds, subcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or\nrelating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective customers, the nature\nof work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and\ndevelopment plans, pricing or pricing policies, financial information, plans for further development, and any other information of a similar nature not\navailable to the public).\n"Confidential Information" shall not include information that: (a) was in Employee's possession or in the public domain before receipt from\nthe Company, as evidenced by the then existing publication or other public dissemination of such information in written or other documentary form;\n(b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to\nan obligation of confidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having\ncompetent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the Company a\nreasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee's employment\nwith Inspire, Employee has had or will have access to Confidential Information of Inspire. Therefore, Employee agrees that both during and after the\nperiod of Employee's employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal,\nreport, publish, disclose or transfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire\nfor any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee's work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee's employment\nwith Inspire, Employee may have had or will\n-1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-\ndisclosure agreement between Inspire and such third party. Therefore, Employee agrees that both during and after the period of Employee's\nemployment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose\nor transfer any Confidential Information of such third parties to any person or entity, or (b) use any Confidential Information of such third parties for\nany purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee's work for Inspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records, whether printed, typed, handwritten, videotaped, transmitted or transcribed on data\nfiles\nor\non\nany other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made\navailable to Employee, during the period of Employee employment with Inspire (including the period prior to the date of this Agreement) concerning\nInspire's Confidential Information are and shall remain Inspire's property and shall be delivered to Inspire within five (5) business days after\nthe\ntermination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential\nInformation, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement),\nor which Employee may later make, conceive or develop, during the period of Employee's employment with Inspire, which pertain to or relate to\nInspire's business or any of the work or businesses carried on by Inspire ("Inventions"). This covenant applies to all such Inventions, whether or not\nthey are eligible for patent, copyright, trademark, trade secret or other legal protection; and whether or not they are conceived and/or developed by\nEmployee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they\nare\nconceived and/or developed at Inspire's facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee's employment with Inspire, a\ncomplete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for\npurposes of this Agreement, whether or not fixed in a tangible medium of expression. Employee hereby assigns all Employee's rights in all\nInventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting\nthe\nforegoing, Employee agrees that any copyrightable material shall be deemed to be "works made for hire" and that Inspire shall be deemed the author\nof such works under the United States Copyright Act, provided that in the event and to the extent such works are determined not to constitute "works\nmade for hire", Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n-2-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee's employment with Inspire, at Inspire's sole\nexpense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions.\nEmployee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all\nInventions against infringement by others. Employee hereby appoints the Secretary of Inspire as Employee's attorney-in-fact to execute documents\non Employee's behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee's\nemployment with Inspire.\n7. COVENANT NOT TO COMPETE. If Employee is, at any time during Employee's period of employment with Inspire, employed in the discovery\nor\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section\n7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and\nknowledge of any Confidential Information would substantially and irreparably injure Inspire's business, prospects and good will. Employee and\nInspire also agree that Inspire's business is global in nature due to the type of products and/or services being provided Therefore, Employee agrees\nthat\nduring\nthe period of Employee's employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly,\nthrough any other person, firm, corporation or other entity (whether as an officer, director, employee, partner, consultant, holder of equity or debt\ninvestment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g., same receptors (such as P2Y), same mechanism of action (such as mucociliary clearance)) as those being developed,\noffered or sold by Inspire on the date of the termination of Employee's employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment\nor\nconsulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any\nconsultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as\nor\nsimilar to the name of Inspire or any trade name used by Inspire\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly\nrequired for the adequate protection of Inspire's business. In the event that any such geographic, activity or time limitation is deemed to be\nunreasonable by a court, Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall\ndeem reasonable. In the event that Employee is in violation of the aforementioned restrictive covenants, then the time limitation thereof shall be\nextended for a period of time equal to the pendency of such proceedings, including appeals.\n-3-\n8. REPRESENTATIONS. Employee represents that Employee has the right to enter into this Agreement, and that Employee's performance of all the\nterms of this Agreement and his duties as an employee of Inspire will not breach any confidential information agreement, non-competition\nagreement or other agreement with any former employer of his services, either as an employee, consultant, contractor or independent contractor, or\nwith any other party. Employee represents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of\nany third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any\nof Employee's future employers, of the terms of this Agreement and Employee's responsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach\nor threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to Inspire at law or in equity, Inspire shall\nbe entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. No RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant\nby Inspire to the employee of any license or other right under any patent, patent application or other intellectual property right or interest\nbelonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be\ndetermined to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable\nprovision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or\ncovenant hereunder or under any other agreement or understanding between Employee and Inspire.\n13. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS\nTHIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE\n-4-\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE'S\nPERSONNEL FILE; AND (iv) THE EMPLOYEE'S OBLIGATIONS UNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE\nEMPLOYEE'S EMPLOYMENT WITH INSPIRE FOR ANY REASON.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nINSPIRE PHARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy: /s/ Christy L. Shaffer\nChristy L. Shaffer, Ph.D.,\nChief Executive Officer\nEMPLOYEE: Barry G. Pea\n(Print Name)\n/s/ Barry G. Pea\n(Signature Here)\nDate: 10/11/04\nAddress: 137 New Castle Drive\nChapel Hill, NC 27517\n-5-\nSCHEDULE A\nPRIOR INVENTIONS\n-6-	EX-10.42 4 dex1042.htm EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE\nAGREEMENT\nEXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT (“Agreement”) is made as\nof the date set forth on the signature page below between Inspire Pharmaceuticals, Inc. (“Inspire”), and the person whose name is set forth on the\nsignature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by Inspire, with the intention that this Agreement shall apply to the\nentire period of Employee’s employment with Inspire (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. “Confidential Information” means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs,\ndrawings, specifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances,\nchemical compounds, subcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or\nrelating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective customers, the nature\nof work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and\ndevelopment plans, pricing or pricing policies, financial information, plans for further development, and any other information of a similar nature not\navailable to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from\nthe Company, as evidenced by the then existing publication or other public dissemination of such information in written or other documentary form;\n(b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to\nan obligation of confidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having\ncompetent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the Company a\nreasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee’s employment\nwith Inspire, Employee has had or will have access to Confidential Information of Inspire. Therefore, Employee agrees that both during and after the\nperiod of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal,\nreport, publish, disclose or transfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire\nfor any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee’s employment\nwith Inspire, Employee may have had or will\n-1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-\ndisclosure agreement between Inspire and such third party. Therefore, Employee agrees that both during and after the period of Employee’s\nemployment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose\nor transfer any Confidential Information of such third parties to any person or entity, or (b) use any Confidential Information of such third parties for\nany purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for Inspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records, whether printed, typed, handwritten, videotaped, transmitted or transcribed on data\nfiles or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made\navailable to Employee, during the period of Employee employment with Inspire (including the period prior to the date of this Agreement) concerning\nInspire’s Confidential Information are and shall remain Inspire’s property and shall be delivered to Inspire within five (5) business days after the\ntermination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential\nInformation, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement),\nor which Employee may later make, conceive or develop, during the period of Employee’s employment with Inspire, which pertain to or relate to\nInspire’s business or any of the work or businesses carried on by Inspire (“Inventions”). This covenant applies to all such Inventions, whether or not\nthey are eligible for patent, copyright, trademark, trade secret or other legal protection; and whether or not they are conceived and/or developed by\nEmployee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are\nconceived and/or developed at Inspire’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with Inspire, a\ncomplete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for\npurposes of this Agreement, whether or not fixed in a tangible medium of expression. Employee hereby assigns all Employee’s rights in all\nInventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting the\nforegoing, Employee agrees that any copyrightable material shall be deemed to be “works made for hire” and that Inspire shall be deemed the author\nof such works under the United States Copyright Act, provided that in the event and to the extent such works are determined not to constitute “works\nmade for hire”, Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n-2-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee’s employment with Inspire, at Inspire’s sole\nexpense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions.\nEmployee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all\nInventions against infringement by others. Employee hereby appoints the Secretary of Inspire as Employee’s attorney-in-fact to execute documents\non Employee’s behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s\nemployment with Inspire.\n7. COVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with Inspire, employed in the discovery or\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section\n7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and\nknowledge of any Confidential Information would substantially and irreparably injure Inspire’s business, prospects and good will. Employee and\nInspire also agree that Inspire’s business is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees\nthat during the period of Employee’s employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly,\nthrough any other person, firm, corporation or other entity (whether as an officer, director, employee, partner, consultant, holder of equity or debt\ninvestment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g., same receptors (such as P2Y), same mechanism of action (such as mucociliary clearance)) as those being developed,\noffered or sold by Inspire on the date of the termination of Employee’s employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or\nconsulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any\nconsultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as or\nsimilar to the name of Inspire or any trade name used by Inspire.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly\nrequired for the adequate protection of Inspire’s business. In the event that any such geographic, activity or time limitation is deemed to be\nunreasonable by a court, Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall\ndeem reasonable. In the event that Employee is in violation of the aforementioned restrictive covenants, then the time limitation thereof shall be\nextended for a period of time equal to the pendency of such proceedings, including appeals.\n-3-\n8. REPRESENTATIONS. Employee represents that Employee has the right to enter into this Agreement, and that Employee’s performance of all the\nterms of this Agreement and his duties as an employee of Inspire will not breach any confidential information agreement, non-competition\nagreement or other agreement with any former employer of his services, either as an employee, consultant, contractor or independent contractor, or\nwith any other party. Employee represents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of\nany third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any\nof Employee’s future employers, of the terms of this Agreement and Employee’s responsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach\nor threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to Inspire at law or in equity, Inspire shall\nbe entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. NO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant by Inspire to the employee of any license or other right under any patent, patent application or other intellectual property right or interest\nbelonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be\ndetermined to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable\nprovision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or\ncovenant hereunder or under any other agreement or understanding between Employee and Inspire.\n13. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS\nTHIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE\n-4-\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE’S\nPERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS UNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE\nEMPLOYEE’S EMPLOYMENT WITH INSPIRE FOR ANY REASON.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nINSPIRE PHARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy: /s/ Christy L. Shaffer\nChristy L. Shaffer, Ph.D.,\nChief Executive Officer\nEMPLOYEE: Barry G. Pea\n(Print Name)\n/s/ Barry G. Pea\n(Signature Here)\nDate:\n10/11/04\nAddress: 137 New Castle Drive\nChapel Hill, NC 27517\n-5-\nSCHEDULE A\nPRIOR INVENTIONS\n-6-
6a1526e7b6044ef4589f657d13c2f61a.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 11 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nSeptember 3, 2007\nDanaher Corporation\n2099 Pennsylvania Avenue, NW\n12th Floor\nWashington, D.C . 20006\nAttention: Jonathan Schwarz\nLadies and Gentlemen:\nYou have requested information from Tektronix, Inc. (the “Company”) in connection with your consideration of a possible transaction\nregarding the Company (a “Transaction”). The Company may in its sole discretion from time to time furnish or otherwise make available to you\ncertain information about its business in consideration for your agreement to abide by the confidentiality and other terms of this letter agreement\n(this “Agreement”).\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction between us all non-public\ninformation concerning the Company that the Company or its Representatives (as hereinafter defined) furnishes or otherwise provides to\nyou or your Representatives in the course of your investigation and whether in oral, written or electronic form, together with any reports,\nanalyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by you or your\nRepresentatives that contain such information (collectively, the “Evaluation Material”); provided, however, that (i) any Evaluation\nMaterial may be disclosed to officers, directors, employees, accountants, legal counsel, investment bankers, commercial banks and other\nfunding sources, consultants, and other representatives (such persons being generally referred to herein as “Representatives”) of yours\nwho need to know such information for the purpose of evaluating a Transaction between us so long as you cause your Representatives to\ntreat the Evaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation\nMaterial may be made to which the Company expressly consents in writing and (iii) any disclosure of the Evaluation Material may be\nmade as outlined in Section 1(d) below. Notwithstanding the above, the term “Evaluation Material” does not include information that\n(i) was or becomes available to you on a non-confidential basis from a source other than the Company or its Representatives, provided\nthat, after making reasonable inquiry, you do not know such other source to be bound by a confidentiality obligation to the Company\nwith respect to such information, (ii) was or becomes available to the public (other than as a result of a breach by you or your\nRepresentatives of this Agreement), (iii) is already in your or your Representatives’ possession at the time of its disclosure or (iv) is\nindependently developed by you without reference to any Evaluation Material. You agree to treat (and shall cause your Representatives\nto treat) the Evaluation Material with at least the degree of care that you treat similar materials of your own, or a higher standard of care\nif reasonable under the circumstances.\n(b) Each of the parties hereto agrees that neither it nor any of its Representatives will, without the prior written consent of the other,\ndirectly or indirectly, (i) disclose to any other person (other than its Representatives) the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including\nthe status thereof, (ii) disclose to any other person (other than its Representatives) the existence or the terms of this Agreement, or\n(iii) disclose to any other person (other than its Representatives) that you or\n1\nyour Representatives have received or produced any Evaluation Material; provided, however, that any disclosure prohibited by this\nparagraph may be made to the extent the disclosing party has received the advice of its outside counsel that such disclosure is required to\nbe made by it in order to avoid violating any federal or state law or rules or regulations of a national securities exchange or self-\nregulatory organization to which you are subject; and, provided further, that the disclosing party will notify the other party prior to\nmaking any such disclosure in accordance with the procedures outlined in section (d) below and will otherwise act in accordance with\nsection (d) below (mutatis mutandis where the Company is the disclosing party).\n(c) It is understood that all requests for information, facility tours or management meetings and discussions or questions regarding\nprocedures will be submitted or directed to Sam Britton or Lev Finkelstein at Goldman, Sachs & Co. or such other persons designated\nand notified to you in writing from time to time by the Company (the “Company Designees”). It is understood that Goldman, Sachs &\nCo. will arrange for appropriate contacts for due diligence purposes, which contacts will be permitted hereunder.\n(d) In the event that you or any of your Representatives are requested to disclose any Evaluation Material in connection with any\njudicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil\nInvestigation Demand or similar process) or on advice of outside counsel, you will provide the Company with prompt written notice of\nsuch requirement(s) in advance of such disclosure where possible. You also agree, to the extent legally permissible and if possible, (i) to\nprovide the Company with a list of any Evaluation Material you or any of your Representatives intend to disclose (and, if applicable, the\ntext of the disclosure language itself) in advance of any such disclosure, and (ii) to cooperate with the Company to the extent it may seek\nto limit such disclosure, including, if requested, taking reasonable steps (at the Company’s expense) to resist or avoid any such\ndisclosure. If you have not provided the Company with advance notice of any such disclosure because the provision of such advance\nnotice was not possible, you agree, to the extent legally permissible, to provide the Company with prompt written notice of such\ndisclosure after such disclosure is made, including a list of any Evaluation Material you or any of your Representatives disclosed (and, if\napplicable, the text of the disclosure language itself). Regardless of whether or not such advance notice was possible, you or your\nRepresentatives, as applicable, shall disclose only that portion of the Evaluation Material that you are advised is legally required to be\ndisclosed by outside counsel and shall use commercially reasonable efforts to obtain reliable assurances that confidential treatment will\nbe accorded to any Evaluation Material that you or your Representatives are legally required to disclose after complying with the\nprovisions of this paragraph.\n(e) In the event that either party in its sole discretion determines that it does not wish to proceed with a possible Transaction, upon\nthe request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at your option,\ndestroy all Evaluation Material, including, without limitation, expunging to the extent reasonably practicable all Evaluation Material\nfrom any computer, word processor or other device in your possession or in the possession of your Representatives, and you shall certify\nto the Company that you and your Representatives have done so; provided, however, that you and your Representatives need only use\nreasonable efforts to delete Evaluation Material from back-up, archival electronic storage or need not delete Evaluation Material from\nback-up, archival electronic storage, so long as only your or your Representatives’ information technology personnel responsible for the\nadministration of such storage are able to access such Evaluation Material; provided, further, that if you or your Representatives or any\nsuch information technology personnel discover such Evaluation Material in such storage, you shall (or shall cause your Representatives\nor such information technology personnel to) promptly delete it. Notwithstanding the delivery or destruction of the Evaluation Material\nrequired by this paragraph, any and all duties and obligations existing under this Agreement shall remain in full force and effect during\nthe term of this Agreement.\n2\n2. Non-Solicitation of Senior Employees.\nFor a period of 12 months from the date hereof, each of the parties agrees that it will not solicit for hire any senior employees of the other party\nor any of its subsidiaries with whom it has first come into contact in connection with the Transaction or evaluation thereof; provided, however, that\ngeneral solicitation of employment through general advertisements or other means not specifically targeted to employees of yours or the Company,\nas applicable, shall not be deemed a violation of such party’s obligation not to solicit; provided, further, that the foregoing shall not apply to (i) any\nperson who approached you without any solicitation or inducement by you or on your behalf or (ii) any person not employed by the Company or any\nof its subsidiaries at the time of the solicitation (mutatis mutandis where the Company is the approached or soliciting party).\n3. Standstill.\n(a) Subject to Section 3(b) of this Agreement, for a period of nine months from the date of this Agreement (the “Standstill Period”)\nyou will not (and you will not request or encourage your affiliates or Representatives to on your behalf) without the prior written\npermission of the Company: (i) acquire or offer, seek, propose or agree to acquire, beneficial ownership of more than 1% of the voting\nsecurities of the Company or any consolidated assets of the Company, not counting any purchases of assets in the ordinary course,\n(ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business combination or other similar\ntransaction involving the Company, (iii) make, or in any way participate in, any “solicitation” of “proxies” (as such terms are used in the\nproxy rules of the Securities and Exchange Commission) or consents to vote or seek to advise or influence any person with respect to the\nvoting of any voting securities of the Company, (iv) form, join or in any way participate in a “group” (within the meaning of\nSection 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of the\nCompany, (v) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of the Company\nor (vi) take any action which would reasonably be expected to force the Company to make a public announcement about this Agreement\nor a possible Transaction; provided, however, that nothing contained in this Agreement shall prevent you from making a confidential\nproposal to the Board of Directors of the Company, without public disclosure by you, for a tender offer, exchange offer, merger, other\nbusiness combination, other extraordinary transaction or Combination (as defined in Section 3(b) of this Agreement) involving the\nCompany or for an acquisition of all or a material portion of the common stock or the consolidated assets of the Company, provided that\nyou are specifically invited in writing in advance to do so by the Company’s Board of Directors.\n(b) If at any time during the Standstill Period (i) the Company enters into a definitive agreement providing for a Combination or the\nCompany redeems any rights under, or modifies or agrees in writing to modify, a shareholder rights plan to facilitate any Combination,\n(ii) a tender or exchange offer that if consummated would constitute a Combination is made for securities of the Company, (iii) the\nCompany engages in a formal, public “auction” process that includes consideration of one or more transactions that if consummated\nwould constitute a Combination or (iv) a person or “group” (within the meaning of Section 13(d) under the Exchange Act) enters into an\nagreement or commences a proxy solicitation by which the person or “group” would, if successful, elect or acquire the ability to elect a\nmajority of the Board of Directors of the Company, then the restrictions set forth in this Section 3 of this Agreement shall terminate and\nall other provisions of this Agreement shall continue to be in full force and effect in accordance with the terms hereof. A “Combination”\nshall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d) under the Exchange Act) acquires,\ndirectly or indirectly, securities representing a majority of the voting power of the outstanding securities of the Company or properties or\nassets constituting a majority of the consolidated assets of the Company and its subsidiaries or (ii) in any case not covered by (i), the\nCompany engages in a merger or other business combination such that the holders of voting securities of the Company immediately prior\nto the transaction do not own a majority of the voting power of securities of the resulting entity.\n3\n(c) In the event that the Company has entered into (or amended, modified or waived) or enters into (or amends, modifies or waives)\na confidentiality or “standstill” agreement or similar arrangement with any person in connection with a possible transaction involving a\nCombination that, either as an initial matter or by virtue of such amendment, modification or waiver, (i) contains any “standstill”\nprovision(s) that are, in any respect, materially more favorable to or materially less restrictive of the other party to such agreement than\nthe provision(s) of this Agreement are with respect to you (provided, however, that for the avoidance of doubt any “standstill” restriction\nwith a term shorter than the “standstill” term of this Agreement shall be deemed to be so materially more favorable and materially less\nrestrictive) or (ii) does not include any “standstill” provisions, then this Section 3 of this Agreement shall automatically be deemed to be\namended to conform the provision(s) of this Agreement with such more favorable or less restrictive provision(s) (or, if such\nconfidentiality agreement does not include any “standstill” provisions, to remove the restrictions imposed by this Section 3 of this\nAgreement in their entirety) and the Company shall promptly provide you with written notice of such development including a copy of\nsuch “standstill” provision(s) (which need not identify such other party) or notify you of the absence of any “standstill” provisions in\nsuch agreement, as the case may be; provided, however, that you may, by written notification, reject any such change and elect to retain\nsome or all of the pre-existing “standstill” provisions applicable to you.\n4. No Representations or Warranties.\nYou understand and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied,\non which you or your Representatives may rely, as to the accuracy or completeness of the Evaluation Material for your or their purposes and that\nonly those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a Transaction, if any, shall\nhave any legal effect.\n5. Equitable Relief.\nEach party, without prejudice to any rights at law that it may otherwise have, shall be entitled to seek equitable relief, including, without\nlimitation, injunction and specific performance, in the event of any breach of the provisions of this Agreement by the other party. Each party agrees\nthat it will not oppose the granting of such relief on the basis that the other party has an adequate remedy at law.\n6. No Obligation.\nIt is understood and agreed that no contract or agreement providing for any transaction shall be deemed to exist among any of the parties\nhereto unless and until a definitive agreement concerning a transaction has been executed by and delivered to all parties hereto. It is further agreed\nthat, unless and until a definitive agreement between the parties concerning a transaction is executed and delivered, neither party shall have any legal\nobligation of any kind whatsoever with respect to such transaction by virtue of this Agreement or any other written or oral expression with respect to\nsuch transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term\n“definitive agreement between the parties concerning a transaction” does not include an executed memorandum of understanding, letter of intent or\nother preliminary agreement.\n7. Compliance with Law.\nYou hereby confirm that you are aware and that your Representatives have been advised that the United States securities laws prohibit any\nperson who has material non-public information about a company from purchasing or selling securities of such company or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities.\n4\n8. Miscellaneous.\n(a) Unless terminated earlier pursuant to the terms hereof, each party’s obligations under this Agreement expire two years from the date\nhereof; provided, however, that, notwithstanding anything to the contrary in this Agreement, if either party decides not to proceed with a\npossible Transaction, your obligations hereunder to keep confidential and not to use (and to cause your Representatives to keep confidential\nand not to use) Evaluation Material shall expire three years from the date hereof.\n(b) It is agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege.\n(c) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any\ncorporation, company, firm, group, limited liability company, partnership, trust, joint venture, governmental entity or individual.\n(d) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without regard to\nany conflict of laws principles.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. In furtherance and not in\nlimitation of the preceding sentence, no subsequent acceptance of any license agreement, terms of use or other similar provisions required for\naccess to any electronic data room shall be deemed to modify any of the provisions of this Agreement. This Agreement shall be binding upon\nand inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement by any\nparty, except to an affiliate or by operation of law, without the prior written consent of the other party shall be void and shall constitute a\nbreach of this Agreement.\n(f) If any part or provision of this Agreement is held to be illegal or unenforceable, the validity of the remaining parts or provisions shall\nnot be affected and the provision held illegal or unenforceable will be construed in a manner to allow enforceability and to effect the intent of\nthe parties as nearly as possible.\n(g) This Agreement may only be amended by a separate writing signed by the Company and you expressly amending this Agreement.\nAny provision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the\nbenefit thereof.\n(h) This Agreement may be executed in two counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same document. Counterparts may be exchanged by facsimile transmission or e-mail of scanned signatures, and such\nelectronically transmitted counterparts shall have the full force and effect of original signatures.\n*\n*\n*\n5\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nTEKTRONIX, INC.\nBy:\n/s/ JAMES F. DALTON\nName:\nJames F. Dalton\nTitle:\nSenior Vice President\nCONFIRMED AND AGREED TO:\nDANAHER CORPORATION\nBy:\n/s/ JONATHAN SCHWARZ\nName:\nJonathan Schwarz\nTitle:\nDirector, Corporate Development\nDated: 9/3/07\n6	EX-99.(D)(2) 11 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nSeptember 3, 2007\nDanaher Corporation\n2099 Pennsylvania Avenue, NW\n12th Floor\nWashington, D.C. 20006\nAttention: Jonathan Schwarz\nLadies and Gentlemen:\nYou have requested information from Tektronix, Inc. (the “Company”) in connection with your consideration of a possible transaction\nregarding the Company (a “Transaction”). The Company may in its sole discretion from time to time furnish or otherwise make available to you\ncertain information about its business in consideration for your agreement to abide by the confidentiality and other terms of this letter agreement\n(this “Agreement”).\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction between us all non-public\ninformation concerning the Company that the Company or its Representatives (as hereinafter defined) furnishes or otherwise provides to\nyou or your Representatives in the course of your investigation and whether in oral, written or electronic form, together with any reports,\nanalyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by you or your\nRepresentatives that contain such information (collectively, the “Evaluation Material”); provided, however, that (i) any Evaluation\nMaterial may be disclosed to officers, directors, employees, accountants, legal counsel, investment bankers, commercial banks and other\nfunding sources, consultants, and other representatives (such persons being generally referred to herein as “Representatives”) of yours\nwho need to know such information for the purpose of evaluating a Transaction between us so long as you cause your Representatives to\ntreat the Evaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation\nMaterial may be made to which the Company expressly consents in writing and (iii) any disclosure of the Evaluation Material may be\nmade as outlined in Section 1(d) below. Notwithstanding the above, the term “Evaluation Material” does not include information that\n(i) was or becomes available to you on a non-confidential basis from a source other than the Company or its Representatives, provided\nthat, after making reasonable inquiry, you do not know such other source to be bound by a confidentiality obligation to the Company\nwith respect to such information, (ii) was or becomes available to the public (other than as a result of a breach by you or your\nRepresentatives of this Agreement), (iii) is already in your or your Representatives’ possession at the time of its disclosure or (iv) is\nindependently developed by you without reference to any Evaluation Material. You agree to treat (and shall cause your Representatives\nto treat) the Evaluation Material with at least the degree of care that you treat similar materials of your own, or a higher standard of care\nif reasonable under the circumstances.\n(b) Each of the parties hereto agrees that neither it nor any of its Representatives will, without the prior written consent of the other,\ndirectly or indirectly, (i) disclose to any other person (other than its Representatives) the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including\nthe status thereof, (ii) disclose to any other person (other than its Representatives) the existence or the terms of this Agreement, or\n(iii) disclose to any other person (other than its Representatives) that you or\n1\nyour Representatives have received or produced any Evaluation Material; provided, however, that any disclosure prohibited by this\nparagraph may be made to the extent the disclosing party has received the advice of its outside counsel that such disclosure is required to\nbe made by it in order to avoid violating any federal or state law or rules or regulations of a national securities exchange or self-\nregulatory organization to which you are subject; and, provided further, that the disclosing party will notify the other party prior to\nmaking any such disclosure in accordance with the procedures outlined in section (d) below and will otherwise act in accordance with\nsection (d) below (mutatis mutandis where the Company is the disclosing party).\n(c) It is understood that all requests for information, facility tours or management meetings and discussions or questions regarding\nprocedures will be submitted or directed to Sam Britton or Lev Finkelstein at Goldman, Sachs & Co. or such other persons designated\nand notified to you in writing from time to time by the Company (the “Company Designees”). It is understood that Goldman, Sachs &\nCo. will arrange for appropriate contacts for due diligence purposes, which contacts will be permitted hereunder.\n(d) In the event that you or any of your Representatives are requested to disclose any Evaluation Material in connection with any\njudicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil\nInvestigation Demand or similar process) or on advice of outside counsel, you will provide the Company with prompt written notice of\nsuch requirement(s) in advance of such disclosure where possible. You also agree, to the extent legally permissible and if possible, (i) to\nprovide the Company with a list of any Evaluation Material you or any of your Representatives intend to disclose (and, if applicable, the\ntext of the disclosure language itself) in advance of any such disclosure, and (ii) to cooperate with the Company to the extent it may seek\nto limit such disclosure, including, if requested, taking reasonable steps (at the Company’s expense) to resist or avoid any such\ndisclosure. If you have not provided the Company with advance notice of any such disclosure because the provision of such advance\nnotice was not possible, you agree, to the extent legally permissible, to provide the Company with prompt written notice of such\ndisclosure after such disclosure is made, including a list of any Evaluation Material you or any of your Representatives disclosed (and, if\napplicable, the text of the disclosure language itself). Regardless of whether or not such advance notice was possible, you or your\nRepresentatives, as applicable, shall disclose only that portion of the Evaluation Material that you are advised is legally required to be\ndisclosed by outside counsel and shall use commercially reasonable efforts to obtain reliable assurances that confidential treatment will\nbe accorded to any Evaluation Material that you or your Representatives are legally required to disclose after complying with the\nprovisions of this paragraph.\n(e) In the event that either party in its sole discretion determines that it does not wish to proceed with a possible Transaction, upon\nthe request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at your option,\ndestroy all Evaluation Material, including, without limitation, expunging to the extent reasonably practicable all Evaluation Material\nfrom any computer, word processor or other device in your possession or in the possession of your Representatives, and you shall certify\nto the Company that you and your Representatives have done so; provided, however, that you and your Representatives need only use\nreasonable efforts to delete Evaluation Material from back-up, archival electronic storage or need not delete Evaluation Material from\nback-up, archival electronic storage, so long as only your or your Representatives” information technology personnel responsible for the\nadministration of such storage are able to access such Evaluation Material; provided, further, that if you or your Representatives or any\nsuch information technology personnel discover such Evaluation Material in such storage, you shall (or shall cause your Representatives\nor such information technology personnel to) promptly delete it. Notwithstanding the delivery or destruction of the Evaluation Material\nrequired by this paragraph, any and all duties and obligations existing under this Agreement shall remain in full force and effect during\nthe term of this Agreement.\n2. Non-Solicitation of Senior Employees.\nFor a period of 12 months from the date hereof, each of the parties agrees that it will not solicit for hire any senior employees of the other party\nor any of its subsidiaries with whom it has first come into contact in connection with the Transaction or evaluation thereof; provided, however, that\ngeneral solicitation of employment through general advertisements or other means not specifically targeted to employees of yours or the Company,\nas applicable, shall not be deemed a violation of such party’s obligation not to solicit; provided, further, that the foregoing shall not apply to (i) any\nperson who approached you without any solicitation or inducement by you or on your behalf or (ii) any person not employed by the Company or any\nof its subsidiaries at the time of the solicitation (mutatis mutandis where the Company is the approached or soliciting party).\n3. Standstill.\n(a) Subject to Section 3(b) of this Agreement, for a period of nine months from the date of this Agreement (the “Standstill Period”)\nyou will not (and you will not request or encourage your affiliates or Representatives to on your behalf) without the prior written\npermission of the Company: (i) acquire or offer, seek, propose or agree to acquire, beneficial ownership of more than 1% of the voting\nsecurities of the Company or any consolidated assets of the Company, not counting any purchases of assets in the ordinary course,\n(ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business combination or other similar\ntransaction involving the Company, (iii) make, or in any way participate in, any “solicitation” of “proxies” (as such terms are used in the\nproxy rules of the Securities and Exchange Commission) or consents to vote or seek to advise or influence any person with respect to the\nvoting of any voting securities of the Company, (iv) form, join or in any way participate in a “group” (within the meaning of\nSection 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of the\nCompany, (v) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of the Company\nor (vi) take any action which would reasonably be expected to force the Company to make a public announcement about this Agreement\nor a possible Transaction; provided, however, that nothing contained in this Agreement shall prevent you from making a confidential\nproposal to the Board of Directors of the Company, without public disclosure by you, for a tender offer, exchange offer, merger, other\nbusiness combination, other extraordinary transaction or Combination (as defined in Section 3(b) of this Agreement) involving the\nCompany or for an acquisition of all or a material portion of the common stock or the consolidated assets of the Company, provided that\nyou are specifically invited in writing in advance to do so by the Company’s Board of Directors.\n(b) If at any time during the Standstill Period (i) the Company enters into a definitive agreement providing for a Combination or the\nCompany redeems any rights under, or modifies or agrees in writing to modify, a shareholder rights plan to facilitate any Combination,\n(ii) a tender or exchange offer that if consummated would constitute a Combination is made for securities of the Company, (iii) the\nCompany engages in a formal, public “auction” process that includes consideration of one or more transactions that if consummated\nwould constitute a Combination or (iv) a person or “group” (within the meaning of Section 13(d) under the Exchange Act) enters into an\nagreement or commences a proxy solicitation by which the person or “group” would, if successful, elect or acquire the ability to elect a\nmajority of the Board of Directors of the Company, then the restrictions set forth in this Section 3 of this Agreement shall terminate and\nall other provisions of this Agreement shall continue to be in full force and effect in accordance with the terms hereof. A “Combination”\nshall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d) under the Exchange Act) acquires,\ndirectly or indirectly, securities representing a majority of the voting power of the outstanding securities of the Company or properties or\nassets constituting a majority of the consolidated assets of the Company and its subsidiaries or (ii) in any case not covered by (i), the\nCompany engages in a merger or other business combination such that the holders of voting securities of the Company immediately prior\nto the transaction do not own a majority of the voting power of securities of the resulting entity.\n3\n(c) In the event that the Company has entered into (or amended, modified or waived) or enters into (or amends, modifies or waives)\na confidentiality or “standstill” agreement or similar arrangement with any person in connection with a possible transaction involving a\nCombination that, either as an initial matter or by virtue of such amendment, modification or waiver, (i) contains any “standstill”\nprovision(s) that are, in any respect, materially more favorable to or materially less restrictive of the other party to such agreement than\nthe provision(s) of this Agreement are with respect to you (provided, however, that for the avoidance of doubt any “standstill” restriction\nwith a term shorter than the “standstill” term of this Agreement shall be deemed to be so materially more favorable and materially less\nrestrictive) or (ii) does not include any “standstill” provisions, then this Section 3 of this Agreement shall automatically be deemed to be\namended to conform the provision(s) of this Agreement with such more favorable or less restrictive provision(s) (or, if such\nconfidentiality agreement does not include any “standstill” provisions, to remove the restrictions imposed by this Section 3 of this\nAgreement in their entirety) and the Company shall promptly provide you with written notice of such development including a copy of\nsuch “standstill” provision(s) (which need not identify such other party) or notify you of the absence of any “standstill” provisions in\nsuch agreement, as the case may be; provided, however, that you may, by written notification, reject any such change and elect to retain\nsome or all of the pre-existing “standstill” provisions applicable to you.\n4. No Representations or Warranties.\nYou understand and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied,\non which you or your Representatives may rely, as to the accuracy or completeness of the Evaluation Material for your or their purposes and that\nonly those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a Transaction, if any, shall\nhave any legal effect.\n5. Equitable Relief.\nEach party, without prejudice to any rights at law that it may otherwise have, shall be entitled to seek equitable relief, including, without\nlimitation, injunction and specific performance, in the event of any breach of the provisions of this Agreement by the other party. Each party agrees\nthat it will not oppose the granting of such relief on the basis that the other party has an adequate remedy at law.\n6. No Obligation.\nIt is understood and agreed that no contract or agreement providing for any transaction shall be deemed to exist among any of the parties\nhereto unless and until a definitive agreement concerning a transaction has been executed by and delivered to all parties hereto. It is further agreed\nthat, unless and until a definitive agreement between the parties concerning a transaction is executed and delivered, neither party shall have any legal\nobligation of any kind whatsoever with respect to such transaction by virtue of this Agreement or any other written or oral expression with respect to\nsuch transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term\n“definitive agreement between the parties concerning a transaction” does not include an executed memorandum of understanding, letter of intent or\nother preliminary agreement.\n7. Compliance with Law.\nYou hereby confirm that you are aware and that your Representatives have been advised that the United States securities laws prohibit any\nperson who has material non-public information about a company from purchasing or selling securities of such company or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities.\n4\n8. Miscellaneous.\n(a) Unless terminated earlier pursuant to the terms hereof, each party’s obligations under this Agreement expire two years from the date\nhereof; provided, however, that, notwithstanding anything to the contrary in this Agreement, if either party decides not to proceed with a\npossible Transaction, your obligations hereunder to keep confidential and not to use (and to cause your Representatives to keep confidential\nand not to use) Evaluation Material shall expire three years from the date hereof.\n(b) It is agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege.\n(c) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any\ncorporation, company, firm, group, limited liability company, partnership, trust, joint venture, governmental entity or individual.\n(d) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without regard to\nany conflict of laws principles.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. In furtherance and not in\nlimitation of the preceding sentence, no subsequent acceptance of any license agreement, terms of use or other similar provisions required for\naccess to any electronic data room shall be deemed to modify any of the provisions of this Agreement. This Agreement shall be binding upon\nand inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement by any\nparty, except to an affiliate or by operation of law, without the prior written consent of the other party shall be void and shall constitute a\nbreach of this Agreement.\n(f) If any part or provision of this Agreement is held to be illegal or unenforceable, the validity of the remaining parts or provisions shall\nnot be affected and the provision held illegal or unenforceable will be construed in a manner to allow enforceability and to effect the intent of\nthe parties as nearly as possible.\n(g) This Agreement may only be amended by a separate writing signed by the Company and you expressly amending this Agreement.\nAny provision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the\nbenefit thereof.\n(h) This Agreement may be executed in two counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same document. Counterparts may be exchanged by facsimile transmission or e-mail of scanned signatures, and such\nelectronically transmitted counterparts shall have the full force and effect of original signatures.\n* * *\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement will constitute our agreement with respect to the subject matter hereof. CONFIRMED AND AGREED TO:\nDANAHER CORPORATION\nBy: /s/  JONATHAN SCHWARZ\nName: Jonathan Schwarz\nTitle: Director, Corporate Development\nDated: 9/3/07\nVery truly yours,\nTEKTRONIX, INC.\nBy: /s/  JAMES F. DALTON\nName: James F. Dalton\nTitle: Senior Vice President	EX-99.(D)(2) 11 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nSeptember 3, 2007\nDanaher Corporation\n2099 Pennsylvania Avenue, NW\n12th Floor\nWashington, D.C. 20006\nAttention: Jonathan Schwarz\nLadies and Gentlemen:\nYou have requested information from Tektronix, Inc. (the "Company") in connection with your consideration of a possible transaction\nregarding the Company (a "Transaction"). The Company may in its sole discretion from time to time furnish or otherwise make available to you\ncertain information about its business in consideration for your agreement to abide by the confidentiality and other terms of this letter agreement\n(this "Agreement").\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction between us all non-public\ninformation concerning the Company that the Company or its Representatives (as hereinafter defined) furnishes or otherwise provides to\nyou or your Representatives in the course of your investigation and whether in oral, written or electronic form, together with any reports,\nanalyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by you or your\nRepresentatives that contain such information (collectively, the "Evaluation Material"); provided, however, that (i) any Evaluation\nMaterial may be disclosed to officers, directors, employees, accountants, legal counsel, investment bankers, commercial banks and other\nfunding sources, consultants, and other representatives (such persons being generally referred to herein as "Representatives") of yours\nwho\nneed\nto know such information for the purpose of evaluating a Transaction between us so long as you cause your Representatives\nto\ntreat the Evaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation\nMaterial may be made to which the Company expressly consents in writing and (iii) any disclosure of the Evaluation Material may be\nmade as outlined in Section 1(d) below. Notwithstanding the above, the term "Evaluation Material" does not include information that\n(i) was or becomes available to you on a non-confidential basis from a source other than the Company or its Representatives, provided\nthat, after making reasonable inquiry, you do not know such other source to be bound by a confidentiality obligation to the Company\nwith respect to such information, (ii) was or becomes available to the public (other than as a result of a breach by you or your\nRepresentatives of this Agreement), (iii) is already in your or your Representatives' possession at the time of its disclosure or (iv) is\nindependently developed by you without reference to any Evaluation Material. You agree to treat (and shall cause your Representatives\nto treat) the Evaluation Material with at least the degree of care that you treat similar materials of your own, or a higher standard of care\nif reasonable under the circumstances.\n(b) Each of the parties hereto agrees that neither it nor any of its Representatives will, without the prior written consent of the other,\ndirectly or indirectly, (i) disclose to any other person (other than its Representatives) the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including\nthe status thereof, (ii) disclose to any other person (other than its Representatives) the existence or the terms of this Agreement, or\n(iii) disclose to any other person (other than its Representatives) that you or\n1\nyour Representatives have received or produced any Evaluation Material; provided, however, that any disclosure prohibited by this\nparagraph may be made to the extent the disclosing party has received the advice of its outside counsel that such disclosure is required to\nbe made by it in order to avoid violating any federal or state law or rules or regulations of a national securities exchange or self-\nregulatory organization to which you are subject; and, provided further, that the disclosing party will notify the other party prior to\nmaking any such disclosure in accordance with the procedures outlined in section (d) below and will otherwise act in accordance with\nsection (d) below (mutatis mutandis where the Company is the disclosing party).\n(c) It is understood that all requests for information, facility tours or management meetings and discussions or questions regarding\nprocedures will be submitted or directed to Sam Britton or Lev Finkelstein at Goldman, Sachs & Co. or such other persons designated\nand notified to you in writing from time to time by the Company (the "Company Designees"). It is understood that Goldman, Sachs\n&\nCo. will arrange for appropriate contacts for due diligence purposes, which contacts will be permitted hereunder.\n(d) In the event that you or any of your Representatives are requested to disclose any Evaluation Material in connection with any\njudicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil\nInvestigation Demand or similar process) or on advice of outside counsel, you will provide the Company with prompt written notice of\nsuch requirement(s) in advance of such disclosure where possible You also agree, to the extent legally permissible and if possible, (i) to\nprovide the Company with a list of any Evaluation Material you or any of your Representatives intend to disclose (and, if applicable, the\ntext of the disclosure language itself) in advance of any such disclosure, and (ii) to cooperate with the Company to the extent it may seek\nto limit such disclosure, including, if requested, taking reasonable steps (at the Company's expense) to resist or avoid any such\ndisclosure. If you have not provided the Company with advance notice of any such disclosure because the provision of such advance\nnotice was not possible, you agree, to the extent legally permissible, to provide the Company with prompt written notice of such\ndisclosure after such disclosure is made, including a list of any Evaluation Material you or any of your Representatives disclosed (and, if\napplicable, the text of the disclosure language itself). Regardless of whether or not such advance notice was possible, you or your\nRepresentatives, as applicable, shall disclose only that portion of the Evaluation Material that you are advised is legally required to be\ndisclosed by outside counsel and shall use commercially reasonable efforts to obtain reliable assurances that confidential treatment will\nbe accorded to any Evaluation Material that you or your Representatives are legally required to disclose after complying with the\nprovisions of this paragraph.\n(e) In the event that either party in its sole discretion determines that it does not wish to proceed with a possible Transaction, upon\nthe request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at your option,\ndestroy all Evaluation Material, including, without limitation expunging to the extent reasonably practicable all Evaluation Material\nfrom any computer, word processor or other device in your possession or in the possession of your Representatives, and you shall certify\nto the Company that you and your Representatives have done so; provided, however, that you and your Representatives need only use\nreasonable efforts to delete Evaluation Material from back-up, archival electronic storage or need not delete Evaluation Material from\nback-up, archival electronic storage, so long as only your or your Representatives' information technology personne responsible for the\nadministration of such storage are able to access such Evaluation Material; provided, further, that if you or your Representatives or any\nsuch information technology personnel discover such Evaluation Material in such storage, you shall (or shall cause your Representatives\nor such information technology personnel to) promptly delete it. Notwithstanding the delivery or destruction of the Evaluation Material\nrequired by this paragraph, any and all duties and obligations existing under this Agreement shall remain in full force and effect during\nthe term of this Agreement.\n2\n2. Non-Solicitation of Senior Employees.\nFor a period of 12 months from the date hereof, each of the parties agrees that it will not solicit for hire any senior employees of the other party\nor any of its subsidiaries with whom it has first come into contact in connection with the Transaction or evaluation thereof; provided, however, that\ngeneral solicitation of employment through general advertisements or other means not specifically targeted to employees of yours or the Company,\nas\napplicable, shall not be deemed a violation of such party's obligation not to solicit; provided, further, that the foregoing shall not apply to (i) any\nperson who approached you without any solicitation or inducement by you or on your behalf or (ii) any person not employed by the Company or any\nof its subsidiaries at the time of the solicitation (mutatis mutandis where the Company is the approached or soliciting party).\n3. Standstill.\n(a) Subject to Section 3(b) of this Agreement, for a period of nine months from the date of this Agreement (the "Standstill Period")\nyou will not (and you will not request or encourage your affiliates or Representatives to on your behalf) without the prior written\npermission of the Company: (i) acquire or offer, seek, propose or agree to acquire, beneficial ownership of more than 1% of the voting\nsecurities of the Company or any consolidated assets of the Company, not counting any purchases of assets in the ordinary course,\n(ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business combination or other similar\ntransaction involving the Company, (iii) make, or in any way participate in, any "solicitation" of "proxies" (as such terms are used in the\nproxy rules of the Securities and Exchange Commission) or consents to vote or seek to advise or influence any person with respect\nto\nthe\nvoting of any voting securities of the Company, (iv) form, join or in any way participate in a "group" (within the meaning of\nSection 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) with respect to any voting securities of the\nCompany, (v) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of the Company\nor (vi) take any action which would reasonably be expected to force the Company to make a public announcement about this Agreement\nor a possible Transaction; provided, however, that nothing contained in this Agreement shall prevent you from making a confidential\nproposal to the Board of Directors of the Company, without public disclosure by you, for a tender offer, exchange offer, merger, other\nbusiness combination, other extraordinary transaction or Combination (as defined in Section 3(b) of this Agreement) involving the\nCompany or for an acquisition of all or a material portion of the common stock or the consolidated assets of the Company, provided\nthat\nyou are specifically invited in writing in advance to do so by the Company's Board of Directors.\n(b) If at any time during the Standstill Period (i) the Company enters into a definitive agreement providing for a Combination or the\nCompany redeems any rights under, or modifies or agrees in writing to modify, a shareholder rights plan to facilitate any Combination,\n(ii) a tender or exchange offer that if consummated would constitute a Combination is made for securities of the Company, (iii) the\nCompany engages in a formal, public "auction" process that includes consideration of one or more transactions that if consummated\nwould constitute a Combination or (iv) a person or "group" (within the meaning of Section 13(d) under the Exchange Act) enters into an\nagreement or commences a proxy solicitation by which the person or "group" would, if successful, elect or acquire the ability to elect a\nmajority of the Board of Directors of the Company, then the restrictions set forth in this Section 3 of this Agreement shall terminate and\nall other provisions of this Agreement shall continue to be in full force and effect in accordance with the terms hereof. A "Combination"\nshall mean a transaction in which (i) a person or "group" (within the meaning of Section 13(d) under the Exchange Act) acquires,\ndirectly or indirectly, securities representing a majority of the voting power of the outstanding securities of the Company or properties or\nassets constituting a majority of the consolidated assets of the Company and its subsidiaries or (ii) in any case not covered by (i), the\nCompany engages in a merger or other business combination such that the holders of voting securities of the Company immediately prior\nto the transaction do not own a majority of the voting power of securities of the resulting entity.\n3\n(c) In the event that the Company has entered into (or amended, modified or waived) or enters into (or amends, modifies or waives)\na confidentiality or "standstill" agreement or similar arrangement with any person in connection with a possible transaction involving a\nCombination that, either as an initial matter or by virtue of such amendment, modification or waiver, (i) contains any "standstill"\nprovision(s) that are, in any respect, materially more favorable to or materially less restrictive of the other party to such agreement than\nthe provision(s) of this Agreement are with respect to you (provided, however, that for the avoidance of doubt any "standstill" restriction\nwith a term shorter than the "standstill" term of this Agreement shall be deemed to be so materially more favorable and materially less\nrestrictive) or (ii) does not include any "standstill" provisions, then this Section 3 of this Agreement shall automatically be deemed to be\namended to conform the provision(s) of this Agreement with such more favorable or less restrictive provision(s) (or, if such\nconfidentiality agreement does not include any "standstill" provisions, to remove the restrictions imposed by this Section 3 of this\nAgreement in their entirety) and the Company shall promptly provide you with written notice of such development including a copy of\nsuch "standstill" provision(s) (which need not identify such other party) or notify you of the absence of any "'standstill" provisions in\nsuch agreement, as the case may be; provided, however, that you may, by written notification, reject any such change and elect to retain\nsome or all of the pre-existing "'standstill" provisions applicable to you.\n4. No Representations or Warranties.\nYou understand and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied,\non which you or your Representatives may rely, as to the accuracy or completeness of the Evaluation Material for your or their purposes and that\nonly those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a Transaction, if any, shall\nhave any legal effect.\n5. Equitable Relief.\nEach party, without prejudice to any rights at law that it may otherwise have, shall be entitled to seek equitable relief, including, without\nlimitation, injunction and specific performance, in the event of any breach of the provisions of this Agreement by the other party. Each party agrees\nthat it will not oppose the granting of such relief on the basis that the other party has an adequate remedy at law.\n6. No Obligation.\nIt is understood and agreed that no contract or agreement providing for any transaction shall be deemed to exist among any of the parties\nhereto unless and until a definitive agreement concerning a transaction has been executed by and delivered to all parties hereto. It is further agreed\nthat, unless and until a definitive agreement between the parties concerning a transaction is executed and delivered, neither party shall have any legal\nobligation of any kind whatsoever with respect to such transaction by virtue of this Agreement or any other written or oral expression with respect to\nsuch transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term\n"definitive agreement between the parties concerning a transaction" does not include an executed memorandum of understanding, letter of intent or\nother preliminary agreement.\n7. Compliance with Law.\nYou hereby confirm that you are aware and that your Representatives have been advised that the United States securities laws prohibit any\nperson who has material non-public information about a company from purchasing or selling securities of such company or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities.\n4\n8. Miscellaneous.\n(a) Unless terminated earlier pursuant to the terms hereof, each party's obligations under this Agreement expire two years from the date\nhereof; provided, however, that, notwithstanding anything to the contrary in this Agreement, if either party decides not to proceed with a\npossible Transaction, your obligations hereunder to keep confidential and not to use (and to cause your Representatives to keep confidential\nand not to use) Evaluation Material shall expire three years from the date hereof.\n(b) It is agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege.\n(c)\nThe\nterm "person" as used in this Agreement shall be broadly interpreted to include, without limitation, the media and\nany\ncorporation, company, firm, group, limited liability company, partnership, trust, joint venture, governmental entity or individual.\n(d) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without regard to\nany conflict of laws principles.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. In furtherance and not in\nlimitation of the preceding sentence, no subsequent acceptance of any license agreement, terms of use or other similar provisions required for\naccess to any electronic data room shall be deemed to modify any of the provisions of this Agreement. This Agreement shall be binding upon\nand inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement by any\nparty, except to an affiliate or by operation of law, without the prior written consent of the other party shall be void and shall constitute a\nbreach of this Agreement.\n(f) If any part or provision of this Agreement is held to be illegal or unenforceable, the validity of the remaining parts or provisions shall\nnot be affected and the provision held illegal or unenforceable will be construed in a manner to allow enforceability and to effect the intent of\nthe parties as nearly as possible.\n(g) This Agreement may only be amended by a separate writing signed by the Company and you expressly amending this Agreement.\nAny provision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the\nbenefit thereof.\n(h) This Agreement may be executed in two counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same document. Counterparts may be exchanged by facsimile transmission or e-mail of scanned signatures, and such\nelectronically transmitted counterparts shall have the full force and effect of original signatures.\n5\nIf you are in agreement with the foregoing, please SO indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nTEKTRONIX, INC.\nBy:\n/s/ JAMES F. DALTON\nName:\nJames F. Dalton\nTitle:\nSenior Vice President\nCONFIRMED AND AGREED TO:\nDANAHER CORPORATION\nBy:\n/s/ JONATHAN SCHWARZ\nName:\nJonathan Schwarz\nTitle:\nDirector, Corporate Development\nDated: 9/3/07\n6	EX-99.(D)(2) 11 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nSeptember 3, 2007\nDanaher Corporation\n2099 Pennsylvania Avenue, NW\n12th Floor\nWashington, D.C . 20006\nAttention: Jonathan Schwarz\nLadies and Gentlemen:\nYou have requested information from Tektronix, Inc. (the “Company”) in connection with your consideration of a possible transaction\nregarding the Company (a “Transaction”). The Company may in its sole discretion from time to time furnish or otherwise make available to you\ncertain information about its business in consideration for your agreement to abide by the confidentiality and other terms of this letter agreement\n(this “Agreement”).\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction between us all non-public\ninformation concerning the Company that the Company or its Representatives (as hereinafter defined) furnishes or otherwise provides to\nyou or your Representatives in the course of your investigation and whether in oral, written or electronic form, together with any reports,\nanalyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by you or your\nRepresentatives that contain such information (collectively, the “Evaluation Material”); provided, however, that (i) any Evaluation\nMaterial may be disclosed to officers, directors, employees, accountants, legal counsel, investment bankers, commercial banks and other\nfunding sources, consultants, and other representatives (such persons being generally referred to herein as “Representatives”) of yours\nwho need to know such information for the purpose of evaluating a Transaction between us so long as you cause your Representatives to\ntreat the Evaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation\nMaterial may be made to which the Company expressly consents in writing and (iii) any disclosure of the Evaluation Material may be\nmade as outlined in Section 1(d) below. Notwithstanding the above, the term “Evaluation Material” does not include information that\n(i) was or becomes available to you on a non-confidential basis from a source other than the Company or its Representatives, provided\nthat, after making reasonable inquiry, you do not know such other source to be bound by a confidentiality obligation to the Company\nwith respect to such information, (ii) was or becomes available to the public (other than as a result of a breach by you or your\nRepresentatives of this Agreement), (iii) is already in your or your Representatives’ possession at the time of its disclosure or (iv) is\nindependently developed by you without reference to any Evaluation Material. You agree to treat (and shall cause your Representatives\nto treat) the Evaluation Material with at least the degree of care that you treat similar materials of your own, or a higher standard of care\nif reasonable under the circumstances.\n(b) Each of the parties hereto agrees that neither it nor any of its Representatives will, without the prior written consent of the other,\ndirectly or indirectly, (i) disclose to any other person (other than its Representatives) the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including\nthe status thereof, (ii) disclose to any other person (other than its Representatives) the existence or the terms of this Agreement, or\n(iii) disclose to any other person (other than its Representatives) that you or\n1\nyour Representatives have received or produced any Evaluation Material; provided, however, that any disclosure prohibited by this\nparagraph may be made to the extent the disclosing party has received the advice of its outside counsel that such disclosure is required to\nbe made by it in order to avoid violating any federal or state law or rules or regulations of a national securities exchange or self-\nregulatory organization to which you are subject; and, provided further, that the disclosing party will notify the other party prior to\nmaking any such disclosure in accordance with the procedures outlined in section (d) below and will otherwise act in accordance with\nsection (d) below (mutatis mutandis where the Company is the disclosing party).\n(c) It is understood that all requests for information, facility tours or management meetings and discussions or questions regarding\nprocedures will be submitted or directed to Sam Britton or Lev Finkelstein at Goldman, Sachs & Co. or such other persons designated\nand notified to you in writing from time to time by the Company (the “Company Designees”). It is understood that Goldman, Sachs &\nCo. will arrange for appropriate contacts for due diligence purposes, which contacts will be permitted hereunder.\n(d) In the event that you or any of your Representatives are requested to disclose any Evaluation Material in connection with any\njudicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil\nInvestigation Demand or similar process) or on advice of outside counsel, you will provide the Company with prompt written notice of\nsuch requirement(s) in advance of such disclosure where possible. You also agree, to the extent legally permissible and if possible, (i) to\nprovide the Company with a list of any Evaluation Material you or any of your Representatives intend to disclose (and, if applicable, the\ntext of the disclosure language itself) in advance of any such disclosure, and (ii) to cooperate with the Company to the extent it may seek\nto limit such disclosure, including, if requested, taking reasonable steps (at the Company’s expense) to resist or avoid any such\ndisclosure. If you have not provided the Company with advance notice of any such disclosure because the provision of such advance\nnotice was not possible, you agree, to the extent legally permissible, to provide the Company with prompt written notice of such\ndisclosure after such disclosure is made, including a list of any Evaluation Material you or any of your Representatives disclosed (and, if\napplicable, the text of the disclosure language itself). Regardless of whether or not such advance notice was possible, you or your\nRepresentatives, as applicable, shall disclose only that portion of the Evaluation Material that you are advised is legally required to be\ndisclosed by outside counsel and shall use commercially reasonable efforts to obtain reliable assurances that confidential treatment will\nbe accorded to any Evaluation Material that you or your Representatives are legally required to disclose after complying with the\nprovisions of this paragraph.\n(e) In the event that either party in its sole discretion determines that it does not wish to proceed with a possible Transaction, upon\nthe request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at your option,\ndestroy all Evaluation Material, including, without limitation, expunging to the extent reasonably practicable all Evaluation Material\nfrom any computer, word processor or other device in your possession or in the possession of your Representatives, and you shall certify\nto the Company that you and your Representatives have done so; provided, however, that you and your Representatives need only use\nreasonable efforts to delete Evaluation Material from back-up, archival electronic storage or need not delete Evaluation Material from\nback-up, archival electronic storage, so long as only your or your Representatives’ information technology personnel responsible for the\nadministration of such storage are able to access such Evaluation Material; provided, further, that if you or your Representatives or any\nsuch information technology personnel discover such Evaluation Material in such storage, you shall (or shall cause your Representatives\nor such information technology personnel to) promptly delete it. Notwithstanding the delivery or destruction of the Evaluation Material\nrequired by this paragraph, any and all duties and obligations existing under this Agreement shall remain in full force and effect during\nthe term of this Agreement.\n2\n2. Non-Solicitation of Senior Employees.\nFor a period of 12 months from the date hereof, each of the parties agrees that it will not solicit for hire any senior employees of the other party\nor any of its subsidiaries with whom it has first come into contact in connection with the Transaction or evaluation thereof; provided, however, that\ngeneral solicitation of employment through general advertisements or other means not specifically targeted to employees of yours or the Company,\nas applicable, shall not be deemed a violation of such party’s obligation not to solicit; provided, further, that the foregoing shall not apply to (i) any\nperson who approached you without any solicitation or inducement by you or on your behalf or (ii) any person not employed by the Company or any\nof its subsidiaries at the time of the solicitation (mutatis mutandis where the Company is the approached or soliciting party).\n3. Standstill.\n(a) Subject to Section 3(b) of this Agreement, for a period of nine months from the date of this Agreement (the “Standstill Period”)\nyou will not (and you will not request or encourage your affiliates or Representatives to on your behalf) without the prior written\npermission of the Company: (i) acquire or offer, seek, propose or agree to acquire, beneficial ownership of more than 1% of the voting\nsecurities of the Company or any consolidated assets of the Company, not counting any purchases of assets in the ordinary course,\n(ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business combination or other similar\ntransaction involving the Company, (iii) make, or in any way participate in, any “solicitation” of “proxies” (as such terms are used in the\nproxy rules of the Securities and Exchange Commission) or consents to vote or seek to advise or influence any person with respect to the\nvoting of any voting securities of the Company, (iv) form, join or in any way participate in a “group” (within the meaning of\nSection 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of the\nCompany, (v) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of the Company\nor (vi) take any action which would reasonably be expected to force the Company to make a public announcement about this Agreement\nor a possible Transaction; provided, however, that nothing contained in this Agreement shall prevent you from making a confidential\nproposal to the Board of Directors of the Company, without public disclosure by you, for a tender offer, exchange offer, merger, other\nbusiness combination, other extraordinary transaction or Combination (as defined in Section 3(b) of this Agreement) involving the\nCompany or for an acquisition of all or a material portion of the common stock or the consolidated assets of the Company, provided that\nyou are specifically invited in writing in advance to do so by the Company’s Board of Directors.\n(b) If at any time during the Standstill Period (i) the Company enters into a definitive agreement providing for a Combination or the\nCompany redeems any rights under, or modifies or agrees in writing to modify, a shareholder rights plan to facilitate any Combination,\n(ii) a tender or exchange offer that if consummated would constitute a Combination is made for securities of the Company, (iii) the\nCompany engages in a formal, public “auction” process that includes consideration of one or more transactions that if consummated\nwould constitute a Combination or (iv) a person or “group” (within the meaning of Section 13(d) under the Exchange Act) enters into an\nagreement or commences a proxy solicitation by which the person or “group” would, if successful, elect or acquire the ability to elect a\nmajority of the Board of Directors of the Company, then the restrictions set forth in this Section 3 of this Agreement shall terminate and\nall other provisions of this Agreement shall continue to be in full force and effect in accordance with the terms hereof. A “Combination”\nshall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d) under the Exchange Act) acquires,\ndirectly or indirectly, securities representing a majority of the voting power of the outstanding securities of the Company or properties or\nassets constituting a majority of the consolidated assets of the Company and its subsidiaries or (ii) in any case not covered by (i), the\nCompany engages in a merger or other business combination such that the holders of voting securities of the Company immediately prior\nto the transaction do not own a majority of the voting power of securities of the resulting entity.\n3\n(c) In the event that the Company has entered into (or amended, modified or waived) or enters into (or amends, modifies or waives)\na confidentiality or “standstill” agreement or similar arrangement with any person in connection with a possible transaction involving a\nCombination that, either as an initial matter or by virtue of such amendment, modification or waiver, (i) contains any “standstill”\nprovision(s) that are, in any respect, materially more favorable to or materially less restrictive of the other party to such agreement than\nthe provision(s) of this Agreement are with respect to you (provided, however, that for the avoidance of doubt any “standstill” restriction\nwith a term shorter than the “standstill” term of this Agreement shall be deemed to be so materially more favorable and materially less\nrestrictive) or (ii) does not include any “standstill” provisions, then this Section 3 of this Agreement shall automatically be deemed to be\namended to conform the provision(s) of this Agreement with such more favorable or less restrictive provision(s) (or, if such\nconfidentiality agreement does not include any “standstill” provisions, to remove the restrictions imposed by this Section 3 of this\nAgreement in their entirety) and the Company shall promptly provide you with written notice of such development including a copy of\nsuch “standstill” provision(s) (which need not identify such other party) or notify you of the absence of any “standstill” provisions in\nsuch agreement, as the case may be; provided, however, that you may, by written notification, reject any such change and elect to retain\nsome or all of the pre-existing “standstill” provisions applicable to you.\n4. No Representations or Warranties.\nYou understand and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied,\non which you or your Representatives may rely, as to the accuracy or completeness of the Evaluation Material for your or their purposes and that\nonly those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a Transaction, if any, shall\nhave any legal effect.\n5. Equitable Relief.\nEach party, without prejudice to any rights at law that it may otherwise have, shall be entitled to seek equitable relief, including, without\nlimitation, injunction and specific performance, in the event of any breach of the provisions of this Agreement by the other party. Each party agrees\nthat it will not oppose the granting of such relief on the basis that the other party has an adequate remedy at law.\n6. No Obligation.\nIt is understood and agreed that no contract or agreement providing for any transaction shall be deemed to exist among any of the parties\nhereto unless and until a definitive agreement concerning a transaction has been executed by and delivered to all parties hereto. It is further agreed\nthat, unless and until a definitive agreement between the parties concerning a transaction is executed and delivered, neither party shall have any legal\nobligation of any kind whatsoever with respect to such transaction by virtue of this Agreement or any other written or oral expression with respect to\nsuch transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term\n“definitive agreement between the parties concerning a transaction” does not include an executed memorandum of understanding, letter of intent or\nother preliminary agreement.\n7. Compliance with Law.\nYou hereby confirm that you are aware and that your Representatives have been advised that the United States securities laws prohibit any\nperson who has material non-public information about a company from purchasing or selling securities of such company or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities.\n4\n8. Miscellaneous.\n(a) Unless terminated earlier pursuant to the terms hereof, each party’s obligations under this Agreement expire two years from the date\nhereof; provided, however, that, notwithstanding anything to the contrary in this Agreement, if either party decides not to proceed with a\npossible Transaction, your obligations hereunder to keep confidential and not to use (and to cause your Representatives to keep confidential\nand not to use) Evaluation Material shall expire three years from the date hereof.\n(b) It is agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege.\n(c) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any\ncorporation, company, firm, group, limited liability company, partnership, trust, joint venture, governmental entity or individual.\n(d) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without regard to\nany conflict of laws principles.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. In furtherance and not in\nlimitation of the preceding sentence, no subsequent acceptance of any license agreement, terms of use or other similar provisions required for\naccess to any electronic data room shall be deemed to modify any of the provisions of this Agreement. This Agreement shall be binding upon\nand inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement by any\nparty, except to an affiliate or by operation of law, without the prior written consent of the other party shall be void and shall constitute a\nbreach of this Agreement.\n(f) If any part or provision of this Agreement is held to be illegal or unenforceable, the validity of the remaining parts or provisions shall\nnot be affected and the provision held illegal or unenforceable will be construed in a manner to allow enforceability and to effect the intent of\nthe parties as nearly as possible.\n(g) This Agreement may only be amended by a separate writing signed by the Company and you expressly amending this Agreement.\nAny provision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the\nbenefit thereof.\n(h) This Agreement may be executed in two counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same document. Counterparts may be exchanged by facsimile transmission or e-mail of scanned signatures, and such\nelectronically transmitted counterparts shall have the full force and effect of original signatures.\n*\n*\n*\n5\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nTEKTRONIX, INC.\nBy:\n/s/ JAMES F. DALTON\nName:\nJames F. Dalton\nTitle:\nSenior Vice President\nCONFIRMED AND AGREED TO:\nDANAHER CORPORATION\nBy:\n/s/ JONATHAN SCHWARZ\nName:\nJonathan Schwarz\nTitle:\nDirector, Corporate Development\nDated: 9/3/07\n6
6a36b4507a0e2e9f93f2159e743adecd.pdf	effective_date jurisdiction party term	EX-99 .2 3 exhibit992confidentialitya.htm EXHIBIT 99.2\nExhibit 99.2\nEMPLOYEE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made as of December 16, 2014, by the undersigned employee (hereinafter called “Employee”) of American Realty\nCapital Properties, Inc. (together with all other affiliated and/or related entities of the foregoing, the “Employer'' or the “Company”) a Maryland\ncorporation.\nWHEREAS, prior to employment by Employer, Employee understood and agreed that an agreement containing restrictive and other provisions\nof the type hereinafter set forth would be entered into by Employee as an ancillary part of the taking of such employment and Employee is in fact\nherein entering into such an agreement;\nWHEREAS, Employee understands that at various times Employee may be performing services for the benefit of any one or more of the entities\ncomprising the Employer even though Employee may actually be an employee of only one or less than all of such entities or individuals;\nWHEREAS, Employee understands and agrees that Employee will be an employee at will without employment or any right of employment for\nany fixed or particular time period or term notwithstanding that Employee's compensation arrangements now or in the future may be based upon\na stated time period or time basis which will not in any way constitute any agreement or understanding that Employee is or will be employed for\nthat or any other particular time period or for any fixed term, and at all times Employee will remain and be, in fact, an employee at will.\nNOW, THEREFORE, with intent to be legally bound, as an ancillary part of the taking of said employment and in consideration thereof,\nEmployee agrees as follows:\n1. CONFIDENTIAL AND PROPRIETARY INFORMATION OF EMPLOYER\nThe Employee recognizes and acknowledges that certain assets of the Employer constitute Confidential Information. The term “Confidential\nInformation” as used in this Agreement shall mean all information which is known only to the Employee or the Employer, other employees of\nthe Employer, or others in a confidential relationship with the Employer, and relating to the Employer's business including, without limitation,\ninformation regarding clients, customers, pricing policies, methods of operation, proprietary Employer programs, sales products, profits, costs,\nmarkets, key personnel, formulae, product applications, technical processes, and trade secrets, as such information may exist from time to time,\nwhich the Employee acquired or obtained by virtue of work performed for the Employer, or which the Employee may acquire or may have\nacquired knowledge of during the performance of said work. The Employee shall not, during or after the term of Employee's employment with\nthe Company (the “Term”), disclose all or any part of the Confidential information to any person, firm, corporation, association, or any other\nentity for any reason or purpose whatsoever, directly or indirectly, except as may be required pursuant to his employment hereunder, unless and\nuntil such Confidential Information becomes publicly available other than as a consequence of the breach by the Employee of his confidentiality\nobligations hereunder. In the event of the termination of his employment, whether voluntary or involuntary and whether by the Employer or the\nEmployee, the Employee shall deliver to the Employer all documents and data pertaining to the Confidential Information and shall not take with\nhim any documents or data of any kind or any reproductions (in whole or in part) or extracts of any items relating to the Confidential\nInformation.\nIn the event that the Employee receives a request or is required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose all or any part of 1he Confidential Information, the Employee agrees to (a) promptly notify the Employer\nin writing of the existence, terms and circumstances surrounding such request or requirement, (b) consult with the Employer on the advisability\nof taking legally available steps to resist or narrow such request or requirement, and (c) assist the Employer in seeking a protective order or other\nappropriate remedy. In the event that such protective order or other remedy is not obtained or that the Employer waives compliance with the\nprovisions hereof, the Employee shall not be liable for such disclosure unless disclosure to any such tribunal was caused by or resulted from a\nprevious disclosure by the Employee not permitted by this Agreement.\n2. INTELLECTUAL PROPERTY OF EMPLOYER\nDuring the Term, the Employee shall promptly disclose to the Employer or any successor or assign, and grant to the Employer and its successors\nand assigns without any separate remuneration or compensation other than that received by him in the course of his employment, his entire right,\ntitle and interest in and to any and all inventions, developments, discoveries, models, or any other intellectual property of any type or nature\nwhatsoever (“Intellectual Property”), whether developed by him during or after business hours, or alone or in connection with others, that is in\nany way related to the business of the Employer, its successors or assigns. This provision shall not apply to books or articles authored by the\nEmployee during non-work hours, consistent with his\nobligations under this Agreement, so long all such books or articles (a) are not funded in whole or in party by the Employer, and (b) do not\ncontain any Confidential Information or Intellectual Property of the Employer. The Employee agrees, at the Employer's expense, to take all steps\nnecessary or proper to vest title to all such Intellectual Property in the Employer, and cooperate fully and assist the Employer in any litigation or\nother proceedings involving any such Intellectual Property.\n3. NON-COMPETITION BY EMPLOYEE AND RESTRICTIVE COVENANT\nDuring the Term and for a period of nine (9) calendar months after the termination of the Employee’s employment for any reason (the “Restricted\nPeriod”), the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer, stockholder, partner or in any other\ncapacity whatsoever: engage or assist others who engage, in whole or in part, in any business or enterprise that is directly competitive with (x)\nthe business that the Company engaged in during the period of the Employee's employment with the Company, currently net leased real estate\ninvestments, or (y) any product, service or business as to which the Company has actively begun preparing to develop at the time of Employee's\nseparation from the Company.\nDuring the Term and the Restricted Period, the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer,\nstockholder, partner or in any other capacity whatsoever: (a) have any contact with any investor, advisor or registered financial representative\nwhich was an investor, or advisor or registered financial representative of an investor, of the Company during the period of my employment or\nwhich the Company was actively pursuing as a potential investor, advisor or registered financial representative of a potential investor at the time\nmy employment terminates, for the purpose of pursuing activities with that investor, advisor or registered financial representative which are\ncompetitive with or similar to the relationship between the Company and that investor, or (b) without the prior consent of the Board, employ or\nsolicit the employment of, or assist others in employing or soliciting the employment of, any individual employed by the Company at any time\nwhile the Employee was also employed.\nNothing in this Section 3 shall prohibit Employee from making any passive investment in a public company, or where he is the owner of five\npercent (5%) or less of the issued and outstanding voting securities of any entity, provided such ownership does not result in his being obligated\nor required to devote any managerial efforts. The Employee agrees to secure prior written consent from the Chief Compliance Officer of the\nCompany for any outside business activity described in the Written Supervisory Procedures.\nThe Employee agrees that the restraints imposed upon him pursuant to this Section 3 are necessary for the reasonable and proper protection of\nthe Company and its subsidiaries and affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of\ntime and geographic area. The parties further agree that in the event that any provision of this Section 3 shall be determined by any court of\ncompetent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too greatly a\nrange of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n4. EMPLOYER PROPERTY\nEmployee shall be responsible for the safekeeping of any equipment or property provided by Employer, including but not limited to furniture,\nsupplies, records, documents, cellular phones, laptop computers, desktop computers, printers, fax machines, answering machines, computer\nsoftware, manuals, etc., and shall reimburse Employer or replace the equipment or property if any is lost or stolen while in Employee's\npossession.\nUpon termination of Employee's employment with Employer, Employee shall turn over to Employer upon demand all such equipment and\nproperty provided by Employer. Employee must also return to Employer all Employer files, records and keys issued.\n5. INJUNCTIVE RELIEF\nEmployee and Employer agree that any breach by Employee of the covenants and agreements contained in any Section of this Agreement will\nresult in irreparable injury to Employer for which money damages could not adequately compensate Employer and therefore, in the event of any\nsuch breach, Employer shall be entitled (in addition to any other rights or remedies which Employer may have at law or in equity, including\nmoney damages) to have an injunction issued by any competent court of equity enjoining and restraining Employee and/or any other person\ninvolved therein from continuing such breach. If Employer resorts to the courts for the enforcement of any of the covenants or agreements\ncontained herein, or if such covenants or agreements are otherwise the subject of litigation between the parties, Employee shall be liable for\nEmployer's reasonable attorneys' fees and legal expenses, and then any limiting term of such covenants and agreements shall be extended for a\nperiod of time equal to the period of such breach, which extension shall commence on the later of (a) the date of which the original (unextended)\nterm of such\ncovenants and agreements is scheduled to terminate or (b) the date that the final court (without further right of appeal) enforces such covenant or\nagreement.\n6. CONTINUING EFFECT OF OTHER PROVISIONS IN EVENT OF PARTIAL INVALIDITY\nEmployee further agrees that a breach of any agreement, whether written or oral, between Employer and Employee or any other actionable\nconduct by Employee, or any defense, set-off or counterclaim by Employee against Employer, or any other related rights Employee has against\nEmployer will have no effect on any or all of the terms and provisions of the restrictive covenants and other agreements contained herein or on\ntheir enforceability and validity. If any portion of the covenants or agreements contained in this Agreement, or the application thereof, is\nconstrued to be invalid or unenforceable then the other portions of such covenants or agreements or the application thereof shall not be affected\nand shall be given full force and effect without regard to the invalid or unenforceable portions. If any covenant or agreement therein is held to be\nunenforceable because of the area covered or the duration thereof, such covenant or agreement shall then be enforceable in its reduced form. If\nany of the provisions hereof violate or contravene the applicable laws of any jurisdiction, such provisions shall be deemed not to be a part of this\nAgreement with respect to such jurisdiction only, and the remainder of this Agreement shall remain in full force and effect in such jurisdiction\nand this entire Agreement shall remain in full force and effect in all other jurisdictions.\n7. BENEFIT TO SUCCESSORS OF EMPLOYER AND APPLICABLE LAW\nThis Agreement shall inure to the benefit of Employer and its successors and assigns. If any action at law or in equity is necessary to enforce or\ninterpret the terms of this Agreement, Employer shall be entitled to reasonable attorneys' fees, costs, and necessary disbursements if Employer\nprevails in such action. This Agreement shall be construed and enforced in accordance with the laws of the New York State. If required by the\ncontext of this Agreement, singular language shall be construed as plural, plural language shall be construed as singular, and the gender of\npersonal pronouns shall be construed as masculine, feminine or neuter. This Agreement supplements and does not supersede and is in no way in\ndiminution of any other agreements(s), entered into by Employee regarding the subject matter hereof or containing provisions the same as or\nsimilar in nature hereto, and this Agreement and all such agreements shall remain in full force and effect, independent of one another, and the\nprovisions most restrictive to Employee of this Agreement and all such agreements shall be the controlling provisions that are applicable to\nEmployee.\nEmployee represents, warrants and covenants that employee is not a party to or bound by any agreement with any third person or entity and/or is\nnot otherwise bound by law which would in any way restrict, inhibit or limit Employee's ability to fully render and perform all services requested\nby Employer, including but not limited to, fully contacting and dealing with all customers and suppliers in all marketplaces, fully advising\nEmployer about processes and methods, fully using and disclosing all information about suppliers, customers, processes and methods of which\nEmployee may have knowledge, and keeping Employer fully informed of such, and/or which would in any way restrict, inhibit or limit\nEmployee’s ability to fully compete with any third person or entity seeking in any way to restrict, inhibit or limit Employee from fully rendering\nand performing all services requested by Employer, including but not limited to, those set forth above, and/or seeking damages as a result\nthereof. Employee hereby agrees to indemnify and hold harmless Employer from any and all claims, liabilities, losses, damages and/or expenses\nwith respect thereto including but not limited to reasonable attorneys' fees. Employee hereby acknowledges that he fully understands that\nEmployer's employment of Employee is conditioned upon Employee's ability to fully render and perform all services requested of him without\nany restriction, hindrance or limit by any third person or entity.\nIN WITNESS WHEREOF, Employee has executed this Agreement with intent to be legally bound as of the day and year first above written.\nEMPLOYEE:\n/s/ Gavin Brandon\nBy: Gavin Brandon	EX-99.2 3 exhibit992confidentialitya.htm EXHIBIT 99.2\nExhibit 99.2\nEMPLOYEE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made as of December 16, 2014, by the undersigned employee (hereinafter called “Employee”) of American Realty\nCapital Properties, Inc. (together with all other affiliated and/or related entities of the foregoing, the “Employer" or the “Company”) a Maryland\ncorporation.\nWHEREAS, prior to employment by Employer, Employee understood and agreed that an agreement containing restrictive and other provisions\nof the type hereinafter set forth would be entered into by Employee as an ancillary part of the taking of such employment and Employee is in fact\nherein entering into such an agreement;\nWHEREAS, Employee understands that at various times Employee may be performing services for the benefit of any one or more of the entities\ncomprising the Employer even though Employee may actually be an employee of only one or less than all of such entities or individuals;\nWHEREAS, Employee understands and agrees that Employee will be an employee at will without employment or any right of employment for\nany fixed or particular time period or term notwithstanding that Employee's compensation arrangements now or in the future may be based upon\na stated time period or time basis which will not in any way constitute any agreement or understanding that Employee is or will be employed for\nthat or any other particular time period or for any fixed term, and at all times Employee will remain and be, in fact, an employee at will.\nNOW, THEREFORE, with intent to be legally bound, as an ancillary part of the taking of said employment and in consideration thereof,\nEmployee agrees as follows:\n1. CONFIDENTIAL AND PROPRIETARY INFORMATION OF EMPLOYER\nThe Employee recognizes and acknowledges that certain assets of the Employer constitute Confidential Information. The term “Confidential\nInformation” as used in this Agreement shall mean all information which is known only to the Employee or the Employer, other employees of\nthe Employer, or others in a confidential relationship with the Employer, and relating to the Employer's business including, without limitation,\ninformation regarding clients, customers, pricing policies, methods of operation, proprietary Employer programs, sales products, profits, costs,\nmarkets, key personnel, formulae, product applications, technical processes, and trade secrets, as such information may exist from time to time,\nwhich the Employee acquired or obtained by virtue of work performed for the Employer, or which the Employee may acquire or may have\nacquired knowledge of during the performance of said work. The Employee shall not, during or after the term of Employee's employment with\nthe Company (the “Term”), disclose all or any part of the Confidential information to any person, firm, corporation, association, or any other\nentity for any reason or purpose whatsoever, directly or indirectly, except as may be required pursuant to his employment hereunder, unless and\nuntil such Confidential Information becomes publicly available other than as a consequence of the breach by the Employee of his confidentiality\nobligations hereunder. In the event of the termination of his employment, whether voluntary or involuntary and whether by the Employer or the\nEmployee, the Employee shall deliver to the Employer all documents and data pertaining to the Confidential Information and shall not take with\nhim any documents or data of any kind or any reproductions (in whole or in part) or extracts of any items relating to the Confidential\nInformation.\nIn the event that the Employee receives a request or is required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose all or any part of 1he Confidential Information, the Employee agrees to (a) promptly notify the Employer\nin writing of the existence, terms and circumstances surrounding such request or requirement, (b) consult with the Employer on the advisability\nof taking legally available steps to resist or narrow such request or requirement, and (c) assist the Employer in seeking a protective order or other\nappropriate remedy. In the event that such protective order or other remedy is not obtained or that the Employer waives compliance with the\nprovisions hereof, the Employee shall not be liable for such disclosure unless disclosure to any such tribunal was caused by or resulted from a\nprevious disclosure by the Employee not permitted by this Agreement.\n2. INTELLECTUAL PROPERTY OF EMPLOYER\nDuring the Term, the Employee shall promptly disclose to the Employer or any successor or assign, and grant to the Employer and its successors\nand assigns without any separate remuneration or compensation other than that received by him in the course of his employment, his entire right,\ntitle and interest in and to any and all inventions, developments, discoveries, models, or any other intellectual property of any type or nature\nwhatsoever (“Intellectual Property”), whether developed by him during or after business hours, or alone or in connection with others, that is in\nany way related to the business of the Employer, its successors or assigns. This provision shall not apply to books or articles authored by the\nEmployee during non-work hours, consistent with his\nobligations under this Agreement, so long all such books or articles (a) are not funded in whole or in party by the Employer, and (b) do not\ncontain any Confidential Information or Intellectual Property of the Employer. The Employee agrees, at the Employer's expense, to take all steps\nnecessary or proper to vest title to all such Intellectual Property in the Employer, and cooperate fully and assist the Employer in any litigation or\nother proceedings involving any such Intellectual Property.\n3. NON-COMPETITION BY EMPLOYEE AND RESTRICTIVE COVENANT\nDuring the Term and for a period of nine (9) calendar months after the termination of the Employee’s employment for any reason (the “Restricted\nPeriod”), the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer, stockholder, partner or in any other\ncapacity whatsoever: engage or assist others who engage, in whole or in part, in any business or enterprise that is directly competitive with (x)\nthe business that the Company engaged in during the period of the Employee's employment with the Company, currently net leased real estate\ninvestments, or (y) any product, service or business as to which the Company has actively begun preparing to develop at the time of Employee's\nseparation from the Company.\nDuring the Term and the Restricted Period, the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer,\nstockholder, partner or in any other capacity whatsoever: (a) have any contact with any investor, advisor or registered financial representative\nwhich was an investor, or advisor or registered financial representative of an investor, of the Company during the period of my employment or\nwhich the Company was actively pursuing as a potential investor, advisor or registered financial representative of a potential investor at the time\nmy employment terminates, for the purpose of pursuing activities with that investor, advisor or registered financial representative which are\ncompetitive with or similar to the relationship between the Company and that investor, or (b) without the prior consent of the Board, employ or\nsolicit the employment of, or assist others in employing or soliciting the employment of, any individual employed by the Company at any time\nwhile the Employee was also employed.\nNothing in this Section 3 shall prohibit Employee from making any passive investment in a public company, or where he is the owner of five\npercent (5%) or less of the issued and outstanding voting securities of any entity, provided such ownership does not result in his being obligated\nor required to devote any managerial efforts. The Employee agrees to secure prior written consent from the Chief Compliance Officer of the\nCompany for any outside business activity described in the Written Supervisory Procedures.\nThe Employee agrees that the restraints imposed upon him pursuant to this Section 3 are necessary for the reasonable and proper protection of\nthe Company and its subsidiaries and affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of\ntime and geographic area. The parties further agree that in the event that any provision of this Section 3 shall be determined by any court of\ncompetent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too greatly a\nrange of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n4. EMPLOYER PROPERTY\nEmployee shall be responsible for the safekeeping of any equipment or property provided by Employer, including but not limited to furniture,\nsupplies, records, documents, cellular phones, laptop computers, desktop computers, printers, fax machines, answering machines, computer\nsoftware, manuals, etc., and shall reimburse Employer or replace the equipment or property if any is lost or stolen while in Employee's\npossession.\nUpon termination of Employee's employment with Employer, Employee shall turn over to Employer upon demand all such equipment and\nproperty provided by Employer. Employee must also return to Employer all Employer files, records and keys issued.\n5. INJUNCTIVE RELIEF\nEmployee and Employer agree that any breach by Employee of the covenants and agreements contained in any Section of this Agreement will\nresult in irreparable injury to Employer for which money damages could not adequately compensate Employer and therefore, in the event of any\nsuch breach, Employer shall be entitled (in addition to any other rights or remedies which Employer may have at law or in equity, including\nmoney damages) to have an injunction issued by any competent court of equity enjoining and restraining Employee and/or any other person\ninvolved therein from continuing such breach. If Employer resorts to the courts for the enforcement of any of the covenants or agreements\ncontained herein, or if such covenants or agreements are otherwise the subject of litigation between the parties, Employee shall be liable for\nEmployer's reasonable attorneys' fees and legal expenses, and then any limiting term of such covenants and agreements shall be extended for a\nperiod of time equal to the period of such breach, which extension shall commence on the later of (a) the date of which the original (unextended)\nterm of such\ncovenants and agreements is scheduled to terminate or (b) the date that the final court (without further right of appeal) enforces such covenant or\nagreement.\n6. CONTINUING EFFECT OF OTHER PROVISIONS IN EVENT OF PARTIAL INVALIDITY\nEmployee further agrees that a breach of any agreement, whether written or oral, between Employer and Employee or any other actionable\nconduct by Employee, or any defense, set-off or counterclaim by Employee against Employer, or any other related rights Employee has against\nEmployer will have no effect on any or all of the terms and provisions of the restrictive covenants and other agreements contained herein or on\ntheir enforceability and validity. If any portion of the covenants or agreements contained in this Agreement, or the application thereof, is\nconstrued to be invalid or unenforceable then the other portions of such covenants or agreements or the application thereof shall not be affected\nand shall be given full force and effect without regard to the invalid or unenforceable portions. If any covenant or agreement therein is held to be\nunenforceable because of the area covered or the duration thereof, such covenant or agreement shall then be enforceable in its reduced form. If\nany of the provisions hereof violate or contravene the applicable laws of any jurisdiction, such provisions shall be deemed not to be a part of this\nAgreement with respect to such jurisdiction only, and the remainder of this Agreement shall remain in full force and effect in such jurisdiction\nand this entire Agreement shall remain in full force and effect in all other jurisdictions.\n7. BENEFIT TO SUCCESSORS OF EMPLOYER AND APPLICABLE LAW\nThis Agreement shall inure to the benefit of Employer and its successors and assigns. If any action at law or in equity is necessary to enforce or\ninterpret the terms of this Agreement, Employer shall be entitled to reasonable attorneys' fees, costs, and necessary disbursements if Employer\nprevails in such action. This Agreement shall be construed and enforced in accordance with the laws of the New York State. If required by the\ncontext of this Agreement, singular language shall be construed as plural, plural language shall be construed as singular, and the gender of\npersonal pronouns shall be construed as masculine, feminine or neuter. This Agreement supplements and does not supersede and is in no way in\ndiminution of any other agreements(s), entered into by Employee regarding the subject matter hereof or containing provisions the same as or\nsimilar in nature hereto, and this Agreement and all such agreements shall remain in full force and effect, independent of one another, and the\nprovisions most restrictive to Employee of this Agreement and all such agreements shall be the controlling provisions that are applicable to\nEmployee.\nEmployee represents, warrants and covenants that employee is not a party to or bound by any agreement with any third person or entity and/or is\nnot otherwise bound by law which would in any way restrict, inhibit or limit Employee's ability to fully render and perform all services requested\nby Employer, including but not limited to, fully contacting and dealing with all customers and suppliers in all marketplaces, fully advising\nEmployer about processes and methods, fully using and disclosing all information about suppliers, customers, processes and methods of which\nEmployee may have knowledge, and keeping Employer fully informed of such, and/or which would in any way restrict, inhibit or limit\nEmployee’s ability to fully compete with any third person or entity seeking in any way to restrict, inhibit or limit Employee from fully rendering\nand performing all services requested by Employer, including but not limited to, those set forth above, and/or seeking damages as a result\nthereof. Employee hereby agrees to indemnify and hold harmless Employer from any and all claims, liabilities, losses, damages and/or expenses\nwith respect thereto including but not limited to reasonable attorneys' fees. Employee hereby acknowledges that he fully understands that\nEmployer's employment of Employee is conditioned upon Employee's ability to fully render and perform all services requested of him without\nany restriction, hindrance or limit by any third person or entity.\nIN WITNESS WHEREOF, Employee has executed this Agreement with intent to be legally bound as of the day and year first above written.\nEMPLOYEE:\n/s/ Gavin Brandon\nBy: Gavin Brandon	EX-99.2 exhibit992confidentialitya.htm EXHIBIT 99.2\nExhibit 99.2\nEMPLOYEE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made as of December 16, 2014, by the undersigned employee (hereinafter called "Employee") of American Realty\nCapital Properties, Inc. (together with all other affiliated and/or related entities of the foregoing, the "Employer" or the "Company") a Maryland\ncorporation.\nWHEREAS, prior to employment by Employer, Employee understood and agreed that an agreement containing restrictive and other provisions\nof the type hereinafter set forth would be entered into by Employee as an ancillary part of the taking of such employment and Employee is in fact\nherein entering into such an agreement;\nWHEREAS, Employee understands that at various times Employee may be performing services for the benefit of any one or more of the entities\ncomprising the Employer even though Employee may actually be an employee of only one or less than all of such entities or individuals;\nWHEREAS, Employee understands and agrees that Employee will be an employee at will without employment or any right of employment for\nany fixed or particular time period or term notwithstanding that Employee's compensation arrangements now or in the future may be based upon\na stated time period or time basis which will not in any way constitute any agreement or understanding that Employee is or will be employed for\nthat or any other particular time period or for any fixed term, and at all times Employee will remain and be, in fact, an employee at will.\nNOW, THEREFORE, with intent to be legally bound, as an ancillary part of the taking of said employment and in consideration thereof,\nEmployee agrees as follows:\n1. CONFIDENTIAL AND PROPRIETARY INFORMATION OF EMPLOYER\nThe Employee recognizes and acknowledges that certain assets of the Employer constitute Confidential Information. The term "Confidential\nInformation"\nas\nused\nin\nthis\nAgreement\nshall\nmean\nall\ninformation\nwhich\nis\nknown\nonly\nto\nthe\nEmployee\nor\nthe\nEmployer,\nother\nemployees\nof\nthe Employer, or others in a confidential relationship with the Employer, and relating to the Employer's business including, without limitation,\ninformation regarding clients, customers, pricing policies, methods of operation, proprietary Employer programs, sales products, profits, costs,\nmarkets,\nkey\npersonnel,\nformulae,\nproduct\napplications,\ntechnical\nprocesses,\nand\ntrade\nsecrets,\nas\nsuch\ninformation\nmay\nexist\nfrom\ntime\nto\ntime,\nwhich the Employee acquired or obtained by virtue of work performed for the Employer, or which the Employee may acquire or may have\nacquired knowledge of during the performance of said work. The Employee shall not, during or after the term of Employee's employment with\nthe Company (the "Term"), disclose all or any part of the Confidential information to any person, firm, corporation, association, or any other\nentity for any reason or purpose whatsoever, directly or indirectly, except as may be required pursuant to his employment hereunder, unless and\nuntil such Confidential Information becomes publicly available other than as a consequence of the breach by the Employee of his confidentiality\nobligations hereunder. In the event of the termination of his employment, whether voluntary or involuntary and whether by the Employer or the\nEmployee, the Employee shall deliver to the Employer all documents and data pertaining to the Confidential Information and shall not take with\nhim any documents or data of any kind or any reproductions (in whole or in part) or extracts of any items relating to the Confidential\nInformation.\nIn the event that the Employee receives a request or is required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose all or any part of 1he Confidential Information, the Employee agrees to (a) promptly notify the Employer\nin writing of the existence, terms and circumstances surrounding such request or requirement, (b) consult with the Employer on the advisability\nof taking legally available steps to resist or narrow such request or requirement, and (c) assist the Employer in seeking a protective order or other\nappropriate remedy. In the event that such protective order or other remedy is not obtained or that the Employer waives compliance with the\nprovisions hereof, the Employee shall not be liable for such disclosure unless disclosure to any such tribunal was caused by or resulted from a\nprevious disclosure by the Employee not permitted by this Agreement.\n2. INTELLECTUAL PROPERTY OF EMPLOYER\nDuring the Term, the Employee shall promptly disclose to the Employer or any successor or assign, and grant to the Employer and its successors\nand assigns without any separate remuneration or compensation other than that received by him in the course of his employment, his entire right,\ntitle\nand interest in and to any and all inventions, developments, discoveries, models, or any other intellectual property of any type or nature\nwhatsoever ("Intellectual Property"), whether developed by him during or after business hours, or alone or in connection with others, that is\nin\nany way related to the business of the Employer, its successors or assigns. This provision shall not apply to books or articles authored by the\nEmployee during non-work hours, consistent with his\nobligations under this Agreement, so long all such books or articles (a) are not funded in whole or in party by the Employer, and (b) do not\ncontain any Confidential Information or Intellectual Property of the Employer. The Employee agrees, at the Employer's expense, to take all steps\nnecessary or proper to vest title to all such Intellectual Property in the Employer, and cooperate fully and assist the Employer in any litigation\nor\nother proceedings involving any such Intellectual Property.\n3. NON-COMPETITION BY EMPLOYEE AND RESTRICTIVE COVENANT\nDuring the Term and for a period of nine (9) calendar months after the termination of the Employee's employment for any reason (the "Restricted\nPeriod"), the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer, stockholder, partner or in any other\ncapacity whatsoever: engage or assist others who engage, in whole or in part, in any business or enterprise that is directly competitive with (x)\nthe\nbusiness\nthat\nthe\nCompany\nengaged\nin\nduring\nthe\nperiod\nof\nthe\nEmployee's\nemployment\nwith\nthe\nCompany,\ncurrently\nnet\nleased\nreal\nestate\ninvestments, or (y) any product, service or business as to which the Company has actively begun preparing to develop at the time of Employee's\nseparation from the Company.\nDuring the Term and the Restricted Period, the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer,\nstockholder, partner or in any other capacity whatsoever: (a) have any contact with any investor, advisor or registered financial representative\nwhich\nwas\nan\ninvestor,\nor\nadvisor\nor\nregistered\nfinancial\nrepresentative\nof\nan\ninvestor,\nof\nthe\nCompany\nduring\nthe\nperiod\nof\nmy\nemployment\nor\nwhich the Company was actively pursuing as a potential investor, advisor or registered financial representative of a potentia investor at the time\nmy employment terminates, for the purpose of pursuing activities with that investor, advisor or registered financial representative which\nare\ncompetitive with or similar to the relationship between the Company and that investor, or (b) without the prior consent of the Board, employ or\nsolicit the employment of, or assist others in employing or soliciting the employment of, any individual employed by the Company at any time\nwhile the Employee was also employed.\nNothing in this Section 3 shall prohibit Employee from making any passive investment in a public company, or where he is the owner of five\npercent (5%) or less of the issued and outstanding voting securities of any entity, provided such ownership does not result in his being obligated\nor\nrequired to devote any managerial efforts. The Employee agrees to secure prior written consent from the Chief Compliance Officer of the\nCompany for any outside business activity described in the Written Supervisory Procedures.\nThe Employee agrees that the restraints imposed upon him pursuant to this Section 3 are necessary for the reasonable and proper protection of\nthe Company and its subsidiaries and affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of\ntime and geographic area. The parties further agree that in the event that any provision of this Section 3 shall be determined by any court of\ncompetent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too greatly\na\nrange of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n4. EMPLOYER PROPERTY\nEmployee shall be responsible for the safekeeping of any equipment or property provided by Employer, including but not limited to furniture,\nsupplies, records, documents, cellular phones, laptop computers, desktop computers, printers, fax machines, answering machines, computer\nsoftware, manuals, etc., and shall reimburse Employer or replace the equipment or property if any is lost or stolen while in Employee's\npossession.\nUpon termination of Employee's employment with Employer, Employee shall turn over to Employer upon demand all such equipment and\nproperty provided by Employer. Employee must also return to Employer all Employer files, records and keys issued.\n5. INJUNCTIVE RELIEF\nEmployee and Employer agree that any breach by Employee of the covenants and agreements contained in any Section of this Agreement will\nresult in irreparable injury to Employer for which money damages could not adequately compensate Employer and therefore, in the event of any\nsuch breach, Employer shall be entitled (in addition to any other rights or remedies which Employer may have at law or in equity, including\nmoney damages) to have an injunction issued by any competent court of equity enjoining and restraining Employee and/or any other person\ninvolved therein from continuing such breach. If Employer resorts to the courts for the enforcement of any of the covenants or agreements\ncontained herein, or if such covenants or agreements are otherwise the subject of litigation between the parties, Employee shall be liable\nfor\nEmployer's reasonable attorneys' fees and legal expenses, and then any limiting term of such covenants and agreements shall be extended for a\nperiod of time equal to the period of such breach, which extension shall commence on the later of (a) the date of which the original (unextended)\nterm of such\ncovenants and agreements is scheduled to terminate or (b) the date that the final court (without further right of appeal) enforces such covenant or\nagreement.\n6. CONTINUING EFFECT OF OTHER PROVISIONS IN EVENT OF PARTIAL INVALIDITY\nEmployee further agrees that a breach of any agreement, whether written or oral, between Employer and Employee or any other actionable\nconduct by Employee, or any defense, set-off or counterclaim by Employee against Employer, or any other related rights Employee has against\nEmployer\nwill\nhave\nno\neffect\non\nany\nor\nall\nof\nthe\nterms\nand\nprovisions\nof\nthe\nrestrictive\ncovenants\nand\nother\nagreements\ncontained\nherein\nor\non\ntheir enforceability and validity. If any portion of the covenants or agreements contained in this Agreement, or the application thereof,\nis\nconstrued to be invalid or unenforceable then the other portions of such covenants or agreements or the application thereof shall not be affected\nand\nshall\nbe\ngiven full force and effect without regard to the invalid or unenforceable portions. If any covenant or agreement therein is held to\nbe\nunenforceable because of the area covered or the duration thereof, such covenant or agreement shall then be enforceable in its reduced form. If\nany of the provisions hereof violate or contravene the applicable laws of any jurisdiction, such provisions shall be deemed not to be a part of this\nAgreement with respect to such jurisdiction only, and the remainder of this Agreement shall remain in full force and effect in such jurisdiction\nand this entire Agreement shall remain in full force and effect in all other jurisdictions.\n7. BENEFIT TO SUCCESSORS OF EMPLOYER AND APPLICABLE LAW\nThis Agreement shall inure to the benefit of Employer and its successors and assigns. If any action at law or in equity is necessary to enforce or\ninterpret the terms of this Agreement, Employer shall be entitled to reasonable attorneys' fees, costs, and necessary disbursements if Employer\nprevails in such action. This Agreement shall be construed and enforced in accordance with the laws of the New York State. If required by the of\ncontext of this Agreement, singular language shall be construed as plural, plural language shall be construed as singular, and the gender\npersonal pronouns shall be construed as masculine, feminine or neuter. This Agreement supplements and does not supersede and is in no way in\ndiminution of any other agreements(s), entered into by Employee regarding the subject matter hereof or containing provisions the same as or\nsimilar in nature hereto, and this Agreement and all such agreements shall remain in full force and effect, independent of one another, and the\nprovisions most restrictive to Employee of this Agreement and all such agreements shall be the controlling provisions that are applicable\nto\nEmployee.\nEmployee represents, warrants and covenants that employee is not a party to or bound by any agreement with any third person or entity and/or is\nnot otherwise bound by law which would in any way restrict, inhibit or limit Employee's ability to fully render and perform all services requested\nby Employer, including but not limited to, fully contacting and dealing with all customers and suppliers in all marketplaces, fully advising\nEmployer about processes and methods, fully using and disclosing all information about suppliers, customers, processes and methods of which\nEmployee may have knowledge, and keeping Employer fully informed of such, and/or which would in any way restrict, inhibit or limit\nEmployee's ability to fully compete with any third person or entity seeking in any way to restrict, inhibit or limit Employee from fully rendering\nand performing all services requested by Employer, including but not limited to, those set forth above, and/or seeking damages as a result\nthereof. Employee hereby agrees to indemnify and hold harmless Employer from any and all claims, liabilities, losses, damages and/or expenses\nwith\nrespect\nthereto\nincluding\nbut\nnot\nlimited\nto\nreasonable\nattorneys'\nfees.\nEmployee\nhereby\nacknowledges\nthat\nhe\nfully\nunderstands\nthat\nEmployer's employment of Employee is conditioned upon Employee's ability to fully render and perform all services requested of him without\nany restriction, hindrance or limit by any third person or entity.\nIN WITNESS WHEREOF, Employee has executed this Agreement with intent to be legally bound as of the day and year first above written.\nEMPLOYEE:\n/s/ Gavin Brandon\nBy: Gavin Brandon	EX-99 .2 3 exhibit992confidentialitya.htm EXHIBIT 99.2\nExhibit 99.2\nEMPLOYEE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made as of December 16, 2014, by the undersigned employee (hereinafter called “Employee”) of American Realty\nCapital Properties, Inc. (together with all other affiliated and/or related entities of the foregoing, the “Employer'' or the “Company”) a Maryland\ncorporation.\nWHEREAS, prior to employment by Employer, Employee understood and agreed that an agreement containing restrictive and other provisions\nof the type hereinafter set forth would be entered into by Employee as an ancillary part of the taking of such employment and Employee is in fact\nherein entering into such an agreement;\nWHEREAS, Employee understands that at various times Employee may be performing services for the benefit of any one or more of the entities\ncomprising the Employer even though Employee may actually be an employee of only one or less than all of such entities or individuals;\nWHEREAS, Employee understands and agrees that Employee will be an employee at will without employment or any right of employment for\nany fixed or particular time period or term notwithstanding that Employee's compensation arrangements now or in the future may be based upon\na stated time period or time basis which will not in any way constitute any agreement or understanding that Employee is or will be employed for\nthat or any other particular time period or for any fixed term, and at all times Employee will remain and be, in fact, an employee at will.\nNOW, THEREFORE, with intent to be legally bound, as an ancillary part of the taking of said employment and in consideration thereof,\nEmployee agrees as follows:\n1. CONFIDENTIAL AND PROPRIETARY INFORMATION OF EMPLOYER\nThe Employee recognizes and acknowledges that certain assets of the Employer constitute Confidential Information. The term “Confidential\nInformation” as used in this Agreement shall mean all information which is known only to the Employee or the Employer, other employees of\nthe Employer, or others in a confidential relationship with the Employer, and relating to the Employer's business including, without limitation,\ninformation regarding clients, customers, pricing policies, methods of operation, proprietary Employer programs, sales products, profits, costs,\nmarkets, key personnel, formulae, product applications, technical processes, and trade secrets, as such information may exist from time to time,\nwhich the Employee acquired or obtained by virtue of work performed for the Employer, or which the Employee may acquire or may have\nacquired knowledge of during the performance of said work. The Employee shall not, during or after the term of Employee's employment with\nthe Company (the “Term”), disclose all or any part of the Confidential information to any person, firm, corporation, association, or any other\nentity for any reason or purpose whatsoever, directly or indirectly, except as may be required pursuant to his employment hereunder, unless and\nuntil such Confidential Information becomes publicly available other than as a consequence of the breach by the Employee of his confidentiality\nobligations hereunder. In the event of the termination of his employment, whether voluntary or involuntary and whether by the Employer or the\nEmployee, the Employee shall deliver to the Employer all documents and data pertaining to the Confidential Information and shall not take with\nhim any documents or data of any kind or any reproductions (in whole or in part) or extracts of any items relating to the Confidential\nInformation.\nIn the event that the Employee receives a request or is required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose all or any part of 1he Confidential Information, the Employee agrees to (a) promptly notify the Employer\nin writing of the existence, terms and circumstances surrounding such request or requirement, (b) consult with the Employer on the advisability\nof taking legally available steps to resist or narrow such request or requirement, and (c) assist the Employer in seeking a protective order or other\nappropriate remedy. In the event that such protective order or other remedy is not obtained or that the Employer waives compliance with the\nprovisions hereof, the Employee shall not be liable for such disclosure unless disclosure to any such tribunal was caused by or resulted from a\nprevious disclosure by the Employee not permitted by this Agreement.\n2. INTELLECTUAL PROPERTY OF EMPLOYER\nDuring the Term, the Employee shall promptly disclose to the Employer or any successor or assign, and grant to the Employer and its successors\nand assigns without any separate remuneration or compensation other than that received by him in the course of his employment, his entire right,\ntitle and interest in and to any and all inventions, developments, discoveries, models, or any other intellectual property of any type or nature\nwhatsoever (“Intellectual Property”), whether developed by him during or after business hours, or alone or in connection with others, that is in\nany way related to the business of the Employer, its successors or assigns. This provision shall not apply to books or articles authored by the\nEmployee during non-work hours, consistent with his\nobligations under this Agreement, so long all such books or articles (a) are not funded in whole or in party by the Employer, and (b) do not\ncontain any Confidential Information or Intellectual Property of the Employer. The Employee agrees, at the Employer's expense, to take all steps\nnecessary or proper to vest title to all such Intellectual Property in the Employer, and cooperate fully and assist the Employer in any litigation or\nother proceedings involving any such Intellectual Property.\n3. NON-COMPETITION BY EMPLOYEE AND RESTRICTIVE COVENANT\nDuring the Term and for a period of nine (9) calendar months after the termination of the Employee’s employment for any reason (the “Restricted\nPeriod”), the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer, stockholder, partner or in any other\ncapacity whatsoever: engage or assist others who engage, in whole or in part, in any business or enterprise that is directly competitive with (x)\nthe business that the Company engaged in during the period of the Employee's employment with the Company, currently net leased real estate\ninvestments, or (y) any product, service or business as to which the Company has actively begun preparing to develop at the time of Employee's\nseparation from the Company.\nDuring the Term and the Restricted Period, the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer,\nstockholder, partner or in any other capacity whatsoever: (a) have any contact with any investor, advisor or registered financial representative\nwhich was an investor, or advisor or registered financial representative of an investor, of the Company during the period of my employment or\nwhich the Company was actively pursuing as a potential investor, advisor or registered financial representative of a potential investor at the time\nmy employment terminates, for the purpose of pursuing activities with that investor, advisor or registered financial representative which are\ncompetitive with or similar to the relationship between the Company and that investor, or (b) without the prior consent of the Board, employ or\nsolicit the employment of, or assist others in employing or soliciting the employment of, any individual employed by the Company at any time\nwhile the Employee was also employed.\nNothing in this Section 3 shall prohibit Employee from making any passive investment in a public company, or where he is the owner of five\npercent (5%) or less of the issued and outstanding voting securities of any entity, provided such ownership does not result in his being obligated\nor required to devote any managerial efforts. The Employee agrees to secure prior written consent from the Chief Compliance Officer of the\nCompany for any outside business activity described in the Written Supervisory Procedures.\nThe Employee agrees that the restraints imposed upon him pursuant to this Section 3 are necessary for the reasonable and proper protection of\nthe Company and its subsidiaries and affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of\ntime and geographic area. The parties further agree that in the event that any provision of this Section 3 shall be determined by any court of\ncompetent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too greatly a\nrange of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n4. EMPLOYER PROPERTY\nEmployee shall be responsible for the safekeeping of any equipment or property provided by Employer, including but not limited to furniture,\nsupplies, records, documents, cellular phones, laptop computers, desktop computers, printers, fax machines, answering machines, computer\nsoftware, manuals, etc., and shall reimburse Employer or replace the equipment or property if any is lost or stolen while in Employee's\npossession.\nUpon termination of Employee's employment with Employer, Employee shall turn over to Employer upon demand all such equipment and\nproperty provided by Employer. Employee must also return to Employer all Employer files, records and keys issued.\n5. INJUNCTIVE RELIEF\nEmployee and Employer agree that any breach by Employee of the covenants and agreements contained in any Section of this Agreement will\nresult in irreparable injury to Employer for which money damages could not adequately compensate Employer and therefore, in the event of any\nsuch breach, Employer shall be entitled (in addition to any other rights or remedies which Employer may have at law or in equity, including\nmoney damages) to have an injunction issued by any competent court of equity enjoining and restraining Employee and/or any other person\ninvolved therein from continuing such breach. If Employer resorts to the courts for the enforcement of any of the covenants or agreements\ncontained herein, or if such covenants or agreements are otherwise the subject of litigation between the parties, Employee shall be liable for\nEmployer's reasonable attorneys' fees and legal expenses, and then any limiting term of such covenants and agreements shall be extended for a\nperiod of time equal to the period of such breach, which extension shall commence on the later of (a) the date of which the original (unextended)\nterm of such\ncovenants and agreements is scheduled to terminate or (b) the date that the final court (without further right of appeal) enforces such covenant or\nagreement.\n6. CONTINUING EFFECT OF OTHER PROVISIONS IN EVENT OF PARTIAL INVALIDITY\nEmployee further agrees that a breach of any agreement, whether written or oral, between Employer and Employee or any other actionable\nconduct by Employee, or any defense, set-off or counterclaim by Employee against Employer, or any other related rights Employee has against\nEmployer will have no effect on any or all of the terms and provisions of the restrictive covenants and other agreements contained herein or on\ntheir enforceability and validity. If any portion of the covenants or agreements contained in this Agreement, or the application thereof, is\nconstrued to be invalid or unenforceable then the other portions of such covenants or agreements or the application thereof shall not be affected\nand shall be given full force and effect without regard to the invalid or unenforceable portions. If any covenant or agreement therein is held to be\nunenforceable because of the area covered or the duration thereof, such covenant or agreement shall then be enforceable in its reduced form. If\nany of the provisions hereof violate or contravene the applicable laws of any jurisdiction, such provisions shall be deemed not to be a part of this\nAgreement with respect to such jurisdiction only, and the remainder of this Agreement shall remain in full force and effect in such jurisdiction\nand this entire Agreement shall remain in full force and effect in all other jurisdictions.\n7. BENEFIT TO SUCCESSORS OF EMPLOYER AND APPLICABLE LAW\nThis Agreement shall inure to the benefit of Employer and its successors and assigns. If any action at law or in equity is necessary to enforce or\ninterpret the terms of this Agreement, Employer shall be entitled to reasonable attorneys' fees, costs, and necessary disbursements if Employer\nprevails in such action. This Agreement shall be construed and enforced in accordance with the laws of the New York State. If required by the\ncontext of this Agreement, singular language shall be construed as plural, plural language shall be construed as singular, and the gender of\npersonal pronouns shall be construed as masculine, feminine or neuter. This Agreement supplements and does not supersede and is in no way in\ndiminution of any other agreements(s), entered into by Employee regarding the subject matter hereof or containing provisions the same as or\nsimilar in nature hereto, and this Agreement and all such agreements shall remain in full force and effect, independent of one another, and the\nprovisions most restrictive to Employee of this Agreement and all such agreements shall be the controlling provisions that are applicable to\nEmployee.\nEmployee represents, warrants and covenants that employee is not a party to or bound by any agreement with any third person or entity and/or is\nnot otherwise bound by law which would in any way restrict, inhibit or limit Employee's ability to fully render and perform all services requested\nby Employer, including but not limited to, fully contacting and dealing with all customers and suppliers in all marketplaces, fully advising\nEmployer about processes and methods, fully using and disclosing all information about suppliers, customers, processes and methods of which\nEmployee may have knowledge, and keeping Employer fully informed of such, and/or which would in any way restrict, inhibit or limit\nEmployee’s ability to fully compete with any third person or entity seeking in any way to restrict, inhibit or limit Employee from fully rendering\nand performing all services requested by Employer, including but not limited to, those set forth above, and/or seeking damages as a result\nthereof. Employee hereby agrees to indemnify and hold harmless Employer from any and all claims, liabilities, losses, damages and/or expenses\nwith respect thereto including but not limited to reasonable attorneys' fees. Employee hereby acknowledges that he fully understands that\nEmployer's employment of Employee is conditioned upon Employee's ability to fully render and perform all services requested of him without\nany restriction, hindrance or limit by any third person or entity.\nIN WITNESS WHEREOF, Employee has executed this Agreement with intent to be legally bound as of the day and year first above written.\nEMPLOYEE:\n/s/ Gavin Brandon\nBy: Gavin Brandon
6c0e2103cb185f28b0c1e9109c674836.pdf	effective_date jurisdiction party term	EX-10.12 26 dex1012.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (MICHAEL\nWEINHOLD)\nExhibit 10.12\nExecutive Employees\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (“Agreement”) is entered into by and between Verso Paper Holdings LLC, a Delaware\nlimited liability company (“Verso Paper”), and Michael Weinhold (“Employee”), to allow Employee to have access to certain valuable competitive\ninformation and business relationships of Verso Paper while also providing protection for such information and relationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions\n(a) As used in this Agreement, the term “Protected Information” shall mean all information, documents or materials, owned, developed\nor possessed by Verso Paper or any employee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso\nPaper takes reasonable measures to maintain in secrecy, and (ii) pertains in any manner to Verso Paper’s business, including but not\nlimited to Research and Development (as defined below); customers or prospective customers, targeted national accounts, or strategies\nor data for identifying and satisfying their needs; present or prospective business relationships; present, short term, or long term strategic\nplans; acquisition candidates; plans for corporate restructuring; products under consideration or development; cost, margin or profit\ninformation; data from which any of the foregoing types of information could be derived; human resources (including compensation\ninformation and internal evaluations of the performance, capability and potential of Verso Paper employees); business methods, data\nbases and computer programs.\n“Research and Development” shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso\nPaper operating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and\nthe improvements and innovations relating to\nsame; quality control procedures and equipment; identification, selection, generation and propagation of tree species having improved\ncharacteristics; forest resource management; innovation and improvement to manufacturing and converting processes such as shipping,\npulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment for use in such processes;\nreduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use and optimization of\nraw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp products; energy\nconservation; computer software and application of computer controls to manufacturing and quality control operations and to inventory\ncontrol; radio frequency identification and its use in paper and packaging products; and product process improvement development or\nevaluation; and (iii) information about methods, techniques, products equipment, and processes which Verso Paper has learned do not\nwork or do not provide beneficial results (“negative know-how”) as well as those which do work which provide beneficial results.\nThe fact that individual elements of the information that constitutes Protected Information may be generally known does not prevent an\nintegrated compilation of information, whether or not reduced to writing, from being Protected Information if that integrated whole is not\ngenerally known.\n(b) As used in this Agreement, the term “Unauthorized” shall mean: (i) in contravention of Verso Paper’s policies or procedures;\n(ii) otherwise inconsistent with Verso Paper’s measures to protect its interests in the Protected Information; (iii) in contravention of any\nlawful instruction or directive, either written or oral, of an Verso Paper employee empowered to issue such instruction or directive;\n(iv) in contravention of any duty existing under law or contract; or (v) to the detriment of Verso Paper.\n2. Confidentiality Provisions\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of\nSenior Vice President, Sales and Marketing, Employee has been and will be entrusted with Protected Information and may develop\nProtected Information, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to\ncompetitors and others who do not know it and that such information constitutes confidential and proprietary trade secrets of Verso\nPaper. While an employee or consultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper,\nEmployee agrees not to use or disclose, directly or indirectly, any Protected Information in an Unauthorized manner or for any\nUnauthorized purpose unless such information shall have become generally known in the relevant industry or independently developed\nwith no assistance from Employee. Further, promptly upon termination, for any reason, of Employee’s employment with Verso Paper or\nupon the request of Verso Paper Employee agrees to deliver to Verso Paper all property and materials and copies thereof within\nEmployee’s possession or control which belong to Verso Paper or which contain Protected Information and to permanently delete upon\nVerso Paper’s request all Protected Information from any computers or other electronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee’s employment with Verso Paper for any reason Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all\nreasonable measures to prevent Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or\nentities from obtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately\nnotify Verso Paper thereof and, at Verso Paper’s expense, shall consult with Verso Paper on the advisability of taking steps to resist or\nnarrow such request and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance\nthat the Protected Information will be afforded confidential treatment. If such protective order or other appropriate remedy is not\nobtained, Employee shall furnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be\nfurnished.\n3. Non-compete provisions\n(a) Employee acknowledges and agrees that, the business of Verso Paper and its customers is worldwide in scope, Verso Paper’s\ncompetitors and customers are located throughout the world, and Verso Paper’s strategic planning and Research and Development\nactivities have application throughout the world and are for the benefit of customers and Verso Paper’s business throughout the world,\nand therefore, the restrictions on the Employee’s competition after employment as described below apply to anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business. Employee acknowledges that any such competition within that geographical\nscope will irreparably injure Verso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition\ndescribed below are reasonably tailored to protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly whether\nfor compensation or otherwise with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and super-calendared paper products or the operation of coated and super-calendared paper mills anywhere in the world.\n(c) After the termination of employment for any reason, Employee agrees that for a period of twelve (12) months (the “Non-Compete\nPeriod”) following such termination Employee will not compete with Verso Paper anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business:\n(i.) By producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of\ncoated\nand super-calendared paper products or the operation of coated and super-calendared paper mills;\n(ii.) By engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation,\nfinancial, human resources, strategic planning, or operational duties) for, whether as an employee, consultant, or otherwise, any\nentity which produces, develops, sells or markets in the business of coated and super-calendared paper products or the operation\nof coated and super-calendared paper mills;\n(iii.) By owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and super-calendared paper products or the operation of coated and super-calendared paper mills, provided\nthat this section 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the\noutstanding stock of any class of a corporation that is publicly traded, so long as Employee has no active participation in the\nbusiness of such corporation; or\n(iv.) By soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products,\nprocesses or services of the business of coated and super-calendared paper products or the operation of coated and super-\ncalendared paper mills, whether existing or contemplated for the future, on which Employee has worked, or concerning which\nEmployee has in any manner acquired knowledge or Protected Information about, during the twenty four (24) months preceding\ntermination of Employee’s employment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit\nof a multi-divisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee\ndoes not engage in, oversee, provide input or information regarding, or participate in any manner in the activities described in this\nparagraph as they relate to the division or business unit which is a competitor of Verso Paper. Employee shall not assist others in\nengaging in activities which Employee is not permitted to take.\n(d) Verso Paper and Employee agree that, during the Non-Compete Period, if Employee is unable, despite diligent search, to obtain\nemployment consistent with Employee’s experience and education, Employee shall so notify Verso Paper in writing, describing in detail\nthe efforts Employee has made to secure such employment that does not conflict with Employee’s non-compete obligations. Upon\nreceipt and reasonable verification of the information contained in such notice, and provided that Employee complies with all his\nobligations under this Agreement (including, without limitation, his obligations under sections 2, 3(c) and 4), Verso Paper shall make\nmonthly payments to Employee equal to the monthly base pay Employee was receiving from Verso Paper in the month prior to the\ntermination of employment with Verso Paper for each month (or prorated for periods less\nthan a month) of such unemployment during the Non-Compete Period. Before the close of each month for which Employee seeks such\npayment, Employee shall advise Verso Paper in writing of Employee’s efforts to obtain non-competitive employment and shall certify\nthat although Employee diligently sought such employment, Employee was unable to obtain it.\n4. Non-Solicitation/Non-hire provision\nDuring the term of Employee’s employment at Verso Paper and for twelve (12) months following the termination, for any reason, of\nemployment, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity,\ndirectly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in hiring,\nsoliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5. Tolling period of Restrictions\nEmployee agrees that the periods of non-competition and non-solicitation set forth in sections 3 and 4 of this Agreement shall be\nextended by the period of violation if Employee is found to be in violation of those provisions.\n6. Duty to show agreement to prospective employer.\nDuring Employee’s employment with Verso Paper and for twelve (12) months thereafter, Employee shall, prior to accepting other\nemployment, provide a copy of this Agreement to any recruiter who assists Employee in locating employment other than with Verso\nPaper and to any prospective employer with which Employee discusses potential employment.\n7. Representations, Warranties and Acknowledgements\nIn addition to the representations, warranties and obligations set forth throughout this Agreement, Employee acknowledges that\n(a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its success; (b) the Unauthorized use\nor disclosure of Protected Information or the violation of the covenants set forth in sections 2, 3, or 4 would cause irreparable harm to\nVerso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected Information;\n(d) Employee has developed or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of\nthis Agreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and\nvaluable services to Verso Paper of an intellectual character and that Employee’s services will be difficult for Verso Paper to replace.\nEmployee further acknowledges and agrees that Verso Paper is providing Employee with significant consideration in this Agreement for\nentering into the Agreement and that Verso Paper’s remedies for any breach of this Agreement are in addition to and not in place of any\nother remedies Verso Paper may have at law or equity or under any other agreements.\n8. Section 409A of the Code\nThe parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and\nincorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the Department\nof Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof (“Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in\nthe event that Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A,\nVerso Paper and Employee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and\nprocedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to\npreserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and\nto avoid less favorable accounting or tax consequences for Verso Paper and/or (b) take such other actions as mutually determined to be\nnecessary or appropriate to exempt any amounts payable hereunder from Section 409A or to comply with the requirements of\nSection 409A and thereby avoid the application of penalty taxes thereunder.\n9. General\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee’s right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this\nAgreement or portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such\njurisdiction, the remainder of such provisions shall not thereby be affected and shall be given full effect, without regard to the invalid\nportion. It is the intention of the parties and Employee agrees, that if any court construes any provision or clause of this Agreement or\nany portion thereof to be illegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby,\nsuch court shall reduce the duration, area or matter of such provision and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the\nevent of the absence of either of these executives, or the vacancy of either of these positions, such other officer of Verso Paper as Verso\nPaper’s Board of Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Attorney’s fees. Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-\ndefaulting party all of the non-defaulting party’s costs and expenses, including attorney’s and experts’ fees in enforcing the provisions of\nthe Agreement as to which a breach is found.\n(g) Employee agrees that Verso Paper’s determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee’s obligations under this Agreement.\n(h) Common law duties. Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the\ncovenants set forth above prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference\nwith Verso Paper’s business and customer relationships.\n(i) Opportunity to review. Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with\nan independent attorney before signing this Agreement.\nIn witness whereof the parties hereto have caused this Agreement to be executed and delivered effective as of the date signed below by Employee\nand the duly authorized officer of Verso Paper.\nSigned (Employee):\n/s/ Michael Weinhold\nMichael Weinhold, Senior Vice President, Sales and Marketing\nDate:\n3/19/07\nWork address:\nVerso Paper:\n/s/ Ricardo Moncada\nRicardo Moncada, Vice President, Human Resources\nDate:\n3/19/07	EX-10.12 26 dex1012.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (MICHAEL\nWEINHOLD)\nExhibit 10.12\nExecutive Employees\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (“Agreement”) is entered into by and between Verso Paper Holdings LLC, a Delaware\nlimited liability company (“Verso Paper”), and Michael Weinhold (“Employee”), to allow Employee to have access to certain valuable competitive\ninformation and business relationships of Verso Paper while also providing protection for such information and relationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions\n(a) As used in this Agreement, the term “Protected Information” shall mean all information, documents or materials, owned, developed\nor possessed by Verso Paper or any employee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso\nPaper takes reasonable measures to maintain in secrecy, and (ii) pertains in any manner to Verso Paper’s business, including but not\nlimited to Research and Development (as defined below); customers or prospective customers, targeted national accounts, or strategies\nor data for identifying and satisfying their needs; present or prospective business relationships; present, short term, or long term strategic\nplans; acquisition candidates; plans for corporate restructuring; products under consideration or development; cost, margin or profit\ninformation; data from which any of the foregoing types of information could be derived; human resources (including compensation\ninformation and internal evaluations of the performance, capability and potential of Verso Paper employees); business methods, data\nbases and computer programs.\n“Research and Development” shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso\nPaper operating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and\nthe improvements and innovations relating to\nsame; quality control procedures and equipment; identification, selection, generation and propagation of tree species having improved\ncharacteristics; forest resource management; innovation and improvement to manufacturing and converting processes such as shipping,\npulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment for use in such processes;\nreduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use and optimization of\nraw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp products; energy\nconservation; computer software and application of computer controls to manufacturing and quality control operations and to inventory\ncontrol; radio frequency identification and its use in paper and packaging products; and product process improvement development or\nevaluation; and (iii) information about methods, techniques, products equipment, and processes which Verso Paper has learned do not\nwork or do not provide beneficial results (“negative know-how”) as well as those which do work which provide beneficial results.\nThe fact that individual elements of the information that constitutes Protected Information may be generally known does not prevent an\nintegrated compilation of information, whether or not reduced to writing, from being Protected Information if that integrated whole is not\ngenerally known.\n(b) As used in this Agreement, the term “Unauthorized” shall mean: (i) in contravention of Verso Paper’s policies or procedures;\n(ii) otherwise inconsistent with Verso Paper’s measures to protect its interests in the Protected Information; (iii) in contravention of any\nlawful instruction or directive, either written or oral, of an Verso Paper employee empowered to issue such instruction or directive;\n(iv) in contravention of any duty existing under law or contract; or (v) to the detriment of Verso Paper.\nConfidentiality Provisions\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of\nSenior Vice President, Sales and Marketing, Employee has been and will be entrusted with Protected Information and may develop\nProtected Information, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to\ncompetitors and others who do not know it and that such information constitutes confidential and proprietary trade secrets of Verso\nPaper. While an employee or consultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper,\nEmployee agrees not to use or disclose, directly or indirectly, any Protected Information in an Unauthorized manner or for any\nUnauthorized purpose unless such information shall have become generally known in the relevant industry or independently developed\nwith no assistance from Employee. Further, promptly upon termination, for any reason, of Employee’s employment with Verso Paper or\nupon the request of Verso Paper Employee agrees to deliver to Verso Paper all property and materials and copies thereof within\nEmployee’s possession or control which belong to Verso Paper or which contain Protected Information and to permanently delete upon\nVerso Paper’s request all Protected Information from any computers or other electronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee’s employment with Verso Paper for any reason Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all\nreasonable measures to prevent Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or\nentities from obtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately\nnotify Verso Paper thereof and, at Verso Paper’s expense, shall consult with Verso Paper on the advisability of taking steps to resist or\nnarrow such request and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance\nthat the Protected Information will be afforded confidential treatment. If such protective order or other appropriate remedy is not\nobtained, Employee shall furnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be\nfurnished.\nNon-compete provisions\n(a) Employee acknowledges and agrees that, the business of Verso Paper and its customers is worldwide in scope, Verso Paper’s\ncompetitors and customers are located throughout the world, and Verso Paper’s strategic planning and Research and Development\nactivities have application throughout the world and are for the benefit of customers and Verso Paper’s business throughout the world,\nand therefore, the restrictions on the Employee’s competition after employment as described below apply to anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business. Employee acknowledges that any such competition within that geographical\nscope will irreparably injure Verso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition\ndescribed below are reasonably tailored to protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly whether\nfor compensation or otherwise with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and super-calendared paper products or the operation of coated and super-calendared paper mills anywhere in the world.\n(c) After the termination of employment for any reason, Employee agrees that for a period of twelve (12) months (the “Non-Compete\nPeriod”) following such termination Employee will not compete with Verso Paper anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business:\n(i.) By producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of\ncoated\nand super-calendared paper products or the operation of coated and super-calendared paper mills;\n(ii.) By engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation,\nfinancial, human resources, strategic planning, or operational duties) for, whether as an employee, consultant, or otherwise, any\nentity which produces, develops, sells or markets in the business of coated and super-calendared paper products or the operation\nof coated and super-calendared paper mills;\n(iii.) By owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and super-calendared paper products or the operation of coated and super-calendared paper mills, provided\nthat this section 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the\noutstanding stock of any class of a corporation that is publicly traded, so long as Employee has no active participation in the\nbusiness of such corporation; or\n(iv.) By soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products,\nprocesses or services of the business of coated and super-calendared paper products or the operation of coated and super-\ncalendared paper mills, whether existing or contemplated for the future, on which Employee has worked, or concerning which\nEmployee has in any manner acquired knowledge or Protected Information about, during the twenty four (24) months preceding\ntermination of Employee’s employment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit\nof a multi-divisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee\ndoes not engage in, oversee, provide input or information regarding, or participate in any manner in the activities described in this\nparagraph as they relate to the division or business unit which is a competitor of Verso Paper. Employee shall not assist others in\nengaging in activities which Employee is not permitted to take.\n(d) Verso Paper and Employee agree that, during the Non-Compete Period, if Employee is unable, despite diligent search, to obtain\nemployment consistent with Employee’s experience and education, Employee shall so notify Verso Paper in writing, describing in detail\nthe efforts Employee has made to secure such employment that does not conflict with Employee’s non-compete obligations. Upon\nreceipt and reasonable verification of the information contained in such notice, and provided that Employee complies with all his\nobligations under this Agreement (including, without limitation, his obligations under sections 2, 3(c) and 4), Verso Paper shall make\nmonthly payments to Employee equal to the monthly base pay Employee was receiving from Verso Paper in the month prior to the\ntermination of employment with Verso Paper for each month (or prorated for periods less\nthan a month) of such unemployment during the Non-Compete Period. Before the close of each month for which Employee seeks such\npayment, Employee shall advise Verso Paper in writing of Employee’s efforts to obtain non-competitive employment and shall certify\nthat although Employee diligently sought such employment, Employee was unable to obtain it.\nNon-Solicitation/Non-hire provision\nDuring the term of Employee’s employment at Verso Paper and for twelve (12) months following the termination, for any reason, of\nemployment, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity,\ndirectly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in hiring,\nsoliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\nTolling period of Restrictions\nEmployee agrees that the periods of non-competition and non-solicitation set forth in sections 3 and 4 of this Agreement shall be\nextended by the period of violation if Employee is found to be in violation of those provisions.\nDuty to show agreement to prospective employer.\nDuring Employee’s employment with Verso Paper and for twelve (12) months thereafter, Employee shall, prior to accepting other\nemployment, provide a copy of this Agreement to any recruiter who assists Employee in locating employment other than with Verso\nPaper and to any prospective employer with which Employee discusses potential employment.\nRepresentations, Warranties and Acknowledgements\nIn addition to the representations, warranties and obligations set forth throughout this Agreement, Employee acknowledges that\n(a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its success; (b) the Unauthorized use\nor disclosure of Protected Information or the violation of the covenants set forth in sections 2, 3, or 4 would cause irreparable harm to\nVerso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected Information;\n(d) Employee has developed or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of\nthis Agreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and\nvaluable services to Verso Paper of an intellectual character and that Employee’s services will be difficult for Verso Paper to replace.\nEmployee further acknowledges and agrees that Verso Paper is providing Employee with significant consideration in this Agreement for\nentering into the Agreement and that Verso Paper’s remedies for any breach of this Agreement are in addition to and not in place of any\nother remedies Verso Paper may have at law or equity or under any other agreements.\nSection 409A of the Code\nThe parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and\nincorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the Department\nof Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof (“Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in\nthe event that Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A,\nVerso Paper and Employee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and\nprocedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to\npreserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and\nto avoid less favorable accounting or tax consequences for Verso Paper and/or (b) take such other actions as mutually determined to be\nnecessary or appropriate to exempt any amounts payable hereunder from Section 409A or to comply with the requirements of\nSection 409A and thereby avoid the application of penalty taxes thereunder.\nGeneral\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee’s right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this\nAgreement or portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such\njurisdiction, the remainder of such provisions shall not thereby be affected and shall be given full effect, without regard to the invalid\nportion. It is the intention of the parties and Employee agrees, that if any court construes any provision or clause of this Agreement or\nany portion thereof to be illegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby,\nsuch court shall reduce the duration, area or matter of such provision and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the\nevent of the absence of either of these executives, or the vacancy of either of these positions, such other officer of Verso Paper as Verso\nPaper’s Board of Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Attorney’s fees. Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-\ndefaulting party all of the non-defaulting party’s costs and expenses, including attorney’s and experts’ fees in enforcing the provisions of\nthe Agreement as to which a breach is found.\n(g) Employee agrees that Verso Paper’s determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee’s obligations under this Agreement.\n(h) Common law duties. Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the\ncovenants set forth above prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference\nwith Verso Paper’s business and customer relationships.\n(i) Opportunity to review. Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with\nan independent attorney before signing this Agreement.\nIn witness whereof the parties hereto have caused this Agreement to be executed and delivered effective as of the date signed below by Employee\nand the duly authorized officer of Verso Paper.\nSigned (Employee): /s/ Michael Weinhold\nMichael Weinhold, Senior Vice President, Sales and Marketing\nDate: 3/19/07\nWork address:\nVerso Paper: /s/ Ricardo Moncada\nRicardo Moncada, Vice President, Human Resources\nDate: 3/19/07	EX-10.12 26 dex 1012.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (MICHAEL\nWEINHOLD)\nExhibit 10.12\nExecutive Employees\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement ("Agreement") is entered into by and between Verso Paper Holdings LLC, a Delaware\nlimited liability company ("Verso Paper"), and Michael Weinhold ("Employee"), to allow Employee to have access to certain valuable competitive\ninformation and business relationships of Verso Paper while also providing protection for such information and relationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this\nAgreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions\n(a) As used in this Agreement, the term "Protected Information" shall mean all information, documents or materials, owned, developed\nor\npossessed by Verso Paper or any employee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso\nPaper takes reasonable measures to maintain in secrecy, and (ii) pertains in any manner to Verso Paper's business, including but not\nlimited to Research and Development (as defined below); customers or prospective customers, targeted national accounts, or strategies\nor data for identifying and satisfying their needs; present or prospective business relationships; present, short term, or long term strategic\nplans; acquisition candidates; plans for corporate restructuring; products under consideration or development; cost, margin or profit\ninformation; data from which any of the foregoing types of information could be derived; human resources (including compensation\ninformation and internal evaluations of the performance, capability and potential of Verso Paper employees); business methods, data\nbases and computer programs.\n"Research and Development" shall include, but not be limited to (i) all short term and long term basic, applied and developmenta\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso\nPaper operating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and\nthe improvements and innovations relating to\nsame; quality control procedures and equipment; identification, selection, generation and propagation of tree species having improved\ncharacteristics; forest resource management; innovation and improvement to manufacturing and converting processes such as shipping,\npulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment for use in such processes;\nreduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use and optimization of\nraw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp products; energy\nconservation; computer software and application of computer controls to manufacturing and quality control operations and to inventory\ncontrol; radio frequency identification and its use in paper and packaging products; and product process improvemen development or\nevaluation; and (iii) information about methods, techniques, products equipment, and processes which Verso Paper has learned do not\nwork or do not provide beneficial results ("negative know-how") as well as those which do work which provide beneficial results.\nThe fact that individual elements of the information that constitutes Protected Information may be generally known does not prevent an\nintegrated compilation of information, whether or not reduced to writing, from being Protected Information if that integrated whole is not\ngenerally known.\n(b) As used in this Agreement, the term "Unauthorized" shall mean: (i) in contravention of Verso Paper's policies or procedures;\n(ii) otherwise inconsistent with Verso Paper's measures to protect its interests in the Protected Information; (iii) in contravention of any\nlawful instruction or directive, either written or oral, of an Verso Paper employee empowered to issue such instruction or directive;\n(iv) in contravention of any duty existing under law or contract; or (v) to the detriment of Verso Paper.\n2.\nConfidentiality Provisions\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of\nSenior Vice President, Sales and Marketing, Employee has been and will be entrusted with Protected Information and may develop\nProtected Information, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to\ncompetitors and others who do not know it and that such information constitutes confidential and proprietary trade secrets of Verso\nPaper. While an employee or consultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper,\nEmployee agrees not to use or disclose, directly or indirectly, any Protected Information in an Unauthorized manner or for any\nUnauthorized purpose unless such information shall have become generally known in the relevant industry or independently developed\nwith no assistance from Employee. Further, promptly upon termination, for any reason, of Employee's employment with Verso Paper\nor\nupon the request of Verso Paper Employee agrees to deliver to Verso Paper all property and materials and copies thereof within\nEmployee's possession or control which belong to Verso Paper or which contain Protected Information and to permanently delete upon\nVerso Paper's request all Protected Information from any computers or other electronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee's employment with Verso Paper for any reason Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all\nreasonable measures to prevent Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or\nentities from obtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information then before any such disclosure may be made, Employee shall immediately\nnotify Verso Paper thereof and, at Verso Paper's expense, shall consult with Verso Paper on the advisability of taking steps to resist or\nnarrow such request and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance\nthat the Protected Information will be afforded confidential treatment. If such protective order or other appropriate remedy is not\nobtained, Employee shall furnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be\nfurnished.\n3.\nNon-compete provisions\n(a) Employee acknowledges and agrees that, the business of Verso Paper and its customers is worldwide in scope, Verso Paper's\ncompetitors and customers are located throughout the world, and Verso Paper's strategic planning and Research and Development\nactivities have application throughout the world and are for the benefit of customers and Verso Paper's business throughout the world,\nand therefore, the restrictions on the Employee's competition after employment as described below apply to anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business. Employee acknowledges that any such competition within that geographical\nscope will irreparably injure Verso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition\ndescribed below are reasonably tailored to protect Verso Paper.\n(b)\nWhile an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly whether\nfor compensation or otherwise with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and super-calendared paper products or the operation of coated and super-calendared paper mills anywhere in the world.\n(c) After the termination of employment for any reason, Employee agrees that for a period of twelve (12) months (the "Non-Compete\nPeriod") following such termination Employee will not compete with Verso Paper anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business:\n(i.) By producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of\ncoated\nand super-calendared paper products or the operation of coated and super-calendared paper mills;\n(ii.) By engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation,\nfinancial, human resources, strategic planning, or operational duties) for, whether as an employee, consultant, or otherwise, any\nentity which produces, develops, sells or markets in the business of coated and super-calendared paper products or the operation\nof coated and super-calendared paper mills;\n(iii.) By owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and super-calendared paper products or the operation of coated and super-calendared paper mills, provided\nthat this section 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the\noutstanding stock of any class of a corporation that is publicly traded, so long as Employee has no active participation in the\nbusiness of such corporation; or\n(iv.) By soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products,\nprocesses or services of the business of coated and super-calendared paper products or the operation of coated and super-\ncalendared paper mills, whether existing or contemplated for the future, on which Employee has worked, or concerning which\nEmployee has in any manner acquired knowledge or Protected Information about, during the twenty four (24) months preceding\ntermination of Employee's employment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit\nof a multi-divisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee\ndoes not engage in, oversee, provide input or information regarding, or participate in any manner in the activities described in this\nparagraph as they relate to the division or business unit which is a competitor of Verso Paper. Employee shall not assist others in\nengaging in activities which Employee is not permitted to take.\n(d) Verso Paper and Employee agree that, during the Non-Compete Period, if Employee is unable, despite diligent search, to obtain\nemployment consistent with Employee's experience and education, Employee shall so notify Verso Paper in writing, describing in detail\nthe efforts Employee has made to secure such employment that does not conflict with Employee's non-compete obligations. Upon\nreceipt and reasonable verification of the information contained in such notice, and provided that Employee complies with all his\nobligations under this Agreement (including, without limitation, his obligations under sections 2, 3(c) and 4), Verso Paper shall make\nmonthly payments to Employee equal to the monthly base pay Employee was receiving from Verso Paper in the month prior to the\ntermination of employment with Verso Paper for each month (or prorated for periods less\nthan a month) of such unemployment during the Non-Compete Period. Before the close of each month for which Employee seeks such\npayment, Employee shall advise Verso Paper in writing of Employee's efforts to obtain non-competitive employment and shall certify\nthat although Employee diligently sought such employment, Employee was unable to obtain it.\n4.\nNon-Solicitation/Non-hire provision\nDuring the term of Employee's employment at Verso Paper and for twelve (12) months following the termination, for any reason, of\nemployment, Employee agrees that Employee will not, either on Employee's own behalf or on behalf of any other person or entity,\ndirectly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in hiring,\nsoliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5.\nTolling period of Restrictions\nEmployee agrees that the periods of non-competition and non-solicitation set forth in sections 3 and 4 of this Agreement shall be\nextended by the period of violation if Employee is found to be in violation of those provisions.\n6.\nDuty to show agreement to prospective employer.\nDuring Employee's employment with Verso Paper and for twelve (12) months thereafter, Employee shall, prior to accepting other\nemployment, provide a copy of this Agreement to any recruiter who assists Employee in locating employment other than with Verso\nPaper and to any prospective employer with which Employee discusses potential employment.\n7.\nRepresentations, Warranties and Acknowledgements\nIn addition to the representations, warranties and obligations set forth throughout this Agreement, Employee acknowledges that\n(a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its success; (b) the Unauthorized\nuse\nor disclosure of Protected Information or the violation of the covenants set forth in sections 2, 3, or 4 would cause irreparable harm to\nVerso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected Information;\n(d) Employee has developed or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of\nthis Agreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and\nvaluable services to Verso Paper of an intellectual character and that Employee's services will be difficult for Verso Paper to replace.\nEmployee further acknowledges and agrees that Verso Paper is providing Employee with significant consideration in this Agreement for\nentering into the Agreement and that Verso Paper's remedies for any breach of this Agreement are in addition to and not in place of any\nother remedies Verso Paper may have at law or equity or under any other agreements.\n8.\nSection 409A of the Code\nThe parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and\nincorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the Department\nof Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof ("Section 409A"). Notwithstanding any provision of this Agreement to the contrary, in\nthe event that Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A,\nVerso Paper and Employee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and\nprocedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to\npreserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and\nto avoid less favorable accounting or tax consequences for Verso Paper and/or (b) take such other actions as mutually determined to be\nnecessary or appropriate to exempt any amounts payable hereunder from Section 409A or to comply with the requirements of\nSection 409A and thereby avoid the application of penalty taxes thereunder.\n9. General\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee's right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this\nAgreement or portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such\njurisdiction, the remainder of such provisions shall not thereby be affected and shall be given full effect, without regard to the invalid\nportion It is the intention of the parties and Employee agrees, that if any court construes any provision or clause of this Agreement\nor\nany portion thereof to be illegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby,\nsuch court shall reduce the duration, area or matter of such provision and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the\nevent of the absence of either of these executives, or the vacancy of either of these positions, such other officer of Verso Paper as Verso\nPaper's Board of Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Attorney's fees. Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-\ndefaulting party all of the non-defaulting party's costs and expenses, including attorney's and experts' fees in enforcing the provisions of\nthe Agreement as to which a breach is found.\n(g) Employee agrees that Verso Paper's determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee's obligations under this Agreement.\n(h) Common law duties. Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the\ncovenants set forth above prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference\nwith Verso Paper's business and customer relationships.\n(i) Opportunity to review. Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with\nan independent attorney before signing this Agreement.\nIn witness whereof the parties hereto have caused this Agreement to be executed and delivered effective as of the date signed below by Employee\nand the duly authorized officer of Verso Paper.\nSigned (Employee):\n/s/ Michael Weinhold\nMichael Weinhold, Senior Vice President, Sales and Marketing\nDate:\n3/19/07\nWork address:\nVerso Paper:\n/s/ Ricardo Moncada\nRicardo Moncada, Vice President, Human Resources\nDate:\n3/19/07	EX-10.12 26 dex1012.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (MICHAEL\nWEINHOLD)\nExhibit 10.12\nExecutive Employees\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (“Agreement”) is entered into by and between Verso Paper Holdings LLC, a Delaware\nlimited liability company (“Verso Paper”), and Michael Weinhold (“Employee”), to allow Employee to have access to certain valuable competitive\ninformation and business relationships of Verso Paper while also providing protection for such information and relationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions\n(a) As used in this Agreement, the term “Protected Information” shall mean all information, documents or materials, owned, developed\nor possessed by Verso Paper or any employee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso\nPaper takes reasonable measures to maintain in secrecy, and (ii) pertains in any manner to Verso Paper’s business, including but not\nlimited to Research and Development (as defined below); customers or prospective customers, targeted national accounts, or strategies\nor data for identifying and satisfying their needs; present or prospective business relationships; present, short term, or long term strategic\nplans; acquisition candidates; plans for corporate restructuring; products under consideration or development; cost, margin or profit\ninformation; data from which any of the foregoing types of information could be derived; human resources (including compensation\ninformation and internal evaluations of the performance, capability and potential of Verso Paper employees); business methods, data\nbases and computer programs.\n“Research and Development” shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso\nPaper operating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and\nthe improvements and innovations relating to\nsame; quality control procedures and equipment; identification, selection, generation and propagation of tree species having improved\ncharacteristics; forest resource management; innovation and improvement to manufacturing and converting processes such as shipping,\npulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment for use in such processes;\nreduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use and optimization of\nraw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp products; energy\nconservation; computer software and application of computer controls to manufacturing and quality control operations and to inventory\ncontrol; radio frequency identification and its use in paper and packaging products; and product process improvement development or\nevaluation; and (iii) information about methods, techniques, products equipment, and processes which Verso Paper has learned do not\nwork or do not provide beneficial results (“negative know-how”) as well as those which do work which provide beneficial results.\nThe fact that individual elements of the information that constitutes Protected Information may be generally known does not prevent an\nintegrated compilation of information, whether or not reduced to writing, from being Protected Information if that integrated whole is not\ngenerally known.\n(b) As used in this Agreement, the term “Unauthorized” shall mean: (i) in contravention of Verso Paper’s policies or procedures;\n(ii) otherwise inconsistent with Verso Paper’s measures to protect its interests in the Protected Information; (iii) in contravention of any\nlawful instruction or directive, either written or oral, of an Verso Paper employee empowered to issue such instruction or directive;\n(iv) in contravention of any duty existing under law or contract; or (v) to the detriment of Verso Paper.\n2. Confidentiality Provisions\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of\nSenior Vice President, Sales and Marketing, Employee has been and will be entrusted with Protected Information and may develop\nProtected Information, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to\ncompetitors and others who do not know it and that such information constitutes confidential and proprietary trade secrets of Verso\nPaper. While an employee or consultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper,\nEmployee agrees not to use or disclose, directly or indirectly, any Protected Information in an Unauthorized manner or for any\nUnauthorized purpose unless such information shall have become generally known in the relevant industry or independently developed\nwith no assistance from Employee. Further, promptly upon termination, for any reason, of Employee’s employment with Verso Paper or\nupon the request of Verso Paper Employee agrees to deliver to Verso Paper all property and materials and copies thereof within\nEmployee’s possession or control which belong to Verso Paper or which contain Protected Information and to permanently delete upon\nVerso Paper’s request all Protected Information from any computers or other electronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee’s employment with Verso Paper for any reason Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all\nreasonable measures to prevent Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or\nentities from obtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately\nnotify Verso Paper thereof and, at Verso Paper’s expense, shall consult with Verso Paper on the advisability of taking steps to resist or\nnarrow such request and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance\nthat the Protected Information will be afforded confidential treatment. If such protective order or other appropriate remedy is not\nobtained, Employee shall furnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be\nfurnished.\n3. Non-compete provisions\n(a) Employee acknowledges and agrees that, the business of Verso Paper and its customers is worldwide in scope, Verso Paper’s\ncompetitors and customers are located throughout the world, and Verso Paper’s strategic planning and Research and Development\nactivities have application throughout the world and are for the benefit of customers and Verso Paper’s business throughout the world,\nand therefore, the restrictions on the Employee’s competition after employment as described below apply to anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business. Employee acknowledges that any such competition within that geographical\nscope will irreparably injure Verso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition\ndescribed below are reasonably tailored to protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly whether\nfor compensation or otherwise with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and super-calendared paper products or the operation of coated and super-calendared paper mills anywhere in the world.\n(c) After the termination of employment for any reason, Employee agrees that for a period of twelve (12) months (the “Non-Compete\nPeriod”) following such termination Employee will not compete with Verso Paper anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business:\n(i.) By producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of\ncoated\nand super-calendared paper products or the operation of coated and super-calendared paper mills;\n(ii.) By engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation,\nfinancial, human resources, strategic planning, or operational duties) for, whether as an employee, consultant, or otherwise, any\nentity which produces, develops, sells or markets in the business of coated and super-calendared paper products or the operation\nof coated and super-calendared paper mills;\n(iii.) By owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and super-calendared paper products or the operation of coated and super-calendared paper mills, provided\nthat this section 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the\noutstanding stock of any class of a corporation that is publicly traded, so long as Employee has no active participation in the\nbusiness of such corporation; or\n(iv.) By soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products,\nprocesses or services of the business of coated and super-calendared paper products or the operation of coated and super-\ncalendared paper mills, whether existing or contemplated for the future, on which Employee has worked, or concerning which\nEmployee has in any manner acquired knowledge or Protected Information about, during the twenty four (24) months preceding\ntermination of Employee’s employment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit\nof a multi-divisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee\ndoes not engage in, oversee, provide input or information regarding, or participate in any manner in the activities described in this\nparagraph as they relate to the division or business unit which is a competitor of Verso Paper. Employee shall not assist others in\nengaging in activities which Employee is not permitted to take.\n(d) Verso Paper and Employee agree that, during the Non-Compete Period, if Employee is unable, despite diligent search, to obtain\nemployment consistent with Employee’s experience and education, Employee shall so notify Verso Paper in writing, describing in detail\nthe efforts Employee has made to secure such employment that does not conflict with Employee’s non-compete obligations. Upon\nreceipt and reasonable verification of the information contained in such notice, and provided that Employee complies with all his\nobligations under this Agreement (including, without limitation, his obligations under sections 2, 3(c) and 4), Verso Paper shall make\nmonthly payments to Employee equal to the monthly base pay Employee was receiving from Verso Paper in the month prior to the\ntermination of employment with Verso Paper for each month (or prorated for periods less\nthan a month) of such unemployment during the Non-Compete Period. Before the close of each month for which Employee seeks such\npayment, Employee shall advise Verso Paper in writing of Employee’s efforts to obtain non-competitive employment and shall certify\nthat although Employee diligently sought such employment, Employee was unable to obtain it.\n4. Non-Solicitation/Non-hire provision\nDuring the term of Employee’s employment at Verso Paper and for twelve (12) months following the termination, for any reason, of\nemployment, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity,\ndirectly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in hiring,\nsoliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5. Tolling period of Restrictions\nEmployee agrees that the periods of non-competition and non-solicitation set forth in sections 3 and 4 of this Agreement shall be\nextended by the period of violation if Employee is found to be in violation of those provisions.\n6. Duty to show agreement to prospective employer.\nDuring Employee’s employment with Verso Paper and for twelve (12) months thereafter, Employee shall, prior to accepting other\nemployment, provide a copy of this Agreement to any recruiter who assists Employee in locating employment other than with Verso\nPaper and to any prospective employer with which Employee discusses potential employment.\n7. Representations, Warranties and Acknowledgements\nIn addition to the representations, warranties and obligations set forth throughout this Agreement, Employee acknowledges that\n(a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its success; (b) the Unauthorized use\nor disclosure of Protected Information or the violation of the covenants set forth in sections 2, 3, or 4 would cause irreparable harm to\nVerso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected Information;\n(d) Employee has developed or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of\nthis Agreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and\nvaluable services to Verso Paper of an intellectual character and that Employee’s services will be difficult for Verso Paper to replace.\nEmployee further acknowledges and agrees that Verso Paper is providing Employee with significant consideration in this Agreement for\nentering into the Agreement and that Verso Paper’s remedies for any breach of this Agreement are in addition to and not in place of any\nother remedies Verso Paper may have at law or equity or under any other agreements.\n8. Section 409A of the Code\nThe parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and\nincorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the Department\nof Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof (“Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in\nthe event that Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A,\nVerso Paper and Employee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and\nprocedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to\npreserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and\nto avoid less favorable accounting or tax consequences for Verso Paper and/or (b) take such other actions as mutually determined to be\nnecessary or appropriate to exempt any amounts payable hereunder from Section 409A or to comply with the requirements of\nSection 409A and thereby avoid the application of penalty taxes thereunder.\n9. General\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee’s right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this\nAgreement or portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such\njurisdiction, the remainder of such provisions shall not thereby be affected and shall be given full effect, without regard to the invalid\nportion. It is the intention of the parties and Employee agrees, that if any court construes any provision or clause of this Agreement or\nany portion thereof to be illegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby,\nsuch court shall reduce the duration, area or matter of such provision and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the\nevent of the absence of either of these executives, or the vacancy of either of these positions, such other officer of Verso Paper as Verso\nPaper’s Board of Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Attorney’s fees. Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-\ndefaulting party all of the non-defaulting party’s costs and expenses, including attorney’s and experts’ fees in enforcing the provisions of\nthe Agreement as to which a breach is found.\n(g) Employee agrees that Verso Paper’s determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee’s obligations under this Agreement.\n(h) Common law duties. Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the\ncovenants set forth above prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference\nwith Verso Paper’s business and customer relationships.\n(i) Opportunity to review. Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with\nan independent attorney before signing this Agreement.\nIn witness whereof the parties hereto have caused this Agreement to be executed and delivered effective as of the date signed below by Employee\nand the duly authorized officer of Verso Paper.\nSigned (Employee):\n/s/ Michael Weinhold\nMichael Weinhold, Senior Vice President, Sales and Marketing\nDate:\n3/19/07\nWork address:\nVerso Paper:\n/s/ Ricardo Moncada\nRicardo Moncada, Vice President, Human Resources\nDate:\n3/19/07
6c889ccacbb7001b067a36fd76a6a54c.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 2 dex99e3.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is made February 7, 2008 between Blackbaud Inc., a Delaware corporation (“Blackbaud”), and Kintera, Inc., a\nDelaware corporation (“Company”).\n1. Purpose. Blackbaud and Company wish to explore a business possibility (the “Proposed Transaction”) under which each may disclose, by\nthemselves or through their respective representatives, attorneys or agents, its Confidential Information to the other.\nDefinition. “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to\nresearch, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering,\nhardware configuration information, marketing or finances, the identity of the parties, financial and business plans, strategies and projections, or that\nis of such a nature that would reasonably be construed as confidential or proprietary which Confidential Information is designated in writing to be\nconfidential or proprietary, or if given orally, is identified as confidential at the time of disclosure or confirmed promptly in writing as having been\ndisclosed as confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include: (i) information that at the time of\ndisclosure is generally available to the public or is otherwise available to the receiving party other than on a confidential basis; (ii) information that,\nafter disclosure, becomes generally available to the public by publication or otherwise through no fault of the receiving party; (iii) information\ndisclosed to the receiving party by a third party not under an obligation of confidentiality to the disclosing party; or (iv) information that can be\nclearly demonstrated to be developed by an employee, agent or contractor of the party independently of the disclosures by the disclosing party. In the\nevent that a party or its representative is required by applicable law, regulation or legal process to disclose any of the Confidential Information, such\nparty will notify the other party promptly so that the other party may seek a protective order or other appropriate remedy, consult with such party\nregarding taking steps to resist or narrow the scope of the required disclosure or, in the other party’s sole discretion, waive compliance with the terms\nof this Confidentiality Agreement. Such party and its representatives will cooperate fully with the other party and its representatives in any attempt\nby such party to obtain any such protective order or other remedy. In the event that no such protective order or other remedy is obtained, or that the\nother party waives compliance with the terms of this Agreement, such party will furnish only that portion of the Confidential Information which it is\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be\naccorded to the Confidential Information disclosed.\n2. Nondisclosure of Confidential Information. Blackbaud and Company agree, and agree to use its best efforts to cause any employee or\nthird party with access to Confidential Information, not to use the Confidential Information disclosed to it by the other party for its own use or for\nany purpose except to carry out discussions concerning and the undertaking of any business relationship between the two. Neither will disclose the\nConfidential Information of the other to third parties or to the receiving party’s employees except for such attorneys, bankers, advisors and\nemployees who are required to have the information in order to carry out the contemplated business. Each has had or will have such third parties and\nemployees to whom Confidential Information of the other is disclosed, or who will have access to Confidential Information of the other, be bound by\nan obligation of confidentiality in content substantially similar to this Agreement and will notify the other in writing of the names of each such third\nparty and employee upon request by the other party. Each agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information of the other in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized hereunder to have any such information, which measures shall include the highest degree of care that the receiving\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other in writing of any misuse or\nmisappropriation of Confidential Information of the other that may come to its attention. Each party understands that, except as otherwise agreed in\nwriting, the Confidential Information which it may receive concerning the other party’s future plans with respect to the business possibility is\ntentative and is not intended to represent firm decisions by the other party concerning the implementation of such plans.\nPage1of3\nMUTUAL NONDISCLOSURE AGREEMENT\nConfidential Information provided hereunder, by one party to the other, does not represent or imply any commitment beyond the express terms of\nthis Agreement.\n3. Return of Materials. Any materials or documents that have been furnished by one party to the other will be promptly returned or destroyed\n(with a certificate of destruction executed by an appropriate officer of recipient) where returning such material is impractical, accompanied by all\ncopies of such documentation, after the business possibility has been rejected or concluded.\n4. Patent or Copyright Infringement. Nothing in this Agreement is intended to grant any rights under any patent or copyright of either party,\nnor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, except the limited right to review such\nConfidential Information solely for the purposes of determining whether to enter into the proposed business relationship between the parties.\n5. Term. The foregoing commitments in this Agreement shall terminate three (3) years following the date of this Agreement.\n6. Miscellaneous. This Agreement shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided\nthat Confidential Information may not be assigned without the prior written consent of the disclosing party. Failure to enforce any provision of this\nAgreement shall not constitute a waiver of any term hereof. In the event that any of the provisions of this Agreement shall be held by a court or other\ntribunal of competent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such\nprovision shall be enforced to the maximum extent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or\ninvalidated. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same instrument. This Agreement constitutes the entire agreement\nbetween the parties concerning the confidentiality of the Confidential Information in connection with the Proposed Transaction and related matters\nand supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements,\nwhether oral or written, between the parties relating to the same and all past courses of dealing or industry custom.\n7. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of\nDelaware, and shall be binding upon the parties hereto in the United States and worldwide.\n8. Securities Laws. Each party hereby acknowledges that it is aware, and that it will advise such directors, officers, employees, consultants,\nand representatives who are informed as to the matters which are the subject of this Agreement, that securities laws prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that\nsuch person is likely to purchase or sell such securities. Each party agrees it will abide by these laws with respect to its receipt and possession of\nConfidential Information of the other.\n9. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty’s business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach of any covenant or\nagreement set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable\ninjury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other party shall be\nentitled to obtain injunctive relief against the threatened\nPage2of3\nMUTUAL NONDISCLOSURE AGREEMENT\nbreach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.\nBLACKBAUD, INC.\nBy:\n/s/ Robert E. Hughes\nPrinted Name: Robert E. Hughes\nTitle:\nVP of Corporate Development\nDate:\n2/7/08\nKINTERA, INC. (“Company”)\nBy:\n/s/ Richard LaBarbera\nPrinted Name: Richard LaBarbera\nTitle:\nCEO & President\nDate:\n2/7/ 08\nPage3of3	EX-99.(E)(3) 2 dex99e3.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is made February 7, 2008 between Blackbaud Inc., a Delaware corporation (“Blackbaud”), and Kintera, Inc., a\nDelaware corporation (“Company”).\n1. Purpose. Blackbaud and Company wish to explore a business possibility (the “Proposed Transaction”) under which each may disclose, by\nthemselves or through their respective representatives, attorneys or agents, its Confidential Information to the other.\nDefinition. “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to\nresearch, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering,\nhardware configuration information, marketing or finances, the identity of the parties, financial and business plans, strategies and projections, or that\nis of such a nature that would reasonably be construed as confidential or proprietary which Confidential Information is designated in writing to be\nconfidential or proprietary, or if given orally, is identified as confidential at the time of disclosure or confirmed promptly in writing as having been\ndisclosed as confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include: (i) information that at the time of\ndisclosure is generally available to the public or is otherwise available to the receiving party other than on a confidential basis; (ii) information that,\nafter disclosure, becomes generally available to the public by publication or otherwise through no fault of the receiving party; (iii) information\ndisclosed to the receiving party by a third party not under an obligation of confidentiality to the disclosing party; or (iv) information that can be\nclearly demonstrated to be developed by an employee, agent or contractor of the party independently of the disclosures by the disclosing party. In the\nevent that a party or its representative is required by applicable law, regulation or legal process to disclose any of the Confidential Information, such\nparty will notify the other party promptly so that the other party may seek a protective order or other appropriate remedy, consult with such party\nregarding taking steps to resist or narrow the scope of the required disclosure or, in the other party’s sole discretion, waive compliance with the terms\nof this Confidentiality Agreement. Such party and its representatives will cooperate fully with the other party and its representatives in any attempt\nby such party to obtain any such protective order or other remedy. In the event that no such protective order or other remedy is obtained, or that the\nother party waives compliance with the terms of this Agreement, such party will furnish only that portion of the Confidential Information which it is\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be\naccorded to the Confidential Information disclosed.\n2. Nondisclosure of Confidential Information. Blackbaud and Company agree, and agree to use its best efforts to cause any employee or\nthird party with access to Confidential Information, not to use the Confidential Information disclosed to it by the other party for its own use or for\nany purpose except to carry out discussions concerning and the undertaking of any business relationship between the two. Neither will disclose the\nConfidential Information of the other to third parties or to the receiving party’s employees except for such attorneys, bankers, advisors and\nemployees who are required to have the information in order to carry out the contemplated business. Each has had or will have such third parties and\nemployees to whom Confidential Information of the other is disclosed, or who will have access to Confidential Information of the other, be bound by\nan obligation of confidentiality in content substantially similar to this Agreement and will notify the other in writing of the names of each such third\nparty and employee upon request by the other party. Each agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information of the other in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized hereunder to have any such information, which measures shall include the highest degree of care that the receiving\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other in writing of any misuse or\nmisappropriation of Confidential Information of the other that may come to its attention. Each party understands that, except as otherwise agreed in\nwriting, the Confidential Information which it may receive concerning the other party’s future plans with respect to the business possibility is\ntentative and is not intended to represent firm decisions by the other party concerning the implementation of such plans.\nPage 1 of 3\nMUTUAL NONDISCLOSURE AGREEMENT\nConfidential Information provided hereunder, by one party to the other, does not represent or imply any commitment beyond the express terms of\nthis Agreement.\n3. Return of Materials. Any materials or documents that have been furnished by one party to the other will be promptly returned or destroyed\n(with a certificate of destruction executed by an appropriate officer of recipient) where returning such material is impractical, accompanied by all\ncopies of such documentation, after the business possibility has been rejected or concluded.\nnor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, except the limited right to review such\nConfidential Information solely for the purposes of determining whether to enter into the proposed business relationship between the parties.\n5. Term. The foregoing commitments in this Agreement shall terminate three (3) years following the date of this Agreement.\n6. Miscellaneous. This Agreement shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided\nthat Confidential Information may not be assigned without the prior written consent of the disclosing party. Failure to enforce any provision of this\nAgreement shall not constitute a waiver of any term hereof. In the event that any of the provisions of this Agreement shall be held by a court or other\ntribunal of competent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such\nprovision shall be enforced to the maximum extent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or\ninvalidated. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same instrument. This Agreement constitutes the entire agreement\nbetween the parties concerning the confidentiality of the Confidential Information in connection with the Proposed Transaction and related matters\nand supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements,\nwhether oral or written, between the parties relating to the same and all past courses of dealing or industry custom.\n7. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of\nDelaware, and shall be binding upon the parties hereto in the United States and worldwide.\n8. Securities L.aws. Each party hereby acknowledges that it is aware, and that it will advise such directors, officers, employees, consultants,\nand representatives who are informed as to the matters which are the subject of this Agreement, that securities laws prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that\nsuch person is likely to purchase or sell such securities. Each party agrees it will abide by these laws with respect to its receipt and possession of\nConfidential Information of the other.\n9. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty’s business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach of any covenant or\nagreement set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable\ninjury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other party shall be\nentitled to obtain injunctive relief against the threatened\nPage 2 of 3\nMUTUAL NONDISCLOSURE AGREEMENT breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages. Page 3 of 3\nBLACKBAUD, INC.\nBy: /s/ Robert E. Hughes\nPrinted Name: Robert E. Hughes\nTitle: VP of Corporate Development\nDate: 2/7/08\nKINTERA, INC. (“Company”)\nBy: /s/ Richard LaBarbera\nPrinted Name: Richard LaBarbera\nTitle: CEO & President\nDate: 2/7/ 08	EX-99.(E)(3) 2 dex99e3.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is made February 7, 2008 between Blackbaud Inc., a Delaware corporation ("Blackbaud"), and Kintera, Inc., a\nDelaware corporation ("Company").\n1. Purpose. Blackbaud and Company wish to explore a business possibility (the "Proposed Transaction") under which each may disclose, by\nthemselves or through their respective representatives, attorneys or agents, its Confidential Information to the other.\nDefinition. "Confidential Information" means any information, technical data, or know-how, including, but not limited to, that which relates to\nresearch, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering,\nhardware configuration information, marketing or finances, the identity of the parties, financial and business plans, strategies and projections, or that\nis of such a nature that would reasonably be construed as confidential or proprietary which Confidential Information is designated in writing to be\nconfidential or proprietary, or if given orally, is identified as confidential at the time of disclosure or confirmed promptly in writing as having been\ndisclosed as confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include: (i) information that at the time\nof\ndisclosure is generally available to the public or is otherwise available to the receiving party other than on a confidential basis; (ii) information that,\nafter disclosure, becomes generally available to the public by publication or otherwise through no fault of the receiving party; (iii) information\ndisclosed to the receiving party by a third party not under an obligation of confidentiality to the disclosing party; or (iv) information that can be\nclearly demonstrated to be developed by an employee, agent or contractor of the party independently of the disclosures by the disclosing party. In\nthe\nevent\nthat\na\nparty\nor\nits\nrepresentative\nis\nrequired\nby\napplicable\nlaw,\nregulation\nor\nlegal\nprocess\nto\ndisclose\nany\nof\nthe\nConfidential\nInformation,\nsuch\nparty will notify the other party promptly so that the other party may seek a protective order or other appropriate remedy, consult with such party\nregarding taking steps to resist or narrow the scope of the required disclosure or, in the other party's sole discretion, waive compliance with the terms\nof\nthis Confidentiality Agreement. Such party and its representatives will cooperate fully with the other party and its representatives in any attempt\nby such party to obtain any such protective order or other remedy. In the event that no such protective order or other remedy is obtained, or that the\nother party waives compliance with the terms of this Agreement, such party will furnish only that portion of the Confidential Information which it is\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be\naccorded to the Confidential Information disclosed.\n2.\nNondisclosure\nof\nConfidential\nInformation.\nBlackbaud\nand\nCompany\nagree,\nand\nagree\nto\nuse\nits\nbest\nefforts\nto\ncause\nany\nemployee\nor\nthird party with access to Confidential Information, not to use the Confidential Information disclosed to it by the other party for its own use or for\nany purpose except to carry out discussions concerning and the undertaking of any business relationship between the two. Neither will disclose the\nConfidential Information of the other to third parties or to the receiving party's employees except for such attorneys, bankers, advisors and\nemployees who are required to have the information in order to carry out the contemplated business. Each has had or will have such third parties and\nemployees to whom Confidential Information of the other is disclosed, or who will have access to Confidential Information of the other, be bound by\nan obligation of confidentiality in content substantially similar to this Agreement and will notify the other in writing of the names of each such third\nparty and employee upon request by the other party. Each agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information of the other in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized hereunder to have any such information, which measures shall include the highest degree of care that the receiving\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other in writing of any misuse or\nmisappropriation of Confidential Information of the other that may come to its attention. Each party understands that, except as otherwise agreed\nin\nwriting, the Confidential Information which it may receive concerning the other party's future plans with respect to the business possibility is\ntentative and is not intended to represent firm decisions by the other party concerning the implementation of such plans.\nPage 1 of 3\nMUTUAL NONDISCLOSURE AGREEMENT\nConfidential Information provided hereunder, by one party to the other, does not represent or imply any commitment beyond the express terms of\nthis Agreement.\n3. Return of Materials. Any materials or documents that have been furnished by one party to the other will be promptly returned or destroyed\n(with a certificate of destruction executed by an appropriate officer of recipient) where returning such material is impractical, accompanied by all\ncopies of such documentation, after the business possibility has been rejected or concluded.\n4. Patent or Copyright Infringement. Nothing in this Agreement is intended to grant any rights under any patent or copyright of either party,\nnor shall this Agreement grant either party any rights in or to the other party's Confidential Information, except the limited right to review such\nConfidential Information solely for the purposes of determining whether to enter into the proposed business relationship between the parties.\n5. Term. The foregoing commitments in this Agreement shall terminate three (3) years following the date of this Agreement.\n6. Miscellaneous. This Agreement shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided\nthat Confidential Information may not be assigned without the prior written consent of the disclosing party. Failure to enforce any provision of this\nAgreement shall not constitute a waiver of any term hereof. In the event that any of the provisions of this Agreement shall be held by a court or other\ntribunal of competent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such\nprovision shall be enforced to the maximum extent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or\ninvalidated. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same instrument. This Agreement constitutes the entire agreement\nbetween the parties concerning the confidentiality of the Confidential Information in connection with the Proposed Transaction and related matters\nand supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements,\nwhether oral or written, between the parties relating to the same and all past courses of dealing or industry custom.\n7. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of\nDelaware, and shall be binding upon the parties hereto in the United States and worldwide.\n8. Securities Laws. Each party hereby acknowledges that it is aware, and that it will advise such directors, officers, employees, consultants,\nand representatives who are informed as to the matters which are the subject of this Agreement, that securities laws prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that\nsuch person is likely to purchase or sell such securities. Each party agrees it will abide by these laws with respect to its receipt and possession\nof\nConfidential Information of the other.\n9. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty's business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach of any covenant or\nagreement set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable\ninjury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other party shall\nbe\nentitled to obtain injunctive relief against the threatened\nPage 2 of 3\nMUTUAL NONDISCLOSURE AGREEMENT\nbreach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.\nBLACKBAUD, INC.\nBy:\n/s/ Robert E. Hughes\nPrinted Name: Robert E. Hughes\nTitle:\nVP of Corporate Development\nDate:\n2/7/08\nKINTERA INC. ("Company")\nBy:\n/s/ Richard LaBarbera\nPrinted Name: Richard LaBarbera\nTitle:\nCEO & President\nDate:\n2/7/08\nPage 3 of 3	EX-99.(E)(3) 2 dex99e3.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is made February 7, 2008 between Blackbaud Inc., a Delaware corporation (“Blackbaud”), and Kintera, Inc., a\nDelaware corporation (“Company”).\n1. Purpose. Blackbaud and Company wish to explore a business possibility (the “Proposed Transaction”) under which each may disclose, by\nthemselves or through their respective representatives, attorneys or agents, its Confidential Information to the other.\nDefinition. “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to\nresearch, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering,\nhardware configuration information, marketing or finances, the identity of the parties, financial and business plans, strategies and projections, or that\nis of such a nature that would reasonably be construed as confidential or proprietary which Confidential Information is designated in writing to be\nconfidential or proprietary, or if given orally, is identified as confidential at the time of disclosure or confirmed promptly in writing as having been\ndisclosed as confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include: (i) information that at the time of\ndisclosure is generally available to the public or is otherwise available to the receiving party other than on a confidential basis; (ii) information that,\nafter disclosure, becomes generally available to the public by publication or otherwise through no fault of the receiving party; (iii) information\ndisclosed to the receiving party by a third party not under an obligation of confidentiality to the disclosing party; or (iv) information that can be\nclearly demonstrated to be developed by an employee, agent or contractor of the party independently of the disclosures by the disclosing party. In the\nevent that a party or its representative is required by applicable law, regulation or legal process to disclose any of the Confidential Information, such\nparty will notify the other party promptly so that the other party may seek a protective order or other appropriate remedy, consult with such party\nregarding taking steps to resist or narrow the scope of the required disclosure or, in the other party’s sole discretion, waive compliance with the terms\nof this Confidentiality Agreement. Such party and its representatives will cooperate fully with the other party and its representatives in any attempt\nby such party to obtain any such protective order or other remedy. In the event that no such protective order or other remedy is obtained, or that the\nother party waives compliance with the terms of this Agreement, such party will furnish only that portion of the Confidential Information which it is\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be\naccorded to the Confidential Information disclosed.\n2. Nondisclosure of Confidential Information. Blackbaud and Company agree, and agree to use its best efforts to cause any employee or\nthird party with access to Confidential Information, not to use the Confidential Information disclosed to it by the other party for its own use or for\nany purpose except to carry out discussions concerning and the undertaking of any business relationship between the two. Neither will disclose the\nConfidential Information of the other to third parties or to the receiving party’s employees except for such attorneys, bankers, advisors and\nemployees who are required to have the information in order to carry out the contemplated business. Each has had or will have such third parties and\nemployees to whom Confidential Information of the other is disclosed, or who will have access to Confidential Information of the other, be bound by\nan obligation of confidentiality in content substantially similar to this Agreement and will notify the other in writing of the names of each such third\nparty and employee upon request by the other party. Each agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information of the other in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized hereunder to have any such information, which measures shall include the highest degree of care that the receiving\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other in writing of any misuse or\nmisappropriation of Confidential Information of the other that may come to its attention. Each party understands that, except as otherwise agreed in\nwriting, the Confidential Information which it may receive concerning the other party’s future plans with respect to the business possibility is\ntentative and is not intended to represent firm decisions by the other party concerning the implementation of such plans.\nPage1of3\nMUTUAL NONDISCLOSURE AGREEMENT\nConfidential Information provided hereunder, by one party to the other, does not represent or imply any commitment beyond the express terms of\nthis Agreement.\n3. Return of Materials. Any materials or documents that have been furnished by one party to the other will be promptly returned or destroyed\n(with a certificate of destruction executed by an appropriate officer of recipient) where returning such material is impractical, accompanied by all\ncopies of such documentation, after the business possibility has been rejected or concluded.\n4. Patent or Copyright Infringement. Nothing in this Agreement is intended to grant any rights under any patent or copyright of either party,\nnor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, except the limited right to review such\nConfidential Information solely for the purposes of determining whether to enter into the proposed business relationship between the parties.\n5. Term. The foregoing commitments in this Agreement shall terminate three (3) years following the date of this Agreement.\n6. Miscellaneous. This Agreement shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided\nthat Confidential Information may not be assigned without the prior written consent of the disclosing party. Failure to enforce any provision of this\nAgreement shall not constitute a waiver of any term hereof. In the event that any of the provisions of this Agreement shall be held by a court or other\ntribunal of competent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such\nprovision shall be enforced to the maximum extent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or\ninvalidated. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same instrument. This Agreement constitutes the entire agreement\nbetween the parties concerning the confidentiality of the Confidential Information in connection with the Proposed Transaction and related matters\nand supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements,\nwhether oral or written, between the parties relating to the same and all past courses of dealing or industry custom.\n7. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of\nDelaware, and shall be binding upon the parties hereto in the United States and worldwide.\n8. Securities Laws. Each party hereby acknowledges that it is aware, and that it will advise such directors, officers, employees, consultants,\nand representatives who are informed as to the matters which are the subject of this Agreement, that securities laws prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that\nsuch person is likely to purchase or sell such securities. Each party agrees it will abide by these laws with respect to its receipt and possession of\nConfidential Information of the other.\n9. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty’s business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach of any covenant or\nagreement set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable\ninjury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other party shall be\nentitled to obtain injunctive relief against the threatened\nPage2of3\nMUTUAL NONDISCLOSURE AGREEMENT\nbreach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.\nBLACKBAUD, INC.\nBy:\n/s/ Robert E. Hughes\nPrinted Name: Robert E. Hughes\nTitle:\nVP of Corporate Development\nDate:\n2/7/08\nKINTERA, INC. (“Company”)\nBy:\n/s/ Richard LaBarbera\nPrinted Name: Richard LaBarbera\nTitle:\nCEO & President\nDate:\n2/7/ 08\nPage3of3
6e023262e1d6b3a98d36e937a55b59f5.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON -COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your employment and your eligibility for the payments\ndescribed in Paragraph 2 below, and in recognition of the highly competitive nature of the Company’s business, you agree as follows:\n1. Protection of Confidential Information.\n(a) You acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c) For purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Competition Period”), you shall not, directly or\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the\nmanufacture, design and/or sale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shall have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\n(c) If you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay”),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\n(d) If you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e) If you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f) For purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g) In order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision. You must sign the separation\nagreement within 22 days of receiving it.\n(h) To the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\n3. If you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5. Severability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6. Waiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7. Entire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n8. At-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9. Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs and/or expenses pursuant\nto applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nPlease sign and return this Agreement on or before your first day of employment.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Gary Muto\nMark G. Morrison\nExecutive Vice President, Human Resources\nDate: 11-6 -08\nGary Muto\nPresident, Ann Taylor LOFT\nDate:	EX-10.1 2 dex101.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT Exhibit 10.1\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your employment and your eligibility for the payments described in Paragraph 2 below, and in recognition of the highly competitive nature of the Company’s business, you agree as follows: 1.\n@)\n(b)\n©\n(a)\n(b)\nProtection of Confidential Information.\nYou acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\nAccordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(i) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\nFor purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\nNon-solicitation of Associates; Non-competition.\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Competition Period”), you shall not, directly or\n©\n(d)\n(®)\n®\n(8)\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the\nmanufacture, design and/or sale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shall have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\nIf you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay™),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\nIf you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\nIf you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\nFor purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\nIn order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision. You must sign the separation\nagreement within 22 days of receiving it.\n(h)\nTo the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\nNotwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\nIf you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\nIntellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\nSeverability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\nWaiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\nEntire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n \nAt-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9.  Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs and/or expenses pursuant\nto applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nPlease sign and return this Agreement on or before your first day of employment.\nANN TAYLOR: ASSOCIATE:\nBY: /s/ Mark G. Morrison /s/  Gary Muto\nMark G. Morrison Gary Muto\nExecutive Vice President, Human Resources President, Ann Taylor LOFT\nDate: 11-6-08 Date:	EX-10.1 2 dex101.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the "Company"), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your employment and your eligibility for the payments\ndescribed in Paragraph 2 below, and in recognition of the highly competitive nature of the Company's business, you agree as follows:\n1.\nProtection of Confidential Information.\n(a)\nYou acknowledge that your employment by the Company involves your obtaining knowledge of Confidentia Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i)\nexcept in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany's standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii)\nyou will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating\nto\nthe\nbusiness\nof\nthe\nCompany\nand\nall\nother\nCompany\nproperty\nwhich\nyou\nobtained\nor\ndeveloped\nwhile\nemployed\nby,\nor\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c)\nFor purposes of this Agreement, "Confidential Information" refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidentia or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a)\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the "Non-Solicitation Period"), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the "Non-Competition Period"), you shall not, directly or\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, "Competitor" means a business or other entity engaged in the\nmanufacture, design and/or sale of women's apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shal have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\n(c)\nIf you are terminated by the Company without cause (as defined Paragraph 2(f) below, "Cause") or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 ("Separation Pay"),\npayable in substantially equal installments in accordance with the Company's regular payroll cycle, and you will continue to receive all\nbenefits under the Company's medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\n(d)\nIf you are terminated by the Company without Cause and have never been a "Section 162(m) Employee" (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n("AMIP") (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become "covered employees" within the meaning of Section 162(m) ("Section\n162(m) Employee") of the Internal Revenue Code of 1986, as amended (the "Code"), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e)\nIf you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f)\nFor purposes of this Agreement, "Cause" shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g)\nIn order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d)\nand\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision. You must sign the separation\nagreement within 22 days of receiving it.\n(h)\nTo the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with\nrespect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company's 2003 Equity Incentive Plan).\n3.\nIf you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4.\nIntellectual Property.. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company's business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5.\nSeverability. & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6.\nWaiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7.\nEntire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control\n(as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n8.\nAt-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n"at-will" which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9.\nNothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys' fees, costs and/or expenses pursuant\nto applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nPlease sign and return this Agreement on or before your first day of employment.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Gary Muto\nMark G. Morrison\nGary Muto\nExecutive Vice President, Human Resources\nPresident, Ann Taylor LOFT\nDate: 11-6-08\nDate:	EX-10.1 2 dex101.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON -COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your employment and your eligibility for the payments\ndescribed in Paragraph 2 below, and in recognition of the highly competitive nature of the Company’s business, you agree as follows:\n1. Protection of Confidential Information.\n(a) You acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c) For purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Competition Period”), you shall not, directly or\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the\nmanufacture, design and/or sale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shall have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\n(c) If you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay”),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\n(d) If you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e) If you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f) For purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g) In order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision. You must sign the separation\nagreement within 22 days of receiving it.\n(h) To the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\n3. If you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5. Severability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6. Waiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7. Entire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n8. At-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9. Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs and/or expenses pursuant\nto applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nPlease sign and return this Agreement on or before your first day of employment.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Gary Muto\nMark G. Morrison\nExecutive Vice President, Human Resources\nDate: 11-6 -08\nGary Muto\nPresident, Ann Taylor LOFT\nDate:
6ec8ff0b13d72fd1164419f10e8e7f41.pdf	effective_date jurisdiction party term	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is made as of this day of\n, 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the “Company”), and Joan Mannick (the “Employee”).\nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee’s employment and/or the continuance of that employment with the Company is\ncontingent upon Employee’s agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company’s business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company’s business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company’s or any Affiliate’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of\nEmployee’s duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee’s\nemployment with the Company. The Employee shall use the Employee’s best efforts to prevent unauthorized publication or disclosure of any of\nthe Company’s Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee’s custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee’s duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee’s employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nc. The Employee agrees that Employee’s obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee’s obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company’s business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state or\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order.”\n4. Non-Disparagement.\nThe Employee shall not, either during Employee’s employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee’s future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee’s continuing obligations to the Company hereunder.\nc. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee’s employment for any period of time and does not change the at-will nature of Employee’s\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany’s assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee’s\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\ni. Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC.\nACKNOWLEDGED AND AGREED:\nBy:\nName: Chen Schor\nJoan Mannick\nTitle: Chief Executive Officer	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is made as of this __ day of , 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the “Company”), and Joan Mannick (the “Employee”).\n \nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee’s employment and/or the continuance of that employment with the Company is\ncontingent upon Employee’s agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company’s business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company’s business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company’s or any Affiliate’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of\nEmployee’s duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee’s\nemployment with the Company. The Employee shall use the Employee’s best efforts to prevent unauthorized publication or disclosure of any of\nthe Company’s Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee’s custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee’s duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee’s employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nc. The Employee agrees that Employee’s obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee’s obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company’s business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state or\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order.”\n4. Non-Disparagement.\nThe Employee shall not, either during Employee’s employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee’s future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee’s continuing obligations to the Company hereunder.\n \nc. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee’s employment for any period of time and does not change the at-will nature of Employee’s\nemployment.\n \nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany’s assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee’s\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n \ni. Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREQF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC. ACKNOWLEDGED AND AGREED:\nBy:\nName: Chen Schor Joan Mannick\nTitle: Chief Executive Officer	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this "Agreement") is made as of this day of 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the "Company."), and Joan Mannick (the "Employee").\nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee's employment and/or the continuance of that employment with the Company\nis\ncontingent upon Employee's agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company's business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company's business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company's or any Affiliate's business or financial affairs (collectively, "Proprietary. Information") is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance\nof\nEmployee's duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee's\nemployment with the Company. The Employee shall use the Employee's best efforts to prevent unauthorized publication or disclosure of any of\nthe Company's Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee's custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee's duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee's employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nC. The Employee agrees that Employee's obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee's obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company's business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state\nor\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: "An individual shall not be held criminally or civilly liable under any Federal or State trade secret\nlaw\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor\nreporting\na\nsuspected\nviolation\nof\nlaw\nmay\ndisclose\nthe\ntrade\nsecret\nto\nthe\nattorney\nof\nthe\nindividual\nand\nuse\nthe\ntrade\nsecret\ninformation\nin\nthe\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order."\n4. Non-Disparagement.\nThe Employee shall not, either during Employee's employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee's future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee's continuing obligations to the Company hereunder.\nC. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee's employment for any period of time and does not change the at-will nature of Employee's\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany's assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability.. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee's\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\ni. Captions The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC.\nACKNOWLEDGED AND AGREED:\nBy:\nName: Chen Schor\nJoan Mannick\nTitle: Chief Executive Officer	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is made as of this day of\n, 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the “Company”), and Joan Mannick (the “Employee”).\nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee’s employment and/or the continuance of that employment with the Company is\ncontingent upon Employee’s agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company’s business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company’s business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company’s or any Affiliate’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of\nEmployee’s duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee’s\nemployment with the Company. The Employee shall use the Employee’s best efforts to prevent unauthorized publication or disclosure of any of\nthe Company’s Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee’s custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee’s duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee’s employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nc. The Employee agrees that Employee’s obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee’s obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company’s business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state or\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order.”\n4. Non-Disparagement.\nThe Employee shall not, either during Employee’s employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee’s future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee’s continuing obligations to the Company hereunder.\nc. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee’s employment for any period of time and does not change the at-will nature of Employee’s\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany’s assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee’s\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\ni. Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC.\nACKNOWLEDGED AND AGREED:\nBy:\nName: Chen Schor\nJoan Mannick\nTitle: Chief Executive Officer
6ecf1846ef305f44deb8f5c64da3b999.pdf	effective_date jurisdiction party term	EX-10.1 3 dex101.htm CONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nExhibit 10.1\nCONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NONSOLICITATION AGREEMENT, (“Agreement”) made as of the 21st\nday of January, 2003, by and between\nBoston Safe Deposit &Trust Company, and on behalf of Mellon Bank, N.A, their parent companies, subsidiaries, affiliates, related entities,\nsuccessors and assigns (collectively “BSD&T”) and James P. Palermo (hereinafter “Palermo”) in consideration of employment by BSD&T and as a\ncondition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby acknowledged, agree as\nfollows:\nARTICLE 1: CONSIDERATION\nIn exchange for Palermo’s execution of this Agreement within thirty (30) days of his receipt of the Agreement and as a condition precedent, BSD&T\nagrees to provide Palermo with a stock option award of 20,000 shares of Mellon Financial Corporation (“MFC”) Type I options (“Award”) upon\napproval of the Award by MFC Human Resources Committee at its January 21, 2003 meeting and his execution of the individualized stock option\nagreement. The Award is subject to the terms and conditions set forth in the MFC Long Term Profit Incentive Plan (1996), which is incorporated by\nreference.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. Palermo recognizes, acknowledges and agrees that:\n(a) In the course of Palermo’s employment by BSD&T and as a Vice Chair of MFC Palermo has had and it will be necessary for Palermo to be\ngiven or have access to and become informed of confidential or proprietary information which BSD&T possesses or to which BSD&T has\nrights, which relates to BSD&T and which is not generally known to the public or in the trade and is a competitive asset of BSD&T, or\ninformation which constitutes a “trade secret” of BSD&T, as that term is defined by the Uniform Trade Secrets Act, as amended and approved\nby the National Conference of Commissioners on Uniform State Laws in 1985, including without limitation, (i) BSD&T’s planning data,\nrecords, observations and marketing strategies or techniques, computer programs, system documentation, manuals, formulae, processes,\noperation methods, machines, compositions; (ii) non-public terms of any new products, data bases, and investment strategies of BSD&T,\ntrading, arbitrage and/or hedging techniques or strategies,; (iii) non-public information relating to BSD&T personnel matters; (iv) BSD&T’s\nfinancial results and information about its business condition; (v) non-public terms of any investment, management or advisory agreement or\nother material contract of BSD&T; (vi) BSD&T’s proprietary software and related documents; (vii) BSD&T’s customer and client and\nprospecting lists, identifying information and contact persons at such customers and clients and prospects; and (viii) non-public material\ninformation concerning BSD&T’s clients or customers or their operations, condition (financial or otherwise) or plans whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form (collectively referred to herein as the “Confidential Information”);\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nPalermo, information rightfully known to Palermo without limitation on disclosure prior to its receipt from BSD&T or a customer of\nBSD&T, information rightfully received from a third party without limitation on disclosure and information generally made available by\nBSD&T or a client or customer of BSD&T to third parties without restriction on disclosure; or information required to be disclosed by law,\nrule, regulation or order without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under\nthis clause Palermo shall, if permissible under the law, rule or regulation, provide the Company with notice and the opportunity to contest such\ndisclosure.\n(c) The Confidential Information has been developed or acquired by BSD&T with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and exclusive property of BSD&T (and\nin some cases the property of a customer of BSD&T). BSD&T takes all reasonable measures to maintain its confidentiality and to guard its\nsecrecy. The Confidential Information is not generally known outside BSD&T and within BSD&T this information is confidential and used\nonly on a “need to know” basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. Palermo agrees\nthat the Confidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.01 Use of Confidential Information. Palermo agrees that the use, except for the sole purpose of conducting business on behalf of BSD&T or with\nprior written consent of BSD&T, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to BSD&T.\n2.02 Nondisclosure of Confidential Information. Palermo agrees that it is essential to the protection of BSD&T’s goodwill and to the maintenance of\nBSD&T’s competitive position that the Confidential Information be kept secret and Palermo agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to Palermo’s own advantage or the advantage of others either during employment or at any time thereafter.\n2.03 Additional Obligations. Palermo agrees that the obligations under this Article are in addition to, and not in limitation or preemption of, all other\nobligations of confidentiality which Palermo may have to BSD&T under its Code of Conduct or general or specific legal or equitable principles.\n2.04 Return of BSD&T Property. Palermo agrees that upon the termination of employment, for any reason or no reason, or at any other time BSD&T\nmay request, that Palermo will immediately return to BSD&T all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning BSD&T or\nacquired by the Palermo in the course and scope of employment (excluding only those documents relating solely to Palermo’s own salary and\nbenefits).\nARTICLE 3: NONSOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Nonsolicitation of Clients or Customers. Palermo covenants and agrees that during employment and that upon the termination his employment,\nfor any reason or no reason, including but not limited to resignation of employment, that for a period of twelve (12) months following the\ntermination of his employment (“Restricted Period”), Palermo, whether directly or indirectly, in any capacity whatsoever (whether as proprietor,\npartner, investor, shareholder, director, officer, employer, consultant, independent contractor, co-venturer, financier, agent, representative or\notherwise) shall not:\n2\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of the BSD&T, except as an employee of\nBSD&T or the parents, affiliates or related entity of BSD&T; provided that this Article 3 does not prohibit Palermo from being employed by or\naffiliated or associated with any person or entity after termination his employment with BSD&T so long as he does not have any involvement\non behalf of any person or entity with respect to soliciting, managing, administering, supporting or retaining the Relevant Financial Services\nbusiness provided or proposed to be provided to a Customer or Client of BSD&T; and/or\n(b) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer or\nClient of BSD&T for any other person or entity, divert, entice, or otherwise take away from BSD&T the business or patronage of any\nCustomer or Client of BSD&T, or attempt to do so, or solicit or induce any Customer or Client of BSD&T to terminate or reduce its\nrelationship with BSD&T.\n3.02 Nonsolicitation of Employees. Palermo covenants and agrees that during employment with BSD&T and during the Restricted Period that\nPalermo shall not, directly or indirectly, hire, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another person\nor enterprise in recruiting, soliciting or inducing) any employee of BSD&T to leave BSD&T or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. Palermo acknowledges and agrees that the Restricted Period is reasonable and valid in duration and scope\nand in all other respects. Palermo also represents that Palermo’s experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent Palermo from earning a livelihood, and acknowledge that it would cause BSD&T serious and irreparable injury and cost\nif Palermo were to use Palermo’s ability and knowledge in competition with BSD&T or to otherwise breach the obligations contained in this\nAgreement.\n3.04 Extension of Restricted Period. Palermo agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the length\nof time during which Palermo shall have been in breach of any of the provisions.\n3.05 Definitions. Palermo understands that for the purposes of this Agreement:\n(a) “Relevant Financial Services” trust and custody and related services, such as securities lending, investment accounting, pension\nmanagement, trade processing, performance measurement and investment analysis services, investment-related foreign exchange, risk management\nand fiduciary monitoring for pension funds i.e. defined benefit/defined contribution markets, foundations, investment managers and insurance\ncompanies provided in sub-custodian relationships with banks and joint relationships provided by BSD&T from time to time or investment\nmanagement services which at any time during the twelve (12) months preceding the termination of Palermo’s employment are or were within the\nscope of his responsibilities.\n(b) Palermo understands that for the purposes of this Agreement, “Customer” or “Client” of BSD&T means any person or entity who (i) is\nreceiving Relevant Financial Services from BSD&T on the date of termination of his employment with BSD&T or its parent, subsidiary, affiliate or\nrelated entity (ii) received such services for compensation at any time during the 1 year period\n3\nimmediately preceding the date of termination of his employment, or (iii) Palermo solicited, directly or indirectly, in whole or in part, on behalf of\nBSD&T to provide financial services within one (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty of Loyalty to BSD&T. Palermo agrees that at all times during employment by BSD&T, Palermo owes BSD&T a duty of loyalty and a\nduty to act in good faith. Palermo agrees that during employment Palermo will not individually, or in combination with any other Palermo or\ncompetitor of BSD&T, violate or breach the terms of this agreement, Code of Conduct or Mellon Securities Trading Policy.\n4.02 Cooperation. Palermo agrees that upon the termination of employment of Palermo, for any reason or no reason, including but not limited to\nresignation of employment, that Palermo will cooperate with BSD&T, upon reasonable notice and at reasonable times, in the prosecution and\ndefense of complaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions now in existence or that may be\nthreatened or brought in the future relating to events or occurrences that transpired while employed by BSD&T.\n4.03 Prior Employer Restrictions. Palermo warrants that Palermo is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict Palermo from performing Palermo’s employment duties or working with or on behalf of any customer or client. In addition,\nPalermo warrants that his employment with BSD&T does not violate any agreement, understanding or undertaking. Still further, Palermo agrees that\nPalermo will not in the course of performing duties for BSD&T violate any confidentiality obligations Palermo may owe to others.\n4.04 Disclosure of Agreement. Palermo acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to (a) any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5; SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nPalermo acknowledges and agrees that in performing the job duties of his position that Palermo provides BSD&T with a special, unique and\nextraordinary service.\nARTICLE 6; WORKS FOR HIRE.\n6.01 Property of BSD&T. Palermo understands and agrees that any and all rights or interests that Palermo holds or obtains in any designs,\ntrade secrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, patent rights,\ntrademarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, or otherwise obtained by Palermo during\nemployment with BSD&T which relate to or arise out of such employment with BSD&T are expressly regarded as property of BSD&T or “works\nfor hire” (the “Inventions”).\n6.02 Disclosure;Assignment. Palermo agrees to promptly disclose to BSD&T any and all such Inventions and deliver to BSD&T, upon its\nrequest, a written description of such Invention and\n4\nany available documentary or other materials evidencing such Invention. Palermo hereby assigns to BSD&T the sole and exclusive right to such\nInventions, and that, upon request of BSD&T, will execute and deliver any and all documents or instruments and take any other action which\nBSD&T shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and patent protection with respect\nto, or to otherwise protect BSD&T’ trade secrets and proprietary interest in, such Inventions.\n6.03 Survival. These obligations shall continue beyond the termination of Palermo’s employment, regardless of reason, with respect to such\nInventions conceived of, reduced to practice, or developed by Palermo during the term of employment with BSD&T.\n6.04 Fees. BSD&T agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by Palermo for any\nassistance rendered to BSD&T pursuant to this Article 6 and to promptly reimburse Palermo for all expenses incurred by Palermo in perfecting its\nproperty rights in the Inventions. Palermo’s obligations to assign Inventions shall not apply to any invention about which Palermo can prove that: (i)\nthe invention was developed entirely on Palermo own time and effort, (ii) no equipment, supplies, facilities, resources, trade secrets or confidential\ninformation of BSD&T was used in the development of the invention; (iii) the invention does not relate to the business of BSD&T or to BSD&T’\nactual or anticipated research and development; and (iv) the invention does not result from any work otherwise performed by Palermo for BSD&T.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. Palermo agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to BSD&T and that money damages would not provide an adequate remedy for BSD&T to protect and\npreserve the status quo. Therefore, PALERMO CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\na) that Palermo immediately return to BSD&T all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that Palermo be enjoined and restrained from using or disclosing any information\ncontained in such records; and\nb) that, for a period of twelve (12) months, Palermo be enjoined and restrained from soliciting any client or customer whom Palermo served\nor whose name became known to Palermo while employed by BSD&T, in any office and in any capacity; and\nc) that for a period of twelve (12) months, Palermo be enjoined and restrained from hiring, soliciting, or inducing any employee of BSD&T\nto leave BSD&T.\n7.02 Palermo agrees that BSD&T shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nBSD&T all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n5\n7.03 Jurisdiction. For purposes of Article 7.01, Palermo agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court which has original jurisdiction for judicial district or county in which Palermo last worked for BSD&T. In addition, this Agreement\nshall be construed, governed by, and enforced in accordance with the laws of said jurisdiction.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. PALERMO AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. BSD&T MAY TERMINATE PALERMO’S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST AS\nPALERMO MAY RESIGN AT ANY TIME.\nARTICLE 9: ASSIGNMENT\nPalermo expressly acknowledges and agrees that BSD&T may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of BSD&T or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of BSD&T, in either case without Palermo’s consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term “BSD&T” shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of Palermo’s employment by BSD&T.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability. Palermo agrees that the covenants set forth herein are reasonable and valid in duration and scope and in all other\nrespects. If any court or tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants\nshall not thereby be affected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or\nany part of the covenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court\nor tribunal is directed to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be\nenforceable. If any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be\ndeemed amended to delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid\nand enforceable.\n10.02 Additional Obligations. Palermo agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements he has with BSD&T may have to BSD&T or under its Code of Conduct or general or specific legal or equitable\nprinciples.\n10.03 Time to Consider Agreement. PALERMO ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK BSD&T\nQUESTIONS ABOUT IT. PALERMO ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH AN\nATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, PALERMO EXPRESSLY\nACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND FREELY AGREES\nTO ABIDE BY THEM.\n6\n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Massachusetts, and shall in all\nrespects be interpreted, enforced and governed under the laws of said State.\n10.05 Survival. Palermo acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nBSD&T’s interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. Palermo acknowledges and agree that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of Palermo’s employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n2/7/03\n/s/ James P. Palermo\nDate\nJames P. Palermo\nCorrected 3/17/03\nBoston Safe Deposit and Trust Company\n2/19/03\nBy: /s/ Linda B. Kane\nDate\nLinda B. Kane\nCorrected 3/17/03\nSeniorVicePresident, Human Resources\n7	EX-10.1 3 dex101.htm CONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nExhibit 10.1\nCONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NONSOLICITATION AGREEMENT, (“Agreement”) made as of the 215 day of January, 2003, by and between\nBoston Safe Deposit &Trust Company, and on behalf of Mellon Bank, N.A, their parent companies, subsidiaries, affiliates, related entities,\nsuccessors and assigns (collectively “BSD&T”) and James P. Palermo (hereinafter “Palermo”) in consideration of employment by BSD&T and as a\ncondition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby acknowledged, agree as\nfollows:\nARTICLE 1: CONSIDERATION\nIn exchange for Palermo’s execution of this Agreement within thirty (30) days of his receipt of the Agreement and as a condition precedent, BSD&T\nagrees to provide Palermo with a stock option award of 20,000 shares of Mellon Financial Corporation (“MFC”) Type I options (“Award”) upon\napproval of the Award by MFC Human Resources Committee at its January 21, 2003 meeting and his execution of the individualized stock option\nagreement. The Award is subject to the terms and conditions set forth in the MFC Long Term Profit Incentive Plan (1996), which is incorporated by\nreference.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. Palermo recognizes, acknowledges and agrees that:\n(a) In the course of Palermo’s employment by BSD&T and as a Vice Chair of MFC Palermo has had and it will be necessary for Palermo to be\ngiven or have access to and become informed of confidential or proprietary information which BSD&T possesses or to which BSD&T has\nrights, which relates to BSD&T and which is not generally known to the public or in the trade and is a competitive asset of BSD&T, or\ninformation which constitutes a “trade secret” of BSD&T, as that term is defined by the Uniform Trade Secrets Act, as amended and approved\nby the National Conference of Commissioners on Uniform State Laws in 1985, including without limitation, (i) BSD&T’s planning data,\nrecords, observations and marketing strategies or techniques, computer programs, system documentation, manuals, formulae, processes,\noperation methods, machines, compositions; (ii) non-public terms of any new products, data bases, and investment strategies of BSD&T,\ntrading, arbitrage and/or hedging techniques or strategies,; (iii) non-public information relating to BSD&T personnel matters; (iv) BSD&T’s\nfinancial results and information about its business condition; (v) non-public terms of any investment, management or advisory agreement or\nother material contract of BSD&T; (vi) BSD&T’s proprietary software and related documents; (vii) BSD&T’s customer and client and\nprospecting lists, identifying information and contact persons at such customers and clients and prospects; and (viii) non-public material\ninformation concerning BSD&T’s clients or customers or their operations, condition (financial or otherwise) or plans whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form (collectively referred to herein as the “Confidential Information”);\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nPalermo, information rightfully known to Palermo without limitation on disclosure prior to its receipt from BSD&T or a customer of\nBSD&T, information rightfully received from a third party without limitation on disclosure and information generally made available by\nBSD&T or a client or customer of BSD&T to third parties without restriction on disclosure; or information required to be disclosed by law,\nrule, regulation or order without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under\nthis clause Palermo shall, if permissible under the law, rule or regulation, provide the Company with notice and the opportunity to contest such\ndisclosure.\n \n(c) The Confidential Information has been developed or acquired by BSD&T with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and exclusive property of BSD&T (and\nin some cases the property of a customer of BSD&T). BSD&T takes all reasonable measures to maintain its confidentiality and to guard its\nsecrecy. The Confidential Information is not generally known outside BSD&T and within BSD&T this information is confidential and used\nonly on a “need to know” basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. Palermo agrees\nthat the Confidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.01 Use of Confidential Information. Palermo agrees that the use, except for the sole purpose of conducting business on behalf of BSD&T or with\nprior written consent of BSD&T, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to BSD&T.\n2.02 Nondisclosure of Confidential Information. Palermo agrees that it is essential to the protection of BSD&T’s goodwill and to the maintenance of\nBSD&T’s competitive position that the Confidential Information be kept secret and Palermo agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to Palermo’s own advantage or the advantage of others either during employment or at any time thereafter.\n2.03 Additional Obligations. Palermo agrees that the obligations under this Article are in addition to, and not in limitation or preemption of, all other\nobligations of confidentiality which Palermo may have to BSD&T under its Code of Conduct or general or specific legal or equitable principles.\n2.04 Return of BSD&T Property. Palermo agrees that upon the termination of employment, for any reason or no reason, or at any other time BSD&T\nmay request, that Palermo will immediately return to BSD&T all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning BSD&T or\nacquired by the Palermo in the course and scope of employment (excluding only those documents relating solely to Palermo’s own salary and\nbenefits).\nARTICLE 3: NONSOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Nonsolicitation of Clients or Customers. Palermo covenants and agrees that during employment and that upon the termination his employment,\nfor any reason or no reason, including but not limited to resignation of employment, that for a period of twelve (12) months following the\ntermination of his employment (“Restricted Period”), Palermo, whether directly or indirectly, in any capacity whatsoever (whether as proprietor,\npartner, investor, shareholder, director, officer, employer, consultant, independent contractor, co-venturer, financier, agent, representative or\notherwise) shall not:\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of the BSD&T, except as an employee of\nBSD&T or the parents, affiliates or related entity of BSD&T; provided that this Article 3 does not prohibit Palermo from being employed by or\naffiliated or associated with any person or entity after termination his employment with BSD&T so long as he does not have any involvement\non behalf of any person or entity with respect to soliciting, managing, administering, supporting or retaining the Relevant Financial Services\nbusiness provided or proposed to be provided to a Customer or Client of BSD&T; and/or\n(b) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer or\nClient of BSD&T for any other person or entity, divert, entice, or otherwise take away from BSD&T the business or patronage of any\nCustomer or Client of BSD&T, or attempt to do so, or solicit or induce any Customer or Client of BSD&T to terminate or reduce its\nrelationship with BSD&T.\n3.02 Nonsolicitation of Employees. Palermo covenants and agrees that during employment with BSD&T and during the Restricted Period that\nPalermo shall not, directly or indirectly, hire, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another person\nor enterprise in recruiting, soliciting or inducing) any employee of BSD&T to leave BSD&T or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. Palermo acknowledges and agrees that the Restricted Period is reasonable and valid in duration and scope\nand in all other respects. Palermo also represents that Palermo’s experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent Palermo from earning a livelihood, and acknowledge that it would cause BSD&T serious and irreparable injury and cost\nif Palermo were to use Palermo’s ability and knowledge in competition with BSD&T or to otherwise breach the obligations contained in this\nAgreement.\n3.04 Extension of Restricted Period. Palermo agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the length\nof time during which Palermo shall have been in breach of any of the provisions.\n3.05 Definitions. Palermo understands that for the purposes of this Agreement:\n(a) “Relevant Financial Services” trust and custody and related services, such as securities lending, investment accounting, pension\nmanagement, trade processing, performance measurement and investment analysis services, investment-related foreign exchange, risk management\nand fiduciary monitoring for pension funds i.e. defined benefit/defined contribution markets, foundations, investment managers and insurance\ncompanies provided in sub-custodian relationships with banks and joint relationships provided by BSD&T from time to time or investment\nmanagement services which at any time during the twelve (12) months preceding the termination of Palermo’s employment are or were within the\nscope of his responsibilities.\n(b) Palermo understands that for the purposes of this Agreement, “Customer” or “Client” of BSD&T means any person or entity who (i) is\nreceiving Relevant Financial Services from BSD&T on the date of termination of his employment with BSD&T or its parent, subsidiary, affiliate or\nrelated entity (ii) received such services for compensation at any time during the 1 year period\n3\nimmediately preceding the date of termination of his employment, or (iii) Palermo solicited, directly or indirectly, in whole or in part, on behalf of\nBSD&T to provide financial services within one (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty of Loyalty to BSD&T. Palermo agrees that at all times during employment by BSD&T, Palermo owes BSD&T a duty of loyalty and a\nduty to act in good faith. Palermo agrees that during employment Palermo will not individually, or in combination with any other Palermo or\ncompetitor of BSD&T, violate or breach the terms of this agreement, Code of Conduct or Mellon Securities Trading Policy.\n4.02 Cooperation. Palermo agrees that upon the termination of employment of Palermo, for any reason or no reason, including but not limited to\nresignation of employment, that Palermo will cooperate with BSD&T, upon reasonable notice and at reasonable times, in the prosecution and\ndefense of complaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions now in existence or that may be\nthreatened or brought in the future relating to events or occurrences that transpired while employed by BSD&T.\n \n4.03 Prior Employer Restrictions. Palermo warrants that Palermo is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict Palermo from performing Palermo’s employment duties or working with or on behalf of any customer or client. In addition,\nPalermo warrants that his employment with BSD&T does not violate any agreement, understanding or undertaking. Still further, Palermo agrees that\nPalermo will not in the course of performing duties for BSD&T violate any confidentiality obligations Palermo may owe to others.\n4.04 Disclosure of Agreement. Palermo acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to (a) any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5; SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nPalermo acknowledges and agrees that in performing the job duties of his position that Palermo provides BSD&T with a special, unique and\nextraordinary service.\nARTICLE 6; WORKS FOR HIRE.\n6.01 Property of BSD&T. Palermo understands and agrees that any and all rights or interests that Palermo holds or obtains in any designs,\ntrade secrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, patent rights,\ntrademarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, or otherwise obtained by Palermo during\nemployment with BSD&T which relate to or arise out of such employment with BSD&T are expressly regarded as property of BSD&T or “works\nfor hire” (the “Inventions™).\n6.02 Disclosure;Assignment. Palermo agrees to promptly disclose to BSD&T any and all such Inventions and deliver to BSD&T, upon its\nrequest, a written description of such Invention and\nany available documentary or other materials evidencing such Invention. Palermo hereby assigns to BSD&T the sole and exclusive right to such\nInventions, and that, upon request of BSD&T, will execute and deliver any and all documents or instruments and take any other action which\nBSD&T shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and patent protection with respect\nto, or to otherwise protect BSD&T” trade secrets and proprietary interest in, such Inventions.\n6.03 Survival. These obligations shall continue beyond the termination of Palermo’s employment, regardless of reason, with respect to such\nInventions conceived of, reduced to practice, or developed by Palermo during the term of employment with BSD&T.\n6.04 Fees. BSD&T agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by Palermo for any\nassistance rendered to BSD&T pursuant to this Article 6 and to promptly reimburse Palermo for all expenses incurred by Palermo in perfecting its\nproperty rights in the Inventions. Palermo’s obligations to assign Inventions shall not apply to any invention about which Palermo can prove that: (i)\nthe invention was developed entirely on Palermo own time and effort, (ii) no equipment, supplies, facilities, resources, trade secrets or confidential\ninformation of BSD&T was used in the development of the invention; (iii) the invention does not relate to the business of BSD&T or to BSD&T’\nactual or anticipated research and development; and (iv) the invention does not result from any work otherwise performed by Palermo for BSD&T.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. Palermo agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to BSD&T and that money damages would not provide an adequate remedy for BSD&T to protect and\npreserve the status quo. Therefore, PALERMO CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\na)  that Palermo immediately return to BSD&T all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that Palermo be enjoined and restrained from using or disclosing any information\ncontained in such records; and\nb) that, for a period of twelve (12) months, Palermo be enjoined and restrained from soliciting any client or customer whom Palermo served\nor whose name became known to Palermo while employed by BSD&T, in any office and in any capacity; and\nc) that for a period of twelve (12) months, Palermo be enjoined and restrained from hiring, soliciting, or inducing any employee of BSD&T\nto leave BSD&T.\n7.02 Palermo agrees that BSD&T shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nBSD&T all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n7.03 Jurisdiction. For purposes of Article 7.01, Palermo agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court which has original jurisdiction for judicial district or county in which Palermo last worked for BSD&T. In addition, this Agreement\nshall be construed, governed by, and enforced in accordance with the laws of said jurisdiction.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. PALERMO AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. BSD&T MAY TERMINATE PALERMO’S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST AS\nPALERMO MAY RESIGN AT ANY TIME.\nARTICLE 9: ASSIGNMENT\nPalermo expressly acknowledges and agrees that BSD&T may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of BSD&T or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of BSD&T, in either case without Palermo’s consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term “BSD&T” shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of Palermo’s employment by BSD&T.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability. Palermo agrees that the covenants set forth herein are reasonable and valid in duration and scope and in all other\nrespects. If any court or tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants\nshall not thereby be affected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or\nany part of the covenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court\nor tribunal is directed to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be\nenforceable. If any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be\ndeemed amended to delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid\nand enforceable.\n10.02 Additional Obligations. Palermo agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements he has with BSD&T may have to BSD&T or under its Code of Conduct or general or specific legal or equitable\nprinciples.\n10.03 Time to Consider Agreement. PALERMO ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK BSD&T\nQUESTIONS ABOUT IT. PALERMO ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH AN\nATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, PALERMO EXPRESSLY\nACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND FREELY AGREES\nTO ABIDE BY THEM.\n \n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Massachusetts, and shall in all\nrespects be interpreted, enforced and governed under the laws of said State.\n10.05 Survival. Palermo acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nBSD&T’s interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. Palermo acknowledges and agree that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of Palermo’s employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n/s/  James P. Palermo\n2/7/03\nDate James P. Palermo\nCorrected 3/17/03\nBoston Safe Deposit and Trust Company\nBy: /s/ Linda B. Kane\n2/19/03\nDate Linda B. Kane\nCorrected 3/17/03 SeniorVicePresident, Human Resources	EX-10.1 3 dex101.htm CONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nExhibit 10.1\nCONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NONSOLICITATION AGREEMENT, ("Agreement") made as of the 21st day of January, 2003, by and between\nBoston Safe Deposit &Trust Company, and on behalf of Mellon Bank, N.A, their parent companies, subsidiaries, affiliates, related entities,\nsuccessors and assigns (collectively "BSD&T") and James P. Palermo (hereinafter "Palermo") in consideration of employment by BSD&T and as\na\ncondition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby acknowledged, agree\nas\nfollows:\nARTICLE 1: CONSIDERATION\nIn exchange for Palermo's execution of this Agreement within thirty (30) days of his receipt of the Agreement and as a condition precedent, BSD&T\nagrees to provide Palermo with a stock option award of 20,000 shares of Mellon Financial Corporation ("MFC") Type I options ""Award") upon\napproval of the Award by MFC Human Resources Committee at its January 21, 2003 meeting and his execution of the individualized stock option\nagreement. The Award is subject to the terms and conditions set forth in the MFC Long Term Profit Incentive Plan (1996), which is incorporated\nby\nreference.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. Palermo recognizes, acknowledges and agrees that:\n(a) In the course of Palermo's employment by BSD&T and as a Vice Chair of MFC Palermo has had and it will be necessary for Palermo to be\ngiven or have access to and become informed of confidential or proprietary information which BSD&T possesses or to which BSD&T has\nrights, which relates to BSD&T and which is not generally known to the public or in the trade and is a competitive asset of BSD&T, or\ninformation which constitutes a "trade secret" of BSD&T, as that term is defined by the Uniform Trade Secrets Act, as amended and approved\nby\nthe National Conference of Commissioners on Uniform State Laws in 1985, including without limitation, (i) BSD&T's planning data,\nrecords, observations and marketing strategies or techniques, computer programs, system documentation, manuals, formulae, processes,\noperation methods, machines, compositions; (ii) non-public terms of any new products, data bases, and investment strategies of BSD&T,\ntrading, arbitrage and/or hedging techniques or strategies,; (iii) non-public information relating to BSD&T personnel matters; (iv) BSD&T's\nfinancial results and information about its business condition; (v) non-public terms of any investment, management or advisory agreement or\nother material contract of BSD&T; (vi) BSD&T's proprietary software and related documents; (vii) BSD&T's customer and client and\nprospecting lists, identifying information and contact persons at such customers and clients and prospects; and (viii) non-public material\ninformation concerning BSD&T's clients or customers or their operations, condition (financial or otherwise) or plans whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form (collectively referred to herein as the "Confidential Information");\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nPalermo, information rightfully known to Palermo without limitation on disclosure prior to its receipt from BSD&T or a customer of\nBSD&T, information rightfully received from a third party without limitation on disclosure and information generally made available by\nBSD&T or a client or customer of BSD&T to third parties without restriction on disclosure; or information required to be disclosed by law,\nrule, regulation or order without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under\nthis clause Palermo shall, if permissible under the law, rule or regulation, provide the Company with notice and the opportunity to contest such\ndisclosure.\n(c) The Confidential Information has been developed or acquired by BSD&T with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and exclusive property of BSD&T (and\nin some cases the property of a customer of BSD&T). BSD&T takes all reasonable measures to maintain its confidentiality and to guard its\nsecrecy. The Confidential Information is not generally known outside BSD&T and within BSD&T this information is confidential and used\nonly on a "need to know" basis. The Confidentia Information is unique and cannot be lawfully duplicated or easily acquired. Palermo agrees\nthat the Confidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.01 Use of Confidential Information. Palermo agrees that the use, except for the sole purpose of conducting business on behalf of BSD&T or with\nprior written consent of BSD&T, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to BSD&T.\n2.02 Nondisclosure of Confidential Information. Palermo agrees that it is essential to the protection of BSD&T's goodwill and to the maintenance of\nBSD&T's competitive position that the Confidential Information be kept secret and Palermo agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to Palermo's own advantage or the advantage of others either during employment or at any time thereafter.\n2.03 Additional Obligations. Palermo agrees that the obligations under this Article are in addition to, and not in limitation or preemption of, all other\nobligations of confidentiality which Palermo may have to BSD&T under its Code of Conduct or general or specific legal or equitable principles.\n2.04 Return of BSD&T Property.. Palermo agrees that upon the termination of employment, for any reason or no reason, or at any other time BSD&T\nmay request, that Palermo will immediately return to BSD&T all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning BSD&T or\nacquired by the Palermo in the course and scope of employment (excluding only those documents relating solely to Palermo's own salary and\nbenefits).\nARTICLE 3: NONSOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Nonsolicitation of Clients or Customers. Palermo covenants and agrees that during employment and that upon the termination his employment,\nfor any reason or no reason, including but not limited to resignation of employment, that for a period of twelve (12) months following the\ntermination of his employment ("Restricted Period"), Palermo, whether directly or indirectly, in any capacity whatsoever (whether as proprietor,\npartner, investor, shareholder, director, officer, employer, consultant, independent contractor, co-venturer, financier, agent, representative or\notherwise) shall not:\n2\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of the BSD&T, except as an employee of\nBSD&T or the parents, affiliates or related entity of BSD&T; provided that this Article 3 does not prohibit Palermo from being employed by or\naffiliated or associated with any person or entity after termination his employment with BSD&T so long as he does not have any involvement\non behalf of any person or entity with respect to soliciting, managing, administering, supporting or retaining the Relevant Financial Services\nbusiness provided or proposed to be provided to a Customer or Client of BSD&T; and/or\n(b) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer or\nClient of BSD&T for any other person or entity, divert, entice, or otherwise take away from BSD&T the business or patronage of any\nCustomer or Client of BSD&T, or attempt to do so, or solicit or induce any Customer or Client of BSD&T to terminate or reduce its\nrelationship with BSD&T.\n3.02 Nonsolicitation of Employees. Palermo covenants and agrees that during employment with BSD&T and during the Restricted Period that\nPalermo shall not, directly or indirectly, hire, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another person\nor enterprise in recruiting, soliciting or inducing) any employee of BSD&T to leave BSD&T or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. Palermo acknowledges and agrees that the Restricted Period is reasonable and valid in duration and scope\nand in all other respects. Palermo also represents that Palermo's experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent Palermo from earning a livelihood, and acknowledge that it would cause BSD&T serious and irreparable injury and cost\nif Palermo were to use Palermo's ability and knowledge in competition with BSD&T or to otherwise breach the obligations contained in this\nAgreement.\n3.04 Extension of Restricted Period. Palermo agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the length\nof time during which Palermo shall have been in breach of any of the provisions.\n3.05 Definitions. Palermo understands that for the purposes of this Agreement:\n(a) "Relevant Financial Services" trust and custody and related services, such as securities lending, investment accounting, pension\nmanagement, trade processing, performance measurement and investment analysis services, investment-related foreign exchange, risk management\nand fiduciary monitoring for pension funds i.e. defined benefit/defined contribution markets, foundations, investment managers and insurance\ncompanies provided in sub-custodian relationships with banks and joint relationships provided by BSD&T from time to time or investment\nmanagement services which at any time during the twelve (12) months preceding the termination of Palermo's employment are or were within the\nscope of his responsibilities.\n(b) Palermo understands that for the purposes of this Agreement, "Customer" or "Client" of BSD&T means any person or entity who (i) is\nreceiving Relevant Financial Services from BSD&T on the date of termination of his employment with BSD&T or its parent, subsidiary, affiliate\nor\nrelated entity (ii) received such services for compensation at any time during the 1 year period\n3\nimmediately preceding the date of termination of his employment, or (iii) Palermo solicited, directly or indirectly, in whole or in part, on behalf of\nBSD&T to provide financial services within one (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty. of Loyalty. to BSD&T. Palermo agrees that at all times during employment by BSD&T, Palermo owes BSD&T a duty of loyalty and a\nduty to act in good faith. Palermo agrees that during employment Palermo will not individually, or in combination with any other Palermo or\ncompetitor of BSD&T, violate or breach the terms of this agreement, Code of Conduct or Mellon Securities Trading Policy.\n4.02 Cooperation. Palermo agrees that upon the termination of employment of Palermo, for any reason or no reason, including but not limited\nto\nresignation of employment, that Palermo will cooperate with BSD&T, upon reasonable notice and at reasonable times, in the prosecution and\ndefense of complaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions now in existence or that may be\nthreatened or brought in the future relating to events or occurrences that transpired while employed by BSD&T.\n4.03 Prior Employer Restrictions. Palermo warrants that Palermo is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict Palermo from performing Palermo's employment duties or working with or on behalf of any customer or client. In addition,\nPalermo warrants that his employment with BSD&T does not violate any agreement, understanding or undertaking. Still further, Palermo agrees that\nPalermo will not in the course of performing duties for BSD&T violate any confidentiality obligations Palermo may owe to others.\n4.04 Disclosure of Agreement. Palermo acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to (a) any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5; SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nPalermo acknowledges and agrees that in performing the job duties of his position that Palermo provides BSD&T with a special, unique and\nextraordinary service.\nARTICLE 6; WORKS FOR HIRE.\n6.01 Property of BSD&T. Palermo understands and agrees that any and all rights or interests that Palermo holds or obtains in any designs,\ntrade secrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, patent rights,\ntrademarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, or otherwise obtained by Palermo during\nemployment with BSD&T which relate to or arise out of such employment with BSD&T are expressly regarded as property of BSD&T or "works\nfor hire" (the "Inventions").\n6.02 Disclosure;Assignment. Palermo agrees to promptly disclose to BSD&T any and all such Inventions and deliver to BSD&T, upon its\nrequest, a written description of such Invention and\n4\nany available documentary or other materials evidencing such Invention. Palermo hereby assigns to BSD&T the sole and exclusive right to such\nInventions, and that, upon request of BSD&T, will execute and deliver any and all documents or instruments and take any other action which\nBSD&T shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and patent protection with respect\nto, or to otherwise protect BSD&T' trade secrets and proprietary interest in, such Inventions.\n6.03 Survival. These obligations shall continue beyond the termination of Palermo's employment, regardless of reason, with respect to such\nInventions conceived of, reduced to practice, or developed by Palermo during the term of employment with BSD&T.\n6.04 Fees. BSD&T agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by Palermo for any\nassistance rendered to BSD&T pursuant to this Article 6 and to promptly reimburse Palermo for all expenses incurred by Palermo in perfecting its\nproperty rights in the Inventions. Palermo's obligations to assign Inventions shall not apply to any invention about which Palermo can prove that: (i)\nthe invention was developed entirely on Palermo own time and effort, (ii) no equipment, supplies, facilities, resources, trade secrets or confidential\ninformation of BSD&T was used in the development of the invention; (iii) the invention does not relate to the business of BSD&T or to BSD&T'\nactual or anticipated research and development; and (iv) the invention does not result from any work otherwise performed by Palermo for BSD&T.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. Palermo agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to BSD&T and that money damages would not provide an adequate remedy for BSD&T to protect and\npreserve the status quo. Therefore, PALERMO CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\na)\nthat Palermo immediately return to BSD&T all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that Palermo be enjoined and restrained from using or disclosing any information\ncontained in such records; and\nb)\nthat, for a period of twelve (12) months, Palermo be enjoined and restrained from soliciting any client or customer whom Palermo served\nor whose name became known to Palermo while employed by BSD&T, in any office and in any capacity; and\nc)\nthat for a period of twelve (12) months, Palermo be enjoined and restrained from hiring, soliciting, or inducing any employee of BSD&T\nto leave BSD&T.\n7.02 Palermo agrees that BSD&T shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief,\nto\na\nparty\nenforcing\nany\nsuch\ncovenant\neach\nof\nsuch\nrights\nand\nremedies\nto\nbe\nindependent\nof\nthe\nother\nand\nseverally\nenforceable\nincluding,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nBSD&T all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n5\n7.03 Jurisdiction. For purposes of Article 7.01, Palermo agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court which has original jurisdiction for judicial district or county in which Palermo last worked for BSD&T. In addition, this Agreement\nshall be construed, governed by, and enforced in accordance with the laws of said jurisdiction.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. PALERMO AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. BSD&T MAY TERMINATE PALERMO'S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST AS\nPALERMO MAY RESIGN AT ANY TIME.\nARTICLE 9: ASSIGNMENT\nPalermo expressly acknowledges and agrees that BSD&T may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of BSD&T or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of BSD&T, in either case without Palermo's consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term "BSD&T" shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of Palermo's employment by BSD&T.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability.. Palermo agrees that the covenants set forth herein are reasonable and valid in duration and scope and in all other\nrespects. If any court or tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants\nshall not thereby be affected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or\nany part of the covenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court\nor tribunal is directed to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then\nbe\nenforceable. If any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be\ndeemed amended to delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid\nand enforceable.\n10.02 Additional Obligations. Palermo agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements he has with BSD&T may have to BSD&T or under its Code of Conduct or general or specific legal or equitable\nprinciples.\n10.03 Time to Consider Agreement. PALERMO ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK BSD&T\nQUESTIONS ABOUT IT. PALERMO ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH AN\nATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, PALERMO EXPRESSLY\nACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND FREELY AGREES\nTO ABIDE BY THEM.\n6\n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Massachusetts, and shall in all\nrespects be interpreted, enforced and governed under the laws of said State.\n10.05 Survival. Palermo acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nBSD&T's interest in its Confidentia Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. Palermo acknowledges and agree that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of Palermo's employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n/s/ James P. Palermo\n2/7/03\nDate\nJames P. Palermo\nCorrected 3/17/03\nBoston Safe Deposit and Trust Company\nBy: /s/ Linda B. Kane\n2/19/03\nDate\nLinda B. Kane\nCorrected 3/17/03\nSeniorVicePresident, Human Resources\n7	EX-10.1 3 dex101.htm CONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nExhibit 10.1\nCONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NONSOLICITATION AGREEMENT, (“Agreement”) made as of the 21st\nday of January, 2003, by and between\nBoston Safe Deposit &Trust Company, and on behalf of Mellon Bank, N.A, their parent companies, subsidiaries, affiliates, related entities,\nsuccessors and assigns (collectively “BSD&T”) and James P. Palermo (hereinafter “Palermo”) in consideration of employment by BSD&T and as a\ncondition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby acknowledged, agree as\nfollows:\nARTICLE 1: CONSIDERATION\nIn exchange for Palermo’s execution of this Agreement within thirty (30) days of his receipt of the Agreement and as a condition precedent, BSD&T\nagrees to provide Palermo with a stock option award of 20,000 shares of Mellon Financial Corporation (“MFC”) Type I options (“Award”) upon\napproval of the Award by MFC Human Resources Committee at its January 21, 2003 meeting and his execution of the individualized stock option\nagreement. The Award is subject to the terms and conditions set forth in the MFC Long Term Profit Incentive Plan (1996), which is incorporated by\nreference.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. Palermo recognizes, acknowledges and agrees that:\n(a) In the course of Palermo’s employment by BSD&T and as a Vice Chair of MFC Palermo has had and it will be necessary for Palermo to be\ngiven or have access to and become informed of confidential or proprietary information which BSD&T possesses or to which BSD&T has\nrights, which relates to BSD&T and which is not generally known to the public or in the trade and is a competitive asset of BSD&T, or\ninformation which constitutes a “trade secret” of BSD&T, as that term is defined by the Uniform Trade Secrets Act, as amended and approved\nby the National Conference of Commissioners on Uniform State Laws in 1985, including without limitation, (i) BSD&T’s planning data,\nrecords, observations and marketing strategies or techniques, computer programs, system documentation, manuals, formulae, processes,\noperation methods, machines, compositions; (ii) non-public terms of any new products, data bases, and investment strategies of BSD&T,\ntrading, arbitrage and/or hedging techniques or strategies,; (iii) non-public information relating to BSD&T personnel matters; (iv) BSD&T’s\nfinancial results and information about its business condition; (v) non-public terms of any investment, management or advisory agreement or\nother material contract of BSD&T; (vi) BSD&T’s proprietary software and related documents; (vii) BSD&T’s customer and client and\nprospecting lists, identifying information and contact persons at such customers and clients and prospects; and (viii) non-public material\ninformation concerning BSD&T’s clients or customers or their operations, condition (financial or otherwise) or plans whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form (collectively referred to herein as the “Confidential Information”);\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nPalermo, information rightfully known to Palermo without limitation on disclosure prior to its receipt from BSD&T or a customer of\nBSD&T, information rightfully received from a third party without limitation on disclosure and information generally made available by\nBSD&T or a client or customer of BSD&T to third parties without restriction on disclosure; or information required to be disclosed by law,\nrule, regulation or order without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under\nthis clause Palermo shall, if permissible under the law, rule or regulation, provide the Company with notice and the opportunity to contest such\ndisclosure.\n(c) The Confidential Information has been developed or acquired by BSD&T with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and exclusive property of BSD&T (and\nin some cases the property of a customer of BSD&T). BSD&T takes all reasonable measures to maintain its confidentiality and to guard its\nsecrecy. The Confidential Information is not generally known outside BSD&T and within BSD&T this information is confidential and used\nonly on a “need to know” basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. Palermo agrees\nthat the Confidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.01 Use of Confidential Information. Palermo agrees that the use, except for the sole purpose of conducting business on behalf of BSD&T or with\nprior written consent of BSD&T, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to BSD&T.\n2.02 Nondisclosure of Confidential Information. Palermo agrees that it is essential to the protection of BSD&T’s goodwill and to the maintenance of\nBSD&T’s competitive position that the Confidential Information be kept secret and Palermo agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to Palermo’s own advantage or the advantage of others either during employment or at any time thereafter.\n2.03 Additional Obligations. Palermo agrees that the obligations under this Article are in addition to, and not in limitation or preemption of, all other\nobligations of confidentiality which Palermo may have to BSD&T under its Code of Conduct or general or specific legal or equitable principles.\n2.04 Return of BSD&T Property. Palermo agrees that upon the termination of employment, for any reason or no reason, or at any other time BSD&T\nmay request, that Palermo will immediately return to BSD&T all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning BSD&T or\nacquired by the Palermo in the course and scope of employment (excluding only those documents relating solely to Palermo’s own salary and\nbenefits).\nARTICLE 3: NONSOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Nonsolicitation of Clients or Customers. Palermo covenants and agrees that during employment and that upon the termination his employment,\nfor any reason or no reason, including but not limited to resignation of employment, that for a period of twelve (12) months following the\ntermination of his employment (“Restricted Period”), Palermo, whether directly or indirectly, in any capacity whatsoever (whether as proprietor,\npartner, investor, shareholder, director, officer, employer, consultant, independent contractor, co-venturer, financier, agent, representative or\notherwise) shall not:\n2\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of the BSD&T, except as an employee of\nBSD&T or the parents, affiliates or related entity of BSD&T; provided that this Article 3 does not prohibit Palermo from being employed by or\naffiliated or associated with any person or entity after termination his employment with BSD&T so long as he does not have any involvement\non behalf of any person or entity with respect to soliciting, managing, administering, supporting or retaining the Relevant Financial Services\nbusiness provided or proposed to be provided to a Customer or Client of BSD&T; and/or\n(b) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer or\nClient of BSD&T for any other person or entity, divert, entice, or otherwise take away from BSD&T the business or patronage of any\nCustomer or Client of BSD&T, or attempt to do so, or solicit or induce any Customer or Client of BSD&T to terminate or reduce its\nrelationship with BSD&T.\n3.02 Nonsolicitation of Employees. Palermo covenants and agrees that during employment with BSD&T and during the Restricted Period that\nPalermo shall not, directly or indirectly, hire, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another person\nor enterprise in recruiting, soliciting or inducing) any employee of BSD&T to leave BSD&T or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. Palermo acknowledges and agrees that the Restricted Period is reasonable and valid in duration and scope\nand in all other respects. Palermo also represents that Palermo’s experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent Palermo from earning a livelihood, and acknowledge that it would cause BSD&T serious and irreparable injury and cost\nif Palermo were to use Palermo’s ability and knowledge in competition with BSD&T or to otherwise breach the obligations contained in this\nAgreement.\n3.04 Extension of Restricted Period. Palermo agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the length\nof time during which Palermo shall have been in breach of any of the provisions.\n3.05 Definitions. Palermo understands that for the purposes of this Agreement:\n(a) “Relevant Financial Services” trust and custody and related services, such as securities lending, investment accounting, pension\nmanagement, trade processing, performance measurement and investment analysis services, investment-related foreign exchange, risk management\nand fiduciary monitoring for pension funds i.e. defined benefit/defined contribution markets, foundations, investment managers and insurance\ncompanies provided in sub-custodian relationships with banks and joint relationships provided by BSD&T from time to time or investment\nmanagement services which at any time during the twelve (12) months preceding the termination of Palermo’s employment are or were within the\nscope of his responsibilities.\n(b) Palermo understands that for the purposes of this Agreement, “Customer” or “Client” of BSD&T means any person or entity who (i) is\nreceiving Relevant Financial Services from BSD&T on the date of termination of his employment with BSD&T or its parent, subsidiary, affiliate or\nrelated entity (ii) received such services for compensation at any time during the 1 year period\n3\nimmediately preceding the date of termination of his employment, or (iii) Palermo solicited, directly or indirectly, in whole or in part, on behalf of\nBSD&T to provide financial services within one (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty of Loyalty to BSD&T. Palermo agrees that at all times during employment by BSD&T, Palermo owes BSD&T a duty of loyalty and a\nduty to act in good faith. Palermo agrees that during employment Palermo will not individually, or in combination with any other Palermo or\ncompetitor of BSD&T, violate or breach the terms of this agreement, Code of Conduct or Mellon Securities Trading Policy.\n4.02 Cooperation. Palermo agrees that upon the termination of employment of Palermo, for any reason or no reason, including but not limited to\nresignation of employment, that Palermo will cooperate with BSD&T, upon reasonable notice and at reasonable times, in the prosecution and\ndefense of complaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions now in existence or that may be\nthreatened or brought in the future relating to events or occurrences that transpired while employed by BSD&T.\n4.03 Prior Employer Restrictions. Palermo warrants that Palermo is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict Palermo from performing Palermo’s employment duties or working with or on behalf of any customer or client. In addition,\nPalermo warrants that his employment with BSD&T does not violate any agreement, understanding or undertaking. Still further, Palermo agrees that\nPalermo will not in the course of performing duties for BSD&T violate any confidentiality obligations Palermo may owe to others.\n4.04 Disclosure of Agreement. Palermo acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to (a) any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5; SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nPalermo acknowledges and agrees that in performing the job duties of his position that Palermo provides BSD&T with a special, unique and\nextraordinary service.\nARTICLE 6; WORKS FOR HIRE.\n6.01 Property of BSD&T. Palermo understands and agrees that any and all rights or interests that Palermo holds or obtains in any designs,\ntrade secrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, patent rights,\ntrademarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, or otherwise obtained by Palermo during\nemployment with BSD&T which relate to or arise out of such employment with BSD&T are expressly regarded as property of BSD&T or “works\nfor hire” (the “Inventions”).\n6.02 Disclosure;Assignment. Palermo agrees to promptly disclose to BSD&T any and all such Inventions and deliver to BSD&T, upon its\nrequest, a written description of such Invention and\n4\nany available documentary or other materials evidencing such Invention. Palermo hereby assigns to BSD&T the sole and exclusive right to such\nInventions, and that, upon request of BSD&T, will execute and deliver any and all documents or instruments and take any other action which\nBSD&T shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and patent protection with respect\nto, or to otherwise protect BSD&T’ trade secrets and proprietary interest in, such Inventions.\n6.03 Survival. These obligations shall continue beyond the termination of Palermo’s employment, regardless of reason, with respect to such\nInventions conceived of, reduced to practice, or developed by Palermo during the term of employment with BSD&T.\n6.04 Fees. BSD&T agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by Palermo for any\nassistance rendered to BSD&T pursuant to this Article 6 and to promptly reimburse Palermo for all expenses incurred by Palermo in perfecting its\nproperty rights in the Inventions. Palermo’s obligations to assign Inventions shall not apply to any invention about which Palermo can prove that: (i)\nthe invention was developed entirely on Palermo own time and effort, (ii) no equipment, supplies, facilities, resources, trade secrets or confidential\ninformation of BSD&T was used in the development of the invention; (iii) the invention does not relate to the business of BSD&T or to BSD&T’\nactual or anticipated research and development; and (iv) the invention does not result from any work otherwise performed by Palermo for BSD&T.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. Palermo agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to BSD&T and that money damages would not provide an adequate remedy for BSD&T to protect and\npreserve the status quo. Therefore, PALERMO CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\na) that Palermo immediately return to BSD&T all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that Palermo be enjoined and restrained from using or disclosing any information\ncontained in such records; and\nb) that, for a period of twelve (12) months, Palermo be enjoined and restrained from soliciting any client or customer whom Palermo served\nor whose name became known to Palermo while employed by BSD&T, in any office and in any capacity; and\nc) that for a period of twelve (12) months, Palermo be enjoined and restrained from hiring, soliciting, or inducing any employee of BSD&T\nto leave BSD&T.\n7.02 Palermo agrees that BSD&T shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nBSD&T all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n5\n7.03 Jurisdiction. For purposes of Article 7.01, Palermo agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court which has original jurisdiction for judicial district or county in which Palermo last worked for BSD&T. In addition, this Agreement\nshall be construed, governed by, and enforced in accordance with the laws of said jurisdiction.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. PALERMO AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. BSD&T MAY TERMINATE PALERMO’S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST AS\nPALERMO MAY RESIGN AT ANY TIME.\nARTICLE 9: ASSIGNMENT\nPalermo expressly acknowledges and agrees that BSD&T may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of BSD&T or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of BSD&T, in either case without Palermo’s consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term “BSD&T” shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of Palermo’s employment by BSD&T.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability. Palermo agrees that the covenants set forth herein are reasonable and valid in duration and scope and in all other\nrespects. If any court or tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants\nshall not thereby be affected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or\nany part of the covenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court\nor tribunal is directed to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be\nenforceable. If any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be\ndeemed amended to delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid\nand enforceable.\n10.02 Additional Obligations. Palermo agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements he has with BSD&T may have to BSD&T or under its Code of Conduct or general or specific legal or equitable\nprinciples.\n10.03 Time to Consider Agreement. PALERMO ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK BSD&T\nQUESTIONS ABOUT IT. PALERMO ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH AN\nATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, PALERMO EXPRESSLY\nACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND FREELY AGREES\nTO ABIDE BY THEM.\n6\n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Massachusetts, and shall in all\nrespects be interpreted, enforced and governed under the laws of said State.\n10.05 Survival. Palermo acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nBSD&T’s interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. Palermo acknowledges and agree that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of Palermo’s employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n2/7/03\n/s/ James P. Palermo\nDate\nJames P. Palermo\nCorrected 3/17/03\nBoston Safe Deposit and Trust Company\n2/19/03\nBy: /s/ Linda B. Kane\nDate\nLinda B. Kane\nCorrected 3/17/03\nSeniorVicePresident, Human Resources\n7
6ef3c1b23f4cc41fb6eb045cc9c21a1a.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 3 g11116exv99wxeyx2y.htm EX-99.(E)(2) CONFIDENTIALITY AGREEMENT\nExhibit 99(e)(2)\nOctober 12, 2007\nReckitt Benckiser plc\n103-105 Bath Road\nSlough\nBerks\nSL1 3UH\nAttn: Andrew Baldry\nCorporate Development Director\nCONFIDENTIALITY AGREEMENT\nDear Sir or Madam:\nIn connection with your possible interest in a potential business combination (the “Transaction”) involving Adams\nRespiratory Therapeutics, Inc. (the “Company”), you have requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to the Company or the Transaction. All such information (whether oral or\ncontained on written or other tangible or electronic medium) furnished (whether before or after the date hereof) by us or our\ndirectors, officers, employees, affiliates, representatives (including, without limitation, financial advisors, attorneys and\naccountants) or agents (collectively, “our Representatives”) to you or your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys and accountants) or agents or your potential\nsources of financing for the Transaction (collectively, “your Representatives”) and all analyses, compilations, forecasts,\nstudies or other documents prepared by you or your Representatives in connection with your or their review of, or your\ninterest in, the Transaction which contain or reflect any such information is hereinafter referred to as the “Information”. The\nterm Information will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by you or your Representatives or (ii) is or becomes available to you on a nonconfidential basis from a source\n(other than us or our Representatives) which, to the best of your knowledge after due inquiry, is not prohibited from disclosing\nsuch information to you by a legal, contractual or fiduciary obligation to us.\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by legal\nprocess, and only after compliance with paragraph 3 below), without our prior written consent, disclose any Information\nin any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that you may reveal the Information to your Representatives (a) who need to know the Information for the\npurpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the Information and\n(c) who agree to act in accordance with the terms of this letter agreement. You will cause your Representatives to observe\nthe terms of this letter agreement, and you will be responsible for any breach of this letter agreement by any of your\nRepresentatives.\n2. You and your Representatives will not (except as required by legal process, and only after compliance with\nparagraph 3 below), without our prior written consent, disclose to any person the fact that the Information exists or has\nbeen made available, that you are considering the Transaction or any other transaction involving the Company, or that\ndiscussions or negotiations are taking or have taken place concerning the Transaction or involving the Company or any\nterm, condition or other fact relating to the Transaction or such discussions or negotiations, including, without limitation,\nthe status thereof.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law,\nregulation or legal process to disclose any of the Information, you will notify us promptly so that we may seek a\nprotective order or other appropriate remedy or, in our sole discretion, waive compliance with the terms of this letter\nagreement. In the event that no such protective order or other remedy is obtained, or that the Company does not waive\ncompliance with the terms of this letter agreement, you will furnish only that portion of the Information which you are\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform our Representative, Morgan\nStanley & Co. Incorporated (“Morgan Stanley”), of that decision and, in that case, and at any time\nupon the request of the Company or any of our Representatives, you will either (i) promptly destroy all Information on\nany tangible or electronic medium in your or your Representatives’ possession and confirm such destruction to us in\nwriting, or (ii) promptly deliver to the Company at your own expense all tangible media containing Information in your\nor your Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter\nagreement.\n5. You acknowledge that neither we, nor Morgan Stanley or its affiliates, nor our other Representatives, nor any of\nour or their respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of\nthe Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the\naccuracy or completeness of the Information, and you agree that no such person will have any liability relating to the\nInformation or for any errors therein or omissions therefrom. You further agree that you are not entitled to rely on the\naccuracy or completeness of the Information and that you will be entitled to rely solely on such representations and\nwarranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You are aware, and you will advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities\nby any person who has received material, non-public information from the issuer of such securities and on the\ncommunication of such information to any other person when it is reasonably foreseeable that such other person is likely\nto purchase or sell such securities in reliance upon such information.\n7. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your\naffiliates will, without the prior written consent of the Company or its Board of Directors: (i) acquire, offer to acquire, or\nagree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the Company or any subsidiary thereof, or of any successor to or person in control of the\nCompany, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling\nperson; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity with\nrespect to the voting of, any voting securities of the Company; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or its\nsecurities or assets; (iv) form, join or in any way participate in a “group” (as defined in Section 13 (d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or (v) request the Company or any of our\nRepresentatives, directly or indirectly, to amend or waive any provision of this paragraph. You will promptly advise the\nCompany of any inquiry or proposal made to you with respect to any of the foregoing.\n8. You agree that, for a period of two years from the date of this letter agreement, you will not, directly or indirectly,\nsolicit for employment or hire any employee of the Company or any of its subsidiaries with whom you have had contact\nor who became known to you in connection with your consideration of the Transaction; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from you.\n9. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility\ntours or management meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction,\nwill be first submitted or directed to Morgan Stanley and not to the Company. You acknowledge and agree that (a) we\nand our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective\nbuyer and entering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we\nreserve the right, in our sole discretion, to change the procedures relating to our consideration of the Transaction at any\ntime without prior notice to you or any other person, to reject any and all proposals made by you or any of your\nRepresentatives with regard to the Transaction, and to terminate discussions and negotiations with you at any time and\nfor any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed,\nneither we\nnor any of our Representatives will have any liability to you with respect to the Transaction, whether by virtue of this\nletter agreement, any other written or oral expression with respect to the Transaction or otherwise.\n10. You acknowledge that remedies at law may be inadequate to protect us against any actual or threatened breach\nof this letter agreement by you or by your Representatives, and, without prejudice to any other rights and remedies\notherwise available to us, you agree to the granting of injunctive relief in our favor without proof of actual damages. In\nthe event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this letter agreement has been breached by you or by your Representatives, then you will\nreimburse the Company for its costs and expenses (including, without limitation, legal fees and expenses) incurred in\nconnection with all such litigation.\n11. You agree that no failure or delay by us in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder.\n12. This letter agreement will be governed by and construed in accordance with the laws of the State of New York\napplicable to contracts between residents of that State and executed in and to be performed in that State.\n13. You hereby (a) submit to the jurisdiction of any New York State and Federal courts sitting in New York City\nwith respect to all actions and proceedings arising out of or relating to this letter agreement, (b) agree that all claims with\nrespect to any such action or proceeding may be heard and determined in such New York State or Federal court,\n(c) waive the defense of an inconvenient forum, (d) agree that a final judgment in any such action or proceeding shall be\nconclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the\nInformation, and no modifications of this letter agreement or waiver of the terms and conditions hereof will be binding\nupon you or us, unless approved in writing by each of you and us.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this\nletter enclosed herewith.\nVery truly yours,\nADAMS RESPIRATORY THERAPEUTICS, INC.\nBy: /s/ Walter E. Riehemann\nName: Walter E. Riehemann\nTitle: EVP and General Counsel\nAccepted and Agreed as of the date first written above:\nRECKITT BENCKISER PLC\nBy: /s/ Andrew Baldry\nName: Andrew Baldry\nTitle: Corporate Development Director\nDate: 15 October 2007	EX-99.(E)(2) 3 g11116exv99wxeyx2y.htm EX-99.(E)(2) CONFIDENTIALITY AGREEMENT\nExhibit 99(e)(2)\nOctober 12, 2007\nReckitt Benckiser plc\n103-105 Bath Road\nSlough\nBerks\nSL1 3UH\nAttn: Andrew Baldry\nCorporate Development Director\nCONFIDENTIALITY AGREEMENT\nDear Sir or Madam:\nIn connection with your possible interest in a potential business combination (the “Transaction”) involving Adams\nRespiratory Therapeutics, Inc. (the “Company”), you have requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to the Company or the Transaction. All such information (whether oral or\ncontained on written or other tangible or electronic medium) furnished (whether before or after the date hereof) by us or our\ndirectors, officers, employees, affiliates, representatives (including, without limitation, financial advisors, attorneys and\naccountants) or agents (collectively, “our Representatives”) to you or your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys and accountants) or agents or your potential\nsources of financing for the Transaction (collectively, “your Representatives™) and all analyses, compilations, forecasts,\nstudies or other documents prepared by you or your Representatives in connection with your or their review of, or your\ninterest in, the Transaction which contain or reflect any such information is hereinafter referred to as the “Information”. The\nterm Information will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by you or your Representatives or (ii) is or becomes available to you on a nonconfidential basis from a source\n(other than us or our Representatives) which, to the best of your knowledge after due inquiry, is not prohibited from disclosing\nsuch information to you by a legal, contractual or fiduciary obligation to us.\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by legal\nprocess, and only after compliance with paragraph 3 below), without our prior written consent, disclose any Information\nin any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that you may reveal the Information to your Representatives (a) who need to know the Information for the\npurpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the Information and\n(c) who agree to act in accordance with the terms of this letter agreement. You will cause your Representatives to observe\nthe terms of this letter agreement, and you will be responsible for any breach of this letter agreement by any of your\nRepresentatives.\n2. You and your Representatives will not (except as required by legal process, and only after compliance with\nparagraph 3 below), without our prior written consent, disclose to any person the fact that the Information exists or has\nbeen made available, that you are considering the Transaction or any other transaction involving the Company, or that\ndiscussions or negotiations are taking or have taken place concerning the Transaction or involving the Company or any\nterm, condition or other fact relating to the Transaction or such discussions or negotiations, including, without limitation,\nthe status thereof.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law,\nregulation or legal process to disclose any of the Information, you will notify us promptly so that we may seek a\nprotective order or other appropriate remedy or, in our sole discretion, waive compliance with the terms of this letter\nagreement. In the event that no such protective order or other remedy is obtained, or that the Company does not waive\ncompliance with the terms of this letter agreement, you will furnish only that portion of the Information which you are\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform our Representative, Morgan\nStanley & Co. Incorporated (“Morgan Stanley”), of that decision and, in that case, and at any time\nupon the request of the Company or any of our Representatives, you will either (i) promptly destroy all Information on\nany tangible or electronic medium in your or your Representatives’ possession and confirm such destruction to us in\nwriting, or (ii) promptly deliver to the Company at your own expense all tangible media containing Information in your\nor your Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter\nagreement.\n5. You acknowledge that neither we, nor Morgan Stanley or its affiliates, nor our other Representatives, nor any of\nour or their respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of\nthe Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the\naccuracy or completeness of the Information, and you agree that no such person will have any liability relating to the\nInformation or for any errors therein or omissions therefrom. You further agree that you are not entitled to rely on the\naccuracy or completeness of the Information and that you will be entitled to rely solely on such representations and\nwarranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You are aware, and you will advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities\nby any person who has received material, non-public information from the issuer of such securities and on the\ncommunication of such information to any other person when it is reasonably foreseeable that such other person is likely\nto purchase or sell such securities in reliance upon such information.\n7. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your\naffiliates will, without the prior written consent of the Company or its Board of Directors: (i) acquire, offer to acquire, or\nagree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the Company or any subsidiary thereof, or of any successor to or person in control of the\nCompany, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling\nperson; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity with\nrespect to the voting of, any voting securities of the Company; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or its\nsecurities or assets; (iv) form, join or in any way participate in a “group” (as defined in Section 13 (d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or (v) request the Company or any of our\nRepresentatives, directly or indirectly, to amend or waive any provision of this paragraph. You will promptly advise the\nCompany of any inquiry or proposal made to you with respect to any of the foregoing.\n8. You agree that, for a period of two years from the date of this letter agreement, you will not, directly or indirectly,\nsolicit for employment or hire any employee of the Company or any of its subsidiaries with whom you have had contact\nor who became known to you in connection with your consideration of the Transaction; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from you.\n9. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility\ntours or management meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction,\nwill be first submitted or directed to Morgan Stanley and not to the Company. You acknowledge and agree that (a) we\nand our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective\nbuyer and entering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we\nreserve the right, in our sole discretion, to change the procedures relating to our consideration of the Transaction at any\ntime without prior notice to you or any other person, to reject any and all proposals made by you or any of your\nRepresentatives with regard to the Transaction, and to terminate discussions and negotiations with you at any time and\nfor any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed,\nneither we\nnor any of our Representatives will have any liability to you with respect to the Transaction, whether by virtue of this\nletter agreement, any other written or oral expression with respect to the Transaction or otherwise.\n10. You acknowledge that remedies at law may be inadequate to protect us against any actual or threatened breach\nof this letter agreement by you or by your Representatives, and, without prejudice to any other rights and remedies\notherwise available to us, you agree to the granting of injunctive relief in our favor without proof of actual damages. In\nthe event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this letter agreement has been breached by you or by your Representatives, then you will\nreimburse the Company for its costs and expenses (including, without limitation, legal fees and expenses) incurred in\nconnection with all such litigation.\n11. You agree that no failure or delay by us in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder.\n12. This letter agreement will be governed by and construed in accordance with the laws of the State of New York\napplicable to contracts between residents of that State and executed in and to be performed in that State.\n13. You hereby (a) submit to the jurisdiction of any New York State and Federal courts sitting in New York City\nwith respect to all actions and proceedings arising out of or relating to this letter agreement, (b) agree that all claims with\nrespect to any such action or proceeding may be heard and determined in such New York State or Federal court,\n(c) waive the defense of an inconvenient forum, (d) agree that a final judgment in any such action or proceeding shall be\nconclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the\nInformation, and no modifications of this letter agreement or waiver of the terms and conditions hereof will be binding\nupon you or us, unless approved in writing by each of you and us.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this\nletter enclosed herewith.\nVery truly yours,\nADAMS RESPIRATORY THERAPEUTICS, INC.\nBy: /s/ Walter E. Riehemann\nName: Walter E. Riehemann\nTitle: EVP and General Counsel\nAccepted and Agreed as of the date first written above:\nRECKITT BENCKISER PLC\nBy: /s/ Andrew Baldry\nName: Andrew Baldry\nTitle: Corporate Development Director\nDate: 15 October 2007	EX-99.(E)(2) 3 g11116exv99wxeyx2y.htm EX-99.(E)(2 CONFIDENTIALITY AGREEMENT\nExhibit 99(e)(2)\nOctober 12, 2007\nReckitt Benckiser plc\n103-105 Bath Road\nSlough\nBerks\nSL1 3UH\nAttn: Andrew Baldry\nCorporate Development Director\nCONFIDENTIALITY AGREEMENT\nDear Sir or Madam:\nIn connection with your possible interest in a potential business combination (the "Transaction") involving Adams\nRespiratory Therapeutics, Inc. (the "Company"), you have requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to the Company or the Transaction. All such information (whether oral or\ncontained on written or other tangible or electronic medium) furnished (whether before or after the date hereof) by us or our\ndirectors, officers, employees, affiliates, representatives (including, without limitation, financial advisors, attorneys and\naccountants) or agents (collectively, "our Representatives") to you or your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys and accountants) or agents or your potential\nsources of financing for the Transaction (collectively, "your Representatives") and all analyses, compilations, forecasts,\nstudies or other documents prepared by you or your Representatives in connection with your or their review of, or your\ninterest in, the Transaction which contain or reflect any such information is hereinafter referred to as the "Information". The\nterm Information will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by you or your Representatives or (ii) is or becomes available to you on a nonconfidential basis from a source\n(other than us or our Representatives) which, to the best of your knowledge after due inquiry, is not prohibited from disclosing\nsuch information to you by a legal, contractual or fiduciary obligation to us.\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by legal\nprocess, and only after compliance with paragraph 3 below), without our prior written consent, disclose any Information\nin any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that you may reveal the Information to your Representatives (a) who need to know the Information for the\npurpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the Information and\n(c) who agree to act in accordance with the terms of this letter agreement. You will cause your Representatives to observe\nthe terms of this letter agreement, and you will be responsible for any breach of this letter agreement by any of your\nRepresentatives.\n2. You and your Representatives will not (except as required by legal process, and only after compliance with\nparagraph 3 below), without our prior written consent, disclose to any person the fact that the Information exists or has\nbeen made available, that you are considering the Transaction or any other transaction involving the Company, or that\ndiscussions or negotiations are taking or have taken place concerning the Transaction or involving the Company or any\nterm, condition or other fact relating to the Transaction or such discussions or negotiations, including, without limitation,\nthe status thereof.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law,\nregulation or legal process to disclose any of the Information, you will notify us promptly so that we may seek a\nprotective order or other appropriate remedy or, in our sole discretion, waive compliance with the terms of this letter\nagreement. In the event that no such protective order or other remedy is obtained, or that the Company does not waive\ncompliance with the terms of this letter agreement, you will furnish only that portion of the Information which you are\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform our Representative, Morgan\nStanley & Co. Incorporated ("Morgan Stanley"), of that decision and, in that case, and at any time\nupon the request of the Company or any of our Representatives, you will either (i) promptly destroy all Information on\nany tangible or electronic medium in your or your Representatives' possession and confirm such destruction to us in\nwriting, or (ii) promptly deliver to the Company at your own expense all tangible media containing Information in your\nor your Representatives' possession. Any oral Information will continue to be subject to the terms of this letter\nagreement.\n5. You acknowledge that neither we, nor Morgan Stanley or its affiliates, nor our other Representatives, nor any of\nour or their respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of\nthe Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the\naccuracy or completeness of the Information, and you agree that no such person will have any liability relating to the\nInformation or for any errors therein or omissions therefrom. You further agree that you are not entitled to rely on the\naccuracy or completeness of the Information and that you will be entitled to rely solely on such representations and\nwarranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You are aware, and you will advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities\nby any person who has received material, non-public information from the issuer of such securities and on the\ncommunication of such information to any other person when it is reasonably foreseeable that such other person is likely\nto purchase or sell such securities in reliance upon such information.\n7. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your\naffiliates will, without the prior written consent of the Company or its Board of Directors: (i) acquire, offer to acquire, or\nagree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the Company or any subsidiary thereof, or of any successor to or person in control of the\nCompany, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling\nperson; (ii) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are\nused in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity with\nrespect to the voting of, any voting securities of the Company; (iii) make any public announcement with respect to, or\nsubmit a proposa for, or offer of (with or without conditions) any extraordinary transaction involving the Company or its\nsecurities or assets; (iv) form, join or in any way participate in a "group" (as defined in Section 13 (d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or (v) request the Company or any of our\nRepresentatives, directly or indirectly, to amend or waive any provision of this paragraph. You will promptly advise the\nCompany of any inquiry or proposal made to you with respect to any of the foregoing.\n8. You agree that, for a period of two years from the date of this letter agreement, you will not, directly or indirectly,\nsolicit for employment or hire any employee of the Company or any of its subsidiaries with whom you have had contact\nor who became known to you in connection with your consideration of the Transaction; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from you.\n9. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility\ntours or management meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction,\nwill be first submitted or directed to Morgan Stanley and not to the Company. You acknowledge and agree that (a) we\nand our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective\nbuyer and entering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we\nreserve the right, in our sole discretion, to change the procedures relating to our consideration of the Transaction at any\ntime without prior notice to you or any other person, to reject any and all proposals made by you or any of your\nRepresentatives with regard to the Transaction, and to terminate discussions and negotiations with you at any time and\nfor any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed,\nneither we\nnor any of our Representatives will have any liability to you with respect to the Transaction, whether by virtue of this\nletter agreement, any other written or oral expression with respect to the Transaction or otherwise.\n10. You acknowledge that remedies at law may be inadequate to protect us against any actual or threatened breach\nof this letter agreement by you or by your Representatives, and, without prejudice to any other rights and remedies\notherwise available to us, you agree to the granting of injunctive relief in our favor without proof of actual damages. In\nthe event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this letter agreement has been breached by you or by your Representatives, then you will\nreimburse the Company for its costs and expenses (including, without limitation, legal fees and expenses) incurred in\nconnection with all such litigation.\n11. You agree that no failure or delay by us in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder.\n12. This letter agreement will be governed by and construed in accordance with the laws of the State of New York\napplicable to contracts between residents of that State and executed in and to be performed in that State.\n13. You hereby (a) submit to the jurisdiction of any New York State and Federal courts sitting in New York City\nwith respect to all actions and proceedings arising out of or relating to this letter agreement, (b) agree that all claims with\nrespect to any such action or proceeding may be heard and determined in such New York State or Federal court,\n(c) waive the defense of an inconvenient forum, (d) agree that a final judgment in any such action or proceeding shall be\nconclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the\nInformation, and no modifications of this letter agreement or waiver of the terms and conditions hereof will be binding\nupon you or us, unless approved in writing by each of you and us.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this\nletter enclosed herewith.\nVery truly yours,\nADAMS RESPIRATORY THERAPEUTICS, INC.\nBy: /s/ Walter E. Riehemann\nName: Walter E. Riehemann\nTitle: EVP and General Counsel\nAccepted and Agreed as of the date first written above:\nRECKITT BENCKISER PLC\nBy: /s/ Andrew Baldry\nName: Andrew Baldry\nTitle: Corporate Development Director\nDate: 15 October 2007	EX-99.(E)(2) 3 g11116exv99wxeyx2y.htm EX-99.(E)(2) CONFIDENTIALITY AGREEMENT\nExhibit 99(e)(2)\nOctober 12, 2007\nReckitt Benckiser plc\n103-105 Bath Road\nSlough\nBerks\nSL1 3UH\nAttn: Andrew Baldry\nCorporate Development Director\nCONFIDENTIALITY AGREEMENT\nDear Sir or Madam:\nIn connection with your possible interest in a potential business combination (the “Transaction”) involving Adams\nRespiratory Therapeutics, Inc. (the “Company”), you have requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to the Company or the Transaction. All such information (whether oral or\ncontained on written or other tangible or electronic medium) furnished (whether before or after the date hereof) by us or our\ndirectors, officers, employees, affiliates, representatives (including, without limitation, financial advisors, attorneys and\naccountants) or agents (collectively, “our Representatives”) to you or your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys and accountants) or agents or your potential\nsources of financing for the Transaction (collectively, “your Representatives”) and all analyses, compilations, forecasts,\nstudies or other documents prepared by you or your Representatives in connection with your or their review of, or your\ninterest in, the Transaction which contain or reflect any such information is hereinafter referred to as the “Information”. The\nterm Information will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by you or your Representatives or (ii) is or becomes available to you on a nonconfidential basis from a source\n(other than us or our Representatives) which, to the best of your knowledge after due inquiry, is not prohibited from disclosing\nsuch information to you by a legal, contractual or fiduciary obligation to us.\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by legal\nprocess, and only after compliance with paragraph 3 below), without our prior written consent, disclose any Information\nin any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that you may reveal the Information to your Representatives (a) who need to know the Information for the\npurpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the Information and\n(c) who agree to act in accordance with the terms of this letter agreement. You will cause your Representatives to observe\nthe terms of this letter agreement, and you will be responsible for any breach of this letter agreement by any of your\nRepresentatives.\n2. You and your Representatives will not (except as required by legal process, and only after compliance with\nparagraph 3 below), without our prior written consent, disclose to any person the fact that the Information exists or has\nbeen made available, that you are considering the Transaction or any other transaction involving the Company, or that\ndiscussions or negotiations are taking or have taken place concerning the Transaction or involving the Company or any\nterm, condition or other fact relating to the Transaction or such discussions or negotiations, including, without limitation,\nthe status thereof.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law,\nregulation or legal process to disclose any of the Information, you will notify us promptly so that we may seek a\nprotective order or other appropriate remedy or, in our sole discretion, waive compliance with the terms of this letter\nagreement. In the event that no such protective order or other remedy is obtained, or that the Company does not waive\ncompliance with the terms of this letter agreement, you will furnish only that portion of the Information which you are\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform our Representative, Morgan\nStanley & Co. Incorporated (“Morgan Stanley”), of that decision and, in that case, and at any time\nupon the request of the Company or any of our Representatives, you will either (i) promptly destroy all Information on\nany tangible or electronic medium in your or your Representatives’ possession and confirm such destruction to us in\nwriting, or (ii) promptly deliver to the Company at your own expense all tangible media containing Information in your\nor your Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter\nagreement.\n5. You acknowledge that neither we, nor Morgan Stanley or its affiliates, nor our other Representatives, nor any of\nour or their respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of\nthe Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the\naccuracy or completeness of the Information, and you agree that no such person will have any liability relating to the\nInformation or for any errors therein or omissions therefrom. You further agree that you are not entitled to rely on the\naccuracy or completeness of the Information and that you will be entitled to rely solely on such representations and\nwarranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You are aware, and you will advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities\nby any person who has received material, non-public information from the issuer of such securities and on the\ncommunication of such information to any other person when it is reasonably foreseeable that such other person is likely\nto purchase or sell such securities in reliance upon such information.\n7. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your\naffiliates will, without the prior written consent of the Company or its Board of Directors: (i) acquire, offer to acquire, or\nagree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the Company or any subsidiary thereof, or of any successor to or person in control of the\nCompany, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling\nperson; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity with\nrespect to the voting of, any voting securities of the Company; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or its\nsecurities or assets; (iv) form, join or in any way participate in a “group” (as defined in Section 13 (d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or (v) request the Company or any of our\nRepresentatives, directly or indirectly, to amend or waive any provision of this paragraph. You will promptly advise the\nCompany of any inquiry or proposal made to you with respect to any of the foregoing.\n8. You agree that, for a period of two years from the date of this letter agreement, you will not, directly or indirectly,\nsolicit for employment or hire any employee of the Company or any of its subsidiaries with whom you have had contact\nor who became known to you in connection with your consideration of the Transaction; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from you.\n9. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility\ntours or management meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction,\nwill be first submitted or directed to Morgan Stanley and not to the Company. You acknowledge and agree that (a) we\nand our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective\nbuyer and entering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we\nreserve the right, in our sole discretion, to change the procedures relating to our consideration of the Transaction at any\ntime without prior notice to you or any other person, to reject any and all proposals made by you or any of your\nRepresentatives with regard to the Transaction, and to terminate discussions and negotiations with you at any time and\nfor any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed,\nneither we\nnor any of our Representatives will have any liability to you with respect to the Transaction, whether by virtue of this\nletter agreement, any other written or oral expression with respect to the Transaction or otherwise.\n10. You acknowledge that remedies at law may be inadequate to protect us against any actual or threatened breach\nof this letter agreement by you or by your Representatives, and, without prejudice to any other rights and remedies\notherwise available to us, you agree to the granting of injunctive relief in our favor without proof of actual damages. In\nthe event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this letter agreement has been breached by you or by your Representatives, then you will\nreimburse the Company for its costs and expenses (including, without limitation, legal fees and expenses) incurred in\nconnection with all such litigation.\n11. You agree that no failure or delay by us in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder.\n12. This letter agreement will be governed by and construed in accordance with the laws of the State of New York\napplicable to contracts between residents of that State and executed in and to be performed in that State.\n13. You hereby (a) submit to the jurisdiction of any New York State and Federal courts sitting in New York City\nwith respect to all actions and proceedings arising out of or relating to this letter agreement, (b) agree that all claims with\nrespect to any such action or proceeding may be heard and determined in such New York State or Federal court,\n(c) waive the defense of an inconvenient forum, (d) agree that a final judgment in any such action or proceeding shall be\nconclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the\nInformation, and no modifications of this letter agreement or waiver of the terms and conditions hereof will be binding\nupon you or us, unless approved in writing by each of you and us.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this\nletter enclosed herewith.\nVery truly yours,\nADAMS RESPIRATORY THERAPEUTICS, INC.\nBy: /s/ Walter E. Riehemann\nName: Walter E. Riehemann\nTitle: EVP and General Counsel\nAccepted and Agreed as of the date first written above:\nRECKITT BENCKISER PLC\nBy: /s/ Andrew Baldry\nName: Andrew Baldry\nTitle: Corporate Development Director\nDate: 15 October 2007
6f4d9016a432cc2465d798c71d5d2e4f.pdf	effective_date jurisdiction party term	EX-10.3 6 exhibit10c.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made as of the ___ day of\n_ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ , 2005, by and between ENERGIZER HOLDINGS, INC., (hereinafter referred to as “ENERGIZER” and as defined in\nParagraph 11) and J. PATRICK MULCAHY (hereinafter referred to as “MR. MULCAHY”).\nWHEREAS, MR. MULCAHY is an employee of ENERGIZER in a key leadership and strategic position;\nWHEREAS, ENERGIZER and MR. MULCAHY acknowledge that, in MR. MULCAHY’s capacity as an employee of ENERGIZER,\nMR. MULCAHY did contribute to and/or receive Confidential Information, and MR. MULCAHY acknowledges that ENERGIZER will suffer\nirreparable harm if MR. MULCAHY, after having developed and/or created and/or becoming familiar with any such Confidential Information,\nmakes any unauthorized disclosure or communication of such Confidential Information to any third party or makes any use of such\nConfidential Information wrongfully or in competition with ENERGIZER;\nWHEREAS, MR. MULCAHY has indicated his interest in retiring; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to engage (either directly or indirectly) in\ncompetition with, or to solicit any client or account of, ENERGIZER; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to disclose certain information relating to\nENERGIZER’s business; and\nWHEREAS, ENERGIZER and MR. MULCAHY desire to confirm the terms and conditions of their agreements and understandings.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, and the parties hereto agree as follows:\n1. Covenants Not to Compete or Disclose. MR. MULCAHY acknowledges that the services rendered to ENERGIZER in the\naforesaid capacity are of a special character which have a unique value to ENERGIZER, the loss of which cannot be adequately\ncompensated by damages in an action of law. MR. MULCAHY agrees that by virtue of his employment, he has gained a special and unique\nunderstanding of ENERGIZER’s business in the formulation, processing, manufacturing, sale, and marketing of ENERGIZER’s battery and\nbattery related products and ENERGIZER’s wet-shave products, as well as other products formulated, processed, manufactured, sold, or\nmarketed by ENERGIZER during the tenure of MR. MULCAHY’s employment. MR . MULCAHY at all times recognizes and respects the\nadvantageous business relationship which exists between ENERGIZER and present and potential customers who have been made aware\nof the products and services of ENERGIZER. MR. MULCAHY makes the covenants contained in this Agreement in view of (i) the unique\nvalue of the services of MR. MULCAHY for which ENERGIZER has employed MR. MULCAHY; (ii) the Confidential Information obtained by\nor disclosed to MR. MULCAHY as an employee of ENERGIZER; and (iii) ENERGIZER’s agreement to provide MR. MULCAHY with\nconsideration as provided herein.\n2.\nNon-Competition.\na.\nMR. MULCAHY agrees that for a period of five (5) years after termination of MR. MULCAHY’s employment\n--\ni.e ., from January 25, 2005 through January 25, 2010 -- (“the Non-Compete Period”), MR. MULCAHY will not compete\nagainst ENERGIZER in ENERGIZER business.\nb.\nFor purposes of this Agreement, “ENERGIZER business” shall mean any of the following business\nactivities: all aspects of manufacturing, marketing, distributing, consulting with regard to, and/or operating a facility for the\nmanufacturing, processing, marketing, or distribution of batteries, lighting products, rechargeable batteries, related battery and\nlighting products, and wet-shave products. “ENERGIZER business” includes products and/or methods that presently are used,\nwere used, or are under development or consideration, whether or not completed, for use by ENERGIZER as of the date MR.\nMULCAHY’s employment terminates.\nc.\nFor purposes of this Agreement, to “compete” means to accept or begin employment with, advise, finance,\nown (partially or in whole), consult with, or accept an assignment through an employer with any third party world wide in a\nposition involving or relating to ENERGIZER business.\nd.\nThis Agreement does not preclude MR. MULCAHY from buying or selling shares of stock in any company\nthat is publicly listed and traded in any stock exchange or over-the-counter market. Provided, however, that MR. MULCAHY\nmay not use Confidential Information to engage in, or induce others to engage in, insider trading as prohibited by federal and\nstate securities laws.\nMR. MULCAHY acknowledges and agrees that the foregoing restrictions are reasonable and necessary for the protection of the\ngoodwill and business of ENERGIZER and are enforceable in view of, among other things; (i) the narrow range of activities\nprohibited, (ii) the national and international markets in which ENERGIZER operates, (iii) the Confidential Information to which MR.\nMULCAHY had access during his employment, and (iv) MR. MULCAHY’s background and qualifications are such that the restrictions\nwill not impose an undue hardship on MR. MULCAHY nor unreasonably interfere with MR. MULCAHY’s ability to earn a livelihood.\nThe parties hereby acknowledge that the nature of the business conducted by ENERGIZER and the position of ENERGIZER in the\nbattery and wet-shave industry mandate the foregoing non-competition restriction for a substantial duration in order to protect and\npreserve the competitive advantage and goodwill of ENERGIZER.\n3.\nNon-Solicitation.\nFor the duration of the Non-Compete Period, MR. MULCAHY shall not (i)\ninduce or attempt to induce any employee of ENERGIZER to leave the employ of ENERGIZER or in any way interfere with the\nrelationship between ENERGIZER and its employees or (ii) induce or attempt to induce any customer, supplier, distributor, broker, or\nother business relation of ENERGIZER to cease doing business with ENERGIZER, or in any way interfere with the relationship\nbetween any customer, supplier, distributor, broker or other business relation and ENERGIZER.\n4.\nConfidentiality of Information.\nMR. MULCAHY acknowledges that the information, observations and data relating to the formulation, processing,\nmanufacturing, sale and marketing of ENERGIZER's batteries, battery related products, and wet-shave products obtained by MR.\nMULCAHY during the course of MR. MULCAHY’s employment with ENERGIZER (the "Confidential Information") are confidential and the\nexclusive property of ENERGIZER. MR . MULCAHY agrees that he will not disclose to any unauthorized persons or use for MR.\nMULCAHY’s own account or for the benefit of any third party (other than ENERGIZER) any of such Confidential Information without\nENERGIZER’s prior written consent, unless and to the extent that such Confidential Information becomes generally known to, and available\nfor use by, the public other than as a result of MR. MULCAHY’s acts or failure to act.\nFor purposes of this Agreement, “Confidential Information” means all information with respect to the conduct or details of the\nbusiness and operations of ENERGIZER, including but not limited to current and planned information systems; the names, addresses or\nparticular desires or needs of its customers; the bounds of its markets; the prices charged for its services or products; its market share;\nmarketing strategies and promotional efforts in any market; product development, manufacturing processes, and research and development\nprojects; formulas, inventions and compilations of information, records or specifications; future product or market developments, financial\ninformation, information regarding suppliers, and costs of raw materials and other supplies; financing programs, overhead distribution and\nother expenses; conversion costs; contemplated, pending, or completed acquisitions; or personnel. MR. MULCAHY understands and\nagrees that such “Confidential Information” is important, material and confidential, and that disclosure would gravely affect the successful\nconduct of ENERGIZER’s businesses. The obligation to protect Confidential Information is on-going and does not expire upon the\ntermination of the parties’ contractual relationship.\n5.\nSpecific Performance. MR. MULCAHY acknowledges that irreparable injury will be caused to ENERGIZER by\nany breach or threatened breach of any of the provisions of paragraphs 2 through 4 and MR. MULCAHY therefore agrees that, in the event\nof any breach or threatened breach, ENERGIZER, in addition to all of the rights and remedies at law or in equity as may exist in its favor,\nshall have the right, in a court of law or equity having jurisdiction, to enforce the specific performance of the foregoing provisions. In the\nevent of an action in a court of law or equity to enforce any provision of this Agreement, MR. MULCAHY shall be responsible for all\nexpenses incurred by ENERGIZER in connection therewith, including, but not limited to, ENERGIZER’s reasonable attorney’s fees and\ncosts.\n6.\nReasonableness of Restrictions. MR . MULCAHY has carefully read and considered the provisions of paragraphs\n2, 3, and 4 hereof, and having done so, agrees that the restrictions set forth in such paragraphs (including, but not limited to, the time period\nof the restriction set forth in paragraph 2 hereof) are fair and reasonable and required for the protection of the interests of ENERGIZER, its\nofficers, directors, and other employees.\n7.\nWaiver. The failure by ENERGIZER to enforce at any time any of the provisions hereof or to require at any time\nperformance by MR. MULCAHY of any provisions hereof, shall in no way be construed to be a release of MR. MULCAHY or waiver of such\nprovisions or to affect the validity of this Agreement or any part hereof, or the right of ENERGIZER thereafter to enforce every such\nprovision in accordance with the terms of this Agreement.\n8.\nSavings and Severability Clause.\n(a) Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law or to be\ncontrary to law, and whenever there is any conflict between any provision of this Agreement and any present or future statute, law,\ngovernment regulation or ordinance contrary to which the parties have no legal right to contract, the latter shall prevail, but in such event the\nprovisions of this Agreement affected shall be curtailed and restricted only to the extent necessary to bring them within legal requirements.\n(b)\nIf any provision of the covenants and agreements hereof above shall be held invalid or unenforceable\nbecause of the scope of the territory or the actions thereby restricted, or the period of time within which such covenant or agreement is\noperative, or for any other reason, it is the intent of the parties hereto that such provision shall be construed by limiting and reducing it, or, if\nnecessary eliminating it so that the provisions hereof shall be valid and enforceable to the extent compatible with applicable law as\ndetermined by a court of competent jurisdiction.\n9.\nBurden and Benefit. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and\ntheir legal representatives, successors, and permitted assigns.\n10.\nGoverning Law. All questions pertaining to the validity, construction, execution, and performance of this\nAgreement shall be construed in accordance with, and be governed by, the laws of the State of Missouri, without giving effect to the choice\nof law principles thereof.\n11.\nEnergizer Defined. For purposes of this Agreement, the term “ENERGIZER” as used herein shall include\nEnergizer Holdings, Inc.,\nEveready Battery Company, Inc.,\nSchick Manufacturing, Inc.,\nall subsidiary and affiliated companies,\npredecessors, and successors of the aforementioned, and all officers, directors, agents, and employees of any of the aforementioned.\n12.\nRestricted Stock Equivalent Award\n(a) Grant. In exchange for signing this Agreement, MR. MULCAHY will receive a grant of 10,000 restricted common stock\nequivalents (“Equivalents”) effective as of his termination date. This grant shall be pursuant to, and subject to the terms of, the Energizer\nHoldings, Inc. 2000 Incentive Stock Plan (“the Plan”).\n(b) Vesting and Payment. All restricted stock granted pursuant to this Agreement will vest January 25, 2010. At such time, each\nvested Equivalent will convert into one share of ENERGIZER’s $.01 par value Common Stock, which will be issued to MR. MULCAHY.\n(c) Dividends. At the time of payment of shares of Common Stock to MR. MULCAHY, as described in (b) above, MR. MULCAHY will\nalso receive an additional cash payment equal to the amount of dividends, if any, which would have been paid on the shares of Common\nStock issued to him if MR. MULCAHY had actually acquired those shares on the date of crediting of his Equivalents. No interest shall be\nincluded in the calculation of such additional cash payment.\n(d) Forfeiture. All unvested unrestricted stock equivalents credited to MR. MULCAHY will be forfeited upon a determination by the\nBoard of Directors of Energizer Holdings, Inc. that MR. MULCAHY has violated any provision of paragraph 2, 3, or 4 hereof.\n(e) Acceleration. Notwithstanding anything in (b) above, all Equivalents credited to MR. MULCAHY will immediately vest, convert to\nshares of Common Stock, and be paid to MR. MULCAHY, his designated beneficiary, or his legal representative, in accordance with the\nterms of the Plan, in the event of:\n(i)\nMR. MULCAHY’s death;\n(ii)\na declaration of MR. MULCAHY’s total and permanent disability; or\n(iii)\na Change of Control of ENERGIZER, which for purposes of this Agreement shall be deemed to occur\nwhen (a) a person, as defined under the U.S. securities laws, acquires beneficial ownership of more than fifty percent (50%) of the\noutstanding voting securities of ENERGIZER; or (b) the directors of ENERGIZER immediately before a business combination between\nENERGIZER and another entity, or a proxy contest for the election of directors, shall, as a result thereof, cease to constitute a majority of\nthe Board of Directors of Energizer Holdings, Inc. or any successor corporation. Notwithstanding the foregoing, however, a Change of\nControl which is approved in advance by a majority of the Board of Directors of Energizer Holdings, Inc. shall not trigger acceleration as\ndescribed in this paragraph 12(e)(iii).\n13.\nNotices. Any notices necessary or required to be given under this Agreement shall be sufficiently given if in\nwriting, and personally delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, to the last known\naddresses of the parties hereto, or to such other address or addresses as any of the parties shall have specified in writing to the other party\nhereto.\n14.\nConsent to Advise Third Parties. MR . MULCAHY agrees ENERGIZER may advise any third party that\nENERGIZER deems necessary of the existence of this Agreement and of its terms. MR. MULCAHY agrees that ENERGIZER shall have no\nliability for so notifying any third party and hereby irrevocably waives any right to assert any such liability in the future.\n15.\nEntire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the\nmatters contained herein, and no modification, amendment, or waiver of any of the provision of this Agreement shall be effective unless in\nwriting and signed by all parties hereto. This Agreement constitutes the only agreement between the parties hereto with respect to the\nmatters herein contained.\n16.\nModifications. No change or modification of this Agreement shall be valid unless the same is in writing and\nsigned by all the parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the party against\nwhom it is sought to be enforced.\n17.\nEffect of MR. MULCAHY’s Signature. By the signing of this Agreement, MR. MULCAHY signifies that MR.\nMULCAHY has fully read, completely understands, and voluntarily agrees with this Agreement consisting of six (6) pages and seventeen\n(17) paragraphs and knowingly and voluntarily accepts all of its terms and conditions.\nIN WITNESS WHEREOF, ENERGIZER and MR. MULCAHY have duly executed this Agreement as of the date first above written.\nENERGIZER HOLINGS, INC.\nJ. PATRICK\nMULCAHY\nBy:\n___________________________\n___________________________\nPeter J. Conrad\nVice President\nHuman Resources\nDate:___________________________\nDate:______________________\nWitness:____________________\nDate:______________________	EX-10.3 6 exhibit10c.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made as of the __ day of\n, 2005, by and between ENERGIZER HOLDINGS, INC., (hereinafter referred to as “ENERGIZER” and as defined in\nParagraph 11) and J. PATRICK MULCAHY (hereinafter referred to as “MR. MULCAHY").\nWHEREAS, MR. MULCAHY is an employee of ENERGIZER in a key leadership and strategic position;\nWHEREAS, ENERGIZER and MR. MULCAHY acknowledge that, in MR. MULCAHY’s capacity as an employee of ENERGIZER,\nMR. MULCAHY did contribute to and/or receive Confidential Information, and MR. MULCAHY acknowledges that ENERGIZER will suffer\nirreparable harm if MR. MULCARY, after having developed and/or created and/or becoming familiar with any such Confidential Information,\nmakes any unauthorized disclosure or communication of such Confidential Information to any third party or makes any use of such\nConfidential Information wrongfully or in competition with ENERGIZER,;\nWHEREAS, MR. MULCAHY has indicated his interest in retiring; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to engage (either directly or indirectly) in\ncompetition with, or to solicit any client or account of, ENERGIZER; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to disclose certain information relating to\nENERGIZER'’s business; and\nWHEREAS, ENERGIZER and MR. MULCAHY desire to confirm the terms and conditions of their agreements and understandings.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, and the parties hereto agree as follows:\n1. Covenants Not to Compete or Disclose. MR. MULCAHY acknowledges that the services rendered to ENERGIZER in the\naforesaid capacity are of a special character which have a unique value to ENERGIZER, the loss of which cannot be adequately\ncompensated by damages in an action of law. MR. MULCAHY agrees that by virtue of his employment, he has gained a special and unique\nunderstanding of ENERGIZER’s business in the formulation, processing, manufacturing, sale, and marketing of ENERGIZER'’s battery and\nbattery related products and ENERGIZER’s wet-shave products, as well as other products formulated, processed, manufactured, sold, or\nmarketed by ENERGIZER during the tenure of MR. MULCAHY’s employment. MR. MULCAHY at all times recognizes and respects the\nadvantageous business relationship which exists between ENERGIZER and present and potential customers who have been made aware\nof the products and services of ENERGIZER. MR. MULCAHY makes the covenants contained in this Agreement in view of (i) the unique\nvalue of the services of MR. MULCAHY for which ENERGIZER has employed MR. MULCAHY; (ii) the Confidential Information obtained by\nor disclosed to MR. MULCAHY as an employee of ENERGIZER; and (iii) ENERGIZER’s agreement to provide MR. MULCAHY with\nconsideration as provided herein.\n2. Non-Competition.\na. MR. MULCAHY agrees that for a period of five (5) years after termination of MR. MULCAHY’s employment\n-- i.e., from January 25, 2005 through January 25, 2010 -- (“the Non-Compete Period”), MR. MULCAHY will not compete\nagainst ENERGIZER in ENERGIZER business.\nb. For purposes of this Agreement, “ENERGIZER business” shall mean any of the following business\nactivities: all aspects of manufacturing, marketing, distributing, consulting with regard to, and/or operating a facility for the\nmanufacturing, processing, marketing, or distribution of batteries, lighting products, rechargeable batteries, related battery and\nlighting products, and wet-shave products. “ENERGIZER business” includes products and/or methods that presently are used,\nwere used, or are under development or consideration, whether or not completed, for use by ENERGIZER as of the date MR.\nMULCAHY’s employment terminates.\nC. For purposes of this Agreement, to “compete” means to accept or begin employment with, advise, finance,\nown (partially or in whole), consult with, or accept an assignment through an employer with any third party world wide in a\nposition involving or relating to ENERGIZER business.\nd. This Agreement does not preclude MR. MULCAHY from buying or selling shares of stock in any company\nthat is publicly listed and traded in any stock exchange or over-the-counter market. Provided, however, that MR. MULCAHY\nmay not use Confidential Information to engage in, or induce others to engage in, insider trading as prohibited by federal and\nstate securities laws.\nMR. MULCAHY acknowledges and agrees that the foregoing restrictions are reasonable and necessary for the protection of the\ngoodwill and business of ENERGIZER and are enforceable in view of, among other things; (i) the narrow range of activities\nprohibited, (ii) the national and international markets in which ENERGIZER operates, (iii) the Confidential Information to which MR.\nMULCAHY had access during his employment, and (iv) MR. MULCAHY’s background and qualifications are such that the restrictions\nwill not impose an undue hardship on MR. MULCAHY nor unreasonably interfere with MR. MULCAHY’s ability to earn a livelihood.\nThe parties hereby acknowledge that the nature of the business conducted by ENERGIZER and the position of ENERGIZER in the\nbattery and wet-shave industry mandate the foregoing non-competition restriction for a substantial duration in order to protect and\npreserve the competitive advantage and goodwill of ENERGIZER.\n3. Non-Solicitation. For the duration of the Non-Compete Period, MR. MULCAHY shall not (i)\ninduce or attempt to induce any employee of ENERGIZER to leave the employ of ENERGIZER or in any way interfere with the\nrelationship between ENERGIZER and its employees or (ii) induce or attempt to induce any customer, supplier, distributor, broker, or\nother business relation of ENERGIZER to cease doing business with ENERGIZER, or in any way interfere with the relationship\nbetween any customer, supplier, distributor, broker or other business relation and ENERGIZER.\n4, Confidentiality of Information.\nMR. MULCAHY acknowledges that the information, observations and data relating to the formulation, processing,\nmanufacturing, sale and marketing of ENERGIZER's batteries, battery related products, and wet-shave products obtained by MR.\nMULCAHY during the course of MR. MULCAHY’s employment with ENERGIZER (the "Confidential Information") are confidential and the\nexclusive property of ENERGIZER. MR. MULCAHY agrees that he will not disclose to any unauthorized persons or use for MR.\nMULCAHY’s own account or for the benefit of any third party (other than ENERGIZER) any of such Confidential Information without\nENERGIZER’s prior written consent, unless and to the extent that such Confidential Information becomes generally known to, and available\nfor use by, the public other than as a result of MR. MULCAHY’s acts or failure to act.\nFor purposes of this Agreement, “Confidential Information” means all information with respect to the conduct or details of the\nbusiness and operations of ENERGIZER, including but not limited to current and planned information systems; the names, addresses or\nparticular desires or needs of its customers; the bounds of its markets; the prices charged for its services or products; its market share;\nmarketing strategies and promotional efforts in any market; product development, manufacturing processes, and research and development\nprojects; formulas, inventions and compilations of information, records or specifications; future product or market developments, financial\ninformation, information regarding suppliers, and costs of raw materials and other supplies; financing programs, overhead distribution and\nother expenses; conversion costs; contemplated, pending, or completed acquisitions; or personnel. MR. MULCAHY understands and\nagrees that such “Confidential Information” is important, material and confidential, and that disclosure would gravely affect the successful\nconduct of ENERGIZER’s businesses. The obligation to protect Confidential Information is on-going and does not expire upon the\ntermination of the parties’ contractual relationship.\n5. Specific Performance. MR. MULCAHY acknowledges that irreparable injury will be caused to ENERGIZER by\nany breach or threatened breach of any of the provisions of paragraphs 2 through 4 and MR. MULCAHY therefore agrees that, in the event\nof any breach or threatened breach, ENERGIZER, in addition to all of the rights and remedies at law or in equity as may exist in its favor,\nshall have the right, in a court of law or equity having jurisdiction, to enforce the specific performance of the foregoing provisions. In the\nevent of an action in a court of law or equity to enforce any provision of this Agreement, MR. MULCAHY shall be responsible for all\nexpenses incurred by ENERGIZER in connection therewith, including, but not limited to, ENERGIZER's reasonable attorney’s fees and\ncosts.\n6. Reasonableness of Restrictions. MR. MULCAHY has carefully read and considered the provisions of paragraphs\n2, 3, and 4 hereof, and having done so, agrees that the restrictions set forth in such paragraphs (including, but not limited to, the time period\nof the restriction set forth in paragraph 2 hereof) are fair and reasonable and required for the protection of the interests of ENERGIZER, its\nofficers, directors, and other employees.\n7. Waiver. The failure by ENERGIZER to enforce at any time any of the provisions hereof or to require at any time\nperformance by MR. MULCAHY of any provisions hereof, shall in no way be construed to be a release of MR. MULCAHY or waiver of such\nprovisions or to affect the validity of this Agreement or any part hereof, or the right of ENERGIZER thereafter to enforce every such\nprovision in accordance with the terms of this Agreement.\n8. Savings and Severability Clause.\n(a) Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law or to be\ncontrary to law, and whenever there is any conflict between any provision of this Agreement and any present or future statute, law,\ngovernment regulation or ordinance contrary to which the parties have no legal right to contract, the latter shall prevail, but in such event the\nprovisions of this Agreement affected shall be curtailed and restricted only to the extent necessary to bring them within legal requirements.\n(b) If any provision of the covenants and agreements hereof above shall be held invalid or unenforceable\nbecause of the scope of the territory or the actions thereby restricted, or the period of time within which such covenant or agreement is\noperative, or for any other reason, it is the intent of the parties hereto that such provision shall be construed by limiting and reducing it, or, if\nnecessary eliminating it so that the provisions hereof shall be valid and enforceable to the extent compatible with applicable law as\ndetermined by a court of competent jurisdiction.\n9. Burden and Benefit. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and\ntheir legal representatives, successors, and permitted assigns.\n10. Governing Law. All questions pertaining to the validity, construction, execution, and performance of this\nAgreement shall be construed in accordance with, and be governed by, the laws of the State of Missouri, without giving effect to the choice\nof law principles thereof.\n11. Energizer Defined. For purposes of this Agreement, the term “ENERGIZER” as used herein shall include\nEnergizer Holdings, Inc., Eveready Battery Company, Inc., Schick Manufacturing, Inc., all subsidiary and affiliated companies,\npredecessors, and successors of the aforementioned, and all officers, directors, agents, and employees of any of the aforementioned.\n12. Restricted Stock Equivalent Award\n(@) Grant. In exchange for signing this Agreement, MR. MULCAHY will receive a grant of 10,000 restricted common stock\nequivalents (“Equivalents”) effective as of his termination date. This grant shall be pursuant to, and subject to the terms of, the Energizer\nHoldings, Inc. 2000 Incentive Stock Plan (“the Plan”).\n(b) Vesting and Payment. All restricted stock granted pursuant to this Agreement will vest January 25, 2010. At such time, each\nvested Equivalent will convert into one share of ENERGIZER’s $.01 par value Common Stock, which will be issued to MR. MULCAHY.\n(c) Dividends. At the time of payment of shares of Common Stock to MR. MULCAHY, as described in (b) above, MR. MULCAHY will\nalso receive an additional cash payment equal to the amount of dividends, if any, which would have been paid on the shares of Common\nStock issued to him if MR. MULCAHY had actually acquired those shares on the date of crediting of his Equivalents. No interest shall be\nincluded in the calculation of such additional cash payment.\n(d) Forfeiture. All unvested unrestricted stock equivalents credited to MR. MULCAHY will be forfeited upon a determination by the\nBoard of Directors of Energizer Holdings, Inc. that MR. MULCAHY has violated any provision of paragraph 2, 3, or 4 hereof.\n(e) Acceleration. Notwithstanding anything in (b) above, all Equivalents credited to MR. MULCAHY will immediately vest, convert to\nshares of Common Stock, and be paid to MR. MULCAHY, his designated beneficiary, or his legal representative, in accordance with the\nterms of the Plan, in the event of:\n® MR. MULCAHY’s death;\n(ii) a declaration of MR. MULCAHY's total and permanent disability; or\n(iii) a Change of Control of ENERGIZER, which for purposes of this Agreement shall be deemed to occur\nwhen (a) a person, as defined under the U.S. securities laws, acquires beneficial ownership of more than fifty percent (50%) of the\noutstanding voting securities of ENERGIZER; or (b) the directors of ENERGIZER immediately before a business combination between\nENERGIZER and another entity, or a proxy contest for the election of directors, shall, as a result thereof, cease to constitute a majority of\nthe Board of Directors of Energizer Holdings, Inc. or any successor corporation. Notwithstanding the foregoing, however, a Change of\nControl which is approved in advance by a majority of the Board of Directors of Energizer Holdings, Inc. shall not trigger acceleration as\ndescribed in this paragraph 12(e)(iii).\n13. Notices. Any notices necessary or required to be given under this Agreement shall be sufficiently given if in\nwriting, and personally delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, to the last known\naddresses of the parties hereto, or to such other address or addresses as any of the parties shall have specified in writing to the other party\nhereto.\n14. Consent to Advise Third Parties. MR. MULCAHY agrees ENERGIZER may advise any third party that\nENERGIZER deems necessary of the existence of this Agreement and of its terms. MR. MULCAHY agrees that ENERGIZER shall have no\nliability for so notifying any third party and hereby irrevocably waives any right to assert any such liability in the future.\n15. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the\nmatters contained herein, and no modification, amendment, or waiver of any of the provision of this Agreement shall be effective unless in\nwriting and signed by all parties hereto. This Agreement constitutes the only agreement between the parties hereto with respect to the\nmatters herein contained.\n16. Modifications. No change or modification of this Agreement shall be valid unless the same is in writing and\nsigned by all the parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the party against\nwhom it is sought to be enforced.\n17. Effect of MR. MULCAHY'’s Signature. By the signing of this Agreement, MR. MULCAHY signifies that MR.\nMULCAHY has fully read, completely understands, and voluntarily agrees with this Agreement consisting of six (6) pages and seventeen\n(17) paragraphs and knowingly and voluntarily accepts all of its terms and conditions.\nIN WITNESS WHEREOF, ENERGIZER and MR. MULCAHY have duly executed this Agreement as of the date first above written.\nENERGIZER HOLINGS, INC. J. PATRICK\nMULCAHY\nBy:\nPeter J. Conrad\nVice President\nHuman Resources\nDate: Date:\nWitness:\nDate:	EX-10.3 6 exhibit10c.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT ("Agreement") is made as of the\nday of\n2005, by and between ENERGIZER HOLDINGS, INC., (hereinafter referred to as "ENERGIZER" and as defined in\nParagraph 11) and J. PATRICK MULCAHY (hereinafter referred to as "MR. MULCAHY").\nWHEREAS, MR. MULCAHY is an employee of ENERGIZER in a key leadership and strategic position;\nWHEREAS, ENERGIZER and MR. MULCAHY acknowledge that, in MR. MULCAHY'S capacity as an employee of ENERGIZER,\nMR. MULCAHY did contribute to and/or receive Confidential Information, and MR. MULCAHY acknowledges that ENERGIZER will suffer\nirreparable harm if MR. MULCAHY, after having developed and/or created and/or becoming familiar with any such Confidential Information,\nmakes any unauthorized disclosure or communication of such Confidential Information to any third party or makes any use of such\nConfidential Information wrongfully or in competition with ENERGIZER;\nWHEREAS, MR. MULCAHY has indicated his interest in retiring; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to engage (either directly or indirectly)\nin\ncompetition with, or to solicit any client or account of, ENERGIZER; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to disclose certain information relating to\nENERGIZER's business; and\nWHEREAS, ENERGIZER and MR. MULCAHY desire to confirm the terms and conditions of their agreements and understandings\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, and the parties hereto agree as follows:\n1.\nCovenants Not to Compete or Disclose. MR. MULCAHY acknowledges that the services rendered to ENERGIZER in the\naforesaid capacity are of a special character which have a unique value to ENERGIZER, the loss of which cannot be adequately\ncompensated by damages in an action of law. MR. MULCAHY agrees that by virtue of his employment, he has gained a special and unique\nunderstanding of ENERGIZER's business in the formulation, processing, manufacturing, sale, and marketing of ENERGIZER's battery and\nbattery related products and ENERGIZER's wet-shave products, as wel as other products formulated, processed, manufactured, sold, or\nmarketed by ENERGIZER during the tenure of MR. MULCAHY's employment. MR. MULCAHY at all times recognizes and respects the\nadvantageous business relationship which exists between ENERGIZER and present and potential customers who have been made aware\nof the products and services of ENERGIZER. MR. MULCAHY makes the covenants contained in this Agreement in view of (i) the unique\nvalue of the services of MR. MULCAHY for which ENERGIZER has employed MR. MULCAHY; (ii) the Confidentia Information obtained by\nor disclosed to MR. MULCAHY as an employee of ENERGIZER; and (iii) ENERGIZER's agreement to provide MR. MULCAHY with\nconsideration as provided herein.\n2.\nNon-Competition.\na.\nMR. MULCAHY agrees that for a period of five (5) years after termination of MR. MULCAHY's employment\ni.e., from January 25, 2005 through January 25, 2010 ("the Non-Compete Period"), MR. MULCAHY will not compete\nagainst ENERGIZER in ENERGIZER business.\nb.\nFor purposes of this Agreement, "ENERGIZER business" shall mean any of the following business\nactivities: all aspects of manufacturing, marketing, distributing, consulting with regard to, and/or operating a facility for the\nmanufacturing, processing, marketing, or distribution of batteries, lighting products, rechargeable batteries, related battery and\nlighting products, and wet-shave products. "ENERGIZER business" includes products and/or methods that presently are used,\nwere used, or are under development or consideration, whether or not completed, for use by ENERGIZER as of the date MR.\nMULCAHY'S employment terminates.\nC.\nFor purposes of this Agreement, to "compete" means to accept or begin employment with, advise, finance,\nown (partially or in whole), consult with, or accept an assignment through an employer with any third party world wide in a\nposition involving or relating to ENERGIZER business.\nd.\nThis Agreement does not preclude MR. MULCAHY from buying or selling shares of stock in any company\nthat is publicly listed and traded in any stock exchange or over-the-counter market. Provided, however, that MR. MULCAHY\nmay not use Confidential Information to engage in, or induce others to engage in, insider trading as prohibited by federal and\nstate securities laws.\nMR.\nMULCAHY\nacknowledges\nand\nagrees\nthat\nthe\nforegoing\nrestrictions\nare\nreasonable\nand\nnecessary\nfor\nthe\nprotection\nof\nthe\ngoodwill and business of ENERGIZER and are enforceable in view of, among other things; (i) the narrow range of activities\nprohibited, (ii) the national and internationa markets in which ENERGIZER operates, (iii) the Confidentia Information to which MR.\nMULCAHY\nhad\naccess\nduring\nhis\nemployment,\nand\n(iv)\nMR.\nMULCAHY'S\nbackground\nand\nqualifications\nare\nsuch\nthat\nthe\nrestrictions\nwil not impose an undue hardship on MR. MULCAHY nor unreasonably interfere with MR. MULCAHY'S ability to earn a livelihood.\nThe parties hereby acknowledge that the nature of the business conducted by ENERGIZER and the position of ENERGIZER in the\nbattery and wet-shave industry mandate the foregoing non-competition restriction for a substantial duration in order to protect\nand\npreserve the competitive advantage and goodwil of ENERGIZER.\n3.\nNon-Solicitation.\nFor the duration of the Non-Compete Period, MR. MULCAHY shal not\n(i)\ninduce or attempt to induce any employee of ENERGIZER to leave the employ of ENERGIZER or in any way interfere with the\nrelationship between ENERGIZER and its employees or (ii) induce or attempt to induce any customer, supplier, distributor, broker, or\nother business relation of ENERGIZER to cease doing business with ENERGIZER, or in any way interfere with the relationship\nbetween any customer, supplier, distributor, broker or other business relation and ENERGIZER.\n4.\nConfidentiality of Information.\nMR. MULCAHY acknowledges that the information, observations and data relating to the formulation, processing,\nmanufacturing, sale and marketing of ENERGIZER's batteries, battery related products, and wet-shave products obtained by MR.\nMULCAHY during the course of MR. MULCAHY'S employment with ENERGIZER (the "Confidential Information") are confidential and the\nexclusive\nproperty\nof\nENERGIZER.\nMR.\nMULCAHY\nagrees\nthat\nhe\nwill\nnot\ndisclose\nto\nany\nunauthorized\npersons\nor\nuse\nfor\nMR.\nMULCAHY'S own account or for the benefit of any third party (other than ENERGIZER) any of such Confidential Information without\nENERGIZER's prior written consent, unless and to the extent that such Confidential Information becomes generally known to, and available\nfor use by, the public other than as a result of MR. MULCAHY'S acts or failure to act.\nFor purposes of this Agreement, "Confidential Information" means all information with respect to the conduct or details of the\nbusiness and operations of ENERGIZER, including but not limited to current and planned information systems; the names, addresses or\nparticular desires or needs of its customers; the bounds of its markets; the prices charged for its services or products; its market share;\nmarketing strategies and promotional efforts in any market; product development, manufacturing processes, and research and development\nprojects;\nformulas, inventions and compilations of information, records or specifications; future product or market developments, financial\ninformation, information regarding suppliers, and costs of raw materials and other supplies; financing programs, overhead distribution and\nother expenses; conversion costs; contemplated, pending, or completed acquisitions; or personnel. MR. MULCAHY understands and\nagrees\nthat\nsuch\n"Confidential\nInformation"\nis\nimportant,\nmaterial\nand\nconfidential,\nand\nthat\ndisclosure\nwould\ngravely\naffect\nthe\nsuccessful\nconduct of ENERGIZER's businesses. The obligation to protect Confidential Information is on-going and does not expire upon the\ntermination of the parties' contractual relationship.\n5.\nSpecific Performance. MR. MULCAHY acknowledges that irreparable injury will be caused to ENERGIZER by\nany breach or threatened breach of any of the provisions of paragraphs 2 through 4 and MR. MULCAHY therefore agrees that, in the event\nof\nany\nbreach\nor\nthreatened\nbreach,\nENERGIZER,\nin\naddition\nto\nall\nof\nthe\nrights\nand\nremedies\nat\nlaw\nor\nin\nequity\nas\nmay\nexist\nin\nits\nfavor,\nshall have the right, in a court of law or equity having jurisdiction, to enforce the specific performance of the foregoing provisions. In the\nevent of an action in a court of law or equity to enforce any provision of this Agreement, MR. MULCAHY shall be responsible for\nall\nexpenses incurred by ENERGIZER in connection therewith, including, but not limited to, ENERGIZER's reasonable attorney's fees and\ncosts.\n6.\nReasonableness of Restrictions. MR. MULCAHY has carefully read and considered the provisions of paragraphs\n2, 3, and 4 hereof, and having done so, agrees that the restrictions set forth in such paragraphs (including, but not limited to, the time period\nof the restriction set forth in paragraph 2 hereof) are fair and reasonable and required for the protection of the interests of ENERGIZER, its\nofficers, directors, and other employees.\n7.\nWaiver. The failure by ENERGIZER to enforce at any time any of the provisions hereof or to require at any time\nperformance by MR. MULCAHY of any provisions hereof, shall in no way be construed to be a release of MR. MULCAHY or waiver of such\nprovisions or to affect the validity of this Agreement or any part hereof, or the right of ENERGIZER thereafter to enforce every such\nprovision in accordance with the terms of this Agreement.\n8.\nSavings and Severability Clause.\n(a) Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law or to be\ncontrary to law, and whenever there is any conflict between any provision of this Agreement and any present or future statute, law,\ngovernment regulation or ordinance contrary to which the parties have no legal right to contract, the latter shall prevail, but in such event\nthe\nprovisions of this Agreement affected shall be curtailed and restricted only to the extent necessary to bring them within legal requirements.\n(b)\nIf any provision of the covenants and agreements hereof above shall be held invalid or unenforceable\nbecause of the scope of the territory or the actions thereby restricted, or the period of time within which such covenant or agreement is\noperative, or for any other reason, it is the intent of the parties hereto that such provision shall be construed by limiting and reducing it, or, if\nnecessary eliminating it so that the provisions hereof shall be valid and enforceable to the extent compatible with applicable law as\ndetermined by a court of competent jurisdiction\n9.\nBurden and Benefit. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and\ntheir legal representatives, successors, and permitted assigns.\n10.\nGoverning Law. All questions pertaining to the validity, construction, execution, and performance of this\nAgreement shall be construed in accordance with, and be governed by, the laws of the State of Missouri, without giving effect to the choice\nof law principles thereof.\n11\nEnergizer Defined. For purposes of this Agreement, the term "ENERGIZER" as used herein shall include\nEnergizer Holdings, Inc., Eveready Battery Company, Inc., Schick Manufacturing, Inc., all subsidiary and affiliated companies,\npredecessors, and successors of the aforementioned, and all officers, directors, agents, and employees of any of the aforementioned.\n12.\nRestricted Stock Equivalent Award\n(a) Grant. In exchange for signing this Agreement, MR. MULCAHY will receive a grant of 10,000 restricted common stock\nequivalents ("Equivalents") effective as of his termination date. This grant shall be pursuant to, and subject to the terms of, the Energizer\nHoldings, Inc. 2000 Incentive Stock Plan ("the Plan").\n(b) Vesting and Payment. All restricted stock granted pursuant to this Agreement will vest January 25, 2010. At such time, each\nvested Equivalent wil convert into one share of ENERGIZER's $.01 par value Common Stock, which will be issued to MR. MULCAHY.\n(c) Dividends. At the time of payment of shares of Common Stock to MR. MULCAHY, as described in (b) above, MR. MULCAHY will\nalso receive an additional cash payment equal to the amount of dividends, if any, which would have been paid on the shares of Common\nStock issued to him if MR. MULCAHY had actually acquired those shares on the date of crediting of his Equivalents. No interest shall be\nincluded in the calculation of such additional cash payment.\n(d) Forfeiture. All unvested unrestricted stock equivalents credited to MR. MULCAHY will be forfeited upon a determination by the\nBoard of Directors of Energizer Holdings, Inc. that MR. MULCAHY has violated any provision of paragraph 2, 3, or 4 hereof.\n(e) Acceleration. Notwithstanding anything in (b) above, all Equivalents credited to MR. MULCAHY will immediately vest, convert to\nshares of Common Stock, and be paid to MR. MULCAHY, his designated beneficiary, or his legal representative, in accordance with the\nterms of the Plan, in the event of:\n(i)\nMR. MULCAHY'S death;\n(ii)\na declaration of MR. MULCAHY'S total and permanent disability; or\n(iii)\na Change of Control of ENERGIZER, which for purposes of this Agreement shall be deemed to occur\nwhen (a) a person, as defined under the U.S. securities laws, acquires beneficial ownership of more than fifty percent (50%) of the\noutstanding\nvoting\nsecurities\nof\nENERGIZER;\nor\n(b)\nthe\ndirectors\nof\nENERGIZER\nimmediately\nbefore\na\nbusiness\ncombination\nbetween\nENERGIZER and another entity, or a proxy contest for the election of directors, shall, as a result thereof, cease to constitute a majority of\nthe Board of Directors of Energizer Holdings, Inc. or any successor corporation. Notwithstanding the foregoing, however, a Change\nof\nControl which is approved in advance by a majority of the Board of Directors of Energizer Holdings, Inc. shall not trigger acceleration as\ndescribed in this paragraph 12(e)(iii).\n13.\nNotices. Any notices necessary or required to be given under this Agreement shall be sufficiently\ngiven\nif\nin\nwriting, and personally delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, to the last known\naddresses of the parties hereto, or to such other address or addresses as any of the parties shall have specified in writing to the other party\nhereto.\n14.\nConsent to Advise Third Parties. MR. MULCAHY agrees ENERGIZER may advise any third party that\nENERGIZER deems necessary of the existence of this Agreement and of its terms. MR. MULCAHY agrees that ENERGIZER shall have no\nliability for so notifying any third party and hereby irrevocably waives any right to assert any such liability in the future.\n15.\nEntire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the\nmatters contained herein, and no modification, amendment, or waiver of any of the provision of this Agreement shall be effective unless in\nwriting and signed by all parties hereto. This Agreement constitutes the only agreement between the parties hereto with respect to the\nmatters herein contained.\n16.\nModifications. No change or modification of this Agreement shall be valid unless the same is in writing\nand\nsigned by all the parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the party against\nwhom it is sought to be enforced.\n17.\nEffect of MR. MULCAHY'S Signature. By the signing of this Agreement, MR. MULCAHY signifies that MR.\nMULCAHY has fully read, completely understands, and voluntarily agrees with this Agreement consisting of six (6) pages and seventeen\n(17) paragraphs and knowingly and voluntarily accepts all of its terms and conditions.\nIN WITNESS WHEREOF, ENERGIZER and MR. MULCAHY have duly executed this Agreement as of the date first above written.\nENERGIZER HOLINGS, INC.\nJ. PATRICK\nMULCAHY\nBy:\nPeter J. Conrad\nVice President\nHuman Resources\nDate:\nDate:\nWitness:\nDate:	EX-10.3 6 exhibit10c.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made as of the ___ day of\n_ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ , 2005, by and between ENERGIZER HOLDINGS, INC., (hereinafter referred to as “ENERGIZER” and as defined in\nParagraph 11) and J. PATRICK MULCAHY (hereinafter referred to as “MR. MULCAHY”).\nWHEREAS, MR. MULCAHY is an employee of ENERGIZER in a key leadership and strategic position;\nWHEREAS, ENERGIZER and MR. MULCAHY acknowledge that, in MR. MULCAHY’s capacity as an employee of ENERGIZER,\nMR. MULCAHY did contribute to and/or receive Confidential Information, and MR. MULCAHY acknowledges that ENERGIZER will suffer\nirreparable harm if MR. MULCAHY, after having developed and/or created and/or becoming familiar with any such Confidential Information,\nmakes any unauthorized disclosure or communication of such Confidential Information to any third party or makes any use of such\nConfidential Information wrongfully or in competition with ENERGIZER;\nWHEREAS, MR. MULCAHY has indicated his interest in retiring; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to engage (either directly or indirectly) in\ncompetition with, or to solicit any client or account of, ENERGIZER; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to disclose certain information relating to\nENERGIZER’s business; and\nWHEREAS, ENERGIZER and MR. MULCAHY desire to confirm the terms and conditions of their agreements and understandings.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, and the parties hereto agree as follows:\n1. Covenants Not to Compete or Disclose. MR. MULCAHY acknowledges that the services rendered to ENERGIZER in the\naforesaid capacity are of a special character which have a unique value to ENERGIZER, the loss of which cannot be adequately\ncompensated by damages in an action of law. MR. MULCAHY agrees that by virtue of his employment, he has gained a special and unique\nunderstanding of ENERGIZER’s business in the formulation, processing, manufacturing, sale, and marketing of ENERGIZER’s battery and\nbattery related products and ENERGIZER’s wet-shave products, as well as other products formulated, processed, manufactured, sold, or\nmarketed by ENERGIZER during the tenure of MR. MULCAHY’s employment. MR . MULCAHY at all times recognizes and respects the\nadvantageous business relationship which exists between ENERGIZER and present and potential customers who have been made aware\nof the products and services of ENERGIZER. MR. MULCAHY makes the covenants contained in this Agreement in view of (i) the unique\nvalue of the services of MR. MULCAHY for which ENERGIZER has employed MR. MULCAHY; (ii) the Confidential Information obtained by\nor disclosed to MR. MULCAHY as an employee of ENERGIZER; and (iii) ENERGIZER’s agreement to provide MR. MULCAHY with\nconsideration as provided herein.\n2.\nNon-Competition.\na.\nMR. MULCAHY agrees that for a period of five (5) years after termination of MR. MULCAHY’s employment\n--\ni.e ., from January 25, 2005 through January 25, 2010 -- (“the Non-Compete Period”), MR. MULCAHY will not compete\nagainst ENERGIZER in ENERGIZER business.\nb.\nFor purposes of this Agreement, “ENERGIZER business” shall mean any of the following business\nactivities: all aspects of manufacturing, marketing, distributing, consulting with regard to, and/or operating a facility for the\nmanufacturing, processing, marketing, or distribution of batteries, lighting products, rechargeable batteries, related battery and\nlighting products, and wet-shave products. “ENERGIZER business” includes products and/or methods that presently are used,\nwere used, or are under development or consideration, whether or not completed, for use by ENERGIZER as of the date MR.\nMULCAHY’s employment terminates.\nc.\nFor purposes of this Agreement, to “compete” means to accept or begin employment with, advise, finance,\nown (partially or in whole), consult with, or accept an assignment through an employer with any third party world wide in a\nposition involving or relating to ENERGIZER business.\nd.\nThis Agreement does not preclude MR. MULCAHY from buying or selling shares of stock in any company\nthat is publicly listed and traded in any stock exchange or over-the-counter market. Provided, however, that MR. MULCAHY\nmay not use Confidential Information to engage in, or induce others to engage in, insider trading as prohibited by federal and\nstate securities laws.\nMR. MULCAHY acknowledges and agrees that the foregoing restrictions are reasonable and necessary for the protection of the\ngoodwill and business of ENERGIZER and are enforceable in view of, among other things; (i) the narrow range of activities\nprohibited, (ii) the national and international markets in which ENERGIZER operates, (iii) the Confidential Information to which MR.\nMULCAHY had access during his employment, and (iv) MR. MULCAHY’s background and qualifications are such that the restrictions\nwill not impose an undue hardship on MR. MULCAHY nor unreasonably interfere with MR. MULCAHY’s ability to earn a livelihood.\nThe parties hereby acknowledge that the nature of the business conducted by ENERGIZER and the position of ENERGIZER in the\nbattery and wet-shave industry mandate the foregoing non-competition restriction for a substantial duration in order to protect and\npreserve the competitive advantage and goodwill of ENERGIZER.\n3.\nNon-Solicitation.\nFor the duration of the Non-Compete Period, MR. MULCAHY shall not (i)\ninduce or attempt to induce any employee of ENERGIZER to leave the employ of ENERGIZER or in any way interfere with the\nrelationship between ENERGIZER and its employees or (ii) induce or attempt to induce any customer, supplier, distributor, broker, or\nother business relation of ENERGIZER to cease doing business with ENERGIZER, or in any way interfere with the relationship\nbetween any customer, supplier, distributor, broker or other business relation and ENERGIZER.\n4.\nConfidentiality of Information.\nMR. MULCAHY acknowledges that the information, observations and data relating to the formulation, processing,\nmanufacturing, sale and marketing of ENERGIZER's batteries, battery related products, and wet-shave products obtained by MR.\nMULCAHY during the course of MR. MULCAHY’s employment with ENERGIZER (the "Confidential Information") are confidential and the\nexclusive property of ENERGIZER. MR . MULCAHY agrees that he will not disclose to any unauthorized persons or use for MR.\nMULCAHY’s own account or for the benefit of any third party (other than ENERGIZER) any of such Confidential Information without\nENERGIZER’s prior written consent, unless and to the extent that such Confidential Information becomes generally known to, and available\nfor use by, the public other than as a result of MR. MULCAHY’s acts or failure to act.\nFor purposes of this Agreement, “Confidential Information” means all information with respect to the conduct or details of the\nbusiness and operations of ENERGIZER, including but not limited to current and planned information systems; the names, addresses or\nparticular desires or needs of its customers; the bounds of its markets; the prices charged for its services or products; its market share;\nmarketing strategies and promotional efforts in any market; product development, manufacturing processes, and research and development\nprojects; formulas, inventions and compilations of information, records or specifications; future product or market developments, financial\ninformation, information regarding suppliers, and costs of raw materials and other supplies; financing programs, overhead distribution and\nother expenses; conversion costs; contemplated, pending, or completed acquisitions; or personnel. MR. MULCAHY understands and\nagrees that such “Confidential Information” is important, material and confidential, and that disclosure would gravely affect the successful\nconduct of ENERGIZER’s businesses. The obligation to protect Confidential Information is on-going and does not expire upon the\ntermination of the parties’ contractual relationship.\n5.\nSpecific Performance. MR. MULCAHY acknowledges that irreparable injury will be caused to ENERGIZER by\nany breach or threatened breach of any of the provisions of paragraphs 2 through 4 and MR. MULCAHY therefore agrees that, in the event\nof any breach or threatened breach, ENERGIZER, in addition to all of the rights and remedies at law or in equity as may exist in its favor,\nshall have the right, in a court of law or equity having jurisdiction, to enforce the specific performance of the foregoing provisions. In the\nevent of an action in a court of law or equity to enforce any provision of this Agreement, MR. MULCAHY shall be responsible for all\nexpenses incurred by ENERGIZER in connection therewith, including, but not limited to, ENERGIZER’s reasonable attorney’s fees and\ncosts.\n6.\nReasonableness of Restrictions. MR . MULCAHY has carefully read and considered the provisions of paragraphs\n2, 3, and 4 hereof, and having done so, agrees that the restrictions set forth in such paragraphs (including, but not limited to, the time period\nof the restriction set forth in paragraph 2 hereof) are fair and reasonable and required for the protection of the interests of ENERGIZER, its\nofficers, directors, and other employees.\n7.\nWaiver. The failure by ENERGIZER to enforce at any time any of the provisions hereof or to require at any time\nperformance by MR. MULCAHY of any provisions hereof, shall in no way be construed to be a release of MR. MULCAHY or waiver of such\nprovisions or to affect the validity of this Agreement or any part hereof, or the right of ENERGIZER thereafter to enforce every such\nprovision in accordance with the terms of this Agreement.\n8.\nSavings and Severability Clause.\n(a) Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law or to be\ncontrary to law, and whenever there is any conflict between any provision of this Agreement and any present or future statute, law,\ngovernment regulation or ordinance contrary to which the parties have no legal right to contract, the latter shall prevail, but in such event the\nprovisions of this Agreement affected shall be curtailed and restricted only to the extent necessary to bring them within legal requirements.\n(b)\nIf any provision of the covenants and agreements hereof above shall be held invalid or unenforceable\nbecause of the scope of the territory or the actions thereby restricted, or the period of time within which such covenant or agreement is\noperative, or for any other reason, it is the intent of the parties hereto that such provision shall be construed by limiting and reducing it, or, if\nnecessary eliminating it so that the provisions hereof shall be valid and enforceable to the extent compatible with applicable law as\ndetermined by a court of competent jurisdiction.\n9.\nBurden and Benefit. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and\ntheir legal representatives, successors, and permitted assigns.\n10.\nGoverning Law. All questions pertaining to the validity, construction, execution, and performance of this\nAgreement shall be construed in accordance with, and be governed by, the laws of the State of Missouri, without giving effect to the choice\nof law principles thereof.\n11.\nEnergizer Defined. For purposes of this Agreement, the term “ENERGIZER” as used herein shall include\nEnergizer Holdings, Inc.,\nEveready Battery Company, Inc.,\nSchick Manufacturing, Inc.,\nall subsidiary and affiliated companies,\npredecessors, and successors of the aforementioned, and all officers, directors, agents, and employees of any of the aforementioned.\n12.\nRestricted Stock Equivalent Award\n(a) Grant. In exchange for signing this Agreement, MR. MULCAHY will receive a grant of 10,000 restricted common stock\nequivalents (“Equivalents”) effective as of his termination date. This grant shall be pursuant to, and subject to the terms of, the Energizer\nHoldings, Inc. 2000 Incentive Stock Plan (“the Plan”).\n(b) Vesting and Payment. All restricted stock granted pursuant to this Agreement will vest January 25, 2010. At such time, each\nvested Equivalent will convert into one share of ENERGIZER’s $.01 par value Common Stock, which will be issued to MR. MULCAHY.\n(c) Dividends. At the time of payment of shares of Common Stock to MR. MULCAHY, as described in (b) above, MR. MULCAHY will\nalso receive an additional cash payment equal to the amount of dividends, if any, which would have been paid on the shares of Common\nStock issued to him if MR. MULCAHY had actually acquired those shares on the date of crediting of his Equivalents. No interest shall be\nincluded in the calculation of such additional cash payment.\n(d) Forfeiture. All unvested unrestricted stock equivalents credited to MR. MULCAHY will be forfeited upon a determination by the\nBoard of Directors of Energizer Holdings, Inc. that MR. MULCAHY has violated any provision of paragraph 2, 3, or 4 hereof.\n(e) Acceleration. Notwithstanding anything in (b) above, all Equivalents credited to MR. MULCAHY will immediately vest, convert to\nshares of Common Stock, and be paid to MR. MULCAHY, his designated beneficiary, or his legal representative, in accordance with the\nterms of the Plan, in the event of:\n(i)\nMR. MULCAHY’s death;\n(ii)\na declaration of MR. MULCAHY’s total and permanent disability; or\n(iii)\na Change of Control of ENERGIZER, which for purposes of this Agreement shall be deemed to occur\nwhen (a) a person, as defined under the U.S. securities laws, acquires beneficial ownership of more than fifty percent (50%) of the\noutstanding voting securities of ENERGIZER; or (b) the directors of ENERGIZER immediately before a business combination between\nENERGIZER and another entity, or a proxy contest for the election of directors, shall, as a result thereof, cease to constitute a majority of\nthe Board of Directors of Energizer Holdings, Inc. or any successor corporation. Notwithstanding the foregoing, however, a Change of\nControl which is approved in advance by a majority of the Board of Directors of Energizer Holdings, Inc. shall not trigger acceleration as\ndescribed in this paragraph 12(e)(iii).\n13.\nNotices. Any notices necessary or required to be given under this Agreement shall be sufficiently given if in\nwriting, and personally delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, to the last known\naddresses of the parties hereto, or to such other address or addresses as any of the parties shall have specified in writing to the other party\nhereto.\n14.\nConsent to Advise Third Parties. MR . MULCAHY agrees ENERGIZER may advise any third party that\nENERGIZER deems necessary of the existence of this Agreement and of its terms. MR. MULCAHY agrees that ENERGIZER shall have no\nliability for so notifying any third party and hereby irrevocably waives any right to assert any such liability in the future.\n15.\nEntire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the\nmatters contained herein, and no modification, amendment, or waiver of any of the provision of this Agreement shall be effective unless in\nwriting and signed by all parties hereto. This Agreement constitutes the only agreement between the parties hereto with respect to the\nmatters herein contained.\n16.\nModifications. No change or modification of this Agreement shall be valid unless the same is in writing and\nsigned by all the parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the party against\nwhom it is sought to be enforced.\n17.\nEffect of MR. MULCAHY’s Signature. By the signing of this Agreement, MR. MULCAHY signifies that MR.\nMULCAHY has fully read, completely understands, and voluntarily agrees with this Agreement consisting of six (6) pages and seventeen\n(17) paragraphs and knowingly and voluntarily accepts all of its terms and conditions.\nIN WITNESS WHEREOF, ENERGIZER and MR. MULCAHY have duly executed this Agreement as of the date first above written.\nENERGIZER HOLINGS, INC.\nJ. PATRICK\nMULCAHY\nBy:\n___________________________\n___________________________\nPeter J. Conrad\nVice President\nHuman Resources\nDate:___________________________\nDate:______________________\nWitness:____________________\nDate:______________________
7082d6dc98f0275c310f264c481abaf7.pdf	effective_date jurisdiction party term	EX-10.2 3 vnb30097818-ex102.htm NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nNon-Disclosure, Non-Solicitation and Non-Competition Agreement\nDate: March 2, 2017\nName: Glenn W. Rust\nVirginia National Bank and its affiliates, including Virginia National Bankshares Corporation and VNBTrust, N.A., also known as VNB Wealth\nManagement (together “VNB”), has provided you with the continued opportunity to be a key member of VNB’s executive management team. As a\ncondition of your employment opportunity with VNB, you must sign and return this Non-Disclosure, Non-Solicitation and Non-Competition\nAgreement (this “Agreement”).\nIn consideration of this employment opportunity, your compensation, including your base salary, potential incentive compensation, Management\nContinuity Agreement with VNB, benefits, training, personal and professional growth potential, the opportunity to play an integral role in the\ncontinued growth and development of a community-based financial services organization, and other good and valuable consideration, the adequacy\nand receipt of which are hereby acknowledged, with your signature you acknowledge and agree to the following:\n1. Acknowledgement of VNB’s Interest.\nYou acknowledge that VNB has invested substantial time, money and resources in the development and retention of its customers, accounts,\nbusiness and employees. You acknowledge and agree that any and all "goodwill" associated with any customer, account, business or employee of\nVNB belongs exclusively to VNB. You further acknowledge and agree that during the course of your performing services for VNB, VNB employees\nand/or customers may furnish, disclose or otherwise make available to you confidential and proprietary information and that VNB may provide you\nwith unique and specialized training. You also acknowledge that (a) such relationships, information and training have been, and will continue to be,\ndeveloped by VNB through the expenditure by VNB of substantial time, effort and money, (b) all such relationships, information and training are\nvaluable to VNB and (c) use of such relationships, information and training by you other than for VNB’s benefit will cause substantial harm to VNB.\n2. Non-Disclosure of Confidential and Proprietary Information.\nVNB has developed and continues to develop, use and maintain confidential and proprietary information, which may include competitive\ninformation and trade secrets, concerning VNB’s business, customers and employees, including, without limitation, the following: identity and other\ninformation related to present and prospective customers; business organization and structure; business and marketing plans and strategies; training\nprograms and materials; product information; personnel information including employees' capabilities, salaries, benefits, and any other terms of\nemployment; policies, standards and procedures; current and prospective vendors and contracts; and profit, loss and other financial information\n(collectively, the "Confidential Information"). You acknowledge that during your employment with VNB you will have direct and indirect access to,\nand knowledge of, the Confidential Information, and you agree to take all reasonable measures to protect the confidentiality of such Confidential\nInformation. You agree to use the Confidential Information, both during and after your employment, for the sole benefit of VNB.\nYou agree and attest that any and all such Confidential Information is, and shall remain, the sole property of VNB. You agree that you will hold such\nConfidential Information in the strictest confidence and that you will not (except as required in the course of your employment with VNB, as\nrequired by any court, supervisory authority or administrative agency, or as otherwise required by applicable law) disclose, either directly or\nindirectly, any Confidential Information to any other business, firm, entity or person, unless such information\nhas become a matter of public knowledge at the time of such disclosure. You further agree that you will not remove or retain any Confidential\nInformation regardless of how it is maintained. You agree to return to VNB any and all copies of the Confidential Information that you have, or have\nhad, in your possession immediately upon termination of employment, whether voluntary or involuntary or upon any request by VNB. The terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that you may have, or believe you may have, relating to\nthe protection of the Confidential Information or your employment. The terms of this paragraph shall survive indefinitely the termination of this\nAgreement and/or your employment with VNB.\n3. Non-Solicitation.\na. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not, directly or indirectly, on your own behalf or in the service of or on behalf of any other person or entity\nother than VNB, solicit, divert or appropriate, or attempt to solicit, divert or appropriate, any business from any VNB customers or prospective\ncustomers with whom/which you have had contact during the course of your employment or about whom/which you have obtained Confidential\nInformation during the course of your employment.\nb. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not (i) enter into, and will not participate in, any plan or arrangement to cause any employee of VNB to\nterminate his or her employment with VNB, or (ii) directly or indirectly solicit any VNB employee for employment in connection with any business\ninitiated by you or any other person, firm, company or corporation.\n4. Non-Competition.\nYou agree that both during the course of your employment, and for a period of three (3) months following the voluntary or involuntary termination\nof your employment, you will not accept employment or otherwise engage in any activity or work, that is in any way competitive with the business\nof VNB in which you are significantly involved at any time during your employment with VNB in a geographic area within a 30 mile radius of your\nthen current office location (or, if applicable, the office location at which you were primarily working immediately prior to the termination of your\nemployment with VNB) or within a 10 mile radius of any other VNB location. For purposes of this Agreement, you acknowledge and agree that\nVNB and its affiliates are engaged in the financial services business which includes, without limitation, commercial and retailing banking and\nlending, treasury management, private banking, trust, investment/brokerage services, wealth management and funds management. You also\nacknowledge that VNB has strategic plans related to offering services such as leasing, brokerage, international and factoring, and that those services\nand businesses will be considered competitive with VNB under the terms of this Agreement to the extent that you are significantly involved in such\nservices or businesses during your employment with VNB.\n5. Enforcement of this Agreement.\nYou agree that the provisions outlined above are necessary and reasonable to protect the best interests of VNB, its customers, and its employees.\nFurther, you agree that in the event of your breach of any of the provisions of this Agreement, VNB would suffer substantial irreparable harm and\nthat monetary damages alone may not be sufficient to protect VNB adequately from such breach. In the event of a breach or threatened breach by\nyou of any of the provisions of this Agreement, in addition to such other remedies as VNB may have available at law, VNB shall be entitled to seek\nand obtain equitable relief, in the form of specific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable\nremedy which then may be available. The seeking or granting of an injunction or other equitable remedy shall not affect VNB’s right to seek and\nobtain damages or other equitable relief on account of any such\nPage2of3\nactual or threatened breach. You agree to pay all reasonable costs and expenses incurred by VNB in enforcing the provisions of this Agreement,\nincluding VNB’s attorneys’ fees.\n6. Miscellaneous\na. You acknowledge that you will be an “at will” employee of VNB and that your employment may be terminated at any time, with or without cause,\nat the option of you or VNB. You also acknowledge that neither this Agreement nor any employee handbook or other document you may receive\ncreates any contractual rights contrary to the foregoing and that no representative or agent of Employer other than an Authorized Representative of\nVNB through a written, signed document has any authority to enter into any agreement for employment for any specified time period or to make any\nother agreement contrary to the foregoing. For purposes of this Agreement, an “Authorized Representative of VNB” shall mean either the Chairman\nof the Board, Chairman of the Compensation Committee, Chief Executive Officer, or President of VNB; provided, however, you may not sign on\nbehalf of VNB even if you hold one of the identified positions with VNB.\nb. This Agreement contains the entire understanding between you and VNB and supersedes any prior written or oral agreements with VNB. This\nAgreement shall not be modified or waived except by written instrument signed by you and an Authorized Representative of VNB.\nc. In the event that any provision of this Agreement shall be declared unenforceable or invalid, the remaining provisions shall continue to be valid\nand enforceable.\nd. This Agreement shall inure to the benefit of and be enforceable by VNB and/or VNB’s successors in interest, subsidiaries and affiliates.\ne. You acknowledge that this Agreement shall be governed and enforced in accordance with the laws of the Commonwealth of Virginia, without\nregard to conflicts of law principal. You agree that the state and federal courts located in the City of Charlottesville or the County of Albemarle shall\nbe the exclusive jurisdictions for the resolution of any disputes concerning this Agreement, and you agree to submit to the jurisdiction of those\ncourts.\nf. You acknowledge that you have had the opportunity to consult with an attorney prior to signing this Agreement.\nWith your signature, you attest to your understanding of the provisions outlined above and voluntarily agree to each of the terms of this Agreement.\n/s/ Glenn W. Rust\n(SEAL)\nSignature\nPrinted Name: Glenn W. Rust\nDate:\nMarch 2, 2017\nACCEPTED:\nVirginia National Bank\nBy /s/ Steven W. Blaine\nSteven W. Blaine\nChairman of VNB’s Compensation Committee\nDate: March 2, 2017\nPage3of3	EX-10.2 3 vnb30097818-ex102.htm NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nNon-Disclosure, Non-Solicitation and Non-Competition Agreement\nDate: March 2, 2017\nName: Glenn W. Rust\nVirginia National Bank and its affiliates, including Virginia National Bankshares Corporation and VNBTrust, N.A., also known as VNB Wealth\nManagement (together “VNB”), has provided you with the continued opportunity to be a key member of VNB’s executive management team. As a\ncondition of your employment opportunity with VNB, you must sign and return this Non-Disclosure, Non-Solicitation and Non-Competition\nAgreement (this “Agreement”).\nIn consideration of this employment opportunity, your compensation, including your base salary, potential incentive compensation, Management\nContinuity Agreement with VNB, benefits, training, personal and professional growth potential, the opportunity to play an integral role in the\ncontinued growth and development of a community-based financial services organization, and other good and valuable consideration, the adequacy\nand receipt of which are hereby acknowledged, with your signature you acknowledge and agree to the following:\n1. Acknowledgement of VNB’s Interest.\nYou acknowledge that VNB has invested substantial time, money and resources in the development and retention of its customers, accounts,\nbusiness and employees. You acknowledge and agree that any and all "goodwill" associated with any customer, account, business or employee of\nVNB belongs exclusively to VNB. You further acknowledge and agree that during the course of your performing services for VNB, VNB employees\nand/or customers may furnish, disclose or otherwise make available to you confidential and proprietary information and that VNB may provide you\nwith unique and specialized training. You also acknowledge that (a) such relationships, information and training have been, and will continue to be,\ndeveloped by VNB through the expenditure by VNB of substantial time, effort and money, (b) all such relationships, information and training are\nvaluable to VNB and (c) use of such relationships, information and training by you other than for VNB’s benefit will cause substantial harm to VNB.\n2. Non-Disclosure of Confidential and Proprietary Information.\nVNB has developed and continues to develop, use and maintain confidential and proprietary information, which may include competitive\ninformation and trade secrets, concerning VINB’s business, customers and employees, including, without limitation, the following: identity and other\ninformation related to present and prospective customers; business organization and structure; business and marketing plans and strategies; training\nprograms and materials; product information; personnel information including employees' capabilities, salaries, benefits, and any other terms of\nemployment; policies, standards and procedures; current and prospective vendors and contracts; and profit, loss and other financial information\n(collectively, the "Confidential Information"). You acknowledge that during your employment with VNB you will have direct and indirect access to,\nand knowledge of, the Confidential Information, and you agree to take all reasonable measures to protect the confidentiality of such Confidential\nInformation. You agree to use the Confidential Information, both during and after your employment, for the sole benefit of VNB.\nYou agree and attest that any and all such Confidential Information is, and shall remain, the sole property of VNB. You agree that you will hold such\nConfidential Information in the strictest confidence and that you will not (except as required in the course of your employment with VNB, as\nrequired by any court, supervisory authority or administrative agency, or as otherwise required by applicable law) disclose, either directly or\nindirectly, any Confidential Information to any other business, firm, entity or person, unless such information\nhas become a matter of public knowledge at the time of such disclosure. You further agree that you will not remove or retain any Confidential\nInformation regardless of how it is maintained. You agree to return to VNB any and all copies of the Confidential Information that you have, or have\nhad, in your possession immediately upon termination of employment, whether voluntary or involuntary or upon any request by VNB. The terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that you may have, or believe you may have, relating to\nthe protection of the Confidential Information or your employment. The terms of this paragraph shall survive indefinitely the termination of this\nAgreement and/or your employment with VNB.\n3. Non-Solicitation.\na. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not, directly or indirectly, on your own behalf or in the service of or on behalf of any other person or entity\nother than VNB, solicit, divert or appropriate, or attempt to solicit, divert or appropriate, any business from any VNB customers or prospective\ncustomers with whom/which you have had contact during the course of your employment or about whom/which you have obtained Confidential\nInformation during the course of your employment.\nb. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not (i) enter into, and will not participate in, any plan or arrangement to cause any employee of VNB to\nterminate his or her employment with VNB, or (ii) directly or indirectly solicit any VNB employee for employment in connection with any business\ninitiated by you or any other person, firm, company or corporation.\n4. Non-Competition.\nYou agree that both during the course of your employment, and for a period of three (3) months following the voluntary or involuntary termination\nof your employment, you will not accept employment or otherwise engage in any activity or work, that is in any way competitive with the business\nof VNB in which you are significantly involved at any time during your employment with VNB in a geographic area within a 30 mile radius of your\nthen current office location (or, if applicable, the office location at which you were primarily working immediately prior to the termination of your\nemployment with VNB) or within a 10 mile radius of any other VNB location. For purposes of this Agreement, you acknowledge and agree that\nVNB and its affiliates are engaged in the financial services business which includes, without limitation, commercial and retailing banking and\nlending, treasury management, private banking, trust, investment/brokerage services, wealth management and funds management. You also\nacknowledge that VNB has strategic plans related to offering services such as leasing, brokerage, international and factoring, and that those services\nand businesses will be considered competitive with VNB under the terms of this Agreement to the extent that you are significantly involved in such\nservices or businesses during your employment with VNB.\n5. Enforcement of this Agreement.\nYou agree that the provisions outlined above are necessary and reasonable to protect the best interests of VNB, its customers, and its employees.\nFurther, you agree that in the event of your breach of any of the provisions of this Agreement, VNB would suffer substantial irreparable harm and\nthat monetary damages alone may not be sufficient to protect VNB adequately from such breach. In the event of a breach or threatened breach by\nyou of any of the provisions of this Agreement, in addition to such other remedies as VNB may have available at law, VNB shall be entitled to seek\nand obtain equitable relief, in the form of specific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable\nremedy which then may be available. The seeking or granting of an injunction or other equitable remedy shall not affect VNB’s right to seek and\nobtain damages or other equitable relief on account of any such\nPage 2 of 3\nactual or threatened breach. You agree to pay all reasonable costs and expenses incurred by VNB in enforcing the provisions of this Agreement,\nincluding VNB’s attorneys’ fees.\n6. Miscellaneous\na. You acknowledge that you will be an “at will” employee of VNB and that your employment may be terminated at any time, with or without cause,\nat the option of you or VNB. You also acknowledge that neither this Agreement nor any employee handbook or other document you may receive\ncreates any contractual rights contrary to the foregoing and that no representative or agent of Employer other than an Authorized Representative of\nVNB through a written, signed document has any authority to enter into any agreement for employment for any specified time period or to make any\nother agreement contrary to the foregoing. For purposes of this Agreement, an “Authorized Representative of VNB” shall mean either the Chairman\nof the Board, Chairman of the Compensation Committee, Chief Executive Officer, or President of VNB; provided, however, you may not sign on\nbehalf of VNB even if you hold one of the identified positions with VNB.\nb. This Agreement contains the entire understanding between you and VNB and supersedes any prior written or oral agreements with VNB. This\nAgreement shall not be modified or waived except by written instrument signed by you and an Authorized Representative of VNB.\nc. In the event that any provision of this Agreement shall be declared unenforceable or invalid, the remaining provisions shall continue to be valid\nand enforceable.\nd. This Agreement shall inure to the benefit of and be enforceable by VNB and/or VNB’s successors in interest, subsidiaries and affiliates.\ne. You acknowledge that this Agreement shall be governed and enforced in accordance with the laws of the Commonwealth of Virginia, without\nregard to conflicts of law principal. You agree that the state and federal courts located in the City of Charlottesville or the County of Albemarle shall\nbe the exclusive jurisdictions for the resolution of any disputes concerning this Agreement, and you agree to submit to the jurisdiction of those\ncourts.\nf. You acknowledge that you have had the opportunity to consult with an attorney prior to signing this Agreement.\nWith your signature, you attest to your understanding of the provisions outlined above and voluntarily agree to each of the terms of this Agreement.\n/s/ Glenn W. Rust (SEAL)\nSignature\nPrinted Name: Glenn W. Rust\nDate: March 2, 2017\nACCEPTED:\nVirginia National Bank\nBy  /s/ Steven W. Blaine\nSteven W. Blaine\nChairman of VNB’s Compensation Committee\nDate: March 2, 2017\nPage 3 of 3	EX-10.2 3 vnb30097818-ex102.htm NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nNon-Disclosure, Non-Solicitation and Non-Competition Agreement\nDate: March 2, 2017\nName: Glenn W. Rust\nVirginia National Bank and its affiliates, including Virginia National Bankshares Corporation and VNBTrust, N.A., also known as VNB Wealth\nManagement (together "VNB"), has provided you with the continued opportunity to be a key member of VNB's executive management team. As\na\ncondition\nof\nyour\nemployment\nopportunity\nwith\nVNB,\nyou\nmust\nsign\nand\nreturn\nthis\nNon-Disclosure,\nNon-Solicitation\nand\nNon-Competition\nAgreement (this "Agreement").\nIn consideration of this employment opportunity, your compensation, including your base salary, potential incentive compensation, Management\nContinuity Agreement with VNB, benefits, training, personal and professional growth potential, the opportunity to play an integral role in\nthe\ncontinued growth and development of a community-based financial services organization, and other good and valuable consideration, the adequacy\nand receipt of which are hereby acknowledged, with your signature you acknowledge and agree to the following:\n1. Acknowledgement of VNB's Interest.\nYou acknowledge that VNB has invested substantial time, money and resources in the development and retention of its customers, accounts,\nbusiness and employees. You acknowledge and agree that any and all "goodwill" associated with any customer, account, business or employee of\nVNB\nbelongs\nexclusively\nto\nVNB.\nYou\nfurther\nacknowledge\nand\nagree\nthat\nduring\nthe\ncourse\nof\nyour\nperforming\nservices\nfor\nVNB,\nVNB\nemployees\nand/or customers may furnish, disclose or otherwise make available to you confidential and proprietary information and that VNB may provide you\nwith unique and specialized training. You also acknowledge that (a) such relationships, information and training have been, and will continue to be,\ndeveloped by VNB through the expenditure by VNB of substantial time, effort and money, (b) all such relationships, information and training are\nvaluable to VNB and (c) use of such relationships, information and training by you other than for VNB's benefit will cause substantial harm to VNB.\n2. Non-Disclosure of Confidential and Proprietary Information.\nVNB has developed and continues to develop, use and maintain confidential and proprietary information, which may include competitive\ninformation and trade secrets, concerning VNB's business, customers and employees, including, without limitation, the following: identity and other\ninformation related to present and prospective customers; business organization and structure; business and marketing plans and strategies; training\nprograms and materials; product information; personnel information including employees' capabilities, salaries, benefits, and any other terms of\nemployment; policies, standards and procedures; current and prospective vendors and contracts; and profit, loss and other financial information\n(collectively, the "Confidential Information"). You acknowledge that during your employment with VNB you will have direct and indirect access to,\nand knowledge of, the Confidential Information, and you agree to take all reasonable measures to protect the confidentiality of such Confidentia\nInformation. You agree to use the Confidential Information, both during and after your employment, for the sole benefit of VNB.\nYou agree and attest that any and all such Confidentia Information is, and shall remain, the sole property of VNB. You agree that you will hold such\nConfidential Information in the strictest confidence and that you will not (except as required in the course of your employment with VNB, as\nrequired by any court, supervisory authority or administrative agency, or as otherwise required by applicable law) disclose, either directly\nor\nindirectly, any Confidential Information to any other business, firm, entity or person, unless such information\nhas become a matter of public knowledge at the time of such disclosure. You further agree that you will not remove or retain any Confidentia\nInformation regardless of how it is maintained. You agree to return to VNB any and all copies of the Confidential Information that you have, or have\nhad, in your possession immediately upon termination of employment, whether voluntary or involuntary or upon any request by VNB. The terms of\nthis\nparagraph are in addition to, and not in lieu of, any legal or other contractual obligations that you may have, or believe you\nmay\nhave,\nrelating\nto\nthe protection of the Confidential Information or your employment. The terms of this paragraph shall survive indefinitely the termination of this\nAgreement and/or your employment with VNB.\n3. Non-Solicitation.\na. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not, directly or indirectly, on your own behalf or in the service of or on behalf of any other person or entity\nother than VNB, solicit, divert or appropriate, or attempt to solicit, divert or appropriate, any business from any VNB customers or prospective\ncustomers with whom/which you have had contact during the course of your employment or about whom/which you have obtained Confidential\nInformation during the course of your employment.\nb. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not (i) enter into, and will not participate in, any plan or arrangement to cause any employee of VNB to\nterminate his or her employment with VNB, or (ii) directly or indirectly solicit any VNB employee for employment in connection with any business\ninitiated by you or any other person, firm, company or corporation.\n4. Non-Competition.\nYou agree that both during the course of your employment, and for a period of three (3) months following the voluntary or involuntary termination\nof your employment, you will not accept employment or otherwise engage in any activity or work, that is in any way competitive with the business\nof VNB in which you are significantly involved at any time during your employment with VNB in a geographic area within a 30 mile radius of your\nthen current office location (or, if applicable, the office location at which you were primarily working immediately prior to the termination of your\nemployment with VNB) or within a 10 mile radius of any other VNB location. For purposes of this Agreement, you acknowledge and agree that\nVNB and its affiliates are engaged in the financial services business which includes, without limitation, commercial and retailing banking and\nlending, treasury management, private banking, trust, investment/brokerage services, wealth management and funds management. You also\nacknowledge\nthat\nVNB\nhas\nstrategic\nplans\nrelated\nto\noffering\nservices\nsuch\nas\nleasing,\nbrokerage,\ninternational\nand\nfactoring,\nand\nthat\nthose\nservices\nand businesses will be considered competitive with VNB under the terms of this Agreement to the extent that you are significantly involved in such\nservices or businesses during your employment with VNB.\n5. Enforcement of this Agreement.\nYou agree that the provisions outlined above are necessary and reasonable to protect the best interests of VNB, its customers, and its employees.\nFurther, you agree that in the event of your breach of any of the provisions of this Agreement, VNB would suffer substantial irreparable harm and\nthat monetary damages alone may not be sufficient to protect VNB adequately from such breach. In the event of a breach or threatened breach by\nyou of any of the provisions of this Agreement, in addition to such other remedies as VNB may have available at law, VNB shall be entitled\nto\nseek\nand obtain equitable relief, in the form of specific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable\nremedy which then may be available. The seeking or granting of an injunction or other equitable remedy shall not affect VNB'S right to seek and\nobtain damages or other equitable relief on account of any such\nPage 2 of 3\nactual or threatened breach. You agree to pay all reasonable costs and expenses incurred by VNB in enforcing the provisions of this Agreement,\nincluding VNB's attorneys' fees.\n6. Miscellaneous\na. You acknowledge that you will be an "at will" employee of VNB and that your employment may be terminated at any time, with or without cause,\nat\nthe\noption of you or VNB. You also acknowledge that neither this Agreement nor any employee handbook or other document you may receive\ncreates any contractual rights contrary to the foregoing and that no representative or agent of Employer other than an Authorized Representative of\nVNB through a written, signed document has any authority to enter into any agreement for employment for any specified time period or to make any\nother agreement contrary to the foregoing. For purposes of this Agreement, an "Authorized Representative of VNB" shall mean either the Chairman\nof the Board, Chairman of the Compensation Committee, Chief Executive Officer, or President of VNB; provided, however, you may not sign on\nbehalf of VNB even if you hold one of the identified positions with VNB.\nb. This Agreement contains the entire understanding between you and VNB and supersedes any prior written or oral agreements with VNB. This\nAgreement shall not be modified or waived except by written instrument signed by you and an Authorized Representative of VNB.\nC. In the event that any provision of this Agreement shall be declared unenforceable or invalid, the remaining provisions shall continue to be valid\nand enforceable.\nd. This Agreement shall inure to the benefit of and be enforceable by VNB and/or VNB's successors in interest, subsidiaries and affiliates.\ne. You acknowledge that this Agreement shall be governed and enforced in accordance with the laws of the Commonwealth of Virginia, without\nregard to conflicts of law principal. You agree that the state and federal courts located in the City of Charlottesville or the County of Albemarle shall\nbe the exclusive jurisdictions for the resolution of any disputes concerning this Agreement, and you agree to submit to the jurisdiction of those\ncourts.\nf. You acknowledge that you have had the opportunity to consult with an attorney prior to signing this Agreement.\nWith your signature, you attest to your understanding of the provisions outlined above and voluntarily agree to each of the terms of this Agreement.\n/s/ Glenn W. Rust\n(SEAL)\nSignature\nPrinted Name: Glenn W. Rust\nDate:\nMarch 2, 2017\nACCEPTED:\nVirginia National Bank\nBy\n/s/ Steven W. Blaine\nSteven W. Blaine\nChairman of VNB's Compensation Committee\nDate: March 2, 2017\nPage 3 of 3	EX-10.2 3 vnb30097818-ex102.htm NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nNon-Disclosure, Non-Solicitation and Non-Competition Agreement\nDate: March 2, 2017\nName: Glenn W. Rust\nVirginia National Bank and its affiliates, including Virginia National Bankshares Corporation and VNBTrust, N.A., also known as VNB Wealth\nManagement (together “VNB”), has provided you with the continued opportunity to be a key member of VNB’s executive management team. As a\ncondition of your employment opportunity with VNB, you must sign and return this Non-Disclosure, Non-Solicitation and Non-Competition\nAgreement (this “Agreement”).\nIn consideration of this employment opportunity, your compensation, including your base salary, potential incentive compensation, Management\nContinuity Agreement with VNB, benefits, training, personal and professional growth potential, the opportunity to play an integral role in the\ncontinued growth and development of a community-based financial services organization, and other good and valuable consideration, the adequacy\nand receipt of which are hereby acknowledged, with your signature you acknowledge and agree to the following:\n1. Acknowledgement of VNB’s Interest.\nYou acknowledge that VNB has invested substantial time, money and resources in the development and retention of its customers, accounts,\nbusiness and employees. You acknowledge and agree that any and all "goodwill" associated with any customer, account, business or employee of\nVNB belongs exclusively to VNB. You further acknowledge and agree that during the course of your performing services for VNB, VNB employees\nand/or customers may furnish, disclose or otherwise make available to you confidential and proprietary information and that VNB may provide you\nwith unique and specialized training. You also acknowledge that (a) such relationships, information and training have been, and will continue to be,\ndeveloped by VNB through the expenditure by VNB of substantial time, effort and money, (b) all such relationships, information and training are\nvaluable to VNB and (c) use of such relationships, information and training by you other than for VNB’s benefit will cause substantial harm to VNB.\n2. Non-Disclosure of Confidential and Proprietary Information.\nVNB has developed and continues to develop, use and maintain confidential and proprietary information, which may include competitive\ninformation and trade secrets, concerning VNB’s business, customers and employees, including, without limitation, the following: identity and other\ninformation related to present and prospective customers; business organization and structure; business and marketing plans and strategies; training\nprograms and materials; product information; personnel information including employees' capabilities, salaries, benefits, and any other terms of\nemployment; policies, standards and procedures; current and prospective vendors and contracts; and profit, loss and other financial information\n(collectively, the "Confidential Information"). You acknowledge that during your employment with VNB you will have direct and indirect access to,\nand knowledge of, the Confidential Information, and you agree to take all reasonable measures to protect the confidentiality of such Confidential\nInformation. You agree to use the Confidential Information, both during and after your employment, for the sole benefit of VNB.\nYou agree and attest that any and all such Confidential Information is, and shall remain, the sole property of VNB. You agree that you will hold such\nConfidential Information in the strictest confidence and that you will not (except as required in the course of your employment with VNB, as\nrequired by any court, supervisory authority or administrative agency, or as otherwise required by applicable law) disclose, either directly or\nindirectly, any Confidential Information to any other business, firm, entity or person, unless such information\nhas become a matter of public knowledge at the time of such disclosure. You further agree that you will not remove or retain any Confidential\nInformation regardless of how it is maintained. You agree to return to VNB any and all copies of the Confidential Information that you have, or have\nhad, in your possession immediately upon termination of employment, whether voluntary or involuntary or upon any request by VNB. The terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that you may have, or believe you may have, relating to\nthe protection of the Confidential Information or your employment. The terms of this paragraph shall survive indefinitely the termination of this\nAgreement and/or your employment with VNB.\n3. Non-Solicitation.\na. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not, directly or indirectly, on your own behalf or in the service of or on behalf of any other person or entity\nother than VNB, solicit, divert or appropriate, or attempt to solicit, divert or appropriate, any business from any VNB customers or prospective\ncustomers with whom/which you have had contact during the course of your employment or about whom/which you have obtained Confidential\nInformation during the course of your employment.\nb. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not (i) enter into, and will not participate in, any plan or arrangement to cause any employee of VNB to\nterminate his or her employment with VNB, or (ii) directly or indirectly solicit any VNB employee for employment in connection with any business\ninitiated by you or any other person, firm, company or corporation.\n4. Non-Competition.\nYou agree that both during the course of your employment, and for a period of three (3) months following the voluntary or involuntary termination\nof your employment, you will not accept employment or otherwise engage in any activity or work, that is in any way competitive with the business\nof VNB in which you are significantly involved at any time during your employment with VNB in a geographic area within a 30 mile radius of your\nthen current office location (or, if applicable, the office location at which you were primarily working immediately prior to the termination of your\nemployment with VNB) or within a 10 mile radius of any other VNB location. For purposes of this Agreement, you acknowledge and agree that\nVNB and its affiliates are engaged in the financial services business which includes, without limitation, commercial and retailing banking and\nlending, treasury management, private banking, trust, investment/brokerage services, wealth management and funds management. You also\nacknowledge that VNB has strategic plans related to offering services such as leasing, brokerage, international and factoring, and that those services\nand businesses will be considered competitive with VNB under the terms of this Agreement to the extent that you are significantly involved in such\nservices or businesses during your employment with VNB.\n5. Enforcement of this Agreement.\nYou agree that the provisions outlined above are necessary and reasonable to protect the best interests of VNB, its customers, and its employees.\nFurther, you agree that in the event of your breach of any of the provisions of this Agreement, VNB would suffer substantial irreparable harm and\nthat monetary damages alone may not be sufficient to protect VNB adequately from such breach. In the event of a breach or threatened breach by\nyou of any of the provisions of this Agreement, in addition to such other remedies as VNB may have available at law, VNB shall be entitled to seek\nand obtain equitable relief, in the form of specific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable\nremedy which then may be available. The seeking or granting of an injunction or other equitable remedy shall not affect VNB’s right to seek and\nobtain damages or other equitable relief on account of any such\nPage2of3\nactual or threatened breach. You agree to pay all reasonable costs and expenses incurred by VNB in enforcing the provisions of this Agreement,\nincluding VNB’s attorneys’ fees.\n6. Miscellaneous\na. You acknowledge that you will be an “at will” employee of VNB and that your employment may be terminated at any time, with or without cause,\nat the option of you or VNB. You also acknowledge that neither this Agreement nor any employee handbook or other document you may receive\ncreates any contractual rights contrary to the foregoing and that no representative or agent of Employer other than an Authorized Representative of\nVNB through a written, signed document has any authority to enter into any agreement for employment for any specified time period or to make any\nother agreement contrary to the foregoing. For purposes of this Agreement, an “Authorized Representative of VNB” shall mean either the Chairman\nof the Board, Chairman of the Compensation Committee, Chief Executive Officer, or President of VNB; provided, however, you may not sign on\nbehalf of VNB even if you hold one of the identified positions with VNB.\nb. This Agreement contains the entire understanding between you and VNB and supersedes any prior written or oral agreements with VNB. This\nAgreement shall not be modified or waived except by written instrument signed by you and an Authorized Representative of VNB.\nc. In the event that any provision of this Agreement shall be declared unenforceable or invalid, the remaining provisions shall continue to be valid\nand enforceable.\nd. This Agreement shall inure to the benefit of and be enforceable by VNB and/or VNB’s successors in interest, subsidiaries and affiliates.\ne. You acknowledge that this Agreement shall be governed and enforced in accordance with the laws of the Commonwealth of Virginia, without\nregard to conflicts of law principal. You agree that the state and federal courts located in the City of Charlottesville or the County of Albemarle shall\nbe the exclusive jurisdictions for the resolution of any disputes concerning this Agreement, and you agree to submit to the jurisdiction of those\ncourts.\nf. You acknowledge that you have had the opportunity to consult with an attorney prior to signing this Agreement.\nWith your signature, you attest to your understanding of the provisions outlined above and voluntarily agree to each of the terms of this Agreement.\n/s/ Glenn W. Rust\n(SEAL)\nSignature\nPrinted Name: Glenn W. Rust\nDate:\nMarch 2, 2017\nACCEPTED:\nVirginia National Bank\nBy /s/ Steven W. Blaine\nSteven W. Blaine\nChairman of VNB’s Compensation Committee\nDate: March 2, 2017\nPage3of3
719e1e9a02e3dcd2776e84261fc56900.pdf	effective_date jurisdiction party term	EX-10.3 4 dex103.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY & NON-DISCLOSURE AGREEMENT\nThis agreement (“Agreement”) is made as of the 1st\nday of September, 2008 (“Effective Date”) by and among THOMAS PROPERTIES\nGROUP, INC. and THOMAS PROPERTIES GROUP, L.P. (collectively, the “Company”), and PAUL S. RUTTER (the “Executive”).\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on the Effective Date.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive’s employment with the Company, in Company “Proprietary Information” as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive’s employment with the Company, Executive\ncreates or assists in the creation of any Company “Proprietary Information,” or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive’s duties which relate\nin any manner to Company’s business or development of services, Executive agrees that all such “Proprietary Information” and intellectual property\nshall be and remain the property of Company. In the event Executive’s employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such “Proprietary Information” and intellectual property (and any copies thereof), as well as any materials related\nto Company’s trade secrets or confidential information (and any copies thereof), which are within Executive’s custody or control.\n4. Executive agrees to disclose to Company all “Proprietary Information” and intellectual property developed during the term of his/her\nemployment, whether made solely or jointly with others, which relate to Company’s business, research, or development of products and services.\n5. During the term of Executive’s employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive’s own benefit or the benefit of any other person or entity (other than Company or its affiliate Thomas Properties Group, L.P.),\nany Company “Proprietary Information” or Company intellectual property. As used herein, the terms “Proprietary Information,” “intellectual\nproperty” and “trade secrets,” shall include, but not be limited to: (a) all information of any kind regarding Company’s business, research, marketing,\nsales, operations and products and plans for development of new business products and services; (b) all operational designs and techniques related to\nbusiness, marketing and financial information or data of any kind related to Company’s business and business opportunities; (c) all information of\nany kind regarding Company’s suppliers, vendors, consultants, agents and customers, including lists or compilations of any such persons or entities;\n(d) all information of any kind regarding Company’s officers, directors and shareholders (other than Executive), including their respective abilities,\nfunctions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other arrangement by\n1\nCompany with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which relate to the\nbusiness of Company, including but not limited to those concerning proprietary, trade secret or Company-private information, investment strategies,\ndevelopment plans, research and development data, and any other technical reports relating to Company’s business operations now existing or which\nmay be developed during the term of Executive’s employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, and in any event within five (5) days after the receipt of such notice.\n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive’s employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and\ncosts as set forth in the Employment Agreement.\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive’s most recent address on the records of the Company,\n2\nIf to the Company:\nc/o Thomas Properties Group, Inc.\n515 South Flower Street, Sixth Floor\nLos Angeles, CA 90071\nAttn: James A. Thomas, CEO\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\n3\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.\nExecutive\nThomas Properties Group, Inc.,\na Delaware corporation\n/s/ Paul S. Rutter\nBy: /s/ James A. Thomas\nPAUL S. RUTTER\nTitle: Chief Executive Officer\nThomas Properties Group, L.P.,\na Maryland limited partnership\nBy: Thomas Properties Group, Inc.\nIts\nGeneral Partner\nBy: /s/ James A. Thomas\nTitle: Chief Executive Officer\n4	EX-10.3 4 dex103.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY & NON-DISCL.OSURE AGREEMENT\nThis agreement (“Agreement”) is made as of the 1%*day of September, 2008 (“Effective Date”) by and among THOMAS PROPERTIES\nGROUP, INC. and THOMAS PROPERTIES GROUP, L.P. (collectively, the “Company”), and PAUL S. RUTTER (the “Executive”).\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on the Effective Date.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive’s employment with the Company, in Company “Proprietary Information” as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive’s employment with the Company, Executive\ncreates or assists in the creation of any Company “Proprietary Information,” or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive’s duties which relate\nin any manner to Company’s business or development of services, Executive agrees that all such “Proprietary Information” and intellectual property\nshall be and remain the property of Company. In the event Executive’s employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such “Proprietary Information” and intellectual property (and any copies thereof), as well as any materials related\nto Company’s trade secrets or confidential information (and any copies thereof), which are within Executive’s custody or control.\n4. Executive agrees to disclose to Company all “Proprietary Information” and intellectual property developed during the term of his/her\nemployment, whether made solely or jointly with others, which relate to Company’s business, research, or development of products and services.\n5. During the term of Executive’s employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive’s own benefit or the benefit of any other person or entity (other than Company or its affiliate Thomas Properties Group, L.P.),\nany Company “Proprietary Information” or Company intellectual property. As used herein, the terms “Proprietary Information,” “intellectual\nproperty” and “trade secrets,” shall include, but not be limited to: (a) all information of any kind regarding Company’s business, research, marketing,\nsales, operations and products and plans for development of new business products and services; (b) all operational designs and techniques related to\nbusiness, marketing and financial information or data of any kind related to Company’s business and business opportunities; (c) all information of\nany kind regarding Company’s suppliers, vendors, consultants, agents and customers, including lists or compilations of any such persons or entities;\n(d) all information of any kind regarding Company’s officers, directors and shareholders (other than Executive), including their respective abilities,\nfunctions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other arrangement by\n1\nCompany with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which relate to the\nbusiness of Company, including but not limited to those concerning proprietary, trade secret or Company-private information, investment strategies,\ndevelopment plans, research and development data, and any other technical reports relating to Company’s business operations now existing or which\nmay be developed during the term of Executive’s employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, and in any event within five (5) days after the receipt of such notice.\n \n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive’s employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and\ncosts as set forth in the Employment Agreement.\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive’s most recent address on the records of the Company,\n2\nIf to the Company:\nc/o Thomas Properties Group, Inc.\n515 South Flower Street, Sixth Floor\nLos Angeles, CA 90071\nAttn: James A. Thomas, CEO\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. Executive\n/s/ Paul S. Rutter\nPAUL S. RUTTER\nThomas Properties Group, Inc.,\na Delaware corporation\nBy: /s/ James A. Thomas\nTitle: Chief Executive Officer\nThomas Properties Group, L.P.,,\na Maryland limited partnership\nBy:  Thomas Properties Group, Inc.\nIts General Partner\nBy: /s/James A. Thomas\nTitle: Chief Executive Officer	EX-10.3 4 lex103.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY & NON-DISCLOSURE AGREEMENT\nThis agreement ("Agreement") is made as of the 1st day of September, 2008 ("Effective Date") by and among THOMAS PROPERTIES\nGROUP, INC. and THOMAS PROPERTIES GROUP, L.P. (collectively, the "Company"), and PAUL S. RUTTER (the "Executive").\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on the Effective Date.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive's employment with the Company, in Company "Proprietary Information" as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive's employment with the Company, Executive\ncreates or assists in the creation of any Company "Proprietary Information," or any other Company intellectua property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive's duties which relate\nin any manner to Company's business or development of services, Executive agrees that all such "Proprietary Information" and intellectual property\nshall be and remain the property of Company. In the event Executive's employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such "Proprietary Information" and intellectual property (and any copies thereof), as well as any materials related\nto Company's trade secrets or confidential information (and any copies thereof), which are within Executive's custody or control.\n4. Executive agrees to disclose to Company all "Proprietary Information" and intellectual property developed during the term of his/her\nemployment, whether made solely or jointly with others, which relate to Company's business, research, or development of products and services.\n5. During the term of Executive's employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive's own benefit or the benefit of any other person or entity (other than Company or its affiliate Thomas Properties Group, L.P.),\nany Company "Proprietary Information" or Company intellectual property. As used herein, the terms "Proprietary Information," "intellectual\nproperty" and "trade secrets," shall include, but not be limited to: (a) all information of any kind regarding Company's business, research, marketing,\nsales, operations and products and plans for development of new business products and services; (b) all operational designs and techniques related to\nbusiness, marketing and financial information or data of any kind related to Company's business and business opportunities; (c) all information of\nany\nkind\nregarding Company's suppliers, vendors, consultants, agents and customers, including lists or compilations of any such persons or entities;\n(d) all information of any kind regarding Company's officers, directors and shareholders (other than Executive), including their respective abilities,\nfunctions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other arrangement by\n1\nCompany with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which relate to the\nbusiness of Company, including but not limited to those concerning proprietary, trade secret or Company-private information, investment strategies,\ndevelopment plans, research and development data, and any other technical reports relating to Company's business operations now existing or which\nmay be developed during the term of Executive's employment with Company.\n6.\nExecutive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, and in any event within five (5) days after the receipt of such notice.\n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive's employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys' fees and\ncosts as set forth in the Employment Agreement.\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive's most recent address on the records of the Company,\n2\nIf to the Company:\nc/o Thomas Properties Group, Inc.\n515 South Flower Street, Sixth Floor\nLos Angeles, CA 90071\nAttn: James A. Thomas, CEO\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\n3\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.\nExecutive\nThomas Properties Group, Inc.,\na Delaware corporation\n/s/ Paul S. Rutter\nBy:\n/s/ James A. Thomas\nPAUL S. RUTTER\nTitle: Chief Executive Officer\nThomas Properties Group, L.P.,\na Maryland limited partnership\nBy:\nThomas Properties Group, Inc.\nIts\nGeneral Partner\nBy:\n/s/ James A. Thomas\nTitle: Chief Executive Officer\n4	EX-10.3 4 dex103.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY & NON-DISCLOSURE AGREEMENT\nThis agreement (“Agreement”) is made as of the 1st\nday of September, 2008 (“Effective Date”) by and among THOMAS PROPERTIES\nGROUP, INC. and THOMAS PROPERTIES GROUP, L.P. (collectively, the “Company”), and PAUL S. RUTTER (the “Executive”).\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on the Effective Date.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive’s employment with the Company, in Company “Proprietary Information” as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive’s employment with the Company, Executive\ncreates or assists in the creation of any Company “Proprietary Information,” or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive’s duties which relate\nin any manner to Company’s business or development of services, Executive agrees that all such “Proprietary Information” and intellectual property\nshall be and remain the property of Company. In the event Executive’s employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such “Proprietary Information” and intellectual property (and any copies thereof), as well as any materials related\nto Company’s trade secrets or confidential information (and any copies thereof), which are within Executive’s custody or control.\n4. Executive agrees to disclose to Company all “Proprietary Information” and intellectual property developed during the term of his/her\nemployment, whether made solely or jointly with others, which relate to Company’s business, research, or development of products and services.\n5. During the term of Executive’s employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive’s own benefit or the benefit of any other person or entity (other than Company or its affiliate Thomas Properties Group, L.P.),\nany Company “Proprietary Information” or Company intellectual property. As used herein, the terms “Proprietary Information,” “intellectual\nproperty” and “trade secrets,” shall include, but not be limited to: (a) all information of any kind regarding Company’s business, research, marketing,\nsales, operations and products and plans for development of new business products and services; (b) all operational designs and techniques related to\nbusiness, marketing and financial information or data of any kind related to Company’s business and business opportunities; (c) all information of\nany kind regarding Company’s suppliers, vendors, consultants, agents and customers, including lists or compilations of any such persons or entities;\n(d) all information of any kind regarding Company’s officers, directors and shareholders (other than Executive), including their respective abilities,\nfunctions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other arrangement by\n1\nCompany with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which relate to the\nbusiness of Company, including but not limited to those concerning proprietary, trade secret or Company-private information, investment strategies,\ndevelopment plans, research and development data, and any other technical reports relating to Company’s business operations now existing or which\nmay be developed during the term of Executive’s employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, and in any event within five (5) days after the receipt of such notice.\n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive’s employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and\ncosts as set forth in the Employment Agreement.\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive’s most recent address on the records of the Company,\n2\nIf to the Company:\nc/o Thomas Properties Group, Inc.\n515 South Flower Street, Sixth Floor\nLos Angeles, CA 90071\nAttn: James A. Thomas, CEO\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\n3\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.\nExecutive\nThomas Properties Group, Inc.,\na Delaware corporation\n/s/ Paul S. Rutter\nBy: /s/ James A. Thomas\nPAUL S. RUTTER\nTitle: Chief Executive Officer\nThomas Properties Group, L.P.,\na Maryland limited partnership\nBy: Thomas Properties Group, Inc.\nIts\nGeneral Partner\nBy: /s/ James A. Thomas\nTitle: Chief Executive Officer\n4
71eb79f23dae6063d5c334bf057e9ab4.pdf	effective_date jurisdiction party term	EX-99.D.6 10 y31044exv99wdw6.htm EX-99.D.6: NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nNON- DISCLOSURE & CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November,\n2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at\n725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E .K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109\n(“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue,\nRadford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).\nRecitals\nWHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter\ncollectively referred to as the “Business Purpose”);\nWHEREAS SHIRE has engaged L.E.K . to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;\nWHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW\nRIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing,\ngraphically, electronically or by visual inspection of the premises of the Disclosing Party, and\nWHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party\nonly to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized\nparties by the terms of this Agreement.\nNOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without\nlimitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed\nproducts, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of\nthe information disclosed, relating to NEW\nCONFIDENTIAL\nRIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and\nproprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various\nelements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be\nin the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public\ndomain or general information that the Receiving Party may thereafter acquire.\n(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.\n(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.\n(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the\nfact that the Parties are discussing and evaluating the Business Purpose.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and\nConfidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving\nParty or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies,\ndocuments or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;\n(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information (but in no event less than reasonable care);\n(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors\nand consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the\nDisclosing Party.\n4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.\n(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its\ndirectors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality\nCONFIDENTIAL\nPage2of7\nconsistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the\nBusiness Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and\n(ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries,\nindependent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party.\nThe Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.\n(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A\nhereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(c) L.E .K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B\nhereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on\nExhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.\n(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E .K. may be communicating with NEW\nRIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications,\nL.E .K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER\nemployees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.\n5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the\nReceiving Party is able to demonstrate by competent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the\nReceiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving\nParty’s written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\nCONFIDENTIAL\nPage3of7\n(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to\nConfidential Information acquired from the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that\n(i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and\n(ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to\nobtain confidential treatment for the information required to be disclosed; or\n(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made\nwithout the consent of the Disclosing Party.\n7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving\nParty’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of\nregulatory compliance and compliance with the terms and conditions of this Agreement.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate\nwith the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information\nand prevent its further unauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or\nCONFIDENTIAL\nPage4of7\nlicense under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at\nlaw or equity for such a breach.\n12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date\nunless extended by the written consent of the Parties.\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1881 Grove Ave\nRadford, VA 24141\nAttention: Legal Department\nFax No.: (540) 633-7939\nIf to SHIRE:\nShire Pharmaceuticals, Inc.\n725 Chesterbrook Boulevard\nWayne, PA 19087\nAttention: Legal Department\nFax No.: 484-595-8163\nCONFIDENTIAL\nPage5of7\nIf to L.E .K.:\nL.E .K. Consulting LLC\n28 State Street\n16th Floor\nBoston, MA 02109\nAttention: Mike Clabault\nFax No.: 617-951-9392\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a\nwritten agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the\nParties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and\n(b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC,\nShire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005,\nby and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the\nexecution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the\nParties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or\nunenforceable term or provision.\n16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the\nlaws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).\n17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of\nany other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any\nother breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective\nunless made in writing and signed by an authorized representative of the Party against whom waiver is sought.\n18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the\nright to permit the other Party to evaluate\nCONFIDENTIAL\nPage6of7\nthe Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal\nobligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\n20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public\ninformation of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from\npurchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party\nshall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed\nunder this Agreement.\n21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs,\nexecutors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under\nthis Agreement in whole or in part without the prior written consent of the other Party.\n22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this\nAgreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the\nother Party.\n23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both\nParties.\nIN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNEW RIVER PHARMACEUTICALS INC.\nL.E .K. CONSULTING LLC\nBy:\n- s- Randal J. Kirk\nBy:\n- s- Jon Piper\nName: Randal J. Kirk\nName: Jon Piper\nTitle: President & CEO\nTitle: Vice President\nSHIRE PHARMACEUTICALS, INC\nBy:\n- s- XXXXX\nName: Scott Applebaum\nTitle: Secretary\nCONFIDENTIAL\nPage7of7\nLEK Team Contacts\nL.E .K. Team\nName\nTitle\nEmail\nWork Phone\nMarc Kozin\nVice President\nm.kozin@lek.com\n617-951-9545\nJonathan Piper\nVice President\nj.piper@lek.com\n617-951-9627\nSteven Rosner\nVice President\ns.rosner@lek.com\n617-951-9556\nJonathan Chou\nManager\nj.chou@lek.com\n617-951-9666\nDavid Maier\nConsultant\nd.maier@lek.com\n617-951-9526\nBrian Sze\nAssociate Consultant\nb.sze@lek.com\n617-951-9586\nJonathan Rupp\nAssociate\nj.rupp@lek.com\n617-951-9662\nBeth Goldberg\nExec Assist to M. Kozin\nb.goldberg@lek.com\n617-951-9515\nEwa Hart\nExec Assist to J. Piper\ne.hart@lek.com\n617-951-9682\nErika Jenkins\nExec Assist to S. Rosner\ne.jenkins@lek.com\n617-951-9559\nAndrea McNaughton\nExec Assist to J. Chou\na.mcnaughton@lek.com\n617-951-9638\nL.E .K. Boston Main\n617-951-9500\nL.E .K. Boston Fax\n617-951-9392\nLEK Confidential\n11/30/2006\nPage 1\nExhibit A\nTo the Non-Disclosure & Confidentiality\nAgreement by and between\nShire Pharmaceuticals Inc\nL.E.K . Consulting LLC\nNew River Pharmaceuticals Inc\nwith the Effective Date of 28 November 2006\nShire Project Team\nMatthew Emmens\nAngus Russell\nMike Cola\nBarbara Deptula\nTatjana May\nScott Applebaum\nSimon Gibbins\nGwen Melincoff\nCraig Lewis\nDavid Baker\nSuzanne Hare\nRob Lutz\nJanice Hall\nCherise Kent\nJonathan Poole\nJay Glasscott\nFinbarr Obinyan\nChris Janssen\nLEK Team Contacts\nL.E .K. Team\nName\nTitle\nEmail\nWork Phone\nMarc Kozin\nJonathan Piper\nSteven Rosner\nJonathan Chou\nDavid Maier\nBrian Sze\nJonathan Rupp\nVice President\nVice President\nVice President\nManager\nConsultant\nAssociate Consultant\nAssociate\nm.kozin@lek.com\nj.piper@lek.com\ns.rosner@lek.com\nj.chou@lek.com\nd.maier@.lek.com\nb.sze@lek.com\nj.rupp@lek.com\n617-951-9545\n617-951-9627\n617-951-9556\n617-951-9666\n617-951-9526\n617-951-9586\n617-951-9662\nBeth Goldberg\nEwa Hart\nErika Jenkins\nAndrea McNaughton\nExec Assist to M. Kozin\nExec Assist to J. Piper\nExec Assist to S. Rosner\nExec Assist to J. Chou\nb.goldberg@lek.com\ne.hart@lek.com\ne.jenkins@lek.com\na.mcnaughton@lek.com\n617-951-9515\n617-951-9682\n617-951-9559\n617-951-9638\nL.E .K. Boston Main\nL.E .K. Boston Fax\n617-951-9500\n617-951-9392\nLEK Confidential\n12/6/2006\nPage 1\nNon-Disclosure & Confidentiality Agreement among Shire, L.E.K . and New River dated November 28, 2006.\nExhibit C\nNEW RIVER REPRESENTATIVES\nName\nTitle\nEmail\nWork Phone\nRandal J. Kirk\nChairman, President\nrj.kirk@nrpharma.com\n540.633 .7978\nand Chief Executive\nOfficer\nKrish S. Krishnan\nChief Operating\nkrish.krishnan@nrpharma.com\n540.633 .7978\nOfficer, Chief\nFinancial Officer\nand Secretary\nSuma M. Krishnan\nVice President,\nskrishnan@nrpharma.com\n540.633 .7978\nProduct Development\nCliff Herndon\nVice President,\ncliff.herndon@thirdsecurity.com\n540.633 .7922\nFinance and\nController\nLegal Department personnel at Third Security, LLC\nMarcus E. Smith\nSenior Managing\nmarcus.smith@thirdsecurity.com\n540.633 .7971\nDirector and\nGeneral Counsel\nTad Fisher\nManaging Director\ntad.fisher@thirdsecurity.com\n540.633 .7951\nand Associate\nGeneral Counsel\nReade Williams\nAssociate General\nreade.williams@thirdsecurity.com\n540.633 .7925\nCounsel\nMilan B. Tolley\nManager, Paralegal\nmilan.tolley@thirdsecurity.com\n540.633 .7932\nServices	EX-99.D.6 10 y31044exv99wdw6.htm EX-99.D.6: NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nNON- DISCLOSURE & CONFIDENTIALITY AGREEMENT\nTwais Non-Discrosure & ConriDENTIALITY AGREEMENT (hereinafter this “Agreement™”) is made and entered into as of the 28th day of November,\n2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at\n725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109\n(“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue,\nRadford, Virginia 24141 (“NEW RIVER?”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties™).\nRecitals\nWHEREAs the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter\ncollectively referred to as the “Business Purpose”);\nWhHhEereas SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;\nWHEREAs the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW\nRIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing,\ngraphically, electronically or by visual inspection of the premises of the Disclosing Party, and\nWHEREAs the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party\nonly to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized\nparties by the terms of this Agreement.\nNow, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without\nlimitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed\nproducts, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of\nthe information disclosed, relating to NEW\nCONFIDENTIAL\nRIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and\nproprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various\nelements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be\nin the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public\ndomain or general information that the Receiving Party may thereafter acquire.\n(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.\n(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.\n(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the\nfact that the Parties are discussing and evaluating the Business Purpose.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and\nConfidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving\nParty or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies,\ndocuments or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;\n(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information (but in no event less than reasonable care);\n(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors\nand consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the\nDisclosing Party.\n4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.\n(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its\ndirectors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality\nCONFIDENTIAL\nPage 2 of 7\nconsistent with this Agreement, who have a bona fide need to know (“Representatives™), but only to the extent necessary to carry out the\nBusiness Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and\n(ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries,\nindependent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party.\nThe Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.\n(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A\nhereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B\nhereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on\nExhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.\n(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW\nRIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications,\nL.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER\nemployees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.\n5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the\nReceiving Party is able to demonstrate by competent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the\nReceiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving\nParty’s written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\nCONFIDENTIAL\nPage 3 of 7\n(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to\nConfidential Information acquired from the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that\n(i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and\n(ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to\nobtain confidential treatment for the information required to be disclosed; or\n(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made\nwithout the consent of the Disclosing Party.\n7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving\nParty’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of\nregulatory compliance and compliance with the terms and conditions of this Agreement.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate\nwith the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information\nand prevent its further unauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or\nCONFIDENTIAL\nPage 4 of 7\nlicense under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at\nlaw or equity for such a breach.\n \n12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date\nunless extended by the written consent of the Parties.\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.\n \nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1881 Grove Ave\nRadford, VA 24141\nAttention: Legal Department\nFax No.: (540) 633-7939\nIf to SHIRE:\nShire Pharmaceuticals, Inc.\n725 Chesterbrook Boulevard\nWayne, PA 19087\nAttention: Legal Department\nFax No.: 484-595-8163\nCONFIDENTIAL\nPage 5 of 7\nIf to LEK.:\nL.E.K. Consulting LLC\n28 State Street\n16th Floor\nBoston, MA 02109\nAttention: Mike Clabault\nFax No.: 617-951-9392\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a\nwritten agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the\nParties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and\n(b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC,\nShire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005,\nby and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the\nexecution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the\nParties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or\nunenforceable term or provision.\n16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the\nlaws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).\n17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of\nany other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any\nother breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective\nunless made in writing and signed by an authorized representative of the Party against whom waiver is sought.\n18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the\nright to permit the other Party to evaluate\nCONFIDENTIAL\nPage 6 of 7\nthe Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal\nobligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\n20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public\ninformation of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from\npurchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party\nshall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed\nunder this Agreement.\n21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs,\nexecutors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under\nthis Agreement in whole or in part without the prior written consent of the other Party.\n22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this\nAgreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the\nother Party.\n23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both\nParties.\nIn WiTnEss WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC\nBy: |, _-s- Randal J. Kirk By: |4 _-s- Jon Piper\nName: Randal J. Kirk Name: Jon Piper\nTitle: President & CEO Title: Vice President\nSHIRE PHARMACEUTICALS, INC\nBy: |- XXXXX\nName: Scott Applebaum\nTitle: Secretary\nCONFIDENTIAL\nPage 7 of 7\nL.E.K. Team\nName\nMarc Kozin\nJonathan Piper\nSteven Rosner\nJonathan Chou\nDavid Maier\nBrian Sze\nJonathan Rupp\nBeth Goldberg\nEwa Hart\nErika Jenkins\nAndrea McNaughton\nL.E.K. Boston Main\nL.E.K. Boston Fax\nLEK Confidential\nLEK Team Contacts Title\nVice President\nVice President\nVice President\nManager\nConsultant\nAssociate Consultant\nAssociate\nExec Assist to M. Kozin\nExec Assist to J. Piper\nExec Assist to S. Rosner\nExec Assist to J. Chou\n11/30/2006 Email\nm.kozin@lek.com\nj.piper@lek.com\ns.rosner@lek.com\nj.chou@lek.com\nd.maier@lek.com\nb.sze@lek.com\nj.rupp@lek.com\n \n \n \n \n \n \n \nb.goldberg@lek.com\ne.hart@lek.com\ne.jenkins@lek.com\na.mcnaughton@Jlek.com\n \n \n \n \nWork Phone\n617-951-9545\n617-951-9627\n617-951-9556\n617-951-9666\n617-951-9526\n617-951-9586\n617-951-9662\n617-951-9515\n617-951-9682\n617-951-9559\n617-951-9638\n617-951-9500\n617-951-9392\nPage 1\nShire Project Team\nMatthew Emmens\nAngus Russell\nMike Cola\nBarbara Deptula\nTatjana May\nScott Applebaum\nSimon Gibbins\nGwen Melincoff\nCraig Lewis\nDavid Baker\nSuzanne Hare\nRob Lutz\nJanice Hall\nCherise Kent\nJonathan Poole\nJay Glasscott\nFinbarr Obinyan\nChris Janssen\nExhibit A\nTo the Non-Disclosure & Confidentiality\nAgreement by and between\nShire Pharmaceuticals Inc\nL.E.K. Consulting LLC\nNew River Pharmaceuticals Inc\nwith the Effective Date of 28 November 2006\nL.E.K. Team\nName\nMarc Kozin\nJonathan Piper\nSteven Rosner\nJonathan Chou\nDavid Maier\nBrian Sze\nJonathan Rupp\nBeth Goldberg\nEwa Hart\nErika Jenkins\nAndrea McNaughton\nL.E.K. Boston Main\nL.E.K. Boston Fax\nLEK Confidential\nLEK Team Contacts Title\nVice President\nVice President\nVice President\nManager\nConsultant\nAssociate Consultant\nAssociate\nExec Assist to M. Kozin\nExec Assist to J. Piper\nExec Assist to S. Rosner\nExec Assist to J. Chou\n12/6/2006\nEmail\nm.kozin@lek.com\nj:piper@lek.com\ns.rosner@lek.com\nj.chou@lek.com\nd.maier@.lek.com\nb.sze@lek.com\nj-rupp@lek.com\nb.goldberg@lek.com\ne.hart@lek.com\ne.jenkins@lek.com\na.mcnaughton@lek.com\nWork Phone\n617-951-9545 617-951-9627\n617-951-9556\n617-951-9666\n617-951-9526\n617-951-9586\n617-951-9662\n617-951-9515\n617-951-9682\n617-951-9559\n617-951-9638\n617-951-9500\n617-951-9392\nPage 1\fNon-Disclosure & Confidentiality Agreement among Shire, L.E.K. and New River dated November 28, 2006. Name\nRandal J. Kirk\nKrish S. Krishnan\nSuma M. Krishnan\nCliff Herndon\nMarcus E. Smith\nTad Fisher\nReade Williams\nMilan B. Tolley\nNEW RIVER REPRESENTATIVES Title\nChairman, President\nand Chief Executive\nOfficer\nChief Operating\nOfficer, Chief\nFinancial Officer\nand Secretary\nVice President,\nProduct Development Vice President,\nFinance and\nController\nSenior Managing\nDirector and\nGeneral Counsel\nManaging Director\nand Associate\nGeneral Counsel\nAssociate General\nCounsel\nManager, Paralegal\nServices\nEmail\n1j.kirk@nrpharma.com\nkrish.krishnan@nrpharma.com\nskrishnan@nrpharma.com\ncliff. herndon@thirdsecurity.com\nLegal Department personnel at Third Security, LLC marcus.smith@thirdsecurity.com\n \ntad.fisher@thirdsecurity.com\n \nreade.williams@thirdsecurity.com\n \nmilan.tolley@thirdsecurity.com\nExhibit C\nWork Phone\n540.633.7978 540.633.7978\n540.633.7978\n540.633.7922\n540.633.7971\n540.633.7951\n540.633.7925\n540.633.7932	EX-99.D.6 10 y31044exv99wdw6.htm EX-99.D.6: NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nON-DISCLOSURE & CONFIDENTIALITY AGREEMENT\nTHIs NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this "Agreement") is made and entered into as of the 28th day of November,\n2006 (hereinafter "Effective Date"), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at\n725 Chesterbrook Boulevard, Wayne, PA 19087 ("SHIRE"), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109\n("L.E.K."), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue,\nRadford, Virginia 24141 ("NEW RIVER") (each individually hereinafter referred to as a "Party" and collectively referred to as "Parties").\nRecitals\nWHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions related to "Project Night" (hereinafter\ncollectively referred to as the "Business Purpose");\nWHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;\nWHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW\nRIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing,\ngraphically, electronically or by visual inspection of the premises of the Disclosing Party, and\nWHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party\nonly to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized\nparties by the terms of this Agreement.\nNow, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions For purposes of this Agreement, the terms below shall have the following meanings:\n(a) "Confidential Information" shall mean commercial, corporate, scientific, regulatory and technical information, including, without\nlimitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed\nproducts, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions\nof\nthe information disclosed, relating to NEW\nCONFIDENTIAL\nRIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and\nproprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various\nelements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be\nin the Receiving Party's possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public\ndomain or general information that the Receiving Party may thereafter acquire.\n(b) "Disclosing Party" shall mean the Party disclosing Confidential Information.\n(c) "Receiving Party" Shall mean the Party receiving disclosure of the Confidential Information.\n(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the\nfact that the Parties are discussing and evaluating the Business Purpose.\n2. Applicability.. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and\nConfidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving\nParty or any of Receiving Party's Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies,\ndocuments or records contain or otherwise reflect or are generated from the Disclosing Party's Confidential Information.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party's Confidentia Information in strict confidence in accordance with this Agreement;\n(b) to exercise at least the same care in protecting the other Party's Confidential Information from disclosure as the Party uses with regard to\nits own Confidentia Information (but in no event less than reasonable care);\n(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors\nand consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the\nDisclosing Party.\n4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.\n(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party's Confidentia Information to its\ndirectors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality\nCONFIDENTIAL\nPage 2 of 7\nconsistent with this Agreement, who have a bona fide need to know ("Representatives"), but only to the extent necessary to carry out the\nBusiness Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party's other permitted Representatives, and\n(ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries,\nindependent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party.\nThe Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.\n(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A\nhereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit\nB\nhereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on\nExhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.\n(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW\nRIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications,\nL.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER\nemployees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.\n5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the\nReceiving Party is able to demonstrate by competent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the\nReceiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving\nParty's written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\nCONFIDENTIAL\nPage 3 of 7\n(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to\nConfidential Information acquired from the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that\n(i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and\n(ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to\nobtain confidential treatment for the information required to be disclosed; or\n(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party's\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party's consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made\nwithout the consent of the Disclosing Party.\n7.\nReturn of Confidential Information. Upon the Disclosing Party's request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party's Confidential Information and all copies thereof; provided, however, Receiving\nParty's legal department or outside legal counsel may maintain a single copy of Disclosing Party's Confidential Information for purposes of\nregulatory compliance and compliance with the terms and conditions of this Agreement.\n8. Notification The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party's Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate\nwith the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information\nand prevent its further unauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party's Confidential Information except for the Business Purpose.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or\nCONFIDENTIAL\nPage 4 of 7\nlicense under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party's Confidential Information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available\nat\nlaw or equity for such a breach.\n12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date\nunless extended by the written consent of the Parties.\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1881 Grove Ave\nRadford, VA 24141\nAttention: Legal Department\nFax No.: (540) 633-7939\nIf to SHIRE:\nShire Pharmaceuticals, Inc.\n725 Chesterbrook Boulevard\nWayne, PA 19087\nAttention: Legal Department\nFax No.: 484-595-8163\nCONFIDENTIAL\nPage 5 of 7\nIf to L.E.K.:\nL.E.K. Consulting LLC\n28 State Street\n16th Floor\nBoston, MA 02109\nAttention: Mike Clabault\nFax No.: 617-951-9392\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by\na\nwritten agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the\nParties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and\n(b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC,\nShire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005,\nby and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the\nexecution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the\nParties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or\nunenforceable term or provision.\n16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the\nlaws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).\n17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver\nof\nany other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any\nother breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective\nunless made in writing and signed by an authorized representative of the Party against whom waiver is sought.\n18. Binding Authority.. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the\nright to permit the other Party to evaluate\nCONFIDENTIAL\nPage 6 of 7\nthe Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal\nobligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\n20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party's Confidential Information may represent material, non-public\ninformation of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from\npurchasing or selling the Disclosing Party's securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party\nshall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed\nunder this Agreement.\n21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs,\nexecutors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under\nthis Agreement in whole or in part without the prior written consent of the other Party.\n22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this\nAgreement, or (b) use the other Party's names or trademarks for publicity or advertising purposes, except with the prior written consent of the\nother Party.\n23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both\nParties.\nIN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNEW RIVER PHARMACEUTICALS INC.\nL.E.K. CONSULTING LLC\nBy:\nRandal J. Kirk\nBy:\nJon Piper\nName: Randal J. Kirk\nName: Jon Piper\nTitle: President & CEO\nTitle: Vice President\nSHIRE PHARMACEUTICALS INC\nBy: XXXXX\nName: Scott Applebaum\nTitle: Secretary\nCONFIDENTIAL\nPage 7 of 7\nLEK Team Contacts\nL.E.K. Team\nName\nTitle\nEmail\nWork Phone\nMarc Kozin\nVice President\nm.kozin@lek.com\n617-951-9545\nJonathan Piper\nVice President\nj.piper@lek.com\n617-951-9627\nSteven Rosner\nVice President\ns.rosner@lek.com\n617-951-9556\nJonathan Chou\nManager\nj.chou@lek.com\n617-951-9666\nDavid Maier\nConsultant\nd.maier@lek.com\n617-951-9526\nBrian Sze\nAssociate Consultant\nb.sze@lek.com\n617-951-9586\nJonathan Rupp\nAssociate\nj.rupp@lek.com\n617-951-9662\nBeth Goldberg\nExec Assist to M. Kozin\nb.goldberg@lek.com\n617-951-9515\nEwa Hart\nExec Assist to J. Piper\ne.hart@lek.com\n617-951-9682\nErika Jenkins\nExec Assist to S. Rosner\ne.jenkins@lek.com\n617-951-9559\nAndrea McNaughton\nExec Assist to J. Chou\na.mcnaughton@lek.com\n617-951-9638\nL.E.K. Boston Main\n617-951-9500\nL.E.K. Boston Fax\n617-951-9392\nLEK Confidential\n11/30/2006\nPage 1\nExhibit A\nTo the Non-Disclosure & Confidentiality\nAgreement by and between\nShire Pharmaceuticals Inc\nL.E.K. Consulting LLC\nNew River Pharmaceuticals Inc\nwith the Effective Date of 28 November 2006\nShire Project Team\nMatthew Emmens\nAngus Russell\nMike Cola\nBarbara Deptula\nTatjana May\nScott Applebaum\nSimon Gibbins\nGwen Melincoff\nCraig Lewis\nDavid Baker\nSuzanne Hare\nRob Lutz\nJanice Hall\nCherise Kent\nJonathan Poole\nJay Glasscott\nFinbarr Obinyan\nChris Janssen\nLEK Team Contacts\nL.E.K. Team\nName\nTitle\nEmail\nWork Phone\nMarc Kozin\nVice President\nm.kozin@lek.com\n617-951-9545\nJonathan Piper\nVice President\nj.piper@lek.com\n617-951-9627\nSteven Rosner\nVice President\ns.rosner@lek.com\n617-951-9556\nJonathan Chou\nManager\nj.chou@lek.com\n617-951-9666\nDavid Maier\nConsultant\nd.maier@.lek.com\n617-951-9526\nBrian Sze\nAssociate Consultant\nb.sze@lek.com\n617-951-9586\nJonathan Rupp\nAssociate\nj.rupp@lek.com\n617-951-9662\nBeth Goldberg\nExec Assist to M. Kozin\nb.goldberg@lek.com\n617-951-9515\nEwa Hart\nExec Assist to J. Piper\ne.hart@lek.com\n617-951-9682\nErika Jenkins\nExec Assist to S. Rosner\ne.jenkins@lek.com\n617-951-9559\nAndrea McNaughton\nExec Assist to J. Chou\na.mcnaughton@lek.com\n617-951-9638\nL.E.K. Boston Main\n617-951-9500\nL.E.K. Boston Fax\n617-951-9392\nLEK Confidential\n12/6/2006\nPage 1\nNon-Disclosure & Confidentiality Agreement among Shire, L.E.K. and New River dated November 28, 2006.\nExhibit C\nNEW RIVER REPRESENTATIVES\nName\nTitle\nEmail\nWork Phone\nRandal J. Kirk\nChairman, President\nrj.kirk@nrpharma.com\n540.633.7978\nand Chief Executive\nOfficer\nKrish S. Krishnan\nChief Operating\nkrish.krishnan@nrpharma.com\n540.633.7978\nOfficer, Chief\nFinancial Officer\nand Secretary\nSuma M. Krishnan\nVice President,\nskrishnan@nrpharma.com\n540.633.7978\nProduct Development\nCliff Herndon\nVice President,\ncliff.herndon@thirdsecurity.com\n540.633.7922\nFinance and\nController\nLegal Department personnel at Third Security, LLC\nMarcus E. Smith\nSenior Managing\nmarcus.smith@thirdsecurity.com\n540.633.7971\nDirector and\nGeneral Counsel\nTad Fisher\nManaging Director\ntad.fisher@thirdsecurity.com\n540.633.7951\nand Associate\nGeneral Counsel\nReade Williams\nAssociate General\nreade.williams@thirdsecurity.com\n540.633.7925\nCounsel\nMilan B. Tolley\nManager, Paralegal\nmilan.tolley.@thirdsecurity.com\n540.633.7932\nServices	EX-99.D.6 10 y31044exv99wdw6.htm EX-99.D.6: NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nNON- DISCLOSURE & CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November,\n2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at\n725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E .K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109\n(“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue,\nRadford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).\nRecitals\nWHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter\ncollectively referred to as the “Business Purpose”);\nWHEREAS SHIRE has engaged L.E.K . to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;\nWHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW\nRIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing,\ngraphically, electronically or by visual inspection of the premises of the Disclosing Party, and\nWHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party\nonly to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized\nparties by the terms of this Agreement.\nNOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without\nlimitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed\nproducts, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of\nthe information disclosed, relating to NEW\nCONFIDENTIAL\nRIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and\nproprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various\nelements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be\nin the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public\ndomain or general information that the Receiving Party may thereafter acquire.\n(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.\n(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.\n(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the\nfact that the Parties are discussing and evaluating the Business Purpose.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and\nConfidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving\nParty or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies,\ndocuments or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;\n(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information (but in no event less than reasonable care);\n(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors\nand consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the\nDisclosing Party.\n4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.\n(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its\ndirectors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality\nCONFIDENTIAL\nPage2of7\nconsistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the\nBusiness Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and\n(ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries,\nindependent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party.\nThe Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.\n(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A\nhereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(c) L.E .K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B\nhereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on\nExhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.\n(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E .K. may be communicating with NEW\nRIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications,\nL.E .K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER\nemployees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.\n5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the\nReceiving Party is able to demonstrate by competent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the\nReceiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving\nParty’s written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\nCONFIDENTIAL\nPage3of7\n(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to\nConfidential Information acquired from the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that\n(i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and\n(ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to\nobtain confidential treatment for the information required to be disclosed; or\n(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made\nwithout the consent of the Disclosing Party.\n7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving\nParty’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of\nregulatory compliance and compliance with the terms and conditions of this Agreement.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate\nwith the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information\nand prevent its further unauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or\nCONFIDENTIAL\nPage4of7\nlicense under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at\nlaw or equity for such a breach.\n12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date\nunless extended by the written consent of the Parties.\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1881 Grove Ave\nRadford, VA 24141\nAttention: Legal Department\nFax No.: (540) 633-7939\nIf to SHIRE:\nShire Pharmaceuticals, Inc.\n725 Chesterbrook Boulevard\nWayne, PA 19087\nAttention: Legal Department\nFax No.: 484-595-8163\nCONFIDENTIAL\nPage5of7\nIf to L.E .K.:\nL.E .K. Consulting LLC\n28 State Street\n16th Floor\nBoston, MA 02109\nAttention: Mike Clabault\nFax No.: 617-951-9392\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a\nwritten agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the\nParties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and\n(b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC,\nShire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005,\nby and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the\nexecution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the\nParties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or\nunenforceable term or provision.\n16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the\nlaws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).\n17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of\nany other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any\nother breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective\nunless made in writing and signed by an authorized representative of the Party against whom waiver is sought.\n18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the\nright to permit the other Party to evaluate\nCONFIDENTIAL\nPage6of7\nthe Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal\nobligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\n20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public\ninformation of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from\npurchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party\nshall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed\nunder this Agreement.\n21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs,\nexecutors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under\nthis Agreement in whole or in part without the prior written consent of the other Party.\n22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this\nAgreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the\nother Party.\n23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both\nParties.\nIN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNEW RIVER PHARMACEUTICALS INC.\nL.E .K. CONSULTING LLC\nBy:\n- s- Randal J. Kirk\nBy:\n- s- Jon Piper\nName: Randal J. Kirk\nName: Jon Piper\nTitle: President & CEO\nTitle: Vice President\nSHIRE PHARMACEUTICALS, INC\nBy:\n- s- XXXXX\nName: Scott Applebaum\nTitle: Secretary\nCONFIDENTIAL\nPage7of7\nLEK Team Contacts\nL.E .K. Team\nName\nTitle\nEmail\nWork Phone\nMarc Kozin\nVice President\nm.kozin@lek.com\n617-951-9545\nJonathan Piper\nVice President\nj.piper@lek.com\n617-951-9627\nSteven Rosner\nVice President\ns.rosner@lek.com\n617-951-9556\nJonathan Chou\nManager\nj.chou@lek.com\n617-951-9666\nDavid Maier\nConsultant\nd.maier@lek.com\n617-951-9526\nBrian Sze\nAssociate Consultant\nb.sze@lek.com\n617-951-9586\nJonathan Rupp\nAssociate\nj.rupp@lek.com\n617-951-9662\nBeth Goldberg\nExec Assist to M. Kozin\nb.goldberg@lek.com\n617-951-9515\nEwa Hart\nExec Assist to J. Piper\ne.hart@lek.com\n617-951-9682\nErika Jenkins\nExec Assist to S. Rosner\ne.jenkins@lek.com\n617-951-9559\nAndrea McNaughton\nExec Assist to J. Chou\na.mcnaughton@lek.com\n617-951-9638\nL.E .K. Boston Main\n617-951-9500\nL.E .K. Boston Fax\n617-951-9392\nLEK Confidential\n11/30/2006\nPage 1\nExhibit A\nTo the Non-Disclosure & Confidentiality\nAgreement by and between\nShire Pharmaceuticals Inc\nL.E.K . Consulting LLC\nNew River Pharmaceuticals Inc\nwith the Effective Date of 28 November 2006\nShire Project Team\nMatthew Emmens\nAngus Russell\nMike Cola\nBarbara Deptula\nTatjana May\nScott Applebaum\nSimon Gibbins\nGwen Melincoff\nCraig Lewis\nDavid Baker\nSuzanne Hare\nRob Lutz\nJanice Hall\nCherise Kent\nJonathan Poole\nJay Glasscott\nFinbarr Obinyan\nChris Janssen\nLEK Team Contacts\nL.E .K. Team\nName\nTitle\nEmail\nWork Phone\nMarc Kozin\nJonathan Piper\nSteven Rosner\nJonathan Chou\nDavid Maier\nBrian Sze\nJonathan Rupp\nVice President\nVice President\nVice President\nManager\nConsultant\nAssociate Consultant\nAssociate\nm.kozin@lek.com\nj.piper@lek.com\ns.rosner@lek.com\nj.chou@lek.com\nd.maier@.lek.com\nb.sze@lek.com\nj.rupp@lek.com\n617-951-9545\n617-951-9627\n617-951-9556\n617-951-9666\n617-951-9526\n617-951-9586\n617-951-9662\nBeth Goldberg\nEwa Hart\nErika Jenkins\nAndrea McNaughton\nExec Assist to M. Kozin\nExec Assist to J. Piper\nExec Assist to S. Rosner\nExec Assist to J. Chou\nb.goldberg@lek.com\ne.hart@lek.com\ne.jenkins@lek.com\na.mcnaughton@lek.com\n617-951-9515\n617-951-9682\n617-951-9559\n617-951-9638\nL.E .K. Boston Main\nL.E .K. Boston Fax\n617-951-9500\n617-951-9392\nLEK Confidential\n12/6/2006\nPage 1\nNon-Disclosure & Confidentiality Agreement among Shire, L.E.K . and New River dated November 28, 2006.\nExhibit C\nNEW RIVER REPRESENTATIVES\nName\nTitle\nEmail\nWork Phone\nRandal J. Kirk\nChairman, President\nrj.kirk@nrpharma.com\n540.633 .7978\nand Chief Executive\nOfficer\nKrish S. Krishnan\nChief Operating\nkrish.krishnan@nrpharma.com\n540.633 .7978\nOfficer, Chief\nFinancial Officer\nand Secretary\nSuma M. Krishnan\nVice President,\nskrishnan@nrpharma.com\n540.633 .7978\nProduct Development\nCliff Herndon\nVice President,\ncliff.herndon@thirdsecurity.com\n540.633 .7922\nFinance and\nController\nLegal Department personnel at Third Security, LLC\nMarcus E. Smith\nSenior Managing\nmarcus.smith@thirdsecurity.com\n540.633 .7971\nDirector and\nGeneral Counsel\nTad Fisher\nManaging Director\ntad.fisher@thirdsecurity.com\n540.633 .7951\nand Associate\nGeneral Counsel\nReade Williams\nAssociate General\nreade.williams@thirdsecurity.com\n540.633 .7925\nCounsel\nMilan B. Tolley\nManager, Paralegal\nmilan.tolley@thirdsecurity.com\n540.633 .7932\nServices
71f9594b698dfefb2c9021c092fe0347.pdf	effective_date jurisdiction party term	EX-99.(D).(2) 10 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNovember 22, 2006\nPeter Brent\nMDS Inc.\n100 International Boulevard\nToronto, Ontario Canada M9W 6J6\nDear Peter:\nIn connection with your consideration of a possible transaction (the “Transaction”) with Molecular Devices Corporation (the “Company”), UBS\nSecurities LLC (“UBS”) as advisor to the Company, is prepared, subject to the terms and conditions of this agreement, to make available to you\ncertain information regarding the Company, its subsidiaries and its affiliates. This information (whether written or oral) furnished to you and your\nRepresentatives (as defined below), whether prior to, on, or following the date hereof, together with analyses, compilations, forecasts, studies, or\nother documents or records prepared by you or your Representatives which contain, are based on, or otherwise reflect or are generated in whole or in\npart from such information, including that stored on any computer, word processor or other similar device, shall be referred to, collectively, as the\n“Evaluation Material”.\nYou hereby agree as follows:\n(1) You shall use the Evaluation Material solely for the purpose of evaluating the Transaction and you shall keep the Evaluation Material\nconfidential, except that you may disclose the Evaluation Material or portions thereof to those of your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys, and accountants), and your potential sources of financing (if any)\nfor the Transaction (collectively, the “Representatives”) (a) who need to know such information for the purpose of evaluating the Transaction,\n(b) who are informed by you of the confidential nature of the Evaluation Material, and (c) who agree to be bound by the terms of this\nagreement as if they were parties hereto. You shall be responsible for any breach of this agreement by your Representatives. In the event that\nyou or any of your Representatives are requested or required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand, or similar process) to disclose any of the Evaluation Material, you shall provide the Company and UBS with prompt prior written\nnotice of such requirement, you shall furnish only that portion of the Evaluation Material which you are advised by opinion of counsel is\nlegally required, you shall exercise your best efforts to obtain reliable assurance that confidential treatment will be accorded such Evaluation\nMaterial, and you shall cooperate fully with the Company in any attempt by the Company to obtain any protective orders or other appropriate\nremedies in connection therewith.\n(2) If you determine not to proceed with the Transaction, you will promptly inform UBS, as representative of the Company, of that decision and,\nin that case or at any time upon the request of UBS or the Company, you and your Representatives shall promptly either (i) destroy all copies\nof any written Evaluation Material in your or their possession or under your or their custody or control (including that stored in any computer,\nword processor, or similar device) and confirm such destruction to the Company and UBS, as representative of the Company, in writing or\n(ii) return to the Company or UBS, as representative of the Company, all copies of the Evaluation Material furnished to you by or on behalf of\nthe Company in your possession or in the possession of your Representatives. Any oral Evaluation Material will continue to be held subject to\nthe terms of this agreement.\n(3) The term “Evaluation Material” does not include any information which (i) at the time of disclosure is generally available to and known by the\npublic (other than as a direct or indirect result of a disclosure by you or by any of the Representatives) or (ii) was available to you on a non-\nconfidential basis from a source (other than UBS, the Company or their respective representatives) that is not and was not prohibited from\ndisclosing such information to you by a contractual, legal, fiduciary or other obligation.\n(4) Without the prior written consent of the Company and UBS, you and your Representatives shall not disclose to any person (a) that any\ninvestigations, discussions, or negotiations are taking place concerning the Transaction or any other possible transaction involving the\nCompany and you, (b) that you have requested\nor received any Evaluation Material, or (c) any of the terms, conditions, or other facts with respect to the Transaction or such investigations,\ndiscussions, or negotiations, including the status thereof. The term “person” as used in this agreement shall be broadly interpreted to include\nthe media and any corporation, partnership, group, individual, or entity.\n(5) You agree that (i) all communications regarding the Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be submitted or directed to the individual\ndesignated in writing by the Company. Accordingly, you agree that until the consummation of the Transaction by you or a third party, you will\nnot, directly or indirectly, contact or communicate (other than through UBS) with any officer, director, employee, or agent of the Company\nwithout the express prior written consent of the Company. You further agree that, for a period of fifteen months from the date of this\nagreement, you will not, directly or indirectly, solicit for employment or hire any employee of the Company or any subsidiary or other affiliate\nof the Company with whom you have had contact or who became known to you in connection with your consideration of the Transaction;\nprovided, however, that the foregoing shall not preclude you or your affiliates from (a) making good faith generalized solicitations for\nemployees through advertisements or search firms and hiring any persons through such solicitations; provided, that neither you nor your\nRepresentatives encourages or advises such firm to approach any such employee, or (b) responding to or hiring any employee of the Company\nor any of its subsidiaries who contacts you or your affiliates at his or her own initiative without any prior direct or indirect encouragement or\nsolicitation (other than as permitted by clause (a) of this proviso) or (c) soliciting for employment or hiring any employee of the Company or\nany of its subsidiaries whose employment has been terminated by the Company or by any of its subsidiaries if such solicitation or hiring occurs\nat least three months after such termination.\n(6) You acknowledge and agree that (a) the Company is free to conduct the process leading up to a possible Transaction as the Company, in its\nsole discretion, may determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or\ndefinitive agreement without prior notice to you or any other person), (b) the Company reserves the right, in its sole discretion, to change the\nprocedures relating to your consideration of the Transaction at any time without prior notice to you or any other person, to reject any and all\nproposals made by you or any of your Representatives with regard to the Transaction, and to terminate discussions and negotiations with you\nat any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed, neither\nthe Company nor its officers, directors, employees, affiliates, stockholders, agents, or controlling persons will have any legal obligation to you\nof any kind whatsoever with respect to the Transaction, whether by virtue of this agreement, any other written or oral expression with respect\nto the Transaction or otherwise. For purposes hereof, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part.\n(7) You agree that, for a period of eighteen months from the date of this agreement, unless such shall have been specifically invited in writing by\nthe Company, neither you nor any of your affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934\nAct”)) or Representatives will in any manner, directly or indirectly, (a) effect or seek, offer, or propose (whether publicly or otherwise) to\neffect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to\neffect or participate in, (i) any acquisition of any securities (or of beneficial ownership thereof) or assets of the Company or any of its\nsubsidiaries, (ii) any tender or exchange offer, merger, or other business combination involving the Company or any of its subsidiaries, (iii) any\nrecapitalization, restructuring, liquidation, dissolution, or other extraordinary transaction with respect to the Company or any of its\nsubsidiaries, or (iv) any solicitation of proxies or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a “group” (as defined under the 1934 Act) with respect to the beneficial ownership of any securities of the Company; (c) take any\naction which might force the Company to make a public announcement regarding any of the types of matters set forth in (a) above; (d) enter\ninto any discussions or arrangements with any third party with respect to any of the foregoing; or (e) request or propose that the Company or\nany of the Company’s representatives amend, waive or consider the amendment or waiver of any provision set forth in this paragraph 7.\nNotwithstanding\nthe provisions of this paragraph, it is understood and agreed that in the event that a third party makes a public proposal regarding an\nAcquisition Transaction (as defined below) other than pursuant to a publicly announced agreement between the Company and such third party,\nyou may initiate private discussions with, and submit proposals confidentially to, the CEO of the Company regarding a merger or the\nacquisition of a majority of the total voting power represented by the then outstanding equity securities of the Company (an “Acquisition\nTransaction”), provided that any such proposal shall be expressly conditioned on approval of the Company’s board of directors and shall by its\nterms not require public disclosure. .\n(8) You acknowledge that you and your Representatives may receive material non-public information in connection with your evaluation of the\nTransaction and you are aware (and you will so advise your Representatives) that the United States securities laws impose restrictions on\ntrading in securities when in possession of such information.\n(9) You understand and acknowledge that none of UBS, the Company or any of their respective officers, directors, employees, affiliates,\nstockholders, agents, or controlling persons is making any representation or warranty, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and each of UBS, the Company and such other persons expressly disclaims any and all liability to you or any other\nperson that may be based upon or relate to (a) the use of the Evaluation Material by you or any of the Representatives or (b) any errors therein\nor omissions therefrom. You further agree that you are not entitled to rely on the accuracy and completeness of the Evaluation Material and\nthat you will be entitled to rely solely on those particular representations and warranties, if any, that are made to a purchaser in a definitive\nagreement relating to the Transaction when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such\ndefinitive agreement.\n(10) You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this agreement by\nyou or your Representatives, and, without prejudice to any other rights and remedies otherwise available to the Company, you agree to the\ngranting of equitable relief in the Company’s favor without proof of actual damages. You agree to indemnify and hold harmless the Company\nfrom any damage, loss, cost, or liability (including reasonable legal fees and disbursements and the costs of enforcing this indemnity) arising\nout of or resulting from any unauthorized use or disclosure by you or your Representatives of the Evaluation Material.\n(11) You agree that no failure or delay by UBS or the Company in exercising any right, power or privilege hereunder will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\n(12) By making Evaluation Material available to you or the Representatives, the Company is not, and shall not be deemed to be, granting (expressly\nor by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or\nintellectual property right.\n(13) To the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client privilege, work\nproduct doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding,\ninvestigation, arbitration or dispute, it is acknowledged and agreed that the you and the Company have a commonality of interest with respect\nto such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege,\nwork product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall\nbe entitled to protection under the joint defense doctrine, and you agree to take all measures necessary to preserve, to the fullest extent\npossible, the applicability of all such privileges or doctrines.\n(14) The terms of this Agreement and all obligations thereof will expire three years from the date hereof.\n(15) Any term or provision of this agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or\nenforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n(16) This agreement shall be binding upon the parties and their respective successors and assigns.\n(17) This agreement and all controversies arising from or relating to performance under this agreement shall be governed by and construed in\naccordance with the laws of the State of California (without giving effect to principles of conflicts of laws).\n(18) This agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this agreement\nor waiver of the terms and conditions hereof will be binding unless approved in writing by the parties.\nPlease confirm your agreement to the foregoing by signing both copies of this agreement and returning one to the undersigned.\nVery truly yours,\nUBS Securities LLC,\nas Representative of the Company\nBy: /s/ June Lee\nName: June Lee\nTitle: Associate Director\nBy: /s/ Erik Bernotas\nName: Erik Bernotas\nTitle: Associate Director\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nMDS Inc.\nBy: /s/ Peter Brent\nName: Peter Brent\nTitle: SVP, Legal	EX-99.(D).(2) 10 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNovember 22, 2006\nPeter Brent\nMDS Inc.\n100 International Boulevard\nToronto, Ontario Canada MOW 6J6\nDear Peter:\nIn connection with your consideration of a possible transaction (the “Transaction”) with Molecular Devices Corporation (the “Company”), UBS\nSecurities LLC (“UBS”) as advisor to the Company, is prepared, subject to the terms and conditions of this agreement, to make available to you\ncertain information regarding the Company, its subsidiaries and its affiliates. This information (whether written or oral) furnished to you and your\nRepresentatives (as defined below), whether prior to, on, or following the date hereof, together with analyses, compilations, forecasts, studies, or\nother documents or records prepared by you or your Representatives which contain, are based on, or otherwise reflect or are generated in whole or in\npart from such information, including that stored on any computer, word processor or other similar device, shall be referred to, collectively, as the\n“Evaluation Material”.\nYou hereby agree as follows:\n(1) You shall use the Evaluation Material solely for the purpose of evaluating the Transaction and you shall keep the Evaluation Material\nconfidential, except that you may disclose the Evaluation Material or portions thereof to those of your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys, and accountants), and your potential sources of financing (if any)\nfor the Transaction (collectively, the “Representatives”) (a) who need to know such information for the purpose of evaluating the Transaction,\n(b) who are informed by you of the confidential nature of the Evaluation Material, and (c) who agree to be bound by the terms of this\nagreement as if they were parties hereto. You shall be responsible for any breach of this agreement by your Representatives. In the event that\nyou or any of your Representatives are requested or required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand, or similar process) to disclose any of the Evaluation Material, you shall provide the Company and UBS with prompt prior written\nnotice of such requirement, you shall furnish only that portion of the Evaluation Material which you are advised by opinion of counsel is\nlegally required, you shall exercise your best efforts to obtain reliable assurance that confidential treatment will be accorded such Evaluation\nMaterial, and you shall cooperate fully with the Company in any attempt by the Company to obtain any protective orders or other appropriate\nremedies in connection therewith.\n(2) If you determine not to proceed with the Transaction, you will promptly inform UBS, as representative of the Company, of that decision and,\nin that case or at any time upon the request of UBS or the Company, you and your Representatives shall promptly either (i) destroy all copies\nof any written Evaluation Material in your or their possession or under your or their custody or control (including that stored in any computer,\nword processor, or similar device) and confirm such destruction to the Company and UBS, as representative of the Company, in writing or\n(ii) return to the Company or UBS, as representative of the Company, all copies of the Evaluation Material furnished to you by or on behalf of\nthe Company in your possession or in the possession of your Representatives. Any oral Evaluation Material will continue to be held subject to\nthe terms of this agreement.\n(3) The term “Evaluation Material” does not include any information which (i) at the time of disclosure is generally available to and known by the\npublic (other than as a direct or indirect result of a disclosure by you or by any of the Representatives) or (ii) was available to you on a non-\nconfidential basis from a source (other than UBS, the Company or their respective representatives) that is not and was not prohibited from\ndisclosing such information to you by a contractual, legal, fiduciary or other obligation.\n(4) Without the prior written consent of the Company and UBS, you and your Representatives shall not disclose to any person (a) that any\ninvestigations, discussions, or negotiations are taking place concerning the Transaction or any other possible transaction involving the\nCompany and you, (b) that you have requested\n©)\n(6)\n)\nor received any Evaluation Material, or (c) any of the terms, conditions, or other facts with respect to the Transaction or such investigations,\ndiscussions, or negotiations, including the status thereof. The term “person” as used in this agreement shall be broadly interpreted to include\nthe media and any corporation, partnership, group, individual, or entity.\nYou agree that (i) all communications regarding the Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be submitted or directed to the individual\ndesignated in writing by the Company. Accordingly, you agree that until the consummation of the Transaction by you or a third party, you will\nnot, directly or indirectly, contact or communicate (other than through UBS) with any officer, director, employee, or agent of the Company\nwithout the express prior written consent of the Company. You further agree that, for a period of fifteen months from the date of this\nagreement, you will not, directly or indirectly, solicit for employment or hire any employee of the Company or any subsidiary or other affiliate\nof the Company with whom you have had contact or who became known to you in connection with your consideration of the Transaction;\nprovided, however, that the foregoing shall not preclude you or your affiliates from (a) making good faith generalized solicitations for\nemployees through advertisements or search firms and hiring any persons through such solicitations; provided, that neither you nor your\nRepresentatives encourages or advises such firm to approach any such employee, or (b) responding to or hiring any employee of the Company\nor any of its subsidiaries who contacts you or your affiliates at his or her own initiative without any prior direct or indirect encouragement or\nsolicitation (other than as permitted by clause (a) of this proviso) or (c) soliciting for employment or hiring any employee of the Company or\nany of its subsidiaries whose employment has been terminated by the Company or by any of its subsidiaries if such solicitation or hiring occurs\nat least three months after such termination.\nYou acknowledge and agree that (a) the Company is free to conduct the process leading up to a possible Transaction as the Company, in its\nsole discretion, may determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or\ndefinitive agreement without prior notice to you or any other person), (b) the Company reserves the right, in its sole discretion, to change the\nprocedures relating to your consideration of the Transaction at any time without prior notice to you or any other person, to reject any and all\nproposals made by you or any of your Representatives with regard to the Transaction, and to terminate discussions and negotiations with you\nat any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed, neither\nthe Company nor its officers, directors, employees, affiliates, stockholders, agents, or controlling persons will have any legal obligation to you\nof any kind whatsoever with respect to the Transaction, whether by virtue of this agreement, any other written or oral expression with respect\nto the Transaction or otherwise. For purposes hereof, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part.\nYou agree that, for a period of eighteen months from the date of this agreement, unless such shall have been specifically invited in writing by\nthe Company, neither you nor any of your affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934\nAct”)) or Representatives will in any manner, directly or indirectly, (a) effect or seek, offer, or propose (whether publicly or otherwise) to\neffect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to\neffect or participate in, (i) any acquisition of any securities (or of beneficial ownership thereof) or assets of the Company or any of its\nsubsidiaries, (ii) any tender or exchange offer, merger, or other business combination involving the Company or any of its subsidiaries, (iii) any\nrecapitalization, restructuring, liquidation, dissolution, or other extraordinary transaction with respect to the Company or any of its\nsubsidiaries, or (iv) any solicitation of proxies or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a “group” (as defined under the 1934 Act) with respect to the beneficial ownership of any securities of the Company; (c) take any\naction which might force the Company to make a public announcement regarding any of the types of matters set forth in (a) above; (d) enter\ninto any discussions or arrangements with any third party with respect to any of the foregoing; or (e) request or propose that the Company or\nany of the Company’s representatives amend, waive or consider the amendment or waiver of any provision set forth in this paragraph 7.\nNotwithstanding\n®)\n©)\n(10)\n(11)\n(12)\n(13)\n(14)\nthe provisions of this paragraph, it is understood and agreed that in the event that a third party makes a public proposal regarding an\nAcquisition Transaction (as defined below) other than pursuant to a publicly announced agreement between the Company and such third party,\nyou may initiate private discussions with, and submit proposals confidentially to, the CEO of the Company regarding a merger or the\nacquisition of a majority of the total voting power represented by the then outstanding equity securities of the Company (an “Acquisition\nTransaction”), provided that any such proposal shall be expressly conditioned on approval of the Company’s board of directors and shall by its\nterms not require public disclosure. .\nYou acknowledge that you and your Representatives may receive material non-public information in connection with your evaluation of the\nTransaction and you are aware (and you will so advise your Representatives) that the United States securities laws impose restrictions on\ntrading in securities when in possession of such information.\nYou understand and acknowledge that none of UBS, the Company or any of their respective officers, directors, employees, affiliates,\nstockholders, agents, or controlling persons is making any representation or warranty, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and each of UBS, the Company and such other persons expressly disclaims any and all liability to you or any other\nperson that may be based upon or relate to (a) the use of the Evaluation Material by you or any of the Representatives or (b) any errors therein\nor omissions therefrom. You further agree that you are not entitled to rely on the accuracy and completeness of the Evaluation Material and\nthat you will be entitled to rely solely on those particular representations and warranties, if any, that are made to a purchaser in a definitive\nagreement relating to the Transaction when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such\ndefinitive agreement.\nYou acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this agreement by\nyou or your Representatives, and, without prejudice to any other rights and remedies otherwise available to the Company, you agree to the\ngranting of equitable relief in the Company’s favor without proof of actual damages. You agree to indemnify and hold harmless the Company\nfrom any damage, loss, cost, or liability (including reasonable legal fees and disbursements and the costs of enforcing this indemnity) arising\nout of or resulting from any unauthorized use or disclosure by you or your Representatives of the Evaluation Material.\nYou agree that no failure or delay by UBS or the Company in exercising any right, power or privilege hereunder will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\nBy making Evaluation Material available to you or the Representatives, the Company is not, and shall not be deemed to be, granting (expressly\nor by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or\nintellectual property right.\nTo the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client privilege, work\nproduct doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding,\ninvestigation, arbitration or dispute, it is acknowledged and agreed that the you and the Company have a commonality of interest with respect\nto such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege,\nwork product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall\nbe entitled to protection under the joint defense doctrine, and you agree to take all measures necessary to preserve, to the fullest extent\npossible, the applicability of all such privileges or doctrines.\nThe terms of this Agreement and all obligations thereof will expire three years from the date hereof.\n(15)\n(16)\n(17)\n(18)\nAny term or provision of this agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or\nenforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\nThis agreement shall be binding upon the parties and their respective successors and assigns.\nThis agreement and all controversies arising from or relating to performance under this agreement shall be governed by and construed in\naccordance with the laws of the State of California (without giving effect to principles of conflicts of laws).\nThis agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this agreement\nor waiver of the terms and conditions hereof will be binding unless approved in writing by the parties.\nPlease confirm your agreement to the foregoing by signing both copies of this agreement and returning one to the undersigned. CONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE: MDS Inc.\nBy: /s/ Peter Brent\nName: Peter Brent\nTitle: SVP, Legal\nVery truly yours,\nUBS Securities LLC,\nas Representative of the Company\nBy: /s/ June Lee\nName: June Lee\nTitle: Associate Director\nBy: /s/ Erik Bernotas\nName: Erik Bernotas\nTitle: Associate Director	EX-99.(D).(2) 10 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNovember 22, 2006\nPeter Brent\nMDS Inc.\n100 International Boulevard\nToronto, Ontario Canada M9W 6J6\nDear Peter:\nIn connection with your consideration of a possible transaction (the "Transaction") with Molecular Devices Corporation (the "Company"), UBS\nSecurities LLC ("UBS") as advisor to the Company, is prepared, subject to the terms and conditions of this agreement, to make available to you\ncertain information regarding the Company, its subsidiaries and its affiliates. This information (whether written or oral) furnished to you and your\nRepresentatives (as defined below), whether prior to, on, or following the date hereof, together with analyses, compilations, forecasts, studies, or\nother documents or records prepared by you or your Representatives which contain, are based on, or otherwise reflect or are generated in whole or\nin\npart from such information, including that stored on any computer, word processor or other similar device, shall be referred to, collectively, as the\n"Evaluation Material"\nYou hereby agree as follows:\n(1) You shall use the Evaluation Material solely for the purpose of evaluating the Transaction and you shall keep the Evaluation Material\nconfidential, except that you may disclose the Evaluation Material or portions thereof to those of your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys, and accountants), and your potential sources of financing (if any)\nfor the Transaction (collectively, the "Representatives") (a) who need to know such information for the purpose of evaluating the Transaction,\n(b) who are informed by you of the confidential nature of the Evaluation Material, and (c) who agree to be bound by the terms of this\nagreement as if they were parties hereto. You shall be responsible for any breach of this agreement by your Representatives. In the event that\nyou\nor any of your Representatives are requested or required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand, or similar process) to disclose any of the Evaluation Material, you shall provide the Company and UBS with prompt prior written\nnotice of such requirement, you shall furnish only that portion of the Evaluation Material which you are advised by opinion of counsel is\nlegally\nrequired,\nyou\nshall\nexercise\nyour\nbest\nefforts\nto\nobtain\nreliable\nassurance\nthat\nconfidential\ntreatment\nwill\nbe\naccorded\nsuch\nEvaluation\nMaterial, and you shall cooperate fully with the Company in any attempt by the Company to obtain any protective orders or other appropriate\nremedies in connection therewith.\n(2)\nIf you determine not to proceed with the Transaction, you will promptly inform UBS, as representative of the Company, of that decision and,\nin that case or at any time upon the request of UBS or the Company, you and your Representatives shall promptly either (i) destroy all copies\nof\nany\nwritten\nEvaluation\nMaterial\nin\nyour\nor\ntheir\npossession\nor\nunder\nyour\nor\ntheir\ncustody\nor\ncontrol\n(including\nthat\nstored\nin\nany\ncomputer,\nword processor, or similar device) and confirm such destruction to the Company and UBS, as representative of the Company, in writing or\n(ii) return to the Company or UBS, as representative of the Company, all copies of the Evaluation Material furnished to you by or on behalf of\nthe Company in your possession or in the possession of your Representatives. Any oral Evaluation Material will continue to be held subject to\nthe terms of this agreement.\n(3)\nThe term "Evaluation Material" does not include any information which (i) at the time of disclosure is generally available to and known by the\npublic (other than as a direct or indirect result of a disclosure by you or by any of the Representatives) or (ii) was available to you on a non-\nconfidential basis from a source (other than UBS, the Company or their respective representatives) that is not and was not prohibited from\ndisclosing such information to you by a contractual, legal, fiduciary or other obligation.\n(4) Without the prior written consent of the Company and UBS, you and your Representatives shall not disclose to any person (a) that any\ninvestigations, discussions, or negotiations are taking place concerning the Transaction or any other possible transaction involving the\nCompany and you, (b) that you have requested\nor received any Evaluation Material, or (c) any of the terms, conditions, or other facts with respect to the Transaction or such investigations,\ndiscussions, or negotiations, including the status thereof. The term "person" as used in this agreement shall be broadly interpreted to include\nthe media and any corporation, partnership, group, individual, or entity.\n(5)\nYou agree that (i) all communications regarding the Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be submitted or directed to the individual\ndesignated in writing by the Company. Accordingly, you agree that until the consummation of the Transaction by you or a third party, you will\nnot, directly or indirectly, contact or communicate (other than through UBS) with any officer, director, employee, or agent of the Company\nwithout the express prior written consent of the Company. You further agree that, for a period of fifteen months from the date of this\nagreement, you will not, directly or indirectly, solicit for employment or hire any employee of the Company or any subsidiary or other affiliate\nof the Company with whom you have had contact or who became known to you in connection with your consideration of the Transaction;\nprovided, however, that the foregoing shall not preclude you or your affiliates from (a) making good faith generalized solicitations for\nemployees through advertisements or search firms and hiring any persons through such solicitations; provided, that neither you nor your\nRepresentatives encourages or advises such firm to approach any such employee, or (b) responding to or hiring any employee of the Company\nor\nany\nof\nits\nsubsidiaries\nwho\ncontacts\nyou\nor\nyour\naffiliates\nat\nhis\nor\nher\nown\ninitiative\nwithout\nany\nprior\ndirect\nor\nindirect\nencouragement\nor\nsolicitation (other than as permitted by clause (a) of this proviso) or (c) soliciting for employment or hiring any employee of the Company or\nany of its subsidiaries whose employment has been terminated by the Company or by any of its subsidiaries if such solicitation or hiring occurs\nat least three months after such termination.\n(6)\nYou\nacknowledge\nand\nagree\nthat\n(a)\nthe\nCompany\nis\nfree\nto\nconduct\nthe\nprocess\nleading\nup\nto\na\npossible\nTransaction\nas\nthe\nCompany,\nin\nits\nsole discretion, may determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or\ndefinitive agreement without prior notice to you or any other person), (b) the Company reserves the right, in its sole discretion, to change the\nprocedures relating to your consideration of the Transaction at any time without prior notice to you or any other person, to reject any and all\nproposals made by you or any of your Representatives with regard to the Transaction, and to terminate discussions and negotiations with you\nat any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed, neither\nthe Company nor its officers, directors, employees, affiliates, stockholders, agents, or controlling persons will have any legal obligation to you\nof\nany kind whatsoever with respect to the Transaction, whether by virtue of this agreement, any other written or oral expression with respect\nto the Transaction or otherwise. For purposes hereof, the term "definitive agreement" does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part.\n(7)\nYou agree that, for a period of eighteen months from the date of this agreement, unless such shall have been specifically invited in writing by\nthe Company, neither you nor any of your affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the "1934\nAct")) or Representatives will in any manner, directly or indirectly, (a) effect or seek, offer, or propose (whether publicly or otherwise) to\neffect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to\neffect or participate in, (i) any acquisition of any securities (or of beneficial ownership thereof) or assets of the Company or any of its\nsubsidiaries, (ii) any tender or exchange offer, merger, or other business combination involving the Company or any of its subsidiaries, (iii) any\nrecapitalization, restructuring, liquidation, dissolution, or other extraordinary transaction with respect to the Company or any of its\nsubsidiaries, or (iv) any solicitation of proxies or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a "group" (as defined under the 1934 Act) with respect to the beneficial ownership of any securities of the Company; (c) take any\naction which might force the Company to make a public announcement regarding any of the types of matters set forth in (a) above; (d) enter\ninto any discussions or arrangements with any third party with respect to any of the foregoing; or (e) request or propose that the Company or\nany of the Company's representatives amend, waive or consider the amendment or waiver of any provision set forth in this paragraph\n7.\nNotwithstanding\nthe provisions of this paragraph, it is understood and agreed that in the event that a third party makes a public proposal regarding an\nAcquisition Transaction (as defined below) other than pursuant to a publicly announced agreement between the Company and such third party,\nyou may initiate private discussions with, and submit proposals confidentially to, the CEO of the Company regarding a merger or the\nacquisition of a majority of the total voting power represented by the then outstanding equity securities of the Company (an "Acquisition\nTransaction"), provided that any such proposal shall be expressly conditioned on approval of the Company's board of directors and shall by its\nterms not require public disclosure.\n(8)\nYou acknowledge that you and your Representatives may receive material non-public information in connection with your evaluation of the\nTransaction and you are aware (and you will so advise your Representatives) that the United States securities laws impose restrictions on\ntrading in securities when in possession of such information.\n(9)\nYou understand and acknowledge that none of UBS, the Company or any of their respective officers, directors, employees, affiliates,\nstockholders, agents, or controlling persons is making any representation or warranty, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and each of UBS, the Company and such other persons expressly disclaims any and all liability to you or any other\nperson that may be based upon or relate to (a) the use of the Evaluation Material by you or any of the Representatives or (b) any errors therein\nor omissions therefrom. You further agree that you are not entitled to rely on the accuracy and completeness of the Evaluation Material and\nthat you will be entitled to rely solely on those particular representations and warranties, if any, that are made to a purchaser in a definitive\nagreement relating to the Transaction when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such\ndefinitive agreement.\n(10) You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this agreement by\nyou or your Representatives, and, without prejudice to any other rights and remedies otherwise available to the Company, you agree to the\ngranting of equitable relief in the Company's favor without proof of actual damages. You agree to indemnify and hold harmless the Company\nfrom any damage, loss, cost, or liability (including reasonable legal fees and disbursements and the costs of enforcing this indemnity) arising\nout of or resulting from any unauthorized use or disclosure by you or your Representatives of the Evaluation Material.\n(11) You agree that no failure or delay by UBS or the Company in exercising any right, power or privilege hereunder will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power\nor\nprivilege hereunder.\n(12) By making Evaluation Material available to you or the Representatives, the Company is not, and shall not be deemed to be, granting (expressly\nor by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or\nintellectual property right.\n(13) To the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-clien privilege, work\nproduct doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding,\ninvestigation, arbitration or dispute, it is acknowledged and agreed that the you and the Company have a commonality of interest with respect\nto such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege,\nwork product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall\nbe entitled to protection under the joint defense doctrine, and you agree to take all measures necessary to preserve, to the fullest extent\npossible, the applicability of all such privileges or doctrines.\n(14) The terms of this Agreement and all obligations thereof will expire three years from the date hereof.\n(15) Any term or provision of this agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or\nenforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n(16) This agreement shall be binding upon the parties and their respective successors and assigns.\n(17) This agreement and all controversies arising from or relating to performance under this agreement shall be governed by and construed in\naccordance with the laws of the State of California (without giving effect to principles of conflicts of laws).\n(18)\nThis agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this agreement\nor waiver of the terms and conditions hereof will be binding unless approved in writing by the parties.\nPlease confirm your agreement to the foregoing by signing both copies of this agreement and returning one to the undersigned.\nVery truly yours,\nUBS Securities LLC,\nas Representative of the Company\nBy: /s/ June Lee\nName: June Lee\nTitle: Associate Director\nBy: /s/ Erik Bernotas\nName: Erik Bernotas\nTitle: Associate Director\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nMDS Inc.\nBy: /s/ Peter Brent\nName: Peter Brent\nTitle: SVP, Legal	EX-99.(D).(2) 10 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNovember 22, 2006\nPeter Brent\nMDS Inc.\n100 International Boulevard\nToronto, Ontario Canada M9W 6J6\nDear Peter:\nIn connection with your consideration of a possible transaction (the “Transaction”) with Molecular Devices Corporation (the “Company”), UBS\nSecurities LLC (“UBS”) as advisor to the Company, is prepared, subject to the terms and conditions of this agreement, to make available to you\ncertain information regarding the Company, its subsidiaries and its affiliates. This information (whether written or oral) furnished to you and your\nRepresentatives (as defined below), whether prior to, on, or following the date hereof, together with analyses, compilations, forecasts, studies, or\nother documents or records prepared by you or your Representatives which contain, are based on, or otherwise reflect or are generated in whole or in\npart from such information, including that stored on any computer, word processor or other similar device, shall be referred to, collectively, as the\n“Evaluation Material”.\nYou hereby agree as follows:\n(1) You shall use the Evaluation Material solely for the purpose of evaluating the Transaction and you shall keep the Evaluation Material\nconfidential, except that you may disclose the Evaluation Material or portions thereof to those of your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys, and accountants), and your potential sources of financing (if any)\nfor the Transaction (collectively, the “Representatives”) (a) who need to know such information for the purpose of evaluating the Transaction,\n(b) who are informed by you of the confidential nature of the Evaluation Material, and (c) who agree to be bound by the terms of this\nagreement as if they were parties hereto. You shall be responsible for any breach of this agreement by your Representatives. In the event that\nyou or any of your Representatives are requested or required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand, or similar process) to disclose any of the Evaluation Material, you shall provide the Company and UBS with prompt prior written\nnotice of such requirement, you shall furnish only that portion of the Evaluation Material which you are advised by opinion of counsel is\nlegally required, you shall exercise your best efforts to obtain reliable assurance that confidential treatment will be accorded such Evaluation\nMaterial, and you shall cooperate fully with the Company in any attempt by the Company to obtain any protective orders or other appropriate\nremedies in connection therewith.\n(2) If you determine not to proceed with the Transaction, you will promptly inform UBS, as representative of the Company, of that decision and,\nin that case or at any time upon the request of UBS or the Company, you and your Representatives shall promptly either (i) destroy all copies\nof any written Evaluation Material in your or their possession or under your or their custody or control (including that stored in any computer,\nword processor, or similar device) and confirm such destruction to the Company and UBS, as representative of the Company, in writing or\n(ii) return to the Company or UBS, as representative of the Company, all copies of the Evaluation Material furnished to you by or on behalf of\nthe Company in your possession or in the possession of your Representatives. Any oral Evaluation Material will continue to be held subject to\nthe terms of this agreement.\n(3) The term “Evaluation Material” does not include any information which (i) at the time of disclosure is generally available to and known by the\npublic (other than as a direct or indirect result of a disclosure by you or by any of the Representatives) or (ii) was available to you on a non-\nconfidential basis from a source (other than UBS, the Company or their respective representatives) that is not and was not prohibited from\ndisclosing such information to you by a contractual, legal, fiduciary or other obligation.\n(4) Without the prior written consent of the Company and UBS, you and your Representatives shall not disclose to any person (a) that any\ninvestigations, discussions, or negotiations are taking place concerning the Transaction or any other possible transaction involving the\nCompany and you, (b) that you have requested\nor received any Evaluation Material, or (c) any of the terms, conditions, or other facts with respect to the Transaction or such investigations,\ndiscussions, or negotiations, including the status thereof. The term “person” as used in this agreement shall be broadly interpreted to include\nthe media and any corporation, partnership, group, individual, or entity.\n(5) You agree that (i) all communications regarding the Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be submitted or directed to the individual\ndesignated in writing by the Company. Accordingly, you agree that until the consummation of the Transaction by you or a third party, you will\nnot, directly or indirectly, contact or communicate (other than through UBS) with any officer, director, employee, or agent of the Company\nwithout the express prior written consent of the Company. You further agree that, for a period of fifteen months from the date of this\nagreement, you will not, directly or indirectly, solicit for employment or hire any employee of the Company or any subsidiary or other affiliate\nof the Company with whom you have had contact or who became known to you in connection with your consideration of the Transaction;\nprovided, however, that the foregoing shall not preclude you or your affiliates from (a) making good faith generalized solicitations for\nemployees through advertisements or search firms and hiring any persons through such solicitations; provided, that neither you nor your\nRepresentatives encourages or advises such firm to approach any such employee, or (b) responding to or hiring any employee of the Company\nor any of its subsidiaries who contacts you or your affiliates at his or her own initiative without any prior direct or indirect encouragement or\nsolicitation (other than as permitted by clause (a) of this proviso) or (c) soliciting for employment or hiring any employee of the Company or\nany of its subsidiaries whose employment has been terminated by the Company or by any of its subsidiaries if such solicitation or hiring occurs\nat least three months after such termination.\n(6) You acknowledge and agree that (a) the Company is free to conduct the process leading up to a possible Transaction as the Company, in its\nsole discretion, may determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or\ndefinitive agreement without prior notice to you or any other person), (b) the Company reserves the right, in its sole discretion, to change the\nprocedures relating to your consideration of the Transaction at any time without prior notice to you or any other person, to reject any and all\nproposals made by you or any of your Representatives with regard to the Transaction, and to terminate discussions and negotiations with you\nat any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed, neither\nthe Company nor its officers, directors, employees, affiliates, stockholders, agents, or controlling persons will have any legal obligation to you\nof any kind whatsoever with respect to the Transaction, whether by virtue of this agreement, any other written or oral expression with respect\nto the Transaction or otherwise. For purposes hereof, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part.\n(7) You agree that, for a period of eighteen months from the date of this agreement, unless such shall have been specifically invited in writing by\nthe Company, neither you nor any of your affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934\nAct”)) or Representatives will in any manner, directly or indirectly, (a) effect or seek, offer, or propose (whether publicly or otherwise) to\neffect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to\neffect or participate in, (i) any acquisition of any securities (or of beneficial ownership thereof) or assets of the Company or any of its\nsubsidiaries, (ii) any tender or exchange offer, merger, or other business combination involving the Company or any of its subsidiaries, (iii) any\nrecapitalization, restructuring, liquidation, dissolution, or other extraordinary transaction with respect to the Company or any of its\nsubsidiaries, or (iv) any solicitation of proxies or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a “group” (as defined under the 1934 Act) with respect to the beneficial ownership of any securities of the Company; (c) take any\naction which might force the Company to make a public announcement regarding any of the types of matters set forth in (a) above; (d) enter\ninto any discussions or arrangements with any third party with respect to any of the foregoing; or (e) request or propose that the Company or\nany of the Company’s representatives amend, waive or consider the amendment or waiver of any provision set forth in this paragraph 7.\nNotwithstanding\nthe provisions of this paragraph, it is understood and agreed that in the event that a third party makes a public proposal regarding an\nAcquisition Transaction (as defined below) other than pursuant to a publicly announced agreement between the Company and such third party,\nyou may initiate private discussions with, and submit proposals confidentially to, the CEO of the Company regarding a merger or the\nacquisition of a majority of the total voting power represented by the then outstanding equity securities of the Company (an “Acquisition\nTransaction”), provided that any such proposal shall be expressly conditioned on approval of the Company’s board of directors and shall by its\nterms not require public disclosure. .\n(8) You acknowledge that you and your Representatives may receive material non-public information in connection with your evaluation of the\nTransaction and you are aware (and you will so advise your Representatives) that the United States securities laws impose restrictions on\ntrading in securities when in possession of such information.\n(9) You understand and acknowledge that none of UBS, the Company or any of their respective officers, directors, employees, affiliates,\nstockholders, agents, or controlling persons is making any representation or warranty, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and each of UBS, the Company and such other persons expressly disclaims any and all liability to you or any other\nperson that may be based upon or relate to (a) the use of the Evaluation Material by you or any of the Representatives or (b) any errors therein\nor omissions therefrom. You further agree that you are not entitled to rely on the accuracy and completeness of the Evaluation Material and\nthat you will be entitled to rely solely on those particular representations and warranties, if any, that are made to a purchaser in a definitive\nagreement relating to the Transaction when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such\ndefinitive agreement.\n(10) You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this agreement by\nyou or your Representatives, and, without prejudice to any other rights and remedies otherwise available to the Company, you agree to the\ngranting of equitable relief in the Company’s favor without proof of actual damages. You agree to indemnify and hold harmless the Company\nfrom any damage, loss, cost, or liability (including reasonable legal fees and disbursements and the costs of enforcing this indemnity) arising\nout of or resulting from any unauthorized use or disclosure by you or your Representatives of the Evaluation Material.\n(11) You agree that no failure or delay by UBS or the Company in exercising any right, power or privilege hereunder will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\n(12) By making Evaluation Material available to you or the Representatives, the Company is not, and shall not be deemed to be, granting (expressly\nor by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or\nintellectual property right.\n(13) To the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client privilege, work\nproduct doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding,\ninvestigation, arbitration or dispute, it is acknowledged and agreed that the you and the Company have a commonality of interest with respect\nto such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege,\nwork product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall\nbe entitled to protection under the joint defense doctrine, and you agree to take all measures necessary to preserve, to the fullest extent\npossible, the applicability of all such privileges or doctrines.\n(14) The terms of this Agreement and all obligations thereof will expire three years from the date hereof.\n(15) Any term or provision of this agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or\nenforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n(16) This agreement shall be binding upon the parties and their respective successors and assigns.\n(17) This agreement and all controversies arising from or relating to performance under this agreement shall be governed by and construed in\naccordance with the laws of the State of California (without giving effect to principles of conflicts of laws).\n(18) This agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this agreement\nor waiver of the terms and conditions hereof will be binding unless approved in writing by the parties.\nPlease confirm your agreement to the foregoing by signing both copies of this agreement and returning one to the undersigned.\nVery truly yours,\nUBS Securities LLC,\nas Representative of the Company\nBy: /s/ June Lee\nName: June Lee\nTitle: Associate Director\nBy: /s/ Erik Bernotas\nName: Erik Bernotas\nTitle: Associate Director\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nMDS Inc.\nBy: /s/ Peter Brent\nName: Peter Brent\nTitle: SVP, Legal
724a6c9ea428637bd128cafb401b8a7e.pdf	effective_date jurisdiction party term	EX-10.10 11 a2235501zex-10 _10.htm EX-10 .10\nExhibit 10.10\nEXHIBITANon-Compe\nt\ni\nt\ni\non\n,\nNon-So\nl\ni\nc\ni\nt\na\nt\ni\non\n,\nConf\ni\nden\nt\ni\na\nl\ni\nt\nyandAss\ni\ngnmen\nt\nAgreemen\nt\nIncons\ni\nd era\nt\ni\nonandasacond\ni\nt\ni\nonofmyemp\nl\noymen\nt\nbyScho\nl\narRockLLC\n,\naDe\nl\naware\nl\ni\nm\ni\nt\ned\nl\ni\nab\ni\nl\ni\nt\nycompany(a\nl\nongw\ni\nt\nh\ni\nt\ns Aff\ni\nl\ni\na\nt\nes\nt\nhe"Company")\n,\nIherebyagreeasfo\nl\nl\nows\n:\nI\n.\nPropr\ni\ne\nt\naryInforma\nt\ni\non\n.\nIagree\nt\nha\nt\na\nl\nl\nCompanyandusemybes\nt\neffo r\nt\ns\nt\nopreven\nt\nt\nheunau\nt\nhor\ni\nzedd\ni\nsc\nl\nosureofa\nl\nl\nPropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n,\nwhe\nt\nherorno\nt\ni\nnwr\ni\nt\ni\nng\n,\nwhe\nt\nherorno\nt\nd\ni\nsc\nl\nosedbeforeoraf\nt\nerIwasf\ni\nrs\nt\nemp\nl\noyedby\nt\nheCompany\n,\nconcern\ni\nng\nt\nheCompany\n'\nsbus\ni\nn ess\n,\nt\nechno\nl\nogy\n,\nbus\ni\nnessre\nl\na\nt\ni\non sh\ni\npsorf\ni\nna nc\ni\na\nl\naff a\ni\nrs\nt\nha\nt\nt\nheCompanyhasno\nt\nre\nl\neased\nt\no\nt\nhegenera\nl\npub\nl\ni\nc (co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n"Propr\ni\ne\nt\naryInforma\nt\ni\non")\n,\nanda\nl\nl\nt\nang\ni\nb\nl\neembod\ni\nmen\nt\ns\nt\nhereof\n:\nareandw\ni\nl\nl\nbe\nt\nheexc\nl\nus\ni\nveproper\nt\nyof\nt\nheCompany\n.\nBywayof\ni\nl\nl\nus\nt\nra\nt\ni\non\n,\nPropr\ni\ne\nt\naryInforma\nt\ni\nonmay\ni\nnc\nl\nude\ni\nnforma\nt\ni\nonorma\nt\ner\ni\na\nl\nt\nha\nt\nhasno\nt\nbeenmadegenera\nl\nl\nyava\ni\nl\nab\nl\ne\nt\no\nt\nhepub\nl\ni\nc\n,\nsuchas\n:\n(a)corpora\nt\ne\ni\nnforma\nt\ni\non\n,\ni\nnc\nl\nud\ni\nngp\nl\nans\n,\ns\nt\nra\nt\neg\ni\nes\n,\nIn form a\nt\ni\non\n.\nIw\ni\nl\nl\nde\nl\ni\nver\nt\no\nt\nheCompanya\nl\nl\ncop\ni\nesando\nt\nher\nt\nang\ni\nb\nl\neembod\ni\nmen\nt\nsofPropr\ni\ne\nt\nary Info rm a\nt\ni\non\ni\nnmypossess\ni\nonorcon\nt\nro\nl\nupon\nt\nheear\nl\ni\nerofareques\nt\nby\nt\nheCompanyor\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\n.\n3\n.\nR\ni\ngh\nt\nsofO\nt\nhe rs\n.\nIunders\nt\nand\nt\nha\nt\nt\nheCompany\ni\nsnowandmayhereaf\nt\nerbesub\nj\nec\nt\nt\nonon-d\ni\nsc\nl\nosureorconf\ni\nden\nt\ni\na\nl\ni\nt\nyagreemen\nt\nsw\ni\nt\nh\nt\nh\ni\nrdpersonswh\ni\nchrequ\ni\nre\nt\nheCompany\nt\nopro\nt\nec\nt\no r refra\ni\nnfromuseofpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n.\nIagree\nt\nobeboundby\nt\nhe\nt\nermsofsuchagreemen\nt\ns\ni\nn\nt\nheeven\nt\nIhaveaccess\nt\nosuchpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n.\nme\nt\nhods\n,\npo\nl\ni\nc\ni\nes\n,\nres o\nl\nu\nt\ni\nons\n,\nno\nt\nes\n,\nema\ni\nl\ncorrespondence\n,\nnego\nt\ni\na\nt\ni\nonsor\nl\ni\nt\ni\nga\nt\ni\non\n;\n(b)marke\nt\ni\nng\ni\nnforma\nt\ni\non\n,\nme\nt\nhods\n,\ncus\nt\nomer\ni\nden\nt\ni\nt\ni\nesabou\nt\ncus\nt\nom ers\n,\nprospec\nt\ni\nnc\nl\nud\ni\nngs\nt\nra\nt\neg\ni\nes\n,\noro\nt\nher\ni\nnforma\nt\ni\non\ni\nden\nt\ni\nt\ni\nesoro\nt\nher4\n.\nCo mm\ni\nt\nmen\nt\nt\noCompany\n;\nAvo\ni\ndanceofConf\nl\ni\nc\nt\nof\nIn\nt\nere s\nt\n.\nWh\ni\nl\neanemp\nl\noyeeof\nt\nheCompany\n,\nIw\ni\nl\nl\ndevo\nt\nemyfu\nl\nl\n-\nt\ni\nmeeffor\nt\ns\nt\no\nt\nheCompany\n'\nsbus\ni\nnessandIw\ni\nl\nl\nno\nt\nengage\ni\nnanyo\nt\nherbus\ni\nnessac\nt\ni\nv\ni\nt\ny\nt\nha\nt\nconf\nl\ni\nc\nt\nsw\ni\nt\nhmydu\nt\ni\nes\nt\no\nt\nheCompany\n.\nIw\ni\nl\nl\nadv\ni\nse\nt\nhepres\ni\nden\nt\nof\nt\nheCompanyorh\ni\nsorhernom\ni\nneea\nt\nsu ch\nt\ni\nmeasanyac\nt\ni\nv\ni\nt\nyofe\ni\nt\nher\nt\nheCompanyorano\nt\nherbus\ni\nnesspresen\nt\nsmew\ni\nt\nhaconf\nl\ni\nc\nt\nof\ni\nn\nt\ne res\nt\nor\nt\nheappearanceofaconf\nl\ni\nc\nt\nof\ni\nn\nt\ne res\nt\nasanemp\nl\noyeeof\nt\nheCompany\n.\nIw\ni\nl\nl\nt\nakewha\nt\neverac\nt\ni\non\ni\nsreques\nt\nedofmeby\nt\nheCompany\nt\no reso\nl\nveanyconf\nl\ni\nc\nt\norappearanceofconf\nl\ni\nc\nt\nwh\ni\nch\ni\nt\nf\ni\nnds\nt\noex\ni\ns\nt\n.\ni\nnforma\nt\ni\nonabou\nt\nprospec\nt\ns\n,\normarke\nt\nana\nl\nysesorpro\nj\nec\nt\ni\nons\n:\n(c)f7nanc\ni\na\nl\ni\nnforma\nt\ni\non\n,\ni\nnc\nl\nud\ni\nngcos\nt\nandperformanceda\nt\na\n,\ndeb\nt\narrangemen\nt\ns\n,\nequ\ni\nt\nys\nt\nruc\nt\nure\n,\ni\nnves\nt\norsandho\nl\nd\ni\nngs\n,\npurchas\ni\nngandsa\nl\nesda\nt\naandpr\ni\nce\nl\ni\ns\nt\ns\n:\nand\nt\nechno\nl\nog\ni\nca\nl\ni\nnf\ni\nxma\nt\ni\non\n,\nspec\ni\nf\ni\nca\nt\ni\nons\n,\nmanua\nl\ns\n,\nfo rms\n,\n(d)opera\nt\ni\nona\nl\nand\ni\nnc\nl\nud\ni\nngp\nl\nans\n,\nt\nemp\nl\na\nt\nes\n,\nsof\nt\nw are\n,\ndes\ni\ngns\n.\nme\nt\nhods\n,\nprocedures\n,\nfo rmu\nl\nas\n,\nd\ni\nscover\ni\nes\n,\ni\nnven\nt\ni\nons\n,\ni\nmprovemen\nt\ns\n,\nb\ni\no\nl\nog\ni\nca\nl\norchem\ni\nca\nl\nma\nt\ner\ni\na\nl\ns\n,\nconcep\nt\nsand\ni\ndeas\n;\nand(e)personne\nl\ni\nnforma\nt\ni\non\n,\ni\nnc\nl\nud\ni\nngpersonne\nl\nl\ni\ns\nt\ns\n,\nrep or\nt\ni\nngororgan\ni\nza\nt\ni\nona\nl\ns\nt\nruc\nt\nure\n,\nre sum es\n,\npersonne\nl\nda\nt\na\n,\ncompensa\nt\ni\nons\nt\nruc\nt\nure\n,\nperformanceeva\nl\nua\nt\ni\nonsand\nt\nerm\ni\nna\nt\ni\nonarrangemen\nt\nsordocumen\nt\ns\n.\nPropr\ni\ne\nt\nary5\n.\nDev e\nl\nopmen\nt\ns\n.\nIherebyass\ni\ngnand\nt\nransferInforma\nt\ni\non(I)\ni\nnforma\nt\ni\nonCompanyfrom\ni\nnc\nl\nud es\n,\nw\ni\nt\nhou\nt\nl\ni\nm\ni\nt\na\nt\ni\non\n,\nand\n,\nt\no\nt\nheex\nt\nen\nt\nanysuchass\ni\ngnmen\nt\ncanno\nt\nbemadea\nt\npresen\nt\n,\nw\ni\nl\nl\nass\ni\ngnand\nt\nra ns fer\n,\nt\no\nt\nheCompanyand\ni\nt\nssuccessorsandass\ni\ngns\n,\na\nl\nl\nmyr\ni\ngh\nt\n,\nt\ni\nt\nl\neand\ni\nn\nt\ne res\nt\ni\nnand\nt\noa\nl\nl\nDeve\nl\nopmen\nt\ns\nt\nha\nt\n:\n(a)are crea\nt\ned\n,\nde ve\nl\nop ed\n,\nma de\n,\nconce\ni\nvedorreduced\nt\noprac\nt\ni\ncebyme(a\nl\noneor\nj\no\ni\nn\nt\nl\nyw\ni\nt\nhrece\ni\nved\ni\nnconf\ni\ndenceby\nt\nhe\ni\nt\nscus\nt\nomersorsupp\nl\ni\nersoro\nt\nher\nt\nh\ni\nrdpar\nt\ni\nes\n,\nand(2)a\nl\nl\nb\ni\no\nl\nog\ni\nca\nl\norchem\ni\nca\nl\nma\nt\ner\ni\na\nl\nsando\nt\nher\nt\nang\ni\nb\nl\neembod\ni\nmen\nt\nsof\nt\nhe\nPropr\ni\ne\nt\nary Info rm a\nt\ni\non\n.\no\nt\nhers)orundermyd\ni\nrec\nt\ni\nonRecogn\ni\nt\ni\nonofCompany\n'\nsR\ni\ngh\nt\ns\n.\nIw\ni\nl\nl\n(co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n"conce\ni\nved")dur\ni\nng\nt\nheper\ni\nodofmyemp\nl\noymen\nt\nands\ni\nx (6)mon\nt\nhs\nt\nhereaf\nt\nerand\nt\nha\nt\nre\nl\na\nt\ne\nt\no\nt\nhebus\ni\nnessof\nt\nheCompanyor\nt\noproduc\nt\ns\n,\nme\nt\nhodsorserv\ni\ncesbe\ni\nngresearched\n.\nde ve\nl\nop ed\n,\nman u fac\nt\nuredorso\nl\ndby\nt\nheCompany\n;\nor(b)resu\nl\nt\nfro m\nt\na sks ass\ni\ngned\nt\nomeby\nt\nheCompany\n;\nor(c)resu\nl\nt\nfro m\nt\nheuseofprem\ni\nses\n,\nPropr\ni\ne\nt\nary In form a\nt\ni\nonorpersona\nl\nproper\nt\ny(whe\nt\nher\nt\nang\ni\nb\nl\neor7no\nt\n,\na\nt\nany\nt\ni\nme\n,\nw\ni\nt\nhou\nt\nt\nheCompany\n'\nspr\ni\norwr\ni\nt\nt\nenperm\ni\nss\ni\non\n,\ne\ni\nt\nherdur\ni\nngoraf\nt\nermyemp\nl\noymen\nt\n,\nd\ni\nsc\nl\noseor\nt\nransferanyPropr\ni\ne\nt\naryInforma\nt\ni\non\nt\noanyoneou\nt\ns\ni\ndeof\nt\nheCompany\n,\noruscorperm\ni\nt\nt\nobeusedanyPropr\ni\ne\nt\nary Inf orm a\nt\ni\nonforanypurposeo\nt\nher\nt\nhan\nt\nheperformanceofmydu\nt\ni\nesasanemp\nl\noyeeof\nt\nheCompany\n.\nIw\ni\nl\nl\ncoopera\nt\new\ni\nt\nh\nt\nhe\nNO N-CO MI\n'\nITITION\n,\nNON-SOLJCIIATION\n,\nCONFIDENTIALITYANDASSIGNMENTAGREEMENT\ni\nn\nt\nang\ni\nb\nl\ne)owned\n,\nl\ni\ncensedor\nl\neasedby\nt\nheIunders\nt\nand\nt\nha\nt\nt\no\nt\nheex\nt\nen\nt\nt\nh\ni\nsAgreemen\nt\ni\nsrequ\ni\nred\nt\nobecons\nt\nrue d\ni\nnaccordancew\ni\nt\nh\nt\nhe\nl\nawsofanys\nt\na\nt\newh\ni\nchprec\nl\nudesarequ\ni\nrem en\nt\ni\nnanemp\nl\noyeeagreemen\nt\nt\no ass\ni\ngn cer\nt\na\ni\nnc\nl\nassesof\ni\nnven\nt\ni\nonsmadebyanemp\nl\noyee\n,\nt\nh\ni\nsSec\nt\ni\non5w\ni\nl\nl\nbe\ni\nn\nt\nerp re\nt\nedno\nt\nt\noapp\nl\ny\nt\noany\ni\nnven\nt\ni\nonwh\ni\nchacour\nt\nru\nl\nesand\n/\nor\nt\nheCompanyagreesfa\nl\nl\nsw\ni\nt\nh\ni\nnsuchc\nl\nass es\n.\nCompany(co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n'\n'\nCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns")\n,\nanda\nl\nl\npa\nt\nen\nt\nr\ni\ngh\nt\ns\n,\nt\nrademarks\n,\ncopyr\ni\ngh\nt\nsando\nt\nher\ni\nn\nt\ne\nl\nl\nec\nt\nua\nl\nproper\nt\nyr\ni\ngh\nt\ns\ni\nna\nl\nl\nco un\nt\nr\ni\nesand\nt\nerr\ni\nt\nor\ni\neswor\nl\ndw\ni\ndec\nl\na\ni\nm\ni\nng\n,\ncover\ni\nngoro\nt\nh erw\ni\nsear\ni\ns\ni\nngfromorper\nt\na\ni\nn\ni\nng\nt\noCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns (co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n"In\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns")\n.\nIfur\nt\nheragree\nt\nha\nt\n"Company-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns\n'\n'\ni\nnc\nl\nude\n,\nw\ni\nt\nhou\nt\nl\ni\nm\ni\nt\na\nt\ni\non\n,\na\nl\nl\nDe ve\nl\nopmen\nt\ns\nt\nha\nt\n(\ni\n)wereconce\ni\nvedbymebeforemyemp\nl\noymen\nt\n,\n(\ni\ni\n)re\nl\na\nt\ne\nt\no\nt\nhebus\ni\nnessof\nt\nheCompanyor\nt\noproduc\nt\ns\n,\nme\nt\nhodsorserv\ni\nces be\ni\nngresearched\n,\ndeve\nl\noped\n,\nmanufac\nt\nuredorso\nl\ndby\nt\nheCompany\n,\nand(\ni\ni\ni\n)wereno\nt\nsub\nj\nec\nt\nt\noanob\nl\ni\nga\nt\ni\non\nt\noass\ni\ngn\nt\noano\nt\nheren\nt\ni\nt\ny\n.\nwhenconce\ni\nved\n.\nIw\ni\nl\nl\nmakefu\nl\nl\nandpromp\nt\nd\ni\nsc\nl\nos ure\nt\no\nt\nheCompanyofa\nl\nl\nCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns\n,\nas we\nl\nl\nasa\nl\nl\no\nt\nherDeve\nl\nopmen\nt\nsconce\ni\nvedbymedur\ni\nng\nt\nheper\ni\nodofmyemp\nl\noymen\nt\nands\ni\nx (6)6\n.\nDocumen\nt\nsandO\nt\nherMa\nt\ner\ni\na\nl\ns\n.\nIw\ni\nl\nl\nkeepandma\ni\nn\nt\na\ni\nnadequa\nt\neandcurren\nt\nrecordsofa\nl\nl\nPropr\ni\ne\nt\naryInforma\nt\ni\nonandCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\nsconce\ni\nvedbyme\n,\nwh\ni\nchrecordsw\ni\nl\nl\nbeava\ni\nl\nab\nl\ne\nt\noandrema\ni\nn\nt\nheso\nl\neproper\nt\nyof\nt\nheCompanya\nt\na\nl\nl\nt\ni\nmes\n.\nmemoranda\n,\nrepor\nt\ns\n,\nA\nl\nl\nf\ni\nl\nes\n,\nl\ne\nt\nt\ners\n,\nno\nt\nes\n,\nrecords\n,\nda\nt\na\n,\nske\nt\nch es\n,\nd raw\ni\nngs\n,\nno\nt\nebooks\n,\nl\nayou\nt\ns\n,\nchar\nt\ns\n,\nquo\nt\na\nt\ni\nonsandpropos_a\nl\ns\n,\nspec\ni\nf\ni\nca\nt\ni\nonshee\nt\ns\n,\nprogram\nl\ni\ns\nt\ni\nngs\n,\nb\nl\nueprm\nt\ns\n,\nmode\nl\ns\n,\npro\nt\no\nt\nyp es\n,\nma\nt\ner\ni\na\nl\nsoro\nt\nherwr\ni\nt\nt\nen\n,\npho\nt\nograph\ni\ncoro\nt\nher\nt\nang\ni\nb\nl\nema\nt\ner\ni\na\nl\ncon\nt\na\ni\nn\ni\nngorembody\ni\nngPropr\ni\ne\nt\naryInforma\nt\ni\non\n,\nwhe\nt\nhercrea\nt\nedbymeoro\nt\nhe rs\n,\nwh\ni\nchcome\ni\nn\nt\nomycus\nt\nodyorpossess\ni\non\n,\nare\nt\nheexc\nl\nus\ni\nve proper\nt\nyof\nt\nheCompany\nt\nobeusedbymeon\nl\ny\ni\nn\nt\nheperformanceofmydu\nt\ni\nesfor\nt\nheCompany\n.\nIn\nt\nheeven\nt\nof\nt\nhe\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\nforanyreason\n,\nIw\ni\nl\nl\nde\nl\ni\nver\nt\no\nt\nheCompanya\nl\nl\nof\nt\nhe fore go\ni\nng\n,\nanda\nl\nl\no\nt\nherma\nt\ner\ni\na\nl\nsofanyna\nt\nureper\nt\na\ni\nn\ni\nng\nt\no\nt\nhePropr\ni\ne\nt\nary In form a\nt\ni\nonof\nt\nheCompanyand\nt\nomywork\n,\nandw\ni\nl\nl\nno\nt\nt\nakeorkeep\ni\nnmypossess\ni\nonanyof\nt\nhe fore go\ni\nngoranycop\ni\nes\n.\nAnyproper\nt\nys\ni\nt\nua\nt\nedon\nt\nheCompany\n'\nsprem\ni\nsesandownedby\nt\nheCompany\n,\ni\nnc\nl\nud\ni\nng\nl\nabora\nt\noryspace\n,\ncompu\nt\ners\n,\nd\ni\nsksando\nt\nhers\nt\noragemed\ni\na\n,\nf\ni\nl\ni\nngcab\ni\nne\nt\nsoro\nt\nherworkareas\n,\ni\nssub\nj\nec\nt\nt\no\ni\nnspec\nt\ni\nonby\nt\nheCompanya\nt\nany\nt\ni\nmew\ni\nt\nhorw\ni\nt\nhou\nt\nno\nt\ni\nce\n.\nmon\nt\nhs\nt\nhereaf\nt\ner\n.\nIacknow\nl\nedge\nt\nha\nt\na\nl\nl\nworkperformedbymeasanemp\nl\noyeeof\nt\nheCompany\ni\nsona"work\nt\norh\ni\nre"bas\ni\ns\n.\nIherebywa\ni\nvea\nl\nl\nc\nl\na\ni\nms\nt\noanymora\nl\nr\ni\ngh\nt\nsoro\nt\nherspec\ni\na\nl\nr\ni\ngh\nt\nswh\ni\nchImayhaveoraccrue\ni\nnanyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns\n.\nd\ni\nscover\ni\nes\n,\n'\n'\nDeve\nl\nopmen\nt\ns"mean\ni\nnv en\nt\ni\nons\n,\ndes\ni\ngns\n,\ndeve\nl\nopmen\nt\ns\n,\nme\nt\nhods\n,\nb\ni\no\nl\nog\ni\nca\nl\nda\nt\nabases\n,\nmod\ni\nf\ni\nca\nt\ni\nons\n,\ni\nmprovemen\nt\ns\n,\nprocesses\n,\norchem\ni\nca\nl\nma\nt\ner\ni\na\nl\ns\n,\na\nl\ngor\ni\nt\nhms\n,\ncompu\nt\nerprograms\n,\nfo rmu\nl\nae\n,\nt\nechn\ni\nques\n,\nt\nradesecre\nt\ns\n,\ngra ph\ni\ncsor\ni\nmages\n,\naud\ni\noorv\ni\nsua\nl\nworks\n,\nando\nt\nherworksofau\nt\nho rsh\ni\np\n.\nToprec\nl\nudeanyposs\ni\nb\nl\neuncer\nt\na\ni\nn\nt\ny\n,\nIhavese\nt\nfor\nt\nhonAppend\ni\nxAa\nt\nt\nachedhere\nt\noacomp\nl\ne\nt\ne\nl\ni\ns\nt\nofmebeforemyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\nsconce\ni\nvedbyemp\nl\noymen\nt\nt\nha\nt\nareno\nt\nDeve\nl\nopmen\nt\ns("Pr\ni\norInven\nt\ni\nons\n'\n'\n)\n.\nIhavea\nl\nso\nl\ni\ns\nt\nedonAppend\ni\nxAa\nl\nl\npa\nt\nen\nt\nr\ni\ngh\nt\nsofwh\ni\nchIamanEnforcemen\nt\nofIn\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\ny7\n.\ni\nnven\nt\nor\n,\no\nt\nher\nt\nhan\nt\nhosecon\nt\na\ni\nnedw\ni\nt\nh\ni\nnR\ni\ngh\nt\ns\n.\nIw\ni\nl\nl\ncoopera\nt\nefu\nl\nl\nyw\ni\nt\nh\nt\nheCompany\n,\nbo\nt\nhdur\ni\nngandaf\nt\nermyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nhe In\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns ("O\nt\nherPa\nt\nen\nt\nR\ni\ngh\nt\ns")\n.\nIfnosuchd\ni\nsc\nl\nosure\ni\nsa\nt\nt\nached\n,\nIrepresen\nt\nt\nha\nt\nt\nherearenoPr\ni\norInven\nt\ni\nonsorO\nt\nherPa\nt\nen\nt\nR\ni\ngh\nt\ns\n.\nIf\n,\ni\nnhecourseofmyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompany\n,\nImcorpora\nt\neaPr\ni\norInven\nt\ni\non\ni\nn\nt\noaCompanyproduc\nt\n,\nprocessorresearchordeve\nl\nopmen\nt\nprogramoro\nt\nherworkdonefor\nt\nheCompany\n,\nIherebygran\nt\nt\no\nt\nheCompanyanonexc\nl\nus\ni\nve\n,\nroy a\nl\nt\ny-\nt\nree\n,\nfu\nl\nl\nvpa\ni\nd-up\n,\ni\nrrev o cab\nl\ne\n,\nperpe\nt\nua\nl\n,\nwor\nl\ndw\ni\nde\nl\ni\ncens(w\ni\nt\nh\nt\nhefu\nl\nl\nr\ni\ngh\nt\nt\nosub\nl\ni\ncense\nt\nhroughmu\nl\nt\ni\np\nl\ne\nt\n1e rs)\nt\nomake\n,\nhavemade\n.\nmod\ni\nfy\n.\nuse\n,\nofferforsa\nl\ne\n.\nCompany\n,\nw\ni\nt\nhrespec\nt\nt\no\nt\nheprocuremen\nt\n,\nma\ni\nn\nt\nenanceandenforcemen\nt\nof In\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns\n,\naswe\nl\nl\nasa\nl\nl\no\nt\nherpa\nt\nen\nt\nr\ni\ngh\nt\ns\n,\nt\nrademarks\n,\ncopyr\ni\ngh\nt\nsando\nt\nher\ni\nn\nt\ne\nl\nl\nec\nt\nua\nl\nproper\nt\nyr\ni\ngh\nt\ns\ni\nna\nl\nl\nco un\nt\nr\ni\nesand\nt\nerr\ni\nt\nor\ni\neswor\nl\ndw\ni\ndeownedbvor\nl\ni\ncensed\nt\no\nt\nheCompany\n.\nIw\ni\nl\nl\ns\ni\ngn\n,\nbo\nt\nhdur\ni\nngandaf\nt\ner\nt\nhe\nt\nermof\nt\nh\ni\nsAgreemen\nt\n,\na\nl\nl\npapers\n,\ni\nnc\nl\nud\ni\nngcopyr\ni\ngh\nt\napp\nl\ni\nca\nt\ni\nons\n,\npa\nt\nen\nt\napp\nl\ni\nca\nt\ni\nons\n,\npr\ni\nor\ni\nt\nyr\ni\ngh\nt\ns\n,\nCompanymaydec\nl\nara\nt\ni\nons\n.\noa\nt\nhs\n,\nass\ni\ngnmen\nt\nsofandpowersofa\nt\nt\norney\n,\nwh\ni\nch\nt\nhe\ni\nmp or\nt\nandse\nl\nl\nsuchPr\ni\norInven\nt\ni\non\n.\ndeemnecessaryordes\ni\nrab\nl\ne\ni\nnorder\nt\no pro\nt\nec\nt\ni\nt\nsr\ni\ngh\nt\nsand\ni\nn\nt\nere s\nt\ns\ni\nnanyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\norIn\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns\n.\nIf\nt\nheCompany\ni\nsunab\nl\ne\n,\naf\nt\nerreasonab\nl\neeffor\nt\n,\nt\nosecuremys\ni\ngna\nt\nureonanysuchpapers\n,\nIhereby\ni\nrrevocab\nl\nydes\ni\ngna\nt\neandappo\ni\nn\nt\neachoff\ni\ncerof\nt\nheNo\nt\nw\ni\nt\nhs\nt\nand\ni\nng\nt\nheforego\ni\nng\n.\nIw\ni\nl\nl\nno\nt\ni\nncorpora\nt\ne\n,\norperm\ni\nt\nt\nobe\ni\nncorpora\nt\ned\n,\nPr\ni\norInven\nt\ni\nons\ni\nnanyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\nw\ni\nt\nhou\nt\nt\nheCompany\n'\nspr\ni\norwr\ni\nt\nt\nenconsen\nt\n.\n2\nNON-COMPETITION\n,\nNON-SOLICITATION\n,\nCONFIDENTIALITYANDASSIGNMENTAGREEMENTsuchagreemen\nt\nsorregard\ni\nng\nt\nheconf\ni\nden\nt\ni\na\nl\nna\nt\nureofsuchwork\n.\nIagree\nt\nocomp\nl\nyw\ni\nt\nhanysuchob\nl\ni\nga\nt\ni\nonsorres\nt\nr\ni\nc\nt\ni\nonsupon\nt\nhed\ni\nrec\nt\ni\nonof\nt\nheCompany\n.\nInadd\ni\nt\ni\non\nt\no\nt\nher\ni\ngh\nt\nsass\ni\ngnedunderSec\nt\ni\non5\n,\nIa\nl\nso ass\ni\ngn\nt\no\nt\nheCompany(oranyof\ni\nt\nsnom\ni\nnees)a\nl\nl\nr\ni\ngh\nt\nswh\ni\nchIhaveoracqu\ni\nred\ni\nnanyDeve\nl\nopmen\nt\ns\n,\nfu\nl\nl\nt\ni\nt\nl\ne\nt\nowh\ni\nch\ni\nsrequ\ni\nred\nt\nobe\ni\nn\nt\nhe Un\ni\nt\nedS\nt\na\nt\nesunderanycon\nt\nrac\nt\nbe\nt\nwe en\nt\nheCompanyand\nt\nheUn\ni\nt\nedS\nt\na\nt\nesoranyof\ni\nt\nsagenc\ni\nes\n.\nCompanyasmyagen\nt\nanda\nt\nt\norney-\ni\nn -fac\nt\nt\noexecu\nt\neanysuchpapersonmybeha\nl\nf\n.\nand\nt\no\nt\nakeanyanda\nl\nl\nac\nt\ni\nonsas\nt\nheCompanymaydeemnecessaryordes\ni\nrab\nl\ne\ni\nnorder\nt\nopro\nt\nec\nt\ni\nt\nsr\ni\ngh\nt\nsand\ni\nn\nt\nere s\nt\ns\ni\nn\nt\nhesame\n.\n8\n.\nNon-Compe\nt\ni\nt\ni\nonandNon-So\nl\ni\nc\ni\nt\na\nt\ni\non\n.\nIn ord er\nt\no pro\nt\nec\nt\nt\nheCompany\n'\nsPropr\ni\ne\nt\naryInforma\nt\ni\nonandgoodw\ni\nl\nl\n,\ndur\ni\nngmyemp\nl\noymen\nt\nandforaper\ni\nodof\nt\nwe\nl\nve(12)mon\nt\nhsfo\nl\nl\now\ni\nng\nt\nhe\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\nforanyreason(\nt\nhe"Res\nt\nr\ni\nc\nt\nedPer\ni\nod")\n,\nIw\ni\nl\nl\nno\nt\nd\ni\nrec\nt\nl\nyor\ni\nnd\ni\nrec\nt\nl\ny\n,\nwhe\nt\nherasowner\n,\npar\nt\nner\n,\nshareho\nl\nder\n,\nd\ni\nrec\nt\nor\n,\nconsu\nl\nt\nan\nt\n,\nagen\nt\n,\nemp\nl\noyee\n,\nco-ven\nt\nureroro\nt\nh erw\ni\nse\n,\nengage\n,\npar\nt\ni\nc\ni\npa\nt\neor\ni\nnves\nt\ni\nnanybus\ni\nnessac\nt\ni\nv\ni\nt\nyanywhere\ni\nn\nt\nhewor\nl\nd\nt\nha\nt\ndeve\nl\nops\n.\nmanufac\nt\nuresormarke\nt\nsproduc\nt\nsorserv\ni\nces\ni\nn\nt\nheCompany\n'\nsF\ni\ne\nl\ndofBus\ni\nness(asdef\ni\nnedbe\nl\now)\n.\nor\nt\nha\nt\ndeve\nl\nopsormanufac\nt\nuresanyproduc\nt\ns\n.\norperformsanyserv\ni\nces\n,\nt\nha\nt\nareo\nt\nh erw\ni\nsecompe\nt\ni\nt\ni\nvew\ni\nt\nh\nt\nheproduc\nt\nsorserv\ni\ncesof\nt\nheCompany\n,\norproduc\nt\nsorserv\ni\nces\nt\nha\nt\nt\nheCompanyhasunderdeve\nl\nopmen\nt\nor\nt\nha\nt\nwe re\nt\nhesub\nj\nec\nt\nofac\nt\ni\nvep\nl\nann\ni\nngdur\ni\nng\nt\nhe\nl\nas\nt\nt\nwe\nl\nve(12)mon\nt\nhsofmyemp\nl\noymen\nt\n;\npro v\ni\nded\nt\nha\nt\nt\nh\ni\nsw\ni\nl\nl\nno\nt\np roh\ni\nb\ni\nt\nanyposs\ni\nb\nl\ne\ni\nnves\nt\nmen\nt\ni\nnpub\nl\ni\nc\nl\ny\nt\nradeds\nt\nockofacompanyrepresen\nt\ni\nng\nl\ness\nt\nhanonepercen\nt\nof\nt\nhes\nt\nockofsuchcompany\n.\nIn\nadd\ni\nt\ni\non\n,\ndur\ni\nng\nt\nheRes\nt\nr\ni\nc\nt\nedPer\ni\nod\n,\nIw\ni\nl\nl\nno\nt\n,\nd\ni\nrec\nt\nl\nyor\ni\nnd\ni\nrec\nt\nl\ny\n,\ni\nnanymanner\n,\no\nt\nher\nt\nhanfor\nt\nhebenef\ni\nt\nof\nt\nheCompany\n,\n(a)ca\nl\nl\nupon\n,\nso\nl\ni\nc\ni\nt\n,\nd\ni\nver\nt\nor\nt\nakeawayanyof\nt\nhecus\nt\nomers\n,\nbus\ni\nnessorprospec\nt\ni\nvecus\nt\nomersof\nt\nheCompanyoranyof\ni\nt\nssupp\nl\ni\ners\n,\nand\n/\nor(b)so\nl\ni\nc\ni\nt\n,\nen\nt\ni\nceora\nt\nt\nemp\nt\nt\nopersuadeanyo\nt\nheremp\nl\noyeeorconsu\nl\nt\nan\nt\nof\nt\nheCompany\nt\no\nl\neave\nt\nhe serv\ni\ncesof\nt\nheCompanyforanyreason\n.\nIacknow\nl\nedgeandagree\nt\nha\nt\ni\nfIv\ni\no\nl\na\nt\neanyof\nt\nheprov\ni\ns\ni\nonsof\nt\nh\ni\nsSec\nt\ni\non8\n,\nt\nherunn\ni\nngof\nt\nhe Res\nt\nr\ni\nc\nt\nedPer\ni\nodw\ni\nl\nl\nbe ex\nt\nendedby\nt\nhe\nt\ni\nmedur\ni\nng wh\ni\nchIengage\ni\nnsuchv\ni\no\nl\na\nt\ni\non (s)\n.\nForpurposesof\nt\nh\ni\nsSec\nt\ni\non\n,\nt\nheCompany\n'\nsF\ni\ne\nl\ndofBus\ni\nn ess sha\nl\nl\nmeanresearch\n.\nd\ni\nscovery\n,\ndes\ni\ngn\n,\nmanufac\nt\nure\n,\nI0\n.\nPr\ni\norAgreemen\nt\ns\n.\nIherebyrepresen\nt\nt\nha\nt\n,\nexcep\nt\nasIhavefu\nl\nl\nyd\ni\nsc\nl\nosedprev\ni\nous\nl\ny\ni\nnwr\ni\nt\ni\nng\nt\no\nt\nheCompany\n,\nIamno\nt\nboundby\nt\nhe\nt\nermsofanyagreemen\nt\nw\ni\nt\nhanyprev\ni\nousemp\nl\noyeroro\nt\nherpar\nt\ny\nt\norefra\ni\nn from us\ni\nngord\ni\nsc\nl\nos\ni\nngany\nt\nradesecre\nt\norconf\ni\nden\nt\ni\na\nl\norpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\ni\nn\nt\nhecourseofmyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompanyor\nt\nore\nt\nra\ni\nnfromcompe\nt\ni\nng\n,\nd\ni\nrec\nt\nl\nyor\ni\nnd\ni\nrec\nt\nl\ny\n,\nw\ni\nt\nh\nt\nhebus\ni\nnessofsuchprev\ni\nousemp\nl\noyeroranyo\nt\nherpar\nt\ny\n.\nIfur\nt\nherrepresen\nt\nt\nha\nt\nmyperformanceofa\nl\nl\nt\nhe\nt\nermsof\nt\nh\ni\nsAgreemen\nt\nasanemp\nl\noyeeof\nt\nheCompanydoesno\nt\nandw\ni\nl\nl\nno\nt\nbreachanyagreemen\nt\nt\nokeep\ni\nnconf\ni\ndencepropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n,\nknow\nl\nedgeorda\nt\naacqu\ni\nredbyme\ni\nnconf\ni\ndenceor\ni\nn\nt\nrus\nt\npr\ni\nor\nt\nomyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompany\n.\nIw\ni\nl\nl\nno\nt\nd\ni\nsc\nl\nose\nt\no\nt\nheCompanyor\ni\nnduce\nt\nheCompany\nt\nouseanyconf\ni\nden\nt\ni\na\nl\norpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\nonorma\nt\ner\ni\na\nl\nbe\nl\nong\ni\nng\nt\noanyprev\ni\nousemp\nl\noyeroro\nt\nh ers\n.\nII\n.\nRem ed\ni\nesUponBreach\n.\nIunders\nt\nand\nt\nha\nt\nt\nhe res\nt\nr\ni\nc\nt\ni\nonscon\nt\na\ni\nned\ni\nn\nt\nh\ni\nsAgreemen\nt\narenecessaryfor\nt\nhepro\nt\nec\nt\ni\non of\nt\nhebus\ni\nnessandgoodw\ni\nl\nl\nof\nt\nheCompanyandIcons\ni\nder\nt\nhem\nt\nobereasonab\nl\neforsuch\npu rp ose\n.\nAnybreachof\nt\nh\ni\nsAgreemen\nt\ni\ns\nl\ni\nke\nl\ny\nt\nocause\nt\nheCompanysubs\nt\nan\nt\ni\na\nl\nand\ni\nrrevocab\nl\nedamageand\nt\nherefore\n,\ni\nn\nt\nheeven\nt\nofsuchbreach\n,\nt\nheCompany\n,\ni\nnadd\ni\nt\ni\non\nt\nosucho\nt\nherremed\ni\neswh\ni\nchmaybeava\ni\nl\nab\nl\ne\n,\nw\ni\nl\nl\nbeen\nt\ni\nt\nl\ned\nt\nospec\ni\nf\ni\ncperformanceando\nt\nher\ni\nn\nj\nunc\nt\ni\nve re\nl\ni\nef\n.\n12\n.\nUse of Vo\ni\nce\n,\nImageandL\ni\nkeness\n.\nIg\ni\nvec\nl\ni\nn\ni\nca\nl\ndeve\nl\nopmen\nt\n,\nsee k\ni\nngofregu\nl\na\nt\nory\nt\nheCompanyperm\ni\nss\ni\non\nt\nousemy vo\ni\nce\n,\ni\nmageor\nl\ni\nkeness\n,\nw\ni\nt\nhorw\ni\nt\nhou\nt\nus\ni\nngmyname\n,\nfor\nt\nhepurposesofadver\nt\ni\ns\ni\nngandpromo\nt\ni\nng\nt\nheCompany\n,\norforo\nt\nherpurposesdeemedappropr\ni\na\nt\neby\nt\nheCompany\ni\nn\ni\nt\nsreasonab\nl\ned\ni\nsc re\nt\ni\non\n,\nexcep\nt\nt\no\nt\nheex\nt\nen\nt\nexpress\nl\nyproh\ni\nb\ni\nt\nedby\nl\naw\n.\napprova\nl\ns\n,\nma rke\nt\ni\nngand\n/\norcommerc\ni\na\nl\ni\nza\nt\ni\nonof(\ni\n)an\nt\ni\nbod\ni\nes\n,\n(\ni\ni\n)an\nt\ni\ngensor(\ni\ni\ni\n)eng\ni\nneeredpro\nt\ne\ni\nn-oram\ni\nnoac\ni\nd-basedagen\nt\nsfora\nl\nl\nusesand\ni\nnd\ni\nca\nt\ni\nons\ni\nnhumansoran\ni\nma\nl\ns\nt\nha\nt\nac\nt\nt\nhroughmodu\nl\na\nt\ni\non(\ni\nnc\nl\nud\ni\nnge\ni\nt\nherasagon\ni\ns\nt\nsoran\nt\nagon\ni\ns\nt\ns)of\nt\nhe ac\nt\ni\nv\ni\nt\nyofpro\nt\ne\ni\nngrow\nt\nh fac\nt\norsbe\nl\nong\ni\nng\nt\no\nt\nheTransform\ni\nngGrow\nt\nhFac\nt\no r-su pe rfam\ni\nl\ny\n.\n13\n.\nPub\nl\ni\nca\nt\ni\nonsandPub\nl\ni\ncS\nt\na\nt\nem en\nt\ns\n.\nIw\ni\nl\nl\nob\nt\na\ni\nn\nt\nheCompany\n'\nswr\ni\nt\nt\nenapprova\nl\nbeforepub\nl\ni\nsh\ni\nngorsubm\ni\nt\nt\ni\nngforpub\nl\ni\nca\nt\ni\nonanyma\nt\ner\ni\na\nl\nt\nha\nt\nre\nl\na\nt\nes\nt\nomyworka\nt\nt\nheCompanyand\n/\nor\ni\nncorpora\nt\nesanyPropr\ni\ne\nt\naryInforma\nt\ni\non\n.\nToensure\nt\nha\nt\nt\nheCompanyde\nl\ni\nversacons\ni\ns\nt\nen\nt\nmessageabou\nt\ni\nt\nsproduc\nt\ns\n,\ns erv\ni\ncesandopera\nt\ni\nons\nt\no\nt\nhepub\nl\ni\nc\n,\n9\n.\nGovernmen\nt\nCon\nt\nrac\nt\ns\n.\nIacknow\nl\nedge\nt\nha\nt\nt\nheCompanymayhave\nt\nrom\nt\ni\nme\nt\no\nt\ni\nmeagreemen\nt\nsw\ni\nt\nho\nt\nherpersonsorw\ni\nt\nh\nt\nheUn\ni\nt\nedS\nt\na\nt\nesGovernmen\nt\nor\ni\nt\nsagenc\ni\neswh\ni\nch\ni\nmposeob\nl\ni\nga\nt\ni\nonsorres\nt\nr\ni\nc\nt\ni\nonson\nt\nheCompanyregard\ni\nng\ni\nnven\nt\ni\nonsmadedur\ni\nng\nt\nhecourseofwork under3\n/\n\\n.\n)(>-COMPIIT!ION\n,\nNON-SOLICITATION\n,\nCONFIDINTIALITYANDASSIGNMENTAGREEMENTandfur\nt\nher\ni\nnrecogm\nt\nwn\nt\nha\nt\nevenpos\ni\nt\ni\nves\nt\na\nt\nem en\nt\nsmayhaveade\nt\nr\ni\nmen\nt\na\nl\ne ffec\nt\non\nt\nheCompany\ni\nncer\nt\na\ni\nnsecur\ni\nt\ni\nes\nt\nransac\nt\ni\nonsando\nt\nhercon\nt\nex\nt\ns\n,\nanys\nt\na\nt\nemen\nt\nabou\nt\nt\nheCompanywh\ni\nchIcrea\nt\ne\n,\npub\nl\ni\nshorpos\nt\ndur\ni\nngmyper\ni\nodofemp\nl\noymen\nt\nandfors\ni\nx (6)mon\nt\nhs\nt\nhereaf\nt\ner\n,\nonanymed\ni\naaccess\ni\nb\nl\neby\nt\nhepub\nl\ni\nc\n,\ni\nnc\nl\nud\ni\nng bu\nt\nno\nt\nl\ni\nm\ni\nt\ned\nt\noe\nl\nec\nt\nron\ni\ncbu\nl\nl\ne\nt\ni\nnboardsandIn\nt\nern e\nt\nbasedcha\nt\nrooms\n,\nmus\nt\nf\ni\nrs\nt\nberev\ni\newedandapprovedbyanoff\ni\ncerof\nt\nheCompanybefore\ni\nt\ni\nsre\nl\neased\ni\nn\nt\nhepub\nl\ni\ncdoma\ni\nn\n.\nof\nt\nh\ni\nsAgreemen\nt\nt\noanyprospec\nt\ni\nve emp\nl\noyer\n,\npar\nt\nnerorco-ven\nt\nurerpr\ni\nor\nt\noen\nt\ner\ni\nng\ni\nn\nt\noabus\ni\nnessre\nl\na\nt\ni\nonsh\ni\npw\ni\nt\nhsuchpersonoren\nt\ni\nt\ny\n,\nand(\ni\ni\n)no\nt\ni\nfY\nt\nheCompanyofanysuchbus\ni\nnessre\nl\na\nt\ni\non sh\ni\np\n.\n18\n.\nSeverab\ni\nl\ni\nt\ny\n.\nIncaseanyprov\ni\ns\ni\nons(orpor\nt\ni\nons\nt\nhereof)con\nt\na\ni\nned\ni\nn\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\n,\nforanyreason\n,\nbehe\nl\nd\ni\nnva\nl\ni\nd\n,\ni\nl\nl\nega\nl\norunenforceab\nl\ne\ni\nnanyrespec\nt\n,\nsuch\ni\nnva\nl\ni\nd\ni\nt\ny\n,\ni\nl\nl\nega\nl\ni\nt\nyorunenforceab\ni\nl\ni\nt\nyw\ni\nl\nl\nno\nt\naffe c\nt\nt\nheo\nt\nherprov\ni\ns\ni\nonsof\nt\nh\ni\nsAgreemen\nt\n,\nand\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\nbecons\nt\nruedas\ni\nfsuch\ni\nnva\nl\ni\nd\n,\ni\nl\nl\nega\nl\norunenforceab\nl\neprov\ni\ns\ni\nonhadneverbeencon\nt\na\ni\nnedJ4\n.\nNoEmp\nl\noymen\nt\nOb\nl\ni\nga\nt\ni\non\n.\nIunders\nt\nand\nt\nha\nt\nt\nh\ni\nsAgreemen\nt\ndoesno\nt\nc rea\nt\neanob\nl\ni\nga\nt\ni\nonon\nt\nheCompanyoranyo\nt\nherperson\nt\nocon\nt\ni\nnuemyhere\ni\nn\n.\nIf\n,\nmoreover\n,\nanyoneormoreof\nt\nheprov\ni\ns\ni\nonscon\nt\na\ni\nned\ni\nn\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\nforanyreasonbehe\nl\nd\nt\nobeexcess\ni\nve\nl\nybroadas\nt\nodura\nt\ni\non\n,\ngeograph\ni\nca\nl\nscope\n,\nac\nt\ni\nv\ni\nt\nyorsub\nj\nec\nt\n,\ni\nt\nw\ni\nl\nl\nbecons\nt\nruedby\nl\ni\nm\ni\nt\ni\nngandreduc\ni\nng\ni\nt\n,\nsoas\nt\nobeenforceab\nl\ne\nt\no\nt\nheex\nt\nen\nt\ncompa\nt\ni\nb\nl\new\ni\nt\nh\nt\nheapp\nl\ni\ncab\nl\ne\nl\nawas\ni\nt\nw\ni\nl\nl\nt\nhenappear\n.\nemp\nl\noymen\nt\n.\nIacknow\nl\nedge\nt\nha\nt\n,\nsub\nj\nec\nt\nt\no\nt\nhe\nt\nermsof\nt\nheEmp\nl\noymen\nt\nAgreemen\nt\nt\nowh\ni\nch\nt\nh\ni\nsAgreemen\nt\ni\nsa\nt\nt\nachedasExh\ni\nb\ni\nt\nA\n,\nmyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompany\ni\nsa\nt\nw\ni\nl\nl\nand\nt\nhereforemaybe\nt\nerm\ni\nna\nt\ned by\nt\nheCompanyormea\nt\nany\nt\ni\nmeandforanyreason\n.\n19\n.\nEn\nt\ni\nreAgreemen\nt\n.\nTh\ni\nsAgreemen\nt\nSurv\ni\nva\nl\nandAss\ni\ngnmen\nt\nby\nt\nhe\nl\n5\n.\ncons\nt\ni\nt\nu\nt\nes\nt\nheen\nt\ni\nreandon\nl\nyagreemen\nt\nbe\nt\nwe en\nt\nheCompanyandmerespec\nt\ni\nng\nt\nhesub\nj\nec\nt\nma\nt\nt\nerhereof\n,\nandsupersedesa\nl\nl\npr\ni\noragreemen\nt\nsandCompany\n.\nIunders\nt\nand\nt\nha\nt\nmyob\nl\ni\nga\nt\ni\nonsunder\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\ncon\nt\ni\nnue\ni\nnaccordancew\ni\nt\nh\ni\nt\nsexpress\nt\nerm s reg ard\nl\nessofanychanges\ni\nnmy\nt\ni\nt\nl\ne\n,\npos\ni\nt\ni\non\n,\ndu\nt\ni\nes\n,\nsa\nl\nary\n,\ncompensa\nt\ni\nonorbenef\ni\nt\nsoro\nt\nher\nt\nermsandcond\ni\nt\ni\nonsofemp\nl\noymen\nt\n.\nIfur\nt\nherunders\nt\nand\nt\nha\nt\nmyob\nl\ni\nga\nt\ni\nonsunder\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\ncon\nt\ni\nnuefo\nl\nl\now\ni\nng\nt\nhe\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\nreg ard\nl\nessof\nt\nhemannerofsuch\nt\nerm\ni\nna\nt\ni\nonandw\ni\nl\nl\nbeb\ni\nnd\ni\nnguponmyhe\ni\nrs\n,\nexecu\nt\norsandadm\ni\nn\ni\ns\nt\nra\nt\nors\n.\nTheCompanyw\ni\nl\nl\nunders\nt\nand\ni\nngs\n,\nora\nl\norwr\ni\nt\nt\nen\n,\nbe\nt\nweenusconcern\ni\nngsuchsub\nj\nec\nt\nma\nt\nt\ner\n.\nNomod\ni\nf\ni\nca\nt\ni\non\n,\namendmen\nt\n,\nwa\ni\nveror\nt\nerm\ni\nna\nt\ni\nonof\nt\nh\ni\nsAgreemen\nt\norofanyprov\ni\ns\ni\nonhereofw\ni\nl\nl\nbeb\ni\nnd\ni\nng un\nl\ness mad e\ni\nnwr\ni\nt\ni\nngands\ni\ngnedbyanau\nt\nhor\ni\nzedoff\ni\ncerof\nt\nheCompany\n.\nFa\ni\nl\nure of\nt\nheCompany\nt\no\ni\nns\ni\ns\nt\nupons\nt\nr\ni\nc\nt\ncomp\nl\ni\nancew\ni\nt\nhanyof\nt\nhe\nt\ne rms\n,\ncovenan\nt\nsorcond\ni\nt\ni\nonshereofw\ni\nl\nl\nno\nt\nbedeemedawa\ni\nverofsuch\nt\ne rms\n,\ncovenan\nt\nsorcond\ni\nt\ni\nons\n.\n20\n.\nIn\nt\ne rpre\nt\na\nt\ni\non\n.\nTh\ni\nsAgreemen\nt\nw\ni\nl\nl\nbedeemed\nt\nobemadeanden\nt\nere d\ni\nn\nt\no\ni\nn\nt\nheCommonwea\nl\nt\nhofMassachuse\nt\nt\ns\n,\nandw\ni\nl\nl\ni\nna\nl\nl\nrespec\nt\nsbe\ni\nn\nt\nerp re\nt\ned\n,\nenforcedandgoverned under\nt\nhe\nl\nawsof\nt\nheCommonwea\nl\nt\nhofMassachuse\nt\nt\ns\n.\nIherebyagree\nt\noconsen\nt\nt\nopersona\nl\nj\nur\ni\nsd\ni\nc\nt\ni\nonof\nt\nhes\nt\na\nt\neandfedera\nl\ncour\nt\nss\ni\nt\nua\nt\nedw\ni\nt\nh\ni\nnSuffo\nl\nkCoun\nt\ny\n,\nMassachuse\nt\nt\nsforpurposesofenforc\ni\nng\nt\nh\ni\nsAgreemen\nt\n,\nandwa\ni\nveanyob\nj\nec\nt\ni\non\nt\nha\nt\nIm\ni\ngh\nt\nha ve\nt\nopersona\nl\nj\nur\ni\nsd\ni\nc\nt\ni\nonorvenue\ni\nn\nt\nhosecour\nt\ns\n.\nAsused\ni\nn\nt\nh\ni\nsAgreemen\nt\n,\n'\n'\ni\nnc\nl\nud\ni\nng"means"\ni\nnc\nl\nud\ni\nngbu\nt\nno\nt\nl\ni\nm\ni\nt\ned\nt\no"\n.\nhave\nt\nher\ni\ngh\nt\nt\noass\ni\ngnAff\ni\nl\ni\na\nt\nes\n,\nsuccessorsandconsen\nt\nt\nobeboundbyAgreemen\nt\nfor\nt\nhebenef\ni\nt\nt\nh\ni\nsAgreemen\nt\nt\no\ni\nt\nsass\ni\ngns\n.\nIexpress\nl\ny\nt\nheprov\ni\ns\ni\nonsof\nt\nh\ni\nsof\nt\nheCompanyoranyparen\nt\n,\nsubs\ni\nd\ni\naryorAff\ni\nl\ni\na\nt\ne\nt\nowhoseemp\nl\noyImaybe\nt\nransferredAgreemen\nt\nbe\nt\nran sfe r\n.\nw\ni\nt\nhou\nt\nt\nhenecess\ni\nt\ny\nt\nha\nt\nre-execu\nt\neda\nt\nt\nhe\nt\ni\nmeof\nt\nh\ni\nssuch16\n.\nEx\ni\nt\nIn\nt\nerv\ni\new\n.\nIfandwhenIdepar\nt\nfromrequ\ni\nred\nt\noa\nt\nt\nendanex\ni\nt\nt\nheCompany\n,\nImaybe\ni\nn\nt\nerv\ni\newands\ni\ngnan"Emp\nl\noyeeEx\ni\nt\nAcknow\nl\nedgemen\nt\n"\nt\no rea\nt\nl\ni\nrmmyaccep\nt\nanceandacknow\nl\nedgemen\nt\nof\nt\nheob\nl\ni\nga\nt\ni\nonsse\nt\nfor\nt\nh\ni\nn\nt\nh\ni\nsAgreemen\nt\n.\nFor\nt\nwe\nl\nve(12)mon\nt\nhsfo\nl\nl\now\ni\nng\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\n,\nIw\ni\nl\nl\nno\nt\ni\nfy\nt\nheCompanyofanychange\ni\nnmyaddressandofeach\n:\n,\nubsequen\nt\nemp\nl\noymen\nt\norbus\ni\nnessac\nt\ni\nVI\nt\ny\n,\ni\nnc\nl\nud\ni\nng\nt\nhenameandaddressofmyemp\nl\noyeroro\nt\nherpos\nt\n-Companyemp\nl\noymen\nt\np\nl\nansand\nt\nhe na\nt\nureofmyac\nt\ni\nv\ni\nt\ni\nes\n.\nJ7\n.\nD\ni\nsc\nl\nosuredur\ni\nng\nt\nheRes\nt\nr\ni\nc\nt\nedPer\ni\nod\n.\nDur\ni\nng\nt\nheRes\nt\nr\ni\nc\nt\nedPer\ni\nod\n,\nIw\ni\nl\nl\n(\ni\n)prov\ni\ndeacopy4\nIUNDERSTANDTHATTHISAGREEMENTAFFECTSIMPORTANTRIGHTS\n.\nBYUSINGBELOWICERTIFYTHATHIHAVEREASTHISAGREEMENTCAREFULLYANDSATISFIEDTHATIUNDERSTANDITCOMPLETELY\n.\nINWITNESSWHEREOF\n,\nt\nheunders\ni\ngnedhasexecu\nt\ned\nt\nh\ni\nsagreemen\nt\nas sca\nl\ned\ni\nns\nt\nrumen\nt\nasof\nt\nheda\nt\nese\nt\nfor\nt\nhbe\nl\now\n.\nS\ni\ngnedNageshMahan\nt\nrappa\nAPPENDIXATo\n:\nSc ho\nl\narRock\n,\nLLCFrom\n:\nNageshMahan\nt\nhappaDa\nt\ne\n:\nOc\nt\nober_\n,\n2012SUBJECT\n:\nPr\ni\norInven\nt\ni\nonsThefo\nl\nl\now\ni\nng\ni\nsacomp\nl\ne\nt\ne\nl\ni\ns\nt\nofa\nl\nl\ni\nnven\nt\ni\nonsor\ni\nmprovemen\nt\nsre\nl\nev an\nt\nt\no\nt\nhesub\nj\nec\nt\nma\nt\nt\nerofmyemp\nl\noymen\nt\nby\nt\nheCompany\nt\nha\nt\nhavebeenmadeorconce\ni\nvedorf\ni\nrs\nt\nred uc ed\nt\noprac\nt\ni\ncebymea\nl\noneor\nj\no\ni\nn\nt\nl\nyw\ni\nt\nho\nt\nherspr\ni\nor\nt\nomyengagemen\nt\nby\nt\nheCompany\n:\nXNo\ni\nnven\nt\ni\nonsor\ni\nmprovemen\nt\nsSeebe\nl\now\n:\nAdd\ni\nt\ni\nona\nl\nsh ee\nt\nsa\nt\nt\nachedThefo\nl\nl\now\ni\nng\ni\nsa\nl\ni\ns\nt\nofa\nl\nl\nUn\ni\nt\nedS\nt\na\nt\nespa\nt\nen\nt\nsandpa\nt\nen\nt\napp\nl\ni\nca\nt\ni\nons\ni\nnwh\ni\nchIhavebeennamedasan\ni\nnv en\nt\nor(no\nt\ne\nt\nha\nt\nfore\ni\ngncoun\nt\nerp ar\nt\nsweref\ni\nl\ned\ni\nna\nl\nl\nca ses\n,\nbu\nt\ns\nt\na\nt\nus\ni\nsno\nt\nknown\nt\nomeasof\nt\noday\n'\nsda\nt\ne)\n:\nNoneXSeebe\nl\now\n:\nIssu ed Pa\nt\nen\nt\ns7\n,\n144\n,\n9977\n,\n138\n,\n4926\n,\n884\n,\n7706\n,\n767\n,\n8886\n,\n750\n,\n1966\n,\n087\n,\n3235\n,\n681\n,\n568Ver\nt\neb ra\nt\neembryon\ni\ncpa\nt\nt\nern\ni\nng-\ni\nnduc\ni\nngpro\nt\ne\ni\nns\n,\ncompos\ni\nt\ni\nonsandusesre\nl\na\nt\ned\nt\nher\nt\noMe\nt\nhodof\nt\nrea\nt\ni\nng dopam\ni\nn erg\ni\ncandGABA-nerg\ni\ncd\ni\nsordersMe\nt\nhodsandcompos\ni\nt\ni\nonsfor\nt\nrea\nt\ni\nng orpreven\nt\ni\nngper\ni\nphera\nl\nneuropa\nt\nh\ni\nesNeuropro\nt\nec\nt\ni\nveme\nt\nhodsandreagen\nt\nsMe\nt\nhodsof\nt\nrea\nt\ni\nngd\ni\nsordersof\nt\nheeyeUseofneuregu\nl\ni\nnsasmodu\nl\na\nt\norsofce\nl\nl\nu\nl\narcommun\ni\nca\nt\ni\nonDev\ni\nceforde\nl\ni\nveryofsubs\nt\nancesandme\nt\nhodsofuse\nt\nhereofPa\nt\nen\nt\nApp\nl\ni\nca\nt\ni\nons20100144616200802210372007025436420070048286200402357392004022009620030162698Neuropro\nt\nec\nt\ni\nveme\nt\nhodsandreagen\nt\nsMe\nt\nhodsandcompos\ni\nt\ni\nonsfor\nt\nrea\nt\ni\nngd\ni\ns ord ers\ni\nnvo\nl\nv\ni\nngexc\ni\nt\no\nt\nox\ni\nc\ni\nt\nyMe\nt\nhodsandcompos\ni\nt\ni\nonsfor\nt\nrea\nt\ni\nngd\ni\nso rd ers\ni\nnvo\nl\nv\ni\nngexc\ni\nt\no\nt\nox\ni\nc\ni\nt\nyMe\nt\nhodof\nt\nrea\nt\ni\nngdopam\ni\nn erg\ni\ncandGABA-nerg\ni\ncd\ni\nsordersNeuropro\nt\nec\nt\ni\nveme\nt\nhodsandreagen\nt\nsMe\nt\nhodandcompos\ni\nt\ni\nons\nt\nor\nt\nrea\nt\ni\nngdopam\ni\nn erg\ni\ncandgabanerg\ni\ncd\ni\nsordersMETHODSANDCOMPOSITIONSFORTREATINGDOPAMINERGICANDGABA-NERGICDISORDERS20030I19729METHODOFTREATING\nDOPAMINERGICANDGABA-NERGJCDISORDERS\n20030083242METHODSANDCOMPOSITIONSFORTREATINGORPREVENTINGPERIPHERALNEUROPATHIESNEUREGULINSASMODULATORSOFCELLULARCOMMUNICATIONVERTEBRATEEMBRYONICPATTERNING-INDUCINGPROTEINS\n,\n2003004046520020045206COMPOSITIONSANDUSESRELATEDTHERTO	EX-10.10 11 a2235501zex-10_10.htm EX-10.10\nExhibit 10.10	EX-10.10 11 a2235501zex-10_10.htm EX-10.10\nExhibit 10.10	EX-10.10 11 a2235501zex-10 _10.htm EX-10 .10\nExhibit 10.10\nEXHIBITANon-Compe\nt\ni\nt\ni\non\n,\nNon-So\nl\ni\nc\ni\nt\na\nt\ni\non\n,\nConf\ni\nden\nt\ni\na\nl\ni\nt\nyandAss\ni\ngnmen\nt\nAgreemen\nt\nIncons\ni\nd era\nt\ni\nonandasacond\ni\nt\ni\nonofmyemp\nl\noymen\nt\nbyScho\nl\narRockLLC\n,\naDe\nl\naware\nl\ni\nm\ni\nt\ned\nl\ni\nab\ni\nl\ni\nt\nycompany(a\nl\nongw\ni\nt\nh\ni\nt\ns Aff\ni\nl\ni\na\nt\nes\nt\nhe"Company")\n,\nIherebyagreeasfo\nl\nl\nows\n:\nI\n.\nPropr\ni\ne\nt\naryInforma\nt\ni\non\n.\nIagree\nt\nha\nt\na\nl\nl\nCompanyandusemybes\nt\neffo r\nt\ns\nt\nopreven\nt\nt\nheunau\nt\nhor\ni\nzedd\ni\nsc\nl\nosureofa\nl\nl\nPropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n,\nwhe\nt\nherorno\nt\ni\nnwr\ni\nt\ni\nng\n,\nwhe\nt\nherorno\nt\nd\ni\nsc\nl\nosedbeforeoraf\nt\nerIwasf\ni\nrs\nt\nemp\nl\noyedby\nt\nheCompany\n,\nconcern\ni\nng\nt\nheCompany\n'\nsbus\ni\nn ess\n,\nt\nechno\nl\nogy\n,\nbus\ni\nnessre\nl\na\nt\ni\non sh\ni\npsorf\ni\nna nc\ni\na\nl\naff a\ni\nrs\nt\nha\nt\nt\nheCompanyhasno\nt\nre\nl\neased\nt\no\nt\nhegenera\nl\npub\nl\ni\nc (co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n"Propr\ni\ne\nt\naryInforma\nt\ni\non")\n,\nanda\nl\nl\nt\nang\ni\nb\nl\neembod\ni\nmen\nt\ns\nt\nhereof\n:\nareandw\ni\nl\nl\nbe\nt\nheexc\nl\nus\ni\nveproper\nt\nyof\nt\nheCompany\n.\nBywayof\ni\nl\nl\nus\nt\nra\nt\ni\non\n,\nPropr\ni\ne\nt\naryInforma\nt\ni\nonmay\ni\nnc\nl\nude\ni\nnforma\nt\ni\nonorma\nt\ner\ni\na\nl\nt\nha\nt\nhasno\nt\nbeenmadegenera\nl\nl\nyava\ni\nl\nab\nl\ne\nt\no\nt\nhepub\nl\ni\nc\n,\nsuchas\n:\n(a)corpora\nt\ne\ni\nnforma\nt\ni\non\n,\ni\nnc\nl\nud\ni\nngp\nl\nans\n,\ns\nt\nra\nt\neg\ni\nes\n,\nIn form a\nt\ni\non\n.\nIw\ni\nl\nl\nde\nl\ni\nver\nt\no\nt\nheCompanya\nl\nl\ncop\ni\nesando\nt\nher\nt\nang\ni\nb\nl\neembod\ni\nmen\nt\nsofPropr\ni\ne\nt\nary Info rm a\nt\ni\non\ni\nnmypossess\ni\nonorcon\nt\nro\nl\nupon\nt\nheear\nl\ni\nerofareques\nt\nby\nt\nheCompanyor\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\n.\n3\n.\nR\ni\ngh\nt\nsofO\nt\nhe rs\n.\nIunders\nt\nand\nt\nha\nt\nt\nheCompany\ni\nsnowandmayhereaf\nt\nerbesub\nj\nec\nt\nt\nonon-d\ni\nsc\nl\nosureorconf\ni\nden\nt\ni\na\nl\ni\nt\nyagreemen\nt\nsw\ni\nt\nh\nt\nh\ni\nrdpersonswh\ni\nchrequ\ni\nre\nt\nheCompany\nt\nopro\nt\nec\nt\no r refra\ni\nnfromuseofpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n.\nIagree\nt\nobeboundby\nt\nhe\nt\nermsofsuchagreemen\nt\ns\ni\nn\nt\nheeven\nt\nIhaveaccess\nt\nosuchpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n.\nme\nt\nhods\n,\npo\nl\ni\nc\ni\nes\n,\nres o\nl\nu\nt\ni\nons\n,\nno\nt\nes\n,\nema\ni\nl\ncorrespondence\n,\nnego\nt\ni\na\nt\ni\nonsor\nl\ni\nt\ni\nga\nt\ni\non\n;\n(b)marke\nt\ni\nng\ni\nnforma\nt\ni\non\n,\nme\nt\nhods\n,\ncus\nt\nomer\ni\nden\nt\ni\nt\ni\nesabou\nt\ncus\nt\nom ers\n,\nprospec\nt\ni\nnc\nl\nud\ni\nngs\nt\nra\nt\neg\ni\nes\n,\noro\nt\nher\ni\nnforma\nt\ni\non\ni\nden\nt\ni\nt\ni\nesoro\nt\nher4\n.\nCo mm\ni\nt\nmen\nt\nt\noCompany\n;\nAvo\ni\ndanceofConf\nl\ni\nc\nt\nof\nIn\nt\nere s\nt\n.\nWh\ni\nl\neanemp\nl\noyeeof\nt\nheCompany\n,\nIw\ni\nl\nl\ndevo\nt\nemyfu\nl\nl\n-\nt\ni\nmeeffor\nt\ns\nt\no\nt\nheCompany\n'\nsbus\ni\nnessandIw\ni\nl\nl\nno\nt\nengage\ni\nnanyo\nt\nherbus\ni\nnessac\nt\ni\nv\ni\nt\ny\nt\nha\nt\nconf\nl\ni\nc\nt\nsw\ni\nt\nhmydu\nt\ni\nes\nt\no\nt\nheCompany\n.\nIw\ni\nl\nl\nadv\ni\nse\nt\nhepres\ni\nden\nt\nof\nt\nheCompanyorh\ni\nsorhernom\ni\nneea\nt\nsu ch\nt\ni\nmeasanyac\nt\ni\nv\ni\nt\nyofe\ni\nt\nher\nt\nheCompanyorano\nt\nherbus\ni\nnesspresen\nt\nsmew\ni\nt\nhaconf\nl\ni\nc\nt\nof\ni\nn\nt\ne res\nt\nor\nt\nheappearanceofaconf\nl\ni\nc\nt\nof\ni\nn\nt\ne res\nt\nasanemp\nl\noyeeof\nt\nheCompany\n.\nIw\ni\nl\nl\nt\nakewha\nt\neverac\nt\ni\non\ni\nsreques\nt\nedofmeby\nt\nheCompany\nt\no reso\nl\nveanyconf\nl\ni\nc\nt\norappearanceofconf\nl\ni\nc\nt\nwh\ni\nch\ni\nt\nf\ni\nnds\nt\noex\ni\ns\nt\n.\ni\nnforma\nt\ni\nonabou\nt\nprospec\nt\ns\n,\normarke\nt\nana\nl\nysesorpro\nj\nec\nt\ni\nons\n:\n(c)f7nanc\ni\na\nl\ni\nnforma\nt\ni\non\n,\ni\nnc\nl\nud\ni\nngcos\nt\nandperformanceda\nt\na\n,\ndeb\nt\narrangemen\nt\ns\n,\nequ\ni\nt\nys\nt\nruc\nt\nure\n,\ni\nnves\nt\norsandho\nl\nd\ni\nngs\n,\npurchas\ni\nngandsa\nl\nesda\nt\naandpr\ni\nce\nl\ni\ns\nt\ns\n:\nand\nt\nechno\nl\nog\ni\nca\nl\ni\nnf\ni\nxma\nt\ni\non\n,\nspec\ni\nf\ni\nca\nt\ni\nons\n,\nmanua\nl\ns\n,\nfo rms\n,\n(d)opera\nt\ni\nona\nl\nand\ni\nnc\nl\nud\ni\nngp\nl\nans\n,\nt\nemp\nl\na\nt\nes\n,\nsof\nt\nw are\n,\ndes\ni\ngns\n.\nme\nt\nhods\n,\nprocedures\n,\nfo rmu\nl\nas\n,\nd\ni\nscover\ni\nes\n,\ni\nnven\nt\ni\nons\n,\ni\nmprovemen\nt\ns\n,\nb\ni\no\nl\nog\ni\nca\nl\norchem\ni\nca\nl\nma\nt\ner\ni\na\nl\ns\n,\nconcep\nt\nsand\ni\ndeas\n;\nand(e)personne\nl\ni\nnforma\nt\ni\non\n,\ni\nnc\nl\nud\ni\nngpersonne\nl\nl\ni\ns\nt\ns\n,\nrep or\nt\ni\nngororgan\ni\nza\nt\ni\nona\nl\ns\nt\nruc\nt\nure\n,\nre sum es\n,\npersonne\nl\nda\nt\na\n,\ncompensa\nt\ni\nons\nt\nruc\nt\nure\n,\nperformanceeva\nl\nua\nt\ni\nonsand\nt\nerm\ni\nna\nt\ni\nonarrangemen\nt\nsordocumen\nt\ns\n.\nPropr\ni\ne\nt\nary5\n.\nDev e\nl\nopmen\nt\ns\n.\nIherebyass\ni\ngnand\nt\nransferInforma\nt\ni\non(I)\ni\nnforma\nt\ni\nonCompanyfrom\ni\nnc\nl\nud es\n,\nw\ni\nt\nhou\nt\nl\ni\nm\ni\nt\na\nt\ni\non\n,\nand\n,\nt\no\nt\nheex\nt\nen\nt\nanysuchass\ni\ngnmen\nt\ncanno\nt\nbemadea\nt\npresen\nt\n,\nw\ni\nl\nl\nass\ni\ngnand\nt\nra ns fer\n,\nt\no\nt\nheCompanyand\ni\nt\nssuccessorsandass\ni\ngns\n,\na\nl\nl\nmyr\ni\ngh\nt\n,\nt\ni\nt\nl\neand\ni\nn\nt\ne res\nt\ni\nnand\nt\noa\nl\nl\nDeve\nl\nopmen\nt\ns\nt\nha\nt\n:\n(a)are crea\nt\ned\n,\nde ve\nl\nop ed\n,\nma de\n,\nconce\ni\nvedorreduced\nt\noprac\nt\ni\ncebyme(a\nl\noneor\nj\no\ni\nn\nt\nl\nyw\ni\nt\nhrece\ni\nved\ni\nnconf\ni\ndenceby\nt\nhe\ni\nt\nscus\nt\nomersorsupp\nl\ni\nersoro\nt\nher\nt\nh\ni\nrdpar\nt\ni\nes\n,\nand(2)a\nl\nl\nb\ni\no\nl\nog\ni\nca\nl\norchem\ni\nca\nl\nma\nt\ner\ni\na\nl\nsando\nt\nher\nt\nang\ni\nb\nl\neembod\ni\nmen\nt\nsof\nt\nhe\nPropr\ni\ne\nt\nary Info rm a\nt\ni\non\n.\no\nt\nhers)orundermyd\ni\nrec\nt\ni\nonRecogn\ni\nt\ni\nonofCompany\n'\nsR\ni\ngh\nt\ns\n.\nIw\ni\nl\nl\n(co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n"conce\ni\nved")dur\ni\nng\nt\nheper\ni\nodofmyemp\nl\noymen\nt\nands\ni\nx (6)mon\nt\nhs\nt\nhereaf\nt\nerand\nt\nha\nt\nre\nl\na\nt\ne\nt\no\nt\nhebus\ni\nnessof\nt\nheCompanyor\nt\noproduc\nt\ns\n,\nme\nt\nhodsorserv\ni\ncesbe\ni\nngresearched\n.\nde ve\nl\nop ed\n,\nman u fac\nt\nuredorso\nl\ndby\nt\nheCompany\n;\nor(b)resu\nl\nt\nfro m\nt\na sks ass\ni\ngned\nt\nomeby\nt\nheCompany\n;\nor(c)resu\nl\nt\nfro m\nt\nheuseofprem\ni\nses\n,\nPropr\ni\ne\nt\nary In form a\nt\ni\nonorpersona\nl\nproper\nt\ny(whe\nt\nher\nt\nang\ni\nb\nl\neor7no\nt\n,\na\nt\nany\nt\ni\nme\n,\nw\ni\nt\nhou\nt\nt\nheCompany\n'\nspr\ni\norwr\ni\nt\nt\nenperm\ni\nss\ni\non\n,\ne\ni\nt\nherdur\ni\nngoraf\nt\nermyemp\nl\noymen\nt\n,\nd\ni\nsc\nl\noseor\nt\nransferanyPropr\ni\ne\nt\naryInforma\nt\ni\non\nt\noanyoneou\nt\ns\ni\ndeof\nt\nheCompany\n,\noruscorperm\ni\nt\nt\nobeusedanyPropr\ni\ne\nt\nary Inf orm a\nt\ni\nonforanypurposeo\nt\nher\nt\nhan\nt\nheperformanceofmydu\nt\ni\nesasanemp\nl\noyeeof\nt\nheCompany\n.\nIw\ni\nl\nl\ncoopera\nt\new\ni\nt\nh\nt\nhe\nNO N-CO MI\n'\nITITION\n,\nNON-SOLJCIIATION\n,\nCONFIDENTIALITYANDASSIGNMENTAGREEMENT\ni\nn\nt\nang\ni\nb\nl\ne)owned\n,\nl\ni\ncensedor\nl\neasedby\nt\nheIunders\nt\nand\nt\nha\nt\nt\no\nt\nheex\nt\nen\nt\nt\nh\ni\nsAgreemen\nt\ni\nsrequ\ni\nred\nt\nobecons\nt\nrue d\ni\nnaccordancew\ni\nt\nh\nt\nhe\nl\nawsofanys\nt\na\nt\newh\ni\nchprec\nl\nudesarequ\ni\nrem en\nt\ni\nnanemp\nl\noyeeagreemen\nt\nt\no ass\ni\ngn cer\nt\na\ni\nnc\nl\nassesof\ni\nnven\nt\ni\nonsmadebyanemp\nl\noyee\n,\nt\nh\ni\nsSec\nt\ni\non5w\ni\nl\nl\nbe\ni\nn\nt\nerp re\nt\nedno\nt\nt\noapp\nl\ny\nt\noany\ni\nnven\nt\ni\nonwh\ni\nchacour\nt\nru\nl\nesand\n/\nor\nt\nheCompanyagreesfa\nl\nl\nsw\ni\nt\nh\ni\nnsuchc\nl\nass es\n.\nCompany(co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n'\n'\nCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns")\n,\nanda\nl\nl\npa\nt\nen\nt\nr\ni\ngh\nt\ns\n,\nt\nrademarks\n,\ncopyr\ni\ngh\nt\nsando\nt\nher\ni\nn\nt\ne\nl\nl\nec\nt\nua\nl\nproper\nt\nyr\ni\ngh\nt\ns\ni\nna\nl\nl\nco un\nt\nr\ni\nesand\nt\nerr\ni\nt\nor\ni\neswor\nl\ndw\ni\ndec\nl\na\ni\nm\ni\nng\n,\ncover\ni\nngoro\nt\nh erw\ni\nsear\ni\ns\ni\nngfromorper\nt\na\ni\nn\ni\nng\nt\noCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns (co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n"In\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns")\n.\nIfur\nt\nheragree\nt\nha\nt\n"Company-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns\n'\n'\ni\nnc\nl\nude\n,\nw\ni\nt\nhou\nt\nl\ni\nm\ni\nt\na\nt\ni\non\n,\na\nl\nl\nDe ve\nl\nopmen\nt\ns\nt\nha\nt\n(\ni\n)wereconce\ni\nvedbymebeforemyemp\nl\noymen\nt\n,\n(\ni\ni\n)re\nl\na\nt\ne\nt\no\nt\nhebus\ni\nnessof\nt\nheCompanyor\nt\noproduc\nt\ns\n,\nme\nt\nhodsorserv\ni\nces be\ni\nngresearched\n,\ndeve\nl\noped\n,\nmanufac\nt\nuredorso\nl\ndby\nt\nheCompany\n,\nand(\ni\ni\ni\n)wereno\nt\nsub\nj\nec\nt\nt\noanob\nl\ni\nga\nt\ni\non\nt\noass\ni\ngn\nt\noano\nt\nheren\nt\ni\nt\ny\n.\nwhenconce\ni\nved\n.\nIw\ni\nl\nl\nmakefu\nl\nl\nandpromp\nt\nd\ni\nsc\nl\nos ure\nt\no\nt\nheCompanyofa\nl\nl\nCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns\n,\nas we\nl\nl\nasa\nl\nl\no\nt\nherDeve\nl\nopmen\nt\nsconce\ni\nvedbymedur\ni\nng\nt\nheper\ni\nodofmyemp\nl\noymen\nt\nands\ni\nx (6)6\n.\nDocumen\nt\nsandO\nt\nherMa\nt\ner\ni\na\nl\ns\n.\nIw\ni\nl\nl\nkeepandma\ni\nn\nt\na\ni\nnadequa\nt\neandcurren\nt\nrecordsofa\nl\nl\nPropr\ni\ne\nt\naryInforma\nt\ni\nonandCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\nsconce\ni\nvedbyme\n,\nwh\ni\nchrecordsw\ni\nl\nl\nbeava\ni\nl\nab\nl\ne\nt\noandrema\ni\nn\nt\nheso\nl\neproper\nt\nyof\nt\nheCompanya\nt\na\nl\nl\nt\ni\nmes\n.\nmemoranda\n,\nrepor\nt\ns\n,\nA\nl\nl\nf\ni\nl\nes\n,\nl\ne\nt\nt\ners\n,\nno\nt\nes\n,\nrecords\n,\nda\nt\na\n,\nske\nt\nch es\n,\nd raw\ni\nngs\n,\nno\nt\nebooks\n,\nl\nayou\nt\ns\n,\nchar\nt\ns\n,\nquo\nt\na\nt\ni\nonsandpropos_a\nl\ns\n,\nspec\ni\nf\ni\nca\nt\ni\nonshee\nt\ns\n,\nprogram\nl\ni\ns\nt\ni\nngs\n,\nb\nl\nueprm\nt\ns\n,\nmode\nl\ns\n,\npro\nt\no\nt\nyp es\n,\nma\nt\ner\ni\na\nl\nsoro\nt\nherwr\ni\nt\nt\nen\n,\npho\nt\nograph\ni\ncoro\nt\nher\nt\nang\ni\nb\nl\nema\nt\ner\ni\na\nl\ncon\nt\na\ni\nn\ni\nngorembody\ni\nngPropr\ni\ne\nt\naryInforma\nt\ni\non\n,\nwhe\nt\nhercrea\nt\nedbymeoro\nt\nhe rs\n,\nwh\ni\nchcome\ni\nn\nt\nomycus\nt\nodyorpossess\ni\non\n,\nare\nt\nheexc\nl\nus\ni\nve proper\nt\nyof\nt\nheCompany\nt\nobeusedbymeon\nl\ny\ni\nn\nt\nheperformanceofmydu\nt\ni\nesfor\nt\nheCompany\n.\nIn\nt\nheeven\nt\nof\nt\nhe\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\nforanyreason\n,\nIw\ni\nl\nl\nde\nl\ni\nver\nt\no\nt\nheCompanya\nl\nl\nof\nt\nhe fore go\ni\nng\n,\nanda\nl\nl\no\nt\nherma\nt\ner\ni\na\nl\nsofanyna\nt\nureper\nt\na\ni\nn\ni\nng\nt\no\nt\nhePropr\ni\ne\nt\nary In form a\nt\ni\nonof\nt\nheCompanyand\nt\nomywork\n,\nandw\ni\nl\nl\nno\nt\nt\nakeorkeep\ni\nnmypossess\ni\nonanyof\nt\nhe fore go\ni\nngoranycop\ni\nes\n.\nAnyproper\nt\nys\ni\nt\nua\nt\nedon\nt\nheCompany\n'\nsprem\ni\nsesandownedby\nt\nheCompany\n,\ni\nnc\nl\nud\ni\nng\nl\nabora\nt\noryspace\n,\ncompu\nt\ners\n,\nd\ni\nsksando\nt\nhers\nt\noragemed\ni\na\n,\nf\ni\nl\ni\nngcab\ni\nne\nt\nsoro\nt\nherworkareas\n,\ni\nssub\nj\nec\nt\nt\no\ni\nnspec\nt\ni\nonby\nt\nheCompanya\nt\nany\nt\ni\nmew\ni\nt\nhorw\ni\nt\nhou\nt\nno\nt\ni\nce\n.\nmon\nt\nhs\nt\nhereaf\nt\ner\n.\nIacknow\nl\nedge\nt\nha\nt\na\nl\nl\nworkperformedbymeasanemp\nl\noyeeof\nt\nheCompany\ni\nsona"work\nt\norh\ni\nre"bas\ni\ns\n.\nIherebywa\ni\nvea\nl\nl\nc\nl\na\ni\nms\nt\noanymora\nl\nr\ni\ngh\nt\nsoro\nt\nherspec\ni\na\nl\nr\ni\ngh\nt\nswh\ni\nchImayhaveoraccrue\ni\nnanyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns\n.\nd\ni\nscover\ni\nes\n,\n'\n'\nDeve\nl\nopmen\nt\ns"mean\ni\nnv en\nt\ni\nons\n,\ndes\ni\ngns\n,\ndeve\nl\nopmen\nt\ns\n,\nme\nt\nhods\n,\nb\ni\no\nl\nog\ni\nca\nl\nda\nt\nabases\n,\nmod\ni\nf\ni\nca\nt\ni\nons\n,\ni\nmprovemen\nt\ns\n,\nprocesses\n,\norchem\ni\nca\nl\nma\nt\ner\ni\na\nl\ns\n,\na\nl\ngor\ni\nt\nhms\n,\ncompu\nt\nerprograms\n,\nfo rmu\nl\nae\n,\nt\nechn\ni\nques\n,\nt\nradesecre\nt\ns\n,\ngra ph\ni\ncsor\ni\nmages\n,\naud\ni\noorv\ni\nsua\nl\nworks\n,\nando\nt\nherworksofau\nt\nho rsh\ni\np\n.\nToprec\nl\nudeanyposs\ni\nb\nl\neuncer\nt\na\ni\nn\nt\ny\n,\nIhavese\nt\nfor\nt\nhonAppend\ni\nxAa\nt\nt\nachedhere\nt\noacomp\nl\ne\nt\ne\nl\ni\ns\nt\nofmebeforemyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\nsconce\ni\nvedbyemp\nl\noymen\nt\nt\nha\nt\nareno\nt\nDeve\nl\nopmen\nt\ns("Pr\ni\norInven\nt\ni\nons\n'\n'\n)\n.\nIhavea\nl\nso\nl\ni\ns\nt\nedonAppend\ni\nxAa\nl\nl\npa\nt\nen\nt\nr\ni\ngh\nt\nsofwh\ni\nchIamanEnforcemen\nt\nofIn\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\ny7\n.\ni\nnven\nt\nor\n,\no\nt\nher\nt\nhan\nt\nhosecon\nt\na\ni\nnedw\ni\nt\nh\ni\nnR\ni\ngh\nt\ns\n.\nIw\ni\nl\nl\ncoopera\nt\nefu\nl\nl\nyw\ni\nt\nh\nt\nheCompany\n,\nbo\nt\nhdur\ni\nngandaf\nt\nermyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nhe In\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns ("O\nt\nherPa\nt\nen\nt\nR\ni\ngh\nt\ns")\n.\nIfnosuchd\ni\nsc\nl\nosure\ni\nsa\nt\nt\nached\n,\nIrepresen\nt\nt\nha\nt\nt\nherearenoPr\ni\norInven\nt\ni\nonsorO\nt\nherPa\nt\nen\nt\nR\ni\ngh\nt\ns\n.\nIf\n,\ni\nnhecourseofmyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompany\n,\nImcorpora\nt\neaPr\ni\norInven\nt\ni\non\ni\nn\nt\noaCompanyproduc\nt\n,\nprocessorresearchordeve\nl\nopmen\nt\nprogramoro\nt\nherworkdonefor\nt\nheCompany\n,\nIherebygran\nt\nt\no\nt\nheCompanyanonexc\nl\nus\ni\nve\n,\nroy a\nl\nt\ny-\nt\nree\n,\nfu\nl\nl\nvpa\ni\nd-up\n,\ni\nrrev o cab\nl\ne\n,\nperpe\nt\nua\nl\n,\nwor\nl\ndw\ni\nde\nl\ni\ncens(w\ni\nt\nh\nt\nhefu\nl\nl\nr\ni\ngh\nt\nt\nosub\nl\ni\ncense\nt\nhroughmu\nl\nt\ni\np\nl\ne\nt\n1e rs)\nt\nomake\n,\nhavemade\n.\nmod\ni\nfy\n.\nuse\n,\nofferforsa\nl\ne\n.\nCompany\n,\nw\ni\nt\nhrespec\nt\nt\no\nt\nheprocuremen\nt\n,\nma\ni\nn\nt\nenanceandenforcemen\nt\nof In\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns\n,\naswe\nl\nl\nasa\nl\nl\no\nt\nherpa\nt\nen\nt\nr\ni\ngh\nt\ns\n,\nt\nrademarks\n,\ncopyr\ni\ngh\nt\nsando\nt\nher\ni\nn\nt\ne\nl\nl\nec\nt\nua\nl\nproper\nt\nyr\ni\ngh\nt\ns\ni\nna\nl\nl\nco un\nt\nr\ni\nesand\nt\nerr\ni\nt\nor\ni\neswor\nl\ndw\ni\ndeownedbvor\nl\ni\ncensed\nt\no\nt\nheCompany\n.\nIw\ni\nl\nl\ns\ni\ngn\n,\nbo\nt\nhdur\ni\nngandaf\nt\ner\nt\nhe\nt\nermof\nt\nh\ni\nsAgreemen\nt\n,\na\nl\nl\npapers\n,\ni\nnc\nl\nud\ni\nngcopyr\ni\ngh\nt\napp\nl\ni\nca\nt\ni\nons\n,\npa\nt\nen\nt\napp\nl\ni\nca\nt\ni\nons\n,\npr\ni\nor\ni\nt\nyr\ni\ngh\nt\ns\n,\nCompanymaydec\nl\nara\nt\ni\nons\n.\noa\nt\nhs\n,\nass\ni\ngnmen\nt\nsofandpowersofa\nt\nt\norney\n,\nwh\ni\nch\nt\nhe\ni\nmp or\nt\nandse\nl\nl\nsuchPr\ni\norInven\nt\ni\non\n.\ndeemnecessaryordes\ni\nrab\nl\ne\ni\nnorder\nt\no pro\nt\nec\nt\ni\nt\nsr\ni\ngh\nt\nsand\ni\nn\nt\nere s\nt\ns\ni\nnanyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\norIn\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns\n.\nIf\nt\nheCompany\ni\nsunab\nl\ne\n,\naf\nt\nerreasonab\nl\neeffor\nt\n,\nt\nosecuremys\ni\ngna\nt\nureonanysuchpapers\n,\nIhereby\ni\nrrevocab\nl\nydes\ni\ngna\nt\neandappo\ni\nn\nt\neachoff\ni\ncerof\nt\nheNo\nt\nw\ni\nt\nhs\nt\nand\ni\nng\nt\nheforego\ni\nng\n.\nIw\ni\nl\nl\nno\nt\ni\nncorpora\nt\ne\n,\norperm\ni\nt\nt\nobe\ni\nncorpora\nt\ned\n,\nPr\ni\norInven\nt\ni\nons\ni\nnanyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\nw\ni\nt\nhou\nt\nt\nheCompany\n'\nspr\ni\norwr\ni\nt\nt\nenconsen\nt\n.\n2\nNON-COMPETITION\n,\nNON-SOLICITATION\n,\nCONFIDENTIALITYANDASSIGNMENTAGREEMENTsuchagreemen\nt\nsorregard\ni\nng\nt\nheconf\ni\nden\nt\ni\na\nl\nna\nt\nureofsuchwork\n.\nIagree\nt\nocomp\nl\nyw\ni\nt\nhanysuchob\nl\ni\nga\nt\ni\nonsorres\nt\nr\ni\nc\nt\ni\nonsupon\nt\nhed\ni\nrec\nt\ni\nonof\nt\nheCompany\n.\nInadd\ni\nt\ni\non\nt\no\nt\nher\ni\ngh\nt\nsass\ni\ngnedunderSec\nt\ni\non5\n,\nIa\nl\nso ass\ni\ngn\nt\no\nt\nheCompany(oranyof\ni\nt\nsnom\ni\nnees)a\nl\nl\nr\ni\ngh\nt\nswh\ni\nchIhaveoracqu\ni\nred\ni\nnanyDeve\nl\nopmen\nt\ns\n,\nfu\nl\nl\nt\ni\nt\nl\ne\nt\nowh\ni\nch\ni\nsrequ\ni\nred\nt\nobe\ni\nn\nt\nhe Un\ni\nt\nedS\nt\na\nt\nesunderanycon\nt\nrac\nt\nbe\nt\nwe en\nt\nheCompanyand\nt\nheUn\ni\nt\nedS\nt\na\nt\nesoranyof\ni\nt\nsagenc\ni\nes\n.\nCompanyasmyagen\nt\nanda\nt\nt\norney-\ni\nn -fac\nt\nt\noexecu\nt\neanysuchpapersonmybeha\nl\nf\n.\nand\nt\no\nt\nakeanyanda\nl\nl\nac\nt\ni\nonsas\nt\nheCompanymaydeemnecessaryordes\ni\nrab\nl\ne\ni\nnorder\nt\nopro\nt\nec\nt\ni\nt\nsr\ni\ngh\nt\nsand\ni\nn\nt\nere s\nt\ns\ni\nn\nt\nhesame\n.\n8\n.\nNon-Compe\nt\ni\nt\ni\nonandNon-So\nl\ni\nc\ni\nt\na\nt\ni\non\n.\nIn ord er\nt\no pro\nt\nec\nt\nt\nheCompany\n'\nsPropr\ni\ne\nt\naryInforma\nt\ni\nonandgoodw\ni\nl\nl\n,\ndur\ni\nngmyemp\nl\noymen\nt\nandforaper\ni\nodof\nt\nwe\nl\nve(12)mon\nt\nhsfo\nl\nl\now\ni\nng\nt\nhe\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\nforanyreason(\nt\nhe"Res\nt\nr\ni\nc\nt\nedPer\ni\nod")\n,\nIw\ni\nl\nl\nno\nt\nd\ni\nrec\nt\nl\nyor\ni\nnd\ni\nrec\nt\nl\ny\n,\nwhe\nt\nherasowner\n,\npar\nt\nner\n,\nshareho\nl\nder\n,\nd\ni\nrec\nt\nor\n,\nconsu\nl\nt\nan\nt\n,\nagen\nt\n,\nemp\nl\noyee\n,\nco-ven\nt\nureroro\nt\nh erw\ni\nse\n,\nengage\n,\npar\nt\ni\nc\ni\npa\nt\neor\ni\nnves\nt\ni\nnanybus\ni\nnessac\nt\ni\nv\ni\nt\nyanywhere\ni\nn\nt\nhewor\nl\nd\nt\nha\nt\ndeve\nl\nops\n.\nmanufac\nt\nuresormarke\nt\nsproduc\nt\nsorserv\ni\nces\ni\nn\nt\nheCompany\n'\nsF\ni\ne\nl\ndofBus\ni\nness(asdef\ni\nnedbe\nl\now)\n.\nor\nt\nha\nt\ndeve\nl\nopsormanufac\nt\nuresanyproduc\nt\ns\n.\norperformsanyserv\ni\nces\n,\nt\nha\nt\nareo\nt\nh erw\ni\nsecompe\nt\ni\nt\ni\nvew\ni\nt\nh\nt\nheproduc\nt\nsorserv\ni\ncesof\nt\nheCompany\n,\norproduc\nt\nsorserv\ni\nces\nt\nha\nt\nt\nheCompanyhasunderdeve\nl\nopmen\nt\nor\nt\nha\nt\nwe re\nt\nhesub\nj\nec\nt\nofac\nt\ni\nvep\nl\nann\ni\nngdur\ni\nng\nt\nhe\nl\nas\nt\nt\nwe\nl\nve(12)mon\nt\nhsofmyemp\nl\noymen\nt\n;\npro v\ni\nded\nt\nha\nt\nt\nh\ni\nsw\ni\nl\nl\nno\nt\np roh\ni\nb\ni\nt\nanyposs\ni\nb\nl\ne\ni\nnves\nt\nmen\nt\ni\nnpub\nl\ni\nc\nl\ny\nt\nradeds\nt\nockofacompanyrepresen\nt\ni\nng\nl\ness\nt\nhanonepercen\nt\nof\nt\nhes\nt\nockofsuchcompany\n.\nIn\nadd\ni\nt\ni\non\n,\ndur\ni\nng\nt\nheRes\nt\nr\ni\nc\nt\nedPer\ni\nod\n,\nIw\ni\nl\nl\nno\nt\n,\nd\ni\nrec\nt\nl\nyor\ni\nnd\ni\nrec\nt\nl\ny\n,\ni\nnanymanner\n,\no\nt\nher\nt\nhanfor\nt\nhebenef\ni\nt\nof\nt\nheCompany\n,\n(a)ca\nl\nl\nupon\n,\nso\nl\ni\nc\ni\nt\n,\nd\ni\nver\nt\nor\nt\nakeawayanyof\nt\nhecus\nt\nomers\n,\nbus\ni\nnessorprospec\nt\ni\nvecus\nt\nomersof\nt\nheCompanyoranyof\ni\nt\nssupp\nl\ni\ners\n,\nand\n/\nor(b)so\nl\ni\nc\ni\nt\n,\nen\nt\ni\nceora\nt\nt\nemp\nt\nt\nopersuadeanyo\nt\nheremp\nl\noyeeorconsu\nl\nt\nan\nt\nof\nt\nheCompany\nt\no\nl\neave\nt\nhe serv\ni\ncesof\nt\nheCompanyforanyreason\n.\nIacknow\nl\nedgeandagree\nt\nha\nt\ni\nfIv\ni\no\nl\na\nt\neanyof\nt\nheprov\ni\ns\ni\nonsof\nt\nh\ni\nsSec\nt\ni\non8\n,\nt\nherunn\ni\nngof\nt\nhe Res\nt\nr\ni\nc\nt\nedPer\ni\nodw\ni\nl\nl\nbe ex\nt\nendedby\nt\nhe\nt\ni\nmedur\ni\nng wh\ni\nchIengage\ni\nnsuchv\ni\no\nl\na\nt\ni\non (s)\n.\nForpurposesof\nt\nh\ni\nsSec\nt\ni\non\n,\nt\nheCompany\n'\nsF\ni\ne\nl\ndofBus\ni\nn ess sha\nl\nl\nmeanresearch\n.\nd\ni\nscovery\n,\ndes\ni\ngn\n,\nmanufac\nt\nure\n,\nI0\n.\nPr\ni\norAgreemen\nt\ns\n.\nIherebyrepresen\nt\nt\nha\nt\n,\nexcep\nt\nasIhavefu\nl\nl\nyd\ni\nsc\nl\nosedprev\ni\nous\nl\ny\ni\nnwr\ni\nt\ni\nng\nt\no\nt\nheCompany\n,\nIamno\nt\nboundby\nt\nhe\nt\nermsofanyagreemen\nt\nw\ni\nt\nhanyprev\ni\nousemp\nl\noyeroro\nt\nherpar\nt\ny\nt\norefra\ni\nn from us\ni\nngord\ni\nsc\nl\nos\ni\nngany\nt\nradesecre\nt\norconf\ni\nden\nt\ni\na\nl\norpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\ni\nn\nt\nhecourseofmyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompanyor\nt\nore\nt\nra\ni\nnfromcompe\nt\ni\nng\n,\nd\ni\nrec\nt\nl\nyor\ni\nnd\ni\nrec\nt\nl\ny\n,\nw\ni\nt\nh\nt\nhebus\ni\nnessofsuchprev\ni\nousemp\nl\noyeroranyo\nt\nherpar\nt\ny\n.\nIfur\nt\nherrepresen\nt\nt\nha\nt\nmyperformanceofa\nl\nl\nt\nhe\nt\nermsof\nt\nh\ni\nsAgreemen\nt\nasanemp\nl\noyeeof\nt\nheCompanydoesno\nt\nandw\ni\nl\nl\nno\nt\nbreachanyagreemen\nt\nt\nokeep\ni\nnconf\ni\ndencepropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n,\nknow\nl\nedgeorda\nt\naacqu\ni\nredbyme\ni\nnconf\ni\ndenceor\ni\nn\nt\nrus\nt\npr\ni\nor\nt\nomyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompany\n.\nIw\ni\nl\nl\nno\nt\nd\ni\nsc\nl\nose\nt\no\nt\nheCompanyor\ni\nnduce\nt\nheCompany\nt\nouseanyconf\ni\nden\nt\ni\na\nl\norpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\nonorma\nt\ner\ni\na\nl\nbe\nl\nong\ni\nng\nt\noanyprev\ni\nousemp\nl\noyeroro\nt\nh ers\n.\nII\n.\nRem ed\ni\nesUponBreach\n.\nIunders\nt\nand\nt\nha\nt\nt\nhe res\nt\nr\ni\nc\nt\ni\nonscon\nt\na\ni\nned\ni\nn\nt\nh\ni\nsAgreemen\nt\narenecessaryfor\nt\nhepro\nt\nec\nt\ni\non of\nt\nhebus\ni\nnessandgoodw\ni\nl\nl\nof\nt\nheCompanyandIcons\ni\nder\nt\nhem\nt\nobereasonab\nl\neforsuch\npu rp ose\n.\nAnybreachof\nt\nh\ni\nsAgreemen\nt\ni\ns\nl\ni\nke\nl\ny\nt\nocause\nt\nheCompanysubs\nt\nan\nt\ni\na\nl\nand\ni\nrrevocab\nl\nedamageand\nt\nherefore\n,\ni\nn\nt\nheeven\nt\nofsuchbreach\n,\nt\nheCompany\n,\ni\nnadd\ni\nt\ni\non\nt\nosucho\nt\nherremed\ni\neswh\ni\nchmaybeava\ni\nl\nab\nl\ne\n,\nw\ni\nl\nl\nbeen\nt\ni\nt\nl\ned\nt\nospec\ni\nf\ni\ncperformanceando\nt\nher\ni\nn\nj\nunc\nt\ni\nve re\nl\ni\nef\n.\n12\n.\nUse of Vo\ni\nce\n,\nImageandL\ni\nkeness\n.\nIg\ni\nvec\nl\ni\nn\ni\nca\nl\ndeve\nl\nopmen\nt\n,\nsee k\ni\nngofregu\nl\na\nt\nory\nt\nheCompanyperm\ni\nss\ni\non\nt\nousemy vo\ni\nce\n,\ni\nmageor\nl\ni\nkeness\n,\nw\ni\nt\nhorw\ni\nt\nhou\nt\nus\ni\nngmyname\n,\nfor\nt\nhepurposesofadver\nt\ni\ns\ni\nngandpromo\nt\ni\nng\nt\nheCompany\n,\norforo\nt\nherpurposesdeemedappropr\ni\na\nt\neby\nt\nheCompany\ni\nn\ni\nt\nsreasonab\nl\ned\ni\nsc re\nt\ni\non\n,\nexcep\nt\nt\no\nt\nheex\nt\nen\nt\nexpress\nl\nyproh\ni\nb\ni\nt\nedby\nl\naw\n.\napprova\nl\ns\n,\nma rke\nt\ni\nngand\n/\norcommerc\ni\na\nl\ni\nza\nt\ni\nonof(\ni\n)an\nt\ni\nbod\ni\nes\n,\n(\ni\ni\n)an\nt\ni\ngensor(\ni\ni\ni\n)eng\ni\nneeredpro\nt\ne\ni\nn-oram\ni\nnoac\ni\nd-basedagen\nt\nsfora\nl\nl\nusesand\ni\nnd\ni\nca\nt\ni\nons\ni\nnhumansoran\ni\nma\nl\ns\nt\nha\nt\nac\nt\nt\nhroughmodu\nl\na\nt\ni\non(\ni\nnc\nl\nud\ni\nnge\ni\nt\nherasagon\ni\ns\nt\nsoran\nt\nagon\ni\ns\nt\ns)of\nt\nhe ac\nt\ni\nv\ni\nt\nyofpro\nt\ne\ni\nngrow\nt\nh fac\nt\norsbe\nl\nong\ni\nng\nt\no\nt\nheTransform\ni\nngGrow\nt\nhFac\nt\no r-su pe rfam\ni\nl\ny\n.\n13\n.\nPub\nl\ni\nca\nt\ni\nonsandPub\nl\ni\ncS\nt\na\nt\nem en\nt\ns\n.\nIw\ni\nl\nl\nob\nt\na\ni\nn\nt\nheCompany\n'\nswr\ni\nt\nt\nenapprova\nl\nbeforepub\nl\ni\nsh\ni\nngorsubm\ni\nt\nt\ni\nngforpub\nl\ni\nca\nt\ni\nonanyma\nt\ner\ni\na\nl\nt\nha\nt\nre\nl\na\nt\nes\nt\nomyworka\nt\nt\nheCompanyand\n/\nor\ni\nncorpora\nt\nesanyPropr\ni\ne\nt\naryInforma\nt\ni\non\n.\nToensure\nt\nha\nt\nt\nheCompanyde\nl\ni\nversacons\ni\ns\nt\nen\nt\nmessageabou\nt\ni\nt\nsproduc\nt\ns\n,\ns erv\ni\ncesandopera\nt\ni\nons\nt\no\nt\nhepub\nl\ni\nc\n,\n9\n.\nGovernmen\nt\nCon\nt\nrac\nt\ns\n.\nIacknow\nl\nedge\nt\nha\nt\nt\nheCompanymayhave\nt\nrom\nt\ni\nme\nt\no\nt\ni\nmeagreemen\nt\nsw\ni\nt\nho\nt\nherpersonsorw\ni\nt\nh\nt\nheUn\ni\nt\nedS\nt\na\nt\nesGovernmen\nt\nor\ni\nt\nsagenc\ni\neswh\ni\nch\ni\nmposeob\nl\ni\nga\nt\ni\nonsorres\nt\nr\ni\nc\nt\ni\nonson\nt\nheCompanyregard\ni\nng\ni\nnven\nt\ni\nonsmadedur\ni\nng\nt\nhecourseofwork under3\n/\n\\n.\n)(>-COMPIIT!ION\n,\nNON-SOLICITATION\n,\nCONFIDINTIALITYANDASSIGNMENTAGREEMENTandfur\nt\nher\ni\nnrecogm\nt\nwn\nt\nha\nt\nevenpos\ni\nt\ni\nves\nt\na\nt\nem en\nt\nsmayhaveade\nt\nr\ni\nmen\nt\na\nl\ne ffec\nt\non\nt\nheCompany\ni\nncer\nt\na\ni\nnsecur\ni\nt\ni\nes\nt\nransac\nt\ni\nonsando\nt\nhercon\nt\nex\nt\ns\n,\nanys\nt\na\nt\nemen\nt\nabou\nt\nt\nheCompanywh\ni\nchIcrea\nt\ne\n,\npub\nl\ni\nshorpos\nt\ndur\ni\nngmyper\ni\nodofemp\nl\noymen\nt\nandfors\ni\nx (6)mon\nt\nhs\nt\nhereaf\nt\ner\n,\nonanymed\ni\naaccess\ni\nb\nl\neby\nt\nhepub\nl\ni\nc\n,\ni\nnc\nl\nud\ni\nng bu\nt\nno\nt\nl\ni\nm\ni\nt\ned\nt\noe\nl\nec\nt\nron\ni\ncbu\nl\nl\ne\nt\ni\nnboardsandIn\nt\nern e\nt\nbasedcha\nt\nrooms\n,\nmus\nt\nf\ni\nrs\nt\nberev\ni\newedandapprovedbyanoff\ni\ncerof\nt\nheCompanybefore\ni\nt\ni\nsre\nl\neased\ni\nn\nt\nhepub\nl\ni\ncdoma\ni\nn\n.\nof\nt\nh\ni\nsAgreemen\nt\nt\noanyprospec\nt\ni\nve emp\nl\noyer\n,\npar\nt\nnerorco-ven\nt\nurerpr\ni\nor\nt\noen\nt\ner\ni\nng\ni\nn\nt\noabus\ni\nnessre\nl\na\nt\ni\nonsh\ni\npw\ni\nt\nhsuchpersonoren\nt\ni\nt\ny\n,\nand(\ni\ni\n)no\nt\ni\nfY\nt\nheCompanyofanysuchbus\ni\nnessre\nl\na\nt\ni\non sh\ni\np\n.\n18\n.\nSeverab\ni\nl\ni\nt\ny\n.\nIncaseanyprov\ni\ns\ni\nons(orpor\nt\ni\nons\nt\nhereof)con\nt\na\ni\nned\ni\nn\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\n,\nforanyreason\n,\nbehe\nl\nd\ni\nnva\nl\ni\nd\n,\ni\nl\nl\nega\nl\norunenforceab\nl\ne\ni\nnanyrespec\nt\n,\nsuch\ni\nnva\nl\ni\nd\ni\nt\ny\n,\ni\nl\nl\nega\nl\ni\nt\nyorunenforceab\ni\nl\ni\nt\nyw\ni\nl\nl\nno\nt\naffe c\nt\nt\nheo\nt\nherprov\ni\ns\ni\nonsof\nt\nh\ni\nsAgreemen\nt\n,\nand\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\nbecons\nt\nruedas\ni\nfsuch\ni\nnva\nl\ni\nd\n,\ni\nl\nl\nega\nl\norunenforceab\nl\neprov\ni\ns\ni\nonhadneverbeencon\nt\na\ni\nnedJ4\n.\nNoEmp\nl\noymen\nt\nOb\nl\ni\nga\nt\ni\non\n.\nIunders\nt\nand\nt\nha\nt\nt\nh\ni\nsAgreemen\nt\ndoesno\nt\nc rea\nt\neanob\nl\ni\nga\nt\ni\nonon\nt\nheCompanyoranyo\nt\nherperson\nt\nocon\nt\ni\nnuemyhere\ni\nn\n.\nIf\n,\nmoreover\n,\nanyoneormoreof\nt\nheprov\ni\ns\ni\nonscon\nt\na\ni\nned\ni\nn\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\nforanyreasonbehe\nl\nd\nt\nobeexcess\ni\nve\nl\nybroadas\nt\nodura\nt\ni\non\n,\ngeograph\ni\nca\nl\nscope\n,\nac\nt\ni\nv\ni\nt\nyorsub\nj\nec\nt\n,\ni\nt\nw\ni\nl\nl\nbecons\nt\nruedby\nl\ni\nm\ni\nt\ni\nngandreduc\ni\nng\ni\nt\n,\nsoas\nt\nobeenforceab\nl\ne\nt\no\nt\nheex\nt\nen\nt\ncompa\nt\ni\nb\nl\new\ni\nt\nh\nt\nheapp\nl\ni\ncab\nl\ne\nl\nawas\ni\nt\nw\ni\nl\nl\nt\nhenappear\n.\nemp\nl\noymen\nt\n.\nIacknow\nl\nedge\nt\nha\nt\n,\nsub\nj\nec\nt\nt\no\nt\nhe\nt\nermsof\nt\nheEmp\nl\noymen\nt\nAgreemen\nt\nt\nowh\ni\nch\nt\nh\ni\nsAgreemen\nt\ni\nsa\nt\nt\nachedasExh\ni\nb\ni\nt\nA\n,\nmyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompany\ni\nsa\nt\nw\ni\nl\nl\nand\nt\nhereforemaybe\nt\nerm\ni\nna\nt\ned by\nt\nheCompanyormea\nt\nany\nt\ni\nmeandforanyreason\n.\n19\n.\nEn\nt\ni\nreAgreemen\nt\n.\nTh\ni\nsAgreemen\nt\nSurv\ni\nva\nl\nandAss\ni\ngnmen\nt\nby\nt\nhe\nl\n5\n.\ncons\nt\ni\nt\nu\nt\nes\nt\nheen\nt\ni\nreandon\nl\nyagreemen\nt\nbe\nt\nwe en\nt\nheCompanyandmerespec\nt\ni\nng\nt\nhesub\nj\nec\nt\nma\nt\nt\nerhereof\n,\nandsupersedesa\nl\nl\npr\ni\noragreemen\nt\nsandCompany\n.\nIunders\nt\nand\nt\nha\nt\nmyob\nl\ni\nga\nt\ni\nonsunder\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\ncon\nt\ni\nnue\ni\nnaccordancew\ni\nt\nh\ni\nt\nsexpress\nt\nerm s reg ard\nl\nessofanychanges\ni\nnmy\nt\ni\nt\nl\ne\n,\npos\ni\nt\ni\non\n,\ndu\nt\ni\nes\n,\nsa\nl\nary\n,\ncompensa\nt\ni\nonorbenef\ni\nt\nsoro\nt\nher\nt\nermsandcond\ni\nt\ni\nonsofemp\nl\noymen\nt\n.\nIfur\nt\nherunders\nt\nand\nt\nha\nt\nmyob\nl\ni\nga\nt\ni\nonsunder\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\ncon\nt\ni\nnuefo\nl\nl\now\ni\nng\nt\nhe\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\nreg ard\nl\nessof\nt\nhemannerofsuch\nt\nerm\ni\nna\nt\ni\nonandw\ni\nl\nl\nbeb\ni\nnd\ni\nnguponmyhe\ni\nrs\n,\nexecu\nt\norsandadm\ni\nn\ni\ns\nt\nra\nt\nors\n.\nTheCompanyw\ni\nl\nl\nunders\nt\nand\ni\nngs\n,\nora\nl\norwr\ni\nt\nt\nen\n,\nbe\nt\nweenusconcern\ni\nngsuchsub\nj\nec\nt\nma\nt\nt\ner\n.\nNomod\ni\nf\ni\nca\nt\ni\non\n,\namendmen\nt\n,\nwa\ni\nveror\nt\nerm\ni\nna\nt\ni\nonof\nt\nh\ni\nsAgreemen\nt\norofanyprov\ni\ns\ni\nonhereofw\ni\nl\nl\nbeb\ni\nnd\ni\nng un\nl\ness mad e\ni\nnwr\ni\nt\ni\nngands\ni\ngnedbyanau\nt\nhor\ni\nzedoff\ni\ncerof\nt\nheCompany\n.\nFa\ni\nl\nure of\nt\nheCompany\nt\no\ni\nns\ni\ns\nt\nupons\nt\nr\ni\nc\nt\ncomp\nl\ni\nancew\ni\nt\nhanyof\nt\nhe\nt\ne rms\n,\ncovenan\nt\nsorcond\ni\nt\ni\nonshereofw\ni\nl\nl\nno\nt\nbedeemedawa\ni\nverofsuch\nt\ne rms\n,\ncovenan\nt\nsorcond\ni\nt\ni\nons\n.\n20\n.\nIn\nt\ne rpre\nt\na\nt\ni\non\n.\nTh\ni\nsAgreemen\nt\nw\ni\nl\nl\nbedeemed\nt\nobemadeanden\nt\nere d\ni\nn\nt\no\ni\nn\nt\nheCommonwea\nl\nt\nhofMassachuse\nt\nt\ns\n,\nandw\ni\nl\nl\ni\nna\nl\nl\nrespec\nt\nsbe\ni\nn\nt\nerp re\nt\ned\n,\nenforcedandgoverned under\nt\nhe\nl\nawsof\nt\nheCommonwea\nl\nt\nhofMassachuse\nt\nt\ns\n.\nIherebyagree\nt\noconsen\nt\nt\nopersona\nl\nj\nur\ni\nsd\ni\nc\nt\ni\nonof\nt\nhes\nt\na\nt\neandfedera\nl\ncour\nt\nss\ni\nt\nua\nt\nedw\ni\nt\nh\ni\nnSuffo\nl\nkCoun\nt\ny\n,\nMassachuse\nt\nt\nsforpurposesofenforc\ni\nng\nt\nh\ni\nsAgreemen\nt\n,\nandwa\ni\nveanyob\nj\nec\nt\ni\non\nt\nha\nt\nIm\ni\ngh\nt\nha ve\nt\nopersona\nl\nj\nur\ni\nsd\ni\nc\nt\ni\nonorvenue\ni\nn\nt\nhosecour\nt\ns\n.\nAsused\ni\nn\nt\nh\ni\nsAgreemen\nt\n,\n'\n'\ni\nnc\nl\nud\ni\nng"means"\ni\nnc\nl\nud\ni\nngbu\nt\nno\nt\nl\ni\nm\ni\nt\ned\nt\no"\n.\nhave\nt\nher\ni\ngh\nt\nt\noass\ni\ngnAff\ni\nl\ni\na\nt\nes\n,\nsuccessorsandconsen\nt\nt\nobeboundbyAgreemen\nt\nfor\nt\nhebenef\ni\nt\nt\nh\ni\nsAgreemen\nt\nt\no\ni\nt\nsass\ni\ngns\n.\nIexpress\nl\ny\nt\nheprov\ni\ns\ni\nonsof\nt\nh\ni\nsof\nt\nheCompanyoranyparen\nt\n,\nsubs\ni\nd\ni\naryorAff\ni\nl\ni\na\nt\ne\nt\nowhoseemp\nl\noyImaybe\nt\nransferredAgreemen\nt\nbe\nt\nran sfe r\n.\nw\ni\nt\nhou\nt\nt\nhenecess\ni\nt\ny\nt\nha\nt\nre-execu\nt\neda\nt\nt\nhe\nt\ni\nmeof\nt\nh\ni\nssuch16\n.\nEx\ni\nt\nIn\nt\nerv\ni\new\n.\nIfandwhenIdepar\nt\nfromrequ\ni\nred\nt\noa\nt\nt\nendanex\ni\nt\nt\nheCompany\n,\nImaybe\ni\nn\nt\nerv\ni\newands\ni\ngnan"Emp\nl\noyeeEx\ni\nt\nAcknow\nl\nedgemen\nt\n"\nt\no rea\nt\nl\ni\nrmmyaccep\nt\nanceandacknow\nl\nedgemen\nt\nof\nt\nheob\nl\ni\nga\nt\ni\nonsse\nt\nfor\nt\nh\ni\nn\nt\nh\ni\nsAgreemen\nt\n.\nFor\nt\nwe\nl\nve(12)mon\nt\nhsfo\nl\nl\now\ni\nng\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\n,\nIw\ni\nl\nl\nno\nt\ni\nfy\nt\nheCompanyofanychange\ni\nnmyaddressandofeach\n:\n,\nubsequen\nt\nemp\nl\noymen\nt\norbus\ni\nnessac\nt\ni\nVI\nt\ny\n,\ni\nnc\nl\nud\ni\nng\nt\nhenameandaddressofmyemp\nl\noyeroro\nt\nherpos\nt\n-Companyemp\nl\noymen\nt\np\nl\nansand\nt\nhe na\nt\nureofmyac\nt\ni\nv\ni\nt\ni\nes\n.\nJ7\n.\nD\ni\nsc\nl\nosuredur\ni\nng\nt\nheRes\nt\nr\ni\nc\nt\nedPer\ni\nod\n.\nDur\ni\nng\nt\nheRes\nt\nr\ni\nc\nt\nedPer\ni\nod\n,\nIw\ni\nl\nl\n(\ni\n)prov\ni\ndeacopy4\nIUNDERSTANDTHATTHISAGREEMENTAFFECTSIMPORTANTRIGHTS\n.\nBYUSINGBELOWICERTIFYTHATHIHAVEREASTHISAGREEMENTCAREFULLYANDSATISFIEDTHATIUNDERSTANDITCOMPLETELY\n.\nINWITNESSWHEREOF\n,\nt\nheunders\ni\ngnedhasexecu\nt\ned\nt\nh\ni\nsagreemen\nt\nas sca\nl\ned\ni\nns\nt\nrumen\nt\nasof\nt\nheda\nt\nese\nt\nfor\nt\nhbe\nl\now\n.\nS\ni\ngnedNageshMahan\nt\nrappa\nAPPENDIXATo\n:\nSc ho\nl\narRock\n,\nLLCFrom\n:\nNageshMahan\nt\nhappaDa\nt\ne\n:\nOc\nt\nober_\n,\n2012SUBJECT\n:\nPr\ni\norInven\nt\ni\nonsThefo\nl\nl\now\ni\nng\ni\nsacomp\nl\ne\nt\ne\nl\ni\ns\nt\nofa\nl\nl\ni\nnven\nt\ni\nonsor\ni\nmprovemen\nt\nsre\nl\nev an\nt\nt\no\nt\nhesub\nj\nec\nt\nma\nt\nt\nerofmyemp\nl\noymen\nt\nby\nt\nheCompany\nt\nha\nt\nhavebeenmadeorconce\ni\nvedorf\ni\nrs\nt\nred uc ed\nt\noprac\nt\ni\ncebymea\nl\noneor\nj\no\ni\nn\nt\nl\nyw\ni\nt\nho\nt\nherspr\ni\nor\nt\nomyengagemen\nt\nby\nt\nheCompany\n:\nXNo\ni\nnven\nt\ni\nonsor\ni\nmprovemen\nt\nsSeebe\nl\now\n:\nAdd\ni\nt\ni\nona\nl\nsh ee\nt\nsa\nt\nt\nachedThefo\nl\nl\now\ni\nng\ni\nsa\nl\ni\ns\nt\nofa\nl\nl\nUn\ni\nt\nedS\nt\na\nt\nespa\nt\nen\nt\nsandpa\nt\nen\nt\napp\nl\ni\nca\nt\ni\nons\ni\nnwh\ni\nchIhavebeennamedasan\ni\nnv en\nt\nor(no\nt\ne\nt\nha\nt\nfore\ni\ngncoun\nt\nerp ar\nt\nsweref\ni\nl\ned\ni\nna\nl\nl\nca ses\n,\nbu\nt\ns\nt\na\nt\nus\ni\nsno\nt\nknown\nt\nomeasof\nt\noday\n'\nsda\nt\ne)\n:\nNoneXSeebe\nl\now\n:\nIssu ed Pa\nt\nen\nt\ns7\n,\n144\n,\n9977\n,\n138\n,\n4926\n,\n884\n,\n7706\n,\n767\n,\n8886\n,\n750\n,\n1966\n,\n087\n,\n3235\n,\n681\n,\n568Ver\nt\neb ra\nt\neembryon\ni\ncpa\nt\nt\nern\ni\nng-\ni\nnduc\ni\nngpro\nt\ne\ni\nns\n,\ncompos\ni\nt\ni\nonsandusesre\nl\na\nt\ned\nt\nher\nt\noMe\nt\nhodof\nt\nrea\nt\ni\nng dopam\ni\nn erg\ni\ncandGABA-nerg\ni\ncd\ni\nsordersMe\nt\nhodsandcompos\ni\nt\ni\nonsfor\nt\nrea\nt\ni\nng orpreven\nt\ni\nngper\ni\nphera\nl\nneuropa\nt\nh\ni\nesNeuropro\nt\nec\nt\ni\nveme\nt\nhodsandreagen\nt\nsMe\nt\nhodsof\nt\nrea\nt\ni\nngd\ni\nsordersof\nt\nheeyeUseofneuregu\nl\ni\nnsasmodu\nl\na\nt\norsofce\nl\nl\nu\nl\narcommun\ni\nca\nt\ni\nonDev\ni\nceforde\nl\ni\nveryofsubs\nt\nancesandme\nt\nhodsofuse\nt\nhereofPa\nt\nen\nt\nApp\nl\ni\nca\nt\ni\nons20100144616200802210372007025436420070048286200402357392004022009620030162698Neuropro\nt\nec\nt\ni\nveme\nt\nhodsandreagen\nt\nsMe\nt\nhodsandcompos\ni\nt\ni\nonsfor\nt\nrea\nt\ni\nngd\ni\ns ord ers\ni\nnvo\nl\nv\ni\nngexc\ni\nt\no\nt\nox\ni\nc\ni\nt\nyMe\nt\nhodsandcompos\ni\nt\ni\nonsfor\nt\nrea\nt\ni\nngd\ni\nso rd ers\ni\nnvo\nl\nv\ni\nngexc\ni\nt\no\nt\nox\ni\nc\ni\nt\nyMe\nt\nhodof\nt\nrea\nt\ni\nngdopam\ni\nn erg\ni\ncandGABA-nerg\ni\ncd\ni\nsordersNeuropro\nt\nec\nt\ni\nveme\nt\nhodsandreagen\nt\nsMe\nt\nhodandcompos\ni\nt\ni\nons\nt\nor\nt\nrea\nt\ni\nngdopam\ni\nn erg\ni\ncandgabanerg\ni\ncd\ni\nsordersMETHODSANDCOMPOSITIONSFORTREATINGDOPAMINERGICANDGABA-NERGICDISORDERS20030I19729METHODOFTREATING\nDOPAMINERGICANDGABA-NERGJCDISORDERS\n20030083242METHODSANDCOMPOSITIONSFORTREATINGORPREVENTINGPERIPHERALNEUROPATHIESNEUREGULINSASMODULATORSOFCELLULARCOMMUNICATIONVERTEBRATEEMBRYONICPATTERNING-INDUCINGPROTEINS\n,\n2003004046520020045206COMPOSITIONSANDUSESRELATEDTHERTO
72f91408258be59298f412dad65e3baa.pdf	effective_date jurisdiction party term	EX-10.13 4 d324821dex1013.htm FORM OF DIRECTOR CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.13\nROUNDY’S, INC.\nDIRECTOR CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Director Confidentiality and Non-Competition Agreement (this “Agreement”) is entered into as of the\nday of\n, 201 ,by\nthe undersigned for the benefit of Roundy’s, Inc. (“Roundy’s”) and its current and future Subsidiaries and Affiliates (as hereinafter defined).\nRoundy’s and its Subsidiaries and Affiliates are referred to herein collectively as the “Company.”\nPREAMBLE:\nI am a director of the Company. I understand that in the course of my service to the Company, I will have access to and become acquainted\nwith a great deal of confidential, proprietary information concerning the Company's business, products, services, customers, sales and marketing\nefforts and practices, financial information, market strategies, corporate strategies, capital structure, ownership, and other valuable proprietary\ninformation. Some or all of such information may constitute "trade secrets" of the Company within the meaning of the Wisconsin Trade Secrets Act,\nWis. Stat. §134.90.\nI understand that such information is the exclusive property of the Company, and its disclosure to third persons could have a significant\nadverse effect on the Company's competitive position and business. Further, my use of such knowledge and information, and of the experience I\nhave and will gain in the course of my service to the Company, in a manner competitive with the Company's business would have a substantial\ndetrimental effect on the business and the value of the Company. The Company therefore wishes to maintain the strictest confidentiality of all such\ninformation and to take all reasonable steps to prevent its unauthorized dissemination or its use in a manner competitive with the Company's\nbusiness, and to prohibit me from competing with the Company during the time I am serving as a director of the Company.\nThe Company has offered to grant me Restricted Stock pursuant to the Company’s parent corporation, Roundy’s, Inc. (the “Restricted Stock”).\nI understand that the Company’s willingness to grant the Restricted Stock is in consideration, in part, of my entering into this Agreement.\nAGREEMENT:\nTherefore, in consideration of these circumstances, my continued directorship with the Company, and Company’s granting me the Restricted\nStock, I agree as follows:\n1. Confidential Information.\n(a) I acknowledge that by reason of my duties to and association with the Company, I have had and will have access to and have and will\nbecome informed of Confidential Information. For purposes of this Agreement, “Confidential Information” means all information of a confidential\nor proprietary nature (whether or not specifically labeled or identified as “confidential”), in any form or medium, that is or was disclosed to, or\ndeveloped or learned by, me in connection with my relationship with the Company or any of its stockholders or investors prior to the date hereof or\nduring the continuation of my serving as a director of the Company, and that relates to the actual or anticipated business, products, services,\nfinancing, research or development of the Company or any of its stockholders or investors or their respective suppliers, distributors or customers.\nConfidential Information includes, but is not limited to, the following: (i) internal business information (including information relating to strategic\nand staffing plans and practices, business, training, marketing, promotional and sales plans and practices, cost, rate and pricing structures, accounting\nand business methods); (ii) identities of, individual requirements of, specific contractual arrangements with, information about and confidential and\nproprietary information of any of the Company’s suppliers, distributors and customers; (iii) trade secrets, compilations of data and analyses,\ntechniques, systems, formulae, research, records, reports, manuals, documentation, models, data and data bases relating thereto; (iv) inventions,\ninnovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not\npatentable); and (v) Acquisition Targets and Active Targets (as defined below). Confidential Information shall not include information that (a) is or\nbecomes publicly known through no wrongful act or breach of obligation of confidentiality; (b) was rightfully received by me from a third party\n(other than the Company or any of the Company’s suppliers, distributors or customers) without a breach of any obligation of confidentiality by such\nthird party known to me or (c) was known to me prior to the beginning of my service as a director of the Company.\n(b) During the term of my service as a director of the Company, I agree to keep in strict confidence and not, directly or indirectly, make\nknown, disclose, furnish, make available or use any Confidential Information, except for use in my regular authorized duties on behalf of the\nCompany. Following the termination (for any reason whatsoever) of directorship with the Company, I agree to keep in strict confidence and not,\ndirectly or indirectly, make known, disclose, furnish, make available or use any Confidential Information in the Geographic Area (as defined below).\nI acknowledge and agree that all documents and other property including or reflecting Confidential Information furnished to me by the Company or\nany of its shareholders, or investors or otherwise acquired or developed by me or known by me shall at all times be the sole and exclusive property\nof the Company. During my service as a director of the Company and thereafter, I will take all necessary and appropriate steps to safeguard\nConfidential Information and protect it against disclosure, misappropriation, misuse, loss and theft. I will deliver to the Company at the termination\nof my directorship, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer disks or tapes, printouts\nand software and other documents and data (and copies thereof) relating to or containing any Confidential Information, Work Product (as defined\nbelow) or the business of the Company or any of its shareholders or investors which I may then possess or have under my control and shall erase all\nembodiments of the Confidential Information from all storage devices. If I am required to disclose Confidential Information pursuant to any\napplicable law or court order, I will provide the Company with prior written notice of the requirement for disclosure that details the Confidential\nInformation to be disclosed and will cooperate with the Company to preserve the confidentiality of such information to the extent possible.\n2. Common Law of Torts or Trade Secrets. In addition to the Company’s rights and my duties as specifically set out in this Agreement, the\nCompany will retain all such rights, and I will be bound by all such duties, to protect the Company’s Confidential Information, as are or may be\nprovided under the law, including without limitation the Wisconsin Trade Secrets Act (Wis. Stat. §134.90). Nothing herein will diminish the\nCompany’s common law and statutory rights to:\n2\n(a) keep such information secret for as long as the law allows;\n(b) protect such information from disclosure to any third party, wherever located;\n(c) protect such information from use by any person, including me, not authorized by the Company; and\n(d) seek any remedies and take any measures necessary to protect the Company’s Confidential Information.\n3. Inventions and Patents.\n(a) I acknowledge that all Work Product is the exclusive property of the Company. I hereby assign all right, title and interest in and to all\nWork Product to the Company. Any copyrightable works that fall within Work Product will be deemed “works made for hire” under Section 201(b)\nof the 1976 Copyright Act, and the Company shall own all of the rights comprised in the copyright therein; provided, however, that to the extent\nsuch works may not, by operation of law, constitute “works made for hire,” I hereby assign to the Company all right, title and interest therein.\n(b) I will promptly and fully disclose all Work Product to the Company and will cooperate and perform at the expense of the Company\nall actions reasonably requested by the Company (whether during or after my service as a director of the Company) to establish, confirm and protect\nthe Company’s right, title and interest in such Work Product. Without limiting the generality of the foregoing, I agree to assist the Company, at the\nCompany’s expense, to secure its rights in the Work Product in any and all countries, including the execution of all applications and all other\ninstruments and documents which the Company shall deem necessary in order to apply for and obtain rights in such Work Product and in order to\nassign and convey to the Company the sole and exclusive right, title and interest in and to such Work Product. If the Company is unable because of\nmy mental or physical incapacity or for any other reason (including my refusal to do so after request therefor is made by the Company) to secure my\nsignature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Work Product\nbelonging to or assigned to the Company pursuant to Section 3(a) above, then I hereby irrevocably designate and appoint Roundy’s and each of its\nduly authorized officers and agents as my agent and attorney-in-fact to act for and in my behalf and stead to execute and file any such applications\nand to do all other lawfully permitted acts to further the prosecution and issuance of patents or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I agree not to apply for or pursue any application for any United States or foreign patents or copyright\nregistrations covering any Work Product other than pursuant to this paragraph in circumstances where such patents or copyright registrations are or\nhave been or are required to be assigned to the Company.\n4. Non-Competition; Non-Solicitation; Non-Interference.\n(a) I agree that, except with regards to my service as a director for Tops Holding Corporation and a director for PetSmart, Inc., during my\nservice as a director of the Company, I will not directly or indirectly own any interest in, manage, control, participate in (whether as an officer,\ndirector, employee, partner, agent, representative or otherwise), consult with, render services for, or in any other manner engage in any business\nwhich is, directly or indirectly, engaged in any business in which the Company engages or proposes to engage during the period of my service as a\ndirector of the Company.\n3\n(b) Nothing herein shall prohibit me from being a passive owner of not more than 2% of the outstanding securities of any class of a\ncorporation which is publicly traded, so long as I have no active participation in the business of any such corporation.\n(c) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) solicit or attempt to solicit, induce or attempt to induce any employee, consultant, agent, independent contractor or any other\nperson otherwise engaged in a services or business relationship (including, without limitation, any customer, supplier, licensee or licensor) with the\nCompany to leave the employ of or terminate or otherwise adversely alter such person’s relationship with the Company, or in any way interfere with\nthe relationship between the Company and any such person; provided, however, I will not be prohibited from engaging the services of any such\nperson who is also engaged by the Company (other than any employee of the Company, or any consultant or agent providing services substantially\non a full-time basis to the Company relating primarily to the Food Industries, as that term is defined below) so long as any such engagement would\nnot otherwise constitute a breach of this Section 4(d).\n(d) During the Nonsolicitation Period, I will not directly or indirectly (including through another person) hire or otherwise engage the\nservices of any person who was an employee of the Company at any time during the ninety (90) day period immediately preceding the termination of\nmy directorship with the Company.\n(e) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) acquire or attempt to acquire any business in the United States of America to which the Company or any of its shareholders\nor investors has made any proposal during the Reference Period relating to the possible acquisition of such business by the Company or any of its\nshareholders or investors (an “Acquisition Target”), or take any action to induce or attempt to induce any Acquisition Target to consummate any\nacquisition, investment or other similar transaction with any person other than the Company or any of its shareholders or investors.\n(f) If, at the time of enforcement of any covenant or agreement contained in Section 1, 2, 4(a), 4(c) or 4(d) of this Agreement, a court\nholds that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, I agree that the maximum period,\nscope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court will be\nallowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because my services\nare unique and because I have access to Confidential Information and Work Product, I agree that monetary damages would not be an adequate\nremedy for any breach of this Agreement. Therefore, in the event a breach or threatened breach of this Agreement, the Company or its successors or\nassigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance\nand/or injunctive or similar relief in order to enforce, or prevent any violations of, the provisions hereof. In addition, in the event of a breach or\nviolation by me of any covenant or agreement in Section 4(a), 4(b), 4(d) or 4(e), the Noncompete Period set forth in such Section with respect to\nsuch covenant or agreement shall be tolled until such breach or violation has been duly cured.\n5. Definitions.\n“Active Targets” means a company or a division of a company in the Food Industries which, during the Reference Period, the Company has\nspent a significant amount of time investigating as a possible investment or acquisition candidate.\n4\n“Affiliate” of a person means any other person or investment fund controlling, controlled by or under common control with the person and, in\nthe case of a person which is a partnership, any partner of the person.\n“Food Industries” means the retail grocery industry.\n“Geographic Area” means the States of Illinois, Minnesota, Wisconsin, any other state in which the Company or any of its Subsidiaries\nconduct significant business after the date hereof, and any other state in which an Active Target is located.\n“Nonsolicitation Period” means the one (1) year period following the Termination Date.\n“Reference Period” means the one (1) year period immediately preceding the Termination Date.\n“Subsidiary” means, with respect to any person, any corporation, limited liability company, partnership, association or business entity of which\n(i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in\nthe election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that person or one or more of the\nother Subsidiaries of that person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity\n(other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or\nindirectly, by any person or one or more Subsidiaries of that person or a combination thereof. For purposes hereof, a person or persons shall be\ndeemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a\ncorporation) if such person or persons shall be allocated a majority of limited liability company, partnership, association or other business entity\ngains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other\nbusiness entity.\n“Termination Date” means the date on which my directorship with Roundy’s terminates, regardless of the reason for that termination.\n“Work Product” means all inventions, innovations, improvements, developments, methods, processes, designs, analyses, drawings, reports and\nall similar or related information (whether or not patentable or reduced to practice or comprising Confidential Information) and any copyrightable\nwork, trade mark, trade secret or other intellectual property rights (whether or not comprising Confidential Information) and any other form of\nConfidential Information, any of which relate to the Company’s actual or anticipated business, research and development or existing or future\nproducts or services and which were or are conceived, reduced to practice, contributed to, developed, made or acquired by me (whether alone or\njointly with others) while serving as a director (both before and after the date hereof) of Roundy’s (or its predecessors, successors or assigns).\n6. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, mailed by first class mail\n(postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the recipients at the address\nindicated below:\nIf to me:\n5\nIf to the Company: Roundy’s, Inc.\n875 East Wisconsin Avenue\nMilwaukee, WI 53202\nAttn: Darren W. Karst\nor to such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been duly given or made as follows: (a) if sent by registered or certified mail in the United\nStates, return receipt requested, upon actual receipt; (b) if sent by reputable overnight air courier (such as DHL or Federal Express), two business\ndays after being so sent; (c) if sent by telecopy or facsimile transmission (and receipt is confirmed), when transmitted at or before 5:00 p.m . local\ntime at the location of receipt on a business day, and if received after 5:00 p.m . or on a day other than a business day, on the next following business\nday, but only if also sent by reputable overnight air courier within one business day following transmission; or (d) if otherwise actually personally\ndelivered, when so delivered.\n7. General Provisions.\n(a) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement\nshall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.\nThe parties specifically acknowledge and agree that each covenant and agreement contained in Section 1, 2, 3, 4(a), 4(b), 4(d) or 4(e) of this\nAgreement is separate and independent.\n(b) Complete Agreement. This Agreement, together with the Restricted Stock, and those other documents expressly referred to herein\nand other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any\nprior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in\nany way.\n(c) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(d) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and its successors and assigns.\n(e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin\nwithout giving effect to any choice of law or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction)\nthat would cause the application of the law of any jurisdiction other than the State of Wisconsin.\n6\n(f) Remedies. The Company shall be entitled to enforce its rights under this Agreement specifically, to recover damages and costs\n(including reasonable attorney’s fees) caused by any breach of any provision of this Agreement and to exercise all other rights existing in its favor. I\nagree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that the\nCompany may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific\nperformance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement.\n(g) Survival. The provisions of this Agreement shall survive and continue in full force and effect in accordance with their terms\nnotwithstanding any termination of my service as a director of the Company, regardless of the reason for that termination.\n(h) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and me.\n(i) Advice of Counsel. I acknowledge that I have been encouraged by the Company to obtain independent legal advice and counsel prior\nto entering into this Agreement, that I have obtained such independent advice and counsel, and that I understand fully all the terms and provisions\ncontained in this Agreement.\n(j) Other Laws. Nothing in this Agreement shall be construed to limit or negate any common or statutory law, including, without\nlimitation, any laws of fiduciary duties, torts or trade secrets, where it provides the parties hereunder with broader protection than that provided\nherein.\n(l) Waiver of Jury Trial. I HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE\nANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR\nOTHERWISE) BETWEEN OR AMONG ANY OF THE PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THIS\nAGREEMENT.\nIN WITNESS WHEREOF, I have executed this Director Confidentiality and Non-Competition Agreement on the date first written above.\nDIRECTOR:\n7	EX-10.13 4 d324821dex1013.htm FORM OF DIRECTOR CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.13\nROUNDY’S, INC.\nDIRECTOR CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Director Confidentiality and Non-Competition Agreement (this “Agreement”) is entered into as of the day of ,201 , by\nthe undersigned for the benefit of Roundy’s, Inc. (“Roundy’s”) and its current and future Subsidiaries and Affiliates (as hereinafter defined).\nRoundy’s and its Subsidiaries and Affiliates are referred to herein collectively as the “Company.”\n \nPREAMBLE:\nI am a director of the Company. I understand that in the course of my service to the Company, I will have access to and become acquainted\nwith a great deal of confidential, proprietary information concerning the Company's business, products, services, customers, sales and marketing\nefforts and practices, financial information, market strategies, corporate strategies, capital structure, ownership, and other valuable proprietary\ninformation. Some or all of such information may constitute "trade secrets" of the Company within the meaning of the Wisconsin Trade Secrets Act,\nWis. Stat. §134.90.\nI understand that such information is the exclusive property of the Company, and its disclosure to third persons could have a significant\nadverse effect on the Company's competitive position and business. Further, my use of such knowledge and information, and of the experience I\nhave and will gain in the course of my service to the Company, in a manner competitive with the Company's business would have a substantial\ndetrimental effect on the business and the value of the Company. The Company therefore wishes to maintain the strictest confidentiality of all such\ninformation and to take all reasonable steps to prevent its unauthorized dissemination or its use in a manner competitive with the Company's\nbusiness, and to prohibit me from competing with the Company during the time I am serving as a director of the Company.\nThe Company has offered to grant me Restricted Stock pursuant to the Company’s parent corporation, Roundy’s, Inc. (the “Restricted Stock”).\nI understand that the Company’s willingness to grant the Restricted Stock is in consideration, in part, of my entering into this Agreement.\nAGREEMENT:\nTherefore, in consideration of these circumstances, my continued directorship with the Company, and Company’s granting me the Restricted\nStock, I agree as follows:\n1. Confidential Information.\n(a) T acknowledge that by reason of my duties to and association with the Company, I have had and will have access to and have and will\nbecome informed of Confidential Information. For purposes of this Agreement, “Confidential Information” means all information of a confidential\nor proprietary nature (whether or not specifically labeled or identified as “confidential”), in any form or medium, that is or was disclosed to, or\ndeveloped or learned by, me in connection with my relationship with the Company or any of its stockholders or investors prior to the date hereof or\nduring the continuation of my serving as a director of the Company, and that relates to the actual or anticipated business, products, services,\nfinancing, research or development of the Company or any of its stockholders or investors or their respective suppliers, distributors or customers.\nConfidential Information includes, but is not limited to, the following: (i) internal business information (including information relating to strategic\nand staffing plans and practices, business, training, marketing, promotional and sales plans and practices, cost, rate and pricing structures, accounting\nand business methods); (ii) identities of, individual requirements of, specific contractual arrangements with, information about and confidential and\nproprietary information of any of the Company’s suppliers, distributors and customers; (iii) trade secrets, compilations of data and analyses,\ntechniques, systems, formulae, research, records, reports, manuals, documentation, models, data and data bases relating thereto; (iv) inventions,\ninnovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not\npatentable); and (v) Acquisition Targets and Active Targets (as defined below). Confidential Information shall not include information that (a) is or\nbecomes publicly known through no wrongful act or breach of obligation of confidentiality; (b) was rightfully received by me from a third party\n(other than the Company or any of the Company’s suppliers, distributors or customers) without a breach of any obligation of confidentiality by such\nthird party known to me or (c) was known to me prior to the beginning of my service as a director of the Company.\n(b) During the term of my service as a director of the Company, I agree to keep in strict confidence and not, directly or indirectly, make\nknown, disclose, furnish, make available or use any Confidential Information, except for use in my regular authorized duties on behalf of the\nCompany. Following the termination (for any reason whatsoever) of directorship with the Company, I agree to keep in strict confidence and not,\ndirectly or indirectly, make known, disclose, furnish, make available or use any Confidential Information in the Geographic Area (as defined below).\nI acknowledge and agree that all documents and other property including or reflecting Confidential Information furnished to me by the Company or\nany of its shareholders, or investors or otherwise acquired or developed by me or known by me shall at all times be the sole and exclusive property\nof the Company. During my service as a director of the Company and thereafter, I will take all necessary and appropriate steps to safeguard\nConfidential Information and protect it against disclosure, misappropriation, misuse, loss and theft. I will deliver to the Company at the termination\nof my directorship, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer disks or tapes, printouts\nand software and other documents and data (and copies thereof) relating to or containing any Confidential Information, Work Product (as defined\nbelow) or the business of the Company or any of its shareholders or investors which I may then possess or have under my control and shall erase all\nembodiments of the Confidential Information from all storage devices. If I am required to disclose Confidential Information pursuant to any\napplicable law or court order, I will provide the Company with prior written notice of the requirement for disclosure that details the Confidential\nInformation to be disclosed and will cooperate with the Company to preserve the confidentiality of such information to the extent possible.\n2. Common Law of Torts or Trade Secrets. In addition to the Company’s rights and my duties as specifically set out in this Agreement, the\nCompany will retain all such rights, and I will be bound by all such duties, to protect the Company’s Confidential Information, as are or may be\nprovided under the law, including without limitation the Wisconsin Trade Secrets Act (Wis. Stat. §134.90). Nothing herein will diminish the\nCompany’s common law and statutory rights to:\n(a) keep such information secret for as long as the law allows;\n(b) protect such information from disclosure to any third party, wherever located;\n(c) protect such information from use by any person, including me, not authorized by the Company; and\n(d) seek any remedies and take any measures necessary to protect the Company’s Confidential Information.\n3. Inventions and Patents.\n(a) I acknowledge that all Work Product is the exclusive property of the Company. I hereby assign all right, title and interest in and to all\nWork Product to the Company. Any copyrightable works that fall within Work Product will be deemed “works made for hire” under Section 201(b)\nof the 1976 Copyright Act, and the Company shall own all of the rights comprised in the copyright therein; provided, however, that to the extent\nsuch works may not, by operation of law, constitute “works made for hire,” I hereby assign to the Company all right, title and interest therein.\n(b) I will promptly and fully disclose all Work Product to the Company and will cooperate and perform at the expense of the Company\nall actions reasonably requested by the Company (whether during or after my service as a director of the Company) to establish, confirm and protect\nthe Company’s right, title and interest in such Work Product. Without limiting the generality of the foregoing, I agree to assist the Company, at the\nCompany’s expense, to secure its rights in the Work Product in any and all countries, including the execution of all applications and all other\ninstruments and documents which the Company shall deem necessary in order to apply for and obtain rights in such Work Product and in order to\nassign and convey to the Company the sole and exclusive right, title and interest in and to such Work Product. If the Company is unable because of\nmy mental or physical incapacity or for any other reason (including my refusal to do so after request therefor is made by the Company) to secure my\nsignature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Work Product\nbelonging to or assigned to the Company pursuant to Section 3(a) above, then I hereby irrevocably designate and appoint Roundy’s and each of its\nduly authorized officers and agents as my agent and attorney-in-fact to act for and in my behalf and stead to execute and file any such applications\nand to do all other lawfully permitted acts to further the prosecution and issuance of patents or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I agree not to apply for or pursue any application for any United States or foreign patents or copyright\nregistrations covering any Work Product other than pursuant to this paragraph in circumstances where such patents or copyright registrations are or\nhave been or are required to be assigned to the Company.\n4. Non-Competition; Non-Solicitation; Non-Interference.\n \n(a) I agree that, except with regards to my service as a director for Tops Holding Corporation and a director for PetSmart, Inc., during my\nservice as a director of the Company, I will not directly or indirectly own any interest in, manage, control, participate in (whether as an officer,\ndirector, employee, partner, agent, representative or otherwise), consult with, render services for, or in any other manner engage in any business\nwhich is, directly or indirectly, engaged in any business in which the Company engages or proposes to engage during the period of my service as a\ndirector of the Company.\n(b) Nothing herein shall prohibit me from being a passive owner of not more than 2% of the outstanding securities of any class of a\ncorporation which is publicly traded, so long as I have no active participation in the business of any such corporation.\n(c) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) solicit or attempt to solicit, induce or attempt to induce any employee, consultant, agent, independent contractor or any other\nperson otherwise engaged in a services or business relationship (including, without limitation, any customer, supplier, licensee or licensor) with the\nCompany to leave the employ of or terminate or otherwise adversely alter such person’s relationship with the Company, or in any way interfere with\nthe relationship between the Company and any such person; provided, however, I will not be prohibited from engaging the services of any such\nperson who is also engaged by the Company (other than any employee of the Company, or any consultant or agent providing services substantially\non a full-time basis to the Company relating primarily to the Food Industries, as that term is defined below) so long as any such engagement would\nnot otherwise constitute a breach of this Section 4(d).\n(d) During the Nonsolicitation Period, I will not directly or indirectly (including through another person) hire or otherwise engage the\nservices of any person who was an employee of the Company at any time during the ninety (90) day period immediately preceding the termination of\nmy directorship with the Company.\n(e) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) acquire or attempt to acquire any business in the United States of America to which the Company or any of its shareholders\nor investors has made any proposal during the Reference Period relating to the possible acquisition of such business by the Company or any of its\nshareholders or investors (an “Acquisition Target”), or take any action to induce or attempt to induce any Acquisition Target to consummate any\nacquisition, investment or other similar transaction with any person other than the Company or any of its shareholders or investors.\n(f) If, at the time of enforcement of any covenant or agreement contained in Section 1, 2, 4(a), 4(c) or 4(d) of this Agreement, a court\nholds that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, I agree that the maximum period,\nscope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court will be\nallowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because my services\nare unique and because I have access to Confidential Information and Work Product, I agree that monetary damages would not be an adequate\nremedy for any breach of this Agreement. Therefore, in the event a breach or threatened breach of this Agreement, the Company or its successors or\nassigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance\nand/or injunctive or similar relief in order to enforce, or prevent any violations of, the provisions hereof. In addition, in the event of a breach or\nviolation by me of any covenant or agreement in Section 4(a), 4(b), 4(d) or 4(e), the Noncompete Period set forth in such Section with respect to\nsuch covenant or agreement shall be tolled until such breach or violation has been duly cured.\n5. Definitions.\n“Active Targets” means a company or a division of a company in the Food Industries which, during the Reference Period, the Company has\nspent a significant amount of time investigating as a possible investment or acquisition candidate.\n4\n“Affiliate” of a person means any other person or investment fund controlling, controlled by or under common control with the person and, in\nthe case of a person which is a partnership, any partner of the person.\n“Food Industries” means the retail grocery industry.\n“Geographic Area” means the States of Illinois, Minnesota, Wisconsin, any other state in which the Company or any of its Subsidiaries\nconduct significant business after the date hereof, and any other state in which an Active Target is located.\n“Nonsolicitation Period” means the one (1) year period following the Termination Date.\n“Reference Period” means the one (1) year period immediately preceding the Termination Date.\n“Subsidiary” means, with respect to any person, any corporation, limited liability company, partnership, association or business entity of which\n(i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in\nthe election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that person or one or more of the\nother Subsidiaries of that person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity\n(other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or\nindirectly, by any person or one or more Subsidiaries of that person or a combination thereof. For purposes hereof, a person or persons shall be\ndeemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a\ncorporation) if such person or persons shall be allocated a majority of limited liability company, partnership, association or other business entity\ngains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other\nbusiness entity.\n“Termination Date” means the date on which my directorship with Roundy’s terminates, regardless of the reason for that termination.\n“Work Product” means all inventions, innovations, improvements, developments, methods, processes, designs, analyses, drawings, reports and\nall similar or related information (whether or not patentable or reduced to practice or comprising Confidential Information) and any copyrightable\nwork, trade mark, trade secret or other intellectual property rights (whether or not comprising Confidential Information) and any other form of\nConfidential Information, any of which relate to the Company’s actual or anticipated business, research and development or existing or future\nproducts or services and which were or are conceived, reduced to practice, contributed to, developed, made or acquired by me (whether alone or\njointly with others) while serving as a director (both before and after the date hereof) of Roundy’s (or its predecessors, successors or assigns).\n6. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, mailed by first class mail\n(postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the recipients at the address\nindicated below:\nIf to me:\nIf to the Company: Roundy’s, Inc.\n875 East Wisconsin Avenue\nMilwaukee, WI 53202\nAttn: Darren W. Karst\nor to such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been duly given or made as follows: (a) if sent by registered or certified mail in the United\nStates, return receipt requested, upon actual receipt; (b) if sent by reputable overnight air courier (such as DHL or Federal Express), two business\ndays after being so sent; (c) if sent by telecopy or facsimile transmission (and receipt is confirmed), when transmitted at or before 5:00 p.m. local\ntime at the location of receipt on a business day, and if received after 5:00 p.m. or on a day other than a business day, on the next following business\nday, but only if also sent by reputable overnight air courier within one business day following transmission; or (d) if otherwise actually personally\ndelivered, when so delivered.\n7. General Provisions.\n(a) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement\nshall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.\nThe parties specifically acknowledge and agree that each covenant and agreement contained in Section 1, 2, 3, 4(a), 4(b), 4(d) or 4(e) of this\nAgreement is separate and independent.\n(b) Complete Agreement. This Agreement, together with the Restricted Stock, and those other documents expressly referred to herein\nand other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any\nprior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in\nany way.\n(c) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(d) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and its successors and assigns.\n(e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin\nwithout giving effect to any choice of law or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction)\nthat would cause the application of the law of any jurisdiction other than the State of Wisconsin.\n6\n(f) Remedies. The Company shall be entitled to enforce its rights under this Agreement specifically, to recover damages and costs\n(including reasonable attorney’s fees) caused by any breach of any provision of this Agreement and to exercise all other rights existing in its favor. I\nagree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that the\nCompany may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific\nperformance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement.\n(g) Survival. The provisions of this Agreement shall survive and continue in full force and effect in accordance with their terms\nnotwithstanding any termination of my service as a director of the Company, regardless of the reason for that termination.\n(h) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and me.\n(i) Advice of Counsel. I acknowledge that I have been encouraged by the Company to obtain independent legal advice and counsel prior\nto entering into this Agreement, that I have obtained such independent advice and counsel, and that I understand fully all the terms and provisions\ncontained in this Agreement.\n(j) Other Laws. Nothing in this Agreement shall be construed to limit or negate any common or statutory law, including, without\nlimitation, any laws of fiduciary duties, torts or trade secrets, where it provides the parties hereunder with broader protection than that provided\nherein.\n(1) Waiver of Jury Trial. I HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE\nANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR\nOTHERWISE) BETWEEN OR AMONG ANY OF THE PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THIS\nAGREEMENT.\nIN WITNESS WHEREOF, I have executed this Director Confidentiality and Non-Competition Agreement on the date first written above.\nDIRECTOR:	EX-10.13 4 d324821dex1013.htn FORM OF DIRECTOR CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.13\nROUNDY'S, INC.\nDIRECTOR CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Director Confidentiality and Non-Competition Agreement (this "Agreement") is entered into as of the\nday of\n201 by\nthe undersigned for the benefit of Roundy's, Inc. ("Roundy's") and its current and future Subsidiaries and Affiliates (as hereinafter defined).\nRoundy's and its Subsidiaries and Affiliates are referred to herein collectively as the "Company."\nPREAMBLE:\nI am a director of the Company. I understand that in the course of my service to the Company, I will have access to and become acquainted\nwith a great deal of confidential, proprietary information concerning the Company's business, products, services, customers, sales and marketing\nefforts\nand practices financial information, market strategies, corporate strategies, capital structure, ownership, and other valuable proprietary\ninformation. Some or all of such information may constitute "trade secrets" of the Company within the meaning of the Wisconsin Trade Secrets Act,\nWis. Stat. 8134.90.\nI understand that such information is the exclusive property of the Company, and its disclosure to third persons could have a significant\nadverse effect on the Company's competitive position and business. Further, my use of such knowledge and information, and of the experience I\nhave and will gain in the course of my service to the Company, in a manner competitive with the Company's business would have a substantial\ndetrimental effect on the business and the value of the Company. The Company therefore wishes to maintain the strictest confidentiality of all such\ninformation and to take all reasonable steps to prevent its unauthorized dissemination or its use in a manner competitive with the Company's\nbusiness, and to prohibit me from competing with the Company during the time I am serving as a director of the Company.\nThe Company has offered to grant me Restricted Stock pursuant to the Company's parent corporation, Roundy's, Inc. (the "Restricted Stock").\nI\nunderstand that the Company's willingness to grant the Restricted Stock is in consideration, in part, of my entering into this Agreement.\nAGREEMENT:\nTherefore, in consideration of these circumstances, my continued directorship with the Company, and Company's granting me the Restricted\nStock, I agree as follows:\n1. Confidential Information.\n(a) I acknowledge that by reason of my duties to and association with the Company, I have had and will have access to and have and will\nbecome informed of Confidential Information. For purposes of this Agreement, "Confidential Information" means all information of a confidential\nor proprietary nature (whether or not specifically labeled or identified as "confidential"), in any form or medium, that is or was disclosed to, or\ndeveloped or learned by, me in connection with my relationship with the Company or any of its stockholders or investors prior to the date hereof or\nduring the continuation of my serving as a director of the Company, and that relates to the actual or anticipated business, products, services,\nfinancing, research or development of the Company or any of its stockholders or investors or their respective suppliers, distributors or customers.\nConfidential Information includes, but is not limited to, the following: (i) internal business information (including information relating to strategic\nand staffing plans and practices, business, training, marketing, promotional and sales plans and practices, cost, rate and pricing structures, accounting\nand business methods); (ii) identities of, individual requirements of, specific contractual arrangements with, information about and confidential\nand\nproprietary information of any of the Company's suppliers, distributors and customers; (iii) trade secrets, compilations of data and analyses,\ntechniques, systems, formulae, research, records, reports, manuals, documentation, models, data and data bases relating thereto; (iv) inventions,\ninnovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not\npatentable); and (v) Acquisition Targets and Active Targets (as defined below). Confidential Information shall not include information that (a) is or\nbecomes publicly known through no wrongful act or breach of obligation of confidentiality; (b) was rightfully received by me from a third party\n(other than the Company or any of the Company's suppliers, distributors or customers) without a breach of any obligation of confidentiality by such\nthird party known to me or (c) was known to me prior to the beginning of my service as a director of the Company.\n(b) During the term of my service as a director of the Company, I agree to keep in strict confidence and not, directly or indirectly, make\nknown, disclose, furnish, make available or use any Confidential Information except for use in my regular authorized duties on behalf of the\nCompany. Following the termination (for any reason whatsoever) of directorship with the Company, I agree to keep in strict confidence and not,\ndirectly or indirectly, make known, disclose, furnish, make available or use any Confidential Information in the Geographic Area (as defined below).\nI acknowledge and agree that all documents and other property including or reflecting Confidential Information furnished to me by the Company\nor\nany of its shareholders, or investors or otherwise acquired or developed by me or known by me shall at all times be the sole and exclusive property\nof the Company. During my service as a director of the Company and thereafter, I will take all necessary and appropriate steps to safeguard\nConfidential Information and protect it against disclosure, misappropriation, misuse, loss and theft. I will deliver to the Company at the termination\nof my directorship, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer disks or tapes, printouts\nand software and other documents and data (and copies thereof) relating to or containing any Confidential Information, Work Product (as defined\nbelow) or the business of the Company or any of its shareholders or investors which I may then possess or have under my control and shall erase all\nembodiments of the Confidential Information from all storage devices. If I am required to disclose Confidential Information pursuant to any\napplicable law or court order, I will provide the Company with prior written notice of the requirement for disclosure that details the Confidential\nInformation to be disclosed and will cooperate with the Company to preserve the confidentiality of such information to the extent possible.\n2. Common Law of Torts or Trade Secrets. In addition to the Company's rights and my duties as specifically set out in this Agreement, the\nCompany will retain all such rights, and I will be bound by all such duties, to protect the Company's Confidential Information, as are or may be\nprovided under the law, including without limitation the Wisconsin Trade Secrets Act (Wis. Stat. 8134.90). Nothing herein will diminish the\nCompany's common law and statutory rights to:\n2\n(a) keep such information secret for as long as the law allows;\n(b) protect such information from disclosure to any third party, wherever located;\n(c) protect such information from use by any person, including me, not authorized by the Company; and\n(d) seek any remedies and take any measures necessary to protect the Company's Confidential Information.\n3. Inventions and Patents.\n(a) I acknowledge that all Work Product is the exclusive property of the Company. I hereby assign all right, title and interest in and to\nall\nWork Product to the Company. Any copyrightable works that fall within Work Product will be deemed "works made for hire" under Section 201(b)\nof the 1976 Copyright Act, and the Company shall own all of the rights comprised in the copyright therein; provided, however, that to the extent\nsuch works may not, by operation of law, constitute "works made for hire," I hereby assign to the Company all right, title and interest therein.\n(b) I will promptly and fully disclose all Work Product to the Company and will cooperate and perform at the expense of the Company\nall\nactions reasonably requested by the Company (whether during or after my service as a director of the Company) to establish, confirm and protect\nthe Company's right, title and interest in such Work Product. Without limiting the generality of the foregoing, I agree to assist the Company, at\nthe\nCompany's expense, to secure its rights in the Work Product in any and all countries, including the execution of all applications and all other\ninstruments and documents which the Company shall deem necessary in order to apply for and obtain rights in such Work Product and in order to\nassign and convey to the Company the sole and exclusive right, title and interest in and to such Work Product. If the Company is unable because of\nmy mental or physical incapacity or for any other reason (including my refusal to do so after request therefor is made by the Company) to secure my\nsignature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Work Product\nbelonging to or assigned to the Company pursuant to Section 3(a) above, then I hereby irrevocably designate and appoint Roundy's and each\nof\nits\nduly authorized officers and agents as my agent and attorney-in-fact to act for and in my behalf and stead to execute and file any such applications\nand to do all other lawfully permitted acts to further the prosecution and issuance of patents or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I agree not to apply for or pursue any application for any United States or foreign patents or copyright\nregistrations covering any Work Product other than pursuant to this paragraph in circumstances where such patents or copyright registrations are or\nhave been or are required to be assigned to the Company.\n4. Non-Competition; Non-Solicitation; Non-Interference.\n(a) I agree that, except with regards to my service as a director for Tops Holding Corporation and a director for PetSmart, Inc., during my\nservice as a director of the Company, I will not directly or indirectly own any interest in, manage, control, participate in (whether as an officer,\ndirector, employee, partner, agent, representative or otherwise), consult with, render services for, or in any other manner engage in any business\nwhich is, directly or indirectly, engaged in any business in which the Company engages or proposes to engage during the period of my service as a\ndirector of the Company.\n3\n(b) Nothing herein shall prohibit me from being a passive owner of not more than 2% of the outstanding securities of any class of a\ncorporation which is publicly traded, so long as I have no active participation in the business of any such corporation.\n(c) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) solicit or attempt to solicit, induce or attempt to induce any employee, consultant, agent, independent contractor or any other\nperson otherwise engaged in a services or business relationship (including, without limitation, any customer, supplier, licensee or licensor) with the\nCompany to leave the employ of or terminate or otherwise adversely alter such person's relationship with the Company, or in any way interfere with\nthe relationship between the Company and any such person; provided, however, I will not be prohibited from engaging the services of any such\nperson who is also engaged by the Company (other than any employee of the Company, or any consultant or agent providing services substantially\non a full-time basis to the Company relating primarily to the Food Industries, as that term is defined below) so long as any such engagement would\nnot otherwise constitute a breach of this Section 4(d).\n(d) During the Nonsolicitation Period, I will not directly or indirectly (including through another person) hire or otherwise engage the\nservices of any person who was an employee of the Company at any time during the ninety (90) day period immediately preceding the termination of\nmy directorship with the Company.\n(e) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) acquire or attempt to acquire any business in the United States of America to which the Company or any of its shareholders\nor\ninvestors has made any proposal during the Reference Period relating to the possible acquisition of such business by the Company or any of\nits\nshareholders or investors (an "Acquisition Target"), or take any action to induce or attempt to induce any Acquisition Target to consummate any\nacquisition, investment or other similar transaction with any person other than the Company or any of its shareholders or investors.\n(f) If, at the time of enforcement of any covenant or agreement contained in Section 1, 2, 4(a), 4(c) or 4(d) of this Agreement, a court\nholds that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, I agree that the maximum period,\nscope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court will be\nallowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because my services\nare unique and because I have access to Confidential Information and Work Product, I agree that monetary damages would not be an adequate\nremedy for any breach of this Agreement. Therefore, in the event a breach or threatened breach of this Agreement, the Company or its successors or\nassigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance\nand/or injunctive or similar relief in order to enforce, or prevent any violations of, the provisions hereof. In addition, in the event of a breach or\nviolation by me of any covenant or agreement in Section 4(a), 4(b), 4(d) or 4(e), the Noncompete Period set forth in such Section with respect to\nsuch covenant or agreement shall be tolled until such breach or violation has been duly cured.\n5. Definitions.\n"Active Targets" means a company or a division of a company in the Food Industries which, during the Reference Period, the Company has\nspent a significant amount of time investigating as a possible investment or acquisition candidate.\n4\n"Affiliate" of a person means any other person or investment fund controlling, controlled by or under common control with the person and,\nin\nthe case of a person which is a partnership, any partner of the person.\n"Food Industries" means the retail grocery industry.\n"Geographic Area" means the States of Illinois, Minnesota, Wisconsin, any other state in which the Company or any of its Subsidiaries\nconduct significant business after the date hereof, and any other state in which an Active Target is located.\n"Nonsolicitation Period" means the one (1) year period following the Termination Date.\n"Reference Period" means the one (1) year period immediately preceding the Termination Date.\n"Subsidiary" means, with respect to any person, any corporation, limited liability company, partnership, association or business entity of which\n(i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in\nthe election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that person or one or more of the\nother Subsidiaries of that person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity\n(other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or\nindirectly, by any person or one or more Subsidiaries of that person or a combination thereof. For purposes hereof, a person or persons shall be\ndeemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than\na\ncorporation) if such person or persons shall be allocated a majority of limited liability company, partnership, association or other business entity\ngains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other\nbusiness entity.\n"Termination Date" means the date on which my directorship with Roundy's terminates, regardless of the reason for that termination.\n"Work Product" means all inventions, innovations, improvements, developments, methods, processes, designs, analyses, drawings, reports and\nall similar or related information (whether or not patentable or reduced to practice or comprising Confidential Information) and any copyrightable\nwork, trade mark, trade secret or other intellectual property rights (whether or not comprising Confidential Information) and any other form of\nConfidential Information, any of which relate to the Company's actual or anticipated business, research and development or existing or future\nproducts or services and which were or are conceived, reduced to practice, contributed to, developed, made or acquired by me (whether alone or\njointly with others) while serving as a director (both before and after the date hereof) of Roundy's (or its predecessors, successors or assigns).\n6. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, mailed by first class mail\n(postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the recipients at the address\nindicated below:\nIf to me:\n5\nIf to the Company:\nRoundy's, Inc.\n875 East Wisconsin Avenue\nMilwaukee, WI 53202\nAttn: Darren W. Karst\nor to such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been duly given or made as follows: (a) if sent by registered or certified mail in the United\nStates, return receipt requested, upon actual receipt; (b) if sent by reputable overnight air courier (such as DHL or Federal Express), two business\ndays after being so sent; (c) if sent by telecopy or facsimile transmission (and receipt is confirmed), when transmitted at or before 5:00 p.m. local\ntime at the location of receipt on a business day, and if received after 5:00 p.m. or on a day other than a business day, on the next following business\nday, but only if also sent by reputable overnight air courier within one business day following transmission; or (d) if otherwise actually personally\ndelivered, when so delivered.\n7. General Provisions.\n(a) Severability.. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law\nor\nrule\nin\nany\njurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement\nshall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.\nThe parties specifically acknowledge and agree that each covenant and agreement contained in Section 1, 2, 3, 4(a), 4(b), 4(d) or 4(e) of this\nAgreement is separate and independent.\n(b) Complete Agreement. This Agreement, together with the Restricted Stock, and those other documents expressly referred to herein\nand other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any\nprior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in\nany way.\n(c) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(d) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and\nbe\nenforceable by the Company and its successors and assigns.\n(e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin\nwithout giving effect to any choice of law or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction)\nthat would cause the application of the law of any jurisdiction other than the State of Wisconsin.\n6\n(f) Remedies. The Company shall be entitled to enforce its rights under this Agreement specifically, to recover damages and costs\n(including reasonable attorney's fees) caused by any breach of any provision of this Agreement and to exercise all other rights existing in its favor. I\nagree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that the\nCompany may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific\nperformance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement.\n(g) Survival. The provisions of this Agreement shall survive and continue in full force and effect in accordance with their terms\nnotwithstanding any termination of my service as a director of the Company, regardless of the reason for that termination.\n(h) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and me.\n(i) Advice of Counsel. I acknowledge that I have been encouraged by the Company to obtain independent legal advice and counsel prior\nto entering into this Agreement, that I have obtained such independent advice and counsel, and that I understand fully all the terms and provisions\ncontained in this Agreement.\n(j) Other Laws. Nothing in this Agreement shall be construed to limit or negate any common or statutory law, including, without\nlimitation, any laws of fiduciary duties, torts or trade secrets, where it provides the parties hereunder with broader protection than that provided\nherein.\n(1) Waiver of Jury Trial. I HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE\nANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR\nOTHERWISE) BETWEEN OR AMONG ANY OF THE PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THIS\nAGREEMENT.\nIN WITNESS WHEREOF, I have executed this Director Confidentiality and Non-Competition Agreement on the date first written above.\nDIRECTOR:\n7	EX-10.13 4 d324821dex1013.htm FORM OF DIRECTOR CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.13\nROUNDY’S, INC.\nDIRECTOR CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Director Confidentiality and Non-Competition Agreement (this “Agreement”) is entered into as of the\nday of\n, 201 ,by\nthe undersigned for the benefit of Roundy’s, Inc. (“Roundy’s”) and its current and future Subsidiaries and Affiliates (as hereinafter defined).\nRoundy’s and its Subsidiaries and Affiliates are referred to herein collectively as the “Company.”\nPREAMBLE:\nI am a director of the Company. I understand that in the course of my service to the Company, I will have access to and become acquainted\nwith a great deal of confidential, proprietary information concerning the Company's business, products, services, customers, sales and marketing\nefforts and practices, financial information, market strategies, corporate strategies, capital structure, ownership, and other valuable proprietary\ninformation. Some or all of such information may constitute "trade secrets" of the Company within the meaning of the Wisconsin Trade Secrets Act,\nWis. Stat. §134.90.\nI understand that such information is the exclusive property of the Company, and its disclosure to third persons could have a significant\nadverse effect on the Company's competitive position and business. Further, my use of such knowledge and information, and of the experience I\nhave and will gain in the course of my service to the Company, in a manner competitive with the Company's business would have a substantial\ndetrimental effect on the business and the value of the Company. The Company therefore wishes to maintain the strictest confidentiality of all such\ninformation and to take all reasonable steps to prevent its unauthorized dissemination or its use in a manner competitive with the Company's\nbusiness, and to prohibit me from competing with the Company during the time I am serving as a director of the Company.\nThe Company has offered to grant me Restricted Stock pursuant to the Company’s parent corporation, Roundy’s, Inc. (the “Restricted Stock”).\nI understand that the Company’s willingness to grant the Restricted Stock is in consideration, in part, of my entering into this Agreement.\nAGREEMENT:\nTherefore, in consideration of these circumstances, my continued directorship with the Company, and Company’s granting me the Restricted\nStock, I agree as follows:\n1. Confidential Information.\n(a) I acknowledge that by reason of my duties to and association with the Company, I have had and will have access to and have and will\nbecome informed of Confidential Information. For purposes of this Agreement, “Confidential Information” means all information of a confidential\nor proprietary nature (whether or not specifically labeled or identified as “confidential”), in any form or medium, that is or was disclosed to, or\ndeveloped or learned by, me in connection with my relationship with the Company or any of its stockholders or investors prior to the date hereof or\nduring the continuation of my serving as a director of the Company, and that relates to the actual or anticipated business, products, services,\nfinancing, research or development of the Company or any of its stockholders or investors or their respective suppliers, distributors or customers.\nConfidential Information includes, but is not limited to, the following: (i) internal business information (including information relating to strategic\nand staffing plans and practices, business, training, marketing, promotional and sales plans and practices, cost, rate and pricing structures, accounting\nand business methods); (ii) identities of, individual requirements of, specific contractual arrangements with, information about and confidential and\nproprietary information of any of the Company’s suppliers, distributors and customers; (iii) trade secrets, compilations of data and analyses,\ntechniques, systems, formulae, research, records, reports, manuals, documentation, models, data and data bases relating thereto; (iv) inventions,\ninnovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not\npatentable); and (v) Acquisition Targets and Active Targets (as defined below). Confidential Information shall not include information that (a) is or\nbecomes publicly known through no wrongful act or breach of obligation of confidentiality; (b) was rightfully received by me from a third party\n(other than the Company or any of the Company’s suppliers, distributors or customers) without a breach of any obligation of confidentiality by such\nthird party known to me or (c) was known to me prior to the beginning of my service as a director of the Company.\n(b) During the term of my service as a director of the Company, I agree to keep in strict confidence and not, directly or indirectly, make\nknown, disclose, furnish, make available or use any Confidential Information, except for use in my regular authorized duties on behalf of the\nCompany. Following the termination (for any reason whatsoever) of directorship with the Company, I agree to keep in strict confidence and not,\ndirectly or indirectly, make known, disclose, furnish, make available or use any Confidential Information in the Geographic Area (as defined below).\nI acknowledge and agree that all documents and other property including or reflecting Confidential Information furnished to me by the Company or\nany of its shareholders, or investors or otherwise acquired or developed by me or known by me shall at all times be the sole and exclusive property\nof the Company. During my service as a director of the Company and thereafter, I will take all necessary and appropriate steps to safeguard\nConfidential Information and protect it against disclosure, misappropriation, misuse, loss and theft. I will deliver to the Company at the termination\nof my directorship, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer disks or tapes, printouts\nand software and other documents and data (and copies thereof) relating to or containing any Confidential Information, Work Product (as defined\nbelow) or the business of the Company or any of its shareholders or investors which I may then possess or have under my control and shall erase all\nembodiments of the Confidential Information from all storage devices. If I am required to disclose Confidential Information pursuant to any\napplicable law or court order, I will provide the Company with prior written notice of the requirement for disclosure that details the Confidential\nInformation to be disclosed and will cooperate with the Company to preserve the confidentiality of such information to the extent possible.\n2. Common Law of Torts or Trade Secrets. In addition to the Company’s rights and my duties as specifically set out in this Agreement, the\nCompany will retain all such rights, and I will be bound by all such duties, to protect the Company’s Confidential Information, as are or may be\nprovided under the law, including without limitation the Wisconsin Trade Secrets Act (Wis. Stat. §134.90). Nothing herein will diminish the\nCompany’s common law and statutory rights to:\n2\n(a) keep such information secret for as long as the law allows;\n(b) protect such information from disclosure to any third party, wherever located;\n(c) protect such information from use by any person, including me, not authorized by the Company; and\n(d) seek any remedies and take any measures necessary to protect the Company’s Confidential Information.\n3. Inventions and Patents.\n(a) I acknowledge that all Work Product is the exclusive property of the Company. I hereby assign all right, title and interest in and to all\nWork Product to the Company. Any copyrightable works that fall within Work Product will be deemed “works made for hire” under Section 201(b)\nof the 1976 Copyright Act, and the Company shall own all of the rights comprised in the copyright therein; provided, however, that to the extent\nsuch works may not, by operation of law, constitute “works made for hire,” I hereby assign to the Company all right, title and interest therein.\n(b) I will promptly and fully disclose all Work Product to the Company and will cooperate and perform at the expense of the Company\nall actions reasonably requested by the Company (whether during or after my service as a director of the Company) to establish, confirm and protect\nthe Company’s right, title and interest in such Work Product. Without limiting the generality of the foregoing, I agree to assist the Company, at the\nCompany’s expense, to secure its rights in the Work Product in any and all countries, including the execution of all applications and all other\ninstruments and documents which the Company shall deem necessary in order to apply for and obtain rights in such Work Product and in order to\nassign and convey to the Company the sole and exclusive right, title and interest in and to such Work Product. If the Company is unable because of\nmy mental or physical incapacity or for any other reason (including my refusal to do so after request therefor is made by the Company) to secure my\nsignature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Work Product\nbelonging to or assigned to the Company pursuant to Section 3(a) above, then I hereby irrevocably designate and appoint Roundy’s and each of its\nduly authorized officers and agents as my agent and attorney-in-fact to act for and in my behalf and stead to execute and file any such applications\nand to do all other lawfully permitted acts to further the prosecution and issuance of patents or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I agree not to apply for or pursue any application for any United States or foreign patents or copyright\nregistrations covering any Work Product other than pursuant to this paragraph in circumstances where such patents or copyright registrations are or\nhave been or are required to be assigned to the Company.\n4. Non-Competition; Non-Solicitation; Non-Interference.\n(a) I agree that, except with regards to my service as a director for Tops Holding Corporation and a director for PetSmart, Inc., during my\nservice as a director of the Company, I will not directly or indirectly own any interest in, manage, control, participate in (whether as an officer,\ndirector, employee, partner, agent, representative or otherwise), consult with, render services for, or in any other manner engage in any business\nwhich is, directly or indirectly, engaged in any business in which the Company engages or proposes to engage during the period of my service as a\ndirector of the Company.\n3\n(b) Nothing herein shall prohibit me from being a passive owner of not more than 2% of the outstanding securities of any class of a\ncorporation which is publicly traded, so long as I have no active participation in the business of any such corporation.\n(c) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) solicit or attempt to solicit, induce or attempt to induce any employee, consultant, agent, independent contractor or any other\nperson otherwise engaged in a services or business relationship (including, without limitation, any customer, supplier, licensee or licensor) with the\nCompany to leave the employ of or terminate or otherwise adversely alter such person’s relationship with the Company, or in any way interfere with\nthe relationship between the Company and any such person; provided, however, I will not be prohibited from engaging the services of any such\nperson who is also engaged by the Company (other than any employee of the Company, or any consultant or agent providing services substantially\non a full-time basis to the Company relating primarily to the Food Industries, as that term is defined below) so long as any such engagement would\nnot otherwise constitute a breach of this Section 4(d).\n(d) During the Nonsolicitation Period, I will not directly or indirectly (including through another person) hire or otherwise engage the\nservices of any person who was an employee of the Company at any time during the ninety (90) day period immediately preceding the termination of\nmy directorship with the Company.\n(e) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) acquire or attempt to acquire any business in the United States of America to which the Company or any of its shareholders\nor investors has made any proposal during the Reference Period relating to the possible acquisition of such business by the Company or any of its\nshareholders or investors (an “Acquisition Target”), or take any action to induce or attempt to induce any Acquisition Target to consummate any\nacquisition, investment or other similar transaction with any person other than the Company or any of its shareholders or investors.\n(f) If, at the time of enforcement of any covenant or agreement contained in Section 1, 2, 4(a), 4(c) or 4(d) of this Agreement, a court\nholds that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, I agree that the maximum period,\nscope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court will be\nallowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because my services\nare unique and because I have access to Confidential Information and Work Product, I agree that monetary damages would not be an adequate\nremedy for any breach of this Agreement. Therefore, in the event a breach or threatened breach of this Agreement, the Company or its successors or\nassigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance\nand/or injunctive or similar relief in order to enforce, or prevent any violations of, the provisions hereof. In addition, in the event of a breach or\nviolation by me of any covenant or agreement in Section 4(a), 4(b), 4(d) or 4(e), the Noncompete Period set forth in such Section with respect to\nsuch covenant or agreement shall be tolled until such breach or violation has been duly cured.\n5. Definitions.\n“Active Targets” means a company or a division of a company in the Food Industries which, during the Reference Period, the Company has\nspent a significant amount of time investigating as a possible investment or acquisition candidate.\n4\n“Affiliate” of a person means any other person or investment fund controlling, controlled by or under common control with the person and, in\nthe case of a person which is a partnership, any partner of the person.\n“Food Industries” means the retail grocery industry.\n“Geographic Area” means the States of Illinois, Minnesota, Wisconsin, any other state in which the Company or any of its Subsidiaries\nconduct significant business after the date hereof, and any other state in which an Active Target is located.\n“Nonsolicitation Period” means the one (1) year period following the Termination Date.\n“Reference Period” means the one (1) year period immediately preceding the Termination Date.\n“Subsidiary” means, with respect to any person, any corporation, limited liability company, partnership, association or business entity of which\n(i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in\nthe election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that person or one or more of the\nother Subsidiaries of that person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity\n(other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or\nindirectly, by any person or one or more Subsidiaries of that person or a combination thereof. For purposes hereof, a person or persons shall be\ndeemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a\ncorporation) if such person or persons shall be allocated a majority of limited liability company, partnership, association or other business entity\ngains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other\nbusiness entity.\n“Termination Date” means the date on which my directorship with Roundy’s terminates, regardless of the reason for that termination.\n“Work Product” means all inventions, innovations, improvements, developments, methods, processes, designs, analyses, drawings, reports and\nall similar or related information (whether or not patentable or reduced to practice or comprising Confidential Information) and any copyrightable\nwork, trade mark, trade secret or other intellectual property rights (whether or not comprising Confidential Information) and any other form of\nConfidential Information, any of which relate to the Company’s actual or anticipated business, research and development or existing or future\nproducts or services and which were or are conceived, reduced to practice, contributed to, developed, made or acquired by me (whether alone or\njointly with others) while serving as a director (both before and after the date hereof) of Roundy’s (or its predecessors, successors or assigns).\n6. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, mailed by first class mail\n(postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the recipients at the address\nindicated below:\nIf to me:\n5\nIf to the Company: Roundy’s, Inc.\n875 East Wisconsin Avenue\nMilwaukee, WI 53202\nAttn: Darren W. Karst\nor to such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been duly given or made as follows: (a) if sent by registered or certified mail in the United\nStates, return receipt requested, upon actual receipt; (b) if sent by reputable overnight air courier (such as DHL or Federal Express), two business\ndays after being so sent; (c) if sent by telecopy or facsimile transmission (and receipt is confirmed), when transmitted at or before 5:00 p.m . local\ntime at the location of receipt on a business day, and if received after 5:00 p.m . or on a day other than a business day, on the next following business\nday, but only if also sent by reputable overnight air courier within one business day following transmission; or (d) if otherwise actually personally\ndelivered, when so delivered.\n7. General Provisions.\n(a) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement\nshall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.\nThe parties specifically acknowledge and agree that each covenant and agreement contained in Section 1, 2, 3, 4(a), 4(b), 4(d) or 4(e) of this\nAgreement is separate and independent.\n(b) Complete Agreement. This Agreement, together with the Restricted Stock, and those other documents expressly referred to herein\nand other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any\nprior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in\nany way.\n(c) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(d) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and its successors and assigns.\n(e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin\nwithout giving effect to any choice of law or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction)\nthat would cause the application of the law of any jurisdiction other than the State of Wisconsin.\n6\n(f) Remedies. The Company shall be entitled to enforce its rights under this Agreement specifically, to recover damages and costs\n(including reasonable attorney’s fees) caused by any breach of any provision of this Agreement and to exercise all other rights existing in its favor. I\nagree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that the\nCompany may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific\nperformance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement.\n(g) Survival. The provisions of this Agreement shall survive and continue in full force and effect in accordance with their terms\nnotwithstanding any termination of my service as a director of the Company, regardless of the reason for that termination.\n(h) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and me.\n(i) Advice of Counsel. I acknowledge that I have been encouraged by the Company to obtain independent legal advice and counsel prior\nto entering into this Agreement, that I have obtained such independent advice and counsel, and that I understand fully all the terms and provisions\ncontained in this Agreement.\n(j) Other Laws. Nothing in this Agreement shall be construed to limit or negate any common or statutory law, including, without\nlimitation, any laws of fiduciary duties, torts or trade secrets, where it provides the parties hereunder with broader protection than that provided\nherein.\n(l) Waiver of Jury Trial. I HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE\nANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR\nOTHERWISE) BETWEEN OR AMONG ANY OF THE PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THIS\nAGREEMENT.\nIN WITNESS WHEREOF, I have executed this Director Confidentiality and Non-Competition Agreement on the date first written above.\nDIRECTOR:\n7
73bfeebfeca04b3a804d844cbf16d7f3.pdf	effective_date jurisdiction party term	ATTACHMENT D\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (“Agreement”) governs the disclosure of information by Papa Murphy’s International LLC\n(“Company”) to the person or entity listed as the Franchise Owner(s) on the signature block of this Agreement (“Recipient”) as of\n,20\n(“Effective Date”).\n1.\n“Confidential Information” means any and all technical and general information provided by Company to recipient, including but not limited\nto information relating to Company’s franchise system, underlying processes, recipes, mixes, techniques, know-how, ingredients, written\ndocumentation, operations manuals, methods of business, business plans, financial information, procurement requirements, purchasing,\nmanufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising,\nmarketing plans and information the Company provides regarding third parties.\n2. The Recipient agrees that it will hold in strict confidence and not disclose Confidential Information to any third party, except as approved in\nwriting by the Company, and will use the confidential information for no purpose other than evaluating or pursuing a business relationship\nwith the Company. The Recipient shall only permit access to Confidential Information to those of its employees or authorized representatives\nhaving a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as\nrestrictive as those contained herein.\n3. The Recipient shall immediately notify the Company in the event of any loss or unauthorized disclosure of any confidential information.\n4. The Recipient’s obligations under this Agreement do not apply to Confidential Information that: (a) was in the public domain before it was\ncommunicated to the Recipient through no fault of the Recipient; (b) entered the public domain after it was communicated to the Recipient\nthrough no fault of the Recipient; or (c) was in the Recipient’s possession free of any obligation of confidence at the time it was communicated\nto the Recipient.\n5. Upon completion of the evaluation by Recipient or upon written request of the Company, the Recipient shall promptly return to the company\nall documents, notes and other tangible materials representing the Confidential Information and all copies thereof.\n6. The recipient recognizes and agrees that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any confidential Information disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or\nother intellectual property right that has issued or that may issue, based on such Confidential Information. The Recipient shall not make, have\nmade, use or sell for any purpose any product or other item using, incorporating or derived from and Confidential Information.\nAttachment D\n1\nMarch 2014\n7. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction\nof any Confidential Information shall remain the property of the Company and shall contain any and all confidential or proprietary notices or\nlegends which appear on the original, unless otherwise authorized in writing by the Company.\n8. This Agreement shall be governed by and constructed in accordance with the laws of the State of Washington without reference to conflict of\nlaw principles. Any disputes under this Agreement may be brought in the applicable federal or state court for the judicial district in which Papa\nMurphy’s International has its principal place of business at the time the action is commenced. The parties waive all issues of personal\njurisdiction or venue for the purpose of enforcing this Section. This Agreement may not be amended except by a writing signed by both parties\nhereto.\n9. The Recipient agrees that breach of this Agreement will cause Company irreparable harm for which recovery of monetary damages would be\ninadequate, and that the Company shall be entitled to obtain timely injunctive relief under this Agreement, as well as such further relief as may\nbe granted by a court of competent jurisdiction.\n10. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such provision shall be changed and\ninterpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable\ncourt decisions.\n11. The recipient will not assign or transfer any rights or obligations under this Agreement without the prior written consent of the Company.\n12. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic\nmail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five\ndays after deposit in the mail, or upon acknowledgement of receipt of electronic transmission. Notices shall be sent to the addresses set forth at\nthe end of this Agreement or such other addresses as either party may specify in writing.\n[SIGNATURES ON FOLLOWING PAGE]\nAttachment D\n2\nMarch 2014\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.\nPAPA MURPHY’S INTERNATIONAL LLC\nBy:\nVictoria T. Blackwell\nChief Legal Officer\nDate:\nFRANCHISE OWNER:\nSign here if you are taking the franchise as an\nINDIVIDUAL(S)\n(Note: use these blocks if you marked in\nSection 10.2 of the Franchise Agreement that\nyou are an individual or a partnership but the\npartnership is not a separate legal entity)\nOR\nSign here if you are taking the franchise as a\nCORPORATION, LIMITED LIABILITY\nCOMPANY OR PARTNERSHIP\nPrint Name of Legal Entity\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nAttachment D\n3\nMarch 2014	ATTACHMENT D\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (“Agreement”) governs the disclosure of information by Papa Murphy’s International LL.C\n(“Company”) to the person or entity listed as the Franchise Owner(s) on the signature block of this Agreement (“Recipient”) as of\n, 20 (“Effective Date”).\n1.  “Confidential Information” means any and all technical and general information provided by Company to recipient, including but not limited\nto information relating to Company’s franchise system, underlying processes, recipes, mixes, techniques, know-how, ingredients, written\ndocumentation, operations manuals, methods of business, business plans, financial information, procurement requirements, purchasing,\nmanufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising,\nmarketing plans and information the Company provides regarding third parties.\n2. The Recipient agrees that it will hold in strict confidence and not disclose Confidential Information to any third party, except as approved in\nwriting by the Company, and will use the confidential information for no purpose other than evaluating or pursuing a business relationship\nwith the Company. The Recipient shall only permit access to Confidential Information to those of its employees or authorized representatives\nhaving a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as\nrestrictive as those contained herein.\nThe Recipient shall immediately notify the Company in the event of any loss or unauthorized disclosure of any confidential information.\n4.  The Recipient’s obligations under this Agreement do not apply to Confidential Information that: (a) was in the public domain before it was\ncommunicated to the Recipient through no fault of the Recipient; (b) entered the public domain after it was communicated to the Recipient\nthrough no fault of the Recipient; or (c) was in the Recipient’s possession free of any obligation of confidence at the time it was communicated\nto the Recipient.\n5. Upon completion of the evaluation by Recipient or upon written request of the Company, the Recipient shall promptly return to the company\nall documents, notes and other tangible materials representing the Confidential Information and all copies thereof.\n6.  The recipient recognizes and agrees that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any confidential Information disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or\nother intellectual property right that has issued or that may issue, based on such Confidential Information. The Recipient shall not make, have\nmade, use or sell for any purpose any product or other item using, incorporating or derived from and Confidential Information.\nAttachment D 1 March 2014\n10. 11. 12. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction\nof any Confidential Information shall remain the property of the Company and shall contain any and all confidential or proprietary notices or\nlegends which appear on the original, unless otherwise authorized in writing by the Company.\nThis Agreement shall be governed by and constructed in accordance with the laws of the State of Washington without reference to conflict of\nlaw principles. Any disputes under this Agreement may be brought in the applicable federal or state court for the judicial district in which Papa\nMurphy’s International has its principal place of business at the time the action is commenced. The parties waive all issues of personal\njurisdiction or venue for the purpose of enforcing this Section. This Agreement may not be amended except by a writing signed by both parties\nhereto.\nThe Recipient agrees that breach of this Agreement will cause Company irreparable harm for which recovery of monetary damages would be\ninadequate, and that the Company shall be entitled to obtain timely injunctive relief under this Agreement, as well as such further relief as may\nbe granted by a court of competent jurisdiction.\nIf any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such provision shall be changed and\ninterpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable\ncourt decisions.\nThe recipient will not assign or transfer any rights or obligations under this Agreement without the prior written consent of the Company.\nAll notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic\nmail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five\ndays after deposit in the mail, or upon acknowledgement of receipt of electronic transmission. Notices shall be sent to the addresses set forth at\nthe end of this Agreement or such other addresses as either party may specify in writing.\n[SIGNATURES ON FOLLOWING PAGE]\nAttachment D 2 March 2014\fIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date. PAPA MURPHY’S INTERNATIONAL LLC\nBy:\nVictoria T. Blackwell\nChief Legal Officer\nDate:\nFRANCHISE OWNER:\nSign here if you are taking the franchise as an OR\nINDIVIDUAL(S)\n(Note: use these blocks if you marked in\nSection 10.2 of the Franchise Agreement that\nyou are an individual or a partnership but the\npartnership is not a separate legal entity)\nSignature:\nPrint Name:\nDate:\nSignature:\nPrint Name:\nDate:\nSignature:\nPrint Name:\nDate:\nSignature:\nPrint Name:\nDate:\nSignature:\nPrint Name:\nDate:\nSignature:\nPrint Name:\nDate:\nAttachment D 3 By:\nPrint Name: Title:\nDate:\nBy:\nPrint Name: Title:\nDate:\nBy:\nPrint Name: Title:\nDate:\nBy:\nPrint Name: Title:\nDate:\nBy:\nPrint Name: Title:\nDate:\nBy:\nPrint Name: Title:\nDate:\nSign here if you are taking the franchise as a\nCORPORATION, LIMITED LIABILITY\nCOMPANY OR PARTNERSHIP\nPrint Name of Legal Entity\nMarch 2014	ATTACHMENT D\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT ("Agreement") governs the disclosure of information by Papa Murphy's International LLC\n("Company") to the person or entity listed as the Franchise Owner(s) on the signature block of this Agreement ("Recipient") as of\n,\n20 ("Effective Date").\n1.\n"Confidential Information" means any and all technical and general information provided by Company to recipient, including but not limited\nto information relating to Company's franchise system, underlying processes, recipes, mixes, techniques, know-how, ingredients, written\ndocumentation, operations manuals, methods of business, business plans, financial information, procurement requirements, purchasing,\nmanufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising,\nmarketing plans and information the Company provides regarding third parties.\n2.\nThe Recipient agrees that it will hold in strict confidence and not disclose Confidential Information to any third party, except as approved in\nwriting by the Company, and will use the confidential information for no purpose other than evaluating or pursuing a business relationship\nwith the Company. The Recipient shall only permit access to Confidential Information to those of its employees or authorized representatives\nhaving a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as\nrestrictive as those contained herein.\n3.\nThe Recipient shall immediately notify the Company in the event of any loss or unauthorized disclosure of any confidential information.\n4.\nThe Recipient's obligations under this Agreement do not apply to Confidentia Information that: (a) was in the public domain before it was\ncommunicated to the Recipient through no fault of the Recipient; (b) entered the public domain after it was communicated to the Recipient\nthrough no fault of the Recipient; or (c) was in the Recipient's possession free of any obligation of confidence at the time it was communicated\nto the Recipient.\n5.\nUpon completion of the evaluation by Recipient or upon written request of the Company, the Recipient shall promptly return to the company\nall documents, notes and other tangible materials representing the Confidential Information and all copies thereof.\n6.\nThe recipient recognizes and agrees that nothing contained in this Agreement shall be construed as granting any property rights, by license\nor\notherwise, to any confidential Information disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or\nother intellectual property right that has issued or that may issue, based on such Confidential Information. The Recipient shall not make, have\nmade, use or sell for any purpose any product or other item using, incorporating or derived from and Confidential Information.\nAttachment D\n1\nMarch 2014\n7. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction\nof any Confidential Information shall remain the property of the Company and shall contain any and all confidential or proprietary notices or\nlegends which appear on the original, unless otherwise authorized in writing by the Company.\n8.\nThis Agreement shall be governed by and constructed in accordance with the laws of the State of Washington without reference to conflict of\nlaw principles. Any disputes under this Agreement may be brought in the applicable federal or state court for the judicial district in\nwhich\nPapa\nMurphy's International has its principal place of business at the time the action is commenced. The parties waive all issues of personal\njurisdiction or venue for the purpose of enforcing this Section. This Agreement may not be amended except by a writing signed by both parties\nhereto.\n9.\nThe Recipient agrees that breach of this Agreement will cause Company irreparable harm for which recovery of monetary damages would be\ninadequate, and that the Company shall be entitled to obtain timely injunctive relief under this Agreement, as well as such further relief as may\nbe granted by a court of competent jurisdiction\n10.\nIf any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such provision shall be changed and\ninterpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable\ncourt decisions.\n11. The recipient will not assign or transfer any rights or obligations under this Agreement without the prior written consent of the Company.\n12. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic\nmail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five\ndays\nafter deposit in the mail, or upon acknowledgement of receipt of electronic transmission. Notices shall be sent to the addresses set forth at\nthe end of this Agreement or such other addresses as either party may specify in writing.\n[SIGNATURES ON FOLLOWING PAGE]\nAttachment D\n2\nMarch 2014\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.\nPAPA MURPHY'S INTERNATIONAL LLC\nBy:\nVictoria T. Blackwell\nChief Legal Officer\nDate:\nFRANCHISE OWNER:\nSign here if you are taking the franchise as an\nOR\nSign here if you are taking the franchise as a\nINDIVIDUAL(S\nCORPORATION, LIMITED LIABILITY\n(Note: use these blocks if you marked in\nCOMPANY OR PARTNERSHIP\nSection 10.2 of the Franchise Agreement that\nyou are an individual or a partnership but the\npartnership is not a separate legal entity)\nPrint Name of Legal Entity\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nAttachment D\n3\nMarch 2014	ATTACHMENT D\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (“Agreement”) governs the disclosure of information by Papa Murphy’s International LLC\n(“Company”) to the person or entity listed as the Franchise Owner(s) on the signature block of this Agreement (“Recipient”) as of\n,20\n(“Effective Date”).\n1.\n“Confidential Information” means any and all technical and general information provided by Company to recipient, including but not limited\nto information relating to Company’s franchise system, underlying processes, recipes, mixes, techniques, know-how, ingredients, written\ndocumentation, operations manuals, methods of business, business plans, financial information, procurement requirements, purchasing,\nmanufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising,\nmarketing plans and information the Company provides regarding third parties.\n2. The Recipient agrees that it will hold in strict confidence and not disclose Confidential Information to any third party, except as approved in\nwriting by the Company, and will use the confidential information for no purpose other than evaluating or pursuing a business relationship\nwith the Company. The Recipient shall only permit access to Confidential Information to those of its employees or authorized representatives\nhaving a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as\nrestrictive as those contained herein.\n3. The Recipient shall immediately notify the Company in the event of any loss or unauthorized disclosure of any confidential information.\n4. The Recipient’s obligations under this Agreement do not apply to Confidential Information that: (a) was in the public domain before it was\ncommunicated to the Recipient through no fault of the Recipient; (b) entered the public domain after it was communicated to the Recipient\nthrough no fault of the Recipient; or (c) was in the Recipient’s possession free of any obligation of confidence at the time it was communicated\nto the Recipient.\n5. Upon completion of the evaluation by Recipient or upon written request of the Company, the Recipient shall promptly return to the company\nall documents, notes and other tangible materials representing the Confidential Information and all copies thereof.\n6. The recipient recognizes and agrees that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any confidential Information disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or\nother intellectual property right that has issued or that may issue, based on such Confidential Information. The Recipient shall not make, have\nmade, use or sell for any purpose any product or other item using, incorporating or derived from and Confidential Information.\nAttachment D\n1\nMarch 2014\n7. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction\nof any Confidential Information shall remain the property of the Company and shall contain any and all confidential or proprietary notices or\nlegends which appear on the original, unless otherwise authorized in writing by the Company.\n8. This Agreement shall be governed by and constructed in accordance with the laws of the State of Washington without reference to conflict of\nlaw principles. Any disputes under this Agreement may be brought in the applicable federal or state court for the judicial district in which Papa\nMurphy’s International has its principal place of business at the time the action is commenced. The parties waive all issues of personal\njurisdiction or venue for the purpose of enforcing this Section. This Agreement may not be amended except by a writing signed by both parties\nhereto.\n9. The Recipient agrees that breach of this Agreement will cause Company irreparable harm for which recovery of monetary damages would be\ninadequate, and that the Company shall be entitled to obtain timely injunctive relief under this Agreement, as well as such further relief as may\nbe granted by a court of competent jurisdiction.\n10. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such provision shall be changed and\ninterpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable\ncourt decisions.\n11. The recipient will not assign or transfer any rights or obligations under this Agreement without the prior written consent of the Company.\n12. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic\nmail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five\ndays after deposit in the mail, or upon acknowledgement of receipt of electronic transmission. Notices shall be sent to the addresses set forth at\nthe end of this Agreement or such other addresses as either party may specify in writing.\n[SIGNATURES ON FOLLOWING PAGE]\nAttachment D\n2\nMarch 2014\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.\nPAPA MURPHY’S INTERNATIONAL LLC\nBy:\nVictoria T. Blackwell\nChief Legal Officer\nDate:\nFRANCHISE OWNER:\nSign here if you are taking the franchise as an\nINDIVIDUAL(S)\n(Note: use these blocks if you marked in\nSection 10.2 of the Franchise Agreement that\nyou are an individual or a partnership but the\npartnership is not a separate legal entity)\nOR\nSign here if you are taking the franchise as a\nCORPORATION, LIMITED LIABILITY\nCOMPANY OR PARTNERSHIP\nPrint Name of Legal Entity\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nAttachment D\n3\nMarch 2014
73cec195391b740e1185dd352ccae753.pdf	effective_date jurisdiction party term	EX-2.3 4 dex23.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - ANDREW MILSTEIN\nExhibit 2.3\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Andrew Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business”), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller ’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nAndrew Milstein\n16 Foulet Drive\nPrinceton, NJ 08540\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\n4\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service to\nbecome effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n*****\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy: /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Andrew Milstein\nAndrew Milstein	EX-2.3 4 dex23.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - ANDREW MILSTEIN\nExhibit 2.3\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Andrew Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business™), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n \n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n \n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n \n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\nwith copies (which shall not constitute notice to the Company)_to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nAndrew Milstein\n16 Foulet Drive\nPrinceton, NJ 08540\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28% Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service to\nbecome effective 10 days after such mailing.\n \n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n \n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(1) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\nL S\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy:  /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Andrew Milstein\nAndrew Milstein	EX-2.3 4 dex23.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT ANDREW MILSTEIN\nExhibit 2.3\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n"Company."), and Andrew Milstein ("Seller"). For purposes of this Agreement, unless the context requires otherwise, the term "Company." shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n("BlueBlazer") and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the "Merger Sub") and BlueBlazer, dated as of January 18, 2006 (the "Merger Agreement") has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby\nthe Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach\nof\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the "Non-Compete Period"), neither Seller nor any of\nSeller's Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the "Territory.")\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise\nfinance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a "Competing Business"), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, "Affiliate" of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where "control" means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller's Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor\nany\nof Seller's Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller's Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute "interference" under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company's prior written consent (which consent shall not unreasonably be withheld), Seller and Seller's Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company's withholding of consent with respect to Seller's or Seller's Affiliate's hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller's\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller's Affiliates wishes to hire any such person or persons, it shall SO notify the Company (the "Notice'),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company's receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany,\nor in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute "interference" under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company.:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company.) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nAndrew Milstein\n16 Foulet Drive\nPrinceton, NJ 08540\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller's execution, delivery and performance of\nthis\nAgreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability.. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\n4\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof\nthe invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application\nof\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing\nof\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service\nto\nbecome effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word "including" shall mean including without limitation.\n(j) No Third-Party. Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller's breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(1) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n* * * * *\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy:\n/s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Andrew Milstein\nAndrew Milstein	EX-2.3 4 dex23.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - ANDREW MILSTEIN\nExhibit 2.3\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Andrew Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business”), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller ’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nAndrew Milstein\n16 Foulet Drive\nPrinceton, NJ 08540\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\n4\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service to\nbecome effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n*****\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy: /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Andrew Milstein\nAndrew Milstein
7496116e8680dac321f36147b6312411.pdf	effective_date jurisdiction party term	EX-3 2 d838170dex3.htm EX-3\nExhibit 3\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the “Agreement”) is made by and between Actuate Corporation, a Delaware corporation with its\nprincipal place of business located at 951 Mariners Island Boulevard, San Mateo, CA 94404 (“Actuate”), and Open Text Corporation, a\ncorporation incorporated pursuant to the laws of Canada, with its principal place of business located at 275 Frank Tompa Drive, Waterloo, ON\nN2L OA1 (“Company”). Actuate and Company intend to discuss a potential business relationship.\nEach undersigned party (the “Receiving Party”) and their respective directors, officers, employees, agents, or advisors (including, without\nlimitation, legal advisors, accountants, consultants, bankers, and financial advisors) and potential sources of financing (collectively,\n“Representatives”) understands that during these discussions the other party (the “Disclosing Party’’) may disclose Proprietary Information (as\ndefined herein) relating to the Disclosing Party’s business.\nIn consideration of the parties’ discussions and any access the Receiving Party may have to Proprietary Information of the Disclosing Party, the\nReceiving Party hereby agrees as follows:\n1. As used herein, the term “Proprietary Information” refers to any and all Information of a confidential, proprietary, or secret nature which\nis applicable to or related In any way to (i) the business, present or future, of the Disclosing Party, (ii) the research and development or\ninvestigations of the Disclosing Party or (iii) the business of any customer of the Disclosing Party; provided, in each case, that such information\nis delivered to the Receiving Party by the Disclosing Party and (a) is marked or identified in writing as “Confidential”, (b) if verbal or visual\ndisclosure, is identified as “Confidential” in a writing within ten (10) business days of such disclosure, or (c) is information that the Receiving\nParty actually knew or reasonably should have known was confidential. Proprietary Information may include, for example and without\nlimitation, the product offering, content partners, product pricing, product availability, computer programs, technical drawings, algorithms,\nprocesses, ideas, schematics, trade secrets, processes, formulas, data, know-how, improvements, inventions (whether patentable or not),\ntechniques, marketing plans, forecasts and strategies, and information concerning customers or vendors. Proprietary Information shall also\ninclude all information of a like nature owned by any other person and furnished to the Disclosing Party by such other person pursuant to an\nundertaking by the Disclosing Party to maintain the same in confidence.\n2. The Receiving Party agrees (a) to hold the Disclosing Party’s Proprietary Information In strict confidence and to take all reasonable\nprecautions to protect such Proprietary Information (including, without limitation, all precautions that Receiving Party employs with respect to\nits confidential materials), (b) not to divulge any such Proprietary Information or any information derived therefrom to any third person without\nprior written permission of the Disclosing Party, excluding disclosure to Representatives, (c) not to make any use whatsoever at any time of such\nProprietary Information except to evaluate internally whether to enter into the contemplated business relationship with the Disclosing Party, and\n(d) not to copy or reverse engineer any such Proprietary Information. Any employee given access to any such Proprietary Information must have\na legitimate “need to know” and be subject to restrictions on disclosure of Proprietary Information practically identical to the terms set forth\nherein. Without granting any right or license, the Disclosing Party agrees that the foregoing clauses (a), (b) and (c) shall not apply with respect to\nany information that (i) is or (through no improper action or inaction by the Receiving Party or any agent, consultant or employee) becomes\ngenerally available to the public, or (ii) was or is rightfully in Receiving Party’s possession or the possession of any of its Representatives or was\nknown by it or its Representatives without restriction prior to receipt from the Disclosing Party, or (iii) was or is rightfully disclosed to Receiving\nParty or any of its Representatives by a third party provided the Receiving Party complies with restrictions imposed by the third party, or (iv) was\nor is independently developed without\nuse of any Proprietary Information of the Disclosing Party. The Receiving Party and its Representatives may make disclosures required by court\norder or any legal or judicial process, without any liability hereunder, provided the Receiving Party uses reasonable efforts to limit disclosure and\nto obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate In the proceeding to the extent legally\npermissible and reasonably practicable.\n3. Promptly upon receipt of a written request by the Disclosing Party at any time (which will be effective if actually received or three days\nafter mailed first class postage prepaid to the Receiving Party’s address herein), the Receiving Party will turn over to the Disclosing Party, or, at\nits sole discretion, destroy and certify to the Receiving party in writing the destruction of all Proprietary Information of the Disclosing Party and\nall documents or media containing any such Proprietary Information and any and all copies or extracts thereof; provided, however, the Company\nand its Representatives shall not be obligated to return or destroy Proprietary Information to the extent otherwise required by law, regulation, rule\nor practice governing professionals or any internal compliance policy or procedure required by law, regulation rule of practice governing\nprofessionals. The Receiving Party understands that nothing requires the Disclosing Party to proceed with any proposed transaction or\nrelationship in connection with which Proprietary Information may be disclosed.\n4. Except to the extent required by law, neither party shall disclose the existence or subject matter of the negotiations or business\nrelationship contemplated by this Agreement.\n5. The parties acknowledge and agree that due to the unique nature of the possible transaction between the parties, there can be no adequate\nremedy at law for any material breach of this Agreement, that any such breach may allow the breaching party or third parties to unfairly compete\nwith the non-breaching party, resulting in irreparable harm to the non-breaching party, and therefore, that upon any such breach or any threat\nthereof, the non-breaching party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law. The\nReceiving Party will notify the Disclosing Party In writing immediately upon the occurrence of any unauthorized release or other breach of\nwhich it is aware.\n6. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive In any geographic area and in any form with the other party’s product(s) or\nservice(s). However, this paragraph shall not be deemed to grant to either party any license under the other party’s copyrights or patents.\n7. During the one year period commencing on the date of this Agreement, the Company will not solicit or seek to employ any key\nemployee or executive officer of Actuate or any subsidiary or other affiliate of Actuate with whom the Company had contact or became aware of\nin connection with the possible transaction; provided, however, that the foregoing provisions shall not prohibit the solicitation or employment of\nany such person (i) resulting from general advertisements for employment conducted by the Company (including any recruitment efforts\nconducted by any recruitment agency, provided that the Company has not directed such recruitment efforts at such person), (ii) if such person\napproaches the Company on an unsolicited basis or (iii) following the cessation of such person’s employment with Actuate without any\nsolicitation or encouragement by the Company.\n8. From the date of this Agreement until May 31 , 2015 (the “Standstill Period”) the Company will not, in any manner, directly or indirectly\nthrough any third party:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Actuate or any securities of\nany subsidiary or other affiliate of Actuate, (ii) any acquisition of any assets of Actuate or any assets of any subsidiary or other affiliate of\nActuate, (iii) any tender offer, exchange offer, merger. business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Actuate or any subsidiary or other affiliate of Actuate, or involving any securities or assets of Actuate or any\nsecurities or assets of any subsidiary or other affiliate of Actuate, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules\nof the Securities and Exchange Commission) or consents with respect to any securities of Actuate;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Actuate;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Actuate;\n(d) take any action that might require Actuate to make a public announcement regarding any of the types of matters set forth in clause “(a)”\nof this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a) “, “(b)”, “(c)”\nor “(d)” of this sentence; or\n(f) assist, induce or encourage any other individual and any corporation, partnership, entity, group, tribunal or governmental authority\n(“Person”) to take any action of the type referred to In clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence.\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\nNotwithstanding the foregoing, the Company is permitted to purchase any securities that does not in any event result in an aggregate ownership\nby the Company of more than 5% of the outstanding amount of any class of securities of Actuate or of any subsidiary or other affiliate of\nActuate. Further, and notwithstanding the foregoing, the Company shall not be prohibited from (i) making any proposal to the board of directors\nof Actuate, which would not reasonably be expected to require a public announcement by Actuate or (ii) requesting that Actuate, directly or\nindirectly, waive or amend any of the provisions of this Section 8. Finally, and notwithstanding the foregoing, Actuate acknowledges and agrees\nthat any non-disclosure agreement it or its affiliates have entered into or will enter into with a Person to explore a potential transaction for the\nsale of more than 50% of the outstanding voting equity securities of Actuate, or a sale of substantially all of the assets of Actuate, has or will\nhave “standstill” provisions similar or substantially similar to the provisions set forth above in this Section 8 applicable to the Company.\n9. This Agreement shall expire and cease to have any force or effect on the earlier of (i) eighteen months from the date hereof or (ii) the\ndate of consummation of a transaction between the parties.\n10. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal,\ninvalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise\nremain in full force and effect. This Agreement shall be governed by the law of the State of California without regard to the conflicts of law\nprovisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with\nrespect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to reasonable costs and\nattorneys’ fees. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly\nauthorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth below.\n[Signature page follows.]\nDate: July 24, 2014\nACTUATE CORPORATION\nBy: /s/ Thomas McKeever\nName: Thomas McKeever\nTitle: SVP, GC, Corp. Dev. & Sec.\nOPEN TEXT CORPORATION\nBy: /s/ Gordon A. Davies\nName: Gordon A. Davies\nTitle: Chief Legal Officer &\nCorporate Secretary	EX-3 2 d838170dex3.htm EX-3\nExhibit 3\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the “Agreement”) is made by and between Actuate Corporation, a Delaware corporation with its\nprincipal place of business located at 951 Mariners Island Boulevard, San Mateo, CA 94404 (“Actuate”), and Open Text Corporation, a\ncorporation incorporated pursuant to the laws of Canada, with its principal place of business located at 275 Frank Tompa Drive, Waterloo, ON\nN2L OA1 (“Company”). Actuate and Company intend to discuss a potential business relationship.\nEach undersigned party (the “Receiving Party™) and their respective directors, officers, employees, agents, or advisors (including, without\nlimitation, legal advisors, accountants, consultants, bankers, and financial advisors) and potential sources of financing (collectively,\n“Representatives”) understands that during these discussions the other party (the “Disclosing Party’’) may disclose Proprietary Information (as\ndefined herein) relating to the Disclosing Party’s business.\nIn consideration of the parties’ discussions and any access the Receiving Party may have to Proprietary Information of the Disclosing Party, the\nReceiving Party hereby agrees as follows:\n1. As used herein, the term “Proprietary Information” refers to any and all Information of a confidential, proprietary, or secret nature which\nis applicable to or related In any way to (i) the business, present or future, of the Disclosing Party, (ii) the research and development or\ninvestigations of the Disclosing Party or (iii) the business of any customer of the Disclosing Party; provided, in each case, that such information\nis delivered to the Receiving Party by the Disclosing Party and (a) is marked or identified in writing as “Confidential”, (b) if verbal or visual\ndisclosure, is identified as “Confidential” in a writing within ten (10) business days of such disclosure, or (c) is information that the Receiving\nParty actually knew or reasonably should have known was confidential. Proprietary Information may include, for example and without\nlimitation, the product offering, content partners, product pricing, product availability, computer programs, technical drawings, algorithms,\nprocesses, ideas, schematics, trade secrets, processes, formulas, data, know-how, improvements, inventions (whether patentable or not),\ntechniques, marketing plans, forecasts and strategies, and information concerning customers or vendors. Proprietary Information shall also\ninclude all information of a like nature owned by any other person and furnished to the Disclosing Party by such other person pursuant to an\nundertaking by the Disclosing Party to maintain the same in confidence.\n2. The Receiving Party agrees (a) to hold the Disclosing Party’s Proprietary Information In strict confidence and to take all reasonable\nprecautions to protect such Proprietary Information (including, without limitation, all precautions that Receiving Party employs with respect to\nits confidential materials), (b) not to divulge any such Proprietary Information or any information derived therefrom to any third person without\nprior written permission of the Disclosing Party, excluding disclosure to Representatives, (c) not to make any use whatsoever at any time of such\nProprietary Information except to evaluate internally whether to enter into the contemplated business relationship with the Disclosing Party, and\n(d) not to copy or reverse engineer any such Proprietary Information. Any employee given access to any such Proprietary Information must have\na legitimate “need to know” and be subject to restrictions on disclosure of Proprietary Information practically identical to the terms set forth\nherein. Without granting any right or license, the Disclosing Party agrees that the foregoing clauses (a), (b) and (c) shall not apply with respect to\nany information that (i) is or (through no improper action or inaction by the Receiving Party or any agent, consultant or employee) becomes\ngenerally available to the public, or (ii) was or is rightfully in Receiving Party’s possession or the possession of any of its Representatives or was\nknown by it or its Representatives without restriction prior to receipt from the Disclosing Party, or (iii) was or is rightfully disclosed to Receiving\nParty or any of its Representatives by a third party provided the Receiving Party complies with restrictions imposed by the third party, or (iv) was\nor is independently developed without\nuse of any Proprietary Information of the Disclosing Party. The Receiving Party and its Representatives may make disclosures required by court\norder or any legal or judicial process, without any liability hereunder, provided the Receiving Party uses reasonable efforts to limit disclosure and\nto obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate In the proceeding to the extent legally\npermissible and reasonably practicable.\n3. Promptly upon receipt of a written request by the Disclosing Party at any time (which will be effective if actually received or three days\nafter mailed first class postage prepaid to the Receiving Party’s address herein), the Receiving Party will turn over to the Disclosing Party, or, at\nits sole discretion, destroy and certify to the Receiving party in writing the destruction of all Proprietary Information of the Disclosing Party and\nall documents or media containing any such Proprietary Information and any and all copies or extracts thereof; provided, however, the Company\nand its Representatives shall not be obligated to return or destroy Proprietary Information to the extent otherwise required by law, regulation, rule\nor practice governing professionals or any internal compliance policy or procedure required by law, regulation rule of practice governing\nprofessionals. The Receiving Party understands that nothing requires the Disclosing Party to proceed with any proposed transaction or\nrelationship in connection with which Proprietary Information may be disclosed.\n4. Except to the extent required by law, neither party shall disclose the existence or subject matter of the negotiations or business\nrelationship contemplated by this Agreement.\n5. The parties acknowledge and agree that due to the unique nature of the possible transaction between the parties, there can be no adequate\nremedy at law for any material breach of this Agreement, that any such breach may allow the breaching party or third parties to unfairly compete\nwith the non-breaching party, resulting in irreparable harm to the non-breaching party, and therefore, that upon any such breach or any threat\nthereof, the non-breaching party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law. The\nReceiving Party will notify the Disclosing Party In writing immediately upon the occurrence of any unauthorized release or other breach of\nwhich it is aware.\n6. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive In any geographic area and in any form with the other party’s product(s) or\nservice(s). However, this paragraph shall not be deemed to grant to either party any license under the other party’s copyrights or patents.\n7. During the one year period commencing on the date of this Agreement, the Company will not solicit or seek to employ any key\nemployee or executive officer of Actuate or any subsidiary or other affiliate of Actuate with whom the Company had contact or became aware of\nin connection with the possible transaction; provided, however, that the foregoing provisions shall not prohibit the solicitation or employment of\nany such person (i) resulting from general advertisements for employment conducted by the Company (including any recruitment efforts\nconducted by any recruitment agency, provided that the Company has not directed such recruitment efforts at such person), (ii) if such person\napproaches the Company on an unsolicited basis or (iii) following the cessation of such person’s employment with Actuate without any\nsolicitation or encouragement by the Company.\n8. From the date of this Agreement until May 31, 2015 (the “Standstill Period”) the Company will not, in any manner, directly or indirectly\nthrough any third party:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Actuate or any securities of\nany subsidiary or other affiliate of Actuate, (ii) any acquisition of any assets of Actuate or any assets of any subsidiary or other affiliate of\nActuate, (iii) any tender offer, exchange offer, merger. business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Actuate or any subsidiary or other affiliate of Actuate, or involving any securities or assets of Actuate or any\nsecurities or assets of any subsidiary or other affiliate of Actuate, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules\nof the Securities and Exchange Commission) or consents with respect to any securities of Actuate;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Actuate;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Actuate;\n(d) take any action that might require Actuate to make a public announcement regarding any of the types of matters set forth in clause “(a)”\nof this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a) “, “(b)”, “(c)”\nor “(d)” of this sentence; or\n(f) assist, induce or encourage any other individual and any corporation, partnership, entity, group, tribunal or governmental authority\n(“Person”) to take any action of the type referred to In clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence.\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\nNotwithstanding the foregoing, the Company is permitted to purchase any securities that does not in any event result in an aggregate ownership\nby the Company of more than 5% of the outstanding amount of any class of securities of Actuate or of any subsidiary or other affiliate of\nActuate. Further, and notwithstanding the foregoing, the Company shall not be prohibited from (i) making any proposal to the board of directors\nof Actuate, which would not reasonably be expected to require a public announcement by Actuate or (ii) requesting that Actuate, directly or\nindirectly, waive or amend any of the provisions of this Section 8. Finally, and notwithstanding the foregoing, Actuate acknowledges and agrees\nthat any non-disclosure agreement it or its affiliates have entered into or will enter into with a Person to explore a potential transaction for the\nsale of more than 50% of the outstanding voting equity securities of Actuate, or a sale of substantially all of the assets of Actuate, has or will\nhave “standstill” provisions similar or substantially similar to the provisions set forth above in this Section 8 applicable to the Company.\n9. This Agreement shall expire and cease to have any force or effect on the earlier of (i) eighteen months from the date hereof or (ii) the\ndate of consummation of a transaction between the parties.\n10. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal,\ninvalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise\nremain in full force and effect. This Agreement shall be governed by the law of the State of California without regard to the conflicts of law\nprovisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with\nrespect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to reasonable costs and\nattorneys’ fees. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly\nauthorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth below.\n[Signature page follows. ]\nDate: July 24, 2014\nACTUATE CORPORATION\nBy: /s/ Thomas McKeever\nName: Thomas McKeever\nTitle: SVP, GC, Corp. Dev. & Sec. OPEN TEXT CORPORATION\nBy: /s/ Gordon A. Davies\nName: Gordon A. Davies\nTitle: Chief L.egal Officer &\nCorporate Secretary	EX-3 2 d838170dex3.htm EX-3\nExhibit 3\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the "Agreement") is made by and between Actuate Corporation, a Delaware corporation with its\nprincipal place of business located at 951 Mariners Island Boulevard, San Mateo, CA 94404 ("Actuate"), and Open Text Corporation, a\ncorporation incorporated pursuant to the laws of Canada, with its principal place of business located at 275 Frank Tompa Drive, Waterloo, ON\nN2L OA1 ("Company"). Actuate and Company intend to discuss a potential business relationship.\nEach undersigned party (the "Receiving Party") and their respective directors, officers, employees, agents, or advisors (including, without\nlimitation, legal advisors, accountants, consultants, bankers, and financial advisors) and potential sources of financing (collectively,\n"Representatives") understands that during these discussions the other party (the "Disclosing Party") may disclose Proprietary Information (as\ndefined herein) relating to the Disclosing Party's business.\nIn consideration of the parties' discussions and any access the Receiving Party may have to Proprietary Information of the Disclosing Party, the\nReceiving Party hereby agrees as follows:\n1. As used herein, the term "Proprietary Information" refers to any and all Information of a confidential, proprietary, or secret nature which\nis applicable to or related In any way to (i) the business, present or future, of the Disclosing Party, (ii) the research and development or\ninvestigations of the Disclosing Party or (iii) the business of any customer of the Disclosing Party; provided, in each case, that such information\nis delivered to the Receiving Party by the Disclosing Party and (a) is marked or identified in writing as "Confidential" (b) if verbal or visual\ndisclosure, is identified as "Confidential" in a writing within ten (10) business days of such disclosure, or (c) is information that the Receiving\nParty actually knew or reasonably should have known was confidential. Proprietary Information may include, for example and without\nlimitation, the product offering, content partners, product pricing, product availability, computer programs, technical drawings, algorithms,\nprocesses, ideas, schematics, trade secrets, processes, formulas, data, know-how, improvements, inventions (whether patentable or not),\ntechniques, marketing plans, forecasts and strategies, and information concerning customers or vendors. Proprietary Information shall also\ninclude all information of a like nature owned by any other person and furnished to the Disclosing Party by such other person pursuant to\nan\nundertaking by the Disclosing Party to maintain the same in confidence.\n2. The Receiving Party agrees (a) to hold the Disclosing Party's Proprietary Information In strict confidence and to take all reasonable\nprecautions to protect such Proprietary Information (including, without limitation, all precautions that Receiving Party employs with respect\nto\nits confidential materials), (b) not to divulge any such Proprietary Information or any information derived therefrom to any third person without\nprior written permission of the Disclosing Party, excluding disclosure to Representatives, (c) not to make any use whatsoever at any time of such\nProprietary Information except to evaluate internally whether to enter into the contemplated business relationship with the Disclosing Party, and\n(d) not to copy or reverse engineer any such Proprietary Information. Any employee given access to any such Proprietary Information must have\na legitimate "need to know" and be subject to restrictions on disclosure of Proprietary Information practically identical to the terms set forth\nherein. Without granting any right or license, the Disclosing Party agrees that the foregoing clauses (a), (b) and (c) shall not apply with respect to\nany information that (i) is or (through no improper action or inaction by the Receiving Party or any agent, consultant or employee) becomes\ngenerally available to the public, or (ii) was or is rightfully in Receiving Party's possession or the possession of any of its Representatives or was\nknown by it or its Representatives without restriction prior to receipt from the Disclosing Party, or (iii) was or is rightfully disclosed to Receiving\nParty or any of its Representatives by a third party provided the Receiving Party complies with restrictions imposed by the third party, or (iv) was\nor is independently developed without\nuse of any Proprietary Information of the Disclosing Party. The Receiving Party and its Representatives may make disclosures required by court\norder or any legal or judicial process, without any liability hereunder, provided the Receiving Party uses reasonable efforts to limit disclosure and\nto obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate In the proceeding to the extent legally\npermissible and reasonably practicable.\n3. Promptly upon receipt of a written request by the Disclosing Party at any time (which will be effective if actually received or three days\nafter mailed first class postage prepaid to the Receiving Party's address herein), the Receiving Party will turn over to the Disclosing Party, or, at\nits sole discretion, destroy and certify to the Receiving party in writing the destruction of all Proprietary Information of the Disclosing Party and\nall documents or media containing any such Proprietary Information and any and all copies or extracts thereof; provided, however, the Company\nand its Representatives shall not be obligated to return or destroy Proprietary Information to the extent otherwise required by law, regulation, rule\nor practice governing professionals or any internal compliance policy or procedure required by law, regulation rule of practice governing\nprofessionals. The Receiving Party understands that nothing requires the Disclosing Party to proceed with any proposed transaction or\nrelationship in connection with which Proprietary Information may be disclosed.\n4. Except to the extent required by law, neither party shall disclose the existence or subject matter of the negotiations or business\nrelationship contemplated by this Agreement.\n5. The parties acknowledge and agree that due to the unique nature of the possible transaction between the parties, there can be no adequate\nremedy at law for any material breach of this Agreement, that any such breach may allow the breaching party or third parties to unfairly compete\nwith the non-breaching party, resulting in irreparable harm to the non-breaching party, and therefore, that upon any such breach or any threat\nthereof, the non-breaching party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law.\nThe\nReceiving Party will notify the Disclosing Party In writing immediately upon the occurrence of any unauthorized release or other breach\nof\nwhich it is aware.\n6. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility\nof\na\npotential\nbusiness\nrelationship\nshall\nbe\nconstrued\nas\nto\nprevent\neither\nparty\nfrom\npursuing\nsimilar\ndiscussions\nwith\nthird\nparties\nin\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive In any geographic area and in any form with the other party's product(s)\nor\nservice(s). However, this paragraph shall not be deemed to grant to either party any license under the other party's copyrights or patents.\n7. During the one year period commencing on the date of this Agreement, the Company will not solicit or seek to employ any key\nemployee or executive officer of Actuate or any subsidiary or other affiliate of Actuate with whom the Company had contact or became aware of\nin connection with the possible transaction; provided, however, that the foregoing provisions shall not prohibit the solicitation or employment\nof\nany such person (i) resulting from general advertisements for employment conducted by the Company (including any recruitment efforts\nconducted by any recruitment agency, provided that the Company has not directed such recruitment efforts at such person), (ii) if such person\napproaches the Company on an unsolicited basis or (iii) following the cessation of such person's employment with Actuate without any\nsolicitation or encouragement by the Company.\n8. From the date of this Agreement until May 31 2015 (the "Standstill Period") the Company will not, in any manner, directly or indirectly\nthrough any third party:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Actuate or any securities\nof\nany subsidiary or other affiliate of Actuate, (ii) any acquisition of any assets of Actuate or any assets of any subsidiary or other affiliate\nof\nActuate, (iii) any tender offer, exchange offer, merger. business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Actuate or any subsidiary or other affiliate of Actuate, or involving any securities or assets of Actuate or any\nsecurities or assets of any subsidiary or other affiliate of Actuate, or (iv) any "solicitation" of "proxies" (as those terms are used in the proxy rules\nof the Securities and Exchange Commission) or consents with respect to any securities of Actuate;\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Actuate;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Actuate;\n(d) take any action that might require Actuate to make a public announcement regarding any of the types of matters set forth in clause "(a)"\nof this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause "(a) "(b)", "(c)"\nor "(d)" of this sentence; or\n(f) assist, induce or encourage any other individual and any corporation, partnership, entity, group, tribunal or governmental authority\n("Person") to take any action of the type referred to In clause "(a)", "(b)", "(c)", "(d)" or "(e)" of this sentence.\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\nNotwithstanding the foregoing, the Company is permitted to purchase any securities that does not in any event result in an aggregate ownership\nby the Company of more than 5% of the outstanding amount of any class of securities of Actuate or of any subsidiary or other affiliate of\nActuate. Further, and notwithstanding the foregoing, the Company shall not be prohibited from (i) making any proposal to the board of directors\nof Actuate, which would not reasonably be expected to require a public announcement by Actuate or (ii) requesting that Actuate, directly or\nindirectly, waive or amend any of the provisions of this Section 8. Finally, and notwithstanding the foregoing, Actuate acknowledges and agrees\nthat any non-disclosure agreement it or its affiliates have entered into or will enter into with a Person to explore a potential transaction for the\nsale of more than 50% of the outstanding voting equity securities of Actuate, or a sale of substantially all of the assets of Actuate, has or will\nhave "standstill" provisions similar or substantially similar to the provisions set forth above in this Section 8 applicable to the Company.\n9. This Agreement shall expire and cease to have any force or effect on the earlier of (i) eighteen months from the date hereof or (ii) the\ndate of consummation of a transaction between the parties.\n10. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal,\ninvalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise\nremain in full force and effect. This Agreement shall be governed by the law of the State of California without regard to the conflicts of law\nprovisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with\nrespect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to reasonable costs and\nattorneys' fees. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly\nauthorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth below.\n(Signature page follows.\nDate: July 24, 2014\nACTUATE CORPORATION\nOPEN TEXT CORPORATION\nBy: /s/ Thomas McKeever\nBy: /s/ Gordon A. Davies\nName: Thomas McKeever\nName: Gordon A. Davies\nTitle: SVP, GC, Corp. Dev. & Sec.\nTitle: Chief Legal Officer &\nCorporate Secretary	EX-3 2 d838170dex3.htm EX-3\nExhibit 3\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the “Agreement”) is made by and between Actuate Corporation, a Delaware corporation with its\nprincipal place of business located at 951 Mariners Island Boulevard, San Mateo, CA 94404 (“Actuate”), and Open Text Corporation, a\ncorporation incorporated pursuant to the laws of Canada, with its principal place of business located at 275 Frank Tompa Drive, Waterloo, ON\nN2L OA1 (“Company”). Actuate and Company intend to discuss a potential business relationship.\nEach undersigned party (the “Receiving Party”) and their respective directors, officers, employees, agents, or advisors (including, without\nlimitation, legal advisors, accountants, consultants, bankers, and financial advisors) and potential sources of financing (collectively,\n“Representatives”) understands that during these discussions the other party (the “Disclosing Party’’) may disclose Proprietary Information (as\ndefined herein) relating to the Disclosing Party’s business.\nIn consideration of the parties’ discussions and any access the Receiving Party may have to Proprietary Information of the Disclosing Party, the\nReceiving Party hereby agrees as follows:\n1. As used herein, the term “Proprietary Information” refers to any and all Information of a confidential, proprietary, or secret nature which\nis applicable to or related In any way to (i) the business, present or future, of the Disclosing Party, (ii) the research and development or\ninvestigations of the Disclosing Party or (iii) the business of any customer of the Disclosing Party; provided, in each case, that such information\nis delivered to the Receiving Party by the Disclosing Party and (a) is marked or identified in writing as “Confidential”, (b) if verbal or visual\ndisclosure, is identified as “Confidential” in a writing within ten (10) business days of such disclosure, or (c) is information that the Receiving\nParty actually knew or reasonably should have known was confidential. Proprietary Information may include, for example and without\nlimitation, the product offering, content partners, product pricing, product availability, computer programs, technical drawings, algorithms,\nprocesses, ideas, schematics, trade secrets, processes, formulas, data, know-how, improvements, inventions (whether patentable or not),\ntechniques, marketing plans, forecasts and strategies, and information concerning customers or vendors. Proprietary Information shall also\ninclude all information of a like nature owned by any other person and furnished to the Disclosing Party by such other person pursuant to an\nundertaking by the Disclosing Party to maintain the same in confidence.\n2. The Receiving Party agrees (a) to hold the Disclosing Party’s Proprietary Information In strict confidence and to take all reasonable\nprecautions to protect such Proprietary Information (including, without limitation, all precautions that Receiving Party employs with respect to\nits confidential materials), (b) not to divulge any such Proprietary Information or any information derived therefrom to any third person without\nprior written permission of the Disclosing Party, excluding disclosure to Representatives, (c) not to make any use whatsoever at any time of such\nProprietary Information except to evaluate internally whether to enter into the contemplated business relationship with the Disclosing Party, and\n(d) not to copy or reverse engineer any such Proprietary Information. Any employee given access to any such Proprietary Information must have\na legitimate “need to know” and be subject to restrictions on disclosure of Proprietary Information practically identical to the terms set forth\nherein. Without granting any right or license, the Disclosing Party agrees that the foregoing clauses (a), (b) and (c) shall not apply with respect to\nany information that (i) is or (through no improper action or inaction by the Receiving Party or any agent, consultant or employee) becomes\ngenerally available to the public, or (ii) was or is rightfully in Receiving Party’s possession or the possession of any of its Representatives or was\nknown by it or its Representatives without restriction prior to receipt from the Disclosing Party, or (iii) was or is rightfully disclosed to Receiving\nParty or any of its Representatives by a third party provided the Receiving Party complies with restrictions imposed by the third party, or (iv) was\nor is independently developed without\nuse of any Proprietary Information of the Disclosing Party. The Receiving Party and its Representatives may make disclosures required by court\norder or any legal or judicial process, without any liability hereunder, provided the Receiving Party uses reasonable efforts to limit disclosure and\nto obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate In the proceeding to the extent legally\npermissible and reasonably practicable.\n3. Promptly upon receipt of a written request by the Disclosing Party at any time (which will be effective if actually received or three days\nafter mailed first class postage prepaid to the Receiving Party’s address herein), the Receiving Party will turn over to the Disclosing Party, or, at\nits sole discretion, destroy and certify to the Receiving party in writing the destruction of all Proprietary Information of the Disclosing Party and\nall documents or media containing any such Proprietary Information and any and all copies or extracts thereof; provided, however, the Company\nand its Representatives shall not be obligated to return or destroy Proprietary Information to the extent otherwise required by law, regulation, rule\nor practice governing professionals or any internal compliance policy or procedure required by law, regulation rule of practice governing\nprofessionals. The Receiving Party understands that nothing requires the Disclosing Party to proceed with any proposed transaction or\nrelationship in connection with which Proprietary Information may be disclosed.\n4. Except to the extent required by law, neither party shall disclose the existence or subject matter of the negotiations or business\nrelationship contemplated by this Agreement.\n5. The parties acknowledge and agree that due to the unique nature of the possible transaction between the parties, there can be no adequate\nremedy at law for any material breach of this Agreement, that any such breach may allow the breaching party or third parties to unfairly compete\nwith the non-breaching party, resulting in irreparable harm to the non-breaching party, and therefore, that upon any such breach or any threat\nthereof, the non-breaching party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law. The\nReceiving Party will notify the Disclosing Party In writing immediately upon the occurrence of any unauthorized release or other breach of\nwhich it is aware.\n6. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive In any geographic area and in any form with the other party’s product(s) or\nservice(s). However, this paragraph shall not be deemed to grant to either party any license under the other party’s copyrights or patents.\n7. During the one year period commencing on the date of this Agreement, the Company will not solicit or seek to employ any key\nemployee or executive officer of Actuate or any subsidiary or other affiliate of Actuate with whom the Company had contact or became aware of\nin connection with the possible transaction; provided, however, that the foregoing provisions shall not prohibit the solicitation or employment of\nany such person (i) resulting from general advertisements for employment conducted by the Company (including any recruitment efforts\nconducted by any recruitment agency, provided that the Company has not directed such recruitment efforts at such person), (ii) if such person\napproaches the Company on an unsolicited basis or (iii) following the cessation of such person’s employment with Actuate without any\nsolicitation or encouragement by the Company.\n8. From the date of this Agreement until May 31 , 2015 (the “Standstill Period”) the Company will not, in any manner, directly or indirectly\nthrough any third party:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Actuate or any securities of\nany subsidiary or other affiliate of Actuate, (ii) any acquisition of any assets of Actuate or any assets of any subsidiary or other affiliate of\nActuate, (iii) any tender offer, exchange offer, merger. business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Actuate or any subsidiary or other affiliate of Actuate, or involving any securities or assets of Actuate or any\nsecurities or assets of any subsidiary or other affiliate of Actuate, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules\nof the Securities and Exchange Commission) or consents with respect to any securities of Actuate;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Actuate;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Actuate;\n(d) take any action that might require Actuate to make a public announcement regarding any of the types of matters set forth in clause “(a)”\nof this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a) “, “(b)”, “(c)”\nor “(d)” of this sentence; or\n(f) assist, induce or encourage any other individual and any corporation, partnership, entity, group, tribunal or governmental authority\n(“Person”) to take any action of the type referred to In clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence.\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\nNotwithstanding the foregoing, the Company is permitted to purchase any securities that does not in any event result in an aggregate ownership\nby the Company of more than 5% of the outstanding amount of any class of securities of Actuate or of any subsidiary or other affiliate of\nActuate. Further, and notwithstanding the foregoing, the Company shall not be prohibited from (i) making any proposal to the board of directors\nof Actuate, which would not reasonably be expected to require a public announcement by Actuate or (ii) requesting that Actuate, directly or\nindirectly, waive or amend any of the provisions of this Section 8. Finally, and notwithstanding the foregoing, Actuate acknowledges and agrees\nthat any non-disclosure agreement it or its affiliates have entered into or will enter into with a Person to explore a potential transaction for the\nsale of more than 50% of the outstanding voting equity securities of Actuate, or a sale of substantially all of the assets of Actuate, has or will\nhave “standstill” provisions similar or substantially similar to the provisions set forth above in this Section 8 applicable to the Company.\n9. This Agreement shall expire and cease to have any force or effect on the earlier of (i) eighteen months from the date hereof or (ii) the\ndate of consummation of a transaction between the parties.\n10. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal,\ninvalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise\nremain in full force and effect. This Agreement shall be governed by the law of the State of California without regard to the conflicts of law\nprovisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with\nrespect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to reasonable costs and\nattorneys’ fees. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly\nauthorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth below.\n[Signature page follows.]\nDate: July 24, 2014\nACTUATE CORPORATION\nBy: /s/ Thomas McKeever\nName: Thomas McKeever\nTitle: SVP, GC, Corp. Dev. & Sec.\nOPEN TEXT CORPORATION\nBy: /s/ Gordon A. Davies\nName: Gordon A. Davies\nTitle: Chief Legal Officer &\nCorporate Secretary
7684f321eb08514fa1794427e73479b9.pdf	effective_date jurisdiction party term	EX-10.6 3 c00537exv10w6.htm REVISED FORM OF EXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nExhibit 10.6\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of\n, 2005 (the “Agreement”), Sears Holdings Corporation and its\ncontrolled affiliates and subsidiaries (“Sears”), and\n(“Executive”), intending to be legally bound and for good and\nvaluable consideration, agree as follows:\n1. Severance Benefits.\n(a) Continuation of Compensation. In the event that (x) Executive’s employment is terminated by each Sears entity by which she is\nemployed (the “Company”) for any reason other than Cause (as defined below), death or Disability (as defined below) or (y) Executive’s\nemployment is terminated by Executive for Good Reason (as defined below), subject to the provisions of Sections 6(e) and (f) and 10 herein, the\nCompany shall pay to Executive his annual base salary as in effect immediately prior to the date of termination for a period of one (1) year;\nprovided that, in any event, Sears’ obligations under this clause 1 shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent\nthat Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the Salary\nContinuation Period (as defined below). The amount described in Section 1(a) shall be paid on each regular payroll period following the date of\ntermination (the “Salary Continuation Period”) provided that if at the time that the executive terminates employment the executive is a “key\nemployee” or “specified employee” within the meaning of Code Section 409A and regulations issued thereunder, then, if necessary to comply\nwith Section 409A, payment to the executive shall not commence until six months after the executive’s termination of employment In addition to\nthe foregoing, a lump sum payment will be made to Executive within ten (10) days following the date of termination in an amount equal to the\nsum of any accrued base salary through the date of termination to the extent not theretofore paid and any vacation benefits that accrued prior to\nthe date of termination. No vacation will accrue after the date active employment ends. All salary continuation payments and benefits will\nterminate and forever lapse if Executive is employed by a “Sears Competitor” as defined in Section 6(b) herein.\n(b) Continuation of Benefits. During the Salary Continuation Period, Executive will be entitled to all benefits (other than as specified\nabove) for which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability and\nFlexible Spending Accounts. Executive and eligible dependents shall be entitled to continue to participate in the Company’s medical and dental\nplans in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). The cost of such COBRA coverage for\nExecutive and his dependents will be subsidized by the Company, so that Executive will be paying the same premium for medical and dental\nplan coverage during the Salary Continuation Period as an active employee. However, in the event Executive becomes employed by another\nemployer and is covered by such employer’s health benefits plan or program, the medical and dental benefits provided by the Company\nhereunder shall be secondary to such employer’s health benefits plan or program in accordance with the terms of the Company’s health benefit\nplans.\n(c) Long-Term Performance Program. The Long Term Performance Incentive Program grant for any multi-year performance period will be\ntreated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(d) Outplacement. From the date of termination pursuant to the first sentence of Section 1(a), Executive will be immediately eligible for\noutplacement services at the Company’s expense. The Company and Executive will mutually agree on which outplacement firm, among current\nvendors used by the Company, will provide these services. Such services will be provided for up to one (1) year from the beginning of the Salary\nContinuation Period or until employment is obtained, whichever occurs first.\n2. Definitions. For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(a) “Cause” shall mean (1) a material breach by Executive (other than a breach resulting from Executive’s incapacity due to a mental or\nphysical disability) of Executive’s duties and responsibilities which breach is demonstrably willful and deliberate on Executive’s part, is\ncommitted in bad faith or without reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of\ntime after receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving moral turpitude, or\n(3) dishonesty or willful misconduct in connection with Executive’s employment; and\n(b) “Disability” shall mean disability as defined under the long-term disability plan of Sears applicable to Executive.\n(c) “Good Reason” shall mean, without Executive’s written consent, (i) a reduction of more than 10% in the sum of Executive’s annual\nbase salary and target bonus from those in effect as of the date of this Agreement, (ii) a change in reporting relationship such that Executive\nreports to anyone other than the Chief Executive Officer, the Chairman of the Board, the Board of directors, (iii) a reduction in title or a material\ndiminution in duties, (iv) Executive’s mandatory relocation to an office more than 50 miles from the primary location at which Executive is\nrequired to perform Executive’s duties immediately prior to the date of this Agreement or (v) failure of a successor company to assume or fulfill\nthe obligations under this Agreement.\n3. Non-Disparagement. Executive will not take any actions detrimental to the interests of Sears, nor make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or\ndirectors, and will not authorize others to make derogatory or disparaging statements on Executive’s behalf.\n4. Intellectual Property Rights. Executive acknowledges that Executive’s development, work or research on any and all inventions or\nexpressions of ideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such\ninvention or expression of an idea relates to the business of Sears, or relates to\n-2-\nSears actual or demonstrably anticipated research or development, or results from any work performed by Executive for or on behalf of Sears,\nare hereby assigned to Sears, including Executive’s entire rights, title and interest. Executive will promptly disclose such invention or expression\nof an idea to Executive’s management and will, upon request, promptly execute a specific written assignment of title to Sears. If Executive\ncurrently holds any inventions or expressions of an idea, regardless of whether they were published or filed with the U.S. Patent and Trademark\nOffice, or is under contract to not so assign, Executive will list them on the last page of this Agreement.\n5. Confidentiality. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and\ndiscussions with Sears regarding this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner\nexcept: (a) as required by law or legal process; (b) to Executive’s spouse, domestic partner, or financial/legal advisors, all of whom shall agree to\nkeep such information confidential.\n6. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive’s position at Sears, Executive has learned or developed, or\nwill learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\ni. Therefore, for one (1) year from Executive’s last day of active employment, whether or not Executive receives severance\nbenefits pursuant to Section 1 hereto (“Severance Pay”), Executive will not, directly or indirectly, aid, assist, participate in,\nconsult with, render services for, accept a position with, become employed by, or otherwise enter into any relationship with\n(other than having a passive ownership interest in or being a customer of) any Sears Competitor.\nii. For purposes of this Agreement, “Sears Competitor” means\n1. Those companies listed on Appendix A, each of which Executive acknowledges is a Sears Competitor, whether or\n-3-\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 6(b)(ii)(2), below, and\n2. Any party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair and/or home services,\nwith combined annual revenue in excess of $500 million, (B) any vendor with combined annual gross sales of services\nor merchandise to Sears in excess of $100 million, or (C) a party engaged in any other line of business, in which Sears\nhas commenced business prior to the end of Executive’s active employment, with Sears having annual gross sales in\nthat line of business in excess of $50 million.\niii. Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to include\n(1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are new for Sears\nwith the prior written consent of Executive, which shall not be unreasonably withheld.\niv. Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada and that this\nnon-compete provision applies in any state of the United States, Puerto Rico or province of Canada in which Sears does\nbusiness.\n(c) Executive will provide Sears with such information as Sears may from time to time reasonably request to determine Executive’s\ncompliance with this Agreement. Executive authorizes Sears to contact Executive’s future employers and other entities with which Executive has\nany business relationship to determine Executive’s compliance with this Agreement or to communicate the contents of this Agreement to such\nemployers and entities. Executive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or\ncommunications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information\nand to otherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this\nAgreement are reasonable.\n(e) Upon the termination of Executive’s employment by either party, Executive will execute a binding General Release and Waiver of\nclaims in a form to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in\n-4-\na form substantially similar to the attached sample. If the General Release and Waiver is not signed or is signed but subsequently revoked,\nExecutive will not receive Severance Pay (if any) or any other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches or threatens\nto breach this Agreement, Executive consents to injunctive relief in favor of Sears without the necessity of Sears posting bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which may have resulted from a\nbreach of this Agreement, including a forfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears\nor Executive in any instance shall not be deemed a waiver of such provision in the future,\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 6(b),\nabove, commence during Executive’s continued employment with Sears, by written request to the Chief Executive Officer of Sears or the\nequivalent. Such a request will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears’ absolute discretion.\n7. Except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 6(e) and (f) and 10, such compensation and benefits\nshall not be reduced whether or not Executive obtains other employment (it being agreed, however, that Executive shall be obligated to seek\nother employment).\n8. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period\nof active employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved other than any\nsuch investigations, potential litigation or litigation between Sears and Executive. Sears will reimburse Executive for reasonable travel and out-\nof-pocket expenses incurred in connection with any such investigations, potential litigation or litigation.\n9. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n10. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement\nprovision (Section 3 herein), and the non-competition provisions (Section 6 herein) of this Agreement, Sears obligation to make salary\ncontinuation or any other payments under this Agreement will immediately cease.\n11. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be\nmodified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be\n-5-\ndeemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent\npermitted by law, as if such provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not\nbeen originally incorporated herein, as the case may be.\n12. This Agreement will be governed under the internal laws of the state of Illinois without regard to principles of conflicts of laws. Executive\nagrees that the state and federal courts located in the state of Illinois shall have exclusive jurisdiction in any action, Suit or proceeding based on\nor arising out of this Agreement, and Executive hereby: (a) submits to the personal jurisdiction of such courts; (b) consents to the service of\nprocess in connection with any action, suit, or proceeding against Executive; and (c) waives any other requirement (whether imposed by statute,\nrule of court, or otherwise) with respect to personal jurisdiction, venue or service of process.\n13. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is\nillegal or unenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory\njury. Further, should any claim arising out of Executive’s employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury\nor advisory jury.\n14. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive’s employment with Sears is\nterminable “at-will” by either party with or without cause and with or without notice.\n15. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions\nof this Agreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance\nplan or program. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained\nherein (with the exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated\n,200 _)andmay\nbe amended only by a writing signed by an authorized officer of Sears.\n16. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n17. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or\notherwise. This Agreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears or affiliate\nthereof and Executive.\n18. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date\nset forth below.\nSEARS HOLDINGS CORPORATION\nBY:\nEXECUTIVE\nDate\nDate\n-6-\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER\nSIGNING. ANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL\nCOUNSEL, SEARS HOLDINGS CORPORATION, 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO\nCONSULT WITH AN ATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting\nby, through, or under me hereby release, waive, and forever discharge Sears Holdings Corporation, its current and former agents, subsidiaries,\naffiliates, employees, officers, shareholders, successors, and assigns (“Sears”) from any and all liability, actions, charges, causes of action,\ndemands, damages, or claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or\nconnected with, my employment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in\ncontract (oral or written, express or implied), or in tort, or pursuant to statute, including any claim for age or other typos of discrimination under\nthe Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state,\nor local law or ordinance, to the fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General\nRelease and Waiver does not apply to any claims or rights that may arise after the date that I signed this General Release and Waiver. I\nunderstand that Sears is not admitting to any violation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file\na charge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under\nbenefit plans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family\nand Medical Leave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent\nand warrant that I have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim\nunder the ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under\nADEA, I shall be liable to Sears for its reasonable attorney’s fees and other litigation costs and expenses incurred in defending against such a\nsuit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General\nRelease and Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by\nnotifying the General Counsel of Sears in writing at Sears Holdings Corporation, 3333 Beverly Road, Hoffman Estates, Illinois 60179. I\nunderstand that this General Release and Waiver will not be effective until after this seven (7) day revocation period has expired.\nDate: SAMPLE ONLY — DO NOT SIGN\nSigned by: SAMPLE ONLY — DO NOT SIGN\nWitness by:\n-7-\nExecutive:\nDate:\n, 2005\nAppendix A\nto Executive Severance/Non-Compete Agreement\nIn addition to all companies otherwise meeting the definition of “Sears Competitor” in Section 6(b)(ii)(2) of the Executive Severance/Non-\nCompete Agreement to which this Appendix A is attached, the following companies are “Sears Competitors” for purposes of that Section 6(b)(i):\nRetail\nHome/Product Services\nDepartment Stores\nAce Hardware Corporation\nDillard’s, Inc.\nTruServe Corporation\nFederated Department Stores, Inc.\nLowe’s Companies, Inc.\nJ. C. Penney Company, Inc.\nMenard, Inc.\nKohls’ Corporation\nThe Home Depot, Inc.\nThe May Department Stores Company\nMervyn’s\nSaks Incorporated\nDiscount Stores\nOther\nKohl’s Corporation\nMaytag Corporation\nTarget Corporation\nWhirlpool Corporation\nWal-Mart Stores, Inc.\nThe ServiceMaster Company\nSpecialty Stores\nAutoZone, Inc.\nBed Bath & Beyond Inc.\nBest Buy Co., Inc.\nCarMax, Inc.\nCircuit City Stores, Inc.\nCompUSA Inc. (eliminate hyphen)\nFinlay Enterprises, Inc. (Jewelry)\nGap Inc.\nLimited Brands, Inc.\nLinens ‘n Things, Inc.\nOffice Depot, Inc.\nThe Pep Boys – Manny, Moe & Jack\nPier 1 Imports, Inc.\nTandy Brands Accessories, Inc.\nZale Corporation\n-8-	EX-10.6 3 c00537exv10w6.htm REVISED FORM OF EXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nExhibit 10.6\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of , 2005 (the “Agreement”), Sears Holdings Corporation and its\ncontrolled affiliates and subsidiaries (“Sears”), and (“Executive”), intending to be legally bound and for good and\nvaluable consideration, agree as follows:\n1. Severance Benefits.\n(a) Continuation of Compensation. In the event that (x) Executive’s employment is terminated by each Sears entity by which she is\nemployed (the “Company”) for any reason other than Cause (as defined below), death or Disability (as defined below) or (y) Executive’s\nemployment is terminated by Executive for Good Reason (as defined below), subject to the provisions of Sections 6(e) and (f) and 10 herein, the\nCompany shall pay to Executive his annual base salary as in effect immediately prior to the date of termination for a period of one (1) year;\nprovided that, in any event, Sears’ obligations under this clause 1 shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent\nthat Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the Salary\nContinuation Period (as defined below). The amount described in Section 1(a) shall be paid on each regular payroll period following the date of\ntermination (the “Salary Continuation Period”) provided that if at the time that the executive terminates employment the executive is a “key\nemployee” or “specified employee” within the meaning of Code Section 409A and regulations issued thereunder, then, if necessary to comply\nwith Section 409A, payment to the executive shall not commence until six months after the executive’s termination of employment In addition to\nthe foregoing, a lump sum payment will be made to Executive within ten (10) days following the date of termination in an amount equal to the\nsum of any accrued base salary through the date of termination to the extent not theretofore paid and any vacation benefits that accrued prior to\nthe date of termination. No vacation will accrue after the date active employment ends. All salary continuation payments and benefits will\nterminate and forever lapse if Executive is employed by a “Sears Competitor” as defined in Section 6(b) herein.\n(b) Continuation of Benefits. During the Salary Continuation Period, Executive will be entitled to all benefits (other than as specified\nabove) for which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability and\nFlexible Spending Accounts. Executive and eligible dependents shall be entitled to continue to participate in the Company’s medical and dental\nplans in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). The cost of such COBRA coverage for\nExecutive and his dependents will be subsidized by the Company, so that Executive will be paying the same premium for medical and dental\nplan coverage during the Salary Continuation Period as an active employee. However, in the event Executive becomes employed by another\nemployer and is covered by such employer’s health benefits plan or program, the medical and dental benefits provided by the Company\nhereunder shall be secondary to such employer’s health benefits plan or program in accordance with the terms of the Company’s health benefit\nplans.\n(c) Long-Term Performance Program. The Long Term Performance Incentive Program grant for any multi-year performance period will be\ntreated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(d) Outplacement. From the date of termination pursuant to the first sentence of Section 1(a), Executive will be immediately eligible for\noutplacement services at the Company’s expense. The Company and Executive will mutually agree on which outplacement firm, among current\nvendors used by the Company, will provide these services. Such services will be provided for up to one (1) year from the beginning of the Salary\nContinuation Period or until employment is obtained, whichever occurs first.\n2. Definitions. For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(a) “Cause” shall mean (1) a material breach by Executive (other than a breach resulting from Executive’s incapacity due to a mental or\nphysical disability) of Executive’s duties and responsibilities which breach is demonstrably willful and deliberate on Executive’s part, is\ncommitted in bad faith or without reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of\ntime after receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving moral turpitude, or\n(3) dishonesty or willful misconduct in connection with Executive’s employment; and\n(b) “Disability” shall mean disability as defined under the long-term disability plan of Sears applicable to Executive.\n(c) “Good Reason” shall mean, without Executive’s written consent, (i) a reduction of more than 10% in the sum of Executive’s annual\nbase salary and target bonus from those in effect as of the date of this Agreement, (ii) a change in reporting relationship such that Executive\nreports to anyone other than the Chief Executive Officer, the Chairman of the Board, the Board of directors, (iii) a reduction in title or a material\ndiminution in duties, (iv) Executive’s mandatory relocation to an office more than 50 miles from the primary location at which Executive is\nrequired to perform Executive’s duties immediately prior to the date of this Agreement or (v) failure of a successor company to assume or fulfill\nthe obligations under this Agreement.\n3. Non-Disparagement. Executive will not take any actions detrimental to the interests of Sears, nor make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or\ndirectors, and will not authorize others to make derogatory or disparaging statements on Executive’s behalf.\n4. Intellectual Property Rights. Executive acknowledges that Executive’s development, work or research on any and all inventions or\nexpressions of ideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such\ninvention or expression of an idea relates to the business of Sears, or relates to\n-\nSears actual or demonstrably anticipated research or development, or results from any work performed by Executive for or on behalf of Sears,\nare hereby assigned to Sears, including Executive’s entire rights, title and interest. Executive will promptly disclose such invention or expression\nof an idea to Executive’s management and will, upon request, promptly execute a specific written assignment of title to Sears. If Executive\ncurrently holds any inventions or expressions of an idea, regardless of whether they were published or filed with the U.S. Patent and Trademark\nOffice, or is under contract to not so assign, Executive will list them on the last page of this Agreement.\n5. Confidentiality. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and\ndiscussions with Sears regarding this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner\nexcept: (a) as required by law or legal process; (b) to Executive’s spouse, domestic partner, or financial/legal advisors, all of whom shall agree to\nkeep such information confidential.\n6. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(@) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive’s position at Sears, Executive has learned or developed, or\nwill learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\ni.  Therefore, for one (1) year from Executive’s last day of active employment, whether or not Executive receives severance\nbenefits pursuant to Section 1 hereto (“Severance Pay”), Executive will not, directly or indirectly, aid, assist, participate in,\nconsult with, render services for, accept a position with, become employed by, or otherwise enter into any relationship with\n(other than having a passive ownership interest in or being a customer of) any Sears Competitor.\nii.  For purposes of this Agreement, “Sears Competitor” means\n1.  Those companies listed on Appendix A, each of which Executive acknowledges is a Sears Competitor, whether or\n_3-\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 6(b)(ii)(2), below, and\n2. Any party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair and/or home services,\nwith combined annual revenue in excess of $500 million, (B) any vendor with combined annual gross sales of services\nor merchandise to Sears in excess of $100 million, or (C) a party engaged in any other line of business, in which Sears\nhas commenced business prior to the end of Executive’s active employment, with Sears having annual gross sales in\nthat line of business in excess of $50 million.\niii. Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to include\n(1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are new for Sears\nwith the prior written consent of Executive, which shall not be unreasonably withheld.\niv.  Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada and that this\nnon-compete provision applies in any state of the United States, Puerto Rico or province of Canada in which Sears does\nbusiness.\n(c) Executive will provide Sears with such information as Sears may from time to time reasonably request to determine Executive’s\ncompliance with this Agreement. Executive authorizes Sears to contact Executive’s future employers and other entities with which Executive has\nany business relationship to determine Executive’s compliance with this Agreement or to communicate the contents of this Agreement to such\nemployers and entities. Executive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or\ncommunications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information\nand to otherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this\nAgreement are reasonable.\n(e) Upon the termination of Executive’s employment by either party, Executive will execute a binding General Release and Waiver of\nclaims in a form to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in\n4-\na form substantially similar to the attached sample. If the General Release and Waiver is not signed or is signed but subsequently revoked,\nExecutive will not receive Severance Pay (if any) or any other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches or threatens\nto breach this Agreement, Executive consents to injunctive relief in favor of Sears without the necessity of Sears posting bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which may have resulted from a\nbreach of this Agreement, including a forfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears\nor Executive in any instance shall not be deemed a waiver of such provision in the future,\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 6(b),\nabove, commence during Executive’s continued employment with Sears, by written request to the Chief Executive Officer of Sears or the\nequivalent. Such a request will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears’ absolute discretion.\n7. Except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 6(e) and (f) and 10, such compensation and benefits\nshall not be reduced whether or not Executive obtains other employment (it being agreed, however, that Executive shall be obligated to seek\nother employment).\n8. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period\nof active employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved other than any\nsuch investigations, potential litigation or litigation between Sears and Executive. Sears will reimburse Executive for reasonable travel and out-\nof-pocket expenses incurred in connection with any such investigations, potential litigation or litigation.\n9. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n10. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement\nprovision (Section 3 herein), and the non-competition provisions (Section 6 herein) of this Agreement, Sears obligation to make salary\ncontinuation or any other payments under this Agreement will immediately cease.\n11. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be\nmodified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be\n-5-\ndeemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent\npermitted by law, as if such provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not\nbeen originally incorporated herein, as the case may be.\n12. This Agreement will be governed under the internal laws of the state of Illinois without regard to principles of conflicts of laws. Executive\nagrees that the state and federal courts located in the state of Illinois shall have exclusive jurisdiction in any action, Suit or proceeding based on\nor arising out of this Agreement, and Executive hereby: (a) submits to the personal jurisdiction of such courts; (b) consents to the service of\nprocess in connection with any action, suit, or proceeding against Executive; and (c) waives any other requirement (whether imposed by statute,\nrule of court, or otherwise) with respect to personal jurisdiction, venue or service of process.\n13. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is\nillegal or unenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory\njury. Further, should any claim arising out of Executive’s employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury\nor advisory jury.\n14. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive’s employment with Sears is\nterminable “at-will” by either party with or without cause and with or without notice.\n15. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions\nof this Agreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance\nplan or program. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained\nherein (with the exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated , 200 _) and may\nbe amended only by a writing signed by an authorized officer of Sears.\n16. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n17. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or\notherwise. This Agreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears or affiliate\nthereof and Executive.\n18. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOQOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date\nset forth below.\nSEARS HOLDINGS CORPORATION\nBY:\nEXECUTIVE\nDate Date\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER\nSIGNING. ANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL\nCOUNSEL, SEARS HOLDINGS CORPORATION, 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO\nCONSULT WITH AN ATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting\nby, through, or under me hereby release, waive, and forever discharge Sears Holdings Corporation, its current and former agents, subsidiaries,\naffiliates, employees, officers, shareholders, successors, and assigns (“Sears”) from any and all liability, actions, charges, causes of action,\ndemands, damages, or claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or\nconnected with, my employment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in\ncontract (oral or written, express or implied), or in tort, or pursuant to statute, including any claim for age or other typos of discrimination under\nthe Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state,\nor local law or ordinance, to the fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General\nRelease and Waiver does not apply to any claims or rights that may arise after the date that I signed this General Release and Waiver. I\nunderstand that Sears is not admitting to any violation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file\na charge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under\nbenefit plans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family\nand Medical Leave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent\nand warrant that I have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim\nunder the ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under\nADEA, I shall be liable to Sears for its reasonable attorney’s fees and other litigation costs and expenses incurred in defending against such a\nsuit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General\nRelease and Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by\nnotifying the General Counsel of Sears in writing at Sears Holdings Corporation, 3333 Beverly Road, Hoffman Estates, Illinois 60179. 1\nunderstand that this General Release and Waiver will not be effective until after this seven (7) day revocation period has expired.\nDate: SAMPLE ONLY — DO NOT SIGN Signed by: SAMPLE ONLY — DO NOT SIGN\nWitness by:\nExecutive: Date: , 2005\nAppendix A\nto Executive Severance/Non-Compete Agreement\nIn addition to all companies otherwise meeting the definition of “Sears Competitor” in Section 6(b)(ii)(2) of the Executive Severance/Non-\nCompete Agreement to which this Appendix A is attached, the following companies are “Sears Competitors” for purposes of that Section 6(b)(i):\nRetail Home/Product Services\nDepartment Stores Ace Hardware Corporation\nDillard’s, Inc. TruServe Corporation\nFederated Department Stores, Inc. Lowe’s Companies, Inc.\nJ. C. Penney Company, Inc. Menard, Inc.\nKohls’ Corporation The Home Depot, Inc.\nThe May Department Stores Company\nMervyn’s\nSaks Incorporated\nDiscount Stores Other\nKohl’s Corporation Maytag Corporation\nTarget Corporation Whirlpool Corporation\nWal-Mart Stores, Inc. The ServiceMaster Company\nSpecialty Stores\nAutoZone, Inc.\nBed Bath & Beyond Inc.\nBest Buy Co., Inc.\nCarMax, Inc.\nCircuit City Stores, Inc.\nCompUSA Inc. (eliminate hyphen)\nFinlay Enterprises, Inc. (Jewelry)\nGap Inc.\nLimited Brands, Inc.\nLinens ‘n Things, Inc.\nOffice Depot, Inc.\nThe Pep Boys — Manny, Moe & Jack\nPier 1 Imports, Inc.\nTandy Brands Accessories, Inc.\nZale Corporation	EX-10.6 3 c00537exv10w6.htm REVISED FORM OF EXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nExhibit 10.6\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of\n2005 (the "Agreement"), Sears Holdings Corporation and its\ncontrolled affiliates and subsidiaries ("Sears"), and\n("Executive"), intending to be legally bound and for good and\nvaluable consideration, agree as follows:\n1. Severance Benefits.\n(a) Continuation of Compensation. In the event that (x) Executive's employment is terminated by each Sears entity by which she is\nemployed (the "Company") for any reason other than Cause (as defined below), death or Disability (as defined below) or (y) Executive's\nemployment is terminated by Executive for Good Reason (as defined below), subject to the provisions of Sections 6(e) and (f) and 10 herein,\nthe\nCompany shal pay to Executive his annual base salary as in effect immediately prior to the date of termination for a period of one (1) year;\nprovided that, in any event, Sears' obligations under this clause 1 shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent\nthat Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the Salary\nContinuation Period (as defined below). The amount described in Section 1(a) shall be paid on each regular payroll period following the date\nof\ntermination (the "Salary Continuation Period") provided that if at the time that the executive terminates employment the executive is a "key\nemployee" or "specified employee" within the meaning of Code Section 409A and regulations issued thereunder, then, if necessary to comply\nwith Section 409A, payment to the executive shall not commence until six months after the executive's termination of employment In addition\nto\nthe\nforegoing,\na\nlump sum payment will be made to Executive within ten (10) days following the date of termination in an amount equal to\nthe\nsum of any accrued base salary through the date of termination to the extent not theretofore paid and any vacation benefits that accrued prior to\nthe date of termination. No vacation will accrue after the date active employment ends. All salary continuation payments and benefits will\nterminate and forever lapse if Executive is employed by a "Sears Competitor" as defined in Section 6(b) herein.\n(b) Continuation of Benefits. During the Salary Continuation Period, Executive will be entitled to all benefits (other than as specified\nabove)\nfor which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability and\nFlexible Spending Accounts. Executive and eligible dependents shall be entitled to continue to participate in the Company's medical and dental\nplans in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). The cost of such COBRA coverage for\nExecutive and his dependents will be subsidized by the Company, so that Executive will be paying the same premium for medical and dental\nplan coverage during the Salary Continuation Period as an active employee. However, in the event Executive becomes employed by another\nemployer and is covered by such employer's health benefits plan or program, the medical and dental benefits provided by the Company\nhereunder shall be secondary to such employer's health benefits plan or program in accordance with the terms of the Company's health benefit\nplans.\n(c) Long-Term Performance Program. The Long Term Performance Incentive Program grant for any multi-year performance period will be\ntreated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(d) Qutplacement. From the date of termination pursuant to the first sentence of Section 1(a), Executive will be immediately eligible for\noutplacement services at the Company's expense. The Company and Executive will mutually agree on which outplacement firm, among current\nvendors used by the Company, will provide these services. Such services will be provided for up to one (1) year from the beginning of the Salary\nContinuation Period or until employment is obtained, whichever occurs first.\n2. Definitions. For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(a) "Cause" shall mean (1) a material breach by Executive (other than a breach resulting from Executive's incapacity due to a mental or\nphysical disability) of Executive's duties and responsibilities which breach is demonstrably willful and deliberate on Executive's part,\nis\ncommitted in bad faith or without reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of\ntime after receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving moral turpitude, or\n(3) dishonesty or willful misconduct in connection with Executive's employment; and\n(b) "Disability." shall mean disability as defined under the long-term disability plan of Sears applicable to Executive.\n(c) "Good Reason" shall mean, without Executive's written consent, (i) a reduction of more than 10% in the sum of Executive's annual\nbase salary and target bonus from those in effect as of the date of this Agreement, (ii) a change in reporting relationship such that Executive\nreports to anyone other than the Chief Executive Officer, the Chairman of the Board, the Board of directors, (iii) a reduction in title or a material\ndiminution in duties, (iv) Executive's mandatory relocation to an office more than 50 miles from the primary location at which Executive is\nrequired to perform Executive's duties immediately prior to the date of this Agreement or (v) failure of a successor company to assume or fulfill\nthe obligations under this Agreement.\n3.\nNon-Disparagement.\nExecutive\nwill\nnot\ntake\nany\nactions\ndetrimental\nto\nthe\ninterests\nof\nSears,\nnor\nmake\nderogatory\nstatements,\neither\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or\ndirectors, and will not authorize others to make derogatory or disparaging statements on Executive's behalf.\n4. Intellectual Property Rights. Executive acknowledges that Executive's development, work or research on any and all inventions or\nexpressions of ideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such\ninvention or expression of an idea relates to the business of Sears, or relates to\n-2-\nSears actual or demonstrably anticipated research or development, or results from any work performed by Executive for or on behalf of Sears,\nare hereby assigned to Sears, including Executive's entire rights, title and interest. Executive will promptly disclose such invention or expression\nof an idea to Executive's management and will, upon request, promptly execute a specific written assignment of title to Sears. If Executive\ncurrently holds any inventions or expressions of an idea, regardless of whether they were published or filed with the U.S. Patent and Trademark\nOffice, or is under contract to not so assign, Executive will list them on the last page of this Agreement.\n5. Confidentiality.. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and\ndiscussions with Sears regarding this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner\nexcept: (a) as required by law or legal process; (b) to Executive's spouse, domestic partner, or financial/legal advisors, all of whom shall agree to\nkeep such information confidential.\n6. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a)\nNon-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b)\nNon-Competition. Executive acknowledges that as a result of Executive's position at Sears, Executive has learned or developed, or\nwill learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\ni.\nTherefore, for one (1) year from Executive's last day of active employment, whether or not Executive receives severance\nbenefits pursuant to Section 1 hereto ("Severance Pay"), Executive will not, directly or indirectly, aid, assist, participate\nin,\nconsult with, render services for, accept a position with, become employed by, or otherwise enter into any relationship with\n(other than having a passive ownership interest in or being a customer of) any Sears Competitor.\nii.\nFor purposes of this Agreement, "Sears Competitor" means\n1. Those companies listed on Appendix A, each of which Executive acknowledges is a Sears Competitor, whether or\n-3-\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 6(b)(ii)(2), below, and\n2.\nAny party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair and/or home services,\nwith combined annual revenue in excess of $500 million, (B) any vendor with combined annual gross sales of services\nor merchandise to Sears in excess of $100 million, or (C) a party engaged in any other line of business, in which Sears\nhas commenced business prior to the end of Executive's active employment, with Sears having annual gross sales in\nthat line of business in excess of $50 million.\niii.\nExecutive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to include\n(1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are new for Sears\nwith the prior written consent of Executive, which shall not be unreasonably withheld.\niv. Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada and that this\nnon-compete provision applies in any state of the United States, Puerto Rico or province of Canada in which Sears does\nbusiness.\n(c) Executive will provide Sears with such information as Sears may from time to time reasonably request to determine Executive's\ncompliance with this Agreement. Executive authorizes Sears to contact Executive's future employers and other entities with which Executive has\nany\nbusiness\nrelationship to determine Executive's compliance with this Agreement or to communicate the contents of this Agreement to such\nemployers and entities. Executive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or\ncommunications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information\nand to otherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this\nAgreement are reasonable.\n(e) Upon the termination of Executive's employment by either party, Executive will execute a binding General Release and Waiver of\nclaims in a form to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in\n-4-\na form substantially similar to the attached sample. If the General Release and Waiver is not signed or is signed but subsequently revoked,\nExecutive will not receive Severance Pay (if any) or any other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches or threatens\nto\nbreach this Agreement, Executive consents to injunctive relief in favor of Sears without the necessity of Sears posting bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which may have resulted from\na\nbreach of this Agreement, including a forfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears\nor Executive in any instance shall not be deemed a waiver of such provision in the future,\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 6(b),\nabove, commence during Executive's continued employment with Sears, by written request to the Chief Executive Officer of Sears or the\nequivalent. Such a request will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears' absolute discretion.\n7. Except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 6(e) and (f) and 10, such compensation and benefits\nshall not be reduced whether or not Executive obtains other employment (it being agreed, however, that Executive shall be obligated to seek\nother employment).\n8. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period\nof active employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved other than any\nsuch investigations, potential litigation or litigation between Sears and Executive. Sears will reimburse Executive for reasonable travel and out-\nof-pocket expenses incurred in connection with any such investigations, potential litigation or litigation.\n9.\nExecutive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily\nact\nas\na\nwitness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n10. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement\nprovision (Section 3 herein), and the non-competition provisions (Section 6 herein) of this Agreement, Sears obligation to make salary\ncontinuation or any other payments under this Agreement will immediately cease.\n11. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be\nmodified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be\n-5-\ndeemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent\npermitted by law, as if such provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not\nbeen originally incorporated herein, as the case may be.\n12. This Agreement will be governed under the internal laws of the state of Illinois without regard to principles of conflicts of laws. Executive\nagrees\nthat\nthe state and federal courts located in the state of Illinois shall have exclusive jurisdiction in any action, Suit or proceeding based on\nor arising out of this Agreement, and Executive hereby: (a) submits to the personal jurisdiction of such courts; (b) consents to the service of\nprocess in connection with any action, suit, or proceeding against Executive; and (c) waives any other requirement (whether imposed by statute,\nrule of court, or otherwise) with respect to personal jurisdiction, venue or service of process.\n13. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is\nillegal or unenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory\njury. Further, should any claim arising out of Executive's employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury\nor advisory jury.\n14. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive's employment with Sears is\nterminable "at-will" by either party with or without cause and with or without notice.\n15. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions\nof this Agreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance\nplan or program. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained\nherein (with the exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated\n200 and may\nbe amended only by a writing signed by an authorized officer of Sears.\n16. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n17. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation sale of assets, or\notherwise. This Agreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears or affiliate\nthereof and Executive.\n18. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date\nset forth below.\nSEARS HOLDINGS CORPORATION\nBY:\nEXECUTIVE\nDate\nDate\n-6-\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER\nSIGNING. ANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL\nCOUNSEL, SEARS HOLDINGS CORPORATION, 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO\nCONSULT WITH AN ATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting\nby, through, or under me hereby release, waive, and forever discharge Sears Holdings Corporation, its current and former agents, subsidiaries,\naffiliates, employees, officers, shareholders, successors, and assigns ("Sears") from any and all liability, actions, charges, causes of action,\ndemands, damages, or claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or\nconnected with, my employment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in\ncontract (oral or written, express or implied), or in tort, or pursuant to statute, including any claim for age or other typos of discrimination under\nthe Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state,\nor local law or ordinance, to the fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General\nRelease and Waiver does not apply to any claims or rights that may arise after the date that I signed this General Release and Waiver. I\nunderstand that Sears is not admitting to any violation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file\na\ncharge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under\nbenefit plans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family\nand Medical Leave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent\nand warrant that I have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim\nunder the ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under\nADEA, I shall be liable to Sears for its reasonable attorney's fees and other litigation costs and expenses incurred in defending against such a\nsuit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General\nRelease and Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by\nnotifying the General Counsel of Sears in writing at Sears Holdings Corporation, 3333 Beverly Road, Hoffman Estates, Illinois 60179. I\nunderstand that this General Release and Waiver will not be effective until after this seven (7) day revocation period has expired.\nDate: SAMPLE ONLY DO NOT SIGN\nSigned by:\nSAMPLE ONLY DO NOT SIGN\nWitness by:\n-7-\nExecutive:\nDate:\n, 2005\nAppendix A\nto Executive Severance/Non-Compete Agreement\nIn addition to all companies otherwise meeting the definition of "Sears Competitor" in Section 6(b)(ii)(2) of the Executive Severance/Non-\nCompete Agreement to which this Appendix A is attached, the following companies are "Sears Competitors" for purposes of that Section 6(b)(i):\nRetail\nHome/Product Services\nDepartment Stores\nAce Hardware Corporation\nDillard's, Inc.\nTruServe Corporation\nFederated Department Stores, Inc.\nLowe's Companies, Inc.\nJ. C. Penney Company, Inc.\nMenard, Inc.\nKohls' Corporation\nThe Home Depot, Inc.\nThe May Department Stores Company\nMervyn's\nSaks Incorporated\nDiscount Stores\nOther\nKohl's Corporation\nMaytag Corporation\nTarget Corporation\nWhirlpool Corporation\nWal-Mart Stores, Inc.\nThe ServiceMaster Company\nSpecialty Stores\nAutoZone, Inc.\nBed Bath & Beyond Inc.\nBest Buy Co., Inc.\nCarMax, Inc.\nCircuit City Stores, Inc.\nCompUSA Inc. (eliminate hyphen)\nFinlay Enterprises, Inc. (Jewelry)\nGap Inc.\nLimited Brands, Inc.\nLinens 'n Things, Inc.\nOffice Depot, Inc.\nThe Pep Boys - Manny, Moe & Jack\nPier 1 Imports, Inc.\nTandy Brands Accessories, Inc.\nZale Corporation\n-8-	EX-10.6 3 c00537exv10w6.htm REVISED FORM OF EXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nExhibit 10.6\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of\n, 2005 (the “Agreement”), Sears Holdings Corporation and its\ncontrolled affiliates and subsidiaries (“Sears”), and\n(“Executive”), intending to be legally bound and for good and\nvaluable consideration, agree as follows:\n1. Severance Benefits.\n(a) Continuation of Compensation. In the event that (x) Executive’s employment is terminated by each Sears entity by which she is\nemployed (the “Company”) for any reason other than Cause (as defined below), death or Disability (as defined below) or (y) Executive’s\nemployment is terminated by Executive for Good Reason (as defined below), subject to the provisions of Sections 6(e) and (f) and 10 herein, the\nCompany shall pay to Executive his annual base salary as in effect immediately prior to the date of termination for a period of one (1) year;\nprovided that, in any event, Sears’ obligations under this clause 1 shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent\nthat Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the Salary\nContinuation Period (as defined below). The amount described in Section 1(a) shall be paid on each regular payroll period following the date of\ntermination (the “Salary Continuation Period”) provided that if at the time that the executive terminates employment the executive is a “key\nemployee” or “specified employee” within the meaning of Code Section 409A and regulations issued thereunder, then, if necessary to comply\nwith Section 409A, payment to the executive shall not commence until six months after the executive’s termination of employment In addition to\nthe foregoing, a lump sum payment will be made to Executive within ten (10) days following the date of termination in an amount equal to the\nsum of any accrued base salary through the date of termination to the extent not theretofore paid and any vacation benefits that accrued prior to\nthe date of termination. No vacation will accrue after the date active employment ends. All salary continuation payments and benefits will\nterminate and forever lapse if Executive is employed by a “Sears Competitor” as defined in Section 6(b) herein.\n(b) Continuation of Benefits. During the Salary Continuation Period, Executive will be entitled to all benefits (other than as specified\nabove) for which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability and\nFlexible Spending Accounts. Executive and eligible dependents shall be entitled to continue to participate in the Company’s medical and dental\nplans in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). The cost of such COBRA coverage for\nExecutive and his dependents will be subsidized by the Company, so that Executive will be paying the same premium for medical and dental\nplan coverage during the Salary Continuation Period as an active employee. However, in the event Executive becomes employed by another\nemployer and is covered by such employer’s health benefits plan or program, the medical and dental benefits provided by the Company\nhereunder shall be secondary to such employer’s health benefits plan or program in accordance with the terms of the Company’s health benefit\nplans.\n(c) Long-Term Performance Program. The Long Term Performance Incentive Program grant for any multi-year performance period will be\ntreated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(d) Outplacement. From the date of termination pursuant to the first sentence of Section 1(a), Executive will be immediately eligible for\noutplacement services at the Company’s expense. The Company and Executive will mutually agree on which outplacement firm, among current\nvendors used by the Company, will provide these services. Such services will be provided for up to one (1) year from the beginning of the Salary\nContinuation Period or until employment is obtained, whichever occurs first.\n2. Definitions. For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(a) “Cause” shall mean (1) a material breach by Executive (other than a breach resulting from Executive’s incapacity due to a mental or\nphysical disability) of Executive’s duties and responsibilities which breach is demonstrably willful and deliberate on Executive’s part, is\ncommitted in bad faith or without reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of\ntime after receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving moral turpitude, or\n(3) dishonesty or willful misconduct in connection with Executive’s employment; and\n(b) “Disability” shall mean disability as defined under the long-term disability plan of Sears applicable to Executive.\n(c) “Good Reason” shall mean, without Executive’s written consent, (i) a reduction of more than 10% in the sum of Executive’s annual\nbase salary and target bonus from those in effect as of the date of this Agreement, (ii) a change in reporting relationship such that Executive\nreports to anyone other than the Chief Executive Officer, the Chairman of the Board, the Board of directors, (iii) a reduction in title or a material\ndiminution in duties, (iv) Executive’s mandatory relocation to an office more than 50 miles from the primary location at which Executive is\nrequired to perform Executive’s duties immediately prior to the date of this Agreement or (v) failure of a successor company to assume or fulfill\nthe obligations under this Agreement.\n3. Non-Disparagement. Executive will not take any actions detrimental to the interests of Sears, nor make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or\ndirectors, and will not authorize others to make derogatory or disparaging statements on Executive’s behalf.\n4. Intellectual Property Rights. Executive acknowledges that Executive’s development, work or research on any and all inventions or\nexpressions of ideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such\ninvention or expression of an idea relates to the business of Sears, or relates to\n-2-\nSears actual or demonstrably anticipated research or development, or results from any work performed by Executive for or on behalf of Sears,\nare hereby assigned to Sears, including Executive’s entire rights, title and interest. Executive will promptly disclose such invention or expression\nof an idea to Executive’s management and will, upon request, promptly execute a specific written assignment of title to Sears. If Executive\ncurrently holds any inventions or expressions of an idea, regardless of whether they were published or filed with the U.S. Patent and Trademark\nOffice, or is under contract to not so assign, Executive will list them on the last page of this Agreement.\n5. Confidentiality. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and\ndiscussions with Sears regarding this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner\nexcept: (a) as required by law or legal process; (b) to Executive’s spouse, domestic partner, or financial/legal advisors, all of whom shall agree to\nkeep such information confidential.\n6. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive’s position at Sears, Executive has learned or developed, or\nwill learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\ni. Therefore, for one (1) year from Executive’s last day of active employment, whether or not Executive receives severance\nbenefits pursuant to Section 1 hereto (“Severance Pay”), Executive will not, directly or indirectly, aid, assist, participate in,\nconsult with, render services for, accept a position with, become employed by, or otherwise enter into any relationship with\n(other than having a passive ownership interest in or being a customer of) any Sears Competitor.\nii. For purposes of this Agreement, “Sears Competitor” means\n1. Those companies listed on Appendix A, each of which Executive acknowledges is a Sears Competitor, whether or\n-3-\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 6(b)(ii)(2), below, and\n2. Any party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair and/or home services,\nwith combined annual revenue in excess of $500 million, (B) any vendor with combined annual gross sales of services\nor merchandise to Sears in excess of $100 million, or (C) a party engaged in any other line of business, in which Sears\nhas commenced business prior to the end of Executive’s active employment, with Sears having annual gross sales in\nthat line of business in excess of $50 million.\niii. Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to include\n(1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are new for Sears\nwith the prior written consent of Executive, which shall not be unreasonably withheld.\niv. Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada and that this\nnon-compete provision applies in any state of the United States, Puerto Rico or province of Canada in which Sears does\nbusiness.\n(c) Executive will provide Sears with such information as Sears may from time to time reasonably request to determine Executive’s\ncompliance with this Agreement. Executive authorizes Sears to contact Executive’s future employers and other entities with which Executive has\nany business relationship to determine Executive’s compliance with this Agreement or to communicate the contents of this Agreement to such\nemployers and entities. Executive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or\ncommunications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information\nand to otherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this\nAgreement are reasonable.\n(e) Upon the termination of Executive’s employment by either party, Executive will execute a binding General Release and Waiver of\nclaims in a form to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in\n-4-\na form substantially similar to the attached sample. If the General Release and Waiver is not signed or is signed but subsequently revoked,\nExecutive will not receive Severance Pay (if any) or any other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches or threatens\nto breach this Agreement, Executive consents to injunctive relief in favor of Sears without the necessity of Sears posting bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which may have resulted from a\nbreach of this Agreement, including a forfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears\nor Executive in any instance shall not be deemed a waiver of such provision in the future,\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 6(b),\nabove, commence during Executive’s continued employment with Sears, by written request to the Chief Executive Officer of Sears or the\nequivalent. Such a request will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears’ absolute discretion.\n7. Except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 6(e) and (f) and 10, such compensation and benefits\nshall not be reduced whether or not Executive obtains other employment (it being agreed, however, that Executive shall be obligated to seek\nother employment).\n8. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period\nof active employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved other than any\nsuch investigations, potential litigation or litigation between Sears and Executive. Sears will reimburse Executive for reasonable travel and out-\nof-pocket expenses incurred in connection with any such investigations, potential litigation or litigation.\n9. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n10. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement\nprovision (Section 3 herein), and the non-competition provisions (Section 6 herein) of this Agreement, Sears obligation to make salary\ncontinuation or any other payments under this Agreement will immediately cease.\n11. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be\nmodified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be\n-5-\ndeemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent\npermitted by law, as if such provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not\nbeen originally incorporated herein, as the case may be.\n12. This Agreement will be governed under the internal laws of the state of Illinois without regard to principles of conflicts of laws. Executive\nagrees that the state and federal courts located in the state of Illinois shall have exclusive jurisdiction in any action, Suit or proceeding based on\nor arising out of this Agreement, and Executive hereby: (a) submits to the personal jurisdiction of such courts; (b) consents to the service of\nprocess in connection with any action, suit, or proceeding against Executive; and (c) waives any other requirement (whether imposed by statute,\nrule of court, or otherwise) with respect to personal jurisdiction, venue or service of process.\n13. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is\nillegal or unenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory\njury. Further, should any claim arising out of Executive’s employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury\nor advisory jury.\n14. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive’s employment with Sears is\nterminable “at-will” by either party with or without cause and with or without notice.\n15. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions\nof this Agreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance\nplan or program. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained\nherein (with the exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated\n,200 _)andmay\nbe amended only by a writing signed by an authorized officer of Sears.\n16. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n17. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or\notherwise. This Agreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears or affiliate\nthereof and Executive.\n18. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date\nset forth below.\nSEARS HOLDINGS CORPORATION\nBY:\nEXECUTIVE\nDate\nDate\n-6-\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER\nSIGNING. ANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL\nCOUNSEL, SEARS HOLDINGS CORPORATION, 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO\nCONSULT WITH AN ATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting\nby, through, or under me hereby release, waive, and forever discharge Sears Holdings Corporation, its current and former agents, subsidiaries,\naffiliates, employees, officers, shareholders, successors, and assigns (“Sears”) from any and all liability, actions, charges, causes of action,\ndemands, damages, or claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or\nconnected with, my employment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in\ncontract (oral or written, express or implied), or in tort, or pursuant to statute, including any claim for age or other typos of discrimination under\nthe Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state,\nor local law or ordinance, to the fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General\nRelease and Waiver does not apply to any claims or rights that may arise after the date that I signed this General Release and Waiver. I\nunderstand that Sears is not admitting to any violation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file\na charge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under\nbenefit plans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family\nand Medical Leave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent\nand warrant that I have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim\nunder the ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under\nADEA, I shall be liable to Sears for its reasonable attorney’s fees and other litigation costs and expenses incurred in defending against such a\nsuit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General\nRelease and Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by\nnotifying the General Counsel of Sears in writing at Sears Holdings Corporation, 3333 Beverly Road, Hoffman Estates, Illinois 60179. I\nunderstand that this General Release and Waiver will not be effective until after this seven (7) day revocation period has expired.\nDate: SAMPLE ONLY — DO NOT SIGN\nSigned by: SAMPLE ONLY — DO NOT SIGN\nWitness by:\n-7-\nExecutive:\nDate:\n, 2005\nAppendix A\nto Executive Severance/Non-Compete Agreement\nIn addition to all companies otherwise meeting the definition of “Sears Competitor” in Section 6(b)(ii)(2) of the Executive Severance/Non-\nCompete Agreement to which this Appendix A is attached, the following companies are “Sears Competitors” for purposes of that Section 6(b)(i):\nRetail\nHome/Product Services\nDepartment Stores\nAce Hardware Corporation\nDillard’s, Inc.\nTruServe Corporation\nFederated Department Stores, Inc.\nLowe’s Companies, Inc.\nJ. C. Penney Company, Inc.\nMenard, Inc.\nKohls’ Corporation\nThe Home Depot, Inc.\nThe May Department Stores Company\nMervyn’s\nSaks Incorporated\nDiscount Stores\nOther\nKohl’s Corporation\nMaytag Corporation\nTarget Corporation\nWhirlpool Corporation\nWal-Mart Stores, Inc.\nThe ServiceMaster Company\nSpecialty Stores\nAutoZone, Inc.\nBed Bath & Beyond Inc.\nBest Buy Co., Inc.\nCarMax, Inc.\nCircuit City Stores, Inc.\nCompUSA Inc. (eliminate hyphen)\nFinlay Enterprises, Inc. (Jewelry)\nGap Inc.\nLimited Brands, Inc.\nLinens ‘n Things, Inc.\nOffice Depot, Inc.\nThe Pep Boys – Manny, Moe & Jack\nPier 1 Imports, Inc.\nTandy Brands Accessories, Inc.\nZale Corporation\n-8-
76e22bbecfc356222b824027786adedc.pdf	effective_date jurisdiction party term	EX-99.(D)(7) 15 d701401dex99d7.htm AMENDMENT TO NON-DISCLOSURE AGREEMENT\nExhibit (d)(7)\nEXECUTION VERSION\nLOGO\nApril 6, 2014\nPRIVATE AND CONFIDENTIAL\nVocus, Inc.\n12051 Indian Creek Court\nBeltsville, MD 20705\nRe: Amendment to Non-Disclosure Agreement\nGentlemen:\nReference is made to that certain Non-Disclosure Agreement, dated December 20, 2013 (the “Non-Disclosure Agreement”), by and\nbetween Vocus, Inc. (the Company”) and GTCR LLC (“GTCR”), a copy of which is attached hereto as Exhibit A. Capitalized terms used but not\ndefined herein shall have the meanings given to such terms in the Non-Disclosure Agreement.\nGTCR and the Company hereby agree to amend and restate in its entirety the final sentence of Section 3 of the Non-Disclosure Agreement\nas follows:\n“Without limiting the generality of the foregoing and for purposes of clarification, except (a) with the prior written consent of Vocus or\n(b) for Jefferies Finance LLC, you agree that you shall not enter into any exclusivity agreement or arrangement with respect to a\nTransaction with any bank or other debt financing source. Notwithstanding anything in this Agreement to the contrary, you and your\nRepresentatives shall be permitted at any time prior to the termination of that certain Agreement and Plan of Merger, dated as of April 6,\n2014, by and among GTCR Valor Companies, Inc., a Delaware corporation, GTCR Valor Merger Sub, Inc., a Delaware corporation and\nwholly owned Subsidiary of Parent, and Vocus (the “Merger Agreement”) pursuant to Article X thereof (the “Termination Date”) to\ndisclose Evaluation Material, hold confidential discussions and negotiations, and disclose Transaction Information (only to the extent\nrelevant to such discussions and negotiations), with those persons identified on Annex I to this Agreement (each an “Initial Permitted\nDisclosure Party”) and, with the prior written consent of Vocus, the giving or withholding of which consent shall be in the sole discretion of\nVocus, any other person (each an “Additional Permitted Disclosure Party” and, together with each Initial Permitted Disclosure Party, a\n“Permitted Disclosure Party”) and, in each case, their respective Representatives regarding any equity or co-investment participation by\nsuch person with you in the Transaction or any transaction to acquire a portion of the equity or assets of Vocus or its subsidiaries; provided,\nthat consent of Vocus shall not be unreasonably withheld or delayed in the case of the first three (3) Additional Permitted Disclosure\nParties; provided, further, that each Permitted Disclosure Party is bound by a confidentiality agreement with you restricting the disclosure\nand use by such Permitted Disclosure Party and its Representatives of the fact and content of such discussions and negotiations, the\nEvaluation Material and the\nLOGO\nTransaction Information, containing terms (excluding standstill provisions) not less restrictive in the aggregate upon such persons than the\nterms applicable to you in this Agreement and providing that Vocus is an express third party beneficiary of such confidentiality agreement\n(each such agreement, an “Acceptable Confidentiality Agreement”) and, provided, further, that you shall not make any Evaluation Material\navailable to such persons or their respective Representatives until the commencement of the Marketing Period (as defined in the Merger\nAgreement). You shall provide to Vocus a complete copy of any Acceptable Confidentiality Agreement with any Permitted Disclosure\nParty promptly (and in any event within twenty-four (24) hours) following entry into any such agreement, including any amendments or\nsupplements thereof.”\nGTCR and the Company hereby agree to amend and restate in its entirety the first sentence of Section 5 of the Non-Disclosure Agreement\nas follows:\n“At any time after the Termination Date, upon the request of the Company for any reason, you shall (and will direct your Representatives\nto) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all\nEvaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media)\nfurnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your\nRepresentatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance\nwith document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that\nappropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may\nbe, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further,\nhowever, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to\ndocument your consideration of a Transaction for the purpose of establishing compliance with any applicable laws or regulations and for\ndefending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation\nMaterial; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to\nwhich access is not made generally available.”\nGTCR and the Company hereby agree to amend and restate in its entirety Section 10 of the Non-Disclosure Agreement as follows:\n“10. [Reserved.]”\nGTCR and the Company hereby agree to amend the Non-Disclosure Agreement by attaching thereto as Annex I the Annex I attached to\nthis amendment to the Non-Disclosure Agreement.\nLOGO\nExcept as specifically set forth above, the Non-Disclosure Agreement shall remain in full force and effect and is hereby ratified and\nconfirmed.\nThis amendment to the Non-Disclosure Agreement shall be governed by, and construed in accordance with, the internal procedural and\nsubstantive laws of the State of Delaware, without reference to the conflict of law principles of that state.\nThe parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of\nDelaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this\namendment to the Non-Disclosure Agreement and the transactions contemplated hereby, and further agree that service of any process, summons,\nnotice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any\naction, suit or proceeding brought against it in any such court. The parties to this amendment to the Non-Disclosure Agreement hereby\nirrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the\ntransactions contemplated hereby, in the state courts of the State of Delaware or of the United State District Court for the District of Delaware,\nand hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n[Remainder of page intentionally left blank.]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to this amendment to the Non-Disclosure\nAgreement, whereupon this amendment to the Non-Disclosure Agreement shall become a binding agreement.\nVery Truly Yours,\nGTCR LLC\nBy: /s/ Mark M. Anderson\nName: Mark M. Anderson\nTitle: Manager\n[Signature Page to Amendment to Non-Disclosure Agreement]\nAGREED AND ACCEPTED\nas of the 6th day of April, 2014:\nVOCUS, INC.\nBy: /s/ Richard Rudman\nName: Richard Rudman\nTitle: Chief Executive Officer and President\n[Signature Page to Amendment to Non-Disclosure Agreement]	EX-99.(D)(7) 15 d701401dex99d7.htm AMENDMENT TO NON-DISCLOSURE AGREEMENT\nExhibit (d)(7)\nEXECUTION VERSION\n. LOGO\nApril 6, 2014\nPRIVATE AND CONFIDENTIAL\nVocus, Inc.\n12051 Indian Creek Court\nBeltsville, MD 20705\nRe: Amendment to Non-Disclosure Agreement\nGentlemen:\nReference is made to that certain Non-Disclosure Agreement, dated December 20, 2013 (the “Non-Disclosure Agreement”), by and\nbetween Vocus, Inc. (the Company”) and GTCR LLC (“GTCR”), a copy of which is attached hereto as Exhibit A. Capitalized terms used but not\ndefined herein shall have the meanings given to such terms in the Non-Disclosure Agreement.\n \nGTCR and the Company hereby agree to amend and restate in its entirety the final sentence of Section 3 of the Non-Disclosure Agreement\nas follows:\n“Without limiting the generality of the foregoing and for purposes of clarification, except (a) with the prior written consent of Vocus or\n(b) for Jefferies Finance LL.C, you agree that you shall not enter into any exclusivity agreement or arrangement with respect to a\nTransaction with any bank or other debt financing source. Notwithstanding anything in this Agreement to the contrary, you and your\nRepresentatives shall be permitted at any time prior to the termination of that certain Agreement and Plan of Merger, dated as of April 6,\n2014, by and among GTCR Valor Companies, Inc., a Delaware corporation, GTCR Valor Merger Sub, Inc., a Delaware corporation and\nwholly owned Subsidiary of Parent, and Vocus (the “Merger Agreement”) pursuant to Article X thereof (the “Termination Date”) to\ndisclose Evaluation Material, hold confidential discussions and negotiations, and disclose Transaction Information (only to the extent\nrelevant to such discussions and negotiations), with those persons identified on Annex I to this Agreement (each an “Initial Permitted\nDisclosure Party”) and, with the prior written consent of Vocus, the giving or withholding of which consent shall be in the sole discretion of\nVocus, any other person (each an “Additional Permitted Disclosure Party” and, together with each Initial Permitted Disclosure Party, a\n“Permitted Disclosure Party”) and, in each case, their respective Representatives regarding any equity or co-investment participation by\nsuch person with you in the Transaction or any transaction to acquire a portion of the equity or assets of Vocus or its subsidiaries; provided,\nthat consent of Vocus shall not be unreasonably withheld or delayed in the case of the first three (3) Additional Permitted Disclosure\nParties; provided, further, that each Permitted Disclosure Party is bound by a confidentiality agreement with you restricting the disclosure\nand use by such Permitted Disclosure Party and its Representatives of the fact and content of such discussions and negotiations, the\nEvaluation Material and the\n \n».LOGO\nTransaction Information, containing terms (excluding standstill provisions) not less restrictive in the aggregate upon such persons than the\nterms applicable to you in this Agreement and providing that Vocus is an express third party beneficiary of such confidentiality agreement\n(each such agreement, an “Acceptable Confidentiality Agreement”) and, provided, further, that you shall not make any Evaluation Material\navailable to such persons or their respective Representatives until the commencement of the Marketing Period (as defined in the Merger\nAgreement). You shall provide to Vocus a complete copy of any Acceptable Confidentiality Agreement with any Permitted Disclosure\nParty promptly (and in any event within twenty-four (24) hours) following entry into any such agreement, including any amendments or\nsupplements thereof.”\nGTCR and the Company hereby agree to amend and restate in its entirety the first sentence of Section 5 of the Non-Disclosure Agreement\nas follows:\n“At any time after the Termination Date, upon the request of the Company for any reason, you shall (and will direct your Representatives\nto) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all\nEvaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media)\nfurnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your\nRepresentatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance\nwith document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that\nappropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may\nbe, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further,\nhowever, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to\ndocument your consideration of a Transaction for the purpose of establishing compliance with any applicable laws or regulations and for\ndefending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation\nMaterial; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to\nwhich access is not made generally available.”\nGTCR and the Company hereby agree to amend and restate in its entirety Section 10 of the Non-Disclosure Agreement as follows:\n“10. [Reserved.]”\nGTCR and the Company hereby agree to amend the Non-Disclosure Agreement by attaching thereto as Annex I the Annex I attached to\nthis amendment to the Non-Disclosure Agreement.\n».LOGO\nExcept as specifically set forth above, the Non-Disclosure Agreement shall remain in full force and effect and is hereby ratified and\nconfirmed.\nThis amendment to the Non-Disclosure Agreement shall be governed by, and construed in accordance with, the internal procedural and\nsubstantive laws of the State of Delaware, without reference to the conflict of law principles of that state.\nThe parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of\nDelaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this\namendment to the Non-Disclosure Agreement and the transactions contemplated hereby, and further agree that service of any process, summons,\nnotice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any\naction, suit or proceeding brought against it in any such court. The parties to this amendment to the Non-Disclosure Agreement hereby\nirrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the\ntransactions contemplated hereby, in the state courts of the State of Delaware or of the United State District Court for the District of Delaware,\nand hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n[Remainder of page intentionally left blank.]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to this amendment to the Non-Disclosure\nAgreement, whereupon this amendment to the Non-Disclosure Agreement shall become a binding agreement.\nVery Truly Yours,\nGTCRLLC\nBy: /s/ Mark M. Anderson\nName: Mark M. Anderson\nTitle: Manager\n[Signature Page to Amendment to Non-Disclosure Agreement]\nAGREED AND ACCEPTED\nas of the 6th day of April, 2014:\nVOCUS, INC.\nBy: /s/ Richard Rudman\nName: Richard Rudman\nTitle: Chief Executive Officer and President\n[Signature Page to Amendment to Non-Disclosure Agreement]	EX-99.(D)(7) 15 d701401dex99d7.htm AMENDMENT TO NON-DISCLOSURE AGREEMENT\nExhibit (d)(7)\nEXECUTION VERSION\nLOGO\nApril 6, 2014\nPRIVATE AND CONFIDENTIAL\nVocus, Inc.\n12051 Indian Creek Court\nBeltsville, MD 20705\nRe: Amendment to Non-Disclosure Agreement\nGentlemen:\nReference is made to that certain Non-Disclosure Agreement, dated December 20, 2013 (the "Non-Disclosure Agreement"), by and\nbetween Vocus, Inc. (the Company.") and GTCR LLC ("GTCR"), a copy of which is attached hereto as Exhibit A. Capitalized terms used but not\ndefined herein shall have the meanings given to such terms in the Non-Disclosure Agreement.\nGTCR and the Company hereby agree to amend and restate in its entirety the final sentence of Section 3 of the Non-Disclosure Agreement\nas follows:\n"Without limiting the generality of the foregoing and for purposes of clarification, except (a) with the prior written consent of Vocus or\n(b) for Jefferies Finance LLC, you agree that you shall not enter into any exclusivity agreement or arrangement with respect to a\nTransaction with any bank or other debt financing source. Notwithstanding anything in this Agreement to the contrary, you and your\nRepresentatives shall be permitted at any time prior to the termination of that certain Agreement and Plan of Merger, dated as of April 6,\n2014, by and among GTCR Valor Companies, Inc., a Delaware corporation, GTCR Valor Merger Sub, Inc., a Delaware corporation and\nwholly owned Subsidiary of Parent, and Vocus (the "Merger Agreement") pursuant to Article X thereof (the "Termination Date") to\ndisclose Evaluation Material, hold confidential discussions and negotiations, and disclose Transaction Information (only to the extent\nrelevant to such discussions and negotiations), with those persons identified on Annex I to this Agreement (each an "Initial Permitted\nDisclosure Party.") and, with the prior written consent of Vocus, the giving or withholding of which consent shall be in the\nsole\ndiscretion\nof\nVocus, any other person (each an "Additional Permitted Disclosure Party." and, together with each Initial Permitted Disclosure Party, a\n"Permitted Disclosure Party.") and, in each case, their respective Representatives regarding any equity or co-investment participation by\nsuch person with you in the Transaction or any transaction to acquire a portion of the equity or assets of Vocus or its subsidiaries; provided,\nthat consent of Vocus shall not be unreasonably withheld or delayed in the case of the first three (3) Additional Permitted Disclosure\nParties; provided, further, that each Permitted Disclosure Party is bound by a confidentiality agreement with you restricting the disclosure\nand use by such Permitted Disclosure Party and its Representatives of the fact and content of such discussions and negotiations, the\nEvaluation Material and the\nLOGO\nTransaction Information, containing terms (excluding standstill provisions) not less restrictive in the aggregate upon such persons than the\nterms applicable to you in this Agreement and providing that Vocus is an express third party beneficiary of such confidentiality agreement\n(each such agreement, an "Acceptable Confidentiality Agreement") and, provided, further, that you shall not make any Evaluation Material\navailable to such persons or their respective Representatives until the commencement of the Marketing Period (as defined in the Merger\nAgreement). You shall provide to Vocus a complete copy of any Acceptable Confidentiality Agreement with any Permitted Disclosure\nParty promptly (and in any event within twenty-four (24) hours) following entry into any such agreement, including any amendments\nor\nsupplements thereof."\nGTCR and the Company hereby agree to amend and restate in its entirety the first sentence of Section 5 of the Non-Disclosure Agreement\nas follows:\n"At any time after the Termination Date, upon the request of the Company for any reason, you shall (and will direct your Representatives\nto) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all\nEvaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media)\nfurnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your\nRepresentatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance\nwith document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that\nappropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may\nbe, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further,\nhowever, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to\ndocument your consideration of a Transaction for the purpose of establishing compliance with any applicable laws or regulations and for\ndefending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation\nMaterial; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel's record archives to\nwhich access is not made generally available."\nGTCR and the Company hereby agree to amend and restate in its entirety Section 10 of the Non-Disclosure Agreement as follows:\n"10. [Reserved.]"\nGTCR and the Company hereby agree to amend the Non-Disclosure Agreement by attaching thereto as Annex I the Annex I attached to\nthis amendment to the Non-Disclosure Agreement.\nALOGO\nExcept as specifically set forth above, the Non-Disclosure Agreement shall remain in full force and effect and is hereby ratified and\nconfirmed.\nThis amendment to the Non-Disclosure Agreement shall be governed by, and construed in accordance with, the internal procedural and\nsubstantive laws of the State of Delaware, without reference to the conflict of law principles of that state.\nThe parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of\nDelaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this\namendment to the Non-Disclosure Agreement and the transactions contemplated hereby, and further agree that service of any process, summons,\nnotice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for\nany\naction, suit or proceeding brought against it in any such court. The parties to this amendment to the Non-Disclosure Agreement hereby\nirrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the\ntransactions contemplated hereby, in the state courts of the State of Delaware or of the United State District Court for the District of Delaware,\nand hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n[Remainder of page intentionally left blank.]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to this amendment to the Non-Disclosure\nAgreement, whereupon this amendment to the Non-Disclosure Agreement shall become a binding agreement.\nVery Truly Yours,\nGTCR LLC\nBy: /s/ Mark M. Anderson\nName: Mark M. Anderson\nTitle: Manager\n[Signature Page to Amendment to Non-Disclosure Agreement]\nAGREED AND ACCEPTED\nas of the 6th day of April, 2014:\nVOCUS, INC.\nBy: /s/ Richard Rudman\nName: Richard Rudman\nTitle: Chief Executive Officer and President\n[Signature Page to Amendment to Non-Disclosure Agreement]	EX-99.(D)(7) 15 d701401dex99d7.htm AMENDMENT TO NON-DISCLOSURE AGREEMENT\nExhibit (d)(7)\nEXECUTION VERSION\nLOGO\nApril 6, 2014\nPRIVATE AND CONFIDENTIAL\nVocus, Inc.\n12051 Indian Creek Court\nBeltsville, MD 20705\nRe: Amendment to Non-Disclosure Agreement\nGentlemen:\nReference is made to that certain Non-Disclosure Agreement, dated December 20, 2013 (the “Non-Disclosure Agreement”), by and\nbetween Vocus, Inc. (the Company”) and GTCR LLC (“GTCR”), a copy of which is attached hereto as Exhibit A. Capitalized terms used but not\ndefined herein shall have the meanings given to such terms in the Non-Disclosure Agreement.\nGTCR and the Company hereby agree to amend and restate in its entirety the final sentence of Section 3 of the Non-Disclosure Agreement\nas follows:\n“Without limiting the generality of the foregoing and for purposes of clarification, except (a) with the prior written consent of Vocus or\n(b) for Jefferies Finance LLC, you agree that you shall not enter into any exclusivity agreement or arrangement with respect to a\nTransaction with any bank or other debt financing source. Notwithstanding anything in this Agreement to the contrary, you and your\nRepresentatives shall be permitted at any time prior to the termination of that certain Agreement and Plan of Merger, dated as of April 6,\n2014, by and among GTCR Valor Companies, Inc., a Delaware corporation, GTCR Valor Merger Sub, Inc., a Delaware corporation and\nwholly owned Subsidiary of Parent, and Vocus (the “Merger Agreement”) pursuant to Article X thereof (the “Termination Date”) to\ndisclose Evaluation Material, hold confidential discussions and negotiations, and disclose Transaction Information (only to the extent\nrelevant to such discussions and negotiations), with those persons identified on Annex I to this Agreement (each an “Initial Permitted\nDisclosure Party”) and, with the prior written consent of Vocus, the giving or withholding of which consent shall be in the sole discretion of\nVocus, any other person (each an “Additional Permitted Disclosure Party” and, together with each Initial Permitted Disclosure Party, a\n“Permitted Disclosure Party”) and, in each case, their respective Representatives regarding any equity or co-investment participation by\nsuch person with you in the Transaction or any transaction to acquire a portion of the equity or assets of Vocus or its subsidiaries; provided,\nthat consent of Vocus shall not be unreasonably withheld or delayed in the case of the first three (3) Additional Permitted Disclosure\nParties; provided, further, that each Permitted Disclosure Party is bound by a confidentiality agreement with you restricting the disclosure\nand use by such Permitted Disclosure Party and its Representatives of the fact and content of such discussions and negotiations, the\nEvaluation Material and the\nLOGO\nTransaction Information, containing terms (excluding standstill provisions) not less restrictive in the aggregate upon such persons than the\nterms applicable to you in this Agreement and providing that Vocus is an express third party beneficiary of such confidentiality agreement\n(each such agreement, an “Acceptable Confidentiality Agreement”) and, provided, further, that you shall not make any Evaluation Material\navailable to such persons or their respective Representatives until the commencement of the Marketing Period (as defined in the Merger\nAgreement). You shall provide to Vocus a complete copy of any Acceptable Confidentiality Agreement with any Permitted Disclosure\nParty promptly (and in any event within twenty-four (24) hours) following entry into any such agreement, including any amendments or\nsupplements thereof.”\nGTCR and the Company hereby agree to amend and restate in its entirety the first sentence of Section 5 of the Non-Disclosure Agreement\nas follows:\n“At any time after the Termination Date, upon the request of the Company for any reason, you shall (and will direct your Representatives\nto) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all\nEvaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media)\nfurnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your\nRepresentatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance\nwith document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that\nappropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may\nbe, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further,\nhowever, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to\ndocument your consideration of a Transaction for the purpose of establishing compliance with any applicable laws or regulations and for\ndefending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation\nMaterial; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to\nwhich access is not made generally available.”\nGTCR and the Company hereby agree to amend and restate in its entirety Section 10 of the Non-Disclosure Agreement as follows:\n“10. [Reserved.]”\nGTCR and the Company hereby agree to amend the Non-Disclosure Agreement by attaching thereto as Annex I the Annex I attached to\nthis amendment to the Non-Disclosure Agreement.\nLOGO\nExcept as specifically set forth above, the Non-Disclosure Agreement shall remain in full force and effect and is hereby ratified and\nconfirmed.\nThis amendment to the Non-Disclosure Agreement shall be governed by, and construed in accordance with, the internal procedural and\nsubstantive laws of the State of Delaware, without reference to the conflict of law principles of that state.\nThe parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of\nDelaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this\namendment to the Non-Disclosure Agreement and the transactions contemplated hereby, and further agree that service of any process, summons,\nnotice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any\naction, suit or proceeding brought against it in any such court. The parties to this amendment to the Non-Disclosure Agreement hereby\nirrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the\ntransactions contemplated hereby, in the state courts of the State of Delaware or of the United State District Court for the District of Delaware,\nand hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n[Remainder of page intentionally left blank.]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to this amendment to the Non-Disclosure\nAgreement, whereupon this amendment to the Non-Disclosure Agreement shall become a binding agreement.\nVery Truly Yours,\nGTCR LLC\nBy: /s/ Mark M. Anderson\nName: Mark M. Anderson\nTitle: Manager\n[Signature Page to Amendment to Non-Disclosure Agreement]\nAGREED AND ACCEPTED\nas of the 6th day of April, 2014:\nVOCUS, INC.\nBy: /s/ Richard Rudman\nName: Richard Rudman\nTitle: Chief Executive Officer and President\n[Signature Page to Amendment to Non-Disclosure Agreement]
782c651fc7cf288ec2f8857de0d6bb58.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm NON-SOLICITATION/NON -ACCEPT AND CONFIDENTIALITY AGREEMENT AND\nRELEASE\nExhibit 10.1\nNON-SOLICITATION/NON -ACCEPT AND\nCONFIDENTIALITY AGREEMENT AND RELEASE\nIn consideration of the Special Stock Award granted to me by Boston Private Financial Holdings, (the “Company” which for purposes of this\nAgreement shall include any and all of Boston Private Financial Holdings’ wholly or partially owned subsidiaries) pursuant to the Boston Private\nFinancial Holdings, Inc. 2004 Stock Option and Incentive Plan, (the “Plan”), which is attached hereto, I hereby agree as follows:\n1. During the term of my employment and thereafter, I agree to keep secret and retain in strictest confidence, and will not disclose, without the\nprior written consent of the Company, any Confidential Information. I understand that the term “Confidential Information” includes, but is not\nlimited to, any information relating to the business or affairs of the Company including but not limited to financial statements, business plans,\npersonnel, operations, technology, customer lists and identities, potential customers, employees, servicing methods, strategies, analyses, profit\nmargins or other proprietary information in connection with the Company; provided, however, that Confidential Information shall not include any\ninformation which is in the public domain or becomes known in the industry through no wrongful act on my part. I further agree and acknowledge\nthat the Confidential Information is vital, sensitive, confidential and proprietary to the Company.\n2. During the term of my employment with the Company, and for a period ending on the second anniversary of the effective date of my\ntermination of employment with the Company, I will not directly or indirectly:\n(a) solicit or accept for employment or employ any person then, or within the prior six (6) months, employed by the Company, or request,\ninfluence or advise any person who is employed by or is in the service of the Company to leave such employment or service of the Company;\nor\n(b) influence or advise any business that is or may be competitive with the business of the Company to employ or otherwise engage the\nservices of any person who is employed by or is in the service of the Company; or\n(c) solicit or accept any customer of the Company or request, induce or advise any customer of the Company to withdraw, curtail,\ndiminish, terminate or cancel their business with the Company.\nFor purposes of this Agreement, I understand and acknowledge that a business is or may be “competitive” with the Company if such business\nis engaged in banking, investment management, financial planning, trust administration or other related financial services.\nI hereby acknowledge the necessity of the protection provided to the Company under this Agreement. I have carefully considered the nature\nand scope of such protection. The Company and I hereby agree that the unique nature of the business of the Company requires the protection\nspecified in this Agreement. The consideration provided for in this Agreement and in the Awards is sufficient and adequate to compensate me for\nagreeing to the restrictions contained herein. I\nacknowledge that I can continue to actively pursue my career and earn sufficient compensation without breaching any of the foregoing restrictions.\nThe period of this Agreement is expressly represented and agreed to be fair, reasonable and necessary.\n3. I hereby acknowledge that upon my breach of any of the covenants contained in this Agreement, the Company will suffer irreparable\ndamages for which the remedy at law will be inadequate, and that an injunction may be entered against me by any court having jurisdiction,\nrestraining me from breaching any of the provisions of this agreement or continuing the breach of any such provisions. Resort to such equitable\nrelief, however, shall not be construed to be a waiver by the Company of any other rights or remedies that they may have damages or otherwise.\n4. I recognize that during my employment with the Company I will be required to comply with all reasonable rules and regulations relating to\nsuch employment as may from time to time be promulgated by the Company. It is my understanding that the Company may terminate my\nemployment by it at any time, with or without cause. Subject to the terms and conditions set forth in: (i) the Plan and any Awards granted to me\nthereunder, (ii) the restricted stock agreement, and (iii) any written offers containing terms of employment, this Agreement contains the entire\nunderstanding and agreement between the parties and cannot be amended, modified or supplemented in any respect, except as permitted under the\nPlan or by a subsequent written agreement entered into by both parties. I acknowledge that this Agreement and my receipt of Awards under the Plan\nextinguishes all commitments or obligations of the Company whether or not in writing, which may have been made to me regarding receipt of or\nparticipation in long-term incentive compensation awards in or by the Company.\n5. This Agreement is binding upon and will inure to the benefit of any successor to the Company whether by way of a merger, purchase,\nconsolidation or otherwise but only to the extent the successor to the Company continues to maintain the Plan.\n6. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Massachusetts without regard to\nconflict of law provisions.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date shown below.\nJ.H . Cromarty\nEMPLOYEE\nTimothy L. Vaill\nFOR THE COMPANY\n/s/ J.H. Cromarty\nSignature\n/s/ Timothy L. Vaill\nSignature\nDATE: March 1, 2005\n2	EX-10.1 2 dex101.htm NON-SOLICITATION/NON-ACCEPT AND CONFIDENTIALITY AGREEMENT AND\nRELEASE\nExhibit 10.1\nNON-SOLICITATION/NON-ACCEPT AND\nCONFIDENTIALITY AGREEMENT AND RELEASE\nIn consideration of the Special Stock Award granted to me by Boston Private Financial Holdings, (the “Company” which for purposes of this\nAgreement shall include any and all of Boston Private Financial Holdings” wholly or partially owned subsidiaries) pursuant to the Boston Private\nFinancial Holdings, Inc. 2004 Stock Option and Incentive Plan, (the “Plan”), which is attached hereto, I hereby agree as follows:\n1. During the term of my employment and thereafter, I agree to keep secret and retain in strictest confidence, and will not disclose, without the\nprior written consent of the Company, any Confidential Information. I understand that the term “Confidential Information” includes, but is not\nlimited to, any information relating to the business or affairs of the Company including but not limited to financial statements, business plans,\npersonnel, operations, technology, customer lists and identities, potential customers, employees, servicing methods, strategies, analyses, profit\nmargins or other proprietary information in connection with the Company; provided, however, that Confidential Information shall not include any\ninformation which is in the public domain or becomes known in the industry through no wrongful act on my part. I further agree and acknowledge\nthat the Confidential Information is vital, sensitive, confidential and proprietary to the Company.\n2. During the term of my employment with the Company, and for a period ending on the second anniversary of the effective date of my\ntermination of employment with the Company, I will not directly or indirectly:\n(a) solicit or accept for employment or employ any person then, or within the prior six (6) months, employed by the Company, or request,\ninfluence or advise any person who is employed by or is in the service of the Company to leave such employment or service of the Company;\nor\n(b) influence or advise any business that is or may be competitive with the business of the Company to employ or otherwise engage the\nservices of any person who is employed by or is in the service of the Company; or\n(c) solicit or accept any customer of the Company or request, induce or advise any customer of the Company to withdraw, curtail,\ndiminish, terminate or cancel their business with the Company.\nFor purposes of this Agreement, I understand and acknowledge that a business is or may be “competitive” with the Company if such business\nis engaged in banking, investment management, financial planning, trust administration or other related financial services.\nI hereby acknowledge the necessity of the protection provided to the Company under this Agreement. I have carefully considered the nature\nand scope of such protection. The Company and I hereby agree that the unique nature of the business of the Company requires the protection\nspecified in this Agreement. The consideration provided for in this Agreement and in the Awards is sufficient and adequate to compensate me for\nagreeing to the restrictions contained herein. I\nacknowledge that I can continue to actively pursue my career and earn sufficient compensation without breaching any of the foregoing restrictions.\nThe period of this Agreement is expressly represented and agreed to be fair, reasonable and necessary.\n3. I hereby acknowledge that upon my breach of any of the covenants contained in this Agreement, the Company will suffer irreparable\ndamages for which the remedy at law will be inadequate, and that an injunction may be entered against me by any court having jurisdiction,\nrestraining me from breaching any of the provisions of this agreement or continuing the breach of any such provisions. Resort to such equitable\nrelief, however, shall not be construed to be a waiver by the Company of any other rights or remedies that they may have damages or otherwise.\n4.1recognize that during my employment with the Company I will be required to comply with all reasonable rules and regulations relating to\nsuch employment as may from time to time be promulgated by the Company. It is my understanding that the Company may terminate my\nemployment by it at any time, with or without cause. Subject to the terms and conditions set forth in: (i) the Plan and any Awards granted to me\nthereunder, (ii) the restricted stock agreement, and (iii) any written offers containing terms of employment, this Agreement contains the entire\nunderstanding and agreement between the parties and cannot be amended, modified or supplemented in any respect, except as permitted under the\nPlan or by a subsequent written agreement entered into by both parties. I acknowledge that this Agreement and my receipt of Awards under the Plan\nextinguishes all commitments or obligations of the Company whether or not in writing, which may have been made to me regarding receipt of or\nparticipation in long-term incentive compensation awards in or by the Company.\n5. This Agreement is binding upon and will inure to the benefit of any successor to the Company whether by way of a merger, purchase,\nconsolidation or otherwise but only to the extent the successor to the Company continues to maintain the Plan.\n6. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Massachusetts without regard to\nconflict of law provisions.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date shown below.\nJ.H. Cromarty Timothy L. Vaill\nEMPLOYEE FOR THE COMPANY\n/s/ J.H. Cromarty /s/  Timothy L. Vaill\nSignature Signature\nDATE: March 1, 2005	EX-10.1 2 dex101.htm NON-SOLICITATION/NON-ACCEPT AND CONFIDENTIALITY AGREEMENT AND\nRELEASE\nExhibit 10.1\nNON-SOLICITATIONNON-ACCEPT AND\nCONFIDENTIALITY AGREEMENT AND RELEASE\nIn consideration of the Special Stock Award granted to me by Boston Private Financial Holdings, (the "Company" which for purposes of this\nAgreement shall include any and all of Boston Private Financial Holdings' wholly or partially owned subsidiaries) pursuant to the Boston Private\nFinancial Holdings, Inc. 2004 Stock Option and Incentive Plan, (the "Plan"), which is attached hereto, I hereby agree as follows:\n1. During the term of my employment and thereafter, I agree to keep secret and retain in strictest confidence, and will not disclose, without the\nprior written consent of the Company, any Confidential Information. I understand that the term "Confidential Information" includes, but is not\nlimited to, any information relating to the business or affairs of the Company including but not limited to financial statements, business plans,\npersonnel, operations, technology, customer lists and identities, potential customers, employees, servicing methods, strategies, analyses, profit\nmargins or other proprietary information in connection with the Company; provided, however, that Confidential Information shall not include any\ninformation which is in the public domain or becomes known in the industry through no wrongful act on my part. I further agree and acknowledge\nthat the Confidential Information is vital, sensitive, confidential and proprietary to the Company.\n2. During the term of my employment with the Company, and for a period ending on the second anniversary of the effective date of my\ntermination of employment with the Company, I will not directly or indirectly:\n(a) solicit or accept for employment or employ any person then, or within the prior six (6) months, employed by the Company, or request,\ninfluence or advise any person who is employed by or is in the service of the Company to leave such employment or service of the Company;\nor\n(b) influence or advise any business that is or may be competitive with the business of the Company to employ or otherwise engage the\nservices of any person who is employed by or is in the service of the Company; or\n(c) solicit or accept any customer of the Company or request, induce or advise any customer of the Company to withdraw, curtail,\ndiminish, terminate or cancel their business with the Company.\nFor purposes of this Agreement, I understand and acknowledge that a business is or may be "competitive" with the Company if such business\nis engaged in banking, investment management, financial planning, trust administration or other related financial services.\nI hereby acknowledge the necessity of the protection provided to the Company under this Agreement. I have carefully considered the nature\nand scope of such protection. The Company and I hereby agree that the unique nature of the business of the Company requires the protection\nspecified in this Agreement. The consideration provided for in this Agreement and in the Awards is sufficient and adequate to compensate me for\nagreeing to the restrictions contained herein. I\nacknowledge that I can continue to actively pursue my career and earn sufficient compensation without breaching any of the foregoing restrictions.\nThe period of this Agreement is expressly represented and agreed to be fair, reasonable and necessary.\n3. I hereby acknowledge that upon my breach of any of the covenants contained in this Agreement, the Company will suffer irreparable\ndamages for which the remedy at law will be inadequate, and that an injunction may be entered against me by any court having jurisdiction,\nrestraining me from breaching any of the provisions of this agreement or continuing the breach of any such provisions. Resort to such equitable\nrelief, however, shall not be construed to be a waiver by the Company of any other rights or remedies that they may have damages or otherwise.\n4. I recognize that during my employment with the Company I will be required to comply with all reasonable rules and regulations relating\nto\nsuch employment as may from time to time be promulgated by the Company. It is my understanding that the Company may terminate my\nemployment by it at any time, with or without cause. Subject to the terms and conditions set forth in: (i) the Plan and any Awards granted to me\nthereunder, (ii) the restricted stock agreement, and (iii) any written offers containing terms of employment, this Agreement contains the entire\nunderstanding and agreement between the parties and cannot be amended, modified or supplemented in any respect, except as permitted under the\nPlan or by a subsequent written agreement entered into by both parties. I acknowledge that this Agreement and my receipt of Awards under the Plan\nextinguishes all commitments or obligations of the Company whether or not in writing, which may have been made to me regarding receipt of or\nparticipation in long-term incentive compensation awards in or by the Company.\n5. This Agreement is binding upon and will inure to the benefit of any successor to the Company whether by way of a merger, purchase,\nconsolidation or otherwise but only to the extent the successor to the Company continues to maintain the Plan.\n6. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Massachusetts without regard to\nconflict of law provisions.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date shown below.\nJ.H. Cromarty\nTimothy L. Vaill\nEMPLOYEE\nFOR THE COMPANY\n/s/ J.H. Cromarty\n/s/ Timothy L. Vaill\nSignature\nSignature\nDATE: March 1, 2005\n2	EX-10.1 2 dex101.htm NON-SOLICITATION/NON -ACCEPT AND CONFIDENTIALITY AGREEMENT AND\nRELEASE\nExhibit 10.1\nNON-SOLICITATION/NON -ACCEPT AND\nCONFIDENTIALITY AGREEMENT AND RELEASE\nIn consideration of the Special Stock Award granted to me by Boston Private Financial Holdings, (the “Company” which for purposes of this\nAgreement shall include any and all of Boston Private Financial Holdings’ wholly or partially owned subsidiaries) pursuant to the Boston Private\nFinancial Holdings, Inc. 2004 Stock Option and Incentive Plan, (the “Plan”), which is attached hereto, I hereby agree as follows:\n1. During the term of my employment and thereafter, I agree to keep secret and retain in strictest confidence, and will not disclose, without the\nprior written consent of the Company, any Confidential Information. I understand that the term “Confidential Information” includes, but is not\nlimited to, any information relating to the business or affairs of the Company including but not limited to financial statements, business plans,\npersonnel, operations, technology, customer lists and identities, potential customers, employees, servicing methods, strategies, analyses, profit\nmargins or other proprietary information in connection with the Company; provided, however, that Confidential Information shall not include any\ninformation which is in the public domain or becomes known in the industry through no wrongful act on my part. I further agree and acknowledge\nthat the Confidential Information is vital, sensitive, confidential and proprietary to the Company.\n2. During the term of my employment with the Company, and for a period ending on the second anniversary of the effective date of my\ntermination of employment with the Company, I will not directly or indirectly:\n(a) solicit or accept for employment or employ any person then, or within the prior six (6) months, employed by the Company, or request,\ninfluence or advise any person who is employed by or is in the service of the Company to leave such employment or service of the Company;\nor\n(b) influence or advise any business that is or may be competitive with the business of the Company to employ or otherwise engage the\nservices of any person who is employed by or is in the service of the Company; or\n(c) solicit or accept any customer of the Company or request, induce or advise any customer of the Company to withdraw, curtail,\ndiminish, terminate or cancel their business with the Company.\nFor purposes of this Agreement, I understand and acknowledge that a business is or may be “competitive” with the Company if such business\nis engaged in banking, investment management, financial planning, trust administration or other related financial services.\nI hereby acknowledge the necessity of the protection provided to the Company under this Agreement. I have carefully considered the nature\nand scope of such protection. The Company and I hereby agree that the unique nature of the business of the Company requires the protection\nspecified in this Agreement. The consideration provided for in this Agreement and in the Awards is sufficient and adequate to compensate me for\nagreeing to the restrictions contained herein. I\nacknowledge that I can continue to actively pursue my career and earn sufficient compensation without breaching any of the foregoing restrictions.\nThe period of this Agreement is expressly represented and agreed to be fair, reasonable and necessary.\n3. I hereby acknowledge that upon my breach of any of the covenants contained in this Agreement, the Company will suffer irreparable\ndamages for which the remedy at law will be inadequate, and that an injunction may be entered against me by any court having jurisdiction,\nrestraining me from breaching any of the provisions of this agreement or continuing the breach of any such provisions. Resort to such equitable\nrelief, however, shall not be construed to be a waiver by the Company of any other rights or remedies that they may have damages or otherwise.\n4. I recognize that during my employment with the Company I will be required to comply with all reasonable rules and regulations relating to\nsuch employment as may from time to time be promulgated by the Company. It is my understanding that the Company may terminate my\nemployment by it at any time, with or without cause. Subject to the terms and conditions set forth in: (i) the Plan and any Awards granted to me\nthereunder, (ii) the restricted stock agreement, and (iii) any written offers containing terms of employment, this Agreement contains the entire\nunderstanding and agreement between the parties and cannot be amended, modified or supplemented in any respect, except as permitted under the\nPlan or by a subsequent written agreement entered into by both parties. I acknowledge that this Agreement and my receipt of Awards under the Plan\nextinguishes all commitments or obligations of the Company whether or not in writing, which may have been made to me regarding receipt of or\nparticipation in long-term incentive compensation awards in or by the Company.\n5. This Agreement is binding upon and will inure to the benefit of any successor to the Company whether by way of a merger, purchase,\nconsolidation or otherwise but only to the extent the successor to the Company continues to maintain the Plan.\n6. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Massachusetts without regard to\nconflict of law provisions.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date shown below.\nJ.H . Cromarty\nEMPLOYEE\nTimothy L. Vaill\nFOR THE COMPANY\n/s/ J.H. Cromarty\nSignature\n/s/ Timothy L. Vaill\nSignature\nDATE: March 1, 2005\n2
79659d0946a4381a1a8ffdbc3231073e.pdf	effective_date jurisdiction party term	EX-10.3 5 dex103.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nGUNARS E. VALKIRS\nExhibit 10.3\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the “Agreement”) entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Company”) and, BIOSITE\nINCORPORATED, a Delaware corporation (the “Employer”), on the one hand, and Gunars Valkirs, an individual, who is a resident of and employed\nin the State of California (“Employee”), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the “Merger Agreement”), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 172,010 shares of Common Stock of Employer and has options to purchase 285,306 shares of Common Stock of\nEmployer (the “Employee Options”), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property Rights.\n(a) Definition of “Inventions.” As used herein, the term “Inventions” shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee’s employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), and that Employer is to be the “author”\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment is\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. “Trade Secrets” shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company to\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe sole option of Employer, bear Employer’s patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f) Further Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer’s reasonable\nrequest and at Employer’s expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer’s rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer’s exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer’s rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee’s technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer’s request rendering such assistance.\n(g) Power of Attorney. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee’s possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee’s unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. “Confidential Information” shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer’s request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating to\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n4\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer’s and the Company’s interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n“Restricted Period”), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a “Competitor” is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the “Biosite Business”); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company, or\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the “beneficial ownership” by Employee, either individually or as a member of a “group,” as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the “Exchange Act”), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities, compensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and in\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee’s responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee’s\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase of the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party Beneficiaries. Employer’s parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee’s obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer’s Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as “Attorneys”) in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to the period of Employee’s employment with Employer. Employee’s\nduty of cooperation\n7\nshall include, but shall not be limited to, (a) meeting with Attorneys by telephone or in person at mutually convenient times and places in order to\nstate truthfully Employee’s knowledge of the matters at issue and recollection of events; (b) appearing at Attorneys’ request (and, to the extent\nreasonably possible, at a time convenient to Employee that does not conflict with the needs or requirements of Employee’s then current employer) as\na witness at depositions, trials or other proceedings, without the necessity of a subpoena, in order to state truthfully Employee’s knowledge of the\nmatters at issue; and (c) signing at Attorneys’ request declarations or affidavits that truthfully state the matters of which Employee has knowledge.\nEmployer shall promptly reimburse Employee for Employee’s actual and reasonable travel and other out-of-pocket expenses that Employee may\nincur in cooperating with Attorneys pursuant to this Section 3. In addition, to the extent that, after the termination of Employee’s employment for\nany reason, Employee provides cooperation pursuant to this Section 3, Employer shall, upon Employee request, compensate Employee at a\nreasonable rate for the time actually spent by Employee at Employer’s request rendering such cooperation. The provisions of this Section 3 are in\naddition to any other written agreements on this subject that Employee may have with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and are not meant to and do not excuse any additional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute “Good Reason” as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the “Biosite Severance Plan”) prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the “Option Consideration”). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein. Employee acknowledges that this Section 5(a) is in lieu of any benefits to which the\n8\nEmployee may be entitled under (i) Section 4(a)(1)(iii) of the Biosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee’s current rate of base salary ($240,006) (the “Current Base\nSalary”), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee’s employment by\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the “Transition Period”). For\npurposes of this Agreement only, “Good Cause” means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than on an eighty percent (80%) basis, or\nperform work that is other than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee\nacknowledges that this Section 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite\nSeverance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee’s Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee’s Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee’s employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee’s “Negotiated Bonus” is an amount equal to 50% of the Employee’s Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(ii) of the Biosite Severance Plan remains in full force and effect except that Employer agrees that the period set forth therein shall be extended\nfrom eighteen (18) to twenty-four (24) months.\n(e) The parties hereto acknowledge that after September 30, 2007, the Employee intends to relocate out of the area and will perform his\nresponsibilities under this Agreement remotely and that such relocation and remote work will not impact any benefits to which Employee is entitled\nunder this Agreement or the Biosite Severance Plan.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee’s separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee is considered a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest,\n9\npenalties and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,\nthen no such payment shall be payable or benefit shall be provided prior to the date that is the earliest of (i) six months and one day after the\nEmployee’s date of termination, (ii) the Employee’s death, or (iii) such other date as will cause such payment not to be subject to such interest,\npenalties and additional tax, and the initial payment or provision of benefit shall include a catch-up amount covering amounts that would otherwise\nhave been paid during the first six-month period but for the application of this Section 6. The parties intend that this Agreement will be administered\nin accordance with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and\nas may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and\nbenefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S . Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10\n10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee’s employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys’ fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator’s fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n11\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n12\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL\nINNOVATIONS, INC.\nA Delaware corporation\nBy: /s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy: /s/ Chris Twomey\nName: Chris Twomey\nTitle: Sr. VP Finance, CFO\nGUNARS VALKIRS\n/s/ Gunars E. Valkirs\nSr. VP, Discovery\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n13\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\n14	EX-10.3 5 dex103.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nGUNARS E. VALKIRS\nExhibit 10.3\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the “Agreement”) entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Company”) and, BIOSITE\nINCORPORATED, a Delaware corporation (the “Employer”), on the one hand, and Gunars Valkirs, an individual, who is a resident of and employed\nin the State of California (“Employee”), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the “Merger Agreement”), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 172,010 shares of Common Stock of Employer and has options to purchase 285,306 shares of Common Stock of\nEmployer (the “Employee Options™), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property Rights.\n(a) Definition of “Inventions.” As used herein, the term “Inventions” shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee’s employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), and that Employer is to be the “author”\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment is\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. “Trade Secrets” shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company to\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe sole option of Employer, bear Employer’s patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f) Further Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer’s reasonable\nrequest and at Employer’s expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer’s rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer’s exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer’s rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee’s technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer’s request rendering such assistance.\n(g) Power of Attorney. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee’s possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee’s unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. “Confidential Information” shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer’s request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating to\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer’s and the Company’s interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n“Restricted Period”), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a “Competitor” is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the “Biosite Business™); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company, or\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the “beneficial ownership” by Employee, either individually or as a member of a “group,” as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the “Exchange Act”), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities, compensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and in\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee’s responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee’s\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase of the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party Beneficiaries. Employer’s parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee’s obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer’s Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as “Attorneys™) in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to the period of Employee’s employment with Employer. Employee’s\nduty of cooperation\nshall include, but shall not be limited to, (a) meeting with Attorneys by telephone or in person at mutually convenient times and places in order to\nstate truthfully Employee’s knowledge of the matters at issue and recollection of events; (b) appearing at Attorneys’ request (and, to the extent\nreasonably possible, at a time convenient to Employee that does not conflict with the needs or requirements of Employee’s then current employer) as\na witness at depositions, trials or other proceedings, without the necessity of a subpoena, in order to state truthfully Employee’s knowledge of the\nmatters at issue; and (c) signing at Attorneys’ request declarations or affidavits that truthfully state the matters of which Employee has knowledge.\nEmployer shall promptly reimburse Employee for Employee’s actual and reasonable travel and other out-of-pocket expenses that Employee may\nincur in cooperating with Attorneys pursuant to this Section 3. In addition, to the extent that, after the termination of Employee’s employment for\nany reason, Employee provides cooperation pursuant to this Section 3, Employer shall, upon Employee request, compensate Employee at a\nreasonable rate for the time actually spent by Employee at Employer’s request rendering such cooperation. The provisions of this Section 3 are in\naddition to any other written agreements on this subject that Employee may have with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and are not meant to and do not excuse any additional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute “Good Reason” as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the “Biosite Severance Plan”) prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the “Option Consideration”). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein. Employee acknowledges that this Section 5(a) is in lieu of any benefits to which the\n8\nEmployee may be entitled under (i) Section 4(a)(1)(iii) of the Biosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee’s current rate of base salary ($240,006) (the “Current Base\nSalary”), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee’s employment by\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the “Transition Period”). For\npurposes of this Agreement only, “Good Cause” means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than on an eighty percent (80%) basis, or\nperform work that is other than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee\nacknowledges that this Section 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite\nSeverance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee’s Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee’s Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee’s employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee’s “Negotiated Bonus” is an amount equal to 50% of the Employee’s Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(i) of the Biosite Severance Plan remains in full force and effect except that Employer agrees that the period set forth therein shall be extended\nfrom eighteen (18) to twenty-four (24) months.\n(e) The parties hereto acknowledge that after September 30, 2007, the Employee intends to relocate out of the area and will perform his\nresponsibilities under this Agreement remotely and that such relocation and remote work will not impact any benefits to which Employee is entitled\nunder this Agreement or the Biosite Severance Plan.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee’s separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee is considered a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest,\n9\npenalties and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,\nthen no such payment shall be payable or benefit shall be provided prior to the date that is the earliest of (i) six months and one day after the\nEmployee’s date of termination, (ii) the Employee’s death, or (iii) such other date as will cause such payment not to be subject to such interest,\npenalties and additional tax, and the initial payment or provision of benefit shall include a catch-up amount covering amounts that would otherwise\nhave been paid during the first six-month period but for the application of this Section 6. The parties intend that this Agreement will be administered\nin accordance with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and\nas may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and\nbenefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n \n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10\n10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee’s employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys’ fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator’s fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n11\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n12\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL\nINNOVATIONS, INC.\nA Delaware corporation\nBy: /s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy: /s/ Chris Twomey\nName: Chris Twomey\nTitle: Sr. VP Finance, CFO\nGUNARS VALKIRS\n/s/ Gunars E. Valkirs\nSr. VP, Discovery\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n13\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an (b)\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\n14	EX-10.3 5 dex103.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nGUNARS E. VALKIRS\nExhibit 10.3\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the "Agreement") entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the "Company") and, BIOSITE\nINCORPORATED, a Delaware corporation (the "Employer"), on the one hand, and Gunars Valkirs, an individual, who is a resident of and employed\nin the State of California ("Employee"), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the "Merger Agreement"), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 172,010 shares of Common Stock of Employer and has options to purchase 285,306 shares of Common Stock of\nEmployer (the "Employee Options"), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property. Rights.\n(a) Definition of "Inventions." As used herein, the term "Inventions" shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee's employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered "works made for hire" within the meaning of the Copyright Act of 1976, as amended (the "Act"), and that Employer is to be the "author"\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment\nis\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. "Trade Secrets" shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company\nto\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe\nsole option of Employer, bear Employer's patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f)\nFurther Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer's reasonable\nrequest and at Employer's expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer's rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer's exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer's rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee's technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer's request rendering such assistance.\n(g) Power of Attorney.. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee's possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality.. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of\ntrust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee's unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. "Confidential Information" shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and\nall\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer's request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating\nto\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n4\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer's and the Company's interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n"Restricted Period"), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a "Competitor" is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the "Biosite Business"); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company,\nor\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the "beneficial ownership" by Employee, either individually or as a member of a "group," as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the "Exchange Act"), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities,\ncompensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and\nin\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee's responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee's\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase\nof\nthe obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party. Beneficiaries. Employer's parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee's obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer's Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party. Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as "Attorneys") in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to the period of Employee's employment with Employer. Employee's\nduty of cooperation\n7\nshall include, but shall not be limited to, (a) meeting with Attorneys by telephone or in person at mutually convenient times and places in order to\nstate truthfully Employee's knowledge of the matters at issue and recollection of events; (b) appearing at Attorneys' request (and, to the extent\nreasonably possible, at a time convenient to Employee that does not conflict with the needs or requirements of Employee's then current employer)\nas\na witness at depositions, trials or other proceedings, without the necessity of a subpoena, in order to state truthfully Employee's knowledge of the\nmatters at issue; and (c) signing at Attorneys' request declarations or affidavits that truthfully state the matters of which Employee has knowledge.\nEmployer shall promptly reimburse Employee for Employee's actual and reasonable travel and other out-of-pocket expenses that Employee may\nincur in cooperating with Attorneys pursuant to this Section 3. In addition, to the extent that, after the termination of Employee's employment\nfor\nany reason, Employee provides cooperation pursuant to this Section 3, Employer shall, upon Employee request, compensate Employee at\na\nreasonable rate for the time actually spent by Employee at Employer's request rendering such cooperation. The provisions of this Section 3\nare\nin\naddition\nto any other written agreements on this subject that Employee may have with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and are not meant to and do not excuse any additional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute "Good Reason" as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the "Biosite Severance Plan") prior to the Effective Time. Employee hereby waives any claims to\nthe\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in\nconsideration\nfor\nthe\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the "Option Consideration"). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein. Employee acknowledges that this Section 5(a) is in lieu of any benefits to which the\n8\nEmployee may be entitled under (i) Section 4(a)(1)(iii) of the Biosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee's current rate of base salary ($240,006) (the "Current Base\nSalary"), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee's employment by\nthe\nEmployer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the "Transition\nPeriod").\nFor\npurposes of this Agreement only, "Good Cause" means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than on an eighty percent (80%) basis, or\nperform work that is other than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee\nacknowledges that this Section 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite\nSeverance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee's Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee's Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee's employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee's "Negotiated Bonus" is an amount equal to 50% of the Employee's Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof\nthe Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(ii) of the Biosite Severance Plan remains in full force and effect except that Employer agrees that the period set forth therein shall be extended\nfrom eighteen (18) to twenty-four (24) months.\n(e) The parties hereto acknowledge that after September 30, 2007, the Employee intends to relocate out of the area and will perform his\nresponsibilities under this Agreement remotely and that such relocation and remote work will not impact any benefits to which Employee is entitled\nunder this Agreement or the Biosite Severance Plan.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee's separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the "Code"), the Employee is considered a "specified employee" within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest,\n9\npenalties and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,\nthen no such payment shall be payable or benefit shall be provided prior to the date that is the earliest of (i) six months and one day after the\nEmployee's date of termination, (ii) the Employee's death, or (iii) such other date as will cause such payment not to be subject to such interest,\npenalties and additional tax, and the initial payment or provision of benefit shall include a catch-up amount covering amounts that would otherwise\nhave been paid during the first six-month period but for the application of this Section 6. The parties intend that this Agreement will be administered\nin\naccordance with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and\nas may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and\nbenefits provided hereunder without additional cost to either party.\n7.\nNotices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n9. Entire Agreement This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10\n10. Severability.. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee's employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys' fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator's fees and any JAMS administrative expenses. The award of the arbitrator shall be\nfinal\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n11\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n12\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL\nINNOVATIONS, INC.\nA Delaware corporation\nBy:\n/s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy:\n/s/ Chris Twomey\nName: Chris Twomey\nTitle: Sr. VP Finance, CFO\nGUNARS VALKIRS\n/s/ Gunars E. Valkirs\nSr. VP, Discovery\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n13\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n"(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1)\nRelate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2)\nResult from any work performed by the employee for the employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."\n14	EX-10.3 5 dex103.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nGUNARS E. VALKIRS\nExhibit 10.3\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the “Agreement”) entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Company”) and, BIOSITE\nINCORPORATED, a Delaware corporation (the “Employer”), on the one hand, and Gunars Valkirs, an individual, who is a resident of and employed\nin the State of California (“Employee”), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the “Merger Agreement”), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 172,010 shares of Common Stock of Employer and has options to purchase 285,306 shares of Common Stock of\nEmployer (the “Employee Options”), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property Rights.\n(a) Definition of “Inventions.” As used herein, the term “Inventions” shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee’s employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), and that Employer is to be the “author”\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment is\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. “Trade Secrets” shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company to\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe sole option of Employer, bear Employer’s patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f) Further Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer’s reasonable\nrequest and at Employer’s expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer’s rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer’s exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer’s rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee’s technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer’s request rendering such assistance.\n(g) Power of Attorney. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee’s possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee’s unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. “Confidential Information” shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer’s request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating to\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n4\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer’s and the Company’s interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n“Restricted Period”), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a “Competitor” is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the “Biosite Business”); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company, or\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the “beneficial ownership” by Employee, either individually or as a member of a “group,” as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the “Exchange Act”), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities, compensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and in\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee’s responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee’s\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase of the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party Beneficiaries. Employer’s parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee’s obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer’s Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as “Attorneys”) in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to the period of Employee’s employment with Employer. Employee’s\nduty of cooperation\n7\nshall include, but shall not be limited to, (a) meeting with Attorneys by telephone or in person at mutually convenient times and places in order to\nstate truthfully Employee’s knowledge of the matters at issue and recollection of events; (b) appearing at Attorneys’ request (and, to the extent\nreasonably possible, at a time convenient to Employee that does not conflict with the needs or requirements of Employee’s then current employer) as\na witness at depositions, trials or other proceedings, without the necessity of a subpoena, in order to state truthfully Employee’s knowledge of the\nmatters at issue; and (c) signing at Attorneys’ request declarations or affidavits that truthfully state the matters of which Employee has knowledge.\nEmployer shall promptly reimburse Employee for Employee’s actual and reasonable travel and other out-of-pocket expenses that Employee may\nincur in cooperating with Attorneys pursuant to this Section 3. In addition, to the extent that, after the termination of Employee’s employment for\nany reason, Employee provides cooperation pursuant to this Section 3, Employer shall, upon Employee request, compensate Employee at a\nreasonable rate for the time actually spent by Employee at Employer’s request rendering such cooperation. The provisions of this Section 3 are in\naddition to any other written agreements on this subject that Employee may have with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and are not meant to and do not excuse any additional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute “Good Reason” as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the “Biosite Severance Plan”) prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the “Option Consideration”). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein. Employee acknowledges that this Section 5(a) is in lieu of any benefits to which the\n8\nEmployee may be entitled under (i) Section 4(a)(1)(iii) of the Biosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee’s current rate of base salary ($240,006) (the “Current Base\nSalary”), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee’s employment by\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the “Transition Period”). For\npurposes of this Agreement only, “Good Cause” means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than on an eighty percent (80%) basis, or\nperform work that is other than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee\nacknowledges that this Section 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite\nSeverance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee’s Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee’s Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee’s employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee’s “Negotiated Bonus” is an amount equal to 50% of the Employee’s Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(ii) of the Biosite Severance Plan remains in full force and effect except that Employer agrees that the period set forth therein shall be extended\nfrom eighteen (18) to twenty-four (24) months.\n(e) The parties hereto acknowledge that after September 30, 2007, the Employee intends to relocate out of the area and will perform his\nresponsibilities under this Agreement remotely and that such relocation and remote work will not impact any benefits to which Employee is entitled\nunder this Agreement or the Biosite Severance Plan.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee’s separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee is considered a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest,\n9\npenalties and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,\nthen no such payment shall be payable or benefit shall be provided prior to the date that is the earliest of (i) six months and one day after the\nEmployee’s date of termination, (ii) the Employee’s death, or (iii) such other date as will cause such payment not to be subject to such interest,\npenalties and additional tax, and the initial payment or provision of benefit shall include a catch-up amount covering amounts that would otherwise\nhave been paid during the first six-month period but for the application of this Section 6. The parties intend that this Agreement will be administered\nin accordance with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and\nas may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and\nbenefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S . Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10\n10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee’s employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys’ fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator’s fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n11\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n12\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL\nINNOVATIONS, INC.\nA Delaware corporation\nBy: /s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy: /s/ Chris Twomey\nName: Chris Twomey\nTitle: Sr. VP Finance, CFO\nGUNARS VALKIRS\n/s/ Gunars E. Valkirs\nSr. VP, Discovery\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n13\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\n14
796aa7574c8e4717d31704518bac663f.pdf	effective_date jurisdiction party term	EX-10 .2 3 exhibit102-confidentiality.htm EXHIBIT\nExhibit 10.2\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between\nJeffrey W. Henderson (“Executive”) and Cardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of June\n10, 2014.\nIt is hereby agreed as follows:\n1.\nConsideration and Acknowledgements. The parties acknowledge that the provisions and covenants\ncontained in this Agreement are ancillary and material to, and in consideration of, the letter agreement concerning\nExecutive’s retirement dated June 10, 2014 (the “Letter Agreement”) and that the limitations contained herein are\nreasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company.\n2.\nConfidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company\nand all of its subsidiaries, partnerships, joint ventures, limited liability companies, and other affiliates (collectively, the\n"Cardinal Group"), all secret or confidential information, knowledge or data relating to the Cardinal Group and its\nbusinesses (including, without limitation, any proprietary and not publicly available information concerning any\nprocesses, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that\nExecutive has obtained or obtains during the Executive's employment by the Cardinal Group and that is not public\nknowledge (other than as a result of the Executive's violation of this Agreement) ("Confidential Information"). For the\npurposes of this Agreement, information shall not be deemed to be publicly available merely because it is embraced by\ngeneral disclosures or because individual features or combinations thereof are publicly available. Executive shall not\ncommunicate, divulge or disseminate Confidential Information at any time during or after Executive's employment with\nthe Cardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise\nrequired by law or legal process. All records, files, memoranda, reports, customer lists, drawings, plans, documents and\nthe like that Executive uses, prepares or comes into contact with during the course of Executive's employment shall\nremain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of Executive's employment.\n3.\nNon-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the\nRestricted Period (as defined in this Agreement), without the prior written consent of the Company, engage in the\nfollowing conduct (a "Solicitation"): (i) directly or indirectly, solicit, recruit or employ (whether as an employee, officer,\ndirector, agent, consultant or independent contractor) any person who is or was at any time during the previous twelve\nmonths an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease his or her relationship with the\nCardinal Group for any reason. A "Solicitation" does not include any recruitment of employees for the Cardinal Group.\nThe "Restricted Period" means the period from the date of this Agreement\nuntil twenty-four months after Executive’s retirement date of August 21, 2015 specified in the Letter Agreement.\n4.\nNo Competition -- Solicitation of Business. During the Restricted Period, Executive shall not (as an\nofficer, agent, employee, partner, consultant or director of any other company, partnership or entity) be personally\ninvolved in direct or indirect solicitation on behalf of any competitor of the Cardinal Group of the business of (i) any\ncustomer of the Cardinal Group during the time of Executive's employment or at date of termination of employment or\n(ii) any potential customer of the Cardinal Group which Executive knew to be an identified, prospective purchaser of\nservices or products of the Cardinal Group.\n5.\nNo Competition -- Employment by Competitor. During the Restricted Period, Executive shall not invest\nin (other than in a publicly traded company with a maximum investment of no more than 1% of outstanding shares),\ncounsel, advise, or be otherwise engaged or employed by, any of the primary competitors of the Cardinal Group.\n6.\nAcknowledgement and Enforcement. Executive acknowledges and agrees that: (A) the purpose of the\nforegoing covenants, including without limitation the noncompetition covenants of Sections 4 and 5, is to protect the\ngoodwill, trade secrets and other Confidential Information of the Company; (B) because of the nature of the business in\nwhich the Cardinal Group is engaged and because of the nature of the Confidential Information to which Executive has\naccess, the Company would suffer irreparable harm and it would be impractical and excessively difficult to determine\nthe actual damages of the Cardinal Group in the event Executive breached any of the covenants of this Agreement; and\n(C) remedies at law (such as monetary damages) for any breach of Executive's obligations under this Agreement would\nbe inadequate. Executive therefore agrees and consents that if Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of,\nany other right or remedy that may be available to it) to temporary and permanent injunctive relief from a court of\ncompetent jurisdiction, without posting any bond or other security and without the necessity of proof of actual damage.\n7.\nMiscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of\nOhio, without reference to principles of conflict of laws. If, under any such law, any portion of this Agreement is at any\ntime deemed to be in conflict with any applicable statute, rule, regulation or ordinance, such portion shall be deemed to\nbe modified or altered to conform thereto. The parties hereto irrevocably agree to submit to the jurisdiction and venue of\nthe courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this Agreement.\nThe captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement\nmay not be amended or modified otherwise than by a written agreement executed by the parties hereto or their\nrespective successors and legal representatives.\n(b) All notices and other communications under this Agreement shall be in writing and shall be given by\nhand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed\nas follows:\nIf to the Executive: At the most recent address on file for Executive at the Company.\nIf to the Company: Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: General Counsel\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and\ncommunications shall be effective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement. If any provision of this Agreement shall be held invalid or\nunenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall\nremain valid and enforceable and continue in full force and effect to the fullest extent consistent with the law.\n(d) Executive's or the Company's failure to insist upon strict compliance with any provision of this\nAgreement or the failure to assert any right Executive or the Company may have hereunder, shall not be deemed to be\na waiver of such provision or right or any other provision or right of this Agreement.\nIN WITNESS WHEREOF, Executive has hereunto set Executive's hand and the Company has caused these presents\nto be executed in its name and on its behalf, all as of the day and year first above written.\n_/s/ Jeffrey W. Henderson_________________\nJeffrey W. Henderson.\nExecution Date: June 10, 2014\nCARDINAL HEALTH, INC.\n_/s/ Carole Watkins__________________\nBy: Carole Watkins\nIts: Chief Human Resources Officer\nExecution Date: June 10, 2014	EX-10.2 3 exhibit102-confidentiality.htm EXHIBIT\nExhibit 10.2\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between\nJeffrey W. Henderson (“Executive”) and Cardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of June\n10, 2014.\nIt is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants\ncontained in this Agreement are ancillary and material to, and in consideration of, the letter agreement concerning\nExecutive’s retirement dated June 10, 2014 (the “Letter Agreement”) and that the limitations contained herein are\nreasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company\nand all of its subsidiaries, partnerships, joint ventures, limited liability companies, and other affiliates (collectively, the\n"Cardinal Group"), all secret or confidential information, knowledge or data relating to the Cardinal Group and its\nbusinesses (including, without limitation, any proprietary and not publicly available information concerning any\nprocesses, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that\nExecutive has obtained or obtains during the Executive's employment by the Cardinal Group and that is not public\nknowledge (other than as a result of the Executive's violation of this Agreement) ("Confidential Information™). For the\npurposes of this Agreement, information shall not be deemed to be publicly available merely because it is embraced by\ngeneral disclosures or because individual features or combinations thereof are publicly available. Executive shall not\ncommunicate, divulge or disseminate Confidential Information at any time during or after Executive's employment with\nthe Cardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise\nrequired by law or legal process. All records, files, memoranda, reports, customer lists, drawings, plans, documents and\nthe like that Executive uses, prepares or comes into contact with during the course of Executive's employment shall\nremain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of Executive's employment.\n3. Non-Recruitment of Cardinal Group Em Emp@y&Ltc Executive shall not, at any time durlng the\nRestricted Period (as defined in this Agreement), without the prior written consent of the Company, engage in the\nfollowing conduct (a "Solicitation"): (i) directly or indirectly, solicit, recruit or employ (whether as an employee, officer,\ndirector, agent, consultant or independent contractor) any person who is or was at any time during the previous twelve\nmonths an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease his or her relationship with the\nCardinal Group for any reason. A "Solicitation" does not include any recruitment of employees for the Cardinal Group.\nThe "Restricted Period" means the period from the date of this Agreement\nuntil twenty-four months after Executive’s retirement date of August 21, 2015 specified in the Letter Agreement.\n4. No Competition -- Solicitation of Business. During the Restricted Period, Executive shall not (as an\nofficer, agent, employee, partner, consultant or director of any other company, partnership or entity) be personally\ninvolved in direct or indirect solicitation on behalf of any competitor of the Cardinal Group of the business of (i) any\ncustomer of the Cardinal Group during the time of Executive's employment or at date of termination of employment or\n(i) any potential customer of the Cardinal Group which Executive knew to be an identified, prospective purchaser of\nservices or products of the Cardinal Group.\n5. No Competition -- Employment by Competitor. During the Restricted Period, Executive shall not invest\nin (other than in a publicly traded company with a maximum investment of no more than 1% of outstanding shares),\ncounsel, advise, or be otherwise engaged or employed by, any of the primary competitors of the Cardinal Group.\n6. Acknowledgement and Enforcement. Executive acknowledges and agrees that: (A) the purpose of the\nforegoing covenants, including without limitation the noncompetition covenants of Sections 4 and 5, is to protect the\ngoodwill, trade secrets and other Confidential Information of the Company; (B) because of the nature of the business in\nwhich the Cardinal Group is engaged and because of the nature of the Confidential Information to which Executive has\naccess, the Company would suffer irreparable harm and it would be impractical and excessively difficult to determine\nthe actual damages of the Cardinal Group in the event Executive breached any of the covenants of this Agreement; and\n(C) remedies at law (such as monetary damages) for any breach of Executive's obligations under this Agreement would\nbe inadequate. Executive therefore agrees and consents that if Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of,\nany other right or remedy that may be available to it) to temporary and permanent injunctive relief from a court of\ncompetent jurisdiction, without posting any bond or other security and without the necessity of proof of actual damage.\n7. Miscellaneous.\n(& This Agreement shall be governed by and construed in accordance with the laws of the State of\nOhio, without reference to principles of conflict of laws. If, under any such law, any portion of this Agreement is at any\ntime deemed to be in conflict with any applicable statute, rule, regulation or ordinance, such portion shall be deemed to\nbe modified or altered to conform thereto. The parties hereto irrevocably agree to submit to the jurisdiction and venue of\nthe courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this Agreement.\nThe captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement\nmay not be amended or modified otherwise than by a written agreement executed by the parties hereto or their\nrespective successors and legal representatives.\n(b) All notices and other communications under this Agreement shall be in writing and shall be given by\nhand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed\nas follows:\nIf to the Executive: At the most recent address on file for Executive at the Company.\nIf to the Company:  Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: General Counsel\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and\ncommunications shall be effective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement. If any provision of this Agreement shall be held invalid or\nunenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall\nremain valid and enforceable and continue in full force and effect to the fullest extent consistent with the law.\n(d)  Executive's or the Company's failure to insist upon strict compliance with any provision of this\nAgreement or the failure to assert any right Executive or the Company may have hereunder, shall not be deemed to be\na waiver of such provision or right or any other provision or right of this Agreement.\nIN WITNESS WHEREOF, Executive has hereunto set Executive's hand and the Company has caused these presents\nto be executed in its name and on its behalf, all as of the day and year first above written.\n[s/ Jeffrey W. Henderson\nJeffrey W. Henderson.\nExecution Date: June 10, 2014\nCARDINAL HEALTH, INC.\n/s/ Carole Watkins\nBy: Carole Watkins\nIts: Chief Human Resources Officer\nExecution Date: June 10, 2014	EX-10.2 exhibit102-confidentiality.htn EXHIBIT\nExhibit 10.2\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement ("Agreement") is hereby entered into by and between\nJeffrey W. Henderson ("Executive") and Cardinal Health, Inc., an Ohio Corporation (the "Company") effective as of June\n10, 2014.\nIt is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants\ncontained in this Agreement are ancillary and material to, and in consideration of, the letter agreement concerning\nExecutive's retirement dated June 10, 2014 (the "Letter Agreement") and that the limitations contained herein are\nreasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company.\n2.\nConfidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company\nand all of its subsidiaries, partnerships, joint ventures, limited liability companies, and other affiliates (collectively, the\n"Cardina Group"), all secret or confidential information, knowledge or data relating to the Cardinal Group and its\nbusinesses (including, without limitation, any proprietary and not publicly available information concerning any\nprocesses, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts\nor\nservices,\nbusiness\nmethods,\noperating\nprocedures\nor\nprograms\nor\nmethods\nof\npromotion\nand\nsale)\nthat\nExecutive has obtained or obtains during the Executive's employment by the Cardinal Group and that is not public\nknowledge (other than as a result of the Executive's violation of this Agreement) ("Confidential Information"). For the\npurposes\nof\nthis\nAgreement,\ninformation\nshall\nnot\nbe\ndeemed\nto\nbe\npublicly\navailable\nmerely\nbecause\nit\nis\nembraced\nby\ngeneral disclosures or because individual features or combinations thereof are publicly available. Executive shall not\ncommunicate, divulge or disseminate Confidential Information at any time during or after Executive's employment with\nthe\nCardinal\nGroup,\nexcept\nwith\nprior\nwritten\nconsent\nof\nthe\napplicable\nCardinal\nGroup\ncompany,\nor\nas\notherwise\nrequired by law or legal process. All records, files, memoranda, reports, customer lists, drawings, plans, documents and\nthe like that Executive uses, prepares or comes into contact with during the course of Executive's employment shall\nremain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of Executive's employment.\n3.\nNon-Recruitment of Cardinal Group Employees,e Executive shall not, at any time during the\nRestricted Period (as defined in this Agreement), without the prior written consent of the Company, engage in the\nfollowing conduct (a "Solicitation"): (i) directly or indirectly, solicit, recruit or employ (whether as an employee, officer,\ndirector, agent, consultant or independent contractor) any person who is or was at any time during the previous twelve\nmonths an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease his or her relationship with the\nCardinal Group for any reason. A "Solicitation" does not include any recruitment of employees for the Cardinal Group.\nThe "Restricted Period" means the period from the date of this Agreement\nuntil twenty-four months after Executive's retirement date of August 21, 2015 specified in the Letter Agreement.\n4.\nNo Competition Solicitation of Business. During the Restricted Period, Executive shall not (as an\nofficer, agent, employee, partner, consultant or director of any other company, partnership or entity) be personally\ninvolved in direct or indirect solicitation on behalf of any competitor of the Cardinal Group of the business of (i) any\ncustomer of the Cardinal Group during the time of Executive's employment or at date of termination of employment or\n(ii) any potentia customer of the Cardinal Group which Executive knew to be an identified, prospective purchaser\nof\nservices or products of the Cardinal Group.\n5.\nNo Competition Employment by. Competitor. During the Restricted Period, Executive shall not invest\nin (other than in a publicly traded company with a maximum investment of no more than 1% of outstanding shares),\ncounsel, advise, or be otherwise engaged or employed by, any of the primary competitors of the Cardinal Group.\n6.\nAcknowledgement and Enforcement. Executive acknowledges and agrees that: (A) the purpose of the\nforegoing covenants, including without limitation the noncompetition covenants of Sections 4 and 5, is to protect the\ngoodwill, trade secrets and other Confidential Information of the Company; (B) because of the nature of the business in\nwhich\nthe\nCardinal\nGroup\nis\nengaged\nand\nbecause\nof\nthe\nnature\nof\nthe\nConfidential\nInformation\nto\nwhich\nExecutive\nhas\naccess, the Company would suffer irreparable harm and it would be impractical and excessively difficult to determine\nthe actual damages of the Cardinal Group in the event Executive breached any of the covenants of this Agreement; and\n(C) remedies at law (such as monetary damages) for any breach of Executive's obligations under this Agreement would\nbe inadequate. Executive therefore agrees and consents that if Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of,\nany other right or remedy that may be available to it) to temporary and permanent injunctive relief from a court\nof\ncompetent jurisdiction, without posting any bond or other security and without the necessity of proof of actual damage.\n7.\nMiscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of\nOhio, without reference to principles of conflict of laws. If, under any such law, any portion of this Agreement is at any\ntime deemed to be in conflict with any applicable statute, rule, regulation or ordinance, such portion shall be deemed to\nbe\nmodified\nor\naltered\nto\nconform\nthereto.\nThe\nparties\nhereto\nirrevocably\nagree\nto\nsubmit\nto\nthe\njurisdiction\nand\nvenue\nof\nthe courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this Agreement.\nThe captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement\nmay not be amended or modified otherwise than by a written agreement executed by the parties hereto or their\nrespective successors and legal representatives.\n(b) All notices and other communications under this Agreement shall be in writing and shall be given by\nhand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed\nas follows:\nIf to the Executive: At the most recent address on file for Executive at the Company.\nIf to the Company:\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: General Counsel\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and\ncommunications shall be effective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement. If any provision of this Agreement shall be held invalid or\nunenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall\nremain valid and enforceable and continue in full force and effect to the fullest extent consistent with the law.\n(d) Executive's or the Company's failure to insist upon strict compliance with any provision of this\nAgreement or the failure to assert any right Executive or the Company may have hereunder, shall not be deemed to be\na waiver of such provision or right or any other provision or right of this Agreement.\nIN WITNESS WHEREOF, Executive has hereunto set Executive's hand and the Company has caused these presents\nto be executed in its name and on its behalf, all as of the day and year first above written.\nIs/ Jeffrey W. Henderson\nJeffrey W. Henderson.\nExecution Date: June 10, 2014\nCARDINAL HEALTH, INC.\n/s/ Carole Watkins\nBy: Carole Watkins\nIts: Chief Human Resources Officer\nExecution Date: June 10, 2014	EX-10 .2 3 exhibit102-confidentiality.htm EXHIBIT\nExhibit 10.2\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between\nJeffrey W. Henderson (“Executive”) and Cardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of June\n10, 2014.\nIt is hereby agreed as follows:\n1.\nConsideration and Acknowledgements. The parties acknowledge that the provisions and covenants\ncontained in this Agreement are ancillary and material to, and in consideration of, the letter agreement concerning\nExecutive’s retirement dated June 10, 2014 (the “Letter Agreement”) and that the limitations contained herein are\nreasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company.\n2.\nConfidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company\nand all of its subsidiaries, partnerships, joint ventures, limited liability companies, and other affiliates (collectively, the\n"Cardinal Group"), all secret or confidential information, knowledge or data relating to the Cardinal Group and its\nbusinesses (including, without limitation, any proprietary and not publicly available information concerning any\nprocesses, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that\nExecutive has obtained or obtains during the Executive's employment by the Cardinal Group and that is not public\nknowledge (other than as a result of the Executive's violation of this Agreement) ("Confidential Information"). For the\npurposes of this Agreement, information shall not be deemed to be publicly available merely because it is embraced by\ngeneral disclosures or because individual features or combinations thereof are publicly available. Executive shall not\ncommunicate, divulge or disseminate Confidential Information at any time during or after Executive's employment with\nthe Cardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise\nrequired by law or legal process. All records, files, memoranda, reports, customer lists, drawings, plans, documents and\nthe like that Executive uses, prepares or comes into contact with during the course of Executive's employment shall\nremain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of Executive's employment.\n3.\nNon-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the\nRestricted Period (as defined in this Agreement), without the prior written consent of the Company, engage in the\nfollowing conduct (a "Solicitation"): (i) directly or indirectly, solicit, recruit or employ (whether as an employee, officer,\ndirector, agent, consultant or independent contractor) any person who is or was at any time during the previous twelve\nmonths an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease his or her relationship with the\nCardinal Group for any reason. A "Solicitation" does not include any recruitment of employees for the Cardinal Group.\nThe "Restricted Period" means the period from the date of this Agreement\nuntil twenty-four months after Executive’s retirement date of August 21, 2015 specified in the Letter Agreement.\n4.\nNo Competition -- Solicitation of Business. During the Restricted Period, Executive shall not (as an\nofficer, agent, employee, partner, consultant or director of any other company, partnership or entity) be personally\ninvolved in direct or indirect solicitation on behalf of any competitor of the Cardinal Group of the business of (i) any\ncustomer of the Cardinal Group during the time of Executive's employment or at date of termination of employment or\n(ii) any potential customer of the Cardinal Group which Executive knew to be an identified, prospective purchaser of\nservices or products of the Cardinal Group.\n5.\nNo Competition -- Employment by Competitor. During the Restricted Period, Executive shall not invest\nin (other than in a publicly traded company with a maximum investment of no more than 1% of outstanding shares),\ncounsel, advise, or be otherwise engaged or employed by, any of the primary competitors of the Cardinal Group.\n6.\nAcknowledgement and Enforcement. Executive acknowledges and agrees that: (A) the purpose of the\nforegoing covenants, including without limitation the noncompetition covenants of Sections 4 and 5, is to protect the\ngoodwill, trade secrets and other Confidential Information of the Company; (B) because of the nature of the business in\nwhich the Cardinal Group is engaged and because of the nature of the Confidential Information to which Executive has\naccess, the Company would suffer irreparable harm and it would be impractical and excessively difficult to determine\nthe actual damages of the Cardinal Group in the event Executive breached any of the covenants of this Agreement; and\n(C) remedies at law (such as monetary damages) for any breach of Executive's obligations under this Agreement would\nbe inadequate. Executive therefore agrees and consents that if Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of,\nany other right or remedy that may be available to it) to temporary and permanent injunctive relief from a court of\ncompetent jurisdiction, without posting any bond or other security and without the necessity of proof of actual damage.\n7.\nMiscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of\nOhio, without reference to principles of conflict of laws. If, under any such law, any portion of this Agreement is at any\ntime deemed to be in conflict with any applicable statute, rule, regulation or ordinance, such portion shall be deemed to\nbe modified or altered to conform thereto. The parties hereto irrevocably agree to submit to the jurisdiction and venue of\nthe courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this Agreement.\nThe captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement\nmay not be amended or modified otherwise than by a written agreement executed by the parties hereto or their\nrespective successors and legal representatives.\n(b) All notices and other communications under this Agreement shall be in writing and shall be given by\nhand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed\nas follows:\nIf to the Executive: At the most recent address on file for Executive at the Company.\nIf to the Company: Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: General Counsel\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and\ncommunications shall be effective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement. If any provision of this Agreement shall be held invalid or\nunenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall\nremain valid and enforceable and continue in full force and effect to the fullest extent consistent with the law.\n(d) Executive's or the Company's failure to insist upon strict compliance with any provision of this\nAgreement or the failure to assert any right Executive or the Company may have hereunder, shall not be deemed to be\na waiver of such provision or right or any other provision or right of this Agreement.\nIN WITNESS WHEREOF, Executive has hereunto set Executive's hand and the Company has caused these presents\nto be executed in its name and on its behalf, all as of the day and year first above written.\n_/s/ Jeffrey W. Henderson_________________\nJeffrey W. Henderson.\nExecution Date: June 10, 2014\nCARDINAL HEALTH, INC.\n_/s/ Carole Watkins__________________\nBy: Carole Watkins\nIts: Chief Human Resources Officer\nExecution Date: June 10, 2014
79b6066281288c2d1c2403fedab7a893.pdf	effective_date jurisdiction party term	EX-10.16 26 dex1016.htm FORM OF CONFIDENTIALITY & NON-COMPETITION AGREEMENT\nEXHIBIT 10.16\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT dated\nbetween Florists’ Transworld Delivery Inc. (the “Company”)\nand\n(the “Executive”).\nIn consideration of the obligations of the Company and the consideration to be received by the Company pursuant to the Employment\nAgreement, dated as of the date hereof (the “Employment Agreement”) between the Company and the Executive, the Company and the Executive\nagree as follows:\nSection 1. Secrecy, Non-Competition, No Interference and Non-Solicitation.\n(a) No Competing Employment. The Executive acknowledges that (i) the agreements and covenants contained in this Section 1 are\nessential to protect the value of the Company’s business and assets and (ii) by virtue of his employment with the Company, the Executive will obtain\nsuch knowledge, know-how, training and experience of such a character that there is a substantial probability that such knowledge, know-how,\ntraining and experience could be used to the substantial advantage of a competitor of the Company and to the Company’s substantial detriment.\nTherefore, the Executive agrees that, for the period (the “Restricted Period”) commencing on the date of this Agreement and ending on the date that\nis one year after the termination of the Executive’s employment under the Employment Agreement for any reason, the Executive shall not\nparticipate, operate, manage, consult, join, control or engage, directly or indirectly, for himself or on behalf of or in conjunction with any person,\npartnership, corporation or other entity, whether as an employee, consultant, agent, officer, stockholder, member, investor, agent or otherwise, in any\nbusiness activity if such activity constitutes the sale or provision of floral products or services that are similar to, or competitive with, floral products\nor services then being sold or provided by the Company or any of its subsidiaries or affiliated companies, including, without limitation, retail\nflorists’ business services, floral order transmission and related network services, development and distribution of branded floral products on the\nInternet or other consumer direct segment of the floral industry (including, without limitation, Interflora, Inc., Teleflora Inc., 1-800-\nFLOWERS.COM, Inc., PC Flowers & Gifts.com Inc.,(a “Competitive Activity”), in any of: the City of Downers Grove, Illinois, the County of\nDuPage, Illinois or any other city or county in the State of Illinois; the District of Columbia or any other state, territory, district or commonwealth of\nthe United States or any county, parish, city or similar political subdivision in any other state, territory, district or commonwealth of the United\nStates; any other country or territory anywhere in the world or in any city, canton, county, district, parish, province or any other political subdivision\nin any such country or territory; or anywhere in the world (each city, canton, commonwealth, county, district, parish, province, state, country,\nterritory or other political subdivision or other location in the world shall be referred to as a “Non-competition Area”). The parties to this Agreement\nintend that the covenant contained in the preceding sentence of this Section 1(a) shall be construed as a series of separate covenants, one for each\ncity, canton, commonwealth, county, district, parish, state, province, country, territory, or other political subdivision or other area of the world\nspecified. Except for geographic coverage, each separate covenant shall be considered identical in terms to the covenant contained in the preceding\nsentence. The parties further acknowledge the breadth of the covenants, but agree that such broad covenants are necessary and appropriate in the\nlight of the global nature of the Competitive Activity. If, in any judicial or other\nproceeding, a court or other body declines to enforce any of the separate covenants included in this Section 1(a), the unenforceable covenant shall be\nconsidered eliminated from these provisions for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants\nto be enforced. Notwithstanding the foregoing, the Executive may maintain or undertake purely passive investments on behalf of himself, his\nimmediate family or any trust on behalf of himself or his immediate family in companies engaged in a Competitive Activity so long as the aggregate\ninterest represented by such investments does not exceed 1% of any class of the outstanding publicly traded debt or equity securities of any company\nengaged in a Competitive Activity.\n(b) Nondisclosure of Confidential Information. The Executive, except in connection with his employment hereunder, shall not disclose to\nany person or entity or use, either during his employment with the Company or at any time thereafter, any information not in the public domain, in\nany form, acquired by the Executive while employed by the Company or, if acquired following his employment with the Company, such information\nthat, to the Executive’s knowledge, has been acquired, directly or indirectly, from any person or entity owing a duty of confidentiality to the\nCompany or any of its affiliates, relating to the Company, FTD, Inc., a Delaware corporation and the direct parent corporation of the Company\n(“FTDI”), or any of its or their subsidiaries or affiliated companies, including but not limited to trade secrets, technical information, systems,\nprocedures, test data, price lists, financial or other data (including the revenues, costs or profits associated with any of the Company’s products),\nbusiness and product plans, code books, invoices and other financial statements, computer programs, discs and printouts, customer and supplier lists\nor names, personnel files, sales and advertising material, telephone numbers, names, addresses or any other compilation of information, written or\nunwritten, that is or was used in the business of the Company, FTDI, any predecessor of the Company, FTDI or any of the Company’s, or FTDI’s\nsubsidiaries. The Executive agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain\nthe sole and exclusive property of the Company, and upon termination of his employment with the Company, the Executive shall return to the\nCompany the originals and all copies (and shall delete all such items in electronic format) of any such information provided to or acquired by the\nExecutive in connection with the performance of his duties for the Company, and shall return to the Company all files, correspondence or other\ncommunications (including any such materials in electronic format) received, maintained or originated by the Executive during the course of his\nemployment.\n(c) No Interference and Non-Solicitation. During the Restricted Period, the Executive shall not, whether for his own account or for the\naccount of any other individual, partnership, firm, corporation or other business organization (other than the Company), solicit, endeavor to entice\naway from the Company, FTDI, or any of the Company’s or FTDI’s subsidiaries, or otherwise interfere with the relationship of the Company or any\nof its subsidiaries or affiliated companies with, any person who, to the knowledge of the Executive, is (or has at any time within the preceding three\nmonths been) employed by or otherwise engaged to perform services for the Company, FTDI or any of the Company’s or FTDI’s subsidiaries\n(including, but not limited to, any independent sales representatives or organizations) or any entity who is, or was within the then most recent 12-\nmonth period, a customer or client of the Company, FTDI, any predecessor of the Company or FTDI or any of the Company’s or FTDI’s subsidiaries\n(a “Customer”); provided, however, that this Section 1(c) shall not prohibit the\n2\nExecutive from employing, for his own account, following a termination of the employment of the Executive, any person employed by a Customer\nor supplier, if such employment is not in connection with a Competitive Activity.\nSection 2. Calculation of Time Period. The Executive agrees that if the Executive violates the provisions of Section 1(a) of this Agreement, the\nrunning of the Restricted Period shall be tolled for the period in which the Executive is in violation of such non-competition provisions. The\nExecutive understands that the foregoing restrictions may limit the Executive’s ability to earn a livelihood in a business engaged in a Competitive\nActivity, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an\nemployee of the Company and as otherwise provided under the Employment Agreement to clearly justify restrictions that, in any event, given his\neducation, skills and ability, the Executive does not believe would prevent the Executive from earning a living.\nSection 3. Irreparable Injury. It is further expressly agreed that the Company will or would suffer irreparable injury if the Executive were to\ncompete with the Company, FTDI or any of its or their subsidiaries or affiliated companies in violation of this Agreement and that the Company\nwould by reason of such competition be entitled to injunctive relief in a court of appropriate jurisdiction, and the Executive further consents and\nstipulates to the entry of such injunctive relief in such a court prohibiting the Executive from competing with the Company or FTDI or any of its or\ntheir subsidiaries or affiliated companies in violation of this Agreement.\nSection 4. Representation and Warranties of the Executive. The Executive represents and warrants that the execution of this Agreement and\nsubsequent employment with the Company does not and will not conflict with any obligations and the Executive has to any former employers or any\nother entity. The Executive further represents and warrants that he has not brought to the Company, and will not at any time bring to the Company,\nany materials, documents or other property of any nature of a former employer.\nSection 5. Miscellaneous.\n(a) Jurisdiction, Choice of Law and Venue. The validity and construction of this Agreement shall be governed by the internal laws of the\nState of Illinois, excluding the conflicts-of-laws principles thereof. Each party hereto consents to the jurisdiction of, and venue in, any federal or state\ncourt of competent jurisdiction located in the City of Chicago.\n(b) Entire Agreement. This Agreement and any other agreement or document delivered in connection with this Agreement, including the\nEmployment Agreement and the Restricted Shares Agreement, dated as of the date hereof, between the Company and the Executive, state the entire\nagreement and understanding of the parties on the subject matter of this Agreement, and supersede all previous agreements, arrangements,\ncommunications and understandings relating to that subject matter.\n(c) Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be deemed an original, with the same\neffect as if all signatures were on the same document.\n3\n(d) Amendment; Wavier; etc. This Agreement, and each other agreement or document delivered in connection with this Agreement, may\nbe amended, modified, superseded or canceled, and any of the terms thereof may be waived, only by a written document signed by each party to this\nAgreement or, in the case of waiver, by the party or parties waiving compliance. The delay or failure of any party at any time or times to exercise any\nright or require the performance of any duty under this Agreement or any other agreement or document delivered in connection with this Agreement\nshall in no way affect the right of that party at a later time to exercise that right or enforce that duty or any other right or duty. No waiver by any\nparty of any condition or of any breach of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed or\nconstrued to be a further or continuing waiver of any such condition or breach or of the breach of any other term of this Agreement. A single or\npartial exercise of any right shall not preclude any other or further exercise of the same right or of any other right. The rights and remedies provided\nby this Agreement shall be cumulative and not exclusive of each other or of any other rights or remedies provided by law.\n(e) Severability. If any provision of this Agreement or any other agreement or document delivered in connection with this Agreement, if\nany, is partially or completely invalid or unenforceable in any jurisdiction, then that provision shall be ineffective in that jurisdiction to the extent of\nits invalidity or unenforceability, but the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other\nprovision of this Agreement, all of which shall be construed and enforced as if that invalid or unenforceable provision were omitted, nor shall the\ninvalidity or unenforceability of that provision in one jurisdiction affect its validity or enforceability in any other jurisdiction. The Company and the\nExecutive agree that the period of time and the geographical area described in Section 1 are reasonable in view of the nature of the business in which\nthe Company is engaged and proposes to be engaged, and the Executive’s understanding of his prospective future employment opportunities.\nHowever, if the time period or the geographical area, or both, described in Section 1 should be judged unreasonable in any judicial proceeding, then\nthe period of time shall be reduced by that number of months and the geographical area shall be reduced by elimination of that portion, or both, as\nare deemed unreasonable, so that the restriction covenant of Section 1 may be enforced during the longest period of time and in the fullest\ngeographical area as is adjudged to be reasonable.\n(f) Arbitration.\n(i) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in\nChicago, Illinois in accordance with the commercial arbitration rules of the American Arbitration Association. Judgment upon the award\nrendered in the arbitration may be entered in any court having jurisdiction.\n(ii) Notwithstanding the clause (i) above, the Executive acknowledges and understands that the provisions of this Agreement are of\na special and unique nature, the loss of which cannot be accurately compensated for in damages by an action at law, and that the breach or\nthreatened breach of the provisions of this Agreement would cause the Company irreparable harm. In the event of a breach or threatened\nbreach by the Executive of the provisions of Section 1, the Company shall be entitled to seek to obtain a court-ordered injunction restraining\nthe Executive from the breach or threatened breach upon the terms and conditions as the court ordering the injunction may impose.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.\nFlorists’ Transworld Delivery Inc.\nBy:\nRobert L. Norton\nCEO and Chairman of the Board\n[Name of Executive]\n5	EX-10.16 26 dex1016.htm FORM OF CONFIDENTIALITY & NON-COMPETITION AGREEMENT\nEXHIBIT 10.16\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT dated between Florists’ Transworld Delivery Inc. (the “Company”)\nand (the “Executive™).\nIn consideration of the obligations of the Company and the consideration to be received by the Company pursuant to the Employment\nAgreement, dated as of the date hereof (the “Employment Agreement”) between the Company and the Executive, the Company and the Executive\nagree as follows:\nSection 1. Secrecy, Non-Competition, No Interference and Non-Solicitation.\n(a) No Competing Employment. The Executive acknowledges that (i) the agreements and covenants contained in this Section 1 are\nessential to protect the value of the Company’s business and assets and (ii) by virtue of his employment with the Company, the Executive will obtain\nsuch knowledge, know-how, training and experience of such a character that there is a substantial probability that such knowledge, know-how,\ntraining and experience could be used to the substantial advantage of a competitor of the Company and to the Company’s substantial detriment.\nTherefore, the Executive agrees that, for the period (the “Restricted Period”) commencing on the date of this Agreement and ending on the date that\nis one year after the termination of the Executive’s employment under the Employment Agreement for any reason, the Executive shall not\nparticipate, operate, manage, consult, join, control or engage, directly or indirectly, for himself or on behalf of or in conjunction with any person,\npartnership, corporation or other entity, whether as an employee, consultant, agent, officer, stockholder, member, investor, agent or otherwise, in any\nbusiness activity if such activity constitutes the sale or provision of floral products or services that are similar to, or competitive with, floral products\nor services then being sold or provided by the Company or any of its subsidiaries or affiliated companies, including, without limitation, retail\nflorists’ business services, floral order transmission and related network services, development and distribution of branded floral products on the\nInternet or other consumer direct segment of the floral industry (including, without limitation, Interflora, Inc., Teleflora Inc., 1-800-\nFLOWERS.COM, Inc., PC Flowers & Gifts.com Inc.,(a “Competitive Activity”), in any of: the City of Downers Grove, Illinois, the County of\nDuPage, Illinois or any other city or county in the State of Illinois; the District of Columbia or any other state, territory, district or commonwealth of\nthe United States or any county, parish, city or similar political subdivision in any other state, territory, district or commonwealth of the United\nStates; any other country or territory anywhere in the world or in any city, canton, county, district, parish, province or any other political subdivision\nin any such country or territory; or anywhere in the world (each city, canton, commonwealth, county, district, parish, province, state, country,\nterritory or other political subdivision or other location in the world shall be referred to as a “Non-competition Area”). The parties to this Agreement\nintend that the covenant contained in the preceding sentence of this Section 1(a) shall be construed as a series of separate covenants, one for each\ncity, canton, commonwealth, county, district, parish, state, province, country, territory, or other political subdivision or other area of the world\nspecified. Except for geographic coverage, each separate covenant shall be considered identical in terms to the covenant contained in the preceding\nsentence. The parties further acknowledge the breadth of the covenants, but agree that such broad covenants are necessary and appropriate in the\nlight of the global nature of the Competitive Activity. If, in any judicial or other\nproceeding, a court or other body declines to enforce any of the separate covenants included in this Section 1(a), the unenforceable covenant shall be\nconsidered eliminated from these provisions for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants\nto be enforced. Notwithstanding the foregoing, the Executive may maintain or undertake purely passive investments on behalf of himself, his\nimmediate family or any trust on behalf of himself or his immediate family in companies engaged in a Competitive Activity so long as the aggregate\ninterest represented by such investments does not exceed 1% of any class of the outstanding publicly traded debt or equity securities of any company\nengaged in a Competitive Activity.\n(b) Nondisclosure of Confidential Information. The Executive, except in connection with his employment hereunder, shall not disclose to\nany person or entity or use, either during his employment with the Company or at any time thereafter, any information not in the public domain, in\nany form, acquired by the Executive while employed by the Company or, if acquired following his employment with the Company, such information\nthat, to the Executive’s knowledge, has been acquired, directly or indirectly, from any person or entity owing a duty of confidentiality to the\nCompany or any of its affiliates, relating to the Company, FTD, Inc., a Delaware corporation and the direct parent corporation of the Company\n(“FTDI”), or any of its or their subsidiaries or affiliated companies, including but not limited to trade secrets, technical information, systems,\nprocedures, test data, price lists, financial or other data (including the revenues, costs or profits associated with any of the Company’s products),\nbusiness and product plans, code books, invoices and other financial statements, computer programs, discs and printouts, customer and supplier lists\nor names, personnel files, sales and advertising material, telephone numbers, names, addresses or any other compilation of information, written or\nunwritten, that is or was used in the business of the Company, FTDI, any predecessor of the Company, FTDI or any of the Company’s, or FTDI’s\nsubsidiaries. The Executive agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain\nthe sole and exclusive property of the Company, and upon termination of his employment with the Company, the Executive shall return to the\nCompany the originals and all copies (and shall delete all such items in electronic format) of any such information provided to or acquired by the\nExecutive in connection with the performance of his duties for the Company, and shall return to the Company all files, correspondence or other\ncommunications (including any such materials in electronic format) received, maintained or originated by the Executive during the course of his\nemployment.\n(c) No Interference and Non-Solicitation. During the Restricted Period, the Executive shall not, whether for his own account or for the\naccount of any other individual, partnership, firm, corporation or other business organization (other than the Company), solicit, endeavor to entice\naway from the Company, FTDI, or any of the Company’s or FTDI’s subsidiaries, or otherwise interfere with the relationship of the Company or any\nof its subsidiaries or affiliated companies with, any person who, to the knowledge of the Executive, is (or has at any time within the preceding three\nmonths been) employed by or otherwise engaged to perform services for the Company, FTDI or any of the Company’s or FTDI’s subsidiaries\n(including, but not limited to, any independent sales representatives or organizations) or any entity who is, or was within the then most recent 12-\nmonth period, a customer or client of the Company, FTDI, any predecessor of the Company or FTDI or any of the Company’s or FTDI’s subsidiaries\n(a “Customer”); provided, however, that this Section 1(c) shall not prohibit the\n2\nExecutive from employing, for his own account, following a termination of the employment of the Executive, any person employed by a Customer\nor supplier, if such employment is not in connection with a Competitive Activity.\nSection 2. Calculation of Time Period. The Executive agrees that if the Executive violates the provisions of Section 1(a) of this Agreement, the\nrunning of the Restricted Period shall be tolled for the period in which the Executive is in violation of such non-competition provisions. The\nExecutive understands that the foregoing restrictions may limit the Executive’s ability to earn a livelihood in a business engaged in a Competitive\nActivity, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an\nemployee of the Company and as otherwise provided under the Employment Agreement to clearly justify restrictions that, in any event, given his\neducation, skills and ability, the Executive does not believe would prevent the Executive from earning a living.\nSection 3. Irreparable Injury. It is further expressly agreed that the Company will or would suffer irreparable injury if the Executive were to\ncompete with the Company, FTDI or any of its or their subsidiaries or affiliated companies in violation of this Agreement and that the Company\nwould by reason of such competition be entitled to injunctive relief in a court of appropriate jurisdiction, and the Executive further consents and\nstipulates to the entry of such injunctive relief in such a court prohibiting the Executive from competing with the Company or FTDI or any of its or\ntheir subsidiaries or affiliated companies in violation of this Agreement.\nSection 4. Representation and Warranties of the Executive. The Executive represents and warrants that the execution of this Agreement and\nsubsequent employment with the Company does not and will not conflict with any obligations and the Executive has to any former employers or any\nother entity. The Executive further represents and warrants that he has not brought to the Company, and will not at any time bring to the Company,\nany materials, documents or other property of any nature of a former employer.\nSection 5. Miscellaneous.\n(a) Jurisdiction, Choice of Law and Venue. The validity and construction of this Agreement shall be governed by the internal laws of the\nState of Illinois, excluding the conflicts-of-laws principles thereof. Each party hereto consents to the jurisdiction of, and venue in, any federal or state\ncourt of competent jurisdiction located in the City of Chicago.\n(b) Entire Agreement. This Agreement and any other agreement or document delivered in connection with this Agreement, including the\nEmployment Agreement and the Restricted Shares Agreement, dated as of the date hereof, between the Company and the Executive, state the entire\nagreement and understanding of the parties on the subject matter of this Agreement, and supersede all previous agreements, arrangements,\ncommunications and understandings relating to that subject matter.\n(c) Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be deemed an original, with the same\neffect as if all signatures were on the same document.\n(d) Amendment; Wavier; etc. This Agreement, and each other agreement or document delivered in connection with this Agreement, may\nbe amended, modified, superseded or canceled, and any of the terms thereof may be waived, only by a written document signed by each party to this\nAgreement or, in the case of waiver, by the party or parties waiving compliance. The delay or failure of any party at any time or times to exercise any\nright or require the performance of any duty under this Agreement or any other agreement or document delivered in connection with this Agreement\nshall in no way affect the right of that party at a later time to exercise that right or enforce that duty or any other right or duty. No waiver by any\nparty of any condition or of any breach of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed or\nconstrued to be a further or continuing waiver of any such condition or breach or of the breach of any other term of this Agreement. A single or\npartial exercise of any right shall not preclude any other or further exercise of the same right or of any other right. The rights and remedies provided\nby this Agreement shall be cumulative and not exclusive of each other or of any other rights or remedies provided by law.\n(e) Severability. If any provision of this Agreement or any other agreement or document delivered in connection with this Agreement, if\nany, is partially or completely invalid or unenforceable in any jurisdiction, then that provision shall be ineffective in that jurisdiction to the extent of\nits invalidity or unenforceability, but the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other\nprovision of this Agreement, all of which shall be construed and enforced as if that invalid or unenforceable provision were omitted, nor shall the\ninvalidity or unenforceability of that provision in one jurisdiction affect its validity or enforceability in any other jurisdiction. The Company and the\nExecutive agree that the period of time and the geographical area described in Section 1 are reasonable in view of the nature of the business in which\nthe Company is engaged and proposes to be engaged, and the Executive’s understanding of his prospective future employment opportunities.\nHowever, if the time period or the geographical area, or both, described in Section 1 should be judged unreasonable in any judicial proceeding, then\nthe period of time shall be reduced by that number of months and the geographical area shall be reduced by elimination of that portion, or both, as\nare deemed unreasonable, so that the restriction covenant of Section 1 may be enforced during the longest period of time and in the fullest\ngeographical area as is adjudged to be reasonable.\n(f) Arbitration.\n(i) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in\nChicago, Illinois in accordance with the commercial arbitration rules of the American Arbitration Association. Judgment upon the award\nrendered in the arbitration may be entered in any court having jurisdiction.\n(ii) Notwithstanding the clause (i) above, the Executive acknowledges and understands that the provisions of this Agreement are of\na special and unique nature, the loss of which cannot be accurately compensated for in damages by an action at law, and that the breach or\nthreatened breach of the provisions of this Agreement would cause the Company irreparable harm. In the event of a breach or threatened\nbreach by the Executive of the provisions of Section 1, the Company shall be entitled to seek to obtain a court-ordered injunction restraining\nthe Executive from the breach or threatened breach upon the terms and conditions as the court ordering the injunction may impose.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.\nFlorists’ Transworld Delivery Inc.\nBy:\nRobert L. Norton\nCEO and Chairman of the Board\n[Name of Executive]	EX-10.16 26 dex 1016.htm FORM OF CONFIDENTIALITY & NON-COMPETITION AGREEMENT\nEXHIBIT 10.16\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT dated\nbetween Florists' Transworld Delivery Inc. (the "Company")\nand\n(the "Executive").\nIn consideration of the obligations of the Company and the consideration to be received by the Company pursuant to the Employment\nAgreement, dated as of the date hereof (the "Employment Agreement") between the Company and the Executive, the Company and the Executive\nagree as follows:\nSection 1. Secrecy, Non-Competition, No Interference and Non-Solicitation.\n(a) No Competing Employment. The Executive acknowledges that (i) the agreements and covenants contained in this Section 1 are\nessential to protect the value of the Company's business and assets and (ii) by virtue of his employment with the Company, the Executive will obtain\nsuch knowledge, know-how, training and experience of such a character that there is a substantial probability that such knowledge, know-how,\ntraining and experience could be used to the substantial advantage of a competitor of the Company and to the Company's substantial detriment.\nTherefore, the Executive agrees that, for the period (the "Restricted Period") commencing on the date of this Agreement and ending on the date that\nis one year after the termination of the Executive's employment under the Employment Agreement for any reason, the Executive shall not\nparticipate, operate, manage consult, join, control or engage, directly or indirectly, for himself or on behalf of or in conjunction with any person\npartnership, corporation or other entity, whether as an employee, consultant, agent, officer, stockholder, member, investor, agent or otherwise, in any\nbusiness activity if such activity constitutes the sale or provision of floral products or services that are similar to, or competitive with, floral products\nor\nservices then being sold or provided by the Company or any of its subsidiaries or affiliated companies, including, without limitation, retail\nflorists business services, floral order transmission and related network services, development and distribution of branded floral products on the\nInternet or other consumer direct segment of the floral industry (including, without limitation, Interflora, Inc., Teleflora Inc., 1-800-\nFLOWERS.COM, Inc., PC Flowers & Gifts.com Inc.,(a "Competitive Activity"), in any of: the City of Downers Grove, Illinois, the County of\nDuPage, Illinois or any other city or county in the State of Illinois; the District of Columbia or any other state, territory, district or commonwealth\nof\nthe United States or any county, parish, city or similar political subdivision in any other state, territory, district or commonwealth of the United\nStates; any other country or territory anywhere in the world or in any city, canton, county, district, parish, province or any other political subdivision\nin any such country or territory; or anywhere in the world (each city, canton, commonwealth, county, district, parish, province, state, country,\nterritory or other political subdivision or other location in the world shall be referred to as a "Non-competition Area"). The parties to this Agreement\nintend that the covenant contained in the preceding sentence of this Section 1(a) shall be construed as a series of separate covenants, one for each\ncity, canton, commonwealth, county, district, parish, state, province, country, territory, or other political subdivision or other area of the world\nspecified. Except for geographic coverage, each separate covenant shall be considered identical in terms to the covenant contained in the preceding\nsentence. The parties further acknowledge the breadth of the covenants, but agree that such broad covenants are necessary and appropriate in\nthe\nlight of the global nature of the Competitive Activity. If, in any judicial or other\nproceeding, a court or other body declines to enforce any of the separate covenants included in this Section 1(a), the unenforceable covenant shall be\nconsidered eliminated from these provisions for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants\nto be enforced. Notwithstanding the foregoing, the Executive may maintain or undertake purely passive investments on behalf of himself, his\nimmediate family or any trust on behalf of himself or his immediate family in companies engaged in a Competitive Activity so long as the aggregate\ninterest represented by such investments does not exceed 1% of any class of the outstanding publicly traded debt or equity securities of any company\nengaged in a Competitive Activity.\n(b) Nondisclosure of Confidential Information. The Executive, except in connection with his employment hereunder, shall not disclose to\nany person or entity or use, either during his employment with the Company or at any time thereafter, any information not in the public domain,\nin\nany form, acquired by the Executive while employed by the Company or, if acquired following his employment with the Company, such information\nthat, to the Executive's knowledge, has been acquired, directly or indirectly, from any person or entity owing a duty of confidentiality to the\nCompany or any of its affiliates, relating to the Company, FTD, Inc., a Delaware corporation and the direct parent corporation of the Company\n("FTDI"), or any of its or their subsidiaries or affiliated companies, including but not limited to trade secrets, technical information, systems,\nprocedures, test data, price lists, financial or other data (including the revenues, costs or profits associated with any of the Company's products),\nbusiness and product plans, code books, invoices and other financial statements, computer programs, discs and printouts, customer and supplier lists\nor names, personnel files, sales and advertising material, telephone numbers, names, addresses or any other compilation of information, written or\nunwritten, that is or was used in the business of the Company, FTDI, any predecessor of the Company, FTDI or any of the Company's, or FTDI's\nsubsidiaries. The Executive agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain\nthe sole and exclusive property of the Company, and upon termination of his employment with the Company, the Executive shall return to the\nCompany the originals and all copies (and shall delete all such items in electronic format) of any such information provided to or acquired by the\nExecutive in connection with the performance of his duties for the Company, and shall return to the Company all files, correspondence or other\ncommunications (including any such materials in electronic format) received, maintained or originated by the Executive during the course of his\nemployment.\n(c) No Interference and Non-Solicitation. During the Restricted Period, the Executive shall not, whether for his own account or for the\naccount of any other individual, partnership, firm, corporation or other business organization (other than the Company), solicit, endeavor to entice\naway from the Company, FTDI, or any of the Company's or FTDI's subsidiaries, or otherwise interfere with the relationship of the Company or any\nof its subsidiaries or affiliated companies with, any person who, to the knowledge of the Executive, is (or has at any time within the preceding three\nmonths been) employed by or otherwise engaged to perform services for the Company, FTDI or any of the Company's or FTDI's subsidiaries\n(including, but not limited to, any independent sales representatives or organizations) or any entity who is, or was within the then most recent 12-\nmonth period, a customer or client of the Company, FTDI, any predecessor of the Company or FTDI or any of the Company's or FTDI's subsidiaries\n(a "Customer"); provided, however, that this Section 1(c) shall not prohibit the\n2\nExecutive from employing, for his own account, following a termination of the employment of the Executive, any person employed by a Customer\nor supplier, if such employment is not in connection with a Competitive Activity.\nSection 2. Calculation of Time Period. The Executive agrees that if the Executive violates the provisions of Section 1(a) of this Agreement, the\nrunning of the Restricted Period shall be tolled for the period in which the Executive is in violation of such non-competition provisions. The\nExecutive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business engaged in a Competitive\nActivity, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an\nemployee of the Company and as otherwise provided under the Employment Agreement to clearly justify restrictions that, in any event, given his\neducation, skills and ability, the Executive does not believe would prevent the Executive from earning a living.\nSection 3. Irreparable Injury. It is further expressly agreed that the Company will or would suffer irreparable injury if the Executive were to\ncompete with the Company, FTDI or any of its or their subsidiaries or affiliated companies in violation of this Agreement and that the Company\nwould by reason of such competition be entitled to injunctive relief in a court of appropriate jurisdiction, and the Executive further consents and\nstipulates to the entry of such injunctive relief in such a court prohibiting the Executive from competing with the Company or FTDI or any of its\nor\ntheir subsidiaries or affiliated companies in violation of this Agreement.\nSection 4. Representation and Warranties of the Executive. The Executive represents and warrants that the execution of this Agreement and\nsubsequent employment with the Company does not and will not conflict with any obligations and the Executive has to any former employers or any\nother entity. The Executive further represents and warrants that he has not brought to the Company, and will not at any time bring to the Company,\nany materials, documents or other property of any nature of a former employer.\nSection 5. Miscellaneous.\n(a) Jurisdiction, Choice of Law and Venue. The validity and construction of this Agreement shall be governed by the internal laws of the\nState of Illinois, excluding the conflicts-of-laws principles thereof. Each party hereto consents to the jurisdiction of, and venue in, any federal or state\ncourt of competent jurisdiction located in the City of Chicago.\n(b) Entire Agreement. This Agreement and any other agreement or document delivered in connection with this Agreement, including the\nEmployment Agreement and the Restricted Shares Agreement, dated as of the date hereof, between the Company and the Executive, state the entire\nagreement and understanding of the parties on the subject matter of this Agreement, and supersede all previous agreements, arrangements,\ncommunications and understandings relating to that subject matter.\n(c) Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be deemed an original, with the same\neffect as if all signatures were on the same document.\n3\n(d) Amendment; Wavier; etc. This Agreement, and each other agreement or document delivered in connection with this Agreement, may\nbe\namended, modified, superseded or canceled, and any of the terms thereof may be waived, only by a written document signed by each party to this\nAgreement or, in the case of waiver, by the party or parties waiving compliance. The delay or failure of any party at any time or times to exercise any\nright or require the performance of any duty under this Agreement or any other agreement or document delivered in connection with this Agreement\nshall in no way affect the right of that party at a later time to exercise that right or enforce that duty or any other right or duty. No waiver by any\nparty of any condition or of any breach of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed or\nconstrued to be a further or continuing waiver of any such condition or breach or of the breach of any other term of this Agreement. A single or\npartial exercise of any right shall not preclude any other or further exercise of the same right or of any other right. The rights and remedies provided\nby this Agreement shall be cumulative and not exclusive of each other or of any other rights or remedies provided by law.\n(e) Severability.. If any provision of this Agreement or any other agreement or document delivered in connection with this Agreement, if\nany, is partially or completely invalid or unenforceable in any jurisdiction, then that provision shall be ineffective in that jurisdiction to the extent of\nits invalidity or unenforceability, but the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other\nprovision of this Agreement, all of which shall be construed and enforced as if that invalid or unenforceable provision were omitted, nor shall the\ninvalidity or unenforceability of that provision in one jurisdiction affect its validity or enforceability in any other jurisdiction. The Company and\nthe\nExecutive agree that the period of time and the geographical area described in Section 1 are reasonable in view of the nature of the business in which\nthe Company is engaged and proposes to be engaged, and the Executive's understanding of his prospective future employment opportunities.\nHowever, if the time period or the geographical area, or both, described in Section 1 should be judged unreasonable in any judicial proceeding, then\nthe period of time shall be reduced by that number of months and the geographical area shall be reduced by elimination of that portion, or both, as\nare deemed unreasonable, so that the restriction covenant of Section 1 may be enforced during the longest period of time and in the fullest\ngeographical area as is adjudged to be reasonable.\n(f) Arbitration.\n(i) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration\nin\nChicago, Illinois in accordance with the commercial arbitration rules of the American Arbitration Association. Judgment upon the award\nrendered in the arbitration may be entered in any court having jurisdiction.\n(ii) Notwithstanding the clause (i) above, the Executive acknowledges and understands that the provisions of this Agreement are of\na special and unique nature, the loss of which cannot be accurately compensated for in damages by an action at law, and that the breach or\nthreatened breach of the provisions of this Agreement would cause the Company irreparable harm. In the event of a breach or threatened\nbreach by the Executive of the provisions of Section 1, the Company shall be entitled to seek to obtain a court-ordered injunction restraining\nthe Executive from the breach or threatened breach upon the terms and conditions as the court ordering the injunction may impose.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.\nFlorists' Transworld Delivery Inc.\nBy:\nRobert L. Norton\nCEO and Chairman of the Board\n[Name of Executive]\n5	EX-10.16 26 dex1016.htm FORM OF CONFIDENTIALITY & NON-COMPETITION AGREEMENT\nEXHIBIT 10.16\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT dated\nbetween Florists’ Transworld Delivery Inc. (the “Company”)\nand\n(the “Executive”).\nIn consideration of the obligations of the Company and the consideration to be received by the Company pursuant to the Employment\nAgreement, dated as of the date hereof (the “Employment Agreement”) between the Company and the Executive, the Company and the Executive\nagree as follows:\nSection 1. Secrecy, Non-Competition, No Interference and Non-Solicitation.\n(a) No Competing Employment. The Executive acknowledges that (i) the agreements and covenants contained in this Section 1 are\nessential to protect the value of the Company’s business and assets and (ii) by virtue of his employment with the Company, the Executive will obtain\nsuch knowledge, know-how, training and experience of such a character that there is a substantial probability that such knowledge, know-how,\ntraining and experience could be used to the substantial advantage of a competitor of the Company and to the Company’s substantial detriment.\nTherefore, the Executive agrees that, for the period (the “Restricted Period”) commencing on the date of this Agreement and ending on the date that\nis one year after the termination of the Executive’s employment under the Employment Agreement for any reason, the Executive shall not\nparticipate, operate, manage, consult, join, control or engage, directly or indirectly, for himself or on behalf of or in conjunction with any person,\npartnership, corporation or other entity, whether as an employee, consultant, agent, officer, stockholder, member, investor, agent or otherwise, in any\nbusiness activity if such activity constitutes the sale or provision of floral products or services that are similar to, or competitive with, floral products\nor services then being sold or provided by the Company or any of its subsidiaries or affiliated companies, including, without limitation, retail\nflorists’ business services, floral order transmission and related network services, development and distribution of branded floral products on the\nInternet or other consumer direct segment of the floral industry (including, without limitation, Interflora, Inc., Teleflora Inc., 1-800-\nFLOWERS.COM, Inc., PC Flowers & Gifts.com Inc.,(a “Competitive Activity”), in any of: the City of Downers Grove, Illinois, the County of\nDuPage, Illinois or any other city or county in the State of Illinois; the District of Columbia or any other state, territory, district or commonwealth of\nthe United States or any county, parish, city or similar political subdivision in any other state, territory, district or commonwealth of the United\nStates; any other country or territory anywhere in the world or in any city, canton, county, district, parish, province or any other political subdivision\nin any such country or territory; or anywhere in the world (each city, canton, commonwealth, county, district, parish, province, state, country,\nterritory or other political subdivision or other location in the world shall be referred to as a “Non-competition Area”). The parties to this Agreement\nintend that the covenant contained in the preceding sentence of this Section 1(a) shall be construed as a series of separate covenants, one for each\ncity, canton, commonwealth, county, district, parish, state, province, country, territory, or other political subdivision or other area of the world\nspecified. Except for geographic coverage, each separate covenant shall be considered identical in terms to the covenant contained in the preceding\nsentence. The parties further acknowledge the breadth of the covenants, but agree that such broad covenants are necessary and appropriate in the\nlight of the global nature of the Competitive Activity. If, in any judicial or other\nproceeding, a court or other body declines to enforce any of the separate covenants included in this Section 1(a), the unenforceable covenant shall be\nconsidered eliminated from these provisions for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants\nto be enforced. Notwithstanding the foregoing, the Executive may maintain or undertake purely passive investments on behalf of himself, his\nimmediate family or any trust on behalf of himself or his immediate family in companies engaged in a Competitive Activity so long as the aggregate\ninterest represented by such investments does not exceed 1% of any class of the outstanding publicly traded debt or equity securities of any company\nengaged in a Competitive Activity.\n(b) Nondisclosure of Confidential Information. The Executive, except in connection with his employment hereunder, shall not disclose to\nany person or entity or use, either during his employment with the Company or at any time thereafter, any information not in the public domain, in\nany form, acquired by the Executive while employed by the Company or, if acquired following his employment with the Company, such information\nthat, to the Executive’s knowledge, has been acquired, directly or indirectly, from any person or entity owing a duty of confidentiality to the\nCompany or any of its affiliates, relating to the Company, FTD, Inc., a Delaware corporation and the direct parent corporation of the Company\n(“FTDI”), or any of its or their subsidiaries or affiliated companies, including but not limited to trade secrets, technical information, systems,\nprocedures, test data, price lists, financial or other data (including the revenues, costs or profits associated with any of the Company’s products),\nbusiness and product plans, code books, invoices and other financial statements, computer programs, discs and printouts, customer and supplier lists\nor names, personnel files, sales and advertising material, telephone numbers, names, addresses or any other compilation of information, written or\nunwritten, that is or was used in the business of the Company, FTDI, any predecessor of the Company, FTDI or any of the Company’s, or FTDI’s\nsubsidiaries. The Executive agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain\nthe sole and exclusive property of the Company, and upon termination of his employment with the Company, the Executive shall return to the\nCompany the originals and all copies (and shall delete all such items in electronic format) of any such information provided to or acquired by the\nExecutive in connection with the performance of his duties for the Company, and shall return to the Company all files, correspondence or other\ncommunications (including any such materials in electronic format) received, maintained or originated by the Executive during the course of his\nemployment.\n(c) No Interference and Non-Solicitation. During the Restricted Period, the Executive shall not, whether for his own account or for the\naccount of any other individual, partnership, firm, corporation or other business organization (other than the Company), solicit, endeavor to entice\naway from the Company, FTDI, or any of the Company’s or FTDI’s subsidiaries, or otherwise interfere with the relationship of the Company or any\nof its subsidiaries or affiliated companies with, any person who, to the knowledge of the Executive, is (or has at any time within the preceding three\nmonths been) employed by or otherwise engaged to perform services for the Company, FTDI or any of the Company’s or FTDI’s subsidiaries\n(including, but not limited to, any independent sales representatives or organizations) or any entity who is, or was within the then most recent 12-\nmonth period, a customer or client of the Company, FTDI, any predecessor of the Company or FTDI or any of the Company’s or FTDI’s subsidiaries\n(a “Customer”); provided, however, that this Section 1(c) shall not prohibit the\n2\nExecutive from employing, for his own account, following a termination of the employment of the Executive, any person employed by a Customer\nor supplier, if such employment is not in connection with a Competitive Activity.\nSection 2. Calculation of Time Period. The Executive agrees that if the Executive violates the provisions of Section 1(a) of this Agreement, the\nrunning of the Restricted Period shall be tolled for the period in which the Executive is in violation of such non-competition provisions. The\nExecutive understands that the foregoing restrictions may limit the Executive’s ability to earn a livelihood in a business engaged in a Competitive\nActivity, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an\nemployee of the Company and as otherwise provided under the Employment Agreement to clearly justify restrictions that, in any event, given his\neducation, skills and ability, the Executive does not believe would prevent the Executive from earning a living.\nSection 3. Irreparable Injury. It is further expressly agreed that the Company will or would suffer irreparable injury if the Executive were to\ncompete with the Company, FTDI or any of its or their subsidiaries or affiliated companies in violation of this Agreement and that the Company\nwould by reason of such competition be entitled to injunctive relief in a court of appropriate jurisdiction, and the Executive further consents and\nstipulates to the entry of such injunctive relief in such a court prohibiting the Executive from competing with the Company or FTDI or any of its or\ntheir subsidiaries or affiliated companies in violation of this Agreement.\nSection 4. Representation and Warranties of the Executive. The Executive represents and warrants that the execution of this Agreement and\nsubsequent employment with the Company does not and will not conflict with any obligations and the Executive has to any former employers or any\nother entity. The Executive further represents and warrants that he has not brought to the Company, and will not at any time bring to the Company,\nany materials, documents or other property of any nature of a former employer.\nSection 5. Miscellaneous.\n(a) Jurisdiction, Choice of Law and Venue. The validity and construction of this Agreement shall be governed by the internal laws of the\nState of Illinois, excluding the conflicts-of-laws principles thereof. Each party hereto consents to the jurisdiction of, and venue in, any federal or state\ncourt of competent jurisdiction located in the City of Chicago.\n(b) Entire Agreement. This Agreement and any other agreement or document delivered in connection with this Agreement, including the\nEmployment Agreement and the Restricted Shares Agreement, dated as of the date hereof, between the Company and the Executive, state the entire\nagreement and understanding of the parties on the subject matter of this Agreement, and supersede all previous agreements, arrangements,\ncommunications and understandings relating to that subject matter.\n(c) Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be deemed an original, with the same\neffect as if all signatures were on the same document.\n3\n(d) Amendment; Wavier; etc. This Agreement, and each other agreement or document delivered in connection with this Agreement, may\nbe amended, modified, superseded or canceled, and any of the terms thereof may be waived, only by a written document signed by each party to this\nAgreement or, in the case of waiver, by the party or parties waiving compliance. The delay or failure of any party at any time or times to exercise any\nright or require the performance of any duty under this Agreement or any other agreement or document delivered in connection with this Agreement\nshall in no way affect the right of that party at a later time to exercise that right or enforce that duty or any other right or duty. No waiver by any\nparty of any condition or of any breach of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed or\nconstrued to be a further or continuing waiver of any such condition or breach or of the breach of any other term of this Agreement. A single or\npartial exercise of any right shall not preclude any other or further exercise of the same right or of any other right. The rights and remedies provided\nby this Agreement shall be cumulative and not exclusive of each other or of any other rights or remedies provided by law.\n(e) Severability. If any provision of this Agreement or any other agreement or document delivered in connection with this Agreement, if\nany, is partially or completely invalid or unenforceable in any jurisdiction, then that provision shall be ineffective in that jurisdiction to the extent of\nits invalidity or unenforceability, but the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other\nprovision of this Agreement, all of which shall be construed and enforced as if that invalid or unenforceable provision were omitted, nor shall the\ninvalidity or unenforceability of that provision in one jurisdiction affect its validity or enforceability in any other jurisdiction. The Company and the\nExecutive agree that the period of time and the geographical area described in Section 1 are reasonable in view of the nature of the business in which\nthe Company is engaged and proposes to be engaged, and the Executive’s understanding of his prospective future employment opportunities.\nHowever, if the time period or the geographical area, or both, described in Section 1 should be judged unreasonable in any judicial proceeding, then\nthe period of time shall be reduced by that number of months and the geographical area shall be reduced by elimination of that portion, or both, as\nare deemed unreasonable, so that the restriction covenant of Section 1 may be enforced during the longest period of time and in the fullest\ngeographical area as is adjudged to be reasonable.\n(f) Arbitration.\n(i) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in\nChicago, Illinois in accordance with the commercial arbitration rules of the American Arbitration Association. Judgment upon the award\nrendered in the arbitration may be entered in any court having jurisdiction.\n(ii) Notwithstanding the clause (i) above, the Executive acknowledges and understands that the provisions of this Agreement are of\na special and unique nature, the loss of which cannot be accurately compensated for in damages by an action at law, and that the breach or\nthreatened breach of the provisions of this Agreement would cause the Company irreparable harm. In the event of a breach or threatened\nbreach by the Executive of the provisions of Section 1, the Company shall be entitled to seek to obtain a court-ordered injunction restraining\nthe Executive from the breach or threatened breach upon the terms and conditions as the court ordering the injunction may impose.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.\nFlorists’ Transworld Delivery Inc.\nBy:\nRobert L. Norton\nCEO and Chairman of the Board\n[Name of Executive]\n5
79d27022b351e5ac875ebdfce2965d1b.pdf	effective_date jurisdiction party term	EX-10.20 2 jcg-ex1020_20150131101.htm EX-10.20\nExhibit 10.20\nNON-DISCLOSURE, NON-SOLICITATION, NON-COMPETITION AND DISPUTE RESOLUTION AGREEMENT\nIn consideration of your continued employment as SVP – Chief Accounting Officer with J. Crew Group, Inc. and its affiliates\n(collectively, the "Company") and for other good and valuable consideration, receipt of which is hereby acknowledged, effective as of January\n22, 2013, you and the Company agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the\nCompany, you have and will have acquired and have had access to confidential or proprietary information about the Company, including but not\nlimited to, trade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs,\nagreements and/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative\npolicies, practices, concepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines,\nfuture merchandise designs, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee\nlists, training manuals, financial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible\nmergers, acquisitions or joint ventures and information about or received from vendors and other companies with which the Company does\nbusiness. The foregoing shall be collectively referred to as “Confidential Information.” You are aware that the Confidential Information is not\nreadily available to the public. You agree that during your employment or provision of services and for a period of three (3) years thereafter, you\nwill keep confidential and not disclose the Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in\nperforming your duties as our employee or agent. You agree that this restriction shall apply whether or not any such information is marked\n“confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”)\ncompiled by you or made available to you during your employment (whether or not the material contains confidential information) are the\nproperty of the Company and shall be delivered to the Company on the termination of your employment or at any other time upon\nrequest. Except in connection with your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to\nrequire the performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a\nposition of confidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires\nthe disclosure of confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering\nof services to the Company, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the\nCompany and knowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the\ngoodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that:\n(a) while you are in the Company’s employ and for the period of six months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company, render services to or accept employment, either directly\nas an employee or owner, or indirectly, as a paid or unpaid consultant or independent contractor of any entity identified on Schedule A hereto (as\nmay be updated by the Company and communicated to you from time to time); and\n(b) while you are in the Company’s employ and for the period of twelve months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company recruit, hire, solicit, or employ as an employee or retain\nas a consultant any person who is then or at any time during the preceding twelve months was an employee of or consultant to the Company, or\npersuade or attempt to persuade any employee of or consultant to the Company to leave the employ of the Company or to become employed as\nan employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause. Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b)\nthe Company does not consent at your written request to waive any of the post-employment restrictions contained in Section 2(a) above, and (c)\nyou execute and deliver to Company an irrevocable Separation Agreement and Release, within 60 days after your termination of employment\n(and any payment that constitutes non-qualified deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended\nand any regulations thereunder (the “Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at\nthe expiration of such 60-day period), in a form acceptable to the Company, the Company will (i) pay you a lump sum amount equal to the\nproduct of (x) the annual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in\nthe fiscal year which includes the date of your termination of employment had your employment not been terminated and (y) a fraction, the\nnumerator of which is the number of days in the fiscal year that includes the date of your termination through the date of such termination and\nthe denominator of which is 365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15th day\nof the third month following the end of the year with respect to which such bonus was earned; (ii) continue to pay your then-current base salary,\nless all\napplicable deductions, according to the company’s normal payroll practices for six (6) months immediately following your last date of\nemployment (“Termination Date”) (collectively, the “Salary Continuation Payments”); and (iii) reimburse you for out-of-pocket COBRA\npayments paid by you to continue your group health benefits for such six-month period, provided you submit relevant supporting documentation to\nthe company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments\nshall terminate effective immediately and be of no force and effect upon the date that you become employed or are retained by another entity as\nan employee, consultant or otherwise, with or without compensation, and you agree to notify the Executive Vice-President of Human Resources\nin writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources, (a) you\nwill forfeit your right to receive the payments described above (to the extent the payments were not theretofore paid) and (b) the company shall\nbe entitled to recover any payments already made to you or on your behalf.\nNotwithstanding the foregoing, in the event you are a “specified employee” (within the meaning of Section 409A(2)(B) of the Internal\nRevenue Code of 1986, as amended (the “Code”)) on the Termination Date and the Salary Continuation Payments to be paid to you within the\nfirst six months following such date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)\n(the “Limit”), then: (i) any portion of the Salary Continuation Payments that is payable during the Initial Payment Period that does not exceed the\nLimit shall be paid at the times set forth above; (ii) any portion of the Salary Continuation Payments that is a “short-term deferral” within the\nmeaning of Treas. Regs. Section 1.409A-1(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation\nPayments that exceeds the Limit and is not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the\nLimit) shall be paid on the first business day of the first calendar month that begins after the six-month anniversary of the Termination Date or, if\nearlier, on the date of your death; and (iv) any portion of the Salary Continuation Payments that is payable after the Initial Payment Period shall\nbe paid at the times set forth above. It is intended that each installment, if any, of the payments and benefits, if any, provided to you under this\nSection 3 shall be treated as a separate “payment” for purposes of Section 409A of the Code.\n“Cause” shall mean gross incompetence; failure to comply with the company’s policies including, but not limited to, those contained in the\ncompany’s Associate Handbook or Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving\ndishonesty or moral turpitude; falsification of employment applications, records, or any work product for the Company; participation in any act\nof misconduct, insubordination or fraud against the company; use of alcohol or drugs which interferes with your performance of your duties or\ncompromises the integrity or reputation of the company; and unauthorized absence from work other than as a result of disability. No payment\nwill be required if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in Section\n2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n"Cause," as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the\nTermination Date. In the event of termination for Cause or your resignation, the Company will not pay any severance or Salary Continuation\nPayments, and the restrictions contained in Sections 1 and 2 above will remain in full force and effect unless waived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on\nthe third anniversary of such date; provided however, that it shall automatically renew for further terms of one (1) year each upon the same terms\nand conditions herein, unless the Company provides written notice of non-renewal to you at least 30 days prior to the expiration of the initial\nterm or any renewal term.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the expiration of any term, you shall remain subject\nto the post-termination restrictions contained in Sections 1 and 2 hereof and Section 6 hereof and shall be entitled to the severance payment\ncontained in Section 3 hereof provided that the terms and conditions applicable thereto have been satisfied.\n6. Dispute Resolution and Arbitration\n(a) Any and all justiciable controversies, claims or disputes that you may have against the Company and/or the Company may have against\nyou arising out of, relating to, or resulting from your employment with the Company, or the separation of your employment with the Company,\nincluding claims arising out of or related to this Agreement, shall be subject to mandatory arbitration (“Mandatory Arbitration”) as set forth\nherein. The mutual obligations by the Company and you to arbitrate differences provide mutual consideration for this Mandatory Arbitration\nprovision. Prior to commencing arbitration, if any such matter cannot be settled through negotiation, then the parties agree first to try in good\nfaith to settle the dispute by mediation through a mediator selected by the mutual agreement of both parties. If any such matters cannot be\nresolved by mediation within 30 days of the Company or you requesting mediation (or such longer period as to which you and the Company\nagree in writing), they shall be finally resolved by final and binding arbitration. The parties shall select a neutral arbitrator and/or arbitration\nsponsoring organization by mutual agreement. If the parties are not able to mutually agree to an arbitrator and/or arbitration sponsoring\norganization, the arbitration will be held under the auspices of the American Arbitration Association (“AAA”), and except as otherwise provided\nin this Agreement, shall be in\n2\naccordance with the then current Employment Arbitration Rules of the AAA, which may be found at www.adr.org or by using an internet search\nengine to locate “AAA Employment Arbitration Rules”). The arbitrator, and not any federal, state or local court or agency, shall have the\nexclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Mandatory Arbitration\nprovision. Subject to remedies to which a party to the arbitration may be entitled under applicable law, each party shall pay the fees of its own\nattorneys, the expenses of its witnesses and all other expenses connected with presenting its case. Other costs of the arbitration, including the\ncost of any record or transcripts of the arbitration, administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne by the\nCompany. All arbitral awards shall be final and binding, and the arbitration will be conducted in the City of New York, New York, in accordance\nwith the Federal Arbitration Act (9 U.S .C . §§ 1 et seq.) . A judgment of a court of competent jurisdiction shall be entered upon the award made\npursuant to the arbitration.\n(b) You agree that any actual or threatened breach by you of the covenants set forth in Sections 1 and 2 of this agreement would result in\nirreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, without limiting Section 6 (a)\nherein, either party may pursue temporary and/or preliminary injunctive relief in a court of competent jurisdiction for specific performance of the\nrestrictions in Sections 1 and 2 of this Agreement, tortious interference with prospective employment and/or the protection of confidential\ninformation and/or trade secrets, prevention of unfair competition, or enforcement of post-employment contractual restrictions or rights related to\nsame; provided, however, that all issues of final relief shall continue to be decided through arbitration, and the pursuit of the temporary and/or\npreliminary injunctive relief described herein shall not constitute a waiver of the parties’ agreement to arbitrate by any party. Both you and the\nCompany expressly waive the right to trial by jury.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect\nthe remaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between\nyou and the Company other than at-will employment for all purposes. This agreement supersedes any and all prior agreements concerning the\nsubject matter hereof, and any severance amounts or obligations of the Company to you referenced herein shall be in lieu of, and not in addition\nto, any such amounts or obligations in prior agreements.\n9. Governing Law. Subject to the applicability of the Federal Arbitration Act as stated in Section 6 of this agreement, all other terms of\nthis agreement and all other rights and obligations of the parties thereto shall be interpreted and governed by the laws of the state of New York.\n10. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this\nagreement) would cause you to incur any additional tax or interest under Section 409A of the Code, the Company and you shall reasonably\ncooperate to reform such provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without\nviolating 409A of the Code, the original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require\nthe Company to provide you with any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED\nJ. Crew Group, Inc.\nSignature: /s/ Joan Durkin\nSignature: /s/ Lynda Markoe\nName:\nJoan Durkin\nName:\nLynda Markoe\nTitle:\nEVP – Human Resources\nDate:\nFebruary 18, 2013\nDate:\nFebruary 20, 2013\n3\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in Section 2(a) above shall apply to\nemployment with any entity doing business under the names set forth below, as well as their parent, subsidiary, and affiliate companies or joint\nventure partners, in the United States, Canada, the United Kingdom, Hong Kong, The People’s Republic of China and any other countries or\nterritories where the Company conducts or has material plans to conduct business as of the Termination Date:\nAbercrombie & Fitch\nAeropostale, Inc.\nAmerican Eagle Outfitters, Inc.\nANN, Inc.\nBrooks Brothers Group, Inc.\nC.Wonder, LLC\nCoach, Inc.\nFifth & Pacific Companies, Inc. (formerly Liz Claiborne, Inc.)\nGap, Inc.\nGiorgio Armani S.p .A.\nLimited Brands, Inc.\nLVMH Moet Hennessey – Louis Vuitton SA\nMichael Kors, Inc.\nRalph Lauren Corporation\nTory Burch LLC\nUrban Outfitters, Inc.\nAny retail apparel start-up operated by one of the above companies and all brands or divisions operated by one of the above companies.\n4	EX-10.20 2 jcg-ex1020_20150131101.htm EX-10.20\nExhibit 10.20\nNON-DISCLOSURE, NON-SOLICITATION, NON-COMPETITION AND DISPUTE RESOLUTION AGREEMENT\nIn consideration of your continued employment as SVP — Chief Accounting Officer with J. Crew Group, Inc. and its affiliates\n(collectively, the "Company") and for other good and valuable consideration, receipt of which is hereby acknowledged, effective as of January\n22, 2013, you and the Company agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the\nCompany, you have and will have acquired and have had access to confidential or proprietary information about the Company, including but not\nlimited to, trade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs,\nagreements and/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative\npolicies, practices, concepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines,\nfuture merchandise designs, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee\nlists, training manuals, financial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible\nmergers, acquisitions or joint ventures and information about or received from vendors and other companies with which the Company does\nbusiness. The foregoing shall be collectively referred to as “Confidential Information.” You are aware that the Confidential Information is not\nreadily available to the public. You agree that during your employment or provision of services and for a period of three (3) years thereafter, you\nwill keep confidential and not disclose the Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in\nperforming your duties as our employee or agent. You agree that this restriction shall apply whether or not any such information is marked\n“confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material™)\ncompiled by you or made available to you during your employment (whether or not the material contains confidential information) are the\nproperty of the Company and shall be delivered to the Company on the termination of your employment or at any other time upon\nrequest. Except in connection with your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to\nrequire the performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a\nposition of confidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires\nthe disclosure of confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering\nof services to the Company, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the\nCompany and knowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the\ngoodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that:\n(a) while you are in the Company’s employ and for the period of six months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company, render services to or accept employment, either directly\nas an employee or owner, or indirectly, as a paid or unpaid consultant or independent contractor of any entity identified on Schedule A hereto (as\nmay be updated by the Company and communicated to you from time to time); and\n(b) while you are in the Company’s employ and for the period of twelve months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company recruit, hire, solicit, or employ as an employee or retain\nas a consultant any person who is then or at any time during the preceding twelve months was an employee of or consultant to the Company, or\npersuade or attempt to persuade any employee of or consultant to the Company to leave the employ of the Company or to become employed as\nan employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause. Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b)\nthe Company does not consent at your written request to waive any of the post-employment restrictions contained in Section 2(a) above, and (c)\nyou execute and deliver to Company an irrevocable Separation Agreement and Release, within 60 days after your termination of employment\n(and any payment that constitutes non-qualified deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended\nand any regulations thereunder (the “Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at\nthe expiration of such 60-day period), in a form acceptable to the Company, the Company will (i) pay you a lump sum amount equal to the\nproduct of (x) the annual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in\nthe fiscal year which includes the date of your termination of employment had your employment not been terminated and (y) a fraction, the\nnumerator of which is the number of days in the fiscal year that includes the date of your termination through the date of such termination and\nthe denominator of which is 365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15th day\nof the third month following the end of the year with respect to which such bonus was earned; (ii) continue to pay your then-current base salary,\nless all\napplicable deductions, according to the company’s normal payroll practices for six (6) months immediately following your last date of\nemployment (“Termination Date”) (collectively, the “Salary Continuation Payments”); and (iii) reimburse you for out-of-pocket COBRA\npayments paid by you to continue your group health benefits for such six-month period, provided you submit relevant supporting documentation to\nthe company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments\nshall terminate effective immediately and be of no force and effect upon the date that you become employed or are retained by another entity as\nan employee, consultant or otherwise, with or without compensation, and you agree to notify the Executive Vice-President of Human Resources\nin writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources, (a) you\nwill forfeit your right to receive the payments described above (to the extent the payments were not theretofore paid) and (b) the company shall\nbe entitled to recover any payments already made to you or on your behalf.\n \nNotwithstanding the foregoing, in the event you are a “specified employee” (within the meaning of Section 409A(2)(B) of the Internal\nRevenue Code of 1986, as amended (the “Code”)) on the Termination Date and the Salary Continuation Payments to be paid to you within the\nfirst six months following such date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)\n(the “Limit”), then: (i) any portion of the Salary Continuation Payments that is payable during the Initial Payment Period that does not exceed the\nLimit shall be paid at the times set forth above; (ii) any portion of the Salary Continuation Payments that is a “short-term deferral” within the\nmeaning of Treas. Regs. Section 1.409A-1(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation\nPayments that exceeds the Limit and is not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the\nLimit) shall be paid on the first business day of the first calendar month that begins after the six-month anniversary of the Termination Date or, if\nearlier, on the date of your death; and (iv) any portion of the Salary Continuation Payments that is payable after the Initial Payment Period shall\nbe paid at the times set forth above. It is intended that each installment, if any, of the payments and benefits, if any, provided to you under this\nSection 3 shall be treated as a separate “payment” for purposes of Section 409A of the Code.\n“Cause” shall mean gross incompetence; failure to comply with the company’s policies including, but not limited to, those contained in the\ncompany’s Associate Handbook or Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving\ndishonesty or moral turpitude; falsification of employment applications, records, or any work product for the Company; participation in any act\nof misconduct, insubordination or fraud against the company; use of alcohol or drugs which interferes with your performance of your duties or\ncompromises the integrity or reputation of the company; and unauthorized absence from work other than as a result of disability. No payment\nwill be required if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in Section\n2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n"Cause," as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the\nTermination Date. In the event of termination for Cause or your resignation, the Company will not pay any severance or Salary Continuation\nPayments, and the restrictions contained in Sections 1 and 2 above will remain in full force and effect unless waived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on\nthe third anniversary of such date; provided however, that it shall automatically renew for further terms of one (1) year each upon the same terms\nand conditions herein, unless the Company provides written notice of non-renewal to you at least 30 days prior to the expiration of the initial\nterm or any renewal term.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the expiration of any term, you shall remain subject\nto the post-termination restrictions contained in Sections 1 and 2 hereof and Section 6 hereof and shall be entitled to the severance payment\ncontained in Section 3 hereof provided that the terms and conditions applicable thereto have been satisfied.\n6. Dispute Resolution and Arbitration\n(a) Any and all justiciable controversies, claims or disputes that you may have against the Company and/or the Company may have against\nyou arising out of, relating to, or resulting from your employment with the Company, or the separation of your employment with the Company,\nincluding claims arising out of or related to this Agreement, shall be subject to mandatory arbitration (“Mandatory Arbitration”) as set forth\nherein. The mutual obligations by the Company and you to arbitrate differences provide mutual consideration for this Mandatory Arbitration\nprovision. Prior to commencing arbitration, if any such matter cannot be settled through negotiation, then the parties agree first to try in good\nfaith to settle the dispute by mediation through a mediator selected by the mutual agreement of both parties. If any such matters cannot be\nresolved by mediation within 30 days of the Company or you requesting mediation (or such longer period as to which you and the Company\nagree in writing), they shall be finally resolved by final and binding arbitration. The parties shall select a neutral arbitrator and/or arbitration\nsponsoring organization by mutual agreement. If the parties are not able to mutually agree to an arbitrator and/or arbitration sponsoring\norganization, the arbitration will be held under the auspices of the American Arbitration Association (“AAA”), and except as otherwise provided\nin this Agreement, shall be in\naccordance with the then current Employment Arbitration Rules of the AAA, which may be found at www.adr.org or by using an internet search\nengine to locate “AAA Employment Arbitration Rules”). The arbitrator, and not any federal, state or local court or agency, shall have the\nexclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Mandatory Arbitration\nprovision. Subject to remedies to which a party to the arbitration may be entitled under applicable law, each party shall pay the fees of its own\nattorneys, the expenses of its witnesses and all other expenses connected with presenting its case. Other costs of the arbitration, including the\ncost of any record or transcripts of the arbitration, administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne by the\nCompany. All arbitral awards shall be final and binding, and the arbitration will be conducted in the City of New York, New York, in accordance\nwith the Federal Arbitration Act (9 U.S.C. 8§ 1 et seq.). A judgment of a court of competent jurisdiction shall be entered upon the award made\npursuant to the arbitration.\n(b) You agree that any actual or threatened breach by you of the covenants set forth in Sections 1 and 2 of this agreement would result in\nirreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, without limiting Section 6 (a)\nherein, either party may pursue temporary and/or preliminary injunctive relief in a court of competent jurisdiction for specific performance of the\nrestrictions in Sections 1 and 2 of this Agreement, tortious interference with prospective employment and/or the protection of confidential\ninformation and/or trade secrets, prevention of unfair competition, or enforcement of post-employment contractual restrictions or rights related to\nsame; provided, however, that all issues of final relief shall continue to be decided through arbitration, and the pursuit of the temporary and/or\npreliminary injunctive relief described herein shall not constitute a waiver of the parties’ agreement to arbitrate by any party. Both you and the\nCompany expressly waive the right to trial by jury.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect\nthe remaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between\nyou and the Company other than at-will employment for all purposes. This agreement supersedes any and all prior agreements concerning the\nsubject matter hereof, and any severance amounts or obligations of the Company to you referenced herein shall be in lieu of, and not in addition\nto, any such amounts or obligations in prior agreements.\n9. Governing Law. Subject to the applicability of the Federal Arbitration Act as stated in Section 6 of this agreement, all other terms of\nthis agreement and all other rights and obligations of the parties thereto shall be interpreted and governed by the laws of the state of New York.\n10. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this\nagreement) would cause you to incur any additional tax or interest under Section 409A of the Code, the Company and you shall reasonably\ncooperate to reform such provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without\nviolating 409A of the Code, the original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require\nthe Company to provide you with any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED J. Crew Group, Inc.\nSignature: /s/ Joan Durkin Signature: /s/ Lynda Markoe\nName: Joan Durkin Name: Lynda Markoe\nTitle: EVP — Human Resources\nDate: February 18, 2013 Date: February 20, 2013\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in Section 2(a) above shall apply to\nemployment with any entity doing business under the names set forth below, as well as their parent, subsidiary, and affiliate companies or joint\nventure partners, in the United States, Canada, the United Kingdom, Hong Kong, The People’s Republic of China and any other countries or\nterritories where the Company conducts or has material plans to conduct business as of the Termination Date:\nAbercrombie & Fitch\nAeropostale, Inc.\nAmerican Eagle Outfitters, Inc.\nANN, Inc.\nBrooks Brothers Group, Inc.\nC.Wonder, LLC\nCoach, Inc.\nFifth & Pacific Companies, Inc. (formerly Liz Claiborne, Inc.)\nGap, Inc.\nGiorgio Armani S.p.A.\nLimited Brands, Inc.\nLVMH Moet Hennessey — Louis Vuitton SA\nMichael Kors, Inc.\nRalph Lauren Corporation\nTory Burch LLC\nUrban Outfitters, Inc.\nAny retail apparel start-up operated by one of the above companies and all brands or divisions operated by one of the above companies.\n4	EX-10.20 2 jcg-ex1020_20150131101.htm EX-10.20\nExhibit 10.20\nNON-DISCLOSURE, NON-SOLICITATION, NON-COMPETITION AND DISPUTE RESOLUTION AGREEMENT\nIn consideration of your continued employment as SVP Chief Accounting Officer with J. Crew Group, Inc. and its affiliates\n(collectively, the "Company") and for other good and valuable consideration, receipt of which is hereby acknowledged, effective as of January\n22, 2013, you and the Company agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the\nCompany, you have and will have acquired and have had access to confidential or proprietary information about the Company, including but not\nlimited to, trade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs,\nagreements and/or contracts between the Company and its vendors and suppliers, the Company's merchandising, marketing and/or creative\npolicies, practices, concepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines,\nfuture merchandise designs, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee\nlists, training manuals, financial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible\nmergers, acquisitions or joint ventures and information about or received from vendors and other companies with which the Company does\nbusiness. The foregoing shall be collectively referred to as "Confidential Information." You are aware that the Confidential Information is not\nreadily available to the public. You agree that during your employment or provision of services and for a period of three (3) years thereafter,\nyou\nwill keep confidential and not disclose the Confidential Information to anyone or use it for your own benefit or for the benefit of others, except\nin\nperforming your duties as our employee or agent. You agree that this restriction shall apply whether or not any such information is marked\n"confidential."\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the "material")\ncompiled\nby\nyou\nor\nmade\navailable\nto\nyou\nduring\nyour\nemployment\n(whether\nor\nnot\nthe\nmaterial\ncontains\nconfidential\ninformation)\nare\nthe\nproperty of the Company and shall be delivered to the Company on the termination of your employment or at any other time upon\nrequest. Except in connection with your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to\nrequire the performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a\nposition of confidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires\nthe disclosure of confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering\nof services to the Company, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the\nCompany and knowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the\ngoodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that:\n(a) while you are in the Company's employ and for the period of six months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company, render services to or accept employment, either directly\nas an employee or owner, or indirectly, as a paid or unpaid consultant or independent contractor of any entity identified on Schedule A hereto (as\nmay be updated by the Company and communicated to you from time to time); and\n(b) while you are in the Company's employ and for the period of twelve months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company recruit, hire, solicit, or employ as an employee or retain\nas a consultant any person who is then or at any time during the preceding twelve months was an employee of or consultant to the Company, or\npersuade or attempt to persuade any employee of or consultant to the Company to leave the employ of the Company or to become employed as\nan employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause. Should your employment be (a) terminated by the Company without "Cause," as defined below; and (b)\nthe Company does not consent at your written request to waive any of the post-employment restrictions contained in Section 2(a) above,\nand\n(c)\nyou execute and deliver to Company an irrevocable Separation Agreement and Release, within 60 days after your termination of employment\n(and any payment that constitutes non-qualified deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended\nand any regulations thereunder (the "Code") that otherwise would be made within such 60-day period pursuant to this paragraph shall\nbe\npaid\nat\nthe expiration of such 60-day period), in a form acceptable to the Company, the Company will (i) pay you a lump sum amount equal to the\nproduct of (x) the annual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in\nthe\nfiscal\nyear\nwhich\nincludes\nthe\ndate\nof\nyour\ntermination\nof\nemployment\nhad\nyour\nemployment\nnot\nbeen\nterminated\nand\n(y)\na\nfraction,\nthe\nnumerator of which is the number of days in the fiscal year that includes the date of your termination through the date of such termination and\nthe denominator of which is 365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15th day\nof the third month following the end of the year with respect to which such bonus was earned; (ii) continue to pay your then-current base salary,\nless all\napplicable deductions, according to the company's normal payroll practices for six (6) months immediately following your last date\nof\nemployment ("Termination Date") (collectively, the "Salary Continuation Payments"); and (iii) reimburse you for out-of-pocket COBRA\npayments paid by you to continue your group health benefits for such six-month period, provided you submit relevant supporting documentation to\nthe company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments\nshall terminate effective immediately and be of no force and effect upon the date that you become employed or are retained by another entity as\nan\nemployee, consultant or otherwise, with or without compensation, and you agree to notify the Executive Vice-President of Human Resources\nin\nwriting\nprior\nto\nthe\neffective\ndate\nof\nany\nsuch\nemployment.\nIf\nyou\nfail\nto\nso\nnotify\nthe\nExecutive\nVice-President\nof\nHuman\nResources,\n(a)\nyou\nwill forfeit your right to receive the payments described above (to the extent the payments were not theretofore paid) and (b) the company shall\nbe entitled to recover any payments already made to you or on your behalf.\nNotwithstanding the foregoing, in the event you are a "specified employee" (within the meaning of Section 409A(2)(B) of the Internal\nRevenue Code of 1986, as amended (the "Code")) on the Termination Date and the Salary Continuation Payments to be paid to you within the\nfirst six months following such date (the "Initia Payment Period") exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(i1i)(A)\n(the "Limit"), then: (i) any portion of the Salary Continuation Payments that is payable during the Initial Payment Period that does not exceed the\nLimit shall be paid at the times set forth above; (ii) any portion of the Salary Continuation Payments that is a "short-term deferral" within the\nmeaning\nof\nTreas.\nRegs.\nSection\n1.409A-1(b)(4)(i\nshall\nbe\npaid\nat\nthe\ntimes\nset\nforth\nabove;\n(iii)\nany\nportion\nof\nthe\nSalary\nContinuation\nPayments that exceeds the Limit and is not a "short-term deferral" (and would have been payable during the Initial Payment Period but for the\nLimit) shall be paid on the first business day of the first calendar month that begins after the six-month anniversary of the Termination Date or,\nif\nearlier, on the date of your death; and (iv) any portion of the Salary Continuation Payments that is payable after the Initial Payment Period shall\nbe paid at the times set forth above. It is intended that each installment, if any, of the payments and benefits, if any, provided to you under this\nSection 3 shall be treated as a separate "payment" for purposes of Section 409A of the Code.\n"Cause" shall mean gross incompetence; failure to comply with the company's policies including, but not limited to, those contained in the\ncompany's Associate Handbook or Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving\ndishonesty or moral turpitude; falsification of employment applications, records, or any work product for the Company; participation in any\nact\nof misconduct, insubordination or fraud against the company; use of alcohol or drugs which interferes with your performance of your duties or\ncompromises the integrity or reputation of the company; and unauthorized absence from work other than as a result of disability. No payment\nwill be required if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in Section\n2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n"Cause," as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the\nTermination Date. In the event of termination for Cause or your resignation, the Company will not pay any severance or Salary Continuation\nPayments, and the restrictions contained in Sections 1 and 2 above will remain in full force and effect unless waived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on\nthe third anniversary of such date; provided however, that it shall automatically renew for further terms of one (1) year each upon the same terms\nand conditions herein, unless the Company provides written notice of non-renewal to you at least 30 days prior to the expiration of the initia\nterm or any renewal term.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the expiration of any term, you shall remain subject\nto the post-termination restrictions contained in Sections 1 and 2 hereof and Section 6 hereof and shall be entitled to the severance payment\ncontained in Section 3 hereof provided that the terms and conditions applicable thereto have been satisfied.\n6. Dispute Resolution and Arbitration\n(a) Any and all justiciable controversies, claims or disputes that you may have against the Company and/or the Company may have against\nyou arising out of, relating to, or resulting from your employment with the Company, or the separation of your employment with the Company,\nincluding claims arising out of or related to this Agreement, shall be subject to mandatory arbitration ("Mandatory Arbitration") as set forth\nherein. The mutual obligations by the Company and you to arbitrate differences provide mutual consideration for this Mandatory Arbitration\nprovision. Prior to commencing arbitration, if any such matter cannot be settled through negotiation, then the parties agree first to try in good\nfaith to settle the dispute by mediation through a mediator selected by the mutual agreement of both parties. If any such matters cannot be\nresolved by mediation within 30 days of the Company or you requesting mediation (or such longer period as to which you and the Company\nagree in writing), they shall be finally resolved by final and binding arbitration. The parties shall select a neutral arbitrator and/or arbitration\nsponsoring organization by mutual agreement. If the parties are not able to mutually agree to an arbitrator and/or arbitration sponsoring\norganization the arbitration will be held under the auspices of the American Arbitration Association ("AAA"), and except as otherwise provided\nin this Agreement, shall be in\n2\naccordance with the then current Employment Arbitration Rules of the AAA, which may be found at www.adr.org or by using an internet search\nengine\nto\nlocate\n"AAA\nEmployment\nArbitration\nRules").\nThe\narbitrator,\nand\nnot\nany\nfederal,\nstate\nor\nlocal\ncourt\nor\nagency,\nshall\nhave\nthe\nexclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Mandatory Arbitration\nprovision. Subject to remedies to which a party to the arbitration may be entitled under applicable law, each party shall pay the fees of its own\nattorneys, the expenses of its witnesses and all other expenses connected with presenting its case. Other costs of the arbitration, including the\ncost of any record or transcripts of the arbitration, administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne by the\nCompany. All arbitral awards shall be final and binding, and the arbitration will be conducted in the City of New York, New York, in accordance\nwith the Federal Arbitration Act (9 U.S.C. 88 1 et seq.). A judgment of a court of competent jurisdiction shall be entered upon the award made\npursuant to the arbitration.\n(b) You agree that any actual or threatened breach by you of the covenants set forth in Sections 1 and 2 of this agreement would result in\nirreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, without limiting Section 6 (a)\nherein, either party may pursue temporary and/or preliminary injunctive relief in a court of competent jurisdiction for specific performance of the\nrestrictions in Sections 1 and 2 of this Agreement, tortious interference with prospective employment and/or the protection of confidential\ninformation and/or trade secrets, prevention of unfair competition, or enforcement of post-employment contractual restrictions or rights related\nto\nsame; provided, however, that all issues of final relief shall continue to be decided through arbitration, and the pursuit of the temporary and/or\npreliminary injunctive relief described herein shall not constitute a waiver of the parties' agreement to arbitrate by any party. Both you and the\nCompany expressly waive the right to trial by jury.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect\nthe remaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between\nyou and the Company other than at-will employment for all purposes. This agreement supersedes any and all prior agreements concerning the\nsubject matter hereof, and any severance amounts or obligations of the Company to you referenced herein shall be in lieu of, and not in addition\nto, any such amounts or obligations in prior agreements.\n9.\nGoverning Law. Subject to the applicability of the Federal Arbitration Act as stated in Section 6 of this agreement, all other terms of\nthis agreement and all other rights and obligations of the parties thereto shall be interpreted and governed by the laws of the state of New York.\n10. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this\nagreement) would cause you to incur any additional tax or interest under Section 409A of the Code, the Company and you shall reasonably\ncooperate to reform such provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without\nviolating 409A of the Code, the original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require\nthe Company to provide you with any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED\nJ. Crew Group, Inc.\nSignature: /s/ Joan Durkin\nSignature: /s/ Lynda Markoe\nName:\nJoan Durkin\nName:\nLynda Markoe\nTitle:\nEVP Human Resources\nDate:\nFebruary 18, 2013\nDate:\nFebruary 20, 2013\n3\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in Section 2(a) above shall apply to\nemployment with any entity doing business under the names set forth below, as well as their parent, subsidiary, and affiliate companies or joint\nventure partners, in the United States, Canada, the United Kingdom, Hong Kong, The People's Republic of China and any other countries or\nterritories where the Company conducts or has material plans to conduct business as of the Termination Date:\nAbercrombie & Fitch\nAeropostale, Inc.\nAmerican Eagle Outfitters, Inc.\nANN, Inc.\nBrooks Brothers Group, Inc.\nC.Wonder, LLC\nCoach, Inc.\nFifth & Pacific Companies, Inc. (formerly Liz Claiborne, Inc.)\nGap, Inc.\nGiorgio Armani S.p.A.\nLimited Brands, Inc.\nLVMH Moet Hennessey - Louis Vuitton SA\nMichael Kors, Inc.\nRalph Lauren Corporation\nTory Burch LLC\nUrban Outfitters, Inc.\nAny retail apparel start-up operated by one of the above companies and all brands or divisions operated by one of the above companies.\n4	EX-10.20 2 jcg-ex1020_20150131101.htm EX-10.20\nExhibit 10.20\nNON-DISCLOSURE, NON-SOLICITATION, NON-COMPETITION AND DISPUTE RESOLUTION AGREEMENT\nIn consideration of your continued employment as SVP – Chief Accounting Officer with J. Crew Group, Inc. and its affiliates\n(collectively, the "Company") and for other good and valuable consideration, receipt of which is hereby acknowledged, effective as of January\n22, 2013, you and the Company agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the\nCompany, you have and will have acquired and have had access to confidential or proprietary information about the Company, including but not\nlimited to, trade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs,\nagreements and/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative\npolicies, practices, concepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines,\nfuture merchandise designs, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee\nlists, training manuals, financial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible\nmergers, acquisitions or joint ventures and information about or received from vendors and other companies with which the Company does\nbusiness. The foregoing shall be collectively referred to as “Confidential Information.” You are aware that the Confidential Information is not\nreadily available to the public. You agree that during your employment or provision of services and for a period of three (3) years thereafter, you\nwill keep confidential and not disclose the Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in\nperforming your duties as our employee or agent. You agree that this restriction shall apply whether or not any such information is marked\n“confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”)\ncompiled by you or made available to you during your employment (whether or not the material contains confidential information) are the\nproperty of the Company and shall be delivered to the Company on the termination of your employment or at any other time upon\nrequest. Except in connection with your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to\nrequire the performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a\nposition of confidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires\nthe disclosure of confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering\nof services to the Company, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the\nCompany and knowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the\ngoodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that:\n(a) while you are in the Company’s employ and for the period of six months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company, render services to or accept employment, either directly\nas an employee or owner, or indirectly, as a paid or unpaid consultant or independent contractor of any entity identified on Schedule A hereto (as\nmay be updated by the Company and communicated to you from time to time); and\n(b) while you are in the Company’s employ and for the period of twelve months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company recruit, hire, solicit, or employ as an employee or retain\nas a consultant any person who is then or at any time during the preceding twelve months was an employee of or consultant to the Company, or\npersuade or attempt to persuade any employee of or consultant to the Company to leave the employ of the Company or to become employed as\nan employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause. Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b)\nthe Company does not consent at your written request to waive any of the post-employment restrictions contained in Section 2(a) above, and (c)\nyou execute and deliver to Company an irrevocable Separation Agreement and Release, within 60 days after your termination of employment\n(and any payment that constitutes non-qualified deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended\nand any regulations thereunder (the “Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at\nthe expiration of such 60-day period), in a form acceptable to the Company, the Company will (i) pay you a lump sum amount equal to the\nproduct of (x) the annual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in\nthe fiscal year which includes the date of your termination of employment had your employment not been terminated and (y) a fraction, the\nnumerator of which is the number of days in the fiscal year that includes the date of your termination through the date of such termination and\nthe denominator of which is 365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15th day\nof the third month following the end of the year with respect to which such bonus was earned; (ii) continue to pay your then-current base salary,\nless all\napplicable deductions, according to the company’s normal payroll practices for six (6) months immediately following your last date of\nemployment (“Termination Date”) (collectively, the “Salary Continuation Payments”); and (iii) reimburse you for out-of-pocket COBRA\npayments paid by you to continue your group health benefits for such six-month period, provided you submit relevant supporting documentation to\nthe company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments\nshall terminate effective immediately and be of no force and effect upon the date that you become employed or are retained by another entity as\nan employee, consultant or otherwise, with or without compensation, and you agree to notify the Executive Vice-President of Human Resources\nin writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources, (a) you\nwill forfeit your right to receive the payments described above (to the extent the payments were not theretofore paid) and (b) the company shall\nbe entitled to recover any payments already made to you or on your behalf.\nNotwithstanding the foregoing, in the event you are a “specified employee” (within the meaning of Section 409A(2)(B) of the Internal\nRevenue Code of 1986, as amended (the “Code”)) on the Termination Date and the Salary Continuation Payments to be paid to you within the\nfirst six months following such date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)\n(the “Limit”), then: (i) any portion of the Salary Continuation Payments that is payable during the Initial Payment Period that does not exceed the\nLimit shall be paid at the times set forth above; (ii) any portion of the Salary Continuation Payments that is a “short-term deferral” within the\nmeaning of Treas. Regs. Section 1.409A-1(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation\nPayments that exceeds the Limit and is not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the\nLimit) shall be paid on the first business day of the first calendar month that begins after the six-month anniversary of the Termination Date or, if\nearlier, on the date of your death; and (iv) any portion of the Salary Continuation Payments that is payable after the Initial Payment Period shall\nbe paid at the times set forth above. It is intended that each installment, if any, of the payments and benefits, if any, provided to you under this\nSection 3 shall be treated as a separate “payment” for purposes of Section 409A of the Code.\n“Cause” shall mean gross incompetence; failure to comply with the company’s policies including, but not limited to, those contained in the\ncompany’s Associate Handbook or Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving\ndishonesty or moral turpitude; falsification of employment applications, records, or any work product for the Company; participation in any act\nof misconduct, insubordination or fraud against the company; use of alcohol or drugs which interferes with your performance of your duties or\ncompromises the integrity or reputation of the company; and unauthorized absence from work other than as a result of disability. No payment\nwill be required if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in Section\n2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n"Cause," as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the\nTermination Date. In the event of termination for Cause or your resignation, the Company will not pay any severance or Salary Continuation\nPayments, and the restrictions contained in Sections 1 and 2 above will remain in full force and effect unless waived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on\nthe third anniversary of such date; provided however, that it shall automatically renew for further terms of one (1) year each upon the same terms\nand conditions herein, unless the Company provides written notice of non-renewal to you at least 30 days prior to the expiration of the initial\nterm or any renewal term.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the expiration of any term, you shall remain subject\nto the post-termination restrictions contained in Sections 1 and 2 hereof and Section 6 hereof and shall be entitled to the severance payment\ncontained in Section 3 hereof provided that the terms and conditions applicable thereto have been satisfied.\n6. Dispute Resolution and Arbitration\n(a) Any and all justiciable controversies, claims or disputes that you may have against the Company and/or the Company may have against\nyou arising out of, relating to, or resulting from your employment with the Company, or the separation of your employment with the Company,\nincluding claims arising out of or related to this Agreement, shall be subject to mandatory arbitration (“Mandatory Arbitration”) as set forth\nherein. The mutual obligations by the Company and you to arbitrate differences provide mutual consideration for this Mandatory Arbitration\nprovision. Prior to commencing arbitration, if any such matter cannot be settled through negotiation, then the parties agree first to try in good\nfaith to settle the dispute by mediation through a mediator selected by the mutual agreement of both parties. If any such matters cannot be\nresolved by mediation within 30 days of the Company or you requesting mediation (or such longer period as to which you and the Company\nagree in writing), they shall be finally resolved by final and binding arbitration. The parties shall select a neutral arbitrator and/or arbitration\nsponsoring organization by mutual agreement. If the parties are not able to mutually agree to an arbitrator and/or arbitration sponsoring\norganization, the arbitration will be held under the auspices of the American Arbitration Association (“AAA”), and except as otherwise provided\nin this Agreement, shall be in\n2\naccordance with the then current Employment Arbitration Rules of the AAA, which may be found at www.adr.org or by using an internet search\nengine to locate “AAA Employment Arbitration Rules”). The arbitrator, and not any federal, state or local court or agency, shall have the\nexclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Mandatory Arbitration\nprovision. Subject to remedies to which a party to the arbitration may be entitled under applicable law, each party shall pay the fees of its own\nattorneys, the expenses of its witnesses and all other expenses connected with presenting its case. Other costs of the arbitration, including the\ncost of any record or transcripts of the arbitration, administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne by the\nCompany. All arbitral awards shall be final and binding, and the arbitration will be conducted in the City of New York, New York, in accordance\nwith the Federal Arbitration Act (9 U.S .C . §§ 1 et seq.) . A judgment of a court of competent jurisdiction shall be entered upon the award made\npursuant to the arbitration.\n(b) You agree that any actual or threatened breach by you of the covenants set forth in Sections 1 and 2 of this agreement would result in\nirreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, without limiting Section 6 (a)\nherein, either party may pursue temporary and/or preliminary injunctive relief in a court of competent jurisdiction for specific performance of the\nrestrictions in Sections 1 and 2 of this Agreement, tortious interference with prospective employment and/or the protection of confidential\ninformation and/or trade secrets, prevention of unfair competition, or enforcement of post-employment contractual restrictions or rights related to\nsame; provided, however, that all issues of final relief shall continue to be decided through arbitration, and the pursuit of the temporary and/or\npreliminary injunctive relief described herein shall not constitute a waiver of the parties’ agreement to arbitrate by any party. Both you and the\nCompany expressly waive the right to trial by jury.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect\nthe remaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between\nyou and the Company other than at-will employment for all purposes. This agreement supersedes any and all prior agreements concerning the\nsubject matter hereof, and any severance amounts or obligations of the Company to you referenced herein shall be in lieu of, and not in addition\nto, any such amounts or obligations in prior agreements.\n9. Governing Law. Subject to the applicability of the Federal Arbitration Act as stated in Section 6 of this agreement, all other terms of\nthis agreement and all other rights and obligations of the parties thereto shall be interpreted and governed by the laws of the state of New York.\n10. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this\nagreement) would cause you to incur any additional tax or interest under Section 409A of the Code, the Company and you shall reasonably\ncooperate to reform such provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without\nviolating 409A of the Code, the original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require\nthe Company to provide you with any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED\nJ. Crew Group, Inc.\nSignature: /s/ Joan Durkin\nSignature: /s/ Lynda Markoe\nName:\nJoan Durkin\nName:\nLynda Markoe\nTitle:\nEVP – Human Resources\nDate:\nFebruary 18, 2013\nDate:\nFebruary 20, 2013\n3\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in Section 2(a) above shall apply to\nemployment with any entity doing business under the names set forth below, as well as their parent, subsidiary, and affiliate companies or joint\nventure partners, in the United States, Canada, the United Kingdom, Hong Kong, The People’s Republic of China and any other countries or\nterritories where the Company conducts or has material plans to conduct business as of the Termination Date:\nAbercrombie & Fitch\nAeropostale, Inc.\nAmerican Eagle Outfitters, Inc.\nANN, Inc.\nBrooks Brothers Group, Inc.\nC.Wonder, LLC\nCoach, Inc.\nFifth & Pacific Companies, Inc. (formerly Liz Claiborne, Inc.)\nGap, Inc.\nGiorgio Armani S.p .A.\nLimited Brands, Inc.\nLVMH Moet Hennessey – Louis Vuitton SA\nMichael Kors, Inc.\nRalph Lauren Corporation\nTory Burch LLC\nUrban Outfitters, Inc.\nAny retail apparel start-up operated by one of the above companies and all brands or divisions operated by one of the above companies.\n4
7a70407ab1772c94cae398698d72b024.pdf	effective_date jurisdiction party term	EX-10.5 6 dex105.htm CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT, MARK A. SIRGO\nExhibit 10.5\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”) is entered into effective for all\npurposes as of August 24, 2004 by Mark A. Sirgo (“Employee”) in favor of BioDelivery Sciences International, Inc., a Delaware corporation (the\n“Company”). As used herein, the term “Company” includes BioDelivery Sciences International, Inc. and its subsidiaries, including Arius\nPharmaceuticals, Inc.\nIn consideration and as a condition of Employee providing services to the Company pursuant to that certain Employment Agreement, dated as\nof the date hereof, between Employee and the Company (the “Employment Agreement”), Employee hereby agrees as follows:\n1. Confidentiality. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, technical data, designs, formulas, test data, customer lists, business plans, marketing plans and strategies, and pricing strategies or other\nsubject matter pertaining to any business of the Company or any of its clients, customers, consultants, licensees or affiliates (collectively, the\n“Confidential Information”), which Employee may produce, obtain or otherwise learn of during the course of his performance of services and after\nthe expiration or termination of the Employment Agreement. The “Confidential Information” shall not include information, technical data or know-\nhow that is or becomes part of the public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or\nin any way allow any such Confidential Information to be delivered to or used by any third parties without the specific direction or consent of a duly\nauthorized representative of the Company.\n2. Return of Confidential Material. Upon the expiration or termination the Employment Agreement, Employee shall promptly surrender and\ndeliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of the services provided under the Employment Agreement or otherwise.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, his entire right, title and interest\nin and to all Inventions. As used in this agreement, the term “Inventions” shall mean all ideas, improvements, designs, discoveries, developments,\ndrawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to practice, made or conceived by\nEmployee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the period in which Employee\nperforms services for the Company pursuant to the Employment Agreement and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal or\noral applications and/or derivatives thereof (“Delivery Technologies”), applications of the Delivery Technologies to specific drugs, nutraceuticals,\ngenes, vaccines, vitamins or other compounds, or result from any task assigned to or undertaken by Employee or any work performed by Employee\nfor or on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after expiration or termination of the Employment Agreement. For purposes of this Agreement, the term\n“Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar\nright, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Scientific Officer of the Company, with a copy to the President of\nthe Company, in order to permit the Company to enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company’s request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company’s expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company’s own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company’s expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services\ncontemplated by the Employment Agreement (herein referred to as “Excluded Inventions”) are excluded from the definition of Inventions as used\nherein. Set forth on Exhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications,\nand a brief description of all unpatented inventions which are not the property of another party (including, without limitation, a current or previous\ncontracting party). The list is complete and if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within\nthe definition of Inventions. Employee will notify the Company in writing before Employee makes any disclosure or performs any work on behalf of\nthe Company which appears to threaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of\nEmployee’s failure to give such notice, Employee will make no claim against the Company with respect to any such inventions or ideas.\n2\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S . Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that his performance of all the terms of this Agreement and the Employment Agreement and\nas a consultant to the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data\nacquired by Employee in confidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or\nproprietary information or material belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in\nconflict herewith.\n10. Non-Solicitation. Employee agrees that he will not, without the prior written consent of the Company, at any time during the term of the\nEmployment Agreement or for a period of two (2) years from the date of the expiration or termination of the Employment Agreement for whatever\nreason, either individually or through any entity controlled by Employee, and either on Employee’s behalf or on behalf of any other person or entity\ncompeting or endeavoring to compete with the Company, directly or indirectly, knowingly solicit for employment or retention (or, following such\nsolicitation, employ or retain) as an employee, independent contractor or agent, any person who is an employee of the Company as of the date of the\nexpiration or termination of the Employment Agreement or was an employee of the Company at any time during the two (2) year prior to the the\nexpiration or termination of the Employment Agreement. Employee further agrees that, should Employee be approached by a person who Employee\nhas actual knowledge was an employee of the Company or any subsidiary or joint venture thereof during the period while Employee was employed\nby the Company, Employee will not offer to nor employ or retain (or refer to a third party) as an employee, independent contractor or agent any such\nperson for a period of two (2) years following the expiration or termination of the Employment Agreement.\n11. Injunctive Relief. Employee acknowledges that any breach or attempted breach by Employee of this Agreement or any provision hereof\nshall cause the Company irreparable harm for which any adequate monetary remedy does not exist. Accordingly, in the event of any such breach or\nthreatened breach, the Company shall be entitled to obtain injunctive relief, without the necessity of posting a bond or other surety, restraining such\nbreach or threatened breach.\n12. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee’s compensation by the Company shall not affect the validity or scope of this Agreement.\n13. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate interests\nof the Company.\n14. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee’s entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n3\n15. Severability. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n16. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee’s rights or delegate Employee’s\nduties under this Agreement or the Employment Agreement either in whole or in part without the prior written consent of the Company. Any\nattempted assignment or delegation without such consent will be null and void.\n17. Governing Law. This Agreement shall be governed by the laws of the State of New Jersey except for any conflicts of law rules thereof\nwhich might direct the application of the substantive laws of another state.\nEXECUTED as of the date set forth below.\n/s/ Mark A. Sirgo\n/s/ Andrew L. Finn\nMark A. Sirgo\nWitness\nPrint Name: Andrew L. Finn\nDated: August 24, 2004\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy: /s/ James A. McNulty\nName: James A. McNulty\nTitle: Chief Financial Officer\n[Signature Page to Confidentiality and Intellectual Property Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned’s performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nNo inventions or improvements.\nX As follows:\nSafety closure with easy-open feature for handicapped and elderly individuals Patent #5,158,194. Issued October 27, 1992; Design Patent\n#337,943 issued 8/3/93\nDated: August 24, 2004\n/s/ Mark A. Sirgo\nMark A. Sirgo	EX-10.5 6 dex105.htm CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT, MARK A. SIRGO\nExhibit 10.5\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”) is entered into effective for all\npurposes as of August 24, 2004 by Mark A. Sirgo (“Employee”) in favor of BioDelivery Sciences International, Inc., a Delaware corporation (the\n“Company”). As used herein, the term “Company” includes BioDelivery Sciences International, Inc. and its subsidiaries, including Arius\nPharmaceuticals, Inc.\nIn consideration and as a condition of Employee providing services to the Company pursuant to that certain Employment Agreement, dated as\nof the date hereof, between Employee and the Company (the “Employment Agreement”), Employee hereby agrees as follows:\n1. Confidentiality. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, technical data, designs, formulas, test data, customer lists, business plans, marketing plans and strategies, and pricing strategies or other\nsubject matter pertaining to any business of the Company or any of its clients, customers, consultants, licensees or affiliates (collectively, the\n“Confidential Information”), which Employee may produce, obtain or otherwise learn of during the course of his performance of services and after\nthe expiration or termination of the Employment Agreement. The “Confidential Information” shall not include information, technical data or know-\nhow that is or becomes part of the public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or\nin any way allow any such Confidential Information to be delivered to or used by any third parties without the specific direction or consent of a duly\nauthorized representative of the Company.\n2. Return of Confidential Material. Upon the expiration or termination the Employment Agreement, Employee shall promptly surrender and\ndeliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of the services provided under the Employment Agreement or otherwise.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, his entire right, title and interest\nin and to all Inventions. As used in this agreement, the term “Inventions” shall mean all ideas, improvements, designs, discoveries, developments,\ndrawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to practice, made or conceived by\nEmployee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the period in which Employee\nperforms services for the Company pursuant to the Employment Agreement and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal or\noral applications and/or derivatives thereof (“Delivery Technologies™), applications of the Delivery Technologies to specific drugs, nutraceuticals,\ngenes, vaccines, vitamins or other compounds, or result from any task assigned to or undertaken by Employee or any work performed by Employee\nfor or on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after expiration or termination of the Employment Agreement. For purposes of this Agreement, the term\n“Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar\nright, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Scientific Officer of the Company, with a copy to the President of\nthe Company, in order to permit the Company to enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company’s request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company’s expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company’s own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company’s expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services\ncontemplated by the Employment Agreement (herein referred to as “Excluded Inventions”) are excluded from the definition of Inventions as used\nherein. Set forth on Exhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications,\nand a brief description of all unpatented inventions which are not the property of another party (including, without limitation, a current or previous\ncontracting party). The list is complete and if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within\nthe definition of Inventions. Employee will notify the Company in writing before Employee makes any disclosure or performs any work on behalf of\nthe Company which appears to threaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of\nEmployee’s failure to give such notice, Employee will make no claim against the Company with respect to any such inventions or ideas.\n \n2\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S. Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that his performance of all the terms of this Agreement and the Employment Agreement and\nas a consultant to the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data\nacquired by Employee in confidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or\nproprietary information or material belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in\nconflict herewith.\n10. Non-Solicitation. Employee agrees that he will not, without the prior written consent of the Company, at any time during the term of the\nEmployment Agreement or for a period of two (2) years from the date of the expiration or termination of the Employment Agreement for whatever\nreason, either individually or through any entity controlled by Employee, and either on Employee’s behalf or on behalf of any other person or entity\ncompeting or endeavoring to compete with the Company, directly or indirectly, knowingly solicit for employment or retention (or, following such\nsolicitation, employ or retain) as an employee, independent contractor or agent, any person who is an employee of the Company as of the date of the\nexpiration or termination of the Employment Agreement or was an employee of the Company at any time during the two (2) year prior to the the\nexpiration or termination of the Employment Agreement. Employee further agrees that, should Employee be approached by a person who Employee\nhas actual knowledge was an employee of the Company or any subsidiary or joint venture thereof during the period while Employee was employed\nby the Company, Employee will not offer to nor employ or retain (or refer to a third party) as an employee, independent contractor or agent any such\nperson for a period of two (2) years following the expiration or termination of the Employment Agreement.\n11. Injunctive Relief. Employee acknowledges that any breach or attempted breach by Employee of this Agreement or any provision hereof\nshall cause the Company irreparable harm for which any adequate monetary remedy does not exist. Accordingly, in the event of any such breach or\nthreatened breach, the Company shall be entitled to obtain injunctive relief, without the necessity of posting a bond or other surety, restraining such\nbreach or threatened breach.\n12. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee’s compensation by the Company shall not affect the validity or scope of this Agreement.\n13. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate interests\nof the Company.\n14. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee’s entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n \n15. Severability. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n16. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee’s rights or delegate Employee’s\nduties under this Agreement or the Employment Agreement either in whole or in part without the prior written consent of the Company. Any\nattempted assignment or delegation without such consent will be null and void.\n17. Governing Law. This Agreement shall be governed by the laws of the State of New Jersey except for any conflicts of law rules thereof\nwhich might direct the application of the substantive laws of another state.\nEXECUTED as of the date set forth below.\n/s/ Mark A. Sirgo /s/ Andrew L. Finn\nMark A. Sirgo Witness\nPrint Name: Andrew L. Finn\nDated: August 24, 2004\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy:  /s/James A. McNulty\nName: James A. McNulty\nTitle: Chief Financial Officer\n[Signature Page to Confidentiality and Intellectual Property Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned’s performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nNo inventions or improvements.\nX  Asfollows:\nSafety closure with easy-open feature for handicapped and elderly individuals Patent #5,158,194. Issued October 27, 1992; Design Patent\n#337,943 issued 8/3/93\n/s/ Mark A. Sirgo\nDated: August 24, 2004\nMark A. Sirgo	EX-10.5 6 dex105.htm CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT, MARK A. SIRGO\nExhibit 10.5\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT (this "Agreement") is entered into effective for all\npurposes as of August 24, 2004 by Mark A. Sirgo ("Employee") in favor of BioDelivery Sciences International, Inc., a Delaware corporation (the\n"Company"). As used herein, the term "Company" includes BioDelivery Sciences International, Inc. and its subsidiaries, including Arius\nPharmaceuticals, Inc.\nIn consideration and as a condition of Employee providing services to the Company pursuant to that certain Employment Agreement, dated as\nof the date hereof, between Employee and the Company (the "Employment Agreement"), Employee hereby agrees as follows:\n1. Confidentiality.. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor\nthe Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, technical data, designs, formulas, test data, customer lists, business plans, marketing plans and strategies, and pricing strategies or other\nsubject matter pertaining to any business of the Company or any of its clients, customers, consultants, licensees or affiliates (collectively, the\n"Confidential Information"), which Employee may produce, obtain or otherwise learn of during the course of his performance of services and after\nthe expiration or termination of the Employment Agreement. The "Confidential Information" shall not include information, technical data or know-\nhow that is or becomes part of the public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or\nin any way allow any such Confidential Information to be delivered to or used by any third parties without the specific direction or consent of a duly\nauthorized representative of the Company.\n2. Return of Confidential Material. Upon the expiration or termination the Employment Agreement, Employee shall promptly surrender and\ndeliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of the services provided under the Employment Agreement or otherwise.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, his entire right, title and interest\nin\nand to all Inventions. As used in this agreement, the term "Inventions" shall mean all ideas, improvements, designs, discoveries, developments,\ndrawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to practice, made or conceived\nby\nEmployee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the period in which Employee\nperforms services for the Company pursuant to the Employment Agreement and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal or\noral applications and/or derivatives thereof ("Delivery Technologies"), applications of the Delivery Technologies to specific drugs, nutraceuticals,\ngenes, vaccines, vitamins or other compounds, or result from any task assigned to or undertaken by Employee or any work performed by Employee\nfor or on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after expiration or termination of the Employment Agreement. For purposes of this Agreement, the term\n"Moral Rights" means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar\nright, existing under the law of any country in the world, or under any treaty.\n4.\nDisclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Scientific Officer of the Company, with a copy to the President\nof\nthe\nCompany, in order to permit the Company to enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company's request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company's expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company's own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company's expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services\ncontemplated by the Employment Agreement (herein referred to as "Excluded Inventions") are excluded from the definition of Inventions as used\nherein. Set forth on Exhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications,\nand a brief description of all unpatented inventions which are not the property of another party (including, without limitation, a current or previous\ncontracting party). The list is complete and if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within\nthe definition of Inventions. Employee will notify the Company in writing before Employee makes any disclosure or performs any work on behalf of\nthe Company which appears to threaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of\nEmployee's failure to give such notice, Employee will make no claim against the Company with respect to any such inventions or ideas.\n2\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S. Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions\nand\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9.\nTrade Secrets of Others. Employee represents that his performance of all the terms of this Agreement and the Employment Agreement and\nas a consultant to the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data\nacquired by Employee in confidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or\nproprietary information or material belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in\nconflict herewith.\n10. Non-Solicitation. Employee agrees that he will not, without the prior written consent of the Company, at any time during the term of the\nEmployment Agreement or for a period of two (2) years from the date of the expiration or termination of the Employment Agreement for whatever\nreason, either individually or through any entity controlled by Employee, and either on Employee's behalf or on behalf of any other person or entity\ncompeting or endeavoring to compete with the Company, directly or indirectly, knowingly solicit for employment or retention (or, following such\nsolicitation, employ or retain) as an employee, independent contractor or agent, any person who is an employee of the Company as of the date of the\nexpiration or termination of the Employment Agreement or was an employee of the Company at any time during the two (2) year prior to the the\nexpiration or termination of the Employment Agreement. Employee further agrees that, should Employee be approached by a person who Employee\nhas actual knowledge was an employee of the Company or any subsidiary or joint venture thereof during the period while Employee was employed\nby the Company, Employee will not offer to nor employ or retain (or refer to a third party) as an employee, independent contractor or agent any such\nperson for a period of two (2) years following the expiration or termination of the Employment Agreement.\n11. Injunctive Relief. Employee acknowledges that any breach or attempted breach by Employee of this Agreement or any provision hereof\nshall cause the Company irreparable harm for which any adequate monetary remedy does not exist. Accordingly, in the event of any such breach or\nthreatened breach, the Company shall be entitled to obtain injunctive relief, without the necessity of posting a bond or other surety, restraining such\nbreach or threatened breach.\n12. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee's compensation by the Company shall not affect the validity or scope of this Agreement.\n13. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate interests\nof the Company.\n14. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it\nis\nEmployee's entire agreement with the Company, superseding any previous oral or written communications, representations, understandings,\nor\nagreements with the Company or any officer or representative thereof.\n3\n15. Severability. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n16. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee's rights or delegate Employee's\nduties under this Agreement or the Employment Agreement either in whole or in part without the prior written consent of the Company. Any\nattempted assignment or delegation without such consent will be null and void.\n17. Governing Law. This Agreement shall be governed by the laws of the State of New Jersey except for any conflicts of law rules thereof\nwhich might direct the application of the substantive laws of another state.\nEXECUTED as of the date set forth below.\n/s/ Mark A. Sirgo\n/s/ Andrew L. Finn\nMark A. Sirgo\nWitness\nPrint Name: Andrew L. Finn\nDated: August 24, 2004\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy:\n/s/ James A. McNulty\nName: James A. McNulty\nTitle: Chief Financial Officer\n[Signature Page to Confidentiality and Intellectual Property Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned's performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nNo inventions or improvements.\nX\nAs follows:\nSafety closure with easy-open feature for handicapped and elderly individuals Patent #5,158,194. Issued October 27, 1992; Design Patent\n#337,943 issued 8/3/93\n/s/ Mark A. Sirgo\nDated: August 24, 2004\nMark A. Sirgo	EX-10.5 6 dex105.htm CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT, MARK A. SIRGO\nExhibit 10.5\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”) is entered into effective for all\npurposes as of August 24, 2004 by Mark A. Sirgo (“Employee”) in favor of BioDelivery Sciences International, Inc., a Delaware corporation (the\n“Company”). As used herein, the term “Company” includes BioDelivery Sciences International, Inc. and its subsidiaries, including Arius\nPharmaceuticals, Inc.\nIn consideration and as a condition of Employee providing services to the Company pursuant to that certain Employment Agreement, dated as\nof the date hereof, between Employee and the Company (the “Employment Agreement”), Employee hereby agrees as follows:\n1. Confidentiality. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, technical data, designs, formulas, test data, customer lists, business plans, marketing plans and strategies, and pricing strategies or other\nsubject matter pertaining to any business of the Company or any of its clients, customers, consultants, licensees or affiliates (collectively, the\n“Confidential Information”), which Employee may produce, obtain or otherwise learn of during the course of his performance of services and after\nthe expiration or termination of the Employment Agreement. The “Confidential Information” shall not include information, technical data or know-\nhow that is or becomes part of the public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or\nin any way allow any such Confidential Information to be delivered to or used by any third parties without the specific direction or consent of a duly\nauthorized representative of the Company.\n2. Return of Confidential Material. Upon the expiration or termination the Employment Agreement, Employee shall promptly surrender and\ndeliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of the services provided under the Employment Agreement or otherwise.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, his entire right, title and interest\nin and to all Inventions. As used in this agreement, the term “Inventions” shall mean all ideas, improvements, designs, discoveries, developments,\ndrawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to practice, made or conceived by\nEmployee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the period in which Employee\nperforms services for the Company pursuant to the Employment Agreement and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal or\noral applications and/or derivatives thereof (“Delivery Technologies”), applications of the Delivery Technologies to specific drugs, nutraceuticals,\ngenes, vaccines, vitamins or other compounds, or result from any task assigned to or undertaken by Employee or any work performed by Employee\nfor or on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after expiration or termination of the Employment Agreement. For purposes of this Agreement, the term\n“Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar\nright, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Scientific Officer of the Company, with a copy to the President of\nthe Company, in order to permit the Company to enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company’s request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company’s expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company’s own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company’s expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services\ncontemplated by the Employment Agreement (herein referred to as “Excluded Inventions”) are excluded from the definition of Inventions as used\nherein. Set forth on Exhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications,\nand a brief description of all unpatented inventions which are not the property of another party (including, without limitation, a current or previous\ncontracting party). The list is complete and if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within\nthe definition of Inventions. Employee will notify the Company in writing before Employee makes any disclosure or performs any work on behalf of\nthe Company which appears to threaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of\nEmployee’s failure to give such notice, Employee will make no claim against the Company with respect to any such inventions or ideas.\n2\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S . Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that his performance of all the terms of this Agreement and the Employment Agreement and\nas a consultant to the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data\nacquired by Employee in confidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or\nproprietary information or material belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in\nconflict herewith.\n10. Non-Solicitation. Employee agrees that he will not, without the prior written consent of the Company, at any time during the term of the\nEmployment Agreement or for a period of two (2) years from the date of the expiration or termination of the Employment Agreement for whatever\nreason, either individually or through any entity controlled by Employee, and either on Employee’s behalf or on behalf of any other person or entity\ncompeting or endeavoring to compete with the Company, directly or indirectly, knowingly solicit for employment or retention (or, following such\nsolicitation, employ or retain) as an employee, independent contractor or agent, any person who is an employee of the Company as of the date of the\nexpiration or termination of the Employment Agreement or was an employee of the Company at any time during the two (2) year prior to the the\nexpiration or termination of the Employment Agreement. Employee further agrees that, should Employee be approached by a person who Employee\nhas actual knowledge was an employee of the Company or any subsidiary or joint venture thereof during the period while Employee was employed\nby the Company, Employee will not offer to nor employ or retain (or refer to a third party) as an employee, independent contractor or agent any such\nperson for a period of two (2) years following the expiration or termination of the Employment Agreement.\n11. Injunctive Relief. Employee acknowledges that any breach or attempted breach by Employee of this Agreement or any provision hereof\nshall cause the Company irreparable harm for which any adequate monetary remedy does not exist. Accordingly, in the event of any such breach or\nthreatened breach, the Company shall be entitled to obtain injunctive relief, without the necessity of posting a bond or other surety, restraining such\nbreach or threatened breach.\n12. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee’s compensation by the Company shall not affect the validity or scope of this Agreement.\n13. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate interests\nof the Company.\n14. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee’s entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n3\n15. Severability. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n16. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee’s rights or delegate Employee’s\nduties under this Agreement or the Employment Agreement either in whole or in part without the prior written consent of the Company. Any\nattempted assignment or delegation without such consent will be null and void.\n17. Governing Law. This Agreement shall be governed by the laws of the State of New Jersey except for any conflicts of law rules thereof\nwhich might direct the application of the substantive laws of another state.\nEXECUTED as of the date set forth below.\n/s/ Mark A. Sirgo\n/s/ Andrew L. Finn\nMark A. Sirgo\nWitness\nPrint Name: Andrew L. Finn\nDated: August 24, 2004\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy: /s/ James A. McNulty\nName: James A. McNulty\nTitle: Chief Financial Officer\n[Signature Page to Confidentiality and Intellectual Property Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned’s performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nNo inventions or improvements.\nX As follows:\nSafety closure with easy-open feature for handicapped and elderly individuals Patent #5,158,194. Issued October 27, 1992; Design Patent\n#337,943 issued 8/3/93\nDated: August 24, 2004\n/s/ Mark A. Sirgo\nMark A. Sirgo
7aaea789c153895efa4dc2cdb239bf7c.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 10 d374757dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nApril 15, 2011\nLinde AG\nKlosterhofstrasse 1\n80331 Munich\nGermany\nSubject: Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with the discussions between Lincare Holdings Inc. and/or its subsidiaries or affiliates (collectively the “Company”), and Linde\nAG (the “Potential Acquirer”), regarding the possibility of the Potential Acquirer or an affiliate thereof acquiring the Company (the “Potential\nTransaction”), the Company and/or its Representatives (as defined below) is intending to disclose, furnish or reveal to the Potential Acquirer and/or\nits Representatives, either orally, in writing or otherwise, or give the Potential Acquirer and its Representatives access to, certain information about\nthe business, financial condition, operations, assets and liabilities of the Company (the “Information”). As a condition to, and in consideration of, the\nCompany’s and the Potential Acquirer’s willingness to participate in those discussions and to permit the disclosure of Information to the Potential\nAcquirer and/or its Representatives, each of the parties requires the agreement of the other to the terms and conditions of this letter agreement (this\n“Agreement”).\n1. As used in this Agreement, the term “Evaluation Material” shall include all Information, whether (a) prepared by the Company, its\nRepresentatives or otherwise, (b) in written, oral, electronic or other form, or (c) prepared prior to, on or after the date of this Agreement, that is\nfurnished on or after the date hereof to the Potential Acquirer or any of its Representatives by or on behalf of the Company, regardless of the manner\nor medium in which such Evaluation Material is furnished, and such portions of other documentation, notes and materials prepared by the Potential\nAcquirer or any of its Representatives, containing or based in whole or in part on any Information furnished by or on behalf of the Company.\nEvaluation Material also shall include (i) the fact that the parties are considering the Potential Transaction, (ii) any discussions, negotiations and\ninvestigations regarding the terms, conditions or other facts with respect to the Potential Transaction, including the status thereof and the existence\nand terms of this Agreement, and (iii) that Evaluation Material has been made available to the Potential Acquirer (each “Confidential Facts”).\nEvaluation Material other than Confidential Facts does not include information that: (x) is or becomes generally available to the public other than as\na result of disclosure by the Potential Acquirer or its Representatives, (y) becomes available to the Potential Acquirer or its Representatives on a non-\nconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by the Potential Acquirer or\nits Representatives to be bound in respect of such information by a confidentiality agreement with or other obligation of secrecy to the Company or\nanother party which is known by the Potential Acquirer to have such an agreement or obligation to the Company, or (z) is independently developed\nby the Potential Acquirer or its Representatives without reference to\nany of the Information, in the case of individuals who have received Information, as can reasonably be shown by the relevant records.\nWith respect to either party and its Representatives, Confidential Facts do not include information that is or becomes disclosed by the other\nparty or its Representatives (it being understood that disclosure by a party or its Representatives of Confidential Facts shall cause such disclosure to\nbe removed from Confidential Facts for the other party and its Representatives but not the disclosing party or its Representatives).\nThe Potential Acquirer shall use, and shall cause its Representatives to use, the Evaluation Material solely for the purpose of evaluating and, if\napplicable, pursuing the Potential Transaction (the “Permitted Purpose”) and for no other purpose. Except as required by law or the rules of any\nsecurities exchange (subject to Section 3), the Potential Acquirer shall not disclose, and shall cause its Representatives not to disclose, at any time\nand whether or not the Company and the Potential Acquirer enter into a Potential Transaction (except after consummation of the Potential\nTransaction with the Potential Acquirer or its affiliates or to the extent the definitive documentation for a Potential Transaction supersedes this\nagreement), any Evaluation Material to any person or entity (other than the Company) in any manner, or permit or assist any person or entity (other\nthan the Company) to use any Evaluation Material, except that the Potential Acquirer may disclose Evaluation Material to its Representatives who\nneed to know such information for the sole purpose of assisting, and solely to the extent necessary to permit such Representatives to assist, the\nPotential Acquirer in the Permitted Purpose; provided that the Potential Acquirer shall inform each such Representative of the terms of this\nAgreement, and the Potential Acquirer shall be liable to the Company for any action or omission prohibited under this Agreement by any of its\nRepresentatives.\n“Representatives” of any person shall mean its affiliates and the directors, officers, employees, controlling persons, representatives, agents and\nadvisors of such person and its affiliates (including, without limitation, financial advisors, institutional debt financing sources, counsel and\naccountants). An “affiliate” of any person shall mean any other person that through one or more intermediaries, controls, is controlled by, or is under\ncommon control with, the first person. For purposes of this definition, “control” of a person means the possession of power to direct or cause the\ndirection of management and policies of such person, whether through ownership of voting securities, by contract or otherwise. The term “person” as\nused in this Agreement will be interpreted broadly to include the media (electronic, print or otherwise), the Internet, any governmental representative\nor authority or any corporation, company, limited liability company, enterprise, association, partnership, group or other entity or individual.\nWithout limiting the generality of the foregoing, the Potential Acquirer agrees that neither it nor any of its Representatives shall directly or\nindirectly discuss with or offer to any third party any position (whether through equity, as a co-investor, a joint venturer or otherwise) or potential\nposition in any possible transaction with the Company or any other form of direct or indirect participation in any such possible transaction or any\njoint acquisition of the Company by the Potential Acquirer and such third party without the prior written consent of the Company, except that the\nPotential Acquirer or its Representatives may do so in relation to prospective providers or arrangers of financing in relation to the Potential\nTransaction.\n2\n2. Except as required by law, rule or regulation or the rules of any securities exchange (subject to Section 3), the Company shall not disclose,\nand shall cause its Representatives not to disclose, at any time and whether or not the Company and the Potential Acquirer enter into a Potential\nTransaction (except to the extent the definitive documentation for a Potential Transaction supersedes this agreement), the Confidential Facts to any\nperson or entity except that the Company may disclose the Confidential Facts to its Representatives who need to know such information for the sole\npurpose of assisting the Company in the Permitted Purpose; provided that the Company shall inform each such Representative of the terms of this\nAgreement so far as it relates to the Company, and the Company shall be liable to the Potential Acquirer for any action or omission prohibited under\nthis Agreement by any of its Representatives.\n3. In the event that the Potential Acquirer or any of its Representatives is legally required or required by the rules of any securities exchange\nto disclose any Evaluation Material or the Company or any of its Representatives is legally required or required by the rules of any securities\nexchange to disclose the Confidential Facts the party so required will give the other party as promptly as practicable notice of such requirement so\nthat the other party may, at its own expense, seek an appropriate protective order or other remedy, and/or waive compliance with certain provisions\nof this Agreement, and the party so required will cooperate with the other party to obtain such protective order. In the event that such protective\norder or other remedy is not obtained or the other party waives compliance with the relevant provisions of this Agreement, the party so required will\nfurnish only that portion of the Evaluation Material or, as the case may be, Confidential Facts that is legally required to be disclosed and use its\nreasonable efforts, at the other party’s expense, to obtain assurances that confidential treatment will be accorded to such Evaluation Material or\nConfidential Facts.\n4. At any time upon request by the Company, the Potential Acquirer shall either, at the Potential Acquirers’ option, destroy or return to the\nCompany, as promptly as practicable after such request, all documents, materials and other items containing Evaluation Material without retaining\nany copies, extracts or other reproductions in whole or in part of such material, and, upon the written request of the Company, shall provide a\ncertification in form and substance reasonably satisfactory to the Company, signed by an officer of the Potential Acquirer, as to the completeness of\nthe destruction or return of such materials; provided that notwithstanding anything to the contrary herein and subject to the confidentiality\nobligations herein, each of the Potential Acquirer and its Representatives may retain (i) one copy of Evaluation Material to the extent required to\ncomply with the legal, regulatory or policy requirements, as well as (ii) any and all (a) emails and any attachments contained in such emails and\n(b) any electronic files, in each case, to the extent required to comply with, and automatically saved pursuant to, legal, regulatory or policy\nrequirements, including without limitation, any routine computer system back-up tapes, disks or other back-up storage devices. Compliance with this\nparagraph shall not relieve the Potential Acquirer of its other obligations under this Agreement.\n5. As a condition to any further discussions between the Company and the Potential Acquirer with respect to the Potential Transaction, and to\nthe provision of any Evaluation Material to the Potential Acquirer, the Potential Acquirer agrees that, until 18 months from the date of this\nAgreement, none of the (1) Potential Acquirer, (2) its affiliates or (3) any of the Potential Acquirer’s or such affiliates’ respective directors, officers,\nemployees or controlling persons that in the case of clauses (2) or (3) (i) have been made aware of this Agreement or who\n3\nhave otherwise received Evaluation Material or (ii) are acting on behalf of, at the direction of or with the knowledge of the Potential Acquirer or on\nbehalf of, at the direction of or with the knowledge of any of the affiliates of the Potential Acquirer who have received Evaluation Material or are\notherwise aware of this Agreement shall, without the prior consent of the Company, directly or indirectly, alone or jointly or in concert with any\nother person (including by providing financing to any other person), effect or seek, offer or propose (whether publicly or otherwise) to effect (a) the\nacquisition of record or beneficial ownership in excess of 1% of any securities or rights to acquire any securities of the Company or any of its\naffiliates, or of any rights or options to acquire such ownership (including from a person other than the Company); (b) the acquisition other than in\nthe ordinary course of business of any assets of or managed by, or interest in assets of or managed by, the Company or any of its affiliates (including\nany rights or options to acquire any such assets, including from a person other than the Company); (c) the commencement of any tender or exchange\noffer for any securities of the Company or any of its affiliates; (d) the participation in any “solicitation” of “proxies” (as such terms are used in the\nproxy rules of the U.S . Securities and Exchange Commission) or consents to vote or otherwise with respect to any voting securities of the Company\nor any of its affiliates; (e) the making of any public announcement with respect to any proposal for or offer of any extraordinary transaction\ninvolving the Company or any of its securities or assets (or those of its affiliates); (f) any other action, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company or any of its affiliates; (g) the formation, joining or in any way participating in a\n“group” (as defined under the U.S . Securities Exchange Act of 1934, as amended) with respect to the Company; or (h) any action which could\nreasonably be expected to require the Company to make a public announcement as to any of the foregoing; provided however that this Section 5\nshall cease to apply and shall be of no further force or effect in the case of (i) the public disclosure of a proposal for, or the commencement of, a\ntender or exchange offer, by a third-party (unaffiliated with the Potential Acquirer) for more than 50 percent of the Company’s capital stock or voting\nsecurities or (ii) the public disclosure by a third party (unaffiliated with the Potential Acquirer) of a proposal for, or the announcement of, or the\nentry into any agreement (including any letter of intent or similar instrument) for the acquisition (directly or indirectly, including by merger,\nconsolidation, reorganization or other business combination) of more than 50 percent of the Company’s capital stock, voting securities or\nconsolidated assets (including the stock of its subsidiaries or affiliates). The Potential Acquirer further agrees during such 18-month period not to\nrequest, directly or indirectly, that the Company (1) amend or waive any provision of this paragraph (including this sentence), or (2) otherwise\nconsent to any action inconsistent with any provision of this paragraph (including this sentence) or without the consent of the Company, take any\ninitiative with respect to the Company or any of its affiliates or securities which would reasonably be expected to require the Company or any such\naffiliate to make a public announcement regarding (1) such initiative, (2) any of the activities referred to in this paragraph, or (3) the possibility of a\ntransaction involving the Potential Acquirer or its affiliates.\n6. For the 18 month period following the date of this Agreement, none of the Potential Acquirer, and its affiliates or any of the Potential\nAcquirer’s or such affiliates’ directors, officers, employees or controlling persons, in each case who have been made aware of this Agreement or who\nhave otherwise received Evaluation Material (“Restricted Persons”) shall directly or indirectly solicit for hire or engagement, or hire or engage, any\nindividual (a) who during the three months prior to such proposed solicitation, hire, or engagement, has been\n4\nengaged or employed by the Company as a senior officer or business unit leader of the Company or (b) who is an individual the Potential Acquirer\nor its Representatives have come in contact with in connection with the Permitted Purpose; provided, however, that Restricted Persons may make\ngeneral solicitations through public advertisements in the ordinary course of business and consistent with past practice and employ persons in\nconnection with such general solicitations; and provided further that Restricted Persons may solicit and hire persons who are no longer employees of\nthe Company at the time of such solicitation or hire or who approach Restricted Persons or anyone on their behalf without being encouraged to do so\nby Restricted Persons or anyone on their behalf.\n7. Except for those representations and warranties that may be made in a definitive agreement between the Company and the Potential\nAcquirer or its affiliates concerning a Potential Transaction (if and when executed), the Potential Acquirer acknowledges and agrees that neither the\nCompany nor any of its Representatives (a) has made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material or (b) shall have any liability whatsoever hereunder to the Potential Acquirer or its Representatives relating to or resulting from\nthe use of the Evaluation Material or any errors therein or omissions therefrom. Neither this Agreement nor disclosure of any Evaluation Material to\nthe Potential Acquirer or its Representatives shall be deemed by implication or otherwise to vest in the Potential Acquirer or its Representatives\nrights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the Permitted Purpose.\n8. The Potential Acquirer agrees that all contacts or communications by the Potential Acquirer or its Representatives with the Company\nregarding the subject matter of this Agreement, including as to any Evaluation Material or request for Evaluation Material or with respect to any\nPotential Transaction, shall be made through the Company’s financial advisors, CEO, CFO or other persons nominated by them. Accordingly, the\nPotential Acquirer agrees not to directly or indirectly contact or communicate with any other executive or employee of the Company concerning\nEvaluation Material or the Potential Transaction, or to seek any information in connection therewith from any such person, without the prior consent\nof the Company.\n9. Each of the parties acknowledges that the covenants contained in this Agreement are fundamental for the protection of the other’s\nlegitimate business and proprietary interests and that in the event of any violation by it of any such covenants, the other’s remedies at law may be\ninadequate. In the event of any violation or attempted violation of this Agreement, the non-violating party shall be entitled to seek specific\nperformance and injunctive relief or other equitable remedy without any showing of irreparable harm or damage, and the violating party hereby\nwaives, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond or other security in connection with\nany such remedy. Such remedies shall not be deemed to be the exclusive remedies for any breach of this Agreement but will be in addition to all\nother remedies available at law or in equity to the non-violating party. Any trade secrets included in the Evaluation Material will also be entitled to\nall of the protections and benefits under applicable trade secret law. The violating party hereby waives, and shall use all reasonable efforts to cause\nits Representatives to waive, any requirement that the non-violating party submit proof of the economic value of any trade secret or post a bond or\nother security.\n5\n10. The Potential Acquirer understands that (a) the Company and its Representatives shall conduct the process for the Potential Transaction\nas they in their sole discretion shall determine (including, without limitation, negotiating with any prospective buyer, entering into definitive\nagreements without prior notice to the Potential Acquirer or any other person, and discontinuing discussions or negotiations with the Potential\nAcquirer or any other party at any time for any reason or no reason), (b) any procedures relating to such a Potential Transaction may be changed at\nany time without notice to the Potential Acquirer, (c) the Company shall have the right to reject or accept any potential buyer, proposal or offer, for\nany reason whatsoever, in its sole discretion, and (d) neither the Potential Acquirer nor any of its Representatives shall have any claims whatsoever\nagainst the Company or its Representatives arising out of or relating to the Potential Transaction (other than those against the parties to a definitive\nagreement with the Potential Acquirer in accordance with the terms thereof or under this Agreement). The Potential Acquirer and the Company\nacknowledge and agree that this Agreement is entered into with the express understanding that neither the Company nor the Potential Acquirer is\nobligated to enter into or to commence or continue any discussions or negotiations pertaining to the entry into any Potential Transaction, and that no\nsuch obligation shall arise unless and until a definitive agreement relating to a Potential Transaction is executed and delivered by the parties.\n11. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware. If for any reason\nany court of competent jurisdiction determines it is impossible to so construe any provision of this Agreement and holds that provision to be invalid,\nall other provisions of this Agreement shall remain in full force and effect. This Agreement was negotiated by sophisticated parties at arms length,\nand neither party hereto shall be construed as the drafting party against which the Agreement could be construed. Each of the parties hereby\nirrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware (and, absent jurisdiction in\nsuch courts, the United States Federal court located in the State of Delaware) for any actions, suits or proceedings arising out of or relating to this\nAgreement and the transactions contemplated hereby (and agrees not to commence any action, suit or proceeding relating thereto except in such\ncourts, and further agrees that service of any process, summons, notice or document by U.S . registered mail to the its address set forth above shall be\neffective service of process for any action, suit or proceeding brought against such party in any such court). Each of the parties hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions\ncontemplated hereby in the courts of the State of Delaware (and, absent jurisdiction in such courts, the United States Federal court located in the\nState of Delaware), and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such\naction, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n12. Except as otherwise provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or effect\nupon the two-year anniversary of this Agreement.\n13. This Agreement shall not be assignable by the Potential Acquirer without the consent of the Company. This Agreement shall be binding\nupon, inure to the benefit of, and be enforceable by and against the successors and assigns of each party to this Agreement.\n6\n14. The provisions of this Agreement shall be binding upon any person or entity currently or at any future time controlling, controlled by or\nunder common control with a party, and a party shall be liable to the other for any action or omission prohibited hereunder by any such person or\nentity.\n15. Neither the failure nor any delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and\nprivileges provided by law. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this\nagreement, and such invalid provision shall be deemed deleted from this Agreement to the minimum extent necessary to cure such violation.\n16. Any amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be agreed\nto in a writing signed by the Company and the Potential Acquirer. This Agreement may be executed in counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission,\nby electronic mail in “portable document format” (“.pdf”) form., or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.\n17. This Agreement contains the entire agreement and supersedes all prior agreements and understandings, both written and oral, between\nthe parties with respect to the subject matter hereof and thereof.\n7\nPlease execute and return one copy of this Agreement, which will constitute the parties agreement with respect to the subject matter hereof.\nYours truly,\nLINCARE HOLDINGS INC.\nBy: /s/ Paul G. Gabos\nName: Paul G. Gabos\nTitle: Chief Financial Officer\nAgreed to, confirmed and accepted as\nof the date first above written:\nLINDE AG\nBy: /s/ Georg Denoke\n/s/ Jens Lühring\nName: Georg Denoke\nName: Jens Lühring\nTitle: Member of the Executive Board, CFO\nTitle: Head of M&A	EX-99.(D)(2) 10 d374757dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTTAL\nApril 15, 2011\nLinde AG\nKlosterhofstrasse 1\n80331 Munich\nGermany\nSubject: Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with the discussions between Lincare Holdings Inc. and/or its subsidiaries or affiliates (collectively the “Company”), and Linde\nAG (the “Potential Acquirer”), regarding the possibility of the Potential Acquirer or an affiliate thereof acquiring the Company (the “Potential\nTransaction”), the Company and/or its Representatives (as defined below) is intending to disclose, furnish or reveal to the Potential Acquirer and/or\nits Representatives, either orally, in writing or otherwise, or give the Potential Acquirer and its Representatives access to, certain information about\nthe business, financial condition, operations, assets and liabilities of the Company (the “Information”). As a condition to, and in consideration of, the\nCompany’s and the Potential Acquirer’s willingness to participate in those discussions and to permit the disclosure of Information to the Potential\nAcquirer and/or its Representatives, each of the parties requires the agreement of the other to the terms and conditions of this letter agreement (this\n“Agreement”).\n1. Asused in this Agreement, the term “Evaluation Material” shall include all Information, whether (a) prepared by the Company, its\nRepresentatives or otherwise, (b) in written, oral, electronic or other form, or (c) prepared prior to, on or after the date of this Agreement, that is\nfurnished on or after the date hereof to the Potential Acquirer or any of its Representatives by or on behalf of the Company, regardless of the manner\nor medium in which such Evaluation Material is furnished, and such portions of other documentation, notes and materials prepared by the Potential\nAcquirer or any of its Representatives, containing or based in whole or in part on any Information furnished by or on behalf of the Company.\nEvaluation Material also shall include (i) the fact that the parties are considering the Potential Transaction, (ii) any discussions, negotiations and\ninvestigations regarding the terms, conditions or other facts with respect to the Potential Transaction, including the status thereof and the existence\nand terms of this Agreement, and (iii) that Evaluation Material has been made available to the Potential Acquirer (each “Confidential Facts”).\nEvaluation Material other than Confidential Facts does not include information that: (x) is or becomes generally available to the public other than as\na result of disclosure by the Potential Acquirer or its Representatives, (y) becomes available to the Potential Acquirer or its Representatives on a non-\nconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by the Potential Acquirer or\nits Representatives to be bound in respect of such information by a confidentiality agreement with or other obligation of secrecy to the Company or\nanother party which is known by the Potential Acquirer to have such an agreement or obligation to the Company, or (z) is independently developed\nby the Potential Acquirer or its Representatives without reference to\nany of the Information, in the case of individuals who have received Information, as can reasonably be shown by the relevant records.\nWith respect to either party and its Representatives, Confidential Facts do not include information that is or becomes disclosed by the other\nparty or its Representatives (it being understood that disclosure by a party or its Representatives of Confidential Facts shall cause such disclosure to\nbe removed from Confidential Facts for the other party and its Representatives but not the disclosing party or its Representatives).\nThe Potential Acquirer shall use, and shall cause its Representatives to use, the Evaluation Material solely for the purpose of evaluating and, if\napplicable, pursuing the Potential Transaction (the “Permitted Purpose™) and for no other purpose. Except as required by law or the rules of any\nsecurities exchange (subject to Section 3), the Potential Acquirer shall not disclose, and shall cause its Representatives not to disclose, at any time\nand whether or not the Company and the Potential Acquirer enter into a Potential Transaction (except after consummation of the Potential\nTransaction with the Potential Acquirer or its affiliates or to the extent the definitive documentation for a Potential Transaction supersedes this\nagreement), any Evaluation Material to any person or entity (other than the Company) in any manner, or permit or assist any person or entity (other\nthan the Company) to use any Evaluation Material, except that the Potential Acquirer may disclose Evaluation Material to its Representatives who\nneed to know such information for the sole purpose of assisting, and solely to the extent necessary to permit such Representatives to assist, the\nPotential Acquirer in the Permitted Purpose; provided that the Potential Acquirer shall inform each such Representative of the terms of this\nAgreement, and the Potential Acquirer shall be liable to the Company for any action or omission prohibited under this Agreement by any of its\nRepresentatives.\n“Representatives” of any person shall mean its affiliates and the directors, officers, employees, controlling persons, representatives, agents and\nadvisors of such person and its affiliates (including, without limitation, financial advisors, institutional debt financing sources, counsel and\naccountants). An “affiliate” of any person shall mean any other person that through one or more intermediaries, controls, is controlled by, or is under\ncommon control with, the first person. For purposes of this definition, “control” of a person means the possession of power to direct or cause the\ndirection of management and policies of such person, whether through ownership of voting securities, by contract or otherwise. The term “person” as\nused in this Agreement will be interpreted broadly to include the media (electronic, print or otherwise), the Internet, any governmental representative\nor authority or any corporation, company, limited liability company, enterprise, association, partnership, group or other entity or individual.\nWithout limiting the generality of the foregoing, the Potential Acquirer agrees that neither it nor any of its Representatives shall directly or\nindirectly discuss with or offer to any third party any position (whether through equity, as a co-investor, a joint venturer or otherwise) or potential\nposition in any possible transaction with the Company or any other form of direct or indirect participation in any such possible transaction or any\njoint acquisition of the Company by the Potential Acquirer and such third party without the prior written consent of the Company, except that the\nPotential Acquirer or its Representatives may do so in relation to prospective providers or arrangers of financing in relation to the Potential\nTransaction.\n2. Except as required by law, rule or regulation or the rules of any securities exchange (subject to Section 3), the Company shall not disclose,\nand shall cause its Representatives not to disclose, at any time and whether or not the Company and the Potential Acquirer enter into a Potential\nTransaction (except to the extent the definitive documentation for a Potential Transaction supersedes this agreement), the Confidential Facts to any\nperson or entity except that the Company may disclose the Confidential Facts to its Representatives who need to know such information for the sole\npurpose of assisting the Company in the Permitted Purpose; provided that the Company shall inform each such Representative of the terms of this\nAgreement so far as it relates to the Company, and the Company shall be liable to the Potential Acquirer for any action or omission prohibited under\nthis Agreement by any of its Representatives.\n3. In the event that the Potential Acquirer or any of its Representatives is legally required or required by the rules of any securities exchange\nto disclose any Evaluation Material or the Company or any of its Representatives is legally required or required by the rules of any securities\nexchange to disclose the Confidential Facts the party so required will give the other party as promptly as practicable notice of such requirement so\nthat the other party may, at its own expense, seek an appropriate protective order or other remedy, and/or waive compliance with certain provisions\nof this Agreement, and the party so required will cooperate with the other party to obtain such protective order. In the event that such protective\norder or other remedy is not obtained or the other party waives compliance with the relevant provisions of this Agreement, the party so required will\nfurnish only that portion of the Evaluation Material or, as the case may be, Confidential Facts that is legally required to be disclosed and use its\nreasonable efforts, at the other party’s expense, to obtain assurances that confidential treatment will be accorded to such Evaluation Material or\nConfidential Facts.\n4. At any time upon request by the Company, the Potential Acquirer shall either, at the Potential Acquirers’ option, destroy or return to the\nCompany, as promptly as practicable after such request, all documents, materials and other items containing Evaluation Material without retaining\nany copies, extracts or other reproductions in whole or in part of such material, and, upon the written request of the Company, shall provide a\ncertification in form and substance reasonably satisfactory to the Company, signed by an officer of the Potential Acquirer, as to the completeness of\nthe destruction or return of such materials; provided that notwithstanding anything to the contrary herein and subject to the confidentiality\nobligations herein, each of the Potential Acquirer and its Representatives may retain (i) one copy of Evaluation Material to the extent required to\ncomply with the legal, regulatory or policy requirements, as well as (ii) any and all (a) emails and any attachments contained in such emails and\n(b) any electronic files, in each case, to the extent required to comply with, and automatically saved pursuant to, legal, regulatory or policy\nrequirements, including without limitation, any routine computer system back-up tapes, disks or other back-up storage devices. Compliance with this\nparagraph shall not relieve the Potential Acquirer of its other obligations under this Agreement.\n5. As a condition to any further discussions between the Company and the Potential Acquirer with respect to the Potential Transaction, and to\nthe provision of any Evaluation Material to the Potential Acquirer, the Potential Acquirer agrees that, until 18 months from the date of this\nAgreement, none of the (1) Potential Acquirer, (2) its affiliates or (3) any of the Potential Acquirer’s or such affiliates’ respective directors, officers,\nemployees or controlling persons that in the case of clauses (2) or (3) (i) have been made aware of this Agreement or who\n3\nhave otherwise received Evaluation Material or (ii) are acting on behalf of, at the direction of or with the knowledge of the Potential Acquirer or on\nbehalf of, at the direction of or with the knowledge of any of the affiliates of the Potential Acquirer who have received Evaluation Material or are\notherwise aware of this Agreement shall, without the prior consent of the Company, directly or indirectly, alone or jointly or in concert with any\nother person (including by providing financing to any other person), effect or seek, offer or propose (whether publicly or otherwise) to effect (a) the\nacquisition of record or beneficial ownership in excess of 1% of any securities or rights to acquire any securities of the Company or any of its\naffiliates, or of any rights or options to acquire such ownership (including from a person other than the Company); (b) the acquisition other than in\nthe ordinary course of business of any assets of or managed by, or interest in assets of or managed by, the Company or any of its affiliates (including\nany rights or options to acquire any such assets, including from a person other than the Company); (c) the commencement of any tender or exchange\noffer for any securities of the Company or any of its affiliates; (d) the participation in any “solicitation” of “proxies” (as such terms are used in the\nproxy rules of the U.S. Securities and Exchange Commission) or consents to vote or otherwise with respect to any voting securities of the Company\nor any of its affiliates; (e) the making of any public announcement with respect to any proposal for or offer of any extraordinary transaction\ninvolving the Company or any of its securities or assets (or those of its affiliates); (f) any other action, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company or any of its affiliates; (g) the formation, joining or in any way participating in a\n“group” (as defined under the U.S. Securities Exchange Act of 1934, as amended) with respect to the Company; or (h) any action which could\nreasonably be expected to require the Company to make a public announcement as to any of the foregoing; provided however that this Section 5\nshall cease to apply and shall be of no further force or effect in the case of (i) the public disclosure of a proposal for, or the commencement of, a\ntender or exchange offer, by a third-party (unaffiliated with the Potential Acquirer) for more than 50 percent of the Company’s capital stock or voting\nsecurities or (ii) the public disclosure by a third party (unaffiliated with the Potential Acquirer) of a proposal for, or the announcement of, or the\nentry into any agreement (including any letter of intent or similar instrument) for the acquisition (directly or indirectly, including by merger,\nconsolidation, reorganization or other business combination) of more than 50 percent of the Company’s capital stock, voting securities or\nconsolidated assets (including the stock of its subsidiaries or affiliates). The Potential Acquirer further agrees during such 18-month period not to\nrequest, directly or indirectly, that the Company (1) amend or waive any provision of this paragraph (including this sentence), or (2) otherwise\nconsent to any action inconsistent with any provision of this paragraph (including this sentence) or without the consent of the Company, take any\ninitiative with respect to the Company or any of its affiliates or securities which would reasonably be expected to require the Company or any such\naffiliate to make a public announcement regarding (1) such initiative, (2) any of the activities referred to in this paragraph, or (3) the possibility of a\ntransaction involving the Potential Acquirer or its affiliates.\n6. For the 18 month period following the date of this Agreement, none of the Potential Acquirer, and its affiliates or any of the Potential\nAcquirer’s or such affiliates” directors, officers, employees or controlling persons, in each case who have been made aware of this Agreement or who\nhave otherwise received Evaluation Material (“Restricted Persons”) shall directly or indirectly solicit for hire or engagement, or hire or engage, any\nindividual (a) who during the three months prior to such proposed solicitation, hire, or engagement, has been\n4\nengaged or employed by the Company as a senior officer or business unit leader of the Company or (b) who is an individual the Potential Acquirer\nor its Representatives have come in contact with in connection with the Permitted Purpose; provided, however, that Restricted Persons may make\ngeneral solicitations through public advertisements in the ordinary course of business and consistent with past practice and employ persons in\nconnection with such general solicitations; and provided further that Restricted Persons may solicit and hire persons who are no longer employees of\nthe Company at the time of such solicitation or hire or who approach Restricted Persons or anyone on their behalf without being encouraged to do so\nby Restricted Persons or anyone on their behalf.\n7. Except for those representations and warranties that may be made in a definitive agreement between the Company and the Potential\nAcquirer or its affiliates concerning a Potential Transaction (if and when executed), the Potential Acquirer acknowledges and agrees that neither the\nCompany nor any of its Representatives (a) has made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material or (b) shall have any liability whatsoever hereunder to the Potential Acquirer or its Representatives relating to or resulting from\nthe use of the Evaluation Material or any errors therein or omissions therefrom. Neither this Agreement nor disclosure of any Evaluation Material to\nthe Potential Acquirer or its Representatives shall be deemed by implication or otherwise to vest in the Potential Acquirer or its Representatives\nrights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the Permitted Purpose.\n8. The Potential Acquirer agrees that all contacts or communications by the Potential Acquirer or its Representatives with the Company\nregarding the subject matter of this Agreement, including as to any Evaluation Material or request for Evaluation Material or with respect to any\nPotential Transaction, shall be made through the Company’s financial advisors, CEO, CFO or other persons nominated by them. Accordingly, the\nPotential Acquirer agrees not to directly or indirectly contact or communicate with any other executive or employee of the Company concerning\nEvaluation Material or the Potential Transaction, or to seek any information in connection therewith from any such person, without the prior consent\nof the Company.\n9. Each of the parties acknowledges that the covenants contained in this Agreement are fundamental for the protection of the other’s\nlegitimate business and proprietary interests and that in the event of any violation by it of any such covenants, the other’s remedies at law may be\ninadequate. In the event of any violation or attempted violation of this Agreement, the non-violating party shall be entitled to seek specific\nperformance and injunctive relief or other equitable remedy without any showing of irreparable harm or damage, and the violating party hereby\nwaives, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond or other security in connection with\nany such remedy. Such remedies shall not be deemed to be the exclusive remedies for any breach of this Agreement but will be in addition to all\nother remedies available at law or in equity to the non-violating party. Any trade secrets included in the Evaluation Material will also be entitled to\nall of the protections and benefits under applicable trade secret law. The violating party hereby waives, and shall use all reasonable efforts to cause\nits Representatives to waive, any requirement that the non-violating party submit proof of the economic value of any trade secret or post a bond or\nother security.\n10. The Potential Acquirer understands that (a) the Company and its Representatives shall conduct the process for the Potential Transaction\nas they in their sole discretion shall determine (including, without limitation, negotiating with any prospective buyer, entering into definitive\nagreements without prior notice to the Potential Acquirer or any other person, and discontinuing discussions or negotiations with the Potential\nAcquirer or any other party at any time for any reason or no reason), (b) any procedures relating to such a Potential Transaction may be changed at\nany time without notice to the Potential Acquirer, (c) the Company shall have the right to reject or accept any potential buyer, proposal or offer, for\nany reason whatsoever, in its sole discretion, and (d) neither the Potential Acquirer nor any of its Representatives shall have any claims whatsoever\nagainst the Company or its Representatives arising out of or relating to the Potential Transaction (other than those against the parties to a definitive\nagreement with the Potential Acquirer in accordance with the terms thereof or under this Agreement). The Potential Acquirer and the Company\nacknowledge and agree that this Agreement is entered into with the express understanding that neither the Company nor the Potential Acquirer is\nobligated to enter into or to commence or continue any discussions or negotiations pertaining to the entry into any Potential Transaction, and that no\nsuch obligation shall arise unless and until a definitive agreement relating to a Potential Transaction is executed and delivered by the parties.\n11. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware. If for any reason\nany court of competent jurisdiction determines it is impossible to so construe any provision of this Agreement and holds that provision to be invalid,\nall other provisions of this Agreement shall remain in full force and effect. This Agreement was negotiated by sophisticated parties at arms length,\nand neither party hereto shall be construed as the drafting party against which the Agreement could be construed. Each of the parties hereby\nirrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware (and, absent jurisdiction in\nsuch courts, the United States Federal court located in the State of Delaware) for any actions, suits or proceedings arising out of or relating to this\nAgreement and the transactions contemplated hereby (and agrees not to commence any action, suit or proceeding relating thereto except in such\ncourts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to the its address set forth above shall be\neffective service of process for any action, suit or proceeding brought against such party in any such court). Each of the parties hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions\ncontemplated hereby in the courts of the State of Delaware (and, absent jurisdiction in such courts, the United States Federal court located in the\nState of Delaware), and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such\naction, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n12.  Except as otherwise provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or effect\nupon the two-year anniversary of this Agreement.\n13. This Agreement shall not be assignable by the Potential Acquirer without the consent of the Company. This Agreement shall be binding\nupon, inure to the benefit of, and be enforceable by and against the successors and assigns of each party to this Agreement.\n6\n14. The provisions of this Agreement shall be binding upon any person or entity currently or at any future time controlling, controlled by or\nunder common control with a party, and a party shall be liable to the other for any action or omission prohibited hereunder by any such person or\nentity.\n15. Neither the failure nor any delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and\nprivileges provided by law. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this\nagreement, and such invalid provision shall be deemed deleted from this Agreement to the minimum extent necessary to cure such violation.\n16.  Any amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be agreed\nto in a writing signed by the Company and the Potential Acquirer. This Agreement may be executed in counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission,\nby electronic mail in “portable document format” (“.pdf”) form., or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.\n17. This Agreement contains the entire agreement and supersedes all prior agreements and understandings, both written and oral, between\nthe parties with respect to the subject matter hereof and thereof.\nPlease execute and return one copy of this Agreement, which will constitute the parties agreement with respect to the subject matter hereof.\nYours truly,\nLINCARE HOLDINGS INC.\nBy: /s/ Paul G. Gabos\nName: Paul G. Gabos\nTitle: Chief Financial Officer\nAgreed to, confirmed and accepted as\nof the date first above written:\nLINDE AG\nBy: /s/ Georg Denoke /s/  Jens Liihring\nName: Georg Denoke Name: Jens Lithring\nTitle: Member of the Executive Board, CFO Title: Head of M&A	EX-99.(D)(2) 10 d374757dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nApril 15, 2011\nLinde AG\nKlosterhofstrasse 1\n80331 Munich\nGermany\nSubject: Confidentiality. Agreement\nLadies and Gentlemen:\nIn connection with the discussions between Lincare Holdings Inc. and/or its subsidiaries or affiliates (collectively the "Company"), and Linde\nAG\n(the "Potential Acquirer"), regarding the possibility of the Potential Acquirer or an affiliate thereof acquiring the Company (the "Potential\nTransaction"), the Company and/or its Representatives (as defined below) is intending to disclose, furnish or reveal to the Potential Acquirer and/or\nits Representatives, either orally, in writing or otherwise, or give the Potential Acquirer and its Representatives access to, certain information about\nthe business, financial condition, operations, assets and liabilities of the Company (the "Information"). As a condition to, and in consideration of, the\nCompany's and the Potential Acquirer's willingness to participate in those discussions and to permit the disclosure of Information to the Potential\nAcquirer and/or its Representatives, each of the parties requires the agreement of the other to the terms and conditions of this letter agreement (this\n"Agreement").\n1.\nAs used in this Agreement, the term "Evaluation Material" shall include all Information, whether (a) prepared by the Company, its\nRepresentatives or otherwise, (b) in written, oral, electronic or other form, or (c) prepared prior to, on or after the date of this Agreement, that\nis\nfurnished on or after the date hereof to the Potential Acquirer or any of its Representatives by or on behalf of the Company, regardless of the manner\nor medium in which such Evaluation Material is furnished, and such portions of other documentation, notes and materials prepared by the Potential\nAcquirer or any of its Representatives, containing or based in whole or in part on any Information furnished by or on behalf of the Company.\nEvaluation Material also shall include (i) the fact that the parties are considering the Potential Transaction, (ii) any discussions, negotiations and\ninvestigations regarding the terms, conditions or other facts with respect to the Potential Transaction, including the status thereof and the existence\nand terms of this Agreement, and (iii) that Evaluation Material has been made available to the Potential Acquirer (each "Confidential Facts").\nEvaluation Material other than Confidential Facts does not include information that: (x) is or becomes generally available to the public other than\nas\na result of disclosure by the Potential Acquirer or its Representatives, (y) becomes available to the Potential Acquirer or its Representatives on a non-\nconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by the Potential Acquirer\nor\nits Representatives to be bound in respect of such information by a confidentiality agreement with or other obligation of secrecy to the Company or\nanother party which is known by the Potential Acquirer to have such an agreement or obligation to the Company, or (z) is independently developed\nby the Potential Acquirer or its Representatives without reference to\nany of the Information, in the case of individuals who have received Information, as can reasonably be shown by the relevant records.\nWith respect to either party and its Representatives, Confidential Facts do not include information that is or becomes disclosed by the other\nparty or its Representatives (it being understood that disclosure by a party or its Representatives of Confidential Facts shall cause such disclosure\nto\nbe removed from Confidential Facts for the other party and its Representatives but not the disclosing party or its Representatives).\nThe Potential Acquirer shall use, and shall cause its Representatives to use, the Evaluation Material solely for the purpose of evaluating and,\nif\napplicable, pursuing the Potential Transaction (the "Permitted Purpose") and for no other purpose. Except as required by law or the rules of any\nsecurities exchange (subject to Section 3), the Potential Acquirer shall not disclose, and shall cause its Representatives not to disclose, at any time\nand whether or not the Company and the Potential Acquirer enter into a Potential Transaction (except after consummation of the Potential\nTransaction with the Potential Acquirer or its affiliates or to the extent the definitive documentation for a Potential Transaction supersedes\nthis\nagreement), any Evaluation Material to any person or entity (other than the Company) in any manner, or permit or assist any person or entity\n(other\nthan the Company) to use any Evaluation Material, except that the Potential Acquirer may disclose Evaluation Material to its Representatives who\nneed to know such information for the sole purpose of assisting, and solely to the extent necessary to permit such Representatives to assist,\nthe\nPotential Acquirer in the Permitted Purpose; provided that the Potential Acquirer shall inform each such Representative of the terms of this\nAgreement, and the Potential Acquirer shall be liable to the Company for any action or omission prohibited under this Agreement by any of its\nRepresentatives.\n"Representatives" of any person shall mean its affiliates and the directors, officers, employees, controlling persons, representatives, agents and\nadvisors of such person and its affiliates (including, without limitation, financial advisors, institutional debt financing sources, counsel and\naccountants). An "affiliate" of any person shall mean any other person that through one or more intermediaries, controls, is controlled by, or is under\ncommon control with, the first person. For purposes of this definition, "control" of a person means the possession of power to direct or cause the\ndirection of management and policies of such person, whether through ownership of voting securities, by contract or otherwise. The term "person" as\nused in this Agreement will be interpreted broadly to include the media (electronic, print or otherwise), the Internet, any governmental representative\nor authority or any corporation, company, limited liability company, enterprise, association, partnership, group or other entity or individual.\nWithout limiting the generality of the foregoing, the Potential Acquirer agrees that neither it nor any of its Representatives shall directly or\nindirectly discuss with or offer to any third party any position (whether through equity, as a co-investor, a joint venturer or otherwise) or potential\nposition in any possible transaction with the Company or any other form of direct or indirect participation in any such possible transaction or any\njoint acquisition of the Company by the Potential Acquirer and such third party without the prior written consent of the Company, except that the\nPotential Acquirer or its Representatives may do so in relation to prospective providers or arrangers of financing in relation to the Potential\nTransaction.\n2\n2. Except as required by law, rule or regulation or the rules of any securities exchange (subject to Section 3), the Company shall not disclose,\nand shall cause its Representatives not to disclose, at any time and whether or not the Company and the Potential Acquirer enter into a Potential\nTransaction (except to the extent the definitive documentation for a Potential Transaction supersedes this agreement), the Confidential Facts to any\nperson or entity except that the Company may disclose the Confidential Facts to its Representatives who need to know such information for the sole\npurpose of assisting the Company in the Permitted Purpose; provided that the Company shall inform each such Representative of the terms of this\nAgreement so far as it relates to the Company, and the Company shall be liable to the Potential Acquirer for any action or omission prohibited under\nthis Agreement by any of its Representatives.\n3.\nIn the event that the Potential Acquirer or any of its Representatives is legally required or required by the rules of any securities exchange\nto disclose any Evaluation Material or the Company or any of its Representatives is legally required or required by the rules of any securities\nexchange to disclose the Confidential Facts the party so required will give the other party as promptly as practicable notice of such requirement so\nthat the other party may, at its own expense, seek an appropriate protective order or other remedy, and/or waive compliance with certain provisions\nof this Agreement, and the party so required will cooperate with the other party to obtain such protective order. In the event that such protective\norder or other remedy is not obtained or the other party waives compliance with the relevant provisions of this Agreement, the party so required will\nfurnish only that portion of the Evaluation Material or, as the case may be, Confidential Facts that is legally required to be disclosed and use\nits\nreasonable efforts, at the other party's expense, to obtain assurances that confidential treatment will be accorded to such Evaluation Material or\nConfidential Facts.\n4. At any time upon request by the Company, the Potential Acquirer shall either, at the Potential Acquirers' option, destroy or return to the\nCompany, as promptly as practicable after such request, all documents, materials and other items containing Evaluation Material without retaining\nany copies, extracts or other reproductions in whole or in part of such material, and, upon the written request of the Company, shall provide\na\ncertification in form and substance reasonably satisfactory to the Company, signed by an officer of the Potential Acquirer, as to the completeness of\nthe destruction or return of such materials; provided that notwithstanding anything to the contrary herein and subject to the confidentiality\nobligations herein, each of the Potential Acquirer and its Representatives may retain (i) one copy of Evaluation Material to the extent required\nto\ncomply with the legal, regulatory or policy requirements, as well as (ii) any and all (a) emails and any attachments contained in such emails and\n(b) any electronic files, in each case, to the extent required to comply with, and automatically saved pursuant to, legal, regulatory or policy\nrequirements, including without limitation, any routine computer system back-up tapes, disks or other back-up storage devices. Compliance with this\nparagraph shall not relieve the Potential Acquirer of its other obligations under this Agreement.\n5. As a condition to any further discussions between the Company and the Potential Acquirer with respect to the Potential Transaction, and\nto\nthe\nprovision of any Evaluation Material to the Potential Acquirer, the Potential Acquirer agrees that, until 18 months from the date of this\nAgreement, none of the (1) Potential Acquirer, (2) its affiliates or (3) any of the Potential Acquirer's or such affiliates' respective directors, officers,\nemployees or controlling persons that in the case of clauses (2) or (3) (i) have been made aware of this Agreement or who\n3\nhave otherwise received Evaluation Material or (ii) are acting on behalf of, at the direction of or with the knowledge of the Potential Acquirer or on\nbehalf of, at the direction of or with the knowledge of any of the affiliates of the Potential Acquirer who have received Evaluation Material or are\notherwise aware of this Agreement shall, without the prior consent of the Company, directly or indirectly, alone or jointly or in concert with any\nother person (including by providing financing to any other person), effect or seek, offer or propose (whether publicly or otherwise) to effect (a) the\nacquisition of record or beneficial ownership in excess of 1% of any securities or rights to acquire any securities of the Company or any of its\naffiliates, or of any rights or options to acquire such ownership (including from a person other than the Company); (b) the acquisition other than\nin\nthe ordinary course of business of any assets of or managed by, or interest in assets of or managed by, the Company or any of its affiliates (including\nany rights or options to acquire any such assets, including from a person other than the Company); (c) the commencement of any tender or exchange\noffer for any securities of the Company or any of its affiliates; (d) the participation in any "solicitation" of "'proxies" (as such terms are used in the\nproxy rules of the U.S. Securities and Exchange Commission) or consents to vote or otherwise with respect to any voting securities of the Company\nor any of its affiliates; (e) the making of any public announcement with respect to any proposal for or offer of any extraordinary transaction\ninvolving the Company or any of its securities or assets (or those of its affiliates); (f) any other action, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company or any of its affiliates; (g) the formation, joining or in any way participating in a\n"group" (as defined under the U.S. Securities Exchange Act of 1934, as amended) with respect to the Company; or (h) any action which could\nreasonably be expected to require the Company to make a public announcement as to any of the foregoing; provided however that this Section\n5\nshall cease to apply and shall be of no further force or effect in the case of (i) the public disclosure of a proposal for, or the commencement of, a\ntender or exchange offer, by a third-party (unaffiliated with the Potential Acquirer) for more than 50 percent of the Company's capital stock\nor\nvoting\nsecurities or (ii) the public disclosure by a third party (unaffiliated with the Potential Acquirer) of a proposal for, or the announcement of, or the\nentry into any agreement (including any letter of intent or similar instrument) for the acquisition (directly or indirectly, including by merger,\nconsolidation, reorganization or other business combination) of more than 50 percent of the Company's capital stock, voting securities or\nconsolidated assets (including the stock of its subsidiaries or affiliates). The Potential Acquirer further agrees during such 18-month period not\nto\nrequest, directly or indirectly, that the Company (1) amend or waive any provision of this paragraph (including this sentence), or (2) otherwise\nconsent to any action inconsistent with any provision of this paragraph (including this sentence) or without the consent of the Company, take any\ninitiative with respect to the Company or any of its affiliates or securities which would reasonably be expected to require the Company or any such\naffiliate to make a public announcement regarding (1) such initiative, (2) any of the activities referred to in this paragraph, or (3) the possibility\nof\na\ntransaction involving the Potential Acquirer or its affiliates.\n6. For the 18 month period following the date of this Agreement, none of the Potential Acquirer, and its affiliates or any of the Potential\nAcquirer's or such affiliates' directors, officers, employees or controlling persons, in each case who have been made aware of this Agreement or who\nhave otherwise received Evaluation Material ("Restricted Persons") shall directly or indirectly solicit for hire or engagement, or hire or engage, any\nindividual (a) who during the three months prior to such proposed solicitation, hire, or engagement, has been\n4\nengaged or employed by the Company as a senior officer or business unit leader of the Company or (b) who is an individual the Potential Acquirer\nor its Representatives have come in contact with in connection with the Permitted Purpose; provided, however, that Restricted Persons may make\ngeneral solicitations through public advertisements in the ordinary course of business and consistent with past practice and employ persons in\nconnection with such general solicitations; and provided further that Restricted Persons may solicit and hire persons who are no longer employees of\nthe Company at the time of such solicitation or hire or who approach Restricted Persons or anyone on their behalf without being encouraged to do so\nby Restricted Persons or anyone on their behalf.\n7.\nExcept for those representations and warranties that may be made in a definitive agreement between the Company and the Potential\nAcquirer or its affiliates concerning a Potential Transaction (if and when executed), the Potential Acquirer acknowledges and agrees that neither the\nCompany nor any of its Representatives (a) has made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material or (b) shall have any liability whatsoever hereunder to the Potential Acquirer or its Representatives relating to or resulting from\nthe use of the Evaluation Material or any errors therein or omissions therefrom. Neither this Agreement nor disclosure of any Evaluation Material\nto\nthe Potential Acquirer or its Representatives shall be deemed by implication or otherwise to vest in the Potential Acquirer or its Representatives\nrights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the Permitted Purpose.\n8. The Potential Acquirer agrees that all contacts or communications by the Potential Acquirer or its Representatives with the Company\nregarding the subject matter of this Agreement, including as to any Evaluation Material or request for Evaluation Material or with respect to any\nPotential Transaction, shall be made through the Company's financial advisors, CEO, CFO or other persons nominated by them. Accordingly, the\nPotential Acquirer agrees not to directly or indirectly contact or communicate with any other executive or employee of the Company concerning\nEvaluation Material or the Potential Transaction, or to seek any information in connection therewith from any such person, without the prior consent\nof the Company.\n9. Each of the parties acknowledges that the covenants contained in this Agreement are fundamental for the protection of the other's\nlegitimate business and proprietary interests and that in the event of any violation by it of any such covenants, the other's remedies at law may\nbe\ninadequate. In the event of any violation or attempted violation of this Agreement, the non-violating party shall be entitled to seek specific\nperformance and injunctive relief or other equitable remedy without any showing of irreparable harm or damage, and the violating party hereby\nwaives, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond or other security in connection with\nany such remedy. Such remedies shall not be deemed to be the exclusive remedies for any breach of this Agreement but will be in addition to all\nother remedies available at law or in equity to the non-violating party. Any trade secrets included in the Evaluation Material will also be entitled to\nall of the protections and benefits under applicable trade secret law. The violating party hereby waives, and shall use all reasonable efforts to cause\nits Representatives to waive, any requirement that the non-violating party submit proof of the economic value of any trade secret or post a bond or\nother security.\n5\n10. The Potential Acquirer understands that (a) the Company and its Representatives shall conduct the process for the Potential Transaction\nas they in their sole discretion shall determine (including, without limitation, negotiating with any prospective buyer, entering into definitive\nagreements without prior notice to the Potential Acquirer or any other person, and discontinuing discussions or negotiations with the Potential\nAcquirer or any other party at any time for any reason or no reason), (b) any procedures relating to such a Potential Transaction may be changed at\nany time without notice to the Potential Acquirer, (c) the Company shall have the right to reject or accept any potential buyer, proposal or offer, for\nany reason whatsoever, in its sole discretion, and (d) neither the Potential Acquirer nor any of its Representatives shall have any claims whatsoever\nagainst the Company or its Representatives arising out of or relating to the Potential Transaction (other than those against the parties to a definitive\nagreement with the Potential Acquirer in accordance with the terms thereof or under this Agreement). The Potential Acquirer and the Company\nacknowledge and agree that this Agreement is entered into with the express understanding that neither the Company nor the Potential Acquirer\nis\nobligated to enter into or to commence or continue any discussions or negotiations pertaining to the entry into any Potential Transaction, and that no\nsuch obligation shall arise unless and until a definitive agreement relating to a Potential Transaction is executed and delivered by the parties.\n11. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware. If for any reason\nany court of competent jurisdiction determines it is impossible to so construe any provision of this Agreement and holds that provision to be invalid,\nall other provisions of this Agreement shall remain in full force and effect. This Agreement was negotiated by sophisticated parties at arms length,\nand neither party hereto shall be construed as the drafting party against which the Agreement could be construed. Each of the parties hereby\nirrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware (and, absent jurisdiction in\nsuch courts, the United States Federal court located in the State of Delaware) for any actions, suits or proceedings arising out of or relating to\nthis\nAgreement and the transactions contemplated hereby (and agrees not to commence any action, suit or proceeding relating thereto except in such\ncourts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to the its address set forth above shall\nbe\neffective service of process for any action, suit or proceeding brought against such party in any such court). Each of the parties hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions\ncontemplated\nhereby in the courts of the State of Delaware (and, absent jurisdiction in such courts, the United States Federal court located in\nthe\nState of Delaware), and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such\naction, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n12. Except as otherwise provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or effect\nupon the two-year anniversary of this Agreement.\n13.\nThis Agreement shall not be assignable by the Potential Acquirer without the consent of the Company. This Agreement shall be binding\nupon, inure to the benefit of, and be enforceable by and against the successors and assigns of each party to this Agreement.\n6\n14. The provisions of this Agreement shall be binding upon any person or entity currently or at any future time controlling, controlled by or\nunder common control with a party, and a party shall be liable to the other for any action or omission prohibited hereunder by any such person or\nentity.\n15.\nNeither the failure nor any delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and\nprivileges provided by law. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this\nagreement, and such invalid provision shall be deemed deleted from this Agreement to the minimum extent necessary to cure such violation.\n16.\nAny amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be\nagreed\nto in a writing signed by the Company and the Potential Acquirer This Agreement may be executed in counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission,\nby electronic mail in "portable document format" (".pdf") form., or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.\n17. This Agreement contains the entire agreement and supersedes all prior agreements and understandings, both written and oral, between\nthe parties with respect to the subject matter hereof and thereof.\n7\nPlease execute and return one copy of this Agreement, which will constitute the parties agreement with respect to the subject matter hereof.\nYours truly,\nLINCARE HOLDINGS INC.\nBy: /s/ Paul G. Gabos\nName: Paul G. Gabos\nTitle: Chief Financial Officer\nAgreed to, confirmed and accepted as\nof the date first above written:\nLINDE AG\nBy: /s/ Georg Denoke\n/s/ Jens Luhring\nName: Georg Denoke\nName: Jens Luhring\nTitle: Member of the Executive Board, CFO\nTitle: Head of M&A	EX-99.(D)(2) 10 d374757dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nApril 15, 2011\nLinde AG\nKlosterhofstrasse 1\n80331 Munich\nGermany\nSubject: Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with the discussions between Lincare Holdings Inc. and/or its subsidiaries or affiliates (collectively the “Company”), and Linde\nAG (the “Potential Acquirer”), regarding the possibility of the Potential Acquirer or an affiliate thereof acquiring the Company (the “Potential\nTransaction”), the Company and/or its Representatives (as defined below) is intending to disclose, furnish or reveal to the Potential Acquirer and/or\nits Representatives, either orally, in writing or otherwise, or give the Potential Acquirer and its Representatives access to, certain information about\nthe business, financial condition, operations, assets and liabilities of the Company (the “Information”). As a condition to, and in consideration of, the\nCompany’s and the Potential Acquirer’s willingness to participate in those discussions and to permit the disclosure of Information to the Potential\nAcquirer and/or its Representatives, each of the parties requires the agreement of the other to the terms and conditions of this letter agreement (this\n“Agreement”).\n1. As used in this Agreement, the term “Evaluation Material” shall include all Information, whether (a) prepared by the Company, its\nRepresentatives or otherwise, (b) in written, oral, electronic or other form, or (c) prepared prior to, on or after the date of this Agreement, that is\nfurnished on or after the date hereof to the Potential Acquirer or any of its Representatives by or on behalf of the Company, regardless of the manner\nor medium in which such Evaluation Material is furnished, and such portions of other documentation, notes and materials prepared by the Potential\nAcquirer or any of its Representatives, containing or based in whole or in part on any Information furnished by or on behalf of the Company.\nEvaluation Material also shall include (i) the fact that the parties are considering the Potential Transaction, (ii) any discussions, negotiations and\ninvestigations regarding the terms, conditions or other facts with respect to the Potential Transaction, including the status thereof and the existence\nand terms of this Agreement, and (iii) that Evaluation Material has been made available to the Potential Acquirer (each “Confidential Facts”).\nEvaluation Material other than Confidential Facts does not include information that: (x) is or becomes generally available to the public other than as\na result of disclosure by the Potential Acquirer or its Representatives, (y) becomes available to the Potential Acquirer or its Representatives on a non-\nconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by the Potential Acquirer or\nits Representatives to be bound in respect of such information by a confidentiality agreement with or other obligation of secrecy to the Company or\nanother party which is known by the Potential Acquirer to have such an agreement or obligation to the Company, or (z) is independently developed\nby the Potential Acquirer or its Representatives without reference to\nany of the Information, in the case of individuals who have received Information, as can reasonably be shown by the relevant records.\nWith respect to either party and its Representatives, Confidential Facts do not include information that is or becomes disclosed by the other\nparty or its Representatives (it being understood that disclosure by a party or its Representatives of Confidential Facts shall cause such disclosure to\nbe removed from Confidential Facts for the other party and its Representatives but not the disclosing party or its Representatives).\nThe Potential Acquirer shall use, and shall cause its Representatives to use, the Evaluation Material solely for the purpose of evaluating and, if\napplicable, pursuing the Potential Transaction (the “Permitted Purpose”) and for no other purpose. Except as required by law or the rules of any\nsecurities exchange (subject to Section 3), the Potential Acquirer shall not disclose, and shall cause its Representatives not to disclose, at any time\nand whether or not the Company and the Potential Acquirer enter into a Potential Transaction (except after consummation of the Potential\nTransaction with the Potential Acquirer or its affiliates or to the extent the definitive documentation for a Potential Transaction supersedes this\nagreement), any Evaluation Material to any person or entity (other than the Company) in any manner, or permit or assist any person or entity (other\nthan the Company) to use any Evaluation Material, except that the Potential Acquirer may disclose Evaluation Material to its Representatives who\nneed to know such information for the sole purpose of assisting, and solely to the extent necessary to permit such Representatives to assist, the\nPotential Acquirer in the Permitted Purpose; provided that the Potential Acquirer shall inform each such Representative of the terms of this\nAgreement, and the Potential Acquirer shall be liable to the Company for any action or omission prohibited under this Agreement by any of its\nRepresentatives.\n“Representatives” of any person shall mean its affiliates and the directors, officers, employees, controlling persons, representatives, agents and\nadvisors of such person and its affiliates (including, without limitation, financial advisors, institutional debt financing sources, counsel and\naccountants). An “affiliate” of any person shall mean any other person that through one or more intermediaries, controls, is controlled by, or is under\ncommon control with, the first person. For purposes of this definition, “control” of a person means the possession of power to direct or cause the\ndirection of management and policies of such person, whether through ownership of voting securities, by contract or otherwise. The term “person” as\nused in this Agreement will be interpreted broadly to include the media (electronic, print or otherwise), the Internet, any governmental representative\nor authority or any corporation, company, limited liability company, enterprise, association, partnership, group or other entity or individual.\nWithout limiting the generality of the foregoing, the Potential Acquirer agrees that neither it nor any of its Representatives shall directly or\nindirectly discuss with or offer to any third party any position (whether through equity, as a co-investor, a joint venturer or otherwise) or potential\nposition in any possible transaction with the Company or any other form of direct or indirect participation in any such possible transaction or any\njoint acquisition of the Company by the Potential Acquirer and such third party without the prior written consent of the Company, except that the\nPotential Acquirer or its Representatives may do so in relation to prospective providers or arrangers of financing in relation to the Potential\nTransaction.\n2\n2. Except as required by law, rule or regulation or the rules of any securities exchange (subject to Section 3), the Company shall not disclose,\nand shall cause its Representatives not to disclose, at any time and whether or not the Company and the Potential Acquirer enter into a Potential\nTransaction (except to the extent the definitive documentation for a Potential Transaction supersedes this agreement), the Confidential Facts to any\nperson or entity except that the Company may disclose the Confidential Facts to its Representatives who need to know such information for the sole\npurpose of assisting the Company in the Permitted Purpose; provided that the Company shall inform each such Representative of the terms of this\nAgreement so far as it relates to the Company, and the Company shall be liable to the Potential Acquirer for any action or omission prohibited under\nthis Agreement by any of its Representatives.\n3. In the event that the Potential Acquirer or any of its Representatives is legally required or required by the rules of any securities exchange\nto disclose any Evaluation Material or the Company or any of its Representatives is legally required or required by the rules of any securities\nexchange to disclose the Confidential Facts the party so required will give the other party as promptly as practicable notice of such requirement so\nthat the other party may, at its own expense, seek an appropriate protective order or other remedy, and/or waive compliance with certain provisions\nof this Agreement, and the party so required will cooperate with the other party to obtain such protective order. In the event that such protective\norder or other remedy is not obtained or the other party waives compliance with the relevant provisions of this Agreement, the party so required will\nfurnish only that portion of the Evaluation Material or, as the case may be, Confidential Facts that is legally required to be disclosed and use its\nreasonable efforts, at the other party’s expense, to obtain assurances that confidential treatment will be accorded to such Evaluation Material or\nConfidential Facts.\n4. At any time upon request by the Company, the Potential Acquirer shall either, at the Potential Acquirers’ option, destroy or return to the\nCompany, as promptly as practicable after such request, all documents, materials and other items containing Evaluation Material without retaining\nany copies, extracts or other reproductions in whole or in part of such material, and, upon the written request of the Company, shall provide a\ncertification in form and substance reasonably satisfactory to the Company, signed by an officer of the Potential Acquirer, as to the completeness of\nthe destruction or return of such materials; provided that notwithstanding anything to the contrary herein and subject to the confidentiality\nobligations herein, each of the Potential Acquirer and its Representatives may retain (i) one copy of Evaluation Material to the extent required to\ncomply with the legal, regulatory or policy requirements, as well as (ii) any and all (a) emails and any attachments contained in such emails and\n(b) any electronic files, in each case, to the extent required to comply with, and automatically saved pursuant to, legal, regulatory or policy\nrequirements, including without limitation, any routine computer system back-up tapes, disks or other back-up storage devices. Compliance with this\nparagraph shall not relieve the Potential Acquirer of its other obligations under this Agreement.\n5. As a condition to any further discussions between the Company and the Potential Acquirer with respect to the Potential Transaction, and to\nthe provision of any Evaluation Material to the Potential Acquirer, the Potential Acquirer agrees that, until 18 months from the date of this\nAgreement, none of the (1) Potential Acquirer, (2) its affiliates or (3) any of the Potential Acquirer’s or such affiliates’ respective directors, officers,\nemployees or controlling persons that in the case of clauses (2) or (3) (i) have been made aware of this Agreement or who\n3\nhave otherwise received Evaluation Material or (ii) are acting on behalf of, at the direction of or with the knowledge of the Potential Acquirer or on\nbehalf of, at the direction of or with the knowledge of any of the affiliates of the Potential Acquirer who have received Evaluation Material or are\notherwise aware of this Agreement shall, without the prior consent of the Company, directly or indirectly, alone or jointly or in concert with any\nother person (including by providing financing to any other person), effect or seek, offer or propose (whether publicly or otherwise) to effect (a) the\nacquisition of record or beneficial ownership in excess of 1% of any securities or rights to acquire any securities of the Company or any of its\naffiliates, or of any rights or options to acquire such ownership (including from a person other than the Company); (b) the acquisition other than in\nthe ordinary course of business of any assets of or managed by, or interest in assets of or managed by, the Company or any of its affiliates (including\nany rights or options to acquire any such assets, including from a person other than the Company); (c) the commencement of any tender or exchange\noffer for any securities of the Company or any of its affiliates; (d) the participation in any “solicitation” of “proxies” (as such terms are used in the\nproxy rules of the U.S . Securities and Exchange Commission) or consents to vote or otherwise with respect to any voting securities of the Company\nor any of its affiliates; (e) the making of any public announcement with respect to any proposal for or offer of any extraordinary transaction\ninvolving the Company or any of its securities or assets (or those of its affiliates); (f) any other action, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company or any of its affiliates; (g) the formation, joining or in any way participating in a\n“group” (as defined under the U.S . Securities Exchange Act of 1934, as amended) with respect to the Company; or (h) any action which could\nreasonably be expected to require the Company to make a public announcement as to any of the foregoing; provided however that this Section 5\nshall cease to apply and shall be of no further force or effect in the case of (i) the public disclosure of a proposal for, or the commencement of, a\ntender or exchange offer, by a third-party (unaffiliated with the Potential Acquirer) for more than 50 percent of the Company’s capital stock or voting\nsecurities or (ii) the public disclosure by a third party (unaffiliated with the Potential Acquirer) of a proposal for, or the announcement of, or the\nentry into any agreement (including any letter of intent or similar instrument) for the acquisition (directly or indirectly, including by merger,\nconsolidation, reorganization or other business combination) of more than 50 percent of the Company’s capital stock, voting securities or\nconsolidated assets (including the stock of its subsidiaries or affiliates). The Potential Acquirer further agrees during such 18-month period not to\nrequest, directly or indirectly, that the Company (1) amend or waive any provision of this paragraph (including this sentence), or (2) otherwise\nconsent to any action inconsistent with any provision of this paragraph (including this sentence) or without the consent of the Company, take any\ninitiative with respect to the Company or any of its affiliates or securities which would reasonably be expected to require the Company or any such\naffiliate to make a public announcement regarding (1) such initiative, (2) any of the activities referred to in this paragraph, or (3) the possibility of a\ntransaction involving the Potential Acquirer or its affiliates.\n6. For the 18 month period following the date of this Agreement, none of the Potential Acquirer, and its affiliates or any of the Potential\nAcquirer’s or such affiliates’ directors, officers, employees or controlling persons, in each case who have been made aware of this Agreement or who\nhave otherwise received Evaluation Material (“Restricted Persons”) shall directly or indirectly solicit for hire or engagement, or hire or engage, any\nindividual (a) who during the three months prior to such proposed solicitation, hire, or engagement, has been\n4\nengaged or employed by the Company as a senior officer or business unit leader of the Company or (b) who is an individual the Potential Acquirer\nor its Representatives have come in contact with in connection with the Permitted Purpose; provided, however, that Restricted Persons may make\ngeneral solicitations through public advertisements in the ordinary course of business and consistent with past practice and employ persons in\nconnection with such general solicitations; and provided further that Restricted Persons may solicit and hire persons who are no longer employees of\nthe Company at the time of such solicitation or hire or who approach Restricted Persons or anyone on their behalf without being encouraged to do so\nby Restricted Persons or anyone on their behalf.\n7. Except for those representations and warranties that may be made in a definitive agreement between the Company and the Potential\nAcquirer or its affiliates concerning a Potential Transaction (if and when executed), the Potential Acquirer acknowledges and agrees that neither the\nCompany nor any of its Representatives (a) has made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material or (b) shall have any liability whatsoever hereunder to the Potential Acquirer or its Representatives relating to or resulting from\nthe use of the Evaluation Material or any errors therein or omissions therefrom. Neither this Agreement nor disclosure of any Evaluation Material to\nthe Potential Acquirer or its Representatives shall be deemed by implication or otherwise to vest in the Potential Acquirer or its Representatives\nrights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the Permitted Purpose.\n8. The Potential Acquirer agrees that all contacts or communications by the Potential Acquirer or its Representatives with the Company\nregarding the subject matter of this Agreement, including as to any Evaluation Material or request for Evaluation Material or with respect to any\nPotential Transaction, shall be made through the Company’s financial advisors, CEO, CFO or other persons nominated by them. Accordingly, the\nPotential Acquirer agrees not to directly or indirectly contact or communicate with any other executive or employee of the Company concerning\nEvaluation Material or the Potential Transaction, or to seek any information in connection therewith from any such person, without the prior consent\nof the Company.\n9. Each of the parties acknowledges that the covenants contained in this Agreement are fundamental for the protection of the other’s\nlegitimate business and proprietary interests and that in the event of any violation by it of any such covenants, the other’s remedies at law may be\ninadequate. In the event of any violation or attempted violation of this Agreement, the non-violating party shall be entitled to seek specific\nperformance and injunctive relief or other equitable remedy without any showing of irreparable harm or damage, and the violating party hereby\nwaives, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond or other security in connection with\nany such remedy. Such remedies shall not be deemed to be the exclusive remedies for any breach of this Agreement but will be in addition to all\nother remedies available at law or in equity to the non-violating party. Any trade secrets included in the Evaluation Material will also be entitled to\nall of the protections and benefits under applicable trade secret law. The violating party hereby waives, and shall use all reasonable efforts to cause\nits Representatives to waive, any requirement that the non-violating party submit proof of the economic value of any trade secret or post a bond or\nother security.\n5\n10. The Potential Acquirer understands that (a) the Company and its Representatives shall conduct the process for the Potential Transaction\nas they in their sole discretion shall determine (including, without limitation, negotiating with any prospective buyer, entering into definitive\nagreements without prior notice to the Potential Acquirer or any other person, and discontinuing discussions or negotiations with the Potential\nAcquirer or any other party at any time for any reason or no reason), (b) any procedures relating to such a Potential Transaction may be changed at\nany time without notice to the Potential Acquirer, (c) the Company shall have the right to reject or accept any potential buyer, proposal or offer, for\nany reason whatsoever, in its sole discretion, and (d) neither the Potential Acquirer nor any of its Representatives shall have any claims whatsoever\nagainst the Company or its Representatives arising out of or relating to the Potential Transaction (other than those against the parties to a definitive\nagreement with the Potential Acquirer in accordance with the terms thereof or under this Agreement). The Potential Acquirer and the Company\nacknowledge and agree that this Agreement is entered into with the express understanding that neither the Company nor the Potential Acquirer is\nobligated to enter into or to commence or continue any discussions or negotiations pertaining to the entry into any Potential Transaction, and that no\nsuch obligation shall arise unless and until a definitive agreement relating to a Potential Transaction is executed and delivered by the parties.\n11. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware. If for any reason\nany court of competent jurisdiction determines it is impossible to so construe any provision of this Agreement and holds that provision to be invalid,\nall other provisions of this Agreement shall remain in full force and effect. This Agreement was negotiated by sophisticated parties at arms length,\nand neither party hereto shall be construed as the drafting party against which the Agreement could be construed. Each of the parties hereby\nirrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware (and, absent jurisdiction in\nsuch courts, the United States Federal court located in the State of Delaware) for any actions, suits or proceedings arising out of or relating to this\nAgreement and the transactions contemplated hereby (and agrees not to commence any action, suit or proceeding relating thereto except in such\ncourts, and further agrees that service of any process, summons, notice or document by U.S . registered mail to the its address set forth above shall be\neffective service of process for any action, suit or proceeding brought against such party in any such court). Each of the parties hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions\ncontemplated hereby in the courts of the State of Delaware (and, absent jurisdiction in such courts, the United States Federal court located in the\nState of Delaware), and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such\naction, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n12. Except as otherwise provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or effect\nupon the two-year anniversary of this Agreement.\n13. This Agreement shall not be assignable by the Potential Acquirer without the consent of the Company. This Agreement shall be binding\nupon, inure to the benefit of, and be enforceable by and against the successors and assigns of each party to this Agreement.\n6\n14. The provisions of this Agreement shall be binding upon any person or entity currently or at any future time controlling, controlled by or\nunder common control with a party, and a party shall be liable to the other for any action or omission prohibited hereunder by any such person or\nentity.\n15. Neither the failure nor any delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and\nprivileges provided by law. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this\nagreement, and such invalid provision shall be deemed deleted from this Agreement to the minimum extent necessary to cure such violation.\n16. Any amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be agreed\nto in a writing signed by the Company and the Potential Acquirer. This Agreement may be executed in counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission,\nby electronic mail in “portable document format” (“.pdf”) form., or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.\n17. This Agreement contains the entire agreement and supersedes all prior agreements and understandings, both written and oral, between\nthe parties with respect to the subject matter hereof and thereof.\n7\nPlease execute and return one copy of this Agreement, which will constitute the parties agreement with respect to the subject matter hereof.\nYours truly,\nLINCARE HOLDINGS INC.\nBy: /s/ Paul G. Gabos\nName: Paul G. Gabos\nTitle: Chief Financial Officer\nAgreed to, confirmed and accepted as\nof the date first above written:\nLINDE AG\nBy: /s/ Georg Denoke\n/s/ Jens Lühring\nName: Georg Denoke\nName: Jens Lühring\nTitle: Member of the Executive Board, CFO\nTitle: Head of M&A
7b000336caa6b4d83f97d836ff47a31b.pdf	effective_date jurisdiction party term	EX-10.18 10 dex1018.htm FORM OF CONFIDENTIAL INFORMATION AND NON-COMPETITION AGREEMENT\nExhibit 10.18\nVISTAPRINT USA, INC. CONFIDENTIAL INFORMATION\nAND NON-COMPETITION AGREEMENT\nFor good and valid consideration, the receipt and sufficiency of which I hereby acknowledge, VistaPrint USA, Inc. (the “Company”) and I hereby\nagree as follows:\n1. Definitions.\nFor purpose of this agreement, the following terms shall have this following meaning:\n(a) “Customer” shall mean any individual, firm, corporation, federal, state or other government agency or other entity (any of the foregoing\nbeing hereinafter referred to as “Person”) who purchased any of the Company’s products during the twelve month period immediately preceding the\neffective date by engagement as an employee or a consultant with the terminates, regardless of whether I induced or solicited such Person to give its\npatronage or business to the Company.\n(b) “Partner” shall mean any alliance, affiliate, distributor, partner, or other third parties with whom the Company identifies, markets to or\nserves Customers.\n(c) “Prospective Customer” and “Prospective Partner” shall mean any Person with whom or which negotiations or discussions occurred during\nthe 90 day period immediately preceding the effective date my engagement as an employee or consultant with the Company terminates, concerning\nthe purchase or joint marketing of any of the Company’s products by such Person or by such Person’s Customers, regardless of whether I solicited\nsuch Person to give its patronage or business to the Company.\n(d) “Competing Business” shall mean any business with offices in the United States, The United Kingdom, France or Germany, which\nprovides commercial printing products, such as business cards, stationary, brochures, presentation folders, sell sheets, postcards or the like, through\nthe use of Internet based technology. By example, some of the Company’s competitors include iPrint.com, Imagex.com, Kinko’s, Easiset.com,\nNewBeginnings.com, Printing.com, and Printonthenet.com.\n2. Company’s Business Operations.\nThe Company’s business operations focus on providing a wide array of print products used by businesses and institutions of all types, which\nproducts employ advanced Internet-based technology and processes. The Company has patents pending worldwide on certain aspects of technology,\nwhich is collectively known as and will hereinafter be referred to as the “VistaPrint Technology.” The Company has offices in the United States,\nFrance, German and the United Kingdom and markets and sells its products both nationally and internationally.\nDue to the highly competitive nature of the e-commerce enabled printing industry and market in which the Company operates, I understand\nthat the protections afforded to the Company by this Agreement, including but not limited to the protection of its Customers, Partners and other\nproprietary information, are critical to the success of the Company. I further recognize that the temporary restrictions imposed by this Agreement\nupon my ability to solicit Customers or Partners in competition with the Company, or to become employed by a competing business, are reasonable\nand necessary to protect the Company in this highly competitive marketplace.\n3. Proprietary Information.\nI recognize that my relationship with the company is one of high trust and confidence by reason of my access to and contact with the trade\nsecrets and confidential and proprietary information of the Company. I acknowledge that the identity of the Company’s Customers and Partners as\nwell as the suppliers who provide the Company with operational support are deemed to be confidential by the Company. I shall use my best efforts to\nprotect any and all confidential, proprietary, or secret information relating to the products, services, Customers, or business operations (including but\nnot limited to all\nVistaPrint Technology and other processes and systems used by the Company), or activities of the Company (collectively, Proprietary Information”).\nI shall not during my engagement as an employee or consultant by the Company or at any time thereafter, disclose to others or use for my own\nbenefit or for the benefit of another any Proprietary Information (whether or not learned, obtained or developed solely by me or jointly with others).\nMy undertakings and obligations under this section 3 shall not apply, however, to any such information that : (i) is or becomes in the public domain\nthrough no action or failure to act on my part, (ii) is generally disclosed to third parties by the Company without restrictions on such third parties or\n(iii) is approved for release by written authorization of the President of the Company. Upon termination of my engagement or at any other time upon\nrequest, I shall promptly deliver to the Company all Proprietary Information and all notes, handbooks, manuals, memoranda, notebooks, drawings,\nrecords, files, electronic data, and other documents (and all copies or reciprocations of such materials) in my possession or under the my control,\nwhether prepared by me or others that are or that contain Proprietary Information or other information or material that is secret, confidential, or\nproprietary to the Company, all of which I acknowledge is the sole property of the Company.\n4. Other Obligations.\nI acknowledge that the Company from time to time may have agreements with other persons or entities or with the U.S. Government, or\nagencies thereof, that impose obligations or restrictions on the Company regarding the confidential nature of such work. I agree to be bound by all\nsuch obligations of the company, including but not limited to the execution of such Non-Disclosure Agreements as may be required by those other\nentities.\n5. Nonsolicitation.\nDuring the course of my engagement as an employee or consultant with the Company and for a period of one (1) year after the termination of\nmy engagement with Company for any reason whatsoever, I shall not, otherwise than on behalf of the company, directly or indirectly as employee,\nowner, consultant, officer, director or partner, through stock ownership, investment of capital, lending of money or property, rendering of services or\notherwise, either alone or in association with others, or through family members, (i) solicit any of the employees of the Company to leave the\nemploy of the Company, (ii) solicit any Customer or Prospective Customer for any purpose that could reasonable considered to be competitive to the\nCompany, or (iii) solicit any Partner or Prospective Partner for any purpose that would be competitive with solicitations of such Partners by the\nCompany.\n6. Noncompetition.\n(a) During the course of my engagement as an employee or consultant with the Company, and for a period of 180 days after the termination of\nmy employment with the Company for any reason whatsoever, I shall not, without the express written consent of the Company engage or become\ninterested, directly or indirectly, as employee, owner, consultant, officer, director, or partner, through stock ownership, investment of capital, lending\nof money or property, rendering of services or otherwise, either alone or in association with others, or through family members, in the operation of\nany Competing Business (as defined in Section 1(d)) otherwise than on behalf of the Company.\n(b) My holding of any investment in any business or enterprise other than the Company shall not be deemed to be a violation of this section 5\nif such investment does not constitute over 5 percent of the outstanding issue of such security and I do not otherwise accept employment with, act as\na consultant to, become an officer, director or partner of, or otherwise become actively associated with the issuer of such security.\n7. Reasonableness.\nI recognize, acknowledge and agree that the company engages in extensive marketing and conducts business throughout the world and that the\nforegoing limitations are reasonable and properly required for the adequate protection of the Company’s business and do not preclude me from\npursuing my\nlivelihood. However, if any such limitation is found by any court of competent jurisdiction to be unenforceable because it extends for too long a\nperiod of time or over too great a range of activities or on too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic areas as to which it may be enforceable.\n8. Breach.\nIf I violate any provision of this Agreement, then the time limitations set forth in this Agreement shall be extended for a period of time equal to\nthe period of time during which such breach occurs, and, in the event the Company is required to seek relief from such breach before any court,\nboard or other tribunal, then the time limitations shall be extended for a period of time of time equal to the pendency of such proceedings, including\nall appeals. In the event the Company is required to take any action to enforce any provision of this agreement, and provided that the Company\nprevails in any such action, then I shall be liable for the Company’s reasonable expenses, including attorneys fees, associated with any such action.\n9. Liquidated Damages.\nI understand that in the event I breach any of the non-solicitation, nondisclosure, or non-competition provisions of this Agreement, the\nmonetary damages which the Company will sustain may be difficult to ascertain. I hereby agree that in the event of any such breach on my part, that\nI will be liable to the Company for liquidated damages in the amount of $25,000.00. I hereby acknowledge that said damages are reasonable, do not\nconstitute a penalty, and I further agree that I will not contest the reasonableness of said liquidated damages in any such action commenced by either\nparty with respect to this Agreement.\n10. Equitable Relief.\nI acknowledge that any breach of this Agreement by me may give rise to irreparable injury to the Company, which may not be adequately\ncompensated by damages. Accordingly, in the event of a breach or threatened breach of any Sections 3 through 6 of this Agreement by me, the\nCompany shall have, in addition to any remedies it may have at law, the right to an injunction or other equitable relief to prevent the violation of its\nrights hereunder.\n11. Miscellaneous.\n(a) Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a\nstate or federal court of competent jurisdiction located within the Commonwealth of Massachusetts, and the parties hereby consent to the personal\njurisdiction of such courts.\n(b) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of\nthis Agreement.\n(c) This Agreement supersedes all previous agreements, written or oral, between the Company and me relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by and agreement in writing signed by the\nCompany and me. I agree that any subsequent change or changes in the scope of or compensation for my engagement with the Company, the\nduration of my engagement with the Company, or the reasons for the cessation or termination of my engagement with the Company shall not affect\nthe validity or scope of this Agreement.\n(d) No delay or omission by the Company in exercising any rights under this Agreement shall operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and shall not be construed as a bar to or waiver of any\nright on any other occasion.\n(e) I expressly consent to be bound by the provisions of this Agreement for the benefit of the Company or any parent, subsidiary or affiliate or\nsuccessor thereof without the necessity for any separate execution of this Agreement in favor of such parent, subsidiary or affiliate.\n(f) I acknowledge and agree that the covenants made by me under this Agreement are to be construed as independent agreements on my part,\nand the existence of any claims or causes of action which I might have against the Company shall not constitute a defense to the enforcement by the\nCompany or its assigns of the provisions of this Agreement.\n(g) I acknowledge that my execution of this Agreement is supported by adequate consideration, including but not limited to the\ncommencement and continuation of my employment with the Company.\n(h) I acknowledge that I have had the opportunity to consult with legal counsel of my own choosing prior to my execution of this Agreement,\nand I understand the legal significance of this representation.\n(i) This Agreement is governed by the laws of the Commonwealth of Massachusetts without giving effect to the conflict of laws provisions\nthereof.\n(j) This Agreement shall ensure to the benefit of the Company’s successors, assigns, subsidiaries and affiliates.\nExecuted as a document under seal on the dates as below appear.\nDate:\nSignature:\nAgreed to and Accepted by VistaPrint USA, Inc.\nBy:\nDate:\nTitle:	EX-10.18 10 dex1018.htm FORM OF CONFIDENTIAL INFORMATION AND NON-COMPETITION AGREEMENT\nExhibit 10.18\nVISTAPRINT USA, INC. CONFIDENTIAL INFORMATION\nAND NON-COMPETITION AGREEMENT\nFor good and valid consideration, the receipt and sufficiency of which I hereby acknowledge, VistaPrint USA, Inc. (the “Company”) and I hereby\nagree as follows:\n1. Definitions.\nFor purpose of this agreement, the following terms shall have this following meaning:\n(a) “Customer” shall mean any individual, firm, corporation, federal, state or other government agency or other entity (any of the foregoing\nbeing hereinafter referred to as “Person”) who purchased any of the Company’s products during the twelve month period immediately preceding the\neffective date by engagement as an employee or a consultant with the terminates, regardless of whether I induced or solicited such Person to give its\npatronage or business to the Company.\n(b) “Partner” shall mean any alliance, affiliate, distributor, partner, or other third parties with whom the Company identifies, markets to or\nserves Customers.\n(c) “Prospective Customer” and “Prospective Partner” shall mean any Person with whom or which negotiations or discussions occurred during\nthe 90 day period immediately preceding the effective date my engagement as an employee or consultant with the Company terminates, concerning\nthe purchase or joint marketing of any of the Company’s products by such Person or by such Person’s Customers, regardless of whether I solicited\nsuch Person to give its patronage or business to the Company.\n(d) “Competing Business” shall mean any business with offices in the United States, The United Kingdom, France or Germany, which\nprovides commercial printing products, such as business cards, stationary, brochures, presentation folders, sell sheets, postcards or the like, through\nthe use of Internet based technology. By example, some of the Company’s competitors include iPrint.com, Imagex.com, Kinko’s, Easiset.com,\nNewBeginnings.com, Printing.com, and Printonthenet.com.\n2. Company’s Business Operations.\nThe Company’s business operations focus on providing a wide array of print products used by businesses and institutions of all types, which\nproducts employ advanced Internet-based technology and processes. The Company has patents pending worldwide on certain aspects of technology,\nwhich is collectively known as and will hereinafter be referred to as the “VistaPrint Technology.” The Company has offices in the United States,\nFrance, German and the United Kingdom and markets and sells its products both nationally and internationally.\nDue to the highly competitive nature of the e-commerce enabled printing industry and market in which the Company operates, I understand\nthat the protections afforded to the Company by this Agreement, including but not limited to the protection of its Customers, Partners and other\nproprietary information, are critical to the success of the Company. I further recognize that the temporary restrictions imposed by this Agreement\nupon my ability to solicit Customers or Partners in competition with the Company, or to become employed by a competing business, are reasonable\nand necessary to protect the Company in this highly competitive marketplace.\n3. Proprietary Information.\nI recognize that my relationship with the company is one of high trust and confidence by reason of my access to and contact with the trade\nsecrets and confidential and proprietary information of the Company. I acknowledge that the identity of the Company’s Customers and Partners as\nwell as the suppliers who provide the Company with operational support are deemed to be confidential by the Company. I shall use my best efforts to\nprotect any and all confidential, proprietary, or secret information relating to the products, services, Customers, or business operations (including but\nnot limited to all\nVistaPrint Technology and other processes and systems used by the Company), or activities of the Company (collectively, Proprietary Information”).\nI shall not during my engagement as an employee or consultant by the Company or at any time thereafter, disclose to others or use for my own\nbenefit or for the benefit of another any Proprietary Information (whether or not learned, obtained or developed solely by me or jointly with others).\nMy undertakings and obligations under this section 3 shall not apply, however, to any such information that : (i) is or becomes in the public domain\nthrough no action or failure to act on my part, (ii) is generally disclosed to third parties by the Company without restrictions on such third parties or\n(iii) is approved for release by written authorization of the President of the Company. Upon termination of my engagement or at any other time upon\nrequest, I shall promptly deliver to the Company all Proprietary Information and all notes, handbooks, manuals, memoranda, notebooks, drawings,\nrecords, files, electronic data, and other documents (and all copies or reciprocations of such materials) in my possession or under the my control,\nwhether prepared by me or others that are or that contain Proprietary Information or other information or material that is secret, confidential, or\nproprietary to the Company, all of which I acknowledge is the sole property of the Company.\n4.  Other Obligations.\nI acknowledge that the Company from time to time may have agreements with other persons or entities or with the U.S. Government, or\nagencies thereof, that impose obligations or restrictions on the Company regarding the confidential nature of such work. I agree to be bound by all\nsuch obligations of the company, including but not limited to the execution of such Non-Disclosure Agreements as may be required by those other\nentities.\n5. Nonsolicitation.\nDuring the course of my engagement as an employee or consultant with the Company and for a period of one (1) year after the termination of\nmy engagement with Company for any reason whatsoever, I shall not, otherwise than on behalf of the company, directly or indirectly as employee,\nowner, consultant, officer, director or partner, through stock ownership, investment of capital, lending of money or property, rendering of services or\notherwise, either alone or in association with others, or through family members, (i) solicit any of the employees of the Company to leave the\nemploy of the Company, (ii) solicit any Customer or Prospective Customer for any purpose that could reasonable considered to be competitive to the\nCompany, or (iii) solicit any Partner or Prospective Partner for any purpose that would be competitive with solicitations of such Partners by the\nCompany.\n6.  Noncompetition.\n(a) During the course of my engagement as an employee or consultant with the Company, and for a period of 180 days after the termination of\nmy employment with the Company for any reason whatsoever, I shall not, without the express written consent of the Company engage or become\ninterested, directly or indirectly, as employee, owner, consultant, officer, director, or partner, through stock ownership, investment of capital, lending\nof money or property, rendering of services or otherwise, either alone or in association with others, or through family members, in the operation of\nany Competing Business (as defined in Section 1(d)) otherwise than on behalf of the Company.\n(b) My holding of any investment in any business or enterprise other than the Company shall not be deemed to be a violation of this section 5\nif such investment does not constitute over 5 percent of the outstanding issue of such security and I do not otherwise accept employment with, act as\na consultant to, become an officer, director or partner of, or otherwise become actively associated with the issuer of such security.\n7. Reasonableness.\nI recognize, acknowledge and agree that the company engages in extensive marketing and conducts business throughout the world and that the\nforegoing limitations are reasonable and properly required for the adequate protection of the Company’s business and do not preclude me from\npursuing my\nlivelihood. However, if any such limitation is found by any court of competent jurisdiction to be unenforceable because it extends for too long a\nperiod of time or over too great a range of activities or on too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic areas as to which it may be enforceable.\n8. Breach.\nIf I violate any provision of this Agreement, then the time limitations set forth in this Agreement shall be extended for a period of time equal to\nthe period of time during which such breach occurs, and, in the event the Company is required to seek relief from such breach before any court,\nboard or other tribunal, then the time limitations shall be extended for a period of time of time equal to the pendency of such proceedings, including\nall appeals. In the event the Company is required to take any action to enforce any provision of this agreement, and provided that the Company\nprevails in any such action, then I shall be liable for the Company’s reasonable expenses, including attorneys fees, associated with any such action.\n9.  Liquidated Damages.\nI understand that in the event I breach any of the non-solicitation, nondisclosure, or non-competition provisions of this Agreement, the\nmonetary damages which the Company will sustain may be difficult to ascertain. I hereby agree that in the event of any such breach on my part, that\nI will be liable to the Company for liquidated damages in the amount of $25,000.00. I hereby acknowledge that said damages are reasonable, do not\nconstitute a penalty, and I further agree that I will not contest the reasonableness of said liquidated damages in any such action commenced by either\nparty with respect to this Agreement.\n10.  Equitable Relief.\nI acknowledge that any breach of this Agreement by me may give rise to irreparable injury to the Company, which may not be adequately\ncompensated by damages. Accordingly, in the event of a breach or threatened breach of any Sections 3 through 6 of this Agreement by me, the\nCompany shall have, in addition to any remedies it may have at law, the right to an injunction or other equitable relief to prevent the violation of its\nrights hereunder.\n11. Miscellaneous.\n(a) Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a\nstate or federal court of competent jurisdiction located within the Commonwealth of Massachusetts, and the parties hereby consent to the personal\njurisdiction of such courts.\n(b) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of\nthis Agreement.\n(c) This Agreement supersedes all previous agreements, written or oral, between the Company and me relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by and agreement in writing signed by the\nCompany and me. I agree that any subsequent change or changes in the scope of or compensation for my engagement with the Company, the\nduration of my engagement with the Company, or the reasons for the cessation or termination of my engagement with the Company shall not affect\nthe validity or scope of this Agreement.\n(d) No delay or omission by the Company in exercising any rights under this Agreement shall operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and shall not be construed as a bar to or waiver of any\nright on any other occasion.\n(e) I expressly consent to be bound by the provisions of this Agreement for the benefit of the Company or any parent, subsidiary or affiliate or\nsuccessor thereof without the necessity for any separate execution of this Agreement in favor of such parent, subsidiary or affiliate.\n(f) I acknowledge and agree that the covenants made by me under this Agreement are to be construed as independent agreements on my part,\nand the existence of any claims or causes of action which I might have against the Company shall not constitute a defense to the enforcement by the\nCompany or its assigns of the provisions of this Agreement.\n(g) I acknowledge that my execution of this Agreement is supported by adequate consideration, including but not limited to the\ncommencement and continuation of my employment with the Company.\n(h) T acknowledge that I have had the opportunity to consult with legal counsel of my own choosing prior to my execution of this Agreement,\nand I understand the legal significance of this representation.\n(i) This Agreement is governed by the laws of the Commonwealth of Massachusetts without giving effect to the conflict of laws provisions\nthereof.\n(j) This Agreement shall ensure to the benefit of the Company’s successors, assigns, subsidiaries and affiliates.\nExecuted as a document under seal on the dates as below appear.\nDate:\nSignature:\nAgreed to and Accepted by VistaPrint USA, Inc.\nBy: Date:\nTitle:	EX-10.18 10 dex 1018.htm FORM OF CONFIDENTIAL INFORMATION AND NON-COMPETITION AGREEMENT\nExhibit 10.18\nVISTAPRINT USA, INC. CONFIDENTIAL INFORMATION\nAND NON-COMPETITION AGREEMENT\nFor good and valid consideration, the receipt and sufficiency of which I hereby acknowledge, VistaPrint USA, Inc. (the "Company") and I hereby\nagree as follows:\n1. Definitions.\nFor purpose of this agreement, the following terms shall have this following meaning:\n(a) "Customer" shall mean any individual, firm, corporation, federal, state or other government agency or other entity (any of the foregoing\nbeing hereinafter referred to as "Person") who purchased any of the Company's products during the twelve month period immediately preceding the\neffective date by engagement as an employee or a consultant with the terminates, regardless of whether I induced or solicited such Person to give its\npatronage or business to the Company.\n(b) "Partner" shall mean any alliance, affiliate, distributor, partner, or other third parties with whom the Company identifies, markets to or\nserves Customers.\n(c) "Prospective Customer" and "Prospective Partner" shall mean any Person with whom or which negotiations or discussions occurred during\nthe 90 day period immediately preceding the effective date my engagement as an employee or consultant with the Company terminates, concerning\nthe purchase or joint marketing of any of the Company's products by such Person or by such Person's Customers, regardless of whether I solicited\nsuch Person to give its patronage or business to the Company.\n(d) "Competing Business" shall mean any business with offices in the United States, The United Kingdom, France or Germany, which\nprovides commercial printing products, such as business cards, stationary, brochures, presentation folders, sell sheets, postcards or the like, through\nthe use of Internet based technology. By example, some of the Company's competitors include iPrint.com, Imagex.com, Kinko's, Easiset.com,\nNewBeginnings.com Printing.com, and Printonthenet.com.\n2.\nCompany's Business Operations.\nThe Company's business operations focus on providing a wide array of print products used by businesses and institutions of all types, which\nproducts employ advanced Internet-based technology and processes. The Company has patents pending worldwide on certain aspects of technology,\nwhich is collectively known as and will hereinafter be referred to as the "VistaPrint Technology." The Company has offices in the United States,\nFrance, German and the United Kingdom and markets and sells its products both nationally and internationally.\nDue to the highly competitive nature of the e-commerce enabled printing industry and market in which the Company operates, I understand\nthat the protections afforded to the Company by this Agreement, including but not limited to the protection of its Customers, Partners and other\nproprietary information, are critical to the success of the Company. I further recognize that the temporary restrictions imposed by this Agreement\nupon my ability to solicit Customers or Partners in competition with the Company, or to become employed by a competing business, are reasonable\nand necessary to protect the Company in this highly competitive marketplace.\n3.\nProprietary Information.\nI recognize that my relationship with the company is one of high trust and confidence by reason of my access to and contact with the trade\nsecrets and confidential and proprietary information of the Company. I acknowledge that the identity of the Company's Customers and Partners as\nwell as the suppliers who provide the Company with operational support are deemed to be confidential by the Company. I shall use my best efforts\nto\nprotect any and all confidential, proprietary, or secret information relating to the products, services, Customers, or business operations (including but\nnot limited to all\nVistaPrint Technology and other processes and systems used by the Company), or activities of the Company (collectively, Proprietary Information").\nI shall not during my engagement as an employee or consultant by the Company or at any time thereafter, disclose to others or use for my own\nbenefit or for the benefit of another any Proprietary Information (whether or not learned, obtained or developed solely by me or jointly with others).\nMy undertakings and obligations under this section 3 shall not apply, however, to any such information that (i) is or becomes in the public domain\nthrough no action or failure to act on my part, (ii) is generally disclosed to third parties by the Company without restrictions on such third parties or\n(iii) is approved for release by written authorization of the President of the Company. Upon termination of my engagement or at any other time upon\nrequest, I shall promptly deliver to the Company all Proprietary Information and all notes, handbooks, manuals, memoranda, notebooks, drawings,\nrecords, files, electronic data, and other documents (and all copies or reciprocations of such materials) in my possession or under the my control,\nwhether prepared by me or others that are or that contain Proprietary Information or other information or material that is secret, confidential, or\nproprietary to the Company, all of which I acknowledge is the sole property of the Company.\n4.\nOther Obligations.\nI acknowledge that the Company from time to time may have agreements with other persons or entities or with the U.S. Government, or\nagencies thereof, that impose obligations or restrictions on the Company regarding the confidential nature of such work. I agree to be bound by all\nsuch obligations of the company, including but not limited to the execution of such Non-Disclosure Agreements as may be required by those other\nentities.\n5. Nonsolicitation.\nDuring the course of my engagement as an employee or consultant with the Company and for a period of one (1) year after the termination of\nmy engagement with Company for any reason whatsoever, I shall not, otherwise than on behalf of the company, directly or indirectly as employee,\nowner, consultant, officer, director or partner, through stock ownership, investment of capital, lending of money or property, rendering of services\nor\notherwise, either alone or in association with others, or through family members, (i) solicit any of the employees of the Company to leave the\nemploy of the Company, (ii) solicit any Customer or Prospective Customer for any purpose that could reasonable considered to be competitive to the\nCompany, or (iii) solicit any Partner or Prospective Partner for any purpose that would be competitive with solicitations of such Partners by the\nCompany.\n6. Noncompetition.\n(a) During the course of my engagement as an employee or consultant with the Company, and for a period of 180 days after the termination of\nmy employment with the Company for any reason whatsoever, I shall not, without the express written consent of the Company engage or become\ninterested, directly or indirectly, as employee, owner, consultant, officer, director, or partner, through stock ownership, investment of capital, lending\nof money or property, rendering of services or otherwise, either alone or in association with others, or through family members, in the operation of\nany Competing Business (as defined in Section 1(d)) otherwise than on behalf of the Company.\n(b) My holding of any investment in any business or enterprise other than the Company shall not be deemed to be a violation of this section 5\nif such investment does not constitute over 5 percent of the outstanding issue of such security and I do not otherwise accept employment with, act as\na consultant to, become an officer, director or partner of, or otherwise become actively associated with the issuer of such security.\n7. Reasonableness.\nI recognize, acknowledge and agree that the company engages in extensive marketing and conducts business throughout the world and that the\nforegoing limitations are reasonable and properly required for the adequate protection of the Company's business and do not preclude me from\npursuing my\nlivelihood. However, if any such limitation is found by any court of competent jurisdiction to be unenforceable because it extends for too long\na\nperiod of time or over too great a range of activities or on too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic areas as to which it may be enforceable.\n8.\nBreach.\nIf I violate any provision of this Agreement, then the time limitations set forth in this Agreement shall be extended for a period of time equal to\nthe period of time during which such breach occurs, and, in the event the Company is required to seek relief from such breach before any court,\nboard or other tribunal, then the time limitations shall be extended for a period of time of time equal to the pendency of such proceedings, including\nall appeals. In the event the Company is required to take any action to enforce any provision of this agreement, and provided that the Company\nprevails in any such action, then I shall be liable for the Company's reasonable expenses, including attorneys fees, associated with any such action.\n9.\nLiquidated Damages.\nI\nunderstand that in the event I breach any of the non-solicitation, nondisclosure, or non-competition provisions of this Agreement, the\nmonetary damages which the Company will sustain may be difficult to ascertain. I hereby agree that in the event of any such breach on my part, that\nI\nwill be liable to the Company for liquidated damages in the amount of $25,000.00. I hereby acknowledge that said damages are reasonable, do not\nconstitute a penalty, and I further agree that I will not contest the reasonableness of said liquidated damages in any such action commenced by either\nparty with respect to this Agreement.\n10. Equitable Relief.\nI acknowledge that any breach of this Agreement by me may give rise to irreparable injury to the Company, which may not be adequately\ncompensated by damages. Accordingly, in the event of a breach or threatened breach of any Sections 3 through 6 of this Agreement by me, the\nCompany shall have, in addition to any remedies it may have at law, the right to an injunction or other equitable relief to prevent the violation of its\nrights hereunder.\n11. Miscellaneous.\n(a) Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in\na\nstate or federal court of competent jurisdiction located within the Commonwealth of Massachusetts, and the parties hereby consent to the personal\njurisdiction of such courts.\n(b) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of\nthis Agreement.\n(c) This Agreement supersedes all previous agreements, written or oral, between the Company and me relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by and agreement in writing signed by the\nCompany and me. I agree that any subsequent change or changes in the scope of or compensation for my engagement with the Company, the\nduration of my engagement with the Company, or the reasons for the cessation or termination of my engagement with the Company shall not affect\nthe validity or scope of this Agreement.\n(d) No delay or omission by the Company in exercising any rights under this Agreement shall operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and shall not be construed as a bar to or waiver of any\nright on any other occasion.\n(e) I expressly consent to be bound by the provisions of this Agreement for the benefit of the Company or any parent, subsidiary or affiliate\nor\nsuccessor thereof without the necessity for any separate execution of this Agreement in favor of such parent, subsidiary or affiliate.\n(f) I acknowledge and agree that the covenants made by me under this Agreement are to be construed as independent agreements on my part,\nand the existence of any claims or causes of action which I might have against the Company shall not constitute a defense to the enforcement by the\nCompany or its assigns of the provisions of this Agreement.\n(g) I acknowledge that my execution of this Agreement is supported by adequate consideration, including but not limited to the\ncommencement and continuation of my employment with the Company.\n(h) I acknowledge that I have had the opportunity to consult with legal counsel of my own choosing prior to my execution of this Agreement,\nand I understand the legal significance of this representation\n(i) This Agreement is governed by the laws of the Commonwealth of Massachusetts without giving effect to the conflict of laws provisions\nthereof.\n(j) This Agreement shall ensure to the benefit of the Company's successors, assigns, subsidiaries and affiliates.\nExecuted as a document under seal on the dates as below appear.\nDate:\nSignature:\nAgreed to and Accepted by VistaPrint USA, Inc.\nBy:\nDate:\nTitle:	EX-10.18 10 dex1018.htm FORM OF CONFIDENTIAL INFORMATION AND NON-COMPETITION AGREEMENT\nExhibit 10.18\nVISTAPRINT USA, INC. CONFIDENTIAL INFORMATION\nAND NON-COMPETITION AGREEMENT\nFor good and valid consideration, the receipt and sufficiency of which I hereby acknowledge, VistaPrint USA, Inc. (the “Company”) and I hereby\nagree as follows:\n1. Definitions.\nFor purpose of this agreement, the following terms shall have this following meaning:\n(a) “Customer” shall mean any individual, firm, corporation, federal, state or other government agency or other entity (any of the foregoing\nbeing hereinafter referred to as “Person”) who purchased any of the Company’s products during the twelve month period immediately preceding the\neffective date by engagement as an employee or a consultant with the terminates, regardless of whether I induced or solicited such Person to give its\npatronage or business to the Company.\n(b) “Partner” shall mean any alliance, affiliate, distributor, partner, or other third parties with whom the Company identifies, markets to or\nserves Customers.\n(c) “Prospective Customer” and “Prospective Partner” shall mean any Person with whom or which negotiations or discussions occurred during\nthe 90 day period immediately preceding the effective date my engagement as an employee or consultant with the Company terminates, concerning\nthe purchase or joint marketing of any of the Company’s products by such Person or by such Person’s Customers, regardless of whether I solicited\nsuch Person to give its patronage or business to the Company.\n(d) “Competing Business” shall mean any business with offices in the United States, The United Kingdom, France or Germany, which\nprovides commercial printing products, such as business cards, stationary, brochures, presentation folders, sell sheets, postcards or the like, through\nthe use of Internet based technology. By example, some of the Company’s competitors include iPrint.com, Imagex.com, Kinko’s, Easiset.com,\nNewBeginnings.com, Printing.com, and Printonthenet.com.\n2. Company’s Business Operations.\nThe Company’s business operations focus on providing a wide array of print products used by businesses and institutions of all types, which\nproducts employ advanced Internet-based technology and processes. The Company has patents pending worldwide on certain aspects of technology,\nwhich is collectively known as and will hereinafter be referred to as the “VistaPrint Technology.” The Company has offices in the United States,\nFrance, German and the United Kingdom and markets and sells its products both nationally and internationally.\nDue to the highly competitive nature of the e-commerce enabled printing industry and market in which the Company operates, I understand\nthat the protections afforded to the Company by this Agreement, including but not limited to the protection of its Customers, Partners and other\nproprietary information, are critical to the success of the Company. I further recognize that the temporary restrictions imposed by this Agreement\nupon my ability to solicit Customers or Partners in competition with the Company, or to become employed by a competing business, are reasonable\nand necessary to protect the Company in this highly competitive marketplace.\n3. Proprietary Information.\nI recognize that my relationship with the company is one of high trust and confidence by reason of my access to and contact with the trade\nsecrets and confidential and proprietary information of the Company. I acknowledge that the identity of the Company’s Customers and Partners as\nwell as the suppliers who provide the Company with operational support are deemed to be confidential by the Company. I shall use my best efforts to\nprotect any and all confidential, proprietary, or secret information relating to the products, services, Customers, or business operations (including but\nnot limited to all\nVistaPrint Technology and other processes and systems used by the Company), or activities of the Company (collectively, Proprietary Information”).\nI shall not during my engagement as an employee or consultant by the Company or at any time thereafter, disclose to others or use for my own\nbenefit or for the benefit of another any Proprietary Information (whether or not learned, obtained or developed solely by me or jointly with others).\nMy undertakings and obligations under this section 3 shall not apply, however, to any such information that : (i) is or becomes in the public domain\nthrough no action or failure to act on my part, (ii) is generally disclosed to third parties by the Company without restrictions on such third parties or\n(iii) is approved for release by written authorization of the President of the Company. Upon termination of my engagement or at any other time upon\nrequest, I shall promptly deliver to the Company all Proprietary Information and all notes, handbooks, manuals, memoranda, notebooks, drawings,\nrecords, files, electronic data, and other documents (and all copies or reciprocations of such materials) in my possession or under the my control,\nwhether prepared by me or others that are or that contain Proprietary Information or other information or material that is secret, confidential, or\nproprietary to the Company, all of which I acknowledge is the sole property of the Company.\n4. Other Obligations.\nI acknowledge that the Company from time to time may have agreements with other persons or entities or with the U.S. Government, or\nagencies thereof, that impose obligations or restrictions on the Company regarding the confidential nature of such work. I agree to be bound by all\nsuch obligations of the company, including but not limited to the execution of such Non-Disclosure Agreements as may be required by those other\nentities.\n5. Nonsolicitation.\nDuring the course of my engagement as an employee or consultant with the Company and for a period of one (1) year after the termination of\nmy engagement with Company for any reason whatsoever, I shall not, otherwise than on behalf of the company, directly or indirectly as employee,\nowner, consultant, officer, director or partner, through stock ownership, investment of capital, lending of money or property, rendering of services or\notherwise, either alone or in association with others, or through family members, (i) solicit any of the employees of the Company to leave the\nemploy of the Company, (ii) solicit any Customer or Prospective Customer for any purpose that could reasonable considered to be competitive to the\nCompany, or (iii) solicit any Partner or Prospective Partner for any purpose that would be competitive with solicitations of such Partners by the\nCompany.\n6. Noncompetition.\n(a) During the course of my engagement as an employee or consultant with the Company, and for a period of 180 days after the termination of\nmy employment with the Company for any reason whatsoever, I shall not, without the express written consent of the Company engage or become\ninterested, directly or indirectly, as employee, owner, consultant, officer, director, or partner, through stock ownership, investment of capital, lending\nof money or property, rendering of services or otherwise, either alone or in association with others, or through family members, in the operation of\nany Competing Business (as defined in Section 1(d)) otherwise than on behalf of the Company.\n(b) My holding of any investment in any business or enterprise other than the Company shall not be deemed to be a violation of this section 5\nif such investment does not constitute over 5 percent of the outstanding issue of such security and I do not otherwise accept employment with, act as\na consultant to, become an officer, director or partner of, or otherwise become actively associated with the issuer of such security.\n7. Reasonableness.\nI recognize, acknowledge and agree that the company engages in extensive marketing and conducts business throughout the world and that the\nforegoing limitations are reasonable and properly required for the adequate protection of the Company’s business and do not preclude me from\npursuing my\nlivelihood. However, if any such limitation is found by any court of competent jurisdiction to be unenforceable because it extends for too long a\nperiod of time or over too great a range of activities or on too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic areas as to which it may be enforceable.\n8. Breach.\nIf I violate any provision of this Agreement, then the time limitations set forth in this Agreement shall be extended for a period of time equal to\nthe period of time during which such breach occurs, and, in the event the Company is required to seek relief from such breach before any court,\nboard or other tribunal, then the time limitations shall be extended for a period of time of time equal to the pendency of such proceedings, including\nall appeals. In the event the Company is required to take any action to enforce any provision of this agreement, and provided that the Company\nprevails in any such action, then I shall be liable for the Company’s reasonable expenses, including attorneys fees, associated with any such action.\n9. Liquidated Damages.\nI understand that in the event I breach any of the non-solicitation, nondisclosure, or non-competition provisions of this Agreement, the\nmonetary damages which the Company will sustain may be difficult to ascertain. I hereby agree that in the event of any such breach on my part, that\nI will be liable to the Company for liquidated damages in the amount of $25,000.00. I hereby acknowledge that said damages are reasonable, do not\nconstitute a penalty, and I further agree that I will not contest the reasonableness of said liquidated damages in any such action commenced by either\nparty with respect to this Agreement.\n10. Equitable Relief.\nI acknowledge that any breach of this Agreement by me may give rise to irreparable injury to the Company, which may not be adequately\ncompensated by damages. Accordingly, in the event of a breach or threatened breach of any Sections 3 through 6 of this Agreement by me, the\nCompany shall have, in addition to any remedies it may have at law, the right to an injunction or other equitable relief to prevent the violation of its\nrights hereunder.\n11. Miscellaneous.\n(a) Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a\nstate or federal court of competent jurisdiction located within the Commonwealth of Massachusetts, and the parties hereby consent to the personal\njurisdiction of such courts.\n(b) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of\nthis Agreement.\n(c) This Agreement supersedes all previous agreements, written or oral, between the Company and me relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by and agreement in writing signed by the\nCompany and me. I agree that any subsequent change or changes in the scope of or compensation for my engagement with the Company, the\nduration of my engagement with the Company, or the reasons for the cessation or termination of my engagement with the Company shall not affect\nthe validity or scope of this Agreement.\n(d) No delay or omission by the Company in exercising any rights under this Agreement shall operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and shall not be construed as a bar to or waiver of any\nright on any other occasion.\n(e) I expressly consent to be bound by the provisions of this Agreement for the benefit of the Company or any parent, subsidiary or affiliate or\nsuccessor thereof without the necessity for any separate execution of this Agreement in favor of such parent, subsidiary or affiliate.\n(f) I acknowledge and agree that the covenants made by me under this Agreement are to be construed as independent agreements on my part,\nand the existence of any claims or causes of action which I might have against the Company shall not constitute a defense to the enforcement by the\nCompany or its assigns of the provisions of this Agreement.\n(g) I acknowledge that my execution of this Agreement is supported by adequate consideration, including but not limited to the\ncommencement and continuation of my employment with the Company.\n(h) I acknowledge that I have had the opportunity to consult with legal counsel of my own choosing prior to my execution of this Agreement,\nand I understand the legal significance of this representation.\n(i) This Agreement is governed by the laws of the Commonwealth of Massachusetts without giving effect to the conflict of laws provisions\nthereof.\n(j) This Agreement shall ensure to the benefit of the Company’s successors, assigns, subsidiaries and affiliates.\nExecuted as a document under seal on the dates as below appear.\nDate:\nSignature:\nAgreed to and Accepted by VistaPrint USA, Inc.\nBy:\nDate:\nTitle:
7c2d01f37f271540ebc035d46ee312cd.pdf	effective_date jurisdiction party term	EX-10.17 9 dex1017.htm FORM OF INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.17\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the “Company”), and\n(the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property\nof the Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or\nothers, which shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the\nEmployee only in the performance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the\nCompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign\ncertain classes of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules\nand/or the Company agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and\nforeign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is\nunable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be\nentitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and\nappoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take\nany and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the\nconditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n-2-\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing\nsigned by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation after the\nsigning of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of\nsuch transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in\naddition to such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding\nwhich is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of\nthe Commonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee\neach consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate:\nBy:\nDate:\n-3-	EX-10.17 9 dex1017.htm FORM OF INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.17\nINVENTION AND NON-DISCI.OSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the “Company™), and (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property\nof the Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or\nothers, which shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the\nEmployee only in the performance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the\nCompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n \n \n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign\ncertain classes of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules\nand/or the Company agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and\nforeign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is\nunable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be\nentitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and\nappoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take\nany and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the\nconditions described in this sentence.\n3.  Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4.  United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n_2-\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing\nsigned by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation after the\nsigning of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of\nsuch transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in\naddition to such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding\nwhich is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of\nthe Commonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee\neach consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate: By:\nDate:	EX-10.17 9 FORM OF INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.17\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the "Company"), and\n(the "Employee").\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1.\nProprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property\nof the Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or\nothers, which shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the\nEmployee only in the performance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the\nCompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as "Developments")\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company's\npremises and not using the Company's tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign\ncertain classes of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules\nand/or the Company agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and\nforeign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is\nunable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be\nentitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and\nappoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take\nany and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the\nconditions described in this sentence.\n3.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5.\nNo Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n- 2\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing\nsigned by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation after the\nsigning of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of\nsuch transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in\naddition to such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding\nwhich is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court\nof\nthe Commonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee\neach consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate:\nBy:\nDate:\n3	EX-10.17 9 dex1017.htm FORM OF INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.17\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the “Company”), and\n(the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property\nof the Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or\nothers, which shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the\nEmployee only in the performance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the\nCompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign\ncertain classes of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules\nand/or the Company agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and\nforeign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is\nunable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be\nentitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and\nappoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take\nany and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the\nconditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n-2-\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing\nsigned by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation after the\nsigning of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of\nsuch transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in\naddition to such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding\nwhich is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of\nthe Commonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee\neach consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate:\nBy:\nDate:\n-3-
7c829782f18b4e438aad3f8303c8b6f7.pdf	effective_date jurisdiction party term	EX-10.18 2 a11-25732_1ex10d18.htm EX-10.18\nExhibit 10.18\nUSANA HEALTH SCIENCES, INC.\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration of employment or continued employment by USANA Health Sciences, Inc. or any of its affiliates or subsidiaries\n(collectively, “USANA”), the compensation paid by USANA from time to time, and other good and valuable consideration, the undersigned\nemployee of USANA hereby represents to and agrees with USANA as follows:\n1. Confidential Information. I understand that USANA owns or might acquire confidential or secret information (“Confidential\nInformation”) that is valuable to USANA’s business. Confidential Information includes but is not limited to trade secrets, copyrighted material,\nwritten material, pictures, logos, processes, formulas, computer programs, data, know-how, inventions, improvements, techniques, marketing\nplans, product plans, strategies, forecasts, supplier information, customer lists, and any other type of information, which is not generally known\nand is owned by USANA or its customers or suppliers. Confidential information specifically refers to information I may view or have access to\nor information I create or assist in creating as part of my job at USANA.\n2.\nAssignment of Confidential Information and Inventions. I specifically agree that work I complete as an employee of USANA\nis work made for hire and all rights in the work belong to USANA. In that regard, I hereby assign to USANA all of my rights in all Confidential\nInformation, including all discoveries, inventions and other technology, all works of authorship, all data and information, and all intellectual\nproperty rights therein, which are made, discovered, developed, created, or conceived, in whole or in part, previously or hereafter by me\n(i) during the course of and within the scope of my employment with USANA, or (b) with the aid of Confidential Information or the facilities,\nresources or property of USANA.\n3.\nConfidentiality and Non-Disclosure. I understand that my employment with USANA creates a relationship of trust and\nconfidence between me and USANA with respect to the Confidential Information about which I may learn or that I help to develop or that is\notherwise disclosed to me by USANA during the period of my employment with USANA. This is especially true where USANA might share\nwith me and other employees USANA’s plans to introduce new products or programs. At all times during and after my employment with\nUSANA, I will keep in strict confidence all Confidential Information and I will not use or disclose any Confidential Information, nor permit\nothers to use or disclose it in any way, without USANA’s written permission, except as may be necessary to perform my duties as a USANA\nemployee.\nI acknowledge and agree that USANA is the sole and exclusive owner of all rights in and to its Confidential Information, and I agree\nthat upon termination of my employment with USANA I will immediately return to USANA all Confidential Information in my possession, as\nwell as any and all copies, reproductions or summaries thereof.\n4.\nNon-Solicitation. I agree that during my period of employment with USANA, and for a period of [one] year thereafter, I will\nnot directly or indirectly (a) call on, solicit, take away, or attempt to take away for my benefit or the benefit of any other person or entity, any\ncustomer, supplier, or client of USANA, or (b) solicit, take away, or attempt to take away, for my benefit or the benefit of any other person or\nentity, any employee or officer of USANA.\n5.\nNon-Competition. In exchange for the benefits of continued employment, I agree not to accept employment with, engage in or\nparticipate, directly or indirectly, individually or as an officer, director, employee, shareholder, consultant, partner, joint venture, agent, equity\nowner, distributor or in any other capacity whatsoever, with any direct sales or multi-level marketing company that competes with USANA,\nwhether for market share of products or for distributors in territory in which USANA is doing business. The restrictions set forth in this\nparagraph shall remain in effect during my employment with USANA and during a period of six months following the termination of my\nemployment. Within fifteen days of termination of my employment, USANA shall notify me whether it elects to release me from the obligations\nset forth in this paragraph. For the period following the termination of employment during which the restrictive covenants in this paragraph\nremain in effect, USANA shall pay me a sum equal to fifty percent of my base salary at termination of employment, less applicable withholding\ntaxes and excluding all incentive compensation and other benefit payments. Payment may be made in periodic installments in accordance with\nUSANA’s regular payroll practices.\n6.\nNon-Disparagement. I will not in an way, directly or indirectly, at any time during employment or after either voluntary or\ninvoluntary employment termination, commercially disparage USANA, its products, employees or distributors.\n7.\nNo Contract of Employment. I acknowledge and understand that (i) this Agreement is not an employment agreement and does\nnot give me the right to be employed by USANA in any capacity, and (ii) nothing in this Agreement is intended to alter or change the terms or\nduration of my employment with USANA. I also understand that this Agreement does not supersede, void or otherwise limit USANA’s\nemployee policies relating to the confidentiality of business information as stated in the USANA Employee Handbook or my obligation as an\nemployee of USANA to adhere to these policies.\n8.\nGeneral. I acknowledge and agree that:\na.\nDue to the unique nature of this Agreement and my obligations regarding non-disclosure, non-use and assignment of\nConfidential Information and inventions, monetary damages alone will be an inadequate remedy for my breach of such obligations. As a result,\nin the event of my breach of this Agreement, I agree that USANA shall be entitled to obtain injunctive and other equitable relief to protect the\nconfidential nature of its Confidential Information, in addition to all other remedies which may be available at law or otherwise.\nb.\nThis Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah and the parties\nagree to submit to the exclusive jurisdiction of the courts of the State of Utah to resolve any litigation to enforce this Agreement.\nc.\nIf any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable,\nthe same shall be deemed severed from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of\nthis Agreement.\nThis Agreement will be effective as of the first date of my employment with USANA, namely\n,\n20.\n2\nEMPLOYEE\nUSANA Health Sciences, Inc.\nBy:\n(Employee’s Signature)\nJames Bramble\nName:\nTitle:\n(please print)\nGeneral Counsel\nDated:\nDated:\n3	EX-10.18 2 a11-25732_1ex10d18.htm EX-10.18\nExhibit 10.18\nUSANA HEALTH SCIENCES, INC.\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration of employment or continued employment by USANA Health Sciences, Inc. or any of its affiliates or subsidiaries\n(collectively, “USANA”), the compensation paid by USANA from time to time, and other good and valuable consideration, the undersigned\nemployee of USANA hereby represents to and agrees with USANA as follows:\n1. Confidential Information. I understand that USANA owns or might acquire confidential or secret information (“Confidential\nInformation”) that is valuable to USANA’s business. Confidential Information includes but is not limited to trade secrets, copyrighted material,\nwritten material, pictures, logos, processes, formulas, computer programs, data, know-how, inventions, improvements, techniques, marketing\nplans, product plans, strategies, forecasts, supplier information, customer lists, and any other type of information, which is not generally known\nand is owned by USANA or its customers or suppliers. Confidential information specifically refers to information I may view or have access to\nor information I create or assist in creating as part of my job at USANA.\n2. Assignment of Confidential Information and Inventions. I specifically agree that work I complete as an employee of USANA\nis work made for hire and all rights in the work belong to USANA. In that regard, I hereby assign to USANA all of my rights in all Confidential\nInformation, including all discoveries, inventions and other technology, all works of authorship, all data and information, and all intellectual\nproperty rights therein, which are made, discovered, developed, created, or conceived, in whole or in part, previously or hereafter by me\n(i) during the course of and within the scope of my employment with USANA, or (b) with the aid of Confidential Information or the facilities,\nresources or property of USANA.\n3. Confidentiality and Non-Disclosure. I understand that my employment with USANA creates a relationship of trust and\nconfidence between me and USANA with respect to the Confidential Information about which I may learn or that I help to develop or that is\notherwise disclosed to me by USANA during the period of my employment with USANA. This is especially true where USANA might share\nwith me and other employees USANA’s plans to introduce new products or programs. At all times during and after my employment with\nUSANA, I will keep in strict confidence all Confidential Information and I will not use or disclose any Confidential Information, nor permit\nothers to use or disclose it in any way, without USANA’s written permission, except as may be necessary to perform my duties as a USANA\nemployee.\nI acknowledge and agree that USANA is the sole and exclusive owner of all rights in and to its Confidential Information, and I agree\nthat upon termination of my employment with USANA I will immediately return to USANA all Confidential Information in my possession, as\nwell as any and all copies, reproductions or summaries thereof.\n4. Non-Solicitation. I agree that during my period of employment with USANA, and for a period of [one] year thereafter, I will\nnot directly or indirectly (a) call on, solicit, take away, or attempt to take away for my benefit or the benefit of any other person or entity, any\n \ncustomer, supplier, or client of USANA, or (b) solicit, take away, or attempt to take away, for my benefit or the benefit of any other person or\nentity, any employee or officer of USANA.\n5. Non-Competition. In exchange for the benefits of continued employment, I agree not to accept employment with, engage in or\nparticipate, directly or indirectly, individually or as an officer, director, employee, shareholder, consultant, partner, joint venture, agent, equity\nowner, distributor or in any other capacity whatsoever, with any direct sales or multi-level marketing company that competes with USANA,\nwhether for market share of products or for distributors in territory in which USANA is doing business. The restrictions set forth in this\nparagraph shall remain in effect during my employment with USANA and during a period of six months following the termination of my\nemployment. Within fifteen days of termination of my employment, USANA shall notify me whether it elects to release me from the obligations\nset forth in this paragraph. For the period following the termination of employment during which the restrictive covenants in this paragraph\nremain in effect, USANA shall pay me a sum equal to fifty percent of my base salary at termination of employment, less applicable withholding\ntaxes and excluding all incentive compensation and other benefit payments. Payment may be made in periodic installments in accordance with\nUSANA’s regular payroll practices.\n \n6. Non-Disparagement. I will not in an way, directly or indirectly, at any time during employment or after either voluntary or\ninvoluntary employment termination, commercially disparage USANA, its products, employees or distributors.\n7. No Contract of Employment. I acknowledge and understand that (i) this Agreement is not an employment agreement and does\nnot give me the right to be employed by USANA in any capacity, and (ii) nothing in this Agreement is intended to alter or change the terms or\nduration of my employment with USANA. I also understand that this Agreement does not supersede, void or otherwise limit USANA’s\nemployee policies relating to the confidentiality of business information as stated in the USANA Employee Handbook or my obligation as an\nemployee of USANA to adhere to these policies.\n8. General. I acknowledge and agree that:\na. Due to the unique nature of this Agreement and my obligations regarding non-disclosure, non-use and assignment of\nConfidential Information and inventions, monetary damages alone will be an inadequate remedy for my breach of such obligations. As a result,\nin the event of my breach of this Agreement, I agree that USANA shall be entitled to obtain injunctive and other equitable relief to protect the\nconfidential nature of its Confidential Information, in addition to all other remedies which may be available at law or otherwise.\nb. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah and the parties\nagree to submit to the exclusive jurisdiction of the courts of the State of Utah to resolve any litigation to enforce this Agreement.\nC. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable,\nthe same shall be deemed severed from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of\nthis Agreement.\nThis Agreement will be effective as of the first date of my employment with USANA, namely ,\n \n20\n2\nEMPLOYEE USANA Health Sciences, Inc.\nBy:\n(Employee’s Signature) James Bramble\nName: Title:\n(please print) General Counsel\nDated: Dated:\n	EX-10.18 2 11-25732_1ex10d18.htm EX-10.18\nExhibit 10.18\nUSANA HEALTH SCIENCES, INC.\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration of employment or continued employment by USANA Health Sciences, Inc. or any of its affiliates or subsidiaries\n(collectively, "USANA"), the compensation paid by USANA from time to time, and other good and valuable consideration, the undersigned\nemployee of USANA hereby represents to and agrees with USANA as follows:\n1.\nConfidential Information. I understand that USANA owns or might acquire confidential or secret information ("Confidential\nInformation") that is valuable to USANA'S business. Confidential Information includes but is not limited to trade secrets, copyrighted material,\nwritten material, pictures, logos, processes, formulas, computer programs, data, know-how, inventions, improvements, techniques, marketing\nplans, product plans, strategies, forecasts, supplier information, customer lists, and any other type of information, which is not generally known\nand is owned by USANA or its customers or suppliers. Confidential information specifically refers to information I may view or have access to\nor information I create or assist in creating as part of my job at USANA.\n2.\nAssignment of Confidential Information and Inventions. I specifically agree that work I complete as an employee of USANA\nis work made for hire and all rights in the work belong to USANA. In that regard, I hereby assign to USANA all of my rights in all Confidential\nInformation, including all discoveries, inventions and other technology, all works of authorship, all data and information, and all intellectual\nproperty rights therein, which are made, discovered, developed, created, or conceived, in whole or in part, previously or hereafter by me\n(i) during the course of and within the scope of my employment with USANA, or (b) with the aid of Confidential Information or the facilities,\nresources or property of USANA.\n3.\nConfidentiality. and Non-Disclosure. I understand that my employment with USANA creates a relationship of trust and\nconfidence between me and USANA with respect to the Confidential Information about which I may learn or that I help to develop or that\nis\notherwise\ndisclosed\nto\nme\nby\nUSANA\nduring\nthe\nperiod\nof\nmy\nemployment\nwith\nUSANA.\nThis\nis\nespecially\ntrue\nwhere\nUSANA\nmight\nshare\nwith me and other employees USANA'S plans to introduce new products or programs. At all times during and after my employment with\nUSANA, I will keep in strict confidence all Confidential Information and I will not use or disclose any Confidential Information, nor permit\nothers to use or disclose it in any way, without USANA'S written permission, except as may be necessary to perform my duties as a USANA\nemployee.\nI acknowledge and agree that USANA is the sole and exclusive owner of all rights in and to its Confidential Information, and I agree\nthat upon termination of my employment with USANA I will immediately return to USANA all Confidential Information in my possession, as\nwell as any and all copies, reproductions or summaries thereof.\n4.\nNon-Solicitation. I agree that during my period of employment with USANA, and for a period of [one] year thereafter, I will\nnot directly or indirectly (a) call on, solicit, take away, or attempt to take away for my benefit or the benefit of any other person or entity, any\ncustomer, supplier, or client of USANA, or (b) solicit, take away, or attempt to take away, for my benefit or the benefit of any other person or\nentity, any employee or officer of USANA.\n5.\nNon-Competition. In exchange for the benefits of continued employment, I agree not to accept employment with, engage in or\nparticipate, directly or indirectly, individually or as an officer, director, employee, shareholder, consultant, partner, joint venture, agent, equity\nowner, distributor or in any other capacity whatsoever, with any direct sales or multi-level marketing company that competes with USANA,\nwhether for market share of products or for distributors in territory in which USANA is doing business. The restrictions set forth in this\nparagraph shall remain in effect during my employment with USANA and during a period of six months following the termination of my\nemployment. Within fifteen days of termination of my employment, USANA shall notify me whether it elects to release me from the obligations\nset forth in this paragraph. For the period following the termination of employment during which the restrictive covenants in this paragraph\nremain in effect, USANA shall pay me a sum equal to fifty percent of my base salary at termination of employment, less applicable withholding\ntaxes and excluding all incentive compensation and other benefit payments. Payment may be made in periodic installments in accordance with\nUSANA's regular payroll practices.\n6.\nNon-Disparagement. I will not in an way, directly or indirectly, at any time during employment or after either voluntary or\ninvoluntary employment termination, commercially disparage USANA, its products, employees or distributors.\n7.\nNo Contract of Employment. I acknowledge and understand that (i) this Agreement is not an employment agreement\nand\ndoes\nnot give me the right to be employed by USANA in any capacity, and (ii) nothing in this Agreement is intended to alter or change the terms\nor\nduration of my employment with USANA. I also understand that this Agreement does not supersede, void or otherwise limit USANA'S\nemployee policies relating to the confidentiality of business information as stated in the USANA Employee Handbook or my obligation as an\nemployee of USANA to adhere to these policies.\n8.\nGeneral. I acknowledge and agree that:\na.\nDue to the unique nature of this Agreement and my obligations regarding non-disclosure, non-use and assignment of\nConfidential Information and inventions, monetary damages alone will be an inadequate remedy for my breach of such obligations. As a result,\nin the event of my breach of this Agreement, I agree that USANA shall be entitled to obtain injunctive and other equitable relief to protect the\nconfidential nature of its Confidential Information, in addition to all other remedies which may be available at law or otherwise.\nb.\nThis Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah and the parties\nagree to submit to the exclusive jurisdiction of the courts of the State of Utah to resolve any litigation to enforce this Agreement.\nC.\nIf any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable,\nthe same shall be deemed severed from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of\nthis Agreement.\nThis Agreement will be effective as of the first date of my employment with USANA, namely\n20\n2\nEMPLOYEE\nUSANA Health Sciences, Inc.\nBy:\n(Employee's Signature)\nJames Bramble\nName:\nTitle:\n(please print)\nGeneral Counsel\nDated:\nDated:\n3	EX-10.18 2 a11-25732_1ex10d18.htm EX-10.18\nExhibit 10.18\nUSANA HEALTH SCIENCES, INC.\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration of employment or continued employment by USANA Health Sciences, Inc. or any of its affiliates or subsidiaries\n(collectively, “USANA”), the compensation paid by USANA from time to time, and other good and valuable consideration, the undersigned\nemployee of USANA hereby represents to and agrees with USANA as follows:\n1. Confidential Information. I understand that USANA owns or might acquire confidential or secret information (“Confidential\nInformation”) that is valuable to USANA’s business. Confidential Information includes but is not limited to trade secrets, copyrighted material,\nwritten material, pictures, logos, processes, formulas, computer programs, data, know-how, inventions, improvements, techniques, marketing\nplans, product plans, strategies, forecasts, supplier information, customer lists, and any other type of information, which is not generally known\nand is owned by USANA or its customers or suppliers. Confidential information specifically refers to information I may view or have access to\nor information I create or assist in creating as part of my job at USANA.\n2.\nAssignment of Confidential Information and Inventions. I specifically agree that work I complete as an employee of USANA\nis work made for hire and all rights in the work belong to USANA. In that regard, I hereby assign to USANA all of my rights in all Confidential\nInformation, including all discoveries, inventions and other technology, all works of authorship, all data and information, and all intellectual\nproperty rights therein, which are made, discovered, developed, created, or conceived, in whole or in part, previously or hereafter by me\n(i) during the course of and within the scope of my employment with USANA, or (b) with the aid of Confidential Information or the facilities,\nresources or property of USANA.\n3.\nConfidentiality and Non-Disclosure. I understand that my employment with USANA creates a relationship of trust and\nconfidence between me and USANA with respect to the Confidential Information about which I may learn or that I help to develop or that is\notherwise disclosed to me by USANA during the period of my employment with USANA. This is especially true where USANA might share\nwith me and other employees USANA’s plans to introduce new products or programs. At all times during and after my employment with\nUSANA, I will keep in strict confidence all Confidential Information and I will not use or disclose any Confidential Information, nor permit\nothers to use or disclose it in any way, without USANA’s written permission, except as may be necessary to perform my duties as a USANA\nemployee.\nI acknowledge and agree that USANA is the sole and exclusive owner of all rights in and to its Confidential Information, and I agree\nthat upon termination of my employment with USANA I will immediately return to USANA all Confidential Information in my possession, as\nwell as any and all copies, reproductions or summaries thereof.\n4.\nNon-Solicitation. I agree that during my period of employment with USANA, and for a period of [one] year thereafter, I will\nnot directly or indirectly (a) call on, solicit, take away, or attempt to take away for my benefit or the benefit of any other person or entity, any\ncustomer, supplier, or client of USANA, or (b) solicit, take away, or attempt to take away, for my benefit or the benefit of any other person or\nentity, any employee or officer of USANA.\n5.\nNon-Competition. In exchange for the benefits of continued employment, I agree not to accept employment with, engage in or\nparticipate, directly or indirectly, individually or as an officer, director, employee, shareholder, consultant, partner, joint venture, agent, equity\nowner, distributor or in any other capacity whatsoever, with any direct sales or multi-level marketing company that competes with USANA,\nwhether for market share of products or for distributors in territory in which USANA is doing business. The restrictions set forth in this\nparagraph shall remain in effect during my employment with USANA and during a period of six months following the termination of my\nemployment. Within fifteen days of termination of my employment, USANA shall notify me whether it elects to release me from the obligations\nset forth in this paragraph. For the period following the termination of employment during which the restrictive covenants in this paragraph\nremain in effect, USANA shall pay me a sum equal to fifty percent of my base salary at termination of employment, less applicable withholding\ntaxes and excluding all incentive compensation and other benefit payments. Payment may be made in periodic installments in accordance with\nUSANA’s regular payroll practices.\n6.\nNon-Disparagement. I will not in an way, directly or indirectly, at any time during employment or after either voluntary or\ninvoluntary employment termination, commercially disparage USANA, its products, employees or distributors.\n7.\nNo Contract of Employment. I acknowledge and understand that (i) this Agreement is not an employment agreement and does\nnot give me the right to be employed by USANA in any capacity, and (ii) nothing in this Agreement is intended to alter or change the terms or\nduration of my employment with USANA. I also understand that this Agreement does not supersede, void or otherwise limit USANA’s\nemployee policies relating to the confidentiality of business information as stated in the USANA Employee Handbook or my obligation as an\nemployee of USANA to adhere to these policies.\n8.\nGeneral. I acknowledge and agree that:\na.\nDue to the unique nature of this Agreement and my obligations regarding non-disclosure, non-use and assignment of\nConfidential Information and inventions, monetary damages alone will be an inadequate remedy for my breach of such obligations. As a result,\nin the event of my breach of this Agreement, I agree that USANA shall be entitled to obtain injunctive and other equitable relief to protect the\nconfidential nature of its Confidential Information, in addition to all other remedies which may be available at law or otherwise.\nb.\nThis Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah and the parties\nagree to submit to the exclusive jurisdiction of the courts of the State of Utah to resolve any litigation to enforce this Agreement.\nc.\nIf any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable,\nthe same shall be deemed severed from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of\nthis Agreement.\nThis Agreement will be effective as of the first date of my employment with USANA, namely\n,\n20.\n2\nEMPLOYEE\nUSANA Health Sciences, Inc.\nBy:\n(Employee’s Signature)\nJames Bramble\nName:\nTitle:\n(please print)\nGeneral Counsel\nDated:\nDated:\n3
7cf3dfaf7afd9989de90cb3cbd8d6a83.pdf	effective_date jurisdiction party term	EXHIBIT 5\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Electronic Arts, a Delaware corporation (“Company”).\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1 Definition of Confidential Information and Exclusions\n(a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Undersigned Receiving Party”) shall\nhave entered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Undersigned Receiving\nParty to enforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the date that\nDisclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections 2(b) and 2(c)\nof this Agreement;\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less\nthan reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in\npursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by\nDisclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by applicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice\n11/6/2009\nCONFIDENTIAL\nprior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance\nfrom the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under\napplicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains\nConfidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement\nset forth in sub-section (i) of this Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient to\nenable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify\ndestruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper\nby a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret\ninformation except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and providing\nFeedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the Receiving\nParty, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that neither\nDisclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability to use\nsuch software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export Administration\nRegulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information on exporting\nMicrosoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right\nto independently develop or acquire products without use of the other party’s Confidential Information. Further, the Receiving Party shall be free to\nuse for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the\nReceiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term\n“residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information,\nincluding ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not be deemed to\ngrant to the Receiving Party a license under the Disclosing Party’s copyrights or patents.\nCONFIDENTIAL\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement\nshall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or employees, but\nonly by an instrument in writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this\nAgreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of the\nState of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington,\nunless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior Court of\nKing County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either\nparty in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, however,\nthat neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part,\nwithout the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relations to the right and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\n4. Suggestions and Feedback\nThe Receiving Party may from time to time provide suggestions, comments or other feedback (“Feedback”) to the Disclosing Party with\nrespect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and shall be given entirely\nvoluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate written agreement, create\nany confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to license terms that seek to\nrequire any Disclosing Party product, technology, service or documentation incorporating or derived from such Feedback, or any Disclosing Party\nintellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise provided herein or in a separate\nsubsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose, reproduce, license or otherwise\ndistribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual\nproperty rights or otherwise.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement.\nCOMPANY: ELECTRONIC ARTS INC.\nMICROSOFT CORPORATION\nAddress: 209 Redwood Shores Parkway\nRedwood City, CA 94065\nOne Microsoft Way\nRedmond, WA 98052-6399\nSign: /s/ M. West\nSign: /s/ Laura Wallace\nPrint Name: M. West\nPrint Name: Laura Wallace\nPrint Title: SVP CIO\nPrint Title: GM, Northern California\nSignature Date: 4/8/04\nSignature Date: 4/26/04\nCONFIDENTIAL	EXHIBIT 5\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Electronic Arts, a Delaware corporation (“Company”).\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1 Definition of Confidential Information and Exclusions\n(a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Undersigned Receiving Party”) shall\nhave entered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Undersigned Receiving\nParty to enforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the date that\nDisclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections 2(b) and 2(c)\nof this Agreement;\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less\nthan reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in\npursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by\nDisclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by applicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice\n11/6/2009 CONFIDENTIAL\nprior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance\nfrom the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under\napplicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains\nConfidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement\nset forth in sub-section (i) of this Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient to\nenable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify\ndestruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper\nby a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret\ninformation except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and providing\nFeedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the Receiving\nParty, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that neither\nDisclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability to use\nsuch software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export Administration\nRegulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information on exporting\nMicrosoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right\nto independently develop or acquire products without use of the other party’s Confidential Information. Further, the Receiving Party shall be free to\nuse for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the\nReceiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term\n“residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information,\nincluding ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not be deemed to\ngrant to the Receiving Party a license under the Disclosing Party’s copyrights or patents.\nCONFIDENTIAL\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement\nshall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or employees, but\nonly by an instrument in writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this\nAgreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.\n() If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of the\nState of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington,\nunless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior Court of\nKing County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either\nparty in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, however,\nthat neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part,\nwithout the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relations to the right and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\n4. Suggestions and Feedback\nThe Receiving Party may from time to time provide suggestions, comments or other feedback (“Feedback”) to the Disclosing Party with\nrespect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and shall be given entirely\nvoluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate written agreement, create\nany confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to license terms that seek to\nrequire any Disclosing Party product, technology, service or documentation incorporating or derived from such Feedback, or any Disclosing Party\nintellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise provided herein or in a separate\nsubsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose, reproduce, license or otherwise\ndistribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual\nproperty rights or otherwise.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement.\nCOMPANY: ELECTRONIC ARTS INC. MICROSOFT CORPORATION\nAddress: 209 Redwood Shores Parkway One Microsoft Way\nRedwood City, CA 94065 Redmond, WA 98052-6399\nSign: /s/ M.. West Sign: /s/ Laura Wallace\nPrint Name: M. West Print Name: Laura Wallace\nPrint Title: SVP CIO Print Title: GM, Northern California\nSignature Date: 4/8/04 Signature Date: 4/26/04\nCONFIDENTIAL	EXHIBIT 5\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the "Agreement") is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation ("Microsoft"), and Electronic Arts, a Delaware corporation ("'Company").\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1 Definition of Confidential Information and Exclusions\n(a) "Confidential Information" means nonpublic information that a party to this Agreement ("Disclosing Party") designates as being\nconfidential to the party that receives such information ("Receiving Party") or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. "Confidential Information" includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party's business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term "Disclosing Party" also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term "Receiving Party" also includes all Affiliates of the Receiving Party. An "Affiliate" means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the "Undersigned Receiving Party") shall\nhave entered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Undersigned Receiving\nParty to enforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party's breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party's\ndisclosure\nof\nsuch\ninformation\nto\nReceiving\nParty\npursuant\nto\nthe\nterms\nof\nthis\nAgreement;\n(iii)\nbecame\nknown\nto\nReceiving\nParty\nfrom\na\nsource\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i)\nRefrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the date that\nDisclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections 2(b) and 2(c)\nof this Agreement;\n(ii)\nTake reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less\nthan reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in\npursuance of Receiving Party's business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by\nDisclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by applicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice\n11/6/2009\nCONFIDENTIAL\nprior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance\nfrom the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under\napplicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains\nConfidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement\nset forth in sub-section (i) of this Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party's employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient to\nenable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential\nInformation or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party's request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's option, certify\ndestruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper\nby a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret\ninformation except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and providing\nFeedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the Receiving\nParty, all such computer software and/or hardware is provided "AS IS" without warranty of any kind, and Receiving Party agrees that neither\nDisclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party's use of or inability to use\nsuch software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export Administration\nRegulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information on exporting\nMicrosoft products, see http://www.microsoft.com/exporting\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party's right\nto independently develop or acquire products without use of the other party's Confidential Information. Further, the Receiving Party shall be free to\nuse for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the\nReceiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term\n"residuals" means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information,\nincluding ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not be deemed to\ngrant to the Receiving Party a license under the Disclosing Party's copyrights or patents.\nCONFIDENTIAL\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement\nshall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or employees, but\nonly by an instrument in writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this\nAgreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys' fees and costs. This Agreement shall be construed and controlled by the laws of the\nState of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington,\nunless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior Court of\nKing County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either\nparty in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party's respective successors and lawful assigns; provided, however,\nthat neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part,\nwithout the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relations to the right and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\n4. Suggestions and Feedback\nThe Receiving Party may from time to time provide suggestions, comments or other feedback ("Feedback") to the Disclosing Party with\nrespect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and shall be given entirely\nvoluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate written agreement, create\nany confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to license terms that seek to\nrequire any Disclosing Party product, technology, service or documentation incorporating or derived from such Feedback, or any Disclosing Party\nintellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise provided herein or in a separate\nsubsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose, reproduce, license or otherwise\ndistribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual\nproperty rights or otherwise.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement.\nCOMPANY: ELECTRONIC ARTS INC.\nMICROSOFT CORPORATION\nAddress: 209 Redwood Shores Parkway\nOne Microsoft Way\nRedwood City, CA 94065\nRedmond, WA 98052-6399\nSign: /s/ M. West\nSign: /s/ Laura Wallace\nPrint Name: M. West\nPrint Name: Laura Wallace\nPrint Title: SVP CIO\nPrint Title: GM, Northern California\nSignature Date: 4/8/04\nSignature Date: 4/26/04\nCONFIDENTIAL	EXHIBIT 5\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Electronic Arts, a Delaware corporation (“Company”).\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1 Definition of Confidential Information and Exclusions\n(a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Undersigned Receiving Party”) shall\nhave entered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Undersigned Receiving\nParty to enforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the date that\nDisclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections 2(b) and 2(c)\nof this Agreement;\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less\nthan reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in\npursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by\nDisclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by applicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice\n11/6/2009\nCONFIDENTIAL\nprior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance\nfrom the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under\napplicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains\nConfidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement\nset forth in sub-section (i) of this Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient to\nenable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify\ndestruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper\nby a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret\ninformation except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and providing\nFeedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the Receiving\nParty, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that neither\nDisclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability to use\nsuch software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export Administration\nRegulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information on exporting\nMicrosoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right\nto independently develop or acquire products without use of the other party’s Confidential Information. Further, the Receiving Party shall be free to\nuse for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the\nReceiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term\n“residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information,\nincluding ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not be deemed to\ngrant to the Receiving Party a license under the Disclosing Party’s copyrights or patents.\nCONFIDENTIAL\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement\nshall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or employees, but\nonly by an instrument in writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this\nAgreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of the\nState of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington,\nunless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior Court of\nKing County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either\nparty in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, however,\nthat neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part,\nwithout the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relations to the right and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\n4. Suggestions and Feedback\nThe Receiving Party may from time to time provide suggestions, comments or other feedback (“Feedback”) to the Disclosing Party with\nrespect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and shall be given entirely\nvoluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate written agreement, create\nany confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to license terms that seek to\nrequire any Disclosing Party product, technology, service or documentation incorporating or derived from such Feedback, or any Disclosing Party\nintellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise provided herein or in a separate\nsubsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose, reproduce, license or otherwise\ndistribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual\nproperty rights or otherwise.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement.\nCOMPANY: ELECTRONIC ARTS INC.\nMICROSOFT CORPORATION\nAddress: 209 Redwood Shores Parkway\nRedwood City, CA 94065\nOne Microsoft Way\nRedmond, WA 98052-6399\nSign: /s/ M. West\nSign: /s/ Laura Wallace\nPrint Name: M. West\nPrint Name: Laura Wallace\nPrint Title: SVP CIO\nPrint Title: GM, Northern California\nSignature Date: 4/8/04\nSignature Date: 4/26/04\nCONFIDENTIAL
7cfa17a4165369964337c2f46c40e3a2.pdf	effective_date jurisdiction party term	EX-10.14 18 a2236789zex-10_14.htm EX-10.14\nExhibit 10.14\nEMPLOYEE INVENTION, NON-DISCLOSURE,\nNON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Agreement is made between Legacy Housing Corporation, a Delaware corporation (the “Company”), and\n(the\n“Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1.\nProprietary Information.\n(a)\nThe Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects’ developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his duties as an employee of the Company) without written approval by an officer of the Company,\neither during or after his employment with the Company, unless and until such Proprietary Information has become public knowledge without\nfault by the Employee.\n(b)\nThe Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which came into his custody and possession as independent contractor to the Company or which shall come into his custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of his duties for the\nCompany. All such materials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his employment. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\n(c)\nThe Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs\n(a) and (b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2.\nDevelopments.\n(a)\nThe Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, and works of authorship, whether patentable or not, which were or are created, made, conceived or reduced to practice\nby him or under his direction or jointly with others during his employment by the Company or during his provision of services as an independent\ncontractor to the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively\nreferred to in this Agreement as “Developments”).\n(b)\nThe Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company)\nall his right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c)\nThe Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions\nas the Company may deem necessary or desirable, in order to protect its rights and interests in any Development, under the conditions described\nin this sentence.\n3.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company on page 6 of this Agreement, the\nEmployee is not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade\nsecret or confidential or proprietary information in the course of his employment with the Company or to refrain from competing, directly or\nindirectly, with the business of such previous\n2\nemployer or any other party. The Employee further represents that his performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by the\nEmployee in confidence or in trust prior to his employment with the Company, and the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n4.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5.\nNo Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his employment\nwill continue for any period of time.\n6.\nNon-Competition.\n(a)\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly:\n(i)\nas an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender,\nconsultant, or in any other capacity whatsoever (other than as the holder of not more than one percent of the combined voting power of\nthe outstanding stock of a publicly-held company), develop, design, produce, market, sell or render (or assist any other person in\ndeveloping, designing, producing, marketing, selling or rendering) products or services competitive with those developed, designed,\nproduced, marketed, sold or rendered by the company while the Employee was employed by the Company; or\n(ii)\nsolicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients,\ncustomers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the\nEmployee while employed by the Company.\n(b)\nIf the Employee violates the provisions of paragraph 6(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 6(a) until a period of one year has expired without any violation of such provisions.\n3\n7.\nNon-Solicitation.\n(a)\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly recruit, solicit or hire any employee of the Company, or induce or\nattempt to induce any employee of the Company to terminate his employment with, or otherwise cease his relationship with, the Company.\n(b)\nIf the Employee violates the provisions of paragraph 7(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 7(a) until a period of one year has expired without any violation of such provisions.\n8.\nMiscellaneous.\n(a)\nThe Employee represents that the execution and performance by him of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b)\nThe Employee acknowledges that this Agreement does not constitute a contract of employment and does not imply that the\nCompany will continue his employment for any period of time.\n(c)\nIf any restriction set forth in paragraph 6 or 7 is found by any court of competent jurisdiction to be unenforceable because it\nextends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only\nover the maximum period of time, range of activities or geographic area as to which it may be enforceable.\n(d)\nThe Company may assign this Agreement to any other corporation or entity which acquires (whether by purchase, merger,\nconsolidation or otherwise) all or substantially all of the business and/or assets of the Company.\n(e)\nThe invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability, of any other\nprovision of this Agreement.\n(f)\nThis Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after\nthe signing of this Agreement shall not affect the validity or scope of this Agreement.\n(g)\nThis Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n4\n(h)\nNo delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\n(i)\nThe Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(j) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(k)\nThis Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State\nof Texas. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this\nAgreement shall be commenced only in a court of the State of Texas and County of Tarrant (or, if appropriate, a federal court located within the\nState of Texas and County of Tarrant), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nLEGACY HOUSING CORPORATION\nDate:\nBy:\nName:\nTitle:\nEMPLOYEE:\nDate:\n(signature)\nPrior Agreements, if any:\n5	EX-10.14 18 a2236789zex-10_14.htm EX-10.14\nExhibit 10.14\nEMPLOYEE INVENTION, NON-DISCLOSURE,\nNON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Agreement is made between Legacy Housing Corporation, a Delaware corporation (the “Company”), and (the\n“Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary Information.\n@) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects’ developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his duties as an employee of the Company) without written approval by an officer of the Company,\neither during or after his employment with the Company, unless and until such Proprietary Information has become public knowledge without\nfault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which came into his custody and possession as independent contractor to the Company or which shall come into his custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of his duties for the\nCompany. All such materials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his employment. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\n(0 The Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs\n(a) and (b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n \n2. Developments.\n@) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, and works of authorship, whether patentable or not, which were or are created, made, conceived or reduced to practice\nby him or under his direction or jointly with others during his employment by the Company or during his provision of services as an independent\ncontractor to the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively\nreferred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company)\nall his right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(0 The Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions\nas the Company may deem necessary or desirable, in order to protect its rights and interests in any Development, under the conditions described\nin this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company on page 6 of this Agreement, the\nEmployee is not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade\nsecret or confidential or proprietary information in the course of his employment with the Company or to refrain from competing, directly or\nindirectly, with the business of such previous\n \nemployer or any other party. The Employee further represents that his performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by the\nEmployee in confidence or in trust prior to his employment with the Company, and the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5. No Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his employment\nwill continue for any period of time.\n6. Non-Competition.\n@) While the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly:\n@) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender,\nconsultant, or in any other capacity whatsoever (other than as the holder of not more than one percent of the combined voting power of\nthe outstanding stock of a publicly-held company), develop, design, produce, market, sell or render (or assist any other person in\ndeveloping, designing, producing, marketing, selling or rendering) products or services competitive with those developed, designed,\nproduced, marketed, sold or rendered by the company while the Employee was employed by the Company; or\n(ii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients,\ncustomers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the\nEmployee while employed by the Company.\n(b) If the Employee violates the provisions of paragraph 6(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 6(a) until a period of one year has expired without any violation of such provisions.\n3\n \n7. Non-Solicitation.\n@) While the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly recruit, solicit or hire any employee of the Company, or induce or\nattempt to induce any employee of the Company to terminate his employment with, or otherwise cease his relationship with, the Company.\n(b) If the Employee violates the provisions of paragraph 7(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 7(a) until a period of one year has expired without any violation of such provisions.\n8. Miscellaneous.\n@) The Employee represents that the execution and performance by him of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b) The Employee acknowledges that this Agreement does not constitute a contract of employment and does not imply that the\nCompany will continue his employment for any period of time.\n(0 If any restriction set forth in paragraph 6 or 7 is found by any court of competent jurisdiction to be unenforceable because it\nextends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only\nover the maximum period of time, range of activities or geographic area as to which it may be enforceable.\n(d) The Company may assign this Agreement to any other corporation or entity which acquires (whether by purchase, merger,\nconsolidation or otherwise) all or substantially all of the business and/or assets of the Company.\n(e) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability, of any other\nprovision of this Agreement.\n(3] This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after\nthe signing of this Agreement shall not affect the validity or scope of this Agreement.\n(8 This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n \n(h) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\n®» The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n1)) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\nk) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State\nof Texas. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this\nAgreement shall be commenced only in a court of the State of Texas and County of Tarrant (or, if appropriate, a federal court located within the\nState of Texas and County of Tarrant), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nLEGACY HOUSING CORPORATION\nDate: By:\nName:\nTitle:\nEMPLOYEE:\nDate:\n(signature)\nPrior Agreements, if any:\n	EX-10.14 18 a2236789zex-10_14.htm EX-10.14\nExhibit 10.14\nEMPLOYEE INVENTION, NON-DISCLOSURE,\nNON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Agreement is made between Legacy Housing Corporation, a Delaware corporation (the "Company"), and\n(the\n"Employee").\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1.\nProprietary Information.\n(a)\nThe Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects' developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his duties as an employee of the Company) without written approval by an officer of the Company,\neither during or after his employment with the Company, unless and until such Proprietary Information has become public knowledge without\nfault by the Employee.\n(b)\nThe Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which came into his custody and possession as independent contractor to the Company or which shall come into his custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of his duties for the\nCompany. All such materials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his employment. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\n(c)\nThe Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs\n(a) and (b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2.\nDevelopments.\n(a)\nThe Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, and works of authorship, whether patentable or not, which were or are created, made, conceived or reduced to practice\nby him or under his direction or jointly with others during his employment by the Company or during his provision of services as an independent\ncontractor to the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively\nreferred to in this Agreement as "Developments").\n(b)\nThe Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company)\nall his right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company's\npremises and not using the Company's tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c)\nThe Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions\nas the Company may deem necessary or desirable, in order to protect its rights and interests in any Development, under the conditions described\nin this sentence.\n3.\nOther Agreements\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company on page 6 of this Agreement, the\nEmployee is not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade\nsecret or confidential or proprietary information in the course of his employment with the Company or to refrain from competing, directly or\nindirectly, with the business of such previous\n2\nemployer or any other party. The Employee further represents that his performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by the\nEmployee in confidence or in trust prior to his employment with the Company, and the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n4.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5.\nNo Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his employment\nwill continue for any period of time.\n6.\nNon-Competition.\n(a)\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly:\n(i)\nas an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender,\nconsultant, or in any other capacity whatsoever (other than as the holder of not more than one percent of the combined voting power of\nthe outstanding stock of a publicly-held company), develop, design, produce, market, sell or render (or assist any other person in\ndeveloping, designing, producing, marketing, selling or rendering) products or services competitive with those developed, designed,\nproduced, marketed, sold or rendered by the company while the Employee was employed by the Company; or\n(ii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients,\ncustomers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the\nEmployee while employed by the Company.\n(b)\nIf the Employee violates the provisions of paragraph 6(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 6(a) until a period of one year has expired without any violation of such provisions.\n3\n7.\nNon-Solicitation.\n(a)\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly recruit, solicit or hire any employee of the Company, or induce or\nattempt to induce any employee of the Company to terminate his employment with, or otherwise cease his relationship with, the Company.\n(b)\nIf the Employee violates the provisions of paragraph 7(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 7(a) until a period of one year has expired without any violation of such provisions.\n8.\nMiscellaneous.\n(a)\nThe Employee represents that the execution and performance by him of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b)\nThe Employee acknowledges that this Agreement does not constitute a contract of employment and does not imply that the\nCompany will continue his employment for any period of time.\n(c)\nIf any restriction set forth in paragraph 6 or 7 is found by any court of competent jurisdiction to be unenforceable because\nit\nextends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only\nover the maximum period of time, range of activities or geographic area as to which it may be enforceable.\n(d)\nThe Company may assign this Agreement to any other corporation or entity which acquires (whether by purchase, merger,\nconsolidation or otherwise) all or substantially all of the business and/or assets of the Company.\n(e)\nThe invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability, of any other\nprovision of this Agreement.\n(f)\nThis Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after\nthe signing of this Agreement shall not affect the validity or scope of this Agreement.\n(g)\nThis Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n4\n(h)\nNo delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\n(i)\nThe Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(j)\nThe restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(k)\nThis Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State\nof Texas. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this\nAgreement shall be commenced only in a court of the State of Texas and County of Tarrant (or, if appropriate, a federal court located within the\nState of Texas and County of Tarrant), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nLEGACY HOUSING CORPORATION\nDate:\nBy:\nName:\nTitle:\nEMPLOYEE:\nDate:\n(signature)\nPrior Agreements, if any:\n5	EX-10.14 18 a2236789zex-10_14.htm EX-10.14\nExhibit 10.14\nEMPLOYEE INVENTION, NON-DISCLOSURE,\nNON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Agreement is made between Legacy Housing Corporation, a Delaware corporation (the “Company”), and\n(the\n“Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1.\nProprietary Information.\n(a)\nThe Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects’ developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his duties as an employee of the Company) without written approval by an officer of the Company,\neither during or after his employment with the Company, unless and until such Proprietary Information has become public knowledge without\nfault by the Employee.\n(b)\nThe Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which came into his custody and possession as independent contractor to the Company or which shall come into his custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of his duties for the\nCompany. All such materials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his employment. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\n(c)\nThe Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs\n(a) and (b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2.\nDevelopments.\n(a)\nThe Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, and works of authorship, whether patentable or not, which were or are created, made, conceived or reduced to practice\nby him or under his direction or jointly with others during his employment by the Company or during his provision of services as an independent\ncontractor to the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively\nreferred to in this Agreement as “Developments”).\n(b)\nThe Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company)\nall his right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c)\nThe Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions\nas the Company may deem necessary or desirable, in order to protect its rights and interests in any Development, under the conditions described\nin this sentence.\n3.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company on page 6 of this Agreement, the\nEmployee is not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade\nsecret or confidential or proprietary information in the course of his employment with the Company or to refrain from competing, directly or\nindirectly, with the business of such previous\n2\nemployer or any other party. The Employee further represents that his performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by the\nEmployee in confidence or in trust prior to his employment with the Company, and the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n4.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5.\nNo Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his employment\nwill continue for any period of time.\n6.\nNon-Competition.\n(a)\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly:\n(i)\nas an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender,\nconsultant, or in any other capacity whatsoever (other than as the holder of not more than one percent of the combined voting power of\nthe outstanding stock of a publicly-held company), develop, design, produce, market, sell or render (or assist any other person in\ndeveloping, designing, producing, marketing, selling or rendering) products or services competitive with those developed, designed,\nproduced, marketed, sold or rendered by the company while the Employee was employed by the Company; or\n(ii)\nsolicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients,\ncustomers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the\nEmployee while employed by the Company.\n(b)\nIf the Employee violates the provisions of paragraph 6(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 6(a) until a period of one year has expired without any violation of such provisions.\n3\n7.\nNon-Solicitation.\n(a)\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly recruit, solicit or hire any employee of the Company, or induce or\nattempt to induce any employee of the Company to terminate his employment with, or otherwise cease his relationship with, the Company.\n(b)\nIf the Employee violates the provisions of paragraph 7(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 7(a) until a period of one year has expired without any violation of such provisions.\n8.\nMiscellaneous.\n(a)\nThe Employee represents that the execution and performance by him of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b)\nThe Employee acknowledges that this Agreement does not constitute a contract of employment and does not imply that the\nCompany will continue his employment for any period of time.\n(c)\nIf any restriction set forth in paragraph 6 or 7 is found by any court of competent jurisdiction to be unenforceable because it\nextends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only\nover the maximum period of time, range of activities or geographic area as to which it may be enforceable.\n(d)\nThe Company may assign this Agreement to any other corporation or entity which acquires (whether by purchase, merger,\nconsolidation or otherwise) all or substantially all of the business and/or assets of the Company.\n(e)\nThe invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability, of any other\nprovision of this Agreement.\n(f)\nThis Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after\nthe signing of this Agreement shall not affect the validity or scope of this Agreement.\n(g)\nThis Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n4\n(h)\nNo delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\n(i)\nThe Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(j) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(k)\nThis Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State\nof Texas. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this\nAgreement shall be commenced only in a court of the State of Texas and County of Tarrant (or, if appropriate, a federal court located within the\nState of Texas and County of Tarrant), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nLEGACY HOUSING CORPORATION\nDate:\nBy:\nName:\nTitle:\nEMPLOYEE:\nDate:\n(signature)\nPrior Agreements, if any:\n5
7ee46791374659e1fa47c692df3f0c8a.pdf	effective_date jurisdiction party term	EX-99.(D)(5) 9 dex99d5.htm TWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT, DATED\nOCTOBER 28, 2007\nExhibit (d)(5)\nPACKETEER, INC.\nTWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS Agreement is made and entered into by and between PACKETEER, INC. (“Packeteer”) and Blue Coat Systems, Inc., a Delaware\ncorporation, having offices at 420 North Mary Avenue, Sunnyvale, CA 94085, to assure the protection and preservation of the confidential and/or\nproprietary nature of each party’s confidential information. Each party will disclose such information solely for the purpose of evaluating the\npossibility of entering into a business relationship between the parties hereto (the “Purpose”). In reliance upon and in consideration of the following\nundertakings, the parties agree as follows:\n1. Definition. Subject to the limitations set forth in Section 2, all information (including but not limited to ideas, techniques, works of authorship,\nmodels, inventions, know-how, processes, equipment, algorithms, software source documents and formulae related to the current, future, and\nproposed products and services of each of the parties and information concerning research, development, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans), disclosed by one\nparty (the “Discloser”) to the other party (the “Recipient”) which is labeled or marked “Confidential” or with some other similar proprietary\nlegend, or which, in the context of the disclosure, the Recipient has reason to believe is confidential, shall be deemed to be “Confidential\nInformation.” If Confidential Information is disclosed in oral form, the Discloser shall identify it as confidential at the time of disclosure and\nthereafter summarize it in writing and transmit such summary to the Recipient within thirty (30) days of the oral disclosure.\n2. Exclusions. “Confidential Information” excludes information which: (a) is now or hereafter becomes generally known or available, through no\nact or failure to act on Recipient’s part; (b) Recipient independently knows at the time of receiving such information; (c) a third party hereafter\nfurnishes to Recipient without restriction on disclosure and without breach of any confidentiality obligations; (d) Recipient has independently\ndeveloped without using any Confidential Information or breaching this Agreement; or (e) Discloser gives written permission to Recipient to\ndisclose.\n3. Restrictions/Obligations. Recipient shall: (a) only disclose the Confidential Information to those employees and contractors with a need to\nknow; provided that Recipient binds those employees and contractors to terms at least as restrictive as those stated in this Agreement (or, with\nrespect to professional advisors, advises them of its obligations with respect to the Confidential Information); (b) not disclose any Confidential\nInformation to any third party, without Discloser’s prior written consent; (c) use such Confidential Information only to the extent required to\naccomplish the Purpose; (d) not reproduce Confidential Information in any form except as required to accomplish the Purpose; (e) not reverse\nengineer, decompile, or disassemble any software disclosed by the Discloser; (f) not directly or indirectly export or transmit any Confidential\nInformation to any country to which such export or transmission is restricted by regulation or statute; and (g) promptly provide the Discloser\nwith notice of any actual or threatened breach of the terms of this Agreement. However, Recipient may disclose Confidential Information in\naccordance with a judicial or other governmental order provided that Recipient shall give Discloser written notice prior to such disclosure.\nSubject to Recipient’s obligations of non-disclosure, Recipient shall be free to use the residuals resulting from the use or access to the\nConfidential Information of Discloser. The term “residuals” means information in intangible form which is retained in the unaided memory of\npersons who have had access to the Confidential Information, without reference to such information in tangible or fixed form. Solely with\nrespect to non-technical Confidential Information, Recipient’s obligations under this Section 3 shall expire one (1) year from the date of\ndisclosure of such non-technical Confidential Information.\n4. Ownership and Return of Confidential Information. All Confidential Information (including all copies thereof) shall remain the property of\nDiscloser. All copies shall bear all proprietary markings contained on or in the originals. Upon the request of Discloser, Recipient shall, at\nRecipient’s option, either (a) return such materials to Discloser, or (b) certify the destruction thereof.\n5. Rights. No rights or licenses to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted\nunder this Agreement. Subject to the obligations of this Agreement, neither party will be precluded from independently developing technology\nor pursuing business opportunities similar to those covered by the Confidential Information disclosed hereunder. Each party retains sole\ndiscretion to assign or reassign the job responsibilities of its employees. Each party acknowledges that the other party may currently or in the\nfuture be developing information internally, or receiving information from third parties, that is similar to the Confidential Information. Nothing\nin this Agreement will prohibit Recipient from developing or having developed for it products, concepts, systems or techniques that are similar\nto those contemplated by or embodied in the Confidential Information, provided the Recipient does not violate its obligations under this\nAgreement.\n6. Term and Termination. This Agreement shall remain in full force and effect for a period of three (3) years unless terminated sooner as set\nforth below. This Agreement may be terminated by either party upon thirty (30) days written notice, provided however, that Paragraphs 3, 4, 5,\nand 7 shall survive any termination of this Agreement.\n7. Miscellaneous. This Agreement shall be governed by the laws of the State of California. This Agreement contains the final, complete and\nexclusive agreement of the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and\nagreements relating to its subject matter and may not be changed, modified, amended or supplemented except by a written instrument signed\nby both parties. If any provision of this Agreement is found by a proper authority to be unenforceable, that provision shall be severed and the\nremainder of this Agreement will continue in full force and effect. Recipient hereby acknowledges and agrees that no remedy at law will afford\nDiscloser adequate protection against, or appropriate compensation for, breach of Recipient’s obligations under this Agreement. Accordingly,\nRecipient agrees that Discloser shall be entitled to specific performance of Recipient’s obligations, as well as such further equitable relief as\nmay be granted by a court of competent jurisdiction.\nPACKETEER, INC.\nOTHER PARTY:\nBy: /s/ Dave Côté\n/s/ Brian NeSmith\nBy: Dave Côté\nBy: Brian NeSmith\nTitle: President & CEO\nTitle: President & CEO\nDate: October 20, 2007\nDate: October 28, 2007	EX-99.(D)(5) 9 dex99d5.htm TWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT, DATED OCTOBER 28, 2007 Exhibit (d)(5)\nPACKETEER, INC.\nTWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS Agreement is made and entered into by and between PACKETEER, INC. (“Packeteer”) and Blue Coat Systems, Inc., a Delaware\ncorporation, having offices at 420 North Mary Avenue, Sunnyvale, CA 94085, to assure the protection and preservation of the confidential and/or proprietary nature of each party’s confidential information. Each party will disclose such information solely for the purpose of evaluating the possibility of entering into a business relationship between the parties hereto (the “Purpose”). In reliance upon and in consideration of the following undertakings, the parties agree as follows: 1. Definition. Subject to the limitations set forth in Section 2, all information (including but not limited to ideas, techniques, works of authorship,\nmodels, inventions, know-how, processes, equipment, algorithms, software source documents and formulae related to the current, future, and\nproposed products and services of each of the parties and information concerning research, development, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans), disclosed by one\nparty (the “Discloser”) to the other party (the “Recipient”) which is labeled or marked “Confidential” or with some other similar proprietary\nlegend, or which, in the context of the disclosure, the Recipient has reason to believe is confidential, shall be deemed to be “Confidential\nInformation.” If Confidential Information is disclosed in oral form, the Discloser shall identify it as confidential at the time of disclosure and\nthereafter summarize it in writing and transmit such summary to the Recipient within thirty (30) days of the oral disclosure.\nExclusions. “Confidential Information” excludes information which: (a) is now or hereafter becomes generally known or available, through no\nact or failure to act on Recipient’s part; (b) Recipient independently knows at the time of receiving such information; (c) a third party hereafter\nfurnishes to Recipient without restriction on disclosure and without breach of any confidentiality obligations; (d) Recipient has independently\ndeveloped without using any Confidential Information or breaching this Agreement; or (e) Discloser gives written permission to Recipient to\ndisclose.\nRestrictions/Obligations. Recipient shall: (a) only disclose the Confidential Information to those employees and contractors with a need to\nknow; provided that Recipient binds those employees and contractors to terms at least as restrictive as those stated in this Agreement (or, with\nrespect to professional advisors, advises them of its obligations with respect to the Confidential Information); (b) not disclose any Confidential\nInformation to any third party, without Discloser’s prior written consent; (c) use such Confidential Information only to the extent required to\naccomplish the Purpose; (d) not reproduce Confidential Information in any form except as required to accomplish the Purpose; (e) not reverse\nengineer, decompile, or disassemble any software disclosed by the Discloser; (f) not directly or indirectly export or transmit any Confidential\nInformation to any country to which such export or transmission is restricted by regulation or statute; and (g) promptly provide the Discloser\nwith notice of any actual or threatened breach of the terms of this Agreement. However, Recipient may disclose Confidential Information in\naccordance with a judicial or other governmental order provided that Recipient shall give Discloser written notice prior to such disclosure.\nSubject to Recipient’s obligations of non-disclosure, Recipient shall be free to use the residuals resulting from the use or access to the\nConfidential Information of Discloser. The term “residuals” means information in intangible form which is retained in the unaided memory of\npersons who have had access to the Confidential Information, without reference to such information in tangible or fixed form. Solely with\nrespect to non-technical Confidential Information, Recipient’s obligations under this Section 3 shall expire one (1) year from the date of\ndisclosure of such non-technical Confidential Information.\nOwnership and Return of Confidential Information. All Confidential Information (including all copies thereof) shall remain the property of\nDiscloser. All copies shall bear all proprietary markings contained on or in the originals. Upon the request of Discloser, Recipient shall, at\nRecipient’s option, either (a) return such materials to Discloser, or (b) certify the destruction thereof.\nRights. No rights or licenses to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted\nunder this Agreement. Subject to the obligations of this Agreement, neither party will be precluded from independently developing technology\nor pursuing business opportunities similar to those covered by the Confidential Information disclosed hereunder. Each party retains sole\ndiscretion to assign or reassign the job responsibilities of its employees. Each party acknowledges that the other party may currently or in the\nfuture be developing information internally, or receiving information from third parties, that is similar to the Confidential Information. Nothing\nin this Agreement will prohibit Recipient from developing or having developed for it products, concepts, systems or techniques that are similar\nto those contemplated by or embodied in the Confidential Information, provided the Recipient does not violate its obligations under this\nAgreement.\nTerm and Termination. This Agreement shall remain in full force and effect for a period of three (3) years unless terminated sooner as set\nforth below. This Agreement may be terminated by either party upon thirty (30) days written notice, provided however, that Paragraphs 3, 4, 5,\nand 7 shall survive any termination of this Agreement.\nMiscellaneous. This Agreement shall be governed by the laws of the State of California. This Agreement contains the final, complete and\nexclusive agreement of the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and\nagreements relating to its subject matter and may not be changed, modified, amended or supplemented except by a written instrument signed\nby both parties. If any provision of this Agreement is found by a proper authority to be unenforceable, that provision shall be severed and the\nremainder of this Agreement will continue in full force and effect. Recipient hereby acknowledges and agrees that no remedy at law will afford\nDiscloser adequate protection against, or appropriate compensation for, breach of Recipient’s obligations under this Agreement. Accordingly,\nRecipient agrees that Discloser shall be entitled to specific performance of Recipient’s obligations, as well as such further equitable relief as\nmay be granted by a court of competent jurisdiction.\nPACKETEER, INC.\nBy: /s/ Dave Coté\nBy: Dave Coté\nTitle: President & CEO\nDate: October 20, 2007\nBy:\nTitle:\nDate:\nOTHER PARTY:\n/s/ Brian NeSmith\nBrian NeSmith\nPresident & CEO\nOctober 28, 2007	EX-99.(D)(5) 9 dex99d5.htm TWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT, DATED\nOCTOBER 28, 2007\nExhibit (d)(5)\nPACKETEER, INC.\nTWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS Agreement is made and entered into by and between PACKETEER, INC. ("Packeteer") and Blue Coat Systems, Inc., a Delaware\ncorporation, having offices at 420 North Mary Avenue, Sunnyvale, CA 94085, to assure the protection and preservation of the confidential and/or\nproprietary nature of each party's confidential information. Each party will disclose such information solely for the purpose of evaluating the\npossibility of entering into a business relationship between the parties hereto (the "Purpose"). In reliance upon and in consideration of the following\nundertakings, the parties agree as follows:\n1.\nDefinition. Subject to the limitations set forth in Section 2, all information (including but not limited to ideas, techniques, works of authorship,\nmodels, inventions, know-how, processes equipment, algorithms, software source documents and formulae related to the current, future, and\nproposed products and services of each of the parties and information concerning research, development, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans), disclosed by one\nparty (the "Discloser") to the other party (the "Recipient") which is labeled or marked "Confidential" or with some other similar proprietary\nlegend, or which, in the context of the disclosure, the Recipient has reason to believe is confidential, shall be deemed to be "Confidentia\nInformation." If Confidential Information is disclosed in oral form, the Discloser shall identify it as confidential at the time of disclosure and\nthereafter summarize it in writing and transmit such summary to the Recipient within thirty (30) days of the oral disclosure.\n2.\nExclusions. "Confidential Information" excludes information which: (a) is now or hereafter becomes generally known or available, through no\nact or failure to act on Recipient's part; (b) Recipient independently knows at the time of receiving such information; (c) a third party hereafter\nfurnishes to Recipient without restriction on disclosure and without breach of any confidentiality obligations; (d) Recipient has independently\ndeveloped without using any Confidential Information or breaching this Agreement; or (e) Discloser gives written permission to Recipient to\ndisclose.\n3.\nRestrictions/Obligations. Recipient shall: (a) only disclose the Confidential Information to those employees and contractors with a need to\nknow; provided that Recipient binds those employees and contractors to terms at least as restrictive as those stated in this Agreement (or, with\nrespect\nto\nprofessional\nadvisors,\nadvises\nthem\nof\nits\nobligations\nwith\nrespect\nto\nthe\nConfidential\nInformation);\n(b)\nnot\ndisclose\nany\nConfidentia\nInformation to any third party, without Discloser's prior written consent; (c) use such Confidentia Information only to the extent required to\naccomplish the Purpose; (d) not reproduce Confidential Information in any form except as required to accomplish the Purpose; (e) not reverse\nengineer, decompile, or disassemble any software disclosed by the Discloser; (f) not directly or indirectly export or transmit any Confidential\nInformation to any country to which such export or transmission is restricted by regulation or statute; and (g) promptly provide the Discloser\nwith notice of any actual or threatened breach of the terms of this Agreement. However, Recipient may disclose Confidential Information in\naccordance with a judicial or other governmental order provided that Recipient shall give Discloser written notice prior to such disclosure.\nSubject to Recipient's obligations of non-disclosure, Recipient shall be free to use the residuals resulting from the use or access to the\nConfidential Information of Discloser. The term "residuals" means information in intangible form which is retained in the unaided memory\nof\npersons who have had access to the Confidential Information, without reference to such information in tangible or fixed form. Solely with\nrespect to non-technical Confidential Information, Recipient's obligations under this Section 3 shall expire one (1) year from the date of\ndisclosure of such non-technical Confidential Information.\n4.\nOwnership and Return of Confidential Information. All Confidential Information (including all copies thereof) shall remain the property of\nDiscloser. All copies shall bear all proprietary markings contained on or in the originals. Upon the request of Discloser, Recipient shall, at\nRecipient's option, either (a) return such materials to Discloser, or (b) certify the destruction thereof.\n5.\nRights. No rights or licenses to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted\nunder this Agreement. Subject to the obligations of this Agreement, neither party will be precluded from independently developing technology\nor pursuing business opportunities similar to those covered by the Confidential Information disclosed hereunder. Each party retains sole\ndiscretion to assign or reassign the job responsibilities of its employees. Each party acknowledges that the other party may currently or in the\nfuture be developing information internally, or receiving information from third parties, that is similar to the Confidential Information. Nothing\nin this Agreement will prohibit Recipient from developing or having developed for it products, concepts, systems or techniques that are similar\nto those contemplated by or embodied in the Confidential Information, provided the Recipient does not violate its obligations under this\nAgreement.\n6.\nTerm and Termination. This Agreement shall remain in full force and effect for a period of three (3) years unless terminated sooner as set\nforth below. This Agreement may be terminated by either party upon thirty (30) days written notice, provided however, that Paragraphs 3, 4, 5,\nand 7 shall survive any termination of this Agreement.\n7.\nMiscellaneous. This Agreement shall be governed by the laws of the State of California. This Agreement contains the final, complete and\nexclusive agreement of the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and\nagreements relating to its subject matter and may not be changed, modified, amended or supplemented except by a written instrument signed\nby both parties If any provision of this Agreement is found by a proper authority to be unenforceable, that provision shall be severed and the\nremainder\nof\nthis\nAgreement\nwill\ncontinue\nin\nfull\nforce\nand\neffect.\nRecipient\nhereby\nacknowledges\nand\nagrees\nthat\nno\nremedy\nat\nlaw\nwill\nafford\nDiscloser adequate protection against, or appropriate compensation for, breach of Recipient's obligations under this Agreement. Accordingly,\nRecipient agrees that Discloser shall be entitled to specific performance of Recipient's obligations, as well as such further equitable relief as\nmay be granted by a court of competent jurisdiction.\nPACKETEER, INC.\nOTHER PARTY:\nBy:\n/s/ Dave Cote\n/s/ Brian NeSmith\nBy:\nDave Cote\nBy: Brian NeSmith\nTitle: President & CEO\nTitle: President & CEO\nDate: October 20, 2007\nDate: October 28, 2007	EX-99.(D)(5) 9 dex99d5.htm TWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT, DATED\nOCTOBER 28, 2007\nExhibit (d)(5)\nPACKETEER, INC.\nTWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS Agreement is made and entered into by and between PACKETEER, INC. (“Packeteer”) and Blue Coat Systems, Inc., a Delaware\ncorporation, having offices at 420 North Mary Avenue, Sunnyvale, CA 94085, to assure the protection and preservation of the confidential and/or\nproprietary nature of each party’s confidential information. Each party will disclose such information solely for the purpose of evaluating the\npossibility of entering into a business relationship between the parties hereto (the “Purpose”). In reliance upon and in consideration of the following\nundertakings, the parties agree as follows:\n1. Definition. Subject to the limitations set forth in Section 2, all information (including but not limited to ideas, techniques, works of authorship,\nmodels, inventions, know-how, processes, equipment, algorithms, software source documents and formulae related to the current, future, and\nproposed products and services of each of the parties and information concerning research, development, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans), disclosed by one\nparty (the “Discloser”) to the other party (the “Recipient”) which is labeled or marked “Confidential” or with some other similar proprietary\nlegend, or which, in the context of the disclosure, the Recipient has reason to believe is confidential, shall be deemed to be “Confidential\nInformation.” If Confidential Information is disclosed in oral form, the Discloser shall identify it as confidential at the time of disclosure and\nthereafter summarize it in writing and transmit such summary to the Recipient within thirty (30) days of the oral disclosure.\n2. Exclusions. “Confidential Information” excludes information which: (a) is now or hereafter becomes generally known or available, through no\nact or failure to act on Recipient’s part; (b) Recipient independently knows at the time of receiving such information; (c) a third party hereafter\nfurnishes to Recipient without restriction on disclosure and without breach of any confidentiality obligations; (d) Recipient has independently\ndeveloped without using any Confidential Information or breaching this Agreement; or (e) Discloser gives written permission to Recipient to\ndisclose.\n3. Restrictions/Obligations. Recipient shall: (a) only disclose the Confidential Information to those employees and contractors with a need to\nknow; provided that Recipient binds those employees and contractors to terms at least as restrictive as those stated in this Agreement (or, with\nrespect to professional advisors, advises them of its obligations with respect to the Confidential Information); (b) not disclose any Confidential\nInformation to any third party, without Discloser’s prior written consent; (c) use such Confidential Information only to the extent required to\naccomplish the Purpose; (d) not reproduce Confidential Information in any form except as required to accomplish the Purpose; (e) not reverse\nengineer, decompile, or disassemble any software disclosed by the Discloser; (f) not directly or indirectly export or transmit any Confidential\nInformation to any country to which such export or transmission is restricted by regulation or statute; and (g) promptly provide the Discloser\nwith notice of any actual or threatened breach of the terms of this Agreement. However, Recipient may disclose Confidential Information in\naccordance with a judicial or other governmental order provided that Recipient shall give Discloser written notice prior to such disclosure.\nSubject to Recipient’s obligations of non-disclosure, Recipient shall be free to use the residuals resulting from the use or access to the\nConfidential Information of Discloser. The term “residuals” means information in intangible form which is retained in the unaided memory of\npersons who have had access to the Confidential Information, without reference to such information in tangible or fixed form. Solely with\nrespect to non-technical Confidential Information, Recipient’s obligations under this Section 3 shall expire one (1) year from the date of\ndisclosure of such non-technical Confidential Information.\n4. Ownership and Return of Confidential Information. All Confidential Information (including all copies thereof) shall remain the property of\nDiscloser. All copies shall bear all proprietary markings contained on or in the originals. Upon the request of Discloser, Recipient shall, at\nRecipient’s option, either (a) return such materials to Discloser, or (b) certify the destruction thereof.\n5. Rights. No rights or licenses to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted\nunder this Agreement. Subject to the obligations of this Agreement, neither party will be precluded from independently developing technology\nor pursuing business opportunities similar to those covered by the Confidential Information disclosed hereunder. Each party retains sole\ndiscretion to assign or reassign the job responsibilities of its employees. Each party acknowledges that the other party may currently or in the\nfuture be developing information internally, or receiving information from third parties, that is similar to the Confidential Information. Nothing\nin this Agreement will prohibit Recipient from developing or having developed for it products, concepts, systems or techniques that are similar\nto those contemplated by or embodied in the Confidential Information, provided the Recipient does not violate its obligations under this\nAgreement.\n6. Term and Termination. This Agreement shall remain in full force and effect for a period of three (3) years unless terminated sooner as set\nforth below. This Agreement may be terminated by either party upon thirty (30) days written notice, provided however, that Paragraphs 3, 4, 5,\nand 7 shall survive any termination of this Agreement.\n7. Miscellaneous. This Agreement shall be governed by the laws of the State of California. This Agreement contains the final, complete and\nexclusive agreement of the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and\nagreements relating to its subject matter and may not be changed, modified, amended or supplemented except by a written instrument signed\nby both parties. If any provision of this Agreement is found by a proper authority to be unenforceable, that provision shall be severed and the\nremainder of this Agreement will continue in full force and effect. Recipient hereby acknowledges and agrees that no remedy at law will afford\nDiscloser adequate protection against, or appropriate compensation for, breach of Recipient’s obligations under this Agreement. Accordingly,\nRecipient agrees that Discloser shall be entitled to specific performance of Recipient’s obligations, as well as such further equitable relief as\nmay be granted by a court of competent jurisdiction.\nPACKETEER, INC.\nOTHER PARTY:\nBy: /s/ Dave Côté\n/s/ Brian NeSmith\nBy: Dave Côté\nBy: Brian NeSmith\nTitle: President & CEO\nTitle: President & CEO\nDate: October 20, 2007\nDate: October 28, 2007
806858a7ab08e1c6ed751bfa1b036af4.pdf	effective_date jurisdiction party term	EX-10.4 12 dex104.htm FORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE AND NON-\nCOMPETE AGREEMENT\nEXHIBIT 10.4\nFORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE\nAND NON-COMPETE AGREEMENT BETWEEN ALCIS-CA AND\nOUR EMPLOYEES, CONSULTANTS AND OTHER THIRD-PARTY CONTRACTORS\nALCiS HEALTH, INC.\nCONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT\nAs an employee of ALCiS Health, Inc, its subsidiary or its affiliate (together, the “Company”), and in consideration of the compensation now\nand hereafter paid to me, I, the undersigned, agree to the following:\n1. Maintaining Confidential Information\na. Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board of Directors\nof the Company, any trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs,\nformulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans,\nfinancial information or other subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nb. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of my former or concurrent employers or companies, if any, and that I will not bring onto the premises of the\nCompany any unpublished document or any property belonging to my former or concurrent employers or companies, if any, unless consented to in\nwriting by said employers or companies.\nc. Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree that I owe the Company and such third parties, during the term of my employment and thereafter, a duty to hold all such\nconfidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation (except as necessary in\ncarrying out my work for the Company consistent with the Company’s agreement with such third party) or to use it for the benefit of anyone other\nthan for the Company or such third party (consistent with the Company’s agreement with such third party) without the express written authorization\nof the Board of Directors of the Company.\n2. Retaining and Assigning Inventions and Original Works\na. Inventions and Original Works Retained by Me. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company, which belong to\nme, which relate to the Company’s proposed business and products, and which are not assigned to the Company; or, if no such list is attached, I\nrepresent that there are no such inventions.\nb. Inventions and Original Works Assigned to the Company. I agree that I will promptly\nmake full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and will assign to the Company all my\nright, title, and interest in and to any and all inventions, original works of authorship, developments, improvements or trade secrets which I may\nsolely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time I\nam in the employ of the Company. I recognize, however, that Section 2870 of the California Labor Code (as set forth in Exhibit B attached hereto)\nexempts from this provision any invention as to which I can prove the following:\n(i) It was developed entirely on my own time; and\n(ii) No equipment, supplies, facilities or trade secrets of the Company were used in its development; and\n(iii) It either\n(aa) does not relate, at the time the invention was conceived or reduced to practice, to the Company’s business or to the\nCompany’s actual or demonstrably anticipated research and development; or\n(bb) does not result from any work performed by me for the Company.\nI acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my\nemployment and which are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USCA,\nSection 101).\nc. Maintenance of Records. I agree to keep and maintain adequate and current written records of all inventions and original works of\nauthorship made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of\nnotes, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property\nof the Company at all times.\nd. Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to any and\nall inventions, original works of authorship, developments, improvements or trade secrets whenever such full title is required to be in the United\nStates by a contract between the Company and the United States or any of its agencies.\ne. Obtaining Letters Patent and Copyright Registrations. I agree that my obligation to assist the Company to obtain United States or foreign\nletters patent and copyright registrations covering inventions and original works of authorship assigned hereunder to the Company shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate for time actually spent by me at the\nCompany’s request on such assistance. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my\nsignature to apply for or to pursue any application for any United States or foreign letters patent or copyright registrations covering inventions or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly\nauthorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to\ndo all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or\nmay hereafter have for infringement of any patents or copyrights, resulting from any such application for letters patent or copyright registrations\nassigned hereunder to the Company.\nf. Exception to Assignments. I understand that the provisions of this Agreement requiring assignment to the Company do not apply to any\ninvention which qualifies fully under the provisions of Section 2870 of the California Labor Code, a copy of which is attached hereto as Exhibit B. I\nwill advise the Company promptly in writing of any inventions, original works of authorship, developments, improvements or trade secrets that I\nbelieve meet the criteria in Subparagraphs 2b(i), (ii), and (iii) above; and I will at that time provide to the Company in writing all evidence necessary\nto substantiate that belief. I understand that the Company will keep in confidence and will not disclose to third parties without my consent any\nconfidential information disclosed in writing to the Company relating to inventions that qualify fully under the provisions of Section 2870 of the\nCalifornia Labor Code.\n3. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n4. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep\nin my possession or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications,\ndrawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items belonging to the\nCompany, its successors or assigns. In the event of the termination of my employment, I agree to sign and deliver the “Termination Certification”\nattached hereto as Exhibit C.\n5. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I represent\nthat my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me\nin confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any oral or written\nagreement in conflict herewith.\n6. General Provisions\na. Governing Law. This Agreement will be governed by the laws of the State of California.\nb. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under\nthis agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nc. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\nd. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will\nbe for the benefit of the Company, its successors, and its assigns.\nDate:\nName:\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number\nor Brief Description\nName of Employee:\nEXHIBIT B\nCALIFORNIA LABOR CODE SECTION 2870\nEMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated\nresearch or development of the employer.\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\nEXHIBIT C\nALCiS HEALTH, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to ALCiS Health, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s Confidential Information and Inventions Agreement signed by me,\nincluding the reporting of any inventions and original works of authorship (as defined therein), conceived or made by me (solely or jointly with\nothers) covered by that agreement.\nI further agree that, in compliance with the Employee Confidential Information and Inventions Agreement, I will preserve as confidential all trade\nsecrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs, formulas, developmental\nor experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans, financial information or\nother subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nDate:\nName:\nNondisclosure and Non-Circumvention Agreement\nTHIS AGREEMENT is made this day of\n, 2006 (the “Effective Date”), by and between ALCIS HEALTH, INC. (“Company”) and\n(“Recipient”).\nThe undersigned intend to engage in discussions concerning the Company’s actual or proposed technology, technology acquisitions (including but\nnot limited to acquisition of patented anti-inflammatory and liposomal delivery system technologies), designs, concepts, innovations, products and/or\nservices of Company and plans, studies or projections with respect thereto, all of which are non-public and unannounced, relating to the Company’s\ncurrent and planned products (hereinafter collectively referred to as the “Company Business”);\nWhereas Recipient desires to obtain certain information for the sole purpose of entering into a business or investment relationship with the Company,\nunderstanding that the Contact Sources are important and valuable to the Company’s current and future business ventures, and whereas Recipient has\nno intent to partner with such Contact Sources in a manner which is not in Company’s best interests;\nWhereas, because such discussions may require disclosure of information considered confidential and proprietary by Company, including the\nidentity of the current owner of the patented anti-inflammatory and liposomal delivery system technologies, and because Company will participate in\nsuch discussions only upon the understanding set forth herein, Recipient agrees with Company that Recipient will maintain the secrecy of such\ninformation as set forth below;\nFor good and valuable consideration, which is hereby acknowledged as received, the parties agree as follows:\n(1) For the purposes of establishing and enforcing this Agreement, the parties do hereby agree upon the following definitions as used herein:\n“Representative Relationship” shall be interpreted to mean any agent, licensee, employment or independent contractor relationship\nentered into for the purpose of providing or receiving funds, license rights, technology, products and/or services from or to the Contact\nSource.\n“Contact Source” shall be interpreted to mean any person, partnership, corporation or other legal entity, including but not limited to those\npersons, partnerships, corporations or other legal entities with whom Company has a current working relationship.\n(2) For each Contact Source disclosed by Company, the term (“Term”) of this Agreement shall commence on the Effective Date and continue until\nthree (3) years after the date Company’s contractual relationship with such Contact Source terminates. The Term for any Contact Source shall extend\nto and continue during any Company/Contact Source contract renewal periods. During the Term, Recipient does hereby agree that neither Recipient\nnor Recipient’s employees, agents, consultants, corporations, divisions, subsidiaries or partnerships or any other person, group or entity associated\nwith Recipient, will make contact with, attempt to deal with or enter into (i) any competitive contract with such Contact Source, (ii) any contract or\nrelationship with such Contact Source which is harmful to Company’s interests or (iii) any Representative Relationship with any Contact Source\nintroduced to Recipient by agents or principals of Company, without Company’s prior written consent to such contract or relationship, which may be\nwithheld in Company’s reasonable discretion.\n(3) Recipient does hereby agree to keep confidential and not to disclose the name, address, telephone, and fax number(s) of any Contact Source\nintroduced to Recipient by agents or principals of Company, as well as any other confidential information that Recipient receives during the Term.\nRecipient does further agree and acknowledge that such information, including the identity and means of contact of any Contact Source introduced\nto Recipient by agents or principals of Company, is the proprietary information, trade secret and property of Company and shall so remain for the\nTerm. Upon termination of discussions or upon the written request of Company, Recipient will return forthwith all written or descriptive matter of\nevery kind including but not limited to models, prototypes, notes, documents, etc. which contain such Confidential Information. Recipient agrees to\nhold each item of Confidential Information received in confidence until three (3) years after the expiration or termination of this Agreement.\n(4) “Confidential Information”, as used herein, shall mean all information, noted as “Confidential” as set forth below, which is disclosed or\notherwise provided by Company, or any representations thereof which relates to or refers to Company information, business strategy, and\ntechnology. Confidential Information shall not include such information:\na.\nwhich was in the public domain prior to any such disclosure by Company;\nb.\nwhich, after disclosure by Company, comes into the public domain through no fault of the Recipient;\nc.\nwhich is disclosed to Recipient by a third party lawfully and with a legitimate right to disclose; or\nd.\nwhich was in the legitimate possession of Recipient prior to such disclosure as evidenced by Recipient’s written records.\nRecipient will hold all Confidential Information in trust and confidence; and will not at any time, without the prior written consent of Company,\ndisclose Confidential Information to any person other than an employee of Recipient who is bound to maintain the confidentiality of such\nConfidential Information and who has an actual need to know such Confidential Information in order to advance the purposes of this Agreement and\nthe discussions pursuant hereto; and, will not use or employ any Confidential Information in connection with any business or commercial activity\nwhich is separate from or does not involve Company. Notwithstanding the definition of Company Information, and notwithstanding the public filing\nstatus of the anti-inflammatory and liposomal delivery system patents, Recipient will not discuss the anti-inflammatory and liposomal delivery\nsystem patents or their availability for acquisition with any party other than the Company for a period of 3 years from execution of this agreement.\n(5) In the event that any litigation is commenced between the Recipient and Company relative to this Agreement or the rights and duties of the\nRecipient or Company under this Agreement, the prevailing party in any such litigation shall be entitled, in addition to such relief as may be granted,\nto the actual sum expended for attorneys’ fees and court costs as determined by the court in such litigation. Should any part or provision of this\nAgreement be deemed invalid or unenforceable, it is the intention of the parties hereto that the remaining portions of the Agreement shall remain in\nfull force and effect. This Agreement shall be binding upon and inure to the benefit of the successors, heirs, assignees, agents and principals of the\nparties hereto. This Agreement shall not be modified or amended except in writing and signed by the parties hereto and specifically referring to this\nAgreement. This Agreement shall be construed under the laws of California, United States of America and any dispute arising out of this Agreement\nshall be adjudicated in a court in the State of California, United States of America.\nIN WITNESS WHEREOF, this Agreement is executed in the City of San Jose, County of Santa Clara, pursuant to the Laws of the State of California\non the date first hereinabove written.\nALCIS HEALTH, INC.\nRecipient:\n560 S. Winchester Blvd., Fifth Floor, San Jose, CA 95120\nSignature _____________________________________\nSignature ____________________________________\nName ________________________________________\nName _______________________________________\nTitle _________________________________________\nTitle ________________________________________\nDate:\n, 2006\n, 2006	EX-10.4 12 dex104.htm FORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE AND NON-\nCOMPETE AGREEMENT\nEXHIBIT 10.4\nFORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE\nAND NON-COMPETE AGREEMENT BETWEEN ALCIS-CAAND\nOUR EMPLOYEES, CONSULTANTS AND OTHER THIRD-PARTY CONTRACTORS\nALCiS HEALTH, INC.\nCONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT\nAs an employee of ALCiS Health, Inc, its subsidiary or its affiliate (together, the “Company”), and in consideration of the compensation now\nand hereafter paid to me, I, the undersigned, agree to the following:\n1. Maintaining Confidential Information\na. Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board of Directors\nof the Company, any trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs,\nformulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans,\nfinancial information or other subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nb. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of my former or concurrent employers or companies, if any, and that I will not bring onto the premises of the\nCompany any unpublished document or any property belonging to my former or concurrent employers or companies, if any, unless consented to in\nwriting by said employers or companies.\nc. Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree that I owe the Company and such third parties, during the term of my employment and thereafter, a duty to hold all such\nconfidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation (except as necessary in\ncarrying out my work for the Company consistent with the Company’s agreement with such third party) or to use it for the benefit of anyone other\nthan for the Company or such third party (consistent with the Company’s agreement with such third party) without the express written authorization\nof the Board of Directors of the Company.\na. Inventions and Original Works Retained by Me. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company, which belong to\nme, which relate to the Company’s proposed business and products, and which are not assigned to the Company; or, if no such list is attached, I\nrepresent that there are no such inventions.\nb. Inventions and Original Works Assigned to the Company. I agree that I will promptly\nmake full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and will assign to the Company all my\nright, title, and interest in and to any and all inventions, original works of authorship, developments, improvements or trade secrets which I may\nsolely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time I\nam in the employ of the Company. I recognize, however, that Section 2870 of the California Labor Code (as set forth in Exhibit B attached hereto)\nexempts from this provision any invention as to which I can prove the following:\n(i) It was developed entirely on my own time; and\n(ii) No equipment, supplies, facilities or trade secrets of the Company were used in its development; and\n(iii) Tt either\n(aa) does not relate, at the time the invention was conceived or reduced to practice, to the Company’s business or to the\nCompany’s actual or demonstrably anticipated research and development; or\n(bb) does not result from any work performed by me for the Company.\nI acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my\nemployment and which are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USCA,\nSection 101).\nc. Maintenance of Records. I agree to keep and maintain adequate and current written records of all inventions and original works of\nauthorship made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of\nnotes, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property\nof the Company at all times.\nd. Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to any and\nall inventions, original works of authorship, developments, improvements or trade secrets whenever such full title is required to be in the United\nStates by a contract between the Company and the United States or any of its agencies.\ne. Obtaining Letters Patent and Copyright Registrations. I agree that my obligation to assist the Company to obtain United States or foreign\nletters patent and copyright registrations covering inventions and original works of authorship assigned hereunder to the Company shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate for time actually spent by me at the\nCompany’s request on such assistance. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my\nsignature to apply for or to pursue any application for any United States or foreign letters patent or copyright registrations covering inventions or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly\nauthorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to\ndo all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or\nmay hereafter have for infringement of any patents or copyrights, resulting from any such application for letters patent or copyright registrations\nassigned hereunder to the Company.\nf. Exception to Assignments. I understand that the provisions of this Agreement requiring assignment to the Company do not apply to any\ninvention which qualifies fully under the provisions of Section 2870 of the California Labor Code, a copy of which is attached hereto as Exhibit B. I\nwill advise the Company promptly in writing of any inventions, original works of authorship, developments, improvements or trade secrets that I\nbelieve meet the criteria in Subparagraphs 2b(i), (ii), and (iii) above; and I will at that time provide to the Company in writing all evidence necessary\nto substantiate that belief. I understand that the Company will keep in confidence and will not disclose to third parties without my consent any\nconfidential information disclosed in writing to the Company relating to inventions that qualify fully under the provisions of Section 2870 of the\nCalifornia Labor Code.\n3. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n4. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep\nin my possession or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications,\ndrawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items belonging to the\nCompany, its successors or assigns. In the event of the termination of my employment, I agree to sign and deliver the “Termination Certification”\nattached hereto as Exhibit C.\n5. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I represent\nthat my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me\nin confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any oral or written\nagreement in conflict herewith.\n6. General Provisions\na. Governing Law. This Agreement will be governed by the laws of the State of California.\nb. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under\nthis agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nc. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\nd. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will\nbe for the benefit of the Company, its successors, and its assigns.\nDate:\nName:\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nIdentifying Number\nTitle Date or Brief Description\nName of Employee:\nEXHIBIT B\nCALIFORNIA LABOR CODE SECTION 2870\nEMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated\nresearch or development of the employer.\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\nEXHIBIT C\nALCiS HEALTH, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to ALCiS Health, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s Confidential Information and Inventions Agreement signed by me,\nincluding the reporting of any inventions and original works of authorship (as defined therein), conceived or made by me (solely or jointly with\nothers) covered by that agreement.\nI further agree that, in compliance with the Employee Confidential Information and Inventions Agreement, I will preserve as confidential all trade\nsecrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs, formulas, developmental\nor experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans, financial information or\nother subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nDate:\nName:\nNondisclosure and Non-Circumvention Agreement\nTHIS AGREEMENT is made this __ day of , 2006 (the “Effective Date”), by and between ALCIS HEALTH, INC. (“Company”) and\n(“Recipient”).\nThe undersigned intend to engage in discussions concerning the Company’s actual or proposed technology, technology acquisitions (including but\nnot limited to acquisition of patented anti-inflammatory and liposomal delivery system technologies), designs, concepts, innovations, products and/or\nservices of Company and plans, studies or projections with respect thereto, all of which are non-public and unannounced, relating to the Company’s\ncurrent and planned products (hereinafter collectively referred to as the “Company Business™);\nWhereas Recipient desires to obtain certain information for the sole purpose of entering into a business or investment relationship with the Company,\nunderstanding that the Contact Sources are important and valuable to the Company’s current and future business ventures, and whereas Recipient has\nno intent to partner with such Contact Sources in a manner which is not in Company’s best interests;\nWhereas, because such discussions may require disclosure of information considered confidential and proprietary by Company, including the\nidentity of the current owner of the patented anti-inflammatory and liposomal delivery system technologies, and because Company will participate in\nsuch discussions only upon the understanding set forth herein, Recipient agrees with Company that Recipient will maintain the secrecy of such\ninformation as set forth below;\nFor good and valuable consideration, which is hereby acknowledged as received, the parties agree as follows:\n(1) For the purposes of establishing and enforcing this Agreement, the parties do hereby agree upon the following definitions as used herein:\n“Representative Relationship” shall be interpreted to mean any agent, licensee, employment or independent contractor relationship\nentered into for the purpose of providing or receiving funds, license rights, technology, products and/or services from or to the Contact\nSource.\n“Contact Source” shall be interpreted to mean any person, partnership, corporation or other legal entity, including but not limited to those\npersons, partnerships, corporations or other legal entities with whom Company has a current working relationship.\n(2) For each Contact Source disclosed by Company, the term (“Term”) of this Agreement shall commence on the Effective Date and continue until\nthree (3) years after the date Company’s contractual relationship with such Contact Source terminates. The Term for any Contact Source shall extend\nto and continue during any Company/Contact Source contract renewal periods. During the Term, Recipient does hereby agree that neither Recipient\nnor Recipient’s employees, agents, consultants, corporations, divisions, subsidiaries or partnerships or any other person, group or entity associated\nwith Recipient, will make contact with, attempt to deal with or enter into (i) any competitive contract with such Contact Source, (ii) any contract or\nrelationship with such Contact Source which is harmful to Company’s interests or (iii) any Representative Relationship with any Contact Source\nintroduced to Recipient by agents or principals of Company, without Company’s prior written consent to such contract or relationship, which may be\nwithheld in Company’s reasonable discretion.\n(3) Recipient does hereby agree to keep confidential and not to disclose the name, address, telephone, and fax number(s) of any Contact Source\nintroduced to Recipient by agents or principals of Company, as well as any other confidential information that Recipient receives during the Term.\nRecipient does further agree and acknowledge that such information, including the identity and means of contact of any Contact Source introduced\nto Recipient by agents or principals of Company, is the proprietary information, trade secret and property of Company and shall so remain for the\nTerm. Upon termination of discussions or upon the written request of Company, Recipient will return forthwith all written or descriptive matter of\nevery kind including but not limited to models, prototypes, notes, documents, etc. which contain such Confidential Information. Recipient agrees to\nhold each item of Confidential Information received in confidence until three (3) years after the expiration or termination of this Agreement.\n(4) “Confidential Information”, as used herein, shall mean all information, noted as “Confidential” as set forth below, which is disclosed or\notherwise provided by Company, or any representations thereof which relates to or refers to Company information, business strategy, and\ntechnology. Confidential Information shall not include such information:\na which was in the public domain prior to any such disclosure by Company;\nb.  which, after disclosure by Company, comes into the public domain through no fault of the Recipient;\nc.  which is disclosed to Recipient by a third party lawfully and with a legitimate right to disclose; or\nd.  which was in the legitimate possession of Recipient prior to such disclosure as evidenced by Recipient’s written records.\nRecipient will hold all Confidential Information in trust and confidence; and will not at any time, without the prior written consent of Company,\ndisclose Confidential Information to any person other than an employee of Recipient who is bound to maintain the confidentiality of such\nConfidential Information and who has an actual need to know such Confidential Information in order to advance the purposes of this Agreement and\nthe discussions pursuant hereto; and, will not use or employ any Confidential Information in connection with any business or commercial activity\nwhich is separate from or does not involve Company. Notwithstanding the definition of Company Information, and notwithstanding the public filing\nstatus of the anti-inflammatory and liposomal delivery system patents, Recipient will not discuss the anti-inflammatory and liposomal delivery\nsystem patents or their availability for acquisition with any party other than the Company for a period of 3 years from execution of this agreement.\n(5) In the event that any litigation is commenced between the Recipient and Company relative to this Agreement or the rights and duties of the\nRecipient or Company under this Agreement, the prevailing party in any such litigation shall be entitled, in addition to such relief as may be granted,\nto the actual sum expended for attorneys’ fees and court costs as determined by the court in such litigation. Should any part or provision of this\nAgreement be deemed invalid or unenforceable, it is the intention of the parties hereto that the remaining portions of the Agreement shall remain in\nfull force and effect. This Agreement shall be binding upon and inure to the benefit of the successors, heirs, assignees, agents and principals of the\nparties hereto. This Agreement shall not be modified or amended except in writing and signed by the parties hereto and specifically referring to this\nAgreement. This Agreement shall be construed under the laws of California, United States of America and any dispute arising out of this Agreement\nshall be adjudicated in a court in the State of California, United States of America.\nIN WITNESS WHEREOF, this Agreement is executed in the City of San Jose, County of Santa Clara, pursuant to the Laws of the State of California\non the date first hereinabove written.\nALCIS HEALTH, INC. Recipient:\n560 S. Winchester Blvd., Fifth Floor, San Jose, CA 95120\n \n \n \n \nSignature Signature\nName Name\nTitle Title\n \n \nDate: , 2006 , 2006	EX-10.4 12 lex104.htm FORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE AND NON-\nCOMPETE AGREEMENT\nEXHIBIT 10.4\nFORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE\nAND NON-COMPETE AGREEMENT BETWEEN ALCIS-CAAND\nOUR EMPLOYEES, CONSULTANTS AND OTHER THIRD-PARTY CONTRACTORS\nALCiS HEALTH, INC.\nCONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT\nAs an employee of ALCiS Health, Inc, its subsidiary or its affiliate (together, the "Company"), and in consideration of the compensation now\nand hereafter paid to me, I, the undersigned, agree to the following:\n1. Maintaining Confidential Information\na.\nCompany Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board of Directors\nof\nthe Company, any trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs,\nformulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans,\nfinancial information or other subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nb. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of my former or concurrent employers or companies, if any, and that I will not bring onto the premises of the\nCompany any unpublished document or any property belonging to my former or concurrent employers or companies, if any, unless consented to in\nwriting by said employers or companies.\nc. Third Party. Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information subject to a duty on the Company's part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree that I owe the Company and such third parties, during the term of my employment and thereafter, a duty to hold all such\nconfidential\nor\nproprietary information in the strictest confidence and not to disclose it to any person, firm or corporation (except as necessary\nin\ncarrying out my work for the Company consistent with the Company's agreement with such third party) or to use it for the benefit of anyone other\nthan for the Company or such third party (consistent with the Company's agreement with such third party) without the express written authorization\nof the Board of Directors of the Company.\n2. Retaining and Assigning Inventions and Original Works\na. Inventions and Original Works Retained by Me. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company, which belong to\nme, which relate to the Company's proposed business and products, and which are not assigned to the Company; or, if no such list is attached, I\nrepresent that there are no such inventions.\nb. Inventions and Original Works Assigned to the Company. I agree that I will promptly\nmake full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and will assign to the Company all my\nright, title, and interest in and to any and all inventions, original works of authorship, developments, improvements or trade secrets which I may\nsolely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time\nI\nam in the employ of the Company. I recognize, however, that Section 2870 of the California Labor Code (as set forth in Exhibit B attached hereto)\nexempts from this provision any invention as to which I can prove the following:\n(i) It was developed entirely on my own time; and\n(ii) No equipment, supplies, facilities or trade secrets of the Company were used in its development; and\n(iii) It either\n(aa) does not relate, at the time the invention was conceived or reduced to practice, to the Company's business or to\nthe\nCompany's actual or demonstrably anticipated research and development; or\n(bb) does not result from any work performed by me for the Company.\nI acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my\nemployment and which are protectable by copyright are "works made for hire," as that term is defined in the United States Copyright Act (17 USCA,\nSection 101).\nC. Maintenance of Records. I agree to keep and maintain adequate and current written records of all inventions and original works of\nauthorship made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of\nnotes, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property\nof the Company at all times.\nd. Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to any and\nall inventions, original works of authorship, developments, improvements or trade secrets whenever such full title is required to be in the United\nStates by a contract between the Company and the United States or any of its agencies.\ne. Obtaining Letters Patent and Copyright Registrations. I agree that my obligation to assist the Company to obtain United States or foreign\nletters patent and copyright registrations covering inventions and original works of authorship assigned hereunder to the Company shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate for time actually spent by me at the\nCompany's request on such assistance. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my\nsignature to apply for or to pursue any application for any United States or foreign letters patent or copyright registrations covering inventions or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly\nauthorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to\ndo all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now\nor\nmay hereafter have for infringement of any patents or copyrights, resulting from any such application for letters patent or copyright registrations\nassigned hereunder to the Company.\nf. Exception to Assignments. I understand that the provisions of this Agreement requiring assignment to the Company do not apply to any\ninvention which qualifies fully under the provisions of Section 2870 of the California Labor Code, a copy of which is attached hereto as Exhibit B.\nI\nwill advise the Company promptly in writing of any inventions, original works of authorship, developments, improvements or trade secrets that\nI\nbelieve meet the criteria in Subparagraphs 2b(i), (ii), and (iii) above; and I will at that time provide to the Company in writing all evidence necessary\nto substantiate that belief. I understand that the Company will keep in confidence and will not disclose to third parties without my consent any\nconfidential information disclosed in writing to the Company relating to inventions that qualify fully under the provisions of Section 2870 of the\nCalifornia Labor Code.\n3. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n4. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep\nin my possession or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications,\ndrawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items belonging to the\nCompany, its successors or assigns. In the event of the termination of my employment, I agree to sign and deliver the "Termination Certification"\nattached hereto as Exhibit C.\n5. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I represent\nthat my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me\nin confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any oral or written\nagreement in conflict herewith.\n6. General Provisions\na. Governing Law. This Agreement will be governed by the laws of the State of California.\nb. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under\nthis agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nC. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\nd. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will\nbe for the benefit of the Company, its successors, and its assigns.\nDate:\nName:\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nIdentifying Number\nTitle\nDate\nor Brief Description\nName of Employee:\nEXHIBIT B\nCALIFORNIA LABOR CODE SECTION 2870\nEMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS\n"(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated\nresearch or development of the employer.\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."\nEXHIBIT C\nALCiS HEALTH, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to ALCiS Health, Inc., its subsidiaries, affiliates, successors or assigns (together, the "Company").\nI further certify that I have complied with all the terms of the Company's Confidential Information and Inventions Agreement signed by me,\nincluding the reporting of any inventions and original works of authorship (as defined therein), conceived or made by me (solely or jointly with\nothers) covered by that agreement.\nI further agree that, in compliance with the Employee Confidential Information and Inventions Agreement, I will preserve as confidentia all trade\nsecrets,\nconfidential knowledge, data or other proprietary information relating to products, processes, know-how, designs, formulas, developmental\nor experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans, financial information or\nother subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nDate:\nName:\nNondisclosure and Non-Circumvention Agreement\nTHIS AGREEMENT is made this\nday\nof\n2006 (the "Effective Date"), by and between ALCIS HEALTH, INC. ("Company") and\n("Recipient").\nThe undersigned intend to engage in discussions concerning the Company's actual or proposed technology, technology acquisitions (including but\nnot limited to acquisition of patented anti-inflammatory and liposomal delivery system technologies), designs, concepts, innovations, products and/or\nservices of Company and plans, studies or projections with respect thereto, all of which are non-public and unannounced, relating to the Company's\ncurrent and planned products (hereinafter collectively referred to as the "Company Business");\nWhereas Recipient desires to obtain certain information for the sole purpose of entering into a business or investment relationship with the Company,\nunderstanding that the Contact Sources are important and valuable to the Company's current and future business ventures, and whereas\nRecipient\nhas\nno intent to partner with such Contact Sources in a manner which is not in Company's best interests;\nWhereas, because such discussions may require disclosure of information considered confidential and proprietary by Company, including the\nidentity of the current owner of the patented anti-inflammatory and liposomal delivery system technologies, and because Company will participate in\nsuch discussions only upon the understanding set forth herein, Recipient agrees with Company that Recipient will maintain the secrecy of such\ninformation as set forth below;\nFor good and valuable consideration, which is hereby acknowledged as received, the parties agree as follows:\n(1) For the purposes of establishing and enforcing this Agreement, the parties do hereby agree upon the following definitions as used herein:\n"Representative Relationship" shall be interpreted to mean any agent, licensee, employment or independent contractor relationship\nentered into for the purpose of providing or receiving funds, license rights, technology, products and/or services from or to the Contact\nSource.\n"Contact Source" shall be interpreted to mean any person, partnership, corporation or other legal entity, including but not limited to those\npersons, partnerships, corporations or other legal entities with whom Company has a current working relationship.\n(2) For each Contact Source disclosed by Company, the term ("Term") of this Agreement shall commence on the Effective Date and continue until\nthree (3) years after the date Company's contractual relationship with such Contact Source terminates. The Term for any Contact Source\nshall\nextend\nto and continue during any Company/Contact Source contract renewal periods. During the Term, Recipient does hereby agree that neither Recipient\nnor Recipient's employees, agents, consultants, corporations, divisions, subsidiaries or partnerships or any other person, group or entity associated\nwith Recipient, will make contact with, attempt to deal with or enter into (i) any competitive contract with such Contact Source, (ii) any contract or\nrelationship with such Contact Source which is harmful to Company's interests or (iii) any Representative Relationship with any Contact Source\nintroduced to Recipient by agents or principals of Company, without Company's prior written consent to such contract or relationship, which may\nbe\nwithheld in Company's reasonable discretion.\n(3) Recipient does hereby agree to keep confidential and not to disclose the name, address, telephone, and fax number(s) of any Contact Source\nintroduced to Recipient by agents or principals of Company, as well as any other confidential information that Recipient receives during the Term.\nRecipient does further agree and acknowledge that such information, including the identity and means of contact of any Contact Source introduced\nto Recipient by agents or principals of Company, is the proprietary information, trade secret and property of Company and shall so remain for\nthe\nTerm. Upon termination of discussions or upon the written request of Company, Recipient will return forthwith all written or descriptive matter\nof\nevery kind including but not limited to models, prototypes, notes, documents, etc. which contain such Confidential Information. Recipient agrees to\nhold each item of Confidential Information received in confidence until three (3) years after the expiration or termination of this Agreement.\n(4) "Confidential Information", as used herein, shall mean all information, noted as "Confidential" as set forth below, which is disclosed\nor\notherwise provided by Company, or any representations thereof which relates to or refers to Company information, business strategy, and\ntechnology. Confidential Information shall not include such information:\na.\nwhich was in the public domain prior to any such disclosure by Company;\nb.\nwhich, after disclosure by Company, comes into the public domain through no fault of the Recipient;\nC.\nwhich is disclosed to Recipient by a third party lawfully and with a legitimate right to disclose; or\nd.\nwhich was in the legitimate possession of Recipient prior to such disclosure as evidenced by Recipient's written records.\nRecipient will hold all Confidential Information in trust and confidence; and will not at any time, without the prior written consent of Company,\ndisclose Confidential Information to any person other than an employee of Recipient who is bound to maintain the confidentiality of such\nConfidential Information and who has an actual need to know such Confidential Information in order to advance the purposes of this Agreement and\nthe discussions pursuant hereto; and, will not use or employ any Confidential Information in connection with any business or commercial activity\nwhich is separate from or does not involve Company. Notwithstanding the definition of Company Information, and notwithstanding the public filing\nstatus of the anti-inflammatory and liposomal delivery system patents, Recipient will not discuss the anti-inflammatory and liposomal delivery\nsystem patents or their availability for acquisition with any party other than the Company for a period of 3 years from execution of this agreement.\n(5) In the event that any litigation is commenced between the Recipient and Company relative to this Agreement or the rights and duties of the\nRecipient or Company under this Agreement, the prevailing party in any such litigation shall be entitled, in addition to such relief as may be granted,\nto the actual sum expended for attorneys' fees and court costs as determined by the court in such litigation. Should any part or provision of this\nAgreement be deemed invalid or unenforceable, it is the intention of the parties hereto that the remaining portions of the Agreement shall remain in\nfull force and effect. This Agreement shall be binding upon and inure to the benefit of the successors, heirs, assignees, agents and principals of the\nparties hereto. This Agreement shall not be modified or amended except in writing and signed by the parties hereto and specifically referring to this\nAgreement. This Agreement shall be construed under the laws of California, United States of America and any dispute arising out of this Agreement\nshall be adjudicated in a court in the State of California, United States of America.\nIN WITNESS WHEREOF, this Agreement is executed in the City of San Jose, County of Santa Clara, pursuant to the Laws of the State of California\non the date first hereinabove written.\nALCIS HEALTH, INC.\nRecipient:\n560 S. Winchester Blvd., Fifth Floor, San Jose, CA 95120\nSignature\nSignature\nName\nName\nTitle\nTitle\nDate:\n2006\n., 2006	EX-10.4 12 dex104.htm FORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE AND NON-\nCOMPETE AGREEMENT\nEXHIBIT 10.4\nFORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE\nAND NON-COMPETE AGREEMENT BETWEEN ALCIS-CA AND\nOUR EMPLOYEES, CONSULTANTS AND OTHER THIRD-PARTY CONTRACTORS\nALCiS HEALTH, INC.\nCONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT\nAs an employee of ALCiS Health, Inc, its subsidiary or its affiliate (together, the “Company”), and in consideration of the compensation now\nand hereafter paid to me, I, the undersigned, agree to the following:\n1. Maintaining Confidential Information\na. Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board of Directors\nof the Company, any trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs,\nformulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans,\nfinancial information or other subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nb. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of my former or concurrent employers or companies, if any, and that I will not bring onto the premises of the\nCompany any unpublished document or any property belonging to my former or concurrent employers or companies, if any, unless consented to in\nwriting by said employers or companies.\nc. Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree that I owe the Company and such third parties, during the term of my employment and thereafter, a duty to hold all such\nconfidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation (except as necessary in\ncarrying out my work for the Company consistent with the Company’s agreement with such third party) or to use it for the benefit of anyone other\nthan for the Company or such third party (consistent with the Company’s agreement with such third party) without the express written authorization\nof the Board of Directors of the Company.\n2. Retaining and Assigning Inventions and Original Works\na. Inventions and Original Works Retained by Me. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company, which belong to\nme, which relate to the Company’s proposed business and products, and which are not assigned to the Company; or, if no such list is attached, I\nrepresent that there are no such inventions.\nb. Inventions and Original Works Assigned to the Company. I agree that I will promptly\nmake full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and will assign to the Company all my\nright, title, and interest in and to any and all inventions, original works of authorship, developments, improvements or trade secrets which I may\nsolely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time I\nam in the employ of the Company. I recognize, however, that Section 2870 of the California Labor Code (as set forth in Exhibit B attached hereto)\nexempts from this provision any invention as to which I can prove the following:\n(i) It was developed entirely on my own time; and\n(ii) No equipment, supplies, facilities or trade secrets of the Company were used in its development; and\n(iii) It either\n(aa) does not relate, at the time the invention was conceived or reduced to practice, to the Company’s business or to the\nCompany’s actual or demonstrably anticipated research and development; or\n(bb) does not result from any work performed by me for the Company.\nI acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my\nemployment and which are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USCA,\nSection 101).\nc. Maintenance of Records. I agree to keep and maintain adequate and current written records of all inventions and original works of\nauthorship made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of\nnotes, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property\nof the Company at all times.\nd. Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to any and\nall inventions, original works of authorship, developments, improvements or trade secrets whenever such full title is required to be in the United\nStates by a contract between the Company and the United States or any of its agencies.\ne. Obtaining Letters Patent and Copyright Registrations. I agree that my obligation to assist the Company to obtain United States or foreign\nletters patent and copyright registrations covering inventions and original works of authorship assigned hereunder to the Company shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate for time actually spent by me at the\nCompany’s request on such assistance. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my\nsignature to apply for or to pursue any application for any United States or foreign letters patent or copyright registrations covering inventions or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly\nauthorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to\ndo all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or\nmay hereafter have for infringement of any patents or copyrights, resulting from any such application for letters patent or copyright registrations\nassigned hereunder to the Company.\nf. Exception to Assignments. I understand that the provisions of this Agreement requiring assignment to the Company do not apply to any\ninvention which qualifies fully under the provisions of Section 2870 of the California Labor Code, a copy of which is attached hereto as Exhibit B. I\nwill advise the Company promptly in writing of any inventions, original works of authorship, developments, improvements or trade secrets that I\nbelieve meet the criteria in Subparagraphs 2b(i), (ii), and (iii) above; and I will at that time provide to the Company in writing all evidence necessary\nto substantiate that belief. I understand that the Company will keep in confidence and will not disclose to third parties without my consent any\nconfidential information disclosed in writing to the Company relating to inventions that qualify fully under the provisions of Section 2870 of the\nCalifornia Labor Code.\n3. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n4. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep\nin my possession or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications,\ndrawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items belonging to the\nCompany, its successors or assigns. In the event of the termination of my employment, I agree to sign and deliver the “Termination Certification”\nattached hereto as Exhibit C.\n5. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I represent\nthat my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me\nin confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any oral or written\nagreement in conflict herewith.\n6. General Provisions\na. Governing Law. This Agreement will be governed by the laws of the State of California.\nb. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under\nthis agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nc. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\nd. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will\nbe for the benefit of the Company, its successors, and its assigns.\nDate:\nName:\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number\nor Brief Description\nName of Employee:\nEXHIBIT B\nCALIFORNIA LABOR CODE SECTION 2870\nEMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated\nresearch or development of the employer.\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\nEXHIBIT C\nALCiS HEALTH, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to ALCiS Health, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s Confidential Information and Inventions Agreement signed by me,\nincluding the reporting of any inventions and original works of authorship (as defined therein), conceived or made by me (solely or jointly with\nothers) covered by that agreement.\nI further agree that, in compliance with the Employee Confidential Information and Inventions Agreement, I will preserve as confidential all trade\nsecrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs, formulas, developmental\nor experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans, financial information or\nother subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nDate:\nName:\nNondisclosure and Non-Circumvention Agreement\nTHIS AGREEMENT is made this day of\n, 2006 (the “Effective Date”), by and between ALCIS HEALTH, INC. (“Company”) and\n(“Recipient”).\nThe undersigned intend to engage in discussions concerning the Company’s actual or proposed technology, technology acquisitions (including but\nnot limited to acquisition of patented anti-inflammatory and liposomal delivery system technologies), designs, concepts, innovations, products and/or\nservices of Company and plans, studies or projections with respect thereto, all of which are non-public and unannounced, relating to the Company’s\ncurrent and planned products (hereinafter collectively referred to as the “Company Business”);\nWhereas Recipient desires to obtain certain information for the sole purpose of entering into a business or investment relationship with the Company,\nunderstanding that the Contact Sources are important and valuable to the Company’s current and future business ventures, and whereas Recipient has\nno intent to partner with such Contact Sources in a manner which is not in Company’s best interests;\nWhereas, because such discussions may require disclosure of information considered confidential and proprietary by Company, including the\nidentity of the current owner of the patented anti-inflammatory and liposomal delivery system technologies, and because Company will participate in\nsuch discussions only upon the understanding set forth herein, Recipient agrees with Company that Recipient will maintain the secrecy of such\ninformation as set forth below;\nFor good and valuable consideration, which is hereby acknowledged as received, the parties agree as follows:\n(1) For the purposes of establishing and enforcing this Agreement, the parties do hereby agree upon the following definitions as used herein:\n“Representative Relationship” shall be interpreted to mean any agent, licensee, employment or independent contractor relationship\nentered into for the purpose of providing or receiving funds, license rights, technology, products and/or services from or to the Contact\nSource.\n“Contact Source” shall be interpreted to mean any person, partnership, corporation or other legal entity, including but not limited to those\npersons, partnerships, corporations or other legal entities with whom Company has a current working relationship.\n(2) For each Contact Source disclosed by Company, the term (“Term”) of this Agreement shall commence on the Effective Date and continue until\nthree (3) years after the date Company’s contractual relationship with such Contact Source terminates. The Term for any Contact Source shall extend\nto and continue during any Company/Contact Source contract renewal periods. During the Term, Recipient does hereby agree that neither Recipient\nnor Recipient’s employees, agents, consultants, corporations, divisions, subsidiaries or partnerships or any other person, group or entity associated\nwith Recipient, will make contact with, attempt to deal with or enter into (i) any competitive contract with such Contact Source, (ii) any contract or\nrelationship with such Contact Source which is harmful to Company’s interests or (iii) any Representative Relationship with any Contact Source\nintroduced to Recipient by agents or principals of Company, without Company’s prior written consent to such contract or relationship, which may be\nwithheld in Company’s reasonable discretion.\n(3) Recipient does hereby agree to keep confidential and not to disclose the name, address, telephone, and fax number(s) of any Contact Source\nintroduced to Recipient by agents or principals of Company, as well as any other confidential information that Recipient receives during the Term.\nRecipient does further agree and acknowledge that such information, including the identity and means of contact of any Contact Source introduced\nto Recipient by agents or principals of Company, is the proprietary information, trade secret and property of Company and shall so remain for the\nTerm. Upon termination of discussions or upon the written request of Company, Recipient will return forthwith all written or descriptive matter of\nevery kind including but not limited to models, prototypes, notes, documents, etc. which contain such Confidential Information. Recipient agrees to\nhold each item of Confidential Information received in confidence until three (3) years after the expiration or termination of this Agreement.\n(4) “Confidential Information”, as used herein, shall mean all information, noted as “Confidential” as set forth below, which is disclosed or\notherwise provided by Company, or any representations thereof which relates to or refers to Company information, business strategy, and\ntechnology. Confidential Information shall not include such information:\na.\nwhich was in the public domain prior to any such disclosure by Company;\nb.\nwhich, after disclosure by Company, comes into the public domain through no fault of the Recipient;\nc.\nwhich is disclosed to Recipient by a third party lawfully and with a legitimate right to disclose; or\nd.\nwhich was in the legitimate possession of Recipient prior to such disclosure as evidenced by Recipient’s written records.\nRecipient will hold all Confidential Information in trust and confidence; and will not at any time, without the prior written consent of Company,\ndisclose Confidential Information to any person other than an employee of Recipient who is bound to maintain the confidentiality of such\nConfidential Information and who has an actual need to know such Confidential Information in order to advance the purposes of this Agreement and\nthe discussions pursuant hereto; and, will not use or employ any Confidential Information in connection with any business or commercial activity\nwhich is separate from or does not involve Company. Notwithstanding the definition of Company Information, and notwithstanding the public filing\nstatus of the anti-inflammatory and liposomal delivery system patents, Recipient will not discuss the anti-inflammatory and liposomal delivery\nsystem patents or their availability for acquisition with any party other than the Company for a period of 3 years from execution of this agreement.\n(5) In the event that any litigation is commenced between the Recipient and Company relative to this Agreement or the rights and duties of the\nRecipient or Company under this Agreement, the prevailing party in any such litigation shall be entitled, in addition to such relief as may be granted,\nto the actual sum expended for attorneys’ fees and court costs as determined by the court in such litigation. Should any part or provision of this\nAgreement be deemed invalid or unenforceable, it is the intention of the parties hereto that the remaining portions of the Agreement shall remain in\nfull force and effect. This Agreement shall be binding upon and inure to the benefit of the successors, heirs, assignees, agents and principals of the\nparties hereto. This Agreement shall not be modified or amended except in writing and signed by the parties hereto and specifically referring to this\nAgreement. This Agreement shall be construed under the laws of California, United States of America and any dispute arising out of this Agreement\nshall be adjudicated in a court in the State of California, United States of America.\nIN WITNESS WHEREOF, this Agreement is executed in the City of San Jose, County of Santa Clara, pursuant to the Laws of the State of California\non the date first hereinabove written.\nALCIS HEALTH, INC.\nRecipient:\n560 S. Winchester Blvd., Fifth Floor, San Jose, CA 95120\nSignature _____________________________________\nSignature ____________________________________\nName ________________________________________\nName _______________________________________\nTitle _________________________________________\nTitle ________________________________________\nDate:\n, 2006\n, 2006
80b10762496b1fbcf86f729528d30fed.pdf	effective_date jurisdiction party term	EX-10 .3 7 ndaprecision.htm\nNondisclosure Agreement\nThis agreement (“Agreement”) is entered into and effective as of 6th day of February, 2007, between\nPrecision Metal Manufacturing, Inc (a Colorado Corporation) located at 12555 West 52nd Avenue, Arvada,\nColorado 80002 and Back 2 Health, Ltd. located at 5373 North Union Bvld., Colorado Springs, Colorado\n80918 (hereinafter collectively referred to as “the Parties”).\nWHEREAS, the Parties contemplate entering into a business relationship regarding materials production: and\nWHEREAS, Back 2 Health, Ltd. needs to disclose certain information to Precision Metal Manufacturing, Inc.\nregarding the potential business relationship:\nNOW THEREFORE, in consideration of the disclosure of Proprietary Information (as defined herein) to\nPrecision Metal Manufacturing, Inc. the Parties agree as follows:\n1.\nDefinition:\n“Information” is defined as communications or data including, but not limited to, business\ninformation, marketing plans, technical or financial information, customer lists or proposals,\ntrademark filings, patent applications, sketches, models, samples, drawings, specifications, whether\nconveyed in oral, written, graphic, or electromagnetic form or otherwise.\n“Party” is defined as either entity executing this Agreement and any subsidiary, division, or parent\ncompany of such entity.\n“Proprietary Information” is defined as that information owned or possessed by Back 2 Health Ltd.\nthat Back 2 Health, Ltd. desires to protect as confidential against unrestricted disclosure or improper\ncompetitive use, and that is designated as such in the manner provided by this Agreement.\n2.\nAll information that is disclosed by Back 2 Health, Ltd. (“Disclosing Party”) to Precision Metal\nManufacturing, Inc. (“Receiving Party”) and that is to be protected hereunder by the Receiving Party\nas Proprietary Information:\n(a) in writing or other tangible form, shall be conspicuously labeled as “proprietary”, “confidential”,\nor with words of similar importance at the time of delivery; and\n(b) if oral, shall concern only topics and scope agreed in advance, in writing, and shall be identified as\n“proprietary” or “confidential” prior to disclosure, and after disclosure shall be summarized in writing\nor other tangible form promptly, but in no event later than twenty (20) business days thereafter, and\nthe summary shall be delivered to the Receiving Party consistent with Subparagraph 2(a) hereof.\n3.\nProprietary Information of the Disclosing Party shall remain the property of the Disclosing Party.\nProprietary Information of the Disclosing Party shall be treated and safeguarded hereunder by the\nReceiving Party for a period of five (5) years from the date of disclosure. The Receiving Party\nwarrants that it applies reasonable safeguards against the unauthorized disclosure of Proprietary\nInformation and that it will protect such Proprietary Information at least as securely as it protects it\nown Proprietary Information.\n4.\nThe Receiving Party agrees that (i) the documents provided to the Receiving Party hereunder\ncontaining Proprietary Information of the Disclosing Party shall be used by the Receiving Party solely\nfor the purpose of evaluating its interest in the business arrangements described or performing a future\nagreement between the parties; (ii) it will not use such documents disclosed hereunder for any other\npurpose; and (iii) it will not distribute, disclose, or disseminate Proprietary Information to anyone\nexcept its employees with a need to know who are involved in the consideration or performance of the\nbusiness arrangements described herein.\n5.\nThis Agreement shall not apply to Information that:\n(a) is in or enters the public domain, through no fault of the Receiving Party; or\n(b) is or has been disclosed by the Disclosing Party to the other Party or the third party without\nrestriction; or\n(c) is already in the possession of the Receiving Party, without restriction and prior to disclosure\nof the information hereunder; or\n(d) is or has been lawfully disclosed by a third party to the Receiving Party without an obligation\nof confidentiality; or\n(e) is developed by the Receiving Party independently of any breach of this Agreement; or\n(f) the applicable period of confidentiality pursuant to Paragraph 3 has ended.\nEach Party may disclose any Proprietary Information to the extent that such Party has been advised by\ncounsel that such disclosure is necessary to comply with the laws or regulations, provided that each\nParty shall give the other Party reasonable advance notice of such proposed disclosure, shall use its\nbest efforts to assist Disclosing Party to secure confidential treatment of any such Proprietary\nInformation and shall advise the other Party in writing of the manner of the disclosure.\n6.\nThis Agreement shall terminate five (5) years from the date first written above, or upon ten (10) days\nwritten notice by either Party except the obligations of confidentiality pursuant to Paragraph 3, and the\nterms of Paragraph 4, shall continue for the period specified in Paragraph 3.\n7.\nNeither this Agreement nor the disclosure or receipt of Information shall constitute or imply a\ncommitment by either Party with respect to present or future business arrangements or other subject\nmatter not expressly set forth herein.\n8.\nThe Receiving Party shall have, or shall enter into, agreements with its parent, divisions, subsidiary\ncompanies, and consultants that will safeguard the Proprietary Information disclosed hereunder\nconsistent with the terms of this Agreement. With respect to employees, the Receiving Party shall\nadvise all employees who will have access to Proprietary Information as to their obligations contained\nherein.\n9.\nExcept as expressly provided herein, no license or right is granted by the Disclosing Party to the\nReceiving Party under any patent, patent application, trademark, copyright, software, or trade secret.\n10.\nAny amendment to this Agreement must be in writing and signed by authorized officers of each Party.\nNo failure or delay in exercising any right under this Agreement shall operate as a waiver thereof.\n11.\nAt the Disclosing Party’s request, all Proprietary Information of the Disclosing Party in tangible form\nthat is in the possession of the Receiving Party shall be returned to the Disclosing Party or destroyed.\n12.\nEach Party agrees that it will not disclose the subject matter or terms of this Agreement or the\ndiscussions between the Parties without the written consent of the other Party.\n13.\nThis Agreement shall be governed by the laws of the State of Colorado.\n14.\nIf any provision of this Agreement shall be deemed invalid, unenforceable, or illegal, or if the period\nduring which this Agreement is to remain effective is found to exceed the legally permissible period,\nthen notwithstanding such invalidity, unenforceability, or illegality the remainder of this Agreement\nshall continue in full force and effect during the maximum period legally permissible.\n15.\nA copy of this document may be executed by each party, separately, and when each party has executed\na copy thereof, such copies taken together shall be deemed to be a full and complete agreement\nbetween the Parties. Facsimile signatures shall be deemed the equivalent of original signatures.\n16.\nIf a dispute relates to this Agreement, or its breach, and the parties have not been successful in\nresolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through\nmediation by submitting the dispute to a sole mediator selected by the parties or, at any time at the\noption of a party, to arbitration by the American Arbitration Association (“AAA”). Each party shall\nbear its own expenses and an equal share of the expenses of the mediator or arbitrator and the fees of\nthe AAA. All defenses based on passage of time shall be suspended pending the termination of the\nmediation or arbitration. Nothing in this clauses shall be construed to preclude any party from seeking\ninjunctive relief in order to protect its rights pending mediation or arbitration.\n17.\nThe Parties have read, agree to, and understand the above conditions.\nBack 2 Health, Ltd.\nPRECISION METAL MANUFACTURING, INC.\nCompany Name\n/s/John B. Quam\n/s/ Brian J. Cirbo\nCompany Representative Signature\nCompany Representative Signature\nJohn B. Quam\nBrian J. Cirbo\nPrint Company Representative Name\nPrint Company Representative Name\nPresident\nVice President\nCompany Representative Title\nCompany Representative Title\n02/06/07\n02/06/07\nDate\nDate	EX-10.3 7 ndaprecision.htm\nNondisclosure Agreement\nThis agreement (“Agreement”) is entered into and effective as of 61 day of February, 2007, between\nPrecision Metal Manufacturing, Inc (a Colorado Corporation) located at 12555 West 527 Avenue, Arvada,\nColorado 80002 and Back 2 Health, Ltd. located at 5373 North Union Bvld., Colorado Springs, Colorado\n80918 (hereinafter collectively referred to as “the Parties”).\nWHEREAS, the Parties contemplate entering into a business relationship regarding materials production: and\nWHEREAS, Back 2 Health, Ltd. needs to disclose certain information to Precision Metal Manufacturing, Inc.\nregarding the potential business relationship:\nNOW THEREFORE, in consideration of the disclosure of Proprietary Information (as defined herein) to\nPrecision Metal Manufacturing, Inc. the Parties agree as follows:\n1. Definition:\n“Information” is defined as communications or data including, but not limited to, business\ninformation, marketing plans, technical or financial information, customer lists or proposals,\ntrademark filings, patent applications, sketches, models, samples, drawings, specifications, whether\nconveyed in oral, written, graphic, or electromagnetic form or otherwise.\n“Party” is defined as either entity executing this Agreement and any subsidiary, division, or parent\ncompany of such entity.\n“Proprietary Information” is defined as that information owned or possessed by Back 2 Health Ltd.\nthat Back 2 Health, Ltd. desires to protect as confidential against unrestricted disclosure or improper\ncompetitive use, and that is designated as such in the manner provided by this Agreement.\n2. All information that is disclosed by Back 2 Health, Ltd. (“Disclosing Party”) to Precision Metal\nManufacturing, Inc. (“Receiving Party”) and that is to be protected hereunder by the Receiving Party\nas Proprietary Information:\n(a) in writing or other tangible form, shall be conspicuously labeled as “proprietary”, “confidential”,\nor with words of similar importance at the time of delivery; and\n(b) if oral, shall concern only topics and scope agreed in advance, in writing, and shall be identified as\n“proprietary” or “confidential” prior to disclosure, and after disclosure shall be summarized in writing\nor other tangible form promptly, but in no event later than twenty (20) business days thereafter, and\nthe summary shall be delivered to the Receiving Party consistent with Subparagraph 2(a) hereof.\n3. Proprietary Information of the Disclosing Party shall remain the property of the Disclosing Party.\nProprietary Information of the Disclosing Party shall be treated and safeguarded hereunder by the\nReceiving Party for a period of five (5) years from the date of disclosure. The Receiving Party\nwarrants that it applies reasonable safeguards against the unauthorized disclosure of Proprietary\nInformation and that it will protect such Proprietary Information at least as securely as it protects it\nown Proprietary Information.\n4. The Receiving Party agrees that (i) the documents provided to the Receiving Party hereunder\ncontaining Proprietary Information of the Disclosing Party shall be used by the Receiving Party solely\nfor the purpose of evaluating its interest in the business arrangements described or performing a future\n]\n10. 11. 12. agreement between the parties; (ii) it will not use such documents disclosed hereunder for any other\npurpose; and (iii) it will not distribute, disclose, or disseminate Proprietary Information to anyone\nexcept its employees with a need to know who are involved in the consideration or performance of the\nbusiness arrangements described herein.\nThis Agreement shall not apply to Information that:\n(a) isin or enters the public domain, through no fault of the Receiving Party; or\n(b) is or has been disclosed by the Disclosing Party to the other Party or the third party without\nrestriction; or\n(c) is already in the possession of the Receiving Party, without restriction and prior to disclosure\nof the information hereunder; or\n(d) is or has been lawfully disclosed by a third party to the Receiving Party without an obligation\nof confidentiality; or\n(e) is developed by the Receiving Party independently of any breach of this Agreement; or\n(f) the applicable period of confidentiality pursuant to Paragraph 3 has ended.\nEach Party may disclose any Proprietary Information to the extent that such Party has been advised by\ncounsel that such disclosure is necessary to comply with the laws or regulations, provided that each\nParty shall give the other Party reasonable advance notice of such proposed disclosure, shall use its\nbest efforts to assist Disclosing Party to secure confidential treatment of any such Proprietary\nInformation and shall advise the other Party in writing of the manner of the disclosure.\nThis Agreement shall terminate five (5) years from the date first written above, or upon ten (10) days\nwritten notice by either Party except the obligations of confidentiality pursuant to Paragraph 3, and the\nterms of Paragraph 4, shall continue for the period specified in Paragraph 3.\nNeither this Agreement nor the disclosure or receipt of Information shall constitute or imply a\ncommitment by either Party with respect to present or future business arrangements or other subject\nmatter not expressly set forth herein.\nThe Receiving Party shall have, or shall enter into, agreements with its parent, divisions, subsidiary\ncompanies, and consultants that will safeguard the Proprietary Information disclosed hereunder\nconsistent with the terms of this Agreement. With respect to employees, the Receiving Party shall\nadvise all employees who will have access to Proprietary Information as to their obligations contained\nherein.\nExcept as expressly provided herein, no license or right is granted by the Disclosing Party to the\nReceiving Party under any patent, patent application, trademark, copyright, software, or trade secret.\nAny amendment to this Agreement must be in writing and signed by authorized officers of each Party.\nNo failure or delay in exercising any right under this Agreement shall operate as a waiver thereof.\nAt the Disclosing Party’s request, all Proprietary Information of the Disclosing Party in tangible form\nthat is in the possession of the Receiving Party shall be returned to the Disclosing Party or destroyed.\nEach Party agrees that it will not disclose the subject matter or terms of this Agreement or the\ndiscussions between the Parties without the written consent of the other Party.\n]\f \n13. This Agreement shall be governed by the laws of the State of Colorado.\n14. If any provision of this Agreement shall be deemed invalid, unenforceable, or illegal, or if the period\nduring which this Agreement is to remain effective is found to exceed the legally permissible period,\nthen notwithstanding such invalidity, unenforceability, or illegality the remainder of this Agreement\nshall continue in full force and effect during the maximum period legally permissible.\n15. A copy of this document may be executed by each party, separately, and when each party has executed\na copy thereof, such copies taken together shall be deemed to be a full and complete agreement\nbetween the Parties. Facsimile signatures shall be deemed the equivalent of original signatures.\n16. If a dispute relates to this Agreement, or its breach, and the parties have not been successful in\nresolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through\nmediation by submitting the dispute to a sole mediator selected by the parties or, at any time at the\noption of a party, to arbitration by the American Arbitration Association (“AAA”). Each party shall\nbear its own expenses and an equal share of the expenses of the mediator or arbitrator and the fees of\nthe AAA. All defenses based on passage of time shall be suspended pending the termination of the\nmediation or arbitration. Nothing in this clauses shall be construed to preclude any party from seeking\ninjunctive relief in order to protect its rights pending mediation or arbitration.\n17. The Parties have read, agree to, and understand the above conditions.\nBack 2 Health, Ltd. PRECISION METAL MANUFACTURING, INC.\nCompany Name\n/s/John B. Quam /s/ Brian J. Cirbo\nCompany Representative Signature Company Representative Signature\nJohn B. Quam Brian J. Cirbo\nPrint Company Representative Name Print Company Representative Name\nPresident Vice President\nCompany Representative Title Company Representative Title\n02/06/07 02/06/07\nDate Date	EX-10.3 ndaprecision.htm\nNondisclosure Agreement\nThis agreement ("Agreement") is entered into and effective as of 6th day of February, 2007, between\nPrecision Metal Manufacturing, Inc (a Colorado Corporation) located at 12555 West 52nd Avenue, Arvada,\nColorado 80002 and Back 2 Health, Ltd. located at 5373 North Union Bvld., Colorado Springs, Colorado\n80918 (hereinafter collectively referred to as "the Parties").\nWHEREAS, the Parties contemplate entering into a business relationship regarding materials production: and\nWHEREAS, Back 2 Health, Ltd. needs to disclose certain information to Precision Metal Manufacturing, Inc.\nregarding the potential business relationship:\nNOW THEREFORE, in consideration of the disclosure of Proprietary Information (as defined herein) to\nPrecision Metal Manufacturing, Inc. the Parties agree as follows:\n1.\nDefinition:\n"Information" is defined as communications or data including, but not limited to, business\ninformation, marketing plans, technical or financial information, customer lists or proposals,\ntrademark filings, patent applications, sketches, models, samples, drawings, specifications, whether\nconveyed in oral, written, graphic, or electromagnetic form or otherwise.\n"Party" is defined as either entity executing this Agreement and any subsidiary, division, or parent\ncompany of such entity.\n"Proprietary Information" is defined as that information owned or possessed by Back 2 Health Ltd.\nthat Back 2 Health, Ltd. desires to protect as confidential against unrestricted disclosure or improper\ncompetitive use, and that is designated as such in the manner provided by this Agreement.\n2.\nAll information that is disclosed by Back 2 Health, Ltd. ("Disclosing Party") to Precision Metal\nManufacturing, Inc. ("Receiving Party") and that is to be protected hereunder by the Receiving Party\nas Proprietary Information:\n(a) in writing or other tangible form, shall be conspicuously labeled as "proprietary", "confidential",\nor with words of similar importance at the time of delivery; and\n(b) if oral, shall concern only topics and scope agreed in advance, in writing, and shall be identified as\n"proprietary" or "confidential" prior to disclosure, and after disclosure shall be summarized in writing\nor other tangible form promptly, but in no event later than twenty (20) business days thereafter, and\nthe summary shall be delivered to the Receiving Party consistent with Subparagraph 2(a) hereof.\n3.\nProprietary Information of the Disclosing Party shall remain the property of the Disclosing Party.\nProprietary Information of the Disclosing Party shall be treated and safeguarded hereunder by the\nReceiving Party for a period of five (5) years from the date of disclosure. The Receiving Party\nwarrants that it applies reasonable safeguards against the unauthorized disclosure of Proprietary\nInformation and that it will protect such Proprietary Information at least as securely as it protects it\nown Proprietary Information.\n4.\nThe Receiving Party agrees that (i) the documents provided to the Receiving Party hereunder\ncontaining Proprietary Information of the Disclosing Party shall be used by the Receiving Party solely\nfor the purpose of evaluating its interest in the business arrangements described or performing a future\nagreement between the parties; (ii) it will not use such documents disclosed hereunder for any other\npurpose; and (iii) it will not distribute, disclose, or disseminate Proprietary Information to anyone\nexcept its employees with a need to know who are involved in the consideration or performance of the\nbusiness arrangements described herein.\n5.\nThis Agreement shall not apply to Information that:\n(a) is in or enters the public domain, through no fault of the Receiving Party; or\n(b) is or has been disclosed by the Disclosing Party to the other Party or the third party without\nrestriction; or\n(c) is already in the possession of the Receiving Party, without restriction and prior to disclosure\nof the information hereunder; or\n(d) is or has been lawfully disclosed by a third party to the Receiving Party without an obligation\nof confidentiality; or\n(e) is developed by the Receiving Party independently of any breach of this Agreement; or\n(f) the applicable period of confidentiality pursuant to Paragraph 3 has ended.\nEach Party may disclose any Proprietary Information to the extent that such Party has been advised by\ncounsel that such disclosure is necessary to comply with the laws or regulations, provided that each\nParty shall give the other Party reasonable advance notice of such proposed disclosure, shall use its\nbest efforts to assist Disclosing Party to secure confidential treatment of any such Proprietary\nInformation and shall advise the other Party in writing of the manner of the disclosure.\n6.\nThis Agreement shall terminate five (5) years from the date first written above, or upon ten (10) days\nwritten notice by either Party except the obligations of confidentiality pursuant to Paragraph 3, and the\nterms of Paragraph 4, shall continue for the period specified in Paragraph 3.\n7.\nNeither this Agreement nor the disclosure or receipt of Information shall constitute or imply a\ncommitment by either Party with respect to present or future business arrangements or other subject\nmatter not expressly set forth herein.\n8.\nThe Receiving Party shall have, or shall enter into, agreements with its parent, divisions, subsidiary\ncompanies, and consultants that will safeguard the Proprietary Information disclosed hereunder\nconsistent with the terms of this Agreement. With respect to employees, the Receiving Party shall\nadvise all employees who will have access to Proprietary Information as to their obligations contained\nherein.\n9.\nExcept as expressly provided herein, no license or right is granted by the Disclosing Party to the\nReceiving Party under any patent, patent application, trademark, copyright, software, or trade secret.\n10. Any amendment to this Agreement must be in writing and signed by authorized officers of each Party.\nNo failure or delay in exercising any right under this Agreement shall operate as a waiver thereof.\n11. At the Disclosing Party's request, all Proprietary Information of the Disclosing Party in tangible form\nthat is in the possession of the Receiving Party shall be returned to the Disclosing Party or destroyed.\n12.\nEach Party agrees that it will not disclose the subject matter or terms of this Agreement or the\ndiscussions between the Parties without the written consent of the other Party.\n13.\nThis Agreement shall be governed by the laws of the State of Colorado.\n14.\nIf any provision of this Agreement shall be deemed invalid, unenforceable, or illegal, or if the period\nduring which this Agreement is to remain effective is found to exceed the legally permissible period,\nthen notwithstanding such invalidity, unenforceability, or illegality the remainder of this Agreement\nshall continue in full force and effect during the maximum period legally permissible.\n15.\nA copy of this document may be executed by each party, separately, and when each party has executed\na copy thereof, such copies taken together shall be deemed to be a full and complete agreement\nbetween the Parties. Facsimile signatures shall be deemed the equivalent of original signatures.\n16.\nIf a dispute relates to this Agreement, or its breach, and the parties have not been successful in\nresolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through\nmediation by submitting the dispute to a sole mediator selected by the parties or, at any time at the\noption of a party, to arbitration by the American Arbitration Association ("AAA"). Each party shall\nbear its own expenses and an equal share of the expenses of the mediator or arbitrator and the fees of\nthe AAA. All defenses based on passage of time shall be suspended pending the termination of the\nmediation or arbitration. Nothing in this clauses shall be construed to preclude any party from seeking\ninjunctive relief in order to protect its rights pending mediation or arbitration.\n17.\nThe Parties have read, agree to, and understand the above conditions.\nBack 2 Health, Ltd.\nPRECISION METAL MANUFACTURING, INC.\nCompany Name\n/s/John B. Quam\n/s/ Brian J. Cirbo\nCompany Representative Signature\nCompany Representative Signature\nJohn B. Quam\nBrian J. Cirbo\nPrint Company Representative Name\nPrint Company Representative Name\nPresident\nVice President\nCompany Representative Title\nCompany Representative Title\n02/06/07\n02/06/07\nDate\nDate	EX-10 .3 7 ndaprecision.htm\nNondisclosure Agreement\nThis agreement (“Agreement”) is entered into and effective as of 6th day of February, 2007, between\nPrecision Metal Manufacturing, Inc (a Colorado Corporation) located at 12555 West 52nd Avenue, Arvada,\nColorado 80002 and Back 2 Health, Ltd. located at 5373 North Union Bvld., Colorado Springs, Colorado\n80918 (hereinafter collectively referred to as “the Parties”).\nWHEREAS, the Parties contemplate entering into a business relationship regarding materials production: and\nWHEREAS, Back 2 Health, Ltd. needs to disclose certain information to Precision Metal Manufacturing, Inc.\nregarding the potential business relationship:\nNOW THEREFORE, in consideration of the disclosure of Proprietary Information (as defined herein) to\nPrecision Metal Manufacturing, Inc. the Parties agree as follows:\n1.\nDefinition:\n“Information” is defined as communications or data including, but not limited to, business\ninformation, marketing plans, technical or financial information, customer lists or proposals,\ntrademark filings, patent applications, sketches, models, samples, drawings, specifications, whether\nconveyed in oral, written, graphic, or electromagnetic form or otherwise.\n“Party” is defined as either entity executing this Agreement and any subsidiary, division, or parent\ncompany of such entity.\n“Proprietary Information” is defined as that information owned or possessed by Back 2 Health Ltd.\nthat Back 2 Health, Ltd. desires to protect as confidential against unrestricted disclosure or improper\ncompetitive use, and that is designated as such in the manner provided by this Agreement.\n2.\nAll information that is disclosed by Back 2 Health, Ltd. (“Disclosing Party”) to Precision Metal\nManufacturing, Inc. (“Receiving Party”) and that is to be protected hereunder by the Receiving Party\nas Proprietary Information:\n(a) in writing or other tangible form, shall be conspicuously labeled as “proprietary”, “confidential”,\nor with words of similar importance at the time of delivery; and\n(b) if oral, shall concern only topics and scope agreed in advance, in writing, and shall be identified as\n“proprietary” or “confidential” prior to disclosure, and after disclosure shall be summarized in writing\nor other tangible form promptly, but in no event later than twenty (20) business days thereafter, and\nthe summary shall be delivered to the Receiving Party consistent with Subparagraph 2(a) hereof.\n3.\nProprietary Information of the Disclosing Party shall remain the property of the Disclosing Party.\nProprietary Information of the Disclosing Party shall be treated and safeguarded hereunder by the\nReceiving Party for a period of five (5) years from the date of disclosure. The Receiving Party\nwarrants that it applies reasonable safeguards against the unauthorized disclosure of Proprietary\nInformation and that it will protect such Proprietary Information at least as securely as it protects it\nown Proprietary Information.\n4.\nThe Receiving Party agrees that (i) the documents provided to the Receiving Party hereunder\ncontaining Proprietary Information of the Disclosing Party shall be used by the Receiving Party solely\nfor the purpose of evaluating its interest in the business arrangements described or performing a future\nagreement between the parties; (ii) it will not use such documents disclosed hereunder for any other\npurpose; and (iii) it will not distribute, disclose, or disseminate Proprietary Information to anyone\nexcept its employees with a need to know who are involved in the consideration or performance of the\nbusiness arrangements described herein.\n5.\nThis Agreement shall not apply to Information that:\n(a) is in or enters the public domain, through no fault of the Receiving Party; or\n(b) is or has been disclosed by the Disclosing Party to the other Party or the third party without\nrestriction; or\n(c) is already in the possession of the Receiving Party, without restriction and prior to disclosure\nof the information hereunder; or\n(d) is or has been lawfully disclosed by a third party to the Receiving Party without an obligation\nof confidentiality; or\n(e) is developed by the Receiving Party independently of any breach of this Agreement; or\n(f) the applicable period of confidentiality pursuant to Paragraph 3 has ended.\nEach Party may disclose any Proprietary Information to the extent that such Party has been advised by\ncounsel that such disclosure is necessary to comply with the laws or regulations, provided that each\nParty shall give the other Party reasonable advance notice of such proposed disclosure, shall use its\nbest efforts to assist Disclosing Party to secure confidential treatment of any such Proprietary\nInformation and shall advise the other Party in writing of the manner of the disclosure.\n6.\nThis Agreement shall terminate five (5) years from the date first written above, or upon ten (10) days\nwritten notice by either Party except the obligations of confidentiality pursuant to Paragraph 3, and the\nterms of Paragraph 4, shall continue for the period specified in Paragraph 3.\n7.\nNeither this Agreement nor the disclosure or receipt of Information shall constitute or imply a\ncommitment by either Party with respect to present or future business arrangements or other subject\nmatter not expressly set forth herein.\n8.\nThe Receiving Party shall have, or shall enter into, agreements with its parent, divisions, subsidiary\ncompanies, and consultants that will safeguard the Proprietary Information disclosed hereunder\nconsistent with the terms of this Agreement. With respect to employees, the Receiving Party shall\nadvise all employees who will have access to Proprietary Information as to their obligations contained\nherein.\n9.\nExcept as expressly provided herein, no license or right is granted by the Disclosing Party to the\nReceiving Party under any patent, patent application, trademark, copyright, software, or trade secret.\n10.\nAny amendment to this Agreement must be in writing and signed by authorized officers of each Party.\nNo failure or delay in exercising any right under this Agreement shall operate as a waiver thereof.\n11.\nAt the Disclosing Party’s request, all Proprietary Information of the Disclosing Party in tangible form\nthat is in the possession of the Receiving Party shall be returned to the Disclosing Party or destroyed.\n12.\nEach Party agrees that it will not disclose the subject matter or terms of this Agreement or the\ndiscussions between the Parties without the written consent of the other Party.\n13.\nThis Agreement shall be governed by the laws of the State of Colorado.\n14.\nIf any provision of this Agreement shall be deemed invalid, unenforceable, or illegal, or if the period\nduring which this Agreement is to remain effective is found to exceed the legally permissible period,\nthen notwithstanding such invalidity, unenforceability, or illegality the remainder of this Agreement\nshall continue in full force and effect during the maximum period legally permissible.\n15.\nA copy of this document may be executed by each party, separately, and when each party has executed\na copy thereof, such copies taken together shall be deemed to be a full and complete agreement\nbetween the Parties. Facsimile signatures shall be deemed the equivalent of original signatures.\n16.\nIf a dispute relates to this Agreement, or its breach, and the parties have not been successful in\nresolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through\nmediation by submitting the dispute to a sole mediator selected by the parties or, at any time at the\noption of a party, to arbitration by the American Arbitration Association (“AAA”). Each party shall\nbear its own expenses and an equal share of the expenses of the mediator or arbitrator and the fees of\nthe AAA. All defenses based on passage of time shall be suspended pending the termination of the\nmediation or arbitration. Nothing in this clauses shall be construed to preclude any party from seeking\ninjunctive relief in order to protect its rights pending mediation or arbitration.\n17.\nThe Parties have read, agree to, and understand the above conditions.\nBack 2 Health, Ltd.\nPRECISION METAL MANUFACTURING, INC.\nCompany Name\n/s/John B. Quam\n/s/ Brian J. Cirbo\nCompany Representative Signature\nCompany Representative Signature\nJohn B. Quam\nBrian J. Cirbo\nPrint Company Representative Name\nPrint Company Representative Name\nPresident\nVice President\nCompany Representative Title\nCompany Representative Title\n02/06/07\n02/06/07\nDate\nDate
80e3a1f3abe306d4feb3b134c707bd07.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\nOctober 12, 2005\nKoch Industries, Inc.\n4111 E. 37\nth Street North\nWichita, Kansas 67220\nAttention: Steve Feilmeier\nRe: Confidentiality Agreement\nDear Steve:\nKoch Industries, Inc. (“Koch” or “you”) now or in the future will be reviewing certain information provided to it by Georgia-Pacific\nCorporation (“GP”) or its affiliates (“Provider”) to assist Koch in evaluating making a possible purchase of certain stock or assets of GP (the\n“Project”). In order that Koch may determine the extent of its interest, certain oral and written information regarding the Project will be provided to\nKoch which is proprietary and confidential information of Provider.\nAs used herein, the term “Person” includes, without limitation, any corporation, company, entity, trust, group, partnership, or individual. The\nterm “Representative” means any Person acting on behalf of Provider or Koch, as the case may be, including without limitation, Koch’s (or\nProvider’s, as the case may be) directors, officers, partners, employees, agents, representatives, financial advisors, attorneys, accountants, and\nconsultants. The term “Information” means any and all oral and written information, including information in documentary, handwritten, electronic\nform, or any other form, that is (i) furnished by Provider to you or any of your Representatives in connection with your evaluation of the Project or\nfurnished to us in regard to the purchase by Koch from Provider of the two pulp and paper mills in May 2004, or (ii) prepared by you or your\nRepresentatives and containing, in whole or in part based on, any information described in clause (i) above.\nIn consideration of your being furnished with the Information by Provider, you agree that:\n1. Subject to Paragraph 6 below, the Information will be kept confidential and will not, without the prior written consent of Provider, be\ndisclosed by you or your Representatives, in whole or in part. Moreover, you agree to disclose to your Representatives that you are evaluating the\nProject and to transmit Information to your Representatives, in both cases, only if and to the extent that such Representatives need to know the\nInformation for the purpose of evaluating the Project and are informed by you of\nthe confidential nature of the Information and agree (in writing in the case of third party Representatives) to be bound by the terms of this\nAgreement.\n2. Except as otherwise permitted herein, without the prior written consent of Provider, you and your Representatives will not disclose to any\nother Person your participation in evaluating the Project, including that Information has been made available or the status of such process, except as\nrequired by law, regulation or legal process and then only with prior written notice to Provider.\n3. If no transaction is consummated between us regarding the Project, upon our request, you will either destroy the Information (including\nall copies thereof) or, at your option, return the Information immediately to Provider, without retaining any copies or extracts thereof; provided.\n4. The term “Information” does not include information which (i) is or becomes available to the public other than as a result of a disclosure\nby you or anyone to whom you or any of your Representatives transmit any information, (ii) is or becomes known or available to you on a basis not\nin contravention of applicable law from a source (other than Provider or one of its Representatives) which you reasonably believe is not prohibited\nfrom transmitting such information to you by any contractual, legal or fiduciary obligation to Provider, (iii) was in your possession prior to the time\nit was acquired hereunder, or (iv) was developed by or for you without reference to the Information.\n5. You (i) acknowledge that neither Provider nor any of its Representatives makes any representation or warranty (express or implied) as to\nthe accuracy or completeness of the Information and (ii) agree, to the full extent permitted by law, that neither Provider nor any of its\nRepresentatives shall have any liability whatsoever to you or to any of your Representatives on any basis (including, without limitation, in contract,\ntort, under federal or state securities laws, or otherwise) as a result of your participation in the evaluation of the Project and the use of the\nInformation by you or your Representatives. This Agreement sets forth all of your obligations with respect to Information except as may be\notherwise provided in a subsequent written agreement between you and us. You agree that only those representations or warranties which are made\nin a final definitive agreement regarding the Project, when, as and if executed and delivered by the parties, and subject to such limitations and\nrestrictions as may be specified therein, shall have any legal effect.\n6. Should any person seek to legally compel you or anyone to whom you transmit the Information pursuant to this Agreement (by oral\nquestions, interrogatories, requests for Information or documents, subpoena, civil investigative demands or otherwise) to disclose any of the\nInformation, you will provide (if not otherwise\n2\nprohibited from doing so) Provider with prompt written notice so that Provider may seek, at Provider’s expense, a protective order or other\nappropriate remedy (including by participating in any proceeding to which Koch is a party, which at Provider’s request you will use all reasonable\nefforts to permit Provider to do) and/or waive compliance with the provisions of this Agreement. You agree to provide reasonable cooperation to\nProvider, including making available witnesses to the extent they are under your control, in connection with its efforts pursuant to this paragraph. If,\nafter complying with the preceding sentence, you are legally compelled to disclose any such Information, you may furnish that portion (but only that\nportion) of the Information which is legally required.\n7. It is understood and agreed that no failure or delay by Provider or you in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege\nhereunder.\n8. This Agreement shall inure to the benefit of and be binding upon Provider and you and your respective successors and assigns, including\nany successor to Provider or you or to substantially all of its or your assets or business, by merger, consolidation, purchase of assets, purchase of\nstock or otherwise.\n9. You agree that Provider may be irreparably injured by a breach of this Agreement by you or your Representatives and that Provider would\nbe entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this\nAgreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by you or your Representatives, but shall\nbe in addition to all other remedies available at law or equity.\n10. You agree that unless and until a final definitive agreement providing for a transaction has been executed and delivered by the Provider\nand you, none of the Provider, any of its shareholders, nor you is or will be under any legal obligation of any kind whatsoever with respect to such a\ntransaction by virtue of any written or oral expression with respect to such a transaction by the Provider or any of its Representatives, by you or any\nof your Representatives or by virtue of this Agreement except for the matters specifically agreed to herein. You agree that until a final definitive\nagreement providing for a Transaction has been executed and delivered by the Provider and you, no document (including this Agreement and the\nInformation) or other information or materials shall constitute an offer to sell securities of the Provider.\n11. You agree that the Information is and shall be and remain the property of the Provider or its subsidiaries, as applicable, and that the\nProvider has not, and its affiliate and subsidiaries have not, granted and will not grant you any license, copyright or similar\n3\nright with respect to any of the Information or any other material made available to you by or on behalf of the Provider or its subsidiaries.\n12. Your obligations hereunder shall terminate two (2) years from the date of this Agreement.\n13. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made\nand to be performed within such State and Provider and Koch hereby submit to the jurisdiction of the courts of such State.\n14. Unless otherwise agreed in writing, all communications from you or your Representatives regarding the Project or this Agreement,\nincluding without limitation requests for additional information, will be directed exclusively to any one of: A.D. Correll, Lee Thomas, Danny Huff,\nTyler Woolson, Jim Kelley or Ken Khoury.\nVery truly yours,\nGeorgia-Pacific Corporation\nBy:\n/s/ Danny W. Huff\nPrint Name: Danny W. Huff\nTitle:\nChief Financial Officer\nACKNOWLEDGED AND AGREED\nKoch Industries, Inc.\nBy:\n/s/ Steven J. Feilmeier\nPrint Name: Steven J. Feilmeier\nTitle\nChief Financial Officer\n4	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit ()(2)\nOctober 12, 2005\nKoch Industries, Inc.\n4111 E. 37% Street North\nWichita, Kansas 67220\nAttention: Steve Feilmeier\nRe: Confidentiality Agreement\nDear Steve:\nKoch Industries, Inc. (“Koch” or “you”) now or in the future will be reviewing certain information provided to it by Georgia-Pacific\nCorporation (“GP”) or its affiliates (“Provider”) to assist Koch in evaluating making a possible purchase of certain stock or assets of GP (the\n“Project”). In order that Koch may determine the extent of its interest, certain oral and written information regarding the Project will be provided to\nKoch which is proprietary and confidential information of Provider.\nAs used herein, the term “Person” includes, without limitation, any corporation, company, entity, trust, group, partnership, or individual. The\nterm “Representative” means any Person acting on behalf of Provider or Koch, as the case may be, including without limitation, Koch’s (or\nProvider’s, as the case may be) directors, officers, partners, employees, agents, representatives, financial advisors, attorneys, accountants, and\nconsultants. The term “Information” means any and all oral and written information, including information in documentary, handwritten, electronic\nform, or any other form, that is (i) furnished by Provider to you or any of your Representatives in connection with your evaluation of the Project or\nfurnished to us in regard to the purchase by Koch from Provider of the two pulp and paper mills in May 2004, or (ii) prepared by you or your\nRepresentatives and containing, in whole or in part based on, any information described in clause (i) above.\nIn consideration of your being furnished with the Information by Provider, you agree that:\n1. Subject to Paragraph 6 below, the Information will be kept confidential and will not, without the prior written consent of Provider, be\ndisclosed by you or your Representatives, in whole or in part. Moreover, you agree to disclose to your Representatives that you are evaluating the\nProject and to transmit Information to your Representatives, in both cases, only if and to the extent that such Representatives need to know the\nInformation for the purpose of evaluating the Project and are informed by you of\nthe confidential nature of the Information and agree (in writing in the case of third party Representatives) to be bound by the terms of this\nAgreement.\n2. Except as otherwise permitted herein, without the prior written consent of Provider, you and your Representatives will not disclose to any\nother Person your participation in evaluating the Project, including that Information has been made available or the status of such process, except as\nrequired by law, regulation or legal process and then only with prior written notice to Provider.\n3. If no transaction is consummated between us regarding the Project, upon our request, you will either destroy the Information (including\nall copies thereof) or, at your option, return the Information immediately to Provider, without retaining any copies or extracts thereof; provided.\n4. The term “Information” does not include information which (i) is or becomes available to the public other than as a result of a disclosure\nby you or anyone to whom you or any of your Representatives transmit any information, (ii) is or becomes known or available to you on a basis not\nin contravention of applicable law from a source (other than Provider or one of its Representatives) which you reasonably believe is not prohibited\nfrom transmitting such information to you by any contractual, legal or fiduciary obligation to Provider, (iii) was in your possession prior to the time\nit was acquired hereunder, or (iv) was developed by or for you without reference to the Information.\n5. You (i) acknowledge that neither Provider nor any of its Representatives makes any representation or warranty (express or implied) as to\nthe accuracy or completeness of the Information and (ii) agree, to the full extent permitted by law, that neither Provider nor any of its\nRepresentatives shall have any liability whatsoever to you or to any of your Representatives on any basis (including, without limitation, in contract,\ntort, under federal or state securities laws, or otherwise) as a result of your participation in the evaluation of the Project and the use of the\nInformation by you or your Representatives. This Agreement sets forth all of your obligations with respect to Information except as may be\notherwise provided in a subsequent written agreement between you and us. You agree that only those representations or warranties which are made\nin a final definitive agreement regarding the Project, when, as and if executed and delivered by the parties, and subject to such limitations and\nrestrictions as may be specified therein, shall have any legal effect.\n6. Should any person seek to legally compel you or anyone to whom you transmit the Information pursuant to this Agreement (by oral\nquestions, interrogatories, requests for Information or documents, subpoena, civil investigative demands or otherwise) to disclose any of the\nInformation, you will provide (if not otherwise\nprohibited from doing so) Provider with prompt written notice so that Provider may seek, at Provider’s expense, a protective order or other\nappropriate remedy (including by participating in any proceeding to which Koch is a party, which at Provider’s request you will use all reasonable\nefforts to permit Provider to do) and/or waive compliance with the provisions of this Agreement. You agree to provide reasonable cooperation to\nProvider, including making available witnesses to the extent they are under your control, in connection with its efforts pursuant to this paragraph. If,\nafter complying with the preceding sentence, you are legally compelled to disclose any such Information, you may furnish that portion (but only that\nportion) of the Information which is legally required.\n7. Itis understood and agreed that no failure or delay by Provider or you in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege\nhereunder.\n8. This Agreement shall inure to the benefit of and be binding upon Provider and you and your respective successors and assigns, including\nany successor to Provider or you or to substantially all of its or your assets or business, by merger, consolidation, purchase of assets, purchase of\nstock or otherwise.\n9. You agree that Provider may be irreparably injured by a breach of this Agreement by you or your Representatives and that Provider would\nbe entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this\nAgreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by you or your Representatives, but shall\nbe in addition to all other remedies available at law or equity.\n10.  You agree that unless and until a final definitive agreement providing for a transaction has been executed and delivered by the Provider\nand you, none of the Provider, any of its shareholders, nor you is or will be under any legal obligation of any kind whatsoever with respect to such a\ntransaction by virtue of any written or oral expression with respect to such a transaction by the Provider or any of its Representatives, by you or any\nof your Representatives or by virtue of this Agreement except for the matters specifically agreed to herein. You agree that until a final definitive\nagreement providing for a Transaction has been executed and delivered by the Provider and you, no document (including this Agreement and the\nInformation) or other information or materials shall constitute an offer to sell securities of the Provider.\n11.  You agree that the Information is and shall be and remain the property of the Provider or its subsidiaries, as applicable, and that the\nProvider has not, and its affiliate and subsidiaries have not, granted and will not grant you any license, copyright or similar\n3\nright with respect to any of the Information or any other material made available to you by or on behalf of the Provider or its subsidiaries.\n12.  Your obligations hereunder shall terminate two (2) years from the date of this Agreement.\n13.  This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made\nand to be performed within such State and Provider and Koch hereby submit to the jurisdiction of the courts of such State.\n14.  Unless otherwise agreed in writing, all communications from you or your Representatives regarding the Project or this Agreement,\nincluding without limitation requests for additional information, will be directed exclusively to any one of: A.D. Correll, Lee Thomas, Danny Huff,\nTyler Woolson, Jim Kelley or Ken Khoury.\nVery truly yours,\nGeorgia-Pacific Corporation\nBy: /s/ Danny W. Huff\nPrint Name: Danny W. Huff\nTitle: Chief Financial Officer\nACKNOWLEDGED AND AGREED\nKoch Industries, Inc.\nBy: /s/ Steven J. Feilmeier\nPrint Name: Steven J. Feilmeier\nTitle Chief Financial Officer	X-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\nOctober 12, 2005\nKoch Industries, Inc.\n4111 E. 37th Street North\nWichita, Kansas 67220\nAttention: Steve Feilmeier\nRe: Confidentiality Agreement\nDear Steve:\nKoch Industries, Inc. ("Koch" or "you") now or in the future will be reviewing certain information provided to it by Georgia-Pacific\nCorporation ("GP") or its affiliates ("Provider") to assist Koch in evaluating making a possible purchase of certain stock or assets of GP (the\n"Project"). In order that Koch may determine the extent of its interest, certain oral and written information regarding the Project will be provided\nto\nKoch which is proprietary and confidential information of Provider.\nAs used herein, the term "Person" includes, without limitation, any corporation, company, entity, trust, group, partnership, or individual. The\nterm "Representative" means any Person acting on behalf of Provider or Koch, as the case may be, including without limitation, Koch's (or\nProvider's, as the case may be) directors, officers, partners, employees, agents, representatives, financial advisors, attorneys, accountants, and\nconsultants. The term "Information" means any and all oral and written information, including information in documentary, handwritten, electronic\nform, or any other form, that is (i) furnished by Provider to you or any of your Representatives in connection with your evaluation of the Project or\nfurnished to us in regard to the purchase by Koch from Provider of the two pulp and paper mills in May 2004, or (ii) prepared by you or your\nRepresentatives and containing, in whole or in part based on, any information described in clause (i) above.\nIn consideration of your being furnished with the Information by Provider, you agree that:\n1.\nSubject to Paragraph 6 below, the Information will be kept confidential and will not, without the prior written consent of Provider, be\ndisclosed by you or your Representatives, in whole or in part. Moreover, you agree to disclose to your Representatives that you are evaluating the\nProject and to transmit Information to your Representatives, in both cases, only if and to the extent that such Representatives need to know the\nInformation for the purpose of evaluating the Project and are informed by you of\nthe confidential nature of the Information and agree (in writing in the case of third party Representatives) to be bound by the terms of this\nAgreement.\n2. Except as otherwise permitted herein, without the prior written consent of Provider, you and your Representatives will not disclose to\nany\nother Person your participation in evaluating the Project, including that Information has been made available or the status of such process, except\nas\nrequired by law, regulation or legal process and then only with prior written notice to Provider.\n3. If no transaction is consummated between us regarding the Project, upon our request, you will either destroy the Information (including\nall copies thereof) or, at your option, return the Information immediately to Provider, without retaining any copies or extracts thereof; provided.\n4.\nThe term "Information" does not include information which (i) is or becomes available to the public other than as a result of a disclosure\nby you or anyone to whom you or any of your Representatives transmit any information, (ii) is or becomes known or available to you on a basis not\nin\ncontravention of applicable law from a source (other than Provider or one of its Representatives) which you reasonably believe is not prohibited\nfrom transmitting such information to you by any contractual, legal or fiduciary obligation to Provider, (iii) was in your possession prior to the time\nit was acquired hereunder, or (iv) was developed by or for you without reference to the Information.\n5.\nYou (i) acknowledge that neither Provider nor any of its Representatives makes any representation or warranty (express or implied) as to\nthe accuracy or completeness of the Information and (ii) agree, to the full extent permitted by law, that neither Provider nor any of its\nRepresentatives shall have any liability whatsoever to you or to any of your Representatives on any basis (including, without limitation, in contract,\ntort, under federal or state securities laws, or otherwise) as a result of your participation in the evaluation of the Project and the use of the\nInformation by you or your Representatives. This Agreement sets forth all of your obligations with respect to Information except as may be\notherwise provided in a subsequent written agreement between you and us. You agree that only those representations or warranties which are made\nin a final definitive agreement regarding the Project, when, as and if executed and delivered by the parties, and subject to such limitations and\nrestrictions as may be specified therein, shall have any legal effect.\n6.\nShould any person seek to legally compel you or anyone to whom you transmit the Information pursuant to this Agreement (by oral\nquestions, interrogatories, requests for Information or documents, subpoena, civil investigative demands or otherwise) to disclose any of the\nInformation, you will provide (if not otherwise\n2\nprohibited from doing so) Provider with prompt written notice so that Provider may seek, at Provider's expense, a protective order or other\nappropriate remedy (including by participating in any proceeding to which Koch is a party, which at Provider's request you will use all reasonable\nefforts to permit Provider to do) and/or waive compliance with the provisions of this Agreement. You agree to provide reasonable cooperation to\nProvider, including making available witnesses to the extent they are under your control, in connection with its efforts pursuant to this paragraph. If,\nafter complying with the preceding sentence, you are legally compelled to disclose any such Information, you may furnish that portion (but only that\nportion) of the Information which is legally required.\n7. It is understood and agreed that no failure or delay by Provider or you in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege\nhereunder.\n8. This Agreement shall inure to the benefit of and be binding upon Provider and you and your respective successors and assigns, including\nany successor to Provider or you or to substantially all of its or your assets or business, by merger, consolidation, purchase of assets, purchase of\nstock or otherwise.\n9.\nYou agree that Provider may be irreparably injured by a breach of this Agreement by you or your Representatives and that Provider would\nbe entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this\nAgreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by you or your Representatives, but shall\nbe in addition to all other remedies available at law or equity.\n10. You agree that unless and until a final definitive agreement providing for a transaction has been executed and delivered by the Provider\nand you, none of the Provider, any of its shareholders, nor you is or will be under any legal obligation of any kind whatsoever with respect to such a\ntransaction by virtue of any written or oral expression with respect to such a transaction by the Provider or any of its Representatives, by you or any\nof\nyour\nRepresentatives or by virtue of this Agreement except for the matters specifically agreed to herein. You agree that until a final definitive\nagreement providing for a Transaction has been executed and delivered by the Provider and you, no document (including this Agreement and the\nInformation) or other information or materials shall constitute an offer to sell securities of the Provider.\n11.\nYou agree that the Information is and shall be and remain the property of the Provider or its subsidiaries, as applicable, and that\nthe\nProvider has not, and its affiliate and subsidiaries have not, granted and will not grant you any license, copyright or similar\n3\nright with respect to any of the Information or any other material made available to you by or on behalf of the Provider or its subsidiaries.\n12. Your obligations hereunder shall terminate two (2) years from the date of this Agreement.\n13.\nThis Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made\nand to be performed within such State and Provider and Koch hereby submit to the jurisdiction of the courts of such State.\n14. Unless otherwise agreed in writing, all communications from you or your Representatives regarding the Project or this Agreement,\nincluding without limitation requests for additional information, will be directed exclusively to any one of: A.D. Correll, Lee Thomas, Danny Huff,\nTyler Woolson, Jim Kelley or Ken Khoury.\nVery truly yours,\nGeorgia-Pacific Corporation\nBy:\n/s/ Danny W. Huff\nPrint Name:\nDanny W. Huff\nTitle:\nChief Financial Officer\nACKNOWLEDGED AND AGREED\nKoch Industries, Inc.\nBy:\n/s/ Steven J. Feilmeier\nPrint Name:\nSteven J. Feilmeier\nTitle\nChief Financial Officer\n4	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\nOctober 12, 2005\nKoch Industries, Inc.\n4111 E. 37\nth Street North\nWichita, Kansas 67220\nAttention: Steve Feilmeier\nRe: Confidentiality Agreement\nDear Steve:\nKoch Industries, Inc. (“Koch” or “you”) now or in the future will be reviewing certain information provided to it by Georgia-Pacific\nCorporation (“GP”) or its affiliates (“Provider”) to assist Koch in evaluating making a possible purchase of certain stock or assets of GP (the\n“Project”). In order that Koch may determine the extent of its interest, certain oral and written information regarding the Project will be provided to\nKoch which is proprietary and confidential information of Provider.\nAs used herein, the term “Person” includes, without limitation, any corporation, company, entity, trust, group, partnership, or individual. The\nterm “Representative” means any Person acting on behalf of Provider or Koch, as the case may be, including without limitation, Koch’s (or\nProvider’s, as the case may be) directors, officers, partners, employees, agents, representatives, financial advisors, attorneys, accountants, and\nconsultants. The term “Information” means any and all oral and written information, including information in documentary, handwritten, electronic\nform, or any other form, that is (i) furnished by Provider to you or any of your Representatives in connection with your evaluation of the Project or\nfurnished to us in regard to the purchase by Koch from Provider of the two pulp and paper mills in May 2004, or (ii) prepared by you or your\nRepresentatives and containing, in whole or in part based on, any information described in clause (i) above.\nIn consideration of your being furnished with the Information by Provider, you agree that:\n1. Subject to Paragraph 6 below, the Information will be kept confidential and will not, without the prior written consent of Provider, be\ndisclosed by you or your Representatives, in whole or in part. Moreover, you agree to disclose to your Representatives that you are evaluating the\nProject and to transmit Information to your Representatives, in both cases, only if and to the extent that such Representatives need to know the\nInformation for the purpose of evaluating the Project and are informed by you of\nthe confidential nature of the Information and agree (in writing in the case of third party Representatives) to be bound by the terms of this\nAgreement.\n2. Except as otherwise permitted herein, without the prior written consent of Provider, you and your Representatives will not disclose to any\nother Person your participation in evaluating the Project, including that Information has been made available or the status of such process, except as\nrequired by law, regulation or legal process and then only with prior written notice to Provider.\n3. If no transaction is consummated between us regarding the Project, upon our request, you will either destroy the Information (including\nall copies thereof) or, at your option, return the Information immediately to Provider, without retaining any copies or extracts thereof; provided.\n4. The term “Information” does not include information which (i) is or becomes available to the public other than as a result of a disclosure\nby you or anyone to whom you or any of your Representatives transmit any information, (ii) is or becomes known or available to you on a basis not\nin contravention of applicable law from a source (other than Provider or one of its Representatives) which you reasonably believe is not prohibited\nfrom transmitting such information to you by any contractual, legal or fiduciary obligation to Provider, (iii) was in your possession prior to the time\nit was acquired hereunder, or (iv) was developed by or for you without reference to the Information.\n5. You (i) acknowledge that neither Provider nor any of its Representatives makes any representation or warranty (express or implied) as to\nthe accuracy or completeness of the Information and (ii) agree, to the full extent permitted by law, that neither Provider nor any of its\nRepresentatives shall have any liability whatsoever to you or to any of your Representatives on any basis (including, without limitation, in contract,\ntort, under federal or state securities laws, or otherwise) as a result of your participation in the evaluation of the Project and the use of the\nInformation by you or your Representatives. This Agreement sets forth all of your obligations with respect to Information except as may be\notherwise provided in a subsequent written agreement between you and us. You agree that only those representations or warranties which are made\nin a final definitive agreement regarding the Project, when, as and if executed and delivered by the parties, and subject to such limitations and\nrestrictions as may be specified therein, shall have any legal effect.\n6. Should any person seek to legally compel you or anyone to whom you transmit the Information pursuant to this Agreement (by oral\nquestions, interrogatories, requests for Information or documents, subpoena, civil investigative demands or otherwise) to disclose any of the\nInformation, you will provide (if not otherwise\n2\nprohibited from doing so) Provider with prompt written notice so that Provider may seek, at Provider’s expense, a protective order or other\nappropriate remedy (including by participating in any proceeding to which Koch is a party, which at Provider’s request you will use all reasonable\nefforts to permit Provider to do) and/or waive compliance with the provisions of this Agreement. You agree to provide reasonable cooperation to\nProvider, including making available witnesses to the extent they are under your control, in connection with its efforts pursuant to this paragraph. If,\nafter complying with the preceding sentence, you are legally compelled to disclose any such Information, you may furnish that portion (but only that\nportion) of the Information which is legally required.\n7. It is understood and agreed that no failure or delay by Provider or you in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege\nhereunder.\n8. This Agreement shall inure to the benefit of and be binding upon Provider and you and your respective successors and assigns, including\nany successor to Provider or you or to substantially all of its or your assets or business, by merger, consolidation, purchase of assets, purchase of\nstock or otherwise.\n9. You agree that Provider may be irreparably injured by a breach of this Agreement by you or your Representatives and that Provider would\nbe entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this\nAgreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by you or your Representatives, but shall\nbe in addition to all other remedies available at law or equity.\n10. You agree that unless and until a final definitive agreement providing for a transaction has been executed and delivered by the Provider\nand you, none of the Provider, any of its shareholders, nor you is or will be under any legal obligation of any kind whatsoever with respect to such a\ntransaction by virtue of any written or oral expression with respect to such a transaction by the Provider or any of its Representatives, by you or any\nof your Representatives or by virtue of this Agreement except for the matters specifically agreed to herein. You agree that until a final definitive\nagreement providing for a Transaction has been executed and delivered by the Provider and you, no document (including this Agreement and the\nInformation) or other information or materials shall constitute an offer to sell securities of the Provider.\n11. You agree that the Information is and shall be and remain the property of the Provider or its subsidiaries, as applicable, and that the\nProvider has not, and its affiliate and subsidiaries have not, granted and will not grant you any license, copyright or similar\n3\nright with respect to any of the Information or any other material made available to you by or on behalf of the Provider or its subsidiaries.\n12. Your obligations hereunder shall terminate two (2) years from the date of this Agreement.\n13. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made\nand to be performed within such State and Provider and Koch hereby submit to the jurisdiction of the courts of such State.\n14. Unless otherwise agreed in writing, all communications from you or your Representatives regarding the Project or this Agreement,\nincluding without limitation requests for additional information, will be directed exclusively to any one of: A.D. Correll, Lee Thomas, Danny Huff,\nTyler Woolson, Jim Kelley or Ken Khoury.\nVery truly yours,\nGeorgia-Pacific Corporation\nBy:\n/s/ Danny W. Huff\nPrint Name: Danny W. Huff\nTitle:\nChief Financial Officer\nACKNOWLEDGED AND AGREED\nKoch Industries, Inc.\nBy:\n/s/ Steven J. Feilmeier\nPrint Name: Steven J. Feilmeier\nTitle\nChief Financial Officer\n4
825e7621085e6b7b0cfd23dc5d16a9b8.pdf	effective_date jurisdiction party term	EX-4 2 dex4.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 4\n[AIR TRANSPORT SERVICES GROUP LETTERHEAD]\nFebruary 2, 2009\nJ. Christopher Teets\nPartner\nRed Mountain Capital Partners LLC\n10100 Santa Monica Boulevard, Suite 925\nLos Angeles, CA 90067\nRe: Confidentiality and Standstill Agreement\nDear Mr. Teets:\nAs you know, that certain letter agreement by and between Red Mountain Capital Partners LLC, a Delaware limited liability company\n(“Red Mountain”) and Air Transport Services Group, Inc., a Delaware corporation (formerly ABX Holdings, Inc., “ATSG”), dated February 6, 2008,\nterminated automatically pursuant to its terms on December 31, 2008. In response to Red Mountain’s renewed request, ATSG has agreed to and\nexpects to deliver to Red Mountain, following the execution and delivery of this letter agreement by Red Mountain, certain information about its\nproperties, employees, finances, businesses and operations (including monthly financial information and all information and materials provided or\nmade available to the full board of directors of ATSG (the “Board of Directors”) or otherwise to a majority of the members of the Board of\nDirectors) that is currently available or becomes available during the duration of this letter agreement; provided, however, that nothing in this letter\nagreement obligates ATSG to disclose any information if such disclosure would be unlawful or result in a breach by ATSG or one of its subsidiaries\nof a confidentiality agreement with a third party.\nAll information about ATSG or any third party that is furnished by ATSG or its Representatives (as defined below) to Red Mountain on\nor after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter agreement as “Proprietary Information.”\nProprietary Information shall not include, however, information which (i) is or becomes generally available to the public other than as a result of a\ndisclosure by Red Mountain, the Affiliates (as defined below) or any of their respective Representatives in violation of this letter agreement; (ii) was\navailable to Red Mountain on a nonconfidential basis prior to its disclosure by ATSG or its Representatives; (iii) becomes available to Red Mountain\non a nonconfidential basis from a person other than ATSG or its Representatives who is not otherwise bound by a confidentiality agreement with\nATSG or any or its Representatives, or is otherwise not under an obligation to ATSG or any of its Representatives not to transmit the information to\nRed Mountain; or (iv) was independently developed by Red Mountain without reference to or use of the Proprietary Information. For purposes of\nthis letter agreement, (i) “Affiliates” shall mean, collectively, Red Mountain Capital Partners II, L.P., a Delaware limited partnership, Red Mountain\nCapital Partners III, L.P., a Delaware limited partnership, RMCP GP LLC, a Delaware limited liability company, Red Mountain Capital\nManagement, Inc., a Delaware corporation, and Willem Mesdag, a natural person; (ii) “Representative” shall mean, as to any person, its directors,\nofficers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants); and (iii) “person” shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by ATSG, Red Mountain shall, (i) except as\nrequired by law, keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person (other than to its\nAffiliates, Representatives and Representatives of the Affiliates who have a need to know such information for purposes of assisting in Red\nMountain’s evaluation of ATSG, provided that each such Affiliate and Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with Red Mountain’s confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) not use Proprietary Information for any purpose other than in connection with the evaluation of ATSG; and (iii) except as required\nby law or legal process, not disclose to any person the fact that Proprietary Information has been disclosed to Red Mountain; provided that, for the\navoidance of doubt, the disclosure of the existence of this letter agreement and the filing of this letter agreement as an exhibit to any Schedule 13D\nor amendment thereto shall not be deemed to be a breach of the foregoing clause (iii). The obligations of Red Mountain contained in this paragraph\nto keep Proprietary Information confidential shall survive any termination or expiration of this agreement for a period of nine months from and after\nthe termination or expiration of this agreement.\nIn the event that Red Mountain or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of Red\nMountain’s securities are listed or quoted) or by legal process to disclose any Proprietary Information, Red Mountain shall provide ATSG with\nprompt notice of such request or requirement in order to enable ATSG (i) to seek an appropriate protective order or other remedy, (ii) to consult with\nRed Mountain with respect to ATSG’s taking steps to resist or narrow the scope of such request or legal process or (iii) to waive compliance, in\nwhole or in part, with the terms of this letter agreement. In the event that such protective order or other remedy is not timely sought or obtained, or\nATSG waives compliance, in whole or in part, with the terms of this letter agreement, Red Mountain shall use commercially reasonable efforts to\ndisclose only that portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that\nis so disclosed will be accorded confidential treatment. In the event that Red Mountain shall have complied, in all material respects, with the\nprovisions of this paragraph, such disclosure may be made by Red Mountain without any liability hereunder.\nFor a period commencing with the date of this letter agreement and ending on the later to occur of December 31, 2009, or the date upon\nwhich no persons affiliated with Red\n-2-\nMountain are serving on the Board of Directors, neither Red Mountain nor its Affiliates nor any other person affiliated with Red Mountain shall,\nwithout the prior written consent of ATSG or the Board of Directors, directly or indirectly:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (i) any additional common stock or\ndirect or indirect rights to acquire any common stock of ATSG or any subsidiary thereof, or of any successor to or person in control of ATSG\nsuch that Red Mountain, the Affiliates and any other person affiliated with Red Mountain, collectively, beneficially own, directly or indirectly,\nfor purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 13d-3 thereunder (or any\ncomparable or successor law or regulation) in excess of 14.9% of the amount of the issued and outstanding common stock of ATSG, or (ii) any\nassets of ATSG or any subsidiary or division thereof or of any such successor or controlling person;\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of ATSG;\n(c) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving ATSG or any of its securities or assets;\n(e) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act in connection with any of the\nforegoing;\n(f) otherwise act or seek to control or influence the Board of Directors or the management or policies of ATSG;\n(g) take any action that could reasonably be expected to require ATSG to make a public announcement regarding the possibility of any of\nthe events described in clauses (a) through (e) above; or\n(h) request ATSG or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe foregoing paragraph is sometimes referenced in this letter agreement as the “standstill provision.” For the avoidance of doubt, if any person\naffiliated with Red Mountain serves on the Board of Directors, the standstill provisions are not intended to be construed to apply to actions taken by\nsuch person in his capacity as a member of the Board of Directors.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning\n-3-\npending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest\nwith respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall\nnot, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Proprietary Information provided by ATSG that is entitled to protection under the attorney-client privilege,\nwork product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this letter agreement, and under\nthe joint defense doctrine. Nothing in this letter agreement obligates ATSG to reveal material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege.\nRed Mountain acknowledges that neither ATSG nor any of its Representatives makes any express or implied representation or warranty\nas to the accuracy or completeness of any Proprietary Information, and Red Mountain agrees that none of such persons shall have any liability to\nRed Mountain or any of its Affiliates or Representatives relating to or arising from the use of any Proprietary Information.\nIn the event that ATSG, in its sole discretion, requests, Red Mountain shall, upon ATSG’s written request, promptly deliver to ATSG or\ndestroy (provided that any such destruction shall be certified by Red Mountain) all Proprietary Information and all copies, reproductions, summaries,\nanalyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in Red\nMountain’s possession or in the possession of any Representative of Red Mountain or any Affiliate.\nRed Mountain is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, ATSG shall be entitled to equitable relief by way\nof injunction or otherwise if Red Mountain or any of the Affiliates breaches or threatens to breach any of the provisions of this letter agreement.\nNo failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall\nany single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of Ohio law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of Ohio.\n-4-\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information,\nand no modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nThis letter agreement shall terminate automatically on the later to occur of December 31, 2009, or the date upon which no persons\naffiliated with Red Mountain are serving on the Board of Directors (or on such later date agreed upon in writing by the parties); provided that Red\nMountain may, in its sole discretion, terminate this letter agreement (including the standstill provision) by delivering written notice of such\ntermination to ATSG at any time after the approval by the Board of Directors of:\n(i) any sale of more than 20% of the assets of ATSG and its subsidiaries, taken as a whole;\n(ii) the beneficial ownership (as defined by Rule 13d-3 under the Exchange Act) by any person of more than 20% of any class of\noutstanding equity securities of ATSG, including any equity issuance, tender offer, exchange offer or other transaction or series of\ntransactions that, if consummated, would result in any person beneficially owning more than 20% of any class of outstanding\nequity securities of ATSG; or\n(iii) any merger, consolidation or other business combination involving ATSG or any of its subsidiaries and a third party.\nIn addition, if the Board of Directors undertakes a formal process to solicit proposals with respect to any of the foregoing or, with respect to\nunsolicited proposals, determines that any proposal relating to any of the foregoing is reasonably likely to be approved, ATSG shall notify Red\nMountain that subparagraph (h) of the standstill provision has been waived by ATSG.\nFor the avoidance of doubt, neither Red Mountain nor any other person shall have any obligation hereunder (and Red Mountain shall not\nbe prohibited by this letter agreement from taking, directly and indirectly, any or all of the actions described in subparagraphs (a) through (h) of the\nstandstill provision) from and after the termination of this letter agreement.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\n[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]\n-5-\nVery truly yours,\nAIR TRANSPORT SERVICES GROUP, INC.\nBy: /s/ W. Joseph Payne\nW. Joseph Payne\nSr. Vice President\nCorporate General Counsel & Secretary\nACCEPTED AND AGREED as of the date first written above:\nRED MOUNTAIN CAPITAL PARTNERS LLC\nBy: /s/ J. Christopher Teets\nJ. Christopher Teets\n-6-	EX-4 2 dex4.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 4\n[AIR TRANSPORT SERVICES GROUP LETTERHEAD]\nFebruary 2, 2009\nJ. Christopher Teets\nPartner\nRed Mountain Capital Partners LLC\n10100 Santa Monica Boulevard, Suite 925\nLos Angeles, CA 90067\nRe: Confidentiality and Standstill Agreement\nDear Mr. Teets:\nAs you know, that certain letter agreement by and between Red Mountain Capital Partners LLC, a Delaware limited liability company\n(“Red Mountain”) and Air Transport Services Group, Inc., a Delaware corporation (formerly ABX Holdings, Inc., “ATSG”), dated February 6, 2008,\nterminated automatically pursuant to its terms on December 31, 2008. In response to Red Mountain’s renewed request, ATSG has agreed to and\nexpects to deliver to Red Mountain, following the execution and delivery of this letter agreement by Red Mountain, certain information about its\nproperties, employees, finances, businesses and operations (including monthly financial information and all information and materials provided or\nmade available to the full board of directors of ATSG (the “Board of Directors”) or otherwise to a majority of the members of the Board of\nDirectors) that is currently available or becomes available during the duration of this letter agreement; provided, however, that nothing in this letter\nagreement obligates ATSG to disclose any information if such disclosure would be unlawful or result in a breach by ATSG or one of its subsidiaries\nof a confidentiality agreement with a third party.\nAll information about ATSG or any third party that is furnished by ATSG or its Representatives (as defined below) to Red Mountain on\nor after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter agreement as “Proprietary Information.”\nProprietary Information shall not include, however, information which (i) is or becomes generally available to the public other than as a result of a\ndisclosure by Red Mountain, the Affiliates (as defined below) or any of their respective Representatives in violation of this letter agreement; (ii) was\navailable to Red Mountain on a nonconfidential basis prior to its disclosure by ATSG or its Representatives; (iii) becomes available to Red Mountain\non a nonconfidential basis from a person other than ATSG or its Representatives who is not otherwise bound by a confidentiality agreement with\nATSG or any or its Representatives, or is otherwise not under an obligation to ATSG or any of its Representatives not to transmit the information to\nRed Mountain; or (iv) was independently developed by Red Mountain without reference to or use of the Proprietary Information. For purposes of\nthis letter agreement, (i) “Affiliates” shall mean, collectively, Red Mountain Capital Partners II, L.P., a Delaware limited partnership, Red Mountain\nCapital Partners III, L.P., a Delaware limited partnership, RMCP GP LLC, a Delaware limited liability company, Red Mountain Capital\nManagement, Inc., a Delaware corporation, and Willem Mesdag, a natural person; (ii) “Representative” shall mean, as to any person, its directors,\nofficers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants); and (iii) “person” shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by ATSG, Red Mountain shall, (i) except as\nrequired by law, keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person (other than to its\nAffiliates, Representatives and Representatives of the Affiliates who have a need to know such information for purposes of assisting in Red\nMountain’s evaluation of ATSG, provided that each such Affiliate and Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with Red Mountain’s confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) not use Proprietary Information for any purpose other than in connection with the evaluation of ATSG; and (iii) except as required\nby law or legal process, not disclose to any person the fact that Proprietary Information has been disclosed to Red Mountain; provided that, for the\navoidance of doubt, the disclosure of the existence of this letter agreement and the filing of this letter agreement as an exhibit to any Schedule 13D\nor amendment thereto shall not be deemed to be a breach of the foregoing clause (iii). The obligations of Red Mountain contained in this paragraph\nto keep Proprietary Information confidential shall survive any termination or expiration of this agreement for a period of nine months from and after\nthe termination or expiration of this agreement.\nIn the event that Red Mountain or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of Red\nMountain’s securities are listed or quoted) or by legal process to disclose any Proprietary Information, Red Mountain shall provide ATSG with\nprompt notice of such request or requirement in order to enable ATSG (i) to seek an appropriate protective order or other remedy, (ii) to consult with\nRed Mountain with respect to ATSG’s taking steps to resist or narrow the scope of such request or legal process or (iii) to waive compliance, in\nwhole or in part, with the terms of this letter agreement. In the event that such protective order or other remedy is not timely sought or obtained, or\nATSG waives compliance, in whole or in part, with the terms of this letter agreement, Red Mountain shall use commercially reasonable efforts to\ndisclose only that portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that\nis so disclosed will be accorded confidential treatment. In the event that Red Mountain shall have complied, in all material respects, with the\nprovisions of this paragraph, such disclosure may be made by Red Mountain without any liability hereunder.\nFor a period commencing with the date of this letter agreement and ending on the later to occur of December 31, 2009, or the date upon\nwhich no persons affiliated with Red\n-\nMountain are serving on the Board of Directors, neither Red Mountain nor its Affiliates nor any other person affiliated with Red Mountain shall,\nwithout the prior written consent of ATSG or the Board of Directors, directly or indirectly:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (i) any additional common stock or\ndirect or indirect rights to acquire any common stock of ATSG or any subsidiary thereof, or of any successor to or person in control of ATSG\nsuch that Red Mountain, the Affiliates and any other person affiliated with Red Mountain, collectively, beneficially own, directly or indirectly,\nfor purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 13d-3 thereunder (or any\ncomparable or successor law or regulation) in excess of 14.9% of the amount of the issued and outstanding common stock of ATSG, or (ii) any\nassets of ATSG or any subsidiary or division thereof or of any such successor or controlling person;\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of ATSG;\n(c) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving ATSG or any of its securities or assets;\n(e) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act in connection with any of the\nforegoing;\n(f) otherwise act or seek to control or influence the Board of Directors or the management or policies of ATSG;\n(g) take any action that could reasonably be expected to require ATSG to make a public announcement regarding the possibility of any of\nthe events described in clauses (a) through (e) above; or\n(h) request ATSG or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe foregoing paragraph is sometimes referenced in this letter agreement as the “standstill provision.” For the avoidance of doubt, if any person\naffiliated with Red Mountain serves on the Board of Directors, the standstill provisions are not intended to be construed to apply to actions taken by\nsuch person in his capacity as a member of the Board of Directors.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning\n_3-\npending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest\nwith respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall\nnot, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Proprietary Information provided by ATSG that is entitled to protection under the attorney-client privilege,\nwork product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this letter agreement, and under\nthe joint defense doctrine. Nothing in this letter agreement obligates ATSG to reveal material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege.\nRed Mountain acknowledges that neither ATSG nor any of its Representatives makes any express or implied representation or warranty\nas to the accuracy or completeness of any Proprietary Information, and Red Mountain agrees that none of such persons shall have any liability to\nRed Mountain or any of its Affiliates or Representatives relating to or arising from the use of any Proprietary Information.\nIn the event that ATSG, in its sole discretion, requests, Red Mountain shall, upon ATSG’s written request, promptly deliver to ATSG or\ndestroy (provided that any such destruction shall be certified by Red Mountain) all Proprietary Information and all copies, reproductions, summaries,\nanalyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in Red\nMountain’s possession or in the possession of any Representative of Red Mountain or any Affiliate.\nRed Mountain is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, ATSG shall be entitled to equitable relief by way\nof injunction or otherwise if Red Mountain or any of the Affiliates breaches or threatens to breach any of the provisions of this letter agreement.\nNo failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall\nany single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of Ohio law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of Ohio.\n4-\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information,\nand no modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nThis letter agreement shall terminate automatically on the later to occur of December 31, 2009, or the date upon which no persons\naffiliated with Red Mountain are serving on the Board of Directors (or on such later date agreed upon in writing by the parties); provided that Red\nMountain may, in its sole discretion, terminate this letter agreement (including the standstill provision) by delivering written notice of such\ntermination to ATSG at any time after the approval by the Board of Directors of:\n \n@ any sale of more than 20% of the assets of ATSG and its subsidiaries, taken as a whole;\n(ii)  the beneficial ownership (as defined by Rule 13d-3 under the Exchange Act) by any person of more than 20% of any class of\noutstanding equity securities of ATSG, including any equity issuance, tender offer, exchange offer or other transaction or series of\ntransactions that, if consummated, would result in any person beneficially owning more than 20% of any class of outstanding\nequity securities of ATSG; or\n(iii)  any merger, consolidation or other business combination involving ATSG or any of its subsidiaries and a third party.\nIn addition, if the Board of Directors undertakes a formal process to solicit proposals with respect to any of the foregoing or, with respect to\nunsolicited proposals, determines that any proposal relating to any of the foregoing is reasonably likely to be approved, ATSG shall notify Red\nMountain that subparagraph (h) of the standstill provision has been waived by ATSG.\nFor the avoidance of doubt, neither Red Mountain nor any other person shall have any obligation hereunder (and Red Mountain shall not\nbe prohibited by this letter agreement from taking, directly and indirectly, any or all of the actions described in subparagraphs (a) through (h) of the\nstandstill provision) from and after the termination of this letter agreement.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\n[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]\n_5-\nVery truly yours,\nAIR TRANSPORT SERVICES GROUP, INC.\nBy: /s/ W. Joseph Payne\nW. Joseph Payne\nSr. Vice President\nCorporate General Counsel & Secretary\nACCEPTED AND AGREED as of the date first written above:\nRED MOUNTAIN CAPITAL PARTNERS LLC\nBy: /s/J. Christopher Teets\nJ. Christopher Teets	EX-4 2 dex4.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 4\n[AIR TRANSPORT SERVICES GROUP LETTERHEAD]\nFebruary 2, 2009\nJ. Christopher Teets\nPartner\nRed Mountain Capital Partners LLC\n10100 Santa Monica Boulevard, Suite 925\nLos Angeles, CA 90067\nRe: Confidentiality and Standstill Agreement\nDear Mr. Teets:\nAs you know, that certain letter agreement by and between Red Mountain Capital Partners LLC, a Delaware limited liability company\n("Red\nMountain") and Air Transport Services Group, Inc., a Delaware corporation (formerly ABX Holdings, Inc., "ATSG"), dated February 6, 2008,\nterminated automatically pursuant to its terms on December 31, 2008. In response to Red Mountain's renewed request, ATSG has agreed to and\nexpects to deliver to Red Mountain, following the execution and delivery of this letter agreement by Red Mountain, certain information about its\nproperties, employees, finances, businesses and operations (including monthly financial information and all information and materials provided or\nmade available to the full board of directors of ATSG (the "Board of Directors") or otherwise to a majority of the members of the Board of\nDirectors) that is currently available or becomes available during the duration of this letter agreement; provided, however, that nothing in this letter\nagreement obligates ATSG to disclose any information if such disclosure would be unlawful or result in a breach by ATSG or one of its subsidiaries\nof a confidentiality agreement with a third party.\nAll information about ATSG or any third party that is furnished by ATSG or its Representatives (as defined below) to Red Mountain on\nor after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter agreement as "Proprietary Information."\nProprietary Information shall not include, however, information which (i) is or becomes generally available to the public other than as a result of a\ndisclosure by Red Mountain, the Affiliates (as defined below) or any of their respective Representatives in violation of this letter agreement; (ii) was\navailable to Red Mountain on a nonconfidentia basis prior to its disclosure by ATSG or its Representatives; (iii) becomes available to Red Mountain\non a nonconfidential basis from a person other than ATSG or its Representatives who is not otherwise bound by a confidentiality agreement with\nATSG or any or its Representatives, or is otherwise not under an obligation to ATSG or any of its Representatives not to transmit the information\nto\nRed Mountain; or (iv) was independently developed by Red Mountain without reference to or use of the Proprietary Information. For purposes of\nthis letter agreement, (i) "Affiliates" shall mean, collectively, Red Mountain Capital Partners II, L.P., a Delaware limited partnership, Red Mountain\nCapital Partners III, L.P., a Delaware limited partnership, RMCP GP LLC, a Delaware limited liability company, Red Mountain Capital\nManagement, Inc., a Delaware corporation, and Willem Mesdag, a natural person; (ii) "Representative" shall mean, as to any person, its directors,\nofficers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants); and (iii) "person" shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by ATSG, Red Mountain shall, (i) except as\nrequired by law, keep all Proprietary Information confidentia and not disclose or reveal any Proprietary Information to any person (other than to its\nAffiliates, Representatives and Representatives of the Affiliates who have a need to know such information for purposes of assisting in Red\nMountain's evaluation of ATSG, provided that each such Affiliate and Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with Red Mountain's confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) not use Proprietary Information for any purpose other than in connection with the evaluation of ATSG; and (iii) except as required\nby law or legal process, not disclose to any person the fact that Proprietary Information has been disclosed to Red Mountain; provided that, for the\navoidance of doubt, the disclosure of the existence of this letter agreement and the filing of this letter agreement as an exhibit to any Schedule 13D\nor amendment thereto shall not be deemed to be a breach of the foregoing clause (iii). The obligations of Red Mountain contained in this paragraph\nto keep Proprietary Information confidential shall survive any termination or expiration of this agreement for a period of nine months from and after\nthe termination or expiration of this agreement.\nIn the event that Red Mountain or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of Red\nMountain's securities are listed or quoted) or by legal process to disclose any Proprietary Information, Red Mountain shall provide ATSG with\nprompt notice of such request or requirement in order to enable ATSG (i) to seek an appropriate protective order or other remedy, (ii) to consult with\nRed Mountain with respect to ATSG's taking steps to resist or narrow the scope of such request or legal process or (iii) to waive compliance, in\nwhole or in part, with the terms of this letter agreement. In the event that such protective order or other remedy is not timely sought or obtained, or\nATSG waives compliance, in whole or in part, with the terms of this letter agreement, Red Mountain shall use commercially reasonable efforts to\ndisclose only that portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that\nis so disclosed will be accorded confidential treatment. In the event that Red Mountain shall have complied, in all material respects, with the\nprovisions of this paragraph, such disclosure may be made by Red Mountain without any liability hereunder.\nFor a period commencing with the date of this letter agreement and ending on the later to occur of December 31, 2009, or the date upon\nwhich no persons affiliated with Red\n-2-\nMountain are serving on the Board of Directors, neither Red Mountain nor its Affiliates nor any other person affiliated with Red Mountain shall,\nwithout the prior written consent of ATSG or the Board of Directors, directly or indirectly:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (i) any additional common stock or\ndirect or indirect rights to acquire any common stock of ATSG or any subsidiary thereof, or of any successor to or person in control of ATSG\nsuch that Red Mountain, the Affiliates and any other person affiliated with Red Mountain, collectively, beneficially own, directly or indirectly,\nfor purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 13d-3 thereunder (or any\ncomparable or successor law or regulation) in excess of 14.9% of the amount of the issued and outstanding common stock of ATSG, or (ii) any\nassets of ATSG or any subsidiary or division thereof or of any such successor or controlling person;\n(b) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of ATSG;\n(c) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving ATSG or any of its securities or assets;\n(e) form, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Exchange Act in connection with any of the\nforegoing;\n(f) otherwise act or seek to control or influence the Board of Directors or the management or policies of ATSG;\n(g) take any action that could reasonably be expected to require ATSG to make a public announcement regarding the possibility of any of\nthe events described in clauses (a) through (e) above; or\n(h) request ATSG or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe foregoing paragraph is sometimes referenced in this letter agreement as the "'standstill provision." For the avoidance of doubt, if any person\naffiliated with Red Mountain serves on the Board of Directors, the standstill provisions are not intended to be construed to apply to actions taken by\nsuch person in his capacity as a member of the Board of Directors.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning\n-3-\npending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest\nwith respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall\nnot, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Proprietary Information provided by ATSG that is entitled to protection under the attorney-client privilege,\nwork product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this letter agreement, and under\nthe joint defense doctrine. Nothing in this letter agreement obligates ATSG to reveal material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege.\nRed Mountain acknowledges that neither ATSG nor any of its Representatives makes any express or implied representation or warranty\nas to the accuracy or completeness of any Proprietary Information, and Red Mountain agrees that none of such persons shall have any liability to\nRed Mountain or any of its Affiliates or Representatives relating to or arising from the use of any Proprietary Information.\nIn the event that ATSG, in its sole discretion, requests, Red Mountain shall, upon ATSG's written request, promptly deliver to ATSG or\ndestroy (provided that any such destruction shall be certified by Red Mountain) all Proprietary Information and all copies, reproductions, summaries,\nanalyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in Red\nMountain's possession or in the possession of any Representative of Red Mountain or any Affiliate.\nRed Mountain is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, ATSG shall be entitled to equitable relief by way\nof injunction or otherwise if Red Mountain or any of the Affiliates breaches or threatens to breach any of the provisions of this letter agreement.\nNo failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall\nany\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of Ohio law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of Ohio.\n-4-\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information,\nand no modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nThis letter agreement shall terminate automatically on the later to occur of December 31, 2009, or the date upon which no persons\naffiliated with Red Mountain are serving on the Board of Directors (or on such later date agreed upon in writing by the parties); provided that Red\nMountain may, in its sole discretion, terminate this letter agreement (including the standstill provision) by delivering written notice of such\ntermination to ATSG at any time after the approval by the Board of Directors of:\n(i)\nany sale of more than 20% of the assets of ATSG and its subsidiaries, taken as a whole;\n(ii)\nthe beneficial ownership (as defined by Rule 13d-3 under the Exchange Act) by any person of more than 20% of any class\nof\noutstanding equity securities of ATSG, including any equity issuance, tender offer, exchange offer or other transaction or series\nof\ntransactions that, if consummated, would result in any person beneficially owning more than 20% of any class of outstanding\nequity securities of ATSG; or\n(iii)\nany merger, consolidation or other business combination involving ATSG or any of its subsidiaries and a third party.\nIn addition, if the Board of Directors undertakes a formal process to solicit proposals with respect to any of the foregoing or, with respect to\nunsolicited proposals, determines that any proposal relating to any of the foregoing is reasonably likely to be approved, ATSG shall notify Red\nMountain that subparagraph (h) of the standstill provision has been waived by ATSG.\nFor the avoidance of doubt, neither Red Mountain nor any other person shall have any obligation hereunder (and Red Mountain shall\nnot\nbe prohibited by this letter agreement from taking, directly and indirectly, any or all of the actions described in subparagraphs (a) through (h) of the\nstandstill provision) from and after the termination of this letter agreement.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\n[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]\n-5-\nVery truly yours,\nAIR TRANSPORT SERVICES GROUP, INC.\nBy: /s/ W. Joseph Payne\nW. Joseph Payne\nSr. Vice President\nCorporate General Counsel & Secretary\nACCEPTED AND AGREED as of the date first written above:\nRED MOUNTAIN CAPITAL PARTNERS LLC\nBy: /s/ J. Christopher Teets\nJ. Christopher Teets\n-6-	EX-4 2 dex4.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 4\n[AIR TRANSPORT SERVICES GROUP LETTERHEAD]\nFebruary 2, 2009\nJ. Christopher Teets\nPartner\nRed Mountain Capital Partners LLC\n10100 Santa Monica Boulevard, Suite 925\nLos Angeles, CA 90067\nRe: Confidentiality and Standstill Agreement\nDear Mr. Teets:\nAs you know, that certain letter agreement by and between Red Mountain Capital Partners LLC, a Delaware limited liability company\n(“Red Mountain”) and Air Transport Services Group, Inc., a Delaware corporation (formerly ABX Holdings, Inc., “ATSG”), dated February 6, 2008,\nterminated automatically pursuant to its terms on December 31, 2008. In response to Red Mountain’s renewed request, ATSG has agreed to and\nexpects to deliver to Red Mountain, following the execution and delivery of this letter agreement by Red Mountain, certain information about its\nproperties, employees, finances, businesses and operations (including monthly financial information and all information and materials provided or\nmade available to the full board of directors of ATSG (the “Board of Directors”) or otherwise to a majority of the members of the Board of\nDirectors) that is currently available or becomes available during the duration of this letter agreement; provided, however, that nothing in this letter\nagreement obligates ATSG to disclose any information if such disclosure would be unlawful or result in a breach by ATSG or one of its subsidiaries\nof a confidentiality agreement with a third party.\nAll information about ATSG or any third party that is furnished by ATSG or its Representatives (as defined below) to Red Mountain on\nor after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter agreement as “Proprietary Information.”\nProprietary Information shall not include, however, information which (i) is or becomes generally available to the public other than as a result of a\ndisclosure by Red Mountain, the Affiliates (as defined below) or any of their respective Representatives in violation of this letter agreement; (ii) was\navailable to Red Mountain on a nonconfidential basis prior to its disclosure by ATSG or its Representatives; (iii) becomes available to Red Mountain\non a nonconfidential basis from a person other than ATSG or its Representatives who is not otherwise bound by a confidentiality agreement with\nATSG or any or its Representatives, or is otherwise not under an obligation to ATSG or any of its Representatives not to transmit the information to\nRed Mountain; or (iv) was independently developed by Red Mountain without reference to or use of the Proprietary Information. For purposes of\nthis letter agreement, (i) “Affiliates” shall mean, collectively, Red Mountain Capital Partners II, L.P., a Delaware limited partnership, Red Mountain\nCapital Partners III, L.P., a Delaware limited partnership, RMCP GP LLC, a Delaware limited liability company, Red Mountain Capital\nManagement, Inc., a Delaware corporation, and Willem Mesdag, a natural person; (ii) “Representative” shall mean, as to any person, its directors,\nofficers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants); and (iii) “person” shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by ATSG, Red Mountain shall, (i) except as\nrequired by law, keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person (other than to its\nAffiliates, Representatives and Representatives of the Affiliates who have a need to know such information for purposes of assisting in Red\nMountain’s evaluation of ATSG, provided that each such Affiliate and Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with Red Mountain’s confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) not use Proprietary Information for any purpose other than in connection with the evaluation of ATSG; and (iii) except as required\nby law or legal process, not disclose to any person the fact that Proprietary Information has been disclosed to Red Mountain; provided that, for the\navoidance of doubt, the disclosure of the existence of this letter agreement and the filing of this letter agreement as an exhibit to any Schedule 13D\nor amendment thereto shall not be deemed to be a breach of the foregoing clause (iii). The obligations of Red Mountain contained in this paragraph\nto keep Proprietary Information confidential shall survive any termination or expiration of this agreement for a period of nine months from and after\nthe termination or expiration of this agreement.\nIn the event that Red Mountain or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of Red\nMountain’s securities are listed or quoted) or by legal process to disclose any Proprietary Information, Red Mountain shall provide ATSG with\nprompt notice of such request or requirement in order to enable ATSG (i) to seek an appropriate protective order or other remedy, (ii) to consult with\nRed Mountain with respect to ATSG’s taking steps to resist or narrow the scope of such request or legal process or (iii) to waive compliance, in\nwhole or in part, with the terms of this letter agreement. In the event that such protective order or other remedy is not timely sought or obtained, or\nATSG waives compliance, in whole or in part, with the terms of this letter agreement, Red Mountain shall use commercially reasonable efforts to\ndisclose only that portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that\nis so disclosed will be accorded confidential treatment. In the event that Red Mountain shall have complied, in all material respects, with the\nprovisions of this paragraph, such disclosure may be made by Red Mountain without any liability hereunder.\nFor a period commencing with the date of this letter agreement and ending on the later to occur of December 31, 2009, or the date upon\nwhich no persons affiliated with Red\n-2-\nMountain are serving on the Board of Directors, neither Red Mountain nor its Affiliates nor any other person affiliated with Red Mountain shall,\nwithout the prior written consent of ATSG or the Board of Directors, directly or indirectly:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (i) any additional common stock or\ndirect or indirect rights to acquire any common stock of ATSG or any subsidiary thereof, or of any successor to or person in control of ATSG\nsuch that Red Mountain, the Affiliates and any other person affiliated with Red Mountain, collectively, beneficially own, directly or indirectly,\nfor purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 13d-3 thereunder (or any\ncomparable or successor law or regulation) in excess of 14.9% of the amount of the issued and outstanding common stock of ATSG, or (ii) any\nassets of ATSG or any subsidiary or division thereof or of any such successor or controlling person;\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of ATSG;\n(c) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving ATSG or any of its securities or assets;\n(e) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act in connection with any of the\nforegoing;\n(f) otherwise act or seek to control or influence the Board of Directors or the management or policies of ATSG;\n(g) take any action that could reasonably be expected to require ATSG to make a public announcement regarding the possibility of any of\nthe events described in clauses (a) through (e) above; or\n(h) request ATSG or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe foregoing paragraph is sometimes referenced in this letter agreement as the “standstill provision.” For the avoidance of doubt, if any person\naffiliated with Red Mountain serves on the Board of Directors, the standstill provisions are not intended to be construed to apply to actions taken by\nsuch person in his capacity as a member of the Board of Directors.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning\n-3-\npending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest\nwith respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall\nnot, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Proprietary Information provided by ATSG that is entitled to protection under the attorney-client privilege,\nwork product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this letter agreement, and under\nthe joint defense doctrine. Nothing in this letter agreement obligates ATSG to reveal material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege.\nRed Mountain acknowledges that neither ATSG nor any of its Representatives makes any express or implied representation or warranty\nas to the accuracy or completeness of any Proprietary Information, and Red Mountain agrees that none of such persons shall have any liability to\nRed Mountain or any of its Affiliates or Representatives relating to or arising from the use of any Proprietary Information.\nIn the event that ATSG, in its sole discretion, requests, Red Mountain shall, upon ATSG’s written request, promptly deliver to ATSG or\ndestroy (provided that any such destruction shall be certified by Red Mountain) all Proprietary Information and all copies, reproductions, summaries,\nanalyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in Red\nMountain’s possession or in the possession of any Representative of Red Mountain or any Affiliate.\nRed Mountain is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, ATSG shall be entitled to equitable relief by way\nof injunction or otherwise if Red Mountain or any of the Affiliates breaches or threatens to breach any of the provisions of this letter agreement.\nNo failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall\nany single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of Ohio law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of Ohio.\n-4-\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information,\nand no modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nThis letter agreement shall terminate automatically on the later to occur of December 31, 2009, or the date upon which no persons\naffiliated with Red Mountain are serving on the Board of Directors (or on such later date agreed upon in writing by the parties); provided that Red\nMountain may, in its sole discretion, terminate this letter agreement (including the standstill provision) by delivering written notice of such\ntermination to ATSG at any time after the approval by the Board of Directors of:\n(i) any sale of more than 20% of the assets of ATSG and its subsidiaries, taken as a whole;\n(ii) the beneficial ownership (as defined by Rule 13d-3 under the Exchange Act) by any person of more than 20% of any class of\noutstanding equity securities of ATSG, including any equity issuance, tender offer, exchange offer or other transaction or series of\ntransactions that, if consummated, would result in any person beneficially owning more than 20% of any class of outstanding\nequity securities of ATSG; or\n(iii) any merger, consolidation or other business combination involving ATSG or any of its subsidiaries and a third party.\nIn addition, if the Board of Directors undertakes a formal process to solicit proposals with respect to any of the foregoing or, with respect to\nunsolicited proposals, determines that any proposal relating to any of the foregoing is reasonably likely to be approved, ATSG shall notify Red\nMountain that subparagraph (h) of the standstill provision has been waived by ATSG.\nFor the avoidance of doubt, neither Red Mountain nor any other person shall have any obligation hereunder (and Red Mountain shall not\nbe prohibited by this letter agreement from taking, directly and indirectly, any or all of the actions described in subparagraphs (a) through (h) of the\nstandstill provision) from and after the termination of this letter agreement.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\n[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]\n-5-\nVery truly yours,\nAIR TRANSPORT SERVICES GROUP, INC.\nBy: /s/ W. Joseph Payne\nW. Joseph Payne\nSr. Vice President\nCorporate General Counsel & Secretary\nACCEPTED AND AGREED as of the date first written above:\nRED MOUNTAIN CAPITAL PARTNERS LLC\nBy: /s/ J. Christopher Teets\nJ. Christopher Teets\n-6-
82b263d025fddef5a8048b34eed91942.pdf	effective_date jurisdiction party term	EX-10.4 5 dex104.htm EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nExhibit 10.4\nEXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nTHIS EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT (the “Agreement”) is entered into as of\n, 2009 (the “Effective Date”), between The Hershey Company, a Delaware corporation together with its subsidiaries and affiliates and its\nand their respective successors and assigns (“Employer” or “Company”), and the undersigned officer of Employer (“Executive”).\nWHEREAS, Executive currently serves, or is being hired or promoted to serve, as an officer of the Company subject to election or\nappointment by the Company’s Board of Directors and eligible for participation in the performance stock unit (“PSU”) program, the restricted stock\nunit (“RSU”) program and in other equity grants and future cycles under the Company’s Equity and Incentive Compensation Program (“E-grade\nOfficer”).\nWHEREAS, Employer possesses certain valuable confidential, proprietary and/or trade secret information (collectively, “Confidential\nInformation,” as further defined below) that gives Employer a competitive advantage.\nWHEREAS, Employer has developed and maintained, at substantial expense and over a considerable period of time, relationships with\ncustomers, suppliers, agents, licensees, licensors and others that likewise give Employer a competitive advantage (“Business Relationships”).\nWHEREAS, as a result of Executive’s past, future, and/or continued employment as an E-grade Officer, Executive has been and/or will be\nand/or will continue to be given access to, and will assist in, the development and maintenance of Employer’s Confidential Information and Business\nRelationships, and it is the parties’ intent to continue to safeguard such Confidential Information and Business Relationships both during and after\nthe term of Executive’s employment with Employer.\nWHEREAS, Employer’s reputation and present and future competitive position are dependent upon Employer’s ability to protect its interests\nin such Confidential Information and Business Relationships.\nNOW, THEREFORE, in consideration of (i) Employer employing Executive as an E-grade Officer, (ii) Employer providing and continuing to\nprovide Executive access to such Confidential Information and Business Relationships, (iii) Employer making PSU awards, RSU awards and other\nequity grants to Executive under the next cycle and all future cycles for which Executive is eligible, (iv) if applicable, Employer permitting\nExecutive to participate in and be eligible to receive amounts in the future under defined benefit or defined contribution supplemental executive\nretirement plans (DB SERP or DC SERP, as applicable), and/or (v) other good and valuable consideration, the sufficiency and receipt of which are\nhereby acknowledged, Employer and Executive agree as follows:\n1. Non-Disclosure of Confidential Information. Executive acknowledges that due to the nature of his/her employment and the position of trust\nthat he/she holds or will hold with Employer, he/she will have special access to, learn, be provided with, and in some cases will prepare and create\nfor Employer, trade secrets and other confidential and proprietary information relating to Employer’s business, including, but not limited to,\ninformation about Employer’s manufacturing processes; manuals, recipes and ingredient percentages; engineering drawings; product and process\nresearch and development; new product information; cost information; supplier data; strategic business information; information related to\nEmployer’s legal strategies or legal advice rendered to Employer; marketing, financial and business development information, plans, forecasts,\nreports and budgets; customer information; new product strategies, plans and project activities; and acquisition and divestiture strategies, plans and\nproject activities (collectively, “Confidential Information”). Executive acknowledges and agrees that Confidential Information, whether or not in\nwritten form, is the exclusive property of Employer, that it has been and will continue to be of critical importance to the business of Employer, and\nthat the disclosure of it to, or use of it by, competitors and others will cause Employer substantial and irreparable harm. Accordingly, Executive will\nnot, either during his/her employment or at any time after the termination (whether voluntary or involuntary, and regardless of reason) of such\nemployment with Employer, use, or disclose any Confidential Information relating to the business of Employer which is not generally available to\nthe public. Notwithstanding the foregoing provisions of this Paragraph 1, Executive may disclose or use any such information (i) when such\ndisclosure or use may be required or appropriate in the good faith judgment of Executive in the course of performing his/her duties to Employer and\nin accordance with Employer policies and procedures, (ii) when required by a court of law, by any governmental agency having supervisory\nauthority over Executive or the business of Employer, or by any administrative or legislative body (including a committee thereof) with apparent\njurisdiction, or (iii) with the prior written consent of Employer’s Chief Executive Officer (“CEO”) or Board of Directors (“Board”) (provided that, if\nExecutive is CEO, such consent must be by the Board). Notwithstanding anything herein to the contrary, Executive understands and agrees that\nhis/her obligations under this Agreement shall be in addition to, rather than in lieu of, any obligations Executive may have under any applicable\nstatute or at common law.\n2. Non-Competition. Executive acknowledges that Employer is engaged, domestically and worldwide, in the business of developing,\nproducing, marketing, selling and distributing chocolate, confectionery, confectionery-related snack and chocolate-related products (“Employer’s\nBusiness”). Executive acknowledges that due to the nature of his/her employment with Employer, he/she has and will have special access to, contact\nwith, and Confidential Information about, Employer’s Business and Business Relationships. Executive acknowledges that Employer has incurred\nconsiderable expense and invested considerable time and resources in developing its Confidential Information and Business Relationships, and that\nsuch Confidential Information and Business Relationships are critical to the success of Employer’s Business. Accordingly, both (i) during the term of\nhis/her employment with Employer, and (ii) for a period of twelve (12) months following the termination of his/her employment (whether voluntary\nor involuntary, and regardless of reason), Executive, except in the performance of his/her duties to Employer, shall not, in any geographic area where\nEmployer conducts business or where Employer’s products are sold, without the prior written consent of Employer’s Chief People Officer, CEO and\nthe Chair of the Compensation and Executive Organization Committee of Employer’s Board of Directors (provided that, if Executive is CEO, such\nconsent must be by the\nA-2\nBoard of Directors), directly or indirectly serve or act in a consulting, executive or managerial capacity, or engage in oversight of any person who\nserves or acts in a consulting, executive or managerial capacity, as an officer, director, employee, consultant, advisor, independent contractor, agent\nor representative, for the domestic or worldwide chocolate, confectionery, confectionery-related snack or chocolate-related businesses of any person\nor entity that is in competition with any of the aspects of Employer’s Business. For purposes of clarification, Executive will not be deemed to be\ninvolved in a business in competition with Employer’s Business, and accordingly this paragraph 2 will not be violated, by the Executive\n(A) providing services to a subsidiary, division or unit of an entity (a “parent company”) that engages, directly or indirectly, in any competitive\nbusiness described above, so long as Executive and the subsidiary, division or unit to which he/she is providing services do not engage in any such\ncompetitive business, or (B) serving in a consulting, executive or managerial capacity of a parent company that engages, directly or indirectly, in any\ncompetitive business described above, so long as the gross revenues from such competitive businesses constituted less than 10% of consolidated\nannual gross revenues for the parent company’s most recently completed fiscal year.\n3. Non-Solicitation; Non-Disparagement. Both (i) during the term of his/her employment by Employer, and (ii) for a period of twelve\n(12) months following the termination of his/her employment (whether voluntary or involuntary, and regardless of reason), Executive, except in the\nperformance of his/her duties to Employer, shall not directly or indirectly (including as an officer, director, employee, consultant, advisor, agent or\nrepresentative), for himself/herself or on behalf of any other person or entity:\n(a) for any purpose that is in competition with any of the aspects of Employer’s Business, solicit, take away or engage, or participate in\nsoliciting, taking away or engaging, any customers, suppliers, agents, licensees or licensors of Employer with whom Executive had contact while\nemployed by Employer, or about whom Employer had access to confidential information as a result of Executive’s employment by Employer; or\n(b) knowingly recruit or solicit, or participate in recruiting or soliciting, any of Employer’s employees, or communicate, except in the\ncase of a reference described in the last sentence of this paragraph, with any other person or entity about the nature, quality or quantity of work, or\nany special knowledge or personal characteristics, of any person employed by Employer. If Executive should wish to discuss possible employment\nwith any then-current employee of Employer during the period set forth above, Executive may request written permission to do so from the most\nsenior human resources officer of Employer who may, in his/her discretion, grant a written exception to the no solicitation covenant set forth\nimmediately above; provided, however, Executive shall not discuss any such employment possibility with any such employee prior to such\npermission. Notwithstanding the foregoing, the provisions of this paragraph shall not be violated by (i) general advertising or solicitation not\nspecifically targeted at employees of Employer, (ii) Executive serving as a reference, upon request, for any employee of Employer, or (iii) actions\ntaken by any person or entity with which Executive is associated if Executive is not personally involved in any manner in the matter and has not\nidentified such employee for recruiting or solicitation.\nA-3\nIn addition, both (i) during the term of his/her employment by Employer, and (ii) following the termination of his/her employment (whether\nvoluntary or involuntary, and regardless of reason), Executive shall not knowingly, willfully and with intent to harm Employer make any public\nstatements that disparage Employer, its employees, officers, directors, products or services, provided that, notwithstanding the foregoing, truthful\nstatements made in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in\nconnection with such proceedings), normal competitive-type statements, and statements made in the good faith performance of the Executive’s\nduties to Employer shall not constitute a violation of this clause.\n4. Violation of Paragraphs 1, 2 or 3. Executive acknowledges Employer’s valid and protectable interest in aligning the long-term interests of\nvalued employees with those of Employer by providing Executive an ownership interest in the Employer through the PSU program and other equity\nincentive programs and otherwise, and likewise acknowledges Employer’s valid and protectable interest in preventing former employees whose\ninterests become adverse to the Employer from maintaining an ownership or other interest in the Employer. Accordingly, Executive agrees that if\nhe/she violates any of paragraphs 1, 2 or 3 above (the date on which any such violation occurs is the “Date of Breach”), Employer may, in its sole\ndiscretion, in addition to any other remedies available to it at law (including without limitation monetary damages) or in equity (including without\nlimitation temporary, preliminary and/or permanent injunctive relief):\n(a) cancel any unvested portion of any and all PSU and RSU awards;\n(b) cancel any unexercised stock options;\n(c) require Executive to pay Employer the full value of any benefits received by Executive during the period twelve (12) months prior to\nExecutive’s last date of employment through the Date of Breach, from (i) PSUs, (ii) RSUs, and (iii) the exercise of any options;\n(d) cancel any unpaid benefits of Executive under the DB SERP and DC SERP; and/or\n(e) require Executive to pay Employer the full value of any benefits already received by Executive under the DB SERP or DC SERP\n(including for this purpose amounts that would have been received but for Executive’s election to defer such amounts under the Deferred\nCompensation Plan).\nMoreover, if Employer seeks temporary, preliminary and/or permanent injunctive relief for a violation or threatened violation of paragraphs 1,\n2 or 3 above, Executive hereby expressly consents to the entry of such relief against him/her by a court of competent jurisdiction. Executive further\nagrees that in the event he/she later believes that any provision hereof is not enforceable for any reason, Executive will not act in violation of any\nsuch provision until such time as a court of competent jurisdiction enters a final judgment with respect to enforceability.\n5. Entire Agreement. Executive acknowledges and agrees that (a) this Agreement includes the entire agreement and understanding between the\nparties with respect to the subject matter hereof, and may be amended, modified or changed only by a written instrument executed\nA-4\nby Executive and Employer, and (b) violation of paragraphs 1, 2 or 3 hereof may cause Executive to lose the right to receive, or may obligate\nExecutive to repay to Employer, amounts awarded or accrued under various plans and programs of Employer as described herein and that, to the\nextent any effect of this Agreement upon such amounts may be inconsistent with the terms and conditions of such plans or programs as in effect on\nthe date hereof (including without limitation as set forth in the Long Term Incentive Program Participation Agreement to which Executive may be a\nparty), this Agreement shall constitute an amendment of such terms and conditions and Executive’s consent thereto. No provision of this Agreement\nmay be waived except by a writing executed and delivered by the party sought to be charged. Any such written waiver will be effective only with\nrespect to the event or circumstance described therein and not with respect to any other event or circumstance, unless such waiver expressly provides\nto the contrary.\n6. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nreference to principles of conflict of laws.\n(b) All notices and other communications hereunder shall be in writing; shall be delivered by hand delivery to the other party or mailed\nby registered or certified mail, return receipt requested, postage prepaid or by a nationally recognized courier service such as Federal Express; shall\nbe deemed delivered upon actual receipt; and shall be addressed as follows:\nIf to Employer:\nThe Hershey Company\n100 Crystal A Drive\nHershey, Pennsylvania 17033\nATTN: Chief People Officer\nIf to Executive:\nAt the address set forth with the signature below,\nor to such other address as either party shall have furnished to the other in writing in accordance herewith.\n(c) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective\nto the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.\nIN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date first set forth above.\nA-5\nEXECUTIVE:\nPrint Name and Address:\nEMPLOYER:\nThe Hershey Company, a Delaware corporation\nBy:\nBurton H. Snyder\nSenior Vice President, General Counsel and Secretary\nA-6	EX-10.4 5 dex104.htm EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nExhibit 10.4\nEXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nTHIS EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT (the “Agreement”) is entered into as of\n_, 2009 (the “Effective Date”), between The Hershey Company, a Delaware corporation together with its subsidiaries and affiliates and its\nand their respective successors and assigns (“Employer” or “Company”), and the undersigned officer of Employer (“Executive”).\nWHEREAS, Executive currently serves, or is being hired or promoted to serve, as an officer of the Company subject to election or\nappointment by the Company’s Board of Directors and eligible for participation in the performance stock unit (“PSU”) program, the restricted stock\nunit (“RSU”) program and in other equity grants and future cycles under the Company’s Equity and Incentive Compensation Program (“E-grade\nOfficer”).\nWHEREAS, Employer possesses certain valuable confidential, proprietary and/or trade secret information (collectively, “Confidential\nInformation,” as further defined below) that gives Employer a competitive advantage.\nWHEREAS, Employer has developed and maintained, at substantial expense and over a considerable period of time, relationships with\ncustomers, suppliers, agents, licensees, licensors and others that likewise give Employer a competitive advantage (“Business Relationships™).\nWHEREAS, as a result of Executive’s past, future, and/or continued employment as an E-grade Officer, Executive has been and/or will be\nand/or will continue to be given access to, and will assist in, the development and maintenance of Employer’s Confidential Information and Business\nRelationships, and it is the parties’ intent to continue to safeguard such Confidential Information and Business Relationships both during and after\nthe term of Executive’s employment with Employer.\nWHEREAS, Employer’s reputation and present and future competitive position are dependent upon Employer’s ability to protect its interests\nin such Confidential Information and Business Relationships.\nNOW, THEREFORE, in consideration of (i) Employer employing Executive as an E-grade Officer, (ii) Employer providing and continuing to\nprovide Executive access to such Confidential Information and Business Relationships, (iii) Employer making PSU awards, RSU awards and other\nequity grants to Executive under the next cycle and all future cycles for which Executive is eligible, (iv) if applicable, Employer permitting\nExecutive to participate in and be eligible to receive amounts in the future under defined benefit or defined contribution supplemental executive\nretirement plans (DB SERP or DC SERP, as applicable), and/or (v) other good and valuable consideration, the sufficiency and receipt of which are\nhereby acknowledged, Employer and Executive agree as follows:\n1. Non-Disclosure of Confidential Information. Executive acknowledges that due to the nature of his/her employment and the position of trust\nthat he/she holds or will hold with Employer, he/she will have special access to, learn, be provided with, and in some cases will prepare and create\nfor Employer, trade secrets and other confidential and proprietary information relating to Employer’s business, including, but not limited to,\ninformation about Employer’s manufacturing processes; manuals, recipes and ingredient percentages; engineering drawings; product and process\nresearch and development; new product information; cost information; supplier data; strategic business information; information related to\nEmployer’s legal strategies or legal advice rendered to Employer; marketing, financial and business development information, plans, forecasts,\nreports and budgets; customer information; new product strategies, plans and project activities; and acquisition and divestiture strategies, plans and\nproject activities (collectively, “Confidential Information). Executive acknowledges and agrees that Confidential Information, whether or not in\nwritten form, is the exclusive property of Employer, that it has been and will continue to be of critical importance to the business of Employer, and\nthat the disclosure of it to, or use of it by, competitors and others will cause Employer substantial and irreparable harm. Accordingly, Executive will\nnot, either during his/her employment or at any time after the termination (whether voluntary or involuntary, and regardless of reason) of such\nemployment with Employer, use, or disclose any Confidential Information relating to the business of Employer which is not generally available to\nthe public. Notwithstanding the foregoing provisions of this Paragraph 1, Executive may disclose or use any such information (i) when such\ndisclosure or use may be required or appropriate in the good faith judgment of Executive in the course of performing his/her duties to Employer and\nin accordance with Employer policies and procedures, (ii) when required by a court of law, by any governmental agency having supervisory\nauthority over Executive or the business of Employer, or by any administrative or legislative body (including a committee thereof) with apparent\njurisdiction, or (iii) with the prior written consent of Employer’s Chief Executive Officer (“CEO”) or Board of Directors (“Board”) (provided that, if\nExecutive is CEO, such consent must be by the Board). Notwithstanding anything herein to the contrary, Executive understands and agrees that\nhis/her obligations under this Agreement shall be in addition to, rather than in lieu of, any obligations Executive may have under any applicable\nstatute or at common law.\n2. Non-Competition. Executive acknowledges that Employer is engaged, domestically and worldwide, in the business of developing,\nproducing, marketing, selling and distributing chocolate, confectionery, confectionery-related snack and chocolate-related products (“Employer’s\nBusiness”). Executive acknowledges that due to the nature of his/her employment with Employer, he/she has and will have special access to, contact\nwith, and Confidential Information about, Employer’s Business and Business Relationships. Executive acknowledges that Employer has incurred\nconsiderable expense and invested considerable time and resources in developing its Confidential Information and Business Relationships, and that\nsuch Confidential Information and Business Relationships are critical to the success of Employer’s Business. Accordingly, both (i) during the term of\nhis/her employment with Employer, and (ii) for a period of twelve (12) months following the termination of his/her employment (whether voluntary\nor involuntary, and regardless of reason), Executive, except in the performance of his/her duties to Employer, shall not, in any geographic area where\nEmployer conducts business or where Employer’s products are sold, without the prior written consent of Employer’s Chief People Officer, CEO and\nthe Chair of the Compensation and Executive Organization Committee of Employer’s Board of Directors (provided that, if Executive is CEO, such\nconsent must be by the\nA-2\nBoard of Directors), directly or indirectly serve or act in a consulting, executive or managerial capacity, or engage in oversight of any person who\nserves or acts in a consulting, executive or managerial capacity, as an officer, director, employee, consultant, advisor, independent contractor, agent\nor representative, for the domestic or worldwide chocolate, confectionery, confectionery-related snack or chocolate-related businesses of any person\nor entity that is in competition with any of the aspects of Employer’s Business. For purposes of clarification, Executive will not be deemed to be\ninvolved in a business in competition with Employer’s Business, and accordingly this paragraph 2 will not be violated, by the Executive\n(A) providing services to a subsidiary, division or unit of an entity (a “parent company”) that engages, directly or indirectly, in any competitive\nbusiness described above, so long as Executive and the subsidiary, division or unit to which he/she is providing services do not engage in any such\ncompetitive business, or (B) serving in a consulting, executive or managerial capacity of a parent company that engages, directly or indirectly, in any\ncompetitive business described above, so long as the gross revenues from such competitive businesses constituted less than 10% of consolidated\nannual gross revenues for the parent company’s most recently completed fiscal year.\n3. Non-Solicitation; Non-Disparagement. Both (i) during the term of his/her employment by Employer, and (ii) for a period of twelve\n(12) months following the termination of his/her employment (whether voluntary or involuntary, and regardless of reason), Executive, except in the\nperformance of his/her duties to Employer, shall not directly or indirectly (including as an officer, director, employee, consultant, advisor, agent or\nrepresentative), for himself/herself or on behalf of any other person or entity:\n(a) for any purpose that is in competition with any of the aspects of Employer’s Business, solicit, take away or engage, or participate in\nsoliciting, taking away or engaging, any customers, suppliers, agents, licensees or licensors of Employer with whom Executive had contact while\nemployed by Employer, or about whom Employer had access to confidential information as a result of Executive’s employment by Employer; or\n(b) knowingly recruit or solicit, or participate in recruiting or soliciting, any of Employer’s employees, or communicate, except in the\ncase of a reference described in the last sentence of this paragraph, with any other person or entity about the nature, quality or quantity of work, or\nany special knowledge or personal characteristics, of any person employed by Employer. If Executive should wish to discuss possible employment\nwith any then-current employee of Employer during the period set forth above, Executive may request written permission to do so from the most\nsenior human resources officer of Employer who may, in his/her discretion, grant a written exception to the no solicitation covenant set forth\nimmediately above; provided, however, Executive shall not discuss any such employment possibility with any such employee prior to such\npermission. Notwithstanding the foregoing, the provisions of this paragraph shall not be violated by (i) general advertising or solicitation not\nspecifically targeted at employees of Employer, (ii) Executive serving as a reference, upon request, for any employee of Employer, or (iii) actions\ntaken by any person or entity with which Executive is associated if Executive is not personally involved in any manner in the matter and has not\nidentified such employee for recruiting or solicitation.\nA-3\nIn addition, both (i) during the term of his/her employment by Employer, and (ii) following the termination of his/her employment (whether\nvoluntary or involuntary, and regardless of reason), Executive shall not knowingly, willfully and with intent to harm Employer make any public\nstatements that disparage Employer, its employees, officers, directors, products or services, provided that, notwithstanding the foregoing, truthful\nstatements made in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in\nconnection with such proceedings), normal competitive-type statements, and statements made in the good faith performance of the Executive’s\nduties to Employer shall not constitute a violation of this clause.\n4. Violation of Paragraphs 1, 2 or 3. Executive acknowledges Employer’s valid and protectable interest in aligning the long-term interests of\nvalued employees with those of Employer by providing Executive an ownership interest in the Employer through the PSU program and other equity\nincentive programs and otherwise, and likewise acknowledges Employer’s valid and protectable interest in preventing former employees whose\ninterests become adverse to the Employer from maintaining an ownership or other interest in the Employer. Accordingly, Executive agrees that if\nhe/she violates any of paragraphs 1, 2 or 3 above (the date on which any such violation occurs is the “Date of Breach”), Employer may, in its sole\ndiscretion, in addition to any other remedies available to it at law (including without limitation monetary damages) or in equity (including without\nlimitation temporary, preliminary and/or permanent injunctive relief):\n(a) cancel any unvested portion of any and all PSU and RSU awards;\n(b) cancel any unexercised stock options;\n(c) require Executive to pay Employer the full value of any benefits received by Executive during the period twelve (12) months prior to\nExecutive’s last date of employment through the Date of Breach, from (i) PSUs, (ii) RSUs, and (iii) the exercise of any options;\n(d) cancel any unpaid benefits of Executive under the DB SERP and DC SERP; and/or\n(e) require Executive to pay Employer the full value of any benefits already received by Executive under the DB SERP or DC SERP\n(including for this purpose amounts that would have been received but for Executive’s election to defer such amounts under the Deferred\nCompensation Plan).\nMoreover, if Employer seeks temporary, preliminary and/or permanent injunctive relief for a violation or threatened violation of paragraphs 1,\n2 or 3 above, Executive hereby expressly consents to the entry of such relief against him/her by a court of competent jurisdiction. Executive further\nagrees that in the event he/she later believes that any provision hereof is not enforceable for any reason, Executive will not act in violation of any\nsuch provision until such time as a court of competent jurisdiction enters a final judgment with respect to enforceability.\n5. Entire Agreement. Executive acknowledges and agrees that (a) this Agreement includes the entire agreement and understanding between the\nparties with respect to the subject matter hereof, and may be amended, modified or changed only by a written instrument executed\n \nA4\nby Executive and Employer, and (b) violation of paragraphs 1, 2 or 3 hereof may cause Executive to lose the right to receive, or may obligate\nExecutive to repay to Employer, amounts awarded or accrued under various plans and programs of Employer as described herein and that, to the\nextent any effect of this Agreement upon such amounts may be inconsistent with the terms and conditions of such plans or programs as in effect on\nthe date hereof (including without limitation as set forth in the Long Term Incentive Program Participation Agreement to which Executive may be a\nparty), this Agreement shall constitute an amendment of such terms and conditions and Executive’s consent thereto. No provision of this Agreement\nmay be waived except by a writing executed and delivered by the party sought to be charged. Any such written waiver will be effective only with\nrespect to the event or circumstance described therein and not with respect to any other event or circumstance, unless such waiver expressly provides\nto the contrary.\n6. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nreference to principles of conflict of laws.\n(b) All notices and other communications hereunder shall be in writing; shall be delivered by hand delivery to the other party or mailed\nby registered or certified mail, return receipt requested, postage prepaid or by a nationally recognized courier service such as Federal Express; shall\nbe deemed delivered upon actual receipt; and shall be addressed as follows:\nIf to Employer:\nThe Hershey Company\n100 Crystal A Drive\nHershey, Pennsylvania 17033\nATTN: Chief People Officer\nIf to Executive:\nAt the address set forth with the signature below,\nor to such other address as either party shall have furnished to the other in writing in accordance herewith.\n(c) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective\nto the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.\nIN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date first set forth above.\nA-5\nA-6\nEXECUTIVE:\nPrint Name and Address:\nEMPLOYER:\nThe Hershey Company, a Delaware corporation\nBy:\nBurton H. Snyder\nSenior Vice President, General Counsel and Secretary	EX-10.4 5 dex104.htm EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nExhibit 10.4\nEXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nTHIS EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT (the "Agreement") is entered into as of\n2009 (the "Effective Date"), between The Hershey Company, a Delaware corporation together with its subsidiaries and affiliates and its\nand their respective successors and assigns ("Employer" or "Company"), and the undersigned officer of Employer ("Executive").\nWHEREAS, Executive currently serves, or is being hired or promoted to serve, as an officer of the Company subject to election or\nappointment by the Company's Board of Directors and eligible for participation in the performance stock unit ("PSU") program, the restricted stock\nunit ("RSU") program and in other equity grants and future cycles under the Company's Equity and Incentive Compensation Program ("E-grade\nOfficer").\nWHEREAS, Employer possesses certain valuable confidential, proprietary and/or trade secret information (collectively, "Confidential\nInformation," as further defined below) that gives Employer a competitive advantage.\nWHEREAS, Employer has developed and maintained, at substantial expense and over a considerable period of time, relationships with\ncustomers, suppliers, agents, licensees, licensors and others that likewise give Employer a competitive advantage ("Business Relationships").\nWHEREAS, as a result of Executive's past, future, and/or continued employment as an E-grade Officer, Executive has been and/or will be\nand/or will continue to be given access to, and will assist in, the development and maintenance of Employer's Confidential Information and Business\nRelationships, and it is the parties' intent to continue to safeguard such Confidential Information and Business Relationships both during and after\nthe term of Executive's employment with Employer.\nWHEREAS, Employer's reputation and present and future competitive position are dependent upon Employer's ability to protect its interests\nin such Confidential Information and Business Relationships.\nNOW, THEREFORE, in consideration of (i) Employer employing Executive as an E-grade Officer, (ii) Employer providing and continuing to\nprovide Executive access to such Confidential Information and Business Relationships, (iii) Employer making PSU awards, RSU awards and other\nequity grants to Executive under the next cycle and all future cycles for which Executive is eligible, (iv) if applicable, Employer permitting\nExecutive to participate in and be eligible to receive amounts in the future under defined benefit or defined contribution supplemental executive\nretirement plans (DB SERP or DC SERP, as applicable), and/or (v) other good and valuable consideration, the sufficiency and receipt of which are\nhereby acknowledged, Employer and Executive agree as follows:\n1. Non-Disclosure of Confidential Information. Executive acknowledges that due to the nature of his/her employment and the position of trust\nthat he/she holds or will hold with Employer, he/she will have special access to, learn, be provided with, and in some cases will prepare and create\nfor Employer, trade secrets and other confidential and proprietary information relating to Employer's business, including, but not limited\nto,\ninformation about Employer's manufacturing processes; manuals, recipes and ingredient percentages; engineering drawings; product and process\nresearch and development; new product information; cost information; supplier data; strategic business information; information related to\nEmployer's legal strategies or legal advice rendered to Employer; marketing, financial and business development information, plans, forecasts,\nreports and budgets; customer information; new product strategies, plans and project activities; and acquisition and divestiture strategies, plans and\nproject activities (collectively, "Confidential Information"). Executive acknowledges and agrees that Confidential Information, whether or not\nin\nwritten form, is the exclusive property of Employer, that it has been and will continue to be of critical importance to the business of Employer, and\nthat the disclosure of it to, or use of it by, competitors and others will cause Employer substantial and irreparable harm. Accordingly, Executive will\nnot, either during his/her employment or at any time after the termination (whether voluntary or involuntary, and regardless of reason) of such\nemployment with Employer, use, or disclose any Confidential Information relating to the business of Employer which is not generally available\nto\nthe public. Notwithstanding the foregoing provisions of this Paragraph 1, Executive may disclose or use any such information (i) when such\ndisclosure or use may be required or appropriate in the good faith judgment of Executive in the course of performing his/her duties to Employer\nand\nin accordance with Employer policies and procedures, (ii) when required by a court of law, by any governmental agency having supervisory\nauthority over Executive or the business of Employer, or by any administrative or legislative body (including a committee thereof) with apparent\njurisdiction, or (iii) with the prior written consent of Employer's Chief Executive Officer ("CEO") or Board of Directors ("Board") (provided\nthat,\nif\nExecutive is CEO, such consent must be by the Board). Notwithstanding anything herein to the contrary, Executive understands and agrees that\nhis/her obligations under this Agreement shall be in addition to, rather than in lieu of, any obligations Executive may have under any applicable\nstatute or at common law.\n2. Non-Competition. Executive acknowledges that Employer is engaged, domestically and worldwide, in the business of developing,\nproducing, marketing, selling and distributing chocolate, confectionery, confectionery-related snack and chocolate-related products ("Employer's\nBusiness"). Executive acknowledges that due to the nature of his/her employment with Employer, he/she has and will have special access to, contact\nwith, and Confidential Information about, Employer's Business and Business Relationships. Executive acknowledges that Employer has incurred\nconsiderable expense and invested considerable time and resources in developing its Confidential Information and Business Relationships, and that\nsuch Confidential Information and Business Relationships are critical to the success of Employer's Business. Accordingly, both (i) during the term of\nhis/her employment with Employer, and (ii) for a period of twelve (12) months following the termination of his/her employment (whether voluntary\nor\ninvoluntary, and regardless of reason), Executive, except in the performance of his/her duties to Employer, shall not, in any geographic area where\nEmployer conducts business or where Employer's products are sold, without the prior written consent of Employer's Chief People Officer, CEO and\nthe Chair of the Compensation and Executive Organization Committee of Employer's Board of Directors (provided that, if Executive is CEO, such\nconsent must be by the\nA-2\nBoard of Directors), directly or indirectly serve or act in a consulting, executive or managerial capacity, or engage in oversight of any person who\nserves or acts in a consulting, executive or managerial capacity, as an officer, director, employee, consultant, advisor, independent contractor, agent\nor representative, for the domestic or worldwide chocolate, confectionery, confectionery-related snack or chocolate-related businesses of any person\nor entity that is in competition with any of the aspects of Employer's Business. For purposes of clarification, Executive will not be deemed to be\ninvolved in a business in competition with Employer's Business, and accordingly this paragraph 2 will not be violated, by the Executive\n(A) providing services to a subsidiary, division or unit of an entity (a "parent company") that engages, directly or indirectly, in any competitive\nbusiness described above, so long as Executive and the subsidiary, division or unit to which he/she is providing services do not engage in any such\ncompetitive business, or (B) serving in a consulting, executive or managerial capacity of a parent company that engages, directly or indirectly, in\nany\ncompetitive business described above, so long as the gross revenues from such competitive businesses constituted less than 10% of consolidated\nannual gross revenues for the parent company's most recently completed fiscal year.\n3. Non-Solicitation; Non-Disparagement. Both (i) during the term of his/her employment by Employer, and (ii) for a period of twelve\n(12) months following the termination of his/her employment (whether voluntary or involuntary, and regardless of reason), Executive, except in the\nperformance of his/her duties to Employer, shall not directly or indirectly (including as an officer, director, employee, consultant, advisor, agent or\nrepresentative), for himself/herself or on behalf of any other person or entity:\n(a) for any purpose that is in competition with any of the aspects of Employer's Business, solicit, take away or engage, or participate\nin\nsoliciting, taking away or engaging, any customers, suppliers, agents, licensees or licensors of Employer with whom Executive had contact while\nemployed by Employer, or about whom Employer had access to confidential information as a result of Executive's employment by Employer; or\n(b) knowingly recruit or solicit, or participate in recruiting or soliciting, any of Employer's employees, or communicate, except in\nthe\ncase of a reference described in the last sentence of this paragraph, with any other person or entity about the nature, quality or quantity of work, or\nany special knowledge or personal characteristics, of any person employed by Employer. If Executive should wish to discuss possible employment\nwith\nany then-current employee of Employer during the period set forth above, Executive may request written permission to do so from the most\nsenior human resources officer of Employer who may, in his/her discretion, grant a written exception to the no solicitation covenant set forth\nimmediately above; provided, however, Executive shall not discuss any such employment possibility with any such employee prior to such\npermission. Notwithstanding the foregoing, the provisions of this paragraph shall not be violated by (i) general advertising or solicitation not\nspecifically targeted at employees of Employer, (ii) Executive serving as a reference, upon request, for any employee of Employer, or (iii) actions\ntaken by any person or entity with which Executive is associated if Executive is not personally involved in any manner in the matter and has not\nidentified such employee for recruiting or solicitation.\nA-3\nIn addition, both (i) during the term of his/her employment by Employer, and (ii) following the termination of his/her employment (whether\nvoluntary or involuntary, and regardless of reason), Executive shall not knowingly, willfully and with intent to harm Employer make any public\nstatements that disparage Employer, its employees, officers, directors, products or services, provided that, notwithstanding the foregoing, truthful\nstatements made in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in\nconnection with such proceedings), normal competitive-type statements, and statements made in the good faith performance of the Executive's\nduties to Employer shall not constitute a violation of this clause.\n4. Violation of Paragraphs 1, 2 or 3. Executive acknowledges Employer's valid and protectable interest in aligning the long-term interests of\nvalued employees with those of Employer by providing Executive an ownership interest in the Employer through the PSU program and other equity\nincentive programs and otherwise, and likewise acknowledges Employer's valid and protectable interest in preventing former employees whose\ninterests become adverse to the Employer from maintaining an ownership or other interest in the Employer. Accordingly, Executive agrees that\nif\nhe/she violates any of paragraphs 1, 2 or 3 above (the date on which any such violation occurs is the "Date of Breach"), Employer may, in its sole\ndiscretion, in addition to any other remedies available to it at law (including without limitation monetary damages) or in equity (including without\nlimitation temporary, preliminary and/or permanent injunctive relief):\n(a) cancel any unvested portion of any and all PSU and RSU awards;\n(b) cancel any unexercised stock options;\n(c) require Executive to pay Employer the full value of any benefits received by Executive during the period twelve (12) months prior to\nExecutive's last date of employment through the Date of Breach, from (i) PSUs, (ii) RSUs, and (iii) the exercise of any options;\n(d) cancel any unpaid benefits of Executive under the DB SERP and DC SERP; and/or\n(e) require Executive to pay Employer the full value of any benefits already received by Executive under the DB SERP or DC SERP\n(including for this purpose amounts that would have been received but for Executive's election to defer such amounts under the Deferred\nCompensation Plan).\nMoreover, if Employer seeks temporary, preliminary and/or permanent injunctive relief for a violation or threatened violation of paragraphs 1,\n2\nor 3 above, Executive hereby expressly consents to the entry of such relief against him/her by a court of competent jurisdiction. Executive further\nagrees that in the event he/she later believes that any provision hereof is not enforceable for any reason, Executive will not act in violation of any\nsuch provision until such time as a court of competent jurisdiction enters a final judgment with respect to enforceability.\n5. Entire Agreement. Executive acknowledges and agrees that (a) this Agreement includes the entire agreement and understanding between the\nparties with respect to the subject matter hereof, and may be amended, modified or changed only by a written instrument executed\nA-4\nby Executive and Employer, and (b) violation of paragraphs 1, 2 or 3 hereof may cause Executive to lose the right to receive, or may obligate\nExecutive to repay to Employer, amounts awarded or accrued under various plans and programs of Employer as described herein and that, to\nthe\nextent any effect of this Agreement upon such amounts may be inconsistent with the terms and conditions of such plans or programs as in effect on\nthe date hereof (including without limitation as set forth in the Long Term Incentive Program Participation Agreement to which Executive may be a\nparty), this Agreement shall constitute an amendment of such terms and conditions and Executive's consent thereto. No provision of this Agreement\nmay be waived except by a writing executed and delivered by the party sought to be charged. Any such written waiver will be effective only with\nrespect to the event or circumstance described therein and not with respect to any other event or circumstance, unless such waiver expressly provides\nto the contrary.\n6. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nreference to principles of conflict of laws.\n(b) All notices and other communications hereunder shall be in writing; shall be delivered by hand delivery to the other party or mailed\nby registered or certified mail, return receipt requested, postage prepaid or by a nationally recognized courier service such as Federal Express; shall\nbe deemed delivered upon actual receipt; and shall be addressed as follows:\nIf to Employer:\nThe Hershey Company\n100 Crystal A Drive\nHershey, Pennsylvania 17033\nATTN: Chief People Officer\nIf to Executive:\nAt the address set forth with the signature below,\nor to such other address as either party shall have furnished to the other in writing in accordance herewith.\n(c) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective\nto\nthe extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.\nIN\nWITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date first set forth above.\nA-5\nEXECUTIVE:\nPrint Name and Address:\nEMPLOYER:\nThe Hershey Company, a Delaware corporation\nBy:\nBurton H. Snyder\nSenior Vice President, General Counsel and Secretary\nA-6	EX-10.4 5 dex104.htm EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nExhibit 10.4\nEXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nTHIS EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT (the “Agreement”) is entered into as of\n, 2009 (the “Effective Date”), between The Hershey Company, a Delaware corporation together with its subsidiaries and affiliates and its\nand their respective successors and assigns (“Employer” or “Company”), and the undersigned officer of Employer (“Executive”).\nWHEREAS, Executive currently serves, or is being hired or promoted to serve, as an officer of the Company subject to election or\nappointment by the Company’s Board of Directors and eligible for participation in the performance stock unit (“PSU”) program, the restricted stock\nunit (“RSU”) program and in other equity grants and future cycles under the Company’s Equity and Incentive Compensation Program (“E-grade\nOfficer”).\nWHEREAS, Employer possesses certain valuable confidential, proprietary and/or trade secret information (collectively, “Confidential\nInformation,” as further defined below) that gives Employer a competitive advantage.\nWHEREAS, Employer has developed and maintained, at substantial expense and over a considerable period of time, relationships with\ncustomers, suppliers, agents, licensees, licensors and others that likewise give Employer a competitive advantage (“Business Relationships”).\nWHEREAS, as a result of Executive’s past, future, and/or continued employment as an E-grade Officer, Executive has been and/or will be\nand/or will continue to be given access to, and will assist in, the development and maintenance of Employer’s Confidential Information and Business\nRelationships, and it is the parties’ intent to continue to safeguard such Confidential Information and Business Relationships both during and after\nthe term of Executive’s employment with Employer.\nWHEREAS, Employer’s reputation and present and future competitive position are dependent upon Employer’s ability to protect its interests\nin such Confidential Information and Business Relationships.\nNOW, THEREFORE, in consideration of (i) Employer employing Executive as an E-grade Officer, (ii) Employer providing and continuing to\nprovide Executive access to such Confidential Information and Business Relationships, (iii) Employer making PSU awards, RSU awards and other\nequity grants to Executive under the next cycle and all future cycles for which Executive is eligible, (iv) if applicable, Employer permitting\nExecutive to participate in and be eligible to receive amounts in the future under defined benefit or defined contribution supplemental executive\nretirement plans (DB SERP or DC SERP, as applicable), and/or (v) other good and valuable consideration, the sufficiency and receipt of which are\nhereby acknowledged, Employer and Executive agree as follows:\n1. Non-Disclosure of Confidential Information. Executive acknowledges that due to the nature of his/her employment and the position of trust\nthat he/she holds or will hold with Employer, he/she will have special access to, learn, be provided with, and in some cases will prepare and create\nfor Employer, trade secrets and other confidential and proprietary information relating to Employer’s business, including, but not limited to,\ninformation about Employer’s manufacturing processes; manuals, recipes and ingredient percentages; engineering drawings; product and process\nresearch and development; new product information; cost information; supplier data; strategic business information; information related to\nEmployer’s legal strategies or legal advice rendered to Employer; marketing, financial and business development information, plans, forecasts,\nreports and budgets; customer information; new product strategies, plans and project activities; and acquisition and divestiture strategies, plans and\nproject activities (collectively, “Confidential Information”). Executive acknowledges and agrees that Confidential Information, whether or not in\nwritten form, is the exclusive property of Employer, that it has been and will continue to be of critical importance to the business of Employer, and\nthat the disclosure of it to, or use of it by, competitors and others will cause Employer substantial and irreparable harm. Accordingly, Executive will\nnot, either during his/her employment or at any time after the termination (whether voluntary or involuntary, and regardless of reason) of such\nemployment with Employer, use, or disclose any Confidential Information relating to the business of Employer which is not generally available to\nthe public. Notwithstanding the foregoing provisions of this Paragraph 1, Executive may disclose or use any such information (i) when such\ndisclosure or use may be required or appropriate in the good faith judgment of Executive in the course of performing his/her duties to Employer and\nin accordance with Employer policies and procedures, (ii) when required by a court of law, by any governmental agency having supervisory\nauthority over Executive or the business of Employer, or by any administrative or legislative body (including a committee thereof) with apparent\njurisdiction, or (iii) with the prior written consent of Employer’s Chief Executive Officer (“CEO”) or Board of Directors (“Board”) (provided that, if\nExecutive is CEO, such consent must be by the Board). Notwithstanding anything herein to the contrary, Executive understands and agrees that\nhis/her obligations under this Agreement shall be in addition to, rather than in lieu of, any obligations Executive may have under any applicable\nstatute or at common law.\n2. Non-Competition. Executive acknowledges that Employer is engaged, domestically and worldwide, in the business of developing,\nproducing, marketing, selling and distributing chocolate, confectionery, confectionery-related snack and chocolate-related products (“Employer’s\nBusiness”). Executive acknowledges that due to the nature of his/her employment with Employer, he/she has and will have special access to, contact\nwith, and Confidential Information about, Employer’s Business and Business Relationships. Executive acknowledges that Employer has incurred\nconsiderable expense and invested considerable time and resources in developing its Confidential Information and Business Relationships, and that\nsuch Confidential Information and Business Relationships are critical to the success of Employer’s Business. Accordingly, both (i) during the term of\nhis/her employment with Employer, and (ii) for a period of twelve (12) months following the termination of his/her employment (whether voluntary\nor involuntary, and regardless of reason), Executive, except in the performance of his/her duties to Employer, shall not, in any geographic area where\nEmployer conducts business or where Employer’s products are sold, without the prior written consent of Employer’s Chief People Officer, CEO and\nthe Chair of the Compensation and Executive Organization Committee of Employer’s Board of Directors (provided that, if Executive is CEO, such\nconsent must be by the\nA-2\nBoard of Directors), directly or indirectly serve or act in a consulting, executive or managerial capacity, or engage in oversight of any person who\nserves or acts in a consulting, executive or managerial capacity, as an officer, director, employee, consultant, advisor, independent contractor, agent\nor representative, for the domestic or worldwide chocolate, confectionery, confectionery-related snack or chocolate-related businesses of any person\nor entity that is in competition with any of the aspects of Employer’s Business. For purposes of clarification, Executive will not be deemed to be\ninvolved in a business in competition with Employer’s Business, and accordingly this paragraph 2 will not be violated, by the Executive\n(A) providing services to a subsidiary, division or unit of an entity (a “parent company”) that engages, directly or indirectly, in any competitive\nbusiness described above, so long as Executive and the subsidiary, division or unit to which he/she is providing services do not engage in any such\ncompetitive business, or (B) serving in a consulting, executive or managerial capacity of a parent company that engages, directly or indirectly, in any\ncompetitive business described above, so long as the gross revenues from such competitive businesses constituted less than 10% of consolidated\nannual gross revenues for the parent company’s most recently completed fiscal year.\n3. Non-Solicitation; Non-Disparagement. Both (i) during the term of his/her employment by Employer, and (ii) for a period of twelve\n(12) months following the termination of his/her employment (whether voluntary or involuntary, and regardless of reason), Executive, except in the\nperformance of his/her duties to Employer, shall not directly or indirectly (including as an officer, director, employee, consultant, advisor, agent or\nrepresentative), for himself/herself or on behalf of any other person or entity:\n(a) for any purpose that is in competition with any of the aspects of Employer’s Business, solicit, take away or engage, or participate in\nsoliciting, taking away or engaging, any customers, suppliers, agents, licensees or licensors of Employer with whom Executive had contact while\nemployed by Employer, or about whom Employer had access to confidential information as a result of Executive’s employment by Employer; or\n(b) knowingly recruit or solicit, or participate in recruiting or soliciting, any of Employer’s employees, or communicate, except in the\ncase of a reference described in the last sentence of this paragraph, with any other person or entity about the nature, quality or quantity of work, or\nany special knowledge or personal characteristics, of any person employed by Employer. If Executive should wish to discuss possible employment\nwith any then-current employee of Employer during the period set forth above, Executive may request written permission to do so from the most\nsenior human resources officer of Employer who may, in his/her discretion, grant a written exception to the no solicitation covenant set forth\nimmediately above; provided, however, Executive shall not discuss any such employment possibility with any such employee prior to such\npermission. Notwithstanding the foregoing, the provisions of this paragraph shall not be violated by (i) general advertising or solicitation not\nspecifically targeted at employees of Employer, (ii) Executive serving as a reference, upon request, for any employee of Employer, or (iii) actions\ntaken by any person or entity with which Executive is associated if Executive is not personally involved in any manner in the matter and has not\nidentified such employee for recruiting or solicitation.\nA-3\nIn addition, both (i) during the term of his/her employment by Employer, and (ii) following the termination of his/her employment (whether\nvoluntary or involuntary, and regardless of reason), Executive shall not knowingly, willfully and with intent to harm Employer make any public\nstatements that disparage Employer, its employees, officers, directors, products or services, provided that, notwithstanding the foregoing, truthful\nstatements made in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in\nconnection with such proceedings), normal competitive-type statements, and statements made in the good faith performance of the Executive’s\nduties to Employer shall not constitute a violation of this clause.\n4. Violation of Paragraphs 1, 2 or 3. Executive acknowledges Employer’s valid and protectable interest in aligning the long-term interests of\nvalued employees with those of Employer by providing Executive an ownership interest in the Employer through the PSU program and other equity\nincentive programs and otherwise, and likewise acknowledges Employer’s valid and protectable interest in preventing former employees whose\ninterests become adverse to the Employer from maintaining an ownership or other interest in the Employer. Accordingly, Executive agrees that if\nhe/she violates any of paragraphs 1, 2 or 3 above (the date on which any such violation occurs is the “Date of Breach”), Employer may, in its sole\ndiscretion, in addition to any other remedies available to it at law (including without limitation monetary damages) or in equity (including without\nlimitation temporary, preliminary and/or permanent injunctive relief):\n(a) cancel any unvested portion of any and all PSU and RSU awards;\n(b) cancel any unexercised stock options;\n(c) require Executive to pay Employer the full value of any benefits received by Executive during the period twelve (12) months prior to\nExecutive’s last date of employment through the Date of Breach, from (i) PSUs, (ii) RSUs, and (iii) the exercise of any options;\n(d) cancel any unpaid benefits of Executive under the DB SERP and DC SERP; and/or\n(e) require Executive to pay Employer the full value of any benefits already received by Executive under the DB SERP or DC SERP\n(including for this purpose amounts that would have been received but for Executive’s election to defer such amounts under the Deferred\nCompensation Plan).\nMoreover, if Employer seeks temporary, preliminary and/or permanent injunctive relief for a violation or threatened violation of paragraphs 1,\n2 or 3 above, Executive hereby expressly consents to the entry of such relief against him/her by a court of competent jurisdiction. Executive further\nagrees that in the event he/she later believes that any provision hereof is not enforceable for any reason, Executive will not act in violation of any\nsuch provision until such time as a court of competent jurisdiction enters a final judgment with respect to enforceability.\n5. Entire Agreement. Executive acknowledges and agrees that (a) this Agreement includes the entire agreement and understanding between the\nparties with respect to the subject matter hereof, and may be amended, modified or changed only by a written instrument executed\nA-4\nby Executive and Employer, and (b) violation of paragraphs 1, 2 or 3 hereof may cause Executive to lose the right to receive, or may obligate\nExecutive to repay to Employer, amounts awarded or accrued under various plans and programs of Employer as described herein and that, to the\nextent any effect of this Agreement upon such amounts may be inconsistent with the terms and conditions of such plans or programs as in effect on\nthe date hereof (including without limitation as set forth in the Long Term Incentive Program Participation Agreement to which Executive may be a\nparty), this Agreement shall constitute an amendment of such terms and conditions and Executive’s consent thereto. No provision of this Agreement\nmay be waived except by a writing executed and delivered by the party sought to be charged. Any such written waiver will be effective only with\nrespect to the event or circumstance described therein and not with respect to any other event or circumstance, unless such waiver expressly provides\nto the contrary.\n6. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nreference to principles of conflict of laws.\n(b) All notices and other communications hereunder shall be in writing; shall be delivered by hand delivery to the other party or mailed\nby registered or certified mail, return receipt requested, postage prepaid or by a nationally recognized courier service such as Federal Express; shall\nbe deemed delivered upon actual receipt; and shall be addressed as follows:\nIf to Employer:\nThe Hershey Company\n100 Crystal A Drive\nHershey, Pennsylvania 17033\nATTN: Chief People Officer\nIf to Executive:\nAt the address set forth with the signature below,\nor to such other address as either party shall have furnished to the other in writing in accordance herewith.\n(c) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective\nto the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.\nIN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date first set forth above.\nA-5\nEXECUTIVE:\nPrint Name and Address:\nEMPLOYER:\nThe Hershey Company, a Delaware corporation\nBy:\nBurton H. Snyder\nSenior Vice President, General Counsel and Secretary\nA-6
83a79ed689ef320a8f65e0268de91e10.pdf	effective_date jurisdiction party term	EX-10 .3 2 ctshexhibit10312312017.htm EXHIBIT 10.3\nEXHIBIT 10.3\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION\nASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment\nAgreement (this “Agreement”) is made as of the ___ day of [____] 2018 (the “Effective Date”) by and between Cognizant Technology Solutions\nCorporation, a Delaware corporation (the “Company” (where applicable, the definition of Company shall include the Company’s subsidiaries and\naffiliates and any successors or assigns)), and [_____] (“Employee”).\n[WHEREAS, Employee is currently employed by the Company as its [_____]; [and]]\nWHEREAS, the Company desires to [continue to] retain the services of Employee; [and]\n[WHEREAS, the Parties desire to amend and restate, in its entirety, the parties’ prior agreements pertaining to Employee’s\nemployment, and set forth the new terms and conditions of Employee’s employment by the Company.]\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and\nintending to be legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:\n1. Definitions.\n(a) “Annual Base Salary” shall mean the rate of annual base salary paid or payable to Employee by the Company (including\nauthorized deferrals and salary reduction amounts) immediately prior to Employee’s Termination Date.\n(b) “Board” shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) “Cause” shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee’s supervisor, (iii) failure by the Employee to observe\nmaterial policies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor\ninvolving moral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) “Disability” means Employee’s total and permanent disability as determined in accordance with the Company’s long-term\ndisability policy, whether or not Employee is covered by such policy.\n(f) “Good Reason” means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee’s authority, duties or responsibilities;\n(ii) A material diminution in Employee’s overall compensation package, which is not otherwise caused by an overall\npolicy by the Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee’s consent, in the principal place of work of the Employee to a location that is more\nthan 50 miles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement\nrelied upon and (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee’s employment under\nthe provision so indicated.\n(h) “Termination Date” shall mean the last day of Employee’s employment with the Company.\n(i) “Termination of Employment” shall mean the termination of Employee’s active employment relationship with the\nCompany.\n2. Employment. The Company hereby [employs][continues to employ] Employee, and Employee hereby [accepts][continues to\naccept] such employment, upon the terms and conditions set forth herein.\n3. Duties.\n(a) Position. Employee [shall be][continues to be] employed as [_____] and shall have the duties and responsibilities\nassigned by [_____] upon initial hire and from time to time thereafter. Employee shall perform faithfully and diligently all duties assigned to\nEmployee. The Company reserves the right to modify Employee’s position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [_____] or such other\nposition of a similar or more senior level.\n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee’s best efforts and\nentire business time and attention to the Company’s business during the term of Employee’s employment with the Company. Employee agrees\nthat, during the term of Employee’s employment, except as otherwise approved in writing by the Company, which approval the Company may in\nits absolute discretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction\nwith any person, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or\nentity other than the Company; provided that the foregoing is not intended to prevent an Employee from pursuing hobbies or participating in any\nother activity that is not to the detriment of the Company. Employee further acknowledges and agrees that Employee has access to the\nCompany’s Core Values & Code of Ethics (the “Code of Ethics”) located at www.cognizant.com, and Employee has read and understands the\nCode of Ethics and shall abide by all the terms of said Code of Ethics, as may be amended from time to time, and said Code of Ethics shall be\nincorporated into this Agreement. Employee will abide by all policies and decisions made by the Company, as well as all applicable federal, state\nand local laws, regulations or ordinances. Employee will act in the best interest of the Company at all times.\n(c) Work Location. Employee’s principal place of work shall be located in [_____], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee’s employment with the Company will be “at will,” meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, the Company shall\npay to Employee a base salary as most recently determined by the Compensation\n-2-\nCommittee of the Board and last communicated to the Employee, as may be modified by the Compensation Committee of the Board, payable in\naccordance with the normal payroll practices of the Company, less required deductions for state and federal withholding tax, social security and\nall other employment taxes and payroll deductions. In the event Employee’s employment under this Agreement is terminated by either Party, for\nany reason, Employee will earn the Annual Base Salary prorated to Employee’s Termination Date.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation\nCommittee of the Board in accordance with the bonus plan(s) provided to Employee by the Company, in accordance with the terms and\nconditions of such plan(s).\n(c) [Stock Options and Other Equity Awards. Except as set forth herein, this Agreement does not modify or change the\nexisting agreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an “Equity\nAward” and collectively, “Equity Awards”) previously issued to Employee.]\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to employees\nof the Company subject to the terms and conditions of the Company’s benefit plan documents. The Company reserves the right to change or\neliminate the fringe benefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance\nof Employee’s duties on behalf of the Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with the Company’s policies.\n8. Company Access. Employee agrees and consents that, during the term of Employee’s employment with the Company and\nthereafter, the Company may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and\ninternet access system provided by the Company with or without notice to Employee and that such review, audit, interception, access, or\ndisclosure may occur during or after working hours. Employee further consents and agrees that the Company may, at any time, access and review\nthe contents of all computers, computer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations\nthat are either on the Company’s premises or that are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee’s employment with the Company is involuntarily terminated by\nthe Company for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case\nEmployee’s employment termination becomes effective before any Change in Control (as defined in Section 9(d) below) has occurred following\nthe date of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does\nnot revoke the Release (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to one (1) times Employee’s Annual Base Salary, such amount to\nbe paid in regular installments in accordance with the Company’s normal payroll practices over a period of twelve (12) months, commencing on\nor as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n(ii) Employee shall receive a cash payment equal to one (1) times the amount of the Employee’s target annual bonus\nfor the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n-3-\n(iii) The Company shall, for a period of eighteen (18) months following the Employee’s Termination Date, pay the\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee\nand, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments\nspecified under this Section 9(a)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage\nterminates for any reason before the expiration of the eighteen (18)‐month period. All Company payments under this Section 9(a)(iii) to the\nEmployee can be used for any purpose and will be reported as taxable payments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company and would have vested had Employee remained employed by the Company during the twelve (12) month period following\nEmployee’s Termination Date shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such\nEquity Awards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on\nachievement of performance objective(s), to the extent that the applicable performance period has expired on or before Employee’s Termination\nDate, the performance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, the portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12)\nmonth period following Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such\nEquity Award shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(a)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary\nTermination that becomes effective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in\nControl following the date of this Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in\nlieu of, and not in addition to, the payments and benefits described in Section 9(a); provided that Employee executes and does not revoke the\nRelease (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to two (2) times Employee’s Annual Base Salary, such amount to\nbe paid in regular installments in accordance with the Company’s normal payroll practices over a period of twenty-four (24) months,\ncommencing on or as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s\nTermination Date.\n(ii) Employee shall receive a cash payment equal to two (2) times the amount of the Employee’s target annual bonus\nfor the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n(iii) The Company shall, for a period of eighteen (18) months following the date of Employee’s Termination of\nEmployment, pay Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical\nplan for Employee and, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable,\nEmployee’s spouse and dependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further\nthat the payments specified under this Section 9(b)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare\ncontinuation coverage terminates for any reason before the expiration of the eighteen (18)‐month\n-4-\nperiod. All Company payments under this Section 9(a)(iii) to the Employee can be used for any purpose and will be reported as taxable\npayments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity\nAwards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of\nperformance objectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, such Equity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of\nclosing of the Change in Control, make a good faith determination of the level of achievement of such pro-rated performance objective\nas of such closing date, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the\nlevel of achievement of the pro-rated performance objective, disregarding any future service conditions that otherwise would apply to\nsuch Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(c) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to\nthe other Party hereto given in accordance with Section 26 hereof.\n(d) Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall have the meaning\nset forth in the Company’s 2017 Incentive Award Plan, as amended from time to time or any successor plan in effect as of Employee’s\nTermination Date.\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the\nexpiration of the cure period and Employee’s actual termination as described below, such resignation shall be deemed an Involuntary Termination\nfor purposes of this Agreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set\nforth in this Agreement, including Section 13. Employee must provide written notice to the Company of his intent to terminate his employment\nfor Good Reason within thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have\na period of thirty (30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in\nEmployee’s notice of termination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period,\nEmployee must terminate his employment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the\ntermination to be considered a Good Reason termination under this Agreement.\n11. Termination Due to Death. If Employee’s employment with the Company is terminated due to death, Employee shall be entitled to\nthe payments and benefits described below, provided that Employee’s estate executes and does not revoke the Release (as defined in Section 13)\nand the Release first becomes effective:\n(a) Employee shall receive a cash payment equal to (1) times the amount of the Employee’s target annual bonus for the\nperformance year in which the Employee’s Termination Date occurs, pro-rated based on\n-5-\nthe portion of such year that has elapsed as of Employee’s Termination Date. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(b) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the\nCompany shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity Awards\nshall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(c) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(i) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future\ndates, such Equity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(ii) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to Employee’s\nTermination Date, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Termination\nDate, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of\nthe pro-rated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(d) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 11(d) are not conditioned upon the Release becoming effective unless the applicable\nbenefit plan or program provides otherwise.\n12. Termination Due to Disability or For Cause. If Employee’s employment with the Company is terminated by the Company due to\nDisability or for Cause, Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany; all other Company obligations to Employee will be extinguished as of the Termination Date.\n13. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9, 10 and 11, as applicable\n(except for those payments that are owed pursuant to applicable law and/or are specifically not conditioned upon the execution of a release by\nEmployee or Employee’s estate, as applicable), unless Employee or his estate, if applicable, executes, and does not revoke, the Company’s then\nstandard written general release (the “Release”) of any and all claims against the Company and all related parties with respect to all matters\narising out of Employee’s employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans\nor programs of the Company in which Employee participated and under which Employee has accrued and earned a benefit) or the termination\nthereof. The Company will provide Employee with the form of release agreement within seven days after Employee’s separation from service. To\nbe entitled to the severance or other benefits, Employee must execute and deliver to the Company the release agreement on or before the last day\nof the minimum required waiver consideration period provided under the Age Discrimination in Employment Act or other applicable law or such\nlater date specified in the release agreement. If Employee timely delivers an executed release agreement to the Company, and Employee does not\nrevoke the release agreement during the minimum revocation period required under applicable law, if any, the severance or other benefits shall be\npaid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to Section 32(b) of this Agreement. If,\nhowever, the period during which Employee has discretion to execute or revoke the release agreement straddles two calendar years, the cash\nseverance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of the two calendar years,\nregardless of within which calendar\n-6-\nyear Employee actually delivers the executed release agreement to the Company, subject to the release agreement first becoming effective.\nConsistent with section 409A of the Code, Employee may not, directly or indirectly, designate the calendar year of payment. Nothing in this\nSection 13 shall be construed to alter the terms of this Agreement that condition Employee’s entitlement to any severance or other benefits upon\nEmployee’s compliance with the restrictive covenants and any other terms and conditions specified in this Agreement.\n14. Other Payments. Any payments and benefits that become due under Sections 9, 10 and 11 hereof shall be in addition to (but not in\nduplication of) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except\nthat Employee shall not be entitled to any payments and benefits under the Company’s then current severance pay policies.\n15. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by\nseeking other employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation\nearned by other employment or otherwise; provided, however, that any obligation of the Company to make the payments described in Sections\n9(a)(iii) and 9(b)(iii) shall cease upon Employee becoming covered under a healthcare plan of another employer.\n16. Non-Exclusivity of Rights. Except as provided in Section 14, nothing in this Agreement shall prevent or limit Employee’s\n[continuing or] future participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of\nits subsidiaries or affiliates and for which Employee may qualify.\n17. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company’s obligation to make the\npayments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances,\nincluding, without limitation, any set-off, counterclaim, recoupment, defense or other right that the Company may have against Employee or\nothers.\n18. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold\nfrom any payments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or\ngovernmental rule or regulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due\nwith respect to any payment received under this Agreement, including, without limitation, any excise tax imposed by Section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the\ntermination of Employee’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or any other plan,\narrangement or agreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”), would constitute a\n“parachute payment” under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum\namount necessary to result in no portion of the Total Payments being non‐deductible to the Company pursuant to Section 280G of the Code or\nsubject to the excise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 18, including whether a reduction in Total Payments is\nrequired, the amount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting\nor law firm of recognized standing reasonably selected by the Company (the “Firm”), which may be, but will not be required to be, the\nCompany’s independent auditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the\nCompany within fifteen (15) days after receipt of a notice from either the Company or Employee that Employee may receive payments that may\nbe “parachute payments.” If the Firm determines that a reduction is required by this Section 18, the Contract Payments consisting of cash\nseverance shall be reduced to the extent necessary so that no portion of the Total Payments shall be subject to the excise tax imposed by section\n4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If additional\nContract Payments must be reduced pursuant to this Section 18 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the\n-7-\nContract Payments allocable to time-vested Equity Awards, to the extent necessary to satisfy the requirements of this Section 18.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the\npossession of Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in\nconnection with the preparation and issuance of the determinations and calculations contemplated by this Section 18. The fees and expenses of\nthe Firm for its services in connection with the determinations and calculations contemplated by this Section 18 shall be borne by the Company.\n19. Confidential Information. Employee agrees that Employee’s services to the Company [have been and will continue to be][will be]\nof a special, unique and extraordinary character, and that Employee’s position places Employee in a position of confidence and trust with the\nCompany’s customers and employees. Employee also recognizes that Employee’s position with the Company will give Employee substantial\naccess to Confidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to\nsuffer substantial and irreparable damage. Employee recognizes, therefore, that it is in the Company’s legitimate business interest to restrict\nEmployee’s use of Confidential Information for any purposes other than the discharge of Employee’s employment duties at the Company, and to\nlimit any potential appropriation of Confidential Information by Employee for the benefit of the Company’s competitors and to the detriment of\nthe Company. Accordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee’s employment, reveal to any person\nor entity any of the trade secrets or confidential information of the Company or of any third party that the Company is under an obligation to\nkeep confidential (including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-\nhow, techniques, systems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) (“Confidential\nInformation”), except as may be required in the ordinary course of performing Employee’s duties as an employee of the Company, and Employee\nshall keep secret all matters entrusted to Employee and shall not use or attempt to use any such information in any manner that may injure or\ncause loss or may be calculated to injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation,\nConfidential Information also includes any and all information, whether or not meeting the legal definition of a trade secret, concerning the\nCompany’s actual, planned or contemplated: (i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii)\npersonnel information; (iii) customer, vendor and supplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts,\nvolumes, characteristics, agreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business\noperations, internal structures and financial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company’s\nservices and products; (ix) proposed services and products; (x) contracts with other parties; (xi) performance characteristics of the Company’s\nproducts; and (xii) Inventions and Works (each as defined in Section 20). Confidential Information also includes any and all information of\nCompany’s clients and customers that is deemed confidential by such clients and customers (whether past, present or potential), including, but\nnot limited to: marketing tools, inventions, processes, contact lists, materials, software program code, logic diagrams, flow charts, procedural\ndiagrams, computer programming techniques and know how, maps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no\nfault of Employee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any\nconfidentiality obligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that\nEmployee is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt\nnotice of such request(s) so that the Company may seek an appropriate protective order or other appropriate remedy and/or waive compliance\nwith the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or the Company\ngrants a waiver hereunder, Employee may furnish that portion (and only that portion) of the Confidential Information that Employee is legally\n-8-\ncompelled to disclose and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any\nConfidential Information so furnished.\n(c) Further, Employee agrees that during Employee’s employment Employee shall not take, use or permit to be used any\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any\nnature relating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the\nbenefit of the Company. Employee further agrees that Employee shall not, after the termination of Employee’s employment, use or permit to be\nused any such notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other\nmaterials, it being agreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately\nupon the termination of Employee’s employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all\ncopies thereof, to the Company, at its main office.\n(d) Employee agrees that upon the termination of Employee’s employment with the Company, Employee will not take or\nretain without written authorization any documents, files or other property of the Company, and Employee will return promptly to the Company\nany such documents, files or property in Employee’s possession or custody, including any copies thereof maintained in any medium or format.\nEmployee recognizes that all documents, files and property that Employee has received and will receive from the Company, including but not\nlimited to scientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of\ndocuments relating to benefits to which Employee might be entitled following the termination of Employee’s employment with the Company),\nare for the exclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee\nhas no claim or right to the continued use, possession or custody of such documents, files or property following the termination of Employee’s\nemployment with the Company.\n(e) Employee acknowledges that the Company has provided Employee with the following notice of immunity rights in\ncompliance with the requirements of the Defend Trade Secrets Act of 2016: (i) Employee shall not be held criminally or civilly liable under any\nU.S. federal or state trade secret law for the disclosure of Confidential Information that is made in confidence to a U.S. federal, state or local\ngovernment official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; (ii) Employee shall not be\nheld criminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of Confidential Information that is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (iii) if Employee files a lawsuit for\nretaliation by the Company for reporting a suspected violation of law, Employee may disclose the Confidential Information to Employee’s\nattorney and use the Confidential Information in the court proceeding, if Employee files any document containing the Confidential Information\nunder seal, and does not disclose the Confidential Information, except pursuant to court order. However, under no circumstance will Employee be\nauthorized to disclose any information covered by attorney-client privilege or attorney work product of the Company without prior written\nconsent of the Company’s General Counsel or other officer designated by the Company. Notwithstanding anything to the contrary contained\nherein, no provision of this Agreement shall be interpreted so as to impede Employee (or any other individual) from reporting possible violations\nof U.S. federal law or regulation to any governmental agency or entity, including but not limited to the U.S. Department of Justice, the U.S.\nSecurities and Exchange Commission, the U.S. Congress, and any agency Inspector General of the U.S. government, or making other disclosures\nunder the whistleblower provisions of U.S. federal law or regulation. Employee does not need the prior authorization of the Company to make\nany such reports or disclosures and Employee shall not be not required to notify the Company that such reports or disclosures have been made.\n20. Intellectual Property.\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as\ndefined below) that are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is\nemployed by the Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and\ncurrent written records of all\n-9-\nInventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program code,\nprocedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, along with all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that “Inventions,” is defined in this Agreement to include any and all new or useful\nideas, developments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual\nproperty, whether patentable or not (including without limitation any technology, computer programs, software, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter,\nformula or technique), and all know-how related thereto, that Employee conceives, makes, reduces to practice, or develops, solely or jointly with\nothers (i) that relate to the actual or contemplated business, work or activities of the Company, (ii) that result from or are suggested by any work\nwhich Employee [has done or] may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s\nemployment by the Company, or (iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee\nwas paid by the Company, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the\nCompany.\n(c) The Company and Employee agree that “Works” is defined in this Agreement to include any and all materials for which\ncopyright protection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask\nworks, artistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code,\nlogic diagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other\naudio-visual works that Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) that relate to the actual or\ncontemplated business, work or activities of the Company, (ii) that result from or are suggested by any work which Employee has done or may\ndo on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by the Company, or\n(iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with\nthe use of premises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the\nrights, titles and interests in and to any and all such Inventions and Works that Employee [has or] may acquire in such Inventions or Works that\nare conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the\nCompany and for a period of six (6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights,\ntrademarks and other intellectual property rights in connection therewith, and agrees to take all such actions as may be requested by the Company\nduring Employee’s employment with the Company and at any time thereafter, with respect to any such Inventions or Works to confirm or\nevidence such assignment, transfer, conveyance or ownership, and to assist in the Company’s maintenance, enforcement, license, assignment,\ntransfer, or conveyance of rights in respect of the Inventions or Works.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee\nagrees to execute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence\nand do any and all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment,\ntransfer and conveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents,\ntrademarks, copyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or\nto obtain any extension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right.\nBy way of further example and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of\ninitiating, maintaining or defending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other\nproceedings as requested by the Company. In the event that the Company may be unable, for\n-10-\nany reason whatsoever, after reasonable effort, to secure Employee’s signature on any patent, copyright, trademark or other intellectual property\napplication or other papers, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents, as\nEmployee’s agent and attorney-in-fact to act for and on behalf of Employee to execute, acknowledge, swear to, seal and deliver to the Company\nand to file any such application or applications or other papers, and to do all other lawfully permitted acts to further the provisions of this Section\n20 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the\nprovisions of Sections 20(d) and 20(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional\ncompensation beyond that paid to Employee for the period of time that he is employed by the Company, which compensation, along with the\nCompany’s understandings set forth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises\nand obligations set forth in this Agreement.\n(g) Employee expressly acknowledges and states that all Works that are made by Employee (solely or jointly with others) are\nbeing created at the instance of the Company and are “works made for hire,” as that term is defined in the Copyright Act of 1976, 17 USC § 101.\nIn the event that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent\njurisdiction not to be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to the\nCompany of all Employee’s right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world,\nincluding the right to prepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not,\nthat have been conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee’s employment by the\nCompany; provided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or that is\nthe subject of a contract preventing Employee’s disclosure of the information to the Company.\n21. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee’s employment with the Company, the Company will provide Employee Confidential\nInformation, which Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company’s trade secrets\nand with other Confidential Information concerning the Company and that Employee’s services shall be of special, unique and extraordinary\nvalue to the Company, and therefore, the Employee agrees that some restrictions on Employee’s activities during and after Employee’s\nemployment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee’s employment by the Company and, if Employee’s employment with the Company\nterminates for any reason, for a period of one (1) year thereafter (“Covenant Period”), except with the written consent of the Board, Employee\nshall not directly or indirectly, own, control, finance or participate in the ownership, control or financing of, or be employed by or provide\nservices to, any Competitor. For the purposes of this Agreement, a “Competitor” is defined as a person, business or enterprise (including\ndivisions of persons, businesses and enterprises) that directly or indirectly engages in services of the type conducted, authorized, offered or\nprovided by the Company (the “Restricted Business”) in the Territory. Without limiting the foregoing, for purposes of this Agreement, each\nentity listed on Attachment B, as shall be modified from time to time by the Company upon written notice to Employee, shall constitute a\n“Competitor.” For purposes of this Agreement, “Territory” is defined as the territory or territories within which Employee actually worked, or in\nrespect of which Employee was involved in providing services, during the twelve (12) month period prior to Employee’s Termination Date.\nNotwithstanding the foregoing, nothing herein shall prevent Employee from providing services to, or being employed by, or owning, controlling,\nfinancing or participating in the ownership, control or financing of, any diversified entity or other person (other than the entities listed on\nAttachment B) that is engaged in the Restricted Business, so long as (i) the Restricted Business does not constitute greater than 25% of the\naggregate revenue of such diversified entity or other person and (ii) Employee is not employed within and does not have\n-11-\ninvolvement with business development or business strategy with respect to the Restricted Business. In further consideration for the Company’s\npromises herein, Employee agrees that during the Covenant Period, Employee will not directly or indirectly (i) solicit, entice, induce, cause,\nencourage or recruit any part-time or full-time employee, representative, consultant, customer, subscriber or supplier of the Company or its\nsubsidiaries or affiliates to work for, provide services to or do business with a third party other than the Company or its subsidiaries or affiliates\nor engage in any activity that would cause any employee, representative, consultant, customer, subscriber or supplier to violate any agreement\nwith the Company or its subsidiaries or affiliates or otherwise terminate or change its relationship with the Company or its subsidiaries or\naffiliates or (ii) hire any current or former part-time or full-time employee, representative or consultant of the Company or its Affiliates who was\nemployed or engaged by the Company or its subsidiaries or affiliates at any time during the twelve (12) month period prior to Employee’s\nTermination Date or who thereafter becomes employed or engaged by the Company or its subsidiaries or affiliates.\n(b) The foregoing restrictions shall not be construed to prohibit Employee’s ownership of less than one percent (1%) of any\nclass of securities of any corporation that is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the\nSecurities Exchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any\ngroup of persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees\nany of its financial obligations, otherwise takes any part in its business, other than exercising Employee’s rights as a stockholder, or seeks to do\nany of the foregoing.\n22. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and\nwill not be constrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary\ninformation arising out of any prior business relationship or contract that, in Employee’s best judgment would be utilized in connection with\nEmployee’s employment with the Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary\ninformation to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into\nthis Agreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) Employee\nhas been advised by the Company to consult Employee’s own legal counsel in respect of this Agreement, and Employee has had full opportunity,\nprior to execution of this Agreement, to review thoroughly this Agreement with Employee’s counsel; (iii) the restrictions imposed on Employee\nby this Agreement are fair, reasonable and proper and required for the protection of the Company’s business interests, particularly its investments\nin Employee (e.g ., Employee’s job knowledge and skills), its Confidential Information, as well as the goodwill developed, and its business\nrelationships, with its clients, customers and prospective clients and customers; (iv) the Company would not have entered into this Agreement in\nthe absence of such restrictions, and that any violation of any provision of Sections 19, 20 or 21 hereof will result in irreparable injury to the\nCompany; and (v) the restrictions imposed on Employee by this Agreement, particularly, the post-termination restrictions, shall not preclude\nEmployee from earning a living or engaging in Employee’s profession or trade, or pursuing a career or a business, in each case at the same\ngeneral level of economic benefit as is currently the case.\n23. Consequences of Breach of Covenants; Equitable Relief.\n(a) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity\nof proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 19,\n20, and 21 hereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The\nperiod of the injunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of\nSections 19, 20, and 21 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable\nlaw in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other\nlimitations permitted by applicable law.\n-12-\n(b) Notwithstanding anything to the contrary herein, Employee acknowledges and agrees that the severance payments and\nbenefits provided herein are being provided by the Company to Employee, among other things, as additional consideration and solely for\nEmployee’s agreement with and adherence to the post-employment restrictive covenants in Section 21 (a)-(c) and Employee’s other promises,\ncovenants, commitments and obligations in this Agreement (including the releases granted in Section 13), the adequacy and sufficiency of which\nEmployee expressly acknowledges. Employee agrees that should the Company, in its sole discretion, deem Employee to be in violation of any\nprovision(s) in said Section 21 (a)-(c), the Company may immediately cease payment of all or any portion of the severance payments and\nbenefits provided hereunder. Employee acknowledges that the severance payments and benefits provided for herein are in addition to anything of\nvalue to which Employee was already entitled.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section\n19, 20, and 21 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or\nother equitable relief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction\nor will not accept jurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court\nin any such suit, action or proceeding, and (iii) waives any objection that Employee may have to the laying of venue of any such suit, action or\nproceeding in any such court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other\npapers in a manner permitted by the notice provisions of Section 26 hereof.\n24. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee’s employment with the\nCompany; provided, however, that after the termination of Employee’s employment during the term of this Agreement, this Agreement shall\nremain in effect until all of the obligations of the Parties hereunder are satisfied or have expired.\n25. Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance\nsatisfactory to Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance\nwith the terms hereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the\nsame extent that the Company would be required to perform if no such succession or successions had taken place. Failure of the Company to\nobtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the\nCompany shall mean the Company as hereinbefore defined and any such successor or successors to its business and/or assets, jointly and\nseverally.\n26. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith\nshall be in writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express\ncourier service, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n[__________]\n-13-\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the\nlast address of the Company or to any successor pursuant to this Section 26 shall be deemed sufficient for the purposes hereof. Any such notice\nshall be deemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S.\nPostal Service in the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n27. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving\neffect to any conflict of laws provisions.\n28. Contents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Code of Ethics, supersedes all prior agreements with respect to the subject matter hereof,\nsets forth the entire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended\nor terminated except upon written amendment executed by Employee and executed on the Company’s behalf by a duly authorized officer, except\nfor revisions or additions to Attachment B, which may be unilaterally modified by the Company upon written notice to Employee[; provided,\nhowever, that this Agreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award\nagreements regarding stock options, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance\nunits or other stock-based awards issued to Employee prior to the effective date of this Agreement]. The provisions of this Agreement may\nprovide for payments to Employee under certain compensation or bonus plans under circumstances where such plans would not provide for\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in\nsuch plans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany’s Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in\nthe imposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company,\nor as changing or modifying the “at will” nature of Employee’s employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by\nthe respective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee’s Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devises, legates or other designees or, if\nthere is no such designee, to Employee’s estate.\n29. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted,\nand the remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n30. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other\nright or remedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given\nhereunder or now or hereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or\nexisting at law or in equity shall be construed as a waiver thereof.\n31. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of\nwhich is an original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the\nother counterparts.\n- 14-\n32. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of Section 409A of the Code to the extent\napplicable or to be exempt from Section 409A of the Code pursuant to the “short-term deferral exception” under Treas. Reg. section 1.409A-1(b)\n(4) or the “separation pay exception” under Treas. Reg. Section 1.409A-1(b)(9)(iii), and shall in all respects be administered and construed in\naccordance with Section 409A of the Code. If any payment or benefit hereunder cannot be provided or made at the time specified herein without\nincurring sanctions on Employee under Section 409A of the Code, then such payment or benefit shall be provided in full at the earliest time\nthereafter when such sanctions will not be imposed. For purposes of Section 409A of the Code, all payments to be made upon a Termination of\nEmployment under this Agreement may only be made upon a “separation from service” (within the meaning of such term under Section 409A of\nthe Code), each payment made under this Agreement shall be treated as a separate payment, the right to a series of installment payments under\nthis Agreement is to be treated as a right to a series of separate payments, and if a payment is not made by the designated payment date under this\nAgreement, the payment shall be made by December 31 of the calendar year in which the designated date occurs. To the extent that any payment\nprovided for hereunder would be subject to additional tax under Section 409A of the Code, or would cause the administration of this Agreement\nto fail to satisfy the requirements of Section 409A of the Code, such provision shall be deemed null and void to the extent permitted by\napplicable law, and, to the extent applicable, any such amount shall be payable in accordance with Section 32(b). In no event shall the Employee,\ndirectly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and form of\npayment of any amounts or payments of “deferred compensation” (as defined under Treas. Reg. Section 1.409A-1(b)(1), after giving effect to the\nexemptions in Treas. Reg. Sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement between\nthe Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b) Payment Delay. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any\npayments or benefits otherwise payable under this Agreement as a result of Employee’s “separation from service” with the Company to prevent\nthe imposition of any accelerated or additional tax under Section 409A of the Code, then the Company will postpone the commencement of the\npayment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to\nEmployee) that are not otherwise paid within the “short-term deferral exception” under Treas. Reg. Section 1.409A-1(b)(4) and the “separation\npay exception” under Treas. Reg. Section 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following\nEmployee’s “separation of service” with the Company. If any payments are postponed due to such requirements, such postponed amounts will be\npaid to Employee in a lump sum on the first payroll date that occurs after the date that is six months following Employee’s “separation of\nservice” with the Company. If Employee dies during the postponement period prior to the payment of the postponed amount, the amounts\nwithheld on account of Section 409A of the Code shall be paid to the personal representative of Employee’s estate within sixty (60) days after the\ndate of the Employee’s death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the\nrequirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred\nduring Employee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for\nreimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement\nof an eligible expense will be made on or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the\nright to reimbursement is not subject to liquidation or exchange for another benefit.\n33. Recoupment Policy. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any\nclawback or recoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without\nnotice (the “Recoupment Policy”) to further the Company’s interests in enhancing its corporate governance practices and/or to comply with\napplicable law, rules or regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on\nwhich shares of the common stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the\nCompany may seek to recoup all or part of any severance payments, bonus or other\n- 15-\nincentive compensation paid to certain officers and former officers, including Equity Awards, in the event that the Company is required to restate\nits financial statements. In consideration of the [continued] benefits to be received from the Company (or a subsidiary) and the right to participate\nin, and receive future awards under, the Company’s cash and equity-based incentive programs, Employee hereby acknowledges, understands and\nagrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards,\npaid or awarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent\nprovided in the Recoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this\nAgreement or hereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy\neven if the Recoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms,\nand Employee promptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the\nRecoupment Policy for repayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity\nAwards, subject to the Recoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and\nEmployee is not waiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment\nPolicy, other than (i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards\nand (ii) waiving any claim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n-16-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above\nwritten.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nName:\nTitle:\n[NAME OF EXECUTIVE]\n- 17-\nATTACHMENT A\n1.\nThe following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed,\nauthored, created, drawn or written by me alone or jointly with others prior to my engagement by the Company.\n☐ None.\n_______________________________________________________________________\n_______________________________________________________________________\n_______________________________________________________________________\n_______________________________________________________________________\n_______________________________________________________________________\n☐\nDue to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be\nincluded on the above-described list.\n☐ Additional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n-18-\nATTACHMENT B – List of Direct Competitors\n1.\nInternational Business Machines Corporation\n2.\nAccenture LTD\n3.\nCap Gemini S.A.\n4.\nTata Consultancy Services\n5.\nInfosys Limited\n6.\nWipro Limited\n7.\nHCL Technologies Limited\n8.\nDXC Technology Company\n-19-	EX-10.3 2 ctshexhibit10312312017.htm EXHIBIT 10.3\nEXHIBIT 10.3\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION\nASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment\nAgreement (this “Agreement”) is made as of the ___ day of [ 12018 (the “Effective Date”) by and between Cognizant Technology Solutions\nCorporation, a Delaware corporation (the “Company” (where applicable, the definition of Company shall include the Company’s subsidiaries and\naffiliates and any successors or assigns)), and [ 1 (“Employee”).\n \n[WHEREAS, Employee is currently employed by the Company as its [ ]; [and]]\nWHEREAS, the Company desires to [continue to] retain the services of Employee; [and]\n[WHEREAS, the Parties desire to amend and restate, in its entirety, the parties’ prior agreements pertaining to Employee’s\nemployment, and set forth the new terms and conditions of Employee’s employment by the Company.]\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and\nintending to be legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:\n1. Definitions.\n(a) “Annual Base Salary” shall mean the rate of annual base salary paid or payable to Employee by the Company (including\nauthorized deferrals and salary reduction amounts) immediately prior to Employee’s Termination Date.\n(b) “Board” shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) “Cause” shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee’s supervisor, (iii) failure by the Employee to observe\nmaterial policies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor\ninvolving moral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) “Disability” means Employee’s total and permanent disability as determined in accordance with the Company’s long-term\ndisability policy, whether or not Employee is covered by such policy.\n() “Good Reason” means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee’s authority, duties or responsibilities;\n(i) A material diminution in Employee’s overall compensation package, which is not otherwise caused by an overall\npolicy by the Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee’s consent, in the principal place of work of the Employee to a location that is more\nthan 50 miles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement\nrelied upon and (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee’s employment under\nthe provision so indicated.\n(h) “Termination Date” shall mean the last day of Employee’s employment with the Company.\n \n(i) “Termination of Employment” shall mean the termination of Employee’s active employment relationship with the\nCompany.\n2. Employment. The Company hereby [employs][continues to employ] Employee, and Employee hereby [accepts][continues to\naccept] such employment, upon the terms and conditions set forth herein.\n3. Duties.\n(a) Position. Employee [shall be][continues to be] employed as [ ] and shall have the duties and responsibilities\nassigned by [ ] upon initial hire and from time to time thereafter. Employee shall perform faithfully and diligently all duties assigned to\nEmployee. The Company reserves the right to modify Employee’s position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [ ] or such other\nposition of a similar or more senior level.\n \n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee’s best efforts and\nentire business time and attention to the Company’s business during the term of Employee’s employment with the Company. Employee agrees\nthat, during the term of Employee’s employment, except as otherwise approved in writing by the Company, which approval the Company may in\nits absolute discretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction\nwith any person, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or\nentity other than the Company; provided that the foregoing is not intended to prevent an Employee from pursuing hobbies or participating in any\nother activity that is not to the detriment of the Company. Employee further acknowledges and agrees that Employee has access to the\nCompany’s Core Values & Code of Ethics (the “Code of Ethics”) located at www.cognizant.com, and Employee has read and understands the\nCode of Ethics and shall abide by all the terms of said Code of Ethics, as may be amended from time to time, and said Code of Ethics shall be\nincorporated into this Agreement. Employee will abide by all policies and decisions made by the Company, as well as all applicable federal, state\nand local laws, regulations or ordinances. Employee will act in the best interest of the Company at all times.\n(c) Work Location. Employee’s principal place of work shall be located in [ ], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee’s employment with the Company will be “at will,” meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, the Company shall\npay to Employee a base salary as most recently determined by the Compensation\n-\nCommittee of the Board and last communicated to the Employee, as may be modified by the Compensation Committee of the Board, payable in\naccordance with the normal payroll practices of the Company, less required deductions for state and federal withholding tax, social security and\nall other employment taxes and payroll deductions. In the event Employee’s employment under this Agreement is terminated by either Party, for\nany reason, Employee will earn the Annual Base Salary prorated to Employee’s Termination Date.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation\nCommittee of the Board in accordance with the bonus plan(s) provided to Employee by the Company, in accordance with the terms and\nconditions of such plan(s).\n(c) [Stock Options and Other Equity Awards. Except as set forth herein, this Agreement does not modify or change the\nexisting agreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an “Equity\nAward” and collectively, “Equity Awards”) previously issued to Employee.]\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to employees\nof the Company subject to the terms and conditions of the Company’s benefit plan documents. The Company reserves the right to change or\neliminate the fringe benefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance\nof Employee’s duties on behalf of the Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with the Company’s policies.\n \n8. Company Access. Employee agrees and consents that, during the term of Employee’s employment with the Company and\nthereafter, the Company may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and\ninternet access system provided by the Company with or without notice to Employee and that such review, audit, interception, access, or\ndisclosure may occur during or after working hours. Employee further consents and agrees that the Company may, at any time, access and review\nthe contents of all computers, computer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations\nthat are either on the Company’s premises or that are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee’s employment with the Company is involuntarily terminated by\nthe Company for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case\nEmployee’s employment termination becomes effective before any Change in Control (as defined in Section 9(d) below) has occurred following\nthe date of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does\nnot revoke the Release (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to one (1) times Employee’s Annual Base Salary, such amount to\nbe paid in regular installments in accordance with the Company’s normal payroll practices over a period of twelve (12) months, commencing on\nor as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n(ii) Employee shall receive a cash payment equal to one (1) times the amount of the Employee’s target annual bonus\nfor the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n_3-\n(iii) The Company shall, for a period of eighteen (18) months following the Employee’s Termination Date, pay the\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee\nand, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments\nspecified under this Section 9(a)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage\nterminates for any reason before the expiration of the eighteen (18)-month period. All Company payments under this Section 9(a)(iii) to the\nEmployee can be used for any purpose and will be reported as taxable payments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company and would have vested had Employee remained employed by the Company during the twelve (12) month period following\nEmployee’s Termination Date shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such\nEquity Awards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on\nachievement of performance objective(s), to the extent that the applicable performance period has expired on or before Employee’s Termination\nDate, the performance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, the portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12)\nmonth period following Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such\nEquity Award shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(a)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary\nTermination that becomes effective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in\nControl following the date of this Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in\nlieu of, and not in addition to, the payments and benefits described in Section 9(a); provided that Employee executes and does not revoke the\nRelease (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to two (2) times Employee’s Annual Base Salary, such amount to\nbe paid in regular installments in accordance with the Company’s normal payroll practices over a period of twenty-four (24) months,\ncommencing on or as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s\nTermination Date.\n(ii) Employee shall receive a cash payment equal to two (2) times the amount of the Employee’s target annual bonus\nfor the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n(iii) The Company shall, for a period of eighteen (18) months following the date of Employee’s Termination of\nEmployment, pay Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical\nplan for Employee and, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable,\nEmployee’s spouse and dependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further\nthat the payments specified under this Section 9(b)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare\ncontinuation coverage terminates for any reason before the expiration of the eighteen (18)-month\n4-\nperiod. All Company payments under this Section 9(a)(iii) to the Employee can be used for any purpose and will be reported as taxable\npayments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity\nAwards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of\nperformance objectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, such Equity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of\nclosing of the Change in Control, make a good faith determination of the level of achievement of such pro-rated performance objective\nas of such closing date, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the\nlevel of achievement of the pro-rated performance objective, disregarding any future service conditions that otherwise would apply to\nsuch Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(c) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to\nthe other Party hereto given in accordance with Section 26 hereof.\n(d) Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall have the meaning\nset forth in the Company’s 2017 Incentive Award Plan, as amended from time to time or any successor plan in effect as of Employee’s\nTermination Date.\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the\nexpiration of the cure period and Employee’s actual termination as described below, such resignation shall be deemed an Involuntary Termination\nfor purposes of this Agreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set\nforth in this Agreement, including Section 13. Employee must provide written notice to the Company of his intent to terminate his employment\nfor Good Reason within thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have\na period of thirty (30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in\nEmployee’s notice of termination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period,\nEmployee must terminate his employment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the\ntermination to be considered a Good Reason termination under this Agreement.\n11. Termination Due to Death. If Employee’s employment with the Company is terminated due to death, Employee shall be entitled to\nthe payments and benefits described below, provided that Employee’s estate executes and does not revoke the Release (as defined in Section 13)\nand the Release first becomes effective:\n(a) Employee shall receive a cash payment equal to (1) times the amount of the Employee’s target annual bonus for the\nperformance year in which the Employee’s Termination Date occurs, pro-rated based on\n-5-\nthe portion of such year that has elapsed as of Employee’s Termination Date. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(b) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the\nCompany shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity Awards\nshall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(c) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(i) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future\ndates, such Equity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(ii) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to Employee’s\nTermination Date, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Termination\nDate, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of\nthe pro-rated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(d) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 11(d) are not conditioned upon the Release becoming effective unless the applicable\nbenefit plan or program provides otherwise.\n12. Termination Due to Disability or For Cause. If Employee’s employment with the Company is terminated by the Company due to\nDisability or for Cause, Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany; all other Company obligations to Employee will be extinguished as of the Termination Date.\n13. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9, 10 and 11, as applicable\n(except for those payments that are owed pursuant to applicable law and/or are specifically not conditioned upon the execution of a release by\nEmployee or Employee’s estate, as applicable), unless Employee or his estate, if applicable, executes, and does not revoke, the Company’s then\nstandard written general release (the “Release”) of any and all claims against the Company and all related parties with respect to all matters\narising out of Employee’s employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans\nor programs of the Company in which Employee participated and under which Employee has accrued and earned a benefit) or the termination\nthereof. The Company will provide Employee with the form of release agreement within seven days after Employee’s separation from service. To\nbe entitled to the severance or other benefits, Employee must execute and deliver to the Company the release agreement on or before the last day\nof the minimum required waiver consideration period provided under the Age Discrimination in Employment Act or other applicable law or such\nlater date specified in the release agreement. If Employee timely delivers an executed release agreement to the Company, and Employee does not\nrevoke the release agreement during the minimum revocation period required under applicable law, if any, the severance or other benefits shall be\npaid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to Section 32(b) of this Agreement. If,\nhowever, the period during which Employee has discretion to execute or revoke the release agreement straddles two calendar years, the cash\nseverance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of the two calendar years,\nregardless of within which calendar\nyear Employee actually delivers the executed release agreement to the Company, subject to the release agreement first becoming effective.\nConsistent with section 409A of the Code, Employee may not, directly or indirectly, designate the calendar year of payment. Nothing in this\nSection 13 shall be construed to alter the terms of this Agreement that condition Employee’s entitlement to any severance or other benefits upon\nEmployee’s compliance with the restrictive covenants and any other terms and conditions specified in this Agreement.\n14. Other Payments. Any payments and benefits that become due under Sections 9, 10 and 11 hereof shall be in addition to (but not in\nduplication of) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except\nthat Employee shall not be entitled to any payments and benefits under the Company’s then current severance pay policies.\n15. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by\nseeking other employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation\nearned by other employment or otherwise; provided, however, that any obligation of the Company to make the payments described in Sections\n9(a)(iii) and 9(b)(iii) shall cease upon Employee becoming covered under a healthcare plan of another employer.\n16. Non-Exclusivity of Rights. Except as provided in Section 14, nothing in this Agreement shall prevent or limit Employee’s\n[continuing or] future participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of\nits subsidiaries or affiliates and for which Employee may qualify.\n17.  No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company’s obligation to make the\npayments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances,\nincluding, without limitation, any set-off, counterclaim, recoupment, defense or other right that the Company may have against Employee or\nothers.\n18. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold\nfrom any payments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or\ngovernmental rule or regulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due\nwith respect to any payment received under this Agreement, including, without limitation, any excise tax imposed by Section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the\ntermination of Employee’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or any other plan,\narrangement or agreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”), would constitute a\n“parachute payment” under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum\namount necessary to result in no portion of the Total Payments being non-deductible to the Company pursuant to Section 280G of the Code or\nsubject to the excise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 18, including whether a reduction in Total Payments is\nrequired, the amount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting\nor law firm of recognized standing reasonably selected by the Company (the “Firm”), which may be, but will not be required to be, the\nCompany’s independent auditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the\nCompany within fifteen (15) days after receipt of a notice from either the Company or Employee that Employee may receive payments that may\nbe “parachute payments.” If the Firm determines that a reduction is required by this Section 18, the Contract Payments consisting of cash\nseverance shall be reduced to the extent necessary so that no portion of the Total Payments shall be subject to the excise tax imposed by section\n4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If additional\nContract Payments must be reduced pursuant to this Section 18 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the\n_7-\nContract Payments allocable to time-vested Equity Awards, to the extent necessary to satisfy the requirements of this Section 18.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the\npossession of Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in\nconnection with the preparation and issuance of the determinations and calculations contemplated by this Section 18. The fees and expenses of\nthe Firm for its services in connection with the determinations and calculations contemplated by this Section 18 shall be borne by the Company.\n19. Confidential Information. Employee agrees that Employee’s services to the Company [have been and will continue to be][will be]\nof a special, unique and extraordinary character, and that Employee’s position places Employee in a position of confidence and trust with the\nCompany’s customers and employees. Employee also recognizes that Employee’s position with the Company will give Employee substantial\naccess to Confidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to\nsuffer substantial and irreparable damage. Employee recognizes, therefore, that it is in the Company’s legitimate business interest to restrict\nEmployee’s use of Confidential Information for any purposes other than the discharge of Employee’s employment duties at the Company, and to\nlimit any potential appropriation of Confidential Information by Employee for the benefit of the Company’s competitors and to the detriment of\nthe Company. Accordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee’s employment, reveal to any person\nor entity any of the trade secrets or confidential information of the Company or of any third party that the Company is under an obligation to\nkeep confidential (including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-\nhow, techniques, systems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) (“Confidential\nInformation”), except as may be required in the ordinary course of performing Employee’s duties as an employee of the Company, and Employee\nshall keep secret all matters entrusted to Employee and shall not use or attempt to use any such information in any manner that may injure or\ncause loss or may be calculated to injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation,\nConfidential Information also includes any and all information, whether or not meeting the legal definition of a trade secret, concerning the\nCompany’s actual, planned or contemplated: (i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii)\npersonnel information; (iii) customer, vendor and supplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts,\nvolumes, characteristics, agreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business\noperations, internal structures and financial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company’s\nservices and products; (ix) proposed services and products; (x) contracts with other parties; (xi) performance characteristics of the Company’s\nproducts; and (xii) Inventions and Works (each as defined in Section 20). Confidential Information also includes any and all information of\nCompany’s clients and customers that is deemed confidential by such clients and customers (whether past, present or potential), including, but\nnot limited to: marketing tools, inventions, processes, contact lists, materials, software program code, logic diagrams, flow charts, procedural\ndiagrams, computer programming techniques and know how, maps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no\nfault of Employee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any\nconfidentiality obligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that\nEmployee is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt\nnotice of such request(s) so that the Company may seek an appropriate protective order or other appropriate remedy and/or waive compliance\nwith the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or the Company\ngrants a waiver hereunder, Employee may furnish that portion (and only that portion) of the Confidential Information that Employee is legally\n-8-\ncompelled to disclose and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any\nConfidential Information so furnished.\n(c) Further, Employee agrees that during Employee’s employment Employee shall not take, use or permit to be used any\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any\nnature relating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the\nbenefit of the Company. Employee further agrees that Employee shall not, after the termination of Employee’s employment, use or permit to be\nused any such notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other\nmaterials, it being agreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately\nupon the termination of Employee’s employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all\ncopies thereof, to the Company, at its main office.\n(d) Employee agrees that upon the termination of Employee’s employment with the Company, Employee will not take or\nretain without written authorization any documents, files or other property of the Company, and Employee will return promptly to the Company\nany such documents, files or property in Employee’s possession or custody, including any copies thereof maintained in any medium or format.\nEmployee recognizes that all documents, files and property that Employee has received and will receive from the Company, including but not\nlimited to scientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of\ndocuments relating to benefits to which Employee might be entitled following the termination of Employee’s employment with the Company),\nare for the exclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee\nhas no claim or right to the continued use, possession or custody of such documents, files or property following the termination of Employee’s\nemployment with the Company.\n(e) Employee acknowledges that the Company has provided Employee with the following notice of immunity rights in\ncompliance with the requirements of the Defend Trade Secrets Act of 2016: (i) Employee shall not be held criminally or civilly liable under any\nU.S. federal or state trade secret law for the disclosure of Confidential Information that is made in confidence to a U.S. federal, state or local\ngovernment official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; (ii) Employee shall not be\nheld criminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of Confidential Information that is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (iii) if Employee files a lawsuit for\nretaliation by the Company for reporting a suspected violation of law, Employee may disclose the Confidential Information to Employee’s\nattorney and use the Confidential Information in the court proceeding, if Employee files any document containing the Confidential Information\nunder seal, and does not disclose the Confidential Information, except pursuant to court order. However, under no circumstance will Employee be\nauthorized to disclose any information covered by attorney-client privilege or attorney work product of the Company without prior written\nconsent of the Company’s General Counsel or other officer designated by the Company. Notwithstanding anything to the contrary contained\nherein, no provision of this Agreement shall be interpreted so as to impede Employee (or any other individual) from reporting possible violations\nof U.S. federal law or regulation to any governmental agency or entity, including but not limited to the U.S. Department of Justice, the U.S.\nSecurities and Exchange Commission, the U.S. Congress, and any agency Inspector General of the U.S. government, or making other disclosures\nunder the whistleblower provisions of U.S. federal law or regulation. Employee does not need the prior authorization of the Company to make\nany such reports or disclosures and Employee shall not be not required to notify the Company that such reports or disclosures have been made.\n20. Intellectual Property.\n(@) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as\ndefined below) that are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is\nemployed by the Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and\ncurrent written records of all\nInventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program code,\nprocedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, along with all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that “Inventions,” is defined in this Agreement to include any and all new or useful\nideas, developments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual\nproperty, whether patentable or not (including without limitation any technology, computer programs, software, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter,\nformula or technique), and all know-how related thereto, that Employee conceives, makes, reduces to practice, or develops, solely or jointly with\nothers (i) that relate to the actual or contemplated business, work or activities of the Company, (ii) that result from or are suggested by any work\nwhich Employee [has done or] may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s\nemployment by the Company, or (iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee\nwas paid by the Company, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the\nCompany.\n(c) The Company and Employee agree that “Works” is defined in this Agreement to include any and all materials for which\ncopyright protection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask\nworks, artistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code,\nlogic diagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other\naudio-visual works that Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) that relate to the actual or\ncontemplated business, work or activities of the Company, (ii) that result from or are suggested by any work which Employee has done or may\ndo on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by the Company, or\n(iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with\nthe use of premises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the\nrights, titles and interests in and to any and all such Inventions and Works that Employee [has or] may acquire in such Inventions or Works that\nare conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the\nCompany and for a period of six (6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights,\ntrademarks and other intellectual property rights in connection therewith, and agrees to take all such actions as may be requested by the Company\nduring Employee’s employment with the Company and at any time thereafter, with respect to any such Inventions or Works to confirm or\nevidence such assignment, transfer, conveyance or ownership, and to assist in the Company’s maintenance, enforcement, license, assignment,\ntransfer, or conveyance of rights in respect of the Inventions or Works.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee\nagrees to execute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence\nand do any and all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment,\ntransfer and conveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents,\ntrademarks, copyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or\nto obtain any extension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right.\nBy way of further example and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of\ninitiating, maintaining or defending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other\nproceedings as requested by the Company. In the event that the Company may be unable, for\n-10-\nany reason whatsoever, after reasonable effort, to secure Employee’s signature on any patent, copyright, trademark or other intellectual property\napplication or other papers, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents, as\nEmployee’s agent and attorney-in-fact to act for and on behalf of Employee to execute, acknowledge, swear to, seal and deliver to the Company\nand to file any such application or applications or other papers, and to do all other lawfully permitted acts to further the provisions of this Section\n20 of this Agreement.\n() The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the\nprovisions of Sections 20(d) and 20(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional\ncompensation beyond that paid to Employee for the period of time that he is employed by the Company, which compensation, along with the\nCompany’s understandings set forth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises\nand obligations set forth in this Agreement.\n(g) Employee expressly acknowledges and states that all Works that are made by Employee (solely or jointly with others) are\nbeing created at the instance of the Company and are “works made for hire,” as that term is defined in the Copyright Act of 1976, 17 USC § 101.\nIn the event that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent\njurisdiction not to be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to the\nCompany of all Employee’s right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world,\nincluding the right to prepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not,\nthat have been conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee’s employment by the\nCompany; provided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or that is\nthe subject of a contract preventing Employee’s disclosure of the information to the Company.\n21. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee’s employment with the Company, the Company will provide Employee Confidential\nInformation, which Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company’s trade secrets\nand with other Confidential Information concerning the Company and that Employee’s services shall be of special, unique and extraordinary\nvalue to the Company, and therefore, the Employee agrees that some restrictions on Employee’s activities during and after Employee’s\nemployment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee’s employment by the Company and, if Employee’s employment with the Company\nterminates for any reason, for a period of one (1) year thereafter (“Covenant Period”), except with the written consent of the Board, Employee\nshall not directly or indirectly, own, control, finance or participate in the ownership, control or financing of, or be employed by or provide\nservices to, any Competitor. For the purposes of this Agreement, a “Competitor” is defined as a person, business or enterprise (including\ndivisions of persons, businesses and enterprises) that directly or indirectly engages in services of the type conducted, authorized, offered or\nprovided by the Company (the “Restricted Business”) in the Territory. Without limiting the foregoing, for purposes of this Agreement, each\nentity listed on Attachment B, as shall be modified from time to time by the Company upon written notice to Employee, shall constitute a\n“Competitor.” For purposes of this Agreement, “Territory” is defined as the territory or territories within which Employee actually worked, or in\nrespect of which Employee was involved in providing services, during the twelve (12) month period prior to Employee’s Termination Date.\nNotwithstanding the foregoing, nothing herein shall prevent Employee from providing services to, or being employed by, or owning, controlling,\nfinancing or participating in the ownership, control or financing of, any diversified entity or other person (other than the entities listed on\nAttachment B) that is engaged in the Restricted Business, so long as (i) the Restricted Business does not constitute greater than 25% of the\naggregate revenue of such diversified entity or other person and (ii) Employee is not employed within and does not have\n-11-\ninvolvement with business development or business strategy with respect to the Restricted Business. In further consideration for the Company’s\npromises herein, Employee agrees that during the Covenant Period, Employee will not directly or indirectly (i) solicit, entice, induce, cause,\nencourage or recruit any part-time or full-time employee, representative, consultant, customer, subscriber or supplier of the Company or its\nsubsidiaries or affiliates to work for, provide services to or do business with a third party other than the Company or its subsidiaries or affiliates\nor engage in any activity that would cause any employee, representative, consultant, customer, subscriber or supplier to violate any agreement\nwith the Company or its subsidiaries or affiliates or otherwise terminate or change its relationship with the Company or its subsidiaries or\naffiliates or (ii) hire any current or former part-time or full-time employee, representative or consultant of the Company or its Affiliates who was\nemployed or engaged by the Company or its subsidiaries or affiliates at any time during the twelve (12) month period prior to Employee’s\nTermination Date or who thereafter becomes employed or engaged by the Company or its subsidiaries or affiliates.\n(b) The foregoing restrictions shall not be construed to prohibit Employee’s ownership of less than one percent (1%) of any\nclass of securities of any corporation that is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the\nSecurities Exchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any\ngroup of persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees\nany of its financial obligations, otherwise takes any part in its business, other than exercising Employee’s rights as a stockholder, or seeks to do\nany of the foregoing.\n22. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and\nwill not be constrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary\ninformation arising out of any prior business relationship or contract that, in Employee’s best judgment would be utilized in connection with\nEmployee’s employment with the Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary\ninformation to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into\nthis Agreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) Employee\nhas been advised by the Company to consult Employee’s own legal counsel in respect of this Agreement, and Employee has had full opportunity,\nprior to execution of this Agreement, to review thoroughly this Agreement with Employee’s counsel; (iii) the restrictions imposed on Employee\nby this Agreement are fair, reasonable and proper and required for the protection of the Company’s business interests, particularly its investments\nin Employee (e.g., Employee’s job knowledge and skills), its Confidential Information, as well as the goodwill developed, and its business\nrelationships, with its clients, customers and prospective clients and customers; (iv) the Company would not have entered into this Agreement in\nthe absence of such restrictions, and that any violation of any provision of Sections 19, 20 or 21 hereof will result in irreparable injury to the\nCompany; and (v) the restrictions imposed on Employee by this Agreement, particularly, the post-termination restrictions, shall not preclude\nEmployee from earning a living or engaging in Employee’s profession or trade, or pursuing a career or a business, in each case at the same\ngeneral level of economic benefit as is currently the case.\n23. Consequences of Breach of Covenants; Equitable Relief.\n(a) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity\nof proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 19,\n20, and 21 hereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The\nperiod of the injunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of\nSections 19, 20, and 21 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable\nlaw in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other\nlimitations permitted by applicable law.\n-12-\n(b) Notwithstanding anything to the contrary herein, Employee acknowledges and agrees that the severance payments and\nbenefits provided herein are being provided by the Company to Employee, among other things, as additional consideration and solely for\nEmployee’s agreement with and adherence to the post-employment restrictive covenants in Section 21 (a)-(c) and Employee’s other promises,\ncovenants, commitments and obligations in this Agreement (including the releases granted in Section 13), the adequacy and sufficiency of which\nEmployee expressly acknowledges. Employee agrees that should the Company, in its sole discretion, deem Employee to be in violation of any\nprovision(s) in said Section 21 (a)-(c), the Company may immediately cease payment of all or any portion of the severance payments and\nbenefits provided hereunder. Employee acknowledges that the severance payments and benefits provided for herein are in addition to anything of\nvalue to which Employee was already entitled.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section\n19, 20, and 21 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or\nother equitable relief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction\nor will not accept jurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court\nin any such suit, action or proceeding, and (iii) waives any objection that Employee may have to the laying of venue of any such suit, action or\nproceeding in any such court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other\npapers in a manner permitted by the notice provisions of Section 26 hereof.\n24. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee’s employment with the\nCompany; provided, however, that after the termination of Employee’s employment during the term of this Agreement, this Agreement shall\nremain in effect until all of the obligations of the Parties hereunder are satisfied or have expired.\n25. Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance\nsatisfactory to Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance\nwith the terms hereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the\nsame extent that the Company would be required to perform if no such succession or successions had taken place. Failure of the Company to\nobtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the\nCompany shall mean the Company as hereinbefore defined and any such successor or successors to its business and/or assets, jointly and\nseverally.\n26. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith\nshall be in writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express\ncourier service, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n-13-\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the\nlast address of the Company or to any successor pursuant to this Section 26 shall be deemed sufficient for the purposes hereof. Any such notice\nshall be deemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S.\nPostal Service in the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n27. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving\neffect to any conflict of laws provisions.\n28. Contents of Agreement, Amendment and Assignment.\n \n(a) This Agreement, including the Code of Ethics, supersedes all prior agreements with respect to the subject matter hereof,\nsets forth the entire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended\nor terminated except upon written amendment executed by Employee and executed on the Company’s behalf by a duly authorized officer, except\nfor revisions or additions to Attachment B, which may be unilaterally modified by the Company upon written notice to Employee[; provided,\nhowever, that this Agreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award\nagreements regarding stock options, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance\nunits or other stock-based awards issued to Employee prior to the effective date of this Agreement]. The provisions of this Agreement may\nprovide for payments to Employee under certain compensation or bonus plans under circumstances where such plans would not provide for\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in\nsuch plans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany’s Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in\nthe imposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company,\nor as changing or modifying the “at will” nature of Employee’s employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by\nthe respective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee’s Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devises, legates or other designees or, if\nthere is no such designee, to Employee’s estate.\n29. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted,\nand the remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n30. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other\nright or remedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given\nhereunder or now or hereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or\nexisting at law or in equity shall be construed as a waiver thereof.\n31. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of\nwhich is an original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the\nother counterparts.\n-14-\n32. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of Section 409A of the Code to the extent\napplicable or to be exempt from Section 409A of the Code pursuant to the “short-term deferral exception” under Treas. Reg. section 1.409A-1(b)\n(4) or the “separation pay exception” under Treas. Reg. Section 1.409A-1(b)(9)(iii), and shall in all respects be administered and construed in\naccordance with Section 409A of the Code. If any payment or benefit hereunder cannot be provided or made at the time specified herein without\nincurring sanctions on Employee under Section 409A of the Code, then such payment or benefit shall be provided in full at the earliest time\nthereafter when such sanctions will not be imposed. For purposes of Section 409A of the Code, all payments to be made upon a Termination of\nEmployment under this Agreement may only be made upon a “separation from service” (within the meaning of such term under Section 409A of\nthe Code), each payment made under this Agreement shall be treated as a separate payment, the right to a series of installment payments under\nthis Agreement is to be treated as a right to a series of separate payments, and if a payment is not made by the designated payment date under this\nAgreement, the payment shall be made by December 31 of the calendar year in which the designated date occurs. To the extent that any payment\nprovided for hereunder would be subject to additional tax under Section 409A of the Code, or would cause the administration of this Agreement\nto fail to satisfy the requirements of Section 409A of the Code, such provision shall be deemed null and void to the extent permitted by\napplicable law, and, to the extent applicable, any such amount shall be payable in accordance with Section 32(b). In no event shall the Employee,\ndirectly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and form of\npayment of any amounts or payments of “deferred compensation” (as defined under Treas. Reg. Section 1.409A-1(b)(1), after giving effect to the\nexemptions in Treas. Reg. Sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement between\nthe Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b) Payment Delay. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any\npayments or benefits otherwise payable under this Agreement as a result of Employee’s “separation from service” with the Company to prevent\nthe imposition of any accelerated or additional tax under Section 409A of the Code, then the Company will postpone the commencement of the\npayment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to\nEmployee) that are not otherwise paid within the “short-term deferral exception” under Treas. Reg. Section 1.409A-1(b)(4) and the “separation\npay exception” under Treas. Reg. Section 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following\nEmployee’s “separation of service” with the Company. If any payments are postponed due to such requirements, such postponed amounts will be\npaid to Employee in a lump sum on the first payroll date that occurs after the date that is six months following Employee’s “separation of\nservice” with the Company. If Employee dies during the postponement period prior to the payment of the postponed amount, the amounts\nwithheld on account of Section 409A of the Code shall be paid to the personal representative of Employee’s estate within sixty (60) days after the\ndate of the Employee’s death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the\nrequirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred\nduring Employee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for\nreimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement\nof an eligible expense will be made on or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the\nright to reimbursement is not subject to liquidation or exchange for another benefit.\n33. Recoupment Policy. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any\nclawback or recoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without\nnotice (the “Recoupment Policy”) to further the Company’s interests in enhancing its corporate governance practices and/or to comply with\napplicable law, rules or regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on\nwhich shares of the common stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the\nCompany may seek to recoup all or part of any severance payments, bonus or other\n-15-\nincentive compensation paid to certain officers and former officers, including Equity Awards, in the event that the Company is required to restate\nits financial statements. In consideration of the [continued] benefits to be received from the Company (or a subsidiary) and the right to participate\nin, and receive future awards under, the Company’s cash and equity-based incentive programs, Employee hereby acknowledges, understands and\nagrees that:\n(@) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards,\npaid or awarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent\nprovided in the Recoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this\nAgreement or hereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy\neven if the Recoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms,\nand Employee promptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the\nRecoupment Policy for repayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity\nAwards, subject to the Recoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and\nEmployee is not waiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment\nPolicy, other than (i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards\nand (ii) waiving any claim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n-16-\nIN WITNESS WHEREOQF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above\nwritten.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nName:\nTitle:\n[NAME OF EXECUTIVE]\n-17-\nATTACHMENT A\n1. The following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed,\nauthored, created, drawn or written by me alone or jointly with others prior to my engagement by the Company.\n[0 None.\n \n \n \n \n \nU Due to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be\nincluded on the above-described list.\n[0 Additional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n-18-\nATTACHMENT B - List of Direct Competitors N AN\nInternational Business Machines Corporation\nAccenture LTD\nCap Gemini S.A.\nTata Consultancy Services\nInfosys Limited\nWipro Limited\nHCL Technologies Limited\nDXC Technology Company\n-19-	EX-10.3 2 ctshexhibit10312312017.htr EXHIBIT 10.3\nEXHIBIT 10.3\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION\nASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment\nAgreement (this "Agreement") is made as of the day of 2018 (the "Effective Date") by and between Cognizant Technology Solutions\nCorporation, a Delaware corporation (the "Company" (where applicable, the definition of Company shall include the Company's subsidiaries and\naffiliates and any successors or assigns)), and\n("Employee").\n[WHEREAS, Employee is currently employed by the Company as its\n[and]]\nWHEREAS, the Company desires to [continue to] retain the services of Employee; [and]\n[WHEREAS, the Parties desire to amend and restate, in its entirety, the parties' prior agreements pertaining to Employee's\nemployment, and set forth the new terms and conditions of Employee's employment by the Company.]\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and\nintending to be legally bound hereby, the Company and Employee (individually a "Party" and together, the "Parties") agree as follows:\n1.\nDefinitions.\n(a) "Annual Base Salary." shall mean the rate of annual base salary paid or payable to Employee by the Company (including\nauthorized deferrals and salary reduction amounts) immediately prior to Employee's Termination Date.\n(b) "Board" shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) "Cause" shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee's supervisor, (iii) failure by the Employee to observe\nmaterial\npolicies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor\ninvolving moral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) "Code" means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) "Disability." means Employee's total and permanent disability as determined in accordance with the Company's long-term\ndisability policy, whether or not Employee is covered by such policy.\n(f) "Good Reason" means, the occurrence of one or more of the following events or actions:\n(i)\nA material diminution by the Company of Employee's authority, duties or responsibilities;\n(ii) A material diminution in Employee's overall compensation package, which is not otherwise caused by an overall\npolicy by the Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv)\nA change, without Employee's consent, in the principal place of work of the Employee to a location that is\nmore\nthan 50 miles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) "Notice of Termination" means a written notice that (i) indicates the specific termination provision in this Agreement\nrelied upon and (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee's employment under\nthe provision so indicated.\n(h) "Termination Date" shall mean the last day of Employee's employment with the Company.\n(i) "Termination of Employment" shall mean the termination of Employee's active employment relationship with the\nCompany.\n2. Employment. The Company hereby employs][continues to employ] Employee, and Employee hereby [accepts][continu to\naccept] such employment, upon the terms and conditions set forth herein.\n3. Duties.\n(a) Position. Employee [shall be J[continues to be] employed as and shall have the duties and responsibilities\nassigned by\nupon initial hire and from time to time thereafter. Employee shall perform faithfully and diligently all duties assigned to\nEmployee. The Company reserves the right to modify Employee's position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to or such other\nposition of a similar or more senior level.\n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee's best efforts and\nentire business time and attention to the Company's business during the term of Employee's employment with the Company. Employee agrees\nthat, during the term of Employee's employment, except as otherwise approved in writing by the Company, which approval the Company may in\nits absolute discretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction\nwith any person, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or\nentity other than the Company; provided that the foregoing is not intended to prevent an Employee from pursuing hobbies or participating in\nany\nother activity that is not to the detriment of the Company. Employee further acknowledges and agrees that Employee has access to the\nCompany's Core Values & Code of Ethics (the "Code of Ethics") located at www.cognizant.com, and Employee has read and understands the\nCode of Ethics and shall abide by all the terms of said Code of Ethics, as may be amended from time to time, and said Code of Ethics shall be\nincorporated into this Agreement. Employee will abide by all policies and decisions made by the Company, as well as all applicable federal, state\nand local laws, regulations or ordinances. Employee will act in the best interest of the Company at all times.\n(c) Work Location. Employee's principal place of work shall be located in or such other location as the parties\nmay\nagree upon from time to time.\n4. At-Will Employment. Employee's employmen with the Company will be "at will," meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary.. As compensation for Employee's performance of Employee's duties hereunder, the Company shall\npay to Employee a base salary as most recently determined by the Compensation\n-2-\nCommittee of the Board and last communicated to the Employee, as may be modified by the Compensation Committee of the Board, payable\nin\naccordance with the normal payroll practices of the Company, less required deductions for state and federal withholding tax, social security and\nall other employment taxes and payroll deductions. In the event Employee's employment under this Agreement is terminated by either Party, for\nany reason, Employee will earn the Annual Base Salary prorated to Employee's Termination Date.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation\nCommittee of the Board in accordance with the bonus plan(s) provided to Employee by the Company, in accordance with the terms and\nconditions of such plan(s).\n(c) [Stock Options and Other Equity. Awards. Except as set forth herein, this Agreement does not modify or change\nthe\nexisting agreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an "Equity\nAward" and collectively, "Equity Awards") previously issued to Employee.]\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to employees\nof the Company subject to the terms and conditions of the Company's benefit plan documents. The Company reserves the right to change or\neliminate the fringe benefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance\nof Employee's duties on behalf of the Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with the Company's policies.\n8. Company Access. Employee agrees and consents that, during the term of Employee's employment with the Company and\nthereafter, the Company may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and\ninternet access system provided by the Company with or without notice to Employee and that such review, audit, interception, access, or\ndisclosure may occur during or after working hours. Employee further consents and agrees that the Company may, at any time, access and review\nthe contents of all computers, computer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations\nthat are either on the Company's premises or that are owned or provided by the Company.\n9. Involuntary. Termination of Employment\n(a) Prior to a Change in Control. In the event that Employee's employment with the Company is involuntarily terminated by\nthe Company for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company's right to cure (as set forth in Section 10) has expired (an "Involuntary Termination"), and in either such case\nEmployee's employment termination becomes effective before any Change in Control (as defined in Section 9(d) below) has occurred following\nthe date of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does\nnot revoke the Release (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to one (1) times Employee's Annual Base Salary, such amount to\nbe\npaid\nin\nregular\ninstallments in accordance with the Company's normal payroll practices over a period of twelve (12) months, commencing\non\nor as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee's Termination Date.\n(ii)\nEmployee shall receive a cash payment equal to one (1) times the amount of the Employee's target annual\nbonus\nfor the performance year in which the Employee's Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee's Termination Date.\n-3-\n(iii) The Company shall, for a period of eighteen (18) months following the Employee's Termination Date, pay the\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company's group medical plan for Employee\nand, where applicable, Employee's spouse and eligible dependents; provided that Employee, and, where applicable, Employee's spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments\nspecified under this Section 9(a)(iii) shall cease if the Company's statutory obligation to provide such COBRA healthcare continuation coverage\nterminates for any reason before the expiration of the eighteen (18)-month period. All Company payments under this Section 9(a)(iii) to the\nEmployee can be used for any purpose and will be reported as taxable payments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company and would have vested had Employee remained employed by the Company during the twelve (12) month period following\nEmployee's Termination Date shall automatically become fully vested and exercisable, as applicable, as of Employee's Termination Date. Such\nEquity Awards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v)\nWith respect to any outstanding Equity Award that was subject to vesting in whole or in part based\non\nachievement of performance objective(s), to the extent that the applicable performance period has expired on or before Employee's Termination\nDate, the performance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, the portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12)\nmonth period following Employee's Termination Date shall become fully vested and exercisable as of Employee's Termination Date. Such\nEquity Award shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(a)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary\nTermination that becomes effective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change\nin\nControl following the date of this Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in\nlieu of, and not in addition to, the payments and benefits described in Section 9(a); provided that Employee executes and does not revoke the\nRelease (as defined in Section 13) and the Release first becomes effective:\n(i)\nEmployee shall receive a cash payment equal to two (2) times Employee's Annual Base Salary, such amount\nto\nbe paid in regular installments in accordance with the Company's normal payroll practices over a period of twenty-four (24) months,\ncommencing on or as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee's\nTermination Date.\n(ii) Employee shall receive a cash payment equal to two (2) times the amount of the Employee's target annual bonus\nfor the performance year in which the Employee's Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee's Termination Date.\n(iii)\nThe Company shall, for a period of eighteen (18) months following the date of Employee's Termination\nof\nEmployment, pay Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company's group medical\nplan for Employee and, where applicable, Employee's spouse and eligible dependents; provided that Employee, and, where applicable,\nEmployee's spouse and dependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further\nthat\nthe\npayments specified under this Section 9(b)(iii) shall cease if the Company's statutory obligation to provide such COBRA healthcare\ncontinuation coverage terminates for any reason before the expiration of the eighteen (18)-month\n-4-\nperiod. All Company payments under this Section 9(a)(iii) to the Employee can be used for any purpose and will be reported as taxable\npayments.\n(iv)\nThe portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service\nwith\nthe Company shall automatically become fully vested and exercisable, as applicable, as of Employee's Termination Date. Such vested Equity\nAwards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of\nperformance objectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee's Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, such Equity Award shall become fully vested and exercisable as of Employee's Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee's Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of\nclosing of the Change in Control, make a good faith determination of the level of achievement of such pro-rated performance objective\nas of such closing date, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the\nlevel of achievement of the pro-rated performance objective, disregarding any future service conditions that otherwise would apply to\nsuch Equity Award.\n(vi)\nEmployee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(c) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to\nthe other Party hereto given in accordance with Section 26 hereof.\n(d) Definition of Change in Control. For purposes of this Agreement, the term "Change in Control" shall have the meaning\nset forth in the Company's 2017 Incentive Award Plan, as amended from time to time or any successor plan in effect as of Employee's\nTermination Date.\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the\nexpiration of the cure period and Employee's actual termination as described below, such resignation shall be deemed an Involuntary Termination\nfor purposes of this Agreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set\nforth in this Agreement, including Section 13. Employee must provide written notice to the Company of his intent to terminate his employment\nfor Good Reason within thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have\na period of thirty (30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in\nEmployee's notice of termination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period,\nEmployee must terminate his employment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the\ntermination to be considered a Good Reason termination under this Agreement.\n11. Termination Due to Death. If Employee's employment with the Company is terminated due to death, Employee shall be entitled to\nthe payments and benefits described below, provided that Employee's estate executes and does not revoke the Release (as defined in Section 13)\nand the Release first becomes effective:\n(a) Employee shall receive a cash payment equal to (1) times the amount of the Employee's target annual bonus for the\nperformance year in which the Employee's Termination Date occurs, pro-rated based on\n-5-\nthe portion of such year that has elapsed as of Employee's Termination Date. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee's Termination Date.\n(b) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the\nCompany shall automatically become fully vested and exercisable, as applicable, as of Employee's Termination Date. Such vested Equity Awards\nshall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(c) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(i) To the extent that the applicable performance period has expired on or before Employee's Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future\ndates, such Equity Award shall become fully vested and exercisable as of Employee's Termination Date.\n(ii) To the extent that the applicable performance period has not expired on or before Employee's Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to Employee's\nTermination Date, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Termination\nDate, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of\nthe\npro-rated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(d) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 11(d) are not conditioned upon the Release becoming effective unless the applicable\nbenefit plan or program provides otherwise.\n12. Termination Due to Disability or For Cause. If Employee's employment with the Company is terminated by the Company due to\nDisability or for Cause, Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany; all other Company obligations to Employee will be extinguished as of the Termination Date.\n13. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9, 10 and 11, as applicable\n(except for those payments that are owed pursuant to applicable law and/or are specifically not conditioned upon the execution of a release by\nEmployee or Employee's estate, as applicable), unless Employee or his estate, if applicable, executes, and does not revoke, the Company's then\nstandard written general release (the "Release") of any and all claims against the Company and all related parties with respect to all matters\narising out of Employee's employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans\nor programs of the Company in which Employee participated and under which Employee has accrued and earned a benefit) or the termination\nthereof. The Company will provide Employee with the form of release agreement within seven days after Employee's separation from service. To\nbe entitled to the severance or other benefits, Employee must execute and deliver to the Company the release agreement on or before the last day\nof\nthe\nminimum\nrequired\nwaiver\nconsideration\nperiod\nprovided\nunder\nthe\nAge\nDiscrimination\nin\nEmployment\nAct\nor\nother\napplicable\nlaw\nor\nsuch\nlater date specified in the release agreement. If Employee timely delivers an executed release agreement to the Company, and Employee does not\nrevoke the release agreement during the minimum revocation period required under applicable law, if any, the severance or other benefits shall be\npaid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to Section 32(b) of this Agreement. If,\nhowever, the period during which Employee has discretion to execute or revoke the release agreement straddles two calendar years, the cash\nseverance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of the two calendar years,\nregardless of within which calendar\n-6-\nyear Employee actually delivers the executed release agreement to the Company, subject to the release agreement first becoming effective.\nConsistent with section 409A of the Code, Employee may not, directly or indirectly, designate the calendar year of payment. Nothing in this\nSection 13 shall be construed to alter the terms of this Agreement that condition Employee's entitlement to any severance or other benefits upon\nEmployee's compliance with the restrictive covenants and any other terms and conditions specified in this Agreement.\n14. Other Payments. Any payments and benefits that become due under Sections 9, 10 and 11 hereof shall be in addition to (but not in\nduplication of) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except\nthat Employee shall not be entitled to any payments and benefits under the Company's then current severance pay policies.\n15. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by\nseeking other employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation\nearned by other employment or otherwise; provided, however, that any obligation of the Company to make the payments described in Sections\n9(a)(iii) and 9(b)(iii) shall cease upon Employee becoming covered under a healthcare plan of another employer.\n16. Non-Exclusivity of Rights. Except as provided in Section 14, nothing in this Agreement shall prevent or limit Employee's\n[continuing or] future participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of\nits subsidiaries or affiliates and for which Employee may qualify.\n17. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company's obligation to make the\npayments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances,\nincluding, without limitation, any set-off, counterclaim, recoupment, defense or other right that the Company may have against Employee or\nothers.\n18. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold\nfrom any payments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or\ngovernmental rule or regulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due\nwith respect to any payment received under this Agreement, including, without limitation, any excise tax imposed by Section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the\ntermination of Employee's employment (whether payable pursuant to the terms of this Agreement ("Contract Payments") or any other plan,\narrangement or agreement with the Company or any affiliate (collectively with the Contract Payments, the "Total Payments"), would constitute a\n"parachute payment" under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum\namount necessary to result in no portion of the Total Payments being non-deductible to the Company pursuant to Section 280G of the Code or\nsubject to the excise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 18, including whether a reduction in Total Payments is\nrequired, the amount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting\nor law firm of recognized standing reasonably selected by the Company (the "Firm"), which may be, but will not be required to be, the\nCompany's independent auditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the\nCompany within fifteen (15) days after receipt of a notice from either the Company or Employee that Employee may receive payments that may\nbe "parachute payments." If the Firm determines that a reduction is required by this Section 18, the Contract Payments consisting of cash\nseverance shall be reduced to the extent necessary so that no portion of the Total Payments shall be subject to the excise tax imposed by section\n4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If additional\nContract Payments must be reduced pursuant to this Section 18 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the\n-7-\nContract Payments allocable to time-vested Equity Awards, to the extent necessary to satisfy the requirements of this Section 18.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the\npossession of Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in\nconnection with the preparation and issuance of the determinations and calculations contemplated by this Section 18. The fees and expenses of\nthe Firm for its services in connection with the determinations and calculations contemplated by this Section 18 shall be borne by the Company.\n19. Confidential Information. Employee agrees that Employee's services to the Company [have been and will continue to e][will be]\nof a special, unique and extraordinary character, and that Employee's position places Employee in a position of confidence and trust with the\nCompany's customers and employees. Employee also recognizes that Employee's position with the Company will give Employee substantial\naccess to Confidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to\nsuffer substantial and irreparable damage. Employee recognizes, therefore, that it is in the Company's legitimate business interest to restrict\nEmployee's use of Confidential Information for any purposes other than the discharge of Employee's employment duties at the Company, and to\nlimit any potential appropriation of Confidential Information by Employee for the benefit of the Company's competitors and to the detriment of\nthe Company. Accordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee's employment, reveal to any person\nor entity any of the trade secrets or confidential information of the Company or of any third party that the Company is under an obligation to\nkeep confidential (including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-\nhow, techniques, systems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) ("Confidential\nInformation"), except as may be required in the ordinary course of performing Employee's duties as an employee of the Company, and Employee\nshall keep secret all matters entrusted to Employee and shall not use or attempt to use any such information in any manner that may injure\nor\ncause loss or may be calculated to injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation,\nConfidential Information also includes any and all information, whether or not meeting the legal definition of a trade secret, concerning the\nCompany's actual, planned or contemplated: (i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii)\npersonnel information; (iii) customer, vendor and supplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts,\nvolumes, characteristics, agreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business\noperations, internal structures and financial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company's\nservices and products; (ix) proposed services and products; (x) contracts with other parties; (xi) performance characteristics of the Company's\nproducts; and (xii) Inventions and Works (each as defined in Section 20). Confidentia Information also includes any and all information of\nCompany's clients and customers that is deemed confidential by such clients and customers (whether past, present or potential), including, but\nnot limited to: marketing tools, inventions, processes, contact lists, materials, software program code, logic diagrams, flow charts, procedural\ndiagrams, computer programming techniques and know how, maps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no\nfault of Employee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any\nconfidentiality obligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that\nEmployee is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Confidentia Information, it is agreed that Employee will provide the Company with prompt\nnotice of such request(s) so that the Company may seek an appropriate protective order or other appropriate remedy and/or waive compliance\nwith the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or the Company\ngrants a waiver hereunder, Employee may furnish that portion (and only that portion) of the Confidential Information that Employee is legally\n-8-\ncompelled to disclose and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any\nConfidential Information so furnished.\n(c) Further, Employee agrees that during Employee's employment Employee shall not take, use or permit to be used any\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any\nnature relating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the\nbenefit of the Company. Employee further agrees that Employee shall not, after the termination of Employee's employment, use or permit to be\nused any such notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other\nmaterials, it being agreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately\nupon the termination of Employee's employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all\ncopies thereof, to the Company, at its main office.\n(d) Employee agrees that upon the termination of Employee's employment with the Company, Employee will not take\nor\nretain without written authorization any documents, files or other property of the Company, and Employee will return promptly to the Company\nany such documents, files or property in Employee's possession or custody, including any copies thereof maintained in any medium or format.\nEmployee recognizes that all documents, files and property that Employee has received and will receive from the Company, including but not\nlimited to scientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of\ndocuments relating to benefits to which Employee might be entitled following the termination of Employee's employment with the Company),\nare for the exclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee\nhas no claim or right to the continued use, possession or custody of such documents, files or property following the termination of Employee's\nemployment with the Company.\n(e) Employee acknowledges that the Company has provided Employee with the following notice of immunity rights in\ncompliance with the requirements of the Defend Trade Secrets Act of 2016: (i) Employee shall not be held criminally or civilly liable under any\nU.S. federal or state trade secret law for the disclosure of Confidential Information that is made in confidence to a U.S. federal, state or local\ngovernment official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; (ii) Employee shall not be\nheld\ncriminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of Confidential Information that is made in\na\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (iii) if Employee files a lawsuit for\nretaliation by the Company for reporting a suspected violation of law, Employee may disclose the Confidentia Information to Employee's\nattorney\nand\nuse\nthe\nConfidential Information in the court proceeding, if Employee files any document containing the Confidential Information\nunder seal, and does not disclose the Confidential Information, except pursuant to court order. However, under no circumstance will Employee be\nauthorized to disclose any information covered by attorney-client privilege or attorney work product of the Company without prior written\nconsent\nof\nthe\nCompany's\nGeneral\nCounsel\nor\nother\nofficer\ndesignated\nby\nthe\nCompany.\nNotwithstanding\nanything\nto\nthe\ncontrary\ncontained\nherein, no provision of this Agreement shall be interpreted so as to impede Employee (or any other individual) from reporting possible violations\nof U.S. federal law or regulation to any governmental agency or entity, including but not limited to the U.S. Department of Justice, the U.S.\nSecurities and Exchange Commission, the U.S. Congress, and any agency Inspector General of the U.S. government or making other disclosures\nunder the whistleblower provisions of U.S. federal law or regulation. Employee does not need the prior authorization of the Company to make\nany such reports or disclosures and Employee shall not be not required to notify the Company that such reports or disclosures have been made.\n20. Intellectual Property..\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as\ndefined below) that are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is\nemployed by the Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and\ncurrent written records of all\n-9-\nInventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program code,\nprocedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, along with all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that "Inventions," is defined in this Agreement to include any and all new or useful\nideas, developments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual\nproperty, whether patentable or not (including without limitation any technology, computer programs, software, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter,\nformula or technique), and all know-how related thereto, that Employee conceives, makes, reduces to practice, or develops, solely or jointly with\nothers (i) that relate to the actual or contemplated business, work or activities of the Company, (ii) that result from or are suggested by any work\nwhich Employee [has done or] may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee's\nemployment by the Company, or (iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee\nwas paid by the Company, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of\nthe\nCompany.\n(c) The Company and Employee agree that "Works" is defined in this Agreement to include any and all materials for which\ncopyright protection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask\nworks, artistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code,\nlogic diagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other\naudio-visual works that Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) that relate to the actual or\ncontemplated business, work or activities of the Company, (ii) that result from or are suggested by any work which Employee has done or may\ndo on behalf of the Company, or by any information that Employee may receive by virtue of Employee's employment by the Company, or\n(iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with\nthe use of premises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the\nrights, titles and interests in and to any and all such Inventions and Works that Employee [has or] may acquire in such Inventions or Works that\nare conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the\nCompany and for a period of six (6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights,\ntrademarks and other intellectual property rights in connection therewith, and agrees to take all such actions as may be requested by the Company\nduring Employee's employment with the Company and at any time thereafter, with respect to any such Inventions or Works to confirm or\nevidence such assignment, transfer, conveyance or ownership, and to assist in the Company's maintenance, enforcement, license, assignment,\ntransfer, or conveyance of rights in respect of the Inventions or Works.\n(e)\nBy way of example and not limitation, at any time and from time to time, upon the request of the Company,\nEmployee\nagrees to execute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence\nand do any and all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment,\ntransfer\nand\nconveyance\nor\nto\nenable\nthe\nCompany\nto\nfile\nand\nprosecute\napplications\nfor\nand\nto\nacquire,\nmaintain\nand\nenforce\nany\nand\nall\npatents,\ntrademarks, copyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or\nto obtain any extension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right.\nBy way of further example and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of\ninitiating, maintaining or defending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other\nproceedings as requested by the Company. In the event that the Company may be unable, for\n-10-\nany reason whatsoever, after reasonable effort, to secure Employee's signature on any patent, copyright, trademark or other intellectual property\napplication or other papers, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents, as\nEmployee's agent and attorney-in-fact to act for and on behalf of Employee to execute, acknowledge, swear to, seal and deliver to the Company\nand to file any such application or applications or other papers, and to do all other lawfully permitted acts to further the provisions of this Section\n20 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the\nprovisions of Sections 20(d) and 20(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional\ncompensation beyond that paid to Employee for the period of time that he is employed by the Company, which compensation, along with the\nCompany's understandings set forth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises\nand obligations set forth in this Agreement.\n(g) Employee expressly acknowledges and states that all Works that are made by Employee (solely or jointly with others) are\nbeing created at the instance of the Company and are "works made for hire," as that term is defined in the Copyright Act of 1976, 17 USC 8 101.\nIn the event that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent\njurisdiction not to be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to the\nCompany of all Employee's right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world,\nincluding the right to prepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not,\nthat have been conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee's employment by the\nCompany; provided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or that is\nthe subject of a contract preventing Employee's disclosure of the information to the Company.\n21. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee's employment with the Company, the Company will provide Employee Confidential\nInformation, which Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company's trade secrets\nand with other Confidential Information concerning the Company and that Employee's services shall be of special, unique and extraordinary\nvalue to the Company, and therefore, the Employee agrees that some restrictions on Employee's activities during and after Employee's\nemployment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee's employment by the Company and, if Employee's employment with the Company\nterminates for any reason, for a period of one (1) year thereafter ("Covenant Period"), except with the written consent of the Board, Employee\nshall not directly or indirectly, own, control, finance or participate in the ownership, control or financing of, or be employed by or provide\nservices to, any Competitor. For the purposes of this Agreement, a "Competitor" is defined as a person, business or enterprise (including\ndivisions of persons, businesses and enterprises) that directly or indirectly engages in services of the type conducted, authorized, offered or\nprovided by the Company (the "Restricted Business") in the Territory. Without limiting the foregoing, for purposes of this Agreement, each\nentity listed on Attachment B, as shall be modified from time to time by the Company upon written notice to Employee, shall constitute a\n"Competitor." For purposes of this Agreement, "Territory" is defined as the territory or territories within which Employee actually worked, or in\nrespect of which Employee was involved in providing services, during the twelve (12) month period prior to Employee's Termination Date.\nNotwithstanding the foregoing, nothing herein shall prevent Employee from providing services to, or being employed by, or owning, controlling,\nfinancing or participating in the ownership, control or financing of, any diversified entity or other person (other than the entities listed on\nAttachment B) that is engaged in the Restricted Business, so long as (i) the Restricted Business does not constitute greater than 25% of the\naggregate revenue of such diversified entity or other person and (ii) Employee is not employed within and does not have\n-11-\ninvolvement with business development or business strategy with respect to the Restricted Business. In further consideration for the Company's\npromises herein, Employee agrees that during the Covenant Period, Employee will not directly or indirectly (i) solicit, entice, induce, cause,\nencourage or recruit any part-time or full-time employee, representative, consultant, customer, subscriber or supplier of the Company or its\nsubsidiaries or affiliates to work for, provide services to or do business with a third party other than the Company or its subsidiaries or affiliates\nor engage in any activity that would cause any employee, representative, consultant, customer, subscriber or supplier to violate any agreement\nwith the Company or its subsidiaries or affiliates or otherwise terminate or change its relationship with the Company or its subsidiaries or\naffiliates or (ii) hire any current or former part-time or full-time employee, representative or consultant of the Company or its Affiliates who was\nemployed or engaged by the Company or its subsidiaries or affiliates at any time during the twelve (12) month period prior to Employee's\nTermination Date or who thereafter becomes employed or engaged by the Company or its subsidiaries or affiliates.\n(b) The foregoing restrictions shall not be construed to prohibit Employee's ownership of less than one percent (1%) of any\nclass of securities of any corporation that is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the\nSecurities Exchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any\ngroup of persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees\nany of its financial obligations, otherwise takes any part in its business, other than exercising Employee's rights as a stockholder, or seeks to do\nany of the foregoing.\n22. Employee Representations.\n(a)\nEmployee represents and warrants that this Agreement and his employment by the Company does not conflict with\nand\nwill not be constrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary\ninformation arising out of any prior business relationship or contract that, in Employee's best judgment would be utilized in connection with\nEmployee's employment with the Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary\ninformation to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into\nthis Agreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) Employee\nhas been advised by the Company to consult Employee's own legal counsel in respect of this Agreement, and Employee has had full opportunity,\nprior to execution of this Agreement, to review thoroughly this Agreement with Employee's counsel; (iii) the restrictions imposed on Employee\nby this Agreement are fair, reasonable and proper and required for the protection of the Company's business interests, particularly its investments\nin Employee (e.g., Employee's job knowledge and skills), its Confidential Information, as well as the goodwill developed, and its business\nrelationships, with its clients, customers and prospective clients and customers; (iv) the Company would not have entered into this Agreement in\nthe\nabsence\nof\nsuch\nrestrictions,\nand\nthat\nany\nviolation\nof\nany\nprovision\nof\nSections\n19,\n20\nor\n21\nhereof\nwill\nresult\nin\nirreparable\ninjury\nto\nthe\nCompany; and (v) the restrictions imposed on Employee by this Agreement, particularly, the post-termination restrictions, shall not preclude\nEmployee from earning a living or engaging in Employee's profession or trade, or pursuing a career or a business, in each case at the same\ngeneral level of economic benefit as is currently the case.\n23. Consequences of Breach of Covenants; Equitable Relief.\n(a) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity\nof proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 19,\n20, and 21 hereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The\nperiod of the injunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of\nSections 19, 20, and 21 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable\nlaw in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other\nlimitations permitted by applicable law.\n-12-\n(b) Notwithstanding anything to the contrary herein, Employee acknowledges and agrees that the severance payments and\nbenefits\nprovided herein are being provided by the Company to Employee, among other things, as additional consideration and solely for\nEmployee's agreement with and adherence to the post-employment restrictive covenants in Section 21 (a)-(c) and Employee's other promises,\ncovenants, commitments and obligations in this Agreement (including the releases granted in Section 13), the adequacy and sufficiency of which\nEmployee expressly acknowledges. Employee agrees that should the Company, in its sole discretion, deem Employee to be in violation of any\nprovision(s) in said Section 21 (a)-(c), the Company may immediately cease payment of all or any portion of the severance payments and\nbenefits provided hereunder. Employee acknowledges that the severance payments and benefits provided for herein are in addition to anything of\nvalue to which Employee was already entitled.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section\n19, 20, and 21 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or\nother equitable relief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction\nor will not accept jurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court\nin any such suit, action or proceeding, and (iii) waives any objection that Employee may have to the laying of venue of any such suit, action or\nproceeding in any such court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other\npapers in a manner permitted by the notice provisions of Section 26 hereof.\n24. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee's employment with the\nCompany; provided, however, that after the termination of Employee's employment during the term of this Agreement, this Agreement shall\nremain in effect until all of the obligations of the Parties hereunder are satisfied or have expired.\n25. Successor Company.. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance\nsatisfactory to Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance\nwith the terms hereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the\nsame extent that the Company would be required to perform if no such succession or successions had taken place. Failure of the Company\nto\nobtain\nsuch\nagreement\nprior\nto\nthe\neffectiveness\nof\nany\nsuch\nsuccession\nshall\nbe\na\nbreach\nof\nthis\nAgreement.\nAs\nused\nin\nthis\nAgreement,\nthe\nCompany shall mean the Company as hereinbefore defined and any such successor or successors to its business and/or assets, jointly and\nseverally.\n26. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith\nshall be in writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express\ncourier service, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n-13-\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in\nthe\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the\nlast address of the Company or to any successor pursuant to this Section 26 shall be deemed sufficient for the purposes hereof. Any such notice\nshall be deemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S.\nPostal Service in the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n27. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving\neffect to any conflict of laws provisions.\n28.\nContents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Code of Ethics, supersedes all prior agreements with respect to the subject matter hereof,\nsets forth the entire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended\nor terminated except upon written amendment executed by Employee and executed on the Company's behalf by a duly authorized officer, except\nfor\nrevisions\nor\nadditions to Attachment B, which may be unilaterally modified by the Company upon written notice to Employee[; provided,\nhowever, that this Agreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award\nagreements regarding stock options, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance\nunits or other stock-based awards issued to Employee prior to the effective date of this Agreement]. The provisions of this Agreement may\nprovide for payments to Employee under certain compensation or bonus plans under circumstances where such plans would not provide for\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in\nsuch plans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company,\nthe\nCompany's Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in\nthe imposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company,\nor as changing or modifying the "at will" nature of Employee's employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by\nthe respective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee's Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee's devises, legates or other designees or, if\nthere is no such designee, to Employee's estate.\n29.\nSeverability.. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted,\nand the remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n30. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other\nright or remedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given\nhereunder or now or hereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder\nor\nexisting at law or in equity shall be construed as a waiver thereof.\n31. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of\nwhich is an original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the\nother counterparts.\n-14-\n32. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of Section 409A of the Code to the extent\napplicable or to be exempt from Section 409A of the Code pursuant to the "'short-term deferral exception" under Treas. Reg. section 1.409A-1(b)\n(4) or the "separation pay exception" under Treas. Reg. Section 1.409A-1(b)(9)(iii), and shall in all respects be administered and construed in\naccordance\nwith\nSection\n409A\nof\nthe\nCode.\nIf\nany\npayment\nor\nbenefit\nhereunder\ncannot\nbe\nprovided\nor\nmade\nat\nthe\ntime\nspecified\nherein\nwithout\nincurring sanctions on Employee under Section 409A of the Code, then such payment or benefit shall be provided in full at the earliest time\nthereafter when such sanctions will not be imposed. For purposes of Section 409A of the Code, all payments to be made upon a Termination\nof\nEmployment under this Agreement may only be made upon a "separation from service" (within the meaning of such term under Section\n409A\nof\nthe Code), each payment made under this Agreement shall be treated as a separate payment, the right to a series of installment payments under\nthis Agreement is to be treated as a right to a series of separate payments, and if a payment is not made by the designated payment date under this\nAgreement, the payment shall be made by December 31 of the calendar year in which the designated date occurs. To the extent that any\npayment\nprovided for hereunder would be subject to additional tax under Section 409A of the Code, or would cause the administration of this Agreement\nto fail to satisfy the requirements of Section 409A of the Code, such provision shall be deemed null and void to the extent permitted by\napplicable law, and, to the extent applicable, any such amount shall be payable in accordance with Section 32(b). In no event shall the Employee,\ndirectly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and form of\npayment of any amounts or payments of "deferred compensation" (as defined under Treas. Reg. Section 1.409A-1(b)(1), after giving effect to\nthe\nexemptions in Treas. Reg. Sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement between\nthe Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b)\nPayment Delay.. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement\nof\nany\npayments or benefits otherwise payable under this Agreement as a result of Employee's "separation from service" with the Company to prevent\nthe imposition of any accelerated or additional tax under Section 409A of the Code, then the Company will postpone the commencement of the\npayment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to\nEmployee) that are not otherwise paid within the "short-term deferral exception" under Treas. Reg. Section 1.409A-1(b)(4) and the "separation\npay exception" under Treas. Reg. Section 1.409A-1(b)(9)(iii) until the first payroll date that occurs after the date that is six months following\nEmployee's "separation of service" with the Company. If any payments are postponed due to such requirements, such postponed amounts will be\npaid to Employee in a lump sum on the first payrol date that occurs after the date that is six months following Employee's "separation of\nservice" with the Company. If Employee dies during the postponement period prior to the payment of the postponed amount, the amounts\nwithheld on account of Section 409A of the Code shall be paid to the personal representative of Employee's estate within sixty (60) days after the\ndate of the Employee's death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the\nrequirements of Section 409A of the Code, including where applicable, the requirement that (i) any reimbursement is for expenses incurred\nduring Employee's lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for\nreimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement\nof an eligible expense will be made on or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the\nright to reimbursement is not subject to liquidation or exchange for another benefit.\n33. Recoupment Policy.. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any\nclawback or recoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without\nnotice (the "Recoupment Policy") to further the Company's interests in enhancing its corporate governance practices and/or to comply with\napplicable law, rules or regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on\nwhich shares of the common stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the\nCompany may seek to recoup all or part of any severance payments, bonus or other\n-15-\nincentive compensation paid to certain officers and former officers, including Equity Awards, in the event that the Company is required to restate\nits financial statements. In consideration of the [continued] benefits to be received from the Company (or a subsidiary) and the right to participate\nin, and receive future awards under, the Company's cash and equity-based incentive programs, Employee hereby acknowledges, understands and\nagrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards,\npaid or awarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent\nprovided in the Recoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this\nAgreement or hereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy\neven if the Recoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms,\nand Employee promptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the\nRecoupment Policy for repayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity\nAwards, subject to the Recoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and\nEmployee is not waiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment\nPolicy, other than (i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards\nand (ii) waiving any claim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n-16-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above\nwritten.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nName:\nTitle:\n[NAME OF EXECUTIVE]\n-17-\nATTACHMENT A\n1.\nThe following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed,\nauthored, created, drawn or written by me alone or jointly with others prior to my engagement by the Company.\nNone.\nDue to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be\nincluded on the above-described list.\nAdditional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n-18-\nATTACHMENT B - List of Direct Competitors\n1.\nInternational Business Machines Corporation\n2.\nAccenture LTD\n3.\nCap Gemini S.A.\n4.\nTata Consultancy Services\n5.\nInfosys Limited\n6.\nWipro Limited\n7.\nHCL Technologies Limited\n8.\nDXC Technology Company\n-19-	EX-10 .3 2 ctshexhibit10312312017.htm EXHIBIT 10.3\nEXHIBIT 10.3\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION\nASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment\nAgreement (this “Agreement”) is made as of the ___ day of [____] 2018 (the “Effective Date”) by and between Cognizant Technology Solutions\nCorporation, a Delaware corporation (the “Company” (where applicable, the definition of Company shall include the Company’s subsidiaries and\naffiliates and any successors or assigns)), and [_____] (“Employee”).\n[WHEREAS, Employee is currently employed by the Company as its [_____]; [and]]\nWHEREAS, the Company desires to [continue to] retain the services of Employee; [and]\n[WHEREAS, the Parties desire to amend and restate, in its entirety, the parties’ prior agreements pertaining to Employee’s\nemployment, and set forth the new terms and conditions of Employee’s employment by the Company.]\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and\nintending to be legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:\n1. Definitions.\n(a) “Annual Base Salary” shall mean the rate of annual base salary paid or payable to Employee by the Company (including\nauthorized deferrals and salary reduction amounts) immediately prior to Employee’s Termination Date.\n(b) “Board” shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) “Cause” shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee’s supervisor, (iii) failure by the Employee to observe\nmaterial policies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor\ninvolving moral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) “Disability” means Employee’s total and permanent disability as determined in accordance with the Company’s long-term\ndisability policy, whether or not Employee is covered by such policy.\n(f) “Good Reason” means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee’s authority, duties or responsibilities;\n(ii) A material diminution in Employee’s overall compensation package, which is not otherwise caused by an overall\npolicy by the Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee’s consent, in the principal place of work of the Employee to a location that is more\nthan 50 miles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement\nrelied upon and (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee’s employment under\nthe provision so indicated.\n(h) “Termination Date” shall mean the last day of Employee’s employment with the Company.\n(i) “Termination of Employment” shall mean the termination of Employee’s active employment relationship with the\nCompany.\n2. Employment. The Company hereby [employs][continues to employ] Employee, and Employee hereby [accepts][continues to\naccept] such employment, upon the terms and conditions set forth herein.\n3. Duties.\n(a) Position. Employee [shall be][continues to be] employed as [_____] and shall have the duties and responsibilities\nassigned by [_____] upon initial hire and from time to time thereafter. Employee shall perform faithfully and diligently all duties assigned to\nEmployee. The Company reserves the right to modify Employee’s position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [_____] or such other\nposition of a similar or more senior level.\n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee’s best efforts and\nentire business time and attention to the Company’s business during the term of Employee’s employment with the Company. Employee agrees\nthat, during the term of Employee’s employment, except as otherwise approved in writing by the Company, which approval the Company may in\nits absolute discretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction\nwith any person, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or\nentity other than the Company; provided that the foregoing is not intended to prevent an Employee from pursuing hobbies or participating in any\nother activity that is not to the detriment of the Company. Employee further acknowledges and agrees that Employee has access to the\nCompany’s Core Values & Code of Ethics (the “Code of Ethics”) located at www.cognizant.com, and Employee has read and understands the\nCode of Ethics and shall abide by all the terms of said Code of Ethics, as may be amended from time to time, and said Code of Ethics shall be\nincorporated into this Agreement. Employee will abide by all policies and decisions made by the Company, as well as all applicable federal, state\nand local laws, regulations or ordinances. Employee will act in the best interest of the Company at all times.\n(c) Work Location. Employee’s principal place of work shall be located in [_____], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee’s employment with the Company will be “at will,” meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, the Company shall\npay to Employee a base salary as most recently determined by the Compensation\n-2-\nCommittee of the Board and last communicated to the Employee, as may be modified by the Compensation Committee of the Board, payable in\naccordance with the normal payroll practices of the Company, less required deductions for state and federal withholding tax, social security and\nall other employment taxes and payroll deductions. In the event Employee’s employment under this Agreement is terminated by either Party, for\nany reason, Employee will earn the Annual Base Salary prorated to Employee’s Termination Date.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation\nCommittee of the Board in accordance with the bonus plan(s) provided to Employee by the Company, in accordance with the terms and\nconditions of such plan(s).\n(c) [Stock Options and Other Equity Awards. Except as set forth herein, this Agreement does not modify or change the\nexisting agreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an “Equity\nAward” and collectively, “Equity Awards”) previously issued to Employee.]\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to employees\nof the Company subject to the terms and conditions of the Company’s benefit plan documents. The Company reserves the right to change or\neliminate the fringe benefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance\nof Employee’s duties on behalf of the Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with the Company’s policies.\n8. Company Access. Employee agrees and consents that, during the term of Employee’s employment with the Company and\nthereafter, the Company may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and\ninternet access system provided by the Company with or without notice to Employee and that such review, audit, interception, access, or\ndisclosure may occur during or after working hours. Employee further consents and agrees that the Company may, at any time, access and review\nthe contents of all computers, computer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations\nthat are either on the Company’s premises or that are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee’s employment with the Company is involuntarily terminated by\nthe Company for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case\nEmployee’s employment termination becomes effective before any Change in Control (as defined in Section 9(d) below) has occurred following\nthe date of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does\nnot revoke the Release (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to one (1) times Employee’s Annual Base Salary, such amount to\nbe paid in regular installments in accordance with the Company’s normal payroll practices over a period of twelve (12) months, commencing on\nor as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n(ii) Employee shall receive a cash payment equal to one (1) times the amount of the Employee’s target annual bonus\nfor the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n-3-\n(iii) The Company shall, for a period of eighteen (18) months following the Employee’s Termination Date, pay the\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee\nand, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments\nspecified under this Section 9(a)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage\nterminates for any reason before the expiration of the eighteen (18)‐month period. All Company payments under this Section 9(a)(iii) to the\nEmployee can be used for any purpose and will be reported as taxable payments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company and would have vested had Employee remained employed by the Company during the twelve (12) month period following\nEmployee’s Termination Date shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such\nEquity Awards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on\nachievement of performance objective(s), to the extent that the applicable performance period has expired on or before Employee’s Termination\nDate, the performance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, the portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12)\nmonth period following Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such\nEquity Award shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(a)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary\nTermination that becomes effective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in\nControl following the date of this Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in\nlieu of, and not in addition to, the payments and benefits described in Section 9(a); provided that Employee executes and does not revoke the\nRelease (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to two (2) times Employee’s Annual Base Salary, such amount to\nbe paid in regular installments in accordance with the Company’s normal payroll practices over a period of twenty-four (24) months,\ncommencing on or as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s\nTermination Date.\n(ii) Employee shall receive a cash payment equal to two (2) times the amount of the Employee’s target annual bonus\nfor the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n(iii) The Company shall, for a period of eighteen (18) months following the date of Employee’s Termination of\nEmployment, pay Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical\nplan for Employee and, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable,\nEmployee’s spouse and dependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further\nthat the payments specified under this Section 9(b)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare\ncontinuation coverage terminates for any reason before the expiration of the eighteen (18)‐month\n-4-\nperiod. All Company payments under this Section 9(a)(iii) to the Employee can be used for any purpose and will be reported as taxable\npayments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity\nAwards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of\nperformance objectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, such Equity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of\nclosing of the Change in Control, make a good faith determination of the level of achievement of such pro-rated performance objective\nas of such closing date, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the\nlevel of achievement of the pro-rated performance objective, disregarding any future service conditions that otherwise would apply to\nsuch Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(c) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to\nthe other Party hereto given in accordance with Section 26 hereof.\n(d) Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall have the meaning\nset forth in the Company’s 2017 Incentive Award Plan, as amended from time to time or any successor plan in effect as of Employee’s\nTermination Date.\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the\nexpiration of the cure period and Employee’s actual termination as described below, such resignation shall be deemed an Involuntary Termination\nfor purposes of this Agreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set\nforth in this Agreement, including Section 13. Employee must provide written notice to the Company of his intent to terminate his employment\nfor Good Reason within thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have\na period of thirty (30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in\nEmployee’s notice of termination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period,\nEmployee must terminate his employment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the\ntermination to be considered a Good Reason termination under this Agreement.\n11. Termination Due to Death. If Employee’s employment with the Company is terminated due to death, Employee shall be entitled to\nthe payments and benefits described below, provided that Employee’s estate executes and does not revoke the Release (as defined in Section 13)\nand the Release first becomes effective:\n(a) Employee shall receive a cash payment equal to (1) times the amount of the Employee’s target annual bonus for the\nperformance year in which the Employee’s Termination Date occurs, pro-rated based on\n-5-\nthe portion of such year that has elapsed as of Employee’s Termination Date. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(b) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the\nCompany shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity Awards\nshall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(c) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(i) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future\ndates, such Equity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(ii) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to Employee’s\nTermination Date, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Termination\nDate, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of\nthe pro-rated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(d) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 11(d) are not conditioned upon the Release becoming effective unless the applicable\nbenefit plan or program provides otherwise.\n12. Termination Due to Disability or For Cause. If Employee’s employment with the Company is terminated by the Company due to\nDisability or for Cause, Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany; all other Company obligations to Employee will be extinguished as of the Termination Date.\n13. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9, 10 and 11, as applicable\n(except for those payments that are owed pursuant to applicable law and/or are specifically not conditioned upon the execution of a release by\nEmployee or Employee’s estate, as applicable), unless Employee or his estate, if applicable, executes, and does not revoke, the Company’s then\nstandard written general release (the “Release”) of any and all claims against the Company and all related parties with respect to all matters\narising out of Employee’s employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans\nor programs of the Company in which Employee participated and under which Employee has accrued and earned a benefit) or the termination\nthereof. The Company will provide Employee with the form of release agreement within seven days after Employee’s separation from service. To\nbe entitled to the severance or other benefits, Employee must execute and deliver to the Company the release agreement on or before the last day\nof the minimum required waiver consideration period provided under the Age Discrimination in Employment Act or other applicable law or such\nlater date specified in the release agreement. If Employee timely delivers an executed release agreement to the Company, and Employee does not\nrevoke the release agreement during the minimum revocation period required under applicable law, if any, the severance or other benefits shall be\npaid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to Section 32(b) of this Agreement. If,\nhowever, the period during which Employee has discretion to execute or revoke the release agreement straddles two calendar years, the cash\nseverance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of the two calendar years,\nregardless of within which calendar\n-6-\nyear Employee actually delivers the executed release agreement to the Company, subject to the release agreement first becoming effective.\nConsistent with section 409A of the Code, Employee may not, directly or indirectly, designate the calendar year of payment. Nothing in this\nSection 13 shall be construed to alter the terms of this Agreement that condition Employee’s entitlement to any severance or other benefits upon\nEmployee’s compliance with the restrictive covenants and any other terms and conditions specified in this Agreement.\n14. Other Payments. Any payments and benefits that become due under Sections 9, 10 and 11 hereof shall be in addition to (but not in\nduplication of) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except\nthat Employee shall not be entitled to any payments and benefits under the Company’s then current severance pay policies.\n15. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by\nseeking other employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation\nearned by other employment or otherwise; provided, however, that any obligation of the Company to make the payments described in Sections\n9(a)(iii) and 9(b)(iii) shall cease upon Employee becoming covered under a healthcare plan of another employer.\n16. Non-Exclusivity of Rights. Except as provided in Section 14, nothing in this Agreement shall prevent or limit Employee’s\n[continuing or] future participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of\nits subsidiaries or affiliates and for which Employee may qualify.\n17. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company’s obligation to make the\npayments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances,\nincluding, without limitation, any set-off, counterclaim, recoupment, defense or other right that the Company may have against Employee or\nothers.\n18. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold\nfrom any payments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or\ngovernmental rule or regulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due\nwith respect to any payment received under this Agreement, including, without limitation, any excise tax imposed by Section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the\ntermination of Employee’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or any other plan,\narrangement or agreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”), would constitute a\n“parachute payment” under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum\namount necessary to result in no portion of the Total Payments being non‐deductible to the Company pursuant to Section 280G of the Code or\nsubject to the excise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 18, including whether a reduction in Total Payments is\nrequired, the amount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting\nor law firm of recognized standing reasonably selected by the Company (the “Firm”), which may be, but will not be required to be, the\nCompany’s independent auditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the\nCompany within fifteen (15) days after receipt of a notice from either the Company or Employee that Employee may receive payments that may\nbe “parachute payments.” If the Firm determines that a reduction is required by this Section 18, the Contract Payments consisting of cash\nseverance shall be reduced to the extent necessary so that no portion of the Total Payments shall be subject to the excise tax imposed by section\n4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If additional\nContract Payments must be reduced pursuant to this Section 18 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the\n-7-\nContract Payments allocable to time-vested Equity Awards, to the extent necessary to satisfy the requirements of this Section 18.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the\npossession of Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in\nconnection with the preparation and issuance of the determinations and calculations contemplated by this Section 18. The fees and expenses of\nthe Firm for its services in connection with the determinations and calculations contemplated by this Section 18 shall be borne by the Company.\n19. Confidential Information. Employee agrees that Employee’s services to the Company [have been and will continue to be][will be]\nof a special, unique and extraordinary character, and that Employee’s position places Employee in a position of confidence and trust with the\nCompany’s customers and employees. Employee also recognizes that Employee’s position with the Company will give Employee substantial\naccess to Confidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to\nsuffer substantial and irreparable damage. Employee recognizes, therefore, that it is in the Company’s legitimate business interest to restrict\nEmployee’s use of Confidential Information for any purposes other than the discharge of Employee’s employment duties at the Company, and to\nlimit any potential appropriation of Confidential Information by Employee for the benefit of the Company’s competitors and to the detriment of\nthe Company. Accordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee’s employment, reveal to any person\nor entity any of the trade secrets or confidential information of the Company or of any third party that the Company is under an obligation to\nkeep confidential (including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-\nhow, techniques, systems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) (“Confidential\nInformation”), except as may be required in the ordinary course of performing Employee’s duties as an employee of the Company, and Employee\nshall keep secret all matters entrusted to Employee and shall not use or attempt to use any such information in any manner that may injure or\ncause loss or may be calculated to injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation,\nConfidential Information also includes any and all information, whether or not meeting the legal definition of a trade secret, concerning the\nCompany’s actual, planned or contemplated: (i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii)\npersonnel information; (iii) customer, vendor and supplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts,\nvolumes, characteristics, agreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business\noperations, internal structures and financial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company’s\nservices and products; (ix) proposed services and products; (x) contracts with other parties; (xi) performance characteristics of the Company’s\nproducts; and (xii) Inventions and Works (each as defined in Section 20). Confidential Information also includes any and all information of\nCompany’s clients and customers that is deemed confidential by such clients and customers (whether past, present or potential), including, but\nnot limited to: marketing tools, inventions, processes, contact lists, materials, software program code, logic diagrams, flow charts, procedural\ndiagrams, computer programming techniques and know how, maps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no\nfault of Employee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any\nconfidentiality obligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that\nEmployee is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt\nnotice of such request(s) so that the Company may seek an appropriate protective order or other appropriate remedy and/or waive compliance\nwith the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or the Company\ngrants a waiver hereunder, Employee may furnish that portion (and only that portion) of the Confidential Information that Employee is legally\n-8-\ncompelled to disclose and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any\nConfidential Information so furnished.\n(c) Further, Employee agrees that during Employee’s employment Employee shall not take, use or permit to be used any\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any\nnature relating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the\nbenefit of the Company. Employee further agrees that Employee shall not, after the termination of Employee’s employment, use or permit to be\nused any such notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other\nmaterials, it being agreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately\nupon the termination of Employee’s employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all\ncopies thereof, to the Company, at its main office.\n(d) Employee agrees that upon the termination of Employee’s employment with the Company, Employee will not take or\nretain without written authorization any documents, files or other property of the Company, and Employee will return promptly to the Company\nany such documents, files or property in Employee’s possession or custody, including any copies thereof maintained in any medium or format.\nEmployee recognizes that all documents, files and property that Employee has received and will receive from the Company, including but not\nlimited to scientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of\ndocuments relating to benefits to which Employee might be entitled following the termination of Employee’s employment with the Company),\nare for the exclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee\nhas no claim or right to the continued use, possession or custody of such documents, files or property following the termination of Employee’s\nemployment with the Company.\n(e) Employee acknowledges that the Company has provided Employee with the following notice of immunity rights in\ncompliance with the requirements of the Defend Trade Secrets Act of 2016: (i) Employee shall not be held criminally or civilly liable under any\nU.S. federal or state trade secret law for the disclosure of Confidential Information that is made in confidence to a U.S. federal, state or local\ngovernment official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; (ii) Employee shall not be\nheld criminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of Confidential Information that is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (iii) if Employee files a lawsuit for\nretaliation by the Company for reporting a suspected violation of law, Employee may disclose the Confidential Information to Employee’s\nattorney and use the Confidential Information in the court proceeding, if Employee files any document containing the Confidential Information\nunder seal, and does not disclose the Confidential Information, except pursuant to court order. However, under no circumstance will Employee be\nauthorized to disclose any information covered by attorney-client privilege or attorney work product of the Company without prior written\nconsent of the Company’s General Counsel or other officer designated by the Company. Notwithstanding anything to the contrary contained\nherein, no provision of this Agreement shall be interpreted so as to impede Employee (or any other individual) from reporting possible violations\nof U.S. federal law or regulation to any governmental agency or entity, including but not limited to the U.S. Department of Justice, the U.S.\nSecurities and Exchange Commission, the U.S. Congress, and any agency Inspector General of the U.S. government, or making other disclosures\nunder the whistleblower provisions of U.S. federal law or regulation. Employee does not need the prior authorization of the Company to make\nany such reports or disclosures and Employee shall not be not required to notify the Company that such reports or disclosures have been made.\n20. Intellectual Property.\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as\ndefined below) that are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is\nemployed by the Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and\ncurrent written records of all\n-9-\nInventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program code,\nprocedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, along with all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that “Inventions,” is defined in this Agreement to include any and all new or useful\nideas, developments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual\nproperty, whether patentable or not (including without limitation any technology, computer programs, software, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter,\nformula or technique), and all know-how related thereto, that Employee conceives, makes, reduces to practice, or develops, solely or jointly with\nothers (i) that relate to the actual or contemplated business, work or activities of the Company, (ii) that result from or are suggested by any work\nwhich Employee [has done or] may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s\nemployment by the Company, or (iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee\nwas paid by the Company, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the\nCompany.\n(c) The Company and Employee agree that “Works” is defined in this Agreement to include any and all materials for which\ncopyright protection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask\nworks, artistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code,\nlogic diagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other\naudio-visual works that Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) that relate to the actual or\ncontemplated business, work or activities of the Company, (ii) that result from or are suggested by any work which Employee has done or may\ndo on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by the Company, or\n(iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with\nthe use of premises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the\nrights, titles and interests in and to any and all such Inventions and Works that Employee [has or] may acquire in such Inventions or Works that\nare conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the\nCompany and for a period of six (6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights,\ntrademarks and other intellectual property rights in connection therewith, and agrees to take all such actions as may be requested by the Company\nduring Employee’s employment with the Company and at any time thereafter, with respect to any such Inventions or Works to confirm or\nevidence such assignment, transfer, conveyance or ownership, and to assist in the Company’s maintenance, enforcement, license, assignment,\ntransfer, or conveyance of rights in respect of the Inventions or Works.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee\nagrees to execute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence\nand do any and all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment,\ntransfer and conveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents,\ntrademarks, copyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or\nto obtain any extension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right.\nBy way of further example and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of\ninitiating, maintaining or defending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other\nproceedings as requested by the Company. In the event that the Company may be unable, for\n-10-\nany reason whatsoever, after reasonable effort, to secure Employee’s signature on any patent, copyright, trademark or other intellectual property\napplication or other papers, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents, as\nEmployee’s agent and attorney-in-fact to act for and on behalf of Employee to execute, acknowledge, swear to, seal and deliver to the Company\nand to file any such application or applications or other papers, and to do all other lawfully permitted acts to further the provisions of this Section\n20 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the\nprovisions of Sections 20(d) and 20(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional\ncompensation beyond that paid to Employee for the period of time that he is employed by the Company, which compensation, along with the\nCompany’s understandings set forth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises\nand obligations set forth in this Agreement.\n(g) Employee expressly acknowledges and states that all Works that are made by Employee (solely or jointly with others) are\nbeing created at the instance of the Company and are “works made for hire,” as that term is defined in the Copyright Act of 1976, 17 USC § 101.\nIn the event that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent\njurisdiction not to be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to the\nCompany of all Employee’s right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world,\nincluding the right to prepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not,\nthat have been conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee’s employment by the\nCompany; provided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or that is\nthe subject of a contract preventing Employee’s disclosure of the information to the Company.\n21. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee’s employment with the Company, the Company will provide Employee Confidential\nInformation, which Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company’s trade secrets\nand with other Confidential Information concerning the Company and that Employee’s services shall be of special, unique and extraordinary\nvalue to the Company, and therefore, the Employee agrees that some restrictions on Employee’s activities during and after Employee’s\nemployment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee’s employment by the Company and, if Employee’s employment with the Company\nterminates for any reason, for a period of one (1) year thereafter (“Covenant Period”), except with the written consent of the Board, Employee\nshall not directly or indirectly, own, control, finance or participate in the ownership, control or financing of, or be employed by or provide\nservices to, any Competitor. For the purposes of this Agreement, a “Competitor” is defined as a person, business or enterprise (including\ndivisions of persons, businesses and enterprises) that directly or indirectly engages in services of the type conducted, authorized, offered or\nprovided by the Company (the “Restricted Business”) in the Territory. Without limiting the foregoing, for purposes of this Agreement, each\nentity listed on Attachment B, as shall be modified from time to time by the Company upon written notice to Employee, shall constitute a\n“Competitor.” For purposes of this Agreement, “Territory” is defined as the territory or territories within which Employee actually worked, or in\nrespect of which Employee was involved in providing services, during the twelve (12) month period prior to Employee’s Termination Date.\nNotwithstanding the foregoing, nothing herein shall prevent Employee from providing services to, or being employed by, or owning, controlling,\nfinancing or participating in the ownership, control or financing of, any diversified entity or other person (other than the entities listed on\nAttachment B) that is engaged in the Restricted Business, so long as (i) the Restricted Business does not constitute greater than 25% of the\naggregate revenue of such diversified entity or other person and (ii) Employee is not employed within and does not have\n-11-\ninvolvement with business development or business strategy with respect to the Restricted Business. In further consideration for the Company’s\npromises herein, Employee agrees that during the Covenant Period, Employee will not directly or indirectly (i) solicit, entice, induce, cause,\nencourage or recruit any part-time or full-time employee, representative, consultant, customer, subscriber or supplier of the Company or its\nsubsidiaries or affiliates to work for, provide services to or do business with a third party other than the Company or its subsidiaries or affiliates\nor engage in any activity that would cause any employee, representative, consultant, customer, subscriber or supplier to violate any agreement\nwith the Company or its subsidiaries or affiliates or otherwise terminate or change its relationship with the Company or its subsidiaries or\naffiliates or (ii) hire any current or former part-time or full-time employee, representative or consultant of the Company or its Affiliates who was\nemployed or engaged by the Company or its subsidiaries or affiliates at any time during the twelve (12) month period prior to Employee’s\nTermination Date or who thereafter becomes employed or engaged by the Company or its subsidiaries or affiliates.\n(b) The foregoing restrictions shall not be construed to prohibit Employee’s ownership of less than one percent (1%) of any\nclass of securities of any corporation that is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the\nSecurities Exchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any\ngroup of persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees\nany of its financial obligations, otherwise takes any part in its business, other than exercising Employee’s rights as a stockholder, or seeks to do\nany of the foregoing.\n22. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and\nwill not be constrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary\ninformation arising out of any prior business relationship or contract that, in Employee’s best judgment would be utilized in connection with\nEmployee’s employment with the Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary\ninformation to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into\nthis Agreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) Employee\nhas been advised by the Company to consult Employee’s own legal counsel in respect of this Agreement, and Employee has had full opportunity,\nprior to execution of this Agreement, to review thoroughly this Agreement with Employee’s counsel; (iii) the restrictions imposed on Employee\nby this Agreement are fair, reasonable and proper and required for the protection of the Company’s business interests, particularly its investments\nin Employee (e.g ., Employee’s job knowledge and skills), its Confidential Information, as well as the goodwill developed, and its business\nrelationships, with its clients, customers and prospective clients and customers; (iv) the Company would not have entered into this Agreement in\nthe absence of such restrictions, and that any violation of any provision of Sections 19, 20 or 21 hereof will result in irreparable injury to the\nCompany; and (v) the restrictions imposed on Employee by this Agreement, particularly, the post-termination restrictions, shall not preclude\nEmployee from earning a living or engaging in Employee’s profession or trade, or pursuing a career or a business, in each case at the same\ngeneral level of economic benefit as is currently the case.\n23. Consequences of Breach of Covenants; Equitable Relief.\n(a) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity\nof proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 19,\n20, and 21 hereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The\nperiod of the injunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of\nSections 19, 20, and 21 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable\nlaw in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other\nlimitations permitted by applicable law.\n-12-\n(b) Notwithstanding anything to the contrary herein, Employee acknowledges and agrees that the severance payments and\nbenefits provided herein are being provided by the Company to Employee, among other things, as additional consideration and solely for\nEmployee’s agreement with and adherence to the post-employment restrictive covenants in Section 21 (a)-(c) and Employee’s other promises,\ncovenants, commitments and obligations in this Agreement (including the releases granted in Section 13), the adequacy and sufficiency of which\nEmployee expressly acknowledges. Employee agrees that should the Company, in its sole discretion, deem Employee to be in violation of any\nprovision(s) in said Section 21 (a)-(c), the Company may immediately cease payment of all or any portion of the severance payments and\nbenefits provided hereunder. Employee acknowledges that the severance payments and benefits provided for herein are in addition to anything of\nvalue to which Employee was already entitled.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section\n19, 20, and 21 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or\nother equitable relief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction\nor will not accept jurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court\nin any such suit, action or proceeding, and (iii) waives any objection that Employee may have to the laying of venue of any such suit, action or\nproceeding in any such court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other\npapers in a manner permitted by the notice provisions of Section 26 hereof.\n24. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee’s employment with the\nCompany; provided, however, that after the termination of Employee’s employment during the term of this Agreement, this Agreement shall\nremain in effect until all of the obligations of the Parties hereunder are satisfied or have expired.\n25. Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance\nsatisfactory to Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance\nwith the terms hereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the\nsame extent that the Company would be required to perform if no such succession or successions had taken place. Failure of the Company to\nobtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the\nCompany shall mean the Company as hereinbefore defined and any such successor or successors to its business and/or assets, jointly and\nseverally.\n26. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith\nshall be in writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express\ncourier service, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n[__________]\n-13-\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the\nlast address of the Company or to any successor pursuant to this Section 26 shall be deemed sufficient for the purposes hereof. Any such notice\nshall be deemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S.\nPostal Service in the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n27. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving\neffect to any conflict of laws provisions.\n28. Contents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Code of Ethics, supersedes all prior agreements with respect to the subject matter hereof,\nsets forth the entire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended\nor terminated except upon written amendment executed by Employee and executed on the Company’s behalf by a duly authorized officer, except\nfor revisions or additions to Attachment B, which may be unilaterally modified by the Company upon written notice to Employee[; provided,\nhowever, that this Agreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award\nagreements regarding stock options, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance\nunits or other stock-based awards issued to Employee prior to the effective date of this Agreement]. The provisions of this Agreement may\nprovide for payments to Employee under certain compensation or bonus plans under circumstances where such plans would not provide for\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in\nsuch plans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany’s Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in\nthe imposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company,\nor as changing or modifying the “at will” nature of Employee’s employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by\nthe respective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee’s Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devises, legates or other designees or, if\nthere is no such designee, to Employee’s estate.\n29. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted,\nand the remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n30. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other\nright or remedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given\nhereunder or now or hereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or\nexisting at law or in equity shall be construed as a waiver thereof.\n31. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of\nwhich is an original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the\nother counterparts.\n- 14-\n32. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of Section 409A of the Code to the extent\napplicable or to be exempt from Section 409A of the Code pursuant to the “short-term deferral exception” under Treas. Reg. section 1.409A-1(b)\n(4) or the “separation pay exception” under Treas. Reg. Section 1.409A-1(b)(9)(iii), and shall in all respects be administered and construed in\naccordance with Section 409A of the Code. If any payment or benefit hereunder cannot be provided or made at the time specified herein without\nincurring sanctions on Employee under Section 409A of the Code, then such payment or benefit shall be provided in full at the earliest time\nthereafter when such sanctions will not be imposed. For purposes of Section 409A of the Code, all payments to be made upon a Termination of\nEmployment under this Agreement may only be made upon a “separation from service” (within the meaning of such term under Section 409A of\nthe Code), each payment made under this Agreement shall be treated as a separate payment, the right to a series of installment payments under\nthis Agreement is to be treated as a right to a series of separate payments, and if a payment is not made by the designated payment date under this\nAgreement, the payment shall be made by December 31 of the calendar year in which the designated date occurs. To the extent that any payment\nprovided for hereunder would be subject to additional tax under Section 409A of the Code, or would cause the administration of this Agreement\nto fail to satisfy the requirements of Section 409A of the Code, such provision shall be deemed null and void to the extent permitted by\napplicable law, and, to the extent applicable, any such amount shall be payable in accordance with Section 32(b). In no event shall the Employee,\ndirectly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and form of\npayment of any amounts or payments of “deferred compensation” (as defined under Treas. Reg. Section 1.409A-1(b)(1), after giving effect to the\nexemptions in Treas. Reg. Sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement between\nthe Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b) Payment Delay. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any\npayments or benefits otherwise payable under this Agreement as a result of Employee’s “separation from service” with the Company to prevent\nthe imposition of any accelerated or additional tax under Section 409A of the Code, then the Company will postpone the commencement of the\npayment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to\nEmployee) that are not otherwise paid within the “short-term deferral exception” under Treas. Reg. Section 1.409A-1(b)(4) and the “separation\npay exception” under Treas. Reg. Section 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following\nEmployee’s “separation of service” with the Company. If any payments are postponed due to such requirements, such postponed amounts will be\npaid to Employee in a lump sum on the first payroll date that occurs after the date that is six months following Employee’s “separation of\nservice” with the Company. If Employee dies during the postponement period prior to the payment of the postponed amount, the amounts\nwithheld on account of Section 409A of the Code shall be paid to the personal representative of Employee’s estate within sixty (60) days after the\ndate of the Employee’s death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the\nrequirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred\nduring Employee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for\nreimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement\nof an eligible expense will be made on or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the\nright to reimbursement is not subject to liquidation or exchange for another benefit.\n33. Recoupment Policy. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any\nclawback or recoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without\nnotice (the “Recoupment Policy”) to further the Company’s interests in enhancing its corporate governance practices and/or to comply with\napplicable law, rules or regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on\nwhich shares of the common stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the\nCompany may seek to recoup all or part of any severance payments, bonus or other\n- 15-\nincentive compensation paid to certain officers and former officers, including Equity Awards, in the event that the Company is required to restate\nits financial statements. In consideration of the [continued] benefits to be received from the Company (or a subsidiary) and the right to participate\nin, and receive future awards under, the Company’s cash and equity-based incentive programs, Employee hereby acknowledges, understands and\nagrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards,\npaid or awarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent\nprovided in the Recoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this\nAgreement or hereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy\neven if the Recoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms,\nand Employee promptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the\nRecoupment Policy for repayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity\nAwards, subject to the Recoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and\nEmployee is not waiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment\nPolicy, other than (i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards\nand (ii) waiving any claim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n-16-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above\nwritten.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nName:\nTitle:\n[NAME OF EXECUTIVE]\n- 17-\nATTACHMENT A\n1.\nThe following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed,\nauthored, created, drawn or written by me alone or jointly with others prior to my engagement by the Company.\n☐ None.\n_______________________________________________________________________\n_______________________________________________________________________\n_______________________________________________________________________\n_______________________________________________________________________\n_______________________________________________________________________\n☐\nDue to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be\nincluded on the above-described list.\n☐ Additional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n-18-\nATTACHMENT B – List of Direct Competitors\n1.\nInternational Business Machines Corporation\n2.\nAccenture LTD\n3.\nCap Gemini S.A.\n4.\nTata Consultancy Services\n5.\nInfosys Limited\n6.\nWipro Limited\n7.\nHCL Technologies Limited\n8.\nDXC Technology Company\n-19-
86700bef2a964227f73f0dcd135616f7.pdf	effective_date jurisdiction party term	EX-10.94 5 dex1094.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.94\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Agreement is between Joseph M. Squeri (hereafter “You”) and Comstock Homebuilding Companies, Inc., its affiliates, successors,\nassigns, parents and subsidiaries (hereafter “the Company”), effective this day of August, 2010. You are entering into this Agreement based on\nconsideration to You from the Company, including the grant of equity in the Company to You, Your employment and continued employment with\nthe Company, and such other benefits that You acknowledge to be sufficient consideration for this Agreement.\n1. NATURE OF AGREEMENT. You and the Company intend this Agreement to be an Agreement concerning confidentiality and non-\ncompetition/non-solicitation. This Agreement does not limit in any way the right of either You or the Company to terminate the employment\nrelationship at any time. This Agreement contains obligations that survive termination of the employment relationship between You and the\nCompany. You agree that neither the provisions set forth in this Agreement nor any other written or oral communications between the Company and\nYou about the subject matter of this Agreement as of the date of this Agreement has created or is intended to create a contract of employment or a\npromise to provide any benefits. If You and the Company enter into or have entered into an Employment Agreement, this Agreement is to be read\nand applied consistently with that Agreement.\n2. DEFINITIONS . As used in this Agreement, the following terms shall have the following meanings:\n2.1\n“Business Partner” means each and every person and/or entity who or that, at any time during the two (2) years prior to termination of\nYour employment: (i) was either a customer, lender, supplier or subcontractor of or to the Company; (ii) was in contact with You or in\ncontact with any other employee, owner, or agent of the Company, of which contact You either were involved or were or should have\nbeen aware, concerning receiving or providing any product or service from the Company; or (iii) was solicited by the Company, or in\nconsideration or planning to be solicited by the Company, in an effort in which You were involved or of which You were or should have\nbeen aware.\n2.2\n“Conflicting Services” means any service or process of any person or production homebuilding organization, other than the Company,\nsettling in excess of 250 units annually, which directly competes with the Company in the business of designing, constructing and selling\nfor-sale single-family homes, townhomes and condominiums within the Washington, D.C. metropolitan area or in any other geographic\narea where the Company is conducting operations or has demonstrable plans to commence operations within six (6) months during Your\nemployment by the Company or about which You acquire Confidential Information during Your employment by the Company.\n2.3\n“Confidential Information” means knowledge or information not generally known to the public or in the home construction industry\n(including information conceived, discovered or developed by You), that You learn of, possess, or to which You have access through\nYour employment by the Company, related to the Company or its Business Partners, including but not limited to the information\nlisted on Schedule B to this Agreement. Confidential Information shall not include information that is or becomes publicly known\nthrough no breach of this Agreement or other act or omission of the Employee. The phrase “publicly known” shall mean readily\naccessible to the public in a written publication, and shall not include information that is only available by a substantial searching of the\npublished literature, and information the substance of which must be pieced together from a number of different publications and\nsources. The burden of proving that information or skills and experience are not Confidential Information shall be on the party asserting\nsuch exclusion.\n3. RETURN OF COMPANY PROPERTY. You agree that at any time requested by the Company and/or at termination of Your employment with\nthe Company for any reason, You will promptly deliver to the Company all property and materials in any form belonging to or relating to the\nCompany, its business and the business of any Business Partner, including but not limited to, the property listed on Schedule A to this Agreement.\nYou agree not to download or keep copies of company property in any hard or soft format. You agree that You have no ownership or interest in any\nCompany property.\n4. RESTRICTIONS.\n4.1. You agree that while You are employed by the Company, You will not solicit or provide Conflicting Services except on behalf of or at\nthe direction of the Company.\n4.2 At any time during and after Your employment with the Company You agree:\n4.2.1 You will not disclose Confidential Information to any person or entity without first obtaining the Company’s consent, and will\ntake all reasonable precautions to prevent inadvertent disclosure of such Confidential Information. You agree to make every\neffort to ensure that persons working in any capacity for the Company, including without limitation employees, officers, directors,\nvendors, sub-contractors, attorneys, and agents, subsidiary or parent entities (and the employees, officers, directors, vendors,\ncontractors, attorneys, and agents, thereof) are permitted access to Confidential Information on a strictly “need to know” basis.\nThis prohibition against Your disclosure of Confidential Information includes, but is not limited to, disclosing the fact that any\nsimilarity exists between Confidential Information and information independently developed by another person or entity. You\nunderstand that the existence of such a similarity does not excuse You from honoring Your obligations under this Agreement.\n4.2.2 You will not use any Confidential Information for Your personal benefit or for the benefit of any person or entity other than the\nCompany. You will not use, copy or transfer Confidential Information other than as necessary in carrying out Your duties on\nbehalf of the Company, without first\n2\nobtaining the Company’s written consent, and will take all reasonable precautions to prevent inadvertent use, copying or transfer\nof Confidential Information. This prohibition against Your use, copying, or transfer of Confidential Information includes, but is\nnot limited to, selling, licensing or otherwise exploiting, directly or indirectly, any products or services (including software in any\nform) which embody or are derived from Confidential Information, or exercising judgment in performing analysis based upon\nknowledge of Confidential Information. Without in any way limiting the generality of this subsection, You agree not to directly\nor indirectly circumvent or compete with the Company with regard to any Confidential Information.\n4.2.3 You will not make any written use of or reference to the Company’s name or trademarks (or any name under which the Company\ndoes business) for any marketing, public relations, advertising, display or other business purpose unrelated to the express business\npurposes and interests of the Company or make any use of the Company’s facilities for any activity unrelated to the express\nbusiness purposes and interests of the Company, without the prior written consent of the Company, which consent may be\nwithheld or granted in the Company’s sole and absolute discretion.\n4.2.4 In the event that You receive a subpoena or order of a court, or other body having jurisdiction over a matter, in which You are\ncompelled to produce any information relevant to the Company, whether confidential or not, You will immediately provide the\nCompany with written notice of this subpoena or order so that the Company may timely move to quash if appropriate.\n4.2.5 . If a court decides that Section 4.2 or any of its restrictions is unenforceable for lack of reasonable temporal limitation and the\nAgreement or restriction(s) cannot otherwise be enforced, You and the Company agree that twelve (12) months shall be the\ntemporal limitation relevant to the contested restriction; provided, however, that this Section 4.2 .5 shall not apply to trade secrets\nprotected without temporal limitation under applicable law.\n4.3 For the six (6) months immediately following the termination of Your employment with the Company for any reason, provided however,\nupon one year of continuous employment with the Employer, the six month limitation period set forth above shall automatically adjust to\na twelve (12) month period without further action of the Executive or Employer, You agree:\n4.3.1 . You will not solicit or provide Conflicting Services except on behalf of or at the direction of the Company.\n4.3.2 . You will not solicit, perform or offer to perform any Conflicting Services for a Business Partner.\n3\n4.3.3 . You will not request, induce, or attempt to induce any Business Partner to terminate its relationship with the Company;\n4.3.4 You will not attempt to hire, employ or associate in business with any person employed by the Company or who has left the\nemployment of the Company within the preceding six (6) months and You will not discuss any potential employment or business\nassociation with such person, even if You did not initiate the discussion or seek out the contact.\n5. REASONABLENESS OF RESTRICTIONS AND SEVERABILITY.\n5.1. You represent and agree that You have read this entire Agreement, and understand it. You agree that this Agreement does not prevent\nYou from earning a living or pursuing Your career. You agree that the restrictions contained in this Agreement are reasonable, proper,\nand necessitated by the Company’s legitimate business interests. You agree that the restrictions placed on You under this Agreement are\nreasonable given the nature of the compensation (including any grant of equity) that you have received and may continue to receive from\nthe Company. You represent and agree that You are entering into this Agreement freely and with knowledge of its content and with the\nintent to be bound by the Agreement and the restrictions contained in it.\n5.2. In the event that a court finds this Agreement, or any of its restrictions, to be ambiguous, unenforceable, or invalid, You and the\nCompany agree that the court shall read the Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid to\nthe maximum extent allowed by law.\n5.3. If the Court declines to enforce this Agreement in the manner provided in subparagraph 5.2, You and the Company agree that this\nAgreement will be automatically modified to provide the Company with the maximum protection of its business interests allowed by law\nand You agree to be bound by this Agreement as modified.\n5.4. You and the Company agree that the geographic market for the Company’s products and services is the Washington, D.C. and Raleigh,\nN.C. metropolitan areas, so that this Agreement applies to Your activities throughout those geographic areas. If, however, after applying\nthe provisions of subparagraphs 5.2 and 5.3, a court still decides that this Agreement or any of its restrictions is unenforceable for lack of\nreasonable geographic limitation and the Agreement or restriction(s) cannot otherwise be enforced You and the Company agree that the\nfifty (50) miles radius from any office at which You worked for the Company on either a regular or occasional basis during the two years\nimmediately preceding termination of Your employment with the Company shall be the geographic limitation relevant to the contested\nrestriction.\n4\n5.5 If any provision of this Agreement is declared to be ambiguous, unenforceable or invalid, the remainder of this Agreement shall remain\nin full force and effect, and the Agreement shall be read as if the ambiguous, unenforceable or invalid provision was not contained in the\nAgreement.\n6. INJUNCTIVE RELIEF AND REMEDIES.\n6.1. You acknowledge that it may be impossible to assess the damages caused by Your violation of this Agreement, or any of its terms. You\nagree that any threatened or actual violation or breach of this Agreement, or any of its terms, will constitute immediate and irreparable\ninjury to the Company.\n6.2. You agree that in addition to any and all other damages and remedies available to the Company if You breach this Agreement, the\nCompany shall be entitled to temporary injunctive relief, without being required to post a bond, and permanent injunctive relief, without\nthe necessity of proving actual damage, to prevent You from violating or breaching this Agreement or any of its terms.\n6.3. In the event that the Company enforces this Agreement through a court order, You agree that the restrictions contained in Section 4.3 of\nthis Agreement shall remain in effect for a period of twelve (12) months from the effective date of the Order enforcing the Agreement.\n6.4. You agree that if the Company is successful in whole or part in any legal or equitable action against You under this Agreement, the\nCompany shall be entitled to payment of all costs, including reasonable attorneys’ fees, from You.\n7. PUBLICATION OF THIS AGREEMENT TO SUBSEQUENT EMPLOYERS OR BUSINESS ASSOCIATES OF EMPLOYEE.\n7.1. If You are offered employment or the opportunity to enter into any business venture (as owner, partner, consultant or other capacity) with\na person or entity which provides or is planning to provide Conflicting Services while the restrictions described in paragraph 4.3 of this\nAgreement are in effect, You agree to inform Your potential employer, partner, co-owner and/or others involved in managing the\nbusiness which You have an opportunity to join of Your obligations under this Agreement and also agree to provide such person or\npersons with a copy of this Agreement.\n7.2. You also authorize the Company to provide copies of this Agreement to any of the persons or entities described in subparagraph 7.1 and\nto make such persons aware of Your obligations under this Agreement.\n8. MISCELLANEOUS .\n8.1. This Agreement and the restrictions and obligations in it survive the employment relationship and are binding regardless of the reason\nfor termination of employment.\n5\n8.2. The Agreement is for the benefit of You and of the Company, its successor, assigns, parent corporations, subsidiaries, and/or purchasers.\n8.3. This Agreement is governed by the laws of the Commonwealth of Virginia without regard to the conflicts of laws or principles thereof.\nWith respect to any litigation based on, arising out of, or in connection with this Agreement, You hereby expressly submit to the personal\njurisdiction of the Fairfax County Circuit Court for the Commonwealth of Virginia and of the United States District Court for the Eastern\nDistrict of Virginia. You hereby expressly waive, to the fullest extent permitted by law, any objection that You may now or hereafter have\nto the laying of venue of any such litigation brought in any such court referred to above, including without limitation any claim that any\nsuch litigation has been brought in an inconvenient forum.\n8.4. No waiver by the Company of any breach of any of the provisions of this Agreement is a waiver of any preceding or succeeding breach\nof the same or any other provisions of this Agreement. No waiver shall be effective unless in writing and then only to the extent\nexpressly set forth in writing.\n8.5. Except as expressly provided otherwise in this Agreement, nothing in this Agreement grants a license or permission to use any\nintellectual property of Company, whether owned, pending, or currently under development.\n8.6. This Agreement may be amended by a writing signed by both parties; provided, however, that Schedules A and B to this Agreement may\nbe amended by the Company at any time and the amended schedules attached to this Agreement and made a part of it.\n8.7 You agree that on the subjects covered in this Agreement, it is the entire Agreement between You and the Company, superseding any\nprevious oral or written communications, representations, understanding, or agreements with the Company or with any representative of\nthe Company. By signing this Agreement You represent that You have read and understand this Agreement, You have had an\nopportunity to consult legal counsel concerning this Agreement and that You sign it voluntarily.\nComstock Homebuilding Companies, Inc.\nEmployee\nBy:\nChristopher Clemente\nJoseph M. Squeri\nChief Executive Officer\n6\nSCHEDULE A\nCOMPANY PROPERTY\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August , 2010, Company Property shall include but not be limited to:\n1. All lists of and information pertaining to any Business Partner.\n2. All Confidential Information of the Company.\n3. All notes, files, correspondence (including copies of e-mail or voice mail messages) and memoranda prepared or received in the course\nof employment.\n4. All manuals reports, records, notebooks, plans, photographs, specifications, technical data and drawings prepared or received in the\ncourse of employment.\n5. All computers, printers, computer hardware and software, computer programs, program listings, diskettes, CD’s, DVD’s, audio and\nvideotapes; downloads and source/object codes.\n7\nSCHEDULE B\nCONFIDENTIAL INFORMATION\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August , 2010, Confidential Information shall include but not be limited to the following information where it is not generally known to the\npublic or in the home construction industry (including information conceived, discovered or developed by Employee):\n1. Information relating to the Company’s proprietary rights prior to any public disclosure thereof, including but not limited to the nature of\nthe proprietary rights, discoveries, inventions, works of authorship, techniques, improvements and ideas (whether patentable or not),\nhardware, software, computer programs, source or object codes, documentation, processes, design, concept, development, methods,\ncodes, formulas, production data, technical and engineering data, test data and test results, knowledge of codes for data fields,\ndocumentation manuals (including data dictionaries), the status and details of research and development of products and services, and\ninformation regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets).\n2. Work product resulting from or related to work or projects performed or to be performed for the Company or for clients of the Company,\nincluding but not limited to the interim and final lines of inquiry, hypotheses, research and conclusions related thereto and the methods,\nprocesses, procedures, analyses, techniques and audits used in connection therewith.\n3. Marketing and development plans, marketing strategies, product descriptions and program descriptions, price and cost data, price and fee\namounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and\nforecast assumptions and volumes, and future plans and potential strategies of the Company which have been or are being discussed.\n4. Computer software of any type or form in any stage of actual or anticipated research and development, including but not limited to\nprograms and program modules, routines and subroutines, processes, algorithms, design concepts, design specifications (design notes,\nannotations, documentation, flowcharts, coding sheets, and the like), source code, object code and load modules, programming, program\npatches, data models and systems plans, design, application and documentation.\n5. Internal Company personnel information, employee lists, compensation data, non-public financial information, financial projections and\nbusiness plans and strategy, operational plans, financing and capital-raising plans, activities, and agreements,\n8\nvendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost\ninformation, internal services and operational manuals, and the manner and methods of conducting the Company’s business.\n6. Non-public information pertaining to any Business Partner and its needs or desires with respect to the products and services offered by\nthe Company, including, but not limited to, names of Business Partner and their representatives, proposals, bids, contracts and their\ncontents and parties, data provided to the Company by Business Partner, the type, quantity and specifications of products and services\npurchased, leased, licensed or provided or received by Business Partner and other non-public information.\n7. Any information that a competitor of the Company could use to the competitive disadvantage of the Company.\n9	EX-10.94 5 dex1094.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.94\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Agreement is between Joseph M. Squeri (hereafter “You”) and Comstock Homebuilding Companies, Inc., its affiliates, successors,\nassigns, parents and subsidiaries (hereafter “the Company”), effective this __ day of August, 2010. You are entering into this Agreement based on\nconsideration to You from the Company, including the grant of equity in the Company to You, Your employment and continued employment with\nthe Company, and such other benefits that You acknowledge to be sufficient consideration for this Agreement.\n1. NATURE OF AGREEMENT. You and the Company intend this Agreement to be an Agreement concerning confidentiality and non-\ncompetition/non-solicitation. This Agreement does not limit in any way the right of either You or the Company to terminate the employment\nrelationship at any time. This Agreement contains obligations that survive termination of the employment relationship between You and the\nCompany. You agree that neither the provisions set forth in this Agreement nor any other written or oral communications between the Company and\nYou about the subject matter of this Agreement as of the date of this Agreement has created or is intended to create a contract of employment or a\npromise to provide any benefits. If You and the Company enter into or have entered into an Employment Agreement, this Agreement is to be read\nand applied consistently with that Agreement.\n2. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:\n2.1 “Business Partner” means each and every person and/or entity who or that, at any time during the two (2) years prior to termination of\nYour employment: (i) was either a customer, lender, supplier or subcontractor of or to the Company; (ii) was in contact with You or in\ncontact with any other employee, owner, or agent of the Company, of which contact You either were involved or were or should have\nbeen aware, concerning receiving or providing any product or service from the Company; or (iii) was solicited by the Company, or in\nconsideration or planning to be solicited by the Company, in an effort in which You were involved or of which You were or should have\nbeen aware.\n2.2 “Conflicting Services” means any service or process of any person or production homebuilding organization, other than the Company,\nsettling in excess of 250 units annually, which directly competes with the Company in the business of designing, constructing and selling\nfor-sale single-family homes, townhomes and condominiums within the Washington, D.C. metropolitan area or in any other geographic\narea where the Company is conducting operations or has demonstrable plans to commence operations within six (6) months during Your\nemployment by the Company or about which You acquire Confidential Information during Your employment by the Company.\n2.3 “Confidential Information” means knowledge or information not generally known to the public or in the home construction industry\n(including information conceived, discovered or developed by You), that You learn of, possess, or to which You have access through\nYour employment by the Company, related to the Company or its Business Partners, including but not limited to the information\nlisted on Schedule B to this Agreement. Confidential Information shall not include information that is or becomes publicly known\nthrough no breach of this Agreement or other act or omission of the Employee. The phrase “publicly known” shall mean readily\naccessible to the public in a written publication, and shall not include information that is only available by a substantial searching of the\npublished literature, and information the substance of which must be pieced together from a number of different publications and\nsources. The burden of proving that information or skills and experience are not Confidential Information shall be on the party asserting\nsuch exclusion.\n3. RETURN OF COMPANY PROPERTY. You agree that at any time requested by the Company and/or at termination of Your employment with\nthe Company for any reason, You will promptly deliver to the Company all property and materials in any form belonging to or relating to the\nCompany, its business and the business of any Business Partner, including but not limited to, the property listed on Schedule A to this Agreement.\nYou agree not to download or keep copies of company property in any hard or soft format. You agree that You have no ownership or interest in any\nCompany property.\n4. RESTRICTIONS.\n4.1. You agree that while You are employed by the Company, You will not solicit or provide Conflicting Services except on behalf of or at\nthe direction of the Company.\n4.2 Atany time during and after Your employment with the Company You agree:\n4.2.1 You will not disclose Confidential Information to any person or entity without first obtaining the Company’s consent, and will\ntake all reasonable precautions to prevent inadvertent disclosure of such Confidential Information. You agree to make every\neffort to ensure that persons working in any capacity for the Company, including without limitation employees, officers, directors,\nvendors, sub-contractors, attorneys, and agents, subsidiary or parent entities (and the employees, officers, directors, vendors,\ncontractors, attorneys, and agents, thereof) are permitted access to Confidential Information on a strictly “need to know” basis.\nThis prohibition against Your disclosure of Confidential Information includes, but is not limited to, disclosing the fact that any\nsimilarity exists between Confidential Information and information independently developed by another person or entity. You\nunderstand that the existence of such a similarity does not excuse You from honoring Your obligations under this Agreement.\n4.2.2 You will not use any Confidential Information for Your personal benefit or for the benefit of any person or entity other than the\nCompany. You will not use, copy or transfer Confidential Information other than as necessary in carrying out Your duties on\nbehalf of the Company, without first\n4.3\n4.2.3\n4.2.4\n4.2.5. obtaining the Company’s written consent, and will take all reasonable precautions to prevent inadvertent use, copying or transfer\nof Confidential Information. This prohibition against Your use, copying, or transfer of Confidential Information includes, but is\nnot limited to, selling, licensing or otherwise exploiting, directly or indirectly, any products or services (including software in any\nform) which embody or are derived from Confidential Information, or exercising judgment in performing analysis based upon\nknowledge of Confidential Information. Without in any way limiting the generality of this subsection, You agree not to directly\nor indirectly circumvent or compete with the Company with regard to any Confidential Information.\nYou will not make any written use of or reference to the Company’s name or trademarks (or any name under which the Company\ndoes business) for any marketing, public relations, advertising, display or other business purpose unrelated to the express business\npurposes and interests of the Company or make any use of the Company’s facilities for any activity unrelated to the express\nbusiness purposes and interests of the Company, without the prior written consent of the Company, which consent may be\nwithheld or granted in the Company’s sole and absolute discretion.\nIn the event that You receive a subpoena or order of a court, or other body having jurisdiction over a matter, in which You are\ncompelled to produce any information relevant to the Company, whether confidential or not, You will immediately provide the\nCompany with written notice of this subpoena or order so that the Company may timely move to quash if appropriate.\nIf a court decides that Section 4.2 or any of its restrictions is unenforceable for lack of reasonable temporal limitation and the\nAgreement or restriction(s) cannot otherwise be enforced, You and the Company agree that twelve (12) months shall be the\ntemporal limitation relevant to the contested restriction; provided, however, that this Section 4.2.5 shall not apply to trade secrets\nprotected without temporal limitation under applicable law.\nFor the six (6) months immediately following the termination of Your employment with the Company for any reason, provided however, upon one year of continuous employment with the Employer, the six month limitation period set forth above shall automatically adjust to a twelve (12) month period without further action of the Executive or Employer, You agree: 4.3.1. 4.3.2. You will not solicit or provide Conflicting Services except on behalf of or at the direction of the Company.\nYou will not solicit, perform or offer to perform any Conflicting Services for a Business Partner.\n3\n4.3.3. You will not request, induce, or attempt to induce any Business Partner to terminate its relationship with the Company;\n4.3.4 You will not attempt to hire, employ or associate in business with any person employed by the Company or who has left the\nemployment of the Company within the preceding six (6) months and You will not discuss any potential employment or business\nassociation with such person, even if You did not initiate the discussion or seek out the contact.\n5. REASONABLENESS OF RESTRICTIONS AND SEVERABILITY. 5.1.\n5.2\n5.3.\n5.4.\nYou represent and agree that You have read this entire Agreement, and understand it. You agree that this Agreement does not prevent\nYou from earning a living or pursuing Your career. You agree that the restrictions contained in this Agreement are reasonable, proper,\nand necessitated by the Company’s legitimate business interests. You agree that the restrictions placed on You under this Agreement are\nreasonable given the nature of the compensation (including any grant of equity) that you have received and may continue to receive from\nthe Company. You represent and agree that You are entering into this Agreement freely and with knowledge of its content and with the\nintent to be bound by the Agreement and the restrictions contained in it.\nIn the event that a court finds this Agreement, or any of its restrictions, to be ambiguous, unenforceable, or invalid, You and the\nCompany agree that the court shall read the Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid to\nthe maximum extent allowed by law.\nIf the Court declines to enforce this Agreement in the manner provided in subparagraph 5.2, You and the Company agree that this\nAgreement will be automatically modified to provide the Company with the maximum protection of its business interests allowed by law\nand You agree to be bound by this Agreement as modified.\nYou and the Company agree that the geographic market for the Company’s products and services is the Washington, D.C. and Raleigh,\nN.C. metropolitan areas, so that this Agreement applies to Your activities throughout those geographic areas. If, however, after applying\nthe provisions of subparagraphs 5.2 and 5.3, a court still decides that this Agreement or any of its restrictions is unenforceable for lack of\nreasonable geographic limitation and the Agreement or restriction(s) cannot otherwise be enforced You and the Company agree that the\nfifty (50) miles radius from any office at which You worked for the Company on either a regular or occasional basis during the two years\nimmediately preceding termination of Your employment with the Company shall be the geographic limitation relevant to the contested\nrestriction.\n5.5 If any provision of this Agreement is declared to be ambiguous, unenforceable or invalid, the remainder of this Agreement shall remain\nin full force and effect, and the Agreement shall be read as if the ambiguous, unenforceable or invalid provision was not contained in the\nAgreement.\n6. INJUNCTIVE RELIEF AND REMEDIES.\n6.1. You acknowledge that it may be impossible to assess the damages caused by Your violation of this Agreement, or any of its terms. You\nagree that any threatened or actual violation or breach of this Agreement, or any of its terms, will constitute immediate and irreparable\ninjury to the Company.\n6.2. You agree that in addition to any and all other damages and remedies available to the Company if You breach this Agreement, the\nCompany shall be entitled to temporary injunctive relief, without being required to post a bond, and permanent injunctive relief, without\nthe necessity of proving actual damage, to prevent You from violating or breaching this Agreement or any of its terms.\n6.3. Inthe event that the Company enforces this Agreement through a court order, You agree that the restrictions contained in Section 4.3 of\nthis Agreement shall remain in effect for a period of twelve (12) months from the effective date of the Order enforcing the Agreement.\n6.4. You agree that if the Company is successful in whole or part in any legal or equitable action against You under this Agreement, the\nCompany shall be entitled to payment of all costs, including reasonable attorneys’ fees, from You.\n7. PUBLICATION OF THIS AGREEMENT TO SUBSEQUENT EMPLOYERS OR BUSINESS ASSOCIATES OF EMPLOYEE.\n7.1. 1If You are offered employment or the opportunity to enter into any business venture (as owner, partner, consultant or other capacity) with\na person or entity which provides or is planning to provide Conflicting Services while the restrictions described in paragraph 4.3 of this\nAgreement are in effect, You agree to inform Your potential employer, partner, co-owner and/or others involved in managing the\nbusiness which You have an opportunity to join of Your obligations under this Agreement and also agree to provide such person or\npersons with a copy of this Agreement.\n7.2. You also authorize the Company to provide copies of this Agreement to any of the persons or entities described in subparagraph 7.1 and\nto make such persons aware of Your obligations under this Agreement.\n8. MISCELLANEOUS.\n8.1. This Agreement and the restrictions and obligations in it survive the employment relationship and are binding regardless of the reason\nfor termination of employment.\n8.2. 8.3. 8.4. 8.5. 8.6. 8.7\nThe Agreement is for the benefit of You and of the Company, its successor, assigns, parent corporations, subsidiaries, and/or purchasers.\nThis Agreement is governed by the laws of the Commonwealth of Virginia without regard to the conflicts of laws or principles thereof.\nWith respect to any litigation based on, arising out of, or in connection with this Agreement, You hereby expressly submit to the personal\njurisdiction of the Fairfax County Circuit Court for the Commonwealth of Virginia and of the United States District Court for the Eastern\nDistrict of Virginia. You hereby expressly waive, to the fullest extent permitted by law, any objection that You may now or hereafter have\nto the laying of venue of any such litigation brought in any such court referred to above, including without limitation any claim that any\nsuch litigation has been brought in an inconvenient forum.\nNo waiver by the Company of any breach of any of the provisions of this Agreement is a waiver of any preceding or succeeding breach\nof the same or any other provisions of this Agreement. No waiver shall be effective unless in writing and then only to the extent\nexpressly set forth in writing.\nExcept as expressly provided otherwise in this Agreement, nothing in this Agreement grants a license or permission to use any\nintellectual property of Company, whether owned, pending, or currently under development.\nThis Agreement may be amended by a writing signed by both parties; provided, however, that Schedules A and B to this Agreement may\nbe amended by the Company at any time and the amended schedules attached to this Agreement and made a part of it.\nYou agree that on the subjects covered in this Agreement, it is the entire Agreement between You and the Company, superseding any\nprevious oral or written communications, representations, understanding, or agreements with the Company or with any representative of\nthe Company. By signing this Agreement You represent that You have read and understand this Agreement, You have had an\nopportunity to consult legal counsel concerning this Agreement and that You sign it voluntarily.\nComstock Homebuilding Companies, Inc. Employee By:\nChristopher Clemente Joseph M. Squeri Chief Executive Officer\fSCHEDULE A\nCOMPANY PROPERTY\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August __, 2010, Company Property shall include but not be limited to:\n1. Alllists of and information pertaining to any Business Partner.\n2. All Confidential Information of the Company.\n3. Allnotes, files, correspondence (including copies of e-mail or voice mail messages) and memoranda prepared or received in the course\nof employment.\n4.  All manuals reports, records, notebooks, plans, photographs, specifications, technical data and drawings prepared or received in the\ncourse of employment.\n5. All computers, printers, computer hardware and software, computer programs, program listings, diskettes, CD’s, DVD’s, audio and\nvideotapes; downloads and source/object codes.\nSCHEDULE B\nCONFIDENTIAL INFORMATION\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri dated August __, 2010, Confidential Information shall include but not be limited to the following information where it is not generally known to the public or in the home construction industry (including information conceived, discovered or developed by Employee): 1. Information relating to the Company’s proprietary rights prior to any public disclosure thereof, including but not limited to the nature of\nthe proprietary rights, discoveries, inventions, works of authorship, techniques, improvements and ideas (whether patentable or not),\nhardware, software, computer programs, source or object codes, documentation, processes, design, concept, development, methods,\ncodes, formulas, production data, technical and engineering data, test data and test results, knowledge of codes for data fields,\ndocumentation manuals (including data dictionaries), the status and details of research and development of products and services, and\ninformation regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets).\nWork product resulting from or related to work or projects performed or to be performed for the Company or for clients of the Company,\nincluding but not limited to the interim and final lines of inquiry, hypotheses, research and conclusions related thereto and the methods,\nprocesses, procedures, analyses, techniques and audits used in connection therewith.\nMarketing and development plans, marketing strategies, product descriptions and program descriptions, price and cost data, price and fee\namounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and\nforecast assumptions and volumes, and future plans and potential strategies of the Company which have been or are being discussed.\nComputer software of any type or form in any stage of actual or anticipated research and development, including but not limited to\nprograms and program modules, routines and subroutines, processes, algorithms, design concepts, design specifications (design notes,\nannotations, documentation, flowcharts, coding sheets, and the like), source code, object code and load modules, programming, program\npatches, data models and systems plans, design, application and documentation.\nInternal Company personnel information, employee lists, compensation data, non-public financial information, financial projections and\nbusiness plans and strategy, operational plans, financing and capital-raising plans, activities, and agreements,\n8\nvendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost\ninformation, internal services and operational manuals, and the manner and methods of conducting the Company’s business.\nNon-public information pertaining to any Business Partner and its needs or desires with respect to the products and services offered by\nthe Company, including, but not limited to, names of Business Partner and their representatives, proposals, bids, contracts and their\ncontents and parties, data provided to the Company by Business Partner, the type, quantity and specifications of products and services\npurchased, leased, licensed or provided or received by Business Partner and other non-public information.\nAny information that a competitor of the Company could use to the competitive disadvantage of the Company.\n9	EX-10.94 5 lex1094.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.94\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Agreement is between Joseph M. Squeri (hereafter "You") and Comstock Homebuilding Companies, Inc., its affiliates, successors,\nassigns, parents and subsidiaries (hereafter "the Company"), effective this day of August, 2010. You are entering into this Agreement based\non\nconsideration to You from the Company, including the grant of equity in the Company to You, Your employment and continued employment with\nthe Company, and such other benefits that You acknowledge to be sufficient consideration for this Agreement.\n1.\nNATURE OF AGREEMENT. You and the Company intend this Agreement to be an Agreement concerning confidentiality and non-\ncompetition/non-solicitation. This Agreement does not limit in any way the right of either You or the Company to terminate the employment\nrelationship at any time. This Agreement contains obligations that survive termination of the employment relationship between You and the\nCompany. You agree that neither the provisions set forth in this Agreement nor any other written or oral communications between the Company and\nYou about the subject matter of this Agreement as of the date of this Agreement has created or is intended to create a contract of employment or\na\npromise to provide any benefits. If You and the Company enter into or have entered into an Employment Agreement, this Agreement is to be read\nand applied consistently with that Agreement.\n2. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:\n2.1\n"Business Partner" means each and every person and/or entity who or that, at any time during the two (2) years prior to termination of\nYour employment: (i) was either a customer, lender, supplier or subcontractor of or to the Company; (ii) was in contact with You or in\ncontact with any other employee, owner, or agent of the Company, of which contact You either were involved or were or should have\nbeen aware, concerning receiving or providing any product or service from the Company; or (iii) was solicited by the Company, or\nin\nconsideration or planning to be solicited by the Company, in an effort in which You were involved or of which You were or should have\nbeen aware.\n2.2 "Conflicting Services" means any service or process of any person or production homebuilding organization, other than the Company,\nsettling in excess of 250 units annually, which directly competes with the Company in the business of designing, constructing and selling\nfor-sale single-family homes, townhomes and condominiums within the Washington, D.C. metropolitan area or in any other geographic\narea where the Company is conducting operations or has demonstrable plans to commence operations within six (6) months during Your\nemployment by the Company or about which You acquire Confidential Information during Your employment by the Company.\n2.3 "Confidential Information" means knowledge or information not generally known to the public or in the home construction industry\n(including information conceived, discovered or developed by You), that You learn of, possess, or to which You have access through\nYour employment by the Company, related to the Company or its Business Partners, including but not limited to the information\nlisted on Schedule B to this Agreement. Confidential Information shall not include information that is or becomes publicly known\nthrough no breach of this Agreement or other act or omission of the Employee. The phrase "publicly known" shall mean readily\naccessible to the public in a written publication, and shall not include information that is only available by a substantial searching of the\npublished literature, and information the substance of which must be pieced together from a number of different publications and\nsources. The burden of proving that information or skills and experience are not Confidential Information shall be on the party asserting\nsuch exclusion.\n3.\nRETURN OF COMPANY PROPERTY. You agree that at any time requested by the Company and/or at termination of Your employment with\nthe Company for any reason, You will promptly deliver to the Company all property and materials in any form belonging to or relating to the\nCompany, its business and the business of any Business Partner, including but not limited to, the property listed on Schedule A to this Agreement.\nYou agree not to download or keep copies of company property in any hard or soft format. You agree that You have no ownership or interest in any\nCompany property.\n4. RESTRICTIONS.\n4.1. You agree that while You are employed by the Company, You will not solicit or provide Conflicting Services except on behalf of or at\nthe direction of the Company.\n4.2 At any time during and after Your employment with the Company You agree:\n4.2.1 You will not disclose Confidential Information to any person or entity without first obtaining the Company's consent, and will\ntake all reasonable precautions to prevent inadvertent disclosure of such Confidential Information. You agree to make every\neffort to ensure that persons working in any capacity for the Company, including without limitation employees, officers, directors,\nvendors, sub-contractors, attorneys, and agents, subsidiary or parent entities (and the employees, officers, directors, vendors,\ncontractors, attorneys, and agents, thereof) are permitted access to Confidential Information on a strictly "need to know" basis.\nThis prohibition against Your disclosure of Confidential Information includes, but is not limited to, disclosing the fact that any\nsimilarity exists between Confidential Information and information independently developed by another person or entity. You\nunderstand that the existence of such a similarity does not excuse You from honoring Your obligations under this Agreement.\n4.2.2 You will not use any Confidential Information for Your personal benefit or for the benefit of any person or entity other than the\nCompany. You will not use, copy or transfer Confidential Information other than as necessary in carrying out Your duties on\nbehalf of the Company, without first\n2\nobtaining the Company's written consent, and will take all reasonable precautions to prevent inadvertent use, copying or transfer\nof Confidential Information. This prohibition against Your use, copying, or transfer of Confidential Information includes, but is\nnot limited to, selling, licensing or otherwise exploiting, directly or indirectly, any products or services (including software in any\nform) which embody or are derived from Confidential Information, or exercising judgment in performing analysis based upon\nknowledge of Confidential Information. Without in any way limiting the generality of this subsection, You agree not to directly\nor indirectly circumvent or compete with the Company with regard to any Confidential Information.\n4.2.3 You will not make any written use of or reference to the Company's name or trademarks (or any name under which the Company\ndoes business) for any marketing, public relations, advertising, display or other business purpose unrelated to the express business\npurposes and interests of the Company or make any use of the Company's facilities for any activity unrelated to the express\nbusiness purposes and interests of the Company, without the prior written consent of the Company, which consent may be\nwithheld or granted in the Company's sole and absolute discretion.\n4.2.4 In the event that You receive a subpoena or order of a court, or other body having jurisdiction over a matter, in which You are\ncompelled to produce any information relevant to the Company, whether confidential or not, You will immediately provide the\nCompany with written notice of this subpoena or order SO that the Company may timely move to quash if appropriate.\n4.2.5. If a court decides that Section 4.2 or any of its restrictions is unenforceable for lack of reasonable temporal limitation and the\nAgreement or restriction(s) cannot otherwise be enforced, You and the Company agree that twelve (12) months shall be the\ntemporal limitation relevant to the contested restriction; provided, however, that this Section 4.2.5 shall not apply to trade secrets\nprotected without temporal limitation under applicable law.\n4.3\nFor the six (6) months immediately following the termination of Your employment with the Company for any reason, provided however,\nupon one year of continuous employment with the Employer, the six month limitation period set forth above shall automatically adjust to\na twelve (12) month period without further action of the Executive or Employer, You agree:\n4.3.1. You will not solicit or provide Conflicting Services except on behalf of or at the direction of the Company.\n4.3.2. You will not solicit, perform or offer to perform any Conflicting Services for a Business Partner.\n3\n4.3.3. You will not request, induce, or attempt to induce any Business Partner to terminate its relationship with the Company;\n4.3.4 You will not attempt to hire, employ or associate in business with any person employed by the Company or who has left the\nemployment of the Company within the preceding six (6) months and You will not discuss any potential employment or business\nassociation with such person, even if You did not initiate the discussion or seek out the contact.\n5. REASONABLENESS OF RESTRICTIONS AND SEVERABILITY.\n5.1. You represent and agree that You have read this entire Agreement, and understand it. You agree that this Agreement does not prevent\nYou from earning a living or pursuing Your career. You agree that the restrictions contained in this Agreement are reasonable, proper,\nand necessitated by the Company's legitimate business interests. You agree that the restrictions placed on You under this Agreement are\nreasonable given the nature of the compensation (including any grant of equity) that you have received and may continue to receive from\nthe Company. You represent and agree that You are entering into this Agreement freely and with knowledge of its content and with the\nintent to be bound by the Agreement and the restrictions contained in it.\n5.2. In the event that a court finds this Agreement, or any of its restrictions, to be ambiguous, unenforceable, or invalid, You and the\nCompany agree that the court shall read the Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid to\nthe maximum extent allowed by law.\n5.3. If the Court declines to enforce this Agreement in the manner provided in subparagraph 5.2, You and the Company agree that this\nAgreement will be automatically modified to provide the Company with the maximum protection of its business interests allowed by law\nand You agree to be bound by this Agreement as modified.\n5.4. You and the Company agree that the geographic market for the Company's products and services is the Washington, D.C. and Raleigh,\nN.C. metropolitan areas, so that this Agreement applies to Your activities throughout those geographic areas. If, however, after applying\nthe provisions of subparagraphs 5.2 and 5.3, a court still decides that this Agreement or any of its restrictions is unenforceable for lack of\nreasonable geographic limitation and the Agreement or restriction(s) cannot otherwise be enforced You and the Company agree that the\nfifty (50) miles radius from any office at which You worked for the Company on either a regular or occasional basis during the two years\nimmediately preceding termination of Your employment with the Company shall be the geographic limitation relevant to the contested\nrestriction.\n4\n5.5\nIf any provision of this Agreement is declared to be ambiguous, unenforceable or invalid, the remainder of this Agreement shall remain\nin full force and effect, and the Agreement shall be read as if the ambiguous, unenforceable or invalid provision was not contained in the\nAgreement.\n6. INJUNCTIVE RELIEF AND REMEDIES.\n6.1. You acknowledge that it may be impossible to assess the damages caused by Your violation of this Agreement, or any of its terms. You\nagree that any threatened or actual violation or breach of this Agreement, or any of its terms, will constitute immediate and irreparable\ninjury to the Company.\n6.2. You agree that in addition to any and all other damages and remedies available to the Company if You breach this Agreement, the\nCompany shall be entitled to temporary injunctive relief, without being required to post a bond, and permanent injunctive relief, without\nthe necessity of proving actual damage, to prevent You from violating or breaching this Agreement or any of its terms.\n6.3. In the event that the Company enforces this Agreement through a court order, You agree that the restrictions contained in Section 4.3 of\nthis Agreement shall remain in effect for a period of twelve (12) months from the effective date of the Order enforcing the Agreement.\n6.4. You agree that if the Company is successful in whole or part in any legal or equitable action against You under this Agreement, the\nCompany shall be entitled to payment of all costs, including reasonable attorneys' fees, from You.\n7. PUBLICATION OF THIS AGREEMENT TO SUBSEQUENT EMPLOYERS OR BUSINESS ASSOCIATES OF EMPLOYEE.\n7.1. If You are offered employment or the opportunity to enter into any business venture (as owner, partner, consultant or other capacity) with\na person or entity which provides or is planning to provide Conflicting Services while the restrictions described in paragraph 4.3 of this\nAgreement are in effect, You agree to inform Your potential employer, partner, co-owner and/or others involved in managing the\nbusiness which You have an opportunity to join of Your obligations under this Agreement and also agree to provide such person or\npersons with a copy of this Agreement.\n7.2. You also authorize the Company to provide copies of this Agreement to any of the persons or entities described in subparagraph 7.1 and\nto make such persons aware of Your obligations under this Agreement.\n8. MISCELLANEOUS.\n8.1. This Agreement and the restrictions and obligations in it survive the employment relationship and are binding regardless of the reason\nfor termination of employment.\n5\n8.2.\nThe Agreement is for the benefit of You and of the Company, its successor, assigns, parent corporations, subsidiaries, and/or purchasers.\n8.3.\nThis Agreement is governed by the laws of the Commonwealth of Virginia without regard to the conflicts of laws or principles thereof.\nWith respect to any litigation based on, arising out of, or in connection with this Agreement, You hereby expressly submit to the personal\njurisdiction of the Fairfax County Circuit Court for the Commonwealth of Virginia and of the United States District Court for the Eastern\nDistrict of Virginia. You hereby expressly waive, to the fullest extent permitted by law, any objection that You may now or hereafter have\nto the laying of venue of any such litigation brought in any such court referred to above, including without limitation any claim that any\nsuch litigation has been brought in an inconvenient forum.\n8.4. No waiver by the Company of any breach of any of the provisions of this Agreement is a waiver of any preceding or succeeding breach\nof the same or any other provisions of this Agreement. No waiver shall be effective unless in writing and then only to the extent\nexpressly set forth in writing.\n8.5. Except as expressly provided otherwise in this Agreement, nothing in this Agreement grants a license or permission to use any\nintellectual property of Company, whether owned, pending or currently under development.\n8.6. This Agreement may be amended by a writing signed by both parties; provided, however, that Schedules A and B to this Agreement may\nbe amended by the Company at any time and the amended schedules attached to this Agreement and made a part of it.\n8.7 You agree that on the subjects covered in this Agreement, it is the entire Agreement between You and the Company, superseding any\nprevious oral or written communications, representations, understanding, or agreements with the Company or with any representative of\nthe Company. By signing this Agreement You represent that You have read and understand this Agreement, You have had an\nopportunity to consult legal counsel concerning this Agreement and that You sign it voluntarily.\nComstock Homebuilding Companies, Inc.\nEmployee\nBy:\nChristopher Clemente\nJoseph M. Squeri\nChief Executive Officer\n6\nSCHEDULE A\nCOMPANY PROPERTY\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August 2010, Company Property shall include but not be limited to:\n1.\nAll lists of and information pertaining to any Business Partner.\n2.\nAll Confidential Information of the Company.\n3.\nAll notes, files, correspondence (including copies of e-mail or voice mail messages) and memoranda prepared or received in the course\nof employment.\n4.\nAll manuals reports, records, notebooks, plans, photographs, specifications, technical data and drawings prepared or received in the\ncourse of employment.\n5.\nAll\ncomputers, printers, computer hardware and software, computer programs, program listings, diskettes, CD's, DVD's, audio and\nvideotapes; downloads and source/object codes.\n7\nSCHEDULE B\nCONFIDENTIAL INFORMATION\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August 2010, Confidential Information shall include but not be limited to the following information where it is not generally known to the\npublic or in the home construction industry (including information conceived, discovered or developed by Employee):\n1. Information relating to the Company's proprietary rights prior to any public disclosure thereof, including but not limited to the nature of\nthe proprietary rights, discoveries, inventions, works of authorship, techniques, improvements and ideas (whether patentable or not),\nhardware, software, computer programs, source or object codes, documentation, processes, design, concept, development, methods,\ncodes, formulas, production data, technical and engineering data, test data and test results, knowledge of codes for data fields,\ndocumentation manuals (including data dictionaries), the status and details of research and development of products and services, and\ninformation regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets).\n2.\nWork product resulting from or related to work or projects performed or to be performed for the Company or for clients of the Company,\nincluding but not limited to the interim and final lines of inquiry, hypotheses, research and conclusions related thereto and the methods,\nprocesses, procedures, analyses, techniques and audits used in connection therewith.\n3.\nMarketing and development plans, marketing strategies, product descriptions and program descriptions, price and cost data, price and fee\namounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and\nforecast assumptions and volumes, and future plans and potential strategies of the Company which have been or are being discussed.\n4.\nComputer software of any type or form in any stage of actual or anticipated research and development, including but not limited to\nprograms and program modules, routines and subroutines, processes, algorithms, design concepts, design specifications (design notes,\nannotations, documentation, flowcharts, coding sheets, and the like), source code, object code and load modules, programming, program\npatches, data models and systems plans, design, application and documentation.\n5.\nInternal Company personnel information, employee lists, compensation data, non-public financial information, financial projections and\nbusiness plans and strategy, operational plans, financing and capital-raising plans, activities, and agreements,\n8\nvendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost\ninformation, internal services and operational manuals, and the manner and methods of conducting the Company's business.\n6.\nNon-public information pertaining to any Business Partner and its needs or desires with respect to the products and services offered by\nthe Company, including, but not limited to, names of Business Partner and their representatives, proposals, bids, contracts and their\ncontents and parties data provided to the Company by Business Partner, the type, quantity and specifications of products and services\npurchased, leased, licensed or provided or received by Business Partner and other non-public information.\n7.\nAny information that a competitor of the Company could use to the competitive disadvantage of the Company.\n9	EX-10.94 5 dex1094.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.94\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Agreement is between Joseph M. Squeri (hereafter “You”) and Comstock Homebuilding Companies, Inc., its affiliates, successors,\nassigns, parents and subsidiaries (hereafter “the Company”), effective this day of August, 2010. You are entering into this Agreement based on\nconsideration to You from the Company, including the grant of equity in the Company to You, Your employment and continued employment with\nthe Company, and such other benefits that You acknowledge to be sufficient consideration for this Agreement.\n1. NATURE OF AGREEMENT. You and the Company intend this Agreement to be an Agreement concerning confidentiality and non-\ncompetition/non-solicitation. This Agreement does not limit in any way the right of either You or the Company to terminate the employment\nrelationship at any time. This Agreement contains obligations that survive termination of the employment relationship between You and the\nCompany. You agree that neither the provisions set forth in this Agreement nor any other written or oral communications between the Company and\nYou about the subject matter of this Agreement as of the date of this Agreement has created or is intended to create a contract of employment or a\npromise to provide any benefits. If You and the Company enter into or have entered into an Employment Agreement, this Agreement is to be read\nand applied consistently with that Agreement.\n2. DEFINITIONS . As used in this Agreement, the following terms shall have the following meanings:\n2.1\n“Business Partner” means each and every person and/or entity who or that, at any time during the two (2) years prior to termination of\nYour employment: (i) was either a customer, lender, supplier or subcontractor of or to the Company; (ii) was in contact with You or in\ncontact with any other employee, owner, or agent of the Company, of which contact You either were involved or were or should have\nbeen aware, concerning receiving or providing any product or service from the Company; or (iii) was solicited by the Company, or in\nconsideration or planning to be solicited by the Company, in an effort in which You were involved or of which You were or should have\nbeen aware.\n2.2\n“Conflicting Services” means any service or process of any person or production homebuilding organization, other than the Company,\nsettling in excess of 250 units annually, which directly competes with the Company in the business of designing, constructing and selling\nfor-sale single-family homes, townhomes and condominiums within the Washington, D.C. metropolitan area or in any other geographic\narea where the Company is conducting operations or has demonstrable plans to commence operations within six (6) months during Your\nemployment by the Company or about which You acquire Confidential Information during Your employment by the Company.\n2.3\n“Confidential Information” means knowledge or information not generally known to the public or in the home construction industry\n(including information conceived, discovered or developed by You), that You learn of, possess, or to which You have access through\nYour employment by the Company, related to the Company or its Business Partners, including but not limited to the information\nlisted on Schedule B to this Agreement. Confidential Information shall not include information that is or becomes publicly known\nthrough no breach of this Agreement or other act or omission of the Employee. The phrase “publicly known” shall mean readily\naccessible to the public in a written publication, and shall not include information that is only available by a substantial searching of the\npublished literature, and information the substance of which must be pieced together from a number of different publications and\nsources. The burden of proving that information or skills and experience are not Confidential Information shall be on the party asserting\nsuch exclusion.\n3. RETURN OF COMPANY PROPERTY. You agree that at any time requested by the Company and/or at termination of Your employment with\nthe Company for any reason, You will promptly deliver to the Company all property and materials in any form belonging to or relating to the\nCompany, its business and the business of any Business Partner, including but not limited to, the property listed on Schedule A to this Agreement.\nYou agree not to download or keep copies of company property in any hard or soft format. You agree that You have no ownership or interest in any\nCompany property.\n4. RESTRICTIONS.\n4.1. You agree that while You are employed by the Company, You will not solicit or provide Conflicting Services except on behalf of or at\nthe direction of the Company.\n4.2 At any time during and after Your employment with the Company You agree:\n4.2.1 You will not disclose Confidential Information to any person or entity without first obtaining the Company’s consent, and will\ntake all reasonable precautions to prevent inadvertent disclosure of such Confidential Information. You agree to make every\neffort to ensure that persons working in any capacity for the Company, including without limitation employees, officers, directors,\nvendors, sub-contractors, attorneys, and agents, subsidiary or parent entities (and the employees, officers, directors, vendors,\ncontractors, attorneys, and agents, thereof) are permitted access to Confidential Information on a strictly “need to know” basis.\nThis prohibition against Your disclosure of Confidential Information includes, but is not limited to, disclosing the fact that any\nsimilarity exists between Confidential Information and information independently developed by another person or entity. You\nunderstand that the existence of such a similarity does not excuse You from honoring Your obligations under this Agreement.\n4.2.2 You will not use any Confidential Information for Your personal benefit or for the benefit of any person or entity other than the\nCompany. You will not use, copy or transfer Confidential Information other than as necessary in carrying out Your duties on\nbehalf of the Company, without first\n2\nobtaining the Company’s written consent, and will take all reasonable precautions to prevent inadvertent use, copying or transfer\nof Confidential Information. This prohibition against Your use, copying, or transfer of Confidential Information includes, but is\nnot limited to, selling, licensing or otherwise exploiting, directly or indirectly, any products or services (including software in any\nform) which embody or are derived from Confidential Information, or exercising judgment in performing analysis based upon\nknowledge of Confidential Information. Without in any way limiting the generality of this subsection, You agree not to directly\nor indirectly circumvent or compete with the Company with regard to any Confidential Information.\n4.2.3 You will not make any written use of or reference to the Company’s name or trademarks (or any name under which the Company\ndoes business) for any marketing, public relations, advertising, display or other business purpose unrelated to the express business\npurposes and interests of the Company or make any use of the Company’s facilities for any activity unrelated to the express\nbusiness purposes and interests of the Company, without the prior written consent of the Company, which consent may be\nwithheld or granted in the Company’s sole and absolute discretion.\n4.2.4 In the event that You receive a subpoena or order of a court, or other body having jurisdiction over a matter, in which You are\ncompelled to produce any information relevant to the Company, whether confidential or not, You will immediately provide the\nCompany with written notice of this subpoena or order so that the Company may timely move to quash if appropriate.\n4.2.5 . If a court decides that Section 4.2 or any of its restrictions is unenforceable for lack of reasonable temporal limitation and the\nAgreement or restriction(s) cannot otherwise be enforced, You and the Company agree that twelve (12) months shall be the\ntemporal limitation relevant to the contested restriction; provided, however, that this Section 4.2 .5 shall not apply to trade secrets\nprotected without temporal limitation under applicable law.\n4.3 For the six (6) months immediately following the termination of Your employment with the Company for any reason, provided however,\nupon one year of continuous employment with the Employer, the six month limitation period set forth above shall automatically adjust to\na twelve (12) month period without further action of the Executive or Employer, You agree:\n4.3.1 . You will not solicit or provide Conflicting Services except on behalf of or at the direction of the Company.\n4.3.2 . You will not solicit, perform or offer to perform any Conflicting Services for a Business Partner.\n3\n4.3.3 . You will not request, induce, or attempt to induce any Business Partner to terminate its relationship with the Company;\n4.3.4 You will not attempt to hire, employ or associate in business with any person employed by the Company or who has left the\nemployment of the Company within the preceding six (6) months and You will not discuss any potential employment or business\nassociation with such person, even if You did not initiate the discussion or seek out the contact.\n5. REASONABLENESS OF RESTRICTIONS AND SEVERABILITY.\n5.1. You represent and agree that You have read this entire Agreement, and understand it. You agree that this Agreement does not prevent\nYou from earning a living or pursuing Your career. You agree that the restrictions contained in this Agreement are reasonable, proper,\nand necessitated by the Company’s legitimate business interests. You agree that the restrictions placed on You under this Agreement are\nreasonable given the nature of the compensation (including any grant of equity) that you have received and may continue to receive from\nthe Company. You represent and agree that You are entering into this Agreement freely and with knowledge of its content and with the\nintent to be bound by the Agreement and the restrictions contained in it.\n5.2. In the event that a court finds this Agreement, or any of its restrictions, to be ambiguous, unenforceable, or invalid, You and the\nCompany agree that the court shall read the Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid to\nthe maximum extent allowed by law.\n5.3. If the Court declines to enforce this Agreement in the manner provided in subparagraph 5.2, You and the Company agree that this\nAgreement will be automatically modified to provide the Company with the maximum protection of its business interests allowed by law\nand You agree to be bound by this Agreement as modified.\n5.4. You and the Company agree that the geographic market for the Company’s products and services is the Washington, D.C. and Raleigh,\nN.C. metropolitan areas, so that this Agreement applies to Your activities throughout those geographic areas. If, however, after applying\nthe provisions of subparagraphs 5.2 and 5.3, a court still decides that this Agreement or any of its restrictions is unenforceable for lack of\nreasonable geographic limitation and the Agreement or restriction(s) cannot otherwise be enforced You and the Company agree that the\nfifty (50) miles radius from any office at which You worked for the Company on either a regular or occasional basis during the two years\nimmediately preceding termination of Your employment with the Company shall be the geographic limitation relevant to the contested\nrestriction.\n4\n5.5 If any provision of this Agreement is declared to be ambiguous, unenforceable or invalid, the remainder of this Agreement shall remain\nin full force and effect, and the Agreement shall be read as if the ambiguous, unenforceable or invalid provision was not contained in the\nAgreement.\n6. INJUNCTIVE RELIEF AND REMEDIES.\n6.1. You acknowledge that it may be impossible to assess the damages caused by Your violation of this Agreement, or any of its terms. You\nagree that any threatened or actual violation or breach of this Agreement, or any of its terms, will constitute immediate and irreparable\ninjury to the Company.\n6.2. You agree that in addition to any and all other damages and remedies available to the Company if You breach this Agreement, the\nCompany shall be entitled to temporary injunctive relief, without being required to post a bond, and permanent injunctive relief, without\nthe necessity of proving actual damage, to prevent You from violating or breaching this Agreement or any of its terms.\n6.3. In the event that the Company enforces this Agreement through a court order, You agree that the restrictions contained in Section 4.3 of\nthis Agreement shall remain in effect for a period of twelve (12) months from the effective date of the Order enforcing the Agreement.\n6.4. You agree that if the Company is successful in whole or part in any legal or equitable action against You under this Agreement, the\nCompany shall be entitled to payment of all costs, including reasonable attorneys’ fees, from You.\n7. PUBLICATION OF THIS AGREEMENT TO SUBSEQUENT EMPLOYERS OR BUSINESS ASSOCIATES OF EMPLOYEE.\n7.1. If You are offered employment or the opportunity to enter into any business venture (as owner, partner, consultant or other capacity) with\na person or entity which provides or is planning to provide Conflicting Services while the restrictions described in paragraph 4.3 of this\nAgreement are in effect, You agree to inform Your potential employer, partner, co-owner and/or others involved in managing the\nbusiness which You have an opportunity to join of Your obligations under this Agreement and also agree to provide such person or\npersons with a copy of this Agreement.\n7.2. You also authorize the Company to provide copies of this Agreement to any of the persons or entities described in subparagraph 7.1 and\nto make such persons aware of Your obligations under this Agreement.\n8. MISCELLANEOUS .\n8.1. This Agreement and the restrictions and obligations in it survive the employment relationship and are binding regardless of the reason\nfor termination of employment.\n5\n8.2. The Agreement is for the benefit of You and of the Company, its successor, assigns, parent corporations, subsidiaries, and/or purchasers.\n8.3. This Agreement is governed by the laws of the Commonwealth of Virginia without regard to the conflicts of laws or principles thereof.\nWith respect to any litigation based on, arising out of, or in connection with this Agreement, You hereby expressly submit to the personal\njurisdiction of the Fairfax County Circuit Court for the Commonwealth of Virginia and of the United States District Court for the Eastern\nDistrict of Virginia. You hereby expressly waive, to the fullest extent permitted by law, any objection that You may now or hereafter have\nto the laying of venue of any such litigation brought in any such court referred to above, including without limitation any claim that any\nsuch litigation has been brought in an inconvenient forum.\n8.4. No waiver by the Company of any breach of any of the provisions of this Agreement is a waiver of any preceding or succeeding breach\nof the same or any other provisions of this Agreement. No waiver shall be effective unless in writing and then only to the extent\nexpressly set forth in writing.\n8.5. Except as expressly provided otherwise in this Agreement, nothing in this Agreement grants a license or permission to use any\nintellectual property of Company, whether owned, pending, or currently under development.\n8.6. This Agreement may be amended by a writing signed by both parties; provided, however, that Schedules A and B to this Agreement may\nbe amended by the Company at any time and the amended schedules attached to this Agreement and made a part of it.\n8.7 You agree that on the subjects covered in this Agreement, it is the entire Agreement between You and the Company, superseding any\nprevious oral or written communications, representations, understanding, or agreements with the Company or with any representative of\nthe Company. By signing this Agreement You represent that You have read and understand this Agreement, You have had an\nopportunity to consult legal counsel concerning this Agreement and that You sign it voluntarily.\nComstock Homebuilding Companies, Inc.\nEmployee\nBy:\nChristopher Clemente\nJoseph M. Squeri\nChief Executive Officer\n6\nSCHEDULE A\nCOMPANY PROPERTY\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August , 2010, Company Property shall include but not be limited to:\n1. All lists of and information pertaining to any Business Partner.\n2. All Confidential Information of the Company.\n3. All notes, files, correspondence (including copies of e-mail or voice mail messages) and memoranda prepared or received in the course\nof employment.\n4. All manuals reports, records, notebooks, plans, photographs, specifications, technical data and drawings prepared or received in the\ncourse of employment.\n5. All computers, printers, computer hardware and software, computer programs, program listings, diskettes, CD’s, DVD’s, audio and\nvideotapes; downloads and source/object codes.\n7\nSCHEDULE B\nCONFIDENTIAL INFORMATION\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August , 2010, Confidential Information shall include but not be limited to the following information where it is not generally known to the\npublic or in the home construction industry (including information conceived, discovered or developed by Employee):\n1. Information relating to the Company’s proprietary rights prior to any public disclosure thereof, including but not limited to the nature of\nthe proprietary rights, discoveries, inventions, works of authorship, techniques, improvements and ideas (whether patentable or not),\nhardware, software, computer programs, source or object codes, documentation, processes, design, concept, development, methods,\ncodes, formulas, production data, technical and engineering data, test data and test results, knowledge of codes for data fields,\ndocumentation manuals (including data dictionaries), the status and details of research and development of products and services, and\ninformation regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets).\n2. Work product resulting from or related to work or projects performed or to be performed for the Company or for clients of the Company,\nincluding but not limited to the interim and final lines of inquiry, hypotheses, research and conclusions related thereto and the methods,\nprocesses, procedures, analyses, techniques and audits used in connection therewith.\n3. Marketing and development plans, marketing strategies, product descriptions and program descriptions, price and cost data, price and fee\namounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and\nforecast assumptions and volumes, and future plans and potential strategies of the Company which have been or are being discussed.\n4. Computer software of any type or form in any stage of actual or anticipated research and development, including but not limited to\nprograms and program modules, routines and subroutines, processes, algorithms, design concepts, design specifications (design notes,\nannotations, documentation, flowcharts, coding sheets, and the like), source code, object code and load modules, programming, program\npatches, data models and systems plans, design, application and documentation.\n5. Internal Company personnel information, employee lists, compensation data, non-public financial information, financial projections and\nbusiness plans and strategy, operational plans, financing and capital-raising plans, activities, and agreements,\n8\nvendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost\ninformation, internal services and operational manuals, and the manner and methods of conducting the Company’s business.\n6. Non-public information pertaining to any Business Partner and its needs or desires with respect to the products and services offered by\nthe Company, including, but not limited to, names of Business Partner and their representatives, proposals, bids, contracts and their\ncontents and parties, data provided to the Company by Business Partner, the type, quantity and specifications of products and services\npurchased, leased, licensed or provided or received by Business Partner and other non-public information.\n7. Any information that a competitor of the Company could use to the competitive disadvantage of the Company.\n9
86a578a6e19238530935b1f54a554b36.pdf	effective_date jurisdiction party term	EX-99.(D)(1) 5 dex99d1.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(1)\nSTRICTLY CONFIDENTIAL\nNon-Disclosure Agreement\nJuly 1, 2005\nOmnicare, Inc.\nNectarine Acquisition Corp.\n100 East RiverCenter Boulevard\nCovington, Kentucky 41011\nAttn: Joel F. Gemunder, President and Chief Executive Officer\nDear Mr. Gemunder:\nIn connection with your consideration of a possible business combination transaction involving all or substantially all (a “Possible\nTransaction”) of the outstanding common stock of NeighborCare, Inc. (collectively with its businesses, subsidiaries and divisions, the “Company”),\nthe Company is prepared to make available to you certain information concerning the business, financial condition, operations, assets and liabilities\nof the Company. In connection with the Possible Transaction, which may involve stock or other securities issued by you, you are prepared to make\navailable to the Company certain information concerning you and your business, financial condition, operations, assets and liabilities. The party\ndisclosing information shall be referred to herein as the “Disclosing Party” and the party receiving information shall be referred to as the “Receiving\nParty.”\nAs a condition to each Receiving Party and their Representatives (as defined below) being furnished with such information, the\nReceiving Party agrees to treat any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its Representatives or\notherwise and irrespective of the form of communication) which is furnished to the Receiving Party or its Representatives now or in the future by or\non behalf of the Disclosing Party (collectively, the “Evaluation Material”) and Discussion Information (as defined below) confidential in accordance\nwith the provisions of this letter agreement, and to take or refrain from taking certain other actions as hereinafter set forth. As used in this letter\nagreement, a party’s “Representatives” shall include the directors, officers, employees, agents, affiliates (as such term is defined under the Securities\nExchange Act of 1934, as amended (the “1934 Act”)), partners, advisors or representatives of such party and those of its subsidiaries, affiliates\nand/or divisions (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and any Representatives of the\nReceiving Party’s advisors).\nThe term “Evaluation Material” shall be deemed to include any notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by the Receiving Party or its Representatives that derive from, contain, reflect or are based upon, in whole or in part, the\ninformation furnished to the Receiving Party or its Representatives pursuant hereto.\nJuly 1, 2005\nPage2of8\nThe term “Evaluation Material” shall also be deemed to include any oral, written or visual information obtained by meeting Representatives of the\nDisclosing Party or touring any of its facilities. The term “Evaluation Material” does not include information which (i) is or becomes generally\navailable to the public other than as a result of a disclosure by the Receiving Party or its Representatives, (ii) was within your possession prior to its\nbeing furnished to you by or on behalf of the Company; provided that the source of such information was not known to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such\ninformation, (iii) was developed independently by the Receiving Party without use, directly or indirectly, of any Evaluation Material or (iv) becomes\navailable to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such\nsource was not known to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany or any other party with respect to such information.\nExcept as otherwise permitted hereunder, the Receiving Party hereby agrees that the Receiving Party and its Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the Evaluation Material and the\nDiscussion Information (as defined below) will be kept confidential and that the Receiving Party and its Representatives will not disclose any of the\nEvaluation Material or the Discussion Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any\ndisclosure of the Evaluation Material or the Discussion Information to which the Disclosing Party gives its prior written consent, and (ii) the\nReceiving Party may make any disclosure of the Evaluation Material or the Discussion Information to such of its Representatives who need to know\nsuch information for the purpose of assisting the Receiving Party in its evaluation of a Possible Transaction, are provided with a copy of this letter\nagreement, agree to keep the Evaluation Material and the Discussion Information confidential and agree to be bound by the terms of this letter\nagreement to the same extent as if they were parties hereto. In any event, the Receiving Party agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material and the Discussion Information, the Receiving Party hereby accepts\nresponsibility for any breach of this letter agreement by any of its Representatives (it being understood that such responsibility shall be in addition to\nand not by way of limitation of any right or remedy that the Company may have against such Representatives), and the Receiving Party agrees at its\nsole expense to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or uses of the Evaluation\nMaterial and the Discussion Information. The Receiving Party understands that some Evaluation Material relating to customers and customer\ncontracts may, and Evaluation Material related to product pricing shall, if provided, be designated for review solely by the Receiving Party’s outside\nadvisors or by those of the Receiving Party’s employees whose responsibilities do not include contacting customers or potential customers of the\nReceiving Party’s institutional pharmacy business or in the determination of product pricing for the Receiving Party’s institutional pharmacy\nbusiness, and the Receiving Party agrees to, and to cause its Representatives to, abide by such designation.\nIn addition, the Receiving Party agrees that, without the prior written consent of the Disclosing Party, the Receiving Party and its\nRepresentatives will not disclose to any other person the fact that the Evaluation Material has been made available to the Receiving Party and\nJuly 1, 2005\nPage3of8\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any of the terms, conditions or other facts\nwith respect thereto, including the status thereof and the identity of the parties thereto (collectively, the “Discussion Information”); provided that, in\nthe event the Receiving Party becomes obligated to make public disclosure of Discussion Information pursuant to its obligations under 1934 Act or\nany other applicable law, rule or regulation, the Receiving Party shall, except as otherwise consented to by the Disclosing Party, limit such disclosure\nto the minimum disclosure so required and, without limiting the foregoing, to the extent the Receiving Party has any discretion with respect thereto,\nthe Receiving Party shall not disclose any possible terms or of any possible transaction involving the Disclosing Party. The term “person” as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity. In the event\nthat the Receiving Party or any of its Representatives are requested or required (either by law, rule, regulation, or other applicable judicial or\ngovernmental order or by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material or Discussion Information, the Receiving Party shall provide the\nDisclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may in its sole discretion and expense\nseek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of its Representatives are nonetheless,\nin the opinion of outside counsel, legally compelled to disclose Evaluation Material or Discussion Information to any tribunal, the Receiving Party or\nits Representatives may, without liability hereunder, disclose to such tribunal only that portion of the Evaluation Material or Discussion Information\nwhich such counsel advises the Receiving Party is legally required to be disclosed, provided that the Receiving Party uses reasonable efforts to\npreserve the confidentiality of the Evaluation Material and the Discussion Information, including, without limitation, by cooperating with the\nDisclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation\nMaterial and the Discussion Information by such tribunal at the Disclosing Party’s expense.\nThe Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and the damage that could result to\nthe Disclosing Party if the Evaluation Material were used or disclosed except as authorized by this letter.\nIn the event that either party decides not to proceed with a Possible Transaction, such party will promptly inform the Company of that\ndecision. Upon the request of the Disclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing\nParty promptly (and in no event later than five business days after the request therefor) deliver to the Disclosing Party or destroy all Evaluation\nMaterial and Discussion Information (and any copies thereof) and cause its Representatives to do the same and the Receiving Party shall provide the\nDisclosing Party with written confirmation of destruction; provided that outside counsel to the Receiving Party may retain one copy of the\nEvaluation Material in confidential restricted access files for use only in the event a dispute arises between the parties hereunder and only if\nreasonably related to such dispute. Notwithstanding the return or destruction of the Evaluation Material and Discussion Information, the Receiving\nParty and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nJuly 1, 2005\nPage4of8\nThe Receiving Party understands, acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or the Discussion Information. The\nReceiving Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or to any of its\nRepresentatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those\nrepresentations or warranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nIn consideration of the Evaluation Material being furnished to the Receiving Party, the Receiving Party hereby agrees that, for a period\nof one year from the date hereof, neither the Receiving Party nor any of its Representatives will solicit to employ (i) any of the officers of the\nDisclosing Party or (ii) any of the employees of the Disclosing Party with whom the Receiving Party has contact or who are specifically identified to\nthe Receiving Party by the Disclosing party or any of its Representatives for purposes hereof during the period of the Receiving Party’s investigation\nof the Disclosing Party, in either case without obtaining the prior written consent of the Disclosing Party; provided, however, that the Receiving\nParty may engage in general solicitations for employees in the ordinary course of business and consistent with past practice and that the Receiving\nParty may solicit or employ any employee of the Disclosing Party six months after such party’s employment has been terminated by the Disclosing\nParty.\nThe Receiving Party acknowledges and agrees that it is aware (and that its Representatives are aware or, prior to receipt of any\nEvaluation Material or Discussion Information, will be advised by the Receiving Party) of the restrictions imposed by the United States federal\nsecurities laws on a person possessing material non-public information about a public company and that the Receiving Party and its Representatives\nwill comply with such laws.\nSubject to the following paragraph, you agree that, for a period of one year from the date of this letter agreement, unless specifically\ninvited in writing by the Company, neither you nor any of your Representatives will in any manner, directly or indirectly: (a) effect or seek, offer or\npropose (whether publicly or otherwise) to effect, or participate in, facilitate or encourage any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options\nto acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries;\nprovided that this paragraph shall not restrict your Representatives or any benefit plan that is maintained for your or your Representatives’\nemployees from acquiring up to an aggregate of two percent (2%) of the outstanding common stock of the Company solely for investment purposes\nor restrict you or your Representatives from acquiring assets from the Company or any of its subsidiaries in the ordinary course of business so long\nas, in either such case, such acquisition is not related to or in furtherance of any other activities by any other person that is restricted by any other\nprovision of this paragraph, (ii) any tender offer or exchange offer, merger or other business combination involving the Company, any of the\nsubsidiaries or assets of the Company or the subsidiaries constituting a significant portion of the\nJuly 1, 2005\nPage5of8\nconsolidated assets of the Company and its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company, including soliciting consents or taking other\naction with respect to the calling of a special meeting of the Company’s shareholders; (b) form, join or in any way participate in a “group” (as\ndefined under the 1934 Act) with respect to the Company; or (c) otherwise act, alone or in concert with others, to seek representation on or to control\nor influence the management, Board of Directors or policies of the Company or to obtain representation on the Board of Directors of the Company.\nYou also agree during such period not to request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this paragraph (including this sentence).\nThe preceding paragraph notwithstanding, (1) you will not be deemed to be in breach of either of clause (a)(i) or (a)(ii) of the preceding\nparagraph by virtue of the maintenance, amendment and/or extension by you or your affiliates of the Offer made by and referred to in the\nSupplement to the Offer to Purchase (the “Supplement”) filed as an exhibit to Amendment No. 28 to the Tender Offer Statement on Schedule TO\nfiled by you and Nectarine Acquisition Corp. with the Securities and Exchange Commission on June 16, 2005) or the announcement,\ncommencement or maintenance by you or your affiliates of a new acquisition offer, whether by way of a tender or exchange offer, merger or\notherwise (a “New Offer”); provided that the terms of the Offer or the New Offer (including any extension or amendment thereof) shall in no event\n(A) provide for a per share consideration that is less than the Offer price in effect on the date of this letter agreement or (B) otherwise contain terms\nand conditions that are less favorable in any material respect to the Company’s shareholders than the terms and conditions set forth in the\nSupplement (an Offer or New Offer made and/or maintained in good faith and meeting the terms of this proviso, a “Status Quo Offer”); (2) you will\nnot be deemed to be in breach of any other provision of the preceding paragraph by virtue of the taking of any action otherwise prohibited by such\nprovisions so long as any such action is taken during the time that such Status Quo Offer is pending and open; and (3) (A) if the Company has\nentered into or enters into any confidentiality agreement in connection with providing any Evaluation Material to any other person, and such other\nconfidentiality agreement (including any amendments thereto) either (i) does not contain a standstill provision or (ii) contains less restrictive\nprovisions than those specified in the immediately preceding paragraph, then the provisions of the immediately preceding paragraph shall be deemed\nto be automatically modified without further action by either party so that the provisions set forth in the immediately preceding paragraph are no less\nfavorable to you than those applicable to such third party and (B) if the Company enters into a binding agreement with another person for a merger\nor business combination transaction as a result of which the Company’s shareholders immediately prior to such transaction would own less than a\nmajority of the voting securities of the combined company following such acquisition or business combination, then the restrictions on you set forth\nin the immediately preceding paragraph shall be deemed to automatically terminate without further action by either party.\nDuring the course of the Receiving Party’s evaluation, all inquiries and other communications are to be made directly to the financial\nadvisors for the Disclosing Party or employees or representatives of the Disclosing Party specified by the Disclosing Party. Accordingly, the\nReceiving Party agrees not to directly or indirectly contact or communicate\nJuly 1, 2005\nPage6of8\nwith any officer, director, employee, agent, customer or creditor of the Disclosing Party concerning a Possible Transaction, or to seek any\ninformation in connection therewith from such person, without the prior consent of the Disclosing Party.\nEach party understands and agrees that no contract or agreement providing for any Possible Transaction shall be deemed to exist\nbetween the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any kind\nwhatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each\nparty further acknowledges and agrees that each party reserves the right, in its sole discretion, to reject any and all proposals made by the other party\nor any of its Representatives with regard to a Possible Transaction, and to terminate discussions and negotiations with the other party at any time and\nthat the Company is under no obligation to engage in any Possible Transaction of any nature with you. It is understood and agreed that no failure or\ndelay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nReceiving Party or any of its Representatives and that the Disclosing Party shall be entitled to equitable relief, including, without limitation,\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby the Receiving Party of this letter agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party. The\nReceiving Party further agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this agreement is or\nwould be compensable by an award of money damages and agree to waive any requirements for the securing or posting of any bond in connection\nwith such remedy.\nThis letter agreement is for the benefit of the Disclosing Party (and its respective subsidiaries and affiliates), and shall be governed by\nand construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within the State of\nNew York. Each party also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork for any actions, suits or proceedings arising out of or relating to this agreement and the transactions contemplated hereby (and each party agrees\nnot to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons,\nnotice or document by U.S. registered mail to such party’s address set forth above shall be effective service of process for any action, suit or\nproceeding brought against the party in any such court). Each party hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the courts of the State of New York,\nand hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding\nbrought in any such court has been brought in an inconvenient forum.\nJuly 1, 2005\nPage7of8\nThis letter agreement contains the entire agreement between the parties regarding its subject matter and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the parties regarding such subject matter.\nNo provision in this agreement can be waived or amended except by written consent of each of the parties, which consent shall\nspecifically refer to this paragraph (or such provision) and explicitly make such waiver or amendment.\nSTRICTLY CONFIDENTIAL\nThis letter agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of\nwhich shall be deemed to constitute a single instrument.\nPlease confirm your agreement with the foregoing by having a duly authorized officer of your organization sign and return one copy of\nthis letter to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nNEIGHBORCARE, INC.\nBy: /S/ JOHN J. ARLOTTA\nName: John J. Arlotta\nTitle: Chairman, President and Chief Executive Officer\nCONFIRMED AND AGREED\nas of the date written above:\nOMNICARE, INC.\nNECTARINE ACQUISITION CORP.\nBy: /S/ CHERYL D. HODGES\nName: Cheryl D. Hodges\nTitle: Senior Vice President and Secretary	EX-99.(D)(1) 5 dex99d1.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(1)\nSTRICTLY CONFIDENTIAL\nNon-Disclosure Agreement\nJuly 1, 2005\nOmnicare, Inc.\nNectarine Acquisition Corp.\n100 East RiverCenter Boulevard\nCovington, Kentucky 41011\nAttn: Joel F. Gemunder, President and Chief Executive Officer\nDear Mr. Gemunder:\nIn connection with your consideration of a possible business combination transaction involving all or substantially all (a “Possible\nTransaction”) of the outstanding common stock of NeighborCare, Inc. (collectively with its businesses, subsidiaries and divisions, the “Company”),\nthe Company is prepared to make available to you certain information concerning the business, financial condition, operations, assets and liabilities\nof the Company. In connection with the Possible Transaction, which may involve stock or other securities issued by you, you are prepared to make\navailable to the Company certain information concerning you and your business, financial condition, operations, assets and liabilities. The party\ndisclosing information shall be referred to herein as the “Disclosing Party” and the party receiving information shall be referred to as the “Receiving\nParty.”\nAs a condition to each Receiving Party and their Representatives (as defined below) being furnished with such information, the\nReceiving Party agrees to treat any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its Representatives or\notherwise and irrespective of the form of communication) which is furnished to the Receiving Party or its Representatives now or in the future by or\non behalf of the Disclosing Party (collectively, the “Evaluation Material”) and Discussion Information (as defined below) confidential in accordance\nwith the provisions of this letter agreement, and to take or refrain from taking certain other actions as hereinafter set forth. As used in this letter\nagreement, a party’s “Representatives” shall include the directors, officers, employees, agents, affiliates (as such term is defined under the Securities\nExchange Act of 1934, as amended (the “1934 Act”)), partners, advisors or representatives of such party and those of its subsidiaries, affiliates\nand/or divisions (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and any Representatives of the\nReceiving Party’s advisors).\nThe term “Evaluation Material” shall be deemed to include any notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by the Receiving Party or its Representatives that derive from, contain, reflect or are based upon, in whole or in part, the\ninformation furnished to the Receiving Party or its Representatives pursuant hereto.\nJuly 1, 2005\nPage 2 of 8\nThe term “Evaluation Material” shall also be deemed to include any oral, written or visual information obtained by meeting Representatives of the\nDisclosing Party or touring any of its facilities. The term “Evaluation Material” does not include information which (i) is or becomes generally\navailable to the public other than as a result of a disclosure by the Receiving Party or its Representatives, (ii) was within your possession prior to its\nbeing furnished to you by or on behalf of the Company; provided that the source of such information was not known to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such\ninformation, (iii) was developed independently by the Receiving Party without use, directly or indirectly, of any Evaluation Material or (iv) becomes\navailable to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such\nsource was not known to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany or any other party with respect to such information.\nExcept as otherwise permitted hereunder, the Receiving Party hereby agrees that the Receiving Party and its Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the Evaluation Material and the\nDiscussion Information (as defined below) will be kept confidential and that the Receiving Party and its Representatives will not disclose any of the\nEvaluation Material or the Discussion Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any\ndisclosure of the Evaluation Material or the Discussion Information to which the Disclosing Party gives its prior written consent, and (ii) the\nReceiving Party may make any disclosure of the Evaluation Material or the Discussion Information to such of its Representatives who need to know\nsuch information for the purpose of assisting the Receiving Party in its evaluation of a Possible Transaction, are provided with a copy of this letter\nagreement, agree to keep the Evaluation Material and the Discussion Information confidential and agree to be bound by the terms of this letter\nagreement to the same extent as if they were parties hereto. In any event, the Receiving Party agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material and the Discussion Information, the Receiving Party hereby accepts\nresponsibility for any breach of this letter agreement by any of its Representatives (it being understood that such responsibility shall be in addition to\nand not by way of limitation of any right or remedy that the Company may have against such Representatives), and the Receiving Party agrees at its\nsole expense to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or uses of the Evaluation\nMaterial and the Discussion Information. The Receiving Party understands that some Evaluation Material relating to customers and customer\ncontracts may, and Evaluation Material related to product pricing shall, if provided, be designated for review solely by the Receiving Party’s outside\nadvisors or by those of the Receiving Party’s employees whose responsibilities do not include contacting customers or potential customers of the\nReceiving Party’s institutional pharmacy business or in the determination of product pricing for the Receiving Party’s institutional pharmacy\nbusiness, and the Receiving Party agrees to, and to cause its Representatives to, abide by such designation.\n \nIn addition, the Receiving Party agrees that, without the prior written consent of the Disclosing Party, the Receiving Party and its\nRepresentatives will not disclose to any other person the fact that the Evaluation Material has been made available to the Receiving Party and\nJuly 1, 2005\nPage 3 of 8\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any of the terms, conditions or other facts\nwith respect thereto, including the status thereof and the identity of the parties thereto (collectively, the “Discussion Information”); provided that, in\nthe event the Receiving Party becomes obligated to make public disclosure of Discussion Information pursuant to its obligations under 1934 Act or\nany other applicable law, rule or regulation, the Receiving Party shall, except as otherwise consented to by the Disclosing Party, limit such disclosure\nto the minimum disclosure so required and, without limiting the foregoing, to the extent the Receiving Party has any discretion with respect thereto,\nthe Receiving Party shall not disclose any possible terms or of any possible transaction involving the Disclosing Party. The term “person” as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity. In the event\nthat the Receiving Party or any of its Representatives are requested or required (either by law, rule, regulation, or other applicable judicial or\ngovernmental order or by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material or Discussion Information, the Receiving Party shall provide the\nDisclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may in its sole discretion and expense\nseek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of its Representatives are nonetheless,\nin the opinion of outside counsel, legally compelled to disclose Evaluation Material or Discussion Information to any tribunal, the Receiving Party or\nits Representatives may, without liability hereunder, disclose to such tribunal only that portion of the Evaluation Material or Discussion Information\nwhich such counsel advises the Receiving Party is legally required to be disclosed, provided that the Receiving Party uses reasonable efforts to\npreserve the confidentiality of the Evaluation Material and the Discussion Information, including, without limitation, by cooperating with the\nDisclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation\nMaterial and the Discussion Information by such tribunal at the Disclosing Party’s expense.\nThe Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and the damage that could result to\nthe Disclosing Party if the Evaluation Material were used or disclosed except as authorized by this letter.\nIn the event that either party decides not to proceed with a Possible Transaction, such party will promptly inform the Company of that\ndecision. Upon the request of the Disclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing\nParty promptly (and in no event later than five business days after the request therefor) deliver to the Disclosing Party or destroy all Evaluation\nMaterial and Discussion Information (and any copies thereof) and cause its Representatives to do the same and the Receiving Party shall provide the\nDisclosing Party with written confirmation of destruction; provided that outside counsel to the Receiving Party may retain one copy of the\nEvaluation Material in confidential restricted access files for use only in the event a dispute arises between the parties hereunder and only if\nreasonably related to such dispute. Notwithstanding the return or destruction of the Evaluation Material and Discussion Information, the Receiving\nParty and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nJuly 1, 2005\nPage 4 of 8\nThe Receiving Party understands, acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or the Discussion Information. The\nReceiving Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or to any of its\nRepresentatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those\nrepresentations or warranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nIn consideration of the Evaluation Material being furnished to the Receiving Party, the Receiving Party hereby agrees that, for a period\nof one year from the date hereof, neither the Receiving Party nor any of its Representatives will solicit to employ (i) any of the officers of the\nDisclosing Party or (ii) any of the employees of the Disclosing Party with whom the Receiving Party has contact or who are specifically identified to\nthe Receiving Party by the Disclosing party or any of its Representatives for purposes hereof during the period of the Receiving Party’s investigation\nof the Disclosing Party, in either case without obtaining the prior written consent of the Disclosing Party; provided, however, that the Receiving\nParty may engage in general solicitations for employees in the ordinary course of business and consistent with past practice and that the Receiving\nParty may solicit or employ any employee of the Disclosing Party six months after such party’s employment has been terminated by the Disclosing\nParty.\nThe Receiving Party acknowledges and agrees that it is aware (and that its Representatives are aware or, prior to receipt of any\nEvaluation Material or Discussion Information, will be advised by the Receiving Party) of the restrictions imposed by the United States federal\nsecurities laws on a person possessing material non-public information about a public company and that the Receiving Party and its Representatives\nwill comply with such laws.\nSubject to the following paragraph, you agree that, for a period of one year from the date of this letter agreement, unless specifically\ninvited in writing by the Company, neither you nor any of your Representatives will in any manner, directly or indirectly: (a) effect or seek, offer or\npropose (whether publicly or otherwise) to effect, or participate in, facilitate or encourage any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options\nto acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries;\nprovided that this paragraph shall not restrict your Representatives or any benefit plan that is maintained for your or your Representatives’\nemployees from acquiring up to an aggregate of two percent (2%) of the outstanding common stock of the Company solely for investment purposes\nor restrict you or your Representatives from acquiring assets from the Company or any of its subsidiaries in the ordinary course of business so long\nas, in either such case, such acquisition is not related to or in furtherance of any other activities by any other person that is restricted by any other\nprovision of this paragraph, (ii) any tender offer or exchange offer, merger or other business combination involving the Company, any of the\nsubsidiaries or assets of the Company or the subsidiaries constituting a significant portion of the\nJuly 1, 2005\nPage 5 of 8\nconsolidated assets of the Company and its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company, including soliciting consents or taking other\naction with respect to the calling of a special meeting of the Company’s shareholders; (b) form, join or in any way participate in a “group” (as\ndefined under the 1934 Act) with respect to the Company; or (c) otherwise act, alone or in concert with others, to seek representation on or to control\nor influence the management, Board of Directors or policies of the Company or to obtain representation on the Board of Directors of the Company.\nYou also agree during such period not to request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this paragraph (including this sentence).\nThe preceding paragraph notwithstanding, (1) you will not be deemed to be in breach of either of clause (a)(i) or (a)(ii) of the preceding\nparagraph by virtue of the maintenance, amendment and/or extension by you or your affiliates of the Offer made by and referred to in the\nSupplement to the Offer to Purchase (the “Supplement”) filed as an exhibit to Amendment No. 28 to the Tender Offer Statement on Schedule TO\nfiled by you and Nectarine Acquisition Corp. with the Securities and Exchange Commission on June 16, 2005) or the announcement,\ncommencement or maintenance by you or your affiliates of a new acquisition offer, whether by way of a tender or exchange offer, merger or\notherwise (a “New Offer”); provided that the terms of the Offer or the New Offer (including any extension or amendment thereof) shall in no event\n(A) provide for a per share consideration that is less than the Offer price in effect on the date of this letter agreement or (B) otherwise contain terms\nand conditions that are less favorable in any material respect to the Company’s shareholders than the terms and conditions set forth in the\nSupplement (an Offer or New Offer made and/or maintained in good faith and meeting the terms of this proviso, a “Status Quo Offer”); (2) you will\nnot be deemed to be in breach of any other provision of the preceding paragraph by virtue of the taking of any action otherwise prohibited by such\nprovisions so long as any such action is taken during the time that such Status Quo Offer is pending and open; and (3) (A) if the Company has\nentered into or enters into any confidentiality agreement in connection with providing any Evaluation Material to any other person, and such other\nconfidentiality agreement (including any amendments thereto) either (i) does not contain a standstill provision or (ii) contains less restrictive\nprovisions than those specified in the immediately preceding paragraph, then the provisions of the immediately preceding paragraph shall be deemed\nto be automatically modified without further action by either party so that the provisions set forth in the immediately preceding paragraph are no less\nfavorable to you than those applicable to such third party and (B) if the Company enters into a binding agreement with another person for a merger\nor business combination transaction as a result of which the Company’s shareholders immediately prior to such transaction would own less than a\nmajority of the voting securities of the combined company following such acquisition or business combination, then the restrictions on you set forth\nin the immediately preceding paragraph shall be deemed to automatically terminate without further action by either party.\nDuring the course of the Receiving Party’s evaluation, all inquiries and other communications are to be made directly to the financial\nadvisors for the Disclosing Party or employees or representatives of the Disclosing Party specified by the Disclosing Party. Accordingly, the\nReceiving Party agrees not to directly or indirectly contact or communicate\nJuly 1, 2005\nPage 6 of 8\nwith any officer, director, employee, agent, customer or creditor of the Disclosing Party concerning a Possible Transaction, or to seek any\ninformation in connection therewith from such person, without the prior consent of the Disclosing Party.\nEach party understands and agrees that no contract or agreement providing for any Possible Transaction shall be deemed to exist\nbetween the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any kind\nwhatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each\nparty further acknowledges and agrees that each party reserves the right, in its sole discretion, to reject any and all proposals made by the other party\nor any of its Representatives with regard to a Possible Transaction, and to terminate discussions and negotiations with the other party at any time and\nthat the Company is under no obligation to engage in any Possible Transaction of any nature with you. It is understood and agreed that no failure or\ndelay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nReceiving Party or any of its Representatives and that the Disclosing Party shall be entitled to equitable relief, including, without limitation,\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby the Receiving Party of this letter agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party. The\nReceiving Party further agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this agreement is or\nwould be compensable by an award of money damages and agree to waive any requirements for the securing or posting of any bond in connection\nwith such remedy.\nThis letter agreement is for the benefit of the Disclosing Party (and its respective subsidiaries and affiliates), and shall be governed by\nand construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within the State of\nNew York. Each party also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork for any actions, suits or proceedings arising out of or relating to this agreement and the transactions contemplated hereby (and each party agrees\nnot to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons,\nnotice or document by U.S. registered mail to such party’s address set forth above shall be effective service of process for any action, suit or\nproceeding brought against the party in any such court). Each party hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the courts of the State of New York,\nand hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding\nbrought in any such court has been brought in an inconvenient forum.\nJuly 1, 2005\nPage 7 of 8\nThis letter agreement contains the entire agreement between the parties regarding its subject matter and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the parties regarding such subject matter.\nNo provision in this agreement can be waived or amended except by written consent of each of the parties, which consent shall\nspecifically refer to this paragraph (or such provision) and explicitly make such waiver or amendment.\nSTRICTLY CONFIDENTTAL\nThis letter agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. Please confirm your agreement with the foregoing by having a duly authorized officer of your organization sign and return one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company. CONFIRMED AND AGREED\nas of the date written above:\nOMNICARE, INC.\nNECTARINE ACQUISITION CORP.\nBy: /S/ CHERYL D. HODGES\nName: Cheryl D. Hodges\nTitle: Senior Vice President and Secretary\nVery truly yours,\nNEIGHBORCARE, INC.\nBy: /S/ JOHN J. ARLOTTA\nName: John J. Arlotta\nTitle: Chairman, President and Chief Executive Officer	EX-99.(D)(1) 5 dex99d1.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(1)\nSTRICTLY CONFIDENTIAL\nNon-Disclosure Agreement\nJuly 1, 2005\nOmnicare, Inc.\nNectarine Acquisition Corp.\n100 East RiverCenter Boulevard\nCovington, Kentucky 41011\nAttn: Joel F. Gemunder, President and Chief Executive Officer\nDear Mr. Gemunder:\nIn\nconnection with your consideration of a possible business combination transaction involving all or substantially all (a "Possible\nTransaction")\nof\nthe\noutstanding\ncommon\nstock\nof\nNeighborCare,\nInc.\n(collectively\nwith\nits\nbusinesses,\nsubsidiaries\nand\ndivisions,\nthe\n"Company."),\nthe Company is prepared to make available to you certain information concerning the business, financial condition, operations, assets and liabilities\nof the Company. In connection with the Possible Transaction, which may involve stock or other securities issued by you, you are prepared to make\navailable to the Company certain information concerning you and your business, financial condition, operations, assets and liabilities. The party\ndisclosing information shall be referred to herein as the "Disclosing Party" and the party receiving information shall be referred to as the "Receiving\nParty."\nAs a condition to each Receiving Party and their Representatives (as defined below) being furnished with such information, the\nReceiving Party agrees to treat any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its Representatives\nor\notherwise and irrespective of the form of communication) which is furnished to the Receiving Party or its Representatives now or in the future by or\non behalf of the Disclosing Party (collectively, the "Evaluation Material") and Discussion Information (as defined below) confidential in accordance\nwith the provisions of this letter agreement, and to take or refrain from taking certain other actions as hereinafter set forth. As used in this letter\nagreement, a party's "Representatives" shall include the directors, officers, employees, agents, affiliates (as such term is defined under the Securities\nExchange Act of 1934, as amended (the "1934 Act")), partners, advisors or representatives of such party and those of its subsidiaries, affiliates\nand/or divisions (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and any Representatives of the\nReceiving Party's advisors).\nThe term "Evaluation Material" shall be deemed to include any notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by the Receiving Party or its Representatives that derive from, contain, reflect or are based upon, in whole or in part, the\ninformation furnished to the Receiving Party or its Representatives pursuant hereto.\nJuly 1, 2005\nPage 2 of 8\nThe term "Evaluation Material" shall also be deemed to include any oral, written or visual information obtained by meeting Representatives of the\nDisclosing Party or touring any of its facilities. The term "Evaluation Material" does not include information which (i) is or becomes generally\navailable to the public other than as a result of a disclosure by the Receiving Party or its Representatives, (ii) was within your possession prior\nto\nits\nbeing furnished to you by or on behalf of the Company; provided that the source of such information was not known to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such\ninformation, (iii) was developed independently by the Receiving Party without use, directly or indirectly, of any Evaluation Material or (iv) becomes\navailable to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such\nsource was not known to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany or any other party with respect to such information.\nExcept as otherwise permitted hereunder, the Receiving Party hereby agrees that the Receiving Party and its Representatives shall\nuse\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the Evaluation Material and the\nDiscussion Information (as defined below) will be kept confidential and that the Receiving Party and its Representatives will not disclose any of\nthe\nEvaluation Material or the Discussion Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any\ndisclosure of the Evaluation Material or the Discussion Information to which the Disclosing Party gives its prior written consent, and (ii) the\nReceiving Party may make any disclosure of the Evaluation Material or the Discussion Information to such of its Representatives who need to know\nsuch information for the purpose of assisting the Receiving Party in its evaluation of a Possible Transaction, are provided with a copy of this letter\nagreement, agree to keep the Evaluation Material and the Discussion Information confidential and agree to be bound by the terms of this letter\nagreement to the same extent as if they were parties hereto. In any event, the Receiving Party agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material and the Discussion Information, the Receiving Party hereby accepts\nresponsibility for any breach of this letter agreement by any of its Representatives (it being understood that such responsibility shall be in addition\nto\nand not by way of limitation of any right or remedy that the Company may have against such Representatives), and the Receiving Party agrees at its\nsole expense to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or uses of the Evaluation\nMaterial and the Discussion Information. The Receiving Party understands that some Evaluation Material relating to customers and customer\ncontracts may, and Evaluation Material related to product pricing shall, if provided, be designated for review solely by the Receiving Party's outside\nadvisors or by those of the Receiving Party's employees whose responsibilities do not include contacting customers or potential customers of the\nReceiving Party's institutional pharmacy business or in the determination of product pricing for the Receiving Party's institutional pharmacy\nbusiness, and the Receiving Party agrees to, and to cause its Representatives to, abide by such designation.\nIn addition, the Receiving Party agrees that, without the prior written consent of the Disclosing Party, the Receiving Party and its\nRepresentatives will not disclose to any other person the fact that the Evaluation Material has been made available to the Receiving Party and\nJuly 1, 2005\nPage 3 of 8\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any of the terms, conditions or other facts\nwith respect thereto, including the status thereof and the identity of the parties thereto (collectively, the "Discussion Information"); provided that, in\nthe\nevent\nthe Receiving Party becomes obligated to make public disclosure of Discussion Information pursuant to its obligations under 1934 Act or\nany other applicable law, rule or regulation, the Receiving Party shall, except as otherwise consented to by the Disclosing Party, limit such disclosure\nto the minimum disclosure so required and, without limiting the foregoing, to the extent the Receiving Party has any discretion with respect thereto,\nthe Receiving Party shall not disclose any possible terms or of any possible transaction involving the Disclosing Party. The term "person" as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity. In the event\nthat the Receiving Party or any of its Representatives are requested or required (either by law, rule, regulation, or other applicable judicial or\ngovernmental order or by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material or Discussion Information, the Receiving Party shall provide the\nDisclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may in its sole discretion and expense\nseek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of\na\nprotective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of its Representatives are nonetheless,\nin the opinion of outside counsel, legally compelled to disclose Evaluation Material or Discussion Information to any tribunal, the Receiving Party\nor\nits Representatives may, without liability hereunder, disclose to such tribunal only that portion of the Evaluation Material or Discussion Information\nwhich such counsel advises the Receiving Party is legally required to be disclosed, provided that the Receiving Party uses reasonable efforts to\npreserve the confidentiality of the Evaluation Material and the Discussion Information, including, without limitation, by cooperating with the\nDisclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation\nMaterial and the Discussion Information by such tribunal at the Disclosing Party's expense.\nThe Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and the damage that could result to\nthe Disclosing Party if the Evaluation Material were used or disclosed except as authorized by this letter.\nIn the event that either party decides not to proceed with a Possible Transaction, such party will promptly inform the Company of that\ndecision. Upon the request of the Disclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing\nParty promptly (and in no event later than five business days after the request therefor) deliver to the Disclosing Party or destroy all Evaluation\nMaterial and Discussion Information (and any copies thereof) and cause its Representatives to do the same and the Receiving Party shall provide the\nDisclosing Party with written confirmation of destruction; provided that outside counsel to the Receiving Party may retain one copy of the\nEvaluation Material in confidential restricted access files for use only in the event a dispute arises between the parties hereunder and only if\nreasonably related to such dispute. Notwithstanding the return or destruction of the Evaluation Material and Discussion Information, the Receiving\nParty and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nJuly 1, 2005\nPage 4 of 8\nThe Receiving Party understands, acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or the Discussion Information. The\nReceiving Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or to any of its\nRepresentatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those\nrepresentations or warranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nIn consideration of the Evaluation Material being furnished to the Receiving Party, the Receiving Party hereby agrees that, for a period\nof one year from the date hereof, neither the Receiving Party nor any of its Representatives will solicit to employ (i) any of the officers of the\nDisclosing Party or (ii) any of the employees of the Disclosing Party with whom the Receiving Party has contact or who are specifically identified to\nthe Receiving Party by the Disclosing party or any of its Representatives for purposes hereof during the period of the Receiving Party's investigation\nof the Disclosing Party, in either case without obtaining the prior written consent of the Disclosing Party; provided, however, that the Receiving\nParty may engage in general solicitations for employees in the ordinary course of business and consistent with past practice and that the Receiving\nParty may solicit or employ any employee of the Disclosing Party six months after such party's employment has been terminated by the Disclosing\nParty.\nThe Receiving Party acknowledges and agrees that it is aware (and that its Representatives are aware or, prior to receipt of any\nEvaluation Material or Discussion Information, will be advised by the Receiving Party) of the restrictions imposed by the United States federal\nsecurities laws on a person possessing material non-public information about a public company and that the Receiving Party and its Representatives\nwill comply with such laws.\nSubject to the following paragraph, you agree that, for a period of one year from the date of this letter agreement, unless specifically\ninvited in writing by the Company, neither you nor any of your Representatives will in any manner, directly or indirectly: (a) effect or seek, offer or\npropose (whether publicly or otherwise) to effect, or participate in, facilitate or encourage any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options\nto acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries;\nprovided that this paragraph shall not restrict your Representatives or any benefit plan that is maintained for your or your Representatives'\nemployees from acquiring up to an aggregate of two percent (2%) of the outstanding common stock of the Company solely for investment purposes\nor restrict you or your Representatives from acquiring assets from the Company or any of its subsidiaries in the ordinary course of business so long\nas,\nin either such case, such acquisition is not related to or in furtherance of any other activities by any other person that is restricted by any other\nprovision of this paragraph, (ii) any tender offer or exchange offer, merger or other business combination involving the Company, any of the\nsubsidiaries or assets of the Company or the subsidiaries constituting a significant portion of the\nJuly 1, 2005\nPage 5 of 8\nconsolidated assets of the Company and its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries, or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules\nof\nthe\nSecurities and Exchange Commission) or consents to vote any voting securities of the Company, including soliciting consents or taking other\naction with respect to the calling of a special meeting of the Company's shareholders; (b) form, join or in any way participate in a "group" (as\ndefined under the 1934 Act) with respect to the Company; or (c) otherwise act, alone or in concert with others, to seek representation on or to control\nor influence the management, Board of Directors or policies of the Company or to obtain representation on the Board of Directors of the Company.\nYou also agree during such period not to request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this paragraph (including this sentence).\nThe preceding paragraph notwithstanding, (1) you will not be deemed to be in breach of either of clause (a)(i) or (a)(ii) of the preceding\nparagraph by virtue of the maintenance, amendment and/or extension by you or your affiliates of the Offer made by and referred to in the\nSupplement to the Offer to Purchase (the "Supplement") filed as an exhibit to Amendment No. 28 to the Tender Offer Statement on Schedule TO\nfiled by you and Nectarine Acquisition Corp. with the Securities and Exchange Commission on June 16, 2005) or the announcement,\ncommencement or maintenance by you or your affiliates of a new acquisition offer, whether by way of a tender or exchange offer, merger\nor\notherwise (a "New Offer"); provided that the terms of the Offer or the New Offer (including any extension or amendment thereof) shall in no event\n(A) provide for a per share consideration that is less than the Offer price in effect on the date of this letter agreement or (B) otherwise contain terms\nand conditions that are less favorable in any material respect to the Company's shareholders than the terms and conditions set forth in the\nSupplement (an Offer or New Offer made and/or maintained in good faith and meeting the terms of this proviso, a "Status Quo Offer"); (2) you will\nnot be deemed to be in breach of any other provision of the preceding paragraph by virtue of the taking of any action otherwise prohibited by such\nprovisions so long as any such action is taken during the time that such Status Quo Offer is pending and open; and (3) (A) if the Company\nhas\nentered into or enters into any confidentiality agreement in connection with providing any Evaluation Material to any other person, and such other\nconfidentiality agreement (including any amendments thereto) either (i) does not contain a standstill provision or (ii) contains less restrictive\nprovisions than those specified in the immediately preceding paragraph, then the provisions of the immediately preceding paragraph shall be deemed\nto be automatically modified without further action by either party so that the provisions set forth in the immediately preceding paragraph are no less\nfavorable to you than those applicable to such third party and (B) if the Company enters into a binding agreement with another person for a merger\nor business combination transaction as a result of which the Company's shareholders immediately prior to such transaction would own less than a\nmajority of the voting securities of the combined company following such acquisition or business combination, then the restrictions on you set forth\nin the immediately preceding paragraph shall be deemed to automatically terminate without further action by either party.\nDuring the course of the Receiving Party's evaluation, all inquiries and other communications are to be made directly to the financial\nadvisors for the Disclosing Party or employees or representatives of the Disclosing Party specified by the Disclosing Party. Accordingly, the\nReceiving Party agrees not to directly or indirectly contact or communicate\nJuly 1, 2005\nPage 6 of 8\nwith any officer, director, employee, agent, customer or creditor of the Disclosing Party concerning a Possible Transaction, or to seek any\ninformation in connection therewith from such person, without the prior consent of the Disclosing Party.\nEach party understands and agrees that no contract or agreement providing for any Possible Transaction shall be deemed to\nexist\nbetween the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any kind\nwhatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each\nparty further acknowledges and agrees that each party reserves the right, in its sole discretion, to reject any and all proposals made by the other party\nor\nany of its Representatives with regard to a Possible Transaction, and to terminate discussions and negotiations with the other party at any time and\nthat the Company is under no obligation to engage in any Possible Transaction of any nature with you. It is understood and agreed that no failure or\ndelay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nReceiving Party or any of its Representatives and that the Disclosing Party shall be entitled to equitable relief, including, without limitation,\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby the Receiving Party of this letter agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party.\nThe\nReceiving Party further agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this agreement is or\nwould be compensable by an award of money damages and agree to waive any requirements for the securing or posting of any bond in connection\nwith such remedy.\nThis letter agreement is for the benefit of the Disclosing Party (and its respective subsidiaries and affiliates), and shall be governed by\nand construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within the State of\nNew York. Each party also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork for any actions, suits or proceedings arising out of or relating to this agreement and the transactions contemplated hereby (and each party agrees\nnot to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons,\nnotice or document by U.S. registered mail to such party's address set forth above shall be effective service of process for any action, suit or\nproceeding brought against the party in any such court). Each party hereby irrevocably and unconditionally waives any objection to the laying\nof\nvenue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the courts of the State of New York,\nand hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding\nbrought in any such court has been brought in an inconvenient forum.\nJuly 1, 2005\nPage 7 of 8\nThis letter agreement contains the entire agreement between the parties regarding its subject matter and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the parties regarding such subject matter.\nNo provision in this agreement can be waived or amended except by written consent of each of the parties, which consent shal\nspecifically refer to this paragraph (or such provision) and explicitly make such waiver or amendment.\nSTRICTLY CONFIDENTIAL\nThis letter agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of\nwhich shall be deemed to constitute a single instrument.\nPlease confirm your agreement with the foregoing by having a duly authorized officer of your organization sign and return one copy of\nthis letter to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nNEIGHBORCARE, INC.\nBy:\n/S/ JOHN J. ARLOTTA\nName: John J. Arlotta\nTitle: Chairman, President and Chief Executive Officer\nCONFIRMED AND AGREED\nas of the date written above:\nOMNICARE, INC.\nNECTARINE ACQUISITION CORP.\nBy:\n/s/ CHERYL D. HODGES\nName: Cheryl D. Hodges\nTitle: Senior Vice President and Secretary	EX-99.(D)(1) 5 dex99d1.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(1)\nSTRICTLY CONFIDENTIAL\nNon-Disclosure Agreement\nJuly 1, 2005\nOmnicare, Inc.\nNectarine Acquisition Corp.\n100 East RiverCenter Boulevard\nCovington, Kentucky 41011\nAttn: Joel F. Gemunder, President and Chief Executive Officer\nDear Mr. Gemunder:\nIn connection with your consideration of a possible business combination transaction involving all or substantially all (a “Possible\nTransaction”) of the outstanding common stock of NeighborCare, Inc. (collectively with its businesses, subsidiaries and divisions, the “Company”),\nthe Company is prepared to make available to you certain information concerning the business, financial condition, operations, assets and liabilities\nof the Company. In connection with the Possible Transaction, which may involve stock or other securities issued by you, you are prepared to make\navailable to the Company certain information concerning you and your business, financial condition, operations, assets and liabilities. The party\ndisclosing information shall be referred to herein as the “Disclosing Party” and the party receiving information shall be referred to as the “Receiving\nParty.”\nAs a condition to each Receiving Party and their Representatives (as defined below) being furnished with such information, the\nReceiving Party agrees to treat any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its Representatives or\notherwise and irrespective of the form of communication) which is furnished to the Receiving Party or its Representatives now or in the future by or\non behalf of the Disclosing Party (collectively, the “Evaluation Material”) and Discussion Information (as defined below) confidential in accordance\nwith the provisions of this letter agreement, and to take or refrain from taking certain other actions as hereinafter set forth. As used in this letter\nagreement, a party’s “Representatives” shall include the directors, officers, employees, agents, affiliates (as such term is defined under the Securities\nExchange Act of 1934, as amended (the “1934 Act”)), partners, advisors or representatives of such party and those of its subsidiaries, affiliates\nand/or divisions (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and any Representatives of the\nReceiving Party’s advisors).\nThe term “Evaluation Material” shall be deemed to include any notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by the Receiving Party or its Representatives that derive from, contain, reflect or are based upon, in whole or in part, the\ninformation furnished to the Receiving Party or its Representatives pursuant hereto.\nJuly 1, 2005\nPage2of8\nThe term “Evaluation Material” shall also be deemed to include any oral, written or visual information obtained by meeting Representatives of the\nDisclosing Party or touring any of its facilities. The term “Evaluation Material” does not include information which (i) is or becomes generally\navailable to the public other than as a result of a disclosure by the Receiving Party or its Representatives, (ii) was within your possession prior to its\nbeing furnished to you by or on behalf of the Company; provided that the source of such information was not known to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such\ninformation, (iii) was developed independently by the Receiving Party without use, directly or indirectly, of any Evaluation Material or (iv) becomes\navailable to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such\nsource was not known to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany or any other party with respect to such information.\nExcept as otherwise permitted hereunder, the Receiving Party hereby agrees that the Receiving Party and its Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the Evaluation Material and the\nDiscussion Information (as defined below) will be kept confidential and that the Receiving Party and its Representatives will not disclose any of the\nEvaluation Material or the Discussion Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any\ndisclosure of the Evaluation Material or the Discussion Information to which the Disclosing Party gives its prior written consent, and (ii) the\nReceiving Party may make any disclosure of the Evaluation Material or the Discussion Information to such of its Representatives who need to know\nsuch information for the purpose of assisting the Receiving Party in its evaluation of a Possible Transaction, are provided with a copy of this letter\nagreement, agree to keep the Evaluation Material and the Discussion Information confidential and agree to be bound by the terms of this letter\nagreement to the same extent as if they were parties hereto. In any event, the Receiving Party agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material and the Discussion Information, the Receiving Party hereby accepts\nresponsibility for any breach of this letter agreement by any of its Representatives (it being understood that such responsibility shall be in addition to\nand not by way of limitation of any right or remedy that the Company may have against such Representatives), and the Receiving Party agrees at its\nsole expense to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or uses of the Evaluation\nMaterial and the Discussion Information. The Receiving Party understands that some Evaluation Material relating to customers and customer\ncontracts may, and Evaluation Material related to product pricing shall, if provided, be designated for review solely by the Receiving Party’s outside\nadvisors or by those of the Receiving Party’s employees whose responsibilities do not include contacting customers or potential customers of the\nReceiving Party’s institutional pharmacy business or in the determination of product pricing for the Receiving Party’s institutional pharmacy\nbusiness, and the Receiving Party agrees to, and to cause its Representatives to, abide by such designation.\nIn addition, the Receiving Party agrees that, without the prior written consent of the Disclosing Party, the Receiving Party and its\nRepresentatives will not disclose to any other person the fact that the Evaluation Material has been made available to the Receiving Party and\nJuly 1, 2005\nPage3of8\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any of the terms, conditions or other facts\nwith respect thereto, including the status thereof and the identity of the parties thereto (collectively, the “Discussion Information”); provided that, in\nthe event the Receiving Party becomes obligated to make public disclosure of Discussion Information pursuant to its obligations under 1934 Act or\nany other applicable law, rule or regulation, the Receiving Party shall, except as otherwise consented to by the Disclosing Party, limit such disclosure\nto the minimum disclosure so required and, without limiting the foregoing, to the extent the Receiving Party has any discretion with respect thereto,\nthe Receiving Party shall not disclose any possible terms or of any possible transaction involving the Disclosing Party. The term “person” as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity. In the event\nthat the Receiving Party or any of its Representatives are requested or required (either by law, rule, regulation, or other applicable judicial or\ngovernmental order or by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material or Discussion Information, the Receiving Party shall provide the\nDisclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may in its sole discretion and expense\nseek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of its Representatives are nonetheless,\nin the opinion of outside counsel, legally compelled to disclose Evaluation Material or Discussion Information to any tribunal, the Receiving Party or\nits Representatives may, without liability hereunder, disclose to such tribunal only that portion of the Evaluation Material or Discussion Information\nwhich such counsel advises the Receiving Party is legally required to be disclosed, provided that the Receiving Party uses reasonable efforts to\npreserve the confidentiality of the Evaluation Material and the Discussion Information, including, without limitation, by cooperating with the\nDisclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation\nMaterial and the Discussion Information by such tribunal at the Disclosing Party’s expense.\nThe Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and the damage that could result to\nthe Disclosing Party if the Evaluation Material were used or disclosed except as authorized by this letter.\nIn the event that either party decides not to proceed with a Possible Transaction, such party will promptly inform the Company of that\ndecision. Upon the request of the Disclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing\nParty promptly (and in no event later than five business days after the request therefor) deliver to the Disclosing Party or destroy all Evaluation\nMaterial and Discussion Information (and any copies thereof) and cause its Representatives to do the same and the Receiving Party shall provide the\nDisclosing Party with written confirmation of destruction; provided that outside counsel to the Receiving Party may retain one copy of the\nEvaluation Material in confidential restricted access files for use only in the event a dispute arises between the parties hereunder and only if\nreasonably related to such dispute. Notwithstanding the return or destruction of the Evaluation Material and Discussion Information, the Receiving\nParty and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nJuly 1, 2005\nPage4of8\nThe Receiving Party understands, acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or the Discussion Information. The\nReceiving Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or to any of its\nRepresentatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those\nrepresentations or warranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nIn consideration of the Evaluation Material being furnished to the Receiving Party, the Receiving Party hereby agrees that, for a period\nof one year from the date hereof, neither the Receiving Party nor any of its Representatives will solicit to employ (i) any of the officers of the\nDisclosing Party or (ii) any of the employees of the Disclosing Party with whom the Receiving Party has contact or who are specifically identified to\nthe Receiving Party by the Disclosing party or any of its Representatives for purposes hereof during the period of the Receiving Party’s investigation\nof the Disclosing Party, in either case without obtaining the prior written consent of the Disclosing Party; provided, however, that the Receiving\nParty may engage in general solicitations for employees in the ordinary course of business and consistent with past practice and that the Receiving\nParty may solicit or employ any employee of the Disclosing Party six months after such party’s employment has been terminated by the Disclosing\nParty.\nThe Receiving Party acknowledges and agrees that it is aware (and that its Representatives are aware or, prior to receipt of any\nEvaluation Material or Discussion Information, will be advised by the Receiving Party) of the restrictions imposed by the United States federal\nsecurities laws on a person possessing material non-public information about a public company and that the Receiving Party and its Representatives\nwill comply with such laws.\nSubject to the following paragraph, you agree that, for a period of one year from the date of this letter agreement, unless specifically\ninvited in writing by the Company, neither you nor any of your Representatives will in any manner, directly or indirectly: (a) effect or seek, offer or\npropose (whether publicly or otherwise) to effect, or participate in, facilitate or encourage any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options\nto acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries;\nprovided that this paragraph shall not restrict your Representatives or any benefit plan that is maintained for your or your Representatives’\nemployees from acquiring up to an aggregate of two percent (2%) of the outstanding common stock of the Company solely for investment purposes\nor restrict you or your Representatives from acquiring assets from the Company or any of its subsidiaries in the ordinary course of business so long\nas, in either such case, such acquisition is not related to or in furtherance of any other activities by any other person that is restricted by any other\nprovision of this paragraph, (ii) any tender offer or exchange offer, merger or other business combination involving the Company, any of the\nsubsidiaries or assets of the Company or the subsidiaries constituting a significant portion of the\nJuly 1, 2005\nPage5of8\nconsolidated assets of the Company and its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company, including soliciting consents or taking other\naction with respect to the calling of a special meeting of the Company’s shareholders; (b) form, join or in any way participate in a “group” (as\ndefined under the 1934 Act) with respect to the Company; or (c) otherwise act, alone or in concert with others, to seek representation on or to control\nor influence the management, Board of Directors or policies of the Company or to obtain representation on the Board of Directors of the Company.\nYou also agree during such period not to request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this paragraph (including this sentence).\nThe preceding paragraph notwithstanding, (1) you will not be deemed to be in breach of either of clause (a)(i) or (a)(ii) of the preceding\nparagraph by virtue of the maintenance, amendment and/or extension by you or your affiliates of the Offer made by and referred to in the\nSupplement to the Offer to Purchase (the “Supplement”) filed as an exhibit to Amendment No. 28 to the Tender Offer Statement on Schedule TO\nfiled by you and Nectarine Acquisition Corp. with the Securities and Exchange Commission on June 16, 2005) or the announcement,\ncommencement or maintenance by you or your affiliates of a new acquisition offer, whether by way of a tender or exchange offer, merger or\notherwise (a “New Offer”); provided that the terms of the Offer or the New Offer (including any extension or amendment thereof) shall in no event\n(A) provide for a per share consideration that is less than the Offer price in effect on the date of this letter agreement or (B) otherwise contain terms\nand conditions that are less favorable in any material respect to the Company’s shareholders than the terms and conditions set forth in the\nSupplement (an Offer or New Offer made and/or maintained in good faith and meeting the terms of this proviso, a “Status Quo Offer”); (2) you will\nnot be deemed to be in breach of any other provision of the preceding paragraph by virtue of the taking of any action otherwise prohibited by such\nprovisions so long as any such action is taken during the time that such Status Quo Offer is pending and open; and (3) (A) if the Company has\nentered into or enters into any confidentiality agreement in connection with providing any Evaluation Material to any other person, and such other\nconfidentiality agreement (including any amendments thereto) either (i) does not contain a standstill provision or (ii) contains less restrictive\nprovisions than those specified in the immediately preceding paragraph, then the provisions of the immediately preceding paragraph shall be deemed\nto be automatically modified without further action by either party so that the provisions set forth in the immediately preceding paragraph are no less\nfavorable to you than those applicable to such third party and (B) if the Company enters into a binding agreement with another person for a merger\nor business combination transaction as a result of which the Company’s shareholders immediately prior to such transaction would own less than a\nmajority of the voting securities of the combined company following such acquisition or business combination, then the restrictions on you set forth\nin the immediately preceding paragraph shall be deemed to automatically terminate without further action by either party.\nDuring the course of the Receiving Party’s evaluation, all inquiries and other communications are to be made directly to the financial\nadvisors for the Disclosing Party or employees or representatives of the Disclosing Party specified by the Disclosing Party. Accordingly, the\nReceiving Party agrees not to directly or indirectly contact or communicate\nJuly 1, 2005\nPage6of8\nwith any officer, director, employee, agent, customer or creditor of the Disclosing Party concerning a Possible Transaction, or to seek any\ninformation in connection therewith from such person, without the prior consent of the Disclosing Party.\nEach party understands and agrees that no contract or agreement providing for any Possible Transaction shall be deemed to exist\nbetween the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any kind\nwhatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each\nparty further acknowledges and agrees that each party reserves the right, in its sole discretion, to reject any and all proposals made by the other party\nor any of its Representatives with regard to a Possible Transaction, and to terminate discussions and negotiations with the other party at any time and\nthat the Company is under no obligation to engage in any Possible Transaction of any nature with you. It is understood and agreed that no failure or\ndelay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nReceiving Party or any of its Representatives and that the Disclosing Party shall be entitled to equitable relief, including, without limitation,\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby the Receiving Party of this letter agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party. The\nReceiving Party further agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this agreement is or\nwould be compensable by an award of money damages and agree to waive any requirements for the securing or posting of any bond in connection\nwith such remedy.\nThis letter agreement is for the benefit of the Disclosing Party (and its respective subsidiaries and affiliates), and shall be governed by\nand construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within the State of\nNew York. Each party also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork for any actions, suits or proceedings arising out of or relating to this agreement and the transactions contemplated hereby (and each party agrees\nnot to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons,\nnotice or document by U.S. registered mail to such party’s address set forth above shall be effective service of process for any action, suit or\nproceeding brought against the party in any such court). Each party hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the courts of the State of New York,\nand hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding\nbrought in any such court has been brought in an inconvenient forum.\nJuly 1, 2005\nPage7of8\nThis letter agreement contains the entire agreement between the parties regarding its subject matter and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the parties regarding such subject matter.\nNo provision in this agreement can be waived or amended except by written consent of each of the parties, which consent shall\nspecifically refer to this paragraph (or such provision) and explicitly make such waiver or amendment.\nSTRICTLY CONFIDENTIAL\nThis letter agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of\nwhich shall be deemed to constitute a single instrument.\nPlease confirm your agreement with the foregoing by having a duly authorized officer of your organization sign and return one copy of\nthis letter to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nNEIGHBORCARE, INC.\nBy: /S/ JOHN J. ARLOTTA\nName: John J. Arlotta\nTitle: Chairman, President and Chief Executive Officer\nCONFIRMED AND AGREED\nas of the date written above:\nOMNICARE, INC.\nNECTARINE ACQUISITION CORP.\nBy: /S/ CHERYL D. HODGES\nName: Cheryl D. Hodges\nTitle: Senior Vice President and Secretary
86e9c90fa3986691fcb140266f514c7d.pdf	effective_date jurisdiction party term	EX-10.10 10 d191007dex1010.htm FORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nIn recognition of the critical role that you play as an executive with Delphi Automotive LLP and/or one of its direct or indirect subsidiaries or\naffiliates (collectively, “Delphi” or the “Company”), and as consideration for any and all awards to be granted to you under the Delphi Automotive\nLLP 2010 Management Value Creation Plan (“Value Creation Plan”) and/or for other good and valuable consideration, you (“Employee” or “you”)\nagree to the terms and conditions of this Confidentiality and Noninterference Agreement (this “Agreement”) as follows:\n1. Covenants.\n(a) You acknowledge and agree that: (i) as an executive, you have been and will be exposed to some of the most sensitive and\nconfidential information possessed by or relating to Delphi, including strategic plans, marketing plans, information regarding long-term business\nopportunities and information regarding the development status of specific Company products, as well as extensive assessments of the competitive\nlandscape of the industries in which the Company competes; and (ii) this information represents the product of the Company’s substantial investment\nin research and innovation, is critical to the Company’s competitive success, is disclosed to the Company’s executives only on a strictly confidential\nbasis, and is not made accessible to the public or to the Company’s competitors.\n(b) You further acknowledge and agree that: (i) the business in which the Company is engaged is intensely competitive and that your\nposition and employment by Delphi has required, and will continue to require, that you have access to, and knowledge of, valuable and sensitive\ninformation relating to Delphi and its business including, but not limited to, information relating to its products and product development, pricing,\nengineering and design specifications, trade secrets, customers, suppliers, unique and/or proprietary software and source code, and marketing plans\n(collectively, “Confidential Information”); (ii) the direct or indirect disclosure of such Confidential Information would place the Company at a\nserious competitive disadvantage and would do serious damage, financial and otherwise, to the business of the Company and may constitute\nmisappropriation and/or improper use of trade secrets in violation of applicable laws; (iii) you have been and will be given access to, and have been\nor will be able to develop relationships with, customers, suppliers and employees of the Company at the time and expense of the Company; and\n(iv) by your training, experience and expertise, your services to the Company are, and will continue to be, extraordinary, special and unique.\n(c) You acknowledge and agree that you will keep in strict confidence, and will not, directly or indirectly, at any time during or after your\nemployment with Delphi, disclose, furnish, disseminate, make available or use Confidential Information of the Company or its customers or\nsuppliers, without limitation as to when or how you may have acquired such information, other than in the proper performance of your duties to\nDelphi, unless and until such Confidential Information is or shall become general public knowledge through no fault of yours. You specifically\nacknowledge that all such information, whether written or oral, or in electronic format, or maintained in your mind or memory and whether compiled\nby the Company, and/or you, derives independent economic value from not being readily known to or ascertainable by\nproper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by the Company to\nmaintain the secrecy of such information, that such information is the sole property of the Company and that any retention and use of such\ninformation by you during or after your employment with Delphi (except in the course of performing your duties and obligations as an executive)\nshall constitute a misappropriation of the Company’s trade secrets. In the event that you are required by law to disclose any Confidential\nInformation, you agree to give Delphi prompt advance written notice thereof and to provide Delphi with reasonable assistance in obtaining an order\nto protect the Confidential Information from public disclosure.\n(d) You acknowledge and agree that: (i) the Business (as defined below) is intensely competitive and conducted by Delphi throughout\nthe world; and (ii) reasonable limits on your ability to engage in activities that are competitive with Delphi are warranted in order to, among other\nthings, reasonably protect the Confidential Information of Delphi and Delphi’s reputation, customer relationships, goodwill and overall status in the\nmarketplace for which Delphi has invested substantial time and resources. You acknowledge and agree that:\n(i) During your employment and for twelve (12) months after the termination of your employment by you or by Delphi for any\nreason, you will not directly or indirectly engage in Competition (as defined below) with Delphi; or\n(ii) During your employment and for twenty-four (24) months after the termination of your employment by you or by Delphi for\nany reason, you will not directly or indirectly:\n(1) Solicit for your benefit or the benefit of any other person or entity, business of the same or of a similar nature to the\nBusiness (as defined below) from any customer that is doing business with Delphi, provided that after termination of your employment,\nthis restriction shall not apply to any entity that was not a customer of Delphi during the six (6) month period immediately preceding the\ntermination of your employment;\n(2) Solicit for your benefit or the benefit of any other person or entity from any known potential customer of Delphi, business\nof the same or of a similar nature to the Business that has been the subject of a known written or oral bid, offer or proposal by Delphi, or\nof substantial preparation with a view to making such a bid, proposal or offer, provided that after termination of your employment, this\nrestriction shall only apply to a potential customer if the bid, proposal or offer, or substantial preparation for making a bid, proposal or\noffer occurred during the six (6) month period immediately preceding the termination of your employment; or\n(3) Otherwise interfere with the Business of Delphi, including, but not limited to, with respect to any relationship or\nagreement between Delphi and any supplier to Delphi during the period of your employment, provided that after termination of your\nemployment, this restriction shall only apply to relationships or agreements in effect during the six (6) month period immediately\npreceding the termination of your employment; or\n2\n(4) Solicit for your benefit or the benefit of any other person or entity, the employment or services of, or hire or engage, any\nindividual who was known to be employed or engaged by Delphi during the period of your employment, provided that after the\ntermination of your employment, this restriction shall only apply to individuals who were so employed or engaged during the six\n(6) month period immediately preceding the termination of your employment, and provided further, that this restriction will not prohibit\nsolicitation or hiring of any individual whose employment was involuntarily terminated by Delphi, provided at the time of such\nsolicitation or hiring you are not engaged in Competition with Delphi and no solicitation of such individual occurred while he or she was\nemployed by Delphi.\n2. Definitions.\n(a) For purposes of this Agreement, “Competition” by you shall mean your engaging in, or otherwise directly or indirectly being\nemployed by or acting as a consultant or lender to, or being a director, officer, employee, principal, agent, stockholder, member, owner or partner of,\nor permitting your name to be used in connection with the activities of any other business or organization anywhere in the world that competes,\ndirectly or indirectly, with Delphi in the Business; provided, however, it shall not be a violation of this Agreement for you to become the registered\nor beneficial owner of up to five percent (5%) of any class of stock of any entity in Competition with Delphi that is publicly traded on a recognized\ndomestic or foreign securities exchange, provided that you do not otherwise participate in the business of such corporation.\n(b) For purposes of this Agreement, “Business” means the creation, development, manufacture, sale, promotion and distribution of\nvehicle electronics, transportation components, integrated systems and modules, electronic technology and other products and services which Delphi\nengages in, or is preparing to become engaged in, at the time of your termination.\n(c) For purposes of this Agreement, the term “Cause” shall have the meaning ascribed to such term in the Value Creation Plan.\n3. Acknowledgements. You acknowledge that the Company would suffer irreparable harm if you fail to comply with Paragraph 1, and that the\nCompany would be entitled to any appropriate relief, including money damages, equitable relief and attorneys’ fees. You further acknowledge that\nenforcement of the covenants in Paragraph 1 is necessary to ensure the protection and continuity of the business and goodwill of the Company and\nthat, due to the proprietary nature of the business of the Company, the restrictions set forth in Paragraph 1 are reasonable as to geography, duration\nand scope.\n3\n4. Value Creation Plan Awards. For purposes of the Value Creation Plan and any awards thereunder (collectively, the “Value Creation\nAwards”), if you engage in conduct in breach of this Agreement prior to or at any time within the one (1) year period after any you receive a\npayment pursuant to any Value Creation Award, then such conduct shall be deemed to be a breach of the terms of such Value Creation Award,\njustifying cancellation or rescission of any such Value Creation Award, as applicable.\n5. Injunctive Relief. You agree that the Company would suffer irreparable harm if you were to breach, or threaten to breach, any provision of\nthis Agreement and that the Company would by reason of such breach, or threatened breach, be entitled to injunctive relief in a court of appropriate\njurisdiction, without the need to post any bond, and you further consent and stipulate to the entry of such injunctive relief in such a court prohibiting\nyou from breaching this Agreement. This Paragraph 5 shall not, however, diminish the right of the Company to claim and recover money damages in\naddition to injunctive relief.\n6. Severability. In the event that any one or more of the provisions of this Agreement shall be held to be invalid or unenforceable, the validity\nand enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Moreover, if any one or more of the provisions\ncontained in this Agreement shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting\nand reducing them so as to be enforceable to the maximum extent allowed by applicable law. Furthermore, a determination in any jurisdiction that\nthis Agreement, in whole or in part, is invalid or unenforceable shall not in any way affect or impair the validity or enforceability of this Agreement\nin any other jurisdiction.\n7. Waiver. The failure of Delphi to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the same\nor of the right of Delphi to enforce the same. Waiver by Delphi of any breach or default by you (or by any other employee or former employee of\nDelphi) of any term or provision of this Agreement (or any similar agreement between Delphi and you or any other employee or former employee of\nDelphi) shall not operate as a waiver of any other breach or default.\n8. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon Delphi, any successor organization which shall\nsucceed to Delphi by acquisition, merger, consolidation or operation of law, or by acquisition of assets of Delphi and any assigns. You may not\nassign your obligations under this Agreement.\n9. Disclosure of Existence of Covenants. You agree that while employed by Delphi and for twenty-four (24) months thereafter, you will\ncommunicate the contents of this Agreement to any person, firm, association, partnership, corporation or other entity which you intend to be\nemployed by, associated with or represent.\n10. Notice to Delphi of Prospective Position. You agree that you will promptly notify the Vice President and General Counsel and the Vice\nPresident of Human Resources of Delphi if, at any time during your employment or within twenty four (24) months following the termination of\nyour employment with Delphi, you accept a position to be employed by, associated with or represent any person, firm, association, partnership,\ncorporation or other entity. You further agree that you will provide Delphi with such information as Delphi may request about your new position to\nallow Delphi to determine whether such position and duties would likely lead to a violation of this Agreement (except that you need not provide any\ninformation that would constitute confidential or trade secret information).\n4\n11. No Oral Modification. This Agreement may not be changed orally, but may be changed only in a writing signed by the Employee and a\nduly authorized representative of Delphi.\n12. Entire Agreement. Although this Agreement sets forth the entire understanding between you and Delphi concerning its subject matter, this\nAgreement does not impair, diminish, restrict or waive any other restrictive covenant, nondisclosure obligation or confidentiality obligation you may\nhave to Delphi under any other agreement, policy, plan or program of Delphi. You and Delphi represent that, in executing this Agreement, the\nEmployee and Delphi have not relied upon any representations or statements made, other than those set forth herein, with regard to the subject\nmatter, basis or effect of this Agreement.\n13. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of\nDelaware, without regard to its conflicts of law principles. The parties hereby irrevocably consent and submit to the jurisdiction of the federal and\nstate courts located within the state of Michigan in any matter arising out of or in connection with, this Agreement.\n14. Rules of Professional Conduct. Nothing in this Agreement shall be deemed to modify, limit or waive Participant’s professional duties and\nresponsibilities under the Michigan Rules of Professional Conduct, arising from Participant’s service as a lawyer for the Company, its subsidiaries\nand affiliates, including, but not limited to, duties and responsibilities relating to maintaining client confidentiality, and limitations on the use of\nclient information, which Participant agrees apply to all non-public information that is disclosed to Participant in the course of participant’s\nemployment by the Company as a lawyer. Further, nothing in this Agreement shall construed to serve as a restriction on the right of the Participant to\npractice law after termination of his or her employment as set forth in such Rules of Professional Conduct, including by accepting employment as a\nlawyer at a competing company.\nI,\n, have executed this Confidentiality and Noninterference Agreement on the respective date set forth below:\nDate:\n(Signature)\n(Name)\n5	EX-10.10 10 d191007dex1010.htm FORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nIn recognition of the critical role that you play as an executive with Delphi Automotive LLP and/or one of its direct or indirect subsidiaries or\naffiliates (collectively, “Delphi” or the “Company”), and as consideration for any and all awards to be granted to you under the Delphi Automotive\nLLP 2010 Management Value Creation Plan (“Value Creation Plan”) and/or for other good and valuable consideration, you (“Employee” or “you”)\nagree to the terms and conditions of this Confidentiality and Noninterference Agreement (this “Agreement”) as follows:\n1. Covenants.\n(a) You acknowledge and agree that: (i) as an executive, you have been and will be exposed to some of the most sensitive and\nconfidential information possessed by or relating to Delphi, including strategic plans, marketing plans, information regarding long-term business\nopportunities and information regarding the development status of specific Company products, as well as extensive assessments of the competitive\nlandscape of the industries in which the Company competes; and (ii) this information represents the product of the Company’s substantial investment\nin research and innovation, is critical to the Company’s competitive success, is disclosed to the Company’s executives only on a strictly confidential\nbasis, and is not made accessible to the public or to the Company’s competitors.\n(b) You further acknowledge and agree that: (i) the business in which the Company is engaged is intensely competitive and that your\nposition and employment by Delphi has required, and will continue to require, that you have access to, and knowledge of, valuable and sensitive\ninformation relating to Delphi and its business including, but not limited to, information relating to its products and product development, pricing,\nengineering and design specifications, trade secrets, customers, suppliers, unique and/or proprietary software and source code, and marketing plans\n(collectively, “Confidential Information™); (ii) the direct or indirect disclosure of such Confidential Information would place the Company at a\nserious competitive disadvantage and would do serious damage, financial and otherwise, to the business of the Company and may constitute\nmisappropriation and/or improper use of trade secrets in violation of applicable laws; (iii) you have been and will be given access to, and have been\nor will be able to develop relationships with, customers, suppliers and employees of the Company at the time and expense of the Company; and\n(iv) by your training, experience and expertise, your services to the Company are, and will continue to be, extraordinary, special and unique.\n(c) You acknowledge and agree that you will keep in strict confidence, and will not, directly or indirectly, at any time during or after your\nemployment with Delphi, disclose, furnish, disseminate, make available or use Confidential Information of the Company or its customers or\nsuppliers, without limitation as to when or how you may have acquired such information, other than in the proper performance of your duties to\nDelphi, unless and until such Confidential Information is or shall become general public knowledge through no fault of yours. You specifically\nacknowledge that all such information, whether written or oral, or in electronic format, or maintained in your mind or memory and whether compiled\nby the Company, and/or you, derives independent economic value from not being readily known to or ascertainable by\nproper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by the Company to\nmaintain the secrecy of such information, that such information is the sole property of the Company and that any retention and use of such\ninformation by you during or after your employment with Delphi (except in the course of performing your duties and obligations as an executive)\nshall constitute a misappropriation of the Company’s trade secrets. In the event that you are required by law to disclose any Confidential\nInformation, you agree to give Delphi prompt advance written notice thereof and to provide Delphi with reasonable assistance in obtaining an order\nto protect the Confidential Information from public disclosure.\n(d) You acknowledge and agree that: (i) the Business (as defined below) is intensely competitive and conducted by Delphi throughout\nthe world; and (ii) reasonable limits on your ability to engage in activities that are competitive with Delphi are warranted in order to, among other\nthings, reasonably protect the Confidential Information of Delphi and Delphi’s reputation, customer relationships, goodwill and overall status in the\nmarketplace for which Delphi has invested substantial time and resources. You acknowledge and agree that:\n(i) During your employment and for twelve (12) months after the termination of your employment by you or by Delphi for any\nreason, you will not directly or indirectly engage in Competition (as defined below) with Delphi; or\n(ii) During your employment and for twenty-four (24) months after the termination of your employment by you or by Delphi for\nany reason, you will not directly or indirectly:\n(1) Solicit for your benefit or the benefit of any other person or entity, business of the same or of a similar nature to the\nBusiness (as defined below) from any customer that is doing business with Delphi, provided that after termination of your employment,\nthis restriction shall not apply to any entity that was not a customer of Delphi during the six (6) month period immediately preceding the\ntermination of your employment;\n(2) Solicit for your benefit or the benefit of any other person or entity from any known potential customer of Delphi, business\nof the same or of a similar nature to the Business that has been the subject of a known written or oral bid, offer or proposal by Delphi, or\nof substantial preparation with a view to making such a bid, proposal or offer, provided that after termination of your employment, this\nrestriction shall only apply to a potential customer if the bid, proposal or offer, or substantial preparation for making a bid, proposal or\noffer occurred during the six (6) month period immediately preceding the termination of your employment; or\n(3) Otherwise interfere with the Business of Delphi, including, but not limited to, with respect to any relationship or\nagreement between Delphi and any supplier to Delphi during the period of your employment, provided that after termination of your\nemployment, this restriction shall only apply to relationships or agreements in effect during the six (6) month period immediately\npreceding the termination of your employment; or\n(4) Solicit for your benefit or the benefit of any other person or entity, the employment or services of, or hire or engage, any\nindividual who was known to be employed or engaged by Delphi during the period of your employment, provided that after the\ntermination of your employment, this restriction shall only apply to individuals who were so employed or engaged during the six\n(6) month period immediately preceding the termination of your employment, and provided further, that this restriction will not prohibit\nsolicitation or hiring of any individual whose employment was involuntarily terminated by Delphi, provided at the time of such\nsolicitation or hiring you are not engaged in Competition with Delphi and no solicitation of such individual occurred while he or she was\nemployed by Delphi.\n2. Definitions.\n(a) For purposes of this Agreement, “Competition” by you shall mean your engaging in, or otherwise directly or indirectly being\nemployed by or acting as a consultant or lender to, or being a director, officer, employee, principal, agent, stockholder, member, owner or partner of,\nor permitting your name to be used in connection with the activities of any other business or organization anywhere in the world that competes,\ndirectly or indirectly, with Delphi in the Business; provided, however, it shall not be a violation of this Agreement for you to become the registered\nor beneficial owner of up to five percent (5%) of any class of stock of any entity in Competition with Delphi that is publicly traded on a recognized\ndomestic or foreign securities exchange, provided that you do not otherwise participate in the business of such corporation.\n(b) For purposes of this Agreement, “Business” means the creation, development, manufacture, sale, promotion and distribution of\nvehicle electronics, transportation components, integrated systems and modules, electronic technology and other products and services which Delphi\nengages in, or is preparing to become engaged in, at the time of your termination.\n(c) For purposes of this Agreement, the term “Cause” shall have the meaning ascribed to such term in the Value Creation Plan.\n \n3. Acknowledgements. You acknowledge that the Company would suffer irreparable harm if you fail to comply with Paragraph 1, and that the\nCompany would be entitled to any appropriate relief, including money damages, equitable relief and attorneys’ fees. You further acknowledge that\nenforcement of the covenants in Paragraph 1 is necessary to ensure the protection and continuity of the business and goodwill of the Company and\nthat, due to the proprietary nature of the business of the Company, the restrictions set forth in Paragraph 1 are reasonable as to geography, duration\nand scope.\n4. Value Creation Plan Awards. For purposes of the Value Creation Plan and any awards thereunder (collectively, the “Value Creation\nAwards”), if you engage in conduct in breach of this Agreement prior to or at any time within the one (1) year period after any you receive a\npayment pursuant to any Value Creation Award, then such conduct shall be deemed to be a breach of the terms of such Value Creation Award,\njustifying cancellation or rescission of any such Value Creation Award, as applicable.\n5. Injunctive Relief. You agree that the Company would suffer irreparable harm if you were to breach, or threaten to breach, any provision of\nthis Agreement and that the Company would by reason of such breach, or threatened breach, be entitled to injunctive relief in a court of appropriate\njurisdiction, without the need to post any bond, and you further consent and stipulate to the entry of such injunctive relief in such a court prohibiting\nyou from breaching this Agreement. This Paragraph 5 shall not, however, diminish the right of the Company to claim and recover money damages in\naddition to injunctive relief.\n6. Severability. In the event that any one or more of the provisions of this Agreement shall be held to be invalid or unenforceable, the validity\nand enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Moreover, if any one or more of the provisions\ncontained in this Agreement shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting\nand reducing them so as to be enforceable to the maximum extent allowed by applicable law. Furthermore, a determination in any jurisdiction that\nthis Agreement, in whole or in part, is invalid or unenforceable shall not in any way affect or impair the validity or enforceability of this Agreement\nin any other jurisdiction.\n7. Waiver. The failure of Delphi to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the same\nor of the right of Delphi to enforce the same. Waiver by Delphi of any breach or default by you (or by any other employee or former employee of\nDelphi) of any term or provision of this Agreement (or any similar agreement between Delphi and you or any other employee or former employee of\nDelphi) shall not operate as a waiver of any other breach or default.\n8. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon Delphi, any successor organization which shall\nsucceed to Delphi by acquisition, merger, consolidation or operation of law, or by acquisition of assets of Delphi and any assigns. You may not\nassign your obligations under this Agreement.\n9. Disclosure of Existence of Covenants. You agree that while employed by Delphi and for twenty-four (24) months thereafter, you will\ncommunicate the contents of this Agreement to any person, firm, association, partnership, corporation or other entity which you intend to be\nemployed by, associated with or represent.\n10. Notice to Delphi of Prospective Position. You agree that you will promptly notify the Vice President and General Counsel and the Vice\nPresident of Human Resources of Delphi if, at any time during your employment or within twenty four (24) months following the termination of\nyour employment with Delphi, you accept a position to be employed by, associated with or represent any person, firm, association, partnership,\ncorporation or other entity. You further agree that you will provide Delphi with such information as Delphi may request about your new position to\nallow Delphi to determine whether such position and duties would likely lead to a violation of this Agreement (except that you need not provide any\ninformation that would constitute confidential or trade secret information).\n4\n11. No Oral Modification. This Agreement may not be changed orally, but may be changed only in a writing signed by the Employee and a\nduly authorized representative of Delphi.\n12. Entire Agreement. Although this Agreement sets forth the entire understanding between you and Delphi concerning its subject matter, this\nAgreement does not impair, diminish, restrict or waive any other restrictive covenant, nondisclosure obligation or confidentiality obligation you may\nhave to Delphi under any other agreement, policy, plan or program of Delphi. You and Delphi represent that, in executing this Agreement, the\nEmployee and Delphi have not relied upon any representations or statements made, other than those set forth herein, with regard to the subject\nmatter, basis or effect of this Agreement.\n13. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of\nDelaware, without regard to its conflicts of law principles. The parties hereby irrevocably consent and submit to the jurisdiction of the federal and\nstate courts located within the state of Michigan in any matter arising out of or in connection with, this Agreement.\n14. Rules of Professional Conduct. Nothing in this Agreement shall be deemed to modify, limit or waive Participant’s professional duties and\nresponsibilities under the Michigan Rules of Professional Conduct, arising from Participant’s service as a lawyer for the Company, its subsidiaries\nand affiliates, including, but not limited to, duties and responsibilities relating to maintaining client confidentiality, and limitations on the use of\nclient information, which Participant agrees apply to all non-public information that is disclosed to Participant in the course of participant’s\nemployment by the Company as a lawyer. Further, nothing in this Agreement shall construed to serve as a restriction on the right of the Participant to\npractice law after termination of his or her employment as set forth in such Rules of Professional Conduct, including by accepting employment as a\nlawyer at a competing company.\nI , have executed this Confidentiality and Noninterference Agreement on the respective date set forth below:\nDate:\n(Signature)\n(Name)	EX-10.10 10 d191007dex1010.htm FORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nIn recognition of the critical role that you play as an executive with Delphi Automotive LLP and/or one of its direct or indirect subsidiaries or\naffiliates (collectively, "Delphi" or the "Company."), and as consideration for any and all awards to be granted to you under the Delphi Automotive\nLLP 2010 Management Value Creation Plan ("Value Creation Plan") and/or for other good and valuable consideration, you ("Employee" or "you")\nagree to the terms and conditions of this Confidentiality and Noninterference Agreement (this "Agreement") as follows:\n1. Covenants.\n(a) You acknowledge and agree that: (i) as an executive, you have been and will be exposed to some of the most sensitive and\nconfidential information possessed by or relating to Delphi, including strategic plans, marketing plans, information regarding long-term business\nopportunities and information regarding the development status of specific Company products, as well as extensive assessments of the competitive\nlandscape of the industries in which the Company competes; and (ii) this information represents the product of the Company's substantial investment\nin research and innovation, is critical to the Company's competitive success, is disclosed to the Company's executives only on a strictly confidential\nbasis, and is not made accessible to the public or to the Company's competitors.\n(b) You further acknowledge and agree that: (i) the business in which the Company is engaged is intensely competitive and that your\nposition and employment by Delphi has required, and will continue to require, that you have access to, and knowledge of, valuable and sensitive\ninformation relating to Delphi and its business including, but not limited to, information relating to its products and product development, pricing,\nengineering and design specifications, trade secrets, customers, suppliers, unique and/or proprietary software and source code, and marketing plans\n(collectively, "Confidential Information"); (ii) the direct or indirect disclosure of such Confidential Information would place the Company at a\nserious competitive disadvantage and would do serious damage, financial and otherwise, to the business of the Company and may constitute\nmisappropriation and/or improper use of trade secrets in violation of applicable laws; (iii) you have been and will be given access to, and have been\nor\nwill be able to develop relationships with, customers, suppliers and employees of the Company at the time and expense of the Company; and\n(iv) by your training, experience and expertise, your services to the Company are, and will continue to be, extraordinary, special and unique\n(c) You acknowledge and agree that you will keep in strict confidence, and will not, directly or indirectly, at any time during or after your\nemployment with Delphi, disclose, furnish, disseminate, make available or use Confidential Information of the Company or its customers or\nsuppliers, without limitation as to when or how you may have acquired such information, other than in the proper performance of your duties\nto\nDelphi, unless and until such Confidentia Information is or shall become general public knowledge through no fault of yours. You specifically\nacknowledge that all such information, whether written or oral, or in electronic format, or maintained in your mind or memory and whether compiled\nby the Company, and/or you, derives independent economic value from not being readily known to or ascertainable by\nproper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by the Company to\nmaintain the secrecy of such information, that such information is the sole property of the Company and that any retention and use of such\ninformation by you during or after your employment with Delphi (except in the course of performing your duties and obligations as an executive)\nshall constitute a misappropriation of the Company's trade secrets. In the event that you are required by law to disclose any Confidential\nInformation, you agree to give Delphi prompt advance written notice thereof and to provide Delphi with reasonable assistance in obtaining an order\nto protect the Confidential Information from public disclosure.\n(d) You acknowledge and agree that: (i) the Business (as defined below) is intensely competitive and conducted by Delphi throughout\nthe world; and (ii) reasonable limits on your ability to engage in activities that are competitive with Delphi are warranted in order to, among other\nthings, reasonably protect the Confidential Information of Delphi and Delphi's reputation, customer relationships, goodwill and overall status in the\nmarketplace for which Delphi has invested substantial time and resources. You acknowledge and agree that:\n(i) During your employment and for twelve (12) months after the termination of your employment by you or by Delphi for any\nreason, you will not directly or indirectly engage in Competition (as defined below) with Delphi; or\n(ii) During your employment and for twenty-four (24) months after the termination of your employment by you or by Delphi for\nany reason, you will not directly or indirectly:\n(1) Solicit for your benefit or the benefit of any other person or entity, business of the same or of a similar nature to the\nBusiness (as defined below) from any customer that is doing business with Delphi, provided that after termination of your employment,\nthis restriction shall not apply to any entity that was not a customer of Delphi during the six (6) month period immediately preceding the\ntermination of your employment;\n(2) Solicit for your benefit or the benefit of any other person or entity from any known potential customer of Delphi, business\nof the same or of a similar nature to the Business that has been the subject of a known written or oral bid, offer or proposal by Delphi, or\nof substantial preparation with a view to making such a bid, proposal or offer, provided that after termination of your employment, this\nrestriction shall only apply to a potential customer if the bid, proposal or offer, or substantial preparation for making a bid, proposal\nor\noffer occurred during the six (6) month period immediately preceding the termination of your employment; or\n(3) Otherwise interfere with the Business of Delphi, including, but not limited to, with respect to any relationship or\nagreement between Delphi and any supplier to Delphi during the period of your employment, provided that after termination of your\nemployment, this restriction shall only apply to relationships or agreements in effect during the six (6) month period immediately\npreceding the termination of your employment; or\n2\n(4) Solicit for your benefit or the benefit of any other person or entity, the employment or services of, or hire or engage, any\nindividual who was known to be employed or engaged by Delphi during the period of your employment, provided that after the\ntermination of your employment, this restriction shall only apply to individuals who were so employed or engaged during the six\n(6) month period immediately preceding the termination of your employment, and provided further, that this restriction will not prohibit\nsolicitation or hiring of any individual whose employment was involuntarily terminated by Delphi, provided at the time of such\nsolicitation or hiring you are not engaged in Competition with Delphi and no solicitation of such individual occurred while he or she was\nemployed by Delphi.\n2. Definitions.\n(a) For purposes of this Agreement, "Competition" by you shall mean your engaging in, or otherwise directly or indirectly being\nemployed by or acting as a consultant or lender to, or being a director, officer, employee, principal, agent, stockholder, member, owner or partner of,\nor permitting your name to be used in connection with the activities of any other business or organization anywhere in the world that competes,\ndirectly or indirectly, with Delphi in the Business; provided, however, it shall not be a violation of this Agreement for you to become the registered\nor beneficial owner of up to five percent (5%) of any class of stock of any entity in Competition with Delphi that is publicly traded on a recognized\ndomestic or foreign securities exchange, provided that you do not otherwise participate in the business of such corporation.\n(b) For purposes of this Agreement, "Business" means the creation, development, manufacture, sale, promotion and distribution of\nvehicle electronics, transportation components, integrated systems and modules, electronic technology and other products and services which Delphi\nengages in, or is preparing to become engaged in, at the time of your termination.\n(c)\nFor purposes of this Agreement, the term "Cause" shall have the meaning ascribed to such term in the Value Creation Plan.\n3. Acknowledgements. You acknowledge that the Company would suffer irreparable harm if you fail to comply with Paragraph 1, and that the\nCompany would be entitled to any appropriate relief, including money damages, equitable relief and attorneys' fees. You further acknowledge that\nenforcement of the covenants in Paragraph 1 is necessary to ensure the protection and continuity of the business and goodwill of the Company and\nthat, due to the proprietary nature of the business of the Company, the restrictions set forth in Paragraph 1 are reasonable as to geography, duration\nand scope.\n3\n4. Value Creation Plan Awards. For purposes of the Value Creation Plan and any awards thereunder (collectively, the "Value Creation\nAwards"), if you engage in conduct in breach of this Agreement prior to or at any time within the one (1) year period after any you receive a\npayment pursuant to any Value Creation Award, then such conduct shall be deemed to be a breach of the terms of such Value Creation Award,\njustifying cancellation or rescission of any such Value Creation Award, as applicable.\n5.\nInjunctive Relief. You agree that the Company would suffer irreparable harm if you were to breach, or threaten to breach,\nany\nprovision\nof\nthis Agreement and that the Company would by reason of such breach, or threatened breach, be entitled to injunctive relief in a court of appropriate\njurisdiction, without the need to post any bond, and you further consent and stipulate to the entry of such injunctive relief in such a court prohibiting\nyou from breaching this Agreement. This Paragraph 5 shall not, however, diminish the right of the Company to claim and recover money damages in\naddition to injunctive relief.\n6. Severability. In the event that any one or more of the provisions of this Agreement shall be held to be invalid or unenforceable, the validity\nand enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Moreover, if any one or more of the provisions\ncontained in this Agreement shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting\nand reducing them so as to be enforceable to the maximum extent allowed by applicable law. Furthermore, a determination in any jurisdiction that\nthis Agreement, in whole or in part, is invalid or unenforceable shall not in any way affect or impair the validity or enforceability of this Agreement\nin any other jurisdiction.\n7. Waiver. The failure of Delphi to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the same\nor of the right of Delphi to enforce the same. Waiver by Delphi of any breach or default by you (or by any other employee or former employee of\nDelphi) of any term or provision of this Agreement (or any similar agreement between Delphi and you or any other employee or former employee\nof\nDelphi) shall not operate as a waiver of any other breach or default.\n8. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon Delphi, any successor organization which shall\nsucceed to Delphi by acquisition, merger, consolidation or operation of law, or by acquisition of assets of Delphi and any assigns. You may not\nassign your obligations under this Agreement.\n9. Disclosure of Existence of Covenants. You agree that while employed by Delphi and for twenty-four (24) months thereafter, you will\ncommunicate the contents of this Agreement to any person, firm, association, partnership, corporation or other entity which you intend to be\nemployed by, associated with or represent.\n10. Notice to Delphi of Prospective Position. You agree that you will promptly notify the Vice President and General Counsel and the Vice\nPresident of Human Resources of Delphi if, at any time during your employment or within twenty four (24) months following the termination of\nyour employment with Delphi, you accept a position to be employed by, associated with or represent any person, firm, association, partnership,\ncorporation or other entity. You further agree that you will provide Delphi with such information as Delphi may request about your new position to\nallow Delphi to determine whether such position and duties would likely lead to a violation of this Agreement (except that you need not provide any\ninformation that would constitute confidential or trade secret information).\n4\n11. No Oral Modification. This Agreement may not be changed orally, but may be changed only in a writing signed by the Employee and a\nduly authorized representative of Delphi.\n12. Entire Agreement Although this Agreement sets forth the entire understanding between you and Delphi concerning its subject matter, this\nAgreement does not impair, diminish, restrict or waive any other restrictive covenant, nondisclosure obligation or confidentiality obligation you may\nhave to Delphi under any other agreement, policy, plan or program of Delphi. You and Delphi represent that, in executing this Agreement, the\nEmployee and Delphi have not relied upon any representations or statements made, other than those set forth herein, with regard to the subject\nmatter, basis or effect of this Agreement.\n13. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of\nDelaware, without regard to its conflicts of law principles. The parties hereby irrevocably consent and submit to the jurisdiction of the federal and\nstate courts located within the state of Michigan in any matter arising out of or in connection with, this Agreement.\n14. Rules of Professional Conduct. Nothing in this Agreement shall be deemed to modify, limit or waive Participant's professional duties and\nresponsibilities under the Michigan Rules of Professional Conduct, arising from Participant's service as a lawyer for the Company, its subsidiaries\nand affiliates, including, but not limited to, duties and responsibilities relating to maintaining client confidentiality, and limitations on the use of\nclient information, which Participant agrees apply to all non-public information that is disclosed to Participant in the course of participant's\nemployment by the Company as a lawyer. Further, nothing in this Agreement shall construed to serve as a restriction on the right of the Participant to\npractice law after termination of his or her employment as set forth in such Rules of Professional Conduct, including by accepting employment as\na\nlawyer at a competing company.\nI,\nhave executed this Confidentiality and Noninterference Agreement on the respective date set forth below:\nDate:\n(Signature)\n(Name)\n5	EX-10.10 10 d191007dex1010.htm FORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nIn recognition of the critical role that you play as an executive with Delphi Automotive LLP and/or one of its direct or indirect subsidiaries or\naffiliates (collectively, “Delphi” or the “Company”), and as consideration for any and all awards to be granted to you under the Delphi Automotive\nLLP 2010 Management Value Creation Plan (“Value Creation Plan”) and/or for other good and valuable consideration, you (“Employee” or “you”)\nagree to the terms and conditions of this Confidentiality and Noninterference Agreement (this “Agreement”) as follows:\n1. Covenants.\n(a) You acknowledge and agree that: (i) as an executive, you have been and will be exposed to some of the most sensitive and\nconfidential information possessed by or relating to Delphi, including strategic plans, marketing plans, information regarding long-term business\nopportunities and information regarding the development status of specific Company products, as well as extensive assessments of the competitive\nlandscape of the industries in which the Company competes; and (ii) this information represents the product of the Company’s substantial investment\nin research and innovation, is critical to the Company’s competitive success, is disclosed to the Company’s executives only on a strictly confidential\nbasis, and is not made accessible to the public or to the Company’s competitors.\n(b) You further acknowledge and agree that: (i) the business in which the Company is engaged is intensely competitive and that your\nposition and employment by Delphi has required, and will continue to require, that you have access to, and knowledge of, valuable and sensitive\ninformation relating to Delphi and its business including, but not limited to, information relating to its products and product development, pricing,\nengineering and design specifications, trade secrets, customers, suppliers, unique and/or proprietary software and source code, and marketing plans\n(collectively, “Confidential Information”); (ii) the direct or indirect disclosure of such Confidential Information would place the Company at a\nserious competitive disadvantage and would do serious damage, financial and otherwise, to the business of the Company and may constitute\nmisappropriation and/or improper use of trade secrets in violation of applicable laws; (iii) you have been and will be given access to, and have been\nor will be able to develop relationships with, customers, suppliers and employees of the Company at the time and expense of the Company; and\n(iv) by your training, experience and expertise, your services to the Company are, and will continue to be, extraordinary, special and unique.\n(c) You acknowledge and agree that you will keep in strict confidence, and will not, directly or indirectly, at any time during or after your\nemployment with Delphi, disclose, furnish, disseminate, make available or use Confidential Information of the Company or its customers or\nsuppliers, without limitation as to when or how you may have acquired such information, other than in the proper performance of your duties to\nDelphi, unless and until such Confidential Information is or shall become general public knowledge through no fault of yours. You specifically\nacknowledge that all such information, whether written or oral, or in electronic format, or maintained in your mind or memory and whether compiled\nby the Company, and/or you, derives independent economic value from not being readily known to or ascertainable by\nproper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by the Company to\nmaintain the secrecy of such information, that such information is the sole property of the Company and that any retention and use of such\ninformation by you during or after your employment with Delphi (except in the course of performing your duties and obligations as an executive)\nshall constitute a misappropriation of the Company’s trade secrets. In the event that you are required by law to disclose any Confidential\nInformation, you agree to give Delphi prompt advance written notice thereof and to provide Delphi with reasonable assistance in obtaining an order\nto protect the Confidential Information from public disclosure.\n(d) You acknowledge and agree that: (i) the Business (as defined below) is intensely competitive and conducted by Delphi throughout\nthe world; and (ii) reasonable limits on your ability to engage in activities that are competitive with Delphi are warranted in order to, among other\nthings, reasonably protect the Confidential Information of Delphi and Delphi’s reputation, customer relationships, goodwill and overall status in the\nmarketplace for which Delphi has invested substantial time and resources. You acknowledge and agree that:\n(i) During your employment and for twelve (12) months after the termination of your employment by you or by Delphi for any\nreason, you will not directly or indirectly engage in Competition (as defined below) with Delphi; or\n(ii) During your employment and for twenty-four (24) months after the termination of your employment by you or by Delphi for\nany reason, you will not directly or indirectly:\n(1) Solicit for your benefit or the benefit of any other person or entity, business of the same or of a similar nature to the\nBusiness (as defined below) from any customer that is doing business with Delphi, provided that after termination of your employment,\nthis restriction shall not apply to any entity that was not a customer of Delphi during the six (6) month period immediately preceding the\ntermination of your employment;\n(2) Solicit for your benefit or the benefit of any other person or entity from any known potential customer of Delphi, business\nof the same or of a similar nature to the Business that has been the subject of a known written or oral bid, offer or proposal by Delphi, or\nof substantial preparation with a view to making such a bid, proposal or offer, provided that after termination of your employment, this\nrestriction shall only apply to a potential customer if the bid, proposal or offer, or substantial preparation for making a bid, proposal or\noffer occurred during the six (6) month period immediately preceding the termination of your employment; or\n(3) Otherwise interfere with the Business of Delphi, including, but not limited to, with respect to any relationship or\nagreement between Delphi and any supplier to Delphi during the period of your employment, provided that after termination of your\nemployment, this restriction shall only apply to relationships or agreements in effect during the six (6) month period immediately\npreceding the termination of your employment; or\n2\n(4) Solicit for your benefit or the benefit of any other person or entity, the employment or services of, or hire or engage, any\nindividual who was known to be employed or engaged by Delphi during the period of your employment, provided that after the\ntermination of your employment, this restriction shall only apply to individuals who were so employed or engaged during the six\n(6) month period immediately preceding the termination of your employment, and provided further, that this restriction will not prohibit\nsolicitation or hiring of any individual whose employment was involuntarily terminated by Delphi, provided at the time of such\nsolicitation or hiring you are not engaged in Competition with Delphi and no solicitation of such individual occurred while he or she was\nemployed by Delphi.\n2. Definitions.\n(a) For purposes of this Agreement, “Competition” by you shall mean your engaging in, or otherwise directly or indirectly being\nemployed by or acting as a consultant or lender to, or being a director, officer, employee, principal, agent, stockholder, member, owner or partner of,\nor permitting your name to be used in connection with the activities of any other business or organization anywhere in the world that competes,\ndirectly or indirectly, with Delphi in the Business; provided, however, it shall not be a violation of this Agreement for you to become the registered\nor beneficial owner of up to five percent (5%) of any class of stock of any entity in Competition with Delphi that is publicly traded on a recognized\ndomestic or foreign securities exchange, provided that you do not otherwise participate in the business of such corporation.\n(b) For purposes of this Agreement, “Business” means the creation, development, manufacture, sale, promotion and distribution of\nvehicle electronics, transportation components, integrated systems and modules, electronic technology and other products and services which Delphi\nengages in, or is preparing to become engaged in, at the time of your termination.\n(c) For purposes of this Agreement, the term “Cause” shall have the meaning ascribed to such term in the Value Creation Plan.\n3. Acknowledgements. You acknowledge that the Company would suffer irreparable harm if you fail to comply with Paragraph 1, and that the\nCompany would be entitled to any appropriate relief, including money damages, equitable relief and attorneys’ fees. You further acknowledge that\nenforcement of the covenants in Paragraph 1 is necessary to ensure the protection and continuity of the business and goodwill of the Company and\nthat, due to the proprietary nature of the business of the Company, the restrictions set forth in Paragraph 1 are reasonable as to geography, duration\nand scope.\n3\n4. Value Creation Plan Awards. For purposes of the Value Creation Plan and any awards thereunder (collectively, the “Value Creation\nAwards”), if you engage in conduct in breach of this Agreement prior to or at any time within the one (1) year period after any you receive a\npayment pursuant to any Value Creation Award, then such conduct shall be deemed to be a breach of the terms of such Value Creation Award,\njustifying cancellation or rescission of any such Value Creation Award, as applicable.\n5. Injunctive Relief. You agree that the Company would suffer irreparable harm if you were to breach, or threaten to breach, any provision of\nthis Agreement and that the Company would by reason of such breach, or threatened breach, be entitled to injunctive relief in a court of appropriate\njurisdiction, without the need to post any bond, and you further consent and stipulate to the entry of such injunctive relief in such a court prohibiting\nyou from breaching this Agreement. This Paragraph 5 shall not, however, diminish the right of the Company to claim and recover money damages in\naddition to injunctive relief.\n6. Severability. In the event that any one or more of the provisions of this Agreement shall be held to be invalid or unenforceable, the validity\nand enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Moreover, if any one or more of the provisions\ncontained in this Agreement shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting\nand reducing them so as to be enforceable to the maximum extent allowed by applicable law. Furthermore, a determination in any jurisdiction that\nthis Agreement, in whole or in part, is invalid or unenforceable shall not in any way affect or impair the validity or enforceability of this Agreement\nin any other jurisdiction.\n7. Waiver. The failure of Delphi to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the same\nor of the right of Delphi to enforce the same. Waiver by Delphi of any breach or default by you (or by any other employee or former employee of\nDelphi) of any term or provision of this Agreement (or any similar agreement between Delphi and you or any other employee or former employee of\nDelphi) shall not operate as a waiver of any other breach or default.\n8. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon Delphi, any successor organization which shall\nsucceed to Delphi by acquisition, merger, consolidation or operation of law, or by acquisition of assets of Delphi and any assigns. You may not\nassign your obligations under this Agreement.\n9. Disclosure of Existence of Covenants. You agree that while employed by Delphi and for twenty-four (24) months thereafter, you will\ncommunicate the contents of this Agreement to any person, firm, association, partnership, corporation or other entity which you intend to be\nemployed by, associated with or represent.\n10. Notice to Delphi of Prospective Position. You agree that you will promptly notify the Vice President and General Counsel and the Vice\nPresident of Human Resources of Delphi if, at any time during your employment or within twenty four (24) months following the termination of\nyour employment with Delphi, you accept a position to be employed by, associated with or represent any person, firm, association, partnership,\ncorporation or other entity. You further agree that you will provide Delphi with such information as Delphi may request about your new position to\nallow Delphi to determine whether such position and duties would likely lead to a violation of this Agreement (except that you need not provide any\ninformation that would constitute confidential or trade secret information).\n4\n11. No Oral Modification. This Agreement may not be changed orally, but may be changed only in a writing signed by the Employee and a\nduly authorized representative of Delphi.\n12. Entire Agreement. Although this Agreement sets forth the entire understanding between you and Delphi concerning its subject matter, this\nAgreement does not impair, diminish, restrict or waive any other restrictive covenant, nondisclosure obligation or confidentiality obligation you may\nhave to Delphi under any other agreement, policy, plan or program of Delphi. You and Delphi represent that, in executing this Agreement, the\nEmployee and Delphi have not relied upon any representations or statements made, other than those set forth herein, with regard to the subject\nmatter, basis or effect of this Agreement.\n13. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of\nDelaware, without regard to its conflicts of law principles. The parties hereby irrevocably consent and submit to the jurisdiction of the federal and\nstate courts located within the state of Michigan in any matter arising out of or in connection with, this Agreement.\n14. Rules of Professional Conduct. Nothing in this Agreement shall be deemed to modify, limit or waive Participant’s professional duties and\nresponsibilities under the Michigan Rules of Professional Conduct, arising from Participant’s service as a lawyer for the Company, its subsidiaries\nand affiliates, including, but not limited to, duties and responsibilities relating to maintaining client confidentiality, and limitations on the use of\nclient information, which Participant agrees apply to all non-public information that is disclosed to Participant in the course of participant’s\nemployment by the Company as a lawyer. Further, nothing in this Agreement shall construed to serve as a restriction on the right of the Participant to\npractice law after termination of his or her employment as set forth in such Rules of Professional Conduct, including by accepting employment as a\nlawyer at a competing company.\nI,\n, have executed this Confidentiality and Noninterference Agreement on the respective date set forth below:\nDate:\n(Signature)\n(Name)\n5
8a7fedc5ffa5c2ffa424753229b52943.pdf	effective_date jurisdiction party term	EX-10.13 17 d638429dex1013.htm EX-10.13\nExhibit 10.13\nNON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT (“Agreement”) is\nentered into on the\nday of October, 2010, by and between AGS LLC a Delaware Corporation (“Company”), and Curt Mayer\n(“Employee”).\nEmployee and Company have entered into a separate employment agreement of the same date and that agreement contains language in\ncertain paragraphs that may be different than that contained in this document. In the event of any controversy in interpretation of either\nagreement, the language in the employment agreement shall supersede any language in this agreement.\nIn consideration of the Company employing Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC , AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee’s\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee’s own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as “Confidential Information”), without the prior written consent of Company. In the event Employee is required by law or court\norder to disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy\nof any court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation.\n(1) Employees. During the course of employment and for a two (2) year period thereafter, Employee shall not, for\nhimself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or otherwise,\ndirectly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or encouraging such\nemployee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing Employee, a employer\naffiliated with Company or any competitor of Company or any affiliate thereof.\n(2) Client and Customers. Employee agrees that for a period of one (1) year after the termination of employment with\nthe Company for any reason whatsoever, Employee shall not, on behalf of Employee or on behalf of any other individual, association or entity,\ncall on any of the clients or customers of the Company or any affiliate of the Company for the purpose of soliciting or inducing any of such\ncustomers to acquire (or providing to any of such customers) any product or service provided by the Company or an affiliate of the Company, nor\nwill Employee in any way, directly or indirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take\naway or to divert or direct their business to Employee or any other person or entity by or with which Employee is employed, associated, affiliated\nor otherwise related.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly, engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. If you are terminated\nwithout “Cause” as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six (6) months\nunless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of termination in\nexchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the\n-2-\nprotection of Company and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee\nagrees that, in addition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be\nentitled to seek and obtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of\nrestraining Employee from any actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term of\nemployment.\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee’s obligations to the Company under this Agreement.\n4. Proprietary Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery of Documents and Data Upon Termination. In the event of termination of Employee’s employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany’s trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in fines and an award against Employee for damages as well as the Company’s attorneys’ fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Company’s available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this\n-3-\nAgreement shall be a waiver of any preceding or succeeding breach of the same, or any other promise or condition. No waiver by the Company\nof any right shall be construed as a waiver of any other right. The Company shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n8. Attorneys’ Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’\nfees, costs, and expenses.\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a\nmaterial condition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties.\nThis Agreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the\nbenefit of the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern\nthe validity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one\nor more of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in\nwhole or in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any\ntime, at the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the\nforegoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or\nlimit the scope, intent or interpretation of this Agreement.\n-4-\nAGS LLC\nBy: /s/ Robert Miodunski\n“Company”\n/s/ Curt Mayer\n(Signature of Employee)\nCurt Mayer\n“Employee”\n-5-	EX-10.13 17 d638429dex1013.htm EX-10.13\nExhibit 10.13\nNON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT (“Agreement”) is\nentered into on the day of October, 2010, by and between AGS LLC a Delaware Corporation (“Company”), and Curt Mayer\n(“Employee”).\nEmployee and Company have entered into a separate employment agreement of the same date and that agreement contains language in\ncertain paragraphs that may be different than that contained in this document. In the event of any controversy in interpretation of either\nagreement, the language in the employment agreement shall supersede any language in this agreement.\nIn consideration of the Company employing Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC , AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee’s\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee’s own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as “Confidential Information”), without the prior written consent of Company. In the event Employee is required by law or court\norder to disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy\nof any court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation.\n(1) Employees. During the course of employment and for a two (2) year period thereafter, Employee shall not, for\nhimself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or otherwise,\ndirectly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or encouraging such\nemployee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing Employee, a employer\naffiliated with Company or any competitor of Company or any affiliate thereof.\n(2) Client and Customers. Employee agrees that for a period of one (1) year after the termination of employment with\nthe Company for any reason whatsoever, Employee shall not, on behalf of Employee or on behalf of any other individual, association or entity,\ncall on any of the clients or customers of the Company or any affiliate of the Company for the purpose of soliciting or inducing any of such\ncustomers to acquire (or providing to any of such customers) any product or service provided by the Company or an affiliate of the Company, nor\nwill Employee in any way, directly or indirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take\naway or to divert or direct their business to Employee or any other person or entity by or with which Employee is employed, associated, affiliated\nor otherwise related.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly, engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. If you are terminated\nwithout “Cause” as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six (6) months\nunless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of termination in\nexchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the\n-\nprotection of Company and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee\nagrees that, in addition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be\nentitled to seek and obtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of\nrestraining Employee from any actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term of\nemployment.\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee’s obligations to the Company under this Agreement.\n4. Proprietary Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery_of Documents and Data Upon Termination. In the event of termination of Employee’s employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany’s trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in fines and an award against Employee for damages as well as the Company’s attorneys’ fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Companys available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this\n_3-\nAgreement shall be a waiver of any preceding or succeeding breach of the same, or any other promise or condition. No waiver by the Company\nof any right shall be construed as a waiver of any other right. The Company shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n8. Attorneys’ Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’\nfees, costs, and expenses.\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a\nmaterial condition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties.\nThis Agreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the\nbenefit of the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern\nthe validity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one\nor more of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in\nwhole or in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any\ntime, at the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the\nforegoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or\nlimit the scope, intent or interpretation of this Agreement.\n4-\nAGSLLC\nBy: /s/ Robert Miodunski “Company”\n/s/ Curt Mayer\n(Signature of Employee)\nCurt Mayer\n“Employee”	EX-10.13 17 d638429dex1013.htm EX-10.13\nExhibit 10.13\nNON-DISCLOSURE NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT ("Agreement") is\nentered into on the day of October, 2010, by and between AGS LLC a Delaware Corporation ("Company"), and Curt Mayer\n("Employee").\nEmployee and Company have entered into a separate employment agreement of the same date and that agreement contains language in\ncertain paragraphs that may be different than that contained in this document. In the event of any controversy in interpretation of either\nagreement, the language in the employment agreement shall supersede any language in this agreement.\nIn consideration of the Company employing Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee's\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee's own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as\na\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as "Confidential Information"), without the prior written consent of Company. In the event Employee is required by law or court\norder to disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy\nof any court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company\nan\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation.\n(1) Employees. During the course of employment and for a two (2) year period thereafter, Employee shall not, for\nhimself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or otherwise,\ndirectly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or encouraging such\nemployee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing Employee, a employer\naffiliated with Company or any competitor of Company or any affiliate thereof.\n(2) Client and Customers. Employee agrees that for a period of one (1) year after the termination of employment with\nthe Company for any reason whatsoever, Employee shall not, on behalf of Employee or on behalf of any other individual, association or entity,\ncall on any of the clients or customers of the Company or any affiliate of the Company for the purpose of soliciting or inducing any of such\ncustomers\nto\nacquire (or providing to any of such customers) any product or service provided by the Company or an affiliate of the Company, nor\nwill Employee in any way, directly or indirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take\naway or to divert or direct their business to Employee or any other person or entity by or with which Employee is employed, associated, affiliated\nor otherwise related.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly, engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. If you are terminated\nwithout "Cause" as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six (6) months\nunless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of termination in\nexchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the\n-2-\nprotection of Company and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee\nagrees that, in addition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be\nentitled to seek and obtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of\nrestraining Employee from any actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term\nof\nemployment.\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee's obligations to the Company under this Agreement.\n4. Proprietary. Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery. of Documents and Data Upon Termination. In the event of termination of Employee's employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her\npossession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany's trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in fines and an award against Employee for damages as well as the Company's attorneys' fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Company's available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent\nof\nany actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this\n-3-\nAgreement shall be a waiver of any preceding or succeeding breach of the same, or any other promise or condition. No waiver by the Company\nof any right shall be construed as a waiver of any other right. The Company shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n8. Attorneys' Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys'\nfees, costs, and expenses.\n9.\nMaterial Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are\na\nmaterial condition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties.\nThis Agreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the\nbenefit of the Company and its successors and assigns.\n11.\nGoverning Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern\nthe validity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one\nor more of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability.. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in\nwhole or in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any\ntime, at the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the\nforegoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or\nlimit the scope, intent or interpretation of this Agreement.\n-4-\nAGS LLC\nBy: /s/ Robert Miodunski\n"Company"\n/s/ Curt Mayer\n(Signature of Employee)\nCurt Mayer\n"Employee"\n-5-	EX-10.13 17 d638429dex1013.htm EX-10.13\nExhibit 10.13\nNON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT (“Agreement”) is\nentered into on the\nday of October, 2010, by and between AGS LLC a Delaware Corporation (“Company”), and Curt Mayer\n(“Employee”).\nEmployee and Company have entered into a separate employment agreement of the same date and that agreement contains language in\ncertain paragraphs that may be different than that contained in this document. In the event of any controversy in interpretation of either\nagreement, the language in the employment agreement shall supersede any language in this agreement.\nIn consideration of the Company employing Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC , AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee’s\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee’s own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as “Confidential Information”), without the prior written consent of Company. In the event Employee is required by law or court\norder to disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy\nof any court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation.\n(1) Employees. During the course of employment and for a two (2) year period thereafter, Employee shall not, for\nhimself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or otherwise,\ndirectly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or encouraging such\nemployee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing Employee, a employer\naffiliated with Company or any competitor of Company or any affiliate thereof.\n(2) Client and Customers. Employee agrees that for a period of one (1) year after the termination of employment with\nthe Company for any reason whatsoever, Employee shall not, on behalf of Employee or on behalf of any other individual, association or entity,\ncall on any of the clients or customers of the Company or any affiliate of the Company for the purpose of soliciting or inducing any of such\ncustomers to acquire (or providing to any of such customers) any product or service provided by the Company or an affiliate of the Company, nor\nwill Employee in any way, directly or indirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take\naway or to divert or direct their business to Employee or any other person or entity by or with which Employee is employed, associated, affiliated\nor otherwise related.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly, engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. If you are terminated\nwithout “Cause” as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six (6) months\nunless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of termination in\nexchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the\n-2-\nprotection of Company and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee\nagrees that, in addition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be\nentitled to seek and obtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of\nrestraining Employee from any actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term of\nemployment.\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee’s obligations to the Company under this Agreement.\n4. Proprietary Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery of Documents and Data Upon Termination. In the event of termination of Employee’s employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany’s trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in fines and an award against Employee for damages as well as the Company’s attorneys’ fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Company’s available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this\n-3-\nAgreement shall be a waiver of any preceding or succeeding breach of the same, or any other promise or condition. No waiver by the Company\nof any right shall be construed as a waiver of any other right. The Company shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n8. Attorneys’ Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’\nfees, costs, and expenses.\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a\nmaterial condition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties.\nThis Agreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the\nbenefit of the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern\nthe validity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one\nor more of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in\nwhole or in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any\ntime, at the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the\nforegoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or\nlimit the scope, intent or interpretation of this Agreement.\n-4-\nAGS LLC\nBy: /s/ Robert Miodunski\n“Company”\n/s/ Curt Mayer\n(Signature of Employee)\nCurt Mayer\n“Employee”\n-5-
8ab95263bfe4f3d9d8080b97ee5f9781.pdf	effective_date jurisdiction party term	EX-2.2 3 dex22.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - MONROE MILSTEIN\nExhibit 2.2\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Monroe Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business”), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller ’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nMonroe G. Milstein\n96-01 Collins Avenue PH 301\nBal Harbour, Florida 33154\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under\n4\nany applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other\njurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision\nhad never been contained herein. The parties agree that a court of competent jurisdiction making a determination of the invalidity or unenforceability\nof any term or provision of Section 2 of this Agreement shall have the power to reduce the scope, duration or area of any such term or provision, to\ndelete specific words or phrases or to replace any invalid or unenforceable term or provision in Section 2 with a term or provision that is valid and\nenforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be\nenforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties hereby irrevocably consent to the\nservice of process of any of the aforementioned courts in any\n5\nsuch suit, action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid and return receipt requested, to its\naddress set forth in Section 4, such service to become effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n*****\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy: /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Monroe G. Milstein\nMonroe G. Milstein	EX-2.2 3 dex22.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - MONROE MILSTEIN\nExhibit 2.2\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Monroe Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business™), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n \n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n \n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n \n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nMonroe G. Milstein\n96-01 Collins Avenue PH 301\nBal Harbour, Florida 33154\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28™ Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party. Any notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof. 5. General Provisions. (a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of this Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree to which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of Seller, enforceable in accordance with its terms. (b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under 4\nany applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other\njurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision\nhad never been contained herein. The parties agree that a court of competent jurisdiction making a determination of the invalidity or unenforceability\nof any term or provision of Section 2 of this Agreement shall have the power to reduce the scope, duration or area of any such term or provision, to\ndelete specific words or phrases or to replace any invalid or unenforceable term or provision in Section 2 with a term or provision that is valid and\nenforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be\nenforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties hereby irrevocably consent to the\nservice of process of any of the aforementioned courts in any\nsuch suit, action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid and return receipt requested, to its\naddress set forth in Section 4, such service to become effective 10 days after such mailing.\n \n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(1) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\nk ok ok ok K\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy:  /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Monroe G. Milstein\nMonroe G. Milstein	EX-2.2 3 dex22.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT MONROE MILSTEIN\nExhibit 2.2\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n"Company."), and Monroe Milstein ("Seller"). For purposes of this Agreement, unless the context requires otherwise, the term "Company." shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n("BlueBlazer") and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the "Merger Sub") and BlueBlazer, dated as of January 18, 2006 (the "Merger Agreement") has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby\nthe Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach\nof\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the "Non-Compete Period"), neither Seller nor any of\nSeller's Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the "Territory.")\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise\nfinance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a "Competing Business"), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, "Affiliate" of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where "control" means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller's Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor\nany\nof Seller's Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller's Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute "interference" under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company's prior written consent (which consent shall not unreasonably be withheld), Seller and Seller's Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company's withholding of consent with respect to Seller's or Seller's Affiliate's hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller's\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller's Affiliates wishes to hire any such person or persons, it shall SO notify the Company (the "Notice'),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company's receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany,\nor in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute "interference" under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company.) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nMonroe G. Milstein\n96-01 Collins Avenue PH 301\nBal Harbour, Florida 33154\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller's execution, delivery and performance of\nthis\nAgreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability.. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under\n4\nany applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other\njurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision\nhad never been contained herein. The parties agree that a court of competent jurisdiction making a determination of the invalidity or unenforceability\nof any term or provision of Section 2 of this Agreement shall have the power to reduce the scope, duration or area of any such term or provision, to\ndelete specific words or phrases or to replace any invalid or unenforceable term or provision in Section 2 with a term or provision that is valid and\nenforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be\nenforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application\nof\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties hereby irrevocably consent to the\nservice of process of any of the aforementioned courts in any\n5\nsuch suit, action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid and return receipt requested, to its\naddress set forth in Section 4, such service to become effective 10 days after such mailing\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word "including" shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller's breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby\nSeller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(I) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n* * * * *\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy:\n/s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Monroe G. Milstein\nMonroe G. Milstein	EX-2.2 3 dex22.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - MONROE MILSTEIN\nExhibit 2.2\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Monroe Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business”), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller ’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nMonroe G. Milstein\n96-01 Collins Avenue PH 301\nBal Harbour, Florida 33154\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under\n4\nany applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other\njurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision\nhad never been contained herein. The parties agree that a court of competent jurisdiction making a determination of the invalidity or unenforceability\nof any term or provision of Section 2 of this Agreement shall have the power to reduce the scope, duration or area of any such term or provision, to\ndelete specific words or phrases or to replace any invalid or unenforceable term or provision in Section 2 with a term or provision that is valid and\nenforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be\nenforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties hereby irrevocably consent to the\nservice of process of any of the aforementioned courts in any\n5\nsuch suit, action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid and return receipt requested, to its\naddress set forth in Section 4, such service to become effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n*****\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy: /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Monroe G. Milstein\nMonroe G. Milstein
92f9092809b0d99117cb69418566bdc2.pdf	effective_date jurisdiction party term	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of December 12th, 2008, is between\nNetSpend Corporation, a Delaware corporation, with offices at 701 Brazos Street, suite 1200, Austin, Texas 78701 (“NetSpend”), and JTH Tax\nInc., a Delaware corporation, d/b/a “Liberty Tax Service” with offices at 1716 Corporate Landing Parkway, Virginia Beach, Virginia 23454\n(“Liberty”), and is entered into to ensure the protection and preservation of the confidential and/or proprietary nature of information that the\nParties (as hereinafter defined) contemplate disclosing to one another in order to consider possible strategic transactions involving one or more\nissuing banks (the “Transaction”).\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the “Disclosing Party” and\nthe Party receiving the Confidential Information is the “Receiving Party.” Each of NetSpend and Liberty and their respective subsidiaries and\naffiliates shall be referred to herein individually as a “Party” and collectively as the “Parties.”\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as\nfollows:\n1.\nConfidential Information. For purposes of this Agreement, the term “Confidential Information” shall be deemed to\ninclude (i) any information (including historical financial information that has not been publicly disclosed), concerning the business, assets,\noperations, financial condition or projections, technology, customers, strategic partners and business plans and models of the Disclosing Party\nincluded in information that has been or in the future is furnished by or on behalf of the Disclosing Party and (ii) notes, analysis, compilations,\nstudies, interpretations, memoranda or other documents and writings prepared by the Receiving Party or its directors, officers, employees,\nsubsidiaries and advisors (“Representatives”) which contain, reflect or are based upon, in whole or in part, any information described in clause\n(i) above that has been or in the future is furnished by the Disclosing Party or its Representatives.\n2.\nNon-Disclosure and Use Restrictions.\nEach Party shall keep the Confidential Information of the other Party\nstrictly confidential for a period of five (5) years from the date hereof and shall not disclose such Confidential Information to any third parties,\nother than its Representatives, without the prior written consent of the Disclosing Party. Each Party shall use the Confidential Information\nreceived from the other Party only for the purpose of evaluating the Transaction (including the effects of its consummation), and in no event for\nany other commercial, business or other purpose or for any other purpose competitively, strategically or otherwise disadvantageous, directly or\nindirectly, to the Disclosing Party. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work rights, or\nany other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one Party to\nthe other Party.\n3.\nCopying.\nConfidential Information supplied by one Party shall not be reproduced by the other Party in any\nform except to the extent reasonably necessary to enable such other Party to evaluate the Transaction.\n4.\nCare. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and\nconfidential and shall use the same degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as\nthe Receiving Party provides to protect its own Confidential Information but no less than reasonable care. The Receiving Party shall maintain the\nConfidential Information received from the Disclosing Party in confidence and shall retain such Confidential Information in a secure place. The\nReceiving Party shall disclose and permit access to such Confidential Information only to those of its Representatives who reasonably need to\nknow such information in order to evaluate the Transaction and with whom the Receiving Party has established practices or procedures to\nmaintain the confidence of such Confidential Information and who are informed of the confidential and proprietary nature of such information\nand the provisions of this Agreement. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its\nRepresentatives.\n5.\nOwnership.\nAll Confidential Information shall remain the property of the Disclosing Party, and all documents or\nother tangible or electronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the\noption of the Receiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or\nupon the request of the Disclosing Party. The Receiving Party’s counsel may retain one copy to be kept confidential and used solely for archival\npurposes. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6.\nLimitation.\nIt is understood that the term “Confidential Information” does not include information that:\n(a)\nhas been published or is now or becomes in the public domain without breach of this Agreement by the Receiving\nParty;\n(b)\nprior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c)\nsubsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in\nsuch party’s possession and is not restricted from further disseminating the information;\n(d)\nis independently developed by the Receiving Party without use of the Confidential Information of the Disclosing\nParty;\n(e)\nis disclosed without further restriction to a third party with the written approval of the Disclosing Party; or\n2\n(f)\nis provided solely pursuant to and in connection with the parties’ existing commercial relationship pursuant to that\ncertain Distributor Agreement between the parties dated as of October 1, 2008, that certain Third-Party Agency\nAgreement among the parties hereto and Inter National Bank, N.A. dated as of October 1, 2008, and the Mutual Non-\ndisclosure Agreement between the parties dated as of October 29, 2007 (such agreements, the “Existing Commercial\nAgreements”).\n7.\nLegally Required Disclosure. If either Party is requested or required by law or by any court of competent authority or\ngovernmental agency or authority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information\n(the “Requested Party”) will provide such other Party (the “Owning Party”) with prompt written notice of such request or requirement prior to\nsuch disclosure. The Owning Party receiving such notice may then either seek appropriate protective relief from all or part of such request or\nrequirement (including confidential treatment of any such disclosure if required) or waive the Requested Party’s compliance with the provisions\nof this Agreement with respect to all or part of such request or requirement. Each Party agrees that if it is the Requested Party, it will reasonably\ncooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to seek. If the Owning Party fails to\nobtain such relief, and, in the opinion of counsel for the Requested Party, the Requested party is legally compelled to disclose any of the\nConfidential Information, then the Requested Party may disclose that portion of the Confidential Information which counsel to such Requested\nParty advises that it is compelled to disclose.\n8.\nRelief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be\ndifficult to ascertain, the Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each\nother, specific performance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this\nAgreement and that such Party seeking equitable relief may do so without the necessity to post any bond therefore.\n9.\nRight to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information\nthat it previously has disclosed or will disclose to the other Party pursuant to this Agreement. With the exception of the foregoing express\nwarranty and with the exception of any warranty as may be provided in definitive agreements, if any, that may be executed after the date hereof\nin connection with the Transaction or otherwise, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO ANY CONFIDENTIAL INFORMATION, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS\nTO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION.\n10.\nDisclosure. Except as required by law, all media releases and public announcements or disclosures by either of the\nParties relating to this Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the\nrelease thereof. It is understood and agreed that, except in accordance with Section 7, neither\n3\nParty shall disclose to any third party (other than its Representatives) the fact that the Parties are in discussions concerning the Transaction, or the\nstatus or terms of such discussions, without the prior written consent of the other Party.\n11.\nTerm. This Agreement shall continue in full force and effect for a period of one (1) year from the date hereof and then\nshall automatically expire and terminate. The obligations of the Parties described in Section 2 through 9, and 11 through 20, however, shall\ncontinue after the termination of this Agreement for the duration set forth in such provision or, if not therein defined, perpetually.\n12.\nGoverning Law. This Agreement shall be governed by and construed under the laws of the State of Texas without\ngiving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction.\n13.\nSecurities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are\ninformed of the matters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public\ninformation about a company from purchasing or selling securities of such company or from communicating such information to a third party\nunder circumstances in which it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such\ninformation. Each Party agrees that it will not use or cause any other person to use, and that it will use reasonable efforts to assure that none of its\nRepresentatives will use or cause any other person to use, any Confidential Information in contravention of the United States securities laws.\n14.\nAmendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the\nobservance of any term or provision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either\nParty in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.\n15.\nSuccessors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective\nsuccessors (including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the\nprior express written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control\ntransaction shall be expressly permitted.\n16.\nPrior Agreements. This Agreement sets forth the entire agreement and understanding of the Parties relating to the\nsubject matter herein; provided, however, this Agreement is not intended to supersede or replace any existing confidentiality or non-disclosure\nagreement between the Parties, including without limitation the Existing Commercial Agreements, except as to the obligations of the parties\nrelating to Confidential Information disclosed for the purpose of considering a Transaction. This Agreement shall control for all\n4\npurposes as to the matters contained herein. This Agreement may be modified only in writing, signed by each Party.\n17.\nCounterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original\nand all of which shall be deemed to be one and the same instrument.\n18.\nLimitation. This Agreement does not constitute or create any obligation on the part of either Party to provide any\nConfidential Information or other information to the other Party, but merely defines the rights, duties and obligations of the Parties with respect\nto the Confidential Information to the extent it may be disclosed or made available. The Parties acknowledge and agree that no contract or\nagreement providing for a Transaction shall be deemed to exist unless and until a definitive agreement has been executed and delivered by the\nParties. The Parties also agree that unless and until a definitive agreement with respect to a Transaction has been executed and delivered by the\nParties, there shall not be any legal obligation of any kind whatsoever with respect to any such Transaction by virtue of this Agreement or any\nother written or oral expression or proposal with respect to such Transaction except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n5\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nNETSPEND CORPORATION\nBy: /s/Christopher T. Brown\nName: Christopher T. Brown\nTitle: General Counsel\nJTH TAX INC.\nBy: /s/Mark F. Baumgartner\nName: Mark F. Baumgartner\nTitle: VP/CFO\n6	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of December 12th, 2008, is between\nNetSpend Corporation, a Delaware corporation, with offices at 701 Brazos Street, suite 1200, Austin, Texas 78701 (“NetSpend”), and JTH Tax\nInc., a Delaware corporation, d/b/a “Liberty Tax Service” with offices at 1716 Corporate Landing Parkway, Virginia Beach, Virginia 23454\n(“Liberty”), and is entered into to ensure the protection and preservation of the confidential and/or proprietary nature of information that the\nParties (as hereinafter defined) contemplate disclosing to one another in order to consider possible strategic transactions involving one or more\nissuing banks (the “Transaction”).\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the “Disclosing Party” and\nthe Party receiving the Confidential Information is the “Receiving Party.” Each of NetSpend and Liberty and their respective subsidiaries and\naffiliates shall be referred to herein individually as a “Party” and collectively as the “Parties.”\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as\nfollows:\n1. Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall be deemed to\ninclude (i) any information (including historical financial information that has not been publicly disclosed), concerning the business, assets,\noperations, financial condition or projections, technology, customers, strategic partners and business plans and models of the Disclosing Party\nincluded in information that has been or in the future is furnished by or on behalf of the Disclosing Party and (ii) notes, analysis, compilations,\nstudies, interpretations, memoranda or other documents and writings prepared by the Receiving Party or its directors, officers, employees,\nsubsidiaries and advisors (“Representatives”) which contain, reflect or are based upon, in whole or in part, any information described in clause\n(i) above that has been or in the future is furnished by the Disclosing Party or its Representatives.\n2. Non-Disclosure and Use Restrictions. Each Party shall keep the Confidential Information of the other Party\nstrictly confidential for a period of five (5) years from the date hereof and shall not disclose such Confidential Information to any third parties,\nother than its Representatives, without the prior written consent of the Disclosing Party. Each Party shall use the Confidential Information\nreceived from the other Party only for the purpose of evaluating the Transaction (including the effects of its consummation), and in no event for\nany other commercial, business or other purpose or for any other purpose competitively, strategically or otherwise disadvantageous, directly or\nindirectly, to the Disclosing Party. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work rights, or\nany other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one Party to\nthe other Party.\n \n3. Copying. Confidential Information supplied by one Party shall not be reproduced by the other Party in any\nform except to the extent reasonably necessary to enable such other Party to evaluate the Transaction.\n4. Care. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and\nconfidential and shall use the same degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as\nthe Receiving Party provides to protect its own Confidential Information but no less than reasonable care. The Receiving Party shall maintain the\nConfidential Information received from the Disclosing Party in confidence and shall retain such Confidential Information in a secure place. The\nReceiving Party shall disclose and permit access to such Confidential Information only to those of its Representatives who reasonably need to\nknow such information in order to evaluate the Transaction and with whom the Receiving Party has established practices or procedures to\nmaintain the confidence of such Confidential Information and who are informed of the confidential and proprietary nature of such information\nand the provisions of this Agreement. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its\nRepresentatives.\n5. Ownership. All Confidential Information shall remain the property of the Disclosing Party, and all documents or\nother tangible or electronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the\noption of the Receiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or\nupon the request of the Disclosing Party. The Receiving Party’s counsel may retain one copy to be kept confidential and used solely for archival\npurposes. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6. Limitation. It is understood that the term “Confidential Information” does not include information that:\n(a) has been published or is now or becomes in the public domain without breach of this Agreement by the Receiving\nParty;\n(b) prior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(0 subsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in\nsuch party’s possession and is not restricted from further disseminating the information;\n(d) is independently developed by the Receiving Party without use of the Confidential Information of the Disclosing\n \nParty;\n(e) is disclosed without further restriction to a third party with the written approval of the Disclosing Party; or\n2\n® is provided solely pursuant to and in connection with the parties’ existing commercial relationship pursuant to that\ncertain Distributor Agreement between the parties dated as of October 1, 2008, that certain Third-Party Agency\nAgreement among the parties hereto and Inter National Bank, N.A. dated as of October 1, 2008, and the Mutual Non-\ndisclosure Agreement between the parties dated as of October 29, 2007 (such agreements, the “Existing Commercial\nAgreements”).\n7. Legally Required Disclosure. If either Party is requested or required by law or by any court of competent authority or\ngovernmental agency or authority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information\n(the “Requested Party”) will provide such other Party (the “Owning Party”) with prompt written notice of such request or requirement prior to\nsuch disclosure. The Owning Party receiving such notice may then either seek appropriate protective relief from all or part of such request or\nrequirement (including confidential treatment of any such disclosure if required) or waive the Requested Party’s compliance with the provisions\nof this Agreement with respect to all or part of such request or requirement. Each Party agrees that if it is the Requested Party, it will reasonably\ncooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to seek. If the Owning Party fails to\nobtain such relief, and, in the opinion of counsel for the Requested Party, the Requested party is legally compelled to disclose any of the\nConfidential Information, then the Requested Party may disclose that portion of the Confidential Information which counsel to such Requested\nParty advises that it is compelled to disclose.\n8. Relief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be\ndifficult to ascertain, the Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each\nother, specific performance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this\nAgreement and that such Party seeking equitable relief may do so without the necessity to post any bond therefore.\n9. Right to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information\nthat it previously has disclosed or will disclose to the other Party pursuant to this Agreement. With the exception of the foregoing express\nwarranty and with the exception of any warranty as may be provided in definitive agreements, if any, that may be executed after the date hereof\nin connection with the Transaction or otherwise, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO ANY CONFIDENTIAL INFORMATION, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS\nTO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION.\n10. Disclosure.  Except as required by law, all media releases and public announcements or disclosures by either of the\nParties relating to this Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the\nrelease thereof. It is understood and agreed that, except in accordance with Section 7, neither\n3\n \nParty shall disclose to any third party (other than its Representatives) the fact that the Parties are in discussions concerning the Transaction, or the\nstatus or terms of such discussions, without the prior written consent of the other Party.\n11. Term. This Agreement shall continue in full force and effect for a period of one (1) year from the date hereof and then\nshall automatically expire and terminate. The obligations of the Parties described in Section 2 through 9, and 11 through 20, however, shall\ncontinue after the termination of this Agreement for the duration set forth in such provision or, if not therein defined, perpetually.\n12. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Texas without\ngiving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction.\n13. Securities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are\ninformed of the matters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public\ninformation about a company from purchasing or selling securities of such company or from communicating such information to a third party\nunder circumstances in which it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such\ninformation. Each Party agrees that it will not use or cause any other person to use, and that it will use reasonable efforts to assure that none of its\nRepresentatives will use or cause any other person to use, any Confidential Information in contravention of the United States securities laws.\n14. Amendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the\nobservance of any term or provision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either\nParty in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.\n15. Successors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective\nsuccessors (including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the\nprior express written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control\ntransaction shall be expressly permitted.\n16. Prior Agreements. This Agreement sets forth the entire agreement and understanding of the Parties relating to the\nsubject matter herein; provided, however, this Agreement is not intended to supersede or replace any existing confidentiality or non-disclosure\nagreement between the Parties, including without limitation the Existing Commercial Agreements, except as to the obligations of the parties\nrelating to Confidential Information disclosed for the purpose of considering a Transaction. This Agreement shall control for all\n4\n \npurposes as to the matters contained herein. This Agreement may be modified only in writing, signed by each Party.\n17. Counterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original\nand all of which shall be deemed to be one and the same instrument.\n18. Limitation. This Agreement does not constitute or create any obligation on the part of either Party to provide any\nConfidential Information or other information to the other Party, but merely defines the rights, duties and obligations of the Parties with respect\nto the Confidential Information to the extent it may be disclosed or made available. The Parties acknowledge and agree that no contract or\nagreement providing for a Transaction shall be deemed to exist unless and until a definitive agreement has been executed and delivered by the\nParties. The Parties also agree that unless and until a definitive agreement with respect to a Transaction has been executed and delivered by the\nParties, there shall not be any legal obligation of any kind whatsoever with respect to any such Transaction by virtue of this Agreement or any\nother written or oral expression or proposal with respect to such Transaction except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n \nIN WITNESS WHEREQF, the Parties have executed this Agreement as of the date first above written.\nNETSPEND CORPORATION\nBy: /s/Christopher T. Brown\nName: Christopher T. Brown\nTitle: General Counsel\nJTH TAX INC.\nBy: /s/Mark F. Baumgartner\nName: Mark F. Baumgartner\nTitle: VP/CFO\n	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement"), dated as of December 12th, 2008, is between\nNetSpend Corporation, a Delaware corporation, with offices at 701 Brazos Street, suite 1200, Austin, Texas 78701 ("NetSpend"), and JTH Tax\nInc., a Delaware corporation, d/b/a "Liberty Tax Service" with offices at 1716 Corporate Landing Parkway, Virginia Beach, Virginia 23454\n("Liberty"), and is entered into to ensure the protection and preservation of the confidential and/or proprietary nature of information that the\nParties (as hereinafter defined) contemplate disclosing to one another in order to consider possible strategic transactions involving one or more\nissuing banks (the "Transaction").\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the "Disclosing Party" and\nthe\nParty\nreceiving the Confidential Information is the "Receiving Party." Each of NetSpend and Liberty and their respective subsidiaries and\naffiliates shall be referred to herein individually as a "Party" and collectively as the "Parties."\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as\nfollows:\n1.\nConfidential Information. For purposes of this Agreement, the term "Confidential Information" shall be deemed to\ninclude (i) any information (including historical financial information that has not been publicly disclosed), concerning the business, assets,\noperations, financial condition or projections, technology, customers, strategic partners and business plans and models of the Disclosing Party\nincluded in information that has been or in the future is furnished by or on behalf of the Disclosing Party and (ii) notes, analysis, compilations,\nstudies, interpretations, memoranda or other documents and writings prepared by the Receiving Party or its directors, officers, employees,\nsubsidiaries and advisors ("Representatives") which contain, reflect or are based upon, in whole or in part, any information described in clause\n(i) above that has been or in the future is furnished by the Disclosing Party or its Representatives.\n2.\nNon-Disclosure and Use Restrictions.\nEach Party shall keep the Confidential Information of the other Party\nstrictly confidential for a period of five (5) years from the date hereof and shall not disclose such Confidential Information to any third parties,\nother than its Representatives, without the prior written consent of the Disclosing Party. Each Party shall use the Confidential Information\nreceived from the other Party only for the purpose of evaluating the Transaction (including the effects of its consummation), and in no event for\nany other commercial, business or other purpose or for any other purpose competitively, strategically or otherwise disadvantageous, directly or\nindirectly, to the Disclosing Party. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work rights, or\nany other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidentia Information by one Party to\nthe other Party.\n3.\nCopying.\nConfidential Information supplied by one Party shall not be reproduced by the other Party in any\nform except to the extent reasonably necessary to enable such other Party to evaluate the Transaction.\n4.\nCare. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and\nconfidential and shall use the same degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party\nas\nthe Receiving Party provides to protect its own Confidential Information but no less than reasonable care. The Receiving Party shall maintain the\nConfidential Information received from the Disclosing Party in confidence and shall retain such Confidential Information in a secure place. The\nReceiving Party shall disclose and permit access to such Confidential Information only to those of its Representatives who reasonably need to\nknow such information in order to evaluate the Transaction and with whom the Receiving Party has established practices or procedures to\nmaintain the confidence of such Confidential Information and who are informed of the confidential and proprietary nature of such information\nand the provisions of this Agreement. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its\nRepresentatives.\n5.\nOwnership. All Confidential Information shall remain the property of the Disclosing Party, and all documents or\nother tangible or electronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the\noption of the Receiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party's need for it has expired or\nupon the request of the Disclosing Party. The Receiving Party's counsel may retain one copy to be kept confidential and used solely for archival\npurposes. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6.\nLimitation.\nIt is understood that the term "Confidentia Information" does not include information that:\n(a)\nhas been published or is now or becomes in the public domain without breach of this Agreement by the Receiving\nParty;\n(b)\nprior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c)\nsubsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in\nsuch party's possession and is not restricted from further disseminating the information;\n(d)\nis\nindependently developed by the Receiving Party without use of the Confidential Information of the Disclosing\nParty;\n(e)\nis\ndisclosed without further restriction to a third party with the written approval of the Disclosing Party;\nor\n2\n(f)\nis provided solely pursuant to and in connection with the parties' existing commercial relationship pursuant to that\ncertain Distributor Agreement between the parties dated as of October 1, 2008, that certain Third-Party Agency\nAgreement among the parties hereto and Inter National Bank, N.A. dated as of October 1, 2008, and the Mutual Non-\ndisclosure Agreement between the parties dated as of October 29, 2007 (such agreements, the "Existing Commercial\nAgreements").\n7.\nLegally Required Disclosure. If either Party is requested or required by law or by any court of competent authority or\ngovernmental agency or authority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information\n(the "Requested Party") will provide such other Party (the "Owning Party") with prompt written notice of such request or requirement prior to\nsuch disclosure. The Owning Party receiving such notice may then either seek appropriate protective relief from all or part of such request or\nrequirement (including confidential treatment of any such disclosure if required) or waive the Requested Party's compliance with the provisions\nof this Agreement with respect to all or part of such request or requirement. Each Party agrees that if it is the Requested Party, it will reasonably\ncooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to seek. If the Owning Party fails to\nobtain such relief, and, in the opinion of counsel for the Requested Party, the Requested party is legally compelled to disclose any of the\nConfidential Information, then the Requested Party may disclose that portion of the Confidential Information which counsel to such Requested\nParty advises that it is compelled to disclose.\n8.\nRelief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may\nbe\ndifficult to ascertain, the Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each\nother, specific performance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this\nAgreement and that such Party seeking equitable relief may do so without the necessity to post any bond therefore.\n9.\nRight to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information\nthat it previously has disclosed or will disclose to the other Party pursuant to this Agreement. With the exception of the foregoing express\nwarranty and with the exception of any warranty as may be provided in definitive agreements, if any, that may be executed after the date hereof\nin connection with the Transaction or otherwise, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS\nOR\nIMPLIED, WITH RESPECT TO ANY CONFIDENTIAL INFORMATION, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS\nTO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION.\n10.\nDisclosure. Except as required by law, all media releases and public announcements or disclosures by either of the\nParties relating to this Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the\nrelease thereof. It is understood and agreed that, except in accordance with Section 7, neither\n3\nParty shall disclose to any third party (other than its Representatives) the fact that the Parties are in discussions concerning the Transaction, or the\nstatus or terms of such discussions, without the prior written consent of the other Party.\n11.\nTerm. This Agreement shall continue in full force and effect for a period of one (1) year from the date hereof and then\nshall automatically expire and terminate. The obligations of the Parties described in Section 2 through 9, and 11 through 20, however, shall\ncontinue after the termination of this Agreement for the duration set forth in such provision or, if not therein defined, perpetually.\n12.\nGoverning Law. This Agreement shall be governed by and construed under the laws of the State of Texas without\ngiving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction.\n13.\nSecurities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are\ninformed\nof\nthe\nmatters\nthat\nare\nthe\nsubject\nof\nthis\nAgreement,\nthat\nthe\nUnited\nStates\nsecurities\nlaws\nrestrict\npersons\nwith\nmaterial\nnon-public\ninformation about a company from purchasing or selling securities of such company or from communicating such information to a third party\nunder circumstances in which it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such\ninformation. Each Party agrees that it will not use or cause any other person to use, and that it will use reasonable efforts to assure that none of its\nRepresentatives will use or cause any other person to use, any Confidential Information in contravention of the United States securities laws.\n14.\nAmendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the\nobservance of any term or provision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either\nParty in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.\n15.\nSuccessors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective\nsuccessors (including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the\nprior express written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control\ntransaction shall be expressly permitted.\n16.\nPrior Agreements. This Agreement sets forth the entire agreement and understanding of the Parties relating to the\nsubject matter herein; provided, however, this Agreement is not intended to supersede or replace any existing confidentiality or non-disclosure\nagreement between the Parties, including without limitation the Existing Commercial Agreements, except as to the obligations of the parties\nrelating to Confidential Information disclosed for the purpose of considering a Transaction. This Agreement shall control for all\n4\npurposes as to the matters contained herein. This Agreement may be modified only in writing, signed by each Party.\n17.\nCounterparts. This Agreement may be executed in multiple identica counterparts, each of which shall be an original\nand all of which shall be deemed to be one and the same instrument.\n18.\nLimitation. This Agreement does not constitute or create any obligation on the part of either Party to provide\nany\nConfidential Information or other information to the other Party, but merely defines the rights, duties and obligations of the Parties with respect\nto the Confidential Information to the extent it may be disclosed or made available. The Parties acknowledge and agree that no contract or\nagreement providing for a Transaction shall be deemed to exist unless and until a definitive agreement has been executed and delivered by the\nParties. The Parties also agree that unless and until a definitive agreement with respect to a Transaction has been executed and delivered by the\nParties, there shall not be any legal obligation of any kind whatsoever with respect to any such Transaction by virtue of this Agreement or any\nother written or oral expression or proposal with respect to such Transaction except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n5\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nNETSPEND CORPORATION\nBy: /s/Christopher T. Brown\nName: Christopher T. Brown\nTitle: General Counsel\nJTH TAX INC.\nBy: /s/Mark F. Baumgartner\nName: Mark F. Baumgartner\nTitle: VP/CFO\n6	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of December 12th, 2008, is between\nNetSpend Corporation, a Delaware corporation, with offices at 701 Brazos Street, suite 1200, Austin, Texas 78701 (“NetSpend”), and JTH Tax\nInc., a Delaware corporation, d/b/a “Liberty Tax Service” with offices at 1716 Corporate Landing Parkway, Virginia Beach, Virginia 23454\n(“Liberty”), and is entered into to ensure the protection and preservation of the confidential and/or proprietary nature of information that the\nParties (as hereinafter defined) contemplate disclosing to one another in order to consider possible strategic transactions involving one or more\nissuing banks (the “Transaction”).\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the “Disclosing Party” and\nthe Party receiving the Confidential Information is the “Receiving Party.” Each of NetSpend and Liberty and their respective subsidiaries and\naffiliates shall be referred to herein individually as a “Party” and collectively as the “Parties.”\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as\nfollows:\n1.\nConfidential Information. For purposes of this Agreement, the term “Confidential Information” shall be deemed to\ninclude (i) any information (including historical financial information that has not been publicly disclosed), concerning the business, assets,\noperations, financial condition or projections, technology, customers, strategic partners and business plans and models of the Disclosing Party\nincluded in information that has been or in the future is furnished by or on behalf of the Disclosing Party and (ii) notes, analysis, compilations,\nstudies, interpretations, memoranda or other documents and writings prepared by the Receiving Party or its directors, officers, employees,\nsubsidiaries and advisors (“Representatives”) which contain, reflect or are based upon, in whole or in part, any information described in clause\n(i) above that has been or in the future is furnished by the Disclosing Party or its Representatives.\n2.\nNon-Disclosure and Use Restrictions.\nEach Party shall keep the Confidential Information of the other Party\nstrictly confidential for a period of five (5) years from the date hereof and shall not disclose such Confidential Information to any third parties,\nother than its Representatives, without the prior written consent of the Disclosing Party. Each Party shall use the Confidential Information\nreceived from the other Party only for the purpose of evaluating the Transaction (including the effects of its consummation), and in no event for\nany other commercial, business or other purpose or for any other purpose competitively, strategically or otherwise disadvantageous, directly or\nindirectly, to the Disclosing Party. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work rights, or\nany other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one Party to\nthe other Party.\n3.\nCopying.\nConfidential Information supplied by one Party shall not be reproduced by the other Party in any\nform except to the extent reasonably necessary to enable such other Party to evaluate the Transaction.\n4.\nCare. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and\nconfidential and shall use the same degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as\nthe Receiving Party provides to protect its own Confidential Information but no less than reasonable care. The Receiving Party shall maintain the\nConfidential Information received from the Disclosing Party in confidence and shall retain such Confidential Information in a secure place. The\nReceiving Party shall disclose and permit access to such Confidential Information only to those of its Representatives who reasonably need to\nknow such information in order to evaluate the Transaction and with whom the Receiving Party has established practices or procedures to\nmaintain the confidence of such Confidential Information and who are informed of the confidential and proprietary nature of such information\nand the provisions of this Agreement. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its\nRepresentatives.\n5.\nOwnership.\nAll Confidential Information shall remain the property of the Disclosing Party, and all documents or\nother tangible or electronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the\noption of the Receiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or\nupon the request of the Disclosing Party. The Receiving Party’s counsel may retain one copy to be kept confidential and used solely for archival\npurposes. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6.\nLimitation.\nIt is understood that the term “Confidential Information” does not include information that:\n(a)\nhas been published or is now or becomes in the public domain without breach of this Agreement by the Receiving\nParty;\n(b)\nprior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c)\nsubsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in\nsuch party’s possession and is not restricted from further disseminating the information;\n(d)\nis independently developed by the Receiving Party without use of the Confidential Information of the Disclosing\nParty;\n(e)\nis disclosed without further restriction to a third party with the written approval of the Disclosing Party; or\n2\n(f)\nis provided solely pursuant to and in connection with the parties’ existing commercial relationship pursuant to that\ncertain Distributor Agreement between the parties dated as of October 1, 2008, that certain Third-Party Agency\nAgreement among the parties hereto and Inter National Bank, N.A. dated as of October 1, 2008, and the Mutual Non-\ndisclosure Agreement between the parties dated as of October 29, 2007 (such agreements, the “Existing Commercial\nAgreements”).\n7.\nLegally Required Disclosure. If either Party is requested or required by law or by any court of competent authority or\ngovernmental agency or authority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information\n(the “Requested Party”) will provide such other Party (the “Owning Party”) with prompt written notice of such request or requirement prior to\nsuch disclosure. The Owning Party receiving such notice may then either seek appropriate protective relief from all or part of such request or\nrequirement (including confidential treatment of any such disclosure if required) or waive the Requested Party’s compliance with the provisions\nof this Agreement with respect to all or part of such request or requirement. Each Party agrees that if it is the Requested Party, it will reasonably\ncooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to seek. If the Owning Party fails to\nobtain such relief, and, in the opinion of counsel for the Requested Party, the Requested party is legally compelled to disclose any of the\nConfidential Information, then the Requested Party may disclose that portion of the Confidential Information which counsel to such Requested\nParty advises that it is compelled to disclose.\n8.\nRelief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be\ndifficult to ascertain, the Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each\nother, specific performance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this\nAgreement and that such Party seeking equitable relief may do so without the necessity to post any bond therefore.\n9.\nRight to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information\nthat it previously has disclosed or will disclose to the other Party pursuant to this Agreement. With the exception of the foregoing express\nwarranty and with the exception of any warranty as may be provided in definitive agreements, if any, that may be executed after the date hereof\nin connection with the Transaction or otherwise, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO ANY CONFIDENTIAL INFORMATION, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS\nTO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION.\n10.\nDisclosure. Except as required by law, all media releases and public announcements or disclosures by either of the\nParties relating to this Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the\nrelease thereof. It is understood and agreed that, except in accordance with Section 7, neither\n3\nParty shall disclose to any third party (other than its Representatives) the fact that the Parties are in discussions concerning the Transaction, or the\nstatus or terms of such discussions, without the prior written consent of the other Party.\n11.\nTerm. This Agreement shall continue in full force and effect for a period of one (1) year from the date hereof and then\nshall automatically expire and terminate. The obligations of the Parties described in Section 2 through 9, and 11 through 20, however, shall\ncontinue after the termination of this Agreement for the duration set forth in such provision or, if not therein defined, perpetually.\n12.\nGoverning Law. This Agreement shall be governed by and construed under the laws of the State of Texas without\ngiving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction.\n13.\nSecurities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are\ninformed of the matters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public\ninformation about a company from purchasing or selling securities of such company or from communicating such information to a third party\nunder circumstances in which it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such\ninformation. Each Party agrees that it will not use or cause any other person to use, and that it will use reasonable efforts to assure that none of its\nRepresentatives will use or cause any other person to use, any Confidential Information in contravention of the United States securities laws.\n14.\nAmendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the\nobservance of any term or provision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either\nParty in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.\n15.\nSuccessors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective\nsuccessors (including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the\nprior express written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control\ntransaction shall be expressly permitted.\n16.\nPrior Agreements. This Agreement sets forth the entire agreement and understanding of the Parties relating to the\nsubject matter herein; provided, however, this Agreement is not intended to supersede or replace any existing confidentiality or non-disclosure\nagreement between the Parties, including without limitation the Existing Commercial Agreements, except as to the obligations of the parties\nrelating to Confidential Information disclosed for the purpose of considering a Transaction. This Agreement shall control for all\n4\npurposes as to the matters contained herein. This Agreement may be modified only in writing, signed by each Party.\n17.\nCounterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original\nand all of which shall be deemed to be one and the same instrument.\n18.\nLimitation. This Agreement does not constitute or create any obligation on the part of either Party to provide any\nConfidential Information or other information to the other Party, but merely defines the rights, duties and obligations of the Parties with respect\nto the Confidential Information to the extent it may be disclosed or made available. The Parties acknowledge and agree that no contract or\nagreement providing for a Transaction shall be deemed to exist unless and until a definitive agreement has been executed and delivered by the\nParties. The Parties also agree that unless and until a definitive agreement with respect to a Transaction has been executed and delivered by the\nParties, there shall not be any legal obligation of any kind whatsoever with respect to any such Transaction by virtue of this Agreement or any\nother written or oral expression or proposal with respect to such Transaction except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n5\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nNETSPEND CORPORATION\nBy: /s/Christopher T. Brown\nName: Christopher T. Brown\nTitle: General Counsel\nJTH TAX INC.\nBy: /s/Mark F. Baumgartner\nName: Mark F. Baumgartner\nTitle: VP/CFO\n6
9436bf2d6f219936711abf8357a054aa.pdf	effective_date jurisdiction party term	EX-99.(E)(8) 3 dex99e8.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit (e)(8)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of September 10, 2008, by and\nbetween Hifn, Inc. (the “Company”), and Exar Corporation (“Exar”). In consideration of the mutual covenants and conditions contained herein, to\ninduce the parties hereto to provide certain information to each other and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the parties to this Agreement do hereby agree as follows:\n1. Definition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall collectively refer to all non-\npublic information or material disclosed or provided by one party to the other, either orally or in writing, or obtained by the recipient party from a\nthird party or any other source, concerning any aspect of the business or affairs of the other party or its “affiliates” (as such term is defined in Rule\n12b-2 under the Securities Exchange Act of 1934), including without limitation, any information or material pertaining to products, formulae,\nspecifications, designs, processes, plans, policies, procedures, employees, work conditions, legal and regulatory affairs, assets, inventory,\ndiscoveries, trademarks, patents, manufacturing, packaging, distribution, sales, marketing, expenses, financial statements and data, customer and\nsupplier lists, raw materials, costs of goods and relationships with third parties. Confidential Information also includes any notes, analyses,\ncompilations, studies or other material or documents prepared by the recipient party which contain, reflect or are based, in whole or in part, on the\nConfidential Information.\nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly\navailable through no action or fault of the recipient party, (ii) was already in the recipient party’s possession or known to the recipient party prior to\nbeing disclosed or provided to the recipient party by or on behalf of the other party, provided, that, the source of such information or material was\nnot bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing party or any other party with respect thereto,\n(iii) was or is obtained by the recipient party from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary\nobligation of confidentiality to the non-disclosing party or any other party with respect to such information or material, or (iv) is independently\ndeveloped by the recipient party without reference to the Confidential Information.\n2. Restrictions on Disclosure and Use. The Company and Exar do hereby covenant and agree with each other as follows:\n2.1 Non-disclosure. Both parties shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to any person or\nentity, (i) any information about the potential sale of all or a portion of all of the assets or equity securities of the Company (the “Transaction”) or the\nfact that either party has received the Confidential Information and is considering the Transaction and all discussions between the Company and Exar\nrelated thereto, except that both parties may make such disclosure if it has received the reasonable advice of its outside counsel that such disclosure\nmust be made in order that such party not commit a violation of law, and (ii) the Confidential Information, except to those officers, employees or\nother authorized agents and representatives and professional consultants of such party to whom disclosure is reasonably necessary in connection with\nthe Transaction and who shall agree to be bound by the terms of this Agreement, and except as otherwise consented to in writing by the non-\ndisclosing party. Both parties shall take all actions reasonably necessary to ensure that the Confidential Information remains strictly confidential and\nis not disclosed to or seen, used or obtained by any person or entity except in accordance with the terms of this Agreement. Both parties agree not to\ncontact any employees, customers, or suppliers of the other party or its affiliates with respect to the Transaction or for the purpose of obtaining\ninformation for use in evaluating the Transaction, without the other party’s prior written consent. Exar further agrees that all inquiries, requests for\ninformation and other communications concerning the Transaction shall be made only through RBC Capital Markets Corporation (“RBCCM”)\nunless otherwise advised or permitted by Company.\nIn the event that either party is requested or required (by oral questions, interrogatories, requests for information or documents in legal\nproceedings, subpoena, civil investigative demand or other similar process or by any law, rule or regulation of any governmental agency or\nregulatory authority) to disclose any of the Confidential Information, such party shall provide the other party with prompt written notice of any such\nrequest or requirement so that such other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver, and if one party is nonetheless, legally\ncompelled to disclose Confidential Information, such party may, without liability hereunder, disclose to such tribunal only that portion of the\nConfidential Information which such counsel advises it is legally required to be disclosed, provided that such party shall use its best efforts to\npreserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the other party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be afforded the Confidential Information by such tribunal.\n2.2 Ownership. All Confidential Information of a party shall remain the exclusive property of such party, and no right, title or interest in or to\nany of the Confidential Information or any material developed therefrom is transferred to the recipient party hereby or by its delivery to the recipient\nparty hereunder.\n2.3 Use. The recipient party shall use or cause the Confidential Information to be used only to evaluate the Transaction and in a manner\nconsistent with the terms and conditions of this Agreement and at no time shall the recipient party otherwise use the Confidential Information for the\nbenefit of itself or any other third party or in any manner adverse to, or to the detriment of, the disclosing party or its affiliates or their respective\nshareholders.\n2.4 Other Parties Bound. All affiliates of a recipient party and all directors, officers, employees, agents and representatives of a recipient party\nor its affiliates shall be included within the definition of the term “recipient party” for purposes of this Agreement and shall be bound by the terms\nand conditions of this Agreement. The recipient party shall be responsible for any breaches of this Agreement by any of its affiliates and any\ndirectors, officers, employees, agents and representatives of such recipient party or its affiliates.\n3. No Solicitation. For a period of one year from the date of this Agreement, neither party will directly solicit the employment of any officer or\nemployee of the other party or its affiliates without the prior written consent of such other party.\n4. Return of Confidential Information. A recipient party shall, upon accomplishing the limited purpose of evaluating the Transaction, or at any time\nupon the written request of the other party, immediately return to the other party all Confidential Information (including notes, writings and other\nmaterial developed therefrom by the recipient party) and all copies thereof and retain none for its files. Notwithstanding such return, both parties\nshall continue to be bound by this Agreement.\n5. No Representations or Warranties. The Confidential Information is being provided under this Agreement “as is” and without any representation or\nwarranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the Confidential Information. In no event\nshall either party or its affiliates or any of their respective directors, officers, employees, agents or representatives (including, without limitation,\nRBCCM) have any liability to other party relating to or arising out of any use of the Confidential Information in accordance with this Agreement.\n6. Indemnification. Each party shall indemnify and hold harmless the other party and its affiliates and their respective directors, officers, employees,\nagents and representatives from and against any and all losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees\nand expenses) caused by or arising out of any direct breach of this Agreement or any direct breach for it is responsible hereunder, and any and all\nactions, suits, proceedings, claims, demands or judgments incident thereto.\n7. Equitable Remedies. Both parties hereby agree that their failure to perform any obligation or duty which they have agreed to perform under this\nAgreement may cause irreparable harm to the other party, which harm cannot be adequately compensated for by money damages. It is further agreed\nby both parties that an order of specific performance or for injunctive relief against the recipient party in the event of a breach or default under the\nterms of this Agreement would be equitable and would not work a hardship on the recipient party. Accordingly, in the event of a breach or default by\neither party hereunder, the non-defaulting party, without any bond or other security being required and in addition to whatever other remedies are or\nmight be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against, the other\nparty, with respect to any obligation or duty herein or breach thereof.\n8. No Licenses Granted. Neither party grants any licenses, by implication or otherwise, under any patent, copyright, trademark, trade secret or other\nrights by disclosing Confidential Information under this Agreement.\n9. Definitive Agreement. The Company and Exar understand and agree that no contract or agreement providing for any transaction involving the\nCompany or Exar shall be deemed to exist between Exar and the Company unless and until a final definitive agreement has been executed and\ndelivered, and the Company and Exar hereby waive in advance, any claims (including, without limitation, breach of contract) in connection with any\nsuch transaction unless and until Exar and the Company shall have entered into a final definitive agreement. The Company and Exar also agree that\nunless and until a final definitive agreement between Exar and the Company has been executed and delivered, neither Exar nor the Company will be\nunder any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the matters specifically\nagreed to herein. Both parties reserve the right, in their sole discretion, to reject any and all proposals made by the other party and to terminate\ndiscussions and negotiations with respect to a Transaction at any time. Both parties further understand that (i) either party shall be free to conduct\nany process for any transaction involving the Company or Exar, if and as such party in its sole discretion shall determine (including, without\nlimitation, negotiating with any other interested party and entering into a definitive agreement without prior notice to the other or any other person),\n(ii) any procedures relating to such process or transaction may be changed at any time in either party’s sole discretion without notice to the other or\nany other person, and (iii) neither party shall have any claims whatsoever against the other or any of its agents or representatives (including, without\nlimitation, RBCCM) arising out of or relating to any transaction involving the Company and Exar (other than any claims against the parties to a\ndefinitive agreement in accordance with the terms thereof) nor, unless a definitive agreement is entered into, against any third party with whom a\ntransaction is entered into.\n10. Standstill. Each of the Company and Exar hereby covenant and agree that, for a period of six months from the date of this Agreement, without\nthe prior written consent of the other party, which shall not be unreasonably withheld, it will not in any manner, directly or indirectly, or in\nconjunction with any other person or entity, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any\nacquisition of any securities (or beneficial ownership thereof) or assets of the other party, (ii) any tender or exchange offer, merger or other business\ncombination involving the other party, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect\nto the other party, or (iv) any “solicitation” of “proxies” (as such terms are defined in Rule 14a-1\nunder the Securities Exchange Act of 1934) or consents to vote any securities of the other party; (b) form, join or in any way participate in a “group”\n(as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934) or otherwise act, alone or with others, to seek to acquire or affect\ncontrol or influence the management, board of directors or policies of the other party; (c) enter into any discussions or arrangements with any third\nparty regarding any of the foregoing; or (d) take any action which might force the other party to make a public announcement regarding any of the\nforegoing. Each of the Company and Exar further convenant and agree that, without the prior written consent of the other party, it will not directly or\nindirectly, enter into any agreement, arrangement or understanding, with any other person or entity regarding a possible transaction involving such\nother party of the type and for the term described above.\n11. Notices. Any notices to be given by either party to the other will be sufficiently given if delivered personally or transmitted by facsimile or if sent\nby registered mail, postage prepaid, to the parties at their respective addresses set out below, or to any other addresses as the parties may notify to the\nother from time to time in writing. This notice will be deemed to have been given at the time of delivery, if delivered in person or transmitted by\nfacsimile, or within three business days from the date of posting if sent by registered mail.\nIf to Hifn, Inc.:\n750 University Avenue\nLos Gatos, CA 95031\nAttention: Bill Walker, Chief Financial Officer\nFacsimile: (408) 399-3509\nIf to Exar Corporation:\n48720 Kato Road\nFremont, CA 94538\nAttention: Law Department\nFacsimile: 510-668-7002\n12. Trading in Securities. Both parties acknowledge that they are aware, and agree to advise their directors, officers, employees, agents and\nrepresentatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person\nwho has material, non-public information concerning the Transaction from purchasing or selling securities of a company that may be a party to such\nTransaction or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nis likely to purchase or sell such securities.\n13. Privileged Information and Work Product. To the extent any Confidential Information may include materials subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Exar\nand the Company understand and agree that they both have a commonality of interest with respect to such matters and it is both our desire, intention\nand mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and their respective\nsuccessors and assigns, however, neither party\nshall have the right to assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party;\nprovided, however, that a successor in interest to a party by merger, by operation of law, or by assignment, purchase, or otherwise, of the entire\nbusiness of either party shall acquire all the rights and be subject to all the obligations of such party hereunder, without the necessity of obtaining\nsuch prior written consent; provided, however, that nothing herein shall prevent either party from assigning all of its rights and obligations under this\nAgreement to a subsidiary of that party upon written notice to the other party. This Agreement constitutes the complete agreement between the\nparties hereto with respect to the subject matter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties\nhereto. The section headings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of\nCalifornia, without giving effect to the principles of conflicts of law thereof, and each party consents to personal jurisdiction in such state and\nvoluntarily submits to the jurisdiction of the courts of such state in any action or proceeding relating to this Agreement. Whenever possible, each\nprovision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof is held\nto be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of\nsuch invalidity, illegality, or unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or\namended and no provision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or\ndefault of the same or similar nature. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original,\nbut all of which taken together shall constitute one and the same instrument.\n15. Term. This Agreement shall remain in full force and effect for one year from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nHifn, Inc.\nExar Corporation\nBy /s/ William R. Walker\nBy /s/ Pedro P. Rodriguez\nTitle Chief Financial Officer\nTitle President and Chief Executive Officer	EX-99.(E)(8) 3 dex99e8.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit ()(8)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of September 10, 2008, by and\nbetween Hifn, Inc. (the “Company”), and Exar Corporation (“Exar”). In consideration of the mutual covenants and conditions contained herein, to\ninduce the parties hereto to provide certain information to each other and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the parties to this Agreement do hereby agree as follows:\n1. Definition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall collectively refer to all non-\npublic information or material disclosed or provided by one party to the other, either orally or in writing, or obtained by the recipient party from a\nthird party or any other source, concerning any aspect of the business or affairs of the other party or its “affiliates” (as such term is defined in Rule\n12b-2 under the Securities Exchange Act of 1934), including without limitation, any information or material pertaining to products, formulae,\nspecifications, designs, processes, plans, policies, procedures, employees, work conditions, legal and regulatory affairs, assets, inventory,\ndiscoveries, trademarks, patents, manufacturing, packaging, distribution, sales, marketing, expenses, financial statements and data, customer and\nsupplier lists, raw materials, costs of goods and relationships with third parties. Confidential Information also includes any notes, analyses,\ncompilations, studies or other material or documents prepared by the recipient party which contain, reflect or are based, in whole or in part, on the\nConfidential Information.\nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly\navailable through no action or fault of the recipient party, (ii) was already in the recipient party’s possession or known to the recipient party prior to\nbeing disclosed or provided to the recipient party by or on behalf of the other party, provided, that, the source of such information or material was\nnot bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing party or any other party with respect thereto,\n(iii) was or is obtained by the recipient party from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary\nobligation of confidentiality to the non-disclosing party or any other party with respect to such information or material, or (iv) is independently\ndeveloped by the recipient party without reference to the Confidential Information.\n \n2. Restrictions on Disclosure and Use. The Company and Exar do hereby covenant and agree with each other as follows:\n2.1 Non-disclosure. Both parties shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to any person or\nentity, (i) any information about the potential sale of all or a portion of all of the assets or equity securities of the Company (the “Transaction”) or the\nfact that either party has received the Confidential Information and is considering the Transaction and all discussions between the Company and Exar\nrelated thereto, except that both parties may make such disclosure if it has received the reasonable advice of its outside counsel that such disclosure\nmust be made in order that such party not commit a violation of law, and (ii) the Confidential Information, except to those officers, employees or\nother authorized agents and representatives and professional consultants of such party to whom disclosure is reasonably necessary in connection with\nthe Transaction and who shall agree to be bound by the terms of this Agreement, and except as otherwise consented to in writing by the non-\ndisclosing party. Both parties shall take all actions reasonably necessary to ensure that the Confidential Information remains strictly confidential and\nis not disclosed to or seen, used or obtained by any person or entity except in accordance with the terms of this Agreement. Both parties agree not to\ncontact any employees, customers, or suppliers of the other party or its affiliates with respect to the Transaction or for the purpose of obtaining\ninformation for use in evaluating the Transaction, without the other party’s prior written consent. Exar further agrees that all inquiries, requests for\ninformation and other communications concerning the Transaction shall be made only through RBC Capital Markets Corporation (“RBCCM”)\nunless otherwise advised or permitted by Company.\nIn the event that either party is requested or required (by oral questions, interrogatories, requests for information or documents in legal\nproceedings, subpoena, civil investigative demand or other similar process or by any law, rule or regulation of any governmental agency or\nregulatory authority) to disclose any of the Confidential Information, such party shall provide the other party with prompt written notice of any such\nrequest or requirement so that such other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver, and if one party is nonetheless, legally\ncompelled to disclose Confidential Information, such party may, without liability hereunder, disclose to such tribunal only that portion of the\nConfidential Information which such counsel advises it is legally required to be disclosed, provided that such party shall use its best efforts to\npreserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the other party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be afforded the Confidential Information by such tribunal.\n2.2 Ownership. All Confidential Information of a party shall remain the exclusive property of such party, and no right, title or interest in or to\nany of the Confidential Information or any material developed therefrom is transferred to the recipient party hereby or by its delivery to the recipient\nparty hereunder.\n2.3 Use. The recipient party shall use or cause the Confidential Information to be used only to evaluate the Transaction and in a manner\nconsistent with the terms and conditions of this Agreement and at no time shall the recipient party otherwise use the Confidential Information for the\nbenefit of itself or any other third party or in any manner adverse to, or to the detriment of, the disclosing party or its affiliates or their respective\nshareholders.\n2.4 Other Parties Bound. All affiliates of a recipient party and all directors, officers, employees, agents and representatives of a recipient party\nor its affiliates shall be included within the definition of the term “recipient party” for purposes of this Agreement and shall be bound by the terms\nand conditions of this Agreement. The recipient party shall be responsible for any breaches of this Agreement by any of its affiliates and any\ndirectors, officers, employees, agents and representatives of such recipient party or its affiliates.\n3. No Solicitation. For a period of one year from the date of this Agreement, neither party will directly solicit the employment of any officer or\nemployee of the other party or its affiliates without the prior written consent of such other party.\n4. Return of Confidential Information. A recipient party shall, upon accomplishing the limited purpose of evaluating the Transaction, or at any time\nupon the written request of the other party, immediately return to the other party all Confidential Information (including notes, writings and other\nmaterial developed therefrom by the recipient party) and all copies thereof and retain none for its files. Notwithstanding such return, both parties\nshall continue to be bound by this Agreement.\n5. No Representations or Warranties. The Confidential Information is being provided under this Agreement “as is” and without any representation or\nwarranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the Confidential Information. In no event\nshall either party or its affiliates or any of their respective directors, officers, employees, agents or representatives (including, without limitation,\nRBCCM) have any liability to other party relating to or arising out of any use of the Confidential Information in accordance with this Agreement.\n6. Indemnification. Each party shall indemnify and hold harmless the other party and its affiliates and their respective directors, officers, employees,\nagents and representatives from and against any and all losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees\nand expenses) caused by or arising out of any direct breach of this Agreement or any direct breach for it is responsible hereunder, and any and all\nactions, suits, proceedings, claims, demands or judgments incident thereto.\n7. Equitable Remedies. Both parties hereby agree that their failure to perform any obligation or duty which they have agreed to perform under this\nAgreement may cause irreparable harm to the other party, which harm cannot be adequately compensated for by money damages. It is further agreed\nby both parties that an order of specific performance or for injunctive relief against the recipient party in the event of a breach or default under the\nterms of this Agreement would be equitable and would not work a hardship on the recipient party. Accordingly, in the event of a breach or default by\neither party hereunder, the non-defaulting party, without any bond or other security being required and in addition to whatever other remedies are or\nmight be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against, the other\nparty, with respect to any obligation or duty herein or breach thereof.\n8. No Licenses Granted. Neither party grants any licenses, by implication or otherwise, under any patent, copyright, trademark, trade secret or other\nrights by disclosing Confidential Information under this Agreement.\n9. Definitive Agreement. The Company and Exar understand and agree that no contract or agreement providing for any transaction involving the\nCompany or Exar shall be deemed to exist between Exar and the Company unless and until a final definitive agreement has been executed and\ndelivered, and the Company and Exar hereby waive in advance, any claims (including, without limitation, breach of contract) in connection with any\nsuch transaction unless and until Exar and the Company shall have entered into a final definitive agreement. The Company and Exar also agree that\nunless and until a final definitive agreement between Exar and the Company has been executed and delivered, neither Exar nor the Company will be\nunder any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the matters specifically\nagreed to herein. Both parties reserve the right, in their sole discretion, to reject any and all proposals made by the other party and to terminate\ndiscussions and negotiations with respect to a Transaction at any time. Both parties further understand that (i) either party shall be free to conduct\nany process for any transaction involving the Company or Exar, if and as such party in its sole discretion shall determine (including, without\nlimitation, negotiating with any other interested party and entering into a definitive agreement without prior notice to the other or any other person),\n(ii) any procedures relating to such process or transaction may be changed at any time in either party’s sole discretion without notice to the other or\nany other person, and (iii) neither party shall have any claims whatsoever against the other or any of its agents or representatives (including, without\nlimitation, RBCCM) arising out of or relating to any transaction involving the Company and Exar (other than any claims against the parties to a\ndefinitive agreement in accordance with the terms thereof) nor, unless a definitive agreement is entered into, against any third party with whom a\ntransaction is entered into.\n10. Standstill. Each of the Company and Exar hereby covenant and agree that, for a period of six months from the date of this Agreement, without\nthe prior written consent of the other party, which shall not be unreasonably withheld, it will not in any manner, directly or indirectly, or in\nconjunction with any other person or entity, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any\nacquisition of any securities (or beneficial ownership thereof) or assets of the other party, (ii) any tender or exchange offer, merger or other business\ncombination involving the other party, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect\nto the other party, or (iv) any “solicitation” of “proxies™ (as such terms are defined in Rule 14a-1\nunder the Securities Exchange Act of 1934) or consents to vote any securities of the other party; (b) form, join or in any way participate in a “group”\n(as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934) or otherwise act, alone or with others, to seek to acquire or affect\ncontrol or influence the management, board of directors or policies of the other party; (c) enter into any discussions or arrangements with any third\nparty regarding any of the foregoing; or (d) take any action which might force the other party to make a public announcement regarding any of the\nforegoing. Each of the Company and Exar further convenant and agree that, without the prior written consent of the other party, it will not directly or\nindirectly, enter into any agreement, arrangement or understanding, with any other person or entity regarding a possible transaction involving such\nother party of the type and for the term described above.\n11. Notices. Any notices to be given by either party to the other will be sufficiently given if delivered personally or transmitted by facsimile or if sent\nby registered mail, postage prepaid, to the parties at their respective addresses set out below, or to any other addresses as the parties may notify to the\nother from time to time in writing. This notice will be deemed to have been given at the time of delivery, if delivered in person or transmitted by\nfacsimile, or within three business days from the date of posting if sent by registered mail.\nIf to Hifn, Inc.:\n750 University Avenue\nLos Gatos, CA 95031\nAttention: Bill Walker, Chief Financial Officer\nFacsimile: (408) 399-3509\nIf to Exar Corporation:\n48720 Kato Road\nFremont, CA 94538\nAttention: Law Department\nFacsimile: 510-668-7002\n12. Trading in Securities. Both parties acknowledge that they are aware, and agree to advise their directors, officers, employees, agents and\nrepresentatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person\nwho has material, non-public information concerning the Transaction from purchasing or selling securities of a company that may be a party to such\nTransaction or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nis likely to purchase or sell such securities.\n13. Privileged Information and Work Product. To the extent any Confidential Information may include materials subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Exar\nand the Company understand and agree that they both have a commonality of interest with respect to such matters and it is both our desire, intention\nand mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and their respective\nsuccessors and assigns, however, neither party\nshall have the right to assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party;\nprovided, however, that a successor in interest to a party by merger, by operation of law, or by assignment, purchase, or otherwise, of the entire\nbusiness of either party shall acquire all the rights and be subject to all the obligations of such party hereunder, without the necessity of obtaining\nsuch prior written consent; provided, however, that nothing herein shall prevent either party from assigning all of its rights and obligations under this\nAgreement to a subsidiary of that party upon written notice to the other party. This Agreement constitutes the complete agreement between the\nparties hereto with respect to the subject matter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties\nhereto. The section headings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of\nCalifornia, without giving effect to the principles of conflicts of law thereof, and each party consents to personal jurisdiction in such state and\nvoluntarily submits to the jurisdiction of the courts of such state in any action or proceeding relating to this Agreement. Whenever possible, each\nprovision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof is held\nto be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of\nsuch invalidity, illegality, or unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or\namended and no provision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or\ndefault of the same or similar nature. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original,\nbut all of which taken together shall constitute one and the same instrument.\n15.  Term. This Agreement shall remain in full force and effect for one year from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nHifn, Inc. Exar Corporation\nBy /s/ William R. Walker By /s/ Pedro P. Rodriguez\nTitle Chief Financial Officer Title President and Chief Executive Officer	EX-99.(E)(8) 3 dex99e8.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit (e)(8)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-disclosure Agreement (the "Agreement") is made and entered into effective as of September 10, 2008, by and\nbetween Hifn, Inc. (the "Company."), and Exar Corporation ("Exar"). In consideration of the mutual covenants and conditions contained herein, to\ninduce the parties hereto to provide certain information to each other and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the parties to this Agreement do hereby agree as follows:\n1. Definition of Confidential Information. For all purposes of this Agreement, the term "Confidential Information" shall collectively refer to all non-\npublic information or material disclosed or provided by one party to the other, either orally or in writing, or obtained by the recipient party from\na\nthird party or any other source, concerning any aspect of the business or affairs of the other party or its "affiliates" (as such term is defined in Rule\n12b-2 under the Securities Exchange Act of 1934), including without limitation, any information or material pertaining to products, formulae,\nspecifications, designs, processes, plans, policies, procedures, employees, work conditions, legal and regulatory affairs, assets, inventory,\ndiscoveries, trademarks, patents, manufacturing, packaging, distribution, sales, marketing, expenses, financial statements and data, customer and\nsupplier lists, raw materials, costs of goods and relationships with third parties. Confidential Information also includes any notes, analyses,\ncompilations, studies or other material or documents prepared by the recipient party which contain, reflect or are based, in whole or in part, on the\nConfidential Information.\nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly\navailable through no action or fault of the recipient party, (ii) was already in the recipient party's possession or known to the recipient party prior to\nbeing disclosed or provided to the recipient party by or on behalf of the other party, provided, that, the source of such information or material was\nnot bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing party or any other party with respect thereto,\n(iii) was or is obtained by the recipient party from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary\nobligation of confidentiality to the non-disclosing party or any other party with respect to such information or material, or (iv) is independently\ndeveloped by the recipient party without reference to the Confidential Information.\n2.\nRestrictions on Disclosure and Use. The Company and Exar do hereby covenant and agree with each other as follows:\n2.1 Non-disclosure. Both parties shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to any person or\nentity, (i) any information about the potential sale of all or a portion of all of the assets or equity securities of the Company (the "Transaction") or the\nfact\nthat\neither party has received the Confidential Information and is considering the Transaction and all discussions between the Company and Exar\nrelated thereto, except that both parties may make such disclosure if it has received the reasonable advice of its outside counsel that such disclosure\nmust be made in order that such party not commit a violation of law, and (ii) the Confidential Information, except to those officers, employees or\nother authorized agents and representatives and professional consultants of such party to whom disclosure is reasonably necessary in connection with\nthe Transaction and who shall agree to be bound by the terms of this Agreement, and except as otherwise consented to in writing by the non-\ndisclosing party. Both parties shall take all actions reasonably necessary to ensure that the Confidential Information remains strictly confidential\nand\nis\nnot\ndisclosed\nto\nor\nseen,\nused\nor\nobtained\nby\nany\nperson\nor\nentity\nexcept\nin\naccordance\nwith\nthe\nterms\nof\nthis\nAgreement.\nBoth\nparties\nagree\nnot\nto\ncontact any employees, customers, or suppliers of the other party or its affiliates with respect to the Transaction or for the purpose of obtaining\ninformation for use in evaluating the Transaction, without the other party's prior written consent. Exar further agrees that all inquiries, requests for\ninformation and other communications concerning the Transaction shall be made only through RBC Capital Markets Corporation ("RBCCM")\nunless otherwise advised or permitted by Company.\nIn the event that either party is requested or required (by oral questions, interrogatories, requests for information or documents in legal\nproceedings, subpoena, civil investigative demand or other similar process or by any law, rule or regulation of any governmental agency or\nregulatory authority) to disclose any of the Confidential Information, such party shall provide the other party with prompt written notice of any such\nrequest or requirement so that such other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver, and if one party is nonetheless, legally\ncompelled to disclose Confidential Information, such party may, without liability hereunder, disclose to such tribunal only that portion of the\nConfidential Information which such counsel advises it is legally required to be disclosed, provided that such party shall use its best efforts to\npreserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the other party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be afforded the Confidential Information by such tribunal.\n2.2 Ownership. All Confidential Information of a party shall remain the exclusive property of such party, and no right, title or interest in\nor\nto\nany of the Confidential Information or any material developed therefrom is transferred to the recipient party hereby or by its delivery to the recipient\nparty hereunder.\n2.3 Use. The recipient party shall use or cause the Confidentia Information to be used only to evaluate the Transaction and in a manner\nconsistent with the terms and conditions of this Agreement and at no time shall the recipient party otherwise use the Confidential Information for the\nbenefit of itself or any other third party or in any manner adverse to, or to the detriment of, the disclosing party or its affiliates or their respective\nshareholders.\n2.4 Other Parties Bound. All affiliates of a recipient party and all directors, officers, employees, agents and representatives of a recipient party\nor\nits\naffiliates\nshall\nbe\nincluded\nwithin\nthe\ndefinition\nof\nthe\nterm\n"recipientparty\nfor\npurposes\nof\nthis\nAgreement\nand\nshall\nbe\nbound\nby\nthe\nterms\nand conditions of this Agreement. The recipient party shall be responsible for any breaches of this Agreement by any of its affiliates and\nany\ndirectors, officers, employees, agents and representatives of such recipient party or its affiliates.\n3. No Solicitation. For a period of one year from the date of this Agreement, neither party will directly solicit the employment of any officer\nor\nemployee of the other party or its affiliates without the prior written consent of such other party.\n4.\nReturn of Confidential Information. A recipient party shall, upon accomplishing the limited purpose of evaluating the Transaction, or at any time\nupon the written request of the other party, immediately return to the other party all Confidential Information (including notes, writings and other\nmaterial developed therefrom by the recipient party) and all copies thereof and retain none for its files. Notwithstanding such return, both parties\nshall continue to be bound by this Agreement.\n5.\nNo Representations or Warranties. The Confidential Information is being provided under this Agreement "as is" and without any representation or\nwarranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the Confidential Information. In no event\nshall either party or its affiliates or any of their respective directors, officers, employees, agents or representatives (including, without limitation,\nRBCCM) have any liability to other party relating to or arising out of any use of the Confidential Information in accordance with this Agreement.\n6. Indemnification. Each party shall indemnify and hold harmless the other party and its affiliates and their respective directors, officers, employees,\nagents and representatives from and against any and all losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees\nand expenses) caused by or arising out of any direct breach of this Agreement or any direct breach for it is responsible hereunder, and any and\nall\nactions, suits, proceedings, claims, demands or judgments incident thereto.\n7.\nEquitable\nRemedies. Both parties hereby agree that their failure to perform any obligation or duty which they have agreed to perform under this\nAgreement may cause irreparable harm to the other party, which harm cannot be adequately compensated for by money damages. It is further agreed\nby both parties that an order of specific performance or for injunctive relief against the recipient party in the event of a breach or default under the\nterms of this Agreement would be equitable and would not work a hardship on the recipient party. Accordingly, in the event of a breach or default\nby\neither party hereunder, the non-defaulting party, without any bond or other security being required and in addition to whatever other remedies are or\nmight be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against, the other\nparty, with respect to any obligation or duty herein or breach thereof.\n8. No Licenses Granted. Neither party grants any licenses, by implication or otherwise, under any patent, copyright, trademark, trade secret or other\nrights by disclosing Confidential Information under this Agreement.\n9. Definitive Agreement. The Company and Exar understand and agree that no contract or agreement providing for any transaction involving the\nCompany or Exar shall be deemed to exist between Exar and the Company unless and until a final definitive agreement has been executed and\ndelivered, and the Company and Exar hereby waive in advance, any claims (including, without limitation, breach of contract) in connection with any\nsuch transaction unless and until Exar and the Company shall have entered into a final definitive agreement. The Company and Exar also agree that\nunless\nand\nuntil\na\nfinal\ndefinitive\nagreement\nbetween\nExar\nand\nthe\nCompany\nhas\nbeen\nexecuted\nand\ndelivered,\nneither\nExar\nnor\nthe\nCompany\nwill\nbe\nunder any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the matters specifically\nagreed to herein. Both parties reserve the right, in their sole discretion, to reject any and all proposals made by the other party and to terminate\ndiscussions and negotiations with respect to a Transaction at any time. Both parties further understand that (i) either party shall be free to conduct\nany process for any transaction involving the Company or Exar, if and as such party in its sole discretion shall determine (including, without\nlimitation, negotiating with any other interested party and entering into a definitive agreement without prior notice to the other or any other person),\n(ii) any procedures relating to such process or transaction may be changed at any time in either party's sole discretion without notice to the other or\nany other person, and (iii) neither party shall have any claims whatsoever against the other or any of its agents or representatives (including, without\nlimitation, RBCCM) arising out of or relating to any transaction involving the Company and Exar (other than any claims against the parties to a\ndefinitive agreement in accordance with the terms thereof) nor, unless a definitive agreement is entered into, against any third party with whom\na\ntransaction is entered into.\n10. Standstill. Each of the Company and Exar hereby covenant and agree that, for a period of six months from the date of this Agreement, without\nthe prior written consent of the other party, which shall not be unreasonably withheld, it will not in any manner, directly or indirectly, or in\nconjunction with any other person or entity, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any\nacquisition of any securities (or beneficial ownership thereof) or assets of the other party, (ii) any tender or exchange offer, merger or other business\ncombination involving the other party, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect\nto the other party, or (iv) any "solicitation" of "proxies" (as such terms are defined in Rule 14a-1\nunder the Securities Exchange Act of 1934) or consents to vote any securities of the other party; (b) form, join or in any way participate in a "group"\n(as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934) or otherwise act, alone or with others, to seek to acquire or affect\ncontrol or influence the management, board of directors or policies of the other party; (c) enter into any discussions or arrangements with any third\nparty regarding any of the foregoing; or (d) take any action which might force the other party to make a public announcement regarding any of the\nforegoing. Each of the Company and Exar further convenant and agree that, without the prior written consent of the other party, it will not directly or\nindirectly, enter into any agreement, arrangement or understanding, with any other person or entity regarding a possible transaction involving\nsuch\nother party of the type and for the term described above.\n11. Notices. Any notices to be given by either party to the other will be sufficiently given if delivered personally or transmitted by facsimile or if sent\nby registered mail, postage prepaid, to the parties at their respective addresses set out below, or to any other addresses as the parties may notify to the\nother from time to time in writing. This notice will be deemed to have been given at the time of delivery, if delivered in person or transmitted by\nfacsimile, or within three business days from the date of posting if sent by registered mail.\nIf to Hifn, Inc.:\n750 University Avenue\nLos Gatos, CA 95031\nAttention: Bill Walker, Chief Financial Officer\nFacsimile: (408) 399-3509\nIf to Exar Corporation:\n48720 Kato Road\nFremont, CA 94538\nAttention: Law Department\nFacsimile: 510-668-7002\n12. Trading in Securities. Both parties acknowledge that they are aware, and agree to advise their directors, officers, employees, agents and\nrepresentatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person\nwho has material, non-public information concerning the Transaction from purchasing or selling securities of a company that may be a party to such\nTransaction or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nis likely to purchase or sell such securities.\n13. Privileged Information and Work Product. To the extent any Confidential Information may include materials subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Exar\nand the Company understand and agree that they both have a commonality of interest with respect to such matters and it is both our desire, intention\nand mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and their respective\nsuccessors and assigns, however, neither party\nshall have the right to assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party;\nprovided, however, that a successor in interest to a party by merger, by operation of law, or by assignment, purchase, or otherwise, of the entire\nbusiness of either party shall acquire all the rights and be subject to all the obligations of such party hereunder, without the necessity of obtaining\nsuch prior written consent; provided, however, that nothing herein shall prevent either party from assigning all of its rights and obligations under this\nAgreement to a subsidiary of that party upon written notice to the other party. This Agreement constitutes the complete agreement between the\nparties hereto with respect to the subject matter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties\nhereto. The section headings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of\nCalifornia, without giving effect to the principles of conflicts of law thereof, and each party consents to personal jurisdiction in such state and\nvoluntarily submits to the jurisdiction of the courts of such state in any action or proceeding relating to this Agreement. Whenever possible, each\nprovision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof is held\nto be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent\nof\nsuch invalidity, illegality, or unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or\namended and no provision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach\nor\ndefault of the same or similar nature. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original,\nbut all of which taken together shall constitute one and the same instrument.\n15.\nTerm. This Agreement shall remain in full force and effect for one year from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nHifn, Inc.\nExar Corporation\nBy\n/s/ William R. Walker\nBy /s/ Pedro P. Rodriguez\nTitle Chief Financial Officer\nTitle President and Chief Executive Officer	EX-99.(E)(8) 3 dex99e8.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit (e)(8)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of September 10, 2008, by and\nbetween Hifn, Inc. (the “Company”), and Exar Corporation (“Exar”). In consideration of the mutual covenants and conditions contained herein, to\ninduce the parties hereto to provide certain information to each other and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the parties to this Agreement do hereby agree as follows:\n1. Definition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall collectively refer to all non-\npublic information or material disclosed or provided by one party to the other, either orally or in writing, or obtained by the recipient party from a\nthird party or any other source, concerning any aspect of the business or affairs of the other party or its “affiliates” (as such term is defined in Rule\n12b-2 under the Securities Exchange Act of 1934), including without limitation, any information or material pertaining to products, formulae,\nspecifications, designs, processes, plans, policies, procedures, employees, work conditions, legal and regulatory affairs, assets, inventory,\ndiscoveries, trademarks, patents, manufacturing, packaging, distribution, sales, marketing, expenses, financial statements and data, customer and\nsupplier lists, raw materials, costs of goods and relationships with third parties. Confidential Information also includes any notes, analyses,\ncompilations, studies or other material or documents prepared by the recipient party which contain, reflect or are based, in whole or in part, on the\nConfidential Information.\nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly\navailable through no action or fault of the recipient party, (ii) was already in the recipient party’s possession or known to the recipient party prior to\nbeing disclosed or provided to the recipient party by or on behalf of the other party, provided, that, the source of such information or material was\nnot bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing party or any other party with respect thereto,\n(iii) was or is obtained by the recipient party from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary\nobligation of confidentiality to the non-disclosing party or any other party with respect to such information or material, or (iv) is independently\ndeveloped by the recipient party without reference to the Confidential Information.\n2. Restrictions on Disclosure and Use. The Company and Exar do hereby covenant and agree with each other as follows:\n2.1 Non-disclosure. Both parties shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to any person or\nentity, (i) any information about the potential sale of all or a portion of all of the assets or equity securities of the Company (the “Transaction”) or the\nfact that either party has received the Confidential Information and is considering the Transaction and all discussions between the Company and Exar\nrelated thereto, except that both parties may make such disclosure if it has received the reasonable advice of its outside counsel that such disclosure\nmust be made in order that such party not commit a violation of law, and (ii) the Confidential Information, except to those officers, employees or\nother authorized agents and representatives and professional consultants of such party to whom disclosure is reasonably necessary in connection with\nthe Transaction and who shall agree to be bound by the terms of this Agreement, and except as otherwise consented to in writing by the non-\ndisclosing party. Both parties shall take all actions reasonably necessary to ensure that the Confidential Information remains strictly confidential and\nis not disclosed to or seen, used or obtained by any person or entity except in accordance with the terms of this Agreement. Both parties agree not to\ncontact any employees, customers, or suppliers of the other party or its affiliates with respect to the Transaction or for the purpose of obtaining\ninformation for use in evaluating the Transaction, without the other party’s prior written consent. Exar further agrees that all inquiries, requests for\ninformation and other communications concerning the Transaction shall be made only through RBC Capital Markets Corporation (“RBCCM”)\nunless otherwise advised or permitted by Company.\nIn the event that either party is requested or required (by oral questions, interrogatories, requests for information or documents in legal\nproceedings, subpoena, civil investigative demand or other similar process or by any law, rule or regulation of any governmental agency or\nregulatory authority) to disclose any of the Confidential Information, such party shall provide the other party with prompt written notice of any such\nrequest or requirement so that such other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver, and if one party is nonetheless, legally\ncompelled to disclose Confidential Information, such party may, without liability hereunder, disclose to such tribunal only that portion of the\nConfidential Information which such counsel advises it is legally required to be disclosed, provided that such party shall use its best efforts to\npreserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the other party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be afforded the Confidential Information by such tribunal.\n2.2 Ownership. All Confidential Information of a party shall remain the exclusive property of such party, and no right, title or interest in or to\nany of the Confidential Information or any material developed therefrom is transferred to the recipient party hereby or by its delivery to the recipient\nparty hereunder.\n2.3 Use. The recipient party shall use or cause the Confidential Information to be used only to evaluate the Transaction and in a manner\nconsistent with the terms and conditions of this Agreement and at no time shall the recipient party otherwise use the Confidential Information for the\nbenefit of itself or any other third party or in any manner adverse to, or to the detriment of, the disclosing party or its affiliates or their respective\nshareholders.\n2.4 Other Parties Bound. All affiliates of a recipient party and all directors, officers, employees, agents and representatives of a recipient party\nor its affiliates shall be included within the definition of the term “recipient party” for purposes of this Agreement and shall be bound by the terms\nand conditions of this Agreement. The recipient party shall be responsible for any breaches of this Agreement by any of its affiliates and any\ndirectors, officers, employees, agents and representatives of such recipient party or its affiliates.\n3. No Solicitation. For a period of one year from the date of this Agreement, neither party will directly solicit the employment of any officer or\nemployee of the other party or its affiliates without the prior written consent of such other party.\n4. Return of Confidential Information. A recipient party shall, upon accomplishing the limited purpose of evaluating the Transaction, or at any time\nupon the written request of the other party, immediately return to the other party all Confidential Information (including notes, writings and other\nmaterial developed therefrom by the recipient party) and all copies thereof and retain none for its files. Notwithstanding such return, both parties\nshall continue to be bound by this Agreement.\n5. No Representations or Warranties. The Confidential Information is being provided under this Agreement “as is” and without any representation or\nwarranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the Confidential Information. In no event\nshall either party or its affiliates or any of their respective directors, officers, employees, agents or representatives (including, without limitation,\nRBCCM) have any liability to other party relating to or arising out of any use of the Confidential Information in accordance with this Agreement.\n6. Indemnification. Each party shall indemnify and hold harmless the other party and its affiliates and their respective directors, officers, employees,\nagents and representatives from and against any and all losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees\nand expenses) caused by or arising out of any direct breach of this Agreement or any direct breach for it is responsible hereunder, and any and all\nactions, suits, proceedings, claims, demands or judgments incident thereto.\n7. Equitable Remedies. Both parties hereby agree that their failure to perform any obligation or duty which they have agreed to perform under this\nAgreement may cause irreparable harm to the other party, which harm cannot be adequately compensated for by money damages. It is further agreed\nby both parties that an order of specific performance or for injunctive relief against the recipient party in the event of a breach or default under the\nterms of this Agreement would be equitable and would not work a hardship on the recipient party. Accordingly, in the event of a breach or default by\neither party hereunder, the non-defaulting party, without any bond or other security being required and in addition to whatever other remedies are or\nmight be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against, the other\nparty, with respect to any obligation or duty herein or breach thereof.\n8. No Licenses Granted. Neither party grants any licenses, by implication or otherwise, under any patent, copyright, trademark, trade secret or other\nrights by disclosing Confidential Information under this Agreement.\n9. Definitive Agreement. The Company and Exar understand and agree that no contract or agreement providing for any transaction involving the\nCompany or Exar shall be deemed to exist between Exar and the Company unless and until a final definitive agreement has been executed and\ndelivered, and the Company and Exar hereby waive in advance, any claims (including, without limitation, breach of contract) in connection with any\nsuch transaction unless and until Exar and the Company shall have entered into a final definitive agreement. The Company and Exar also agree that\nunless and until a final definitive agreement between Exar and the Company has been executed and delivered, neither Exar nor the Company will be\nunder any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the matters specifically\nagreed to herein. Both parties reserve the right, in their sole discretion, to reject any and all proposals made by the other party and to terminate\ndiscussions and negotiations with respect to a Transaction at any time. Both parties further understand that (i) either party shall be free to conduct\nany process for any transaction involving the Company or Exar, if and as such party in its sole discretion shall determine (including, without\nlimitation, negotiating with any other interested party and entering into a definitive agreement without prior notice to the other or any other person),\n(ii) any procedures relating to such process or transaction may be changed at any time in either party’s sole discretion without notice to the other or\nany other person, and (iii) neither party shall have any claims whatsoever against the other or any of its agents or representatives (including, without\nlimitation, RBCCM) arising out of or relating to any transaction involving the Company and Exar (other than any claims against the parties to a\ndefinitive agreement in accordance with the terms thereof) nor, unless a definitive agreement is entered into, against any third party with whom a\ntransaction is entered into.\n10. Standstill. Each of the Company and Exar hereby covenant and agree that, for a period of six months from the date of this Agreement, without\nthe prior written consent of the other party, which shall not be unreasonably withheld, it will not in any manner, directly or indirectly, or in\nconjunction with any other person or entity, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any\nacquisition of any securities (or beneficial ownership thereof) or assets of the other party, (ii) any tender or exchange offer, merger or other business\ncombination involving the other party, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect\nto the other party, or (iv) any “solicitation” of “proxies” (as such terms are defined in Rule 14a-1\nunder the Securities Exchange Act of 1934) or consents to vote any securities of the other party; (b) form, join or in any way participate in a “group”\n(as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934) or otherwise act, alone or with others, to seek to acquire or affect\ncontrol or influence the management, board of directors or policies of the other party; (c) enter into any discussions or arrangements with any third\nparty regarding any of the foregoing; or (d) take any action which might force the other party to make a public announcement regarding any of the\nforegoing. Each of the Company and Exar further convenant and agree that, without the prior written consent of the other party, it will not directly or\nindirectly, enter into any agreement, arrangement or understanding, with any other person or entity regarding a possible transaction involving such\nother party of the type and for the term described above.\n11. Notices. Any notices to be given by either party to the other will be sufficiently given if delivered personally or transmitted by facsimile or if sent\nby registered mail, postage prepaid, to the parties at their respective addresses set out below, or to any other addresses as the parties may notify to the\nother from time to time in writing. This notice will be deemed to have been given at the time of delivery, if delivered in person or transmitted by\nfacsimile, or within three business days from the date of posting if sent by registered mail.\nIf to Hifn, Inc.:\n750 University Avenue\nLos Gatos, CA 95031\nAttention: Bill Walker, Chief Financial Officer\nFacsimile: (408) 399-3509\nIf to Exar Corporation:\n48720 Kato Road\nFremont, CA 94538\nAttention: Law Department\nFacsimile: 510-668-7002\n12. Trading in Securities. Both parties acknowledge that they are aware, and agree to advise their directors, officers, employees, agents and\nrepresentatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person\nwho has material, non-public information concerning the Transaction from purchasing or selling securities of a company that may be a party to such\nTransaction or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nis likely to purchase or sell such securities.\n13. Privileged Information and Work Product. To the extent any Confidential Information may include materials subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Exar\nand the Company understand and agree that they both have a commonality of interest with respect to such matters and it is both our desire, intention\nand mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and their respective\nsuccessors and assigns, however, neither party\nshall have the right to assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party;\nprovided, however, that a successor in interest to a party by merger, by operation of law, or by assignment, purchase, or otherwise, of the entire\nbusiness of either party shall acquire all the rights and be subject to all the obligations of such party hereunder, without the necessity of obtaining\nsuch prior written consent; provided, however, that nothing herein shall prevent either party from assigning all of its rights and obligations under this\nAgreement to a subsidiary of that party upon written notice to the other party. This Agreement constitutes the complete agreement between the\nparties hereto with respect to the subject matter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties\nhereto. The section headings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of\nCalifornia, without giving effect to the principles of conflicts of law thereof, and each party consents to personal jurisdiction in such state and\nvoluntarily submits to the jurisdiction of the courts of such state in any action or proceeding relating to this Agreement. Whenever possible, each\nprovision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof is held\nto be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of\nsuch invalidity, illegality, or unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or\namended and no provision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or\ndefault of the same or similar nature. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original,\nbut all of which taken together shall constitute one and the same instrument.\n15. Term. This Agreement shall remain in full force and effect for one year from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nHifn, Inc.\nExar Corporation\nBy /s/ William R. Walker\nBy /s/ Pedro P. Rodriguez\nTitle Chief Financial Officer\nTitle President and Chief Executive Officer
968fde7b3c8de1908029eab706e963e9.pdf	effective_date jurisdiction party term	EX-10.5 4 dex105.htm CONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY\nAGREEMENT\nEXHIBIT 10.5\nCONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”), dated as\nof February 28, 2006 (the “Effective Date”), among Gentiva Health Services, Inc., a Delaware corporation (“Gentiva”; together with all subsidiaries\nof Gentiva, “Parent”), The Healthfield Group, Inc., a Delaware corporation (“Healthfield”; together with all subsidiaries of Healthfield, the\n“Healthfield Group”), (together with the Parent and the Healthfield Group, the “Companies”) and Tony Strange (“Executive”).\nWHEREAS, the Companies are currently engaged in the business of, among other things, providing comprehensive home health care\nservices.\nWHEREAS, Tara Acquisition Sub Corp., a wholly owned subsidiary of Gentiva, has merged with and into Healthfield (the “Merger”).\nWHEREAS, Executive had an employment agreement with the Healthfield Group (the “Old Employment Agreement”), which\nExecutive acknowledges has been terminated as of the date hereof, and Executive has a letter severance agreement with the Companies dated the\ndate hereof (the “Letter Agreement”). In such role, Executive will receive or has received specific confidential information relating to the businesses\nof the Companies, which confidential information is or was necessary to enable Executive to perform Executive’s duties. Executive will play or has\nplayed a significant role in the development and management of the businesses of the Companies and has been or will be entrusted with the\nCompanies’ confidential information relating to the Companies’ customers, manufacturers, distributors and others.\nWHEREAS, Executive is a holder of Healthfield preferred stock and Healthfield common stock and is receiving significant\nconsideration as a result of the Merger.\nWHEREAS, it is a condition to the closing of the Merger that Executive enter into this Agreement.\nNOW, THEREFORE, it is mutually agreed as follows:\n1. Confidentiality.\n(a) Executive shall not, during the term of any employment with the Companies or at any time thereafter, directly or indirectly, divulge,\nuse, furnish, disclose, exploit or make available to any person or entity, whether or not a competitor of the Companies, any Unauthorized disclosure\nof Confidential Information. In the event that Executive is requested or required (by deposition, interrogatories, requests for information or\ndocuments in legal proceedings, subpoenas, civil demand or similar process) to disclose any Confidential Information, Executive will give the\nCompanies prompt written notice of such request or requirement so that the Companies may seek an appropriate protective order or other remedy\nand/or waive compliance with the provisions of this Agreement, and Executive will cooperate with the Companies’ efforts to obtain such protective\norder. In the event that such protective order or other remedy is not obtained or the Companies waive compliance with the relevant provisions of this\nAgreement, Executive is permitted to furnish that Confidential Information which is legally required to be disclosed and will use his reasonable\nefforts to obtain assurances that confidential treatment will be accorded to such information.\nAs used herein, the term:\n“Confidential Information” shall mean trade secrets, confidential or proprietary information, and all other information, documents or\nmaterials, relating to, owned, developed or possessed by any of the Companies, whether in tangible or intangible form. Confidential Information\nincludes, but is not limited to, (i) financial information, (ii) products, (iii) product and service costs, prices, profits and sales, (iv) new business,\ntechnical or other ideas, proposals, plans and designs, (v) business strategies, (vi) product and service plans, (vii) marketing plans and studies,\n(viii) forecasts, (ix) budgets, (x) projections, (xi) computer programs, (xii) data bases and the documentation (and information contained therein),\n(xiii) computer access codes and similar information, (xiv) source codes, (xv) know-how, technologies, concepts and designs, including, without\nlimitation, patent applications, (xvi) research projects and all information connected with research and development efforts, (xvii) records,\n(xviii) business methods and recommendations, (xix) existing or prospective client, customer, vendor and supplier information (including, but not\nlimited to, identities, needs, transaction histories, volumes, characteristics, agreements, prices, identities of individual contacts, and spending,\npreferences or habits), (xx) training manuals and similar materials used by the Companies in conducting its business operations, (xxi) personnel files\nof employees, directors and independent contractors of any of the Companies, (xxii) competitive analyses, (xxiii) contracts with other parties,\n(xxiv) product formulations, and (xxv) other confidential or proprietary information that has not been made available to the trade or general public\nby any of the Companies. Confidential Information shall not include any information that (A) is or becomes generally available to the public or the\ntrade other than as a result of a disclosure by the Executive in violation of this Agreement or (B) becomes available to the Executive on a non-\nconfidential basis from a source other than the Companies which is not prohibited from disclosing such information to the Executive by a legal,\ncontractual or fiduciary obligation to the Employer or any other Person.\n“Unauthorized” shall mean: (i) in contravention of the policies or procedures of any of the Companies; (ii) otherwise inconsistent with\nany measures taken by any of the Companies to protect its interests in the Confidential Information; (iii) in contravention of any lawful instruction or\ndirective, either written or oral, of the board of directors, or an officer or employee of any of the Companies empowered to issue such instruction or\ndirective; (iv) in contravention of any duty existing under law or contract; or (v) to the detriment of any of the Companies; but shall not include any\ndisclosure which is customary in the normal course of business in the trade and consistent with the past practice of the Companies.\n(b) Executive further agrees to take all reasonable measures to prevent unauthorized persons or entities from obtaining or using\nConfidential Information. Promptly upon termination, for any reason, of Executive’s employment with the Companies, Executive agrees to deliver to\nthe Companies all property and materials within Executive’s possession or control which belong to any of the Companies or which contain\nConfidential Information.\n(c) Nothing in this Section 1 is intended to preclude Executive from using his general knowledge and know-how regarding the\nmanagement of a health care service provider in any future employment or business venture; provided, that Executive’s use of such general\nknowledge and know-how does not violate the provisions of Section 2 hereof.\n2. Non-Competition; Non-Solicitation.\n(a) For a period of time equal to the later of the fifth anniversary of the effective date of the Merger or the second anniversary after the\ntermination of the Executive’s employment with the Companies (the “Noncompete Period”), Executive will not, directly or indirectly, engage,\nanywhere in the United States, whether such engagement be as an individual, officer, director, proprietor, consultant, employee, partner, member,\nstockholder, investor (other than solely as a holder of less than three percent (3%) of the outstanding capital stock of a corporation whose shares are\npublicly traded on a national securities exchange or through a national market system or registered pursuant to Section 12(g) of the Securities\nExchange Act of 1934, as amended), creditor, consultant, advisor, sales representative, agent or other participant, in a Restricted Business.\n(b) During the Noncompete Period, Executive shall not directly or indirectly (i) solicit, divert, or entice away any person who is an\nofficer, agent, or employee of, or consultant or advisor to, any of the Companies to accept employment or a consultancy with a third party or (ii) hire\nany current or future employees of the Companies, unless such person has not been employed by any of the Companies for not less than 12 months\n(other than, Lisa Shunnarah).\n(c) During the Noncompete Period, Executive shall not solicit or accept on behalf of yourself or anyone else any of the Companies’\ncustomers and/or clients with a view to sell or provide any product or service competitive with any product or service sold or provided or under\ndevelopment by the Companies. For the purposes of this Agreement, the term “customer” and/or “client” shall include any person or entity to whom\nthe Companies, through its offices in which you had direct or indirect oversight and managerial duties during your employment with the Companies,\nhave sold, provided or been obligated to provide, any service or product, or who has otherwise received any service or benefit from the Companies,\nwithin 24 months prior to the termination of Executive’s employment with the Companies.\n“Restricted Business” shall mean (i) the business operations operated by the Companies; (ii) home health services, including but not\nlimited to the provision of skilled nursing, rehabilitative therapy services (physical, occupational and speech therapy and social work), home health\naid care, and homemaker services to pediatric, adult, and elderly patients in their homes or places of residence; (iii) hospice care; (iv) home/durable\nmedical equipment and/or respiratory services; and (v) infusion therapy.\nNotwithstanding the foregoing, nothing in this Section 2 shall prohibit Executive from (i) owning any amount of stock in Gentiva or\nserving in any capacity as an officer, director or employee of Gentiva or (ii) making passive investments in another entity (e.g. a private equity or\ndebt fund) not controlled by Executive that makes investments, whether debt or equity, in other entities that may be engaged in a Restricted\nBusiness, provided that Executive does not directly or indirectly own or control in excess of 10% of any Restricted Business.\n3. Intellectual Property. Executive agrees that during the term of Executive’s employment with the Companies, any and all inventions,\ndiscoveries, innovations, writings, domain names, improvements, trade secrets, designs, drawings, business processes, secret\nprocesses and know-how, whether or not patentable or a copyright or trademark, which Executive may create, conceive, develop or make, either\nalone or in conjunction with others and related or in any way connected with any of the Companies, its strategic plans, products, processes, apparatus\nor business now or hereafter carried on by any of the Companies (collectively, “Inventions”), shall be fully and promptly disclosed to the Companies\nand shall be the sole and exclusive property of the Companies (as they shall determine) as against Executive or any of Executive’s assignees.\nRegardless of the status of Executive’s employment by the Companies, Executive and Executive’s heirs, assigns and representatives shall promptly\nassign to the Companies any and all right, title and interest in and to such Inventions made during the term of Executive’s employment by any of the\nCompanies. Executive represents that there are no Inventions with respect to any of the Companies conceived of, developed or made by Executive\nbefore the date of this Agreement which have not been disclosed to and assigned to the Companies.\nWhether during or after Executive’s employment with the Companies, Executive further agrees to execute and acknowledge all papers\nand to do, at the Companies’ expense, any and all other things necessary for or incident to the applying for, obtaining and maintaining of such letters\npatent, copyrights, trademarks or other intellectual property rights, as the case may be, and to execute, on request, all papers necessary to assign and\ntransfer such Inventions, copyrights, patents, patent applications and other intellectual property rights to the Companies, their successors and assigns\n(as they shall determine). In the event that the Companies are unable, after reasonable efforts and, in any event, after thirty (30) business days, to\nsecure Executive’s signature on a written assignment to the Companies, of any application for letters patent, trademark registration or to any\ncommon law or statutory copyright or other property right therein to which the Companies are entitled to ownership pursuant to this Section 3,\nwhether because of his physical or mental incapacity, or for any other reason whatsoever, Executive irrevocably designates and appoints the\nSecretary or any Assistant Secretary of the Parent as Executive’s attorney-in-fact to act on Executive’s behalf to execute and file any such\napplications and to do all lawfully permitted acts to further the prosecution or issuance of such assignments, letters patent, copyright or trademark;\nprovided, however, that the provisions of this sentence shall not apply if the Executive disputes in writing the Companies’ ownership of the\nintellectual property rights which are the subject of the proposed assignment.\n4. Non-Disparagement. Executive shall not make any false, defamatory or disparaging statements about any of the Companies or any of its\nofficers, directors and employees. No officer or director of the Parent shall make any false, defamatory or disparaging statements about the\nExecutive.\n5. No Right to Continued Employment. Nothing in this Agreement shall confer upon Executive any right to continue in the employ of the\nCompanies or shall interfere with or restrict in any way the rights of the Companies, which, subject to the terms of the Letter Agreement, are hereby\nreserved, to discharge Executive at any time for any reason whatsoever, with or without cause.\n6. No Conflicting Agreements. Executive warrants that Executive is not bound by the terms of a confidentiality agreement, non-competition or\nother agreement with a third party that would conflict with Executive’s obligations hereunder.\n7. Remedies. The period of time during which the restrictions set forth in Section 2(a) hereof will be in effect will be extended by the length of\ntime during which Executive is in breach of the terms of those provisions as finally determined by any court of competent jurisdiction.\n8. Successors and Assigns. This Agreement shall be binding upon Executive and Executive’s heirs, assigns and representatives and inure to the\nbenefit of the Companies and their successors and assigns, including without limitation any entity to which substantially all of the assets or the\nbusiness of any of the Companies are sold or transferred. The obligations of Executive are personal to Executive and shall not be assigned by\nExecutive. The Companies may assign its rights under this Agreement to any affiliate of the Companies that employs Executive.\n9. Severability. It is expressly agreed that if any restrictions set forth in this Agreement are found by any court having jurisdiction to be\nunreasonable because they are too broad in any respect, then and in each such case, the remaining provisions herein contained shall, nevertheless,\nremain effective, and this Agreement, or any portion hereof, shall be considered to be amended, so as to be considered reasonable and enforceable by\nsuch court, and the court shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any\nportion of the time period, business or geographic areas to the extent the court deems such restriction to be necessary to cause the covenants to be\nenforceable and, in such event, the covenants shall be enforced to the extent so permitted and the remaining provisions shall be unaffected thereby.\nIn such event, the parties hereto agree to execute all documents necessary to evidence such amendment so as to eliminate or modify any such\nunreasonable provision in order to carry out the intent of this Agreement insofar as possible and to render this Agreement enforceable in all respects\nas so modified. The covenants contained in this Section 9 shall be construed to extend to separate jurisdictions or subjurisdictions of the United\nStates in which the Companies, during the term of Executive’s employment, have been or are engaged in business, and to the extent that any such\ncovenant shall be illegal and/or unenforceable with respect to any jurisdiction, said covenant shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each jurisdiction being construed as severable and independent. Any covenant on Executive’s part\ncontained hereinabove, which may not be specifically enforceable, shall nevertheless, if breached, give rise to a cause of action for monetary\ndamages. The restrictive covenant provisions of this Agreement shall govern to the extent there is any conflict between their terms and the terms of\nany other agreement or understanding with the Companies.\n10. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered\npersonally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one\nBusiness Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and\nfacsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this\nprovision):\nIf to the Companies, to:\nwith a copy to:\nGentiva Health Services, Inc.\n3 Huntington Quadrangle, Suite 200S\nMelville, NY 11747-4627\nAttention: Stephen B. Paige, General Counsel\nFacsimile: (913) 814-5920\nWeil, Gotshal & Manges LLP\n767 Fifth Avenue\nNew York, NY 10153\nAttention: Jeffrey J. Weinberg, Esq.\nFacsimile: (212) 310-8007\nIf to the Executive, to:\nExecutive’s address set forth\nbeneath Executive’s\nsignature on this Agreement.\nGreenberg Traurig\nThe Forum\n3290 Northside Parkway, NW\nSuite 1400\nAtlanta, GA 30327\nAttention: Gary Snyder, Esq.\nFacsimile: (678) 553-2212\n11. Amendment. No provision of this Agreement may be modified, amended, waived or discharged in any manner except by a written\ninstrument executed by the Companies and Executive.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and\nsupersedes all prior agreements and understandings of the parties hereto, oral or written, with respect to the subject matter hereof.\n13. Waiver, etc. The failure of the Companies to enforce at any time any of the provisions of this Agreement shall not be deemed or construed\nto be a waiver of any such provision, nor in any way affect the validity of this Agreement or any provision hereof or the right of the Companies to\nenforce thereafter each and every provision of this Agreement. No waiver of any breach of any of the provisions of this Agreement by the\nCompanies shall be effective unless set forth in a written instrument executed by the Companies, and no waiver of any such breach shall be\nconstrued or deemed to be a waiver of any other or subsequent breach.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to\ncontracts made and to be wholly performed therein without reference to conflicts of law principles, except as otherwise provided.\n15. Enforcement. If any party shall institute legal action to enforce or interpret the terms and conditions of this Agreement or to collect any\nmonies under it, venue for any such action shall be the State of New York. Each party irrevocably consents to the jurisdiction of the courts located in\nthe State of New York for all suits or actions arising out of this Agreement. Each party hereto waives to the fullest extent possible, the defense of an\ninconvenient forum, and each agrees that a final judgment in any action shall be conclusive and may be enforced in other jurisdictions by suit on the\njudgment or in any other manner provided by law.\n[Next Page is Signature Page]\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day written above.\nGENTIVA HEALTH SERVICES, INC.\nBy: /s/ John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTHE HEALTHFIELD GROUP, INC.\nBy: /s/ John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTONY STRANGE\n/s/ Tony Strange\nTony Strange\n3350 Riverwood Parkway\nSuite 1400\nAtlanta, GA 30339	EX-10.5 4 dex105.htm CONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY\nAGREEMENT\nEXHIBIT 10.5\nCONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”), dated as\nof February 28, 2006 (the “Effective Date”), among Gentiva Health Services, Inc., a Delaware corporation (“Gentiva”; together with all subsidiaries\nof Gentiva, “Parent”), The Healthfield Group, Inc., a Delaware corporation (“Healthfield”; together with all subsidiaries of Healthfield, the\n“Healthfield Group”), (together with the Parent and the Healthfield Group, the “Companies”) and Tony Strange (“Executive”).\n \n \nWHEREAS, the Companies are currently engaged in the business of, among other things, providing comprehensive home health care\nservices.\nWHEREAS, Tara Acquisition Sub Corp., a wholly owned subsidiary of Gentiva, has merged with and into Healthfield (the “Merger”).\nWHEREAS, Executive had an employment agreement with the Healthfield Group (the “Old Employment Agreement”), which\nExecutive acknowledges has been terminated as of the date hereof, and Executive has a letter severance agreement with the Companies dated the\ndate hereof (the “Letter Agreement”). In such role, Executive will receive or has received specific confidential information relating to the businesses\nof the Companies, which confidential information is or was necessary to enable Executive to perform Executive’s duties. Executive will play or has\nplayed a significant role in the development and management of the businesses of the Companies and has been or will be entrusted with the\nCompanies’ confidential information relating to the Companies’ customers, manufacturers, distributors and others.\n \n \nWHEREAS, Executive is a holder of Healthfield preferred stock and Healthfield common stock and is receiving significant\nconsideration as a result of the Merger.\nWHEREAS, it is a condition to the closing of the Merger that Executive enter into this Agreement.\nNOW, THEREFORE, it is mutually agreed as follows:\n1. Confidentiality.\n(a) Executive shall not, during the term of any employment with the Companies or at any time thereafter, directly or indirectly, divulge,\nuse, furnish, disclose, exploit or make available to any person or entity, whether or not a competitor of the Companies, any Unauthorized disclosure\nof Confidential Information. In the event that Executive is requested or required (by deposition, interrogatories, requests for information or\ndocuments in legal proceedings, subpoenas, civil demand or similar process) to disclose any Confidential Information, Executive will give the\nCompanies prompt written notice of such request or requirement so that the Companies may seek an appropriate protective order or other remedy\nand/or waive compliance with the provisions of this Agreement, and Executive will cooperate with the Companies’ efforts to obtain such protective\norder. In the event that such protective order or other remedy is not obtained or the Companies waive compliance with the relevant provisions of this\nAgreement, Executive is permitted to furnish that Confidential Information which is legally required to be disclosed and will use his reasonable\nefforts to obtain assurances that confidential treatment will be accorded to such information.\nAs used herein, the term:\n“Confidential Information” shall mean trade secrets, confidential or proprietary information, and all other information, documents or\nmaterials, relating to, owned, developed or possessed by any of the Companies, whether in tangible or intangible form. Confidential Information\nincludes, but is not limited to, (i) financial information, (ii) products, (iii) product and service costs, prices, profits and sales, (iv) new business,\ntechnical or other ideas, proposals, plans and designs, (v) business strategies, (vi) product and service plans, (vii) marketing plans and studies,\n(viii) forecasts, (ix) budgets, (x) projections, (xi) computer programs, (xii) data bases and the documentation (and information contained therein),\n(xiii) computer access codes and similar information, (xiv) source codes, (xv) know-how, technologies, concepts and designs, including, without\nlimitation, patent applications, (xvi) research projects and all information connected with research and development efforts, (xvii) records,\n(xviii) business methods and recommendations, (xix) existing or prospective client, customer, vendor and supplier information (including, but not\nlimited to, identities, needs, transaction histories, volumes, characteristics, agreements, prices, identities of individual contacts, and spending,\npreferences or habits), (xx) training manuals and similar materials used by the Companies in conducting its business operations, (xxi) personnel files\nof employees, directors and independent contractors of any of the Companies, (xxii) competitive analyses, (xxiii) contracts with other parties,\n(xxiv) product formulations, and (xxv) other confidential or proprietary information that has not been made available to the trade or general public\nby any of the Companies. Confidential Information shall not include any information that (A) is or becomes generally available to the public or the\ntrade other than as a result of a disclosure by the Executive in violation of this Agreement or (B) becomes available to the Executive on a non-\nconfidential basis from a source other than the Companies which is not prohibited from disclosing such information to the Executive by a legal,\ncontractual or fiduciary obligation to the Employer or any other Person.\n“Unauthorized” shall mean: (i) in contravention of the policies or procedures of any of the Companies; (ii) otherwise inconsistent with\nany measures taken by any of the Companies to protect its interests in the Confidential Information; (iii) in contravention of any lawful instruction or\ndirective, either written or oral, of the board of directors, or an officer or employee of any of the Companies empowered to issue such instruction or\ndirective; (iv) in contravention of any duty existing under law or contract; or (v) to the detriment of any of the Companies; but shall not include any\ndisclosure which is customary in the normal course of business in the trade and consistent with the past practice of the Companies.\n(b) Executive further agrees to take all reasonable measures to prevent unauthorized persons or entities from obtaining or using\nConfidential Information. Promptly upon termination, for any reason, of Executive’s employment with the Companies, Executive agrees to deliver to\nthe Companies all property and materials within Executive’s possession or control which belong to any of the Companies or which contain\nConfidential Information.\n(c) Nothing in this Section 1 is intended to preclude Executive from using his general knowledge and know-how regarding the\nmanagement of a health care service provider in any future employment or business venture; provided, that Executive’s use of such general\nknowledge and know-how does not violate the provisions of Section 2 hereof.\n2. Non-Competition; Non-Solicitation.\n(a) For a period of time equal to the later of the fifth anniversary of the effective date of the Merger or the second anniversary after the\ntermination of the Executive’s employment with the Companies (the “Noncompete Period”), Executive will not, directly or indirectly, engage,\nanywhere in the United States, whether such engagement be as an individual, officer, director, proprietor, consultant, employee, partner, member,\nstockholder, investor (other than solely as a holder of less than three percent (3%) of the outstanding capital stock of a corporation whose shares are\npublicly traded on a national securities exchange or through a national market system or registered pursuant to Section 12(g) of the Securities\nExchange Act of 1934, as amended), creditor, consultant, advisor, sales representative, agent or other participant, in a Restricted Business.\n(b) During the Noncompete Period, Executive shall not directly or indirectly (i) solicit, divert, or entice away any person who is an\nofficer, agent, or employee of, or consultant or advisor to, any of the Companies to accept employment or a consultancy with a third party or (ii) hire\nany current or future employees of the Companies, unless such person has not been employed by any of the Companies for not less than 12 months\n(other than, Lisa Shunnarah).\n(c) During the Noncompete Period, Executive shall not solicit or accept on behalf of yourself or anyone else any of the Companies’\ncustomers and/or clients with a view to sell or provide any product or service competitive with any product or service sold or provided or under\ndevelopment by the Companies. For the purposes of this Agreement, the term “customer” and/or “client” shall include any person or entity to whom\nthe Companies, through its offices in which you had direct or indirect oversight and managerial duties during your employment with the Companies,\nhave sold, provided or been obligated to provide, any service or product, or who has otherwise received any service or benefit from the Companies,\nwithin 24 months prior to the termination of Executive’s employment with the Companies.\n“Restricted Business” shall mean (i) the business operations operated by the Companies; (ii) home health services, including but not\nlimited to the provision of skilled nursing, rehabilitative therapy services (physical, occupational and speech therapy and social work), home health\naid care, and homemaker services to pediatric, adult, and elderly patients in their homes or places of residence; (iii) hospice care; (iv) home/durable\nmedical equipment and/or respiratory services; and (v) infusion therapy.\nNotwithstanding the foregoing, nothing in this Section 2 shall prohibit Executive from (i) owning any amount of stock in Gentiva or\nserving in any capacity as an officer, director or employee of Gentiva or (ii) making passive investments in another entity (e.g. a private equity or\ndebt fund) not controlled by Executive that makes investments, whether debt or equity, in other entities that may be engaged in a Restricted\nBusiness, provided that Executive does not directly or indirectly own or control in excess of 10% of any Restricted Business.\n3. Intellectual Property. Executive agrees that during the term of Executive’s employment with the Companies, any and all inventions,\ndiscoveries, innovations, writings, domain names, improvements, trade secrets, designs, drawings, business processes, secret\nprocesses and know-how, whether or not patentable or a copyright or trademark, which Executive may create, conceive, develop or make, either\nalone or in conjunction with others and related or in any way connected with any of the Companies, its strategic plans, products, processes, apparatus\nor business now or hereafter carried on by any of the Companies (collectively, “Inventions™), shall be fully and promptly disclosed to the Companies\nand shall be the sole and exclusive property of the Companies (as they shall determine) as against Executive or any of Executive’s assignees.\nRegardless of the status of Executive’s employment by the Companies, Executive and Executive’s heirs, assigns and representatives shall promptly\nassign to the Companies any and all right, title and interest in and to such Inventions made during the term of Executive’s employment by any of the\nCompanies. Executive represents that there are no Inventions with respect to any of the Companies conceived of, developed or made by Executive\nbefore the date of this Agreement which have not been disclosed to and assigned to the Companies.\nWhether during or after Executive’s employment with the Companies, Executive further agrees to execute and acknowledge all papers\nand to do, at the Companies’ expense, any and all other things necessary for or incident to the applying for, obtaining and maintaining of such letters\npatent, copyrights, trademarks or other intellectual property rights, as the case may be, and to execute, on request, all papers necessary to assign and\ntransfer such Inventions, copyrights, patents, patent applications and other intellectual property rights to the Companies, their successors and assigns\n(as they shall determine). In the event that the Companies are unable, after reasonable efforts and, in any event, after thirty (30) business days, to\nsecure Executive’s signature on a written assignment to the Companies, of any application for letters patent, trademark registration or to any\ncommon law or statutory copyright or other property right therein to which the Companies are entitled to ownership pursuant to this Section 3,\nwhether because of his physical or mental incapacity, or for any other reason whatsoever, Executive irrevocably designates and appoints the\nSecretary or any Assistant Secretary of the Parent as Executive’s attorney-in-fact to act on Executive’s behalf to execute and file any such\napplications and to do all lawfully permitted acts to further the prosecution or issuance of such assignments, letters patent, copyright or trademark;\nprovided, however, that the provisions of this sentence shall not apply if the Executive disputes in writing the Companies’ ownership of the\nintellectual property rights which are the subject of the proposed assignment.\n4. Non-Disparagement. Executive shall not make any false, defamatory or disparaging statements about any of the Companies or any of its\nofficers, directors and employees. No officer or director of the Parent shall make any false, defamatory or disparaging statements about the\nExecutive.\n5. No Right to Continued Employment. Nothing in this Agreement shall confer upon Executive any right to continue in the employ of the\nCompanies or shall interfere with or restrict in any way the rights of the Companies, which, subject to the terms of the Letter Agreement, are hereby\nreserved, to discharge Executive at any time for any reason whatsoever, with or without cause.\n6. No Conflicting Agreements. Executive warrants that Executive is not bound by the terms of a confidentiality agreement, non-competition or\nother agreement with a third party that would conflict with Executive’s obligations hereunder.\n7. Remedies. The period of time during which the restrictions set forth in Section 2(a) hereof will be in effect will be extended by the length of\ntime during which Executive is in breach of the terms of those provisions as finally determined by any court of competent jurisdiction.\n8. Successors and Assigns. This Agreement shall be binding upon Executive and Executive’s heirs, assigns and representatives and inure to the\nbenefit of the Companies and their successors and assigns, including without limitation any entity to which substantially all of the assets or the\nbusiness of any of the Companies are sold or transferred. The obligations of Executive are personal to Executive and shall not be assigned by\nExecutive. The Companies may assign its rights under this Agreement to any affiliate of the Companies that employs Executive.\n9. Severability. It is expressly agreed that if any restrictions set forth in this Agreement are found by any court having jurisdiction to be\nunreasonable because they are too broad in any respect, then and in each such case, the remaining provisions herein contained shall, nevertheless,\nremain effective, and this Agreement, or any portion hereof, shall be considered to be amended, so as to be considered reasonable and enforceable by\nsuch court, and the court shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any\nportion of the time period, business or geographic areas to the extent the court deems such restriction to be necessary to cause the covenants to be\nenforceable and, in such event, the covenants shall be enforced to the extent so permitted and the remaining provisions shall be unaffected thereby.\nIn such event, the parties hereto agree to execute all documents necessary to evidence such amendment so as to eliminate or modify any such\nunreasonable provision in order to carry out the intent of this Agreement insofar as possible and to render this Agreement enforceable in all respects\nas so modified. The covenants contained in this Section 9 shall be construed to extend to separate jurisdictions or subjurisdictions of the United\nStates in which the Companies, during the term of Executive’s employment, have been or are engaged in business, and to the extent that any such\ncovenant shall be illegal and/or unenforceable with respect to any jurisdiction, said covenant shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each jurisdiction being construed as severable and independent. Any covenant on Executive’s part\ncontained hereinabove, which may not be specifically enforceable, shall nevertheless, if breached, give rise to a cause of action for monetary\ndamages. The restrictive covenant provisions of this Agreement shall govern to the extent there is any conflict between their terms and the terms of\nany other agreement or understanding with the Companies.\n10. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered\npersonally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one\nBusiness Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and\nfacsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this\nprovision):\nIf to the Companies, to:\nGentiva Health Services, Inc.\n3 Huntington Quadrangle, Suite 200S\nMelville, NY 11747-4627\nAttention: Stephen B. Paige, General Counsel\nFacsimile: (913) 814-5920\nIf to the Executive, to:\nExecutive’s address set forth\nbeneath Executive’s\nsignature on this Agreement.\nwith a copy to:\nWeil, Gotshal & Manges LLP\n767 Fifth Avenue\nNew York, NY 10153\nAttention: Jeffrey J. Weinberg, Esq.\nFacsimile: (212) 310-8007\nGreenberg Traurig\nThe Forum\n3290 Northside Parkway, NW\nSuite 1400\nAtlanta, GA 30327\nAttention: Gary Snyder, Esq.\nFacsimile: (678) 553-2212\n11. Amendment. No provision of this Agreement may be modified, amended, waived or discharged in any manner except by a written instrument executed by the Companies and Executive. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings of the parties hereto, oral or written, with respect to the subject matter hereof. 13. Waiver, etc. The failure of the Companies to enforce at any time any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provision, nor in any way affect the validity of this Agreement or any provision hereof or the right of the Companies to enforce thereafter each and every provision of this Agreement. No waiver of any breach of any of the provisions of this Agreement by the Companies shall be effective unless set forth in a written instrument executed by the Companies, and no waiver of any such breach shall be  \nconstrued or deemed to be a waiver of any other or subsequent breach. 14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be wholly performed therein without reference to conflicts of law principles, except as otherwise provided. 15. Enforcement. If any party shall institute legal action to enforce or interpret the terms and conditions of this Agreement or to collect any monies under it, venue for any such action shall be the State of New York. Each party irrevocably consents to the jurisdiction of the courts located in the State of New York for all suits or actions arising out of this Agreement. Each party hereto waives to the fullest extent possible, the defense of an\f \ninconvenient forum, and each agrees that a final judgment in any action shall be conclusive and may be enforced in other jurisdictions by suit on the\njudgment or in any other manner provided by law.\n[Next Page is Signature Page]\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day written above.\nGENTIVA HEALTH SERVICES, INC.\nBy:  /s/John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTHE HEALTHFIELD GROUP, INC.\nBy:  /s/John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTONY STRANGE\n/s/ Tony Strange\nTony Strange\n3350 Riverwood Parkway\nSuite 1400\nAtlanta, GA 30339	EX-10.5 4 dex105.htm CONFIDENTIALITY NON-COMPETITION AND INTELLECTUAL PROPERTY\nAGREEMENT\nEXHIBIT 10.5\nCONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY AGREEMENT (this "Agreement"), dated as\nof February 28, 2006 (the "Effective Date"), among Gentiva Health Services, Inc., a Delaware corporation ("Gentiva"; together with all subsidiaries\nof Gentiva, "Parent"), The Healthfield Group, Inc., a Delaware corporation ("Healthfield"; together with all subsidiaries of Healthfield, the\n"Healthfield Group"), (together with the Parent and the Healthfield Group, the "Companies") and Tony Strange ("Executive").\nWHEREAS, the Companies are currently engaged in the business of, among other things, providing comprehensive home health care\nservices.\nWHEREAS, Tara Acquisition Sub Corp., a wholly owned subsidiary of Gentiva, has merged with and into Healthfield (the "Merger").\nWHEREAS, Executive had an employment agreement with the Healthfield Group (the "Old Employment Agreement"), which\nExecutive acknowledges has been terminated as of the date hereof, and Executive has a letter severance agreement with the Companies dated the\ndate hereof (the "Letter Agreement"). In such role, Executive will receive or has received specific confidential information relating to the businesses\nof\nthe Companies, which confidential information is or was necessary to enable Executive to perform Executive's duties. Executive will play or has\nplayed a significant role in the development and management of the businesses of the Companies and has been or will be entrusted with the\nCompanies' confidential information relating to the Companies' customers, manufacturers, distributors and others.\nWHEREAS, Executive is a holder of Healthfield preferred stock and Healthfield common stock and is receiving significant\nconsideration as a result of the Merger.\nWHEREAS, it is a condition to the closing of the Merger that Executive enter into this Agreement.\nNOW, THEREFORE, it is mutually agreed as follows:\n1. Confidentiality.\n(a) Executive shall not, during the term of any employment with the Companies or at any time thereafter, directly or indirectly, divulge,\nuse, furnish, disclose, exploit or make available to any person or entity, whether or not a competitor of the Companies, any Unauthorized disclosure\nof Confidential Information. In the event that Executive is requested or required (by deposition, interrogatories, requests for information or\ndocuments in legal proceedings, subpoenas, civil demand or similar process) to disclose any Confidential Information, Executive will give the\nCompanies prompt written notice of such request or requirement so that the Companies may seek an appropriate protective order or other remedy\nand/or waive compliance with the provisions of this Agreement, and Executive will cooperate with the Companies' efforts to obtain such protective\norder. In the event that such protective order or other remedy is not obtained or the Companies waive compliance with the relevant provisions of this\nAgreement, Executive is permitted to furnish that Confidential Information which is legally required to be disclosed and will use his reasonable\nefforts to obtain assurances that confidential treatment will be accorded to such information.\nAs used herein, the term:\n"Confidential Information' shall mean trade secrets, confidential or proprietary information, and all other information, documents or\nmaterials, relating to, owned, developed or possessed by any of the Companies, whether in tangible or intangible form. Confidential Information\nincludes, but is not limited to, (i) financial information, (ii) products, (iii) product and service costs, prices, profits and sales, (iv) new business,\ntechnical or other ideas, proposals, plans and designs, (v) business strategies, (vi) product and service plans, (vii) marketing plans and studies,\n(viii) forecasts, (ix) budgets, (x) projections, (xi) computer programs, (xii) data bases and the documentation (and information contained therein),\n(xiii) computer access codes and similar information, (xiv) source codes, (xv) know-how, technologies, concepts and designs, including, without\nlimitation, patent applications, (xvi) research projects and all information connected with research and development efforts, (xvii) records,\n(xviii) business methods and recommendations, (xix) existing or prospective client, customer, vendor and supplier information (including, but not\nlimited to, identities, needs, transaction histories, volumes, characteristics, agreements, prices, identities of individual contacts, and spending,\npreferences or habits), (xx) training manuals and similar materials used by the Companies in conducting its business operations, (xxi) personnel files\nof employees, directors and independent contractors of any of the Companies, (xxii) competitive analyses, (xxiii) contracts with other parties,\n(xxiv) product formulations, and (xxv) other confidential or proprietary information that has not been made available to the trade or general public\nby any of the Companies. Confidential Information shall not include any information that (A) is or becomes generally available to the public or the\ntrade other than as a result of a disclosure by the Executive in violation of this Agreement or (B) becomes available to the Executive on a non-\nconfidential basis from a source other than the Companies which is not prohibited from disclosing such information to the Executive by a legal,\ncontractual or fiduciary obligation to the Employer or any other Person.\n"Unauthorized" shall mean: (i) in contravention of the policies or procedures of any of the Companies; (ii) otherwise inconsistent with\nany measures taken by any of the Companies to protect its interests in the Confidential Information; (iii) in contravention of any lawful instruction or\ndirective, either written or oral, of the board of directors, or an officer or employee of any of the Companies empowered to issue such instruction or\ndirective; (iv) in contravention of any duty existing under law or contract; or (v) to the detriment of any of the Companies; but shall not include any\ndisclosure which is customary in the normal course of business in the trade and consistent with the past practice of the Companies.\n(b) Executive further agrees to take all reasonable measures to prevent unauthorized persons or entities from obtaining or using\nConfidential Information. Promptly upon termination, for any reason, of Executive's employment with the Companies, Executive agrees to deliver to\nthe Companies all property and materials within Executive's possession or control which belong to any of the Companies or which contain\nConfidential Information.\n(c)\nNothing in this Section 1 is intended to preclude Executive from using his general knowledge and know-how regarding the\nmanagement of a health care service provider in any future employment or business venture; provided, that Executive's use of such general\nknowledge and know-how does not violate the provisions of Section 2 hereof.\n2. Non-Competition; Non-Solicitation.\n(a) For a period of time equal to the later of the fifth anniversary of the effective date of the Merger or the second anniversary after the\ntermination of the Executive's employment with the Companies (the "Noncompete Period"), Executive will not, directly or indirectly, engage,\nanywhere in the United States, whether such engagement be as an individual, officer, director, proprietor, consultant, employee, partner, member,\nstockholder, investor (other than solely as a holder of less than three percent (3%) of the outstanding capital stock of a corporation whose shares\nare\npublicly traded on a national securities exchange or through a national market system or registered pursuant to Section 12(g) of the Securities\nExchange Act of 1934, as amended), creditor, consultant, advisor, sales representative, agent or other participant, in a Restricted Business.\n(b) During the Noncompete Period, Executive shall not directly or indirectly (i) solicit, divert, or entice away any person who is an\nofficer, agent, or employee of, or consultant or advisor to, any of the Companies to accept employment or a consultancy with a third party or (ii) hire\nany current or future employees of the Companies, unless such person has not been employed by any of the Companies for not less than 12 months\n(other than, Lisa Shunnarah).\n(c) During the Noncompete Period, Executive shall not solicit or accept on behalf of yourself or anyone else any of the Companies'\ncustomers and/or clients with a view to sell or provide any product or service competitive with any product or service sold or provided or under\ndevelopment by the Companies. For the purposes of this Agreement, the term "customer" and/or "client" shall include any person or entity to whom\nthe Companies, through its offices in which you had direct or indirect oversight and managerial duties during your employment with the Companies,\nhave sold, provided or been obligated to provide, any service or product, or who has otherwise received any service or benefit from the Companies,\nwithin 24 months prior to the termination of Executive's employment with the Companies.\n"Restricted Business" shall mean (i) the business operations operated by the Companies; (ii) home health services, including but not\nlimited to the provision of skilled nursing, rehabilitative therapy services (physical, occupational and speech therapy and social work), home health\naid care, and homemaker services to pediatric, adult, and elderly patients in their homes or places of residence; (iii) hospice care; (iv) home/durable\nmedical equipment and/or respiratory services; and (v) infusion therapy.\nNotwithstanding the foregoing, nothing in this Section 2 shall prohibit Executive from (i) owning any amount of stock in Gentiva\nor\nserving in any capacity as an officer, director or employee of Gentiva or (ii) making passive investments in another entity (e.g. a private equity or\ndebt fund) not controlled by Executive that makes investments, whether debt or equity, in other entities that may be engaged in a Restricted\nBusiness, provided that Executive does not directly or indirectly own or control in excess of 10% of any Restricted Business.\n3. Intellectual Property.. Executive agrees that during the term of Executive's employment with the Companies, any and all inventions,\ndiscoveries, innovations, writings, domain names, improvements, trade secrets, designs, drawings, business processes, secret\nprocesses and know-how, whether or not patentable or a copyright or trademark, which Executive may create, conceive, develop or make, either\nalone or in conjunction with others and related or in any way connected with any of the Companies, its strategic plans, products, processes, apparatus\nor business now or hereafter carried on by any of the Companies (collectively, "Inventions"), shall be fully and promptly disclosed to the Companies\nand shall be the sole and exclusive property of the Companies (as they shall determine) as against Executive or any of Executive's assignees.\nRegardless of the status of Executive's employment by the Companies, Executive and Executive's heirs, assigns and representatives shall promptly\nassign to the Companies any and all right, title and interest in and to such Inventions made during the term of Executive's employment by any of the\nCompanies. Executive represents that there are no Inventions with respect to any of the Companies conceived of, developed or made by Executive\nbefore the date of this Agreement which have not been disclosed to and assigned to the Companies.\nWhether during or after Executive's employment with the Companies, Executive further agrees to execute and acknowledge all papers\nand to do, at the Companies' expense, any and all other things necessary for or incident to the applying for, obtaining and maintaining of such letters\npatent, copyrights, trademarks or other intellectual property rights, as the case may be, and to execute, on request, all papers necessary to assign and\ntransfer such Inventions, copyrights, patents, patent applications and other intellectual property rights to the Companies, their successors and assigns\n(as they shall determine). In the event that the Companies are unable, after reasonable efforts and, in any event, after thirty (30) business days, to\nsecure Executive's signature on a written assignment to the Companies, of any application for letters patent, trademark registration or to any\ncommon law or statutory copyright or other property right therein to which the Companies are entitled to ownership pursuant to this Section 3,\nwhether because of his physical or mental incapacity, or for any other reason whatsoever, Executive irrevocably designates and appoints the\nSecretary or any Assistant Secretary of the Parent as Executive's attorney-in-fact to act on Executive's behalf to execute and file any such\napplications and to do all lawfully permitted acts to further the prosecution or issuance of such assignments, letters patent, copyright or trademark;\nprovided, however, that the provisions of this sentence shall not apply if the Executive disputes in writing the Companies' ownership of the\nintellectual property rights which are the subject of the proposed assignment.\n4.\nNon-Disparagement. Executive shall not make any false, defamatory or disparaging statements about any of the Companies or any of its\nofficers, directors and employees. No officer or director of the Parent shall make any false, defamatory or disparaging statements about the\nExecutive.\n5. No Right to Continued Employment. Nothing in this Agreement shall confer upon Executive any right to continue in the employ of the\nCompanies or shall interfere with or restrict in any way the rights of the Companies, which, subject to the terms of the Letter Agreement, are hereby\nreserved, to discharge Executive at any time for any reason whatsoever, with or without cause.\n6. No Conflicting Agreements. Executive warrants that Executive is not bound by the terms of a confidentiality agreement, non-competition or\nother agreement with a third party that would conflict with Executive's obligations hereunder.\n7. Remedies. The period of time during which the restrictions set forth in Section 2(a) hereof will be in effect will be extended by the length of\ntime during which Executive is in breach of the terms of those provisions as finally determined by any court of competent jurisdiction.\n8. Successors and Assigns. This Agreement shall be binding upon Executive and Executive's heirs, assigns and representatives and inure to the\nbenefit of the Companies and their successors and assigns, including without limitation any entity to which substantially all of the assets or the\nbusiness of any of the Companies are sold or transferred. The obligations of Executive are personal to Executive and shall not be assigned by\nExecutive. The Companies may assign its rights under this Agreement to any affiliate of the Companies that employs Executive.\n9. Severability.. It is expressly agreed that if any restrictions set forth in this Agreement are found by any court having jurisdiction to be\nunreasonable because they are too broad in any respect, then and in each such case, the remaining provisions herein contained shall, nevertheless,\nremain effective, and this Agreement, or any portion hereof, shall be considered to be amended, so as to be considered reasonable and enforceable by\nsuch\ncourt, and the court shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any\nportion of the time period, business or geographic areas to the extent the court deems such restriction to be necessary to cause the covenants to\nbe\nenforceable and, in such event, the covenants shall be enforced to the extent so permitted and the remaining provisions shall be unaffected thereby.\nIn such event, the parties hereto agree to execute all documents necessary to evidence such amendment so as to eliminate or modify any such\nunreasonable provision in order to carry out the intent of this Agreement insofar as possible and to render this Agreement enforceable in all respects\nas so modified. The covenants contained in this Section 9 shall be construed to extend to separate jurisdictions or subjurisdictions of the United\nStates in which the Companies, during the term of Executive's employment, have been or are engaged in business, and to the extent that any such\ncovenant shall be illegal and/or unenforceable with respect to any jurisdiction, said covenant shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each jurisdiction being construed as severable and independent. Any covenant on Executive's part\ncontained hereinabove, which may not be specifically enforceable, shall nevertheless, if breached, give rise to a cause of action for monetary\ndamages. The restrictive covenant provisions of this Agreement shall govern to the extent there is any conflict between their terms and the terms of\nany other agreement or understanding with the Companies.\n10. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered\npersonally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one\nBusiness Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and\nfacsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this\nprovision):\nIf to the Companies, to:\nwith a copy to:\nGentiva Health Services, Inc.\nWeil, Gotshal & Manges LLP\n3 Huntington Quadrangle, Suite 200S\n767 Fifth Avenue\nMelville, NY 11747-4627\nNew York, NY 10153\nAttention: Stephen B. Paige, General Counsel\nAttention: Jeffrey J. Weinberg, Esq.\nFacsimile: (913) 814-5920\nFacsimile: (212) 310-8007\nIf to the Executive, to:\nExecutive's address set forth\nGreenberg Traurig\nbeneath Executive's\nThe Forum\nsignature on this Agreement.\n3290 Northside Parkway, NW\nSuite 1400\nAtlanta, GA 30327\nAttention: Gary Snyder, Esq.\nFacsimile: (678) 553-2212\n11. Amendment. No provision of this Agreement may be modified, amended, waived or discharged in any manner except by a written\ninstrument executed by the Companies and Executive.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and\nsupersedes all prior agreements and understandings of the parties hereto, oral or written, with respect to the subject matter hereof.\n13. Waiver,et The failure of the Companies to enforce at any time any of the provisions of this Agreement shall not be deemed or construed\nto be a waiver of any such provision, nor in any way affect the validity of this Agreement or any provision hereof or the right of the Companies to\nenforce thereafter each and every provision of this Agreement. No waiver of any breach of any of the provisions of this Agreement by the\nCompanies shall be effective unless set forth in a written instrument executed by the Companies, and no waiver of any such breach shall be\nconstrued or deemed to be a waiver of any other or subsequent breach.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to\ncontracts made and to be wholly performed therein without reference to conflicts of law principles, except as otherwise provided.\n15. Enforcement. If any party shall institute legal action to enforce or interpret the terms and conditions of this Agreement or to collect any\nmonies under it, venue for any such action shall be the State of New York. Each party irrevocably consents to the jurisdiction of the courts located in\nthe State of New York for all suits or actions arising out of this Agreement. Each party hereto waives to the fullest extent possible, the defense of an\ninconvenient forum, and each agrees that a final judgment in any action shall be conclusive and may be enforced in other jurisdictions by suit on the\njudgment or in any other manner provided by law.\n[Next Page is Signature Page]\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day written above.\nGENTIVA HEALTH SERVICES, INC.\nBy:\n/s/ John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTHE HEALTHFIELD GROUP, INC.\nBy:\n/s/ John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTONY STRANGE\n/s/ Tony Strange\nTony Strange\n3350 Riverwood Parkway\nSuite 1400\nAtlanta, GA 30339	EX-10.5 4 dex105.htm CONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY\nAGREEMENT\nEXHIBIT 10.5\nCONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”), dated as\nof February 28, 2006 (the “Effective Date”), among Gentiva Health Services, Inc., a Delaware corporation (“Gentiva”; together with all subsidiaries\nof Gentiva, “Parent”), The Healthfield Group, Inc., a Delaware corporation (“Healthfield”; together with all subsidiaries of Healthfield, the\n“Healthfield Group”), (together with the Parent and the Healthfield Group, the “Companies”) and Tony Strange (“Executive”).\nWHEREAS, the Companies are currently engaged in the business of, among other things, providing comprehensive home health care\nservices.\nWHEREAS, Tara Acquisition Sub Corp., a wholly owned subsidiary of Gentiva, has merged with and into Healthfield (the “Merger”).\nWHEREAS, Executive had an employment agreement with the Healthfield Group (the “Old Employment Agreement”), which\nExecutive acknowledges has been terminated as of the date hereof, and Executive has a letter severance agreement with the Companies dated the\ndate hereof (the “Letter Agreement”). In such role, Executive will receive or has received specific confidential information relating to the businesses\nof the Companies, which confidential information is or was necessary to enable Executive to perform Executive’s duties. Executive will play or has\nplayed a significant role in the development and management of the businesses of the Companies and has been or will be entrusted with the\nCompanies’ confidential information relating to the Companies’ customers, manufacturers, distributors and others.\nWHEREAS, Executive is a holder of Healthfield preferred stock and Healthfield common stock and is receiving significant\nconsideration as a result of the Merger.\nWHEREAS, it is a condition to the closing of the Merger that Executive enter into this Agreement.\nNOW, THEREFORE, it is mutually agreed as follows:\n1. Confidentiality.\n(a) Executive shall not, during the term of any employment with the Companies or at any time thereafter, directly or indirectly, divulge,\nuse, furnish, disclose, exploit or make available to any person or entity, whether or not a competitor of the Companies, any Unauthorized disclosure\nof Confidential Information. In the event that Executive is requested or required (by deposition, interrogatories, requests for information or\ndocuments in legal proceedings, subpoenas, civil demand or similar process) to disclose any Confidential Information, Executive will give the\nCompanies prompt written notice of such request or requirement so that the Companies may seek an appropriate protective order or other remedy\nand/or waive compliance with the provisions of this Agreement, and Executive will cooperate with the Companies’ efforts to obtain such protective\norder. In the event that such protective order or other remedy is not obtained or the Companies waive compliance with the relevant provisions of this\nAgreement, Executive is permitted to furnish that Confidential Information which is legally required to be disclosed and will use his reasonable\nefforts to obtain assurances that confidential treatment will be accorded to such information.\nAs used herein, the term:\n“Confidential Information” shall mean trade secrets, confidential or proprietary information, and all other information, documents or\nmaterials, relating to, owned, developed or possessed by any of the Companies, whether in tangible or intangible form. Confidential Information\nincludes, but is not limited to, (i) financial information, (ii) products, (iii) product and service costs, prices, profits and sales, (iv) new business,\ntechnical or other ideas, proposals, plans and designs, (v) business strategies, (vi) product and service plans, (vii) marketing plans and studies,\n(viii) forecasts, (ix) budgets, (x) projections, (xi) computer programs, (xii) data bases and the documentation (and information contained therein),\n(xiii) computer access codes and similar information, (xiv) source codes, (xv) know-how, technologies, concepts and designs, including, without\nlimitation, patent applications, (xvi) research projects and all information connected with research and development efforts, (xvii) records,\n(xviii) business methods and recommendations, (xix) existing or prospective client, customer, vendor and supplier information (including, but not\nlimited to, identities, needs, transaction histories, volumes, characteristics, agreements, prices, identities of individual contacts, and spending,\npreferences or habits), (xx) training manuals and similar materials used by the Companies in conducting its business operations, (xxi) personnel files\nof employees, directors and independent contractors of any of the Companies, (xxii) competitive analyses, (xxiii) contracts with other parties,\n(xxiv) product formulations, and (xxv) other confidential or proprietary information that has not been made available to the trade or general public\nby any of the Companies. Confidential Information shall not include any information that (A) is or becomes generally available to the public or the\ntrade other than as a result of a disclosure by the Executive in violation of this Agreement or (B) becomes available to the Executive on a non-\nconfidential basis from a source other than the Companies which is not prohibited from disclosing such information to the Executive by a legal,\ncontractual or fiduciary obligation to the Employer or any other Person.\n“Unauthorized” shall mean: (i) in contravention of the policies or procedures of any of the Companies; (ii) otherwise inconsistent with\nany measures taken by any of the Companies to protect its interests in the Confidential Information; (iii) in contravention of any lawful instruction or\ndirective, either written or oral, of the board of directors, or an officer or employee of any of the Companies empowered to issue such instruction or\ndirective; (iv) in contravention of any duty existing under law or contract; or (v) to the detriment of any of the Companies; but shall not include any\ndisclosure which is customary in the normal course of business in the trade and consistent with the past practice of the Companies.\n(b) Executive further agrees to take all reasonable measures to prevent unauthorized persons or entities from obtaining or using\nConfidential Information. Promptly upon termination, for any reason, of Executive’s employment with the Companies, Executive agrees to deliver to\nthe Companies all property and materials within Executive’s possession or control which belong to any of the Companies or which contain\nConfidential Information.\n(c) Nothing in this Section 1 is intended to preclude Executive from using his general knowledge and know-how regarding the\nmanagement of a health care service provider in any future employment or business venture; provided, that Executive’s use of such general\nknowledge and know-how does not violate the provisions of Section 2 hereof.\n2. Non-Competition; Non-Solicitation.\n(a) For a period of time equal to the later of the fifth anniversary of the effective date of the Merger or the second anniversary after the\ntermination of the Executive’s employment with the Companies (the “Noncompete Period”), Executive will not, directly or indirectly, engage,\nanywhere in the United States, whether such engagement be as an individual, officer, director, proprietor, consultant, employee, partner, member,\nstockholder, investor (other than solely as a holder of less than three percent (3%) of the outstanding capital stock of a corporation whose shares are\npublicly traded on a national securities exchange or through a national market system or registered pursuant to Section 12(g) of the Securities\nExchange Act of 1934, as amended), creditor, consultant, advisor, sales representative, agent or other participant, in a Restricted Business.\n(b) During the Noncompete Period, Executive shall not directly or indirectly (i) solicit, divert, or entice away any person who is an\nofficer, agent, or employee of, or consultant or advisor to, any of the Companies to accept employment or a consultancy with a third party or (ii) hire\nany current or future employees of the Companies, unless such person has not been employed by any of the Companies for not less than 12 months\n(other than, Lisa Shunnarah).\n(c) During the Noncompete Period, Executive shall not solicit or accept on behalf of yourself or anyone else any of the Companies’\ncustomers and/or clients with a view to sell or provide any product or service competitive with any product or service sold or provided or under\ndevelopment by the Companies. For the purposes of this Agreement, the term “customer” and/or “client” shall include any person or entity to whom\nthe Companies, through its offices in which you had direct or indirect oversight and managerial duties during your employment with the Companies,\nhave sold, provided or been obligated to provide, any service or product, or who has otherwise received any service or benefit from the Companies,\nwithin 24 months prior to the termination of Executive’s employment with the Companies.\n“Restricted Business” shall mean (i) the business operations operated by the Companies; (ii) home health services, including but not\nlimited to the provision of skilled nursing, rehabilitative therapy services (physical, occupational and speech therapy and social work), home health\naid care, and homemaker services to pediatric, adult, and elderly patients in their homes or places of residence; (iii) hospice care; (iv) home/durable\nmedical equipment and/or respiratory services; and (v) infusion therapy.\nNotwithstanding the foregoing, nothing in this Section 2 shall prohibit Executive from (i) owning any amount of stock in Gentiva or\nserving in any capacity as an officer, director or employee of Gentiva or (ii) making passive investments in another entity (e.g. a private equity or\ndebt fund) not controlled by Executive that makes investments, whether debt or equity, in other entities that may be engaged in a Restricted\nBusiness, provided that Executive does not directly or indirectly own or control in excess of 10% of any Restricted Business.\n3. Intellectual Property. Executive agrees that during the term of Executive’s employment with the Companies, any and all inventions,\ndiscoveries, innovations, writings, domain names, improvements, trade secrets, designs, drawings, business processes, secret\nprocesses and know-how, whether or not patentable or a copyright or trademark, which Executive may create, conceive, develop or make, either\nalone or in conjunction with others and related or in any way connected with any of the Companies, its strategic plans, products, processes, apparatus\nor business now or hereafter carried on by any of the Companies (collectively, “Inventions”), shall be fully and promptly disclosed to the Companies\nand shall be the sole and exclusive property of the Companies (as they shall determine) as against Executive or any of Executive’s assignees.\nRegardless of the status of Executive’s employment by the Companies, Executive and Executive’s heirs, assigns and representatives shall promptly\nassign to the Companies any and all right, title and interest in and to such Inventions made during the term of Executive’s employment by any of the\nCompanies. Executive represents that there are no Inventions with respect to any of the Companies conceived of, developed or made by Executive\nbefore the date of this Agreement which have not been disclosed to and assigned to the Companies.\nWhether during or after Executive’s employment with the Companies, Executive further agrees to execute and acknowledge all papers\nand to do, at the Companies’ expense, any and all other things necessary for or incident to the applying for, obtaining and maintaining of such letters\npatent, copyrights, trademarks or other intellectual property rights, as the case may be, and to execute, on request, all papers necessary to assign and\ntransfer such Inventions, copyrights, patents, patent applications and other intellectual property rights to the Companies, their successors and assigns\n(as they shall determine). In the event that the Companies are unable, after reasonable efforts and, in any event, after thirty (30) business days, to\nsecure Executive’s signature on a written assignment to the Companies, of any application for letters patent, trademark registration or to any\ncommon law or statutory copyright or other property right therein to which the Companies are entitled to ownership pursuant to this Section 3,\nwhether because of his physical or mental incapacity, or for any other reason whatsoever, Executive irrevocably designates and appoints the\nSecretary or any Assistant Secretary of the Parent as Executive’s attorney-in-fact to act on Executive’s behalf to execute and file any such\napplications and to do all lawfully permitted acts to further the prosecution or issuance of such assignments, letters patent, copyright or trademark;\nprovided, however, that the provisions of this sentence shall not apply if the Executive disputes in writing the Companies’ ownership of the\nintellectual property rights which are the subject of the proposed assignment.\n4. Non-Disparagement. Executive shall not make any false, defamatory or disparaging statements about any of the Companies or any of its\nofficers, directors and employees. No officer or director of the Parent shall make any false, defamatory or disparaging statements about the\nExecutive.\n5. No Right to Continued Employment. Nothing in this Agreement shall confer upon Executive any right to continue in the employ of the\nCompanies or shall interfere with or restrict in any way the rights of the Companies, which, subject to the terms of the Letter Agreement, are hereby\nreserved, to discharge Executive at any time for any reason whatsoever, with or without cause.\n6. No Conflicting Agreements. Executive warrants that Executive is not bound by the terms of a confidentiality agreement, non-competition or\nother agreement with a third party that would conflict with Executive’s obligations hereunder.\n7. Remedies. The period of time during which the restrictions set forth in Section 2(a) hereof will be in effect will be extended by the length of\ntime during which Executive is in breach of the terms of those provisions as finally determined by any court of competent jurisdiction.\n8. Successors and Assigns. This Agreement shall be binding upon Executive and Executive’s heirs, assigns and representatives and inure to the\nbenefit of the Companies and their successors and assigns, including without limitation any entity to which substantially all of the assets or the\nbusiness of any of the Companies are sold or transferred. The obligations of Executive are personal to Executive and shall not be assigned by\nExecutive. The Companies may assign its rights under this Agreement to any affiliate of the Companies that employs Executive.\n9. Severability. It is expressly agreed that if any restrictions set forth in this Agreement are found by any court having jurisdiction to be\nunreasonable because they are too broad in any respect, then and in each such case, the remaining provisions herein contained shall, nevertheless,\nremain effective, and this Agreement, or any portion hereof, shall be considered to be amended, so as to be considered reasonable and enforceable by\nsuch court, and the court shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any\nportion of the time period, business or geographic areas to the extent the court deems such restriction to be necessary to cause the covenants to be\nenforceable and, in such event, the covenants shall be enforced to the extent so permitted and the remaining provisions shall be unaffected thereby.\nIn such event, the parties hereto agree to execute all documents necessary to evidence such amendment so as to eliminate or modify any such\nunreasonable provision in order to carry out the intent of this Agreement insofar as possible and to render this Agreement enforceable in all respects\nas so modified. The covenants contained in this Section 9 shall be construed to extend to separate jurisdictions or subjurisdictions of the United\nStates in which the Companies, during the term of Executive’s employment, have been or are engaged in business, and to the extent that any such\ncovenant shall be illegal and/or unenforceable with respect to any jurisdiction, said covenant shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each jurisdiction being construed as severable and independent. Any covenant on Executive’s part\ncontained hereinabove, which may not be specifically enforceable, shall nevertheless, if breached, give rise to a cause of action for monetary\ndamages. The restrictive covenant provisions of this Agreement shall govern to the extent there is any conflict between their terms and the terms of\nany other agreement or understanding with the Companies.\n10. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered\npersonally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one\nBusiness Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and\nfacsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this\nprovision):\nIf to the Companies, to:\nwith a copy to:\nGentiva Health Services, Inc.\n3 Huntington Quadrangle, Suite 200S\nMelville, NY 11747-4627\nAttention: Stephen B. Paige, General Counsel\nFacsimile: (913) 814-5920\nWeil, Gotshal & Manges LLP\n767 Fifth Avenue\nNew York, NY 10153\nAttention: Jeffrey J. Weinberg, Esq.\nFacsimile: (212) 310-8007\nIf to the Executive, to:\nExecutive’s address set forth\nbeneath Executive’s\nsignature on this Agreement.\nGreenberg Traurig\nThe Forum\n3290 Northside Parkway, NW\nSuite 1400\nAtlanta, GA 30327\nAttention: Gary Snyder, Esq.\nFacsimile: (678) 553-2212\n11. Amendment. No provision of this Agreement may be modified, amended, waived or discharged in any manner except by a written\ninstrument executed by the Companies and Executive.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and\nsupersedes all prior agreements and understandings of the parties hereto, oral or written, with respect to the subject matter hereof.\n13. Waiver, etc. The failure of the Companies to enforce at any time any of the provisions of this Agreement shall not be deemed or construed\nto be a waiver of any such provision, nor in any way affect the validity of this Agreement or any provision hereof or the right of the Companies to\nenforce thereafter each and every provision of this Agreement. No waiver of any breach of any of the provisions of this Agreement by the\nCompanies shall be effective unless set forth in a written instrument executed by the Companies, and no waiver of any such breach shall be\nconstrued or deemed to be a waiver of any other or subsequent breach.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to\ncontracts made and to be wholly performed therein without reference to conflicts of law principles, except as otherwise provided.\n15. Enforcement. If any party shall institute legal action to enforce or interpret the terms and conditions of this Agreement or to collect any\nmonies under it, venue for any such action shall be the State of New York. Each party irrevocably consents to the jurisdiction of the courts located in\nthe State of New York for all suits or actions arising out of this Agreement. Each party hereto waives to the fullest extent possible, the defense of an\ninconvenient forum, and each agrees that a final judgment in any action shall be conclusive and may be enforced in other jurisdictions by suit on the\njudgment or in any other manner provided by law.\n[Next Page is Signature Page]\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day written above.\nGENTIVA HEALTH SERVICES, INC.\nBy: /s/ John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTHE HEALTHFIELD GROUP, INC.\nBy: /s/ John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTONY STRANGE\n/s/ Tony Strange\nTony Strange\n3350 Riverwood Parkway\nSuite 1400\nAtlanta, GA 30339
988f7c53c00bb333a4b7188738a25378.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nExhibit 10.1\nAGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nThis AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT (this “Agreement”) is made and entered into as of the 11th day of\nMay, 2009, by and among API Nanotronics Corp., a Delaware corporation and API ELECTRONICS, INC., a Delaware corporation (collectively,\n“API”), and THOMAS W. MILLS, SR. (“Employee”).\nRECITALS:\nA. Employee’s employment with API will end effective March 19, 2009 (the “Separation Date”).\nB. Employee first received a copy of this Agreement on March 19, 2009 and received a copy of this version of the Agreement on April 28,\n2009.\nC. API enters into this Agreement based solely on Employee’s representation that this Agreement will resolve any and all claims Employee has\nor could have against API for any issue relating to his employment or the end of his employment with API and all affiliates of API and that\nEmployee has waived any right to pursue any lawsuit against API with respect to his employment, the separation of that employment, or any other\nissue that arose prior to his execution of this Agreement.\nD. In an effort to end the employment relationship on an amicable basis, and in consideration of the mutual covenants, promises, and\nobligations contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is mutually\nacknowledged, the Parties hereby agree as follows:\nAGREEMENT:\n1. Definition. Throughout this Agreement, the term “API” shall encompass the following:\n(a) API, as well as any division thereof, parent, subsidiary, affiliated entity, or related entity, predecessors, successors and assigns of any\nof the foregoing; and\n(b) Any current or former officer, director, trustee, agent, employee, shareholder, representative, insurer, or employee benefit or welfare\nprogram or plan (including administrators, trustees, fiduciaries, and insurers of such program or plan) of an entity referenced in or\nencompassed by Subparagraph 1(a).\n2. Resignations; Future Employment. Employee hereby resigns from his position as an officer of API, including without limitation, as\nPresident and Chief Operating Officer for API Nanotronics Corp., a member of API’s Board of Directors and all other officer positions and\ndirectorships he held with API, effective as of the Separation Date. All authority granted Employee by API shall be revoked as of the Separation\nDate. At API’s request, Employee shall execute any and all documents necessary to confirm Employee’s resignation from API. Employee’s\nemployment with API shall end on the Separation Date. Employee agrees that as a\ncondition of this Agreement, Employee will not seek reemployment with API at any time and should Employee apply in the future, his application\nfor employment will not be considered by API and will be null and void. Employee acknowledges that promptly after the Separation Date API is\nrequired to issue a press release announcing Employee’s resignation and promptly after the Effective Date API is required to issued a press release\nwith respect to this Agreement. Employee also acknowledges that API shall make such filings with the United States Securities and Exchange\nCommission with respect to Employee’s resignation and this Agreement as required by law and as it deems appropriate.\n3. Severance Payment and Other Consideration. API, in consideration for the promises contained herein, agrees as follows:\n(a) API will continue to pay Employee’s weekly salary of two thousand four hundred three and 85/100 ($2403.85) (less withholdings and\ndeductions required by law) for fifty-two (52) weekly pay periods (the “Severance Period”), payable to Employee via direct deposit on API’s\nregular paydays. Such payments shall begin within 14 days after the Effective Date. The payments due to Employee pursuant to this\nSection 3(a) cannot be offset by amounts due from Employee to API pursuant to any cause of action or claim, except as set forth in\nSection 9(d) and 10(h).\n(b) API and Employee agree that no amounts are due to Employee for accrued and unpaid vacation as of the Separation Date.\n(c) API will pay the monthly lease payments of $652.00 due under Employee’s car lease with Smithtown Motors Corp. for a period of\ntwelve months from the Separation Date.\n(d) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee’s coverage under\nits medical and dental plans (the “Medical Plans”) at the same benefit level Employee received immediately prior to the Separation Date.\nNotwithstanding the foregoing, in no event will API pay for or continue Employee’s coverage under the Medical Plans during the Severance\nPeriod if Employee becomes eligible for coverage under another group health plan. After the Severance Period, Employee will no longer be\ncovered by API’s Medical Plans. At that time, Employee will have any conversion rights available under the Medical Plans and as otherwise\nprovided by law, including the Comprehensive Omnibus Budget Reconciliation Act (“COBRA”). The period during which Employee will be\nentitled to continuation coverage under COBRA shall begin on the day after the Severance Period. If Employee elects to continue coverage\nunder the Medical Plans, Employee shall be responsible for the payment of premiums, as permitted by law. Employee agrees to immediately\nnotify API in writing, if Employee becomes eligible for such coverage under another group health plan. Such notice shall be given to API\nElectronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer.\n(e) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee’s coverage under\nits Short Term\n-2-\nDisability, Long Term Disability, Group Life Insurance and the Accidental Death and Dismemberment Plans (“Insurance Plans”). After the\nSeverance Period, Employee will have any conversion rights available under the Insurance Plans.\n(f) Employee shall not participate in the API Retirement Savings Plan after the Separation Date. Employee will be entitled to benefits\nearned and vested (if any) prior to the Separation Date pursuant to the applicable API Retirement Savings Plan provisions.\n(g) Employee will not be eligible for a bonus for the Fiscal Year 2009 or anytime thereafter, or any portion thereof.\nThe payments described in this Section 3 reflect consideration provided to Employee over and above anything of value to which Employee is\nalready entitled. In paying the amount specified in this Section 3, API makes no representation as to the tax consequences or liability arising\nfrom said payment. Moreover, the parties understand and agree that any tax consequences and/or liability arising from the payment to\nEmployee shall be the sole responsibility of Employee. To this extent, Employee acknowledges and agrees that he will pay any and all federal,\nstate and local income tax which may be determined to be due in connection with the payments described in this Section 3. Employee also\nagrees to indemnify API from all tax and/or other liability (including, but not limited to, fines, penalties, interest, and costs) arising from or\nrelating to the payment described in this Section 3 and/or imposed by the Internal Revenue Service, the State of New York, or any other taxing\nagency or tribunal as a result of API’s failure to withhold taxes on the payments described in this Section 3 or any portion thereof.\nEmployee acknowledges and agrees that the consideration and sums included in this Section 3 are the maximum sums ever to be due to\nEmployee from API, and he hereby relinquishes and waives any rights to other forms of payment or benefits under any other agreement\nbetween Employee and API, whether written, oral, express or implied.\n(h) Employee shall be entitled to keep desk, credenza and three matching chairs that formerly belonged to the former owner of Solid\nState Power. Employee shall arrange to pick-up said items, within seven (7) days of the Effective Date (as defined below)\n(i) API shall pay Employee $35,000 in full and complete satisfaction of all claims of Employee to shares of common stock of API or any\nother securities of API. Such amount shall be paid to employee by check and sent to Employee by API on the day following the Effective\nDate.\n4. General Release and Waiver from Employee. In consideration for the payments reflected in Section 3, Employee (for himself, his agents,\nassigns, heirs, executors, and administrators) hereby releases and discharges API from any claim, demand, action, or cause of action, known or\nunknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims relating to,\narising out of, or in any\n-3-\nway connected with his employment with or termination of employment from API including, without limitation, any claim, demand, action, cause of\naction, including money damages and claims for attorneys’ fees, based on but not limited to:\n(a) The Age Discrimination in Employment Act of 1967, as amended (“ADEA”), 29 U.S .C. § 621, et seq.;\n(b) The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.;\n(c) The Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq.;\n(d) The Family and Medical Leave Act of 1993, 29 U.S .C. § 2601, et seq.;\n(e) The Civil Rights Act of 1866 and 1964, as amended, 42 U.S .C. § 1981;\n(f) The Employee Retirement Security Act of 1973, 29 U.S .C. § 1001, et seq.;\n(g) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S .C. § 2000(e), et seq.;\n(h) The Fair Credit Reporting Act, 15 U.S .C. § 1681, et seq.;\n(i) The Fair Labor Standards Act, 29 U.S .C. § 201 et seq;\n(j) The New York Human Rights Law;\n(k) The New York Civil Rights Law;\n(l) The New York State Executive Law;\n(m) The New York City Administrative Code;\n(n) Any existing or potential entitlement under any API program or plan, including wages or other paid leave;\n(o) Any existing or potential agreement, contract, representation, policy, procedure, or statement (whether any of the foregoing are\nexpress or implied, oral or written);\n(p) Claims arising under any other federal, state or local fair employment practices law, disability benefits law, and any other employee\nor labor relations statute, executive order, law, ordinance, regulation or order and any duty or other employment-related obligation, including\nany claims arising from any other type of statute, executive order, law or ordinance,\n(q) Claims arising from contract or public policy, as well as tort, tortious cause of conduct, breach of contract, intentional infliction of\nemotional distress, negligence, discrimination, harassment, and retaliation, together with all claims for monetary and equitable relief, punitive\nand compensatory relief and attorneys’ fees and costs; and\n-4-\n(r) The New York Constitution and/or the United States Constitution.\nEmployee understands and agrees that he is releasing API from any and all claims by which he is giving up the opportunity to recover any\ncompensation, damages, or any other form of relief in any proceeding brought by Employee or on Employee’s behalf. Employee understands\nthat this release expressly includes all claims that could have been raised in a federal, state, county or local court and that this release also\nincludes all claims for attorneys’ fees and any other remedy that could have been sought in connection with any of the released claims.\nNotwithstanding the foregoing, this Agreement is not intended to operate as a waiver of any retirement or pension benefits that are vested, the\neligibility and entitlement to which shall be governed by the terms of the applicable plan. Nor shall this Agreement operate to waive or bar any\nclaim or right which - may not by operation of law or regulation be waived or barred.\n5. Release and Waiver from API. In consideration for the covenants and agreements of Employee set forth in this Agreement, API on behalf\nof itself and its affiliates, successors and assigns hereby releases and discharges Employee from any claim, demand, action, or cause of action,\nknown or unknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims\nrelating to, arising out of, or in any way connected with Employee’s employment with or termination of employment from API, except that this\nrelease shall not include any claim, demand, action, or cause of action, known or unknown, arising out of any violation or alleged violation of law or\nany material violation or alleged material violation of a company policy of API or any of its affiliates, which arose at any time from the beginning of\ntime to the date Employee executes this Agreement.\n6. Mutual Disclaimer. Employee states under penalties of perjury that - at the time he executes this Agreement - Employee is not aware of any\nfacts or incidents of wrongdoing, liability, harassment, discrimination or retaliation by API from the beginning of time up to the date Employee signs\nthe Agreement. The parties further understand that the offer of severance creates no precedent for API in dealing with any future separations.\n7. No Other Claims Pending. Employee represents and warrants that, with the possible exception of a claim for unemployment\ncompensation, Employee has not filed or otherwise initiated any complaint, cause of action or claim against API based on events occurring prior to\nand including the date he executes this Agreement. Employee further represents and warrants that, as of the date he executes this Agreement,\nEmployee is unaware of any outstanding complaints, causes of action or claims against API that involve or relate in any way to Employee.\n8. Job References. Employee shall direct job references to API’s Corporate Director of Human Resources. Such references shall be limited to\nlast position held and dates of employment.\n-5-\n9. Confidentiality.\n(a) Employee recognizes and understands the importance of maintaining each and every term of this Agreement in a confidential manner,\nuntil such time as API is required to disclose such terms to the public (the “Disclosure Date”). Employee further understands that prior to the\nDisclosure Date confidentiality is a material and critical aspect of this Agreement and is of paramount concern to all involved. Until the\nDisclosure Date, Employee agrees as follows. Employee agrees to keep the terms of this Agreement confidential and will not disclose any\ninformation concerning it to anyone except his spouse, tax advisor, legal counsel, or anyone required by law to know the contents of the\nAgreement; provided, that Employee shall inform any of these specified persons that Employee is bound by a confidentiality covenant and\nprior to any such disclosure to any of such persons, require that such person agree to abide by the terms of such covenant and not disclose any\ninformation concerning the Agreement. Employee agrees that, in the event he is compelled by court order or process to disclose any terms of\nthis Agreement, Employee shall immediately notify the undersigned representative of API in writing at least seven (7) days prior to the\ndisclosure.\n(b) Employee further agrees that he will not contact any employees or business associates of API, including but not limited to field\nrepresentatives, independent sales representatives, or present or past customers of API, concerning his employment, the cessation of his\nemployment, or any information contained within this Agreement.\n(c) If asked about the terms of any severance, Employee agrees that he will decline comment and will make no comments or physical\ngestures indicating that he has recovered monetary sums from API. Employee also agrees that he has not (i) disclosed his efforts to seek\nadditional severance or money with any current or former API employee, (ii) disclosed legal theories or allegations of discrimination or\nwrongdoing by API with any current or former API employee, or (iii) talked to or encouraged any current or former API employee about filing\na lawsuit, cause of action or claim against API.\n(d) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 9. Employee understands that a violation of this Section 9 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section9\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n-6-\n10. Non-Disclosure/Return of Property/Non-Competition.\n(a) Employee agrees that the information he obtained as a result of his position with API was sensitive, private, and/or confidential\ninformation. Employee agrees not to use or disclose (directly or indirectly) confidential, sensitive, or proprietary information concerning API\nobtained by him during his employment with API. For purposes of this Agreement, “Proprietary Information” includes, without limitation, all\nmaterials and information (whether written or not) about API’s current, prior, or prospective services or business activities, formulae, products,\nprocesses, research, plans, system designs, system applications, customers, affiliates, personnel, finances, purchasing, sales, marketing and\nmarkets, accounting, customer lists, business contracts, agreements, licenses, costs, pricing, profits, improvements, discoveries, software,\nbusiness methods and formulas, inventions, and other business aspects of API (including, but not limited to, information concerning, relating\nto, or arising out of relationships with customers, independent sales agents, lenders, investors or other business affiliates), which are not\ngenerally known and accessible to the public at large or which provide API with a competitive advantage. Employee hereby agrees that: (i) he\nhas kept and will keep all such information confidential; and (ii) he will not volunteer or disclose any such information to anyone without first\nobtaining express authorization to do so from the undersigned representative of API. Notwithstanding the foregoing, nothing in this Agreement\nshall be intended to limit Employee’s ability to provide information to legal counsel for API or pursuant to a court order. Moreover, this\nSection 10 shall not encompass or apply to information which is in the public domain, which becomes part of the public domain through no\nact, omission, or fault of Employee.\n(b) By signing this Agreement, Employee agrees that he has not disclosed or used information in violation of this provision and that he\nwill not do so in the future. API does not intend to limit Employee in any way from seeking employment or conducting business so long as\nEmployee does not use or disclose the proprietary information covered by this Section 10 and so long as Employee does not violate any other\nprovision contained within this Agreement. Employee certifies and declares that he already has returned or shall return to the custody of API\nall Proprietary Information, company property (including without limitation any laptop computer, cellular telephone, and Blackberry or similar\ndevices) and Company Documents - as well as any copies of Proprietary Information, company property, and Company Documents - in his\npossession by the Separation Date. The phrase “Company Documents” is defined to include any writings, documents, contracts, records, files,\ntape recordings, correspondence, photographs, communications, summaries, data, notes, memoranda, diskettes, business plans, price books, or\nany other source containing information which relates to or references API and which was provided by API or obtained as a result of\nEmployee’s relationship/employment with API.\n(c) During the one (1) year period following the Separation Date (the “Restricted Period”), Employee will not, whether on Employee’s\nown behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business\norganization, entity or enterprise whatsoever (“Person”), directly or indirectly:\n(i) engage in any business that competes with the businesses of API or its affiliates (including, without limitation, businesses which\nAPI or its affiliates have specific plans to conduct in the future and in connection with which API and/or its affiliates have expended\nmore than nominal time and/or capital and as to which plans Employee is aware) in any geographical area in which API or its affiliates\nproduces, manufactures, sells, leases, rents, licenses or otherwise provides its products or services, (a “Competitive Business”);\n-7-\n(ii) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which engages in a Competitive Business;\n(iii) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as\nan individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or\n(iv) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this\nAgreement) between API or any of its affiliates and customers, clients, contractors, managers, consultants, suppliers or investors of API\nor its affiliates.\n(d) Notwithstanding anything to the contrary in this Agreement, Employee may, directly or indirectly, own, solely as an investment,\nsecurities of any Person engaged a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-\ncounter market if Employee (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or\nindirectly, own 5% or more of any class of securities of such Person. Furthermore, nothing herein shall prevent Employee from remaining in\nthe electronics business and soliciting customers in the electronics industry so long as Employee is not participating in or soliciting on behalf\nof a Competing Business.\n(e) Employee will not make any legally impermissible statements or representations that disparage, demean, or impugn API, including\nwithout limitation any legally impermissible statements impugning the personal or professional character of any current or former director,\nofficer, or employee of API; and\n(f) During the one (1) year period following the Separation Date neither Employee nor any business in which Employee may engage or\nparticipate will (A) knowingly hire, solicit for hire or attempt to hire any employee of API, or (B) encourage\n-8-\nany employee of API to terminate such employment. For purposes of the Agreement, “Employee” means current employee as well as anyone\nemployed by API within the six (6) month period prior to the Separation Date; provided, that this provision shall not preclude Employee or any\nbusiness in which Employee may engage or participate from soliciting any such employee by means of or hiring any such employee who\nresponds to a public announcement placed by the business as long as Employee otherwise complies with the provisions of the Section 10(e).\n(g) Employee will not directly or indirectly seek to cause any person or organization to discontinue or limit its or their current\nrelationship with API.\n(h) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 10. Employee understands that a violation of this Section 10 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section 10\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect, except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n11. Successors. This Agreement shall apply to Employee, as well as to his heirs, executors, administrators, and agents. This Agreement also\nshall apply to, and inure to the benefit of API.\n12. Severability. The parties explicitly acknowledge and agree that the provisions of this Agreement are both reasonable and enforceable.\nHowever, the provisions of this Agreement are severable, and the invalidity of any one or more provisions shall not affect or limit the enforceability\nof the remaining provisions. Should any provision be held unenforceable for any reason, then such provision shall be enforced to the maximum\nextent permitted by law.\n13. Applicable Law. This Agreement shall be interpreted, enforced, and governed under the laws of the State of New York.\n14. Future Assistance. In partial exchange for the severance package, Employee agrees that he will cooperate and make himself reasonably\navailable to current API personnel in the event Employee’s assistance is needed to locate, understand, or clarify work previously performed by\nEmployee or other work-related issues relating to Employee’s employment. Employee also agrees that he will cooperate, assist, and make himself\nreasonably available to API personnel or API agents on an as-needed basis in order to respond to or address any complaint or issue raised by any\nperson or entity that does/did business with API or is/was associated with API in any way. Finally, Employee agrees that he will provide truthful and\n-9-\naccurate sworn testimony in the form of deposition, affidavit, and/or otherwise if requested by current API personnel. API will strive to keep the\nneed for future assistance to a minimum, and will reimburse Employee for reasonable out-of-pocket expenses, including, without limitation, travel\nexpenses, incurred as a result of Employee’s assistance, unless such remuneration would be inappropriate or otherwise prohibited under existing law.\n15. Nonwaiver. The waiver by API of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver\nof any subsequent breach by Employee.\n16. Jurisdiction. Any action regarding this Agreement or otherwise brought against API by Employee, Employee’s agents, assigns, heirs,\nadministrators, or executors, or by his attorney, shall be maintained in a state or federal court in Suffolk County, New York. By signing this\nAgreement, Employee expressly consents to personal jurisdiction in New York. Both parties waive the right to a jury trial.\n17. Knowledge and Understanding. Employee acknowledges that neither Employee nor his agents have disclosed information in violation of\nSections 9 or 10 and will not do so in the future. Employee further acknowledges that, in accordance with the ADEA and in compliance with the\nOlder Workers Benefit Protection Act, Employee:\n(a) Has been, and is hereby, advised to consult with an attorney prior to executing this Agreement and has had the opportunity to do so;\n(b) Is receiving consideration under this Agreement which is grater in kind and amount than that to which Employee would otherwise be\nentitled;\n(c) Has been given a period of twenty-one (21) days within which to consider this Agreement, which allows Employee to make a\nknowing, voluntary, and fully informed decision;\n(d) Has availed himself of all opportunities Employee deems necessary to make a voluntary, knowing, and fully informed decision; and\n(e) Is fully aware of his rights, and has carefully read and fully understands all provisions of this Agreement before signing.\n18. Effective Date. This Agreement may only be accepted during the twenty-one (21) day period after Employee receives this Agreement. In\nthe event Employee executes this Agreement within the twenty-one (21) days following his receipt of this Agreement (“Twenty-One Day-Period”),\nhe shall have an additional period of seven (7) days to revoke the Agreement. Any revocation shall be in writing and addressed/delivered to the\nattention of API Electronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer. This\nAgreement shall not become effective, therefore, and none of the payments set forth in this Agreement shall become due until Employee has\nexecuted the Agreement and the seven-day revocation period has expired without revocation being exercised (the “Effective Date”), except that API\nshall continue Employee’s current benefits under the Medical Plans and the Insurance Plans from the Separation Date until the Effective Date.\n- 10-\n19. Complete Agreement. This Agreement sets forth the complete agreement between the parties relating to the subjects herein. Employee\nacknowledges and agrees that, in executing this Agreement, Employee does not rely and has not relied upon any representations or statements not set\nforth herein made by API with regard to the subject matter, basis, or effect of this Agreement or otherwise. Notwithstanding the foregoing, nothing\nin this Agreement is intended to nor shall limit, supersede, nullify, or affect any other duty or responsibility Employee may have or owe to API by\nvirtue of any separate agreement or obligation.\n20. Recitals. The recitals to this Agreement are hereby incorporated into this Agreement and made a part hereof.\n21. Affiliate. As used in this Agreement, an “affiliate” of a person shall mean any person controlling, controlled by or under common control\nwith such person.\n- Remainder of Page Intentionally Left Blank; Signature Page Follows -\n-11 -\nBY SIGNING THIS RELEASE, I STATE THAT: I HAVE READ IT; I UNDERSTAND IT AND KNOW THAT I AM GIVING UP\nIMPORTANT RIGHTS; I AGREE TO ALL THE TERMS CONTAINED WITHIN THE AGREEMENT; I AM AWARE OF MY RIGHT\nTO CONSULT WITH AN ATTORNEY BEFORE SIGNING IT AND HAVE HAD THE OPPORTUNITY TO DO SO; I HAVE\nCONSULTED WITH MY ATTORNEY BEFORE SIGNING IT; I HAVE SIGNED IT KNOWINGLY AND VOLUNTARILY.\nAGREED TO BY:\n“Employee”\n“API”\nAPI NANOTRONICS CORP.\n/s/ Thomas W. Mills, Sr.\nBy:\n/s/ Stephen Pudles\nThomas W. Mills, Sr.\nPrinted Name: Stephen Pudles\nDated: 5/4/09\nIts:\nCEO\nDated:\n5-11-09\nAPI ELECTRONICS, INC.\nBy:\n/s/ Stephen Pudles\nPrinted Name: Stephen Pudles\nIts:\nCEO\nDated:\n5-11-09\n- 12-	EX-10.1 2 dex101.htm AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nExhibit 10.1\nAGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nThis AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT (this “Agreement™) is made and entered into as of the 11" day of\nMay, 2009, by and among API Nanotronics Corp., a Delaware corporation and API ELECTRONICS, INC., a Delaware corporation (collectively,\n“API”), and THOMAS W. MILLS, SR. (“Employee”).\nRECITALS:\nA. Employee’s employment with API will end effective March 19, 2009 (the “Separation Date”).\nB. Employee first received a copy of this Agreement on March 19, 2009 and received a copy of this version of the Agreement on April 28,\n2009.\nC. API enters into this Agreement based solely on Employee’s representation that this Agreement will resolve any and all claims Employee has\nor could have against API for any issue relating to his employment or the end of his employment with API and all affiliates of API and that\nEmployee has waived any right to pursue any lawsuit against API with respect to his employment, the separation of that employment, or any other\nissue that arose prior to his execution of this Agreement.\nD. In an effort to end the employment relationship on an amicable basis, and in consideration of the mutual covenants, promises, and\nobligations contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is mutually\nacknowledged, the Parties hereby agree as follows:\nAGREEMENT:\n1. Definition. Throughout this Agreement, the term “API” shall encompass the following:\n(a) API, as well as any division thereof, parent, subsidiary, affiliated entity, or related entity, predecessors, successors and assigns of any\nof the foregoing; and\n(b) Any current or former officer, director, trustee, agent, employee, shareholder, representative, insurer, or employee benefit or welfare\nprogram or plan (including administrators, trustees, fiduciaries, and insurers of such program or plan) of an entity referenced in or\nencompassed by Subparagraph 1(a).\n2. Resignations; Future Employment. Employee hereby resigns from his position as an officer of API, including without limitation, as\nPresident and Chief Operating Officer for API Nanotronics Corp., a member of API’s Board of Directors and all other officer positions and\ndirectorships he held with API, effective as of the Separation Date. All authority granted Employee by API shall be revoked as of the Separation\nDate. At API’s request, Employee shall execute any and all documents necessary to confirm Employee’s resignation from API. Employee’s\nemployment with API shall end on the Separation Date. Employee agrees that as a\ncondition of this Agreement, Employee will not seek reemployment with API at any time and should Employee apply in the future, his application\nfor employment will not be considered by API and will be null and void. Employee acknowledges that promptly after the Separation Date API is\nrequired to issue a press release announcing Employee’s resignation and promptly after the Effective Date API is required to issued a press release\nwith respect to this Agreement. Employee also acknowledges that API shall make such filings with the United States Securities and Exchange\nCommission with respect to Employee’s resignation and this Agreement as required by law and as it deems appropriate.\n3. Severance Payment and Other Consideration. AP, in consideration for the promises contained herein, agrees as follows:\n(a) API will continue to pay Employee’s weekly salary of two thousand four hundred three and 85/100 ($2403.85) (less withholdings and\ndeductions required by law) for fifty-two (52) weekly pay periods (the “Severance Period”), payable to Employee via direct deposit on API’s\nregular paydays. Such payments shall begin within 14 days after the Effective Date. The payments due to Employee pursuant to this\nSection 3(a) cannot be offset by amounts due from Employee to API pursuant to any cause of action or claim, except as set forth in\nSection 9(d) and 10(h).\n(b) API and Employee agree that no amounts are due to Employee for accrued and unpaid vacation as of the Separation Date.\n(c) API will pay the monthly lease payments of $652.00 due under Employee’s car lease with Smithtown Motors Corp. for a period of\ntwelve months from the Separation Date.\n(d) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee’s coverage under\nits medical and dental plans (the “Medical Plans”) at the same benefit level Employee received immediately prior to the Separation Date.\nNotwithstanding the foregoing, in no event will API pay for or continue Employee’s coverage under the Medical Plans during the Severance\nPeriod if Employee becomes eligible for coverage under another group health plan. After the Severance Period, Employee will no longer be\ncovered by API's Medical Plans. At that time, Employee will have any conversion rights available under the Medical Plans and as otherwise\nprovided by law, including the Comprehensive Omnibus Budget Reconciliation Act (“COBRA”). The period during which Employee will be\nentitled to continuation coverage under COBRA shall begin on the day after the Severance Period. If Employee elects to continue coverage\nunder the Medical Plans, Employee shall be responsible for the payment of premiums, as permitted by law. Employee agrees to immediately\nnotify API in writing, if Employee becomes eligible for such coverage under another group health plan. Such notice shall be given to API\nElectronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer.\n(e) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee’s coverage under\nits Short Term\n-\nDisability, Long Term Disability, Group Life Insurance and the Accidental Death and Dismemberment Plans (“Insurance Plans”). After the\nSeverance Period, Employee will have any conversion rights available under the Insurance Plans.\n(f) Employee shall not participate in the API Retirement Savings Plan after the Separation Date. Employee will be entitled to benefits\nearned and vested (if any) prior to the Separation Date pursuant to the applicable API Retirement Savings Plan provisions.\n(g) Employee will not be eligible for a bonus for the Fiscal Year 2009 or anytime thereafter, or any portion thereof.\nThe payments described in this Section 3 reflect consideration provided to Employee over and above anything of value to which Employee is\nalready entitled. In paying the amount specified in this Section 3, API makes no representation as to the tax consequences or liability arising\nfrom said payment. Moreover, the parties understand and agree that any tax consequences and/or liability arising from the payment to\nEmployee shall be the sole responsibility of Employee. To this extent, Employee acknowledges and agrees that he will pay any and all federal,\nstate and local income tax which may be determined to be due in connection with the payments described in this Section 3. Employee also\nagrees to indemnify API from all tax and/or other liability (including, but not limited to, fines, penalties, interest, and costs) arising from or\nrelating to the payment described in this Section 3 and/or imposed by the Internal Revenue Service, the State of New York, or any other taxing\nagency or tribunal as a result of API’s failure to withhold taxes on the payments described in this Section 3 or any portion thereof.\nEmployee acknowledges and agrees that the consideration and sums included in this Section 3 are the maximum sums ever to be due to\nEmployee from API, and he hereby relinquishes and waives any rights to other forms of payment or benefits under any other agreement\nbetween Employee and API, whether written, oral, express or implied.\n(h) Employee shall be entitled to keep desk, credenza and three matching chairs that formerly belonged to the former owner of Solid\nState Power. Employee shall arrange to pick-up said items, within seven (7) days of the Effective Date (as defined below)\n(i) API shall pay Employee $35,000 in full and complete satisfaction of all claims of Employee to shares of common stock of API or any\nother securities of API. Such amount shall be paid to employee by check and sent to Employee by API on the day following the Effective\nDate.\n4. General Release and Waiver from Employee. In consideration for the payments reflected in Section 3, Employee (for himself, his agents,\nassigns, heirs, executors, and administrators) hereby releases and discharges API from any claim, demand, action, or cause of action, known or\nunknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims relating to,\narising out of, or in any\n_3-\nway connected with his employment with or termination of employment from API including, without limitation, any claim, demand, action, cause of\naction, including money damages and claims for attorneys’ fees, based on but not limited to:\n(a) The Age Discrimination in Employment Act of 1967, as amended (“ADEA”), 29 U.S.C. § 621, et seq.;\n(b) The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.;\n(c) The Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq.;\n(d) The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq.;\n(e) The Civil Rights Act of 1866 and 1964, as amended, 42 U.S.C. § 1981,\n(f) The Employee Retirement Security Act of 1973, 29 U.S.C. § 1001, et seq;\n(g) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), et seq.;\n(h) The Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.;\n(i) The Fair Labor Standards Act, 29 U.S.C. § 201 et seq;\n(j) The New York Human Rights Law;\n(k) The New York Civil Rights Law;\n(1) The New York State Executive Law;\n(m) The New York City Administrative Code;\n(n) Any existing or potential entitlement under any API program or plan, including wages or other paid leave;\n(o) Any existing or potential agreement, contract, representation, policy, procedure, or statement (whether any of the foregoing are\nexpress or implied, oral or written);\n(p) Claims arising under any other federal, state or local fair employment practices law, disability benefits law, and any other employee\nor labor relations statute, executive order, law, ordinance, regulation or order and any duty or other employment-related obligation, including\nany claims arising from any other type of statute, executive order, law or ordinance,\n(q) Claims arising from contract or public policy, as well as tort, tortious cause of conduct, breach of contract, intentional infliction of\nemotional distress, negligence, discrimination, harassment, and retaliation, together with all claims for monetary and equitable relief, punitive\nand compensatory relief and attorneys’ fees and costs; and\n4-\n(r) The New York Constitution and/or the United States Constitution.\nEmployee understands and agrees that he is releasing API from any and all claims by which he is giving up the opportunity to recover any\ncompensation, damages, or any other form of relief in any proceeding brought by Employee or on Employee’s behalf. Employee understands\nthat this release expressly includes all claims that could have been raised in a federal, state, county or local court and that this release also\nincludes all claims for attorneys’ fees and any other remedy that could have been sought in connection with any of the released claims.\nNotwithstanding the foregoing, this Agreement is not intended to operate as a waiver of any retirement or pension benefits that are vested, the\neligibility and entitlement to which shall be governed by the terms of the applicable plan. Nor shall this Agreement operate to waive or bar any\nclaim or right which - may not by operation of law or regulation be waived or barred.\n5. Release and Waiver from API. In consideration for the covenants and agreements of Employee set forth in this Agreement, API on behalf\nof itself and its affiliates, successors and assigns hereby releases and discharges Employee from any claim, demand, action, or cause of action,\nknown or unknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims\nrelating to, arising out of, or in any way connected with Employee’s employment with or termination of employment from API, except that this\nrelease shall not include any claim, demand, action, or cause of action, known or unknown, arising out of any violation or alleged violation of law or\nany material violation or alleged material violation of a company policy of API or any of its affiliates, which arose at any time from the beginning of\ntime to the date Employee executes this Agreement.\n6. Mutual Disclaimer. Employee states under penalties of perjury that - at the time he executes this Agreement - Employee is not aware of any\nfacts or incidents of wrongdoing, liability, harassment, discrimination or retaliation by API from the beginning of time up to the date Employee signs\nthe Agreement. The parties further understand that the offer of severance creates no precedent for API in dealing with any future separations.\n7. No Other Claims Pending. Employee represents and warrants that, with the possible exception of a claim for unemployment\ncompensation, Employee has not filed or otherwise initiated any complaint, cause of action or claim against API based on events occurring prior to\nand including the date he executes this Agreement. Employee further represents and warrants that, as of the date he executes this Agreement,\nEmployee is unaware of any outstanding complaints, causes of action or claims against API that involve or relate in any way to Employee.\n8. Job References. Employee shall direct job references to API’s Corporate Director of Human Resources. Such references shall be limited to\nlast position held and dates of employment.\n_5-\n9. Confidentiality.\n(a) Employee recognizes and understands the importance of maintaining each and every term of this Agreement in a confidential manner,\nuntil such time as API is required to disclose such terms to the public (the “Disclosure Date”). Employee further understands that prior to the\nDisclosure Date confidentiality is a material and critical aspect of this Agreement and is of paramount concern to all involved. Until the\nDisclosure Date, Employee agrees as follows. Employee agrees to keep the terms of this Agreement confidential and will not disclose any\ninformation concerning it to anyone except his spouse, tax advisor, legal counsel, or anyone required by law to know the contents of the\nAgreement; provided, that Employee shall inform any of these specified persons that Employee is bound by a confidentiality covenant and\nprior to any such disclosure to any of such persons, require that such person agree to abide by the terms of such covenant and not disclose any\ninformation concerning the Agreement. Employee agrees that, in the event he is compelled by court order or process to disclose any terms of\nthis Agreement, Employee shall immediately notify the undersigned representative of API in writing at least seven (7) days prior to the\ndisclosure.\n(b) Employee further agrees that he will not contact any employees or business associates of API, including but not limited to field\nrepresentatives, independent sales representatives, or present or past customers of API, concerning his employment, the cessation of his\nemployment, or any information contained within this Agreement.\n(c) If asked about the terms of any severance, Employee agrees that he will decline comment and will make no comments or physical\ngestures indicating that he has recovered monetary sums from API. Employee also agrees that he has not (i) disclosed his efforts to seek\nadditional severance or money with any current or former API employee, (ii) disclosed legal theories or allegations of discrimination or\nwrongdoing by API with any current or former API employee, or (iii) talked to or encouraged any current or former API employee about filing\na lawsuit, cause of action or claim against API.\n(d) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 9. Employee understands that a violation of this Section 9 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section9\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n-6-\n10. Non-Disclosure/Return of Property/Non-Competition.\n(a) Employee agrees that the information he obtained as a result of his position with API was sensitive, private, and/or confidential\ninformation. Employee agrees not to use or disclose (directly or indirectly) confidential, sensitive, or proprietary information concerning API\nobtained by him during his employment with API. For purposes of this Agreement, “Proprietary Information” includes, without limitation, all\nmaterials and information (whether written or not) about API’s current, prior, or prospective services or business activities, formulae, products,\nprocesses, research, plans, system designs, system applications, customers, affiliates, personnel, finances, purchasing, sales, marketing and\nmarkets, accounting, customer lists, business contracts, agreements, licenses, costs, pricing, profits, improvements, discoveries, software,\nbusiness methods and formulas, inventions, and other business aspects of API (including, but not limited to, information concerning, relating\nto, or arising out of relationships with customers, independent sales agents, lenders, investors or other business affiliates), which are not\ngenerally known and accessible to the public at large or which provide API with a competitive advantage. Employee hereby agrees that: (i) he\nhas kept and will keep all such information confidential; and (ii) he will not volunteer or disclose any such information to anyone without first\nobtaining express authorization to do so from the undersigned representative of API. Notwithstanding the foregoing, nothing in this Agreement\nshall be intended to limit Employee’s ability to provide information to legal counsel for API or pursuant to a court order. Moreover, this\nSection 10 shall not encompass or apply to information which is in the public domain, which becomes part of the public domain through no\nact, omission, or fault of Employee.\n(b) By signing this Agreement, Employee agrees that he has not disclosed or used information in violation of this provision and that he\nwill not do so in the future. API does not intend to limit Employee in any way from seeking employment or conducting business so long as\nEmployee does not use or disclose the proprietary information covered by this Section 10 and so long as Employee does not violate any other\nprovision contained within this Agreement. Employee certifies and declares that he already has returned or shall return to the custody of API\nall Proprietary Information, company property (including without limitation any laptop computer, cellular telephone, and Blackberry or similar\ndevices) and Company Documents - as well as any copies of Proprietary Information, company property, and Company Documents - in his\npossession by the Separation Date. The phrase “Company Documents” is defined to include any writings, documents, contracts, records, files,\ntape recordings, correspondence, photographs, communications, summaries, data, notes, memoranda, diskettes, business plans, price books, or\nany other source containing information which relates to or references API and which was provided by API or obtained as a result of\nEmployee’s relationship/employment with API.\n(c) During the one (1) year period following the Separation Date (the “Restricted Period”), Employee will not, whether on Employee’s\nown behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business\norganization, entity or enterprise whatsoever (“Person”), directly or indirectly:\n(i) engage in any business that competes with the businesses of API or its affiliates (including, without limitation, businesses which\nAPI or its affiliates have specific plans to conduct in the future and in connection with which API and/or its affiliates have expended\nmore than nominal time and/or capital and as to which plans Employee is aware) in any geographical area in which API or its affiliates\nproduces, manufactures, sells, leases, rents, licenses or otherwise provides its products or services, (a “Competitive Business”);\n_7-\n(ii) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which engages in a Competitive Business;\n(iii) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as\nan individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or\n(iv) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this\nAgreement) between API or any of its affiliates and customers, clients, contractors, managers, consultants, suppliers or investors of API\nor its affiliates.\n(d) Notwithstanding anything to the contrary in this Agreement, Employee may, directly or indirectly, own, solely as an investment,\nsecurities of any Person engaged a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-\ncounter market if Employee (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or\nindirectly, own 5% or more of any class of securities of such Person. Furthermore, nothing herein shall prevent Employee from remaining in\nthe electronics business and soliciting customers in the electronics industry so long as Employee is not participating in or soliciting on behalf\nof a Competing Business.\n(e) Employee will not make any legally impermissible statements or representations that disparage, demean, or impugn API, including\nwithout limitation any legally impermissible statements impugning the personal or professional character of any current or former director,\nofficer, or employee of API; and\n(f) During the one (1) year period following the Separation Date neither Employee nor any business in which Employee may engage or\nparticipate will (A) knowingly hire, solicit for hire or attempt to hire any employee of API, or (B) encourage\n_8-\nany employee of API to terminate such employment. For purposes of the Agreement, “Employee” means current employee as well as anyone\nemployed by API within the six (6) month period prior to the Separation Date; provided, that this provision shall not preclude Employee or any\nbusiness in which Employee may engage or participate from soliciting any such employee by means of or hiring any such employee who\nresponds to a public announcement placed by the business as long as Employee otherwise complies with the provisions of the Section 10(e).\n(g) Employee will not directly or indirectly seek to cause any person or organization to discontinue or limit its or their current\nrelationship with API.\n(h) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 10. Employee understands that a violation of this Section 10 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section 10\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect, except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n11. Successors. This Agreement shall apply to Employee, as well as to his heirs, executors, administrators, and agents. This Agreement also\nshall apply to, and inure to the benefit of API.\n12. Severability. The parties explicitly acknowledge and agree that the provisions of this Agreement are both reasonable and enforceable.\nHowever, the provisions of this Agreement are severable, and the invalidity of any one or more provisions shall not affect or limit the enforceability\nof the remaining provisions. Should any provision be held unenforceable for any reason, then such provision shall be enforced to the maximum\nextent permitted by law.\n13. Applicable Law. This Agreement shall be interpreted, enforced, and governed under the laws of the State of New York.\n14. Future Assistance. In partial exchange for the severance package, Employee agrees that he will cooperate and make himself reasonably\navailable to current API personnel in the event Employee’s assistance is needed to locate, understand, or clarify work previously performed by\nEmployee or other work-related issues relating to Employee’s employment. Employee also agrees that he will cooperate, assist, and make himself\nreasonably available to API personnel or API agents on an as-needed basis in order to respond to or address any complaint or issue raised by any\nperson or entity that does/did business with API or is/was associated with API in any way. Finally, Employee agrees that he will provide truthful and\n9.\naccurate sworn testimony in the form of deposition, affidavit, and/or otherwise if requested by current API personnel. API will strive to keep the\nneed for future assistance to a minimum, and will reimburse Employee for reasonable out-of-pocket expenses, including, without limitation, travel\nexpenses, incurred as a result of Employee’s assistance, unless such remuneration would be inappropriate or otherwise prohibited under existing law.\n15. Nonwaiver. The waiver by API of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver\nof any subsequent breach by Employee.\n16. Jurisdiction. Any action regarding this Agreement or otherwise brought against API by Employee, Employee’s agents, assigns, heirs,\nadministrators, or executors, or by his attorney, shall be maintained in a state or federal court in Suffolk County, New York. By signing this\nAgreement, Employee expressly consents to personal jurisdiction in New York. Both parties waive the right to a jury trial.\n17. Knowledge and Understanding. Employee acknowledges that neither Employee nor his agents have disclosed information in violation of\nSections 9 or 10 and will not do so in the future. Employee further acknowledges that, in accordance with the ADEA and in compliance with the\nOlder Workers Benefit Protection Act, Employee:\n(a) Has been, and is hereby, advised to consult with an attorney prior to executing this Agreement and has had the opportunity to do so;\n(b) Is receiving consideration under this Agreement which is grater in kind and amount than that to which Employee would otherwise be\nentitled;\n(c) Has been given a period of twenty-one (21) days within which to consider this Agreement, which allows Employee to make a\nknowing, voluntary, and fully informed decision;\n(d) Has availed himself of all opportunities Employee deems necessary to make a voluntary, knowing, and fully informed decision; and\n(e) Is fully aware of his rights, and has carefully read and fully understands all provisions of this Agreement before signing.\n18. Effective Date. This Agreement may only be accepted during the twenty-one (21) day period after Employee receives this Agreement. In\nthe event Employee executes this Agreement within the twenty-one (21) days following his receipt of this Agreement (“Twenty-One Day-Period”),\nhe shall have an additional period of seven (7) days to revoke the Agreement. Any revocation shall be in writing and addressed/delivered to the\nattention of API Electronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer. This\nAgreement shall not become effective, therefore, and none of the payments set forth in this Agreement shall become due until Employee has\nexecuted the Agreement and the seven-day revocation period has expired without revocation being exercised (the “Effective Date), except that API\nshall continue Employee’s current benefits under the Medical Plans and the Insurance Plans from the Separation Date until the Effective Date.\n-10-\n19. Complete Agreement. This Agreement sets forth the complete agreement between the parties relating to the subjects herein. Employee\nacknowledges and agrees that, in executing this Agreement, Employee does not rely and has not relied upon any representations or statements not set\nforth herein made by API with regard to the subject matter, basis, or effect of this Agreement or otherwise. Notwithstanding the foregoing, nothing\nin this Agreement is intended to nor shall limit, supersede, nullify, or affect any other duty or responsibility Employee may have or owe to API by\nvirtue of any separate agreement or obligation.\n20. Recitals. The recitals to this Agreement are hereby incorporated into this Agreement and made a part hereof.\n21. Affiliate. As used in this Agreement, an “affiliate” of a person shall mean any person controlling, controlled by or under common control\nwith such person.\n- Remainder of Page Intentionally Left Blank; Signature Page Follows -\n-11-\nBY SIGNING THIS RELEASE, I STATE THAT: I HAVE READ IT; I UNDERSTAND IT AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS; I AGREE TO ALL THE TERMS CONTAINED WITHIN THE AGREEMENT; I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING IT AND HAVE HAD THE OPPORTUNITY TO DO SO; I HAVE CONSULTED WITH MY ATTORNEY BEFORE SIGNING IT; I HAVE SIGNED IT KNOWINGLY AND VOLUNTARILY. AGREED TO BY:\n“Employee”\n/s/ Thomas W. Mills, Sr.\nThomas W. Mills, Sr.\nDated: 5/4/09\n-12-\n“API”\nAPI NANOTRONICS CORP.\nBy: /s/ Stephen Pudles\nPrinted Name: Stephen Pudles\nIts: CEO\nDated: 5-11-09\nAPI ELECTRONICS, INC.\nBy: /s/ Stephen Pudles\nPrinted Name: Stephen Pudles\nIts: CEO\nDated: 5-11-09	EX-10.1 2 dex101.htm AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nExhibit 10.1\nAGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nThis AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT (this "Agreement") is made and entered into as of the 11th day of\nMay,\n2009, by and among API Nanotronics Corp., a Delaware corporation and API ELECTRONICS, INC., a Delaware corporation (collectively,\n"API"), and THOMAS W. MILLS, SR. ("Employee").\nRECITALS:\nA. Employee's employment with API will end effective March 19, 2009 (the "Separation Date")\nB. Employee first received a copy of this Agreement on March 19, 2009 and received a copy of this version of the Agreement on April 28,\n2009.\nC. API enters into this Agreement based solely on Employee's representation that this Agreement will resolve any and all claims Employee has\nor could have against API for any issue relating to his employment or the end of his employment with API and all affiliates of API and that\nEmployee has waived any right to pursue any lawsuit against API with respect to his employment, the separation of that employment, or any other\nissue that arose prior to his execution of this Agreement.\nD. In an effort to end the employment relationship on an amicable basis, and in consideration of the mutual covenants, promises, and\nobligations contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is mutually\nacknowledged, the Parties hereby agree as follows:\nAGREEMENT:\n1. Definition. Throughout this Agreement, the term "API" shall encompass the following:\n(a) API, as well as any division thereof, parent, subsidiary, affiliated entity, or related entity, predecessors, successors and assigns of any\nof the foregoing; and\n(b) Any current or former officer, director, trustee, agent, employee, shareholder, representative, insurer, or employee benefit or welfare\nprogram or plan (including administrators, trustees, fiduciaries, and insurers of such program or plan) of an entity referenced in or\nencompassed by Subparagraph 1(a).\n2. Resignations; Future Employment. Employee hereby resigns from his position as an officer of API, including without limitation, as\nPresident and Chief Operating Officer for API Nanotronics Corp., a member of API's Board of Directors and all other officer positions and\ndirectorships he held with API, effective as of the Separation Date. All authority granted Employee by API shall be revoked as of the Separation\nDate. At API's request, Employee shall execute any and all documents necessary to confirm Employee's resignation from API. Employee's\nemployment with API shall end on the Separation Date. Employee agrees that as a\ncondition of this Agreement, Employee will not seek reemployment with API at any time and should Employee apply in the future, his application\nfor employment will not be considered by API and will be null and void. Employee acknowledges that promptly after the Separation Date API is\nrequired to issue a press release announcing Employee's resignation and promptly after the Effective Date API is required to issued a press release\nwith respect to this Agreement. Employee also acknowledges that API shall make such filings with the United States Securities and Exchange\nCommission with respect to Employee's resignation and this Agreement as required by law and as it deems appropriate.\n3.\nSeverance Payment and Other Consideration. API, in consideration for the promises contained herein, agrees as follows:\n(a) API will continue to pay Employee's weekly salary of two thousand four hundred three and 85/100 ($2403.85) (less withholdings and\ndeductions required by law) for fifty-two (52) weekly pay periods (the "Severance Period"), payable to Employee via direct deposit on API's\nregular paydays. Such payments shall begin within 14 days after the Effective Date. The payments due to Employee pursuant to this\nSection 3(a) cannot be offset by amounts due from Employee to API pursuant to any cause of action or claim, except as set forth in\nSection 9(d) and 10(h).\n(b) API and Employee agree that no amounts are due to Employee for accrued and unpaid vacation as of the Separation Date.\n(c) API will pay the monthly lease payments of $652.00 due under Employee's car lease with Smithtown Motors Corp. for a period\nof\ntwelve months from the Separation Date.\n(d) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee's coverage under\nits medical and dental plans (the "Medical Plans") at the same benefit level Employee received immediately prior to the Separation Date.\nNotwithstanding the foregoing, in no event will API pay for or continue Employee's coverage under the Medical Plans during the Severance\nPeriod\nif\nEmployee becomes eligible for coverage under another group health plan. After the Severance Period, Employee will no longer be\ncovered by API's Medical Plans. At that time, Employee will have any conversion rights available under the Medical Plans and as otherwise\nprovided by law, including the Comprehensive Omnibus Budget Reconciliation Act ("COBRA"). The period during which Employee will be\nentitled to continuation coverage under COBRA shall begin on the day after the Severance Period. If Employee elects to continue coverage\nunder the Medical Plans, Employee shall be responsible for the payment of premiums, as permitted by law. Employee agrees to immediately\nnotify API in writing, if Employee becomes eligible for such coverage under another group health plan. Such notice shall be given to API\nElectronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer.\n(e) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee's coverage under\nits Short Term\n-2-\nDisability, Long Term Disability, Group Life Insurance and the Accidental Death and Dismemberment Plans ("Insurance Plans"). After the\nSeverance Period, Employee will have any conversion rights available under the Insurance Plans.\n(f) Employee shall not participate in the API Retirement Savings Plan after the Separation Date. Employee will be entitled to benefits\nearned and vested (if any) prior to the Separation Date pursuant to the applicable API Retirement Savings Plan provisions.\n(g) Employee will not be eligible for a bonus for the Fiscal Year 2009 or anytime thereafter, or any portion thereof.\nThe payments described in this Section 3 reflect consideration provided to Employee over and above anything of value to which Employee is\nalready entitled. In paying the amount specified in this Section 3, API makes no representation as to the tax consequences or liability arising\nfrom said payment. Moreover, the parties understand and agree that any tax consequences and/or liability arising from the payment to\nEmployee shall be the sole responsibility of Employee. To this extent, Employee acknowledges and agrees that he will pay any and all federal,\nstate and local income tax which may be determined to be due in connection with the payments described in this Section 3. Employee also\nagrees to indemnify API from all tax and/or other liability (including, but not limited to, fines, penalties, interest, and costs) arising from or\nrelating to the payment described in this Section 3 and/or imposed by the Internal Revenue Service, the State of New York, or any other taxing\nagency or tribunal as a result of API's failure to withhold taxes on the payments described in this Section 3 or any portion thereof.\nEmployee acknowledges and agrees that the consideration and sums included in this Section 3 are the maximum sums ever to be due to\nEmployee from API, and he hereby relinquishes and waives any rights to other forms of payment or benefits under any other agreement\nbetween Employee and API, whether written, oral, express or implied.\n(h) Employee shall be entitled to keep desk, credenza and three matching chairs that formerly belonged to the former owner of Solid\nState Power. Employee shall arrange to pick-up said items, within seven (7) days of the Effective Date (as defined below)\n(i) API shall pay Employee $35,000 in full and complete satisfaction of all claims of Employee to shares of common stock of API or any\nother securities of API. Such amount shall be paid to employee by check and sent to Employee by API on the day following the Effective\nDate.\n4.\nGeneral Release and Waiver from Employee. In consideration for the payments reflected in Section 3, Employee (for himself, his agents,\nassigns, heirs, executors, and administrators) hereby releases and discharges API from any claim, demand, action, or cause of action, known or\nunknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims relating to,\narising out of, or in any\n-3-\nway connected with his employment with or termination of employment from API including, without limitation, any claim, demand, action, cause of\naction, including money damages and claims for attorneys' fees, based on but not limited to:\n(a) The Age Discrimination in Employment Act of 1967, as amended ("ADEA"), 29 U.S.C. S 621, et seq.;\n(b) The Americans with Disabilities Act of 1990, 42 U.S.C. S 12101, et seq.;\n(c) The Rehabilitation Act of 1973, as amended, 29 U.S.C. S 701, et seg.;\n(d) The Family and Medical Leave Act of 1993, 29 U.S.C. 8 2601, et seq.;\n(e) The Civil Rights Act of 1866 and 1964, as amended, 42 U.S.C. 8 1981;\n(f) The Employee Retirement Security Act of 1973, 29 U.S.C. S 1001, et seq.;\n(g) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. S 2000(e), et seg.;\n(h) The Fair Credit Reporting Act, 15 U.S.C. S 1681, et seq.;\n(i) The Fair Labor Standards Act, 29 U.S.C. S 201 et seg;\n(j) The New York Human Rights Law;\n(k) The New York Civil Rights Law;\n(1) The New York State Executive Law;\n(m) The New York City Administrative Code;\n(n) Any existing or potential entitlement under any API program or plan, including wages or other paid leave;\n(o) Any existing or potential agreement, contract, representation, policy, procedure, or statement (whether any of the foregoing are\nexpress or implied, oral or written);\n(p) Claims arising under any other federal, state or local fair employment practices law, disability benefits law, and any other employee\nor labor relations statute, executive order, law, ordinance, regulation or order and any duty or other employment-related obligation, including\nany claims arising from any other type of statute, executive order, law or ordinance,\n(q) Claims arising from contract or public policy, as well as tort, tortious cause of conduct, breach of contract, intentional infliction of\nemotional distress, negligence, discrimination, harassment, and retaliation, together with all claims for monetary and equitable relief, punitive\nand compensatory relief and attorneys' fees and costs; and\n-4-\n(r) The New York Constitution and/or the United States Constitution.\nEmployee understands and agrees that he is releasing API from any and all claims by which he is giving up the opportunity to recover any\ncompensation, damages, or any other form of relief in any proceeding brought by Employee or on Employee's behalf. Employee understands\nthat this release expressly includes all claims that could have been raised in a federal, state, county or local court and that this release also\nincludes all claims for attorneys' fees and any other remedy that could have been sought in connection with any of the released claims.\nNotwithstanding the foregoing, this Agreement is not intended to operate as a waiver of any retirement or pension benefits that are vested, the\neligibility and entitlement to which shall be governed by the terms of the applicable plan. Nor shall this Agreement operate to waive or bar any\nclaim or right which may not by operation of law or regulation be waived or barred.\n5. Release and Waiver from API. In consideration for the covenants and agreements of Employee set forth in this Agreement, API on behalf\nof itself and its affiliates, successors and assigns hereby releases and discharges Employee from any claim, demand, action, or cause of action,\nknown or unknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims\nrelating to, arising out of, or in any way connected with Employee's employment with or termination of employment from API, except that this\nrelease shall not include any claim, demand, action, or cause of action, known or unknown, arising out of any violation or alleged violation of law or\nany material violation or alleged material violation of a company policy of API or any of its affiliates, which arose at any time from the beginning of\ntime to the date Employee executes this Agreement.\n6.\nMutual Disclaimer. Employee states under penalties of perjury that at the time he executes this Agreement Employee is not aware of any\nfacts or incidents of wrongdoing, liability, harassment, discrimination or retaliation by API from the beginning of time up to the date Employee signs\nthe Agreement. The parties further understand that the offer of severance creates no precedent for API in dealing with any future separations.\n7.\nNo Other Claims Pending. Employee represents and warrants that, with the possible exception of a claim for unemployment\ncompensation, Employee has not filed or otherwise initiated any complaint, cause of action or claim against API based on events occurring prior to\nand including the date he executes this Agreement. Employee further represents and warrants that, as of the date he executes this Agreement,\nEmployee is unaware of any outstanding complaints, causes of action or claims against API that involve or relate in any way to Employee.\n8.\nJob References. Employee shall direct job references to API's Corporate Director of Human Resources. Such references shall be limited to\nlast position held and dates of employment.\n-5-\n9. Confidentiality.\n(a) Employee recognizes and understands the importance of maintaining each and every term of this Agreement in a confidential manner,\nuntil such time as API is required to disclose such terms to the public (the "Disclosure Date"). Employee further understands that prior to the\nDisclosure Date confidentiality is a material and critical aspect of this Agreement and is of paramount concern to all involved. Until the\nDisclosure Date, Employee agrees as follows. Employee agrees to keep the terms of this Agreement confidential and will not disclose any\ninformation concerning it to anyone except his spouse, tax advisor, legal counsel, or anyone required by law to know the contents of the\nAgreement; provided, that Employee shall inform any of these specified persons that Employee is bound by a confidentiality covenant and\nprior to any such disclosure to any of such persons, require that such person agree to abide by the terms of such covenant and not disclose\nany\ninformation concerning the Agreement. Employee agrees that, in the event he is compelled by court order or process to disclose any terms of\nthis Agreement, Employee shall immediately notify the undersigned representative of API in writing at least seven (7) days prior to the\ndisclosure.\n(b) Employee further agrees that he will not contact any employees or business associates of API, including but not limited to field\nrepresentatives, independent sales representatives, or present or past customers of API, concerning his employment, the cessation of his\nemployment, or any information contained within this Agreement.\n(c) If asked about the terms of any severance, Employee agrees that he will decline comment and will make no comments or physical\ngestures indicating that he has recovered monetary sums from API. Employee also agrees that he has not (i) disclosed his efforts to seek\nadditional severance or money with any current or former API employee, (ii) disclosed legal theories or allegations of discrimination or\nwrongdoing by API with any current or former API employee, or (iii) talked to or encouraged any current or former API employee about filing\na lawsuit, cause of action or claim against API.\n(d) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 9. Employee understands that a violation of this Section 9 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section9\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shal be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n-6-\n10. Non-Disclosure/Return of Property/Non-Competition.\n(a) Employee agrees that the information he obtained as a result of his position with API was sensitive, private, and/or confidential\ninformation. Employee agrees not to use or disclose (directly or indirectly) confidential, sensitive, or proprietary information concerning API\nobtained by him during his employment with API. For purposes of this Agreement, "Proprietary Information" includes, without limitation, all\nmaterials and information (whether written or not) about API's current, prior, or prospective services or business activities, formulae, products,\nprocesses, research, plans, system designs, system applications, customers, affiliates, personnel, finances, purchasing, sales, marketing and\nmarkets, accounting, customer lists, business contracts, agreements, licenses, costs, pricing, profits, improvements, discoveries, software,\nbusiness methods and formulas, inventions, and other business aspects of API (including, but not limited to, information concerning, relating\nto, or arising out of relationships with customers, independent sales agents, lenders, investors or other business affiliates), which are not\ngenerally known and accessible to the public at large or which provide API with a competitive advantage. Employee hereby agrees that: (i) he\nhas kept and will keep all such information confidential; and (ii) he will not volunteer or disclose any such information to anyone without first\nobtaining express authorization to do so from the undersigned representative of API. Notwithstanding the foregoing, nothing in this Agreement\nshall be intended to limit Employee's ability to provide information to legal counsel for API or pursuant to a court order. Moreover, this\nSection 10 shall not encompass or apply to information which is in the public domain, which becomes part of the public domain through no\nact, omission, or fault of Employee.\n(b) By signing this Agreement, Employee agrees that he has not disclosed or used information in violation of this provision and that he\nwill not do so in the future. API does not intend to limit Employee in any way from seeking employment or conducting business so long as\nEmployee does not use or disclose the proprietary information covered by this Section 10 and so long as Employee does not violate any other\nprovision contained within this Agreement. Employee certifies and declares that he already has returned or shall return to the custody of API\nall Proprietary Information, company property (including without limitation any laptop computer, cellular telephone, and Blackberry or similar\ndevices) and Company Documents as well as any copies of Proprietary Information, company property, and Company Documents in his\npossession by the Separation Date. The phrase "Company Documents" is defined to include any writings, documents, contracts, records, files,\ntape recordings, correspondence, photographs, communications, summaries, data, notes, memoranda, diskettes, business plans, price books, or\nany other source containing information which relates to or references API and which was provided by API or obtained as a result of\nEmployee's relationship/employmen with API.\n(c) During the one (1) year period following the Separation Date (the "Restricted Period"), Employee will not, whether on Employee's\nown behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business\norganization, entity or enterprise whatsoever ("Person"), directly or indirectly:\n(i) engage in any business that competes with the businesses of API or its affiliates (including, without limitation, businesses which\nAPI or its affiliates have specific plans to conduct in the future and in connection with which API and/or its affiliates have expended\nmore than nominal time and/or capital and as to which plans Employee is aware) in any geographical area in which API or its affiliates\nproduces, manufactures, sells, leases, rents, licenses or otherwise provides its products or services, (a "Competitive Business");\n-7-\n(ii) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which engages in a Competitive Business;\n(iii) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly,\nas\nan individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or\n(iv) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this\nAgreement) between API or any of its affiliates and customers, clients, contractors, managers, consultants, suppliers or investors of API\nor its affiliates.\n(d) Notwithstanding anything to the contrary in this Agreement, Employee may, directly or indirectly, own, solely as an investment,\nsecurities of any Person engaged a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-\ncounter market if Employee (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or\nindirectly, own 5% or more of any class of securities of such Person. Furthermore, nothing herein shall prevent Employee from remaining in\nthe electronics business and soliciting customers in the electronics industry so long as Employee is not participating in or soliciting on behalf\nof a Competing Business.\n(e) Employee will not make any legally impermissible statements or representations that disparage, demean, or impugn API, including\nwithout limitation any legally impermissible statements impugning the personal or professional character of any current or former director,\nofficer, or employee of API; and\n(f) During the one (1) year period following the Separation Date neither Employee nor any business in which Employee may engage or\nparticipate will (A) knowingly hire, solicit for hire or attempt to hire any employee of API, or (B) encourage\n-8-\nany employee of API to terminate such employment. For purposes of the Agreement, "Employee" means current employee as well as anyone\nemployed by API within the six (6) month period prior to the Separation Date; provided, that this provision shall not preclude Employee or any\nbusiness in which Employee may engage or participate from soliciting any such employee by means of or hiring any such employee who\nresponds to a public announcement placed by the business as long as Employee otherwise complies with the provisions of the Section 10(e).\n(g) Employee will not directly or indirectly seek to cause any person or organization to discontinue or limit its or their current\nrelationship with API.\n(h) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 10. Employee understands that a violation of this Section 10 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section 10\nor\nany portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect, except that API will be relieved of any obligation to make further payment(s) set forth in Section\n3.\n11. Successors. This Agreement shall apply to Employee, as well as to his heirs, executors, administrators, and agents. This Agreement also\nshall apply to, and inure to the benefit of API.\n12. Severability. The parties explicitly acknowledge and agree that the provisions of this Agreement are both reasonable and enforceable.\nHowever,\nthe\nprovisions\nof\nthis\nAgreement\nare\nseverable,\nand\nthe\ninvalidity\nof\nany\none\nor\nmore\nprovisions\nshall\nnot\naffect\nor\nlimit\nthe\nenforceability\nof the remaining provisions. Should any provision be held unenforceable for any reason, then such provision shall be enforced to the maximum\nextent permitted by law.\n13. Applicable Law. This Agreement shall be interpreted, enforced, and governed under the laws of the State of New York.\n14. Future Assistance. In partial exchange for the severance package, Employee agrees that he will cooperate and make himself reasonably\navailable to current API personnel in the event Employee's assistance is needed to locate, understand, or clarify work previously performed by\nEmployee or other work-related issues relating to Employee's employment. Employee also agrees that he will cooperate, assist, and make himself\nreasonably available to API personnel or API agents on an as-needed basis in order to respond to or address any complaint or issue raised by any\nperson or entity that does/did business with API or is/was associated with API in any way. Finally, Employee agrees that he will provide truthful and\n-9-\naccurate sworn testimony in the form of deposition, affidavit, and/or otherwise if requested by current API personnel. API will strive to keep\nthe\nneed for future assistance to a minimum, and will reimburse Employee for reasonable out-of-pocket expenses, including, without limitation, travel\nexpenses, incurred as a result of Employee's assistance, unless such remuneration would be inappropriate or otherwise prohibited under existing law.\n15. Nonwaiver. The waiver by API of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver\nof any subsequent breach by Employee.\n16. Jurisdiction. Any action regarding this Agreement or otherwise brought against API by Employee, Employee's agents, assigns, heirs,\nadministrators, or executors, or by his attorney, shall be maintained in a state or federal court in Suffolk County, New York. By signing this\nAgreement, Employee expressly consents to personal jurisdiction in New York. Both parties waive the right to a jury trial.\n17. Knowledge and Understanding. Employee acknowledges that neither Employee nor his agents have disclosed information in violation of\nSections 9 or 10 and will not do so in the future. Employee further acknowledges that, in accordance with the ADEA and in compliance with the\nOlder Workers Benefit Protection Act, Employee:\n(a) Has been, and is hereby, advised to consult with an attorney prior to executing this Agreement and has had the opportunity to do so;\n(b) Is receiving consideration under this Agreement which is grater in kind and amount than that to which Employee would otherwise be\nentitled;\n(c) Has been given a period of twenty-one (21) days within which to consider this Agreement, which allows Employee to make\na\nknowing, voluntary, and fully informed decision;\n(d) Has availed himself of all opportunities Employee deems necessary to make a voluntary, knowing, and fully informed decision; and\n(e) Is fully aware of his rights, and has carefully read and fully understands all provisions of this Agreement before signing.\n18. Effective Date. This Agreement may only be accepted during the twenty-one (21) day period after Employee receives this Agreement.\nIn\nthe event Employee executes this Agreement within the twenty-one (21) days following his receipt of this Agreement ("Twenty-One Day-Period"),\nhe\nshall have an additional period of seven (7) days to revoke the Agreement. Any revocation shall be in writing and addressed/delivered to the\nattention of API Electronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer. This\nAgreement shall not become effective, therefore, and none of the payments set forth in this Agreement shall become due until Employee has\nexecuted the Agreement and the seven-day revocation period has expired without revocation being exercised (the "Effective Date"), except that API\nshall continue Employee's current benefits under the Medical Plans and the Insurance Plans from the Separation Date until the Effective Date.\n-10-\n19. Complete Agreement. This Agreement sets forth the complete agreement between the parties relating to the subjects herein. Employee\nacknowledges and agrees that, in executing this Agreement, Employee does not rely and has not relied upon any representations or statements not set\nforth herein made by API with regard to the subject matter, basis, or effect of this Agreement or otherwise. Notwithstanding the foregoing, nothing\nin this Agreement is intended to nor shall limit, supersede, nullify, or affect any other duty or responsibility Employee may have or owe to API by\nvirtue of any separate agreement or obligation.\n20. Recitals. The recitals to this Agreement are hereby incorporated into this Agreement and made a part hereof.\n21. Affiliate. As used in this Agreement, an "affiliate" of a person shall mean any person controlling, controlled by or under common control\nwith such person.\n- Remainder of Page Intentionally Left Blank; Signature Page Follows -\n-11-\nBY SIGNING THIS RELEASE, I STATE THAT: I HAVE READ IT; I UNDERSTAND IT AND KNOW THAT I AM GIVING UP\nIMPORTANT RIGHTS; I AGREE TO ALL THE TERMS CONTAINED WITHIN THE AGREEMENT; I AM AWARE OF MY RIGHT\nTO CONSULT WITH AN ATTORNEY BEFORE SIGNING IT AND HAVE HAD THE OPPORTUNITY TO DO SO; I HAVE\nCONSULTED WITH MY ATTORNEY BEFORE SIGNING IT; I HAVE SIGNED IT KNOWINGLY AND VOLUNTARILY.\nAGREED TO BY:\n"Employee"\n"API"\nAPI NANOTRONICS CORP.\n/s/ Thomas W. Mills, Sr.\nBy:\n/s/ Stephen Pudles\nThomas W. Mills, Sr.\nPrinted Name: Stephen Pudles\nDated: 5/4/09\nIts:\nCEO\nDated:\n5-11-09\nAPI ELECTRONICS, INC.\nBy:\n/s/ Stephen Pudles\nPrinted Name: Stephen Pudles\nIts:\nCEO\nDated:\n5-11-09\n-12-	EX-10.1 2 dex101.htm AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nExhibit 10.1\nAGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nThis AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT (this “Agreement”) is made and entered into as of the 11th day of\nMay, 2009, by and among API Nanotronics Corp., a Delaware corporation and API ELECTRONICS, INC., a Delaware corporation (collectively,\n“API”), and THOMAS W. MILLS, SR. (“Employee”).\nRECITALS:\nA. Employee’s employment with API will end effective March 19, 2009 (the “Separation Date”).\nB. Employee first received a copy of this Agreement on March 19, 2009 and received a copy of this version of the Agreement on April 28,\n2009.\nC. API enters into this Agreement based solely on Employee’s representation that this Agreement will resolve any and all claims Employee has\nor could have against API for any issue relating to his employment or the end of his employment with API and all affiliates of API and that\nEmployee has waived any right to pursue any lawsuit against API with respect to his employment, the separation of that employment, or any other\nissue that arose prior to his execution of this Agreement.\nD. In an effort to end the employment relationship on an amicable basis, and in consideration of the mutual covenants, promises, and\nobligations contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is mutually\nacknowledged, the Parties hereby agree as follows:\nAGREEMENT:\n1. Definition. Throughout this Agreement, the term “API” shall encompass the following:\n(a) API, as well as any division thereof, parent, subsidiary, affiliated entity, or related entity, predecessors, successors and assigns of any\nof the foregoing; and\n(b) Any current or former officer, director, trustee, agent, employee, shareholder, representative, insurer, or employee benefit or welfare\nprogram or plan (including administrators, trustees, fiduciaries, and insurers of such program or plan) of an entity referenced in or\nencompassed by Subparagraph 1(a).\n2. Resignations; Future Employment. Employee hereby resigns from his position as an officer of API, including without limitation, as\nPresident and Chief Operating Officer for API Nanotronics Corp., a member of API’s Board of Directors and all other officer positions and\ndirectorships he held with API, effective as of the Separation Date. All authority granted Employee by API shall be revoked as of the Separation\nDate. At API’s request, Employee shall execute any and all documents necessary to confirm Employee’s resignation from API. Employee’s\nemployment with API shall end on the Separation Date. Employee agrees that as a\ncondition of this Agreement, Employee will not seek reemployment with API at any time and should Employee apply in the future, his application\nfor employment will not be considered by API and will be null and void. Employee acknowledges that promptly after the Separation Date API is\nrequired to issue a press release announcing Employee’s resignation and promptly after the Effective Date API is required to issued a press release\nwith respect to this Agreement. Employee also acknowledges that API shall make such filings with the United States Securities and Exchange\nCommission with respect to Employee’s resignation and this Agreement as required by law and as it deems appropriate.\n3. Severance Payment and Other Consideration. API, in consideration for the promises contained herein, agrees as follows:\n(a) API will continue to pay Employee’s weekly salary of two thousand four hundred three and 85/100 ($2403.85) (less withholdings and\ndeductions required by law) for fifty-two (52) weekly pay periods (the “Severance Period”), payable to Employee via direct deposit on API’s\nregular paydays. Such payments shall begin within 14 days after the Effective Date. The payments due to Employee pursuant to this\nSection 3(a) cannot be offset by amounts due from Employee to API pursuant to any cause of action or claim, except as set forth in\nSection 9(d) and 10(h).\n(b) API and Employee agree that no amounts are due to Employee for accrued and unpaid vacation as of the Separation Date.\n(c) API will pay the monthly lease payments of $652.00 due under Employee’s car lease with Smithtown Motors Corp. for a period of\ntwelve months from the Separation Date.\n(d) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee’s coverage under\nits medical and dental plans (the “Medical Plans”) at the same benefit level Employee received immediately prior to the Separation Date.\nNotwithstanding the foregoing, in no event will API pay for or continue Employee’s coverage under the Medical Plans during the Severance\nPeriod if Employee becomes eligible for coverage under another group health plan. After the Severance Period, Employee will no longer be\ncovered by API’s Medical Plans. At that time, Employee will have any conversion rights available under the Medical Plans and as otherwise\nprovided by law, including the Comprehensive Omnibus Budget Reconciliation Act (“COBRA”). The period during which Employee will be\nentitled to continuation coverage under COBRA shall begin on the day after the Severance Period. If Employee elects to continue coverage\nunder the Medical Plans, Employee shall be responsible for the payment of premiums, as permitted by law. Employee agrees to immediately\nnotify API in writing, if Employee becomes eligible for such coverage under another group health plan. Such notice shall be given to API\nElectronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer.\n(e) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee’s coverage under\nits Short Term\n-2-\nDisability, Long Term Disability, Group Life Insurance and the Accidental Death and Dismemberment Plans (“Insurance Plans”). After the\nSeverance Period, Employee will have any conversion rights available under the Insurance Plans.\n(f) Employee shall not participate in the API Retirement Savings Plan after the Separation Date. Employee will be entitled to benefits\nearned and vested (if any) prior to the Separation Date pursuant to the applicable API Retirement Savings Plan provisions.\n(g) Employee will not be eligible for a bonus for the Fiscal Year 2009 or anytime thereafter, or any portion thereof.\nThe payments described in this Section 3 reflect consideration provided to Employee over and above anything of value to which Employee is\nalready entitled. In paying the amount specified in this Section 3, API makes no representation as to the tax consequences or liability arising\nfrom said payment. Moreover, the parties understand and agree that any tax consequences and/or liability arising from the payment to\nEmployee shall be the sole responsibility of Employee. To this extent, Employee acknowledges and agrees that he will pay any and all federal,\nstate and local income tax which may be determined to be due in connection with the payments described in this Section 3. Employee also\nagrees to indemnify API from all tax and/or other liability (including, but not limited to, fines, penalties, interest, and costs) arising from or\nrelating to the payment described in this Section 3 and/or imposed by the Internal Revenue Service, the State of New York, or any other taxing\nagency or tribunal as a result of API’s failure to withhold taxes on the payments described in this Section 3 or any portion thereof.\nEmployee acknowledges and agrees that the consideration and sums included in this Section 3 are the maximum sums ever to be due to\nEmployee from API, and he hereby relinquishes and waives any rights to other forms of payment or benefits under any other agreement\nbetween Employee and API, whether written, oral, express or implied.\n(h) Employee shall be entitled to keep desk, credenza and three matching chairs that formerly belonged to the former owner of Solid\nState Power. Employee shall arrange to pick-up said items, within seven (7) days of the Effective Date (as defined below)\n(i) API shall pay Employee $35,000 in full and complete satisfaction of all claims of Employee to shares of common stock of API or any\nother securities of API. Such amount shall be paid to employee by check and sent to Employee by API on the day following the Effective\nDate.\n4. General Release and Waiver from Employee. In consideration for the payments reflected in Section 3, Employee (for himself, his agents,\nassigns, heirs, executors, and administrators) hereby releases and discharges API from any claim, demand, action, or cause of action, known or\nunknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims relating to,\narising out of, or in any\n-3-\nway connected with his employment with or termination of employment from API including, without limitation, any claim, demand, action, cause of\naction, including money damages and claims for attorneys’ fees, based on but not limited to:\n(a) The Age Discrimination in Employment Act of 1967, as amended (“ADEA”), 29 U.S .C. § 621, et seq.;\n(b) The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.;\n(c) The Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq.;\n(d) The Family and Medical Leave Act of 1993, 29 U.S .C. § 2601, et seq.;\n(e) The Civil Rights Act of 1866 and 1964, as amended, 42 U.S .C. § 1981;\n(f) The Employee Retirement Security Act of 1973, 29 U.S .C. § 1001, et seq.;\n(g) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S .C. § 2000(e), et seq.;\n(h) The Fair Credit Reporting Act, 15 U.S .C. § 1681, et seq.;\n(i) The Fair Labor Standards Act, 29 U.S .C. § 201 et seq;\n(j) The New York Human Rights Law;\n(k) The New York Civil Rights Law;\n(l) The New York State Executive Law;\n(m) The New York City Administrative Code;\n(n) Any existing or potential entitlement under any API program or plan, including wages or other paid leave;\n(o) Any existing or potential agreement, contract, representation, policy, procedure, or statement (whether any of the foregoing are\nexpress or implied, oral or written);\n(p) Claims arising under any other federal, state or local fair employment practices law, disability benefits law, and any other employee\nor labor relations statute, executive order, law, ordinance, regulation or order and any duty or other employment-related obligation, including\nany claims arising from any other type of statute, executive order, law or ordinance,\n(q) Claims arising from contract or public policy, as well as tort, tortious cause of conduct, breach of contract, intentional infliction of\nemotional distress, negligence, discrimination, harassment, and retaliation, together with all claims for monetary and equitable relief, punitive\nand compensatory relief and attorneys’ fees and costs; and\n-4-\n(r) The New York Constitution and/or the United States Constitution.\nEmployee understands and agrees that he is releasing API from any and all claims by which he is giving up the opportunity to recover any\ncompensation, damages, or any other form of relief in any proceeding brought by Employee or on Employee’s behalf. Employee understands\nthat this release expressly includes all claims that could have been raised in a federal, state, county or local court and that this release also\nincludes all claims for attorneys’ fees and any other remedy that could have been sought in connection with any of the released claims.\nNotwithstanding the foregoing, this Agreement is not intended to operate as a waiver of any retirement or pension benefits that are vested, the\neligibility and entitlement to which shall be governed by the terms of the applicable plan. Nor shall this Agreement operate to waive or bar any\nclaim or right which - may not by operation of law or regulation be waived or barred.\n5. Release and Waiver from API. In consideration for the covenants and agreements of Employee set forth in this Agreement, API on behalf\nof itself and its affiliates, successors and assigns hereby releases and discharges Employee from any claim, demand, action, or cause of action,\nknown or unknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims\nrelating to, arising out of, or in any way connected with Employee’s employment with or termination of employment from API, except that this\nrelease shall not include any claim, demand, action, or cause of action, known or unknown, arising out of any violation or alleged violation of law or\nany material violation or alleged material violation of a company policy of API or any of its affiliates, which arose at any time from the beginning of\ntime to the date Employee executes this Agreement.\n6. Mutual Disclaimer. Employee states under penalties of perjury that - at the time he executes this Agreement - Employee is not aware of any\nfacts or incidents of wrongdoing, liability, harassment, discrimination or retaliation by API from the beginning of time up to the date Employee signs\nthe Agreement. The parties further understand that the offer of severance creates no precedent for API in dealing with any future separations.\n7. No Other Claims Pending. Employee represents and warrants that, with the possible exception of a claim for unemployment\ncompensation, Employee has not filed or otherwise initiated any complaint, cause of action or claim against API based on events occurring prior to\nand including the date he executes this Agreement. Employee further represents and warrants that, as of the date he executes this Agreement,\nEmployee is unaware of any outstanding complaints, causes of action or claims against API that involve or relate in any way to Employee.\n8. Job References. Employee shall direct job references to API’s Corporate Director of Human Resources. Such references shall be limited to\nlast position held and dates of employment.\n-5-\n9. Confidentiality.\n(a) Employee recognizes and understands the importance of maintaining each and every term of this Agreement in a confidential manner,\nuntil such time as API is required to disclose such terms to the public (the “Disclosure Date”). Employee further understands that prior to the\nDisclosure Date confidentiality is a material and critical aspect of this Agreement and is of paramount concern to all involved. Until the\nDisclosure Date, Employee agrees as follows. Employee agrees to keep the terms of this Agreement confidential and will not disclose any\ninformation concerning it to anyone except his spouse, tax advisor, legal counsel, or anyone required by law to know the contents of the\nAgreement; provided, that Employee shall inform any of these specified persons that Employee is bound by a confidentiality covenant and\nprior to any such disclosure to any of such persons, require that such person agree to abide by the terms of such covenant and not disclose any\ninformation concerning the Agreement. Employee agrees that, in the event he is compelled by court order or process to disclose any terms of\nthis Agreement, Employee shall immediately notify the undersigned representative of API in writing at least seven (7) days prior to the\ndisclosure.\n(b) Employee further agrees that he will not contact any employees or business associates of API, including but not limited to field\nrepresentatives, independent sales representatives, or present or past customers of API, concerning his employment, the cessation of his\nemployment, or any information contained within this Agreement.\n(c) If asked about the terms of any severance, Employee agrees that he will decline comment and will make no comments or physical\ngestures indicating that he has recovered monetary sums from API. Employee also agrees that he has not (i) disclosed his efforts to seek\nadditional severance or money with any current or former API employee, (ii) disclosed legal theories or allegations of discrimination or\nwrongdoing by API with any current or former API employee, or (iii) talked to or encouraged any current or former API employee about filing\na lawsuit, cause of action or claim against API.\n(d) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 9. Employee understands that a violation of this Section 9 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section9\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n-6-\n10. Non-Disclosure/Return of Property/Non-Competition.\n(a) Employee agrees that the information he obtained as a result of his position with API was sensitive, private, and/or confidential\ninformation. Employee agrees not to use or disclose (directly or indirectly) confidential, sensitive, or proprietary information concerning API\nobtained by him during his employment with API. For purposes of this Agreement, “Proprietary Information” includes, without limitation, all\nmaterials and information (whether written or not) about API’s current, prior, or prospective services or business activities, formulae, products,\nprocesses, research, plans, system designs, system applications, customers, affiliates, personnel, finances, purchasing, sales, marketing and\nmarkets, accounting, customer lists, business contracts, agreements, licenses, costs, pricing, profits, improvements, discoveries, software,\nbusiness methods and formulas, inventions, and other business aspects of API (including, but not limited to, information concerning, relating\nto, or arising out of relationships with customers, independent sales agents, lenders, investors or other business affiliates), which are not\ngenerally known and accessible to the public at large or which provide API with a competitive advantage. Employee hereby agrees that: (i) he\nhas kept and will keep all such information confidential; and (ii) he will not volunteer or disclose any such information to anyone without first\nobtaining express authorization to do so from the undersigned representative of API. Notwithstanding the foregoing, nothing in this Agreement\nshall be intended to limit Employee’s ability to provide information to legal counsel for API or pursuant to a court order. Moreover, this\nSection 10 shall not encompass or apply to information which is in the public domain, which becomes part of the public domain through no\nact, omission, or fault of Employee.\n(b) By signing this Agreement, Employee agrees that he has not disclosed or used information in violation of this provision and that he\nwill not do so in the future. API does not intend to limit Employee in any way from seeking employment or conducting business so long as\nEmployee does not use or disclose the proprietary information covered by this Section 10 and so long as Employee does not violate any other\nprovision contained within this Agreement. Employee certifies and declares that he already has returned or shall return to the custody of API\nall Proprietary Information, company property (including without limitation any laptop computer, cellular telephone, and Blackberry or similar\ndevices) and Company Documents - as well as any copies of Proprietary Information, company property, and Company Documents - in his\npossession by the Separation Date. The phrase “Company Documents” is defined to include any writings, documents, contracts, records, files,\ntape recordings, correspondence, photographs, communications, summaries, data, notes, memoranda, diskettes, business plans, price books, or\nany other source containing information which relates to or references API and which was provided by API or obtained as a result of\nEmployee’s relationship/employment with API.\n(c) During the one (1) year period following the Separation Date (the “Restricted Period”), Employee will not, whether on Employee’s\nown behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business\norganization, entity or enterprise whatsoever (“Person”), directly or indirectly:\n(i) engage in any business that competes with the businesses of API or its affiliates (including, without limitation, businesses which\nAPI or its affiliates have specific plans to conduct in the future and in connection with which API and/or its affiliates have expended\nmore than nominal time and/or capital and as to which plans Employee is aware) in any geographical area in which API or its affiliates\nproduces, manufactures, sells, leases, rents, licenses or otherwise provides its products or services, (a “Competitive Business”);\n-7-\n(ii) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which engages in a Competitive Business;\n(iii) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as\nan individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or\n(iv) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this\nAgreement) between API or any of its affiliates and customers, clients, contractors, managers, consultants, suppliers or investors of API\nor its affiliates.\n(d) Notwithstanding anything to the contrary in this Agreement, Employee may, directly or indirectly, own, solely as an investment,\nsecurities of any Person engaged a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-\ncounter market if Employee (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or\nindirectly, own 5% or more of any class of securities of such Person. Furthermore, nothing herein shall prevent Employee from remaining in\nthe electronics business and soliciting customers in the electronics industry so long as Employee is not participating in or soliciting on behalf\nof a Competing Business.\n(e) Employee will not make any legally impermissible statements or representations that disparage, demean, or impugn API, including\nwithout limitation any legally impermissible statements impugning the personal or professional character of any current or former director,\nofficer, or employee of API; and\n(f) During the one (1) year period following the Separation Date neither Employee nor any business in which Employee may engage or\nparticipate will (A) knowingly hire, solicit for hire or attempt to hire any employee of API, or (B) encourage\n-8-\nany employee of API to terminate such employment. For purposes of the Agreement, “Employee” means current employee as well as anyone\nemployed by API within the six (6) month period prior to the Separation Date; provided, that this provision shall not preclude Employee or any\nbusiness in which Employee may engage or participate from soliciting any such employee by means of or hiring any such employee who\nresponds to a public announcement placed by the business as long as Employee otherwise complies with the provisions of the Section 10(e).\n(g) Employee will not directly or indirectly seek to cause any person or organization to discontinue or limit its or their current\nrelationship with API.\n(h) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 10. Employee understands that a violation of this Section 10 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section 10\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect, except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n11. Successors. This Agreement shall apply to Employee, as well as to his heirs, executors, administrators, and agents. This Agreement also\nshall apply to, and inure to the benefit of API.\n12. Severability. The parties explicitly acknowledge and agree that the provisions of this Agreement are both reasonable and enforceable.\nHowever, the provisions of this Agreement are severable, and the invalidity of any one or more provisions shall not affect or limit the enforceability\nof the remaining provisions. Should any provision be held unenforceable for any reason, then such provision shall be enforced to the maximum\nextent permitted by law.\n13. Applicable Law. This Agreement shall be interpreted, enforced, and governed under the laws of the State of New York.\n14. Future Assistance. In partial exchange for the severance package, Employee agrees that he will cooperate and make himself reasonably\navailable to current API personnel in the event Employee’s assistance is needed to locate, understand, or clarify work previously performed by\nEmployee or other work-related issues relating to Employee’s employment. Employee also agrees that he will cooperate, assist, and make himself\nreasonably available to API personnel or API agents on an as-needed basis in order to respond to or address any complaint or issue raised by any\nperson or entity that does/did business with API or is/was associated with API in any way. Finally, Employee agrees that he will provide truthful and\n-9-\naccurate sworn testimony in the form of deposition, affidavit, and/or otherwise if requested by current API personnel. API will strive to keep the\nneed for future assistance to a minimum, and will reimburse Employee for reasonable out-of-pocket expenses, including, without limitation, travel\nexpenses, incurred as a result of Employee’s assistance, unless such remuneration would be inappropriate or otherwise prohibited under existing law.\n15. Nonwaiver. The waiver by API of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver\nof any subsequent breach by Employee.\n16. Jurisdiction. Any action regarding this Agreement or otherwise brought against API by Employee, Employee’s agents, assigns, heirs,\nadministrators, or executors, or by his attorney, shall be maintained in a state or federal court in Suffolk County, New York. By signing this\nAgreement, Employee expressly consents to personal jurisdiction in New York. Both parties waive the right to a jury trial.\n17. Knowledge and Understanding. Employee acknowledges that neither Employee nor his agents have disclosed information in violation of\nSections 9 or 10 and will not do so in the future. Employee further acknowledges that, in accordance with the ADEA and in compliance with the\nOlder Workers Benefit Protection Act, Employee:\n(a) Has been, and is hereby, advised to consult with an attorney prior to executing this Agreement and has had the opportunity to do so;\n(b) Is receiving consideration under this Agreement which is grater in kind and amount than that to which Employee would otherwise be\nentitled;\n(c) Has been given a period of twenty-one (21) days within which to consider this Agreement, which allows Employee to make a\nknowing, voluntary, and fully informed decision;\n(d) Has availed himself of all opportunities Employee deems necessary to make a voluntary, knowing, and fully informed decision; and\n(e) Is fully aware of his rights, and has carefully read and fully understands all provisions of this Agreement before signing.\n18. Effective Date. This Agreement may only be accepted during the twenty-one (21) day period after Employee receives this Agreement. In\nthe event Employee executes this Agreement within the twenty-one (21) days following his receipt of this Agreement (“Twenty-One Day-Period”),\nhe shall have an additional period of seven (7) days to revoke the Agreement. Any revocation shall be in writing and addressed/delivered to the\nattention of API Electronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer. This\nAgreement shall not become effective, therefore, and none of the payments set forth in this Agreement shall become due until Employee has\nexecuted the Agreement and the seven-day revocation period has expired without revocation being exercised (the “Effective Date”), except that API\nshall continue Employee’s current benefits under the Medical Plans and the Insurance Plans from the Separation Date until the Effective Date.\n- 10-\n19. Complete Agreement. This Agreement sets forth the complete agreement between the parties relating to the subjects herein. Employee\nacknowledges and agrees that, in executing this Agreement, Employee does not rely and has not relied upon any representations or statements not set\nforth herein made by API with regard to the subject matter, basis, or effect of this Agreement or otherwise. Notwithstanding the foregoing, nothing\nin this Agreement is intended to nor shall limit, supersede, nullify, or affect any other duty or responsibility Employee may have or owe to API by\nvirtue of any separate agreement or obligation.\n20. Recitals. The recitals to this Agreement are hereby incorporated into this Agreement and made a part hereof.\n21. Affiliate. As used in this Agreement, an “affiliate” of a person shall mean any person controlling, controlled by or under common control\nwith such person.\n- Remainder of Page Intentionally Left Blank; Signature Page Follows -\n-11 -\nBY SIGNING THIS RELEASE, I STATE THAT: I HAVE READ IT; I UNDERSTAND IT AND KNOW THAT I AM GIVING UP\nIMPORTANT RIGHTS; I AGREE TO ALL THE TERMS CONTAINED WITHIN THE AGREEMENT; I AM AWARE OF MY RIGHT\nTO CONSULT WITH AN ATTORNEY BEFORE SIGNING IT AND HAVE HAD THE OPPORTUNITY TO DO SO; I HAVE\nCONSULTED WITH MY ATTORNEY BEFORE SIGNING IT; I HAVE SIGNED IT KNOWINGLY AND VOLUNTARILY.\nAGREED TO BY:\n“Employee”\n“API”\nAPI NANOTRONICS CORP.\n/s/ Thomas W. Mills, Sr.\nBy:\n/s/ Stephen Pudles\nThomas W. Mills, Sr.\nPrinted Name: Stephen Pudles\nDated: 5/4/09\nIts:\nCEO\nDated:\n5-11-09\nAPI ELECTRONICS, INC.\nBy:\n/s/ Stephen Pudles\nPrinted Name: Stephen Pudles\nIts:\nCEO\nDated:\n5-11-09\n- 12-
99dcd3ce09b66f2e227179775677cca5.pdf	effective_date jurisdiction party term	EX-99.D(4) 12 dex99d4.htm MUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nMUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nThis Mutual Non-Disclosure/Confidentiality Agreement is entered into on 2 September, 2004, by and between nStor Corporation, Inc. (“nStor”), a\nDelaware (USA) Corporation, and Xyratex Technology Limited, Langstone Technology Park, Langstone Road, Havant, Hampshire PO9 1SA a\ncompany incorporated in England (‘Xyratex’) (collectively the ‘Parties’) for the purpose of sharing technical, business and financial information to\nfoster potential mutually beneficial business relationships.\n1. Confidential Information. Confidential Information does not need to be marked as such and is defined as any and all technical, business\nfinancial and other information belonging to either party, including but not limited to products, descriptions, drawings, bills of material, assembly\ndrawings, compositions, business plans, financial information, trade secrets, know how, inventions, manufacturing techniques and processes,\nmarketing and sales processes and techniques, customer lists, price lists, suppliers, current and future product developments.\nConfidential Information shall not include information, technical data or knowledge which:\na.\nis already known to the Receiving Party;\nb. is or becomes publicly known through no wrongful act of the Receiving Party;\nc.\nis rightfully received from a third party without restrictions and without breach of this Agreement;\nd. is independently developed by the Receiving Party;\ne.\nis approved for release by written authorization of the disclosing party; or\nf. if orally disclosed by one party to the other and within thirty (30) days after the oral disclosure, the disclosing party does not so identify\nit in writing as Confidential Information. Neither party will disclose to third parties or fail to treat as Confidential Information any\ninformation received orally from the disclosing party unless the disclosing party fails for thirty (30) days after such disclosure to identify\nthe information disclosed as being confidential or proprietary.\n2. Term. This Agreement shall commence when executed and continue for a period of one (1) year. The Parties agree that from the date of first\nreceipt, and for a period of three (3) years following the last disclosure of Confidential Information, the party receiving the Confidential Information\n(the “Receiving Party”) shall not disclose the Confidential Information to any other person, or entity, or use for its own benefit except as provided in\nthis Agreement and shall use the same degree of care to avoid publication or dissemination of such information as it does for its own confidential\ninformation which it does not desire to have published or disseminated. These efforts shall specifically include document control measures, such as\nnumbered copies and sign out logs, and imposing on all employees, agents and other representatives of the Receiving Party restrictions at least as\nstrict as required by this Agreement.\n3. Marking. All information disclosed under this Agreement is deemed Confidential Information whether or not it is so marked. It is the intent of the\nParties to mark information as confidential and/or proprietary prior to release to the Receiving Party. However, such markings may be overlooked\nand or disclosed verbally or visually and shall not diminish the value of its confidentiality.\n4. Return of Confidential Information. All Confidential Information and any copies and extracts thereof shall be promptly returned to the\ndisclosing party or at any time within thirty (30) days of receipt of a written request by the disclosing party for the return of such Confidential\nInformation. If authorized by the disclosing party, such Confidential Information may be destroyed by the Receiving Party if such destruction is\ncertified by the Receiving Party to the satisfaction of the disclosing party.\n5. No License Granted. Nothing contained in this Agreement shall be construed as granting or conferring any rights by license, express, implied or\notherwise, for any information, discovery or improvements made, conceived, or acquired after the date of this Agreement, or for any invention,\ndiscovery, or improvement made, conceived, or acquired after the date of this Agreement, or for any invention, discovery, or improvement made,\nconceived or acquired prior to the date of this Agreement.\n6. Limitation on Use and Disclosure of Confidential Information. Confidential Information shall be used solely for the purpose of sharing\ntechnical, business and financial information to foster potential mutually beneficial business relationships.\n(a) Confidential Information shall not be copied or reproduced by the Receiving Party, except for such copies as may be reasonably required\nfor accomplishment of the purposes stated herein;\n(b) Confidential Information shall be disclosed only to employees, agents, and other parties of the Receiving Party who have a “need to\nknow” in connection with the purposes stated herein; and\n(c) This Agreement shall not restrict the disclosure or use of information that:\n(i) was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this\nAgreement by the Receiving Party;\n(ii) was, at the time of the receipt by the Receiving Party, otherwise known to the Receiving Party without restrictions as to the\nuse or disclosure;\n(iii) becomes known to the Receiving Party from a source other than the disclosing party without breach of this Agreement by\nthe Receiving Party; or\n(iv) is developed independently by the Receiving Party and without reliance upon the Confidential Information disclosed\nherein.\n7. Trading Limitations. The Parties’ will comply with any applicable United States securities laws.\n8. Arbitration and Equitable Relief.\n(a) Arbitration. Except as provided herein, the Parties agree that any dispute or controversy arising out of or relating to any interpretation,\nconstruction, performance or breach of this Agreement shall be settled by arbitration to be held in San Diego County, California, USA in\naccordance with the Commercial Arbitration Rules then in effect for the American Arbitration Association. The arbitrator may grant\ninjunctions or other relief in such dispute or controversy. In the event of arbitration, the Parties may undertake a reasonable amount of\ndiscovery. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgement may be entered\non the arbitrator’s decision in any court having jurisdiction.\n(b) Equitable Remedies. The Parties agree that it would be impossible or inadequate to measure and calculate damages from any breach of\nthe covenants set forth herein. Accordingly, the Parties agree that if in the event of a breach of the covenants contained in this\nAgreement, the affected party will have available, in addition to any other right or remedy available, the right to obtain an injunction\nfrom a court of competent jurisdiction restraining such breach or threatened breach and to specify performance of any such provision of\nthe Agreement. The Parties further agree that no bond or other security shall be required in obtaining such equitable relief and the Parties\nhereby consent to the issuance of such injunction and to the ordering of specific performance.\n9. Legal Expenses. If any action or proceeding is brought for enforcement of this Agreement, or because of an alleged or actual dispute, breach,\ndefault, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to\nrecover reasonable attorney’s fees and other costs incurred in such action or proceeding in addition to any other relief to which it may be entitled.\n10. General Provisions.\n(a) Governing Law. This Agreement shall be governed by the laws of the United States of America, State of California.\n(b) Severability. If one or more of the provisions in this Agreement is deemed void by law, then the remaining provisions will continue in\nfull force and effect.\n(c) Successor and Assigns. This Agreement will be binding upon the successors and/or assignees of the Parties.\n(d) Headings. All headings used herein are intended for reference purposes only and shall not affect the interpretation or validity of this\nAgreement.\n11. Obligations. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party has an\nobligation under this Agreement to offer for sale or license products using or incorporating the Confidential Information. Either party may, at its sole\ndiscretion, offer products for sale or license using its own information but not the Confidential Information of the other and may modify or\ndiscontinue sales at\n2\nany time. This Agreement shall not constitute, create, give effect to, or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of either\nparty to submit a proposal to or perform a contract with the other party. Nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of either or both parties. Neither party will be liable to the other party for any costs, expense, risks, or liabilities\narising out of the other party’s efforts in connection with this Agreement.\n12. Entire Understanding. This Agreement contains the entire understanding between the Parties concerning the subject matter hereof, superseding\nall prior contemporaneous communications, agreements and understandings between the Parties with respect to the disclosure and protection of\nConfidential Information. The rights and obligations of the Parties shall be limited to those expressly set forth herein.\nnStor Corporation, Inc.\nXyratex Technology Limited\n/s/ Steve Aleshire\n/s/ Matt Cornell\nAuthorized Signature\nAuthorized Signature\nMatt Cornell\nSteve Aleshire\nPrint Name\nPrint Name\nExecutive VP – Storage Systems\nCOO\nTitle\nTitle\nSeptember 3, 2004\n9/3/04\nDate\nDate\n3	EX-99.D(4) 12 dex99d4.htm MUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nMUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nThis Mutual Non-Disclosure/Confidentiality Agreement is entered into on 2 September, 2004, by and between nStor Corporation, Inc. (“nStor”), a\nDelaware (USA) Corporation, and Xyratex Technology Limited, Langstone Technology Park, Langstone Road, Havant, Hampshire PO9 1SA a\ncompany incorporated in England (‘Xyratex’) (collectively the ‘Parties’) for the purpose of sharing technical, business and financial information to\nfoster potential mutually beneficial business relationships.\n1. Confidential Information. Confidential Information does not need to be marked as such and is defined as any and all technical, business\nfinancial and other information belonging to either party, including but not limited to products, descriptions, drawings, bills of material, assembly\ndrawings, compositions, business plans, financial information, trade secrets, know how, inventions, manufacturing techniques and processes,\nmarketing and sales processes and techniques, customer lists, price lists, suppliers, current and future product developments.\nConfidential Information shall not include information, technical data or knowledge which:\nis already known to the Receiving Party;\na\nb.  is or becomes publicly known through no wrongful act of the Receiving Party;\nc.  isrightfully received from a third party without restrictions and without breach of this Agreement;\nd.  is independently developed by the Receiving Party;\ne.  is approved for release by written authorization of the disclosing party; or\nf. if orally disclosed by one party to the other and within thirty (30) days after the oral disclosure, the disclosing party does not so identify\n \nit in writing as Confidential Information. Neither party will disclose to third parties or fail to treat as Confidential Information any\ninformation received orally from the disclosing party unless the disclosing party fails for thirty (30) days after such disclosure to identify\nthe information disclosed as being confidential or proprietary.\n2. Term. This Agreement shall commence when executed and continue for a period of one (1) year. The Parties agree that from the date of first\nreceipt, and for a period of three (3) years following the last disclosure of Confidential Information, the party receiving the Confidential Information\n(the “Receiving Party”) shall not disclose the Confidential Information to any other person, or entity, or use for its own benefit except as provided in\nthis Agreement and shall use the same degree of care to avoid publication or dissemination of such information as it does for its own confidential\ninformation which it does not desire to have published or disseminated. These efforts shall specifically include document control measures, such as\nnumbered copies and sign out logs, and imposing on all employees, agents and other representatives of the Receiving Party restrictions at least as\nstrict as required by this Agreement.\n3. Marking. All information disclosed under this Agreement is deemed Confidential Information whether or not it is so marked. It is the intent of the\nParties to mark information as confidential and/or proprietary prior to release to the Receiving Party. However, such markings may be overlooked\nand or disclosed verbally or visually and shall not diminish the value of its confidentiality.\n4. Return of Confidential Information. All Confidential Information and any copies and extracts thereof shall be promptly returned to the\ndisclosing party or at any time within thirty (30) days of receipt of a written request by the disclosing party for the return of such Confidential\nInformation. If authorized by the disclosing party, such Confidential Information may be destroyed by the Receiving Party if such destruction is\ncertified by the Receiving Party to the satisfaction of the disclosing party.\n5. No License Granted. Nothing contained in this Agreement shall be construed as granting or conferring any rights by license, express, implied or\notherwise, for any information, discovery or improvements made, conceived, or acquired after the date of this Agreement, or for any invention,\ndiscovery, or improvement made, conceived, or acquired after the date of this Agreement, or for any invention, discovery, or improvement made,\nconceived or acquired prior to the date of this Agreement.\n6. Limitation on Use and Disclosure of Confidential Information. Confidential Information shall be used solely for the purpose of sharing technical, business and financial information to foster potential mutually beneficial business relationships. (a)\n(b)\n()\nConfidential Information shall not be copied or reproduced by the Receiving Party, except for such copies as may be reasonably required\nfor accomplishment of the purposes stated herein;\nConfidential Information shall be disclosed only to employees, agents, and other parties of the Receiving Party who have a “need to\nknow” in connection with the purposes stated herein; and\nThis Agreement shall not restrict the disclosure or use of information that:\n(i) was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this\nAgreement by the Receiving Party;\n(ii) was, at the time of the receipt by the Receiving Party, otherwise known to the Receiving Party without restrictions as to the\nuse or disclosure;\n(iii) becomes known to the Receiving Party from a source other than the disclosing party without breach of this Agreement by\nthe Receiving Party; or\n(iv) is developed independently by the Receiving Party and without reliance upon the Confidential Information disclosed\nherein.\n7. Trading Limitations. The Parties’ will comply with any applicable United States securities laws. 8. Arbitration and Equitable Relief. (a)\n(b)\nArbitration. Except as provided herein, the Parties agree that any dispute or controversy arising out of or relating to any interpretation,\nconstruction, performance or breach of this Agreement shall be settled by arbitration to be held in San Diego County, California, USA in\naccordance with the Commercial Arbitration Rules then in effect for the American Arbitration Association. The arbitrator may grant\ninjunctions or other relief in such dispute or controversy. In the event of arbitration, the Parties may undertake a reasonable amount of\ndiscovery. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgement may be entered\non the arbitrator’s decision in any court having jurisdiction.\nEquitable Remedies. The Parties agree that it would be impossible or inadequate to measure and calculate damages from any breach of\nthe covenants set forth herein. Accordingly, the Parties agree that if in the event of a breach of the covenants contained in this\nAgreement, the affected party will have available, in addition to any other right or remedy available, the right to obtain an injunction\nfrom a court of competent jurisdiction restraining such breach or threatened breach and to specify performance of any such provision of\nthe Agreement. The Parties further agree that no bond or other security shall be required in obtaining such equitable relief and the Parties\nhereby consent to the issuance of such injunction and to the ordering of specific performance.\n9. Legal Expenses. If any action or proceeding is brought for enforcement of this Agreement, or because of an alleged or actual dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney’s fees and other costs incurred in such action or proceeding in addition to any other relief to which it may be entitled. 10. General Provisions. (a)\n(b)\n()\n(d)\nGoverning Law. This Agreement shall be governed by the laws of the United States of America, State of California.\nSeverability. If one or more of the provisions in this Agreement is deemed void by law, then the remaining provisions will continue in\nfull force and effect.\nSuccessor and Assigns. This Agreement will be binding upon the successors and/or assignees of the Parties.\nHeadings. All headings used herein are intended for reference purposes only and shall not affect the interpretation or validity of this\nAgreement.\n11. Obligations. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party has an obligation under this Agreement to offer for sale or license products using or incorporating the Confidential Information. Either party may, at its sole discretion, offer products for sale or license using its own information but not the Confidential Information of the other and may modify or discontinue sales at\fany time. This Agreement shall not constitute, create, give effect to, or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of either\nparty to submit a proposal to or perform a contract with the other party. Nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of either or both parties. Neither party will be liable to the other party for any costs, expense, risks, or liabilities\narising out of the other party’s efforts in connection with this Agreement.\n12. Entire Understanding. This Agreement contains the entire understanding between the Parties concerning the subject matter hereof, superseding\nall prior contemporaneous communications, agreements and understandings between the Parties with respect to the disclosure and protection of\nConfidential Information. The rights and obligations of the Parties shall be limited to those expressly set forth herein.\nnStor Corporation, Inc. Xyratex Technology Limited\n/s/ Steve Aleshire /s/ Matt Cornell\nAuthorized Signature Authorized Signature\nMatt Cornell\nSteve Aleshire\nPrint Name Print Name\nExecutive VP — Storage Systems\nCOO\nTitle Title\nSeptember 3, 2004 9/3/04\nDate Date	EX-99.D(4) 12 dex99d4.htm MUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nMUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nThis Mutual Non-Disclosure/Confidentiality Agreement is entered into on 2 September, 2004, by and between nStor Corporation, Inc. ("nStor"),\na\nDelaware (USA) Corporation, and Xyratex Technology Limited, Langstone Technology Park, Langstone Road, Havant, Hampshire PO9 1SA a\ncompany incorporated in England ('Xyratex') (collectively the 'Parties') for the purpose of sharing technical, business and financial information to\nfoster potential mutually beneficial business relationships.\n1.\nConfidential Information. Confidential Information does not need to be marked as such and is defined as any and all technical, business\nfinancial and other information belonging to either party, including but not limited to products, descriptions, drawings, bills of material, assembly\ndrawings, compositions, business plans, financial information, trade secrets, know how, inventions, manufacturing techniques and processes,\nmarketing and sales processes and techniques, customer lists, price lists, suppliers, current and future product developments.\nConfidential Information shall not include information, technical data or knowledge which:\na.\nis already known to the Receiving Party;\nb.\nis or becomes publicly known through no wrongful act of the Receiving Party;\nc.\nis rightfully received from a third party without restrictions and without breach of this Agreement;\nd.\nis independently developed by the Receiving Party;\ne.\nis approved for release by written authorization of the disclosing party; or\nf.\nif orally disclosed by one party to the other and within thirty (30) days after the oral disclosure, the disclosing party does not so identify\nit in writing as Confidential Information. Neither party will disclose to third parties or fail to treat as Confidential Information any\ninformation received orally from the disclosing party unless the disclosing party fails for thirty (30) days after such disclosure to identify\nthe information disclosed as being confidential or proprietary.\n2. Term. This Agreement shall commence when executed and continue for a period of one (1) year. The Parties agree that from the date of first\nreceipt, and for a period of three (3) years following the last disclosure of Confidential Information, the party receiving the Confidential Information\n(the "Receiving Party") shall not disclose the Confidential Information to any other person, or entity, or use for its own benefit except as provided in\nthis Agreement and shall use the same degree of care to avoid publication or dissemination of such information as it does for its own confidential\ninformation which it does not desire to have published or disseminated. These efforts shall specifically include document control measures, such\nas\nnumbered copies and sign out logs, and imposing on all employees, agents and other representatives of the Receiving Party restrictions at least as\nstrict as required by this Agreement.\n3. Marking. All information disclosed under this Agreement is deemed Confidential Information whether or not it is so marked. It is the intent of the\nParties to mark information as confidential and/or proprietary prior to release to the Receiving Party. However, such markings may be overlooked\nand or disclosed verbally or visually and shall not diminish the value of its confidentiality.\n4. Return of Confidential Information. All Confidential Information and any copies and extracts thereof shall be promptly returned to the\ndisclosing party or at any time within thirty (30) days of receipt of a written request by the disclosing party for the return of such Confidential\nInformation. If authorized by the disclosing party, such Confidential Information may be destroyed by the Receiving Party if such destruction is\ncertified by the Receiving Party to the satisfaction of the disclosing party.\n5. No License Granted. Nothing contained in this Agreement shall be construed as granting or conferring any rights by license, express, implied or\notherwise, for any information, discovery or improvements made, conceived, or acquired after the date of this Agreement, or for any invention,\ndiscovery, or improvement made, conceived, or acquired after the date of this Agreement, or for any invention, discovery, or improvement made,\nconceived or acquired prior to the date of this Agreement.\n6. Limitation on Use and Disclosure of Confidential Information. Confidential Information shall be used solely for the purpose of sharing\ntechnical, business and financial information to foster potential mutually beneficial business relationships.\n(a) Confidential Information shall not be copied or reproduced by the Receiving Party, except for such copies as may be reasonably required\nfor accomplishment of the purposes stated herein;\n(b)\nConfidential Information shall be disclosed only to employees, agents, and other parties of the Receiving Party who have a "need to\nknow" in connection with the purposes stated herein; and\n(c)\nThis Agreement shall not restrict the disclosure or use of information that:\n(i)\nwas in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this\nAgreement by the Receiving Party;\n(ii)\nwas, at the time of the receipt by the Receiving Party, otherwise known to the Receiving Party without restrictions as to the\nuse or disclosure;\n(iii) becomes known to the Receiving Party from a source other than the disclosing party without breach of this Agreement by\nthe Receiving Party; or\n(iv)\nis developed independently by the Receiving Party and without reliance upon the Confidential Information disclosed\nherein.\n7. Trading Limitations The Parties' will comply with any applicable United States securities laws.\n8. Arbitration and Equitable Relief.\n(a) Arbitration. Except as provided herein, the Parties agree that any dispute or controversy arising out of or relating to any interpretation,\nconstruction, performance or breach of this Agreement shall be settled by arbitration to be held in San Diego County, California, USA in\naccordance with the Commercial Arbitration Rules then in effect for the American Arbitration Association. The arbitrator may grant\ninjunctions or other relief in such dispute or controversy. In the event of arbitration, the Parties may undertake a reasonable amount of\ndiscovery. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgement may be entered\non the arbitrator's decision in any court having jurisdiction.\n(b)\nEquitable Remedies. The Parties agree that it would be impossible or inadequate to measure and calculate damages from any breach of\nthe covenants set forth herein. Accordingly, the Parties agree that if in the event of a breach of the covenants contained in this\nAgreement, the affected party will have available, in addition to any other right or remedy available, the right to obtain an injunction\nfrom a court of competent jurisdiction restraining such breach or threatened breach and to specify performance of any such provision of\nthe Agreement. The Parties further agree that no bond or other security shall be required in obtaining such equitable relief and the Parties\nhereby consent to the issuance of such injunction and to the ordering of specific performance.\n9. Legal Expenses. If any action or proceeding is brought for enforcement of this Agreement, or because of an alleged or actual dispute, breach,\ndefault, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to\nrecover reasonable attorney's fees and other costs incurred in such action or proceeding in addition to any other relief to which it may be entitled.\n10. General Provisions.\n(a)\nGoverning Law. This Agreement shall be governed by the laws of the United States of America, State of California.\n(b)\nSeverability. If one or more of the provisions in this Agreement is deemed void by law, then the remaining provisions will continue in\nfull force and effect.\n(c)\nSuccessor and Assigns. This Agreement will be binding upon the successors and/or assignees of the Parties.\n(d)\nHeadings. All headings used herein are intended for reference purposes only and shall not affect the interpretation or validity of this\nAgreement.\n11. Obligations. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party has an\nobligation under this Agreement to offer for sale or license products using or incorporating the Confidential Information. Either party may, at its sole\ndiscretion, offer products for sale or license using its own information but not the Confidential Information of the other and may modify or\ndiscontinue sales at\n2\nany time. This Agreement shall not constitute, create, give effect to, or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of either\nparty to submit a proposal to or perform a contract with the other party. Nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of either or both parties. Neither party will be liable to the other party for any costs, expense, risks, or liabilities\narising out of the other party's efforts in connection with this Agreement.\n12. Entire Understanding. This Agreement contains the entire understanding between the Parties concerning the subject matter hereof, superseding\nall prior contemporaneous communications, agreements and understandings between the Parties with respect to the disclosure and protection of\nConfidential Information. The rights and obligations of the Parties shall be limited to those expressly set forth herein.\nnStor Corporation, Inc.\nXyratex Technology Limited\n/s/ Steve Aleshire\n/s/ Matt Cornell\nAuthorized Signature\nAuthorized Signature\nMatt Cornell\nSteve Aleshire\nPrint Name\nPrint Name\nExecutive VP - Storage Systems\nCOO\nTitle\nTitle\nSeptember 3, 2004\n9/3/04\nDate\nDate\n3	EX-99.D(4) 12 dex99d4.htm MUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nMUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nThis Mutual Non-Disclosure/Confidentiality Agreement is entered into on 2 September, 2004, by and between nStor Corporation, Inc. (“nStor”), a\nDelaware (USA) Corporation, and Xyratex Technology Limited, Langstone Technology Park, Langstone Road, Havant, Hampshire PO9 1SA a\ncompany incorporated in England (‘Xyratex’) (collectively the ‘Parties’) for the purpose of sharing technical, business and financial information to\nfoster potential mutually beneficial business relationships.\n1. Confidential Information. Confidential Information does not need to be marked as such and is defined as any and all technical, business\nfinancial and other information belonging to either party, including but not limited to products, descriptions, drawings, bills of material, assembly\ndrawings, compositions, business plans, financial information, trade secrets, know how, inventions, manufacturing techniques and processes,\nmarketing and sales processes and techniques, customer lists, price lists, suppliers, current and future product developments.\nConfidential Information shall not include information, technical data or knowledge which:\na.\nis already known to the Receiving Party;\nb. is or becomes publicly known through no wrongful act of the Receiving Party;\nc.\nis rightfully received from a third party without restrictions and without breach of this Agreement;\nd. is independently developed by the Receiving Party;\ne.\nis approved for release by written authorization of the disclosing party; or\nf. if orally disclosed by one party to the other and within thirty (30) days after the oral disclosure, the disclosing party does not so identify\nit in writing as Confidential Information. Neither party will disclose to third parties or fail to treat as Confidential Information any\ninformation received orally from the disclosing party unless the disclosing party fails for thirty (30) days after such disclosure to identify\nthe information disclosed as being confidential or proprietary.\n2. Term. This Agreement shall commence when executed and continue for a period of one (1) year. The Parties agree that from the date of first\nreceipt, and for a period of three (3) years following the last disclosure of Confidential Information, the party receiving the Confidential Information\n(the “Receiving Party”) shall not disclose the Confidential Information to any other person, or entity, or use for its own benefit except as provided in\nthis Agreement and shall use the same degree of care to avoid publication or dissemination of such information as it does for its own confidential\ninformation which it does not desire to have published or disseminated. These efforts shall specifically include document control measures, such as\nnumbered copies and sign out logs, and imposing on all employees, agents and other representatives of the Receiving Party restrictions at least as\nstrict as required by this Agreement.\n3. Marking. All information disclosed under this Agreement is deemed Confidential Information whether or not it is so marked. It is the intent of the\nParties to mark information as confidential and/or proprietary prior to release to the Receiving Party. However, such markings may be overlooked\nand or disclosed verbally or visually and shall not diminish the value of its confidentiality.\n4. Return of Confidential Information. All Confidential Information and any copies and extracts thereof shall be promptly returned to the\ndisclosing party or at any time within thirty (30) days of receipt of a written request by the disclosing party for the return of such Confidential\nInformation. If authorized by the disclosing party, such Confidential Information may be destroyed by the Receiving Party if such destruction is\ncertified by the Receiving Party to the satisfaction of the disclosing party.\n5. No License Granted. Nothing contained in this Agreement shall be construed as granting or conferring any rights by license, express, implied or\notherwise, for any information, discovery or improvements made, conceived, or acquired after the date of this Agreement, or for any invention,\ndiscovery, or improvement made, conceived, or acquired after the date of this Agreement, or for any invention, discovery, or improvement made,\nconceived or acquired prior to the date of this Agreement.\n6. Limitation on Use and Disclosure of Confidential Information. Confidential Information shall be used solely for the purpose of sharing\ntechnical, business and financial information to foster potential mutually beneficial business relationships.\n(a) Confidential Information shall not be copied or reproduced by the Receiving Party, except for such copies as may be reasonably required\nfor accomplishment of the purposes stated herein;\n(b) Confidential Information shall be disclosed only to employees, agents, and other parties of the Receiving Party who have a “need to\nknow” in connection with the purposes stated herein; and\n(c) This Agreement shall not restrict the disclosure or use of information that:\n(i) was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this\nAgreement by the Receiving Party;\n(ii) was, at the time of the receipt by the Receiving Party, otherwise known to the Receiving Party without restrictions as to the\nuse or disclosure;\n(iii) becomes known to the Receiving Party from a source other than the disclosing party without breach of this Agreement by\nthe Receiving Party; or\n(iv) is developed independently by the Receiving Party and without reliance upon the Confidential Information disclosed\nherein.\n7. Trading Limitations. The Parties’ will comply with any applicable United States securities laws.\n8. Arbitration and Equitable Relief.\n(a) Arbitration. Except as provided herein, the Parties agree that any dispute or controversy arising out of or relating to any interpretation,\nconstruction, performance or breach of this Agreement shall be settled by arbitration to be held in San Diego County, California, USA in\naccordance with the Commercial Arbitration Rules then in effect for the American Arbitration Association. The arbitrator may grant\ninjunctions or other relief in such dispute or controversy. In the event of arbitration, the Parties may undertake a reasonable amount of\ndiscovery. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgement may be entered\non the arbitrator’s decision in any court having jurisdiction.\n(b) Equitable Remedies. The Parties agree that it would be impossible or inadequate to measure and calculate damages from any breach of\nthe covenants set forth herein. Accordingly, the Parties agree that if in the event of a breach of the covenants contained in this\nAgreement, the affected party will have available, in addition to any other right or remedy available, the right to obtain an injunction\nfrom a court of competent jurisdiction restraining such breach or threatened breach and to specify performance of any such provision of\nthe Agreement. The Parties further agree that no bond or other security shall be required in obtaining such equitable relief and the Parties\nhereby consent to the issuance of such injunction and to the ordering of specific performance.\n9. Legal Expenses. If any action or proceeding is brought for enforcement of this Agreement, or because of an alleged or actual dispute, breach,\ndefault, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to\nrecover reasonable attorney’s fees and other costs incurred in such action or proceeding in addition to any other relief to which it may be entitled.\n10. General Provisions.\n(a) Governing Law. This Agreement shall be governed by the laws of the United States of America, State of California.\n(b) Severability. If one or more of the provisions in this Agreement is deemed void by law, then the remaining provisions will continue in\nfull force and effect.\n(c) Successor and Assigns. This Agreement will be binding upon the successors and/or assignees of the Parties.\n(d) Headings. All headings used herein are intended for reference purposes only and shall not affect the interpretation or validity of this\nAgreement.\n11. Obligations. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party has an\nobligation under this Agreement to offer for sale or license products using or incorporating the Confidential Information. Either party may, at its sole\ndiscretion, offer products for sale or license using its own information but not the Confidential Information of the other and may modify or\ndiscontinue sales at\n2\nany time. This Agreement shall not constitute, create, give effect to, or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of either\nparty to submit a proposal to or perform a contract with the other party. Nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of either or both parties. Neither party will be liable to the other party for any costs, expense, risks, or liabilities\narising out of the other party’s efforts in connection with this Agreement.\n12. Entire Understanding. This Agreement contains the entire understanding between the Parties concerning the subject matter hereof, superseding\nall prior contemporaneous communications, agreements and understandings between the Parties with respect to the disclosure and protection of\nConfidential Information. The rights and obligations of the Parties shall be limited to those expressly set forth herein.\nnStor Corporation, Inc.\nXyratex Technology Limited\n/s/ Steve Aleshire\n/s/ Matt Cornell\nAuthorized Signature\nAuthorized Signature\nMatt Cornell\nSteve Aleshire\nPrint Name\nPrint Name\nExecutive VP – Storage Systems\nCOO\nTitle\nTitle\nSeptember 3, 2004\n9/3/04\nDate\nDate\n3
99dfb1027fcb9fe65c61777f264fdc88.pdf	effective_date jurisdiction party term	EX-10 .8 5 hpyexhibit108iandrysdaleno.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT IAN DRYSDALE\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 9th day of July, 2012, by and between Ian Drysdale, hereinafter “Employee,” and Heartland Payment\nSystems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary and/or\naffiliate companies, the “Company”).\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1. Scope of Agreement.\n(a)\nThis contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b)\nSeverance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2. Severance and Bonuses.\n(a)\nIn consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to\n1\nthe base salary that would have been paid for a period of six (6) months payable in accordance with the\nCompany's regular payroll practices, plus medical benefits for such period, paid as if Employee were still\nemployed with Company; provided, that the Employee shall not be eligible to receive such severance pay\nunless such termination of employment occurs after the ninetieth (90th) day of the Employee's employment by\nthe Company. Medical benefit continuation during such severance period shall be counted against the benefit\ncontinuation period required under COBRA.\n(b)\nIn the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee (or is\ndesignee or next of kin, in the event of death of the employee) shall also be entitled to receive fifty percent\n(50%) of the pro rata portion (based on the number of days of Employee's employment during the fiscal quarter\nin which the Employee's employment is terminated) of any bonus payment that would have been payable to\nhim for that fiscal quarter if the Employee had been in the employ of the Company for the full fiscal quarter. If\nthe Employee's compensation arrangement did not contemplate a bonus payable on a quarterly basis, but\ninstead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then fifty\npercent (50%) of the pro rata bonus shall be computed based on the number of days of Employee's employment\nduring such longer fiscal period in which the Employee's employment is terminated and the amount of the\nbonus payment that would have been payable to him for such longer fiscal period. No bonus will be payable to\nthe Employee with respect to any bonus period commencing after the bonus period in which the Employee's\nemployment terminated.\n(c) Cause. “Cause” means:\n(i)\nThe Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii)\nThe Employee is enjoined by any judge, jury, arbitrator or other adjudicator from\nperforming one or more of the essential or material functions of Employee's job for the Company; or\n(iii)\nThe Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(d) below; or\n(iv)\nThe Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured with thirty\n(30) days after receipt of written notice from the Company of such breach or failure.\n2\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n(c)\nDisability. “Disability” means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(d)\nIf the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every position the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3. Employees' Acknowledgments.\n(a)\nThe Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b)\nThe Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4. Protection of Information.\n(a)\nThe Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales compensation and sales force automation software and systems, electronic payment\ntransaction processing software,\n3\nfraud and risk analysis systems, human resources and time and attendance information systems and software,\npayroll services information systems and payroll application processing software, sales policy documents,\nmarketing communications materials, information relating to trade secrets, business methods, products,\nprocesses, procedures, development or experimental projects, suppliers, customer lists or the needs of\ncustomers or prospective customers, clients, etc., and will not use such information for his own purpose or for\nthe purpose of any person, firm, corporation or entity except the Company.\n(b)\nUpon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5. Covenant Not to Compete.\n(a)\nDuring the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nperform activities of the type conducted, authorized, offered, or provided to the Company within two years\nprior to termination for any business which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company within two years of such\ntermination (such business being hereinafter sometimes called a “Competing Business”), in any territory in\nwhich Employee conducted business on behalf of the Company within one year of termination, or (ii) assist\nothers in engaging in any Competing Business in any manner described in the foregoing clause (i).\n(b)\nThe Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not believe would prevent him\nfrom earning a living.\n(c)\n“Restricted Period” shall mean the period commencing on the date hereof and ending on the\nlast day of the sixth (6th) full calendar month following the Employee's termination for any reason whatsoever\nincluding but not limited to involuntary termination (with or without Cause) and/or voluntary termination. In\nthe event the enforceability of any of the terms of the Agreement shall be challenged in Court and Employee is\nnot enjoined from breaching any of the protective covenants, then if a\n4\ncourt of competent jurisdiction finds that the challenged protective covenant is enforceable, the time periods\nshall be deemed tolled upon the filing of the lawsuit challenging the enforceability of this Agreement until the\ndispute is finally resolved and all periods of appeal have expired.\nSection 6. Non Solicitation.\n(a)\nDuring the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or without Cause) and/or voluntary termination, Employee hereby\ncovenants that he will not, directly or indirectly, solicit, entice or induce any Customer or Supplier (as defined\nbelow) of the Company to (i) become a Customer or Supplier of any other person or entity engaged in any\nbusiness activity that competes with any business conducted by the Company at any time during the period of\nEmployee's employment with the Company, or any business planned by the Company at any time during the\nperiod of Employee's employment with the Company or (ii) cease doing business with the Company, and\nEmployee agrees that he will not assist any person or entity in taking any action described in the foregoing\nclauses (i) and (ii). For purposes of this Section 6, (A) a “Customer” of the Company means any person,\ncorporation, partnership, trust, division, business unit, department or agency with whom Employee had\nMaterial Contact (as defined below) at the time of termination or within one year prior thereto; and (B) a\n“Supplier” of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency with whom Employee had Material Contact (as defined below) at the time of termination\nor within one year prior thereto. Material Contact means the contact between Employee and each customer,\npotential customer, supplier, and/or potential supplier; (a) with whom or which Employee dealt on behalf of the\nCompany; (b) whose dealings with the Company were coordinated or supervised by Employee; (c) about whom\nEmployee obtained confidential information in the ordinary course of business as a result of Employee's\nassociation with the Company; or (d) who receives products or services authorized by the Company, the sale or\nprovision of which results or resulted in compensation, commissions or earnings for Employee within two years\nprior to the date of Employee's termination.\n(b)\nDuring the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) month following the Employee's termination for any reason whatsoever, including but not limited\nto involuntary termination (with or without Cause) and/or voluntary termination, the Employee will not,\ndirectly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the\n5\nCompany for its sole use and benefit any and all inventions, improvements, technical information and\nsuggestions relating in any way to the business of the Company (whether patentable or not), which he may\ndevelop, acquire, conceive or reduce to practice while employed by the Company (whether or not during usual\nworking hours), together with all patent applications, letters patent, copyrights and reissues thereof that may at\nany time be granted for or upon any such invention, improvement or technical information. In connection\ntherewith:\n(a)\nThe Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n(b)\nThe Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved relating to any such patents, inventions, improvements or technical information.\nSection 8. Remedies; Survival.\n(a)\nThe Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial and unique nature, the loss of which cannot be accurately compensated for in damages by an action at\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Company from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b)\nNotwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.\n(a)\nEmployee represents and warrants to the Company that, except for the\n6\nrestrictive covenants in the Separate Agreement with WorldPay set forth in Exhibit A attached hereto, he is not\nparty to any agreement or other arrangement with any other corporation, partnership or entity relating to\nnoncompetition with such entity or to non-disclosure of confidential and proprietary information of such entity\nor to other matters similar to the matters set forth in this Agreement.\n(b)\nEmployee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\nSection 10. General Provisions.\n(a)\nThis Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n(c)\nIt is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in\nwhich enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\nbe deemed to have been revised accordingly herein.\n(d)\nAny suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e)\nIf any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n7\n(f)\nThis Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n(g)\nThe Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\n8\nIN WITNESS WHEREOF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/ Ian Drysdale\nName: Ian Drysdale\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10	EX-10.8 5 hpyexhibit108iandrysdaleno.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT IAN DRYSDALE\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis Sth day of July, 2012, by and between Ian Drysdale, hereinafter “Employee,” and Heartland Payment\nSystems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary and/or\naffiliate companies, the “Company”).\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1.  Scope of Agreement.\n(a) This contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b) Severance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2.  Severance and Bonuses.\n(a) In consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to\nthe base salary that would have been paid for a period of six (6) months payable in accordance with the\nCompany's regular payroll practices, plus medical benefits for such period, paid as if Employee were still\nemployed with Company; provided, that the Employee shall not be eligible to receive such severance pay\nunless such termination of employment occurs after the ninetieth (90th) da%: of the Employee's employment by\nthe Company. Medical benefit continuation during such severance period shall be counted against the benefit\ncontinuation period required under COBRA.\n(b) In the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee (or is\ndesignee or next of kin, in the event of death of the employee) shall also be entitled to receive fifty percent\n(50%) of the pro rata portion (based on the number of days of Employee's employment during the fiscal quarter\nin which the Employee's employment is terminated) of any bonus payment that would have been payable to\nhim for that fiscal quarter if the Employee had been in the employ of the Corn]IJany for the full fiscal quarter. If\nthe Employee's compensation arrangement did not contemplate a bonus pafiab e on a quarterly basis, but\ninstead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then fifty\npercent (50%) of the pro rata bonus shall be computed based on the number of days of Employee's employment\nduring such longer fiscal period in which the Employee's employment is terminated and the amount of the\nbonus payment that woulg have been payable to him for such longer fiscal period. No bonus will be payable to\nthe Employee with respect to any bonus period commencing after the bonus period in which the Employee's\nemployment terminated.\n(c) Cause. “Cause” means:\n(i) The Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii) The Emplogee is enjoined by any judge, jury, arbitrator or other adjudicator from\nperforming one or more of the essential or material functions of Employee's job for the Company; or\n(iii) The Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(d) below; or\n(iv) The Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured with thirty\n(30) days after receipt of written notice from the Company of such breach or failure.\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\nC Disability. “Disability” means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n( If the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every flosmon the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise)\nSection 3. Employees' Acknowledgments.\n(a) The Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b) The Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4. Protection of Information.\n(a) The Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, tirm, corporation or entity\n(exce cIlJt when expressly authorized in writing by Company) any information relating to Company s business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales cornpensation and sales force automation software and systems, electronic payment\ntransaction processing software,\nfraud and risk analysis systems, human resources and time and attendance information systems and software,\npayroll services information systems and payroll application processing software, sales policy documents,\nmarketing communications materials, information relating to trade secrets, business methods, products,\nprocesses, procedures, development or experimental projects, suppliers, customer lists or the needs of\ncustomers or Ierospective customers, clients, etc., an wiJIl not use such information for his own purpose or for\nthe purpose of any person, firm, corporation or entity except the Company.\n(b) Upon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5. Covenant Not to Compete.\n(@) During the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nperform activities of the type conducted, authorized, offered, or provided to the Company within two years\nprior to termination for any business which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company within two years of such\ntermination (such business being hereinafter sometimes called a “Competing Business™), in any territory in\nwhich Employee conducted business on behalf of the Company within one year of termination, or (ii) assist\nothers in engaging in any Competing Business in any manner described in tfie foregoing clause (i).\n(b) The Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock o]Etions to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not gelieve would prevent him\nfrom earning a living.\n(© “Restricted Period” shall mean the period commencing on the date hereof and ending on the\nlast day of the sixth (6th) full calendar month following the Employee's termination for any reason whatsoever\nincluding but not limited to involuntary termination (with or without Cause) and/or voluntary termination. In\nthe event the enforceability of any of the terms of the Agreement shall be challenged in Court and Employee is\nnot enjoined from breaching any of the protective covenants, then if a\ncourt of competent ]]urisdiction finds that the challenged protective covenant is enforceable, the time periods\nshall be deemed tolled upon the filing of the lawsuit challenging the enforceability of this Agreement until the\ndispute is finally resolved and all periods of appeal have expired.\nSection 6. Non Solicitation.\n(a) During the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or without Cause) and/or voluntary termination, Employee hereb\ncovenants that he will not, directly or indirectly, solicit, entice or induce any Customer or Supplier (as defined\nbelow) of the Company to (i) become a Customer or Supplier of any other person or entity engaged in any\nbusiness activity that competes with any business conducted by the Company at any time during the period of\nEmployee's employment with the Company, or any business p?;nned by the Company at any time during the\nperiod of Employee's employment with the Company or (ii) cease doing business with the Company, and\nEmployee agrees that he wil?fnot assist any person or entity in taking any action described in the foregoing\nclauses (i) and (ii). For purposes of this Section 6, (A) a “Customer” of the Company means any person,\ncorporation, partnership, trust, division, business unit, department or agency witllwJ whom Employee had\nMaterial Contact (as defined below) at the time of termination or within one year prior thereto; and (B) a\n“Supplier” of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency with whom Employee had Material Contact (as defined below) at the time of termination\nor within one year prior thereto. Material Contact means the contact between Employee and each customer,\npotential customer, supplier, and/or potential supplier; (a) with whom or which Employee dealt on behalf of the\nCompany; (b) whose dealings with the Company were coordinated or supervised by Employee; (c) about whom\nEmployee obtained confidential information in the ordinary course of business as a resullz ng Employee's\nassociation with the Company; or (d) who receives products or services authorized by the Company, the sale or\nprovision of which results or resulted in compensation, commissions or earnings for Employee wit?w/in two years\nprior to the date of Employee's termination.\n(b) Durin% the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) month following the Employee's termination for any reason whatsoever, including but not limited\nto involuntary termination (with or without Cause) and/or voluntary termination, the Employee will not,\ndirectly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the\nCompany for its sole use and benefit any and all inventions, improvements, technical information and\nsuggestions relating in any way to the business of the Company (whether patentable or not), which he may\ndevelop, acquire, conceive or reduce to practice while employed by the Company (whether or not during usual\nworking hours), together with all patent applications, letters patent, copyrights and reissues thereof that may at\nany time be granted for or upon any such invention, improvement or technical information. In connection\ntherewith:\n(a) The Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n(b) The Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved re?fating to any such patents, inventions, improvements or technical information.\nSection 8. Remedies; Survival.\n(@) The Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial and unique nature, the loss of which cannot be accurately compensated for in damages by an action at\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Cornfpany from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b) Notwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.\n(@) Employee represents and warrants to the Company that, except for the\nrestrictive covenants in the Separate Agreement with WorldPay set forth in Exhibit A attached hereto, he is not\nparty to any agreement or other arrangement with any other corporation, partnership or entity relating to\nnoncompetition with such entity or to non-disclosure of confidential and proprietary information of such entity\nor to other matters similar to the matters set forth in this Agreement.\n(b) Employee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\nSection 10. General Provisions.\n(@) This Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b) This Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n© It is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public pollfcies applied in each jurisdiction in\nwhich enforcement is sou%ht. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than Eermitted y the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed %y the laws of such jurisdiction and such restriction shall\ne deemed to have been revised accordingly herein.\n(d) Any suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to afifsuits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e) If any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n® This Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n() The Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\nIN WITNESS WHEREOQF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/lan Drysdale\nName: Ian Drysdale\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10	EX-10.8 5 yexhibitlo8iandrysdaleno.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT IAN DRYSDALE\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 9th day of July, 2012, by and between Ian Drysdale, hereinafter "Employee," and Heartland Payment\nSystems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary and/or\naffiliate companies, the "Company").\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1.\nScope of Agreement.\n(a)\nThis contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b)\nSeverance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2. Severance and Bonuses.\n(a)\nIn consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to\n1\nthe base salary that would have been paid for a period of six (6) months payable in accordance with the\nCompany's regular payroll practices, plus medical benefits for such period, paid as if Employee were still\nemployed with Company; provided, that the Employee shall not be eligible to receive such severance pay\nunless such termination of employment occurs after the ninetieth (90th) day of the Employee's employment\nby\nthe Company. Medical benefit continuation during such severance period shall be counted against the benefit\ncontinuation period required under COBRA.\n(b)\nIn the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee (or is\ndesignee or next of kin, in the event of death of the employee) shall also be entitled to receive fifty percent\n(50%) of the pro rata portion (based on the number of days of Employee's employment during the fiscal quarter\nin which the Employee's employment is terminated) of any bonus payment that would have been payable to\nhim for that fiscal quarter if the Employee had been in the employ of the Company for the full fiscal quarter. If\nthe Employee's compensation arrangement did not contemplate a bonus payable on a quarterly basis, but\ninstead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then fifty\npercent\n(50%)\nof\nthe\npro\nrata\nbonus\nshall\nbe\ncomputed\nbased\non\nthe\nnumber\nof\ndays\nof\nEmployee's\nemployment\nduring such longer fiscal period in which the Employee's employment is terminated and the amount of the\nbonus payment that would have been payable to him for such longer fiscal period. No bonus will be payable to\nthe Employee with respect to any bonus period commencing after the bonus period in which the Employee's\nemployment terminated.\n(c)\nCause. "Cause" means:\n(i)\nThe Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii)\nThe Employee is enjoined by any judge, jury, arbitrator or other adjudicator from\nperforming one or more of the essential or material functions of Employee's job for the Company; or\n(iii)\nThe Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(d) below; or\n(iv)\nThe Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured with thirty\n(30) days after receipt of written notice from the Company of such breach or failure.\n2\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n(c)\nDisability. "Disability" means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(d)\nIf the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every position the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3.\nEmployees' Acknowledgments.\n(a)\nThe Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b)\nThe Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4.\nProtection of Information.\n(a)\nThe Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales compensation and sales force automation software and systems, electronic payment\ntransaction processing software,\n3\nfraud and risk analysis systems, human resources and time and attendance information systems and software,\npayroll services information systems and payroll application processing software, sales policy documents,\nmarketing communications materials, information relating to trade secrets, business methods, products,\nprocesses, procedures, development or experimental projects, suppliers, customer lists or the needs of\ncustomers or prospective customers, clients, etc., and will not use such information for his own purpose or for\nthe purpose of any person, firm, corporation or entity except the Company.\n(b)\nUpon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company alf records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5.\nCovenant Not to Compete.\n(a)\nDuring the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nperform activities of the type conducted, authorized, offered, or provided to the Company within two years\nprior to termination for any business which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company within two years of such\ntermination (such business being hereinafter sometimes called a "Competing Business"), in any territory in\nwhich Employee conducted business on behalf of the Company within one year of termination, or (ii) assist\nothers in engaging in any Competing Business in any manner described in the foregoing clause (i).\n(b)\nThe Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived\nand\nwill\nreceive\nsufficient\nconsideration\nand\nother\nbenefits\nin\nconnection\nwith\nthe\nCompany's\nissuance\nof certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not believe would prevent him\nfrom earning a living.\n(c)\n"Restricted Period" shall mean the period commencing on the date hereof and ending on the\nlast day of the sixth (6th) full calendar month following the Employee's termination for any reason whatsoever\nincluding but not limited to involuntary termination (with or without Cause) and/or voluntary termination. In\nthe event the enforceability of any of the terms of the Agreement shall be challenged in Court and Employee is\nnot enjoined from breaching any of the protective covenants, then if a\n4\ncourt of competent jurisdiction finds that the challenged protective covenant is enforceable, the time periods\nshall be deemed tolled upon the filing of the lawsuit challenging the enforceability of this Agreement until the\ndispute is finally resolved and all periods of appeal have expired.\nSection 6.\nNon Solicitation.\n(a)\nDuring the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or without Cause) and/or voluntary termination, Employee hereby\ncovenants\nthat\nhe\nwill\nnot,\ndirectly\nor\nindirectly,\nsolicit,\nentice\nor\ninduce\nany\nCustomer\nor\nSupplier\n(as\ndefined\nbelow) of the Company to (i) become a Customer or Supplier of any other person or entity engaged in any\nbusiness activity that competes with any business conducted by the Company at any time during the period of\nEmployee's employment with the Company, or any business planned by the Company at any time during the\nperiod of Employee's employment with the Company or (ii) cease doing business with the Company, and\nEmployee agrees that he will not assist any person or entity in taking any action described in the foregoing\nclauses (i) and (ii). For purposes of this Section 6, (A) a "Customer" of the Company means any person,\ncorporation, partnership, trust, division, business unit, department or agency with whom Employee had\nMaterial Contact (as defined below) at the time of termination or within one year prior thereto; and (B)\na\n"Supplier" of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency with whom Employee had Material Contact (as defined below) at the time of termination\nor within one year prior thereto. Material Contact means the contact between Employee and each customer,\npotential customer, supplier, and/or potential supplier; (a) with whom or which Employee dealt on behalf of the\nCompany; (b) whose dealings with the Company were coordinated or supervised by Employee; (c) about whom\nEmployee obtained confidential information in the ordinary course of business as a result of Employee's\nassociation with the Company; or (d) who receives products or services authorized by the Company, the sale\nor\nprovision of which results or resulted in compensation, commissions or earnings for Employee within two years\nprior to the date of Employee's termination.\n(b)\nDuring the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) month following the Employee's termination for any reason whatsoever, including but not limited\nto involuntary termination (with or without Cause) and/or voluntary termination, the Employee will not,\ndirectly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7.\nCompany Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the\n5\nCompany for its sole use and benefit any and all inventions, improvements, technical information and\nsuggestions relating in any way to the business of the Company (whether patentable or not), which he may\ndevelop, acquire, conceive or reduce to practice while employed by the Company (whether or not during usual\nworking hours), together with all patent applications, letters patent, copyrights and reissues thereof that may at\nany time be granted for or upon any such invention, improvement or technical information. In connection\ntherewith:\n(a)\nThe Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n(b)\nThe Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved relating to any such patents, inventions, improvements or technical information.\nSection 8.\nRemedies; Survival.\n(a)\nThe Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial\nand\nunique\nnature,\nthe\nloss\nof\nwhich\ncannot\nbe\naccurately\ncompensated\nfor\nin\ndamages\nby\nan\naction\nat\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Company from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b)\nNotwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9.\nOther Agreements: Prohibition Against Use of Trade Secrets of Others.\n(a)\nEmployee represents and warrants to the Company that, except for the\n6\nrestrictive covenants in the Separate Agreement with WorldPay set forth in Exhibit A attached hereto, he is not\nparty to any agreement or other arrangement with any other corporation, partnership or entity relating to\nnoncompetition with such entity or to non-disclosure of confidential and proprietary information of such entity\nor to other matters similar to the matters set forth in this Agreement.\n(b)\nEmployee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\nSection 10. General Provisions.\n(a)\nThis Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n(c)\nIt is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in\nwhich enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\nbe deemed to have been revised accordingly herein.\n(d)\nAny suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e)\nIf any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n7\n(f)\nThis Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n(g)\nThe Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\n8\nIN WITNESS WHEREOF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy:\n/s/ Ian Drysdale\nName: Ian Drysdale\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10	EX-10 .8 5 hpyexhibit108iandrysdaleno.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT IAN DRYSDALE\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 9th day of July, 2012, by and between Ian Drysdale, hereinafter “Employee,” and Heartland Payment\nSystems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary and/or\naffiliate companies, the “Company”).\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1. Scope of Agreement.\n(a)\nThis contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b)\nSeverance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2. Severance and Bonuses.\n(a)\nIn consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to\n1\nthe base salary that would have been paid for a period of six (6) months payable in accordance with the\nCompany's regular payroll practices, plus medical benefits for such period, paid as if Employee were still\nemployed with Company; provided, that the Employee shall not be eligible to receive such severance pay\nunless such termination of employment occurs after the ninetieth (90th) day of the Employee's employment by\nthe Company. Medical benefit continuation during such severance period shall be counted against the benefit\ncontinuation period required under COBRA.\n(b)\nIn the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee (or is\ndesignee or next of kin, in the event of death of the employee) shall also be entitled to receive fifty percent\n(50%) of the pro rata portion (based on the number of days of Employee's employment during the fiscal quarter\nin which the Employee's employment is terminated) of any bonus payment that would have been payable to\nhim for that fiscal quarter if the Employee had been in the employ of the Company for the full fiscal quarter. If\nthe Employee's compensation arrangement did not contemplate a bonus payable on a quarterly basis, but\ninstead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then fifty\npercent (50%) of the pro rata bonus shall be computed based on the number of days of Employee's employment\nduring such longer fiscal period in which the Employee's employment is terminated and the amount of the\nbonus payment that would have been payable to him for such longer fiscal period. No bonus will be payable to\nthe Employee with respect to any bonus period commencing after the bonus period in which the Employee's\nemployment terminated.\n(c) Cause. “Cause” means:\n(i)\nThe Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii)\nThe Employee is enjoined by any judge, jury, arbitrator or other adjudicator from\nperforming one or more of the essential or material functions of Employee's job for the Company; or\n(iii)\nThe Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(d) below; or\n(iv)\nThe Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured with thirty\n(30) days after receipt of written notice from the Company of such breach or failure.\n2\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n(c)\nDisability. “Disability” means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(d)\nIf the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every position the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3. Employees' Acknowledgments.\n(a)\nThe Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b)\nThe Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4. Protection of Information.\n(a)\nThe Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales compensation and sales force automation software and systems, electronic payment\ntransaction processing software,\n3\nfraud and risk analysis systems, human resources and time and attendance information systems and software,\npayroll services information systems and payroll application processing software, sales policy documents,\nmarketing communications materials, information relating to trade secrets, business methods, products,\nprocesses, procedures, development or experimental projects, suppliers, customer lists or the needs of\ncustomers or prospective customers, clients, etc., and will not use such information for his own purpose or for\nthe purpose of any person, firm, corporation or entity except the Company.\n(b)\nUpon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5. Covenant Not to Compete.\n(a)\nDuring the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nperform activities of the type conducted, authorized, offered, or provided to the Company within two years\nprior to termination for any business which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company within two years of such\ntermination (such business being hereinafter sometimes called a “Competing Business”), in any territory in\nwhich Employee conducted business on behalf of the Company within one year of termination, or (ii) assist\nothers in engaging in any Competing Business in any manner described in the foregoing clause (i).\n(b)\nThe Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not believe would prevent him\nfrom earning a living.\n(c)\n“Restricted Period” shall mean the period commencing on the date hereof and ending on the\nlast day of the sixth (6th) full calendar month following the Employee's termination for any reason whatsoever\nincluding but not limited to involuntary termination (with or without Cause) and/or voluntary termination. In\nthe event the enforceability of any of the terms of the Agreement shall be challenged in Court and Employee is\nnot enjoined from breaching any of the protective covenants, then if a\n4\ncourt of competent jurisdiction finds that the challenged protective covenant is enforceable, the time periods\nshall be deemed tolled upon the filing of the lawsuit challenging the enforceability of this Agreement until the\ndispute is finally resolved and all periods of appeal have expired.\nSection 6. Non Solicitation.\n(a)\nDuring the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or without Cause) and/or voluntary termination, Employee hereby\ncovenants that he will not, directly or indirectly, solicit, entice or induce any Customer or Supplier (as defined\nbelow) of the Company to (i) become a Customer or Supplier of any other person or entity engaged in any\nbusiness activity that competes with any business conducted by the Company at any time during the period of\nEmployee's employment with the Company, or any business planned by the Company at any time during the\nperiod of Employee's employment with the Company or (ii) cease doing business with the Company, and\nEmployee agrees that he will not assist any person or entity in taking any action described in the foregoing\nclauses (i) and (ii). For purposes of this Section 6, (A) a “Customer” of the Company means any person,\ncorporation, partnership, trust, division, business unit, department or agency with whom Employee had\nMaterial Contact (as defined below) at the time of termination or within one year prior thereto; and (B) a\n“Supplier” of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency with whom Employee had Material Contact (as defined below) at the time of termination\nor within one year prior thereto. Material Contact means the contact between Employee and each customer,\npotential customer, supplier, and/or potential supplier; (a) with whom or which Employee dealt on behalf of the\nCompany; (b) whose dealings with the Company were coordinated or supervised by Employee; (c) about whom\nEmployee obtained confidential information in the ordinary course of business as a result of Employee's\nassociation with the Company; or (d) who receives products or services authorized by the Company, the sale or\nprovision of which results or resulted in compensation, commissions or earnings for Employee within two years\nprior to the date of Employee's termination.\n(b)\nDuring the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) month following the Employee's termination for any reason whatsoever, including but not limited\nto involuntary termination (with or without Cause) and/or voluntary termination, the Employee will not,\ndirectly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the\n5\nCompany for its sole use and benefit any and all inventions, improvements, technical information and\nsuggestions relating in any way to the business of the Company (whether patentable or not), which he may\ndevelop, acquire, conceive or reduce to practice while employed by the Company (whether or not during usual\nworking hours), together with all patent applications, letters patent, copyrights and reissues thereof that may at\nany time be granted for or upon any such invention, improvement or technical information. In connection\ntherewith:\n(a)\nThe Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n(b)\nThe Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved relating to any such patents, inventions, improvements or technical information.\nSection 8. Remedies; Survival.\n(a)\nThe Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial and unique nature, the loss of which cannot be accurately compensated for in damages by an action at\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Company from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b)\nNotwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.\n(a)\nEmployee represents and warrants to the Company that, except for the\n6\nrestrictive covenants in the Separate Agreement with WorldPay set forth in Exhibit A attached hereto, he is not\nparty to any agreement or other arrangement with any other corporation, partnership or entity relating to\nnoncompetition with such entity or to non-disclosure of confidential and proprietary information of such entity\nor to other matters similar to the matters set forth in this Agreement.\n(b)\nEmployee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\nSection 10. General Provisions.\n(a)\nThis Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n(c)\nIt is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in\nwhich enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\nbe deemed to have been revised accordingly herein.\n(d)\nAny suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e)\nIf any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n7\n(f)\nThis Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n(g)\nThe Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\n8\nIN WITNESS WHEREOF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/ Ian Drysdale\nName: Ian Drysdale\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10
9a5cb31024ad0a7a4916e4f122ebea4a.pdf	effective_date jurisdiction party term	EX-10.3 2 dex103.htm FORM OF EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-\nCOMPETITION AGREEMENT\nEXHIBIT 10.3\nEMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is\nentered into as of [\n,\n] by and between [\n] (the “Executive”) and SAVVIS, INC., a Delaware corporation, (“SAVVIS”) and all\nits subsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to\nsuch terms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\n•\nthe Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\n•\nthe Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\n•\nthe Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its Affiliates with\na significant competitive advantage; and\n•\nthe Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information (which\nincludes trade secrets and customer lists) and customer goodwill by all of their employees;\n•\nExecutive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to prevent\ncompetitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent\napplicable and in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall\nbe deemed a guarantee of employment with Company for any period of time.\n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive’s position as of the date of this Agreement is [\n]. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her\nposition and such other duties and responsibilities on behalf of the Company and its Affiliates, reasonably related to that position, as may be\ndesignated from time to time by the Compensation Committee (the “Compensation Committee”) of the Board of Directors of SAVVIS (the\n“Board”) or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge\nto the advancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities\nhereunder. The Executive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or\nacademic position during the term of this Agreement, except as may otherwise be expressly approved in advance by the Compensation\nCommittee or other designee in writing.\n3. Compensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of [\nDollars ($\n) ] per annum, payable in accordance with the regular payroll practices of the\nCompany for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such base salary,\nas from time to time adjusted, is hereafter referred to as the “Base Salary”.\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company’s fiscal year ending December 31, [ ], the Executive will be eligible, at the\nCompensation Committee’s discretion, to receive a bonus payment equal to [\n]% of Base Salary, payable in accordance with the\nterms of the Company’s [\n] Annual Incentive Plan.\n(ii) Commencing on January 1, [ ] and for the remainder of the term hereof, the Executive shall be entitled to participate in the\nCompany’s Annual Incentive Plan (the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee\nprior to the commencement of each fiscal year. Nothing contained herein shall obligate the Company to continue the Annual Incentive\nPlan. Any compensation paid to the Executive under the Annual Incentive Plan shall be in addition to the Base Salary. Except as\notherwise expressly provided under the terms of the Annual Incentive Plan or this Agreement, the Executive shall not be entitled to earn\nbonus or other compensation for services rendered to the Company.\n[Insert equity grant provisions if applicable.]\n4. Termination of Employment.\n(a) Executive’s employment with the Company may be terminated as follows:\n(i) by the Company with Cause;\n(ii) by the Company without Cause;\n(iii) upon Executive’s death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n(v) by Executive without Good Reason.\n(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as\nreferred to in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination,\nplus (ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for\nbusiness expenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other\nbenefits to which Executive may be entitled which provide for payment or other benefits following termination (such as under disability\ninsurance plan).\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to\nany amounts / benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then\ncurrent annual Base Salary for one year (the “Severance Payment”) and (y) at the discretion of the Compensation Committee, a pro-rated\nportion of the bonus that the Executive would be entitled to receive under the Company’s Annual Incentive Plan (“Bonus”). The pro-\nrated Bonus will be calculated by the compensation committee by extrapolating the Company’s anticipated full year performance based\non the current year performance to date and then multiplying the resulting full year extrapolation by a fraction the numerator of which is\nthe number of days during the calendar year the Executive worked in the year of Involuntary Termination up to the termination date and\nthe denominator of which is 365. Any such Bonus shall be paid not later than 30 days after the date of the Involuntary Termination. If the\nExecutive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet received payment\nfor the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual Incentive\nPlan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\nAny such Bonus shall be paid at the time bonuses are paid to other employees under the Annual Incentive Plan and not later than the end\nof the year during which the Involuntary Termination occurred.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months after a Change in Control (a “Change in\nControl Termination”), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other\nequity-based awards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control\nTermination shall, unless such Equity Awards are no longer outstanding, to the extent not then vested, fully vest and become exercisable\nas of such date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve\n(12) months from the date of the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the\nagreement evidencing such award; and (y) the Executive shall be entitled to the Bonus, which shall be paid not later than 30 days after\nthe date of the Change in Control Termination.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with\nthe Company’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision\nof this Agreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known\nand unknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to\nprosecute any legal action or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive’s Involuntary Termination;\n(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following\nthe effective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n(e) Health Care Benefit. Following an Involuntary Termination, the Company will pay to the Executive a monthly taxable cash payment\nin an amount equal (on an after tax basis, taking into account federal, state, local and foreign taxes) to the monthly COBRA (Consolidated\nOmnibus Budget Reconciliation Act) premium(s) in effect as of immediately prior to the Executive’s Involuntary Termination for the most\nexpensive level of coverage under the group health plan(s) applicable to the Executive at the time of the Executive’s Involuntary Termination.\nThe monthly payments will commence with the first month following the Executive’s Involuntary Termination and will terminate upon the\nearlier of (a) the Executive having received twelve monthly payments and (b) the Executive becoming re-employed and entitled to coverage\nunder the new employer’s group health plan. The Executive agrees to notify the Company in writing immediately upon becoming re-employed\nand entitled to coverage under a new employer’s group health plan.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to\nbe withheld by law.\n(g) Section 409A Savings Clause. This Agreement is intended to comply with the requirements of Section 409A of the Code (including\nthe exceptions thereto) to the extent applicable, and the Agreement shall be interpreted in a manner consistent with such requirements.\nNotwithstanding any other provision hereof, if any provision of the Agreement conflicts with the requirements of Section 409A of the Code (or\nan exception thereto), such provision shall be deemed reformed so as to comply with the requirements of Section 409A of the Code (or an\nexception thereto) and shall be interpreted and applied accordingly.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any event,\nwithin 2 /2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the last\nday of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement during\nany calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the\nidentification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount\npayable by the Company to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required\nto be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the\nCompany will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after\nsuch six-month period together with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street\nJournal) in effect as of the dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive\nmay develop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to\nConfidential Information during the course of employment. The Executive will comply with the policies and procedures of the Company and\nits Affiliates for protecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or\nfor the proper performance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the\nExecutive incident to his employment or other association with the Company or any of its Affiliates. The Executive understands that this\nrestriction shall continue to apply after his employment terminates, regardless of the reason for such termination. The confidentiality obligation\nunder this Section 5 shall not apply to information which is generally known or readily available to the public at the time of disclosure or\nbecomes generally known through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to\nthe Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the\nCompany or its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be\nthe sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the\nCompany at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then\nin the Executive’s possession or control.\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative\n1\ndemand or similar process) to disclose any of the Confidential Information, the Executive shall, where permitted under applicable law, rule or\nregulation, provide written notice to the Company promptly after such request so that the Company may, at its expense, seek a protective order\nor other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in connection with seeking such order or other\nremedy). In the event that such protective order or other remedy is not obtained, the Executive shall furnish only that portion of the\nConfidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential Information in the\ncourse of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have requested or\nrequired the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to obtain\nreliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute “Confidential\nInformation” under this Agreement.\n6. Certain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially\ninterfere with his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive’s employment and for twelve (12) months following termination of his or her employment for any\nreason (the “Restricted Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent,\nemployee, co-venturer or otherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake\nany planning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the\nExecutive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company\nor any of its Affiliates as conducted or under consideration at any time during the Executive’s employment, and further agrees not to\nwork or provide services, in any capacity, whether as an employee, independent contractor or otherwise, whether with or without\ncompensation, to any Person who is engaged in any business that is competitive with the business of the Company or any of its Affiliates\nfor which the Executive has provided services. The foregoing, however, shall not prevent the Executive’s passive ownership of two\npercent (2%) or less of the equity securities of any publicly traded company. Notwithstanding any provision in this Agreement, section 6.\n(b) (i) shall not be deemed to create post-employment non-competition restrictions on the Executive if the Executive’s primary residence\nis in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or\nactivity which such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the\nExecutive\nhas performed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or\notherwise had contact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or\nhas had access to Confidential Information which would assist in the Executive’s solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any\nemployee or independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent\ncontractor’s relationship with the Company or any of its Affiliates.\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the\nCompany in every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive’s duties to\nhis or her successor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage\nthe Company, the members of the Company’s Board or the Company’s officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company.\nExecutive hereby assigns to the Company all of Executive’s rights, title, and interest (including but not limited to all patent, trademark,\ncopyright and trade secret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within\nthe scope of Executive’s employment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of\nConfidential Information (“Work Product”). Executive further acknowledges and agrees that all copyrightable Work Product prepared by\nExecutive within the scope of Executive’s employment with the Company are “works made for hire” and, consequently, that the Company\nowns all copyrights thereto. The Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other\nproprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or\nconfirmation) requested by the Company to assign the Work Product to the Company and to permit the Company to enforce any patents,\ncopyrights or other proprietary rights to the Work Product. The Executive will not charge the Company for time spent in complying with these\nobligations. Notwithstanding the foregoing, any provision in this Agreement which provides that Executive shall assign, offer to assign, any of\nhis or her rights in an invention to the Company shall not apply to an invention that the Executive developed entirely on his or her own time\nwithout using the Company’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company’s business or actual demonstrably\nanticipated research or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions. The Company has expended a great deal of time, money and effort to develop and\nmaintain its confidential business information which, if misused or disclosed, could be very harmful to its business and could cause the\nCompany to be at a competitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this\nAgreement but for the Executive’s signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges\nthat he or she has and will have access to Confidential Information of the Company, and that the Company, in all fairness, needs certain\nprotection in order to ensure that the Executive does not misappropriate or misuse any trade secret or other Confidential Information or take\nany other action which could result in a loss of the goodwill of the\nCompany and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage over the\nCompany. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and enforceable\nin view of the Company’s legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business. To the\nextent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so\nlimited to the greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be\nunaffected and such adjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be\nirreparable and without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a\nbreach or threatened breach of any of the Executive’s obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in\naddition to any other legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to\ntemporary, preliminary and permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond),\ntogether with reasonable attorney’s fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there\nis a question as to the enforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct\ninconsistent with or contrary to such Section until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n7. Definitions.\n(a) Definition of “Affiliate.” For all purposes under this Agreement, “Affiliate” shall mean, with respect to any Person, all Persons\ndirectly or indirectly controlling, controlled by or under common control with such Person, where control may be by either management\nauthority, contract or equity interest. As used in this definition, “control” and correlative terms have the meanings ascribed to such words in\nRule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).\n(b) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean any of the following (i) the Executive’s willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the\nExecutive’s unauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive’s engaging in\nillegal conduct that is likely to be injurious to the Company; (iv) the Executive’s acts of fraud, dishonesty, or gross misconduct, or gross\nnegligence in connection with the business of the Company; (v) the Executive’s conviction of a felony; (vi) the Executive’s engaging in any act\nof moral turpitude reasonably likely to substantially and adversely affect the Company or its business; (vii) the Executive engaging in the\nillegal use of a controlled substance or using prescription medications unlawfully; (viii) the Executive’s abuse of alcohol; or (ix) the breach by\nthe Executive of a material term of this Agreement, including, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of “Change in Control.” For all purposes under this Agreement, “Change in Control” means the occurrence of any of the\nfollowing:\n(A) any Person (as defined herein) becomes the beneficial owner directly or indirectly (within the meaning of Rule 13d--3 under\nthe Exchange Act) of more than 50% of SAVVIS’ then outstanding voting securities (measured on the basis of voting power); or\n(B) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a\nmajority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or\nnomination for election by SAVVIS’ shareholders, was approved by a vote of at least a majority of the directors then comprising the\nIncumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose,\nany such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the\nelection or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the\nBoard; or\n(C) the closing of an agreement of merger or consolidation with any other corporation or business entity, other than (x) a merger or\nconsolidation which would result in the voting securities of SAVVIS outstanding immediately prior thereto continuing to represent\n(either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership\nof any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 50% of the combined voting\npower of the voting securities of SAVVIS or such surviving entity outstanding immediately after such merger or consolidation, or (y) a\nmerger or consolidation effected to implement a recapitalization of SAVVIS (or similar transaction) in which no Person acquires more\nthan 50% of the combined voting power of SAVVIS’ then outstanding securities;\n(D) the liquidation or dissolution of SAVVIS or the closing of a sale or disposition by SAVVIS of all or substantially all of its\nassets.\nFor purposes of this paragraph, “Person” means any individual, entity or group within the meaning of Section 3(a)(9) of the Exchange Act, as\nmodified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (aa) SAVVIS or any of its subsidiaries, (bb) a trustee or\nother fiduciary holding securities under an employee benefit plan of the Company, (cc) an underwriter temporarily holding securities pursuant to an\noffering of such securities, (dd) a corporation owned, directly or indirectly, by the shareholders of SAVVIS in substantially the same proportions as\ntheir ownership of SAVVIS common stock, (ee) any person or entity or group acquiring securities of SAVVIS pursuant to an issuance of securities\napproved by the Board, or (ff) any of the following entities or their affiliates: Welsh, Carson, Anderson & Stowe VIII L.P. and WCAS Management\nCorporation.\n(d) Definition of “Confidential Information.” For all purposes under this Agreement, “Confidential Information” shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom\nany of them plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or\nits Affiliates would assist in competition against them. Confidential Information includes without limitation such information relating to\n(i) trade secrets, the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the\nProducts, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and\nspecial needs of the customers of the Company and its Affiliates and (v) client lists and the people and organizations with whom the Company\nand its Affiliates have business relationships and the substance of those relationships. Confidential Information also includes any information\nthat the Company or any of its Affiliates have received, or may receive hereafter, belonging to customers or others with any understanding,\nexpress or implied, that the information would not be disclosed.\n(e) Definition of “Disability.” For all purposes under this Agreement, “Disability” shall mean the Executive becoming disabled during\nhis employment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is\nunable to perform substantially all\nof his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one hundred and eighty\n(180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of “Good Reason.” For all purposes under this Agreement, “Good Reason” shall mean the occurrence of any of the\nfollowing events: (i) a change in the Executive’s position that materially reduces his or her authority and level of responsibility as an officer of\nthe Company (provided that it is understood that the Chief Executive Officer of SAVVIS as a matter of management flexibility may direct a\nchange in the Executive’s reporting relationships or job title or a transfer of the Executive to a different officer position and such change or\ntransfer shall be not deemed to result in a reduction in the Executive’s authority or level of responsibility unless it is so substantial that a\nreasonable executive would feel compelled to resign under the circumstances), (ii) a material reduction in his or her level of compensation\n(including base salary and target bonus) or (iii) a relocation of his or her employment more than fifty (50) miles from the metropolitan area in\nwhich the Executive’s office is located at the time of resignation; provided, however, that in the case of the preceding clauses (i), (ii) and (iii),\nGood Reason shall only exist if effected without the Executive’s consent and is not a result of a Company-wide or department-wide policy or\npractice. Notwithstanding the foregoing, Good Reason shall only exist if (A) the Executive provides written notice to the Company within\nninety (90) days of the occurrence of the event or condition constituting Good Reason, (B) the Company is provided a period of thirty\n(30) days to cure the event or condition giving rise to Good Reason (the “Cure Period”) and fails to do so prior to the end of the Cure Period,\nand (C) the Executive terminates employment within thirty (30) days after the end of the Cure Period.\n(g) Definition of “Intellectual Property.” For all purposes under this Agreement, “Intellectual Property” shall mean inventions,\ndiscoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or\nconstituting trade secrets) conceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether\nor not during normal business hours or on or off Company premises) during the Executive’s employment and during the period of six\n(6) months immediately following termination of his employment that relate to either the Products or any prospective activity of the Company\nor any of its Affiliates or that make use of Confidential Information or any of the equipment or facilities of the Company or any of its\nAffiliates.\n(h) Definition of “Involuntary Termination.” For all purposes under this Agreement, “Involuntary Termination” shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of “Person.” For all purposes under this Agreement, “Person” shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of “Products.” For all purposes under this Agreement, “Products” shall mean all products planned, researched, developed,\ntested, manufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all\nservices provided or planned by the Company or any of its Affiliates, during the Executive’s employment.\n8. Miscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document,\nthen the provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the\nCompany with respect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company\n(other than the Executive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been\nduly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or\ndeposited with an overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or\nher at the home address which he or she most recently communicated to the Company in writing. In the case of SAVVIS or the Company,\nmailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of SAVVIS’ Senior Vice\nPresident and General Counsel.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is\nagreed to in writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either\nparty of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of\nany other condition or provision or of the same condition or provision at another time.\n(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of\nspecific duration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the\nExecutive, which rights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without\nCause and with or without notice.\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that\nany disputes arising under this Agreement are resolved in accordance with the parties’ expectations, this Agreement shall be governed by and\nconstrued under the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of\nMissouri shall be applied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and\nenforcement of this Agreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should\nMissouri law be found not to apply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall\nnot be payable, the provisions of Section 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought\nin the state courts of Missouri located in St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby\nconsents to personal jurisdiction in any such action brought in any such Missouri court, consents to service of process by the methods for\nnotice under Section 8(b) hereof made upon such party, and such party’s agent and waives any objection to venue in any such Missouri court\nor to any claim that any such Missouri court is an inconvenient forum.\n(g) Attorney’s Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party\nwith respect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its\nattorney’s fees in a reasonable amount incurred in connection with such claim.\n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties’\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to\nherein, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior\ndiscussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter\ncontained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the\nday and year first above written.\nSAVVIS, INC.\nEXECUTIVE\nBy:\nBy:\nName:\nName:\nTitle:	EX-10.3 2 dex103.htm FORM OF EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-\nCOMPETITION AGREEMENT\nEXHIBIT 10.3\nEMPILOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is\nentered into as of [ s ] by and between [ ] (the “Executive”) and SAV VIS, INC., a Delaware corporation, (“SAVVIS”) and all\nits subsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to\nsuch terms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\n+ the Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\n» the Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\n» the Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its Affiliates with\na significant competitive advantage; and\n+ the Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information (which\nincludes trade secrets and customer lists) and customer goodwill by all of their employees;\n*  Executive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to prevent\ncompetitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent\napplicable and in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall\nbe deemed a guarantee of employment with Company for any period of time.\n \n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive’s position as of the date of this Agreement is [ ]. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her\n4. position and such other duties and responsibilities on behalf of the Company and its Affiliates, reasonably related to that position, as may be\ndesignated from time to time by the Compensation Committee (the “Compensation Committee”) of the Board of Directors of SAVVIS (the\n“Board”) or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge\nto the advancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities\nhereunder. The Executive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or\nacademic position during the term of this Agreement, except as may otherwise be expressly approved in advance by the Compensation\nCommittee or other designee in writing.\nCompensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of [ Dollars ($ ) ] per annum, payable in accordance with the regular payroll practices of the\nCompany for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such base salary,\nas from time to time adjusted, is hereafter referred to as the “Base Salary”.\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company’s fiscal year ending December 31, [ ], the Executive will be eligible, at the\nCompensation Committee’s discretion, to receive a bonus payment equal to [ 1% of Base Salary, payable in accordance with the\nterms of the Company’s [ 1 Annual Incentive Plan.\n(ii) Commencing on January 1, [ ] and for the remainder of the term hereof, the Executive shall be entitled to participate in the\nCompany’s Annual Incentive Plan (the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee\nprior to the commencement of each fiscal year. Nothing contained herein shall obligate the Company to continue the Annual Incentive\nPlan. Any compensation paid to the Executive under the Annual Incentive Plan shall be in addition to the Base Salary. Except as\notherwise expressly provided under the terms of the Annual Incentive Plan or this Agreement, the Executive shall not be entitled to earn\nbonus or other compensation for services rendered to the Company.\n[Insert equity grant provisions if applicable.]\nTermination of Employment.\n(a) Executive’s employment with the Company may be terminated as follows:\n(i) by the Company with Cause;\n(ii) by the Company without Cause;\n(iii) upon Executive’s death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n(v) by Executive without Good Reason.\n(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as\nreferred to in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination,\nplus (ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for\nbusiness expenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other\nbenefits to which Executive may be entitled which provide for payment or other benefits following termination (such as under disability\ninsurance plan).\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to\nany amounts / benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then\ncurrent annual Base Salary for one year (the “Severance Payment”) and (y) at the discretion of the Compensation Committee, a pro-rated\nportion of the bonus that the Executive would be entitled to receive under the Company’s Annual Incentive Plan (“Bonus™). The pro-\nrated Bonus will be calculated by the compensation committee by extrapolating the Company’s anticipated full year performance based\non the current year performance to date and then multiplying the resulting full year extrapolation by a fraction the numerator of which is\nthe number of days during the calendar year the Executive worked in the year of Involuntary Termination up to the termination date and\nthe denominator of which is 365. Any such Bonus shall be paid not later than 30 days after the date of the Involuntary Termination. If the\nExecutive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet received payment\nfor the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual Incentive\nPlan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\nAny such Bonus shall be paid at the time bonuses are paid to other employees under the Annual Incentive Plan and not later than the end\nof the year during which the Involuntary Termination occurred.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months after a Change in Control (a “Change in\nControl Termination™), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other\nequity-based awards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control\nTermination shall, unless such Equity Awards are no longer outstanding, to the extent not then vested, fully vest and become exercisable\nas of such date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve\n(12) months from the date of the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the\nagreement evidencing such award; and (y) the Executive shall be entitled to the Bonus, which shall be paid not later than 30 days after\nthe date of the Change in Control Termination.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with\nthe Company’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision\nof this Agreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known\nand unknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to\nprosecute any legal action or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive’s Involuntary Termination;\n(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following\nthe effective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n(e) Health Care Benefit. Following an Involuntary Termination, the Company will pay to the Executive a monthly taxable cash payment\nin an amount equal (on an after tax basis, taking into account federal, state, local and foreign taxes) to the monthly COBRA (Consolidated\nOmnibus Budget Reconciliation Act) premium(s) in effect as of immediately prior to the Executive’s Involuntary Termination for the most\nexpensive level of coverage under the group health plan(s) applicable to the Executive at the time of the Executive’s Involuntary Termination.\nThe monthly payments will commence with the first month following the Executive’s Involuntary Termination and will terminate upon the\nearlier of (a) the Executive having received twelve monthly payments and (b) the Executive becoming re-employed and entitled to coverage\nunder the new employer’s group health plan. The Executive agrees to notify the Company in writing immediately upon becoming re-employed\nand entitled to coverage under a new employer’s group health plan.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to\nbe withheld by law.\n(g) Section 409A Savings Clause. This Agreement is intended to comply with the requirements of Section 409A of the Code (including\nthe exceptions thereto) to the extent applicable, and the Agreement shall be interpreted in a manner consistent with such requirements.\nNotwithstanding any other provision hereof, if any provision of the Agreement conflicts with the requirements of Section 409A of the Code (or\nan exception thereto), such provision shall be deemed reformed so as to comply with the requirements of Section 409A of the Code (or an\nexception thereto) and shall be interpreted and applied accordingly.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any event,\nwithin 2 1/2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the last\nday of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement during\nany calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the\nidentification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount\npayable by the Company to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required\nto be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the\nCompany will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after\nsuch six-month period together with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street\nJournal) in effect as of the dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive\nmay develop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to\nConfidential Information during the course of employment. The Executive will comply with the policies and procedures of the Company and\nits Affiliates for protecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or\nfor the proper performance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the\nExecutive incident to his employment or other association with the Company or any of its Affiliates. The Executive understands that this\nrestriction shall continue to apply after his employment terminates, regardless of the reason for such termination. The confidentiality obligation\nunder this Section 5 shall not apply to information which is generally known or readily available to the public at the time of disclosure or\nbecomes generally known through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to\nthe Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the\nCompany or its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be\nthe sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the\nCompany at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then\nin the Executive’s possession or control.\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative\ndemand or similar process) to disclose any of the Confidential Information, the Executive shall, where permitted under applicable law, rule or\nregulation, provide written notice to the Company promptly after such request so that the Company may, at its expense, seek a protective order\nor other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in connection with seeking such order or other\nremedy). In the event that such protective order or other remedy is not obtained, the Executive shall furnish only that portion of the\nConfidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential Information in the\ncourse of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have requested or\nrequired the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to obtain\nreliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute “Confidential\nInformation” under this Agreement.\nCertain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially\ninterfere with his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive’s employment and for twelve (12) months following termination of his or her employment for any\nreason (the “Restricted Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent,\nemployee, co-venturer or otherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake\nany planning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the\nExecutive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company\nor any of its Affiliates as conducted or under consideration at any time during the Executive’s employment, and further agrees not to\nwork or provide services, in any capacity, whether as an employee, independent contractor or otherwise, whether with or without\ncompensation, to any Person who is engaged in any business that is competitive with the business of the Company or any of its Affiliates\nfor which the Executive has provided services. The foregoing, however, shall not prevent the Executive’s passive ownership of two\npercent (2%) or less of the equity securities of any publicly traded company. Notwithstanding any provision in this Agreement, section 6.\n(b) (i) shall not be deemed to create post-employment non-competition restrictions on the Executive if the Executive’s primary residence\nis in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or\nactivity which such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the\nExecutive\nhas performed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or\notherwise had contact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or\nhas had access to Confidential Information which would assist in the Executive’s solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any\nemployee or independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent\ncontractor’s relationship with the Company or any of its Affiliates.\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the\nCompany in every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive’s duties to\nhis or her successor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage\nthe Company, the members of the Company’s Board or the Company’s officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company.\nExecutive hereby assigns to the Company all of Executive’s rights, title, and interest (including but not limited to all patent, trademark,\ncopyright and trade secret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within\nthe scope of Executive’s employment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of\nConfidential Information (“Work Product”). Executive further acknowledges and agrees that all copyrightable Work Product prepared by\nExecutive within the scope of Executive’s employment with the Company are “works made for hire” and, consequently, that the Company\nowns all copyrights thereto. The Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other\nproprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or\nconfirmation) requested by the Company to assign the Work Product to the Company and to permit the Company to enforce any patents,\ncopyrights or other proprietary rights to the Work Product. The Executive will not charge the Company for time spent in complying with these\nobligations. Notwithstanding the foregoing, any provision in this Agreement which provides that Executive shall assign, offer to assign, any of\nhis or her rights in an invention to the Company shall not apply to an invention that the Executive developed entirely on his or her own time\nwithout using the Company’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company’s business or actual demonstrably\nanticipated research or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions. The Company has expended a great deal of time, money and effort to develop and\nmaintain its confidential business information which, if misused or disclosed, could be very harmful to its business and could cause the\nCompany to be at a competitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this\nAgreement but for the Executive’s signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges\nthat he or she has and will have access to Confidential Information of the Company, and that the Company, in all fairness, needs certain\nprotection in order to ensure that the Executive does not misappropriate or misuse any trade secret or other Confidential Information or take\nany other action which could result in a loss of the goodwill of the\nCompany and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage over the\nCompany. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and enforceable\nin view of the Company’s legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business. To the\nextent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so\nlimited to the greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be\nunaffected and such adjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be\nirreparable and without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a\nbreach or threatened breach of any of the Executive’s obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in\naddition to any other legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to\ntemporary, preliminary and permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond),\ntogether with reasonable attorney’s fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there\nis a question as to the enforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct\ninconsistent with or contrary to such Section until after the question has been resolved by a final judgment of a court of competent jurisdiction.\nDefinitions.\n(a) Definition of “Affiliate.” For all purposes under this Agreement, “Affiliate” shall mean, with respect to any Person, all Persons\ndirectly or indirectly controlling, controlled by or under common control with such Person, where control may be by either management\nauthority, contract or equity interest. As used in this definition, “control” and correlative terms have the meanings ascribed to such words in\nRule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).\n(b) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean any of the following (i) the Executive’s willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the\nExecutive’s unauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive’s engaging in\nillegal conduct that is likely to be injurious to the Company; (iv) the Executive’s acts of fraud, dishonesty, or gross misconduct, or gross\nnegligence in connection with the business of the Company; (v) the Executive’s conviction of a felony; (vi) the Executive’s engaging in any act\nof moral turpitude reasonably likely to substantially and adversely affect the Company or its business; (vii) the Executive engaging in the\nillegal use of a controlled substance or using prescription medications unlawfully; (viii) the Executive’s abuse of alcohol; or (ix) the breach by\nthe Executive of a material term of this Agreement, including, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of “Change in Control.” For all purposes under this Agreement, “Change in Control” means the occurrence of any of the\nfollowing:\n(A) any Person (as defined herein) becomes the beneficial owner directly or indirectly (within the meaning of Rule 13d--3 under\nthe Exchange Act) of more than 50% of SAVVIS’ then outstanding voting securities (measured on the basis of voting power); or\n(B) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a\nmajority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or\nnomination for election by SAVVIS’ shareholders, was approved by a vote of at least a majority of the directors then comprising the\nIncumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose,\nany such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the\nelection or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the\nBoard; or\n(C) the closing of an agreement of merger or consolidation with any other corporation or business entity, other than (x) a merger or\nconsolidation which would result in the voting securities of SAVVIS outstanding immediately prior thereto continuing to represent\n(either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership\nof any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 50% of the combined voting\npower of the voting securities of SAVVIS or such surviving entity outstanding immediately after such merger or consolidation, or (y) a\nmerger or consolidation effected to implement a recapitalization of SAVVIS (or similar transaction) in which no Person acquires more\nthan 50% of the combined voting power of SAVVIS’ then outstanding securities;\n(D) the liquidation or dissolution of SAVVIS or the closing of a sale or disposition by SAVVIS of all or substantially all of its\nassets.\nFor purposes of this paragraph, “Person” means any individual, entity or group within the meaning of Section 3(a)(9) of the Exchange Act, as\nmodified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (aa) SAVVIS or any of its subsidiaries, (bb) a trustee or\nother fiduciary holding securities under an employee benefit plan of the Company, (cc) an underwriter temporarily holding securities pursuant to an\noffering of such securities, (dd) a corporation owned, directly or indirectly, by the shareholders of SAVVIS in substantially the same proportions as\ntheir ownership of SAVVIS common stock, (ee) any person or entity or group acquiring securities of SAVVIS pursuant to an issuance of securities\napproved by the Board, or (ff) any of the following entities or their affiliates: Welsh, Carson, Anderson & Stowe VIII L.P. and WCAS Management\nCorporation.\n(d) Definition of “Confidential Information.” For all purposes under this Agreement, “Confidential Information” shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom\nany of them plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or\nits Affiliates would assist in competition against them. Confidential Information includes without limitation such information relating to\n(i) trade secrets, the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the\nProducts, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and\nspecial needs of the customers of the Company and its Affiliates and (v) client lists and the people and organizations with whom the Company\nand its Affiliates have business relationships and the substance of those relationships. Confidential Information also includes any information\nthat the Company or any of its Affiliates have received, or may receive hereafter, belonging to customers or others with any understanding,\nexpress or implied, that the information would not be disclosed.\n(e) Definition of “Disability.” For all purposes under this Agreement, “Disability” shall mean the Executive becoming disabled during\nhis employment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is\nunable to perform substantially all\nof his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one hundred and eighty\n(180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of “Good Reason.” For all purposes under this Agreement, “Good Reason” shall mean the occurrence of any of the\nfollowing events: (i) a change in the Executive’s position that materially reduces his or her authority and level of responsibility as an officer of\nthe Company (provided that it is understood that the Chief Executive Officer of SAVVIS as a matter of management flexibility may direct a\nchange in the Executive’s reporting relationships or job title or a transfer of the Executive to a different officer position and such change or\ntransfer shall be not deemed to result in a reduction in the Executive’s authority or level of responsibility unless it is so substantial that a\nreasonable executive would feel compelled to resign under the circumstances), (ii) a material reduction in his or her level of compensation\n(including base salary and target bonus) or (iii) a relocation of his or her employment more than fifty (50) miles from the metropolitan area in\nwhich the Executive’s office is located at the time of resignation; provided, however, that in the case of the preceding clauses (i), (ii) and (iii),\nGood Reason shall only exist if effected without the Executive’s consent and is not a result of a Company-wide or department-wide policy or\npractice. Notwithstanding the foregoing, Good Reason shall only exist if (A) the Executive provides written notice to the Company within\nninety (90) days of the occurrence of the event or condition constituting Good Reason, (B) the Company is provided a period of thirty\n(30) days to cure the event or condition giving rise to Good Reason (the “Cure Period”) and fails to do so prior to the end of the Cure Period,\nand (C) the Executive terminates employment within thirty (30) days after the end of the Cure Period.\n(g) Definition of “Intellectual Property.” For all purposes under this Agreement, “Intellectual Property” shall mean inventions,\ndiscoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or\nconstituting trade secrets) conceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether\nor not during normal business hours or on or off Company premises) during the Executive’s employment and during the period of six\n(6) months immediately following termination of his employment that relate to either the Products or any prospective activity of the Company\nor any of its Affiliates or that make use of Confidential Information or any of the equipment or facilities of the Company or any of its\nAffiliates.\n(h) Definition of “Involuntary Termination.” For all purposes under this Agreement, “Involuntary Termination” shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of “Person.” For all purposes under this Agreement, “Person” shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of “Products.” For all purposes under this Agreement, “Products” shall mean all products planned, researched, developed,\ntested, manufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all\nservices provided or planned by the Company or any of its Affiliates, during the Executive’s employment.\nMiscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document,\nthen the provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the\nCompany with respect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company\n(other than the Executive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been\nduly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or\ndeposited with an overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or\nher at the home address which he or she most recently communicated to the Company in writing. In the case of SAVVIS or the Company,\nmailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of SAVVIS’ Senior Vice\nPresident and General Counsel.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is\nagreed to in writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either\nparty of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of\nany other condition or provision or of the same condition or provision at another time.\n(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of\nspecific duration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the\nExecutive, which rights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without\nCause and with or without notice.\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that\nany disputes arising under this Agreement are resolved in accordance with the parties’ expectations, this Agreement shall be governed by and\nconstrued under the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of\nMissouri shall be applied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and\nenforcement of this Agreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should\nMissouri law be found not to apply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall\nnot be payable, the provisions of Section 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought\nin the state courts of Missouri located in St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby\nconsents to personal jurisdiction in any such action brought in any such Missouri court, consents to service of process by the methods for\nnotice under Section 8(b) hereof made upon such party, and such party’s agent and waives any objection to venue in any such Missouri court\nor to any claim that any such Missouri court is an inconvenient forum.\n \n(g) Attorney’s Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party\nwith respect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its\nattorney’s fees in a reasonable amount incurred in connection with such claim.\n \n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties’\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to\nherein, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior\ndiscussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter\ncontained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the\nday and year first above written. SAVVIS, INC. EXECUTIVE\nBy: By:\nName: Name:\nTitle:	EX-10.3 2 dex103.htm FORM OF EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-\nCOMPETITION AGREEMENT\nEXHIBIT 10.3\nEMPLOYMENT,. CONFIDENTIALITY,. SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this "Agreement") is\nentered into as of [\n] by and between [\n(the "Executive") and SAVVIS, INC., a Delaware corporation, ("SAVVIS") and all\nits subsidiaries (collectively referred to as the "Company"). Capitalized terms used but not defined herein have the respective meanings ascribed to\nsuch terms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\nthe Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\nthe Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\nthe Company and its Affiliates possess Confidentia Information and customer goodwill that provide the Company and its Affiliates with\na significant competitive advantage; and\nthe Company's and its Affiliates' success depends to a substantial extent upon the protection of its Confidential Information (which\nincludes trade secrets and customer lists) and customer goodwill by all of their employees;\nExecutive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to prevent\ncompetitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1.\nTerm of Agreement This Agreement will remain in effect from the date hereof until the date the Executive's employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent\napplicable and in accordance with their terms: Sections 4, 5, 6 and 8. Executive's employment is "at-will", and nothing contained herein shall\nbe deemed a guarantee of employment with Company for any period of time.\n2.\nCapacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive's position as of the date of this Agreement is [\n]. During the term hereof, Executive will be employed by the Company on\na\nfull-time basis and shall perform the duties and responsibilities of his or her\nposition and such other duties and responsibilities on behalf of the Company and its Affiliates, reasonably related to that position, as may\nbe\ndesignated from time to time by the Compensation Committee (the "Compensation Committee") of the Board of Directors of SAVVIS (the\n"Board") or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge\nto the advancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities\nhereunder. The Executive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or\nacademic position during the term of this Agreement, except as may otherwise be expressly approved in advance by the Compensation\nCommittee or other designee in writing.\n3.\nCompensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive's duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary.. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of I\nDollars ($\n) 1 per annum, payable in accordance with the regular payroll practices of the\nCompany for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such base salary,\nas from time to time adjusted, is hereafter referred to as the "Base Salary".\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company's fiscal year ending December 31, [ ], the Executive will be eligible, at the\nCompensation Committee's discretion, to receive a bonus payment equal to\n]% of Base Salary, payable in accordance with the\nterms of the Company's\n1 Annual Incentive Plan.\n(ii) Commencing on January 1, [ 1 and for the remainder of the term hereof, the Executive shall be entitled to participate in the\nCompany's Annual Incentive Plan (the "Annual Incentive Plan") on terms to be determined annually by the Compensation Committee\nprior to the commencement of each fiscal year. Nothing contained herein shall obligate the Company to continue the Annual Incentive\nPlan. Any compensation paid to the Executive under the Annual Incentive Plan shall be in addition to the Base Salary. Except as\notherwise expressly provided under the terms of the Annual Incentive Plan or this Agreement, the Executive shall not be entitled to earn\nbonus or other compensation for services rendered to the Company.\n[Insert equity grant provisions if applicable.]\n4.\nTermination of Employment.\n(a) Executive's employment with the Company may be terminated as follows:\n(i) by the Company with Cause;\n(ii) by the Company without Cause;\n(iii) upon Executive's death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n(v) by Executive without Good Reason.\n(b) Upon termination of Executive's employment for any reason, all rights and obligations under this Agreement shall cease, except as\nreferred to in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination,\nplus (ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for\nbusiness expenses incurred prior to termination in accordance with the Company's expense and reimbursement policy, plus (iii) any other\nbenefits to which Executive may be entitled which provide for payment or other benefits following termination (such as under disability\ninsurance plan).\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to\nany amounts benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then\ncurrent annual Base Salary for one year (the "Severance Payment") and (y) at the discretion of the Compensation Committee, a pro-rated\nportion of the bonus that the Executive would be entitled to receive under the Company's Annual Incentive Plan ("Bonus"). The pro-\nrated Bonus will be calculated by the compensation committee by extrapolating the Company's anticipated full year performance based\non\nthe\ncurrent\nyear\nperformance\nto\ndate\nand\nthen\nmultiplying\nthe\nresulting\nfull\nyear\nextrapolation\nby\na\nfraction\nthe\nnumerator\nof\nwhich\nis\nthe number of days during the calendar year the Executive worked in the year of Involuntary Termination up to the termination date and\nthe denominator of which is 365. Any such Bonus shall be paid not later than 30 days after the date of the Involuntary Termination. If the\nExecutive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet received payment\nfor the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual Incentive\nPlan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\nAny such Bonus shall be paid at the time bonuses are paid to other employees under the Annual Incentive Plan and not later than the end\nof the year during which the Involuntary Termination occurred.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months after a Change in Control (a "Change in\nControl Termination"), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other\nequity-based awards (each an "Equity Award") that were outstanding immediately prior to the effective date of the Change in Control\nTermination shall, unless such Equity Awards are no longer outstanding, to the extent not then vested, fully vest and become exercisable\nas of such date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve\n(12) months from the date of the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in\nthe\nagreement evidencing such award; and (y) the Executive shall be entitled to the Bonus, which shall be paid not later than 30 days after\nthe date of the Change in Control Termination.\n(d) Timing of and Conditions to Payment Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with\nthe Company's standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision\nof this Agreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known\nand unknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to\nprosecute any legal action or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive's Involuntary Termination;\n(iv) the date of the Company's receipt of the Executive's executed General Release, which must be no later than 21 days following\nthe effective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive's executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended ("Code"), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive's effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n(e) Health Care Benefit. Following an Involuntary Termination, the Company will pay to the Executive a monthly taxable cash payment\nin an amount equal (on an after tax basis, taking into account federal, state, local and foreign taxes) to the monthly COBRA (Consolidated\nOmnibus Budget Reconciliation Act) premium(s) in effect as of immediately prior to the Executive's Involuntary Termination for the most\nexpensive level of coverage under the group health plan(s) applicable to the Executive at the time of the Executive's Involuntary Termination.\nThe monthly payments will commence with the first month following the Executive's Involuntary Termination and will terminate upon the\nearlier of (a) the Executive having received twelve monthly payments and (b) the Executive becoming re-employed and entitled to coverage\nunder the new employer's group health plan. The Executive agrees to notify the Company in writing immediately upon becoming re-employed\nand entitled to coverage under a new employer's group health plan.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to\nbe withheld by law.\n(g) Section 409A Savings Clause. This Agreement is intended to comply with the requirements of Section 409A of the Code (including\nthe exceptions thereto) to the extent applicable, and the Agreement shall be interpreted in a manner consistent with such requirements.\nNotwithstanding any other provision hereof, if any provision of the Agreement conflicts with the requirements of Section 409A\nof\nthe\nCode\n(or\nan exception thereto), such provision shall be deemed reformed so as to comply with the requirements of Section 409A of the Code (or an\nexception thereto) and shall be interpreted and applied accordingly.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any event,\nwithin 21/2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the last\nday of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement during\nany calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the\nidentification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount\npayable by the Company to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required\nto be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the\nCompany will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after\nsuch six-month period together with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street\nJournal) in effect as of the dates the payments should otherwise have been provided.\n5.\nConfidential Information.\n(a)\nThe Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive\nmay develop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to\nConfidential Information during the course of employment. The Executive will comply with the policies and procedures of the Company and\nits Affiliates for protecting Confidential Information and shall not disclose to any Person or use, other than as required by applicable law or\nfor the proper performance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the\nExecutive incident to his employment or other association with the Company or any of its Affiliates. The Executive understands that this\nrestriction shall continue to apply after his employment terminates, regardless of the reason for such termination. The confidentiality obligation\nunder this Section 5 shall not apply to information which is generally known or readily available to the public at the time of disclosure or\nbecomes generally known through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to\nthe Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the\nCompany or its Affiliates and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be\nthe\nsole\nand\nexclusive\nproperty of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to\nthe\nCompany at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then\nin the Executive's possession or control.\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative\ndemand or similar process) to disclose any of the Confidential Information, the Executive shall, where permitted under applicable law, rule or\nregulation, provide written notice to the Company promptly after such request so that the Company may, at its expense, seek a protective order\nor other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in connection with seeking such order or other\nremedy). In the event that such protective order or other remedy is not obtained, the Executive shall furnish only that portion of the\nConfidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential Information in the\ncourse of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have requested or\nrequired the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to obtain\nreliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute "Confidential\nInformation" under this Agreement.\n6.\nCertain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially\ninterfere with his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive's employment and for twelve (12) months following termination of his or her employment for any\nreason (the "Restricted Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent,\nemployee, co-venturer or otherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake\nany planning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the\nExecutive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company\nor any of its Affiliates as conducted or under consideration at any time during the Executive's employment, and further agrees not to\nwork or provide services, in any capacity, whether as an employee, independent contractor or otherwise, whether with or without\ncompensation to any Person who is engaged in any business that is competitive with the business of the Company or any of its Affiliates\nfor which the Executive has provided services. The foregoing, however, shall not prevent the Executive's passive ownership of two\npercent (2%) or less of the equity securities of any publicly traded company. Notwithstanding any provision in this Agreement, section 6.\n(b) (i) shall not be deemed to create post-employment non-competition restrictions on the Executive if the Executive's primary residence\nis in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or\nactivity which such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the\nExecutive\nhas performed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or\notherwise had contact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or\nhas had access to Confidential Information which would assist in the Executive's solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any\nemployee or independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent\ncontractor's relationship with the Company or any of its Affiliates.\n(c) Cooperation and Non-Disparagement The Executive agrees that, during the Restricted Period, he or she shall cooperate with\nthe\nCompany in every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive's duties to\nhis or her successor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage\nthe Company, the members of the Company's Board or the Company's officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company.\nExecutive hereby assigns to the Company all of Executive's rights, title, and interest (including but not limited to all patent, trademark,\ncopyright and trade secret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within\nthe scope of Executive's employment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of\nConfidential Information ("Work Product"). Executive further acknowledges and agrees that all copyrightable Work Product prepared by\nExecutive within the scope of Executive's employment with the Company are "works made for hire" and, consequently, that the Company\nowns all copyrights thereto. The Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other\nproprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or\nconfirmation) requested by the Company to assign the Work Product to the Company and to permit the Company to enforce any patents,\ncopyrights or other proprietary rights to the Work Product. The Executive will not charge the Company for time spent in complying with these\nobligations. Notwithstanding the foregoing, any provision in this Agreement which provides that Executive shall assign, offer to assign, any of\nhis or her rights in an invention to the Company shall not apply to an invention that the Executive developed entirely on his or her own time\nwithout using the Company's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company's business or actual demonstrably\nanticipated research or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions The Company has expended a great deal of time, money and effort to develop and\nmaintain its confidential business information which, if misused or disclosed, could be very harmful to its business and could cause the\nCompany to be at a competitive disadvantage in the marketplace The Company would not be willing to proceed with the execution of this\nAgreement but for the Executive's signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges\nthat he or she has and will have access to Confidential Information of the Company, and that the Company, in all fairness, needs certain\nprotection in order to ensure that the Executive does not misappropriate or misuse any trade secret or other Confidential Information or take\nany other action which could result in a loss of the goodwill of the\nCompany and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage over the\nCompany. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and enforceable\nin view of the Company's legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business. To the\nextent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so\nlimited to the greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be\nunaffected and such adjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be\nirreparable and without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a\nbreach or threatened breach of any of the Executive's obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in\naddition to any other legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to\ntemporary, preliminary and permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond),\ntogether with reasonable attorney's fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there\nis a question as to the enforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct\ninconsistent with or contrary to such Section until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n7. Definitions.\n(a) Definition of "Affiliate." For all purposes under this Agreement, "Affiliate" shall mean, with respect to any Person, all Persons\ndirectly or indirectly controlling, controlled by or under common control with such Person, where control may be by either management\nauthority, contract or equity interest. As used in this definition, "control" and correlative terms have the meanings ascribed to such words in\nRule 12b-2 of the Securities Exchange Act of 1934, as amended (the "Exchange Act").\n(b) Definition of "Cause." For all purposes under this Agreement, "Cause" shall mean any of the following (i) the Executive's willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the\nExecutive's unauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive's engaging in\nillegal conduct that is likely to be injurious to the Company; (iv) the Executive's acts of fraud, dishonesty, or gross misconduct, or gross\nnegligence in connection with the business of the Company; (v) the Executive's conviction of a felony; (vi) the Executive's engaging in any act\nof moral turpitude reasonably likely to substantially and adversely affect the Company or its business; (vii) the Executive engaging in the\nillegal use of a controlled substance or using prescription medications unlawfully; (viii) the Executive's abuse of alcohol; or (ix) the breach by\nthe Executive of a material term of this Agreement, including, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of "Change in Control.' For all purposes under this Agreement, "Change in Control" means the occurrence of any of the\nfollowing:\n(A) any Person (as defined herein) becomes the beneficial owner directly or indirectly (within the meaning of Rule 13d--3\nunder\nthe Exchange Act) of more than 50% of SAVVIS' then outstanding voting securities (measured on the basis of voting power); or\n(B)\nIndividuals who, as of the date hereof, constitute the Board (the "Incumbent Board") cease for any reason to constitute at\nleast\na\nmajority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or\nnomination for election by SAVVIS' shareholders, was approved by a vote of at least a majority of the directors then comprising the\nIncumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose,\nany such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the\nelection or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the\nBoard; or\n(C) the closing of an agreement of merger or consolidation with any other corporation or business entity, other than (x) a merger or\nconsolidation which would result in the voting securities of SAVVIS outstanding immediately prior thereto continuing to represent\n(either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership\nof any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 50% of the combined voting\npower of the voting securities of SAVVIS or such surviving entity outstanding immediately after such merger or consolidation, or (y) a\nmerger or consolidation effected to implement a recapitalization of SAVVIS (or similar transaction) in which no Person acquires more\nthan 50% of the combined voting power of SAVVIS' then outstanding securities;\n(D) the liquidation or dissolution of SAVVIS or the closing of a sale or disposition by SAVVIS of all or substantially all of its\nassets.\nFor purposes of this paragraph, "Person" means any individual, entity or group within the meaning of Section 3(a)(9) of the Exchange Act, as\nmodified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (aa) SAVVIS or any of its subsidiaries, (bb) a trustee or\nother fiduciary holding securities under an employee benefit plan of the Company, (cc) an underwriter temporarily holding securities pursuant to an\noffering of such securities, (dd) a corporation owned, directly or indirectly, by the shareholders of SAVVIS in substantially the same proportions as\ntheir ownership of SAVVIS common stock, (ee) any person or entity or group acquiring securities of SAVVIS pursuant to an issuance of securities\napproved by the Board, or (ff) any of the following entities or their affiliates: Welsh, Carson, Anderson & Stowe VIII L.P. and WCAS Management\nCorporation.\n(d) Definition of "Confidential Information." For all purposes under this Agreement, "Confidential Information" shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom\nany of them plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or\nits Affiliates would assist in competition against them. Confidential Information includes without limitation such information relating to\n(i) trade secrets, the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the\nProducts, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and\nspecial needs of the customers of the Company and its Affiliates and (v) client lists and the people and organizations with whom the Company\nand\nits Affiliates have business relationships and the substance of those relationships. Confidential Information also includes any information\nthat the Company or any of its Affiliates have received, or may receive hereafter, belonging to customers or others with any understanding,\nexpress or implied, that the information would not be disclosed.\n(e) Definition of "Disability.." For all purposes under this Agreement, "Disability" shall mean the Executive becoming disabled during\nhis employment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is\nunable to perform substantially all\nof his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one hundred and eighty\n(180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of "Good Reason." For all purposes under this Agreement, "Good Reason" shall mean the occurrence of any of the\nfollowing events: (i) a change in the Executive's position that materially reduces his or her authority and level of responsibility as an officer of\nthe\nCompany\n(provided\nthat\nit\nis\nunderstood\nthat\nthe\nChief\nExecutive\nOfficer\nof\nSAVVIS\nas\na\nmatter\nof\nmanagement\nflexibility\nmay\ndirect\na\nchange in the Executive's reporting relationships or job title or a transfer of the Executive to a different officer position and such change or\ntransfer shall be not deemed to result in a reduction in the Executive's authority or level of responsibility unless it is so substantial that a\nreasonable executive would feel compelled to resign under the circumstances), (ii) a material reduction in his or her level of compensation\n(including base salary and target bonus) or (iii) a relocation of his or her employment more than fifty (50) miles from the metropolitan area in\nwhich the Executive's office is located at the time of resignation; provided, however, that in the case of the preceding clauses (i), (ii) and (iii),\nGood Reason shall only exist if effected without the Executive's consent and is not a result of a Company-wide or department-wid policy or\npractice. Notwithstanding the foregoing, Good Reason shall only exist if (A) the Executive provides written notice to the Company within\nninety (90) days of the occurrence of the event or condition constituting Good Reason, (B) the Company is provided a period of thirty\n(30) days to cure the event or condition giving rise to Good Reason (the "Cure Period") and fails to do so prior to the end of the Cure Period,\nand (C) the Executive terminates employment within thirty (30) days after the end of the Cure Period.\n(g) Definition of "Intellectual Property." For all purposes under this Agreement, "Intellectual Property" shall mean inventions,\ndiscoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or\nconstituting trade secrets) conceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether\nor not during normal business hours or on or off Company premises) during the Executive's employment and during the period of six\n(6) months immediately following termination of his employment that relate to either the Products or any prospective activity of the Company\nor\nany of its Affiliates or that make use of Confidential Information or any of the equipment or facilities of the Company or any of its\nAffiliates.\n(h) Definition of "Involuntary Termination." For all purposes under this Agreement, "Involuntary Termination" shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of "Person." For all purposes under this Agreement, "Person" shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of "Products." For all purposes under this Agreement, "Products" shall mean all products planned, researched, developed,\ntested, manufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all\nservices provided or planned by the Company or any of its Affiliates, during the Executive's employment.\n8.\nMiscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document,\nthen the provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the\nCompany with respect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company\n(other than the Executive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been\nduly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or\ndeposited with an overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or\nher\nat the home address which he or she most recently communicated to the Company in writing. In the case of SAVVIS or the Company,\nmailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of SAVVIS' Senior Vice\nPresident and General Counsel.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is\nagreed to in writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either\nparty of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of\nany other condition or provision or of the same condition or provision at another time.\n(d) Severability.. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of\nspecific duration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the\nExecutive, which rights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without\nCause and with or without notice.\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that\nany disputes arising under this Agreement are resolved in accordance with the parties' expectations, this Agreement shall be governed by and\nconstrued under the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of\nMissouri shall be applied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and\nenforcement of this Agreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should\nMissouri law be found not to apply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall\nnot be payable, the provisions of Section 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought\nin the state courts of Missouri located in St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby\nconsents to personal jurisdiction in any such action brought in any such Missouri court, consents to service of process by the methods for\nnotice under Section 8(b) hereof made upon such party, and such party's agent and waives any objection to venue in any such Missouri court\nor to any claim that any such Missouri court is an inconvenient forum.\n(g) Attorney's Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party\nwith respect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its\nattorney's fees in a reasonable amount incurred in connection with such claim.\n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties'\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to\nherein, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior\ndiscussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter\ncontained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the\nday and year first above written.\nSAVVIS, INC.\nEXECUTIVE\nBy:\nBy:\nName:\nName:\nTitle:	EX-10.3 2 dex103.htm FORM OF EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-\nCOMPETITION AGREEMENT\nEXHIBIT 10.3\nEMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is\nentered into as of [\n,\n] by and between [\n] (the “Executive”) and SAVVIS, INC., a Delaware corporation, (“SAVVIS”) and all\nits subsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to\nsuch terms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\n•\nthe Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\n•\nthe Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\n•\nthe Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its Affiliates with\na significant competitive advantage; and\n•\nthe Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information (which\nincludes trade secrets and customer lists) and customer goodwill by all of their employees;\n•\nExecutive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to prevent\ncompetitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent\napplicable and in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall\nbe deemed a guarantee of employment with Company for any period of time.\n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive’s position as of the date of this Agreement is [\n]. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her\nposition and such other duties and responsibilities on behalf of the Company and its Affiliates, reasonably related to that position, as may be\ndesignated from time to time by the Compensation Committee (the “Compensation Committee”) of the Board of Directors of SAVVIS (the\n“Board”) or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge\nto the advancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities\nhereunder. The Executive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or\nacademic position during the term of this Agreement, except as may otherwise be expressly approved in advance by the Compensation\nCommittee or other designee in writing.\n3. Compensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of [\nDollars ($\n) ] per annum, payable in accordance with the regular payroll practices of the\nCompany for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such base salary,\nas from time to time adjusted, is hereafter referred to as the “Base Salary”.\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company’s fiscal year ending December 31, [ ], the Executive will be eligible, at the\nCompensation Committee’s discretion, to receive a bonus payment equal to [\n]% of Base Salary, payable in accordance with the\nterms of the Company’s [\n] Annual Incentive Plan.\n(ii) Commencing on January 1, [ ] and for the remainder of the term hereof, the Executive shall be entitled to participate in the\nCompany’s Annual Incentive Plan (the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee\nprior to the commencement of each fiscal year. Nothing contained herein shall obligate the Company to continue the Annual Incentive\nPlan. Any compensation paid to the Executive under the Annual Incentive Plan shall be in addition to the Base Salary. Except as\notherwise expressly provided under the terms of the Annual Incentive Plan or this Agreement, the Executive shall not be entitled to earn\nbonus or other compensation for services rendered to the Company.\n[Insert equity grant provisions if applicable.]\n4. Termination of Employment.\n(a) Executive’s employment with the Company may be terminated as follows:\n(i) by the Company with Cause;\n(ii) by the Company without Cause;\n(iii) upon Executive’s death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n(v) by Executive without Good Reason.\n(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as\nreferred to in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination,\nplus (ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for\nbusiness expenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other\nbenefits to which Executive may be entitled which provide for payment or other benefits following termination (such as under disability\ninsurance plan).\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to\nany amounts / benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then\ncurrent annual Base Salary for one year (the “Severance Payment”) and (y) at the discretion of the Compensation Committee, a pro-rated\nportion of the bonus that the Executive would be entitled to receive under the Company’s Annual Incentive Plan (“Bonus”). The pro-\nrated Bonus will be calculated by the compensation committee by extrapolating the Company’s anticipated full year performance based\non the current year performance to date and then multiplying the resulting full year extrapolation by a fraction the numerator of which is\nthe number of days during the calendar year the Executive worked in the year of Involuntary Termination up to the termination date and\nthe denominator of which is 365. Any such Bonus shall be paid not later than 30 days after the date of the Involuntary Termination. If the\nExecutive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet received payment\nfor the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual Incentive\nPlan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\nAny such Bonus shall be paid at the time bonuses are paid to other employees under the Annual Incentive Plan and not later than the end\nof the year during which the Involuntary Termination occurred.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months after a Change in Control (a “Change in\nControl Termination”), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other\nequity-based awards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control\nTermination shall, unless such Equity Awards are no longer outstanding, to the extent not then vested, fully vest and become exercisable\nas of such date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve\n(12) months from the date of the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the\nagreement evidencing such award; and (y) the Executive shall be entitled to the Bonus, which shall be paid not later than 30 days after\nthe date of the Change in Control Termination.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with\nthe Company’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision\nof this Agreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known\nand unknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to\nprosecute any legal action or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive’s Involuntary Termination;\n(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following\nthe effective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n(e) Health Care Benefit. Following an Involuntary Termination, the Company will pay to the Executive a monthly taxable cash payment\nin an amount equal (on an after tax basis, taking into account federal, state, local and foreign taxes) to the monthly COBRA (Consolidated\nOmnibus Budget Reconciliation Act) premium(s) in effect as of immediately prior to the Executive’s Involuntary Termination for the most\nexpensive level of coverage under the group health plan(s) applicable to the Executive at the time of the Executive’s Involuntary Termination.\nThe monthly payments will commence with the first month following the Executive’s Involuntary Termination and will terminate upon the\nearlier of (a) the Executive having received twelve monthly payments and (b) the Executive becoming re-employed and entitled to coverage\nunder the new employer’s group health plan. The Executive agrees to notify the Company in writing immediately upon becoming re-employed\nand entitled to coverage under a new employer’s group health plan.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to\nbe withheld by law.\n(g) Section 409A Savings Clause. This Agreement is intended to comply with the requirements of Section 409A of the Code (including\nthe exceptions thereto) to the extent applicable, and the Agreement shall be interpreted in a manner consistent with such requirements.\nNotwithstanding any other provision hereof, if any provision of the Agreement conflicts with the requirements of Section 409A of the Code (or\nan exception thereto), such provision shall be deemed reformed so as to comply with the requirements of Section 409A of the Code (or an\nexception thereto) and shall be interpreted and applied accordingly.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any event,\nwithin 2 /2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the last\nday of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement during\nany calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the\nidentification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount\npayable by the Company to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required\nto be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the\nCompany will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after\nsuch six-month period together with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street\nJournal) in effect as of the dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive\nmay develop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to\nConfidential Information during the course of employment. The Executive will comply with the policies and procedures of the Company and\nits Affiliates for protecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or\nfor the proper performance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the\nExecutive incident to his employment or other association with the Company or any of its Affiliates. The Executive understands that this\nrestriction shall continue to apply after his employment terminates, regardless of the reason for such termination. The confidentiality obligation\nunder this Section 5 shall not apply to information which is generally known or readily available to the public at the time of disclosure or\nbecomes generally known through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to\nthe Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the\nCompany or its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be\nthe sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the\nCompany at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then\nin the Executive’s possession or control.\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative\n1\ndemand or similar process) to disclose any of the Confidential Information, the Executive shall, where permitted under applicable law, rule or\nregulation, provide written notice to the Company promptly after such request so that the Company may, at its expense, seek a protective order\nor other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in connection with seeking such order or other\nremedy). In the event that such protective order or other remedy is not obtained, the Executive shall furnish only that portion of the\nConfidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential Information in the\ncourse of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have requested or\nrequired the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to obtain\nreliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute “Confidential\nInformation” under this Agreement.\n6. Certain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially\ninterfere with his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive’s employment and for twelve (12) months following termination of his or her employment for any\nreason (the “Restricted Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent,\nemployee, co-venturer or otherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake\nany planning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the\nExecutive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company\nor any of its Affiliates as conducted or under consideration at any time during the Executive’s employment, and further agrees not to\nwork or provide services, in any capacity, whether as an employee, independent contractor or otherwise, whether with or without\ncompensation, to any Person who is engaged in any business that is competitive with the business of the Company or any of its Affiliates\nfor which the Executive has provided services. The foregoing, however, shall not prevent the Executive’s passive ownership of two\npercent (2%) or less of the equity securities of any publicly traded company. Notwithstanding any provision in this Agreement, section 6.\n(b) (i) shall not be deemed to create post-employment non-competition restrictions on the Executive if the Executive’s primary residence\nis in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or\nactivity which such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the\nExecutive\nhas performed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or\notherwise had contact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or\nhas had access to Confidential Information which would assist in the Executive’s solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any\nemployee or independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent\ncontractor’s relationship with the Company or any of its Affiliates.\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the\nCompany in every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive’s duties to\nhis or her successor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage\nthe Company, the members of the Company’s Board or the Company’s officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company.\nExecutive hereby assigns to the Company all of Executive’s rights, title, and interest (including but not limited to all patent, trademark,\ncopyright and trade secret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within\nthe scope of Executive’s employment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of\nConfidential Information (“Work Product”). Executive further acknowledges and agrees that all copyrightable Work Product prepared by\nExecutive within the scope of Executive’s employment with the Company are “works made for hire” and, consequently, that the Company\nowns all copyrights thereto. The Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other\nproprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or\nconfirmation) requested by the Company to assign the Work Product to the Company and to permit the Company to enforce any patents,\ncopyrights or other proprietary rights to the Work Product. The Executive will not charge the Company for time spent in complying with these\nobligations. Notwithstanding the foregoing, any provision in this Agreement which provides that Executive shall assign, offer to assign, any of\nhis or her rights in an invention to the Company shall not apply to an invention that the Executive developed entirely on his or her own time\nwithout using the Company’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company’s business or actual demonstrably\nanticipated research or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions. The Company has expended a great deal of time, money and effort to develop and\nmaintain its confidential business information which, if misused or disclosed, could be very harmful to its business and could cause the\nCompany to be at a competitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this\nAgreement but for the Executive’s signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges\nthat he or she has and will have access to Confidential Information of the Company, and that the Company, in all fairness, needs certain\nprotection in order to ensure that the Executive does not misappropriate or misuse any trade secret or other Confidential Information or take\nany other action which could result in a loss of the goodwill of the\nCompany and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage over the\nCompany. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and enforceable\nin view of the Company’s legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business. To the\nextent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so\nlimited to the greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be\nunaffected and such adjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be\nirreparable and without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a\nbreach or threatened breach of any of the Executive’s obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in\naddition to any other legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to\ntemporary, preliminary and permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond),\ntogether with reasonable attorney’s fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there\nis a question as to the enforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct\ninconsistent with or contrary to such Section until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n7. Definitions.\n(a) Definition of “Affiliate.” For all purposes under this Agreement, “Affiliate” shall mean, with respect to any Person, all Persons\ndirectly or indirectly controlling, controlled by or under common control with such Person, where control may be by either management\nauthority, contract or equity interest. As used in this definition, “control” and correlative terms have the meanings ascribed to such words in\nRule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).\n(b) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean any of the following (i) the Executive’s willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the\nExecutive’s unauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive’s engaging in\nillegal conduct that is likely to be injurious to the Company; (iv) the Executive’s acts of fraud, dishonesty, or gross misconduct, or gross\nnegligence in connection with the business of the Company; (v) the Executive’s conviction of a felony; (vi) the Executive’s engaging in any act\nof moral turpitude reasonably likely to substantially and adversely affect the Company or its business; (vii) the Executive engaging in the\nillegal use of a controlled substance or using prescription medications unlawfully; (viii) the Executive’s abuse of alcohol; or (ix) the breach by\nthe Executive of a material term of this Agreement, including, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of “Change in Control.” For all purposes under this Agreement, “Change in Control” means the occurrence of any of the\nfollowing:\n(A) any Person (as defined herein) becomes the beneficial owner directly or indirectly (within the meaning of Rule 13d--3 under\nthe Exchange Act) of more than 50% of SAVVIS’ then outstanding voting securities (measured on the basis of voting power); or\n(B) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a\nmajority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or\nnomination for election by SAVVIS’ shareholders, was approved by a vote of at least a majority of the directors then comprising the\nIncumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose,\nany such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the\nelection or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the\nBoard; or\n(C) the closing of an agreement of merger or consolidation with any other corporation or business entity, other than (x) a merger or\nconsolidation which would result in the voting securities of SAVVIS outstanding immediately prior thereto continuing to represent\n(either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership\nof any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 50% of the combined voting\npower of the voting securities of SAVVIS or such surviving entity outstanding immediately after such merger or consolidation, or (y) a\nmerger or consolidation effected to implement a recapitalization of SAVVIS (or similar transaction) in which no Person acquires more\nthan 50% of the combined voting power of SAVVIS’ then outstanding securities;\n(D) the liquidation or dissolution of SAVVIS or the closing of a sale or disposition by SAVVIS of all or substantially all of its\nassets.\nFor purposes of this paragraph, “Person” means any individual, entity or group within the meaning of Section 3(a)(9) of the Exchange Act, as\nmodified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (aa) SAVVIS or any of its subsidiaries, (bb) a trustee or\nother fiduciary holding securities under an employee benefit plan of the Company, (cc) an underwriter temporarily holding securities pursuant to an\noffering of such securities, (dd) a corporation owned, directly or indirectly, by the shareholders of SAVVIS in substantially the same proportions as\ntheir ownership of SAVVIS common stock, (ee) any person or entity or group acquiring securities of SAVVIS pursuant to an issuance of securities\napproved by the Board, or (ff) any of the following entities or their affiliates: Welsh, Carson, Anderson & Stowe VIII L.P. and WCAS Management\nCorporation.\n(d) Definition of “Confidential Information.” For all purposes under this Agreement, “Confidential Information” shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom\nany of them plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or\nits Affiliates would assist in competition against them. Confidential Information includes without limitation such information relating to\n(i) trade secrets, the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the\nProducts, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and\nspecial needs of the customers of the Company and its Affiliates and (v) client lists and the people and organizations with whom the Company\nand its Affiliates have business relationships and the substance of those relationships. Confidential Information also includes any information\nthat the Company or any of its Affiliates have received, or may receive hereafter, belonging to customers or others with any understanding,\nexpress or implied, that the information would not be disclosed.\n(e) Definition of “Disability.” For all purposes under this Agreement, “Disability” shall mean the Executive becoming disabled during\nhis employment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is\nunable to perform substantially all\nof his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one hundred and eighty\n(180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of “Good Reason.” For all purposes under this Agreement, “Good Reason” shall mean the occurrence of any of the\nfollowing events: (i) a change in the Executive’s position that materially reduces his or her authority and level of responsibility as an officer of\nthe Company (provided that it is understood that the Chief Executive Officer of SAVVIS as a matter of management flexibility may direct a\nchange in the Executive’s reporting relationships or job title or a transfer of the Executive to a different officer position and such change or\ntransfer shall be not deemed to result in a reduction in the Executive’s authority or level of responsibility unless it is so substantial that a\nreasonable executive would feel compelled to resign under the circumstances), (ii) a material reduction in his or her level of compensation\n(including base salary and target bonus) or (iii) a relocation of his or her employment more than fifty (50) miles from the metropolitan area in\nwhich the Executive’s office is located at the time of resignation; provided, however, that in the case of the preceding clauses (i), (ii) and (iii),\nGood Reason shall only exist if effected without the Executive’s consent and is not a result of a Company-wide or department-wide policy or\npractice. Notwithstanding the foregoing, Good Reason shall only exist if (A) the Executive provides written notice to the Company within\nninety (90) days of the occurrence of the event or condition constituting Good Reason, (B) the Company is provided a period of thirty\n(30) days to cure the event or condition giving rise to Good Reason (the “Cure Period”) and fails to do so prior to the end of the Cure Period,\nand (C) the Executive terminates employment within thirty (30) days after the end of the Cure Period.\n(g) Definition of “Intellectual Property.” For all purposes under this Agreement, “Intellectual Property” shall mean inventions,\ndiscoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or\nconstituting trade secrets) conceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether\nor not during normal business hours or on or off Company premises) during the Executive’s employment and during the period of six\n(6) months immediately following termination of his employment that relate to either the Products or any prospective activity of the Company\nor any of its Affiliates or that make use of Confidential Information or any of the equipment or facilities of the Company or any of its\nAffiliates.\n(h) Definition of “Involuntary Termination.” For all purposes under this Agreement, “Involuntary Termination” shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of “Person.” For all purposes under this Agreement, “Person” shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of “Products.” For all purposes under this Agreement, “Products” shall mean all products planned, researched, developed,\ntested, manufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all\nservices provided or planned by the Company or any of its Affiliates, during the Executive’s employment.\n8. Miscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document,\nthen the provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the\nCompany with respect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company\n(other than the Executive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been\nduly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or\ndeposited with an overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or\nher at the home address which he or she most recently communicated to the Company in writing. In the case of SAVVIS or the Company,\nmailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of SAVVIS’ Senior Vice\nPresident and General Counsel.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is\nagreed to in writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either\nparty of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of\nany other condition or provision or of the same condition or provision at another time.\n(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of\nspecific duration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the\nExecutive, which rights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without\nCause and with or without notice.\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that\nany disputes arising under this Agreement are resolved in accordance with the parties’ expectations, this Agreement shall be governed by and\nconstrued under the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of\nMissouri shall be applied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and\nenforcement of this Agreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should\nMissouri law be found not to apply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall\nnot be payable, the provisions of Section 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought\nin the state courts of Missouri located in St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby\nconsents to personal jurisdiction in any such action brought in any such Missouri court, consents to service of process by the methods for\nnotice under Section 8(b) hereof made upon such party, and such party’s agent and waives any objection to venue in any such Missouri court\nor to any claim that any such Missouri court is an inconvenient forum.\n(g) Attorney’s Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party\nwith respect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its\nattorney’s fees in a reasonable amount incurred in connection with such claim.\n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties’\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to\nherein, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior\ndiscussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter\ncontained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the\nday and year first above written.\nSAVVIS, INC.\nEXECUTIVE\nBy:\nBy:\nName:\nName:\nTitle:
9b0498c69fe511f0e244bf7722af4037.pdf	effective_date jurisdiction party term	EX-10.35 26 c15909a1exv10w35.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.35\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT dated as of February 24, 2004, by and among (i) BRS-HCC\nInvestment Co., Inc. (“BRS-HCC”), Bruckmann, Rosser, Sherrill & Co. II, L.P., a Delaware limited partnership (“BRSLP”), Bruckmann,\nRosser, Sherrill & Co., Inc., a Delaware corporation (“BRSC”) (“BRS-HCC”, “BRSLP” and “BRSC” collectively “BRS”), and Bruce C.\nBruckmann, individually (“BCB”), and (ii) Heritage-Crystal Clean, LLC, an Indiana limited liability company (“Company”);\nWITNESSETH:\nWHEREAS, BRS-HCC is a Unit holder and Member of the Company, BRSLP is a lender to the Company and the holder of all of the capital\nstock of BRS-HCC, BRSC is the General Partner of BRSLP and BCB is a Managing Director of BRSC and it is anticipated that BCB will serve\nas a director of the Company; and as a result thereof, BRS and BCB have or will have access to and knowledge of all business information and\nconfidential data of the Company; and\nWHEREAS, BRSLP’s right to subscribe for and receive ownership of Units in the Company is expressly conditioned upon BRS’s and BCB’s\nentering into this Non-Competition and Non-Disclosure Agreement;\nNOW, THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. BRS and BCB acknowledge that the consideration received by BRSLP under the Purchase Agreement dated February\n__ _ , 2004 (“Purchase Agreement”) between the Company and BRSLP and BRSLP’s Subscription Agreement dated as of the same date is good\nand sufficient consideration for BRS’s and BCB’s covenants, agreements and forbearances contained in this Agreement and that the Company\nwould not have allowed BRS-HCC to subscribe for Units but for BRS’s and BCB’s entering into this Agreement.\n(2) Non-Disclosure. Neither BRS nor BCB or any of BRS’s partners, shareholders, directors, employees, agent or contractors will, at any\ntime following this date, disclose to any person, firm or corporation, any confidential information concerning the Company or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which BRS, BCB or said other parties are\nsubpoenaed to give testimony, in which event BRS and/or BCB, as the case may be, shall notify the Company promptly upon learning that BRS,\nBCB or any of said parties may be required or compelled to divulge any confidential information. However, the foregoing shall not prohibit the\ndisclosure by BRS-HCC or BRSLP to its investors; however, BRSLP shall impose upon its investors reasonable confidentiality restrictions and\nBRSLP shall be liable for any breach by its investors of such confidentiality restrictions which results in damages to the Company. For purposes\nof this Agreement, “confidential information” consists of that proprietary information subject to protection under the Uniform Trade Secrets Act\nand includes, without limitation, the Company’s customer list and\n2\nprice information for all customers and other intangible property. “Confidential information” does not include information in the public domain\nthrough no fault of BRS or BCB or reasonably discoverable without access to internal documents or information.\n(3) Non Competition. During the term of BRS-HCC’s ownership of Units and for a period of two (2) years from the date of BRS-HCC’s\ncessation of such ownership (“Restricted Period”), BRS and BCB will not, other than for the exclusive benefit of the Company, directly or\nindirectly engage in the Business (as defined below), whether as an employee, owner, member, manager, consultant, agent, partner, lender,\nservice provider or in any other capacity. For purposes of this Agreement, the term “Business” means the business of providing “parts cleaning\nservices” in the United States or Canada (the “Territory”) with annual parts cleaning revenues from such services equal to or greater than\n$1.0 million. For purposes hereof, “parts cleaning services” means the sale of services to customers that includes the sale/delivery of new solvent\nused in sink-on -drum or vat-type parts cleaning equipment, combined with the removal of used solvent. The term “solvent” encompasses\npetroleum hydrocarbons and aqueous cleaning solutions. Such services may or may not include the sale/provision/loan/lease of parts cleaning\nequipment and assistance with customer analysis and characterization, customer compliance and paperwork; but where included, fees for these\nadditional related services are included in the definition of parts cleaning revenue.\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, BRS and BCB will not directly or indirectly call on any person or business\norganization which was a customer of the Company during the BRSLP’s ownership of Units for Business within the Territory. Further, during the\nRestricted Period, BRS and BCB will not, without the consent of the Company, for BRS’s or BCB’s own account or for any third party, directly\nor indirectly solicit or endeavor to entice away, offer employment to or employ any person who was employed by the Company during the twelve\n(12) month period immediately before the cessation of such ownership.\n(5) [Omitted]\n(6) Default and Remedies. BRS and BCB acknowledge and agree that, if BRS, BCB or any of the other parties referenced herein directly or\nindirectly breaches, violates, or fails to perform fully the obligations under this Agreement (“Default”), each Default shall cause immediate and\nirreparable harm to the Company, in a manner which cannot be adequately compensated in damages. The Company, BRS and BCB agree that in\nthe event of any such Default, the Company, in addition to all other available remedies at law or in equity, may, insofar as BRS, BCB or the other\nparties referenced herein may be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by\nBRS, BCB or any of the other parties referenced herein, and to all of its costs, expenses, and reasonable attorneys’ fees incurred in any\nenforcement proceedings in which the Company prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner the\nCompany’s right to obtain any form of relief, legal or equitable, in an action brought to enforce the Company’s rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in\n3\nany respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. The Company,\nBRS and BCB agree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its\nenforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Illinois. The state and federal courts located in Kane County, Illinois, shall be the courts of exclusive jurisdiction and venue over any\nenforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. BRS hereby agrees that the provisions of this Agreement, other than the provisions of Section (3) hereof, may be assigned in\nwhole or in part by the Company to any person acquiring substantially all of the assets of the Company (whether by purchase, merger or other\nsimilar transaction), and BRS hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of\nthis Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 10(g) of the Purchase Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby both parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of\nproof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any\ndomestic federal, state or local statute or law, shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context\nrequires otherwise. The word “including” shall mean including without limitation. The parties intend that each representation, warranty, and\ncovenant contained therein shall have independent significance. If any party has breached any representation, warranty, or covenant contained\nherein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the\nrelative levels of specificity) which the party has not breached shall not detract from or mitigate the fact that the party is in breach of the first\nrepresentation, warranty, or covenant.\n(14) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or\n4\nrepresentations by or among the parties, written or oral with regard to the subject matter of this Agreement.\n[Signature Pages Follow]\n5\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement as of the date first above written.\nHeritage-Crystal Clean, LLC\nBRS-HCC Investment Co., Inc.\nBy: /s/ Joe Chalhoub\nBy: /s/ Bruce C. Bruckmann\nJoe Chalhoub\nBruce C. Bruckmann\nPresident and Chief Executive Officer\nPresident\nBruckmann, Rosser, Sherrill & Co., Inc.\nBy: /s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nTitle:\nBruckmann, Rosser, Sherrill & Co II, L.P.\nBy: Bruckmann, Rosser,\nSherrill & Co., Inc., its\nGeneral Partner\nBy: /s/ Bruce C. Bruckmann\n/s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nBruce C. Bruckmann\nManaging Director\nIndividually	EX-10.35 26 c15909alexv10w35.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.35\nNON-COMPETITION AND NON-DISCIL. OSURE AGREEMENT\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT dated as of February 24, 2004, by and among (i) BRS-HCC\nInvestment Co., Inc. (“BRS-HCC”), Bruckmann, Rosser, Sherrill & Co. II, L.P., a Delaware limited partnership (“BRSLP”), Bruckmann,\nRosser, Sherrill & Co., Inc., a Delaware corporation (“BRSC”) (“BRS-HCC”, “BRSLP” and “BRSC” collectively “BRS”), and Bruce C.\nBruckmann, individually (“BCB”), and (ii) Heritage-Crystal Clean, LL.C, an Indiana limited liability company (“Company”);\nWITNESSETH:\nWHEREAS, BRS-HCC is a Unit holder and Member of the Company, BRSLP is a lender to the Company and the holder of all of the capital\nstock of BRS-HCC, BRSC is the General Partner of BRSLP and BCB is a Managing Director of BRSC and it is anticipated that BCB will serve\nas a director of the Company; and as a result thereof, BRS and BCB have or will have access to and knowledge of all business information and\nconfidential data of the Company; and\nWHEREAS, BRSLP’s right to subscribe for and receive ownership of Units in the Company is expressly conditioned upon BRS’s and BCB’s\nentering into this Non-Competition and Non-Disclosure Agreement;\nNOW, THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. BRS and BCB acknowledge that the consideration received by BRSLP under the Purchase Agreement dated February\n___, 2004 (“Purchase Agreement”) between the Company and BRSLP and BRSLP’s Subscription Agreement dated as of the same date is good\nand sufficient consideration for BRS’s and BCB’s covenants, agreements and forbearances contained in this Agreement and that the Company\nwould not have allowed BRS-HCC to subscribe for Units but for BRS’s and BCB’s entering into this Agreement.\n \n(2) Non-Disclosure. Neither BRS nor BCB or any of BRS’s partners, shareholders, directors, employees, agent or contractors will, at any\ntime following this date, disclose to any person, firm or corporation, any confidential information concerning the Company or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which BRS, BCB or said other parties are\nsubpoenaed to give testimony, in which event BRS and/or BCB, as the case may be, shall notify the Company promptly upon learning that BRS,\nBCB or any of said parties may be required or compelled to divulge any confidential information. However, the foregoing shall not prohibit the\ndisclosure by BRS-HCC or BRSLP to its investors; however, BRSLP shall impose upon its investors reasonable confidentiality restrictions and\nBRSLP shall be liable for any breach by its investors of such confidentiality restrictions which results in damages to the Company. For purposes\nof this Agreement, “confidential information” consists of that proprietary information subject to protection under the Uniform Trade Secrets Act\nand includes, without limitation, the Company’s customer list and\nprice information for all customers and other intangible property. “Confidential information” does not include information in the public domain\nthrough no fault of BRS or BCB or reasonably discoverable without access to internal documents or information.\n(3) Non Competition. During the term of BRS-HCC’s ownership of Units and for a period of two (2) years from the date of BRS-HCC’s\ncessation of such ownership (“Restricted Period”), BRS and BCB will not, other than for the exclusive benefit of the Company, directly or\nindirectly engage in the Business (as defined below), whether as an employee, owner, member, manager, consultant, agent, partner, lender,\nservice provider or in any other capacity. For purposes of this Agreement, the term “Business” means the business of providing “parts cleaning\nservices” in the United States or Canada (the “Territory”) with annual parts cleaning revenues from such services equal to or greater than\n$1.0 million. For purposes hereof, “parts cleaning services” means the sale of services to customers that includes the sale/delivery of new solvent\nused in sink-on-drum or vat-type parts cleaning equipment, combined with the removal of used solvent. The term “solvent” encompasses\npetroleum hydrocarbons and aqueous cleaning solutions. Such services may or may not include the sale/provision/loan/lease of parts cleaning\nequipment and assistance with customer analysis and characterization, customer compliance and paperwork; but where included, fees for these\nadditional related services are included in the definition of parts cleaning revenue.\n \n \n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, BRS and BCB will not directly or indirectly call on any person or business\norganization which was a customer of the Company during the BRSLP’s ownership of Units for Business within the Territory. Further, during the\nRestricted Period, BRS and BCB will not, without the consent of the Company, for BRS’s or BCB’s own account or for any third party, directly\nor indirectly solicit or endeavor to entice away, offer employment to or employ any person who was employed by the Company during the twelve\n(12) month period immediately before the cessation of such ownership.\n(5) [Omitted]\n(6) Default and Remedies. BRS and BCB acknowledge and agree that, if BRS, BCB or any of the other parties referenced herein directly or\nindirectly breaches, violates, or fails to perform fully the obligations under this Agreement (“Default”), each Default shall cause immediate and\nirreparable harm to the Company, in a manner which cannot be adequately compensated in damages. The Company, BRS and BCB agree that in\nthe event of any such Default, the Company, in addition to all other available remedies at law or in equity, may, insofar as BRS, BCB or the other\nparties referenced herein may be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by\nBRS, BCB or any of the other parties referenced herein, and to all of its costs, expenses, and reasonable attorneys’ fees incurred in any\nenforcement proceedings in which the Company prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner the\nCompany’s right to obtain any form of relief, legal or equitable, in an action brought to enforce the Company’s rights.\n \n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in\nany respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. The Company,\nBRS and BCB agree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its\nenforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing I.aw; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Illinois. The state and federal courts located in Kane County, Illinois, shall be the courts of exclusive jurisdiction and venue over any\nenforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. BRS hereby agrees that the provisions of this Agreement, other than the provisions of Section (3) hereof, may be assigned in\nwhole or in part by the Company to any person acquiring substantially all of the assets of the Company (whether by purchase, merger or other\nsimilar transaction), and BRS hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of\nthis Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 10(g) of the Purchase Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby both parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of\nproof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any\ndomestic federal, state or local statute or law, shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context\nrequires otherwise. The word “including” shall mean including without limitation. The parties intend that each representation, warranty, and\ncovenant contained therein shall have independent significance. If any party has breached any representation, warranty, or covenant contained\nherein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the\nrelative levels of specificity) which the party has not breached shall not detract from or mitigate the fact that the party is in breach of the first\nrepresentation, warranty, or covenant.\n(14) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or\nrepresentations by or among the parties, written or oral with regard to the subject matter of this Agreement.\n[Signature Pages Follow]\nIN WITNESS WHEREOQF, the parties have executed this Non-Competition and Non-Disclosure Agreement as of the date first above written. Heritage-Crystal Clean, LL.C\nBy: /s/ Joe Chalhoub\nJoe Chalhoub\nPresident and Chief Executive Officer\nBruckmann, Rosser, Sherrill & Co., Inc.\nBy: /s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nTitle:\nBruckmann, Rosser, Sherrill & Co II, L.P.\nBy: Bruckmann, Rosser,\nSherrill & Co., Inc., its\nGeneral Partner\nBy: /s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nManaging Director\nBRS-HCC Investment Co., Inc.\nBy: /s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nPresident\n/s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nIndividually	EX-10.35 26 c15909alexv10w35.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.35\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT dated as of February 24, 2004, by and among (i) BRS-HCC\nInvestment Co., Inc. ("BRS-HCC"), Bruckmann, Rosser, Sherrill & Co. II, L.P., a Delaware limited partnership ("BRSLP"), Bruckmann,\nRosser, Sherrill & Co., Inc., a Delaware corporation ("BRSC") ("BRS-HCC", "BRSLP" and "BRSC" collectively "BRS"), and Bruce C.\nBruckmann, individually ("BCB"), and (ii) Heritage-Crystal Clean, LLC, an Indiana limited liability company ("Company.");\nWITNESSETH:\nWHEREAS, BRS-HCC is a Unit holder and Member of the Company, BRSLP is a lender to the Company and the holder of all of the capital\nstock of BRS-HCC, BRSC is the General Partner of BRSLP and BCB is a Managing Director of BRSC and it is anticipated that BCB will serve\nas a director of the Company; and as a result thereof, BRS and BCB have or will have access to and knowledge of all business information and\nconfidential data of the Company; and\nWHEREAS, BRSLP's right to subscribe for and receive ownership of Units in the Company is expressly conditioned upon BRS's and BCB's\nentering into this Non-Competition and Non-Disclosure Agreement;\nNOW, THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. BRS and BCB acknowledge that the consideration received by BRSLP under the Purchase Agreement dated February\n2004 ("Purchase Agreement") between the Company and BRSLP and BRSLP's Subscription Agreement dated as of the same date is good\nand sufficient consideration for BRS's and BCB's covenants, agreements and forbearances contained in this Agreement and that the Company\nwould not have allowed BRS-HCC to subscribe for Units but for BRS's and BCB's entering into this Agreement.\n(2) Non-Disclosure. Neither BRS nor BCB or any of BRS's partners, shareholders, directors, employees, agent or contractors will, at any\ntime following this date, disclose to any person, firm or corporation, any confidential information concerning the Company or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which BRS, BCB or said other parties are\nsubpoenaed to give testimony, in which event BRS and/or BCB, as the case may be, shall notify the Company promptly upon learning that BRS,\nBCB or any of said parties may be required or compelled to divulge any confidential information. However, the foregoing shall not prohibit the\ndisclosure by BRS-HCC or BRSLP to its investors; however, BRSLP shall impose upon its investors reasonable confidentiality restrictions and\nBRSLP shall be liable for any breach by its investors of such confidentiality restrictions which results in damages to the Company. For purposes\nof this Agreement, "confidential information" consists of that proprietary information subject to protection under the Uniform Trade Secrets Act\nand includes, without limitation, the Company's customer list and\n2\nprice information for all customers and other intangible property. "Confidential information" does not include information in the public domain\nthrough no fault of BRS or BCB or reasonably discoverable without access to internal documents or information.\n(3) Non Competition. During the term of BRS-HCC's ownership of Units and for a period of two (2) years from the date of BRS-HCC's\ncessation of such ownership ("Restricted Period"), BRS and BCB will not, other than for the exclusive benefit of the Company, directly\nor\nindirectly engage in the Business (as defined below), whether as an employee, owner, member, manager, consultant, agent, partner, lender,\nservice provider or in any other capacity. For purposes of this Agreement, the term "Business" means the business of providing "parts cleaning\nservices" in the United States or Canada (the "Territory.") with annual parts cleaning revenues from such services equal to or greater than\n$1.0 million. For purposes hereof, "parts cleaning services" means the sale of services to customers that includes the sale/delivery of new solvent\nused in sink-on-drum or vat-type parts cleaning equipment, combined with the removal of used solvent. The term "solvent" encompasses\npetroleum hydrocarbons and aqueous cleaning solutions. Such services may or may not include the sale/provision/loan/lease of parts cleaning\nequipment and assistance with customer analysis and characterization, customer compliance and paperwork; but where included, fees for these\nadditional related services are included in the definition of parts cleaning revenue.\n(4) Non-Solicitation;. Non-Piracy. During the Restricted Period, BRS and BCB will not directly or indirectly call on any person or business\norganization which was a customer of the Company during the BRSLP's ownership of Units for Business within the Territory. Further, during the\nRestricted Period, BRS and BCB will not, without the consent of the Company, for BRS's or BCB's own account or for any third party, directly\nor indirectly solicit or endeavor to entice away, offer employment to or employ any person who was employed by the Company during the twelve\n(12) month period immediately before the cessation of such ownership.\n(5) [Omitted]\n(6) Default and Remedies. BRS and BCB acknowledge and agree that, if BRS, BCB or any of the other parties referenced herein directly\nor\nindirectly breaches, violates, or fails to perform fully the obligations under this Agreement ("Default"), each Default shall cause immediate and\nirreparable harm to the Company, in a manner which cannot be adequately compensated in damages. The Company, BRS and BCB agree that in\nthe event of any such Default, the Company, in addition to all other available remedies at law or in equity, may, insofar as BRS, BCB\nor\nthe\nother\nparties referenced herein may be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by\nBRS, BCB or any of the other parties referenced herein, and to all of its costs, expenses, and reasonable attorneys' fees incurred in any\nenforcement proceedings in which the Company prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner the\nCompany's right to obtain any form of relief, legal or equitable, in an action brought to enforce the Company's rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in\n3\nany respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. The Company,\nBRS and BCB agree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its\nenforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall\na\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9)\nGoverning Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Illinois. The state and federal courts located in Kane County, Illinois, shall be the courts of exclusive jurisdiction and venue over any\nenforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. BRS hereby agrees that the provisions of this Agreement, other than the provisions of Section (3) hereof, may be assigned in\nwhole or in part by the Company to any person acquiring substantially all of the assets of the Company (whether by purchase, merger or other\nsimilar transaction), and BRS hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of\nthis Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 10(g) of the Purchase Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby both parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden\nof\nproof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any\ndomestic\nfederal,\nstate\nor local statute or law, shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the\ncontext\nrequires otherwise. The word "including" shall mean including without limitation. The parties intend that each representation, warranty, and\ncovenant contained therein shall have independent significance. If any party has breached any representation, warranty, or covenant contained\nherein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the\nrelative levels of specificity) which the party has not breached shall not detract from or mitigate the fact that the party is in breach of the first\nrepresentation, warranty, or covenant.\n(14) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or\n4\nrepresentations by or among the parties, written or oral with regard to the subject matter of this Agreement.\n[Signature Pages Follow]\n5\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement as of the date first above written.\nHeritage-Crystal Clean, LLC\nBRS-HCC Investment Co., Inc.\nBy:\n/s/ Joe Chalhoub\nBy: /s/ Bruce C. Bruckmann\nJoe Chalhoub\nBruce C. Bruckmann\nPresident and Chief Executive Officer\nPresident\nBruckmann, Rosser, Sherrill & Co., Inc.\nBy:\n/s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nTitle:\nBruckmann, Rosser, Sherrill & Co II, L.P.\nBy:\nBruckmann, Rosser,\nSherrill & Co., Inc., its\nGeneral Partner\nBy:\n/s/ Bruce C. Bruckmann\n/s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nBruce C. Bruckmann\nManaging Director\nIndividually	EX-10.35 26 c15909a1exv10w35.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.35\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT dated as of February 24, 2004, by and among (i) BRS-HCC\nInvestment Co., Inc. (“BRS-HCC”), Bruckmann, Rosser, Sherrill & Co. II, L.P., a Delaware limited partnership (“BRSLP”), Bruckmann,\nRosser, Sherrill & Co., Inc., a Delaware corporation (“BRSC”) (“BRS-HCC”, “BRSLP” and “BRSC” collectively “BRS”), and Bruce C.\nBruckmann, individually (“BCB”), and (ii) Heritage-Crystal Clean, LLC, an Indiana limited liability company (“Company”);\nWITNESSETH:\nWHEREAS, BRS-HCC is a Unit holder and Member of the Company, BRSLP is a lender to the Company and the holder of all of the capital\nstock of BRS-HCC, BRSC is the General Partner of BRSLP and BCB is a Managing Director of BRSC and it is anticipated that BCB will serve\nas a director of the Company; and as a result thereof, BRS and BCB have or will have access to and knowledge of all business information and\nconfidential data of the Company; and\nWHEREAS, BRSLP’s right to subscribe for and receive ownership of Units in the Company is expressly conditioned upon BRS’s and BCB’s\nentering into this Non-Competition and Non-Disclosure Agreement;\nNOW, THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. BRS and BCB acknowledge that the consideration received by BRSLP under the Purchase Agreement dated February\n__ _ , 2004 (“Purchase Agreement”) between the Company and BRSLP and BRSLP’s Subscription Agreement dated as of the same date is good\nand sufficient consideration for BRS’s and BCB’s covenants, agreements and forbearances contained in this Agreement and that the Company\nwould not have allowed BRS-HCC to subscribe for Units but for BRS’s and BCB’s entering into this Agreement.\n(2) Non-Disclosure. Neither BRS nor BCB or any of BRS’s partners, shareholders, directors, employees, agent or contractors will, at any\ntime following this date, disclose to any person, firm or corporation, any confidential information concerning the Company or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which BRS, BCB or said other parties are\nsubpoenaed to give testimony, in which event BRS and/or BCB, as the case may be, shall notify the Company promptly upon learning that BRS,\nBCB or any of said parties may be required or compelled to divulge any confidential information. However, the foregoing shall not prohibit the\ndisclosure by BRS-HCC or BRSLP to its investors; however, BRSLP shall impose upon its investors reasonable confidentiality restrictions and\nBRSLP shall be liable for any breach by its investors of such confidentiality restrictions which results in damages to the Company. For purposes\nof this Agreement, “confidential information” consists of that proprietary information subject to protection under the Uniform Trade Secrets Act\nand includes, without limitation, the Company’s customer list and\n2\nprice information for all customers and other intangible property. “Confidential information” does not include information in the public domain\nthrough no fault of BRS or BCB or reasonably discoverable without access to internal documents or information.\n(3) Non Competition. During the term of BRS-HCC’s ownership of Units and for a period of two (2) years from the date of BRS-HCC’s\ncessation of such ownership (“Restricted Period”), BRS and BCB will not, other than for the exclusive benefit of the Company, directly or\nindirectly engage in the Business (as defined below), whether as an employee, owner, member, manager, consultant, agent, partner, lender,\nservice provider or in any other capacity. For purposes of this Agreement, the term “Business” means the business of providing “parts cleaning\nservices” in the United States or Canada (the “Territory”) with annual parts cleaning revenues from such services equal to or greater than\n$1.0 million. For purposes hereof, “parts cleaning services” means the sale of services to customers that includes the sale/delivery of new solvent\nused in sink-on -drum or vat-type parts cleaning equipment, combined with the removal of used solvent. The term “solvent” encompasses\npetroleum hydrocarbons and aqueous cleaning solutions. Such services may or may not include the sale/provision/loan/lease of parts cleaning\nequipment and assistance with customer analysis and characterization, customer compliance and paperwork; but where included, fees for these\nadditional related services are included in the definition of parts cleaning revenue.\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, BRS and BCB will not directly or indirectly call on any person or business\norganization which was a customer of the Company during the BRSLP’s ownership of Units for Business within the Territory. Further, during the\nRestricted Period, BRS and BCB will not, without the consent of the Company, for BRS’s or BCB’s own account or for any third party, directly\nor indirectly solicit or endeavor to entice away, offer employment to or employ any person who was employed by the Company during the twelve\n(12) month period immediately before the cessation of such ownership.\n(5) [Omitted]\n(6) Default and Remedies. BRS and BCB acknowledge and agree that, if BRS, BCB or any of the other parties referenced herein directly or\nindirectly breaches, violates, or fails to perform fully the obligations under this Agreement (“Default”), each Default shall cause immediate and\nirreparable harm to the Company, in a manner which cannot be adequately compensated in damages. The Company, BRS and BCB agree that in\nthe event of any such Default, the Company, in addition to all other available remedies at law or in equity, may, insofar as BRS, BCB or the other\nparties referenced herein may be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by\nBRS, BCB or any of the other parties referenced herein, and to all of its costs, expenses, and reasonable attorneys’ fees incurred in any\nenforcement proceedings in which the Company prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner the\nCompany’s right to obtain any form of relief, legal or equitable, in an action brought to enforce the Company’s rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in\n3\nany respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. The Company,\nBRS and BCB agree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its\nenforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Illinois. The state and federal courts located in Kane County, Illinois, shall be the courts of exclusive jurisdiction and venue over any\nenforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. BRS hereby agrees that the provisions of this Agreement, other than the provisions of Section (3) hereof, may be assigned in\nwhole or in part by the Company to any person acquiring substantially all of the assets of the Company (whether by purchase, merger or other\nsimilar transaction), and BRS hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of\nthis Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 10(g) of the Purchase Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby both parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of\nproof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any\ndomestic federal, state or local statute or law, shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context\nrequires otherwise. The word “including” shall mean including without limitation. The parties intend that each representation, warranty, and\ncovenant contained therein shall have independent significance. If any party has breached any representation, warranty, or covenant contained\nherein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the\nrelative levels of specificity) which the party has not breached shall not detract from or mitigate the fact that the party is in breach of the first\nrepresentation, warranty, or covenant.\n(14) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or\n4\nrepresentations by or among the parties, written or oral with regard to the subject matter of this Agreement.\n[Signature Pages Follow]\n5\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement as of the date first above written.\nHeritage-Crystal Clean, LLC\nBRS-HCC Investment Co., Inc.\nBy: /s/ Joe Chalhoub\nBy: /s/ Bruce C. Bruckmann\nJoe Chalhoub\nBruce C. Bruckmann\nPresident and Chief Executive Officer\nPresident\nBruckmann, Rosser, Sherrill & Co., Inc.\nBy: /s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nTitle:\nBruckmann, Rosser, Sherrill & Co II, L.P.\nBy: Bruckmann, Rosser,\nSherrill & Co., Inc., its\nGeneral Partner\nBy: /s/ Bruce C. Bruckmann\n/s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nBruce C. Bruckmann\nManaging Director\nIndividually
9d70181e77cf74279fb6712c569da104.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 11 d344046dex99d3.htm CONFIDENTIALITY LETTER AGREEMENT\nExhibit (d)(3)\nImperial Sugar Company\n8016 Highway 90-A\nSugar Land, TX 77487\nJuly 22, 2011\nLouis Dreyfus Commodities LLC\n40 Danbury Road\nP.O. Box 810\nWilton, CT 06897\nAttention: Scott Hogan\nVice President & Treasurer\nDear Mr. Hogan:\nYou have requested certain non-public information regarding Imperial Sugar Company (the “Company” or “us”) in connection with a potential\nbusiness transaction with the Company (the “Transaction”). As a condition to furnishing such information to you, the Company is requiring you to\nagree to the following provisions set forth in this Confidentiality Agreement (this “Agreement”).\n1. Certain Definitions. As used in this Agreement:\n(a) “Company Affiliate” means, with respect to the Company, any other Person that directly or indirectly controls, is controlled by, or is\nunder common control with such specified Person. The term “control,” when used with respect to any specified Person, means the power to direct or\ncause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and\nthe terms “controlling” and “controlled” have correlative meanings.\n(b) “Business Relations” means the customers, suppliers, distributors, licensees, licensors, joint venture partners, clients and other\nbusiness relations of the Company and its Affiliates.\n(c) “including” means “including, without limitation.”\n(d) “Evaluation Material” means any information or data concerning the Company or any Company Affiliates, whether in oral, visual,\nwritten, electronic or other form, that is disclosed in connection with the Transaction to you, the Louis Dreyfus Commodities Affiliates or any of\nyour or their Representatives, together with all notes, memoranda, summaries, analyses, compilations and other writings relating thereto that are\nprepared by you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to the extent that it uses, contains, reflects or is\nderived from or that incorporates any such information or data. Notwithstanding the foregoing, “Evaluation Material” does not include information\nor data that you can demonstrate (i) was, prior to disclosure to you by the Company, Company Affiliates or its Representatives, already known to\nyou, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives; (ii) is or was independently developed by you, the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives without the benefit of the Evaluation Material; (iii) is or becomes available to the public, other than as a result of\ndisclosure by you, the Louis Dreyfus Commodities Affiliates or your or their Representatives in violation of this Agreement; (iv) is or becomes\navailable to you or the Louis Dreyfus Commodities Affiliates from a source other than the Company, Company Affiliates or any of its\nRepresentatives, so long as that source is not actually known to you or the Louis Dreyfus Commodities Affiliates to be subject to a confidentiality\nobligation to the Company; or (v) is provided by Company, Company Affiliates or its Representatives to you, the Louis Dreyfus Commodities\nAffiliates or your or their Representatives in connection with contracts or commercial transactions or relationships entered into in the ordinary course\nof business between the Company or any Company Affiliates, on one hand, and you or any of the Louis Dreyfus Commodities Affiliates on the other\nhand.\n(e) “LDC Affiliate” means Louis Dreyfus Commodities LLC and those Persons controlled by Louis Dreyfus Commodities LLC.\n(f) “LDC Parent Affiliate” means any of those Persons that is listed on Exhibit A.\n(g) “Louis Dreyfus Commodities Affiliate” means collectively the LDC Affiliates and the LDC Parent Affiliates.\n(h) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(i) “Representatives” means the partners, members, directors, officers, employees, managers, agents and advisors (including attorneys,\naccountants, auditors, investment bankers and consultants) and the current debt lenders of a specified Person. Representatives of the Company\ninclude Perella Weinberg Partners (“PWP”), the Company’s advisors.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. You agree that all Evaluation Material shall be: (i) used by you solely for the purpose\nof evaluating the Transaction; (ii) kept strictly confidential; and (iii) provided by you only to those of your Representatives and Louis Dreyfus\nCommodities Affiliates and their Representatives to whom disclosure is needed in order to facilitate your evaluation of the Transaction. All\nEvaluation Material (and the knowledge that discussions are taking place between the Company and you and others) shall not be used by you, the\nLouis Dreyfus Commodities Affiliates or your or their Representatives for any purpose other than evaluating the Transaction. Before providing\naccess to any Evaluation Material to any of the Louis Dreyfus Commodities Affiliates or any of your or their Representatives, you shall inform them\nof the restrictions set forth in this Agreement that are applicable to them and instruct them to comply with such provisions. Nothing herein will\n2\nprohibit or restrict the right of you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to develop, use or market\nproducts or services similar to or competitive with ours as long as you do not use Evaluation Material to do so.\n(b) Compulsory Disclosure of Evaluation Material. In the event that you, a Louis Dreyfus Commodities Affiliate or any of your or their\nRepresentatives is requested or required (by interrogatories, requests for information, subpoena or similar legal process) to disclose any Evaluation\nMaterial, if allowed by applicable law, you shall provide the Company with prompt written notice thereof so that the Company may seek an\nappropriate protective order and/or, in its sole discretion, waive your compliance with the provisions of this Agreement. If, in the absence of such a\nprotective order or waiver, you, a Louis Dreyfus Commodities Affiliate or any of your or their Representatives are nonetheless legally compelled to\ndisclose any Evaluation Material, then you or such Louis Dreyfus Commodities Affiliate or Representative may disclose such portion of the\nEvaluation Material that you are advised by counsel is legally required to be disclosed without liability under this Agreement, and you will\nreasonably cooperate with the Company in its efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment.\n3. Other Disclosure. Except for such disclosure as is necessary for you or us not to be in violation of any applicable law, regulation, order or\nlisting agreement, you, the Louis Dreyfus Commodities Affiliates and your or their Representatives, and we, Company Affiliates and our\nRepresentatives shall not: (a) make any disclosure to any other Person of (i) the fact that discussions, negotiations or investigations are taking or\nhave taken place between us concerning the Transaction, (ii) the existence or contents of this Agreement, (iii) the fact that you, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives have requested or received Evaluation Material or (iv) any of the terms, conditions or facts\nrelating to a Transaction involving you, including the status thereof; or (b) make any public statement concerning a Transaction involving you (any\ndisclosure or statement described in clauses (a) or (b) being a “Public Statement”). If either party is required to make any Public Statement for such\nparty not to be in violation of any applicable law, regulation, order or listing agreement, then if allowed by applicable law, regulation, order or listing\nagreement such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure as is practicable and\n(y) consider in good faith such party’s suggestions concerning the nature and scope of the information to be contained therein.\n4. Securities Law Restrictions. You acknowledge that: (a) the Evaluation Material may contain material non-public information concerning the\nCompany and Company Affiliates; (b) you are aware of the restrictions imposed by U.S . federal and state securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information; and (c) you will not (and you will cause the Louis\nDreyfus Commodities Affiliates and your and their Representatives to not), directly or indirectly, use, or allow any third party to use, any Evaluation\nMaterial in contravention of any U.S . federal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation\nMaterial in fact contains material non-public information concerning the Company or any Company Affiliates.\n3\n5. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is made by us,\nCompany Affiliates or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be entitled\nto rely only on those representations and warranties that may be made in a definitive written agreement to consummate the Transaction that is\nexecuted and delivered by both you and us (a “Definitive Transaction Agreement”). Neither the Company nor any Company Affiliates or\nRepresentatives shall have any liability to you or any of your Representatives on account of the use of any Evaluation Material by you, the Louis\nDreyfus Commodities Affiliates or any of your or their Representatives or any inaccuracy therein or omission therefrom unless otherwise provided\nin a Definitive Transaction Agreement.\n6. Return, Destruction or Erasure of Evaluation Material. If you decide not to proceed with the Transaction, then you shall promptly notify\nDawn Scheirer of PWP (the “Company Representative”) of that decision. Within thirty (30) days after the Company’s written request, you shall\neither return, destroy or erase all Evaluation Material in the possession or control of you, any Louis Dreyfus Commodities Affiliate or any of your or\ntheir Representatives (and, in the case of destruction or erasure, certify such destruction or erasure to us) , except to the extent and for such period\nthat you, the Louis Dreyfus Commodities Affiliates or your or their Representatives are prohibited from doing so by applicable law, rule, regulation\nor court or administrative order. The parties recognize that it may not be possible to destroy separately or completely materials that have been stored\nor transmitted electronically within the above 30-day time period and that destruction of such material shall be made to the extent practicable and in\naccordance with your, the Louis Dreyfus Commodities Affiliates’ and your Representatives’ applicable ongoing records retention procedures.\nNotwithstanding anything to the contrary herein, it is understood and agreed by Company that your, the Louis Dreyfus Commodities Affiliates’ and\nyour or their Representatives’ computer systems may automatically back-up Confidential Information disclosed to it. To the extent that such\ncomputer back-up procedures create copies of the Confidential Information, you, the Louis Dreyfus Commodities Affiliates and your or their\nRepresentatives may retain such copies in its archival or back-up computer storage for the period such party normally archive backed-up computer\nrecords, which copies shall be subject to this provision of this Agreement and shall be destroyed in accordance with the Louis Dreyfus Commodities\nAffiliates’ and your and their Representatives’ applicable ongoing records retention procedures.\n7. Communications Regarding the Transaction. You agree that all communications concerning the Transaction and your due diligence\ninvestigation (including requests for additional Evaluation Material, meetings with management, site visits and discussions or questions regarding\nthe Transaction) shall be directed solely to the Company Representative, or such other Persons as the Company Representative may designate in\nwriting. Except in the ordinary course of business (including transactions similar to, or generally consistent with, transactions previously entered into\nbetween such parties), you, the Louis Dreyfus Commodities Affiliates and your or their Representatives shall not contact or communicate with any\nof the directors, officers, employees or Business Relations of the Company or any of the Company Affiliates about the Company, Company\nAffiliates, the Transaction or any Evaluation Material, unless approved in advance and in writing by the Company Representative.\n4\n8. Restrictive Covenants.\n(a) No Solicitation of Employees. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers,\ndirectors, officers and employees shall not, directly or indirectly, solicit for employment or hire any executive employees of the Company for a\nperiod of one year after the date of this Agreement; provided that you and the Louis Dreyfus Commodities Affiliates and your and their respective\nmembers, managers, directors, officers and employees shall not be restricted from (i) making any general solicitation for employment that is not\nspecifically directed at any such employee and (ii) hiring any such employee who responds to any such general solicitation or who first contacts you,\nany Louis Dreyfus Commodities Affiliate or your or their members, managers, directors, officers or employees regarding employment without any\nsolicitation in violation of this Section 8(a).\n9. Standstill. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers and\nemployees shall not, for a period of 15 months after the date of this Agreement, directly or indirectly:\n(a) make any statement or proposal to the board of directors of the Company, to any of our Representatives or to any of our stockholders\nwith respect to, or make any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business\ncombination, merger, tender offer, exchange offer or similar transaction involving the Company, (ii) any restructuring, recapitalization, liquidation or\nsimilar transaction involving the Company, (iii) any acquisition of any of our securities or assets, or rights or options to acquire interests in any of\nour securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control or influence\nthe management, board of directors or policies of the Company, or (v) any request or proposal to waive, terminate or amend the provisions of this\nAgreement;\n(b) instigate, encourage or assist any third party (including forming a “group” with any such third party) to do any of the actions set forth\nin clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding any of the\nactions set forth in clause (a) above; or\n(d) acquire, own or sell (or seek permission to acquire, own or sell), of record or beneficially, by purchase, sale or otherwise, any\nsecurities, properties or indebtedness of the Company (except that you may purchase for investment in market transactions up to 1% of our\noutstanding common stock);\nin each case unless and until you have received the prior written invitation or approval of our board of directors to do any of the foregoing. The\nforegoing shall not apply to your Representatives or those of Louis Dreyfus Commodities Affiliates effecting or recommending transactions in\nsecurities in the ordinary course of their business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nNotwithstanding the\n5\nforegoing (i) nothing herein shall restrict you or the Louis Dreyfus Commodities Affiliates from entering into commercial transactions in the\nordinary course of business with the Company or Company Affiliates (including transactions similar to, or generally consistent with, transactions\npreviously entered into between such parties), and (ii) the foregoing restrictions shall cease to be of any effect in the event the Company publicly\nannounces that it has entered into an agreement or discussions with another Person to effect any transaction described in subpart (a) above.\n10. No Joint Bidding. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers\nand employees shall not, without the prior written consent of the Company Representative: (a) act as a joint bidder or co-bidder with any other\nPerson with respect to the Transaction or (b) enter into any discussions, negotiations, understandings or agreements (whether written or oral) with\nany other Person regarding the Transaction, other than with your Representatives.\n11. Remedies. Each party agrees that money damages would not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to specific performance and injunctive or other equitable relief without the posting of a bond or other security as\na remedy for any such breach or threatened breach, in addition to all other remedies available at law or in equity; provided that in no event will either\nparty, any Company Affiliate, any Louis Dreyfus Commodities Affiliate or any of their respective Representatives be liable for any lost profits,\nconsequential punitive or exemplary damages even if such Person has been advised of the possibility of such damages. Such injunctive or other\nequitable relief shall be available without the obligation to prove any damages underlying such breach or threatened breach. No failure or delay by\nany party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal proceeding for the\nenforcement of this Agreement, the reasonable fees and disbursements of counsel to the prevailing party shall be reimbursed by the non-prevailing\nparty to the extent of prevailing party’s success.\n12. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the Company\nis not waiving and shall not be deemed to have waived or diminished its attorney work-product protections, attorney-client privileges or similar\nprotections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or threatened litigation)\nto you.\n13. Liability for Representatives. You shall be liable for any breaches of this Agreement by any of the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives, to the extent applicable to such Persons.\n14. Term. This Agreement shall expire three years from the date of this Agreement. Any action arising out of this Agreement, including to\nenforce its provisions, must be commenced on or before the date that is five years from the date of this Agreement.\n6\n15. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) No License. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other\nproperty right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible\nproperty or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation Material.\n(c) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the Company’s assets shall be entitled to the benefits of this Agreement whether or not this Agreement is\nassigned to such Person.\n(d) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both parties.\n(e) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(f) No Obligation to Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party: (i) to consummate a Transaction, (ii) to conduct or continue discussions or negotiations concerning a Transaction or (iii) to\nenter into a Definitive Transaction Agreement. Neither party shall have any rights or obligations of any kind whatsoever with respect to a\nTransaction by virtue of this Agreement or any other written or oral expression by the parties’ respective Representatives unless and until a\nDefinitive Transaction Agreement is executed and delivered. You acknowledge and agree that the Company reserves the right (A) to conduct the\nprocess for a possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any prospective buyer\nand entering into definitive agreements without prior notice to you or any other person), (B) to change any procedures relating to such a Transaction\nat any time without notice to you or any other person, (C) to provide or not to provide Evaluation Material to, and to request the return of Evaluation\nMaterial from, you or any of your Representatives, (D) to reject any proposals made by you or any of your Representatives, (E) to reject or accept\nany potential buyer, proposal or offer, or to terminate discussions or negotiations with you or any of your Representatives at any time for any reason\nwhatsoever, in its sole discretion, and (F) to engage in discussions and negotiations, and to enter into any agreement, with any other potential\nacquirer or business partner, in each case in the Company’s sole discretion, without notice to you, at any time and for any reason or no reason. You\nshall not have any claim or cause of action against the Company or any of its Representatives in respect of the foregoing, other than pursuant to a\nDefinitive Transaction Agreement.\n7\n(g) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas\nwithout regard to the principles of conflicts of laws in any jurisdiction. Each party consents and submits to the exclusive jurisdiction of (a) the courts\nof the State of Texas located in Harris County, Texas and the United States District Court for the Southern District of Texas or (b) the United States\nDistrict Court for the Southern District of New York and any of the New York state courts sitting in New York County for the adjudication of any\naction or legal proceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to\ncommence any action or legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any\nobjection which it may now or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such\naction or legal proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY HEREBY WAIVES ITS RIGHT\nTO JURY TRIAL OF ANY DISPUTE OR ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(h) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto\n[Signature page follows]\n8\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to Louis T. Bolognini of the Company (the\nCompany’s General Counsel), at facsimile number 281-490-9881 or by PDF and to Mark Underberg of Paul, Weiss, Rifkind, Wharton & Garrison\nLLP (the Company’s counsel), at facsimile number 212-492-0368 or by PDF, whereupon this Agreement shall constitute our binding agreement with\nrespect to the matters set forth herein.\nVery truly yours,\nIMPERIAL SUGAR COMPANY\nBy: /s/ John C. Sheptor\nName: John C. Sheptor\nTitle: President & CEO\nAccepted and agreed to\nas of the date first written above:\nLOUIS DREYFUS COMMODITIES LLC\nBy: /s/ Scott Hogan\nName: Scott Hogan\nTitle: Vice President & Treasurer\nSignature Page to Confidentiality Agreement\nEXHIBIT A\nLouis Dreyfus Commodities Holdings B.V.\nLouis Dreyfus Commodities B.V.\nLouis Dreyfus Commodities Suisse SA\nLouis Dreyfus Commodities Services Suisse SA\nLDC Holding Inc.\nSignature Page to Confidentiality Agreement	EX-99.(D)(3) 11 d344046dex99d3.htm CONFIDENTIALITY LETTER AGREEMENT\nExhibit (d)(3)\nImperial Sugar Company\n8016 Highway 90-A\nSugar Land, TX 77487\nJuly 22, 2011\nLouis Dreyfus Commodities LL.C\n40 Danbury Road\nP.O. Box 810\nWilton, CT 06897\nAttention: Scott Hogan\nVice President & Treasurer\nDear Mr. Hogan:\nYou have requested certain non-public information regarding Imperial Sugar Company (the “Company” or “us”) in connection with a potential\nbusiness transaction with the Company (the “Transaction”). As a condition to furnishing such information to you, the Company is requiring you to\nagree to the following provisions set forth in this Confidentiality Agreement (this “Agreement”).\n1. Certain Definitions. As used in this Agreement:\n(a) “Company Affiliate” means, with respect to the Company, any other Person that directly or indirectly controls, is controlled by, or is\nunder common control with such specified Person. The term “control,” when used with respect to any specified Person, means the power to direct or\ncause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and\nthe terms “controlling” and “controlled” have correlative meanings.\n(b) “Business Relations” means the customers, suppliers, distributors, licensees, licensors, joint venture partners, clients and other\nbusiness relations of the Company and its Affiliates.\n(c) “including” means “including, without limitation.”\n(d) “Evaluation Material” means any information or data concerning the Company or any Company Affiliates, whether in oral, visual,\nwritten, electronic or other form, that is disclosed in connection with the Transaction to you, the Louis Dreyfus Commodities Affiliates or any of\nyour or their Representatives, together with all notes, memoranda, summaries, analyses, compilations and other writings relating thereto that are\nprepared by you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to the extent that it uses, contains, reflects or is\nderived from or that incorporates any such information or data. Notwithstanding the foregoing, “Evaluation Material” does not include information\nor data that you can demonstrate (i) was, prior to disclosure to you by the Company, Company Affiliates or its Representatives, already known to\nyou, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives; (ii) is or was independently developed by you, the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives without the benefit of the Evaluation Material; (iii) is or becomes available to the public, other than as a result of\ndisclosure by you, the Louis Dreyfus Commodities Affiliates or your or their Representatives in violation of this Agreement; (iv) is or becomes\navailable to you or the Louis Dreyfus Commodities Affiliates from a source other than the Company, Company Affiliates or any of its\nRepresentatives, so long as that source is not actually known to you or the Louis Dreyfus Commodities Affiliates to be subject to a confidentiality\nobligation to the Company; or (v) is provided by Company, Company Affiliates or its Representatives to you, the Louis Dreyfus Commodities\nAffiliates or your or their Representatives in connection with contracts or commercial transactions or relationships entered into in the ordinary course\nof business between the Company or any Company Affiliates, on one hand, and you or any of the Louis Dreyfus Commodities Affiliates on the other\nhand.\n(e) “LDC Affiliate” means Louis Dreyfus Commodities LL.C and those Persons controlled by Louis Dreyfus Commodities LLC.\n(f) “LDC Parent Affiliate” means any of those Persons that is listed on Exhibit A.\n(g) “Louis Dreyfus Commodities Affiliate” means collectively the LDC Affiliates and the LDC Parent Affiliates.\n(h) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n \n(i) “Representatives” means the partners, members, directors, officers, employees, managers, agents and advisors (including attorneys,\naccountants, auditors, investment bankers and consultants) and the current debt lenders of a specified Person. Representatives of the Company\ninclude Perella Weinberg Partners (“PWP”), the Company’s advisors.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. You agree that all Evaluation Material shall be: (i) used by you solely for the purpose\nof evaluating the Transaction; (ii) kept strictly confidential; and (iii) provided by you only to those of your Representatives and Louis Dreyfus\nCommodities Affiliates and their Representatives to whom disclosure is needed in order to facilitate your evaluation of the Transaction. All\nEvaluation Material (and the knowledge that discussions are taking place between the Company and you and others) shall not be used by you, the\nLouis Dreyfus Commodities Affiliates or your or their Representatives for any purpose other than evaluating the Transaction. Before providing\naccess to any Evaluation Material to any of the Louis Dreyfus Commodities Affiliates or any of your or their Representatives, you shall inform them\nof the restrictions set forth in this Agreement that are applicable to them and instruct them to comply with such provisions. Nothing herein will\n2\nprohibit or restrict the right of you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to develop, use or market\nproducts or services similar to or competitive with ours as long as you do not use Evaluation Material to do so.\n(b) Compulsory Disclosure of Evaluation Material. In the event that you, a Louis Dreyfus Commodities Affiliate or any of your or their\nRepresentatives is requested or required (by interrogatories, requests for information, subpoena or similar legal process) to disclose any Evaluation\nMaterial, if allowed by applicable law, you shall provide the Company with prompt written notice thereof so that the Company may seek an\nappropriate protective order and/or, in its sole discretion, waive your compliance with the provisions of this Agreement. If, in the absence of such a\nprotective order or waiver, you, a Louis Dreyfus Commodities Affiliate or any of your or their Representatives are nonetheless legally compelled to\ndisclose any Evaluation Material, then you or such Louis Dreyfus Commodities Affiliate or Representative may disclose such portion of the\nEvaluation Material that you are advised by counsel is legally required to be disclosed without liability under this Agreement, and you will\nreasonably cooperate with the Company in its efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment.\n3. Other Disclosure. Except for such disclosure as is necessary for you or us not to be in violation of any applicable law, regulation, order or\nlisting agreement, you, the Louis Dreyfus Commodities Affiliates and your or their Representatives, and we, Company Affiliates and our\nRepresentatives shall not: (a) make any disclosure to any other Person of (i) the fact that discussions, negotiations or investigations are taking or\nhave taken place between us concerning the Transaction, (ii) the existence or contents of this Agreement, (iii) the fact that you, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives have requested or received Evaluation Material or (iv) any of the terms, conditions or facts\nrelating to a Transaction involving you, including the status thereof; or (b) make any public statement concerning a Transaction involving you (any\ndisclosure or statement described in clauses (a) or (b) being a “Public Statement”). If either party is required to make any Public Statement for such\nparty not to be in violation of any applicable law, regulation, order or listing agreement, then if allowed by applicable law, regulation, order or listing\nagreement such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure as is practicable and\n(y) consider in good faith such party’s suggestions concerning the nature and scope of the information to be contained therein.\n4. Securities Law Restrictions. You acknowledge that: (a) the Evaluation Material may contain material non-public information concerning the\nCompany and Company Affiliates; (b) you are aware of the restrictions imposed by U.S. federal and state securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information; and (c) you will not (and you will cause the Louis\nDreyfus Commodities Affiliates and your and their Representatives to not), directly or indirectly, use, or allow any third party to use, any Evaluation\nMaterial in contravention of any U.S. federal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation\nMaterial in fact contains material non-public information concerning the Company or any Company Affiliates.\n3\n5. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is made by us,\nCompany Affiliates or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be entitled\nto rely only on those representations and warranties that may be made in a definitive written agreement to consummate the Transaction that is\nexecuted and delivered by both you and us (a “Definitive Transaction Agreement”). Neither the Company nor any Company Affiliates or\nRepresentatives shall have any liability to you or any of your Representatives on account of the use of any Evaluation Material by you, the Louis\nDreyfus Commodities Affiliates or any of your or their Representatives or any inaccuracy therein or omission therefrom unless otherwise provided\nin a Definitive Transaction Agreement.\n6. Return, Destruction or Erasure of Evaluation Material. If you decide not to proceed with the Transaction, then you shall promptly notify\nDawn Scheirer of PWP (the “Company Representative”) of that decision. Within thirty (30) days after the Company’s written request, you shall\neither return, destroy or erase all Evaluation Material in the possession or control of you, any Louis Dreyfus Commodities Affiliate or any of your or\ntheir Representatives (and, in the case of destruction or erasure, certify such destruction or erasure to us) , except to the extent and for such period\nthat you, the Louis Dreyfus Commodities Affiliates or your or their Representatives are prohibited from doing so by applicable law, rule, regulation\nor court or administrative order. The parties recognize that it may not be possible to destroy separately or completely materials that have been stored\nor transmitted electronically within the above 30-day time period and that destruction of such material shall be made to the extent practicable and in\naccordance with your, the Louis Dreyfus Commodities Affiliates’ and your Representatives’ applicable ongoing records retention procedures.\nNotwithstanding anything to the contrary herein, it is understood and agreed by Company that your, the Louis Dreyfus Commodities Affiliates” and\nyour or their Representatives’ computer systems may automatically back-up Confidential Information disclosed to it. To the extent that such\ncomputer back-up procedures create copies of the Confidential Information, you, the Louis Dreyfus Commodities Affiliates and your or their\nRepresentatives may retain such copies in its archival or back-up computer storage for the period such party normally archive backed-up computer\nrecords, which copies shall be subject to this provision of this Agreement and shall be destroyed in accordance with the Louis Dreyfus Commodities\nAffiliates’ and your and their Representatives’ applicable ongoing records retention procedures.\n7. Communications Regarding the Transaction. You agree that all communications concerning the Transaction and your due diligence\ninvestigation (including requests for additional Evaluation Material, meetings with management, site visits and discussions or questions regarding\nthe Transaction) shall be directed solely to the Company Representative, or such other Persons as the Company Representative may designate in\nwriting. Except in the ordinary course of business (including transactions similar to, or generally consistent with, transactions previously entered into\nbetween such parties), you, the Louis Dreyfus Commodities Affiliates and your or their Representatives shall not contact or communicate with any\nof the directors, officers, employees or Business Relations of the Company or any of the Company Affiliates about the Company, Company\nAffiliates, the Transaction or any Evaluation Material, unless approved in advance and in writing by the Company Representative.\n4\n8. Restrictive Covenants.\n(a) No Solicitation of Employees. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers,\ndirectors, officers and employees shall not, directly or indirectly, solicit for employment or hire any executive employees of the Company for a\nperiod of one year after the date of this Agreement; provided that you and the Louis Dreyfus Commodities Affiliates and your and their respective\nmembers, managers, directors, officers and employees shall not be restricted from (i) making any general solicitation for employment that is not\nspecifically directed at any such employee and (ii) hiring any such employee who responds to any such general solicitation or who first contacts you,\nany Louis Dreyfus Commodities Affiliate or your or their members, managers, directors, officers or employees regarding employment without any\nsolicitation in violation of this Section 8(a).\n9. Standstill. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers and\nemployees shall not, for a period of 15 months after the date of this Agreement, directly or indirectly:\n(a) make any statement or proposal to the board of directors of the Company, to any of our Representatives or to any of our stockholders\nwith respect to, or make any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business\ncombination, merger, tender offer, exchange offer or similar transaction involving the Company, (ii) any restructuring, recapitalization, liquidation or\nsimilar transaction involving the Company, (iii) any acquisition of any of our securities or assets, or rights or options to acquire interests in any of\nour securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control or influence\nthe management, board of directors or policies of the Company, or (v) any request or proposal to waive, terminate or amend the provisions of this\nAgreement;\n(b) instigate, encourage or assist any third party (including forming a “group” with any such third party) to do any of the actions set forth\nin clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding any of the\nactions set forth in clause (a) above; or\n(d) acquire, own or sell (or seek permission to acquire, own or sell), of record or beneficially, by purchase, sale or otherwise, any\nsecurities, properties or indebtedness of the Company (except that you may purchase for investment in market transactions up to 1% of our\noutstanding common stock);\nin each case unless and until you have received the prior written invitation or approval of our board of directors to do any of the foregoing. The\nforegoing shall not apply to your Representatives or those of Louis Dreyfus Commodities Affiliates effecting or recommending transactions in\nsecurities in the ordinary course of their business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nNotwithstanding the\nforegoing (i) nothing herein shall restrict you or the Louis Dreyfus Commodities Affiliates from entering into commercial transactions in the\nordinary course of business with the Company or Company Affiliates (including transactions similar to, or generally consistent with, transactions\npreviously entered into between such parties), and (ii) the foregoing restrictions shall cease to be of any effect in the event the Company publicly\nannounces that it has entered into an agreement or discussions with another Person to effect any transaction described in subpart (a) above.\n10. No Joint Bidding. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers\nand employees shall not, without the prior written consent of the Company Representative: (a) act as a joint bidder or co-bidder with any other\nPerson with respect to the Transaction or (b) enter into any discussions, negotiations, understandings or agreements (whether written or oral) with\nany other Person regarding the Transaction, other than with your Representatives.\n11. Remedies. Each party agrees that money damages would not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to specific performance and injunctive or other equitable relief without the posting of a bond or other security as\na remedy for any such breach or threatened breach, in addition to all other remedies available at law or in equity; provided that in no event will either\nparty, any Company Affiliate, any Louis Dreyfus Commodities Affiliate or any of their respective Representatives be liable for any lost profits,\nconsequential punitive or exemplary damages even if such Person has been advised of the possibility of such damages. Such injunctive or other\nequitable relief shall be available without the obligation to prove any damages underlying such breach or threatened breach. No failure or delay by\nany party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal proceeding for the\nenforcement of this Agreement, the reasonable fees and disbursements of counsel to the prevailing party shall be reimbursed by the non-prevailing\nparty to the extent of prevailing party’s success.\n12. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the Company\nis not waiving and shall not be deemed to have waived or diminished its attorney work-product protections, attorney-client privileges or similar\nprotections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or threatened litigation)\nto you.\n13. Liability for Representatives. You shall be liable for any breaches of this Agreement by any of the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives, to the extent applicable to such Persons.\n14. Term. This Agreement shall expire three years from the date of this Agreement. Any action arising out of this Agreement, including to\nenforce its provisions, must be commenced on or before the date that is five years from the date of this Agreement.\n6\n15. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) No License. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other\nproperty right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible\nproperty or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation Material.\n(c) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the Company’s assets shall be entitled to the benefits of this Agreement whether or not this Agreement is\nassigned to such Person.\n(d) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both parties.\n(e) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(f) No Obligation to Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party: (i) to consummate a Transaction, (ii) to conduct or continue discussions or negotiations concerning a Transaction or (iii) to\nenter into a Definitive Transaction Agreement. Neither party shall have any rights or obligations of any kind whatsoever with respect to a\nTransaction by virtue of this Agreement or any other written or oral expression by the parties’ respective Representatives unless and until a\nDefinitive Transaction Agreement is executed and delivered. You acknowledge and agree that the Company reserves the right (A) to conduct the\nprocess for a possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any prospective buyer\nand entering into definitive agreements without prior notice to you or any other person), (B) to change any procedures relating to such a Transaction\nat any time without notice to you or any other person, (C) to provide or not to provide Evaluation Material to, and to request the return of Evaluation\nMaterial from, you or any of your Representatives, (D) to reject any proposals made by you or any of your Representatives, (E) to reject or accept\nany potential buyer, proposal or offer, or to terminate discussions or negotiations with you or any of your Representatives at any time for any reason\nwhatsoever, in its sole discretion, and (F) to engage in discussions and negotiations, and to enter into any agreement, with any other potential\nacquirer or business partner, in each case in the Company’s sole discretion, without notice to you, at any time and for any reason or no reason. You\nshall not have any claim or cause of action against the Company or any of its Representatives in respect of the foregoing, other than pursuant to a\nDefinitive Transaction Agreement.\n(g) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas\nwithout regard to the principles of conflicts of laws in any jurisdiction. Each party consents and submits to the exclusive jurisdiction of (a) the courts\nof the State of Texas located in Harris County, Texas and the United States District Court for the Southern District of Texas or (b) the United States\nDistrict Court for the Southern District of New York and any of the New York state courts sitting in New York County for the adjudication of any\naction or legal proceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to\ncommence any action or legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any\nobjection which it may now or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such\naction or legal proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY HEREBY WAIVES ITS RIGHT\nTO JURY TRIAL OF ANY DISPUTE OR ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(h) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto\n[Signature page follows]\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to Louis T. Bolognini of the Company (the\nCompany’s General Counsel), at facsimile number 281-490-9881 or by PDF and to Mark Underberg of Paul, Weiss, Rifkind, Wharton & Garrison\nLLP (the Company’s counsel), at facsimile number 212-492-0368 or by PDF, whereupon this Agreement shall constitute our binding agreement with\nrespect to the matters set forth herein.\nVery truly yours,\nIMPERIAL SUGAR COMPANY\nBy: /s/ John C. Sheptor\nName: John C. Sheptor\nTitle: President & CEO\nAccepted and agreed to\nas of the date first written above:\nLOUIS DREYFUS COMMODITIES LLC\nBy: /s/ Scott Hogan\nName: Scott Hogan\nTitle: Vice President & Treasurer\nSignature Page to Confidentiality Agreement\nEXHIBIT A\nLouis Dreyfus Commodities Holdings B.V.\nLouis Dreyfus Commodities B.V.\nLouis Dreyfus Commodities Suisse SA\nLouis Dreyfus Commodities Services Suisse SA\nLDC Holding Inc.\nSignature Page to Confidentiality Agreement	EX-99.(D)(3) 11 d344046dex99d3.htm CONFIDENTIALITY LETTER AGREEMENT\nExhibit (d)(3)\nImperial Sugar Company\n8016 Highway 90-A\nSugar Land, TX 77487\nJuly 22, 2011\nLouis Dreyfus Commodities LLC\n40 Danbury Road\nP.O. Box 810\nWilton, CT 06897\nAttention: Scott Hogan\nVice President & Treasurer\nDear Mr. Hogan:\nYou have requested certain non-public information regarding Imperial Sugar Company (the "Company." or "us") in connection with a potential\nbusiness transaction with the Company (the "Transaction"). As a condition to furnishing such information to you, the Company is requiring you to\nagree to the following provisions set forth in this Confidentiality Agreement (this "Agreement").\n1. Certain Definitions. As used in this Agreement:\n(a) "Company. Affiliate" means, with respect to the Company, any other Person that directly or indirectly controls, is controlled by, or\nis\nunder common control with such specified Person. The term "control," when used with respect to any specified Person, means the\npower\nto\ndirect\nor\ncause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and\nthe terms "controlling" and "controlled" have correlative meanings.\n(b) "Business Relations" means the customers, suppliers, distributors, licensees, licensors, joint venture partners, clients and other\nbusiness relations of the Company and its Affiliates.\n(c) "including" means "including, without limitation."\n(d)\n"Evaluation Material" means any information or data concerning the Company or any Company Affiliates, whether in oral, visual,\nwritten, electronic or other form, that is disclosed in connection with the Transaction to you, the Louis Dreyfus Commodities Affiliates or any of\nyour\nor their Representatives, together with all notes, memoranda, summaries, analyses, compilations and other writings relating thereto that are\nprepared by you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to the extent that it uses, contains, reflects or is\nderived from or that incorporates any such information or data. Notwithstanding the foregoing, "Evaluation Material" does not include information\nor data that you can demonstrate (i) was, prior to disclosure to you by the Company, Company Affiliates or its Representatives, already known to\nyou, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives; (ii) is or was independently developed by you, the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives without the benefit of the Evaluation Material; (iii) is or becomes available to the public, other than as a result of\ndisclosure by you, the Louis Dreyfus Commodities Affiliates or your or their Representatives in violation of this Agreement; (iv) is or becomes\navailable to you or the Louis Dreyfus Commodities Affiliates from a source other than the Company, Company Affiliates or any of its\nRepresentatives, so long as that source is not actually known to you or the Louis Dreyfus Commodities Affiliates to be subject to a confidentiality\nobligation to the Company; or (v) is provided by Company, Company Affiliates or its Representatives to you, the Louis Dreyfus Commodities\nAffiliates or your or their Representatives in connection with contracts or commercial transactions or relationships entered into in the ordinary course\nof business between the Company or any Company Affiliates, on one hand, and you or any of the Louis Dreyfus Commodities Affiliates on the other\nhand.\n(e) "LDC Affiliate" means Louis Dreyfus Commodities LLC and those Persons controlled by Louis Dreyfus Commodities LLC.\n(f) "LDC Parent Affiliate" means any of those Persons that is listed on Exhibit A.\n(g) "Louis Dreyfus Commodities Affiliate" means collectively the LDC Affiliates and the LDC Parent Affiliates.\n(h) "Person" means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(i) "Representatives" means the partners, members, directors, officers, employees, managers, agents and advisors (including attorneys,\naccountants, auditors, investment bankers and consultants) and the current debt lenders of a specified Person. Representatives of the Company\ninclude Perella Weinberg Partners ("PWP"), the Company's advisors.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. You agree that all Evaluation Material shall be: (i) used by you solely for the purpose\nof evaluating the Transaction; (ii) kept strictly confidential; and (iii) provided by you only to those of your Representatives and Louis Dreyfus\nCommodities Affiliates and their Representatives to whom disclosure is needed in order to facilitate your evaluation of the Transaction. All\nEvaluation Material (and the knowledge that discussions are taking place between the Company and you and others) shall not be used by you, the\nLouis Dreyfus Commodities Affiliates or your or their Representatives for any purpose other than evaluating the Transaction. Before providing\naccess to any Evaluation Material to any of the Louis Dreyfus Commodities Affiliates or any of your or their Representatives, you shall inform them\nof the restrictions set forth in this Agreement that are applicable to them and instruct them to comply with such provisions. Nothing herein will\n2\nprohibit or restrict the right of you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to develop, use or market\nproducts or services similar to or competitive with ours as long as you do not use Evaluation Material to do so.\n(b) Compulsory. Disclosure of Evaluation Material. In the event that you, a Louis Dreyfus Commodities Affiliate or any of your or their\nRepresentatives is requested or required (by interrogatories, requests for information, subpoena or similar legal process) to disclose any Evaluation\nMaterial, if allowed by applicable law, you shall provide the Company with prompt written notice thereof so that the Company may seek an\nappropriate protective order and/or, in its sole discretion, waive your compliance with the provisions of this Agreement. If, in the absence of such\na\nprotective order or waiver, you, a Louis Dreyfus Commodities Affiliate or any of your or their Representatives are nonetheless legally compelled to\ndisclose any Evaluation Material, then you or such Louis Dreyfus Commodities Affiliate or Representative may disclose such portion of the\nEvaluation Material that you are advised by counsel is legally required to be disclosed without liability under this Agreement, and you will\nreasonably cooperate with the Company in its efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment.\n3. Other Disclosure. Except for such disclosure as is necessary for you or us not to be in violation of any applicable law, regulation, order or\nlisting agreement, you, the Louis Dreyfus Commodities Affiliates and your or their Representatives, and we, Company Affiliates and our\nRepresentatives shall not: (a) make any disclosure to any other Person of (i) the fact that discussions, negotiations or investigations are taking or\nhave taken place between us concerning the Transaction, (ii) the existence or contents of this Agreement, (iii) the fact that you, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives have requested or received Evaluation Material or (iv) any of the terms, conditions or facts\nrelating to a Transaction involving you, including the status thereof; or (b) make any public statement concerning a Transaction involving you (any\ndisclosure or statement described in clauses (a) or (b) being a "Public Statement"). If either party is required to make any Public Statement for such\nparty not to be in violation of any applicable law, regulation, order or listing agreement, then if allowed by applicable law, regulation, order or listing\nagreement such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure as is practicable and\n(y) consider in good faith such party's suggestions concerning the nature and scope of the information to be contained therein.\n4. Securities Law Restrictions. You acknowledge that: (a) the Evaluation Material may contain material non-public information concerning the\nCompany and Company Affiliates; (b) you are aware of the restrictions imposed by U.S. federal and state securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information; and (c) you will not (and you will cause the Louis\nDreyfus Commodities Affiliates and your and their Representatives to not), directly or indirectly, use, or allow any third party to use, any Evaluation\nMaterial in contravention of any U.S. federal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation\nMaterial in fact contains material non-public information concerning the Company or any Company Affiliates.\n3\n5. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is made by us,\nCompany Affiliates or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be entitled\nto rely only on those representations and warranties that may be made in a definitive written agreement to consummate the Transaction that\nis\nexecuted and delivered by both you and us (a "Definitive Transaction Agreement"). Neither the Company nor any Company Affiliates or\nRepresentatives shall have any liability to you or any of your Representatives on account of the use of any Evaluation Material by you, the Louis\nDreyfus Commodities Affiliates or any of your or their Representatives or any inaccuracy therein or omission therefrom unless otherwise provided\nin a Definitive Transaction Agreement.\n6. Return, Destruction or Erasure of Evaluation Material. If you decide not to proceed with the Transaction, then you shall promptly notify\nDawn Scheirer of PWP (the "Company Representative") of that decision. Within thirty (30) days after the Company's written request, you shall\neither return, destroy or erase all Evaluation Material in the possession or control of you, any Louis Dreyfus Commodities Affiliate or any of your or\ntheir Representatives (and, in the case of destruction or erasure, certify such destruction or erasure to us) except to the extent and for such period\nthat you, the Louis Dreyfus Commodities Affiliates or your or their Representatives are prohibited from doing so by applicable law, rule, regulation\nor court or administrative order. The parties recognize that it may not be possible to destroy separately or completely materials that have been stored\nor transmitted electronically within the above 30-day time period and that destruction of such material shall be made to the extent practicable and\nin\naccordance with your, the Louis Dreyfus Commodities Affiliates' and your Representatives' applicable ongoing records retention procedures.\nNotwithstanding anything to the contrary herein, it is understood and agreed by Company that your, the Louis Dreyfus Commodities Affiliates' and\nyour or their Representatives' computer systems may automatically back-up Confidential Information disclosed to it. To the extent that such\ncomputer back-up procedures create copies of the Confidential Information, you, the Louis Dreyfus Commodities Affiliates and your or their\nRepresentatives may retain such copies in its archival or back-up computer storage for the period such party normally archive backed-up computer\nrecords, which copies shall be subject to this provision of this Agreement and shall be destroyed in accordance with the Louis Dreyfus Commodities\nAffiliates' and your and their Representatives' applicable ongoing records retention procedures.\n7. Communications Regarding the Transaction. You agree that all communications concerning the Transaction and your due diligence\ninvestigation (including requests for additional Evaluation Material, meetings with management, site visits and discussions or questions regarding\nthe\nTransaction) shall be directed solely to the Company Representative, or such other Persons as the Company Representative may designate in\nwriting. Except in the ordinary course of business (including transactions similar to, or generally consistent with, transactions previously entered into\nbetween such parties), you, the Louis Dreyfus Commodities Affiliates and your or their Representatives shall not contact or communicate with any\nof the directors, officers, employees or Business Relations of the Company or any of the Company Affiliates about the Company, Company\nAffiliates, the Transaction or any Evaluation Material, unless approved in advance and in writing by the Company Representative.\n4\n8. Restrictive Covenants.\n(a) No Solicitation of Employees. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers,\ndirectors, officers and employees shall not, directly or indirectly, solicit for employment or hire any executive employees of the Company for a\nperiod of one year after the date of this Agreement; provided that you and the Louis Dreyfus Commodities Affiliates and your and their respective\nmembers, managers, directors, officers and employees shall not be restricted from (i) making any general solicitation for employment that is not\nspecifically directed at any such employee and (ii) hiring any such employee who responds to any such general solicitation or who first contacts you,\nany Louis Dreyfus Commodities Affiliate or your or their members, managers, directors, officers or employees regarding employment without any\nsolicitation in violation of this Section 8(a).\n9.\nStandstill. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers and\nemployees shall not, for a period of 15 months after the date of this Agreement, directly or indirectly:\n(a) make any statement or proposal to the board of directors of the Company, to any of our Representatives or to any of our stockholders\nwith respect to, or make any public announcement, proposal or offer (including any "solicitation" of "proxies" as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business\ncombination, merger, tender offer, exchange offer or similar transaction involving the Company, (ii) any restructuring, recapitalization, liquidation\nor\nsimilar transaction involving the Company, (iii) any acquisition of any of our securities or assets, or rights or options to acquire interests in any of\nour securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control or influence\nthe management, board of directors or policies of the Company, or (v) any request or proposal to waive, terminate or amend the provisions of this\nAgreement;\n(b) instigate, encourage or assist any third party (including forming a "group" with any such third party) to do any of the actions set forth\nin clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding any of the\nactions set forth in clause (a) above; or\n(d) acquire, own or sell (or seek permission to acquire, own or sell), of record or beneficially, by purchase, sale or otherwise, any\nsecurities, properties or indebtedness of the Company (except that you may purchase for investment in market transactions up to 1% of our\noutstanding common stock);\nin each case unless and until you have received the prior written invitation or approval of our board of directors to do any of the foregoing. The\nforegoing shall not apply to your Representatives or those of Louis Dreyfus Commodities Affiliates effecting or recommending transactions in\nsecurities in the ordinary course of their business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nNotwithstanding the\n5\nforegoing (i) nothing herein shall restrict you or the Louis Dreyfus Commodities Affiliates from entering into commercial transactions in the\nordinary course of business with the Company or Company Affiliates (including transactions similar to, or generally consistent with, transactions\npreviously entered into between such parties), and (ii) the foregoing restrictions shall cease to be of any effect in the event the Company publicly\nannounces that it has entered into an agreement or discussions with another Person to effect any transaction described in subpart (a) above.\n10.\nNo\nJoint\nBidding. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers\nand employees shall not, without the prior written consent of the Company Representative: (a) act as a joint bidder or co-bidder with any other\nPerson with respect to the Transaction or (b) enter into any discussions, negotiations, understandings or agreements (whether written or oral) with\nany other Person regarding the Transaction, other than with your Representatives.\n11. Remedies. Each party agrees that money damages would not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand\nthat\neach\nparty\nshall\nbe\nentitled\nto\nspecific\nperformance\nand\ninjunctive\nor\nother\nequitable\nrelief\nwithout\nthe\nposting\nof\na\nbond\nor\nother\nsecurity\nas\na remedy for any such breach or threatened breach, in addition to all other remedies available at law or in equity; provided that in no event will either\nparty, any Company Affiliate, any Louis Dreyfus Commodities Affiliate or any of their respective Representatives be liable for any lost profits,\nconsequential punitive or exemplary damages even if such Person has been advised of the possibility of such damages. Such injunctive or other\nequitable relief shall be available without the obligation to prove any damages underlying such breach or threatened breach. No failure or delay by\nany party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal proceeding for the\nenforcement of this Agreement, the reasonable fees and disbursements of counsel to the prevailing party shall be reimbursed by the non-prevailing\nparty to the extent of prevailing party's success.\n12. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the Company\nis not waiving and shall not be deemed to have waived or diminished its attorney work-product protections, attorney-client privileges or similar\nprotections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or threatened litigation)\nto you.\n13. Liability. for Representatives. You shall be liable for any breaches of this Agreement by any of the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives, to the extent applicable to such Persons.\n14. Term. This Agreement shall expire three years from the date of this Agreement. Any action arising out of this Agreement, including to\nenforce its provisions, must be commenced on or before the date that is five years from the date of this Agreement.\n6\n15. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) No License. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other\nproperty right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible\nproperty or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation Material.\n(c)\nAssignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the Company's assets shall be entitled to the benefits of this Agreement whether or not this Agreement\nis\nassigned to such Person.\n(d) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both parties.\n(e) Severability.. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(f) No Obligation to Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party: (i) to consummate a Transaction, (ii) to conduct or continue discussions or negotiations concerning a Transaction or (iii) to\nenter into a Definitive Transaction Agreement. Neither party shall have any rights or obligations of any kind whatsoever with respect to a\nTransaction by virtue of this Agreement or any other written or oral expression by the parties' respective Representatives unless and until a\nDefinitive Transaction Agreement is executed and delivered. You acknowledge and agree that the Company reserves the right (A) to conduct the\nprocess for a possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any prospective buyer\nand entering into definitive agreements without prior notice to you or any other person), (B) to change any procedures relating to such a Transaction\nat\nany time without notice to you or any other person, (C) to provide or not to provide Evaluation Material to, and to request the return of Evaluation\nMaterial from, you or any of your Representatives, (D) to reject any proposals made by you or any of your Representatives, (E) to reject or accept\nany potential buyer, proposal or offer, or to terminate discussions or negotiations with you or any of your Representatives at any time for any reason\nwhatsoever, in its sole discretion, and (F) to engage in discussions and negotiations, and to enter into any agreement, with any other potential\nacquirer or business partner, in each case in the Company's sole discretion, without notice to you, at any time and for any reason or no reason. You\nshall not have any claim or cause of action against the Company or any of its Representatives in respect of the foregoing, other than pursuant to\na\nDefinitive Transaction Agreement.\n7\n(g) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas\nwithout regard to the principles of conflicts of laws in any jurisdiction. Each party consents and submits to the exclusive jurisdiction of (a) the courts\nof the State of Texas located in Harris County, Texas and the United States District Court for the Southern District of Texas or (b) the United States\nDistrict Court for the Southern District of New York and any of the New York state courts sitting in New York County for the adjudication of any\naction or legal proceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to\ncommence any action or legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any\nobjection which it may now or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such\naction or legal proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY HEREBY WAIVES ITS RIGHT\nTO JURY TRIAL OF ANY DISPUTE OR ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(h) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto\n[Signature page follows]\n8\nIf\nthe foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to Louis T. Bolognini of the Company (the\nCompany's General Counsel), at facsimile number 281-490-9881 or by PDF and to Mark Underberg of Paul, Weiss, Rifkind, Wharton & Garrison\nLLP (the Company's counsel), at facsimile number 212-492-0368 or by PDF, whereupon this Agreement shall constitute our binding agreement with\nrespect to the matters set forth herein.\nVery truly yours,\nIMPERIAL SUGAR COMPANY\nBy: /s/ John C. Sheptor\nName: John C. Sheptor\nTitle: President & CEO\nAccepted and agreed to\nas of the date first written above:\nLOUIS DREYFUS COMMODITIES LLC\nBy: /s/ Scott Hogan\nName: Scott Hogan\nTitle: Vice President & Treasurer\nSignature Page to Confidentiality Agreement\nEXHIBIT A\nLouis Dreyfus Commodities Holdings B.V.\nLouis Dreyfus Commodities B.V.\nLouis Dreyfus Commodities Suisse SA\nLouis Dreyfus Commodities Services Suisse SA\nLDC Holding Inc\nSignature Page to Confidentiality Agreement	EX-99.(D)(3) 11 d344046dex99d3.htm CONFIDENTIALITY LETTER AGREEMENT\nExhibit (d)(3)\nImperial Sugar Company\n8016 Highway 90-A\nSugar Land, TX 77487\nJuly 22, 2011\nLouis Dreyfus Commodities LLC\n40 Danbury Road\nP.O. Box 810\nWilton, CT 06897\nAttention: Scott Hogan\nVice President & Treasurer\nDear Mr. Hogan:\nYou have requested certain non-public information regarding Imperial Sugar Company (the “Company” or “us”) in connection with a potential\nbusiness transaction with the Company (the “Transaction”). As a condition to furnishing such information to you, the Company is requiring you to\nagree to the following provisions set forth in this Confidentiality Agreement (this “Agreement”).\n1. Certain Definitions. As used in this Agreement:\n(a) “Company Affiliate” means, with respect to the Company, any other Person that directly or indirectly controls, is controlled by, or is\nunder common control with such specified Person. The term “control,” when used with respect to any specified Person, means the power to direct or\ncause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and\nthe terms “controlling” and “controlled” have correlative meanings.\n(b) “Business Relations” means the customers, suppliers, distributors, licensees, licensors, joint venture partners, clients and other\nbusiness relations of the Company and its Affiliates.\n(c) “including” means “including, without limitation.”\n(d) “Evaluation Material” means any information or data concerning the Company or any Company Affiliates, whether in oral, visual,\nwritten, electronic or other form, that is disclosed in connection with the Transaction to you, the Louis Dreyfus Commodities Affiliates or any of\nyour or their Representatives, together with all notes, memoranda, summaries, analyses, compilations and other writings relating thereto that are\nprepared by you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to the extent that it uses, contains, reflects or is\nderived from or that incorporates any such information or data. Notwithstanding the foregoing, “Evaluation Material” does not include information\nor data that you can demonstrate (i) was, prior to disclosure to you by the Company, Company Affiliates or its Representatives, already known to\nyou, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives; (ii) is or was independently developed by you, the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives without the benefit of the Evaluation Material; (iii) is or becomes available to the public, other than as a result of\ndisclosure by you, the Louis Dreyfus Commodities Affiliates or your or their Representatives in violation of this Agreement; (iv) is or becomes\navailable to you or the Louis Dreyfus Commodities Affiliates from a source other than the Company, Company Affiliates or any of its\nRepresentatives, so long as that source is not actually known to you or the Louis Dreyfus Commodities Affiliates to be subject to a confidentiality\nobligation to the Company; or (v) is provided by Company, Company Affiliates or its Representatives to you, the Louis Dreyfus Commodities\nAffiliates or your or their Representatives in connection with contracts or commercial transactions or relationships entered into in the ordinary course\nof business between the Company or any Company Affiliates, on one hand, and you or any of the Louis Dreyfus Commodities Affiliates on the other\nhand.\n(e) “LDC Affiliate” means Louis Dreyfus Commodities LLC and those Persons controlled by Louis Dreyfus Commodities LLC.\n(f) “LDC Parent Affiliate” means any of those Persons that is listed on Exhibit A.\n(g) “Louis Dreyfus Commodities Affiliate” means collectively the LDC Affiliates and the LDC Parent Affiliates.\n(h) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(i) “Representatives” means the partners, members, directors, officers, employees, managers, agents and advisors (including attorneys,\naccountants, auditors, investment bankers and consultants) and the current debt lenders of a specified Person. Representatives of the Company\ninclude Perella Weinberg Partners (“PWP”), the Company’s advisors.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. You agree that all Evaluation Material shall be: (i) used by you solely for the purpose\nof evaluating the Transaction; (ii) kept strictly confidential; and (iii) provided by you only to those of your Representatives and Louis Dreyfus\nCommodities Affiliates and their Representatives to whom disclosure is needed in order to facilitate your evaluation of the Transaction. All\nEvaluation Material (and the knowledge that discussions are taking place between the Company and you and others) shall not be used by you, the\nLouis Dreyfus Commodities Affiliates or your or their Representatives for any purpose other than evaluating the Transaction. Before providing\naccess to any Evaluation Material to any of the Louis Dreyfus Commodities Affiliates or any of your or their Representatives, you shall inform them\nof the restrictions set forth in this Agreement that are applicable to them and instruct them to comply with such provisions. Nothing herein will\n2\nprohibit or restrict the right of you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to develop, use or market\nproducts or services similar to or competitive with ours as long as you do not use Evaluation Material to do so.\n(b) Compulsory Disclosure of Evaluation Material. In the event that you, a Louis Dreyfus Commodities Affiliate or any of your or their\nRepresentatives is requested or required (by interrogatories, requests for information, subpoena or similar legal process) to disclose any Evaluation\nMaterial, if allowed by applicable law, you shall provide the Company with prompt written notice thereof so that the Company may seek an\nappropriate protective order and/or, in its sole discretion, waive your compliance with the provisions of this Agreement. If, in the absence of such a\nprotective order or waiver, you, a Louis Dreyfus Commodities Affiliate or any of your or their Representatives are nonetheless legally compelled to\ndisclose any Evaluation Material, then you or such Louis Dreyfus Commodities Affiliate or Representative may disclose such portion of the\nEvaluation Material that you are advised by counsel is legally required to be disclosed without liability under this Agreement, and you will\nreasonably cooperate with the Company in its efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment.\n3. Other Disclosure. Except for such disclosure as is necessary for you or us not to be in violation of any applicable law, regulation, order or\nlisting agreement, you, the Louis Dreyfus Commodities Affiliates and your or their Representatives, and we, Company Affiliates and our\nRepresentatives shall not: (a) make any disclosure to any other Person of (i) the fact that discussions, negotiations or investigations are taking or\nhave taken place between us concerning the Transaction, (ii) the existence or contents of this Agreement, (iii) the fact that you, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives have requested or received Evaluation Material or (iv) any of the terms, conditions or facts\nrelating to a Transaction involving you, including the status thereof; or (b) make any public statement concerning a Transaction involving you (any\ndisclosure or statement described in clauses (a) or (b) being a “Public Statement”). If either party is required to make any Public Statement for such\nparty not to be in violation of any applicable law, regulation, order or listing agreement, then if allowed by applicable law, regulation, order or listing\nagreement such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure as is practicable and\n(y) consider in good faith such party’s suggestions concerning the nature and scope of the information to be contained therein.\n4. Securities Law Restrictions. You acknowledge that: (a) the Evaluation Material may contain material non-public information concerning the\nCompany and Company Affiliates; (b) you are aware of the restrictions imposed by U.S . federal and state securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information; and (c) you will not (and you will cause the Louis\nDreyfus Commodities Affiliates and your and their Representatives to not), directly or indirectly, use, or allow any third party to use, any Evaluation\nMaterial in contravention of any U.S . federal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation\nMaterial in fact contains material non-public information concerning the Company or any Company Affiliates.\n3\n5. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is made by us,\nCompany Affiliates or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be entitled\nto rely only on those representations and warranties that may be made in a definitive written agreement to consummate the Transaction that is\nexecuted and delivered by both you and us (a “Definitive Transaction Agreement”). Neither the Company nor any Company Affiliates or\nRepresentatives shall have any liability to you or any of your Representatives on account of the use of any Evaluation Material by you, the Louis\nDreyfus Commodities Affiliates or any of your or their Representatives or any inaccuracy therein or omission therefrom unless otherwise provided\nin a Definitive Transaction Agreement.\n6. Return, Destruction or Erasure of Evaluation Material. If you decide not to proceed with the Transaction, then you shall promptly notify\nDawn Scheirer of PWP (the “Company Representative”) of that decision. Within thirty (30) days after the Company’s written request, you shall\neither return, destroy or erase all Evaluation Material in the possession or control of you, any Louis Dreyfus Commodities Affiliate or any of your or\ntheir Representatives (and, in the case of destruction or erasure, certify such destruction or erasure to us) , except to the extent and for such period\nthat you, the Louis Dreyfus Commodities Affiliates or your or their Representatives are prohibited from doing so by applicable law, rule, regulation\nor court or administrative order. The parties recognize that it may not be possible to destroy separately or completely materials that have been stored\nor transmitted electronically within the above 30-day time period and that destruction of such material shall be made to the extent practicable and in\naccordance with your, the Louis Dreyfus Commodities Affiliates’ and your Representatives’ applicable ongoing records retention procedures.\nNotwithstanding anything to the contrary herein, it is understood and agreed by Company that your, the Louis Dreyfus Commodities Affiliates’ and\nyour or their Representatives’ computer systems may automatically back-up Confidential Information disclosed to it. To the extent that such\ncomputer back-up procedures create copies of the Confidential Information, you, the Louis Dreyfus Commodities Affiliates and your or their\nRepresentatives may retain such copies in its archival or back-up computer storage for the period such party normally archive backed-up computer\nrecords, which copies shall be subject to this provision of this Agreement and shall be destroyed in accordance with the Louis Dreyfus Commodities\nAffiliates’ and your and their Representatives’ applicable ongoing records retention procedures.\n7. Communications Regarding the Transaction. You agree that all communications concerning the Transaction and your due diligence\ninvestigation (including requests for additional Evaluation Material, meetings with management, site visits and discussions or questions regarding\nthe Transaction) shall be directed solely to the Company Representative, or such other Persons as the Company Representative may designate in\nwriting. Except in the ordinary course of business (including transactions similar to, or generally consistent with, transactions previously entered into\nbetween such parties), you, the Louis Dreyfus Commodities Affiliates and your or their Representatives shall not contact or communicate with any\nof the directors, officers, employees or Business Relations of the Company or any of the Company Affiliates about the Company, Company\nAffiliates, the Transaction or any Evaluation Material, unless approved in advance and in writing by the Company Representative.\n4\n8. Restrictive Covenants.\n(a) No Solicitation of Employees. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers,\ndirectors, officers and employees shall not, directly or indirectly, solicit for employment or hire any executive employees of the Company for a\nperiod of one year after the date of this Agreement; provided that you and the Louis Dreyfus Commodities Affiliates and your and their respective\nmembers, managers, directors, officers and employees shall not be restricted from (i) making any general solicitation for employment that is not\nspecifically directed at any such employee and (ii) hiring any such employee who responds to any such general solicitation or who first contacts you,\nany Louis Dreyfus Commodities Affiliate or your or their members, managers, directors, officers or employees regarding employment without any\nsolicitation in violation of this Section 8(a).\n9. Standstill. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers and\nemployees shall not, for a period of 15 months after the date of this Agreement, directly or indirectly:\n(a) make any statement or proposal to the board of directors of the Company, to any of our Representatives or to any of our stockholders\nwith respect to, or make any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business\ncombination, merger, tender offer, exchange offer or similar transaction involving the Company, (ii) any restructuring, recapitalization, liquidation or\nsimilar transaction involving the Company, (iii) any acquisition of any of our securities or assets, or rights or options to acquire interests in any of\nour securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control or influence\nthe management, board of directors or policies of the Company, or (v) any request or proposal to waive, terminate or amend the provisions of this\nAgreement;\n(b) instigate, encourage or assist any third party (including forming a “group” with any such third party) to do any of the actions set forth\nin clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding any of the\nactions set forth in clause (a) above; or\n(d) acquire, own or sell (or seek permission to acquire, own or sell), of record or beneficially, by purchase, sale or otherwise, any\nsecurities, properties or indebtedness of the Company (except that you may purchase for investment in market transactions up to 1% of our\noutstanding common stock);\nin each case unless and until you have received the prior written invitation or approval of our board of directors to do any of the foregoing. The\nforegoing shall not apply to your Representatives or those of Louis Dreyfus Commodities Affiliates effecting or recommending transactions in\nsecurities in the ordinary course of their business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nNotwithstanding the\n5\nforegoing (i) nothing herein shall restrict you or the Louis Dreyfus Commodities Affiliates from entering into commercial transactions in the\nordinary course of business with the Company or Company Affiliates (including transactions similar to, or generally consistent with, transactions\npreviously entered into between such parties), and (ii) the foregoing restrictions shall cease to be of any effect in the event the Company publicly\nannounces that it has entered into an agreement or discussions with another Person to effect any transaction described in subpart (a) above.\n10. No Joint Bidding. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers\nand employees shall not, without the prior written consent of the Company Representative: (a) act as a joint bidder or co-bidder with any other\nPerson with respect to the Transaction or (b) enter into any discussions, negotiations, understandings or agreements (whether written or oral) with\nany other Person regarding the Transaction, other than with your Representatives.\n11. Remedies. Each party agrees that money damages would not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to specific performance and injunctive or other equitable relief without the posting of a bond or other security as\na remedy for any such breach or threatened breach, in addition to all other remedies available at law or in equity; provided that in no event will either\nparty, any Company Affiliate, any Louis Dreyfus Commodities Affiliate or any of their respective Representatives be liable for any lost profits,\nconsequential punitive or exemplary damages even if such Person has been advised of the possibility of such damages. Such injunctive or other\nequitable relief shall be available without the obligation to prove any damages underlying such breach or threatened breach. No failure or delay by\nany party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal proceeding for the\nenforcement of this Agreement, the reasonable fees and disbursements of counsel to the prevailing party shall be reimbursed by the non-prevailing\nparty to the extent of prevailing party’s success.\n12. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the Company\nis not waiving and shall not be deemed to have waived or diminished its attorney work-product protections, attorney-client privileges or similar\nprotections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or threatened litigation)\nto you.\n13. Liability for Representatives. You shall be liable for any breaches of this Agreement by any of the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives, to the extent applicable to such Persons.\n14. Term. This Agreement shall expire three years from the date of this Agreement. Any action arising out of this Agreement, including to\nenforce its provisions, must be commenced on or before the date that is five years from the date of this Agreement.\n6\n15. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) No License. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other\nproperty right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible\nproperty or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation Material.\n(c) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the Company’s assets shall be entitled to the benefits of this Agreement whether or not this Agreement is\nassigned to such Person.\n(d) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both parties.\n(e) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(f) No Obligation to Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party: (i) to consummate a Transaction, (ii) to conduct or continue discussions or negotiations concerning a Transaction or (iii) to\nenter into a Definitive Transaction Agreement. Neither party shall have any rights or obligations of any kind whatsoever with respect to a\nTransaction by virtue of this Agreement or any other written or oral expression by the parties’ respective Representatives unless and until a\nDefinitive Transaction Agreement is executed and delivered. You acknowledge and agree that the Company reserves the right (A) to conduct the\nprocess for a possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any prospective buyer\nand entering into definitive agreements without prior notice to you or any other person), (B) to change any procedures relating to such a Transaction\nat any time without notice to you or any other person, (C) to provide or not to provide Evaluation Material to, and to request the return of Evaluation\nMaterial from, you or any of your Representatives, (D) to reject any proposals made by you or any of your Representatives, (E) to reject or accept\nany potential buyer, proposal or offer, or to terminate discussions or negotiations with you or any of your Representatives at any time for any reason\nwhatsoever, in its sole discretion, and (F) to engage in discussions and negotiations, and to enter into any agreement, with any other potential\nacquirer or business partner, in each case in the Company’s sole discretion, without notice to you, at any time and for any reason or no reason. You\nshall not have any claim or cause of action against the Company or any of its Representatives in respect of the foregoing, other than pursuant to a\nDefinitive Transaction Agreement.\n7\n(g) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas\nwithout regard to the principles of conflicts of laws in any jurisdiction. Each party consents and submits to the exclusive jurisdiction of (a) the courts\nof the State of Texas located in Harris County, Texas and the United States District Court for the Southern District of Texas or (b) the United States\nDistrict Court for the Southern District of New York and any of the New York state courts sitting in New York County for the adjudication of any\naction or legal proceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to\ncommence any action or legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any\nobjection which it may now or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such\naction or legal proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY HEREBY WAIVES ITS RIGHT\nTO JURY TRIAL OF ANY DISPUTE OR ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(h) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto\n[Signature page follows]\n8\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to Louis T. Bolognini of the Company (the\nCompany’s General Counsel), at facsimile number 281-490-9881 or by PDF and to Mark Underberg of Paul, Weiss, Rifkind, Wharton & Garrison\nLLP (the Company’s counsel), at facsimile number 212-492-0368 or by PDF, whereupon this Agreement shall constitute our binding agreement with\nrespect to the matters set forth herein.\nVery truly yours,\nIMPERIAL SUGAR COMPANY\nBy: /s/ John C. Sheptor\nName: John C. Sheptor\nTitle: President & CEO\nAccepted and agreed to\nas of the date first written above:\nLOUIS DREYFUS COMMODITIES LLC\nBy: /s/ Scott Hogan\nName: Scott Hogan\nTitle: Vice President & Treasurer\nSignature Page to Confidentiality Agreement\nEXHIBIT A\nLouis Dreyfus Commodities Holdings B.V.\nLouis Dreyfus Commodities B.V.\nLouis Dreyfus Commodities Suisse SA\nLouis Dreyfus Commodities Services Suisse SA\nLDC Holding Inc.\nSignature Page to Confidentiality Agreement
9eddc78f6cff5ce348e07fba2a374892.pdf	effective_date jurisdiction party term	EX-10.28 4 dex1028.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit 10.28\nMUTUAL CONFIDENTIALITY AGREEMENT\nAgreement between VITAMIN SHOPPE INDUSTURIES INC., a New York corporation having offices at 2101 91st\nStreet, North\nBergen, New Jersey 07047 (“VSI”), and RENAISSANCE BRANDS LTD. having offices at 223 Wall Street, Box 318, Huntington, NY 11743 (the\n“Company”), effective as of November , 2005.\nWHEREAS, for the purpose as stated in Section 2 below, VSI and the Company (collectively referred to as the “Parties” and\nindividually referred to as a “Party”) have determined to establish terms governing the use and protection of Confidential Information (as defined in\nSection 1 below) that one Party (“Owner”) may disclose to the other Party (“Recipient”).\nNOW, THEREFORE, intending to be legally bound hereby, the Parties agree as follows:\n1. “Confidential Information” means information that relates to the purpose stated in Section 2 below or that, although not related to\nsuch purpose, is nevertheless disclosed as a result of the Parties’ discussions in that regard, and that should reasonably have been understood by the\nRecipient, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and\nconfidential to the Owner, an Affiliate of the Owner or to a third party. Confidential Information may be disclosed in written or other tangible form\n(including on magnetic media) or by oral, visual or other means. The term “Affiliate” means any person or entity directly or indirectly controlling,\ncontrolled by, or under common control with a Party.\n2. A Recipient of Confidential Information may use the Confidential Information only for the purpose of [a possible business\nrelationship or transaction]\nand only during the period of time stated in the first sentence of Section 10.\n3. Recipient shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own\nconfidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose\nConfidential Information received hereunder to (i) its Affiliates who agree, in advance, in writing, to be bound by this Agreement, and (ii) to its\nemployees and independent contractors, and its Affiliates’ employees and independent contractors, who have a need to know, for the purpose of this\nAgreement, and who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written\nagreement. Confidential Information shall not otherwise be disclosed to any third party without the prior written consent of the Owner.\n4. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that:\n(a) Was publicly known at the time of Owner’s communication thereof to Recipient;\n(b) Becomes publicly known through no fault of Recipient subsequent to the time of Owner’s communication thereof to Recipient;\n(c) Was in Recipient’s possession free of any obligation of confidence at the time of Owner’s communication thereof to Recipient;\n(d) Is developed by Recipient independently of and without reference to any of Owner’s Confidential Information or other information that\nOwner disclosed in confidence to any third party;\n(e) Is rightfully obtained by Recipient from third parties authorized to make such disclosure without restriction; or\n(f) Is identified in writing by Owner as no longer proprietary or confidential.\n5. In the event Recipient is required by law, regulation or court order to disclose any of Owner’s Confidential Information, Recipient will\npromptly notify Owner in writing prior to making any such disclosure in order to facilitate Owner seeking a protective order or other appropriate\nremedy from the proper authority. Recipient agrees to cooperate with Owner in seeking such order or other remedy. Recipient further agrees that if\nOwner is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only\nthat portion of the Confidential Information, which is legally required and will exercise all reasonable efforts to obtain reliable assurances that\nconfidential treatment will be accorded the Confidential Information.\n6. All Confidential Information disclosed under this Agreement (including information in computer software or held in electronic storage\nmedia) shall be and remain the property of Owner. All such information in tangible form shall be returned to Owner promptly upon written request\nor the termination or expiration of this Agreement, and shall not thereafter be retained in any form by Recipient, its Affiliates, or any employees or\nindependent contractors of Recipient or its Affiliates.\n7. If a Party generates an internal work product containing the other’s Confidential Information, all tangible forms of that work product\nshall be handled in the same manner, and shall be fully governed by, the terms of this Agreement, as the original version of such Confidential\nInformation. The term “internal work product” includes any hard copy, printout, electronic transfer or other transfer of all or portions of Confidential\nInformation into any medium or discernable form.\n-1-\n8. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement.\nNeither Party is obligated under this Agreement to purchase from or provide to the other Party any service or product.\n9. Owner shall not have any liability or responsibility for errors or omissions in, or any decisions made by Recipient in reliance on, any\nConfidential Information disclosed under this Agreement.\n10. This Agreement shall become effective as of the date first written above and shall automatically expire two (2) years after the later of\n(i) the execution hereof; provided, however, that prior to such expiration, either Party may terminate this Agreement at any time by written notice to\nthe other; and (ii) the expiration of any contract or agreement between the parties for the provision of services and/or products. Notwithstanding such\nexpiration or termination, all of Recipient’s nondisclosure obligations pursuant to this Agreement shall survive with respect to any Confidential\nInformation received prior to such expiration or termination.\n11. Except upon mutual written agreement, or as may be required by law, neither Party shall in any way or in any form disclose the\nexistence or terms of this Agreement, the discussions that gave rise to this Agreement or the fact that there have been, or will be, discussions or\nnegotiations covered by this Agreement.\n12. The Parties acknowledge that Confidential Information is unique and valuable, and that disclosure in breach of this Agreement will\nresult in irreparable injury to Owner for which monetary damages alone would not be an adequate remedy. Therefore, the Parties agree that in the\nevent of a breach or threatened breach of confidentiality, the Owner shall be entitled to specific performance and injunctive or other equitable relief\nas a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu\nof any appropriate relief in the way of monetary damages.\n13. Neither Party shall assign any of its rights or obligations hereunder, except to an Affiliate or successor in interest, without the prior,\nwritten consent of the other Party, which consent shall not be unreasonably withheld.\n14. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. This Agreement: (a) is the complete agreement of the Parties concerning the subject matter hereof and supersedes any prior such\nagreements with respect to further disclosures concerning such subject matter; (b) may not be amended or in any manner modified except by a\nwritten instrument signed by authorized representatives of both Parties; and (c) shall be governed and construed in accordance with the laws of New\nJersey without regard to its choice of law provisions. The parties hereby agree that any dispute arising from the provisions of this or any other\nagreement between the parties may be litigated in the courts of the State of New Jersey or of the United States District Court for the District of New\nJersey and the parties accordingly hereby consent to submit to the jurisdiction of such courts and expressly waive any objections or defenses based\nupon lack of personal jurisdiction or venue. Such reimbursement shall include all such expenses incurred prior to and at any such trial or proceeding\nand at all levels of appeal and post judgment proceedings.\n16. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the\nunenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\nIN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its duly authorized representative.\nVITAMIN SHOPPE INDUSTRIES INC.\nPARTY: RENAISSANCE BRANDS LTD.\nBy:\n/s/ Thomas Tolworthy\nBy:\n/s/ Douglas B. Fox\nPrint Name: Thomas Tolworthy\nPrint Name: Douglas B. Fox\nTitle\nChief Executive Officer\nTitle\nChief Executive Officer\nDate:\nNovember 2005\nDate:\nNovember 2005\n-2-	EX-10.28 4 dex1028.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit 10.28\nMUTUAL CONFIDENTIALITY AGREEMENT\nAgreement between VITAMIN SHOPPE INDUSTURIES INC., a New York corporation having offices at 2101 91% Street, North\nBergen, New Jersey 07047 (“VSI”), and RENAISSANCE BRANDS LTD. having offices at 223 Wall Street, Box 318, Huntington, NY 11743 (the\n“Company”), effective as of November __, 2005.\nWHEREAS, for the purpose as stated in Section 2 below, VSI and the Company (collectively referred to as the “Parties” and\nindividually referred to as a “Party”) have determined to establish terms governing the use and protection of Confidential Information (as defined in\nSection 1 below) that one Party (“Owner”) may disclose to the other Party (“Recipient”).\nNOW, THEREFORE, intending to be legally bound hereby, the Parties agree as follows:\n1. “Confidential Information” means information that relates to the purpose stated in Section 2 below or that, although not related to\nsuch purpose, is nevertheless disclosed as a result of the Parties” discussions in that regard, and that should reasonably have been understood by the\nRecipient, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and\nconfidential to the Owner, an Affiliate of the Owner or to a third party. Confidential Information may be disclosed in written or other tangible form\n(including on magnetic media) or by oral, visual or other means. The term “Affiliate” means any person or entity directly or indirectly controlling,\ncontrolled by, or under common control with a Party.\n2. A Recipient of Confidential Information may use the Confidential Information only for the purpose of [a possible business\nrelationship or transaction] and only during the period of time stated in the first sentence of Section 10.\n3. Recipient shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own\nconfidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose\nConfidential Information received hereunder to (i) its Affiliates who agree, in advance, in writing, to be bound by this Agreement, and (ii) to its\nemployees and independent contractors, and its Affiliates’ employees and independent contractors, who have a need to know, for the purpose of this\nAgreement, and who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written\nagreement. Confidential Information shall not otherwise be disclosed to any third party without the prior written consent of the Owner.\n4. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that:\n(a) Was publicly known at the time of Owner’s communication thereof to Recipient;\n(b) Becomes publicly known through no fault of Recipient subsequent to the time of Owner’s communication thereof to Recipient;\n(c) Was in Recipient’s possession free of any obligation of confidence at the time of Owner’s communication thereof to Recipient;\n(d) Is developed by Recipient independently of and without reference to any of Owner’s Confidential Information or other information that\nOwner disclosed in confidence to any third party;\n(e) Is rightfully obtained by Recipient from third parties authorized to make such disclosure without restriction; or\n(f) Is identified in writing by Owner as no longer proprietary or confidential.\n5. In the event Recipient is required by law, regulation or court order to disclose any of Owner’s Confidential Information, Recipient will\npromptly notify Owner in writing prior to making any such disclosure in order to facilitate Owner seeking a protective order or other appropriate\nremedy from the proper authority. Recipient agrees to cooperate with Owner in seeking such order or other remedy. Recipient further agrees that if\nOwner is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only\nthat portion of the Confidential Information, which is legally required and will exercise all reasonable efforts to obtain reliable assurances that\nconfidential treatment will be accorded the Confidential Information.\n6. All Confidential Information disclosed under this Agreement (including information in computer software or held in electronic storage\nmedia) shall be and remain the property of Owner. All such information in tangible form shall be returned to Owner promptly upon written request\nor the termination or expiration of this Agreement, and shall not thereafter be retained in any form by Recipient, its Affiliates, or any employees or\nindependent contractors of Recipient or its Affiliates.\n7. If a Party generates an internal work product containing the other’s Confidential Information, all tangible forms of that work product\nshall be handled in the same manner, and shall be fully governed by, the terms of this Agreement, as the original version of such Confidential\nInformation. The term “internal work product” includes any hard copy, printout, electronic transfer or other transfer of all or portions of Confidential\nInformation into any medium or discernable form.\n-1-\n8. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement.\nNeither Party is obligated under this Agreement to purchase from or provide to the other Party any service or product.\n9. Owner shall not have any liability or responsibility for errors or omissions in, or any decisions made by Recipient in reliance on, any\nConfidential Information disclosed under this Agreement.\n10. This Agreement shall become effective as of the date first written above and shall automatically expire two (2) years after the later of\n(i) the execution hereof; provided, however, that prior to such expiration, either Party may terminate this Agreement at any time by written notice to\nthe other; and (ii) the expiration of any contract or agreement between the parties for the provision of services and/or products. Notwithstanding such\nexpiration or termination, all of Recipient’s nondisclosure obligations pursuant to this Agreement shall survive with respect to any Confidential\nInformation received prior to such expiration or termination.\n11. Except upon mutual written agreement, or as may be required by law, neither Party shall in any way or in any form disclose the\nexistence or terms of this Agreement, the discussions that gave rise to this Agreement or the fact that there have been, or will be, discussions or\nnegotiations covered by this Agreement.\n12. The Parties acknowledge that Confidential Information is unique and valuable, and that disclosure in breach of this Agreement will\nresult in irreparable injury to Owner for which monetary damages alone would not be an adequate remedy. Therefore, the Parties agree that in the\nevent of a breach or threatened breach of confidentiality, the Owner shall be entitled to specific performance and injunctive or other equitable relief\nas a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu\nof any appropriate relief in the way of monetary damages.\n13. Neither Party shall assign any of its rights or obligations hereunder, except to an Affiliate or successor in interest, without the prior,\nwritten consent of the other Party, which consent shall not be unreasonably withheld.\n14. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. This Agreement: (a) is the complete agreement of the Parties concerning the subject matter hereof and supersedes any prior such\nagreements with respect to further disclosures concerning such subject matter; (b) may not be amended or in any manner modified except by a\nwritten instrument signed by authorized representatives of both Parties; and (c) shall be governed and construed in accordance with the laws of New\nJersey without regard to its choice of law provisions. The parties hereby agree that any dispute arising from the provisions of this or any other\nagreement between the parties may be litigated in the courts of the State of New Jersey or of the United States District Court for the District of New\nJersey and the parties accordingly hereby consent to submit to the jurisdiction of such courts and expressly waive any objections or defenses based\nupon lack of personal jurisdiction or venue. Such reimbursement shall include all such expenses incurred prior to and at any such trial or proceeding\nand at all levels of appeal and post judgment proceedings.\n16. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the\nunenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\nIN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its duly authorized representative.\nVITAMIN SHOPPE INDUSTRIES INC. PARTY: RENAISSANCE BRANDS LTD.\nBy: /s/ Thomas Tolworthy By: /s/ Douglas B. Fox\nPrint Name: Thomas Tolworthy Print Name: Douglas B. Fox\nTitle Chief Executive Officer Title Chief Executive Officer\nDate: November 2005 Date: November 2005\n_2-	EX-10.28 4 x1028.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit 10.28\nMUTUAL CONFIDENTIALITY AGREEMENT\nAgreement between VITAMIN SHOPPE INDUSTURIES INC., a New York corporation having offices at 2101 91st Street, North\nBergen, New Jersey 07047 ("VSI"), and RENAISSANCE BRANDS LTD. having offices at 223 Wall Street, Box 318, Huntington, NY 11743 (the\n"Company"), effective as of November 2005.\nWHEREAS, for the purpose as stated in Section 2 below, VSI and the Company (collectively referred to as the "Parties" and\nindividually referred to as a "Party") have determined to establish terms governing the use and protection of Confidential Information (as defined in\nSection 1 below) that one Party ("Owner") may disclose to the other Party ("Recipient").\nNOW, THEREFORE, intending to be legally bound hereby, the Parties agree as follows:\n1. "Confidential Information" means information that relates to the purpose stated in Section 2 below or that, although not related to\nsuch purpose, is nevertheless disclosed as a result of the Parties' discussions in that regard, and that should reasonably have been understood by the\nRecipient, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and\nconfidential to the Owner, an Affiliate of the Owner or to a third party. Confidential Information may be disclosed in written or other tangible form\n(including on magnetic media) or by oral, visual or other means. The term "Affiliate" means any person or entity directly or indirectly controlling,\ncontrolled by, or under common control with a Party.\n2. A Recipient of Confidential Information may use the Confidential Information only for the purpose of apossible business\nrelationship or transaction]\nand only during the period of time stated in the first sentence of Section 10.\n3. Recipient shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own\nconfidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose\nConfidential Information received hereunder to (i) its Affiliates who agree, in advance, in writing, to be bound by this Agreement, and (ii) to its\nemployees and independent contractors, and its Affiliates' employees and independent contractors, who have a need to know, for the purpose of this\nAgreement, and who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written\nagreement. Confidential Information shall not otherwise be disclosed to any third party without the prior written consent of the Owner.\n4. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that:\n(a) Was publicly known at the time of Owner's communication thereof to Recipient;\n(b) Becomes publicly known through no fault of Recipient subsequent to the time of Owner's communication thereof to Recipient;\n(c) Was in Recipient's possession free of any obligation of confidence at the time of Owner's communication thereof to Recipient;\n(d) Is developed by Recipient independently of and without reference to any of Owner's Confidential Information or other information that\nOwner disclosed in confidence to any third party;\n(e) Is rightfully obtained by Recipient from third parties authorized to make such disclosure without restriction; or\n(f) Is identified in writing by Owner as no longer proprietary or confidential.\n5. In the event Recipient is required by law, regulation or court order to disclose any of Owner's Confidential Information, Recipient will\npromptly notify Owner in writing prior to making any such disclosure in order to facilitate Owner seeking a protective order or other appropriate\nremedy from the proper authority Recipient agrees to cooperate with Owner in seeking such order or other remedy. Recipient further agrees that if\nOwner\nis not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only\nthat portion of the Confidential Information, which is legally required and will exercise all reasonable efforts to obtain reliable assurances that\nconfidential treatment will be accorded the Confidential Information.\n6. All Confidential Information disclosed under this Agreement (including information in computer software or held in electronic storage\nmedia) shall be and remain the property of Owner. All such information in tangible form shall be returned to Owner promptly upon written request\nor the termination or expiration of this Agreement, and shall not thereafter be retained in any form by Recipient, its Affiliates, or any employees or\nindependent contractors of Recipient or its Affiliates.\n7. If a Party generates an internal work product containing the other's Confidential Information, all tangible forms of that work product\nshall be handled in the same manner, and shall be fully governed by, the terms of this Agreement, as the original version of such Confidential\nInformation. The term "internal work product" includes any hard copy, printout, electronic transfer or other transfer of all or portions of Confidential\nInformation into any medium or discernable form.\n1\n8. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement.\nNeither Party is obligated under this Agreement to purchase from or provide to the other Party any service or product.\n9. Owner shall not have any liability or responsibility for errors or omissions in, or any decisions made by Recipient in reliance on, any\nConfidential Information disclosed under this Agreement.\n10. This Agreement shall become effective as of the date first written above and shall automatically expire two (2) years after the later of\n(i) the execution hereof; provided, however, that prior to such expiration, either Party may terminate this Agreement at any time by written notice to\nthe\nother; and (ii) the expiration of any contract or agreement between the parties for the provision of services and/or products. Notwithstanding such\nexpiration or termination, all of Recipient's nondisclosure obligations pursuant to this Agreement shall survive with respect to any Confidential\nInformation received prior to such expiration or termination.\n11. Except upon mutual written agreement, or as may be required by law, neither Party shall in any way or in any form disclose the\nexistence or terms of this Agreement, the discussions that gave rise to this Agreement or the fact that there have been, or will be, discussions or\nnegotiations covered by this Agreement.\n12. The Parties acknowledge that Confidential Information is unique and valuable, and that disclosure in breach of this Agreement will\nresult\nin\nirreparable injury to Owner for which monetary damages alone would not be an adequate remedy. Therefore, the Parties agree that in the\nevent of a breach or threatened breach of confidentiality, the Owner shall be entitled to specific performance and injunctive or other equitable relief\nas a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu\nof any appropriate relief in the way of monetary damages.\n13. Neither Party shall assign any of its rights or obligations hereunder, except to an Affiliate or successor in interest, without the prior,\nwritten consent of the other Party, which consent shall not be unreasonably withheld.\n14. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. This Agreement: (a) is the complete agreement of the Parties concerning the subject matter hereof and supersedes any prior such\nagreements with respect to further disclosures concerning such subject matter; (b) may not be amended or in any manner modified except by a\nwritten instrument signed by authorized representatives of both Parties; and (c) shall be governed and construed in accordance with the laws of New\nJersey without regard to its choice of law provisions. The parties hereby agree that any dispute arising from the provisions of this or any other\nagreement between the parties may be litigated in the courts of the State of New Jersey or of the United States District Court for the District of New\nJersey and the parties accordingly hereby consent to submit to the jurisdiction of such courts and expressly waive any objections or defenses based\nupon lack of personal jurisdiction or venue. Such reimbursement shall include all such expenses incurred prior to and at any such trial or proceeding\nand at all levels of appeal and post judgment proceedings.\n16. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the\nunenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\nIN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its duly authorized representative.\nVITAMIN SHOPPE INDUSTRIES INC.\nPARTY: RENAISSANCE BRANDS LTD.\nBy:\n/s/ Thomas Tolworthy\nBy:\n/s/ Douglas B. Fox\nPrint Name: Thomas Tolworthy\nPrint Name:\nDouglas B. Fox\nTitle\nChief Executive Officer\nTitle\nChief Executive Officer\nDate:\nNovember 2005\nDate:\nNovember 2005\n2	EX-10.28 4 dex1028.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit 10.28\nMUTUAL CONFIDENTIALITY AGREEMENT\nAgreement between VITAMIN SHOPPE INDUSTURIES INC., a New York corporation having offices at 2101 91st\nStreet, North\nBergen, New Jersey 07047 (“VSI”), and RENAISSANCE BRANDS LTD. having offices at 223 Wall Street, Box 318, Huntington, NY 11743 (the\n“Company”), effective as of November , 2005.\nWHEREAS, for the purpose as stated in Section 2 below, VSI and the Company (collectively referred to as the “Parties” and\nindividually referred to as a “Party”) have determined to establish terms governing the use and protection of Confidential Information (as defined in\nSection 1 below) that one Party (“Owner”) may disclose to the other Party (“Recipient”).\nNOW, THEREFORE, intending to be legally bound hereby, the Parties agree as follows:\n1. “Confidential Information” means information that relates to the purpose stated in Section 2 below or that, although not related to\nsuch purpose, is nevertheless disclosed as a result of the Parties’ discussions in that regard, and that should reasonably have been understood by the\nRecipient, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and\nconfidential to the Owner, an Affiliate of the Owner or to a third party. Confidential Information may be disclosed in written or other tangible form\n(including on magnetic media) or by oral, visual or other means. The term “Affiliate” means any person or entity directly or indirectly controlling,\ncontrolled by, or under common control with a Party.\n2. A Recipient of Confidential Information may use the Confidential Information only for the purpose of [a possible business\nrelationship or transaction]\nand only during the period of time stated in the first sentence of Section 10.\n3. Recipient shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own\nconfidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose\nConfidential Information received hereunder to (i) its Affiliates who agree, in advance, in writing, to be bound by this Agreement, and (ii) to its\nemployees and independent contractors, and its Affiliates’ employees and independent contractors, who have a need to know, for the purpose of this\nAgreement, and who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written\nagreement. Confidential Information shall not otherwise be disclosed to any third party without the prior written consent of the Owner.\n4. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that:\n(a) Was publicly known at the time of Owner’s communication thereof to Recipient;\n(b) Becomes publicly known through no fault of Recipient subsequent to the time of Owner’s communication thereof to Recipient;\n(c) Was in Recipient’s possession free of any obligation of confidence at the time of Owner’s communication thereof to Recipient;\n(d) Is developed by Recipient independently of and without reference to any of Owner’s Confidential Information or other information that\nOwner disclosed in confidence to any third party;\n(e) Is rightfully obtained by Recipient from third parties authorized to make such disclosure without restriction; or\n(f) Is identified in writing by Owner as no longer proprietary or confidential.\n5. In the event Recipient is required by law, regulation or court order to disclose any of Owner’s Confidential Information, Recipient will\npromptly notify Owner in writing prior to making any such disclosure in order to facilitate Owner seeking a protective order or other appropriate\nremedy from the proper authority. Recipient agrees to cooperate with Owner in seeking such order or other remedy. Recipient further agrees that if\nOwner is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only\nthat portion of the Confidential Information, which is legally required and will exercise all reasonable efforts to obtain reliable assurances that\nconfidential treatment will be accorded the Confidential Information.\n6. All Confidential Information disclosed under this Agreement (including information in computer software or held in electronic storage\nmedia) shall be and remain the property of Owner. All such information in tangible form shall be returned to Owner promptly upon written request\nor the termination or expiration of this Agreement, and shall not thereafter be retained in any form by Recipient, its Affiliates, or any employees or\nindependent contractors of Recipient or its Affiliates.\n7. If a Party generates an internal work product containing the other’s Confidential Information, all tangible forms of that work product\nshall be handled in the same manner, and shall be fully governed by, the terms of this Agreement, as the original version of such Confidential\nInformation. The term “internal work product” includes any hard copy, printout, electronic transfer or other transfer of all or portions of Confidential\nInformation into any medium or discernable form.\n-1-\n8. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement.\nNeither Party is obligated under this Agreement to purchase from or provide to the other Party any service or product.\n9. Owner shall not have any liability or responsibility for errors or omissions in, or any decisions made by Recipient in reliance on, any\nConfidential Information disclosed under this Agreement.\n10. This Agreement shall become effective as of the date first written above and shall automatically expire two (2) years after the later of\n(i) the execution hereof; provided, however, that prior to such expiration, either Party may terminate this Agreement at any time by written notice to\nthe other; and (ii) the expiration of any contract or agreement between the parties for the provision of services and/or products. Notwithstanding such\nexpiration or termination, all of Recipient’s nondisclosure obligations pursuant to this Agreement shall survive with respect to any Confidential\nInformation received prior to such expiration or termination.\n11. Except upon mutual written agreement, or as may be required by law, neither Party shall in any way or in any form disclose the\nexistence or terms of this Agreement, the discussions that gave rise to this Agreement or the fact that there have been, or will be, discussions or\nnegotiations covered by this Agreement.\n12. The Parties acknowledge that Confidential Information is unique and valuable, and that disclosure in breach of this Agreement will\nresult in irreparable injury to Owner for which monetary damages alone would not be an adequate remedy. Therefore, the Parties agree that in the\nevent of a breach or threatened breach of confidentiality, the Owner shall be entitled to specific performance and injunctive or other equitable relief\nas a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu\nof any appropriate relief in the way of monetary damages.\n13. Neither Party shall assign any of its rights or obligations hereunder, except to an Affiliate or successor in interest, without the prior,\nwritten consent of the other Party, which consent shall not be unreasonably withheld.\n14. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. This Agreement: (a) is the complete agreement of the Parties concerning the subject matter hereof and supersedes any prior such\nagreements with respect to further disclosures concerning such subject matter; (b) may not be amended or in any manner modified except by a\nwritten instrument signed by authorized representatives of both Parties; and (c) shall be governed and construed in accordance with the laws of New\nJersey without regard to its choice of law provisions. The parties hereby agree that any dispute arising from the provisions of this or any other\nagreement between the parties may be litigated in the courts of the State of New Jersey or of the United States District Court for the District of New\nJersey and the parties accordingly hereby consent to submit to the jurisdiction of such courts and expressly waive any objections or defenses based\nupon lack of personal jurisdiction or venue. Such reimbursement shall include all such expenses incurred prior to and at any such trial or proceeding\nand at all levels of appeal and post judgment proceedings.\n16. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the\nunenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\nIN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its duly authorized representative.\nVITAMIN SHOPPE INDUSTRIES INC.\nPARTY: RENAISSANCE BRANDS LTD.\nBy:\n/s/ Thomas Tolworthy\nBy:\n/s/ Douglas B. Fox\nPrint Name: Thomas Tolworthy\nPrint Name: Douglas B. Fox\nTitle\nChief Executive Officer\nTitle\nChief Executive Officer\nDate:\nNovember 2005\nDate:\nNovember 2005\n-2-
9f7a97fa1d4912d6312d0a03277c24a8.pdf	effective_date jurisdiction party term	EX-99.5 6 dex995.htm CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY INFORMATION\nAGREEMENT\nExhibit 99.5\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Evercore Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the “Agreement”), is made on this 21st\nday of May, 2009,\nbetween Evercore Partners Inc. (the “Company”), and the employee signatory hereof (the “Employee”).\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, “Evercore”);\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore;\nWHEREAS, in connection with the Employee’s execution of an employment agreement with the Company dated as of the date hereof (the\n“Employment Agreement”), Employee agrees to be subject to the restrictive covenants as set forth in this Agreement, effective as of the date\nEmployee commences employment with Evercore (the “Effective Date”);\nNOW THEREFORE, for good and valuable consideration, effective as of the Effective Date, the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee’s employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee’s\nemployment with Evercore or at any time thereafter during the course of Employee’s employment with Evercore — including without limitation\ntrade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employee’s own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals — concerning the past, current or future business, activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party Employee knows\nor reasonably should have known that the third party provided it to Evercore on a confidential basis) (“Confidential Information”) without the prior\nwritten authorization of the Company’s Board of Directors or its designee; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee’s duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof; provided further, that in any event Employee shall be permitted to\ndisclose (publicly or otherwise) any Confidential Information reasonably necessary to disclose Employee’s “track record” with the Company at any\ntime after the expiration of the Restricted Period (as defined below in Section 2(a)(i)).\n(b) “Confidential Information” shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee’s breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made legitimately available to Employee by a third party (unless Employee\nknows or reasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court,\narbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to\ndisclose or make accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation,\nshall give prompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate\nwith any attempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee’s immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee’s employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee’s possession or control (including any of the foregoing stored or located in Employee’s office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee’s possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to\n-2-\nretain (and not destroy) (x) information showing Employee’s compensation or relating to reimbursement of expenses that Employee reasonably\nbelieves is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with, Evercore\naddressing Employee’s compensation or employment or the termination thereof.\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Employee agrees as follows:\n(i) Non-Competition. Subject to Section 2(b) below, during the term of Employee’s employment and during the twelve months\nimmediately following any termination of that employment (regardless of the reason for such termination) (such period, the “Restricted Period”),\nEmployee will not, directly or indirectly:\n(A) engage in any business that competes, as of the Relevant Date (as defined below), with the business of Evercore (other than\nany business engaged in solely by any portfolio company of Evercore), including, without limitation, any businesses that Evercore is actively\nconsidering conducting at the time of Employee’s termination of employment, so long as Employee knows or reasonably should have known about\nsuch plan(s) in any geographical area that is within 100 miles of any geographical area where Evercore provides its products or services as of the\nRelevant Date (a “Competitive Business”);\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business as of the date Employee enters such employment or renders such services; or\n(C) subject to the terms of Evercore’s employee investments policy applicable to Employee during the Restricted Period (which,\nwhile employed by Evercore shall mean such policy as in effect from time to time and made available to Employee and, on and after such\nemployment, such policy as in effect on the date immediately prior to the date of termination of Employee’s employment with Evercore), acquire a\nfinancial interest in, or otherwise become actively involved with, any Competitive Business which is a Competitive Business as of the date of such\nacquisition or involvement, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\n(i) investing, as a passive investor, in any publicly held company provided that Employee’s beneficial ownership of any class of such publicly held\ncompany’s securities does not exceed two percent (2%) of the outstanding securities of such class, (ii) entering the employ of any academic\ninstitution or governmental or regulatory instrumentality of any country or any domestic or foreign state, county, city or political subdivision, or\n(iii) providing services to a subsidiary or affiliate of an entity that controls a separate subsidiary or affiliate that is a Competitive Business, so long as\nthe subsidiary or affiliate for which Employee may be providing services is not itself a Competitive Business and Employee is not, as an employee\nof such subsidiary or affiliate, engaging in activities that would otherwise cause such subsidiary or affiliate to be deemed a Competitive Business.\nFor purposes of this Section 2(a), the term “Relevant Date” shall mean, during the term of Employee’s\n-3-\nemployment, any date falling during such time, and, for the period of time during the Restricted Period that falls after the date of any termination of\nEmployee’s employment with Evercore, the effective date of termination of Employee’s employment with Evercore.\n(ii) Non-Solicitation of Clients. During the Restricted Period, Employee will not, whether on Employee’s own behalf or on behalf of or\nin conjunction with any Person, directly or indirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an\ninvestment in, or any opportunity to act as a financial or restructuring advisor in connection with any transaction involving, any client, prospective\nclient, investor, portfolio company, venture capital investee, or prospective portfolio company, venture capital investee, or member of management\nof any portfolio company or venture capital investee or prospective portfolio company or venture capital investee of Evercore, in all such cases\ndetermined as of the Relevant Date (collectively, the “Clients”):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding Employee’s termination of employment;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Employee’s termination of employment; or\n(C) with whom Employee had direct or indirect responsibility during the two-year period immediately preceding Employee’s\ntermination of employment.\n(iii) Non-Interference with Business Relationships. During the Restricted Period, Employee will not interfere with, or attempt to interfere\nwith, business relationships (whether formed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client,\ncustomers, suppliers, partners, of Evercore, on the other hand, in any such case determined as of the Relevant Date.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During the term of Employee’s employment and during the twelve\nmonths immediately following the date of any termination of Employee’s employment with Evercore, Employee will not, whether on Employee’s\nown behalf or on behalf of or in conjunction with any Person, directly or indirectly (other than in the ordinary course of Employee’s employment\nwith Evercore on Evercore’s behalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee’s termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within one year prior to or after, the termination of Employee’s employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n-4-\n(b) The restrictions described in Sections 2(a)(i)-(iii) above shall not apply following any termination of Employee’s employment without\n“Cause” or for “Good Reason” (as such terms are defined in the Employment Agreement); provided, however, that the Company may elect to have\nsuch restrictions apply for up to six months following a termination of Employee’s employment without Cause or for Good Reason to the extent that\nthe Company (i) notifies Employee of such election in writing within five business days following the date of such termination of employment and\n(ii) continues to pay Employee his “Base Salary” (as defined in the Employment Agreement) and provide Employee with medical benefits on the\nsame basis as is provided to actively employed executives of Evercore for the duration of such restrictive period.\n(c) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Section 2 to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, prior to or\nduring Employee’s employment with Evercore, that are relevant to or implicated by such employment (“Prior Works”), to the extent Employee has\nretained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free, worldwide,\nassignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) therein to the extent of Employee’s rights in such Prior Work for all purposes in\nconnection with Evercore’s current and future business.\n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee’s employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources (“Company Works”),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore’s sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n-5-\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore’s expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore’s rights in the Prior Works and Company Works as set forth in this Section 3. If\nEvercore is unable for any other reason to secure Employee’s signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in Employee’s\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n(f) The provisions of Section 3 shall survive the termination of Employee’s employment for any reason.\n4. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee’s employment with Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such confidential information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges and\nagrees that Evercore’s remedies at law for a breach or threatened breach of any of the provisions of Section 1, Section 2, and Section 3 would be\ninadequate and, in recognition of this fact, Employee agrees that, in the event of any material breach of Sections 1 through 3 hereof that Employee\nfails to cure within 10 business days after receiving written notice thereof from Evercore, in addition to any remedies at law, Evercore, without\nposting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by Evercore\n(other than any vested benefits\n-6-\nunder any retirement plan, as may otherwise be required by applicable law to be provided or to the extent that Evercore has agreed not to offset or\nforfeit any payments, benefits or entitlements pursuant to any other agreement between Evercore and Employee) and, in the event of any breach or\nthreatened breach of Sections 1 through 3 hereof, seek equitable relief in the form of specific performance, temporary restraining order, temporary or\npermanent injunction or any other equitable remedy which may then be available; provided, however, that if it is subsequently determined in a final\nand binding arbitration or litigation that Employee did not materially breach any such provision, Evercore will promptly pay any payments or\nprovide any benefits, which Evercore may have ceased to pay when originally due and payable, plus an additional amount equal to interest\n(calculated based on the applicable federal rate for the month in which such final determination is made) accrued on the applicable payment or the\namount of the benefit, as applicable, beginning from the date such payment or benefit was originally due and payable through the day preceding the\ndate on which such payment or benefit is ultimately paid hereunder.\n5. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof\nand supersedes any other agreement with respect to the subject matter hereof. There are no restrictions, agreements, promises, warranties, covenants\nor undertakings between the parties with respect to the subject matter herein other than those expressly set forth herein. This Agreement may not be\naltered, modified, or amended except by written instrument signed by the parties hereto.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n-7-\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[signature pages follow]\n-8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS INC.\nBy: /s/ Robert B. Walsh\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nBy: /s/ Ralph L. Schlosstein\nRalph L. Schlosstein\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)	EX-99.5 6 dex995.htm CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY INFORMATION\nAGREEMENT\nExhibit 99.5\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Evercore Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the “Agreement”), is made on this 21% day of May, 2009,\nbetween Evercore Partners Inc. (the “Company”), and the employee signatory hereof (the “Employee”).\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, “Evercore”);\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore;\nWHEREAS, in connection with the Employee’s execution of an employment agreement with the Company dated as of the date hereof (the\n“Employment Agreement”), Employee agrees to be subject to the restrictive covenants as set forth in this Agreement, effective as of the date\nEmployee commences employment with Evercore (the “Effective Date”);\n \nNOW THEREFORE, for good and valuable consideration, effective as of the Effective Date, the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee’s employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee’s\nemployment with Evercore or at any time thereafter during the course of Employee’s employment with Evercore — including without limitation\ntrade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employee’s own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals — concerning the past, current or future business, activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party Employee knows\n \nor reasonably should have known that the third party provided it to Evercore on a confidential basis) (“Confidential Information”) without the prior\nwritten authorization of the Company’s Board of Directors or its designee; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee’s duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof; provided further, that in any event Employee shall be permitted to\ndisclose (publicly or otherwise) any Confidential Information reasonably necessary to disclose Employee’s “track record” with the Company at any\ntime after the expiration of the Restricted Period (as defined below in Section 2(a)(i)).\n(b) “Confidential Information” shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee’s breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made legitimately available to Employee by a third party (unless Employee\nknows or reasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court,\narbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to\ndisclose or make accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation,\nshall give prompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate\nwith any attempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee’s immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee’s employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee’s possession or control (including any of the foregoing stored or located in Employee’s office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee’s possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to\n-\nretain (and not destroy) (x) information showing Employee’s compensation or relating to reimbursement of expenses that Employee reasonably\nbelieves is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with, Evercore\naddressing Employee’s compensation or employment or the termination thereof.\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Employee agrees as follows:\n(i) Non-Competition. Subject to Section 2(b) below, during the term of Employee’s employment and during the twelve months\nimmediately following any termination of that employment (regardless of the reason for such termination) (such period, the “Restricted Period”),\nEmployee will not, directly or indirectly:\n \n(A) engage in any business that competes, as of the Relevant Date (as defined below), with the business of Evercore (other than\nany business engaged in solely by any portfolio company of Evercore), including, without limitation, any businesses that Evercore is actively\nconsidering conducting at the time of Employee’s termination of employment, so long as Employee knows or reasonably should have known about\nsuch plan(s) in any geographical area that is within 100 miles of any geographical area where Evercore provides its products or services as of the\nRelevant Date (a “Competitive Business”);\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business as of the date Employee enters such employment or renders such services; or\n(C) subject to the terms of Evercore’s employee investments policy applicable to Employee during the Restricted Period (which,\nwhile employed by Evercore shall mean such policy as in effect from time to time and made available to Employee and, on and after such\nemployment, such policy as in effect on the date immediately prior to the date of termination of Employee’s employment with Evercore), acquire a\nfinancial interest in, or otherwise become actively involved with, any Competitive Business which is a Competitive Business as of the date of such\nacquisition or involvement, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\n(i) investing, as a passive investor, in any publicly held company provided that Employee’s beneficial ownership of any class of such publicly held\ncompany’s securities does not exceed two percent (2%) of the outstanding securities of such class, (ii) entering the employ of any academic\ninstitution or governmental or regulatory instrumentality of any country or any domestic or foreign state, county, city or political subdivision, or\n(iii) providing services to a subsidiary or affiliate of an entity that controls a separate subsidiary or affiliate that is a Competitive Business, so long as\nthe subsidiary or affiliate for which Employee may be providing services is not itself a Competitive Business and Employee is not, as an employee\nof such subsidiary or affiliate, engaging in activities that would otherwise cause such subsidiary or affiliate to be deemed a Competitive Business.\nFor purposes of this Section 2(a), the term “Relevant Date” shall mean, during the term of Employee’s\n_3-\nemployment, any date falling during such time, and, for the period of time during the Restricted Period that falls after the date of any termination of\nEmployee’s employment with Evercore, the effective date of termination of Employee’s employment with Evercore.\n(ii) Non-Solicitation of Clients. During the Restricted Period, Employee will not, whether on Employee’s own behalf or on behalf of or\nin conjunction with any Person, directly or indirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an\ninvestment in, or any opportunity to act as a financial or restructuring advisor in connection with any transaction involving, any client, prospective\nclient, investor, portfolio company, venture capital investee, or prospective portfolio company, venture capital investee, or member of management\nof any portfolio company or venture capital investee or prospective portfolio company or venture capital investee of Evercore, in all such cases\ndetermined as of the Relevant Date (collectively, the “Clients”):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding Employee’s termination of employment;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Employee’s termination of employment; or\n(C) with whom Employee had direct or indirect responsibility during the two-year period immediately preceding Employee’s\ntermination of employment.\n(iii) Non-Interference with Business Relationships. During the Restricted Period, Employee will not interfere with, or attempt to interfere\nwith, business relationships (whether formed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client,\ncustomers, suppliers, partners, of Evercore, on the other hand, in any such case determined as of the Relevant Date.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During the term of Employee’s employment and during the twelve\nmonths immediately following the date of any termination of Employee’s employment with Evercore, Employee will not, whether on Employee’s\nown behalf or on behalf of or in conjunction with any Person, directly or indirectly (other than in the ordinary course of Employee’s employment\nwith Evercore on Evercore’s behalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee’s termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within one year prior to or after, the termination of Employee’s employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n4-\n(b) The restrictions described in Sections 2(a)(i)-(iii) above shall not apply following any termination of Employee’s employment without\n“Cause” or for “Good Reason” (as such terms are defined in the Employment Agreement); provided, however, that the Company may elect to have\nsuch restrictions apply for up to six months following a termination of Employee’s employment without Cause or for Good Reason to the extent that\nthe Company (i) notifies Employee of such election in writing within five business days following the date of such termination of employment and\n(ii) continues to pay Employee his “Base Salary” (as defined in the Employment Agreement) and provide Employee with medical benefits on the\nsame basis as is provided to actively employed executives of Evercore for the duration of such restrictive period.\n \n(c) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Section 2 to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, prior to or\nduring Employee’s employment with Evercore, that are relevant to or implicated by such employment (“Prior Works”), to the extent Employee has\nretained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free, worldwide,\nassignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) therein to the extent of Employee’s rights in such Prior Work for all purposes in\nconnection with Evercore’s current and future business.\n \n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee’s employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources (“Company Works”),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore’s sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n_5-\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore’s expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore’s rights in the Prior Works and Company Works as set forth in this Section 3. If\nEvercore is unable for any other reason to secure Employee’s signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in Employee’s\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n(f) The provisions of Section 3 shall survive the termination of Employee’s employment for any reason.\n4. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee’s employment with Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such confidential information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges and\nagrees that Evercore’s remedies at law for a breach or threatened breach of any of the provisions of Section 1, Section 2, and Section 3 would be\ninadequate and, in recognition of this fact, Employee agrees that, in the event of any material breach of Sections 1 through 3 hereof that Employee\nfails to cure within 10 business days after receiving written notice thereof from Evercore, in addition to any remedies at law, Evercore, without\nposting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by Evercore\n(other than any vested benefits\n-6-\nunder any retirement plan, as may otherwise be required by applicable law to be provided or to the extent that Evercore has agreed not to offset or\nforfeit any payments, benefits or entitlements pursuant to any other agreement between Evercore and Employee) and, in the event of any breach or\nthreatened breach of Sections 1 through 3 hereof, seek equitable relief in the form of specific performance, temporary restraining order, temporary or\npermanent injunction or any other equitable remedy which may then be available; provided, however, that if it is subsequently determined in a final\nand binding arbitration or litigation that Employee did not materially breach any such provision, Evercore will promptly pay any payments or\nprovide any benefits, which Evercore may have ceased to pay when originally due and payable, plus an additional amount equal to interest\n(calculated based on the applicable federal rate for the month in which such final determination is made) accrued on the applicable payment or the\namount of the benefit, as applicable, beginning from the date such payment or benefit was originally due and payable through the day preceding the\ndate on which such payment or benefit is ultimately paid hereunder.\n5. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof\nand supersedes any other agreement with respect to the subject matter hereof. There are no restrictions, agreements, promises, warranties, covenants\nor undertakings between the parties with respect to the subject matter herein other than those expressly set forth herein. This Agreement may not be\naltered, modified, or amended except by written instrument signed by the parties hereto.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n_7-\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[signature pages follow]\n_8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS INC.\nBy: /s/ Robert B. Walsh\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nBy: /s/ RalphL. Schlosstein\nRalph L. Schlosstein\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)	EX-99.5 6 dex995.htm CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY INFORMATION\nAGREEMENT\nExhibit 99.5\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Evercore Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the "Agreement"), is made on this 21st day of May, 2009,\nbetween Evercore Partners Inc. (the "Company."), and the employee signatory hereof (the "Employee").\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, "Evercore");\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore;\nWHEREAS, in connection with the Employee's execution of an employment agreement with the Company dated as of the date hereof (the\n"Employment Agreement"), Employee agrees to be subject to the restrictive covenants as set forth in this Agreement, effective as of the date\nEmployee commences employment with Evercore (the "Effective Date");\nNOW THEREFORE, for good and valuable consideration, effective as of the Effective Date, the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee's employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever ("Person"); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee's\nemployment with Evercore or at any time thereafter during the course of Employee's employment with Evercore - including without limitation\ntrade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employee's own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals concerning the past, current or future business, activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party Employee knows\nor reasonably should have known that the third party provided it to Evercore on a confidential basis) ("Confidentia Information") without the prior\nwritten authorization of the Company's Board of Directors or its designee; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee's duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof; provided further, that in any event Employee shall be permitted to\ndisclose (publicly or otherwise) any Confidential Information reasonably necessary to disclose Employee's "track record" with the Company at any\ntime after the expiration of the Restricted Period (as defined below in Section 2(a)(i)).\n(b) "Confidential Information" shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee's breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made legitimately available to Employee by a third party (unless Employee\nknows or reasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court,\narbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to\ndisclose or make accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation,\nshall give prompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate\nwith any attempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee's immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee's employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use\nof\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore's option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee's possession or control (including any of the foregoing stored or located in Employee's office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee's possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to\n-2-\nretain (and not destroy) (x) information showing Employee's compensation or relating to reimbursement of expenses that Employee reasonably\nbelieves is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with, Evercore\naddressing Employee's compensation or employment or the termination thereof.\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Employee agrees as follows:\n(i) Non-Competition. Subject to Section 2(b) below, during the term of Employee's employment and during the twelve months\nimmediately following any termination of that employment (regardless of the reason for such termination) (such period, the "Restricted Period"),\nEmployee will not, directly or indirectly:\n(A) engage in any business that competes, as of the Relevant Date (as defined below), with the business of Evercore (other than\nany business engaged in solely by any portfolio company of Evercore), including, without limitation, any businesses that Evercore is actively\nconsidering conducting at the time of Employee's termination of employment, so long as Employee knows or reasonably should have known about\nsuch plan(s) in any geographical area that is within 100 miles of any geographical area where Evercore provides its products or services as of the\nRelevant Date (a "Competitive Business");\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business as of the date Employee enters such employment or renders such services; or\n(C) subject to the terms of Evercore's employee investments policy applicable to Employee during the Restricted Period (which,\nwhile employed by Evercore shall mean such policy as in effect from time to time and made available to Employee and, on and after such\nemployment, such policy as in effect on the date immediately prior to the date of termination of Employee's employment with Evercore), acquire a\nfinancial\ninterest in, or otherwise become actively involved with, any Competitive Business which is a Competitive Business as of the date of such\nacquisition or involvement, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\n(i) investing, as a passive investor, in any publicly held company provided that Employee's beneficial ownership of any class of such publicly held\ncompany's securities does not exceed two percent (2%) of the outstanding securities of such class, (ii) entering the employ of any academic\ninstitution or governmental or regulatory instrumentality of any country or any domestic or foreign state, county, city or political subdivision, or\n(iii) providing services to a subsidiary or affiliate of an entity that controls a separate subsidiary or affiliate that is a Competitive Business, so long as\nthe subsidiary or affiliate for which Employee may be providing services is not itself a Competitive Business and Employee is not, as an employee\nof such subsidiary or affiliate, engaging in activities that would otherwise cause such subsidiary or affiliate to be deemed a Competitive Business.\nFor purposes of this Section 2(a), the term "Relevant Date" shall mean, during the term of Employee's\n-3-\nemployment, any date falling during such time, and, for the period of time during the Restricted Period that falls after the date of any termination of\nEmployee's employment with Evercore, the effective date of termination of Employee's employment with Evercore.\n(ii) Non-Solicitation of Clients. During the Restricted Period, Employee will not, whether on Employee's own behalf or on behalf of or\nin\nconjunction with any Person, directly or indirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an\ninvestment\nin,\nor\nany opportunity to act as a financial or restructuring advisor in connection with any transaction involving, any client, prospective\nclient, investor, portfolio company, venture capital investee, or prospective portfolio company, venture capital investee, or member of management\nof any portfolio company or venture capital investee or prospective portfolio company or venture capital investee of Evercore, in all such cases\ndetermined as of the Relevant Date (collectively, the "Clients"):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding Employee's termination of employment;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Employee's termination of employment; or\n(C) with whom Employee had direct or indirect responsibility during the two-year period immediately preceding Employee's\ntermination of employment.\n(iii) Non-Interference with Business Relationships. During the Restricted Period, Employee will not interfere with, or attempt to interfere\nwith, business relationships (whether formed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client,\ncustomers, suppliers, partners, of Evercore, on the other hand, in any such case determined as of the Relevant Date.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During the term of Employee's employment and during the twelve\nmonths immediately following the date of any termination of Employee's employment with Evercore, Employee will not, whether on Employee's\nown behalf or on behalf of or in conjunction with any Person, directly or indirectly (other than in the ordinary course of Employee's employment\nwith Evercore on Evercore's behalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee's termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within one year prior to or after, the termination of Employee's employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n-4-\n(b) The restrictions described in Sections 2(a)(i)-(iii) above shall not apply following any termination of Employee's employment without\n"Cause" or for "Good Reason" (as such terms are defined in the Employment Agreement); provided, however, that the Company may elect to have\nsuch restrictions apply for up to six months following a termination of Employee's employment without Cause or for Good Reason to the extent that\nthe Company (i) notifies Employee of such election in writing within five business days following the date of such termination of employment and\n(ii) continues to pay Employee his "Base Salary" (as defined in the Employment Agreement) and provide Employee with medical benefits on the\nsame basis as is provided to actively employed executives of Evercore for the duration of such restrictive period.\n(c) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Section 2\nto\nbe\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) ("Works"), either alone or with third parties, prior to\nor\nduring Employee's employment with Evercore, that are relevant to or implicated by such employment ("Prior Works"), to the extent\nEmployee\nhas\nretained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free, worldwide,\nassignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) therein to the extent of Employee's rights in such Prior Work for all purposes\nin\nconnection with Evercore's current and future business.\n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee's employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources ("Company. Works"),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore's sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n-5-\n(c)\nEmployee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other\nform\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property\nof\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore's expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore's rights in the Prior Works and Company Works as set forth in this Section 3.\nIf\nEvercore is unable for any other reason to secure Employee's signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee's agent and attorney in fact, to act for and in Employee's\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidentia information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n(f) The provisions of Section 3 shall survive the termination of Employee's employment for any reason.\n4. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee's employment with Evercore, Employee will be provided with access\nto\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such confidential information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges\nand\nagrees that Evercore's remedies at law for a breach or threatened breach of any of the provisions of Section 1, Section 2, and Section 3 would be\ninadequate and, in recognition of this fact, Employee agrees that, in the event of any material breach of Sections 1 through 3 hereof that Employee\nfails to cure within 10 business days after receiving written notice thereof from Evercore, in addition to any remedies at law, Evercore, without\nposting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by Evercore\n(other than any vested benefits\n-6-\nunder any retirement plan, as may otherwise be required by applicable law to be provided or to the extent that Evercore has agreed not to offset or\nforfeit any payments, benefits or entitlements pursuant to any other agreement between Evercore and Employee) and, in the event of any breach\nor\nthreatened breach of Sections 1 through 3 hereof, seek equitable relief in the form of specific performance, temporary restraining order, temporary or\npermanent injunction or any other equitable remedy which may then be available; provided, however, that if it is subsequently determined in a final\nand binding arbitration or litigation that Employee did not materially breach any such provision, Evercore will promptly pay any payments or\nprovide any benefits, which Evercore may have ceased to pay when originally due and payable, plus an additional amount equal to interest\n(calculated based on the applicable federal rate for the month in which such final determination is made) accrued on the applicable payment or the\namount of the benefit, as applicable, beginning from the date such payment or benefit was originally due and payable through the day preceding the\ndate on which such payment or benefit is ultimately paid hereunder.\n5. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof\nand supersedes any other agreement with respect to the subject matter hereof. There are no restrictions, agreements, promises, warranties, covenants\nor undertakings between the parties with respect to the subject matter herein other than those expressly set forth herein. This Agreement may not be\naltered, modified, or amended except by written instrument signed by the parties hereto.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party's rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n-7-\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n(g) Counterparts This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[signature pages follow]\n-8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS INC.\nBy: /s/ Robert B. Walsh\nDate: May 21 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)\nIN\nWITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nBy: /s/ Ralph L. Schlosstein\nRalph L. Schlosstein\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)	EX-99.5 6 dex995.htm CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY INFORMATION\nAGREEMENT\nExhibit 99.5\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Evercore Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the “Agreement”), is made on this 21st\nday of May, 2009,\nbetween Evercore Partners Inc. (the “Company”), and the employee signatory hereof (the “Employee”).\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, “Evercore”);\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore;\nWHEREAS, in connection with the Employee’s execution of an employment agreement with the Company dated as of the date hereof (the\n“Employment Agreement”), Employee agrees to be subject to the restrictive covenants as set forth in this Agreement, effective as of the date\nEmployee commences employment with Evercore (the “Effective Date”);\nNOW THEREFORE, for good and valuable consideration, effective as of the Effective Date, the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee’s employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee’s\nemployment with Evercore or at any time thereafter during the course of Employee’s employment with Evercore — including without limitation\ntrade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employee’s own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals — concerning the past, current or future business, activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party Employee knows\nor reasonably should have known that the third party provided it to Evercore on a confidential basis) (“Confidential Information”) without the prior\nwritten authorization of the Company’s Board of Directors or its designee; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee’s duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof; provided further, that in any event Employee shall be permitted to\ndisclose (publicly or otherwise) any Confidential Information reasonably necessary to disclose Employee’s “track record” with the Company at any\ntime after the expiration of the Restricted Period (as defined below in Section 2(a)(i)).\n(b) “Confidential Information” shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee’s breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made legitimately available to Employee by a third party (unless Employee\nknows or reasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court,\narbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to\ndisclose or make accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation,\nshall give prompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate\nwith any attempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee’s immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee’s employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee’s possession or control (including any of the foregoing stored or located in Employee’s office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee’s possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to\n-2-\nretain (and not destroy) (x) information showing Employee’s compensation or relating to reimbursement of expenses that Employee reasonably\nbelieves is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with, Evercore\naddressing Employee’s compensation or employment or the termination thereof.\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Employee agrees as follows:\n(i) Non-Competition. Subject to Section 2(b) below, during the term of Employee’s employment and during the twelve months\nimmediately following any termination of that employment (regardless of the reason for such termination) (such period, the “Restricted Period”),\nEmployee will not, directly or indirectly:\n(A) engage in any business that competes, as of the Relevant Date (as defined below), with the business of Evercore (other than\nany business engaged in solely by any portfolio company of Evercore), including, without limitation, any businesses that Evercore is actively\nconsidering conducting at the time of Employee’s termination of employment, so long as Employee knows or reasonably should have known about\nsuch plan(s) in any geographical area that is within 100 miles of any geographical area where Evercore provides its products or services as of the\nRelevant Date (a “Competitive Business”);\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business as of the date Employee enters such employment or renders such services; or\n(C) subject to the terms of Evercore’s employee investments policy applicable to Employee during the Restricted Period (which,\nwhile employed by Evercore shall mean such policy as in effect from time to time and made available to Employee and, on and after such\nemployment, such policy as in effect on the date immediately prior to the date of termination of Employee’s employment with Evercore), acquire a\nfinancial interest in, or otherwise become actively involved with, any Competitive Business which is a Competitive Business as of the date of such\nacquisition or involvement, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\n(i) investing, as a passive investor, in any publicly held company provided that Employee’s beneficial ownership of any class of such publicly held\ncompany’s securities does not exceed two percent (2%) of the outstanding securities of such class, (ii) entering the employ of any academic\ninstitution or governmental or regulatory instrumentality of any country or any domestic or foreign state, county, city or political subdivision, or\n(iii) providing services to a subsidiary or affiliate of an entity that controls a separate subsidiary or affiliate that is a Competitive Business, so long as\nthe subsidiary or affiliate for which Employee may be providing services is not itself a Competitive Business and Employee is not, as an employee\nof such subsidiary or affiliate, engaging in activities that would otherwise cause such subsidiary or affiliate to be deemed a Competitive Business.\nFor purposes of this Section 2(a), the term “Relevant Date” shall mean, during the term of Employee’s\n-3-\nemployment, any date falling during such time, and, for the period of time during the Restricted Period that falls after the date of any termination of\nEmployee’s employment with Evercore, the effective date of termination of Employee’s employment with Evercore.\n(ii) Non-Solicitation of Clients. During the Restricted Period, Employee will not, whether on Employee’s own behalf or on behalf of or\nin conjunction with any Person, directly or indirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an\ninvestment in, or any opportunity to act as a financial or restructuring advisor in connection with any transaction involving, any client, prospective\nclient, investor, portfolio company, venture capital investee, or prospective portfolio company, venture capital investee, or member of management\nof any portfolio company or venture capital investee or prospective portfolio company or venture capital investee of Evercore, in all such cases\ndetermined as of the Relevant Date (collectively, the “Clients”):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding Employee’s termination of employment;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Employee’s termination of employment; or\n(C) with whom Employee had direct or indirect responsibility during the two-year period immediately preceding Employee’s\ntermination of employment.\n(iii) Non-Interference with Business Relationships. During the Restricted Period, Employee will not interfere with, or attempt to interfere\nwith, business relationships (whether formed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client,\ncustomers, suppliers, partners, of Evercore, on the other hand, in any such case determined as of the Relevant Date.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During the term of Employee’s employment and during the twelve\nmonths immediately following the date of any termination of Employee’s employment with Evercore, Employee will not, whether on Employee’s\nown behalf or on behalf of or in conjunction with any Person, directly or indirectly (other than in the ordinary course of Employee’s employment\nwith Evercore on Evercore’s behalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee’s termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within one year prior to or after, the termination of Employee’s employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n-4-\n(b) The restrictions described in Sections 2(a)(i)-(iii) above shall not apply following any termination of Employee’s employment without\n“Cause” or for “Good Reason” (as such terms are defined in the Employment Agreement); provided, however, that the Company may elect to have\nsuch restrictions apply for up to six months following a termination of Employee’s employment without Cause or for Good Reason to the extent that\nthe Company (i) notifies Employee of such election in writing within five business days following the date of such termination of employment and\n(ii) continues to pay Employee his “Base Salary” (as defined in the Employment Agreement) and provide Employee with medical benefits on the\nsame basis as is provided to actively employed executives of Evercore for the duration of such restrictive period.\n(c) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Section 2 to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, prior to or\nduring Employee’s employment with Evercore, that are relevant to or implicated by such employment (“Prior Works”), to the extent Employee has\nretained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free, worldwide,\nassignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) therein to the extent of Employee’s rights in such Prior Work for all purposes in\nconnection with Evercore’s current and future business.\n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee’s employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources (“Company Works”),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore’s sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n-5-\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore’s expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore’s rights in the Prior Works and Company Works as set forth in this Section 3. If\nEvercore is unable for any other reason to secure Employee’s signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in Employee’s\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n(f) The provisions of Section 3 shall survive the termination of Employee’s employment for any reason.\n4. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee’s employment with Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such confidential information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges and\nagrees that Evercore’s remedies at law for a breach or threatened breach of any of the provisions of Section 1, Section 2, and Section 3 would be\ninadequate and, in recognition of this fact, Employee agrees that, in the event of any material breach of Sections 1 through 3 hereof that Employee\nfails to cure within 10 business days after receiving written notice thereof from Evercore, in addition to any remedies at law, Evercore, without\nposting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by Evercore\n(other than any vested benefits\n-6-\nunder any retirement plan, as may otherwise be required by applicable law to be provided or to the extent that Evercore has agreed not to offset or\nforfeit any payments, benefits or entitlements pursuant to any other agreement between Evercore and Employee) and, in the event of any breach or\nthreatened breach of Sections 1 through 3 hereof, seek equitable relief in the form of specific performance, temporary restraining order, temporary or\npermanent injunction or any other equitable remedy which may then be available; provided, however, that if it is subsequently determined in a final\nand binding arbitration or litigation that Employee did not materially breach any such provision, Evercore will promptly pay any payments or\nprovide any benefits, which Evercore may have ceased to pay when originally due and payable, plus an additional amount equal to interest\n(calculated based on the applicable federal rate for the month in which such final determination is made) accrued on the applicable payment or the\namount of the benefit, as applicable, beginning from the date such payment or benefit was originally due and payable through the day preceding the\ndate on which such payment or benefit is ultimately paid hereunder.\n5. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof\nand supersedes any other agreement with respect to the subject matter hereof. There are no restrictions, agreements, promises, warranties, covenants\nor undertakings between the parties with respect to the subject matter herein other than those expressly set forth herein. This Agreement may not be\naltered, modified, or amended except by written instrument signed by the parties hereto.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n-7-\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[signature pages follow]\n-8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS INC.\nBy: /s/ Robert B. Walsh\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nBy: /s/ Ralph L. Schlosstein\nRalph L. Schlosstein\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)
a1c8a16acba29200a9bf1caeccfaac90.pdf	effective_date jurisdiction party term	EX-10 .4 5 exhibit104-confidentiality.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT, DATED FEBRUARY 19, 2014\nEXHIBIT 10.4\nCONFIDENTIALITY AND\nNON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (“Agreement”) is entered into as of February 19, 2014, by and\nbetween Calpine Corporation, a Delaware corporation with its principal executive offices at 717 Texas Avenue, Suite\n1000, Houston, Texas 77002 ("Calpine"); and LS Power Equity Advisors, LLC, a Delaware limited liability company,\nwith its principal executive offices at 1700 Broadway, 35\nth Floor, NY, NY 10019 (“LS Power”), referred to collectively\nas "Parties" and individually as "Party."\nRECITALS\nA.\nThe Parties desire to exchange certain proprietary or confidential information for the purpose of evaluating the\npotential acquisition of certain of Calpine’s power generating facilities and other assets (the “Proposed\nTransaction”); and\nB.\nThe Parties are willing to provide such information for such purpose in accordance with the terms hereof;\nNOW, THEREFORE, Calpine and LS Power do hereby mutually agree as follows:\n1. Definitions.\na.\n"Confidential Information" shall mean all confidential or proprietary written, recorded, electronic or oral\ninformation or data (including without limitation research, developmental, engineering, manufacturing,\ntechnical, marketing, sales, financial, operating, performance, cost, business and process information or\ndata, trade secrets, discoveries, ideas, designs, data, source code, object code, processes, computer\nprograms, developments, flow diagrams, know-how, and computer programming and other software and\nsoftware techniques) provided (whether such confidentiality or proprietary status is indicated orally or in\nwriting, whether or not the specific words "confidential" or "proprietary" are used) to a Party (the\n“Receiving Party”) by the other Party (the “Disclosing Party”) in the course of the exchange of such\ninformation or data between the Parties. Without limiting the aforesaid, the existence of discussions\nbetween the Parties regarding the Proposed Transaction shall constitute Confidential Information\nhereunder.\nb.\n“Person” shall be broadly interpreted to include, without limitation, any corporation, company,\npartnership, other entity or individual.\nc.\n“Representatives” shall mean as to any Person, its directors, officers, employees, agents and advisors\n(including, without limitation, financial advisors, attorneys and accountants).\n2.\nConfidentiality and Non-Use. In consideration of each Party's providing Confidential Information, the Parties\nagree as follows:\n1\na.\nThe Receiving Party shall hold confidential and not disclose to any Person, without the prior written\nconsent of the Disclosing Party, all Confidential Information and any information about the Proposed\nTransaction, or the terms or conditions or any other facts relating thereto, including, without limitation,\nthe fact that discussions are taking place with respect thereto or the status thereof, or the fact that\nConfidential Information has been made available to the Receiving Party or its Representatives; provided,\nhowever, that the Receiving Party may disclose such Confidential Information to its Representatives who\nare actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need\nto know the Confidential Information for the purpose of evaluating the Proposed Transaction;\nb.\nThe Receiving Party shall cause all its Representatives to observe the terms of this Agreement and shall\nbe responsible for any breach of the terms of this Agreement by it or its Representatives; and\nc.\nThe Receiving Party shall return or destroy all Confidential Information (including all copies thereof)\nwithin thirty (30) days of receipt of a written request.\nIn addition to the foregoing, the Receiving Party will not use the Confidential Information (a) in any way\ndetrimental to the Disclosing Party’s shareholders or (b) for any purpose other than in connection with the\nProposed Transaction between the Parties.\n3.\nExceptions to the Confidentiality and Non-Use Obligations. The obligations imposed by Section 2 hereof shall\nnot apply, or shall cease to apply, to any Confidential Information if or when, but only to the extent that, such\nConfidential Information:\na.\nwas known to the Receiving Party prior to the receipt of the Confidential Information; or\nb.\nwas, or becomes through no breach of the Receiving Party's obligations hereunder, known to the public;\nor\nc.\nbecomes known to the Receiving Party from sources other than the Disclosing Party under circumstances\nnot involving any breach of any confidentiality obligation; or\nd.\nis independently developed by the Receiving Party, as evidenced by the written records thereof.\nIt shall not be a breach of the confidentiality obligations hereof for a Receiving Party to disclose Confidential\nInformation where, but only to the extent that, such disclosure is required by law or applicable legal process,\nprovided in such case the Receiving Party shall (i) give the earliest notice possible to the Disclosing Party that\nsuch disclosure is or may be required and (ii) reasonably cooperate in protecting such confidential or proprietary\nnature of the Confidential Information which must so be disclosed.\n2\n4.\nNo Further Agreements Hereunder. Neither Calpine nor LS Power or any parent, subsidiary or affiliate thereof,\nshall be under any obligation to enter into any further agreements with the other signatory hereto or its parents,\nsubsidiaries or affiliates of any nature whatsoever as a result of this Agreement. The Parties shall be free at all\ntimes to hold negotiations or enter into agreements with any other persons whatsoever (including with respect to\nprojects under discussion by the Parties hereto) in addition to or in lieu of the discussions hereunder and any such\nactivities shall not be a breach of this agreement or any obligations owed to the other Party hereunder. Each Party\nhereto reserves the right, in its sole discretion, to decline, to retract or to reject at any time any proposal which\nhas not yet become legally binding by execution of a written agreement between the Parties with respect thereto,\nor with respect to any further agreements or business arrangements with the other Party hereto, its parents,\nsubsidiaries or affiliates and to terminate all further discussions and negotiations.\n5.\nNo Representations and Warranties. Each of the Parties make no representation or warranties, express or implied,\nof any kind to the other Party with respect to the Confidential Information, including without limitation with\nrespect to the accuracy or completeness thereof. Any representations or warranties shall be made thereby, if at all,\nonly in definitive written agreements that may be entered into hereafter.\n6.\nTermination; Duration of Obligations. Unless sooner terminated by mutual written Agreement of the Parties\nhereto, this Agreement and the obligations hereunder shall terminate one (1) year from the date hereof.\n7.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties and\nsupersedes all prior communications, agreements and understandings between the Parties relating to the subject\nmatter hereof.\n8.\nWaivers; Amendments; Assignment; Counterparts. This Agreement may not be modified, amended or waived\nexcept by a written instrument duly executed by both Parties. No failure or delay by either Party in exercising any\nright, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis Agreement may not be assigned by either Party without the prior written consent of the other and shall be\nbinding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be\nsigned in two or more counterpart originals, each of which shall constitute an original document. The Parties\nagree that this Agreement can be executed via facsimile signatures and be binding.\n9.\nGoverning Law; Disputes. This Agreement is made subject to and shall be construed under the laws of the State\nof New York, without giving effect to its principles or rules regarding conflicts of laws, and that the state and\nfederal courts situated in the State of New York shall have exclusive jurisdiction to resolve any disputes with\nrespect to this Agreement or the Confidential Information with each Party irrevocably consenting to the\njurisdiction thereof for any actions, suits or proceedings arising out of or relating to this Agreement or the\nConfidential Information, and each Party irrevocably waives its rights to jury trials with respect thereto.\n3\n10. Remedies. Without prejudice to the rights and remedies otherwise available to either Party, each Party shall be\nentitled to equitable relief by way of injunction or otherwise if the Receiving Party or any of its Representatives\nbreach or threaten to breach any of the provisions of this Agreement and the Receiving Party shall not plead in\ndefense thereto that there would be an adequate remedy at law.\n11. Non-Publicity: All media releases, public announcements and other disclosures by either Party relating to this\nAgreement or the subject matter hereof, including promotional or marketing material, but excluding\nannouncements intended solely for internal distribution or to meet legal or regulatory requirements, shall be\ncoordinated with and approved by the other Party prior to release. In addition, the Receiving Party shall refrain\nfrom removing, overprinting or defacing any notices of copyright, trademark, logo or other proprietary\nidentifications or notices of confidentiality, from any originals or copies of the Disclosing Party’s Confidential\nInformation.\nIN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by their respective, fully\nauthorized representatives as of the date first written above.\nCalpine Corporation\nLS Power Equity Advisors, LLC\nBy:\n/s/ W. THADDEUS MILLER\nBy:\n/s/ JAMES BARTLETT\nName: W. Thaddeus Miller\nName: James Bartlett\nTitle:\nExecutive Vice President, Chief Legal\nOfficer & Secretary\nTitle:\nPresident\nDate: 02/19/14\nDate:\n02/19/14\n4	EX-10.4 5 exhibit104-confidentiality.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT, DATED FEBRUARY 19, 2014 EXHIBIT 10.4\nCONFIDENTIALITY AND\nNON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (“Agreement”) is entered into as of February 19, 2014, by and between Calpine Corporation, a Delaware corporation with its principal executive offices at 717 Texas Avenue, Suite 1000, Houston, Texas 77002 ("Calpine"); and LS Power Equity Advisors, LLC, a Delaware limited liability company, with its principal executive offices at 1700 Broadway, 35" Floor, NY, NY 10019 (“LS Power”), referred to collectively as "Parties" and individually as "Party." B. RECITALS\nThe Parties desire to exchange certain proprietary or confidential information for the purpose of evaluating the potential acquisition of certain of Calpine’s power generating facilities and other assets (the “Proposed Transaction”); and The Parties are willing to provide such information for such purpose in accordance with the terms hereof; NOW, THEREFORE, Calpine and LS Power do hereby mutually agree as follows: 1. 2. Definitions. "Confidential Information" shall mean all confidential or proprietary written, recorded, electronic or oral\ninformation or data (including without limitation research, developmental, engineering, manufacturing,\ntechnical, marketing, sales, financial, operating, performance, cost, business and process information or\ndata, trade secrets, discoveries, ideas, designs, data, source code, object code, processes, computer\nprograms, developments, flow diagrams, know-how, and computer programming and other software and\nsoftware techniques) provided (whether such confidentiality or proprietary status is indicated orally or in\nwriting, whether or not the specific words "confidential" or "proprietary" are used) to a Party (the\n“Receiving Party”) by the other Party (the “Disclosing Party”) in the course of the exchange of such\ninformation or data between the Parties. Without limiting the aforesaid, the existence of discussions\nbetween the Parties regarding the Proposed Transaction shall constitute Confidential Information\nhereunder.\n“Person” shall be broadly interpreted to include, without limitation, any corporation, company,\npartnership, other entity or individual.\n“Representatives” shall mean as to any Person, its directors, officers, employees, agents and advisors\n(including, without limitation, financial advisors, attorneys and accountants).\nConfidentiality and Non-Use. In consideration of each Party's providing Confidential Information, the Parties agree as follows:\fa. The Receiving Party shall hold confidential and not disclose to any Person, without the prior written\nconsent of the Disclosing Party, all Confidential Information and any information about the Proposed\nTransaction, or the terms or conditions or any other facts relating thereto, including, without limitation,\nthe fact that discussions are taking place with respect thereto or the status thereof, or the fact that\nConfidential Information has been made available to the Receiving Party or its Representatives; provided,\nhowever, that the Receiving Party may disclose such Confidential Information to its Representatives who\nare actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need\nto know the Confidential Information for the purpose of evaluating the Proposed Transaction;\nb. The Receiving Party shall cause all its Representatives to observe the terms of this Agreement and shall\nbe responsible for any breach of the terms of this Agreement by it or its Representatives; and\nC. The Receiving Party shall return or destroy all Confidential Information (including all copies thereof)\nwithin thirty (30) days of receipt of a written request.\nIn addition to the foregoing, the Receiving Party will not use the Confidential Information (a) in any way\ndetrimental to the Disclosing Party’s shareholders or (b) for any purpose other than in connection with the\nProposed Transaction between the Parties.\nExceptions to the Confidentiality and Non-Use Obligations. The obligations imposed by Section 2 hereof shall\nnot apply, or shall cease to apply, to any Confidential Information if or when, but only to the extent that, such\nConfidential Information:\n \na. was known to the Receiving Party prior to the receipt of the Confidential Information; or\nb. was, or becomes through no breach of the Receiving Party's obligations hereunder, known to the public;\nor\nC. becomes known to the Receiving Party from sources other than the Disclosing Party under circumstances\nnot involving any breach of any confidentiality obligation; or\nd. is independently developed by the Receiving Party, as evidenced by the written records thereof.\nIt shall not be a breach of the confidentiality obligations hereof for a Receiving Party to disclose Confidential\nInformation where, but only to the extent that, such disclosure is required by law or applicable legal process,\nprovided in such case the Receiving Party shall (i) give the earliest notice possible to the Disclosing Party that\nsuch disclosure is or may be required and (ii) reasonably cooperate in protecting such confidential or proprietary\nnature of the Confidential Information which must so be disclosed.\nNo Further Agreements Hereunder. Neither Calpine nor LS Power or any parent, subsidiary or affiliate thereof,\nshall be under any obligation to enter into any further agreements with the other signatory hereto or its parents,\nsubsidiaries or affiliates of any nature whatsoever as a result of this Agreement. The Parties shall be free at all\ntimes to hold negotiations or enter into agreements with any other persons whatsoever (including with respect to\nprojects under discussion by the Parties hereto) in addition to or in lieu of the discussions hereunder and any such\nactivities shall not be a breach of this agreement or any obligations owed to the other Party hereunder. Each Party\nhereto reserves the right, in its sole discretion, to decline, to retract or to reject at any time any proposal which\nhas not yet become legally binding by execution of a written agreement between the Parties with respect thereto,\nor with respect to any further agreements or business arrangements with the other Party hereto, its parents,\nsubsidiaries or affiliates and to terminate all further discussions and negotiations.\nNo Representations and Warranties. Each of the Parties make no representation or warranties, express or implied,\nof any kind to the other Party with respect to the Confidential Information, including without limitation with\nrespect to the accuracy or completeness thereof. Any representations or warranties shall be made thereby, if at all,\nonly in definitive written agreements that may be entered into hereafter.\nTermination;_Duration of Obligations. Unless sooner terminated by mutual written Agreement of the Parties\nhereto, this Agreement and the obligations hereunder shall terminate one (1) year from the date hereof.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties and\nsupersedes all prior communications, agreements and understandings between the Parties relating to the subject\nmatter hereof.\nexcept by a written instrument duly executed by both Parties. No failure or delay by either Party in exercising any\nright, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis Agreement may not be assigned by either Party without the prior written consent of the other and shall be\nbinding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be\nsigned in two or more counterpart originals, each of which shall constitute an original document. The Parties\nagree that this Agreement can be executed via facsimile signatures and be binding.\nGoverning Law; Disputes. This Agreement is made subject to and shall be construed under the laws of the State\nof New York, without giving effect to its principles or rules regarding conflicts of laws, and that the state and\nfederal courts situated in the State of New York shall have exclusive jurisdiction to resolve any disputes with\nrespect to this Agreement or the Confidential Information with each Party irrevocably consenting to the\njurisdiction thereof for any actions, suits or proceedings arising out of or relating to this Agreement or the\nConfidential Information, and each Party irrevocably waives its rights to jury trials with respect thereto.\n10. Remedies. Without prejudice to the rights and remedies otherwise available to either Party, each Party shall be\nentitled to equitable relief by way of injunction or otherwise if the Receiving Party or any of its Representatives\nbreach or threaten to breach any of the provisions of this Agreement and the Receiving Party shall not plead in\ndefense thereto that there would be an adequate remedy at law.\n11. Non-Publicity: All media releases, public announcements and other disclosures by either Party relating to this\nAgreement or the subject matter hereof, including promotional or marketing material, but excluding\nannouncements intended solely for internal distribution or to meet legal or regulatory requirements, shall be\ncoordinated with and approved by the other Party prior to release. In addition, the Receiving Party shall refrain\nfrom removing, overprinting or defacing any notices of copyright, trademark, logo or other proprietary\nidentifications or notices of confidentiality, from any originals or copies of the Disclosing Party’s Confidential\nInformation.\nIN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by their respective, fully\nauthorized representatives as of the date first written above.\nCalpine Corporation LS Power Equity Advisors, LL.C\nBy: /s/ W. THADDEUS MILLER By: /s/ JAMES BARTLETT\nName: W. Thaddeus Miller Name: James Bartlett\nExecutive Vice President, Chief Legal\nTitle:  Officer & Secretary Title:  President\nDate:  02/19/14 Date:  02/19/14	EX-10.4 exhibit104-confidentiality.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT, DATED FEBRUARY 19, 2014\nEXHIBIT 10.4\nCONFIDENTIALITY AND\nNON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement ("Agreement") is entered into as of February 19, 2014, by and\nbetween Calpine Corporation, a Delaware corporation with its principal executive offices at 717 Texas Avenue, Suite\n1000,\nHouston,\nTexas\n77002\n("Calpine");\nand\nLS\nPower\nEquity\nAdvisors,\nLLC,\na\nDelaware\nlimited\nliability\ncompany,\nwith its principal executive offices at 1700 Broadway, 35th Floor, NY, NY 10019 ("LS Power"), referred to collectively\nas "Parties" and individually as "Party."\nRECITALS\nA.\nThe Parties desire to exchange certain proprietary or confidential information for the purpose of evaluating the\npotential acquisition of certain of Calpine's power generating facilities and other assets (the "Proposed\nTransaction") and\nB.\nThe Parties are willing to provide such information for such purpose in accordance with the terms hereof;\nNOW, THEREFORE, Calpine and LS Power do hereby mutually agree as follows:\n1. Definitions.\na.\n"Confidential Information" shall mean all confidential or proprietary written, recorded, electronic or oral\ninformation or data (including without limitation research, developmental, engineering, manufacturing,\ntechnical, marketing, sales, financial, operating, performance, cost, business and process information or\ndata, trade secrets, discoveries, ideas, designs, data, source code, object code, processes, computer\nprograms, developments, flow diagrams, know-how, and computer programming and other software and\nsoftware techniques) provided (whether such confidentiality or proprietary status is indicated orally or in\nwriting,\nwhether\nor\nnot\nthe\nspecific\nwords\n"confidential"\nor\n"proprietary"\nare\nused)\nto\na\nParty\n(the\n"Receiving Party") by the other Party (the "Disclosing Party") in the course of the exchange of such\ninformation or data between the Parties. Without limiting the aforesaid, the existence of discussions\nbetween the Parties regarding the Proposed Transaction shall constitute Confidential Information\nhereunder.\nb.\n"Person" shall be broadly interpreted to include, without limitation, any corporation, company,\npartnership, other entity or individual.\nC.\n"Representatives" shall mean as to any Person, its directors, officers, employees, agents and advisors\n(including without limitation, financial advisors, attorneys and accountants).\n2.\nConfidentiality. and Non-Use. In consideration of each Party's providing Confidential Information, the Parties\nagree as follows:\n1\na.\nThe Receiving Party shall hold confidential and not disclose to any Person, without the prior written\nconsent of the Disclosing Party, all Confidential Information and any information about the Proposed\nTransaction, or the terms or conditions or any other facts relating thereto, including, without limitation,\nthe fact that discussions are taking place with respect thereto or the status thereof, or the fact that\nConfidential\nInformation\nhas\nbeen\nmade\navailable\nto\nthe\nReceiving\nParty\nor\nits\nRepresentatives;\nprovided,\nhowever, that the Receiving Party may disclose such Confidential Information to its Representatives who\nare actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need\nto know the Confidential Information for the purpose of evaluating the Proposed Transaction;\nb.\nThe Receiving Party shall cause all its Representatives to observe the terms of this Agreement and shall\nbe responsible for any breach of the terms of this Agreement by it or its Representatives; and\nC.\nThe Receiving Party shall return or destroy all Confidential Information (including all copies thereof)\nwithin thirty (30) days of receipt of a written request.\nIn addition to the foregoing, the Receiving Party will not use the Confidential Information (a) in any way\ndetrimental to the Disclosing Party's shareholders or (b) for any purpose other than in connection with the\nProposed Transaction between the Parties.\n3.\nExceptions to the Confidentiality and Non-Use Obligations. The obligations imposed by Section 2 hereof shall\nnot apply, or shall cease to apply, to any Confidential Information if or when, but only to the extent that, such\nConfidential Information:\na.\nwas known to the Receiving Party prior to the receipt of the Confidential Information; or\nb.\nwas, or becomes through no breach of the Receiving Party's obligations hereunder, known to the public;\nor\nC.\nbecomes known to the Receiving Party from sources other than the Disclosing Party under circumstances\nnot involving any breach of any confidentiality obligation; or\nd.\nis independently developed by the Receiving Party, as evidenced by the written records thereof.\nIt shall not be a breach of the confidentiality obligations hereof for a Receiving Party to disclose Confidential\nInformation where, but only to the extent that, such disclosure is required by law or applicable legal process\nprovided in such case the Receiving Party shall (i) give the earliest notice possible to the Disclosing Party that\nsuch disclosure is or may be required and (ii) reasonably cooperate in protecting such confidential or proprietary\nnature of the Confidential Information which must SO be disclosed.\n2\n4.\nNo Further Agreements Hereunder. Neither Calpine nor LS Power or any parent, subsidiary or affiliate thereof,\nshall be under any obligation to enter into any further agreements with the other signatory hereto or its parents,\nsubsidiaries or affiliates of any nature whatsoever as a result of this Agreement. The Parties shall be free at all\ntimes to hold negotiations or enter into agreements with any other persons whatsoever (including with respect to\nprojects under discussion by the Parties hereto) in addition to or in lieu of the discussions hereunder and any such\nactivities\nshall\nnot\nbe\na\nbreach\nof\nthis\nagreement\nor\nany\nobligations\nowed\nto\nthe\nother\nParty\nhereunder.\nEach\nParty\nhereto reserves the right, in its sole discretion, to decline, to retract or to reject at any time any proposal which\nhas not yet become legally binding by execution of a written agreement between the Parties with respect thereto,\nor with respect to any further agreements or business arrangements with the other Party hereto, its parents,\nsubsidiaries or affiliates and to terminate all further discussions and negotiations.\n5.\nNo Representations and Warranties. Each of the Parties make no representation or warranties, express or implied,\nof any kind to the other Party with respect to the Confidential Information, including without limitation with\nrespect to the accuracy or completeness thereof. Any representations or warranties shall be made thereby, if at all,\nonly in definitive written agreements that may be entered into hereafter.\n6.\nTermination; Duration of Obligations. Unless sooner terminated by mutual written Agreement of the Parties\nhereto, this Agreement and the obligations hereunder shall terminate one (1) year from the date hereof.\n7.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties and\nsupersedes all prior communications, agreements and understandings between the Parties relating to the subject\nmatter hereof.\n8.\nWaivers; Amendments; Assignment; Counterparts. This Agreement may not be modified, amended or waived\nexcept by a written instrument duly executed by both Parties. No failure or delay by either Party in exercising any\nright, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis Agreement may not be assigned by either Party without the prior written consent of the other and shall be\nbinding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be\nsigned in two or more counterpart originals, each of which shall constitute an original document. The Parties\nagree that this Agreement can be executed via facsimile signatures and be binding.\n9.\nGoverning- Law; Disputes. This Agreement is made subject to and shall be construed under the laws of the State\nof New York, without giving effect to its principles or rules regarding conflicts of laws, and that the state and\nfederal courts situated in the State of New York shall have exclusive jurisdiction to resolve any disputes with\nrespect to this Agreement or the Confidential Information with each Party irrevocably consenting to the\njurisdiction thereof for any actions, suits or proceedings arising out of or relating to this Agreement or the\nConfidential Information, and each Party irrevocably waives its rights to jury trials with respect thereto.\n3\n10.\nRemedies. Without prejudice to the rights and remedies otherwise available to either Party, each Party shall be\nentitled to equitable relief by way of injunction or otherwise if the Receiving Party or any of its Representatives\nbreach or threaten to breach any of the provisions of this Agreement and the Receiving Party shall not plead in\ndefense thereto that there would be an adequate remedy at law.\n11.\nNon-Publicity: All media releases, public announcements and other disclosures by either Party relating to this\nAgreement or the subject matter hereof, including promotional or marketing material, but excluding\nannouncements intended solely for internal distribution or to meet legal or regulatory requirements, shall be\ncoordinated with and approved by the other Party prior to release. In addition, the Receiving Party shall refrain\nfrom removing, overprinting or defacing any notices of copyright, trademark, logo or other proprietary\nidentifications or notices of confidentiality from any originals or copies of the Disclosing Party's Confidential\nInformation.\nIN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by their respective, fully\nauthorized representatives as of the date first written above.\nCalpine Corporation\nLS Power Equity Advisors, LLC\nBy:\n/s/ W. THADDEUS MILLER\nBy:\n/s/ JAMES BARTLETT\nName: W. Thaddeus Miller\nName:\nJames Bartlett\nExecutive Vice President, Chief Legal\nTitle:\nOfficer & Secretary\nTitle:\nPresident\nDate:\n02/19/14\nDate:\n02/19/14\n4	EX-10 .4 5 exhibit104-confidentiality.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT, DATED FEBRUARY 19, 2014\nEXHIBIT 10.4\nCONFIDENTIALITY AND\nNON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (“Agreement”) is entered into as of February 19, 2014, by and\nbetween Calpine Corporation, a Delaware corporation with its principal executive offices at 717 Texas Avenue, Suite\n1000, Houston, Texas 77002 ("Calpine"); and LS Power Equity Advisors, LLC, a Delaware limited liability company,\nwith its principal executive offices at 1700 Broadway, 35\nth Floor, NY, NY 10019 (“LS Power”), referred to collectively\nas "Parties" and individually as "Party."\nRECITALS\nA.\nThe Parties desire to exchange certain proprietary or confidential information for the purpose of evaluating the\npotential acquisition of certain of Calpine’s power generating facilities and other assets (the “Proposed\nTransaction”); and\nB.\nThe Parties are willing to provide such information for such purpose in accordance with the terms hereof;\nNOW, THEREFORE, Calpine and LS Power do hereby mutually agree as follows:\n1. Definitions.\na.\n"Confidential Information" shall mean all confidential or proprietary written, recorded, electronic or oral\ninformation or data (including without limitation research, developmental, engineering, manufacturing,\ntechnical, marketing, sales, financial, operating, performance, cost, business and process information or\ndata, trade secrets, discoveries, ideas, designs, data, source code, object code, processes, computer\nprograms, developments, flow diagrams, know-how, and computer programming and other software and\nsoftware techniques) provided (whether such confidentiality or proprietary status is indicated orally or in\nwriting, whether or not the specific words "confidential" or "proprietary" are used) to a Party (the\n“Receiving Party”) by the other Party (the “Disclosing Party”) in the course of the exchange of such\ninformation or data between the Parties. Without limiting the aforesaid, the existence of discussions\nbetween the Parties regarding the Proposed Transaction shall constitute Confidential Information\nhereunder.\nb.\n“Person” shall be broadly interpreted to include, without limitation, any corporation, company,\npartnership, other entity or individual.\nc.\n“Representatives” shall mean as to any Person, its directors, officers, employees, agents and advisors\n(including, without limitation, financial advisors, attorneys and accountants).\n2.\nConfidentiality and Non-Use. In consideration of each Party's providing Confidential Information, the Parties\nagree as follows:\n1\na.\nThe Receiving Party shall hold confidential and not disclose to any Person, without the prior written\nconsent of the Disclosing Party, all Confidential Information and any information about the Proposed\nTransaction, or the terms or conditions or any other facts relating thereto, including, without limitation,\nthe fact that discussions are taking place with respect thereto or the status thereof, or the fact that\nConfidential Information has been made available to the Receiving Party or its Representatives; provided,\nhowever, that the Receiving Party may disclose such Confidential Information to its Representatives who\nare actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need\nto know the Confidential Information for the purpose of evaluating the Proposed Transaction;\nb.\nThe Receiving Party shall cause all its Representatives to observe the terms of this Agreement and shall\nbe responsible for any breach of the terms of this Agreement by it or its Representatives; and\nc.\nThe Receiving Party shall return or destroy all Confidential Information (including all copies thereof)\nwithin thirty (30) days of receipt of a written request.\nIn addition to the foregoing, the Receiving Party will not use the Confidential Information (a) in any way\ndetrimental to the Disclosing Party’s shareholders or (b) for any purpose other than in connection with the\nProposed Transaction between the Parties.\n3.\nExceptions to the Confidentiality and Non-Use Obligations. The obligations imposed by Section 2 hereof shall\nnot apply, or shall cease to apply, to any Confidential Information if or when, but only to the extent that, such\nConfidential Information:\na.\nwas known to the Receiving Party prior to the receipt of the Confidential Information; or\nb.\nwas, or becomes through no breach of the Receiving Party's obligations hereunder, known to the public;\nor\nc.\nbecomes known to the Receiving Party from sources other than the Disclosing Party under circumstances\nnot involving any breach of any confidentiality obligation; or\nd.\nis independently developed by the Receiving Party, as evidenced by the written records thereof.\nIt shall not be a breach of the confidentiality obligations hereof for a Receiving Party to disclose Confidential\nInformation where, but only to the extent that, such disclosure is required by law or applicable legal process,\nprovided in such case the Receiving Party shall (i) give the earliest notice possible to the Disclosing Party that\nsuch disclosure is or may be required and (ii) reasonably cooperate in protecting such confidential or proprietary\nnature of the Confidential Information which must so be disclosed.\n2\n4.\nNo Further Agreements Hereunder. Neither Calpine nor LS Power or any parent, subsidiary or affiliate thereof,\nshall be under any obligation to enter into any further agreements with the other signatory hereto or its parents,\nsubsidiaries or affiliates of any nature whatsoever as a result of this Agreement. The Parties shall be free at all\ntimes to hold negotiations or enter into agreements with any other persons whatsoever (including with respect to\nprojects under discussion by the Parties hereto) in addition to or in lieu of the discussions hereunder and any such\nactivities shall not be a breach of this agreement or any obligations owed to the other Party hereunder. Each Party\nhereto reserves the right, in its sole discretion, to decline, to retract or to reject at any time any proposal which\nhas not yet become legally binding by execution of a written agreement between the Parties with respect thereto,\nor with respect to any further agreements or business arrangements with the other Party hereto, its parents,\nsubsidiaries or affiliates and to terminate all further discussions and negotiations.\n5.\nNo Representations and Warranties. Each of the Parties make no representation or warranties, express or implied,\nof any kind to the other Party with respect to the Confidential Information, including without limitation with\nrespect to the accuracy or completeness thereof. Any representations or warranties shall be made thereby, if at all,\nonly in definitive written agreements that may be entered into hereafter.\n6.\nTermination; Duration of Obligations. Unless sooner terminated by mutual written Agreement of the Parties\nhereto, this Agreement and the obligations hereunder shall terminate one (1) year from the date hereof.\n7.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties and\nsupersedes all prior communications, agreements and understandings between the Parties relating to the subject\nmatter hereof.\n8.\nWaivers; Amendments; Assignment; Counterparts. This Agreement may not be modified, amended or waived\nexcept by a written instrument duly executed by both Parties. No failure or delay by either Party in exercising any\nright, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis Agreement may not be assigned by either Party without the prior written consent of the other and shall be\nbinding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be\nsigned in two or more counterpart originals, each of which shall constitute an original document. The Parties\nagree that this Agreement can be executed via facsimile signatures and be binding.\n9.\nGoverning Law; Disputes. This Agreement is made subject to and shall be construed under the laws of the State\nof New York, without giving effect to its principles or rules regarding conflicts of laws, and that the state and\nfederal courts situated in the State of New York shall have exclusive jurisdiction to resolve any disputes with\nrespect to this Agreement or the Confidential Information with each Party irrevocably consenting to the\njurisdiction thereof for any actions, suits or proceedings arising out of or relating to this Agreement or the\nConfidential Information, and each Party irrevocably waives its rights to jury trials with respect thereto.\n3\n10. Remedies. Without prejudice to the rights and remedies otherwise available to either Party, each Party shall be\nentitled to equitable relief by way of injunction or otherwise if the Receiving Party or any of its Representatives\nbreach or threaten to breach any of the provisions of this Agreement and the Receiving Party shall not plead in\ndefense thereto that there would be an adequate remedy at law.\n11. Non-Publicity: All media releases, public announcements and other disclosures by either Party relating to this\nAgreement or the subject matter hereof, including promotional or marketing material, but excluding\nannouncements intended solely for internal distribution or to meet legal or regulatory requirements, shall be\ncoordinated with and approved by the other Party prior to release. In addition, the Receiving Party shall refrain\nfrom removing, overprinting or defacing any notices of copyright, trademark, logo or other proprietary\nidentifications or notices of confidentiality, from any originals or copies of the Disclosing Party’s Confidential\nInformation.\nIN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by their respective, fully\nauthorized representatives as of the date first written above.\nCalpine Corporation\nLS Power Equity Advisors, LLC\nBy:\n/s/ W. THADDEUS MILLER\nBy:\n/s/ JAMES BARTLETT\nName: W. Thaddeus Miller\nName: James Bartlett\nTitle:\nExecutive Vice President, Chief Legal\nOfficer & Secretary\nTitle:\nPresident\nDate: 02/19/14\nDate:\n02/19/14\n4
a373847e741d0b4db97466b8964a66ae.pdf	effective_date jurisdiction party term	EX-10.1 2 d634197dex101.htm EX-10.1\nExhibit 10.1\nLOGO\nDavid N. Farr\nChairman and\nChief Executive Officer\nEmerson\n8000 West Florissant Avenue.\nP.O . Box 4100\nSt. Louis, MO 63136-8506\nUSA\nEdward L. Monser\n8000 West Florissant Ave.\nSt. Louis, MO 63136\nDear Ed:\nOn behalf of the entire Emerson organization, I want to congratulate you on your 37+ years of dedicated service, insights and passion to create a better\nEmerson. Thank you for your significant contributions to the tremendous success of Emerson. Your accomplishments and support of me, the Board of\nDirectors and Emerson shareholders have been extraordinary and very much appreciated. This Letter Agreement (“Agreement”) sets out the terms of\nyour retirement, including your resignation as an employee and officer of Emerson Electric Co. Throughout this Agreement, the term “Emerson” means\nEmerson Electric Co. together with any and all other entities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your retirement\nand the terms of this Agreement are effective as of October 1, 2018 (“Retirement Date”).\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson’s trade secrets and confidential and proprietary information\n(“Confidential Information”), which includes or concerns, but is not limited to, attorney/client communications, global strategic communications,\ninformation pertaining to strategic planning or other strategy, mergers and acquisitions, corporate technology, intellectual property, customers, pricing,\nbusiness methods and operations, business policies, procedures, practices and techniques, legal opinions and legal matters, research or development\nprojects or results, sales, finances, products, suppliers, personnel performance and compensation, plans for future development, marketing practices,\nmarket participation, market studies, and financial forecasts and budgeting. You agree that disclosure of such Confidential Information would be\ndetrimental to Emerson and agree that at no time following termination of your employment with Emerson will you directly or indirectly disclose or\ncause the disclosure of any Confidential Information to any person, firm, corporation, or entity, no matter what the purpose. You further agree that you\nwill not directly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing authorities; communicate\nwith your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or agents bind themselves in writing to the same\nnon-disclosure obligations as set forth above; or, to respond to any lawfully issued subpoena or order of a court of competent jurisdiction or legitimate\ndiscovery request pursuant to state or federal rules of civil procedure. If any such subpoena, order of court or discovery request is received, you agree to\nsend to Emerson’s General Counsel no later than two days after receipt via email to sara.bosco@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson’s General Counsel within a three day period following the Retirement Date all such Confidential\nInformation, any other property of Emerson, and all copies thereof in your possession or control, whether in handwritten, typed, printed, graphic or\nelectronic form (whether stored on Emerson-owned or personally owned or used devices, including but not limited to personal computers, tablets, smart\nphones, memory sticks, thumb drives, or on-site or off-site storage locations). If after such three-day period you determine that you have any\nConfidential Information or other property of Emerson in your possession or control, you shall immediately deliver such Confidential Information or\nproperty to the office of Emerson’s General Counsel. You further agree to deliver your signed certification of compliance with the provisions of this\nparagraph promptly upon request made to you in writing by Emerson’s General Counsel.\n2. NON-DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment with Emerson,\nyour retirement, or the terms of this Agreement. If inquiry is made by anyone regarding your employment by, or retirement from, Emerson, you agree to\nstate only “I have retired from Emerson effective October 1, 2018. I personally decided to retire, and I have enjoyed my many years with Emerson.\nEmerson is a tremendous company and I wish it well.”\nYou also agree that you will not, directly or indirectly, disparage or make or cause to be made, any comments, statements, or communications of any sort\nto anyone—whether true or false— that may reasonably be considered to be derogatory or detrimental to Emerson or any Released Parties (as defined in\nthe Release Agreement attached as Exhibit A), their reputations, or their services. You acknowledge that Emerson has a good reputation locally,\nnationally and internationally, and you will take no action or engage in any conduct that could injure or diminish that good reputation.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson’s Chief Executive Officer and General Counsel, directly or indirectly\nfor a period of five years from your Retirement Date (“Restricted Period”):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in, any person, firm, corporation, or other entity\nengaged in business activities anywhere in the world that directly or indirectly competes with the businesses of Emerson as conducted on the date of this\nAgreement or as contemplated on the date hereof to be developed during the Restricted Period;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other investment vehicle,\nhowever structured, that either directly or indirectly or through portfolio company investments or otherwise competes with the businesses of Emerson as\nconducted on the date hereof or as contemplated on the date hereof to be developed during the Restrictive Period;\n2\n(c) assist any third party in connection with any acquisition of any business of Emerson, whether through an acquisition or stock or assets or\notherwise, or in the sale of any business to Emerson;\n(d) assist any third party in connection with any attempt to assert control over or influence the management of Emerson, whether through the\nacquisition or stock by such third party, addition of board members recommended by such third party, a proxy solicitation by such third party or\notherwise;\n(e) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(f) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with Emerson;\n(g) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or consultant of\nEmerson to leave such employment or separate his or her relationship with Emerson or induce any such person to do anything which you are restricted\nfrom doing by reason of this Agreement; or\n(h) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is listed on any national\nsecurities exchange, traded over-the- counter, or that is otherwise available for investment by the general public as long as you have no relationship with\nthe issuer of such securities or any affiliate thereof, except as an investor.\n4. REASONABLENESS ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of Emerson in light of your\nin-depth knowledge of Emerson’s global business, your present and prior positions with Emerson, and your access to Confidential Information relating\nto all of Emerson’s businesses. You also affirm your agreement to comply with all existing non-competition, invention disclosure and assignment,\nnon-disclosure and non-solicitation obligations you have with Emerson, including specifically your obligations under the Emerson Incentive Shares\nplans and related performance shares and restricted stock award agreements, and Emerson stock option plans and related option agreements, and\nEmerson non-qualified supplemental executive retirement plan participation. You agree that your obligations set forth in this Agreement are in addition\nto and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct conflict, in which case the terms of this\nAgreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to you herein but for the\nrestrictions in this Agreement. You agree that a violation of this Agreement and the other agreements referenced in this Section 4 would result in\nirreparable injury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other remedies to which\nEmerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable attorneys’ fees Emerson incurs to seek\nenforcement of any provision contained herein, whether or not litigation is commenced.\n3\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits provided to you under this\nAgreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of the economic value of all benefits provided to\nyou under this Agreement prior to the date of breach. You agree that this liquidated damage provision and other remedies are necessary because\nsubstantial damage will accrue to Emerson as the result of a breach, and the amount of damages attributable to such breach may be uncertain and\ndifficult to calculate. Payment of liquidated damages shall in no way affect the settlement and release of claims by you, nor shall payment of liquidated\ndamages limit the enforceability of any clause in this Agreement or any other agreement referenced in this Section 4 or the ability of Emerson to seek\ndamages and any other relief from you as provided under applicable law or any agreement between you and Emerson.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective Directors, officers, employees and agents from any and all claims or liability of whatever\nnature and will execute on your Retirement Date the Release Agreement attached hereto as Exhibit A. If the Release Agreement attached as Exhibit A is\nnot executed by you, this Agreement shall be null and void. You also agree that no benefits or other compensation described in this Agreement (other\nthan the payment of your base salary described in Section 8.A . hereof, shall be paid or provided to you until expiration of the seven-day revocation\nperiod set forth in Paragraph 3(e) of the Release Agreement.\n6. RESIGNATIONS\nYou agree to execute the Officer Resignation Form attached hereto as Exhibit B, effective as of October 1, 2018.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson’s Clawback Policy, which provides: “If the Board determines that an executive officer has engaged in\nintentional misconduct that caused or partially caused a material restatement of the Company’s consolidated financial statements, the Board may, to the\nextent permitted by law and to the extent it determines that it is in the Company’s best interests to do so, require reimbursement to the Company of, or\nreduce or cancel, that portion of annual incentive or any long-term incentive compensation paid or credited to such executive officer on or after\nFebruary 1, 2015 that would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term “executive officer” means any officer of the Company who is required to file reports pursuant to\nSection 16 of the Securities Exchange Act of 1934.”\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon your compliance with your obligations and covenants in this Agreement and any other agreement entered into between\nyou and Emerson, you will receive the compensation and benefits outlined below. The compensation and benefits set forth herein are in lieu of and\nreplace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will remain on the Emerson payroll and receive your current base salary through your retirement date.\nB. You will remain eligible to participate in the Fiscal 2018 Emerson Electric Extra Salary Program under the same terms and conditions as\nother participants in the Program. We will recommend to the Compensation Committee that you receive a payment under the Program for Fiscal 2018\nand subject to their approval, payment will be made consistent with prior practices.\n4\nC. You may continue coverage under the former split dollar and group universal life policies owned by you through your retirement date. After\nyour retirement, you may continue coverage under such policies at your own expense, subject to the terms of the underlying policies.\nD. Your executive perquisites, including leased automobile, club dues, executive physical and financial tax planning, will end on the Retirement\nDate, unless noted otherwise below:\ni. You may complete your 2018 calendar year tax return under the executive financial tax planning program, subject to the normal terms and\nconditions of the program.\nii. Under the normal terms and conditions of the program, you will be required to return or purchase at its fair market value, your company\nautomobile within thirty (30) days following your retirement date.\nE. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation Committee of the Board of\nDirectors, all of your outstanding options will be exercisable for a period of up to five (5) years after the Retirement Date, but no longer than the original\nexpiration date of the option.\nF. The Compensation Committee has determined that you will remain eligible to receive payment of your outstanding Performance Shares\nawards, subject to the other applicable terms of Emerson’s Incentive Shares Plans and the applicable Performance Shares Program which apply to all\nparticipants, including achievement of the performance objectives under each Program, and based on the actual payout percentage applicable to each\nProgram, and at the time provided therefor under the respective programs, as follows:\ni. You will remain eligible to receive a full payout under the 2016 and 2017 Performance Shares Programs.\nii. You will remain eligible to receive up to a 50% pro-rata payment under the 2018 Performance Shares Program.\nG. Pursuant to the terms of Emerson’s Incentive Shares Plans, the Compensation Committee has determined that your award of restricted shares\nwill continue to vest as specified in the original award document and be payable to you upon the vesting date of the award (November 1, 2019), and that\nyou will continue to receive dividends on the restricted share award to the extent provided in the original award agreement.\nH. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan, you will be eligible to receive your\nmonthly pension benefits accrued under such plan as of the Retirement Date. Pursuant to the terms and conditions of the related Emerson Electric Co.\nPension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits you would have been eligible to receive\nunder the aforesaid all-employee Retirement Plan were it not for the compensation limitations imposed under the Internal Revenue Code (“Code”)), you\nwill also be eligible to receive your monthly pension benefits accrued as of your Retirement Date under such plan. Payment of your accrued benefits\nunder the non-qualified supplemental executive retirement plan which are not “grandfathered” under Section 409A of the Code shall be deferred to the\nextent required by Code Section 409A. Payments of your pension benefits under each of the aforesaid plans will be paid monthly in the manner and\ntimes set forth in such plans, subject to the terms and conditions of such plans.\n5\nI. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k) plan) to the extent\npermitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the Emerson Electric Co. Savings\nInvestment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of the plan and your distribution elections thereunder. Distributions\nfrom these plans which are not “grandfathered” under Section 409A of the Code shall be deferred to the extent required by Code Section 409A.\nJ. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares program payouts,\nvesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to income tax and other withholdings as\nrequired by law.\nK. Except as provided for specifically above, after the Retirement Date you will not be permitted to continue participating in any Emerson\nbenefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the disability insurance program.\nL. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an activity in which you are\nprohibited from engaging hereunder during the Restricted Period, Emerson shall be relieved of all, and shall have no further, obligations to provide the\npayments or benefits specified in this Section 8 (unless otherwise required by law).\nThis Agreement is deemed to be entered in the State of Missouri and, without regard to conflict of laws principles, shall be interpreted in accordance\nwith and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or proceeding with respect to this Agreement shall\nbe brought and determined in the courts of the County of St. Louis, State of Missouri or of the United States of America for the Eastern District of\nMissouri and that you submit to the jurisdiction of such courts with respect to any such action or proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding this Agreement or any\nof the documents referenced in this Agreement, including the Release Agreement.\n6\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below. Once again, I thank you\nfor your many years of dedicated service to Emerson, and I wish you the very best in your retirement.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 2nd\nDAY OF (Month/Year) October 2018\n/s/ Edward L. Monser\nEdward L. Monser\n7\nEXHIBIT A – RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. (“Employer”) and Edward L. Monser\n(“Employee”) dated October 1, 2018 the (“Letter Agreement”). In consideration of the mutual promises and covenants contained in the Letter\nAgreement and herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby\nagree as follows:\n1. Employment. Employee was previously employed by Employer. The employment of Employee with Employer has ended as a result of\nEmployee’s retirement from Employer effective October 1, 2018.\n2. Release. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and this Release Agreement,\nEmployee, for himself and his heirs, to the fullest extent permitted by law, agrees to and does hereby waive, covenant not to sue, releases, and forever\ndischarges Employer, and each and every one of Employer’s parent, subsidiary and other affiliated entities (the “Emerson Entities”), and their respective\nagents, employees, officers, directors, stockholders, managers, members, successors, predecessors, contractors, attorneys, external counsel, agents and\nassigns (collectively referred to as “Released Parties”), from and with respect to all matters, claims, charges, demands, damages, causes of action, debts,\nliabilities, controversies, judgments, and suits of every kind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date\nthis Release Agreement becomes effective and including, but not limited to, those in any way related to Employee and/or Employee’s separation from\nemployment. This release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against Released\nParties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury, wrongful discharge,\nemotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or any other class protected by law),\nharassment, retaliation, claims for workers’ compensation benefits, claims for unpaid wages, any claim under the Age Discrimination in Employment\nAct, 29 U.S.C . §621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C . §2000e et seq., the Civil Rights Act of 1866, 42 U.S.C . §1981, the\nAmericans With Disabilities Act, 42 U.S.C . §12101, et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C . §1001, et seq., the\nFamily Medical Leave Act, 29 U.S.C . §2601 et seq., the Fair Labor Standards Act of 1938, 29 U.S.C . §201 et seq., the Missouri Human Rights Act, Mo.\nRev. Stat. §213.010 et seq.; the Missouri Equal Pay for Women Act, Mo. Rev. Stat. §290.400 et seq., the Missouri Service Letter statute Mo. Rev. Stat.\n§290.14, the Missouri Minimum Wage Law, Mo. Rev. Stat. §290.010 et seq., the Missouri Wage Payment Law, Mo. Rev. Stat. §290.010 et seq., any\nclaim under common law, and any claim under any federal, state or local statute, regulation, constitution, order or executive order. This release also\nexpressly includes, but is not limited to, any claim for attorneys’ fees or costs. Employee affirms and warrants that he has made no charge, claim,\ncomplaint, or otherwise initiated action against Employer in any government agency, court or other forum and that no such matter is pending. Employee\nfurther affirms and warrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer or director of\nEmployer engaging in any act related to the performance of their duties at or for Employer, which Employee knows or believes to be illegal and\nEmployee acknowledges that he has never complained of any unlawful conduct by Employer. Employee hereby releases and relinquishes any and all\nrights to employment, reinstatement and any right to future employment with Employer or the Emerson Entities. Employee also waives and\nA-1\nreleases any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or\nmulti- party action or proceeding based on a claim in which Employer or any one or more Released Parties is a party. Notwithstanding the foregoing,\nEmployee is not waiving any right to enforce any term or provision of the Letter Agreement, or any claims solely relating to the validity of this Release\nAgreement under the Age Discrimination in Employment Act.\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or claims arising under the\nAge Discrimination in Employment Act of 1967 (“ADEA”) and\n(a) Employee has read this Agreement, and the Letter Agreement, in their entirety and understands all of their terms; and\n(b) Employee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in exchange for the consideration\nprovided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is otherwise entitled; and\n(c) Employee acknowledges that Employer has, and does, hereby expressly advise him to consult with an attorney of his choosing, at his\nown expense, prior to executing this Release Agreement and the Letter Agreement; and\n(d) Employee agrees that he has been given a period of not less than forty- five (45) days from receipt of this document within which to\nconsider this Release Agreement and the Letter Agreement, and that if Employee elects to sign this Release Agreement prior to the expiration of\nthe 45-day consideration period specified herein, he does so knowingly and voluntarily and with full opportunity to consult with an attorney; and\n(e) Employee acknowledges he has been advised by Employer that he is entitled to revoke this Release Agreement (in the event he\nexecutes this Release Agreement) within seven (7) days after executing it and that this Agreement will not and does not become effective or\nenforceable until the seven (7) day revocation period has expired; and\n(f) The parties agree that should Employee exercise his right to revoke the waiver under this paragraph 3, this entire Release Agreement\nand Letter Agreement, and their obligations, are null and void and of no effect and, notwithstanding any other provision of this Release Agreement\nor the Letter Agreement to the contrary, no payment or other consideration shall be due, owing, paid or provided until the seven (7) day revocation\nperiod has expired without revocation by Employee. Notice of Employee’s decision to revoke the waiver may be sent to Emerson’s Senior Vice\nPresident, Secretary and General Counsel by fax (at 314-553-3205), email to sara.bosco@emerson.com or hand-delivery.\n4. Remedies. Without limiting the remedies available to Employer for any breach of this Release Agreement, Employee agrees that any breach\nof either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any future payments to be made to, or benefits to be\nprovided to, Employee and all other remedies and relief as specifically set forth further in the Letter Agreement shall be available to Employer.\n5. Successors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties’ respective heirs, administrators,\nrepresentatives, executors, successors, and assigns.\nA-2\n6. Review by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that Employee was advised of his\nright to review this Release Agreement with an attorney at his expense, and that Employee fully understands the meaning and intent of this Release\nAgreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Edward L. Monser\nEdward L. Monser\nDate: October 2, 2018\nA-3\nEXHIBIT B - OFFICER RESIGNATION\nI, Edward L. Monser, do hereby submit my resignation, effective October 1, 2018, from my position as President of Emerson Electric Co., as well as\nfrom any other positions (if any) I may hold with any subsidiaries or affiliates of Emerson.\n/s/ Edward L. Monser\nEdward L. Monser	EX-10.1 2 d634197dex101.htm EX-10.1\nExhibit 10.1\nDavid N. Farr\nChairman and\nChief Executive Officer\n|#.LOGO Emerson\n8000 West Florissant Avenue.\nP.O. Box 4100\nSt. Louis, MO 63136-8506\nUSA\nEdward L. Monser\n8000 West Florissant Ave.\nSt. Louis, MO 63136\nDear Ed:\nOn behalf of the entire Emerson organization, I want to congratulate you on your 37+ years of dedicated service, insights and passion to create a better\nEmerson. Thank you for your significant contributions to the tremendous success of Emerson. Your accomplishments and support of me, the Board of\nDirectors and Emerson shareholders have been extraordinary and very much appreciated. This Letter Agreement (“Agreement”) sets out the terms of\nyour retirement, including your resignation as an employee and officer of Emerson Electric Co. Throughout this Agreement, the term “Emerson” means\nEmerson Electric Co. together with any and all other entities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your retirement\nand the terms of this Agreement are effective as of October 1, 2018 (“Retirement Date™).\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson’s trade secrets and confidential and proprietary information\n(“Confidential Information™), which includes or concerns, but is not limited to, attorney/client communications, global strategic communications,\ninformation pertaining to strategic planning or other strategy, mergers and acquisitions, corporate technology, intellectual property, customers, pricing,\nbusiness methods and operations, business policies, procedures, practices and techniques, legal opinions and legal matters, research or development\nprojects or results, sales, finances, products, suppliers, personnel performance and compensation, plans for future development, marketing practices,\nmarket participation, market studies, and financial forecasts and budgeting. You agree that disclosure of such Confidential Information would be\ndetrimental to Emerson and agree that at no time following termination of your employment with Emerson will you directly or indirectly disclose or\ncause the disclosure of any Confidential Information to any person, firm, corporation, or entity, no matter what the purpose. You further agree that you\nwill not directly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing authorities; communicate\nwith your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or agents bind themselves in writing to the same\nnon-disclosure obligations as set forth above; or, to respond to any lawfully issued subpoena or order of a court of competent jurisdiction or legitimate\ndiscovery request pursuant to state or federal rules of civil procedure. If any such subpoena, order of court or discovery request is received, you agree to\nsend to Emerson’s General Counsel no later than two days after receipt via email to sara.bosco@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson’s General Counsel within a three day period following the Retirement Date all such Confidential\nInformation, any other property of Emerson, and all copies thereof in your possession or control, whether in handwritten, typed, printed, graphic or\nelectronic form (whether stored on Emerson-owned or personally owned or used devices, including but not limited to personal computers, tablets, smart\nphones, memory sticks, thumb drives, or on-site or off-site storage locations). If after such three-day period you determine that you have any\nConfidential Information or other property of Emerson in your possession or control, you shall immediately deliver such Confidential Information or\nproperty to the office of Emerson’s General Counsel. You further agree to deliver your signed certification of compliance with the provisions of this\nparagraph promptly upon request made to you in writing by Emerson’s General Counsel.\n2. NON-DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment with Emerson,\nyour retirement, or the terms of this Agreement. If inquiry is made by anyone regarding your employment by, or retirement from, Emerson, you agree to\nstate only “I have retired from Emerson effective October 1, 2018. I personally decided to retire, and I have enjoyed my many years with Emerson.\nEmerson is a tremendous company and I wish it well.”\nYou also agree that you will not, directly or indirectly, disparage or make or cause to be made, any comments, statements, or communications of any sort\nto anyone—whether true or false— that may reasonably be considered to be derogatory or detrimental to Emerson or any Released Parties (as defined in\nthe Release Agreement attached as Exhibit A), their reputations, or their services. You acknowledge that Emerson has a good reputation locally,\nnationally and internationally, and you will take no action or engage in any conduct that could injure or diminish that good reputation.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson’s Chief Executive Officer and General Counsel, directly or indirectly\nfor a period of five years from your Retirement Date (“Restricted Period”):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in, any person, firm, corporation, or other entity\nengaged in business activities anywhere in the world that directly or indirectly competes with the businesses of Emerson as conducted on the date of this\nAgreement or as contemplated on the date hereof to be developed during the Restricted Period;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other investment vehicle,\nhowever structured, that either directly or indirectly or through portfolio company investments or otherwise competes with the businesses of Emerson as\nconducted on the date hereof or as contemplated on the date hereof to be developed during the Restrictive Period;\n2\n(c) assist any third party in connection with any acquisition of any business of Emerson, whether through an acquisition or stock or assets or\notherwise, or in the sale of any business to Emerson;\n(d) assist any third party in connection with any attempt to assert control over or influence the management of Emerson, whether through the\nacquisition or stock by such third party, addition of board members recommended by such third party, a proxy solicitation by such third party or\notherwise;\n(e) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(f) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with Emerson;\n(g) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or consultant of\nEmerson to leave such employment or separate his or her relationship with Emerson or induce any such person to do anything which you are restricted\nfrom doing by reason of this Agreement; or\n(h) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is listed on any national\nsecurities exchange, traded over-the- counter, or that is otherwise available for investment by the general public as long as you have no relationship with\nthe issuer of such securities or any affiliate thereof, except as an investor.\n4. REASONABLENESS ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of Emerson in light of your\nin-depth knowledge of Emerson’s global business, your present and prior positions with Emerson, and your access to Confidential Information relating\nto all of Emerson’s businesses. You also affirm your agreement to comply with all existing non-competition, invention disclosure and assignment,\nnon-disclosure and non-solicitation obligations you have with Emerson, including specifically your obligations under the Emerson Incentive Shares\nplans and related performance shares and restricted stock award agreements, and Emerson stock option plans and related option agreements, and\nEmerson non-qualified supplemental executive retirement plan participation. You agree that your obligations set forth in this Agreement are in addition\nto and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct conflict, in which case the terms of this\nAgreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to you herein but for the\nrestrictions in this Agreement. You agree that a violation of this Agreement and the other agreements referenced in this Section 4 would result in\nirreparable injury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other remedies to which\nEmerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable attorneys’ fees Emerson incurs to seek\nenforcement of any provision contained herein, whether or not litigation is commenced.\n3\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits provided to you under this\nAgreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of the economic value of all benefits provided to\nyou under this Agreement prior to the date of breach. You agree that this liquidated damage provision and other remedies are necessary because\nsubstantial damage will accrue to Emerson as the result of a breach, and the amount of damages attributable to such breach may be uncertain and\ndifficult to calculate. Payment of liquidated damages shall in no way affect the settlement and release of claims by you, nor shall payment of liquidated\ndamages limit the enforceability of any clause in this Agreement or any other agreement referenced in this Section 4 or the ability of Emerson to seek\ndamages and any other relief from you as provided under applicable law or any agreement between you and Emerson.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective Directors, officers, employees and agents from any and all claims or liability of whatever\nnature and will execute on your Retirement Date the Release Agreement attached hereto as Exhibit A. If the Release Agreement attached as Exhibit A is\nnot executed by you, this Agreement shall be null and void. You also agree that no benefits or other compensation described in this Agreement (other\nthan the payment of your base salary described in Section 8.A. hereof, shall be paid or provided to you until expiration of the seven-day revocation\nperiod set forth in Paragraph 3(e) of the Release Agreement.\n6. RESIGNATIONS\nYou agree to execute the Officer Resignation Form attached hereto as Exhibit B, effective as of October 1, 2018.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson’s Clawback Policy, which provides: “If the Board determines that an executive officer has engaged in\nintentional misconduct that caused or partially caused a material restatement of the Company’s consolidated financial statements, the Board may, to the\nextent permitted by law and to the extent it determines that it is in the Company’s best interests to do so, require reimbursement to the Company of, or\nreduce or cancel, that portion of annual incentive or any long-term incentive compensation paid or credited to such executive officer on or after\nFebruary 1, 2015 that would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term “executive officer” means any officer of the Company who is required to file reports pursuant to\nSection 16 of the Securities Exchange Act of 1934.”\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon your compliance with your obligations and covenants in this Agreement and any other agreement entered into between\nyou and Emerson, you will receive the compensation and benefits outlined below. The compensation and benefits set forth herein are in lieu of and\nreplace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will remain on the Emerson payroll and receive your current base salary through your retirement date.\nB. You will remain eligible to participate in the Fiscal 2018 Emerson Electric Extra Salary Program under the same terms and conditions as\nother participants in the Program. We will recommend to the Compensation Committee that you receive a payment under the Program for Fiscal 2018\nand subject to their approval, payment will be made consistent with prior practices.\n4\nC. You may continue coverage under the former split dollar and group universal life policies owned by you through your retirement date. After\nyour retirement, you may continue coverage under such policies at your own expense, subject to the terms of the underlying policies.\nD. Your executive perquisites, including leased automobile, club dues, executive physical and financial tax planning, will end on the Retirement\nDate, unless noted otherwise below:\nL. You may complete your 2018 calendar year tax return under the executive financial tax planning program, subject to the normal terms and\nconditions of the program.\nii. ~ Under the normal terms and conditions of the program, you will be required to return or purchase at its fair market value, your company\nautomobile within thirty (30) days following your retirement date.\nE. Inaccordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation Committee of the Board of\nDirectors, all of your outstanding options will be exercisable for a period of up to five (5) years after the Retirement Date, but no longer than the original\nexpiration date of the option.\nF. The Compensation Committee has determined that you will remain eligible to receive payment of your outstanding Performance Shares\nawards, subject to the other applicable terms of Emerson’s Incentive Shares Plans and the applicable Performance Shares Program which apply to all\nparticipants, including achievement of the performance objectives under each Program, and based on the actual payout percentage applicable to each\nProgram, and at the time provided therefor under the respective programs, as follows:\nL. You will remain eligible to receive a full payout under the 2016 and 2017 Performance Shares Programs.\nii.  You will remain eligible to receive up to a 50% pro-rata payment under the 2018 Performance Shares Program.\nG. Pursuant to the terms of Emerson’s Incentive Shares Plans, the Compensation Committee has determined that your award of restricted shares\nwill continue to vest as specified in the original award document and be payable to you upon the vesting date of the award (November 1, 2019), and that\nyou will continue to receive dividends on the restricted share award to the extent provided in the original award agreement.\nH. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan, you will be eligible to receive your\nmonthly pension benefits accrued under such plan as of the Retirement Date. Pursuant to the terms and conditions of the related Emerson Electric Co.\nPension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits you would have been eligible to receive\nunder the aforesaid all-employee Retirement Plan were it not for the compensation limitations imposed under the Internal Revenue Code (“Code™)), you\nwill also be eligible to receive your monthly pension benefits accrued as of your Retirement Date under such plan. Payment of your accrued benefits\nunder the non-qualified supplemental executive retirement plan which are not “grandfathered” under Section 409A of the Code shall be deferred to the\nextent required by Code Section 409A. Payments of your pension benefits under each of the aforesaid plans will be paid monthly in the manner and\ntimes set forth in such plans, subject to the terms and conditions of such plans.\n5\nI.  You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k) plan) to the extent\npermitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the Emerson Electric Co. Savings\nInvestment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of the plan and your distribution elections thereunder. Distributions\nfrom these plans which are not “grandfathered” under Section 409A of the Code shall be deferred to the extent required by Code Section 409A.\nJ. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares program payouts,\nvesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to income tax and other withholdings as\nrequired by law.\nK. Except as provided for specifically above, after the Retirement Date you will not be permitted to continue participating in any Emerson\nbenefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the disability insurance program.\nL. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an activity in which you are\nprohibited from engaging hereunder during the Restricted Period, Emerson shall be relieved of all, and shall have no further, obligations to provide the\npayments or benefits specified in this Section 8 (unless otherwise required by law).\nThis Agreement is deemed to be entered in the State of Missouri and, without regard to conflict of laws principles, shall be interpreted in accordance\nwith and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or proceeding with respect to this Agreement shall\nbe brought and determined in the courts of the County of St. Louis, State of Missouri or of the United States of America for the Eastern District of\nMissouri and that you submit to the jurisdiction of such courts with respect to any such action or proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding this Agreement or any\nof the documents referenced in this Agreement, including the Release Agreement.\n6\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below. Once again, I thank you\nfor your many years of dedicated service to Emerson, and I wish you the very best in your retirement.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 2nd\nDAY OF (Month/Year) October 2018\n/s/ Edward L. Monser\nEdward L. Monser\nEXHIBIT A - RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. (“Employer”) and Edward L. Monser\n(“Employee”) dated October 1, 2018 the (“Letter Agreement”). In consideration of the mutual promises and covenants contained in the Letter\nAgreement and herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby\nagree as follows:\n1. Employment. Employee was previously employed by Employer. The employment of Employee with Employer has ended as a result of\nEmployee’s retirement from Employer effective October 1, 2018.\n2. Release. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and this Release Agreement,\nEmployee, for himself and his heirs, to the fullest extent permitted by law, agrees to and does hereby waive, covenant not to sue, releases, and forever\ndischarges Employer, and each and every one of Employer’s parent, subsidiary and other affiliated entities (the “Emerson Entities”), and their respective\nagents, employees, officers, directors, stockholders, managers, members, successors, predecessors, contractors, attorneys, external counsel, agents and\nassigns (collectively referred to as “Released Parties”), from and with respect to all matters, claims, charges, demands, damages, causes of action, debts,\nliabilities, controversies, judgments, and suits of every kind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date\nthis Release Agreement becomes effective and including, but not limited to, those in any way related to Employee and/or Employee’s separation from\nemployment. This release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against Released\nParties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury, wrongful discharge,\nemotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or any other class protected by law),\nharassment, retaliation, claims for workers’ compensation benefits, claims for unpaid wages, any claim under the Age Discrimination in Employment\nAct, 29 U.S.C. §621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. §1981, the\nAmericans With Disabilities Act, 42 U.S.C. §12101, et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C. §1001, et seq., the\nFamily Medical Leave Act, 29 U.S.C. §2601 et seq., the Fair Labor Standards Act of 1938, 29 U.S.C. §201 et seq., the Missouri Human Rights Act, Mo.\nRev. Stat. §213.010 et seq.; the Missouri Equal Pay for Women Act, Mo. Rev. Stat. §290.400 et seq., the Missouri Service Letter statute Mo. Rev. Stat.\n§290.14, the Missouri Minimum Wage Law, Mo. Rev. Stat. §290.010 et seq., the Missouri Wage Payment Law, Mo. Rev. Stat. §290.010 et seq., any\nclaim under common law, and any claim under any federal, state or local statute, regulation, constitution, order or executive order. This release also\nexpressly includes, but is not limited to, any claim for attorneys’ fees or costs. Employee affirms and warrants that he has made no charge, claim,\ncomplaint, or otherwise initiated action against Employer in any government agency, court or other forum and that no such matter is pending. Employee\nfurther affirms and warrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer or director of\nEmployer engaging in any act related to the performance of their duties at or for Employer, which Employee knows or believes to be illegal and\nEmployee acknowledges that he has never complained of any unlawful conduct by Employer. Employee hereby releases and relinquishes any and all\nrights to employment, reinstatement and any right to future employment with Employer or the Emerson Entities. Employee also waives and\nA-1\nreleases any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or\nmulti- party action or proceeding based on a claim in which Employer or any one or more Released Parties is a party. Notwithstanding the foregoing,\nEmployee is not waiving any right to enforce any term or provision of the Letter Agreement, or any claims solely relating to the validity of this Release\nAgreement under the Age Discrimination in Employment Act.\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or claims arising under the\nAge Discrimination in Employment Act of 1967 (“ADEA”) and\n(a) Employee has read this Agreement, and the Letter Agreement, in their entirety and understands all of their terms; and\n(b) Employee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in exchange for the consideration\nprovided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is otherwise entitled; and\n(c) Employee acknowledges that Employer has, and does, hereby expressly advise him to consult with an attorney of his choosing, at his\nown expense, prior to executing this Release Agreement and the Letter Agreement; and\n(d) Employee agrees that he has been given a period of not less than forty- five (45) days from receipt of this document within which to\nconsider this Release Agreement and the Letter Agreement, and that if Employee elects to sign this Release Agreement prior to the expiration of\nthe 45-day consideration period specified herein, he does so knowingly and voluntarily and with full opportunity to consult with an attorney; and\n(e) Employee acknowledges he has been advised by Employer that he is entitled to revoke this Release Agreement (in the event he\nexecutes this Release Agreement) within seven (7) days after executing it and that this Agreement will not and does not become effective or\nenforceable until the seven (7) day revocation period has expired; and\n(f) The parties agree that should Employee exercise his right to revoke the waiver under this paragraph 3, this entire Release Agreement\nand Letter Agreement, and their obligations, are null and void and of no effect and, notwithstanding any other provision of this Release Agreement\nor the Letter Agreement to the contrary, no payment or other consideration shall be due, owing, paid or provided until the seven (7) day revocation\nperiod has expired without revocation by Employee. Notice of Employee’s decision to revoke the waiver may be sent to Emerson’s Senior Vice\nPresident, Secretary and General Counsel by fax (at 314-553-3205), email to sara.bosco@emerson.com or hand-delivery.\n4. Remedies. Without limiting the remedies available to Employer for any breach of this Release Agreement, Employee agrees that any breach\nof either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any future payments to be made to, or benefits to be\nprovided to, Employee and all other remedies and relief as specifically set forth further in the Letter Agreement shall be available to Employer.\n5. Successors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties’ respective heirs, administrators,\nrepresentatives, executors, successors, and assigns.\nA-2\n6. Review by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that Employee was advised of his\nright to review this Release Agreement with an attorney at his expense, and that Employee fully understands the meaning and intent of this Release\nAgreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Edward L. Monser\nEdward L. Monser\nDate: October 2, 2018\nA-3\nEXHIBIT B - OFFICER RESIGNATION\nI, Edward L. Monser, do hereby submit my resignation, effective October 1, 2018, from my position as President of Emerson Electric Co., as well as\nfrom any other positions (if any) I may hold with any subsidiaries or affiliates of Emerson.\n/s/ Edward L. Monser\nEdward L. Monser	EX-10.1 2 d634197dex101.htm EX-10.1\nExhibit 10.1\nDavid N. Farr\nChairman and\nChief Executive Officer\nLOGO\nEmerson\n8000 West Florissant Avenue.\nP.O. Box 4100\nSt. Louis, MO 63136-8506\nUSA\nEdward L. Monser\n8000 West Florissant Ave.\nSt. Louis, MO 63136\nDear Ed:\nOn behalf of the entire Emerson organization, I want to congratulate you on your 37+ years of dedicated service, insights and passion to create a better\nEmerson. Thank you for your significant contributions to the tremendous success of Emerson. Your accomplishments and support of me, the Board of\nDirectors and Emerson shareholders have been extraordinary and very much appreciated. This Letter Agreement ("Agreement") sets out the terms of\nyour retirement, including your resignation as an employee and officer of Emerson Electric Co. Throughout this Agreement, the term "Emerson" means\nEmerson Electric Co. together with any and all other entities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your retirement\nand the terms of this Agreement are effective as of October 1, 2018 ("Retirement Date").\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson's trade secrets and confidential and proprietary information\n("Confidential Information"), which includes or concerns, but is not limited to, attorney/client communications, global strategic communications,\ninformation pertaining to strategic planning or other strategy, mergers and acquisitions, corporate technology, intellectual property, customers, pricing,\nbusiness methods and operations, business policies, procedures, practices and techniques, legal opinions and legal matters, research or development\nprojects or results, sales, finances, products, suppliers, personnel performance and compensation, plans for future development, marketing practices,\nmarket participation, market studies, and financial forecasts and budgeting. You agree that disclosure of such Confidential Information would be\ndetrimental to Emerson and agree that at no time following termination of your employment with Emerson will you directly or indirectly disclose or\ncause the disclosure of any Confidential Information to any person, firm, corporation, or entity, no matter what the purpose. You further agree that you\nwill not directly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing authorities; communicate\nwith your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or agents bind themselves in writing to the\nsame\nnon-disclosure\nobligations\nas\nset\nforth\nabove;\nor,\nto\nrespond\nto\nany\nlawfully\nissued\nsubpoena\nor\norder\nof\na\ncourt\nof\ncompetent\njurisdiction\nor\nlegitimate\ndiscovery request pursuant to state or federal rules of civil procedure. If any such subpoena, order of court or discovery request is received, you agree to\nsend to Emerson's General Counsel no later than two days after receipt via email to sara.bosco@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson's General Counsel within a three day period following the Retirement Date all such Confidential\nInformation, any other property of Emerson, and all copies thereof in your possession or control, whether in handwritten, typed, printed, graphic or\nelectronic form (whether stored on Emerson-owned or personally owned or used devices, including but not limited to personal computers, tablets, smart\nphones, memory sticks, thumb drives, or on-site or off-site storage locations). If after such three-day period you determine that you have any\nConfidential Information or other property of Emerson in your possession or control, you shall immediately deliver such Confidential Information\nor\nproperty to the office of Emerson's General Counsel. You further agree to deliver your signed certification of compliance with the provisions of this\nparagraph promptly upon request made to you in writing by Emerson's General Counsel.\n2. NON-DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment with Emerson,\nyour\nretirement,\nor\nthe\nterms\nof\nthis\nAgreement.\nIf\ninquiry\nis\nmade\nby\nanyone\nregarding\nyour\nemployment\nby,\nor\nretirement\nfrom,\nEmerson,\nyou\nagree\nto\nstate only "I have retired from Emerson effective October 1, 2018. I personally decided to retire, and I have enjoyed my many years with Emerson.\nEmerson is a tremendous company and I wish it well."\nYou also agree that you will not, directly or indirectly, disparage or make or cause to be made, any comments, statements, or communications of any sort\nto anyone-whether true or false- that may reasonably be considered to be derogatory or detrimental to Emerson or any Released Parties (as defined\nin\nthe Release Agreement attached as Exhibit A), their reputations, or their services. You acknowledge that Emerson has a good reputation locally,\nnationally and internationally, and you will take no action or engage in any conduct that could injure or diminish that good reputation.\n3.\nNON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson's Chief Executive Officer and General Counsel, directly or indirectly\nfor a period of five years from your Retirement Date ("Restricted Period"):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in, any person, firm, corporation, or other entity\nengaged in business activities anywhere in the world that directly or indirectly competes with the businesses of Emerson as conducted on the date of this\nAgreement or as contemplated on the date hereof to be developed during the Restricted Period;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other investment vehicle,\nhowever structured, that either directly or indirectly or through portfolio company investments or otherwise competes with the businesses of Emerson as\nconducted on the date hereof or as contemplated on the date hereof to be developed during the Restrictive Period;\n2\n(c) assist any third party in connection with any acquisition of any business of Emerson, whether through an acquisition or stock or assets or\notherwise, or in the sale of any business to Emerson;\n(d) assist any third party in connection with any attempt to assert control over or influence the management of Emerson, whether through the\nacquisition or stock by such third party, addition of board members recommended by such third party, a proxy solicitation by such third party or\notherwise;\n(e) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(f) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with Emerson;\n(g) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or consultant of\nEmerson to leave such employment or separate his or her relationship with Emerson or induce any such person to do anything which you are restricted\nfrom doing by reason of this Agreement; or\n(h) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is listed on any national\nsecurities exchange, traded over-the- counter, or that is otherwise available for investment by the general public as long as you have no relationship with\nthe issuer of such securities or any affiliate thereof, except as an investor.\n4. REASONABLENESS ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of Emerson in light\nof\nyour\nin-depth knowledge of Emerson's global business, your present and prior positions with Emerson, and your access to Confidential Information relating\nto all of Emerson's businesses. You also affirm your agreement to comply with all existing non-competition, invention disclosure and assignment,\nnon-disclosure and non-solicitation obligations you have with Emerson, including specifically your obligations under the Emerson Incentive Shares\nplans and related performance shares and restricted stock award agreements, and Emerson stock option plans and related option agreements, and\nEmerson non-qualified supplemental executive retirement plan participation. You agree that your obligations set forth in this Agreement are in addition\nto and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct conflict, in which case the terms of this\nAgreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to you herein but for the\nrestrictions in this Agreement. You agree that a violation of this Agreement and the other agreements referenced in this Section 4 would result in\nirreparable injury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other remedies to which\nEmerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable attorneys' fees Emerson incurs to seek\nenforcement of any provision contained herein, whether or not litigation is commenced.\n3\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits provided to you under\nthis\nAgreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of the economic value of all benefits provided to\nyou under this Agreement prior to the date of breach. You agree that this liquidated damage provision and other remedies are necessary because\nsubstantial damage will accrue to Emerson as the result of a breach, and the amount of damages attributable to such breach may be uncertain and\ndifficult to calculate. Payment of liquidated damages shall in no way affect the settlement and release of claims by you, nor shall payment of liquidated\ndamages limit the enforceability of any clause in this Agreement or any other agreement referenced in this Section 4 or the ability of Emerson to seek\ndamages and any other relief from you as provided under applicable law or any agreement between you and Emerson.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective Directors, officers, employees and agents from any and all claims or liability of whatever\nnature\nand\nwill execute on your Retirement Date the Release Agreement attached hereto as Exhibit A. If the Release Agreement attached as Exhibit\nA\nis\nnot executed by you, this Agreement shall be null and void. You also agree that no benefits or other compensation described in this Agreement (other\nthan the payment of your base salary described in Section 8.A. hereof, shall be paid or provided to you until expiration of the seven-day revocation\nperiod set forth in Paragraph 3(e) of the Release Agreement.\n6. RESIGNATIONS\nYou agree to execute the Officer Resignation Form attached hereto as Exhibit B, effective as of October 1, 2018.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson's Clawback Policy, which provides: "If the Board determines that an executive officer has engaged\nin\nintentional misconduct that caused or partially caused a material restatement of the Company's consolidated financial statements, the Board\nmay,\nto\nthe\nextent permitted by law and to the extent it determines that it is in the Company's best interests to do so, require reimbursement to the Company of, or\nreduce or cancel, that portion of annual incentive or any long-term incentive compensation paid or credited to such executive officer on or after\nFebruary 1, 2015 that would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term "executive officer" means any officer of the Company who is required to file reports pursuant\nto\nSection 16 of the Securities Exchange Act of 1934."\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon your compliance with your obligations and covenants in this Agreement and any other agreement entered into between\nyou and Emerson, you will receive the compensation and benefits outlined below. The compensation and benefits set forth herein are in lieu of and\nreplace any other compensation or benefits to which you may be entitled from Emerson:\nA.\nYou will remain on the Emerson payroll and receive your current base salary through your retirement date.\nB.\nYou will remain eligible to participate in the Fiscal 2018 Emerson Electric Extra Salary Program under the same terms and conditions as\nother participants in the Program. We will recommend to the Compensation Committee that you receive a payment under the Program for Fiscal 2018\nand subject to their approval, payment will be made consistent with prior practices.\n4\nC. You may continue coverage under the former split dollar and group universal life policies owned by you through your retirement date. After\nyour retirement, you may continue coverage under such policies at your own expense, subject to the terms of the underlying policies.\nD. Your executive perquisites, including leased automobile, club dues, executive physical and financial tax planning, will end on the Retirement\nDate, unless noted otherwise below:\ni.\nYou may complete your 2018 calendar year tax return under the executive financial tax planning program, subject to the normal terms and\nconditions of the program.\nii.\nUnder the normal terms and conditions of the program, you will be required to return or purchase at its fair market value, your company\nautomobile within thirty (30) days following your retirement date.\nE. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation Committee of the Board of\nDirectors, all of your outstanding options will be exercisable for a period of up to five (5) years after the Retirement Date, but no longer than the original\nexpiration date of the option.\nF. The Compensation Committee has determined that you will remain eligible to receive payment of your outstanding Performance Shares\nawards, subject to the other applicable terms of Emerson's Incentive Shares Plans and the applicable Performance Shares Program which apply to all\nparticipants, including achievement of the performance objectives under each Program, and based on the actual payout percentage applicable to each\nProgram, and at the time provided therefor under the respective programs, as follows:\ni.\nYou will remain eligible to receive a full payout under the 2016 and 2017 Performance Shares Programs.\nii.\nYou will remain eligible to receive up to a 50% pro-rata payment under the 2018 Performance Shares Program.\nG. Pursuant to the terms of Emerson's Incentive Shares Plans, the Compensation Committee has determined that your award of restricted shares\nwill continue to vest as specified in the original award document and be payable to you upon the vesting date of the award (November 1, 2019), and that\nyou will continue to receive dividends on the restricted share award to the extent provided in the original award agreement.\nH. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan, you will be eligible to receive your\nmonthly pension benefits accrued under such plan as of the Retirement Date. Pursuant to the terms and conditions of the related Emerson Electric Co.\nPension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits you would have been eligible to receive\nunder the aforesaid all-employee Retirement Plan were it not for the compensation limitations imposed under the Internal Revenue Code ("Code")), you\nwill also be eligible to receive your monthly pension benefits accrued as of your Retirement Date under such plan. Payment of your accrued benefits\nunder the non-qualified supplemental executive retirement plan which are not "grandfathered" under Section 409A of the Code shall be deferred to the\nextent required by Code Section 409A. Payments of your pension benefits under each of the aforesaid plans will be paid monthly in the manner and\ntimes set forth in such plans, subject to the terms and conditions of such plans.\n5\nI. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k) plan) to the extent\npermitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the Emerson Electric Co. Savings\nInvestment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of the plan and your distribution elections thereunder. Distributions\nfrom these plans which are not "grandfathered" under Section 409A of the Code shall be deferred to the extent required by Code Section 409A.\nJ. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares program payouts,\nvesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to income tax and other withholdings as\nrequired by law.\nK. Except as provided for specifically above, after the Retirement Date you will not be permitted to continue participating in any Emerson\nbenefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the disability insurance program.\nL. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an activity in which you are\nprohibited from engaging hereunder during the Restricted Period, Emerson shall be relieved of all, and shall have no further, obligations to provide the\npayments or benefits specified in this Section 8 (unless otherwise required by law).\nThis Agreement is deemed to be entered in the State of Missouri and, without regard to conflict of laws principles, shall be interpreted in accordance\nwith and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or proceeding with respect to this Agreement\nshall\nbe brought and determined in the courts of the County of St. Louis, State of Missouri or of the United States of America for the Eastern District\nof\nMissouri and that you submit to the jurisdiction of such courts with respect to any such action or proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding this Agreement or any\nof the documents referenced in this Agreement, including the Release Agreement.\n6\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below. Once again, I thank you\nfor your many years of dedicated service to Emerson, and I wish you the very best in your retirement.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 2nd\nDAY OF (Month/Year) October 2018\n/s/ Edward L. Monser\nEdward L. Monser\n7\nEXHIBIT A - RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. ("Employer") and Edward L. Monser\n("Employee") dated October 1, 2018 the ("Letter Agreement"). In consideration of the mutual promises and covenants contained in the Letter\nAgreement and herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby\nagree as follows:\n1. Employment. Employee was previously employed by Employer. The employment of Employee with Employer has ended as a result of\nEmployee's retirement from Employer effective October 1, 2018.\n2. Release. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and this Release Agreement,\nEmployee, for himself and his heirs, to the fullest extent permitted by law, agrees to and does hereby waive, covenant not to sue, releases, and\nforever\ndischarges Employer, and each and every one of Employer's parent, subsidiary and other affiliated entities (the "Emerson Entities"), and their respective\nagents, employees, officers, directors, stockholders, managers, members, successors, predecessors, contractors, attorneys, external counsel, agents and\nassigns\n(collectively\nreferred\nto\nas\n"Released\nParties"),\nfrom\nand\nwith\nrespect\nto\nall\nmatters,\nclaims,\ncharges,\ndemands,\ndamages,\ncauses\nof\naction,\ndebts,\nliabilities, controversies, judgments, and suits of every kind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date\nthis Release Agreement becomes effective and including, but not limited to, those in any way related to Employee and/or Employee's separation from\nemployment. This release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against Released\nParties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury, wrongful discharge,\nemotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or any other class protected by law),\nharassment, retaliation, claims for workers' compensation benefits, claims for unpaid wages, any claim under the Age Discrimination in Employment\nAct, 29 U.S.C. 8621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. 82000e et seq., the Civil Rights Act of 1866, 42 U.S.C. 1981, the\nAmericans With Disabilities Act, 42 U.S.C. 812101, et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C. 81001, et seq., the\nFamily Medical Leave Act, 29 U.S.C. $2601 et seq., the Fair Labor Standards Act of 1938, 29 U.S.C. 8201 et seq., the Missouri Human Rights\nAct,\nMo.\nRev. Stat. 8213.010 et seq.; the Missouri Equal Pay for Women Act, Mo. Rev. Stat. 8290.400 et seq., the Missouri Service Letter statute Mo. Rev. Stat.\n$290.14, the Missouri Minimum Wage Law, Mo. Rev. Stat. 8290.010 et seq., the Missouri Wage Payment Law, Mo. Rev. Stat. $290.010 et seq., any\nclaim under common law, and any claim under any federal, state or local statute, regulation, constitution, order or executive order. This release also\nexpressly includes, but is not limited to, any claim for attorneys' fees or costs. Employee affirms and warrants that he has made no charge, claim,\ncomplaint, or otherwise initiated action against Employer in any government agency, court or other forum and that no such matter is pending. Employee\nfurther\naffirms and warrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer or director of\nEmployer engaging in any act related to the performance of their duties at or for Employer, which Employee knows or believes to be illegal and\nEmployee acknowledges that he has never complained of any unlawful conduct by Employer. Employee hereby releases and relinquishes any and all\nrights to employment, reinstatement and any right to future employment with Employer or the Emerson Entities. Employee also waives and\nA-1\nreleases any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective\nor\nmulti- party action or proceeding based on a claim in which Employer or any one or more Released Parties is a party. Notwithstanding the foregoing,\nEmployee is not waiving any right to enforce any term or provision of the Letter Agreement, or any claims solely relating to the validity of this Release\nAgreement under the Age Discrimination in Employment Act.\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or claims arising under the\nAge Discrimination in Employment Act of 1967 ("ADEA") and\n(a) Employee has read this Agreement, and the Letter Agreement, in their entirety and understands all of their terms; and\n(b) Employee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in exchange for the consideration\nprovided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is otherwise entitled; and\n(c) Employee acknowledges that Employer has, and does, hereby expressly advise him to consult with an attorney of his choosing, at his\nown expense, prior to executing this Release Agreement and the Letter Agreement; and\n(d) Employee agrees that he has been given a period of not less than forty- five (45) days from receipt of this document within which to\nconsider this Release Agreement and the Letter Agreement, and that if Employee elects to sign this Release Agreement prior to the expiration of\nthe 45-day consideration period specified herein, he does so knowingly and voluntarily and with full opportunity to consult with an attorney; and\n(e) Employee acknowledges he has been advised by Employer that he is entitled to revoke this Release Agreement (in the event he\nexecutes this Release Agreement) within seven (7) days after executing it and that this Agreement will not and does not become effective or\nenforceable until the seven (7) day revocation period has expired; and\n(f) The parties agree that should Employee exercise his right to revoke the waiver under this paragraph 3, this entire Release Agreement\nand Letter Agreement, and their obligations, are null and void and of no effect and, notwithstanding any other provision of this Release Agreement\nor the Letter Agreement to the contrary, no payment or other consideration shall be due, owing, paid or provided until the seven (7) day revocation\nperiod has expired without revocation by Employee. Notice of Employee's decision to revoke the waiver may be sent to Emerson's Senior Vice\nPresident, Secretary and General Counsel by fax (at 314-553-3205), email to sara.bosco@emerson.com or hand-delivery.\n4. Remedies. Without limiting the remedies available to Employer for any breach of this Release Agreement, Employee agrees that any breach\nof either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any future payments to be made to, or benefits to be\nprovided to, Employee and all other remedies and relief as specifically set forth further in the Letter Agreement shall be available to Employer.\n5. Successors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties' respective heirs, administrators,\nrepresentatives, executors, successors, and assigns.\nA-2\n6.\nReview by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that Employee was advised of his\nright to review this Release Agreement with an attorney at his expense, and that Employee fully understands the meaning and intent of this Release\nAgreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Edward L. Monser\nEdward L. Monser\nDate: October 2, 2018\nA-3\nEXHIBIT B - OFFICER RESIGNATION\nI, Edward L. Monser, do hereby submit my resignation, effective October 1, 2018, from my position as President of Emerson Electric Co., as well as\nfrom any other positions (if any) I may hold with any subsidiaries or affiliates of Emerson.\n/s/ Edward L. Monser\nEdward L. Monser	EX-10.1 2 d634197dex101.htm EX-10.1\nExhibit 10.1\nLOGO\nDavid N. Farr\nChairman and\nChief Executive Officer\nEmerson\n8000 West Florissant Avenue.\nP.O . Box 4100\nSt. Louis, MO 63136-8506\nUSA\nEdward L. Monser\n8000 West Florissant Ave.\nSt. Louis, MO 63136\nDear Ed:\nOn behalf of the entire Emerson organization, I want to congratulate you on your 37+ years of dedicated service, insights and passion to create a better\nEmerson. Thank you for your significant contributions to the tremendous success of Emerson. Your accomplishments and support of me, the Board of\nDirectors and Emerson shareholders have been extraordinary and very much appreciated. This Letter Agreement (“Agreement”) sets out the terms of\nyour retirement, including your resignation as an employee and officer of Emerson Electric Co. Throughout this Agreement, the term “Emerson” means\nEmerson Electric Co. together with any and all other entities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your retirement\nand the terms of this Agreement are effective as of October 1, 2018 (“Retirement Date”).\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson’s trade secrets and confidential and proprietary information\n(“Confidential Information”), which includes or concerns, but is not limited to, attorney/client communications, global strategic communications,\ninformation pertaining to strategic planning or other strategy, mergers and acquisitions, corporate technology, intellectual property, customers, pricing,\nbusiness methods and operations, business policies, procedures, practices and techniques, legal opinions and legal matters, research or development\nprojects or results, sales, finances, products, suppliers, personnel performance and compensation, plans for future development, marketing practices,\nmarket participation, market studies, and financial forecasts and budgeting. You agree that disclosure of such Confidential Information would be\ndetrimental to Emerson and agree that at no time following termination of your employment with Emerson will you directly or indirectly disclose or\ncause the disclosure of any Confidential Information to any person, firm, corporation, or entity, no matter what the purpose. You further agree that you\nwill not directly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing authorities; communicate\nwith your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or agents bind themselves in writing to the same\nnon-disclosure obligations as set forth above; or, to respond to any lawfully issued subpoena or order of a court of competent jurisdiction or legitimate\ndiscovery request pursuant to state or federal rules of civil procedure. If any such subpoena, order of court or discovery request is received, you agree to\nsend to Emerson’s General Counsel no later than two days after receipt via email to sara.bosco@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson’s General Counsel within a three day period following the Retirement Date all such Confidential\nInformation, any other property of Emerson, and all copies thereof in your possession or control, whether in handwritten, typed, printed, graphic or\nelectronic form (whether stored on Emerson-owned or personally owned or used devices, including but not limited to personal computers, tablets, smart\nphones, memory sticks, thumb drives, or on-site or off-site storage locations). If after such three-day period you determine that you have any\nConfidential Information or other property of Emerson in your possession or control, you shall immediately deliver such Confidential Information or\nproperty to the office of Emerson’s General Counsel. You further agree to deliver your signed certification of compliance with the provisions of this\nparagraph promptly upon request made to you in writing by Emerson’s General Counsel.\n2. NON-DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment with Emerson,\nyour retirement, or the terms of this Agreement. If inquiry is made by anyone regarding your employment by, or retirement from, Emerson, you agree to\nstate only “I have retired from Emerson effective October 1, 2018. I personally decided to retire, and I have enjoyed my many years with Emerson.\nEmerson is a tremendous company and I wish it well.”\nYou also agree that you will not, directly or indirectly, disparage or make or cause to be made, any comments, statements, or communications of any sort\nto anyone—whether true or false— that may reasonably be considered to be derogatory or detrimental to Emerson or any Released Parties (as defined in\nthe Release Agreement attached as Exhibit A), their reputations, or their services. You acknowledge that Emerson has a good reputation locally,\nnationally and internationally, and you will take no action or engage in any conduct that could injure or diminish that good reputation.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson’s Chief Executive Officer and General Counsel, directly or indirectly\nfor a period of five years from your Retirement Date (“Restricted Period”):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in, any person, firm, corporation, or other entity\nengaged in business activities anywhere in the world that directly or indirectly competes with the businesses of Emerson as conducted on the date of this\nAgreement or as contemplated on the date hereof to be developed during the Restricted Period;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other investment vehicle,\nhowever structured, that either directly or indirectly or through portfolio company investments or otherwise competes with the businesses of Emerson as\nconducted on the date hereof or as contemplated on the date hereof to be developed during the Restrictive Period;\n2\n(c) assist any third party in connection with any acquisition of any business of Emerson, whether through an acquisition or stock or assets or\notherwise, or in the sale of any business to Emerson;\n(d) assist any third party in connection with any attempt to assert control over or influence the management of Emerson, whether through the\nacquisition or stock by such third party, addition of board members recommended by such third party, a proxy solicitation by such third party or\notherwise;\n(e) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(f) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with Emerson;\n(g) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or consultant of\nEmerson to leave such employment or separate his or her relationship with Emerson or induce any such person to do anything which you are restricted\nfrom doing by reason of this Agreement; or\n(h) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is listed on any national\nsecurities exchange, traded over-the- counter, or that is otherwise available for investment by the general public as long as you have no relationship with\nthe issuer of such securities or any affiliate thereof, except as an investor.\n4. REASONABLENESS ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of Emerson in light of your\nin-depth knowledge of Emerson’s global business, your present and prior positions with Emerson, and your access to Confidential Information relating\nto all of Emerson’s businesses. You also affirm your agreement to comply with all existing non-competition, invention disclosure and assignment,\nnon-disclosure and non-solicitation obligations you have with Emerson, including specifically your obligations under the Emerson Incentive Shares\nplans and related performance shares and restricted stock award agreements, and Emerson stock option plans and related option agreements, and\nEmerson non-qualified supplemental executive retirement plan participation. You agree that your obligations set forth in this Agreement are in addition\nto and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct conflict, in which case the terms of this\nAgreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to you herein but for the\nrestrictions in this Agreement. You agree that a violation of this Agreement and the other agreements referenced in this Section 4 would result in\nirreparable injury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other remedies to which\nEmerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable attorneys’ fees Emerson incurs to seek\nenforcement of any provision contained herein, whether or not litigation is commenced.\n3\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits provided to you under this\nAgreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of the economic value of all benefits provided to\nyou under this Agreement prior to the date of breach. You agree that this liquidated damage provision and other remedies are necessary because\nsubstantial damage will accrue to Emerson as the result of a breach, and the amount of damages attributable to such breach may be uncertain and\ndifficult to calculate. Payment of liquidated damages shall in no way affect the settlement and release of claims by you, nor shall payment of liquidated\ndamages limit the enforceability of any clause in this Agreement or any other agreement referenced in this Section 4 or the ability of Emerson to seek\ndamages and any other relief from you as provided under applicable law or any agreement between you and Emerson.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective Directors, officers, employees and agents from any and all claims or liability of whatever\nnature and will execute on your Retirement Date the Release Agreement attached hereto as Exhibit A. If the Release Agreement attached as Exhibit A is\nnot executed by you, this Agreement shall be null and void. You also agree that no benefits or other compensation described in this Agreement (other\nthan the payment of your base salary described in Section 8.A . hereof, shall be paid or provided to you until expiration of the seven-day revocation\nperiod set forth in Paragraph 3(e) of the Release Agreement.\n6. RESIGNATIONS\nYou agree to execute the Officer Resignation Form attached hereto as Exhibit B, effective as of October 1, 2018.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson’s Clawback Policy, which provides: “If the Board determines that an executive officer has engaged in\nintentional misconduct that caused or partially caused a material restatement of the Company’s consolidated financial statements, the Board may, to the\nextent permitted by law and to the extent it determines that it is in the Company’s best interests to do so, require reimbursement to the Company of, or\nreduce or cancel, that portion of annual incentive or any long-term incentive compensation paid or credited to such executive officer on or after\nFebruary 1, 2015 that would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term “executive officer” means any officer of the Company who is required to file reports pursuant to\nSection 16 of the Securities Exchange Act of 1934.”\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon your compliance with your obligations and covenants in this Agreement and any other agreement entered into between\nyou and Emerson, you will receive the compensation and benefits outlined below. The compensation and benefits set forth herein are in lieu of and\nreplace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will remain on the Emerson payroll and receive your current base salary through your retirement date.\nB. You will remain eligible to participate in the Fiscal 2018 Emerson Electric Extra Salary Program under the same terms and conditions as\nother participants in the Program. We will recommend to the Compensation Committee that you receive a payment under the Program for Fiscal 2018\nand subject to their approval, payment will be made consistent with prior practices.\n4\nC. You may continue coverage under the former split dollar and group universal life policies owned by you through your retirement date. After\nyour retirement, you may continue coverage under such policies at your own expense, subject to the terms of the underlying policies.\nD. Your executive perquisites, including leased automobile, club dues, executive physical and financial tax planning, will end on the Retirement\nDate, unless noted otherwise below:\ni. You may complete your 2018 calendar year tax return under the executive financial tax planning program, subject to the normal terms and\nconditions of the program.\nii. Under the normal terms and conditions of the program, you will be required to return or purchase at its fair market value, your company\nautomobile within thirty (30) days following your retirement date.\nE. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation Committee of the Board of\nDirectors, all of your outstanding options will be exercisable for a period of up to five (5) years after the Retirement Date, but no longer than the original\nexpiration date of the option.\nF. The Compensation Committee has determined that you will remain eligible to receive payment of your outstanding Performance Shares\nawards, subject to the other applicable terms of Emerson’s Incentive Shares Plans and the applicable Performance Shares Program which apply to all\nparticipants, including achievement of the performance objectives under each Program, and based on the actual payout percentage applicable to each\nProgram, and at the time provided therefor under the respective programs, as follows:\ni. You will remain eligible to receive a full payout under the 2016 and 2017 Performance Shares Programs.\nii. You will remain eligible to receive up to a 50% pro-rata payment under the 2018 Performance Shares Program.\nG. Pursuant to the terms of Emerson’s Incentive Shares Plans, the Compensation Committee has determined that your award of restricted shares\nwill continue to vest as specified in the original award document and be payable to you upon the vesting date of the award (November 1, 2019), and that\nyou will continue to receive dividends on the restricted share award to the extent provided in the original award agreement.\nH. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan, you will be eligible to receive your\nmonthly pension benefits accrued under such plan as of the Retirement Date. Pursuant to the terms and conditions of the related Emerson Electric Co.\nPension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits you would have been eligible to receive\nunder the aforesaid all-employee Retirement Plan were it not for the compensation limitations imposed under the Internal Revenue Code (“Code”)), you\nwill also be eligible to receive your monthly pension benefits accrued as of your Retirement Date under such plan. Payment of your accrued benefits\nunder the non-qualified supplemental executive retirement plan which are not “grandfathered” under Section 409A of the Code shall be deferred to the\nextent required by Code Section 409A. Payments of your pension benefits under each of the aforesaid plans will be paid monthly in the manner and\ntimes set forth in such plans, subject to the terms and conditions of such plans.\n5\nI. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k) plan) to the extent\npermitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the Emerson Electric Co. Savings\nInvestment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of the plan and your distribution elections thereunder. Distributions\nfrom these plans which are not “grandfathered” under Section 409A of the Code shall be deferred to the extent required by Code Section 409A.\nJ. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares program payouts,\nvesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to income tax and other withholdings as\nrequired by law.\nK. Except as provided for specifically above, after the Retirement Date you will not be permitted to continue participating in any Emerson\nbenefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the disability insurance program.\nL. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an activity in which you are\nprohibited from engaging hereunder during the Restricted Period, Emerson shall be relieved of all, and shall have no further, obligations to provide the\npayments or benefits specified in this Section 8 (unless otherwise required by law).\nThis Agreement is deemed to be entered in the State of Missouri and, without regard to conflict of laws principles, shall be interpreted in accordance\nwith and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or proceeding with respect to this Agreement shall\nbe brought and determined in the courts of the County of St. Louis, State of Missouri or of the United States of America for the Eastern District of\nMissouri and that you submit to the jurisdiction of such courts with respect to any such action or proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding this Agreement or any\nof the documents referenced in this Agreement, including the Release Agreement.\n6\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below. Once again, I thank you\nfor your many years of dedicated service to Emerson, and I wish you the very best in your retirement.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 2nd\nDAY OF (Month/Year) October 2018\n/s/ Edward L. Monser\nEdward L. Monser\n7\nEXHIBIT A – RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. (“Employer”) and Edward L. Monser\n(“Employee”) dated October 1, 2018 the (“Letter Agreement”). In consideration of the mutual promises and covenants contained in the Letter\nAgreement and herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby\nagree as follows:\n1. Employment. Employee was previously employed by Employer. The employment of Employee with Employer has ended as a result of\nEmployee’s retirement from Employer effective October 1, 2018.\n2. Release. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and this Release Agreement,\nEmployee, for himself and his heirs, to the fullest extent permitted by law, agrees to and does hereby waive, covenant not to sue, releases, and forever\ndischarges Employer, and each and every one of Employer’s parent, subsidiary and other affiliated entities (the “Emerson Entities”), and their respective\nagents, employees, officers, directors, stockholders, managers, members, successors, predecessors, contractors, attorneys, external counsel, agents and\nassigns (collectively referred to as “Released Parties”), from and with respect to all matters, claims, charges, demands, damages, causes of action, debts,\nliabilities, controversies, judgments, and suits of every kind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date\nthis Release Agreement becomes effective and including, but not limited to, those in any way related to Employee and/or Employee’s separation from\nemployment. This release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against Released\nParties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury, wrongful discharge,\nemotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or any other class protected by law),\nharassment, retaliation, claims for workers’ compensation benefits, claims for unpaid wages, any claim under the Age Discrimination in Employment\nAct, 29 U.S.C . §621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C . §2000e et seq., the Civil Rights Act of 1866, 42 U.S.C . §1981, the\nAmericans With Disabilities Act, 42 U.S.C . §12101, et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C . §1001, et seq., the\nFamily Medical Leave Act, 29 U.S.C . §2601 et seq., the Fair Labor Standards Act of 1938, 29 U.S.C . §201 et seq., the Missouri Human Rights Act, Mo.\nRev. Stat. §213.010 et seq.; the Missouri Equal Pay for Women Act, Mo. Rev. Stat. §290.400 et seq., the Missouri Service Letter statute Mo. Rev. Stat.\n§290.14, the Missouri Minimum Wage Law, Mo. Rev. Stat. §290.010 et seq., the Missouri Wage Payment Law, Mo. Rev. Stat. §290.010 et seq., any\nclaim under common law, and any claim under any federal, state or local statute, regulation, constitution, order or executive order. This release also\nexpressly includes, but is not limited to, any claim for attorneys’ fees or costs. Employee affirms and warrants that he has made no charge, claim,\ncomplaint, or otherwise initiated action against Employer in any government agency, court or other forum and that no such matter is pending. Employee\nfurther affirms and warrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer or director of\nEmployer engaging in any act related to the performance of their duties at or for Employer, which Employee knows or believes to be illegal and\nEmployee acknowledges that he has never complained of any unlawful conduct by Employer. Employee hereby releases and relinquishes any and all\nrights to employment, reinstatement and any right to future employment with Employer or the Emerson Entities. Employee also waives and\nA-1\nreleases any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or\nmulti- party action or proceeding based on a claim in which Employer or any one or more Released Parties is a party. Notwithstanding the foregoing,\nEmployee is not waiving any right to enforce any term or provision of the Letter Agreement, or any claims solely relating to the validity of this Release\nAgreement under the Age Discrimination in Employment Act.\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or claims arising under the\nAge Discrimination in Employment Act of 1967 (“ADEA”) and\n(a) Employee has read this Agreement, and the Letter Agreement, in their entirety and understands all of their terms; and\n(b) Employee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in exchange for the consideration\nprovided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is otherwise entitled; and\n(c) Employee acknowledges that Employer has, and does, hereby expressly advise him to consult with an attorney of his choosing, at his\nown expense, prior to executing this Release Agreement and the Letter Agreement; and\n(d) Employee agrees that he has been given a period of not less than forty- five (45) days from receipt of this document within which to\nconsider this Release Agreement and the Letter Agreement, and that if Employee elects to sign this Release Agreement prior to the expiration of\nthe 45-day consideration period specified herein, he does so knowingly and voluntarily and with full opportunity to consult with an attorney; and\n(e) Employee acknowledges he has been advised by Employer that he is entitled to revoke this Release Agreement (in the event he\nexecutes this Release Agreement) within seven (7) days after executing it and that this Agreement will not and does not become effective or\nenforceable until the seven (7) day revocation period has expired; and\n(f) The parties agree that should Employee exercise his right to revoke the waiver under this paragraph 3, this entire Release Agreement\nand Letter Agreement, and their obligations, are null and void and of no effect and, notwithstanding any other provision of this Release Agreement\nor the Letter Agreement to the contrary, no payment or other consideration shall be due, owing, paid or provided until the seven (7) day revocation\nperiod has expired without revocation by Employee. Notice of Employee’s decision to revoke the waiver may be sent to Emerson’s Senior Vice\nPresident, Secretary and General Counsel by fax (at 314-553-3205), email to sara.bosco@emerson.com or hand-delivery.\n4. Remedies. Without limiting the remedies available to Employer for any breach of this Release Agreement, Employee agrees that any breach\nof either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any future payments to be made to, or benefits to be\nprovided to, Employee and all other remedies and relief as specifically set forth further in the Letter Agreement shall be available to Employer.\n5. Successors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties’ respective heirs, administrators,\nrepresentatives, executors, successors, and assigns.\nA-2\n6. Review by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that Employee was advised of his\nright to review this Release Agreement with an attorney at his expense, and that Employee fully understands the meaning and intent of this Release\nAgreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Edward L. Monser\nEdward L. Monser\nDate: October 2, 2018\nA-3\nEXHIBIT B - OFFICER RESIGNATION\nI, Edward L. Monser, do hereby submit my resignation, effective October 1, 2018, from my position as President of Emerson Electric Co., as well as\nfrom any other positions (if any) I may hold with any subsidiaries or affiliates of Emerson.\n/s/ Edward L. Monser\nEdward L. Monser
a3ba9b969b390ce8ec0f62dde48f5a1f.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 3 dex99e2.htm AMENDED & RESTATED CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nAMENDED AND RESTATED\nCONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement (this “Agreement”) dated May 22, 2007 (the “Effective Date”), is entered into by and\namong QIAGEN N.V. a corporation formed under the laws of The Netherlands (“QIAGEN”), with offices at Spoorstraat 50, 5911 KJ Venlo, The\nNetherlands, and Digene Corporation, a Delaware corporation (“Digene”), with offices at 1201 Clopper Road, Gaithersburg, MD 20878, and amends\nand restates that certain Confidentiality Agreement entered into by and among QIAGEN and Digene on May 7, 2007.\nQIAGEN, on behalf of itself and its subsidiaries, and Digene, on behalf of itself and its subsidiaries (the “Parties”) intend to explore a possible\nnegotiated transaction, and in connection therewith each Party expects to make available certain financial, operating and business information about\nitself to the other Party. In this Agreement, the Party disclosing Evaluation Material (as defined below) is referred to as the “Disclosing Party” and\nthe Party receiving Evaluation Material is referred to as the “Recipient.” As a condition to the Disclosing Party furnishing such information to the\nRecipient and subsidiaries and their respective directors, officers, employees, agents or advisors (including, without limitation, affiliates, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), the Recipient agrees to treat all Evaluation Material in\naccordance with the provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth.\nThe term “Evaluation Material” shall mean all information relating, directly or indirectly, to the Disclosing Party or the business, products and\nservices, technologies, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the\nDisclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise), which is delivered, disclosed or furnished by or on behalf of\nthe Disclosing Party to the Recipient or its Representatives for purposes of the Recipient considering the possible transaction the subject of this\nAgreement, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished or which the Recipient or its\nRepresentatives otherwise learn or obtain, through observation or through analysis of such information, and shall also be deemed to include all notes,\nanalyses, compilations, studies, forecasts, projects, interpretations or other documents prepared by the Recipient or its Representatives which\ncontain, reflect or are based upon, in whole or in part, any such information. The term “documents” shall include, without limitation, any writing,\nletter, memorandum (internal or otherwise), telex, cable, facsimile, tape, disk drive, diskette, CD-ROM, e-mail transmission or other recording or\nmemoralization, chart, graph, blueprint, picture or financial statements or data. The term Evaluation Material does not include information which the\nRecipient can demonstrate (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its\nRepresentatives in breach of the terms hereof, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf\nof the Disclosing Party pursuant hereto; provided that the source of such information was not known by the Recipient to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with\nrespect to such information, or (iii) becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or\nany of its Representatives; provided that such source is not known by the Recipient to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information.\nThe Recipient and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated transaction\nbetween the Parties, shall keep the Evaluation Material confidential and shall not disclose any of the Evaluation Material in any manner whatsoever;\nprovided,\nhowever, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any\nof such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of evaluating a\npossible negotiated transaction between the Parties and who agree to keep such information confidential and agree to be bound by the terms hereof\nto the same extent as if they were parties hereto (which agreement need not be in writing). In any event, the Recipient shall be responsible for any\nbreach of this Agreement by any of its Representatives, and the Recipient agrees, at its sole expense, to take all reasonable measures (including but\nnot limited to court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material.\nWithout the prior written consent of the Disclosing Party, the Recipient and its Representatives will not disclose to any other person the\nexistence of this Agreement, the fact that the Evaluation Material has been made available to the Recipient, or the fact that discussions or\nnegotiations are taking place concerning a possible transaction involving the Parties or any of the terms, conditions or other facts with respect thereto\n(including the status thereof); provided that the Recipient may make such disclosure if it has received the advice of its counsel that such disclosure\nmust be made by the Recipient in order that it not commit a violation of any law; and provided, further, that the Recipient has given the Disclosing\nParty prompt prior written notice of the Recipient’s intent to make such disclosure and cooperated with the Disclosing Party if it attempts to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded to such disclosure. The term “person” as used\nin this Agreement shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group, limited liability\ncompany other entity or individual.\nIn the event that a Party decides not to proceed with the possible transaction with the other Party, it will promptly inform the other Party of that\ndecision. In that event, or at any time upon the Disclosing Party’s request, the Recipient shall promptly return to the Disclosing Party all Evaluation\nMaterial, including all written or otherwise tangible material containing or reflecting any information contained in the Evaluation Material (whether\nprepared by the Disclosing Party, its Representatives or otherwise), and will not retain any copies, extracts or other reproductions in whole or in part\nof such material. All documents, memoranda, notes and other writing whatsoever prepared by the Recipient or its Representatives based on the\ninformation contained in the Evaluation Material shall be destroyed. The Recipient shall certify such destruction to the Disclosing Party by providing\na certificate signed by an officer of the Recipient confirming destruction of materials as contemplated by this paragraph.\nThe Recipient understands and acknowledges that any and all information contained in the Evaluation Material is being provided without any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Neither the Disclosing Party nor any of\nits Representatives shall have any liability to the Recipient or any of its Representatives from the use of the Evaluation Material or any errors therein\nor omissions therefrom. It is understood that the scope of any representations and warranties to be given by each Party will be negotiated along with\nother terms and conditions in arriving at a mutually acceptable form of definitive agreement should discussions between the Parties progress to such\na point.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is the Parties’ desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection\n2\nunder the attorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine.\nEach Party hereby acknowledges that it is aware (and that its Representatives who are apprised of this matter have been or will be advised) that\nthe United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling\nsecurities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such person is likely to purchase or sell such securities.\nUntil the earliest of (i) the execution by the Parties of a definitive agreement regarding the acquisition of one by the other, (ii) an acquisition of\neither Party by a third party, or (iii) one year after the date of this Agreement, each Party agrees not to initiate or maintain contact (except for those\ncontacts made in the ordinary course of business) with any officer, director or employee of the other Party, other than those specifically designated as\ncontacts for a possible transaction by each Party, regarding that Party’s business, operations, prospects or finances, except with the express\npermission of that Party. Without the prior written consent of the other Party, each Party agrees not to solicit for employment or hire any of the\ncurrent employees of the other Party until the earlier of (a) execution by the Parties of a definitive agreement; or (b) termination, in writing, of\ndiscussions under this Agreement, and, in each case of (a) or (b) plus a period of one year thereafter. General solicitation activities not directed to\nemployees of the other Party shall not be a breach of this Paragraph.\nEach Party hereby agrees that, until one year after the date of this Agreement, unless such shall have been specifically agreed in writing by the\nother Party, neither Party nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), each an “Affiliate”) will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\ncause or participate in or in any way advise, assist or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in (i) any acquisition of any securities of the other Party or any of its Affiliates or (ii) any tender or exchange offer, merger or\nother business combination involving the other Party or any of its Affiliates; (b) otherwise act, alone or in concert with others, to seek to control or\ninfluence the management, Board of Directors or policies of the other Party or any of its Affiliates; or (c) enter into any arrangements with any third\nparty with respect to any of the foregoing. The foregoing obligations will be automatically revised, during the period of time set forth above, to be\nequal to provisions in any confidentiality agreement entered into by either Party with a third party regarding a similar subject matter, but containing\nless restrictive obligations. Such automatic revision will occur upon written notice from one Party to the other Party containing the new provisions,\nwhich notice must be given promptly following entry into such agreement with a third party. The foregoing obligations, including the revisions to the\ncovenant contemplated by the preceding sentence, shall automatically terminate on the public announcement by a third party of a tender or exchange\noffer by, or merger or other business combination with, or any other transaction intended to have, or having, a similar effect, involving either Party or\nany of its Affiliates; provided that neither Party nor any of its respective Affiliates was directly or indirectly involved in such transaction with such\nthird party. As of the date hereof, Digene has not entered into any agreement with a third party that creates obligations relating to subject matter\nsubstantially similar to that of this paragraph that are any less restrictive than the provisions hereof.\nThe Parties agree that unless and until a final definitive agreement regarding a transaction between the Parties has been executed and delivered,\nneither Party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Each Party reserves the right, in its sole discretion, to reject any and all proposals made by the other Party or its\nRepresentatives with regard to a transaction between the Parties, and to terminate discussions and negotiations with the other Party at any time. The\nRecipient\n3\nacknowledges and agrees that the Disclosing Party has not granted to the Recipient any license, copyright or similar right with respect to any of the\nEvaluation Material.\nIt is understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement and that the Disclosing Party\nshall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Each Recipient further agrees to\nwaive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive\nremedy for breach of this agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party.\nIn the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a Party\nhas breached this Agreement, then such party shall be liable and pay to the non-breaching Party the reasonable legal fees such non-breaching Party\nhas incurred in connection with such litigation, including any appeal therefrom.\nThis Agreement supersedes the Confidentiality Agreement between the Parties dated April 5, 2007 and may be modified or waived only by a\nseparate writing signed by the Parties expressly so modifying or waiving such agreements. It is understood and agreed that no failure or delay by a\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or further exercise thereof or the exercise of any right, power or privilege hereunder. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\nThis Agreement is for the benefit of the Parties and shall be governed and construed in accordance with the laws of the State of Delaware\nUSA.\nThis Agreement may not be assigned in whole or in part by either Party hereto without the prior written consent of the other Party.\nFor the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be an\noriginal, and both of which taken together, shall constitute one agreement binding on both parties.\n4\nIN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement as of the day and year first set forth\nabove.\nQIAGEN N.V.\nBy: /s/ Peer M. Schatz\nName: Peer M. Schatz\nTitle: President and Chief Executive Officer\nDIGENE CORPORATION\nBy: /s/ Joseph P. Slattery\nName: Joseph P. Slattery\nTitle: Chief Financial Officer\n5	EX-99.(E)(2) 3 dex99e2.htm AMENDED & RESTATED CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nAMENDED AND RESTATED\nCONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement (this “Agreement”) dated May 22, 2007 (the “Effective Date”), is entered into by and\namong QIAGEN N.V. a corporation formed under the laws of The Netherlands (“QIAGEN”), with offices at Spoorstraat 50, 5911 KJ Venlo, The\nNetherlands, and Digene Corporation, a Delaware corporation (“Digene”), with offices at 1201 Clopper Road, Gaithersburg, MD 20878, and amends\nand restates that certain Confidentiality Agreement entered into by and among QIAGEN and Digene on May 7, 2007.\nQIAGEN, on behalf of itself and its subsidiaries, and Digene, on behalf of itself and its subsidiaries (the “Parties”) intend to explore a possible\nnegotiated transaction, and in connection therewith each Party expects to make available certain financial, operating and business information about\nitself to the other Party. In this Agreement, the Party disclosing Evaluation Material (as defined below) is referred to as the “Disclosing Party” and\nthe Party receiving Evaluation Material is referred to as the “Recipient.” As a condition to the Disclosing Party furnishing such information to the\nRecipient and subsidiaries and their respective directors, officers, employees, agents or advisors (including, without limitation, affiliates, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), the Recipient agrees to treat all Evaluation Material in\naccordance with the provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth.\nThe term “Evaluation Material” shall mean all information relating, directly or indirectly, to the Disclosing Party or the business, products and\nservices, technologies, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the\nDisclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise), which is delivered, disclosed or furnished by or on behalf of\nthe Disclosing Party to the Recipient or its Representatives for purposes of the Recipient considering the possible transaction the subject of this\nAgreement, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished or which the Recipient or its\nRepresentatives otherwise learn or obtain, through observation or through analysis of such information, and shall also be deemed to include all notes,\nanalyses, compilations, studies, forecasts, projects, interpretations or other documents prepared by the Recipient or its Representatives which\ncontain, reflect or are based upon, in whole or in part, any such information. The term “documents” shall include, without limitation, any writing,\nletter, memorandum (internal or otherwise), telex, cable, facsimile, tape, disk drive, diskette, CD-ROM, e-mail transmission or other recording or\nmemoralization, chart, graph, blueprint, picture or financial statements or data. The term Evaluation Material does not include information which the\nRecipient can demonstrate (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its\nRepresentatives in breach of the terms hereof, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf\nof the Disclosing Party pursuant hereto; provided that the source of such information was not known by the Recipient to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with\nrespect to such information, or (iii) becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or\nany of its Representatives; provided that such source is not known by the Recipient to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information.\nThe Recipient and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated transaction\nbetween the Parties, shall keep the Evaluation Material confidential and shall not disclose any of the Evaluation Material in any manner whatsoever;\nprovided,\nhowever, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any\nof such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of evaluating a\npossible negotiated transaction between the Parties and who agree to keep such information confidential and agree to be bound by the terms hereof\nto the same extent as if they were parties hereto (which agreement need not be in writing). In any event, the Recipient shall be responsible for any\nbreach of this Agreement by any of its Representatives, and the Recipient agrees, at its sole expense, to take all reasonable measures (including but\nnot limited to court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material.\nWithout the prior written consent of the Disclosing Party, the Recipient and its Representatives will not disclose to any other person the\nexistence of this Agreement, the fact that the Evaluation Material has been made available to the Recipient, or the fact that discussions or\nnegotiations are taking place concerning a possible transaction involving the Parties or any of the terms, conditions or other facts with respect thereto\n(including the status thereof); provided that the Recipient may make such disclosure if it has received the advice of its counsel that such disclosure\nmust be made by the Recipient in order that it not commit a violation of any law; and provided, further, that the Recipient has given the Disclosing\nParty prompt prior written notice of the Recipient’s intent to make such disclosure and cooperated with the Disclosing Party if it attempts to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded to such disclosure. The term “person” as used\nin this Agreement shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group, limited liability\ncompany other entity or individual.\nIn the event that a Party decides not to proceed with the possible transaction with the other Party, it will promptly inform the other Party of that\ndecision. In that event, or at any time upon the Disclosing Party’s request, the Recipient shall promptly return to the Disclosing Party all Evaluation\nMaterial, including all written or otherwise tangible material containing or reflecting any information contained in the Evaluation Material (whether\nprepared by the Disclosing Party, its Representatives or otherwise), and will not retain any copies, extracts or other reproductions in whole or in part\nof such material. All documents, memoranda, notes and other writing whatsoever prepared by the Recipient or its Representatives based on the\ninformation contained in the Evaluation Material shall be destroyed. The Recipient shall certify such destruction to the Disclosing Party by providing\na certificate signed by an officer of the Recipient confirming destruction of materials as contemplated by this paragraph.\nThe Recipient understands and acknowledges that any and all information contained in the Evaluation Material is being provided without any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Neither the Disclosing Party nor any of\nits Representatives shall have any liability to the Recipient or any of its Representatives from the use of the Evaluation Material or any errors therein\nor omissions therefrom. It is understood that the scope of any representations and warranties to be given by each Party will be negotiated along with\nother terms and conditions in arriving at a mutually acceptable form of definitive agreement should discussions between the Parties progress to such\na point.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is the Parties” desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection\n2\nunder the attorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine.\nEach Party hereby acknowledges that it is aware (and that its Representatives who are apprised of this matter have been or will be advised) that\nthe United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling\nsecurities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such person is likely to purchase or sell such securities.\nUntil the earliest of (i) the execution by the Parties of a definitive agreement regarding the acquisition of one by the other, (ii) an acquisition of\neither Party by a third party, or (iii) one year after the date of this Agreement, each Party agrees not to initiate or maintain contact (except for those\ncontacts made in the ordinary course of business) with any officer, director or employee of the other Party, other than those specifically designated as\ncontacts for a possible transaction by each Party, regarding that Party’s business, operations, prospects or finances, except with the express\npermission of that Party. Without the prior written consent of the other Party, each Party agrees not to solicit for employment or hire any of the\ncurrent employees of the other Party until the earlier of (a) execution by the Parties of a definitive agreement; or (b) termination, in writing, of\ndiscussions under this Agreement, and, in each case of (a) or (b) plus a period of one year thereafter. General solicitation activities not directed to\nemployees of the other Party shall not be a breach of this Paragraph.\nEach Party hereby agrees that, until one year after the date of this Agreement, unless such shall have been specifically agreed in writing by the\nother Party, neither Party nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), each an “Affiliate”) will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\ncause or participate in or in any way advise, assist or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in (i) any acquisition of any securities of the other Party or any of its Affiliates or (ii) any tender or exchange offer, merger or\nother business combination involving the other Party or any of its Affiliates; (b) otherwise act, alone or in concert with others, to seek to control or\ninfluence the management, Board of Directors or policies of the other Party or any of its Affiliates; or (c) enter into any arrangements with any third\nparty with respect to any of the foregoing. The foregoing obligations will be automatically revised, during the period of time set forth above, to be\nequal to provisions in any confidentiality agreement entered into by either Party with a third party regarding a similar subject matter, but containing\nless restrictive obligations. Such automatic revision will occur upon written notice from one Party to the other Party containing the new provisions,\nwhich notice must be given promptly following entry into such agreement with a third party. The foregoing obligations, including the revisions to the\ncovenant contemplated by the preceding sentence, shall automatically terminate on the public announcement by a third party of a tender or exchange\noffer by, or merger or other business combination with, or any other transaction intended to have, or having, a similar effect, involving either Party or\nany of its Affiliates; provided that neither Party nor any of its respective Affiliates was directly or indirectly involved in such transaction with such\nthird party. As of the date hereof, Digene has not entered into any agreement with a third party that creates obligations relating to subject matter\nsubstantially similar to that of this paragraph that are any less restrictive than the provisions hereof.\nThe Parties agree that unless and until a final definitive agreement regarding a transaction between the Parties has been executed and delivered,\nneither Party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Each Party reserves the right, in its sole discretion, to reject any and all proposals made by the other Party or its\nRepresentatives with regard to a transaction between the Parties, and to terminate discussions and negotiations with the other Party at any time. The\nRecipient\nacknowledges and agrees that the Disclosing Party has not granted to the Recipient any license, copyright or similar right with respect to any of the\nEvaluation Material.\nIt is understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement and that the Disclosing Party\nshall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Each Recipient further agrees to\nwaive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive\nremedy for breach of this agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party.\nIn the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a Party\nhas breached this Agreement, then such party shall be liable and pay to the non-breaching Party the reasonable legal fees such non-breaching Party\nhas incurred in connection with such litigation, including any appeal therefrom.\nThis Agreement supersedes the Confidentiality Agreement between the Parties dated April 5, 2007 and may be modified or waived only by a\nseparate writing signed by the Parties expressly so modifying or waiving such agreements. It is understood and agreed that no failure or delay by a\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or further exercise thereof or the exercise of any right, power or privilege hereunder. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\nThis Agreement is for the benefit of the Parties and shall be governed and construed in accordance with the laws of the State of Delaware\nUSA.\nThis Agreement may not be assigned in whole or in part by either Party hereto without the prior written consent of the other Party.\nFor the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be an\noriginal, and both of which taken together, shall constitute one agreement binding on both parties.\n4\nIN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement as of the day and year first set forth\nabove.\nQIAGEN N.V.\nBy: /s/ Peer M. Schatz\nName: Peer M. Schatz\nTitle: President and Chief Executive Officer\nDIGENE CORPORATION\nBy: /s/ Joseph P. Slattery\nName: Joseph P. Slattery\nTitle: Chief Financial Officer	EX-99.(E)(2) 3 dex99e2.htm AMENDED & RESTATED CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nAMENDED AND RESTATED\nCONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement (this "Agreement") dated May 22, 2007 (the "Effective Date"), is entered into by and\namong QIAGEN N.V. a corporation formed under the laws of The Netherlands ("QIAGEN"), with offices at Spoorstraat 50, 5911 KJ Venlo, The\nNetherlands, and Digene Corporation, a Delaware corporation ("Digene"), with offices at 1201 Clopper Road, Gaithersburg, MD 20878, and amends\nand restates that certain Confidentiality Agreement entered into by and among QIAGEN and Digene on May 7, 2007.\nQIAGEN, on behalf of itself and its subsidiaries, and Digene, on behalf of itself and its subsidiaries (the "Parties") intend to explore a possible\nnegotiated transaction, and in connection therewith each Party expects to make available certain financial, operating and business information about\nitself to the other Party. In this Agreement, the Party disclosing Evaluation Material (as defined below) is referred to as the "Disclosing Party" and\nthe Party receiving Evaluation Material is referred to as the "Recipient." As a condition to the Disclosing Party furnishing such information to the\nRecipient and subsidiaries and their respective directors, officers, employees, agents or advisors (including, without limitation, affiliates, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, "Representatives"), the Recipient agrees to treat all Evaluation Material\nin\naccordance with the provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth.\nThe term "Evaluation Material" shall mean all information relating, directly or indirectly, to the Disclosing Party or the business, products and\nservices, technologies, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the\nDisclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise), which is delivered, disclosed or furnished by or on behalf of\nthe Disclosing Party to the Recipient or its Representatives for purposes of the Recipient considering the possible transaction the subject of this\nAgreement, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished or which the Recipient or its\nRepresentatives otherwise learn or obtain, through observation or through analysis of such information, and shall also be deemed to include all notes,\nanalyses, compilations, studies, forecasts, projects, interpretations or other documents prepared by the Recipient or its Representatives which\ncontain, reflect or are based upon, in whole or in part, any such information. The term "documents" shall include, without limitation, any writing,\nletter, memorandum (internal or otherwise), telex, cable, facsimile, tape, disk drive, diskette, CD-ROM, e-mail transmission or other recording or\nmemoralization, chart, graph, blueprint, picture or financial statements or data. The term Evaluation Material does not include information which\nthe\nRecipient can demonstrate (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its\nRepresentatives in breach of the terms hereof, (ii) was within the Recipient's possession prior to its being furnished to the Recipient by or on behalf\nof the Disclosing Party pursuant hereto; provided that the source of such information was not known by the Recipient to be bound by\na\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with\nrespect to such information, or (iii) becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or\nany of its Representatives; provided that such source is not known by the Recipient to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information.\nThe Recipient and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated transaction\nbetween the Parties, shall keep the Evaluation Material confidential and shall not disclose any of the Evaluation Material in any manner whatsoever;\nprovided,\nhowever, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any\nof\nsuch information may be disclosed to the Recipient's Representatives who need to know such information for the sole purpose of evaluating a\npossible negotiated transaction between the Parties and who agree to keep such information confidential and agree to be bound by the terms hereof\nto the same extent as if they were parties hereto (which agreement need not be in writing). In any event, the Recipient shall be responsible for any\nbreach of this Agreement by any of its Representatives, and the Recipient agrees, at its sole expense, to take all reasonable measures (including but\nnot limited to court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material.\nWithout the prior written consent of the Disclosing Party, the Recipient and its Representatives will not disclose to any other person\nthe\nexistence of this Agreement, the fact that the Evaluation Material has been made available to the Recipient, or the fact that discussions or\nnegotiations are taking place concerning a possible transaction involving the Parties or any of the terms, conditions or other facts with respect thereto\n(including the status thereof); provided that the Recipient may make such disclosure if it has received the advice of its counsel that such disclosure\nmust be made by the Recipient in order that it not commit a violation of any law; and provided, further, that the Recipient has given the Disclosing\nParty prompt prior written notice of the Recipient's intent to make such disclosure and cooperated with the Disclosing Party if it attempts to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded to such disclosure. The term "person" as used\nin this Agreement shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group, limited liability\ncompany other entity or individual.\nIn the event that a Party decides not to proceed with the possible transaction with the other Party, it will promptly inform the other Party of that\ndecision. In that event, or at any time upon the Disclosing Party's request, the Recipient shall promptly return to the Disclosing Party all Evaluation\nMaterial, including all written or otherwise tangible material containing or reflecting any information contained in the Evaluation Material (whether\nprepared by the Disclosing Party, its Representatives or otherwise), and will not retain any copies, extracts or other reproductions in whole or in part\nof such material. All documents, memoranda, notes and other writing whatsoever prepared by the Recipient or its Representatives based on the\ninformation contained in the Evaluation Material shall be destroyed. The Recipient shall certify such destruction to the Disclosing Party by providing\na certificate signed by an officer of the Recipient confirming destruction of materials as contemplated by this paragraph.\nThe Recipient understands and acknowledges that any and all information contained in the Evaluation Material is being provided without any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Neither the Disclosing Party nor any of\nits Representatives shall have any liability to the Recipient or any of its Representatives from the use of the Evaluation Material or any errors therein\nor omissions therefrom. It is understood that the scope of any representations and warranties to be given by each Party will be negotiated along with\nother terms and conditions in arriving at a mutually acceptable form of definitive agreement should discussions between the Parties progress to such\na point.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is the Parties' desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection\n2\nunder the attorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine.\nEach Party hereby acknowledges that it is aware (and that its Representatives who are apprised of this matter have been or will be advised) that\nthe United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling\nsecurities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such person is likely to purchase or sell such securities.\nUntil the earliest of (i) the execution by the Parties of a definitive agreement regarding the acquisition of one by the other, (ii) an acquisition of\neither Party by a third party, or (iii) one year after the date of this Agreement, each Party agrees not to initiate or maintain contact (except for those\ncontacts made in the ordinary course of business) with any officer, director or employee of the other Party, other than those specifically designated as\ncontacts for a possible transaction by each Party, regarding that Party's business, operations, prospects or finances, except with the express\npermission of that Party. Without the prior written consent of the other Party, each Party agrees not to solicit for employment or hire any of the\ncurrent employees of the other Party until the earlier of (a) execution by the Parties of a definitive agreement; or (b) termination, in writing, of\ndiscussions under this Agreement, and, in each case of (a) or (b) plus a period of one year thereafter. General solicitation activities not directed to\nemployees of the other Party shall not be a breach of this Paragraph.\nEach Party hereby agrees that, until one year after the date of this Agreement, unless such shall have been specifically agreed in writing by the\nother Party, neither Party nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the "Exchange\nAct"), each an "Affiliate") will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect,\nor\ncause\nor\nparticipate\nin\nor\nin\nany\nway\nadvise,\nassist\nor\nencourage\nany\nother\nperson\nto\neffect\nor\nseek,\noffer\nor\npropose\n(whether\npublicly\nor\notherwise)\nto effect or participate in (i) any acquisition of any securities of the other Party or any of its Affiliates or (ii) any tender or exchange offer, merger\nor\nother business combination involving the other Party or any of its Affiliates; (b) otherwise act, alone or in concert with others, to seek to control or\ninfluence the management, Board of Directors or policies of the other Party or any of its Affiliates; or (c) enter into any arrangements with any third\nparty with respect to any of the foregoing. The foregoing obligations will be automatically revised, during the period of time set forth above, to be\nequal to provisions in any confidentiality agreement entered into by either Party with a third party regarding a similar subject matter, but containing\nless restrictive obligations. Such automatic revision will occur upon written notice from one Party to the other Party containing the new provisions,\nwhich notice must be given promptly following entry into such agreement with a third party. The foregoing obligations, including the revisions to the\ncovenant contemplated by the preceding sentence, shall automatically terminate on the public announcement by a third party of a tender or exchange\noffer by, or merger or other business combination with, or any other transaction intended to have, or having, a similar effect, involving either Party\nor\nany of its Affiliates; provided that neither Party nor any of its respective Affiliates was directly or indirectly involved in such transaction with such\nthird party. As of the date hereof, Digene has not entered into any agreement with a third party that creates obligations relating to subject matter\nsubstantially similar to that of this paragraph that are any less restrictive than the provisions hereof.\nThe Parties agree that unless and until a final definitive agreement regarding a transaction between the Parties has been executed and delivered,\nneither Party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Each Party reserves the right, in its sole discretion, to reject any and all proposals made by the other Party or its\nRepresentatives with regard to a transaction between the Parties, and to terminate discussions and negotiations with the other Party at any time. The\nRecipient\n3\nacknowledges and agrees that the Disclosing Party has not granted to the Recipient any license, copyright or similar right with respect to any of the\nEvaluation Material.\nIt is understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement and that the Disclosing Party\nshall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Each Recipient further agrees to\nwaive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive\nremedy for breach of this agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party.\nIn the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a Party\nhas breached this Agreement, then such party shall be liable and pay to the non-breaching Party the reasonable legal fees such non-breaching Party\nhas incurred in connection with such litigation, including any appeal therefrom.\nThis Agreement supersedes the Confidentiality Agreement between the Parties dated April 5, 2007 and may be modified or waived only by\na\nseparate writing signed by the Parties expressly so modifying or waiving such agreements. It is understood and agreed that no failure or delay by a\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or further exercise thereof or the exercise of any right, power or privilege hereunder. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\nThis Agreement is for the benefit of the Parties and shall be governed and construed in accordance with the laws of the State of Delaware\nUSA.\nThis Agreement may not be assigned in whole or in part by either Party hereto without the prior written consent of the other Party.\nFor the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be an\noriginal, and both of which taken together, shall constitute one agreement binding on both parties.\n4\nIN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement as of the day and year first set forth\nabove.\nQIAGEN N.V.\nBy: /s/ Peer M. Schatz\nName: Peer M. Schatz\nTitle: President and Chief Executive Officer\nDIGENE CORPORATION\nBy: /s/ Joseph P. Slattery\nName: Joseph P. Slattery\nTitle: Chief Financial Officer\n5	EX-99.(E)(2) 3 dex99e2.htm AMENDED & RESTATED CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nAMENDED AND RESTATED\nCONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement (this “Agreement”) dated May 22, 2007 (the “Effective Date”), is entered into by and\namong QIAGEN N.V. a corporation formed under the laws of The Netherlands (“QIAGEN”), with offices at Spoorstraat 50, 5911 KJ Venlo, The\nNetherlands, and Digene Corporation, a Delaware corporation (“Digene”), with offices at 1201 Clopper Road, Gaithersburg, MD 20878, and amends\nand restates that certain Confidentiality Agreement entered into by and among QIAGEN and Digene on May 7, 2007.\nQIAGEN, on behalf of itself and its subsidiaries, and Digene, on behalf of itself and its subsidiaries (the “Parties”) intend to explore a possible\nnegotiated transaction, and in connection therewith each Party expects to make available certain financial, operating and business information about\nitself to the other Party. In this Agreement, the Party disclosing Evaluation Material (as defined below) is referred to as the “Disclosing Party” and\nthe Party receiving Evaluation Material is referred to as the “Recipient.” As a condition to the Disclosing Party furnishing such information to the\nRecipient and subsidiaries and their respective directors, officers, employees, agents or advisors (including, without limitation, affiliates, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), the Recipient agrees to treat all Evaluation Material in\naccordance with the provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth.\nThe term “Evaluation Material” shall mean all information relating, directly or indirectly, to the Disclosing Party or the business, products and\nservices, technologies, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the\nDisclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise), which is delivered, disclosed or furnished by or on behalf of\nthe Disclosing Party to the Recipient or its Representatives for purposes of the Recipient considering the possible transaction the subject of this\nAgreement, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished or which the Recipient or its\nRepresentatives otherwise learn or obtain, through observation or through analysis of such information, and shall also be deemed to include all notes,\nanalyses, compilations, studies, forecasts, projects, interpretations or other documents prepared by the Recipient or its Representatives which\ncontain, reflect or are based upon, in whole or in part, any such information. The term “documents” shall include, without limitation, any writing,\nletter, memorandum (internal or otherwise), telex, cable, facsimile, tape, disk drive, diskette, CD-ROM, e-mail transmission or other recording or\nmemoralization, chart, graph, blueprint, picture or financial statements or data. The term Evaluation Material does not include information which the\nRecipient can demonstrate (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its\nRepresentatives in breach of the terms hereof, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf\nof the Disclosing Party pursuant hereto; provided that the source of such information was not known by the Recipient to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with\nrespect to such information, or (iii) becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or\nany of its Representatives; provided that such source is not known by the Recipient to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information.\nThe Recipient and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated transaction\nbetween the Parties, shall keep the Evaluation Material confidential and shall not disclose any of the Evaluation Material in any manner whatsoever;\nprovided,\nhowever, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any\nof such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of evaluating a\npossible negotiated transaction between the Parties and who agree to keep such information confidential and agree to be bound by the terms hereof\nto the same extent as if they were parties hereto (which agreement need not be in writing). In any event, the Recipient shall be responsible for any\nbreach of this Agreement by any of its Representatives, and the Recipient agrees, at its sole expense, to take all reasonable measures (including but\nnot limited to court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material.\nWithout the prior written consent of the Disclosing Party, the Recipient and its Representatives will not disclose to any other person the\nexistence of this Agreement, the fact that the Evaluation Material has been made available to the Recipient, or the fact that discussions or\nnegotiations are taking place concerning a possible transaction involving the Parties or any of the terms, conditions or other facts with respect thereto\n(including the status thereof); provided that the Recipient may make such disclosure if it has received the advice of its counsel that such disclosure\nmust be made by the Recipient in order that it not commit a violation of any law; and provided, further, that the Recipient has given the Disclosing\nParty prompt prior written notice of the Recipient’s intent to make such disclosure and cooperated with the Disclosing Party if it attempts to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded to such disclosure. The term “person” as used\nin this Agreement shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group, limited liability\ncompany other entity or individual.\nIn the event that a Party decides not to proceed with the possible transaction with the other Party, it will promptly inform the other Party of that\ndecision. In that event, or at any time upon the Disclosing Party’s request, the Recipient shall promptly return to the Disclosing Party all Evaluation\nMaterial, including all written or otherwise tangible material containing or reflecting any information contained in the Evaluation Material (whether\nprepared by the Disclosing Party, its Representatives or otherwise), and will not retain any copies, extracts or other reproductions in whole or in part\nof such material. All documents, memoranda, notes and other writing whatsoever prepared by the Recipient or its Representatives based on the\ninformation contained in the Evaluation Material shall be destroyed. The Recipient shall certify such destruction to the Disclosing Party by providing\na certificate signed by an officer of the Recipient confirming destruction of materials as contemplated by this paragraph.\nThe Recipient understands and acknowledges that any and all information contained in the Evaluation Material is being provided without any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Neither the Disclosing Party nor any of\nits Representatives shall have any liability to the Recipient or any of its Representatives from the use of the Evaluation Material or any errors therein\nor omissions therefrom. It is understood that the scope of any representations and warranties to be given by each Party will be negotiated along with\nother terms and conditions in arriving at a mutually acceptable form of definitive agreement should discussions between the Parties progress to such\na point.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is the Parties’ desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection\n2\nunder the attorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine.\nEach Party hereby acknowledges that it is aware (and that its Representatives who are apprised of this matter have been or will be advised) that\nthe United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling\nsecurities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such person is likely to purchase or sell such securities.\nUntil the earliest of (i) the execution by the Parties of a definitive agreement regarding the acquisition of one by the other, (ii) an acquisition of\neither Party by a third party, or (iii) one year after the date of this Agreement, each Party agrees not to initiate or maintain contact (except for those\ncontacts made in the ordinary course of business) with any officer, director or employee of the other Party, other than those specifically designated as\ncontacts for a possible transaction by each Party, regarding that Party’s business, operations, prospects or finances, except with the express\npermission of that Party. Without the prior written consent of the other Party, each Party agrees not to solicit for employment or hire any of the\ncurrent employees of the other Party until the earlier of (a) execution by the Parties of a definitive agreement; or (b) termination, in writing, of\ndiscussions under this Agreement, and, in each case of (a) or (b) plus a period of one year thereafter. General solicitation activities not directed to\nemployees of the other Party shall not be a breach of this Paragraph.\nEach Party hereby agrees that, until one year after the date of this Agreement, unless such shall have been specifically agreed in writing by the\nother Party, neither Party nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), each an “Affiliate”) will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\ncause or participate in or in any way advise, assist or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in (i) any acquisition of any securities of the other Party or any of its Affiliates or (ii) any tender or exchange offer, merger or\nother business combination involving the other Party or any of its Affiliates; (b) otherwise act, alone or in concert with others, to seek to control or\ninfluence the management, Board of Directors or policies of the other Party or any of its Affiliates; or (c) enter into any arrangements with any third\nparty with respect to any of the foregoing. The foregoing obligations will be automatically revised, during the period of time set forth above, to be\nequal to provisions in any confidentiality agreement entered into by either Party with a third party regarding a similar subject matter, but containing\nless restrictive obligations. Such automatic revision will occur upon written notice from one Party to the other Party containing the new provisions,\nwhich notice must be given promptly following entry into such agreement with a third party. The foregoing obligations, including the revisions to the\ncovenant contemplated by the preceding sentence, shall automatically terminate on the public announcement by a third party of a tender or exchange\noffer by, or merger or other business combination with, or any other transaction intended to have, or having, a similar effect, involving either Party or\nany of its Affiliates; provided that neither Party nor any of its respective Affiliates was directly or indirectly involved in such transaction with such\nthird party. As of the date hereof, Digene has not entered into any agreement with a third party that creates obligations relating to subject matter\nsubstantially similar to that of this paragraph that are any less restrictive than the provisions hereof.\nThe Parties agree that unless and until a final definitive agreement regarding a transaction between the Parties has been executed and delivered,\nneither Party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Each Party reserves the right, in its sole discretion, to reject any and all proposals made by the other Party or its\nRepresentatives with regard to a transaction between the Parties, and to terminate discussions and negotiations with the other Party at any time. The\nRecipient\n3\nacknowledges and agrees that the Disclosing Party has not granted to the Recipient any license, copyright or similar right with respect to any of the\nEvaluation Material.\nIt is understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement and that the Disclosing Party\nshall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Each Recipient further agrees to\nwaive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive\nremedy for breach of this agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party.\nIn the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a Party\nhas breached this Agreement, then such party shall be liable and pay to the non-breaching Party the reasonable legal fees such non-breaching Party\nhas incurred in connection with such litigation, including any appeal therefrom.\nThis Agreement supersedes the Confidentiality Agreement between the Parties dated April 5, 2007 and may be modified or waived only by a\nseparate writing signed by the Parties expressly so modifying or waiving such agreements. It is understood and agreed that no failure or delay by a\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or further exercise thereof or the exercise of any right, power or privilege hereunder. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\nThis Agreement is for the benefit of the Parties and shall be governed and construed in accordance with the laws of the State of Delaware\nUSA.\nThis Agreement may not be assigned in whole or in part by either Party hereto without the prior written consent of the other Party.\nFor the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be an\noriginal, and both of which taken together, shall constitute one agreement binding on both parties.\n4\nIN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement as of the day and year first set forth\nabove.\nQIAGEN N.V.\nBy: /s/ Peer M. Schatz\nName: Peer M. Schatz\nTitle: President and Chief Executive Officer\nDIGENE CORPORATION\nBy: /s/ Joseph P. Slattery\nName: Joseph P. Slattery\nTitle: Chief Financial Officer\n5
a527509f8b744d57fc406679ab2287e0.pdf	effective_date jurisdiction party term	EX-10.8 12 d638429dex108.htm EX-10.8\nExhibit 10.8\nNON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT (“Agreement”) is\nentered into on the 24th day of June, 2010, by and between AGS LLC, a Delaware Corporation (“Company”), and Bob Miodunski\n(“Employee”).\nIn consideration of the Company employing. Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC, AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee’s\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee’s own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as “Confidential Information”), without the prior written consent of Company. In the event Employee is required by law or court order\nto disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy of\nany court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation—Employees. During the course of employment and for a two (2) year period thereafter, Employee shall\nnot, for himself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or\notherwise, directly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or\nencouraging such employee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing\nEmployee, a employer affiliated with Company or any competitor of Company or any affiliate thereof.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. During this period\nEmployee shall not, on behalf of Employee or on behalf of any other individual, association or entity, call on any of the clients or customers of\nthe Company or any affiliate of the Company for the purpose of soliciting or inducing any of such customers to acquire (or providing to any of\nsuch customers) any product or service provided by the Company or an affiliate of the Company, nor will Employee in any way, directly or\nindirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take away or to divert or direct their\nbusiness to Employee or any other person or entity by or with which Employee is employed, associated, affiliated or otherwise related. If you are\nterminated without “Cause” as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six\n(6) months unless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of\ntermination in exchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the protection of\nCompany and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee agrees that, in\naddition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be entitled to seek and\nobtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of restraining Employee from\nany actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term of employment.\n-2-\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee’s obligations to the Company under this Agreement.\n4. Proprietary Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery of Documents and Data Upon Termination. In the event of termination of Employee’s employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver, to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany’s trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in lines and an award against Employee for damages as well as the Company’s attorneys’ fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Company’s available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this Agreement shall be a waiver of any preceding or succeeding\nbreach of the same, or any other promise or condition. No waiver by the Company of any right shall be construed as a waiver of any other right.\nThe Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.\n8. Attorneys’ Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’\nfees, costs, and expenses.\n-3-\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a material\ncondition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties. This\nAgreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the benefit\nof the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern the\nvalidity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one or\nmore of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in whole\nor in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any time,\nat the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the foregoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or limit the\nscope, intent or interpretation of this Agreement.\n-4-\nAGS LLC\nBy:\n/s/ AGS LLC\n“Company”\n/s/ Bob Miodunski\n(Signature of Employee)\nBob Miodunski\n“Employee”\n-5-	EX-10.8 12 d638429dex108.htm EX-10.8\nExhibit 10.8\nNON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT (“Agreement”) is\nentered into on the 24th day of June, 2010, by and between AGS LLC, a Delaware Corporation (“Company”), and Bob Miodunski\n(“Employee™).\nIn consideration of the Company employing. Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC, AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee’s\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee’s own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as “Confidential Information”), without the prior written consent of Company. In the event Employee is required by law or court order\nto disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy of\nany court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation—Employees. During the course of employment and for a two (2) year period thereafter, Employee shall\nnot, for himself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or\notherwise, directly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or\nencouraging such employee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing\nEmployee, a employer affiliated with Company or any competitor of Company or any affiliate thereof.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. During this period\nEmployee shall not, on behalf of Employee or on behalf of any other individual, association or entity, call on any of the clients or customers of\nthe Company or any affiliate of the Company for the purpose of soliciting or inducing any of such customers to acquire (or providing to any of\nsuch customers) any product or service provided by the Company or an affiliate of the Company, nor will Employee in any way, directly or\nindirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take away or to divert or direct their\nbusiness to Employee or any other person or entity by or with which Employee is employed, associated, affiliated or otherwise related. If you are\nterminated without “Cause” as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six\n(6) months unless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of\ntermination in exchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this_Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the protection of\nCompany and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee agrees that, in\naddition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be entitled to seek and\nobtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of restraining Employee from\nany actual or threatened breach of such provisions. The provisions of this_Section 2 shall survive the term of employment.\n-\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee’s obligations to the Company under this Agreement.\n4. Proprietary Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery_of Documents and Data Upon Termination. In the event of termination of Employee’s employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver, to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany’s trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in lines and an award against Employee for damages as well as the Company’s attorneys’ fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Companys available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this Agreement shall be a waiver of any preceding or succeeding\nbreach of the same, or any other promise or condition. No waiver by the Company of any right shall be construed as a waiver of any other right.\nThe Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.\n8. Attorneys’ Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’\nfees, costs, and expenses.\n_3-\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a material\ncondition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties. This\nAgreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the benefit\nof the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern the\nvalidity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one or\nmore of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in whole\nor in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any time,\nat the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the foregoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or limit the\nscope, intent or interpretation of this Agreement.\n4-\nAGSLLC\nBy: /s/ AGS LLC\n“Company”\n/s/ Bob Miodunski\n(Signature of Employee)\nBob Miodunski\n“Employee”	EX-10.8 12 d638429dex108.htm EX-10.8\nExhibit 10.8\nNON-DISCLOSURE NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT ("Agreement") is\nentered into on the 24th day of June, 2010, by and between AGS LLC, a Delaware Corporation ("Company"), and Bob Miodunski\n("Employee").\nIn consideration of the Company employing. Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC, AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee's\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee's own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as "Confidential Information"), without the prior written consent of Company. In the event Employee is required by law or court order\nto disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy of\nany court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation-Employees. During the course of employment and for a two (2) year period thereafter, Employee shall\nnot, for himself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or\notherwise, directly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or\nencouraging such employee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing\nEmployee, a employer affiliated with Company or any competitor of Company or any affiliate thereof.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course\nof\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. During this period\nEmployee shall not, on behalf of Employee or on behalf of any other individual, association or entity, call on any of the clients or customers of\nthe Company or any affiliate of the Company for the purpose of soliciting or inducing any of such customers to acquire (or providing to any of\nsuch customers) any product or service provided by the Company or an affiliate of the Company, nor will Employee in any way, directly\nor\nindirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take away or to divert or direct their\nbusiness to Employee or any other person or entity by or with which Employee is employed, associated, affiliated or otherwise related. If you are\nterminated without "Cause" as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six\n(6) months unless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of\ntermination in exchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto\nmake a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the protection of\nCompany and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee agrees that, in\naddition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be entitled to seek and\nobtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of restraining Employee from\nany actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term of employment.\n-2-\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee's obligations to the Company under this Agreement.\n4. Proprietary. Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery. of Documents and Data Upon Termination. In the event of termination of Employee's employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver, to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany's trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in lines and an award against Employee for damages as well as the Company's attorneys' fees in collecting such damages, which\nshall\nbe in addition to, and shall not supersede, the Company's available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof\nany\nfailure by Employee to keep or perform any promise or condition of this Agreement shall be a waiver of any preceding or succeeding\nbreach of the same, or any other promise or condition. No waiver by the Company of any right shall be construed as a waiver of any other right.\nThe Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.\n8. Attorneys' Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys'\nfees, costs, and expenses.\n-3-\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a material\ncondition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties. This\nAgreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the benefit\nof the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern the\nvalidity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one or\nmore of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in whole\nor in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any time,\nat the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the foregoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or limit the\nscope, intent or interpretation of this Agreement.\n-4-\nAGS LLC\nBy:\n/s/ AGS LLC\n"Company"\n/s/ Bob Miodunski\n(Signature of Employee)\nBob Miodunski\n"Employee"\n-5-	EX-10.8 12 d638429dex108.htm EX-10.8\nExhibit 10.8\nNON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT (“Agreement”) is\nentered into on the 24th day of June, 2010, by and between AGS LLC, a Delaware Corporation (“Company”), and Bob Miodunski\n(“Employee”).\nIn consideration of the Company employing. Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC, AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee’s\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee’s own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as “Confidential Information”), without the prior written consent of Company. In the event Employee is required by law or court order\nto disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy of\nany court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation—Employees. During the course of employment and for a two (2) year period thereafter, Employee shall\nnot, for himself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or\notherwise, directly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or\nencouraging such employee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing\nEmployee, a employer affiliated with Company or any competitor of Company or any affiliate thereof.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. During this period\nEmployee shall not, on behalf of Employee or on behalf of any other individual, association or entity, call on any of the clients or customers of\nthe Company or any affiliate of the Company for the purpose of soliciting or inducing any of such customers to acquire (or providing to any of\nsuch customers) any product or service provided by the Company or an affiliate of the Company, nor will Employee in any way, directly or\nindirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take away or to divert or direct their\nbusiness to Employee or any other person or entity by or with which Employee is employed, associated, affiliated or otherwise related. If you are\nterminated without “Cause” as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six\n(6) months unless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of\ntermination in exchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the protection of\nCompany and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee agrees that, in\naddition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be entitled to seek and\nobtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of restraining Employee from\nany actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term of employment.\n-2-\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee’s obligations to the Company under this Agreement.\n4. Proprietary Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery of Documents and Data Upon Termination. In the event of termination of Employee’s employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver, to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany’s trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in lines and an award against Employee for damages as well as the Company’s attorneys’ fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Company’s available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this Agreement shall be a waiver of any preceding or succeeding\nbreach of the same, or any other promise or condition. No waiver by the Company of any right shall be construed as a waiver of any other right.\nThe Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.\n8. Attorneys’ Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’\nfees, costs, and expenses.\n-3-\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a material\ncondition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties. This\nAgreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the benefit\nof the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern the\nvalidity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one or\nmore of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in whole\nor in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any time,\nat the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the foregoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or limit the\nscope, intent or interpretation of this Agreement.\n-4-\nAGS LLC\nBy:\n/s/ AGS LLC\n“Company”\n/s/ Bob Miodunski\n(Signature of Employee)\nBob Miodunski\n“Employee”\n-5-
a61addc59a183d020f9639e422ddedd3.pdf	effective_date jurisdiction party term	EX-99.E .3 3 d364852dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nThis is a Non-Disclosure Agreement (this “Agreement”), effective as of the date stated below (the “Effective Date”), between SRI/Surgical\nExpress, Inc., a Florida corporation (the “Company”), and the undersigned (the “Counterparty”).\nBackground\nThe Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that the Company can\nshare confidential information pertinent to the Opportunity with confidence that the Counterparty will use such confidential information only to\nevaluate the Opportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The\nCounterparty and the Company are sometimes referred to individually as a “Party” and collectively as the “Parties.”\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n“Confidential Information” means all information concerning or related to the business, operations, results of operations, assets and affairs of\nthe Company, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating methods,\nbusiness strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings, concepts,\nresearch and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of authorship,\nknow-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists, customer\nand prospect lists, and supplier and other customer information and data that the Company or its Representatives discloses (or has, prior to the date\nof this Agreement, disclosed) to the Counterparty or its Representatives in connection with the Opportunity, however documented or disclosed\n(whether or not such information is marked as confidential), together with any copies, extracts, analyses, compilations, studies or other documents\nprepared or received by the Counterparty or its Representatives, which contain or otherwise reflect such information or the Counterparty’s review of,\nor interest in, the Opportunity or the Company. Confidential Information also includes the fact that the Confidential Information exists and has been\nmade available to the Counterparty, the fact that the Parties are considering the Opportunity, the potential terms of the Opportunity, and the fact that\ndiscussions are taking place concerning the Opportunity.\n“Opportunity” has the meaning set forth in the Background.\n“Representatives” means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. The Counterparty agrees to use the Confidential Information provided by the Company solely for the purpose of evaluating the Opportunity,\nand for no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding\nthe foregoing, the Counterparty may disclose such Confidential Information solely to those of its Representatives who (a) require such material for\nthe purpose of evaluating the Opportunity on behalf of the Counterparty, and (b) are informed by the Counterparty of the confidential nature of the\nConfidential Information and the obligations of this Agreement and agree to abide by the terms hereof as if they were the Counterparty hereunder.\nThe Counterparty shall take all actions necessary to cause its Representatives and affiliates who receive Confidential Information to comply with the\nterms of this Agreement as if they were the Counterparty hereunder. The Counterparty shall be responsible for any disclosure of Confidential\nInformation by its Representatives other than in accordance with the terms of this Agreement. The Counterparty acknowledges the confidential and\nproprietary nature of the Confidential Information provided by the Company and acknowledges and agrees that it is acquiring no rights whatsoever\nin or to such Confidential\nInformation. For avoidance of doubt, if the Parties do not consummate a transaction with respect to the Opportunity, neither the Counterparty nor its\nRepresentatives may use the Confidential Information for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that\nthey may conduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business\nand to compete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives will likely contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law and this Agreement restrict the Counterparty from pledging, selling, hedging,\ncontracting to sell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or\nwarrant to purchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of\nmaterial non-public information regarding the Company.\n3. During the three-year period commencing on the Effective Date (the “Standstill Period”), neither the Counterparty nor any of the\nCounterparty’s Representatives will, in any manner, directly or indirectly, without the prior written approval of the Company’s board of directors:\n(a) make, effect, initiate, cause or participate in:\n(i) any acquisition of beneficial ownership of any securities of the Company or any securities of any subsidiary or other affiliate of\nthe Company,\n(ii) any acquisition of any assets of the Company or any assets of any subsidiary or other affiliate of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving the Company or any subsidiary or other affiliate of the Company, or involving any securities or\nassets of the Company or any securities or assets of any subsidiary or other affiliate of the Company, or\n(iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to any of the actions described in this Section 3;\n(c) act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors or policies of\nthe Company;\n(d) make any public disclosure or take any action that might require the Company to make a public announcement regarding any of the\ntypes of matters set forth in clause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to any of the foregoing; or\n(h) request or propose that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 3.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n4. Confidential Information does not include information that the Counterparty demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Counterparty or its Representatives, subsidiaries or affiliates, (b) was properly known to the Counterparty, without restriction, prior\nto disclosure by the Company, (c) was properly disclosed to the Counterparty by another person, but only if such person is not bound by a\nconfidentiality agreement with the Company or is not otherwise restricted from providing such information by a contractual, legal or fiduciary duty.\nAdditionally, notwithstanding any other provision of this Agreement, if the Counterparty or any Representative of the Counterparty is, at any time,\nlegally compelled to disclose any Confidential Information, the Counterparty will provide the Company with prompt notice thereof so that the\nCompany may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In the\nabsence of a protective order or a waiver from the Company, the Counterparty or its Representative may comply with such legal requirement by\ndisclosing only such Confidential Information as is legally required.\n5. Neither the Company nor any of its Representatives makes any representation or warranty (express or implied) as to the accuracy or\ncompleteness of the Confidential Information, except for those express representations and warranties that may be made and set forth in a definitive\nagreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity or if asked by the Company at any time, the Counterparty will promptly return or\ndestroy all Confidential Information received under this Agreement, and all copies, extracts and other objects or items in which such Confidential\nInformation may be contained or embodied, and certify in writing that it has complied with this requirement.\n7. Without the prior consent of the Company, neither the Counterparty nor its Representatives will initiate contact with any employee of the\nCompany with respect to the Opportunity. The Counterparty agrees that, for a period of one year from the Effective Date of this Agreement, it will\nnot, and will not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for\nemployment or hire any employee of the Company with whom the Counterparty has had contact or who became known to the Counterparty in\nconnection with consideration of the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other\nsimilar employment solicitations that are not targeted at employees of the Company.\n8. The Counterparty will promptly notify the Company upon discovery of any unauthorized use or disclosure of the Confidential Information,\nor any other breach of this Agreement by the Counterparty or any of its Representatives, and will cooperate with the Company to help the Company\nregain possession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of five years\nfollowing the termination of discussion between the parties.\n11. The Counterparty acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the Company for which\ndamages are not an adequate remedy, and that the Company shall therefore be entitled (without the posting of a bond or other security) to equitable\nrelief in addition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Florida and may be modified or waived only in writing signed by the Party\nagainst which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the exclusive\njurisdiction of the courts of the State\nof Florida in Hillsborough County, Florida, for any actions, suits or proceedings arising out of or relating to this Agreement (and the Parties agree\nnot to commence any action, suit or proceeding relating thereto, except in such courts), and further agree that service of any process, summons,\nnotice or document by U.S. registered mail to the other Party’s address set forth next to their signature hereto shall be effective service of process for\nany action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of\nany action, suit or proceeding arising out of this Agreement, in the courts of the State of Florida or the United States of America located in\nHillsborough County, Florida, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term “person” means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover\nattorneys’ fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of 10 October, 2011 by:\n“Counterparty”\n/s/ Richard Steeves\nBy: Synergy Health plc\nName: Richard Steeves\nTitle: Group CEO\nCounterparty’s Address:\nSynergy Health plc\nGround Floor Stella\nWindmill Hill Business Park\nWhitehill Way, Swindon, SN5 6NX, UK\nAttention: Richard Steeves\n“Company”\nSRI/SURGICAL EXPRESS, INC.\nBy: /s/ Gerald Woodard\nName: Gerald Woodard\nTitle: CEO\nCompany’s Address:\n12425 Race Track Road\nTampa, FL 33626\nAttn: Gerald Woodard, Chief Executive Officer\nth	EX-99.E.3 3 d364852dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nThis is a Non-Disclosure Agreement (this “Agreement”), effective as of the date stated below (the “Effective Date”), between SRI/Surgical\nExpress, Inc., a Florida corporation (the “Company”), and the undersigned (the “Counterparty”).\nBackground\nThe Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that the Company can\nshare confidential information pertinent to the Opportunity with confidence that the Counterparty will use such confidential information only to\nevaluate the Opportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The\nCounterparty and the Company are sometimes referred to individually as a “Party” and collectively as the “Parties.”\n \nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n“Confidential Information” means all information concerning or related to the business, operations, results of operations, assets and affairs of\nthe Company, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating methods,\nbusiness strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings, concepts,\nresearch and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of authorship,\nknow-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists, customer\nand prospect lists, and supplier and other customer information and data that the Company or its Representatives discloses (or has, prior to the date\nof this Agreement, disclosed) to the Counterparty or its Representatives in connection with the Opportunity, however documented or disclosed\n(whether or not such information is marked as confidential), together with any copies, extracts, analyses, compilations, studies or other documents\nprepared or received by the Counterparty or its Representatives, which contain or otherwise reflect such information or the Counterparty’s review of,\nor interest in, the Opportunity or the Company. Confidential Information also includes the fact that the Confidential Information exists and has been\nmade available to the Counterparty, the fact that the Parties are considering the Opportunity, the potential terms of the Opportunity, and the fact that\ndiscussions are taking place concerning the Opportunity.\n“Opportunity” has the meaning set forth in the Background.\n“Representatives” means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. The Counterparty agrees to use the Confidential Information provided by the Company solely for the purpose of evaluating the Opportunity,\nand for no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding\nthe foregoing, the Counterparty may disclose such Confidential Information solely to those of its Representatives who (a) require such material for\nthe purpose of evaluating the Opportunity on behalf of the Counterparty, and (b) are informed by the Counterparty of the confidential nature of the\nConfidential Information and the obligations of this Agreement and agree to abide by the terms hereof as if they were the Counterparty hereunder.\nThe Counterparty shall take all actions necessary to cause its Representatives and affiliates who receive Confidential Information to comply with the\nterms of this Agreement as if they were the Counterparty hereunder. The Counterparty shall be responsible for any disclosure of Confidential\nInformation by its Representatives other than in accordance with the terms of this Agreement. The Counterparty acknowledges the confidential and\nproprietary nature of the Confidential Information provided by the Company and acknowledges and agrees that it is acquiring no rights whatsoever\nin or to such Confidential\nInformation. For avoidance of doubt, if the Parties do not consummate a transaction with respect to the Opportunity, neither the Counterparty nor its\nRepresentatives may use the Confidential Information for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that\nthey may conduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business\nand to compete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives will likely contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law and this Agreement restrict the Counterparty from pledging, selling, hedging,\ncontracting to sell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or\nwarrant to purchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of\nmaterial non-public information regarding the Company.\n3. During the three-year period commencing on the Effective Date (the “Standstill Period”), neither the Counterparty nor any of the\nCounterparty’s Representatives will, in any manner, directly or indirectly, without the prior written approval of the Company’s board of directors:\n(a) make, effect, initiate, cause or participate in:\n(i) any acquisition of beneficial ownership of any securities of the Company or any securities of any subsidiary or other affiliate of\nthe Company,\n(ii) any acquisition of any assets of the Company or any assets of any subsidiary or other affiliate of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving the Company or any subsidiary or other affiliate of the Company, or involving any securities or\nassets of the Company or any securities or assets of any subsidiary or other affiliate of the Company, or\n(iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to any of the actions described in this Section 3;\n(c) act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors or policies of\nthe Company;\n(d) make any public disclosure or take any action that might require the Company to make a public announcement regarding any of the\ntypes of matters set forth in clause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to any of the foregoing; or\n(h) request or propose that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 3.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n4. Confidential Information does not include information that the Counterparty demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Counterparty or its Representatives, subsidiaries or affiliates, (b) was properly known to the Counterparty, without restriction, prior\nto disclosure by the Company, (c) was properly disclosed to the Counterparty by another person, but only if such person is not bound by a\nconfidentiality agreement with the Company or is not otherwise restricted from providing such information by a contractual, legal or fiduciary duty.\nAdditionally, notwithstanding any other provision of this Agreement, if the Counterparty or any Representative of the Counterparty is, at any time,\nlegally compelled to disclose any Confidential Information, the Counterparty will provide the Company with prompt notice thereof so that the\nCompany may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In the\nabsence of a protective order or a waiver from the Company, the Counterparty or its Representative may comply with such legal requirement by\ndisclosing only such Confidential Information as is legally required.\n5. Neither the Company nor any of its Representatives makes any representation or warranty (express or implied) as to the accuracy or\ncompleteness of the Confidential Information, except for those express representations and warranties that may be made and set forth in a definitive\nagreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity or if asked by the Company at any time, the Counterparty will promptly return or\ndestroy all Confidential Information received under this Agreement, and all copies, extracts and other objects or items in which such Confidential\nInformation may be contained or embodied, and certify in writing that it has complied with this requirement.\n7. Without the prior consent of the Company, neither the Counterparty nor its Representatives will initiate contact with any employee of the\nCompany with respect to the Opportunity. The Counterparty agrees that, for a period of one year from the Effective Date of this Agreement, it will\nnot, and will not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for\nemployment or hire any employee of the Company with whom the Counterparty has had contact or who became known to the Counterparty in\nconnection with consideration of the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other\nsimilar employment solicitations that are not targeted at employees of the Company.\n8. The Counterparty will promptly notify the Company upon discovery of any unauthorized use or disclosure of the Confidential Information,\nor any other breach of this Agreement by the Counterparty or any of its Representatives, and will cooperate with the Company to help the Company\nregain possession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of five years\nfollowing the termination of discussion between the parties.\n11. The Counterparty acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the Company for which\ndamages are not an adequate remedy, and that the Company shall therefore be entitled (without the posting of a bond or other security) to equitable\nrelief in addition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Florida and may be modified or waived only in writing signed by the Party\nagainst which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the exclusive\njurisdiction of the courts of the State\nof Florida in Hillsborough County, Florida, for any actions, suits or proceedings arising out of or relating to this Agreement (and the Parties agree\nnot to commence any action, suit or proceeding relating thereto, except in such courts), and further agree that service of any process, summons,\nnotice or document by U.S. registered mail to the other Party’s address set forth next to their signature hereto shall be effective service of process for\nany action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of\nany action, suit or proceeding arising out of this Agreement, in the courts of the State of Florida or the United States of America located in\nHillsborough County, Florida, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term “person” means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover\nattorneys’ fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of 10t October, 2011 by:\n“Counterparty”\n/s/ Richard Steeves\nBy: Synergy Health plc\nName: Richard Steeves\nTitle: Group CEO\nCounterparty’s Address:\nSynergy Health plc\nGround Floor Stella\nWindmill Hill Business Park\nWhitehill Way, Swindon, SN5 6NX, UK\nAttention: Richard Steeves\n“Company”\nSRI/SURGICAL EXPRESS, INC.\nBy: /s/ Gerald Woodard\nName: Gerald Woodard\nTitle: CEO\nCompany’s Address:\n12425 Race Track Road\nTampa, FL 33626\nAttn: Gerald Woodard, Chief Executive Officer	EX-99.E.3 3 d364852dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nThis is a Non-Disclosure Agreement (this "Agreement"), effective as of the date stated below (the "Effective Date"), between SRI/Surgical\nExpress, Inc., a Florida corporation (the "Company."), and the undersigned (the "Counterparty.").\nBackground\nThe Parties are considering a potential business transaction (the "Opportunity."), and are entering into this Agreement so that the\nCompany\ncan\nshare confidential information pertinent to the Opportunity with confidence that the Counterparty will use such confidential information only to\nevaluate the Opportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement The\nCounterparty and the Company are sometimes referred to individually as a "Party." and collectively as the "Parties."\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n"Confidential Information" means all information concerning or related to the business, operations, results of operations, assets and affairs of\nthe Company, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating methods,\nbusiness strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings, concepts,\nresearch and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of authorship,\nknow-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists, customer\nand prospect lists, and supplier and other customer information and data that the Company or its Representatives discloses (or has, prior to the date\nof this Agreement, disclosed) to the Counterparty or its Representatives in connection with the Opportunity, however documented or disclosed\n(whether or not such information is marked as confidential), together with any copies, extracts, analyses, compilations, studies or other documents\nprepared or received by the Counterparty or its Representatives, which contain or otherwise reflect such information or the Counterparty's review of,\nor interest in, the Opportunity or the Company. Confidential Information also includes the fact that the Confidential Information exists and has been\nmade available to the Counterparty, the fact that the Parties are considering the Opportunity, the potential terms of the Opportunity, and the fact that\ndiscussions are taking place concerning the Opportunity.\n"Opportunity." has the meaning set forth in the Background.\n"Representatives" means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. The Counterparty agrees to use the Confidential Information provided by the Company solely for the purpose of evaluating the Opportunity,\nand\nfor\nno\nother\npurpose,\nand\nfurther\nagrees\nto\nkeep\nconfidential\nand\nnot\ndisclose\nto\nany\nthird\nparty\nany\nConfidential\nInformation.\nNotwithstanding\nthe foregoing, the Counterparty may disclose such Confidentia Information solely to those of its Representatives who (a) require such material for\nthe purpose of evaluating the Opportunity on behalf of the Counterparty, and (b) are informed by the Counterparty of the confidential nature of the\nConfidential Information and the obligations of this Agreement and agree to abide by the terms hereof as if they were the Counterparty hereunder.\nThe Counterparty shal take all actions necessary to cause its Representatives and affiliates who receive Confidential Information to comply with the\nterms of this Agreement as if they were the Counterparty hereunder. The Counterparty shall be responsible for any disclosure of Confidential\nInformation by its Representatives other than in accordance with the terms of this Agreement. The Counterparty acknowledges the confidential and\nproprietary nature of the Confidential Information provided by the Company and acknowledges and agrees that it is acquiring no rights whatsoever\nin or to such Confidential\nInformation. For avoidance of doubt, if the Parties do not consummate a transaction with respect to the Opportunity, neither the Counterparty nor its\nRepresentatives may use the Confidential Information for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that\nthey may conduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business\nand to compete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives will likely contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law and this Agreement restrict the Counterparty from pledging, selling, hedging,\ncontracting to sell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or\nwarrant to purchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of\nmaterial non-public information regarding the Company.\n3. During the three-year period commencing on the Effective Date (the "Standstill Period"), neither the Counterparty nor any of the\nCounterparty's Representatives will, in any manner, directly or indirectly, without the prior written approval of the Company's board of directors:\n(a) make, effect, initiate, cause or participate in:\n(i) any acquisition of beneficial ownership of any securities of the Company or any securities of any subsidiary or other affiliate of\nthe Company,\n(ii) any acquisition of any assets of the Company or any assets of any subsidiary or other affiliate of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving the Company or any subsidiary or other affiliate of the Company, or involving any securities or\nassets of the Company or any securities or assets of any subsidiary or other affiliate of the Company, or\n(iv) any "solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to any of the actions described in this Section 3;\n(c) act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors or policies of\nthe Company;\n(d) make any public disclosure or take any action that might require the Company to make a public announcement regarding any of the\ntypes of matters set forth in clause "(a)" of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause "(a)", "(b)", "(c)"\nor "(d)" of this sentence;\n(f) assist, induce or encourage any other person to take any action of the type referred to in clause "(a)", "(b)", "(c)", "(d)" or "(e)" of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to any of the foregoing; or\n(h) request or propose that the Company or any of the Company's Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 3.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n4. Confidential Information does not include information that the Counterparty demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Counterparty or its Representatives, subsidiaries or affiliates, (b) was properly known to the Counterparty, without restriction, prior\nto disclosure by the Company, (c) was properly disclosed to the Counterparty by another person, but only if such person is not bound by\na\nconfidentiality agreement with the Company or is not otherwise restricted from providing such information by a contractual, legal or fiduciary duty.\nAdditionally, notwithstanding any other provision of this Agreement, if the Counterparty or any Representative of the Counterparty is, at any time,\nlegally compelled to disclose any Confidentia Information, the Counterparty will provide the Company with prompt notice thereof so that the\nCompany may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In the\nabsence of a protective order or a waiver from the Company, the Counterparty or its Representative may comply with such legal requirement by\ndisclosing only such Confidential Information as is legally required.\n5. Neither the Company nor any of its Representatives makes any representation or warranty (express or implied) as to the accuracy or\ncompleteness of the Confidential Information, except for those express representations and warranties that may be made and set forth in a definitive\nagreement regarding the Opportunity, if any, that is entered into between the Parties.\n6.\nIf either Party decides not to proceed with the Opportunity or if asked by the Company at any time, the Counterparty will promptly return or\ndestroy all Confidential Information received under this Agreement, and all copies, extracts and other objects or items in which such Confidential\nInformation may be contained or embodied, and certify in writing that it has complied with this requirement.\n7. Without the prior consent of the Company, neither the Counterparty nor its Representatives will initiate contact with any employee of\nthe\nCompany with respect to the Opportunity. The Counterparty agrees that, for a period of one year from the Effective Date of this Agreement, it will\nnot, and will not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for\nemployment or hire any employee of the Company with whom the Counterparty has had contact or who became known to the Counterparty in\nconnection with consideration of the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other\nsimilar employment solicitations that are not targeted at employees of the Company.\n8. The Counterparty will promptly notify the Company upon discovery of any unauthorized use or disclosure of the Confidential Information,\nor any other breach of this Agreement by the Counterparty or any of its Representatives, and will cooperate with the Company to help the Company\nregain possession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of five years\nfollowing the termination of discussion between the parties\n11. The Counterparty acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the Company for which\ndamages are not an adequate remedy, and that the Company shall therefore be entitled (without the posting of a bond or other security) to equitable\nrelief in addition to all other remedies available at law.\n12.\nThis Agreement is governed by the internal laws of the State of Florida and may be modified or waived only in writing signed by the Party\nagainst which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the exclusive\njurisdiction of the courts of the State\nof Florida in Hillsborough County, Florida, for any actions, suits or proceedings arising out of or relating to this Agreement (and the Parties agree\nnot to commence any action, suit or proceeding relating thereto, except in such courts), and further agree that service of any process, summons,\nnotice or document by U.S. registered mail to the other Party's address set forth next to their signature hereto shall be effective service of process\nfor\nany action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of\nany action, suit or proceeding arising out of this Agreement, in the courts of the State of Florida or the United States of America located in\nHillsborough County, Florida, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term "person" means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover\nattorneys' fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of 10th October, 2011 by:\n"Counterparty"\n/s/ Richard Steeves\nBy: Synergy Health plc\nName: Richard Steeves\nTitle: Group CEO\nCounterparty's Address:\nSynergy Health plc\nGround Floor Stella\nWindmill Hill Business Park\nWhitehill Way, Swindon, SN5 6NX, UK\nAttention: Richard Steeves\n"Company"\nSRI/SURGICAL EXPRESS, INC.\nBy: /s/ Gerald Woodard\nName: Gerald Woodard\nTitle: CEO\nCompany's Address:\n12425 Race Track Road\nTampa, FL 33626\nAttn: Gerald Woodard, Chief Executive Officer	EX-99.E .3 3 d364852dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nThis is a Non-Disclosure Agreement (this “Agreement”), effective as of the date stated below (the “Effective Date”), between SRI/Surgical\nExpress, Inc., a Florida corporation (the “Company”), and the undersigned (the “Counterparty”).\nBackground\nThe Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that the Company can\nshare confidential information pertinent to the Opportunity with confidence that the Counterparty will use such confidential information only to\nevaluate the Opportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The\nCounterparty and the Company are sometimes referred to individually as a “Party” and collectively as the “Parties.”\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n“Confidential Information” means all information concerning or related to the business, operations, results of operations, assets and affairs of\nthe Company, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating methods,\nbusiness strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings, concepts,\nresearch and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of authorship,\nknow-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists, customer\nand prospect lists, and supplier and other customer information and data that the Company or its Representatives discloses (or has, prior to the date\nof this Agreement, disclosed) to the Counterparty or its Representatives in connection with the Opportunity, however documented or disclosed\n(whether or not such information is marked as confidential), together with any copies, extracts, analyses, compilations, studies or other documents\nprepared or received by the Counterparty or its Representatives, which contain or otherwise reflect such information or the Counterparty’s review of,\nor interest in, the Opportunity or the Company. Confidential Information also includes the fact that the Confidential Information exists and has been\nmade available to the Counterparty, the fact that the Parties are considering the Opportunity, the potential terms of the Opportunity, and the fact that\ndiscussions are taking place concerning the Opportunity.\n“Opportunity” has the meaning set forth in the Background.\n“Representatives” means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. The Counterparty agrees to use the Confidential Information provided by the Company solely for the purpose of evaluating the Opportunity,\nand for no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding\nthe foregoing, the Counterparty may disclose such Confidential Information solely to those of its Representatives who (a) require such material for\nthe purpose of evaluating the Opportunity on behalf of the Counterparty, and (b) are informed by the Counterparty of the confidential nature of the\nConfidential Information and the obligations of this Agreement and agree to abide by the terms hereof as if they were the Counterparty hereunder.\nThe Counterparty shall take all actions necessary to cause its Representatives and affiliates who receive Confidential Information to comply with the\nterms of this Agreement as if they were the Counterparty hereunder. The Counterparty shall be responsible for any disclosure of Confidential\nInformation by its Representatives other than in accordance with the terms of this Agreement. The Counterparty acknowledges the confidential and\nproprietary nature of the Confidential Information provided by the Company and acknowledges and agrees that it is acquiring no rights whatsoever\nin or to such Confidential\nInformation. For avoidance of doubt, if the Parties do not consummate a transaction with respect to the Opportunity, neither the Counterparty nor its\nRepresentatives may use the Confidential Information for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that\nthey may conduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business\nand to compete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives will likely contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law and this Agreement restrict the Counterparty from pledging, selling, hedging,\ncontracting to sell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or\nwarrant to purchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of\nmaterial non-public information regarding the Company.\n3. During the three-year period commencing on the Effective Date (the “Standstill Period”), neither the Counterparty nor any of the\nCounterparty’s Representatives will, in any manner, directly or indirectly, without the prior written approval of the Company’s board of directors:\n(a) make, effect, initiate, cause or participate in:\n(i) any acquisition of beneficial ownership of any securities of the Company or any securities of any subsidiary or other affiliate of\nthe Company,\n(ii) any acquisition of any assets of the Company or any assets of any subsidiary or other affiliate of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving the Company or any subsidiary or other affiliate of the Company, or involving any securities or\nassets of the Company or any securities or assets of any subsidiary or other affiliate of the Company, or\n(iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to any of the actions described in this Section 3;\n(c) act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors or policies of\nthe Company;\n(d) make any public disclosure or take any action that might require the Company to make a public announcement regarding any of the\ntypes of matters set forth in clause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to any of the foregoing; or\n(h) request or propose that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 3.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n4. Confidential Information does not include information that the Counterparty demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Counterparty or its Representatives, subsidiaries or affiliates, (b) was properly known to the Counterparty, without restriction, prior\nto disclosure by the Company, (c) was properly disclosed to the Counterparty by another person, but only if such person is not bound by a\nconfidentiality agreement with the Company or is not otherwise restricted from providing such information by a contractual, legal or fiduciary duty.\nAdditionally, notwithstanding any other provision of this Agreement, if the Counterparty or any Representative of the Counterparty is, at any time,\nlegally compelled to disclose any Confidential Information, the Counterparty will provide the Company with prompt notice thereof so that the\nCompany may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In the\nabsence of a protective order or a waiver from the Company, the Counterparty or its Representative may comply with such legal requirement by\ndisclosing only such Confidential Information as is legally required.\n5. Neither the Company nor any of its Representatives makes any representation or warranty (express or implied) as to the accuracy or\ncompleteness of the Confidential Information, except for those express representations and warranties that may be made and set forth in a definitive\nagreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity or if asked by the Company at any time, the Counterparty will promptly return or\ndestroy all Confidential Information received under this Agreement, and all copies, extracts and other objects or items in which such Confidential\nInformation may be contained or embodied, and certify in writing that it has complied with this requirement.\n7. Without the prior consent of the Company, neither the Counterparty nor its Representatives will initiate contact with any employee of the\nCompany with respect to the Opportunity. The Counterparty agrees that, for a period of one year from the Effective Date of this Agreement, it will\nnot, and will not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for\nemployment or hire any employee of the Company with whom the Counterparty has had contact or who became known to the Counterparty in\nconnection with consideration of the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other\nsimilar employment solicitations that are not targeted at employees of the Company.\n8. The Counterparty will promptly notify the Company upon discovery of any unauthorized use or disclosure of the Confidential Information,\nor any other breach of this Agreement by the Counterparty or any of its Representatives, and will cooperate with the Company to help the Company\nregain possession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of five years\nfollowing the termination of discussion between the parties.\n11. The Counterparty acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the Company for which\ndamages are not an adequate remedy, and that the Company shall therefore be entitled (without the posting of a bond or other security) to equitable\nrelief in addition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Florida and may be modified or waived only in writing signed by the Party\nagainst which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the exclusive\njurisdiction of the courts of the State\nof Florida in Hillsborough County, Florida, for any actions, suits or proceedings arising out of or relating to this Agreement (and the Parties agree\nnot to commence any action, suit or proceeding relating thereto, except in such courts), and further agree that service of any process, summons,\nnotice or document by U.S. registered mail to the other Party’s address set forth next to their signature hereto shall be effective service of process for\nany action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of\nany action, suit or proceeding arising out of this Agreement, in the courts of the State of Florida or the United States of America located in\nHillsborough County, Florida, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term “person” means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover\nattorneys’ fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of 10 October, 2011 by:\n“Counterparty”\n/s/ Richard Steeves\nBy: Synergy Health plc\nName: Richard Steeves\nTitle: Group CEO\nCounterparty’s Address:\nSynergy Health plc\nGround Floor Stella\nWindmill Hill Business Park\nWhitehill Way, Swindon, SN5 6NX, UK\nAttention: Richard Steeves\n“Company”\nSRI/SURGICAL EXPRESS, INC.\nBy: /s/ Gerald Woodard\nName: Gerald Woodard\nTitle: CEO\nCompany’s Address:\n12425 Race Track Road\nTampa, FL 33626\nAttn: Gerald Woodard, Chief Executive Officer\nth
a7218ec1b4c89421a3ce2ecd4ee5765e.pdf	effective_date jurisdiction party term	EX-10.38 10 dex1038.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.38\nRETENTION PAYMENT, NON-COMPETITION, NON-SOLICITATION,\nNON-DISPARAGEMENT, AND CONFIDENTIALITY AGREEMENT\nPhillip J. Gaines:\nYRC Worldwide, Inc., a Delaware corporation (“YRCW”), has determined that you are important to the operation of the business of YRCW\nand its affiliates As such, YRCW desires to provide you with an incentive to remain employed with YRCW through and after July 1, 2010 (the\n“Vesting Date”). Accordingly, YRCW is pleased to offer you the opportunity to receive the Retention Payment (defined below) described in this\nRetention Payment, Non-Competition, Non-Solicitation, Non-Disparagement, and Confidentiality Agreement (this “Agreement”), subject to the\nterms and conditions set forth below.\nIn addition, in the course of your work, you will, or have, become aware of information of a confidential nature pertaining to the business of\nYRCW. YRCW maintains policies and procedures with respect to the use and the dissemination of confidential information. Your employment\ncreates a relationship of confidence and trust between you and YRCW with respect to any information applicable to the business of YRCW which\nmay be, or has been, made known to you by YRCW or learned by you in the course of your work. You understand that you have an obligation to\npreserve the confidentiality of such information and use it only for the purpose for which it was obtained.\nIn consideration for the Retention Payment and confidential information, the receipt and adequacy of which are hereby acknowledged, you\nunderstand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you expressly agree that:\n1. Retention Payment. Subject to the terms and restrictions set forth in this paragraph, YRCW will pay you a retention payment in an amount\nequal to one times your base salary $340,000 as of the date of this Agreement (the “Retention Payment”); provided, you are still employed by\nYRCW on the Vesting Date. Unless otherwise provided within this Agreement, the Retention Payment will vest and become payable, less\napplicable tax withholding or other deductions, on the Vesting Date. If your employment with YRCW ends as a result of your resignation for\nany reason or your termination by YRCW with Cause before the Vesting Date, the Retention Payment will not vest and you will not be paid\nthe Retention Payment. If your employment is terminated by YRCW without Cause before the Vesting Date, the Retention Payment will vest\nand will be paid to you, less applicable tax withholding or other deductions, six months following your termination by YRCW without Cause;\nprovided, you have not breached any applicable provision of this Agreement, in which case the Retention Payment will not vest and YRCW\nwill withhold payment of the Retention Payment as damages for any such breach. For purposes of this Agreement, “Cause” shall mean any of\nthe following: (i) your conviction of a felony involving acts of dishonesty, fraud, or moral turpitude; (ii) your willful or repeated failure to\nperform your duties following 30 days notice of such failure and your failure to cure within such 30 days; (iii) willful misconduct material to\nyour employment; (iv) material breach of YRCW policies or rules of which you have been made aware following 30 days notice of such\nbreach and your failure to cure within such 30 days; (v) your material and demonstrable dishonesty related to your employment; or (vi) gross\nnegligence in the performance of your job duties. For purposes of the Agreement, your employment with YRCW will not be considered\nterminated without Cause unless the termination without Cause meets the requirements of a “separation from service” as defined in\nSection 409A.\n1\n2. Non-Competition. You acknowledge that the agreements and covenants contained in this Section 2 of this Agreement are essential to protect\nthe value of the business and assets of YRCW and its affiliates and by your prior and continued employment with YRCW you have obtained,\nand will continue to obtain, valuable confidential information, knowledge, contacts, and experience, and there is a substantial probability that\nsuch confidential information, knowledge, contacts, and experience could be used to the substantial advantage of a competitor of YRCW or its\naffiliates to YRCW’s or its affiliates’ substantial detriment. Therefore, you agree that so long as you are employed by YRCW and for the\nperiod commencing as of the day of your termination with YRCW, whether with or without Cause and whether before or after receipt of the\nRetention Payment, and ending 6 months following termination of your employment with YRCW (the “Restricted Period”), you shall not, and\nshall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of YRCW or any of its affiliates),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of YRCW or any of its affiliates (the “Business”) in any geographic region for which you had direct or indirect responsibility on\nbehalf of YRCW or any of its affiliates or in any geographic region for which you had confidential information of YRCW or any of its\naffiliates.\n3. Non-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of YRCW or its affiliates): (i) cause, solicit, induce, or encourage any employees, consultants, or contractors of YRCW or its\naffiliates to leave such employment or service, (ii) hire, employ, or otherwise engage any such individual, (iii) cause, induce, or encourage any\nactual or prospective client, customer, supplier, or licensor of YRCW or its affiliates (including any existing or former customers of YRCW or\nits affiliates) to terminate or modify any such actual or prospective business relationship with YRCW or its affiliates, or (iv) develop a business\nrelationship with any actual or prospective client, customer, supplier, or licensor to cause, induce, or encourage such individual to become a\nclient, customer, supplier, or licensor of any business in which you are engaged that is competitive with the Business. The restrictions relating\nto actual or prospective clients, customers, suppliers, or licensors in this paragraph apply only to (a) those actual or prospective clients,\ncustomers, suppliers, or licensors with whom you had contact on behalf of YRCW during the last 12 months of your employment with YRCW,\nor (b) any of YRCW’s actual or prospective clients, customers, suppliers, or licensors about whom you had any confidential information\nduring the last 12 months of your employment with YRCW. In no event shall it be a violation of this Section 3 to engage in solicitations\nincidental to general advertising or other general solicitation in the ordinary course not specifically targeted at such persons or to employ any\nperson not solicited in violation hereof.\n4. Non-Disparagement. You agree that, during your employment with YRCW or at any time thereafter, you shall not make any public statement\nthat is materially disparaging of the business of YRCW or its affiliates, or to the business reputation of any of the executive officers of YRCW\nor its affiliates or any of the employees of YRCW or its affiliates who are known to you to be employees of YRCW or its affiliates at the time\nof any such public statement. Your obligations under this Section 4 shall not apply to disclosures required by applicable law, regulation, or\norder of a court or governmental agency.\n2\n5. Confidentiality. All information related to the business of YRCW or its affiliates that may be obtained by you from any source as a result of\nyour employment shall be considered as confidential. Materials contained in customers’ files should always be regarded as confidential. You\nshould always maintain appropriate administrative, technical, and physical safeguards over records in your possession to prevent unauthorized\naccess. Information regarding strategic or tactical business plans; undisclosed business, operational, or financial data; ideas, processes,\nmethods, techniques, systems, non-public information, models, devices, programs, computer software, or related information; documents\nrelating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending, or\nthreatened legal dispute; pricing or cost data; the identity, reports, or analysis of business prospects; business transactions that are contemplated\nor planned; research data; personnel information or data; identities of users or purchasers of YRCW’s or its affiliates’ products or services; or\nany business methods, operations, or results of YRCW or its affiliates may not be disclosed to competitors, to the public, or to any person, nor\ncan the preceding information be otherwise used except as your duties at YRCW may require or with the prior written approval of an\nauthorized senior officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software, or\nother strategies which you develop in the course of performing responsibilities or using YRCW equipment or facilities are the property of\nYRCW. Upon termination of your employment, you are required to deliver to YRCW all documents, recordings, and other tangible records\n(including tapes, discs, or other similar media) that contain or are derived from YRCW’s or its affiliates’ confidential information.\n6. Reasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\narbitration panel or court of competent jurisdiction may reform such obligations to the extent necessary to enforce them under applicable law.\nYou further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and irreparable damage to\nYRCW and its affiliates. Accordingly, you agree that upon any actual or threatened violation of any of these obligations and covenants (i) you\nare required to return the Retention Payment to YRCW, and (ii) YRCW is entitled to withhold payment of the Retention Payment, to injunctive\nrelief in any court of competent jurisdiction, and to any other remedies it may have.\nThe provisions of this Agreement are in addition to the provisions in any written employment agreement between YRCW and you, and will\nnot affect your responsibilities or any other rights of YRCW under such agreements. This Agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or YRCW may decide to terminate the employment relationship at any time for any reason.\nThis Agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs,\nexecutors, assigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your\nemployment with YRCW, regardless of the manner of such termination.\nEach provision of this Agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to\nthe extent reasonable under the circumstances. In any case, the other provisions of this Agreement will not be affected.\n[CONTINUED ON THE NEXT PAGE]\n3\nThis Agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral\nor written, with regard to the subject matter hereof. This Agreement is an integrated document and may not be modified or amended except in a\nwriting signed by the parties hereto or their successors in interest.\nI have signed and dated this Agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis Agreement.\nPhillip J. Gaines\nPresident, Yellow Transportation\nDate:\n4\nNovember 24, 2009\nPhil Gaines\nYRC Worldwide Inc.\n10990 Roe Avenue\nOverland Park, KS 66211\nDear Phil:\nI am very glad to confirm with you that the Board of Directors recently approved a new payout schedule for the consideration you are to receive for\nthe Retention Payment, Non-Competition, Non-Solicitation, Non-Disparagement and Confidentiality Agreement you signed earlier this year.\nInstead of receiving one times your base of $340,000.00 in July, 2010 you will now receive three equal payments of $113,333.00 in January, April\nand July of 2010. If you voluntarily resign from the company before July 1, 2010 you will be required to repay any of the monies paid to you under\nthis revised schedule. All other terms and conditions of the original agreement remain unchanged.\nThank you for your continued loyalty, commitment and extraordinary contributions to our company as we execute our comprehensive recovery plan.\nSincerely,\nJim Kissinger\nEVP – Human Resources\n5	EX-10.38 10 dex1038.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.38\nRETENTION PAYMENT, NON-COMPETITION, NON-SOLICITATION,\nNON-DISPARAGEMENT, AND CONFIDENTIALITY AGREEMENT\nPhillip J. Gaines:\nYRC Worldwide, Inc., a Delaware corporation (“YRCW?), has determined that you are important to the operation of the business of YRCW\nand its affiliates As such, YRCW desires to provide you with an incentive to remain employed with YRCW through and after July 1, 2010 (the\n“Vesting Date”). Accordingly, YRCW is pleased to offer you the opportunity to receive the Retention Payment (defined below) described in this\nRetention Payment, Non-Competition, Non-Solicitation, Non-Disparagement, and Confidentiality Agreement (this “Agreement”), subject to the\nterms and conditions set forth below.\n \nIn addition, in the course of your work, you will, or have, become aware of information of a confidential nature pertaining to the business of\nYRCW. YRCW maintains policies and procedures with respect to the use and the dissemination of confidential information. Your employment\ncreates a relationship of confidence and trust between you and YRCW with respect to any information applicable to the business of YRCW which\nmay be, or has been, made known to you by YRCW or learned by you in the course of your work. You understand that you have an obligation to\npreserve the confidentiality of such information and use it only for the purpose for which it was obtained.\nIn consideration for the Retention Payment and confidential information, the receipt and adequacy of which are hereby acknowledged, you\nunderstand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you expressly agree that:\n1.  Retention Payment. Subject to the terms and restrictions set forth in this paragraph, YRCW will pay you a retention payment in an amount\nequal to one times your base salary $340,000 as of the date of this Agreement (the “Retention Payment”); provided, you are still employed by\nYRCW on the Vesting Date. Unless otherwise provided within this Agreement, the Retention Payment will vest and become payable, less\napplicable tax withholding or other deductions, on the Vesting Date. If your employment with YRCW ends as a result of your resignation for\nany reason or your termination by YRCW with Cause before the Vesting Date, the Retention Payment will not vest and you will not be paid\nthe Retention Payment. If your employment is terminated by YRCW without Cause before the Vesting Date, the Retention Payment will vest\nand will be paid to you, less applicable tax withholding or other deductions, six months following your termination by YRCW without Cause;\nprovided, you have not breached any applicable provision of this Agreement, in which case the Retention Payment will not vest and YRCW\nwill withhold payment of the Retention Payment as damages for any such breach. For purposes of this Agreement, “Cause” shall mean any of\nthe following: (i) your conviction of a felony involving acts of dishonesty, fraud, or moral turpitude; (ii) your willful or repeated failure to\nperform your duties following 30 days notice of such failure and your failure to cure within such 30 days; (iii) willful misconduct material to\nyour employment; (iv) material breach of YRCW policies or rules of which you have been made aware following 30 days notice of such\nbreach and your failure to cure within such 30 days; (v) your material and demonstrable dishonesty related to your employment; or (vi) gross\nnegligence in the performance of your job duties. For purposes of the Agreement, your employment with YRCW will not be considered\nterminated without Cause unless the termination without Cause meets the requirements of a “separation from service” as defined in\nSection 409A.\nNon-Competition. You acknowledge that the agreements and covenants contained in this Section 2 of this Agreement are essential to protect\nthe value of the business and assets of YRCW and its affiliates and by your prior and continued employment with YRCW you have obtained,\nand will continue to obtain, valuable confidential information, knowledge, contacts, and experience, and there is a substantial probability that\nsuch confidential information, knowledge, contacts, and experience could be used to the substantial advantage of a competitor of YRCW or its\naffiliates to YRCW’s or its affiliates’ substantial detriment. Therefore, you agree that so long as you are employed by YRCW and for the\nperiod commencing as of the day of your termination with YRCW, whether with or without Cause and whether before or after receipt of the\nRetention Payment, and ending 6 months following termination of your employment with YRCW (the “Restricted Period”), you shall not, and\nshall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of YRCW or any of its affiliates),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of YRCW or any of its affiliates (the “Business”) in any geographic region for which you had direct or indirect responsibility on\nbehalf of YRCW or any of its affiliates or in any geographic region for which you had confidential information of YRCW or any of its\naffiliates.\nNon-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of YRCW or its affiliates): (i) cause, solicit, induce, or encourage any employees, consultants, or contractors of YRCW or its\naffiliates to leave such employment or service, (ii) hire, employ, or otherwise engage any such individual, (iii) cause, induce, or encourage any\nactual or prospective client, customer, supplier, or licensor of YRCW or its affiliates (including any existing or former customers of YRCW or\nits affiliates) to terminate or modify any such actual or prospective business relationship with YRCW or its affiliates, or (iv) develop a business\nrelationship with any actual or prospective client, customer, supplier, or licensor to cause, induce, or encourage such individual to become a\nclient, customer, supplier, or licensor of any business in which you are engaged that is competitive with the Business. The restrictions relating\nto actual or prospective clients, customers, suppliers, or licensors in this paragraph apply only to (a) those actual or prospective clients,\ncustomers, suppliers, or licensors with whom you had contact on behalf of YRCW during the last 12 months of your employment with YRCW,\nor (b) any of YRCW’s actual or prospective clients, customers, suppliers, or licensors about whom you had any confidential information\nduring the last 12 months of your employment with YRCW. In no event shall it be a violation of this Section 3 to engage in solicitations\nincidental to general advertising or other general solicitation in the ordinary course not specifically targeted at such persons or to employ any\nperson not solicited in violation hereof.\nNon-Disparagement. You agree that, during your employment with YRCW or at any time thereafter, you shall not make any public statement\nthat is materially disparaging of the business of YRCW or its affiliates, or to the business reputation of any of the executive officers of YRCW\nor its affiliates or any of the employees of YRCW or its affiliates who are known to you to be employees of YRCW or its affiliates at the time\nof any such public statement. Your obligations under this Section 4 shall not apply to disclosures required by applicable law, regulation, or\norder of a court or governmental agency.\nConfidentiality. All information related to the business of YRCW or its affiliates that may be obtained by you from any source as a result of\nyour employment shall be considered as confidential. Materials contained in customers’ files should always be regarded as confidential. You\nshould always maintain appropriate administrative, technical, and physical safeguards over records in your possession to prevent unauthorized\naccess. Information regarding strategic or tactical business plans; undisclosed business, operational, or financial data; ideas, processes,\nmethods, techniques, systems, non-public information, models, devices, programs, computer software, or related information; documents\nrelating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending, or\nthreatened legal dispute; pricing or cost data; the identity, reports, or analysis of business prospects; business transactions that are contemplated\nor planned; research data; personnel information or data; identities of users or purchasers of YRCW?’s or its affiliates’ products or services; or\nany business methods, operations, or results of YRCW or its affiliates may not be disclosed to competitors, to the public, or to any person, nor\ncan the preceding information be otherwise used except as your duties at YRCW may require or with the prior written approval of an\nauthorized senior officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software, or\nother strategies which you develop in the course of performing responsibilities or using YRCW equipment or facilities are the property of\nYRCW. Upon termination of your employment, you are required to deliver to YRCW all documents, recordings, and other tangible records\n(including tapes, discs, or other similar media) that contain or are derived from YRCW?s or its affiliates’ confidential information.\nReasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\narbitration panel or court of competent jurisdiction may reform such obligations to the extent necessary to enforce them under applicable law.\nYou further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and irreparable damage to\nYRCW and its affiliates. Accordingly, you agree that upon any actual or threatened violation of any of these obligations and covenants (i) you\nare required to return the Retention Payment to YRCW, and (ii) YRCW is entitled to withhold payment of the Retention Payment, to injunctive\nrelief in any court of competent jurisdiction, and to any other remedies it may have.\nThe provisions of this Agreement are in addition to the provisions in any written employment agreement between YRCW and you, and will\nnot affect your responsibilities or any other rights of YRCW under such agreements. This Agreement is not a contract of continuing employment. Employment is for no fixed term, and either you or YRCW may decide to terminate the employment relationship at any time for any reason. This Agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs,\nexecutors, assigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your employment with YRCW, regardless of the manner of such termination. Each provision of this Agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to\nthe extent reasonable under the circumstances. In any case, the other provisions of this Agreement will not be affected. [CONTINUED ON THE NEXT PAGE]\n3\nThis Agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral\nor written, with regard to the subject matter hereof. This Agreement is an integrated document and may not be modified or amended except in a\nwriting signed by the parties hereto or their successors in interest.\nI have signed and dated this Agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis Agreement.\nPhillip J. Gaines\nPresident, Yellow Transportation\nDate:\nNovember 24, 2009\nPhil Gaines\nYRC Worldwide Inc.\n10990 Roe Avenue\nOverland Park, KS 66211\nDear Phil:\nI am very glad to confirm with you that the Board of Directors recently approved a new payout schedule for the consideration you are to receive for\nthe Retention Payment, Non-Competition, Non-Solicitation, Non-Disparagement and Confidentiality Agreement you signed earlier this year.\nInstead of receiving one times your base of $340,000.00 in July, 2010 you will now receive three equal payments of $113,333.00 in January, April\nand July of 2010. If you voluntarily resign from the company before July 1, 2010 you will be required to repay any of the monies paid to you under\nthis revised schedule. All other terms and conditions of the original agreement remain unchanged.\nThank you for your continued loyalty, commitment and extraordinary contributions to our company as we execute our comprehensive recovery plan.\nSincerely,\nJim Kissinger\nEVP — Human Resources	EX-10.38 10 lex1038.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.38\nRETENTION PAYMENT, NON-COMPETITION, NON-SOLICITATION,\nNON-DISPARAGEMENT, AND CONFIDENTIALITY AGREEMENT\nPhillip J. Gaines:\nYRC Worldwide, Inc., a Delaware corporation ("YRCW"), has determined that you are important to the operation of the business of YRCW\nand its affiliates As such, YRCW desires to provide you with an incentive to remain employed with YRCW through and after July 1, 2010 (the\n"Vesting Date"). Accordingly, YRCW is pleased to offer you the opportunity to receive the Retention Payment (defined below) described in this\nRetention Payment, Non-Competition, Non-Solicitation, Non-Disparagement, and Confidentiality Agreement (this "Agreement"), subject to the\nterms and conditions set forth below.\nIn addition, in the course of your work, you will, or have, become aware of information of a confidential nature pertaining to the business of\nYRCW. YRCW maintains policies and procedures with respect to the use and the dissemination of confidential information. Your employment\ncreates a relationship of confidence and trust between you and YRCW with respect to any information applicable to the business of YRCW which\nmay be, or has been, made known to you by YRCW or learned by you in the course of your work. You understand that you have an obligation to\npreserve the confidentiality of such information and use it only for the purpose for which it was obtained.\nIn consideration for the Retention Payment and confidential information, the receipt and adequacy of which are hereby acknowledged, you\nunderstand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you expressly agree that:\n1.\nRetention Payment. Subject to the terms and restrictions set forth in this paragraph, YRCW will pay you a retention payment in an amount\nequal to one times your base salary $340,000 as of the date of this Agreement (the "Retention Payment"); provided, you are still employed by\nYRCW on the Vesting Date. Unless otherwise provided within this Agreement, the Retention Payment will vest and become payable, less\napplicable tax withholding or other deductions, on the Vesting Date. If your employment with YRCW ends as a result of your resignation for\nany reason or your termination by YRCW with Cause before the Vesting Date, the Retention Payment will not vest and you will not be paid\nthe Retention Payment. If your employment is terminated by YRCW without Cause before the Vesting Date, the Retention Payment will vest\nand will be paid to you, less applicable tax withholding or other deductions, six months following your termination by YRCW without Cause;\nprovided, you have not breached any applicable provision of this Agreement, in which case the Retention Payment will not vest and YRCW\nwill withhold payment of the Retention Payment as damages for any such breach. For purposes of this Agreement, "Cause" shall mean any of\nthe following: (i) your conviction of a felony involving acts of dishonesty, fraud, or moral turpitude; (ii) your willful or repeated failure to\nperform your duties following 30 days notice of such failure and your failure to cure within such 30 days; (iii) willful misconduct material to\nyour employment; (iv) material breach of YRCW policies or rules of which you have been made aware following 30 days notice of such\nbreach and your failure to cure within such 30 days; (v) your material and demonstrable dishonesty related to your employment; or (vi) gross\nnegligence in the performance of your job duties. For purposes of the Agreement, your employment with YRCW will not be considered\nterminated without Cause unless the termination without Cause meets the requirements of a "separation from service" as defined in\nSection 409A.\n1\n2.\nNon-Competition. You acknowledge that the agreements and covenants contained in this Section 2 of this Agreement are essential to protect\nthe value of the business and assets of YRCW and its affiliates and by your prior and continued employment with YRCW you have obtained,\nand will continue to obtain, valuable confidential information, knowledge, contacts, and experience, and there is a substantial probability that\nsuch confidential information, knowledge, contacts, and experience could be used to the substantial advantage of a competitor of YRCW or its\naffiliates to YRCW's or its affiliates' substantial detriment. Therefore, you agree that so long as you are employed by YRCW and for the\nperiod commencing as of the day of your termination with YRCW, whether with or without Cause and whether before or after receipt of the\nRetention Payment, and ending 6 months following termination of your employment with YRCW (the "Restricted Period"), you shall not, and\nshall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of YRCW or any of its affiliates),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of YRCW or any of its affiliates (the "Business") in any geographic region for which you had direct or indirect responsibility on\nbehalf of YRCW or any of its affiliates or in any geographic region for which you had confidential information of YRCW or any of\nits\naffiliates.\n3.\nNon-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of YRCW or its affiliates) (i) cause, solicit, induce, or encourage any employees, consultants, or contractors of\nYRCW\nor\nits\naffiliates to leave such employment or service, (ii) hire, employ, or otherwise engage any such individual, (iii) cause, induce, or encourage any\nactual or prospective client, customer, supplier, or licensor of YRCW or its affiliates (including any existing or former customers of YRCW or\nits affiliates) to terminate or modify any such actual or prospective business relationship with YRCW or its affiliates, or (iv) develop a business\nrelationship with any actual or prospective client, customer, supplier, or licensor to cause, induce, or encourage such individual to become a\nclient, customer, supplier, or licensor of any business in which you are engaged that is competitive with the Business. The restrictions relating\nto actual or prospective clients, customers, suppliers, or licensors in this paragraph apply only to (a) those actual or prospective clients,\ncustomers, suppliers, or licensors with whom you had contact on behalf of YRCW during the last 12 months of your employment with YRCW,\nor (b) any of YRCW's actual or prospective clients, customers, suppliers, or licensors about whom you had any confidential information\nduring the last 12 months of your employment with YRCW. In no event shall it be a violation of this Section 3 to engage in solicitations\nincidental to general advertising or other general solicitation in the ordinary course not specifically targeted at such persons or to employ any\nperson not solicited in violation hereof.\n4.\nNon-Disparagement. You agree that, during your employment with YRCW or at any time thereafter, you shall not make any public statement\nthat is materially disparaging of the business of YRCW or its affiliates, or to the business reputation of any of the executive officers of YRCW\nor\nits affiliates or any of the employees of YRCW or its affiliates who are known to you to be employees of YRCW or its affiliates at the time\nof any such public statement. Your obligations under this Section 4 shall not apply to disclosures required by applicable law, regulation, or\norder of a court or governmental agency.\n2\n5. Confidentiality.. All information related to the business of YRCW or its affiliates that may be obtained by you from any source as a result of\nyour employment shall be considered as confidential. Materials contained in customers' files should always be regarded as confidential. You\nshould always maintain appropriate administrative, technical, and physical safeguards over records in your possession to prevent unauthorized\naccess. Information regarding strategic or tactical business plans; undisclosed business, operational, or financial data; ideas, processes,\nmethods, techniques, systems, non-public information, models, devices, programs, computer software, or related information; documents\nrelating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending, or\nthreatened legal dispute; pricing or cost data; the identity, reports, or analysis of business prospects; business transactions that are contemplated\nor planned; research data; personnel information or data; identities of users or purchasers of YRCW's or its affiliates' products or services; or\nany business methods, operations, or results of YRCW or its affiliates may not be disclosed to competitors, to the public, or to any person, nor\ncan the preceding information be otherwise used except as your duties at YRCW may require or with the prior written approval of an\nauthorized senior officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software, or\nother strategies which you develop in the course of performing responsibilities or using YRCW equipment or facilities are the property of\nYRCW. Upon termination of your employment, you are required to deliver to YRCW all documents, recordings, and other tangible records\n(including tapes, discs, or other similar media) that contain or are derived from YRCW's or its affiliates' confidential information.\n6.\nReasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\narbitration panel or court of competent jurisdiction may reform such obligations to the extent necessary to enforce them under applicable\nlaw.\nYou further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and irreparable damage to\nYRCW and its affiliates. Accordingly, you agree that upon any actual or threatened violation of any of these obligations and covenants (i) you\nare required to return the Retention Payment to YRCW, and (ii) YRCW is entitled to withhold payment of the Retention Payment, to injunctive\nrelief in any court of competent jurisdiction, and to any other remedies it may have.\nThe provisions of this Agreement are in addition to the provisions in any written employment agreement between YRCW and you, and will\nnot affect your responsibilities or any other rights of YRCW under such agreements. This Agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or YRCW may decide to terminate the employment relationship at any time for any reason.\nThis Agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs,\nexecutors, assigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your\nemployment with YRCW, regardless of the manner of such termination.\nEach provision of this Agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to\nthe extent reasonable under the circumstances. In any case, the other provisions of this Agreement will not be affected.\n[CONTINUED ON THE NEXT PAGE]\n3\nThis Agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral\nor written, with regard to the subject matter hereof. This Agreement is an integrated document and may not be modified or amended except in a\nwriting signed by the parties hereto or their successors in interest.\nI have signed and dated this Agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis Agreement.\nPhillip J. Gaines\nPresident, Yellow Transportation\nDate:\n4\nNovember 24, 2009\nPhil Gaines\nYRC Worldwide Inc.\n10990 Roe Avenue\nOverland Park, KS 66211\nDear Phil:\nI am very glad to confirm with you that the Board of Directors recently approved a new payout schedule for the consideration you are to receive for\nthe Retention Payment, Non-Competition, Non-Solicitation, Non-Disparagement and Confidentiality Agreement you signed earlier this year.\nInstead of receiving one times your base of $340,000.00 in July, 2010 you will now receive three equal payments of $113,333.00 in January, April\nand July of 2010. If you voluntarily resign from the company before July 1, 2010 you will be required to repay any of the monies paid to you under\nthis revised schedule. All other terms and conditions of the original agreement remain unchanged.\nThank you for your continued loyalty, commitment and extraordinary contributions to our company as we execute our comprehensive recovery plan.\nSincerely,\nJim Kissinger\nEVP - Human Resources\n5	EX-10.38 10 dex1038.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.38\nRETENTION PAYMENT, NON-COMPETITION, NON-SOLICITATION,\nNON-DISPARAGEMENT, AND CONFIDENTIALITY AGREEMENT\nPhillip J. Gaines:\nYRC Worldwide, Inc., a Delaware corporation (“YRCW”), has determined that you are important to the operation of the business of YRCW\nand its affiliates As such, YRCW desires to provide you with an incentive to remain employed with YRCW through and after July 1, 2010 (the\n“Vesting Date”). Accordingly, YRCW is pleased to offer you the opportunity to receive the Retention Payment (defined below) described in this\nRetention Payment, Non-Competition, Non-Solicitation, Non-Disparagement, and Confidentiality Agreement (this “Agreement”), subject to the\nterms and conditions set forth below.\nIn addition, in the course of your work, you will, or have, become aware of information of a confidential nature pertaining to the business of\nYRCW. YRCW maintains policies and procedures with respect to the use and the dissemination of confidential information. Your employment\ncreates a relationship of confidence and trust between you and YRCW with respect to any information applicable to the business of YRCW which\nmay be, or has been, made known to you by YRCW or learned by you in the course of your work. You understand that you have an obligation to\npreserve the confidentiality of such information and use it only for the purpose for which it was obtained.\nIn consideration for the Retention Payment and confidential information, the receipt and adequacy of which are hereby acknowledged, you\nunderstand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you expressly agree that:\n1. Retention Payment. Subject to the terms and restrictions set forth in this paragraph, YRCW will pay you a retention payment in an amount\nequal to one times your base salary $340,000 as of the date of this Agreement (the “Retention Payment”); provided, you are still employed by\nYRCW on the Vesting Date. Unless otherwise provided within this Agreement, the Retention Payment will vest and become payable, less\napplicable tax withholding or other deductions, on the Vesting Date. If your employment with YRCW ends as a result of your resignation for\nany reason or your termination by YRCW with Cause before the Vesting Date, the Retention Payment will not vest and you will not be paid\nthe Retention Payment. If your employment is terminated by YRCW without Cause before the Vesting Date, the Retention Payment will vest\nand will be paid to you, less applicable tax withholding or other deductions, six months following your termination by YRCW without Cause;\nprovided, you have not breached any applicable provision of this Agreement, in which case the Retention Payment will not vest and YRCW\nwill withhold payment of the Retention Payment as damages for any such breach. For purposes of this Agreement, “Cause” shall mean any of\nthe following: (i) your conviction of a felony involving acts of dishonesty, fraud, or moral turpitude; (ii) your willful or repeated failure to\nperform your duties following 30 days notice of such failure and your failure to cure within such 30 days; (iii) willful misconduct material to\nyour employment; (iv) material breach of YRCW policies or rules of which you have been made aware following 30 days notice of such\nbreach and your failure to cure within such 30 days; (v) your material and demonstrable dishonesty related to your employment; or (vi) gross\nnegligence in the performance of your job duties. For purposes of the Agreement, your employment with YRCW will not be considered\nterminated without Cause unless the termination without Cause meets the requirements of a “separation from service” as defined in\nSection 409A.\n1\n2. Non-Competition. You acknowledge that the agreements and covenants contained in this Section 2 of this Agreement are essential to protect\nthe value of the business and assets of YRCW and its affiliates and by your prior and continued employment with YRCW you have obtained,\nand will continue to obtain, valuable confidential information, knowledge, contacts, and experience, and there is a substantial probability that\nsuch confidential information, knowledge, contacts, and experience could be used to the substantial advantage of a competitor of YRCW or its\naffiliates to YRCW’s or its affiliates’ substantial detriment. Therefore, you agree that so long as you are employed by YRCW and for the\nperiod commencing as of the day of your termination with YRCW, whether with or without Cause and whether before or after receipt of the\nRetention Payment, and ending 6 months following termination of your employment with YRCW (the “Restricted Period”), you shall not, and\nshall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of YRCW or any of its affiliates),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of YRCW or any of its affiliates (the “Business”) in any geographic region for which you had direct or indirect responsibility on\nbehalf of YRCW or any of its affiliates or in any geographic region for which you had confidential information of YRCW or any of its\naffiliates.\n3. Non-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of YRCW or its affiliates): (i) cause, solicit, induce, or encourage any employees, consultants, or contractors of YRCW or its\naffiliates to leave such employment or service, (ii) hire, employ, or otherwise engage any such individual, (iii) cause, induce, or encourage any\nactual or prospective client, customer, supplier, or licensor of YRCW or its affiliates (including any existing or former customers of YRCW or\nits affiliates) to terminate or modify any such actual or prospective business relationship with YRCW or its affiliates, or (iv) develop a business\nrelationship with any actual or prospective client, customer, supplier, or licensor to cause, induce, or encourage such individual to become a\nclient, customer, supplier, or licensor of any business in which you are engaged that is competitive with the Business. The restrictions relating\nto actual or prospective clients, customers, suppliers, or licensors in this paragraph apply only to (a) those actual or prospective clients,\ncustomers, suppliers, or licensors with whom you had contact on behalf of YRCW during the last 12 months of your employment with YRCW,\nor (b) any of YRCW’s actual or prospective clients, customers, suppliers, or licensors about whom you had any confidential information\nduring the last 12 months of your employment with YRCW. In no event shall it be a violation of this Section 3 to engage in solicitations\nincidental to general advertising or other general solicitation in the ordinary course not specifically targeted at such persons or to employ any\nperson not solicited in violation hereof.\n4. Non-Disparagement. You agree that, during your employment with YRCW or at any time thereafter, you shall not make any public statement\nthat is materially disparaging of the business of YRCW or its affiliates, or to the business reputation of any of the executive officers of YRCW\nor its affiliates or any of the employees of YRCW or its affiliates who are known to you to be employees of YRCW or its affiliates at the time\nof any such public statement. Your obligations under this Section 4 shall not apply to disclosures required by applicable law, regulation, or\norder of a court or governmental agency.\n2\n5. Confidentiality. All information related to the business of YRCW or its affiliates that may be obtained by you from any source as a result of\nyour employment shall be considered as confidential. Materials contained in customers’ files should always be regarded as confidential. You\nshould always maintain appropriate administrative, technical, and physical safeguards over records in your possession to prevent unauthorized\naccess. Information regarding strategic or tactical business plans; undisclosed business, operational, or financial data; ideas, processes,\nmethods, techniques, systems, non-public information, models, devices, programs, computer software, or related information; documents\nrelating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending, or\nthreatened legal dispute; pricing or cost data; the identity, reports, or analysis of business prospects; business transactions that are contemplated\nor planned; research data; personnel information or data; identities of users or purchasers of YRCW’s or its affiliates’ products or services; or\nany business methods, operations, or results of YRCW or its affiliates may not be disclosed to competitors, to the public, or to any person, nor\ncan the preceding information be otherwise used except as your duties at YRCW may require or with the prior written approval of an\nauthorized senior officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software, or\nother strategies which you develop in the course of performing responsibilities or using YRCW equipment or facilities are the property of\nYRCW. Upon termination of your employment, you are required to deliver to YRCW all documents, recordings, and other tangible records\n(including tapes, discs, or other similar media) that contain or are derived from YRCW’s or its affiliates’ confidential information.\n6. Reasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\narbitration panel or court of competent jurisdiction may reform such obligations to the extent necessary to enforce them under applicable law.\nYou further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and irreparable damage to\nYRCW and its affiliates. Accordingly, you agree that upon any actual or threatened violation of any of these obligations and covenants (i) you\nare required to return the Retention Payment to YRCW, and (ii) YRCW is entitled to withhold payment of the Retention Payment, to injunctive\nrelief in any court of competent jurisdiction, and to any other remedies it may have.\nThe provisions of this Agreement are in addition to the provisions in any written employment agreement between YRCW and you, and will\nnot affect your responsibilities or any other rights of YRCW under such agreements. This Agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or YRCW may decide to terminate the employment relationship at any time for any reason.\nThis Agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs,\nexecutors, assigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your\nemployment with YRCW, regardless of the manner of such termination.\nEach provision of this Agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to\nthe extent reasonable under the circumstances. In any case, the other provisions of this Agreement will not be affected.\n[CONTINUED ON THE NEXT PAGE]\n3\nThis Agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral\nor written, with regard to the subject matter hereof. This Agreement is an integrated document and may not be modified or amended except in a\nwriting signed by the parties hereto or their successors in interest.\nI have signed and dated this Agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis Agreement.\nPhillip J. Gaines\nPresident, Yellow Transportation\nDate:\n4\nNovember 24, 2009\nPhil Gaines\nYRC Worldwide Inc.\n10990 Roe Avenue\nOverland Park, KS 66211\nDear Phil:\nI am very glad to confirm with you that the Board of Directors recently approved a new payout schedule for the consideration you are to receive for\nthe Retention Payment, Non-Competition, Non-Solicitation, Non-Disparagement and Confidentiality Agreement you signed earlier this year.\nInstead of receiving one times your base of $340,000.00 in July, 2010 you will now receive three equal payments of $113,333.00 in January, April\nand July of 2010. If you voluntarily resign from the company before July 1, 2010 you will be required to repay any of the monies paid to you under\nthis revised schedule. All other terms and conditions of the original agreement remain unchanged.\nThank you for your continued loyalty, commitment and extraordinary contributions to our company as we execute our comprehensive recovery plan.\nSincerely,\nJim Kissinger\nEVP – Human Resources\n5
a7f87c6d89e0c31214231c0f89a10476.pdf	effective_date jurisdiction party term	EX-10 .21 4 nke-5312014xexhibit1021.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGMT\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJeanne Jackson ("EMPLOYEE")\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries, affiliates, successors and assigns. ("NIKE"):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment with NIKE and is a condition\nof such employment. Employee acknowledges that he/she was informed in a written job offer at least two weeks before starting work that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of employment.\nB. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”).\nIt is anticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the\ncompany and this Agreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the company or it is\nsuperseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe damage to\nNIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE's\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or\notherwise, and for 1 year thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or participate\nin the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear, athletic apparel or sports equipment, sports electronics/technology and sports accessories\nbusiness, or any other business which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a “Competitor”).\nThis provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement,\njudicial or other action, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE’s breach. In the event EMPLOYEE receives such additional compensation\nafter any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written\nrequest by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction\nPeriod or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of\nthe Restriction Period is waived or the definition of Competitor is limited, NIKE shall not be obligated to pay EMPLOYEE for any period of\ntime as to which the covenant not to compete has been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE\nterminate EMPLOYEE’s employment without cause and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly payment equal to one hundred percent (100%) of EMPLOYEE's last monthly base salary while the Restriction Period is in effect.\nExcept where prohibited by law, if Nike terminates EMPLOYEE for “cause,” no additional consideration will be owed to EMPLOYEE under\nthis Agreement and the covenant not to compete will remain enforceable. For purposes of this Agreement only, “cause” shall mean: i)\ninsubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such involvement in illegal activities violates Nike policies,\nplaces Nike at risk or has or could damage Nike’s reputation in the community or any of its related or subsidiary companies, (iv) violation of\nNike’s anti-harassment or anti-discrimination policy, and (v) gross neglect of EMPLOYEE’S duties or willful misconduct that, in either case,\nresults in\neconomic harm to Nike or harm to Nike’s reputation. Nothing in this paragraph or Agreement alters the employment-at-will relationship\nbetween Nike and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly severance payment equal to fifty percent (50%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. The\nfirst payment to EMPLOYEE of additional consideration shall follow on the next applicable pay period after the election to enforce the non-\ncompetition agreement, payable in accordance with NIKE’s payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s\nnew employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period,\nwherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protected Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in\nverbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes trade secrets and competitively sensitive business or professional information (regardless of whether\nsuch information constitutes a trade secret) relating to NIKE’s research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans or strategy, product development plants, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and personnel\ninformation.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, EMPLOYEE shall be permitted to\nretain as part of his or her personal portfolio copies of the EMPLOYEE’S original artwork and designs, provided the EMPLOYEE presents those\npersonal portfolio copies to his or her supervisor for review and approval and provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by\nclear and convincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected\nInformation for any purpose outside the scope of EMPLOYEE's employment with NIKE or disclose any Protected Information to any third\nperson or organization without the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior\nwritten consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that\nthere is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment,\nEMPLOYEE shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings, digital files, or\nother media containing Protected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE\nwill not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not\nsuch employment is pursuant to a written agreement or is at will or any independent contractor working for Nike.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled\nto an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid\nby NIKE pursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the\nreason for termination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically\nreferred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable\nor invalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according\nto the laws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and\nvenue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE NIKE, Inc.\n/s/ Jeanne Jackson By / s/ Mark Parker\nName: Mark Parker\nDATE March 4, 2009\nTitle: President/CEO Nike, Inc.	EX-10.21 4 nke-5312014xexhibit1021.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGMT\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJeanne Jackson ("EMPLOYEE")\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries, affiliates, successors and assigns. ("NIKE"):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment with NIKE and is a condition\nof such employment. Employee acknowledges that he/she was informed in a written job offer at least two weeks before starting work that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of employment.\nB. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”).\nIt is anticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the\ncompany and this Agreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the company or it is\nsuperseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe damage to\nNIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE's\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or\notherwise, and for 1 year thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or participate\nin the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear, athletic apparel or sports equipment, sports electronics/technology and sports accessories\nbusiness, or any other business which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a “Competitor”).\nThis provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement,\njudicial or other action, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE’s breach. In the event EMPLOYEE receives such additional compensation\nafter any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written\nrequest by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction\nPeriod or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of\nthe Restriction Period is waived or the definition of Competitor is limited, NIKE shall not be obligated to pay EMPLOYEE for any period of\ntime as to which the covenant not to compete has been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE\nterminate EMPLOYEE’s employment without cause and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly payment equal to one hundred percent (100%) of EMPLOYEE's last monthly base salary while the Restriction Period is in effect.\nExcept where prohibited by law, if Nike terminates EMPLOYEE for “cause,” no additional consideration will be owed to EMPLOYEE under\nthis Agreement and the covenant not to compete will remain enforceable. For purposes of this Agreement only, “cause” shall mean: i)\ninsubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such involvement in illegal activities violates Nike policies,\nplaces Nike at risk or has or could damage Nike’s reputation in the community or any of its related or subsidiary companies, (iv) violation of\nNike’s anti-harassment or anti-discrimination policy, and (v) gross neglect of EMPLOYEE’S duties or willful misconduct that, in either case,\nresults in\neconomic harm to Nike or harm to Nike’s reputation. Nothing in this paragraph or Agreement alters the employment-at-will relationship\nbetween Nike and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly severance payment equal to fifty percent (50%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. The\nfirst payment to EMPLOYEE of additional consideration shall follow on the next applicable pay period after the election to enforce the non-\ncompetition agreement, payable in accordance with NIKE’s payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s\nnew employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period,\nwherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protected Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in\nverbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes trade secrets and competitively sensitive business or professional information (regardless of whether\nsuch information constitutes a trade secret) relating to NIKE’s research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans or strategy, product development plants, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and personnel\ninformation.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, EMPLOYEE shall be permitted to\nretain as part of his or her personal portfolio copies of the EMPLOYEE’S original artwork and designs, provided the EMPLOYEE presents those\npersonal portfolio copies to his or her supervisor for review and approval and provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by\nclear and convincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected\nInformation for any purpose outside the scope of EMPLOYEE's employment with NIKE or disclose any Protected Information to any third\nperson or organization without the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior\nwritten consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that\nthere is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment,\nEMPLOYEE shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings, digital files, or\nother media containing Protected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE\nwill not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not\nsuch employment is pursuant to a written agreement or is at will or any independent contractor working for Nike.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled\nto an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid\nby NIKE pursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the\nreason for termination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically\nreferred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable\nor invalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according\nto the laws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and\nvenue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE NIKE, Inc.\n/s/ Jeanne Jackson By /s/ Mark Parker\nName: Mark Parker\nDATE March 4, 2009 Title: President/CEO Nike, Inc.	EX-10.21 4nke-5312014xexhibit1021.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGMT\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJeanne Jackson ("EMPLOYEE")\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries, affiliates, successors and assigns. ("NIKE"):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment with NIKE and is a condition\nof such employment. Employee acknowledges that he/she was informed in a written job offer at least two weeks before starting work that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of employment.\nB. Over the course of EMPLOYEE'S employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE's business and not generally known to the public as defined below ("Protected Information").\nIt is anticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the\ncompany and this Agreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the company or it is\nsuperseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe damage to\nNIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE's\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE'S employment by NIKE, under the terms of any employment contract or\notherwise, and for 1 year thereafter, (the "Restriction Period"), EMPLOYEE will not directly or indirectly, own, manage, control, or participate\nin the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear, athletic apparel or sports equipment, sports electronics/technology and sports accessories\nbusiness, or any other business which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a "Competitor").\nThis provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement,\njudicial or other action, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE'S breach. In the event EMPLOYEE receives such additional compensation\nafter any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written\nrequest by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction\nPeriod or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of\nthe Restriction Period is waived or the definition of Competitor is limited, NIKE shall not be obligated to pay EMPLOYEE for any period of\ntime as to which the covenant not to compete has been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE\nterminate EMPLOYEE'S employment without cause and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly payment equal to one hundred percent (100%) of EMPLOYEE's last monthly base salary while the Restriction Period is in effect.\nExcept where prohibited by law, if Nike terminates EMPLOYEE for "cause," no additional consideration will be owed to EMPLOYEE under\nthis Agreement and the covenant not to compete will remain enforceable. For purposes of this Agreement only, "cause" shall mean:\ni)\ninsubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such involvement in illegal activities violates Nike policies,\nplaces Nike at risk or has or could damage Nike's reputation in the community or any of its related or subsidiary companies, (iv) violation of\nNike's anti-harassment or anti-discrimination policy, and (v) gross neglect of EMPLOYEE'S duties or willful misconduct that, in either case,\nresults in\neconomic harm to Nike or harm to Nike's reputation. Nothing in this paragraph or Agreement alters the employment-at-will relationship\nbetween Nike and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly severance payment equal to fifty percent (50%) of EMPLOYEE'S last monthly base salary while the Restriction Period is in effect. The\nfirst payment to EMPLOYEE of additional consideration shall follow on the next applicable pay period after the election to enforce the non-\ncompetition agreement, payable in accordance with NIKE's payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE'S\nnew employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period,\nwherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement\n(a) Protected Information Defined. "Protected Information" shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in\nverbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting\nthe\nforegoing, Protected Information includes trade secrets and competitively sensitive business or professional information (regardless of whether\nsuch information constitutes a trade secret) relating to NIKE'S research and development activities, its intellectual property and the filing\nor\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans or strategy, product development plants, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and personne\ninformation.\n(b)\nExcluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, EMPLOYEE shall be permitted\nto\nretain as part of his or her personal portfolio copies of the EMPLOYEE'S original artwork and designs, provided the EMPLOYEE presents those\npersonal portfolio copies to his or her supervisor for review and approval and provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by\nclear and convincing evidence.\n(c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected\nInformation for any purpose outside the scope of EMPLOYEE'S employment with NIKE or disclose any Protected Information to any third\nperson or organization without the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior\nwritten consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that\nthere is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment,\nEMPLOYEE shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings, digital files, or\nother media containing Protected Information, and all copies thereof, then in EMPLOYEE'S possession or under EMPLOYEE'S control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE\nwill not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company\nor\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or\nnot\nsuch employment is pursuant to a written agreement or is at will or any independent contractor working for Nike.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled\nto\nan accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid\nby NIKE pursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights\nor\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE'S employment, regardless of the\nreason for termination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically\nreferred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable\nor invalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according\nto the laws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and\nvenue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE NIKE, Inc.\n/s/ Jeanne Jackson By / s/ Mark Parker\nName: Mark Parker\nDATE March 4, 2009\nTitle: President/CEO Nike, Inc.	EX-10 .21 4 nke-5312014xexhibit1021.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGMT\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJeanne Jackson ("EMPLOYEE")\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries, affiliates, successors and assigns. ("NIKE"):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment with NIKE and is a condition\nof such employment. Employee acknowledges that he/she was informed in a written job offer at least two weeks before starting work that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of employment.\nB. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”).\nIt is anticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the\ncompany and this Agreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the company or it is\nsuperseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe damage to\nNIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE's\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or\notherwise, and for 1 year thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or participate\nin the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear, athletic apparel or sports equipment, sports electronics/technology and sports accessories\nbusiness, or any other business which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a “Competitor”).\nThis provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement,\njudicial or other action, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE’s breach. In the event EMPLOYEE receives such additional compensation\nafter any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written\nrequest by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction\nPeriod or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of\nthe Restriction Period is waived or the definition of Competitor is limited, NIKE shall not be obligated to pay EMPLOYEE for any period of\ntime as to which the covenant not to compete has been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE\nterminate EMPLOYEE’s employment without cause and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly payment equal to one hundred percent (100%) of EMPLOYEE's last monthly base salary while the Restriction Period is in effect.\nExcept where prohibited by law, if Nike terminates EMPLOYEE for “cause,” no additional consideration will be owed to EMPLOYEE under\nthis Agreement and the covenant not to compete will remain enforceable. For purposes of this Agreement only, “cause” shall mean: i)\ninsubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such involvement in illegal activities violates Nike policies,\nplaces Nike at risk or has or could damage Nike’s reputation in the community or any of its related or subsidiary companies, (iv) violation of\nNike’s anti-harassment or anti-discrimination policy, and (v) gross neglect of EMPLOYEE’S duties or willful misconduct that, in either case,\nresults in\neconomic harm to Nike or harm to Nike’s reputation. Nothing in this paragraph or Agreement alters the employment-at-will relationship\nbetween Nike and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly severance payment equal to fifty percent (50%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. The\nfirst payment to EMPLOYEE of additional consideration shall follow on the next applicable pay period after the election to enforce the non-\ncompetition agreement, payable in accordance with NIKE’s payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s\nnew employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period,\nwherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protected Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in\nverbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes trade secrets and competitively sensitive business or professional information (regardless of whether\nsuch information constitutes a trade secret) relating to NIKE’s research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans or strategy, product development plants, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and personnel\ninformation.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, EMPLOYEE shall be permitted to\nretain as part of his or her personal portfolio copies of the EMPLOYEE’S original artwork and designs, provided the EMPLOYEE presents those\npersonal portfolio copies to his or her supervisor for review and approval and provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by\nclear and convincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected\nInformation for any purpose outside the scope of EMPLOYEE's employment with NIKE or disclose any Protected Information to any third\nperson or organization without the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior\nwritten consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that\nthere is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment,\nEMPLOYEE shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings, digital files, or\nother media containing Protected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE\nwill not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not\nsuch employment is pursuant to a written agreement or is at will or any independent contractor working for Nike.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled\nto an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid\nby NIKE pursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the\nreason for termination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically\nreferred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable\nor invalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according\nto the laws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and\nvenue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE NIKE, Inc.\n/s/ Jeanne Jackson By / s/ Mark Parker\nName: Mark Parker\nDATE March 4, 2009\nTitle: President/CEO Nike, Inc.
a87ebed40675b7ed9c2d4a0721abbefb.pdf	effective_date jurisdiction party term	EX-10 .34 15 iex-20171231xex1034.htm EXHIBIT 10.34\nEX-10.34\nCONFIDENTIAL INFORMATION, WORK PRODUCT\nAND RESTRICTIVE COVENANT AGREEMENT\nTHE UNDERSIGNED (“Employee”) has been offered employment with IDEX Corporation or one of its Groups, Divisions or\nBusiness Units (IDEX Corporation and its former, current and future Groups, Divisions and Business Units are referred to as\n“IDEX”; any entity that is part of IDEX and at some point employs Employee is referred to as an “IDEX Entity”; and the particular\nIDEX Entity that employs Employee as of the date of this Agreement is referred to as “Employer”) and desires to become an\nemployee of Employer or IDEX Entity.\nWHEREAS, it is a condition of employment that Employee enter into this Confidential Information, Work Product and Restrictive\nCovenant Agreement (the “Agreement”); and\nWHEREAS, Employee acknowledges that Employee received prior notice that Employee’s execution of this Agreement is a\nrequired condition of Employee’s at-will employment with Employer or other IDEX Entity.\nIN CONSIDERATION OF employment by Employer, access to and use of Confidential Information and Trade Secrets (both as\ndefined below), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nEmployee agrees as follows:\n1.\nScope of Agreement.\nThis Agreement shall apply in connection with all of Employee’s activities on behalf of or with respect to Employer and/or any\nIDEX Entity.\nThis Agreement shall continue to apply and remain in full force and effect if Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee’s initial Employer. If Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee’s initial Employer, such other entity shall thereafter be deemed to be Employer\nfor all purposes of this Agreement.\nEmployer and each IDEX Entity and their respective successors and assigns shall be beneficiaries of this Agreement and shall be\nentitled to enforce this Agreement against Employee. In the event that Employee’s employment moves from Employer to any IDEX\nEntity, where allowed by applicable law, this Agreement shall be deemed automatically assigned to the new IDEX Entity. The\nparties otherwise agree that Employer and each IDEX Entity may assign this Agreement without notice to, or consent from,\nEmployee.\n2.\nDefinitions.\n“Confidential Information” means (a) competitively sensitive information, (b) of importance to IDEX, and (c) that becomes\nknown to you through your employment with IDEX. Confidential Information includes, but is not limited to, information about\nIDEX’s operations, services, and research and development of IDEX’s operations or services; names and other listings of current or\nprospective customers, vendors, suppliers, and referral sources; proposals to or the terms of any arrangements or agreements with\nany current or prospective customers, vendors, and suppliers, including payment and pricing information; the implementation of\ncustomer-specific projects; the composition or description of future services that will or may be offered by IDEX; marketing\nstrategies; financial and sales information; and technical expertise and know-how developed by IDEX, including the unique manner\nin which IDEX conducts its business. Confidential Information also includes information disclosed to IDEX by any third party\n(including but not limited to current or prospective customers) that IDEX is required to treat as confidential. Confidential\nInformation does not include information readily available to the public, so long as it was not made public by you or anyone\nworking on your behalf. It is not necessary that information, data, or materials be a trade secret in order for such information, data,\nor materials to be Confidential Information.\n“Creative Works” means and includes all works of authorship and other creative works of any kind (including but not limited to\ntrademarks, service marks and other marks, trade dresses, logos, trade names, advertising, promotional materials, product and\nprocess descriptions, manuals, report forms, spreadsheets, diagrams, plans, charts, blueprints, designs, specifications, prototypes,\nmodels, software code, chip designs, and circuitry designs), regardless of form, that directly or indirectly relate to the actual or\nanticipated business, research or development of IDEX, are directed to or capable of fulfilling any need or inquiry of any customer\nor potential customer of IDEX, and/or that are conceived, created, developed, made or produced by Employee in whole or in part\nduring Employee’s IDEX Employment (as defined below) or within six months after Employee’s IDEX Employment terminates,\nwhether conceived, created, developed, made or produced alone or with one or more other persons, whether or not any of such other\npersons are employees of IDEX, whether conceived, created, developed, made or produced during or outside normal work hours,\nand whether conceived, created, developed, made or produced within or outside the premises of IDEX. For the avoidance of doubt,\n“Creative Works” shall not be deemed to include works of authorship and other creative works that Employee conceives, creates,\ndevelops, makes or produces independent of all work that Employee does for IDEX, entirely on Employee’s own time, and without\nusing any equipment, supplies, facilities, intellectual property, or trade secrets or other confidential or proprietary information of\nIDEX and do not relate to the current or anticipated business, research or development of IDEX.\n“IDEX Employment” means employment with Employer and any IDEX Entity.\n“Last Day of Employment” means Employee’s last day of employment with Employer or any IDEX Entity (whichever is later). It\ndoes not encompass movement of Employee’s employment directly from Employer to any IDEX Entity. Such movement shall be\ndeemed as continued employment.\n“Inventions” means and includes all ideas, discoveries and inventions of any kind, whether or not patentable, that directly or\nindirectly relate to the actual or anticipated business, research or development of IDEX, are directed to or capable of fulfilling any\nneed or inquiry of any customer or potential customer of IDEX, and/or that are conceived, created or developed by Employee in\nwhole or in part during Employee’s IDEX Employment or within six months after Employee’s IDEX Employment terminates,\nwhether conceived, created or developed alone or with one or more other persons, whether or not any of such other persons are\nemployees of IDEX, whether conceived, created or developed during or outside normal work hours, and whether conceived, created\nor developed within or outside the IDEX premises. For the avoidance of doubt, “Inventions” shall not be deemed to include ideas,\ndiscoveries and inventions that Employee conceives, creates, develops and reduces to practice independent of all work that\nEmployee does for IDEX, entirely on Employee’s own time, and without using any equipment, supplies, facilities, intellectual\nproperty, or trade secrets or other confidential or proprietary information of IDEX and do not relate to the current or anticipated\nbusiness, research or development of IDEX.\n“Restricted Activities” means (a) any activity for a non-IDEX person or entity that, during the eighteen (18) months prior to\nEmployee’s Last Date of Employment, is (i) competitive with the business of Employer or IDEX Entity and (ii) involves\nEmployee’s performance of the same or substantially similar material responsibilities that Employee performed on behalf of\nEmployer or IDEX Entity; or (b) any other activity involving the unauthorized use or disclosure (or the likelihood of the\nunauthorized use or disclosure) of Confidential Information. For purposes of this definition and of Restricted Geographic Area\nbelow, the term “material” means the expected job duties and responsibilities associated with Employee’s position or that are\nrequested by Employer or IDEX Entity from time to time.\n“Restricted Geographic Area” means (a) any geographic area where Employer or IDEX Entity is doing business during\nEmployee’s employment by Employer or IDEX Entity and where Employee’s use or disclosure of Confidential Information would\nmaterially disadvantage Employer or IDEX Entity regardless of Employee’s physical location; or (b) any geographic area where\nEmployee performed material responsibilities for Employer or IDEX Entity and, if Employee’s material responsibilities are\nconfined to any specific location(s), anywhere within a forty (40) mile radius of such specific location(s) where Employee\nperformed material responsibilities - both during the eighteen (18) months prior to Employee’s Last Date of Employment.\n“Restricted Period” means the period of Employee’s employment with Employer or IDEX Entity and the following periods of\ntime after Employee’s Last Date of Employment: (a) twelve (12) months for Employee’s Non-Competition\nand Non-Solicitation of or Interference with Customers obligations under paragraphs 5(a) and 5(b); and (b) twenty-four (24) months\nfor Employee’s Non-Inducement and Non-Hire obligations under paragraph 5(c) of the Agreement.\n“Third Party Confidential Information” means Confidential Information of an IDEX customer, supplier, or other third party.\n“Third Party Work Product” means Work Product (as defined below) to which IDEX has agreed to grant any right, title, claim,\nlicense or interest to any customer or other third party, but only to the extent of the specific right, title, claim, license or interest\nagreed to be granted to such customer or other third party.\n“Trade Secret” means information defined as a trade secret by the applicable state Trade Secrets Act, the Federal Defend Trade\nSecrets Act of 2016, or other applicable law.\n“Work Product” means and includes (a) all Creative Works, (b) all Inventions, and (c) all other work product of any kind that\nresults from any work that Employee does for IDEX.\n3.\nConfidential Information and Trade Secrets.\n(a) Employee acknowledges that Employee will be provided and/or have access to Confidential Information and Trade Secrets\nduring Employee’s IDEX Employment.\n(b) Employee shall at all times during and after the termination of Employee’s IDEX Employment safeguard and protect the\nconfidential nature of all Confidential Information and Trade Secrets, and take such precautions with respect thereto as Employer or\nany IDEX Entity may from time to time request.\n(c) Employee shall not at any time during or after the termination of Employee’s IDEX Employment, either individually or on\nbehalf of Employer, an IDEX Entity, or any other person or entity, directly or indirectly:\n(i)\ndisclose, use, provide, publish, transfer or otherwise make available or disseminate any Confidential Information\nor Trade Secrets, except (A) as reasonably required in connection with the proper performance of Employee’s duties and\nresponsibilities with Employer or IDEX Entity, and (B) in the case of Third Party Confidential Information or Trade\nSecrets, as authorized by the relevant customer, supplier or other third party; or\n(ii)\nsell, market or otherwise attempt to personally profit or benefit in any way from any Confidential Information or\nTrade Secrets.\n(d) The obligation of non‐disclosure and non‐use of Confidential Information and Trade Secrets shall continue to exist for so long\nas such information remains confidential (excepting improper use and/or disclosure by Employee or permissible disclosures allowed\nunder this Agreement); if, however, a court requires a shorter duration, then the maximum time allowable by law will control, which\nwill not be less than eighteen (18) months following Employee’s Last Day of Employment.\n(e) Immediately upon the request of IDEX, Employee shall deliver to IDEX all Confidential Information, Trade Secrets and\nproperty that IDEX may from time to time request. In addition, at such time as Employee’s IDEX Employment terminates,\nEmployee shall deliver to Employer or IDEX Entity all Confidential Information, Trade Secrets and property in Employee’s\npossession or control (including in hard copy or electronic form) without retaining any copies thereof or extracts therefrom in any\nform, except for such Confidential Information, Trade Secrets or property, if any, that IDEX may specifically authorize Employee to\nretain and then only for the particular purpose or purposes for which Employee is authorized to use such Confidential Information,\nTrade Secrets or property by IDEX.\n(f) In addition to and not in lieu of the above obligations, Employee shall at all times comply with all restrictions on disclosure and\nuse of Third Party Confidential Information or Trade Secrets imposed under (i) any confidentiality, non-disclosure or other\nagreement, commitment or undertaking of IDEX with any customer, supplier or other third party of which Employee has been\nadvised or is aware, and (ii) any confidentiality, non-disclosure or other agreement, commitment or undertaking of Employee with\nany customer, supplier or other third party.\n(g) Employee will not be held criminally or civilly liable under any Federal or state trade secret law for the disclosure of a Trade\nSecret that: (i) is made (A) in confidence to a Federal, state, or local government official, either directly or indirectly, or to an\nattorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or\nother document filed in a lawsuit or other proceeding, if such filing is made under seal. Disclosure of Trade Secrets to attorneys,\nmade under seal, or pursuant to court order is also protected under 18 U.S . Code § 1833 in any retaliation lawsuit based on the\nreporting of a suspected violation of law.\n(h) Nothing in this Agreement is intended to be or will be construed to prevent, impede, or interfere with Employee’s right to\nrespond accurately and fully to any question, inquiry, or request for information regarding Employee or Employee’s employment\nwith Employer or IDEX Entity when required from initiating communications directly with, or responding to any inquiry from, or\nproviding truthful testimony and information to any Federal, state, or other regulatory authority in the course of an investigation or\nproceeding authorized by law and carried out by such agency. Employee is not required to contact Employer or IDEX Entity\nregarding the subject matter of any such communications before Employee engages in such communications. Nothing in this\nAgreement is intended to restrict Employee’s legally-protected right to discuss wages, hours or other working conditions with co-\nworkers, or in any way limit Employee’s rights under the National Labor Relations Act or any whistleblower act.\n4.\nWork Product.\n(a) Employee acknowledges that continuous improvement and innovation are key business strategies and objectives of IDEX,\nand, during Employee’s IDEX Employment, Employee is expected to conceive, create, develop, make and produce Work\nProduct.\n(b)\nEmployee shall fully and promptly disclose to Employer or IDEX Entity all Work Product.\n(c)\nAs between Employee and IDEX, all Work Product shall be deemed to be a work made for hire and the sole and\nexclusive property of IDEX.\n(d)\nEmployee hereby assigns to IDEX all of Employee’s current and future right, title, claim and interest in and to all Work\nProduct, including but not limited to all United States and foreign patent rights and copyrights.\n(e)\nEmployee shall not at any time during or after the termination of Employee’s IDEX Employment, either individually or\non behalf of any other person or entity, directly or indirectly: (i) use any Work Product except (A) as reasonably required in\nconnection with the proper performance of Employee’s duties and responsibilities with Employer or IDEX Entity, and (B) in the\ncase of Third Party Work Product, as authorized by the relevant customer or other third party; or (ii) sell, market, or otherwise\nattempt to personally profit or benefit in any way from any Work Product.\n5.\nRestrictive Covenants.\n(a) Non-Competition. Employee agrees that during the Restricted Period and in the Restricted Geographic Area, Employee will\nnot engage in any Restricted Activities; provided that Employee may invest Employee’s funds in securities of a person engaged in a\nbusiness that is directly competitive with IDEX if the securities of such a person are listed for trading on a registered securities\nexchange or actively traded in an over-the-counter market and Employee’s holdings represent less than one percent (1%) of the total\nnumber of shares or principal amount of the securities of such a person outstanding.\n(b) Non‐Solicitation of or Interference with Customers. Employee acknowledges that the relationships that Employer and any\nIDEX Entity has with their customers and employees, the goodwill related to such relationships, and the business knowledge,\ntraining, and skills of their employees have been developed with significant investments of time, effort, and expense on the part of\nIDEX and are valuable assets of IDEX. During the Restricted Period, for the purpose of engaging in Restricted Activities,\nEmployee shall not, directly or indirectly: (i) solicit business from or perform services for, or for the benefit of, any established\ncustomer or established account of Employer or IDEX Entity with which Employee had contact, participated in the contact, or about\nwhich Employee had knowledge of Confidential Information by reason of Employee’s relationship with Employer or IDEX Entity\nwithin the eighteen (18) month period prior to Employee’s Last Date of Employment; (ii) solicit business from or perform services\nfor, or for the benefit of, any customer or account that was pursued by Employer or IDEX Entity and with which Employee had\ncontact, participated in the contact, or about which Employee had knowledge of by reason of Employee’s access to or use of\nConfidential Information within the eighteen (18) month period prior to Employee’s Last Date of Employment; or (iii) influence,\nseek to influence, or contact for the purpose of influencing or seeking to influence, any person or entity to limit or cease doing\nbusiness with Employer or IDEX Entity.\n(c) Non‐Inducement and Non-Hire. During the Restricted Period, Employee shall not, directly or indirectly, solicit, hire, attempt to\nsolicit or hire, or participate in any attempt to solicit or hire for any non‐IDEX entity, any person who at any time during the\neighteen (18) months immediately preceding the date of such solicitation or hire is or was an officer, employee or consultant of\nEmployer or IDEX Entity occupying a position uniquely essential to the management, organization, or servicing of the business of\nEmployer or IDEX Entity to resign from his or her employment, or whom Employee was aware was being actively recruited by\nIDEX, and with whom Employee had contact or participated in contact during Employee’s employment with Employer or IDEX\nEntity.\n(d) Covenants are Reasonable. The parties understand and agree that the covenants in this paragraph are necessary and essential to\nprotect IDEX’s proprietary and confidential business information; that the area, duration and scope of the covenants in this\nparagraph are reasonable and necessary to protect IDEX; that they do not unduly oppress or restrict Employee’s ability to earn a\nlivelihood in Employee’s chosen profession; that they are not an undue restraint on Employee’s trade or any of the public interests\nthat may be involved; that good and valuable consideration exists for Employee’s agreement to be bound by such covenants; and\nthat Employer or IDEX Entity has a legitimate business purpose in requiring Employee to abide by the covenants set forth in this\nparagraph.\n6.\nFurther Assurances.\nEmployee shall comply with all instructions and directions of Employer and any IDEX Entity and provide all assistance and\ncooperation, provide and make available all records, files and information, execute and deliver all assignments, affidavits,\ncertifications and other documents and instruments, and take and do all other actions and things that Employer or any IDEX Entity\nmay at any time and from time to time properly request to protect and preserve Confidential Information, evidence, secure, perfect\nand protect its rights, title, claims and interests in Work Product, seek and obtain United States and/or foreign patents with respect to\nWork Product, comply with and carry out agreements, commitments and undertakings made by IDEX to any customer, supplier or\nother third party relating to Third Party Confidential Information, Trade Secrets and/or Third Party Work Product, or carry out and\nimplement the provisions of this Agreement.\nThe IDEX Entity that requests Employee to take or perform any action or thing pursuant to this paragraph shall reimburse\nEmployee for Employee’s reasonable and necessary out-of-pocket costs and expenses in taking or performing such action or things;\nprovided, however, that (i) Employee shall advise such IDEX Entity prior to incurring any out-of-pocket cost and expense in excess\nof $50.00 so that such IDEX Entity can determine whether such out-of-pocket expense is reasonable and necessary in advance of it\nbeing incurred and advise Employee whether such IDEX Entity wishes to withdraw or modify its request for Employee to take or\nperform such action or thing, (ii) Employee shall not be entitled to be reimbursed for any cost or expense that is attributable to or\narises out of any failure of Employee to comply with the provisions of this Agreement, and (iii) the obligation to reimburse\nEmployee for out-of-pocket costs and expenses shall not apply in connection with a lawsuit or other legal action to enforce this\nAgreement against Employee.\n7.\nBreach and Equitable Remedies.\nEmployee acknowledges that the restrictions contained in this Agreement, including in paragraphs 2, 3, 4 or 5 above, are necessary\nto protect the legitimate interests of IDEX and that any violation of this Agreement would result in irreparable harm and injury to\nEmployer or IDEX Entity. In the event of a breach or threatened breach by Employee of the provisions of this Agreement,\nEmployee agrees that Employer or IDEX Entity will be entitled to an injunction, without first posting bond and without notice,\nrestraining Employee from such breach or threatened breach and to any other legal or equitable remedies available to Employer or\nIDEX Entity. Employer or IDEX Entity will also be entitled to all costs and expenses (including reasonable attorneys’ fees) from\nEmployee should Employee breach this Agreement.\n8.\nRestrictive Agreements and Restricted Information.\n(a) Except as disclosed on the Schedule of Restrictive Agreements attached to this Agreement, Employee has not made and is not\na party or subject to any confidentiality, non-disclosure, inventions, employment or other agreement, commitment or undertaking\nwith a prior employer or any other person or entity that could limit or restrict Employee in the performance of Employee’s duties\nand responsibilities with Employer or IDEX Entity.\n(b) Employee shall not at any time during Employee’s IDEX Employment disclose, provide or make available to Employer, IDEX\nEntity or any customer, supplier or other third party with whom IDEX has a relationship any information, data or materials that\nEmployee has obtained from a prior employer, customer, supplier or other third party that may be subject to any restriction on\ndisclosure or use (“Restricted Information”) unless Employee is clearly authorized to disclose, provide or make available such\nRestricted Information to the person or persons to whom Employee is disclosing, providing or making available such Restricted\nInformation for the purpose or purposes for which such Restricted Information is being disclosed.\n9.\nEmployment at Will.\nUnless and except to the extent Employer or IDEX Entity may expressly agree otherwise in a separate written employment\nagreement with Employee, Employee’s IDEX Employment is and shall at all times be “at will”, and nothing in this Agreement is\nintended to change Employee’s status as an “at will” employee or create or imply any right or expectation in Employee of\ncontinuing IDEX Employment.\n10.\nReasonableness, Severability and Reformation.\nEmployee acknowledges that the provisions of this Agreement and the obligations imposed on Employee under this Agreement are\nfair and reasonable, not unduly burdensome or restrictive on Employee, and appropriate and necessary for the protection of the\nproperty and legitimate business interests of Employer or other IDEX Entity.\nThe provisions of this Agreement are severable. Employee agrees that if any particular paragraphs, subparagraphs, subparts,\nphrases, words, or other portions of this Agreement are determined by an appropriate court to be invalid or unenforceable as written,\nthey shall be modified as necessary to be valid or enforceable, and such modification shall not affect the remaining provisions of\nthis Agreement; or, if they cannot be modified to be made valid or enforceable, then they shall be severed from this Agreement, and\nall remaining non-eliminated paragraphs, subparagraphs, subparts, phrases, words, or other portions of this Agreement shall be\nenforced.\n11.\nMiscellaneous.\n(a) This Agreement shall be governed by, interpreted, and enforced in accordance with the internal laws of the State of\nDelaware of the United States of America, without regard to any principles of conflict of laws. Any action regarding this\nAgreement or Employee’s employment with or separation from Employer or other IDEX Entity must be brought and\nprosecuted in the state or federal courts where the principal place of business for Employer or other IDEX Entity is located,\nand the parties will not dispute that personal jurisdiction or venue is appropriate and convenient in those courts.\n(b)\nThis Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter, and no\nrepresentation, commitment or undertaking has been made to Employee in connection with, or to induce Employee to enter into,\nthis Agreement other than as set forth herein.\n(c)\nThe rights and remedies of IDEX under this Agreement, and the liabilities and obligations of Employee under this\nAgreement, are not exclusive, but are in addition to any and all rights and remedies that IDEX may have, and any and all liabilities\nand obligations that Employee may have, under any law, statute, rule or regulation, any IDEX corporate policy, or, subject only to\nparagraph 11(b) above, any other contract or agreement.\n(d)\nThis Agreement may be amended, modified, or terminated, and compliance with the provisions of this Agreement may\nbe waived only in writing signed by Employee and a duly authorized officer of Employer. The waiver of or failure to enforce the\nprovisions of this Agreement or other similar agreement that IDEX may have with Employee or any other employee shall not\nconstitute a waiver of or limit or restrict in any way the right of Employer or IDEX Entity to enforce the provisions of this\nAgreement against Employee. The rights and remedies of IDEX under this Agreement shall be in addition to, and not in lieu of, any\nrights and remedies that may be available to it independent of this Agreement.\n(e)\nThis Agreement shall continue in full force and effect notwithstanding any changes in the terms and conditions of the\nEmployee’s employment with Employer or IDEX Entity, including, without limitation, any change in title, position, duties, or\nresponsibility.\n(f)\nEmployee acknowledges that (i) the signing of this Agreement is a condition to Employee being employed by Employer,\n(ii) Employee would have had no right or entitlement to IDEX Employment by Employer or other IDEX Entity if this Agreement\nhad not been signed by Employee, (iii) Employee was given the right to consult with an attorney prior to signing this Agreement,\n(iv) if Employee did not consult with an attorney prior to signing this\nAgreement, it was a voluntary choice on the part of Employee not to so consult, and (v) Employee is voluntarily entering into this\nAgreement.\n(g)\nThe termination of Employee’s IDEX Employment, regardless of the nature of or reason for the termination, shall not\nterminate or relieve Employee from complying with the provisions of this Agreement.\n(h)\nEmployee agrees that in the event Employee is offered to enter into an employment relationship with a third party at any\ntime during the existence of this Agreement, including in any such other period in which post‐employment obligations of this\nAgreement apply, the business of which is in any way competitive with Employer or other IDEX Entity, Employee shall\nimmediately advise said other third party of the existence of this Agreement and shall provide said person or entity with a copy of\nthis Agreement.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement freely and voluntarily with the intention of being\nlegally bound by it.\nEMPLOYEE\nIDEX CORPORATION\nSigned:\nName:\nDated:\nBy:\nName:\nTitle:\nDated:\n_____________________________________________________________________________________\nEmployee Name:\nSchedule of Restrictive Agreements\n(If none, insert “NONE”)	EX-10.34 15 iex-20171231xex1034.htm EXHIBIT 10.34\nEX-10.34\nCONFIDENTIAL INFORMATION, WORK PRODUCT\nAND RESTRICTIVE COVENANT AGREEMENT\nTHE UNDERSIGNED (“Employee”) has been offered employment with IDEX Corporation or one of its Groups, Divisions or\nBusiness Units (IDEX Corporation and its former, current and future Groups, Divisions and Business Units are referred to as\n“IDEX?”; any entity that is part of IDEX and at some point employs Employee is referred to as an “IDEX Entity”; and the particular\nIDEX Entity that employs Employee as of the date of this Agreement is referred to as “Employer”) and desires to become an\nemployee of Employer or IDEX Entity.\nWHEREAS, it is a condition of employment that Employee enter into this Confidential Information, Work Product and Restrictive\nCovenant Agreement (the “Agreement”); and\nWHEREAS, Employee acknowledges that Employee received prior notice that Employee’s execution of this Agreement is a\nrequired condition of Employee’s at-will employment with Employer or other IDEX Entity.\nIN CONSIDERATION OF employment by Employer, access to and use of Confidential Information and Trade Secrets (both as\ndefined below), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nEmployee agrees as follows:\n1. Scope of Agreement.\nThis Agreement shall apply in connection with all of Employee’s activities on behalf of or with respect to Employer and/or any\nIDEX Entity.\nThis Agreement shall continue to apply and remain in full force and effect if Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee’s initial Employer. If Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee’s initial Employer, such other entity shall thereafter be deemed to be Employer\nfor all purposes of this Agreement.\nEmployer and each IDEX Entity and their respective successors and assigns shall be beneficiaries of this Agreement and shall be\nentitled to enforce this Agreement against Employee. In the event that Employee’s employment moves from Employer to any IDEX\nEntity, where allowed by applicable law, this Agreement shall be deemed automatically assigned to the new IDEX Entity. The\nparties otherwise agree that Employer and each IDEX Entity may assign this Agreement without notice to, or consent from,\nEmployee.\n2. Definitions.\n“Confidential Information” means (a) competitively sensitive information, (b) of importance to IDEX, and (c) that becomes\nknown to you through your employment with IDEX. Confidential Information includes, but is not limited to, information about\nIDEX’s operations, services, and research and development of IDEX’s operations or services; names and other listings of current or\nprospective customers, vendors, suppliers, and referral sources; proposals to or the terms of any arrangements or agreements with\nany current or prospective customers, vendors, and suppliers, including payment and pricing information; the implementation of\ncustomer-specific projects; the composition or description of future services that will or may be offered by IDEX; marketing\nstrategies; financial and sales information; and technical expertise and know-how developed by IDEX, including the unique manner\nin which IDEX conducts its business. Confidential Information also includes information disclosed to IDEX by any third party\n(including but not limited to current or prospective customers) that IDEX is required to treat as confidential. Confidential\nInformation does not include information readily available to the public, so long as it was not made public by you or anyone\nworking on your behalf. It is not necessary that information, data, or materials be a trade secret in order for such information, data,\nor materials to be Confidential Information.\n“Creative Works” means and includes all works of authorship and other creative works of any kind (including but not limited to\ntrademarks, service marks and other marks, trade dresses, logos, trade names, advertising, promotional materials, product and\nprocess descriptions, manuals, report forms, spreadsheets, diagrams, plans, charts, blueprints, designs, specifications, prototypes,\nmodels, software code, chip designs, and circuitry designs), regardless of form, that directly or indirectly relate to the actual or\nanticipated business, research or development of IDEX, are directed to or capable of fulfilling any need or inquiry of any customer\nor potential customer of IDEX, and/or that are conceived, created, developed, made or produced by Employee in whole or in part\nduring Employee’s IDEX Employment (as defined below) or within six months after Employee’s IDEX Employment terminates,\nwhether conceived, created, developed, made or produced alone or with one or more other persons, whether or not any of such other\npersons are employees of IDEX, whether conceived, created, developed, made or produced during or outside normal work hours,\nand whether conceived, created, developed, made or produced within or outside the premises of IDEX. For the avoidance of doubt,\n“Creative Works” shall not be deemed to include works of authorship and other creative works that Employee conceives, creates,\ndevelops, makes or produces independent of all work that Employee does for IDEX, entirely on Employee’s own time, and without\nusing any equipment, supplies, facilities, intellectual property, or trade secrets or other confidential or proprietary information of\nIDEX and do not relate to the current or anticipated business, research or development of IDEX.\n“IDEX Employment” means employment with Employer and any IDEX Entity.\n“Last Day of Employment” means Employee’s last day of employment with Employer or any IDEX Entity (whichever is later). It\ndoes not encompass movement of Employee’s employment directly from Employer to any IDEX Entity. Such movement shall be\ndeemed as continued employment.\n“Inventions” means and includes all ideas, discoveries and inventions of any kind, whether or not patentable, that directly or\nindirectly relate to the actual or anticipated business, research or development of IDEX, are directed to or capable of fulfilling any\nneed or inquiry of any customer or potential customer of IDEX, and/or that are conceived, created or developed by Employee in\nwhole or in part during Employee’s IDEX Employment or within six months after Employee’s IDEX Employment terminates,\nwhether conceived, created or developed alone or with one or more other persons, whether or not any of such other persons are\nemployees of IDEX, whether conceived, created or developed during or outside normal work hours, and whether conceived, created\nor developed within or outside the IDEX premises. For the avoidance of doubt, “Inventions” shall not be deemed to include ideas,\ndiscoveries and inventions that Employee conceives, creates, develops and reduces to practice independent of all work that\nEmployee does for IDEX, entirely on Employee’s own time, and without using any equipment, supplies, facilities, intellectual\nproperty, or trade secrets or other confidential or proprietary information of IDEX and do not relate to the current or anticipated\nbusiness, research or development of IDEX.\n“Restricted Activities” means (a) any activity for a non-IDEX person or entity that, during the eighteen (18) months prior to\nEmployee’s Last Date of Employment, is (i) competitive with the business of Employer or IDEX Entity and (ii) involves\nEmployee’s performance of the same or substantially similar material responsibilities that Employee performed on behalf of\nEmployer or IDEX Entity; or (b) any other activity involving the unauthorized use or disclosure (or the likelihood of the\nunauthorized use or disclosure) of Confidential Information. For purposes of this definition and of Restricted Geographic Area\nbelow, the term “material” means the expected job duties and responsibilities associated with Employee’s position or that are\nrequested by Employer or IDEX Entity from time to time.\n“Restricted Geographic Area” means (a) any geographic area where Employer or IDEX Entity is doing business during\nEmployee’s employment by Employer or IDEX Entity and where Employee’s use or disclosure of Confidential Information would\nmaterially disadvantage Employer or IDEX Entity regardless of Employee’s physical location; or (b) any geographic area where\nEmployee performed material responsibilities for Employer or IDEX Entity and, if Employee’s material responsibilities are\nconfined to any specific location(s), anywhere within a forty (40) mile radius of such specific location(s) where Employee\nperformed material responsibilities - both during the eighteen (18) months prior to Employee’s Last Date of Employment.\n“Restricted Period” means the period of Employee’s employment with Employer or IDEX Entity and the following periods of\ntime after Employee’s Last Date of Employment: (a) twelve (12) months for Employee’s Non-Competition\nand Non-Solicitation of or Interference with Customers obligations under paragraphs 5(a) and 5(b); and (b) twenty-four (24) months\nfor Employee’s Non-Inducement and Non-Hire obligations under paragraph 5(c) of the Agreement.\n“Third Party Confidential Information” means Confidential Information of an IDEX customer, supplier, or other third party.\n“Third Party Work Product” means Work Product (as defined below) to which IDEX has agreed to grant any right, title, claim,\nlicense or interest to any customer or other third party, but only to the extent of the specific right, title, claim, license or interest\nagreed to be granted to such customer or other third party.\n“Trade Secret” means information defined as a trade secret by the applicable state Trade Secrets Act, the Federal Defend Trade\nSecrets Act of 2016, or other applicable law.\n“Work Product” means and includes (a) all Creative Works, (b) all Inventions, and (c) all other work product of any kind that\nresults from any work that Employee does for IDEX.\n3. Confidential Information and Trade Secrets.\n(a) Employee acknowledges that Employee will be provided and/or have access to Confidential Information and Trade Secrets\nduring Employee’s IDEX Employment.\n(b) Employee shall at all times during and after the termination of Employee’s IDEX Employment safeguard and protect the\nconfidential nature of all Confidential Information and Trade Secrets, and take such precautions with respect thereto as Employer or\nany IDEX Entity may from time to time request.\n(c) Employee shall not at any time during or after the termination of Employee’s IDEX Employment, either individually or on\nbehalf of Employer, an IDEX Entity, or any other person or entity, directly or indirectly:\n) disclose, use, provide, publish, transfer or otherwise make available or disseminate any Confidential Information\nor Trade Secrets, except (A) as reasonably required in connection with the proper performance of Employee’s duties and\nresponsibilities with Employer or IDEX Entity, and (B) in the case of Third Party Confidential Information or Trade\nSecrets, as authorized by the relevant customer, supplier or other third party; or\n(i) sell, market or otherwise attempt to personally profit or benefit in any way from any Confidential Information or\nTrade Secrets.\n(d) The obligation of non-disclosure and non-use of Confidential Information and Trade Secrets shall continue to exist for so long\nas such information remains confidential (excepting improper use and/or disclosure by Employee or permissible disclosures allowed\nunder this Agreement); if, however, a court requires a shorter duration, then the maximum time allowable by law will control, which\nwill not be less than eighteen (18) months following Employee’s Last Day of Employment.\n(e) Immediately upon the request of IDEX, Employee shall deliver to IDEX all Confidential Information, Trade Secrets and\nproperty that IDEX may from time to time request. In addition, at such time as Employee’s IDEX Employment terminates,\nEmployee shall deliver to Employer or IDEX Entity all Confidential Information, Trade Secrets and property in Employee’s\npossession or control (including in hard copy or electronic form) without retaining any copies thereof or extracts therefrom in any\nform, except for such Confidential Information, Trade Secrets or property, if any, that IDEX may specifically authorize Employee to\nretain and then only for the particular purpose or purposes for which Employee is authorized to use such Confidential Information,\nTrade Secrets or property by IDEX.\n(f) In addition to and not in lieu of the above obligations, Employee shall at all times comply with all restrictions on disclosure and\nuse of Third Party Confidential Information or Trade Secrets imposed under (i) any confidentiality, non-disclosure or other\nagreement, commitment or undertaking of IDEX with any customer, supplier or other third party of which Employee has been\nadvised or is aware, and (ii) any confidentiality, non-disclosure or other agreement, commitment or undertaking of Employee with\nany customer, supplier or other third party.\n(g) Employee will not be held criminally or civilly liable under any Federal or state trade secret law for the disclosure of a Trade\nSecret that: (i) is made (A) in confidence to a Federal, state, or local government official, either directly or indirectly, or to an\nattorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or\nother document filed in a lawsuit or other proceeding, if such filing is made under seal. Disclosure of Trade Secrets to attorneys,\nmade under seal, or pursuant to court order is also protected under 18 U.S. Code § 1833 in any retaliation lawsuit based on the\nreporting of a suspected violation of law.\n(h) Nothing in this Agreement is intended to be or will be construed to prevent, impede, or interfere with Employee’s right to\nrespond accurately and fully to any question, inquiry, or request for information regarding Employee or Employee’s employment\nwith Employer or IDEX Entity when required from initiating communications directly with, or responding to any inquiry from, or\nproviding truthful testimony and information to any Federal, state, or other regulatory authority in the course of an investigation or\nproceeding authorized by law and carried out by such agency. Employee is not required to contact Employer or IDEX Entity\nregarding the subject matter of any such communications before Employee engages in such communications. Nothing in this\nAgreement is intended to restrict Employee’s legally-protected right to discuss wages, hours or other working conditions with co-\nworkers, or in any way limit Employee’s rights under the National Labor Relations Act or any whistleblower act.\n4. Work Product.\n(a) Employee acknowledges that continuous improvement and innovation are key business strategies and objectives of IDEX,\nand, during Employee’s IDEX Employment, Employee is expected to conceive, create, develop, make and produce Work\nProduct.\n(b) Employee shall fully and promptly disclose to Employer or IDEX Entity all Work Product.\n(© As between Employee and IDEX, all Work Product shall be deemed to be a work made for hire and the sole and\nexclusive property of IDEX.\n(d) Employee hereby assigns to IDEX all of Employee’s current and future right, title, claim and interest in and to all Work\nProduct, including but not limited to all United States and foreign patent rights and copyrights.\n(e) Employee shall not at any time during or after the termination of Employee’s IDEX Employment, either individually or\non behalf of any other person or entity, directly or indirectly: (i) use any Work Product except (A) as reasonably required in\nconnection with the proper performance of Employee’s duties and responsibilities with Employer or IDEX Entity, and (B) in the\ncase of Third Party Work Product, as authorized by the relevant customer or other third party; or (ii) sell, market, or otherwise\nattempt to personally profit or benefit in any way from any Work Product.\n5. Restrictive Covenants.\n(@) Non-Competition. Employee agrees that during the Restricted Period and in the Restricted Geographic Area, Employee will\nnot engage in any Restricted Activities; provided that Employee may invest Employee’s funds in securities of a person engaged in a\nbusiness that is directly competitive with IDEX if the securities of such a person are listed for trading on a registered securities\nexchange or actively traded in an over-the-counter market and Employee’s holdings represent less than one percent (1%) of the total\nnumber of shares or principal amount of the securities of such a person outstanding.\n(b) Non-Solicitation of or Interference with Customers. Employee acknowledges that the relationships that Employer and any\nIDEX Entity has with their customers and employees, the goodwill related to such relationships, and the business knowledge,\ntraining, and skills of their employees have been developed with significant investments of time, effort, and expense on the part of\nIDEX and are valuable assets of IDEX. During the Restricted Period, for the purpose of engaging in Restricted Activities,\nEmployee shall not, directly or indirectly: (i) solicit business from or perform services for, or for the benefit of, any established\ncustomer or established account of Employer or IDEX Entity with which Employee had contact, participated in the contact, or about\nwhich Employee had knowledge of Confidential Information by reason of Employee’s relationship with Employer or IDEX Entity\nwithin the eighteen (18) month period prior to Employee’s Last Date of Employment; (ii) solicit business from or perform services\nfor, or for the benefit of, any customer or account that was pursued by Employer or IDEX Entity and with which Employee had\ncontact, participated in the contact, or about which Employee had knowledge of by reason of Employee’s access to or use of\nConfidential Information within the eighteen (18) month period prior to Employee’s Last Date of Employment; or (iii) influence,\nseek to influence, or contact for the purpose of influencing or seeking to influence, any person or entity to limit or cease doing\nbusiness with Employer or IDEX Entity.\n(c) Non-Inducement and Non-Hire. During the Restricted Period, Employee shall not, directly or indirectly, solicit, hire, attempt to\nsolicit or hire, or participate in any attempt to solicit or hire for any non-IDEX entity, any person who at any time during the\neighteen (18) months immediately preceding the date of such solicitation or hire is or was an officer, employee or consultant of\nEmployer or IDEX Entity occupying a position uniquely essential to the management, organization, or servicing of the business of\nEmployer or IDEX Entity to resign from his or her employment, or whom Employee was aware was being actively recruited by\nIDEX, and with whom Employee had contact or participated in contact during Employee’s employment with Employer or IDEX\nEntity.\n(d) Covenants are Reasonable. The parties understand and agree that the covenants in this paragraph are necessary and essential to\nprotect IDEX’s proprietary and confidential business information; that the area, duration and scope of the covenants in this\nparagraph are reasonable and necessary to protect IDEX; that they do not unduly oppress or restrict Employee’s ability to earn a\nlivelihood in Employee’s chosen profession; that they are not an undue restraint on Employee’s trade or any of the public interests\nthat may be involved; that good and valuable consideration exists for Employee’s agreement to be bound by such covenants; and\nthat Employer or IDEX Entity has a legitimate business purpose in requiring Employee to abide by the covenants set forth in this\nparagraph.\n6. Further Assurances.\nEmployee shall comply with all instructions and directions of Employer and any IDEX Entity and provide all assistance and\ncooperation, provide and make available all records, files and information, execute and deliver all assignments, affidavits,\ncertifications and other documents and instruments, and take and do all other actions and things that Employer or any IDEX Entity\nmay at any time and from time to time properly request to protect and preserve Confidential Information, evidence, secure, perfect\nand protect its rights, title, claims and interests in Work Product, seek and obtain United States and/or foreign patents with respect to\nWork Product, comply with and carry out agreements, commitments and undertakings made by IDEX to any customer, supplier or\nother third party relating to Third Party Confidential Information, Trade Secrets and/or Third Party Work Product, or carry out and\nimplement the provisions of this Agreement.\nThe IDEX Entity that requests Employee to take or perform any action or thing pursuant to this paragraph shall reimburse\nEmployee for Employee’s reasonable and necessary out-of-pocket costs and expenses in taking or performing such action or things;\nprovided, however, that (i) Employee shall advise such IDEX Entity prior to incurring any out-of-pocket cost and expense in excess\nof $50.00 so that such IDEX Entity can determine whether such out-of-pocket expense is reasonable and necessary in advance of it\nbeing incurred and advise Employee whether such IDEX Entity wishes to withdraw or modify its request for Employee to take or\nperform such action or thing, (ii) Employee shall not be entitled to be reimbursed for any cost or expense that is attributable to or\narises out of any failure of Employee to comply with the provisions of this Agreement, and (iii) the obligation to reimburse\nEmployee for out-of-pocket costs and expenses shall not apply in connection with a lawsuit or other legal action to enforce this\nAgreement against Employee.\n7. Breach and Equitable Remedies.\nEmployee acknowledges that the restrictions contained in this Agreement, including in paragraphs 2, 3, 4 or 5 above, are necessary\nto protect the legitimate interests of IDEX and that any violation of this Agreement would result in irreparable harm and injury to\nEmployer or IDEX Entity. In the event of a breach or threatened breach by Employee of the provisions of this Agreement,\nEmployee agrees that Employer or IDEX Entity will be entitled to an injunction, without first posting bond and without notice,\nrestraining Employee from such breach or threatened breach and to any other legal or equitable remedies available to Employer or\nIDEX Entity. Employer or IDEX Entity will also be entitled to all costs and expenses (including reasonable attorneys’ fees) from\nEmployee should Employee breach this Agreement.\n8. Restrictive Agreements and Restricted Information.\n(a) Except as disclosed on the Schedule of Restrictive Agreements attached to this Agreement, Employee has not made and is not\na party or subject to any confidentiality, non-disclosure, inventions, employment or other agreement, commitment or undertaking\nwith a prior employer or any other person or entity that could limit or restrict Employee in the performance of Employee’s duties\nand responsibilities with Employer or IDEX Entity.\n(b) Employee shall not at any time during Employee’s IDEX Employment disclose, provide or make available to Employer, IDEX\nEntity or any customer, supplier or other third party with whom IDEX has a relationship any information, data or materials that\nEmployee has obtained from a prior employer, customer, supplier or other third party that may be subject to any restriction on\ndisclosure or use (“Restricted Information”) unless Employee is clearly authorized to disclose, provide or make available such\nRestricted Information to the person or persons to whom Employee is disclosing, providing or making available such Restricted\nInformation for the purpose or purposes for which such Restricted Information is being disclosed.\n9. Employment at Will.\nUnless and except to the extent Employer or IDEX Entity may expressly agree otherwise in a separate written employment\nagreement with Employee, Employee’s IDEX Employment is and shall at all times be “at will”, and nothing in this Agreement is\nintended to change Employee’s status as an “at will” employee or create or imply any right or expectation in Employee of\ncontinuing IDEX Employment.\n10. Reasonableness, Severability and Reformation.\nEmployee acknowledges that the provisions of this Agreement and the obligations imposed on Employee under this Agreement are\nfair and reasonable, not unduly burdensome or restrictive on Employee, and appropriate and necessary for the protection of the\nproperty and legitimate business interests of Employer or other IDEX Entity.\nThe provisions of this Agreement are severable. Employee agrees that if any particular paragraphs, subparagraphs, subparts,\nphrases, words, or other portions of this Agreement are determined by an appropriate court to be invalid or unenforceable as written,\nthey shall be modified as necessary to be valid or enforceable, and such modification shall not affect the remaining provisions of\nthis Agreement; or, if they cannot be modified to be made valid or enforceable, then they shall be severed from this Agreement, and\nall remaining non-eliminated paragraphs, subparagraphs, subparts, phrases, words, or other portions of this Agreement shall be\nenforced.\n11. Miscellaneous.\n(@) This Agreement shall be governed by, interpreted, and enforced in accordance with the internal laws of the State of\nDelaware of the United States of America, without regard to any principles of conflict of laws. Any action regarding this\nAgreement or Employee’s employment with or separation from Employer or other IDEX Entity must be brought and\nprosecuted in the state or federal courts where the principal place of business for Employer or other IDEX Entity is located,\nand the parties will not dispute that personal jurisdiction or venue is appropriate and convenient in those courts.\n(b) This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter, and no\nrepresentation, commitment or undertaking has been made to Employee in connection with, or to induce Employee to enter into,\nthis Agreement other than as set forth herein.\n(© The rights and remedies of IDEX under this Agreement, and the liabilities and obligations of Employee under this\nAgreement, are not exclusive, but are in addition to any and all rights and remedies that IDEX may have, and any and all liabilities\nand obligations that Employee may have, under any law, statute, rule or regulation, any IDEX corporate policy, or, subject only to\nparagraph 11(b) above, any other contract or agreement.\n(d) This Agreement may be amended, modified, or terminated, and compliance with the provisions of this Agreement may\nbe waived only in writing signed by Employee and a duly authorized officer of Employer. The waiver of or failure to enforce the\nprovisions of this Agreement or other similar agreement that IDEX may have with Employee or any other employee shall not\nconstitute a waiver of or limit or restrict in any way the right of Employer or IDEX Entity to enforce the provisions of this\nAgreement against Employee. The rights and remedies of IDEX under this Agreement shall be in addition to, and not in lieu of, any\nrights and remedies that may be available to it independent of this Agreement.\n(e) This Agreement shall continue in full force and effect notwithstanding any changes in the terms and conditions of the\nEmployee’s employment with Employer or IDEX Entity, including, without limitation, any change in title, position, duties, or\nresponsibility.\n® Employee acknowledges that (i) the signing of this Agreement is a condition to Employee being employed by Employer,\n(ii) Employee would have had no right or entitlement to IDEX Employment by Employer or other IDEX Entity if this Agreement\nhad not been signed by Employee, (iii) Employee was given the right to consult with an attorney prior to signing this Agreement,\n(iv) if Employee did not consult with an attorney prior to signing this\nAgreement, it was a voluntary choice on the part of Employee not to so consult, and (v) Employee is voluntarily entering into this\nAgreement.\n) The termination of Employee’s IDEX Employment, regardless of the nature of or reason for the termination, shall not\nterminate or relieve Employee from complying with the provisions of this Agreement.\n(h) Employee agrees that in the event Employee is offered to enter into an employment relationship with a third party at any\ntime during the existence of this Agreement, including in any such other period in which post-employment obligations of this\nAgreement apply, the business of which is in any way competitive with Employer or other IDEX Entity, Employee shall\nimmediately advise said other third party of the existence of this Agreement and shall provide said person or entity with a copy of\nthis Agreement.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement freely and voluntarily with the intention of being\nlegally bound by it.\nEMPLOYEE IDEX CORPORATION\nBy:\nSigned: Name:\nName: Title:\nDated: Dated:\n \nEmployee Name:\nSchedule of Restrictive Agreements\n(If none, insert “NONE”)	EX-10.34 15 iex-20171231xex1034.htn EXHIBIT 10.34\nEX-10.34\nCONFIDENTIAL INFORMATION, WORK PRODUCT\nAND RESTRICTIVE COVENANT AGREEMENT\nTHE UNDERSIGNED ("Employee") has been offered employment with IDEX Corporation or one of its Groups, Divisions or\nBusiness Units (IDEX Corporation and its former, current and future Groups, Divisions and Business Units are referred to as\n"IDEX"; any entity that is part of IDEX and at some point employs Employee is referred to as an "IDEX Entity"; and the particular\nIDEX Entity that employs Employee as of the date of this Agreement is referred to as "Employer") and desires to become an\nemployee of Employer or IDEX Entity.\nWHEREAS, it is a condition of employment that Employee enter into this Confidential Information, Work Product and Restrictive\nCovenant Agreement (the "Agreement"); and\nWHEREAS, Employee acknowledges that Employee received prior notice that Employee's execution of this Agreement is a\nrequired condition of Employee's at-will employment with Employer or other IDEX Entity.\nIN CONSIDERATION OF employment by Employer, access to and use of Confidential Information and Trade Secrets (both as\ndefined below), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nEmployee agrees as follows:\n1.\nScope of Agreement.\nThis Agreement shall apply in connection with all of Employee's activities on behalf of or with respect to Employer and/or any\nIDEX Entity.\nThis Agreement shall continue to apply and remain in full force and effect if Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee's initial Employer. If Employee is transferred to or otherwise becomes\nan\nemployee of an IDEX Entity other than Employee's initial Employer, such other entity shall thereafter be deemed to be Employer\nfor all purposes of this Agreement.\nEmployer and each IDEX Entity and their respective successors and assigns shall be beneficiaries of this Agreement and shall be\nentitled\nto\nenforce\nthis\nAgreement\nagainst\nEmployee.\nIn\nthe\nevent\nthat\nEmployee's\nemployment\nmoves\nfrom\nEmployer\nto\nany\nIDEX\nEntity, where allowed by applicable law, this Agreement shall be deemed automatically assigned to the new IDEX Entity. The\nparties otherwise agree that Employer and each IDEX Entity may assign this Agreement without notice to, or consent from,\nEmployee.\n2.\nDefinitions.\n"Confidential Information" means (a) competitively sensitive information, (b) of importance to IDEX, and (c) that becomes\nknown to you through your employment with IDEX. Confidential Information includes, but is not limited to, information about\nIDEX's operations, services, and research and development of IDEX's operations or services; names and other listings of current or\nprospective customers, vendors, suppliers, and referral sources; proposals to or the terms of any arrangements or agreements with\nany current or prospective customers, vendors, and suppliers, including payment and pricing information; the implementation of\ncustomer-specific\nprojects;\nthe\ncomposition\nor\ndescription\nof\nfuture\nservices\nthat\nwill\nor\nmay\nbe\noffered\nby\nIDEX;\nmarketing\nstrategies; financial and sales information; and technical expertise and know-how developed by IDEX, including the unique manner\nin\nwhich IDEX conducts its business. Confidential Information also includes information disclosed to IDEX by any third party\n(including but not limited to current or prospective customers) that IDEX is required to treat as confidential. Confidential\nInformation does not include information readily available to the public, so long as it was not made public by you or anyone\nworking on your behalf. It is not necessary that information, data, or materials be a trade secret in order for such information, data,\nor materials to be Confidential Information.\n"Creative Works" means and includes all works of authorship and other creative works of any kind (including but not limited to\ntrademarks, service marks and other marks, trade dresses, logos, trade names, advertising, promotional materials, product and\nprocess descriptions, manuals, report forms, spreadsheets, diagrams, plans, charts, blueprints, designs, specifications, prototypes,\nmodels,\nsoftware\ncode,\nchip\ndesigns,\nand\ncircuitry\ndesigns),\nregardless\nof\nform,\nthat\ndirectly\nor\nindirectly\nrelate\nto\nthe\nactual\nor\nanticipated business, research or development of IDEX, are directed to or capable of fulfilling any need or inquiry of any customer\nor potential customer of IDEX, and/or that are conceived, created, developed, made or produced by Employee in whole or in\npart\nduring Employee's IDEX Employment (as defined below) or within six months after Employee's IDEX Employment terminates,\nwhether conceived, created, developed, made or produced alone or with one or more other persons, whether or not any of such other\npersons are employees of IDEX, whether conceived, created, developed, made or produced during or outside normal work hours,\nand whether conceived, created, developed, made or produced within or outside the premises of IDEX. For the avoidance of doubt,\n"Creative Works" shall not be deemed to include works of authorship and other creative works that Employee conceives, creates,\ndevelops, makes or produces independent of all work that Employee does for IDEX, entirely on Employee's own time, and without\nusing any equipment, supplies, facilities, intellectual property, or trade secrets or other confidential or proprietary information of\nIDEX and do not relate to the current or anticipated business, research or development of IDEX\n"IDEX Employment" means employment with Employer and any IDEX Entity.\n"Last Day of Employment" means Employee's last day of employment with Employer or any IDEX Entity (whichever is later).\nIt\ndoes not encompass movement of Employee's employment directly from Employer to any IDEX Entity. Such movement shall be\ndeemed as continued employment.\n"Inventions" means and includes all ideas, discoveries and inventions of any kind, whether or not patentable, that directly or\nindirectly relate to the actual or anticipated business, research or development of IDEX, are directed to or capable of fulfilling any\nneed or inquiry of any customer or potential customer of IDEX, and/or that are conceived, created or developed by Employee in\nwhole or in part during Employee's IDEX Employment or within six months after Employee's IDEX Employment terminates,\nwhether\nconceived,\ncreated\nor\ndeveloped\nalone\nor\nwith\none\nor\nmore\nother\npersons,\nwhether\nor\nnot\nany\nof\nsuch\nother\npersons\nare\nemployees of IDEX, whether conceived, created or developed during or outside normal work hours, and whether conceived, created\nor developed within or outside the IDEX premises. For the avoidance of doubt, "Inventions" shall not be deemed to include ideas,\ndiscoveries and inventions that Employee conceives, creates, develops and reduces to practice independent of all work that\nEmployee does for IDEX, entirely on Employee's own time, and without using any equipment, supplies, facilities, intellectual\nproperty, or trade secrets or other confidential or proprietary information of IDEX and do not relate to the current or anticipated\nbusiness, research or development of IDEX.\n"Restricted Activities" means (a) any activity for a non-IDEX person or entity that, during the eighteen (18) months prior to\nEmployee's Last Date of Employment, is (i) competitive with the business of Employer or IDEX Entity and (ii) involves\nEmployee's performance of the same or substantially similar material responsibilities that Employee performed on behalf of\nEmployer\nor\nIDEX\nEntity;\nor\n(b)\nany\nother\nactivity\ninvolving\nthe\nunauthorized\nuse\nor\ndisclosure\n(or\nthe\nlikelihood\nof\nthe\nunauthorized use or disclosure) of Confidential Information. For purposes of this definition and of Restricted Geographic Area\nbelow, the term "material" means the expected job duties and responsibilities associated with Employee's position or that are\nrequested by Employer or IDEX Entity from time to time.\n"Restricted Geographic Area" means (a) any geographic area where Employer or IDEX Entity is doing business during\nEmployee's employment by Employer or IDEX Entity and where Employee's use or disclosure of Confidential Information would\nmaterially disadvantage Employer or IDEX Entity regardless of Employee's physical location; or (b) any geographic area where\nEmployee performed material responsibilities for Employer or IDEX Entity and, if Employee's material responsibilities are\nconfined to any specific location(s), anywhere within a forty (40) mile radius of such specific location(s) where Employee\nperformed material responsibilities both during the eighteen (18) months prior to Employee's Last Date of Employment.\n"Restricted Period" means the period of Employee's employment with Employer or IDEX Entity and the following periods of\ntime after Employee's Last Date of Employment: (a) twelve (12) months for Employee's Non-Competition\nand Non-Solicitation of or Interference with Customers obligations under paragraphs 5(a) and 5(b); and (b) twenty-four (24) months\nfor Employee's Non-Inducement and Non-Hire obligations under paragraph 5(c) of the Agreement.\n"Third Party Confidential Information" means Confidential Information of an IDEX customer, supplier, or other third party.\n"Third Party Work Product" means Work Product (as defined below) to which IDEX has agreed to grant any right, title, claim,\nlicense or interest to any customer or other third party, but only to the extent of the specific right, title, claim, license or interest\nagreed to be granted to such customer or other third party.\n"Trade Secret" means information defined as a trade secret by the applicable state Trade Secrets Act, the Federal Defend Trade\nSecrets Act of 2016, or other applicable law.\n"Work Product" means and includes (a) all Creative Works, (b) all Inventions, and (c) all other work product of any kind that\nresults from any work that Employee does for IDEX.\n3.\nConfidential Information and Trade Secrets.\n(a) Employee acknowledges that Employee will be provided and/or have access to Confidential Information and Trade Secrets\nduring Employee's IDEX Employment.\n(b) Employee shall at all times during and after the termination of Employee's IDEX Employment safeguard and protect the\nconfidential nature of all Confidential Information and Trade Secrets, and take such precautions with respect thereto as Employer or\nany IDEX Entity may from time to time request.\n(c) Employee shall not at any time during or after the termination of Employee's IDEX Employment, either individually or on\nbehalf of Employer, an IDEX Entity, or any other person or entity, directly or indirectly:\n(i)\ndisclose, use, provide, publish, transfer or otherwise make available or disseminate any Confidential Information\nor Trade Secrets, except (A) as reasonably required in connection with the proper performance of Employee's duties and\nresponsibilities\nwith\nEmployer\nor\nIDEX\nEntity,\nand\n(B)\nin\nthe\ncase\nof\nThird\nParty\nConfidential\nInformation\nor\nTrade\nSecrets, as authorized by the relevant customer, supplier or other third party; or\n(ii)\nsell, market or otherwise attempt to personally profit or benefit in any way from any Confidential Information or\nTrade Secrets.\n(d) The obligation of non-disclosure and non-use of Confidential Information and Trade Secrets shall continue to exist for so long\nas\nsuch information remains confidential (excepting improper use and/or disclosure by Employee or permissible disclosures allowed\nunder this Agreement); if, however, a court requires a shorter duration, then the maximum time allowable by law will control, which\nwill not be less than eighteen (18) months following Employee's Last Day of Employment.\n(e) Immediately upon the request of IDEX, Employee shall deliver to IDEX all Confidential Information, Trade Secrets and\nproperty that IDEX may from time to time request. In addition, at such time as Employee's IDEX Employment terminates,\nEmployee shall deliver to Employer or IDEX Entity all Confidential Information, Trade Secrets and property in Employee's\npossession or control (including in hard copy or electronic form) without retaining any copies thereof or extracts therefrom in any\nform, except for such Confidential Information, Trade Secrets or property, if any, that IDEX may specifically authorize Employee to\nretain and then only for the particular purpose or purposes for which Employee is authorized to use such Confidential Information,\nTrade Secrets or property by IDEX.\n(f) In addition to and not in lieu of the above obligations, Employee shall at all times comply with all restrictions on disclosure and\nuse of Third Party Confidential Information or Trade Secrets imposed under (i) any confidentiality, non-disclosure or other\nagreement, commitment or undertaking of IDEX with any customer, supplier or other third party of which Employee has been\nadvised or is aware, and (ii) any confidentiality, non-disclosure or other agreement, commitment or undertaking of Employee with\nany customer, supplier or other third party.\n(g) Employee will not be held criminally or civilly liable under any Federal or state trade secret law for the disclosure of a Trade\nSecret that: (i) is made (A) in confidence to a Federal, state, or local government official, either directly or indirectly, or to an\nattorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or\nother document filed in a lawsuit or other proceeding, if such filing is made under seal. Disclosure of Trade Secrets\nto\nattorneys,\nmade under seal, or pursuant to court order is also protected under 18 U.S. Code S 1833 in any retaliation lawsuit based on the\nreporting of a suspected violation of law.\n(h) Nothing in this Agreement is intended to be or will be construed to prevent, impede, or interfere with Employee's right to\nrespond accurately and fully to any question, inquiry, or request for information regarding Employee or Employee's employment\nwith Employer or IDEX Entity when required from initiating communications directly with, or responding to any inquiry from,\nor\nproviding truthful testimony and information to any Federal, state, or other regulatory authority in the course of an investigation or\nproceeding authorized by law and carried out by such agency. Employee is not required to contact Employer or IDEX Entity\nregarding the subject matter of any such communications before Employee engages in such communications. Nothing in this\nAgreement is intended to restrict Employee's legally-protected right to discuss wages, hours or other working conditions with co-\nworkers, or in any way limit Employee's rights under the National Labor Relations Act or any whistleblower act.\n4.\nWork Product.\n(a) Employee acknowledges that continuous improvement and innovation are key business strategies and objectives of IDEX,\nand, during Employee's IDEX Employment, Employee is expected to conceive, create, develop, make and produce Work\nProduct.\n(b)\nEmployee shall fully and promptly disclose to Employer or IDEX Entity all Work Product.\n(c)\nAs between Employee and IDEX, all Work Product shall be deemed to be a work made for hire and the sole and\nexclusive property of IDEX.\n(d)\nEmployee hereby assigns to IDEX all of Employee's current and future right, title, claim and interest in and to all Work\nProduct, including but not limited to all United States and foreign patent rights and copyrights.\n(e)\nEmployee shall not at any time during or after the termination of Employee's IDEX Employment, either individually or\non behalf of any other person or entity, directly or indirectly: (i) use any Work Product except (A) as reasonably required in\nconnection with the proper performance of Employee's duties and responsibilities with Employer or IDEX Entity, and (B) in the\ncase of Third Party Work Product, as authorized by the relevant customer or other third party; or (ii) sell, market, or otherwise\nattempt to personally profit or benefit in any way from any Work Product.\n5.\nRestrictive Covenants.\n(a) Non-Competition. Employee agrees that during the Restricted Period and in the Restricted Geographic Area, Employee will\nnot engage in any Restricted Activities; provided that Employee may invest Employee's funds in securities of a person engaged in a\nbusiness that is directly competitive with IDEX if the securities of such a person are listed for trading on a registered securities\nexchange or actively traded in an over-the-counter market and Employee's holdings represent less than one percent (1%) of the total\nnumber of shares or principal amount of the securities of such a person outstanding.\n(b)\nNon-Solicitation of or Interference with Customers. Employee acknowledges that the relationships that Employer and any\nIDEX Entity has with their customers and employees, the goodwill related to such relationships, and the business knowledge,\ntraining,\nand\nskills\nof\ntheir\nemployees\nhave\nbeen\ndeveloped\nwith\nsignificant\ninvestments\nof\ntime,\neffort,\nand\nexpense\non\nthe\npart\nof\nIDEX and are valuable assets of IDEX. During the Restricted Period, for the purpose of engaging in Restricted Activities,\nEmployee shall not, directly or indirectly: (i) solicit business from or perform services for, or for the benefit of, any established\ncustomer or established account of Employer or IDEX Entity with which Employee had contact, participated in the contact, or about\nwhich Employee had knowledge of Confidential Information by reason of Employee's relationship with Employer or IDEX Entity\nwithin the eighteen (18) month period prior to Employee's Last Date of Employment; (ii) solicit business from or perform services\nfor, or for the benefit of, any customer or account that was pursued by Employer or IDEX Entity and with which Employee\nhad\ncontact, participated in the contact, or about which Employee had knowledge of by reason of Employee's access to or use of\nConfidential\nInformation\nwithin\nthe\neighteen\n(18)\nmonth\nperiod\nprior\nto\nEmployee's\nLast\nDate\nof\nEmployment;\nor\n(iii)\ninfluence,\nseek to influence, or contact for the purpose of influencing or seeking to influence, any person or entity to limit or cease doing\nbusiness with Employer or IDEX Entity.\n(c) Non-Inducement and Non-Hire. During the Restricted Period, Employee shall not, directly or indirectly, solicit, hire, attempt to\nsolicit or hire, or participate in any attempt to solicit or hire for any non-IDEX entity, any person who at any time during the\neighteen (18) months immediately preceding the date of such solicitation or hire is or was an officer, employee or consultant\nof\nEmployer\nor\nIDEX\nEntity\noccupying\na\nposition\nuniquely\nessential\nto\nthe\nmanagement,\norganization,\nor\nservicing\nof\nthe\nbusiness\nof\nEmployer or IDEX Entity to resign from his or her employment, or whom Employee was aware was being actively recruited by\nIDEX, and with whom Employee had contact or participated in contact during Employee's employment with Employer or IDEX\nEntity.\n(d) Covenants are Reasonable. The parties understand and agree that the covenants in this paragraph are necessary and essential to\nprotect IDEX's proprietary and confidential business information; that the area, duration and scope of the covenants in this\nparagraph are reasonable and necessary to protect IDEX; that they do not unduly oppress or restrict Employee's ability to earn a\nlivelihood in Employee's chosen profession; that they are not an undue restraint on Employee's trade or any of the public interests\nthat may be involved; that good and valuable consideration exists for Employee's agreement to be bound by such covenants; and\nthat Employer or IDEX Entity has a legitimate business purpose in requiring Employee to abide by the covenants set forth in this\nparagraph.\n6.\nFurther Assurances.\nEmployee shall comply with all instructions and directions of Employer and any IDEX Entity and provide all assistance and\ncooperation, provide and make available all records, files and information, execute and deliver all assignments, affidavits,\ncertifications and other documents and instruments, and take and do all other actions and things that Employer or any IDEX Entity\nmay at any time and from time to time properly request to protect and preserve Confidential Information, evidence, secure, perfect\nand protect its rights, title, claims and interests in Work Product, seek and obtain United States and/or foreign patents with respect to\nWork Product, comply with and carry out agreements, commitments and undertakings made by IDEX to any customer, supplier\nor\nother third party relating to Third Party Confidential Information, Trade Secrets and/or Third Party Work Product, or carry out and\nimplement the provisions of this Agreement.\nThe IDEX Entity that requests Employee to take or perform any action or thing pursuant to this paragraph shall reimburse\nEmployee for Employee's reasonable and necessary out-of-pocket costs and expenses in taking or performing such action or things;\nprovided, however, that (i) Employee shall advise such IDEX Entity prior to incurring any out-of-pocket cost and expense in excess\nof $50.00 so that such IDEX Entity can determine whether such out-of-pocket expense is reasonable and necessary in advance of it\nbeing incurred and advise Employee whether such IDEX Entity wishes to withdraw or modify its request for Employee to take or\nperform such action or thing, (ii) Employee shall not be entitled to be reimbursed for any cost or expense that is attributable to or\narises out of any failure of Employee to comply with the provisions of this Agreement, and (iii) the obligation to reimburse\nEmployee for out-of-pocket costs and expenses shall not apply in connection with a lawsuit or other legal action to enforce this\nAgreement against Employee.\n7.\nBreach and Equitable Remedies.\nEmployee acknowledges that the restrictions contained in this Agreement, including in paragraphs 2, 3, 4 or 5 above, are necessary\nto protect the legitimate interests of IDEX and that any violation of this Agreement would result in irreparable harm and injury to\nEmployer or IDEX Entity. In the event of a breach or threatened breach by Employee of the provisions of this Agreement,\nEmployee agrees that Employer or IDEX Entity will be entitled to an injunction, without first posting bond and without notice,\nrestraining Employee from such breach or threatened breach and to any other legal or equitable remedies available to Employer or\nIDEX Entity. Employer or IDEX Entity will also be entitled to all costs and expenses (including reasonable attorneys' fees) from\nEmployee should Employee breach this Agreement.\n8.\nRestrictive Agreements and Restricted Information.\n(a)\nExcept as disclosed on the Schedule of Restrictive Agreements attached to this Agreement, Employee has not made and is not\na party or subject to any confidentiality, non-disclosure, inventions, employment or other agreement, commitment or undertaking\nwith a prior employer or any other person or entity that could limit or restrict Employee in the performance of Employee's duties\nand responsibilities with Employer or IDEX Entity.\n(b) Employee shall not at any time during Employee's IDEX Employment disclose, provide or make available to Employer, IDEX\nEntity or any customer, supplier or other third party with whom IDEX has a relationship any information, data or materials that\nEmployee has obtained from a prior employer, customer, supplier or other third party that may be subject to any restriction on\ndisclosure\nor\nuse\n("Restricted\nInformation")\nunless\nEmployee\nis\nclearly\nauthorized\nto\ndisclose,\nprovide\nor\nmake\navailable\nsuch\nRestricted Information to the person or persons to whom Employee is disclosing, providing or making available such Restricted\nInformation for the purpose or purposes for which such Restricted Information is being disclosed.\n9.\nEmployment at Will.\nUnless and except to the extent Employer or IDEX Entity may expressly agree otherwise in a separate written employment\nagreement with Employee, Employee's IDEX Employment is and shall at all times be "at will", and nothing in this Agreement is\nintended to change Employee's status as an "at will" employee or create or imply any right or expectation in Employee of\ncontinuing IDEX Employment.\n10.\nReasonableness, Severability. and Reformation.\nEmployee acknowledges that the provisions of this Agreement and the obligations imposed on Employee under this Agreement are\nfair and reasonable, not unduly burdensome or restrictive on Employee, and appropriate and necessary for the protection of the\nproperty and legitimate business interests of Employer or other IDEX Entity.\nThe provisions of this Agreement are severable. Employee agrees that if any particular paragraphs, subparagraphs, subparts,\nphrases, words, or other portions of this Agreement are determined by an appropriate court to be invalid or unenforceable as written,\nthey shall be modified as necessary to be valid or enforceable, and such modification shall not affect the remaining provisions\nof\nthis Agreement; or, if they cannot be modified to be made valid or enforceable, then they shall be severed from this Agreement, and\nall remaining non-eliminated paragraphs, subparagraphs, subparts, phrases, words, or other portions of this Agreement shall be\nenforced.\n11.\nMiscellaneous.\n(a) This Agreement shall be governed by, interpreted, and enforced in accordance with the internal laws of the State of\nDelaware of the United States of America, without regard to any principles of conflict of laws. Any action regarding this\nAgreement or Employee's employment with or separation from Employer or other IDEX Entity must be brought and\nprosecuted in the state or federal courts where the principal place of business for Employer or other IDEX Entity is located,\nand the parties will not dispute that personal jurisdiction or venue is appropriate and convenient in those courts.\n(b)\nThis Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter, and no\nrepresentation, commitment or undertaking has been made to Employee in connection with, or to induce Employee to enter into,\nthis Agreement other than as set forth herein.\n(c)\nThe rights and remedies of IDEX under this Agreement, and the liabilities and obligations of Employee under this\nAgreement, are not exclusive, but are in addition to any and all rights and remedies that IDEX may have, and any and all liabilities\nand\nobligations\nthat\nEmployee\nmay\nhave,\nunder\nany\nlaw,\nstatute,\nrule\nor\nregulation,\nany\nIDEX\ncorporate\npolicy,\nor,\nsubject\nonly\nto\nparagraph 11(b) above, any other contract or agreement.\n(d) This Agreement may be amended, modified, or terminated and compliance with the provisions of this Agreement may\nbe\nwaived only in writing signed by Employee and a duly authorized officer of Employer. The waiver of or failure to enforce the\nprovisions of this Agreement or other similar agreement that IDEX may have with Employee or any other employee shall not\nconstitute a waiver of or limit or restrict in any way the right of Employer or IDEX Entity to enforce the provisions of this\nAgreement against Employee. The rights and remedies of IDEX under this Agreement shall be in addition to, and not in lieu of, any\nrights and remedies that may be available to it independent of this Agreement.\n(e)\nThis Agreement shall continue in full force and effect notwithstanding any changes in the terms and conditions of the\nEmployee's employment with Employer or IDEX Entity, including, without limitation, any change in title, position, duties, or\nresponsibility.\n(f)\nEmployee acknowledges that (i) the signing of this Agreement is a condition to Employee being employed by Employer,\n(ii) Employee would have had no right or entitlement to IDEX Employment by Employer or other IDEX Entity if this Agreement\nhad not been signed by Employee, (iii) Employee was given the right to consult with an attorney prior to signing this Agreement,\n(iv) if Employee did not consult with an attorney prior to signing this\nAgreement, it was a voluntary choice on the part of Employee not to SO consult, and (v) Employee is voluntarily entering into this\nAgreement.\n(g)\nThe termination of Employee's IDEX Employment, regardless of the nature of or reason for the termination, shall not\nterminate or relieve Employee from complying with the provisions of this Agreement.\n(h)\nEmployee agrees that in the event Employee is offered to enter into an employment relationship with a third party at any\ntime during the existence of this Agreement, including in any such other period in which post-employment obligations of this\nAgreement apply, the business of which is in any way competitive with Employer or other IDEX Entity, Employee\nshall\nimmediately advise said other third party of the existence of this Agreement and shall provide said person or entity with a copy of\nthis Agreement.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement freely and voluntarily with the intention of being\nlegally bound by it.\nEMPLOYEE\nIDEX CORPORATION\nBy:\nSigned:\nName:\nName:\nTitle:\nDated:\nDated:\nEmployee Name:\nSchedule of Restrictive Agreements\n(If none, insert "NONE")	EX-10 .34 15 iex-20171231xex1034.htm EXHIBIT 10.34\nEX-10.34\nCONFIDENTIAL INFORMATION, WORK PRODUCT\nAND RESTRICTIVE COVENANT AGREEMENT\nTHE UNDERSIGNED (“Employee”) has been offered employment with IDEX Corporation or one of its Groups, Divisions or\nBusiness Units (IDEX Corporation and its former, current and future Groups, Divisions and Business Units are referred to as\n“IDEX”; any entity that is part of IDEX and at some point employs Employee is referred to as an “IDEX Entity”; and the particular\nIDEX Entity that employs Employee as of the date of this Agreement is referred to as “Employer”) and desires to become an\nemployee of Employer or IDEX Entity.\nWHEREAS, it is a condition of employment that Employee enter into this Confidential Information, Work Product and Restrictive\nCovenant Agreement (the “Agreement”); and\nWHEREAS, Employee acknowledges that Employee received prior notice that Employee’s execution of this Agreement is a\nrequired condition of Employee’s at-will employment with Employer or other IDEX Entity.\nIN CONSIDERATION OF employment by Employer, access to and use of Confidential Information and Trade Secrets (both as\ndefined below), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nEmployee agrees as follows:\n1.\nScope of Agreement.\nThis Agreement shall apply in connection with all of Employee’s activities on behalf of or with respect to Employer and/or any\nIDEX Entity.\nThis Agreement shall continue to apply and remain in full force and effect if Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee’s initial Employer. If Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee’s initial Employer, such other entity shall thereafter be deemed to be Employer\nfor all purposes of this Agreement.\nEmployer and each IDEX Entity and their respective successors and assigns shall be beneficiaries of this Agreement and shall be\nentitled to enforce this Agreement against Employee. In the event that Employee’s employment moves from Employer to any IDEX\nEntity, where allowed by applicable law, this Agreement shall be deemed automatically assigned to the new IDEX Entity. The\nparties otherwise agree that Employer and each IDEX Entity may assign this Agreement without notice to, or consent from,\nEmployee.\n2.\nDefinitions.\n“Confidential Information” means (a) competitively sensitive information, (b) of importance to IDEX, and (c) that becomes\nknown to you through your employment with IDEX. Confidential Information includes, but is not limited to, information about\nIDEX’s operations, services, and research and development of IDEX’s operations or services; names and other listings of current or\nprospective customers, vendors, suppliers, and referral sources; proposals to or the terms of any arrangements or agreements with\nany current or prospective customers, vendors, and suppliers, including payment and pricing information; the implementation of\ncustomer-specific projects; the composition or description of future services that will or may be offered by IDEX; marketing\nstrategies; financial and sales information; and technical expertise and know-how developed by IDEX, including the unique manner\nin which IDEX conducts its business. Confidential Information also includes information disclosed to IDEX by any third party\n(including but not limited to current or prospective customers) that IDEX is required to treat as confidential. Confidential\nInformation does not include information readily available to the public, so long as it was not made public by you or anyone\nworking on your behalf. It is not necessary that information, data, or materials be a trade secret in order for such information, data,\nor materials to be Confidential Information.\n“Creative Works” means and includes all works of authorship and other creative works of any kind (including but not limited to\ntrademarks, service marks and other marks, trade dresses, logos, trade names, advertising, promotional materials, product and\nprocess descriptions, manuals, report forms, spreadsheets, diagrams, plans, charts, blueprints, designs, specifications, prototypes,\nmodels, software code, chip designs, and circuitry designs), regardless of form, that directly or indirectly relate to the actual or\nanticipated business, research or development of IDEX, are directed to or capable of fulfilling any need or inquiry of any customer\nor potential customer of IDEX, and/or that are conceived, created, developed, made or produced by Employee in whole or in part\nduring Employee’s IDEX Employment (as defined below) or within six months after Employee’s IDEX Employment terminates,\nwhether conceived, created, developed, made or produced alone or with one or more other persons, whether or not any of such other\npersons are employees of IDEX, whether conceived, created, developed, made or produced during or outside normal work hours,\nand whether conceived, created, developed, made or produced within or outside the premises of IDEX. For the avoidance of doubt,\n“Creative Works” shall not be deemed to include works of authorship and other creative works that Employee conceives, creates,\ndevelops, makes or produces independent of all work that Employee does for IDEX, entirely on Employee’s own time, and without\nusing any equipment, supplies, facilities, intellectual property, or trade secrets or other confidential or proprietary information of\nIDEX and do not relate to the current or anticipated business, research or development of IDEX.\n“IDEX Employment” means employment with Employer and any IDEX Entity.\n“Last Day of Employment” means Employee’s last day of employment with Employer or any IDEX Entity (whichever is later). It\ndoes not encompass movement of Employee’s employment directly from Employer to any IDEX Entity. Such movement shall be\ndeemed as continued employment.\n“Inventions” means and includes all ideas, discoveries and inventions of any kind, whether or not patentable, that directly or\nindirectly relate to the actual or anticipated business, research or development of IDEX, are directed to or capable of fulfilling any\nneed or inquiry of any customer or potential customer of IDEX, and/or that are conceived, created or developed by Employee in\nwhole or in part during Employee’s IDEX Employment or within six months after Employee’s IDEX Employment terminates,\nwhether conceived, created or developed alone or with one or more other persons, whether or not any of such other persons are\nemployees of IDEX, whether conceived, created or developed during or outside normal work hours, and whether conceived, created\nor developed within or outside the IDEX premises. For the avoidance of doubt, “Inventions” shall not be deemed to include ideas,\ndiscoveries and inventions that Employee conceives, creates, develops and reduces to practice independent of all work that\nEmployee does for IDEX, entirely on Employee’s own time, and without using any equipment, supplies, facilities, intellectual\nproperty, or trade secrets or other confidential or proprietary information of IDEX and do not relate to the current or anticipated\nbusiness, research or development of IDEX.\n“Restricted Activities” means (a) any activity for a non-IDEX person or entity that, during the eighteen (18) months prior to\nEmployee’s Last Date of Employment, is (i) competitive with the business of Employer or IDEX Entity and (ii) involves\nEmployee’s performance of the same or substantially similar material responsibilities that Employee performed on behalf of\nEmployer or IDEX Entity; or (b) any other activity involving the unauthorized use or disclosure (or the likelihood of the\nunauthorized use or disclosure) of Confidential Information. For purposes of this definition and of Restricted Geographic Area\nbelow, the term “material” means the expected job duties and responsibilities associated with Employee’s position or that are\nrequested by Employer or IDEX Entity from time to time.\n“Restricted Geographic Area” means (a) any geographic area where Employer or IDEX Entity is doing business during\nEmployee’s employment by Employer or IDEX Entity and where Employee’s use or disclosure of Confidential Information would\nmaterially disadvantage Employer or IDEX Entity regardless of Employee’s physical location; or (b) any geographic area where\nEmployee performed material responsibilities for Employer or IDEX Entity and, if Employee’s material responsibilities are\nconfined to any specific location(s), anywhere within a forty (40) mile radius of such specific location(s) where Employee\nperformed material responsibilities - both during the eighteen (18) months prior to Employee’s Last Date of Employment.\n“Restricted Period” means the period of Employee’s employment with Employer or IDEX Entity and the following periods of\ntime after Employee’s Last Date of Employment: (a) twelve (12) months for Employee’s Non-Competition\nand Non-Solicitation of or Interference with Customers obligations under paragraphs 5(a) and 5(b); and (b) twenty-four (24) months\nfor Employee’s Non-Inducement and Non-Hire obligations under paragraph 5(c) of the Agreement.\n“Third Party Confidential Information” means Confidential Information of an IDEX customer, supplier, or other third party.\n“Third Party Work Product” means Work Product (as defined below) to which IDEX has agreed to grant any right, title, claim,\nlicense or interest to any customer or other third party, but only to the extent of the specific right, title, claim, license or interest\nagreed to be granted to such customer or other third party.\n“Trade Secret” means information defined as a trade secret by the applicable state Trade Secrets Act, the Federal Defend Trade\nSecrets Act of 2016, or other applicable law.\n“Work Product” means and includes (a) all Creative Works, (b) all Inventions, and (c) all other work product of any kind that\nresults from any work that Employee does for IDEX.\n3.\nConfidential Information and Trade Secrets.\n(a) Employee acknowledges that Employee will be provided and/or have access to Confidential Information and Trade Secrets\nduring Employee’s IDEX Employment.\n(b) Employee shall at all times during and after the termination of Employee’s IDEX Employment safeguard and protect the\nconfidential nature of all Confidential Information and Trade Secrets, and take such precautions with respect thereto as Employer or\nany IDEX Entity may from time to time request.\n(c) Employee shall not at any time during or after the termination of Employee’s IDEX Employment, either individually or on\nbehalf of Employer, an IDEX Entity, or any other person or entity, directly or indirectly:\n(i)\ndisclose, use, provide, publish, transfer or otherwise make available or disseminate any Confidential Information\nor Trade Secrets, except (A) as reasonably required in connection with the proper performance of Employee’s duties and\nresponsibilities with Employer or IDEX Entity, and (B) in the case of Third Party Confidential Information or Trade\nSecrets, as authorized by the relevant customer, supplier or other third party; or\n(ii)\nsell, market or otherwise attempt to personally profit or benefit in any way from any Confidential Information or\nTrade Secrets.\n(d) The obligation of non‐disclosure and non‐use of Confidential Information and Trade Secrets shall continue to exist for so long\nas such information remains confidential (excepting improper use and/or disclosure by Employee or permissible disclosures allowed\nunder this Agreement); if, however, a court requires a shorter duration, then the maximum time allowable by law will control, which\nwill not be less than eighteen (18) months following Employee’s Last Day of Employment.\n(e) Immediately upon the request of IDEX, Employee shall deliver to IDEX all Confidential Information, Trade Secrets and\nproperty that IDEX may from time to time request. In addition, at such time as Employee’s IDEX Employment terminates,\nEmployee shall deliver to Employer or IDEX Entity all Confidential Information, Trade Secrets and property in Employee’s\npossession or control (including in hard copy or electronic form) without retaining any copies thereof or extracts therefrom in any\nform, except for such Confidential Information, Trade Secrets or property, if any, that IDEX may specifically authorize Employee to\nretain and then only for the particular purpose or purposes for which Employee is authorized to use such Confidential Information,\nTrade Secrets or property by IDEX.\n(f) In addition to and not in lieu of the above obligations, Employee shall at all times comply with all restrictions on disclosure and\nuse of Third Party Confidential Information or Trade Secrets imposed under (i) any confidentiality, non-disclosure or other\nagreement, commitment or undertaking of IDEX with any customer, supplier or other third party of which Employee has been\nadvised or is aware, and (ii) any confidentiality, non-disclosure or other agreement, commitment or undertaking of Employee with\nany customer, supplier or other third party.\n(g) Employee will not be held criminally or civilly liable under any Federal or state trade secret law for the disclosure of a Trade\nSecret that: (i) is made (A) in confidence to a Federal, state, or local government official, either directly or indirectly, or to an\nattorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or\nother document filed in a lawsuit or other proceeding, if such filing is made under seal. Disclosure of Trade Secrets to attorneys,\nmade under seal, or pursuant to court order is also protected under 18 U.S . Code § 1833 in any retaliation lawsuit based on the\nreporting of a suspected violation of law.\n(h) Nothing in this Agreement is intended to be or will be construed to prevent, impede, or interfere with Employee’s right to\nrespond accurately and fully to any question, inquiry, or request for information regarding Employee or Employee’s employment\nwith Employer or IDEX Entity when required from initiating communications directly with, or responding to any inquiry from, or\nproviding truthful testimony and information to any Federal, state, or other regulatory authority in the course of an investigation or\nproceeding authorized by law and carried out by such agency. Employee is not required to contact Employer or IDEX Entity\nregarding the subject matter of any such communications before Employee engages in such communications. Nothing in this\nAgreement is intended to restrict Employee’s legally-protected right to discuss wages, hours or other working conditions with co-\nworkers, or in any way limit Employee’s rights under the National Labor Relations Act or any whistleblower act.\n4.\nWork Product.\n(a) Employee acknowledges that continuous improvement and innovation are key business strategies and objectives of IDEX,\nand, during Employee’s IDEX Employment, Employee is expected to conceive, create, develop, make and produce Work\nProduct.\n(b)\nEmployee shall fully and promptly disclose to Employer or IDEX Entity all Work Product.\n(c)\nAs between Employee and IDEX, all Work Product shall be deemed to be a work made for hire and the sole and\nexclusive property of IDEX.\n(d)\nEmployee hereby assigns to IDEX all of Employee’s current and future right, title, claim and interest in and to all Work\nProduct, including but not limited to all United States and foreign patent rights and copyrights.\n(e)\nEmployee shall not at any time during or after the termination of Employee’s IDEX Employment, either individually or\non behalf of any other person or entity, directly or indirectly: (i) use any Work Product except (A) as reasonably required in\nconnection with the proper performance of Employee’s duties and responsibilities with Employer or IDEX Entity, and (B) in the\ncase of Third Party Work Product, as authorized by the relevant customer or other third party; or (ii) sell, market, or otherwise\nattempt to personally profit or benefit in any way from any Work Product.\n5.\nRestrictive Covenants.\n(a) Non-Competition. Employee agrees that during the Restricted Period and in the Restricted Geographic Area, Employee will\nnot engage in any Restricted Activities; provided that Employee may invest Employee’s funds in securities of a person engaged in a\nbusiness that is directly competitive with IDEX if the securities of such a person are listed for trading on a registered securities\nexchange or actively traded in an over-the-counter market and Employee’s holdings represent less than one percent (1%) of the total\nnumber of shares or principal amount of the securities of such a person outstanding.\n(b) Non‐Solicitation of or Interference with Customers. Employee acknowledges that the relationships that Employer and any\nIDEX Entity has with their customers and employees, the goodwill related to such relationships, and the business knowledge,\ntraining, and skills of their employees have been developed with significant investments of time, effort, and expense on the part of\nIDEX and are valuable assets of IDEX. During the Restricted Period, for the purpose of engaging in Restricted Activities,\nEmployee shall not, directly or indirectly: (i) solicit business from or perform services for, or for the benefit of, any established\ncustomer or established account of Employer or IDEX Entity with which Employee had contact, participated in the contact, or about\nwhich Employee had knowledge of Confidential Information by reason of Employee’s relationship with Employer or IDEX Entity\nwithin the eighteen (18) month period prior to Employee’s Last Date of Employment; (ii) solicit business from or perform services\nfor, or for the benefit of, any customer or account that was pursued by Employer or IDEX Entity and with which Employee had\ncontact, participated in the contact, or about which Employee had knowledge of by reason of Employee’s access to or use of\nConfidential Information within the eighteen (18) month period prior to Employee’s Last Date of Employment; or (iii) influence,\nseek to influence, or contact for the purpose of influencing or seeking to influence, any person or entity to limit or cease doing\nbusiness with Employer or IDEX Entity.\n(c) Non‐Inducement and Non-Hire. During the Restricted Period, Employee shall not, directly or indirectly, solicit, hire, attempt to\nsolicit or hire, or participate in any attempt to solicit or hire for any non‐IDEX entity, any person who at any time during the\neighteen (18) months immediately preceding the date of such solicitation or hire is or was an officer, employee or consultant of\nEmployer or IDEX Entity occupying a position uniquely essential to the management, organization, or servicing of the business of\nEmployer or IDEX Entity to resign from his or her employment, or whom Employee was aware was being actively recruited by\nIDEX, and with whom Employee had contact or participated in contact during Employee’s employment with Employer or IDEX\nEntity.\n(d) Covenants are Reasonable. The parties understand and agree that the covenants in this paragraph are necessary and essential to\nprotect IDEX’s proprietary and confidential business information; that the area, duration and scope of the covenants in this\nparagraph are reasonable and necessary to protect IDEX; that they do not unduly oppress or restrict Employee’s ability to earn a\nlivelihood in Employee’s chosen profession; that they are not an undue restraint on Employee’s trade or any of the public interests\nthat may be involved; that good and valuable consideration exists for Employee’s agreement to be bound by such covenants; and\nthat Employer or IDEX Entity has a legitimate business purpose in requiring Employee to abide by the covenants set forth in this\nparagraph.\n6.\nFurther Assurances.\nEmployee shall comply with all instructions and directions of Employer and any IDEX Entity and provide all assistance and\ncooperation, provide and make available all records, files and information, execute and deliver all assignments, affidavits,\ncertifications and other documents and instruments, and take and do all other actions and things that Employer or any IDEX Entity\nmay at any time and from time to time properly request to protect and preserve Confidential Information, evidence, secure, perfect\nand protect its rights, title, claims and interests in Work Product, seek and obtain United States and/or foreign patents with respect to\nWork Product, comply with and carry out agreements, commitments and undertakings made by IDEX to any customer, supplier or\nother third party relating to Third Party Confidential Information, Trade Secrets and/or Third Party Work Product, or carry out and\nimplement the provisions of this Agreement.\nThe IDEX Entity that requests Employee to take or perform any action or thing pursuant to this paragraph shall reimburse\nEmployee for Employee’s reasonable and necessary out-of-pocket costs and expenses in taking or performing such action or things;\nprovided, however, that (i) Employee shall advise such IDEX Entity prior to incurring any out-of-pocket cost and expense in excess\nof $50.00 so that such IDEX Entity can determine whether such out-of-pocket expense is reasonable and necessary in advance of it\nbeing incurred and advise Employee whether such IDEX Entity wishes to withdraw or modify its request for Employee to take or\nperform such action or thing, (ii) Employee shall not be entitled to be reimbursed for any cost or expense that is attributable to or\narises out of any failure of Employee to comply with the provisions of this Agreement, and (iii) the obligation to reimburse\nEmployee for out-of-pocket costs and expenses shall not apply in connection with a lawsuit or other legal action to enforce this\nAgreement against Employee.\n7.\nBreach and Equitable Remedies.\nEmployee acknowledges that the restrictions contained in this Agreement, including in paragraphs 2, 3, 4 or 5 above, are necessary\nto protect the legitimate interests of IDEX and that any violation of this Agreement would result in irreparable harm and injury to\nEmployer or IDEX Entity. In the event of a breach or threatened breach by Employee of the provisions of this Agreement,\nEmployee agrees that Employer or IDEX Entity will be entitled to an injunction, without first posting bond and without notice,\nrestraining Employee from such breach or threatened breach and to any other legal or equitable remedies available to Employer or\nIDEX Entity. Employer or IDEX Entity will also be entitled to all costs and expenses (including reasonable attorneys’ fees) from\nEmployee should Employee breach this Agreement.\n8.\nRestrictive Agreements and Restricted Information.\n(a) Except as disclosed on the Schedule of Restrictive Agreements attached to this Agreement, Employee has not made and is not\na party or subject to any confidentiality, non-disclosure, inventions, employment or other agreement, commitment or undertaking\nwith a prior employer or any other person or entity that could limit or restrict Employee in the performance of Employee’s duties\nand responsibilities with Employer or IDEX Entity.\n(b) Employee shall not at any time during Employee’s IDEX Employment disclose, provide or make available to Employer, IDEX\nEntity or any customer, supplier or other third party with whom IDEX has a relationship any information, data or materials that\nEmployee has obtained from a prior employer, customer, supplier or other third party that may be subject to any restriction on\ndisclosure or use (“Restricted Information”) unless Employee is clearly authorized to disclose, provide or make available such\nRestricted Information to the person or persons to whom Employee is disclosing, providing or making available such Restricted\nInformation for the purpose or purposes for which such Restricted Information is being disclosed.\n9.\nEmployment at Will.\nUnless and except to the extent Employer or IDEX Entity may expressly agree otherwise in a separate written employment\nagreement with Employee, Employee’s IDEX Employment is and shall at all times be “at will”, and nothing in this Agreement is\nintended to change Employee’s status as an “at will” employee or create or imply any right or expectation in Employee of\ncontinuing IDEX Employment.\n10.\nReasonableness, Severability and Reformation.\nEmployee acknowledges that the provisions of this Agreement and the obligations imposed on Employee under this Agreement are\nfair and reasonable, not unduly burdensome or restrictive on Employee, and appropriate and necessary for the protection of the\nproperty and legitimate business interests of Employer or other IDEX Entity.\nThe provisions of this Agreement are severable. Employee agrees that if any particular paragraphs, subparagraphs, subparts,\nphrases, words, or other portions of this Agreement are determined by an appropriate court to be invalid or unenforceable as written,\nthey shall be modified as necessary to be valid or enforceable, and such modification shall not affect the remaining provisions of\nthis Agreement; or, if they cannot be modified to be made valid or enforceable, then they shall be severed from this Agreement, and\nall remaining non-eliminated paragraphs, subparagraphs, subparts, phrases, words, or other portions of this Agreement shall be\nenforced.\n11.\nMiscellaneous.\n(a) This Agreement shall be governed by, interpreted, and enforced in accordance with the internal laws of the State of\nDelaware of the United States of America, without regard to any principles of conflict of laws. Any action regarding this\nAgreement or Employee’s employment with or separation from Employer or other IDEX Entity must be brought and\nprosecuted in the state or federal courts where the principal place of business for Employer or other IDEX Entity is located,\nand the parties will not dispute that personal jurisdiction or venue is appropriate and convenient in those courts.\n(b)\nThis Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter, and no\nrepresentation, commitment or undertaking has been made to Employee in connection with, or to induce Employee to enter into,\nthis Agreement other than as set forth herein.\n(c)\nThe rights and remedies of IDEX under this Agreement, and the liabilities and obligations of Employee under this\nAgreement, are not exclusive, but are in addition to any and all rights and remedies that IDEX may have, and any and all liabilities\nand obligations that Employee may have, under any law, statute, rule or regulation, any IDEX corporate policy, or, subject only to\nparagraph 11(b) above, any other contract or agreement.\n(d)\nThis Agreement may be amended, modified, or terminated, and compliance with the provisions of this Agreement may\nbe waived only in writing signed by Employee and a duly authorized officer of Employer. The waiver of or failure to enforce the\nprovisions of this Agreement or other similar agreement that IDEX may have with Employee or any other employee shall not\nconstitute a waiver of or limit or restrict in any way the right of Employer or IDEX Entity to enforce the provisions of this\nAgreement against Employee. The rights and remedies of IDEX under this Agreement shall be in addition to, and not in lieu of, any\nrights and remedies that may be available to it independent of this Agreement.\n(e)\nThis Agreement shall continue in full force and effect notwithstanding any changes in the terms and conditions of the\nEmployee’s employment with Employer or IDEX Entity, including, without limitation, any change in title, position, duties, or\nresponsibility.\n(f)\nEmployee acknowledges that (i) the signing of this Agreement is a condition to Employee being employed by Employer,\n(ii) Employee would have had no right or entitlement to IDEX Employment by Employer or other IDEX Entity if this Agreement\nhad not been signed by Employee, (iii) Employee was given the right to consult with an attorney prior to signing this Agreement,\n(iv) if Employee did not consult with an attorney prior to signing this\nAgreement, it was a voluntary choice on the part of Employee not to so consult, and (v) Employee is voluntarily entering into this\nAgreement.\n(g)\nThe termination of Employee’s IDEX Employment, regardless of the nature of or reason for the termination, shall not\nterminate or relieve Employee from complying with the provisions of this Agreement.\n(h)\nEmployee agrees that in the event Employee is offered to enter into an employment relationship with a third party at any\ntime during the existence of this Agreement, including in any such other period in which post‐employment obligations of this\nAgreement apply, the business of which is in any way competitive with Employer or other IDEX Entity, Employee shall\nimmediately advise said other third party of the existence of this Agreement and shall provide said person or entity with a copy of\nthis Agreement.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement freely and voluntarily with the intention of being\nlegally bound by it.\nEMPLOYEE\nIDEX CORPORATION\nSigned:\nName:\nDated:\nBy:\nName:\nTitle:\nDated:\n_____________________________________________________________________________________\nEmployee Name:\nSchedule of Restrictive Agreements\n(If none, insert “NONE”)
ad8867327f8202a3e4175eb9bf93970b.pdf	effective_date jurisdiction party term	EX-10 .2 3 ex10-2 .htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY AGREEMENT\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nMarch 26, 2018\nTo: Each of the persons listed on Schedule A hereto (“Barington” or “you”)\nLadies and Gentlemen:\nThis letter agreement shall become effective upon the appointment of the Designee to the Board of Directors (the “Board”) of\nAvon Products, Inc. (the “Company”). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the\nNomination Agreement (the “Nomination Agreement”), dated as of March 26, 2018, among the Company, the Designee and the other parties\nthereto. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, including but not\nlimited to paragraph 2, the Designee may, if and to the extent he desires to do so, disclose information he obtains while serving as a member of\nthe Board to you and your Representatives (as hereinafter defined), and may discuss such information with any and all such persons, subject to\nthe terms and conditions of this letter agreement. As a result, you and your Representatives may receive certain non-public information regarding\nthe Company. You acknowledge that this information is proprietary to the Company and may include trade secrets or other business information\nthe disclosure of which could harm the Company. In consideration for, and as a condition of, the information being furnished to you and, subject\nto the restrictions in paragraph 2, the persons set forth on Schedule B hereto (collectively, the “Representatives”), you agree to treat any and all\ninformation concerning or relating to the Company or any of its subsidiaries or affiliates that is furnished to you or your Representatives\n(regardless of the manner in which it is furnished, including in written or electronic format or orally, gathered by visual inspection or otherwise)\nby the Designee, or by or on behalf of the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations,\ndocuments, records or extracts thereof containing, referring, relating to, based upon or derived from such information, in whole or in part\n(collectively, “Evaluation Material”), in accordance with the provisions of this letter agreement, and to take or abstain from taking the other\nactions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (a) is or has become generally available to the public other than\nas a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation of\nconfidentiality, (b) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being furnished to you by\nthe Designee, or by or on behalf of the Company or its agents, representatives, attorneys, advisors, directors, officers or employees (collectively,\nthe “Company Representatives”), (c) is received from a source other than the Designee, the Company or any of the Company Representatives or\n(d) was independently developed by you or one of your Representatives without use of or reference to any Evaluation Material; provided, that in\nthe case of clause (c) above, the source of such information was not believed by you, after reasonable inquiry of the disclosing person, to be\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n1\n2. You and your Representatives will, and you will direct your Representatives to, (a) keep the Evaluation Material strictly\nconfidential and (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company;\nprovided, however, that you may privately disclose any of such information: (i) to your Representatives (A) who need to know such information\nfor the sole purpose of advising you on your investment in the Company and (B) who are informed by you of the confidential nature of such\ninformation; provided, further, that you will be responsible for any violation of this letter agreement by your Representatives as if they were\nparties hereto; and (ii) to the Company and the Company Representatives. It is understood and agreed that the Designee shall not disclose to you\nor your Representatives any Legal Advice (as defined below) that may be included in the Evaluation Material with respect to which such\ndisclosure would constitute waiver of the Company’s attorney-client privilege or attorney work-product privilege. “Legal Advice” as used herein\nshall be solely and exclusively limited to the advice provided by legal counsel and shall not include factual information or the formulation or\nanalysis of business strategy that is not protected by the attorney client or attorney work product privilege.\n3. In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the Company in\nwriting by email, facsimile and certified mail so that the Company may seek a protective order or other appropriate remedy (and if the Company\nseeks such an order, you will provide such cooperation as the Company shall reasonably request), at its cost and expense. Nothing herein shall be\ndeemed to prevent you or your Representatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that\nrequires discovery, disclosure or production of the Evaluation Material if (a) you produce or disclose only that portion of the Evaluation Material\nwhich your outside legal counsel advises you is legally required to be so produced or disclosed and you inform the recipient of such Evaluation\nMaterial of the existence of this letter agreement and the confidential nature of such Evaluation Material; or (b) the Company consents in writing\nto having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other legal requirement. In no event will you\nor any of your Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the\nEvaluation Material or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material. For the avoidance of\ndoubt, it is understood that there shall be no “legal requirement” requiring you to disclose any Evaluation Material solely by virtue of the fact\nthat, absent such disclosure, you would be prohibited from purchasing, selling or engaging in derivative or other voluntary transactions with\nrespect to the Common Stock of the Company or otherwise proposing or making an offer to do any of the foregoing, or you would be unable to\nfile any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder.\n2\n4. You and your Representatives acknowledge that (a) none of the Company or any of the Company Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or\nany of the Company Representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nEvaluation Material or any errors therein or omissions therefrom. You and your Representatives (or anyone acting on your or their behalf) shall\nnot directly or indirectly initiate contact or communication with any executive or employee of, or advisor to, the Company other than the Chief\nExecutive Officer, the Chief Financial Officer, the General Counsel and/or such other persons approved in writing by the foregoing or the Board\nconcerning Evaluation Material, or to seek any information in connection therewith from any such person other than the foregoing, without the\nprior consent of the Company; provided, however, the restriction in this sentence shall not in any way apply to the Designee acting in his capacity\nas a Board member.\n5. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of\nany disclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company. At any time after the date on which the Designee is no longer a director of the\nCompany, upon the written request of the Company for any reason, (a) you and your Representatives will promptly return to the Company or\ndestroy all hard copies of the Evaluation Material and use commercially reasonable efforts to erase or delete all electronic copies of the\nEvaluation Material in your or any of your Representatives’ possession or control, provided, however, that you and your Representatives will\nhave no obligation to delete Evaluation Material in electronic form that has been automatically backed up on you or your Representatives’\ncomputer servers, and (b) you shall promptly certify to the Company that such Evaluation Material has been erased or deleted, as the case may\nbe. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your Representatives will continue to be bound by the\nobligations contained herein.\n6. You acknowledge, and will advise your Representatives, that the Evaluation Material may constitute material non-public\ninformation under applicable federal and state securities laws, and that you and your Representatives shall not, and you shall use your reasonable\nbest efforts to ensure that your Representatives, do not, trade or engage in any derivative or other transaction, on the basis of such information in\nviolation of such laws.\n3\n7. You hereby represent and warrant to the Company that (a) you have all requisite power and authority to execute and deliver this\nletter agreement and to perform your obligations hereunder, (b) this letter agreement has been duly authorized, executed and delivered by you,\nand is a valid and binding obligation, enforceable against you in accordance with its terms, (c) this letter agreement will not result in a violation\nof any terms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license,\nregulation, judgment, order or decree governing or affecting you, and (d) your entry into this letter agreement does not require approval by any\nowners or holders of any equity or other interest in you (except as has already been obtained).\n8. It is agreed that no delay or omission by the Company to exercise any right, power or remedy accruing to it upon any breach or\ndefault of any other party under this letter agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any\nsuch breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver by the Company\nof any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any\nwaiver, permit, consent or approval of any kind or character by the Company of any breach or default under this letter agreement, or any waiver\nby the Company of any provisions or conditions of this letter agreement must be in writing and shall be effective only to the extent specifically\nset forth in writing. Any permission, consent, or approval of any kind or character under this letter agreement shall be in writing and shall be\neffective only to the extent specifically set forth in such writing. The failure of the Company to insist upon strict adherence to any term of this\nletter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the right thereafter to insist upon strict\nadherence to that term or any other term of this letter agreement.\n9. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by email, when such email is sent to the email\naddress set forth below and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal\nbusiness hours at the address specified in this paragraph:\nIf to the Company:\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nAttention: General Counsel\nEmail:\njames.thompson@avon.com\n4\nwith a copy (which will not constitute notice) to:\nCravath, Swaine & Moore LLP\nWorldwide Plaza\n825 Eighth Avenue\nNew York, NY 10019\nAttention: George F. Schoen, Esq.\nTing S. Chen, Esq.\nEmail:\ngschoen@cravath.com\ntchen@cravath.com\nIf to you:\nBarington Capital Group, L.P.\n888 Seventh Avenue, 6th Floor\nNew York, New York 10019\nAttention: James A. Mitarotonda\nEmail:\njmitarotonda@barington.com\nwith a copy (which will not constitute notice) to:\nOlshan Frome & Wolosky LLP\n1325 Avenue of the Americas\nNew York NY 10019\nAttention: Steve Wolosky, Esq.\nAndrew M. Freedman, Esq.\nEmail:\nswolosky@olshanlaw.com\nafreedman@olshanlaw.com\n10. You and your Representatives recognize and agree that the value of the Evaluation Material is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms, and that, if for any reason any of the provisions of this letter agreement are not performed in\naccordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money\ndamages would not be an adequate remedy. Accordingly, you and your Representatives agree that in addition to other remedies the Company is\nentitled to at law or in equity, the Company shall be entitled to seek an injunction or injunctions to prevent breaches of this letter agreement and\nto enforce specifically the terms and provisions of this letter agreement, exclusively in the Supreme Court of the State of New York, New York\nCounty or the United States District Court for the Southern District of New York. In the event that any action shall be brought by the Company\nin equity to enforce the provisions of this letter agreement, neither you nor your Representative shall allege, and you and your Representative\nhereby waive the defense, that there is an adequate remedy at law. Furthermore, you and your Representatives irrevocably and unconditionally\n(a) consent to submit yourselves to the personal jurisdiction of the Supreme Court of the State of New York, New York County and the United\nStates District Court for the Southern District of New York in the event any dispute arises out of this letter agreement or the transactions\ncontemplated by this letter agreement, (b) agree that you shall not attempt to deny or defeat such personal jurisdiction by motion or other request\nfor leave from any such court, (c) agree that you shall not bring any action relating to this letter agreement or the transactions contemplated by\nthis letter agreement in any court other than the Supreme Court of the State of New York, New York County or the United States District Court\nfor the Southern District of New York, and waive the right to trial by jury, (d) agree to waive any bonding requirement under any applicable law,\nin the case that the Company seeks to enforce the terms by way of equitable relief and (e) consent to service of process by a reputable overnight\nmail delivery service, signature requested, to the address set forth in paragraph 9 or as otherwise provided by applicable law. THIS LETTER\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE\nLAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN\nSUCH STATE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n5\n11. This letter agreement and the Nomination Agreement contain the entire understanding of the parties with respect to the subject\nmatter hereof and thereof and may be amended only by an agreement in writing executed by the party against whom enforcement of any such\namendment is sought.\n12. If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such\nprovision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n13. This letter agreement may be executed in two or more counterparts (and may be delivered in portable document format (.pdf)),\nall of which together shall constitute a single agreement.\n14. The terms and conditions of this letter agreement will be binding upon, inure to the benefit of and be enforceable by the parties\nand their successors, heirs, executors and legal representatives. This letter agreement, and the rights and obligations herein, shall not be\nassignable or assigned, directly or indirectly, by operation of law or otherwise, by any of the parties hereto.\n15. This letter agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.\n16. This letter agreement shall expire two years from the date on which the Designee ceases to be a director of the Company; except\nthat you and your Representatives shall maintain in accordance with the confidentiality obligations set forth herein any Evaluation Material\nconstituting trade secrets for such longer time as such information constitutes a trade secret of the Company as defined under 18 U.S .C .\n§ 1839(3).\n6\n17. No licenses or rights under any patent, copyright, trademark or trade secret are granted or are to be implied by this letter\nagreement.\n18. Each of the parties hereto and its counsel cooperated and participated in the drafting and preparation of this letter agreement and\nthe documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of\nthe parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision\nthat would require interpretation of any ambiguities in this letter agreement against any party that drafted or prepared it is of no application and is\nhereby expressly waived by each of the parties , and any controversy over interpretations of this letter agreement shall be decided without regard\nto events of drafting or preparation. The term “including” shall be deemed to mean “including without limitation” in all instances.\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nAVON PRODUCTS, INC.\nBy: /s/ James Thompson\nName:James Thompson\nTitle: SVP & General Counsel\n[Signature Page to Confidentiality Agreement]\nJAMES A. MITAROTONDA, individually\n/s/ James A. Mitarotonda\nBARINGTON COMPANIES EQUITY\nPARTNERS, L.P.\nBy: Barington Companies Investors, LLC, its\ngeneral partner\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON CAPITAL GROUP, L.P.\nBy: LNA Capital Corp., its general partner\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: President and CEO\nBARINGTON COMPANIES INVESTORS, LLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON COMPANIES MANAGEMENT,\nLLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\n[Signature Page to Confidentiality Agreement]\nSCHEDULE A\nBARINGTON\n1. James A. Mitarotonda\n2. Barington Companies Equity Partners, L.P.\n3. Barington Capital Group, L.P.\n4. Barington Companies Investors, LLC\n5. Barington Companies Management, LLC\n1. Any controlled affiliate of James A. Mitarotonda or Barington Capital Group, L.P., and full-time employees of Barington Capital\nGroup, L.P. and such affiliates.\nSCHEDULE B	EX-10.2 3 ex10-2.htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY AGREEMENT\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nMarch 26, 2018\nTo:  Each of the persons listed on Schedule A hereto (“Barington” or “you”)\nLadies and Gentlemen:\nThis letter agreement shall become effective upon the appointment of the Designee to the Board of Directors (the “Board”) of\nAvon Products, Inc. (the “Company™). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the\nNomination Agreement (the “Nomination Agreement”), dated as of March 26, 2018, among the Company, the Designee and the other parties\nthereto. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, including but not\nlimited to paragraph 2, the Designee may, if and to the extent he desires to do so, disclose information he obtains while serving as a member of\nthe Board to you and your Representatives (as hereinafter defined), and may discuss such information with any and all such persons, subject to\nthe terms and conditions of this letter agreement. As a result, you and your Representatives may receive certain non-public information regarding\nthe Company. You acknowledge that this information is proprietary to the Company and may include trade secrets or other business information\nthe disclosure of which could harm the Company. In consideration for, and as a condition of, the information being furnished to you and, subject\nto the restrictions in paragraph 2, the persons set forth on Schedule B hereto (collectively, the “Representatives”), you agree to treat any and all\ninformation concerning or relating to the Company or any of its subsidiaries or affiliates that is furnished to you or your Representatives\n(regardless of the manner in which it is furnished, including in written or electronic format or orally, gathered by visual inspection or otherwise)\nby the Designee, or by or on behalf of the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations,\ndocuments, records or extracts thereof containing, referring, relating to, based upon or derived from such information, in whole or in part\n(collectively, “Evaluation Material”), in accordance with the provisions of this letter agreement, and to take or abstain from taking the other\nactions hereinafter set forth.\n \n1. The term “Evaluation Material” does not include information that (a) is or has become generally available to the public other than\nas a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation of\nconfidentiality, (b) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being furnished to you by\nthe Designee, or by or on behalf of the Company or its agents, representatives, attorneys, advisors, directors, officers or employees (collectively,\nthe “Company_Representatives™), (c) is received from a source other than the Designee, the Company or any of the Company Representatives or\n(d) was independently developed by you or one of your Representatives without use of or reference to any Evaluation Material; provided, that in\nthe case of clause (c) above, the source of such information was not believed by you, after reasonable inquiry of the disclosing person, to be\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n2. You and your Representatives will, and you will direct your Representatives to, (a) keep the Evaluation Material strictly\nconfidential and (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company;\nprovided, however, that you may privately disclose any of such information: (i) to your Representatives (A) who need to know such information\nfor the sole purpose of advising you on your investment in the Company and (B) who are informed by you of the confidential nature of such\ninformation; provided, further, that you will be responsible for any violation of this letter agreement by your Representatives as if they were\nparties hereto; and (ii) to the Company and the Company Representatives. It is understood and agreed that the Designee shall not disclose to you\nor your Representatives any Legal Advice (as defined below) that may be included in the Evaluation Material with respect to which such\ndisclosure would constitute waiver of the Company’s attorney-client privilege or attorney work-product privilege. “Legal Advice” as used herein\nshall be solely and exclusively limited to the advice provided by legal counsel and shall not include factual information or the formulation or\nanalysis of business strategy that is not protected by the attorney client or attorney work product privilege.\n3. Inthe event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the Company in\nwriting by email, facsimile and certified mail so that the Company may seek a protective order or other appropriate remedy (and if the Company\nseeks such an order, you will provide such cooperation as the Company shall reasonably request), at its cost and expense. Nothing herein shall be\ndeemed to prevent you or your Representatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that\nrequires discovery, disclosure or production of the Evaluation Material if (a) you produce or disclose only that portion of the Evaluation Material\nwhich your outside legal counsel advises you is legally required to be so produced or disclosed and you inform the recipient of such Evaluation\nMaterial of the existence of this letter agreement and the confidential nature of such Evaluation Material; or (b) the Company consents in writing\nto having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other legal requirement. In no event will you\nor any of your Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the\nEvaluation Material or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material. For the avoidance of\ndoubt, it is understood that there shall be no “legal requirement” requiring you to disclose any Evaluation Material solely by virtue of the fact\nthat, absent such disclosure, you would be prohibited from purchasing, selling or engaging in derivative or other voluntary transactions with\nrespect to the Common Stock of the Company or otherwise proposing or making an offer to do any of the foregoing, or you would be unable to\nfile any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder.\n4. You and your Representatives acknowledge that (a) none of the Company or any of the Company Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or\nany of the Company Representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nEvaluation Material or any errors therein or omissions therefrom. You and your Representatives (or anyone acting on your or their behalf) shall\nnot directly or indirectly initiate contact or communication with any executive or employee of, or advisor to, the Company other than the Chief\nExecutive Officer, the Chief Financial Officer, the General Counsel and/or such other persons approved in writing by the foregoing or the Board\nconcerning Evaluation Material, or to seek any information in connection therewith from any such person other than the foregoing, without the\nprior consent of the Company; provided, however, the restriction in this sentence shall not in any way apply to the Designee acting in his capacity\nas a Board member.\n5. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of\nany disclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company. At any time after the date on which the Designee is no longer a director of the\nCompany, upon the written request of the Company for any reason, (a) you and your Representatives will promptly return to the Company or\ndestroy all hard copies of the Evaluation Material and use commercially reasonable efforts to erase or delete all electronic copies of the\nEvaluation Material in your or any of your Representatives’ possession or control, provided, however, that you and your Representatives will\nhave no obligation to delete Evaluation Material in electronic form that has been automatically backed up on you or your Representatives’\ncomputer servers, and (b) you shall promptly certify to the Company that such Evaluation Material has been erased or deleted, as the case may\nbe. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your Representatives will continue to be bound by the\nobligations contained herein.\n6.  You acknowledge, and will advise your Representatives, that the Evaluation Material may constitute material non-public\ninformation under applicable federal and state securities laws, and that you and your Representatives shall not, and you shall use your reasonable\nbest efforts to ensure that your Representatives, do not, trade or engage in any derivative or other transaction, on the basis of such information in\nviolation of such laws.\n7. You hereby represent and warrant to the Company that (a) you have all requisite power and authority to execute and deliver this\nletter agreement and to perform your obligations hereunder, (b) this letter agreement has been duly authorized, executed and delivered by you,\nand is a valid and binding obligation, enforceable against you in accordance with its terms, (c) this letter agreement will not result in a violation\nof any terms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license,\nregulation, judgment, order or decree governing or affecting you, and (d) your entry into this letter agreement does not require approval by any\nowners or holders of any equity or other interest in you (except as has already been obtained).\n8.  Itis agreed that no delay or omission by the Company to exercise any right, power or remedy accruing to it upon any breach or\ndefault of any other party under this letter agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any\nsuch breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver by the Company\nof any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any\nwaiver, permit, consent or approval of any kind or character by the Company of any breach or default under this letter agreement, or any waiver\nby the Company of any provisions or conditions of this letter agreement must be in writing and shall be effective only to the extent specifically\nset forth in writing. Any permission, consent, or approval of any kind or character under this letter agreement shall be in writing and shall be\neffective only to the extent specifically set forth in such writing. The failure of the Company to insist upon strict adherence to any term of this\nletter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the right thereafter to insist upon strict\nadherence to that term or any other term of this letter agreement.\n9.  All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by email, when such email is sent to the email\naddress set forth below and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal\nbusiness hours at the address specified in this paragraph:\nIf to the Company:\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nAttention:  General Counsel\nEmail: james.thompson@avon.com\nwith a copy (which will not constitute notice) to:\nCravath, Swaine & Moore LLP\nWorldwide Plaza\n825 Eighth Avenue\nNew York, NY 10019\nAttention:  George F. Schoen, Esq.\nTing S. Chen, Esq.\nEmail: gschoen@cravath.com\ntchen@cravath.com\nIf to you:\nBarington Capital Group, L.P.\n888 Seventh Avenue, 6th Floor\nNew York, New York 10019\nAttention:  James A. Mitarotonda\nEmail: jmitarotonda@barington.com\nwith a copy (which will not constitute notice) to:\nOlshan Frome & Wolosky LLP\n1325 Avenue of the Americas\nNew York NY 10019\nAttention: ~ Steve Wolosky, Esq.\nAndrew M. Freedman, Esq.\nEmail: swolosky@olshanlaw.com\nafreedman@olshanlaw.com\n10.  You and your Representatives recognize and agree that the value of the Evaluation Material is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms, and that, if for any reason any of the provisions of this letter agreement are not performed in\naccordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money\ndamages would not be an adequate remedy. Accordingly, you and your Representatives agree that in addition to other remedies the Company is\nentitled to at law or in equity, the Company shall be entitled to seek an injunction or injunctions to prevent breaches of this letter agreement and\nto enforce specifically the terms and provisions of this letter agreement, exclusively in the Supreme Court of the State of New York, New York\nCounty or the United States District Court for the Southern District of New York. In the event that any action shall be brought by the Company\nin equity to enforce the provisions of this letter agreement, neither you nor your Representative shall allege, and you and your Representative\nhereby waive the defense, that there is an adequate remedy at law. Furthermore, you and your Representatives irrevocably and unconditionally\n(a) consent to submit yourselves to the personal jurisdiction of the Supreme Court of the State of New York, New York County and the United\nStates District Court for the Southern District of New York in the event any dispute arises out of this letter agreement or the transactions\ncontemplated by this letter agreement, (b) agree that you shall not attempt to deny or defeat such personal jurisdiction by motion or other request\nfor leave from any such court, (c) agree that you shall not bring any action relating to this letter agreement or the transactions contemplated by\nthis letter agreement in any court other than the Supreme Court of the State of New York, New York County or the United States District Court\nfor the Southern District of New York, and waive the right to trial by jury, (d) agree to waive any bonding requirement under any applicable law,\nin the case that the Company seeks to enforce the terms by way of equitable relief and (e) consent to service of process by a reputable overnight\nmail delivery service, signature requested, to the address set forth in paragraph 9 or as otherwise provided by applicable law. THIS LETTER\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE\nLAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN\nSUCH STATE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n11.  This letter agreement and the Nomination Agreement contain the entire understanding of the parties with respect to the subject\nmatter hereof and thereof and may be amended only by an agreement in writing executed by the party against whom enforcement of any such\namendment is sought.\n12.  If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such\nprovision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n13.  This letter agreement may be executed in two or more counterparts (and may be delivered in portable document format (.pdf)),\nall of which together shall constitute a single agreement.\n14.  The terms and conditions of this letter agreement will be binding upon, inure to the benefit of and be enforceable by the parties\nand their successors, heirs, executors and legal representatives. This letter agreement, and the rights and obligations herein, shall not be\nassignable or assigned, directly or indirectly, by operation of law or otherwise, by any of the parties hereto.\n15.  This letter agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.\n16.  This letter agreement shall expire two years from the date on which the Designee ceases to be a director of the Company; except\nthat you and your Representatives shall maintain in accordance with the confidentiality obligations set forth herein any Evaluation Material\nconstituting trade secrets for such longer time as such information constitutes a trade secret of the Company as defined under 18 U.S.C.\n§ 1839(3).\n17.  No licenses or rights under any patent, copyright, trademark or trade secret are granted or are to be implied by this letter\nagreement.\n18.  Each of the parties hereto and its counsel cooperated and participated in the drafting and preparation of this letter agreement and\nthe documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of\nthe parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision\nthat would require interpretation of any ambiguities in this letter agreement against any party that drafted or prepared it is of no application and is\nhereby expressly waived by each of the parties , and any controversy over interpretations of this letter agreement shall be decided without regard\nto events of drafting or preparation. The term “including” shall be deemed to mean “including without limitation” in all instances.\n[Signature Pages Follow]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nAVON PRODUCTS, INC.\nBy: /s/ James Thompson\nName:James Thompson\nTitle: SVP & General Counsel\n[Signature Page to Confidentiality Agreement]\nJAMES A. MITAROTONDA, individually\n/s/ James A. Mitarotonda\nBARINGTON COMPANIES EQUITY\nPARTNERS, L.P.\nBy: Barington Companies Investors, LLC, its\ngeneral partner\nBy:/s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON CAPITAL GROUP, L.P.\nBy: LNA Capital Corp., its general partner\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: President and CEO\nBARINGTON COMPANIES INVESTORS, LLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON COMPANIES MANAGEMENT,\nLLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\n[Signature Page to Confidentiality Agreement]\nBARINGTON\nJames A. Mitarotonda\nBarington Companies Equity Partners, L.P.\nBarington Capital Group, L.P.\nBarington Companies Investors, LLC\nBarington Companies Management, LL.C\nSCHEDULE A\fSCHEDULE B\n1. Any controlled affiliate of James A. Mitarotonda or Barington Capital Group, L.P., and full-time employees of Barington Capital\nGroup, L.P. and such affiliates.	EX-10.2 ex10-2.htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY AGREEMENT\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nMarch 26, 2018\nTo: Each of the persons listed on Schedule A hereto ("Barington" or "you")\nLadies and Gentlemen:\nThis letter agreement shall become effective upon the appointment of the Designee to the Board of Directors (the "Board") of\nAvon Products, Inc. (the "Company."). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the\nNomination Agreement (the "Nomination Agreement"), dated as of March 26, 2018, among the Company, the Designee and the other parties\nthereto. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, including but not\nlimited to paragraph 2, the Designee may, if and to the extent he desires to do so, disclose information he obtains while serving as a member of\nthe Board to you and your Representatives (as hereinafter defined), and may discuss such information with any and all such persons, subject\nto\nthe terms and conditions of this letter agreement. As a result, you and your Representatives may receive certain non-public information regarding\nthe Company. You acknowledge that this information is proprietary to the Company and may include trade secrets or other business information\nthe disclosure of which could harm the Company. In consideration for, and as a condition of, the information being furnished to you and, subject\nto the restrictions in paragraph 2, the persons set forth on Schedule B hereto (collectively, the "Representatives"), you agree to treat any and all\ninformation concerning or relating to the Company or any of its subsidiaries or affiliates that is furnished to you or your Representatives\n(regardless of the manner in which it is furnished, including in written or electronic format or orally, gathered by visual inspection or otherwise)\nby the Designee, or by or on behalf of the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations,\ndocuments, records or extracts thereof containing, referring, relating to, based upon or derived from such information, in whole or in part\n(collectively, "Evaluation Material"), in accordance with the provisions of this letter agreement, and to take or abstain from taking the other\nactions hereinafter set forth.\n1.\nThe term "Evaluation Material" does not include information that (a) is or has become generally available to the public other than\nas a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation of\nconfidentiality, (b) was within your or any of your Representatives' possession on a non-confidential basis prior to its being furnished to you by\nthe Designee, or by or on behalf of the Company or its agents, representatives, attorneys, advisors, directors, officers or employees (collectively,\nthe "Company. Representatives"), (c) is received from a source other than the Designee, the Company or any of the Company Representatives or\n(d) was independently developed by you or one of your Representatives without use of or reference to any Evaluation Material; provided, that in\nthe case of clause (c) above, the source of such information was not believed by you, after reasonable inquiry of the disclosing person, to be\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n1\n2.\nYou and your Representatives will, and you will direct your Representatives to, (a) keep the Evaluation Material strictly\nconfidential and (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company;\nprovided, however, that you may privately disclose any of such information: (i) to your Representatives (A) who need to know such information\nfor the sole purpose of advising you on your investment in the Company and (B) who are informed by you of the confidential nature of such\ninformation; provided, further, that you will be responsible for any violation of this letter agreement by your Representatives as if they were\nparties hereto; and (ii) to the Company and the Company Representatives. It is understood and agreed that the Designee shall not disclose to you\nor your Representatives any Legal Advice (as defined below) that may be included in the Evaluation Material with respect to which such\ndisclosure would constitute waiver of the Company's attorney-client privilege or attorney work-product privilege. "Legal Advice" as used herein\nshall be solely and exclusively limited to the advice provided by legal counsel and shall not include factual information or the formulation or\nanalysis of business strategy that is not protected by the attorney client or attorney work product privilege.\n3.\nIn the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the Company in\nwriting by email, facsimile and certified mail so that the Company may seek a protective order or other appropriate remedy (and if the Company\nseeks such an order, you will provide such cooperation as the Company shall reasonably request), at its cost and expense. Nothing herein shall be\ndeemed to prevent you or your Representatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that\nrequires\ndiscovery, disclosure or production of the Evaluation Material if (a) you produce or disclose only that portion of the Evaluation Material\nwhich your outside legal counsel advises you is legally required to be so produced or disclosed and you inform the recipient of such Evaluation\nMaterial of the existence of this letter agreement and the confidential nature of such Evaluation Material; or (b) the Company consents in writing\nto having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other legal requirement. In no event will you\nor\nany of your Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the\nEvaluation Material or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material. For the avoidance\nof\ndoubt, it is understood that there shall be no "legal requirement" requiring you to disclose any Evaluation Material solely by virtue of the fact\nthat, absent such disclosure, you would be prohibited from purchasing, selling or engaging in derivative or other voluntary transactions with\nrespect to the Common Stock of the Company or otherwise proposing or making an offer to do any of the foregoing, or you would be unable to\nfile any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder.\n2\n4.\nYou and your Representatives acknowledge that (a) none of the Company or any of the Company Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or\nany of the Company Representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nEvaluation Material or any errors therein or omissions therefrom. You and your Representatives (or anyone acting on your or their behalf) shall\nnot directly or indirectly initiate contact or communication with any executive or employee of, or advisor to, the Company other than the Chief\nExecutive Officer, the Chief Financial Officer, the General Counsel and/or such other persons approved in writing by the foregoing or the Board\nconcerning Evaluation Material, or to seek any information in connection therewith from any such person other than the foregoing, without the\nprior\nconsent\nof\nthe Company; provided, however, the restriction in this sentence shall not in any way apply to the Designee acting in his capacity\nas a Board member.\n5.\nAll Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of\nany disclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company. At any time after the date on which the Designee is no longer a director of the\nCompany, upon the written request of the Company for any reason, (a) you and your Representatives will promptly return to the Company or\ndestroy all hard copies of the Evaluation Material and use commercially reasonable efforts to erase or delete all electronic copies of the\nEvaluation Material in your or any of your Representatives' possession or control, provided, however, that you and your Representatives will\nhave no obligation to delete Evaluation Material in electronic form that has been automatically backed up on you or your Representatives'\ncomputer servers, and (b) you shall promptly certify to the Company that such Evaluation Material has been erased or deleted, as the case may\nbe. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your Representatives will continue to be bound by\nthe\nobligations contained herein.\n6. You acknowledge, and will advise your Representatives, that the Evaluation Material may constitute material non-public\ninformation under applicable federal and state securities laws, and that you and your Representatives shall not, and you shall use your reasonable\nbest efforts to ensure that your Representatives, do not, trade or engage in any derivative or other transaction, on the basis of such information in\nviolation of such laws.\n3\n7.\nYou hereby represent and warrant to the Company that (a) you have all requisite power and authority to execute and deliver\nthis\nletter agreement and to perform your obligations hereunder, (b) this letter agreement has been duly authorized, executed and delivered by you,\nand is a valid and binding obligation, enforceable against you in accordance with its terms, (c) this letter agreement will not result in a violation\nof any terms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license,\nregulation, judgment, order or decree governing or affecting you, and (d) your entry into this letter agreement does not require approval by any\nowners or holders of any equity or other interest in you (except as has already been obtained).\n8. It is agreed that no delay or omission by the Company to exercise any right, power or remedy accruing to it upon any breach or\ndefault of any other party under this letter agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any\nsuch breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver by the Company\nof\nany\nsingle breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any\nwaiver, permit, consent or approval of any kind or character by the Company of any breach or default under this letter agreement, or any waiver\nby the Company of any provisions or conditions of this letter agreement must be in writing and shall be effective only to the extent specifically\nset forth in writing. Any permission, consent, or approval of any kind or character under this letter agreement shall be in writing and shall be\neffective only to the extent specifically set forth in such writing. The failure of the Company to insist upon strict adherence to any term of this\nletter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the right thereafter to insist upon strict\nadherence to that term or any other term of this letter agreement.\n9.\nAll notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by email, when such email is sent to the email\naddress set forth below and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal\nbusiness hours at the address specified in this paragraph:\nIf to the Company:\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nAttention: General Counsel\nEmail: james.thompson@avon.com\n4\nwith a copy (which will not constitute notice) to:\nCravath, Swaine & Moore LLP\nWorldwide Plaza\n825 Eighth Avenue\nNew York, NY 10019\nAttention: George F. Schoen, Esq.\nTing S. Chen, Esq.\nEmail:\ngschoen@cravath.com\ntchen@cravath.com\nIf to you:\nBarington Capital Group, L.P.\n888 Seventh Avenue, 6th Floor\nNew York, New York 10019\nAttention: James A. Mitarotonda\nEmail: jmitarotonda@barington.com\nwith a copy (which will not constitute notice) to:\nOlshan Frome & Wolosky LLP\n1325 Avenue of the Americas\nNew York NY 10019\nAttention: Steve Wolosky, Esq.\nAndrew M. Freedman, Esq.\nEmail:\nswolosky@olshanlaw.com\nafreedman@olshanlaw.com\n10.\nYou and your Representatives recognize and agree that the value of the Evaluation Material is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms, and that, if for any reason any of the provisions of this letter agreement are not performed in\naccordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money\ndamages would not be an adequate remedy. Accordingly, you and your Representatives agree that in addition to other remedies the Company\nis\nentitled to at law or in equity, the Company shall be entitled to seek an injunction or injunctions to prevent breaches of this letter agreement\nand\nto enforce specifically the terms and provisions of this letter agreement, exclusively in the Supreme Court of the State of New York, New York\nCounty or the United States District Court for the Southern District of New York. In the event that any action shall be brought by the Company\nin equity to enforce the provisions of this letter agreement, neither you nor your Representative shall allege, and you and your Representative\nhereby waive the defense, that there is an adequate remedy at law. Furthermore, you and your Representatives irrevocably and unconditionally\n(a) consent to submit yourselves to the persona jurisdiction of the Supreme Court of the State of New York, New York County and the United\nStates District Court for the Southern District of New York in the event any dispute arises out of this letter agreement or the transactions\ncontemplated by this letter agreement, (b) agree that you shall not attempt to deny or defeat such personal jurisdiction by motion or other request\nfor leave from any such court, (c) agree that you shall not bring any action relating to this letter agreement or the transactions contemplated by\nthis\nletter agreement in any court other than the Supreme Court of the State of New York, New York County or the United States District Court\nfor the Southern District of New York, and waive the right to trial by jury, (d) agree to waive any bonding requirement under any applicable law,\nin the case that the Company seeks to enforce the terms by way of equitable relief and (e) consent to service of process by a reputable overnight\nmail delivery service, signature requested, to the address set forth in paragraph 9 or as otherwise provided by applicable law. THIS LETTER\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE\nLAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN\nSUCH STATE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n5\n11. This letter agreement and the Nomination Agreement contain the entire understanding of the parties with respect to the subject\nmatter hereof and thereof and may be amended only by an agreement in writing executed by the party against whom enforcement of any such\namendment is sought.\n12.\nIf at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such\nprovision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n13. This letter agreement may be executed in two or more counterparts (and may be delivered in portable document format (.pdf)),\nall of which together shall constitute a single agreement.\n14.\nThe terms and conditions of this letter agreement will be binding upon, inure to the benefit of and be enforceable by the parties\nand their successors, heirs, executors and legal representatives. This letter agreement, and the rights and obligations herein, shall not be\nassignable or assigned, directly or indirectly, by operation of law or otherwise, by any of the parties hereto.\n15.\nThis letter agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.\n16. This letter agreement shall expire two years from the date on which the Designee ceases to be a director of the Company; except\nthat you and your Representatives shall maintain in accordance with the confidentiality obligations set forth herein any Evaluation Material\nconstituting trade secrets for such longer time as such information constitutes a trade secret of the Company as defined under 18 U.S.C.\n8 1839(3).\n6\n17.\nNo licenses or rights under any patent, copyright, trademark or trade secret are granted or are to be implied by this letter\nagreement.\n18.\nEach of the parties hereto and its counsel cooperated and participated in the drafting and preparation of this letter agreement and\nthe documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of\nthe parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision\nthat would require interpretation of any ambiguities in this letter agreement against any party that drafted or prepared it is of no application and\nis\nhereby expressly waived by each of the parties and any controversy over interpretations of this letter agreement shall be decided without regard\nto events of drafting or preparation. The term "including" shall be deemed to mean "including without limitation" in all instances.\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nAVON PRODUCTS, INC.\nBy: /s/ James Thompson\nName:James Thompson\nTitle: SVP & General Counsel\n[Signature Page to Confidentiality Agreement]\nJAMES A. MITAROTONDA, individually\n/s/ James A. Mitarotonda\nBARINGTON COMPANIES EQUITY\nPARTNERS, L.P.\nBy: Barington Companies Investors, LLC, its\ngeneral partner\nBy:/s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON CAPITAL GROUP, L.P.\nBy: LNA Capital Corp. its general partner\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: President and CEO\nBARINGTON COMPANIES INVESTORS, LLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON COMPANIES MANAGEMENT,\nLLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\n[Signature Page to Confidentiality Agreement]\nSCHEDULE A\nBARINGTON\n1.\nJames A. Mitarotonda\n2.\nBarington Companies Equity Partners, L.P.\n3.\nBarington Capital Group, L.P.\n4.\nBarington Companies Investors, LLC\n5.\nBarington Companies Management, LLC\nSCHEDULE B\n1.\nAny controlled affiliate of James A. Mitarotonda or Barington Capital Group, L.P., and full-time employees of Barington Capital\nGroup, L.P. and such affiliates.	EX-10 .2 3 ex10-2 .htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY AGREEMENT\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nMarch 26, 2018\nTo: Each of the persons listed on Schedule A hereto (“Barington” or “you”)\nLadies and Gentlemen:\nThis letter agreement shall become effective upon the appointment of the Designee to the Board of Directors (the “Board”) of\nAvon Products, Inc. (the “Company”). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the\nNomination Agreement (the “Nomination Agreement”), dated as of March 26, 2018, among the Company, the Designee and the other parties\nthereto. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, including but not\nlimited to paragraph 2, the Designee may, if and to the extent he desires to do so, disclose information he obtains while serving as a member of\nthe Board to you and your Representatives (as hereinafter defined), and may discuss such information with any and all such persons, subject to\nthe terms and conditions of this letter agreement. As a result, you and your Representatives may receive certain non-public information regarding\nthe Company. You acknowledge that this information is proprietary to the Company and may include trade secrets or other business information\nthe disclosure of which could harm the Company. In consideration for, and as a condition of, the information being furnished to you and, subject\nto the restrictions in paragraph 2, the persons set forth on Schedule B hereto (collectively, the “Representatives”), you agree to treat any and all\ninformation concerning or relating to the Company or any of its subsidiaries or affiliates that is furnished to you or your Representatives\n(regardless of the manner in which it is furnished, including in written or electronic format or orally, gathered by visual inspection or otherwise)\nby the Designee, or by or on behalf of the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations,\ndocuments, records or extracts thereof containing, referring, relating to, based upon or derived from such information, in whole or in part\n(collectively, “Evaluation Material”), in accordance with the provisions of this letter agreement, and to take or abstain from taking the other\nactions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (a) is or has become generally available to the public other than\nas a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation of\nconfidentiality, (b) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being furnished to you by\nthe Designee, or by or on behalf of the Company or its agents, representatives, attorneys, advisors, directors, officers or employees (collectively,\nthe “Company Representatives”), (c) is received from a source other than the Designee, the Company or any of the Company Representatives or\n(d) was independently developed by you or one of your Representatives without use of or reference to any Evaluation Material; provided, that in\nthe case of clause (c) above, the source of such information was not believed by you, after reasonable inquiry of the disclosing person, to be\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n1\n2. You and your Representatives will, and you will direct your Representatives to, (a) keep the Evaluation Material strictly\nconfidential and (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company;\nprovided, however, that you may privately disclose any of such information: (i) to your Representatives (A) who need to know such information\nfor the sole purpose of advising you on your investment in the Company and (B) who are informed by you of the confidential nature of such\ninformation; provided, further, that you will be responsible for any violation of this letter agreement by your Representatives as if they were\nparties hereto; and (ii) to the Company and the Company Representatives. It is understood and agreed that the Designee shall not disclose to you\nor your Representatives any Legal Advice (as defined below) that may be included in the Evaluation Material with respect to which such\ndisclosure would constitute waiver of the Company’s attorney-client privilege or attorney work-product privilege. “Legal Advice” as used herein\nshall be solely and exclusively limited to the advice provided by legal counsel and shall not include factual information or the formulation or\nanalysis of business strategy that is not protected by the attorney client or attorney work product privilege.\n3. In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the Company in\nwriting by email, facsimile and certified mail so that the Company may seek a protective order or other appropriate remedy (and if the Company\nseeks such an order, you will provide such cooperation as the Company shall reasonably request), at its cost and expense. Nothing herein shall be\ndeemed to prevent you or your Representatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that\nrequires discovery, disclosure or production of the Evaluation Material if (a) you produce or disclose only that portion of the Evaluation Material\nwhich your outside legal counsel advises you is legally required to be so produced or disclosed and you inform the recipient of such Evaluation\nMaterial of the existence of this letter agreement and the confidential nature of such Evaluation Material; or (b) the Company consents in writing\nto having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other legal requirement. In no event will you\nor any of your Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the\nEvaluation Material or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material. For the avoidance of\ndoubt, it is understood that there shall be no “legal requirement” requiring you to disclose any Evaluation Material solely by virtue of the fact\nthat, absent such disclosure, you would be prohibited from purchasing, selling or engaging in derivative or other voluntary transactions with\nrespect to the Common Stock of the Company or otherwise proposing or making an offer to do any of the foregoing, or you would be unable to\nfile any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder.\n2\n4. You and your Representatives acknowledge that (a) none of the Company or any of the Company Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or\nany of the Company Representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nEvaluation Material or any errors therein or omissions therefrom. You and your Representatives (or anyone acting on your or their behalf) shall\nnot directly or indirectly initiate contact or communication with any executive or employee of, or advisor to, the Company other than the Chief\nExecutive Officer, the Chief Financial Officer, the General Counsel and/or such other persons approved in writing by the foregoing or the Board\nconcerning Evaluation Material, or to seek any information in connection therewith from any such person other than the foregoing, without the\nprior consent of the Company; provided, however, the restriction in this sentence shall not in any way apply to the Designee acting in his capacity\nas a Board member.\n5. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of\nany disclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company. At any time after the date on which the Designee is no longer a director of the\nCompany, upon the written request of the Company for any reason, (a) you and your Representatives will promptly return to the Company or\ndestroy all hard copies of the Evaluation Material and use commercially reasonable efforts to erase or delete all electronic copies of the\nEvaluation Material in your or any of your Representatives’ possession or control, provided, however, that you and your Representatives will\nhave no obligation to delete Evaluation Material in electronic form that has been automatically backed up on you or your Representatives’\ncomputer servers, and (b) you shall promptly certify to the Company that such Evaluation Material has been erased or deleted, as the case may\nbe. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your Representatives will continue to be bound by the\nobligations contained herein.\n6. You acknowledge, and will advise your Representatives, that the Evaluation Material may constitute material non-public\ninformation under applicable federal and state securities laws, and that you and your Representatives shall not, and you shall use your reasonable\nbest efforts to ensure that your Representatives, do not, trade or engage in any derivative or other transaction, on the basis of such information in\nviolation of such laws.\n3\n7. You hereby represent and warrant to the Company that (a) you have all requisite power and authority to execute and deliver this\nletter agreement and to perform your obligations hereunder, (b) this letter agreement has been duly authorized, executed and delivered by you,\nand is a valid and binding obligation, enforceable against you in accordance with its terms, (c) this letter agreement will not result in a violation\nof any terms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license,\nregulation, judgment, order or decree governing or affecting you, and (d) your entry into this letter agreement does not require approval by any\nowners or holders of any equity or other interest in you (except as has already been obtained).\n8. It is agreed that no delay or omission by the Company to exercise any right, power or remedy accruing to it upon any breach or\ndefault of any other party under this letter agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any\nsuch breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver by the Company\nof any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any\nwaiver, permit, consent or approval of any kind or character by the Company of any breach or default under this letter agreement, or any waiver\nby the Company of any provisions or conditions of this letter agreement must be in writing and shall be effective only to the extent specifically\nset forth in writing. Any permission, consent, or approval of any kind or character under this letter agreement shall be in writing and shall be\neffective only to the extent specifically set forth in such writing. The failure of the Company to insist upon strict adherence to any term of this\nletter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the right thereafter to insist upon strict\nadherence to that term or any other term of this letter agreement.\n9. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by email, when such email is sent to the email\naddress set forth below and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal\nbusiness hours at the address specified in this paragraph:\nIf to the Company:\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nAttention: General Counsel\nEmail:\njames.thompson@avon.com\n4\nwith a copy (which will not constitute notice) to:\nCravath, Swaine & Moore LLP\nWorldwide Plaza\n825 Eighth Avenue\nNew York, NY 10019\nAttention: George F. Schoen, Esq.\nTing S. Chen, Esq.\nEmail:\ngschoen@cravath.com\ntchen@cravath.com\nIf to you:\nBarington Capital Group, L.P.\n888 Seventh Avenue, 6th Floor\nNew York, New York 10019\nAttention: James A. Mitarotonda\nEmail:\njmitarotonda@barington.com\nwith a copy (which will not constitute notice) to:\nOlshan Frome & Wolosky LLP\n1325 Avenue of the Americas\nNew York NY 10019\nAttention: Steve Wolosky, Esq.\nAndrew M. Freedman, Esq.\nEmail:\nswolosky@olshanlaw.com\nafreedman@olshanlaw.com\n10. You and your Representatives recognize and agree that the value of the Evaluation Material is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms, and that, if for any reason any of the provisions of this letter agreement are not performed in\naccordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money\ndamages would not be an adequate remedy. Accordingly, you and your Representatives agree that in addition to other remedies the Company is\nentitled to at law or in equity, the Company shall be entitled to seek an injunction or injunctions to prevent breaches of this letter agreement and\nto enforce specifically the terms and provisions of this letter agreement, exclusively in the Supreme Court of the State of New York, New York\nCounty or the United States District Court for the Southern District of New York. In the event that any action shall be brought by the Company\nin equity to enforce the provisions of this letter agreement, neither you nor your Representative shall allege, and you and your Representative\nhereby waive the defense, that there is an adequate remedy at law. Furthermore, you and your Representatives irrevocably and unconditionally\n(a) consent to submit yourselves to the personal jurisdiction of the Supreme Court of the State of New York, New York County and the United\nStates District Court for the Southern District of New York in the event any dispute arises out of this letter agreement or the transactions\ncontemplated by this letter agreement, (b) agree that you shall not attempt to deny or defeat such personal jurisdiction by motion or other request\nfor leave from any such court, (c) agree that you shall not bring any action relating to this letter agreement or the transactions contemplated by\nthis letter agreement in any court other than the Supreme Court of the State of New York, New York County or the United States District Court\nfor the Southern District of New York, and waive the right to trial by jury, (d) agree to waive any bonding requirement under any applicable law,\nin the case that the Company seeks to enforce the terms by way of equitable relief and (e) consent to service of process by a reputable overnight\nmail delivery service, signature requested, to the address set forth in paragraph 9 or as otherwise provided by applicable law. THIS LETTER\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE\nLAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN\nSUCH STATE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n5\n11. This letter agreement and the Nomination Agreement contain the entire understanding of the parties with respect to the subject\nmatter hereof and thereof and may be amended only by an agreement in writing executed by the party against whom enforcement of any such\namendment is sought.\n12. If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such\nprovision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n13. This letter agreement may be executed in two or more counterparts (and may be delivered in portable document format (.pdf)),\nall of which together shall constitute a single agreement.\n14. The terms and conditions of this letter agreement will be binding upon, inure to the benefit of and be enforceable by the parties\nand their successors, heirs, executors and legal representatives. This letter agreement, and the rights and obligations herein, shall not be\nassignable or assigned, directly or indirectly, by operation of law or otherwise, by any of the parties hereto.\n15. This letter agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.\n16. This letter agreement shall expire two years from the date on which the Designee ceases to be a director of the Company; except\nthat you and your Representatives shall maintain in accordance with the confidentiality obligations set forth herein any Evaluation Material\nconstituting trade secrets for such longer time as such information constitutes a trade secret of the Company as defined under 18 U.S .C .\n§ 1839(3).\n6\n17. No licenses or rights under any patent, copyright, trademark or trade secret are granted or are to be implied by this letter\nagreement.\n18. Each of the parties hereto and its counsel cooperated and participated in the drafting and preparation of this letter agreement and\nthe documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of\nthe parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision\nthat would require interpretation of any ambiguities in this letter agreement against any party that drafted or prepared it is of no application and is\nhereby expressly waived by each of the parties , and any controversy over interpretations of this letter agreement shall be decided without regard\nto events of drafting or preparation. The term “including” shall be deemed to mean “including without limitation” in all instances.\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nAVON PRODUCTS, INC.\nBy: /s/ James Thompson\nName:James Thompson\nTitle: SVP & General Counsel\n[Signature Page to Confidentiality Agreement]\nJAMES A. MITAROTONDA, individually\n/s/ James A. Mitarotonda\nBARINGTON COMPANIES EQUITY\nPARTNERS, L.P.\nBy: Barington Companies Investors, LLC, its\ngeneral partner\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON CAPITAL GROUP, L.P.\nBy: LNA Capital Corp., its general partner\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: President and CEO\nBARINGTON COMPANIES INVESTORS, LLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON COMPANIES MANAGEMENT,\nLLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\n[Signature Page to Confidentiality Agreement]\nSCHEDULE A\nBARINGTON\n1. James A. Mitarotonda\n2. Barington Companies Equity Partners, L.P.\n3. Barington Capital Group, L.P.\n4. Barington Companies Investors, LLC\n5. Barington Companies Management, LLC\n1. Any controlled affiliate of James A. Mitarotonda or Barington Capital Group, L.P., and full-time employees of Barington Capital\nGroup, L.P. and such affiliates.\nSCHEDULE B
b2260589869814f02769a4c307593043.pdf	effective_date jurisdiction party term	EX-99.(E)(4) 4 dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nLOGO\nMatthew M. Bennett\nExecutive Vice President,\nGeneral Counsel and Business Development\nApril 19, 2007\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, OH 43017\nAttn: JV Wulf\nRe: Confidentiality Agreement (this “Agreement”)\nLadies and Gentlemen:\nIn connection with your consideration of a possible acquisition (the “Transaction”) of VIASYS Healthcare Inc. (the “Company”), you have\nrequested the right to review certain non-public information regarding the Company. In consideration of, and as a condition to, furnishing you with\nsuch information and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you by us or any of our\naffiliates, directors, officers, employees, advisors, agents, representatives or “controlling persons” (within the meaning of the Securities Exchange\nAct of 1934, as amended (the “1934 Act”)) (such persons for either you or the Company being herein referred to collectively as “Representatives”)\nin connection with your consideration of a Transaction (such information being herein referred to as “Evaluation Material”), the Company hereby\nrequests your agreement as follows:\n1. You and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating and, if applicable, negotiating a\npossible Transaction with the Company involving you or your affiliates (the “Permitted Purpose”) and (ii) will keep the Evaluation\nMaterial strictly confidential and will not (except as requested pursuant to, or required by applicable law, regulation or legal process,\nincluding without limitation the rules and regulations of the New York Stock Exchange (the “NYSE Rules”), and only after compliance\nwith paragraph 3 below), without the Company’s prior written consent, disclose any information in the Evaluation Material, except that\nthe Evaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information for\nthe Permitted Purpose (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature\nof the Evaluation Material and shall be instructed to comply with the terms of this Agreement). You agree to be responsible for any\nbreach of this Agreement by your Representatives.\n2. The term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives in violation of this Agreement) or (ii) was or becomes\navailable to you on a non-confidential basis from a person who, to your knowledge after reasonable inquiry, is not otherwise\nbound by a confidentiality agreement with the Company or its Representatives or otherwise prohibited from transmitting the information\nto you or (iii) was or is developed or discovered by you or your Representatives without reference to the Evaluation Material. Evaluation\nMaterial includes both information previously provided to you and information provided to you in the future. As used in this Agreement,\nthe term “person” shall be broadly interpreted to include, without limitation, any corporation, company, joint venture, partnership or\nindividual.\n3. In the event that you receive a request or are required to disclose all or any part of the information contained in the Evaluation Material\npursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar judicial process or pursuant to the NYSE Rules,\nyou agree (to the extent permitted by law and the NYSE Rules) to (i) immediately notify the Company of the existence, terms and\ncircumstances surrounding such a request or requirement, (ii) consult with the Company on the advisability of taking legally available\nsteps (at the Company’s expense with respect to out-of-pocket costs) to resist or narrow such request or requirement, and (iii) if\ndisclosure of such information is required, disclose any such information which you are advised by legal counsel is legally required (or\nrequired under the NYSE Rules) to be disclosed and you will exercise your reasonable best efforts (at the Company’s expense with\nrespect to out-of-pocket costs) to obtain an order or other reliable assurance that confidential treatment will be accorded to such\ninformation.\n4. Unless otherwise required by law or the NYSE Rules in the opinion of your counsel, neither you nor your Representatives will, without\nthe Company’s prior written consent, disclose to any person either the fact that discussions or negotiations are taking place concerning a\npossible Transaction between the Company and you, or any of the terms, conditions or other facts with respect to any such possible\nTransaction, including, without limitation, the status thereof and the fact that the Evaluation Material has been made available to you.\nThe Company will not, without your prior written consent, disclose to any person (other than its Representatives) the fact that the\nEvaluation Material has been made available to you, that you are considering the Transaction involving the Company, or that discussions\nor negotiations are taking or have taken place with you concerning the Transaction or involving you or any term, condition or other fact\nrelating to the Transaction from which a person could be reasonably expected to identify you.\n5. Until the earlier of the consummation by you of a Transaction and 18 months from the date of this Agreement, you agree, and you agree\nto cause your affiliates (used herein with the meaning set forth in Rule 12b-2 of the Securities Exchange Act of 1934 (the “Exchange\nAct”)), not to, directly or indirectly, solicit for purposes of employment, offer to hire, entice away, or offer to enter into any employment,\nconsulting (or similar) contract with any employee of the Company or any of its subsidiaries with whom you have had contact or who\nbecame known\n2\nto you in reasonable detail in connection with the Permitted Purpose, or otherwise solicit, induce or otherwise encourage any such person\nto discontinue, cancel or refrain from entering into any relationship (contractual or otherwise) with the Company without the Company’s\nprior written consent, provided, however, that the foregoing provision will not prevent you from (i) employing or engaging any such\nperson who contacts you on his or her own initiative without any direct or indirect solicitation by or encouragement from you or\n(ii) engaging in general solicitations not specifically targeted at such persons or employing or engaging any such person who contacts\nyou in response to such general solicitation or (iii) employing or engaging any such person who no longer works for the Company at the\ntime you first commence employment discussions with such person.\n6. Unless otherwise instructed by the Company or its Representatives or agreed to by the Company in writing (for purposes of clarity,\nincluding electronic mail), all (i) communications regarding any possible Transaction, (ii) requests for additional information,\n(iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures, will be submitted or\ndirected to Matthew M. Bennett, Executive Vice President, General Counsel and Business.\n7. For a period of one year from the date of this Agreement, you and your Representatives, on your or your affiliates’ behalf, shall not,\ndirectly or indirectly, and you shall cause any person or entity controlled by you not to, without the prior written consent of the Board of\nDirectors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any\nsecurities or property of the Company or any of its affiliates (other than property to be transferred in the ordinary course of your and the\nCompany’s businesses), (ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business\ncombination, partnership, joint venture (other than in the ordinary course of your and the Company’s businesses) or other similar\ntransaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any “solicitation” of “proxies” (as such\nterms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with\nrespect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a “group”\n(within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any of its\naffiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or\nencourage any other persons in connection with any of the foregoing. You also agree during such period not to (x) request the Company\n(or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence),\n(y) take any action which would require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, the\nTransaction, or (z) communicate with the Company’s shareholders regarding the subject matter of\n3\nthis Agreement. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained in this paragraph shall prohibit internal\nactions among you and your Representatives. Further notwithstanding the foregoing, the limitations and prohibitions on you set forth in\nthis paragraph shall no longer apply from the earliest of (1) the date the Company enters into an agreement with a third party other than\nyou which provides for an acquisition of, or business combination with, the Company where either the Company would not be the\nsurviving entity as a public company or where such third party (or such third party’s stockholders) would be acquiring at least fifty\npercent or more of the common equity of the Company (or the entity resulting from the transaction) or the assets of the Company, or\n(2) after the date of this Agreement, the date a third party commences or publicly announces its intent to commence a tender offer to\nacquire, or acquires, “beneficial ownership” (as such term is defined under the Exchange Act) of fifty percent or more of the common\nequity of the Company or the Board of Directors of the Company (or any committee thereof) recommends publicly that its stockholders\ntender to a third party proposing to acquire beneficial ownership of fifty percent or more of the common equity of the Company. In\naddition, nothing in this paragraph shall limit your ability to make oral or written proposals to the Board of Directors or Chief Executive\nOfficer of the Company regarding any potential transaction involving you and the Company so long as such proposals do not give rise to\nany reasonable concern that public disclosure of such proposal or proposals is or will be required by applicable law or the NYSE Rules.\n8. Each party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed as to the matters which are\nthe subject of this Agreement, that the United States securities laws prohibit any person who has material, non-public information of an\nissuer concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer (and options,\nwarrants and rights relating thereto) and from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n9. This Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties hereto and their respective Representatives with respect to the matters\naddressed herein to the extent Evaluation Material may be disclosed or made available. Under no circumstances is the Company\nobligated to disclose or make available any information, including any Evaluation Material, which in its sole and absolute discretion it\ndetermines not to disclose. You understand and acknowledge that neither the Company nor any of our Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or any of our Representatives. Neither the Company nor any of our Representatives, nor any of our\nrespective officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability\nto you or any other\n4\nperson (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material except as and to\nthe extent set forth in a definitive agreement, if any, between the Company and you with respect to any Transaction that has been\nexecuted and delivered.\n10. You and the Company agree that unless and until a definitive agreement between the Company and you with respect to any Transaction\nhas been executed and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to\nsuch a Transaction by virtue of (i) this Agreement or (ii) any written or oral expression with respect to such a Transaction by you or the\nCompany or your respective directors, officers, employees, agents, advisors or Representatives.\n11. You agree that the Company has not granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by the Company or any of our Representatives.\n12. If you determine that you do not wish to proceed with the Transaction, you will promptly advise the Company in writing of that decision.\nIn that case, or in the event that, (i) a Transaction is not consummated by you or (ii) at any time the Company requests, you will\npromptly, at your option, (a) deliver to us all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives (such delivery to be certified by\nyou) or (b) destroy all Evaluation Material in your possession or in the possession of any of your Representatives (such destruction to be\ncertified by you).\n13. You and the Company acknowledge that remedies at law may be inadequate to protect the other party against any actual or threatened\nbreach of this letter agreement by you or by your Representatives, on the one hand, and by us or our Representatives, on the other, and,\nwithout prejudice to any other rights and remedies otherwise available, you and we agree to the granting of specific performance and\ninjunctive or other equitable relief in the other party’s favor without proof of actual damages and we each further agree to waive, and to\nuse all reasonable efforts to cause our respective Representatives to waive, any requirement for the securing or posting of any bond in\nconnection with any such remedy.\n14. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the\nState of New York applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You and the\nCompany irrevocably (i) submit to the jurisdiction of any court of the State of New York or the United State District Court for the\nSouthern District of the State of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any\nof the agreements or transactions contemplated hereby (each a “Proceeding”), (ii) agree that all claims in respect of any Proceeding may\nbe heard and determined in any\n5\nsuch court, and (iii) waive, to the fullest extent permitted by law, any immunity a party may have acquired, or hereafter may acquire,\nfrom jurisdiction of any such court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such\ncourt, and waive, to the fullest extent permitted by applicable law, any claim that any such Proceeding is brought in an inconvenient\nforum.\n15. The benefits of this Agreement shall inure to the respective successors and assigns of the parties hereto and their successors and assigns\nand Representatives, and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their\nrespective successors and assigns.\n16. If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n17. This Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and\nmay be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nAgreement.\n18. For the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto. Each such\ncounterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one and\nthe same Agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document\nformat” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document,\nwill have the same effect as physical delivery of the paper document bearing the original signature.\n19. Except as may otherwise be provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or\neffect upon the expiration of a period of two years from the date hereof.\n[SIGNATURE PAGE FOLLOWS]\n6\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter which will constitute our Agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nVIASYS HEALTHCARE INC.\nBy: /s/ RANDY H. THURMAN\nName: Randy H. Thurman\nTitle: Chief Executive Officer\nConfirmed and Agreed to\nas of the date first written above:\nCARDINAL HEALTH, INC.\nBy: /s/ JV WULF\nName: JV Wulf\nTitle: SVP-Corporate Development\n7	EX-99.(E)(4) 4 dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\n».LOGO\nMatthew M. Bennett\nExecutive Vice President,\nGeneral Counsel and Business Development\nApril 19, 2007\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, OH 43017\nAttn: JV Wulf\nRe: Confidentiality Agreement (this “Agreement”)\nLadies and Gentlemen:\nIn connection with your consideration of a possible acquisition (the “Transaction”) of VIASYS Healthcare Inc. (the “Company”), you have\nrequested the right to review certain non-public information regarding the Company. In consideration of, and as a condition to, furnishing you with\nsuch information and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you by us or any of our\naffiliates, directors, officers, employees, advisors, agents, representatives or “controlling persons” (within the meaning of the Securities Exchange\nAct of 1934, as amended (the “1934 Act”)) (such persons for either you or the Company being herein referred to collectively as “Representatives”)\nin connection with your consideration of a Transaction (such information being herein referred to as “Evaluation Material”), the Company hereby\nrequests your agreement as follows:\n1. You and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating and, if applicable, negotiating a\npossible Transaction with the Company involving you or your affiliates (the “Permitted Purpose”) and (ii) will keep the Evaluation\nMaterial strictly confidential and will not (except as requested pursuant to, or required by applicable law, regulation or legal process,\nincluding without limitation the rules and regulations of the New York Stock Exchange (the “NYSE Rules”), and only after compliance\nwith paragraph 3 below), without the Company’s prior written consent, disclose any information in the Evaluation Material, except that\nthe Evaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information for\nthe Permitted Purpose (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature\nof the Evaluation Material and shall be instructed to comply with the terms of this Agreement). You agree to be responsible for any\nbreach of this Agreement by your Representatives.\n2. The term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives in violation of this Agreement) or (ii) was or becomes\navailable to you on a non-confidential basis from a person who, to your knowledge after reasonable inquiry, is not otherwise\nbound by a confidentiality agreement with the Company or its Representatives or otherwise prohibited from transmitting the information\nto you or (iii) was or is developed or discovered by you or your Representatives without reference to the Evaluation Material. Evaluation\nMaterial includes both information previously provided to you and information provided to you in the future. As used in this Agreement,\nthe term “person” shall be broadly interpreted to include, without limitation, any corporation, company, joint venture, partnership or\nindividual.\nIn the event that you receive a request or are required to disclose all or any part of the information contained in the Evaluation Material\npursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar judicial process or pursuant to the NYSE Rules,\nyou agree (to the extent permitted by law and the NYSE Rules) to (i) immediately notify the Company of the existence, terms and\ncircumstances surrounding such a request or requirement, (ii) consult with the Company on the advisability of taking legally available\nsteps (at the Company’s expense with respect to out-of-pocket costs) to resist or narrow such request or requirement, and (iii) if\ndisclosure of such information is required, disclose any such information which you are advised by legal counsel is legally required (or\nrequired under the NYSE Rules) to be disclosed and you will exercise your reasonable best efforts (at the Company’s expense with\nrespect to out-of-pocket costs) to obtain an order or other reliable assurance that confidential treatment will be accorded to such\ninformation.\nUnless otherwise required by law or the NYSE Rules in the opinion of your counsel, neither you nor your Representatives will, without\nthe Company’s prior written consent, disclose to any person either the fact that discussions or negotiations are taking place concerning a\npossible Transaction between the Company and you, or any of the terms, conditions or other facts with respect to any such possible\nTransaction, including, without limitation, the status thereof and the fact that the Evaluation Material has been made available to you.\nThe Company will not, without your prior written consent, disclose to any person (other than its Representatives) the fact that the\nEvaluation Material has been made available to you, that you are considering the Transaction involving the Company, or that discussions\nor negotiations are taking or have taken place with you concerning the Transaction or involving you or any term, condition or other fact\nrelating to the Transaction from which a person could be reasonably expected to identify you.\nUntil the earlier of the consummation by you of a Transaction and 18 months from the date of this Agreement, you agree, and you agree\nto cause your affiliates (used herein with the meaning set forth in Rule 12b-2 of the Securities Exchange Act of 1934 (the “Exchange\nAct”)), not to, directly or indirectly, solicit for purposes of employment, offer to hire, entice away, or offer to enter into any employment,\nconsulting (or similar) contract with any employee of the Company or any of its subsidiaries with whom you have had contact or who\nbecame known\nto you in reasonable detail in connection with the Permitted Purpose, or otherwise solicit, induce or otherwise encourage any such person\nto discontinue, cancel or refrain from entering into any relationship (contractual or otherwise) with the Company without the Company’s\nprior written consent, provided, however, that the foregoing provision will not prevent you from (i) employing or engaging any such\nperson who contacts you on his or her own initiative without any direct or indirect solicitation by or encouragement from you or\n(ii) engaging in general solicitations not specifically targeted at such persons or employing or engaging any such person who contacts\nyou in response to such general solicitation or (iii) employing or engaging any such person who no longer works for the Company at the\ntime you first commence employment discussions with such person.\nUnless otherwise instructed by the Company or its Representatives or agreed to by the Company in writing (for purposes of clarity,\nincluding electronic mail), all (i) communications regarding any possible Transaction, (ii) requests for additional information,\n(iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures, will be submitted or\ndirected to Matthew M. Bennett, Executive Vice President, General Counsel and Business.\nFor a period of one year from the date of this Agreement, you and your Representatives, on your or your affiliates’ behalf, shall not,\ndirectly or indirectly, and you shall cause any person or entity controlled by you not to, without the prior written consent of the Board of\nDirectors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any\nsecurities or property of the Company or any of its affiliates (other than property to be transferred in the ordinary course of your and the\nCompany’s businesses), (ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business\ncombination, partnership, joint venture (other than in the ordinary course of your and the Company’s businesses) or other similar\ntransaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any “solicitation” of “proxies” (as such\nterms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with\nrespect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a “group”\n(within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any of its\naffiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or\nencourage any other persons in connection with any of the foregoing. You also agree during such period not to (x) request the Company\n(or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence),\n(y) take any action which would require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, the\nTransaction, or (z) communicate with the Company’s shareholders regarding the subject matter of\n3\nthis Agreement. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained in this paragraph shall prohibit internal\nactions among you and your Representatives. Further notwithstanding the foregoing, the limitations and prohibitions on you set forth in\nthis paragraph shall no longer apply from the earliest of (1) the date the Company enters into an agreement with a third party other than\nyou which provides for an acquisition of, or business combination with, the Company where either the Company would not be the\nsurviving entity as a public company or where such third party (or such third party’s stockholders) would be acquiring at least fifty\npercent or more of the common equity of the Company (or the entity resulting from the transaction) or the assets of the Company, or\n(2) after the date of this Agreement, the date a third party commences or publicly announces its intent to commence a tender offer to\nacquire, or acquires, “beneficial ownership” (as such term is defined under the Exchange Act) of fifty percent or more of the common\nequity of the Company or the Board of Directors of the Company (or any committee thereof) recommends publicly that its stockholders\ntender to a third party proposing to acquire beneficial ownership of fifty percent or more of the common equity of the Company. In\naddition, nothing in this paragraph shall limit your ability to make oral or written proposals to the Board of Directors or Chief Executive\nOfficer of the Company regarding any potential transaction involving you and the Company so long as such proposals do not give rise to\nany reasonable concern that public disclosure of such proposal or proposals is or will be required by applicable law or the NYSE Rules.\nEach party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed as to the matters which are\nthe subject of this Agreement, that the United States securities laws prohibit any person who has material, non-public information of an\nissuer concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer (and options,\nwarrants and rights relating thereto) and from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\nThis Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties hereto and their respective Representatives with respect to the matters\naddressed herein to the extent Evaluation Material may be disclosed or made available. Under no circumstances is the Company\nobligated to disclose or make available any information, including any Evaluation Material, which in its sole and absolute discretion it\ndetermines not to disclose. You understand and acknowledge that neither the Company nor any of our Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or any of our Representatives. Neither the Company nor any of our Representatives, nor any of our\nrespective officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability\nto you or any other\n10. 11. 12. 13. 14. person (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material except as and to\nthe extent set forth in a definitive agreement, if any, between the Company and you with respect to any Transaction that has been\nexecuted and delivered.\nYou and the Company agree that unless and until a definitive agreement between the Company and you with respect to any Transaction\nhas been executed and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to\nsuch a Transaction by virtue of (i) this Agreement or (ii) any written or oral expression with respect to such a Transaction by you or the\nCompany or your respective directors, officers, employees, agents, advisors or Representatives.\nYou agree that the Company has not granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by the Company or any of our Representatives.\nIf you determine that you do not wish to proceed with the Transaction, you will promptly advise the Company in writing of that decision.\nIn that case, or in the event that, (i) a Transaction is not consummated by you or (ii) at any time the Company requests, you will\npromptly, at your option, (a) deliver to us all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives (such delivery to be certified by\nyou) or (b) destroy all Evaluation Material in your possession or in the possession of any of your Representatives (such destruction to be\ncertified by you).\nYou and the Company acknowledge that remedies at law may be inadequate to protect the other party against any actual or threatened\nbreach of this letter agreement by you or by your Representatives, on the one hand, and by us or our Representatives, on the other, and,\nwithout prejudice to any other rights and remedies otherwise available, you and we agree to the granting of specific performance and\ninjunctive or other equitable relief in the other party’s favor without proof of actual damages and we each further agree to waive, and to\nuse all reasonable efforts to cause our respective Representatives to waive, any requirement for the securing or posting of any bond in\nconnection with any such remedy.\nThe validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the\nState of New York applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You and the\nCompany irrevocably (i) submit to the jurisdiction of any court of the State of New York or the United State District Court for the\nSouthern District of the State of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any\nof the agreements or transactions contemplated hereby (each a “Proceeding™), (ii) agree that all claims in respect of any Proceeding may\nbe heard and determined in any\n15. 16. 17. 18. 19. such court, and (iii) waive, to the fullest extent permitted by law, any immunity a party may have acquired, or hereafter may acquire,\nfrom jurisdiction of any such court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such\ncourt, and waive, to the fullest extent permitted by applicable law, any claim that any such Proceeding is brought in an inconvenient\nforum.\nThe benefits of this Agreement shall inure to the respective successors and assigns of the parties hereto and their successors and assigns\nand Representatives, and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their\nrespective successors and assigns.\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and\nmay be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nAgreement.\nFor the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto. Each such\ncounterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one and\nthe same Agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document\nformat” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document,\nwill have the same effect as physical delivery of the paper document bearing the original signature.\nExcept as may otherwise be provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or\neffect upon the expiration of a period of two years from the date hereof.\n[SIGNATURE PAGE FOLLOWS]\n6\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter which will constitute our Agreement with respect to the subject matter of this letter. Confirmed and Agreed to\nas of the date first written above:\nCARDINAL HEALTH, INC.\nBy: /s/ ]V WULF\nName: JV Wulf\nTitle: SVP-Corporate Development\nVery truly yours,\nVIASYS HEALTHCARE INC.\nBy: /s/ RANDY H. THURMAN\nName: Randy H. Thurman\nTitle: Chief Executive Officer	EX-99.(E)(4) 4 dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nLOGO\nMatthew M. Bennett\nExecutive Vice President,\nGeneral Counsel and Business Development\nApril 19, 2007\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, OH 43017\nAttn: JV Wulf\nRe: Confidentiality Agreement (this "Agreement")\nLadies and Gentlemen:\nIn connection with your consideration of a possible acquisition (the "Transaction") of VIASYS Healthcare Inc. (the "Company"), you have\nrequested the right to review certain non-public information regarding the Company. In consideration of, and as a condition to, furnishing you with\nsuch information and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you by us or any of our\naffiliates, directors, officers, employees, advisors, agents, representatives or "controlling persons" (within the meaning of the Securities Exchange\nAct of 1934, as amended (the "1934 Act")) (such persons for either you or the Company being herein referred to collectively as "Representatives")\nin connection with your consideration of a Transaction (such information being herein referred to as "Evaluation Material"), the Company hereby\nrequests your agreement as follows:\n1.\nYou and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating and, if applicable, negotiating a\npossible Transaction with the Company involving you or your affiliates (the "Permitted Purpose") and (ii) will keep the Evaluation\nMaterial strictly confidential and will not (except as requested pursuant to, or required by applicable law, regulation or legal process,\nincluding without limitation the rules and regulations of the New York Stock Exchange (the "NYSE Rules"), and only after compliance\nwith paragraph 3 below), without the Company's prior written consent, disclose any information in the Evaluation Material, except that\nthe Evaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information for\nthe Permitted Purpose (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature\nof the Evaluation Material and shall be instructed to comply with the terms of this Agreement). You agree to be responsible for any\nbreach of this Agreement by your Representatives.\n2.\nThe term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives in violation of this Agreement) or (ii) was or becomes\navailable to you on a non-confidentia basis from a person who, to your knowledge after reasonable inquiry, is not otherwise\nbound by a confidentiality agreement with the Company or its Representatives or otherwise prohibited from transmitting the information\nto you or (iii) was or is developed or discovered by you or your Representatives without reference to the Evaluation Material. Evaluation\nMaterial includes both information previously provided to you and information provided to you in the future. As used in this Agreement,\nthe term "person" shall be broadly interpreted to include, without limitation, any corporation, company, joint venture, partnership or\nindividual.\n3.\nIn the event that you receive a request or are required to disclose all or any part of the information contained in the Evaluation Material\npursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local\ngovernmenta or regulatory body or pursuant to a civil investigative demand or similar judicial process or pursuant to the NYSE Rules,\nyou agree (to the extent permitted by law and the NYSE Rules) to (i) immediately notify the Company of the existence, terms and\ncircumstances surrounding such a request or requirement, (ii) consult with the Company on the advisability of taking legally available\nsteps (at the Company's expense with respect to out-of-pocket costs) to resist or narrow such request or requirement, and (iii) if\ndisclosure of such information is required, disclose any such information which you are advised by legal counsel is legally required (or\nrequired under the NYSE Rules) to be disclosed and you will exercise your reasonable best efforts (at the Company's expense with\nrespect to out-of-pocket costs) to obtain an order or other reliable assurance that confidential treatment will be accorded to such\ninformation.\n4.\nUnless otherwise required by law or the NYSE Rules in the opinion of your counsel, neither you nor your Representatives will, without\nthe Company's prior written consent, disclose to any person either the fact that discussions or negotiations are taking place concerning\na\npossible Transaction between the Company and you, or any of the terms, conditions or other facts with respect to any such possible\nTransaction, including, without limitation, the status thereof and the fact that the Evaluation Material has been made available to you.\nThe Company will not, without your prior written consent, disclose to any person (other than its Representatives) the fact that the\nEvaluation Material has been made available to you, that you are considering the Transaction involving the Company, or that discussions\nor negotiations are taking or have taken place with you concerning the Transaction or involving you or any term, condition or other fact\nrelating to the Transaction from which a person could be reasonably expected to identify you.\n5.\nUntil the earlier of the consummation by you of a Transaction and 18 months from the date of this Agreement, you agree, and you agree\nto cause your affiliates (used herein with the meaning set forth in Rule 12b-2 of the Securities Exchange Act of 1934 (the "Exchange\nAct")), not to, directly or indirectly, solicit for purposes of employment, offer to hire, entice away, or offer to enter into any employment,\nconsulting (or similar) contract with any employee of the Company or any of its subsidiaries with whom you have had contact or who\nbecame known\n2\nto you in reasonable detail in connection with the Permitted Purpose, or otherwise solicit, induce or otherwise encourage any such person\nto discontinue, cancel or refrain from entering into any relationship (contractual or otherwise) with the Company without the Company's\nprior written consent, provided, however, that the foregoing provision will not prevent you from (i) employing or engaging any such\nperson who contacts you on his or her own initiative without any direct or indirect solicitation by or encouragement from you or\n(ii) engaging in general solicitations not specifically targeted at such persons or employing or engaging any such person who contacts\nyou in response to such general solicitation or (iii) employing or engaging any such person who no longer works for the Company at the\ntime you first commence employment discussions with such person.\n6.\nUnless otherwise instructed by the Company or its Representatives or agreed to by the Company in writing (for purposes of clarity,\nincluding electronic mail), all (i) communications regarding any possible Transaction, (ii) requests for additional information,\n(iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures, will be submitted or\ndirected to Matthew M. Bennett, Executive Vice President, General Counsel and Business.\n7.\nFor a period of one year from the date of this Agreement, you and your Representatives, on your or your affiliates' behalf, shall not,\ndirectly or indirectly, and you shall cause any person or entity controlled by you not to, without the prior written consent of the Board of\nDirectors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any\nsecurities or property of the Company or any of its affiliates (other than property to be transferred in the ordinary course of your and the\nCompany's businesses), (ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business\ncombination, partnership, joint venture (other than in the ordinary course of your and the Company's businesses) or other similar\ntransaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any "solicitation" of "proxies" (as such\nterms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with\nrespect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a "group"\n(within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any of its\naffiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or\nencourage any other persons in connection with any of the foregoing. You also agree during such period not to (x) request the Company\n(or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence),\n(y) take any action which would require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, the\nTransaction, or (z) communicate with the Company's shareholders regarding the subject matter of\n3\nthis Agreement. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained in this paragraph shall prohibit internal\nactions among you and your Representatives. Further notwithstanding the foregoing, the limitations and prohibitions on you set forth in\nthis paragraph shall no longer apply from the earliest of (1) the date the Company enters into an agreement with a third party other than\nyou which provides for an acquisition of, or business combination with, the Company where either the Company would not be the\nsurviving entity as a public company or where such third party (or such third party's stockholders) would be acquiring at least fifty\npercent or more of the common equity of the Company (or the entity resulting from the transaction) or the assets of the Company, or\n(2) after the date of this Agreement, the date a third party commences or publicly announces its intent to commence a tender offer to\nacquire, or acquires, "beneficial ownership" (as such term is defined under the Exchange Act) of fifty percent or more of the common\nequity of the Company or the Board of Directors of the Company (or any committee thereof) recommends publicly that its stockholders\ntender to a third party proposing to acquire beneficial ownership of fifty percent or more of the common equity of the Company. In\naddition, nothing in this paragraph shall limit your ability to make oral or written proposals to the Board of Directors or Chief Executive\nOfficer of the Company regarding any potential transaction involving you and the Company so long as such proposals do not give rise to\nany reasonable concern that public disclosure of such proposal or proposals is or will be required by applicable law or the NYSE Rules.\n8.\nEach party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed as to the matters which are\nthe subject of this Agreement, that the United States securities laws prohibit any person who has material, non-public information of an\nissuer concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer (and options,\nwarrants and rights relating thereto) and from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n9.\nThis Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties hereto and their respective Representatives with respect to the matters\naddressed herein to the extent Evaluation Material may be disclosed or made available. Under no circumstances is the Company\nobligated to disclose or make available any information, including any Evaluation Material, which in its sole and absolute discretion\nit\ndetermines not to disclose. You understand and acknowledge that neither the Company nor any of our Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or any of our Representatives. Neither the Company nor any of our Representatives, nor any of our\nrespective officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability\nto you or any other\n4\nperson (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material except as and to\nthe extent set forth in a definitive agreement, if any, between the Company and you with respect to any Transaction that has been\nexecuted and delivered.\n10.\nYou and the Company agree that unless and until a definitive agreement between the Company and you with respect to any Transaction\nhas been executed and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to\nsuch a Transaction by virtue of (i) this Agreement or (ii) any written or oral expression with respect to such a Transaction by you or the\nCompany or your respective directors, officers, employees, agents, advisors or Representatives\n11.\nYou agree that the Company has not granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by the Company or any of our Representatives.\n12.\nIf you determine that you do not wish to proceed with the Transaction, you will promptly advise the Company in writing of that decision.\nIn\nthat case, or in the event that, (i) a Transaction is not consummated by you or (ii) at any time the Company requests, you will\npromptly, at your option, (a) deliver to us all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives (such delivery to be certified by\nyou) or (b) destroy all Evaluation Material in your possession or in the possession of any of your Representatives (such destruction to be\ncertified by you).\n13.\nYou and the Company acknowledge that remedies at law may be inadequate to protect the other party against any actual or threatened\nbreach of this letter agreement by you or by your Representatives, on the one hand, and by us or our Representatives, on the other, and,\nwithout prejudice to any other rights and remedies otherwise available, you and we agree to the granting of specific performance and\ninjunctive or other equitable relief in the other party's favor without proof of actual damages and we each further agree to waive, and\nto\nuse all reasonable efforts to cause our respective Representatives to waive, any requirement for the securing or posting of any bond in\nconnection with any such remedy.\n14. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the\nState of New York applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You and the\nCompany irrevocably (i) submit to the jurisdiction of any court of the State of New York or the United State District Court for the\nSouthern District of the State of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any\nof the agreements or transactions contemplated hereby (each a "Proceeding"), (ii) agree that all claims in respect of any Proceeding may\nbe heard and determined in any\n5\nsuch court, and (iii) waive, to the fullest extent permitted by law, any immunity a party may have acquired, or hereafter may acquire,\nfrom jurisdiction of any such court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such\ncourt, and waive, to the fullest extent permitted by applicable law, any claim that any such Proceeding is brought in an inconvenient\nforum.\n15.\nThe benefits of this Agreement shall inure to the respective successors and assigns of the parties hereto and their successors and assigns\nand Representatives, and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their\nrespective successors and assigns.\n16.\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n17.\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and\nmay be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nAgreement.\n18. For the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto. Each such\ncounterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one and\nthe same Agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in "portable document\nformat" (".pdf") form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document,\nwill have the same effect as physical delivery of the paper document bearing the original signature.\n19.\nExcept as may otherwise be provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or\neffect upon the expiration of a period of two years from the date hereof.\n[SIGNATURE PAGE FOLLOWS]\n6\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter which will constitute our Agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nVIASYS HEALTHCARE INC.\nBy:\n/s/ RANDY H. THURMAN\nName: Randy H. Thurman\nTitle: Chief Executive Officer\nConfirmed and Agreed to\nas of the date first written above:\nCARDINAL HEALTH, INC.\nBy:\n/s/ JV WULF\nName: JV Wulf\nTitle: SVP-Corporate Development\n7	EX-99.(E)(4) 4 dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nLOGO\nMatthew M. Bennett\nExecutive Vice President,\nGeneral Counsel and Business Development\nApril 19, 2007\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, OH 43017\nAttn: JV Wulf\nRe: Confidentiality Agreement (this “Agreement”)\nLadies and Gentlemen:\nIn connection with your consideration of a possible acquisition (the “Transaction”) of VIASYS Healthcare Inc. (the “Company”), you have\nrequested the right to review certain non-public information regarding the Company. In consideration of, and as a condition to, furnishing you with\nsuch information and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you by us or any of our\naffiliates, directors, officers, employees, advisors, agents, representatives or “controlling persons” (within the meaning of the Securities Exchange\nAct of 1934, as amended (the “1934 Act”)) (such persons for either you or the Company being herein referred to collectively as “Representatives”)\nin connection with your consideration of a Transaction (such information being herein referred to as “Evaluation Material”), the Company hereby\nrequests your agreement as follows:\n1. You and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating and, if applicable, negotiating a\npossible Transaction with the Company involving you or your affiliates (the “Permitted Purpose”) and (ii) will keep the Evaluation\nMaterial strictly confidential and will not (except as requested pursuant to, or required by applicable law, regulation or legal process,\nincluding without limitation the rules and regulations of the New York Stock Exchange (the “NYSE Rules”), and only after compliance\nwith paragraph 3 below), without the Company’s prior written consent, disclose any information in the Evaluation Material, except that\nthe Evaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information for\nthe Permitted Purpose (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature\nof the Evaluation Material and shall be instructed to comply with the terms of this Agreement). You agree to be responsible for any\nbreach of this Agreement by your Representatives.\n2. The term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives in violation of this Agreement) or (ii) was or becomes\navailable to you on a non-confidential basis from a person who, to your knowledge after reasonable inquiry, is not otherwise\nbound by a confidentiality agreement with the Company or its Representatives or otherwise prohibited from transmitting the information\nto you or (iii) was or is developed or discovered by you or your Representatives without reference to the Evaluation Material. Evaluation\nMaterial includes both information previously provided to you and information provided to you in the future. As used in this Agreement,\nthe term “person” shall be broadly interpreted to include, without limitation, any corporation, company, joint venture, partnership or\nindividual.\n3. In the event that you receive a request or are required to disclose all or any part of the information contained in the Evaluation Material\npursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar judicial process or pursuant to the NYSE Rules,\nyou agree (to the extent permitted by law and the NYSE Rules) to (i) immediately notify the Company of the existence, terms and\ncircumstances surrounding such a request or requirement, (ii) consult with the Company on the advisability of taking legally available\nsteps (at the Company’s expense with respect to out-of-pocket costs) to resist or narrow such request or requirement, and (iii) if\ndisclosure of such information is required, disclose any such information which you are advised by legal counsel is legally required (or\nrequired under the NYSE Rules) to be disclosed and you will exercise your reasonable best efforts (at the Company’s expense with\nrespect to out-of-pocket costs) to obtain an order or other reliable assurance that confidential treatment will be accorded to such\ninformation.\n4. Unless otherwise required by law or the NYSE Rules in the opinion of your counsel, neither you nor your Representatives will, without\nthe Company’s prior written consent, disclose to any person either the fact that discussions or negotiations are taking place concerning a\npossible Transaction between the Company and you, or any of the terms, conditions or other facts with respect to any such possible\nTransaction, including, without limitation, the status thereof and the fact that the Evaluation Material has been made available to you.\nThe Company will not, without your prior written consent, disclose to any person (other than its Representatives) the fact that the\nEvaluation Material has been made available to you, that you are considering the Transaction involving the Company, or that discussions\nor negotiations are taking or have taken place with you concerning the Transaction or involving you or any term, condition or other fact\nrelating to the Transaction from which a person could be reasonably expected to identify you.\n5. Until the earlier of the consummation by you of a Transaction and 18 months from the date of this Agreement, you agree, and you agree\nto cause your affiliates (used herein with the meaning set forth in Rule 12b-2 of the Securities Exchange Act of 1934 (the “Exchange\nAct”)), not to, directly or indirectly, solicit for purposes of employment, offer to hire, entice away, or offer to enter into any employment,\nconsulting (or similar) contract with any employee of the Company or any of its subsidiaries with whom you have had contact or who\nbecame known\n2\nto you in reasonable detail in connection with the Permitted Purpose, or otherwise solicit, induce or otherwise encourage any such person\nto discontinue, cancel or refrain from entering into any relationship (contractual or otherwise) with the Company without the Company’s\nprior written consent, provided, however, that the foregoing provision will not prevent you from (i) employing or engaging any such\nperson who contacts you on his or her own initiative without any direct or indirect solicitation by or encouragement from you or\n(ii) engaging in general solicitations not specifically targeted at such persons or employing or engaging any such person who contacts\nyou in response to such general solicitation or (iii) employing or engaging any such person who no longer works for the Company at the\ntime you first commence employment discussions with such person.\n6. Unless otherwise instructed by the Company or its Representatives or agreed to by the Company in writing (for purposes of clarity,\nincluding electronic mail), all (i) communications regarding any possible Transaction, (ii) requests for additional information,\n(iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures, will be submitted or\ndirected to Matthew M. Bennett, Executive Vice President, General Counsel and Business.\n7. For a period of one year from the date of this Agreement, you and your Representatives, on your or your affiliates’ behalf, shall not,\ndirectly or indirectly, and you shall cause any person or entity controlled by you not to, without the prior written consent of the Board of\nDirectors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any\nsecurities or property of the Company or any of its affiliates (other than property to be transferred in the ordinary course of your and the\nCompany’s businesses), (ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business\ncombination, partnership, joint venture (other than in the ordinary course of your and the Company’s businesses) or other similar\ntransaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any “solicitation” of “proxies” (as such\nterms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with\nrespect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a “group”\n(within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any of its\naffiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or\nencourage any other persons in connection with any of the foregoing. You also agree during such period not to (x) request the Company\n(or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence),\n(y) take any action which would require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, the\nTransaction, or (z) communicate with the Company’s shareholders regarding the subject matter of\n3\nthis Agreement. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained in this paragraph shall prohibit internal\nactions among you and your Representatives. Further notwithstanding the foregoing, the limitations and prohibitions on you set forth in\nthis paragraph shall no longer apply from the earliest of (1) the date the Company enters into an agreement with a third party other than\nyou which provides for an acquisition of, or business combination with, the Company where either the Company would not be the\nsurviving entity as a public company or where such third party (or such third party’s stockholders) would be acquiring at least fifty\npercent or more of the common equity of the Company (or the entity resulting from the transaction) or the assets of the Company, or\n(2) after the date of this Agreement, the date a third party commences or publicly announces its intent to commence a tender offer to\nacquire, or acquires, “beneficial ownership” (as such term is defined under the Exchange Act) of fifty percent or more of the common\nequity of the Company or the Board of Directors of the Company (or any committee thereof) recommends publicly that its stockholders\ntender to a third party proposing to acquire beneficial ownership of fifty percent or more of the common equity of the Company. In\naddition, nothing in this paragraph shall limit your ability to make oral or written proposals to the Board of Directors or Chief Executive\nOfficer of the Company regarding any potential transaction involving you and the Company so long as such proposals do not give rise to\nany reasonable concern that public disclosure of such proposal or proposals is or will be required by applicable law or the NYSE Rules.\n8. Each party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed as to the matters which are\nthe subject of this Agreement, that the United States securities laws prohibit any person who has material, non-public information of an\nissuer concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer (and options,\nwarrants and rights relating thereto) and from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n9. This Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties hereto and their respective Representatives with respect to the matters\naddressed herein to the extent Evaluation Material may be disclosed or made available. Under no circumstances is the Company\nobligated to disclose or make available any information, including any Evaluation Material, which in its sole and absolute discretion it\ndetermines not to disclose. You understand and acknowledge that neither the Company nor any of our Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or any of our Representatives. Neither the Company nor any of our Representatives, nor any of our\nrespective officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability\nto you or any other\n4\nperson (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material except as and to\nthe extent set forth in a definitive agreement, if any, between the Company and you with respect to any Transaction that has been\nexecuted and delivered.\n10. You and the Company agree that unless and until a definitive agreement between the Company and you with respect to any Transaction\nhas been executed and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to\nsuch a Transaction by virtue of (i) this Agreement or (ii) any written or oral expression with respect to such a Transaction by you or the\nCompany or your respective directors, officers, employees, agents, advisors or Representatives.\n11. You agree that the Company has not granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by the Company or any of our Representatives.\n12. If you determine that you do not wish to proceed with the Transaction, you will promptly advise the Company in writing of that decision.\nIn that case, or in the event that, (i) a Transaction is not consummated by you or (ii) at any time the Company requests, you will\npromptly, at your option, (a) deliver to us all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives (such delivery to be certified by\nyou) or (b) destroy all Evaluation Material in your possession or in the possession of any of your Representatives (such destruction to be\ncertified by you).\n13. You and the Company acknowledge that remedies at law may be inadequate to protect the other party against any actual or threatened\nbreach of this letter agreement by you or by your Representatives, on the one hand, and by us or our Representatives, on the other, and,\nwithout prejudice to any other rights and remedies otherwise available, you and we agree to the granting of specific performance and\ninjunctive or other equitable relief in the other party’s favor without proof of actual damages and we each further agree to waive, and to\nuse all reasonable efforts to cause our respective Representatives to waive, any requirement for the securing or posting of any bond in\nconnection with any such remedy.\n14. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the\nState of New York applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You and the\nCompany irrevocably (i) submit to the jurisdiction of any court of the State of New York or the United State District Court for the\nSouthern District of the State of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any\nof the agreements or transactions contemplated hereby (each a “Proceeding”), (ii) agree that all claims in respect of any Proceeding may\nbe heard and determined in any\n5\nsuch court, and (iii) waive, to the fullest extent permitted by law, any immunity a party may have acquired, or hereafter may acquire,\nfrom jurisdiction of any such court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such\ncourt, and waive, to the fullest extent permitted by applicable law, any claim that any such Proceeding is brought in an inconvenient\nforum.\n15. The benefits of this Agreement shall inure to the respective successors and assigns of the parties hereto and their successors and assigns\nand Representatives, and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their\nrespective successors and assigns.\n16. If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n17. This Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and\nmay be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nAgreement.\n18. For the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto. Each such\ncounterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one and\nthe same Agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document\nformat” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document,\nwill have the same effect as physical delivery of the paper document bearing the original signature.\n19. Except as may otherwise be provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or\neffect upon the expiration of a period of two years from the date hereof.\n[SIGNATURE PAGE FOLLOWS]\n6\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter which will constitute our Agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nVIASYS HEALTHCARE INC.\nBy: /s/ RANDY H. THURMAN\nName: Randy H. Thurman\nTitle: Chief Executive Officer\nConfirmed and Agreed to\nas of the date first written above:\nCARDINAL HEALTH, INC.\nBy: /s/ JV WULF\nName: JV Wulf\nTitle: SVP-Corporate Development\n7
b3c1b4c6515acb64700d4ad2b43109f0.pdf	effective_date jurisdiction party term	EX-10 .1 2 tisi-06202016xex101.htm EXHIBIT 10.1\nExhibit 10.1\nNON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Non-Disclosure, Non-Competition and Non-Solicitation Agreement (the “Agreement”) is made between Philip J.\nHawk (“Mr. Hawk”) and Team Industrial Services, Inc., Team, Inc., and their affiliated entities (collectively the “Company”),\neffective as of August 8, 2016 (the “Effective Date”) for sufficient consideration as agreed to by the Parties. Mr. Hawk and the\nCompany may be referenced individually as “Party” or collectively as the “Parties.” This Agreement is in conjunction with Mr.\nHawk’s service on Team, Inc.’s Board of Directors (“Board”) and his transition to a non-employee member of the Board.\nSection 1.\nAccelerated Vesting of Restricted Stock Units. The Company will, as soon as administratively feasible\nafter the effective date of this Agreement, accelerate the vesting of certain of Mr. Hawk’s unvested restricted stock units, remove\nMr. Hawk’s continued employment as a condition for vesting under the long-term performance stock units, clarify the termination\ndate for exercising options under the 2007 non-qualified stock option award agreement and deliver the underlying shares as set forth\non Exhibit “A” to this Agreement (the “Accelerated Vesting”). Mr. Hawk acknowledges that this Accelerated Vesting is not due to\nMr. Hawk under any agreement or obligation of the Company and is provided solely in exchange for Mr. Hawk’s promises made in\nthis Agreement.\nSection 2.\nNon-Disclosure of Company’s Confidential Information. In connection with Mr. Hawk’s service on the\nBoard, and in exchange for Mr. Hawk’s promises made in this Agreement, the Company will provide Mr. Hawk with access to its\nConfidential Information and Company Relationships, which Mr. Hawk acknowledges to be valuable and critical to maintaining the\nCompany’s competitive advantage. Mr. Hawk acknowledges that “Confidential Information” includes, all information used by the\nCompany in its business and not known to the public, in spoken, printed, electronic or any other form or medium, relating directly\nor indirectly to: business opportunities and strategies, growth plans, potential mergers and acquisitions, information about third\nparties, training, and any issues or information coming before Board review or discussion, or any information designated or treated\nas confidential during Mr. Hawk’s service on the Board. The Company also shall provide Mr. Hawk with access to, information\nabout, and the unique opportunity to develop business relationships with, the Company’s customers, clients, vendors, business\npartners, potential acquisition targets, consultants, and other persons or entities with whom the Company has developed a business\nrelationship and goodwill (collectively, “Company Relationships”). Mr. Hawk agrees that he will not, during his service on the\nBoard, or at any time thereafter, make any disclosure or use of any Confidential Information, except as may be reasonably necessary\nin performing his duties for the benefit of the Company or as part of a good faith report or related disclosures to any governmental\nagency or entity regarding potential violations of applicable federal, state or local law or to take other actions protected as\nwhistleblower activity under applicable law. Mr. Hawk shall return or destroy (and provide written confirmation of the date and\ncontent and manner of the information destroyed), all Confidential Information to the Company upon request or upon the\ntermination of his Board service. The term “Confidential Information” does not include any information that (a) is or becomes,\navailable to Mr. Hawk on a non-confidential basis from a source other than the Company or its advisors or employees or others with\nan obligation to keep it confidential, or (b) is developed or derived by Mr. Hawk without the aid, application or use of such\nConfidential Information, including, without limitation, general perspectives on industry practices and business management that\nwere developed, in part, during Mr. Hawk’s tenure with the Company.\nSection 3.\nNon-Competition. Because of the Company’s legitimate business interest in protecting its Confidential\nInformation and Company Relationships, in exchange for the Company’s promises made in this Agreement and as a material\nincentive for the Company to enter into this Agreement, Mr. Hawk agrees that he will not, at any time during his service on the\nBoard, and for the later of (1) three years from the effective date of this Agreement or (2) the period commencing on the date of\ntermination of Mr. Hawk’s service on the Board and continuing for twelve (12) months thereafter (collectively referred to as the\n1\n“Restricted Period”), directly or indirectly, for himself or for others, in any state of the United States or in any business location\nworldwide where the Company is conducting or actively planning to conduct business as of the date Mr. Hawk’s Board service ends\nor in the previous twenty-four (24) months (the “Restricted Territory”), engage in any Prohibited Activity. “Prohibited Activity" is\nany activity involved with or supporting the same or similar business as the Company, or any activity which in any other way\nprovides the same or similar services as the Company provided during Mr. Hawk’s Board service up to the effective date of this\nAgreement, whether such actions are taken on behalf of Mr. Hawk or for others as set forth on Exhibit “B” to this Agreement;\nprovided, that, for the avoidance of doubt, the Parties acknowledge and agree that the Company, as of the effective date of this\nAgreement, does not provide industrial cleaning services in North America. Mr. Hawk expressly acknowledges and agrees that, due\nto the nature of his service with the Company, any activities falling within the definition of Prohibited Activity would necessarily\nand inevitably involve the use and/or disclosure by Mr. Hawk of the Company’s trade secrets and Confidential Information or\nCompany Relationships.\nSection 4.\nNon-Solicitation of Company Employees. Because of the Company’s legitimate business interest in\nprotecting its Confidential Information and Company Relationships, in exchange for the Company’s promises made in this\nAgreement and as a material incentive for the Company to enter into this Agreement, Mr. Hawk hereby agrees that he will not, at\nany time during the Restricted Period, for himself or for any other person or entity, solicit, hire or seek to hire any current or former\n(within the prior six months) employees of the Company, or in any other manner attempt, directly or indirectly, to influence, induce,\nor encourage any such current or former employees of the Company to leave his or her employment or work with the Company\n(“Prohibited Solicitation”). Mr. Hawk further agrees not to use or disclose to any person or entity any information concerning the\nnames, addresses, work or personal telephone numbers of any such current or former employees of the Company in association with\nany Prohibited Solicitation. Notwithstanding the foregoing, Mr. Hawk will not be deemed to have engaged in a Prohibited\nSolicitation about which he had no knowledge or participation. However, providing an introduction to or information about a person\nto be solicited or recruited will be considered participation in such solicitation.\nSection 5.\nInjunctive, Equitable and Legal Relief. Mr. Hawk acknowledges that he has or will receive sufficient\nmonetary and other consideration from the Company to justify the restrictions in this Agreement. In the event of (a) a breach, as\nfinally determined by a court of competent jurisdiction in a non-appealable decision, or (b) any challenge to or finding of\nenforceability of any term of this Agreement, Mr. Hawk shall immediately forfeit all rights to any long-term performance stock\nunits and restricted stock units and shall return to the Company all rights to and any value received from the restricted stock units\nsubject to the Accelerated Vesting under this Agreement scheduled and delivered to him after calendar year 2016. For any restricted\nstock units scheduled to be delivered after calendar year 2016, but not yet delivered at the time of an enforceability challenge or\nfinding of breach, Mr. Hawk shall immediately forfeit all rights to such restricted stock units and the Company shall be relieved of\nany obligation of delivery. Such return or forfeiture of delivery is not considered liquidated damages and is in addition to the\nCompany’s right to seek any and all remedies available at law or in equity, including, the recovery of damages from Mr. Hawk, as\nwell as attorneys’ fees or costs involved in litigating this Agreement, and specific performance and injunctive relief as monetary\ndamages will not be sufficient to remedy such breach or challenge to the terms of this Agreement. The Parties agree that only in the\nevent of litigation of any alleged breach of the terms of this Agreement, and not in the case of a challenge to the enforceability, that\nthe prevailing party, as finally determined by the applicable court, shall be entitled to his or its reasonable attorney fees and costs\nincurred in litigating the terms of this Agreement.\nSection 6.\nNo Use of Other Parties’ Confidential Information or Conflicting Obligations of Mr. Hawk. Mr. Hawk\npromises that he will not use, disclose to the Company, bring on Company premises, or induce the Company or any of its directors,\nagents or employees to intentionally or unintentionally use or disclose,\n2\nany confidential or proprietary information or material belonging to any other person or entity and for which the Company is not an\nauthorized user. Mr. Hawk will not enter into any agreement or undertake any other duty, whether written or oral, in conflict with\nthe provisions of this Agreement. Mr. Hawk represents that his service on the Board will not breach any agreement or other duty\nMr. Hawk has to keep in confidence proprietary information, knowledge or data belonging to other persons or entities.\nSection 7.\nCertain Acknowledgements. It is acknowledged and agreed that Mr. Hawk is involved in a variety of\nbusinesses and may have acquired (or invested in), or may acquire (or invest in), directly or indirectly, other businesses. For\navoidance of doubt, nothing in this Agreement is intended to limit Mr. Hawk’s ability to acquire, invest in, advise, manage or\noperate such other businesses, as long as, in doing so, Mr. Hawk does not violate any provision of this Agreement, or any other\nobligations Mr. Hawk has towards the Company, including duties under any applicable law or agreement such as fiduciary and\nloyalty and confidentiality duties as a Team director, and all policies and procedures applicable to Team directors such as the Code\nof Conduct, governance principles, and all of the Company’s board policies and procedures.\nSection 8.\nChoice of Law and Mandatory Forum; Waiver of Jury Trial. This Agreement is entered into under, and\nshall be governed for all purposes by, the laws of the State of Texas. Unless any injunctive or equitable relief sought requires filing\nelsewhere, the Parties agree to submit all disputes arising out of or relating to this Agreement to the exclusive jurisdiction of the\nstate and federal courts, as appropriate, in Harris County, Texas. Mr. Hawk hereby expressly consents to the jurisdiction of the\nforegoing courts for such purposes and waives any challenges to the jurisdiction of the foregoing courts. The Parties waive all rights\nto a jury trial for any claims between them under this Agreement or otherwise. The Parties consent to trial by the judge.\nSection 9.\nSuccessors/Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and\ntheir respective heirs, legal representatives, successors, beneficiaries, and permitted assigns. The Company shall be permitted to\nassign or otherwise transfer this Agreement to any person, association, or entity which may hereafter acquire or succeed to all or\nsubstantially all of the business or assets of the Company by any means whether direct or indirect, by purchase, merger,\nconsolidation, or otherwise without Mr. Hawk’s consent. This Agreement is personal to Mr. Hawk and not assignable by him.\nSection 10.\nNotices. Any notices under this Agreement shall be addressed as follows and delivered by any means\nwhich provides a receipt upon delivery. Notices to the Company shall be sent to the attention of Chief Executive Officer and\nExecutive Vice-President and Chief Legal Officer, 13131 Dairy Ashford, Suite 600, Sugar Land, TX 77478 or\nted.owen@teaminc.com and butch.bouchard@teaminc.com. Notices to Mr. Hawk shall be sent to: 4 Bradfield Court, Houston, TX\n77024 or phil.hawk@teaminc.com and Philip.j.hawk@gmail.com .\nSection 11.\nReasonableness of the Restrictions, Severability. The Parties agree that the restrictions in this Agreement\nare reasonable and necessary to protect the Company’s Confidential Information and Company Relationships. Nevertheless, if any\ncourt having jurisdiction finds any terms to be unenforceable for any reason, the court shall modify them to be enforceable. If such\ncourt finds any term of this Agreement to be unenforceable, it shall be severed and such finding shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in full force and effect.\nSection 12.\nEntire Agreement, Existing Duties, Modification of Agreement, No Waiver. The Parties have not relied\nupon any representations or statements, written or oral, not set forth in this Agreement. This Agreement represents the entire\nunderstanding between the Parties on the matters addressed, except that it supplements and does not replace any other agreement or\nobligation under any law between the Parties regarding fiduciary duties, duties of loyalty, conflict of interest, code of ethical\nconduct, confidentiality, non-\n3\ndisclosure, non-competition, and/or non-solicitation obligations. This Agreement may not be modified, changed or altered by any\npromise or statement by the Company other than in writing signed by Mr. Hawk and an authorized representative of Company. This\nAgreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together\nwill constitute one and the same Agreement. No failure by either Party hereto at any time to give notice of any breach by the other\nParty of, or to require compliance with, any condition or provision of this Agreement shall (i) be deemed a waiver of similar or\ndissimilar provisions or conditions at the same or at any prior or subsequent time, or (ii) preclude insistence upon strict compliance\nin the future.\nAgreed to and Executed By:\nTEAM, INC.\nBy:\n/s/ Ted W. Owen\nPrinted Name:\nTed W. Owen\nTitle: Chief Executive Officer\nDate Signed:\nAugust 8, 2016\n/s/ Philip J. Hawk\nPHILIP J. HAWK\nDate Signed:\nAugust 8, 2016\n4	EX-10.1 2 tisi-06202016xex101.htm EXHIBIT 10.1\nExhibit 10.1\nNON-DISCL.OSURE, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Non-Disclosure, Non-Competition and Non-Solicitation Agreement (the “Agreement”) is made between Philip J.\nHawk (“Mr. Hawk”) and Team Industrial Services, Inc., Team, Inc., and their affiliated entities (collectively the “Company”),\neffective as of August 8, 2016 (the “Effective Date”) for sufficient consideration as agreed to by the Parties. Mr. Hawk and the\nCompany may be referenced individually as “Party” or collectively as the “Parties.” This Agreement is in conjunction with Mr.\nHawk’s service on Team, Inc.’s Board of Directors (“Board”) and his transition to a non-employee member of the Board.\nSection 1. Accelerated Vesting of Restricted Stock Units. The Company will, as soon as administratively feasible\nafter the effective date of this Agreement, accelerate the vesting of certain of Mr. Hawk’s unvested restricted stock units, remove\nMr. Hawk’s continued employment as a condition for vesting under the long-term performance stock units, clarify the termination\ndate for exercising options under the 2007 non-qualified stock option award agreement and deliver the underlying shares as set forth\non Exhibit “A” to this Agreement (the “Accelerated Vesting”). Mr. Hawk acknowledges that this Accelerated Vesting is not due to\nMr. Hawk under any agreement or obligation of the Company and is provided solely in exchange for Mr. Hawk’s promises made in\nthis Agreement.\nSection 2. Non-Disclosure of Company’s Confidential Information. In connection with Mr. Hawk’s service on the\nBoard, and in exchange for Mr. Hawk’s promises made in this Agreement, the Company will provide Mr. Hawk with access to its\nConfidential Information and Company Relationships, which Mr. Hawk acknowledges to be valuable and critical to maintaining the\nCompany’s competitive advantage. Mr. Hawk acknowledges that “Confidential Information” includes, all information used by the\nCompany in its business and not known to the public, in spoken, printed, electronic or any other form or medium, relating directly\nor indirectly to: business opportunities and strategies, growth plans, potential mergers and acquisitions, information about third\nparties, training, and any issues or information coming before Board review or discussion, or any information designated or treated\nas confidential during Mr. Hawk’s service on the Board. The Company also shall provide Mr. Hawk with access to, information\nabout, and the unique opportunity to develop business relationships with, the Company’s customers, clients, vendors, business\npartners, potential acquisition targets, consultants, and other persons or entities with whom the Company has developed a business\nrelationship and goodwill (collectively, “Company_Relationships”). Mr. Hawk agrees that he will not, during his service on the\nBoard, or at any time thereafter, make any disclosure or use of any Confidential Information, except as may be reasonably necessary\nin performing his duties for the benefit of the Company or as part of a good faith report or related disclosures to any governmental\nagency or entity regarding potential violations of applicable federal, state or local law or to take other actions protected as\nwhistleblower activity under applicable law. Mr. Hawk shall return or destroy (and provide written confirmation of the date and\ncontent and manner of the information destroyed), all Confidential Information to the Company upon request or upon the\ntermination of his Board service. The term “Confidential Information” does not include any information that (a) is or becomes,\navailable to Mr. Hawk on a non-confidential basis from a source other than the Company or its advisors or employees or others with\nan obligation to keep it confidential, or (b) is developed or derived by Mr. Hawk without the aid, application or use of such\nConfidential Information, including, without limitation, general perspectives on industry practices and business management that\nwere developed, in part, during Mr. Hawk’s tenure with the Company.\nSection 3. Non-Competition. Because of the Company’s legitimate business interest in protecting its Confidential\nInformation and Company Relationships, in exchange for the Company’s promises made in this Agreement and as a material\nincentive for the Company to enter into this Agreement, Mr. Hawk agrees that he will not, at any time during his service on the\nBoard, and for the later of (1) three years from the effective date of this Agreement or (2) the period commencing on the date of\ntermination of Mr. Hawk’s service on the Board and continuing for twelve (12) months thereafter (collectively referred to as the\n1\n“Restricted Period”), directly or indirectly, for himself or for others, in any state of the United States or in any business location\nworldwide where the Company is conducting or actively planning to conduct business as of the date Mr. Hawk’s Board service ends\nor in the previous twenty-four (24) months (the “Restricted Territory”), engage in any Prohibited Activity. “Prohibited Activity" is\nany activity involved with or supporting the same or similar business as the Company, or any activity which in any other way\nprovides the same or similar services as the Company provided during Mr. Hawk’s Board service up to the effective date of this\nAgreement, whether such actions are taken on behalf of Mr. Hawk or for others as set forth on Exhibit “B” to this Agreement;\nprovided, that, for the avoidance of doubt, the Parties acknowledge and agree that the Company, as of the effective date of this\nAgreement, does not provide industrial cleaning services in North America. Mr. Hawk expressly acknowledges and agrees that, due\nto the nature of his service with the Company, any activities falling within the definition of Prohibited Activity would necessarily\nand inevitably involve the use and/or disclosure by Mr. Hawk of the Company’s trade secrets and Confidential Information or\nCompany Relationships.\nSection 4. Non-Solicitation of Company Employees. Because of the Company’s legitimate business interest in\nprotecting its Confidential Information and Company Relationships, in exchange for the Company’s promises made in this\nAgreement and as a material incentive for the Company to enter into this Agreement, Mr. Hawk hereby agrees that he will not, at\nany time during the Restricted Period, for himself or for any other person or entity, solicit, hire or seek to hire any current or former\n(within the prior six months) employees of the Company, or in any other manner attempt, directly or indirectly, to influence, induce,\nor encourage any such current or former employees of the Company to leave his or her employment or work with the Company\n(“Prohibited Solicitation”). Mr. Hawk further agrees not to use or disclose to any person or entity any information concerning the\nnames, addresses, work or personal telephone numbers of any such current or former employees of the Company in association with\nany Prohibited Solicitation. Notwithstanding the foregoing, Mr. Hawk will not be deemed to have engaged in a Prohibited\nSolicitation about which he had no knowledge or participation. However, providing an introduction to or information about a person\nto be solicited or recruited will be considered participation in such solicitation.\nSection 5. Injunctive, Equitable and Legal Relief. Mr. Hawk acknowledges that he has or will receive sufficient\nmonetary and other consideration from the Company to justify the restrictions in this Agreement. In the event of (a) a breach, as\nfinally determined by a court of competent jurisdiction in a non-appealable decision, or (b) any challenge to or finding of\nenforceability of any term of this Agreement, Mr. Hawk shall immediately forfeit all rights to any long-term performance stock\nunits and restricted stock units and shall return to the Company all rights to and any value received from the restricted stock units\nsubject to the Accelerated Vesting under this Agreement scheduled and delivered to him after calendar year 2016. For any restricted\nstock units scheduled to be delivered after calendar year 2016, but not yet delivered at the time of an enforceability challenge or\nfinding of breach, Mr. Hawk shall immediately forfeit all rights to such restricted stock units and the Company shall be relieved of\nany obligation of delivery. Such return or forfeiture of delivery is not considered liquidated damages and is in addition to the\nCompany’s right to seek any and all remedies available at law or in equity, including, the recovery of damages from Mr. Hawk, as\nwell as attorneys’ fees or costs involved in litigating this Agreement, and specific performance and injunctive relief as monetary\ndamages will not be sufficient to remedy such breach or challenge to the terms of this Agreement. The Parties agree that only in the\nevent of litigation of any alleged breach of the terms of this Agreement, and not in the case of a challenge to the enforceability, that\nthe prevailing party, as finally determined by the applicable court, shall be entitled to his or its reasonable attorney fees and costs\nincurred in litigating the terms of this Agreement.\nSection 6. No Use of Other Parties’ Confidential Information or Conflicting Obligations of Mr. Hawk. Mr. Hawk\npromises that he will not use, disclose to the Company, bring on Company premises, or induce the Company or any of its directors,\nagents or employees to intentionally or unintentionally use or disclose,\n2\nany confidential or proprietary information or material belonging to any other person or entity and for which the Company is not an\nauthorized user. Mr. Hawk will not enter into any agreement or undertake any other duty, whether written or oral, in conflict with\nthe provisions of this Agreement. Mr. Hawk represents that his service on the Board will not breach any agreement or other duty\nMr. Hawk has to keep in confidence proprietary information, knowledge or data belonging to other persons or entities.\nSection 7. Certain Acknowledgements. It is acknowledged and agreed that Mr. Hawk is involved in a variety of\nbusinesses and may have acquired (or invested in), or may acquire (or invest in), directly or indirectly, other businesses. For\navoidance of doubt, nothing in this Agreement is intended to limit Mr. Hawk’s ability to acquire, invest in, advise, manage or\noperate such other businesses, as long as, in doing so, Mr. Hawk does not violate any provision of this Agreement, or any other\nobligations Mr. Hawk has towards the Company, including duties under any applicable law or agreement such as fiduciary and\nloyalty and confidentiality duties as a Team director, and all policies and procedures applicable to Team directors such as the Code\nof Conduct, governance principles, and all of the Company’s board policies and procedures.\n \nSection 8. Choice of L.aw and Mandatory Forum; Waiver of Jury Trial. This Agreement is entered into under, and\nshall be governed for all purposes by, the laws of the State of Texas. Unless any injunctive or equitable relief sought requires filing\nelsewhere, the Parties agree to submit all disputes arising out of or relating to this Agreement to the exclusive jurisdiction of the\nstate and federal courts, as appropriate, in Harris County, Texas. Mr. Hawk hereby expressly consents to the jurisdiction of the\nforegoing courts for such purposes and waives any challenges to the jurisdiction of the foregoing courts. The Parties waive all rights\nto a jury trial for any claims between them under this Agreement or otherwise. The Parties consent to trial by the judge.\nSection 9. Successors/Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and\ntheir respective heirs, legal representatives, successors, beneficiaries, and permitted assigns. The Company shall be permitted to\nassign or otherwise transfer this Agreement to any person, association, or entity which may hereafter acquire or succeed to all or\nsubstantially all of the business or assets of the Company by any means whether direct or indirect, by purchase, merger,\nconsolidation, or otherwise without Mr. Hawk’s consent. This Agreement is personal to Mr. Hawk and not assignable by him.\n \nSection 10. Notices. Any notices under this Agreement shall be addressed as follows and delivered by any means\nwhich provides a receipt upon delivery. Notices to the Company shall be sent to the attention of Chief Executive Officer and\nExecutive Vice-President and Chief Legal Officer, 13131 Dairy Ashford, Suite 600, Sugar Land, TX 77478 or\nted.owen@teaminc.com and butch.bouchard@teaminc.com. Notices to Mr. Hawk shall be sent to: 4 Bradfield Court, Houston, TX\n77024 or phil.hawk@teaminc.com and Philip.j.hawk@gmail.com.\nSection 11. Reasonableness of the Restrictions, Severability. The Parties agree that the restrictions in this Agreement\nare reasonable and necessary to protect the Company’s Confidential Information and Company Relationships. Nevertheless, if any\ncourt having jurisdiction finds any terms to be unenforceable for any reason, the court shall modify them to be enforceable. If such\ncourt finds any term of this Agreement to be unenforceable, it shall be severed and such finding shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in full force and effect.\nSection 12. Entire Agreement, Existing Duties, Modification of Agreement, No Waiver. The Parties have not relied\nupon any representations or statements, written or oral, not set forth in this Agreement. This Agreement represents the entire\nunderstanding between the Parties on the matters addressed, except that it supplements and does not replace any other agreement or\nobligation under any law between the Parties regarding fiduciary duties, duties of loyalty, conflict of interest, code of ethical\nconduct, confidentiality, non-\n \ndisclosure, non-competition, and/or non-solicitation obligations. This Agreement may not be modified, changed or altered by any\npromise or statement by the Company other than in writing signed by Mr. Hawk and an authorized representative of Company. This\nAgreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together\nwill constitute one and the same Agreement. No failure by either Party hereto at any time to give notice of any breach by the other\nParty of, or to require compliance with, any condition or provision of this Agreement shall (i) be deemed a waiver of similar or\ndissimilar provisions or conditions at the same or at any prior or subsequent time, or (ii) preclude insistence upon strict compliance\nin the future.\nAgreed to and Executed By:\nTEAM, INC.\nBy: /s/ Ted W. Owen\nPrinted Name: Ted W. Owen\nTitle: Chief Executive Officer\nDate Signed: August 8, 2016\n/s/ Philip J. Hawk\nPHILIP J. HAWK\nDate Signed: August 8, 2016	EX-10.1 tisi-06202016xex101.htr EXHIBIT 10.1\nExhibit 10.1\nNON-DISCLOSURE, ,NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Non-Disclosure, Non-Competition and Non-Solicitation Agreement (the "Agreement") is made between Philip J.\nHawk ("Mr. Hawk") and Team Industria Services, Inc., Team, Inc., and their affiliated entities (collectively the "Company."),\neffective as of August 8, 2016 (the "Effective Date") for sufficient consideration as agreed to by the Parties. Mr. Hawk and the\nCompany may be referenced individually as "Party." or collectively as the "Parties." This Agreement is in conjunction with Mr.\nHawk's service on Team, Inc.'s Board of Directors ("Board") and his transition to a non-employee member of the Board.\nSection 1.\nAccelerated Vesting of Restricted Stock Units. The Company will, as soon as administratively feasible\nafter the effective date of this Agreement, accelerate the vesting of certain of Mr. Hawk's unvested restricted stock units, remove\nMr.\nHawk's continued employment as a condition for vesting under the long-term performance stock units, clarify the termination\ndate for exercising options under the 2007 non-qualified stock option award agreement and deliver the underlying shares as set forth\non Exhibit "A" to this Agreement (the "Accelerated Vesting"). Mr. Hawk acknowledges that this Accelerated Vesting is not due to\nMr. Hawk under any agreement or obligation of the Company and is provided solely in exchange for Mr. Hawk's promises made in\nthis Agreement.\nSection 2.\nNon-Disclosure of Company's Confidential Information. In connection with Mr. Hawk's service on the\nBoard, and in exchange for Mr. Hawk's promises made in this Agreement, the Company will provide Mr. Hawk with access to its\nConfidential Information and Company Relationships, which Mr. Hawk acknowledges to be valuable and critical to maintaining the\nCompany's competitive advantage. Mr. Hawk acknowledges that "Confidential Information" includes, all information used by the\nCompany in its business and not known to the public, in spoken, printed, electronic or any other form or medium, relating directly\nor indirectly to: business opportunities and strategies, growth plans, potential mergers and acquisitions, information about third\nparties, training, and any issues or information coming before Board review or discussion, or any information designated or treated\nas\nconfidential during Mr. Hawk's service on the Board. The Company also shall provide Mr. Hawk with access to, information\nabout, and the unique opportunity to develop business relationships with, the Company's customers, clients, vendors, business\npartners, potential acquisition targets, consultants, and other persons or entities with whom the Company has developed a business\nrelationship and goodwill (collectively, 'Company Relationships"). Mr. Hawk agrees that he will not, during his service on the\nBoard, or at any time thereafter, make any disclosure or use of any Confidential Information, except as may be reasonably necessary\nin performing his duties for the benefit of the Company or as part of a good faith report or related disclosures to any governmental\nagency or entity regarding potential violations of applicable federal, state or local law or to take other actions protected as\nwhistleblower activity under applicable law. Mr. Hawk shall return or destroy (and provide written confirmation of the date and\ncontent and manner of the information destroyed), all Confidential Information to the Company upon request or upon the\ntermination of his Board service. The term "Confidential Information" does not include any information that (a) is or becomes,\navailable\nto\nMr.\nHawk\non\na\nnon-confidential\nbasis\nfrom\na\nsource\nother\nthan\nthe\nCompany\nor\nits\nadvisors\nor\nemployees\nor\nothers\nwith\nan obligation to keep it confidential, or (b) is developed or derived by Mr. Hawk without the aid, application or use of such\nConfidential Information, including, without limitation, general perspectives on industry practices and business management that\nwere developed, in part, during Mr. Hawk's tenure with the Company.\nSection 3.\nNon-Competition. Because of the Company's legitimate business interest in protecting its Confidential\nInformation and Company Relationships, in exchange for the Company's promises made in this Agreement and as a material\nincentive for the Company to enter into this Agreement, Mr. Hawk agrees that he will not, at any time during his service on the\nBoard, and for the later of (1) three years from the effective date of this Agreement or (2) the period commencing on the date of\ntermination of Mr. Hawk's service on the Board and continuing for twelve (12) months thereafter (collectively referred to as the\n1\n"Restricted Period"), directly or indirectly, for himself or for others, in any state of the United States or in any business location\nworldwide where the Company is conducting or actively planning to conduct business as of the date Mr. Hawk's Board service ends\nor in the previous twenty-four (24) months (the "Restricted Territory."), engage in any Prohibited Activity. "Prohibited Activity." is\nany activity involved with or supporting the same or similar business as the Company, or any activity which in any other way\nprovides the same or similar services as the Company provided during Mr. Hawk's Board service up to the effective date of this\nAgreement, whether such actions are taken on behalf of Mr. Hawk or for others as set forth on Exhibit "B" to this Agreement;\nprovided, that, for the avoidance of doubt, the Parties acknowledge and agree that the Company, as of the effective date of this\nAgreement,\ndoes\nnot\nprovide\nindustrial\ncleaning\nservices\nin\nNorth\nAmerica.\nMr.\nHawk\nexpressly\nacknowledges\nand\nagrees\nthat,\ndue\nto the nature of his service with the Company, any activities falling within the definition of Prohibited Activity would necessarily\nand inevitably involve the use and/or disclosure by Mr. Hawk of the Company's trade secrets and Confidential Information or\nCompany Relationships.\nSection 4.\nNon-Solicitation of ompany Employees, Because of the Company's legitimate business interest in\nprotecting\nits\nConfidential\nInformation\nand\nCompany\nRelationships,\nin\nexchange\nfor\nthe\nCompany's\npromises\nmade\nin\nthis\nAgreement and as a material incentive for the Company to enter into this Agreement, Mr. Hawk hereby agrees that he will not, at\nany time during the Restricted Period, for himself or for any other person or entity, solicit, hire or seek to hire any current or former\n(within the prior six months) employees of the Company, or in any other manner attempt, directly or indirectly, to influence, induce,\nor encourage any such current or former employees of the Company to leave his or her employment or work with the Company\n("Prohibited Solicitation"). Mr. Hawk further agrees not to use or disclose to any person or entity any information concerning the\nnames, addresses, work or persona telephone numbers of any such current or former employees of the Company in association with\nany Prohibited Solicitation. Notwithstanding the foregoing, Mr. Hawk will not be deemed to have engaged in a Prohibited\nSolicitation about which he had no knowledge or participation. However, providing an introduction to or information about a person\nto be solicited or recruited will be considered participation in such solicitation.\nSection 5.\nInjunctive, Equitable and Legal Relief. Mr. Hawk acknowledges that he has or will receive sufficient\nmonetary and other consideration from the Company to justify the restrictions in this Agreement. In the event of (a) a breach, as\nfinally determined by a court of competent jurisdiction in a non-appealable decision, or (b) any challenge to or finding of\nenforceability of any term of this Agreement, Mr. Hawk shall immediately forfeit all rights to any long-term performance stock\nunits and restricted stock units and shall return to the Company all rights to and any value received from the restricted stock units\nsubject to the Accelerated Vesting under this Agreement scheduled and delivered to him after calendar year 2016. For any restricted\nstock\nunits\nscheduled\nto\nbe\ndelivered\nafter\ncalendar\nyear\n2016,\nbut\nnot\nyet\ndelivered\nat\nthe\ntime\nof\nan\nenforceability\nchallenge\nor\nfinding of breach, Mr Hawk shall immediately forfeit all rights to such restricted stock units and the Company shall be relieved of\nany obligation of delivery. Such return or forfeiture of delivery is not considered liquidated damages and is in addition to the\nCompany's right to seek any and all remedies available at law or in equity, including, the recovery of damages from Mr.\nHawk,\nas\nwell as attorneys' fees or costs involved in litigating this Agreement, and specific performance and injunctive relief as monetary\ndamages will not be sufficient to remedy such breach or challenge to the terms of this Agreement. The Parties agree that only in the\nevent\nof\nlitigation\nof\nany\nalleged\nbreach\nof\nthe\nterms\nof\nthis\nAgreement,\nand\nnot\nin\nthe\ncase\nof\na\nchallenge\nto\nthe\nenforceability,\nthat\nthe prevailing party, as finally determined by the applicable court, shall be entitled to his or its reasonable attorney fees and costs\nincurred in litigating the terms of this Agreement.\nSection 6.\nNo Use of Other Parties' Confidential Information or Conflicting Obligations of Mr. Hawk. Mr. Hawk\npromises that he will not use, disclose to the Company, bring on Company premises, or induce the Company or any of its directors,\nagents or employees to intentionally or unintentionally use or disclose,\n2\nany confidential or proprietary information or material belonging to any other person or entity and for which the Company is not\nan\nauthorized user. Mr. Hawk will not enter into any agreement or undertake any other duty, whether written or oral, in conflict with\nthe provisions of this Agreement. Mr. Hawk represents that his service on the Board will not breach any agreement or other duty\nMr. Hawk has to keep in confidence proprietary information, knowledge or data belonging to other persons or entities.\nSection 7.\nCertain Acknowledgements. It is acknowledged and agreed that Mr. Hawk is involved in a variety of\nbusinesses and may have acquired (or invested in), or may acquire (or invest in), directly or indirectly, other businesses. For\navoidance of doubt, nothing in this Agreement is intended to limit Mr. Hawk's ability to acquire, invest in, advise, manage or\noperate such other businesses, as long as, in doing so, Mr. Hawk does not violate any provision of this Agreement, or any other\nobligations Mr. Hawk has towards the Company, including duties under any applicable law or agreement such as fiduciary and\nloyalty and confidentiality duties as a Team director, and all policies and procedures applicable to Team directors such as the Code\nof Conduct, governance principles, and all of the Company's board policies and procedures.\nSection 8.\nChoice\nof\nLaw\nand\nMandatory For\nWaiver\nof\nJury\nTrial.\nThis\nAgreement\nis\nentered\ninto\nunder,\nand\nshall be governed for all purposes by, the laws of the State of Texas. Unless any injunctive or equitable relief sought requires filing\nelsewhere, the Parties agree to submit all disputes arising out of or relating to this Agreement to the exclusive jurisdiction of the\nstate and federal courts, as appropriate, in Harris County, Texas. Mr. Hawk hereby expressly consents to the jurisdiction of the\nforegoing courts for such purposes and waives any challenges to the jurisdiction of the foregoing courts. The Parties waive\nto a jury trial for any claims between them under this Agreement or otherwise. The Parties consent to trial by the judge. all rights\nSection 9.\nSuccessors/Assignment This Agreement shall be binding upon and inure to the benefit of the Parties and\ntheir respective heirs, legal representatives, successors, beneficiaries, and permitted assigns. The Company shall be permitted to\nassign or otherwise transfer this Agreement to any person, association, or entity which may hereafter acquire or succeed to all or\nsubstantially all of the business or assets of the Company by any means whether direct or indirect, by purchase, merger,\nconsolidation, or otherwise without Mr. Hawk's consent. This Agreement is personal to Mr. Hawk and not assignable by him.\nSection 10.\nNotices. Any notices under this Agreement shall be addressed as follows and delivered by any means\nwhich provides a receipt upon delivery. Notices to the Company shall be sent to the attention of Chief Executive Officer and\nExecutive Vice-President and Chief Legal Officer, 13131 Dairy Ashford, Suite 600, Sugar Land, TX 77478 or\nted.owen@teaminc.com and butch.bouchard@teaminc.com. Notices to Mr. Hawk shall be sent to: 4 Bradfield Court, Houston, TX\n77024 or phil.hawk@teaminc.com and Philip.j.hawk@gmail.com.\nSection 11.\nReasonableness of the Restrictions, Severability. The Parties agree that the restrictions in this Agreement\nare\nreasonable\nand\nnecessary\nto\nprotect\nthe\nCompany's\nConfidential\nInformation\nand\nCompany\nRelationships.\nNevertheless,\nif\nany\ncourt having jurisdiction finds any terms to be unenforceable for any reason, the court shall modify them to be enforceable. If such\ncourt finds any term of this Agreement to be unenforceable, it shall be severed and such finding shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in full force and effect.\nSection 12.\nEntire Agreement, Existing Duties, Modification of Agreement, No Waiver. The Parties have not relied\nupon any representations or statements, written or oral, not set forth in this Agreement. This Agreement represents the entire\nunderstanding between the Parties on the matters addressed, except that it supplements and does not replace any other agreement or\nobligation under any law between the Parties regarding fiduciary duties, duties of loyalty, conflict of interest, code of ethical\nconduct, confidentiality, non-\n3\ndisclosure, non-competition, and/or non-solicitation obligations. This Agreement may not be modified, changed or altered by any\npromise or statement by the Company other than in writing signed by Mr. Hawk and an authorized representative of Company. This\nAgreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together\nwill constitute one and the same Agreement. No failure by either Party hereto at any time to give notice of any breach by the other\nParty\nof,\nor\nto\nrequire compliance with, any condition or provision of this Agreement shall (i) be deemed a waiver of similar\nor\ndissimilar provisions or conditions at the same or at any prior or subsequent time, or (ii) preclude insistence upon strict compliance\nin the future.\nAgreed to and Executed By:\nTEAM, INC.\nBy:\n/s/ Ted W. Owen\nPrinted Name:\nTed W. Owen\nTitle: Chief Executive Officer\nDate Signed:\nAugust 8, 2016\n/s/ Philip J. Hawk\nPHILIP J. HAWK\nDate Signed:\nAugust 8, 2016\n4	EX-10 .1 2 tisi-06202016xex101.htm EXHIBIT 10.1\nExhibit 10.1\nNON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Non-Disclosure, Non-Competition and Non-Solicitation Agreement (the “Agreement”) is made between Philip J.\nHawk (“Mr. Hawk”) and Team Industrial Services, Inc., Team, Inc., and their affiliated entities (collectively the “Company”),\neffective as of August 8, 2016 (the “Effective Date”) for sufficient consideration as agreed to by the Parties. Mr. Hawk and the\nCompany may be referenced individually as “Party” or collectively as the “Parties.” This Agreement is in conjunction with Mr.\nHawk’s service on Team, Inc.’s Board of Directors (“Board”) and his transition to a non-employee member of the Board.\nSection 1.\nAccelerated Vesting of Restricted Stock Units. The Company will, as soon as administratively feasible\nafter the effective date of this Agreement, accelerate the vesting of certain of Mr. Hawk’s unvested restricted stock units, remove\nMr. Hawk’s continued employment as a condition for vesting under the long-term performance stock units, clarify the termination\ndate for exercising options under the 2007 non-qualified stock option award agreement and deliver the underlying shares as set forth\non Exhibit “A” to this Agreement (the “Accelerated Vesting”). Mr. Hawk acknowledges that this Accelerated Vesting is not due to\nMr. Hawk under any agreement or obligation of the Company and is provided solely in exchange for Mr. Hawk’s promises made in\nthis Agreement.\nSection 2.\nNon-Disclosure of Company’s Confidential Information. In connection with Mr. Hawk’s service on the\nBoard, and in exchange for Mr. Hawk’s promises made in this Agreement, the Company will provide Mr. Hawk with access to its\nConfidential Information and Company Relationships, which Mr. Hawk acknowledges to be valuable and critical to maintaining the\nCompany’s competitive advantage. Mr. Hawk acknowledges that “Confidential Information” includes, all information used by the\nCompany in its business and not known to the public, in spoken, printed, electronic or any other form or medium, relating directly\nor indirectly to: business opportunities and strategies, growth plans, potential mergers and acquisitions, information about third\nparties, training, and any issues or information coming before Board review or discussion, or any information designated or treated\nas confidential during Mr. Hawk’s service on the Board. The Company also shall provide Mr. Hawk with access to, information\nabout, and the unique opportunity to develop business relationships with, the Company’s customers, clients, vendors, business\npartners, potential acquisition targets, consultants, and other persons or entities with whom the Company has developed a business\nrelationship and goodwill (collectively, “Company Relationships”). Mr. Hawk agrees that he will not, during his service on the\nBoard, or at any time thereafter, make any disclosure or use of any Confidential Information, except as may be reasonably necessary\nin performing his duties for the benefit of the Company or as part of a good faith report or related disclosures to any governmental\nagency or entity regarding potential violations of applicable federal, state or local law or to take other actions protected as\nwhistleblower activity under applicable law. Mr. Hawk shall return or destroy (and provide written confirmation of the date and\ncontent and manner of the information destroyed), all Confidential Information to the Company upon request or upon the\ntermination of his Board service. The term “Confidential Information” does not include any information that (a) is or becomes,\navailable to Mr. Hawk on a non-confidential basis from a source other than the Company or its advisors or employees or others with\nan obligation to keep it confidential, or (b) is developed or derived by Mr. Hawk without the aid, application or use of such\nConfidential Information, including, without limitation, general perspectives on industry practices and business management that\nwere developed, in part, during Mr. Hawk’s tenure with the Company.\nSection 3.\nNon-Competition. Because of the Company’s legitimate business interest in protecting its Confidential\nInformation and Company Relationships, in exchange for the Company’s promises made in this Agreement and as a material\nincentive for the Company to enter into this Agreement, Mr. Hawk agrees that he will not, at any time during his service on the\nBoard, and for the later of (1) three years from the effective date of this Agreement or (2) the period commencing on the date of\ntermination of Mr. Hawk’s service on the Board and continuing for twelve (12) months thereafter (collectively referred to as the\n1\n“Restricted Period”), directly or indirectly, for himself or for others, in any state of the United States or in any business location\nworldwide where the Company is conducting or actively planning to conduct business as of the date Mr. Hawk’s Board service ends\nor in the previous twenty-four (24) months (the “Restricted Territory”), engage in any Prohibited Activity. “Prohibited Activity" is\nany activity involved with or supporting the same or similar business as the Company, or any activity which in any other way\nprovides the same or similar services as the Company provided during Mr. Hawk’s Board service up to the effective date of this\nAgreement, whether such actions are taken on behalf of Mr. Hawk or for others as set forth on Exhibit “B” to this Agreement;\nprovided, that, for the avoidance of doubt, the Parties acknowledge and agree that the Company, as of the effective date of this\nAgreement, does not provide industrial cleaning services in North America. Mr. Hawk expressly acknowledges and agrees that, due\nto the nature of his service with the Company, any activities falling within the definition of Prohibited Activity would necessarily\nand inevitably involve the use and/or disclosure by Mr. Hawk of the Company’s trade secrets and Confidential Information or\nCompany Relationships.\nSection 4.\nNon-Solicitation of Company Employees. Because of the Company’s legitimate business interest in\nprotecting its Confidential Information and Company Relationships, in exchange for the Company’s promises made in this\nAgreement and as a material incentive for the Company to enter into this Agreement, Mr. Hawk hereby agrees that he will not, at\nany time during the Restricted Period, for himself or for any other person or entity, solicit, hire or seek to hire any current or former\n(within the prior six months) employees of the Company, or in any other manner attempt, directly or indirectly, to influence, induce,\nor encourage any such current or former employees of the Company to leave his or her employment or work with the Company\n(“Prohibited Solicitation”). Mr. Hawk further agrees not to use or disclose to any person or entity any information concerning the\nnames, addresses, work or personal telephone numbers of any such current or former employees of the Company in association with\nany Prohibited Solicitation. Notwithstanding the foregoing, Mr. Hawk will not be deemed to have engaged in a Prohibited\nSolicitation about which he had no knowledge or participation. However, providing an introduction to or information about a person\nto be solicited or recruited will be considered participation in such solicitation.\nSection 5.\nInjunctive, Equitable and Legal Relief. Mr. Hawk acknowledges that he has or will receive sufficient\nmonetary and other consideration from the Company to justify the restrictions in this Agreement. In the event of (a) a breach, as\nfinally determined by a court of competent jurisdiction in a non-appealable decision, or (b) any challenge to or finding of\nenforceability of any term of this Agreement, Mr. Hawk shall immediately forfeit all rights to any long-term performance stock\nunits and restricted stock units and shall return to the Company all rights to and any value received from the restricted stock units\nsubject to the Accelerated Vesting under this Agreement scheduled and delivered to him after calendar year 2016. For any restricted\nstock units scheduled to be delivered after calendar year 2016, but not yet delivered at the time of an enforceability challenge or\nfinding of breach, Mr. Hawk shall immediately forfeit all rights to such restricted stock units and the Company shall be relieved of\nany obligation of delivery. Such return or forfeiture of delivery is not considered liquidated damages and is in addition to the\nCompany’s right to seek any and all remedies available at law or in equity, including, the recovery of damages from Mr. Hawk, as\nwell as attorneys’ fees or costs involved in litigating this Agreement, and specific performance and injunctive relief as monetary\ndamages will not be sufficient to remedy such breach or challenge to the terms of this Agreement. The Parties agree that only in the\nevent of litigation of any alleged breach of the terms of this Agreement, and not in the case of a challenge to the enforceability, that\nthe prevailing party, as finally determined by the applicable court, shall be entitled to his or its reasonable attorney fees and costs\nincurred in litigating the terms of this Agreement.\nSection 6.\nNo Use of Other Parties’ Confidential Information or Conflicting Obligations of Mr. Hawk. Mr. Hawk\npromises that he will not use, disclose to the Company, bring on Company premises, or induce the Company or any of its directors,\nagents or employees to intentionally or unintentionally use or disclose,\n2\nany confidential or proprietary information or material belonging to any other person or entity and for which the Company is not an\nauthorized user. Mr. Hawk will not enter into any agreement or undertake any other duty, whether written or oral, in conflict with\nthe provisions of this Agreement. Mr. Hawk represents that his service on the Board will not breach any agreement or other duty\nMr. Hawk has to keep in confidence proprietary information, knowledge or data belonging to other persons or entities.\nSection 7.\nCertain Acknowledgements. It is acknowledged and agreed that Mr. Hawk is involved in a variety of\nbusinesses and may have acquired (or invested in), or may acquire (or invest in), directly or indirectly, other businesses. For\navoidance of doubt, nothing in this Agreement is intended to limit Mr. Hawk’s ability to acquire, invest in, advise, manage or\noperate such other businesses, as long as, in doing so, Mr. Hawk does not violate any provision of this Agreement, or any other\nobligations Mr. Hawk has towards the Company, including duties under any applicable law or agreement such as fiduciary and\nloyalty and confidentiality duties as a Team director, and all policies and procedures applicable to Team directors such as the Code\nof Conduct, governance principles, and all of the Company’s board policies and procedures.\nSection 8.\nChoice of Law and Mandatory Forum; Waiver of Jury Trial. This Agreement is entered into under, and\nshall be governed for all purposes by, the laws of the State of Texas. Unless any injunctive or equitable relief sought requires filing\nelsewhere, the Parties agree to submit all disputes arising out of or relating to this Agreement to the exclusive jurisdiction of the\nstate and federal courts, as appropriate, in Harris County, Texas. Mr. Hawk hereby expressly consents to the jurisdiction of the\nforegoing courts for such purposes and waives any challenges to the jurisdiction of the foregoing courts. The Parties waive all rights\nto a jury trial for any claims between them under this Agreement or otherwise. The Parties consent to trial by the judge.\nSection 9.\nSuccessors/Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and\ntheir respective heirs, legal representatives, successors, beneficiaries, and permitted assigns. The Company shall be permitted to\nassign or otherwise transfer this Agreement to any person, association, or entity which may hereafter acquire or succeed to all or\nsubstantially all of the business or assets of the Company by any means whether direct or indirect, by purchase, merger,\nconsolidation, or otherwise without Mr. Hawk’s consent. This Agreement is personal to Mr. Hawk and not assignable by him.\nSection 10.\nNotices. Any notices under this Agreement shall be addressed as follows and delivered by any means\nwhich provides a receipt upon delivery. Notices to the Company shall be sent to the attention of Chief Executive Officer and\nExecutive Vice-President and Chief Legal Officer, 13131 Dairy Ashford, Suite 600, Sugar Land, TX 77478 or\nted.owen@teaminc.com and butch.bouchard@teaminc.com. Notices to Mr. Hawk shall be sent to: 4 Bradfield Court, Houston, TX\n77024 or phil.hawk@teaminc.com and Philip.j.hawk@gmail.com .\nSection 11.\nReasonableness of the Restrictions, Severability. The Parties agree that the restrictions in this Agreement\nare reasonable and necessary to protect the Company’s Confidential Information and Company Relationships. Nevertheless, if any\ncourt having jurisdiction finds any terms to be unenforceable for any reason, the court shall modify them to be enforceable. If such\ncourt finds any term of this Agreement to be unenforceable, it shall be severed and such finding shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in full force and effect.\nSection 12.\nEntire Agreement, Existing Duties, Modification of Agreement, No Waiver. The Parties have not relied\nupon any representations or statements, written or oral, not set forth in this Agreement. This Agreement represents the entire\nunderstanding between the Parties on the matters addressed, except that it supplements and does not replace any other agreement or\nobligation under any law between the Parties regarding fiduciary duties, duties of loyalty, conflict of interest, code of ethical\nconduct, confidentiality, non-\n3\ndisclosure, non-competition, and/or non-solicitation obligations. This Agreement may not be modified, changed or altered by any\npromise or statement by the Company other than in writing signed by Mr. Hawk and an authorized representative of Company. This\nAgreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together\nwill constitute one and the same Agreement. No failure by either Party hereto at any time to give notice of any breach by the other\nParty of, or to require compliance with, any condition or provision of this Agreement shall (i) be deemed a waiver of similar or\ndissimilar provisions or conditions at the same or at any prior or subsequent time, or (ii) preclude insistence upon strict compliance\nin the future.\nAgreed to and Executed By:\nTEAM, INC.\nBy:\n/s/ Ted W. Owen\nPrinted Name:\nTed W. Owen\nTitle: Chief Executive Officer\nDate Signed:\nAugust 8, 2016\n/s/ Philip J. Hawk\nPHILIP J. HAWK\nDate Signed:\nAugust 8, 2016\n4
b7783ba532f983dcda31187c61fd024f.pdf	effective_date jurisdiction party term	EX-10.2 3 dex102.htm CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nExhibit 10.2\nCONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nThis Confidential Settlement Agreement and Mutual General Release (“Agreement”), dated this 31st day of May, 2007, is made and entered\ninto by and between PLAINTIFF/COUNTER-DEFENDANT ALLENDALE PHARMACEUTICALS, INC. (“Allendale”), THIRD-PARTY\nDEFENDANT TODAY’S WOMENCARE COMPANY, and DEFENDANT/COUNTER-CLAIMANT RADIANT TECHNOLOGIES, INC.\n(“Radiant”).\nI. DEFINITIONS\nThe following terms as used in this Agreement shall be defined as set forth below:\n1. All references to “Allendale” shall refer to Plaintiff/Counter-Defendant Allendale Pharmaceuticals, Inc., its predecessors, successors,\nparents, subsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives\nincluding, but not limited to, Today’s WomenCare Company and Synova Healthcare Group, Inc. (“Synova”).\n2. All references to “Radiant” shall refer to Defendant/Counter-Claimant Radiant Technologies, Inc., its predecessors, successors, parents,\nsubsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives including, but\nnot limited to, Pathfinder Management, Inc.\n3. All references to “Party” or “Parties” shall refer to “Allendale” and “Radiant” as defined above.\nPage 1\n4. All references to the “Lawsuit” shall refer to the matter captioned Allendale Pharmaceuticals, Inc. v. Radiant Technologies, Inc., et al.,\nbearing Docket No. 06 CV 3465, filed in the United States District Court for the Southern District of New York.\nII. RECITALS\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Exclusive Distribution and Services Agreement”\n(the “Distribution Agreement”); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Loan and Credit Agreement” (the “Loan and\nCredit Agreement”); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Common Stock Purchase Agreement” (“Stock\nPurchase Agreement”); and\nWHEREAS Allendale filed the Lawsuit against Radiant on May 5, 2006 asserting a breach of contract claim (Count I), a breach of the\nCovenant of Good Faith and Fair Dealing claim (Count II), and a claim for Declaratory Judgment (Count III); and\nWHEREAS Radiant filed an Answer, Counterclaim, and Third-Party Complaint to the Lawsuit on July 24, 2006 asserting in its Counterclaim\na breach of contract claim (Count I), a claim for Declaratory Judgment (Count II), and a claim for breach of the Loan and Credit Agreement (Count\nIII); and\nWHEREAS Allendale filed an Answer to Radiant’s Counterclaim and Third-Party Complaint on August 14, 2006; and\nWHEREAS on January 12, 2007, Synova acquired Allendale by merger; and\nWHEREAS the Parties have agreed to amicably resolve all their differences arising from and related to the Lawsuit.\nPage 2\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and in\nconsideration of the foregoing recitals and of the mutual covenants and agreements contained herein, and intending to be legally bound, the Parties\ndo hereby covenant and agree as follows:\nIII. AGREEMENT TERMS\nA. Payment of Settlement Amount, Transfer of Stock and Assignment/Conveyance of Accounts Receivable\n1. Subject to the other conditions and limitations contained herein, Synova, on behalf of Allendale, shall cause to be transferred to Radiant one\nmillion (1,000,000) shares of Synova common stock, which transfer of stock shall occur within ten (10) business days of the execution of this\nAgreement. The parties acknowledge that Radiant’s has the right to receive 145,422 shares of Synova common stock in conjunction with the\nJanuary 12, 2007 merger of Allendale with and into a wholly owned subsidiary of Synova, and further acknowledge that nothing in this Agreement\nshall have any affect on Radiant’s said current stock ownership.\n2. Allendale shall pay Radiant the sum of $100,000.00 (“Settlement Payment Amount”). Said Settlement Payment Amount in the form of a\ncheck made payable to “Radiant Technologies, Inc.” shall be forwarded to Radiant upon the execution of this Agreement.\n3. Radiant shall transfer, assign and/or convey to Synova, together with all rights to Today® Product returns authorized by Radiant or Allendale\nor both, all accounts receivable with retailers associated with the sale of said Products outstanding as of April 25, 2007, which accounts receivable\ntotaled approximately $779,000 pursuant to Radiant’s books. Radiant shall provide Synova with written proof and\nPage 3\nconfirmation of the transfer, assignment and/or conveyance of said outstanding accounts receivable, in whatever form is acceptable to the respective\nretailers, within ten (10) days of the execution of this Agreement, or as soon thereafter as is reasonable based upon delays caused by the retailer\naccounts. Further, within three (3) days of collecting any monies involving the outstanding accounts receivable described in this Paragraph 3,\nRadiant shall promptly transfer said monies to Synova.\n4. Allendale agrees to indemnify and hold harmless Radiant for any claims brought by retail customers for product liability, product defects,\nrecalls, retailer credits, or allowances for returns or in store promotions, or any other claims or charges asserted by retail customers in connection\nwith those accounts being transferred, assigned and/or conveyed to Allendale by Radiant pursuant to this Agreement, but only to the extent such\nclaims are not covered by the Parties’ insurance policies. Further, it is agreed that Allendale has no obligation to indemnify and hold harmless\nRadiant as to any claims that result or arise from Radiant’s own negligence or reckless or willful misconduct, nor from any such claims that Radiant\nhas or should have knowledge of at the time this Agreement is executed. Radiant acknowledges that it is not aware of any such claims having been\nasserted, or made or otherwise existing as of the date this Agreement is being executed. Allendale shall name Radiant as an additional named insured\non its products liability policy covering the sale of Allendale products. Allendale acknowledges that, in reliance on this representation by Allendale,\nRadiant is discontinuing all products liability insurance coverage pertaining to the sale of Allendale products.\nPage 4\nB. Parties’ Mutual Release of Claims\nIn consideration of the above, the Parties hereby FULLY, COMPLETELY AND FOREVER RELEASE AND DISCHARGE each other and\neach of their past, present and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives,\nagents, servants, attorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, of and from any\nand all past, present and future claims, actions, causes of action, suits, debts, dues, sums of money, attorneys’ fees, accounts, reckonings, bonds,\nbills, specialties, covenants, contracts, appraisal rights, controversies, judgments, extends, executions, liabilities, demands or obligations of any kind\nwhatsoever, whether in law or equity, which they ever had, now have or hereafter can, shall or may have against each other and each of their past,\npresent and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives, agents, servants,\nattorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, for, upon or by reason of any\nmatter, cause or thing whatsoever, whether now known or unknown, fixed or unliquidated, conditional or contingent, which currently exists or\nsubsequently accrues with respect to any and all claims including, but not limited to, those claims relating to or arising out of the Distribution\nAgreement, the Loan and Credit Agreement and the Stock Purchase Agreement as well as all other claims that were brought or could have been\nbrought in the Lawsuit.\nC. Dismissal With Prejudice\nFor and in consideration of the promises and consideration described in this Agreement, and as a material inducement to the Parties to enter\ninto this Agreement, the Parties willingly and knowingly agree to execute and file with the Court a Stipulation of Dismissal with Prejudice as to any\nand all claims raised in the Lawsuit.\nPage 5\nD. No Admission of Liability\n1. The purpose of this Agreement is to resolve fully, completely and finally all past, present and future matters, controversies, claims, and\ndisputes between and among the Parties.\n2. This Agreement is the result of a compromised settlement of disputed claims and defenses and is not and shall not be construed as an\nadmission or concession of responsibility, liability or any wrongdoing on the part of any Party. To the contrary, the Parties expressly deny any and all\nallegations and claims asserted against each other in the Lawsuit.\n3. The Parties specifically disclaim violating any law or committing any unlawful action against each other, and expressly deny any liability,\nresponsibility or obligation to each other with regard to the allegations and claims raised and asserted in the Lawsuit.\nE. Confidentiality\n1. The terms of this Agreement, the fact that this Agreement has been entered into, and all negotiations leading up to the execution of the\nAgreement, shall be deemed CONFIDENTIAL and shall not be further disclosed to any person or entity except as required by applicable law, rule or\nregulation (including, without limitation, the requirements under any federal or state securities laws, rules or regulations (or any judicial or\nregulatory interpretations thereof) applicable to Synova that may require disclosure of the terms of this Agreement or the fact that this Agreement\nhas been entered into), or with the written consent of the Parties hereto following the execution of\nPage 6\nthis Agreement; provided, however, that nothing in this Agreement shall prevent any Party hereto from disclosing the existence or terms of this\nAgreement in the course of the Parties’ normal business affairs, as regarding communications with their accountants, advisors, insurance companies,\nattorneys, and all regulatory agencies/bodies having a bona fide need to know such information, or in any judicial proceeding to enforce or construe\nthis Agreement.\n2. From and after the date of this Agreement, neither Party shall make any public disparaging statements concerning the officers, directors,\nemployees, attorneys, agents, or of the business or operations, of the other Party. This non-disparagement provision shall not in any way prevent the\nparties from disclosing any information to their attorneys, in response to a lawful subpoena or court order requiring disclosure of information, or in\nconnection with any litigation involving either Party.\nF. Assignment\nThe Parties hereto represent and warrant that they have not assigned nor otherwise transferred or assigned any claims or rights they may have\narising out of or relating in any way to the claims in the Lawsuit, the Distribution Agreement, the Loan and Credit Agreement, and/or the Stock\nPurchase Agreement.\nG. Further Assurances\nRadiant agrees that it will (1) promptly execute and deliver to Synova all further documents, agreements and instruments, (2) deliver in writing\ncustomary representations and warranties, and (3) provide Synova with such other documents or information, reasonably requested by Synova or\nAllendale (whether in connection with or following the execution of this Agreement).\nPage 7\nH. Representations and Warranties\n1. The Parties hereto represent and warrant to each other that the execution and delivery of this Agreement have been done freely and\nvoluntarily and, to the extent necessary, have been duly and validly authorized and approved as need be, and that no further action is necessary to\nmake this Agreement valid and binding on each of the Parties hereto.\n2. The Parties hereto further represent and warrant to each other that:\na. Each Party has participated in the drafting of this Agreement after consulting with counsel;\nb. This Agreement was reviewed and approved by counsel for all Parties and that no Party shall maintain that the language of the\nAgreement should be construed against any other Party by virtue of that Party’s putative role as drafter;\nc. No representations, warranties or promises have been made or relied upon by any of the Parties other than as expressly set forth\nherein;\nd. They have read this Agreement;\ne. They have not been coerced into signing this Agreement;\nf. They have the full and express authority to execute it on behalf of each Party on whose behalf they have signed; and\ng. They understand its contents and are executing it freely and voluntarily with an intent to bind their respective Parties to its terms.\nI. Entire Agreement\n1. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior written or\noral agreements, understandings, and negotiations.\nPage 8\n2. This Agreement may be modified only by a written amendment signed by the Parties, and no waiver of any provision of this Agreement or\nthe breach thereof shall be effective unless expressed in a writing signed by the waiving Party. The waiver by any Party hereto of any of the\nprovisions of this Agreement or the breach thereof shall not operate or be construed as a waiver of any subsequent or other breach.\nJ. Governing Law\nThis Agreement shall be interpreted, enforced, and governed under the laws of New Jersey.\nK. Severability\nIf any provision of this Agreement is declared or determined by any court to be illegal or invalid, that part shall be excluded from the\nAgreement, but the validity of the remaining parts, terms, or provisions shall not be affected.\nL. Headings\nHeadings contained herein are for purposes of organization only, and shall not constitute a part of this Agreement.\n[signatures appear on following page]\nPage 9\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on their behalf by the signatures of their duly authorized\nrepresentatives below.\nALLENDALE PHAMACUETICALS, INC.\nRADIANT TECHNOLOGIES, INC.\nBY: /s/ Robert L. Edwards\nBY: /s/ Mitch Gray\nDated: May 31, 2007\nDated: May 31, 2007\nTODAY’S WOMENCARE COMPANY\nPATHFINDER MANAGEMENT, INC.\nBY: /s/ Robert L. Edwards\nBY: /s/ Mitch Gray\nDated: May 31, 2007\nDated: May 31, 2007\nSYNOVA HEALTHCARE GROUP, INC.\nBY: /s/ Robert L. Edwards\nDated: May 31, 2007\nPage 10	EX-10.2 3 dex102.htm CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nExhibit 10.2\nCONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nThis Confidential Settlement Agreement and Mutual General Release (“Agreement”), dated this 31st day of May, 2007, is made and entered\ninto by and between PLAINTIFF/COUNTER-DEFENDANT ALLENDALE PHARMACEUTICALS, INC. (“Allendale”), THIRD-PARTY\nDEFENDANT TODAY’S WOMENCARE COMPANY, and DEFENDANT/COUNTER-CLAIMANT RADIANT TECHNOLOGIES, INC.\n(“Radiant”).\nI. DEFINITIONS\nThe following terms as used in this Agreement shall be defined as set forth below:\n1. All references to “Allendale” shall refer to Plaintiff/Counter-Defendant Allendale Pharmaceuticals, Inc., its predecessors, successors,\nparents, subsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives\nincluding, but not limited to, Today’s WomenCare Company and Synova Healthcare Group, Inc. (“Synova®).\n2. All references to “Radiant” shall refer to Defendant/Counter-Claimant Radiant Technologies, Inc., its predecessors, successors, parents,\nsubsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives including, but\nnot limited to, Pathfinder Management, Inc.\n3. All references to “Party” or “Parties” shall refer to “Allendale” and “Radiant” as defined above.\nPage 1\n4. All references to the “Lawsuit” shall refer to the matter captioned Allendale Pharmaceuticals, Inc. v. Radiant Technologies, Inc., et al.,\nbearing Docket No. 06 CV 3465, filed in the United States District Court for the Southern District of New York.\nII. RECITALS\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Exclusive Distribution and Services Agreement”\n(the “Distribution Agreement”); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Loan and Credit Agreement” (the “Loan and\nCredit Agreement”); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Common Stock Purchase Agreement” (“Stock\nPurchase Agreement”); and\nWHEREAS Allendale filed the Lawsuit against Radiant on May 5, 2006 asserting a breach of contract claim (Count I), a breach of the\nCovenant of Good Faith and Fair Dealing claim (Count II), and a claim for Declaratory Judgment (Count III); and\nWHEREAS Radiant filed an Answer, Counterclaim, and Third-Party Complaint to the Lawsuit on July 24, 2006 asserting in its Counterclaim\na breach of contract claim (Count I), a claim for Declaratory Judgment (Count II), and a claim for breach of the Loan and Credit Agreement (Count\n1IT); and\nWHEREAS Allendale filed an Answer to Radiant’s Counterclaim and Third-Party Complaint on August 14, 2006; and\nWHEREAS on January 12, 2007, Synova acquired Allendale by merger; and\nWHEREAS the Parties have agreed to amicably resolve all their differences arising from and related to the Lawsuit.\nPage 2\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and in\nconsideration of the foregoing recitals and of the mutual covenants and agreements contained herein, and intending to be legally bound, the Parties\ndo hereby covenant and agree as follows:\nIII. AGREEMENT TERMS\nA. Payment of Settlement Amount, Transfer of Stock and Assignment/Conveyance of Accounts Receivable\n1. Subject to the other conditions and limitations contained herein, Synova, on behalf of Allendale, shall cause to be transferred to Radiant one\nmillion (1,000,000) shares of Synova common stock, which transfer of stock shall occur within ten (10) business days of the execution of this\nAgreement. The parties acknowledge that Radiant’s has the right to receive 145,422 shares of Synova common stock in conjunction with the\nJanuary 12, 2007 merger of Allendale with and into a wholly owned subsidiary of Synova, and further acknowledge that nothing in this Agreement\nshall have any affect on Radiant’s said current stock ownership.\n2. Allendale shall pay Radiant the sum of $100,000.00 (“Settlement Payment Amount”). Said Settlement Payment Amount in the form of a\ncheck made payable to “Radiant Technologies, Inc.” shall be forwarded to Radiant upon the execution of this Agreement.\n3. Radiant shall transfer, assign and/or convey to Synova, together with all rights to Today® Product returns authorized by Radiant or Allendale\nor both, all accounts receivable with retailers associated with the sale of said Products outstanding as of April 25, 2007, which accounts receivable\ntotaled approximately $779,000 pursuant to Radiant’s books. Radiant shall provide Synova with written proof and\nPage 3\nconfirmation of the transfer, assignment and/or conveyance of said outstanding accounts receivable, in whatever form is acceptable to the respective\nretailers, within ten (10) days of the execution of this Agreement, or as soon thereafter as is reasonable based upon delays caused by the retailer\naccounts. Further, within three (3) days of collecting any monies involving the outstanding accounts receivable described in this Paragraph 3,\nRadiant shall promptly transfer said monies to Synova.\n4. Allendale agrees to indemnify and hold harmless Radiant for any claims brought by retail customers for product liability, product defects,\nrecalls, retailer credits, or allowances for returns or in store promotions, or any other claims or charges asserted by retail customers in connection\nwith those accounts being transferred, assigned and/or conveyed to Allendale by Radiant pursuant to this Agreement, but only to the extent such\nclaims are not covered by the Parties’ insurance policies. Further, it is agreed that Allendale has no obligation to indemnify and hold harmless\nRadiant as to any claims that result or arise from Radiant’s own negligence or reckless or willful misconduct, nor from any such claims that Radiant\nhas or should have knowledge of at the time this Agreement is executed. Radiant acknowledges that it is not aware of any such claims having been\nasserted, or made or otherwise existing as of the date this Agreement is being executed. Allendale shall name Radiant as an additional named insured\non its products liability policy covering the sale of Allendale products. Allendale acknowledges that, in reliance on this representation by Allendale,\nRadiant is discontinuing all products liability insurance coverage pertaining to the sale of Allendale products.\nPage 4\nB. Parties’ Mutual Release of Claims\nIn consideration of the above, the Parties hereby FULLY, COMPLETELY AND FOREVER RELEASE AND DISCHARGE each other and\neach of their past, present and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives,\nagents, servants, attorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, of and from any\nand all past, present and future claims, actions, causes of action, suits, debts, dues, sums of money, attorneys’ fees, accounts, reckonings, bonds,\nbills, specialties, covenants, contracts, appraisal rights, controversies, judgments, extends, executions, liabilities, demands or obligations of any kind\nwhatsoever, whether in law or equity, which they ever had, now have or hereafter can, shall or may have against each other and each of their past,\npresent and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives, agents, servants,\nattorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, for, upon or by reason of any\nmatter, cause or thing whatsoever, whether now known or unknown, fixed or unliquidated, conditional or contingent, which currently exists or\nsubsequently accrues with respect to any and all claims including, but not limited to, those claims relating to or arising out of the Distribution\nAgreement, the Loan and Credit Agreement and the Stock Purchase Agreement as well as all other claims that were brought or could have been\nbrought in the Lawsuit.\nC. Dismissal With Prejudice\nFor and in consideration of the promises and consideration described in this Agreement, and as a material inducement to the Parties to enter\ninto this Agreement, the Parties willingly and knowingly agree to execute and file with the Court a Stipulation of Dismissal with Prejudice as to any\nand all claims raised in the Lawsuit.\nPage 5\nD. No Admission of Liability\n1. The purpose of this Agreement is to resolve fully, completely and finally all past, present and future matters, controversies, claims, and\ndisputes between and among the Parties.\n2. This Agreement is the result of a compromised settlement of disputed claims and defenses and is not and shall not be construed as an\nadmission or concession of responsibility, liability or any wrongdoing on the part of any Party. To the contrary, the Parties expressly deny any and all\nallegations and claims asserted against each other in the Lawsuit.\n3. The Parties specifically disclaim violating any law or committing any unlawful action against each other, and expressly deny any liability,\nresponsibility or obligation to each other with regard to the allegations and claims raised and asserted in the Lawsuit.\nE. Confidentiality\n1. The terms of this Agreement, the fact that this Agreement has been entered into, and all negotiations leading up to the execution of the\nAgreement, shall be deemed CONFIDENTIAL and shall not be further disclosed to any person or entity except as required by applicable law, rule or\nregulation (including, without limitation, the requirements under any federal or state securities laws, rules or regulations (or any judicial or\nregulatory interpretations thereof) applicable to Synova that may require disclosure of the terms of this Agreement or the fact that this Agreement\nhas been entered into), or with the written consent of the Parties hereto following the execution of\nPage 6\nthis Agreement; provided, however, that nothing in this Agreement shall prevent any Party hereto from disclosing the existence or terms of this\nAgreement in the course of the Parties’ normal business affairs, as regarding communications with their accountants, advisors, insurance companies,\nattorneys, and all regulatory agencies/bodies having a bona fide need to know such information, or in any judicial proceeding to enforce or construe\nthis Agreement.\n2. From and after the date of this Agreement, neither Party shall make any public disparaging statements concerning the officers, directors,\nemployees, attorneys, agents, or of the business or operations, of the other Party. This non-disparagement provision shall not in any way prevent the\nparties from disclosing any information to their attorneys, in response to a lawful subpoena or court order requiring disclosure of information, or in\nconnection with any litigation involving either Party.\nF. Assignment\nThe Parties hereto represent and warrant that they have not assigned nor otherwise transferred or assigned any claims or rights they may have\narising out of or relating in any way to the claims in the Lawsuit, the Distribution Agreement, the Loan and Credit Agreement, and/or the Stock\nPurchase Agreement.\nG. Further Assurances\nRadiant agrees that it will (1) promptly execute and deliver to Synova all further documents, agreements and instruments, (2) deliver in writing\ncustomary representations and warranties, and (3) provide Synova with such other documents or information, reasonably requested by Synova or\nAllendale (whether in connection with or following the execution of this Agreement).\nPage 7\nH. Representations and Warranties\n1. The Parties hereto represent and warrant to each other that the execution and delivery of this Agreement have been done freely and\nvoluntarily and, to the extent necessary, have been duly and validly authorized and approved as need be, and that no further action is necessary to\nmake this Agreement valid and binding on each of the Parties hereto.\n2. The Parties hereto further represent and warrant to each other that:\na. Each Party has participated in the drafting of this Agreement after consulting with counsel;\nb. This Agreement was reviewed and approved by counsel for all Parties and that no Party shall maintain that the language of the\nAgreement should be construed against any other Party by virtue of that Party’s putative role as drafter;\nc. No representations, warranties or promises have been made or relied upon by any of the Parties other than as expressly set forth\nherein;\nd. They have read this Agreement;\ne. They have not been coerced into signing this Agreement;\nf. They have the full and express authority to execute it on behalf of each Party on whose behalf they have signed; and\ng. They understand its contents and are executing it freely and voluntarily with an intent to bind their respective Parties to its terms.\nI.  Entire Agreement\n1. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior written or\noral agreements, understandings, and negotiations.\nPage 8\n2. This Agreement may be modified only by a written amendment signed by the Parties, and no waiver of any provision of this Agreement or\nthe breach thereof shall be effective unless expressed in a writing signed by the waiving Party. The waiver by any Party hereto of any of the\nprovisions of this Agreement or the breach thereof shall not operate or be construed as a waiver of any subsequent or other breach.\nJ.  Governing Law\nThis Agreement shall be interpreted, enforced, and governed under the laws of New Jersey.\nK. Severability\nIf any provision of this Agreement is declared or determined by any court to be illegal or invalid, that part shall be excluded from the\nAgreement, but the validity of the remaining parts, terms, or provisions shall not be affected.\nL. Headings\nHeadings contained herein are for purposes of organization only, and shall not constitute a part of this Agreement.\n[signatures appear on following page]\nPage 9\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on their behalf by the signatures of their duly authorized representatives below.\nALLENDALE PHAMACUETICALS, INC.\nBY: /s/ Robert L. Edwards\nDated: May 31, 2007\nTODAY’S WOMENCARE COMPANY\nBY: /s/ Robert L. Edwards\nDated: May 31, 2007\nSYNOVA HEALTHCARE GROUP, INC.\nBY: /s/ Robert L. Edwards\nDated: May 31, 2007\nPage 10\nRADIANT TECHNOLOGIES, INC.\nBY: /s/ Mitch Gray\nDated: May 31, 2007\nPATHFINDER MANAGEMENT, INC.\nBY: /s/ Mitch Gray\nDated: May 31, 2007	EX-10.2 3 dex102.htm CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nExhibit 10.2\nCONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nThis Confidential Settlement Agreement and Mutual General Release ("Agreement"), dated this 31st day of May, 2007, is made and entered\ninto by and between PLAINTIFF/COUNTER-DEFENDANT ALLENDALE PHARMACEUTICALS, INC. ("Allendale"), THIRD-PARTY\nDEFENDANT TODAY'S WOMENCARE COMPANY, and DEFENDANT/COUNTER-CLAIMANT RADIANT TECHNOLOGIES, INC.\n("Radiant").\nI. DEFINITIONS\nThe following terms as used in this Agreement shall be defined as set forth below:\n1. All references to "Allendale" shall refer to Plaintiff/Counter-Defendant Allendale Pharmaceuticals, Inc., its predecessors, successors,\nparents, subsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives\nincluding, but not limited to, Today's WomenCare Company and Synova Healthcare Group, Inc. ("Synova").\n2. All references to "Radiant" shall refer to Defendant/Counter-Claimant Radiant Technologies, Inc., its predecessors, successors, parents,\nsubsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives including, but\nnot limited to, Pathfinder Management, Inc.\n3.\nAll references to "Party" or "Parties" shall refer to "Allendale" and "Radiant" as defined above\nPage 1\n4. All references to the "Lawsuit" shall refer to the matter captioned Allendale Pharmaceuticals, Inc. V. Radiant Technologies, Inc., et al.,\nbearing Docket No. 06 CV 3465, filed in the United States District Court for the Southern District of New York.\nII. RECITALS\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, "Exclusive Distribution and Services Agreement"\n(the "Distribution Agreement"); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, "Loan and Credit Agreement" (the "Loan and\nCredit Agreement"); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, "Common Stock Purchase Agreement" ("Stock\nPurchase Agreement"); and\nWHEREAS Allendale filed the Lawsuit against Radiant on May 5, 2006 asserting a breach of contract claim (Count I), a breach of the\nCovenant of Good Faith and Fair Dealing claim (Count II), and a claim for Declaratory Judgment (Count III); and\nWHEREAS Radiant filed an Answer, Counterclaim, and Third-Party Complaint to the Lawsuit on July 24, 2006 asserting in its Counterclaim\na breach of contract claim (Count I), a claim for Declaratory Judgment (Count II), and a claim for breach of the Loan and Credit Agreement (Count\nIII) and\nWHEREAS Allendale filed an Answer to Radiant's Counterclaim and Third-Party Complaint on August 14, 2006; and\nWHEREAS on January 12, 2007, Synova acquired Allendale by merger; and\nWHEREAS the Parties have agreed to amicably resolve all their differences arising from and related to the Lawsuit.\nPage 2\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and in\nconsideration of the foregoing recitals and of the mutual covenants and agreements contained herein, and intending to be legally bound, the Parties\ndo hereby covenant and agree as follows:\nIII. AGREEMENT TERMS\nA. Payment of Settlement Amount, Transfer of Stock and Assignment/Conveyance of Accounts Receivable\n1. Subject to the other conditions and limitations contained herein, Synova, on behalf of Allendale, shall cause to be transferred to Radiant one\nmillion (1,000,000) shares of Synova common stock, which transfer of stock shall occur within ten (10) business days of the execution of this\nAgreement. The parties acknowledge that Radiant's has the right to receive 145,422 shares of Synova common stock in conjunction with the\nJanuary 12, 2007 merger of Allendale with and into a wholly owned subsidiary of Synova, and further acknowledge that nothing in this Agreement\nshall have any affect on Radiant's said current stock ownership.\n2. Allendale shall pay Radiant the sum of $100,000.00 ("Settlement Payment Amount"). Said Settlement Payment Amount in the form of\na\ncheck made payable to "Radiant Technologies, Inc." shall be forwarded to Radiant upon the execution of this Agreement.\n3. Radiant shall transfer, assign and/or convey to Synova, together with all rights to Today Product returns authorized by Radiant or Allendale\nor both, all accounts receivable with retailers associated with the sale of said Products outstanding as of April 25, 2007, which accounts receivable\ntotaled approximately $779,000 pursuant to Radiant's books. Radiant shall provide Synova with written proof and\nPage 3\nconfirmation of the transfer, assignment and/or conveyance of said outstanding accounts receivable, in whatever form is acceptable to the respective\nretailers, within ten (10) days of the execution of this Agreement, or as soon thereafter as is reasonable based upon delays caused by the retailer\naccounts. Further, within three (3) days of collecting any monies involving the outstanding accounts receivable described in this Paragraph 3,\nRadiant shall promptly transfer said monies to Synova.\n4. Allendale agrees to indemnify and hold harmless Radiant for any claims brought by retail customers for product liability, product defects,\nrecalls, retailer credits, or allowances for returns or in store promotions, or any other claims or charges asserted by retail customers in connection\nwith those accounts being transferred, assigned and/or conveyed to Allendale by Radiant pursuant to this Agreement, but only to the extent such\nclaims are not covered by the Parties' insurance policies. Further, it is agreed that Allendale has no obligation to indemnify and hold harmless\nRadiant as to any claims that result or arise from Radiant's own negligence or reckless or willful misconduct, nor from any such claims that Radiant\nhas or should have knowledge of at the time this Agreement is executed. Radiant acknowledges that it is not aware of any such claims having been\nasserted, or made or otherwise existing as of the date this Agreement is being executed. Allendale shall name Radiant as an additional named insured\non its products liability policy covering the sale of Allendale products. Allendale acknowledges that, in reliance on this representation by Allendale,\nRadiant is discontinuing all products liability insurance coverage pertaining to the sale of Allendale products.\nPage 4\nB.\nParties' Mutual Release of Claims\nIn consideration of the above, the Parties hereby FULLY, COMPLETELY AND FOREVER RELEASE AND DISCHARGE each other and\neach of their past, present and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives,\nagents, servants, attorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, of and from any\nand all past, present and future claims, actions, causes of action, suits, debts, dues, sums of money, attorneys' fees, accounts, reckonings, bonds,\nbills, specialties, covenants, contracts, appraisal rights, controversies, judgments, extends, executions, liabilities, demands or obligations of any kind\nwhatsoever, whether in law or equity, which they ever had, now have or hereafter can, shall or may have against each other and each of their past,\npresent and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives, agents, servants,\nattorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, for, upon or by reason of any\nmatter, cause or thing whatsoever, whether now known or unknown, fixed or unliquidated, conditional or contingent, which currently exists or\nsubsequently accrues with respect to any and all claims including, but not limited to, those claims relating to or arising out of the Distribution\nAgreement, the Loan and Credit Agreement and the Stock Purchase Agreement as well as all other claims that were brought or could have been\nbrought in the Lawsuit.\nC. Dismissal With Prejudice\nFor and in consideration of the promises and consideration described in this Agreement, and as a material inducement to the Parties to enter\ninto this Agreement, the Parties willingly and knowingly agree to execute and file with the Court a Stipulation of Dismissal with Prejudice as to any\nand all claims raised in the Lawsuit.\nPage 5\nD.\nNo Admission of Liability.\n1. The purpose of this Agreement is to resolve fully, completely and finally all past, present and future matters, controversies, claims, and\ndisputes between and among the Parties.\n2. This Agreement is the result of a compromised settlement of disputed claims and defenses and is not and shall not be construed as an\nadmission or concession of responsibility, liability or any wrongdoing on the part of any Party. To the contrary, the Parties expressly deny any and\nall\nallegations and claims asserted against each other in the Lawsuit.\n3. The Parties specifically disclaim violating any law or committing any unlawful action against each other, and expressly deny any liability,\nresponsibility or obligation to each other with regard to the allegations and claims raised and asserted in the Lawsuit.\nE. Confidentiality.\n1. The terms of this Agreement, the fact that this Agreement has been entered into, and all negotiations leading up to the execution of the\nAgreement, shall be deemed CONFIDENTIAL and shall not be further disclosed to any person or entity except as required by applicable law, rule or\nregulation (including, without limitation, the requirements under any federal or state securities laws, rules or regulations (or any judicial or\nregulatory interpretations thereof) applicable to Synova that may require disclosure of the terms of this Agreement or the fact that this Agreement\nhas been entered into), or with the written consent of the Parties hereto following the execution of\nPage 6\nthis Agreement; provided, however, that nothing in this Agreement shall prevent any Party hereto from disclosing the existence or terms of this\nAgreement in the course of the Parties' normal business affairs, as regarding communications with their accountants, advisors, insurance companies,\nattorneys, and all regulatory agencies/bodies having a bona fide need to know such information, or in any judicial proceeding to enforce or construe\nthis Agreement.\n2.\nFrom and after the date of this Agreement, neither Party shall make any public disparaging statements concerning the officers, directors,\nemployees, attorneys, agents, or of the business or operations, of the other Party. This non-disparagement provision shall not in any way prevent the\nparties from disclosing any information to their attorneys, in response to a lawful subpoena or court order requiring disclosure of information, or in\nconnection with any litigation involving either Party.\nF. Assignment\nThe Parties hereto represent and warrant that they have not assigned nor otherwise transferred or assigned any claims or rights they may have\narising out of or relating in any way to the claims in the Lawsuit, the Distribution Agreement, the Loan and Credit Agreement, and/or the Stock\nPurchase Agreement.\nG. Further Assurances\nRadiant agrees that it will (1) promptly execute and deliver to Synova all further documents, agreements and instruments, (2) deliver in writing\ncustomary representations and warranties, and (3) provide Synova with such other documents or information, reasonably requested by Synova\nor\nAllendale (whether in connection with or following the execution of this Agreement).\nPage 7\nH.\nRepresentations and Warranties\n1. The Parties hereto represent and warrant to each other that the execution and delivery of this Agreement have been done freely and\nvoluntarily and, to the extent necessary, have been duly and validly authorized and approved as need be, and that no further action is necessary to\nmake this Agreement valid and binding on each of the Parties hereto.\n2. The Parties hereto further represent and warrant to each other that:\na. Each Party has participated in the drafting of this Agreement after consulting with counsel;\nb. This Agreement was reviewed and approved by counsel for all Parties and that no Party shall maintain that the language of the\nAgreement should be construed against any other Party by virtue of that Party's putative role as drafter;\nC. No representations, warranties or promises have been made or relied upon by any of the Parties other than as expressly set forth\nherein;\nd. They have read this Agreement;\ne. They have not been coerced into signing this Agreement;\nf. They have the full and express authority to execute it on behalf of each Party on whose behalf they have signed; and\ng. They understand its contents and are executing it freely and voluntarily with an intent to bind their respective Parties to its terms.\nI.\nEntire Agreement\n1. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior written or\noral agreements, understandings, and negotiations.\nPage 8\n2.\nThis Agreement may be modified only by a written amendment signed by the Parties, and no waiver of any provision of this Agreement\nor\nthe breach thereof shall be effective unless expressed in a writing signed by the waiving Party. The waiver by any Party hereto of any of the\nprovisions of this Agreement or the breach thereof shall not operate or be construed as a waiver of any subsequent or other breach.\nJ.\nGoverning Law\nThis Agreement shall be interpreted, enforced, and governed under the laws of New Jersey.\nK. Severability\nIf any provision of this Agreement is declared or determined by any court to be illegal or invalid, that part shall be excluded from the\nAgreement, but the validity of the remaining parts, terms, or provisions shall not be affected.\nL. Headings\nHeadings contained herein are for purposes of organization only, and shall not constitute a part of this Agreement.\n[signatures appear on following page]\nPage 9\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on their behalf by the signatures of their duly authorized\nrepresentatives below.\nALLENDALE PHAMACUETICALS, INC.\nRADIANT TECHNOLOGIES, INC.\nBY:\n/s/ Robert L. Edwards\nBY:\n/s/ Mitch Gray\nDated: May 31, 2007\nDated: May 31, 2007\nTODAY'S WOMENCARE COMPANY\nPATHFINDER MANAGEMENT, INC.\nBY:\n/s/ Robert L. Edwards\nBY:\n/s/ Mitch Gray\nDated: May 31, 2007\nDated: May 31, 2007\nSYNOVA HEALTHCARE GROUP, INC.\nBY:\n/s/ Robert L. Edwards\nDated: May 31, 2007\nPage 10	EX-10.2 3 dex102.htm CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nExhibit 10.2\nCONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nThis Confidential Settlement Agreement and Mutual General Release (“Agreement”), dated this 31st day of May, 2007, is made and entered\ninto by and between PLAINTIFF/COUNTER-DEFENDANT ALLENDALE PHARMACEUTICALS, INC. (“Allendale”), THIRD-PARTY\nDEFENDANT TODAY’S WOMENCARE COMPANY, and DEFENDANT/COUNTER-CLAIMANT RADIANT TECHNOLOGIES, INC.\n(“Radiant”).\nI. DEFINITIONS\nThe following terms as used in this Agreement shall be defined as set forth below:\n1. All references to “Allendale” shall refer to Plaintiff/Counter-Defendant Allendale Pharmaceuticals, Inc., its predecessors, successors,\nparents, subsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives\nincluding, but not limited to, Today’s WomenCare Company and Synova Healthcare Group, Inc. (“Synova”).\n2. All references to “Radiant” shall refer to Defendant/Counter-Claimant Radiant Technologies, Inc., its predecessors, successors, parents,\nsubsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives including, but\nnot limited to, Pathfinder Management, Inc.\n3. All references to “Party” or “Parties” shall refer to “Allendale” and “Radiant” as defined above.\nPage 1\n4. All references to the “Lawsuit” shall refer to the matter captioned Allendale Pharmaceuticals, Inc. v. Radiant Technologies, Inc., et al.,\nbearing Docket No. 06 CV 3465, filed in the United States District Court for the Southern District of New York.\nII. RECITALS\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Exclusive Distribution and Services Agreement”\n(the “Distribution Agreement”); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Loan and Credit Agreement” (the “Loan and\nCredit Agreement”); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Common Stock Purchase Agreement” (“Stock\nPurchase Agreement”); and\nWHEREAS Allendale filed the Lawsuit against Radiant on May 5, 2006 asserting a breach of contract claim (Count I), a breach of the\nCovenant of Good Faith and Fair Dealing claim (Count II), and a claim for Declaratory Judgment (Count III); and\nWHEREAS Radiant filed an Answer, Counterclaim, and Third-Party Complaint to the Lawsuit on July 24, 2006 asserting in its Counterclaim\na breach of contract claim (Count I), a claim for Declaratory Judgment (Count II), and a claim for breach of the Loan and Credit Agreement (Count\nIII); and\nWHEREAS Allendale filed an Answer to Radiant’s Counterclaim and Third-Party Complaint on August 14, 2006; and\nWHEREAS on January 12, 2007, Synova acquired Allendale by merger; and\nWHEREAS the Parties have agreed to amicably resolve all their differences arising from and related to the Lawsuit.\nPage 2\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and in\nconsideration of the foregoing recitals and of the mutual covenants and agreements contained herein, and intending to be legally bound, the Parties\ndo hereby covenant and agree as follows:\nIII. AGREEMENT TERMS\nA. Payment of Settlement Amount, Transfer of Stock and Assignment/Conveyance of Accounts Receivable\n1. Subject to the other conditions and limitations contained herein, Synova, on behalf of Allendale, shall cause to be transferred to Radiant one\nmillion (1,000,000) shares of Synova common stock, which transfer of stock shall occur within ten (10) business days of the execution of this\nAgreement. The parties acknowledge that Radiant’s has the right to receive 145,422 shares of Synova common stock in conjunction with the\nJanuary 12, 2007 merger of Allendale with and into a wholly owned subsidiary of Synova, and further acknowledge that nothing in this Agreement\nshall have any affect on Radiant’s said current stock ownership.\n2. Allendale shall pay Radiant the sum of $100,000.00 (“Settlement Payment Amount”). Said Settlement Payment Amount in the form of a\ncheck made payable to “Radiant Technologies, Inc.” shall be forwarded to Radiant upon the execution of this Agreement.\n3. Radiant shall transfer, assign and/or convey to Synova, together with all rights to Today® Product returns authorized by Radiant or Allendale\nor both, all accounts receivable with retailers associated with the sale of said Products outstanding as of April 25, 2007, which accounts receivable\ntotaled approximately $779,000 pursuant to Radiant’s books. Radiant shall provide Synova with written proof and\nPage 3\nconfirmation of the transfer, assignment and/or conveyance of said outstanding accounts receivable, in whatever form is acceptable to the respective\nretailers, within ten (10) days of the execution of this Agreement, or as soon thereafter as is reasonable based upon delays caused by the retailer\naccounts. Further, within three (3) days of collecting any monies involving the outstanding accounts receivable described in this Paragraph 3,\nRadiant shall promptly transfer said monies to Synova.\n4. Allendale agrees to indemnify and hold harmless Radiant for any claims brought by retail customers for product liability, product defects,\nrecalls, retailer credits, or allowances for returns or in store promotions, or any other claims or charges asserted by retail customers in connection\nwith those accounts being transferred, assigned and/or conveyed to Allendale by Radiant pursuant to this Agreement, but only to the extent such\nclaims are not covered by the Parties’ insurance policies. Further, it is agreed that Allendale has no obligation to indemnify and hold harmless\nRadiant as to any claims that result or arise from Radiant’s own negligence or reckless or willful misconduct, nor from any such claims that Radiant\nhas or should have knowledge of at the time this Agreement is executed. Radiant acknowledges that it is not aware of any such claims having been\nasserted, or made or otherwise existing as of the date this Agreement is being executed. Allendale shall name Radiant as an additional named insured\non its products liability policy covering the sale of Allendale products. Allendale acknowledges that, in reliance on this representation by Allendale,\nRadiant is discontinuing all products liability insurance coverage pertaining to the sale of Allendale products.\nPage 4\nB. Parties’ Mutual Release of Claims\nIn consideration of the above, the Parties hereby FULLY, COMPLETELY AND FOREVER RELEASE AND DISCHARGE each other and\neach of their past, present and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives,\nagents, servants, attorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, of and from any\nand all past, present and future claims, actions, causes of action, suits, debts, dues, sums of money, attorneys’ fees, accounts, reckonings, bonds,\nbills, specialties, covenants, contracts, appraisal rights, controversies, judgments, extends, executions, liabilities, demands or obligations of any kind\nwhatsoever, whether in law or equity, which they ever had, now have or hereafter can, shall or may have against each other and each of their past,\npresent and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives, agents, servants,\nattorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, for, upon or by reason of any\nmatter, cause or thing whatsoever, whether now known or unknown, fixed or unliquidated, conditional or contingent, which currently exists or\nsubsequently accrues with respect to any and all claims including, but not limited to, those claims relating to or arising out of the Distribution\nAgreement, the Loan and Credit Agreement and the Stock Purchase Agreement as well as all other claims that were brought or could have been\nbrought in the Lawsuit.\nC. Dismissal With Prejudice\nFor and in consideration of the promises and consideration described in this Agreement, and as a material inducement to the Parties to enter\ninto this Agreement, the Parties willingly and knowingly agree to execute and file with the Court a Stipulation of Dismissal with Prejudice as to any\nand all claims raised in the Lawsuit.\nPage 5\nD. No Admission of Liability\n1. The purpose of this Agreement is to resolve fully, completely and finally all past, present and future matters, controversies, claims, and\ndisputes between and among the Parties.\n2. This Agreement is the result of a compromised settlement of disputed claims and defenses and is not and shall not be construed as an\nadmission or concession of responsibility, liability or any wrongdoing on the part of any Party. To the contrary, the Parties expressly deny any and all\nallegations and claims asserted against each other in the Lawsuit.\n3. The Parties specifically disclaim violating any law or committing any unlawful action against each other, and expressly deny any liability,\nresponsibility or obligation to each other with regard to the allegations and claims raised and asserted in the Lawsuit.\nE. Confidentiality\n1. The terms of this Agreement, the fact that this Agreement has been entered into, and all negotiations leading up to the execution of the\nAgreement, shall be deemed CONFIDENTIAL and shall not be further disclosed to any person or entity except as required by applicable law, rule or\nregulation (including, without limitation, the requirements under any federal or state securities laws, rules or regulations (or any judicial or\nregulatory interpretations thereof) applicable to Synova that may require disclosure of the terms of this Agreement or the fact that this Agreement\nhas been entered into), or with the written consent of the Parties hereto following the execution of\nPage 6\nthis Agreement; provided, however, that nothing in this Agreement shall prevent any Party hereto from disclosing the existence or terms of this\nAgreement in the course of the Parties’ normal business affairs, as regarding communications with their accountants, advisors, insurance companies,\nattorneys, and all regulatory agencies/bodies having a bona fide need to know such information, or in any judicial proceeding to enforce or construe\nthis Agreement.\n2. From and after the date of this Agreement, neither Party shall make any public disparaging statements concerning the officers, directors,\nemployees, attorneys, agents, or of the business or operations, of the other Party. This non-disparagement provision shall not in any way prevent the\nparties from disclosing any information to their attorneys, in response to a lawful subpoena or court order requiring disclosure of information, or in\nconnection with any litigation involving either Party.\nF. Assignment\nThe Parties hereto represent and warrant that they have not assigned nor otherwise transferred or assigned any claims or rights they may have\narising out of or relating in any way to the claims in the Lawsuit, the Distribution Agreement, the Loan and Credit Agreement, and/or the Stock\nPurchase Agreement.\nG. Further Assurances\nRadiant agrees that it will (1) promptly execute and deliver to Synova all further documents, agreements and instruments, (2) deliver in writing\ncustomary representations and warranties, and (3) provide Synova with such other documents or information, reasonably requested by Synova or\nAllendale (whether in connection with or following the execution of this Agreement).\nPage 7\nH. Representations and Warranties\n1. The Parties hereto represent and warrant to each other that the execution and delivery of this Agreement have been done freely and\nvoluntarily and, to the extent necessary, have been duly and validly authorized and approved as need be, and that no further action is necessary to\nmake this Agreement valid and binding on each of the Parties hereto.\n2. The Parties hereto further represent and warrant to each other that:\na. Each Party has participated in the drafting of this Agreement after consulting with counsel;\nb. This Agreement was reviewed and approved by counsel for all Parties and that no Party shall maintain that the language of the\nAgreement should be construed against any other Party by virtue of that Party’s putative role as drafter;\nc. No representations, warranties or promises have been made or relied upon by any of the Parties other than as expressly set forth\nherein;\nd. They have read this Agreement;\ne. They have not been coerced into signing this Agreement;\nf. They have the full and express authority to execute it on behalf of each Party on whose behalf they have signed; and\ng. They understand its contents and are executing it freely and voluntarily with an intent to bind their respective Parties to its terms.\nI. Entire Agreement\n1. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior written or\noral agreements, understandings, and negotiations.\nPage 8\n2. This Agreement may be modified only by a written amendment signed by the Parties, and no waiver of any provision of this Agreement or\nthe breach thereof shall be effective unless expressed in a writing signed by the waiving Party. The waiver by any Party hereto of any of the\nprovisions of this Agreement or the breach thereof shall not operate or be construed as a waiver of any subsequent or other breach.\nJ. Governing Law\nThis Agreement shall be interpreted, enforced, and governed under the laws of New Jersey.\nK. Severability\nIf any provision of this Agreement is declared or determined by any court to be illegal or invalid, that part shall be excluded from the\nAgreement, but the validity of the remaining parts, terms, or provisions shall not be affected.\nL. Headings\nHeadings contained herein are for purposes of organization only, and shall not constitute a part of this Agreement.\n[signatures appear on following page]\nPage 9\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on their behalf by the signatures of their duly authorized\nrepresentatives below.\nALLENDALE PHAMACUETICALS, INC.\nRADIANT TECHNOLOGIES, INC.\nBY: /s/ Robert L. Edwards\nBY: /s/ Mitch Gray\nDated: May 31, 2007\nDated: May 31, 2007\nTODAY’S WOMENCARE COMPANY\nPATHFINDER MANAGEMENT, INC.\nBY: /s/ Robert L. Edwards\nBY: /s/ Mitch Gray\nDated: May 31, 2007\nDated: May 31, 2007\nSYNOVA HEALTHCARE GROUP, INC.\nBY: /s/ Robert L. Edwards\nDated: May 31, 2007\nPage 10
b77f708578a647ba3da13feac42d65fc.pdf	effective_date jurisdiction party term	EX-10.8 3 d62023dex108.htm FORM OF PATENT AND CONFIDENTIALITY AGREEMENT\nExhibit 10.8\nINTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nThis INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT (the “Agreement”), effective as of\n,\n201 , is made by and between FARO Technologies, Inc., a Florida Corporation, including its subsidiaries and affiliates (hereinafter collectively\n“FARO” or “Employer”), and\n(“Employee”).\nIn consideration of the Employee’s employment by FARO, the compensation paid and to be paid to Employee by FARO, and\nEmployer’s agreement to provide Employee access to Employer ’s Confidential Information (as defined below) and Trade Secrets (as defined\nbelow and as defined under Florida law) and other good and valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, Employee hereby warrants and agrees to be legally bound as follows:\n1. Definitions\na. “Business” means (1) all aspects related to 3-D measurement, imaging or realization systems, including but not limited\nto the design, development, manufacture, marketing, sale, offer for sale and support of such 3-D measurement, imaging or realization\nsystems, and (2) any other technology, product, process, apparatus, service, research or development on which Employee worked or\nhad access to Confidential Information while employed by FARO.\nb. “Confidential Information” shall mean information, other than Trade Secrets, which relates to Employer, Employer ’s\nactivities, Employer’s business or Employer ’s suppliers or customers that is not generally known by persons not employed by\nEmployer, and which is or has been disclosed to Employee or of which Employee became aware as a consequence of or through his\nor her relationship to Employer. This includes but is not limited to FARO’s know-how; accounts; pricing and cost information;\nmarketing techniques and plans; computer programs and software; coding systems and processes; computer networking concepts and\nprocesses; source code; contract terms and prospective contract terms with existing and prospective customers, accounts and other\npersons or entities with whom FARO has or contemplates a business relationship; actual or potential customers and purchasers;\nconfidential information of any customer; products; product designs; design documentation; formulas; concepts; inventions; research;\nmethods; processes; operations; product uses; product quality analysis; and other information related to the Business that is not\ngenerally publicly known. “Confidential Information” shall not include information that has become generally available to the public\nby the act of one who has the right to disclose such information without violating any legal right or privilege of Employer.\nc. “Customer” means any individual or entity to whom Employer has sold products or services related to the Business, and\nwith whom Employee had contact, alone or in conjunction with others, on behalf of Employer during the twelve (12) months\nimmediately prior to the termination of his or her employment.\nd. “Prospective Customer” means any individual or entity who is not a Customer, to whom Employer has marketed or\npresented products or services related to the Business, and with whom Employee had contact, alone or in conjunction with others, on\nbehalf of Employer during the twelve (12) months immediately prior to the termination of his or her employment.\ne. “Trade Secrets” shall mean all information, without regard to form, including, but not limited to, technical or\nnontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data,\nfinancial plans, product plans, distribution lists or a list of actual or potential customers, advertisers or suppliers which is not\ncommonly known by or available to the public and which information: (A) derives economic value, actual or potential, from not\nbeing generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value\nfrom its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Without\nlimiting the foregoing, Trade Secrets include any documents or information that constitute a “trade secret(s)” under the common law\nor statutory law of the State of Florida and generally includes all source codes and object codes for Employer software, all buyer and\nseller information and all lists of clients or suppliers to the extent that such information fits within the Florida Trade Secrets Act.\nNothing in this Agreement is intended, or shall be construed, to limit the definitions or protections of the Florida Trade Secrets Act or\nany other applicable law protecting trade secrets or other confidential information. Trade Secrets shall not include information that\nhas become generally available to the public by the act of one who has the right to disclose such information without violating any\nlegal right or privilege of Employer.\n2. Acknowledgement of FARO’s Right To Protection of Business Interests. Employee acknowledges and agrees that this Agreement,\nincluding but not limited to the covenants not to compete contained herein, are necessary to allow FARO to protect its legitimate\nbusiness interests, including but not limited to its Confidential Information and customer goodwill. Accordingly, Employee agrees\nthat this Agreement, including but not limited to the covenants not to compete contained herein, are reasonable and necessary to\nallow FARO to protect its legitimate business interests.\nPage 1\n3. Confidentiality Restriction.\na. Nature and Restriction. Employee covenants and agrees that: (i) during his or her employment with Employer he or\nshe will not use or disclose any Trade Secrets or Confidential Information of Employer other than as necessary in connection with the\nperformance of his or her duties for Employer, and (ii) for a period of five (5) years immediately following the termination of his or\nher employment with Employer, Employee shall not, directly or indirectly, intentionally, or negligently, in any fashion, form, or\nmanner, transmit, divulge, communicate, or disclose any Trade Secrets or Confidential Information of Employer to any person and\nshall not make use of any such Trade Secrets or Confidential Information, directly or indirectly, for himself or herself or others,\nwithout the prior written consent of Employer, except for a disclosure that is required by any law or order, in which case Employee\nshall provide Employer prior written notice of such requirement and an opportunity to contest such disclosure. However, to the extent\nthat such information is a “trade secret” as that term is defined under a state or federal law, this subparagraph is not intended to, and\ndoes not, limit Employer ’s rights or remedies thereunder, and the time period for prohibition on disclosure or use of such information\nis until such information becomes generally known to the public through the act of one who has the right to disclose such information\nwithout violating any legal right or privilege of Employer. Notwithstanding anything herein to the contrary, nothing in this agreement\nshall (i) prohibit Employee from making reports of possible violations of federal law or regulation to any governmental agency or\nentity in accordance with the provisions of an d rules promulgated under Section 21F of the Securities Exchange Act of 1934 or\nSection 806 of the Sarbanes-Oxley Act of 2002, or of any other whistleblower protection provisions of state or federal law or\nregulation, or (ii) require notification or pr ior approval by Employer of any reporting described in clause (i).\nb. Prior Confidentiality Restrictions. Employee covenants and agrees that Employee will not disclose to FARO or\notherwise use in the course of employment with FARO any confidential or trade secret information that is subject to a ny agreements\nto which Employee is bound that arose prior to employment with FARO.\nc. Return of Information. Employee agrees that he or she shall return to Employer ’s offices in Lake Mary, Florida, all\nTrade Secrets, Confidential Information, documents, and other property of Employer immediately upon the termination of his or her\nemployment with Employer or upon any earlier request by Employer.\nd. Effect of Disclosure. Employee acknowledges that any disclosure to any third party of Trade Secrets or Confidential\nInformation not expressly allowed by this Agreement is detrimental to the Employer. In the event that any Trade Secret or\nConfidential Information is disclosed by Employee in violation of this Agreement, Employee shall be immediately, directly, and\nprincipally liable, with no limitation, for any and all costs, claims and damages (including, but not limited to, special, indirect,\nincidental and consequential damages, and reasonable attorneys’ fees and costs of litigation) sustained by Employer as a result of\nsuch disclosure.\ne. Consideration For Disclosure of Trade Secrets and Confidential Information. Employee understands and agrees\nthat he or she has entered into this Agreement and, if applicable, the Non-Competition and Non-Solicitation Addendum referenced in\nthis Agreement, in consideration for and as a condition of Employer ’s agreement to provide Employee access to Employer’s\nConfidential Information and Trade Secrets.\n4. Assignment of Work Product; Disclosure; Confidentiality.\na. If at any time or times during Employee’s employment with FARO, Employee shall (either alone or with others) make,\nconceive, create, discover or reduce to practice any invention, idea, product, process, formula, method, plans, modification,\ndiscovery, design, development, improvement, process, software program, work of authorship, documentation, formula, data,\ntechnique, know-how, trade secret or intellectual property right whatsoever or any interest therein (whether or not patentable or\nregistrable under copyright, trademark or similar statutes or subject to analogous protection) that ( i) relates to the Business of FARO,\n(ii) results from tasks assigned to the Employee by FARO or (iii) results from the use of premises or personal property (whether\ntangible or intangible) owned, leased or contracted for by FARO (herein called “Work Product”), such Work Product and the benefits\nthereof shall immediately become the sole and absolute property of FARO and its successors and assigns.\nb. Without further consideration, upon the earlier of the making, conception, creation, discovery or reduction to practice of\nsuch Work Product, whether solely or jointly with others, Employee gives, transfers and hereby assigns to Employer (or to any agent,\nnominee or assignee, as requested by Employer) Employee’s right, title and interest to all such Work Product and all intellectual\nproperty rights related thereto.\nc. Employee agrees to fully disclose exclusively to Employer all Work Product. All disclosures of Work Product are to be\nmade in writing and promptly after the earlier of the making, conception, creation, discovery or reduction topractice of such Work\nProduct. For the avoidance of doubt, Employer shall own all Work Product regardless of whether Employee actually discloses such\nWork Product to Employer.\nPage 2\nd. During the period of Employee’s employment with Employer and at all times after the termination thereof, Employee\nagrees to provide all reasonably necessary assistance to Employer (including but not limited to testifying in any proceedings or suit,\nand executing any and all applications, assignments, or other documents or instruments): (1) in connection with Employer seeking to\nprotect any Work Product, including but not limited to the preparation, filing and/or prosecution of any patent applications,\ntrademarks or trade names or copyrights in the United States and any foreign country (as well as any state or other subdivision\nthereof); and the assertion of any such patents, trademarks, trade names or copyrights against a third party; and/or (2) to vest\nEmployer (and its successors and assigns) with all right, title and interest in the Work Product. Should Employee fail or refuse to\nprovide such assistance and/or execute any such document, Employee hereby irrevocably appoints Employer as its attorney-in-fact to\nprepare and/or execute such documents in the name of Employee and on his/her behalf, and to institute and prosecute any\nproceedings as FARO may deem necessary or appropriate to secure, protect, or enforce the Work Product.\ne. Employee represents and warrants that there are no ideas, products, formulas, methods, plans, developments,\nimprovements or patentable inventions in any way related to the Business which Employee desires to exclude from the operation of\nthis Agreement, except those, if any, designated by a patent number, application serial number or brief description where no\napplication has been filed, on the list attached hereto as Exhibit A and signed by Employee and Employer.\nf. Employer allows certain of its employees to have access to the following on-line services: Microsoft Exchange, all\nFARO servers, and the Internet. Employee shall use such services in connection with the Business and in accordance with FARO\npolicies and procedures, as they may change from time to time, which limit use of such services for personal reasons or other\npurposes not related to the Business. Furthermore, Employee is advised that under certain circumstances transmission of data or\nmessages on the Internet or through Internet e-mail is not secure and that the transmission of Confidential Information on the Internet\nor through Internet e-mail must comply with Employer-established appropriate safeguards against the interception or misdelivery of\nsuch information including, but not limited to the establishment of firewalls, encryption methods, or other technology that will\nprevent the unintended interception of data transmission by third parties on the Internet or any other on-line service.\ng. The foregoing obligations of confidentiality shall cease to apply to such parts of the Confidential Information if the\ninformation becomes general public knowledge through no fault of Employee or if Employee has the prior written permission of\nFARO.\nh. Upon termination of employment for whatever reason, Employee represents, warrants, covenants and agrees to deliver\nto Employer at Employer ’s offices in Lake Mary, Florida, all Confidential Information (including but not limited to all books,\nrecords, products, formulas, manuals, letters, notes, memoranda, notebooks, sketches, drawings, plans, equipment, computer files and\nspreadsheets, and all other documents or materials that comprise Confidential Information, and also all copies of any of the\nforegoing), which are in Employee’s or his agents’ or affiliates’ possession or control, and Employee specifically agrees that\nEmployee shall not retain any copies or reproductions of such Confidential Information.\n5. Non-Competition and Non-Solicitation. If a “Non-Competition and Non-Solicitation Agreement” is attached hereto, the Employee\nagrees to the terms thereof, and such Non-Competition and Non-Solicitation Agreement is hereby incorporated into and made part of\nthis Agreement.\nSuch Addendum is\nis not\nattached.\n6. Remedies: The failure of the Employee to comply with the terms of this Agreement shall be cause for immediate dismissal from\nemployment, and in addition Employer shall have the following remedies:\na. Indemnification. Employee hereby agrees to indemnify the Employer in respect of any and all claims, losses, costs,\nliabilities and expenses (including reasonable attorneys’ and legal assistants’ fees) directly or indirectly resulting from or arising out\nof any breach of this Agreement, including for appeals.\nb. Injunctive Relief. Employee admits and agrees that Employee’s breach of the Agreement, including the confidentiality\nrestrictions and, if applicable, the non-compete and non-solicitation restrictions would result in irreparable harm to Employer, and\nthat Employer ’s remedy at law for such a breach will be inadequate. Accordingly, it is agreed that Employer shall be entitled, upon\napplication to a court of competent jurisdiction, to obtain injunctive relief to enforce the provisions of this Agreement, which\ninjunctive relief shall be in addition to any other rights or remedies available to Employer. In any action or\nPage 3\nproceeding by Employer to obtain a temporary restraining order and/or preliminary injunction, Employee hereby agrees to waive the\nnecessity of the Employer’s posting an injunction bond in order to obtain the temporary restraining order and/or prelimin ary\ninjunction. Employee also agrees that he or she shall be responsible for all damages incurred by Employer due to any breach of the\nrestrictive covenants contained in this Agreement. If Employer ’s action for a temporary restraining order and/or motion for\npreliminary injunction is granted in whole or in part and Employer is ultimately unsuccessful in obtaining a permanent injunction to\nenforce the covenant, Employee hereby waives any and all rights he or she may have against the Employer for any injuries or\ndamages, including consequential damages, sustained by Employee and arising directly or indirectly from the issuance of the\ntemporary restraining order and/or preliminary injunction.\nc. Other Remedies. In addition to injunctive relief, FARO shall be entitled to any other remedy available in law or equity\nby reason of Employee’s breach or threatened breach of the restrictions contained herein.\nd. Recovery of Attorneys’ Fees and Costs. If Employer engages the services of an attorney or any other third party or in\nany way initiates legal action to enforce its rights under this Agreement and Employer prevails in its legal action, Employee agrees to\npay to the Employer all costs and expenses incurred by Employer relating to the enforcement of this Agreement (including reasonable\nattorneys’ and legal assistants’ fees before, at, and after trial and in appellate, bankruptcy and probate proceedings).\n7. Governing Law. This Agreement shall be governed by and construed according to the laws of the State of Florida, without regard to\nits conflicts of law principles.\n8. Venue and Forum Selection Clause; Consent to Jurisdiction. Any action at law, suit in equity, or other judicial proceeding arising\nout of or related to this Agreement shall be instituted and maintained in the Courts in and for Orange County, Florida. Each party\nwaives the right to change venue. Employee agrees to exclusively submit to personal jurisdiction in the federal and state courts in or\nfor Orange County, Florida and no other place. Employee agrees that any action at law, suit in equity, or other judicial proceeding to\nenforce this Agreement, as well as any action at law, suit in equity, or other judicial proceeding relating to or arising out of this\nAgreement, shall be filed only in: (a) the United States District Court for the Middle District of Florida, Orlando Division; or (b) the\nBusiness Court of the Ninth Judicial Circuit Court of Orange County, Florida. With respect to any such court action, Employee\nhereby (a) irrevocably submits to the personal jurisdiction of such courts; (b) consents to service of process; (c) consents to venue;\nand (d) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction,\nservice of process, or venue. Both parties hereto further agree that the Business Court of the Ninth Judicial Circuit Court of Orange\nCounty, Florida and the United States District Court for the Middle District of Florida, Orlando Division, are convenient forums for\nany dispute that may arise herefrom and that neither party shall raise as a defense that such courts are not convenient forums.\n9. Assignment of Rights. FARO has the right to assign or transfer this Agreement, including any of its rights hereunder to any assignee\nor successor of FARO, which assignee or successor is then expressly authorized to enforce the terms of this Agreement. This\nAgreement is personal to the Employee and not assignable or transferable by Employee and any attempt to do so shall be void.\n10. Modification. This Agreement contains the entire Agreement of the parties concerning the subject matter hereof. This Agreement\nshall not be amended except by a writing signed by both FARO and Employee.\n11. Waiver. No delay or failure by Employer in exercising any of its rights, remedies, powers, or privileges hereunder, at law or in\nequity, and no course of dealing between Employer and Employee or any other person shall be deemed to be a waiver by Employer of\nany such rights, remedies, powers, or privileges, even if such delay or failure is continuo us or repeated, nor shall any single or partial\nexercise of any right, remedy, power, or privilege preclude any other or further exercise thereof by Employer or the exercise of any\nother right, remedy, power, or privilege by Employer.\n12. Effect of Prior Agreements. Except as otherwise provided in this Section, this Agreement, including the exhibits hereto, embodies\nthe entire agreement and understanding of Employer and Employee in respect of the matters set forth herein and supersedes all prior\nagreements, representations, warranties, promises, covenants, arrangements, communications and understandings, oral or written,\nexpress or implied, between the parties with respect to such transactions. If this Agreement is held to be void or unenforceable for\nany reason, then the terms and provisions of any prior version of this “Intellectual Property and Confidentiality Agreement”\n(including any Non-Competition and Non-Solicitation Addendum) signed by Employee shall remain in full force and effect.\n13. Construction. The parties intend that this Agreement provides FARO with the maximum protection allowed by law. Accordingly, if a\ncourt determines that any restrictions of this Agreement are unenforceable because they are overly broad or\nPage 4\nnot reasonably necessary to protect FARO’s legitimate business interests, the parties agree that the Court should interpret and enforce\nsuch restrictions in the manner necessary to provide FARO with the maximum protection allowed by law. The covenants set forth in\nthis Agreement shall be considered and construed as separate and independent covenants. The existence of any claim or cause of\naction against of the Employee against Employer shall not constitute a defense to enforcement by Employer of any of the terms and\nconditions of this Agreement. Should any part or provision of any covenant be held invalid, void or unenforceable in any court of\ncompetent jurisdiction, such invalidity, voidness or unenforceability shall not render invalid, void or unenforceable any other part or\nprovision of this Agreement.\n14. Miscellaneous. When used herein, one gender means any gender. The term “I”, “me” or “mine” means the Employee. Any use of the\nsingular shall include plural and vice versa. Use of the word “shall” means such action is mandatory. The title of this Agreement and\nthe paragraph headings are used for the purpose of convenience only and shall not be used to interpret or explain any portion of the\ntext hereof.\n15. At-Will Employment. Notwithstanding anything to the contrary, Employee shall at all times be an employee-at-will. This\nAgreement is not intended to create a contract of employment between FARO and Employee. FARO maintains its policy of\nemployment-at-will.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 5\nNON-COMPETITION AND NON-SOLICITATION ADDENDUM\nTO INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nEmployee hereby further covenants and agrees to the following:\nA. Acknowledgment.\nEmployee acknowledges and agrees that, solely as a result of Employee’s employment with FARO and over the course of Employee’s\nemployment with FARO, Employee will: (1) be provided with special, unique, and extraordinary training, education and experience related to the\nBusiness; (2) be exposed to and/or in a position to generate Confidential Information of FARO; and (3) as a Sales Employee (as defined below),\ngenerate customer goodwill on behalf of FARO. Employee further acknowledges and agrees that FARO makes use of its Confidential\nInformation throughout the world and invests significant time and money, including Employee’s salary, to provide Employee with such special,\nunique, and extraordinary training, education and experience related to the Business and to generate customer goodwill on behalf of FARO, all of\nwhich are legitimate business interests of FARO. Employee further acknowledges and agrees that the restrictions in this Addendum are\nreasonable and necessary to allow FARO to protect its legitimate business interests. In consideration of the foregoing and of the benefits\ngenerally provided to the Employee by Employer, and in connection with FARO’s protection of its legitimate business interests, Employee agrees\nto abide and be bound by the restrictions of this Addendum, which restrictions are intended by the parties to extend to any and all activities of the\nEmployee, whether as an independent contractor, partner or joint venturer, or as an officer, director, stockholder, agent, employee or salesman for\nany person, firm, partnership, corporation or other entity, or otherwise.\nB. Additional Definitions.\n“FARO Competitor” means (i) any business or enterprise that provides goods and/or services similar to or competitive with FARO (each such\nbusiness or enterprise, a “Competitor”), including, without limitation, those persons or entities identified on Schedule 1 as current competitors of\nFARO as of the date hereof or (ii) any of such Competitor’s subsidiaries, affiliates, agents or distributors, irrespective or whether the subsidiary,\naffiliate, agent or distributor itself provides goods and/or services similar to or competitive with FARO. As used in this definition, “affiliate”\nincludes any entity, business or enterprise that, directly or indirectly, controls a Competitor or is under common control through another person or\nentity with a Competitor. The terms “controls,” “controlled by,” and “under common control” mean, when used with respect to any specified\nlegal entity, the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting\nsecurities, by contract or otherwise.\n“Restricted Period” means the term of Employee’s employment with FARO and for a period of twenty-four months after the date Employee’s\nemployment with FARO is terminated for any reason.\n“Sales Employee” means any Employee that deals with Customers and Prospective Customers with the intention of producing sales and\nrepresents FARO with respect to such Customers and Prospective Customers within a designated geographic territory.\nC. Non-Competition.\nIn order to protect FARO’s Trade Secret and Confidential Information, third-party goodwill and other legitimate business interests,\nEmployee acknowledges and agrees that during the Restricted Period, Employee will not, without FARO’s express written permission, directly or\nindirectly, assist, be employed by, consult with, or provide services to any FARO Competitor. Employee understands and agrees that, during the\nRestricted Period, he is and will be subject to the restrictions set forth in this Paragraph C anywhere within the geographic boundaries of the\ncontinental United States; provided, however, that Sales Employees shall be subject to the restrictions set forth in this Paragraph C during the\nRestricted Period within the geographic territory that the Employee represented for the Employer within the twenty-four (24) months prior to the\ntermination of employment.\nPage 6\nD. Non-Solicitation.\nDuring the Restricted Period, Employee shall not, without the prior written permission of Employer, directly or indirectly, for himself or on\nbehalf of any other person or entity, (i) solicit, call upon, encourage or contact, or attempt to solicit, call upon, encourage or contact any\nCustomer or Prospective Customer of the Employer for purposes of providing products or services competitive with the Business or causing such\nperson or entity to terminate their business relationship with Employer or (ii) accept business from or provide goods or services to any Customer\nor Prospective Customer of the Employer.\nE. Non-Recruitment.\nDuring the Restricted Period, Employee shall not, directly or indirectly, without the prior written permission of Employer, solicit or induce,\nor attempt to solicit or induce, any employee of Employer to terminate his or her relationship with Employer and/or to enter into an employment\nor agency relationship with Employee or with any other person or entity with whom Employee is affiliated, provided that the restriction in this\nsection shall apply only to employees of Employer with whom Employee worked by virtue of and during his or her employment with Employer.\nF. Miscellaneous.\na. The period of time during which Employee is prohibited from engaging in certain business practices under this Addendum shall be\nextended by the length of time during which Employee is in breach of such covenants.\nb. It is understood by and between the parties hereto that the restrictive covenants set forth in this Addendum hereof are essential\nelements of the employment arrangement between Employee and Employer, and that but for such covenants, Employer would not have agreed to\nhire Employee. The existence of any claim or cause of action of the Employee against Employer shall not constitute a defense to the enforcement\nby Employer of such covenants. The restrictive covenants, and rights and protections provided by the restrictive covenants, are assignable by\nEmployer, but not by Employee.\nc. The covenants set forth in this Agreement shall be considered and construed as separate and independent covenants. Should any\npart or provision of any covenant be held invalid, void or unenforceable in any court of competent jurisdiction, such invalidity, voidness or\nunenforceability shall not render invalid, void or unenforceable any other part or provision of this Agreement. If any portion of the foregoing\nprovisions is found to be invalid or unenforceable by a court of competent jurisdiction because its duration, the territory, the definition of\nactivities or the definition of information covered is considered to be invalid or unreasonable in scope, the invalid or unreasonable term shall be\nredefined, or a new enforceable term provided, such that the intent of Employer and Employee in agreeing to the provisions of this Agreement\nwill not be impaired and the provision in question shall be enforceable to the fullest extent of the applicable laws.\nd. Employee shall, no later than the last day of his or her employment, deliver to Employer at its offices in Lake Mary, Florida a\nwritten, signed and notarized confirmation that Employee is aware of his or her obligations under this Non-Competition and Non-Solicitation\nAddendum and that Employee will comply with its terms.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nPage 7\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 8	EX-10.8 3 d62023dex108.htm FORM OF PATENT AND CONFIDENTIALITY AGREEMENT\nExhibit 10.8\nINTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nThis INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT (the “Agreement”), effective as of ,\n201 , is made by and between FARO Technologies, Inc., a Florida Corporation, including its subsidiaries and affiliates (hereinafter collectively\n“FARO” or “Employer”), and (“Employee”).\n \nIn consideration of the Employee’s employment by FARO, the compensation paid and to be paid to Employee by FARO, and\nEmployer’s agreement to provide Employee access to Employer’s Confidential Information (as defined below) and Trade Secrets (as defined\nbelow and as defined under Florida law) and other good and valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, Employee hereby warrants and agrees to be legally bound as follows:\n1. Definitions\na. “Business” means (1) all aspects related to 3-D measurement, imaging or realization systems, including but not limited\nto the design, development, manufacture, marketing, sale, offer for sale and support of such 3-D measurement, imaging or realization\nsystems, and (2) any other technology, product, process, apparatus, service, research or development on which Employee worked or\nhad access to Confidential Information while employed by FARO.\nb. “Confidential Information” shall mean information, other than Trade Secrets, which relates to Employer, Employer’s\nactivities, Employer’s business or Employer’s suppliers or customers that is not generally known by persons not employed by\nEmployer, and which is or has been disclosed to Employee or of which Employee became aware as a consequence of or through his\nor her relationship to Employer. This includes but is not limited to FARO’s know-how; accounts; pricing and cost information;\nmarketing techniques and plans; computer programs and software; coding systems and processes; computer networking concepts and\nprocesses; source code; contract terms and prospective contract terms with existing and prospective customers, accounts and other\npersons or entities with whom FARO has or contemplates a business relationship; actual or potential customers and purchasers;\nconfidential information of any customer; products; product designs; design documentation; formulas; concepts; inventions; research;\nmethods; processes; operations; product uses; product quality analysis; and other information related to the Business that is not\ngenerally publicly known. “Confidential Information” shall not include information that has become generally available to the public\nby the act of one who has the right to disclose such information without violating any legal right or privilege of Employer.\nc. “Customer” means any individual or entity to whom Employer has sold products or services related to the Business, and\nwith whom Employee had contact, alone or in conjunction with others, on behalf of Employer during the twelve (12) months\nimmediately prior to the termination of his or her employment.\nd. “Prospective Customer” means any individual or entity who is not a Customer, to whom Employer has marketed or\npresented products or services related to the Business, and with whom Employee had contact, alone or in conjunction with others, on\nbehalf of Employer during the twelve (12) months immediately prior to the termination of his or her employment.\ne. “Trade Secrets” shall mean all information, without regard to form, including, but not limited to, technical or\nnontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data,\nfinancial plans, product plans, distribution lists or a list of actual or potential customers, advertisers or suppliers which is not\ncommonly known by or available to the public and which information: (A) derives economic value, actual or potential, from not\nbeing generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value\nfrom its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Without\nlimiting the foregoing, Trade Secrets include any documents or information that constitute a “trade secret(s)” under the common law\nor statutory law of the State of Florida and generally includes all source codes and object codes for Employer software, all buyer and\nseller information and all lists of clients or suppliers to the extent that such information fits within the Florida Trade Secrets Act.\nNothing in this Agreement is intended, or shall be construed, to limit the definitions or protections of the Florida Trade Secrets Act or\nany other applicable law protecting trade secrets or other confidential information. Trade Secrets shall not include information that\nhas become generally available to the public by the act of one who has the right to disclose such information without violating any\nlegal right or privilege of Employer.\n2. Acknowledgement of FARO’s Right To Protection of Business Interests. Employee acknowledges and agrees that this Agreement,\nincluding but not limited to the covenants not to compete contained herein, are necessary to allow FARO to protect its legitimate\nbusiness interests, including but not limited to its Confidential Information and customer goodwill. Accordingly, Employee agrees\nthat this Agreement, including but not limited to the covenants not to compete contained herein, are reasonable and necessary to\nallow FARO to protect its legitimate business interests.\nPage 1\nConfidentiality Restriction.\na. Nature and Restriction. Employee covenants and agrees that: (i) during his or her employment with Employer he or\nshe will not use or disclose any Trade Secrets or Confidential Information of Employer other than as necessary in connection with the\nperformance of his or her duties for Employer, and (ii) for a period of five (5) years immediately following the termination of his or\nher employment with Employer, Employee shall not, directly or indirectly, intentionally, or negligently, in any fashion, form, or\nmanner, transmit, divulge, communicate, or disclose any Trade Secrets or Confidential Information of Employer to any person and\nshall not make use of any such Trade Secrets or Confidential Information, directly or indirectly, for himself or herself or others,\nwithout the prior written consent of Employer, except for a disclosure that is required by any law or order, in which case Employee\nshall provide Employer prior written notice of such requirement and an opportunity to contest such disclosure. However, to the extent\nthat such information is a “trade secret” as that term is defined under a state or federal law, this subparagraph is not intended to, and\ndoes not, limit Employer’s rights or remedies thereunder, and the time period for prohibition on disclosure or use of such information\nis until such information becomes generally known to the public through the act of one who has the right to disclose such information\nwithout violating any legal right or privilege of Employer. Notwithstanding anything herein to the contrary, nothing in this agreement\nshall (i) prohibit Employee from making reports of possible violations of federal law or regulation to any governmental agency or\nentity in accordance with the provisions of an d rules promulgated under Section 21F of the Securities Exchange Act of 1934 or\nSection 806 of the Sarbanes-Oxley Act of 2002, or of any other whistleblower protection provisions of state or federal law or\nregulation, or (ii) require notification or pr ior approval by Employer of any reporting described in clause (i).\nb. Prior Confidentiality Restrictions. Employee covenants and agrees that Employee will not disclose to FARO or\notherwise use in the course of employment with FARO any confidential or trade secret information that is subject to a ny agreements\nto which Employee is bound that arose prior to employment with FARO.\nc. Return of Information. Employee agrees that he or she shall return to Employer’s offices in Lake Mary, Florida, all\nTrade Secrets, Confidential Information, documents, and other property of Employer immediately upon the termination of his or her\nemployment with Employer or upon any earlier request by Employer.\nd. Effect of Disclosure. Employee acknowledges that any disclosure to any third party of Trade Secrets or Confidential\nInformation not expressly allowed by this Agreement is detrimental to the Employer. In the event that any Trade Secret or\nConfidential Information is disclosed by Employee in violation of this Agreement, Employee shall be immediately, directly, and\nprincipally liable, with no limitation, for any and all costs, claims and damages (including, but not limited to, special, indirect,\nincidental and consequential damages, and reasonable attorneys’ fees and costs of litigation) sustained by Employer as a result of\nsuch disclosure.\ne. Consideration For Disclosure of Trade Secrets and Confidential Information. Employee understands and agrees\nthat he or she has entered into this Agreement and, if applicable, the Non-Competition and Non-Solicitation Addendum referenced in\nthis Agreement, in consideration for and as a condition of Employer’s agreement to provide Employee access to Employer’s\nConfidential Information and Trade Secrets.\nAssignment of Work Product; Disclosure; Confidentiality.\na. If at any time or times during Employee’s employment with FARO, Employee shall (either alone or with others) make,\nconceive, create, discover or reduce to practice any invention, idea, product, process, formula, method, plans, modification,\ndiscovery, design, development, improvement, process, software program, work of authorship, documentation, formula, data,\ntechnique, know-how, trade secret or intellectual property right whatsoever or any interest therein (whether or not patentable or\nregistrable under copyright, trademark or similar statutes or subject to analogous protection) that ( i) relates to the Business of FARO,\n(ii) results from tasks assigned to the Employee by FARO or (iii) results from the use of premises or personal property (whether\ntangible or intangible) owned, leased or contracted for by FARO (herein called “Work Product”), such Work Product and the benefits\nthereof shall immediately become the sole and absolute property of FARO and its successors and assigns.\nb. Without further consideration, upon the earlier of the making, conception, creation, discovery or reduction to practice of\nsuch Work Product, whether solely or jointly with others, Employee gives, transfers and hereby assigns to Employer (or to any agent,\nnominee or assignee, as requested by Employer) Employee’s right, title and interest to all such Work Product and all intellectual\nproperty rights related thereto.\nc. Employee agrees to fully disclose exclusively to Employer all Work Product. All disclosures of Work Product are to be\nmade in writing and promptly after the earlier of the making, conception, creation, discovery or reduction topractice of such Work\nProduct. For the avoidance of doubt, Employer shall own all Work Product regardless of whether Employee actually discloses such\nWork Product to Employer.\nPage 2\nd. During the period of Employee’s employment with Employer and at all times after the termination thereof, Employee\nagrees to provide all reasonably necessary assistance to Employer (including but not limited to testifying in any proceedings or suit,\nand executing any and all applications, assignments, or other documents or instruments): (1) in connection with Employer seeking to\nprotect any Work Product, including but not limited to the preparation, filing and/or prosecution of any patent applications,\ntrademarks or trade names or copyrights in the United States and any foreign country (as well as any state or other subdivision\nthereof); and the assertion of any such patents, trademarks, trade names or copyrights against a third party; and/or (2) to vest\nEmployer (and its successors and assigns) with all right, title and interest in the Work Product. Should Employee fail or refuse to\nprovide such assistance and/or execute any such document, Employee hereby irrevocably appoints Employer as its attorney-in-fact to\nprepare and/or execute such documents in the name of Employee and on his/her behalf, and to institute and prosecute any\nproceedings as FARO may deem necessary or appropriate to secure, protect, or enforce the Work Product.\ne. Employee represents and warrants that there are no ideas, products, formulas, methods, plans, developments,\nimprovements or patentable inventions in any way related to the Business which Employee desires to exclude from the operation of\nthis Agreement, except those, if any, designated by a patent number, application serial number or brief description where no\napplication has been filed, on the list attached hereto as Exhibit A and signed by Employee and Employer.\nf. Employer allows certain of its employees to have access to the following on-line services: Microsoft Exchange, all\nFARO servers, and the Internet. Employee shall use such services in connection with the Business and in accordance with FARO\npolicies and procedures, as they may change from time to time, which limit use of such services for personal reasons or other\npurposes not related to the Business. Furthermore, Employee is advised that under certain circumstances transmission of data or\nmessages on the Internet or through Internet e-mail is not secure and that the transmission of Confidential Information on the Internet\nor through Internet e-mail must comply with Employer-established appropriate safeguards against the interception or misdelivery of\nsuch information including, but not limited to the establishment of firewalls, encryption methods, or other technology that will\nprevent the unintended interception of data transmission by third parties on the Internet or any other on-line service.\ng. The foregoing obligations of confidentiality shall cease to apply to such parts of the Confidential Information if the\ninformation becomes general public knowledge through no fault of Employee or if Employee has the prior written permission of\nFARO.\nh. Upon termination of employment for whatever reason, Employee represents, warrants, covenants and agrees to deliver\nto Employer at Employer’s offices in Lake Mary, Florida, all Confidential Information (including but not limited to all books,\nrecords, products, formulas, manuals, letters, notes, memoranda, notebooks, sketches, drawings, plans, equipment, computer files and\nspreadsheets, and all other documents or materials that comprise Confidential Information, and also all copies of any of the\nforegoing), which are in Employee’s or his agents’ or affiliates’ possession or control, and Employee specifically agrees that\nEmployee shall not retain any copies or reproductions of such Confidential Information.\nNon-Competition and Non-Solicitation. If a “Non-Competition and Non-Solicitation Agreement” is attached hereto, the Employee\nagrees to the terms thereof, and such Non-Competition and Non-Solicitation Agreement is hereby incorporated into and made part of\nthis Agreement.\nSuch Addendum is is not attached.\nRemedies: The failure of the Employee to comply with the terms of this Agreement shall be cause for immediate dismissal from\nemployment, and in addition Employer shall have the following remedies:\na. Indemnification. Employee hereby agrees to indemnify the Employer in respect of any and all claims, losses, costs,\nliabilities and expenses (including reasonable attorneys’ and legal assistants’ fees) directly or indirectly resulting from or arising out\nof any breach of this Agreement, including for appeals.\nb. Injunctive Relief. Employee admits and agrees that Employee’s breach of the Agreement, including the confidentiality\nrestrictions and, if applicable, the non-compete and non-solicitation restrictions would result in irreparable harm to Employer, and\nthat Employer’s remedy at law for such a breach will be inadequate. Accordingly, it is agreed that Employer shall be entitled, upon\napplication to a court of competent jurisdiction, to obtain injunctive relief to enforce the provisions of this Agreement, which\ninjunctive relief shall be in addition to any other rights or remedies available to Employer. In any action or\nPage 3\n10. 11. 12. 13. proceeding by Employer to obtain a temporary restraining order and/or preliminary injunction, Employee hereby agrees to waive the\nnecessity of the Employer’s posting an injunction bond in order to obtain the temporary restraining order and/or prelimin ary\ninjunction. Employee also agrees that he or she shall be responsible for all damages incurred by Employer due to any breach of the\nrestrictive covenants contained in this Agreement. If Employer’s action for a temporary restraining order and/or motion for\npreliminary injunction is granted in whole or in part and Employer is ultimately unsuccessful in obtaining a permanent injunction to\nenforce the covenant, Employee hereby waives any and all rights he or she may have against the Employer for any injuries or\ndamages, including consequential damages, sustained by Employee and arising directly or indirectly from the issuance of the\ntemporary restraining order and/or preliminary injunction.\nc. Other Remedies. In addition to injunctive relief, FARO shall be entitled to any other remedy available in law or equity\nby reason of Employee’s breach or threatened breach of the restrictions contained herein.\nd. Recovery of Attorneys’ Fees and Costs. If Employer engages the services of an attorney or any other third party or in\nany way initiates legal action to enforce its rights under this Agreement and Employer prevails in its legal action, Employee agrees to\npay to the Employer all costs and expenses incurred by Employer relating to the enforcement of this Agreement (including reasonable\nattorneys’ and legal assistants’ fees before, at, and after trial and in appellate, bankruptcy and probate proceedings).\nGoverning Law. This Agreement shall be governed by and construed according to the laws of the State of Florida, without regard to\nits conflicts of law principles.\nVenue and Forum Selection Clause; Consent to Jurisdiction. Any action at law, suit in equity, or other judicial proceeding arising\nout of or related to this Agreement shall be instituted and maintained in the Courts in and for Orange County, Florida. Each party\nwaives the right to change venue. Employee agrees to exclusively submit to personal jurisdiction in the federal and state courts in or\nfor Orange County, Florida and no other place. Employee agrees that any action at law, suit in equity, or other judicial proceeding to\nenforce this Agreement, as well as any action at law, suit in equity, or other judicial proceeding relating to or arising out of this\nAgreement, shall be filed only in: (a) the United States District Court for the Middle District of Florida, Orlando Division; or (b) the\nBusiness Court of the Ninth Judicial Circuit Court of Orange County, Florida. With respect to any such court action, Employee\nhereby (a) irrevocably submits to the personal jurisdiction of such courts; (b) consents to service of process; (c) consents to venue;\nand (d) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction,\nservice of process, or venue. Both parties hereto further agree that the Business Court of the Ninth Judicial Circuit Court of Orange\nCounty, Florida and the United States District Court for the Middle District of Florida, Orlando Division, are convenient forums for\nany dispute that may arise herefrom and that neither party shall raise as a defense that such courts are not convenient forums.\nAssignment of Rights. FARO has the right to assign or transfer this Agreement, including any of its rights hereunder to any assignee\nor successor of FARO, which assignee or successor is then expressly authorized to enforce the terms of this Agreement. This\nAgreement is personal to the Employee and not assignable or transferable by Employee and any attempt to do so shall be void.\nModification. This Agreement contains the entire Agreement of the parties concerning the subject matter hereof. This Agreement\nshall not be amended except by a writing signed by both FARO and Employee.\nWaiver. No delay or failure by Employer in exercising any of its rights, remedies, powers, or privileges hereunder, at law or in\nequity, and no course of dealing between Employer and Employee or any other person shall be deemed to be a waiver by Employer of\nany such rights, remedies, powers, or privileges, even if such delay or failure is continuo us or repeated, nor shall any single or partial\nexercise of any right, remedy, power, or privilege preclude any other or further exercise thereof by Employer or the exercise of any\nother right, remedy, power, or privilege by Employer.\nEffect of Prior Agreements. Except as otherwise provided in this Section, this Agreement, including the exhibits hereto, embodies\nthe entire agreement and understanding of Employer and Employee in respect of the matters set forth herein and supersedes all prior\nagreements, representations, warranties, promises, covenants, arrangements, communications and understandings, oral or written,\nexpress or implied, between the parties with respect to such transactions. If this Agreement is held to be void or unenforceable for\nany reason, then the terms and provisions of any prior version of this “Intellectual Property and Confidentiality Agreement”\n(including any Non-Competition and Non-Solicitation Addendum) signed by Employee shall remain in full force and effect.\nConstruction. The parties intend that this Agreement provides FARO with the maximum protection allowed by law. Accordingly, if a\ncourt determines that any restrictions of this Agreement are unenforceable because they are overly broad or\nPage 4\n14. 15. not reasonably necessary to protect FARO’s legitimate business interests, the parties agree that the Court should interpret and enforce\nsuch restrictions in the manner necessary to provide FARO with the maximum protection allowed by law. The covenants set forth in\nthis Agreement shall be considered and construed as separate and independent covenants. The existence of any claim or cause of\naction against of the Employee against Employer shall not constitute a defense to enforcement by Employer of any of the terms and\nconditions of this Agreement. Should any part or provision of any covenant be held invalid, void or unenforceable in any court of\ncompetent jurisdiction, such invalidity, voidness or unenforceability shall not render invalid, void or unenforceable any other part or\nprovision of this Agreement.\nMiscellaneous. When used herein, one gender means any gender. The term “I”, “me” or “mine” means the Employee. Any use of the\nsingular shall include plural and vice versa. Use of the word “shall” means such action is mandatory. The title of this Agreement and\nthe paragraph headings are used for the purpose of convenience only and shall not be used to interpret or explain any portion of the\ntext hereof.\nAt-Will Employment. Notwithstanding anything to the contrary, Employee shall at all times be an employee-at-will. This\nAgreement is not intended to create a contract of employment between FARO and Employee. FARO maintains its policy of\nemployment-at-will.\nIN WITNESS WHEREQOF, the parties hereto have executed this Agreement the day and year indicated below. Employee Signature: Print Name: Date:\nFARO Technologies, Inc. By:\nPrint Name: Title:\nDate:\nPage 5\nNON-COMPETITION AND NON-SOLICITATION ADDENDUM\nTO INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nEmployee hereby further covenants and agrees to the following:\nA. Acknowledgment.\nEmployee acknowledges and agrees that, solely as a result of Employee’s employment with FARO and over the course of Employee’s\nemployment with FARO, Employee will: (1) be provided with special, unique, and extraordinary training, education and experience related to the\nBusiness; (2) be exposed to and/or in a position to generate Confidential Information of FARO; and (3) as a Sales Employee (as defined below),\ngenerate customer goodwill on behalf of FARO. Employee further acknowledges and agrees that FARO makes use of its Confidential\nInformation throughout the world and invests significant time and money, including Employee’s salary, to provide Employee with such special,\nunique, and extraordinary training, education and experience related to the Business and to generate customer goodwill on behalf of FARO, all of\nwhich are legitimate business interests of FARO. Employee further acknowledges and agrees that the restrictions in this Addendum are\nreasonable and necessary to allow FARO to protect its legitimate business interests. In consideration of the foregoing and of the benefits\ngenerally provided to the Employee by Employer, and in connection with FARO’s protection of its legitimate business interests, Employee agrees\nto abide and be bound by the restrictions of this Addendum, which restrictions are intended by the parties to extend to any and all activities of the\nEmployee, whether as an independent contractor, partner or joint venturer, or as an officer, director, stockholder, agent, employee or salesman for\nany person, firm, partnership, corporation or other entity, or otherwise.\nB. Additional Definitions.\n“FARO Competitor” means (i) any business or enterprise that provides goods and/or services similar to or competitive with FARO (each such\nbusiness or enterprise, a “Competitor”), including, without limitation, those persons or entities identified on Schedule 1 as current competitors of\nFARQO as of the date hereof or (ii) any of such Competitor’s subsidiaries, affiliates, agents or distributors, irrespective or whether the subsidiary,\naffiliate, agent or distributor itself provides goods and/or services similar to or competitive with FARO. As used in this definition, “affiliate”\nincludes any entity, business or enterprise that, directly or indirectly, controls a Competitor or is under common control through another person or\nentity with a Competitor. The terms “controls,” “controlled by,” and “under common control” mean, when used with respect to any specified\nlegal entity, the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting\nsecurities, by contract or otherwise.\n“Restricted Period” means the term of Employee’s employment with FARO and for a period of twenty-four months after the date Employee’s\nemployment with FARO is terminated for any reason.\n“Sales Employee” means any Employee that deals with Customers and Prospective Customers with the intention of producing sales and\nrepresents FARO with respect to such Customers and Prospective Customers within a designated geographic territory.\nC. Non-Competition.\nIn order to protect FARO’s Trade Secret and Confidential Information, third-party goodwill and other legitimate business interests,\nEmployee acknowledges and agrees that during the Restricted Period, Employee will not, without FARO’s express written permission, directly or\nindirectly, assist, be employed by, consult with, or provide services to any FARO Competitor. Employee understands and agrees that, during the\nRestricted Period, he is and will be subject to the restrictions set forth in this Paragraph C anywhere within the geographic boundaries of the\ncontinental United States; provided, however, that Sales Employees shall be subject to the restrictions set forth in this Paragraph C during the\nRestricted Period within the geographic territory that the Employee represented for the Employer within the twenty-four (24) months prior to the\ntermination of employment.\nPage 6\nD. Non-Solicitation.\nDuring the Restricted Period, Employee shall not, without the prior written permission of Employer, directly or indirectly, for himself or on\nbehalf of any other person or entity, (i) solicit, call upon, encourage or contact, or attempt to solicit, call upon, encourage or contact any\nCustomer or Prospective Customer of the Employer for purposes of providing products or services competitive with the Business or causing such\nperson or entity to terminate their business relationship with Employer or (ii) accept business from or provide goods or services to any Customer\nor Prospective Customer of the Employer.\nE. Non-Recruitment.\nDuring the Restricted Period, Employee shall not, directly or indirectly, without the prior written permission of Employer, solicit or induce,\nor attempt to solicit or induce, any employee of Employer to terminate his or her relationship with Employer and/or to enter into an employment\nor agency relationship with Employee or with any other person or entity with whom Employee is affiliated, provided that the restriction in this\nsection shall apply only to employees of Employer with whom Employee worked by virtue of and during his or her employment with Employer.\nF. Miscellaneous.\na. The period of time during which Employee is prohibited from engaging in certain business practices under this Addendum shall be\nextended by the length of time during which Employee is in breach of such covenants.\nb. It is understood by and between the parties hereto that the restrictive covenants set forth in this Addendum hereof are essential\nelements of the employment arrangement between Employee and Employer, and that but for such covenants, Employer would not have agreed to\nhire Employee. The existence of any claim or cause of action of the Employee against Employer shall not constitute a defense to the enforcement\nby Employer of such covenants. The restrictive covenants, and rights and protections provided by the restrictive covenants, are assignable by\nEmployer, but not by Employee.\nc. The covenants set forth in this Agreement shall be considered and construed as separate and independent covenants. Should any\npart or provision of any covenant be held invalid, void or unenforceable in any court of competent jurisdiction, such invalidity, voidness or\nunenforceability shall not render invalid, void or unenforceable any other part or provision of this Agreement. If any portion of the foregoing\nprovisions is found to be invalid or unenforceable by a court of competent jurisdiction because its duration, the territory, the definition of\nactivities or the definition of information covered is considered to be invalid or unreasonable in scope, the invalid or unreasonable term shall be\nredefined, or a new enforceable term provided, such that the intent of Employer and Employee in agreeing to the provisions of this Agreement\nwill not be impaired and the provision in question shall be enforceable to the fullest extent of the applicable laws.\nd. Employee shall, no later than the last day of his or her employment, deliver to Employer at its offices in Lake Mary, Florida a\nwritten, signed and notarized confirmation that Employee is aware of his or her obligations under this Non-Competition and Non-Solicitation\nAddendum and that Employee will comply with its terms.\nIN WITNESS WHEREQOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nPage 7\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 8	EX-10.8 3 d62023dex108.htn FORM OF PATENT AND CONFIDENTIALITY AGREEMENT\nExhibit 10.8\nINTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nThis INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT (the "Agreement"), effective as of\n201 is made by and between FARO Technologies, Inc., a Florida Corporation, including its subsidiaries and affiliates (hereinafter collectively\n"FARO" or "Employer"), and\n("Employee").\nIn consideration of the Employee's employment by FARO, the compensation paid and to be paid to Employee by FARO, and\nEmployer's agreement to provide Employee access to Employer's Confidential Information (as defined below) and Trade Secrets (as defined\nbelow and as defined under Florida law) and other good and valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, Employee hereby warrants and agrees to be legally bound as follows:\n1. Definitions\na. "Business" means (1) all aspects related to 3-D measurement, imaging or realization systems, including but not limited\nto the design, development, manufacture, marketing, sale, offer for sale and support of such 3-D measurement, imaging or realization\nsystems, and (2) any other technology, product, process, apparatus, service, research or development on which Employee worked\nor\nhad access to Confidential Information while employed by FARO.\nb. "Confidential Information" shall mean information, other than Trade Secrets, which relates to Employer, Employer's\nactivities, Employer's business or Employer's suppliers or customers that is not generally known by persons not employed by\nEmployer, and which is or has been disclosed to Employee or of which Employee became aware as a consequence of or through his\nor her relationship to Employer. This includes but is not limited to FARO'S know-how; accounts; pricing and cost information\nmarketing techniques and plans; computer programs and software; coding systems and processes; computer networking concepts and\nprocesses; source code; contract terms and prospective contract terms with existing and prospective customers, accounts and other\npersons or entities with whom FARO has or contemplates a business relationship; actual or potential customers and purchasers;\nconfidential information of any customer; products; product designs; design documentation; formulas; concepts; inventions; research;\nmethods; processes; operations; product uses; product quality analysis; and other information related to the Business that is not\ngenerally publicly known. "Confidentia Information" shall not include information that has become generally available to the public\nby the act of one who has the right to disclose such information without violating any legal right or privilege of Employer.\nC. "Customer" means any individual or entity to whom Employer has sold products or services related to the Business, and\nwith\nwhom Employee had contact, alone or in conjunction with others, on behalf of Employer during the twelve (12) months\nimmediately prior to the termination of his or her employment.\nd. "Prospective Customer" means any individual or entity who is not a Customer, to whom Employer has marketed or\npresented products or services related to the Business, and with whom Employee had contact, alone or in conjunction with others, on\nbehalf of Employer during the twelve (12) months immediately prior to the termination of his or her employment.\ne. "Trade Secrets" shall mean all information, without regard to form, including, but not limited to, technical\nor\nnontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data,\nfinancial plans, product plans, distribution lists or a list of actual or potential customers, advertisers or suppliers which is not\ncommonly known by or available to the public and which information: (A) derives economic value, actual or potential, from not\nbeing generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value\nfrom its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Without\nlimiting the foregoing, Trade Secrets include any documents or information that constitute a "trade secret(s)" under the common law\nor statutory law of the State of Florida and generally includes all source codes and object codes for Employer software, all buyer and\nseller information and all lists of clients or suppliers to the extent that such information fits within the Florida Trade Secrets Act.\nNothing in this Agreement is intended, or shall be construed, to limit the definitions or protections of the Florida Trade Secrets Act or\nany other applicable law protecting trade secrets or other confidential information. Trade Secrets shall not include information that\nhas become generally available to the public by the act of one who has the right to disclose such information without violating any\nlegal right or privilege of Employer.\n2.\nAcknowledgement of FARO's Right To Protection of Business Interests. Employee acknowledges and agrees that this Agreement,\nincluding but not limited to the covenants not to compete contained herein, are necessary to allow FARO to protect its legitimate\nbusiness interests, including but not limited to its Confidential Information and customer goodwill. Accordingly, Employee agrees\nthat this Agreement, including but not limited to the covenants not to compete contained herein, are reasonable and necessary to\nallow FARO to protect its legitimate business interests.\nPage 1\n3.\nConfidentiality Restriction.\na. Nature and Restriction. Employee covenants and agrees that: (i) during his or her employment with Employer he or\nshe will not use or disclose any Trade Secrets or Confidential Information of Employer other than as necessary in connection with the\nperformance of his or her duties for Employer, and (ii) for a period of five (5) years immediately following the termination of his or\nher employment with Employer, Employee shall not, directly or indirectly, intentionally, or negligently, in any fashion, form, or\nmanner, transmit, divulge, communicate, or disclose any Trade Secrets or Confidential Information of Employer to any person and\nshall not make use of any such Trade Secrets or Confidential Information, directly or indirectly, for himself or herself or others,\nwithout the prior written consent of Employer, except for a disclosure that is required by any law or order, in which case Employee\nshall provide Employer prior written notice of such requirement and an opportunity to contest such disclosure. However, to the extent\nthat such information is a "trade secret" as that term is defined under a state or federal law, this subparagraph is not intended to, and\ndoes not, limit Employer's rights or remedies thereunder, and the time period for prohibition on disclosure or use of such information\nis until such information becomes generally known to the public through the act of one who has the right to disclose such information\nwithout violating any legal right or privilege of Employer. Notwithstanding anything herein to the contrary, nothing in this agreement\nshall (i) prohibit Employee from making reports of possible violations of federal law or regulation to any governmental agency or\nentity in accordance with the provisions of an d rules promulgated under Section 21F of the Securities Exchange Act of 1934 or\nSection 806 of the Sarbanes-Oxley Act of 2002, or of any other whistleblower protection provisions of state or federal law or\nregulation, or (ii) require notification or pr ior approval by Employer of any reporting described in clause (i).\nb. Prior Confidentiality Restrictions. Employee covenants and agrees that Employee will not disclose to FARO or\notherwise use in the course of employment with FARO any confidential or trade secret information that is subject to a ny agreements\nto which Employee is bound that arose prior to employment with FARO.\nC. Return of Information. Employee agrees that he or she shall return to Employer's offices in Lake Mary, Florida, all\nTrade Secrets, Confidentia Information, documents, and other property of Employer immediately upon the termination of his or her\nemployment with Employer or upon any earlier request by Employer.\nd. Effect of Disclosure. Employee acknowledges that any disclosure to any third party of Trade Secrets or Confidential\nInformation not expressly allowed by this Agreement is detrimental to the Employer. In the event that any Trade Secret or\nConfidential Information is disclosed by Employee in violation of this Agreement, Employee shall be immediately, directly, and\nprincipally liable, with no limitation, for any and all costs, claims and damages (including, but not limited to, special, indirect,\nincidental and consequential damages, and reasonable attorneys' fees and costs of litigation) sustained by Employer as a result of\nsuch disclosure.\ne. Consideration For Disclosure of Trade Secrets and Confidential Information. Employee understands and agrees\nthat he or she has entered into this Agreement and, if applicable, the Non-Competition and Non-Solicitation Addendum referenced in\nthis Agreement, in consideration for and as a condition of Employer's agreement to provide Employee access to Employer's\nConfidential Information and Trade Secrets.\n4.\nAssignment of Work Product; Disclosure; Confidentiality.\na. If at any time or times during Employee's employment with FARO, Employee shall (either alone or with others) make,\nconceive, create, discover or reduce to practice any invention, idea, product, process, formula, method, plans, modification,\ndiscovery, design, development, improvement, process, software program, work of authorship, documentation, formula, data,\ntechnique, know-how, trade secret or intellectual property right whatsoever or any interest therein (whether or not patentable or\nregistrable under copyright, trademark or similar statutes or subject to analogous protection) that i) relates to the Business of FARO,\n(ii) results from tasks assigned to the Employee by FARO or (iii) results from the use of premises or personal property (whether\ntangible or intangible) owned, leased or contracted for by FARO (herein called "Work Product"), such Work Product and the benefits\nthereof shall immediately become the sole and absolute property of FARO and its successors and assigns.\nb. Without further consideration, upon the earlier of the making, conception, creation, discovery or reduction to practice of\nsuch\nWork\nProduct,\nwhether\nsolely\nor\njointly\nwith\nothers,\nEmployee\ngives,\ntransfers\nand\nhereby\nassigns\nto\nEmployer\n(or\nto\nany\nagent,\nnominee or assignee, as requested by Employer) Employee's right, title and interest to all such Work Product and all intellectual\nproperty rights related thereto.\nC. Employee agrees to fully disclose exclusively to Employer all Work Product. All disclosures of Work Product are to be\nmade in writing and promptly after the earlier of the making, conception, creation, discovery or reduction topractice of such Work\nProduct. For the avoidance of doubt, Employer shall own all Work Product regardless of whether Employee actually discloses such\nWork Product to Employer.\nPage 2\nd. During the period of Employee's employment with Employer and at all times after the termination thereof, Employee\nagrees to provide all reasonably necessary assistance to Employer (including but not limited to testifying in any proceedings or suit,\nand executing any and all applications, assignments, or other documents or instruments): (1) in connection with Employer seeking to\nprotect any Work Product, including but not limited to the preparation, filing and/or prosecution of any patent applications,\ntrademarks or trade names or copyrights in the United States and any foreign country (as well as any state or other subdivision\nthereof); and the assertion of any such patents, trademarks, trade names or copyrights against a third party; and/or (2) to vest\nEmployer (and its successors and assigns) with all right, title and interest in the Work Product. Should Employee fail or refuse to\nprovide such assistance and/or execute any such document, Employee hereby irrevocably appoints Employer as its attorney-in-fact to\nprepare and/or execute such documents in the name of Employee and on his/her behalf, and to institute and prosecute any\nproceedings as FARO may deem necessary or appropriate to secure, protect, or enforce the Work Product.\ne. Employee represents and warrants that there are no ideas, products, formulas, methods, plans, developments,\nimprovements or patentable inventions in any way related to the Business which Employee desires to exclude from the operation of\nthis Agreement, except those, if any, designated by a patent number, application serial number or brief description where no\napplication has been filed, on the list attached hereto as Exhibit A and signed by Employee and Employer.\nf. Employer allows certain of its employees to have access to the following on-line services: Microsoft Exchange, all\nFARO servers, and the Internet. Employee shall use such services in connection with the Business and in accordance with FARO\npolicies and procedures, as they may change from time to time, which limit use of such services for personal reasons or other\npurposes not related to the Business. Furthermore, Employee is advised that under certain circumstances transmission of data or\nmessages on the Internet or through Internet e-mail is not secure and that the transmission of Confidential Information on the Internet\nor through Internet e-mail must comply with Employer-established appropriate safeguards against the interception or misdelivery of\nsuch information including, but not limited to the establishment of firewalls, encryption methods, or other technology that will\nprevent the unintended interception of data transmission by third parties on the Internet or any other on-line service.\ng. The foregoing obligations of confidentiality shall cease to apply to such parts of the Confidential Information if\nthe\ninformation becomes general public knowledge through no fault of Employee or if Employee has the prior written permission of\nFARO.\nh. Upon termination of employment for whatever reason, Employee represents, warrants, covenants and agrees to deliver\nto Employer at Employer's offices in Lake Mary, Florida, all Confidential Information (including but not limited to all books,\nrecords, products, formulas, manuals, letters, notes, memoranda, notebooks, sketches, drawings, plans, equipment, computer files and\nspreadsheets, and all other documents or materials that comprise Confidential Information, and also all copies of any of the\nforegoing), which are in Employee's or his agents' or affiliates' possession or control, and Employee specifically agrees that\nEmployee shall not retain any copies or reproductions of such Confidential Information.\n5.\nNon-Competition and Non-Solicitation. If a "Non-Competition and Non-Solicitation Agreement" is attached hereto, the Employee\nagrees to the terms thereof, and such Non-Competition and Non-Solicitation Agreement is hereby incorporated into and made part of\nthis Agreement.\nSuch Addendum is\nis not\nattached.\n6.\nRemedies: The failure of the Employee to comply with the terms of this Agreement shall be cause for immediate dismissal from\nemployment, and in addition Employer shall have the following remedies:\na. Indemnification. Employee hereby agrees to indemnify the Employer in respect of any and all claims, losses, costs,\nliabilities and expenses (including reasonable attorneys' and legal assistants' fees) directly or indirectly resulting from or arising out\nof any breach of this Agreement, including for appeals.\nb. Injunctive Relief. Employee admits and agrees that Employee's breach of the Agreement, including the confidentiality\nrestrictions and, if applicable, the non-compete and non-solicitation restrictions would result in irreparable harm to Employer, and\nthat Employer's remedy at law for such a breach will be inadequate. Accordingly, it is agreed that Employer shall be entitled, upon\napplication to a court of competent jurisdiction, to obtain injunctive relief to enforce the provisions of this Agreement, which\ninjunctive relief shall be in addition to any other rights or remedies available to Employer. In any action or\nPage 3\nproceeding by Employer to obtain a temporary restraining order and/or preliminary injunction, Employee hereby agrees to waive the\nnecessity of the Employer's posting an injunction bond in order to obtain the temporary restraining order and/or prelimin ary\ninjunction Employee also agrees that he or she shall be responsible for all damages incurred by Employer due to any breach of the\nrestrictive covenants contained in this Agreement. If Employer's action for a temporary restraining order and/or motion for\npreliminary injunction is granted in whole or in part and Employer is ultimately unsuccessful in obtaining a permanent injunction to\nenforce the covenant, Employee hereby waives any and all rights he or she may have against the Employer for any injuries or\ndamages, including consequential damages, sustained by Employee and arising directly or indirectly from the issuance of the\ntemporary restraining order and/or preliminary injunction.\nC. Other Remedies. In addition to injunctive relief, FARO shall be entitled to any other remedy available in law or equity\nby reason of Employee's breach or threatened breach of the restrictions contained herein.\nd. Recovery of Attorneys' Fees and Costs. If Employer engages the services of an attorney or any other third party or\nin\nany\nway initiates legal action to enforce its rights under this Agreement and Employer prevails in its legal action, Employee agrees to\npay to the Employer all costs and expenses incurred by Employer relating to the enforcement of this Agreement (including reasonable\nattorneys' and legal assistants' fees before, at, and after trial and in appellate, bankruptcy and probate proceedings).\n7.\nGoverning Law. This Agreement shall be governed by and construed according to the laws of the State of Florida, without regard to\nits conflicts of law principles.\n8.\nVenue and Forum Selection Clause; Consent to Jurisdiction. Any action at law, suit in equity, or other judicial proceeding arising\nout of or related to this Agreement shall be instituted and maintained in the Courts in and for Orange County, Florida. Each party\nwaives the right to change venue. Employee agrees to exclusively submit to personal jurisdiction in the federal and state courts in or\nfor Orange County, Florida and no other place. Employee agrees that any action at law, suit in equity, or other judicial proceeding to\nenforce this Agreement, as well as any action at law, suit in equity, or other judicial proceeding relating to or arising out of this\nAgreement, shall be filed only in: (a) the United States District Court for the Middle District of Florida, Orlando Division; or (b)\nthe\nBusiness Court of the Ninth Judicial Circuit Court of Orange County, Florida. With respect to any such court action, Employee\nhereby (a) irrevocably submits to the personal jurisdiction of such courts; (b) consents to service of process; (c) consents to venue;\nand (d) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction,\nservice of process, or venue. Both parties hereto further agree that the Business Court of the Ninth Judicial Circuit Court of Orange\nCounty, Florida and the United States District Court for the Middle District of Florida, Orlando Division, are convenient forums for\nany dispute that may arise herefrom and that neither party shall raise as a defense that such courts are not convenient forums.\n9.\nAssignment of Rights. FARO has the right to assign or transfer this Agreement, including any of its rights hereunder to any assignee\nor successor of FARO, which assignee or successor is then expressly authorized to enforce the terms of this Agreement. This\nAgreement is personal to the Employee and not assignable or transferable by Employee and any attempt to do so shall be void.\n10.\nModification. This Agreement contains the entire Agreement of the parties concerning the subject matter hereof. This Agreement\nshall not be amended except by a writing signed by both FARO and Employee.\n11. Waiver. No delay or failure by Employer in exercising any of its rights, remedies, powers, or privileges hereunder, at law or in\nequity, and no course of dealing between Employer and Employee or any other person shall be deemed to be a waiver by Employer of\nany such rights, remedies, powers, or privileges, even if such delay or failure is continuo us or repeated, nor shall any single or partial\nexercise of any right, remedy, power, or privilege preclude any other or further exercise thereof by Employer or the exercise of any\nother right, remedy, power, or privilege by Employer.\n12.\nEffect of Prior Agreements. Except as otherwise provided in this Section, this Agreement, including the exhibits hereto, embodies\nthe entire agreement and understanding of Employer and Employee in respect of the matters set forth herein and supersedes all prior\nagreements, representations, warranties, promises, covenants, arrangements, communications and understandings, oral or written,\nexpress or implied, between the parties with respect to such transactions. If this Agreement is held to be void or unenforceable\nfor\nany reason, then the terms and provisions of any prior version of this "Intellectual Property and Confidentiality Agreement"\n(including any Non-Competition and Non-Solicitation Addendum) signed by Employee shall remain in full force and effect.\n13.\nConstruction. The parties intend that this Agreement provides FARO with the maximum protection allowed by law. Accordingly, if\na\ncourt determines that any restrictions of this Agreement are unenforceable because they are overly broad or\nPage 4\nnot reasonably necessary to protect FARO'S legitimate business interests, the parties agree that the Court should interpret and enforce\nsuch restrictions in the manner necessary to provide FARO with the maximum protection allowed by law. The covenants set forth in\nthis Agreement shall be considered and construed as separate and independent covenants. The existence of any claim or cause of\naction against of the Employee against Employer shall not constitute a defense to enforcement by Employer of any of the terms and\nconditions of this Agreement. Should any part or provision of any covenant be held invalid, void or unenforceable in any court of\ncompetent jurisdiction, such invalidity, voidness or unenforceability shall not render invalid, void or unenforceable any other part or\nprovision of this Agreement.\n14. Miscellaneous. When used herein, one gender means any gender The term "I", "me" or "mine" means the Employee. Any use of\nthe\nsingular shall include plural and vice versa. Use of the word "'shall" means such action is mandatory. The title of this Agreement and\nthe paragraph headings are used for the purpose of convenience only and shall not be used to interpret or explain any portion of the\ntext hereof.\n15. At-Will Employment. Notwithstanding anything to the contrary, Employee shall at all times be an employee-at-will This\nAgreement is not intended to create a contract of employment between FARO and Employee. FARO maintains its policy of\nemployment-at-will.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 5\nNON-COMPETITION AND NON-SOLICITATION ADDENDUM\nTO INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nEmployee hereby further covenants and agrees to the following:\nA. Acknowledgment.\nEmployee acknowledges and agrees that, solely as a result of Employee's employment with FARO and over the course of Employee's\nemployment with FARO, Employee will: (1) be provided with special, unique, and extraordinary training, education and experience related to the\nBusiness; (2) be exposed to and/or in a position to generate Confidential Information of FARO; and (3) as a Sales Employee (as defined below),\ngenerate customer goodwill on behalf of FARO. Employee further acknowledges and agrees that FARO makes use of its Confidential\nInformation throughout the world and invests significant time and money, including Employee's salary, to provide Employee with such special,\nunique, and extraordinary training, education and experience related to the Business and to generate customer goodwill on behalf of FARO, all of\nwhich are legitimate business interests of FARO. Employee further acknowledges and agrees that the restrictions in this Addendum are\nreasonable and necessary to allow FARO to protect its legitimate business interests. In consideration of the foregoing and of the benefits\ngenerally provided to the Employee by Employer, and in connection with FARO's protection of its legitimate business interests, Employee agrees\nto\nabide and be bound by the restrictions of this Addendum, which restrictions are intended by the parties to extend to any and all activities of the\nEmployee, whether as an independent contractor, partner or joint venturer, or as an officer, director, stockholder, agent, employee or salesman for\nany person, firm, partnership, corporation or other entity, or otherwise.\nB. Additional Definitions.\n"FARO Competitor" means (i) any business or enterprise that provides goods and/or services similar to or competitive with FARO (each such\nbusiness or enterprise, a "Competitor"), including, without limitation, those persons or entities identified on Schedule 1 as current competitors of\nFARO as of the date hereof or (ii) any of such Competitor's subsidiaries, affiliates, agents or distributors, irrespective or whether the subsidiary,\naffiliate, agent or distributor itself provides goods and/or services similar to or competitive with FARO. As used in this definition, "affiliate"\nincludes any entity, business or enterprise that, directly or indirectly, controls a Competitor or is under common control through another person or\nentity with a Competitor. The terms "controls," "controlled by," and "under common control" mean, when used with respect to any specified\nlegal entity, the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting\nsecurities, by contract or otherwise.\n"Restricted Period" means the term of Employee's employment with FARO and for a period of twenty-four months after the date Employee's\nemployment with FARO is terminated for any reason.\n"Sales Employee" means any Employee that deals with Customers and Prospective Customers with the intention of producing sales and\nrepresents FARO with respect to such Customers and Prospective Customers within a designated geographic territory.\nC. Non-Competition.\nIn order to protect FARO's Trade Secret and Confidential Information, third-party goodwill and other legitimate business interests,\nEmployee acknowledges and agrees that during the Restricted Period, Employee will not, without FARO's express written permission, directly or\nindirectly, assist, be employed by, consult with, or provide services to any FARO Competitor. Employee understands and agrees that, during the\nRestricted Period, he is and will be subject to the restrictions set forth in this Paragraph C anywhere within the geographic boundaries of the\ncontinental United States; provided, however, that Sales Employees shall be subject to the restrictions set forth in this Paragraph C during the\nRestricted Period within the geographic territory that the Employee represented for the Employer within the twenty-four (24) months prior to the\ntermination of employment.\nPage 6\nD. Non-Solicitation.\nDuring the Restricted Period, Employee shall not, without the prior written permission of Employer, directly or indirectly, for himself or on\nbehalf of any other person or entity, (i) solicit, call upon, encourage or contact, or attempt to solicit, call upon, encourage or contact any\nCustomer or Prospective Customer of the Employer for purposes of providing products or services competitive with the Business or causing such\nperson or entity to terminate their business relationship with Employer or (ii) accept business from or provide goods or services to any Customer\nor Prospective Customer of the Employer.\nE. Non-Recruitment.\nDuring the Restricted Period, Employee shall not, directly or indirectly, without the prior written permission of Employer, solicit or induce,\nor\nattempt to solicit or induce, any employee of Employer to terminate his or her relationship with Employer and/or to enter\ninto\nan\nemployment\nor agency relationship with Employee or with any other person or entity with whom Employee is affiliated, provided that the restriction in this\nsection shall apply only to employees of Employer with whom Employee worked by virtue of and during his or her employment with Employer.\nF. Miscellaneous.\na. The period of time during which Employee is prohibited from engaging in certain business practices under this Addendum shall be\nextended by the length of time during which Employee is in breach of such covenants.\nb. It is understood by and between the parties hereto that the restrictive covenants set forth in this Addendum hereof are essential\nelements of the employment arrangement between Employee and Employer, and that but for such covenants, Employer would not have agreed to\nhire Employee. The existence of any claim or cause of action of the Employee against Employer shall not constitute a defense to the enforcement\nby Employer of such covenants. The restrictive covenants, and rights and protections provided by the restrictive covenants, are assignable by\nEmployer, but not by Employee.\nC. The covenants set forth in this Agreement shall be considered and construed as separate and independent covenants. Should any\npart or provision of any covenant be held invalid, void or unenforceable in any court of competent jurisdiction, such invalidity, voidness or\nunenforceability shall not render invalid, void or unenforceable any other part or provision of this Agreement. If any portion of the foregoing\nprovisions is found to be invalid or unenforceable by a court of competent jurisdiction because its duration, the territory, the definition of\nactivities or the definition of information covered is considered to be invalid or unreasonable in scope, the invalid or unreasonable term shall be\nredefined, or a new enforceable term provided, such that the intent of Employer and Employee in agreeing to the provisions of this Agreement\nwill not be impaired and the provision in question shall be enforceable to the fullest extent of the applicable laws.\nd. Employee shall, no later than the last day of his or her employment, deliver to Employer at its offices in Lake Mary, Florida a\nwritten, signed and notarized confirmation that Employee is aware of his or her obligations under this Non-Competition and Non-Solicitation\nAddendum and that Employee will comply with its terms.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nPage 7\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 8	EX-10.8 3 d62023dex108.htm FORM OF PATENT AND CONFIDENTIALITY AGREEMENT\nExhibit 10.8\nINTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nThis INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT (the “Agreement”), effective as of\n,\n201 , is made by and between FARO Technologies, Inc., a Florida Corporation, including its subsidiaries and affiliates (hereinafter collectively\n“FARO” or “Employer”), and\n(“Employee”).\nIn consideration of the Employee’s employment by FARO, the compensation paid and to be paid to Employee by FARO, and\nEmployer’s agreement to provide Employee access to Employer ’s Confidential Information (as defined below) and Trade Secrets (as defined\nbelow and as defined under Florida law) and other good and valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, Employee hereby warrants and agrees to be legally bound as follows:\n1. Definitions\na. “Business” means (1) all aspects related to 3-D measurement, imaging or realization systems, including but not limited\nto the design, development, manufacture, marketing, sale, offer for sale and support of such 3-D measurement, imaging or realization\nsystems, and (2) any other technology, product, process, apparatus, service, research or development on which Employee worked or\nhad access to Confidential Information while employed by FARO.\nb. “Confidential Information” shall mean information, other than Trade Secrets, which relates to Employer, Employer ’s\nactivities, Employer’s business or Employer ’s suppliers or customers that is not generally known by persons not employed by\nEmployer, and which is or has been disclosed to Employee or of which Employee became aware as a consequence of or through his\nor her relationship to Employer. This includes but is not limited to FARO’s know-how; accounts; pricing and cost information;\nmarketing techniques and plans; computer programs and software; coding systems and processes; computer networking concepts and\nprocesses; source code; contract terms and prospective contract terms with existing and prospective customers, accounts and other\npersons or entities with whom FARO has or contemplates a business relationship; actual or potential customers and purchasers;\nconfidential information of any customer; products; product designs; design documentation; formulas; concepts; inventions; research;\nmethods; processes; operations; product uses; product quality analysis; and other information related to the Business that is not\ngenerally publicly known. “Confidential Information” shall not include information that has become generally available to the public\nby the act of one who has the right to disclose such information without violating any legal right or privilege of Employer.\nc. “Customer” means any individual or entity to whom Employer has sold products or services related to the Business, and\nwith whom Employee had contact, alone or in conjunction with others, on behalf of Employer during the twelve (12) months\nimmediately prior to the termination of his or her employment.\nd. “Prospective Customer” means any individual or entity who is not a Customer, to whom Employer has marketed or\npresented products or services related to the Business, and with whom Employee had contact, alone or in conjunction with others, on\nbehalf of Employer during the twelve (12) months immediately prior to the termination of his or her employment.\ne. “Trade Secrets” shall mean all information, without regard to form, including, but not limited to, technical or\nnontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data,\nfinancial plans, product plans, distribution lists or a list of actual or potential customers, advertisers or suppliers which is not\ncommonly known by or available to the public and which information: (A) derives economic value, actual or potential, from not\nbeing generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value\nfrom its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Without\nlimiting the foregoing, Trade Secrets include any documents or information that constitute a “trade secret(s)” under the common law\nor statutory law of the State of Florida and generally includes all source codes and object codes for Employer software, all buyer and\nseller information and all lists of clients or suppliers to the extent that such information fits within the Florida Trade Secrets Act.\nNothing in this Agreement is intended, or shall be construed, to limit the definitions or protections of the Florida Trade Secrets Act or\nany other applicable law protecting trade secrets or other confidential information. Trade Secrets shall not include information that\nhas become generally available to the public by the act of one who has the right to disclose such information without violating any\nlegal right or privilege of Employer.\n2. Acknowledgement of FARO’s Right To Protection of Business Interests. Employee acknowledges and agrees that this Agreement,\nincluding but not limited to the covenants not to compete contained herein, are necessary to allow FARO to protect its legitimate\nbusiness interests, including but not limited to its Confidential Information and customer goodwill. Accordingly, Employee agrees\nthat this Agreement, including but not limited to the covenants not to compete contained herein, are reasonable and necessary to\nallow FARO to protect its legitimate business interests.\nPage 1\n3. Confidentiality Restriction.\na. Nature and Restriction. Employee covenants and agrees that: (i) during his or her employment with Employer he or\nshe will not use or disclose any Trade Secrets or Confidential Information of Employer other than as necessary in connection with the\nperformance of his or her duties for Employer, and (ii) for a period of five (5) years immediately following the termination of his or\nher employment with Employer, Employee shall not, directly or indirectly, intentionally, or negligently, in any fashion, form, or\nmanner, transmit, divulge, communicate, or disclose any Trade Secrets or Confidential Information of Employer to any person and\nshall not make use of any such Trade Secrets or Confidential Information, directly or indirectly, for himself or herself or others,\nwithout the prior written consent of Employer, except for a disclosure that is required by any law or order, in which case Employee\nshall provide Employer prior written notice of such requirement and an opportunity to contest such disclosure. However, to the extent\nthat such information is a “trade secret” as that term is defined under a state or federal law, this subparagraph is not intended to, and\ndoes not, limit Employer ’s rights or remedies thereunder, and the time period for prohibition on disclosure or use of such information\nis until such information becomes generally known to the public through the act of one who has the right to disclose such information\nwithout violating any legal right or privilege of Employer. Notwithstanding anything herein to the contrary, nothing in this agreement\nshall (i) prohibit Employee from making reports of possible violations of federal law or regulation to any governmental agency or\nentity in accordance with the provisions of an d rules promulgated under Section 21F of the Securities Exchange Act of 1934 or\nSection 806 of the Sarbanes-Oxley Act of 2002, or of any other whistleblower protection provisions of state or federal law or\nregulation, or (ii) require notification or pr ior approval by Employer of any reporting described in clause (i).\nb. Prior Confidentiality Restrictions. Employee covenants and agrees that Employee will not disclose to FARO or\notherwise use in the course of employment with FARO any confidential or trade secret information that is subject to a ny agreements\nto which Employee is bound that arose prior to employment with FARO.\nc. Return of Information. Employee agrees that he or she shall return to Employer ’s offices in Lake Mary, Florida, all\nTrade Secrets, Confidential Information, documents, and other property of Employer immediately upon the termination of his or her\nemployment with Employer or upon any earlier request by Employer.\nd. Effect of Disclosure. Employee acknowledges that any disclosure to any third party of Trade Secrets or Confidential\nInformation not expressly allowed by this Agreement is detrimental to the Employer. In the event that any Trade Secret or\nConfidential Information is disclosed by Employee in violation of this Agreement, Employee shall be immediately, directly, and\nprincipally liable, with no limitation, for any and all costs, claims and damages (including, but not limited to, special, indirect,\nincidental and consequential damages, and reasonable attorneys’ fees and costs of litigation) sustained by Employer as a result of\nsuch disclosure.\ne. Consideration For Disclosure of Trade Secrets and Confidential Information. Employee understands and agrees\nthat he or she has entered into this Agreement and, if applicable, the Non-Competition and Non-Solicitation Addendum referenced in\nthis Agreement, in consideration for and as a condition of Employer ’s agreement to provide Employee access to Employer’s\nConfidential Information and Trade Secrets.\n4. Assignment of Work Product; Disclosure; Confidentiality.\na. If at any time or times during Employee’s employment with FARO, Employee shall (either alone or with others) make,\nconceive, create, discover or reduce to practice any invention, idea, product, process, formula, method, plans, modification,\ndiscovery, design, development, improvement, process, software program, work of authorship, documentation, formula, data,\ntechnique, know-how, trade secret or intellectual property right whatsoever or any interest therein (whether or not patentable or\nregistrable under copyright, trademark or similar statutes or subject to analogous protection) that ( i) relates to the Business of FARO,\n(ii) results from tasks assigned to the Employee by FARO or (iii) results from the use of premises or personal property (whether\ntangible or intangible) owned, leased or contracted for by FARO (herein called “Work Product”), such Work Product and the benefits\nthereof shall immediately become the sole and absolute property of FARO and its successors and assigns.\nb. Without further consideration, upon the earlier of the making, conception, creation, discovery or reduction to practice of\nsuch Work Product, whether solely or jointly with others, Employee gives, transfers and hereby assigns to Employer (or to any agent,\nnominee or assignee, as requested by Employer) Employee’s right, title and interest to all such Work Product and all intellectual\nproperty rights related thereto.\nc. Employee agrees to fully disclose exclusively to Employer all Work Product. All disclosures of Work Product are to be\nmade in writing and promptly after the earlier of the making, conception, creation, discovery or reduction topractice of such Work\nProduct. For the avoidance of doubt, Employer shall own all Work Product regardless of whether Employee actually discloses such\nWork Product to Employer.\nPage 2\nd. During the period of Employee’s employment with Employer and at all times after the termination thereof, Employee\nagrees to provide all reasonably necessary assistance to Employer (including but not limited to testifying in any proceedings or suit,\nand executing any and all applications, assignments, or other documents or instruments): (1) in connection with Employer seeking to\nprotect any Work Product, including but not limited to the preparation, filing and/or prosecution of any patent applications,\ntrademarks or trade names or copyrights in the United States and any foreign country (as well as any state or other subdivision\nthereof); and the assertion of any such patents, trademarks, trade names or copyrights against a third party; and/or (2) to vest\nEmployer (and its successors and assigns) with all right, title and interest in the Work Product. Should Employee fail or refuse to\nprovide such assistance and/or execute any such document, Employee hereby irrevocably appoints Employer as its attorney-in-fact to\nprepare and/or execute such documents in the name of Employee and on his/her behalf, and to institute and prosecute any\nproceedings as FARO may deem necessary or appropriate to secure, protect, or enforce the Work Product.\ne. Employee represents and warrants that there are no ideas, products, formulas, methods, plans, developments,\nimprovements or patentable inventions in any way related to the Business which Employee desires to exclude from the operation of\nthis Agreement, except those, if any, designated by a patent number, application serial number or brief description where no\napplication has been filed, on the list attached hereto as Exhibit A and signed by Employee and Employer.\nf. Employer allows certain of its employees to have access to the following on-line services: Microsoft Exchange, all\nFARO servers, and the Internet. Employee shall use such services in connection with the Business and in accordance with FARO\npolicies and procedures, as they may change from time to time, which limit use of such services for personal reasons or other\npurposes not related to the Business. Furthermore, Employee is advised that under certain circumstances transmission of data or\nmessages on the Internet or through Internet e-mail is not secure and that the transmission of Confidential Information on the Internet\nor through Internet e-mail must comply with Employer-established appropriate safeguards against the interception or misdelivery of\nsuch information including, but not limited to the establishment of firewalls, encryption methods, or other technology that will\nprevent the unintended interception of data transmission by third parties on the Internet or any other on-line service.\ng. The foregoing obligations of confidentiality shall cease to apply to such parts of the Confidential Information if the\ninformation becomes general public knowledge through no fault of Employee or if Employee has the prior written permission of\nFARO.\nh. Upon termination of employment for whatever reason, Employee represents, warrants, covenants and agrees to deliver\nto Employer at Employer ’s offices in Lake Mary, Florida, all Confidential Information (including but not limited to all books,\nrecords, products, formulas, manuals, letters, notes, memoranda, notebooks, sketches, drawings, plans, equipment, computer files and\nspreadsheets, and all other documents or materials that comprise Confidential Information, and also all copies of any of the\nforegoing), which are in Employee’s or his agents’ or affiliates’ possession or control, and Employee specifically agrees that\nEmployee shall not retain any copies or reproductions of such Confidential Information.\n5. Non-Competition and Non-Solicitation. If a “Non-Competition and Non-Solicitation Agreement” is attached hereto, the Employee\nagrees to the terms thereof, and such Non-Competition and Non-Solicitation Agreement is hereby incorporated into and made part of\nthis Agreement.\nSuch Addendum is\nis not\nattached.\n6. Remedies: The failure of the Employee to comply with the terms of this Agreement shall be cause for immediate dismissal from\nemployment, and in addition Employer shall have the following remedies:\na. Indemnification. Employee hereby agrees to indemnify the Employer in respect of any and all claims, losses, costs,\nliabilities and expenses (including reasonable attorneys’ and legal assistants’ fees) directly or indirectly resulting from or arising out\nof any breach of this Agreement, including for appeals.\nb. Injunctive Relief. Employee admits and agrees that Employee’s breach of the Agreement, including the confidentiality\nrestrictions and, if applicable, the non-compete and non-solicitation restrictions would result in irreparable harm to Employer, and\nthat Employer ’s remedy at law for such a breach will be inadequate. Accordingly, it is agreed that Employer shall be entitled, upon\napplication to a court of competent jurisdiction, to obtain injunctive relief to enforce the provisions of this Agreement, which\ninjunctive relief shall be in addition to any other rights or remedies available to Employer. In any action or\nPage 3\nproceeding by Employer to obtain a temporary restraining order and/or preliminary injunction, Employee hereby agrees to waive the\nnecessity of the Employer’s posting an injunction bond in order to obtain the temporary restraining order and/or prelimin ary\ninjunction. Employee also agrees that he or she shall be responsible for all damages incurred by Employer due to any breach of the\nrestrictive covenants contained in this Agreement. If Employer ’s action for a temporary restraining order and/or motion for\npreliminary injunction is granted in whole or in part and Employer is ultimately unsuccessful in obtaining a permanent injunction to\nenforce the covenant, Employee hereby waives any and all rights he or she may have against the Employer for any injuries or\ndamages, including consequential damages, sustained by Employee and arising directly or indirectly from the issuance of the\ntemporary restraining order and/or preliminary injunction.\nc. Other Remedies. In addition to injunctive relief, FARO shall be entitled to any other remedy available in law or equity\nby reason of Employee’s breach or threatened breach of the restrictions contained herein.\nd. Recovery of Attorneys’ Fees and Costs. If Employer engages the services of an attorney or any other third party or in\nany way initiates legal action to enforce its rights under this Agreement and Employer prevails in its legal action, Employee agrees to\npay to the Employer all costs and expenses incurred by Employer relating to the enforcement of this Agreement (including reasonable\nattorneys’ and legal assistants’ fees before, at, and after trial and in appellate, bankruptcy and probate proceedings).\n7. Governing Law. This Agreement shall be governed by and construed according to the laws of the State of Florida, without regard to\nits conflicts of law principles.\n8. Venue and Forum Selection Clause; Consent to Jurisdiction. Any action at law, suit in equity, or other judicial proceeding arising\nout of or related to this Agreement shall be instituted and maintained in the Courts in and for Orange County, Florida. Each party\nwaives the right to change venue. Employee agrees to exclusively submit to personal jurisdiction in the federal and state courts in or\nfor Orange County, Florida and no other place. Employee agrees that any action at law, suit in equity, or other judicial proceeding to\nenforce this Agreement, as well as any action at law, suit in equity, or other judicial proceeding relating to or arising out of this\nAgreement, shall be filed only in: (a) the United States District Court for the Middle District of Florida, Orlando Division; or (b) the\nBusiness Court of the Ninth Judicial Circuit Court of Orange County, Florida. With respect to any such court action, Employee\nhereby (a) irrevocably submits to the personal jurisdiction of such courts; (b) consents to service of process; (c) consents to venue;\nand (d) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction,\nservice of process, or venue. Both parties hereto further agree that the Business Court of the Ninth Judicial Circuit Court of Orange\nCounty, Florida and the United States District Court for the Middle District of Florida, Orlando Division, are convenient forums for\nany dispute that may arise herefrom and that neither party shall raise as a defense that such courts are not convenient forums.\n9. Assignment of Rights. FARO has the right to assign or transfer this Agreement, including any of its rights hereunder to any assignee\nor successor of FARO, which assignee or successor is then expressly authorized to enforce the terms of this Agreement. This\nAgreement is personal to the Employee and not assignable or transferable by Employee and any attempt to do so shall be void.\n10. Modification. This Agreement contains the entire Agreement of the parties concerning the subject matter hereof. This Agreement\nshall not be amended except by a writing signed by both FARO and Employee.\n11. Waiver. No delay or failure by Employer in exercising any of its rights, remedies, powers, or privileges hereunder, at law or in\nequity, and no course of dealing between Employer and Employee or any other person shall be deemed to be a waiver by Employer of\nany such rights, remedies, powers, or privileges, even if such delay or failure is continuo us or repeated, nor shall any single or partial\nexercise of any right, remedy, power, or privilege preclude any other or further exercise thereof by Employer or the exercise of any\nother right, remedy, power, or privilege by Employer.\n12. Effect of Prior Agreements. Except as otherwise provided in this Section, this Agreement, including the exhibits hereto, embodies\nthe entire agreement and understanding of Employer and Employee in respect of the matters set forth herein and supersedes all prior\nagreements, representations, warranties, promises, covenants, arrangements, communications and understandings, oral or written,\nexpress or implied, between the parties with respect to such transactions. If this Agreement is held to be void or unenforceable for\nany reason, then the terms and provisions of any prior version of this “Intellectual Property and Confidentiality Agreement”\n(including any Non-Competition and Non-Solicitation Addendum) signed by Employee shall remain in full force and effect.\n13. Construction. The parties intend that this Agreement provides FARO with the maximum protection allowed by law. Accordingly, if a\ncourt determines that any restrictions of this Agreement are unenforceable because they are overly broad or\nPage 4\nnot reasonably necessary to protect FARO’s legitimate business interests, the parties agree that the Court should interpret and enforce\nsuch restrictions in the manner necessary to provide FARO with the maximum protection allowed by law. The covenants set forth in\nthis Agreement shall be considered and construed as separate and independent covenants. The existence of any claim or cause of\naction against of the Employee against Employer shall not constitute a defense to enforcement by Employer of any of the terms and\nconditions of this Agreement. Should any part or provision of any covenant be held invalid, void or unenforceable in any court of\ncompetent jurisdiction, such invalidity, voidness or unenforceability shall not render invalid, void or unenforceable any other part or\nprovision of this Agreement.\n14. Miscellaneous. When used herein, one gender means any gender. The term “I”, “me” or “mine” means the Employee. Any use of the\nsingular shall include plural and vice versa. Use of the word “shall” means such action is mandatory. The title of this Agreement and\nthe paragraph headings are used for the purpose of convenience only and shall not be used to interpret or explain any portion of the\ntext hereof.\n15. At-Will Employment. Notwithstanding anything to the contrary, Employee shall at all times be an employee-at-will. This\nAgreement is not intended to create a contract of employment between FARO and Employee. FARO maintains its policy of\nemployment-at-will.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 5\nNON-COMPETITION AND NON-SOLICITATION ADDENDUM\nTO INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nEmployee hereby further covenants and agrees to the following:\nA. Acknowledgment.\nEmployee acknowledges and agrees that, solely as a result of Employee’s employment with FARO and over the course of Employee’s\nemployment with FARO, Employee will: (1) be provided with special, unique, and extraordinary training, education and experience related to the\nBusiness; (2) be exposed to and/or in a position to generate Confidential Information of FARO; and (3) as a Sales Employee (as defined below),\ngenerate customer goodwill on behalf of FARO. Employee further acknowledges and agrees that FARO makes use of its Confidential\nInformation throughout the world and invests significant time and money, including Employee’s salary, to provide Employee with such special,\nunique, and extraordinary training, education and experience related to the Business and to generate customer goodwill on behalf of FARO, all of\nwhich are legitimate business interests of FARO. Employee further acknowledges and agrees that the restrictions in this Addendum are\nreasonable and necessary to allow FARO to protect its legitimate business interests. In consideration of the foregoing and of the benefits\ngenerally provided to the Employee by Employer, and in connection with FARO’s protection of its legitimate business interests, Employee agrees\nto abide and be bound by the restrictions of this Addendum, which restrictions are intended by the parties to extend to any and all activities of the\nEmployee, whether as an independent contractor, partner or joint venturer, or as an officer, director, stockholder, agent, employee or salesman for\nany person, firm, partnership, corporation or other entity, or otherwise.\nB. Additional Definitions.\n“FARO Competitor” means (i) any business or enterprise that provides goods and/or services similar to or competitive with FARO (each such\nbusiness or enterprise, a “Competitor”), including, without limitation, those persons or entities identified on Schedule 1 as current competitors of\nFARO as of the date hereof or (ii) any of such Competitor’s subsidiaries, affiliates, agents or distributors, irrespective or whether the subsidiary,\naffiliate, agent or distributor itself provides goods and/or services similar to or competitive with FARO. As used in this definition, “affiliate”\nincludes any entity, business or enterprise that, directly or indirectly, controls a Competitor or is under common control through another person or\nentity with a Competitor. The terms “controls,” “controlled by,” and “under common control” mean, when used with respect to any specified\nlegal entity, the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting\nsecurities, by contract or otherwise.\n“Restricted Period” means the term of Employee’s employment with FARO and for a period of twenty-four months after the date Employee’s\nemployment with FARO is terminated for any reason.\n“Sales Employee” means any Employee that deals with Customers and Prospective Customers with the intention of producing sales and\nrepresents FARO with respect to such Customers and Prospective Customers within a designated geographic territory.\nC. Non-Competition.\nIn order to protect FARO’s Trade Secret and Confidential Information, third-party goodwill and other legitimate business interests,\nEmployee acknowledges and agrees that during the Restricted Period, Employee will not, without FARO’s express written permission, directly or\nindirectly, assist, be employed by, consult with, or provide services to any FARO Competitor. Employee understands and agrees that, during the\nRestricted Period, he is and will be subject to the restrictions set forth in this Paragraph C anywhere within the geographic boundaries of the\ncontinental United States; provided, however, that Sales Employees shall be subject to the restrictions set forth in this Paragraph C during the\nRestricted Period within the geographic territory that the Employee represented for the Employer within the twenty-four (24) months prior to the\ntermination of employment.\nPage 6\nD. Non-Solicitation.\nDuring the Restricted Period, Employee shall not, without the prior written permission of Employer, directly or indirectly, for himself or on\nbehalf of any other person or entity, (i) solicit, call upon, encourage or contact, or attempt to solicit, call upon, encourage or contact any\nCustomer or Prospective Customer of the Employer for purposes of providing products or services competitive with the Business or causing such\nperson or entity to terminate their business relationship with Employer or (ii) accept business from or provide goods or services to any Customer\nor Prospective Customer of the Employer.\nE. Non-Recruitment.\nDuring the Restricted Period, Employee shall not, directly or indirectly, without the prior written permission of Employer, solicit or induce,\nor attempt to solicit or induce, any employee of Employer to terminate his or her relationship with Employer and/or to enter into an employment\nor agency relationship with Employee or with any other person or entity with whom Employee is affiliated, provided that the restriction in this\nsection shall apply only to employees of Employer with whom Employee worked by virtue of and during his or her employment with Employer.\nF. Miscellaneous.\na. The period of time during which Employee is prohibited from engaging in certain business practices under this Addendum shall be\nextended by the length of time during which Employee is in breach of such covenants.\nb. It is understood by and between the parties hereto that the restrictive covenants set forth in this Addendum hereof are essential\nelements of the employment arrangement between Employee and Employer, and that but for such covenants, Employer would not have agreed to\nhire Employee. The existence of any claim or cause of action of the Employee against Employer shall not constitute a defense to the enforcement\nby Employer of such covenants. The restrictive covenants, and rights and protections provided by the restrictive covenants, are assignable by\nEmployer, but not by Employee.\nc. The covenants set forth in this Agreement shall be considered and construed as separate and independent covenants. Should any\npart or provision of any covenant be held invalid, void or unenforceable in any court of competent jurisdiction, such invalidity, voidness or\nunenforceability shall not render invalid, void or unenforceable any other part or provision of this Agreement. If any portion of the foregoing\nprovisions is found to be invalid or unenforceable by a court of competent jurisdiction because its duration, the territory, the definition of\nactivities or the definition of information covered is considered to be invalid or unreasonable in scope, the invalid or unreasonable term shall be\nredefined, or a new enforceable term provided, such that the intent of Employer and Employee in agreeing to the provisions of this Agreement\nwill not be impaired and the provision in question shall be enforceable to the fullest extent of the applicable laws.\nd. Employee shall, no later than the last day of his or her employment, deliver to Employer at its offices in Lake Mary, Florida a\nwritten, signed and notarized confirmation that Employee is aware of his or her obligations under this Non-Competition and Non-Solicitation\nAddendum and that Employee will comply with its terms.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nPage 7\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 8
b928d4e298ac71de38b7f167e6f056de.pdf	effective_date jurisdiction party term	EX-10 .2 3 ex10-2 .htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) dated as of November 8,\n2016, but effective as of July 14, 2016 (the “Effective Date”) (the “Effective Date”), by and between Wizard World, Inc., a Delaware corporation\nwith a principal place of business at 662 N. Sepulveda Blvd., Suite 300, Los Angeles, CA 90049 (“Employer”), and Randall S. Malinoff, an\nindividual and resident of the State of California with an address at 25262 Prado De La Puma, Calabasas, CA 91302 (“Employee” and together\nwith Employer, the “Parties” and each, a “Party”).\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information.\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee’s\nemployment for any reason, Employee shall not, directly or indirectly, for Employee’s benefit or the benefit of a third party, (i) induce or attempt\nto induce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee’s period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%) of the equity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination of\nEmployee’s employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information.\n(a) For purposes of this Agreement, “Proprietary Information” shall mean any information belonging to the business of Employer that\nhas not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be limited to)\ninformation encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer programs\n(including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-how or ideas\nand confidential information belonging to Employer and Employer’s customers or clients. Employee agrees to regard and preserve as\nconfidential all Proprietary Information whether Employee has such Proprietary Information in Employee’s memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, “Proprietary Information” shall not include information that (i) is disseminated to the public at no\nfault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee’s benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee’s\nemployment by Employer or thereafter, except as required by the conditions of Employee’s employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the rights to\nsuch work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be inadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee’s experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning a\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany’s legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action of\nEmployee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee’s employment for\nany reason.\n8. Governing Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor to Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN WITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ John D. Maatta\nJohn D. Maatta\nPresident & Chief Executive Officer\nEMPLOYEE\n/s/ Randall S. Malinoff\nRandall S. Malinoff	EX-10.2 3 ex10-2.htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) dated as of November 8,\n2016, but effective as of July 14, 2016 (the “Effective Date”) (the “Effective Date”), by and between Wizard World, Inc., a Delaware corporation\nwith a principal place of business at 662 N. Sepulveda Blvd., Suite 300, Los Angeles, CA 90049 (“Employer”), and Randall S. Malinoff, an\nindividual and resident of the State of California with an address at 25262 Prado De La Puma, Calabasas, CA 91302 (“Employee” and together\nwith Employer, the “Parties” and each, a “Party”).\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information.\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee’s\nemployment for any reason, Employee shall not, directly or indirectly, for Employee’s benefit or the benefit of a third party, (i) induce or attempt\nto induce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee’s period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%) of the equity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination of\nEmployee’s employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information.\n(a) For purposes of this Agreement, “Proprietary Information” shall mean any information belonging to the business of Employer that\nhas not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be limited to)\ninformation encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer programs\n(including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-how or ideas\nand confidential information belonging to Employer and Employer’s customers or clients. Employee agrees to regard and preserve as\nconfidential all Proprietary Information whether Employee has such Proprietary Information in Employee’s memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, “Proprietary Information” shall not include information that (i) is disseminated to the public at no\nfault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee’s benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee’s\nemployment by Employer or thereafter, except as required by the conditions of Employee’s employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the rights to\nsuch work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving_Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be inadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee’s experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning a\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany’s legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action of\nEmployee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee’s employment for\nany reason.\n8. Governing Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor to Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN WITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ John D. Maatta\nJohn D. Maatta\nPresident & Chief Executive Officer\nEMPLOYEE\n/s/ Randall S. Malinoff\nRandall S. Malinoff	EX-10.2 3 ex10-2.htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT ("Agreement") dated as of November 8,\n2016, but effective as of July 14, 2016 (the "Effective Date") (the "Effective Date") by and between Wizard World, Inc., a Delaware corporation\nwith a principal place of business at 662 N. Sepulveda Blvd., Suite 300, Los Angeles, CA 90049 ("Employer"), and Randall S. Malinoff, an\nindividual and resident of the State of California with an address at 25262 Prado De La Puma, Calabasas, CA 91302 ("Employee" and together\nwith Employer, the "Parties" and each, a "Party").\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee's\nemployment\nfor\nany\nreason,\nEmployee\nshall\nnot,\ndirectly\nor\nindirectly,\nfor\nEmployee's\nbenefit\nor\nthe\nbenefit\nof\na\nthird\nparty,\n(i)\ninduce\nor\nattempt\nto\ninduce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee's period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%)\nof\nthe\nequity\nsecurities\nof\na\npublicly\nheld\ncompany,\nduring\nthe\nperiod\ncommencing\non\nthe\ndate\nhereof\nand\nending\nupon\nthe\ntermination\nof\nEmployee's employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information\n(a) For purposes of this Agreement, "Proprietary Information" shall mean any information belonging to the business of Employer that\nhas not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be limited to)\ninformation encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer programs\n(including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-how or ideas\nand confidential information belonging to Employer and Employer's customers or clients. Employee agrees to regard and preserve as\nconfidential all Proprietary Information whether Employee has such Proprietary Information in Employee's memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, "Proprietary Information" shall not include information that (i) is disseminated to the public at\nno\nfault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee's benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee's\nemployment by Employer or thereafter, except as required by the conditions of Employee's employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the rights\nto\nsuch work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving_Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer\nin\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be\ninadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee's experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning\na\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany's legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability.. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action of\nEmployee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee's employment for\nany reason\n8.\nGoverning Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor\nto Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN\nWITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ John D. Maatta\nJohn D. Maatta\nPresident & Chief Executive Officer\nEMPLOYEE\n/s/ Randall S. Malinoff\nRandall S. Malinoff	EX-10 .2 3 ex10-2 .htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) dated as of November 8,\n2016, but effective as of July 14, 2016 (the “Effective Date”) (the “Effective Date”), by and between Wizard World, Inc., a Delaware corporation\nwith a principal place of business at 662 N. Sepulveda Blvd., Suite 300, Los Angeles, CA 90049 (“Employer”), and Randall S. Malinoff, an\nindividual and resident of the State of California with an address at 25262 Prado De La Puma, Calabasas, CA 91302 (“Employee” and together\nwith Employer, the “Parties” and each, a “Party”).\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information.\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee’s\nemployment for any reason, Employee shall not, directly or indirectly, for Employee’s benefit or the benefit of a third party, (i) induce or attempt\nto induce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee’s period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%) of the equity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination of\nEmployee’s employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information.\n(a) For purposes of this Agreement, “Proprietary Information” shall mean any information belonging to the business of Employer that\nhas not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be limited to)\ninformation encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer programs\n(including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-how or ideas\nand confidential information belonging to Employer and Employer’s customers or clients. Employee agrees to regard and preserve as\nconfidential all Proprietary Information whether Employee has such Proprietary Information in Employee’s memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, “Proprietary Information” shall not include information that (i) is disseminated to the public at no\nfault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee’s benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee’s\nemployment by Employer or thereafter, except as required by the conditions of Employee’s employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the rights to\nsuch work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be inadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee’s experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning a\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany’s legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action of\nEmployee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee’s employment for\nany reason.\n8. Governing Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor to Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN WITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ John D. Maatta\nJohn D. Maatta\nPresident & Chief Executive Officer\nEMPLOYEE\n/s/ Randall S. Malinoff\nRandall S. Malinoff
b960e85adabccfba6d758948a1ecc804.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm SEVERANCE AND NONCOMPETITION AGREEMENT WITH RAJEEV MEHTA\nExhibit 10.1\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nSEVERANCE AND NONCOMPETITION AGREEMENT\nIn consideration of the employment of the undersigned (“Employee”), Cognizant Technology Solutions Corporation, including any of its\naffiliates or direct or indirect subsidiaries (collectively, the “Company”), and as a condition of continued Employment, Employee agrees as follows:\n1. Ownership and Non-disclosure of Proprietary Information:\nThe Employee acknowledges that all Proprietary Information, as defined below, is the exclusive property of the Company or the party that disclosed\nor delivered the same to the Company. Specifically, Employee agrees that all Proprietary Information developed as a direct or indirect result of\nEmployee’s efforts during any period of employment with the Company shall be and shall remain the exclusive property of the Company, and the\nEmployee shall have no ownership interest therein. To the extent Employee may have any interest in such developed Proprietary Information,\nEmployee assigns such interest to the Company.\nTo the extent a copyright may be obtained in any Proprietary Information, (i) that copyright shall be considered the property of the Company,\n(ii) the Proprietary Information shall be “works made for hire” under the Copyright Act of 1976 (the “Copyright Act”), the copyright for those works\nshall be the sole property of the Company and the Company shall be the sole author of such works within the meaning of the Copyright Act,\n(iii) Employee hereby assigns to the Company any of his rights to any such copyrightable material and (iv) Employee expressly disclaims any and all\ninterest he may have in the works. In the event that the copyright to any work may not be the property of the Company by operation of law,\nEmployee irrevocably assigns to the Company all right, title and interest in the work, including all so-called “moral rights.” If the moral rights\ncannot be assigned under the laws of a country where such rights exist, Employee hereby waives all of his moral rights and consents to any action of\nthe Company that would violate such rights in the absence of such consent.\nWhile employed by the Company and for a period of three (3) years thereafter, Employee shall not use or disclose any Proprietary Information,\ndirectly or indirectly, except as authorized by the Company in connection with Employee’s assigned duties. The foregoing notwithstanding,\nEmployee shall not at any time use or disclose, directly or indirectly, any of the Proprietary Information constituting Trade Secrets of the Company,\nas defined below, except as authorized by the Company in connection with Employee’s assigned duties.\n2. Definitions:\n“Proprietary Information,” as referred to herein, includes all of the following information and material, whether or not reduced to writing and\nwhether or not patentable, that Employee during any period of employment with the Company has access to or develops in whole or in part as a\ndirect or indirect result of such employment or through the use of any of the Company’s facilities or resources:\n(i) application, operating system, communication and other computer software, including, without limitation, all source and object code,\nflow charts, algorithms, coding sheets, routines, sub-routines, compilers, assemblers, design concepts and related documentation and\nmanuals;\n(ii) production processes, marketing techniques, purchasing information, fee lists, licensing policies, quoting procedures, financial\ninformation, employee names and job descriptions, customer and prospective customer names and requirements, data and other\ninformation or material relating to the manner in which any customer, prospective customer or the Company does business;\n(iii) discoveries, concepts and ideas (including, but not limited to, the nature and results of research and development activities),\nprocesses, formulae, techniques, “know-how,” designs, drawings and specifications;\n(iv) any other information or material relating to the business or activities of the Company which is not generally known to others\nengaged in similar businesses or activities;\n(v) all inventions and ideas which are derived from or relate to Employee’s access to or knowledge of any of the information or material\ndescribed herein; and\n(vi) any of the information or material described herein which is the property of any other person or firm which has revealed or delivered\nsuch information or material to the Company pursuant to a contractual relationship with the Company or otherwise in the course of the\nCompany’s business.\n“Proprietary Information” shall not include any information or material of the type described herein to the extent that such information or\nmaterial is or becomes publicly known through no act on Employee’s part. “Trade Secrets,” as referred herein, include all of the information and\nmaterial described in paragraphs (i), (iii), (v) and (vi) above. The failure to mark any of the Proprietary Information as confidential shall not affect its\nstatus as Proprietary Information or Trade Secrets.\n3. Records:\nAll notes, data, reference material, sketches, drawings, memoranda and records in any way relating to any of the Proprietary Information or to\nthe Company’s business shall belong exclusively to the Company, and at the request of the Company or, absent such a request, upon the termination\nof Employee’s employment with the Company, Employee agrees to turn over to the Company all such materials and copies thereof in Employee’s\npossession.\n4. Injunctive Relief:\nEmployee understands and agrees that the Company shall suffer irreparable harm if Employee breaches any of Employee’s obligations under\nthis Agreement and that monetary damages shall be inadequate to compensate the Company for any breach hereof. Accordingly, Employee agrees\nthat, in addition to any other remedies or rights, the Company shall have the right to obtain an injunction to enforce the terms of this Agreement.\n5. Prior Employer:\nEmployee represents that Employee’s performance as an employee of the Company will not breach any employment agreement nor any\nagreement to keep in confidence any trade secret or confidential or proprietary information of a former employer. Employee has not brought any\ntrade secrets or confidential or proprietary information of a former employer to the Company. Employee will not disclose nor use in the performance\nof Employee’s work with the Company any trade secrets or confidential or proprietary information without authorization from the former employer.\n6. Non-Solicitation:\nUntil one (1) year after the termination of Employee’s employment with the Company, Employee will not solicit or otherwise encourage others\nto leave the Company’s employment.\n7. Non-Competition:\nEmployee recognizes and acknowledges that his services to the Company are of importance to its continued economic success and growth. In\nrecognition of this fact, and in consideration of the employment by the Company and the salary and other compensation and benefits paid therefore,\nthe Employee agrees that he will not, directly or indirectly, during his period of employment and for a period of one (1) year after any termination of\nemployment, invest in, engage in or be associated with, on the Employee’s own behalf or in the service of another, as an employee, consultant,\naffiliate or otherwise in the ownership or operation of, any enterprise that manufactures or sells any product or service that is competitive with any\nproduct or service sold, provided or distributed by the Company on the date hereof or during the Employee’s employment in the Territory (as defined\nbelow). Notwithstanding the foregoing, the Employee may own less than 1% of the outstanding voting stock of a corporation otherwise coming\nwithin the restrictions of the previous sentence, the securities of which are listed on a national securities exchange or are traded in the Nasdaq Stock\nMarket if the Employee does not participate in the management of, perform services for or have any other beneficial interest in, such corporation. In\nthe event this covenant is more restrictive than permitted by applicable law, this covenant shall be limited to the extent permitted by law.\nFor purposes of the foregoing, the Territory shall mean the entire world, including, but not limited to, the states of Alabama, Alaska, Arizona,\nArkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,\nMaine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New\nMexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota,\nTennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, the District of Columbia, the countries of India and\nCanada, and the countries within the European Union.\n8. Severance Upon Termination Without Cause:\nIn the event that the Employee’s employment with the Company is terminated by the Company without Cause (as hereinafter defined), the\nEmployee shall be entitled to receive a severance payment equal to (x) the Employee’s then-current base salary for the one-year period\ncommencing on the effective date of such termination without Cause and (y) the Employee’s full bonus for the year in which the termination occurs\n(assuming achievement of 100% of applicable performance targets), payable, in each case, in the same amounts and at the same intervals as the base\nsalary and bonus would have otherwise been paid prior to such termination without Cause.\nFor purposes hereof, the following shall constitute “Cause”: (i) willful malfeasance or willful misconduct by the Employee in connection with\nhis employment, (ii) continuing failure to perform such duties as are requested by the Board of Directors of the Company, (iii) failure by the\nEmployee to observe material policies of the Company applicable to the Employee or (iv) the commission by the Employee of (x) any felony or\n(y) any misdemeanor involving moral turpitude.\n9. Acceleration of Options upon a Change in Control:\nIn the event of a Change in Control (as defined in the Company’s Key Employees’ Stock Option Plan) of the Company, all options to purchase\nClass A Common Stock of the Company then held by the Employee shall immediately vest in full without regard to the vesting provisions thereof\nand shall thereafter be exercisable for the full number of shares of Class A Common Stock subject to such options, subject to all other terms and\nconditions thereof (other than any vesting provisions).\n10. General:\nThis document contains the entire understanding between the Company and the Employee with respect to its subject matter. It may not be\nextended, varied, modified, supplemented or otherwise changed except by a written agreement signed by both the Employee and the Company. A\nwaiver by the Company of any right or provision under this Agreement shall not operate or be construed as a waiver of such right or provision at any\nother time. If a court finds a portion of this Agreement unenforceable, such findings shall not affect enforcement of the other portions of this\nAgreement. Any portion found to be unenforceable shall be construed to be reformed to extend as far as is enforceable. This Agreement shall inure\nto the benefits of and may be enforced by the successors and assigns of the Company. This agreement is entered into under the laws of the State of\nNew York and shall be governed by the laws of such State, excluding its conflicts of laws rules.\nI have read, understood and agree to the above terms and conditions.\nRAJEEV MEHTA\nSignature\n/s/ Rajeev Mehta\nName:\nRajeev Mehta\nDate:\nJuly 23, 2007\nAGREED AND ACCEPTED:\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nBy:\n/s/ Steven Schwartz	EX-10.1 2 dex101.htm SEVERANCE AND NONCOMPETITION AGREEMENT WITH RAJEEV MEHTA\nExhibit 10.1\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nSEVERANCE AND NONCOMPETITION AGREEMENT\nIn consideration of the employment of the undersigned (“Employee”), Cognizant Technology Solutions Corporation, including any of its\naffiliates or direct or indirect subsidiaries (collectively, the “Company”), and as a condition of continued Employment, Employee agrees as follows:\n1. Ownership and Non-disclosure of Proprietary Information:\nThe Employee acknowledges that all Proprietary Information, as defined below, is the exclusive property of the Company or the party that disclosed\nor delivered the same to the Company. Specifically, Employee agrees that all Proprietary Information developed as a direct or indirect result of\nEmployee’s efforts during any period of employment with the Company shall be and shall remain the exclusive property of the Company, and the\nEmployee shall have no ownership interest therein. To the extent Employee may have any interest in such developed Proprietary Information,\nEmployee assigns such interest to the Company.\nTo the extent a copyright may be obtained in any Proprietary Information, (i) that copyright shall be considered the property of the Company,\n(ii) the Proprietary Information shall be “works made for hire” under the Copyright Act of 1976 (the “Copyright Act”), the copyright for those works\nshall be the sole property of the Company and the Company shall be the sole author of such works within the meaning of the Copyright Act,\n(iii) Employee hereby assigns to the Company any of his rights to any such copyrightable material and (iv) Employee expressly disclaims any and all\ninterest he may have in the works. In the event that the copyright to any work may not be the property of the Company by operation of law,\nEmployee irrevocably assigns to the Company all right, title and interest in the work, including all so-called “moral rights.” If the moral rights\ncannot be assigned under the laws of a country where such rights exist, Employee hereby waives all of his moral rights and consents to any action of\nthe Company that would violate such rights in the absence of such consent.\nWhile employed by the Company and for a period of three (3) years thereafter, Employee shall not use or disclose any Proprietary Information,\ndirectly or indirectly, except as authorized by the Company in connection with Employee’s assigned duties. The foregoing notwithstanding,\nEmployee shall not at any time use or disclose, directly or indirectly, any of the Proprietary Information constituting Trade Secrets of the Company,\nas defined below, except as authorized by the Company in connection with Employee’s assigned duties.\n2. Definitions:\n“Proprietary Information,” as referred to herein, includes all of the following information and material, whether or not reduced to writing and\nwhether or not patentable, that Employee during any period of employment with the Company has access to or develops in whole or in part as a\ndirect or indirect result of such employment or through the use of any of the Company’s facilities or resources:\n(i) application, operating system, communication and other computer software, including, without limitation, all source and object code,\nflow charts, algorithms, coding sheets, routines, sub-routines, compilers, assemblers, design concepts and related documentation and\nmanuals;\n(ii) production processes, marketing techniques, purchasing information, fee lists, licensing policies, quoting procedures, financial\ninformation, employee names and job descriptions, customer and prospective customer names and requirements, data and other\ninformation or material relating to the manner in which any customer, prospective customer or the Company does business;\n(iii) discoveries, concepts and ideas (including, but not limited to, the nature and results of research and development activities),\nprocesses, formulae, techniques, “know-how,” designs, drawings and specifications;\n(iv) any other information or material relating to the business or activities of the Company which is not generally known to others\nengaged in similar businesses or activities;\n(v) all inventions and ideas which are derived from or relate to Employee’s access to or knowledge of any of the information or material\ndescribed herein; and\n(vi) any of the information or material described herein which is the property of any other person or firm which has revealed or delivered\nsuch information or material to the Company pursuant to a contractual relationship with the Company or otherwise in the course of the\nCompany’s business.\n“Proprietary Information” shall not include any information or material of the type described herein to the extent that such information or\nmaterial is or becomes publicly known through no act on Employee’s part. “Trade Secrets,” as referred herein, include all of the information and\nmaterial described in paragraphs (i), (iii), (v) and (vi) above. The failure to mark any of the Proprietary Information as confidential shall not affect its\nstatus as Proprietary Information or Trade Secrets.\n3. Records:\nAll notes, data, reference material, sketches, drawings, memoranda and records in any way relating to any of the Proprietary Information or to\nthe Company’s business shall belong exclusively to the Company, and at the request of the Company or, absent such a request, upon the termination\nof Employee’s employment with the Company, Employee agrees to turn over to the Company all such materials and copies thereof in Employee’s\npossession.\n4.  Injunctive Relief:\nEmployee understands and agrees that the Company shall suffer irreparable harm if Employee breaches any of Employee’s obligations under\nthis Agreement and that monetary damages shall be inadequate to compensate the Company for any breach hereof. Accordingly, Employee agrees\nthat, in addition to any other remedies or rights, the Company shall have the right to obtain an injunction to enforce the terms of this Agreement.\n5. Prior Employer:\nEmployee represents that Employee’s performance as an employee of the Company will not breach any employment agreement nor any\nagreement to keep in confidence any trade secret or confidential or proprietary information of a former employer. Employee has not brought any\ntrade secrets or confidential or proprietary information of a former employer to the Company. Employee will not disclose nor use in the performance\nof Employee’s work with the Company any trade secrets or confidential or proprietary information without authorization from the former employer.\n6. Non-Solicitation:\nUntil one (1) year after the termination of Employee’s employment with the Company, Employee will not solicit or otherwise encourage others\nto leave the Company’s employment.\n7.  Non-Competition:\nEmployee recognizes and acknowledges that his services to the Company are of importance to its continued economic success and growth. In\nrecognition of this fact, and in consideration of the employment by the Company and the salary and other compensation and benefits paid therefore,\nthe Employee agrees that he will not, directly or indirectly, during his period of employment and for a period of one (1) year after any termination of\nemployment, invest in, engage in or be associated with, on the Employee’s own behalf or in the service of another, as an employee, consultant,\naffiliate or otherwise in the ownership or operation of, any enterprise that manufactures or sells any product or service that is competitive with any\nproduct or service sold, provided or distributed by the Company on the date hereof or during the Employee’s employment in the Territory (as defined\nbelow). Notwithstanding the foregoing, the Employee may own less than 1% of the outstanding voting stock of a corporation otherwise coming\nwithin the restrictions of the previous sentence, the securities of which are listed on a national securities exchange or are traded in the Nasdaq Stock\nMarket if the Employee does not participate in the management of, perform services for or have any other beneficial interest in, such corporation. In\nthe event this covenant is more restrictive than permitted by applicable law, this covenant shall be limited to the extent permitted by law.\nFor purposes of the foregoing, the Territory shall mean the entire world, including, but not limited to, the states of Alabama, Alaska, Arizona,\nArkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,\nMaine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New\nMexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota,\nTennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, the District of Columbia, the countries of India and\nCanada, and the countries within the European Union.\n8.  Severance Upon Termination Without Cause:\nIn the event that the Employee’s employment with the Company is terminated by the Company without Cause (as hereinafter defined), the\nEmployee shall be entitled to receive a severance payment equal to (x) the Employee’s then-current base salary for the one-year period\ncommencing on the effective date of such termination without Cause and (y) the Employee’s full bonus for the year in which the termination occurs\n(assuming achievement of 100% of applicable performance targets), payable, in each case, in the same amounts and at the same intervals as the base\nsalary and bonus would have otherwise been paid prior to such termination without Cause.\nFor purposes hereof, the following shall constitute “Cause”: (i) willful malfeasance or willful misconduct by the Employee in connection with\nhis employment, (ii) continuing failure to perform such duties as are requested by the Board of Directors of the Company, (iii) failure by the\nEmployee to observe material policies of the Company applicable to the Employee or (iv) the commission by the Employee of (x) any felony or\n(v) any misdemeanor involving moral turpitude.\n9.  Acceleration of Options upon a Change in Control:\nIn the event of a Change in Control (as defined in the Company’s Key Employees’ Stock Option Plan) of the Company, all options to purchase\nClass A Common Stock of the Company then held by the Employee shall immediately vest in full without regard to the vesting provisions thereof\nand shall thereafter be exercisable for the full number of shares of Class A Common Stock subject to such options, subject to all other terms and\nconditions thereof (other than any vesting provisions).\n10. General:\nThis document contains the entire understanding between the Company and the Employee with respect to its subject matter. It may not be\nextended, varied, modified, supplemented or otherwise changed except by a written agreement signed by both the Employee and the Company. A\nwaiver by the Company of any right or provision under this Agreement shall not operate or be construed as a waiver of such right or provision at any\nother time. If a court finds a portion of this Agreement unenforceable, such findings shall not affect enforcement of the other portions of this\nAgreement. Any portion found to be unenforceable shall be construed to be reformed to extend as far as is enforceable. This Agreement shall inure\nto the benefits of and may be enforced by the successors and assigns of the Company. This agreement is entered into under the laws of the State of\nNew York and shall be governed by the laws of such State, excluding its conflicts of laws rules.\nI have read, understood and agree to the above terms and conditions.\nRAJEEV MEHTA\nSignature\n/s/ Rajeev Mehta\nName:\nRajeev Mehta\nDate:\nJuly 23, 2007\n \nAGREED AND ACCEPTED:\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nBy:\n/s/ Steven Schwartz	EX-10.1 2 dex101.htm SEVERANCE AND NONCOMPETITION AGREEMENT WITH RAJEEV MEHTA\nExhibit 10.1\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nSEVERANCE AND NONCOMPETITION AGREEMENT\nIn consideration of the employment of the undersigned ("Employee"), Cognizant Technology Solutions Corporation, including any of its\naffiliates or direct or indirect subsidiaries (collectively, the "Company"), and as a condition of continued Employment, Employee agrees as follows:\n1.\nOwnership and Non-disclosure of Proprietary Information:\nThe Employee acknowledges that all Proprietary Information, as defined below, is the exclusive property of the Company or the party that disclosed\nor delivered the same to the Company. Specifically, Employee agrees that all Proprietary Information developed as a direct or indirect result of\nEmployee's efforts during any period of employment with the Company shall be and shall remain the exclusive property of the Company, and the\nEmployee shall have no ownership interest therein. To the extent Employee may have any interest in such developed Proprietary Information,\nEmployee assigns such interest to the Company.\nTo the extent a copyright may be obtained in any Proprietary Information, (i) that copyright shall be considered the property of the Company,\n(ii) the Proprietary Information shall be "works made for hire" under the Copyright Act of 1976 (the "Copyright Act"), the copyright for those works\nshall be the sole property of the Company and the Company shall be the sole author of such works within the meaning of the Copyright Act,\n(iii) Employee hereby assigns to the Company any of his rights to any such copyrightable material and (iv) Employee expressly disclaims any and all\ninterest he may have in the works. In the event that the copyright to any work may not be the property of the Company by operation of law,\nEmployee irrevocably assigns to the Company all right, title and interest in the work, including all so-called "moral rights." If the moral rights\ncannot be assigned under the laws of a country where such rights exist, Employee hereby waives all of his moral rights and consents to any action\nof\nthe Company that would violate such rights in the absence of such consent.\nWhile employed by the Company and for a period of three (3) years thereafter, Employee shall not use or disclose any Proprietary Information,\ndirectly or indirectly, except as authorized by the Company in connection with Employee's assigned duties. The foregoing notwithstanding,\nEmployee shall not at any time use or disclose, directly or indirectly, any of the Proprietary Information constituting Trade Secrets of the Company,\nas defined below, except as authorized by the Company in connection with Employee's assigned duties.\n2. Definitions:\n"Proprietary Information," as referred to herein, includes all of the following information and material, whether or not reduced to writing and\nwhether or not patentable, that Employee during any period of employment with the Company has access to or develops in whole or in part as a\ndirect or indirect result of such employment or through the use of any of the Company's facilities or resources:\n(i) application, operating system, communication and other computer software, including, without limitation, all source and object code,\nflow charts, algorithms, coding sheets, routines, sub-routines, compilers, assemblers, design concepts and related documentation and\nmanuals;\n(ii) production processes, marketing techniques, purchasing information, fee lists, licensing policies, quoting procedures, financial\ninformation, employee names and job descriptions, customer and prospective customer names and requirements, data and other\ninformation or material relating to the manner in which any customer, prospective customer or the Company does business;\n(iii) discoveries, concepts and ideas (including, but not limited to, the nature and results of research and development activities),\nprocesses, formulae, techniques, "know-how," designs, drawings and specifications;\n(iv) any other information or material relating to the business or activities of the Company which is not generally known to others\nengaged in similar businesses or activities;\n(v)\nall inventions and ideas which are derived from or relate to Employee's access to or knowledge of any of the information or material\ndescribed herein; and\n(vi) any of the information or material described herein which is the property of any other person or firm which has revealed or delivered\nsuch information or material to the Company pursuant to a contractual relationship with the Company or otherwise in the course of the\nCompany's business.\n"Proprietary Information" shall not include any information or material of the type described herein to the extent that such information or\nmaterial is or becomes publicly known through no act on Employee's part. "Trade Secrets," as referred herein, include all of the information and\nmaterial described in paragraphs (i), (iii), (v) and (vi) above. The failure to mark any of the Proprietary Information as confidential shall not affect its\nstatus as Proprietary Information or Trade Secrets.\n3. Records:\nAll notes, data, reference material, sketches, drawings, memoranda and records in any way relating to any of the Proprietary Information or to\nthe Company's business shall belong exclusively to the Company, and at the request of the Company or, absent such a request, upon the termination\nof Employee's employment with the Company, Employee agrees to turn over to the Company all such materials and copies thereof in Employee's\npossession.\n4.\nInjunctive Relief:\nEmployee understands and agrees that the Company shall suffer irreparable harm if Employee breaches any of Employee's obligations under\nthis Agreement and that monetary damages shall be inadequate to compensate the Company for any breach hereof. Accordingly, Employee agrees\nthat, in addition to any other remedies or rights, the Company shall have the right to obtain an injunction to enforce the terms of this Agreement.\n5.\nPrior Employer:\nEmployee represents that Employee's performance as an employee of the Company will not breach any employment agreement nor any\nagreement to keep in confidence any trade secret or confidential or proprietary information of a former employer. Employee has not brought any\ntrade secrets or confidential or proprietary information of a former employer to the Company. Employee will not disclose nor use in the performance\nof Employee's work with the Company any trade secrets or confidential or proprietary information without authorization from the former employer.\n6. Non-Solicitation:\nUntil one (1) year after the termination of Employee's employment with the Company, Employee will not solicit or otherwise encourage others\nto leave the Company's employment.\n7. Non-Competition:\nEmployee recognizes and acknowledges that his services to the Company are of importance to its continued economic success and growth. In\nrecognition of this fact, and in consideration of the employment by the Company and the salary and other compensation and benefits paid therefore,\nthe Employee agrees that he will not, directly or indirectly, during his period of employment and for a period of one (1) year after any termination of\nemployment, invest in, engage in or be associated with, on the Employee's own behalf or in the service of another, as an employee, consultant,\naffiliate or otherwise in the ownership or operation of, any enterprise that manufactures or sells any product or service that is competitive with\nany\nproduct or service sold, provided or distributed by the Company on the date hereof or during the Employee's employment in the Territory (as defined\nbelow). Notwithstanding the foregoing, the Employee may own less than 1% of the outstanding voting stock of a corporation otherwise coming\nwithin the restrictions of the previous sentence, the securities of which are listed on a national securities exchange or are traded in the Nasdaq Stock\nMarket if the Employee does not participate in the management of, perform services for or have any other beneficial interest in, such corporation. In\nthe event this covenant is more restrictive than permitted by applicable law, this covenant shall be limited to the extent permitted by law.\nFor purposes of the foregoing, the Territory shall mean the entire world, including, but not limited to, the states of Alabama, Alaska, Arizona,\nArkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,\nMaine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New\nMexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota,\nTennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, the District of Columbia, the countries of India\nand\nCanada, and the countries within the European Union.\n8.\nSeverance Upon Termination Without Cause:\nIn the event that the Employee's employment with the Company is terminated by the Company without Cause (as hereinafter defined), the\nEmployee shall be entitled to receive a severance payment equal to (x) the Employee's then-current base salary for the one-year period\ncommencing on the effective date of such termination without Cause and (y) the Employee's full bonus for the year in which the termination occurs\n(assuming achievement of 100% of applicable performance targets), payable, in each case, in the same amounts and at the same intervals as the base\nsalary and bonus would have otherwise been paid prior to such termination without Cause.\nFor purposes hereof, the following shall constitute "Cause": (i) willful malfeasance or willful misconduct by the Employee in connection with\nhis\nemployment, (ii) continuing failure to perform such duties as are requested by the Board of Directors of the Company, (iii) failure by the\nEmployee to observe material policies of the Company applicable to the Employee or (iv) the commission by the Employee of (x) any felony or\n(y) any misdemeanor involving moral turpitude.\n9.\nAcceleration of Options upon a Change in Control:\nIn\nthe event of a Change in Control (as defined in the Company's Key Employees' Stock Option Plan) of the Company, all options to purchase\nClass A Common Stock of the Company then held by the Employee shall immediately vest in full without regard to the vesting provisions thereof\nand shall thereafter be exercisable for the full number of shares of Class A Common Stock subject to such options, subject to all other terms and\nconditions thereof (other than any vesting provisions).\n10. General:\nThis document contains the entire understanding between the Company and the Employee with respect to its subject matter. It may not\nbe\nextended, varied, modified, supplemented or otherwise changed except by a written agreement signed by both the Employee and the Company. A\nwaiver by the Company of any right or provision under this Agreement shall not operate or be construed as a waiver of such right or provision at any\nother time. If a court finds a portion of this Agreement unenforceable, such findings shall not affect enforcement of the other portions of this\nAgreement. Any portion found to be unenforceable shall be construed to be reformed to extend as far as is enforceable. This Agreement shall inure\nto the benefits of and may be enforced by the successors and assigns of the Company. This agreement is entered into under the laws of the State of\nNew York and shall be governed by the laws of such State, excluding its conflicts of laws rules.\nI have read, understood and agree to the above terms and conditions.\nRAJEEV MEHTA\nSignature\n/s/ Rajeev Mehta\nName:\nRajeev Mehta\nDate:\nJuly 23, 2007\nAGREED AND ACCEPTED:\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nBy:\n/s/ Steven Schwartz	EX-10.1 2 dex101.htm SEVERANCE AND NONCOMPETITION AGREEMENT WITH RAJEEV MEHTA\nExhibit 10.1\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nSEVERANCE AND NONCOMPETITION AGREEMENT\nIn consideration of the employment of the undersigned (“Employee”), Cognizant Technology Solutions Corporation, including any of its\naffiliates or direct or indirect subsidiaries (collectively, the “Company”), and as a condition of continued Employment, Employee agrees as follows:\n1. Ownership and Non-disclosure of Proprietary Information:\nThe Employee acknowledges that all Proprietary Information, as defined below, is the exclusive property of the Company or the party that disclosed\nor delivered the same to the Company. Specifically, Employee agrees that all Proprietary Information developed as a direct or indirect result of\nEmployee’s efforts during any period of employment with the Company shall be and shall remain the exclusive property of the Company, and the\nEmployee shall have no ownership interest therein. To the extent Employee may have any interest in such developed Proprietary Information,\nEmployee assigns such interest to the Company.\nTo the extent a copyright may be obtained in any Proprietary Information, (i) that copyright shall be considered the property of the Company,\n(ii) the Proprietary Information shall be “works made for hire” under the Copyright Act of 1976 (the “Copyright Act”), the copyright for those works\nshall be the sole property of the Company and the Company shall be the sole author of such works within the meaning of the Copyright Act,\n(iii) Employee hereby assigns to the Company any of his rights to any such copyrightable material and (iv) Employee expressly disclaims any and all\ninterest he may have in the works. In the event that the copyright to any work may not be the property of the Company by operation of law,\nEmployee irrevocably assigns to the Company all right, title and interest in the work, including all so-called “moral rights.” If the moral rights\ncannot be assigned under the laws of a country where such rights exist, Employee hereby waives all of his moral rights and consents to any action of\nthe Company that would violate such rights in the absence of such consent.\nWhile employed by the Company and for a period of three (3) years thereafter, Employee shall not use or disclose any Proprietary Information,\ndirectly or indirectly, except as authorized by the Company in connection with Employee’s assigned duties. The foregoing notwithstanding,\nEmployee shall not at any time use or disclose, directly or indirectly, any of the Proprietary Information constituting Trade Secrets of the Company,\nas defined below, except as authorized by the Company in connection with Employee’s assigned duties.\n2. Definitions:\n“Proprietary Information,” as referred to herein, includes all of the following information and material, whether or not reduced to writing and\nwhether or not patentable, that Employee during any period of employment with the Company has access to or develops in whole or in part as a\ndirect or indirect result of such employment or through the use of any of the Company’s facilities or resources:\n(i) application, operating system, communication and other computer software, including, without limitation, all source and object code,\nflow charts, algorithms, coding sheets, routines, sub-routines, compilers, assemblers, design concepts and related documentation and\nmanuals;\n(ii) production processes, marketing techniques, purchasing information, fee lists, licensing policies, quoting procedures, financial\ninformation, employee names and job descriptions, customer and prospective customer names and requirements, data and other\ninformation or material relating to the manner in which any customer, prospective customer or the Company does business;\n(iii) discoveries, concepts and ideas (including, but not limited to, the nature and results of research and development activities),\nprocesses, formulae, techniques, “know-how,” designs, drawings and specifications;\n(iv) any other information or material relating to the business or activities of the Company which is not generally known to others\nengaged in similar businesses or activities;\n(v) all inventions and ideas which are derived from or relate to Employee’s access to or knowledge of any of the information or material\ndescribed herein; and\n(vi) any of the information or material described herein which is the property of any other person or firm which has revealed or delivered\nsuch information or material to the Company pursuant to a contractual relationship with the Company or otherwise in the course of the\nCompany’s business.\n“Proprietary Information” shall not include any information or material of the type described herein to the extent that such information or\nmaterial is or becomes publicly known through no act on Employee’s part. “Trade Secrets,” as referred herein, include all of the information and\nmaterial described in paragraphs (i), (iii), (v) and (vi) above. The failure to mark any of the Proprietary Information as confidential shall not affect its\nstatus as Proprietary Information or Trade Secrets.\n3. Records:\nAll notes, data, reference material, sketches, drawings, memoranda and records in any way relating to any of the Proprietary Information or to\nthe Company’s business shall belong exclusively to the Company, and at the request of the Company or, absent such a request, upon the termination\nof Employee’s employment with the Company, Employee agrees to turn over to the Company all such materials and copies thereof in Employee’s\npossession.\n4. Injunctive Relief:\nEmployee understands and agrees that the Company shall suffer irreparable harm if Employee breaches any of Employee’s obligations under\nthis Agreement and that monetary damages shall be inadequate to compensate the Company for any breach hereof. Accordingly, Employee agrees\nthat, in addition to any other remedies or rights, the Company shall have the right to obtain an injunction to enforce the terms of this Agreement.\n5. Prior Employer:\nEmployee represents that Employee’s performance as an employee of the Company will not breach any employment agreement nor any\nagreement to keep in confidence any trade secret or confidential or proprietary information of a former employer. Employee has not brought any\ntrade secrets or confidential or proprietary information of a former employer to the Company. Employee will not disclose nor use in the performance\nof Employee’s work with the Company any trade secrets or confidential or proprietary information without authorization from the former employer.\n6. Non-Solicitation:\nUntil one (1) year after the termination of Employee’s employment with the Company, Employee will not solicit or otherwise encourage others\nto leave the Company’s employment.\n7. Non-Competition:\nEmployee recognizes and acknowledges that his services to the Company are of importance to its continued economic success and growth. In\nrecognition of this fact, and in consideration of the employment by the Company and the salary and other compensation and benefits paid therefore,\nthe Employee agrees that he will not, directly or indirectly, during his period of employment and for a period of one (1) year after any termination of\nemployment, invest in, engage in or be associated with, on the Employee’s own behalf or in the service of another, as an employee, consultant,\naffiliate or otherwise in the ownership or operation of, any enterprise that manufactures or sells any product or service that is competitive with any\nproduct or service sold, provided or distributed by the Company on the date hereof or during the Employee’s employment in the Territory (as defined\nbelow). Notwithstanding the foregoing, the Employee may own less than 1% of the outstanding voting stock of a corporation otherwise coming\nwithin the restrictions of the previous sentence, the securities of which are listed on a national securities exchange or are traded in the Nasdaq Stock\nMarket if the Employee does not participate in the management of, perform services for or have any other beneficial interest in, such corporation. In\nthe event this covenant is more restrictive than permitted by applicable law, this covenant shall be limited to the extent permitted by law.\nFor purposes of the foregoing, the Territory shall mean the entire world, including, but not limited to, the states of Alabama, Alaska, Arizona,\nArkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,\nMaine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New\nMexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota,\nTennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, the District of Columbia, the countries of India and\nCanada, and the countries within the European Union.\n8. Severance Upon Termination Without Cause:\nIn the event that the Employee’s employment with the Company is terminated by the Company without Cause (as hereinafter defined), the\nEmployee shall be entitled to receive a severance payment equal to (x) the Employee’s then-current base salary for the one-year period\ncommencing on the effective date of such termination without Cause and (y) the Employee’s full bonus for the year in which the termination occurs\n(assuming achievement of 100% of applicable performance targets), payable, in each case, in the same amounts and at the same intervals as the base\nsalary and bonus would have otherwise been paid prior to such termination without Cause.\nFor purposes hereof, the following shall constitute “Cause”: (i) willful malfeasance or willful misconduct by the Employee in connection with\nhis employment, (ii) continuing failure to perform such duties as are requested by the Board of Directors of the Company, (iii) failure by the\nEmployee to observe material policies of the Company applicable to the Employee or (iv) the commission by the Employee of (x) any felony or\n(y) any misdemeanor involving moral turpitude.\n9. Acceleration of Options upon a Change in Control:\nIn the event of a Change in Control (as defined in the Company’s Key Employees’ Stock Option Plan) of the Company, all options to purchase\nClass A Common Stock of the Company then held by the Employee shall immediately vest in full without regard to the vesting provisions thereof\nand shall thereafter be exercisable for the full number of shares of Class A Common Stock subject to such options, subject to all other terms and\nconditions thereof (other than any vesting provisions).\n10. General:\nThis document contains the entire understanding between the Company and the Employee with respect to its subject matter. It may not be\nextended, varied, modified, supplemented or otherwise changed except by a written agreement signed by both the Employee and the Company. A\nwaiver by the Company of any right or provision under this Agreement shall not operate or be construed as a waiver of such right or provision at any\nother time. If a court finds a portion of this Agreement unenforceable, such findings shall not affect enforcement of the other portions of this\nAgreement. Any portion found to be unenforceable shall be construed to be reformed to extend as far as is enforceable. This Agreement shall inure\nto the benefits of and may be enforced by the successors and assigns of the Company. This agreement is entered into under the laws of the State of\nNew York and shall be governed by the laws of such State, excluding its conflicts of laws rules.\nI have read, understood and agree to the above terms and conditions.\nRAJEEV MEHTA\nSignature\n/s/ Rajeev Mehta\nName:\nRajeev Mehta\nDate:\nJuly 23, 2007\nAGREED AND ACCEPTED:\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nBy:\n/s/ Steven Schwartz
b9d85575953a301d1581e4cfad80409a.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nPERSONAL AND CONFIDENTIAL\nFebruary 3, 2009\nTyco Healthcare Group LP,\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nRe: CONFIDENTIALITY AND STANDSTILL AGREEMENT\nDear Sirs:\nIn connection with your consideration of a possible negotiated business combination transaction (a “Transaction”) with VNUS Medical\nTechnologies, Inc. and/or its subsidiaries (collectively, the “Company”), you have requested certain confidential and other information concerning\nthe Company.\nYou agree to treat any information furnished to you or your Representatives (as defined below) by or on behalf of the Company on or after the\ndate of this agreement concerning the Company or the business, products, markets, condition (financial or other) operations, assets, liabilities, results\nof operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), whether written or unwritten,\ntogether with any and all analyses or other documents prepared by you or any of your directors, officers, employees, advisors, attorneys, accountants,\nconsultants, agents, representatives or lending institutions (and their respective counsel) (collectively, “Representatives”) which contain or otherwise\nreflect such information (collectively, “Evaluation Material”), in accordance with this agreement. The term “Evaluation Material” does not include\ninformation which (a) was already in your or any of your Representatives’ possession prior to the time of disclosure to you by or on behalf of the\nCompany, provided that the source of such information was not and is not known by you or any such Representative, as the case may be, to be bound\nby any contractual or other obligation of confidentiality to the Company or any other person with respect to any of such information, (b) was or\nbecomes generally available to the public other than as a result of a disclosure by you or your Representatives, (c) becomes available to you or any\nof your Representatives on a non-confidential basis from a source other than the Company, provided that such source is not known by you or any\nsuch Representative, as the case may be, to be bound by any contractual or other obligation of confidentiality to the Company or any other person\nwith respect to such information or (d) is independently developed by or for you without using the Evaluation Material.\nThe Evaluation Material will be used by you (and you shall cause your Representatives to use the Evaluation Material) solely for the purpose\nof evaluating a Transaction between the Company and you, and will be kept confidential by you (and you shall cause your Representatives to keep\nthe Evaluation Material confidential), except to the extent that disclosure (a) has been consented to in writing by the Company prior to any\ndisclosure, (b) is required by law or other applicable judicial or governmental order, or (c) is made to your Representatives who need to know such\ninformation for the purpose of evaluating the Transaction (it being understood that such Representatives shall be informed by you of the confidential\nnature of the Evaluation Material). In any event, you agree to undertake commercially reasonable precautions to safeguard and protect the\nconfidentiality of the Evaluation Material and to accept responsibility for any use or disclosure of Evaluation Material by you or your\nRepresentatives that would constitute a breach of this agreement.\nIn addition, without the prior written consent of the other party hereto, neither party will, and each party will direct its respective\nRepresentatives not to, disclose to any other person (a) that the Evaluation Material has been made available to you or your Representatives, (b) that\ninvestigations, discussions or negotiations are taking place concerning a Transaction, or (c) any terms, conditions or other facts with respect to any\nTransaction, including the status thereof and the identity of the parties thereto (collectively, the “Discussion Information”).\nWithout limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you and your\nRepresentatives will not, directly or indirectly, consult or share Evaluation Material or Discussion Information with, or enter into any agreement,\narrangement or understanding, or any discussions which might lead to any such agreement, arrangement or understanding, with any co-investor,\nsource of equity financing or other person (other than the Company) regarding a Possible Transaction, including, without limitation, discussions or\nother communications with any prospective bidder for the Company with respect to (i) whether or not you or such other prospective bidder will\nmake a bid or offer for the Company or (ii) the price that you or such other bidder may bid or offer for the Company. The term “person” as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material or Discussion Information, you will provide the Company with prompt notice of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this agreement. In the event that such\nprotective order or other remedy is not obtained, or that the Company waives compliance with the terms hereof, you may disclose only that portion\nof the Evaluation Material or Discussion Information that is legally required to be disclosed and shall exercise reasonable efforts to obtain assurances\nthat confidential treatment will be accorded to such Evaluation Material or Discussion Information. Likewise, in the event that the Company or any\nof its Representatives is requested or required by judicial, legislative or regulatory process to disclose any of the Discussion Information, it will\nprovide you with prompt notice of any such request or requirement so that you may seek a protective order or other appropriate remedy and/or waive\ncompliance with the terms of this agreement. In the event that such protective order or other remedy is not obtained, or that you waive compliance\nwith the terms hereof, the Company may disclose only that portion of the Discussion Information that is legally required to be disclosed.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement, and that the Company is\nthus entitled to seek specific performance and injunctive or other equitable relief. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this agreement, but shall be in addition to all other remedies available at law or equity to the Company against the breach or threatened\nbreach of this agreement or the continuation of any such breach, without the necessity of proving actual damages.\nThe Company shall not be deemed to have made any representations or warranties, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and neither the Company nor its Representatives will have any liability to you or to any of your Representatives relating to\nor resulting from the use of any of the Evaluation Material or any accuracies or errors therein or omissions therefrom. Only those representations or\nwarranties which are made by the Company in a final written definitive agreement providing for the consummation of a Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nAs soon as practicable but in no event more than 10 business days after being so requested by the Company, except to the extent you are\nadvised by legal counsel that complying with such request would be prohibited by law, you will return to the Company, at your expense, or destroy\nall Evaluation Material in your possession or any of your Representatives. Any destruction of Evaluation Material shall be confirmed by you in\nwriting. With regard to destruction of Evaluation Materials in electronic form, you and your Representatives shall be required to perform customary\n“delete” functions made available by the software vendor for use by the end-user of the relevant software, but neither you nor your Representatives\nshall be required to delete all electronic copies that may be available, for example in backups or archives, or which are retrievable using forensic\ncomputer recovery techniques. Any Evaluation Material that can not be returned or destroyed (such as oral Evaluation Material)\nCONFIDENTIAL\nFebruary 3, 2009\n2\nshall remain confidential, subject to the terms of this agreement. Notwithstanding the foregoing, your Representatives that are accounting firms or\nfinancial institutions may retain solely for compliance purposes copies of the Evaluation Material in accordance with policies and procedures\nimplemented by such persons or to comply with law, regulation or professional standards; provided, however, that any Evaluation Material so\nretained will continue to be held confidential pursuant to the terms of this Agreement. Notwithstanding the delivery to the Company of Evaluation\nMaterial pursuant to this paragraph, you and your Representatives will continue to be bound by the confidentiality obligations and other obligations\nthrough the expiration of the term of this agreement.\nThis agreement binds the parties only with respect to the matters expressly set forth herein. As such, unless and until a subsequent definitive\nwritten agreement regarding a Transaction between the Company and you has been executed, (a) neither the Company nor you will be under any\nlegal obligation of any kind whatsoever to negotiate or consummate a Transaction, (b) you shall have no claim whatsoever against the Company or\nany of its Representatives arising out of or relating to any Transaction and (c) the Company will be free to negotiate with, or enter into any\nagreement or transaction with, any other interested party with respect to a Transaction.\nAdditionally, you agree not to (and shall cause your affiliates not to) solicit for employment any employee of the Company (a) with whom you\nor any of your Representatives has had direct contact or (b) who is listed on Exhibit A attached to this agreement, for a period of one year after the\ndate of this agreement, provided that you shall not be restricted in any general solicitation for employees (including through the use of employment\nagencies or advertisements in the media) not specifically directed at any such persons, and provided further that you shall not be restricted in hiring\nany such person (i) who responds to any such general solicitation, (ii) who solicits you for employment, (iii) who you can establish by reasonable\nproof began employment discussions with you prior to the date of this agreement or (iv) whose employment has been terminated by the Company.\nYou agree that for a period from the date of this agreement until the earlier of (a) the first anniversary of the date of this letter agreement, or\n(b) the occurrence of a Significant Event (as defined below) (the “Standstill Period”), unless specifically invited to do so by the Company, neither\nyou nor any of your affiliates will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of the Company or any\nsecurities of any subsidiary of the Company, (ii) any acquisition of any assets of the Company or any assets of any subsidiary of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation or dissolution involving the\nCompany or any subsidiary of the Company, or involving any securities or assets of the Company or any securities or assets of any subsidiary\nof the Company, or any other transaction seeking control of the Company or any subsidiary of the Company or their respective voting\nsecurities or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of the Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action that could reasonably be expected to require the Company to make a public announcement regarding any of the types\nof matters set forth in clause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\nCONFIDENTIAL\nFebruary 3, 2009\n3\n(f) assist, induce or encourage any other Person to take any action “(a)”, “(b)”, “(c)” or “(d)” or “(e)” of this sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to or any of the foregoing; or\n(h) request or propose that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this paragraph.\nA “Significant Event” shall mean the Company enters into any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of the Company (the “Common Stock”) would be converted into cash or securities of another person or 13D\nGroup (as defined below) or 50% or more of the then outstanding shares of Common Stock would be owned by persons other than current holders of\nshares of Common Stock, or which would result in all or a substantial portion of the Company’s assets being sold to any person or 13D Group. “13D\nGroup” shall mean any group of persons formed for the purpose of acquiring, holding, voting or disposing of Voting Securities (as defined below)\nthat would be required under Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with\nthe SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act. “Voting Securities” shall mean at any time shares of any class of\ncapital stock of the Company that are then entitled to vote generally in the election of directors; provided that for purposes of this definition any\nsecurities that at such time are convertible or exchangeable into or exercisable for shares of Common Stock shall be deemed to have been so\nconverted, exchanged or exercised.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nThis agreement shall be governed by the internal laws of the State of Delaware, without regard to conflict of laws principles. This agreement\nmay be amended only in a writing signed by the Company and you. No failure or delay by the Company in exercising any right hereunder or any\npartial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nExcept as otherwise expressly provided herein, your obligations under this agreement shall remain in effect for a period of two years from the\ndate hereof, unless and until this agreement is terminated by the Company or is superseded by another agreement with you that concerns your use of\nthe Evaluation Material.\nPlease confirm that the foregoing is in accordance with your understanding by signing and returning to us a copy of this letter.\nVery truly yours,\nVNUS Medical Technologies, Inc.\nBy:\n/S/ BRIAN E. FARLEY\nName:\nBrian E. Farley\nTitle:\nPresident and CEO\nCONFIDENTIAL\nFebruary 3, 2009\n4\nAccepted and agreed to as of this 3rd day of February, 2009:\nTyco Healthcare Group LP,\nd/b/a Covidien\nBy:\n/S/ JOHN H. MASTERSON\nName:\nJohn H. Masterson\nTitle:\nVice President\nCONFIDENTIAL\nFebruary 3, 2009\n5\nEXHIBIT A\nName\nCurrent Title\nDieter Bielang\nSenior Director, International Sales and Marketing\nBrian E. Farley\nPresident and Chief Executive Officer\nWilliam A. Franklin\nVice President, Regulatory Affairs and Quality Assurance\nKirti Kamdar\nSenior Vice President, Research & Development\nMark Kertz\nSenior Director, Intellectual Property\nTom Miller\nSenior Director, Information Technology\nScott Murcray\nController and Chief Accounting Officer\nPeter Osborne\nChief Financial Officer and Vice President, Finance and Administration\nMohan F. Sancheti\nSenior Vice President, Manufacturing\nMark S. Saxton\nVice President, U.S . Sales\nGuido Smeets\nVice President of Clinical Research and Chief Medical Officer\nDonald J. Todd\nVice President of Marketing\nCindee Van Vleck\nSenior Director of Human Resources\nCONFIDENTIAL\nFebruary 3, 2009\n6	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nPERSONAL AND CONFIDENTIAL\nFebruary 3, 2009\nTyco Healthcare Group LP,\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nRe: CONFIDENTIALITY AND STANDSTILL AGREEMENT\nDear Sirs:\nIn connection with your consideration of a possible negotiated business combination transaction (a “Transaction”) with VNUS Medical\nTechnologies, Inc. and/or its subsidiaries (collectively, the “Company”), you have requested certain confidential and other information concerning\nthe Company.\nYou agree to treat any information furnished to you or your Representatives (as defined below) by or on behalf of the Company on or after the\ndate of this agreement concerning the Company or the business, products, markets, condition (financial or other) operations, assets, liabilities, results\nof operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), whether written or unwritten,\ntogether with any and all analyses or other documents prepared by you or any of your directors, officers, employees, advisors, attorneys, accountants,\nconsultants, agents, representatives or lending institutions (and their respective counsel) (collectively, “Representatives”) which contain or otherwise\nreflect such information (collectively, “Evaluation Material”), in accordance with this agreement. The term “Evaluation Material” does not include\ninformation which (a) was already in your or any of your Representatives’ possession prior to the time of disclosure to you by or on behalf of the\nCompany, provided that the source of such information was not and is not known by you or any such Representative, as the case may be, to be bound\nby any contractual or other obligation of confidentiality to the Company or any other person with respect to any of such information, (b) was or\nbecomes generally available to the public other than as a result of a disclosure by you or your Representatives, (c) becomes available to you or any\nof your Representatives on a non-confidential basis from a source other than the Company, provided that such source is not known by you or any\nsuch Representative, as the case may be, to be bound by any contractual or other obligation of confidentiality to the Company or any other person\nwith respect to such information or (d) is independently developed by or for you without using the Evaluation Material.\nThe Evaluation Material will be used by you (and you shall cause your Representatives to use the Evaluation Material) solely for the purpose\nof evaluating a Transaction between the Company and you, and will be kept confidential by you (and you shall cause your Representatives to keep\nthe Evaluation Material confidential), except to the extent that disclosure (a) has been consented to in writing by the Company prior to any\ndisclosure, (b) is required by law or other applicable judicial or governmental order, or (c) is made to your Representatives who need to know such\ninformation for the purpose of evaluating the Transaction (it being understood that such Representatives shall be informed by you of the confidential\nnature of the Evaluation Material). In any event, you agree to undertake commercially reasonable precautions to safeguard and protect the\nconfidentiality of the Evaluation Material and to accept responsibility for any use or disclosure of Evaluation Material by you or your\nRepresentatives that would constitute a breach of this agreement.\nIn addition, without the prior written consent of the other party hereto, neither party will, and each party will direct its respective\nRepresentatives not to, disclose to any other person (a) that the Evaluation Material has been made available to you or your Representatives, (b) that\ninvestigations, discussions or negotiations are taking place concerning a Transaction, or (c) any terms, conditions or other facts with respect to any\nTransaction, including the status thereof and the identity of the parties thereto (collectively, the “Discussion Information™).\nWithout limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you and your\nRepresentatives will not, directly or indirectly, consult or share Evaluation Material or Discussion Information with, or enter into any agreement,\narrangement or understanding, or any discussions which might lead to any such agreement, arrangement or understanding, with any co-investor,\nsource of equity financing or other person (other than the Company) regarding a Possible Transaction, including, without limitation, discussions or\nother communications with any prospective bidder for the Company with respect to (i) whether or not you or such other prospective bidder will\nmake a bid or offer for the Company or (ii) the price that you or such other bidder may bid or offer for the Company. The term “person” as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material or Discussion Information, you will provide the Company with prompt notice of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this agreement. In the event that such\nprotective order or other remedy is not obtained, or that the Company waives compliance with the terms hereof, you may disclose only that portion\nof the Evaluation Material or Discussion Information that is legally required to be disclosed and shall exercise reasonable efforts to obtain assurances\nthat confidential treatment will be accorded to such Evaluation Material or Discussion Information. Likewise, in the event that the Company or any\nof its Representatives is requested or required by judicial, legislative or regulatory process to disclose any of the Discussion Information, it will\nprovide you with prompt notice of any such request or requirement so that you may seek a protective order or other appropriate remedy and/or waive\ncompliance with the terms of this agreement. In the event that such protective order or other remedy is not obtained, or that you waive compliance\nwith the terms hereof, the Company may disclose only that portion of the Discussion Information that is legally required to be disclosed.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement, and that the Company is\nthus entitled to seek specific performance and injunctive or other equitable relief. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this agreement, but shall be in addition to all other remedies available at law or equity to the Company against the breach or threatened\nbreach of this agreement or the continuation of any such breach, without the necessity of proving actual damages.\nThe Company shall not be deemed to have made any representations or warranties, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and neither the Company nor its Representatives will have any liability to you or to any of your Representatives relating to\nor resulting from the use of any of the Evaluation Material or any accuracies or errors therein or omissions therefrom. Only those representations or\nwarranties which are made by the Company in a final written definitive agreement providing for the consummation of a Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nAs soon as practicable but in no event more than 10 business days after being so requested by the Company, except to the extent you are\nadvised by legal counsel that complying with such request would be prohibited by law, you will return to the Company, at your expense, or destroy\nall Evaluation Material in your possession or any of your Representatives. Any destruction of Evaluation Material shall be confirmed by you in\nwriting. With regard to destruction of Evaluation Materials in electronic form, you and your Representatives shall be required to perform customary\n“delete” functions made available by the software vendor for use by the end-user of the relevant software, but neither you nor your Representatives\nshall be required to delete all electronic copies that may be available, for example in backups or archives, or which are retrievable using forensic\ncomputer recovery techniques. Any Evaluation Material that can not be returned or destroyed (such as oral Evaluation Material)\nCONFIDENTIAL\nFebruary 3, 2009\nshall remain confidential, subject to the terms of this agreement. Notwithstanding the foregoing, your Representatives that are accounting firms or\nfinancial institutions may retain solely for compliance purposes copies of the Evaluation Material in accordance with policies and procedures\nimplemented by such persons or to comply with law, regulation or professional standards; provided, however, that any Evaluation Material so\nretained will continue to be held confidential pursuant to the terms of this Agreement. Notwithstanding the delivery to the Company of Evaluation\nMaterial pursuant to this paragraph, you and your Representatives will continue to be bound by the confidentiality obligations and other obligations\nthrough the expiration of the term of this agreement.\nThis agreement binds the parties only with respect to the matters expressly set forth herein. As such, unless and until a subsequent definitive\nwritten agreement regarding a Transaction between the Company and you has been executed, (a) neither the Company nor you will be under any\nlegal obligation of any kind whatsoever to negotiate or consummate a Transaction, (b) you shall have no claim whatsoever against the Company or\nany of its Representatives arising out of or relating to any Transaction and (c) the Company will be free to negotiate with, or enter into any\nagreement or transaction with, any other interested party with respect to a Transaction.\nAdditionally, you agree not to (and shall cause your affiliates not to) solicit for employment any employee of the Company (a) with whom you\nor any of your Representatives has had direct contact or (b) who is listed on Exhibit A attached to this agreement, for a period of one year after the\ndate of this agreement, provided that you shall not be restricted in any general solicitation for employees (including through the use of employment\nagencies or advertisements in the media) not specifically directed at any such persons, and provided further that you shall not be restricted in hiring\nany such person (i) who responds to any such general solicitation, (ii) who solicits you for employment, (iii) who you can establish by reasonable\nproof began employment discussions with you prior to the date of this agreement or (iv) whose employment has been terminated by the Company.\nYou agree that for a period from the date of this agreement until the earlier of (a) the first anniversary of the date of this letter agreement, or\n(b) the occurrence of a Significant Event (as defined below) (the “Standstill Period”), unless specifically invited to do so by the Company, neither\nyou nor any of your affiliates will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of the Company or any\nsecurities of any subsidiary of the Company, (ii) any acquisition of any assets of the Company or any assets of any subsidiary of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation or dissolution involving the\nCompany or any subsidiary of the Company, or involving any securities or assets of the Company or any securities or assets of any subsidiary\nof the Company, or any other transaction seeking control of the Company or any subsidiary of the Company or their respective voting\nsecurities or (iv) any “solicitation” of “proxies™ (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of the Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action that could reasonably be expected to require the Company to make a public announcement regarding any of the types\nof matters set forth in clause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\nCONFIDENTIAL\nFebruary 3, 2009\n(f) assist, induce or encourage any other Person to take any action “(a)”, “(b)”, “(c)” or “(d)” or “(e)” of this sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to or any of the foregoing; or\n(h) request or propose that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this paragraph.\nA “Significant Event” shall mean the Company enters into any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of the Company (the “Common Stock”) would be converted into cash or securities of another person or 13D\nGroup (as defined below) or 50% or more of the then outstanding shares of Common Stock would be owned by persons other than current holders of\nshares of Common Stock, or which would result in all or a substantial portion of the Company’s assets being sold to any person or 13D Group. “13D\nGroup” shall mean any group of persons formed for the purpose of acquiring, holding, voting or disposing of Voting Securities (as defined below)\nthat would be required under Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with\nthe SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act. “Voting Securities” shall mean at any time shares of any class of\ncapital stock of the Company that are then entitled to vote generally in the election of directors; provided that for purposes of this definition any\nsecurities that at such time are convertible or exchangeable into or exercisable for shares of Common Stock shall be deemed to have been so\nconverted, exchanged or exercised.\n \nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nThis agreement shall be governed by the internal laws of the State of Delaware, without regard to conflict of laws principles. This agreement\nmay be amended only in a writing signed by the Company and you. No failure or delay by the Company in exercising any right hereunder or any\npartial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nExcept as otherwise expressly provided herein, your obligations under this agreement shall remain in effect for a period of two years from the\ndate hereof, unless and until this agreement is terminated by the Company or is superseded by another agreement with you that concerns your use of\nthe Evaluation Material.\nPlease confirm that the foregoing is in accordance with your understanding by signing and returning to us a copy of this letter.\nVery truly yours,\nVNUS Medical Technologies, Inc.\nBy: /S/ BRIAN E. FARLEY\nName: Brian E. Farley\nTitle: President and CEO\nCONFIDENTIAL\nFebruary 3, 2009\nAccepted and agreed to as of this 3rd day of February, 2009:\nTyco Healthcare Group LP,\nd/b/a Covidien\nBy: /S/ JOHN H. MASTERSON\nName: John H. Masterson\nTitle: Vice President\nCONFIDENTIAL\nFebruary 3, 2009\nName\nDieter Bielang\nBrian E. Farley\nWilliam A. Franklin\nKirti Kamdar\nMark Kertz\nTom Miller\nScott Murcray\nPeter Osborne\nMohan F. Sancheti\nMark S. Saxton\nGuido Smeets\nDonald J. Todd\nCindee Van Vleck\n \nCONFIDENTIAL\nFebruary 3, 2009\nEXHIBIT A\nCurrent Title\nSenior Director, International Sales and Marketing\nPresident and Chief Executive Officer\nVice President, Regulatory Affairs and Quality Assurance\nSenior Vice President, Research & Development\nSenior Director, Intellectual Property\nSenior Director, Information Technology\nController and Chief Accounting Officer\nChief Financial Officer and Vice President, Finance and Administration\nSenior Vice President, Manufacturing\nVice President, U.S. Sales\nVice President of Clinical Research and Chief Medical Officer\nVice President of Marketing\nSenior Director of Human Resources	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nPERSONAL AND CONFIDENTIAL\nFebruary 3, 2009\nTyco Healthcare Group LP,\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nRe: CONFIDENTIALITY AND STANDSTILL AGREEMENT\nDear Sirs:\nIn connection with your consideration of a possible negotiated business combination transaction (a "Transaction") with VNUS Medical\nTechnologies, Inc. and/or its subsidiaries (collectively, the "Company"), you have requested certain confidential and other information concerning\nthe Company.\nYou agree to treat any information furnished to you or your Representatives (as defined below) by or on behalf of the Company on or after the\ndate of this agreement concerning the Company or the business, products, markets, condition (financial or other) operations, assets, liabilities, results\nof operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), whether written or unwritten,\ntogether with any and all analyses or other documents prepared by you or any of your directors, officers, employees, advisors, attorneys, accountants,\nconsultants, agents, representatives or lending institutions (and their respective counsel) (collectively, "Representatives") which contain or otherwise\nreflect such information (collectively, "Evaluation Material"), in accordance with this agreement. The term "Evaluation Material" does not include\ninformation which (a) was already in your or any of your Representatives' possession prior to the time of disclosure to you by or on behalf of the\nCompany, provided that the source of such information was not and is not known by you or any such Representative, as the case may be, to be bound\nby any contractual or other obligation of confidentiality to the Company or any other person with respect to any of such information, (b) was or\nbecomes\ngenerally\navailable\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\na\ndisclosure\nby\nyou\nor\nyour\nRepresentatives,\n(c)\nbecomes\navailable\nto\nyou\nor\nany\nof your Representatives on a non-confidential basis from a source other than the Company, provided that such source is not known by you or any\nsuch Representative, as the case may be, to be bound by any contractual or other obligation of confidentiality to the Company or any other person\nwith respect to such information or (d) is independently developed by or for you without using the Evaluation Material.\nThe Evaluation Material will be used by you (and you shall cause your Representatives to use the Evaluation Material) solely for the purpose\nof evaluating a Transaction between the Company and you, and will be kept confidential by you (and you shall cause your Representatives to keep\nthe Evaluation Material confidential), except to the extent that disclosure (a) has been consented to in writing by the Company prior to any\ndisclosure, (b) is required by law or other applicable judicial or governmental order, or (c) is made to your Representatives who need to know such\ninformation for the purpose of evaluating the Transaction (it being understood that such Representatives shall be informed by you of the confidential\nnature of the Evaluation Material). In any event, you agree to undertake commercially reasonable precautions to safeguard and protect the\nconfidentiality of the Evaluation Material and to accept responsibility for any use or disclosure of Evaluation Material by you or your\nRepresentatives that would constitute a breach of this agreement.\nIn addition, without the prior written consent of the other party hereto, neither party will, and each party will direct its respective\nRepresentatives not to, disclose to any other person (a) that the Evaluation Material has been made available to you or your Representatives, (b) that\ninvestigations, discussions or negotiations are taking place concerning a Transaction, or (c) any terms, conditions or other facts with respect to any\nTransaction, including the status thereof and the identity of the parties thereto (collectively, the "Discussion Information").\nWithout limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you and\nyour\nRepresentatives will not, directly or indirectly, consult or share Evaluation Material or Discussion Information with, or enter into any agreement,\narrangement or understanding, or any discussions which might lead to any such agreement, arrangement or understanding, with any co-investor,\nsource of equity financing or other person (other than the Company) regarding a Possible Transaction, including, without limitation, discussions or\nother communications with any prospective bidder for the Company with respect to (i) whether or not you or such other prospective bidder will\nmake a bid or offer for the Company or (ii) the price that you or such other bidder may bid or offer for the Company. The term "person" as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material or Discussion Information, you will provide the Company with prompt notice of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this agreement. In the event that such\nprotective order or other remedy is not obtained, or that the Company waives compliance with the terms hereof, you may disclose only that portion\nof the Evaluation Material or Discussion Information that is legally required to be disclosed and shall exercise reasonable efforts to obtain assurances\nthat confidential treatment will be accorded to such Evaluation Material or Discussion Information. Likewise, in the event that the Company or any\nof its Representatives is requested or required by judicial, legislative or regulatory process to disclose any of the Discussion Information, it will\nprovide you with prompt notice of any such request or requirement so that you may seek a protective order or other appropriate remedy and/or waive\ncompliance with the terms of this agreement. In the event that such protective order or other remedy is not obtained, or that you waive compliance\nwith the terms hereof, the Company may disclose only that portion of the Discussion Information that is legally required to be disclosed.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement, and that the Company\nis\nthus entitled to seek specific performance and injunctive or other equitable relief. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this agreement, but shall be in addition to all other remedies available at law or equity to the Company against the breach or threatened\nbreach of this agreement or the continuation of any such breach, without the necessity of proving actual damages.\nThe Company shall not be deemed to have made any representations or warranties, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and neither the Company nor its Representatives will have any liability to you or to any of your Representatives relating to\nor resulting from the use of any of the Evaluation Material or any accuracies or errors therein or omissions therefrom. Only those representations\nor\nwarranties which are made by the Company in a final written definitive agreement providing for the consummation of a Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nAs soon as practicable but in no event more than 10 business days after being so requested by the Company, except to the extent you are\nadvised by legal counsel that complying with such request would be prohibited by law, you will return to the Company, at your expense, or destroy\nall Evaluation Material in your possession or any of your Representatives. Any destruction of Evaluation Material shall be confirmed by you\nin\nwriting. With regard to destruction of Evaluation Materials in electronic form, you and your Representatives shall be required to perform customary\n"delete" functions made available by the software vendor for use by the end-user of the relevant software, but neither you nor your Representatives\nshall be required to delete all electronic copies that may be available, for example in backups or archives, or which are retrievable using forensic\ncomputer recovery techniques. Any Evaluation Material that can not be returned or destroyed (such as oral Evaluation Material)\nCONFIDENTIAL\nFebruary 3, 2009\n2\nshall remain confidential, subject to the terms of this agreement. Notwithstanding the foregoing, your Representatives that are accounting firms or\nfinancial institutions may retain solely for compliance purposes copies of the Evaluation Material in accordance with policies and procedures\nimplemented by such persons or to comply with law, regulation or professional standards; provided, however, that any Evaluation Material\nso\nretained will continue to be held confidential pursuant to the terms of this Agreement. Notwithstanding the delivery to the Company of Evaluation\nMaterial pursuant to this paragraph, you and your Representatives will continue to be bound by the confidentiality obligations and other obligations\nthrough the expiration of the term of this agreement.\nThis agreement binds the parties only with respect to the matters expressly set forth herein. As such, unless and until a subsequent definitive\nwritten agreement regarding a Transaction between the Company and you has been executed, (a) neither the Company nor you will be under any\nlegal obligation of any kind whatsoever to negotiate or consummate a Transaction, (b) you shall have no claim whatsoever against the Company or\nany of its Representatives arising out of or relating to any Transaction and (c) the Company will be free to negotiate with, or enter into any\nagreement or transaction with, any other interested party with respect to a Transaction.\nAdditionally, you agree not to (and shall cause your affiliates not to) solicit for employment any employee of the Company (a) with whom you\nor any of your Representatives has had direct contact or (b) who is listed on Exhibit A attached to this agreement, for a period of one year after the\ndate of this agreement, provided that you shall not be restricted in any general solicitation for employees (including through the use of employment\nagencies or advertisements in the media) not specifically directed at any such persons, and provided further that you shall not be restricted in hiring\nany such person (i) who responds to any such general solicitation, (ii) who solicits you for employment, (iii) who you can establish by reasonable\nproof began employment discussions with you prior to the date of this agreement or (iv) whose employment has been terminated by the Company.\nYou\nagree\nthat\nfor\na\nperiod\nfrom\nthe\ndate\nof\nthis\nagreement\nuntil\nthe\nearlier\nof\n(a)\nthe\nfirst\nanniversary\nof\nthe\ndate\nof\nthis\nletter\nagreement,\nor\n(b) the occurrence of a Significant Event (as defined below) (the "Standstill Period"), unless specifically invited to do so by the Company, neither\nyou nor any of your affiliates will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of the Company or any\nsecurities of any subsidiary of the Company, (ii) any acquisition of any assets of the Company or any assets of any subsidiary of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation or dissolution involving the\nCompany or any subsidiary of the Company, or involving any securities or assets of the Company or any securities or assets of any subsidiary\nof the Company, or any other transaction seeking control of the Company or any subsidiary of the Company or their respective voting\nsecurities or (iv) any "solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b)\nform, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of the Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action that could reasonably be expected to require the Company to make a public announcement regarding any of the types\nof matters set forth in clause "(a)" of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause "(a)", "(b)", "(c)"\nor "(d)" of this sentence;\nCONFIDENTIAL\nFebruary 3, 2009\n3\n(f) assist, induce or encourage any other Person to take any action "(a)", "(b)", "(c)" or "(d)" or "(e)" of this sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to or any of the foregoing; or\n(h) request or propose that the Company or any of the Company's Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this paragraph.\nA\n"Significant Event" shall mean the Company enters into any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of the Company (the "Common Stock") would be converted into cash or securities of another person or 13D\nGroup (as defined below) or 50% or more of the then outstanding shares of Common Stock would be owned by persons other than current holders of\nshares of Common Stock, or which would result in all or a substantial portion of the Company's assets being sold to any person or 13D Group. "13D\nGroup" shall mean any group of persons formed for the purpose of acquiring, holding, voting or disposing of Voting Securities (as defined below)\nthat\nwould be required under Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with\nthe SEC as a "person" within the meaning of Section 13(d)(3) of the Exchange Act. "Voting Securities" shall mean at any time shares of any class of\ncapital stock of the Company that are then entitled to vote generally in the election of directors; provided that for purposes of this definition any\nsecurities that at such time are convertible or exchangeable into or exercisable for shares of Common Stock shall be deemed to have been so\nconverted, exchanged or exercised.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nThis agreement shall be governed by the internal laws of the State of Delaware, without regard to conflict of laws principles. This agreement\nmay be amended only in a writing signed by the Company and you. No failure or delay by the Company in exercising any right hereunder or any\npartial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nExcept as otherwise expressly provided herein, your obligations under this agreement shall remain in effect for a period of two years from the\ndate hereof, unless and until this agreement is terminated by the Company or is superseded by another agreement with you that concerns your use of\nthe Evaluation Material.\nPlease confirm that the foregoing is in accordance with your understanding by signing and returning to us a copy of this letter.\nVery truly yours,\nVNUS Medical Technologies, Inc.\nBy:\n/S/ BRIAN E. FARLEY\nName:\nBrian E. Farley\nTitle:\nPresident and CEO\nCONFIDENTIAL\nFebruary 3, 2009\n4\nAccepted and agreed to as of this 3rd day of February, 2009:\nTyco Healthcare Group LP,\nd/b/a Covidien\nBy:\n/S/ JOHN H. MASTERSON\nName:\nJohn H. Masterson\nTitle:\nVice President\nCONFIDENTIAL\nFebruary 3, 2009\n5\nEXHIBIT A\nName\nCurrent Title\nDieter Bielang\nSenior Director, International Sales and Marketing\nBrian E. Farley\nPresident and Chief Executive Officer\nWilliam A. Franklin\nVice President, Regulatory Affairs and Quality Assurance\nKirti Kamdar\nSenior Vice President, Research & Development\nMark Kertz\nSenior Director, Intellectual Property\nTom Miller\nSenior Director, Information Technology\nScott Murcray\nController and Chief Accounting Officer\nPeter Osborne\nChief Financial Officer and Vice President, Finance and Administration\nMohan F. Sancheti\nSenior Vice President, Manufacturing\nMark S. Saxton\nVice President, U.S. Sales\nGuido Smeets\nVice President of Clinical Research and Chief Medical Officer\nDonald J. Todd\nVice President of Marketing\nCindee Van Vleck\nSenior Director of Human Resources\nCONFIDENTIAL\nFebruary 3, 2009\n6	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nPERSONAL AND CONFIDENTIAL\nFebruary 3, 2009\nTyco Healthcare Group LP,\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nRe: CONFIDENTIALITY AND STANDSTILL AGREEMENT\nDear Sirs:\nIn connection with your consideration of a possible negotiated business combination transaction (a “Transaction”) with VNUS Medical\nTechnologies, Inc. and/or its subsidiaries (collectively, the “Company”), you have requested certain confidential and other information concerning\nthe Company.\nYou agree to treat any information furnished to you or your Representatives (as defined below) by or on behalf of the Company on or after the\ndate of this agreement concerning the Company or the business, products, markets, condition (financial or other) operations, assets, liabilities, results\nof operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), whether written or unwritten,\ntogether with any and all analyses or other documents prepared by you or any of your directors, officers, employees, advisors, attorneys, accountants,\nconsultants, agents, representatives or lending institutions (and their respective counsel) (collectively, “Representatives”) which contain or otherwise\nreflect such information (collectively, “Evaluation Material”), in accordance with this agreement. The term “Evaluation Material” does not include\ninformation which (a) was already in your or any of your Representatives’ possession prior to the time of disclosure to you by or on behalf of the\nCompany, provided that the source of such information was not and is not known by you or any such Representative, as the case may be, to be bound\nby any contractual or other obligation of confidentiality to the Company or any other person with respect to any of such information, (b) was or\nbecomes generally available to the public other than as a result of a disclosure by you or your Representatives, (c) becomes available to you or any\nof your Representatives on a non-confidential basis from a source other than the Company, provided that such source is not known by you or any\nsuch Representative, as the case may be, to be bound by any contractual or other obligation of confidentiality to the Company or any other person\nwith respect to such information or (d) is independently developed by or for you without using the Evaluation Material.\nThe Evaluation Material will be used by you (and you shall cause your Representatives to use the Evaluation Material) solely for the purpose\nof evaluating a Transaction between the Company and you, and will be kept confidential by you (and you shall cause your Representatives to keep\nthe Evaluation Material confidential), except to the extent that disclosure (a) has been consented to in writing by the Company prior to any\ndisclosure, (b) is required by law or other applicable judicial or governmental order, or (c) is made to your Representatives who need to know such\ninformation for the purpose of evaluating the Transaction (it being understood that such Representatives shall be informed by you of the confidential\nnature of the Evaluation Material). In any event, you agree to undertake commercially reasonable precautions to safeguard and protect the\nconfidentiality of the Evaluation Material and to accept responsibility for any use or disclosure of Evaluation Material by you or your\nRepresentatives that would constitute a breach of this agreement.\nIn addition, without the prior written consent of the other party hereto, neither party will, and each party will direct its respective\nRepresentatives not to, disclose to any other person (a) that the Evaluation Material has been made available to you or your Representatives, (b) that\ninvestigations, discussions or negotiations are taking place concerning a Transaction, or (c) any terms, conditions or other facts with respect to any\nTransaction, including the status thereof and the identity of the parties thereto (collectively, the “Discussion Information”).\nWithout limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you and your\nRepresentatives will not, directly or indirectly, consult or share Evaluation Material or Discussion Information with, or enter into any agreement,\narrangement or understanding, or any discussions which might lead to any such agreement, arrangement or understanding, with any co-investor,\nsource of equity financing or other person (other than the Company) regarding a Possible Transaction, including, without limitation, discussions or\nother communications with any prospective bidder for the Company with respect to (i) whether or not you or such other prospective bidder will\nmake a bid or offer for the Company or (ii) the price that you or such other bidder may bid or offer for the Company. The term “person” as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material or Discussion Information, you will provide the Company with prompt notice of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this agreement. In the event that such\nprotective order or other remedy is not obtained, or that the Company waives compliance with the terms hereof, you may disclose only that portion\nof the Evaluation Material or Discussion Information that is legally required to be disclosed and shall exercise reasonable efforts to obtain assurances\nthat confidential treatment will be accorded to such Evaluation Material or Discussion Information. Likewise, in the event that the Company or any\nof its Representatives is requested or required by judicial, legislative or regulatory process to disclose any of the Discussion Information, it will\nprovide you with prompt notice of any such request or requirement so that you may seek a protective order or other appropriate remedy and/or waive\ncompliance with the terms of this agreement. In the event that such protective order or other remedy is not obtained, or that you waive compliance\nwith the terms hereof, the Company may disclose only that portion of the Discussion Information that is legally required to be disclosed.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement, and that the Company is\nthus entitled to seek specific performance and injunctive or other equitable relief. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this agreement, but shall be in addition to all other remedies available at law or equity to the Company against the breach or threatened\nbreach of this agreement or the continuation of any such breach, without the necessity of proving actual damages.\nThe Company shall not be deemed to have made any representations or warranties, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and neither the Company nor its Representatives will have any liability to you or to any of your Representatives relating to\nor resulting from the use of any of the Evaluation Material or any accuracies or errors therein or omissions therefrom. Only those representations or\nwarranties which are made by the Company in a final written definitive agreement providing for the consummation of a Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nAs soon as practicable but in no event more than 10 business days after being so requested by the Company, except to the extent you are\nadvised by legal counsel that complying with such request would be prohibited by law, you will return to the Company, at your expense, or destroy\nall Evaluation Material in your possession or any of your Representatives. Any destruction of Evaluation Material shall be confirmed by you in\nwriting. With regard to destruction of Evaluation Materials in electronic form, you and your Representatives shall be required to perform customary\n“delete” functions made available by the software vendor for use by the end-user of the relevant software, but neither you nor your Representatives\nshall be required to delete all electronic copies that may be available, for example in backups or archives, or which are retrievable using forensic\ncomputer recovery techniques. Any Evaluation Material that can not be returned or destroyed (such as oral Evaluation Material)\nCONFIDENTIAL\nFebruary 3, 2009\n2\nshall remain confidential, subject to the terms of this agreement. Notwithstanding the foregoing, your Representatives that are accounting firms or\nfinancial institutions may retain solely for compliance purposes copies of the Evaluation Material in accordance with policies and procedures\nimplemented by such persons or to comply with law, regulation or professional standards; provided, however, that any Evaluation Material so\nretained will continue to be held confidential pursuant to the terms of this Agreement. Notwithstanding the delivery to the Company of Evaluation\nMaterial pursuant to this paragraph, you and your Representatives will continue to be bound by the confidentiality obligations and other obligations\nthrough the expiration of the term of this agreement.\nThis agreement binds the parties only with respect to the matters expressly set forth herein. As such, unless and until a subsequent definitive\nwritten agreement regarding a Transaction between the Company and you has been executed, (a) neither the Company nor you will be under any\nlegal obligation of any kind whatsoever to negotiate or consummate a Transaction, (b) you shall have no claim whatsoever against the Company or\nany of its Representatives arising out of or relating to any Transaction and (c) the Company will be free to negotiate with, or enter into any\nagreement or transaction with, any other interested party with respect to a Transaction.\nAdditionally, you agree not to (and shall cause your affiliates not to) solicit for employment any employee of the Company (a) with whom you\nor any of your Representatives has had direct contact or (b) who is listed on Exhibit A attached to this agreement, for a period of one year after the\ndate of this agreement, provided that you shall not be restricted in any general solicitation for employees (including through the use of employment\nagencies or advertisements in the media) not specifically directed at any such persons, and provided further that you shall not be restricted in hiring\nany such person (i) who responds to any such general solicitation, (ii) who solicits you for employment, (iii) who you can establish by reasonable\nproof began employment discussions with you prior to the date of this agreement or (iv) whose employment has been terminated by the Company.\nYou agree that for a period from the date of this agreement until the earlier of (a) the first anniversary of the date of this letter agreement, or\n(b) the occurrence of a Significant Event (as defined below) (the “Standstill Period”), unless specifically invited to do so by the Company, neither\nyou nor any of your affiliates will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of the Company or any\nsecurities of any subsidiary of the Company, (ii) any acquisition of any assets of the Company or any assets of any subsidiary of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation or dissolution involving the\nCompany or any subsidiary of the Company, or involving any securities or assets of the Company or any securities or assets of any subsidiary\nof the Company, or any other transaction seeking control of the Company or any subsidiary of the Company or their respective voting\nsecurities or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of the Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action that could reasonably be expected to require the Company to make a public announcement regarding any of the types\nof matters set forth in clause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\nCONFIDENTIAL\nFebruary 3, 2009\n3\n(f) assist, induce or encourage any other Person to take any action “(a)”, “(b)”, “(c)” or “(d)” or “(e)” of this sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to or any of the foregoing; or\n(h) request or propose that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this paragraph.\nA “Significant Event” shall mean the Company enters into any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of the Company (the “Common Stock”) would be converted into cash or securities of another person or 13D\nGroup (as defined below) or 50% or more of the then outstanding shares of Common Stock would be owned by persons other than current holders of\nshares of Common Stock, or which would result in all or a substantial portion of the Company’s assets being sold to any person or 13D Group. “13D\nGroup” shall mean any group of persons formed for the purpose of acquiring, holding, voting or disposing of Voting Securities (as defined below)\nthat would be required under Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with\nthe SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act. “Voting Securities” shall mean at any time shares of any class of\ncapital stock of the Company that are then entitled to vote generally in the election of directors; provided that for purposes of this definition any\nsecurities that at such time are convertible or exchangeable into or exercisable for shares of Common Stock shall be deemed to have been so\nconverted, exchanged or exercised.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nThis agreement shall be governed by the internal laws of the State of Delaware, without regard to conflict of laws principles. This agreement\nmay be amended only in a writing signed by the Company and you. No failure or delay by the Company in exercising any right hereunder or any\npartial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nExcept as otherwise expressly provided herein, your obligations under this agreement shall remain in effect for a period of two years from the\ndate hereof, unless and until this agreement is terminated by the Company or is superseded by another agreement with you that concerns your use of\nthe Evaluation Material.\nPlease confirm that the foregoing is in accordance with your understanding by signing and returning to us a copy of this letter.\nVery truly yours,\nVNUS Medical Technologies, Inc.\nBy:\n/S/ BRIAN E. FARLEY\nName:\nBrian E. Farley\nTitle:\nPresident and CEO\nCONFIDENTIAL\nFebruary 3, 2009\n4\nAccepted and agreed to as of this 3rd day of February, 2009:\nTyco Healthcare Group LP,\nd/b/a Covidien\nBy:\n/S/ JOHN H. MASTERSON\nName:\nJohn H. Masterson\nTitle:\nVice President\nCONFIDENTIAL\nFebruary 3, 2009\n5\nEXHIBIT A\nName\nCurrent Title\nDieter Bielang\nSenior Director, International Sales and Marketing\nBrian E. Farley\nPresident and Chief Executive Officer\nWilliam A. Franklin\nVice President, Regulatory Affairs and Quality Assurance\nKirti Kamdar\nSenior Vice President, Research & Development\nMark Kertz\nSenior Director, Intellectual Property\nTom Miller\nSenior Director, Information Technology\nScott Murcray\nController and Chief Accounting Officer\nPeter Osborne\nChief Financial Officer and Vice President, Finance and Administration\nMohan F. Sancheti\nSenior Vice President, Manufacturing\nMark S. Saxton\nVice President, U.S . Sales\nGuido Smeets\nVice President of Clinical Research and Chief Medical Officer\nDonald J. Todd\nVice President of Marketing\nCindee Van Vleck\nSenior Director of Human Resources\nCONFIDENTIAL\nFebruary 3, 2009\n6
bb874bf35c9ec19768d27fab8a4abb91.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties”\nand individually as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity\ninterests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-2-\ncooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to\nthe Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to\nreturn or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any\nof Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n-3-\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n-4-\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any\nsuch agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n-5-\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries or other affiliates.\n-6-\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S . source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n-8-\nARMO BIOSCIENCES, INC.\nELI LILLY AND COMPANY\nBy: /s/ Peter Van Vlasselaer\nBy: /s/ Timothy C. Dolan\nTitle: CEO\nTitle: V.P., Business Development\nAddress: 575 Chesapeake Dr.\nAddress: Lilly Corporate Center\nRedwood City, CA 94063\nIndianapolis, IN	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties”\nand individually as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity\ninterests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-\ncooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to\nthe Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to\nreturn or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any\nof Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n3-\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n4-\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any\nsuch agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\na) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiar\npurp g y p y\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries or other affiliates.\n-6-\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n8-\nARMO BIOSCIENCES, INC.\nBy:_/s/ Peter Van Vlasselaer Title: CEO\nAddress: 575 Chesapeake Dr. Redwood City, CA 94063\nELI LILLY AND COMPANY\nBy: /s/ Timothy C. Dolan\nTitle: V.P., Business Development Address: Lilly Corporate Center Indianapolis, IN	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT ("Agreement") is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation ("Seller"), and Eli Lilly and Company, an Indiana corporation ("Buyer" and with Seller referred to collectively as the "Parties"\nand individually as a "Party").\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer's acquisition of all of the equity\ninterests in Seller (a "Transaction"), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party's subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the "Provider"; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the "Recipient".) This Agreement sets forth the Parties'\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient's Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider's Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's Confidentia\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider's Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the "Provider Contact Person").\nNeither the Recipient nor any of the Recipient's Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider's Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient's Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider's Confidential Information, and neither the Provider nor any of its Representatives will have any liability to\nthe\nRecipient or to any of the Recipient's Representatives on any basis (including, without limitation, in contract, tort or under United\nStates\nfederal\nor\nstate\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider's Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a "Definitive Agreement") will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient's disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a "Permitted Representatives Notice"), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an "Impermissible Representative"). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient's receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient's Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider's Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-2-\ncooperate with the Provider and the Provider's Representatives (at the Provider's sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy\nin\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will promptly deliver to\nthe Provider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient's\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required\nto\nreturn or destroy copies of Confidential Information created pursuant to Recipient's automatic archiving and back-up procedures. Notwithstanding\nthe\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit\nnor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party's direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7.\nStandstill Provision. During the 12 month period commencing on the date of this Agreement (the "Standstill Period"), neither Buyer nor any\nof Buyer's subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any "solicitation" of "proxies" (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n-3-\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller's Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties' entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than\n50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n-4-\n8.\nNo\nObligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany\nsuch\nagreement\nor\ntransaction\nwith\nthe\nother\nParty.\nEach\nParty\nrecognizes\nthat,\nexcept\nas\nexpressly\nprovided\nin\nany\nlegally\nbinding\nwritten\nagreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party's Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill\noperate\nas\na\nwaiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party's Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party's Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition\nto\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand\nsubmits\nto the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives\nthe right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of\nor\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider's "Confidential Information" will be deemed to include only the\nfollowing:\n-5-\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of the\nRecipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider's Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidentia Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party's subsidiaries or other affiliates.\n-6-\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient's Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective\naction, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties' mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish\nthe\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n-8-\nARMO BIOSCIENCES, INC.\nELI LILLY AND COMPANY\nBy: /s/ Peter Van Vlasselaer\nBy: /s/ Timothy. C. Dolan\nTitle: CEO\nTitle: V.P., Business Development\nAddress: 575 Chesapeake Dr.\nAddress: Lilly Corporate Center\nRedwood City, CA 94063\nIndianapolis, IN	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties”\nand individually as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity\ninterests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-2-\ncooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to\nthe Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to\nreturn or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any\nof Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n-3-\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n-4-\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any\nsuch agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n-5-\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries or other affiliates.\n-6-\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S . source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n-8-\nARMO BIOSCIENCES, INC.\nELI LILLY AND COMPANY\nBy: /s/ Peter Van Vlasselaer\nBy: /s/ Timothy C. Dolan\nTitle: CEO\nTitle: V.P., Business Development\nAddress: 575 Chesapeake Dr.\nAddress: Lilly Corporate Center\nRedwood City, CA 94063\nIndianapolis, IN
bd9446287c6cd3222d532f945684145e.pdf	effective_date jurisdiction party term	EXHIBIT A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “ Agreement”) is entered into as of October , 2007 (the “Effective Date”), by and between AVI\nBioPharma, Inc., an Oregon corporation (the “Company”) and\n(the “Recipient”) (each, a “Party” and,\ncollectively, the “Parties”).\nRECITALS\nA.\nThe Recipient is a consultant to the Company and will be providing professional services to the Company in accordance with\nthat certain Professional Services Agreement dated as of the day of October 2007 (the “Consulting Agreement”).\nB.\nIn connection with the Consulting Agreement, the Company will disclose to the Recipient certain material, non-public\ninformation about the Company. As a condition precedent to providing such information to the Recipient, the Parties have agreed to enter into\nthis Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants expressed herein and other valuable consideration, the receipt and\nsufficiency of which are acknowledged, the Parties agree as follow\nI.\nDEFINITIONS. FOR THE PURPOSES OF THIS AGREEMENT:\nA.\n“Affiliate” of a Party means any entity that a Party directly or indirectly controls, or is controlled by, including but not limited\nto employees, agents, and entities.\nB.\n“Confidential Information” means any business, marketing, technical, or other information in tangible or intangible form,\ndisclosed by the Company to the Recipient that, at the time of disclosure, is designated as confidential (or like designation), is\ndisclosed in circumstances of confidence, or would be understood by the Parties (or their Affiliates), exercising reasonable\nbusiness judgment, to be confidential, specifically including Company business plans, product concepts, technical know-how,\nmethods of and other information relating to operations, development strategies, distribution arrangements, financial data,\nmarketing plans, and business practices, policies, or objectives.\nII.\nDISCLOSURE, USE RESTRICTIONS AND PROPRIETARY RIGHTS.\nA.\nDisclosure and Use.\n1.\nAny Confidential Information received by the Recipient shall be retained in confidence, disclosed only to Affiliates\nsolely on a need to know basis, and used only in accordance with this Agreement. The Recipient shall use\nat least the same degree of care as it uses to protect his/its own confidential information of a similar nature, but no less\nthan reasonable care, to prevent the unauthorized use or disclosure of the Confidential Information. The obligations\nof confidence set forth in this Agreement shall extend to any of the Recipient’s Affiliates, including the Recipient’s\nattorneys, advisors, directors, executive officers and employees that may receive Confidential Information. The\nRecipient shall notify its attorney(s), advisors, directors, officers and Affiliates of the requirements of this Agreement\nand require that such persons comply with the requirements of this Agreement.\n2.\nIn accordance with Section 2.4 below, the Recipient shall notify the Company immediately upon discovery of any\nunauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the Recipient, its\nofficers, directors, advisors, attorneys, employees, or Affiliates, and will cooperate with the Company to assist the\nCompany to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\nB.\nExemptions. The Recipient shall not be bound by the obligations restricting disclosure and use set forth in this Agreement\nwith respect to Confidential Information, or any part thereof, which: (i) was known by the Recipient prior to disclosure, except\nif such Confidential Information, or any part thereof, became known to Recipient as a result of or in connection with prior\npositions or roles Recipient had with the Company that allowed Recipient to know or become exposed to or aware of such\nConfidential Information or any part thereof, in which case such Confidential Information or such part thereof shall be deemed\nto be Confidential Information subject to subparagraphs (ii), (iii), (iv) and (v) herein; (ii) was lawfully in the public domain\nprior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (iii) was disclosed to the\nRecipient by a third party, provided such third party is not in breach of any confidentiality obligation in respect of such\ninformation; (iv) is independently developed by the Recipient, where the burden is on the Recipient to prove independent\ndevelopment; or (v) is disclosed when such disclosure is compelled pursuant to legal, judicial or administrative proceedings, or\notherwise required by law, subject to the Recipient giving reasonable prior notice to the Company Party to allow the Company\nto seek protective court orders. The foregoing exemptions shall extend to any Affiliates that receive or have received\nConfidential Information.\nC.\nProprietary Rights. The Recipient (including its Affiliates) shall not acquire any rights, express or implied, in the\nConfidential Information of the Company (including its Affiliates), except for the limited use specified in this Agreement. The\nConfidential Information, including all right, title and interest therein, remain the sole and exclusive property of the Company\n(and its Affiliates).\nD.\nCompulsory Disclosure. If the Recipient is legally compelled to disclose any of the Confidential Information, the Recipient\nshall promptly provide written notice to the Company to enable the Company (at its sole cost and expense) to seek a protective\norder or other appropriate remedy to avoid public or third-party disclosure of its Confidential Information. If such protective\norder or other remedy is not obtained, the Recipient shall furnish only so much of the Confidential Information that it is legally\ncompelled to disclose, and shall exercise its commercially reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Confidential Information. The Recipient shall cooperate with and assist the Company, at the\nCompany’s expense, in seeking any protective order or other relief requested pursuant to this Section 2.4 .\nIII.\nREMEDIES. THE RECIPIENT AGREES THAT ANY VIOLATION OR THREATENED VIOLATION OF THIS\nAGREEMENT WILL CAUSE IRREPARABLE HARM TO THE COMPANY, ENTITLING THE COMPANY TO SEEK\nINJUNCTIVE RELIEF IN ADDITION TO ALL OTHER LEGAL REMEDIES.\nIV.\nTERM OF OBLIGATION.\nA.\nTerm. The confidentiality obligations set forth in this Agreement shall continue with regard to an item of information as long\nas that information continues to meet the definition of “Confidential Information” and is not exempt under Section 2.2.\nB.\nReturn of Confidential Information. At any time upon written request by the Company, the Recipient shall return or destroy\nall documents or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing\nthat such destruction or return has been accomplished. The confidentiality obligations set forth in this Agreement shall survive\nany termination of the Agreement.\nV.\nSECURITIES LAWS. THE RECIPIENT HEREBY ACKNOWLEDGES THAT THE COMPANY IS A PUBLICLY TRADED\nCOMPANY. THE RECIPIENT HEREBY ACKNOWLEDGES THAT HE IS AWARE THAT FEDERAL AND STATE SECURITIES\nLAWS PROHIBIT ANY PERSON WHO HAS RECEIVED MATERIAL, NON-PUBLIC INFORMATION (INFORMATION ABOUT\nTHE COMPANY OR ITS BUSINESS THAT IS NOT GENERALLY AVAILABLE TO THE PUBLIC) CONCERNING THE\nCOMPANY, INCLUDING, WITHOUT LIMITATION, THE MATTERS THAT ARE THE SUBJECT OF THIS AGREEMENT, FROM\nPURCHASING OR SELLING SECURITIES OF THE COMPANY WHILE IN POSSESSION OF SUCH NON-PUBLIC\nINFORMATION, AND FROM COMMUNICATING THAT INFORMATION TO ANY OTHER PERSON WHO MAY PURCHASE\nOR SELL SECURITIES OF THE COMPANY OR OTHERWISE VIOLATE SUCH LAWS. THE RECIPIENT SPECIFICALLY\nACKNOWLEDGE THESE OBLIGATIONS AND AGREES TO BE BOUND BY THEM.\nVI.\nGENERAL.\nA.\nWaiver. The failure of the Company to claim a breach of any term of this Agreement shall not constitute a waiver of such\nbreach or the right of the Company to enforce any subsequent breach of such term.\nB.\nAssignment. This Agreement shall be binding on and inure to the benefit of each Party and their respective successors and\nassigns.\nC.\nSeverability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the Parties agree\nthat unless such provision materially affects the intent and purpose of this Agreement, such invalidity, void ability or\nunenforceability shall not affect the validity of this Agreement nor the remaining provisions herein.\nD.\nGoverning Law. This Agreement shall be governed by the laws of the State of Oregon, without regard to its conflict of law\nprinciples. The jurisdiction for any legal action shall be exclusively a state or federal court in Multnomah County, Oregon.\nE.\nEntire Agreement. This Agreement constitutes the entire agreement between the parties on the subject matter hereof and\nsupersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This\nAgreement may not be modified or waived orally and may be modified only in a writing signed by a duly authorized\nrepresentative of both parties.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives and to be\neffective on the Effective Date.\nCompany\nRecipient\nAVI BioPharma, Inc.\nBy:\nPrint Name: K. Michael Forrest\nPrint Name:\nTitle: Interim CEO\nDate\nDate:	EXHIBIT A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is entered into as of October , 2007 (the “Effective Date”), by and between AVI\nBioPharma, Inc., an Oregon corporation (the “Company”) and (the “Recipient”) (each, a “Party” and,\ncollectively, the “Parties™).\nRECITALS\nA. The Recipient is a consultant to the Company and will be providing professional services to the Company in accordance with\nthat certain Professional Services Agreement dated as of the  day of October 2007 (the “Consulting Agreement”).\nB. In connection with the Consulting Agreement, the Company will disclose to the Recipient certain material, non-public\ninformation about the Company. As a condition precedent to providing such information to the Recipient, the Parties have agreed to enter into\nthis Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants expressed herein and other valuable consideration, the receipt and\nsufficiency of which are acknowledged, the Parties agree as follow\nL DEFINITIONS. FOR THE PURPOSES OF THIS AGREEMENT:\nA. “Affiliate” of a Party means any entity that a Party directly or indirectly controls, or is controlled by, including but not limited\nto employees, agents, and entities.\nII. “Confidential Information” means any business, marketing, technical, or other information in tangible or intangible form,\ndisclosed by the Company to the Recipient that, at the time of disclosure, is designated as confidential (or like designation), is\ndisclosed in circumstances of confidence, or would be understood by the Parties (or their Affiliates), exercising reasonable\nbusiness judgment, to be confidential, specifically including Company business plans, product concepts, technical know-how,\nmethods of and other information relating to operations, development strategies, distribution arrangements, financial data,\nmarketing plans, and business practices, policies, or objectives.\nDISCLOSURE, USE RESTRICTIONS AND PROPRIETARY RIGHTS. Disclosure and Use.\n1. Any Confidential Information received by the Recipient shall be retained in confidence, disclosed only to Affiliates\nsolely on a need to know basis, and used only in accordance with this Agreement. The Recipient shall use\n \n \nII1. at least the same degree of care as it uses to protect his/its own confidential information of a similar nature, but no less\nthan reasonable care, to prevent the unauthorized use or disclosure of the Confidential Information. The obligations\nof confidence set forth in this Agreement shall extend to any of the Recipient’s Affiliates, including the Recipient’s\nattorneys, advisors, directors, executive officers and employees that may receive Confidential Information. The\nRecipient shall notify its attorney(s), advisors, directors, officers and Affiliates of the requirements of this Agreement\nand require that such persons comply with the requirements of this Agreement.\n2. In accordance with Section 2.4 below, the Recipient shall notify the Company immediately upon discovery of any\nunauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the Recipient, its\nofficers, directors, advisors, attorneys, employees, or Affiliates, and will cooperate with the Company to assist the\nCompany to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\nExemptions. The Recipient shall not be bound by the obligations restricting disclosure and use set forth in this Agreement\nwith respect to Confidential Information, or any part thereof, which: (i) was known by the Recipient prior to disclosure, except\nif such Confidential Information, or any part thereof, became known to Recipient as a result of or in connection with prior\npositions or roles Recipient had with the Company that allowed Recipient to know or become exposed to or aware of such\nConfidential Information or any part thereof, in which case such Confidential Information or such part thereof shall be deemed\nto be Confidential Information subject to subparagraphs (ii), (iii), (iv) and (v) herein; (ii) was lawfully in the public domain\nprior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (iii) was disclosed to the\nRecipient by a third party, provided such third party is not in breach of any confidentiality obligation in respect of such\ninformation; (iv) is independently developed by the Recipient, where the burden is on the Recipient to prove independent\ndevelopment; or (v) is disclosed when such disclosure is compelled pursuant to legal, judicial or administrative proceedings, or\notherwise required by law, subject to the Recipient giving reasonable prior notice to the Company Party to allow the Company\nto seek protective court orders. The foregoing exemptions shall extend to any Affiliates that receive or have received\nConfidential Information.\nProprietary Rights. The Recipient (including its Affiliates) shall not acquire any rights, express or implied, in the\nConfidential Information of the Company (including its Affiliates), except for the limited use specified in this Agreement. The\nConfidential Information, including all right, title and interest therein, remain the sole and exclusive property of the Company\n(and its Affiliates).\nCompulsory Disclosure. If the Recipient is legally compelled to disclose any of the Confidential Information, the Recipient\nshall promptly provide written notice to the Company to enable the Company (at its sole cost and expense) to seek a protective\norder or other appropriate remedy to avoid public or third-party disclosure of its Confidential Information. If such protective\norder or other remedy is not obtained, the Recipient shall furnish only so much of the Confidential Information that it is legally\ncompelled to disclose, and shall exercise its commercially reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Confidential Information. The Recipient shall cooperate with and assist the Company, at the\nCompany’s expense, in seeking any protective order or other relief requested pursuant to this Section 2.4.\nREMEDIES. THE RECIPIENT AGREES THAT ANY VIOLATION OR THREATENED VIOLATION OF THIS AGREEMENT WILL CAUSE IRREPARABLE HARM TO THE COMPANY, ENTITLING THE COMPANY TO SEEK INJUNCTIVE RELIEF IN ADDITION TO ALL OTHER LEGAL REMEDIES. IV. TERM OF OBLIGATION. Term. The confidentiality obligations set forth in this Agreement shall continue with regard to an item of information as long\nas that information continues to meet the definition of “Confidential Information” and is not exempt under Section 2.2.\nB. Return of Confidential Information. At any time upon written request by the Company, the Recipient shall return or destroy\nall documents or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing\nthat such destruction or return has been accomplished. The confidentiality obligations set forth in this Agreement shall survive\nany termination of the Agreement.\nV. SECURITIES LAWS. THE RECIPIENT HEREBY ACKNOWLEDGES THAT THE COMPANY IS A PUBLICLY TRADED\nCOMPANY. THE RECIPIENT HEREBY ACKNOWLEDGES THAT HE IS AWARE THAT FEDERAL AND STATE SECURITIES\nLAWS PROHIBIT ANY PERSON WHO HAS RECEIVED MATERIAL, NON-PUBLIC INFORMATION (INFORMATION ABOUT\nTHE COMPANY OR ITS BUSINESS THAT IS NOT GENERALLY AVAILABLE TO THE PUBLIC) CONCERNING THE\nCOMPANY, INCLUDING, WITHOUT LIMITATION, THE MATTERS THAT ARE THE SUBJECT OF THIS AGREEMENT, FROM\nPURCHASING OR SELLING SECURITIES OF THE COMPANY WHILE IN POSSESSION OF SUCH NON-PUBLIC\nINFORMATION, AND FROM COMMUNICATING THAT INFORMATION TO ANY OTHER PERSON WHO MAY PURCHASE\nOR SELL SECURITIES OF THE COMPANY OR OTHERWISE VIOLATE SUCH LAWS. THE RECIPIENT SPECIFICALLY\nACKNOWLEDGE THESE OBLIGATIONS AND AGREES TO BE BOUND BY THEM.\n \nVL GENERAL.\nA. Waiver. The failure of the Company to claim a breach of any term of this Agreement shall not constitute a waiver of such\nbreach or the right of the Company to enforce any subsequent breach of such term.\nB. Assignment. This Agreement shall be binding on and inure to the benefit of each Party and their respective successors and\nassigns.\nC. Severability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the Parties agree\nthat unless such provision materially affects the intent and purpose of this Agreement, such invalidity, void ability or\nunenforceability shall not affect the validity of this Agreement nor the remaining provisions herein.\nD. Governing Law. This Agreement shall be governed by the laws of the State of Oregon, without regard to its conflict of law\nprinciples. The jurisdiction for any legal action shall be exclusively a state or federal court in Multnomah County, Oregon.\nE. Entire Agreement. This Agreement constitutes the entire agreement between the parties on the subject matter hereof and\nsupersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This\nAgreement may not be modified or waived orally and may be modified only in a writing signed by a duly authorized\nrepresentative of both parties.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives and to be\neffective on the Effective Date.\nCompany Recipient\nAVI BioPharma, Inc.\nBy:\nPrint Name: K. Michael Forrest Print Name:\nTitle: Interim CEO Date\nDate:\n	EXHIBIT A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this "Agreement") is entered into as of October 2007 (the "Effective Date"), by and between AVI\nBioPharma, Inc., an Oregon corporation (the "Company") and\n(the "Recipient") (each, a "Party" and,\ncollectively, the "Parties").\nRECITALS\nA.\nThe Recipient is a consultant to the Company and will be providing professional services to the Company in accordance with\nthat certain Professional Services Agreement dated as of the day of October 2007 (the "Consulting Agreement").\nB.\nIn connection with the Consulting Agreement, the Company will disclose to the Recipient certain material, non-public\ninformation about the Company. As a condition precedent to providing such information to the Recipient, the Parties have agreed to enter into\nthis Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants expressed herein and other valuable consideration, the receipt and\nsufficiency of which are acknowledged, the Parties agree as follow\nI.\nDEFINITIONS. FOR THE PURPOSES OF THIS AGREEMENT:\nA.\n"Affiliate" of a Party means any entity that a Party directly or indirectly controls, or is controlled by, including but not limited\nto employees, agents, and entities.\nB.\n"Confidential Information" means any business, marketing, technical, or other information in tangible or intangible form,\ndisclosed by the Company to the Recipient that, at the time of disclosure, is designated as confidential (or like designation), is\ndisclosed in circumstances of confidence, or would be understood by the Parties (or their Affiliates), exercising reasonable\nbusiness judgment, to be confidential, specifically including Company business plans, product concepts, technical know-how,\nmethods of and other information relating to operations, development strategies, distribution arrangements, financial data,\nmarketing plans, and business practices, policies, or objectives.\nII.\nDISCLOSURE, USE RESTRICTIONS AND PROPRIETARY RIGHTS.\nA.\nDisclosure and Use.\n1.\nAny Confidential Information received by the Recipient shall be retained in confidence, disclosed only to Affiliates\nsolely on a need to know basis, and used only in accordance with this Agreement. The Recipient shall use\nat least the same degree of care as it uses to protect his/its own confidential information of a similar nature, but no less\nthan reasonable care, to prevent the unauthorized use or disclosure of the Confidential Information. The obligations\nof confidence set forth in this Agreement shall extend to any of the Recipient's Affiliates, including the Recipient's\nattorneys, advisors, directors, executive officers and employees that may receive Confidentia Information. The\nRecipient shall notify its attorney(s), advisors, directors, officers and Affiliates of the requirements of this Agreement\nand require that such persons comply with the requirements of this Agreement.\n2.\nIn accordance with Section 2.4 below, the Recipient shall notify the Company immediately upon discovery of any\nunauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the Recipient, its\nofficers, directors, advisors, attorneys, employees, or Affiliates, and will cooperate with the Company to assist the\nCompany to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\nB.\nExemptions. The Recipient shall not be bound by the obligations restricting disclosure and use set forth in this Agreement\nwith respect to Confidential Information, or any part thereof, which: (i) was known by the Recipient prior to disclosure, except\nif such Confidential Information, or any part thereof, became known to Recipient as a result of or in connection with prior\npositions or roles Recipient had with the Company that allowed Recipient to know or become exposed to or aware of such\nConfidential Information or any part thereof, in which case such Confidential Information or such part thereof shall be deemed\nto be Confidential Information subject to subparagraphs (ii), (iii), (iv) and (v) herein; (ii) was lawfully in the public domain\nprior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (iii) was disclosed to the\nRecipient by a third party, provided such third party is not in breach of any confidentiality obligation in respect of such\ninformation; (iv) is independently developed by the Recipient, where the burden is on the Recipient to prove independent\ndevelopment; or (v) is disclosed when such disclosure is compelled pursuant to legal, judicial or administrative proceedings, or\notherwise required by law, subject to the Recipient giving reasonable prior notice to the Company Party to allow the Company\nto seek protective court orders. The foregoing exemptions shall extend to any Affiliates that receive or have received\nConfidential Information.\nC.\nProprietary Rights. The Recipient (including its Affiliates) shall not acquire any rights, express or implied, in the\nConfidentia Information of the Company (including its Affiliates), except for the limited use specified in this Agreement. The\nConfidential Information, including all right, title and interest therein, remain the sole and exclusive property of the Company\n(and its Affiliates).\nD.\nCompulsory Disclosure. If the Recipient is legally compelled to disclose any of the Confidential Information the Recipient\nshall promptly provide written notice to the Company to enable the Company (at its sole cost and expense) to seek a protective\norder or other appropriate remedy to avoid public or third-party disclosure of its Confidential Information. If such protective\norder or other remedy is not obtained, the Recipient shall furnish only so much of the Confidential Information that it is legally\ncompelled to disclose, and shall exercise its commercially reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Confidential Information. The Recipient shall cooperate with and assist the Company, at the\nCompany's expense, in seeking any protective order or other relief requested pursuant to this Section 2.4.\nIII.\nREMEDIES. THE RECIPIENT AGREES THAT ANY VIOLATION OR THREATENED VIOLATION OF THIS\nAGREEMENT WILL CAUSE IRREPARABLE HARM TO THE COMPANY, ENTITLING THE COMPANY TO SEEK\nINJUNCTIVE RELIEF IN ADDITION TO ALL OTHER LEGAL REMEDIES.\nIV.\nTERM OF OBLIGATION.\nA.\nTerm. The confidentiality obligations set forth in this Agreement shall continue with regard to an item of information as long\nas that information continues to meet the definition of "Confidential Information" and is not exempt under Section 2.2.\nB.\nReturn of Confidential Information. At any time upon written request by the Company, the Recipient shall return or destroy\nall\ndocuments or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing\nthat such destruction or return has been accomplished. The confidentiality obligations set forth in this Agreement shall survive\nany termination of the Agreement.\nV.\nSECURITIES LAWS. THE RECIPIENT HEREBY ACKNOWLEDGES THAT THE COMPANY IS A PUBLICLY TRADED\nCOMPANY. THE RECIPIENT HEREBY ACKNOWLEDGES THAT HE IS AWARE THAT FEDERAL AND STATE SECURITIES\nLAWS PROHIBIT ANY PERSON WHO HAS RECEIVED MATERIAL, NON-PUBLIC INFORMATION (INFORMATION ABOUT\nTHE\nCOMPANY OR ITS BUSINESS THAT IS NOT GENERALLY AVAILABLE TO THE PUBLIC) CONCERNING THE\nCOMPANY, INCLUDING, WITHOUT LIMITATION, THE MATTERS THAT ARE THE SUBJECT OF THIS AGREEMENT, FROM\nPURCHASING OR SELLING SECURITIES OF THE COMPANY WHILE IN POSSESSION OF SUCH NON-PUBLIC\nINFORMATION, AND FROM COMMUNICATING THAT INFORMATION TO ANY OTHER PERSON WHO MAY PURCHASE\nOR SELL SECURITIES OF THE COMPANY OR OTHERWISE VIOLATE SUCH LAWS. THE RECIPIENT SPECIFICALLY\nACKNOWLEDGE THESE OBLIGATIONS AND AGREES TO BE BOUND BY THEM.\nVI.\nGENERAL.\nA.\nWaiver. The failure of the Company to claim a breach of any term of this Agreement shall not constitute a waiver of such\nbreach or the right of the Company to enforce any subsequent breach of such term.\nB.\nAssignment. This Agreement shall be binding on and inure to the benefit of each Party and their respective successors and\nassigns.\nC.\nSeverability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the Parties agree\nthat unless such provision materially affects the intent and purpose of this Agreement, such invalidity, void ability or\nunenforceability shall not affect the validity of this Agreement nor the remaining provisions herein.\nD.\nGoverning Law. This Agreement shall be governed by the laws of the State of Oregon, without regard to its conflict of law\nprinciples. The jurisdiction for any legal action shall be exclusively a state or federal court in Multnomah County, Oregon.\nE.\nEntire Agreement. This Agreement constitutes the entire agreement between the parties on the subject matter hereof and\nsupersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This\nAgreement may not be modified or waived orally and may be modified only in a writing signed by a duly authorized\nrepresentative of both parties.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives and to be\neffective on the Effective Date.\nCompany\nRecipient\nAVI BioPharma, Inc.\nBy:\nPrint Name: K. Michael Forrest\nPrint Name:\nTitle: Interim CEO\nDate\nDate:	EXHIBIT A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “ Agreement”) is entered into as of October , 2007 (the “Effective Date”), by and between AVI\nBioPharma, Inc., an Oregon corporation (the “Company”) and\n(the “Recipient”) (each, a “Party” and,\ncollectively, the “Parties”).\nRECITALS\nA.\nThe Recipient is a consultant to the Company and will be providing professional services to the Company in accordance with\nthat certain Professional Services Agreement dated as of the day of October 2007 (the “Consulting Agreement”).\nB.\nIn connection with the Consulting Agreement, the Company will disclose to the Recipient certain material, non-public\ninformation about the Company. As a condition precedent to providing such information to the Recipient, the Parties have agreed to enter into\nthis Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants expressed herein and other valuable consideration, the receipt and\nsufficiency of which are acknowledged, the Parties agree as follow\nI.\nDEFINITIONS. FOR THE PURPOSES OF THIS AGREEMENT:\nA.\n“Affiliate” of a Party means any entity that a Party directly or indirectly controls, or is controlled by, including but not limited\nto employees, agents, and entities.\nB.\n“Confidential Information” means any business, marketing, technical, or other information in tangible or intangible form,\ndisclosed by the Company to the Recipient that, at the time of disclosure, is designated as confidential (or like designation), is\ndisclosed in circumstances of confidence, or would be understood by the Parties (or their Affiliates), exercising reasonable\nbusiness judgment, to be confidential, specifically including Company business plans, product concepts, technical know-how,\nmethods of and other information relating to operations, development strategies, distribution arrangements, financial data,\nmarketing plans, and business practices, policies, or objectives.\nII.\nDISCLOSURE, USE RESTRICTIONS AND PROPRIETARY RIGHTS.\nA.\nDisclosure and Use.\n1.\nAny Confidential Information received by the Recipient shall be retained in confidence, disclosed only to Affiliates\nsolely on a need to know basis, and used only in accordance with this Agreement. The Recipient shall use\nat least the same degree of care as it uses to protect his/its own confidential information of a similar nature, but no less\nthan reasonable care, to prevent the unauthorized use or disclosure of the Confidential Information. The obligations\nof confidence set forth in this Agreement shall extend to any of the Recipient’s Affiliates, including the Recipient’s\nattorneys, advisors, directors, executive officers and employees that may receive Confidential Information. The\nRecipient shall notify its attorney(s), advisors, directors, officers and Affiliates of the requirements of this Agreement\nand require that such persons comply with the requirements of this Agreement.\n2.\nIn accordance with Section 2.4 below, the Recipient shall notify the Company immediately upon discovery of any\nunauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the Recipient, its\nofficers, directors, advisors, attorneys, employees, or Affiliates, and will cooperate with the Company to assist the\nCompany to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\nB.\nExemptions. The Recipient shall not be bound by the obligations restricting disclosure and use set forth in this Agreement\nwith respect to Confidential Information, or any part thereof, which: (i) was known by the Recipient prior to disclosure, except\nif such Confidential Information, or any part thereof, became known to Recipient as a result of or in connection with prior\npositions or roles Recipient had with the Company that allowed Recipient to know or become exposed to or aware of such\nConfidential Information or any part thereof, in which case such Confidential Information or such part thereof shall be deemed\nto be Confidential Information subject to subparagraphs (ii), (iii), (iv) and (v) herein; (ii) was lawfully in the public domain\nprior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (iii) was disclosed to the\nRecipient by a third party, provided such third party is not in breach of any confidentiality obligation in respect of such\ninformation; (iv) is independently developed by the Recipient, where the burden is on the Recipient to prove independent\ndevelopment; or (v) is disclosed when such disclosure is compelled pursuant to legal, judicial or administrative proceedings, or\notherwise required by law, subject to the Recipient giving reasonable prior notice to the Company Party to allow the Company\nto seek protective court orders. The foregoing exemptions shall extend to any Affiliates that receive or have received\nConfidential Information.\nC.\nProprietary Rights. The Recipient (including its Affiliates) shall not acquire any rights, express or implied, in the\nConfidential Information of the Company (including its Affiliates), except for the limited use specified in this Agreement. The\nConfidential Information, including all right, title and interest therein, remain the sole and exclusive property of the Company\n(and its Affiliates).\nD.\nCompulsory Disclosure. If the Recipient is legally compelled to disclose any of the Confidential Information, the Recipient\nshall promptly provide written notice to the Company to enable the Company (at its sole cost and expense) to seek a protective\norder or other appropriate remedy to avoid public or third-party disclosure of its Confidential Information. If such protective\norder or other remedy is not obtained, the Recipient shall furnish only so much of the Confidential Information that it is legally\ncompelled to disclose, and shall exercise its commercially reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Confidential Information. The Recipient shall cooperate with and assist the Company, at the\nCompany’s expense, in seeking any protective order or other relief requested pursuant to this Section 2.4 .\nIII.\nREMEDIES. THE RECIPIENT AGREES THAT ANY VIOLATION OR THREATENED VIOLATION OF THIS\nAGREEMENT WILL CAUSE IRREPARABLE HARM TO THE COMPANY, ENTITLING THE COMPANY TO SEEK\nINJUNCTIVE RELIEF IN ADDITION TO ALL OTHER LEGAL REMEDIES.\nIV.\nTERM OF OBLIGATION.\nA.\nTerm. The confidentiality obligations set forth in this Agreement shall continue with regard to an item of information as long\nas that information continues to meet the definition of “Confidential Information” and is not exempt under Section 2.2.\nB.\nReturn of Confidential Information. At any time upon written request by the Company, the Recipient shall return or destroy\nall documents or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing\nthat such destruction or return has been accomplished. The confidentiality obligations set forth in this Agreement shall survive\nany termination of the Agreement.\nV.\nSECURITIES LAWS. THE RECIPIENT HEREBY ACKNOWLEDGES THAT THE COMPANY IS A PUBLICLY TRADED\nCOMPANY. THE RECIPIENT HEREBY ACKNOWLEDGES THAT HE IS AWARE THAT FEDERAL AND STATE SECURITIES\nLAWS PROHIBIT ANY PERSON WHO HAS RECEIVED MATERIAL, NON-PUBLIC INFORMATION (INFORMATION ABOUT\nTHE COMPANY OR ITS BUSINESS THAT IS NOT GENERALLY AVAILABLE TO THE PUBLIC) CONCERNING THE\nCOMPANY, INCLUDING, WITHOUT LIMITATION, THE MATTERS THAT ARE THE SUBJECT OF THIS AGREEMENT, FROM\nPURCHASING OR SELLING SECURITIES OF THE COMPANY WHILE IN POSSESSION OF SUCH NON-PUBLIC\nINFORMATION, AND FROM COMMUNICATING THAT INFORMATION TO ANY OTHER PERSON WHO MAY PURCHASE\nOR SELL SECURITIES OF THE COMPANY OR OTHERWISE VIOLATE SUCH LAWS. THE RECIPIENT SPECIFICALLY\nACKNOWLEDGE THESE OBLIGATIONS AND AGREES TO BE BOUND BY THEM.\nVI.\nGENERAL.\nA.\nWaiver. The failure of the Company to claim a breach of any term of this Agreement shall not constitute a waiver of such\nbreach or the right of the Company to enforce any subsequent breach of such term.\nB.\nAssignment. This Agreement shall be binding on and inure to the benefit of each Party and their respective successors and\nassigns.\nC.\nSeverability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the Parties agree\nthat unless such provision materially affects the intent and purpose of this Agreement, such invalidity, void ability or\nunenforceability shall not affect the validity of this Agreement nor the remaining provisions herein.\nD.\nGoverning Law. This Agreement shall be governed by the laws of the State of Oregon, without regard to its conflict of law\nprinciples. The jurisdiction for any legal action shall be exclusively a state or federal court in Multnomah County, Oregon.\nE.\nEntire Agreement. This Agreement constitutes the entire agreement between the parties on the subject matter hereof and\nsupersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This\nAgreement may not be modified or waived orally and may be modified only in a writing signed by a duly authorized\nrepresentative of both parties.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives and to be\neffective on the Effective Date.\nCompany\nRecipient\nAVI BioPharma, Inc.\nBy:\nPrint Name: K. Michael Forrest\nPrint Name:\nTitle: Interim CEO\nDate\nDate:
c0aa169f5121198b37859459b63b8707.pdf	effective_date jurisdiction party term	EX-10.35 2 a2230860zex-10_35.htm EX-10.35\nExhibit 10.35\nAMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered\ninto this\nth day of\n,\n20 , by and between The Travelers Companies, Inc., a Minnesota corporation, including its present and future\naffiliated entities (collectively, the “Company”), and XXXX (the “Employee”).\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of underwriting and selling insurance and insurance-related products throughout\nthe United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties agree\nas follows:\nSECTION 1.\nCONSIDERATION.\n(a)\nAs consideration for the execution of this Agreement, the Employee acknowledges receipt of the amount of Five Thousand\nDollars ($5,000.00) (“the Consideration”), to the extent not previously paid in connection with the execution of a prior version of this\nAgreement, which constitutes good, valuable and independent consideration for all of Employee’s covenants and obligations in this Agreement\nand is above and beyond any compensation Employee is entitled to receive from the Company.\n(b)\nAs further consideration for the execution of this Agreement, the Employee shall be eligible to participate in and receive the\nbenefits of the executive severance plan as set forth in Schedule B of The Travelers Severance Plan (as amended and restated effective January 1,\n2015) (the “Severance Plan”), in the event Employee is involuntarily terminated because of a reduction in force, involuntarily terminated for\nreasons other than Cause (as defined in Section 2) or asked to take a substantial demotion, and otherwise pursuant to the terms and conditions of\nthe Severance Plan and regardless of any amendment to or termination of the Severance Plan, except that for the purpose of Schedule B, the\nnumber of months of severance benefit shall in no event be less than 21 months and the “total monthly cash compensation” shall in no event be\nless than one twelfth (1/12) of the Employee’s base salary in effect at the time of his/her termination of employment (“final base salary”) plus the\ngreater of (i) one twelfth (1/12) of the average of his/her two most recent cash payments under the annual incentive compensation plan of the\nCompany, or (ii) one twelfth (1/12) of 125% of the final base salary for any Employee who is serving the Employer in a position of Executive\nVice President or equivalent (as determined by Company and the position of Vice Chairman is\ndeemed to be equivalent to Executive Vice President); and 110% of the final base salary of any Employee who is serving the Employer in a\nposition of Senior Vice President or equivalent (as determined by Company). Further, in order to be eligible for benefits under the Severance\nPlan, Employee will be required to, among other things, execute a Waiver and Release, as defined in the Severance Plan, in a form satisfactory to\nCompany. (The current standard non-solicitation clauses included in the Waiver and Release are attached and incorporated herein for your\nreference as Exhibit A.) Nothing in this Agreement is intended or may be interpreted to amend or revise the Severance Plan, except as set forth\nand applicable herein. Schedule B of the Severance Plan, as in effect as of the date hereof (“Schedule B”), is incorporated herein by reference.\nSuch Schedule B, together with the above described enhanced benefit set forth a schedule of minimum severance for Employee and other\nmembers of the Management Committee. To the extent the Company revises the existing Severance Plan to increase the benefits, Employee will\nbe entitled to the greater of (i) the new increased benefits under the Severance Plan or (ii) the Severance Plan benefits in existence at the time this\nAgreement was executed, in each case, with any additional enhancements as applicable pursuant to this Section 1(b). To the extent Company\nrevises the Severance Plan to decrease benefits or adopts a Severance Plan which allows for a benefit to be paid that is less than that set forth in\nSchedule B, Employee shall be entitled to the benefits set forth in Schedule B, as modified by this Section 1(b).\nSECTION 2.\nDEFINITIONS\nFor purposes of this Agreement, the following terms are defined as follows:\n(a)\n“Cause” shall mean Employee’s conviction of any felony, Employee’s willful misconduct in connection with the performance\nof Employee’s duties with Company, or Employee’s taking illegal action in Employee’s business or personal life that harms the reputation or\ndamages the good name of Company.\n(b)\n“Change of Control” shall mean any of the following (i) members of the Board of Directors on the date hereof (“Incumbent\nBoard”) cease for any reason to constitute a majority thereof, provided that persons subsequently becoming directors with the approval of\ndirectors constituting at least two-thirds (2/3) of the Incumbent Board (either by a specific vote or by approval of the proxy statement of the\nCompany in which such person is named as a nominee for director, without written objection to such nomination) will be considered as members\nof the Incumbent Board provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual\nor threatened election contest (as described in Rule 14a-11 under the Securities Exchange Act of 1934 (the “Act”)) (“Election Contest”) or any\nother actual or threatened solicitation of proxies or consents by or on behalf of any “person” (as such term is defined in Section 3(a)(9) of the\nAct) other than the Board (“Proxy Contest”), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy\nContest, shall be deemed to be a member of the Incumbent Board, or (ii) any person as defined in the Act, other than the Company, a Company\nsubsidiary, any employee benefit plan (or related trust) sponsored or maintained by the Company or any\n2\nCompany subsidiary, any employee or any group of persons including an employee (or any entity controlled by an employee or any group of\npersons including an employee) or an underwriter temporarily holding securities pursuant to an offering of such securities, is or becomes the\nbeneficial owner, directly or indirectly, of 30% or more of the company’s voting securities, or (iii) the consummation of a merger, consolidation,\nstatutory share exchange or similar form of corporate transaction involving the Company, or any of its subsidiaries that requires the approval of\nthe Company’s stockholders, whether for such transaction or the issuance of securities in the transaction, or the sale or other disposition of all or\nsubstantially all of the Company’s assets to an unaffiliated entity, unless immediately after such corporate transaction or sale, (A) more than 60%\nof the total voting securities of the corporation resulting from such corporate transaction or sale (or if applicable, the ultimate parent corporation\nthat directly or indirectly has beneficial ownership of 100% of the voting securities eligible to elect directors of the surviving company) is\nrepresented by voting securities of the Company that were outstanding immediately prior to such corporate transaction or sale (or by shares into\nwhich such Company voting securities were converted pursuant to such corporate transaction or sale) and such voting power among the holders\nthereof is in substantially the same proportion as the voting power of such Company voting securities among the holders thereof immediately\nprior to the corporate transaction or sale, (B) no person (other than any employee benefit plan (or related trust) sponsored or maintained by the\nsurviving company or the parent company), is or becomes the beneficial owner, directly or indirectly, of 30% or more of the total voting power of\nthe outstanding voting securities eligible to elect directors of the parent company (or, if there is no parent company, the surviving company) and\n(C) at least a majority of the members of the board of directors of the parent company (or, if there is no parent company, the surviving company)\nfollowing the consummation of the corporate transaction or sale were members of the Incumbent Board at the time of the Board’s approval of the\nexecution of the initial agreement providing for such corporate transaction or sale (any corporate transaction or sale which satisfies all of the\ncriteria specified in (A) (B) and (C) above shall be deemed to be a “Non-Qualifying Transaction”); or (iv) the Company’s shareholders approve a\nplan of complete liquidation or dissolution of the Company. Notwithstanding the foregoing, a Change of Control shall not be deemed to occur\nsolely because any person acquires beneficial ownership of more than 30% of the Company voting securities as a result of the acquisition of\nCompany voting securities by the Company which reduces the number of Company voting securities outstanding; provided that if after such\nacquisition by the Company such person becomes the beneficial owner of additional Company voting securities that increases the percentage of\noutstanding Company voting securities beneficially owned by such person, a Change of Control of the Company shall then occur.\n(c)\n“Constructive Discharge” shall mean conduct by the Company that would lead a reasonable person to leave employment due to\nintolerable conditions created by the Company, reduction of the Employee’s base salary (except in the event of a generally proportionate\nreduction of all of the Management Committee members’ salaries), the cessation of the Employee being a member of the Management\nCommittee (provided, however, that in the event Employee voluntarily steps down from the Management\n3\nCommittee, this Agreement shall become void three months from that date), changing Employee’s reporting relationship that results in Employee\nreporting to someone who is not a member of the Management Committee, the Chairman or the Chief Executive Officer, changing Employee’s\nreporting relationship or reducing his/her responsibilities such that it would cause a reasonable person to resign and causes Employee to resign,\nor requiring Employee to accept a position that would reasonably require relocation.\n(d)\n“Restricted Period” shall mean the twelve (12) month period following the Employee’s termination of employment.\n(e)\n“Management Committee” shall mean the most senior policy setting group of executives within the Company, excluding the\nChairman and the Chief Executive Officer.\nSECTION 3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION.\n(a)\nEmployee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents (“Confidential Information”).\nEmployee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any Confidential Information\nfor his/her own personal benefit or for the benefit of any person or entity, except that Employee may disclose Confidential Information pursuant\nto a properly issued subpoena, court order, other legal process, or official inquiry of a federal, state or local taxing authority, or other\ngovernmental agency with a legitimate legal right to know the Confidential Information. If disclosure is compelled of Employee by subpoena,\ncourt order or other legal process, or as otherwise required by law, Employee agrees to notify Company as soon as notice of such process is\nreceived and before disclosure and/or appearance takes place. Employee will use reasonable and prudent care to safeguard and prevent the\nunauthorized use or disclosure of Confidential Information. Confidential Information shall not include any information that: (a) is or becomes a\npart of the public domain through no act or omission of Employee or is otherwise available to the public other than by breach of this Agreement;\n(b) was in Employee’s lawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee’s employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from the\nCompany to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by Employee outside\nof Employee’s employment with the Company and without the use of any Confidential Information. Employee further acknowledges that\nEmployee, in the course of employment, has had and will have access to such Confidential Information.\n(b)\nEmployee agrees that every document, computer disk, electronic file, computerized information, computer software program,\nnotation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business of the Company\ncontaining Confidential Information made or acquired by\n4\nthe Employee during employment by the Company is and shall be the sole and exclusive property of Company. The Employee will deliver the\nsame (and every copy, disk, abstract, summary, or reproduction of the same made by or for the Employee or acquired by the Employee)\nwhenever the Company may so require and in any event prior to or at the termination of employment. Nothing in Section 3 is intended or shall\nbe interpreted to mean that the Company may withhold information, including computerized information, relating to Employee’s personal\ncontacts and personal information that may be stored or contained in Employee’s physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee’s business-related contacts, to the extent such information falls outside the definition of\nConfidential Information set forth in Section 3(a) above.\nSECTION 4.\nNON-SOLICITATION/NON-INTERFERENCE.\nThe parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its employees\nand/or its business during the Restricted Period, while recognizing that after his/her termination, Employee is still permitted to freely compete\nwith the Company, except to the extent Confidential Information is used in such solicitation and subject to certain restrictions set forth below.\nFurther, nothing in this Agreement is intended to grant or limit any rights or claims as to any future employer of Employee. To this end, any\ncourt considering the enforcement of this Agreement for a breach of this Agreement, must accept this statement of intent.\n(a)\nAfter Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to recruit or\nsolicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or otherwise affect the\nemployment of any person who was or is employed by the Company at any time during the last three months of Employee’s employment or\nthereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or engage any such person. The parties\nagree that Employee shall not directly engage in the aforesaid conduct through a third party for the purpose of colluding to avoid the restrictions\nin this Agreement. However, nothing in this Agreement precludes Employee from directing a third party (including but not limited to employees\nof his/her subsequent employer or a search firm) to broadly solicit, recruit, and hire individuals, some of whom may be employees of the\nCompany, provided that Employee does not specifically direct such third party to specifically target the Company’s employees generally or\nspecific individual employees of the Company.\n(b)\nAfter Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with a\ndirect competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to solicit or assist\nin soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or otherwise affect any person or\nentity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with the Company, and/or move that business\nelsewhere. Employee also agrees\n5\nnot to be directly and personally involved in the negotiation or solicitation of any individual book roll over(s) or other book of business transfer\narrangements involving the transfer of business away from Company, even if Confidential Information is not involved. However, nothing in this\nAgreement precludes the Employee from directing a third party (including but not limited to employees of his/her subsequent employer) to\nsolicit, compete for, negotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential\nInformation provided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the Employee from\nfreely competing with the Company including but not limited to competing on an account by account or deal by deal basis to the extent that\nhe/she does not use Confidential Information.\n(c)\nThis Section 4 is inapplicable in the event Employee accepts and signs the Waiver and Release as described in Section 12(e).\nSECTION 5.\nATTORNEYS’ FEES.\nIf a dispute arises concerning the terms and conditions of this Agreement, Employee and Company agree to pay their own respective\nattorneys’ fees and costs.\nSECTION 6.\nEXTENSION OF OBLIGATIONS.\nIf Employee breaches any of the provisions of Section 4 of this Agreement, and if the Company brings legal action for injunctive relief\nduring the Restricted Period and injunctive relief is ordered by a court of competent jurisdiction, then one day of additional time shall be added to\nthe restriction for each day of noncompliance, up to a maximum of twelve (12) months, so that the Company is given the benefit of Employee’s\ncompliance with the restriction for twelve (12) months following employment as agreed. If, however, the Company takes no action within the\nRestricted Period, then the Company shall have no right to bring a legal action under this Agreement against Employee.\nSECTION 7.\nCONSENT TO JURISDICTION.\nJurisdiction and venue for enforcement of this Agreement, and for resolution of any dispute under this Agreement, shall be exclusively\nin the federal or state courts in the state and county where the Employee resides at the time that the Company commences an enforcement\naction. Employee agrees to advise the Company’s General Counsel of his/her residence during the Restricted Period.\n6\nSECTION 8.\nEMPLOYMENT-AT-WILL.\nEmployee specifically recognizes and agrees that nothing in this Agreement shall be deemed to change the existing employment\nrelationship between the Employee and the Company, and that this Agreement is not an employment agreement for continued employment.\nSECTION 9.\nGOVERNING LAW.\nThis Agreement shall be construed interpreted in accordance with the laws of the State of Minnesota.\nSECTION 10.\nWAIVER.\nThe waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach of\nthis Agreement. To the extent that a common law duty exists with respect to the use of Confidential Information that would cause the Company\nirreparable harm, Employee recognizes and acknowledges his/her obligation to abide by that duty both before and after the Restricted Period.\nSECTION 11.\nSEVERABILITY.\nIf any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable in whole or in part, this\nadjudication shall not affect the validity of the remainder of the Agreement, including any other provision, section or subsection. Each provision,\nsection, and subsection of this Agreement is separable from every other provision, section and subsection and constitutes a separate and distinct\ncovenant. Both Employee and the Company agree that if any court rules that a restriction contained in this Agreement is unenforceable as\nwritten, the parties will meet and confer to negotiate the reformation of the provision.\nSECTION 12.\nASSIGNMENT AND EXPIRATION OF AGREEMENT.\n(a)\nThis Agreement is not assignable by Employee or the Company without the written consent of the other party.\n(b)\nIt is the intent of the Company that all members of the Management Committee will sign and be bound by the terms of this\nAgreement. The Company also agrees that all future Management Committee members will be required to sign a non-solicitation non-disclosure\nagreement within thirty (30) days of joining the Management Committee, such agreement to be on the same terms as this Agreement, except for\n7\nconforming changes, technical changes and corrections which are not more favorable to such person than as provided in this Agreement as then\nin effect.\n(c) The Company agrees that it will not amend, alter, modify, or otherwise change the terms of the non-solicitation non-disclosure\nagreement for any present or future Management Committee member, except as referenced in Sections 12(b) or 12(f). If the Company amends,\nalters, modifies or otherwise changes the terms of the non-solicitation nondisclosure agreement for any present or future Management Committee\nmember such that the terms are less restrictive than the terms set forth in this Agreement, the Company will modify the terms of this Agreement\nto reflect the less restrictive terms. The Company agrees to notify Employee in writing within fourteen (14) days of its execution or modification\nof such a non-solicitation non-disclosure agreement with any present or future Management Committee member. Additionally, in the event that\nfuture members of the Management Committee are not required to execute this Agreement, do not sign the Agreement within thirty (30) days of\njoining the Management Committee, or any member of the Management Committee is no longer bound by this Agreement and permitted to\nremain on the Management Committee, then this Agreement shall immediately become void. The Company agrees to advise Employee within\nfourteen (14) days, that the Agreement has become void.\n(d)\nIn the event that Employee is removed from the Management Committee, and/or Employee is Constructively Discharged, then\nthis Agreement shall immediately become void; provided, however, that if the Employee is Constructively Discharged following a Change of\nControl, then Employee shall have the option upon written notice to the Company within 90 days following such Constructive Discharge to\ncause this Agreement to become void and, in the absence of making any such election, this Agreement shall remain in effect.\n(e)\nIn the event that Employee loses employment under the conditions as defined in the Severance Plan or as further defined in\nSection 1(b) and Employee accepts and signs the Waiver and Release, as defined and required by the Severance Plan, then Employee shall\nreceive the enhanced benefits set forth in Section 1(b), and the non-solicitation terms set forth in such Waiver and Release shall supersede the\nterms set forth in Section 4 hereof.\n(f)\nThe Company may, from time to time, deem it necessary to enter into an agreement on a temporary basis that provides greater\nseverance benefits than are being provided in Section 1(b) when hiring a new member of the Management Committee or when asking an existing\nmember to relocate or asking a member to take a position substantially different from the member ’s current position. In the event those greater\nseverance benefits are provided for a period longer than 24 months, the benefits under this Agreement shall be enhanced, on a proportionate basis\n(for example, if such new member’s benefit was increased by 12 months over Employee’s benefit, then Employee’s benefit would be increased\nby 12 months), to incorporate the increased benefits provided to the other employee.\n8\n(g)\nNotwithstanding Sections 12(b) and 12(c), the Company agrees that in the event Employee has an existing agreement in place\nwith Company with more restrictive non-solicitation and/or non-disclosure terms, those more restrictive terms will govern until their expiration,\nif any, at which time this Agreement will wholly take effect. In the event Employee has an existing agreement in place with Company with no or\nless restrictive non-solicitation and/or non-disclosure terms, the more restrictive terms contained in this Agreement will govern.\nSECTION 13. RELIEF\n(a)\nEmployee expressly acknowledges that the terms of Sections 3 and 4 are material to this Agreement. Employee further\nacknowledges and agrees that the Confidential Information acquired during Employee’s employment with the Company is valuable and unique,\nand that any breach by Employee of the provisions of Sections 3 and 4 will cause the Company irreparable injury and damage that cannot\nreasonably or adequately be compensated by monetary damages. Employee, therefore, expressly agrees that the Company shall be entitled to\ninjunctive relief in a court of competent jurisdiction in accordance with the laws of the applicable jurisdiction.\n(b)\nThe parties agree that injunctive relief is the exclusive remedy that is available to the Company against Employee in the event\nthe Employee breaches this Agreement.\n(c)\nIf the Company takes no legal action within the Restricted Period, then it shall not be entitled to bring any legal action under\nthis Agreement against Employee or for any extension of the Restricted Period.\nSECTION 14.\nENTIRE AGREEMENT.\nThis Agreement constitutes the entire Agreement and understanding between the Company and the Employee concerning the subject\nmatters hereof and shall supersede and replace any previously executed non-solicitation non-disclosure agreement between the Company and\nEmployee. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing and signed by the\nEmployee and a duly authorized representative of the Company.\n9\nIN WITNESS WHEREOF, the Company and Employee have duly executed this Agreement under seal as of the day and year first\nabove written.\nTHE TRAVELERS COMPANIES, INC.\nBy:\nName: John P. Clifford Jr.\nTitle: Executive Vice President and Chief Human Resources Officer\nXXXXXXX\n10\nEXHIBIT A\nCovenants Not to Solicit/Hire/Interfere. Employee acknowledges and agrees that, by virtue of opportunities derived from Employee’s access\nto Confidential Information and employment with the Company, Employee is capable of significantly and adversely impacting the existing\nrelationships of the Company Entities with their clients, customers, policyholders, vendors, consultants, employees, and/or agents. Employee\nacknowledges that the Company Entities have a legitimate interest in protecting these relationships against solicitation and/or interference by\nEmployee during Employee’s employment and for a reasonable period of time following the Separation Date. Accordingly, the parties agree that\nthe covenants described in this Subsection III(E) and its subparts shall apply (i) during Employee’s employment with the Company and (ii) for a\nduration of twelve (12) months following the Separation Date (together, “the Restricted Period”). Employee acknowledges and agrees that the\ncovenants described in this Subsection III(E) and its subparts are expressly intended to protect and preserve the legitimate business interests and\ngoodwill of the Company Entities. Employee acknowledges that the Consideration provides independent and fair consideration for these\ncovenants.\n1.\nNon-Solicitation/Non-Hire of Employees. Employee acknowledges that the Company Entities sustain their operations and\nthe goodwill of their clients, customers, policyholders, vendors, consultants, producers, agents and brokers (“Customers”) through their\nemployees. The Company Entities have made significant investment in their employees and their ability to establish and maintain relationships\nwith each other and with the Company Entities’ Customers in order to further their operations and cultivate goodwill. Employee acknowledges\nthat the loss of the Company Entities’ employees could adversely affect its operations and jeopardize the goodwill that has been established\nthrough these employees, and that the Company Entities therefore have a legitimate interest in preventing the solicitation of their employees.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, seek to recruit or solicit, attempt to influence or assist, participate in or promote the solicitation of, or otherwise attempt to adversely\naffect the employment of any person who was or is employed by any Company Entity on the Separation Date or was employed by any Company\nEntity within twelve (12) months prior to the Separation Date or thereafter. Without limiting the foregoing restriction, Employee shall not, on\nbehalf of Employee or any other person, hire, employ or engage any such person and shall not engage in the aforesaid conduct through a third\nparty for the purpose of colluding to avoid the restrictions in this Section. Without limiting the generality of the restrictions under this Section,\nby way of example, the restrictions under this Section shall prohibit Employee from (i) interviewing a Company Entity employee,\n(ii) communicating in any manner with a Company Entity employee in connection with a current or future employment opportunity outside of\nthe Company, (iii) identifying Company Entity employees to potentially be solicited or hired, (iv) providing information or feedback regarding\nCompany Entity employees seeking employment with the Employees subsequent employer and/or (v) otherwise assisting or participating in the\nsolicitation or hiring of a Company Entity employee. Employee further agrees that, during such time, if a person who is employed by any\nCompany Entity contacts Employee about prospective employment, Employee will inform such person that Employee cannot discuss the matter,\nunless and until consent of the Company has been obtained. Employee shall not provide any other person the name of, or information regarding,\nany person employed by any Company Entity who contacts Employee about prospective employment. For purposes of this Subsection III(E)(1),\nrequests for consent must be delivered via overnight mail (signature required) to John P. Clifford, Jr., Travelers, Executive Vice President of\nHuman Resources, 385 Washington Street, Mail Code SB02W, St. Paul, MN 55102-1396 (or his successor), with a copy via overnight mail\n(signature required) to Kenneth F. Spence, III, Travelers, Executive Vice President and General Counsel, 385 Washington Street, Mail Code\nLC12L, St. Paul, MN 55102-1396 (or his successor).\n2.\nNon-Solicitation of and Non-Interference with Existing Commercial Relationships. Employee acknowledges that by\nvirtue of his or her employment with the Company, Employee has developed relationships with and/or had access to Confidential Information\nabout the Company Entities’ Customers and is, therefore, capable of significantly and adversely impacting existing relationships that the\nCompany Entities have with them. Employee further acknowledges that the Company Entities have invested in their and Employee’s\nrelationship with the Company Entities’ Customers and the goodwill that has been developed with them, and therefore have a legitimate interest\nin protecting these relationships against solicitation and/or interference by Employee for a reasonable period of time after the Separation Date.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, solicit any person or entity, who or that, as of the Separation Date, was or is a Customer of any Company Entity, to discontinue\nbusiness with any Company Entity and/or move that business elsewhere, or otherwise change an existing customer relationship with any\nCompany Entity. Employee further agrees that, during such time, if such a Customer contacts Employee about discontinuing business with any\nCompany Entity, and/or moving that business elsewhere, or otherwise changing an existing commercial relationship with any Company Entity,\nEmployee will inform such Customer that Employee cannot discuss the matter without notifying the Company. Prior to any discussion of the\nmatter, Employee is obligated to notify the Company of the name of the person who made the contact, the Customer with whom the person is\naffiliated, and the nature and date of the contact. After notifying the Company of the contact, Employee must receive written consent from the\nCompany before discussing the matter with such Customer. For purposes of this Subsection III(E)(2), requests for consent must be delivered via\novernight mail (signature required) to the current Executive Vice President or Senior Vice President of the business unit for which Employee\nworked as of the Separation Date, with a copy via overnight mail (signature required) to Kenneth F. Spence, III, Travelers, Executive Vice\nPresident and General Counsel, 385 Washington Street, Mail Code LC12L, St. Paul, MN 55102-1396 (or his successor).	EX-10.35 2 a2230860zex-10_35.htm EX-10.35\nExhibit 10.35\nAMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered\ninto this th day of , 20 , by and between The Travelers Companies, Inc., a Minnesota corporation, including its present and future\naffiliated entities (collectively, the “Company”), and XXXX (the “Employee”).\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of underwriting and selling insurance and insurance-related products throughout\nthe United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties agree\nas follows:\nSECTION 1. CONSIDERATION.\n@) As consideration for the execution of this Agreement, the Employee acknowledges receipt of the amount of Five Thousand\nDollars ($5,000.00) (“the Consideration”), to the extent not previously paid in connection with the execution of a prior version of this\nAgreement, which constitutes good, valuable and independent consideration for all of Employee’s covenants and obligations in this Agreement\nand is above and beyond any compensation Employee is entitled to receive from the Company.\n(b) As further consideration for the execution of this Agreement, the Employee shall be eligible to participate in and receive the\nbenefits of the executive severance plan as set forth in Schedule B of The Travelers Severance Plan (as amended and restated effective January 1,\n2015) (the “Severance Plan”), in the event Employee is involuntarily terminated because of a reduction in force, involuntarily terminated for\nreasons other than Cause (as defined in Section 2) or asked to take a substantial demotion, and otherwise pursuant to the terms and conditions of\nthe Severance Plan and regardless of any amendment to or termination of the Severance Plan, except that for the purpose of Schedule B, the\nnumber of months of severance benefit shall in no event be less than 21 months and the “total monthly cash compensation” shall in no event be\nless than one twelfth (1/12) of the Employee’s base salary in effect at the time of his/her termination of employment (“final base salary”) plus the\ngreater of (i) one twelfth (1/12) of the average of his/her two most recent cash payments under the annual incentive compensation plan of the\nCompany, or (ii) one twelfth (1/12) of 125% of the final base salary for any Employee who is serving the Employer in a position of Executive\nVice President or equivalent (as determined by Company and the position of Vice Chairman is\n \ndeemed to be equivalent to Executive Vice President); and 110% of the final base salary of any Employee who is serving the Employer in a\nposition of Senior Vice President or equivalent (as determined by Company). Further, in order to be eligible for benefits under the Severance\nPlan, Employee will be required to, among other things, execute a Waiver and Release, as defined in the Severance Plan, in a form satisfactory to\nCompany. (The current standard non-solicitation clauses included in the Waiver and Release are attached and incorporated herein for your\nreference as Exhibit A.) Nothing in this Agreement is intended or may be interpreted to amend or revise the Severance Plan, except as set forth\nand applicable herein. Schedule B of the Severance Plan, as in effect as of the date hereof (“Schedule B”), is incorporated herein by reference.\nSuch Schedule B, together with the above described enhanced benefit set forth a schedule of minimum severance for Employee and other\nmembers of the Management Committee. To the extent the Company revises the existing Severance Plan to increase the benefits, Employee will\nbe entitled to the greater of (i) the new increased benefits under the Severance Plan or (ii) the Severance Plan benefits in existence at the time this\nAgreement was executed, in each case, with any additional enhancements as applicable pursuant to this Section 1(b). To the extent Company\nrevises the Severance Plan to decrease benefits or adopts a Severance Plan which allows for a benefit to be paid that is less than that set forth in\nSchedule B, Employee shall be entitled to the benefits set forth in Schedule B, as modified by this Section 1(b).\nSECTION 2. DEFINITIONS\nFor purposes of this Agreement, the following terms are defined as follows:\n@) “Cause” shall mean Employee’s conviction of any felony, Employee’s willful misconduct in connection with the performance\nof Employee’s duties with Company, or Employee’s taking illegal action in Employee’s business or personal life that harms the reputation or\ndamages the good name of Company.\n(b) “Change of Control” shall mean any of the following (i) members of the Board of Directors on the date hereof (“Incumbent\nBoard”) cease for any reason to constitute a majority thereof, provided that persons subsequently becoming directors with the approval of\ndirectors constituting at least two-thirds (2/3) of the Incumbent Board (either by a specific vote or by approval of the proxy statement of the\nCompany in which such person is named as a nominee for director, without written objection to such nomination) will be considered as members\nof the Incumbent Board provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual\nor threatened election contest (as described in Rule 14a-11 under the Securities Exchange Act of 1934 (the “Act”)) (“Election Contest”) or any\nother actual or threatened solicitation of proxies or consents by or on behalf of any “person” (as such term is defined in Section 3(a)(9) of the\nAct) other than the Board (“Proxy Contest”), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy\nContest, shall be deemed to be a member of the Incumbent Board, or (ii) any person as defined in the Act, other than the Company, a Company\nsubsidiary, any employee benefit plan (or related trust) sponsored or maintained by the Company or any\n2\n \nCompany subsidiary, any employee or any group of persons including an employee (or any entity controlled by an employee or any group of\npersons including an employee) or an underwriter temporarily holding securities pursuant to an offering of such securities, is or becomes the\nbeneficial owner, directly or indirectly, of 30% or more of the company’s voting securities, or (iii) the consummation of a merger, consolidation,\nstatutory share exchange or similar form of corporate transaction involving the Company, or any of its subsidiaries that requires the approval of\nthe Company’s stockholders, whether for such transaction or the issuance of securities in the transaction, or the sale or other disposition of all or\nsubstantially all of the Company’s assets to an unaffiliated entity, unless immediately after such corporate transaction or sale, (A) more than 60%\nof the total voting securities of the corporation resulting from such corporate transaction or sale (or if applicable, the ultimate parent corporation\nthat directly or indirectly has beneficial ownership of 100% of the voting securities eligible to elect directors of the surviving company) is\nrepresented by voting securities of the Company that were outstanding immediately prior to such corporate transaction or sale (or by shares into\nwhich such Company voting securities were converted pursuant to such corporate transaction or sale) and such voting power among the holders\nthereof is in substantially the same proportion as the voting power of such Company voting securities among the holders thereof immediately\nprior to the corporate transaction or sale, (B) no person (other than any employee benefit plan (or related trust) sponsored or maintained by the\nsurviving company or the parent company), is or becomes the beneficial owner, directly or indirectly, of 30% or more of the total voting power of\nthe outstanding voting securities eligible to elect directors of the parent company (or, if there is no parent company, the surviving company) and\n(C) at least a majority of the members of the board of directors of the parent company (or, if there is no parent company, the surviving company)\nfollowing the consummation of the corporate transaction or sale were members of the Incumbent Board at the time of the Board’s approval of the\nexecution of the initial agreement providing for such corporate transaction or sale (any corporate transaction or sale which satisfies all of the\ncriteria specified in (A) (B) and (C) above shall be deemed to be a “Non-Qualifying Transaction”); or (iv) the Company’s shareholders approve a\nplan of complete liquidation or dissolution of the Company. Notwithstanding the foregoing, a Change of Control shall not be deemed to occur\nsolely because any person acquires beneficial ownership of more than 30% of the Company voting securities as a result of the acquisition of\nCompany voting securities by the Company which reduces the number of Company voting securities outstanding; provided that if after such\nacquisition by the Company such person becomes the beneficial owner of additional Company voting securities that increases the percentage of\noutstanding Company voting securities beneficially owned by such person, a Change of Control of the Company shall then occur.\n(0 “Constructive Discharge” shall mean conduct by the Company that would lead a reasonable person to leave employment due to\nintolerable conditions created by the Company, reduction of the Employee’s base salary (except in the event of a generally proportionate\nreduction of all of the Management Committee members’ salaries), the cessation of the Employee being a member of the Management\nCommittee (provided, however, that in the event Employee voluntarily steps down from the Management\n3\n \nCommittee, this Agreement shall become void three months from that date), changing Employee’s reporting relationship that results in Employee\nreporting to someone who is not a member of the Management Committee, the Chairman or the Chief Executive Officer, changing Employee’s\nreporting relationship or reducing his/her responsibilities such that it would cause a reasonable person to resign and causes Employee to resign,\nor requiring Employee to accept a position that would reasonably require relocation.\n(d) “Restricted Period” shall mean the twelve (12) month period following the Employee’s termination of employment.\n(e) “Management Committee” shall mean the most senior policy setting group of executives within the Company, excluding the\nChairman and the Chief Executive Officer.\nSECTION 3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.\n@) Employee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents (“Confidential Information”).\nEmployee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any Confidential Information\nfor his/her own personal benefit or for the benefit of any person or entity, except that Employee may disclose Confidential Information pursuant\nto a properly issued subpoena, court order, other legal process, or official inquiry of a federal, state or local taxing authority, or other\ngovernmental agency with a legitimate legal right to know the Confidential Information. If disclosure is compelled of Employee by subpoena,\ncourt order or other legal process, or as otherwise required by law, Employee agrees to notify Company as soon as notice of such process is\nreceived and before disclosure and/or appearance takes place. Employee will use reasonable and prudent care to safeguard and prevent the\nunauthorized use or disclosure of Confidential Information. Confidential Information shall not include any information that: (a) is or becomes a\npart of the public domain through no act or omission of Employee or is otherwise available to the public other than by breach of this Agreement;\n(b) was in Employee’s lawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee’s employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from the\nCompany to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by Employee outside\nof Employee’s employment with the Company and without the use of any Confidential Information. Employee further acknowledges that\nEmployee, in the course of employment, has had and will have access to such Confidential Information.\n(b) Employee agrees that every document, computer disk, electronic file, computerized information, computer software program,\nnotation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business of the Company\ncontaining Confidential Information made or acquired by\n \nthe Employee during employment by the Company is and shall be the sole and exclusive property of Company. The Employee will deliver the\nsame (and every copy, disk, abstract, summary, or reproduction of the same made by or for the Employee or acquired by the Employee)\nwhenever the Company may so require and in any event prior to or at the termination of employment. Nothing in Section 3 is intended or shall\nbe interpreted to mean that the Company may withhold information, including computerized information, relating to Employee’s personal\ncontacts and personal information that may be stored or contained in Employee’s physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee’s business-related contacts, to the extent such information falls outside the definition of\nConfidential Information set forth in Section 3(a) above.\nSECTION 4. NON-SOLICITATION/NON-INTERFERENCE.\nThe parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its employees\nand/or its business during the Restricted Period, while recognizing that after his/her termination, Employee is still permitted to freely compete\nwith the Company, except to the extent Confidential Information is used in such solicitation and subject to certain restrictions set forth below.\nFurther, nothing in this Agreement is intended to grant or limit any rights or claims as to any future employer of Employee. To this end, any\ncourt considering the enforcement of this Agreement for a breach of this Agreement, must accept this statement of intent.\n@) After Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to recruit or\nsolicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or otherwise affect the\nemployment of any person who was or is employed by the Company at any time during the last three months of Employee’s employment or\nthereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or engage any such person. The parties\nagree that Employee shall not directly engage in the aforesaid conduct through a third party for the purpose of colluding to avoid the restrictions\nin this Agreement. However, nothing in this Agreement precludes Employee from directing a third party (including but not limited to employees\nof his/her subsequent employer or a search firm) to broadly solicit, recruit, and hire individuals, some of whom may be employees of the\nCompany, provided that Employee does not specifically direct such third party to specifically target the Company’s employees generally or\nspecific individual employees of the Company.\n(b) After Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with a\ndirect competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to solicit or assist\nin soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or otherwise affect any person or\nentity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with the Company, and/or move that business\nelsewhere. Employee also agrees\n \nnot to be directly and personally involved in the negotiation or solicitation of any individual book roll over(s) or other book of business transfer\narrangements involving the transfer of business away from Company, even if Confidential Information is not involved. However, nothing in this\nAgreement precludes the Employee from directing a third party (including but not limited to employees of his/her subsequent employer) to\nsolicit, compete for, negotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential\nInformation provided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the Employee from\nfreely competing with the Company including but not limited to competing on an account by account or deal by deal basis to the extent that\nhe/she does not use Confidential Information.\n(0 This Section 4 is inapplicable in the event Employee accepts and signs the Waiver and Release as described in Section 12(e).\nSECTION 5. ATTORNEYS’ FEES.\nIf a dispute arises concerning the terms and conditions of this Agreement, Employee and Company agree to pay their own respective\nattorneys’ fees and costs.\nSECTION 6. EXTENSION OF OBLIGATIONS.\nIf Employee breaches any of the provisions of Section 4 of this Agreement, and if the Company brings legal action for injunctive relief\nduring the Restricted Period and injunctive relief is ordered by a court of competent jurisdiction, then one day of additional time shall be added to\nthe restriction for each day of noncompliance, up to a maximum of twelve (12) months, so that the Company is given the benefit of Employee’s\ncompliance with the restriction for twelve (12) months following employment as agreed. If, however, the Company takes no action within the\nRestricted Period, then the Company shall have no right to bring a legal action under this Agreement against Employee.\nSECTION 7. CONSENT TO JURISDICTION.\nJurisdiction and venue for enforcement of this Agreement, and for resolution of any dispute under this Agreement, shall be exclusively\nin the federal or state courts in the state and county where the Employee resides at the time that the Company commences an enforcement\naction. Employee agrees to advise the Company’s General Counsel of his/her residence during the Restricted Period.\n6\n \nSECTION 8. EMPLOYMENT-AT-WII L.\nEmployee specifically recognizes and agrees that nothing in this Agreement shall be deemed to change the existing employment\nrelationship between the Employee and the Company, and that this Agreement is not an employment agreement for continued employment.\nSECTION 9. GOVERNING LAW.\nThis Agreement shall be construed interpreted in accordance with the laws of the State of Minnesota.\nSECTION 10. WAIVER.\nThe waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach of\nthis Agreement. To the extent that a common law duty exists with respect to the use of Confidential Information that would cause the Company\nirreparable harm, Employee recognizes and acknowledges his/her obligation to abide by that duty both before and after the Restricted Period.\nSECTION 11. SEVERABILITY.\nIf any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable in whole or in part, this\nadjudication shall not affect the validity of the remainder of the Agreement, including any other provision, section or subsection. Each provision,\nsection, and subsection of this Agreement is separable from every other provision, section and subsection and constitutes a separate and distinct\ncovenant. Both Employee and the Company agree that if any court rules that a restriction contained in this Agreement is unenforceable as\nwritten, the parties will meet and confer to negotiate the reformation of the provision.\nSECTION 12. ASSIGNMENT AND EXPIRATION OF AGREEMENT.\n@) This Agreement is not assignable by Employee or the Company without the written consent of the other party.\n(b) It is the intent of the Company that all members of the Management Committee will sign and be bound by the terms of this\nAgreement. The Company also agrees that all future Management Committee members will be required to sign a non-solicitation non-disclosure\nagreement within thirty (30) days of joining the Management Committee, such agreement to be on the same terms as this Agreement, except for\n7\n \nconforming changes, technical changes and corrections which are not more favorable to such person than as provided in this Agreement as then\nin effect.\n(c)  The Company agrees that it will not amend, alter, modify, or otherwise change the terms of the non-solicitation non-disclosure\nagreement for any present or future Management Committee member, except as referenced in Sections 12(b) or 12(f). If the Company amends,\nalters, modifies or otherwise changes the terms of the non-solicitation nondisclosure agreement for any present or future Management Committee\nmember such that the terms are less restrictive than the terms set forth in this Agreement, the Company will modify the terms of this Agreement\nto reflect the less restrictive terms. The Company agrees to notify Employee in writing within fourteen (14) days of its execution or modification\nof such a non-solicitation non-disclosure agreement with any present or future Management Committee member. Additionally, in the event that\nfuture members of the Management Committee are not required to execute this Agreement, do not sign the Agreement within thirty (30) days of\njoining the Management Committee, or any member of the Management Committee is no longer bound by this Agreement and permitted to\nremain on the Management Committee, then this Agreement shall immediately become void. The Company agrees to advise Employee within\nfourteen (14) days, that the Agreement has become void.\n(d) In the event that Employee is removed from the Management Committee, and/or Employee is Constructively Discharged, then\nthis Agreement shall immediately become void; provided, however, that if the Employee is Constructively Discharged following a Change of\nControl, then Employee shall have the option upon written notice to the Company within 90 days following such Constructive Discharge to\ncause this Agreement to become void and, in the absence of making any such election, this Agreement shall remain in effect.\n(e) In the event that Employee loses employment under the conditions as defined in the Severance Plan or as further defined in\nSection 1(b) and Employee accepts and signs the Waiver and Release, as defined and required by the Severance Plan, then Employee shall\nreceive the enhanced benefits set forth in Section 1(b), and the non-solicitation terms set forth in such Waiver and Release shall supersede the\nterms set forth in Section 4 hereof.\n(3] The Company may, from time to time, deem it necessary to enter into an agreement on a temporary basis that provides greater\nseverance benefits than are being provided in Section 1(b) when hiring a new member of the Management Committee or when asking an existing\nmember to relocate or asking a member to take a position substantially different from the member’s current position. In the event those greater\nseverance benefits are provided for a period longer than 24 months, the benefits under this Agreement shall be enhanced, on a proportionate basis\n(for example, if such new member’s benefit was increased by 12 months over Employee’s benefit, then Employee’s benefit would be increased\nby 12 months), to incorporate the increased benefits provided to the other employee.\n8\n \n(8 Notwithstanding Sections 12(b) and 12(c), the Company agrees that in the event Employee has an existing agreement in place\nwith Company with more restrictive non-solicitation and/or non-disclosure terms, those more restrictive terms will govern until their expiration,\nif any, at which time this Agreement will wholly take effect. In the event Employee has an existing agreement in place with Company with no or\nless restrictive non-solicitation and/or non-disclosure terms, the more restrictive terms contained in this Agreement will govern.\nSECTION 13. RELIEF\n@) Employee expressly acknowledges that the terms of Sections 3 and 4 are material to this Agreement. Employee further\nacknowledges and agrees that the Confidential Information acquired during Employee’s employment with the Company is valuable and unique,\nand that any breach by Employee of the provisions of Sections 3 and 4 will cause the Company irreparable injury and damage that cannot\nreasonably or adequately be compensated by monetary damages. Employee, therefore, expressly agrees that the Company shall be entitled to\ninjunctive relief in a court of competent jurisdiction in accordance with the laws of the applicable jurisdiction.\n(b) The parties agree that injunctive relief is the exclusive remedy that is available to the Company against Employee in the event\nthe Employee breaches this Agreement.\n(0 If the Company takes no legal action within the Restricted Period, then it shall not be entitled to bring any legal action under\nthis Agreement against Employee or for any extension of the Restricted Period.\nSECTION 14. ENTIRE AGREEMENT.\nThis Agreement constitutes the entire Agreement and understanding between the Company and the Employee concerning the subject\nmatters hereof and shall supersede and replace any previously executed non-solicitation non-disclosure agreement between the Company and\nEmployee. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing and signed by the\nEmployee and a duly authorized representative of the Company.\n \nIN WITNESS WHEREOQF, the Company and Employee have duly executed this Agreement under seal as of the day and year first\nabove written.\nTHE TRAVELERS COMPANIES, INC.\nBy:\nName: John P. Clifford Jr.\nTitle:  Executive Vice President and Chief Human Resources Officer\nXXXXXXX\n10\n \nEXHIBIT A\nCovenants Not to Solicit/Hire/Interfere. Employee acknowledges and agrees that, by virtue of opportunities derived from Employee’s access\nto Confidential Information and employment with the Company, Employee is capable of significantly and adversely impacting the existing\nrelationships of the Company Entities with their clients, customers, policyholders, vendors, consultants, employees, and/or agents. Employee\nacknowledges that the Company Entities have a legitimate interest in protecting these relationships against solicitation and/or interference by\nEmployee during Employee’s employment and for a reasonable period of time following the Separation Date. Accordingly, the parties agree that\nthe covenants described in this Subsection III(E) and its subparts shall apply (i) during Employee’s employment with the Company and (ii) for a\nduration of twelve (12) months following the Separation Date (together, “the Restricted Period”). Employee acknowledges and agrees that the\ncovenants described in this Subsection III(E) and its subparts are expressly intended to protect and preserve the legitimate business interests and\ngoodwill of the Company Entities. Employee acknowledges that the Consideration provides independent and fair consideration for these\ncovenants.\n1. Non-Solicitation/Non-Hire of Employees. Employee acknowledges that the Company Entities sustain their operations and\nthe goodwill of their clients, customers, policyholders, vendors, consultants, producers, agents and brokers (“Customers™) through their\nemployees. The Company Entities have made significant investment in their employees and their ability to establish and maintain relationships\nwith each other and with the Company Entities” Customers in order to further their operations and cultivate goodwill. Employee acknowledges\nthat the loss of the Company Entities’ employees could adversely affect its operations and jeopardize the goodwill that has been established\nthrough these employees, and that the Company Entities therefore have a legitimate interest in preventing the solicitation of their employees.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, seek to recruit or solicit, attempt to influence or assist, participate in or promote the solicitation of, or otherwise attempt to adversely\naffect the employment of any person who was or is employed by any Company Entity on the Separation Date or was employed by any Company\nEntity within twelve (12) months prior to the Separation Date or thereafter. Without limiting the foregoing restriction, Employee shall not, on\nbehalf of Employee or any other person, hire, employ or engage any such person and shall not engage in the aforesaid conduct through a third\nparty for the purpose of colluding to avoid the restrictions in this Section. Without limiting the generality of the restrictions under this Section,\nby way of example, the restrictions under this Section shall prohibit Employee from (i) interviewing a Company Entity employee,\n(ii) communicating in any manner with a Company Entity employee in connection with a current or future employment opportunity outside of\nthe Company, (iii) identifying Company Entity employees to potentially be solicited or hired, (iv) providing information or feedback regarding\nCompany Entity employees seeking employment with the Employees subsequent employer and/or (v) otherwise assisting or participating in the\n \nsolicitation or hiring of a Company Entity employee. Employee further agrees that, during such time, if a person who is employed by any\nCompany Entity contacts Employee about prospective employment, Employee will inform such person that Employee cannot discuss the matter,\nunless and until consent of the Company has been obtained. Employee shall not provide any other person the name of, or information regarding,\nany person employed by any Company Entity who contacts Employee about prospective employment. For purposes of this Subsection III(E)(1),\nrequests for consent must be delivered via overnight mail (signature required) to John P. Clifford, Jr., Travelers, Executive Vice President of\nHuman Resources, 385 Washington Street, Mail Code SB02W, St. Paul, MN 55102-1396 (or his successor), with a copy via overnight mail\n(signature required) to Kenneth F. Spence, III, Travelers, Executive Vice President and General Counsel, 385 Washington Street, Mail Code\nLC12L, St. Paul, MN 55102-1396 (or his successor).\n2. Non-Solicitation of and Non-Interference with Existing Commercial Relationships. Employee acknowledges that by\nvirtue of his or her employment with the Company, Employee has developed relationships with and/or had access to Confidential Information\nabout the Company Entities’ Customers and is, therefore, capable of significantly and adversely impacting existing relationships that the\nCompany Entities have with them. Employee further acknowledges that the Company Entities have invested in their and Employee’s\nrelationship with the Company Entities” Customers and the goodwill that has been developed with them, and therefore have a legitimate interest\nin protecting these relationships against solicitation and/or interference by Employee for a reasonable period of time after the Separation Date.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, solicit any person or entity, who or that, as of the Separation Date, was or is a Customer of any Company Entity, to discontinue\nbusiness with any Company Entity and/or move that business elsewhere, or otherwise change an existing customer relationship with any\nCompany Entity. Employee further agrees that, during such time, if such a Customer contacts Employee about discontinuing business with any\nCompany Entity, and/or moving that business elsewhere, or otherwise changing an existing commercial relationship with any Company Entity,\nEmployee will inform such Customer that Employee cannot discuss the matter without notifying the Company. Prior to any discussion of the\nmatter, Employee is obligated to notify the Company of the name of the person who made the contact, the Customer with whom the person is\naffiliated, and the nature and date of the contact. After notifying the Company of the contact, Employee must receive written consent from the\nCompany before discussing the matter with such Customer. For purposes of this Subsection III(E)(2), requests for consent must be delivered via\novernight mail (signature required) to the current Executive Vice President or Senior Vice President of the business unit for which Employee\nworked as of the Separation Date, with a copy via overnight mail (signature required) to Kenneth F. Spence, III, Travelers, Executive Vice\nPresident and General Counsel, 385 Washington Street, Mail Code LC12L, St. Paul, MN 55102-1396 (or his successor).\n	EX-10.35 2 a2230860zex-10_35.htn EX-10.35\nExhibit 10.35\nAMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT ("Agreement") is made and entered\ninto this\nth day of\n20 by and between The Travelers Companies, Inc., a Minnesota corporation, including its present and future\naffiliated entities (collectively, the "Company"), and XXXX (the "Employee").\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of underwriting and selling insurance and insurance-related products throughout\nthe United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties agree\nas follows:\nSECTION 1.\nCONSIDERATION.\n(a)\nAs consideration for the execution of this Agreement, the Employee acknowledges receipt of the amount of Five Thousand\nDollars ($5,000.00) ("the Consideration"), to the extent not previously paid in connection with the execution of a prior version of this\nAgreement, which constitutes good, valuable and independent consideration for all of Employee's covenants and obligations in this Agreement\nand is above and beyond any compensation Employee is entitled to receive from the Company.\n(b)\nAs further consideration for the execution of this Agreement, the Employee shall be eligible to participate in and receive the\nbenefits of the executive severance plan as set forth in Schedule B of The Travelers Severance Plan (as amended and restated effective January 1,\n2015)\n(the\n"Severance\nPlan"),\nin\nthe\nevent\nEmployee\nis\ninvoluntarily\nterminated\nbecause\nof\na\nreduction\nin\nforce,\ninvoluntarily\nterminated\nfor\nreasons other than Cause (as defined in Section 2) or asked to take a substantial demotion, and otherwise pursuant to the terms and conditions of\nthe Severance Plan and regardless of any amendment to or termination of the Severance Plan, except that for the purpose of Schedule B, the\nnumber of months of severance benefit shall in no event be less than 21 months and the "total monthly cash compensation" shall in no event\nbe\nless than one twelfth (1/12) of the Employee's base salary in effect at the time of his/her termination of employment ("final base salary") plus the\ngreater of (i) one twelfth (1/12) of the average of his/her two most recent cash payments under the annual incentive compensation plan of the\nCompany, or (ii) one twelfth (1/12) of 125% of the final base salary for any Employee who is serving the Employer in a position of Executive\nVice President or equivalent (as determined by Company and the position of Vice Chairman is\ndeemed to be equivalent to Executive Vice President); and 110% of the final base salary of any Employee who is serving the Employer in a\nposition of Senior Vice President or equivalent (as determined by Company). Further, in order to be eligible for benefits under the Severance\nPlan, Employee will be required to, among other things, execute a Waiver and Release, as defined in the Severance Plan, in a form satisfactory\nto\nCompany. (The current standard non-solicitation clauses included in the Waiver and Release are attached and incorporated herein for your\nreference as Exhibit A.) Nothing in this Agreement is intended or may be interpreted to amend or revise the Severance Plan, except as set forth\nand\napplicable\nherein.\nSchedule\nB\nof\nthe\nSeverance\nPlan,\nas\nin\neffect\nas\nof\nthe\ndate\nhereof\n("Schedule\nB"),\nis\nincorporated\nherein\nby\nreference.\nSuch Schedule B, together with the above described enhanced benefit set forth a schedule of minimum severance for Employee and other\nmembers of the Management Committee. To the extent the Company revises the existing Severance Plan to increase the benefits, Employee will\nbe entitled to the greater of (i) the new increased benefits under the Severance Plan or (ii) the Severance Plan benefits in existence at the time this\nAgreement was executed, in each case, with any additional enhancements as applicable pursuant to this Section 1(b). To the extent Company\nrevises the Severance Plan to decrease benefits or adopts a Severance Plan which allows for a benefit to be paid that is less than that set forth\nin\nSchedule B, Employee shall be entitled to the benefits set forth in Schedule B, as modified by this Section 1(b).\nSECTION 2.\nDEFINITIONS\nFor purposes of this Agreement, the following terms are defined as follows:\n(a)\n"Cause" shall mean Employee's conviction of any felony, Employee's willful misconduct in connection with the performance\nof Employee's duties with Company, or Employee's taking illegal action in Employee's business or personal life that harms the reputation or\ndamages the good name of Company.\n(b)\n"Change of Control" shall mean any of the following (i) members of the Board of Directors on the date hereof ("Incumbent\nBoard") cease for any reason to constitute a majority thereof, provided that persons subsequently becoming directors with the approval of\ndirectors constituting at least two-thirds (2/3) of the Incumbent Board (either by a specific vote or by approval of the proxy statement of the\nCompany in which such person is named as a nominee for director, without written objection to such nomination) will be considered as members\nof\nthe\nIncumbent\nBoard\nprovided,\nhowever,\nthat\nno\nindividual\ninitially\nelected\nor\nnominated\nas\na\ndirector\nof\nthe\nCompany\nas\na\nresult\nof\nan\nactual\nor threatened election contest (as described in Rule 14a-11 under the Securities Exchange Act of 1934 (the "Act")) ("Election Contest") or any\nother actual or threatened solicitation of proxies or consents by or on behalf of any "person" (as such term is defined in Section 3(a)(9) of the\nAct) other than the Board ("Proxy Contest"), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy\nContest, shall be deemed to be a member of the Incumbent Board, or (ii) any person as defined in the Act, other than the Company, a Company\nsubsidiary, any employee benefit plan (or related trust) sponsored or maintained by the Company or any\n2\nCompany subsidiary, any employee or any group of persons including an employee (or any entity controlled by an employee or any group of\npersons\nincluding\nan\nemployee)\nor\nan\nunderwriter\ntemporarily\nholding\nsecurities\npursuant\nto\nan\noffering\nof\nsuch\nsecurities,\nis\nor\nbecomes\nthe\nbeneficial owner, directly or indirectly, of 30% or more of the company's voting securities, or (iii) the consummation of a merger, consolidation,\nstatutory share exchange or similar form of corporate transaction involving the Company, or any of its subsidiaries that requires the approval of\nthe Company's stockholders, whether for such transaction or the issuance of securities in the transaction, or the sale or other disposition of all or\nsubstantially all of the Company's assets to an unaffiliated entity, unless immediately after such corporate transaction or sale, (A) more than\n60%\nof the total voting securities of the corporation resulting from such corporate transaction or sale (or if applicable, the ultimate parent corporation\nthat directly or indirectly has beneficial ownership of 100% of the voting securities eligible to elect directors of the surviving company)\nis\nrepresented by voting securities of the Company that were outstanding immediately prior to such corporate transaction or sale (or by shares into\nwhich such Company voting securities were converted pursuant to such corporate transaction or sale) and such voting power among the holders\nthereof is in substantially the same proportion as the voting power of such Company voting securities among the holders thereof immediately\nprior to the corporate transaction or sale, (B) no person (other than any employee benefit plan (or related trust) sponsored or maintained by the\nsurviving company or the parent company), is or becomes the beneficial owner, directly or indirectly, of 30% or more of the total voting power of\nthe outstanding voting securities eligible to elect directors of the parent company (or, if there is no parent company, the surviving company) and\n(C) at least a majority of the members of the board of directors of the parent company (or, if there is no parent company, the surviving company)\nfollowing the consummation of the corporate transaction or sale were members of the Incumbent Board at the time of the Board's approval of the\nexecution of the initial agreement providing for such corporate transaction or sale (any corporate transaction or sale which satisfies all of the\ncriteria specified in (A) (B) and (C) above shall be deemed to be a "Non-Qualifying Transaction"); or (iv) the Company's shareholders approve a\nplan of complete liquidation or dissolution of the Company. Notwithstanding the foregoing, a Change of Control shall not be deemed to occur\nsolely because any person acquires beneficial ownership of more than 30% of the Company voting securities as a result of the acquisition of\nCompany voting securities by the Company which reduces the number of Company voting securities outstanding; provided that if after such\nacquisition by the Company such person becomes the beneficial owner of additional Company voting securities that increases the percentage of\noutstanding Company voting securities beneficially owned by such person, a Change of Control of the Company shall then occur.\n(c)\n"Constructive Discharge" shall mean conduct by the Company that would lead a reasonable person to leave employment due to\nintolerable conditions created by the Company, reduction of the Employee's base salary (except in the event of a generally proportionate\nreduction of all of the Management Committee members' salaries), the cessation of the Employee being a member of the Management\nCommittee (provided, however, that in the event Employee voluntarily steps down from the Management\n3\nCommittee, this Agreement shall become void three months from that date), changing Employee's reporting relationship that results in Employee\nreporting to someone who is not a member of the Management Committee, the Chairman or the Chief Executive Officer, changing Employee's\nreporting relationship or reducing his/her responsibilities such that it would cause a reasonable person to resign and causes Employee to resign,\nor requiring Employee to accept a position that would reasonably require relocation.\n(d)\n"Restricted Period" shall mean the twelve (12) month period following the Employee's termination of employment.\n(e)\n"Management Committee" shall mean the most senior policy setting group of executives within the Company, excluding the\nChairman and the Chief Executive Officer.\nSECTION 3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION.\n(a)\nEmployee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that\nis\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents ("Confidential Information").\nEmployee\nunderstands\nand\nagrees\nthat\nhe/she\nis\nprohibited\nfrom\nusing,\ndisclosing,\ndivulging\nor\nmisappropriating\nany\nConfidentia\nInformation\nfor his/her own personal benefit or for the benefit of any person or entity, except that Employee may disclose Confidential Information pursuant\nto a properly issued subpoena, court order, other legal process, or official inquiry of a federal, state or local taxing authority, or other\ngovernmental\nagency\nwith\na\nlegitimate\nlegal\nright\nto\nknow\nthe\nConfidential\nInformation.\nIf\ndisclosure\nis\ncompelled\nof\nEmployee\nby\nsubpoena,\ncourt order or other legal process, or as otherwise required by law, Employee agrees to notify Company as soon as notice of such process\nis\nreceived and before disclosure and/or appearance takes place. Employee will use reasonable and prudent care to safeguard and prevent the\nunauthorized use or disclosure of Confidential Information. Confidentia Information shall not include any information that: (a) is or becomes a\npart of the public domain through no act or omission of Employee or is otherwise available to the public other than by breach of this Agreement;\n(b) was in Employee's lawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result\nof\nEmployee's employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from the\nCompany to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by Employee outside\nof Employee's employment with the Company and without the use of any Confidential Information. Employee further acknowledges that\nEmployee, in the course of employment, has had and will have access to such Confidential Information.\n(b)\nEmployee agrees that every document, computer disk, electronic file, computerized information, computer software program,\nnotation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business of the Company\ncontaining Confidential Information made or acquired by\n4\nthe Employee during employment by the Company is and shall be the sole and exclusive property of Company. The Employee will deliver the\nsame (and every copy, disk, abstract, summary, or reproduction of the same made by or for the Employee or acquired by the Employee)\nwhenever the Company may so require and in any event prior to or at the termination of employment. Nothing in Section 3 is intended or shall\nbe interpreted to mean that the Company may withhold information, including computerized information, relating to Employee's personal\ncontacts and personal information that may be stored or contained in Employee's physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee's business-related contacts, to the extent such information falls outside the definition of\nConfidential Information set forth in Section 3(a) above.\nSECTION 4.\nNON-SOLICITATIONNON-INTERFERENCE.\nThe parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its employees\nand/or its business during the Restricted Period, while recognizing that after his/her termination, Employee is still permitted to freely compete\nwith the Company, except to the extent Confidentia Information is used in such solicitation and subject to certain restrictions set forth below.\nFurther, nothing in this Agreement is intended to grant or limit any rights or claims as to any future employer of Employee. To this end, any\ncourt considering the enforcement of this Agreement for a breach of this Agreement, must accept this statement of intent.\n(a)\nAfter Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to\nrecruit\nor\nsolicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or otherwise affect the\nemployment of any person who was or is employed by the Company at any time during the last three months of Employee's employment or\nthereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or engage any such person. The parties\nagree\nthat Employee shall not directly engage in the aforesaid conduct through a third party for the purpose of colluding to avoid the restrictions\nin this Agreement. However, nothing in this Agreement precludes Employee from directing a third party (including but not limited to employees\nof his/her subsequent employer or a search firm) to broadly solicit, recruit, and hire individuals, some of whom may be employees of the\nCompany, provided that Employee does not specifically direct such third party to specifically target the Company's employees generally or\nspecific individual employees of the Company.\n(b)\nAfter Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with a\ndirect competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to solicit or assist\nin soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or otherwise affect any person or\nentity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with the Company, and/or move that business\nelsewhere. Employee also agrees\n5\nnot to be directly and personally involved in the negotiation or solicitation of any individual book roll over(s) or other book of business transfer\narrangements\ninvolving\nthe\ntransfer\nof\nbusiness\naway\nfrom\nCompany,\neven\nif\nConfidential\nInformation\nis\nnot\ninvolved.\nHowever,\nnothing\nin\nthis\nAgreement precludes the Employee from directing a third party (including but not limited to employees of his/her subsequent employer) to\nsolicit, compete for, negotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential\nInformation provided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the Employee from\nfreely competing with the Company including but not limited to competing on an account by account or deal by deal basis to the extent that\nhe/she does not use Confidential Information.\n(c)\nThis Section 4 is inapplicable in the event Employee accepts and signs the Waiver and Release as described in Section 12(e).\nSECTION 5.\nATTORNEYS' FEES.\nIf a dispute arises concerning the terms and conditions of this Agreement, Employee and Company agree to pay their own respective\nattorneys' fees and costs.\nSECTION 6.\nEXTENSION OF OBLIGATIONS.\nIf Employee breaches any of the provisions of Section 4 of this Agreement, and if the Company brings legal action for injunctive relief\nduring the Restricted Period and injunctive relief is ordered by a court of competent jurisdiction, then one day of additional time shall be added to\nthe restriction for each day of noncompliance, up to a maximum of twelve (12) months, so that the Company is given the benefit of Employee's\ncompliance with the restriction for twelve (12) months following employment as agreed. If, however, the Company takes no action within the\nRestricted Period, then the Company shall have no right to bring a legal action under this Agreement against Employee.\nSECTION 7.\nCONSENT TO JURISDICTION.\nJurisdiction and venue for enforcement of this Agreement, and for resolution of any dispute under this Agreement, shall be exclusively\nin the federal or state courts in the state and county where the Employee resides at the time that the Company commences an enforcement\naction. Employee agrees to advise the Company's General Counsel of his/her residence during the Restricted Period.\n6\nSECTION 8.\nEMPLOYMENT-AT-WILL.\nEmployee specifically recognizes and agrees that nothing in this Agreement shall be deemed to change the existing employment\nrelationship between the Employee and the Company, and that this Agreement is not an employment agreement for continued employment.\nSECTION 9.\nGOVERNING LAW.\nThis Agreement shall be construed interpreted in accordance with the laws of the State of Minnesota.\nSECTION 10.\nWAIVER\nThe waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach of\nthis Agreement. To the extent that a common law duty exists with respect to the use of Confidential Information that would cause the Company\nirreparable harm, Employee recognizes and acknowledges his/her obligation to abide by that duty both before and after the Restricted Period.\nSECTION 11.\nSEVERABILITY.\nIf any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable in whole or in part, this\nadjudication shall not affect the validity of the remainder of the Agreement, including any other provision, section or subsection. Each provision,\nsection, and subsection of this Agreement is separable from every other provision, section and subsection and constitutes a separate\nand\ndistinct\ncovenant. Both Employee and the Company agree that if any court rules that a restriction contained in this Agreement is unenforceable as\nwritten, the parties will meet and confer to negotiate the reformation of the provision.\nSECTION 12.\nASSIGNMENT AND EXPIRATION OF AGREEMENT.\n(a)\nThis Agreement is not assignable by Employee or the Company without the written consent of the other party.\n(b)\nIt is the intent of the Company that all members of the Management Committee will sign and be bound by the terms of this\nAgreement.\nThe\nCompany\nalso\nagrees\nthat\nall\nfuture\nManagement\nCommittee\nmembers\nwill\nbe\nrequired\nto\nsign\na\nnon-solicitation\nnon-disclosure\nagreement within thirty (30) days of joining the Management Committee, such agreement to be on the same terms as this Agreement, except for\n7\nconforming changes, technical changes and corrections which are not more favorable to such person than as provided in this Agreement as then\nin effect.\n(c) The Company agrees that it will not amend, alter, modify, or otherwise change the terms of the non-solicitation non-disclosure\nagreement for any present or future Management Committee member, except as referenced in Sections 12(b) or 12(f). If the Company amends,\nalters, modifies or otherwise changes the terms of the non-solicitation nondisclosure agreement for any present or future Management Committee\nmember such that the terms are less restrictive than the terms set forth in this Agreement, the Company will modify the terms of this Agreement\nto\nreflect\nthe less restrictive terms. The Company agrees to notify Employee in writing within fourteen (14) days of its execution or modification\nof such a non-solicitation non-disclosure agreement with any present or future Management Committee member. Additionally, in the event that\nfuture members of the Management Committee are not required to execute this Agreement, do not sign the Agreement within thirty (30) days of\njoining the Management Committee, or any member of the Management Committee is no longer bound by this Agreement and permitted to\nremain on the Management Committee, then this Agreement shall immediately become void. The Company agrees to advise Employee within\nfourteen (14) days, that the Agreement has become void.\n(d)\nIn the event that Employee is removed from the Management Committee, and/or Employee is Constructively Discharged, then\nthis Agreement shall immediately become void; provided, however, that if the Employee is Constructively Discharged following a Change of\nControl, then Employee shall have the option upon written notice to the Company within 90 days following such Constructive Discharge to\ncause this Agreement to become void and, in the absence of making any such election, this Agreement shall remain in effect.\n(e)\nIn the event that Employee loses employment under the conditions as defined in the Severance Plan or as further defined in\nSection 1(b) and Employee accepts and signs the Waiver and Release, as defined and required by the Severance Plan, then Employee shall\nreceive the enhanced benefits set forth in Section 1(b), and the non-solicitation terms set forth in such Waiver and Release shall supersede the\nterms set forth in Section 4 hereof.\n(f) The Company may, from time to time, deem it necessary to enter into an agreement on a temporary basis that provides greater\nseverance benefits than are being provided in Section 1(b) when hiring a new member of the Management Committee or when asking an existing\nmember to relocate or asking a member to take a position substantially different from the member's current position. In the event those greater\nseverance benefits are provided for a period longer than 24 months, the benefits under this Agreement shall be enhanced, on a proportionate basis\n(for example, if such new member's benefit was increased by 12 months over Employee's benefit, then Employee's benefit would be increased\nby 12 months), to incorporate the increased benefits provided to the other employee.\n8\n(g)\nNotwithstanding Sections 12(b) and 12(c), the Company agrees that in the event Employee has an existing agreement in place\nwith Company with more restrictive non-solicitation and/or non-disclosure terms, those more restrictive terms will govern until their expiration,\nif any, at which time this Agreement will wholly take effect. In the event Employee has an existing agreement in place with Company with no or\nless restrictive non-solicitation and/or non-disclosure terms, the more restrictive terms contained in this Agreement will govern.\nSECTION 13. RELIEF\n(a)\nEmployee expressly acknowledges that the terms of Sections 3 and 4 are material to this Agreement. Employee further\nacknowledges and agrees that the Confidential Information acquired during Employee's employment with the Company is valuable and unique,\nand that any breach by Employee of the provisions of Sections 3 and 4 will cause the Company irreparable injury and damage that cannot\nreasonably or adequately be compensated by monetary damages. Employee, therefore, expressly agrees that the Company shall be entitled to\ninjunctive relief in a court of competent jurisdiction in accordance with the laws of the applicable jurisdiction.\n(b)\nThe parties agree that injunctive relief is the exclusive remedy that is available to the Company against Employee in the event\nthe Employee breaches this Agreement.\n(c)\nIf the Company takes no legal action within the Restricted Period, then it shall not be entitled to bring any legal action under\nthis Agreement against Employee or for any extension of the Restricted Period.\nSECTION 14.\nENTIRE AGREEMENT.\nThis Agreement constitutes the entire Agreement and understanding between the Company and the Employee concerning the subject\nmatters hereof and shall supersede and replace any previously executed non-solicitation non-disclosure agreement between the Company and\nEmployee. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing and signed by the\nEmployee and a duly authorized representative of the Company.\n9\nIN WITNESS WHEREOF, the Company and Employee have duly executed this Agreement under seal as of the day and year first\nabove written.\nTHE TRAVELERS COMPANIES, INC.\nBy:\nName: John P. Clifford Jr.\nTitle: Executive Vice President and Chief Human Resources Officer\nXXXXXXX\n10\nEXHIBIT A\nCovenants Not to Solicit/Hire/Interfere. Employee acknowledges and agrees that, by virtue of opportunities derived from Employee's access\nto Confidential Information and employment with the Company, Employee is capable of significantly and adversely impacting the existing\nrelationships of the Company Entities with their clients, customers, policyholders, vendors, consultants, employees, and/or agents. Employee\nacknowledges that the Company Entities have a legitimate interest in protecting these relationships against solicitation and/or interference by\nEmployee during Employee's employment and for a reasonable period of time following the Separation Date. Accordingly, the parties agree that\nthe covenants described in this Subsection III(E) and its subparts shall apply (i) during Employee's employment with the Company and (ii) for a\nduration of twelve (12) months following the Separation Date (together, "the Restricted Period"). Employee acknowledges and agrees that the\ncovenants described in this Subsection III(E) and its subparts are expressly intended to protect and preserve the legitimate business interests and\ngoodwill of the Company Entities. Employee acknowledges that the Consideration provides independent and fair consideration for these\ncovenants.\n1.\nNon-Solicitation/Non-Hire of Employees. Employee acknowledges that the Company Entities sustain their operations and\nthe\ngoodwill\nof\ntheir\nclients,\ncustomers,\npolicyholders,\nvendors,\nconsultants,\nproducers,\nagents\nand\nbrokers\n("Customers")\nthrough\ntheir\nemployees. The Company Entities have made significant investment in their employees and their ability to establish and maintain relationships\nwith each other and with the Company Entities' Customers in order to further their operations and cultivate goodwill. Employee acknowledges\nthat the loss of the Company Entities' employees could adversely affect its operations and jeopardize the goodwill that has been established\nthrough these employees, and that the Company Entities therefore have a legitimate interest in preventing the solicitation of their employees.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, seek to recruit or solicit, attempt to influence or assist, participate in or promote the solicitation of, or otherwise attempt to adversely\naffect the employment of any person who was or is employed by any Company Entity on the Separation Date or was employed by any Company\nEntity within twelve (12) months prior to the Separation Date or thereafter. Without limiting the foregoing restriction, Employee shall not,\non\nbehalf\nof Employee or any other person, hire, employ or engage any such person and shall not engage in the aforesaid conduct through a third\nparty for the purpose of colluding to avoid the restrictions in this Section. Without limiting the generality of the restrictions under this Section,\nby way of example, the restrictions under this Section shall prohibit Employee from (i) interviewing a Company Entity employee,\n(ii) communicating in any manner with a Company Entity employee in connection with a current or future employment opportunity outside of\nthe Company, (iii) identifying Company Entity employees to potentially be solicited or hired, (iv) providing information or feedback regarding\nCompany Entity employees seeking employment with the Employees subsequent employer and/or (v) otherwise assisting or participating\nin\nthe\nsolicitation or hiring of a Company Entity employee. Employee further agrees that, during such time, if a person who is employed by any\nCompany Entity contacts Employee about prospective employment, Employee will inform such person that Employee cannot discuss the matter,\nunless and until consent of the Company has been obtained. Employee shall not provide any other person the name of, or information regarding,\nany person employed by any Company Entity who contacts Employee about prospective employment. For purposes of this Subsection III(E)(1)\nrequests for consent must be delivered via overnight mail (signature required) to John P. Clifford, Jr., Travelers, Executive Vice President of\nHuman Resources, 385 Washington Street, Mail Code SBO2W, St. Paul, MN 55102-1396 (or his successor), with a copy via overnight mail\n(signature required) to Kenneth F. Spence, III, Travelers, Executive Vice President and General Counsel, 385 Washington Street, Mail Code\nLC12L, St. Paul, MN 55102-1396 (or his successor).\n2.\nNon-Solicitation of and Non-Interference with Existing Commercial Relationships. Employee acknowledges that by\nvirtue\nof\nhis\nor\nher\nemployment\nwith\nthe\nCompany,\nEmployee\nhas\ndeveloped\nrelationships\nwith\nand/or\nhad\naccess\nto\nConfidential\nInformation\nabout the Company Entities' Customers and is, therefore, capable of significantly and adversely impacting existing relationships that the\nCompany Entities have with them. Employee further acknowledges that the Company Entities have invested in their and Employee's\nrelationship with the Company Entities' Customers and the goodwill that has been developed with them, and therefore have a legitimate interest\nin protecting these relationships against solicitation and/or interference by Employee for a reasonable period of time after the Separation Date.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, solicit any person or entity, who or that, as of the Separation Date, was or is a Customer of any Company Entity, to discontinue\nbusiness with any Company Entity and/or move that business elsewhere, or otherwise change an existing customer relationship with any\nCompany Entity. Employee further agrees that, during such time, if such a Customer contacts Employee about discontinuing business with any\nCompany Entity, and/or moving that business elsewhere, or otherwise changing an existing commercial relationship with any Company Entity,\nEmployee will inform such Customer that Employee cannot discuss the matter without notifying the Company. Prior to any discussion of the\nmatter, Employee is obligated to notify the Company of the name of the person who made the contact, the Customer with whom the person is\naffiliated, and the nature and date of the contact. After notifying the Company of the contact, Employee must receive written consent from the\nCompany before discussing the matter with such Customer. For purposes of this Subsection III(E)(2), requests for consent must be delivered via\novernight mail (signature required) to the current Executive Vice President or Senior Vice President of the business unit for which Employee\nworked as of the Separation Date, with a copy via overnight mail (signature required) to Kenneth F. Spence, III, Travelers, Executive Vice\nPresident and General Counsel, 385 Washington Street, Mail Code LC12L, St. Paul, MN 55102-1396 (or his successor).	EX-10.35 2 a2230860zex-10_35.htm EX-10.35\nExhibit 10.35\nAMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered\ninto this\nth day of\n,\n20 , by and between The Travelers Companies, Inc., a Minnesota corporation, including its present and future\naffiliated entities (collectively, the “Company”), and XXXX (the “Employee”).\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of underwriting and selling insurance and insurance-related products throughout\nthe United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties agree\nas follows:\nSECTION 1.\nCONSIDERATION.\n(a)\nAs consideration for the execution of this Agreement, the Employee acknowledges receipt of the amount of Five Thousand\nDollars ($5,000.00) (“the Consideration”), to the extent not previously paid in connection with the execution of a prior version of this\nAgreement, which constitutes good, valuable and independent consideration for all of Employee’s covenants and obligations in this Agreement\nand is above and beyond any compensation Employee is entitled to receive from the Company.\n(b)\nAs further consideration for the execution of this Agreement, the Employee shall be eligible to participate in and receive the\nbenefits of the executive severance plan as set forth in Schedule B of The Travelers Severance Plan (as amended and restated effective January 1,\n2015) (the “Severance Plan”), in the event Employee is involuntarily terminated because of a reduction in force, involuntarily terminated for\nreasons other than Cause (as defined in Section 2) or asked to take a substantial demotion, and otherwise pursuant to the terms and conditions of\nthe Severance Plan and regardless of any amendment to or termination of the Severance Plan, except that for the purpose of Schedule B, the\nnumber of months of severance benefit shall in no event be less than 21 months and the “total monthly cash compensation” shall in no event be\nless than one twelfth (1/12) of the Employee’s base salary in effect at the time of his/her termination of employment (“final base salary”) plus the\ngreater of (i) one twelfth (1/12) of the average of his/her two most recent cash payments under the annual incentive compensation plan of the\nCompany, or (ii) one twelfth (1/12) of 125% of the final base salary for any Employee who is serving the Employer in a position of Executive\nVice President or equivalent (as determined by Company and the position of Vice Chairman is\ndeemed to be equivalent to Executive Vice President); and 110% of the final base salary of any Employee who is serving the Employer in a\nposition of Senior Vice President or equivalent (as determined by Company). Further, in order to be eligible for benefits under the Severance\nPlan, Employee will be required to, among other things, execute a Waiver and Release, as defined in the Severance Plan, in a form satisfactory to\nCompany. (The current standard non-solicitation clauses included in the Waiver and Release are attached and incorporated herein for your\nreference as Exhibit A.) Nothing in this Agreement is intended or may be interpreted to amend or revise the Severance Plan, except as set forth\nand applicable herein. Schedule B of the Severance Plan, as in effect as of the date hereof (“Schedule B”), is incorporated herein by reference.\nSuch Schedule B, together with the above described enhanced benefit set forth a schedule of minimum severance for Employee and other\nmembers of the Management Committee. To the extent the Company revises the existing Severance Plan to increase the benefits, Employee will\nbe entitled to the greater of (i) the new increased benefits under the Severance Plan or (ii) the Severance Plan benefits in existence at the time this\nAgreement was executed, in each case, with any additional enhancements as applicable pursuant to this Section 1(b). To the extent Company\nrevises the Severance Plan to decrease benefits or adopts a Severance Plan which allows for a benefit to be paid that is less than that set forth in\nSchedule B, Employee shall be entitled to the benefits set forth in Schedule B, as modified by this Section 1(b).\nSECTION 2.\nDEFINITIONS\nFor purposes of this Agreement, the following terms are defined as follows:\n(a)\n“Cause” shall mean Employee’s conviction of any felony, Employee’s willful misconduct in connection with the performance\nof Employee’s duties with Company, or Employee’s taking illegal action in Employee’s business or personal life that harms the reputation or\ndamages the good name of Company.\n(b)\n“Change of Control” shall mean any of the following (i) members of the Board of Directors on the date hereof (“Incumbent\nBoard”) cease for any reason to constitute a majority thereof, provided that persons subsequently becoming directors with the approval of\ndirectors constituting at least two-thirds (2/3) of the Incumbent Board (either by a specific vote or by approval of the proxy statement of the\nCompany in which such person is named as a nominee for director, without written objection to such nomination) will be considered as members\nof the Incumbent Board provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual\nor threatened election contest (as described in Rule 14a-11 under the Securities Exchange Act of 1934 (the “Act”)) (“Election Contest”) or any\nother actual or threatened solicitation of proxies or consents by or on behalf of any “person” (as such term is defined in Section 3(a)(9) of the\nAct) other than the Board (“Proxy Contest”), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy\nContest, shall be deemed to be a member of the Incumbent Board, or (ii) any person as defined in the Act, other than the Company, a Company\nsubsidiary, any employee benefit plan (or related trust) sponsored or maintained by the Company or any\n2\nCompany subsidiary, any employee or any group of persons including an employee (or any entity controlled by an employee or any group of\npersons including an employee) or an underwriter temporarily holding securities pursuant to an offering of such securities, is or becomes the\nbeneficial owner, directly or indirectly, of 30% or more of the company’s voting securities, or (iii) the consummation of a merger, consolidation,\nstatutory share exchange or similar form of corporate transaction involving the Company, or any of its subsidiaries that requires the approval of\nthe Company’s stockholders, whether for such transaction or the issuance of securities in the transaction, or the sale or other disposition of all or\nsubstantially all of the Company’s assets to an unaffiliated entity, unless immediately after such corporate transaction or sale, (A) more than 60%\nof the total voting securities of the corporation resulting from such corporate transaction or sale (or if applicable, the ultimate parent corporation\nthat directly or indirectly has beneficial ownership of 100% of the voting securities eligible to elect directors of the surviving company) is\nrepresented by voting securities of the Company that were outstanding immediately prior to such corporate transaction or sale (or by shares into\nwhich such Company voting securities were converted pursuant to such corporate transaction or sale) and such voting power among the holders\nthereof is in substantially the same proportion as the voting power of such Company voting securities among the holders thereof immediately\nprior to the corporate transaction or sale, (B) no person (other than any employee benefit plan (or related trust) sponsored or maintained by the\nsurviving company or the parent company), is or becomes the beneficial owner, directly or indirectly, of 30% or more of the total voting power of\nthe outstanding voting securities eligible to elect directors of the parent company (or, if there is no parent company, the surviving company) and\n(C) at least a majority of the members of the board of directors of the parent company (or, if there is no parent company, the surviving company)\nfollowing the consummation of the corporate transaction or sale were members of the Incumbent Board at the time of the Board’s approval of the\nexecution of the initial agreement providing for such corporate transaction or sale (any corporate transaction or sale which satisfies all of the\ncriteria specified in (A) (B) and (C) above shall be deemed to be a “Non-Qualifying Transaction”); or (iv) the Company’s shareholders approve a\nplan of complete liquidation or dissolution of the Company. Notwithstanding the foregoing, a Change of Control shall not be deemed to occur\nsolely because any person acquires beneficial ownership of more than 30% of the Company voting securities as a result of the acquisition of\nCompany voting securities by the Company which reduces the number of Company voting securities outstanding; provided that if after such\nacquisition by the Company such person becomes the beneficial owner of additional Company voting securities that increases the percentage of\noutstanding Company voting securities beneficially owned by such person, a Change of Control of the Company shall then occur.\n(c)\n“Constructive Discharge” shall mean conduct by the Company that would lead a reasonable person to leave employment due to\nintolerable conditions created by the Company, reduction of the Employee’s base salary (except in the event of a generally proportionate\nreduction of all of the Management Committee members’ salaries), the cessation of the Employee being a member of the Management\nCommittee (provided, however, that in the event Employee voluntarily steps down from the Management\n3\nCommittee, this Agreement shall become void three months from that date), changing Employee’s reporting relationship that results in Employee\nreporting to someone who is not a member of the Management Committee, the Chairman or the Chief Executive Officer, changing Employee’s\nreporting relationship or reducing his/her responsibilities such that it would cause a reasonable person to resign and causes Employee to resign,\nor requiring Employee to accept a position that would reasonably require relocation.\n(d)\n“Restricted Period” shall mean the twelve (12) month period following the Employee’s termination of employment.\n(e)\n“Management Committee” shall mean the most senior policy setting group of executives within the Company, excluding the\nChairman and the Chief Executive Officer.\nSECTION 3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION.\n(a)\nEmployee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents (“Confidential Information”).\nEmployee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any Confidential Information\nfor his/her own personal benefit or for the benefit of any person or entity, except that Employee may disclose Confidential Information pursuant\nto a properly issued subpoena, court order, other legal process, or official inquiry of a federal, state or local taxing authority, or other\ngovernmental agency with a legitimate legal right to know the Confidential Information. If disclosure is compelled of Employee by subpoena,\ncourt order or other legal process, or as otherwise required by law, Employee agrees to notify Company as soon as notice of such process is\nreceived and before disclosure and/or appearance takes place. Employee will use reasonable and prudent care to safeguard and prevent the\nunauthorized use or disclosure of Confidential Information. Confidential Information shall not include any information that: (a) is or becomes a\npart of the public domain through no act or omission of Employee or is otherwise available to the public other than by breach of this Agreement;\n(b) was in Employee’s lawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee’s employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from the\nCompany to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by Employee outside\nof Employee’s employment with the Company and without the use of any Confidential Information. Employee further acknowledges that\nEmployee, in the course of employment, has had and will have access to such Confidential Information.\n(b)\nEmployee agrees that every document, computer disk, electronic file, computerized information, computer software program,\nnotation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business of the Company\ncontaining Confidential Information made or acquired by\n4\nthe Employee during employment by the Company is and shall be the sole and exclusive property of Company. The Employee will deliver the\nsame (and every copy, disk, abstract, summary, or reproduction of the same made by or for the Employee or acquired by the Employee)\nwhenever the Company may so require and in any event prior to or at the termination of employment. Nothing in Section 3 is intended or shall\nbe interpreted to mean that the Company may withhold information, including computerized information, relating to Employee’s personal\ncontacts and personal information that may be stored or contained in Employee’s physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee’s business-related contacts, to the extent such information falls outside the definition of\nConfidential Information set forth in Section 3(a) above.\nSECTION 4.\nNON-SOLICITATION/NON-INTERFERENCE.\nThe parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its employees\nand/or its business during the Restricted Period, while recognizing that after his/her termination, Employee is still permitted to freely compete\nwith the Company, except to the extent Confidential Information is used in such solicitation and subject to certain restrictions set forth below.\nFurther, nothing in this Agreement is intended to grant or limit any rights or claims as to any future employer of Employee. To this end, any\ncourt considering the enforcement of this Agreement for a breach of this Agreement, must accept this statement of intent.\n(a)\nAfter Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to recruit or\nsolicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or otherwise affect the\nemployment of any person who was or is employed by the Company at any time during the last three months of Employee’s employment or\nthereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or engage any such person. The parties\nagree that Employee shall not directly engage in the aforesaid conduct through a third party for the purpose of colluding to avoid the restrictions\nin this Agreement. However, nothing in this Agreement precludes Employee from directing a third party (including but not limited to employees\nof his/her subsequent employer or a search firm) to broadly solicit, recruit, and hire individuals, some of whom may be employees of the\nCompany, provided that Employee does not specifically direct such third party to specifically target the Company’s employees generally or\nspecific individual employees of the Company.\n(b)\nAfter Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with a\ndirect competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to solicit or assist\nin soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or otherwise affect any person or\nentity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with the Company, and/or move that business\nelsewhere. Employee also agrees\n5\nnot to be directly and personally involved in the negotiation or solicitation of any individual book roll over(s) or other book of business transfer\narrangements involving the transfer of business away from Company, even if Confidential Information is not involved. However, nothing in this\nAgreement precludes the Employee from directing a third party (including but not limited to employees of his/her subsequent employer) to\nsolicit, compete for, negotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential\nInformation provided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the Employee from\nfreely competing with the Company including but not limited to competing on an account by account or deal by deal basis to the extent that\nhe/she does not use Confidential Information.\n(c)\nThis Section 4 is inapplicable in the event Employee accepts and signs the Waiver and Release as described in Section 12(e).\nSECTION 5.\nATTORNEYS’ FEES.\nIf a dispute arises concerning the terms and conditions of this Agreement, Employee and Company agree to pay their own respective\nattorneys’ fees and costs.\nSECTION 6.\nEXTENSION OF OBLIGATIONS.\nIf Employee breaches any of the provisions of Section 4 of this Agreement, and if the Company brings legal action for injunctive relief\nduring the Restricted Period and injunctive relief is ordered by a court of competent jurisdiction, then one day of additional time shall be added to\nthe restriction for each day of noncompliance, up to a maximum of twelve (12) months, so that the Company is given the benefit of Employee’s\ncompliance with the restriction for twelve (12) months following employment as agreed. If, however, the Company takes no action within the\nRestricted Period, then the Company shall have no right to bring a legal action under this Agreement against Employee.\nSECTION 7.\nCONSENT TO JURISDICTION.\nJurisdiction and venue for enforcement of this Agreement, and for resolution of any dispute under this Agreement, shall be exclusively\nin the federal or state courts in the state and county where the Employee resides at the time that the Company commences an enforcement\naction. Employee agrees to advise the Company’s General Counsel of his/her residence during the Restricted Period.\n6\nSECTION 8.\nEMPLOYMENT-AT-WILL.\nEmployee specifically recognizes and agrees that nothing in this Agreement shall be deemed to change the existing employment\nrelationship between the Employee and the Company, and that this Agreement is not an employment agreement for continued employment.\nSECTION 9.\nGOVERNING LAW.\nThis Agreement shall be construed interpreted in accordance with the laws of the State of Minnesota.\nSECTION 10.\nWAIVER.\nThe waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach of\nthis Agreement. To the extent that a common law duty exists with respect to the use of Confidential Information that would cause the Company\nirreparable harm, Employee recognizes and acknowledges his/her obligation to abide by that duty both before and after the Restricted Period.\nSECTION 11.\nSEVERABILITY.\nIf any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable in whole or in part, this\nadjudication shall not affect the validity of the remainder of the Agreement, including any other provision, section or subsection. Each provision,\nsection, and subsection of this Agreement is separable from every other provision, section and subsection and constitutes a separate and distinct\ncovenant. Both Employee and the Company agree that if any court rules that a restriction contained in this Agreement is unenforceable as\nwritten, the parties will meet and confer to negotiate the reformation of the provision.\nSECTION 12.\nASSIGNMENT AND EXPIRATION OF AGREEMENT.\n(a)\nThis Agreement is not assignable by Employee or the Company without the written consent of the other party.\n(b)\nIt is the intent of the Company that all members of the Management Committee will sign and be bound by the terms of this\nAgreement. The Company also agrees that all future Management Committee members will be required to sign a non-solicitation non-disclosure\nagreement within thirty (30) days of joining the Management Committee, such agreement to be on the same terms as this Agreement, except for\n7\nconforming changes, technical changes and corrections which are not more favorable to such person than as provided in this Agreement as then\nin effect.\n(c) The Company agrees that it will not amend, alter, modify, or otherwise change the terms of the non-solicitation non-disclosure\nagreement for any present or future Management Committee member, except as referenced in Sections 12(b) or 12(f). If the Company amends,\nalters, modifies or otherwise changes the terms of the non-solicitation nondisclosure agreement for any present or future Management Committee\nmember such that the terms are less restrictive than the terms set forth in this Agreement, the Company will modify the terms of this Agreement\nto reflect the less restrictive terms. The Company agrees to notify Employee in writing within fourteen (14) days of its execution or modification\nof such a non-solicitation non-disclosure agreement with any present or future Management Committee member. Additionally, in the event that\nfuture members of the Management Committee are not required to execute this Agreement, do not sign the Agreement within thirty (30) days of\njoining the Management Committee, or any member of the Management Committee is no longer bound by this Agreement and permitted to\nremain on the Management Committee, then this Agreement shall immediately become void. The Company agrees to advise Employee within\nfourteen (14) days, that the Agreement has become void.\n(d)\nIn the event that Employee is removed from the Management Committee, and/or Employee is Constructively Discharged, then\nthis Agreement shall immediately become void; provided, however, that if the Employee is Constructively Discharged following a Change of\nControl, then Employee shall have the option upon written notice to the Company within 90 days following such Constructive Discharge to\ncause this Agreement to become void and, in the absence of making any such election, this Agreement shall remain in effect.\n(e)\nIn the event that Employee loses employment under the conditions as defined in the Severance Plan or as further defined in\nSection 1(b) and Employee accepts and signs the Waiver and Release, as defined and required by the Severance Plan, then Employee shall\nreceive the enhanced benefits set forth in Section 1(b), and the non-solicitation terms set forth in such Waiver and Release shall supersede the\nterms set forth in Section 4 hereof.\n(f)\nThe Company may, from time to time, deem it necessary to enter into an agreement on a temporary basis that provides greater\nseverance benefits than are being provided in Section 1(b) when hiring a new member of the Management Committee or when asking an existing\nmember to relocate or asking a member to take a position substantially different from the member ’s current position. In the event those greater\nseverance benefits are provided for a period longer than 24 months, the benefits under this Agreement shall be enhanced, on a proportionate basis\n(for example, if such new member’s benefit was increased by 12 months over Employee’s benefit, then Employee’s benefit would be increased\nby 12 months), to incorporate the increased benefits provided to the other employee.\n8\n(g)\nNotwithstanding Sections 12(b) and 12(c), the Company agrees that in the event Employee has an existing agreement in place\nwith Company with more restrictive non-solicitation and/or non-disclosure terms, those more restrictive terms will govern until their expiration,\nif any, at which time this Agreement will wholly take effect. In the event Employee has an existing agreement in place with Company with no or\nless restrictive non-solicitation and/or non-disclosure terms, the more restrictive terms contained in this Agreement will govern.\nSECTION 13. RELIEF\n(a)\nEmployee expressly acknowledges that the terms of Sections 3 and 4 are material to this Agreement. Employee further\nacknowledges and agrees that the Confidential Information acquired during Employee’s employment with the Company is valuable and unique,\nand that any breach by Employee of the provisions of Sections 3 and 4 will cause the Company irreparable injury and damage that cannot\nreasonably or adequately be compensated by monetary damages. Employee, therefore, expressly agrees that the Company shall be entitled to\ninjunctive relief in a court of competent jurisdiction in accordance with the laws of the applicable jurisdiction.\n(b)\nThe parties agree that injunctive relief is the exclusive remedy that is available to the Company against Employee in the event\nthe Employee breaches this Agreement.\n(c)\nIf the Company takes no legal action within the Restricted Period, then it shall not be entitled to bring any legal action under\nthis Agreement against Employee or for any extension of the Restricted Period.\nSECTION 14.\nENTIRE AGREEMENT.\nThis Agreement constitutes the entire Agreement and understanding between the Company and the Employee concerning the subject\nmatters hereof and shall supersede and replace any previously executed non-solicitation non-disclosure agreement between the Company and\nEmployee. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing and signed by the\nEmployee and a duly authorized representative of the Company.\n9\nIN WITNESS WHEREOF, the Company and Employee have duly executed this Agreement under seal as of the day and year first\nabove written.\nTHE TRAVELERS COMPANIES, INC.\nBy:\nName: John P. Clifford Jr.\nTitle: Executive Vice President and Chief Human Resources Officer\nXXXXXXX\n10\nEXHIBIT A\nCovenants Not to Solicit/Hire/Interfere. Employee acknowledges and agrees that, by virtue of opportunities derived from Employee’s access\nto Confidential Information and employment with the Company, Employee is capable of significantly and adversely impacting the existing\nrelationships of the Company Entities with their clients, customers, policyholders, vendors, consultants, employees, and/or agents. Employee\nacknowledges that the Company Entities have a legitimate interest in protecting these relationships against solicitation and/or interference by\nEmployee during Employee’s employment and for a reasonable period of time following the Separation Date. Accordingly, the parties agree that\nthe covenants described in this Subsection III(E) and its subparts shall apply (i) during Employee’s employment with the Company and (ii) for a\nduration of twelve (12) months following the Separation Date (together, “the Restricted Period”). Employee acknowledges and agrees that the\ncovenants described in this Subsection III(E) and its subparts are expressly intended to protect and preserve the legitimate business interests and\ngoodwill of the Company Entities. Employee acknowledges that the Consideration provides independent and fair consideration for these\ncovenants.\n1.\nNon-Solicitation/Non-Hire of Employees. Employee acknowledges that the Company Entities sustain their operations and\nthe goodwill of their clients, customers, policyholders, vendors, consultants, producers, agents and brokers (“Customers”) through their\nemployees. The Company Entities have made significant investment in their employees and their ability to establish and maintain relationships\nwith each other and with the Company Entities’ Customers in order to further their operations and cultivate goodwill. Employee acknowledges\nthat the loss of the Company Entities’ employees could adversely affect its operations and jeopardize the goodwill that has been established\nthrough these employees, and that the Company Entities therefore have a legitimate interest in preventing the solicitation of their employees.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, seek to recruit or solicit, attempt to influence or assist, participate in or promote the solicitation of, or otherwise attempt to adversely\naffect the employment of any person who was or is employed by any Company Entity on the Separation Date or was employed by any Company\nEntity within twelve (12) months prior to the Separation Date or thereafter. Without limiting the foregoing restriction, Employee shall not, on\nbehalf of Employee or any other person, hire, employ or engage any such person and shall not engage in the aforesaid conduct through a third\nparty for the purpose of colluding to avoid the restrictions in this Section. Without limiting the generality of the restrictions under this Section,\nby way of example, the restrictions under this Section shall prohibit Employee from (i) interviewing a Company Entity employee,\n(ii) communicating in any manner with a Company Entity employee in connection with a current or future employment opportunity outside of\nthe Company, (iii) identifying Company Entity employees to potentially be solicited or hired, (iv) providing information or feedback regarding\nCompany Entity employees seeking employment with the Employees subsequent employer and/or (v) otherwise assisting or participating in the\nsolicitation or hiring of a Company Entity employee. Employee further agrees that, during such time, if a person who is employed by any\nCompany Entity contacts Employee about prospective employment, Employee will inform such person that Employee cannot discuss the matter,\nunless and until consent of the Company has been obtained. Employee shall not provide any other person the name of, or information regarding,\nany person employed by any Company Entity who contacts Employee about prospective employment. For purposes of this Subsection III(E)(1),\nrequests for consent must be delivered via overnight mail (signature required) to John P. Clifford, Jr., Travelers, Executive Vice President of\nHuman Resources, 385 Washington Street, Mail Code SB02W, St. Paul, MN 55102-1396 (or his successor), with a copy via overnight mail\n(signature required) to Kenneth F. Spence, III, Travelers, Executive Vice President and General Counsel, 385 Washington Street, Mail Code\nLC12L, St. Paul, MN 55102-1396 (or his successor).\n2.\nNon-Solicitation of and Non-Interference with Existing Commercial Relationships. Employee acknowledges that by\nvirtue of his or her employment with the Company, Employee has developed relationships with and/or had access to Confidential Information\nabout the Company Entities’ Customers and is, therefore, capable of significantly and adversely impacting existing relationships that the\nCompany Entities have with them. Employee further acknowledges that the Company Entities have invested in their and Employee’s\nrelationship with the Company Entities’ Customers and the goodwill that has been developed with them, and therefore have a legitimate interest\nin protecting these relationships against solicitation and/or interference by Employee for a reasonable period of time after the Separation Date.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, solicit any person or entity, who or that, as of the Separation Date, was or is a Customer of any Company Entity, to discontinue\nbusiness with any Company Entity and/or move that business elsewhere, or otherwise change an existing customer relationship with any\nCompany Entity. Employee further agrees that, during such time, if such a Customer contacts Employee about discontinuing business with any\nCompany Entity, and/or moving that business elsewhere, or otherwise changing an existing commercial relationship with any Company Entity,\nEmployee will inform such Customer that Employee cannot discuss the matter without notifying the Company. Prior to any discussion of the\nmatter, Employee is obligated to notify the Company of the name of the person who made the contact, the Customer with whom the person is\naffiliated, and the nature and date of the contact. After notifying the Company of the contact, Employee must receive written consent from the\nCompany before discussing the matter with such Customer. For purposes of this Subsection III(E)(2), requests for consent must be delivered via\novernight mail (signature required) to the current Executive Vice President or Senior Vice President of the business unit for which Employee\nworked as of the Separation Date, with a copy via overnight mail (signature required) to Kenneth F. Spence, III, Travelers, Executive Vice\nPresident and General Counsel, 385 Washington Street, Mail Code LC12L, St. Paul, MN 55102-1396 (or his successor).
c14ccb5886fe78f6966af9d7e2f9c036.pdf	effective_date jurisdiction party term	EX-10.9 11 dex109.htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.9\nCONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis CONFIDENTIALITY AND NONCOMPETITION AGREEMENT (this “Agreement”) is made and entered into as of this day of\n, 2004, by and between American Campus Communities, Inc. (the “Company”) and\n(the “Executive”).\nWITNESSETH:\nWHEREAS, the Company and Executive have entered into an employment agreement (the “Employment Agreement”) on a date even\nherewith; and\nWHEREAS, the Company, as a condition of entering into the Employment Agreement, desires to obtain certain restrictive covenants\nfrom Executive, as described below, and Executive is willing to agree to such restrictive covenants in consideration of compensation and benefits set\nforth in the Employment Agreement.\nNOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable\nconsideration, the receipt of which is mutually acknowledged, the Company and Executive agree as follows:\nSection 1. Definitions.\n(a) “Board” shall mean the Board of Directors of the Company.\n(b) “Cause” shall have the meaning set forth in the Employment Agreement.\n(c) “Change in Control” shall have the meaning set forth in the Employment Agreement.\n(d) “Competitive Activities” shall mean any business activities involving the development, acquisition, sale or management of facilities\nwhose primary function and purpose is student housing and/or the provision of third party student housing services to providers of student housing.\n(e) “Confidential Information” shall have the meaning set forth in Section 3 hereof.\n(f) “Developments” shall have the meaning set forth in Section 7 hereof.\n(g) “Good Reason” shall have the meaning set forth in the Employment Agreement.\n(h) “Restricted Period” shall mean the period commencing on the Effective Date and ending on (i) the second (2nd) anniversary of\nExecutive’s termination of employment for by the Company for Cause or by Executive without Good Reason, or (ii) the first (1st) anniversary of\nExecutive’s termination of employment (A) by the Company other than for Cause; (B) by Executive with Good Reason; or (C) by Executive for any\nreason at any time during the one-year period following a Change in Control.\n(i) “Term of Employment” shall have the meaning set forth in the Employment Agreement.\nSection 2. Reasonableness of Covenants.\nExecutive acknowledges and agrees that (A) the agreements and covenants contained in this Agreement are (i) reasonable and valid in\ngeographical and temporal scope and in all other respects, and (ii) essential to protect the value of the Company’s business and assets, and (B) by his\nemployment with the Company, Executive will obtain knowledge, contacts, know-how, training and experience and there is a substantial probability\nthat such knowledge, know-how, contacts, training and experience could be used to the substantial advantage of a competitor of the Company and to\nthe Company’s substantial detriment.\nSection 3. Confidential Information.\nAt any time during and after the end of the Term of Employment, without the prior written consent of the Board, except to the extent\nrequired by an order of a court having jurisdiction or under subpoena from an appropriate government agency, in which event, Executive shall use\nhis best efforts to consult with the Board prior to responding to any such order or subpoena, and except as required in the performance of his duties\nunder the Employment Agreement, Executive shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto the Company, or (b) that the Company or any of its affiliates may receive belonging to suppliers, customers or others who do business with the\nCompany (“Confidential Information”). Executive’s obligation under this Section 3 shall not apply to any information which (i) is known publicly;\n(ii) is in the public domain or hereafter enters the public domain without the breach of the Executive of this Section 3; (iii) is known to Executive\nprior to his receipt of such information from the Company, as evidenced by Executive’s written records; or (iv) is disclosed after termination of\nExecutive’s employment to Executive by a third party not under an obligation of confidence to the Company.\nSection 4. Non-Competition.\nExecutive covenants and agrees that during the Restricted Period, in any jurisdiction in which the Company is engaged in business at the\ntime of such termination, Executive shall not, directly or indirectly: (a) engage in Competitive Activities, whether individually or as principal,\npartner, officer, director, consultant, employee, stockholder or manager of any person, partnership, corporation, limited liability company or any\nother entity; or (b) own interests in student housing properties that are competitive, directly or indirectly, with any business carried on by the\nCompany, it successors, or its subsidiaries and affiliates. Notwithstanding the foregoing, Executive may, directly or indirectly, own, solely as an\ninvestment, securities of any entity engaged in Competitive Activities which are publicly traded\non a national or regional stock exchange or on the over-the-counter market; provided that Executive (A) is not a controlling person of, or member of\na group which controls, such entity and (B) does not, directly or indirectly, own 2% or more of any class of securities of any such entity.\nSection 5. Non-Solicitation; Non-Interference.\nDuring the Restricted Period, Executive shall not, directly or indirectly, for his own account or for the account of any other individual or\nentity, nor shall he assist any person or entity to (i) encourage, solicit or induce, or in any manner attempt to solicit or induce, any person employed\nby, as agent of, or a service provider to, the Company to terminate such person’s employment, agency or service, as the case may be, with the\nCompany; or (ii) divert, or attempt to divert, any person, concern, or entity from doing business with the Company or any of its subsidiaries, or\nattempt to induce any such person, concern or entity to cease being a customer or supplier of the Company.\nSection 6. Return of Documents.\nIn the event of the termination of Executive’s employment for any reason, Executive shall deliver to the Company all of (i) the property\nof the Company, and (ii) the documents and data of any nature and in whatever medium of the Company, and he shall not take with him any such\nproperty, documents or data or any reproduction thereof, or any documents containing or pertaining to any Confidential Information.\nSection 7. Works for Hire.\nExecutive agrees that the Company shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask\nwork rights and other rights throughout the world) in any inventions, works of authorship, mask works, ideas or information made or conceived or\nreduced to practice, in whole or in part, by Executive (either alone or with others) during the Term of Employment that relate to the Company’s\nbusiness activities (the “Developments”); provided, however, that the Company shall not own Developments for which no equipment, supplies,\nfacility, trade secret information or Confidential Information of the Company was used and which were developed entirely on Executive’s time, and\nwhich do not relate (A) to the business of the Company or its affiliates, or (B) to the Company’s or its affiliates’ actual or demonstrably anticipated\nresearch or development. Subject to the foregoing, Executive will promptly and fully disclose to the Company, or any persons designated by it, any\nand all Developments made or conceived or reduced to practice or learned by Executive, either alone or jointly with others during the Term of\nEmployment that relate to the Company’s business activities. Executive hereby assigns all right, title and interest in and to any and all of these\nDevelopments to the Company. Executive agrees to assist the Company, at the Company’s expense, to further evidence, record and perfect such\nassignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. Executive hereby irrevocably\ndesignates and appoints the Company and its agents as attorneys-in-fact to act for and on Executive’s behalf to execute and file any document and to\ndo all other lawfully permitted acts to further the purposes of the foregoing with the same legal force and effect as if executed by Executive. In\naddition, and not in contravention of any of the foregoing, Executive\nacknowledges that all original works of authorship which are made by him (solely or jointly with others) within the scope of employment and which\nare protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USC Sec. 101). To the extent\nallowed by law, this includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as\n“moral rights.” To the extent Executive retains any such moral rights under applicable law, Executive hereby waives such moral rights and consents\nto any action consistent with the terms of this Agreement with respect to such moral rights, in each case, to the full extent of such applicable law.\nExecutive will confirm any such waivers and consents from time to time as requested by the Company.\nSection 8. Blue Pencil.\nIf any court of competent jurisdiction shall at any time deem the duration or the geographic scope of any of the provisions of this\nAgreement unenforceable, the other provisions of this Agreement shall nevertheless stand and the duration and/or geographic scope set forth herein\nshall be deemed to be the longest period and/or greatest size permissible by law under the circumstances, and the parties hereto agree that such court\nshall reduce the time period and/or geographic scope to permissible duration or size.\nSection 9. Injunctive Relief.\nWithout intending to limit the remedies available to the Company, Executive acknowledges that a breach of any of the covenants\ncontained in this Agreement may result in material irreparable injury to the Company or its subsidiaries or affiliates for which there is no adequate\nremedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof, the\nCompany shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction, without the necessity of proving\nirreparable harm or injury as a result of such breach or threatened breach of this Agreement, restraining Executive from engaging in activities\nprohibited by this Agreement or such other relief as may be required specifically to enforce any of the covenants in this Agreement. Notwithstanding\nany other provision to the contrary, the Restricted Period shall be tolled during any period of violation of any of the covenants in Section 4 or Section\n5 hereof and during any other period required for litigation during which the Company seeks to enforce this covenant against Executive if it is\nultimately determined that such person was in breach of such covenants.\nSection 10. Successors and Assigns.\nThis Agreement shall inure to the benefit of and be enforceable by, and may be assigned by the Company to, any purchaser of all or\nsubstantially all of the Company’s business or assets, any successor to the Company or any assignee thereof (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise).\nSection 11. Waiver and Amendments.\nAny waiver, alteration, amendment or modification of any of the terms of this Agreement shall be valid only if made in writing and\nsigned by the parties hereto; provided, however, that any such waiver, alteration, amendment or modification is consented to on the\nCompany’s behalf by the Board. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with\nrespect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing\nwaiver.\nSection 12. Severability and Governing Law.\nIf any covenants or such other provisions of this Agreement are found to be invalid or unenforceable by a final determination of a court\nof competent jurisdiction: (a) the remaining terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or provision\nhereof shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid\nor unenforceable term or provision hereof. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH\nTHE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF) APPLICABLE\nTO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.\nSection 13. Section Headings.\nThe headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a\npart thereof, affect the meaning or interpretation of this Agreement or of any term or provision hereof.\nSection 14. Entire Agreement.\nThis Agreement constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof. This\nAgreement supersedes all prior negotiations, discussions, correspondence, communications, understandings and agreements between the parties\nrelating to the subject matter of this Agreement.\nSection 15. Counterparts.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. The execution of this Agreement may be by actual or facsimile signature.\n***\n[Signatures to appear on the following page.]\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.\nAMERICAN CAMPUS\nCOMMUNITIES, INC.\nBy:\nTitle:\nExecutive	EX-10.9 11 dex109.htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.9\nCONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis CONFIDENTIALITY AND NONCOMPETITION AGREEMENT (this “Agreement”) is made and entered into as of this __ day of\n, 2004, by and between American Campus Communities, Inc. (the “Company”) and (the “Executive”).\n \nWITNESSETH:\nWHEREAS, the Company and Executive have entered into an employment agreement (the “Employment Agreement”) on a date even\nherewith; and\nWHEREAS, the Company, as a condition of entering into the Employment Agreement, desires to obtain certain restrictive covenants\nfrom Executive, as described below, and Executive is willing to agree to such restrictive covenants in consideration of compensation and benefits set\nforth in the Employment Agreement.\nNOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable\nconsideration, the receipt of which is mutually acknowledged, the Company and Executive agree as follows:\nSection 1. Definitions.\n(a) “Board” shall mean the Board of Directors of the Company.\n(b) “Cause” shall have the meaning set forth in the Employment Agreement.\n(c) “Change in Control” shall have the meaning set forth in the Employment Agreement.\n(d) “Competitive Activities” shall mean any business activities involving the development, acquisition, sale or management of facilities\nwhose primary function and purpose is student housing and/or the provision of third party student housing services to providers of student housing.\n(e) “Confidential Information” shall have the meaning set forth in Section 3 hereof.\n(f) “Developments” shall have the meaning set forth in Section 7 hereof.\n(g) “Good Reason” shall have the meaning set forth in the Employment Agreement.\n(h) “Restricted Period” shall mean the period commencing on the Effective Date and ending on (i) the second (279) anniversary of\nExecutive’s termination of employment for by the Company for Cause or by Executive without Good Reason, or (ii) the first (1) anniversary of\nExecutive’s termination of employment (A) by the Company other than for Cause; (B) by Executive with Good Reason; or (C) by Executive for any\nreason at any time during the one-year period following a Change in Control.\n(i) “Term of Employment” shall have the meaning set forth in the Employment Agreement.\nSection 2. Reasonableness of Covenants.\nExecutive acknowledges and agrees that (A) the agreements and covenants contained in this Agreement are (i) reasonable and valid in\ngeographical and temporal scope and in all other respects, and (ii) essential to protect the value of the Company’s business and assets, and (B) by his\nemployment with the Company, Executive will obtain knowledge, contacts, know-how, training and experience and there is a substantial probability\nthat such knowledge, know-how, contacts, training and experience could be used to the substantial advantage of a competitor of the Company and to\nthe Company’s substantial detriment.\nSection 3. Confidential Information.\nAt any time during and after the end of the Term of Employment, without the prior written consent of the Board, except to the extent\nrequired by an order of a court having jurisdiction or under subpoena from an appropriate government agency, in which event, Executive shall use\nhis best efforts to consult with the Board prior to responding to any such order or subpoena, and except as required in the performance of his duties\nunder the Employment Agreement, Executive shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto the Company, or (b) that the Company or any of its affiliates may receive belonging to suppliers, customers or others who do business with the\nCompany (“Confidential Information”). Executive’s obligation under this Section 3 shall not apply to any information which (i) is known publicly;\n(ii) is in the public domain or hereafter enters the public domain without the breach of the Executive of this Section 3; (iii) is known to Executive\nprior to his receipt of such information from the Company, as evidenced by Executive’s written records; or (iv) is disclosed after termination of\nExecutive’s employment to Executive by a third party not under an obligation of confidence to the Company.\nSection 4. Non-Competition.\nExecutive covenants and agrees that during the Restricted Period, in any jurisdiction in which the Company is engaged in business at the\ntime of such termination, Executive shall not, directly or indirectly: (a) engage in Competitive Activities, whether individually or as principal,\npartner, officer, director, consultant, employee, stockholder or manager of any person, partnership, corporation, limited liability company or any\nother entity; or (b) own interests in student housing properties that are competitive, directly or indirectly, with any business carried on by the\nCompany, it successors, or its subsidiaries and affiliates. Notwithstanding the foregoing, Executive may, directly or indirectly, own, solely as an\ninvestment, securities of any entity engaged in Competitive Activities which are publicly traded\non a national or regional stock exchange or on the over-the-counter market; provided that Executive (A) is not a controlling person of, or member of\na group which controls, such entity and (B) does not, directly or indirectly, own 2% or more of any class of securities of any such entity.\nSection 5. Non-Solicitation; Non-Interference.\nDuring the Restricted Period, Executive shall not, directly or indirectly, for his own account or for the account of any other individual or\nentity, nor shall he assist any person or entity to (i) encourage, solicit or induce, or in any manner attempt to solicit or induce, any person employed\nby, as agent of, or a service provider to, the Company to terminate such person’s employment, agency or service, as the case may be, with the\nCompany; or (ii) divert, or attempt to divert, any person, concern, or entity from doing business with the Company or any of its subsidiaries, or\nattempt to induce any such person, concern or entity to cease being a customer or supplier of the Company.\nSection 6. Return of Documents.\nIn the event of the termination of Executive’s employment for any reason, Executive shall deliver to the Company all of (i) the property\nof the Company, and (ii) the documents and data of any nature and in whatever medium of the Company, and he shall not take with him any such\nproperty, documents or data or any reproduction thereof, or any documents containing or pertaining to any Confidential Information.\nSection 7. Works for Hire.\nExecutive agrees that the Company shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask\nwork rights and other rights throughout the world) in any inventions, works of authorship, mask works, ideas or information made or conceived or\nreduced to practice, in whole or in part, by Executive (either alone or with others) during the Term of Employment that relate to the Company’s\nbusiness activities (the “Developments”); provided, however, that the Company shall not own Developments for which no equipment, supplies,\nfacility, trade secret information or Confidential Information of the Company was used and which were developed entirely on Executive’s time, and\nwhich do not relate (A) to the business of the Company or its affiliates, or (B) to the Company’s or its affiliates’ actual or demonstrably anticipated\nresearch or development. Subject to the foregoing, Executive will promptly and fully disclose to the Company, or any persons designated by it, any\nand all Developments made or conceived or reduced to practice or learned by Executive, either alone or jointly with others during the Term of\nEmployment that relate to the Company’s business activities. Executive hereby assigns all right, title and interest in and to any and all of these\nDevelopments to the Company. Executive agrees to assist the Company, at the Company’s expense, to further evidence, record and perfect such\nassignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. Executive hereby irrevocably\ndesignates and appoints the Company and its agents as attorneys-in-fact to act for and on Executive’s behalf to execute and file any document and to\ndo all other lawfully permitted acts to further the purposes of the foregoing with the same legal force and effect as if executed by Executive. In\naddition, and not in contravention of any of the foregoing, Executive\nacknowledges that all original works of authorship which are made by him (solely or jointly with others) within the scope of employment and which\nare protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USC Sec. 101). To the extent\nallowed by law, this includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as\n“moral rights.” To the extent Executive retains any such moral rights under applicable law, Executive hereby waives such moral rights and consents\nto any action consistent with the terms of this Agreement with respect to such moral rights, in each case, to the full extent of such applicable law.\nExecutive will confirm any such waivers and consents from time to time as requested by the Company.\nSection 8. Blue Pencil.\nIf any court of competent jurisdiction shall at any time deem the duration or the geographic scope of any of the provisions of this\nAgreement unenforceable, the other provisions of this Agreement shall nevertheless stand and the duration and/or geographic scope set forth herein\nshall be deemed to be the longest period and/or greatest size permissible by law under the circumstances, and the parties hereto agree that such court\nshall reduce the time period and/or geographic scope to permissible duration or size.\nSection 9. Injunctive Relief.\nWithout intending to limit the remedies available to the Company, Executive acknowledges that a breach of any of the covenants\ncontained in this Agreement may result in material irreparable injury to the Company or its subsidiaries or affiliates for which there is no adequate\nremedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof, the\nCompany shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction, without the necessity of proving\nirreparable harm or injury as a result of such breach or threatened breach of this Agreement, restraining Executive from engaging in activities\nprohibited by this Agreement or such other relief as may be required specifically to enforce any of the covenants in this Agreement. Notwithstanding\nany other provision to the contrary, the Restricted Period shall be tolled during any period of violation of any of the covenants in Section 4 or Section\n5 hereof and during any other period required for litigation during which the Company seeks to enforce this covenant against Executive if it is\nultimately determined that such person was in breach of such covenants.\nSection 10. Successors and Assigns.\nThis Agreement shall inure to the benefit of and be enforceable by, and may be assigned by the Company to, any purchaser of all or\nsubstantially all of the Company’s business or assets, any successor to the Company or any assignee thereof (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise).\nSection 11. Waiver and Amendments.\nAny waiver, alteration, amendment or modification of any of the terms of this Agreement shall be valid only if made in writing and\nsigned by the parties hereto; provided, however, that any such waiver, alteration, amendment or modification is consented to on the\nCompany’s behalf by the Board. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with\nrespect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing\nwaiver.\nSection 12. Severability and Governing Law.\nIf any covenants or such other provisions of this Agreement are found to be invalid or unenforceable by a final determination of a court\nof competent jurisdiction: (a) the remaining terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or provision\nhereof shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid\nor unenforceable term or provision hereof. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH\nTHE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF) APPLICABLE\nTO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.\nSection 13. Section Headings.\nThe headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a\npart thereof, affect the meaning or interpretation of this Agreement or of any term or provision hereof.\nSection 14. Entire Agreement.\nThis Agreement constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof. This\nAgreement supersedes all prior negotiations, discussions, correspondence, communications, understandings and agreements between the parties\nrelating to the subject matter of this Agreement.\nSection 15. Counterparts.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. The execution of this Agreement may be by actual or facsimile signature.\nSk oSk ok\n[Signatures to appear on the following page.]\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.\nAMERICAN CAMPUS\nCOMMUNITIES, INC.\nBy:\nTitle:\nExecutive	EX-10.9 11 dex109.htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.9\nCONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis CONFIDENTIALITY AND NONCOMPETITION AGREEMENT (this "Agreement") is made and entered into as of this day\nof\n2004, by and between American Campus Communities, Inc. (the "Company.") and\n(the "Executive").\nVITNESSETH\nWHEREAS, the Company and Executive have entered into an employment agreement (the "Employment Agreement") on a date even\nherewith; and\nWHEREAS, the Company, as a condition of entering into the Employment Agreement, desires to obtain certain restrictive covenants\nfrom Executive, as described below, and Executive is willing to agree to such restrictive covenants in consideration of compensation and benefits set\nforth in the Employment Agreement.\nNOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable\nconsideration, the receipt of which is mutually acknowledged, the Company and Executive agree as follows:\nSection 1. Definitions.\n(a) "Board" shall mean the Board of Directors of the Company.\n(b) "Cause" shall have the meaning set forth in the Employment Agreement.\n(c) "Change in Control" shall have the meaning set forth in the Employment Agreement.\n(d) "Competitive Activities" shall mean any business activities involving the development, acquisition, sale or management of facilities\nwhose primary function and purpose is student housing and/or the provision of third party student housing services to providers of student housing.\n(e) "Confidential Information" shall have the meaning set forth in Section 3 hereof.\n(f) "Developments" shall have the meaning set forth in Section 7 hereof.\n(g) "Good Reason" shall have the meaning set forth in the Employment Agreement.\n(h) "Restricted Period" shall mean the period commencing on the Effective Date and ending on (i) the second (2nd) anniversary of\nExecutive's termination of employment for by the Company for Cause or by Executive without Good Reason, or (ii) the first (1st) anniversary of\nExecutive's termination of employment (A) by the Company other than for Cause; (B) by Executive with Good Reason; or (C) by Executive for any\nreason at any time during the one-year period following a Change in Control.\n(i) "Term of Employment" shall have the meaning set forth in the Employment Agreement.\nSection 2. Reasonableness of Covenants.\nExecutive acknowledges and agrees that (A) the agreements and covenants contained in this Agreement are (i) reasonable and valid in\ngeographical and temporal scope and in all other respects, and (ii) essential to protect the value of the Company's business and assets, and (B) by his\nemployment with the Company, Executive will obtain knowledge, contacts, know-how, training and experience and there is a substantial probability\nthat such knowledge, know-how, contacts, training and experience could be used to the substantial advantage of a competitor of the Company and to\nthe Company's substantial detriment.\nSection 3. Confidential Information.\nAt any time during and after the end of the Term of Employment, without the prior written consent of the Board, except to the extent\nrequired by an order of a court having jurisdiction or under subpoena from an appropriate government agency, in which event, Executive shall use\nhis best efforts to consult with the Board prior to responding to any such order or subpoena, and except as required in the performance of his duties\nunder the Employment Agreement, Executive shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto\nthe Company, or (b) that the Company or any of its affiliates may receive belonging to suppliers, customers or others who do business with the\nCompany ("Confidential Information"). Executive's obligation under this Section 3 shall not apply to any information which (i) is known publicly;\n(ii) is in the public domain or hereafter enters the public domain without the breach of the Executive of this Section 3; (iii) is known to Executive\nprior to his receipt of such information from the Company, as evidenced by Executive's written records; or (iv) is disclosed after termination of\nExecutive's employment to Executive by a third party not under an obligation of confidence to the Company.\nSection 4. Non-Competition\nExecutive covenants and agrees that during the Restricted Period, in any jurisdiction in which the Company is engaged in business at the\ntime of such termination, Executive shall not, directly or indirectly: (a) engage in Competitive Activities, whether individually or as principal,\npartner, officer, director, consultant, employee, stockholder or manager of any person, partnership, corporation, limited liability company or any\nother entity; or (b) own interests in student housing properties that are competitive, directly or indirectly, with any business carried on by the\nCompany, it successors, or its subsidiaries and affiliates. Notwithstanding the foregoing, Executive may, directly or indirectly, own, solely as\nan\ninvestment, securities of any entity engaged in Competitive Activities which are publicly traded\non a national or regional stock exchange or on the over-the-counter market; provided that Executive (A) is not a controlling person of, or member of\na group which controls, such entity and (B) does not, directly or indirectly, own 2% or more of any class of securities of any such entity.\nSection 5. Non-Solicitation; Non-Interference.\nDuring the Restricted Period, Executive shall not, directly or indirectly, for his own account or for the account of any other individual or\nentity, nor shall he assist any person or entity to (i) encourage, solicit or induce, or in any manner attempt to solicit or induce, any person employed\nby, as agent of, or a service provider to, the Company to terminate such person's employment, agency or service, as the case may be, with the\nCompany; or (ii) divert, or attempt to divert, any person, concern, or entity from doing business with the Company or any of its subsidiaries, or\nattempt to induce any such person, concern or entity to cease being a customer or supplier of the Company.\nSection 6. Return of Documents.\nIn the event of the termination of Executive's employment for any reason, Executive shall deliver to the Company all of (i) the property\nof\nthe Company, and (ii) the documents and data of any nature and in whatever medium of the Company, and he shall not take with him any such\nproperty, documents or data or any reproduction thereof, or any documents containing or pertaining to any Confidential Information.\nSection 7. Works for Hire.\nExecutive agrees that the Company shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask\nwork rights and other rights throughout the world) in any inventions, works of authorship, mask works, ideas or information made or conceived or\nreduced to practice, in whole or in part, by Executive (either alone or with others) during the Term of Employment that relate to the Company's\nbusiness activities (the "Developments"); provided however, that the Company shall not own Developments for which no equipment, supplies,\nfacility, trade secret information or Confidential Information of the Company was used and which were developed entirely on Executive's time, and\nwhich do not relate (A) to the business of the Company or its affiliates, or (B) to the Company's or its affiliates' actual or demonstrably anticipated\nresearch\nor development. Subject to the foregoing, Executive will promptly and fully disclose to the Company, or any persons designated by it, any\nand all Developments made or conceived or reduced to practice or learned by Executive, either alone or jointly with others during the Term of\nEmployment that relate to the Company's business activities. Executive hereby assigns all right, title and interest in and to any and all of these\nDevelopments\nto\nthe\nCompany. Executive agrees to assist the Company, at the Company's expense, to further evidence, record and perfect\nsuch\nassignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. Executive hereby irrevocably\ndesignates and appoints the Company and its agents as attorneys-in-fact to act for and on Executive's behalf to execute and file any document and\nto\ndo all other lawfully permitted acts to further the purposes of the foregoing with the same legal force and effect as if executed by Executive.\nIn\naddition, and not in contravention of any of the foregoing, Executive\nacknowledges that all original works of authorship which are made by him (solely or jointly with others) within the scope of employment and which\nare protectable by copyright are "'works made for hire," as that term is defined in the United States Copyright Act (17 USC Sec. 101). To the extent\nallowed by law, this includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as\n"moral rights." To the extent Executive retains any such moral rights under applicable law, Executive hereby waives such moral rights and consents\nto\nany action consistent with the terms of this Agreement with respect to such moral rights, in each case, to the full extent of such applicable law.\nExecutive will confirm any such waivers and consents from time to time as requested by the Company.\nSection 8. Blue Pencil.\nIf any court of competent jurisdiction shall at any time deem the duration or the geographic scope of any of the provisions of this\nAgreement unenforceable, the other provisions of this Agreement shall nevertheless stand and the duration and/or geographic scope set forth herein\nshall be deemed to be the longest period and/or greatest size permissible by law under the circumstances, and the parties hereto agree that such court\nshall reduce the time period and/or geographic scope to permissible duration or size.\nSection 9. Injunctive Relief.\nWithout intending to limit the remedies available to the Company, Executive acknowledges that a breach of any of the covenants\ncontained in this Agreement may result in material irreparable injury to the Company or its subsidiaries or affiliates for which there is no adequate\nremedy\nat\nlaw, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof,\nthe\nCompany shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction, without the necessity of proving\nirreparable harm or injury as a result of such breach or threatened breach of this Agreement, restraining Executive from engaging in activities\nprohibited by this Agreement or such other relief as may be required specifically to enforce any of the covenants in this Agreement. Notwithstanding\nany other provision to the contrary, the Restricted Period shall be tolled during any period of violation of any of the covenants in Section 4 or Section\n5\nhereof and during any other period required for litigation during which the Company seeks to enforce this covenant against Executive if it is\nultimately determined that such person was in breach of such covenants.\nSection 10. Successors and Assigns.\nThis Agreement shall inure to the benefit of and be enforceable by, and may be assigned by the Company to, any purchaser of all or\nsubstantially all of the Company's business or assets, any successor to the Company or any assignee thereof (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise).\nSection 11. Waiver and Amendments.\nAny waiver, alteration, amendment or modification of any of the terms of this Agreement shall be valid only if made in writing and\nsigned by the parties hereto; provided, however, that any such waiver, alteration, amendment or modification is consented to on the\nCompany's behalf by the Board. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with\nrespect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing\nwaiver.\nSection 12. Severability and Governing Law.\nIf any covenants or such other provisions of this Agreement are found to be invalid or unenforceable by a final determination of a court\nof competent jurisdiction: (a) the remaining terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or provision\nhereof shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid\nor unenforceable term or provision hereof. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH\nTHE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF) APPLICABLE\nTO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.\nSection 13. Section Headings.\nThe headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a\npart thereof, affect the meaning or interpretation of this Agreement or of any term or provision hereof.\nSection 14. Entire Agreement.\nThis Agreement constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof. This\nAgreement supersedes all prior negotiations, discussions, correspondence, communications, understandings and agreements between the parties\nrelating to the subject matter of this Agreement.\nSection 15. Counterparts.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. The execution of this Agreement may be by actual or facsimile signature.\n* *\n[Signatures to appear on the following page.]\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.\nAMERICAN CAMPUS\nCOMMUNITIES, INC.\nBy:\nTitle:\nExecutive	EX-10.9 11 dex109.htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.9\nCONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis CONFIDENTIALITY AND NONCOMPETITION AGREEMENT (this “Agreement”) is made and entered into as of this day of\n, 2004, by and between American Campus Communities, Inc. (the “Company”) and\n(the “Executive”).\nWITNESSETH:\nWHEREAS, the Company and Executive have entered into an employment agreement (the “Employment Agreement”) on a date even\nherewith; and\nWHEREAS, the Company, as a condition of entering into the Employment Agreement, desires to obtain certain restrictive covenants\nfrom Executive, as described below, and Executive is willing to agree to such restrictive covenants in consideration of compensation and benefits set\nforth in the Employment Agreement.\nNOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable\nconsideration, the receipt of which is mutually acknowledged, the Company and Executive agree as follows:\nSection 1. Definitions.\n(a) “Board” shall mean the Board of Directors of the Company.\n(b) “Cause” shall have the meaning set forth in the Employment Agreement.\n(c) “Change in Control” shall have the meaning set forth in the Employment Agreement.\n(d) “Competitive Activities” shall mean any business activities involving the development, acquisition, sale or management of facilities\nwhose primary function and purpose is student housing and/or the provision of third party student housing services to providers of student housing.\n(e) “Confidential Information” shall have the meaning set forth in Section 3 hereof.\n(f) “Developments” shall have the meaning set forth in Section 7 hereof.\n(g) “Good Reason” shall have the meaning set forth in the Employment Agreement.\n(h) “Restricted Period” shall mean the period commencing on the Effective Date and ending on (i) the second (2nd) anniversary of\nExecutive’s termination of employment for by the Company for Cause or by Executive without Good Reason, or (ii) the first (1st) anniversary of\nExecutive’s termination of employment (A) by the Company other than for Cause; (B) by Executive with Good Reason; or (C) by Executive for any\nreason at any time during the one-year period following a Change in Control.\n(i) “Term of Employment” shall have the meaning set forth in the Employment Agreement.\nSection 2. Reasonableness of Covenants.\nExecutive acknowledges and agrees that (A) the agreements and covenants contained in this Agreement are (i) reasonable and valid in\ngeographical and temporal scope and in all other respects, and (ii) essential to protect the value of the Company’s business and assets, and (B) by his\nemployment with the Company, Executive will obtain knowledge, contacts, know-how, training and experience and there is a substantial probability\nthat such knowledge, know-how, contacts, training and experience could be used to the substantial advantage of a competitor of the Company and to\nthe Company’s substantial detriment.\nSection 3. Confidential Information.\nAt any time during and after the end of the Term of Employment, without the prior written consent of the Board, except to the extent\nrequired by an order of a court having jurisdiction or under subpoena from an appropriate government agency, in which event, Executive shall use\nhis best efforts to consult with the Board prior to responding to any such order or subpoena, and except as required in the performance of his duties\nunder the Employment Agreement, Executive shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto the Company, or (b) that the Company or any of its affiliates may receive belonging to suppliers, customers or others who do business with the\nCompany (“Confidential Information”). Executive’s obligation under this Section 3 shall not apply to any information which (i) is known publicly;\n(ii) is in the public domain or hereafter enters the public domain without the breach of the Executive of this Section 3; (iii) is known to Executive\nprior to his receipt of such information from the Company, as evidenced by Executive’s written records; or (iv) is disclosed after termination of\nExecutive’s employment to Executive by a third party not under an obligation of confidence to the Company.\nSection 4. Non-Competition.\nExecutive covenants and agrees that during the Restricted Period, in any jurisdiction in which the Company is engaged in business at the\ntime of such termination, Executive shall not, directly or indirectly: (a) engage in Competitive Activities, whether individually or as principal,\npartner, officer, director, consultant, employee, stockholder or manager of any person, partnership, corporation, limited liability company or any\nother entity; or (b) own interests in student housing properties that are competitive, directly or indirectly, with any business carried on by the\nCompany, it successors, or its subsidiaries and affiliates. Notwithstanding the foregoing, Executive may, directly or indirectly, own, solely as an\ninvestment, securities of any entity engaged in Competitive Activities which are publicly traded\non a national or regional stock exchange or on the over-the-counter market; provided that Executive (A) is not a controlling person of, or member of\na group which controls, such entity and (B) does not, directly or indirectly, own 2% or more of any class of securities of any such entity.\nSection 5. Non-Solicitation; Non-Interference.\nDuring the Restricted Period, Executive shall not, directly or indirectly, for his own account or for the account of any other individual or\nentity, nor shall he assist any person or entity to (i) encourage, solicit or induce, or in any manner attempt to solicit or induce, any person employed\nby, as agent of, or a service provider to, the Company to terminate such person’s employment, agency or service, as the case may be, with the\nCompany; or (ii) divert, or attempt to divert, any person, concern, or entity from doing business with the Company or any of its subsidiaries, or\nattempt to induce any such person, concern or entity to cease being a customer or supplier of the Company.\nSection 6. Return of Documents.\nIn the event of the termination of Executive’s employment for any reason, Executive shall deliver to the Company all of (i) the property\nof the Company, and (ii) the documents and data of any nature and in whatever medium of the Company, and he shall not take with him any such\nproperty, documents or data or any reproduction thereof, or any documents containing or pertaining to any Confidential Information.\nSection 7. Works for Hire.\nExecutive agrees that the Company shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask\nwork rights and other rights throughout the world) in any inventions, works of authorship, mask works, ideas or information made or conceived or\nreduced to practice, in whole or in part, by Executive (either alone or with others) during the Term of Employment that relate to the Company’s\nbusiness activities (the “Developments”); provided, however, that the Company shall not own Developments for which no equipment, supplies,\nfacility, trade secret information or Confidential Information of the Company was used and which were developed entirely on Executive’s time, and\nwhich do not relate (A) to the business of the Company or its affiliates, or (B) to the Company’s or its affiliates’ actual or demonstrably anticipated\nresearch or development. Subject to the foregoing, Executive will promptly and fully disclose to the Company, or any persons designated by it, any\nand all Developments made or conceived or reduced to practice or learned by Executive, either alone or jointly with others during the Term of\nEmployment that relate to the Company’s business activities. Executive hereby assigns all right, title and interest in and to any and all of these\nDevelopments to the Company. Executive agrees to assist the Company, at the Company’s expense, to further evidence, record and perfect such\nassignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. Executive hereby irrevocably\ndesignates and appoints the Company and its agents as attorneys-in-fact to act for and on Executive’s behalf to execute and file any document and to\ndo all other lawfully permitted acts to further the purposes of the foregoing with the same legal force and effect as if executed by Executive. In\naddition, and not in contravention of any of the foregoing, Executive\nacknowledges that all original works of authorship which are made by him (solely or jointly with others) within the scope of employment and which\nare protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USC Sec. 101). To the extent\nallowed by law, this includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as\n“moral rights.” To the extent Executive retains any such moral rights under applicable law, Executive hereby waives such moral rights and consents\nto any action consistent with the terms of this Agreement with respect to such moral rights, in each case, to the full extent of such applicable law.\nExecutive will confirm any such waivers and consents from time to time as requested by the Company.\nSection 8. Blue Pencil.\nIf any court of competent jurisdiction shall at any time deem the duration or the geographic scope of any of the provisions of this\nAgreement unenforceable, the other provisions of this Agreement shall nevertheless stand and the duration and/or geographic scope set forth herein\nshall be deemed to be the longest period and/or greatest size permissible by law under the circumstances, and the parties hereto agree that such court\nshall reduce the time period and/or geographic scope to permissible duration or size.\nSection 9. Injunctive Relief.\nWithout intending to limit the remedies available to the Company, Executive acknowledges that a breach of any of the covenants\ncontained in this Agreement may result in material irreparable injury to the Company or its subsidiaries or affiliates for which there is no adequate\nremedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof, the\nCompany shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction, without the necessity of proving\nirreparable harm or injury as a result of such breach or threatened breach of this Agreement, restraining Executive from engaging in activities\nprohibited by this Agreement or such other relief as may be required specifically to enforce any of the covenants in this Agreement. Notwithstanding\nany other provision to the contrary, the Restricted Period shall be tolled during any period of violation of any of the covenants in Section 4 or Section\n5 hereof and during any other period required for litigation during which the Company seeks to enforce this covenant against Executive if it is\nultimately determined that such person was in breach of such covenants.\nSection 10. Successors and Assigns.\nThis Agreement shall inure to the benefit of and be enforceable by, and may be assigned by the Company to, any purchaser of all or\nsubstantially all of the Company’s business or assets, any successor to the Company or any assignee thereof (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise).\nSection 11. Waiver and Amendments.\nAny waiver, alteration, amendment or modification of any of the terms of this Agreement shall be valid only if made in writing and\nsigned by the parties hereto; provided, however, that any such waiver, alteration, amendment or modification is consented to on the\nCompany’s behalf by the Board. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with\nrespect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing\nwaiver.\nSection 12. Severability and Governing Law.\nIf any covenants or such other provisions of this Agreement are found to be invalid or unenforceable by a final determination of a court\nof competent jurisdiction: (a) the remaining terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or provision\nhereof shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid\nor unenforceable term or provision hereof. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH\nTHE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF) APPLICABLE\nTO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.\nSection 13. Section Headings.\nThe headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a\npart thereof, affect the meaning or interpretation of this Agreement or of any term or provision hereof.\nSection 14. Entire Agreement.\nThis Agreement constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof. This\nAgreement supersedes all prior negotiations, discussions, correspondence, communications, understandings and agreements between the parties\nrelating to the subject matter of this Agreement.\nSection 15. Counterparts.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. The execution of this Agreement may be by actual or facsimile signature.\n***\n[Signatures to appear on the following page.]\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.\nAMERICAN CAMPUS\nCOMMUNITIES, INC.\nBy:\nTitle:\nExecutive
c2149cc784d2d783c2de0c7b2f02a12f.pdf	effective_date jurisdiction party term	EX-99.(D)(3)(A) 14 dex99d3a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(A)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of May 16, 2002 (the “Effective Date”) by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n(“InterTrust”) and Sony Corporation of America, a New York corporation, with a place of business at 550 Madison Avenue, New York, New York\n10022 (“Company”).\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential (“Confidential Information”); provided that information disclosed by the disclosing party (“Discloser”) will be\nconsidered Confidential Information by the receiving party (“Recipient”), only if such information is conspicuously marked as “Confidential”\nif communicated in writing, or if communicated orally, identified as “Confidential” at time of disclosure. If the Disclosure fails to mark or\nidentify disclosed Confidential Information as “Confidential”, the Recipient shall be responsible for protecting such disclosures in accordance\nwith this Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as “Confidential” and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty’s respective business, strategies, technologies, intellectual property, and related information.\n2. NON -DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use reasonable care, but is no event less than the same degree of care that it uses to protect its own confidential and\nproprietary information of similar importance to prevent the unauthorized use, disclosure, publication or dissemination of Confidential\nInformation. Company may disclose the Confidential Information to any direct or indirect parent, majority-owned subsidiary or Affiliate, and\ntheir agents and professional advisors, provided that such parry agrees to be bound by this Agreement to the same extent as Company is bound\nand Company agrees to be responsible for any breach by these\nPage1of4\nentities, agents and advisors. Affiliate shall mean any entity with more than 50% of its equity owned or controlled directly or indirectly by\nSony Corporation. The purpose of disclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to\nevaluate and comment upon certain Confidential Information so as to enable the enable the Participant to evaluate a potential business\nrelationship or strategic transaction between Recipient and Discloser (the “Purpose”). Recipient agrees not to use Confidential Information\notherwise for its own or any third party’s benefit for any purpose whatsoever, other than the Purpose, without the prior written approval of an\nauthorized representative of Discloser in each instance. Recipient may disclose Confidential Information if required by any judicial or\ngovernmental request, requirement or order; provided that Recipient will take reasonable steps to notify Discloser of such request or order and\nprovides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) In consideration of being finished Confidential Information, each party agrees that, without the prior written consent of the other party, for a\nperiod of one (1) year from the date of this Agreement, neither party nor any of their affiliates (including any person or entity directly or\nindirectly, through one or more intermediaries, controlling a party or controlled by a party or under common control with a party) nor any\nrepresentative will (i) acquire or agree, offer, seek or propose to acquire, ownership (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act of 1934, as amended (the “Exchange Act”) of the assets or business or more than one (1%)\npercent of the outstanding securities issued by the other party or any of its subsidiaries, or any rights or options to acquire such ownership\n(including from a third party), unless such an action is taken in response to a third party that has publicly offered (within the meaning of the\nfederal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such party shall in\nno way assist, advise, encourage or act in concert with such third party; (ii) make, or in any way participate in, any “solicitation” of “proxies”\n(as such terms are defined under Regulation 14A of the Exchange. Act) to vote or seek to advise or influence in any matter whatsoever any\nperson or entity with respect to the voting securities of the other party or any to its subsidiaries; (iii) form, join or in any way participate in a\n“group” (within the meaning of Section 13 (d)(3) of the Exchange Act) with respect to any voting securities of the other party or any of its\nsubsidiaries; (iv) arrange any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable\nfor any voting securities or assets of the other parry or any of its subsidiaries; or (v) otherwise act, whether alone or in concert with others, to\nseek to propose to the other party or any of its shareholders any merger, business combination, restructuring, recapitalization or similar\ntransaction to or with the other party or any of its subsidiaries (unless made in response to a third party that has publicly offered (within the\nmeaning of the federal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such\nparty shall in no way assist, advise, encourage or act in concert with such third party), in each case unless an until specifically invited by the\nother party or a designated representative.\nc) Recipient agrees that without the Discloser’s prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has\nPage2of4\nreceived Confidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient\nand the Discloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel\nthat such disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange\nrules, and the recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\n3. OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\n4. TERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient’s duty to protect\nDiscloser’s Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\n5. INDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser’s information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.\n6. NO WARRANTY. Discloses warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information\nis provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\n7. RETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser’s written request, provided, however, that (1) Recipient shall destroy such information if and to the extent it has\nbeen incorporated. with Confidential Information of Recipient, and (2) Recipient may retain one copy thereof in the confidential, restricted\naccess files of its Law Department for use only in the event a dispute arises between the parties and only in connection with that dispute.\n8. NO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\n9. ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be\nPage3of4\namended except by the written agreement signed by authorized representatives of both parties. This Agreement will be governed by and\nconstrued in accordance with the laws of the State of California, excluding that body of law relating to conflict of laws. The parties to this\nAgreement hereby consent to jurisdiction and venue in the Courts of the State of California and in the U.S. District Courts in the City of San\nJose, California.\nUnderstood and agreed:\nFor InterTrust Technologies Corporation\nSony Corporation of America\n/s/ MARK R. SCADINA\n5/16/02\n/s/ ELIZABETH COPPINGER\n5/16/02\nBy: (Signature)\nDate\nBy: (Signature)\nDate\nMARK R. SCADINA\nVPQ\nELIZABETH COPPINGER\nPrinted Name and Title\nGen Counsel\nPrinted Name and Title\nPage4of4	EX-99.(D)(3)(A) 14 dex99d3a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(A)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of May 16, 2002 (the “Effective Date”) by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n(“InterTrust”) and Sony Corporation of America, a New York corporation, with a place of business at 550 Madison Avenue, New York, New York\n10022 (“Company”).\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential (“Confidential Information™); provided that information disclosed by the disclosing party (“Discloser”) will be\nconsidered Confidential Information by the receiving party (“Recipient”), only if such information is conspicuously marked as “Confidential”\nif communicated in writing, or if communicated orally, identified as “Confidential” at time of disclosure. If the Disclosure fails to mark or\nidentify disclosed Confidential Information as “Confidential”, the Recipient shall be responsible for protecting such disclosures in accordance\nwith this Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as “Confidential” and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty’s respective business, strategies, technologies, intellectual property, and related information.\n2.  NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use reasonable care, but is no event less than the same degree of care that it uses to protect its own confidential and\nproprietary information of similar importance to prevent the unauthorized use, disclosure, publication or dissemination of Confidential\nInformation. Company may disclose the Confidential Information to any direct or indirect parent, majority-owned subsidiary or Affiliate, and\ntheir agents and professional advisors, provided that such parry agrees to be bound by this Agreement to the same extent as Company is bound\nand Company agrees to be responsible for any breach by these\nPage 1 of 4\nentities, agents and advisors. Affiliate shall mean any entity with more than 50% of its equity owned or controlled directly or indirectly by\nSony Corporation. The purpose of disclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to\nevaluate and comment upon certain Confidential Information so as to enable the enable the Participant to evaluate a potential business\nrelationship or strategic transaction between Recipient and Discloser (the “Purpose”). Recipient agrees not to use Confidential Information\notherwise for its own or any third party’s benefit for any purpose whatsoever, other than the Purpose, without the prior written approval of an\nauthorized representative of Discloser in each instance. Recipient may disclose Confidential Information if required by any judicial or\ngovernmental request, requirement or order; provided that Recipient will take reasonable steps to notify Discloser of such request or order and\nprovides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) In consideration of being finished Confidential Information, each party agrees that, without the prior written consent of the other party, for a\nperiod of one (1) year from the date of this Agreement, neither party nor any of their affiliates (including any person or entity directly or\nindirectly, through one or more intermediaries, controlling a party or controlled by a party or under common control with a party) nor any\nrepresentative will (i) acquire or agree, offer, seek or propose to acquire, ownership (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act of 1934, as amended (the “Exchange Act”) of the assets or business or more than one (1%)\npercent of the outstanding securities issued by the other party or any of its subsidiaries, or any rights or options to acquire such ownership\n(including from a third party), unless such an action is taken in response to a third party that has publicly offered (within the meaning of the\nfederal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such party shall in\nno way assist, advise, encourage or act in concert with such third party; (ii) make, or in any way participate in, any “solicitation” of “proxies”\n(as such terms are defined under Regulation 14A of the Exchange. Act) to vote or seek to advise or influence in any matter whatsoever any\nperson or entity with respect to the voting securities of the other party or any to its subsidiaries; (iii) form, join or in any way participate in a\n“group” (within the meaning of Section 13 (d)(3) of the Exchange Act) with respect to any voting securities of the other party or any of its\nsubsidiaries; (iv) arrange any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable\nfor any voting securities or assets of the other parry or any of its subsidiaries; or (v) otherwise act, whether alone or in concert with others, to\nseek to propose to the other party or any of its shareholders any merger, business combination, restructuring, recapitalization or similar\ntransaction to or with the other party or any of its subsidiaries (unless made in response to a third party that has publicly offered (within the\nmeaning of the federal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such\nparty shall in no way assist, advise, encourage or act in concert with such third party), in each case unless an until specifically invited by the\nother party or a designated representative.\n¢) Recipient agrees that without the Discloser’s prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has\nPage 2 of 4\nreceived Confidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient\nand the Discloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel\nthat such disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange\nrules, and the recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\nOWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\nTERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient’s duty to protect\nDiscloser’s Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\nINDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser’s information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.\nNO WARRANTY. Discloses warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information\nis provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\nRETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser’s written request, provided, however, that (1) Recipient shall destroy such information if and to the extent it has\nbeen incorporated. with Confidential Information of Recipient, and (2) Recipient may retain one copy thereof in the confidential, restricted\naccess files of its Law Department for use only in the event a dispute arises between the parties and only in connection with that dispute.\nNO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\nENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be\nPage 3 of 4\namended except by the written agreement signed by authorized representatives of both parties. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of law relating to conflict of laws. The parties to this Agreement hereby consent to jurisdiction and venue in the Courts of the State of California and in the U.S. District Courts in the City of San Jose, California.\nUnderstood and agreed:\nFor InterTrust Technologies Corporation\n/s/  MARK R. SCADINA 5/16/02\nBy: (Signature) Date\nMARK R. SCADINA VPQ\nPrinted Name and Title Gen Counsel\nPage 4 of 4\nSony Corporation of America\n/s/  ELIZABETH COPPINGER 5/16/02\nBy: (Signature) Date\nELIZABETH COPPINGER\nPrinted Name and Title	EX-99.(D)(3)(A) 14 dex99d3a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(A)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the "Agreement") is entered into and is effective as of May. 16, 2002 (the "Effective Date") by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n("InterTrust") and Sony Corporation of America, a New York corporation, with a place of business at 550 Madison Avenue, New York, New York\n10022 ("Company.").\nWHEREAS, the parties may disclose to each other certain confidential information defined below and nterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1.\nDEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential ("Confidential Information"); provided that information disclosed by the disclosing party ("Discloser") will be\nconsidered Confidential Information by the receiving party ("Recipient"), only if such information is conspicuously marked as "Confidential"\nif communicated in writing, or if communicated orally, identified as "Confidential" at time of disclosure. If the Disclosure fails to mark or\nidentify disclosed Confidential Information as "Confidential", the Recipient shall be responsible for protecting such disclosures in accordance\nwith\nthis Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as "Confidential" and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a)\nis\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty's respective business, strategies, technologies, intellectual property, and related information.\n2.\nNON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use reasonable care, but is no event less than the same degree of care that it uses to protect its own confidential and\nproprietary information of similar importance to prevent the unauthorized use, disclosure, publication or dissemination of Confidential\nInformation. Company may disclose the Confidential Information to any direct or indirect parent, majority-owned subsidiary or Affiliate, and\ntheir agents and professional advisors, provided that such parry agrees to be bound by this Agreement to the same extent as Company is bound\nand Company agrees to be responsible for any breach by these\nPage 1 of 4\nentities, agents and advisors. Affiliate shall mean any entity with more than 50% of its equity owned or controlled directly or indirectly by\nSony Corporation. The purpose of disclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to\nevaluate and comment upon certain Confidential Information so as to enable the enable the Participant to evaluate a potential business\nrelationship or strategic transaction between Recipient and Discloser (the "Purpose"). Recipient agrees not to use Confidential Information\notherwise for its own or any third party's benefit for any purpose whatsoever, other than the Purpose, without the prior written approval of an\nauthorized representative of Discloser in each instance. Recipient may disclose Confidential Information if required by any judicial or\ngovernmental request, requirement or order; provided that Recipient will take reasonable steps to notify Discloser of such request or order and\nprovides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) In consideration of being finished Confidential Information, each party agrees that, without the prior written consent of the other party, for a\nperiod of one (1) year from the date of this Agreement, neither party nor any of their affiliates (including any person or entity directly or\nindirectly, through one or more intermediaries, controlling a party or controlled by a party or under common control with a party) nor any\nrepresentative will (i) acquire or agree, offer, seek or propose to acquire, ownership (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act of 1934, as amended (the "Exchange Act") of the assets or business or more than one (1%)\npercent of the outstanding securities issued by the other party or any of its subsidiaries, or any rights or options to acquire such ownership\n(including from a third party), unless such an action is taken in response to a third party that has publicly offered (within the meaning of the\nfederal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such party shall\nin\nno way assist, advise, encourage or act in concert with such third party; (ii) make, or in any way participate in, any "'solicitation" of "proxies"\n(as such terms are defined under Regulation 14A of the Exchange. Act) to vote or seek to advise or influence in any matter whatsoever any\nperson or entity with respect to the voting securities of the other party or any to its subsidiaries; (iii) form, join or in any way participate in a\n"group" (within the meaning of Section 13 (d)(3) of the Exchange Act) with respect to any voting securities of the other party or any of its\nsubsidiaries; (iv) arrange any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable\nfor any voting securities or assets of the other parry or any of its subsidiaries; or (v) otherwise act, whether alone or in concert with others, to\nseek to propose to the other party or any of its shareholders any merger, business combination, restructuring, recapitalization or similar\ntransaction to or with the other party or any of its subsidiaries (unless made in response to a third party that has publicly offered (within the\nmeaning of the federal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such\nparty shall in no way assist, advise, encourage or act in concert with such third party), in each case unless an until specifically invited by the\nother party or a designated representative.\nc) Recipient agrees that without the Discloser's prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has\nPage 2 of 4\nreceived Confidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient\nand the Discloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel\nthat such disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange\nrules, and the recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\n3.\nOWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\n4.\nTERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient's duty to protect\nDiscloser's Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\n5.\nINDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser's information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser's Confidential Information.\n6.\nNO WARRANTY. Discloses warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information\nis provided "AS IS" and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\n7.\nRETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser's written request, provided, however, that (1) Recipient shall destroy such information if and to the extent it has\nbeen incorporated. with Confidential Information of Recipient, and (2) Recipient may retain one copy thereof in the confidential, restricted\naccess files of its Law Department for use only in the event a dispute arises between the parties and only in connection with that dispute.\n8.\nNO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\n9.\nENTIRE\nAGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be\nPage 3 of 4\namended except by the written agreement signed by authorized representatives of both parties. This Agreement will be governed by and\nconstrued in accordance with the laws of the State of California, excluding that body of law relating to conflict of laws. The parties to this\nAgreement hereby consent to jurisdiction and venue in the Courts of the State of California and in the U.S. District Courts in the City of San\nJose, California.\nUnderstood and agreed:\nFor InterTrust Technologies Corporation\nSony Corporation of America\n/s/ MARK R. SCADINA\n5/16/02\n/s/ ELIZABETH COPPINGER\n5/16/02\nBy:\n(Signature)\nDate\nBy: (Signature)\nDate\nMARK R. SCADINA\nVPQ\nELIZABETH COPPINGER\nPrinted Name and Title\nGen Counsel\nPrinted Name and Title\nPage 4 of 4	EX-99.(D)(3)(A) 14 dex99d3a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(A)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of May 16, 2002 (the “Effective Date”) by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n(“InterTrust”) and Sony Corporation of America, a New York corporation, with a place of business at 550 Madison Avenue, New York, New York\n10022 (“Company”).\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential (“Confidential Information”); provided that information disclosed by the disclosing party (“Discloser”) will be\nconsidered Confidential Information by the receiving party (“Recipient”), only if such information is conspicuously marked as “Confidential”\nif communicated in writing, or if communicated orally, identified as “Confidential” at time of disclosure. If the Disclosure fails to mark or\nidentify disclosed Confidential Information as “Confidential”, the Recipient shall be responsible for protecting such disclosures in accordance\nwith this Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as “Confidential” and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty’s respective business, strategies, technologies, intellectual property, and related information.\n2. NON -DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use reasonable care, but is no event less than the same degree of care that it uses to protect its own confidential and\nproprietary information of similar importance to prevent the unauthorized use, disclosure, publication or dissemination of Confidential\nInformation. Company may disclose the Confidential Information to any direct or indirect parent, majority-owned subsidiary or Affiliate, and\ntheir agents and professional advisors, provided that such parry agrees to be bound by this Agreement to the same extent as Company is bound\nand Company agrees to be responsible for any breach by these\nPage1of4\nentities, agents and advisors. Affiliate shall mean any entity with more than 50% of its equity owned or controlled directly or indirectly by\nSony Corporation. The purpose of disclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to\nevaluate and comment upon certain Confidential Information so as to enable the enable the Participant to evaluate a potential business\nrelationship or strategic transaction between Recipient and Discloser (the “Purpose”). Recipient agrees not to use Confidential Information\notherwise for its own or any third party’s benefit for any purpose whatsoever, other than the Purpose, without the prior written approval of an\nauthorized representative of Discloser in each instance. Recipient may disclose Confidential Information if required by any judicial or\ngovernmental request, requirement or order; provided that Recipient will take reasonable steps to notify Discloser of such request or order and\nprovides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) In consideration of being finished Confidential Information, each party agrees that, without the prior written consent of the other party, for a\nperiod of one (1) year from the date of this Agreement, neither party nor any of their affiliates (including any person or entity directly or\nindirectly, through one or more intermediaries, controlling a party or controlled by a party or under common control with a party) nor any\nrepresentative will (i) acquire or agree, offer, seek or propose to acquire, ownership (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act of 1934, as amended (the “Exchange Act”) of the assets or business or more than one (1%)\npercent of the outstanding securities issued by the other party or any of its subsidiaries, or any rights or options to acquire such ownership\n(including from a third party), unless such an action is taken in response to a third party that has publicly offered (within the meaning of the\nfederal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such party shall in\nno way assist, advise, encourage or act in concert with such third party; (ii) make, or in any way participate in, any “solicitation” of “proxies”\n(as such terms are defined under Regulation 14A of the Exchange. Act) to vote or seek to advise or influence in any matter whatsoever any\nperson or entity with respect to the voting securities of the other party or any to its subsidiaries; (iii) form, join or in any way participate in a\n“group” (within the meaning of Section 13 (d)(3) of the Exchange Act) with respect to any voting securities of the other party or any of its\nsubsidiaries; (iv) arrange any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable\nfor any voting securities or assets of the other parry or any of its subsidiaries; or (v) otherwise act, whether alone or in concert with others, to\nseek to propose to the other party or any of its shareholders any merger, business combination, restructuring, recapitalization or similar\ntransaction to or with the other party or any of its subsidiaries (unless made in response to a third party that has publicly offered (within the\nmeaning of the federal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such\nparty shall in no way assist, advise, encourage or act in concert with such third party), in each case unless an until specifically invited by the\nother party or a designated representative.\nc) Recipient agrees that without the Discloser’s prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has\nPage2of4\nreceived Confidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient\nand the Discloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel\nthat such disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange\nrules, and the recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\n3. OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\n4. TERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient’s duty to protect\nDiscloser’s Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\n5. INDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser’s information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.\n6. NO WARRANTY. Discloses warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information\nis provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\n7. RETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser’s written request, provided, however, that (1) Recipient shall destroy such information if and to the extent it has\nbeen incorporated. with Confidential Information of Recipient, and (2) Recipient may retain one copy thereof in the confidential, restricted\naccess files of its Law Department for use only in the event a dispute arises between the parties and only in connection with that dispute.\n8. NO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\n9. ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be\nPage3of4\namended except by the written agreement signed by authorized representatives of both parties. This Agreement will be governed by and\nconstrued in accordance with the laws of the State of California, excluding that body of law relating to conflict of laws. The parties to this\nAgreement hereby consent to jurisdiction and venue in the Courts of the State of California and in the U.S. District Courts in the City of San\nJose, California.\nUnderstood and agreed:\nFor InterTrust Technologies Corporation\nSony Corporation of America\n/s/ MARK R. SCADINA\n5/16/02\n/s/ ELIZABETH COPPINGER\n5/16/02\nBy: (Signature)\nDate\nBy: (Signature)\nDate\nMARK R. SCADINA\nVPQ\nELIZABETH COPPINGER\nPrinted Name and Title\nGen Counsel\nPrinted Name and Title\nPage4of4
c4864a04768c67b61084ef76ef855472.pdf	effective_date jurisdiction party term	EX-99.(D)(6) 9 d290608dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of August 11, 2011 (the “Effective Date”), between\nAMGEN INC., a Delaware corporation (together with its Affiliates (as defined in section 14), “Amgen”), and MICROMET, INC., a Delaware\ncorporation (together with its Affiliates, “Micromet”, and each of Micromet and Amgen individually or jointly referred to as “Party” and “Parties”)\nIn order to facilitate the consideration and negotiation of a possible business combination involving Amgen and Micromet (the “Potential\nTransaction”), Amgen has requested access to certain non-public information regarding Micromet. This Agreement sets forth Amgen’s obligations\nregarding the use and disclosure of such information and regarding various related matters.\nEach of the parties, intending to be legally bound, acknowledges and agrees as follows:\n1. Limitations on Use and Disclosure of Confidential Information.\n(a) Subject to section 4 below, neither Amgen nor any of Amgen’s Representatives (as defined in section 13 below) will, at any time,\ndirectly or indirectly:\n(i) make use of any Confidential Information (as defined in section 12 below), except for the specific purpose of considering,\nevaluating and negotiating a Potential Transaction; or\n(ii) disclose any Confidential Information to any other Person (as defined in section 13 below).\n(b) Without the prior written consent of Micromet, Amgen will not disclose any of the Confidential Information to any Persons who are\nthe members representing Amgen on the “Joint Project Team” as defined in and established pursuant to that certain Collaboration and License\nAgreement, dated as of July 11, 2011, by and between Micromet, Inc., Micromet AG and Amgen Inc. (the “Collaboration Agreement”) set forth on\nSchedule I hereto under the header “Excluded Project Team Members” ( the “Excluded Representatives”) and Amgen will not directly engage such\nExcluded Representatives in the process of evaluating or negotiating a Potential Transaction; provided, however, that if, after the date hereof and\nduring period of the Term that the Parties continue to be in discussions regarding a Potential Transaction, Amgen notifies Micromet in writing\npursuant to the Collaboration Agreement that it has added Persons to Joint Project Team, Schedule I will be revised to include those Persons as\nExcluded Representatives, with the restrictions applicable to Excluded Representatives effective in respect of such Person as of the date identified\nopposite such Person’s name on Schedule I (which will be the date notice of the addition of such Person to the Joint Project Team was delivered\npursuant to the Collaboration Agreement); and provided, further, that notwithstanding any other provision of this section 1(b), the Persons on\nAmgen’s project team established under the Collaboration Agreement who are listed on Schedule I under the header “Participating Project Team\nMembers” shall not be Excluded Representatives.\n(c) Amgen will be liable and responsible for any breach of this Agreement by any of its Representatives and for any actions taken by\nsuch Representatives on behalf of or for the direct benefit of Amgen that would have constituted a breach under this Agreement had such\nRepresentative been a party hereto. Amgen will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making\nany unauthorized use or disclosure of any Confidential Information; provided, that in no event will Amgen be required to make any undertaking with\nrespect to its Representatives beyond that which it would undertake to protect the confidentiality of its own confidential information of a similar\nnature in the ordinary course of its business, but in no case shall Amgen use less than reasonable care in the protection of such Confidential\nInformation.\n2. Contacts between Amgen and Micromet.\n(a) During the Standstill Period, unless otherwise authorized by Micromet, Inc.’s Chief Executive Officer (the “CEO”) or the chairman\nof Micromet, Inc.’s board of directors (the “Chairman”), Amgen and any Amgen Representatives will not contact or otherwise communicate\ndirectly with any of Micromet’s officers, directors or employees on matters relating to the Potential Transaction except (i) through the CEO or the\nChairman, or (ii) at meetings and telephone calls attended by the CEO or the Chairman.\n(b) Any request by Amgen or any of its Representatives to review Confidential Information must be directed to the CEO, or such other\nPerson as the CEO may designate from time to time.\n3. No Representations by Micromet. Neither Micromet nor any of Micromet’s Representatives will be under any obligation to make any\nConfidential Information available to Amgen or any of Amgen’s Representatives or to supplement or update any Confidential Information\npreviously furnished. Neither Micromet nor any of its Representatives has made or is making any representation or warranty, express or implied, as\nto the accuracy or completeness of any Confidential Information, and neither Micromet nor any of its Representatives will have any liability to\nAmgen or to any of Amgen’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a Potential Transaction between Amgen and Micromet and is validly executed on behalf of Amgen and Micromet\n(a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) Amgen or its Representatives may disclose Confidential Information if and to the extent that Micromet consents in writing to\nAmgen’s or its Representative’s disclosure thereof;\n(ii) Subject to section 1(b) of this Agreement, Amgen may disclose Confidential Information to any Representative of Amgen,\nbut only to the extent such\n2\nRepresentative (A) needs to know such Confidential Information for the purpose of helping Amgen evaluate or negotiate a Potential Transaction, and\n(B) is bound by obligations of confidentiality at least as restrictive as the provisions hereof; and\n(iii) subject to section 4(b) below, Amgen may disclose Confidential Information (1) to the extent required by applicable law or\ngovernmental regulation (including without limitation any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Amgen’s securities are listed or quoted), by valid legal process or in response to a demand by a\nregulatory agency, or (2) to establish Amgen’s compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder\nin the defense of a claim by Micromet that Amgen has breached this Agreement (including through its Representatives).\n(b) If Micromet delivers to Amgen a written notice stating that specifically identified documents or materials that are Confidential\nInformation may be disclosed only to specified Representatives of Amgen prior to the delivery of such to Amgen or its Representatives, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, Amgen will not thereafter disclose or permit the disclosure of any such\nConfidential Information to any other Representative of Amgen unless otherwise authorized by Micromet.\n(c) If Amgen or any of Amgen’s Representatives is required by law or governmental regulation (including without limitation any rule,\nregulation or policy statement of any national securities exchange, market or automated quotation system on which any of Amgen’s securities are\nlisted or quoted) or by subpoena or other valid legal process or in response to a demand by a regulatory agency to disclose any Confidential\nInformation to any Person, then Amgen will promptly provide Micromet with written notice of the requirement so that Micromet may seek a\nprotective order or other appropriate remedy. Amgen will use commercially reasonable efforts (i) to cooperate fully with Micromet and Micromet’s\nRepresentatives in any attempt by Micromet to obtain any such protective order or other remedy and (ii) cause its Representatives to do the same. If\nMicromet elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that\nAmgen disclose Confidential Information, and if Amgen furnishes Micromet with a written opinion of reputable legal counsel confirming that the\ndisclosure of such Confidential Information is legally required, then Amgen may disclose such Confidential Information to the extent legally\nrequired; provided, however, that Amgen will use its commercially reasonable efforts to ensure that such Confidential Information is treated\nconfidentially by each Person to whom it is disclosed and will use its commercially reasonable efforts to cause its Representatives to do the same;\nprovided, that in no event will Amgen or its Representatives be required to make any undertaking beyond that which it would undertake to protect\nthe confidentiality of its own confidential information of a similar nature in the ordinary course of its business, but in no case shall Amgen use less\nthan reasonable care in the protection of such Confidential Information.\n5. Return of Confidential Information. If Amgen determines that it does not wish to proceed with the possible negotiated transaction with\nMicromet, Amgen will promptly advise Micromet in writing of that decision. Upon Micromet’s written request, Amgen and Amgen’s\nRepresentatives will, promptly deliver to Micromet any Confidential Information (and all copies\n3\nthereof) obtained or possessed by Amgen or any of Amgen’s Representatives; provided, however, that, in lieu of delivering to Micromet any written\nmaterials Amgen and its Representatives may destroy such written materials and deliver to Micromet a certificate confirming their destruction.\nNotwithstanding the foregoing, Amgen’s Representatives that are law firms may retain copies of the Confidential Information solely for archival\npurposes and to establish Amgen’s compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder and Amgen’s\nRepresentatives that are lenders, financial advisors and/or accounting firms may retain, solely for compliance purposes, copies of the Confidential\nInformation in accordance with policies and procedures implemented by such persons in order to comply with law, regulation or professional\nstandards. Notwithstanding any other provision of this Agreement to the contrary, neither Amgen nor its Representatives will be required to destroy\nany electronic files created during any automatic backup that are subsequently stored securely by Amgen and/or its Representatives, provided that\nAmgen and its Representatives will not access with the intent to use any such electronic files following the date such electronic files would\notherwise be required to be redelivered or destroyed. Notwithstanding the delivery to Micromet (or the destruction by Amgen) of Confidential\nInformation pursuant to this section 5, Amgen and its Representatives will continue to be bound by their confidentiality obligations and other\nobligations under this Agreement.\n6. Limitation on Hiring and Soliciting Employees. During the twelve month period commencing on the Effective Date, none of Amgen’s\nRepresentatives who have received Confidential Information under this Agreement will solicit or cause to be solicited any Covered Person (as\ndefined in this section 6 below) to terminate such Covered Person’s employment relationship with Micromet in order to become an employee,\nconsultant, or independent contractor, to or for Amgen. This section 6 will not prevent Amgen from placing causing to be placed any general\nadvertisement or similar notice of open positions in the ordinary course of business that is not targeted specifically at employees of Micromet or\nengaging employee search firms that are not specifically instructed by Amgen to target Covered Persons. For purposes of this Agreement, “Covered\nPerson” will mean any Person who is an officer or employee of Micromet with a title of Director or higher as of the date of this Agreement or who\nbecomes an officer or employee with a title of Director or higher during the Term and before the termination of discussions regarding a Potential\nTransaction.\n7. Standstill Provisions.\n(a) Subject to section 7(c), , without the prior written request or consent of Micromet, during the period commencing on the Effective\nDate and terminating on the earlier to occur of (i) eighteen months from that date or (ii) the date of any Terminating Event (defined below) (such\nperiod, the “Standstill Period”), Amgen will not directly or indirectly:\n(i) make, effect, initiate, cause or participate in (1) any acquisition of beneficial ownership of any securities of Micromet or any\nsecurities of any subsidiary of Micromet, (2) any acquisition of any material assets of Micromet (other than in connection with the Collaboration\nAgreement), (3) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Micromet or any subsidiary of Micromet, or involving any securities or assets of Micromet or any securities or\nassets of any subsidiary of Micromet, or (4) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents with respect to any securities of Micromet;\n4\n(ii) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Micromet;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nMicromet;\n(iv) take any action that requires Micromet to make a public announcement regarding any of the types of matters set forth in\nclause “(i)” of this sentence;\n(v) enter into any discussions, negotiations, arrangement or agreement with any other Person (other than its Affiliates or\nMicromet) relating to any of the foregoing;\n(vi) publicly request or publicly propose that Micromet or any of Micromet’s Representatives amend, waive or consider the\namendment or waiver of any provision set forth in this section 7(a); or\n(vii) agree to take, or encourage or propose the taking of, any action referred to in this section 7(a);\n(b) Notwithstanding any other provision of this Agreement:\n(i) nothing in this Agreement will prevent Amgen or its Representatives from communicating with the CEO or the Chairman to\nmake a proposal for or to negotiate with Micromet in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in section 7(a)(i) involving Micromet and Amgen so long as such communication is made confidentially;\n(ii) nothing in this Agreement will prohibit Amgen from acquiring any class of securities of Micromet (including the voting\nrights thereof) by or through (1) a diversified mutual or pension fund managed by an independent investment adviser or pension plan established for\nthe benefit of any of Amgen’s employees or (2) any bona fide benefit plan maintained for the benefit of employees of Amgen (and, in the case of\nclauses (1) and (2) of this sentence, any such securities will not be considered beneficially owned by Amgen for purposes of section 7(a) above);\nprovided that, in the case of clauses (1) and (2), (A) such acquisitions are ordinary course trading activities in compliance with applicable securities\nlaws and Amgen will not in any way request or direct that the trustee or other administrator of such fund or plan purchase or acquire any equity\nsecurities, (B) such acquisitions are for passive investment not made with the purpose, or the effect, of either influencing the control of Micromet or\neffecting or preventing any control transaction involving Micromet and (C) such acquisitions, when combined with all other securities of the\nMicromet owned by Amgen, its affiliates and such funds and plans, will not represent 5% or more of the securities of Micromet; provided, further,\nthat, any acquisition and/or ownership of any class of securities of Micromet that results from actions by persons other than Amgen and its affiliates\n(including reverse stock splits, Micromet stock repurchases, etc.) will not be a violation of this paragraph;\n5\n(iii) nothing in this Agreement will prohibit Amgen from acquiring another biotechnology or pharmaceutical company that\nbeneficially owns any securities of Micromet, provided that such biotechnology or pharmaceutical company will have acquired securities of\nMicromet other than in contemplation of Amgen acquiring such biotechnology or pharmaceutical company; and\n(iv) nothing in this Agreement will prohibit Amgen and its Representatives from initiating confidential discussions with, or\nsubmitting confidential proposals to, Micromet related to any commercial transaction between the Company and Micromet in the ordinary course\nbusiness (such as licensing, collaboration, research, development, marketing or comparable transactions).\n(c) For purposes of this Agreement, a “Terminating Event” will mean the occurrence of any of the following: (i) any Person\ncommences a tender or exchange offer for the majority of the voting power of Micromet; (ii) any Person or group that is or includes a company that\nis in the business of developing, marketing, selling or manufacturing human therapeutics acquires or proposes to acquire (and such proposal becomes\npublic) more than fifteen percent (15%) of Micromet’s capital stock, as long as Amgen is not and does not become a member of such group; or\n(iii) Micromet or a third Person publicly announces that Micromet has entered into, or Micromet publicly proposes to enter into, a definitive\nagreement with one or more unaffiliated third Persons providing for the acquisition by such Person or group of more than 25% of the voting\nsecurities of Micromet or all or substantially all the assets of Micromet (other than in connection with an internal restructuring transaction involving\nonly Micromet, one or more of its subsidiaries and/or any holding company formed for the purpose of such transaction wholly owned by persons\nwho were stockholders of Micromet immediately prior to such transaction). The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n8. No Obligation to Pursue Transaction. Unless Amgen and Micromet enter into a Definitive Agreement, no agreement providing for a\ntransaction involving Micromet will be deemed to exist between Amgen and Micromet, and neither Party will be under any obligation to negotiate or\nenter into any such agreement or transaction with Amgen. Micromet reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving Micromet, and to modify any procedures relating to any such process\nwithout giving notice to Amgen or any other Person; (b) to reject any proposal made by Amgen or any of Amgen’s Representatives with respect to a\ntransaction involving Micromet; and (c) to terminate discussions and negotiations with Amgen at any time. Amgen recognizes that, except as\nexpressly provided in any Definitive Agreement between Amgen and Micromet: Micromet and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party.\n9. No Waiver. No failure or delay by any Party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the\n6\nexercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of\na written instrument that is validly executed on behalf of each Party and that refers specifically to the particular provision or provisions being waived\nor amended.\n10. Remedies. Amgen acknowledges that money damages may not be a sufficient remedy for any breach of this Agreement by Amgen or any\nof Amgen’s Representatives and that Micromet may suffer irreparable harm as a result of any such breach. Accordingly, Micromet will also be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\nThe equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in\naddition to all other remedies available at law or in equity to Micromet.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon each Party and its assigns.\nThis Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of\nconflicts of laws). Each Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and\nfederal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agree\nthat service of any process, summons, notice or document by U.S . registered mail to the address set forth at the end of this Agreement will be\neffective service of process for any action, suit or proceeding brought against such Party or any of such Party’s Representatives; (c) irrevocably and\nunconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state\nor federal court located in the State of Delaware; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and\nunconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state\nor federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information.\n(a) For purposes of this Agreement, “Confidential Information” will be deemed to include:\n(i) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of Micromet or any predecessor entity (whether prepared by Micromet or by any\nother Person and whether or not in written form) that is or has been made available to Amgen or any Representative of Amgen by or on behalf of\nMicromet or any Representative of Micromet on or after the date hereof; and\n(ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for Amgen or any Representative of Amgen and that contains any information of the type referred to in section 11(a)(i)\n(or is based on, reflects or interprets such information in a manner in which such information can be reasonably and specifically derived).\n7\n(b) Notwithstanding the foregoing, for the purposes of this Agreement “Confidential Information” will not include:\n(i) any information disclosed by or behalf of Micromet in connection with the Collaboration Agreement, which information\nremains subject to the confidentiality obligations set forth in the Collaboration Agreement;\n(ii) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by Amgen or by any of Amgen’s Representatives;\n(iii) any information that was in Amgen’s or its Representatives’ possession prior to the time it was first made available to\nAmgen or any of Amgen’s Representatives by or on behalf of Micromet or any of Micromet’s Representatives, provided that the source of such\ninformation was not known by Amgen to be bound by any contractual or other obligation of confidentiality to Micromet or any other Person with\nrespect to any of such information;\n(iv) any information that is independently discovered or developed by Amgen or its Representatives without reference to or the\nuse of Confidential Information; or\n(v) any information that becomes available to Amgen on a non-confidential basis from a source other than Micromet or any of\nMicromet’s Representatives, provided that such source is not known by Amgen bound by any contractual or other obligation of confidentiality to\nMicromet with respect to any of such information.\n13. Confidentiality of Discussions.\nDuring the Standstill Period only, each Party agrees that it shall not disclose the following to any Person other than its Representatives who\n(a) need to know such Confidential Information for the purpose of helping it evaluate or negotiate a Potential Transaction and (b) are bound by\nobligations of confidentiality at least as restrictive as the provisions hereof: (i) the existence and terms of this Agreement, and the fact that\nConfidential Information has been made available to Amgen or any of its Representatives and (ii) the fact that discussions or negotiations are or may\nbe taking place between the Parties with respect to a Potential Transaction, and the proposed terms of any such transaction.\n14. Term.\nThis Agreement will become effective on the date of this Agreement and terminate on the date that is eighteen months from the Effective Date\n(the “Term”); provided, however, that (a) the obligations contained in this Agreement with respect to Confidential Information other than IP\nInformation and Collaboration Information (each as defined below) disclosed during the Term will survive any expiration or termination of this\nAgreement until the sixth anniversary of the termination date, at which time they shall terminate and (b) the obligations contained in this Agreement\nwith respect to IP Information (as defined below) disclosed during the Term shall survive any expiration or termination of this Agreement until the\ntenth anniversary of the\n8\ntermination date, at which time they shall terminate, and (c) the obligations contained in this Agreement with respect to Collaboration Information\n(as defined below) disclosed during the Term will survive any expiration or termination of the Agreement until the later to occur of (i) the date that is\nthe sixth anniversary of the Effective Date and (ii) the date that Micromet is no longer subject to any obligation of confidentiality existing as of the\nEffective Date in respect of such information under a Third Party Collaboration Agreement (as defined below), provided that Micromet has disclosed\nto Amgen all applicable provisions under any partnering or collaboration agreement with any third Person covering the Collaboration Information, at\nwhich time all obligations in respect of Collaboration Information shall terminate. “IP Information” shall mean shall mean any Confidential\nInformation that includes know how, trade secrets, unpublished patent applications, invention disclosures and prosecution histories, and technical\ndata. “Collaboration Information” shall mean any Confidential Information in respect of which Micromet has an obligation of confidentiality to a\nthird Person under any partnering or collaboration agreement between Micromet and such third Person as of the date hereof (each a “Third Party\nCollaboration Agreement”).\n15. Miscellaneous.\n(a) “Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under\ncommon control with a Party. For purposes of this definition only, “control” and, with correlative meanings, the terms “controlled by” and “under\ncommon control with” means (a) the possession, directly or indirectly, of the power to direct the management or policies of an entity, whether\nthrough the ownership of voting securities, contract rights, voting rights, corporate governance or otherwise, or (b) the ownership, directly or\nindirectly, of more than 50% of the voting securities or other ownership interest of an entity entitled to vote in the election of directors or similar\ngoverning body.\n(b) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) an\nAffiliate of such Party, or (ii) an officer, director, employee, partner, attorney, accountant, consultant, advisor, agent or representative of such Party or\nof any of such Party’s Affiliates; provided that Representatives shall not include Excluded Representatives.\n(c) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(d) The bold-faced captions appearing in this Agreement have been included only for convenience and will not affect or be taken into\naccount in the interpretation of this Agreement.\n(e) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n9\n(f) By making Confidential Information or other information available to Amgen or Amgen’s Representatives, Micromet is not, and will\nnot be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright,\ntrademark or other proprietary or intellectual property right.\n(g) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, arbitration or dispute, it is acknowledged and agreed that Amgen and Micromet have a commonality of interest with\nrespect to such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and will not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work\nproduct doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine will remain entitled to protection thereunder and will be entitled to\nprotection under the joint defense doctrine, and Amgen agrees to take all commercially reasonable measures necessary to preserve, to the fullest\nextent possible, the applicability of all such privileges or doctrines.\n(h) This Agreement constitutes the entire agreement between Amgen and Micromet regarding the subject matter hereof and supersedes\nany prior agreement between Amgen and Micromet regarding the subject matter hereof.\n[SIGNATURES ON NEXT PAGE]\n10\nThe Parties have caused this Agreement to be executed as of the Effective Date.\nAMGEN INC.\nMICROMET, INC.\nBy: /s/ David Piacquad\nBy: /s/ Jens Hennecke\nName: David Piacquad\nName: Jens Hennecke, Ph.D.\nTitle: Vice President, Strategy and\nTitle: Senior Vice President,\nCorporate Development\nBusiness Development\n11	EX-99.(D)(6) 9 d290608dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of August 11, 2011 (the “Effective Date”), between\nAMGEN INC., a Delaware corporation (together with its Affiliates (as defined in section 14), “Amgen”), and MICROMET, INC., a Delaware\ncorporation (together with its Affiliates, “Micromet”, and each of Micromet and Amgen individually or jointly referred to as “Party” and “Parties”)\nIn order to facilitate the consideration and negotiation of a possible business combination involving Amgen and Micromet (the “Potential\nTransaction”), Amgen has requested access to certain non-public information regarding Micromet. This Agreement sets forth Amgen’s obligations\nregarding the use and disclosure of such information and regarding various related matters.\nEach of the parties, intending to be legally bound, acknowledges and agrees as follows:\n1. Limitations on Use and Disclosure of Confidential Information.\n(a) Subject to section 4 below, neither Amgen nor any of Amgen’s Representatives (as defined in section 13 below) will, at any time,\ndirectly or indirectly:\n(i) make use of any Confidential Information (as defined in section 12 below), except for the specific purpose of considering,\nevaluating and negotiating a Potential Transaction; or\n(ii) disclose any Confidential Information to any other Person (as defined in section 13 below).\n(b) Without the prior written consent of Micromet, Amgen will not disclose any of the Confidential Information to any Persons who are\nthe members representing Amgen on the “Joint Project Team” as defined in and established pursuant to that certain Collaboration and License\nAgreement, dated as of July 11, 2011, by and between Micromet, Inc., Micromet AG and Amgen Inc. (the “Collaboration Agreement”) set forth on\nSchedule I hereto under the header “Excluded Project Team Members” ( the “Excluded Representatives”) and Amgen will not directly engage such\nExcluded Representatives in the process of evaluating or negotiating a Potential Transaction; provided, however, that if, after the date hereof and\nduring period of the Term that the Parties continue to be in discussions regarding a Potential Transaction, Amgen notifies Micromet in writing\npursuant to the Collaboration Agreement that it has added Persons to Joint Project Team, Schedule I will be revised to include those Persons as\nExcluded Representatives, with the restrictions applicable to Excluded Representatives effective in respect of such Person as of the date identified\nopposite such Person’s name on Schedule I (which will be the date notice of the addition of such Person to the Joint Project Team was delivered\npursuant to the Collaboration Agreement); and provided, further, that notwithstanding any other provision of this section 1(b), the Persons on\nAmgen’s project team established under the Collaboration Agreement who are listed on Schedule I under the header “Participating Project Team\nMembers” shall not be Excluded Representatives.\n(c) Amgen will be liable and responsible for any breach of this Agreement by any of its Representatives and for any actions taken by\nsuch Representatives on behalf of or for the direct benefit of Amgen that would have constituted a breach under this Agreement had such\nRepresentative been a party hereto. Amgen will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making\nany unauthorized use or disclosure of any Confidential Information; provided, that in no event will Amgen be required to make any undertaking with\nrespect to its Representatives beyond that which it would undertake to protect the confidentiality of its own confidential information of a similar\nnature in the ordinary course of its business, but in no case shall Amgen use less than reasonable care in the protection of such Confidential\nInformation.\n2. Contacts between Amgen and Micromet.\n(@) During the Standstill Period, unless otherwise authorized by Micromet, Inc.’s Chief Executive Officer (the “CEO”) or the chairman\nof Micromet, Inc.’s board of directors (the “Chairman”), Amgen and any Amgen Representatives will not contact or otherwise communicate\ndirectly with any of Micromet’s officers, directors or employees on matters relating to the Potential Transaction except (i) through the CEO or the\nChairman, or (ii) at meetings and telephone calls attended by the CEO or the Chairman.\n(b) Any request by Amgen or any of its Representatives to review Confidential Information must be directed to the CEO, or such other\nPerson as the CEO may designate from time to time.\n3. No Representations by Micromet. Neither Micromet nor any of Micromet’s Representatives will be under any obligation to make any\nConfidential Information available to Amgen or any of Amgen’s Representatives or to supplement or update any Confidential Information\npreviously furnished. Neither Micromet nor any of its Representatives has made or is making any representation or warranty, express or implied, as\nto the accuracy or completeness of any Confidential Information, and neither Micromet nor any of its Representatives will have any liability to\nAmgen or to any of Amgen’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a Potential Transaction between Amgen and Micromet and is validly executed on behalf of Amgen and Micromet\n(a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) Amgen or its Representatives may disclose Confidential Information if and to the extent that Micromet consents in writing to\nAmgen’s or its Representative’s disclosure thereof;\n(ii) Subject to section 1(b) of this Agreement, Amgen may disclose Confidential Information to any Representative of Amgen,\nbut only to the extent such\nRepresentative (A) needs to know such Confidential Information for the purpose of helping Amgen evaluate or negotiate a Potential Transaction, and\n(B) is bound by obligations of confidentiality at least as restrictive as the provisions hereof; and\n(iii) subject to section 4(b) below, Amgen may disclose Confidential Information (1) to the extent required by applicable law or\ngovernmental regulation (including without limitation any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Amgen’s securities are listed or quoted), by valid legal process or in response to a demand by a\nregulatory agency, or (2) to establish Amgen’s compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder\nin the defense of a claim by Micromet that Amgen has breached this Agreement (including through its Representatives).\n(b) If Micromet delivers to Amgen a written notice stating that specifically identified documents or materials that are Confidential\nInformation may be disclosed only to specified Representatives of Amgen prior to the delivery of such to Amgen or its Representatives, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, Amgen will not thereafter disclose or permit the disclosure of any such\nConfidential Information to any other Representative of Amgen unless otherwise authorized by Micromet.\n(c) If Amgen or any of Amgen’s Representatives is required by law or governmental regulation (including without limitation any rule,\nregulation or policy statement of any national securities exchange, market or automated quotation system on which any of Amgen’s securities are\nlisted or quoted) or by subpoena or other valid legal process or in response to a demand by a regulatory agency to disclose any Confidential\nInformation to any Person, then Amgen will promptly provide Micromet with written notice of the requirement so that Micromet may seek a\nprotective order or other appropriate remedy. Amgen will use commercially reasonable efforts (i) to cooperate fully with Micromet and Micromet’s\nRepresentatives in any attempt by Micromet to obtain any such protective order or other remedy and (ii) cause its Representatives to do the same. If\nMicromet elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that\nAmgen disclose Confidential Information, and if Amgen furnishes Micromet with a written opinion of reputable legal counsel confirming that the\ndisclosure of such Confidential Information is legally required, then Amgen may disclose such Confidential Information to the extent legally\nrequired; provided, however, that Amgen will use its commercially reasonable efforts to ensure that such Confidential Information is treated\nconfidentially by each Person to whom it is disclosed and will use its commercially reasonable efforts to cause its Representatives to do the same;\nprovided, that in no event will Amgen or its Representatives be required to make any undertaking beyond that which it would undertake to protect\nthe confidentiality of its own confidential information of a similar nature in the ordinary course of its business, but in no case shall Amgen use less\nthan reasonable care in the protection of such Confidential Information.\n5. Return of Confidential Information. If Amgen determines that it does not wish to proceed with the possible negotiated transaction with\nMicromet, Amgen will promptly advise Micromet in writing of that decision. Upon Micromet’s written request, Amgen and Amgen’s\nRepresentatives will, promptly deliver to Micromet any Confidential Information (and all copies\n3\nthereof) obtained or possessed by Amgen or any of Amgen’s Representatives; provided, however, that, in lieu of delivering to Micromet any written\nmaterials Amgen and its Representatives may destroy such written materials and deliver to Micromet a certificate confirming their destruction.\nNotwithstanding the foregoing, Amgen’s Representatives that are law firms may retain copies of the Confidential Information solely for archival\npurposes and to establish Amgen’s compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder and Amgen’s\nRepresentatives that are lenders, financial advisors and/or accounting firms may retain, solely for compliance purposes, copies of the Confidential\nInformation in accordance with policies and procedures implemented by such persons in order to comply with law, regulation or professional\nstandards. Notwithstanding any other provision of this Agreement to the contrary, neither Amgen nor its Representatives will be required to destroy\nany electronic files created during any automatic backup that are subsequently stored securely by Amgen and/or its Representatives, provided that\nAmgen and its Representatives will not access with the intent to use any such electronic files following the date such electronic files would\notherwise be required to be redelivered or destroyed. Notwithstanding the delivery to Micromet (or the destruction by Amgen) of Confidential\nInformation pursuant to this section 5, Amgen and its Representatives will continue to be bound by their confidentiality obligations and other\nobligations under this Agreement.\n6. Limitation on Hiring and Soliciting Employees. During the twelve month period commencing on the Effective Date, none of Amgen’s\nRepresentatives who have received Confidential Information under this Agreement will solicit or cause to be solicited any Covered Person (as\ndefined in this section 6 below) to terminate such Covered Person’s employment relationship with Micromet in order to become an employee,\nconsultant, or independent contractor, to or for Amgen. This section 6 will not prevent Amgen from placing causing to be placed any general\nadvertisement or similar notice of open positions in the ordinary course of business that is not targeted specifically at employees of Micromet or\nengaging employee search firms that are not specifically instructed by Amgen to target Covered Persons. For purposes of this Agreement, “Covered\nPerson” will mean any Person who is an officer or employee of Micromet with a title of Director or higher as of the date of this Agreement or who\nbecomes an officer or employee with a title of Director or higher during the Term and before the termination of discussions regarding a Potential\nTransaction.\n7. Standstill Provisions.\n(a) Subject to section 7(c), , without the prior written request or consent of Micromet, during the period commencing on the Effective\nDate and terminating on the earlier to occur of (i) eighteen months from that date or (ii) the date of any Terminating Event (defined below) (such\nperiod, the “Standstill Period”), Amgen will not directly or indirectly:\n(i) make, effect, initiate, cause or participate in (1) any acquisition of beneficial ownership of any securities of Micromet or any\nsecurities of any subsidiary of Micromet, (2) any acquisition of any material assets of Micromet (other than in connection with the Collaboration\nAgreement), (3) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Micromet or any subsidiary of Micromet, or involving any securities or assets of Micromet or any securities or\nassets of any subsidiary of Micromet, or (4) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents with respect to any securities of Micromet;\n(ii) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Micromet;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nMicromet;\n(iv) take any action that requires Micromet to make a public announcement regarding any of the types of matters set forth in\nclause “(i)” of this sentence;\n(v) enter into any discussions, negotiations, arrangement or agreement with any other Person (other than its Affiliates or\nMicromet) relating to any of the foregoing;\n(vi) publicly request or publicly propose that Micromet or any of Micromet’s Representatives amend, waive or consider the\namendment or waiver of any provision set forth in this section 7(a); or\n(vii) agree to take, or encourage or propose the taking of, any action referred to in this section 7(a);\n(b) Notwithstanding any other provision of this Agreement:\n(i) nothing in this Agreement will prevent Amgen or its Representatives from communicating with the CEO or the Chairman to\nmake a proposal for or to negotiate with Micromet in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in section 7(a)(i) involving Micromet and Amgen so long as such communication is made confidentially;\n(ii) nothing in this Agreement will prohibit Amgen from acquiring any class of securities of Micromet (including the voting\nrights thereof) by or through (1) a diversified mutual or pension fund managed by an independent investment adviser or pension plan established for\nthe benefit of any of Amgen’s employees or (2) any bona fide benefit plan maintained for the benefit of employees of Amgen (and, in the case of\nclauses (1) and (2) of this sentence, any such securities will not be considered beneficially owned by Amgen for purposes of section 7(a) above);\nprovided that, in the case of clauses (1) and (2), (A) such acquisitions are ordinary course trading activities in compliance with applicable securities\nlaws and Amgen will not in any way request or direct that the trustee or other administrator of such fund or plan purchase or acquire any equity\nsecurities, (B) such acquisitions are for passive investment not made with the purpose, or the effect, of either influencing the control of Micromet or\neffecting or preventing any control transaction involving Micromet and (C) such acquisitions, when combined with all other securities of the\nMicromet owned by Amgen, its affiliates and such funds and plans, will not represent 5% or more of the securities of Micromet; provided, further,\nthat, any acquisition and/or ownership of any class of securities of Micromet that results from actions by persons other than Amgen and its affiliates\n(including reverse stock splits, Micromet stock repurchases, etc.) will not be a violation of this paragraph;\n5\n(iii) nothing in this Agreement will prohibit Amgen from acquiring another biotechnology or pharmaceutical company that\nbeneficially owns any securities of Micromet, provided that such biotechnology or pharmaceutical company will have acquired securities of\nMicromet other than in contemplation of Amgen acquiring such biotechnology or pharmaceutical company; and\n(iv) nothing in this Agreement will prohibit Amgen and its Representatives from initiating confidential discussions with, or\nsubmitting confidential proposals to, Micromet related to any commercial transaction between the Company and Micromet in the ordinary course\nbusiness (such as licensing, collaboration, research, development, marketing or comparable transactions).\n(c) For purposes of this Agreement, a “Terminating Event” will mean the occurrence of any of the following: (i) any Person\ncommences a tender or exchange offer for the majority of the voting power of Micromet; (ii) any Person or group that is or includes a company that\nis in the business of developing, marketing, selling or manufacturing human therapeutics acquires or proposes to acquire (and such proposal becomes\npublic) more than fifteen percent (15%) of Micromet’s capital stock, as long as Amgen is not and does not become a member of such group; or\n(iii) Micromet or a third Person publicly announces that Micromet has entered into, or Micromet publicly proposes to enter into, a definitive\nagreement with one or more unaffiliated third Persons providing for the acquisition by such Person or group of more than 25% of the voting\nsecurities of Micromet or all or substantially all the assets of Micromet (other than in connection with an internal restructuring transaction involving\nonly Micromet, one or more of its subsidiaries and/or any holding company formed for the purpose of such transaction wholly owned by persons\nwho were stockholders of Micromet immediately prior to such transaction). The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n8. No Obligation to Pursue Transaction. Unless Amgen and Micromet enter into a Definitive Agreement, no agreement providing for a\ntransaction involving Micromet will be deemed to exist between Amgen and Micromet, and neither Party will be under any obligation to negotiate or\nenter into any such agreement or transaction with Amgen. Micromet reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving Micromet, and to modify any procedures relating to any such process\nwithout giving notice to Amgen or any other Person; (b) to reject any proposal made by Amgen or any of Amgen’s Representatives with respect to a\ntransaction involving Micromet; and (c) to terminate discussions and negotiations with Amgen at any time. Amgen recognizes that, except as\nexpressly provided in any Definitive Agreement between Amgen and Micromet: Micromet and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party.\n9. No Waiver. No failure or delay by any Party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the\n6\nexercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of\na written instrument that is validly executed on behalf of each Party and that refers specifically to the particular provision or provisions being waived\nor amended.\n10. Remedies. Amgen acknowledges that money damages may not be a sufficient remedy for any breach of this Agreement by Amgen or any\nof Amgen’s Representatives and that Micromet may suffer irreparable harm as a result of any such breach. Accordingly, Micromet will also be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\nThe equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in\naddition to all other remedies available at law or in equity to Micromet.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon each Party and its assigns.\nThis Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of\nconflicts of laws). Each Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and\nfederal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agree\nthat service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement will be\neffective service of process for any action, suit or proceeding brought against such Party or any of such Party’s Representatives; (c) irrevocably and\nunconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state\nor federal court located in the State of Delaware; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and\nunconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state\nor federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information.\n(a) For purposes of this Agreement, “Confidential Information” will be deemed to include:\n(i) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of Micromet or any predecessor entity (whether prepared by Micromet or by any\nother Person and whether or not in written form) that is or has been made available to Amgen or any Representative of Amgen by or on behalf of\nMicromet or any Representative of Micromet on or after the date hereof; and\n(ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for Amgen or any Representative of Amgen and that contains any information of the type referred to in section 11(a)(i)\n(or is based on, reflects or interprets such information in a manner in which such information can be reasonably and specifically derived).\n7\n(b) Notwithstanding the foregoing, for the purposes of this Agreement “Confidential Information” will not include:\n(i) any information disclosed by or behalf of Micromet in connection with the Collaboration Agreement, which information\nremains subject to the confidentiality obligations set forth in the Collaboration Agreement;\n(ii) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by Amgen or by any of Amgen’s Representatives;\n(iii) any information that was in Amgen’s or its Representatives’ possession prior to the time it was first made available to\nAmgen or any of Amgen’s Representatives by or on behalf of Micromet or any of Micromet’s Representatives, provided that the source of such\ninformation was not known by Amgen to be bound by any contractual or other obligation of confidentiality to Micromet or any other Person with\nrespect to any of such information;\n(iv) any information that is independently discovered or developed by Amgen or its Representatives without reference to or the\nuse of Confidential Information; or\n(v) any information that becomes available to Amgen on a non-confidential basis from a source other than Micromet or any of\nMicromet’s Representatives, provided that such source is not known by Amgen bound by any contractual or other obligation of confidentiality to\nMicromet with respect to any of such information.\n13. Confidentiality of Discussions.\nDuring the Standstill Period only, each Party agrees that it shall not disclose the following to any Person other than its Representatives who\n(a) need to know such Confidential Information for the purpose of helping it evaluate or negotiate a Potential Transaction and (b) are bound by\nobligations of confidentiality at least as restrictive as the provisions hereof: (i) the existence and terms of this Agreement, and the fact that\nConfidential Information has been made available to Amgen or any of its Representatives and (ii) the fact that discussions or negotiations are or may\nbe taking place between the Parties with respect to a Potential Transaction, and the proposed terms of any such transaction.\n14. Term.\nThis Agreement will become effective on the date of this Agreement and terminate on the date that is eighteen months from the Effective Date\n(the “Term”); provided, however, that (a) the obligations contained in this Agreement with respect to Confidential Information other than IP\nInformation and Collaboration Information (each as defined below) disclosed during the Term will survive any expiration or termination of this\nAgreement until the sixth anniversary of the termination date, at which time they shall terminate and (b) the obligations contained in this Agreement\nwith respect to IP Information (as defined below) disclosed during the Term shall survive any expiration or termination of this Agreement until the\ntenth anniversary of the\ntermination date, at which time they shall terminate, and (c) the obligations contained in this Agreement with respect to Collaboration Information\n(as defined below) disclosed during the Term will survive any expiration or termination of the Agreement until the later to occur of (i) the date that is\nthe sixth anniversary of the Effective Date and (ii) the date that Micromet is no longer subject to any obligation of confidentiality existing as of the\nEffective Date in respect of such information under a Third Party Collaboration Agreement (as defined below), provided that Micromet has disclosed\nto Amgen all applicable provisions under any partnering or collaboration agreement with any third Person covering the Collaboration Information, at\nwhich time all obligations in respect of Collaboration Information shall terminate. “IP Information” shall mean shall mean any Confidential\nInformation that includes know how, trade secrets, unpublished patent applications, invention disclosures and prosecution histories, and technical\ndata. “Collaboration Information” shall mean any Confidential Information in respect of which Micromet has an obligation of confidentiality to a\nthird Person under any partnering or collaboration agreement between Micromet and such third Person as of the date hereof (each a “Third Party\nCollaboration Agreement”).\n15. Miscellaneous.\n(a) “Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under\ncommon control with a Party. For purposes of this definition only, “control” and, with correlative meanings, the terms “controlled by” and “under\ncommon control with” means (a) the possession, directly or indirectly, of the power to direct the management or policies of an entity, whether\nthrough the ownership of voting securities, contract rights, voting rights, corporate governance or otherwise, or (b) the ownership, directly or\nindirectly, of more than 50% of the voting securities or other ownership interest of an entity entitled to vote in the election of directors or similar\ngoverning body.\n(b) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) an\nAffiliate of such Party, or (ii) an officer, director, employee, partner, attorney, accountant, consultant, advisor, agent or representative of such Party or\nof any of such Party’s Affiliates; provided that Representatives shall not include Excluded Representatives.\n(c) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(d) The bold-faced captions appearing in this Agreement have been included only for convenience and will not affect or be taken into\naccount in the interpretation of this Agreement.\n(e) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n(f) By making Confidential Information or other information available to Amgen or Amgen’s Representatives, Micromet is not, and will\nnot be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright,\ntrademark or other proprietary or intellectual property right.\n(g) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, arbitration or dispute, it is acknowledged and agreed that Amgen and Micromet have a commonality of interest with\nrespect to such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and will not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work\nproduct doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine will remain entitled to protection thereunder and will be entitled to\nprotection under the joint defense doctrine, and Amgen agrees to take all commercially reasonable measures necessary to preserve, to the fullest\nextent possible, the applicability of all such privileges or doctrines.\n(h) This Agreement constitutes the entire agreement between Amgen and Micromet regarding the subject matter hereof and supersedes\nany prior agreement between Amgen and Micromet regarding the subject matter hereof.\n[SIGNATURES ON NEXT PAGE]\n10\nThe Parties have caused this Agreement to be executed as of the Effective Date.\nAMGEN INC. MICROMET, INC.\nBy:  /s/ David Piacquad By: /s/ Jens Hennecke\nName: David Piacquad Name: Jens Hennecke, Ph.D.\nTitle: Vice President, Strategy and Title: Senior Vice President,\nCorporate Development Business Development\n11	EX-99.(D)(6) 9 d290608dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is being entered into as of August 11, 2011 (the "Effective Date"), between\nAMGEN INC., a Delaware corporation (together with its Affiliates (as defined in section 14), "Amgen"), and MICROMET, INC., a Delaware\ncorporation (together with its Affiliates, "Micromet", and each of Micromet and Amgen individually or jointly referred to as "Party" and "Parties")\nIn\norder to facilitate the consideration and negotiation of a possible business combination involving Amgen and Micromet (the "Potential\nTransaction"), Amgen has requested access to certain non-public information regarding Micromet. This Agreement sets forth Amgen's obligations\nregarding the use and disclosure of such information and regarding various related matters.\nEach of the parties, intending to be legally bound, acknowledges and agrees as follows:\n1. Limitations on Use and Disclosure of Confidential Information.\n(a) Subject to section 4 below, neither Amgen nor any of Amgen's Representatives (as defined in section 13 below) will, at any time,\ndirectly or indirectly:\n(i) make use of any Confidential Information (as defined in section 12 below), except for the specific purpose of considering,\nevaluating and negotiating a Potential Transaction; or\n(ii) disclose any Confidential Information to any other Person (as defined in section 13 below).\n(b) Without the prior written consent of Micromet, Amgen will not disclose any of the Confidential Information to any Persons who are\nthe members representing Amgen on the "Joint Project Team" as defined in and established pursuant to that certain Collaboration and License\nAgreement, dated as of July 11, 2011, by and between Micromet, Inc., Micromet AG and Amgen Inc. (the "Collaboration Agreement") set forth on\nSchedule I hereto under the header "Excluded Project Team Members" C the "Excluded Representatives") and Amgen will not directly engage\nsuch\nExcluded Representatives in the process of evaluating or negotiating a Potential Transaction; provided, however, that if, after the date hereof and\nduring period of the Term that the Parties continue to be in discussions regarding a Potential Transaction, Amgen notifies Micromet in writing\npursuant to the Collaboration Agreement that it has added Persons to Joint Project Team, Schedule I will be revised to include those Persons as\nExcluded Representatives, with the restrictions applicable to Excluded Representatives effective in respect of such Person as of the date identified\nopposite such Person's name on Schedule I (which will be the date notice of the addition of such Person to the Joint Project Team was delivered\npursuant to the Collaboration Agreement); and provided, further, that notwithstanding any other provision of this section 1(b), the Persons on\nAmgen's project team established under the Collaboration Agreement who are listed on Schedule I under the header "Participating Project Team\nMembers" shall not be Excluded Representatives.\n(c) Amgen will be liable and responsible for any breach of this Agreement by any of its Representatives and for any actions taken by\nsuch Representatives on behalf of or for the direct benefit of Amgen that would have constituted a breach under this Agreement had such\nRepresentative been a party hereto. Amgen will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making\nany unauthorized use or disclosure of any Confidential Information; provided, that in no event will Amgen be required to make any undertaking with\nrespect to its Representatives beyond that which it would undertake to protect the confidentiality of its own confidential information of a similar\nnature in the ordinary course of its business, but in no case shall Amgen use less than reasonable care in the protection of such Confidential\nInformation.\n2. Contacts between Amgen and Micromet.\n(a) During the Standstill Period, unless otherwise authorized by Micromet, Inc.'s Chief Executive Officer (the "CEO") or the chairman\nof\nMicromet, Inc.'s board of directors (the "Chairman"), Amgen and any Amgen Representatives will not contact or otherwise communicate\ndirectly with any of Micromet's officers, directors or employees on matters relating to the Potential Transaction except (i) through the CEO or the\nChairman, or (ii) at meetings and telephone calls attended by the CEO or the Chairman.\n(b)\nAny request by Amgen or any of its Representatives to review Confidential Information must be directed to the CEO, or such\nother\nPerson as the CEO may designate from time to time.\n3. No Representations by Micromet. Neither Micromet nor any of Micromet's Representatives will be under any obligation to make any\nConfidential Information available to Amgen or any of Amgen's Representatives or to supplement or update any Confidential Information\npreviously furnished. Neither Micromet nor any of its Representatives has made or is making any representation or warranty, express or implied, as\nto the accuracy or completeness of any Confidential Information, and neither Micromet nor any of its Representatives will have any liability to\nAmgen or to any of Amgen's Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a Potential Transaction between Amgen and Micromet and is validly executed on behalf of Amgen and Micromet\n(a "Definitive Agreement") will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) Amgen or its Representatives may disclose Confidential Information if and to the extent that Micromet consents in writing to\nAmgen's or its Representative's disclosure thereof;\n(ii) Subject to section 1(b) of this Agreement, Amgen may disclose Confidential Information to any Representative of Amgen,\nbut only to the extent such\n2\nRepresentative (A) needs to know such Confidential Information for the purpose of helping Amgen evaluate or negotiate a Potential Transaction, and\n(B) is bound by obligations of confidentiality at least as restrictive as the provisions hereof; and\n(iii) subject to section 4(b) below, Amgen may disclose Confidential Information (1) to the extent required by applicable law or\ngovernmental regulation (including without limitation any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Amgen's securities are listed or quoted), by valid legal process or in response to a demand by a\nregulatory agency, or (2) to establish Amgen's compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder\nin the defense of a claim by Micromet that Amgen has breached this Agreement (including through its Representatives).\n(b) If Micromet delivers to Amgen a written notice stating that specifically identified documents or materials that are Confidential\nInformation may be disclosed only to specified Representatives of Amgen prior to the delivery of such to Amgen or its Representatives, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, Amgen will not thereafter disclose or permit the disclosure of any such\nConfidential Information to any other Representative of Amgen unless otherwise authorized by Micromet.\n(c) If Amgen or any of Amgen's Representatives is required by law or governmental regulation (including without limitation any rule,\nregulation or policy statement of any national securities exchange, market or automated quotation system on which any of Amgen's securities are\nlisted or quoted) or by subpoena or other valid legal process or in response to a demand by a regulatory agency to disclose any Confidential\nInformation to any Person, then Amgen will promptly provide Micromet with written notice of the requirement SO that Micromet may seek a\nprotective order or other appropriate remedy. Amgen will use commercially reasonable efforts (i) to cooperate fully with Micromet and Micromet's\nRepresentatives in any attempt by Micromet to obtain any such protective order or other remedy and (ii) cause its Representatives to do the same.\nIf\nMicromet elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that\nAmgen disclose Confidential Information, and if Amgen furnishes Micromet with a written opinion of reputable legal counsel confirming that the\ndisclosure of such Confidential Information is legally required, then Amgen may disclose such Confidential Information to the extent legally\nrequired; provided, however, that Amgen will use its commercially reasonable efforts to ensure that such Confidential Information is treated\nconfidentially by each Person to whom it is disclosed and will use its commercially reasonable efforts to cause its Representatives to do the same;\nprovided, that in no event will Amgen or its Representatives be required to make any undertaking beyond that which it would undertake to protect\nthe confidentiality of its own confidential information of a similar nature in the ordinary course of its business, but in no case shall Amgen use less\nthan reasonable care in the protection of such Confidential Information.\n5. Return of Confidential Information. If Amgen determines that it does not wish to proceed with the possible negotiated transaction with\nMicromet, Amgen will promptly advise Micromet in writing of that decision. Upon Micromet's written request, Amgen and Amgen's\nRepresentatives will, promptly deliver to Micromet any Confidential Information (and all copies\n3\nthereof) obtained or possessed by Amgen or any of Amgen's Representatives; provided, however, that, in lieu of delivering to Micromet any written\nmaterials Amgen and its Representatives may destroy such written materials and deliver to Micromet a certificate confirming their destruction.\nNotwithstanding the foregoing, Amgen's Representatives that are law firms may retain copies of the Confidential Information solely for archival\npurposes and to establish Amgen's compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder and Amgen's\nRepresentatives that are lenders, financial advisors and/or accounting firms may retain, solely for compliance purposes, copies of the Confidential\nInformation in accordance with policies and procedures implemented by such persons in order to comply with law, regulation or professional\nstandards. Notwithstanding any other provision of this Agreement to the contrary, neither Amgen nor its Representatives will be required to destroy\nany electronic files created during any automatic backup that are subsequently stored securely by Amgen and/or its Representatives, provided that\nAmgen and its Representatives will not access with the intent to use any such electronic files following the date such electronic files would\notherwise be required to be redelivered or destroyed. Notwithstanding the delivery to Micromet (or the destruction by Amgen) of Confidential\nInformation pursuant to this section 5, Amgen and its Representatives will continue to be bound by their confidentiality obligations and other\nobligations under this Agreement.\n6. Limitation on Hiring and Soliciting Employees. During the twelve month period commencing on the Effective Date, none of Amgen's\nRepresentatives who have received Confidential Information under this Agreement will solicit or cause to be solicited any Covered Person (as\ndefined in this section 6 below) to terminate such Covered Person's employment relationship with Micromet in order to become an employee,\nconsultant, or independent contractor, to or for Amgen. This section 6 will not prevent Amgen from placing causing to be placed any general\nadvertisement or similar notice of open positions in the ordinary course of business that is not targeted specifically at employees of Micromet\nor\nengaging employee search firms that are not specifically instructed by Amgen to target Covered Persons. For purposes of this Agreement, "Covered\nPerson" will mean any Person who is an officer or employee of Micromet with a title of Director or higher as of the date of this Agreement or who\nbecomes an officer or employee with a title of Director or higher during the Term and before the termination of discussions regarding a Potential\nTransaction.\n7. Standstill Provisions.\n(a) Subject to section 7(c), without the prior written request or consent of Micromet, during the period commencing on the Effective\nDate and terminating on the earlier to occur of (i) eighteen months from that date or (ii) the date of any Terminating Event (defined below) (such\nperiod, the "Standstill Period"), Amgen will not directly or indirectly:\n(i) make, effect, initiate, cause or participate in (1) any acquisition of beneficial ownership of any securities of Micromet or any\nsecurities of any subsidiary of Micromet, (2) any acquisition of any material assets of Micromet (other than in connection with the Collaboration\nAgreement), (3) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Micromet or any subsidiary of Micromet, or involving any securities or assets of Micromet or any securities or\nassets of any subsidiary of Micromet, or (4) any "solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents with respect to any securities of Micromet;\n4\n(ii) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Micromet;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nMicromet;\n(iv) take any action that requires Micromet to make a public announcement regarding any of the types of matters set forth in\nclause "(i)" of this sentence;\n(v) enter into any discussions, negotiations, arrangement or agreement with any other Person (other than its Affiliates or\nMicromet) relating to any of the foregoing;\n(vi) publicly request or publicly propose that Micromet or any of Micromet's Representatives amend, waive or consider the\namendment or waiver of any provision set forth in this section 7(a); or\n(vii) agree to take, or encourage or propose the taking of, any action referred to in this section 7(a);\n(b) Notwithstanding any other provision of this Agreement:\n(i) nothing in this Agreement will prevent Amgen or its Representatives from communicating with the CEO or the Chairman to\nmake a proposal for or to negotiate with Micromet in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in section 7(a)(i) involving Micromet and Amgen so long as such communication is made confidentially;\n(ii) nothing in this Agreement will prohibit Amgen from acquiring any class of securities of Micromet (including the voting\nrights thereof) by or through (1) a diversified mutual or pension fund managed by an independent investment adviser or pension plan established for\nthe benefit of any of Amgen's employees or (2) any bona fide benefit plan maintained for the benefit of employees of Amgen (and, in the case of\nclauses (1) and (2) of this sentence, any such securities will not be considered beneficially owned by Amgen for purposes of section 7(a) above);\nprovided that, in the case of clauses (1) and (2), (A) such acquisitions are ordinary course trading activities in compliance with applicable\nsecurities\nlaws and Amgen will not in any way request or direct that the trustee or other administrator of such fund or plan purchase or acquire any equity\nsecurities, (B) such acquisitions are for passive investment not made with the purpose, or the effect, of either influencing the control of Micromet\nor\neffecting or preventing any control transaction involving Micromet and (C) such acquisitions, when combined with all other securities of the\nMicromet owned by Amgen, its affiliates and such funds and plans, will not represent 5% or more of the securities of Micromet; provided,\nfurther,\nthat, any acquisition and/or ownership of any class of securities of Micromet that results from actions by persons other than Amgen and its affiliates\n(including reverse stock splits, Micromet stock repurchases, etc.) will not be a violation of this paragraph;\n5\n(iii)\nnothing in this Agreement will prohibit Amgen from acquiring another biotechnology or pharmaceutical company\nthat\nbeneficially owns any securities of Micromet, provided that such biotechnology or pharmaceutical company will have acquired securities of\nMicromet other than in contemplation of Amgen acquiring such biotechnology or pharmaceutical company; and\n(iv) nothing in this Agreement will prohibit Amgen and its Representatives from initiating confidential discussions with, or\nsubmitting confidential proposals to, Micromet related to any commercial transaction between the Company and Micromet in the ordinary course\nbusiness (such as licensing, collaboration, research, development, marketing or comparable transactions).\n(c) For purposes of this Agreement, a "Terminating Event" will mean the occurrence of any of the following: (i) any Person\ncommences a tender or exchange offer for the majority of the voting power of Micromet; (ii) any Person or group that is or includes a company that\nis in the business of developing, marketing, selling or manufacturing human therapeutics acquires or proposes to acquire (and such proposal becomes\npublic) more than fifteen percent (15%) of Micromet's capital stock, as long as Amgen is not and does not become a member of such group; or\n(iii) Micromet or a third Person publicly announces that Micromet has entered into, or Micromet publicly proposes to enter into, a definitive\nagreement with one or more unaffiliated third Persons providing for the acquisition by such Person or group of more than 25% of the voting\nsecurities of Micromet or all or substantially all the assets of Micromet (other than in connection with an internal restructuring transaction involving\nonly Micromet, one or more of its subsidiaries and/or any holding company formed for the purpose of such transaction wholly owned by persons\nwho were stockholders of Micromet immediately prior to such transaction). The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n8. No Obligation to Pursue Transaction. Unless Amgen and Micromet enter into a Definitive Agreement, no agreement providing for a\ntransaction\ninvolving\nMicromet will be deemed to exist between Amgen and Micromet, and neither Party will be under any obligation to negotiate\nor\nenter into any such agreement or transaction with Amgen. Micromet reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving Micromet, and to modify any procedures relating to any such process\nwithout giving notice to Amgen or any other Person; (b) to reject any proposal made by Amgen or any of Amgen's Representatives with respect\nto\na\ntransaction involving Micromet; and (c) to terminate discussions and negotiations with Amgen at any time. Amgen recognizes that, except as\nexpressly provided in any Definitive Agreement between Amgen and Micromet: Micromet and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party.\n9. No Waiver. No failure or delay by any Party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the\n6\nexercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of\na\nwritten instrument that is validly executed on behalf of each Party and that refers specifically to the particular provision or provisions being waived\nor amended.\n10. Remedies. Amgen acknowledges that money damages may not be a sufficient remedy for any breach of this Agreement by Amgen or any\nof Amgen's Representatives and that Micromet may suffer irreparable harm as a result of any such breach. Accordingly, Micromet will also be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\nThe equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be\nin\naddition to all other remedies available at law or in equity to Micromet.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon each Party and its assigns.\nThis Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of\nconflicts of laws). Each Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and\nfederal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agree\nthat service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement will be\neffective service of process for any action, suit or proceeding brought against such Party or any of such Party's Representatives; (c) irrevocably and\nunconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state\nor federal court located in the State of Delaware; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and\nunconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state\nor federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information.\n(a) For purposes of this Agreement, "Confidential Information" will be deemed to include:\n(i) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of Micromet or any predecessor entity (whether prepared by Micromet or by any\nother Person and whether or not in written form) that is or has been made available to Amgen or any Representative of Amgen by or on behalf\nof\nMicromet or any Representative of Micromet on or after the date hereof; and\n(ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for Amgen or any Representative of Amgen and that contains any information of the type referred to in section 11(a)(i)\n(or is based on, reflects or interprets such information in a manner in which such information can be reasonably and specifically derived).\n7\n(b) Notwithstanding the foregoing, for the purposes of this Agreement "Confidential Information" will not include:\n(i) any information disclosed by or behalf of Micromet in connection with the Collaboration Agreement, which information\nremains subject to the confidentiality obligations set forth in the Collaboration Agreement;\n(ii) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by Amgen or by any of Amgen's Representatives;\n(iii) any information that was in Amgen's or its Representatives' possession prior to the time it was first made available to\nAmgen or any of Amgen's Representatives by or on behalf of Micromet or any of Micromet's Representatives, provided that the source of such\ninformation was not known by Amgen to be bound by any contractual or other obligation of confidentiality to Micromet or any other Person with\nrespect to any of such information;\n(iv) any information that is independently discovered or developed by Amgen or its Representatives without reference to or the\nuse of Confidential Information; or\n(v) any information that becomes available to Amgen on a non-confidential basis from a source other than Micromet or any of\nMicromet's Representatives, provided that such source is not known by Amgen bound by any contractual or other obligation of confidentiality to\nMicromet with respect to any of such information.\n13. Confidentiality of Discussions.\nDuring the Standstill Period only, each Party agrees that it shall not disclose the following to any Person other than its Representatives who\n(a) need to know such Confidential Information for the purpose of helping it evaluate or negotiate a Potential Transaction and (b) are bound by\nobligations of confidentiality at least as restrictive as the provisions hereof: (i) the existence and terms of this Agreement, and the fact that\nConfidential Information has been made available to Amgen or any of its Representatives and (ii) the fact that discussions or negotiations are or may\nbe taking place between the Parties with respect to a Potential Transaction, and the proposed terms of any such transaction.\n14. Term.\nThis Agreement will become effective on the date of this Agreement and terminate on the date that is eighteen months from the Effective Date\n(the "Term"); provided, however, that (a) the obligations contained in this Agreement with respect to Confidential Information other than IP\nInformation and Collaboration Information (each as defined below) disclosed during the Term will survive any expiration or termination of this\nAgreement until the sixth anniversary of the termination date, at which time they shall terminate and (b) the obligations contained in this Agreement\nwith respect to IP Information (as defined below) disclosed during the Term shall survive any expiration or termination of this Agreement until the\ntenth anniversary of the\n8\ntermination date, at which time they shall terminate, and (c) the obligations contained in this Agreement with respect to Collaboration Information\n(as defined below) disclosed during the Term will survive any expiration or termination of the Agreement until the later to occur of (i) the date that\nis\nthe sixth anniversary of the Effective Date and (ii) the date that Micromet is no longer subject to any obligation of confidentiality existing as of the\nEffective Date in respect of such information under a Third Party Collaboration Agreement (as defined below), provided that Micromet has disclosed\nto Amgen all applicable provisions under any partnering or collaboration agreement with any third Person covering the Collaboration Information, at\nwhich time all obligations in respect of Collaboration Information shall terminate. "IP Information" shall mean shall mean any Confidential\nInformation that includes know how, trade secrets, unpublished patent applications, invention disclosures and prosecution histories, and technical\ndata. "Collaboration Information" shall mean any Confidential Information in respect of which Micromet has an obligation of confidentiality to a\nthird Person under any partnering or collaboration agreement between Micromet and such third Person as of the date hereof (each a "Third Party\nCollaboration Agreement").\n15. Miscellaneous.\n(a) "Affiliate" means an entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under\ncommon control with a Party. For purposes of this definition only, "control" and, with correlative meanings, the terms "controlled by" and "under\ncommon control with" means (a) the possession, directly or indirectly, of the power to direct the management or policies of an entity, whether\nthrough the ownership of voting securities, contract rights, voting rights, corporate governance or otherwise, or (b) the ownership, directly or\nindirectly, of more than 50% of the voting securities or other ownership interest of an entity entitled to vote in the election of directors or similar\ngoverning body.\n(b) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) an\nAffiliate of such Party, or (ii) an officer, director, employee, partner, attorney, accountant, consultant, advisor, agent or representative of such Party or\nof any of such Party's Affiliates; provided that Representatives shall not include Excluded Representatives.\n(c) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(d) The bold-faced captions appearing in this Agreement have been included only for convenience and will not affect or be taken into\naccount in the interpretation of this Agreement.\n(e) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n9\n(f) By making Confidential Information or other information available to Amgen or Amgen's Representatives, Micromet is not, and will\nnot be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright,\ntrademark or other proprietary or intellectual property right.\n(g) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, arbitration or dispute, it is acknowledged and agreed that Amgen and Micromet have a commonality of interest with\nrespect to such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and will not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work\nproduct doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine will remain entitled to protection thereunder and will be entitled to\nprotection under the joint defense doctrine, and Amgen agrees to take all commercially reasonable measures necessary to preserve, to the fullest\nextent possible, the applicability of all such privileges or doctrines.\n(h) This Agreement constitutes the entire agreement between Amgen and Micromet regarding the subject matter hereof and supersedes\nany prior agreement between Amgen and Micromet regarding the subject matter hereof.\n[SIGNATURES ON NEXT PAGE]\n10\nThe Parties have caused this Agreement to be executed as of the Effective Date.\nAMGEN INC.\nMICROMET, INC.\nBy:\n/s/ David Piacquad\nBy:\n/s/ Jens Hennecke\nName: David Piacquad\nName: Jens Hennecke, Ph.D.\nTitle: Vice President, Strategy and\nTitle: Senior Vice President,\nCorporate Development\nBusiness Development\n11	EX-99.(D)(6) 9 d290608dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of August 11, 2011 (the “Effective Date”), between\nAMGEN INC., a Delaware corporation (together with its Affiliates (as defined in section 14), “Amgen”), and MICROMET, INC., a Delaware\ncorporation (together with its Affiliates, “Micromet”, and each of Micromet and Amgen individually or jointly referred to as “Party” and “Parties”)\nIn order to facilitate the consideration and negotiation of a possible business combination involving Amgen and Micromet (the “Potential\nTransaction”), Amgen has requested access to certain non-public information regarding Micromet. This Agreement sets forth Amgen’s obligations\nregarding the use and disclosure of such information and regarding various related matters.\nEach of the parties, intending to be legally bound, acknowledges and agrees as follows:\n1. Limitations on Use and Disclosure of Confidential Information.\n(a) Subject to section 4 below, neither Amgen nor any of Amgen’s Representatives (as defined in section 13 below) will, at any time,\ndirectly or indirectly:\n(i) make use of any Confidential Information (as defined in section 12 below), except for the specific purpose of considering,\nevaluating and negotiating a Potential Transaction; or\n(ii) disclose any Confidential Information to any other Person (as defined in section 13 below).\n(b) Without the prior written consent of Micromet, Amgen will not disclose any of the Confidential Information to any Persons who are\nthe members representing Amgen on the “Joint Project Team” as defined in and established pursuant to that certain Collaboration and License\nAgreement, dated as of July 11, 2011, by and between Micromet, Inc., Micromet AG and Amgen Inc. (the “Collaboration Agreement”) set forth on\nSchedule I hereto under the header “Excluded Project Team Members” ( the “Excluded Representatives”) and Amgen will not directly engage such\nExcluded Representatives in the process of evaluating or negotiating a Potential Transaction; provided, however, that if, after the date hereof and\nduring period of the Term that the Parties continue to be in discussions regarding a Potential Transaction, Amgen notifies Micromet in writing\npursuant to the Collaboration Agreement that it has added Persons to Joint Project Team, Schedule I will be revised to include those Persons as\nExcluded Representatives, with the restrictions applicable to Excluded Representatives effective in respect of such Person as of the date identified\nopposite such Person’s name on Schedule I (which will be the date notice of the addition of such Person to the Joint Project Team was delivered\npursuant to the Collaboration Agreement); and provided, further, that notwithstanding any other provision of this section 1(b), the Persons on\nAmgen’s project team established under the Collaboration Agreement who are listed on Schedule I under the header “Participating Project Team\nMembers” shall not be Excluded Representatives.\n(c) Amgen will be liable and responsible for any breach of this Agreement by any of its Representatives and for any actions taken by\nsuch Representatives on behalf of or for the direct benefit of Amgen that would have constituted a breach under this Agreement had such\nRepresentative been a party hereto. Amgen will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making\nany unauthorized use or disclosure of any Confidential Information; provided, that in no event will Amgen be required to make any undertaking with\nrespect to its Representatives beyond that which it would undertake to protect the confidentiality of its own confidential information of a similar\nnature in the ordinary course of its business, but in no case shall Amgen use less than reasonable care in the protection of such Confidential\nInformation.\n2. Contacts between Amgen and Micromet.\n(a) During the Standstill Period, unless otherwise authorized by Micromet, Inc.’s Chief Executive Officer (the “CEO”) or the chairman\nof Micromet, Inc.’s board of directors (the “Chairman”), Amgen and any Amgen Representatives will not contact or otherwise communicate\ndirectly with any of Micromet’s officers, directors or employees on matters relating to the Potential Transaction except (i) through the CEO or the\nChairman, or (ii) at meetings and telephone calls attended by the CEO or the Chairman.\n(b) Any request by Amgen or any of its Representatives to review Confidential Information must be directed to the CEO, or such other\nPerson as the CEO may designate from time to time.\n3. No Representations by Micromet. Neither Micromet nor any of Micromet’s Representatives will be under any obligation to make any\nConfidential Information available to Amgen or any of Amgen’s Representatives or to supplement or update any Confidential Information\npreviously furnished. Neither Micromet nor any of its Representatives has made or is making any representation or warranty, express or implied, as\nto the accuracy or completeness of any Confidential Information, and neither Micromet nor any of its Representatives will have any liability to\nAmgen or to any of Amgen’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a Potential Transaction between Amgen and Micromet and is validly executed on behalf of Amgen and Micromet\n(a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) Amgen or its Representatives may disclose Confidential Information if and to the extent that Micromet consents in writing to\nAmgen’s or its Representative’s disclosure thereof;\n(ii) Subject to section 1(b) of this Agreement, Amgen may disclose Confidential Information to any Representative of Amgen,\nbut only to the extent such\n2\nRepresentative (A) needs to know such Confidential Information for the purpose of helping Amgen evaluate or negotiate a Potential Transaction, and\n(B) is bound by obligations of confidentiality at least as restrictive as the provisions hereof; and\n(iii) subject to section 4(b) below, Amgen may disclose Confidential Information (1) to the extent required by applicable law or\ngovernmental regulation (including without limitation any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Amgen’s securities are listed or quoted), by valid legal process or in response to a demand by a\nregulatory agency, or (2) to establish Amgen’s compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder\nin the defense of a claim by Micromet that Amgen has breached this Agreement (including through its Representatives).\n(b) If Micromet delivers to Amgen a written notice stating that specifically identified documents or materials that are Confidential\nInformation may be disclosed only to specified Representatives of Amgen prior to the delivery of such to Amgen or its Representatives, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, Amgen will not thereafter disclose or permit the disclosure of any such\nConfidential Information to any other Representative of Amgen unless otherwise authorized by Micromet.\n(c) If Amgen or any of Amgen’s Representatives is required by law or governmental regulation (including without limitation any rule,\nregulation or policy statement of any national securities exchange, market or automated quotation system on which any of Amgen’s securities are\nlisted or quoted) or by subpoena or other valid legal process or in response to a demand by a regulatory agency to disclose any Confidential\nInformation to any Person, then Amgen will promptly provide Micromet with written notice of the requirement so that Micromet may seek a\nprotective order or other appropriate remedy. Amgen will use commercially reasonable efforts (i) to cooperate fully with Micromet and Micromet’s\nRepresentatives in any attempt by Micromet to obtain any such protective order or other remedy and (ii) cause its Representatives to do the same. If\nMicromet elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that\nAmgen disclose Confidential Information, and if Amgen furnishes Micromet with a written opinion of reputable legal counsel confirming that the\ndisclosure of such Confidential Information is legally required, then Amgen may disclose such Confidential Information to the extent legally\nrequired; provided, however, that Amgen will use its commercially reasonable efforts to ensure that such Confidential Information is treated\nconfidentially by each Person to whom it is disclosed and will use its commercially reasonable efforts to cause its Representatives to do the same;\nprovided, that in no event will Amgen or its Representatives be required to make any undertaking beyond that which it would undertake to protect\nthe confidentiality of its own confidential information of a similar nature in the ordinary course of its business, but in no case shall Amgen use less\nthan reasonable care in the protection of such Confidential Information.\n5. Return of Confidential Information. If Amgen determines that it does not wish to proceed with the possible negotiated transaction with\nMicromet, Amgen will promptly advise Micromet in writing of that decision. Upon Micromet’s written request, Amgen and Amgen’s\nRepresentatives will, promptly deliver to Micromet any Confidential Information (and all copies\n3\nthereof) obtained or possessed by Amgen or any of Amgen’s Representatives; provided, however, that, in lieu of delivering to Micromet any written\nmaterials Amgen and its Representatives may destroy such written materials and deliver to Micromet a certificate confirming their destruction.\nNotwithstanding the foregoing, Amgen’s Representatives that are law firms may retain copies of the Confidential Information solely for archival\npurposes and to establish Amgen’s compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder and Amgen’s\nRepresentatives that are lenders, financial advisors and/or accounting firms may retain, solely for compliance purposes, copies of the Confidential\nInformation in accordance with policies and procedures implemented by such persons in order to comply with law, regulation or professional\nstandards. Notwithstanding any other provision of this Agreement to the contrary, neither Amgen nor its Representatives will be required to destroy\nany electronic files created during any automatic backup that are subsequently stored securely by Amgen and/or its Representatives, provided that\nAmgen and its Representatives will not access with the intent to use any such electronic files following the date such electronic files would\notherwise be required to be redelivered or destroyed. Notwithstanding the delivery to Micromet (or the destruction by Amgen) of Confidential\nInformation pursuant to this section 5, Amgen and its Representatives will continue to be bound by their confidentiality obligations and other\nobligations under this Agreement.\n6. Limitation on Hiring and Soliciting Employees. During the twelve month period commencing on the Effective Date, none of Amgen’s\nRepresentatives who have received Confidential Information under this Agreement will solicit or cause to be solicited any Covered Person (as\ndefined in this section 6 below) to terminate such Covered Person’s employment relationship with Micromet in order to become an employee,\nconsultant, or independent contractor, to or for Amgen. This section 6 will not prevent Amgen from placing causing to be placed any general\nadvertisement or similar notice of open positions in the ordinary course of business that is not targeted specifically at employees of Micromet or\nengaging employee search firms that are not specifically instructed by Amgen to target Covered Persons. For purposes of this Agreement, “Covered\nPerson” will mean any Person who is an officer or employee of Micromet with a title of Director or higher as of the date of this Agreement or who\nbecomes an officer or employee with a title of Director or higher during the Term and before the termination of discussions regarding a Potential\nTransaction.\n7. Standstill Provisions.\n(a) Subject to section 7(c), , without the prior written request or consent of Micromet, during the period commencing on the Effective\nDate and terminating on the earlier to occur of (i) eighteen months from that date or (ii) the date of any Terminating Event (defined below) (such\nperiod, the “Standstill Period”), Amgen will not directly or indirectly:\n(i) make, effect, initiate, cause or participate in (1) any acquisition of beneficial ownership of any securities of Micromet or any\nsecurities of any subsidiary of Micromet, (2) any acquisition of any material assets of Micromet (other than in connection with the Collaboration\nAgreement), (3) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Micromet or any subsidiary of Micromet, or involving any securities or assets of Micromet or any securities or\nassets of any subsidiary of Micromet, or (4) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents with respect to any securities of Micromet;\n4\n(ii) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Micromet;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nMicromet;\n(iv) take any action that requires Micromet to make a public announcement regarding any of the types of matters set forth in\nclause “(i)” of this sentence;\n(v) enter into any discussions, negotiations, arrangement or agreement with any other Person (other than its Affiliates or\nMicromet) relating to any of the foregoing;\n(vi) publicly request or publicly propose that Micromet or any of Micromet’s Representatives amend, waive or consider the\namendment or waiver of any provision set forth in this section 7(a); or\n(vii) agree to take, or encourage or propose the taking of, any action referred to in this section 7(a);\n(b) Notwithstanding any other provision of this Agreement:\n(i) nothing in this Agreement will prevent Amgen or its Representatives from communicating with the CEO or the Chairman to\nmake a proposal for or to negotiate with Micromet in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in section 7(a)(i) involving Micromet and Amgen so long as such communication is made confidentially;\n(ii) nothing in this Agreement will prohibit Amgen from acquiring any class of securities of Micromet (including the voting\nrights thereof) by or through (1) a diversified mutual or pension fund managed by an independent investment adviser or pension plan established for\nthe benefit of any of Amgen’s employees or (2) any bona fide benefit plan maintained for the benefit of employees of Amgen (and, in the case of\nclauses (1) and (2) of this sentence, any such securities will not be considered beneficially owned by Amgen for purposes of section 7(a) above);\nprovided that, in the case of clauses (1) and (2), (A) such acquisitions are ordinary course trading activities in compliance with applicable securities\nlaws and Amgen will not in any way request or direct that the trustee or other administrator of such fund or plan purchase or acquire any equity\nsecurities, (B) such acquisitions are for passive investment not made with the purpose, or the effect, of either influencing the control of Micromet or\neffecting or preventing any control transaction involving Micromet and (C) such acquisitions, when combined with all other securities of the\nMicromet owned by Amgen, its affiliates and such funds and plans, will not represent 5% or more of the securities of Micromet; provided, further,\nthat, any acquisition and/or ownership of any class of securities of Micromet that results from actions by persons other than Amgen and its affiliates\n(including reverse stock splits, Micromet stock repurchases, etc.) will not be a violation of this paragraph;\n5\n(iii) nothing in this Agreement will prohibit Amgen from acquiring another biotechnology or pharmaceutical company that\nbeneficially owns any securities of Micromet, provided that such biotechnology or pharmaceutical company will have acquired securities of\nMicromet other than in contemplation of Amgen acquiring such biotechnology or pharmaceutical company; and\n(iv) nothing in this Agreement will prohibit Amgen and its Representatives from initiating confidential discussions with, or\nsubmitting confidential proposals to, Micromet related to any commercial transaction between the Company and Micromet in the ordinary course\nbusiness (such as licensing, collaboration, research, development, marketing or comparable transactions).\n(c) For purposes of this Agreement, a “Terminating Event” will mean the occurrence of any of the following: (i) any Person\ncommences a tender or exchange offer for the majority of the voting power of Micromet; (ii) any Person or group that is or includes a company that\nis in the business of developing, marketing, selling or manufacturing human therapeutics acquires or proposes to acquire (and such proposal becomes\npublic) more than fifteen percent (15%) of Micromet’s capital stock, as long as Amgen is not and does not become a member of such group; or\n(iii) Micromet or a third Person publicly announces that Micromet has entered into, or Micromet publicly proposes to enter into, a definitive\nagreement with one or more unaffiliated third Persons providing for the acquisition by such Person or group of more than 25% of the voting\nsecurities of Micromet or all or substantially all the assets of Micromet (other than in connection with an internal restructuring transaction involving\nonly Micromet, one or more of its subsidiaries and/or any holding company formed for the purpose of such transaction wholly owned by persons\nwho were stockholders of Micromet immediately prior to such transaction). The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n8. No Obligation to Pursue Transaction. Unless Amgen and Micromet enter into a Definitive Agreement, no agreement providing for a\ntransaction involving Micromet will be deemed to exist between Amgen and Micromet, and neither Party will be under any obligation to negotiate or\nenter into any such agreement or transaction with Amgen. Micromet reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving Micromet, and to modify any procedures relating to any such process\nwithout giving notice to Amgen or any other Person; (b) to reject any proposal made by Amgen or any of Amgen’s Representatives with respect to a\ntransaction involving Micromet; and (c) to terminate discussions and negotiations with Amgen at any time. Amgen recognizes that, except as\nexpressly provided in any Definitive Agreement between Amgen and Micromet: Micromet and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party.\n9. No Waiver. No failure or delay by any Party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the\n6\nexercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of\na written instrument that is validly executed on behalf of each Party and that refers specifically to the particular provision or provisions being waived\nor amended.\n10. Remedies. Amgen acknowledges that money damages may not be a sufficient remedy for any breach of this Agreement by Amgen or any\nof Amgen’s Representatives and that Micromet may suffer irreparable harm as a result of any such breach. Accordingly, Micromet will also be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\nThe equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in\naddition to all other remedies available at law or in equity to Micromet.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon each Party and its assigns.\nThis Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of\nconflicts of laws). Each Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and\nfederal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agree\nthat service of any process, summons, notice or document by U.S . registered mail to the address set forth at the end of this Agreement will be\neffective service of process for any action, suit or proceeding brought against such Party or any of such Party’s Representatives; (c) irrevocably and\nunconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state\nor federal court located in the State of Delaware; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and\nunconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state\nor federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information.\n(a) For purposes of this Agreement, “Confidential Information” will be deemed to include:\n(i) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of Micromet or any predecessor entity (whether prepared by Micromet or by any\nother Person and whether or not in written form) that is or has been made available to Amgen or any Representative of Amgen by or on behalf of\nMicromet or any Representative of Micromet on or after the date hereof; and\n(ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for Amgen or any Representative of Amgen and that contains any information of the type referred to in section 11(a)(i)\n(or is based on, reflects or interprets such information in a manner in which such information can be reasonably and specifically derived).\n7\n(b) Notwithstanding the foregoing, for the purposes of this Agreement “Confidential Information” will not include:\n(i) any information disclosed by or behalf of Micromet in connection with the Collaboration Agreement, which information\nremains subject to the confidentiality obligations set forth in the Collaboration Agreement;\n(ii) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by Amgen or by any of Amgen’s Representatives;\n(iii) any information that was in Amgen’s or its Representatives’ possession prior to the time it was first made available to\nAmgen or any of Amgen’s Representatives by or on behalf of Micromet or any of Micromet’s Representatives, provided that the source of such\ninformation was not known by Amgen to be bound by any contractual or other obligation of confidentiality to Micromet or any other Person with\nrespect to any of such information;\n(iv) any information that is independently discovered or developed by Amgen or its Representatives without reference to or the\nuse of Confidential Information; or\n(v) any information that becomes available to Amgen on a non-confidential basis from a source other than Micromet or any of\nMicromet’s Representatives, provided that such source is not known by Amgen bound by any contractual or other obligation of confidentiality to\nMicromet with respect to any of such information.\n13. Confidentiality of Discussions.\nDuring the Standstill Period only, each Party agrees that it shall not disclose the following to any Person other than its Representatives who\n(a) need to know such Confidential Information for the purpose of helping it evaluate or negotiate a Potential Transaction and (b) are bound by\nobligations of confidentiality at least as restrictive as the provisions hereof: (i) the existence and terms of this Agreement, and the fact that\nConfidential Information has been made available to Amgen or any of its Representatives and (ii) the fact that discussions or negotiations are or may\nbe taking place between the Parties with respect to a Potential Transaction, and the proposed terms of any such transaction.\n14. Term.\nThis Agreement will become effective on the date of this Agreement and terminate on the date that is eighteen months from the Effective Date\n(the “Term”); provided, however, that (a) the obligations contained in this Agreement with respect to Confidential Information other than IP\nInformation and Collaboration Information (each as defined below) disclosed during the Term will survive any expiration or termination of this\nAgreement until the sixth anniversary of the termination date, at which time they shall terminate and (b) the obligations contained in this Agreement\nwith respect to IP Information (as defined below) disclosed during the Term shall survive any expiration or termination of this Agreement until the\ntenth anniversary of the\n8\ntermination date, at which time they shall terminate, and (c) the obligations contained in this Agreement with respect to Collaboration Information\n(as defined below) disclosed during the Term will survive any expiration or termination of the Agreement until the later to occur of (i) the date that is\nthe sixth anniversary of the Effective Date and (ii) the date that Micromet is no longer subject to any obligation of confidentiality existing as of the\nEffective Date in respect of such information under a Third Party Collaboration Agreement (as defined below), provided that Micromet has disclosed\nto Amgen all applicable provisions under any partnering or collaboration agreement with any third Person covering the Collaboration Information, at\nwhich time all obligations in respect of Collaboration Information shall terminate. “IP Information” shall mean shall mean any Confidential\nInformation that includes know how, trade secrets, unpublished patent applications, invention disclosures and prosecution histories, and technical\ndata. “Collaboration Information” shall mean any Confidential Information in respect of which Micromet has an obligation of confidentiality to a\nthird Person under any partnering or collaboration agreement between Micromet and such third Person as of the date hereof (each a “Third Party\nCollaboration Agreement”).\n15. Miscellaneous.\n(a) “Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under\ncommon control with a Party. For purposes of this definition only, “control” and, with correlative meanings, the terms “controlled by” and “under\ncommon control with” means (a) the possession, directly or indirectly, of the power to direct the management or policies of an entity, whether\nthrough the ownership of voting securities, contract rights, voting rights, corporate governance or otherwise, or (b) the ownership, directly or\nindirectly, of more than 50% of the voting securities or other ownership interest of an entity entitled to vote in the election of directors or similar\ngoverning body.\n(b) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) an\nAffiliate of such Party, or (ii) an officer, director, employee, partner, attorney, accountant, consultant, advisor, agent or representative of such Party or\nof any of such Party’s Affiliates; provided that Representatives shall not include Excluded Representatives.\n(c) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(d) The bold-faced captions appearing in this Agreement have been included only for convenience and will not affect or be taken into\naccount in the interpretation of this Agreement.\n(e) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n9\n(f) By making Confidential Information or other information available to Amgen or Amgen’s Representatives, Micromet is not, and will\nnot be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright,\ntrademark or other proprietary or intellectual property right.\n(g) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, arbitration or dispute, it is acknowledged and agreed that Amgen and Micromet have a commonality of interest with\nrespect to such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and will not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work\nproduct doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine will remain entitled to protection thereunder and will be entitled to\nprotection under the joint defense doctrine, and Amgen agrees to take all commercially reasonable measures necessary to preserve, to the fullest\nextent possible, the applicability of all such privileges or doctrines.\n(h) This Agreement constitutes the entire agreement between Amgen and Micromet regarding the subject matter hereof and supersedes\nany prior agreement between Amgen and Micromet regarding the subject matter hereof.\n[SIGNATURES ON NEXT PAGE]\n10\nThe Parties have caused this Agreement to be executed as of the Effective Date.\nAMGEN INC.\nMICROMET, INC.\nBy: /s/ David Piacquad\nBy: /s/ Jens Hennecke\nName: David Piacquad\nName: Jens Hennecke, Ph.D.\nTitle: Vice President, Strategy and\nTitle: Senior Vice President,\nCorporate Development\nBusiness Development\n11
c4ccca5a5502597fc4a75b4ca50337df.pdf	effective_date jurisdiction party term	EX-99.(D)(12) 18 f68556ex99-d12.txt (D)(12) 1 EXHIBIT (d)(12) August 1, 1991 CNDA#18694 CORPORATE NON-\nDISCLOSURE AGREEMENT This Agreement is entered into and made effective as of the date set forth above by and\nbetween Intel Corporation (hereinafter "Intel"), and the participant identified below (hereinafter "Participant"). Unless\nthe Participant indicates that this Agreement shall apply only to a specific division or location, this Agreement shall\napply to the Participant's entire company. THE PARTIES AGREE AS FOLLOWS: CONFIDENTIAL INFORMATION\nTRANSMITTAL FORM. The confidential, proprietary and trade secret information of the disclosing party (hereinafter\n"Confidential Information") provided hereunder, is that information described in the Confidential Information\nTransmittal Record (CITR) form executed from time to time hereafter. CITR's are subject to the terms of this Agreement\nand shall be executed by the parties prior to the disclosure of Confidential Information. All information described in a\nCITR and marked with a "confidential," "proprietary," or similar legend shall be deemed Confidential Information. All\nConfidential Information received from the disclosing party shall be in tangible form. The CITR shall set forth the\ndisclosing party, a description of the Confidential Information disclosed, the names of the representatives of the parties\nand the date when the disclosure covered by the CITR commenced. OBLIGATIONS OF RECEIVING PARTY. The\nreceiving party shall not disclose Confidential Information to any third party without the prior written approval of the\ndisclosing party. The receiving party shall maintain the Confidential Information with at least the same degree of care\nthat the receiving party uses to protect its own similar categories of confidential and proprietary information, but no less\nthan a reasonable degree of care under the circumstances. The receiving party shall not make any copies of Confidential\nInformation received from the disclosing party except as necessary for its employees with a need to know. Any copies\nwhich are made shall be identified as belonging to the disclosing party and marked "confidential," "proprietary," or with\na similar legend. PERIOD OF CONFIDENTIALITY. Unless a shorter period is stated in the applicable CITR, the\ndisclosing party will not assert any claims against the receiving party for disclosures of Confidential Information made\nmore than five (5) years from the date of the CITR. TERMINATION OF OBLIGATION OF CONFIDENTIALITY. The\nreceiving party shall not be liable for the disclosure of any Confidential Information which is: (a) in the public domain\nother than by a breach of this Agreement on the part of the receiving party; or (b) rightfully received from a third party\nwithout any obligation of confidentiality; or (c) rightfully known to the receiving party without any limitation on use or\ndisclosure prior to its receipt from the disclosing party; or (d) independently developed by employees of the receiving\nparty; or (e) generally made available to third parties by the disclosing party without restriction on disclosure. TITLE.\nTitle or the right to possess Confidential Information as between the parties shall remain in the disclosing party. NO\nOBLIGATION OF DISCLOSURE. Neither party has any obligation to disclose Confidential Information to the other.\nEither party may, at any time, cease giving Confidential Information to the other party without any liability or request in\nwriting the return of Confidential Information previously disclosed. TERMINATION AND DUTY TO RETURN. Either\nparty may terminate this Agreement at any time without cause upon notice to the other party. However, all obligations of\nconfidentiality shall survive the termination of this Agreement. In the event this Agreement is terminated, and the\ndisclosing party so requests, the receiving party shall promptly return or destroy (and certify destruction of) all\nConfidential Information which it received from the disclosing party along with all copies which it made. GENERAL.\n(a) This Agreement is neither intended to nor shall it be construed as creating a joint venture, partnership or other form\nof business association between the parties, nor an obligation to buy or sell products using or incorporating the\nConfidential Information, nor as creating an implied or express license grant from either party to the other. (b) The\nfailure of either party to enforce any right resulting from breach of any provision of this Agreement by the other party\nshall not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right\nhereunder. (c) This Agreement shall be governed by the laws of the State of California. (d) This Agreement, any\naccompanying CITR and CITRs executed from time to time hereafter which incorporate the terms of this Agreement\nconstitute the entire agreement, written or verbal, between the parties with respect to the disclosure(s) of Confidential\nInformation described in each CITR. This Agreement may not be amended except in writing signed by a duly authorized\nrepresentative of the respective parties. Any other agreements between the parties, including non-disclosure agreements,\nshall not be affected by this Agreement. AGREED: PARTICIPANT: XIRCOM -------------------------------------------\nINTEL CORPORATION (Company Name, Division/Sub, if applicable) 3065 Bowers Avenue Santa Clara, CA 95052\n26025 Mureau Road -------------------------------------------------------- (Address) Calabasas CA 91302 -------------------------\n-- -- - -- - -- - -- - -- - -- - -- - -- - -- - -- (City) (State) (Zip) /s/ CARL EVERETT /s/ JEROME P. CHERWINSKI -------------------------\n------- -------------------------------------------------------- Signature Signature CARL EVERETTJEROMEP.CHERWINSKI\n-------------------------------- -------------------------------------------------------- PrintedName PrintedName VICE\nPRESIDENT-DIRECTOR OF SALES V.P. ENG. 230-0000-30 (7/90) -------------------------------- ----------------------------\n---------------------------- TitleTitle\nSEND TO: CORPORATE CONTRACT MANAGEMENT, FM 1-03	EX-99.(D)(12) 18 f68556ex99-d12.txt (D)(12) 1 EXHIBIT (d)(12) August 1, 1991 CNDA#18694 CORPORATE NON-\nDISCLOSURE AGREEMENT This Agreement is entered into and made effective as of the date set forth above by and\nbetween Intel Corporation (hereinafter "Intel"), and the participant identified below (hereinafter "Participant”). Unless\nthe Participant indicates that this Agreement shall apply only to a specific division or location, this Agreement shall\napply to the Participant's entire company. THE PARTIES AGREE AS FOLLOWS: CONFIDENTIAL INFORMATION\nTRANSMITTAL FORM. The confidential, proprietary and trade secret information of the disclosing party (hereinafter\n"Confidential Information") provided hereunder, is that information described in the Confidential Information\nTransmittal Record (CITR) form executed from time to time hereafter. CITR's are subject to the terms of this Agreement\nand shall be executed by the parties prior to the disclosure of Confidential Information. All information described in a\nCITR and marked with a "confidential," "proprietary," or similar legend shall be deemed Confidential Information. All\nConfidential Information received from the disclosing party shall be in tangible form. The CITR shall set forth the\ndisclosing party, a description of the Confidential Information disclosed, the names of the representatives of the parties\nand the date when the disclosure covered by the CITR commenced. OBLIGATIONS OF RECEIVING PARTY. The\nreceiving party shall not disclose Confidential Information to any third party without the prior written approval of the\ndisclosing party. The receiving party shall maintain the Confidential Information with at least the same degree of care\nthat the receiving party uses to protect its own similar categories of confidential and proprietary information, but no less\nthan a reasonable degree of care under the circumstances. The receiving party shall not make any copies of Confidential\nInformation received from the disclosing party except as necessary for its employees with a need to know. Any copies\nwhich are made shall be identified as belonging to the disclosing party and marked "confidential," "proprietary,” or with\na similar legend. PERIOD OF CONFIDENTIALITY. Unless a shorter period is stated in the applicable CITR, the\ndisclosing party will not assert any claims against the receiving party for disclosures of Confidential Information made\nmore than five (5) years from the date of the CITR. TERMINATION OF OBLIGATION OF CONFIDENTIALITY. The\nreceiving party shall not be liable for the disclosure of any Confidential Information which is: (a) in the public domain\nother than by a breach of this Agreement on the part of the receiving party; or (b) rightfully received from a third party\nwithout any obligation of confidentiality; or (c) rightfully known to the receiving party without any limitation on use or\ndisclosure prior to its receipt from the disclosing party; or (d) independently developed by employees of the receiving\nparty; or (e) generally made available to third parties by the disclosing party without restriction on disclosure. TITLE.\nTitle or the right to possess Confidential Information as between the parties shall remain in the disclosing party. NO\nOBLIGATION OF DISCLOSURE. Neither party has any obligation to disclose Confidential Information to the other.\nEither party may, at any time, cease giving Confidential Information to the other party without any liability or request in\nwriting the return of Confidential Information previously disclosed. TERMINATION AND DUTY TO RETURN. Either\nparty may terminate this Agreement at any time without cause upon notice to the other party. However, all obligations of\nconfidentiality shall survive the termination of this Agreement. In the event this Agreement is terminated, and the\ndisclosing party so requests, the receiving party shall promptly return or destroy (and certify destruction of) all\nConfidential Information which it received from the disclosing party along with all copies which it made. GENERAL.\n(a) This Agreement is neither intended to nor shall it be construed as creating a joint venture, partnership or other form\nof business association between the parties, nor an obligation to buy or sell products using or incorporating the\nConfidential Information, nor as creating an implied or express license grant from either party to the other. (b) The\nfailure of either party to enforce any right resulting from breach of any provision of this Agreement by the other party\nshall not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right\nhereunder. (c) This Agreement shall be governed by the laws of the State of California. (d) This Agreement, any\naccompanying CITR and CITRs executed from time to time hereafter which incorporate the terms of this Agreement\nconstitute the entire agreement, written or verbal, between the parties with respect to the disclosure(s) of Confidential\nInformation described in each CITR. This Agreement may not be amended except in writing signed by a duly authorized\nrepresentative of the respective parties. Any other agreements between the parties, including non-disclosure agreements,\nshall not be affected by thlS Agreement AG—RE—E—B—PAR:PI-GI-PANT%H-RGGM————————————————\n	EX-99.(D)(12) 18 f68556ex99-d12.tx (D)(12) 1 EXHIBIT (d)(12) August 1, 1991 CNDA#18694 CORPORATE NON-\nDISCLOSURE AGREEMENT This Agreement is entered into and made effective as of the date set forth above by and\nbetween Intel Corporation (hereinafter "Intel"), and the participant identified below (hereinafter "Participant"). Unless\nthe Participant indicates that this Agreement shall apply only to a specific division or location, this Agreement shall\napply to the Participant's entire company. THE PARTIES AGREE AS FOLLOWS: CONFIDENTIAL INFORMATION\nTRANSMITTAL FORM. The confidential, proprietary and trade secret information of the disclosing party (hereinafter\n"Confidential Information") provided hereunder, is that information described in the Confidential Information\nTransmittal Record (CITR) form executed from time to time hereafter. CITR's are subject to the terms of this Agreement\nand shall be executed by the parties prior to the disclosure of Confidential Information. All information described in a\nCITR and marked with a "confidential," "proprietary," or similar legend shall be deemed Confidential Information. All\nConfidential Information received from the disclosing party shall be in tangible form The CITR shall set forth the\ndisclosing party, a description of the Confidential Information disclosed, the names of the representatives of the parties\nand\nthe\ndate\nwhen\nthe\ndisclosure\ncovered\nby\nthe\nCITR\ncommenced.\nOBLIGATIONS\nOF\nRECEIVING\nPARTY.\nThe\nreceiving party shall not disclose Confidential Information to any third party without the prior written approval of the\ndisclosing party. The receiving party shall maintain the Confidential Information with at least the same degree of care\nthat the receiving party uses to protect its own similar categories of confidential and proprietary information, but no less\nthan a reasonable degree of care under the circumstances. The receiving party shall not make any copies of Confidential\nInformation\nreceived\nfrom\nthe\ndisclosing\nparty\nexcept\nas\nnecessary\nfor\nits\nemployees\nwith\na\nneed\nto\nknow.\nAny\ncopies\nwhich are made shall be identified as belonging to the disclosing party and marked "confidential," "proprietary," or with\na similar legend. PERIOD OF CONFIDENTIALITY. Unless a shorter period is stated in the applicable CITR, the\ndisclosing party will not assert any claims against the receiving party for disclosures of Confidential Information made\nmore than five (5) years from the date of the CITR. TERMINATION OF OBLIGATION OF CONFIDENTIALITY The\nreceiving party shall not be liable for the disclosure of any Confidential Information which is: (a) in the public domain\nother than by a breach of this Agreement on the part of the receiving party; or (b) rightfully received from a third party\nwithout any obligation of confidentiality; or (c) rightfully known to the receiving party without any limitation on use or\ndisclosure prior to its receipt from the disclosing party; or (d) independently developed by employees of the receiving\nparty; or (e) generally made available to third parties by the disclosing party without restriction on disclosure. TITLE.\nTitle or the right to possess Confidential Information as between the parties shall remain in the disclosing party. NO\nOBLIGATION OF DISCLOSURE. Neither party has any obligation to disclose Confidential Information to the other.\nEither party may, at any time, cease giving Confidential Information to the other party without any liability or request in\nwriting\nthe\nreturn\nof\nConfidential\nInformation\npreviously\ndisclosed.\nTERMINATION\nAND\nDUTY\nTO\nRETURN.\nEither\nparty may terminate this Agreement at any time without cause upon notice to the other party. However, all obligations\nof\nconfidentiality shall survive the termination of this Agreement. In the event this Agreement is terminated, and the\ndisclosing party SO requests, the receiving party shall promptly return or destroy (and certify destruction of) all\nConfidential Information which it received from the disclosing party along with all copies which it made. GENERAL.\n(a) This Agreement is neither intended to nor shall it be construed as creating a joint venture, partnership or other form\nof business association between the parties, nor an obligation to buy or sell products using or incorporating the\nConfidential Information, nor as creating an implied or express license grant from either party to the other. (b) The\nfailure of either party to enforce any right resulting from breach of any provision of this Agreement by the other party\nshall not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right\nhereunder. (c) This Agreement shall be governed by the laws of the State of California. (d) This Agreement, any\naccompanying CITR and CITRs executed from time to time hereafter which incorporate the terms of this Agreement\nconstitute the entire agreement, written or verbal, between the parties with respect to the disclosure(s) of Confidential\nInformation described in each CITR. This Agreement may not be amended except in writing signed by a duly authorized\nrepresentative of the respective parties. Any other agreements between the parties, including non-disclosure agreements,\nshall not be affected by this Agreement. AGREED: XHREOM\nName, if pplieable) 3065 Bowers Avenue Santa\nElara,\nEA\n95052\n26025- Read\nAddress) Calabasas EA 91302\n(City) (State) (Zip) Ist CARL 4st\nSignature\nName\nOF (790)\nTitle Title	EX-99.(D)(12) 18 f68556ex99-d12.txt (D)(12) 1 EXHIBIT (d)(12) August 1, 1991 CNDA#18694 CORPORATE NON-\nDISCLOSURE AGREEMENT This Agreement is entered into and made effective as of the date set forth above by and\nbetween Intel Corporation (hereinafter "Intel"), and the participant identified below (hereinafter "Participant"). Unless\nthe Participant indicates that this Agreement shall apply only to a specific division or location, this Agreement shall\napply to the Participant's entire company. THE PARTIES AGREE AS FOLLOWS: CONFIDENTIAL INFORMATION\nTRANSMITTAL FORM. The confidential, proprietary and trade secret information of the disclosing party (hereinafter\n"Confidential Information") provided hereunder, is that information described in the Confidential Information\nTransmittal Record (CITR) form executed from time to time hereafter. CITR's are subject to the terms of this Agreement\nand shall be executed by the parties prior to the disclosure of Confidential Information. All information described in a\nCITR and marked with a "confidential," "proprietary," or similar legend shall be deemed Confidential Information. All\nConfidential Information received from the disclosing party shall be in tangible form. The CITR shall set forth the\ndisclosing party, a description of the Confidential Information disclosed, the names of the representatives of the parties\nand the date when the disclosure covered by the CITR commenced. OBLIGATIONS OF RECEIVING PARTY. The\nreceiving party shall not disclose Confidential Information to any third party without the prior written approval of the\ndisclosing party. The receiving party shall maintain the Confidential Information with at least the same degree of care\nthat the receiving party uses to protect its own similar categories of confidential and proprietary information, but no less\nthan a reasonable degree of care under the circumstances. The receiving party shall not make any copies of Confidential\nInformation received from the disclosing party except as necessary for its employees with a need to know. Any copies\nwhich are made shall be identified as belonging to the disclosing party and marked "confidential," "proprietary," or with\na similar legend. PERIOD OF CONFIDENTIALITY. Unless a shorter period is stated in the applicable CITR, the\ndisclosing party will not assert any claims against the receiving party for disclosures of Confidential Information made\nmore than five (5) years from the date of the CITR. TERMINATION OF OBLIGATION OF CONFIDENTIALITY. The\nreceiving party shall not be liable for the disclosure of any Confidential Information which is: (a) in the public domain\nother than by a breach of this Agreement on the part of the receiving party; or (b) rightfully received from a third party\nwithout any obligation of confidentiality; or (c) rightfully known to the receiving party without any limitation on use or\ndisclosure prior to its receipt from the disclosing party; or (d) independently developed by employees of the receiving\nparty; or (e) generally made available to third parties by the disclosing party without restriction on disclosure. TITLE.\nTitle or the right to possess Confidential Information as between the parties shall remain in the disclosing party. NO\nOBLIGATION OF DISCLOSURE. Neither party has any obligation to disclose Confidential Information to the other.\nEither party may, at any time, cease giving Confidential Information to the other party without any liability or request in\nwriting the return of Confidential Information previously disclosed. TERMINATION AND DUTY TO RETURN. Either\nparty may terminate this Agreement at any time without cause upon notice to the other party. However, all obligations of\nconfidentiality shall survive the termination of this Agreement. In the event this Agreement is terminated, and the\ndisclosing party so requests, the receiving party shall promptly return or destroy (and certify destruction of) all\nConfidential Information which it received from the disclosing party along with all copies which it made. GENERAL.\n(a) This Agreement is neither intended to nor shall it be construed as creating a joint venture, partnership or other form\nof business association between the parties, nor an obligation to buy or sell products using or incorporating the\nConfidential Information, nor as creating an implied or express license grant from either party to the other. (b) The\nfailure of either party to enforce any right resulting from breach of any provision of this Agreement by the other party\nshall not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right\nhereunder. (c) This Agreement shall be governed by the laws of the State of California. (d) This Agreement, any\naccompanying CITR and CITRs executed from time to time hereafter which incorporate the terms of this Agreement\nconstitute the entire agreement, written or verbal, between the parties with respect to the disclosure(s) of Confidential\nInformation described in each CITR. This Agreement may not be amended except in writing signed by a duly authorized\nrepresentative of the respective parties. Any other agreements between the parties, including non-disclosure agreements,\nshall not be affected by this Agreement. AGREED: PARTICIPANT: XIRCOM -------------------------------------------\nINTEL CORPORATION (Company Name, Division/Sub, if applicable) 3065 Bowers Avenue Santa Clara, CA 95052\n26025 Mureau Road -------------------------------------------------------- (Address) Calabasas CA 91302 -------------------------\n-- -- - -- - -- - -- - -- - -- - -- - -- - -- - -- (City) (State) (Zip) /s/ CARL EVERETT /s/ JEROME P. CHERWINSKI -------------------------\n------- -------------------------------------------------------- Signature Signature CARL EVERETTJEROMEP.CHERWINSKI\n-------------------------------- -------------------------------------------------------- PrintedName PrintedName VICE\nPRESIDENT-DIRECTOR OF SALES V.P. ENG. 230-0000-30 (7/90) -------------------------------- ----------------------------\n---------------------------- TitleTitle\nSEND TO: CORPORATE CONTRACT MANAGEMENT, FM 1-03
c58882f7f9c693e3f6c11d0f945f395e.pdf	effective_date jurisdiction party term	EX-10.22 2 dex1022.htm NON-DISCLOSURE, NON-SOLICITATION AND NON -COMPETITION AGREEMENT\nEXHIBIT 10.22\nNON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your employment (or continued employment) with or provision of services to J. Crew Group, Inc. and its affiliates\n(collectively, the “Company”) and for other good and valuable consideration, receipt of which is hereby acknowledged, you agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as “Confidential Information.” You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked “confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”) compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the goodwill and\nbusiness of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the Company’s employ and for\nthe period of twelve months after the termination of your employment, for any reason whatsoever (including “Good Reason,” as defined below), you\nshall not directly or indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company and communicated to you from time\nto time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause or For Good Reason. Should your employment be (a) terminated by the Company without “Cause,” as\ndefined below, or terminated by you for “Good Reason,” as defined below; and (b) the Company does not consent to waive any of the post-\nemployment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to Company a Separation Agreement and Release in a\nform acceptable to the Company, and you do not revoke the Separation Agreement and Release, the Company will pay you a severance payment\nequal to (i) a pro-rata portion of the bonus, if any, to which you would have otherwise been entitled as of the date of termination, to be paid, less all\napplicable deductions, according to the Company’s normal bonus payment schedule (bonuses are generally paid in mid-April after the end of the\nfiscal year); (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable deductions, according to the Company’s normal\npayroll practices for a period coextensive with the restricted period (twelve months); and (iii) during the restricted period, reimbursement for out-of-\npocket COBRA payments paid by you to continue your group health benefits, provided you submit relevant supporting documentation to the\nCompany evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments shall\nterminate effective immediately upon the date that you become employed by another entity as an employee, consultant or otherwise, and you agree\nto notify the Senior Vice-President of Human Resources in writing prior to the effective date of any such employment. If you fail to so notify the\nSenior Vice-President of Human Resources, (a) you will forfeit your right to receive the payments described above (to the extent the payments were\nnot theretofore paid) and (b) the Company shall be entitled to recover any payments already made to you or on your behalf.\nFor purposes of this agreement, “Cause” shall mean gross incompetence; failure to comply with the Company’s policies including those\ncontained in the Company’s Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving dishonesty or moral\nturpitude; participation in any act of misconduct, insubordination or fraud against the Company; use of alcohol or drugs which interferes with your\nperformance of your duties or compromises the integrity or reputation of the Company; and excessive absence from work other than as a result of\ndisability. For purposes of this agreement, “Good Reason” shall mean either of the following: (i) any requirement by the Company that you report\ndirectly to an individual other than an Executive Vice-President or functional equivalent or (ii) any action by the Company that results in a material\nand continuing diminution in your duties or responsibilities, in each case without your consent and provided that the Company will have at least 30\ndays to remedy such situation. No payment will be required if the Company consents in its sole discretion to request by you to waive the post-\ntermination restrictions on your employment contained in paragraph 2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment Without Good Reason. If the Company terminates your employment and such\ntermination is for “Cause,” as defined above, or if you resign your employment for any reason other than for “Good Reason,” as defined above, then\nthe Company shall pay you all wages due through the termination date. In the event of termination for Cause or your resignation other than for Good\nReason, the Company will not pay any severance, and the restrictions contained in paragraph 2(a) above will remain in full force and effect unless\nwaived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company’s request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 3 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n6. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be\ncumulative with those remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by\nyou, the Company shall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief\nincluding, without limitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as\nreimbursement from you for any attorneys’ fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement\nof any legal or equitable remedy shall be construed as a waiver or prohibition against pursuing any other legal or equitable remedies in the event of a\nthreatened or actual breach of this agreement by you.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n9. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\nAGREED TO AND ACCEPTED:\nSignature:\n/s/ Libby Wadle\nPrint Name:\nLibby Wadle\nLibby Wadle\nDate:\n8/8/06\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON -COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nA&F Brands\nAnn Taylor\nAmerican Eagle Outfitters Brands\nArmani Exchange\nBarney’s\nBrooks Brothers\nCalvin Klein\nChildren’s Place\nCoach\nCole Haan\nEddie Bauer\nGap Brands\nGymboree Brands\nLimited Brands\nLucky Brand\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nUrban Outfitters\nAny retail apparel start-up operated by one of the above companies	EX-10.22 2 dex1022.htm NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION AGREEMENT\nEXHIBIT 10.22\nNON-DISCI.OSURE, NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your employment (or continued employment) with or provision of services to J. Crew Group, Inc. and its affiliates\n(collectively, the “Company”) and for other good and valuable consideration, receipt of which is hereby acknowledged, you agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as “Confidential Information.” You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked “confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”) compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the goodwill and\nbusiness of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the Company’s employ and for\nthe period of twelve months after the termination of your employment, for any reason whatsoever (including “Good Reason,” as defined below), you\nshall not directly or indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company and communicated to you from time\nto time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause or For Good Reason. Should your employment be (a) terminated by the Company without “Cause,” as\ndefined below, or terminated by you for “Good Reason,” as defined below; and (b) the Company does not consent to waive any of the post-\nemployment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to Company a Separation Agreement and Release in a\nform acceptable to the Company, and you do not revoke the Separation Agreement and Release, the Company will pay you a severance payment\nequal to (i) a pro-rata portion of the bonus, if any, to which you would have otherwise been entitled as of the date of termination, to be paid, less all\napplicable deductions, according to the Company’s normal bonus payment schedule (bonuses are generally paid in mid-April after the end of the\nfiscal year); (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable deductions, according to the Company’s normal\npayroll practices for a period coextensive with the restricted period (twelve months); and (iii) during the restricted period, reimbursement for out-of-\npocket COBRA payments paid by you to continue your group health benefits, provided you submit relevant supporting documentation to the\nCompany evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments shall\nterminate effective immediately upon the date that you become employed by another entity as an employee, consultant or otherwise, and you agree\nto notify the Senior Vice-President of Human Resources in writing prior to the effective date of any such employment. If you fail to so notify the\nSenior Vice-President of Human Resources, (a) you will forfeit your right to receive the payments described above (to the extent the payments were\nnot theretofore paid) and (b) the Company shall be entitled to recover any payments already made to you or on your behalf.\nFor purposes of this agreement, “Cause” shall mean gross incompetence; failure to comply with the Company’s policies including those\ncontained in the Company’s Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving dishonesty or moral\nturpitude; participation in any act of misconduct, insubordination or fraud against the Company; use of alcohol or drugs which interferes with your\nperformance of your duties or compromises the integrity or reputation of the Company; and excessive absence from work other than as a result of\ndisability. For purposes of this agreement, “Good Reason” shall mean either of the following: (i) any requirement by the Company that you report\ndirectly to an individual other than an Executive Vice-President or functional equivalent or (ii) any action by the Company that results in a material\nand continuing diminution in your duties or responsibilities, in each case without your consent and provided that the Company will have at least 30\ndays to remedy such situation. No payment will be required if the Company consents in its sole discretion to request by you to waive the post-\ntermination restrictions on your employment contained in paragraph 2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment Without Good Reason. If the Company terminates your employment and such\ntermination is for “Cause,” as defined above, or if you resign your employment for any reason other than for “Good Reason,” as defined above, then\nthe Company shall pay you all wages due through the termination date. In the event of termination for Cause or your resignation other than for Good\nReason, the Company will not pay any severance, and the restrictions contained in paragraph 2(a) above will remain in full force and effect unless\nwaived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company’s request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 3 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n6. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be\ncumulative with those remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by\nyou, the Company shall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief\nincluding, without limitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as\nreimbursement from you for any attorneys’ fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement\nof any legal or equitable remedy shall be construed as a waiver or prohibition against pursuing any other legal or equitable remedies in the event of a\nthreatened or actual breach of this agreement by you.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n9. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\nAGREED TO AND ACCEPTED:\nSignature: /s/ Libby Wadle Print Name: Libby Wadle\nLibby Wadle\nDate: 8/8/06\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nA&F Brands\nAnn Taylor\nAmerican Eagle Outfitters Brands\nArmani Exchange\nBarney’s\nBrooks Brothers\nCalvin Klein\nChildren’s Place\nCoach\nCole Haan\nEddie Bauer\nGap Brands\nGymboree Brands\nLimited Brands\nLucky Brand\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nUrban Outfitters\nAny retail apparel start-up operated by one of the above companies	EX-10.22 2 ex1022.htm NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION AGREEMENT\nEXHIBIT 10.22\nNON-DISCLOSURE NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your employment (or continued employment) with or provision of services to J. Crew Group, Inc. and its affiliates\n(collectively, the "Company") and for other good and valuable consideration, receipt of which is hereby acknowledged, you agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or\ncontracts\nbetween\nthe\nCompany\nand\nits\nvendors\nand\nsuppliers,\nthe\nCompany's\nmerchandising,\nmarketing\nand/or\ncreative\npolicies,\npractices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as "Confidentia Information." You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked "confidential."\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the "material") compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof\nconfidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to\nthe\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the goodwill and\nbusiness of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the Company's employ and for\nthe period of twelve months after the termination of your employment, for any reason whatsoever (including "Good Reason," as defined below),\nyou\nshall not directly or indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company and communicated to you from time\nto time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause or For Good Reason. Should your employment be (a) terminated by the Company without "Cause," as\ndefined below, or terminated by you for "Good Reason," as defined below; and (b) the Company does not consent to waive any of the post-\nemployment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to Company a Separation Agreement and Release in a\nform acceptable to the Company, and you do not revoke the Separation Agreement and Release, the Company will pay you a severance payment\nequal to (i) a pro-rata portion of the bonus, if any, to which you would have otherwise been entitled as of the date of termination, to be paid, less all\napplicable deductions, according to the Company's normal bonus payment schedule (bonuses are generally paid in mid-April after the end of the\nfiscal year); (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable deductions, according to the Company's normal\npayroll practices for a period coextensive with the restricted period (twelve months); and (iii) during the restricted period, reimbursement for out-of-\npocket COBRA payments paid by you to continue your group health benefits, provided you submit relevant supporting documentation to the\nCompany evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments shall\nterminate effective immediately upon the date that you become employed by another entity as an employee, consultant or otherwise, and you agree\nto notify the Senior Vice-President of Human Resources in writing prior to the effective date of any such employment. If you fail to so notify\nthe\nSenior Vice-President of Human Resources, (a) you will forfeit your right to receive the payments described above (to the extent the payments were\nnot theretofore paid) and (b) the Company shall be entitled to recover any payments already made to you or on your behalf.\nFor purposes of this agreement, "Cause" shall mean gross incompetence; failure to comply with the Company's policies including those\ncontained in the Company's Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving dishonesty or moral\nturpitude; participation in any act of misconduct, insubordination or fraud against the Company; use of alcohol or drugs which interferes with your\nperformance of your duties or compromises the integrity or reputation of the Company; and excessive absence from work other than as a result of\ndisability. For purposes of this agreement, "Good Reason" shall mean either of the following: (i) any requirement by the Company that you report\ndirectly to an individual other than an Executive Vice-President or functional equivalent or (ii) any action by the Company that results in a material\nand continuing diminution in your duties or responsibilities, in each case without your consent and provided that the Company will have at least 30\ndays to remedy such situation. No payment will be required if the Company consents in its sole discretion to request by you to waive the post-\ntermination restrictions on your employment contained in paragraph 2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment Without Good Reason. If the Company terminates your employment and such\ntermination is for "Cause," as defined above, or if you resign your employment for any reason other than for "Good Reason," as defined above, then\nthe Company shall pay you all wages due through the termination date. In the event of termination for Cause or your resignation other than for Good\nReason, the Company will not pay any severance, and the restrictions contained in paragraph 2(a) above will remain in full force and effect unless\nwaived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company's request upon or in advance of the termination of this agreement, you will enter into discussions\nto\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 3 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n6.\nInjunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be\ncumulative with those remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by\nyou, the Company shall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief\nincluding, without limitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as\nreimbursement from you for any attorneys' fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement\nof any legal or equitable remedy shall be construed as a waiver or prohibition against pursuing any other legal or equitable remedies in the event of\na\nthreatened or actual breach of this agreement by you.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n9. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\nAGREED TO AND ACCEPTED:\nSignature:\n/s/ Libby Wadle\nPrint Name:\nLibby Wadle\nLibby Wadle\nDate:\n8/8/06\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nA&F Brands\nAnn Taylor\nAmerican Eagle OutfitterS Brands\nArmani Exchange\nBarney's\nBrooks Brothers\nCalvin Klein\nChildren's Place\nCoach\nCole Haan\nEddie Bauer\nGap Brands\nGymboree Brands\nLimited Brands\nLucky Brand\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nUrban Outfitters\nAny retail apparel start-up operated by one of the above companies	EX-10.22 2 dex1022.htm NON-DISCLOSURE, NON-SOLICITATION AND NON -COMPETITION AGREEMENT\nEXHIBIT 10.22\nNON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your employment (or continued employment) with or provision of services to J. Crew Group, Inc. and its affiliates\n(collectively, the “Company”) and for other good and valuable consideration, receipt of which is hereby acknowledged, you agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as “Confidential Information.” You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked “confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”) compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the goodwill and\nbusiness of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the Company’s employ and for\nthe period of twelve months after the termination of your employment, for any reason whatsoever (including “Good Reason,” as defined below), you\nshall not directly or indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company and communicated to you from time\nto time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause or For Good Reason. Should your employment be (a) terminated by the Company without “Cause,” as\ndefined below, or terminated by you for “Good Reason,” as defined below; and (b) the Company does not consent to waive any of the post-\nemployment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to Company a Separation Agreement and Release in a\nform acceptable to the Company, and you do not revoke the Separation Agreement and Release, the Company will pay you a severance payment\nequal to (i) a pro-rata portion of the bonus, if any, to which you would have otherwise been entitled as of the date of termination, to be paid, less all\napplicable deductions, according to the Company’s normal bonus payment schedule (bonuses are generally paid in mid-April after the end of the\nfiscal year); (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable deductions, according to the Company’s normal\npayroll practices for a period coextensive with the restricted period (twelve months); and (iii) during the restricted period, reimbursement for out-of-\npocket COBRA payments paid by you to continue your group health benefits, provided you submit relevant supporting documentation to the\nCompany evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments shall\nterminate effective immediately upon the date that you become employed by another entity as an employee, consultant or otherwise, and you agree\nto notify the Senior Vice-President of Human Resources in writing prior to the effective date of any such employment. If you fail to so notify the\nSenior Vice-President of Human Resources, (a) you will forfeit your right to receive the payments described above (to the extent the payments were\nnot theretofore paid) and (b) the Company shall be entitled to recover any payments already made to you or on your behalf.\nFor purposes of this agreement, “Cause” shall mean gross incompetence; failure to comply with the Company’s policies including those\ncontained in the Company’s Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving dishonesty or moral\nturpitude; participation in any act of misconduct, insubordination or fraud against the Company; use of alcohol or drugs which interferes with your\nperformance of your duties or compromises the integrity or reputation of the Company; and excessive absence from work other than as a result of\ndisability. For purposes of this agreement, “Good Reason” shall mean either of the following: (i) any requirement by the Company that you report\ndirectly to an individual other than an Executive Vice-President or functional equivalent or (ii) any action by the Company that results in a material\nand continuing diminution in your duties or responsibilities, in each case without your consent and provided that the Company will have at least 30\ndays to remedy such situation. No payment will be required if the Company consents in its sole discretion to request by you to waive the post-\ntermination restrictions on your employment contained in paragraph 2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment Without Good Reason. If the Company terminates your employment and such\ntermination is for “Cause,” as defined above, or if you resign your employment for any reason other than for “Good Reason,” as defined above, then\nthe Company shall pay you all wages due through the termination date. In the event of termination for Cause or your resignation other than for Good\nReason, the Company will not pay any severance, and the restrictions contained in paragraph 2(a) above will remain in full force and effect unless\nwaived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company’s request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 3 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n6. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be\ncumulative with those remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by\nyou, the Company shall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief\nincluding, without limitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as\nreimbursement from you for any attorneys’ fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement\nof any legal or equitable remedy shall be construed as a waiver or prohibition against pursuing any other legal or equitable remedies in the event of a\nthreatened or actual breach of this agreement by you.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n9. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\nAGREED TO AND ACCEPTED:\nSignature:\n/s/ Libby Wadle\nPrint Name:\nLibby Wadle\nLibby Wadle\nDate:\n8/8/06\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON -COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nA&F Brands\nAnn Taylor\nAmerican Eagle Outfitters Brands\nArmani Exchange\nBarney’s\nBrooks Brothers\nCalvin Klein\nChildren’s Place\nCoach\nCole Haan\nEddie Bauer\nGap Brands\nGymboree Brands\nLimited Brands\nLucky Brand\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nUrban Outfitters\nAny retail apparel start-up operated by one of the above companies
c6d4a02258909dfd134093de86f99327.pdf	effective_date jurisdiction party term	EX-99.D.5 9 d96542dex99d5.htm EX-99.D.5\nEXHIBIT (d)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) is dated as of 31st January, 2014 (the “Effective Date”) and is entered into between\nInSite Vision Incorporation, a Delaware corporation (the “Company”), and SUN PHARMACEUTICAL INDUSTRIES LTD., a company\nregistered and existing in India under the Companies Act, 1956, with its registered office at SPARC, Tandalja, Baroda – 390 020, Gujarat, India\nand its corporate office at Acme Plaza, Andheri – Kuria Road, Andheri – East, Mumbai – 400 059, Maharashtra, India (the “Potential\nRelationship Party”). Each of the Company and the Potential Relationship Party are sometimes referred to herein as a “Party” and together as\nthe “Parties.” In consideration of the mutual covenants contained herein, the Potential Relationship Party and the Company, intending to be\nlegally bound hereby, agree to the following:\nSection 1. Definitions. For purposes of this Agreement:\n(a) “Affiliate” of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled\nby, or is under common control with, such specified person.\n(b) “Confidential Information” means all information relating, directly or indirectly, to the Disclosing Party or the business, products,\nmarkets, research and development, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of\nthe Disclosing Party, the business of any customer or partner of the Disclosing Party, any information about or concerning any third party (which\ninformation was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party) and any product\nofferings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data,\nschematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies of the\nDisclosing Party (in each case, whether prepared by the Disclosing Party, its Representatives or otherwise) which is delivered, disclosed or\nfurnished by or on behalf of the Disclosing Party to the Receiving Party or to its Representatives, before, on or after the date of this Agreement,\nregardless of the manner in which it is delivered, disclosed or furnished, and will also be deemed to include all notes, analyses, compilations,\nstudies, forecasts, interpretations or other documents prepared by the Receiving Party or its Representatives that contain, reflect or are based\nupon, in whole or in part, the information delivered, disclosed or furnished to the Receiving Party or its Representatives pursuant to this\nAgreement. Notwithstanding any other provision of this Agreement, the term Confidential Information will not include information which:\n(i) is or becomes generally available to the public, through no fault of the Receiving Party or its Representatives; provided, however,\nthat specific aspects or details of Confidential Information will not be deemed to be within the public domain, or in the possession of the\nReceiving Party in accordance with Section (b)(ii), merely because the Confidential Information is embraced by more general information\nin the public domain or in the possession of the Receiving Party. Further, any combination of Confidential Information will not be\nconsidered in the public domain or in the possession of the Receiving Party in accordance with Section (b)(ii) merely because individual\nelements of such Confidential Information are in the public domain or in the possession of the Receiving Party unless the combination and\nits principles are in the public domain or in the possession of the Receiving Party;\n(ii) can be demonstrated by documentation or competent proof to have been in the possession of the Receiving Party before its being\nfurnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the Receiving Party does not know, or have a\nreasonable basis for concluding, that the source of such information was bound by a confidentiality agreement with, or other contractual,\nlegal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information;\n(iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of its\nRepresentatives, provided that the Receiving Party does not know or have reason to believe that the source is bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party with respect to such\ninformation; or\n(iv) the Disclosing Party agrees in writing is not Confidential Information.\n(c) “Discussion Information” has the meaning provided in Section 3(c).\n(d) “Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed, in\nany particular circumstance.\n(e) “Exchange Act” means the Securities Exchange Act of 1934 as amended.\n(f) “Receiving Party” means the Party receiving Confidential Information or on whose behalf Confidential Information is received, in any\nparticular circumstance.\n(g) “person” will be broadly interpreted to include individuals, any corporation, partnership, group, individual or other entity and the\nmedia.\n(h) “Possible Transaction” means a possible negotiated business combination between the Parties.\n(i) “Representatives” means (i) with respect to the Potential Relationship Party, the Potential Relationship Party’s officers, managers,\ndirectors, general partners, employees, outside counsel, accountants, consultants, financial advisors, and potential sources of equity or debt\nfinancing (and their respective counsel), and (ii) with respect to the Company, will include its officers, directors, employees, agents, partners and\nadvisors and those of its subsidiaries, Affiliates and/or divisions (including attorneys, accountants, consultants and financial advisors).\n(j) “Standstill Period” means the six months period commencing on the date of this Agreement.\nSection 2. Disclosure of Confidential Information. In connection with the consideration of a Possible Transaction, the Company and the\nPotential Relationship Party may deliver or make available (or prior to the date hereof may have delivered or made available) to the other and its\nRepresentatives certain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such\ninformation being furnished to the Receiving Party and the Receiving Party’s Representatives, the Receiving Party agrees that the Receiving\nParty will, and will cause the Receiving Party’s Representatives to, treat the Confidential Information in accordance with the provisions of this\nAgreement and take or abstain from taking certain other actions as set forth herein. Notwithstanding any other provision of this Agreement,\nneither Party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation\nnot specified herein; or (d) prohibiting either Party from associating themselves with competitors of the other Party for purposes substantially\nsimilar to those involved herein.\nSection 3. Use and Non-Disclosure of Confidential Information and Discussion Information.\n(a) The Receiving Party hereby agrees that the Receiving Party and the Receiving Party’s Representatives will use Confidential\nInformation of the Disclosing Party solely for the purpose of evaluating and negotiating a Possible Transaction with the Disclosing Party and for\nno other purpose, and that such Confidential Information will not be used in any way detrimental to the Disclosing Party. The Receiving Party\nfurther agrees that it will and will cause its Representatives to take those steps the Receiving Party takes to protect its own similar proprietary and\nconfidential information (which will not be less than a reasonable standard of care) to keep the Confidential Information of the Disclosing Party\nconfidential; provided, however, that (i) the Receiving Party may make any disclosure of the Confidential Information to which the Disclosing\nParty gives its prior written consent\nPage2of11\nand (ii) any of the Confidential Information may be disclosed to the Receiving Party’s Representatives who need to know such information for\nthe purpose of evaluating a Possible Transaction, who are provided with a copy of this Agreement and who agree to be bound by the terms this\nAgreement. The Parties will maintain a list of those Representatives to whom Confidential Information has been disclosed (which list will be\npresented to the Party upon the other Party’s request). In any event, the Receiving Party agrees to undertake reasonable precautions to safeguard\nand protect the confidentiality of the Confidential Information, to accept responsibility for any breach of this Agreement by the Receiving Party\nor any of the Receiving Party’s Representatives, and, at the Receiving Party’s sole expense, to take all reasonable measures (including court\nproceedings) to restrain the Receiving Party and the Receiving Party’s Representatives from prohibited or unauthorized disclosure or uses of the\nConfidential Information.\n(b) Notwithstanding any other provision of this Agreement:\n(i) the Receiving Party or its Representatives may disclose Confidential Information of the Disclosing Party if required in order to\nestablish its rights under this Agreement, but only to the extent such disclosure is necessary and provided that the Receiving Party seeks\nconfidential treatment of the Confidential Information to be disclosed;\n(ii) this Agreement will not prohibit or restrict either Party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other Party disclosed in the Confidential Information as long as such Party does not\nthereby breach this Agreement. Each Party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other Party disclosed in the Confidential Information; and\n(iii) either Party will be free to use for any purpose the residuals resulting from access to or work with Confidential Information\ndisclosed hereunder. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by\npersons who have had access to the Confidential Information so long as such persons have not studied the information for the purpose of\nreplicating the same from memory. Neither Party shall have any obligation to limit or restrict the assignment of such persons or to pay\nroyalties for any work resulting from the use of residuals.\n(c) Each Party agrees that, without the prior written consent of the other Party, neither it nor its Representatives will disclose to any other\nperson the fact that the other Party or its Representative have received Confidential Information or that Confidential Information has been made\navailable to the other Party or its Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status this Agreement and the\nidentity of the parties hereto (collectively, the “Discussion Information”), provided that the Receiving Party may make such disclosure if required\nby law or the applicable rules of any securities exchange or interdealer quotation system. The Potential Relationship Party further agrees that,\nwithout the prior written consent of the Company (which shall not be unreasonably withheld or denied), the Potential Relationship Party and the\nPotential Relationship Party’s Representatives will not, directly or indirectly, consult or share Confidential Information or Discussion\nInformation with, or enter into any agreement, arrangement or understanding, or any discussions which might lead to any such agreement,\narrangement or understanding, with any co-investor, source of equity financing or other person (other than the Company) regarding a Possible\nTransaction, including discussions or other communications with any prospective bidder for the Company with respect to (i) whether or not the\nReceiving Party or such other prospective bidder will make a bid or offer for the Disclosing Party or (ii) the price that the Receiving Party or\nsuch other bidder may bid or offer for the Disclosing Party.\n(d) To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and\nagree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and will not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a\nParty that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege will remain entitled to\nsuch protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to\nreveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nPage3of11\nSection 4. Required Actions if Disclosure is Legally Sought or Compelled. In the event that the Receiving Party or any of the Receiving Party’s\nRepresentatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings,\nsubpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information or Discussion Information, the\nReceiving Party will provide the Disclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may\nin its sole discretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in\nthe absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of the Receiving\nParty’s Representatives are nonetheless, in the written opinion of outside legal counsel, legally compelled to disclose Confidential Information or\nDiscussion Information to any tribunal, the Receiving Party or the Receiving Party’s Representatives may, without liability hereunder, disclose to\nsuch tribunal only that portion of the Confidential Information or Discussion Information which such counsel advises the Receiving Party is\nlegally required to be disclosed, provided that the Receiving Party will use the Receiving Party’s reasonable best efforts to preserve the\nconfidentiality of the Confidential Information and the Discussion Information, including by cooperating with the Disclosing Party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information and the\nDiscussion Information by such tribunal; and provided further that the Receiving Party will promptly notify the Disclosing Party of (i) the\nReceiving Party’s determination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nSection 5. Return and Destruction of Confidential Information. In the event that the Receiving Party decides not to proceed with a Possible\nTransaction, the Receiving Party will promptly inform the Disclosing Party of that decision. In that case, or at any time upon the request of the\nDisclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing Party promptly deliver, at the\nReceiving Party’s expense, to the Disclosing Party or destroy all Confidential Information furnished to the Receiving Party or the Receiving\nParty’s Representatives by or on behalf of the Disclosing Party pursuant hereto. In the event of such a decision or request, all other Confidential\nInformation prepared by the Receiving Party or on the Receiving Party’s behalf will be returned or destroyed and, upon the Disclosing Party’s\nrequest, the Receiving Party will provide the Disclosing Party with prompt written confirmation of the Receiving Party’s compliance with this\nparagraph; provided, however, that\n(a) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material will not be destroyed until the\nproceeding is settled or a final judgment with respect thereto has been rendered;\n(b) the Receiving Party will not, in connection with the foregoing obligations, be required to identify or delete Confidential Information\nheld electronically in archive or back-up systems in accordance with general systems archiving or backup policies and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential\nInformation so archived or backed-up;\n(c) the Receiving Party will not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the\nReceiving Party is required to retain a copy pursuant to applicable law; and\n(d) one copy of all Confidential Information may be kept by the Receiving Party’s outside counsel, if any, and such Confidential\nInformation shall be fully protected by attorney-client privilege.\nNotwithstanding the return, destruction or continued possession pursuant to the terms of this Section 5 of the Confidential Information, the\nReceiving Party and the Receiving Party’s Representatives will continue to be bound by the Receiving Party’s obligations of confidentiality and\nother obligations and agreements hereunder.\nSection 6. No Agreement. Each Patty understands and agrees that no contract or agreement providing for any Possible Transaction will be\ndeemed to exist between the Parties unless and until a final definitive agreement has been executed and delivered, and each Party hereby waives,\nin advance, any claims (including breach of\nPage4of11\ncontract) in connection with any Possible Transaction unless and until the Parties will have entered into a final definitive agreement. The Parties\nalso agree that unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will\nbe under any legal obligation of any kind whatsoever with respect to such a Possible Transaction by virtue of this Agreement, except for the\nmatters specifically agreed to herein. The Company further reserves the right, in its sole discretion, with due notice to reject any and all proposals\nmade by the Potential Relationship Party or any of its Representatives with regard to a Possible Transaction to determine not to engage in\ndiscussions or negotiations and to terminate discussions and negotiations with the Potential Relationship Party at any time, and to conduct,\ndirectly or through any of its Representatives, any process for any transaction involving the Company or any of its subsidiaries, if and as they in\ntheir sole discretion determine (including negotiating with any other interested parties and entering into a definitive agreement without prior\nnotice to the Potential Relationship Party or any other person).\nSection 7. Representations and Warranties. Each Party represents and warrants to the other Party that it has the right to enter into this\nAgreement and that this Agreement is a valid and binding obligation of such Party relating to the matters herein. Each Party further represents\nand warrants that the terms of this Agreement are not inconsistent with other contractual obligations, express or implied, which such Party may\nhave or any law applicable to such Party or its business. The Receiving Party understands, acknowledges and agrees that neither the Disclosing\nParty nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the\nConfidential Information by virtue of this Agreement. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives\nwill have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom.\nSection 8. Material Non-Public Information. The Receiving Party acknowledges and agrees that the Receiving Party is aware (and that the\nReceiving Party’s Representatives are aware or, upon receipt of any Confidential Information or Discussion Information, will be advised by the\nReceiving Party) that (a) the Confidential Information being furnished to the Receiving Party or the Receiving Party’s Representatives contains\nmaterial, non-public information regarding the Disclosing Party and (b) the United States and other non-U.S . securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this Agreement, including the Discussion Information,\nfrom purchasing or selling securities of a company which may be a party to a transaction of the type contemplated by this Agreement or from\ncommunicating such information to any person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or\nsell such securities in reliance upon such information.\nSection 9. No Solicitation. In consideration of the Confidential Information being furnished hereunder, each Party agrees that, for a period of\nsix months from the date of this Agreement, such Party will not, directly or indirectly, solicit for employment with such Party or any of its\nAffiliates, any of the officers or employees of the other Party or its Affiliates (a) with whom such Party has had contact during the evaluation of a\nPossible Transaction or (b) who were identified by name and function to such Party by an officer or employee of the other Party with whom such\nParty or its Representatives had contact during the evaluation of a Possible Transaction. For the avoidance of doubt, employees whose names are\nprovided by the other Party in response to a request made by such Party or its Representatives during the evaluation of a Possible Transaction are\ncovered by this non-solicitation obligation. Notwithstanding the foregoing, nothing herein shall restrict or preclude either Party from (i) making\ngeneralized searches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (ii) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other Party, (iii) hiring an employee of the other Party who\nfirst initiates an employment discussion with such Party, in each case, so long as such Party has not violated the restrictions on solicitation\ncontained in this Agreement or (iv) if the employee is no more on the rolls of the Party.\nPage5of11\nSection 10. Standstill.\n(a) As of the date of this Agreement, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Representatives\nacting on the Potential Relationship Party’s behalf, or any person with whom any of the foregoing may be deemed to be acting in concert with\nrespect to the Company or its securities, owns any securities of the Company to the best of their knowledge, information and belief and shall not\nown more than 5% during the tenure of this Agreement. The Potential Relationship Party agrees that during the Standstill Period, unless\nspecifically invited in writing by the Company, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Affiliates,\nsubsidiaries or Representatives acting on the Potential Relationship Party’s behalf or on behalf of other persons acting in concert with the\nPotential Relationship Party will in any manner, directly or indirectly:\n(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate\nin or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect\nor participate in: (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or\nbeneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries or Affiliates; (ii) any\ntender or exchange offer, merger or other business combination involving the Company, any of the subsidiaries or Affiliates or assets of the\nCompany or its subsidiaries or its Affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries\nor Affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company\nor any of its subsidiaries or Affiliates,\n(ii) make, or in any way participate in, directly or indirectly, (i) any “solicitation” of “proxies” (as such terms are used in the rules of\nthe Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of any\nvoting securities of the Company or (ii) any demand for a copy of the Company’s stock ledger, list of stockholders or any other books and\nrecords of the Company;\n(iii) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the Company or otherwise\nact in concert with any person in respect of any such securities;\n(iv) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of\nDirectors or policies of the Company or to obtain representation on the Board of Directors of the Company;\n(v) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding\nany of the types of matters set forth in (i) above; or\n(vi) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\n(b) Notwithstanding the foregoing, the provisions of ARTICLE I Section 10(a), the Potential Relationship Party or any of the Potential\nRelationship Party’s Affiliates, subsidiaries or Representatives acting on the Potential Relationship Party’s behalf may at any time and from time\nto time submit to the Board of Directors of the Company one or more offers, proposals or indications of interest related to a Possible Transaction\nthat would otherwise be prohibited by ARTICLE I Section 10(a), provided that each such submission is made on a confidential basis, does not\nstate an intention to make a public announcement related to the text or contents of such submission or discussion and is made in a manner that\ncould not reasonably be expected to cause the Company to need to make public disclosure thereof.\n(c) The Potential Relationship Party also agrees during the Standstill Period not to request that the Company or any of its Representatives,\ndirectly or indirectly, amend or waive any provision of this ARTICLE I Section 10.\n(d) The Potential Relationship Party agrees that, if at any time during the Standstill Period, the Potential Relationship Party or any of the\nPotential Relationship Party’s Affiliates or subsidiaries or Representatives acting on the Potential Relationship Party’s behalf are approached by\nany third party concerning the Potential Relationship Party’s or their participation in a transaction involving any assets, indebtedness or business\nof, or securities issued by, the Company or any of its subsidiaries, the Potential Relationship Party will promptly inform the Company of the\nnature of such transaction and the parties involved.\nPage6of11\n(e) The banks approached by the Potential Relationship Party for the purpose of financing would be subject to confidentiality obligations as\nset forth in said Section 3, without, however, requiring such recipient bank, or its representatives, to make the Standstill undertakings stipulated\nin the current Section 10 of the Agreement.\n(f) The non-solicitation and stand-still obligations under Sections 9 and 10 will cease to apply on completion of the transaction.\nSection 11. Miscellaneous.\n(a) Notices. All notices, requests, claims, demands and other communications hereunder will be given in writing and will be deemed given\nand effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif,\n.jpeg or similar electronic attachment at the facsimile number or email address, respectively, specified for the relevant receiving Party before 5:30\np.m. (in the time zone of the receiving Party) on a business day (in the time zone of the receiving Party), (ii) the next business day after the date\nof transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif, .jpeg or similar electronic attachment at\nthe facsimile number or email address, respectively, specified for the relevant receiving Party on a day that is not a business day or later than 5:30\np.m. on any business day (in each case, in the time zone of the receiving Party), (iii) one business day following the date of deposit with a\nnationally recognized overnight courier service for delivery on the following business day, or (iv) upon actual receipt by the party to whom such\nnotice is required to be given, but if delivery is not accepted, then on the date delivery is refused. The addresses, facsimile numbers and email\naddresses for such notices and communications are those set forth below, or such other address, facsimile number or email address as may be\ndesignated in writing after the Effective Date, in the same manner, by any such person:\nif to the Potential Relationship Party:\nSUN PHARMACEUTICAL INDUSTRIES LTD\nAcme Plaza, Andheri – Kurla Road,\nAndheri – East, Mumbai – 400 059,\nMaharashtra, India\nAttention: Mr. Ashok I. Bhuta\nFacsimile: +91 22 6184 8686\nEmail: Ashok.Bhuta@sunpharma.com\nwith a copy (which will not constitute notice) to:\nS. H. Bathiya & Associates\n2, Tardeo AC Market,\n4th Floor, Tardeo Road,\nMumbai – 400 034\nAttention: Shailesh H. Bathiya\nFacsimile: +91 22 4355 8080\nEmail: shb@shbathiya.com\nif to the Company:\nInSite Vision Incorporation\n965 Atlantic Ave.\nAlameda, CA 94501\nAttention: Timothy Ruane\nFacsimile: (510) 865-5700\nEmail: TRuane@insite.com\nPage7of11\nwith a copy (which will not constitute notice) to:\nJones Day\n1755 Embarcadero Road\nPalo Alto, CA 94303\nAttention: Timothy Curry & Jonn Beeson\nFacsimile: 1-650-739-3900\nEmail: tcurry@jonesday.com & jbeeson@jonesday.com\n(b) Severability. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity will not be deemed to affect any other provision of this Agreement or the validity of the\nremainder of this Agreement, and such invalid provision will be replaced with a valid provision that as closely as possible reflects the Parties’\nintent with respect to such invalid provision.\n(c) Entire Agreement. This Agreement contains the entire agreement between the Parties regarding its subject matter and supersedes all\nprior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter, provided that any\nconfidentiality or non-disclosure existing between the parties prior to the date of this Agreement will continue to apply to disclosures made prior\nto the date of this Agreement.\n(d) Successors. This Agreement will inure to the benefit of, and be enforceable by, the Parties and each of their successors and assigns.\n(e) Remedies. It is understood and agreed that money damages would not be an adequate remedy for any breach of this Agreement by a\nParty or any of its Representatives and that a Party will be entitled to equitable relief, including injunction and specific performance, as a remedy\nfor any such breach by the other Party. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be\nin addition to all other remedies available at law or in equity. Each Party further agrees not to raise as a defense or objection to the request or\ngranting of such relief that any breach of this Agreement is or would be compensable by an award of money damages, and the Parties agree to\nwaive any requirements for the securing or posting of any bond in connection with such remedy. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines (in a judgment not subject to further appeal or for which the time for appeal has\nexpired), that a Party or any of its Representatives has breached this Agreement, then such Party will be liable and pay to the other Party the\nreasonable legal fees incurred by the other Party in connection with such litigation, including any appeal therefrom. If such court determines (in a\njudgment not subject to further appeal or for which the time for appeal has expired) that neither Party or its Representatives has breached this\nAgreement, then each Party will pay their own legal fees incurred in connection with such litigation and any appeal therefrom.\n(f) Third Party Beneficiaries. Each Party agrees that nothing herein expressed or implied is intended to confer upon or give any rights or\nremedies to any other person under or by reason of this Agreement.\n(g) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to\nagreements made and to be performed entirely within the State of Delaware, without regard to the conflict of law provisions that would result in\nthe application of the laws of any other jurisdiction.\n(h) Forum. Each Party irrevocably and unconditionally submits to the exclusive personal jurisdiction of the chancery courts of the State of\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), for any actions, suits or proceedings arising out of or relating to this Agreement (and each Party\nagrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process,\nsummons, notice or document by U.S. registered mail to such Party’s address set forth above will be effective service of process for any action,\nsuit or proceeding brought against such Party in any such court). Each Party irrevocably and unconditionally waives any objection that such\nParty may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of this Agreement in the chancery courts of\nthe State of\nPage8of11\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any Federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court\nthat any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(i) Waiver of Jury Trial. EACH OF THE PARTIES WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY\nRIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,\nUNDER OR IN CONNECTION WITH THIS AGREEMENT. Each of the Parties (A) certifies that no representative, agent or attorney of the\nother Party has represented, expressly or otherwise, that the other Party would not, in the event of litigation, seek to enforce the foregoing waiver\nand (B) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this\nARTICLE I Section 11(i).\n(j) Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or\nsimilar attachment in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed and delivered\nwill be deemed to be an original but all of which taken together will constitute one and the same agreement. Any such counterpart, to the extent\ndelivered using facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment will be treated in all manner and respects as an\noriginal executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof\ndelivered in person.\n(k) No Waiver of Rights. No failure or delay by either Party in exercising any right, power or privilege under this Agreement will operate\nas a waiver, nor will any single or partial exercise under this Agreement preclude any other or further exercise under this Agreement or the\nexercise of any other right, power or privilege hereunder.\n(l) No Modification. No provision in this Agreement can be waived, modified or amended except by written consent of the Party against\nwhom enforcement is sought, which consent will specifically refer to the provision to be waived, modified or amended and will explicitly make\nsuch waiver, modification or amendment.\n(m) Inquiries. All inquiries for information about the Company and its subsidiaries and communications with the Company will be made\nthrough [\n] or through an employee or person who has contacted the Potential Relationship Party for and on behalf of the Company.\nNeither the Potential Relationship Party nor any of its Representatives will contact any third party with whom the Company or any of its\nsubsidiaries has a business or other relationship (including any director, officer, employee, customer, supplier, stockholder or creditor of the\nCompany or any of its subsidiaries) in connection with a Possible Transaction without the Company’s prior written consent unless such person\nhas contacted the Potential Relationship Party for and on behalf of the Company.\n(n) Term. This Agreement and all obligations will terminate three years from the date of this Agreement.\n(o) General Interpretation. Each of the Parties has been represented by independent counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and each has executed this Agreement with the advice of said independent counsel. Each Party\nand its counsel participated in the preparation of this Agreement, and any and all drafts of this Agreement exchanged among the Parties will be\ndeemed the work product of all of the Parties and may not be construed against any Party by reason of its drafting or preparation. Each of the\nParties waives the application of any law or rule of construction providing that ambiguities in an agreement or other document will be construed\nagainst the party drafting such agreement or document. In this Agreement, except to the extent otherwise provided or that the context otherwise\nrequires:\n(i) the headings in this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this\nAgreement;\nPage9of11\n(ii) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the\nwords “without limitation;”\n(iii) the use of “or” is not intended to be exclusive, unless expressly indicated otherwise; and\n(iv) words importing the singular include the plural and vice versa and words importing gender include all genders.\n[Remainder of Page Intentionally Left Blank — Signature Page Follows]\nPage 10 of 11\nINSITE VISION INCORPORATION\nBy: /s/ Lyle Bowman\nName: Lyle Bowman\nTitle: Vice President\nSUN PHARMACEUTICAL INDUSTRIES LTD\nBy: /s/ Uday Baldota\nName: Uday Baldota\nTitle: Senior Vice President	EX-99.D.5 9 d96542dex99d5.htm EX-99.D.5\nEXHIBIT (d)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) is dated as of 31st January, 2014 (the “Effective Date”) and is entered into between\nInSite Vision Incorporation, a Delaware corporation (the “Company”), and SUN PHARMACEUTICAL INDUSTRIES LTD., a company\nregistered and existing in India under the Companies Act, 1956, with its registered office at SPARC, Tandalja, Baroda — 390 020, Gujarat, India\nand its corporate office at Acme Plaza, Andheri — Kuria Road, Andheri — East, Mumbai — 400 059, Maharashtra, India (the “Potential\nRelationship Party”). Each of the Company and the Potential Relationship Party are sometimes referred to herein as a “Party” and together as\nthe “Parties.” In consideration of the mutual covenants contained herein, the Potential Relationship Party and the Company, intending to be\nlegally bound hereby, agree to the following:\nSection 1. Definitions. For purposes of this Agreement:\n(a) “Affiliate” of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled\nby, or is under common control with, such specified person.\n(b) “Confidential Information” means all information relating, directly or indirectly, to the Disclosing Party or the business, products,\nmarkets, research and development, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of\nthe Disclosing Party, the business of any customer or partner of the Disclosing Party, any information about or concerning any third party (which\ninformation was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party) and any product\nofferings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data,\nschematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies of the\nDisclosing Party (in each case, whether prepared by the Disclosing Party, its Representatives or otherwise) which is delivered, disclosed or\nfurnished by or on behalf of the Disclosing Party to the Receiving Party or to its Representatives, before, on or after the date of this Agreement,\nregardless of the manner in which it is delivered, disclosed or furnished, and will also be deemed to include all notes, analyses, compilations,\nstudies, forecasts, interpretations or other documents prepared by the Receiving Party or its Representatives that contain, reflect or are based\nupon, in whole or in part, the information delivered, disclosed or furnished to the Receiving Party or its Representatives pursuant to this\nAgreement. Notwithstanding any other provision of this Agreement, the term Confidential Information will not include information which:\n(i) is or becomes generally available to the public, through no fault of the Receiving Party or its Representatives; provided, however,\nthat specific aspects or details of Confidential Information will not be deemed to be within the public domain, or in the possession of the\nReceiving Party in accordance with Section (b)(ii), merely because the Confidential Information is embraced by more general information\nin the public domain or in the possession of the Receiving Party. Further, any combination of Confidential Information will not be\nconsidered in the public domain or in the possession of the Receiving Party in accordance with Section (b)(ii) merely because individual\nelements of such Confidential Information are in the public domain or in the possession of the Receiving Party unless the combination and\nits principles are in the public domain or in the possession of the Receiving Party;\n(ii) can be demonstrated by documentation or competent proof to have been in the possession of the Receiving Party before its being\nfurnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the Receiving Party does not know, or have a\nreasonable basis for concluding, that the source of such information was bound by a confidentiality agreement with, or other contractual,\nlegal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information;\n(iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of its\nRepresentatives, provided that the Receiving Party does not know or have reason to believe that the source is bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party with respect to such\ninformation; or\n(iv) the Disclosing Party agrees in writing is not Confidential Information.\n(c) “Discussion Information” has the meaning provided in Section 3(c).\n(d) “Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed, in\nany particular circumstance.\n(e) “Exchange Act” means the Securities Exchange Act of 1934 as amended.\n() “Receiving Party” means the Party receiving Confidential Information or on whose behalf Confidential Information is received, in any\nparticular circumstance.\n(g) “person” will be broadly interpreted to include individuals, any corporation, partnership, group, individual or other entity and the\nmedia.\n(h) “Possible Transaction” means a possible negotiated business combination between the Parties.\n(i) “Representatives” means (i) with respect to the Potential Relationship Party, the Potential Relationship Party’s officers, managers,\ndirectors, general partners, employees, outside counsel, accountants, consultants, financial advisors, and potential sources of equity or debt\nfinancing (and their respective counsel), and (ii) with respect to the Company, will include its officers, directors, employees, agents, partners and\nadvisors and those of its subsidiaries, Affiliates and/or divisions (including attorneys, accountants, consultants and financial advisors).\n(j) “Standstill Period” means the six months period commencing on the date of this Agreement.\nSection 2. Disclosure of Confidential Information. In connection with the consideration of a Possible Transaction, the Company and the\nPotential Relationship Party may deliver or make available (or prior to the date hereof may have delivered or made available) to the other and its\nRepresentatives certain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such\ninformation being furnished to the Receiving Party and the Receiving Party’s Representatives, the Receiving Party agrees that the Receiving\nParty will, and will cause the Receiving Party’s Representatives to, treat the Confidential Information in accordance with the provisions of this\nAgreement and take or abstain from taking certain other actions as set forth herein. Notwithstanding any other provision of this Agreement,\nneither Party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation\nnot specified herein; or (d) prohibiting either Party from associating themselves with competitors of the other Party for purposes substantially\nsimilar to those involved herein.\nSection 3. Use and Non-Disclosure of Confidential Information and Discussion Information.\n(a) The Receiving Party hereby agrees that the Receiving Party and the Receiving Party’s Representatives will use Confidential\nInformation of the Disclosing Party solely for the purpose of evaluating and negotiating a Possible Transaction with the Disclosing Party and for\nno other purpose, and that such Confidential Information will not be used in any way detrimental to the Disclosing Party. The Receiving Party\nfurther agrees that it will and will cause its Representatives to take those steps the Receiving Party takes to protect its own similar proprietary and\nconfidential information (which will not be less than a reasonable standard of care) to keep the Confidential Information of the Disclosing Party\nconfidential; provided, however, that (i) the Receiving Party may make any disclosure of the Confidential Information to which the Disclosing\nParty gives its prior written consent\nPage 2 of 11\nand (ii) any of the Confidential Information may be disclosed to the Receiving Party’s Representatives who need to know such information for\nthe purpose of evaluating a Possible Transaction, who are provided with a copy of this Agreement and who agree to be bound by the terms this\nAgreement. The Parties will maintain a list of those Representatives to whom Confidential Information has been disclosed (which list will be\npresented to the Party upon the other Party’s request). In any event, the Receiving Party agrees to undertake reasonable precautions to safeguard\nand protect the confidentiality of the Confidential Information, to accept responsibility for any breach of this Agreement by the Receiving Party\nor any of the Receiving Party’s Representatives, and, at the Receiving Party’s sole expense, to take all reasonable measures (including court\nproceedings) to restrain the Receiving Party and the Receiving Party’s Representatives from prohibited or unauthorized disclosure or uses of the\nConfidential Information.\n(b) Notwithstanding any other provision of this Agreement:\n(i) the Receiving Party or its Representatives may disclose Confidential Information of the Disclosing Party if required in order to\nestablish its rights under this Agreement, but only to the extent such disclosure is necessary and provided that the Receiving Party seeks\nconfidential treatment of the Confidential Information to be disclosed;\n(ii) this Agreement will not prohibit or restrict either Party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other Party disclosed in the Confidential Information as long as such Party does not\nthereby breach this Agreement. Each Party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other Party disclosed in the Confidential Information; and\n(iii) either Party will be free to use for any purpose the residuals resulting from access to or work with Confidential Information\ndisclosed hereunder. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by\npersons who have had access to the Confidential Information so long as such persons have not studied the information for the purpose of\nreplicating the same from memory. Neither Party shall have any obligation to limit or restrict the assignment of such persons or to pay\nroyalties for any work resulting from the use of residuals.\n(c) Each Party agrees that, without the prior written consent of the other Party, neither it nor its Representatives will disclose to any other\nperson the fact that the other Party or its Representative have received Confidential Information or that Confidential Information has been made\navailable to the other Party or its Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status this Agreement and the\nidentity of the parties hereto (collectively, the “Discussion Information”), provided that the Receiving Party may make such disclosure if required\nby law or the applicable rules of any securities exchange or interdealer quotation system. The Potential Relationship Party further agrees that,\nwithout the prior written consent of the Company (which shall not be unreasonably withheld or denied), the Potential Relationship Party and the\nPotential Relationship Party’s Representatives will not, directly or indirectly, consult or share Confidential Information or Discussion\nInformation with, or enter into any agreement, arrangement or understanding, or any discussions which might lead to any such agreement,\narrangement or understanding, with any co-investor, source of equity financing or other person (other than the Company) regarding a Possible\nTransaction, including discussions or other communications with any prospective bidder for the Company with respect to (i) whether or not the\nReceiving Party or such other prospective bidder will make a bid or offer for the Disclosing Party or (ii) the price that the Receiving Party or\nsuch other bidder may bid or offer for the Disclosing Party.\n(d) To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and\nagree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and will not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a\nParty that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege will remain entitled to\nsuch protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to\nreveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nPage 3 of 11\nSection 4. Required Actions if Disclosure is Legally Sought or Compelled. In the event that the Receiving Party or any of the Receiving Party’s\nRepresentatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings,\nsubpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information or Discussion Information, the\nReceiving Party will provide the Disclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may\nin its sole discretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in\nthe absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of the Receiving\nParty’s Representatives are nonetheless, in the written opinion of outside legal counsel, legally compelled to disclose Confidential Information or\nDiscussion Information to any tribunal, the Receiving Party or the Receiving Party’s Representatives may, without liability hereunder, disclose to\nsuch tribunal only that portion of the Confidential Information or Discussion Information which such counsel advises the Receiving Party is\nlegally required to be disclosed, provided that the Receiving Party will use the Receiving Party’s reasonable best efforts to preserve the\nconfidentiality of the Confidential Information and the Discussion Information, including by cooperating with the Disclosing Party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information and the\nDiscussion Information by such tribunal; and provided further that the Receiving Party will promptly notify the Disclosing Party of (i) the\nReceiving Party’s determination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nSection 5. Return and Destruction of Confidential Information. In the event that the Receiving Party decides not to proceed with a Possible\nTransaction, the Receiving Party will promptly inform the Disclosing Party of that decision. In that case, or at any time upon the request of the\nDisclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing Party promptly deliver, at the\nReceiving Party’s expense, to the Disclosing Party or destroy all Confidential Information furnished to the Receiving Party or the Receiving\nParty’s Representatives by or on behalf of the Disclosing Party pursuant hereto. In the event of such a decision or request, all other Confidential\nInformation prepared by the Receiving Party or on the Receiving Party’s behalf will be returned or destroyed and, upon the Disclosing Party’s\nrequest, the Receiving Party will provide the Disclosing Party with prompt written confirmation of the Receiving Party’s compliance with this\nparagraph; provided, however, that\n(a) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material will not be destroyed until the\nproceeding is settled or a final judgment with respect thereto has been rendered;\n(b) the Receiving Party will not, in connection with the foregoing obligations, be required to identify or delete Confidential Information\nheld electronically in archive or back-up systems in accordance with general systems archiving or backup policies and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential\nInformation so archived or backed-up;\n(c) the Receiving Party will not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the\nReceiving Party is required to retain a copy pursuant to applicable law; and\n(d) one copy of all Confidential Information may be kept by the Receiving Party’s outside counsel, if any, and such Confidential\nInformation shall be fully protected by attorney-client privilege.\nNotwithstanding the return, destruction or continued possession pursuant to the terms of this Section 5 of the Confidential Information, the\nReceiving Party and the Receiving Party’s Representatives will continue to be bound by the Receiving Party’s obligations of confidentiality and\nother obligations and agreements hereunder.\nSection 6. No Agreement. Each Patty understands and agrees that no contract or agreement providing for any Possible Transaction will be\ndeemed to exist between the Parties unless and until a final definitive agreement has been executed and delivered, and each Party hereby waives,\nin advance, any claims (including breach of\nPage 4 of 11\ncontract) in connection with any Possible Transaction unless and until the Parties will have entered into a final definitive agreement. The Parties\nalso agree that unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will\nbe under any legal obligation of any kind whatsoever with respect to such a Possible Transaction by virtue of this Agreement, except for the\nmatters specifically agreed to herein. The Company further reserves the right, in its sole discretion, with due notice to reject any and all proposals\nmade by the Potential Relationship Party or any of its Representatives with regard to a Possible Transaction to determine not to engage in\ndiscussions or negotiations and to terminate discussions and negotiations with the Potential Relationship Party at any time, and to conduct,\ndirectly or through any of its Representatives, any process for any transaction involving the Company or any of its subsidiaries, if and as they in\ntheir sole discretion determine (including negotiating with any other interested parties and entering into a definitive agreement without prior\nnotice to the Potential Relationship Party or any other person).\nSection 7. Representations and Warranties. Each Party represents and warrants to the other Party that it has the right to enter into this\nAgreement and that this Agreement is a valid and binding obligation of such Party relating to the matters herein. Each Party further represents\nand warrants that the terms of this Agreement are not inconsistent with other contractual obligations, express or implied, which such Party may\nhave or any law applicable to such Party or its business. The Receiving Party understands, acknowledges and agrees that neither the Disclosing\nParty nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the\nConfidential Information by virtue of this Agreement. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives\nwill have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom.\nSection 8. Material Non-Public Information. The Receiving Party acknowledges and agrees that the Receiving Party is aware (and that the\nReceiving Party’s Representatives are aware or, upon receipt of any Confidential Information or Discussion Information, will be advised by the\nReceiving Party) that (a) the Confidential Information being furnished to the Receiving Party or the Receiving Party’s Representatives contains\nmaterial, non-public information regarding the Disclosing Party and (b) the United States and other non-U.S. securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this Agreement, including the Discussion Information,\nfrom purchasing or selling securities of a company which may be a party to a transaction of the type contemplated by this Agreement or from\ncommunicating such information to any person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or\nsell such securities in reliance upon such information.\nSection 9. No Solicitation. In consideration of the Confidential Information being furnished hereunder, each Party agrees that, for a period of\nsix months from the date of this Agreement, such Party will not, directly or indirectly, solicit for employment with such Party or any of its\nAffiliates, any of the officers or employees of the other Party or its Affiliates (a) with whom such Party has had contact during the evaluation of a\nPossible Transaction or (b) who were identified by name and function to such Party by an officer or employee of the other Party with whom such\nParty or its Representatives had contact during the evaluation of a Possible Transaction. For the avoidance of doubt, employees whose names are\nprovided by the other Party in response to a request made by such Party or its Representatives during the evaluation of a Possible Transaction are\ncovered by this non-solicitation obligation. Notwithstanding the foregoing, nothing herein shall restrict or preclude either Party from (i) making\ngeneralized searches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (ii) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other Party, (iii) hiring an employee of the other Party who\nfirst initiates an employment discussion with such Party, in each case, so long as such Party has not violated the restrictions on solicitation\ncontained in this Agreement or (iv) if the employee is no more on the rolls of the Party.\nPage 5 of 11\nSection 10. Standstill.\n(a) As of the date of this Agreement, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Representatives\nacting on the Potential Relationship Party’s behalf, or any person with whom any of the foregoing may be deemed to be acting in concert with\nrespect to the Company or its securities, owns any securities of the Company to the best of their knowledge, information and belief and shall not\nown more than 5% during the tenure of this Agreement. The Potential Relationship Party agrees that during the Standstill Period, unless\nspecifically invited in writing by the Company, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Affiliates,\nsubsidiaries or Representatives acting on the Potential Relationship Party’s behalf or on behalf of other persons acting in concert with the\nPotential Relationship Party will in any manner, directly or indirectly:\n(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate\nin or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect\nor participate in: (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or\nbeneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries or Affiliates; (ii) any\ntender or exchange offer, merger or other business combination involving the Company, any of the subsidiaries or Affiliates or assets of the\nCompany or its subsidiaries or its Affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries\nor Affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company\nor any of its subsidiaries or Affiliates,\n(ii) make, or in any way participate in, directly or indirectly, (i) any “solicitation” of “proxies” (as such terms are used in the rules of\nthe Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of any\nvoting securities of the Company or (ii) any demand for a copy of the Company’s stock ledger, list of stockholders or any other books and\nrecords of the Company;\n(iii) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the Company or otherwise\nact in concert with any person in respect of any such securities;\n(iv) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of\nDirectors or policies of the Company or to obtain representation on the Board of Directors of the Company;\n(v) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding\nany of the types of matters set forth in (i) above; or\n(vi) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\n(b) Notwithstanding the foregoing, the provisions of ARTICLE I Section 10(a), the Potential Relationship Party or any of the Potential\nRelationship Party’s Affiliates, subsidiaries or Representatives acting on the Potential Relationship Party’s behalf may at any time and from time\nto time submit to the Board of Directors of the Company one or more offers, proposals or indications of interest related to a Possible Transaction\nthat would otherwise be prohibited by ARTICLE I Section 10(a), provided that each such submission is made on a confidential basis, does not\nstate an intention to make a public announcement related to the text or contents of such submission or discussion and is made in a manner that\ncould not reasonably be expected to cause the Company to need to make public disclosure thereof.\n(c) The Potential Relationship Party also agrees during the Standstill Period not to request that the Company or any of its Representatives,\ndirectly or indirectly, amend or waive any provision of this ARTICLE I Section 10.\n(d) The Potential Relationship Party agrees that, if at any time during the Standstill Period, the Potential Relationship Party or any of the\nPotential Relationship Party’s Affiliates or subsidiaries or Representatives acting on the Potential Relationship Party’s behalf are approached by\nany third party concerning the Potential Relationship Party’s or their participation in a transaction involving any assets, indebtedness or business\nof, or securities issued by, the Company or any of its subsidiaries, the Potential Relationship Party will promptly inform the Company of the\nnature of such transaction and the parties involved.\nPage 6 of 11\n(e) The banks approached by the Potential Relationship Party for the purpose of financing would be subject to confidentiality obligations as\nset forth in said Section 3, without, however, requiring such recipient bank, or its representatives, to make the Standstill undertakings stipulated\nin the current Section 10 of the Agreement.\n(f) The non-solicitation and stand-still obligations under Sections 9 and 10 will cease to apply on completion of the transaction.\nSection 11. Miscellaneous.\n(a) Notices. All notices, requests, claims, demands and other communications hereunder will be given in writing and will be deemed given\nand effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif,\n.jpeg or similar electronic attachment at the facsimile number or email address, respectively, specified for the relevant receiving Party before 5:30\np.m. (in the time zone of the receiving Party) on a business day (in the time zone of the receiving Party), (ii) the next business day after the date\nof transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif, .jpeg or similar electronic attachment at\nthe facsimile number or email address, respectively, specified for the relevant receiving Party on a day that is not a business day or later than 5:30\np.m. on any business day (in each case, in the time zone of the receiving Party), (iii) one business day following the date of deposit with a\nnationally recognized overnight courier service for delivery on the following business day, or (iv) upon actual receipt by the party to whom such\nnotice is required to be given, but if delivery is not accepted, then on the date delivery is refused. The addresses, facsimile numbers and email\naddresses for such notices and communications are those set forth below, or such other address, facsimile number or email address as may be\ndesignated in writing after the Effective Date, in the same manner, by any such person:\nif to the Potential Relationship Party:\nSUN PHARMACEUTICAL INDUSTRIES LTD\nAcme Plaza, Andheri — Kurla Road,\nAndheri — East, Mumbai — 400 059,\nMabharashtra, India\nAttention: Mr. Ashok I. Bhuta\nFacsimile: +91 22 6184 8686\nEmail: Ashok.Bhuta@sunpharma.com\nwith a copy (which will not constitute notice) to:\nS. H. Bathiya & Associates\n2, Tardeo AC Market,\n4th Floor, Tardeo Road,\nMumbai — 400 034\nAttention: Shailesh H. Bathiya\nFacsimile: +91 22 4355 8080\nEmail: shb@shbathiya.com\nif to the Company:\nInSite Vision Incorporation\n965 Atlantic Ave.\nAlameda, CA 94501\nAttention: Timothy Ruane\nFacsimile: (510) 865-5700\nEmail: TRuane@insite.com\nPage 7 of 11\nwith a copy (which will not constitute notice) to:\nJones Day\n1755 Embarcadero Road\nPalo Alto, CA 94303\nAttention: Timothy Curry & Jonn Beeson\nFacsimile: 1-650-739-3900\nEmail: tcurry@jonesday.com & jbeeson@jonesday.com\n(b) Severability. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity will not be deemed to affect any other provision of this Agreement or the validity of the\nremainder of this Agreement, and such invalid provision will be replaced with a valid provision that as closely as possible reflects the Parties’\nintent with respect to such invalid provision.\n(c) Entire Agreement. This Agreement contains the entire agreement between the Parties regarding its subject matter and supersedes all\nprior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter, provided that any\nconfidentiality or non-disclosure existing between the parties prior to the date of this Agreement will continue to apply to disclosures made prior\nto the date of this Agreement.\n(d) Successors. This Agreement will inure to the benefit of, and be enforceable by, the Parties and each of their successors and assigns.\n(e) Remedies. It is understood and agreed that money damages would not be an adequate remedy for any breach of this Agreement by a\nParty or any of its Representatives and that a Party will be entitled to equitable relief, including injunction and specific performance, as a remedy\nfor any such breach by the other Party. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be\nin addition to all other remedies available at law or in equity. Each Party further agrees not to raise as a defense or objection to the request or\ngranting of such relief that any breach of this Agreement is or would be compensable by an award of money damages, and the Parties agree to\nwaive any requirements for the securing or posting of any bond in connection with such remedy. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines (in a judgment not subject to further appeal or for which the time for appeal has\nexpired), that a Party or any of its Representatives has breached this Agreement, then such Party will be liable and pay to the other Party the\nreasonable legal fees incurred by the other Party in connection with such litigation, including any appeal therefrom. If such court determines (in a\njudgment not subject to further appeal or for which the time for appeal has expired) that neither Party or its Representatives has breached this\nAgreement, then each Party will pay their own legal fees incurred in connection with such litigation and any appeal therefrom.\n(f) Third Party Beneficiaries. Each Party agrees that nothing herein expressed or implied is intended to confer upon or give any rights or\nremedies to any other person under or by reason of this Agreement.\n(g) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to\nagreements made and to be performed entirely within the State of Delaware, without regard to the conflict of law provisions that would result in\nthe application of the laws of any other jurisdiction.\n(h) Forum. Each Party irrevocably and unconditionally submits to the exclusive personal jurisdiction of the chancery courts of the State of\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), for any actions, suits or proceedings arising out of or relating to this Agreement (and each Party\nagrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process,\nsummons, notice or document by U.S. registered mail to such Party’s address set forth above will be effective service of process for any action,\nsuit or proceeding brought against such Party in any such court). Each Party irrevocably and unconditionally waives any objection that such\nParty may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of this Agreement in the chancery courts of\nthe State of\nPage 8 of 11\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any Federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court\nthat any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(i) Waiver of Jury Trial. EACH OF THE PARTIES WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY\nRIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,\nUNDER OR IN CONNECTION WITH THIS AGREEMENT. Each of the Parties (A) certifies that no representative, agent or attorney of the\nother Party has represented, expressly or otherwise, that the other Party would not, in the event of litigation, seek to enforce the foregoing waiver\nand (B) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this\nARTICLE I Section 11(i).\n(j) Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or\nsimilar attachment in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed and delivered\nwill be deemed to be an original but all of which taken together will constitute one and the same agreement. Any such counterpart, to the extent\ndelivered using facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment will be treated in all manner and respects as an\noriginal executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof\ndelivered in person.\n(k) No Waiver of Rights. No failure or delay by either Party in exercising any right, power or privilege under this Agreement will operate\nas a waiver, nor will any single or partial exercise under this Agreement preclude any other or further exercise under this Agreement or the\nexercise of any other right, power or privilege hereunder.\n(1) No Modification. No provision in this Agreement can be waived, modified or amended except by written consent of the Party against\nwhom enforcement is sought, which consent will specifically refer to the provision to be waived, modified or amended and will explicitly make\nsuch waiver, modification or amendment.\n(m) Inquiries. All inquiries for information about the Company and its subsidiaries and communications with the Company will be made\nthrough [ ] or through an employee or person who has contacted the Potential Relationship Party for and on behalf of the Company.\nNeither the Potential Relationship Party nor any of its Representatives will contact any third party with whom the Company or any of its\nsubsidiaries has a business or other relationship (including any director, officer, employee, customer, supplier, stockholder or creditor of the\nCompany or any of its subsidiaries) in connection with a Possible Transaction without the Company’s prior written consent unless such person\nhas contacted the Potential Relationship Party for and on behalf of the Company.\n(n) Term. This Agreement and all obligations will terminate three years from the date of this Agreement.\n(o) General Interpretation. Each of the Parties has been represented by independent counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and each has executed this Agreement with the advice of said independent counsel. Each Party\nand its counsel participated in the preparation of this Agreement, and any and all drafts of this Agreement exchanged among the Parties will be\ndeemed the work product of all of the Parties and may not be construed against any Party by reason of its drafting or preparation. Each of the\nParties waives the application of any law or rule of construction providing that ambiguities in an agreement or other document will be construed\nagainst the party drafting such agreement or document. In this Agreement, except to the extent otherwise provided or that the context otherwise\nrequires:\n(i) the headings in this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this\nAgreement;\nPage 9 of 11\n» e\n(ii) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the\nwords “without limitation;”\n(iii) the use of “or” is not intended to be exclusive, unless expressly indicated otherwise; and\n(iv) words importing the singular include the plural and vice versa and words importing gender include all genders.\n[Remainder of Page Intentionally Left Blank — Signature Page Follows]\nPage 10 of 11\nINSITE VISION INCORPORATION\nBy:  /s/ Lyle Bowman\nName: Lyle Bowman\nTitle: Vice President\nSUN PHARMACEUTICAL INDUSTRIES LTD\nBy:  /s/ Uday Baldota\nName: Uday Baldota\nTitle: Senior Vice President	EX-99.D.5 9 d96542dex99d5.htm EX-99.D.5\nEXHIBIT (d)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement ("Agreement") is dated as of 31st January, 2014 (the "Effective Date") and is entered into between\nInSite Vision Incorporation, a Delaware corporation (the "Company"), and SUN PHARMACEUTICAL INDUSTRIES LTD., a company\nregistered and existing in India under the Companies Act, 1956, with its registered office at SPARC, Tandalja, Baroda 390 020, Gujarat, India\nand its corporate office at Acme Plaza, Andheri Kuria Road, Andheri East, Mumbai 400 059, Maharashtra, India (the "Potential\nRelationship Party"). Each of the Company and the Potential Relationship Party are sometimes referred to herein as a "Party" and together as\nthe "Parties." In consideration of the mutual covenants contained herein, the Potential Relationship Party and the Company, intending to be\nlegally bound hereby, agree to the following:\nSection 1. Definitions. For purposes of this Agreement:\n(a) "Affiliate" of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled\nby, or is under common control with, such specified person.\n(b) "Confidential Information" means all information relating, directly or indirectly, to the Disclosing Party or the business, products,\nmarkets, research and development, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects\nof\nthe Disclosing Party, the business of any customer or partner of the Disclosing Party, any information about or concerning any third party (which\ninformation was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party) and any product\nofferings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data,\nschematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies of the\nDisclosing Party (in each case, whether prepared by the Disclosing Party, its Representatives or otherwise) which is delivered, disclosed or\nfurnished\nby\nor\non\nbehalf\nof\nthe\nDisclosing\nParty\nto\nthe\nReceiving\nParty\nor\nto\nits\nRepresentatives,\nbefore,\non\nor\nafter\nthe\ndate\nof\nthis\nAgreement,\nregardless of the manner in which it is delivered, disclosed or furnished, and will also be deemed to include all notes, analyses, compilations,\nstudies, forecasts, interpretations or other documents prepared by the Receiving Party or its Representatives that contain, reflect or are based\nupon,\nin\nwhole\nor\nin\npart,\nthe\ninformation\ndelivered,\ndisclosed\nor\nfurnished\nto\nthe\nReceiving\nParty\nor\nits\nRepresentatives\npursuant\nto\nthis\nAgreement. Notwithstanding any other provision of this Agreement, the term Confidential Information will not include information which:\n(i) is or becomes generally available to the public, through no fault of the Receiving Party or its Representatives; provided, however,\nthat specific aspects or details of Confidential Information will not be deemed to be within the public domain, or in the possession of the\nReceiving Party in accordance with Section (b)(ii), merely because the Confidential Information is embraced by more general information\nin\nthe public domain or in the possession of the Receiving Party. Further, any combination of Confidential Information will not be\nconsidered in the public domain or in the possession of the Receiving Party in accordance with Section (b)(ii) merely because individual\nelements of such Confidential Information are in the public domain or in the possession of the Receiving Party unless the combination and\nits principles are in the public domain or in the possession of the Receiving Party;\n(ii) can be demonstrated by documentation or competent proof to have been in the possession of the Receiving Party before its being\nfurnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the Receiving Party does not know, or have a\nreasonable basis for concluding, that the source of such information was bound by a confidentiality agreement with, or other contractual,\nlegal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information;\n(iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of its\nRepresentatives, provided that the Receiving Party does not know or have reason to believe that the source is bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party with respect to such\ninformation; or\n(iv) the Disclosing Party agrees in writing is not Confidential Information\n(c) "Discussion Information" has the meaning provided in Section 3(c).\n(d) "Disclosing Party" means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed, in\nany particular circumstance.\n(e) "Exchange Act" means the Securities Exchange Act of 1934 as amended.\n(f)\n"Receiving Party" means the Party receiving Confidential Information or on whose behalf Confidential Information is received, in any\nparticular circumstance.\n(g) "person" will be broadly interpreted to include individuals, any corporation, partnership, group, individual or other entity and the\nmedia.\n(h) "Possible Transaction" means a possible negotiated business combination between the Parties.\n(i) "Representatives" means (i) with respect to the Potential Relationship Party, the Potential Relationship Party's officers, managers,\ndirectors, general partners, employees, outside counsel, accountants, consultants, financial advisors, and potential sources of equity or debt\nfinancing (and their respective counsel), and (ii) with respect to the Company, will include its officers, directors, employees, agents, partners and\nadvisors and those of its subsidiaries, Affiliates and/or divisions (including attorneys, accountants, consultants and financial advisors).\n(j) "Standstill Period" means the six months period commencing on the date of this Agreement.\nSection 2. Disclosure of Confidential Information. In connection with the consideration of a Possible Transaction, the Company and the\nPotential Relationship Party may deliver or make available (or prior to the date hereof may have delivered or made available) to the other and its\nRepresentatives certain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such\ninformation being furnished to the Receiving Party and the Receiving Party's Representatives, the Receiving Party agrees that the Receiving\nParty will, and will cause the Receiving Party's Representatives to, treat the Confidential Information in accordance with the provisions of this\nAgreement and take or abstain from taking certain other actions as set forth herein. Notwithstanding any other provision of this Agreement,\nneither Party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation\nnot specified herein; or (d) prohibiting either Party from associating themselves with competitors of the other Party for purposes substantially\nsimilar to those involved herein.\nSection 3. Use and Non-Disclosure of Confidential Information and Discussion Information.\n(a) The Receiving Party hereby agrees that the Receiving Party and the Receiving Party's Representatives will use Confidential\nInformation of the Disclosing Party solely for the purpose of evaluating and negotiating a Possible Transaction with the Disclosing Party and for\nno other purpose, and that such Confidential Information will not be used in any way detrimental to the Disclosing Party. The Receiving Party\nfurther agrees that it will and will cause its Representatives to take those steps the Receiving Party takes to protect its own similar proprietary and\nconfidential information (which will not be less than a reasonable standard of care) to keep the Confidential Information of the Disclosing Party\nconfidential; provided, however, that (i) the Receiving Party may make any disclosure of the Confidential Information to which the Disclosing\nParty gives its prior written consent\nPage 2 of 11\nand (ii) any of the Confidential Information may be disclosed to the Receiving Party's Representatives who need to know such information for\nthe purpose of evaluating a Possible Transaction, who are provided with a copy of this Agreement and who agree to be bound by the terms this\nAgreement. The Parties will maintain a list of those Representatives to whom Confidential Information has been disclosed (which list will be\npresented to the Party upon the other Party's request). In any event, the Receiving Party agrees to undertake reasonable precautions to safeguard\nand protect the confidentiality of the Confidential Information, to accept responsibility for any breach of this Agreement by the Receiving Party\nor any of the Receiving Party's Representatives, and, at the Receiving Party's sole expense, to take all reasonable measures (including court\nproceedings) to restrain the Receiving Party and the Receiving Party's Representatives from prohibited or unauthorized disclosure or uses of the\nConfidential Information.\n(b) Notwithstanding any other provision of this Agreement:\n(i) the Receiving Party or its Representatives may disclose Confidential Information of the Disclosing Party if required in order to\nestablish its rights under this Agreement, but only to the extent such disclosure is necessary and provided that the Receiving Party seeks\nconfidential treatment of the Confidential Information to be disclosed;\n(ii) this Agreement will not prohibit or restrict either Party's right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other Party disclosed in the Confidential Information as long as such Party does not\nthereby breach this Agreement. Each Party acknowledges that the other may already possess or have developed products or services\nsimilar\nto or competitive with those of the other Party disclosed in the Confidential Information; and\n(iii) either Party will be free to use for any purpose the residuals resulting from access to or work with Confidential Information\ndisclosed hereunder. The term "residuals" means information in non-tangible form which may be retained in the unaided memory by\npersons who have had access to the Confidential Information so long as such persons have not studied the information for the purpose of\nreplicating the same from memory. Neither Party shall have any obligation to limit or restrict the assignment of such persons or to pay\nroyalties for any work resulting from the use of residuals.\n(c) Each Party agrees that, without the prior written consent of the other Party, neither it nor its Representatives will disclose to any other\nperson the fact that the other Party or its Representative have received Confidential Information or that Confidential Information has been made\navailable to the other Party or its Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status this Agreement and the\nidentity of the parties hereto (collectively, the "Discussion Information"), provided that the Receiving Party may make such disclosure if required\nby law or the applicable rules of any securities exchange or interdealer quotation system. The Potential Relationship Party further agrees that,\nwithout the prior written consent of the Company (which shall not be unreasonably withheld or denied), the Potential Relationship Party and the\nPotential Relationship Party's Representatives will not, directly or indirectly, consult or share Confidential Information or Discussion\nInformation with, or enter into any agreement, arrangement or understanding, or any discussions which might lead to any such agreement,\narrangement or understanding, with any co-investor, source of equity financing or other person (other than the Company) regarding a Possible\nTransaction, including discussions or other communications with any prospective bidder for the Company with respect to (i) whether or not the\nReceiving Party or such other prospective bidder will make a bid or offer for the Disclosing Party or (ii) the price that the Receiving Party or\nsuch other bidder may bid or offer for the Disclosing Party.\n(d) To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or\nany\nother\napplicable\nprivilege\nconcerning\npending\nor\nthreatened\nlegal\nproceedings\nor\ngovernmental\ninvestigations,\nthe\nParties\nunderstand\nand\nagree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and will not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidentia Information provided by\na\nParty that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege will remain entitled to\nsuch protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to\nreveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nPage 3 of 11\nSection 4. Required Actions if Disclosure is Legally Sought or Compelled. In the event that the Receiving Party or any of the Receiving Party's\nRepresentatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings,\nsubpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information or Discussion Information, the\nReceiving Party will provide the Disclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may\nin its sole discretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If,\nin\nthe absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of the Receiving\nParty's Representatives are nonetheless, in the written opinion of outside legal counsel, legally compelled to disclose Confidential Information or\nDiscussion Information to any tribunal, the Receiving Party or the Receiving Party's Representatives may, without liability hereunder, disclose to\nsuch tribunal only that portion of the Confidential Information or Discussion Information which such counsel advises the Receiving Party is\nlegally required to be disclosed, provided that the Receiving Party will use the Receiving Party's reasonable best efforts to preserve the\nconfidentiality of the Confidential Information and the Discussion Information, including by cooperating with the Disclosing Party to obtain\nan\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information and the\nDiscussion Information by such tribunal; and provided further that the Receiving Party will promptly notify the Disclosing Party of (i) the\nReceiving Party's determination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nSection 5. Return and Destruction of Confidential Information. In the event that the Receiving Party decides not to proceed with a Possible\nTransaction, the Receiving Party will promptly inform the Disclosing Party of that decision. In that case, or at any time upon the request of the\nDisclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing Party promptly deliver, at the\nReceiving Party's expense, to the Disclosing Party or destroy all Confidential Information furnished to the Receiving Party or the Receiving\nParty's Representatives by or on behalf of the Disclosing Party pursuant hereto. In the event of such a decision or request, all other Confidential\nInformation prepared by the Receiving Party or on the Receiving Party's behalf will be returned or destroyed and, upon the Disclosing Party's\nrequest, the Receiving Party will provide the Disclosing Party with prompt written confirmation of the Receiving Party's compliance with\nthis\nparagraph; provided, however, that\n(a) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material will not be destroyed until\nthe\nproceeding is settled or a final judgment with respect thereto has been rendered;\n(b) the Receiving Party will not, in connection with the foregoing obligations, be required to identify or delete Confidential Information\nheld electronically in archive or back-up systems in accordance with general systems archiving or backup policies and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential\nInformation so archived or backed-up;\n(c) the Receiving Party will not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the\nReceiving Party is required to retain a copy pursuant to applicable law; and\n(d) one copy of all Confidential Information may be kept by the Receiving Party's outside counsel, if any, and such Confidential\nInformation shall be fully protected by attorney-client privilege.\nNotwithstanding the return, destruction or continued possession pursuant to the terms of this Section 5 of the Confidential Information, the\nReceiving Party and the Receiving Party's Representatives will continue to be bound by the Receiving Party's obligations of confidentiality and\nother obligations and agreements hereunder.\nSection 6. No Agreement. Each Patty understands and agrees that no contract or agreement providing for any Possible Transaction will be\ndeemed to exist between the Parties unless and until a final definitive agreement has been executed and delivered, and each Party hereby waives,\nin advance, any claims (including breach of\nPage 4 of 11\ncontract) in connection with any Possible Transaction unless and until the Parties will have entered into a final definitive agreement. The Parties\nalso agree that unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will\nbe under any legal obligation of any kind whatsoever with respect to such a Possible Transaction by virtue of this Agreement, except for the\nmatters specifically agreed to herein. The Company further reserves the right, in its sole discretion, with due notice to reject any and all proposals\nmade by the Potential Relationship Party or any of its Representatives with regard to a Possible Transaction to determine not to engage in\ndiscussions or negotiations and to terminate discussions and negotiations with the Potential Relationship Party at any time, and to conduct,\ndirectly or through any of its Representatives, any process for any transaction involving the Company or any of its subsidiaries, if and as they in\ntheir sole discretion determine (including negotiating with any other interested parties and entering into a definitive agreement without prior\nnotice to the Potential Relationship Party or any other person).\nSection 7. Representations and Warranties. Each Party represents and warrants to the other Party that it has the right to enter into this\nAgreement and that this Agreement is a valid and binding obligation of such Party relating to the matters herein. Each Party further represents\nand warrants that the terms of this Agreement are not inconsistent with other contractual obligations, express or implied, which such Party may\nhave or any law applicable to such Party or its business. The Receiving Party understands, acknowledges and agrees that neither the Disclosing\nParty nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the\nConfidential Information by virtue of this Agreement. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives\nwill have any liability to the Receiving Party or to any of the Receiving Party's Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom.\nSection 8. Material Non-Public Information. The Receiving Party acknowledges and agrees that the Receiving Party is aware (and that the\nReceiving Party's Representatives are aware or, upon receipt of any Confidential Information or Discussion Information, will be advised by the\nReceiving Party) that (a) the Confidential Information being furnished to the Receiving Party or the Receiving Party's Representatives contains\nmaterial, non-public information regarding the Disclosing Party and (b) the United States and other non-U.S. securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this Agreement, including the Discussion Information,\nfrom purchasing or selling securities of a company which may be a party to a transaction of the type contemplated by this Agreement or from\ncommunicating such information to any person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor\nsell such securities in reliance upon such information.\nSection 9. No Solicitation. In consideration of the Confidential Information being furnished hereunder, each Party agrees that, for a period of\nsix months from the date of this Agreement, such Party will not, directly or indirectly, solicit for employment with such Party or any of its\nAffiliates, any of the officers or employees of the other Party or its Affiliates (a) with whom such Party has had contact during the evaluation of a\nPossible Transaction or (b) who were identified by name and function to such Party by an officer or employee of the other Party with whom such\nParty or its Representatives had contact during the evaluation of a Possible Transaction. For the avoidance of doubt, employees whose names are\nprovided by the other Party in response to a request made by such Party or its Representatives during the evaluation of a Possible Transaction are\ncovered by this non-solicitation obligation. Notwithstanding the foregoing, nothing herein shall restrict or preclude either Party from (i) making\ngeneralized searches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (ii) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other Party, (iii) hiring an employee of the other Party who\nfirst initiates an employment discussion with such Party, in each case, so long as such Party has not violated the restrictions on solicitation\ncontained in this Agreement or (iv) if the employee is no more on the rolls of the Party.\nPage 5 of 11\nSection 10. Standstill.\n(a) As of the date of this Agreement, neither the Potential Relationship Party nor any of the Potential Relationship Party's Representatives\nacting on the Potential Relationship Party's behalf, or any person with whom any of the foregoing may be deemed to be acting in concert with\nrespect to the Company or its securities, owns any securities of the Company to the best of their knowledge, information and belief and shall not\nown more than 5% during the tenure of this Agreement. The Potential Relationship Party agrees that during the Standstill Period unless\nspecifically invited in writing by the Company, neither the Potential Relationship Party nor any of the Potential Relationship Party's Affiliates,\nsubsidiaries or Representatives acting on the Potential Relationship Party's behalf or on behalf of other persons acting in concert with the\nPotential Relationship Party will in any manner, directly or indirectly:\n(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate\nin or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect\nor participate in: (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or\nbeneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries or Affiliates; (ii) any\ntender or exchange offer, merger or other business combination involving the Company, any of the subsidiaries or Affiliates or assets of the\nCompany or its subsidiaries or its Affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries\nor Affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company\nor any of its subsidiaries or Affiliates,\n(ii) make, or in any way participate in, directly or indirectly, (i) any "solicitation" of "proxies" (as such terms are used in the rules of\nthe Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of any\nvoting securities of the Company or (ii) any demand for a copy of the Company's stock ledger, list of stockholders or any other books and\nrecords of the Company;\n(iii) form, join or in any way participate in a "group" (as defined under the Exchange Act) with respect to the Company or otherwise\nact in concert with any person in respect of any such securities;\n(iv) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of\nDirectors or policies of the Company or to obtain representation on the Board of Directors of the Company;\n(v) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding\nany of the types of matters set forth in (i) above; or\n(vi) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\n(b) Notwithstanding the foregoing, the provisions of ARTICLE I Section 10(a), the Potential Relationship Party or any of the Potential\nRelationship Party's Affiliates, subsidiaries or Representatives acting on the Potential Relationship Party's behalf may at any time and from time\nto time submit to the Board of Directors of the Company one or more offers, proposals or indications of interest related to a Possible Transaction\nthat would otherwise be prohibited by ARTICLE I Section 10(a), provided that each such submission is made on a confidential basis, does not\nstate an intention to make a public announcement related to the text or contents of such submission or discussion and is made in a manner that\ncould not reasonably be expected to cause the Company to need to make public disclosure thereof.\n(c) The Potential Relationship Party also agrees during the Standstill Period not to request that the Company or any of its Representatives,\ndirectly or indirectly, amend or waive any provision of this ARTICLE I Section 10.\n(d) The Potential Relationship Party agrees that, if at any time during the Standstill Period, the Potential Relationship Party or any of the\nPotential Relationship Party's Affiliates or subsidiaries or Representatives acting on the Potential Relationship Party's behalf are approached by\nany third party concerning the Potential Relationship Party's or their participation in a transaction involving any assets, indebtedness or business\nof, or securities issued by, the Company or any of its subsidiaries, the Potential Relationship Party will promptly inform the Company of the\nnature of such transaction and the parties involved.\nPage 6 of 11\n(e) The banks approached by the Potential Relationship Party for the purpose of financing would be subject to confidentiality obligations as\nset\nforth in said Section 3, without, however, requiring such recipient bank, or its representatives, to make the Standstill undertakings stipulated\nin the current Section 10 of the Agreement.\n(f) The non-solicitation and stand-still obligations under Sections 9 and 10 will cease to apply on completion of the transaction.\nSection 11. Miscellaneous.\n(a) Notices. All notices, requests, claims, demands and other communications hereunder will be given in writing and will be deemed given\nand effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif,\n.jpeg or similar electronic attachment at the facsimile number or email address, respectively, specified for the relevant receiving Party before 5:30\np.m. (in the time zone of the receiving Party) on a business day (in the time zone of the receiving Party), (ii) the next business day after the date\nof transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif, .jpeg or similar electronic attachment at\nthe facsimile number or email address, respectively, specified for the relevant receiving Party on a day that is not a business day or later than 5:30\np.m. on any business day (in each case, in the time zone of the receiving Party), (iii) one business day following the date of deposit with a\nnationally recognized overnight courier service for delivery on the following business day, or (iv) upon actual receipt by the party to whom such\nnotice\nis\nrequired to be given, but if delivery is not accepted, then on the date delivery is refused. The addresses, facsimile numbers and email\naddresses for such notices and communications are those set forth below, or such other address, facsimile number or email address as may be\ndesignated in writing after the Effective Date, in the same manner, by any such person:\nif to the Potential Relationship Party:\nSUN PHARMACEUTICAL INDUSTRIES LTD\nAcme Plaza, Andheri - Kurla Road,\nAndheri - East, Mumbai - 400 059,\nMaharashtra, India\nAttention: Mr. Ashok I. Bhuta\nFacsimile: +91 22 6184 8686\nEmail: :Ashok.Bhuta@sunpharma.com\nwith a copy (which will not constitute notice) to:\nS. H. Bathiya & Associates\n2, Tardeo AC Market,\n4th Floor, Tardeo Road,\nMumbai - 400 034\nAttention: Shailesh H. Bathiya\nFacsimile: +91 22 4355 8080\nEmail: shb@shbathiya.com\nif to the Company:\nInSite Vision Incorporation\n965 Atlantic Ave.\nAlameda, CA 94501\nAttention: Timothy Ruane\nFacsimile: (510) 865-5700\nEmail: TRuane@insite.com\nPage 7 of 11\nwith a copy (which will not constitute notice) to:\nJones Day\n1755 Embarcadero Road\nPalo Alto, CA 94303\nAttention: Timothy Curry & Jonn Beeson\nFacsimile: 1-650-739-3900\nEmail: tcurry@jonesday.com & jbeeson@jonesday.com\n(b) Severability. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity will not be deemed to affect any other provision of this Agreement or the validity of the\nremainder of this Agreement, and such invalid provision will be replaced with a valid provision that as closely as possible reflects the Parties'\nintent with respect to such invalid provision.\n(c) Entire Agreement. This Agreement contains the entire agreement between the Parties regarding its subject matter and supersedes all\nprior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter, provided that any\nconfidentiality or non-disclosure existing between the parties prior to the date of this Agreement will continue to apply to disclosures made prior\nto the date of this Agreement.\n(d) Successors. This Agreement will inure to the benefit of, and be enforceable by, the Parties and each of their successors and assigns.\n(e) Remedies. It is understood and agreed that money damages would not be an adequate remedy for any breach of this Agreement by a\nParty or any of its Representatives and that a Party will be entitled to equitable relief, including injunction and specific performance, as a remedy\nfor any such breach by the other Party. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will\nbe\nin addition to all other remedies available at law or in equity. Each Party further agrees not to raise as a defense or objection to the request or\ngranting of such relief that any breach of this Agreement is or would be compensable by an award of money damages, and the Parties agree\nto\nwaive any requirements for the securing or posting of any bond in connection with such remedy. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines (in a judgment not subject to further appeal or for which the time for appeal has\nexpired), that a Party or any of its Representatives has breached this Agreement, then such Party will be liable and pay to the other Party the\nreasonable legal fees incurred by the other Party in connection with such litigation, including any appeal therefrom. If such court determines (in a\njudgment not subject to further appeal or for which the time for appeal has expired) that neither Party or its Representatives has breached this\nAgreement, then each Party will pay their own legal fees incurred in connection with such litigation and any appeal therefrom.\n(f) Third Party Beneficiaries. Each Party agrees that nothing herein expressed or implied is intended to confer upon or give any rights or\nremedies to any other person under or by reason of this Agreement.\n(g) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to\nagreements made and to be performed entirely within the State of Delaware, without regard to the conflict of law provisions that would result in\nthe application of the laws of any other jurisdiction.\n(h) Forum. Each Party irrevocably and unconditionally submits to the exclusive personal jurisdiction of the chancery courts of the State of\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), for any actions, suits or proceedings arising out of or relating to this Agreement (and each Party\nagrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process,\nsummons, notice or document by U.S. registered mail to such Party's address set forth above will be effective service of process for any action,\nsuit or proceeding brought against such Party in any such court). Each Party irrevocably and unconditionally waives any objection that such\nParty may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of this Agreement in the chancery courts of\nthe State of\nPage 8 of 11\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any Federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court\nthat any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(i) Waiver of Jury Trial. EACH OF THE PARTIES WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY\nRIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,\nUNDER OR IN CONNECTION WITH THIS AGREEMENT. Each of the Parties (A) certifies that no representative, agent or attorney of the\nother Party has represented, expressly or otherwise, that the other Party would not, in the event of litigation, seek to enforce the foregoing waiver\nand (B) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this\nARTICLE I Section 11(i).\n(j) Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or\nsimilar attachment in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed and delivered\nwill be deemed to be an original but all of which taken together will constitute one and the same agreement. Any such counterpart, to the extent\ndelivered using facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment will be treated in all manner and respects as an\noriginal executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof\ndelivered in person.\n(k) No Waiver of Rights. No failure or delay by either Party in exercising any right, power or privilege under this Agreement will operate\nas a waiver, nor will any single or partial exercise under this Agreement preclude any other or further exercise under this Agreement or the\nexercise of any other right, power or privilege hereunder.\n(1) No Modification. No provision in this Agreement can be waived, modified or amended except by written consent of the Party against\nwhom enforcement is sought, which consent will specifically refer to the provision to be waived, modified or amended and will explicitly make\nsuch waiver, modification or amendment.\n(m) Inquiries. All inquiries for information about the Company and its subsidiaries and communications with the Company will be made\nthrough\n1 or through an employee or person who has contacted the Potential Relationship Party for and on behalf of the Company.\nNeither the Potential Relationship Party nor any of its Representatives will contact any third party with whom the Company or any of its\nsubsidiaries has a business or other relationship (including any director, officer, employee, customer, supplier, stockholder or creditor of\nthe\nCompany or any of its subsidiaries) in connection with a Possible Transaction without the Company's prior written consent unless such person\nhas contacted the Potential Relationship Party for and on behalf of the Company.\n(n) Term. This Agreement and all obligations will terminate three years from the date of this Agreement.\n(o) General Interpretation. Each of the Parties has been represented by independent counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and each has executed this Agreement with the advice of said independent counsel. Each Party\nand its counsel participated in the preparation of this Agreement, and any and all drafts of this Agreement exchanged among the Parties will be\ndeemed the work product of all of the Parties and may not be construed against any Party by reason of its drafting or preparation. Each of the\nParties waives the application of any law or rule of construction providing that ambiguities in an agreement or other document will be construed\nagainst the party drafting such agreement or document. In this Agreement, except to the extent otherwise provided or that the context otherwise\nrequires:\n(i) the headings in this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this\nAgreement;\nPage 9 of 11\n(ii) whenever the words "include," "includes" or "including" are used in this Agreement, they are deemed to be followed by the\nwords "without limitation;"\n(iii) the use of "or" is not intended to be exclusive, unless expressly indicated otherwise; and\n(iv) words importing the singular include the plural and vice versa and words importing gender include all genders.\n[Remainder of Page Intentionally Left Blank - Signature Page Follows]\nPage 10 of 11\nINSITE VISION INCORPORATION\nBy: /s/ Lyle Bowman\nName: Lyle Bowman\nTitle: Vice President\nSUN PHARMACEUTICAL INDUSTRIES LTD\nBy: /s/ Uday Baldota\nName: Uday Baldota\nTitle: Senior Vice President	EX-99.D.5 9 d96542dex99d5.htm EX-99.D.5\nEXHIBIT (d)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) is dated as of 31st January, 2014 (the “Effective Date”) and is entered into between\nInSite Vision Incorporation, a Delaware corporation (the “Company”), and SUN PHARMACEUTICAL INDUSTRIES LTD., a company\nregistered and existing in India under the Companies Act, 1956, with its registered office at SPARC, Tandalja, Baroda – 390 020, Gujarat, India\nand its corporate office at Acme Plaza, Andheri – Kuria Road, Andheri – East, Mumbai – 400 059, Maharashtra, India (the “Potential\nRelationship Party”). Each of the Company and the Potential Relationship Party are sometimes referred to herein as a “Party” and together as\nthe “Parties.” In consideration of the mutual covenants contained herein, the Potential Relationship Party and the Company, intending to be\nlegally bound hereby, agree to the following:\nSection 1. Definitions. For purposes of this Agreement:\n(a) “Affiliate” of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled\nby, or is under common control with, such specified person.\n(b) “Confidential Information” means all information relating, directly or indirectly, to the Disclosing Party or the business, products,\nmarkets, research and development, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of\nthe Disclosing Party, the business of any customer or partner of the Disclosing Party, any information about or concerning any third party (which\ninformation was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party) and any product\nofferings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data,\nschematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies of the\nDisclosing Party (in each case, whether prepared by the Disclosing Party, its Representatives or otherwise) which is delivered, disclosed or\nfurnished by or on behalf of the Disclosing Party to the Receiving Party or to its Representatives, before, on or after the date of this Agreement,\nregardless of the manner in which it is delivered, disclosed or furnished, and will also be deemed to include all notes, analyses, compilations,\nstudies, forecasts, interpretations or other documents prepared by the Receiving Party or its Representatives that contain, reflect or are based\nupon, in whole or in part, the information delivered, disclosed or furnished to the Receiving Party or its Representatives pursuant to this\nAgreement. Notwithstanding any other provision of this Agreement, the term Confidential Information will not include information which:\n(i) is or becomes generally available to the public, through no fault of the Receiving Party or its Representatives; provided, however,\nthat specific aspects or details of Confidential Information will not be deemed to be within the public domain, or in the possession of the\nReceiving Party in accordance with Section (b)(ii), merely because the Confidential Information is embraced by more general information\nin the public domain or in the possession of the Receiving Party. Further, any combination of Confidential Information will not be\nconsidered in the public domain or in the possession of the Receiving Party in accordance with Section (b)(ii) merely because individual\nelements of such Confidential Information are in the public domain or in the possession of the Receiving Party unless the combination and\nits principles are in the public domain or in the possession of the Receiving Party;\n(ii) can be demonstrated by documentation or competent proof to have been in the possession of the Receiving Party before its being\nfurnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the Receiving Party does not know, or have a\nreasonable basis for concluding, that the source of such information was bound by a confidentiality agreement with, or other contractual,\nlegal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information;\n(iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of its\nRepresentatives, provided that the Receiving Party does not know or have reason to believe that the source is bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party with respect to such\ninformation; or\n(iv) the Disclosing Party agrees in writing is not Confidential Information.\n(c) “Discussion Information” has the meaning provided in Section 3(c).\n(d) “Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed, in\nany particular circumstance.\n(e) “Exchange Act” means the Securities Exchange Act of 1934 as amended.\n(f) “Receiving Party” means the Party receiving Confidential Information or on whose behalf Confidential Information is received, in any\nparticular circumstance.\n(g) “person” will be broadly interpreted to include individuals, any corporation, partnership, group, individual or other entity and the\nmedia.\n(h) “Possible Transaction” means a possible negotiated business combination between the Parties.\n(i) “Representatives” means (i) with respect to the Potential Relationship Party, the Potential Relationship Party’s officers, managers,\ndirectors, general partners, employees, outside counsel, accountants, consultants, financial advisors, and potential sources of equity or debt\nfinancing (and their respective counsel), and (ii) with respect to the Company, will include its officers, directors, employees, agents, partners and\nadvisors and those of its subsidiaries, Affiliates and/or divisions (including attorneys, accountants, consultants and financial advisors).\n(j) “Standstill Period” means the six months period commencing on the date of this Agreement.\nSection 2. Disclosure of Confidential Information. In connection with the consideration of a Possible Transaction, the Company and the\nPotential Relationship Party may deliver or make available (or prior to the date hereof may have delivered or made available) to the other and its\nRepresentatives certain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such\ninformation being furnished to the Receiving Party and the Receiving Party’s Representatives, the Receiving Party agrees that the Receiving\nParty will, and will cause the Receiving Party’s Representatives to, treat the Confidential Information in accordance with the provisions of this\nAgreement and take or abstain from taking certain other actions as set forth herein. Notwithstanding any other provision of this Agreement,\nneither Party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation\nnot specified herein; or (d) prohibiting either Party from associating themselves with competitors of the other Party for purposes substantially\nsimilar to those involved herein.\nSection 3. Use and Non-Disclosure of Confidential Information and Discussion Information.\n(a) The Receiving Party hereby agrees that the Receiving Party and the Receiving Party’s Representatives will use Confidential\nInformation of the Disclosing Party solely for the purpose of evaluating and negotiating a Possible Transaction with the Disclosing Party and for\nno other purpose, and that such Confidential Information will not be used in any way detrimental to the Disclosing Party. The Receiving Party\nfurther agrees that it will and will cause its Representatives to take those steps the Receiving Party takes to protect its own similar proprietary and\nconfidential information (which will not be less than a reasonable standard of care) to keep the Confidential Information of the Disclosing Party\nconfidential; provided, however, that (i) the Receiving Party may make any disclosure of the Confidential Information to which the Disclosing\nParty gives its prior written consent\nPage2of11\nand (ii) any of the Confidential Information may be disclosed to the Receiving Party’s Representatives who need to know such information for\nthe purpose of evaluating a Possible Transaction, who are provided with a copy of this Agreement and who agree to be bound by the terms this\nAgreement. The Parties will maintain a list of those Representatives to whom Confidential Information has been disclosed (which list will be\npresented to the Party upon the other Party’s request). In any event, the Receiving Party agrees to undertake reasonable precautions to safeguard\nand protect the confidentiality of the Confidential Information, to accept responsibility for any breach of this Agreement by the Receiving Party\nor any of the Receiving Party’s Representatives, and, at the Receiving Party’s sole expense, to take all reasonable measures (including court\nproceedings) to restrain the Receiving Party and the Receiving Party’s Representatives from prohibited or unauthorized disclosure or uses of the\nConfidential Information.\n(b) Notwithstanding any other provision of this Agreement:\n(i) the Receiving Party or its Representatives may disclose Confidential Information of the Disclosing Party if required in order to\nestablish its rights under this Agreement, but only to the extent such disclosure is necessary and provided that the Receiving Party seeks\nconfidential treatment of the Confidential Information to be disclosed;\n(ii) this Agreement will not prohibit or restrict either Party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other Party disclosed in the Confidential Information as long as such Party does not\nthereby breach this Agreement. Each Party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other Party disclosed in the Confidential Information; and\n(iii) either Party will be free to use for any purpose the residuals resulting from access to or work with Confidential Information\ndisclosed hereunder. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by\npersons who have had access to the Confidential Information so long as such persons have not studied the information for the purpose of\nreplicating the same from memory. Neither Party shall have any obligation to limit or restrict the assignment of such persons or to pay\nroyalties for any work resulting from the use of residuals.\n(c) Each Party agrees that, without the prior written consent of the other Party, neither it nor its Representatives will disclose to any other\nperson the fact that the other Party or its Representative have received Confidential Information or that Confidential Information has been made\navailable to the other Party or its Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status this Agreement and the\nidentity of the parties hereto (collectively, the “Discussion Information”), provided that the Receiving Party may make such disclosure if required\nby law or the applicable rules of any securities exchange or interdealer quotation system. The Potential Relationship Party further agrees that,\nwithout the prior written consent of the Company (which shall not be unreasonably withheld or denied), the Potential Relationship Party and the\nPotential Relationship Party’s Representatives will not, directly or indirectly, consult or share Confidential Information or Discussion\nInformation with, or enter into any agreement, arrangement or understanding, or any discussions which might lead to any such agreement,\narrangement or understanding, with any co-investor, source of equity financing or other person (other than the Company) regarding a Possible\nTransaction, including discussions or other communications with any prospective bidder for the Company with respect to (i) whether or not the\nReceiving Party or such other prospective bidder will make a bid or offer for the Disclosing Party or (ii) the price that the Receiving Party or\nsuch other bidder may bid or offer for the Disclosing Party.\n(d) To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and\nagree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and will not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a\nParty that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege will remain entitled to\nsuch protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to\nreveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nPage3of11\nSection 4. Required Actions if Disclosure is Legally Sought or Compelled. In the event that the Receiving Party or any of the Receiving Party’s\nRepresentatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings,\nsubpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information or Discussion Information, the\nReceiving Party will provide the Disclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may\nin its sole discretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in\nthe absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of the Receiving\nParty’s Representatives are nonetheless, in the written opinion of outside legal counsel, legally compelled to disclose Confidential Information or\nDiscussion Information to any tribunal, the Receiving Party or the Receiving Party’s Representatives may, without liability hereunder, disclose to\nsuch tribunal only that portion of the Confidential Information or Discussion Information which such counsel advises the Receiving Party is\nlegally required to be disclosed, provided that the Receiving Party will use the Receiving Party’s reasonable best efforts to preserve the\nconfidentiality of the Confidential Information and the Discussion Information, including by cooperating with the Disclosing Party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information and the\nDiscussion Information by such tribunal; and provided further that the Receiving Party will promptly notify the Disclosing Party of (i) the\nReceiving Party’s determination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nSection 5. Return and Destruction of Confidential Information. In the event that the Receiving Party decides not to proceed with a Possible\nTransaction, the Receiving Party will promptly inform the Disclosing Party of that decision. In that case, or at any time upon the request of the\nDisclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing Party promptly deliver, at the\nReceiving Party’s expense, to the Disclosing Party or destroy all Confidential Information furnished to the Receiving Party or the Receiving\nParty’s Representatives by or on behalf of the Disclosing Party pursuant hereto. In the event of such a decision or request, all other Confidential\nInformation prepared by the Receiving Party or on the Receiving Party’s behalf will be returned or destroyed and, upon the Disclosing Party’s\nrequest, the Receiving Party will provide the Disclosing Party with prompt written confirmation of the Receiving Party’s compliance with this\nparagraph; provided, however, that\n(a) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material will not be destroyed until the\nproceeding is settled or a final judgment with respect thereto has been rendered;\n(b) the Receiving Party will not, in connection with the foregoing obligations, be required to identify or delete Confidential Information\nheld electronically in archive or back-up systems in accordance with general systems archiving or backup policies and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential\nInformation so archived or backed-up;\n(c) the Receiving Party will not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the\nReceiving Party is required to retain a copy pursuant to applicable law; and\n(d) one copy of all Confidential Information may be kept by the Receiving Party’s outside counsel, if any, and such Confidential\nInformation shall be fully protected by attorney-client privilege.\nNotwithstanding the return, destruction or continued possession pursuant to the terms of this Section 5 of the Confidential Information, the\nReceiving Party and the Receiving Party’s Representatives will continue to be bound by the Receiving Party’s obligations of confidentiality and\nother obligations and agreements hereunder.\nSection 6. No Agreement. Each Patty understands and agrees that no contract or agreement providing for any Possible Transaction will be\ndeemed to exist between the Parties unless and until a final definitive agreement has been executed and delivered, and each Party hereby waives,\nin advance, any claims (including breach of\nPage4of11\ncontract) in connection with any Possible Transaction unless and until the Parties will have entered into a final definitive agreement. The Parties\nalso agree that unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will\nbe under any legal obligation of any kind whatsoever with respect to such a Possible Transaction by virtue of this Agreement, except for the\nmatters specifically agreed to herein. The Company further reserves the right, in its sole discretion, with due notice to reject any and all proposals\nmade by the Potential Relationship Party or any of its Representatives with regard to a Possible Transaction to determine not to engage in\ndiscussions or negotiations and to terminate discussions and negotiations with the Potential Relationship Party at any time, and to conduct,\ndirectly or through any of its Representatives, any process for any transaction involving the Company or any of its subsidiaries, if and as they in\ntheir sole discretion determine (including negotiating with any other interested parties and entering into a definitive agreement without prior\nnotice to the Potential Relationship Party or any other person).\nSection 7. Representations and Warranties. Each Party represents and warrants to the other Party that it has the right to enter into this\nAgreement and that this Agreement is a valid and binding obligation of such Party relating to the matters herein. Each Party further represents\nand warrants that the terms of this Agreement are not inconsistent with other contractual obligations, express or implied, which such Party may\nhave or any law applicable to such Party or its business. The Receiving Party understands, acknowledges and agrees that neither the Disclosing\nParty nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the\nConfidential Information by virtue of this Agreement. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives\nwill have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom.\nSection 8. Material Non-Public Information. The Receiving Party acknowledges and agrees that the Receiving Party is aware (and that the\nReceiving Party’s Representatives are aware or, upon receipt of any Confidential Information or Discussion Information, will be advised by the\nReceiving Party) that (a) the Confidential Information being furnished to the Receiving Party or the Receiving Party’s Representatives contains\nmaterial, non-public information regarding the Disclosing Party and (b) the United States and other non-U.S . securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this Agreement, including the Discussion Information,\nfrom purchasing or selling securities of a company which may be a party to a transaction of the type contemplated by this Agreement or from\ncommunicating such information to any person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or\nsell such securities in reliance upon such information.\nSection 9. No Solicitation. In consideration of the Confidential Information being furnished hereunder, each Party agrees that, for a period of\nsix months from the date of this Agreement, such Party will not, directly or indirectly, solicit for employment with such Party or any of its\nAffiliates, any of the officers or employees of the other Party or its Affiliates (a) with whom such Party has had contact during the evaluation of a\nPossible Transaction or (b) who were identified by name and function to such Party by an officer or employee of the other Party with whom such\nParty or its Representatives had contact during the evaluation of a Possible Transaction. For the avoidance of doubt, employees whose names are\nprovided by the other Party in response to a request made by such Party or its Representatives during the evaluation of a Possible Transaction are\ncovered by this non-solicitation obligation. Notwithstanding the foregoing, nothing herein shall restrict or preclude either Party from (i) making\ngeneralized searches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (ii) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other Party, (iii) hiring an employee of the other Party who\nfirst initiates an employment discussion with such Party, in each case, so long as such Party has not violated the restrictions on solicitation\ncontained in this Agreement or (iv) if the employee is no more on the rolls of the Party.\nPage5of11\nSection 10. Standstill.\n(a) As of the date of this Agreement, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Representatives\nacting on the Potential Relationship Party’s behalf, or any person with whom any of the foregoing may be deemed to be acting in concert with\nrespect to the Company or its securities, owns any securities of the Company to the best of their knowledge, information and belief and shall not\nown more than 5% during the tenure of this Agreement. The Potential Relationship Party agrees that during the Standstill Period, unless\nspecifically invited in writing by the Company, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Affiliates,\nsubsidiaries or Representatives acting on the Potential Relationship Party’s behalf or on behalf of other persons acting in concert with the\nPotential Relationship Party will in any manner, directly or indirectly:\n(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate\nin or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect\nor participate in: (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or\nbeneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries or Affiliates; (ii) any\ntender or exchange offer, merger or other business combination involving the Company, any of the subsidiaries or Affiliates or assets of the\nCompany or its subsidiaries or its Affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries\nor Affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company\nor any of its subsidiaries or Affiliates,\n(ii) make, or in any way participate in, directly or indirectly, (i) any “solicitation” of “proxies” (as such terms are used in the rules of\nthe Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of any\nvoting securities of the Company or (ii) any demand for a copy of the Company’s stock ledger, list of stockholders or any other books and\nrecords of the Company;\n(iii) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the Company or otherwise\nact in concert with any person in respect of any such securities;\n(iv) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of\nDirectors or policies of the Company or to obtain representation on the Board of Directors of the Company;\n(v) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding\nany of the types of matters set forth in (i) above; or\n(vi) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\n(b) Notwithstanding the foregoing, the provisions of ARTICLE I Section 10(a), the Potential Relationship Party or any of the Potential\nRelationship Party’s Affiliates, subsidiaries or Representatives acting on the Potential Relationship Party’s behalf may at any time and from time\nto time submit to the Board of Directors of the Company one or more offers, proposals or indications of interest related to a Possible Transaction\nthat would otherwise be prohibited by ARTICLE I Section 10(a), provided that each such submission is made on a confidential basis, does not\nstate an intention to make a public announcement related to the text or contents of such submission or discussion and is made in a manner that\ncould not reasonably be expected to cause the Company to need to make public disclosure thereof.\n(c) The Potential Relationship Party also agrees during the Standstill Period not to request that the Company or any of its Representatives,\ndirectly or indirectly, amend or waive any provision of this ARTICLE I Section 10.\n(d) The Potential Relationship Party agrees that, if at any time during the Standstill Period, the Potential Relationship Party or any of the\nPotential Relationship Party’s Affiliates or subsidiaries or Representatives acting on the Potential Relationship Party’s behalf are approached by\nany third party concerning the Potential Relationship Party’s or their participation in a transaction involving any assets, indebtedness or business\nof, or securities issued by, the Company or any of its subsidiaries, the Potential Relationship Party will promptly inform the Company of the\nnature of such transaction and the parties involved.\nPage6of11\n(e) The banks approached by the Potential Relationship Party for the purpose of financing would be subject to confidentiality obligations as\nset forth in said Section 3, without, however, requiring such recipient bank, or its representatives, to make the Standstill undertakings stipulated\nin the current Section 10 of the Agreement.\n(f) The non-solicitation and stand-still obligations under Sections 9 and 10 will cease to apply on completion of the transaction.\nSection 11. Miscellaneous.\n(a) Notices. All notices, requests, claims, demands and other communications hereunder will be given in writing and will be deemed given\nand effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif,\n.jpeg or similar electronic attachment at the facsimile number or email address, respectively, specified for the relevant receiving Party before 5:30\np.m. (in the time zone of the receiving Party) on a business day (in the time zone of the receiving Party), (ii) the next business day after the date\nof transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif, .jpeg or similar electronic attachment at\nthe facsimile number or email address, respectively, specified for the relevant receiving Party on a day that is not a business day or later than 5:30\np.m. on any business day (in each case, in the time zone of the receiving Party), (iii) one business day following the date of deposit with a\nnationally recognized overnight courier service for delivery on the following business day, or (iv) upon actual receipt by the party to whom such\nnotice is required to be given, but if delivery is not accepted, then on the date delivery is refused. The addresses, facsimile numbers and email\naddresses for such notices and communications are those set forth below, or such other address, facsimile number or email address as may be\ndesignated in writing after the Effective Date, in the same manner, by any such person:\nif to the Potential Relationship Party:\nSUN PHARMACEUTICAL INDUSTRIES LTD\nAcme Plaza, Andheri – Kurla Road,\nAndheri – East, Mumbai – 400 059,\nMaharashtra, India\nAttention: Mr. Ashok I. Bhuta\nFacsimile: +91 22 6184 8686\nEmail: Ashok.Bhuta@sunpharma.com\nwith a copy (which will not constitute notice) to:\nS. H. Bathiya & Associates\n2, Tardeo AC Market,\n4th Floor, Tardeo Road,\nMumbai – 400 034\nAttention: Shailesh H. Bathiya\nFacsimile: +91 22 4355 8080\nEmail: shb@shbathiya.com\nif to the Company:\nInSite Vision Incorporation\n965 Atlantic Ave.\nAlameda, CA 94501\nAttention: Timothy Ruane\nFacsimile: (510) 865-5700\nEmail: TRuane@insite.com\nPage7of11\nwith a copy (which will not constitute notice) to:\nJones Day\n1755 Embarcadero Road\nPalo Alto, CA 94303\nAttention: Timothy Curry & Jonn Beeson\nFacsimile: 1-650-739-3900\nEmail: tcurry@jonesday.com & jbeeson@jonesday.com\n(b) Severability. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity will not be deemed to affect any other provision of this Agreement or the validity of the\nremainder of this Agreement, and such invalid provision will be replaced with a valid provision that as closely as possible reflects the Parties’\nintent with respect to such invalid provision.\n(c) Entire Agreement. This Agreement contains the entire agreement between the Parties regarding its subject matter and supersedes all\nprior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter, provided that any\nconfidentiality or non-disclosure existing between the parties prior to the date of this Agreement will continue to apply to disclosures made prior\nto the date of this Agreement.\n(d) Successors. This Agreement will inure to the benefit of, and be enforceable by, the Parties and each of their successors and assigns.\n(e) Remedies. It is understood and agreed that money damages would not be an adequate remedy for any breach of this Agreement by a\nParty or any of its Representatives and that a Party will be entitled to equitable relief, including injunction and specific performance, as a remedy\nfor any such breach by the other Party. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be\nin addition to all other remedies available at law or in equity. Each Party further agrees not to raise as a defense or objection to the request or\ngranting of such relief that any breach of this Agreement is or would be compensable by an award of money damages, and the Parties agree to\nwaive any requirements for the securing or posting of any bond in connection with such remedy. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines (in a judgment not subject to further appeal or for which the time for appeal has\nexpired), that a Party or any of its Representatives has breached this Agreement, then such Party will be liable and pay to the other Party the\nreasonable legal fees incurred by the other Party in connection with such litigation, including any appeal therefrom. If such court determines (in a\njudgment not subject to further appeal or for which the time for appeal has expired) that neither Party or its Representatives has breached this\nAgreement, then each Party will pay their own legal fees incurred in connection with such litigation and any appeal therefrom.\n(f) Third Party Beneficiaries. Each Party agrees that nothing herein expressed or implied is intended to confer upon or give any rights or\nremedies to any other person under or by reason of this Agreement.\n(g) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to\nagreements made and to be performed entirely within the State of Delaware, without regard to the conflict of law provisions that would result in\nthe application of the laws of any other jurisdiction.\n(h) Forum. Each Party irrevocably and unconditionally submits to the exclusive personal jurisdiction of the chancery courts of the State of\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), for any actions, suits or proceedings arising out of or relating to this Agreement (and each Party\nagrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process,\nsummons, notice or document by U.S. registered mail to such Party’s address set forth above will be effective service of process for any action,\nsuit or proceeding brought against such Party in any such court). Each Party irrevocably and unconditionally waives any objection that such\nParty may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of this Agreement in the chancery courts of\nthe State of\nPage8of11\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any Federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court\nthat any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(i) Waiver of Jury Trial. EACH OF THE PARTIES WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY\nRIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,\nUNDER OR IN CONNECTION WITH THIS AGREEMENT. Each of the Parties (A) certifies that no representative, agent or attorney of the\nother Party has represented, expressly or otherwise, that the other Party would not, in the event of litigation, seek to enforce the foregoing waiver\nand (B) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this\nARTICLE I Section 11(i).\n(j) Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or\nsimilar attachment in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed and delivered\nwill be deemed to be an original but all of which taken together will constitute one and the same agreement. Any such counterpart, to the extent\ndelivered using facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment will be treated in all manner and respects as an\noriginal executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof\ndelivered in person.\n(k) No Waiver of Rights. No failure or delay by either Party in exercising any right, power or privilege under this Agreement will operate\nas a waiver, nor will any single or partial exercise under this Agreement preclude any other or further exercise under this Agreement or the\nexercise of any other right, power or privilege hereunder.\n(l) No Modification. No provision in this Agreement can be waived, modified or amended except by written consent of the Party against\nwhom enforcement is sought, which consent will specifically refer to the provision to be waived, modified or amended and will explicitly make\nsuch waiver, modification or amendment.\n(m) Inquiries. All inquiries for information about the Company and its subsidiaries and communications with the Company will be made\nthrough [\n] or through an employee or person who has contacted the Potential Relationship Party for and on behalf of the Company.\nNeither the Potential Relationship Party nor any of its Representatives will contact any third party with whom the Company or any of its\nsubsidiaries has a business or other relationship (including any director, officer, employee, customer, supplier, stockholder or creditor of the\nCompany or any of its subsidiaries) in connection with a Possible Transaction without the Company’s prior written consent unless such person\nhas contacted the Potential Relationship Party for and on behalf of the Company.\n(n) Term. This Agreement and all obligations will terminate three years from the date of this Agreement.\n(o) General Interpretation. Each of the Parties has been represented by independent counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and each has executed this Agreement with the advice of said independent counsel. Each Party\nand its counsel participated in the preparation of this Agreement, and any and all drafts of this Agreement exchanged among the Parties will be\ndeemed the work product of all of the Parties and may not be construed against any Party by reason of its drafting or preparation. Each of the\nParties waives the application of any law or rule of construction providing that ambiguities in an agreement or other document will be construed\nagainst the party drafting such agreement or document. In this Agreement, except to the extent otherwise provided or that the context otherwise\nrequires:\n(i) the headings in this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this\nAgreement;\nPage9of11\n(ii) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the\nwords “without limitation;”\n(iii) the use of “or” is not intended to be exclusive, unless expressly indicated otherwise; and\n(iv) words importing the singular include the plural and vice versa and words importing gender include all genders.\n[Remainder of Page Intentionally Left Blank — Signature Page Follows]\nPage 10 of 11\nINSITE VISION INCORPORATION\nBy: /s/ Lyle Bowman\nName: Lyle Bowman\nTitle: Vice President\nSUN PHARMACEUTICAL INDUSTRIES LTD\nBy: /s/ Uday Baldota\nName: Uday Baldota\nTitle: Senior Vice President
c6ea3c2b6270e539f43a6907ccc7cf4c.pdf	effective_date jurisdiction party term	Section 1.\nSection 2.\n2.1\nEX-10 .10 6 lwlg_ex10z10.htm FORM OF DIRECTOR'S NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.10\nDIRECTOR’S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of [_____________], by and between Lightwave Logic, Inc., located at 369\nInverness Parkway, Suite 350, Englewood, CO 80112 (the “Company”); and [___________] (“Director”) whose\naddress is [______________________________] .\nWHEREAS, Company is developing next generation proprietary photonic devices that are based on its advanced\nelectro-optical polymer material systems, which involves the development and utilization of information not generally\nknown in the industry or industries in which the Company is or may become engaged.\nWHEREAS, [the Company desires to appoint the Director as]/[the Director is] a member of the Company’s\nBoard of Directors [and the Director accepts such appointment];\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n“secret information” (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSecret Information\nFor the purposes of this Agreement, “secret information” shall mean information relating to the Company’s\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nNondisclosure of Secret Information\nNon-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director ’s possession remains\nconfidential.\n1\n(a)\n(b)\n(c)\n(d)\n(e)\n2.2\n2.3\nSection 3.\nThe foregoing restrictions shall not be applicable to any information which:\nthe Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\nis now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\nis subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\nis, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\nthe Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director ’s possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector’s possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\nReturn of documents. Upon termination of Director ’s position as a member of the Company’s Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing secret\ninformation, including copies of such materials, then in its possession, whether prepared by it or others, will be returned\nto the Company.\nDirector acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that each of the\nobligations assumed by Director in this, and the other paragraphs contained herein, is a material inducement to disclose\nthe secret information to Director.\nNo License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or\n2\nSection 4.\nSection 5.\nSection 6.\nWitness\n__________________\nName:_____________\nWitness\n__________________\nName:_____________\nright to use any secret information in developing any invention, discovery, know-how, trade secret, patent, trademark, or\ncopyright.\nEnforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nBinding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nApplicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Colorado, with Denver County,\nColorado as the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nDirector\n________________________\nName: __________________\nCompany\nBy:________________________\nName: __________________\nTitle: __________________\n3	EX-10.10 6 Iwlg_ex10z10.htm FORM OF DIRECTOR'S NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.10\nDIRECTOR’S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of [ ], by and between Lightwave Logic, Inc., located at 369\nInverness Parkway, Suite 350, Englewood, CO 80112 (the “Company™); and [ ] (“Director”) whose\naddress is [ .\nWHEREAS, Company is developing next generation proprietary photonic devices that are based on its advanced\nelectro-optical polymer material systems, which involves the development and utilization of information not generally\nknown in the industry or industries in which the Company is or may become engaged.\nWHEREAS, [the Company desires to appoint the Director as]/[the Director is] a member of the Company’s\nBoard of Directors [and the Director accepts such appointment];\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n“secret information” (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSection 1. Secret Information\nFor the purposes of this Agreement, “secret information” shall mean information relating to the Company’s\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nSection 2. Nondisclosure of Secret Information\n2.1  Non-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director’s possession remains\nconfidential.\nThe foregoing restrictions shall not be applicable to any information which:\n(@)  the Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\n(b) is now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\n(c)  is subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\n(d) is, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\n(e)  the Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director’s possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector’s possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\n2.2 Return of documents. Upon termination of Director’s position as a member of the Company’s Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing secret\ninformation, including copies of such materials, then in its possession, whether prepared by it or others, will be returned\nto the Company.\n2.3  Director acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that each of the\nobligations assumed by Director in this, and the other paragraphs contained herein, is a material inducement to disclose\nthe secret information to Director.\nSection 3. No License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or\nright to use any secret information in developing any invention, discovery, know-how, trade secret, patent, trademark, or\ncopyright.\nSection 4. Enforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nSection 5.  Binding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nSection 6.  Applicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Colorado, with Denver County,\nColorado as the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nWitness Director\nName: Name:\nWitness Company\n- By:\nName: Name:\nTitle:	EX-10.10 lwlg_ex10z10.htm FORM OF DIRECTOR'S NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.10\nDIRECTOR'S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of\nby and between Lightwave Logic, Inc., located at 369\nInverness Parkway, Suite 350, Englewood, CO 80112 (the "Company"); and ("Director")\nwhose\naddress is\nWHEREAS, Company is developing next generation proprietary photonic devices that are based on its advanced\nelectro-optical polymer material systems, which involves the development and utilization of information not generally\nknown in the industry or industries in which the Company is or may become engaged.\nWHEREAS, [the Company desires to appoint the Director as]/[the Director is] a member of the Company's\nBoard of Directors [and the Director accepts such appointment];\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n"secret information" (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSection 1.\nSecret Information\nFor the purposes of this Agreement, "'secret information" shall mean information relating to the Company's\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nSection 2.\nNondisclosure of Secret Information\n2.1 Non-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director's possession remains\nconfidential.\n1\nThe foregoing restrictions shall not be applicable to any information which:\n(a)\nthe Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\n(b)\nis now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\n(c)\nis subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\n(d)\nis, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\n(e)\nthe Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director's possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector's possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\n2.2 Return of documents. Upon termination of Director's position as a member of the Company's Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing secret\ninformation, including copies of such materials, then in its possession, whether prepared by it or others, will be returned\nto the Company.\n2.3\nDirector acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that each of the\nobligations assumed by Director in this, and the other paragraphs contained herein, is a material inducement to disclose\nthe secret information to Director.\nSection 3.\nNo License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or\n2\nright to use any secret information in developing any invention, discovery, know-how, trade secret, patent, trademark, or\ncopyright.\nSection 4. Enforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nSection 5.\nBinding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nSection 6.\nApplicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Colorado, with Denver County,\nColorado as the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nWitness\nDirector\nName:\nName:\nWitness\nCompany\nBy:\nName:\nName:\nTitle:\n3	Section 1.\nSection 2.\n2.1\nEX-10 .10 6 lwlg_ex10z10.htm FORM OF DIRECTOR'S NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.10\nDIRECTOR’S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of [_____________], by and between Lightwave Logic, Inc., located at 369\nInverness Parkway, Suite 350, Englewood, CO 80112 (the “Company”); and [___________] (“Director”) whose\naddress is [______________________________] .\nWHEREAS, Company is developing next generation proprietary photonic devices that are based on its advanced\nelectro-optical polymer material systems, which involves the development and utilization of information not generally\nknown in the industry or industries in which the Company is or may become engaged.\nWHEREAS, [the Company desires to appoint the Director as]/[the Director is] a member of the Company’s\nBoard of Directors [and the Director accepts such appointment];\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n“secret information” (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSecret Information\nFor the purposes of this Agreement, “secret information” shall mean information relating to the Company’s\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nNondisclosure of Secret Information\nNon-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director ’s possession remains\nconfidential.\n1\n(a)\n(b)\n(c)\n(d)\n(e)\n2.2\n2.3\nSection 3.\nThe foregoing restrictions shall not be applicable to any information which:\nthe Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\nis now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\nis subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\nis, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\nthe Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director ’s possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector’s possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\nReturn of documents. Upon termination of Director ’s position as a member of the Company’s Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing secret\ninformation, including copies of such materials, then in its possession, whether prepared by it or others, will be returned\nto the Company.\nDirector acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that each of the\nobligations assumed by Director in this, and the other paragraphs contained herein, is a material inducement to disclose\nthe secret information to Director.\nNo License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or\n2\nSection 4.\nSection 5.\nSection 6.\nWitness\n__________________\nName:_____________\nWitness\n__________________\nName:_____________\nright to use any secret information in developing any invention, discovery, know-how, trade secret, patent, trademark, or\ncopyright.\nEnforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nBinding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nApplicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Colorado, with Denver County,\nColorado as the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nDirector\n________________________\nName: __________________\nCompany\nBy:________________________\nName: __________________\nTitle: __________________\n3
c7012e8f9e3b200fe5f1f379ad0bce4b.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 13 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of March 2, 2010 and is effective upon the date of first disclosure or signing, which ever occurs first,\nbetween Endo Pharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its\nsubsidiaries Endo Pharmaceuticals Solutions Inc. and Endo Pharmaceuticals Valera Inc., each of which shall be bound by this Agreement as if each\nhad separately executed this Agreement, (collectively “Endo”), and HealthTronics, Inc., located at 9825 Spectrum Dr. , Bldg. 3, Austin, TX 78717.\nWHEREAS, the parties hereto, wish to explore a mutually beneficial relationship, and in so doing, may disclose to each other certain non-public\nconfidential and proprietary information pertaining to such possible business relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its affiliates, to the other, or one of its affiliates, whether set forth orally or in writing which may relate to,\namong other things, their respective business interests, technical information, clinical data, product specifications, product development plans\nand ideas, marketing plans and ideas, manufacturing information or business operations.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain;\n(b) information that, after disclosure becomes part of the public domain by publication or otherwise, provided that such publication is not\nin violation of this Agreement or, to receiving party’s knowledge, any other confidentiality agreement;\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d) information that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n3. The receiving party shall not use nor disclose to any third party Confidential Information of the disclosing party for any purpose other than for\nthe purposes set forth in this Agreement. The parties hereby agree to hold in strictest confidence any and all Confidential Information disclosed\nby one party to the other under the terms of this Agreement and shall use such information solely for the purpose of evaluating a potential\nbusiness relationship and if a business relationship is consummated, carrying out such business relationship.\n4. The receiving party will not disclose any such Confidential Information to any person other than to its affiliates, employees, agents,\nconsultants, directors and officers that have a need to know such information to effectuate the purpose of this Agreement and that such\naffiliates, employees, agents, consultants and officers shall be informed of this Confidentiality Agreement and shall be bound by a\nconfidentiality agreement containing terms at least as restrictive terms as those contained in this Agreement.\n5. Upon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other documents that\nreflect any of the Confidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of\nConfidential Information in its confidential files solely for archival purposes.\n6. Title to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party. Nothing herein shall be construed as granting any license or option, in favor of the receiving party, in such Confidential\nInformation under any patent, copyright and/or any other rights now or hereafter held by the disclosing party in or as a result of such\nConfidential Information other than as specifically agreed upon by the parties.\n7. Confidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\n8. The execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\n9. The receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\n10. No failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n11. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of the\nCommonwealth of Pennsylvania without reference to its conflict of laws rules. This agreement may not be amended or in any manner modified\nexcept by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to be\nunenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited\nextent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\n12. This Agreement shall be binding on each party’s successors and assigns.\n13. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC.\nHEALTHTRONICS, INC.\nBy: /s/ Doug Macpherson\nBy: /s/ Scott A. Herz\nDoug Macpherson\nName: Scott A. Herz\nVice President and Associate General Counsel\nTitle: VP - Corporate Development	EX-99.(D)(3) 13 dex99d3.htm CONFIDENTIALITY AGREEMENT Exhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of March 2, 2010 and is effective upon the date of first disclosure or signing, which ever occurs first, between Endo Pharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its subsidiaries Endo Pharmaceuticals Solutions Inc. and Endo Pharmaceuticals Valera Inc., each of which shall be bound by this Agreement as if each had separately executed this Agreement, (collectively “Endo”), and HealthTronics, Inc., located at 9825 Spectrum Dr. , Bldg. 3, Austin, TX 78717. WHEREAS, the parties hereto, wish to explore a mutually beneficial relationship, and in so doing, may disclose to each other certain non-public confidential and proprietary information pertaining to such possible business relationship, as set forth below. NOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows: 1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that has been or will be disclosed by one party, or one of its affiliates, to the other, or one of its affiliates, whether set forth orally or in writing which may relate to, among other things, their respective business interests, technical information, clinical data, product specifications, product development plans and ideas, marketing plans and ideas, manufacturing information or business operations. 2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement: (a)\n(b)\n()\n(d)\n(e)\n®\ninformation that, prior to the time of disclosure, is in the public domain;\ninformation that, after disclosure becomes part of the public domain by publication or otherwise, provided that such publication is not\nin violation of this Agreement or, to receiving party’s knowledge, any other confidentiality agreement;\ninformation that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\ninformation that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\ninformation that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\ninformation that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n10. The receiving party shall not use nor disclose to any third party Confidential Information of the disclosing party for any purpose other than for\nthe purposes set forth in this Agreement. The parties hereby agree to hold in strictest confidence any and all Confidential Information disclosed\nby one party to the other under the terms of this Agreement and shall use such information solely for the purpose of evaluating a potential\nbusiness relationship and if a business relationship is consummated, carrying out such business relationship.\nThe receiving party will not disclose any such Confidential Information to any person other than to its affiliates, employees, agents,\nconsultants, directors and officers that have a need to know such information to effectuate the purpose of this Agreement and that such\naffiliates, employees, agents, consultants and officers shall be informed of this Confidentiality Agreement and shall be bound by a\nconfidentiality agreement containing terms at least as restrictive terms as those contained in this Agreement.\nUpon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other documents that\nreflect any of the Confidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of\nConfidential Information in its confidential files solely for archival purposes.\nTitle to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party. Nothing herein shall be construed as granting any license or option, in favor of the receiving party, in such Confidential\nInformation under any patent, copyright and/or any other rights now or hereafter held by the disclosing party in or as a result of such\nConfidential Information other than as specifically agreed upon by the parties.\nConfidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\nThe execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\nThe receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\nNo failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n11. 12. 13. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of the\nCommonwealth of Pennsylvania without reference to its conflict of laws rules. This agreement may not be amended or in any manner modified\nexcept by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to be\nunenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited\nextent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\nThis Agreement shall be binding on each party’s successors and assigns.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. ENDO PHARMACEUTICALS INC. HEALTHTRONICS, INC.\nBy: /s/ Doug Macpherson By: /s/ Scott A. Herz\nDoug Macpherson Name: Scott A. Herz\nVice President and Associate General Counsel Title: VP - Corporate Development	EX-99.(D)(3) 13 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of March 2, 2010 and is effective upon the date of first disclosure or signing, which ever occurs first,\nbetween Endo Pharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its\nsubsidiaries Endo Pharmaceuticals Solutions Inc. and Endo Pharmaceuticals Valera Inc., each of which shall be bound by this Agreement as if each\nhad separately executed this Agreement, (collectively "Endo"), and HealthTronics, Inc., located at 9825 Spectrum Dr. Bldg. 3, Austin, TX 78717.\nWHEREAS, the parties hereto, wish to explore a mutually beneficial relationship, and in so doing, may disclose to each other certain non-public\nconfidential and proprietary information pertaining to such possible business relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1.\nFor purposes of this Agreement, "Confidential Information" shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its affiliates, to the other, or one of its affiliates, whether set forth orally or in writing which may relate to,\namong other things, their respective business interests, technical information, clinical data, product specifications, product development plans\nand ideas, marketing plans and ideas, manufacturing information or business operations.\n2.\nThe parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a)\ninformation that, prior to the time of disclosure, is in the public domain;\n(b)\ninformation that, after disclosure becomes part of the public domain by publication or otherwise, provided that such publication is not\nin violation of this Agreement or, to receiving party's knowledge, any other confidentiality agreement;\n(c)\ninformation that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d)\ninformation that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e)\ninformation that was independently developed by the receiving party without reference to any Confidentia Information as established\nby appropriate documentation; and\n(f)\ninformation that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n3.\nThe receiving party shall not use nor disclose to any third party Confidential Information of the disclosing party for any purpose other than\nfor\nthe purposes set forth in this Agreement. The parties hereby agree to hold in strictest confidence any and all Confidential Information disclosed\nby one party to the other under the terms of this Agreement and shall use such information solely for the purpose of evaluating a potential\nbusiness relationship and if a business relationship is consummated, carrying out such business relationship.\n4.\nThe receiving party will not disclose any such Confidential Information to any person other than to its affiliates, employees, agents,\nconsultants, directors and officers that have a need to know such information to effectuate the purpose of this Agreement and that such\naffiliates, employees, agents, consultants and officers shall be informed of this Confidentiality Agreement and shall be bound by\na\nconfidentiality agreement containing terms at least as restrictive terms as those contained in this Agreement.\n5.\nUpon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party's\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other documents that\nreflect any of the Confidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy\nof\nConfidential Information in its confidential files solely for archival purposes.\n6.\nTitle to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party. Nothing herein shall be construed as granting any license or option, in favor of the receiving party, in such Confidential\nInformation under any patent, copyright and/or any other rights now or hereafter held by the disclosing party in or as a result of such\nConfidential Information other than as specifically agreed upon by the parties.\n7.\nConfidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\n8.\nThe execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\n9.\nThe receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\n10.\nNo failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n11. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of the\nCommonwealth of Pennsylvania without reference to its conflict of laws rules. This agreement may not be amended or in any manner modified\nexcept by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to be\nunenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited\nextent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\n12. This Agreement shall be binding on each party's successors and assigns.\n13. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in "portable document format" (".pdf"), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC.\nHEALTHTRONICS, INC.\nBy: /s/ Doug Macpherson\nBy: /s/ Scott A. Herz\nDoug Macpherson\nName: Scott A. Herz\nVice President and Associate General Counsel\nTitle: VP - Corporate Development	EX-99.(D)(3) 13 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of March 2, 2010 and is effective upon the date of first disclosure or signing, which ever occurs first,\nbetween Endo Pharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its\nsubsidiaries Endo Pharmaceuticals Solutions Inc. and Endo Pharmaceuticals Valera Inc., each of which shall be bound by this Agreement as if each\nhad separately executed this Agreement, (collectively “Endo”), and HealthTronics, Inc., located at 9825 Spectrum Dr. , Bldg. 3, Austin, TX 78717.\nWHEREAS, the parties hereto, wish to explore a mutually beneficial relationship, and in so doing, may disclose to each other certain non-public\nconfidential and proprietary information pertaining to such possible business relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its affiliates, to the other, or one of its affiliates, whether set forth orally or in writing which may relate to,\namong other things, their respective business interests, technical information, clinical data, product specifications, product development plans\nand ideas, marketing plans and ideas, manufacturing information or business operations.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain;\n(b) information that, after disclosure becomes part of the public domain by publication or otherwise, provided that such publication is not\nin violation of this Agreement or, to receiving party’s knowledge, any other confidentiality agreement;\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d) information that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n3. The receiving party shall not use nor disclose to any third party Confidential Information of the disclosing party for any purpose other than for\nthe purposes set forth in this Agreement. The parties hereby agree to hold in strictest confidence any and all Confidential Information disclosed\nby one party to the other under the terms of this Agreement and shall use such information solely for the purpose of evaluating a potential\nbusiness relationship and if a business relationship is consummated, carrying out such business relationship.\n4. The receiving party will not disclose any such Confidential Information to any person other than to its affiliates, employees, agents,\nconsultants, directors and officers that have a need to know such information to effectuate the purpose of this Agreement and that such\naffiliates, employees, agents, consultants and officers shall be informed of this Confidentiality Agreement and shall be bound by a\nconfidentiality agreement containing terms at least as restrictive terms as those contained in this Agreement.\n5. Upon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other documents that\nreflect any of the Confidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of\nConfidential Information in its confidential files solely for archival purposes.\n6. Title to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party. Nothing herein shall be construed as granting any license or option, in favor of the receiving party, in such Confidential\nInformation under any patent, copyright and/or any other rights now or hereafter held by the disclosing party in or as a result of such\nConfidential Information other than as specifically agreed upon by the parties.\n7. Confidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\n8. The execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\n9. The receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\n10. No failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n11. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of the\nCommonwealth of Pennsylvania without reference to its conflict of laws rules. This agreement may not be amended or in any manner modified\nexcept by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to be\nunenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited\nextent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\n12. This Agreement shall be binding on each party’s successors and assigns.\n13. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC.\nHEALTHTRONICS, INC.\nBy: /s/ Doug Macpherson\nBy: /s/ Scott A. Herz\nDoug Macpherson\nName: Scott A. Herz\nVice President and Associate General Counsel\nTitle: VP - Corporate Development
c8320bae68768cef9ac921bf62997f05.pdf	effective_date jurisdiction party term	EX-99.D.2 8 d53527dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nMay 18, 2015\nCarlyle Investment Management L.L.C .\n520 Madison Avenue\nNew York, NY 10022\nAttention: Andrew Crawford\nDear Sirs:\nCarlyle Investment Management L.L.C . (“Carlyle” or “you” or “your”) has requested certain non-public information regarding Blyth, Inc. (the\n“Company” or “us” or “we”) to explore the possibility of a transaction between you or one or more of your Affiliates and/or designees and the\nCompany (the “Transaction”). As a condition to furnishing such information to you, the Company is requiring you to agree to the following\nprovisions set forth in this Confidentiality Agreement (this “Agreement”).\n1. Certain Definitions. As used in this Agreement:\n(a) “Affiliate” means, with respect to any specified Person, any other Person that directly or indirectly controls, is controlled\nby or is under common control with such specified Person (provided that your Affiliates shall exclude your portfolio companies). The term\n“control,” when used with respect to any specified Person, means the possession, directly or indirectly, of the power to direct or cause the\ndirection of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the\nterms “controlling” and “controlled” have correlative meanings.\n(b) “Evaluation Material” means any information or data concerning the Company or any of its subsidiaries, whether in oral or\nwritten form, that is disclosed to you or any of your Representatives by the Company or any of its Representatives in connection with the\nTransaction, together with all notes, memoranda, summaries, analyses, compilations, forecasts, studies, data and other documents and materials\n(in whatever form maintained) relating thereto that are prepared by you or any of your Representatives to the extent that they use or contain any\nsuch information. Notwithstanding the foregoing, “Evaluation Material” does not include information or data that (i) is or was independently\ndeveloped by you or your Representatives without reference to the Evaluation Materials; (ii) is or becomes available to the public, other than as a\nresult of disclosure by you or your Representatives in breach of this Agreement; (iii) is already in your or your Representatives’ possession or\nbecomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, so long as that source\nis not known by you to be bound by a confidentiality agreement with or other obligation prohibiting such disclosure; or (iv) was within your or\nyour Representatives’ possession prior to it being furnished to you or your Representatives by the Company pursuant hereto.\n(c) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership,\nlimited partnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) “Representatives” means, with respect to any Person, such Person’s Affiliates and the respective partners, managing\nmembers, directors, officers, owners, shareholders, co-investors, employees, managers, agents and advisors (including attorneys, accountants,\ninvestment bankers, financial advisors and consultants) of such Person and such Person’s Affiliates, together with any actual or potential sources\nof financing for such Person or its Affiliates.\n2. Confidentiality and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. Except as required by law or regulation or as otherwise provided for\nherein, you agree that all Evaluation Material shall be kept confidential and disclosed by you only to those of your Representatives to whom\ndisclosure is needed in order to facilitate your evaluation of the Transaction and who will abide to maintain the confidentiality of the Evaluation\nMaterial. You shall be liable for any breaches of this Agreement to the extent applicable to Representatives by any of your Representatives unless\nsuch Representatives have entered into a confidentiality agreement with the Company.\n(b) Compulsory Disclosure of Evaluation Material. In the event that you or any of your Representatives is requested or\nrequired by a governmental or regulatory body (including stock exchanges or self-regulatory organizations) (by interrogatories, requests for\ninformation, subpoena or other documents or requests) to disclose any Evaluation Material, you shall provide the Company with prompt written\nnotice (to the extent reasonably practicable and permitted by law, regulation or professional standard) of such request or requirement so that the\nCompany may seek (at the Company’s sole expense) an appropriate protective order and/or, in its sole discretion, waive compliance by you or\nyour Representatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, you or any of your\nRepresentatives are nonetheless legally compelled or requested to disclose any Evaluation Material, then you or such Representative may\ndisclose only such portion of the Evaluation Material as is legally required or requested to be disclosed without liability under this Agreement so\nlong as you use commercially reasonable efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment and to preserve the confidentiality of the remainder of the Evaluation Material. We will assume all reasonable costs associated with any\nsuch disclosure of Evaluation Materials that you are legally required or requested to make. Notwithstanding anything herein to the contrary,\nEvaluation Material may be disclosed by you and your Representatives when pursuant to an ordinary course examination by a regulator, bank\nexaminer or self-regulatory organization not specifically directed at the Company, the Transaction or the Evaluation Material.\n(c) Other Disclosure. Except for disclosures pursuant to Section 2(a) or Section 2(b) or as otherwise provided herein, neither\nparty shall: (a) make any disclosure to any other Person of (i) the fact that discussions are taking place concerning a potential Transaction, (ii) the\nexistence or contents of this Agreement, (iii) the fact that you or your Representatives have requested or received Evaluation Material or (iv) any\nof the terms or conditions relating to the Transaction, including the status thereof; or (b) make any public statement concerning the Transaction\n(any disclosure or statement described in clauses (a) or (b) being a “Public Statement”). If either party determines that it is required to make any\nPublic\n2\nStatement for it not to be in violation of any applicable law, regulation, professional standard, order or listing agreement, then, in addition to\ncomplying with Section 2(b), such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure\nas is reasonably practicable and (y) consider in good faith the other party’s suggestions concerning the nature and scope of the information to be\ncontained therein.\n3. Securities Law Restrictions. You acknowledge that the Evaluation Material, if disclosed, may contain material non-public\ninformation concerning the Company, and you are aware of the restrictions imposed by U.S. federal and stale securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information. Nothing herein shall constitute an admission\nby either party that any Evaluation Material or other such information in fact contains material non-public information concerning the Company.\n4. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is or has\nbeen, made by us or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be\nentitled to rely only on those representations and warranties that are expressly set forth in a definitive written agreement to consummate the\nTransaction that is executed and delivered by both you, us or our respective Affiliates (a “Definitive Transaction Agreement”).\n5. Return, Destruction or Erasure of Evaluation Material. At any time upon the Company’s written request, except as may be required\nto be maintained by law, regulation (including regulatory compliance policy) or professional standard, you shall either, at your option, return or\ndestroy or erase (to the extent commercially reasonable or technically practicable), all Evaluation Material (including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon) in the possession or control of you or any of your Representatives (and, in the case of\ndestruction or erasure, promptly provide to us a certificate and signed by a duly authorized representative confirming such destruction or\nerasure). Notwithstanding the foregoing, the Company understands and agrees that (a) you and your Representatives may maintain back-up,\narchival electronic storage of the Evaluation Material in order to comply with law or regulation or internal document retention and business\ncontinuity policies and procedures and (b) you and your Representatives will also be permitted to retain copies of such Evaluation Materials as\nmay be necessary to document your consideration of the proposed Transaction for the purpose of establishing compliance with any applicable\nlaws, regulations or professional standards and for defending or maintaining any litigation (including any administrative proceeding) relating to\nthis agreement or the Evaluation Materials, provided that all such information shall continue to be kept confidential pursuant to the terms of this\nAgreement. Notwithstanding any such return, destruction or erasure of the Evaluation Material, you and your Representatives shall continue to\nbe bound by the obligations of confidentiality hereunder.\n6. Communications Regarding the Transaction; Due Diligence. Unless otherwise directed by the Company in writing, you agree that\nall communications concerning the Transaction and your due diligence investigation (including requests for additional Evaluation Material,\nmeetings with management and site visits) shall be directed solely to the representatives of the Company designated by the Company (each, a\n“Company\n3\nRepresentative”). You and your Representatives shall not contact or communicate with any of the directors, officers, employees or customers of\nthe Company about the Transaction, unless approved in advance and in writing by the Company Representative or unless introduced to you or\nyour Representatives by a Company Representative. Notwithstanding anything in the foregoing to the contrary, nothing herein shall prohibit us\nfrom engaging in any communications with the Company or any of its Representatives not concerning a Transaction in the ordinary course of\nbusiness or consistent with past practices.\n7. Standstill. Unless a Release Event (as defined below) with respect to the Company shall have occurred, you (or anyone authorized\nto act on your behalf) shall not, for a period of six months after the date of this Agreement, directly or indirectly, do the following unless\nrequested by the Company or in connection with the Transaction:\n(a) make any statement or proposal to the board of directors of the Company or any of its stockholders with respect to, or\nmake any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A\nof the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business combination,\nconsolidation, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring,\nrecapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any acquisition of more than 4.99% of\nany voting securities or rights or options to acquire interests in any such voting securities of the Company or any of its subsidiaries, (iv) any\nproposal to seek representation on the board of directors of the Company or any of its subsidiaries or otherwise (whether alone or in concert with\nothers) seek to control or influence the management, board of directors or policies of the Company or any of its subsidiaries, (v) any request or\nproposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal or other statement that is inconsistent with the terms\nof this Agreement, including this Section 7(a); provided, that this clause (a) shall not apply to any request to waive your obligations under this\nSection 7 so long as such request is not made in a manner which would reasonably be expected to require the Company to make a public\nannouncement regarding such request;\n(b) encourage or assist any other Person (including forming, joining or in any way participating in a “group” (as defined in\nSection 13(d)(3) of the Securities Exchange Act of 1934) with any such other Person) to do, or enter into any discussions or agreements with any\nother Person with respect to, any of the actions set forth in clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding\nany of the actions set forth in clause (a) above; or\n(d) offer to acquire, acquire, own or sell (or propose, agree or seek permission, to acquire, own or sell), of record or\nbeneficially, by purchase, sale or otherwise, any voting securities or indebtedness of the Company, or rights or options to acquire interests in any\nvoting securities or indebtedness of the Company (except that you may purchase for investment in market transactions beneficial ownership of\nup to 5% in aggregate of the outstanding voting securities or indebtedness of the Company or any of its subsidiaries, or rights or options to\nacquire interests in any voting securities or indebtedness of the Company or any of its subsidiaries);\n4\nin each case unless and until you have received the prior written approval of our board of directors to do any of the foregoing. The foregoing\nshall not apply to your Representatives effecting or recommending transactions in securities in the ordinary course of their business as an\ninvestment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nAs used herein, the term “Release Event” means any of the following: (i) we enter into a definitive agreement with respect to, or publicly\nannounce that we plan to enter into, a transaction with an Person or “group” of Persons involving the direct or indirect acquisition by such Person\nor group of all or a controlling portion of our equity securities or all or substantially all of our assets (whether by merger, consolidation, business\ncombination, tender or exchange offer or otherwise) or (ii) a Person (other than you in violation of this Agreement) has commenced a tender\noffer or an exchange offer for a majority of the total outstanding number of the Company’s voting securities, which the Company and its board of\ndirectors does not reject within ten business days following commencement of such tender offer or exchange offer or within ten business days\nafter any material increase in the consideration being offered thereunder.\n8. No Joint Bidding. You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in\nconnection with the Transaction, and you are considering the Transaction solely and exclusively for your and your Affiliates’ own account. You\nrepresent that other than as disclosed to the Company in writing prior to the execution of this Agreement, you have not entered into, directly or\nindirectly, any agreement with any Person (other than any of your Representatives in such capacity) with respect to a possible transaction\ninvolving the Company or that could otherwise affect such Person’s decisions or actions with respect to a possible transaction involving the\nCompany.\n9. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this\nAgreement and that each party shall be entitled to seek specific performance and injunctive or other equitable relief without the posting or\nsecuring of a bond or other security as a remedy for any such breach or threatened breach, in addition to all other remedies available at law or in\nequity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this\nAgreement is or would be compensable by an award of money damages and each party further agrees to waive (and to use commercially\nreasonable efforts to cause all of their Representatives to waive) any requirement for the securing or posting of any bond or other security in\nconnection with any such remedy. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\n10. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the\nCompany is not waiving or diminishing, and shall not be deemed to have waived or diminished, its attorney work-product\n5\nprotections, attorney-client privileges or similar protections and privileges as a result of disclosing any Evaluation Material (including any\nEvaluation Material related to pending or threatened litigation) to you or any of your Representatives.\n11. Liability for Representatives. Notwithstanding anything to the contrary provided herein, none of the provisions of this Agreement\nshall in any way limit the activities of your Affiliates, provided that (i) such Affiliates have not been given access to the Evaluation Materials by\nyou or your Representatives and (ii) such Affiliates are not acting on your behalf or upon your instruction or encouragement in contravention of\nany term or provision of this Agreement. In addition, the Company acknowledges that you and your Representatives may be involved, invested\nor interested in, now or in the future, directly or indirectly, various other business and activities, including businesses that may be similar to or\ncompetitive with the Company. Nothing in this Agreement shall limit the rights of such parties to (i) make such investments or pursue any\nopportunities or grant the Company any right to participate therein or (ii) from investing in, operating or participating in the management of its\nown business(es) or entity(ies) which compete or may compete, directly or indirectly, with the Company.\n12. Term. Except for Sections 9 (Remedies), 13(h) (Governing Law; Forum) and 13(i) (WAIVER OF JURY TRIAL), which shall be\nbinding in perpetuity or until the latest date permitted by applicable law, and except for provisions that expressly state that they terminate on an\nearlier date, this Agreement shall expire at the earlier of (i) two years from the date of this Agreement and (ii) the consummation of the\nTransaction.\n13. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters\nset forth herein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements\nimposed by any offering memorandum, web-based database or similar repository of Evaluation Material to which you or your Representatives is\ngranted access in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an\noffering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that your confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be amended except by an agreement executed by the parties hereto in writing.\n(c) Ownership of Evaluation Material: No License. All of the Evaluation Material is and shall remain the property of the\nCompany. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other property right\nor interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible property or\nproprietary information disclosed, embodied fixed, comprised or contained in any Evaluation Material.\n6\n(d) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any\nparty without the prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and\nunenforceable. Any purchaser of the Company or all or substantially all of the Company’s assets shall be entitled to the benefits of this\nAgreement whether or not this Agreement is assigned to such Person.\n(e) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly\nsigned and delivered by or on behalf of both parties. Each party agrees that no failure or delay by the other party in exercising any right, power or\nprivilege hereunder will operate as a waiver, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder. No waiver by any party shall operate or be construed as a waiver in respect of any failure,\nbreach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or\nafter that waiver.\n(f) Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall not impair or affect the\nvalidity, legality or enforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances\nwould be inequitable as determined by a court of competent jurisdiction.\n(g) No Obligation to Complete a Transaction. Each party understands that the other party has not, as of the date hereof,\nauthorized or made any decision to pursue any Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose\nany obligation on either party: (i) to consummate a Transaction; (ii) to conduct or continue discussions or negotiations concerning a Transaction;\n(iii) to enter into a joint venture or other business relationship of any kind; or (iv) to enter into or negotiate a Definitive Transaction Agreement.\nExcept for matters specifically agreed to in this Agreement, neither party shall have any rights or obligations of any kind whatsoever with respect\nto a Transaction by virtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and\nuntil a Definitive Transaction Agreement is executed and delivered. You acknowledge that the Company reserves the right, in its sole discretion\nand without giving any reason therefor, to: (A) provide or not to provide Evaluation Material to, and to request the return, destruction or erasure\nof Evaluation Material by, you or any of your Representatives; (B) adopt additional specific procedures to protect the confidentiality of the\nTransaction or certain sensitive Evaluation Material; (C) reject any proposals made by you or any of your Representatives; (D) terminate\ndiscussions or negotiations with you or any of your Representatives; and (E) engage in discussions or negotiations, and to enter into any\nagreement, with any other Person, in each case, in the Company’s sole discretion, without notice to you or any of your Representatives, at any\ntime and for any reason or no reason. You shall not have any claim or cause of action against the Company or any of its Representatives in\nrespect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement or as otherwise provided in this Agreement.\n(h) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based\nupon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed\n7\nby, and construed in accordance with, the laws of the State of New York without regard to the principles of conflicts of laws in any jurisdiction.\nEach party consents and submits to the exclusive jurisdiction of the courts of the State of New York and the courts of the United States located in\nNew York for the adjudication of any action or legal proceeding relating to or arising out of this Agreement and the transactions contemplated\nhereby (and each party agrees not to commence any action or legal proceeding relating thereto except in any such court). Each party hereby\nirrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue in such courts and agrees not to\nplead or claim in any such court that any such action or legal proceeding brought in any such court has been brought in an inconvenient forum.\nEach party hereby agrees that service of any process, summons, notice or document by overnight courier addressed to such party shall be\neffective service of process for any such suit, action or proceeding brought against such party in any such court. Each party hereto agrees that a\nfinal judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be\nenforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\n(i) WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL\nBY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(j) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same\neffect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this\nAgreement. This Agreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by\nthe other party hereto.\n[Signature page follows]\n8\nVery truly yours,\nBLYTH, INC.\nBy: /s/ Robert Goergen, JR\nName: ROBERT GOERGEN, JR\nTitle: CEO\nAccepted and agreed to\nAs of the date first written above:\nCARLYLE INVESTMENT MANAGEMENT L.L .C.\nBy: /s/ David Stonehill\nName: David Stonehill\nTitle: Managing Director\nSignature Page to Blyth, Inc. Confidentiality Agreement	EX-99.D.2 8 d53527dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nMay 18, 2015\nCarlyle Investment Management L.L.C.\n520 Madison Avenue\nNew York, NY 10022\nAttention: Andrew Crawford\nDear Sirs:\nCarlyle Investment Management L.L.C. (“Carlyle” or “you” or “your”) has requested certain non-public information regarding Blyth, Inc. (the\n“Company” or “us” or “we”) to explore the possibility of a transaction between you or one or more of your Affiliates and/or designees and the\nCompany (the “Transaction”). As a condition to furnishing such information to you, the Company is requiring you to agree to the following\nprovisions set forth in this Confidentiality Agreement (this “Agreement”).\n1. Certain Definitions. As used in this Agreement:\n(a) “Affiliate” means, with respect to any specified Person, any other Person that directly or indirectly controls, is controlled\nby or is under common control with such specified Person (provided that your Affiliates shall exclude your portfolio companies). The term\n“control,” when used with respect to any specified Person, means the possession, directly or indirectly, of the power to direct or cause the\ndirection of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the\nterms “controlling” and “controlled” have correlative meanings.\n(b) “Evaluation Material” means any information or data concerning the Company or any of its subsidiaries, whether in oral or\nwritten form, that is disclosed to you or any of your Representatives by the Company or any of its Representatives in connection with the\nTransaction, together with all notes, memoranda, summaries, analyses, compilations, forecasts, studies, data and other documents and materials\n(in whatever form maintained) relating thereto that are prepared by you or any of your Representatives to the extent that they use or contain any\nsuch information. Notwithstanding the foregoing, “Evaluation Material” does not include information or data that (i) is or was independently\ndeveloped by you or your Representatives without reference to the Evaluation Materials; (ii) is or becomes available to the public, other than as a\nresult of disclosure by you or your Representatives in breach of this Agreement; (iii) is already in your or your Representatives’ possession or\nbecomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, so long as that source\nis not known by you to be bound by a confidentiality agreement with or other obligation prohibiting such disclosure; or (iv) was within your or\nyour Representatives’ possession prior to it being furnished to you or your Representatives by the Company pursuant hereto.\n(c) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership,\nlimited partnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) “Representatives” means, with respect to any Person, such Person’s Affiliates and the respective partners, managing\nmembers, directors, officers, owners, shareholders, co-investors, employees, managers, agents and advisors (including attorneys, accountants,\ninvestment bankers, financial advisors and consultants) of such Person and such Person’s Affiliates, together with any actual or potential sources\nof financing for such Person or its Affiliates.\n2. Confidentiality and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. Except as required by law or regulation or as otherwise provided for\nherein, you agree that all Evaluation Material shall be kept confidential and disclosed by you only to those of your Representatives to whom\ndisclosure is needed in order to facilitate your evaluation of the Transaction and who will abide to maintain the confidentiality of the Evaluation\nMaterial. You shall be liable for any breaches of this Agreement to the extent applicable to Representatives by any of your Representatives unless\nsuch Representatives have entered into a confidentiality agreement with the Company.\n(b) Compulsory Disclosure of Evaluation Material. In the event that you or any of your Representatives is requested or\nrequired by a governmental or regulatory body (including stock exchanges or self-regulatory organizations) (by interrogatories, requests for\ninformation, subpoena or other documents or requests) to disclose any Evaluation Material, you shall provide the Company with prompt written\nnotice (to the extent reasonably practicable and permitted by law, regulation or professional standard) of such request or requirement so that the\nCompany may seek (at the Company’s sole expense) an appropriate protective order and/or, in its sole discretion, waive compliance by you or\nyour Representatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, you or any of your\nRepresentatives are nonetheless legally compelled or requested to disclose any Evaluation Material, then you or such Representative may\ndisclose only such portion of the Evaluation Material as is legally required or requested to be disclosed without liability under this Agreement so\nlong as you use commercially reasonable efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment and to preserve the confidentiality of the remainder of the Evaluation Material. We will assume all reasonable costs associated with any\nsuch disclosure of Evaluation Materials that you are legally required or requested to make. Notwithstanding anything herein to the contrary,\nEvaluation Material may be disclosed by you and your Representatives when pursuant to an ordinary course examination by a regulator, bank\nexaminer or self-regulatory organization not specifically directed at the Company, the Transaction or the Evaluation Material.\n(c) Other Disclosure. Except for disclosures pursuant to Section 2(a) or Section 2(b) or as otherwise provided herein, neither\nparty shall: (a) make any disclosure to any other Person of (i) the fact that discussions are taking place concerning a potential Transaction, (ii) the\nexistence or contents of this Agreement, (iii) the fact that you or your Representatives have requested or received Evaluation Material or (iv) any\nof the terms or conditions relating to the Transaction, including the status thereof; or (b) make any public statement concerning the Transaction\n(any disclosure or statement described in clauses (a) or (b) being a “Public Statement”). If either party determines that it is required to make any\nPublic\nStatement for it not to be in violation of any applicable law, regulation, professional standard, order or listing agreement, then, in addition to\ncomplying with Section 2(b), such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure\nas is reasonably practicable and (y) consider in good faith the other party’s suggestions concerning the nature and scope of the information to be\ncontained therein.\n3. Securities Law Restrictions. You acknowledge that the Evaluation Material, if disclosed, may contain material non-public\ninformation concerning the Company, and you are aware of the restrictions imposed by U.S. federal and stale securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information. Nothing herein shall constitute an admission\nby either party that any Evaluation Material or other such information in fact contains material non-public information concerning the Company.\n4. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is or has\nbeen, made by us or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be\nentitled to rely only on those representations and warranties that are expressly set forth in a definitive written agreement to consummate the\nTransaction that is executed and delivered by both you, us or our respective Affiliates (a “Definitive Transaction Agreement”).\n5. Return, Destruction or Erasure of Evaluation Material. At any time upon the Company’s written request, except as may be required\nto be maintained by law, regulation (including regulatory compliance policy) or professional standard, you shall either, at your option, return or\ndestroy or erase (to the extent commercially reasonable or technically practicable), all Evaluation Material (including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon) in the possession or control of you or any of your Representatives (and, in the case of\ndestruction or erasure, promptly provide to us a certificate and signed by a duly authorized representative confirming such destruction or\nerasure). Notwithstanding the foregoing, the Company understands and agrees that (a) you and your Representatives may maintain back-up,\narchival electronic storage of the Evaluation Material in order to comply with law or regulation or internal document retention and business\ncontinuity policies and procedures and (b) you and your Representatives will also be permitted to retain copies of such Evaluation Materials as\nmay be necessary to document your consideration of the proposed Transaction for the purpose of establishing compliance with any applicable\nlaws, regulations or professional standards and for defending or maintaining any litigation (including any administrative proceeding) relating to\nthis agreement or the Evaluation Materials, provided that all such information shall continue to be kept confidential pursuant to the terms of this\nAgreement. Notwithstanding any such return, destruction or erasure of the Evaluation Material, you and your Representatives shall continue to\nbe bound by the obligations of confidentiality hereunder.\n6. Communications Regarding the Transaction; Due Diligence. Unless otherwise directed by the Company in writing, you agree that\nall communications concerning the Transaction and your due diligence investigation (including requests for additional Evaluation Material,\nmeetings with management and site visits) shall be directed solely to the representatives of the Company designated by the Company (each, a\n“Company,\nRepresentative”). You and your Representatives shall not contact or communicate with any of the directors, officers, employees or customers of\nthe Company about the Transaction, unless approved in advance and in writing by the Company Representative or unless introduced to you or\nyour Representatives by a Company Representative. Notwithstanding anything in the foregoing to the contrary, nothing herein shall prohibit us\nfrom engaging in any communications with the Company or any of its Representatives not concerning a Transaction in the ordinary course of\nbusiness or consistent with past practices.\n7. Standstill. Unless a Release Event (as defined below) with respect to the Company shall have occurred, you (or anyone authorized\nto act on your behalf) shall not, for a period of six months after the date of this Agreement, directly or indirectly, do the following unless\nrequested by the Company or in connection with the Transaction:\n(a) make any statement or proposal to the board of directors of the Company or any of its stockholders with respect to, or\nmake any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A\nof the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business combination,\nconsolidation, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring,\nrecapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any acquisition of more than 4.99% of\nany voting securities or rights or options to acquire interests in any such voting securities of the Company or any of its subsidiaries, (iv) any\nproposal to seek representation on the board of directors of the Company or any of its subsidiaries or otherwise (whether alone or in concert with\nothers) seek to control or influence the management, board of directors or policies of the Company or any of its subsidiaries, (v) any request or\nproposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal or other statement that is inconsistent with the terms\nof this Agreement, including this Section 7(a); provided, that this clause (a) shall not apply to any request to waive your obligations under this\nSection 7 so long as such request is not made in a manner which would reasonably be expected to require the Company to make a public\nannouncement regarding such request;\n(b) encourage or assist any other Person (including forming, joining or in any way participating in a “group” (as defined in\nSection 13(d)(3) of the Securities Exchange Act of 1934) with any such other Person) to do, or enter into any discussions or agreements with any\nother Person with respect to, any of the actions set forth in clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding\nany of the actions set forth in clause (a) above; or\n(d) offer to acquire, acquire, own or sell (or propose, agree or seek permission, to acquire, own or sell), of record or\nbeneficially, by purchase, sale or otherwise, any voting securities or indebtedness of the Company, or rights or options to acquire interests in any\nvoting securities or indebtedness of the Company (except that you may purchase for investment in market transactions beneficial ownership of\nup to 5% in aggregate of the outstanding voting securities or indebtedness of the Company or any of its subsidiaries, or rights or options to\nacquire interests in any voting securities or indebtedness of the Company or any of its subsidiaries);\n4\nin each case unless and until you have received the prior written approval of our board of directors to do any of the foregoing. The foregoing\nshall not apply to your Representatives effecting or recommending transactions in securities in the ordinary course of their business as an\ninvestment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nAs used herein, the term “Release Event” means any of the following: (i) we enter into a definitive agreement with respect to, or publicly\nannounce that we plan to enter into, a transaction with an Person or “group” of Persons involving the direct or indirect acquisition by such Person\nor group of all or a controlling portion of our equity securities or all or substantially all of our assets (whether by merger, consolidation, business\ncombination, tender or exchange offer or otherwise) or (ii) a Person (other than you in violation of this Agreement) has commenced a tender\noffer or an exchange offer for a majority of the total outstanding number of the Company’s voting securities, which the Company and its board of\ndirectors does not reject within ten business days following commencement of such tender offer or exchange offer or within ten business days\nafter any material increase in the consideration being offered thereunder.\n8. No Joint Bidding. You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in\nconnection with the Transaction, and you are considering the Transaction solely and exclusively for your and your Affiliates’ own account. You\nrepresent that other than as disclosed to the Company in writing prior to the execution of this Agreement, you have not entered into, directly or\nindirectly, any agreement with any Person (other than any of your Representatives in such capacity) with respect to a possible transaction\ninvolving the Company or that could otherwise affect such Person’s decisions or actions with respect to a possible transaction involving the\nCompany.\n9. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this\nAgreement and that each party shall be entitled to seek specific performance and injunctive or other equitable relief without the posting or\nsecuring of a bond or other security as a remedy for any such breach or threatened breach, in addition to all other remedies available at law or in\nequity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this\nAgreement is or would be compensable by an award of money damages and each party further agrees to waive (and to use commercially\nreasonable efforts to cause all of their Representatives to waive) any requirement for the securing or posting of any bond or other security in\nconnection with any such remedy. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\n10. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the\nCompany is not waiving or diminishing, and shall not be deemed to have waived or diminished, its attorney work-product\n5\nprotections, attorney-client privileges or similar protections and privileges as a result of disclosing any Evaluation Material (including any\nEvaluation Material related to pending or threatened litigation) to you or any of your Representatives.\n11. Liability for Representatives. Notwithstanding anything to the contrary provided herein, none of the provisions of this Agreement\nshall in any way limit the activities of your Affiliates, provided that (i) such Affiliates have not been given access to the Evaluation Materials by\nyou or your Representatives and (ii) such Affiliates are not acting on your behalf or upon your instruction or encouragement in contravention of\nany term or provision of this Agreement. In addition, the Company acknowledges that you and your Representatives may be involved, invested\nor interested in, now or in the future, directly or indirectly, various other business and activities, including businesses that may be similar to or\ncompetitive with the Company. Nothing in this Agreement shall limit the rights of such parties to (i) make such investments or pursue any\nopportunities or grant the Company any right to participate therein or (ii) from investing in, operating or participating in the management of its\nown business(es) or entity(ies) which compete or may compete, directly or indirectly, with the Company.\n12. Term. Except for Sections 9 (Remedies), 13(h) (Governing Law; Forum) and 13(i) (WAIVER OF JURY TRIAL), which shall be\nbinding in perpetuity or until the latest date permitted by applicable law, and except for provisions that expressly state that they terminate on an\nearlier date, this Agreement shall expire at the earlier of (i) two years from the date of this Agreement and (ii) the consummation of the\nTransaction.\n13. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters\nset forth herein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements\nimposed by any offering memorandum, web-based database or similar repository of Evaluation Material to which you or your Representatives is\ngranted access in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an\noffering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that your confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be amended except by an agreement executed by the parties hereto in writing.\n(c) Ownership of Evaluation Material: No License. All of the Evaluation Material is and shall remain the property of the\nCompany. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other property right\nor interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible property or\nproprietary information disclosed, embodied fixed, comprised or contained in any Evaluation Material.\n6\n(d) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any\nparty without the prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and\nunenforceable. Any purchaser of the Company or all or substantially all of the Company’s assets shall be entitled to the benefits of this\nAgreement whether or not this Agreement is assigned to such Person.\n(e) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly\nsigned and delivered by or on behalf of both parties. Each party agrees that no failure or delay by the other party in exercising any right, power or\nprivilege hereunder will operate as a waiver, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder. No waiver by any party shall operate or be construed as a waiver in respect of any failure,\nbreach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or\nafter that waiver.\n(f) Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall not impair or affect the\nvalidity, legality or enforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances\nwould be inequitable as determined by a court of competent jurisdiction.\n(g) No Obligation to Complete a Transaction. Each party understands that the other party has not, as of the date hereof,\nauthorized or made any decision to pursue any Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose\nany obligation on either party: (i) to consummate a Transaction; (ii) to conduct or continue discussions or negotiations concerning a Transaction;\n(iii) to enter into a joint venture or other business relationship of any kind; or (iv) to enter into or negotiate a Definitive Transaction Agreement.\nExcept for matters specifically agreed to in this Agreement, neither party shall have any rights or obligations of any kind whatsoever with respect\nto a Transaction by virtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and\nuntil a Definitive Transaction Agreement is executed and delivered. You acknowledge that the Company reserves the right, in its sole discretion\nand without giving any reason therefor, to: (A) provide or not to provide Evaluation Material to, and to request the return, destruction or erasure\nof Evaluation Material by, you or any of your Representatives; (B) adopt additional specific procedures to protect the confidentiality of the\nTransaction or certain sensitive Evaluation Material; (C) reject any proposals made by you or any of your Representatives; (D) terminate\ndiscussions or negotiations with you or any of your Representatives; and (E) engage in discussions or negotiations, and to enter into any\nagreement, with any other Person, in each case, in the Company’s sole discretion, without notice to you or any of your Representatives, at any\ntime and for any reason or no reason. You shall not have any claim or cause of action against the Company or any of its Representatives in\nrespect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement or as otherwise provided in this Agreement.\n(h) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based\nupon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed\n7\nby, and construed in accordance with, the laws of the State of New York without regard to the principles of conflicts of laws in any jurisdiction.\nEach party consents and submits to the exclusive jurisdiction of the courts of the State of New York and the courts of the United States located in\nNew York for the adjudication of any action or legal proceeding relating to or arising out of this Agreement and the transactions contemplated\nhereby (and each party agrees not to commence any action or legal proceeding relating thereto except in any such court). Each party hereby\nirrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue in such courts and agrees not to\nplead or claim in any such court that any such action or legal proceeding brought in any such court has been brought in an inconvenient forum.\nEach party hereby agrees that service of any process, summons, notice or document by overnight courier addressed to such party shall be\neffective service of process for any such suit, action or proceeding brought against such party in any such court. Each party hereto agrees that a\nfinal judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be\nenforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\n(i) WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL\nBY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(j) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same\neffect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this\nAgreement. This Agreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by\nthe other party hereto.\n[Signature page follows]\n8\nVery truly yours,\nBLYTH, INC.\nBy: /s/ Robert Goergen, JR\nName: ROBERT GOERGEN, JR\nTitle: CEO\nAccepted and agreed to\nAs of the date first written above:\nCARLYLE INVESTMENT MANAGEMENT L.L.C.\nBy: /s/ David Stonehill\nName: David Stonehill\nTitle: Managing Director\nSignature Page to Blyth, Inc. Confidentiality Agreement	EX-99.D.2 8 d53527dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nMay 18, 2015\nCarlyle Investment Management L.L.C.\n520 Madison Avenue\nNew York, NY 10022\nAttention: Andrew Crawford\nDear Sirs:\nCarlyle Investment Management L.L.C. ("Carlyle" or "you" or "your") has requested certain non-public information regarding Blyth, Inc.\n(the\n"Company." or "us" or "we") to explore the possibility of a transaction between you or one or more of your Affiliates and/or designees and the\nCompany (the "Transaction"). As a condition to furnishing such information to you, the Company is requiring you to agree to\nthe\nfollowing\nprovisions set forth in this Confidentiality Agreement (this "Agreement").\n1. Certain Definitions. As used in this Agreement:\n(a) "Affiliate" means, with respect to any specified Person, any other Person that directly or indirectly controls, is controlled\nby or is under common control with such specified Person (provided that your Affiliates shall exclude your portfolio companies). The term\n"control," when used with respect to any specified Person, means the possession, directly or indirectly, of the power to direct or cause the\ndirection of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the\nterms "controlling" and "controlled" have correlative meanings.\n(b) "Evaluation Material" means any information or data concerning the Company or any of its subsidiaries, whether in oral or\nwritten form, that is disclosed to you or any of your Representatives by the Company or any of its Representatives in connection with the\nTransaction, together with all notes, memoranda, summaries, analyses, compilations, forecasts, studies, data and other documents and materials\n(in whatever form maintained) relating thereto that are prepared by you or any of your Representatives to the extent that they use or contain any\nsuch information. Notwithstanding the foregoing, "Evaluation Material" does not include information or data that (i) is or was independently\ndeveloped by you or your Representatives without reference to the Evaluation Materials; (ii) is or becomes available to the public, other than as a\nresult of disclosure by you or your Representatives in breach of this Agreement; (iii) is already in your or your Representatives' possession or\nbecomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, so long as that source\nis not known by you to be bound by a confidentiality agreement with or other obligation prohibiting such disclosure; or (iv) was within your or\nyour Representatives' possession prior to it being furnished to you or your Representatives by the Company pursuant hereto.\n(c) "Person" means any natural person, business, corporation, company, association, limited liability company, partnership,\nlimited partnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) "Representatives" means, with respect to any Person, such Person's Affiliates and the respective partners, managing\nmembers, directors, officers, owners, shareholders, co-investors, employees, managers, agents and advisors (including attorneys, accountants,\ninvestment bankers, financial advisors and consultants) of such Person and such Person's Affiliates, together with any actual or potential sources\nof financing for such Person or its Affiliates.\n2. Confidentiality. and Disclosure of Evaluation Material.\n(a) Confidentiality. and Use of Evaluation Material. Except as required by law or regulation or as otherwise provided for\nherein, you agree that all Evaluation Material shall be kept confidential and disclosed by you only to those of your Representatives to whom\ndisclosure is needed in order to facilitate your evaluation of the Transaction and who will abide to maintain the confidentiality of the Evaluation\nMaterial. You shall be liable for any breaches of this Agreement to the extent applicable to Representatives by any of your Representatives unless\nsuch Representatives have entered into a confidentiality agreement with the Company.\n(b) Compulsory. Disclosure of Evaluation Material. In the event that you or any of your Representatives is requested or\nrequired by a governmental or regulatory body (including stock exchanges or self-regulatory organizations) (by interrogatories, requests for\ninformation, subpoena or other documents or requests) to disclose any Evaluation Material, you shall provide the Company with prompt written\nnotice (to the extent reasonably practicable and permitted by law, regulation or professional standard) of such request or requirement so that the\nCompany may seek (at the Company's sole expense) an appropriate protective order and/or, in its sole discretion, waive compliance by you or\nyour Representatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, you or any of your\nRepresentatives are nonetheless legally compelled or requested to disclose any Evaluation Material, then you or such Representative may\ndisclose only such portion of the Evaluation Material as is legally required or requested to be disclosed without liability under this Agreement so\nlong as you use commercially reasonable efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidentia\ntreatment and to preserve the confidentiality of the remainder of the Evaluation Material. We will assume all reasonable costs associated with any\nsuch disclosure of Evaluation Materials that you are legally required or requested to make. Notwithstanding anything herein to the contrary,\nEvaluation Material may be disclosed by you and your Representatives when pursuant to an ordinary course examination by a regulator, bank\nexaminer or self-regulatory organization not specifically directed at the Company, the Transaction or the Evaluation Material.\n(c) Other Disclosure. Except for disclosures pursuant to Section 2(a) or Section 2(b) or as otherwise provided herein, neither\nparty shall: (a) make any disclosure to any other Person of (i) the fact that discussions are taking place concerning a potential Transaction (ii) the\nexistence or contents of this Agreement, (iii) the fact that you or your Representatives have requested or received Evaluation Material or (iv) any\nof the terms or conditions relating to the Transaction, including the status thereof; or (b) make any public statement concerning the Transaction\n(any disclosure or statement described in clauses (a) or (b) being a "Public Statement"). If either party determines that it is required to make any\nPublic\n2\nStatement for it not to be in violation of any applicable law, regulation, professional standard, order or listing agreement, then, in addition\nto\ncomplying with Section 2(b), such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure\nas is reasonably practicable and (y) consider in good faith the other party's suggestions concerning the nature and scope of the information to be\ncontained therein.\n3. Securities Law Restrictions. You acknowledge that the Evaluation Material, if disclosed, may contain material non-public\ninformation concerning the Company, and you are aware of the restrictions imposed by U.S. federal and stale securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information. Nothing herein shall constitute an admission\nby either party that any Evaluation Material or other such information in fact contains material non-public information concerning the Company.\n4. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is or has\nbeen, made by us or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be\nentitled to rely only on those representations and warranties that are expressly set forth in a definitive written agreement to consummate the\nTransaction that is executed and delivered by both you, us or our respective Affiliates (a "Definitive Transaction Agreement").\n5. Return, Destruction or Erasure of Evaluation Material. At any time upon the Company's written request, except as may be required\nto be maintained by law, regulation (including regulatory compliance policy) or professional standard, you shall either, at your option, return or\ndestroy or erase (to the extent commercially reasonable or technically practicable), all Evaluation Material (including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon) in the possession or control of you or any of your Representatives (and, in the case\nof\ndestruction or erasure, promptly provide to us a certificate and signed by a duly authorized representative confirming such destruction or\nerasure). Notwithstanding the foregoing, the Company understands and agrees that (a) you and your Representatives may maintain back-up,\narchival electronic storage of the Evaluation Material in order to comply with law or regulation or internal document retention and business\ncontinuity policies and procedures and (b) you and your Representatives will also be permitted to retain copies of such Evaluation Materials as\nmay be necessary to document your consideration of the proposed Transaction for the purpose of establishing compliance with any applicable\nlaws, regulations or professional standards and for defending or maintaining any litigation (including any administrative proceeding) relating to\nthis\nagreement\nor\nthe\nEvaluation\nMaterials,\nprovided\nthat\nall\nsuch\ninformation\nshall\ncontinue\nto\nbe\nkept\nconfidential\npursuant\nto\nthe\nterms\nof\nthis\nAgreement. Notwithstanding any such return, destruction or erasure of the Evaluation Material, you and your Representatives shall continue\nto\nbe bound by the obligations of confidentiality hereunder.\n6. Communications Regarding the Transaction; Due Diligence. Unless otherwise directed by the Company in writing, you agree that\nall communications concerning the Transaction and your due diligence investigation (including requests for additional Evaluation Material,\nmeetings with management and site visits) shall be directed solely to the representatives of the Company designated by the Company (each, a\n"Company.\n3\nRepresentative"). You and your Representatives shall not contact or communicate with any of the directors, officers, employees or customers of\nthe Company about the Transaction, unless approved in advance and in writing by the Company Representative or unless introduced to you or\nyour Representatives by a Company Representative. Notwithstanding anything in the foregoing to the contrary, nothing herein shall prohibit us\nfrom engaging in any communications with the Company or any of its Representatives not concerning a Transaction in the ordinary course of\nbusiness or consistent with past practices.\n7. Standstill. Unless a Release Event (as defined below) with respect to the Company shall have occurred, you (or anyone authorized\nto act on your behalf) shall not, for a period of six months after the date of this Agreement, directly or indirectly, do the following unless\nrequested by the Company or in connection with the Transaction:\n(a) make any statement or proposal to the board of directors of the Company or any of its stockholders with respect to, or\nmake any public announcement, proposal or offer (including any "solicitation" of "proxies" as such terms are defined or used in Regulation 14A\nof the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business combination,\nconsolidation, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring,\nrecapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any acquisition of more than 4.99% of\nany voting securities or rights or options to acquire interests in any such voting securities of the Company or any of its subsidiaries, (iv) any\nproposal to seek representation on the board of directors of the Company or any of its subsidiaries or otherwise (whether alone or in concert with\nothers) seek to control or influence the management, board of directors or policies of the Company or any of its subsidiaries, (v) any request or\nproposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal or other statement that is inconsistent with the terms\nof this Agreement, including this Section 7(a); provided, that this clause (a) shall not apply to any request to waive your obligations under this\nSection 7 so long as such request is not made in a manner which would reasonably be expected to require the Company to make a public\nannouncement regarding such request;\n(b) encourage or assist any other Person (including forming, joining or in any way participating in a "group" (as defined in\nSection 13(d)(3) of the Securities Exchange Act of 1934) with any such other Person) to do, or enter into any discussions or agreements with\nany\nother Person with respect to, any of the actions set forth in clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding\nany of the actions set forth in clause (a) above; or\n(d) offer to acquire, acquire, own or sell (or propose, agree or seek permission, to acquire, own or sell), of record or\nbeneficially, by purchase, sale or otherwise, any voting securities or indebtedness of the Company, or rights or options to acquire interests in any\nvoting securities or indebtedness of the Company (except that you may purchase for investment in market transactions beneficial ownership of\nup to 5% in aggregate of the outstanding voting securities or indebtedness of the Company or any of its subsidiaries, or rights or options to\nacquire interests in any voting securities or indebtedness of the Company or any of its subsidiaries);\n4\nin each case unless and until you have received the prior written approval of our board of directors to do any of the foregoing. The foregoing\nshall not apply to your Representatives effecting or recommending transactions in securities in the ordinary course of their business as\nan\ninvestment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nAs used herein, the term "Release Event" means any of the following: (i) we enter into a definitive agreement with respect to, or publicly\nannounce that we plan to enter into, a transaction with an Person or "group" of Persons involving the direct or indirect acquisition by such Person\nor group of all or a controlling portion of our equity securities or all or substantially all of our assets (whether by merger, consolidation, business\ncombination, tender or exchange offer or otherwise) or (ii) a Person (other than you in violation of this Agreement) has commenced a tender\noffer or an exchange offer for a majority of the total outstanding number of the Company's voting securities, which the Company and its board of\ndirectors does not reject within ten business days following commencement of such tender offer or exchange offer or within ten business days\nafter any material increase in the consideration being offered thereunder.\n8. No Joint Bidding. You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in\nconnection with the Transaction, and you are considering the Transaction solely and exclusively for your and your Affiliates' own account.\nYou\nrepresent that other than as disclosed to the Company in writing prior to the execution of this Agreement, you have not entered into, directly or\nindirectly, any agreement with any Person (other than any of your Representatives in such capacity) with respect to a possible transaction\ninvolving the Company or that could otherwise affect such Person's decisions or actions with respect to a possible transaction involving the\nCompany.\n9. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this\nAgreement and that each party shall be entitled to seek specific performance and injunctive or other equitable relief without the posting or\nsecuring of a bond or other security as a remedy for any such breach or threatened breach, in addition to all other remedies available at law or in\nequity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this\nAgreement is or would be compensable by an award of money damages and each party further agrees to waive (and to use commercially\nreasonable efforts to cause all of their Representatives to waive) any requirement for the securing or posting of any bond or other security in\nconnection with any such remedy. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\n10.\nNo Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the\nCompany is not waiving or diminishing, and shall not be deemed to have waived or diminished, its attorney work-product\n5\nprotections, attorney-client privileges or similar protections and privileges as a result of disclosing any Evaluation Material (including any\nEvaluation Material related to pending or threatened litigation) to you or any of your Representatives.\n11. Liability for Representatives. Notwithstanding anything to the contrary provided herein, none of the provisions of this Agreement\nshall in any way limit the activities of your Affiliates, provided that (i) such Affiliates have not been given access to the Evaluation Materials by\nyou or your Representatives and (ii) such Affiliates are not acting on your behalf or upon your instruction or encouragement in contravention of\nany term or provision of this Agreement. In addition, the Company acknowledges that you and your Representatives may be involved, invested\nor interested in, now or in the future, directly or indirectly, various other business and activities, including businesses that may be similar to or\ncompetitive with the Company. Nothing in this Agreement shall limit the rights of such parties to (i) make such investments or pursue any\nopportunities or grant the Company any right to participate therein or (ii) from investing in, operating or participating in the management of its\nown business(es) or entity(ies) which compete or may compete, directly or indirectly, with the Company.\n12. Term. Except for Sections 9 (Remedies), 13(h) (Governing Law; Forum) and 13(i) (WAIVER OF JURY TRIAL), which shall\nbe\nbinding in perpetuity or until the latest date permitted by applicable law, and except for provisions that expressly state that they terminate on an\nearlier date, this Agreement shall expire at the earlier of (i) two years from the date of this Agreement and (ii) the consummation of the\nTransaction.\n13. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters\nset forth herein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements\nimposed by any offering memorandum web-based database or similar repository of Evaluation Material to which you or your Representatives is\ngranted access in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an\noffering\nmemorandum\nor\nsubmission\nof\nan\nelectronic\nsignature,\n"clicking"\non\nan\n"I\nAgree"\nicon\nor\nother\nindication\nof\nassent\nto\nsuch\nadditional\nconfidentiality conditions, it being understood and agreed that your confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be amended except by an agreement executed by the parties hereto in writing.\n(c) Ownership of Evaluation Material: No License. All of the Evaluation Material is and shall remain the property of the\nCompany. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other property right\nor interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible property\nor\nproprietary information disclosed, embodied fixed, comprised or contained in any Evaluation Material.\n6\n(d) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any\nparty without the prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and\nunenforceable. Any purchaser of the Company or all or substantially all of the Company's assets shall be entitled to the benefits of this\nAgreement whether or not this Agreement is assigned to such Person.\n(e) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly\nsigned and delivered by or on behalf of both parties. Each party agrees that no failure or delay by the other party in exercising any right, power or\nprivilege hereunder will operate as a waiver, nor will any single or partial exercise thereof preclude any other or further exercise thereof or\nthe\nexercise of any right, power or privilege hereunder. No waiver by any party shall operate or be construed as a waiver in respect of any failure,\nbreach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or\nafter that waiver.\n(f) Severability.. The invalidity, illegality or unenforceability of any provision of this Agreement shall not impair or affect the\nvalidity, legality or enforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances\nwould be inequitable as determined by a court of competent jurisdiction.\n(g) No Obligation to Complete a Transaction. Each party understands that the other party has not, as of the date hereof,\nauthorized or made any decision to pursue any Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose\nany obligation on either party: (i) to consummate a Transaction; (ii) to conduct or continue discussions or negotiations concerning a Transaction;\n(iii)\nto\nenter into a joint venture or other business relationship of any kind; or (iv) to enter into or negotiate a Definitive Transaction Agreement.\nExcept for matters specifically agreed to in this Agreement, neither party shall have any rights or obligations of any kind whatsoever with respect\nto a Transaction by virtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and\nuntil a Definitive Transaction Agreement is executed and delivered. You acknowledge that the Company reserves the right, in its sole discretion\nand without giving any reason therefor, to: (A) provide or not to provide Evaluation Material to, and to request the return, destruction or erasure\nof Evaluation Material by, you or any of your Representatives; (B) adopt additional specific procedures to protect the confidentiality of the\nTransaction or certain sensitive Evaluation Material; (C) reject any proposals made by you or any of your Representatives; (D)\nterminate\ndiscussions or negotiations with you or any of your Representatives; and (E) engage in discussions or negotiations, and to enter into any\nagreement, with any other Person, in each case, in the Company's sole discretion, without notice to you or any of your Representatives, at any\ntime and for any reason or no reason. You shall not have any claim or cause of action against the Company or any of its Representatives\nin\nrespect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement or as otherwise provided in this Agreement.\n(h) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based\nupon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed\n7\nby, and construed in accordance with, the laws of the State of New York without regard to the principles of conflicts of laws in any jurisdiction.\nEach party consents and submits to the exclusive jurisdiction of the courts of the State of New York and the courts of the United States located in\nNew York for the adjudication of any action or legal proceeding relating to or arising out of this Agreement and the transactions contemplated\nhereby (and each party agrees not to commence any action or legal proceeding relating thereto except in any such court). Each party hereby\nirrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue in such courts and agrees not to\nplead or claim in any such court that any such action or legal proceeding brought in any such court has been brought in an inconvenient forum.\nEach party hereby agrees that service of any process, summons, notice or document by overnight courier addressed to such party shall be\neffective service of process for any such suit, action or proceeding brought against such party in any such court. Each party hereto agrees that a\nfinal judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be\nenforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\n(i) WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL\nBY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(j) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same\neffect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this\nAgreement. This Agreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by\nthe other party hereto.\n[Signature page follows]\n8\nVery truly yours,\nBLYTH, INC.\nBy:\n/s/ Robert Goergen, JR\nName: ROBERT GOERGEN, JR\nTitle: CEO\nAccepted and agreed to\nAs of the date first written above:\nCARLYLE INVESTMENT MANAGEMENT L.L.C.\nBy:\n/s/ David Stonehill\nName: David Stonehill\nTitle: Managing Director\nSignature Page to Blyth, Inc. Confidentiality Agreement	EX-99.D.2 8 d53527dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nMay 18, 2015\nCarlyle Investment Management L.L.C .\n520 Madison Avenue\nNew York, NY 10022\nAttention: Andrew Crawford\nDear Sirs:\nCarlyle Investment Management L.L.C . (“Carlyle” or “you” or “your”) has requested certain non-public information regarding Blyth, Inc. (the\n“Company” or “us” or “we”) to explore the possibility of a transaction between you or one or more of your Affiliates and/or designees and the\nCompany (the “Transaction”). As a condition to furnishing such information to you, the Company is requiring you to agree to the following\nprovisions set forth in this Confidentiality Agreement (this “Agreement”).\n1. Certain Definitions. As used in this Agreement:\n(a) “Affiliate” means, with respect to any specified Person, any other Person that directly or indirectly controls, is controlled\nby or is under common control with such specified Person (provided that your Affiliates shall exclude your portfolio companies). The term\n“control,” when used with respect to any specified Person, means the possession, directly or indirectly, of the power to direct or cause the\ndirection of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the\nterms “controlling” and “controlled” have correlative meanings.\n(b) “Evaluation Material” means any information or data concerning the Company or any of its subsidiaries, whether in oral or\nwritten form, that is disclosed to you or any of your Representatives by the Company or any of its Representatives in connection with the\nTransaction, together with all notes, memoranda, summaries, analyses, compilations, forecasts, studies, data and other documents and materials\n(in whatever form maintained) relating thereto that are prepared by you or any of your Representatives to the extent that they use or contain any\nsuch information. Notwithstanding the foregoing, “Evaluation Material” does not include information or data that (i) is or was independently\ndeveloped by you or your Representatives without reference to the Evaluation Materials; (ii) is or becomes available to the public, other than as a\nresult of disclosure by you or your Representatives in breach of this Agreement; (iii) is already in your or your Representatives’ possession or\nbecomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, so long as that source\nis not known by you to be bound by a confidentiality agreement with or other obligation prohibiting such disclosure; or (iv) was within your or\nyour Representatives’ possession prior to it being furnished to you or your Representatives by the Company pursuant hereto.\n(c) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership,\nlimited partnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) “Representatives” means, with respect to any Person, such Person’s Affiliates and the respective partners, managing\nmembers, directors, officers, owners, shareholders, co-investors, employees, managers, agents and advisors (including attorneys, accountants,\ninvestment bankers, financial advisors and consultants) of such Person and such Person’s Affiliates, together with any actual or potential sources\nof financing for such Person or its Affiliates.\n2. Confidentiality and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. Except as required by law or regulation or as otherwise provided for\nherein, you agree that all Evaluation Material shall be kept confidential and disclosed by you only to those of your Representatives to whom\ndisclosure is needed in order to facilitate your evaluation of the Transaction and who will abide to maintain the confidentiality of the Evaluation\nMaterial. You shall be liable for any breaches of this Agreement to the extent applicable to Representatives by any of your Representatives unless\nsuch Representatives have entered into a confidentiality agreement with the Company.\n(b) Compulsory Disclosure of Evaluation Material. In the event that you or any of your Representatives is requested or\nrequired by a governmental or regulatory body (including stock exchanges or self-regulatory organizations) (by interrogatories, requests for\ninformation, subpoena or other documents or requests) to disclose any Evaluation Material, you shall provide the Company with prompt written\nnotice (to the extent reasonably practicable and permitted by law, regulation or professional standard) of such request or requirement so that the\nCompany may seek (at the Company’s sole expense) an appropriate protective order and/or, in its sole discretion, waive compliance by you or\nyour Representatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, you or any of your\nRepresentatives are nonetheless legally compelled or requested to disclose any Evaluation Material, then you or such Representative may\ndisclose only such portion of the Evaluation Material as is legally required or requested to be disclosed without liability under this Agreement so\nlong as you use commercially reasonable efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment and to preserve the confidentiality of the remainder of the Evaluation Material. We will assume all reasonable costs associated with any\nsuch disclosure of Evaluation Materials that you are legally required or requested to make. Notwithstanding anything herein to the contrary,\nEvaluation Material may be disclosed by you and your Representatives when pursuant to an ordinary course examination by a regulator, bank\nexaminer or self-regulatory organization not specifically directed at the Company, the Transaction or the Evaluation Material.\n(c) Other Disclosure. Except for disclosures pursuant to Section 2(a) or Section 2(b) or as otherwise provided herein, neither\nparty shall: (a) make any disclosure to any other Person of (i) the fact that discussions are taking place concerning a potential Transaction, (ii) the\nexistence or contents of this Agreement, (iii) the fact that you or your Representatives have requested or received Evaluation Material or (iv) any\nof the terms or conditions relating to the Transaction, including the status thereof; or (b) make any public statement concerning the Transaction\n(any disclosure or statement described in clauses (a) or (b) being a “Public Statement”). If either party determines that it is required to make any\nPublic\n2\nStatement for it not to be in violation of any applicable law, regulation, professional standard, order or listing agreement, then, in addition to\ncomplying with Section 2(b), such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure\nas is reasonably practicable and (y) consider in good faith the other party’s suggestions concerning the nature and scope of the information to be\ncontained therein.\n3. Securities Law Restrictions. You acknowledge that the Evaluation Material, if disclosed, may contain material non-public\ninformation concerning the Company, and you are aware of the restrictions imposed by U.S. federal and stale securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information. Nothing herein shall constitute an admission\nby either party that any Evaluation Material or other such information in fact contains material non-public information concerning the Company.\n4. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is or has\nbeen, made by us or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be\nentitled to rely only on those representations and warranties that are expressly set forth in a definitive written agreement to consummate the\nTransaction that is executed and delivered by both you, us or our respective Affiliates (a “Definitive Transaction Agreement”).\n5. Return, Destruction or Erasure of Evaluation Material. At any time upon the Company’s written request, except as may be required\nto be maintained by law, regulation (including regulatory compliance policy) or professional standard, you shall either, at your option, return or\ndestroy or erase (to the extent commercially reasonable or technically practicable), all Evaluation Material (including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon) in the possession or control of you or any of your Representatives (and, in the case of\ndestruction or erasure, promptly provide to us a certificate and signed by a duly authorized representative confirming such destruction or\nerasure). Notwithstanding the foregoing, the Company understands and agrees that (a) you and your Representatives may maintain back-up,\narchival electronic storage of the Evaluation Material in order to comply with law or regulation or internal document retention and business\ncontinuity policies and procedures and (b) you and your Representatives will also be permitted to retain copies of such Evaluation Materials as\nmay be necessary to document your consideration of the proposed Transaction for the purpose of establishing compliance with any applicable\nlaws, regulations or professional standards and for defending or maintaining any litigation (including any administrative proceeding) relating to\nthis agreement or the Evaluation Materials, provided that all such information shall continue to be kept confidential pursuant to the terms of this\nAgreement. Notwithstanding any such return, destruction or erasure of the Evaluation Material, you and your Representatives shall continue to\nbe bound by the obligations of confidentiality hereunder.\n6. Communications Regarding the Transaction; Due Diligence. Unless otherwise directed by the Company in writing, you agree that\nall communications concerning the Transaction and your due diligence investigation (including requests for additional Evaluation Material,\nmeetings with management and site visits) shall be directed solely to the representatives of the Company designated by the Company (each, a\n“Company\n3\nRepresentative”). You and your Representatives shall not contact or communicate with any of the directors, officers, employees or customers of\nthe Company about the Transaction, unless approved in advance and in writing by the Company Representative or unless introduced to you or\nyour Representatives by a Company Representative. Notwithstanding anything in the foregoing to the contrary, nothing herein shall prohibit us\nfrom engaging in any communications with the Company or any of its Representatives not concerning a Transaction in the ordinary course of\nbusiness or consistent with past practices.\n7. Standstill. Unless a Release Event (as defined below) with respect to the Company shall have occurred, you (or anyone authorized\nto act on your behalf) shall not, for a period of six months after the date of this Agreement, directly or indirectly, do the following unless\nrequested by the Company or in connection with the Transaction:\n(a) make any statement or proposal to the board of directors of the Company or any of its stockholders with respect to, or\nmake any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A\nof the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business combination,\nconsolidation, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring,\nrecapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any acquisition of more than 4.99% of\nany voting securities or rights or options to acquire interests in any such voting securities of the Company or any of its subsidiaries, (iv) any\nproposal to seek representation on the board of directors of the Company or any of its subsidiaries or otherwise (whether alone or in concert with\nothers) seek to control or influence the management, board of directors or policies of the Company or any of its subsidiaries, (v) any request or\nproposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal or other statement that is inconsistent with the terms\nof this Agreement, including this Section 7(a); provided, that this clause (a) shall not apply to any request to waive your obligations under this\nSection 7 so long as such request is not made in a manner which would reasonably be expected to require the Company to make a public\nannouncement regarding such request;\n(b) encourage or assist any other Person (including forming, joining or in any way participating in a “group” (as defined in\nSection 13(d)(3) of the Securities Exchange Act of 1934) with any such other Person) to do, or enter into any discussions or agreements with any\nother Person with respect to, any of the actions set forth in clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding\nany of the actions set forth in clause (a) above; or\n(d) offer to acquire, acquire, own or sell (or propose, agree or seek permission, to acquire, own or sell), of record or\nbeneficially, by purchase, sale or otherwise, any voting securities or indebtedness of the Company, or rights or options to acquire interests in any\nvoting securities or indebtedness of the Company (except that you may purchase for investment in market transactions beneficial ownership of\nup to 5% in aggregate of the outstanding voting securities or indebtedness of the Company or any of its subsidiaries, or rights or options to\nacquire interests in any voting securities or indebtedness of the Company or any of its subsidiaries);\n4\nin each case unless and until you have received the prior written approval of our board of directors to do any of the foregoing. The foregoing\nshall not apply to your Representatives effecting or recommending transactions in securities in the ordinary course of their business as an\ninvestment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nAs used herein, the term “Release Event” means any of the following: (i) we enter into a definitive agreement with respect to, or publicly\nannounce that we plan to enter into, a transaction with an Person or “group” of Persons involving the direct or indirect acquisition by such Person\nor group of all or a controlling portion of our equity securities or all or substantially all of our assets (whether by merger, consolidation, business\ncombination, tender or exchange offer or otherwise) or (ii) a Person (other than you in violation of this Agreement) has commenced a tender\noffer or an exchange offer for a majority of the total outstanding number of the Company’s voting securities, which the Company and its board of\ndirectors does not reject within ten business days following commencement of such tender offer or exchange offer or within ten business days\nafter any material increase in the consideration being offered thereunder.\n8. No Joint Bidding. You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in\nconnection with the Transaction, and you are considering the Transaction solely and exclusively for your and your Affiliates’ own account. You\nrepresent that other than as disclosed to the Company in writing prior to the execution of this Agreement, you have not entered into, directly or\nindirectly, any agreement with any Person (other than any of your Representatives in such capacity) with respect to a possible transaction\ninvolving the Company or that could otherwise affect such Person’s decisions or actions with respect to a possible transaction involving the\nCompany.\n9. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this\nAgreement and that each party shall be entitled to seek specific performance and injunctive or other equitable relief without the posting or\nsecuring of a bond or other security as a remedy for any such breach or threatened breach, in addition to all other remedies available at law or in\nequity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this\nAgreement is or would be compensable by an award of money damages and each party further agrees to waive (and to use commercially\nreasonable efforts to cause all of their Representatives to waive) any requirement for the securing or posting of any bond or other security in\nconnection with any such remedy. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\n10. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the\nCompany is not waiving or diminishing, and shall not be deemed to have waived or diminished, its attorney work-product\n5\nprotections, attorney-client privileges or similar protections and privileges as a result of disclosing any Evaluation Material (including any\nEvaluation Material related to pending or threatened litigation) to you or any of your Representatives.\n11. Liability for Representatives. Notwithstanding anything to the contrary provided herein, none of the provisions of this Agreement\nshall in any way limit the activities of your Affiliates, provided that (i) such Affiliates have not been given access to the Evaluation Materials by\nyou or your Representatives and (ii) such Affiliates are not acting on your behalf or upon your instruction or encouragement in contravention of\nany term or provision of this Agreement. In addition, the Company acknowledges that you and your Representatives may be involved, invested\nor interested in, now or in the future, directly or indirectly, various other business and activities, including businesses that may be similar to or\ncompetitive with the Company. Nothing in this Agreement shall limit the rights of such parties to (i) make such investments or pursue any\nopportunities or grant the Company any right to participate therein or (ii) from investing in, operating or participating in the management of its\nown business(es) or entity(ies) which compete or may compete, directly or indirectly, with the Company.\n12. Term. Except for Sections 9 (Remedies), 13(h) (Governing Law; Forum) and 13(i) (WAIVER OF JURY TRIAL), which shall be\nbinding in perpetuity or until the latest date permitted by applicable law, and except for provisions that expressly state that they terminate on an\nearlier date, this Agreement shall expire at the earlier of (i) two years from the date of this Agreement and (ii) the consummation of the\nTransaction.\n13. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters\nset forth herein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements\nimposed by any offering memorandum, web-based database or similar repository of Evaluation Material to which you or your Representatives is\ngranted access in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an\noffering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that your confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be amended except by an agreement executed by the parties hereto in writing.\n(c) Ownership of Evaluation Material: No License. All of the Evaluation Material is and shall remain the property of the\nCompany. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other property right\nor interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible property or\nproprietary information disclosed, embodied fixed, comprised or contained in any Evaluation Material.\n6\n(d) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any\nparty without the prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and\nunenforceable. Any purchaser of the Company or all or substantially all of the Company’s assets shall be entitled to the benefits of this\nAgreement whether or not this Agreement is assigned to such Person.\n(e) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly\nsigned and delivered by or on behalf of both parties. Each party agrees that no failure or delay by the other party in exercising any right, power or\nprivilege hereunder will operate as a waiver, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder. No waiver by any party shall operate or be construed as a waiver in respect of any failure,\nbreach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or\nafter that waiver.\n(f) Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall not impair or affect the\nvalidity, legality or enforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances\nwould be inequitable as determined by a court of competent jurisdiction.\n(g) No Obligation to Complete a Transaction. Each party understands that the other party has not, as of the date hereof,\nauthorized or made any decision to pursue any Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose\nany obligation on either party: (i) to consummate a Transaction; (ii) to conduct or continue discussions or negotiations concerning a Transaction;\n(iii) to enter into a joint venture or other business relationship of any kind; or (iv) to enter into or negotiate a Definitive Transaction Agreement.\nExcept for matters specifically agreed to in this Agreement, neither party shall have any rights or obligations of any kind whatsoever with respect\nto a Transaction by virtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and\nuntil a Definitive Transaction Agreement is executed and delivered. You acknowledge that the Company reserves the right, in its sole discretion\nand without giving any reason therefor, to: (A) provide or not to provide Evaluation Material to, and to request the return, destruction or erasure\nof Evaluation Material by, you or any of your Representatives; (B) adopt additional specific procedures to protect the confidentiality of the\nTransaction or certain sensitive Evaluation Material; (C) reject any proposals made by you or any of your Representatives; (D) terminate\ndiscussions or negotiations with you or any of your Representatives; and (E) engage in discussions or negotiations, and to enter into any\nagreement, with any other Person, in each case, in the Company’s sole discretion, without notice to you or any of your Representatives, at any\ntime and for any reason or no reason. You shall not have any claim or cause of action against the Company or any of its Representatives in\nrespect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement or as otherwise provided in this Agreement.\n(h) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based\nupon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed\n7\nby, and construed in accordance with, the laws of the State of New York without regard to the principles of conflicts of laws in any jurisdiction.\nEach party consents and submits to the exclusive jurisdiction of the courts of the State of New York and the courts of the United States located in\nNew York for the adjudication of any action or legal proceeding relating to or arising out of this Agreement and the transactions contemplated\nhereby (and each party agrees not to commence any action or legal proceeding relating thereto except in any such court). Each party hereby\nirrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue in such courts and agrees not to\nplead or claim in any such court that any such action or legal proceeding brought in any such court has been brought in an inconvenient forum.\nEach party hereby agrees that service of any process, summons, notice or document by overnight courier addressed to such party shall be\neffective service of process for any such suit, action or proceeding brought against such party in any such court. Each party hereto agrees that a\nfinal judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be\nenforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\n(i) WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL\nBY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(j) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same\neffect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this\nAgreement. This Agreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by\nthe other party hereto.\n[Signature page follows]\n8\nVery truly yours,\nBLYTH, INC.\nBy: /s/ Robert Goergen, JR\nName: ROBERT GOERGEN, JR\nTitle: CEO\nAccepted and agreed to\nAs of the date first written above:\nCARLYLE INVESTMENT MANAGEMENT L.L .C.\nBy: /s/ David Stonehill\nName: David Stonehill\nTitle: Managing Director\nSignature Page to Blyth, Inc. Confidentiality Agreement
c860715fa71346ae77f54b5a8ae204bd.pdf	effective_date jurisdiction party term	EX-10.2 3 d403161dex102.htm EX-10.2\nExhibit 10.2\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement (“Agreement”) is made by and between Zimmer,\nInc., a corporation having its principal headquarters in Warsaw, Indiana, and\n(“Employee”).\nRecitals\nA. For purposes of this Agreement, the term “Company” means Zimmer, Inc. and/or any or each of its affiliates, parents, or direct or\nindirect subsidiaries, as well as any successor-in-interest to Zimmer, Inc. and/or to any of its direct or indirect subsidiaries, affiliates, or parents.\nB. Employee is employed or has been offered employment by Company in an executive and/or high-level managerial capacity in which\nEmployee will have extensive access to trade secrets and confidential information of Company.\nC. Company has offered Employee the grant of certain equity-based awards under an equity incentive plan or program of the Company,\ncontingent upon Employee’s entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, Company and Employee agree to be legally bound as follows:\n1. Acknowledgements. Employee acknowledges that Company is engaged in the highly competitive business of the development,\nmanufacture, distribution, and sale of orthopaedic medical, oral rehabilitation, spine and/or trauma devices, products, processes and services, among\nother products and services, and that Employee serves in an executive and/or high-level managerial capacity for Company and in that capacity\nEmployee has and/or will have access to and will gain knowledge of substantial trade secrets and confidential information of Company.\n2. Non-Disclosure and Ownership of Confidential Information. Employee acknowledges that Confidential Information is a valuable,\nspecial, and unique asset of Company, and solely the property of Company, and agrees to the following:\n(a) Confidential Information Defined. The term “Confidential Information” includes, but is not limited to, any and all of Company’s trade\nsecrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other\nthird parties who could derive economic value from its use or disclosure. Confidential Information includes, without limitation, confidential business\nmethods and processes, research and development information, business plans and strategies, marketing plans and strategies, information pertaining\nto current and prospective customers, information pertaining to distributors, pricing information, costing information, non-public financial\ninformation, personnel information, and information about current and prospective products or services, whether or not reduced to writing or other\ntangible medium of expression, including work product created by Employee in rendering services for Company.\n(b) Non-Disclosure of Confidential Information. During Employee’s employment with Company and thereafter, Employee will not disclose,\ntransfer, or use (or seek to induce others to disclose,\ntransfer, or use) any Confidential Information for any purpose other than i) disclosure to authorized employees and agents of Company who are\nbound to maintain the confidentiality of the Confidential Information; and/or ii) for authorized purposes during the course of Employee’s\nemployment in furtherance of Company’s business. Employee’s non-disclosure obligations shall continue as long as the Confidential Information\nremains confidential and shall not apply to information that becomes generally known to the public through no fault or action of Employee.\n(c) Protection of Confidential Information. Employee will notify Company in writing of any circumstances which may constitute unauthorized\ndisclosure, transfer, or use of Confidential Information. Employee will use Employee’s best efforts to protect Confidential Information from\nunauthorized disclosure, transfer, or use. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized\ndisclosure, transfer, or use of Confidential Information.\n3. Ownership of Intellectual Property.\n(a) Invention Defined. The term “Invention” includes, but is not limited to ideas, programs, processes, systems, intellectual property, works of\nauthorship, copyrightable materials, discoveries, and/or improvements which Employee discovers, invents, originates, develops, makes, authors, or\nconceives alone or in conjunction with others during Employee’s employment with Company and/or within six (6) months after Employee’s\nemployment ends which relate to Company’s present or future business. An Invention is covered by this Agreement regardless of whether i)\nEmployee conceived of the Invention in the scope of Employee’s employment; ii) the Invention is patentable; or iii) Company takes any action to\ncommercialize or develop the Invention.\n(b) Ownership of Inventions. Inventions are solely the property of Company. Employee agrees that by operation of law and/or the effect of this\nAgreement Employee does not have any rights, title, or interest in any Inventions. Notwithstanding, Employee may be recognized as the inventor of\nan Invention without retaining any other rights associated therewith.\n(c) Disclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title and interest Employee may have in any\nInventions that are discovered, invented, originated, developed, made, authored, or conceived by Employee (whether alone or with others) during\nEmployee’s employment with Company and/or within six (6) months after Employee’s employment ends which relate to Company’s present or\nfuture business. Employee agrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute such documents and do\nsuch other acts as may be necessary in the opinion of Company to establish and preserve Company’s property rights in all such Inventions. This\nsection shall not apply to any Invention for which no equipment, supplies, facility or trade secret information of Company was used and which was\ndeveloped entirely on Employee’s own time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company’s actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee for Company.\n(d) Works of Authorship. All written, graphic or recorded material and all other works of authorship fixed in a tangible medium of expression\nmade or created by Employee, solely or jointly with others, during Employee’s employment with Company and relating to Company’s business,\nactual or contemplated, shall be the exclusive property of Company (collectively “Works”). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction of Company, is\ncopyrightable, such Work will be a “work made for hire,” as that term is defined in the copyright laws of the United States. If, for any reason, any\ncopyrightable Works created by Employee are excluded from that definition, Employee hereby assigns and conveys to Company all right, title and\ninterest (including any copyright and renewals) in such Works.\n-2-\n(e) Attribution and Use of Works and Inventions; Waiver of Assertion of “Moral” Rights in Inventions and Works. Employee agrees that\nCompany and its licensees are not required to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any “moral” rights in any Inventions and Works. Employee agrees that Company and\nits licensees shall have sole discretion with regard to how and for what purposes any Inventions or Works are used or distributed.\n(f) Employee Cooperation in Establishment of Company Proprietary Rights. Employee will sign documents of assignment, declarations and\nother documents and take all other actions reasonably required by Company, at Company’s expense, to perfect and enforce any of its proprietary\nrights. In the event Company is unable, for any reason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to\napply for, prosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration, or other filing to\nprotect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its duly authorized officers and agents as\nEmployee’s agent and attorney in fact, to act for and on Employee’s behalf, to execute and file any such application, registration or other filing, and\nto do all other lawfully permitted acts to further the prosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or\nregistrations for trademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4. Return of Confidential Information and Company Property. Immediately upon termination of Employee’s employment with Company,\nEmployee shall return to Company all of Company’s property relating to Company’s business, including without limitation all of Company’s\nproperty which is in the possession, custody, or control of Employee such as Confidential Information, documents, hard copy files, copies of\ndocuments and electronic information/files.\n5. Obligations to Other Entities or Persons. Employee warrants that Employee is not bound by the terms of a confidentiality agreement or\nany other legal obligation which would either preclude or limit Employee from disclosing or using any of Employee’s ideas, inventions, discoveries\nor other information or otherwise fulfilling Employee’s obligations to Company. While employed by Company, Employee shall not disclose or use\nany confidential information belonging to another entity or other person.\n6. Conflict of Interest and Duty of Loyalty. During Employee’s employment with Company, Employee shall not engage, directly or\nindirectly, in any activity, employment or business venture, whether or not for remuneration, that i) is competitive with Company’s business;\nii) deprives or potentially could deprive Company of any business opportunity; iii) conflicts or potentially could conflict with Company’s business\ninterests; or iv) is otherwise detrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n7. Restrictive Covenants. Employee agrees to, and covenants to comply with, each of the following separate and divisible restrictions:\n(a) Definitions.\n(1) “Competing Product” is defined as any product, process or service that is similar to (or would serve as a substitute for) and competitive\nwith any product, process or service that Company is researching, developing, manufacturing, distributing, selling and/or providing at the time of\nEmployee’s termination of employment with Company.\n-3-\n(2) “Competing Organization” is defined as any organization that researches, develops, manufactures, markets, distributes and/or sells one or\nmore Competing Products. A Competing Organization is diversified if it operates multiple, independently operating business divisions, units, lines or\nsegments some of which do not research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3) “Prohibited Capacity” is defined as (a) any same or similar capacity to that held by Employee at any time during Employee’s last two\n(2) years of employment with Company; (b) any executive or managerial capacity; or (c) any capacity in which Employee’s knowledge of\nConfidential Information and/or Inventions would render Employee’s assistance a competitive advantage to the Competing Organization.\n(4) “Restricted Geographic Area” is defined as all countries, territories, and states in which Company is doing business or is selling its\nproducts at the time of termination of Employee’s employment with Company. Employee acknowledges that this geographic scope is reasonable\ngiven Employee’s position with Company, the international scope of Company’s business; and the fact that Employee could compete with Company\nfrom anywhere Company does business.\n(5) “Restricted Period” is defined as the date Employee executes this Agreement, continuing through the eighteen (18) months after the\nEmployee’s last day of employment with Company unless otherwise extended by Employee’s breach of this Agreement. The running time on the\nRestricted Period shall be suspended during any period in which Employee is in violation of any of the restrictive covenants set forth herein, and all\nrestrictions shall automatically be extended by the period Employee was in violation of any such restrictions.\n(6) “Customer” is defined as any person or entity with respect to whom, as of the date of Employee’s separation from Company employment\nor at any time during the two years prior to such separation, Company sold or provided any products and/or services.\n(7) “Active Prospect” is defined as any person or entity that Company individually and specifically marketed to and/or held discussions with\nregarding the distribution and/or sale of any of Company’s products, processes or services at any time during the last six (6) months of Employee’s\nemployment with Company.\n(b) Restrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of the following independent and divisible\nrestrictions:\n(1) Covenant Not to Compete.\n(A) Employee will not, within the Restricted Geographic Area, be employed by, work for, consult with, provide services to, or lend assistance to any\nCompeting Organization in a Prohibited Capacity.\n(B) Employee may be employed by, work for, consult with, provide services to, or lend assistance to a Competing Organization provided that: i) the\nCompeting Organization’s business is diversified; ii) the part of the Competing Organization’s business with which Employee will be affiliated\nwould not, evaluated on a stand-alone basis, be a Competing Organization; iii) Employee’s affiliation with the Competing Organization does not\ninvolve any Competing Products; iv) Employee provides Company a written description of Employee’s anticipated activities on behalf of the\nCompeting Organization which includes, without limitation, an assurance satisfactory to Company that Employee’s affiliation with the Competing\nOrganization does not constitute a Prohibited Capacity; and v) Employee’s affiliation with the Competing Organization does not constitute a\ncompetitive disadvantage to Company.\n-4-\n(2) Covenant Not to Solicit Customers or Active Prospects. Employee will not i) provide, sell, or market; ii) assist in the provision, selling or\nmarketing of; or iii) attempt to provide, sell or market any Competing Products to any of Company’s Customers or Active Prospects located in the\nRestricted Geographic Area.\n(3) Covenant Not to Interfere with Business Relationships. Employee will not, within the Restricted Geographic Area, urge, induce or seek to\ninduce any of Company’s independent contractors, subcontractors, distributors, brokers, consultants, sales representatives, customers, vendors,\nsuppliers or any other person or entity with whom Company has a business relationship at the time of Employee’s separation from Company\nemployment to terminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any manner modify\nany such person’s or entity’s business with, or representation of, Company.\n(4) Covenant Not to Solicit Company Employees. Employee will not, within the Restricted Geographic Area, employ, solicit for employment,\nor advise any other person or entity to employ or solicit for employment, any individual employed by Company at the time of Employee’s separation\nfrom Company employment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with Company to\nwork for, consult with, provide services to, or lend assistance to any Competing Organization.\n(5) Covenant Not to Disparage Company. Employee will not make or publish any disparaging or derogatory statements about Company; about\nCompany’s products, processes, or services; or about Company’s past, present and future officers, directors, employees, attorneys and agents.\nDisparaging or derogatory statements include, but are not limited to, negative statements regarding Company’s business or other practices; provided,\nhowever, nothing herein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8. Reasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement restrict Employee\nfrom engaging in activities for a competitive purpose and are reasonably necessary to protect Company’s legitimate interests in Confidential\nInformation, Inventions, and goodwill. Additionally, Employee acknowledges and agrees that the restrictive covenants are reasonable in all respects,\nincluding, but not limited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and agrees that\nthe restrictive covenants set forth in this Agreement will not pose any hardship on Employee and that Employee will reasonably be able to earn an\nequivalent livelihood without violating any provision of this Agreement.\n9. Non-Competition Period Payments. To the extent Employee is denied a specific employment position that would otherwise be offered to\nEmployee by a Competing Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement, and provided\nEmployee satisfies all conditions stated herein, then upon expiration of the period of time represented by any severance benefits Employee was\noffered, Company will make payments to Employee equal to Employee’s monthly base pay at the time of Employee’s separation from Company\nemployment (exclusive of bonus and other extra compensation and any other employee benefits) for each month of such unemployment through the\nend of the Restricted Period.\n(a) Expiration of Severance Benefits. Severance benefits shall be deemed to have expired at the conclusion of the period of time represented by\nthe total amount of any severance benefits offered to\n-5-\nEmployee (even if such offered severance benefits are not actually paid as a result of action or inaction on the part of Employee), including but not\nlimited to basic severance benefits, supplemental severance benefits and severance benefits payable pursuant to a change in control severance\nagreement to which Employee is a party.\n(b) Verification of Eligibility for Non-Competition Period Payments. To qualify for payments under this Section 9, Employee must provide\nCompany detailed written documentation supporting eligibility for payment, including, at a minimum, (a) the name and location of the Competing\nOrganization that would have employed Employee but for the provisions of Section 7 of this Agreement, (b) the title, nature, and detailed job\nresponsibilities of the employment position with the Competing Organization that Employee was denied, (c) the date Employee was denied the\nemployment position, and (d) the name and contact information of a managerial employee at the Competing Organization who has sufficient\nauthority to confirm that Employee was denied this specific employment position with the Competing Organization solely because Employee is\nsubject to the provisions of Section 7 of this Agreement (the “eligibility documentation”). Upon receipt of the eligibility documentation, Company\nwill determine eligibility for payment and, if eligibility is established, payments will commence as of the date of Company’s receipt of the eligibility\ndocumentation.\n(c) Obligation to Pursue Replacement Employment and Verification of Continued Eligibility for Non-Competition Period Payments. Employee\nis obligated to diligently seek and pursue replacement employment that does not violate Section 7 of this Agreement (“replacement employment”)\nduring any period in which Employee seeks and/or accepts payment from Company under this Section 9. After eligibility for non-competition period\npayments is established, Employee will, on or before the 15 day of each month of eligibility for continued payments, submit to Company a written\nstatement (i) identifying by name and address all prospective employers with whom Employee has applied or inquired about employment;\n(ii) identifying positions sought with each listed employer and specific actions taken in seeking each position; (iii) describing all other efforts made\nto obtain replacement employment; and (iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the reason(s) for declining if the\noffer was declined.\n(d) Effect of Replacement Employment on Non-Competition Period Payments. If Employee is denied a specific employment position with a\nCompeting Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement but obtains replacement employment,\nand the monthly compensation (including base pay, commissions, incentive compensation, bonuses and other compensation) for the replacement\nemployment is less than Employee’s monthly base pay at the time of Employee’s separation from employment with Company, Company agrees to\npay Employee the difference for each such month through the end of the Restricted Period, again upon expiration of any severance benefits which\nEmployee was offered and provided Employee satisfies all conditions stated herein. Employee shall submit to Company payroll records (as well as\nany other records reasonably requested by Company) showing all compensation received by Employee from the replacement employment as a\ncondition of Company’s payment of Non-Competition Period Payments covering any period of time when Employee is working in replacement\nemployment.\n(e) Company’s Right To Provide Release of Obligations in Lieu of Non-Competition Period Payments. Notwithstanding any of the foregoing\nprovisions of this Section 9, Company reserves the right to release Employee from Employee’s obligations under Section 7 of this Agreement at any\ntime during the Restricted Period, in full or in sufficient part to allow Employee to accept employment that would otherwise be prohibited under this\nAgreement, at which time Company’s payment obligations under this Section 9 shall cease immediately and Employee shall not be entitled to any\nfurther such payments or compensation.\n-6-\nth\n10. Severability, Modification of Restrictions: The covenants and restrictions in this Agreement are separate and divisible, and to the extent\nany clause, portion or section of this Agreement is determined to be unenforceable or invalid for any reason, Company and Employee acknowledge\nand agree that such unenforceability or invalidity shall not affect the enforceability or validity of the remainder of the Agreement. If any particular\ncovenant, provision or clause of this Agreement is determined to be unreasonable or unenforceable for any reason, including, without limitation,\ntemporal duration, scope of prohibited activity, and/or scope of geographic area, Company and Employee acknowledge and agree that such\ncovenant, provision or clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original form and\nshall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable under applicable law. The parties agree\nthat any court interpreting the provisions of this Agreement shall have the authority, if necessary, to reform any such provision to make it enforceable\nunder applicable law.\n11. Remedies. Employee acknowledges that a breach or threatened breach by Employee of this Agreement will give rise to irreparable injury\nto Company and that money damages will not be adequate relief for such injury. Accordingly, Employee agrees that Company shall be entitled to\nobtain injunctive relief, including, but not limited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without\nhaving to post any bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal remedies which may\nbe available. In addition to all other relief to which it shall be entitled, Company shall be entitled to cease all payments to which Employee would\notherwise be entitled under Section 9 hereto; continue to enforce this Agreement; recover from Employee all payments made under Section 9 to the\nextent attributable to a time during which Employee was in violation of the covenants for which payment was made; and recover from Employee all\nlitigation costs and attorneys’ fees incurred by Company in any action or proceeding relating to this Agreement in which Company prevails in any\nrespect, including, but not limited to, any action or proceeding in which Company seeks enforcement of this Agreement or seeks relief from\nEmployee’s violation of this Agreement.\n12. Survival of Obligations. Employee acknowledges and agrees that Employee’s obligations under this Agreement, including, without\nlimitation, Employee’s non-disclosure and non-competition obligations, shall survive the termination of Employee’s employment with Company,\nwhether such termination is with or without cause and whether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this\nAgreement alters the at-will nature of Employee’s employment and that either Company or Employee may terminate the employment relationship at\nany time, with or without cause or notice. Employee further acknowledges and agrees that: (a) Employee’s non-disclosure, non-disparagement, non-\nsolicitation and non-competition covenants set forth in Sections 2 and 7 of this Agreement shall be construed as independent covenants and that no\nbreach of any contractual or legal duty by Company shall be held sufficient to excuse or terminate Employee’s obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee’s violation or threatened violation of such covenants, and (b) the existence of any\nclaim or cause of action by Employee against Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to\nCompany’s enforcement of Employee’s obligations under Sections 2 and 7 of this Agreement.\n13. Governing Law and Choice of Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of\nIndiana, notwithstanding any state’s choice-of-law rules to the contrary. The parties agree that any legal action relating to this Agreement shall be\ncommenced and maintained exclusively before any appropriate state court located in Kosciusko County or the United States District Court for the\nNorthern District of Indiana, South Bend Division. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or\notherwise object to personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside, the English\nversion shall govern.\n-7-\n14. Successors and Assigns. Company shall have the right to assign this Agreement, and, accordingly, this Agreement shall inure to the\nbenefit of, and may be enforced by, any and all successors and assigns of Company, including without limitation by asset assignment, stock sale,\nmerger, consolidation or other corporate reorganization, and shall be binding on Employee. The services to be provided by Employee to Company\nare personal to Employee, and Employee shall not have the right to assign Employee’s duties under this Agreement.\n15. Modification. This Agreement may not be amended, supplemented, or modified except by a written document signed by both Employee\nand a duly authorized officer of Company.\n16. No Waiver. The failure of Company to insist in any one or more instances upon performance of any provision of this Agreement or to\npursue its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights.\n17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which when taken\ntogether will constitute one and the same agreement.\n18. Entire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the parties with respect to the subjects\nspecifically addressed herein, and supersedes any prior agreements, understandings, or representations, oral or written, on the subjects addressed\nherein. Notwithstanding the foregoing, to the extent the employee has an existing non-competition, confidentiality, and/or non-solicitation agreement\nin favor of Company and has breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant to\nsuch existing agreement.\nEmployee’s signature below indicates that Employee has read the entire Agreement, understands what Employee is signing, and is signing the\nAgreement voluntarily. Employee agrees that Company advised Employee to consult with an attorney prior to signing the Agreement.\n“EMPLOYEE”\n(Employee Signature)\nPrinted Name:\nDate:\n“COMPANY”\nBy:\nPrinted Name:\nTitle:\nDate:\n-8-	EX-10.2 3 d403161dex102.htm EX-10.2\nExhibit 10.2\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement (“Agreement”) is made by and between Zimmer,\nInc., a corporation having its principal headquarters in Warsaw, Indiana, and (“Employee”).\nRecitals\nA. For purposes of this Agreement, the term “Company” means Zimmer, Inc. and/or any or each of its affiliates, parents, or direct or\nindirect subsidiaries, as well as any successor-in-interest to Zimmer, Inc. and/or to any of its direct or indirect subsidiaries, affiliates, or parents.\nB. Employee is employed or has been offered employment by Company in an executive and/or high-level managerial capacity in which\nEmployee will have extensive access to trade secrets and confidential information of Company.\nC. Company has offered Employee the grant of certain equity-based awards under an equity incentive plan or program of the Company,\ncontingent upon Employee’s entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, Company and Employee agree to be legally bound as follows:\n1. Acknowledgements. Employee acknowledges that Company is engaged in the highly competitive business of the development,\nmanufacture, distribution, and sale of orthopaedic medical, oral rehabilitation, spine and/or trauma devices, products, processes and services, among\nother products and services, and that Employee serves in an executive and/or high-level managerial capacity for Company and in that capacity\nEmployee has and/or will have access to and will gain knowledge of substantial trade secrets and confidential information of Company.\n \n2. Non-Disclosure and Ownership of Confidential Information. Employee acknowledges that Confidential Information is a valuable,\nspecial, and unique asset of Company, and solely the property of Company, and agrees to the following:\n(a) Confidential Information Defined. The term “Confidential Information” includes, but is not limited to, any and all of Company’s trade\nsecrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other\nthird parties who could derive economic value from its use or disclosure. Confidential Information includes, without limitation, confidential business\nmethods and processes, research and development information, business plans and strategies, marketing plans and strategies, information pertaining\nto current and prospective customers, information pertaining to distributors, pricing information, costing information, non-public financial\ninformation, personnel information, and information about current and prospective products or services, whether or not reduced to writing or other\ntangible medium of expression, including work product created by Employee in rendering services for Company.\n(b) Non-Disclosure of Confidential Information. During Employee’s employment with Company and thereafter, Employee will not disclose,\ntransfer, or use (or seek to induce others to disclose,\ntransfer, or use) any Confidential Information for any purpose other than i) disclosure to authorized employees and agents of Company who are\nbound to maintain the confidentiality of the Confidential Information; and/or ii) for authorized purposes during the course of Employee’s\nemployment in furtherance of Company’s business. Employee’s non-disclosure obligations shall continue as long as the Confidential Information\nremains confidential and shall not apply to information that becomes generally known to the public through no fault or action of Employee.\n(c) Protection of Confidential Information. Employee will notify Company in writing of any circumstances which may constitute unauthorized\ndisclosure, transfer, or use of Confidential Information. Employee will use Employee’s best efforts to protect Confidential Information from\nunauthorized disclosure, transfer, or use. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized\ndisclosure, transfer, or use of Confidential Information.\n3. Ownership of Intellectual Property.\n(a) Invention Defined. The term “Invention” includes, but is not limited to ideas, programs, processes, systems, intellectual property, works of\nauthorship, copyrightable materials, discoveries, and/or improvements which Employee discovers, invents, originates, develops, makes, authors, or\nconceives alone or in conjunction with others during Employee’s employment with Company and/or within six (6) months after Employee’s\nemployment ends which relate to Company’s present or future business. An Invention is covered by this Agreement regardless of whether i)\nEmployee conceived of the Invention in the scope of Employee’s employment; ii) the Invention is patentable; or iii) Company takes any action to\ncommercialize or develop the Invention.\n(b) Ownership of Inventions. Inventions are solely the property of Company. Employee agrees that by operation of law and/or the effect of this\nAgreement Employee does not have any rights, title, or interest in any Inventions. Notwithstanding, Employee may be recognized as the inventor of\nan Invention without retaining any other rights associated therewith.\n(c) Disclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title and interest Employee may have in any\nInventions that are discovered, invented, originated, developed, made, authored, or conceived by Employee (whether alone or with others) during\nEmployee’s employment with Company and/or within six (6) months after Employee’s employment ends which relate to Company’s present or\nfuture business. Employee agrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute such documents and do\nsuch other acts as may be necessary in the opinion of Company to establish and preserve Company’s property rights in all such Inventions. This\nsection shall not apply to any Invention for which no equipment, supplies, facility or trade secret information of Company was used and which was\ndeveloped entirely on Employee’s own time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company’s actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee for Company.\n(d) Works of Authorship. All written, graphic or recorded material and all other works of authorship fixed in a tangible medium of expression\nmade or created by Employee, solely or jointly with others, during Employee’s employment with Company and relating to Company’s business,\nactual or contemplated, shall be the exclusive property of Company (collectively “Works”). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction of Company, is\ncopyrightable, such Work will be a “work made for hire,” as that term is defined in the copyright laws of the United States. If, for any reason, any\ncopyrightable Works created by Employee are excluded from that definition, Employee hereby assigns and conveys to Company all right, title and\ninterest (including any copyright and renewals) in such Works.\n-\n(e) Attribution and Use of Works and Inventions; Waiver of Assertion of “Moral” Rights in Inventions and Works. Employee agrees that\nCompany and its licensees are not required to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any “moral” rights in any Inventions and Works. Employee agrees that Company and\nits licensees shall have sole discretion with regard to how and for what purposes any Inventions or Works are used or distributed.\nother documents and take all other actions reasonably required by Company, at Company’s expense, to perfect and enforce any of its proprietary\nrights. In the event Company is unable, for any reason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to\napply for, prosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration, or other filing to\nprotect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its duly authorized officers and agents as\nEmployee’s agent and attorney in fact, to act for and on Employee’s behalf, to execute and file any such application, registration or other filing, and\nto do all other lawfully permitted acts to further the prosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or\nregistrations for trademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\nEmployee shall return to Company all of Company’s property relating to Company’s business, including without limitation all of Company’s\nproperty which is in the possession, custody, or control of Employee such as Confidential Information, documents, hard copy files, copies of\ndocuments and electronic information/files.\n5. Obligations to Other Entities or Persons. Employee warrants that Employee is not bound by the terms of a confidentiality agreement or\nany other legal obligation which would either preclude or limit Employee from disclosing or using any of Employee’s ideas, inventions, discoveries\nor other information or otherwise fulfilling Employee’s obligations to Company. While employed by Company, Employee shall not disclose or use\nany confidential information belonging to another entity or other person.\n6. Conflict of Interest and Duty of Loyalty. During Employee’s employment with Company, Employee shall not engage, directly or\nindirectly, in any activity, employment or business venture, whether or not for remuneration, that i) is competitive with Company’s business;\nii) deprives or potentially could deprive Company of any business opportunity; iii) conflicts or potentially could conflict with Company’s business\ninterests; or iv) is otherwise detrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n7. Restrictive Covenants. Employee agrees to, and covenants to comply with, each of the following separate and divisible restrictions:\n(a) Definitions.\n(1) “Competing Product” is defined as any product, process or service that is similar to (or would serve as a substitute for) and competitive\nwith any product, process or service that Company is researching, developing, manufacturing, distributing, selling and/or providing at the time of\nEmployee’s termination of employment with Company.\n_3-\n(2) “Competing Organization” is defined as any organization that researches, develops, manufactures, markets, distributes and/or sells one or\nmore Competing Products. A Competing Organization is diversified if it operates multiple, independently operating business divisions, units, lines or\nsegments some of which do not research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3) “Prohibited Capacity” is defined as (a) any same or similar capacity to that held by Employee at any time during Employee’s last two\n(2) years of employment with Company; (b) any executive or managerial capacity; or (c) any capacity in which Employee’s knowledge of\nConfidential Information and/or Inventions would render Employee’s assistance a competitive advantage to the Competing Organization.\n(4) “Restricted Geographic Area” is defined as all countries, territories, and states in which Company is doing business or is selling its\nproducts at the time of termination of Employee’s employment with Company. Employee acknowledges that this geographic scope is reasonable\ngiven Employee’s position with Company, the international scope of Company’s business; and the fact that Employee could compete with Company\nfrom anywhere Company does business.\n(5) “Restricted Period” is defined as the date Employee executes this Agreement, continuing through the eighteen (18) months after the\nEmployee’s last day of employment with Company unless otherwise extended by Employee’s breach of this Agreement. The running time on the\nRestricted Period shall be suspended during any period in which Employee is in violation of any of the restrictive covenants set forth herein, and all\nrestrictions shall automatically be extended by the period Employee was in violation of any such restrictions.\n(6) “Customer” is defined as any person or entity with respect to whom, as of the date of Employee’s separation from Company employment\nor at any time during the two years prior to such separation, Company sold or provided any products and/or services.\n(7) “Active Prospect” is defined as any person or entity that Company individually and specifically marketed to and/or held discussions with\nregarding the distribution and/or sale of any of Company’s products, processes or services at any time during the last six (6) months of Employee’s\nemployment with Company.\n(b) Restrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of the following independent and divisible\nrestrictions:\n(1) Covenant Not to Compete.\n(A) Employee will not, within the Restricted Geographic Area, be employed by, work for, consult with, provide services to, or lend assistance to any\nCompeting Organization in a Prohibited Capacity.\n(B) Employee may be employed by, work for, consult with, provide services to, or lend assistance to a Competing Organization provided that: i) the\nCompeting Organization’s business is diversified; ii) the part of the Competing Organization’s business with which Employee will be affiliated\nwould not, evaluated on a stand-alone basis, be a Competing Organization; iii) Employee’s affiliation with the Competing Organization does not\ninvolve any Competing Products; iv) Employee provides Company a written description of Employee’s anticipated activities on behalf of the\nCompeting Organization which includes, without limitation, an assurance satisfactory to Company that Employee’s affiliation with the Competing\nOrganization does not constitute a Prohibited Capacity; and v) Employee’s affiliation with the Competing Organization does not constitute a\ncompetitive disadvantage to Company.\n4-\n(2) Covenant Not to Solicit Customers or Active Prospects. Employee will not i) provide, sell, or market; ii) assist in the provision, selling or\nmarketing of; or iii) attempt to provide, sell or market any Competing Products to any of Company’s Customers or Active Prospects located in the\nRestricted Geographic Area.\n(3) Covenant Not to Interfere with Business Relationships. Employee will not, within the Restricted Geographic Area, urge, induce or seek to\ninduce any of Company’s independent contractors, subcontractors, distributors, brokers, consultants, sales representatives, customers, vendors,\nsuppliers or any other person or entity with whom Company has a business relationship at the time of Employee’s separation from Company\nemployment to terminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any manner modify\nany such person’s or entity’s business with, or representation of, Company.\nor advise any other person or entity to employ or solicit for employment, any individual employed by Company at the time of Employee’s separation\nfrom Company employment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with Company to\nwork for, consult with, provide services to, or lend assistance to any Competing Organization.\nCompany’s products, processes, or services; or about Company’s past, present and future officers, directors, employees, attorneys and agents.\nDisparaging or derogatory statements include, but are not limited to, negative statements regarding Company’s business or other practices; provided,\nhowever, nothing herein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8. Reasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement restrict Employee\nfrom engaging in activities for a competitive purpose and are reasonably necessary to protect Company’s legitimate interests in Confidential\nInformation, Inventions, and goodwill. Additionally, Employee acknowledges and agrees that the restrictive covenants are reasonable in all respects,\nincluding, but not limited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and agrees that\nthe restrictive covenants set forth in this Agreement will not pose any hardship on Employee and that Employee will reasonably be able to earn an\nequivalent livelihood without violating any provision of this Agreement.\n9. Non-Competition Period Payments. To the extent Employee is denied a specific employment position that would otherwise be offered to\nEmployee by a Competing Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement, and provided\nEmployee satisfies all conditions stated herein, then upon expiration of the period of time represented by any severance benefits Employee was\noffered, Company will make payments to Employee equal to Employee’s monthly base pay at the time of Employee’s separation from Company\nemployment (exclusive of bonus and other extra compensation and any other employee benefits) for each month of such unemployment through the\nend of the Restricted Period.\n(a) Expiration of Severance Benefits. Severance benefits shall be deemed to have expired at the conclusion of the period of time represented by\nthe total amount of any severance benefits offered to\n_5-\nEmployee (even if such offered severance benefits are not actually paid as a result of action or inaction on the part of Employee), including but not\nlimited to basic severance benefits, supplemental severance benefits and severance benefits payable pursuant to a change in control severance\nagreement to which Employee is a party.\nCompany detailed written documentation supporting eligibility for payment, including, at a minimum, (a) the name and location of the Competing\nOrganization that would have employed Employee but for the provisions of Section 7 of this Agreement, (b) the title, nature, and detailed job\nresponsibilities of the employment position with the Competing Organization that Employee was denied, (c) the date Employee was denied the\nemployment position, and (d) the name and contact information of a managerial employee at the Competing Organization who has sufficient\nauthority to confirm that Employee was denied this specific employment position with the Competing Organization solely because Employee is\nsubject to the provisions of Section 7 of this Agreement (the “eligibility documentation™). Upon receipt of the eligibility documentation, Company\nwill determine eligibility for payment and, if eligibility is established, payments will commence as of the date of Company’s receipt of the eligibility\ndocumentation.\nis obligated to diligently seek and pursue replacement employment that does not violate Section 7 of this Agreement (“replacement employment”)\nduring any period in which Employee seeks and/or accepts payment from Company under this Section 9. After eligibility for non-competition period\npayments is established, Employee will, on or before the 15t day of each month of eligibility for continued payments, submit to Company a written\nstatement (i) identifying by name and address all prospective employers with whom Employee has applied or inquired about employment;\n(ii) identifying positions sought with each listed employer and specific actions taken in seeking each position; (iii) describing all other efforts made\nto obtain replacement employment; and (iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the reason(s) for declining if the\noffer was declined.\nCompeting Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement but obtains replacement employment,\nand the monthly compensation (including base pay, commissions, incentive compensation, bonuses and other compensation) for the replacement\nemployment is less than Employee’s monthly base pay at the time of Employee’s separation from employment with Company, Company agrees to\npay Employee the difference for each such month through the end of the Restricted Period, again upon expiration of any severance benefits which\nEmployee was offered and provided Employee satisfies all conditions stated herein. Employee shall submit to Company payroll records (as well as\nany other records reasonably requested by Company) showing all compensation received by Employee from the replacement employment as a\ncondition of Company’s payment of Non-Competition Period Payments covering any period of time when Employee is working in replacement\nemployment.\n(e) Company’s Right To Provide Release of Obligations in Lieu of Non-Competition Period Payments. Notwithstanding any of the foregoing\nprovisions of this Section 9, Company reserves the right to release Employee from Employee’s obligations under Section 7 of this Agreement at any\ntime during the Restricted Period, in full or in sufficient part to allow Employee to accept employment that would otherwise be prohibited under this\nAgreement, at which time Company’s payment obligations under this Section 9 shall cease immediately and Employee shall not be entitled to any\nfurther such payments or compensation.\n-6-\n10. Severability, Modification of Restrictions: The covenants and restrictions in this Agreement are separate and divisible, and to the extent\nany clause, portion or section of this Agreement is determined to be unenforceable or invalid for any reason, Company and Employee acknowledge\nand agree that such unenforceability or invalidity shall not affect the enforceability or validity of the remainder of the Agreement. If any particular\ncovenant, provision or clause of this Agreement is determined to be unreasonable or unenforceable for any reason, including, without limitation,\ntemporal duration, scope of prohibited activity, and/or scope of geographic area, Company and Employee acknowledge and agree that such\ncovenant, provision or clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original form and\nshall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable under applicable law. The parties agree\nthat any court interpreting the provisions of this Agreement shall have the authority, if necessary, to reform any such provision to make it enforceable\nunder applicable law.\n11. Remedies. Employee acknowledges that a breach or threatened breach by Employee of this Agreement will give rise to irreparable injury\nto Company and that money damages will not be adequate relief for such injury. Accordingly, Employee agrees that Company shall be entitled to\nobtain injunctive relief, including, but not limited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without\nhaving to post any bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal remedies which may\nbe available. In addition to all other relief to which it shall be entitled, Company shall be entitled to cease all payments to which Employee would\notherwise be entitled under Section 9 hereto; continue to enforce this Agreement; recover from Employee all payments made under Section 9 to the\nextent attributable to a time during which Employee was in violation of the covenants for which payment was made; and recover from Employee all\nlitigation costs and attorneys’ fees incurred by Company in any action or proceeding relating to this Agreement in which Company prevails in any\nrespect, including, but not limited to, any action or proceeding in which Company seeks enforcement of this Agreement or seeks relief from\nEmployee’s violation of this Agreement.\n12. Survival of Obligations. Employee acknowledges and agrees that Employee’s obligations under this Agreement, including, without\nlimitation, Employee’s non-disclosure and non-competition obligations, shall survive the termination of Employee’s employment with Company,\nwhether such termination is with or without cause and whether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this\nAgreement alters the at-will nature of Employee’s employment and that either Company or Employee may terminate the employment relationship at\nany time, with or without cause or notice. Employee further acknowledges and agrees that: (a) Employee’s non-disclosure, non-disparagement, non-\nsolicitation and non-competition covenants set forth in Sections 2 and 7 of this Agreement shall be construed as independent covenants and that no\nbreach of any contractual or legal duty by Company shall be held sufficient to excuse or terminate Employee’s obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee’s violation or threatened violation of such covenants, and (b) the existence of any\nclaim or cause of action by Employee against Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to\nCompany’s enforcement of Employee’s obligations under Sections 2 and 7 of this Agreement.\n \n13. Governing Law and Choice of Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of\nIndiana, notwithstanding any state’s choice-of-law rules to the contrary. The parties agree that any legal action relating to this Agreement shall be\ncommenced and maintained exclusively before any appropriate state court located in Kosciusko County or the United States District Court for the\nNorthern District of Indiana, South Bend Division. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or\notherwise object to personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside, the English\nversion shall govern.\n_7-\n14. Successors and Assigns. Company shall have the right to assign this Agreement, and, accordingly, this Agreement shall inure to the\nbenefit of, and may be enforced by, any and all successors and assigns of Company, including without limitation by asset assignment, stock sale,\nmerger, consolidation or other corporate reorganization, and shall be binding on Employee. The services to be provided by Employee to Company\nare personal to Employee, and Employee shall not have the right to assign Employee’s duties under this Agreement.\n15. Modification. This Agreement may not be amended, supplemented, or modified except by a written document signed by both Employee\nand a duly authorized officer of Company.\n16. No Waiver. The failure of Company to insist in any one or more instances upon performance of any provision of this Agreement or to\npursue its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights.\n17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which when taken\ntogether will constitute one and the same agreement.\n18. Entire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the parties with respect to the subjects\nspecifically addressed herein, and supersedes any prior agreements, understandings, or representations, oral or written, on the subjects addressed\nherein. Notwithstanding the foregoing, to the extent the employee has an existing non-competition, confidentiality, and/or non-solicitation agreement\nin favor of Company and has breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant to\nsuch existing agreement.\nEmployee’s signature below indicates that Employee has read the entire Agreement, understands what Employee is signing, and is signing the\nAgreement voluntarily. Employee agrees that Company advised Employee to consult with an attorney prior to signing the Agreement.\n“EMPLOYEE”\n(Employee Signature)\nPrinted Name:\nDate:\n“COMPANY”\nBy:\nPrinted Name:\nTitle:\nDate:	EX-10.2 3 d403161dex102.htm EX-10.2\nExhibit 10.2\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement ("Agreement") is made by and between Zimmer,\nInc., a corporation having its principal headquarters in Warsaw, Indiana, and\n("Employee").\nRecitals\nA. For purposes of this Agreement, the term "Company" means Zimmer, Inc. and/or any or each of its affiliates, parents, or direct or\nindirect subsidiaries, as well as any successor-in-interest to Zimmer, Inc. and/or to any of its direct or indirect subsidiaries, affiliates, or parents.\nB. Employee is employed or has been offered employment by Company in an executive and/or high-level managerial capacity in which\nEmployee will have extensive access to trade secrets and confidential information of Company.\nC. Company has offered Employee the grant of certain equity-based awards under an equity incentive plan or program of the Company,\ncontingent upon Employee's entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, Company and Employee agree to be legally bound as follows:\n1. Acknowledgements Employee acknowledges that Company is engaged in the highly competitive business of the development,\nmanufacture, distribution, and sale of orthopaedic medical, oral rehabilitation, spine and/or trauma devices, products, processes and services, among\nother products and services, and that Employee serves in an executive and/or high-level managerial capacity for Company and in that capacity\nEmployee has and/or will have access to and will gain knowledge of substantial trade secrets and confidential information of Company.\n2. Non-Disclosure and Ownership of Confidential Information. Employee acknowledges that Confidential Information is a valuable,\nspecial, and unique asset of Company, and solely the property of Company, and agrees to the following:\n(a) Confidentia Information Defined. The term "Confidential Information" includes, but is not limited to, any and all of Company's trade\nsecrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other\nthird\nparties\nwho\ncould derive economic value from its use or disclosure. Confidential Information includes, without limitation, confidential business\nmethods and processes, research and development information, business plans and strategies, marketing plans and strategies, information pertaining\nto current and prospective customers, information pertaining to distributors, pricing information, costing information, non-public financial\ninformation, personnel information, and information about current and prospective products or services, whether or not reduced to writing or other\ntangible medium of expression, including work product created by Employee in rendering services for Company.\n(b) Non-Disclosure of Confidential Information. During Employee's employment with Company and thereafter, Employee will not disclose,\ntransfer, or use (or seek to induce others to disclose,\ntransfer, or use) any Confidential Information for any purpose other than i) disclosure to authorized employees and agents of Company who are\nbound to maintain the confidentiality of the Confidential Information; and/or ii) for authorized purposes during the course of Employee's\nemployment in furtherance of Company's business. Employee's non-disclosure obligations shall continue as long as the Confidential Information\nremains confidential and shall not apply to information that becomes generally known to the public through no fault or action of Employee.\n(c) Protection of Confidential Information. Employee will notify Company in writing of any circumstances which may constitute unauthorized\ndisclosure, transfer, or use of Confidential Information. Employee will use Employee's best efforts to protect Confidential Information from\nunauthorized disclosure, transfer, or use. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized\ndisclosure, transfer, or use of Confidential Information.\n3. Ownership of Intellectual Property.\n(a) Invention Defined. The term "Invention" includes, but is not limited to ideas, programs, processes, systems, intellectual property, works of\nauthorship, copyrightable materials, discoveries, and/or improvements which Employee discovers, invents, originates, develops, makes, authors,\nor\nconceives alone or in conjunction with others during Employee's employment with Company and/or within six (6) months after Employee's\nemployment ends which relate to Company's present or future business. An Invention is covered by this Agreement regardless of whether i)\nEmployee conceived of the Invention in the scope of Employee's employment; ii) the Invention is patentable; or iii) Company takes any action to\ncommercialize or develop the Invention.\n(b) Ownership of Inventions. Inventions are solely the property of Company. Employee agrees that by operation of law and/or the effect of this\nAgreement Employee does not have any rights, title, or interest in any Inventions. Notwithstanding, Employee may be recognized as the inventor of\nan Invention without retaining any other rights associated therewith.\n(c) Disclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title and interest Employee may have in any\nInventions that are discovered, invented, originated, developed, made, authored, or conceived by Employee (whether alone or with others) during\nEmployee's employment with Company and/or within six (6) months after Employee's employment ends which relate to Company's present or\nfuture business. Employee agrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute such documents and do\nsuch other acts as may be necessary in the opinion of Company to establish and preserve Company's property rights in all such Inventions. This\nsection shall not apply to any Invention for which no equipment, supplies, facility or trade secret information of Company was used and which was\ndeveloped entirely on Employee's own time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company's actual\nor\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee for Company.\n(d) Works of Authorship. All written, graphic or recorded material and all other works of authorship fixed in a tangible medium of expression\nmade or created by Employee, solely or jointly with others, during Employee's employment with Company and relating to Company's business,\nactual or contemplated, shall be the exclusive property of Company (collectively "Works"). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction of Company, is\ncopyrightable, such Work will be a "work made for hire," as that term is defined in the copyright laws of the United States. If, for any reason, any\ncopyrightable Works created by Employee are excluded from that definition, Employee hereby assigns and conveys to Company all right, title and\ninterest (including any copyright and renewals) in such Works.\n-2-\n(e) Attribution and Use of Works and Inventions; Waiver of Assertion of "Moral" Rights in Inventions and Works. Employee agrees that\nCompany and its licensees are not required to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any "moral" rights in any Inventions and Works. Employee agrees that Company and\nits licensees shall have sole discretion with regard to how and for what purposes any Inventions or Works are used or distributed.\n(f)\nEmployee Cooperation in Establishment of Company Proprietary Rights. Employee will sign documents of assignment, declarations and\nother documents and take all other actions reasonably required by Company, at Company's expense, to perfect and enforce any of its proprietary\nrights. In the event Company is unable, for any reason whatsoever, to secure Employee's signature to any lawful or necessary documents required to\napply for, prosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration, or other filing\nto\nprotect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its duly authorized officers and agents as\nEmployee's agent and attorney in fact, to act for and on Employee's behalf, to execute and file any such application, registration or other filing, and\nto do all other lawfully permitted acts to further the prosecution, issuance or assignment of Letters Patent or other protections on such Inventions,\nor\nregistrations for trademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4. Return of Confidential Information and Company Property.. Immediately upon termination of Employee's employment with Company,\nEmployee shall return to Company all of Company's property relating to Company's business, including without limitation all of Company's\nproperty which is in the possession, custody, or control of Employee such as Confidential Information, documents, hard copy files, copies of\ndocuments and electronic information/files.\n5. Obligations to Other Entities or Persons. Employee warrants that Employee is not bound by the terms of a confidentiality agreement or\nany\nother\nlegal\nobligation\nwhich\nwould\neither\npreclude\nor\nlimit\nEmployee\nfrom\ndisclosing\nor\nusing\nany\nof\nEmployee's\nideas,\ninventions,\ndiscoveries\nor other information or otherwise fulfilling Employee's obligations to Company. While employed by Company, Employee shall not disclose or use\nany confidential information belonging to another entity or other person.\n6. Conflict of Interest and Duty. of Loyalty. During Employee's employment with Company, Employee shall not engage, directly or\nindirectly, in any activity, employment or business venture, whether or not for remuneration, that i) is competitive with Company's business;\nii)\ndeprives or potentially could deprive Company of any business opportunity; iii) conflicts or potentially could conflict with\nCompany's\nbusiness\ninterests; or iv) is otherwise detrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n7. Restrictive Covenants. Employee agrees to, and covenants to comply with, each of the following separate and divisible restrictions:\n(a) Definitions.\n(1) "Competing Product" is defined as any product, process or service that is similar to (or would serve as a substitute for) and competitive\nwith any product, process or service that Company is researching, developing, manufacturing, distributing, selling and/or providing at the time of\nEmployee's termination of employment with Company.\n-3-\n(2) "Competing Organization" is defined as any organization that researches, develops, manufactures, markets, distributes and/or sells one or\nmore Competing Products. A Competing Organization is diversified if it operates multiple, independently operating business divisions, units, lines or\nsegments some of which do not research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3) "Prohibited Capacity" is defined as (a) any same or similar capacity to that held by Employee at any time during Employee's last two\n(2)\nyears of employment with Company; (b) any executive or managerial capacity; or (c) any capacity in which Employee's knowledge\nof\nConfidential Information and/or Inventions would render Employee's assistance a competitive advantage to the Competing Organization.\n(4) "Restricted Geographic Area" is defined as all countries, territories, and states in which Company is doing business or is selling its\nproducts at the time of termination of Employee's employment with Company. Employee acknowledges that this geographic scope is reasonable\ngiven Employee's position with Company, the international scope of Company's business; and the fact that Employee could compete with Company\nfrom anywhere Company does business.\n(5) "Restricted Period" is defined as the date Employee executes this Agreement, continuing through the eighteen (18) months after the\nEmployee's last day of employment with Company unless otherwise extended by Employee's breach of this Agreement. The running time on the\nRestricted Period shall be suspended during any period in which Employee is in violation of any of the restrictive covenants set forth herein, and all\nrestrictions shall automatically be extended by the period Employee was in violation of any such restrictions.\n(6) "Customer" is defined as any person or entity with respect to whom, as of the date of Employee's separation from Company employment\nor at any time during the two years prior to such separation, Company sold or provided any products and/or services.\n(7) "Active Prospect" is defined as any person or entity that Company individually and specifically marketed to and/or held discussions with\nregarding the distribution and/or sale of any of Company's products, processes or services at any time during the last six (6) months of Employee's\nemployment with Company.\n(b) Restrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of the following independent and divisible\nrestrictions:\n(1) Covenant Not to Compete.\n(A) Employee will not, within the Restricted Geographic Area, be employed by, work for, consult with, provide services to, or lend assistance to any\nCompeting Organization in a Prohibited Capacity.\n(B) Employee may be employed by, work for, consult with, provide services to, or lend assistance to a Competing Organization provided that: i) the\nCompeting Organization's business is diversified; ii) the part of the Competing Organization's business with which Employee will be affiliated\nwould not, evaluated on a stand-alone basis, be a Competing Organization; iii) Employee's affiliation with the Competing Organization does not\ninvolve any Competing Products; iv) Employee provides Company a written description of Employee's anticipated activities on behalf of the\nCompeting Organization which includes, without limitation, an assurance satisfactory to Company that Employee's affiliation with the Competing\nOrganization does not constitute a Prohibited Capacity; and v) Employee's affiliation with the Competing Organization does not constitute a\ncompetitive disadvantage to Company.\n-4-\n(2) Covenant Not to Solicit Customers or Active Prospects. Employee will not i) provide, sell, or market; ii) assist in the provision, selling\nor\nmarketing of; or iii) attempt to provide, sell or market any Competing Products to any of Company's Customers or Active Prospects located in the\nRestricted Geographic Area.\n(3) Covenant Not to Interfere with Business Relationships. Employee will not, within the Restricted Geographic Area, urge, induce or seek to\ninduce any of Company's independent contractors, subcontractors, distributors, brokers, consultants, sales representatives, customers, vendors,\nsuppliers or any other person or entity with whom Company has a business relationship at the time of Employee's separation from Company\nemployment to terminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any manner modify\nany such person's or entity's business with, or representation of, Company.\n(4) Covenant Not to Solicit Company Employees. Employee will not, within the Restricted Geographic Area, employ, solicit for employment,\nor\nadvise\nany\nother\nperson\nor\nentity\nto\nemploy\nor\nsolicit\nfor\nemployment,\nany\nindividual\nemployed\nby\nCompany\nat\nthe\ntime\nof\nEmployee's\nseparation\nfrom Company employment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with Company to\nwork for, consult with, provide services to, or lend assistance to any Competing Organization.\n(5) Covenant Not to Disparage Company.. Employee will not make or publish any disparaging or derogatory statements about Company; about\nCompany's products, processes, or services; or about Company's past, present and future officers, directors, employees, attorneys and agents.\nDisparaging or derogatory statements include, but are not limited to, negative statements regarding Company's business or other practices; provided,\nhowever, nothing herein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8. Reasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement restrict Employee\nfrom engaging in activities for a competitive purpose and are reasonably necessary to protect Company's legitimate interests in Confidential\nInformation, Inventions, and goodwill. Additionally, Employee acknowledges and agrees that the restrictive covenants are reasonable in all respects,\nincluding, but not limited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and agrees that\nthe restrictive covenants set forth in this Agreement will not pose any hardship on Employee and that Employee will reasonably be able to earn\nan\nequivalent livelihood without violating any provision of this Agreement.\n9. Non-Competition Period Payments. To the extent Employee is denied a specific employment position that would otherwise be offered\nto\nEmployee by a Competing Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement, and provided\nEmployee satisfies all conditions stated herein, then upon expiration of the period of time represented by any severance benefits Employee was\noffered, Company will make payments to Employee equal to Employee's monthly base pay at the time of Employee's separation from Company\nemployment (exclusive of bonus and other extra compensation and any other employee benefits) for each month of such unemployment through the\nend of the Restricted Period.\n(a) Expiration of Severance Benefits. Severance benefits shall be deemed to have expired at the conclusion of the period of time represented by\nthe total amount of any severance benefits offered to\n-5-\nEmployee (even if such offered severance benefits are not actually paid as a result of action or inaction on the part of Employee), including but\nnot\nlimited to basic severance benefits, supplemental severance benefits and severance benefits payable pursuant to a change in control severance\nagreement to which Employee is a party.\n(b) Verification of Eligibility for Non-Competition Period Payments. To qualify for payments under this Section 9, Employee must provide\nCompany detailed written documentation supporting eligibility for payment, including, at a minimum, (a) the name and location of\nthe\nCompeting\nOrganization that would have employed Employee but for the provisions of Section 7 of this Agreement, (b) the title, nature, and detailed job\nresponsibilities of the employment position with the Competing Organization that Employee was denied, (c) the date Employee was denied the\nemployment position, and (d) the name and contact information of a managerial employee at the Competing Organization who has sufficient\nauthority to confirm that Employee was denied this specific employment position with the Competing Organization solely because Employee\nis\nsubject to the provisions of Section 7 of this Agreement (the "eligibility documentation"). Upon receipt of the eligibility documentation, Company\nwill determine eligibility for payment and, if eligibility is established, payments will commence as of the date of Company's receipt of the eligibility\ndocumentation.\n(c) Obligation to Pursue Replacement Employment and Verification of Continued Eligibility fon Non-Competition Period Payments. Employee\nis obligated to diligently seek and pursue replacement employment that does not violate Section 7 of this Agreement ("replacement employment")\nduring any period in which Employee seeks and/or accepts payment from Company under this Section 9. After eligibility for non-competition period\npayments is established, Employee will, on or before the 15th day of each month of eligibility for continued payments, submit to Company a written\nstatement (i) identifying by name and address all prospective employers with whom Employee has applied or inquired about employment;\n(ii) identifying positions sought with each listed employer and specific actions taken in seeking each position; (iii) describing all other efforts made\nto obtain replacement employment; and (iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the reason(s) for declining if the\noffer was declined.\n(d) Effect of Replacement Employment on Non-Competition Period Payments. If Employee is denied a specific employment position with\na\nCompeting Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement but obtains replacement employment,\nand the monthly compensation (including base pay, commissions, incentive compensation, bonuses and other compensation) for the replacement\nemployment is less than Employee's monthly base pay at the time of Employee's separation from employment with Company, Company agrees to\npay Employee the difference for each such month through the end of the Restricted Period, again upon expiration of any severance benefits which\nEmployee was offered and provided Employee satisfies all conditions stated herein. Employee shall submit to Company payroll records (as well\nas\nany other records reasonably requested by Company) showing all compensation received by Employee from the replacement employment as a\ncondition of Company's payment of Non-Competition Period Payments covering any period of time when Employee is working in replacement\nemployment.\n(e) Company's Right To Provide Release of Obligations in Lieu of Non-Competition Period Payments. Notwithstanding any of the foregoing\nprovisions of this Section 9, Company reserves the right to release Employee from Employee's obligations under Section 7 of this Agreement at any\ntime during the Restricted Period, in full or in sufficient part to allow Employee to accept employment that would otherwise be prohibited under this\nAgreement, at which time Company's payment obligations under this Section 9 shall cease immediately and Employee shall not be entitled to any\nfurther such payments or compensation.\n-6-\n10. Severability, Modification of Restrictions: The covenants and restrictions in this Agreement are separate and divisible, and to the extent\nany clause, portion or section of this Agreement is determined to be unenforceable or invalid for any reason, Company and Employee acknowledge\nand agree that such unenforceability or invalidity shall not affect the enforceability or validity of the remainder of the Agreement. If any particular\ncovenant, provision or clause of this Agreement is determined to be unreasonable or unenforceable for any reason, including, without limitation,\ntemporal duration, scope of prohibited activity, and/or scope of geographic area, Company and Employee acknowledge and agree that such\ncovenant, provision or clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original form and\nshall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable under applicable law. The parties agree\nthat any court interpreting the provisions of this Agreement shall have the authority, if necessary, to reform any such provision to make it enforceable\nunder applicable law.\n11. Remedies. Employee acknowledges that a breach or threatened breach by Employee of this Agreement will give rise to irreparable injury\nto Company and that money damages will not be adequate relief for such injury. Accordingly, Employee agrees that Company shall be entitled to\nobtain injunctive relief, including, but not limited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without\nhaving to post any bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal remedies which\nmay\nbe available. In addition to all other relief to which it shall be entitled, Company shal be entitled to cease all payments to which Employee would\notherwise be entitled under Section 9 hereto; continue to enforce this Agreement; recover from Employee all payments made under Section 9 to the\nextent attributable to a time during which Employee was in violation of the covenants for which payment was made; and recover from Employee\nall\nlitigation costs and attorneys' fees incurred by Company in any action or proceeding relating to this Agreement in which Company prevails in\nany\nrespect, including, but not limited to, any action or proceeding in which Company seeks enforcement of this Agreement or seeks relief from\nEmployee's violation of this Agreement.\n12. Survival of Obligations. Employee acknowledges and agrees that Employee's obligations under this Agreement, including, without\nlimitation, Employee's non-disclosure and non-competition obligations, shall survive the termination of Employee's employment with Company,\nwhether such termination is with or without cause and whether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this\nAgreement alters the at-will nature of Employee's employment and that either Company or Employee may terminate the employment relationship at\nany time, with or without cause or notice. Employee further acknowledges and agrees that: (a) Employee's non-disclosure, non-disparagement, non-\nsolicitation and non-competition covenants set forth in Sections 2 and 7 of this Agreement shall be construed as independent covenants and that no\nbreach of any contractual or legal duty by Company shall be held sufficient to excuse or terminate Employee's obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee's violation or threatened violation of such covenants, and (b) the existence of any\nclaim or cause of action by Employee against Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to\nCompany's enforcement of Employee's obligations under Sections 2 and 7 of this Agreement.\n13. Governing Law and Choice of Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of\nIndiana, notwithstanding any state's choice-of-law rules to the contrary. The parties agree that any legal action relating to this Agreement shall be\ncommenced and maintained exclusively before any appropriate state court located in Kosciusko County or the United States District Court for the\nNorthern District of Indiana, South Bend Division. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or\notherwise object to personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside, the English\nversion shall govern.\n-7-\n14. Successors and Assigns. Company shall have the right to assign this Agreement, and, accordingly, this Agreement shall inure to the\nbenefit of, and may be enforced by, any and all successors and assigns of Company, including without limitation by asset assignment, stock sale,\nmerger, consolidation or other corporate reorganization, and shall be binding on Employee. The services to be provided by Employee to Company\nare personal to Employee, and Employee shall not have the right to assign Employee's duties under this Agreement.\n15. Modification. This Agreement may not be amended, supplemented, or modified except by a written document signed by both Employee\nand a duly authorized officer of Company.\n16. No Waiver. The failure of Company to insist in any one or more instances upon performance of any provision of this Agreement or to\npursue its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights.\n17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which when taken\ntogether will constitute one and the same agreement.\n18. Entire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the parties with respect to the subjects\nspecifically addressed herein, and supersedes any prior agreements, understandings, or representations, oral or written, on the subjects addressed\nherein. Notwithstanding the foregoing, to the extent the employee has an existing non-competition, confidentiality, and/or non-solicitation agreement\nin\nfavor of Company and has breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant to\nsuch existing agreement.\nEmployee's signature below indicates that Employee has read the entire Agreement, understands what Employee is signing, and is signing the\nAgreement voluntarily. Employee agrees that Company advised Employee to consult with an attorney prior to signing the Agreement.\n"EMPLOYEE"\n(Employee Signature)\nPrinted Name:\nDate:\n"COMPANY"\nBy:\nPrinted Name:\nTitle:\nDate:\n-8-	EX-10.2 3 d403161dex102.htm EX-10.2\nExhibit 10.2\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement (“Agreement”) is made by and between Zimmer,\nInc., a corporation having its principal headquarters in Warsaw, Indiana, and\n(“Employee”).\nRecitals\nA. For purposes of this Agreement, the term “Company” means Zimmer, Inc. and/or any or each of its affiliates, parents, or direct or\nindirect subsidiaries, as well as any successor-in-interest to Zimmer, Inc. and/or to any of its direct or indirect subsidiaries, affiliates, or parents.\nB. Employee is employed or has been offered employment by Company in an executive and/or high-level managerial capacity in which\nEmployee will have extensive access to trade secrets and confidential information of Company.\nC. Company has offered Employee the grant of certain equity-based awards under an equity incentive plan or program of the Company,\ncontingent upon Employee’s entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, Company and Employee agree to be legally bound as follows:\n1. Acknowledgements. Employee acknowledges that Company is engaged in the highly competitive business of the development,\nmanufacture, distribution, and sale of orthopaedic medical, oral rehabilitation, spine and/or trauma devices, products, processes and services, among\nother products and services, and that Employee serves in an executive and/or high-level managerial capacity for Company and in that capacity\nEmployee has and/or will have access to and will gain knowledge of substantial trade secrets and confidential information of Company.\n2. Non-Disclosure and Ownership of Confidential Information. Employee acknowledges that Confidential Information is a valuable,\nspecial, and unique asset of Company, and solely the property of Company, and agrees to the following:\n(a) Confidential Information Defined. The term “Confidential Information” includes, but is not limited to, any and all of Company’s trade\nsecrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other\nthird parties who could derive economic value from its use or disclosure. Confidential Information includes, without limitation, confidential business\nmethods and processes, research and development information, business plans and strategies, marketing plans and strategies, information pertaining\nto current and prospective customers, information pertaining to distributors, pricing information, costing information, non-public financial\ninformation, personnel information, and information about current and prospective products or services, whether or not reduced to writing or other\ntangible medium of expression, including work product created by Employee in rendering services for Company.\n(b) Non-Disclosure of Confidential Information. During Employee’s employment with Company and thereafter, Employee will not disclose,\ntransfer, or use (or seek to induce others to disclose,\ntransfer, or use) any Confidential Information for any purpose other than i) disclosure to authorized employees and agents of Company who are\nbound to maintain the confidentiality of the Confidential Information; and/or ii) for authorized purposes during the course of Employee’s\nemployment in furtherance of Company’s business. Employee’s non-disclosure obligations shall continue as long as the Confidential Information\nremains confidential and shall not apply to information that becomes generally known to the public through no fault or action of Employee.\n(c) Protection of Confidential Information. Employee will notify Company in writing of any circumstances which may constitute unauthorized\ndisclosure, transfer, or use of Confidential Information. Employee will use Employee’s best efforts to protect Confidential Information from\nunauthorized disclosure, transfer, or use. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized\ndisclosure, transfer, or use of Confidential Information.\n3. Ownership of Intellectual Property.\n(a) Invention Defined. The term “Invention” includes, but is not limited to ideas, programs, processes, systems, intellectual property, works of\nauthorship, copyrightable materials, discoveries, and/or improvements which Employee discovers, invents, originates, develops, makes, authors, or\nconceives alone or in conjunction with others during Employee’s employment with Company and/or within six (6) months after Employee’s\nemployment ends which relate to Company’s present or future business. An Invention is covered by this Agreement regardless of whether i)\nEmployee conceived of the Invention in the scope of Employee’s employment; ii) the Invention is patentable; or iii) Company takes any action to\ncommercialize or develop the Invention.\n(b) Ownership of Inventions. Inventions are solely the property of Company. Employee agrees that by operation of law and/or the effect of this\nAgreement Employee does not have any rights, title, or interest in any Inventions. Notwithstanding, Employee may be recognized as the inventor of\nan Invention without retaining any other rights associated therewith.\n(c) Disclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title and interest Employee may have in any\nInventions that are discovered, invented, originated, developed, made, authored, or conceived by Employee (whether alone or with others) during\nEmployee’s employment with Company and/or within six (6) months after Employee’s employment ends which relate to Company’s present or\nfuture business. Employee agrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute such documents and do\nsuch other acts as may be necessary in the opinion of Company to establish and preserve Company’s property rights in all such Inventions. This\nsection shall not apply to any Invention for which no equipment, supplies, facility or trade secret information of Company was used and which was\ndeveloped entirely on Employee’s own time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company’s actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee for Company.\n(d) Works of Authorship. All written, graphic or recorded material and all other works of authorship fixed in a tangible medium of expression\nmade or created by Employee, solely or jointly with others, during Employee’s employment with Company and relating to Company’s business,\nactual or contemplated, shall be the exclusive property of Company (collectively “Works”). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction of Company, is\ncopyrightable, such Work will be a “work made for hire,” as that term is defined in the copyright laws of the United States. If, for any reason, any\ncopyrightable Works created by Employee are excluded from that definition, Employee hereby assigns and conveys to Company all right, title and\ninterest (including any copyright and renewals) in such Works.\n-2-\n(e) Attribution and Use of Works and Inventions; Waiver of Assertion of “Moral” Rights in Inventions and Works. Employee agrees that\nCompany and its licensees are not required to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any “moral” rights in any Inventions and Works. Employee agrees that Company and\nits licensees shall have sole discretion with regard to how and for what purposes any Inventions or Works are used or distributed.\n(f) Employee Cooperation in Establishment of Company Proprietary Rights. Employee will sign documents of assignment, declarations and\nother documents and take all other actions reasonably required by Company, at Company’s expense, to perfect and enforce any of its proprietary\nrights. In the event Company is unable, for any reason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to\napply for, prosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration, or other filing to\nprotect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its duly authorized officers and agents as\nEmployee’s agent and attorney in fact, to act for and on Employee’s behalf, to execute and file any such application, registration or other filing, and\nto do all other lawfully permitted acts to further the prosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or\nregistrations for trademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4. Return of Confidential Information and Company Property. Immediately upon termination of Employee’s employment with Company,\nEmployee shall return to Company all of Company’s property relating to Company’s business, including without limitation all of Company’s\nproperty which is in the possession, custody, or control of Employee such as Confidential Information, documents, hard copy files, copies of\ndocuments and electronic information/files.\n5. Obligations to Other Entities or Persons. Employee warrants that Employee is not bound by the terms of a confidentiality agreement or\nany other legal obligation which would either preclude or limit Employee from disclosing or using any of Employee’s ideas, inventions, discoveries\nor other information or otherwise fulfilling Employee’s obligations to Company. While employed by Company, Employee shall not disclose or use\nany confidential information belonging to another entity or other person.\n6. Conflict of Interest and Duty of Loyalty. During Employee’s employment with Company, Employee shall not engage, directly or\nindirectly, in any activity, employment or business venture, whether or not for remuneration, that i) is competitive with Company’s business;\nii) deprives or potentially could deprive Company of any business opportunity; iii) conflicts or potentially could conflict with Company’s business\ninterests; or iv) is otherwise detrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n7. Restrictive Covenants. Employee agrees to, and covenants to comply with, each of the following separate and divisible restrictions:\n(a) Definitions.\n(1) “Competing Product” is defined as any product, process or service that is similar to (or would serve as a substitute for) and competitive\nwith any product, process or service that Company is researching, developing, manufacturing, distributing, selling and/or providing at the time of\nEmployee’s termination of employment with Company.\n-3-\n(2) “Competing Organization” is defined as any organization that researches, develops, manufactures, markets, distributes and/or sells one or\nmore Competing Products. A Competing Organization is diversified if it operates multiple, independently operating business divisions, units, lines or\nsegments some of which do not research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3) “Prohibited Capacity” is defined as (a) any same or similar capacity to that held by Employee at any time during Employee’s last two\n(2) years of employment with Company; (b) any executive or managerial capacity; or (c) any capacity in which Employee’s knowledge of\nConfidential Information and/or Inventions would render Employee’s assistance a competitive advantage to the Competing Organization.\n(4) “Restricted Geographic Area” is defined as all countries, territories, and states in which Company is doing business or is selling its\nproducts at the time of termination of Employee’s employment with Company. Employee acknowledges that this geographic scope is reasonable\ngiven Employee’s position with Company, the international scope of Company’s business; and the fact that Employee could compete with Company\nfrom anywhere Company does business.\n(5) “Restricted Period” is defined as the date Employee executes this Agreement, continuing through the eighteen (18) months after the\nEmployee’s last day of employment with Company unless otherwise extended by Employee’s breach of this Agreement. The running time on the\nRestricted Period shall be suspended during any period in which Employee is in violation of any of the restrictive covenants set forth herein, and all\nrestrictions shall automatically be extended by the period Employee was in violation of any such restrictions.\n(6) “Customer” is defined as any person or entity with respect to whom, as of the date of Employee’s separation from Company employment\nor at any time during the two years prior to such separation, Company sold or provided any products and/or services.\n(7) “Active Prospect” is defined as any person or entity that Company individually and specifically marketed to and/or held discussions with\nregarding the distribution and/or sale of any of Company’s products, processes or services at any time during the last six (6) months of Employee’s\nemployment with Company.\n(b) Restrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of the following independent and divisible\nrestrictions:\n(1) Covenant Not to Compete.\n(A) Employee will not, within the Restricted Geographic Area, be employed by, work for, consult with, provide services to, or lend assistance to any\nCompeting Organization in a Prohibited Capacity.\n(B) Employee may be employed by, work for, consult with, provide services to, or lend assistance to a Competing Organization provided that: i) the\nCompeting Organization’s business is diversified; ii) the part of the Competing Organization’s business with which Employee will be affiliated\nwould not, evaluated on a stand-alone basis, be a Competing Organization; iii) Employee’s affiliation with the Competing Organization does not\ninvolve any Competing Products; iv) Employee provides Company a written description of Employee’s anticipated activities on behalf of the\nCompeting Organization which includes, without limitation, an assurance satisfactory to Company that Employee’s affiliation with the Competing\nOrganization does not constitute a Prohibited Capacity; and v) Employee’s affiliation with the Competing Organization does not constitute a\ncompetitive disadvantage to Company.\n-4-\n(2) Covenant Not to Solicit Customers or Active Prospects. Employee will not i) provide, sell, or market; ii) assist in the provision, selling or\nmarketing of; or iii) attempt to provide, sell or market any Competing Products to any of Company’s Customers or Active Prospects located in the\nRestricted Geographic Area.\n(3) Covenant Not to Interfere with Business Relationships. Employee will not, within the Restricted Geographic Area, urge, induce or seek to\ninduce any of Company’s independent contractors, subcontractors, distributors, brokers, consultants, sales representatives, customers, vendors,\nsuppliers or any other person or entity with whom Company has a business relationship at the time of Employee’s separation from Company\nemployment to terminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any manner modify\nany such person’s or entity’s business with, or representation of, Company.\n(4) Covenant Not to Solicit Company Employees. Employee will not, within the Restricted Geographic Area, employ, solicit for employment,\nor advise any other person or entity to employ or solicit for employment, any individual employed by Company at the time of Employee’s separation\nfrom Company employment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with Company to\nwork for, consult with, provide services to, or lend assistance to any Competing Organization.\n(5) Covenant Not to Disparage Company. Employee will not make or publish any disparaging or derogatory statements about Company; about\nCompany’s products, processes, or services; or about Company’s past, present and future officers, directors, employees, attorneys and agents.\nDisparaging or derogatory statements include, but are not limited to, negative statements regarding Company’s business or other practices; provided,\nhowever, nothing herein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8. Reasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement restrict Employee\nfrom engaging in activities for a competitive purpose and are reasonably necessary to protect Company’s legitimate interests in Confidential\nInformation, Inventions, and goodwill. Additionally, Employee acknowledges and agrees that the restrictive covenants are reasonable in all respects,\nincluding, but not limited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and agrees that\nthe restrictive covenants set forth in this Agreement will not pose any hardship on Employee and that Employee will reasonably be able to earn an\nequivalent livelihood without violating any provision of this Agreement.\n9. Non-Competition Period Payments. To the extent Employee is denied a specific employment position that would otherwise be offered to\nEmployee by a Competing Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement, and provided\nEmployee satisfies all conditions stated herein, then upon expiration of the period of time represented by any severance benefits Employee was\noffered, Company will make payments to Employee equal to Employee’s monthly base pay at the time of Employee’s separation from Company\nemployment (exclusive of bonus and other extra compensation and any other employee benefits) for each month of such unemployment through the\nend of the Restricted Period.\n(a) Expiration of Severance Benefits. Severance benefits shall be deemed to have expired at the conclusion of the period of time represented by\nthe total amount of any severance benefits offered to\n-5-\nEmployee (even if such offered severance benefits are not actually paid as a result of action or inaction on the part of Employee), including but not\nlimited to basic severance benefits, supplemental severance benefits and severance benefits payable pursuant to a change in control severance\nagreement to which Employee is a party.\n(b) Verification of Eligibility for Non-Competition Period Payments. To qualify for payments under this Section 9, Employee must provide\nCompany detailed written documentation supporting eligibility for payment, including, at a minimum, (a) the name and location of the Competing\nOrganization that would have employed Employee but for the provisions of Section 7 of this Agreement, (b) the title, nature, and detailed job\nresponsibilities of the employment position with the Competing Organization that Employee was denied, (c) the date Employee was denied the\nemployment position, and (d) the name and contact information of a managerial employee at the Competing Organization who has sufficient\nauthority to confirm that Employee was denied this specific employment position with the Competing Organization solely because Employee is\nsubject to the provisions of Section 7 of this Agreement (the “eligibility documentation”). Upon receipt of the eligibility documentation, Company\nwill determine eligibility for payment and, if eligibility is established, payments will commence as of the date of Company’s receipt of the eligibility\ndocumentation.\n(c) Obligation to Pursue Replacement Employment and Verification of Continued Eligibility for Non-Competition Period Payments. Employee\nis obligated to diligently seek and pursue replacement employment that does not violate Section 7 of this Agreement (“replacement employment”)\nduring any period in which Employee seeks and/or accepts payment from Company under this Section 9. After eligibility for non-competition period\npayments is established, Employee will, on or before the 15 day of each month of eligibility for continued payments, submit to Company a written\nstatement (i) identifying by name and address all prospective employers with whom Employee has applied or inquired about employment;\n(ii) identifying positions sought with each listed employer and specific actions taken in seeking each position; (iii) describing all other efforts made\nto obtain replacement employment; and (iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the reason(s) for declining if the\noffer was declined.\n(d) Effect of Replacement Employment on Non-Competition Period Payments. If Employee is denied a specific employment position with a\nCompeting Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement but obtains replacement employment,\nand the monthly compensation (including base pay, commissions, incentive compensation, bonuses and other compensation) for the replacement\nemployment is less than Employee’s monthly base pay at the time of Employee’s separation from employment with Company, Company agrees to\npay Employee the difference for each such month through the end of the Restricted Period, again upon expiration of any severance benefits which\nEmployee was offered and provided Employee satisfies all conditions stated herein. Employee shall submit to Company payroll records (as well as\nany other records reasonably requested by Company) showing all compensation received by Employee from the replacement employment as a\ncondition of Company’s payment of Non-Competition Period Payments covering any period of time when Employee is working in replacement\nemployment.\n(e) Company’s Right To Provide Release of Obligations in Lieu of Non-Competition Period Payments. Notwithstanding any of the foregoing\nprovisions of this Section 9, Company reserves the right to release Employee from Employee’s obligations under Section 7 of this Agreement at any\ntime during the Restricted Period, in full or in sufficient part to allow Employee to accept employment that would otherwise be prohibited under this\nAgreement, at which time Company’s payment obligations under this Section 9 shall cease immediately and Employee shall not be entitled to any\nfurther such payments or compensation.\n-6-\nth\n10. Severability, Modification of Restrictions: The covenants and restrictions in this Agreement are separate and divisible, and to the extent\nany clause, portion or section of this Agreement is determined to be unenforceable or invalid for any reason, Company and Employee acknowledge\nand agree that such unenforceability or invalidity shall not affect the enforceability or validity of the remainder of the Agreement. If any particular\ncovenant, provision or clause of this Agreement is determined to be unreasonable or unenforceable for any reason, including, without limitation,\ntemporal duration, scope of prohibited activity, and/or scope of geographic area, Company and Employee acknowledge and agree that such\ncovenant, provision or clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original form and\nshall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable under applicable law. The parties agree\nthat any court interpreting the provisions of this Agreement shall have the authority, if necessary, to reform any such provision to make it enforceable\nunder applicable law.\n11. Remedies. Employee acknowledges that a breach or threatened breach by Employee of this Agreement will give rise to irreparable injury\nto Company and that money damages will not be adequate relief for such injury. Accordingly, Employee agrees that Company shall be entitled to\nobtain injunctive relief, including, but not limited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without\nhaving to post any bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal remedies which may\nbe available. In addition to all other relief to which it shall be entitled, Company shall be entitled to cease all payments to which Employee would\notherwise be entitled under Section 9 hereto; continue to enforce this Agreement; recover from Employee all payments made under Section 9 to the\nextent attributable to a time during which Employee was in violation of the covenants for which payment was made; and recover from Employee all\nlitigation costs and attorneys’ fees incurred by Company in any action or proceeding relating to this Agreement in which Company prevails in any\nrespect, including, but not limited to, any action or proceeding in which Company seeks enforcement of this Agreement or seeks relief from\nEmployee’s violation of this Agreement.\n12. Survival of Obligations. Employee acknowledges and agrees that Employee’s obligations under this Agreement, including, without\nlimitation, Employee’s non-disclosure and non-competition obligations, shall survive the termination of Employee’s employment with Company,\nwhether such termination is with or without cause and whether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this\nAgreement alters the at-will nature of Employee’s employment and that either Company or Employee may terminate the employment relationship at\nany time, with or without cause or notice. Employee further acknowledges and agrees that: (a) Employee’s non-disclosure, non-disparagement, non-\nsolicitation and non-competition covenants set forth in Sections 2 and 7 of this Agreement shall be construed as independent covenants and that no\nbreach of any contractual or legal duty by Company shall be held sufficient to excuse or terminate Employee’s obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee’s violation or threatened violation of such covenants, and (b) the existence of any\nclaim or cause of action by Employee against Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to\nCompany’s enforcement of Employee’s obligations under Sections 2 and 7 of this Agreement.\n13. Governing Law and Choice of Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of\nIndiana, notwithstanding any state’s choice-of-law rules to the contrary. The parties agree that any legal action relating to this Agreement shall be\ncommenced and maintained exclusively before any appropriate state court located in Kosciusko County or the United States District Court for the\nNorthern District of Indiana, South Bend Division. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or\notherwise object to personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside, the English\nversion shall govern.\n-7-\n14. Successors and Assigns. Company shall have the right to assign this Agreement, and, accordingly, this Agreement shall inure to the\nbenefit of, and may be enforced by, any and all successors and assigns of Company, including without limitation by asset assignment, stock sale,\nmerger, consolidation or other corporate reorganization, and shall be binding on Employee. The services to be provided by Employee to Company\nare personal to Employee, and Employee shall not have the right to assign Employee’s duties under this Agreement.\n15. Modification. This Agreement may not be amended, supplemented, or modified except by a written document signed by both Employee\nand a duly authorized officer of Company.\n16. No Waiver. The failure of Company to insist in any one or more instances upon performance of any provision of this Agreement or to\npursue its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights.\n17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which when taken\ntogether will constitute one and the same agreement.\n18. Entire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the parties with respect to the subjects\nspecifically addressed herein, and supersedes any prior agreements, understandings, or representations, oral or written, on the subjects addressed\nherein. Notwithstanding the foregoing, to the extent the employee has an existing non-competition, confidentiality, and/or non-solicitation agreement\nin favor of Company and has breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant to\nsuch existing agreement.\nEmployee’s signature below indicates that Employee has read the entire Agreement, understands what Employee is signing, and is signing the\nAgreement voluntarily. Employee agrees that Company advised Employee to consult with an attorney prior to signing the Agreement.\n“EMPLOYEE”\n(Employee Signature)\nPrinted Name:\nDate:\n“COMPANY”\nBy:\nPrinted Name:\nTitle:\nDate:\n-8-
c94fdb196d2502f60e21793b387023de.pdf	effective_date jurisdiction party term	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT - CHAIRMAN LEE\nExhibit (e)(10)\neBay, Inc.\n2145 Hamilton Avenue\nSan Jose, California 95125\nwww.ebay.com\nJanuary 17, 2009\neBay Inc.\n2145 Hamilton Avenue\nSan Jose, CA 95125\nDear Sirs/Madams,\n1. In connection with the potential purchase by eBay Inc. (the “Proposed Investor” or “eBay”) or an Affiliate (as defined below) thereof of shares\nof Gmarket Inc. (“Gmarket”), including from Interpark Corporation (“Interpark”) and Mr. Ki-Hyung Lee (“Mr. Lee” and, together with Interpark,\nthe “Shareholders”), and the potential combination of Gmarket and Internet Auction Co., Ltd. (the foregoing potential transactions being referred to\nas the “Proposed Transaction”), each of the parties hereto may, in its sole discretion, make available to the other parties and their respective\nAffiliates, Staff (as defined below) and Representatives (as defined below), certain Proprietary Information (as defined below) (the party disclosing\nsuch information being referred to as the “Discloser” and the party receiving such information being referred to as the “Recipient”). For the\npurposes of this agreement, “Affiliates” shall mean any person or entity controlling, controlled by or under common control with a relevant party. As\nused in this definition of term “Affiliate,” “controlling” (including the terms “controlled by” and “under common control with”) means the\npossession, directly or indirectly, of the power to direct or cause time direction of the management policies of a person by reason of ownership of\nvoting securities, by contract or otherwise.\n2. “Proprietary Information” of the Discloser shall mean any information, documents or data provided or made available by (or at the direction of)\nthe Discloser or any of its Affiliates (or any of their respective Staff or Representatives) to the Recipient or any of its Affiliates (or any of their\nrespective Staff or Representatives) in any form (whether directly or indirectly and whether written or oral) which the Discloser considers\nproprietary and confidential and/or, if applicable, is proprietary information of the Discloser or any of its Affiliates, and shall include all notes,\nanalyses, compilations, memos, studies, correspondence, documents, data or other records prepared by the Recipient or its Affiliates or their\nrespective Staff or Representatives, which contain, reflect, summarize or are based on, in whole or in part, such Proprietary Information, as well as\ninformation (the “Transaction Information”) concerning: (a) the content of any discussions of the Proposed Transaction between the parties,\nincluding any terms and conditions under review (including any draft Stock Purchase Agreement), (b) the fact that any such discussions are taking\nplace between the parties, or (c) the status of such discussions.\n3. The Recipient hereby undertakes to the Discloser that it will keep the Discloser ’s Proprietary Information confidential, that it will not use the\nDiscloser ’s Proprietary Information other than in connection with its evaluation of the Proposed Transaction, and that it will not directly or indirectly\ndisclose the Discloser’s Proprietary Information, other than as permitted pursuant to this agreement. Each of the parties to this agreement agrees that\nit will keep the Transaction Information confidential and that it will not, directly or indirectly disclose the Transaction Information, other than as\npermitted pursuant to this agreement. The Recipient agrees that it will use the same standard of care and safeguarding of the Discloser’s Proprietary\nInformation as it employs in protecting its own proprietary information which it desires not to disseminate or publish.\n4. The Recipient may disclose the Discloser’s Proprietary Information and the Transaction Information to such of its and its Affiliates’ directors,\nofficers and employees (collectively, the “Staff”) and to its or its Affiliates’ agents, consultants and professional advisers (collectively the\n“Representatives”) who need to know such information in connection with the Recipient’s evaluation of the Proposed Transaction and shall cause\nits Affiliates, Staff and Representatives to observe the terms of this agreement. Each of the parties shall be fully responsible for any breach of the\nterms of this agreement by it and any of its Affiliates, Representatives or Staff.\n5. For the purposes of this agreement, the Proprietary Information shall not include information or data (or any document) that:\n(a) is or becomes generally available to the public (other than as a result of disclosure in contravention of this agreement);\n(b) is or becomes available to the Recipient or any of its Affiliates, Staff or Representatives on a non-confidential basis from a source other\nthan the Discloser or its Affiliates (or any of their respective Staff or Representatives), provided that none of the Recipient or its\nAffiliates, Staff or Representatives knows or has reason to know that disclosure to the Recipient or any of its Affiliates, Staff or\nRepresentatives is in contravention of a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Discloser; or\n(c) has been developed by the Recipient or any of its Affiliates, Staff or Representatives without the use of or reference to the Discloser’s\nProprietary Information; or\n(d) was in the possession of, or was rightfully known by, the Recipient or any of its Affiliates, Staff or Representatives prior to receipt\nthereof from the Discloser and was not the subject of a confidentiality agreement with the Discloser or any of its Affiliates.\n6. If any party or any of its Affiliates, Staff or Representatives is requested or required by any court of competent jurisdiction, any competent\njudicial, governmental or regulatory body or pursuant to any relevant law or regulation to disclose any Proprietary Information of another party or\nany Transaction Information, such party (to the extent permitted) shall promptly notify the other parties of such request or requirement so that the\nother parties have an opportunity to either seek a protective order, to otherwise seek to protect the Proprietary Information or Transaction\nInformation, as the case may be, or waive compliance with the provisions of this agreement. If, in the absence of a protective order or other remedy\nor the receipt of a waiver, such party or any of its Affiliates, Staff or Representatives is advised by outside counsel that such party or such Affiliate,\nStaff or Representative, as the case may be, is legally compelled to disclose the Proprietary Information or Transaction Information, as the case may\nbe, such party or such Affiliate, Staff or Representative, as the case may be, may, without liability hereunder, disclose only that portion of the\nProprietary Information or Transaction Information, as the case may be, which such counsel advises is legally required to be disclosed. Each party\nshall cooperate with the other parties to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded\nthe Proprietary Information or Transaction Information, as the case may be, by such tribunal.\n7. Nothing contained in this agreement, nor any exchange of the Discloser ’s Proprietary Information, shall grant or confer upon the Recipient, its\nAffiliates or its Staff or Representatives any right, license or authority in or to the Discloser’s Proprietary Information and all rights and intellectual\nproperty in the Discloser’s Proprietary Information shall belong to the Discloser. If requested by the Discloser, the Recipient will promptly return to\nthe Discloser (or procure the return of) (or, at the Recipient’s option, destroy, and certify, by a duly authorized officer, such destruction to the\nDiscloser), all tangible Proprietary Information of the Discloser which is in the possession of the Recipient, its Affiliates or its Staff or\nRepresentatives. Notwithstanding anything to the contrary contained in this agreement, (a) the Recipient may deposit one archival set of the\nProprietary Information with outside counsel solely for evidentiary purposes in connection with a party’s breach of this agreement; and (b) the\naccounting and financial advisors of the Recipient may keep such Proprietary Information as required by applicable law or professional\nrequirements. Nothing in this agreement shall preclude a party from discussing, reviewing, developing for itself, having developed, or developing for\nthird parties, materials which\nare competitive with the Proprietary Information, irrespective of their similarity to the Proprietary Information, so long as such party complies with\nthe terms of this agreement. Access to the Discloser’s Proprietary Information shall not preclude an individual Representative of a Recipient who has\nseen or otherwise had access to such Proprietary Information from working on future projects that related to similar subject matters.\n8. The Recipient agrees that the Discloser (including its Staff and Representatives) makes no representations or warranties express or implied as to\nthe accuracy or completeness of any of the Discloser’s Proprietary Information. Only those representations or warranties which are made in a final\ndefinitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as\nmay be specified therein, will have any legal effect. Except as may be set forth in such final definitive agreement, a Discloser (including its Staff and\nRepresentatives) shall have no liability to the Recipient, its Affiliates or its Staff and Representatives relating to or resulting from the disclosure or\nuse of the Discloser’s Proprietary Information or for any errors or omissions therefrom and none of the Discloser or its Affiliates, Staff or\nRepresentatives shall have any obligation to update or clarify any information so provided.\n9. Within seven days following the Execution Date, Gmarket shall by one or more written notices to eBay identify the individuals to be included in\nExhibit A (referred to herein), and eBay shall by one or more written notices to Gmarket identify the individuals to be included in Exhibit B (referred\nto herein), which individuals shall be included in Exhibit A and Exhibit B to this agreement without further action by either party. eBay hereby\nagrees that, without the prior written consent of Gmarket, for a period of one year from the Execution Date (as defined below), (a) it shall not,\ndirectly or through any other person acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals\nidentified on Exhibit A to leave their current employment with Gmarket so long as such individuals are employed by Gmarket, and (b) none of its\nStaff who has been made aware of this agreement or who has otherwise received Proprietary Information of Gmarket shall, directly or through any\nother person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of Gmarket with\nwhom eBay has had contact, or with respect to whom eBay received Proprietary Information, in each case during the evaluation of the Proposed\nTransaction (the individuals identified on Exhibit A and the employees of Gmarket referred to in this clause “(b)” being hereinafter referred to as the\n“Specified Employees of Gmarket”) to leave their current employment so long as they are employed by Gmarket. Gmarket hereby agrees that,\nwithout the prior written consent of eBay, for a period of one year from the date of this agreement, (i) it shall not, directly or through any other\nperson acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals identified on Exhibit B to leave\ntheir current employment with eBay or a subsidiary of eBay so long as such individuals are employed by eBay or one of its subsidiaries, and\n(ii) none of its Staff who has been made aware of this agreement or who has otherwise received Proprietary Information of eBay shall, directly or\nthrough any other person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of eBay\nor any of its subsidiaries with whom Gmarket has had contact, or with respect to whom Gmarket received Proprietary Information, in each case\nduring the evaluation of the Proposed Transaction (the individuals identified on Exhibit B and the employees of eBay or its subsidiaries referred to in\nthis clause “(b)” being hereinafter referred to as the “Specified Employees of eBay”) to leave their current employment so long as they are\nemployed by eBay or one of its subsidiaries. Notwithstanding anything to the contrary contained in this Section 9, none of the following actions by\neBay or Gmarket shall constitute a breach of this Section 9: (A) any solicitation for employment by means of a general solicitation or advertisement\nnot specifically targeted at the Specified Employees of the other party; (B) engaging any recruiting firm to identify or solicit persons for employment\non behalf of such party, or soliciting the employment of a Specified Employee of the other party who is identified by a recruiting firm, so long as\nsuch recruiting firm is not instructed to target such individuals; or (C) by entering into discussions with any Employee of the other party who shall\nhave initiated contact or sought employment with such party or any of its Affiliates without first having been solicited in violation of this Section 9\n(other than Specified Employees of the other party), provided that, if a party has inadvertently violated this provision by so entering into discussions\nwith a Specified Employee of the other party, such violation may be cured by terminating the discussions with such Specified Employee,\nwithdrawing an offer of employment made to such Specified Employee, or terminating the employment of such Specified Employee, as appropriate.\n10. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the restrictions\nimposed by the United States securities laws and other applicable laws on the purchase or sale of securities by any person who has received material,\nnon-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n11. This agreement may be executed in counterparts and shall be binding, as between Gmarket and eBay, when executed by both of them (the\n“Execution Date”), and shall be binding on Interpark and Mr. Lee when executed by them. This agreement shall be effective as of October 30, 2008\n(the “Effective Date”), when executed by Gmarket and eBay, and shall terminate upon the earlier of (i) two years after completion of the Proposed\nTransaction or (ii) three years after the Effective Date; provided, however, that the provisions of Sections 9 and 14 of this agreement shall be\neffective only as of the Execution Date. The parties hereby agree that any Proprietary Information disclosed prior to the Effective Date between eBay\nand Gmarket shall also be subject to the terms of the Mutual Nondisclosure Agreement dated January 24, 2006 between eBay and Gmarket (the\n“Original Gmarket NDA”), and any Proprietary Information disclosed prior to the Effective Date between eBay and Interpark shall also be subject\nto the terms of the Mutual Nondisclosure Agreement dated December 13, 2006 between eBay and lnterpark (the “Original lnterpark NDA”).\n12. This agreement shall be governed by the laws of the State of Delaware. The Delaware courts (including, to the extent it has jurisdiction, the\nChancery Court located in Delaware) shall have exclusive jurisdiction for the resolution of any disputes in connection with this agreement. It is\nunderstood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by any party and that each party shall\nbe entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. In the event of litigation relating to this\nagreement, if a court of competent jurisdiction determines in a final order from which there is no appeal that this agreement has been breached by a\nparty or by its Staff or Representatives, the breaching party or the party whose Staff or Representatives have breached this agreement, as the case\nmay be, will reimburse the other party for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with\nthe enforcement of this agreement and such litigation. Such remedies shall not be deemed to be the exclusive remedy for a breach of this agreement\nbut shall be in addition to all other remedies available at law or equity.\n13. This agreement is intended to amend and restate the confidentiality agreement entered into between the parties on October 30, 2008 (the “2008\nNDA”); provided, however, that if a party to this agreement does not execute this agreement, then the 2008 NDA shall remain in full force and effect\nwith respect to that party. This agreement, the Original Gmarket NDA, the Original Interpark NDA and, solely with respect to any party who does\nnot execute this Agreement, the 2008 NDA represent the whole agreement among Gmarket, the Shareholders and the Proposed Investor relating to\nthe matters referred to in this agreement and this agreement may not be amended except in writing signed by Gmarket, the Shareholders and the\nProposed Investor. This agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement.\n14. Subject to the proviso to this sentence, each of eBay and Gmarket agrees that, for a period of eighteen months after the Execution Date, unless\nspecifically invited in writing by the other party, neither it nor any of its officers, directors or controlled affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended (the “1934 Act”)) will in any manner, directly or indirectly:\na.\neffect, offer or propose (whether publicly or otherwise) to effect, or participate in, or in any way assist (with the knowledge that such\nparty is assisting with any of the actions described herein) any other Person to effect, offer or propose (whether publicly or otherwise) to\neffect or participate:\ni.\nany acquisition of any securities (or beneficial ownership thereof) or assets of the other party or any of its subsidiaries (other than\nthrough nondirected investments in mutual funds or other similar investments),\nii.\nany tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries,\niii.\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any\nof its subsidiaries, or\niv.\nany “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents\nto vote any voting securities of the other party\n(it being understood that this clause (a) shall not restrict negotiations with respect to the Proposed Transaction until eBay is so notified in\nwriting by Gmarket);\nb. form, join or in any way participate in a “group” (as defined under the 1934 Act) for purposes of accomplishing any of the transactions\nreferred to in (a) above;\nc.\nmake any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving the other party or its securities or assets;\nd.\notherwise act, alone or in concert with others, to seek to control the management, Board of Directors or policies of the other party;\ne.\ntake any action which is likely to require that the other party make a public announcement regarding any of the types of matters set forth\nin (a) above; or\nf.\nenter into any discussions or arrangements with any third party (other than its Representatives) with respect to any of the foregoing.\nprovided, however, that, notwithstanding anything to the contrary contained in this Section 14, nothing in this Section 14 shall limit or otherwise\nrestrict either eBay or Gmarket from making or submitting any offer or proposal or entering into any discussions or negotiations (whether to or with\nthe other party or any shareholder of the other party), in each case relating to the acquisition of any of the securities or assets of the other party or any\nsubsidiary of the other party or any business combination or other transaction involving the other party or any subsidiary of the other party\n(including, without limitation, the types of transactions referred to in (a) above), so long as such offer or proposal (1) is not made publicly, and (2) is\nnot likely to require that the other party make a public announcement regarding such offer or proposal. Each of eBay and Gmarket also agrees during\nsuch period not to request the other party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of\nthis Section 14 (including this sentence).\n15. If any Proprietary Information includes materials or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each party understands and agrees that the\nparties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties that the\nsharing of such material is not intended to, and shall not waive or diminish in any way the confidentiality of such material or its continued protection\nunder the attorney-client privilege, work product doctrine, or other applicable privilege. All Proprietary Information provided by a party that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection\nunder these privileges, this agreement, and under the joint defense doctrine.\n16. Each party acknowledges and agrees that no failure or delay by the other party in exercising any right, power or privilege hereunder will operate\nas a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or\nprivilege hereunder. The agreements set forth herein may be waived or modified only by an agreement in writing signed on behalf of the parties\nhereto.\nSincerely,\nGmarket Inc.\nBy: /s/ John Milburn\nName: John Milburn\nTitle: Chairman, Special Committee\nDate: January 18, 2009\nInterpark Corporation\nBy: /s/ Ki-Hyung Lee\nName: Ki-Hyung Lee\nTitle: Chairman and CEO\nDate: January 19, 2009\nKi-Hyung Lee\n/s/ Ki-Hyung Lee\nDate: January 19, 2009\nAccepted and agreed as of the effective date hereof by and\non behalf of eBay Inc.:\nBy: /s/ Lorraine McDonough\nName: Lorraine McDonough\nTitle: Vice President, Corporate Development\nDate: January 17, 2009	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT - CHAIRMAN LEE\nExhibit (e)(10)\neBay, Inc.\n2145 Hamilton Avenue\nSan Jose, California 95125\nwww.ebay.com\nJanuary 17, 2009\neBay Inc.\n2145 Hamilton Avenue\nSan Jose, CA 95125\nDear Sirs/Madams,\n1. In connection with the potential purchase by eBay Inc. (the “Proposed Investor” or “eBay”) or an Affiliate (as defined below) thereof of shares\nof Gmarket Inc. (“Gmarket”), including from Interpark Corporation (“Interpark”) and Mr. Ki-Hyung Lee (“Mr. Lee” and, together with Interpark,\nthe “Shareholders”), and the potential combination of Gmarket and Internet Auction Co., Ltd. (the foregoing potential transactions being referred to\nas the “Proposed Transaction”), each of the parties hereto may, in its sole discretion, make available to the other parties and their respective\nAffiliates, Staff (as defined below) and Representatives (as defined below), certain Proprietary Information (as defined below) (the party disclosing\nsuch information being referred to as the “Discloser” and the party receiving such information being referred to as the “Recipient”). For the\npurposes of this agreement, “Affiliates” shall mean any person or entity controlling, controlled by or under common control with a relevant party. As\nused in this definition of term “Affiliate,” “controlling” (including the terms “controlled by” and “under common control with”) means the\npossession, directly or indirectly, of the power to direct or cause time direction of the management policies of a person by reason of ownership of\nvoting securities, by contract or otherwise.\n2. “Proprietary Information” of the Discloser shall mean any information, documents or data provided or made available by (or at the direction of)\nthe Discloser or any of its Affiliates (or any of their respective Staff or Representatives) to the Recipient or any of its Affiliates (or any of their\nrespective Staff or Representatives) in any form (whether directly or indirectly and whether written or oral) which the Discloser considers\nproprietary and confidential and/or, if applicable, is proprietary information of the Discloser or any of its Affiliates, and shall include all notes,\nanalyses, compilations, memos, studies, correspondence, documents, data or other records prepared by the Recipient or its Affiliates or their\nrespective Staff or Representatives, which contain, reflect, summarize or are based on, in whole or in part, such Proprietary Information, as well as\ninformation (the “Transaction Information”) concerning: (a) the content of any discussions of the Proposed Transaction between the parties,\nincluding any terms and conditions under review (including any draft Stock Purchase Agreement), (b) the fact that any such discussions are taking\nplace between the parties, or (c) the status of such discussions.\n3. The Recipient hereby undertakes to the Discloser that it will keep the Discloser’s Proprietary Information confidential, that it will not use the\nDiscloser’s Proprietary Information other than in connection with its evaluation of the Proposed Transaction, and that it will not directly or indirectly\ndisclose the Discloser’s Proprietary Information, other than as permitted pursuant to this agreement. Each of the parties to this agreement agrees that\nit will keep the Transaction Information confidential and that it will not, directly or indirectly disclose the Transaction Information, other than as\npermitted pursuant to this agreement. The Recipient agrees that it will use the same standard of care and safeguarding of the Discloser’s Proprietary\nInformation as it employs in protecting its own proprietary information which it desires not to disseminate or publish.\n4. The Recipient may disclose the Discloser’s Proprietary Information and the Transaction Information to such of its and its Affiliates’ directors,\nofficers and employees (collectively, the “Staff”) and to its or its Affiliates” agents, consultants and professional advisers (collectively the\n“Representatives”) who need to know such information in connection with the Recipient’s evaluation of the Proposed Transaction and shall cause\nits Affiliates, Staff and Representatives to observe the terms of this agreement. Each of the parties shall be fully responsible for any breach of the\nterms of this agreement by it and any of its Affiliates, Representatives or Staff.\n5. For the purposes of this agreement, the Proprietary Information shall not include information or data (or any document) that:\n(a) is or becomes generally available to the public (other than as a result of disclosure in contravention of this agreement);\n(b) is or becomes available to the Recipient or any of its Affiliates, Staff or Representatives on a non-confidential basis from a source other\nthan the Discloser or its Affiliates (or any of their respective Staff or Representatives), provided that none of the Recipient or its\nAffiliates, Staff or Representatives knows or has reason to know that disclosure to the Recipient or any of its Affiliates, Staff or\nRepresentatives is in contravention of a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Discloser; or\n(c) has been developed by the Recipient or any of its Affiliates, Staff or Representatives without the use of or reference to the Discloser’s\nProprietary Information; or\n(d) was in the possession of, or was rightfully known by, the Recipient or any of its Affiliates, Staff or Representatives prior to receipt\nthereof from the Discloser and was not the subject of a confidentiality agreement with the Discloser or any of its Affiliates.\n6. If any party or any of its Affiliates, Staff or Representatives is requested or required by any court of competent jurisdiction, any competent\njudicial, governmental or regulatory body or pursuant to any relevant law or regulation to disclose any Proprietary Information of another party or\nany Transaction Information, such party (to the extent permitted) shall promptly notify the other parties of such request or requirement so that the\nother parties have an opportunity to either seek a protective order, to otherwise seek to protect the Proprietary Information or Transaction\nInformation, as the case may be, or waive compliance with the provisions of this agreement. If, in the absence of a protective order or other remedy\nor the receipt of a waiver, such party or any of its Affiliates, Staff or Representatives is advised by outside counsel that such party or such Affiliate,\nStaff or Representative, as the case may be, is legally compelled to disclose the Proprietary Information or Transaction Information, as the case may\nbe, such party or such Affiliate, Staff or Representative, as the case may be, may, without liability hereunder, disclose only that portion of the\nProprietary Information or Transaction Information, as the case may be, which such counsel advises is legally required to be disclosed. Each party\nshall cooperate with the other parties to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded\nthe Proprietary Information or Transaction Information, as the case may be, by such tribunal.\n7. Nothing contained in this agreement, nor any exchange of the Discloser’s Proprietary Information, shall grant or confer upon the Recipient, its\nAffiliates or its Staff or Representatives any right, license or authority in or to the Discloser’s Proprietary Information and all rights and intellectual\nproperty in the Discloser’s Proprietary Information shall belong to the Discloser. If requested by the Discloser, the Recipient will promptly return to\nthe Discloser (or procure the return of) (or, at the Recipient’s option, destroy, and certify, by a duly authorized officer, such destruction to the\nDiscloser), all tangible Proprietary Information of the Discloser which is in the possession of the Recipient, its Affiliates or its Staff or\nRepresentatives. Notwithstanding anything to the contrary contained in this agreement, (a) the Recipient may deposit one archival set of the\nProprietary Information with outside counsel solely for evidentiary purposes in connection with a party’s breach of this agreement; and (b) the\naccounting and financial advisors of the Recipient may keep such Proprietary Information as required by applicable law or professional\nrequirements. Nothing in this agreement shall preclude a party from discussing, reviewing, developing for itself, having developed, or developing for\nthird parties, materials which\nare competitive with the Proprietary Information, irrespective of their similarity to the Proprietary Information, so long as such party complies with\nthe terms of this agreement. Access to the Discloser’s Proprietary Information shall not preclude an individual Representative of a Recipient who has\nseen or otherwise had access to such Proprietary Information from working on future projects that related to similar subject matters.\n8. The Recipient agrees that the Discloser (including its Staff and Representatives) makes no representations or warranties express or implied as to\nthe accuracy or completeness of any of the Discloser’s Proprietary Information. Only those representations or warranties which are made in a final\ndefinitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as\nmay be specified therein, will have any legal effect. Except as may be set forth in such final definitive agreement, a Discloser (including its Staff and\nRepresentatives) shall have no liability to the Recipient, its Affiliates or its Staff and Representatives relating to or resulting from the disclosure or\nuse of the Discloser’s Proprietary Information or for any errors or omissions therefrom and none of the Discloser or its Affiliates, Staff or\nRepresentatives shall have any obligation to update or clarify any information so provided.\n9. Within seven days following the Execution Date, Gmarket shall by one or more written notices to eBay identify the individuals to be included in\nExhibit A (referred to herein), and eBay shall by one or more written notices to Gmarket identify the individuals to be included in Exhibit B (referred\nto herein), which individuals shall be included in Exhibit A and Exhibit B to this agreement without further action by either party. eBay hereby\nagrees that, without the prior written consent of Gmarket, for a period of one year from the Execution Date (as defined below), (a) it shall not,\ndirectly or through any other person acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals\nidentified on Exhibit A to leave their current employment with Gmarket so long as such individuals are employed by Gmarket, and (b) none of its\nStaff who has been made aware of this agreement or who has otherwise received Proprietary Information of Gmarket shall, directly or through any\nother person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of Gmarket with\nwhom eBay has had contact, or with respect to whom eBay received Proprietary Information, in each case during the evaluation of the Proposed\nTransaction (the individuals identified on Exhibit A and the employees of Gmarket referred to in this clause “(b)” being hereinafter referred to as the\n“Specified Employees of Gmarket”) to leave their current employment so long as they are employed by Gmarket. Gmarket hereby agrees that,\nwithout the prior written consent of eBay, for a period of one year from the date of this agreement, (i) it shall not, directly or through any other\nperson acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals identified on Exhibit B to leave\ntheir current employment with eBay or a subsidiary of eBay so long as such individuals are employed by eBay or one of its subsidiaries, and\n(ii) none of its Staff who has been made aware of this agreement or who has otherwise received Proprietary Information of eBay shall, directly or\nthrough any other person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of eBay\nor any of its subsidiaries with whom Gmarket has had contact, or with respect to whom Gmarket received Proprietary Information, in each case\nduring the evaluation of the Proposed Transaction (the individuals identified on Exhibit B and the employees of eBay or its subsidiaries referred to in\nthis clause “(b)” being hereinafter referred to as the “Specified Employees of eBay”) to leave their current employment so long as they are\nemployed by eBay or one of its subsidiaries. Notwithstanding anything to the contrary contained in this Section 9, none of the following actions by\neBay or Gmarket shall constitute a breach of this Section 9: (A) any solicitation for employment by means of a general solicitation or advertisement\nnot specifically targeted at the Specified Employees of the other party; (B) engaging any recruiting firm to identify or solicit persons for employment\non behalf of such party, or soliciting the employment of a Specified Employee of the other party who is identified by a recruiting firm, so long as\nsuch recruiting firm is not instructed to target such individuals; or (C) by entering into discussions with any Employee of the other party who shall\nhave initiated contact or sought employment with such party or any of its Affiliates without first having been solicited in violation of this Section 9\n(other than Specified Employees of the other party), provided that, if a party has inadvertently violated this provision by so entering into discussions\nwith a Specified Employee of the other party, such violation may be cured by terminating the discussions with such Specified Employee,\nwithdrawing an offer of employment made to such Specified Employee, or terminating the employment of such Specified Employee, as appropriate.\n10. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the restrictions\nimposed by the United States securities laws and other applicable laws on the purchase or sale of securities by any person who has received material,\nnon-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n11. This agreement may be executed in counterparts and shall be binding, as between Gmarket and eBay, when executed by both of them (the\n“Execution Date”), and shall be binding on Interpark and Mr. Lee when executed by them. This agreement shall be effective as of October 30, 2008\n(the “Effective Date”), when executed by Gmarket and eBay, and shall terminate upon the earlier of (i) two years after completion of the Proposed\nTransaction or (ii) three years after the Effective Date; provided, however, that the provisions of Sections 9 and 14 of this agreement shall be\neffective only as of the Execution Date. The parties hereby agree that any Proprietary Information disclosed prior to the Effective Date between eBay\nand Gmarket shall also be subject to the terms of the Mutual Nondisclosure Agreement dated January 24, 2006 between eBay and Gmarket (the\n“Original Gmarket NDA”), and any Proprietary Information disclosed prior to the Effective Date between eBay and Interpark shall also be subject\nto the terms of the Mutual Nondisclosure Agreement dated December 13, 2006 between eBay and Interpark (the “Original Interpark NDA”).\n12. This agreement shall be governed by the laws of the State of Delaware. The Delaware courts (including, to the extent it has jurisdiction, the\nChancery Court located in Delaware) shall have exclusive jurisdiction for the resolution of any disputes in connection with this agreement. It is\nunderstood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by any party and that each party shall\nbe entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. In the event of litigation relating to this\nagreement, if a court of competent jurisdiction determines in a final order from which there is no appeal that this agreement has been breached by a\nparty or by its Staff or Representatives, the breaching party or the party whose Staff or Representatives have breached this agreement, as the case\nmay be, will reimburse the other party for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with\nthe enforcement of this agreement and such litigation. Such remedies shall not be deemed to be the exclusive remedy for a breach of this agreement\nbut shall be in addition to all other remedies available at law or equity.\n13. This agreement is intended to amend and restate the confidentiality agreement entered into between the parties on October 30, 2008 (the “2008\nNDA?”); provided, however, that if a party to this agreement does not execute this agreement, then the 2008 NDA shall remain in full force and effect\nwith respect to that party. This agreement, the Original Gmarket NDA, the Original Interpark NDA and, solely with respect to any party who does\nnot execute this Agreement, the 2008 NDA represent the whole agreement among Gmarket, the Shareholders and the Proposed Investor relating to\nthe matters referred to in this agreement and this agreement may not be amended except in writing signed by Gmarket, the Shareholders and the\nProposed Investor. This agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement.\n14. Subject to the proviso to this sentence, each of eBay and Gmarket agrees that, for a period of eighteen months after the Execution Date, unless\nspecifically invited in writing by the other party, neither it nor any of its officers, directors or controlled affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended (the “1934 Act”)) will in any manner, directly or indirectly:\na.  effect, offer or propose (whether publicly or otherwise) to effect, or participate in, or in any way assist (with the knowledge that such\nparty is assisting with any of the actions described herein) any other Person to effect, offer or propose (whether publicly or otherwise) to\neffect or participate:\nL. any acquisition of any securities (or beneficial ownership thereof) or assets of the other party or any of its subsidiaries (other than\nthrough nondirected investments in mutual funds or other similar investments),\nii. any tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries,\n1. any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any\nof its subsidiaries, or\niv. any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents\nto vote any voting securities of the other party\n(it being understood that this clause (a) shall not restrict negotiations with respect to the Proposed Transaction until eBay is so notified in\nwriting by Gmarket);\nb.  form, join or in any way participate in a “group” (as defined under the 1934 Act) for purposes of accomplishing any of the transactions\nreferred to in (a) above;\nc.  make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving the other party or its securities or assets;\nd.  otherwise act, alone or in concert with others, to seek to control the management, Board of Directors or policies of the other party;\ne.  take any action which is likely to require that the other party make a public announcement regarding any of the types of matters set forth\nin (a) above; or\nf. enter into any discussions or arrangements with any third party (other than its Representatives) with respect to any of the foregoing.\nprovided, however, that, notwithstanding anything to the contrary contained in this Section 14, nothing in this Section 14 shall limit or otherwise\nrestrict either eBay or Gmarket from making or submitting any offer or proposal or entering into any discussions or negotiations (whether to or with\nthe other party or any shareholder of the other party), in each case relating to the acquisition of any of the securities or assets of the other party or any\nsubsidiary of the other party or any business combination or other transaction involving the other party or any subsidiary of the other party\n(including, without limitation, the types of transactions referred to in (a) above), so long as such offer or proposal (1) is not made publicly, and (2) is\nnot likely to require that the other party make a public announcement regarding such offer or proposal. Each of eBay and Gmarket also agrees during\nsuch period not to request the other party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of\nthis Section 14 (including this sentence).\n15. If any Proprietary Information includes materials or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each party understands and agrees that the\nparties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties that the\nsharing of such material is not intended to, and shall not waive or diminish in any way the confidentiality of such material or its continued protection\nunder the attorney-client privilege, work product doctrine, or other applicable privilege. All Proprietary Information provided by a party that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection\nunder these privileges, this agreement, and under the joint defense doctrine.\n16. Each party acknowledges and agrees that no failure or delay by the other party in exercising any right, power or privilege hereunder will operate\nas a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or\nprivilege hereunder. The agreements set forth herein may be waived or modified only by an agreement in writing signed on behalf of the parties\nhereto.\nSincerely, Gmarket Inc. By:\nName:\nTitle:\nDate:\n/s/ John Milburn\nJohn Milburn\nChairman, Special Committee\nJanuary 18, 2009\nInterpark Corporation By:\nName:\nTitle:\nDate:\n/s/ Ki-Hyung Lee\nKi-Hyung Lee\nChairman and CEO\nJanuary 19, 2009\nKi-Hyung Lee /s/ Ki-Hyung Lee Date:\nJanuary 19, 2009\nAccepted and agreed as of the effective date hereof by and on behalf of eBay Inc.:\nBy: /s/ Lorraine McDonough\nName: Lorraine McDonough\nTitle:\nDate:\nVice President, Corporate Development\nJanuary 17, 2009	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT CHAIRMAN LEE\nExhibit (e)(10)\neBay, Inc.\n2145 Hamilton Avenue\nSan Jose, California 95125\nwww.ebay.com\nJanuary 17, 2009\neBay Inc.\n2145 Hamilton Avenue\nSan Jose, CA 95125\nDear Sirs/Madams,\n1. In connection with the potential purchase by eBay Inc. (the "Proposed Investor" or "eBay") or an Affiliate (as defined below) thereof of shares\nof Gmarket Inc. ("Gmarket"), including from Interpark Corporation ("Interpark") and Mr. Ki-Hyung Lee ("Mr. Lee" and, together with Interpark,\nthe "Shareholders"), and the potential combination of Gmarket and Internet Auction Co., Ltd. (the foregoing potential transactions being referred to\nas\nthe "Proposed Transaction"), each of the parties hereto may, in its sole discretion, make available to the other parties and their respective\nAffiliates, Staff (as defined below) and Representatives (as defined below), certain Proprietary Information (as defined below) (the party disclosing\nsuch information being referred to as the "Discloser" and the party receiving such information being referred to as the "Recipient"). For the\npurposes of this agreement, "Affiliates" shall mean any person or entity controlling, controlled by or under common control with a relevant party. As\nused in this definition of term "Affiliate," "controlling" (including the terms "controlled by" and "under common control with") means the\npossession, directly or indirectly, of the power to direct or cause time direction of the management policies of a person by reason of ownership of\nvoting securities, by contract or otherwise.\n2. "Proprietary Information" of the Discloser shall mean any information, documents or data provided or made available by (or at the direction of)\nthe Discloser or any of its Affiliates (or any of their respective Staff or Representatives) to the Recipient or any of its Affiliates (or any of their\nrespective Staff or Representatives) in any form (whether directly or indirectly and whether written or oral) which the Discloser considers\nproprietary and confidential and/or, if applicable, is proprietary information of the Discloser or any of its Affiliates, and shall include all notes,\nanalyses, compilations, memos, studies, correspondence, documents, data or other records prepared by the Recipient or its Affiliates or their\nrespective Staff or Representatives, which contain, reflect, summarize or are based on, in whole or in part, such Proprietary Information, as well as\ninformation (the "Transaction Information") concerning: (a) the content of any discussions of the Proposed Transaction between the parties,\nincluding any terms and conditions under review (including any draft Stock Purchase Agreement), (b) the fact that any such discussions are taking\nplace between the parties, or (c) the status of such discussions.\n3. The Recipient hereby undertakes to the Discloser that it will keep the Discloser's Proprietary Information confidential, that it will not use the\nDiscloser's Proprietary Information other than in connection with its evaluation of the Proposed Transaction, and that it will not directly or indirectly\ndisclose the Discloser's Proprietary Information, other than as permitted pursuant to this agreement. Each of the parties to this agreement agrees that\nit will keep the Transaction Information confidential and that it will not, directly or indirectly disclose the Transaction Information, other than\nas\npermitted pursuant to this agreement. The Recipient agrees that it will use the same standard of care and safeguarding of the Discloser's Proprietary\nInformation as it employs in protecting its own proprietary information which it desires not to disseminate or publish.\n4.\nThe Recipient may disclose the Discloser's Proprietary Information and the Transaction Information to such of its and its Affiliates' directors,\nofficers and employees (collectively, the "Staff") and to its or its Affiliates' agents, consultants and professional advisers (collectively the\n"Representatives") who need to know such information in connection with the Recipient's evaluation of the Proposed Transaction and shall cause\nits Affiliates, Staff and Representatives to observe the terms of this agreement. Each of the parties shall be fully responsible for any breach of the\nterms of this agreement by it and any of its Affiliates, Representatives or Staff.\n5. For the purposes of this agreement, the Proprietary Information shall not include information or data (or any document) that:\n(a)\nis or becomes generally available to the public (other than as a result of disclosure in contravention of this agreement);\n(b)\nis or becomes available to the Recipient or any of its Affiliates, Staff or Representatives on a non-confidential basis from a source other\nthan the Discloser or its Affiliates (or any of their respective Staff or Representatives), provided that none of the Recipient or its\nAffiliates,\nStaff\nor\nRepresentatives\nknows\nor\nhas\nreason\nto\nknow\nthat\ndisclosure\nto\nthe\nRecipient\nor\nany\nof\nits\nAffiliates,\nStaff\nor\nRepresentatives is in contravention of a confidentiality agreement with, or other contractual, legal or fiduciary obligation\nof\nconfidentiality to, the Discloser; or\n(c)\nhas been developed by the Recipient or any of its Affiliates, Staff or Representatives without the use of or reference to the Discloser's\nProprietary Information; or\n(d) was in the possession of, or was rightfully known by, the Recipient or any of its Affiliates, Staff or Representatives prior to receipt\nthereof from the Discloser and was not the subject of a confidentiality agreement with the Discloser or any of its Affiliates.\n6. If any party or any of its Affiliates, Staff or Representatives is requested or required by any court of competent jurisdiction, any competent\njudicial, governmental or regulatory body or pursuant to any relevant law or regulation to disclose any Proprietary Information of another party or\nany Transaction Information, such party (to the extent permitted) shall promptly notify the other parties of such request or requirement so that the\nother parties have an opportunity to either seek a protective order, to otherwise seek to protect the Proprietary Information or Transaction\nInformation, as the case may be, or waive compliance with the provisions of this agreement. If, in the absence of a protective order or other remedy\nor the receipt of a waiver, such party or any of its Affiliates, Staff or Representatives is advised by outside counsel that such party or such Affiliate,\nStaff\nor Representative, as the case may be, is legally compelled to disclose the Proprietary Information or Transaction Information, as the case may\nbe, such party or such Affiliate, Staff or Representative, as the case may be, may, without liability hereunder, disclose only that portion of the\nProprietary Information or Transaction Information, as the case may be, which such counsel advises is legally required to be disclosed. Each party\nshall cooperate with the other parties to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded\nthe Proprietary Information or Transaction Information, as the case may be, by such tribunal.\n7. Nothing contained in this agreement, nor any exchange of the Discloser's Proprietary Information, shall grant or confer upon the Recipient, its\nAffiliates or its Staff or Representatives any right, license or authority in or to the Discloser's Proprietary Information and all rights and intellectual\nproperty in the Discloser's Proprietary Information shall belong to the Discloser. If requested by the Discloser, the Recipient will promptly return\nto\nthe Discloser (or procure the return of) (or, at the Recipient's option, destroy, and certify, by a duly authorized officer, such destruction to the\nDiscloser), all tangible Proprietary Information of the Discloser which is in the possession of the Recipient, its Affiliates or its Staff or\nRepresentatives. Notwithstanding anything to the contrary contained in this agreement, (a) the Recipient may deposit one archival set of the\nProprietary Information with outside counsel solely for evidentiary purposes in connection with a party's breach of this agreement; and (b) the\naccounting and financial advisors of the Recipient may keep such Proprietary Information as required by applicable law or professional\nrequirements. Nothing in this agreement shall preclude a party from discussing, reviewing, developing for itself, having developed, or developing for\nthird parties, materials which\nare competitive with the Proprietary Information, irrespective of their similarity to the Proprietary Information, so long as such party complies with\nthe terms of this agreement. Access to the Discloser's Proprietary Information shall not preclude an individual Representative of a Recipient who has\nseen or otherwise had access to such Proprietary Information from working on future projects that related to similar subject matters.\n8. The Recipient agrees that the Discloser (including its Staff and Representatives) makes no representations or warranties express or implied as\nto\nthe\naccuracy\nor\ncompleteness\nof\nany\nof\nthe\nDiscloser's\nProprietary\nInformation.\nOnly\nthose\nrepresentations\nor\nwarranties\nwhich\nare\nmade\nin\na\nfinal\ndefinitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as\nmay be specified therein, will have any legal effect. Except as may be set forth in such final definitive agreement, a Discloser (including its Staff and\nRepresentatives) shall have no liability to the Recipient, its Affiliates or its Staff and Representatives relating to or resulting from the disclosure or\nuse of the Discloser's Proprietary Information or for any errors or omissions therefrom and none of the Discloser or its Affiliates, Staff or\nRepresentatives shall have any obligation to update or clarify any information so provided.\n9. Within seven days following the Execution Date, Gmarket shall by one or more written notices to eBay identify the individuals to be included in\nExhibit A (referred to herein), and eBay shall by one or more written notices to Gmarket identify the individuals to be included in Exhibit B (referred\nto\nherein), which individuals shall be included in Exhibit A and Exhibit B to this agreement without further action by either party. eBay hereby\nagrees that, without the prior written consent of Gmarket, for a period of one year from the Execution Date (as defined below), (a) it shall not,\ndirectly or through any other person acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals\nidentified on Exhibit A to leave their current employment with Gmarket so long as such individuals are employed by Gmarket, and (b) none of its\nStaff who has been made aware of this agreement or who has otherwise received Proprietary Information of Gmarket shall, directly or through any\nother person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of Gmarket with\nwhom eBay has had contact, or with respect to whom eBay received Proprietary Information, in each case during the evaluation of the Proposed\nTransaction (the individuals identified on Exhibit A and the employees of Gmarket referred to in this clause "(b)" being hereinafter referred to as the\n"Specified Employees of Gmarket") to leave their current employment so long as they are employed by Gmarket. Gmarket hereby agrees that,\nwithout the prior written consent of eBay, for a period of one year from the date of this agreement, (i) it shall not, directly or through any other\nperson acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals identified on Exhibit B to leave\ntheir current employment with eBay or a subsidiary of eBay so long as such individuals are employed by eBay or one of its subsidiaries, and\n(ii) none of its Staff who has been made aware of this agreement or who has otherwise received Proprietary Information of eBay shall, directly or\nthrough any other person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of eBay\nor any of its subsidiaries with whom Gmarket has had contact, or with respect to whom Gmarket received Proprietary Information, in each case\nduring the evaluation of the Proposed Transaction (the individuals identified on Exhibit B and the employees of eBay or its subsidiaries referred to\nin\nthis clause "(b)" being hereinafter referred to as the "Specified Employees of eBay") to leave their current employment so long as they are\nemployed by eBay or one of its subsidiaries Notwithstanding anything to the contrary contained in this Section 9, none of the following actions by\neBay or Gmarket shall constitute a breach of this Section 9: (A) any solicitation for employment by means of a general solicitation or advertisement\nnot specifically targeted at the Specified Employees of the other party; (B) engaging any recruiting firm to identify or solicit persons for employment\non behalf of such party, or soliciting the employment of a Specified Employee of the other party who is identified by a recruiting firm, so long as\nsuch recruiting firm is not instructed to target such individuals; or (C) by entering into discussions with any Employee of the other party who shall\nhave initiated contact or sought employment with such party or any of its Affiliates without first having been solicited in violation of this Section 9\n(other than Specified Employees of the other party), provided that, if a party has inadvertently violated this provision by so entering into discussions\nwith a Specified Employee of the other party, such violation may be cured by terminating the discussions with such Specified Employee,\nwithdrawing an offer of employment made to such Specified Employee, or terminating the employment of such Specified Employee, as appropriate.\n10. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the restrictions\nimposed by the United States securities laws and other applicable laws on the purchase or sale of securities by any person who has received material,\nnon-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n11. This agreement may be executed in counterparts and shall be binding, as between Gmarket and eBay, when executed by both of them (the\n"Execution Date"), and shall be binding on Interpark and Mr. Lee when executed by them. This agreement shall be effective as of October 30, 2008\n(the "Effective Date"), when executed by Gmarket and eBay, and shall terminate upon the earlier of (i) two years after completion of the Proposed\nTransaction or (ii) three years after the Effective Date; provided, however, that the provisions of Sections 9 and 14 of this agreement shall be\neffective only as of the Execution Date. The parties hereby agree that any Proprietary Information disclosed prior to the Effective Date between eBay\nand Gmarket shall also be subject to the terms of the Mutual Nondisclosure Agreement dated January 24, 2006 between eBay and Gmarket (the\n"Original Gmarket NDA"), and any Proprietary Information disclosed prior to the Effective Date between eBay and Interpark shall also be subject\nto the terms of the Mutual Nondisclosure Agreement dated December 13, 2006 between eBay and Interpark (the "Original Interpark NDA").\n12. This agreement shall be governed by the laws of the State of Delaware. The Delaware courts (including, to the extent it has jurisdiction, the\nChancery Court located in Delaware) shall have exclusive jurisdiction for the resolution of any disputes in connection with this agreement. It is\nunderstood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by any party and that each party shall\nbe entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. In the event of litigation relating to this\nagreement, if a court of competent jurisdiction determines in a final order from which there is no appeal that this agreement has been breached by a\nparty or by its Staff or Representatives, the breaching party or the party whose Staff or Representatives have breached this agreement, as the case\nmay be, will reimburse the other party for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with\nthe enforcement of this agreement and such litigation. Such remedies shall not be deemed to be the exclusive remedy for a breach of this agreement\nbut shall be in addition to all other remedies available at law or equity.\n13 This agreement is intended to amend and restate the confidentiality agreement entered into between the parties on October 30, 2008 (the "2008\nNDA"); provided, however, that if a party to this agreement does not execute this agreement, then the 2008 NDA shall remain in full force and effect\nwith respect to that party. This agreement, the Original Gmarket NDA, the Original Interpark NDA and, solely with respect to any party who does\nnot execute this Agreement, the 2008 NDA represent the whole agreement among Gmarket, the Shareholders and the Proposed Investor relating to\nthe matters referred to in this agreement and this agreement may not be amended except in writing signed by Gmarket, the Shareholders and the\nProposed Investor. This agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement.\n14. Subject to the proviso to this sentence, each of eBay and Gmarket agrees that, for a period of eighteen months after the Execution Date, unless\nspecifically invited in writing by the other party, neither it nor any of its officers, directors or controlled affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended (the "1934 A will in any manner, directly or indirectly:\na.\neffect, offer or propose (whether publicly or otherwise) to effect, or participate in, or in any way assist (with the knowledge that such\nparty is assisting with any of the actions described herein) any other Person to effect, offer or propose (whether publicly or otherwise) to\neffect or participate:\ni.\nany acquisition of any securities (or beneficial ownership thereof) or assets of the other party or any of its subsidiaries (other than\nthrough nondirected investments in mutual funds or other similar investments),\nii.\nany tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries,\niii.\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any\nof its subsidiaries, or\niv.\nany "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents\nto vote any voting securities of the other party\n(it being understood that this clause (a) shall not restrict negotiations with respect to the Proposed Transaction until eBay is so notified in\nwriting by Gmarket);\nb.\nform, join or in any way participate in a "group" (as defined under the 1934 Act) for purposes of accomplishing any of the transactions\nreferred to in (a) above;\nC.\nmake any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving the other party or its securities or assets;\nd.\notherwise act, alone or in concert with others, to seek to control the management, Board of Directors or policies of the other party;\ne.\ntake any action which is likely to require that the other party make a public announcement regarding any of the types of matters set forth\nin (a) above; or\nf.\nenter into any discussions or arrangements with any third party (other than its Representatives) with respect to any of the foregoing.\nprovided, however, that, notwithstanding anything to the contrary contained in this Section 14, nothing in this Section 14 shall limit or otherwise\nrestrict either eBay or Gmarket from making or submitting any offer or proposal or entering into any discussions or negotiations (whether to or with\nthe other party or any shareholder of the other party), in each case relating to the acquisition of any of the securities or assets of the other party or any\nsubsidiary of the other party or any business combination or other transaction involving the other party or any subsidiary of the other party\n(including, without limitation, the types of transactions referred to in (a) above), so long as such offer or proposal (1) is not made publicly, and (2) is\nnot likely to require that the other party make a public announcement regarding such offer or proposal. Each of eBay and Gmarket also agrees during\nsuch period not to request the other party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of\nthis Section 14 (including this sentence).\n15. If any Proprietary Information includes materials or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each party understands and agrees that the\nparties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties that the\nsharing of such material is not intended to, and shall not waive or diminish in any way the confidentiality of such material or its continued protection\nunder the attorney-client privilege, work product doctrine, or other applicable privilege. All Proprietary Information provided by a party that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection\nunder these privileges, this agreement, and under the joint defense doctrine.\n16. Each party acknowledges and agrees that no failure or delay by the other party in exercising any right, power or privilege hereunder will operate\nas a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower,\nor\nprivilege hereunder. The agreements set forth herein may be waived or modified only by an agreement in writing signed on behalf of the parties\nhereto.\nSincerely,\nGmarket Inc.\nBy:\n/s/ John Milburn\nName: John Milburn\nTitle: Chairman, Special Committee\nDate: January 18, 2009\nInterpark Corporation\nBy:\n/s/ Ki-Hyung Lee\nName: Ki-Hyung Lee\nTitle: Chairman and CEO\nDate: January 19, 2009\nKi-Hyung Lee\n/s/ Ki-Hyung Lee\nDate: January 19, 2009\nAccepted and agreed as of the effective date hereof by and\non behalf of eBay Inc.:\nBy:\n/s/ Lorraine McDonough\nName: Lorraine McDonough\nTitle: Vice President, Corporate Development\nDate: January 17, 2009	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT - CHAIRMAN LEE\nExhibit (e)(10)\neBay, Inc.\n2145 Hamilton Avenue\nSan Jose, California 95125\nwww.ebay.com\nJanuary 17, 2009\neBay Inc.\n2145 Hamilton Avenue\nSan Jose, CA 95125\nDear Sirs/Madams,\n1. In connection with the potential purchase by eBay Inc. (the “Proposed Investor” or “eBay”) or an Affiliate (as defined below) thereof of shares\nof Gmarket Inc. (“Gmarket”), including from Interpark Corporation (“Interpark”) and Mr. Ki-Hyung Lee (“Mr. Lee” and, together with Interpark,\nthe “Shareholders”), and the potential combination of Gmarket and Internet Auction Co., Ltd. (the foregoing potential transactions being referred to\nas the “Proposed Transaction”), each of the parties hereto may, in its sole discretion, make available to the other parties and their respective\nAffiliates, Staff (as defined below) and Representatives (as defined below), certain Proprietary Information (as defined below) (the party disclosing\nsuch information being referred to as the “Discloser” and the party receiving such information being referred to as the “Recipient”). For the\npurposes of this agreement, “Affiliates” shall mean any person or entity controlling, controlled by or under common control with a relevant party. As\nused in this definition of term “Affiliate,” “controlling” (including the terms “controlled by” and “under common control with”) means the\npossession, directly or indirectly, of the power to direct or cause time direction of the management policies of a person by reason of ownership of\nvoting securities, by contract or otherwise.\n2. “Proprietary Information” of the Discloser shall mean any information, documents or data provided or made available by (or at the direction of)\nthe Discloser or any of its Affiliates (or any of their respective Staff or Representatives) to the Recipient or any of its Affiliates (or any of their\nrespective Staff or Representatives) in any form (whether directly or indirectly and whether written or oral) which the Discloser considers\nproprietary and confidential and/or, if applicable, is proprietary information of the Discloser or any of its Affiliates, and shall include all notes,\nanalyses, compilations, memos, studies, correspondence, documents, data or other records prepared by the Recipient or its Affiliates or their\nrespective Staff or Representatives, which contain, reflect, summarize or are based on, in whole or in part, such Proprietary Information, as well as\ninformation (the “Transaction Information”) concerning: (a) the content of any discussions of the Proposed Transaction between the parties,\nincluding any terms and conditions under review (including any draft Stock Purchase Agreement), (b) the fact that any such discussions are taking\nplace between the parties, or (c) the status of such discussions.\n3. The Recipient hereby undertakes to the Discloser that it will keep the Discloser ’s Proprietary Information confidential, that it will not use the\nDiscloser ’s Proprietary Information other than in connection with its evaluation of the Proposed Transaction, and that it will not directly or indirectly\ndisclose the Discloser’s Proprietary Information, other than as permitted pursuant to this agreement. Each of the parties to this agreement agrees that\nit will keep the Transaction Information confidential and that it will not, directly or indirectly disclose the Transaction Information, other than as\npermitted pursuant to this agreement. The Recipient agrees that it will use the same standard of care and safeguarding of the Discloser’s Proprietary\nInformation as it employs in protecting its own proprietary information which it desires not to disseminate or publish.\n4. The Recipient may disclose the Discloser’s Proprietary Information and the Transaction Information to such of its and its Affiliates’ directors,\nofficers and employees (collectively, the “Staff”) and to its or its Affiliates’ agents, consultants and professional advisers (collectively the\n“Representatives”) who need to know such information in connection with the Recipient’s evaluation of the Proposed Transaction and shall cause\nits Affiliates, Staff and Representatives to observe the terms of this agreement. Each of the parties shall be fully responsible for any breach of the\nterms of this agreement by it and any of its Affiliates, Representatives or Staff.\n5. For the purposes of this agreement, the Proprietary Information shall not include information or data (or any document) that:\n(a) is or becomes generally available to the public (other than as a result of disclosure in contravention of this agreement);\n(b) is or becomes available to the Recipient or any of its Affiliates, Staff or Representatives on a non-confidential basis from a source other\nthan the Discloser or its Affiliates (or any of their respective Staff or Representatives), provided that none of the Recipient or its\nAffiliates, Staff or Representatives knows or has reason to know that disclosure to the Recipient or any of its Affiliates, Staff or\nRepresentatives is in contravention of a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Discloser; or\n(c) has been developed by the Recipient or any of its Affiliates, Staff or Representatives without the use of or reference to the Discloser’s\nProprietary Information; or\n(d) was in the possession of, or was rightfully known by, the Recipient or any of its Affiliates, Staff or Representatives prior to receipt\nthereof from the Discloser and was not the subject of a confidentiality agreement with the Discloser or any of its Affiliates.\n6. If any party or any of its Affiliates, Staff or Representatives is requested or required by any court of competent jurisdiction, any competent\njudicial, governmental or regulatory body or pursuant to any relevant law or regulation to disclose any Proprietary Information of another party or\nany Transaction Information, such party (to the extent permitted) shall promptly notify the other parties of such request or requirement so that the\nother parties have an opportunity to either seek a protective order, to otherwise seek to protect the Proprietary Information or Transaction\nInformation, as the case may be, or waive compliance with the provisions of this agreement. If, in the absence of a protective order or other remedy\nor the receipt of a waiver, such party or any of its Affiliates, Staff or Representatives is advised by outside counsel that such party or such Affiliate,\nStaff or Representative, as the case may be, is legally compelled to disclose the Proprietary Information or Transaction Information, as the case may\nbe, such party or such Affiliate, Staff or Representative, as the case may be, may, without liability hereunder, disclose only that portion of the\nProprietary Information or Transaction Information, as the case may be, which such counsel advises is legally required to be disclosed. Each party\nshall cooperate with the other parties to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded\nthe Proprietary Information or Transaction Information, as the case may be, by such tribunal.\n7. Nothing contained in this agreement, nor any exchange of the Discloser ’s Proprietary Information, shall grant or confer upon the Recipient, its\nAffiliates or its Staff or Representatives any right, license or authority in or to the Discloser’s Proprietary Information and all rights and intellectual\nproperty in the Discloser’s Proprietary Information shall belong to the Discloser. If requested by the Discloser, the Recipient will promptly return to\nthe Discloser (or procure the return of) (or, at the Recipient’s option, destroy, and certify, by a duly authorized officer, such destruction to the\nDiscloser), all tangible Proprietary Information of the Discloser which is in the possession of the Recipient, its Affiliates or its Staff or\nRepresentatives. Notwithstanding anything to the contrary contained in this agreement, (a) the Recipient may deposit one archival set of the\nProprietary Information with outside counsel solely for evidentiary purposes in connection with a party’s breach of this agreement; and (b) the\naccounting and financial advisors of the Recipient may keep such Proprietary Information as required by applicable law or professional\nrequirements. Nothing in this agreement shall preclude a party from discussing, reviewing, developing for itself, having developed, or developing for\nthird parties, materials which\nare competitive with the Proprietary Information, irrespective of their similarity to the Proprietary Information, so long as such party complies with\nthe terms of this agreement. Access to the Discloser’s Proprietary Information shall not preclude an individual Representative of a Recipient who has\nseen or otherwise had access to such Proprietary Information from working on future projects that related to similar subject matters.\n8. The Recipient agrees that the Discloser (including its Staff and Representatives) makes no representations or warranties express or implied as to\nthe accuracy or completeness of any of the Discloser’s Proprietary Information. Only those representations or warranties which are made in a final\ndefinitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as\nmay be specified therein, will have any legal effect. Except as may be set forth in such final definitive agreement, a Discloser (including its Staff and\nRepresentatives) shall have no liability to the Recipient, its Affiliates or its Staff and Representatives relating to or resulting from the disclosure or\nuse of the Discloser’s Proprietary Information or for any errors or omissions therefrom and none of the Discloser or its Affiliates, Staff or\nRepresentatives shall have any obligation to update or clarify any information so provided.\n9. Within seven days following the Execution Date, Gmarket shall by one or more written notices to eBay identify the individuals to be included in\nExhibit A (referred to herein), and eBay shall by one or more written notices to Gmarket identify the individuals to be included in Exhibit B (referred\nto herein), which individuals shall be included in Exhibit A and Exhibit B to this agreement without further action by either party. eBay hereby\nagrees that, without the prior written consent of Gmarket, for a period of one year from the Execution Date (as defined below), (a) it shall not,\ndirectly or through any other person acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals\nidentified on Exhibit A to leave their current employment with Gmarket so long as such individuals are employed by Gmarket, and (b) none of its\nStaff who has been made aware of this agreement or who has otherwise received Proprietary Information of Gmarket shall, directly or through any\nother person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of Gmarket with\nwhom eBay has had contact, or with respect to whom eBay received Proprietary Information, in each case during the evaluation of the Proposed\nTransaction (the individuals identified on Exhibit A and the employees of Gmarket referred to in this clause “(b)” being hereinafter referred to as the\n“Specified Employees of Gmarket”) to leave their current employment so long as they are employed by Gmarket. Gmarket hereby agrees that,\nwithout the prior written consent of eBay, for a period of one year from the date of this agreement, (i) it shall not, directly or through any other\nperson acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals identified on Exhibit B to leave\ntheir current employment with eBay or a subsidiary of eBay so long as such individuals are employed by eBay or one of its subsidiaries, and\n(ii) none of its Staff who has been made aware of this agreement or who has otherwise received Proprietary Information of eBay shall, directly or\nthrough any other person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of eBay\nor any of its subsidiaries with whom Gmarket has had contact, or with respect to whom Gmarket received Proprietary Information, in each case\nduring the evaluation of the Proposed Transaction (the individuals identified on Exhibit B and the employees of eBay or its subsidiaries referred to in\nthis clause “(b)” being hereinafter referred to as the “Specified Employees of eBay”) to leave their current employment so long as they are\nemployed by eBay or one of its subsidiaries. Notwithstanding anything to the contrary contained in this Section 9, none of the following actions by\neBay or Gmarket shall constitute a breach of this Section 9: (A) any solicitation for employment by means of a general solicitation or advertisement\nnot specifically targeted at the Specified Employees of the other party; (B) engaging any recruiting firm to identify or solicit persons for employment\non behalf of such party, or soliciting the employment of a Specified Employee of the other party who is identified by a recruiting firm, so long as\nsuch recruiting firm is not instructed to target such individuals; or (C) by entering into discussions with any Employee of the other party who shall\nhave initiated contact or sought employment with such party or any of its Affiliates without first having been solicited in violation of this Section 9\n(other than Specified Employees of the other party), provided that, if a party has inadvertently violated this provision by so entering into discussions\nwith a Specified Employee of the other party, such violation may be cured by terminating the discussions with such Specified Employee,\nwithdrawing an offer of employment made to such Specified Employee, or terminating the employment of such Specified Employee, as appropriate.\n10. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the restrictions\nimposed by the United States securities laws and other applicable laws on the purchase or sale of securities by any person who has received material,\nnon-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n11. This agreement may be executed in counterparts and shall be binding, as between Gmarket and eBay, when executed by both of them (the\n“Execution Date”), and shall be binding on Interpark and Mr. Lee when executed by them. This agreement shall be effective as of October 30, 2008\n(the “Effective Date”), when executed by Gmarket and eBay, and shall terminate upon the earlier of (i) two years after completion of the Proposed\nTransaction or (ii) three years after the Effective Date; provided, however, that the provisions of Sections 9 and 14 of this agreement shall be\neffective only as of the Execution Date. The parties hereby agree that any Proprietary Information disclosed prior to the Effective Date between eBay\nand Gmarket shall also be subject to the terms of the Mutual Nondisclosure Agreement dated January 24, 2006 between eBay and Gmarket (the\n“Original Gmarket NDA”), and any Proprietary Information disclosed prior to the Effective Date between eBay and Interpark shall also be subject\nto the terms of the Mutual Nondisclosure Agreement dated December 13, 2006 between eBay and lnterpark (the “Original lnterpark NDA”).\n12. This agreement shall be governed by the laws of the State of Delaware. The Delaware courts (including, to the extent it has jurisdiction, the\nChancery Court located in Delaware) shall have exclusive jurisdiction for the resolution of any disputes in connection with this agreement. It is\nunderstood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by any party and that each party shall\nbe entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. In the event of litigation relating to this\nagreement, if a court of competent jurisdiction determines in a final order from which there is no appeal that this agreement has been breached by a\nparty or by its Staff or Representatives, the breaching party or the party whose Staff or Representatives have breached this agreement, as the case\nmay be, will reimburse the other party for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with\nthe enforcement of this agreement and such litigation. Such remedies shall not be deemed to be the exclusive remedy for a breach of this agreement\nbut shall be in addition to all other remedies available at law or equity.\n13. This agreement is intended to amend and restate the confidentiality agreement entered into between the parties on October 30, 2008 (the “2008\nNDA”); provided, however, that if a party to this agreement does not execute this agreement, then the 2008 NDA shall remain in full force and effect\nwith respect to that party. This agreement, the Original Gmarket NDA, the Original Interpark NDA and, solely with respect to any party who does\nnot execute this Agreement, the 2008 NDA represent the whole agreement among Gmarket, the Shareholders and the Proposed Investor relating to\nthe matters referred to in this agreement and this agreement may not be amended except in writing signed by Gmarket, the Shareholders and the\nProposed Investor. This agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement.\n14. Subject to the proviso to this sentence, each of eBay and Gmarket agrees that, for a period of eighteen months after the Execution Date, unless\nspecifically invited in writing by the other party, neither it nor any of its officers, directors or controlled affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended (the “1934 Act”)) will in any manner, directly or indirectly:\na.\neffect, offer or propose (whether publicly or otherwise) to effect, or participate in, or in any way assist (with the knowledge that such\nparty is assisting with any of the actions described herein) any other Person to effect, offer or propose (whether publicly or otherwise) to\neffect or participate:\ni.\nany acquisition of any securities (or beneficial ownership thereof) or assets of the other party or any of its subsidiaries (other than\nthrough nondirected investments in mutual funds or other similar investments),\nii.\nany tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries,\niii.\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any\nof its subsidiaries, or\niv.\nany “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents\nto vote any voting securities of the other party\n(it being understood that this clause (a) shall not restrict negotiations with respect to the Proposed Transaction until eBay is so notified in\nwriting by Gmarket);\nb. form, join or in any way participate in a “group” (as defined under the 1934 Act) for purposes of accomplishing any of the transactions\nreferred to in (a) above;\nc.\nmake any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving the other party or its securities or assets;\nd.\notherwise act, alone or in concert with others, to seek to control the management, Board of Directors or policies of the other party;\ne.\ntake any action which is likely to require that the other party make a public announcement regarding any of the types of matters set forth\nin (a) above; or\nf.\nenter into any discussions or arrangements with any third party (other than its Representatives) with respect to any of the foregoing.\nprovided, however, that, notwithstanding anything to the contrary contained in this Section 14, nothing in this Section 14 shall limit or otherwise\nrestrict either eBay or Gmarket from making or submitting any offer or proposal or entering into any discussions or negotiations (whether to or with\nthe other party or any shareholder of the other party), in each case relating to the acquisition of any of the securities or assets of the other party or any\nsubsidiary of the other party or any business combination or other transaction involving the other party or any subsidiary of the other party\n(including, without limitation, the types of transactions referred to in (a) above), so long as such offer or proposal (1) is not made publicly, and (2) is\nnot likely to require that the other party make a public announcement regarding such offer or proposal. Each of eBay and Gmarket also agrees during\nsuch period not to request the other party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of\nthis Section 14 (including this sentence).\n15. If any Proprietary Information includes materials or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each party understands and agrees that the\nparties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties that the\nsharing of such material is not intended to, and shall not waive or diminish in any way the confidentiality of such material or its continued protection\nunder the attorney-client privilege, work product doctrine, or other applicable privilege. All Proprietary Information provided by a party that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection\nunder these privileges, this agreement, and under the joint defense doctrine.\n16. Each party acknowledges and agrees that no failure or delay by the other party in exercising any right, power or privilege hereunder will operate\nas a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or\nprivilege hereunder. The agreements set forth herein may be waived or modified only by an agreement in writing signed on behalf of the parties\nhereto.\nSincerely,\nGmarket Inc.\nBy: /s/ John Milburn\nName: John Milburn\nTitle: Chairman, Special Committee\nDate: January 18, 2009\nInterpark Corporation\nBy: /s/ Ki-Hyung Lee\nName: Ki-Hyung Lee\nTitle: Chairman and CEO\nDate: January 19, 2009\nKi-Hyung Lee\n/s/ Ki-Hyung Lee\nDate: January 19, 2009\nAccepted and agreed as of the effective date hereof by and\non behalf of eBay Inc.:\nBy: /s/ Lorraine McDonough\nName: Lorraine McDonough\nTitle: Vice President, Corporate Development\nDate: January 17, 2009
ca73abb1bc8bdd8cdf09d90bb0146cf3.pdf	effective_date jurisdiction party term	EX-10.4 2 dex104.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.4\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT made as of the 3rd of July 2007 (the “Agreement”), between Orthovita\nInc., a Pennsylvania corporation, with offices at 77 Great Valley Parkway, Malvern, Pennsylvania 19355 (the “Company”) and Maarten Persenaire\n(“Employee”).\nWHEREAS, the Company shall increase the salary and annual bonus opportunity for Employee effective July 3, 2007; and\nNOW THEREFORE, in consideration of such salary and bonus opportunity increase, and the mutual covenants and agreements herein\ncontained, the parties, intending to be legally bound, hereto agree as follows:\n1. Restrictive Covenants\n(a) Non-Competition. During the term of Employee’s employment with the Company, which commenced April 15, 1999 (the “Term”), and for\nthe 9- month period beginning on the date the Employee’s employment terminates, for any reason (the “Restriction Period”), the Employee hereby\nagrees that he will not, without the Company’s express written consent, engage (directly or indirectly) in any employment or business activity which\ndesigns, manufactures, sells, licenses or markets any technologies or competing products of the Company or any of its subsidiaries or affiliates, or\nwould otherwise conflict with the Employee’s employment by the Company. Such products and technologies include those products and\ntechnologies which the Company or any of its subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed or, at the time of\ntermination of Employee’s employment, may be in the process of developing, manufacturing, selling, licensing or marketing.\n(b) Non-Solicitation and Non-Hire of Company Personnel. During the Term and for the Restriction Period, the Employee hereby agrees that he\nwill not, either directly or through others, hire or attempt to hire, any current or former employee of the Company, or solicit or attempt to solicit any\ncurrent or former employee, consultant or independent contractor of the Company to change or terminate his, her or its relationship with the\nCompany or otherwise to become an employee for or of any other person or business entity, unless more than twelve months shall have elapsed\nbetween the last day of such person’s employment or service with the Company and the first date of such solicitation or hiring or attempt to solicit or\nhire.\n(c) Non-Solicitation of Customers. During the Term and for the Restriction Period, the Employee hereby agrees that he will not, either directly,\nthrough others or on behalf of third parties, solicit, divert or appropriate, or attempt to solicit, divert or appropriate any customer or actively sought\nprospective customer of the Company for the purpose of providing such customer or actively sought prospective customer with services or products\ncompetitive with those offered by the Company during the Term.\n(d) Non-Disparagement. Employee agrees that Employee will not disparage the Company, its subsidiaries and parents, and their respective\nofficers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators, or make any\npublic statement reflecting negatively on the Company, its subsidiaries and parents, and their respective officers, directors, employees, and agents,\nand its and their respective successors and assigns, heirs, executors, and administrators, to third parties, including any matters relating to the\noperation or management of the Company, irrespective of the truthfulness or falsity of such statement.\n(e) Proprietary Information. At all times during the Term and at all times thereafter, the Employee will hold in strictest confidence and will not\ndisclose, use, lecture upon or publish any of the Company’s Proprietary Information (as defined below), except as such disclosure, use or publication\nmay be required in connection with the Employee’s work for the Company, or unless the Company expressly authorizes such disclosure in writing or\ndisclosure is required by law or in a judicial or administrative proceeding, in which event the Employee shall promptly notify the Company of the\nrequired disclosure and assist the Company if it determines to resist the disclosure. “Proprietary Information” shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company, its affiliated entities and partners, including but not limited to information\nrelating to financial matters, investments, budgets, business plans, marketing plans, personnel matters, business contacts, products, processes, know-\nhow, designs, methods, improvements, discoveries, inventions, ideas, data, programs, and other works of authorship.\n(f) Invention Assignment. The Employee agrees that all inventions, innovations, improvements, developments, methods, designs, analyses,\nreports, and all similar or related information which relates to the Company’s actual or anticipated business, research and development or existing or\nfuture products or services and which are conceived, developed or made by Employee while employed by the Company (“Work Product”) belong to\nthe Company. The Employee will promptly disclose such Work Product to the Company’s Chief Executive Officer (“CEO”) or Board of Directors\n(“Board”) and perform all actions reasonably requested by the CEO or the Board (whether during or after the Term) to establish and confirm such\nownership (including, without limitation, assignments, consents, powers of attorneys and other instruments).\n(g) Return of Company Property. Upon termination of the Employee’s employment with the Company for any reason whatsoever, voluntarily\nor involuntarily, and at any earlier time the Company requests, the Employee will deliver to the person designated by the Company all originals and\ncopies of all documents and property of the Company in the Employee’s possession, under the Employee’s control or to which the Employee may\nhave access. The Employee will not reproduce or appropriate for the Employee’s own use, or for the use of others, any property, Proprietary\nInformation or Company inventions.\n2. Legal and Equitable Remedies. Because the Employee’s services are personal and unique and the Employee has had and will continue to have\naccess to and has become and will continue to become acquainted with the proprietary information of the Company, and because any breach\n2\nby the Employee of any of the restrictive covenants contained in Section 1 would result in irreparable injury and damage for which money damages\nwould not provide an adequate remedy, the Company shall have the right to enforce Section 1 and any of its provisions by injunction, specific\nperformance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach,\nor threatened breach, of the restrictive covenants set forth in Section 1. The Employee agrees that in any action in which the Company seeks\ninjunction, specific performance or other equitable relief, the Employee will not assert or contend that any of the provisions of Section 1 are\nunreasonable or otherwise unenforceable. The Employee irrevocably and unconditionally (a) agrees that any legal proceeding arising out of this\nparagraph may be brought in the United States District Court for the Eastern District of Pennsylvania, or if such court does not have jurisdiction or\nwill not accept jurisdiction, in any court of general jurisdiction in Chester County, Pennsylvania, (b) consents to the non-exclusive jurisdiction of\nsuch court in any such proceeding, and (c) waives any objection to the laying of venue of any such proceeding in any such court. The Employee also\nirrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers.\n3. Miscellaneous.\n(a) Governing Law. The rights of the Company under this Agreement are in addition to, not in lieu of, the rights afforded to it by law, which\nshall in no way be affected hereby. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania without giving effect to the conflicts of laws provisions thereof.\n(b) Binding Agreement; Assignment. This Agreement shall inure to the benefit of and becoming binding upon the Company, its successors and\nassigns, and Employees, his or her heirs, executors, administrators and legal representatives; provided, however, that the obligations of Employee\nhereunder may not be delegated.\n(c) Amendment Headings. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and may not\nbe changed or terminated orally. The descriptive headings of the several sections of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement.\n(d) Waiver. No waiver by any party of any breach of any term hereof shall be construed as a waiver of any subsequent breach of that term or\nany other term of the same or of a different nature.\n(e) Notices. Any notices of other communications given pursuant to this Agreement shall be in writing and shall be deemed given when\ndelivered or mailed in any general or branch office of the United States Postal Service by registered or certified mail, return receipt requested, to the\nparties’ respective addresses set forth in this Agreement. Either party to this Agreement may change the aforesaid address by notice to the other party\nhereto given in the manner prescribed in this paragraph; provided, however, that notice of change of address will be effective only upon receipt.\n3\n(f) Severability. If any court of competent jurisdiction determines that it is not possible to construe any provision of this Agreement\nconsistently with a law or public policy, and consequently holds that said provision is invalid, such holding shall in no way affect the validity of the\nother provisions of this Agreement.\n(g) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be original and all of which taken together\nshall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.\nORTHOVITA INC.\nBy: /s/ Antony Koblish\n/s/ Maarten Persenaire, M.D .\nPresident & CEO\nAddress:\n4	EX-10.4 2 dex104.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.4\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT made as of the 3rd of July 2007 (the “Agreement”), between Orthovita\nInc., a Pennsylvania corporation, with offices at 77 Great Valley Parkway, Malvern, Pennsylvania 19355 (the “Company”) and Maarten Persenaire\n(“Employee”).\nWHEREAS, the Company shall increase the salary and annual bonus opportunity for Employee effective July 3, 2007; and\nNOW THEREFORE, in consideration of such salary and bonus opportunity increase, and the mutual covenants and agreements herein\ncontained, the parties, intending to be legally bound, hereto agree as follows:\n1. Restrictive Covenants\n(a) Non-Competition. During the term of Employee’s employment with the Company, which commenced April 15, 1999 (the “Term”), and for\nthe 9- month period beginning on the date the Employee’s employment terminates, for any reason (the “Restriction Period”), the Employee hereby\nagrees that he will not, without the Company’s express written consent, engage (directly or indirectly) in any employment or business activity which\ndesigns, manufactures, sells, licenses or markets any technologies or competing products of the Company or any of its subsidiaries or affiliates, or\nwould otherwise conflict with the Employee’s employment by the Company. Such products and technologies include those products and\ntechnologies which the Company or any of its subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed or, at the time of\ntermination of Employee’s employment, may be in the process of developing, manufacturing, selling, licensing or marketing.\n \n(b) Non-Solicitation and Non-Hire of Company Personnel. During the Term and for the Restriction Period, the Employee hereby agrees that he\nwill not, either directly or through others, hire or attempt to hire, any current or former employee of the Company, or solicit or attempt to solicit any\ncurrent or former employee, consultant or independent contractor of the Company to change or terminate his, her or its relationship with the\nCompany or otherwise to become an employee for or of any other person or business entity, unless more than twelve months shall have elapsed\nbetween the last day of such person’s employment or service with the Company and the first date of such solicitation or hiring or attempt to solicit or\nhire.\n(c) Non-Solicitation of Customers. During the Term and for the Restriction Period, the Employee hereby agrees that he will not, either directly,\nthrough others or on behalf of third parties, solicit, divert or appropriate, or attempt to solicit, divert or appropriate any customer or actively sought\nprospective customer of the Company for the purpose of providing such customer or actively sought prospective customer with services or products\ncompetitive with those offered by the Company during the Term.\n(d) Non-Disparagement. Employee agrees that Employee will not disparage the Company, its subsidiaries and parents, and their respective\nofficers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators, or make any\npublic statement reflecting negatively on the Company, its subsidiaries and parents, and their respective officers, directors, employees, and agents,\nand its and their respective successors and assigns, heirs, executors, and administrators, to third parties, including any matters relating to the\noperation or management of the Company, irrespective of the truthfulness or falsity of such statement.\n(e) Proprietary Information. At all times during the Term and at all times thereafter, the Employee will hold in strictest confidence and will not\ndisclose, use, lecture upon or publish any of the Company’s Proprietary Information (as defined below), except as such disclosure, use or publication\nmay be required in connection with the Employee’s work for the Company, or unless the Company expressly authorizes such disclosure in writing or\ndisclosure is required by law or in a judicial or administrative proceeding, in which event the Employee shall promptly notify the Company of the\nrequired disclosure and assist the Company if it determines to resist the disclosure. “Proprietary Information” shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company, its affiliated entities and partners, including but not limited to information\nrelating to financial matters, investments, budgets, business plans, marketing plans, personnel matters, business contacts, products, processes, know-\nhow, designs, methods, improvements, discoveries, inventions, ideas, data, programs, and other works of authorship.\n(f) Invention Assignment. The Employee agrees that all inventions, innovations, improvements, developments, methods, designs, analyses,\nreports, and all similar or related information which relates to the Company’s actual or anticipated business, research and development or existing or\nfuture products or services and which are conceived, developed or made by Employee while employed by the Company (“Work Product”) belong to\nthe Company. The Employee will promptly disclose such Work Product to the Company’s Chief Executive Officer (“CEO”) or Board of Directors\n(“Board”) and perform all actions reasonably requested by the CEO or the Board (whether during or after the Term) to establish and confirm such\nownership (including, without limitation, assignments, consents, powers of attorneys and other instruments).\nor involuntarily, and at any earlier time the Company requests, the Employee will deliver to the person designated by the Company all originals and\ncopies of all documents and property of the Company in the Employee’s possession, under the Employee’s control or to which the Employee may\nhave access. The Employee will not reproduce or appropriate for the Employee’s own use, or for the use of others, any property, Proprietary\nInformation or Company inventions.\n2. Legal and Equitable Remedies. Because the Employee’s services are personal and unique and the Employee has had and will continue to have\naccess to and has become and will continue to become acquainted with the proprietary information of the Company, and because any breach\n2\nby the Employee of any of the restrictive covenants contained in Section 1 would result in irreparable injury and damage for which money damages\nwould not provide an adequate remedy, the Company shall have the right to enforce Section 1 and any of its provisions by injunction, specific\nperformance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach,\nor threatened breach, of the restrictive covenants set forth in Section 1. The Employee agrees that in any action in which the Company seeks\ninjunction, specific performance or other equitable relief, the Employee will not assert or contend that any of the provisions of Section 1 are\nunreasonable or otherwise unenforceable. The Employee irrevocably and unconditionally (a) agrees that any legal proceeding arising out of this\nparagraph may be brought in the United States District Court for the Eastern District of Pennsylvania, or if such court does not have jurisdiction or\nwill not accept jurisdiction, in any court of general jurisdiction in Chester County, Pennsylvania, (b) consents to the non-exclusive jurisdiction of\nsuch court in any such proceeding, and (c) waives any objection to the laying of venue of any such proceeding in any such court. The Employee also\nirrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers.\n3. Miscellaneous.\n(a) Governing Law. The rights of the Company under this Agreement are in addition to, not in lieu of, the rights afforded to it by law, which\nshall in no way be affected hereby. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania without giving effect to the conflicts of laws provisions thereof.\nassigns, and Employees, his or her heirs, executors, administrators and legal representatives; provided, however, that the obligations of Employee\nhereunder may not be delegated.\n(c) Amendment Headings. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and may not\nbe changed or terminated orally. The descriptive headings of the several sections of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement.\n(d) Waiver. No waiver by any party of any breach of any term hereof shall be construed as a waiver of any subsequent breach of that term or\nany other term of the same or of a different nature.\n(e) Notices. Any notices of other communications given pursuant to this Agreement shall be in writing and shall be deemed given when\ndelivered or mailed in any general or branch office of the United States Postal Service by registered or certified mail, return receipt requested, to the\nparties’ respective addresses set forth in this Agreement. Either party to this Agreement may change the aforesaid address by notice to the other party\nhereto given in the manner prescribed in this paragraph; provided, however, that notice of change of address will be effective only upon receipt.\n3\n(f) Severability. If any court of competent jurisdiction determines that it is not possible to construe any provision of this Agreement\nconsistently with a law or public policy, and consequently holds that said provision is invalid, such holding shall in no way affect the validity of the\nother provisions of this Agreement.\n(g) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be original and all of which taken together\nshall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.\nORTHOVITA INC.\nBy: /s/ Antony Koblish /s/ Maarten Persenaire, M.D.\nPresident & CEO\nAddress:	EX-10.4 2 dex104.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.4\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT made as of the 3rd of July 2007 (the "Agreement"), between Orthovita\nInc., a Pennsylvania corporation, with offices at 77 Great Valley Parkway, Malvern, Pennsylvania 19355 (the "Company") and Maarten Persenaire\n("Employee").\nWHEREAS, the Company shall increase the salary and annual bonus opportunity for Employee effective July 3, 2007; and\nNOW THEREFORE, in consideration of such salary and bonus opportunity increase, and the mutual covenants and agreements herein\ncontained, the parties, intending to be legally bound, hereto agree as follows:\n1. Restrictive Covenants\n(a) Non-Competition. During the term of Employee's employment with the Company, which commenced April 15, 1999 (the "Term"), and for\nthe 9- month period beginning on the date the Employee's employment terminates, for any reason (the "Restriction Period"), the Employee hereby\nagrees that he will not, without the Company's express written consent, engage (directly or indirectly) in any employment or business activity which\ndesigns, manufactures, sells, licenses or markets any technologies or competing products of the Company or any of its subsidiaries or affiliates, or\nwould otherwise conflict with the Employee's employment by the Company. Such products and technologies include those products and\ntechnologies which the Company or any of its subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed or, at the time of\ntermination of Employee's employment, may be in the process of developing, manufacturing, selling, licensing or marketing.\n(b) Non-Solicitation and Non-Hire of Company. Personnel. During the Term and for the Restriction Period, the Employee hereby agrees that he\nwill not, either directly or through others, hire or attempt to hire, any current or former employee of the Company, or solicit or attempt to solicit any\ncurrent or former employee, consultant or independent contractor of the Company to change or terminate his, her or its relationship with the\nCompany or otherwise to become an employee for or of any other person or business entity, unless more than twelve months shall have elapsed\nbetween the last day of such person's employment or service with the Company and the first date of such solicitation or hiring or attempt to solicit or\nhire.\n(c) Non-Solicitation of Customers. During the Term and for the Restriction Period, the Employee hereby agrees that he will not, either directly,\nthrough others or on behalf of third parties, solicit, divert or appropriate, or attempt to solicit, divert or appropriate any customer or actively sought\nprospective customer of the Company for the purpose of providing such customer or actively sought prospective customer with services or products\ncompetitive with those offered by the Company during the Term.\n(d) Non-Disparagement. Employee agrees that Employee will not disparage the Company, its subsidiaries and parents, and their respective\nofficers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators, or make any\npublic statement reflecting negatively on the Company, its subsidiaries and parents, and their respective officers, directors, employees, and agents,\nand its and their respective successors and assigns, heirs, executors, and administrators, to third parties, including any matters relating to the\noperation or management of the Company, irrespective of the truthfulness or falsity of such statement.\n(e) Proprietary Information. At all times during the Term and at all times thereafter, the Employee will hold in strictest confidence and will not\ndisclose, use, lecture upon or publish any of the Company's Proprietary Information (as defined below), except as such disclosure, use or publication\nmay be required in connection with the Employee's work for the Company, or unless the Company expressly authorizes such disclosure in writing or\ndisclosure is required by law or in a judicial or administrative proceeding, in which event the Employee shall promptly notify the Company of the\nrequired disclosure and assist the Company if it determines to resist the disclosure. "Proprietary Information" shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company, its affiliated entities and partners, including but not limited to information\nrelating to financial matters, investments budgets, business plans, marketing plans, personnel matters, business contacts, products, processes, know-\nhow, designs, methods, improvements, discoveries, inventions, ideas, data, programs, and other works of authorship.\n(f) Invention Assignment. The Employee agrees that all inventions, innovations, improvements, developments, methods, designs, analyses,\nreports, and all similar or related information which relates to the Company's actual or anticipated business, research and development or existing or\nfuture products or services and which are conceived, developed or made by Employee while employed by the Company ("Work Product") belong\nto\nthe Company. The Employee will promptly disclose such Work Product to the Company's Chief Executive Officer ("CEO") or Board of Directors\n("Board") and perform all actions reasonably requested by the CEO or the Board (whether during or after the Term) to establish and confirm such\nownership (including, without limitation, assignments, consents, powers of attorneys and other instruments).\n(g) Return of Company. Property.. Upon termination of the Employee's employment with the Company for any reason whatsoever, voluntarily\nor involuntarily, and at any earlier time the Company requests, the Employee will deliver to the person designated by the Company all originals and\ncopies of all documents and property of the Company in the Employee's possession, under the Employee's control or to which the Employee may\nhave access. The Employee will not reproduce or appropriate for the Employee's own use, or for the use of others, any property, Proprietary\nInformation or Company inventions.\n2. Legal and Equitable Remedies. Because the Employee's services are personal and unique and the Employee has had and will continue to have\naccess to and has become and will continue to become acquainted with the proprietary information of the Company, and because any breach\n2\nby the Employee of any of the restrictive covenants contained in Section 1 would result in irreparable injury and damage for which money damages\nwould not provide an adequate remedy, the Company shall have the right to enforce Section 1 and any of its provisions by injunction, specific\nperformance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach,\nor threatened breach, of the restrictive covenants set forth in Section 1. The Employee agrees that in any action in which the Company seeks\ninjunction, specific performance or other equitable relief, the Employee will not assert or contend that any of the provisions of Section 1 are\nunreasonable or otherwise unenforceable. The Employee irrevocably and unconditionally (a) agrees that any legal proceeding arising out of this\nparagraph may be brought in the United States District Court for the Eastern District of Pennsylvania, or if such court does not have jurisdiction or\nwill not accept jurisdiction, in any court of general jurisdiction in Chester County, Pennsylvania, (b) consents to the non-exclusive jurisdiction of\nsuch court in any such proceeding, and (c) waives any objection to the laying of venue of any such proceeding in any such court. The Employee\nalso\nirrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers.\n3. Miscellaneous.\n(a) Governing Law. The rights of the Company under this Agreement are in addition to, not in lieu of, the rights afforded to it by law, which\nshall in no way be affected hereby. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania without giving effect to the conflicts of laws provisions thereof.\n(b) Binding Agreement; Assignment. This Agreement shall inure to the benefit of and becoming binding upon the Company, its successors and\nassigns, and Employees, his or her heirs, executors, administrators and legal representatives; provided, however, that the obligations of Employee\nhereunder may not be delegated.\n(c) Amendment Headings. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and may not\nbe changed or terminated orally. The descriptive headings of the several sections of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement.\n(d) Waiver. No waiver by any party of any breach of any term hereof shall be construed as a waiver of any subsequent breach of that term or\nany other term of the same or of a different nature.\n(e) Notices. Any notices of other communications given pursuant to this Agreement shall be in writing and shall be deemed given when\ndelivered or mailed in any general or branch office of the United States Postal Service by registered or certified mail, return receipt requested, to the\nparties' respective addresses set forth in this Agreement. Either party to this Agreement may change the aforesaid address by notice to the other party\nhereto given in the manner prescribed in this paragraph; provided, however, that notice of change of address will be effective only upon receipt.\n3\n(f) Severability.. If any court of competent jurisdiction determines that it is not possible to construe any provision of this Agreement\nconsistently with a law or public policy, and consequently holds that said provision is invalid, such holding shall in no way affect the validity of the\nother provisions of this Agreement.\n(g) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be original and all of which taken together\nshall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.\nORTHOVITA INC.\nBy: /s/ Antony Koblish\n/s/ Maarten Persenaire, M.D.\nPresident & CEO\nAddress:\n4	EX-10.4 2 dex104.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.4\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT made as of the 3rd of July 2007 (the “Agreement”), between Orthovita\nInc., a Pennsylvania corporation, with offices at 77 Great Valley Parkway, Malvern, Pennsylvania 19355 (the “Company”) and Maarten Persenaire\n(“Employee”).\nWHEREAS, the Company shall increase the salary and annual bonus opportunity for Employee effective July 3, 2007; and\nNOW THEREFORE, in consideration of such salary and bonus opportunity increase, and the mutual covenants and agreements herein\ncontained, the parties, intending to be legally bound, hereto agree as follows:\n1. Restrictive Covenants\n(a) Non-Competition. During the term of Employee’s employment with the Company, which commenced April 15, 1999 (the “Term”), and for\nthe 9- month period beginning on the date the Employee’s employment terminates, for any reason (the “Restriction Period”), the Employee hereby\nagrees that he will not, without the Company’s express written consent, engage (directly or indirectly) in any employment or business activity which\ndesigns, manufactures, sells, licenses or markets any technologies or competing products of the Company or any of its subsidiaries or affiliates, or\nwould otherwise conflict with the Employee’s employment by the Company. Such products and technologies include those products and\ntechnologies which the Company or any of its subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed or, at the time of\ntermination of Employee’s employment, may be in the process of developing, manufacturing, selling, licensing or marketing.\n(b) Non-Solicitation and Non-Hire of Company Personnel. During the Term and for the Restriction Period, the Employee hereby agrees that he\nwill not, either directly or through others, hire or attempt to hire, any current or former employee of the Company, or solicit or attempt to solicit any\ncurrent or former employee, consultant or independent contractor of the Company to change or terminate his, her or its relationship with the\nCompany or otherwise to become an employee for or of any other person or business entity, unless more than twelve months shall have elapsed\nbetween the last day of such person’s employment or service with the Company and the first date of such solicitation or hiring or attempt to solicit or\nhire.\n(c) Non-Solicitation of Customers. During the Term and for the Restriction Period, the Employee hereby agrees that he will not, either directly,\nthrough others or on behalf of third parties, solicit, divert or appropriate, or attempt to solicit, divert or appropriate any customer or actively sought\nprospective customer of the Company for the purpose of providing such customer or actively sought prospective customer with services or products\ncompetitive with those offered by the Company during the Term.\n(d) Non-Disparagement. Employee agrees that Employee will not disparage the Company, its subsidiaries and parents, and their respective\nofficers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators, or make any\npublic statement reflecting negatively on the Company, its subsidiaries and parents, and their respective officers, directors, employees, and agents,\nand its and their respective successors and assigns, heirs, executors, and administrators, to third parties, including any matters relating to the\noperation or management of the Company, irrespective of the truthfulness or falsity of such statement.\n(e) Proprietary Information. At all times during the Term and at all times thereafter, the Employee will hold in strictest confidence and will not\ndisclose, use, lecture upon or publish any of the Company’s Proprietary Information (as defined below), except as such disclosure, use or publication\nmay be required in connection with the Employee’s work for the Company, or unless the Company expressly authorizes such disclosure in writing or\ndisclosure is required by law or in a judicial or administrative proceeding, in which event the Employee shall promptly notify the Company of the\nrequired disclosure and assist the Company if it determines to resist the disclosure. “Proprietary Information” shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company, its affiliated entities and partners, including but not limited to information\nrelating to financial matters, investments, budgets, business plans, marketing plans, personnel matters, business contacts, products, processes, know-\nhow, designs, methods, improvements, discoveries, inventions, ideas, data, programs, and other works of authorship.\n(f) Invention Assignment. The Employee agrees that all inventions, innovations, improvements, developments, methods, designs, analyses,\nreports, and all similar or related information which relates to the Company’s actual or anticipated business, research and development or existing or\nfuture products or services and which are conceived, developed or made by Employee while employed by the Company (“Work Product”) belong to\nthe Company. The Employee will promptly disclose such Work Product to the Company’s Chief Executive Officer (“CEO”) or Board of Directors\n(“Board”) and perform all actions reasonably requested by the CEO or the Board (whether during or after the Term) to establish and confirm such\nownership (including, without limitation, assignments, consents, powers of attorneys and other instruments).\n(g) Return of Company Property. Upon termination of the Employee’s employment with the Company for any reason whatsoever, voluntarily\nor involuntarily, and at any earlier time the Company requests, the Employee will deliver to the person designated by the Company all originals and\ncopies of all documents and property of the Company in the Employee’s possession, under the Employee’s control or to which the Employee may\nhave access. The Employee will not reproduce or appropriate for the Employee’s own use, or for the use of others, any property, Proprietary\nInformation or Company inventions.\n2. Legal and Equitable Remedies. Because the Employee’s services are personal and unique and the Employee has had and will continue to have\naccess to and has become and will continue to become acquainted with the proprietary information of the Company, and because any breach\n2\nby the Employee of any of the restrictive covenants contained in Section 1 would result in irreparable injury and damage for which money damages\nwould not provide an adequate remedy, the Company shall have the right to enforce Section 1 and any of its provisions by injunction, specific\nperformance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach,\nor threatened breach, of the restrictive covenants set forth in Section 1. The Employee agrees that in any action in which the Company seeks\ninjunction, specific performance or other equitable relief, the Employee will not assert or contend that any of the provisions of Section 1 are\nunreasonable or otherwise unenforceable. The Employee irrevocably and unconditionally (a) agrees that any legal proceeding arising out of this\nparagraph may be brought in the United States District Court for the Eastern District of Pennsylvania, or if such court does not have jurisdiction or\nwill not accept jurisdiction, in any court of general jurisdiction in Chester County, Pennsylvania, (b) consents to the non-exclusive jurisdiction of\nsuch court in any such proceeding, and (c) waives any objection to the laying of venue of any such proceeding in any such court. The Employee also\nirrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers.\n3. Miscellaneous.\n(a) Governing Law. The rights of the Company under this Agreement are in addition to, not in lieu of, the rights afforded to it by law, which\nshall in no way be affected hereby. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania without giving effect to the conflicts of laws provisions thereof.\n(b) Binding Agreement; Assignment. This Agreement shall inure to the benefit of and becoming binding upon the Company, its successors and\nassigns, and Employees, his or her heirs, executors, administrators and legal representatives; provided, however, that the obligations of Employee\nhereunder may not be delegated.\n(c) Amendment Headings. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and may not\nbe changed or terminated orally. The descriptive headings of the several sections of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement.\n(d) Waiver. No waiver by any party of any breach of any term hereof shall be construed as a waiver of any subsequent breach of that term or\nany other term of the same or of a different nature.\n(e) Notices. Any notices of other communications given pursuant to this Agreement shall be in writing and shall be deemed given when\ndelivered or mailed in any general or branch office of the United States Postal Service by registered or certified mail, return receipt requested, to the\nparties’ respective addresses set forth in this Agreement. Either party to this Agreement may change the aforesaid address by notice to the other party\nhereto given in the manner prescribed in this paragraph; provided, however, that notice of change of address will be effective only upon receipt.\n3\n(f) Severability. If any court of competent jurisdiction determines that it is not possible to construe any provision of this Agreement\nconsistently with a law or public policy, and consequently holds that said provision is invalid, such holding shall in no way affect the validity of the\nother provisions of this Agreement.\n(g) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be original and all of which taken together\nshall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.\nORTHOVITA INC.\nBy: /s/ Antony Koblish\n/s/ Maarten Persenaire, M.D .\nPresident & CEO\nAddress:\n4
cb5b1968caa6b9a951412311bca77a9f.pdf	effective_date jurisdiction party term	EX-10.35 4 a2206536zex-10_35.htm EX-10.35\nExhibit 10.35\nEMPLOYEE NON-DISCLOSURE, NON-COMPETITION & INVENTIONS AGREEMENT\nThis Agreement made and entered into in Cambridge, Massachusetts, by Jeffrey M. Leiden, M.D., Ph.D . (the “Executive”) and Vertex\nPharmaceuticals Incorporated (the “Company”), effective as of the Executive’s first day of employment with the Company, on the 14 day of\nDecember, 2011.\nWHEREAS, the Employee acknowledges the importance to Vertex Pharmaceuticals Incorporated (the “Company”) and its Affiliates (as\nhereafter defined) of protecting the valuable Confidential Information (as hereafter defined) and goodwill that they have developed or acquired\nand their other legitimate interests.\nNOW, THEREFORE, in consideration of his initial employment with the Company and in consideration of his being granted access to\ntrade secrets and other confidential information of the Company and its Affiliates and for other good and valuable consideration, the receipt and\nsufficiency of which he hereby acknowledges, the Executive hereby agrees with the Company as follows:\n1.\nConfidentiality. The Executive acknowledges that the Company and its Affiliates continually develop Confidential\nInformation; that the Executive may develop Confidential Information for the Company and its Affiliates; and that the Executive has learned and\nwill continue to learn of Confidential Information while serving as a member of the board of directors of the Company (the “Board”) and will\nlearn of Confidential Information hereafter during the course of employment with the Company. The Executive shall comply with the policies\nand procedures of the Company for protecting Confidential Information and shall not disclose to any Person (as hereafter defined) or use, other\nthan as required for the proper performance of his duties and responsibilities to the Company and its Affiliates, or as required by applicable law\nafter notice to the Company and a reasonable opportunity for the Company to seek protection of the Confidential Information prior to disclosure,\nany Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its\nAffiliates. The Executive understands and agrees that these restrictions shall continue to apply after his employment with the Company\nterminates, regardless of the reason for such termination. The confidentiality obligation under this Section 1 shall not apply to information that is\ngenerally known or readily available to the public at the time of disclosure to the Executive or that becomes generally known or readily available\nto the public thereafter through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to the\nCompany or any of its Affiliates.\n2.\nReturn of Company Property. All documents, records, tapes and other media of every kind and description relating to the\nbusiness, present or otherwise, of the Company or any of its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or\nnot prepared by the Executive, shall be the sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all\nDocuments and shall surrender to the Company at\nthe time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents and all other\nproperty of the Company and its Affiliates then in the Executive’s possession or control.\n3.\nAssignment of Rights to Intellectual Property. The Executive shall promptly and fully disclose to the Company all\nIntellectual Property (as defined in Section 8 hereof). The Executive hereby assigns and agrees to assign to the Company (or as otherwise\ndirected by the Company) the Executive’s full right, title and interest in and to all Intellectual Property. The Executive agrees to execute any and\nall applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the\nexecution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Intellectual Property to the\nCompany and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. The Executive\nwill not charge the Company for time spent in complying with these obligations. All copyrightable works that the Executive creates shall be\nconsidered “work made for hire” and shall, upon creation, be owned exclusively by the Company.\n4.\nRestricted Activities. The Executive agrees that the following restrictions on his activities during and after his employment\nare necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Affiliates:\n(a)\nWhile the Executive is employed by the Company and for eighteen (18) months after his employment terminates,\nregardless of the basis of such termination, except as otherwise provided in Section 6(c) of the Executive’s employment agreement with the\nCompany of even date herewith, the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee,\nco-venturer or otherwise, (i) compete with the Company or any of its Immediate Affiliates (as defined in Section 8 hereof) within the United\nStates or in any other country in which the Company or any of its Immediate Affiliates markets, or is in active planning to market, any of the\nProducts or otherwise conducts or is in active planning to conduct business; (ii) undertake any planning for any business competitive with the\nProducts of the Company or any of its Immediate Affiliates; or (iii) compete, or undertake any planning to compete with, the Exclusive Licensees\n(as also defined in Section 8) with respect to those Products as to which the Exclusive Licensees are licensed by the Company or any of its\nImmediate Affiliates in those geographic areas covered by those licenses. Specifically, but without limiting the foregoing, the Executive agrees\nnot to engage in any manner in any activity that is directly or indirectly competitive or potentially competitive with the Products or with any of\nthe other business activities of the Company or any of its Immediate Affiliates conducted or under consideration at any time during the\nExecutive’s employment or his service on the Board and further agrees not to work or provide services, in any capacity, whether as an employee,\nindependent contractor or otherwise, whether with or without compensation, for or to any Person who is engaged in any business that is\ncompetitive with the business of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees (with respect to the Products\nlicensed), as conducted or in planning during the Executive’s employment. For the purposes of this Section 4, the business of the Company and\nth\nits Immediate Affiliates and the Exclusive Licensees shall include all Products and the Executive’s undertaking shall encompass all items,\nproducts and services that may be used in substitution for Products. The foregoing, however, shall not prevent the Executive’s passive ownership\nof two percent (2%) or less of the equity\n2\nsecurities of any publicly traded company; nor in any way limit him in the performance of his duties as a member of the boards of directors of\ncompanies previously disclosed to the Company or otherwise approved by the Board of Directors of the Company.\n(b)\nThe Executive agrees that, during his employment with the Company, he will not undertake any outside activity,\nwhether or not competitive with the business of the Company or any of its Immediate Affiliates, that could reasonably give rise to a conflict of\ninterest or otherwise interfere with any of his duties, responsibilities or obligations to the Company or any of its Immediate Affiliates.\n(c)\nThe Executive agrees that, during his employment with the Company and during the eighteen (18) months\nimmediately following termination of his employment, regardless of the basis of such termination, the Executive will not directly or indirectly\n(a) solicit or encourage any customer or prospective customer of the Company or any of its Immediate Affiliates or any of their Exclusive\nLicensees to terminate or diminish its relationship with the Company or any of its Immediate Affiliates; (b) seek to persuade any such customer\nor prospective customer of the Company or any of its Immediate Affiliates or any Exclusive Licensee to conduct with the Executive or any other\nPerson any business or activity that such customer, prospective customer or Exclusive Licensee conducts or could conduct with the Company or\nany of its Immediate Affiliates or (c) solicit or encourage any customer or prospective customer of any of the Exclusive Licensees for any of the\nProducts to terminate or diminish such business with the Exclusive Licensees or to conduct such business with the Executive or any other\nPerson; provided that these restrictions shall apply after termination of the Executive’s employment with the Company (y) only with respect to\nthose Persons who are or have been Exclusive Licensees or who are or have been a customer or potential customer of the Company or any of its\nImmediate Affiliates or the Exclusive Licensees at any time within the twelve (12) month period immediately preceding the Date of Termination\nor whose business has been solicited on behalf of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees by any of\ntheir employees or agents within said twelve (12) month period, other than by form letter, blanket mailing or published advertisement, and\n(z) only if the Executive has been introduced to, or otherwise had contact with, such Person as a result of his employment or other associations\nwith the Company or one of its Immediate Affiliates or one of their Exclusive Licensees or has had access to Confidential Information that would\nassist in the Executive’s solicitation of such Person in competition with the Company or one of its Immediate Affiliates or one of the Exclusive\nLicensees.\n(d)\nThe Executive agrees that during his employment (except in the course of his duties on behalf of the Company or any\nof its Immediate Affiliates) and during the eighteen (18) month period immediately following termination of his employment, regardless of the\nbasis for such termination, the Executive will not, and will not assist any other Person to, (a) hire or solicit for hiring any employee of the\nCompany or any of its Immediate Affiliates or any of the Exclusive Licensees or seek to persuade any employee of the Company or any of its\nImmediate Affiliates or any of the Exclusive Licensees to discontinue employment or (b) solicit or encourage any independent contractor\nproviding services to the Company or any of its Immediate Affiliates or any of the Exclusive Licensees to terminate or diminish its relationship\nwith them. For the purposes of the Executive’s obligations hereunder following termination of his employment with the Company, an\n“employee” of the Company or any of its Immediate\n3\nAffiliates or any of the Exclusive Licensees or an “independent contractor” providing services to the Company or any of its Immediate Affiliates\nor any of the Exclusive Licensees is any Person who was such at any time during the twelve (12) months preceding the Date of Termination.\n5.\nNotification Requirement. During the eighteen (18) months immediately following the Date of Termination, the Executive\nshall give notice to the Company prior to beginning employment or a consulting position stating the name and address of the Person for whom\nsuch employment or consulting is undertaken and the nature of the Executive’s position with such Person. The Executive agrees to also provide\nthe Company with such other pertinent information as the Company may reasonably request in order to determine the Executive’s continued\ncompliance with his surviving obligations under Sections 1, 3 and 4 hereof.\n6.\nEnforcement of Covenants. The Executive acknowledges that he has carefully read and considered all the terms and\nconditions of this Agreement, including the restraints imposed on him pursuant to Sections 1, 3 and 4 hereof. The Executive agrees without\nreservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the goodwill, Confidential\nInformation and other legitimate interests of the Company and its Immediate Affiliates; that each and every one of those restraints is reasonable\nin respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him\nfrom obtaining other suitable employment during the period in which the Executive is bound by these restraints. The Executive further agrees\nthat he will not assert, or permit to be asserted on his behalf, in any forum, any position contrary to the foregoing. The Executive further\nacknowledges that, were he to breach any of the covenants contained in Section 1, 3 or 4 hereof, the damage to the Company would be\nirreparable. The Executive therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary\nand permanent injunctive relief against any breach or threatened breach by the Executive of any of said covenants, without having to post bond.\nThe parties further agree that, in the event that any provision of Section 1, 3 or 4 hereof shall be determined by any court of competent\njurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of\nactivities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n7.\nConflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the\nperformance of his obligations hereunder will not breach or be in conflict with any other agreement to which the Executive is a party or is bound\nand that the Executive is not now subject to any covenants against competition or similar covenants or any court order or other legal obligation\nthat would affect the performance of his obligations hereunder. The Executive agrees not to disclose to or use on behalf of the Company or any\nof its Affiliates any proprietary information of a prior employer or other Person without such Person’s consent.\n8.\nDefinitions. Words or phrases which are initially capitalized or are within quotation marks shall have the meanings provided\nin this Section and as provided elsewhere herein. For purposes of this Agreement, the following definitions apply:\n4\n(a)\n“Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under common control\nwith the Company, where control may be by management authority, contract or equity interest.\n(b)\n“Confidential Information” means any and all information of the Company and its Affiliates that is not generally\nknown by Persons with whom the Company or any of its Affiliates competes or does business, or with whom the Company or any of its\nAffiliates plans to compete or do business and any and all information, publicly known in whole or in part or not, that, if disclosed by the\nCompany or any of its Affiliates, would assist in competition against them. Confidential Information includes without limitation such\ninformation relating to (i) the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates,\n(ii) the Products, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity\nand special needs of the customers of the Company and its Affiliates and (v) the people and organizations with whom the Company and its\nAffiliates have business relationships and the nature and substance of those relationships. Confidential Information also includes any and all\ninformation received by the Company or any of its Affiliates belonging to any customer or other Person with any understanding, express or\nimplied, that the information would not be disclosed.\n(c)\n“Date of Termination” means the date the Executive’s employment with the Company terminates, regardless of the\nreason for such termination, and, for the avoidance of doubt, whether occurring pursuant to the employment agreement between the Company\nand the Executive of even date herewith or otherwise.\n(d)\n“Exclusive Licensees” means those Persons licensed by the Company and/or by one or more of its Immediate\nAffiliates to distribute in specific geographic areas one or more of the Products.\n(e)\n“Immediate Affiliates” means the Company’s direct and indirect subsidiaries, the Company’s direct and indirect\nparents and their direct and indirect subsidiaries.\n(f)\n“Intellectual Property” means inventions, discoveries, developments, methods, processes, compositions, works,\nconcepts and ideas (whether or not patentable or copyrightable or registrable under any comparable law or constituting trade secrets) conceived,\nmade, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business hours or\non or off Company premises) during the Executive’s service on the Board or his employment with the Company or any of its Immediate\nAffiliates or that relate to the Products or to any prospective activity of the Company or any of its Immediate Affiliates or to any work performed\nby the Executive for the Company or any of its Immediate Affiliates or that make use of Confidential Information or any of the equipment or\nfacilities of the Company or any of its Immediate Affiliates.\n(g)\n“Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a\ntrust and any other entity or organization, other than the Company or any of its Affiliates.\n5\n(h)\n“Products” mean all products planned, researched, developed, tested, manufactured, sold, licensed, leased or\notherwise distributed or put into use by the Company or any of its Immediate Affiliates, together with all services provided or planned by the\nCompany or any of its Immediate Affiliates, during the Executive’s employment or during the period of his service on the Board that preceded\nthe Commencement Date.\n9.\nAssignment. Neither the Company nor the Executive may make any assignment of this Agreement or any interest in it, by\noperation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and\nobligations under this Agreement without the Executive’s consent in the event that the Company shall hereafter affect a reorganization,\nconsolidate with, or merge into any Person or transfer to any Person all or substantially all of the business, properties or assets of the Company.\nThis Agreement shall inure to the benefit of and be binding upon the Executive and the Company, and each of their respective successors,\nexecutors, administrators, heirs, representatives and permitted assigns. The Executive also agree that each of the Company’s Affiliates shall have\nthe right to enforce all of his obligations to that Affiliate under this Agreement. The Executive hereby expressly consents to be bound by the\nprovisions of this Agreement for the benefit of the Company and of any successor or permitted assign to whose employ the Executive may be\ntransferred, without the necessity that this Agreement be re-signed at the time of such transfer.\n10.\nSeverability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court\nof competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those\nas to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be\nvalid and enforceable to the fullest extent permitted by law.\n11.\nNotices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing\nand shall be effective when delivered in person, consigned to a reputable national courier service or deposited in the United States mail, postage\nprepaid, and addressed to the Executive at his last known address on the books of the Company or, in the case of the Company, at its principal\nplace of business in Cambridge, Massachusetts, attention of the Senior Vice President of Human Resources with a copy to the Office of the\nGeneral Counsel of the Company, or to such other address as either party may specify by notice to the other actually received.\n12.\nNot a Contract for a Fixed Term. The Executive acknowledges and agrees that this Agreement does not in any way obligate\nthe Company to retain his services for a fixed period or at a fixed level of compensation; nor does it in any way restrict his right or that of the\nCompany to terminate his employment at any time, with or without notice or cause.\n13.\nEntire Agreement; Amendments; Waivers; Survival. This Agreement sets forth the entire agreement between the Executive\nand the Company and supersedes all prior and contemporaneous communications, agreements and understandings, written or oral, with respect to\nthe subject matter hereof; provided, however, that this Agreement shall not terminate or supersede the employment agreement between the\nExecutive and the Company of even date herewith; nor shall it supersede any confidentiality or other obligations the Executive may have\n6\nin connection with his service on the Board. This Agreement may not be modified or amended, and no breach shall be deemed to be waived,\nunless agreed to in writing by the Executive and an expressly authorized member of the Board. If any provision of this Agreement should, for\nany reason, be held invalid or unenforceable in any respect, it shall not affect any other provisions, and shall be construed by limiting it so as to\nbe enforceable to the maximum extent permissible by law. Provisions of this Agreement shall survive any termination of the Executive’s\nemployment to the extent so provided in this Agreement or if necessary or desirable to accomplish the purpose of other surviving provisions.\n14.\nHeadings and Counterparts. The headings and captions in this Agreement are for convenience only and in no way define or\ndescribe the scope or content of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which\nshall be an original and all of which together shall constitute one and the same instrument.\n15.\nGoverning Law. This is a Massachusetts contract and shall be construed and enforced under and be governed in all respects by\nthe laws of The Commonwealth of Massachusetts, without regard to the conflict of laws principles thereof.\n16.\nExecutive’s Representations. In signing this Agreement, the Executive represents and warrants to the Company that he has\nread and understood all of its terms; that he has had a full and reasonable opportunity to consider its terms and to consult with an attorney and\nany person of his choosing before signing, if he wished to do so; that he has not relied on any agreements or representations, express or implied,\nconcerning the subject matter hereof that are not set forth expressly in this Agreement; and that he has signed this Agreement knowingly and\nvoluntarily.\nIntending to be legally bound hereby, the Executive has signed this Agreement under seal to take effect as of the date first written above.\nTHE EXECUTIVE:\nSignature: /s/ Jeffrey M. Leiden\nJeffrey M. Leiden, M.D., Ph.D.\nAccepted and Agreed:\nVERTEX PHARMACEUTICALS INCORPORATED\nBy: /s/ Matthew W. Emmens\nMatthew W. Emmens\nPresident, Chairman and CEO\n7	EX-10.35 4 a2206536zex-10_35.htm EX-10.35\nExhibit 10.35\nEMPLOYEE NON-DISCLOSURE, NON-COMPETITION & INVENTIONS AGREEMENT\nThis Agreement made and entered into in Cambridge, Massachusetts, by Jeffrey M. Leiden, M.D., Ph.D. (the “Executive”) and Vertex\nPharmaceuticals Incorporated (the “Company™), effective as of the Executive’s first day of employment with the Company, on the 14" day of\nDecember, 2011.\nWHEREAS, the Employee acknowledges the importance to Vertex Pharmaceuticals Incorporated (the “Company”) and its Affiliates (as\nhereafter defined) of protecting the valuable Confidential Information (as hereafter defined) and goodwill that they have developed or acquired\nand their other legitimate interests.\nNOW, THEREFORE, in consideration of his initial employment with the Company and in consideration of his being granted access to\ntrade secrets and other confidential information of the Company and its Affiliates and for other good and valuable consideration, the receipt and\nsufficiency of which he hereby acknowledges, the Executive hereby agrees with the Company as follows:\n1. Confidentiality. The Executive acknowledges that the Company and its Affiliates continually develop Confidential\nInformation; that the Executive may develop Confidential Information for the Company and its Affiliates; and that the Executive has learned and\nwill continue to learn of Confidential Information while serving as a member of the board of directors of the Company (the “Board”) and will\nlearn of Confidential Information hereafter during the course of employment with the Company. The Executive shall comply with the policies\nand procedures of the Company for protecting Confidential Information and shall not disclose to any Person (as hereafter defined) or use, other\nthan as required for the proper performance of his duties and responsibilities to the Company and its Affiliates, or as required by applicable law\nafter notice to the Company and a reasonable opportunity for the Company to seek protection of the Confidential Information prior to disclosure,\nany Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its\nAffiliates. The Executive understands and agrees that these restrictions shall continue to apply after his employment with the Company\nterminates, regardless of the reason for such termination. The confidentiality obligation under this Section 1 shall not apply to information that is\ngenerally known or readily available to the public at the time of disclosure to the Executive or that becomes generally known or readily available\nto the public thereafter through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to the\nCompany or any of its Affiliates.\n2. Return of Company Property. All documents, records, tapes and other media of every kind and description relating to the\nbusiness, present or otherwise, of the Company or any of its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or\nnot prepared by the Executive, shall be the sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all\nDocuments and shall surrender to the Company at\n \nthe time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents and all other\nproperty of the Company and its Affiliates then in the Executive’s possession or control.\n3. Assignment of Rights to Intellectual Property. The Executive shall promptly and fully disclose to the Company all\nIntellectual Property (as defined in Section 8 hereof). The Executive hereby assigns and agrees to assign to the Company (or as otherwise\ndirected by the Company) the Executive’s full right, title and interest in and to all Intellectual Property. The Executive agrees to execute any and\nall applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the\nexecution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Intellectual Property to the\nCompany and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. The Executive\nwill not charge the Company for time spent in complying with these obligations. All copyrightable works that the Executive creates shall be\nconsidered “work made for hire” and shall, upon creation, be owned exclusively by the Company.\n4. Restricted Activities. The Executive agrees that the following restrictions on his activities during and after his employment\nare necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Affiliates:\n(a) While the Executive is employed by the Company and for eighteen (18) months after his employment terminates,\nregardless of the basis of such termination, except as otherwise provided in Section 6(c) of the Executive’s employment agreement with the\nCompany of even date herewith, the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee,\nco-venturer or otherwise, (i) compete with the Company or any of its Immediate Affiliates (as defined in Section 8 hereof) within the United\nStates or in any other country in which the Company or any of its Immediate Affiliates markets, or is in active planning to market, any of the\nProducts or otherwise conducts or is in active planning to conduct business; (ii) undertake any planning for any business competitive with the\nProducts of the Company or any of its Immediate Affiliates; or (iii) compete, or undertake any planning to compete with, the Exclusive Licensees\n(as also defined in Section 8) with respect to those Products as to which the Exclusive Licensees are licensed by the Company or any of its\nImmediate Affiliates in those geographic areas covered by those licenses. Specifically, but without limiting the foregoing, the Executive agrees\nnot to engage in any manner in any activity that is directly or indirectly competitive or potentially competitive with the Products or with any of\nthe other business activities of the Company or any of its Immediate Affiliates conducted or under consideration at any time during the\nExecutive’s employment or his service on the Board and further agrees not to work or provide services, in any capacity, whether as an employee,\nindependent contractor or otherwise, whether with or without compensation, for or to any Person who is engaged in any business that is\ncompetitive with the business of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees (with respect to the Products\nlicensed), as conducted or in planning during the Executive’s employment. For the purposes of this Section 4, the business of the Company and\nits Immediate Affiliates and the Exclusive Licensees shall include all Products and the Executive’s undertaking shall encompass all items,\nproducts and services that may be used in substitution for Products. The foregoing, however, shall not prevent the Executive’s passive ownership\nof two percent (2%) or less of the equity\n \nsecurities of any publicly traded company; nor in any way limit him in the performance of his duties as a member of the boards of directors of\ncompanies previously disclosed to the Company or otherwise approved by the Board of Directors of the Company.\n(b) The Executive agrees that, during his employment with the Company, he will not undertake any outside activity,\nwhether or not competitive with the business of the Company or any of its Immediate Affiliates, that could reasonably give rise to a conflict of\ninterest or otherwise interfere with any of his duties, responsibilities or obligations to the Company or any of its Immediate Affiliates.\n(0 The Executive agrees that, during his employment with the Company and during the eighteen (18) months\nimmediately following termination of his employment, regardless of the basis of such termination, the Executive will not directly or indirectly\n(a) solicit or encourage any customer or prospective customer of the Company or any of its Immediate Affiliates or any of their Exclusive\nLicensees to terminate or diminish its relationship with the Company or any of its Immediate Affiliates; (b) seek to persuade any such customer\nor prospective customer of the Company or any of its Immediate Affiliates or any Exclusive Licensee to conduct with the Executive or any other\nPerson any business or activity that such customer, prospective customer or Exclusive Licensee conducts or could conduct with the Company or\nany of its Immediate Affiliates or (c) solicit or encourage any customer or prospective customer of any of the Exclusive Licensees for any of the\nProducts to terminate or diminish such business with the Exclusive Licensees or to conduct such business with the Executive or any other\nPerson; provided that these restrictions shall apply after termination of the Executive’s employment with the Company (y) only with respect to\nthose Persons who are or have been Exclusive Licensees or who are or have been a customer or potential customer of the Company or any of its\nImmediate Affiliates or the Exclusive Licensees at any time within the twelve (12) month period immediately preceding the Date of Termination\nor whose business has been solicited on behalf of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees by any of\ntheir employees or agents within said twelve (12) month period, other than by form letter, blanket mailing or published advertisement, and\n(z) only if the Executive has been introduced to, or otherwise had contact with, such Person as a result of his employment or other associations\nwith the Company or one of its Immediate Affiliates or one of their Exclusive Licensees or has had access to Confidential Information that would\nassist in the Executive’s solicitation of such Person in competition with the Company or one of its Immediate Affiliates or one of the Exclusive\nLicensees.\n(d) The Executive agrees that during his employment (except in the course of his duties on behalf of the Company or any\nof its Immediate Affiliates) and during the eighteen (18) month period immediately following termination of his employment, regardless of the\nbasis for such termination, the Executive will not, and will not assist any other Person to, (a) hire or solicit for hiring any employee of the\nCompany or any of its Immediate Affiliates or any of the Exclusive Licensees or seek to persuade any employee of the Company or any of its\nImmediate Affiliates or any of the Exclusive Licensees to discontinue employment or (b) solicit or encourage any independent contractor\nproviding services to the Company or any of its Immediate Affiliates or any of the Exclusive Licensees to terminate or diminish its relationship\nwith them. For the purposes of the Executive’s obligations hereunder following termination of his employment with the Company, an\n“employee” of the Company or any of its Immediate\n \nAffiliates or any of the Exclusive Licensees or an “independent contractor” providing services to the Company or any of its Inmediate Affiliates\nor any of the Exclusive Licensees is any Person who was such at any time during the twelve (12) months preceding the Date of Termination.\n5. Notification Requirement. During the eighteen (18) months immediately following the Date of Termination, the Executive\nshall give notice to the Company prior to beginning employment or a consulting position stating the name and address of the Person for whom\nsuch employment or consulting is undertaken and the nature of the Executive’s position with such Person. The Executive agrees to also provide\nthe Company with such other pertinent information as the Company may reasonably request in order to determine the Executive’s continued\ncompliance with his surviving obligations under Sections 1, 3 and 4 hereof.\n6. Enforcement of Covenants. The Executive acknowledges that he has carefully read and considered all the terms and\nconditions of this Agreement, including the restraints imposed on him pursuant to Sections 1, 3 and 4 hereof. The Executive agrees without\nreservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the goodwill, Confidential\nInformation and other legitimate interests of the Company and its Immediate Affiliates; that each and every one of those restraints is reasonable\nin respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him\nfrom obtaining other suitable employment during the period in which the Executive is bound by these restraints. The Executive further agrees\nthat he will not assert, or permit to be asserted on his behalf, in any forum, any position contrary to the foregoing. The Executive further\nacknowledges that, were he to breach any of the covenants contained in Section 1, 3 or 4 hereof, the damage to the Company would be\nirreparable. The Executive therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary\nand permanent injunctive relief against any breach or threatened breach by the Executive of any of said covenants, without having to post bond.\nThe parties further agree that, in the event that any provision of Section 1, 3 or 4 hereof shall be determined by any court of competent\njurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of\nactivities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n7. Conflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the\nperformance of his obligations hereunder will not breach or be in conflict with any other agreement to which the Executive is a party or is bound\nand that the Executive is not now subject to any covenants against competition or similar covenants or any court order or other legal obligation\nthat would affect the performance of his obligations hereunder. The Executive agrees not to disclose to or use on behalf of the Company or any\nof its Affiliates any proprietary information of a prior employer or other Person without such Person’s consent.\n8. Definitions. Words or phrases which are initially capitalized or are within quotation marks shall have the meanings provided\nin this Section and as provided elsewhere herein. For purposes of this Agreement, the following definitions apply:\n4\n \n(a) “Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under common control\nwith the Company, where control may be by management authority, contract or equity interest.\n(b) “Confidential Information” means any and all information of the Company and its Affiliates that is not generally\nknown by Persons with whom the Company or any of its Affiliates competes or does business, or with whom the Company or any of its\nAffiliates plans to compete or do business and any and all information, publicly known in whole or in part or not, that, if disclosed by the\nCompany or any of its Affiliates, would assist in competition against them. Confidential Information includes without limitation such\ninformation relating to (i) the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates,\n(ii) the Products, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity\nand special needs of the customers of the Company and its Affiliates and (v) the people and organizations with whom the Company and its\nAffiliates have business relationships and the nature and substance of those relationships. Confidential Information also includes any and all\ninformation received by the Company or any of its Affiliates belonging to any customer or other Person with any understanding, express or\nimplied, that the information would not be disclosed.\n(0 “Date of Termination” means the date the Executive’s employment with the Company terminates, regardless of the\nreason for such termination, and, for the avoidance of doubt, whether occurring pursuant to the employment agreement between the Company\nand the Executive of even date herewith or otherwise.\n(d) “Exclusive Licensees” means those Persons licensed by the Company and/or by one or more of its Immediate\nAffiliates to distribute in specific geographic areas one or more of the Products.\n(e) “Immediate Affiliates” means the Company’s direct and indirect subsidiaries, the Company’s direct and indirect\nparents and their direct and indirect subsidiaries.\n® “Intellectual Property” means inventions, discoveries, developments, methods, processes, compositions, works,\nconcepts and ideas (whether or not patentable or copyrightable or registrable under any comparable law or constituting trade secrets) conceived,\nmade, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business hours or\non or off Company premises) during the Executive’s service on the Board or his employment with the Company or any of its Immediate\nAffiliates or that relate to the Products or to any prospective activity of the Company or any of its Immediate Affiliates or to any work performed\nby the Executive for the Company or any of its Immediate Affiliates or that make use of Confidential Information or any of the equipment or\nfacilities of the Company or any of its Immediate Affiliates.\n(8 “Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a\ntrust and any other entity or organization, other than the Company or any of its Affiliates.\n5\n \n(h) “Products” mean all products planned, researched, developed, tested, manufactured, sold, licensed, leased or\notherwise distributed or put into use by the Company or any of its Immediate Affiliates, together with all services provided or planned by the\nCompany or any of its Immediate Affiliates, during the Executive’s employment or during the period of his service on the Board that preceded\nthe Commencement Date.\n9. Assignment. Neither the Company nor the Executive may make any assignment of this Agreement or any interest in it, by\noperation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and\nobligations under this Agreement without the Executive’s consent in the event that the Company shall hereafter affect a reorganization,\nconsolidate with, or merge into any Person or transfer to any Person all or substantially all of the business, properties or assets of the Company.\nThis Agreement shall inure to the benefit of and be binding upon the Executive and the Company, and each of their respective successors,\nexecutors, administrators, heirs, representatives and permitted assigns. The Executive also agree that each of the Company’s Affiliates shall have\nthe right to enforce all of his obligations to that Affiliate under this Agreement. The Executive hereby expressly consents to be bound by the\nprovisions of this Agreement for the benefit of the Company and of any successor or permitted assign to whose employ the Executive may be\ntransferred, without the necessity that this Agreement be re-signed at the time of such transfer.\n10. Severability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court\nof competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those\nas to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be\nvalid and enforceable to the fullest extent permitted by law.\n11. Notices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing\nand shall be effective when delivered in person, consigned to a reputable national courier service or deposited in the United States mail, postage\nprepaid, and addressed to the Executive at his last known address on the books of the Company or, in the case of the Company, at its principal\nplace of business in Cambridge, Massachusetts, attention of the Senior Vice President of Human Resources with a copy to the Office of the\nGeneral Counsel of the Company, or to such other address as either party may specify by notice to the other actually received.\n12. Not a Contract for a Fixed Term. The Executive acknowledges and agrees that this Agreement does not in any way obligate\nthe Company to retain his services for a fixed period or at a fixed level of compensation; nor does it in any way restrict his right or that of the\nCompany to terminate his employment at any time, with or without notice or cause.\n13. Entire Agreement; Amendments; Waivers; Survival. This Agreement sets forth the entire agreement between the Executive\nand the Company and supersedes all prior and contemporaneous communications, agreements and understandings, written or oral, with respect to\nthe subject matter hereof; provided, however, that this Agreement shall not terminate or supersede the employment agreement between the\nExecutive and the Company of even date herewith; nor shall it supersede any confidentiality or other obligations the Executive may have\n6\n \nin connection with his service on the Board. This Agreement may not be modified or amended, and no breach shall be deemed to be waived,\nunless agreed to in writing by the Executive and an expressly authorized member of the Board. If any provision of this Agreement should, for\nany reason, be held invalid or unenforceable in any respect, it shall not affect any other provisions, and shall be construed by limiting it so as to\nbe enforceable to the maximum extent permissible by law. Provisions of this Agreement shall survive any termination of the Executive’s\nemployment to the extent so provided in this Agreement or if necessary or desirable to accomplish the purpose of other surviving provisions.\n14. Headings and Counterparts. The headings and captions in this Agreement are for convenience only and in no way define or\ndescribe the scope or content of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which\nshall be an original and all of which together shall constitute one and the same instrument.\n15. Governing Law. This is a Massachusetts contract and shall be construed and enforced under and be governed in all respects by\nthe laws of The Commonwealth of Massachusetts, without regard to the conflict of laws principles thereof.\n16. Executive’s Representations. In signing this Agreement, the Executive represents and warrants to the Company that he has\nread and understood all of its terms; that he has had a full and reasonable opportunity to consider its terms and to consult with an attorney and\nany person of his choosing before signing, if he wished to do so; that he has not relied on any agreements or representations, express or implied,\nconcerning the subject matter hereof that are not set forth expressly in this Agreement; and that he has signed this Agreement knowingly and\nvoluntarily.\nIntending to be legally bound hereby, the Executive has signed this Agreement under seal to take effect as of the date first written above.\nTHE EXECUTIVE:\nSignature: /s/ Jeffrey M. Leiden\nJeffrey M. Leiden, M.D., Ph.D.\nAccepted and Agreed:\nVERTEX PHARMACEUTICALS INCORPORATED\nBy: /s/ Matthew W. Emmens\nMatthew W. Emmens\nPresident, Chairman and CEO\n	EX-10.35 4 a2206536zex-10_35.htm EX-10.35\nExhibit 10.35\nEMPLOYEE NON-DISCLOSURE NON-COMPETITION & INVENTIONS AGREEMENT\nThis Agreement made and entered into in Cambridge, Massachusetts, by Jeffrey M. Leiden, M.D., Ph.D. (the "Executive") and Vertex\nPharmaceuticals Incorporated (the "Company."), effective as of the Executive's first day of employment with the Company, on the 14th day of\nDecember, 2011.\nWHEREAS, the Employee acknowledges the importance to Vertex Pharmaceuticals Incorporated (the "Company.") and its Affiliates (as\nhereafter defined) of protecting the valuable Confidential Information (as hereafter defined) and goodwill that they have developed or acquired\nand their other legitimate interests.\nNOW, THEREFORE, in consideration of his initial employment with the Company and in consideration of his being granted access to\ntrade secrets and other confidential information of the Company and its Affiliates and for other good and valuable consideration, the receipt and\nsufficiency of which he hereby acknowledges, the Executive hereby agrees with the Company as follows:\n1.\nConfidentiality. The Executive acknowledges that the Company and its Affiliates continually develop Confidential\nInformation; that the Executive may develop Confidential Information for the Company and its Affiliates; and that the Executive has learned and\nwill\ncontinue to learn of Confidentia Information while serving as a member of the board of directors of the Company (the "Board") and will\nlearn of Confidential Information hereafter during the course of employment with the Company. The Executive shall comply with the policies\nand procedures of the Company for protecting Confidential Information and shall not disclose to any Person (as hereafter defined) or use, other\nthan\nas\nrequired for the proper performance of his duties and responsibilities to the Company and its Affiliates, or as required by applicable\nlaw\nafter notice to the Company and a reasonable opportunity for the Company to seek protection of the Confidential Information prior to disclosure,\nany Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its\nAffiliates. The Executive understands and agrees that these restrictions shall continue to apply after his employment with the Company\nterminates, regardless of the reason for such termination. The confidentiality obligation under this Section 1 shall not apply to information that is\ngenerally known or readily available to the public at the time of disclosure to the Executive or that becomes generally known or readily available\nto the public thereafter through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to the\nCompany or any of its Affiliates.\n2.\nReturn of Company Property.. All documents, records, tapes and other media of every kind and description relating to the\nbusiness, present or otherwise, of the Company or any of its Affiliates and any copies, in whole or in part, thereof (the "Documents"), whether or\nnot prepared by the Executive, shall be the sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all\nDocuments and shall surrender to the Company at\nthe time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents and all other\nproperty of the Company and its Affiliates then in the Executive's possession or control.\n3.\nAssignment of Rights to Intellectual Property.. The Executive shall promptly and fully disclose to the Company all\nIntellectual Property (as defined in Section 8 hereof). The Executive hereby assigns and agrees to assign to the Company (or as otherwise\ndirected by the Company) the Executive's full right, title and interest in and to all Intellectual Property. The Executive agrees to execute any\nand\nall\napplications\nfor\ndomestic\nand\nforeign\npatents,\ncopyrights\nor\nother\nproprietary\nrights\nand\nto\ndo\nsuch\nother\nacts\n(including\nwithout\nlimitation\nthe\nexecution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Intellectual Property to the\nCompany and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. The Executive\nwill not charge the Company for time spent in complying with these obligations. All copyrightable works that the Executive creates shall be\nconsidered "work made for hire" and shall, upon creation, be owned exclusively by the Company.\n4.\nRestricted Activities. The Executive agrees that the following restrictions on his activities during and after his employment\nare necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Affiliates:\n(a)\nWhile the Executive is employed by the Company and for eighteen (18) months after his employment terminates,\nregardless of the basis of such termination, except as otherwise provided in Section 6(c) of the Executive's employment agreement with the\nCompany of even date herewith, the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee,\nco-venturer or otherwise, (i) compete with the Company or any of its Immediate Affiliates (as defined in Section 8 hereof) within the United\nStates or in any other country in which the Company or any of its Immediate Affiliates markets, or is in active planning to market, any of the\nProducts or otherwise conducts or is in active planning to conduct business; (ii) undertake any planning for any business competitive with the\nProducts of the Company or any of its Immediate Affiliates; or (iii) compete, or undertake any planning to compete with, the Exclusive Licensees\n(as also defined in Section 8) with respect to those Products as to which the Exclusive Licensees are licensed by the Company or any of its\nImmediate Affiliates in those geographic areas covered by those licenses. Specifically, but without limiting the foregoing, the Executive agrees\nnot to engage in any manner in any activity that is directly or indirectly competitive or potentially competitive with the Products or with any\nof\nthe other business activities of the Company or any of its Immediate Affiliates conducted or under consideration at any time during the\nExecutive's employment or his service on the Board and further agrees not to work or provide services, in any capacity, whether as an employee,\nindependent contractor or otherwise, whether with or without compensation, for or to any Person who is engaged in any business that is\ncompetitive with the business of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees (with respect to the Products\nlicensed), as conducted or in planning during the Executive's employment. For the purposes of this Section 4, the business of the Company\nand\nits Immediate Affiliates and the Exclusive Licensees shall include all Products and the Executive's undertaking shall encompass all items,\nproducts and services that may be used in substitution for Products. The foregoing, however, shall not prevent the Executive's passive ownership\nof two percent (2%) or less of the equity\n2\nsecurities of any publicly traded company; nor in any way limit him in the performance of his duties as a member of the boards of directors of\ncompanies previously disclosed to the Company or otherwise approved by the Board of Directors of the Company.\n(b)\nThe Executive agrees that, during his employment with the Company, he will not undertake any outside activity,\nwhether or not competitive with the business of the Company or any of its Immediate Affiliates, that could reasonably give rise to a conflict of\ninterest or otherwise interfere with any of his duties, responsibilities or obligations to the Company or any of its Immediate Affiliates.\n(c)\nThe Executive agrees that, during his employment with the Company and during the eighteen (18) months\nimmediately following termination of his employment, regardless of the basis of such termination, the Executive will not directly or indirectly\n(a) solicit or encourage any customer or prospective customer of the Company or any of its Immediate Affiliates or any of their Exclusive\nLicensees to terminate or diminish its relationship with the Company or any of its Immediate Affiliates; (b) seek to persuade any such customer\nor prospective customer of the Company or any of its Immediate Affiliates or any Exclusive Licensee to conduct with the Executive or any other\nPerson any business or activity that such customer, prospective customer or Exclusive Licensee conducts or could conduct with the Company or\nany of its Immediate Affiliates or (c) solicit or encourage any customer or prospective customer of any of the Exclusive Licensees for any of the\nProducts to terminate or diminish such business with the Exclusive Licensees or to conduct such business with the Executive or any other\nPerson; provided that these restrictions shall apply after termination of the Executive's employment with the Company (y) only with respect\nto\nthose Persons who are or have been Exclusive Licensees or who are or have been a customer or potential customer of the Company or any of its\nImmediate Affiliates or the Exclusive Licensees at any time within the twelve (12) month period immediately preceding the Date of Termination\nor whose business has been solicited on behalf of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees by any of\ntheir employees or agents within said twelve (12) month period, other than by form letter, blanket mailing or published advertisement, and\n(z)\nonly\nif the Executive has been introduced to, or otherwise had contact with, such Person as a result of his employment or other associations\nwith the Company or one of its Immediate Affiliates or one of their Exclusive Licensees or has had access to Confidential Information that would\nassist in the Executive's solicitation of such Person in competition with the Company or one of its Immediate Affiliates or one of the Exclusive\nLicensees.\n(d)\nThe Executive agrees that during his employment (except in the course of his duties on behalf of the Company\nor\nany\nof\nits\nImmediate\nAffiliates)\nand\nduring\nthe\neighteen\n(18)\nmonth\nperiod\nimmediately\nfollowing\ntermination\nof\nhis\nemployment,\nregardless\nof\nthe\nbasis for such termination, the Executive will not, and will not assist any other Person to, (a) hire or solicit for hiring any employee of the\nCompany or any of its Immediate Affiliates or any of the Exclusive Licensees or seek to persuade any employee of the Company or any of its\nImmediate Affiliates or any of the Exclusive Licensees to discontinue employment or (b) solicit or encourage any independent contractor\nproviding services to the Company or any of its Immediate Affiliates or any of the Exclusive Licensees to terminate or diminish its relationship\nwith them. For the purposes of the Executive's obligations hereunder following termination of his employment with the Company, an\n"employee" of the Company or any of its Immediate\n3\nAffiliates or any of the Exclusive Licensees or an "independent contractor" providing services to the Company or any of its Immediate Affiliates\nor any of the Exclusive Licensees is any Person who was such at any time during the twelve (12) months preceding the Date of Termination.\n5.\nNotification Requirement. During the eighteen (18) months immediately following the Date of Termination, the Executive\nshall give notice to the Company prior to beginning employment or a consulting position stating the name and address of the Person for whom\nsuch employment or consulting is undertaken and the nature of the Executive's position with such Person. The Executive agrees to also\nprovide\nthe Company with such other pertinent information as the Company may reasonably request in order to determine the Executive's continued\ncompliance with his surviving obligations under Sections 1, 3 and 4 hereof.\n6.\nEnforcement of Covenants. The Executive acknowledges that he has carefully read and considered all the terms and\nconditions of this Agreement, including the restraints imposed on him pursuant to Sections 1, 3 and 4 hereof. The Executive agrees without\nreservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the goodwill, Confidentia\nInformation and other legitimate interests of the Company and its Immediate Affiliates; that each and every one of those restraints is reasonable\nin respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him\nfrom obtaining other suitable employment during the period in which the Executive is bound by these restraints. The Executive further agrees\nthat he will not assert, or permit to be asserted on his behalf, in any forum, any position contrary to the foregoing. The Executive further\nacknowledges that, were he to breach any of the covenants contained in Section 1, 3 or 4 hereof, the damage to the Company would be\nirreparable. The Executive therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary\nand permanent injunctive relief against any breach or threatened breach by the Executive of any of said covenants, without having to post bond.\nThe parties further agree that, in the event that any provision of Section 1, 3 or 4 hereof shall be determined by any court of competent\njurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range\nof\nactivities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n7.\nConflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the\nperformance of his obligations hereunder will not breach or be in conflict with any other agreement to which the Executive is a party or is bound\nand that the Executive is not now subject to any covenants against competition or similar covenants or any court order or other legal obligation\nthat would affect the performance of his obligations hereunder. The Executive agrees not to disclose to or use on behalf of the Company or any\nof its Affiliates any proprietary information of a prior employer or other Person without such Person's consent.\n8.\nDefinitions. Words or phrases which are initially capitalized or are within quotation marks shall have the meanings provided\nin this Section and as provided elsewhere herein. For purposes of this Agreement, the following definitions apply:\n4\n(a)\n"Affiliates" means all persons and entities directly or indirectly controlling, controlled by or under common control\nwith the Company, where control may be by management authority, contract or equity interest.\n(b)\n"Confidential Information" means any and all information of the Company and its Affiliates that is not generally\nknown by Persons with whom the Company or any of its Affiliates competes or does business, or with whom the Company or any of its\nAffiliates plans to compete or do business and any and all information, publicly known in whole or in part or not, that, if disclosed by\nthe\nCompany or any of its Affiliates, would assist in competition against them. Confidential Information includes without limitation such\ninformation relating to (i) the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates,\n(ii) the Products, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity\nand special needs of the customers of the Company and its Affiliates and (v) the people and organizations with whom the Company and its\nAffiliates have business relationships and the nature and substance of those relationships. Confidential Information also includes any and all\ninformation received by the Company or any of its Affiliates belonging to any customer or other Person with any understanding, express\nor\nimplied, that the information would not be disclosed.\n(c)\n"Date of Termination" means the date the Executive's employment with the Company terminates, regardless of the\nreason for such termination, and, for the avoidance of doubt, whether occurring pursuant to the employment agreement between the Company\nand the Executive of even date herewith or otherwise.\n(d)\n"Exclusive Licensees" means those Persons licensed by the Company and/or by one or more of its Immediate\nAffiliates to distribute in specific geographic areas one or more of the Products.\n(e)\n"Immediate Affiliates" means the Company's direct and indirect subsidiaries, the Company's direct and indirect\nparents and their direct and indirect subsidiaries.\n(f)\n"Intellectual Property." means inventions, discoveries, developments, methods, processes, compositions, works,\nconcepts\nand\nideas\n(whether or not patentable or copyrightable or registrable under any comparable law or constituting trade secrets) conceived,\nmade, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business hours or\non or off Company premises) during the Executive's service on the Board or his employment with the Company or any of its Immediate\nAffiliates\nor\nthat\nrelate\nto\nthe\nProducts\nor\nto\nany\nprospective\nactivity\nof\nthe\nCompany\nor\nany\nof\nits\nImmediate\nAffiliates\nor\nto\nany\nwork\nperformed\nby the Executive for the Company or any of its Immediate Affiliates or that make use of Confidential Information or any of the equipment or\nfacilities of the Company or any of its Immediate Affiliates.\n(g)\n"Person" means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a\ntrust and any other entity or organization, other than the Company or any of its Affiliates.\n5\n(h)\n"Products" mean all products planned, researched, developed, tested, manufactured, sold, licensed, leased or\notherwise distributed or put into use by the Company or any of its Immediate Affiliates, together with all services provided or planned by the\nCompany or any of its Immediate Affiliates, during the Executive's employment or during the period of his service on the Board that preceded\nthe Commencement Date.\n9.\nAssignment. Neither the Company nor the Executive may make any assignment of this Agreement or any interest in it, by\noperation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and\nobligations under this Agreement without the Executive's consent in the event that the Company shall hereafter affect a reorganization,\nconsolidate with, or merge into any Person or transfer to any Person all or substantially all of the business, properties or assets of the Company.\nThis Agreement shall inure to the benefit of and be binding upon the Executive and the Company, and each of their respective successors,\nexecutors, administrators, heirs, representatives and permitted assigns. The Executive also agree that each of the Company's Affiliates shall have\nthe right to enforce all of his obligations to that Affiliate under this Agreement. The Executive hereby expressly consents to be bound by the\nprovisions of this Agreement for the benefit of the Company and of any successor or permitted assign to whose employ the Executive may\nbe\ntransferred, without the necessity that this Agreement be re-signed at the time of such transfer.\n10.\nSeverability.. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court\nof\ncompetent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those\nas\nto which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be\nvalid and enforceable to the fullest extent permitted by law.\n11.\nNotices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing\nand shall be effective when delivered in person, consigned to a reputable national courier service or deposited in the United States mail, postage\nprepaid, and addressed to the Executive at his last known address on the books of the Company or, in the case of the Company, at its principal\nplace of business in Cambridge, Massachusetts, attention of the Senior Vice President of Human Resources with a copy to the Office of the\nGeneral Counsel of the Company, or to such other address as either party may specify by notice to the other actually received.\n12.\nNot a Contract fon a Fixed Term. The Executive acknowledges and agrees that this Agreement does not in any way obligate\nthe Company to retain his services for a fixed period or at a fixed level of compensation; nor does it in any way restrict his right or that of the\nCompany to terminate his employment at any time, with or without notice or cause.\n13.\nEntire Agreement; Amendments; Waivers; Survival. This Agreement sets forth the entire agreement between the Executive\nand the Company and supersedes all prior and contemporaneous communications, agreements and understandings, written or oral, with respect to\nthe subject matter hereof; provided, however, that this Agreement shall not terminate or supersede the employment agreement between the\nExecutive and the Company of even date herewith; nor shall it supersede any confidentiality or other obligations the Executive may have\n6\nin connection with his service on the Board. This Agreement may not be modified or amended, and no breach shall be deemed to be waived,\nunless agreed to in writing by the Executive and an expressly authorized member of the Board. If any provision of this Agreement should, for\nany reason, be held invalid or unenforceable in any respect, it shall not affect any other provisions, and shall be construed by limiting it so as to\nbe enforceable to the maximum extent permissible by law. Provisions of this Agreement shall survive any termination of the Executive's\nemployment to the extent so provided in this Agreement or if necessary or desirable to accomplish the purpose of other surviving provisions.\n14.\nHeadings and Counterparts. The headings and captions in this Agreement are for convenience only and in no way define or\ndescribe the scope or content of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which\nshall be an original and all of which together shall constitute one and the same instrument.\n15.\nGoverning Law. This is a Massachusetts contract and shall be construed and enforced under and be governed in all respects by\nthe laws of The Commonwealth of Massachusetts, without regard to the conflict of laws principles thereof.\n16.\nExecutive's Representations. In signing this Agreement, the Executive represents and warrants to the Company that he has\nread and understood all of its terms; that he has had a full and reasonable opportunity to consider its terms and to consult with an attorney and\nany\nperson\nof\nhis\nchoosing\nbefore\nsigning,\nif\nhe\nwished\nto\ndo\nso;\nthat\nhe\nhas\nnot\nrelied\non\nany\nagreements\nor\nrepresentations,\nexpress\nor\nimplied,\nconcerning the subject matter hereof that are not set forth expressly in this Agreement; and that he has signed this Agreement knowingly and\nvoluntarily.\nIntending to be legally bound hereby, the Executive has signed this Agreement under seal to take effect as of the date first written above.\nTHE EXECUTIVE:\nSignature: /s/ Jeffrey M. Leiden\nJeffrey M. Leiden, M.D., Ph.D.\nAccepted and Agreed:\nVERTEX PHARMACEUTICALS INCORPORATED\nBy: /s/ Matthew W. Emmens\nMatthew W. Emmens\nPresident, Chairman and CEO\n7	EX-10.35 4 a2206536zex-10_35.htm EX-10.35\nExhibit 10.35\nEMPLOYEE NON-DISCLOSURE, NON-COMPETITION & INVENTIONS AGREEMENT\nThis Agreement made and entered into in Cambridge, Massachusetts, by Jeffrey M. Leiden, M.D., Ph.D . (the “Executive”) and Vertex\nPharmaceuticals Incorporated (the “Company”), effective as of the Executive’s first day of employment with the Company, on the 14 day of\nDecember, 2011.\nWHEREAS, the Employee acknowledges the importance to Vertex Pharmaceuticals Incorporated (the “Company”) and its Affiliates (as\nhereafter defined) of protecting the valuable Confidential Information (as hereafter defined) and goodwill that they have developed or acquired\nand their other legitimate interests.\nNOW, THEREFORE, in consideration of his initial employment with the Company and in consideration of his being granted access to\ntrade secrets and other confidential information of the Company and its Affiliates and for other good and valuable consideration, the receipt and\nsufficiency of which he hereby acknowledges, the Executive hereby agrees with the Company as follows:\n1.\nConfidentiality. The Executive acknowledges that the Company and its Affiliates continually develop Confidential\nInformation; that the Executive may develop Confidential Information for the Company and its Affiliates; and that the Executive has learned and\nwill continue to learn of Confidential Information while serving as a member of the board of directors of the Company (the “Board”) and will\nlearn of Confidential Information hereafter during the course of employment with the Company. The Executive shall comply with the policies\nand procedures of the Company for protecting Confidential Information and shall not disclose to any Person (as hereafter defined) or use, other\nthan as required for the proper performance of his duties and responsibilities to the Company and its Affiliates, or as required by applicable law\nafter notice to the Company and a reasonable opportunity for the Company to seek protection of the Confidential Information prior to disclosure,\nany Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its\nAffiliates. The Executive understands and agrees that these restrictions shall continue to apply after his employment with the Company\nterminates, regardless of the reason for such termination. The confidentiality obligation under this Section 1 shall not apply to information that is\ngenerally known or readily available to the public at the time of disclosure to the Executive or that becomes generally known or readily available\nto the public thereafter through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to the\nCompany or any of its Affiliates.\n2.\nReturn of Company Property. All documents, records, tapes and other media of every kind and description relating to the\nbusiness, present or otherwise, of the Company or any of its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or\nnot prepared by the Executive, shall be the sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all\nDocuments and shall surrender to the Company at\nthe time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents and all other\nproperty of the Company and its Affiliates then in the Executive’s possession or control.\n3.\nAssignment of Rights to Intellectual Property. The Executive shall promptly and fully disclose to the Company all\nIntellectual Property (as defined in Section 8 hereof). The Executive hereby assigns and agrees to assign to the Company (or as otherwise\ndirected by the Company) the Executive’s full right, title and interest in and to all Intellectual Property. The Executive agrees to execute any and\nall applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the\nexecution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Intellectual Property to the\nCompany and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. The Executive\nwill not charge the Company for time spent in complying with these obligations. All copyrightable works that the Executive creates shall be\nconsidered “work made for hire” and shall, upon creation, be owned exclusively by the Company.\n4.\nRestricted Activities. The Executive agrees that the following restrictions on his activities during and after his employment\nare necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Affiliates:\n(a)\nWhile the Executive is employed by the Company and for eighteen (18) months after his employment terminates,\nregardless of the basis of such termination, except as otherwise provided in Section 6(c) of the Executive’s employment agreement with the\nCompany of even date herewith, the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee,\nco-venturer or otherwise, (i) compete with the Company or any of its Immediate Affiliates (as defined in Section 8 hereof) within the United\nStates or in any other country in which the Company or any of its Immediate Affiliates markets, or is in active planning to market, any of the\nProducts or otherwise conducts or is in active planning to conduct business; (ii) undertake any planning for any business competitive with the\nProducts of the Company or any of its Immediate Affiliates; or (iii) compete, or undertake any planning to compete with, the Exclusive Licensees\n(as also defined in Section 8) with respect to those Products as to which the Exclusive Licensees are licensed by the Company or any of its\nImmediate Affiliates in those geographic areas covered by those licenses. Specifically, but without limiting the foregoing, the Executive agrees\nnot to engage in any manner in any activity that is directly or indirectly competitive or potentially competitive with the Products or with any of\nthe other business activities of the Company or any of its Immediate Affiliates conducted or under consideration at any time during the\nExecutive’s employment or his service on the Board and further agrees not to work or provide services, in any capacity, whether as an employee,\nindependent contractor or otherwise, whether with or without compensation, for or to any Person who is engaged in any business that is\ncompetitive with the business of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees (with respect to the Products\nlicensed), as conducted or in planning during the Executive’s employment. For the purposes of this Section 4, the business of the Company and\nth\nits Immediate Affiliates and the Exclusive Licensees shall include all Products and the Executive’s undertaking shall encompass all items,\nproducts and services that may be used in substitution for Products. The foregoing, however, shall not prevent the Executive’s passive ownership\nof two percent (2%) or less of the equity\n2\nsecurities of any publicly traded company; nor in any way limit him in the performance of his duties as a member of the boards of directors of\ncompanies previously disclosed to the Company or otherwise approved by the Board of Directors of the Company.\n(b)\nThe Executive agrees that, during his employment with the Company, he will not undertake any outside activity,\nwhether or not competitive with the business of the Company or any of its Immediate Affiliates, that could reasonably give rise to a conflict of\ninterest or otherwise interfere with any of his duties, responsibilities or obligations to the Company or any of its Immediate Affiliates.\n(c)\nThe Executive agrees that, during his employment with the Company and during the eighteen (18) months\nimmediately following termination of his employment, regardless of the basis of such termination, the Executive will not directly or indirectly\n(a) solicit or encourage any customer or prospective customer of the Company or any of its Immediate Affiliates or any of their Exclusive\nLicensees to terminate or diminish its relationship with the Company or any of its Immediate Affiliates; (b) seek to persuade any such customer\nor prospective customer of the Company or any of its Immediate Affiliates or any Exclusive Licensee to conduct with the Executive or any other\nPerson any business or activity that such customer, prospective customer or Exclusive Licensee conducts or could conduct with the Company or\nany of its Immediate Affiliates or (c) solicit or encourage any customer or prospective customer of any of the Exclusive Licensees for any of the\nProducts to terminate or diminish such business with the Exclusive Licensees or to conduct such business with the Executive or any other\nPerson; provided that these restrictions shall apply after termination of the Executive’s employment with the Company (y) only with respect to\nthose Persons who are or have been Exclusive Licensees or who are or have been a customer or potential customer of the Company or any of its\nImmediate Affiliates or the Exclusive Licensees at any time within the twelve (12) month period immediately preceding the Date of Termination\nor whose business has been solicited on behalf of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees by any of\ntheir employees or agents within said twelve (12) month period, other than by form letter, blanket mailing or published advertisement, and\n(z) only if the Executive has been introduced to, or otherwise had contact with, such Person as a result of his employment or other associations\nwith the Company or one of its Immediate Affiliates or one of their Exclusive Licensees or has had access to Confidential Information that would\nassist in the Executive’s solicitation of such Person in competition with the Company or one of its Immediate Affiliates or one of the Exclusive\nLicensees.\n(d)\nThe Executive agrees that during his employment (except in the course of his duties on behalf of the Company or any\nof its Immediate Affiliates) and during the eighteen (18) month period immediately following termination of his employment, regardless of the\nbasis for such termination, the Executive will not, and will not assist any other Person to, (a) hire or solicit for hiring any employee of the\nCompany or any of its Immediate Affiliates or any of the Exclusive Licensees or seek to persuade any employee of the Company or any of its\nImmediate Affiliates or any of the Exclusive Licensees to discontinue employment or (b) solicit or encourage any independent contractor\nproviding services to the Company or any of its Immediate Affiliates or any of the Exclusive Licensees to terminate or diminish its relationship\nwith them. For the purposes of the Executive’s obligations hereunder following termination of his employment with the Company, an\n“employee” of the Company or any of its Immediate\n3\nAffiliates or any of the Exclusive Licensees or an “independent contractor” providing services to the Company or any of its Immediate Affiliates\nor any of the Exclusive Licensees is any Person who was such at any time during the twelve (12) months preceding the Date of Termination.\n5.\nNotification Requirement. During the eighteen (18) months immediately following the Date of Termination, the Executive\nshall give notice to the Company prior to beginning employment or a consulting position stating the name and address of the Person for whom\nsuch employment or consulting is undertaken and the nature of the Executive’s position with such Person. The Executive agrees to also provide\nthe Company with such other pertinent information as the Company may reasonably request in order to determine the Executive’s continued\ncompliance with his surviving obligations under Sections 1, 3 and 4 hereof.\n6.\nEnforcement of Covenants. The Executive acknowledges that he has carefully read and considered all the terms and\nconditions of this Agreement, including the restraints imposed on him pursuant to Sections 1, 3 and 4 hereof. The Executive agrees without\nreservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the goodwill, Confidential\nInformation and other legitimate interests of the Company and its Immediate Affiliates; that each and every one of those restraints is reasonable\nin respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him\nfrom obtaining other suitable employment during the period in which the Executive is bound by these restraints. The Executive further agrees\nthat he will not assert, or permit to be asserted on his behalf, in any forum, any position contrary to the foregoing. The Executive further\nacknowledges that, were he to breach any of the covenants contained in Section 1, 3 or 4 hereof, the damage to the Company would be\nirreparable. The Executive therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary\nand permanent injunctive relief against any breach or threatened breach by the Executive of any of said covenants, without having to post bond.\nThe parties further agree that, in the event that any provision of Section 1, 3 or 4 hereof shall be determined by any court of competent\njurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of\nactivities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n7.\nConflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the\nperformance of his obligations hereunder will not breach or be in conflict with any other agreement to which the Executive is a party or is bound\nand that the Executive is not now subject to any covenants against competition or similar covenants or any court order or other legal obligation\nthat would affect the performance of his obligations hereunder. The Executive agrees not to disclose to or use on behalf of the Company or any\nof its Affiliates any proprietary information of a prior employer or other Person without such Person’s consent.\n8.\nDefinitions. Words or phrases which are initially capitalized or are within quotation marks shall have the meanings provided\nin this Section and as provided elsewhere herein. For purposes of this Agreement, the following definitions apply:\n4\n(a)\n“Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under common control\nwith the Company, where control may be by management authority, contract or equity interest.\n(b)\n“Confidential Information” means any and all information of the Company and its Affiliates that is not generally\nknown by Persons with whom the Company or any of its Affiliates competes or does business, or with whom the Company or any of its\nAffiliates plans to compete or do business and any and all information, publicly known in whole or in part or not, that, if disclosed by the\nCompany or any of its Affiliates, would assist in competition against them. Confidential Information includes without limitation such\ninformation relating to (i) the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates,\n(ii) the Products, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity\nand special needs of the customers of the Company and its Affiliates and (v) the people and organizations with whom the Company and its\nAffiliates have business relationships and the nature and substance of those relationships. Confidential Information also includes any and all\ninformation received by the Company or any of its Affiliates belonging to any customer or other Person with any understanding, express or\nimplied, that the information would not be disclosed.\n(c)\n“Date of Termination” means the date the Executive’s employment with the Company terminates, regardless of the\nreason for such termination, and, for the avoidance of doubt, whether occurring pursuant to the employment agreement between the Company\nand the Executive of even date herewith or otherwise.\n(d)\n“Exclusive Licensees” means those Persons licensed by the Company and/or by one or more of its Immediate\nAffiliates to distribute in specific geographic areas one or more of the Products.\n(e)\n“Immediate Affiliates” means the Company’s direct and indirect subsidiaries, the Company’s direct and indirect\nparents and their direct and indirect subsidiaries.\n(f)\n“Intellectual Property” means inventions, discoveries, developments, methods, processes, compositions, works,\nconcepts and ideas (whether or not patentable or copyrightable or registrable under any comparable law or constituting trade secrets) conceived,\nmade, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business hours or\non or off Company premises) during the Executive’s service on the Board or his employment with the Company or any of its Immediate\nAffiliates or that relate to the Products or to any prospective activity of the Company or any of its Immediate Affiliates or to any work performed\nby the Executive for the Company or any of its Immediate Affiliates or that make use of Confidential Information or any of the equipment or\nfacilities of the Company or any of its Immediate Affiliates.\n(g)\n“Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a\ntrust and any other entity or organization, other than the Company or any of its Affiliates.\n5\n(h)\n“Products” mean all products planned, researched, developed, tested, manufactured, sold, licensed, leased or\notherwise distributed or put into use by the Company or any of its Immediate Affiliates, together with all services provided or planned by the\nCompany or any of its Immediate Affiliates, during the Executive’s employment or during the period of his service on the Board that preceded\nthe Commencement Date.\n9.\nAssignment. Neither the Company nor the Executive may make any assignment of this Agreement or any interest in it, by\noperation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and\nobligations under this Agreement without the Executive’s consent in the event that the Company shall hereafter affect a reorganization,\nconsolidate with, or merge into any Person or transfer to any Person all or substantially all of the business, properties or assets of the Company.\nThis Agreement shall inure to the benefit of and be binding upon the Executive and the Company, and each of their respective successors,\nexecutors, administrators, heirs, representatives and permitted assigns. The Executive also agree that each of the Company’s Affiliates shall have\nthe right to enforce all of his obligations to that Affiliate under this Agreement. The Executive hereby expressly consents to be bound by the\nprovisions of this Agreement for the benefit of the Company and of any successor or permitted assign to whose employ the Executive may be\ntransferred, without the necessity that this Agreement be re-signed at the time of such transfer.\n10.\nSeverability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court\nof competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those\nas to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be\nvalid and enforceable to the fullest extent permitted by law.\n11.\nNotices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing\nand shall be effective when delivered in person, consigned to a reputable national courier service or deposited in the United States mail, postage\nprepaid, and addressed to the Executive at his last known address on the books of the Company or, in the case of the Company, at its principal\nplace of business in Cambridge, Massachusetts, attention of the Senior Vice President of Human Resources with a copy to the Office of the\nGeneral Counsel of the Company, or to such other address as either party may specify by notice to the other actually received.\n12.\nNot a Contract for a Fixed Term. The Executive acknowledges and agrees that this Agreement does not in any way obligate\nthe Company to retain his services for a fixed period or at a fixed level of compensation; nor does it in any way restrict his right or that of the\nCompany to terminate his employment at any time, with or without notice or cause.\n13.\nEntire Agreement; Amendments; Waivers; Survival. This Agreement sets forth the entire agreement between the Executive\nand the Company and supersedes all prior and contemporaneous communications, agreements and understandings, written or oral, with respect to\nthe subject matter hereof; provided, however, that this Agreement shall not terminate or supersede the employment agreement between the\nExecutive and the Company of even date herewith; nor shall it supersede any confidentiality or other obligations the Executive may have\n6\nin connection with his service on the Board. This Agreement may not be modified or amended, and no breach shall be deemed to be waived,\nunless agreed to in writing by the Executive and an expressly authorized member of the Board. If any provision of this Agreement should, for\nany reason, be held invalid or unenforceable in any respect, it shall not affect any other provisions, and shall be construed by limiting it so as to\nbe enforceable to the maximum extent permissible by law. Provisions of this Agreement shall survive any termination of the Executive’s\nemployment to the extent so provided in this Agreement or if necessary or desirable to accomplish the purpose of other surviving provisions.\n14.\nHeadings and Counterparts. The headings and captions in this Agreement are for convenience only and in no way define or\ndescribe the scope or content of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which\nshall be an original and all of which together shall constitute one and the same instrument.\n15.\nGoverning Law. This is a Massachusetts contract and shall be construed and enforced under and be governed in all respects by\nthe laws of The Commonwealth of Massachusetts, without regard to the conflict of laws principles thereof.\n16.\nExecutive’s Representations. In signing this Agreement, the Executive represents and warrants to the Company that he has\nread and understood all of its terms; that he has had a full and reasonable opportunity to consider its terms and to consult with an attorney and\nany person of his choosing before signing, if he wished to do so; that he has not relied on any agreements or representations, express or implied,\nconcerning the subject matter hereof that are not set forth expressly in this Agreement; and that he has signed this Agreement knowingly and\nvoluntarily.\nIntending to be legally bound hereby, the Executive has signed this Agreement under seal to take effect as of the date first written above.\nTHE EXECUTIVE:\nSignature: /s/ Jeffrey M. Leiden\nJeffrey M. Leiden, M.D., Ph.D.\nAccepted and Agreed:\nVERTEX PHARMACEUTICALS INCORPORATED\nBy: /s/ Matthew W. Emmens\nMatthew W. Emmens\nPresident, Chairman and CEO\n7
cbbcc01ea9cfa4ec8bfa27f0f9f71088.pdf	effective_date jurisdiction party term	EX-10.9 3 d210918dex109.htm FORM OF INVENTION, NON-DISCLOSURE, NON-COMPETITION AND NON-\nSOLICITATION AGREEMENT\nExhibit 10.9\nLOGO\nThe following is the form of Invention, Non-Disclosure, Non-Competition and Non-Solicitation Agreement entered into by new and existing\nemployees of The First Marblehead Corporation (“FMD”) and its subsidiary, Tuition Management Systems LLC (“TMS”). There are variations in\nthe provisions of this agreement based upon an employee’s position at FMD or TMS, as applicable; accordingly, those differences have been\nidentified in brackets and referenced in the accompanying footnotes.\nINVENTION, NON-DISCLOSURE, [NON-COMPETITION] AND NON-SOLICITATION AGREEMENT\nThis Agreement is made this\nday of\n, 2011 between The First Marblehead Corporation, a Delaware corporation (hereinafter\nreferred to collectively with its direct and indirect subsidiaries and affiliates as the “Company”), and\n(the “Employee”). [For the avoidance of doubt, references to the Company in this Agreement include FM Systems\nLLC (d/b/a Tuition Management Systems LLC), except where the context otherwise requires.]\nIn consideration of the [initial and] continued employment of the Employee by the Company, and [consideration to be received by Employee] , the\nreceipt and sufficiency of which is hereby acknowledged by the Employee, the Company and the Employee agree as follows:\n1. Confidential Information\na) The Employee agrees that his or her employment with the Company has created a relationship of trust and confidence between the Employee\nand the Company, and the protection of the Company’s proprietary and Confidential Information (as defined in Section 1(b) below) and its\ngoodwill is critical to the Company’s survival and success. The Employee further represents and agrees that he/she (i) has held and will hold\nall Confidential Information in strict trust and confidence, and (ii) has not disclosed or used, and will not disclose or use at any time, any\nConfidential Information without the prior written consent of an authorized officer of the Company, except to the extent necessary in the\nordinary course of performing his/her duties as an employee of the Company and solely in furtherance of the interests of the Company.\nb) For purposes of this Agreement, the term “Confidential Information” means all information, knowledge or data, in any form or media,\nbelonging or relating to the Company (including securitization trusts) or former or current clients of the Company, which is of value to the\nCompany and the disclosure of which could result in competitive or other disadvantage to the Company. Confidential Information is and shall\nbe the exclusive property of the Company and includes, but is not limited to: (i) the Company’s documents, records, communications, reports,\nforecasts, projections, product and service specifications, statistical models, formulae and\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by new and existing employees of TMS.\nApplicable exclusively to agreements entered into by new employees of FMD and TMS.\nProvision reflects consideration specific to each employee’s individual agreement with FMD.\n-1-\n1\n2\n3\n4\n1\n2\n3\n4\nalgorithms, tools, designs, pricing methods and policies, processes, methods of operation, techniques, arrangements, procedures, current and\nplanned distribution methods and processes, strategic initiatives, business opportunities and strategies, creative plans and strategies, personnel\ninformation, policies, trade secrets, ideas, concepts, know-how, intangible rights, inventions, research and development, source code, systems,\narchitecture, computer programs and database technologies; (ii) information belonging or relating to the Company’s former or current\ncustomers, clients, service providers, consultants and other business relations, including the existence or status of, and any non-public\ninformation concerning, discussions between the Company and former, current, or prospective clients; (iii) the Company’s non-public\nbusiness, operational or financial results, including the performance of any loan portfolio facilitated by the Company, product development\ninitiatives, expansion plans and revenue and expense information; and (iv) information belonging or relating to any third party. In addition, the\nterm Confidential Information includes any notes, analyses, compilations, abstracts, studies, interpretations, memoranda or other documents\nthat contain, reflect or are based upon, in whole or in part, any Confidential Information, whether created by the Employee or others.\nConfidential Information includes information developed by the Employee in the course of his/her employment with the Company, as well as\nother information to which the Employee has or will have access during the period of his/her employment with the Company, including the\nconfidential information of others with whom the Company has a business relationship. The absence of any marking or statement that any\nparticular information is Confidential Information will not affect its status as Confidential Information.\nc) Confidential Information will not include information which is or becomes generally known to the public through no fault of any person. In\naddition, nothing in this Agreement is intended to or shall preclude the Employee from providing truthful testimony or providing truthful\ninformation in response to a valid subpoena, court order or request of any federal, state or local authority, quasi-regulatory or self-governing\nauthority, provided, to the extent permitted by law, the Employee has provided to the Company as much advance notice as practicable of any\nsuch compelled disclosure. The Employee further agrees to cooperate with the Company, at the Company’s cost, to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such governing\nauthority.\nd) The Employee agrees that all materials, in any form or media, that contain, reflect or are based upon, in whole or in part, Confidential\nInformation, whether created by the Employee or others, which have or will come into his/her custody or possession, are and will be the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company. All such tangible\nand intangible materials, and all copies, abstracts, compilations or reproductions thereof, and all property and equipment of the Company in the\ncustody or possession of the Employee will be left intact by the Employee and delivered to the Company, upon the earlier of (i) a request by\nthe Company or (ii) termination of his/her employment, whether voluntary or involuntary. After such delivery, the Employee will not retain\nany such tangible or intangible materials, or copies, abstracts, compilations or reproductions thereof, or any such property. For the avoidance\nof doubt, in connection with the voluntary or involuntary termination of his/her employment, the Employee agrees to leave intact all such\ntangible and intangible materials, including electronic documents of the Company, except in accordance with the Company’s document\nretention policies.\n-2-\ne) The Employee agrees that his/her obligations not to disclose or use Confidential Information as set forth in Sections 1(a) and (d) above, and\nhis/her obligations to return and leave intact tangible and intangible materials as set forth in Section 1(d) above, also extends to such types of\ninformation, materials and tangible property of former or current clients or customers of the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments\na) All Developments (as defined below) that are made, conceived, reduced to practice, created, written, designed or developed by the Employee\nor under his/her direction or jointly with others, whether or not during normal working hours or on the premises of the Company, (i) during the\nperiod of the Employee’s employment with the Company if related to the business or research and development conducted or planned to be\nconducted by the Company and (ii) after the period of the Employee’s employment with the Company if resulting or directly derived from\nConfidential Information, will be the sole property of the Company. For purposes of this Agreement, the term “Developments” means any\ninventions, discoveries, computer programs, source code, data, technology, designs, statistical models, formulae and algorithms, tools,\ninnovations, improvements, methods, techniques, developments and works of authorship, whether or not patentable and whether or not\ncopyrightable.\nb) The Employee will make full and prompt disclosure to the Company of all Developments and will maintain adequate and current written\nrecords (in the form of notes, memoranda and as may otherwise be specified by the Company) to document the conception and/or first actual\nreduction to practice of any Development. The Employee will not disclose any Development to any third party without the express written\npermission of an authorized officer of the Company, and all Developments will be treated by the Employee as Confidential Information. Such\nwritten records will be available to and remain the sole property of the Company at all times.\nc) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all of his/her\nright, title and interest in and to all Developments and all related patents, copyrights, trademarks, trade names, and other industrial and\nintellectual property rights, and all applications therefor, in the United States and elsewhere. However, this Section 2(c) will not apply to\nDevelopments which do not relate to the business or research and development conducted or planned to be conducted by the Company at the\ntime such Development is created, made, conceived or reduced to practice and which are made and conceived by the Employee not during\nnormal working hours, not on the Company’s premises and not using the Company’s tools, devices, equipment or Confidential Information.\nThe Employee understands that, to the extent this Agreement will be construed in accordance with the laws of any state which precludes a\nrequirement in an employee agreement to assign certain classes of inventions made by an employee, this Section 2(c) will be interpreted not to\napply to any invention which a court rules and/or the Company agrees falls within such classes.\n-3-\nd) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect to the\nprocurement, maintenance and enforcement of patents, copyrights, trademarks, trade names and other industrial and intellectual property rights\n(both in the United States and foreign countries) relating to Developments. The Employee hereby appoints any officer of the Company as the\nEmployee’s duly authorized attorney to execute, file, prosecute and protect any Development and related patent, copyright, trademark, trade\nname and other industrial and intellectual property right, and applications therefor, before any government agency, court or authority. Upon the\nrequest of the Company, the Employee will execute such further assignments, documents and other instruments as may be necessary, desirable\nor appropriate to fully and completely assign all Developments to the Company and assist the Company in applying for, obtaining and\nenforcing patents, copyrights or other rights in the United States and in any foreign jurisdiction with respect to any Development. The\nEmployee also hereby waives all claims to moral rights in any Developments.\ne) The Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of\nwork under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n3. Other Agreements\na) The Employee agrees to devote his/her best efforts to the services of the Company in such capacity as the Company from time to time shall\ndirect and agrees to comply with the Company’s rules, policies, and practices at all times.\nb) The Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nother third party.\nc) The Employee agrees that for a period of one year after the termination or cessation of his/her employment for any reason, whether voluntary\nor involuntary, the Employee will inform his/her potential or actual future employers of his/her obligations under this Agreement, including\nSections 1 and 4.\nd) The Employee specifically authorizes the Company to notify any subsequent employers or prospective employers of the Employee of the\nrestrictions on the Employee contained in this Agreement and of any concerns the Company may have about actual or possible conduct by the\nEmployee that may be in breach of this Agreement.\n-4-\ne) [In the event that the Employee believes that employment otherwise in violation of this Agreement would not harm the Company’s legitimate\nbusiness interests, the Employee may request the Company to waive certain of the restrictions contained in this Agreement. Any such request\nshall be made in writing to the Company’s Managing Director, Human Resources and shall identify the business with which the Employee\nseeks to associate and describe the duties that the Employee seeks to perform. The Company has the sole discretion whether to grant such a\nwaiver, and no waiver of any restrictions under this Agreement shall be effective unless in writing and signed by the Managing Director,\nHuman Resources of the Company.]\n{4. Non-Competition and Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly:\na)\nengage or assist others in engaging in any business or enterprise [in the United States] [in any state in which the Employee has performed any\nservices for the Company at any time during his or her employment] (whether as owner, partner, joint venturer, officer, director, employee,\nconsultant, contractor, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a publicly-held\ncompany) that competes or intends to compete in any way with the department, division or unit of the Company (i) for which the Employee\nworked, (ii) for which the Employee performed services, or (iii) about which the Employee had access to Confidential Information in the\ncourse of his/her employment with the Company;\nb) on his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated)\n(i) participate in the solicitation for employment, attempt to hire or hiring of any person or entity employed or otherwise retained or engaged\nby the Company, (ii) hire, employ or engage any person or entity employed or otherwise retained or engaged by the Company or\n(iii) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her employment,\nconsultancy or other relationship with the Company; provided, that this Section 4(b) will not apply to the solicitation, hiring or engagement of\nany person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer; and\nc)\non his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated), induce or\nattempt to induce (including, without limitation, by soliciting business from or performing services for) any customer, client, supplier,\nconsultant, licensee or business relation of the Company (i) to cease doing business with the Company, (ii) to reduce the level of business\nhe/she/it performs with the Company, or (iii) to divert marketing or other resources away from the Company.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff, non-Sales department employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff, Sales department employees of FMD and TMS.\n-5-\n5\n6\n7\n5\n6\n7\nIn addition, for a period of one year after the termination or cessation of the Employee’s employment with the Company for any reason, whether\nvoluntary or involuntary, the Employee will not directly or indirectly solicit or accept any financial services-related business (other than personal or\nhousehold financial services) from (i) any person or entity that was a client or customer of the Company at the date of any cessation or termination of\nthe Employee’s employment, if the Employee was introduced to or interacted with such client or customer regarding the Company’s business or\n(ii) any person or entity that was a prospect of the Company at any time during the 12 months immediately prior to the date of any cessation or\ntermination of the Employee’s employment, if the Employee directly solicited such prospect or if the Employee directly or indirectly, in whole or in\npart, supervised or participated in solicitation activities related to such prospect.}\n[4. Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly, on his/her own behalf or on behalf of any third person or entity, and\nwhether through his/her own efforts or by assisting any other person or entity (including any person employed by or associated with any entity with\nwhom the Employee becomes employed or associated): (a) participate in the solicitation for employment, attempt to hire or hiring of any person or\nentity employed or otherwise retained or engaged by the Company, (b) hire, employ or engage any person or entity employed or otherwise retained\nor engaged by the Company or (c) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her\nemployment, consultancy or other relationship with the Company; provided, that this Section 4 will not apply to the solicitation, hiring or\nengagement of any person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer.]\n5. No Employment Contract\nThe Employee understands that this Agreement does not constitute a contract of employment and does not alter the at-will nature of the Employee’s\nemployment with the Company or otherwise imply that his/her employment will continue for any period of time. The Employee understands that\nboth the Employee and the Company may end the employment relationship at any time and for any reason.\n6. Miscellaneous\na) The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this\nAgreement.\nb) If the Employee violates the provisions of Section 4, the Employee will continue to be bound by the restrictions set forth in Section 4 until a\nperiod of one year has expired without any violation of such provisions.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by staff level employees of FMD and TMS.\n-6-\n8\n9\n8\n9\nc) If any restriction set forth in Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a\nperiod of time or over too great a range of activities [or in too broad a geographic area] , it will be interpreted to extend only over the\nmaximum period of time, range of activities [or geographic area] as to which it may be enforceable.\nd) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed by the\nEmployee and the Company. The Employee agrees that any change or changes in his/her duties, authority, salary or compensation after the\nsigning of this Agreement will not affect the validity or scope of this Agreement.\ne) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company and its\nsuccessors and assigns.\nf) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver\nof any right on any other occasion.\ng) The Employee agrees that the obligations and restrictions contained in this Agreement, including the covenants contained in Sections 1, 2 and\n4, are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such\npurpose. The Employee agrees that any breach or threatened breach of this Agreement by the Employee is likely to cause the Company not\nonly financial harm, but substantial and irrevocable damage which is difficult to measure and for which money damages alone will not provide\nan adequate remedy. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, will be entitled to enforce the specific performance of the provisions of this Agreement by the\nEmployee and will have the right to both temporary and permanent injunctive relief (to the extent permitted by law), without the necessity of\nproving actual damages or posting any surety or bond, from a court restraining such a breach or threatened breach, and the Employee hereby\nwaives the adequacy of a remedy at law as a defense to such relief. If the Employee breaches any of the covenants set forth in this Agreement,\nhe/she agrees to pay all reasonable costs (including attorneys’ fees) incurred by the Company in establishing that breach and in otherwise\nenforcing any of the covenants or provisions of this Agreement.\nh) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced\nto resolve any matter arising under or relating to any provision of this Agreement will be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\nexclusive jurisdiction of such a court. Both the Employee and the Company waive the right to a trial by jury with respect to any matter arising\nunder or relating to any provision of this Agreement or otherwise related to the Employee’s employment with the Company or the termination\nof the Employee’s employment with the Company.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n-7-\n10\n11\n10\n11\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nTHE FIRST MARBLEHEAD CORPORATION\nBy:\nJo-Ann Burnham\nManaging Director, Human Resources\nEMPLOYEE\nName:\nDate:\n-8-	EX-10.9 3 d210918dex109.htm FORM OF INVENTION, NON-DISCLOSURE, NON-COMPETITION AND NON-\nSOLICITATION AGREEMENT\nExhibit 10.9\n».LOGO\nThe following is the form of Invention, Non-Disclosure, Non-Competition and Non-Solicitation Agreement entered into by new and existing\nemployees of The First Marblehead Corporation (“FMD”) and its subsidiary, Tuition Management Systems LLC (“TMS”). There are variations in\nthe provisions of this agreement based upon an employee’s position at FMD or TMS, as applicable; accordingly, those differences have been\nidentified in brackets and referenced in the accompanying footnotes.\nINVENTION, NON-DISCLOSURE, [NON-COMPETITION]! AND NON-SOLICITATION AGREEMENT\nThis Agreement is made this day of 2011 between The First Marblehead Corporation, a Delaware corporation (hereinafter\nreferred to collectively with its direct and indirect subsidiaries and affiliates as the “Company”), and\n(the “Employee”). [For the avoidance of doubt, references to the Company in this Agreement include FM Systems\nLLC (d/b/a Tuition Management Systems LL.C), except where the context otherwise requires.]?\n \nIn consideration of the [initial and]? continued employment of the Employee by the Company, and [consideration to be received by Employee]4, the\nreceipt and sufficiency of which is hereby acknowledged by the Employee, the Company and the Employee agree as follows:\n1. Confidential Information\na)  The Employee agrees that his or her employment with the Company has created a relationship of trust and confidence between the Employee\nand the Company, and the protection of the Company’s proprietary and Confidential Information (as defined in Section 1(b) below) and its\ngoodwill is critical to the Company’s survival and success. The Employee further represents and agrees that he/she (i) has held and will hold\nall Confidential Information in strict trust and confidence, and (ii) has not disclosed or used, and will not disclose or use at any time, any\nConfidential Information without the prior written consent of an authorized officer of the Company, except to the extent necessary in the\nordinary course of performing his/her duties as an employee of the Company and solely in furtherance of the interests of the Company.\nb)  For purposes of this Agreement, the term “Confidential Information” means all information, knowledge or data, in any form or media,\nbelonging or relating to the Company (including securitization trusts) or former or current clients of the Company, which is of value to the\nCompany and the disclosure of which could result in competitive or other disadvantage to the Company. Confidential Information is and shall\nbe the exclusive property of the Company and includes, but is not limited to: (i) the Company’s documents, records, communications, reports,\nforecasts, projections, product and service specifications, statistical models, formulae and\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by new and existing employees of TMS.\nApplicable exclusively to agreements entered into by new employees of FMD and TMS.\nProvision reflects consideration specific to each employee’s individual agreement with FMD.\nAW N R\n-1-\nd)\nalgorithms, tools, designs, pricing methods and policies, processes, methods of operation, techniques, arrangements, procedures, current and\nplanned distribution methods and processes, strategic initiatives, business opportunities and strategies, creative plans and strategies, personnel\ninformation, policies, trade secrets, ideas, concepts, know-how, intangible rights, inventions, research and development, source code, systems,\narchitecture, computer programs and database technologies; (ii) information belonging or relating to the Company’s former or current\ncustomers, clients, service providers, consultants and other business relations, including the existence or status of, and any non-public\ninformation concerning, discussions between the Company and former, current, or prospective clients; (iii) the Company’s non-public\nbusiness, operational or financial results, including the performance of any loan portfolio facilitated by the Company, product development\ninitiatives, expansion plans and revenue and expense information; and (iv) information belonging or relating to any third party. In addition, the\nterm Confidential Information includes any notes, analyses, compilations, abstracts, studies, interpretations, memoranda or other documents\nthat contain, reflect or are based upon, in whole or in part, any Confidential Information, whether created by the Employee or others.\nConfidential Information includes information developed by the Employee in the course of his/her employment with the Company, as well as\nother information to which the Employee has or will have access during the period of his/her employment with the Company, including the\nconfidential information of others with whom the Company has a business relationship. The absence of any marking or statement that any\nparticular information is Confidential Information will not affect its status as Confidential Information.\nConfidential Information will not include information which is or becomes generally known to the public through no fault of any person. In\naddition, nothing in this Agreement is intended to or shall preclude the Employee from providing truthful testimony or providing truthful\ninformation in response to a valid subpoena, court order or request of any federal, state or local authority, quasi-regulatory or self-governing\nauthority, provided, to the extent permitted by law, the Employee has provided to the Company as much advance notice as practicable of any\nsuch compelled disclosure. The Employee further agrees to cooperate with the Company, at the Company’s cost, to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such governing\nauthority.\nThe Employee agrees that all materials, in any form or media, that contain, reflect or are based upon, in whole or in part, Confidential\nInformation, whether created by the Employee or others, which have or will come into his/her custody or possession, are and will be the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company. All such tangible\nand intangible materials, and all copies, abstracts, compilations or reproductions thereof, and all property and equipment of the Company in the\ncustody or possession of the Employee will be left intact by the Employee and delivered to the Company, upon the earlier of (i) a request by\nthe Company or (ii) termination of his/her employment, whether voluntary or involuntary. After such delivery, the Employee will not retain\nany such tangible or intangible materials, or copies, abstracts, compilations or reproductions thereof, or any such property. For the avoidance\nof doubt, in connection with the voluntary or involuntary termination of his/her employment, the Employee agrees to leave intact all such\ntangible and intangible materials, including electronic documents of the Company, except in accordance with the Company’s document\nretention policies.\n_2-\nb)\nThe Employee agrees that his/her obligations not to disclose or use Confidential Information as set forth in Sections 1(a) and (d) above, and\nhis/her obligations to return and leave intact tangible and intangible materials as set forth in Section 1(d) above, also extends to such types of\ninformation, materials and tangible property of former or current clients or customers of the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\nDevelopments\nAll Developments (as defined below) that are made, conceived, reduced to practice, created, written, designed or developed by the Employee\nor under his/her direction or jointly with others, whether or not during normal working hours or on the premises of the Company, (i) during the\nperiod of the Employee’s employment with the Company if related to the business or research and development conducted or planned to be\nconducted by the Company and (ii) after the period of the Employee’s employment with the Company if resulting or directly derived from\nConfidential Information, will be the sole property of the Company. For purposes of this Agreement, the term “Developments” means any\ninventions, discoveries, computer programs, source code, data, technology, designs, statistical models, formulae and algorithms, tools,\ninnovations, improvements, methods, techniques, developments and works of authorship, whether or not patentable and whether or not\ncopyrightable.\nThe Employee will make full and prompt disclosure to the Company of all Developments and will maintain adequate and current written\nrecords (in the form of notes, memoranda and as may otherwise be specified by the Company) to document the conception and/or first actual\nreduction to practice of any Development. The Employee will not disclose any Development to any third party without the express written\npermission of an authorized officer of the Company, and all Developments will be treated by the Employee as Confidential Information. Such\nwritten records will be available to and remain the sole property of the Company at all times.\nThe Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all of his/her\nright, title and interest in and to all Developments and all related patents, copyrights, trademarks, trade names, and other industrial and\nintellectual property rights, and all applications therefor, in the United States and elsewhere. However, this Section 2(c) will not apply to\nDevelopments which do not relate to the business or research and development conducted or planned to be conducted by the Company at the\ntime such Development is created, made, conceived or reduced to practice and which are made and conceived by the Employee not during\nnormal working hours, not on the Company’s premises and not using the Company’s tools, devices, equipment or Confidential Information.\nThe Employee understands that, to the extent this Agreement will be construed in accordance with the laws of any state which precludes a\nrequirement in an employee agreement to assign certain classes of inventions made by an employee, this Section 2(c) will be interpreted not to\napply to any invention which a court rules and/or the Company agrees falls within such classes.\n_3-\nd)\ne)\nb)\nd)\nThe Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect to the\nprocurement, maintenance and enforcement of patents, copyrights, trademarks, trade names and other industrial and intellectual property rights\n(both in the United States and foreign countries) relating to Developments. The Employee hereby appoints any officer of the Company as the\nEmployee’s duly authorized attorney to execute, file, prosecute and protect any Development and related patent, copyright, trademark, trade\nname and other industrial and intellectual property right, and applications therefor, before any government agency, court or authority. Upon the\nrequest of the Company, the Employee will execute such further assignments, documents and other instruments as may be necessary, desirable\nor appropriate to fully and completely assign all Developments to the Company and assist the Company in applying for, obtaining and\nenforcing patents, copyrights or other rights in the United States and in any foreign jurisdiction with respect to any Development. The\nEmployee also hereby waives all claims to moral rights in any Developments.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of\nwork under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\nOther Agreements\nThe Employee agrees to devote his/her best efforts to the services of the Company in such capacity as the Company from time to time shall\ndirect and agrees to comply with the Company’s rules, policies, and practices at all times.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nother third party.\nThe Employee agrees that for a period of one year after the termination or cessation of his/her employment for any reason, whether voluntary\nor involuntary, the Employee will inform his/her potential or actual future employers of his/her obligations under this Agreement, including\nSections 1 and 4.\nThe Employee specifically authorizes the Company to notify any subsequent employers or prospective employers of the Employee of the\nrestrictions on the Employee contained in this Agreement and of any concerns the Company may have about actual or possible conduct by the\nEmployee that may be in breach of this Agreement.\n_4-\n{4. [In the event that the Employee believes that employment otherwise in violation of this Agreement would not harm the Company’s legitimate\nbusiness interests, the Employee may request the Company to waive certain of the restrictions contained in this Agreement. Any such request\nshall be made in writing to the Company’s Managing Director, Human Resources and shall identify the business with which the Employee\nseeks to associate and describe the duties that the Employee seeks to perform. The Company has the sole discretion whether to grant such a\nwaiver, and no waiver of any restrictions under this Agreement shall be effective unless in writing and signed by the Managing Director,\nHuman Resources of the Company.]°\nNon-Competition and Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason, whether voluntary or involuntary, the Employee will not directly or indirectly: a)\nb)\nengage or assist others in engaging in any business or enterprise [in the United States]® [in any state in which the Employee has performed any\nservices for the Company at any time during his or her employment]” (whether as owner, partner, joint venturer, officer, director, employee,\nconsultant, contractor, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a publicly-held\ncompany) that competes or intends to compete in any way with the department, division or unit of the Company (i) for which the Employee\nworked, (ii) for which the Employee performed services, or (iii) about which the Employee had access to Confidential Information in the\ncourse of his/her employment with the Company;\non his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated)\n(i) participate in the solicitation for employment, attempt to hire or hiring of any person or entity employed or otherwise retained or engaged\nby the Company, (ii) hire, employ or engage any person or entity employed or otherwise retained or engaged by the Company or\n(iii) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her employment,\nconsultancy or other relationship with the Company; provided, that this Section 4(b) will not apply to the solicitation, hiring or engagement of\nany person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer; and\non his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated), induce or\nattempt to induce (including, without limitation, by soliciting business from or performing services for) any customer, client, supplier,\nconsultant, licensee or business relation of the Company (i) to cease doing business with the Company, (ii) to reduce the level of business\nhe/she/it performs with the Company, or (iii) to divert marketing or other resources away from the Company.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff, non-Sales department employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff, Sales department employees of FMD and TMS.\n_5.\nIn addition, for a period of one year after the termination or cessation of the Employee’s employment with the Company for any reason, whether\nvoluntary or involuntary, the Employee will not directly or indirectly solicit or accept any financial services-related business (other than personal or\nhousehold financial services) from (i) any person or entity that was a client or customer of the Company at the date of any cessation or termination of\nthe Employee’s employment, if the Employee was introduced to or interacted with such client or customer regarding the Company’s business or\n(ii) any person or entity that was a prospect of the Company at any time during the 12 months immediately prior to the date of any cessation or\ntermination of the Employee’s employment, if the Employee directly solicited such prospect or if the Employee directly or indirectly, in whole or in\npart, supervised or participated in solicitation activities related to such prospect.} 8\n[4. Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly, on his/her own behalf or on behalf of any third person or entity, and\nwhether through his/her own efforts or by assisting any other person or entity (including any person employed by or associated with any entity with\nwhom the Employee becomes employed or associated): (a) participate in the solicitation for employment, attempt to hire or hiring of any person or\nentity employed or otherwise retained or engaged by the Company, (b) hire, employ or engage any person or entity employed or otherwise retained\nor engaged by the Company or (c) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her\nemployment, consultancy or other relationship with the Company; provided, that this Section 4 will not apply to the solicitation, hiring or\ngngagement of any person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer.]\n5. No Employment Contract\nThe Employee understands that this Agreement does not constitute a contract of employment and does not alter the at-will nature of the Employee’s\nemployment with the Company or otherwise imply that his/her employment will continue for any period of time. The Employee understands that\nboth the Employee and the Company may end the employment relationship at any time and for any reason.\n6. Miscellaneous\na)  The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this\nAgreement.\nb)  If the Employee violates the provisions of Section 4, the Employee will continue to be bound by the restrictions set forth in Section 4 until a\nperiod of one year has expired without any violation of such provisions.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by staff level employees of FMD and TMS.\n-6-\nd)\ne)\ng\nh)\n10\n11\nIf any restriction set forth in Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a\nperiod of time or over too great a range of activities [or in too broad a geographic area]l9, it will be interpreted to extend only over the\nmaximum period of time, range of activities [or geographic area]!! as to which it may be enforceable.\nThis Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed by the\nEmployee and the Company. The Employee agrees that any change or changes in his/her duties, authority, salary or compensation after the\nsigning of this Agreement will not affect the validity or scope of this Agreement.\nThis Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company and its\nsuccessors and assigns.\nNo delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver\nof any right on any other occasion.\nThe Employee agrees that the obligations and restrictions contained in this Agreement, including the covenants contained in Sections 1, 2 and\n4, are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such\npurpose. The Employee agrees that any breach or threatened breach of this Agreement by the Employee is likely to cause the Company not\nonly financial harm, but substantial and irrevocable damage which is difficult to measure and for which money damages alone will not provide\nan adequate remedy. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, will be entitled to enforce the specific performance of the provisions of this Agreement by the\nEmployee and will have the right to both temporary and permanent injunctive relief (to the extent permitted by law), without the necessity of\nproving actual damages or posting any surety or bond, from a court restraining such a breach or threatened breach, and the Employee hereby\nwaives the adequacy of a remedy at law as a defense to such relief. If the Employee breaches any of the covenants set forth in this Agreement,\nhe/she agrees to pay all reasonable costs (including attorneys’ fees) incurred by the Company in establishing that breach and in otherwise\nenforcing any of the covenants or provisions of this Agreement.\nThis Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced\nto resolve any matter arising under or relating to any provision of this Agreement will be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\nexclusive jurisdiction of such a court. Both the Employee and the Company waive the right to a trial by jury with respect to any matter arising\nunder or relating to any provision of this Agreement or otherwise related to the Employee’s employment with the Company or the termination\nof the Employee’s employment with the Company.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n_7-\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nTHE FIRST MARBLEHEAD CORPORATION\nBy:\nJo-Ann Burnham\nManaging Director, Human Resources\nEMPLOYEE\nName:\nDate:	EX-10.9 3 d210918dex109.htm FORM OF INVENTION, NON-DISCLOSURE, NON-COMPETITION AND NON-\nSOLICITATION AGREEMENT\nExhibit 10.9\nLOGO\nThe following is the form of Invention, Non-Disclosure, Non-Competition and Non-Solicitation Agreement entered into by new and existing\nemployees of The First Marblehead Corporation ("FMD") and its subsidiary, Tuition Management Systems LLC ("TMS"). There are variations\nin\nthe provisions of this agreement based upon an employee's position at FMD or TMS, as applicable; accordingly, those differences have been\nidentified in brackets and referenced in the accompanying footnotes.\nINVENTION, NON-DISCLOSURE, [NON-COMPETITION] AND NON-SOLICITATION AGREEMENT\nThis Agreement is made this\nday of\n2011 between The First Marblehead Corporation, a Delaware corporation (hereinafter\nreferred to collectively with its direct and indirect subsidiaries and affiliates as the "Company"), and\n(the "Employee"). [For the avoidance of doubt, references to the Company in this Agreement include FM Systems\nLLC (d/b/a Tuition Management Systems LLC), except where the context otherwise requires.]\nIn consideration of the [initial and] continued employment of the Employee by the Company, and [consideration to be received by Employee]4 the\nreceipt and sufficiency of which is hereby acknowledged by the Employee, the Company and the Employee agree as follows:\n1.\nConfidential Information\na)\nThe Employee agrees that his or her employment with the Company has created a relationship of trust and confidence between the Employee\nand the Company, and the protection of the Company's proprietary and Confidential Information (as defined in Section 1(b) below) and its\ngoodwill is critical to the Company's survival and success. The Employee further represents and agrees that he/she (i) has held and will hold\nall Confidential Information in strict trust and confidence, and (ii) has not disclosed or used, and will not disclose or use at any time, any\nConfidential Information without the prior written consent of an authorized officer of the Company, except to the extent necessary in the\nordinary course of performing his/her duties as an employee of the Company and solely in furtherance of the interests of the Company.\nb)\nFor purposes of this Agreement, the term "Confidential Information" means all information, knowledge or data, in any form or media,\nbelonging or relating to the Company (including securitization trusts) or former or current clients of the Company, which is of value to the\nCompany and the disclosure of which could result in competitive or other disadvantage to the Company. Confidential Information is and shall\nbe the exclusive property of the Company and includes, but is not limited to: (i) the Company's documents, records, communications, reports,\nforecasts, projections, product and service specifications, statistical models, formulae and\n1\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n2\nApplicable exclusively to agreements entered into by new and existing employees of TMS.\n3\nApplicable exclusively to agreements entered into by new employees of FMD and TMS.\n4\nProvision reflects consideration specific to each employee's individual agreement with FMD.\n1\nalgorithms, tools, designs, pricing methods and policies, processes, methods of operation, techniques, arrangements, procedures, current and\nplanned distribution methods and processes, strategic initiatives, business opportunities and strategies, creative plans and strategies, personnel\ninformation, policies, trade secrets, ideas, concepts, know-how, intangible rights, inventions, research and development, source code, systems,\narchitecture, computer programs and database technologies; (ii) information belonging or relating to the Company's former or current\ncustomers, clients, service providers, consultants and other business relations, including the existence or status of, and any non-public\ninformation concerning, discussions between the Company and former, current, or prospective clients; (iii) the Company's non-public\nbusiness, operational or financial results, including the performance of any loan portfolio facilitated by the Company, product development\ninitiatives, expansion plans and revenue and expense information; and (iv) information belonging or relating to any third party. In addition, the\nterm Confidential Information includes any notes, analyses, compilations, abstracts, studies, interpretations, memoranda or other documents\nthat contain, reflect or are based upon, in whole or in part, any Confidential Information, whether created by the Employee or others.\nConfidential Information includes information developed by the Employee in the course of his/her employment with the Company, as well as\nother information to which the Employee has or will have access during the period of his/her employment with the Company, including the\nconfidential information of others with whom the Company has a business relationship The absence of any marking or statement that any\nparticular information is Confidential Information will not affect its status as Confidential Information.\nc)\nConfidential Information will not include information which is or becomes generally known to the public through no fault of any person. In\naddition, nothing in this Agreement is intended to or shall preclude the Employee from providing truthful testimony or providing truthful\ninformation in response to a valid subpoena, court order or request of any federal, state or local authority, quasi-regulatory or self-governing\nauthority, provided, to the extent permitted by law, the Employee has provided to the Company as much advance notice as practicable of any\nsuch compelled disclosure. The Employee further agrees to cooperate with the Company, at the Company's cost, to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such governing\nauthority.\nd)\nThe Employee agrees that all materials, in any form or media, that contain, reflect or are based upon, in whole or in part, Confidentia\nInformation, whether created by the Employee or others, which have or will come into his/her custody or possession, are and will be the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company. All such tangible\nand intangible materials, and all copies, abstracts, compilations or reproductions thereof, and all property and equipment of the Company\nin\nthe\ncustody or possession of the Employee will be left intact by the Employee and delivered to the Company, upon the earlier of (i) a request by\nthe Company or (ii) termination of his/her employment, whether voluntary or involuntary. After such delivery, the Employee will not retain\nany such tangible or intangible materials, or copies, abstracts, compilations or reproductions thereof, or any such property. For the avoidance\nof doubt, in connection with the voluntary or involuntary termination of his/her employment, the Employee agrees to leave intact all such\ntangible and intangible materials, including electronic documents of the Company, except in accordance with the Company's document\nretention policies.\n2\ne)\nThe Employee agrees that his/her obligations not to disclose or use Confidential Information as set forth in Sections 1(a) and (d) above, and\nhis/her obligations to return and leave intact tangible and intangible materials as set forth in Section 1(d) above, also extends to such types of\ninformation, materials and tangible property of former or current clients or customers of the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments\na)\nAll Developments (as defined below) that are made, conceived, reduced to practice, created, written, designed or developed by the Employee\nor under his/her direction or jointly with others, whether or not during normal working hours or on the premises of the Company, (i) during the\nperiod of the Employee's employment with the Company if related to the business or research and development conducted or planned to be\nconducted by the Company and (ii) after the period of the Employee's employment with the Company if resulting or directly derived from\nConfidential Information, will be the sole property of the Company. For purposes of this Agreement, the term "Developments" means any\ninventions, discoveries, computer programs, source code, data, technology, designs, statistical models, formulae and algorithms, tools,\ninnovations, improvements, methods, techniques, developments and works of authorship, whether or not patentable and whether or not\ncopyrightable.\nb)\nThe Employee will make full and prompt disclosure to the Company of all Developments and will maintain adequate and current written\nrecords (in the form of notes, memoranda and as may otherwise be specified by the Company) to document the conception and/or first actual\nreduction to practice of any Development. The Employee will not disclose any Development to any third party without the express written\npermission of an authorized officer of the Company, and all Developments will be treated by the Employee as Confidential Information. Such\nwritten records will be available to and remain the sole property of the Company at all times.\nc)\nThe Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all of his/her\nright, title and interest in and to all Developments and all related patents, copyrights, trademarks, trade names, and other industrial and\nintellectual property rights, and all applications therefor, in the United States and elsewhere. However, this Section 2(c) will not apply to\nDevelopments which do not relate to the business or research and development conducted or planned to be conducted by the Company at the\ntime such Development is created, made, conceived or reduced to practice and which are made and conceived by the Employee not during\nnormal working hours, not on the Company's premises and not using the Company's tools, devices, equipment or Confidential Information.\nThe Employee understands that, to the extent this Agreement will be construed in accordance with the laws of any state which precludes a\nrequirement in an employee agreement to assign certain classes of inventions made by an employee, this Section 2(c) will be interpreted not to\napply to any invention which a court rules and/or the Company agrees falls within such classes.\n3\nd) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect to the\nprocurement, maintenance and enforcement of patents, copyrights, trademarks, trade names and other industrial and intellectual property rights\n(both in the United States and foreign countries) relating to Developments. The Employee hereby appoints any officer of the Company as the\nEmployee's duly authorized attorney to execute, file, prosecute and protect any Development and related patent, copyright, trademark, trade\nname and other industrial and intellectual property right, and applications therefor, before any government agency, court or authority. Upon the\nrequest of the Company, the Employee will execute such further assignments, documents and other instruments as may be necessary, desirable\nor\nappropriate to fully and completely assign all Developments to the Company and assist the Company in applying for, obtaining and\nenforcing patents, copyrights or other rights in the United States and in any foreign jurisdiction with respect to any Development. The\nEmployee also hereby waives all claims to moral rights in any Developments.\ne)\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of\nwork under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n3.\nOther Agreements\na)\nThe Employee agrees to devote his/her best efforts to the services of the Company in such capacity as the Company from time to time shall\ndirect and agrees to comply with the Company's rules, policies, and practices at all times.\nb)\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any nondisclosure or non-competition agreement), and that the Employee will not disclose\nto\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nother third party.\nc)\nThe Employee agrees that for a period of one year after the termination or cessation of his/her employment for any reason, whether voluntary\nor involuntary, the Employee will inform his/her potential or actual future employers of his/her obligations under this Agreement, including\nSections 1 and 4.\nd)\nThe Employee specifically authorizes the Company to notify any subsequent employers or prospective employers of the Employee of the\nrestrictions on the Employee contained in this Agreement and of any concerns the Company may have about actual or possible conduct\nby\nthe\nEmployee that may be in breach of this Agreement.\n4\ne)\n[In the event that the Employee believes that employment otherwise in violation of this Agreement would not harm the Company's legitimate\nbusiness interests, the Employee may request the Company to waive certain of the restrictions contained in this Agreement. Any such request\nshall be made in writing to the Company's Managing Director, Human Resources and shall identify the business with which the Employee\nseeks to associate and describe the duties that the Employee seeks to perform. The Company has the sole discretion whether to grant such a\nwaiver, and no waiver of any restrictions under this Agreement shall be effective unless in writing and signed by the Managing Director,\nHuman Resources of the Company.]5\n{4. Non-Competition and Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly:\na)\nengage or assist others in engaging in any business or enterprise [in the United States] [in any state in which the Employee has performed any\nservices for the Company at any time during his or her employment]7 (whether as owner, partner, joint venturer, officer, director, employee,\nconsultant, contractor, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a publicly-held\ncompany) that competes or intends to compete in any way with the department, division or unit of the Company (i) for which the Employee\nworked, (ii) for which the Employee performed services, or (iii) about which the Employee had access to Confidential Information in the\ncourse of his/her employment with the Company;\nb)\non his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated)\n(i) participate in the solicitation for employment, attempt to hire or hiring of any person or entity employed or otherwise retained or engaged\nby the Company, (ii) hire, employ or engage any person or entity employed or otherwise retained or engaged by the Company or\n(iii) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her employment,\nconsultancy or other relationship with the Company; provided, that this Section 4(b) will not apply to the solicitation, hiring or engagement\nof\nany person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer; and\nc)\non his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated), induce or\nattempt to induce (including, without limitation, by soliciting business from or performing services for) any customer, client, supplier,\nconsultant, licensee or business relation of the Company (i) to cease doing business with the Company, (ii) to reduce the level of business\nhe/she/it performs with the Company, or (iii) to divert marketing or other resources away from the Company.\n5\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n6\nApplicable exclusively to agreements entered into by non-staff, non-Sales department employees of FMD and TMS.\n7\nApplicable exclusively to agreements entered into by non-staff, Sales department employees of FMD and TMS.\n5\nIn addition, for a period of one year after the termination or cessation of the Employee's employment with the Company for any reason, whether\nvoluntary or involuntary, the Employee will not directly or indirectly solicit or accept any financial services-related business (other than personal\nor\nhousehold financial services) from (i) any person or entity that was a client or customer of the Company at the date of any cessation or termination of\nthe Employee's employment, if the Employee was introduced to or interacted with such client or customer regarding the Company's business\nor\n(ii) any person or entity that was a prospect of the Company at any time during the 12 months immediately prior to the date of any cessation or\ntermination of the Employee's employment, if the Employee directly solicited such prospect or if the Employee directly or indirectly, in whole or\nin\npart, supervised or participated in solicitation activities related to such prospect.} 8\n[4. Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly, on his/her own behalf or on behalf of any third person or entity, and\nwhether through his/her own efforts or by assisting any other person or entity (including any person employed by or associated with any entity with\nwhom the Employee becomes employed or associated): (a) participate in the solicitation for employment, attempt to hire or hiring of any person or\nentity employed or otherwise retained or engaged by the Company, (b) hire, employ or engage any person or entity employed or otherwise retained\nor engaged by the Company or (c) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her\nemployment, consultancy or other relationship with the Company; provided, that this Section 4 will not apply to the solicitation, hiring or\nengagement of any person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer.]\n9\n5.\nNo Employment Contract\nThe Employee understands that this Agreement does not constitute a contract of employment and does not alter the at-will nature of the Employee's\nemployment with the Company or otherwise imply that his/her employment will continue for any period of time. The Employee understands that\nboth the Employee and the Company may end the employment relationship at any time and for any reason.\n6. Miscellaneous\na)\nThe invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this\nAgreement.\nb)\nIf the Employee violates the provisions of Section 4, the Employee will continue to be bound by the restrictions set forth in Section 4 until a\nperiod of one year has expired without any violation of such provisions.\n8\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n9\nApplicable exclusively to agreements entered into by staff level employees of FMD and TMS.\n6\nc)\nIf any restriction set forth in Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long\na\nperiod of time or over too great a range of activities [or in too broad a geographic area]10 it will be interpreted to extend only over the\nmaximum period of time, range of activities [or geographic area]1l as to which it may be enforceable.\nd)\nThis Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby\nthe\nEmployee and the Company. The Employee agrees that any change or changes in his/her duties, authority, salary or compensation after the\nsigning of this Agreement will not affect the validity or scope of this Agreement.\ne)\nThis Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the Company and its\nsuccessors and assigns.\nf)\nNo delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver\nof any right on any other occasion.\ng)\nThe Employee agrees that the obligations and restrictions contained in this Agreement, including the covenants contained in Sections 1, 2 and\n4, are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such\npurpose. The Employee agrees that any breach or threatened breach of this Agreement by the Employee is likely to cause the Company not\nonly financial harm, but substantial and irrevocable damage which is difficult to measure and for which money damages alone will not provide\nan adequate remedy. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, will be entitled to enforce the specific performance of the provisions of this Agreement by the\nEmployee and will have the right to both temporary and permanent injunctive relief (to the extent permitted by law), without the necessity of\nproving actual damages or posting any surety or bond, from a court restraining such a breach or threatened breach, and the Employee hereby\nwaives the adequacy of a remedy at law as a defense to such relief. If the Employee breaches any of the covenants set forth in this Agreement,\nhe/she agrees to pay all reasonable costs (including attorneys' fees) incurred by the Company in establishing that breach and in otherwise\nenforcing any of the covenants or provisions of this Agreement.\nh)\nThis Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced\nto resolve any matter arising under or relating to any provision of this Agreement will be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\nexclusive jurisdiction of such a court. Both the Employee and the Company waive the right to a trial by jury with respect to any matter arising\nunder or relating to any provision of this Agreement or otherwise related to the Employee's employment with the Company or the termination\nof the Employee's employment with the Company.\n10\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n11\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n7\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nTHE FIRST MARBLEHEAD CORPORATION\nBy:\nJo-Ann Burnham\nManaging Director, Human Resources\nEMPLOYEE\nName:\nDate:\n8 -	EX-10.9 3 d210918dex109.htm FORM OF INVENTION, NON-DISCLOSURE, NON-COMPETITION AND NON-\nSOLICITATION AGREEMENT\nExhibit 10.9\nLOGO\nThe following is the form of Invention, Non-Disclosure, Non-Competition and Non-Solicitation Agreement entered into by new and existing\nemployees of The First Marblehead Corporation (“FMD”) and its subsidiary, Tuition Management Systems LLC (“TMS”). There are variations in\nthe provisions of this agreement based upon an employee’s position at FMD or TMS, as applicable; accordingly, those differences have been\nidentified in brackets and referenced in the accompanying footnotes.\nINVENTION, NON-DISCLOSURE, [NON-COMPETITION] AND NON-SOLICITATION AGREEMENT\nThis Agreement is made this\nday of\n, 2011 between The First Marblehead Corporation, a Delaware corporation (hereinafter\nreferred to collectively with its direct and indirect subsidiaries and affiliates as the “Company”), and\n(the “Employee”). [For the avoidance of doubt, references to the Company in this Agreement include FM Systems\nLLC (d/b/a Tuition Management Systems LLC), except where the context otherwise requires.]\nIn consideration of the [initial and] continued employment of the Employee by the Company, and [consideration to be received by Employee] , the\nreceipt and sufficiency of which is hereby acknowledged by the Employee, the Company and the Employee agree as follows:\n1. Confidential Information\na) The Employee agrees that his or her employment with the Company has created a relationship of trust and confidence between the Employee\nand the Company, and the protection of the Company’s proprietary and Confidential Information (as defined in Section 1(b) below) and its\ngoodwill is critical to the Company’s survival and success. The Employee further represents and agrees that he/she (i) has held and will hold\nall Confidential Information in strict trust and confidence, and (ii) has not disclosed or used, and will not disclose or use at any time, any\nConfidential Information without the prior written consent of an authorized officer of the Company, except to the extent necessary in the\nordinary course of performing his/her duties as an employee of the Company and solely in furtherance of the interests of the Company.\nb) For purposes of this Agreement, the term “Confidential Information” means all information, knowledge or data, in any form or media,\nbelonging or relating to the Company (including securitization trusts) or former or current clients of the Company, which is of value to the\nCompany and the disclosure of which could result in competitive or other disadvantage to the Company. Confidential Information is and shall\nbe the exclusive property of the Company and includes, but is not limited to: (i) the Company’s documents, records, communications, reports,\nforecasts, projections, product and service specifications, statistical models, formulae and\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by new and existing employees of TMS.\nApplicable exclusively to agreements entered into by new employees of FMD and TMS.\nProvision reflects consideration specific to each employee’s individual agreement with FMD.\n-1-\n1\n2\n3\n4\n1\n2\n3\n4\nalgorithms, tools, designs, pricing methods and policies, processes, methods of operation, techniques, arrangements, procedures, current and\nplanned distribution methods and processes, strategic initiatives, business opportunities and strategies, creative plans and strategies, personnel\ninformation, policies, trade secrets, ideas, concepts, know-how, intangible rights, inventions, research and development, source code, systems,\narchitecture, computer programs and database technologies; (ii) information belonging or relating to the Company’s former or current\ncustomers, clients, service providers, consultants and other business relations, including the existence or status of, and any non-public\ninformation concerning, discussions between the Company and former, current, or prospective clients; (iii) the Company’s non-public\nbusiness, operational or financial results, including the performance of any loan portfolio facilitated by the Company, product development\ninitiatives, expansion plans and revenue and expense information; and (iv) information belonging or relating to any third party. In addition, the\nterm Confidential Information includes any notes, analyses, compilations, abstracts, studies, interpretations, memoranda or other documents\nthat contain, reflect or are based upon, in whole or in part, any Confidential Information, whether created by the Employee or others.\nConfidential Information includes information developed by the Employee in the course of his/her employment with the Company, as well as\nother information to which the Employee has or will have access during the period of his/her employment with the Company, including the\nconfidential information of others with whom the Company has a business relationship. The absence of any marking or statement that any\nparticular information is Confidential Information will not affect its status as Confidential Information.\nc) Confidential Information will not include information which is or becomes generally known to the public through no fault of any person. In\naddition, nothing in this Agreement is intended to or shall preclude the Employee from providing truthful testimony or providing truthful\ninformation in response to a valid subpoena, court order or request of any federal, state or local authority, quasi-regulatory or self-governing\nauthority, provided, to the extent permitted by law, the Employee has provided to the Company as much advance notice as practicable of any\nsuch compelled disclosure. The Employee further agrees to cooperate with the Company, at the Company’s cost, to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such governing\nauthority.\nd) The Employee agrees that all materials, in any form or media, that contain, reflect or are based upon, in whole or in part, Confidential\nInformation, whether created by the Employee or others, which have or will come into his/her custody or possession, are and will be the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company. All such tangible\nand intangible materials, and all copies, abstracts, compilations or reproductions thereof, and all property and equipment of the Company in the\ncustody or possession of the Employee will be left intact by the Employee and delivered to the Company, upon the earlier of (i) a request by\nthe Company or (ii) termination of his/her employment, whether voluntary or involuntary. After such delivery, the Employee will not retain\nany such tangible or intangible materials, or copies, abstracts, compilations or reproductions thereof, or any such property. For the avoidance\nof doubt, in connection with the voluntary or involuntary termination of his/her employment, the Employee agrees to leave intact all such\ntangible and intangible materials, including electronic documents of the Company, except in accordance with the Company’s document\nretention policies.\n-2-\ne) The Employee agrees that his/her obligations not to disclose or use Confidential Information as set forth in Sections 1(a) and (d) above, and\nhis/her obligations to return and leave intact tangible and intangible materials as set forth in Section 1(d) above, also extends to such types of\ninformation, materials and tangible property of former or current clients or customers of the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments\na) All Developments (as defined below) that are made, conceived, reduced to practice, created, written, designed or developed by the Employee\nor under his/her direction or jointly with others, whether or not during normal working hours or on the premises of the Company, (i) during the\nperiod of the Employee’s employment with the Company if related to the business or research and development conducted or planned to be\nconducted by the Company and (ii) after the period of the Employee’s employment with the Company if resulting or directly derived from\nConfidential Information, will be the sole property of the Company. For purposes of this Agreement, the term “Developments” means any\ninventions, discoveries, computer programs, source code, data, technology, designs, statistical models, formulae and algorithms, tools,\ninnovations, improvements, methods, techniques, developments and works of authorship, whether or not patentable and whether or not\ncopyrightable.\nb) The Employee will make full and prompt disclosure to the Company of all Developments and will maintain adequate and current written\nrecords (in the form of notes, memoranda and as may otherwise be specified by the Company) to document the conception and/or first actual\nreduction to practice of any Development. The Employee will not disclose any Development to any third party without the express written\npermission of an authorized officer of the Company, and all Developments will be treated by the Employee as Confidential Information. Such\nwritten records will be available to and remain the sole property of the Company at all times.\nc) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all of his/her\nright, title and interest in and to all Developments and all related patents, copyrights, trademarks, trade names, and other industrial and\nintellectual property rights, and all applications therefor, in the United States and elsewhere. However, this Section 2(c) will not apply to\nDevelopments which do not relate to the business or research and development conducted or planned to be conducted by the Company at the\ntime such Development is created, made, conceived or reduced to practice and which are made and conceived by the Employee not during\nnormal working hours, not on the Company’s premises and not using the Company’s tools, devices, equipment or Confidential Information.\nThe Employee understands that, to the extent this Agreement will be construed in accordance with the laws of any state which precludes a\nrequirement in an employee agreement to assign certain classes of inventions made by an employee, this Section 2(c) will be interpreted not to\napply to any invention which a court rules and/or the Company agrees falls within such classes.\n-3-\nd) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect to the\nprocurement, maintenance and enforcement of patents, copyrights, trademarks, trade names and other industrial and intellectual property rights\n(both in the United States and foreign countries) relating to Developments. The Employee hereby appoints any officer of the Company as the\nEmployee’s duly authorized attorney to execute, file, prosecute and protect any Development and related patent, copyright, trademark, trade\nname and other industrial and intellectual property right, and applications therefor, before any government agency, court or authority. Upon the\nrequest of the Company, the Employee will execute such further assignments, documents and other instruments as may be necessary, desirable\nor appropriate to fully and completely assign all Developments to the Company and assist the Company in applying for, obtaining and\nenforcing patents, copyrights or other rights in the United States and in any foreign jurisdiction with respect to any Development. The\nEmployee also hereby waives all claims to moral rights in any Developments.\ne) The Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of\nwork under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n3. Other Agreements\na) The Employee agrees to devote his/her best efforts to the services of the Company in such capacity as the Company from time to time shall\ndirect and agrees to comply with the Company’s rules, policies, and practices at all times.\nb) The Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nother third party.\nc) The Employee agrees that for a period of one year after the termination or cessation of his/her employment for any reason, whether voluntary\nor involuntary, the Employee will inform his/her potential or actual future employers of his/her obligations under this Agreement, including\nSections 1 and 4.\nd) The Employee specifically authorizes the Company to notify any subsequent employers or prospective employers of the Employee of the\nrestrictions on the Employee contained in this Agreement and of any concerns the Company may have about actual or possible conduct by the\nEmployee that may be in breach of this Agreement.\n-4-\ne) [In the event that the Employee believes that employment otherwise in violation of this Agreement would not harm the Company’s legitimate\nbusiness interests, the Employee may request the Company to waive certain of the restrictions contained in this Agreement. Any such request\nshall be made in writing to the Company’s Managing Director, Human Resources and shall identify the business with which the Employee\nseeks to associate and describe the duties that the Employee seeks to perform. The Company has the sole discretion whether to grant such a\nwaiver, and no waiver of any restrictions under this Agreement shall be effective unless in writing and signed by the Managing Director,\nHuman Resources of the Company.]\n{4. Non-Competition and Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly:\na)\nengage or assist others in engaging in any business or enterprise [in the United States] [in any state in which the Employee has performed any\nservices for the Company at any time during his or her employment] (whether as owner, partner, joint venturer, officer, director, employee,\nconsultant, contractor, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a publicly-held\ncompany) that competes or intends to compete in any way with the department, division or unit of the Company (i) for which the Employee\nworked, (ii) for which the Employee performed services, or (iii) about which the Employee had access to Confidential Information in the\ncourse of his/her employment with the Company;\nb) on his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated)\n(i) participate in the solicitation for employment, attempt to hire or hiring of any person or entity employed or otherwise retained or engaged\nby the Company, (ii) hire, employ or engage any person or entity employed or otherwise retained or engaged by the Company or\n(iii) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her employment,\nconsultancy or other relationship with the Company; provided, that this Section 4(b) will not apply to the solicitation, hiring or engagement of\nany person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer; and\nc)\non his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated), induce or\nattempt to induce (including, without limitation, by soliciting business from or performing services for) any customer, client, supplier,\nconsultant, licensee or business relation of the Company (i) to cease doing business with the Company, (ii) to reduce the level of business\nhe/she/it performs with the Company, or (iii) to divert marketing or other resources away from the Company.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff, non-Sales department employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff, Sales department employees of FMD and TMS.\n-5-\n5\n6\n7\n5\n6\n7\nIn addition, for a period of one year after the termination or cessation of the Employee’s employment with the Company for any reason, whether\nvoluntary or involuntary, the Employee will not directly or indirectly solicit or accept any financial services-related business (other than personal or\nhousehold financial services) from (i) any person or entity that was a client or customer of the Company at the date of any cessation or termination of\nthe Employee’s employment, if the Employee was introduced to or interacted with such client or customer regarding the Company’s business or\n(ii) any person or entity that was a prospect of the Company at any time during the 12 months immediately prior to the date of any cessation or\ntermination of the Employee’s employment, if the Employee directly solicited such prospect or if the Employee directly or indirectly, in whole or in\npart, supervised or participated in solicitation activities related to such prospect.}\n[4. Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly, on his/her own behalf or on behalf of any third person or entity, and\nwhether through his/her own efforts or by assisting any other person or entity (including any person employed by or associated with any entity with\nwhom the Employee becomes employed or associated): (a) participate in the solicitation for employment, attempt to hire or hiring of any person or\nentity employed or otherwise retained or engaged by the Company, (b) hire, employ or engage any person or entity employed or otherwise retained\nor engaged by the Company or (c) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her\nemployment, consultancy or other relationship with the Company; provided, that this Section 4 will not apply to the solicitation, hiring or\nengagement of any person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer.]\n5. No Employment Contract\nThe Employee understands that this Agreement does not constitute a contract of employment and does not alter the at-will nature of the Employee’s\nemployment with the Company or otherwise imply that his/her employment will continue for any period of time. The Employee understands that\nboth the Employee and the Company may end the employment relationship at any time and for any reason.\n6. Miscellaneous\na) The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this\nAgreement.\nb) If the Employee violates the provisions of Section 4, the Employee will continue to be bound by the restrictions set forth in Section 4 until a\nperiod of one year has expired without any violation of such provisions.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by staff level employees of FMD and TMS.\n-6-\n8\n9\n8\n9\nc) If any restriction set forth in Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a\nperiod of time or over too great a range of activities [or in too broad a geographic area] , it will be interpreted to extend only over the\nmaximum period of time, range of activities [or geographic area] as to which it may be enforceable.\nd) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed by the\nEmployee and the Company. The Employee agrees that any change or changes in his/her duties, authority, salary or compensation after the\nsigning of this Agreement will not affect the validity or scope of this Agreement.\ne) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company and its\nsuccessors and assigns.\nf) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver\nof any right on any other occasion.\ng) The Employee agrees that the obligations and restrictions contained in this Agreement, including the covenants contained in Sections 1, 2 and\n4, are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such\npurpose. The Employee agrees that any breach or threatened breach of this Agreement by the Employee is likely to cause the Company not\nonly financial harm, but substantial and irrevocable damage which is difficult to measure and for which money damages alone will not provide\nan adequate remedy. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, will be entitled to enforce the specific performance of the provisions of this Agreement by the\nEmployee and will have the right to both temporary and permanent injunctive relief (to the extent permitted by law), without the necessity of\nproving actual damages or posting any surety or bond, from a court restraining such a breach or threatened breach, and the Employee hereby\nwaives the adequacy of a remedy at law as a defense to such relief. If the Employee breaches any of the covenants set forth in this Agreement,\nhe/she agrees to pay all reasonable costs (including attorneys’ fees) incurred by the Company in establishing that breach and in otherwise\nenforcing any of the covenants or provisions of this Agreement.\nh) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced\nto resolve any matter arising under or relating to any provision of this Agreement will be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\nexclusive jurisdiction of such a court. Both the Employee and the Company waive the right to a trial by jury with respect to any matter arising\nunder or relating to any provision of this Agreement or otherwise related to the Employee’s employment with the Company or the termination\nof the Employee’s employment with the Company.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n-7-\n10\n11\n10\n11\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nTHE FIRST MARBLEHEAD CORPORATION\nBy:\nJo-Ann Burnham\nManaging Director, Human Resources\nEMPLOYEE\nName:\nDate:\n-8-
ccb7eab370b2a5ba987a2881da548e2b.pdf	effective_date jurisdiction party term	EX-99.D.2 13 d73402dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nAOL INC.\nCONFIDENTIAL NON-DISCLOSURE AGREEMENT\nEffective Date: January 16, 2015\nIn order to induce the parties hereto to disclose certain\nConfidential Information (as described below) and to protect such\nConfidential Information, AOL Inc., with offices at 22000 AOL Way,\nDulles, Virginia 20166 (“AOL”) and Millennial Media Inc. with\noffices at COMPANY ADDRESS (the “Company”) hereby agree as\nfollows:\n1. Disclosing Party: AOL and the Company are sometimes\nreferred to herein separately as a “Party” and together as the\n“Parties.” The Party disclosing Confidential Information is\nsometimes referred to herein as “Discloser” and the Party in receipt\nof such Confidential Information is sometimes referred to herein as\n“Recipient.”\n2. Primary Representative: Each Party’s representative for\ncoordinating disclosure or receipt of Confidential Information is:\n(i) AOL: Mark Roszkowski, Senior Vice President, AOL Inc., 770\nBroadway, New York, NY 10003; and (ii) the Company: CONTACT\nNAME, CONTACT’S TITLE, Millennial Media Inc., COMPANY\nADDRESS.\n3. Description of Confidential Information: For purposes of\nthis Confidential Non-Disclosure Agreement (“Agreement”),\n“Confidential Information” means any information which is disclosed\nduring the Term (as defined below) and which (i) is or should be\nreasonably understood to be confidential or proprietary to Discloser\nor its Affiliates (as defined below) (such information may include\nwithout limitation information concerning Discloser’s business,\nproducts, services, content, finances, subscribers, users, tools, source\ncode, product designs and plans, customer lists and other marketing\nand technical information, the terms and existence of this Agreement,\nand other unpublished information) or (ii) is so designated by\nDiscloser by prominently marking it with a “confidential,”\n“proprietary” or similar legend. “Affiliate(s)” shall mean an entity\ncontrolling, controlled by or under common control with a Party.\n4. Use of Confidential Information: Recipient shall make use\nof the Confidential Information only for the purpose of discussing\nand evaluating a possible business relationship between the Parties\n(the “Transaction”), described more fully as follows: an investment in\nand/or acquisition of the Company by AOL. During the Term of this\nAgreement, neither Party shall disclose the existence or nature of this\nAgreement or the Transaction to any third party without the other\nParty’s prior written consent.\n5. Term: This Agreement shall terminate six (6) months after\nthe Effective Date (the “Term”), however Recipient’s obligations to\nprotect Confidential Information shall survive for two (2) years after\ntermination.\n6. Standard of Care: Recipient shall not use Confidential\nInformation for any purpose other than the intended use set forth in\nparagraph 4 above, and shall not disclose, disseminate or otherwise\npublish or communicate Confidential Information of the other Party\nto any person, firm, corporation or other third party without the prior\nwritten consent of Discloser, except to Recipient’s employees,\nconsultants, Affiliates and representatives who have a need to know,\nwho have been informed of Recipient’s obligations hereunder, and\nwho have previously agreed (e.g ., as a condition of their employment\nor agency) to be bound by terms regarding the protection of\nconfidential information that are substantially similar to those of this\nAgreement and which would extend to Discloser’s Confidential\nInformation. Recipient agrees to use the same degree of care that it\nuses to protect its own confidential information of a like nature from\nunauthorized disclosure, but in no event less than a reasonable degree\nof care.\n7. Exclusions: This Agreement imposes no obligation upon\nRecipient with respect to information that: (i) was in Recipient’s\npossession before receipt from Discloser; (ii) is or becomes a matter\nof public knowledge through no fault of Recipient; (iii) is rightfully\nreceived by Recipient from a third party without a duty of\nconfidentiality; (iv) represents general conceptual information (as\ncompared to, e.g ., specific technical or financial information, specific\nproduct offerings or specific product ideas) which is incidentally\nretained in the unaided memories of persons who have had access to\nthe Confidential Information; (v) is independently developed by\nRecipient without use of Discloser’s Confidential Information; (vi) is\ndisclosed under operation of law, provided that the Recipient will use\nreasonable efforts to provide Discloser with prompt written notice of\nany such requirement in order to enable Discloser to seek an\nappropriate protective order or other remedy, and that Recipient will\ndisclose only such information as is legally required and will use\nreasonable efforts to obtain confidential treatment for any\nConfidential Information that is so disclosed; or (vii) is disclosed by\nRecipient with Discloser ’s prior written approval.\n8. Warranty: Each Discloser warrants that it has the right to\nmake the disclosures under this Agreement. NO OTHER\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nTHIS\nConfidential\n-2-\nAGREEMENT. ANY INFORMATION EXCHANGED UNDER\nTHIS AGREEMENT IS PROVIDED “AS IS”.\n9. Other Business Activities: (a) Nothing in this Agreement\nwill be construed as a representation or agreement to restrict\nreassignment of Recipient’s employees, or in any manner affect or\nlimit either Party’s present or future business activities.\n(b) Nothing in this Agreement will be construed as a\nrepresentation or agreement that Recipient will not develop or have\ndeveloped for it products, concepts, systems or techniques that are\nsimilar to or compete with any such products, concepts, systems or\ntechniques described in the Confidential Information, provided that\nRecipient does not violate any of its obligations under this Agreement\nin connection with such development.\n(c) This Agreement does not create any agency or partnership\nrelationship. Nothing in this Agreement shall be construed as\nimplying any commitment or agreement by either Party to make an\ninvestment in the other Party or in any business of the other Party or\nto enter into any other business arrangement of any nature\nwhatsoever.\n10. Ownership and Other Rights: Neither Party acquires any\nintellectual property rights under this Agreement except the limited\nrights necessary to carry out the intended use set forth in paragraph 4\n(Use of Confidential Information) above.\n11. Return of Confidential Information: Recipient will, at\nRecipient’s option, return or destroy all tangible material embodying\nConfidential Information (in any form or medium and including,\nwithout limitation, all summaries, copies and excerpts of Confidential\nInformation) at any such time as Discloser may so request.\nNotwithstanding anything contained herein to the contrary, and\nsubject to the continuing confidentiality obligations set forth herein,\nRecipient (a) will not be obligated to erase Confidential Information\ncontained in archived computer system backups in accordance with\nRecipient’s security and/or disaster recovery procedures, and (b) may\nmaintain one copy of any Confidential Information in Recipient’s\nrecords as may be required by the regulations and rules of any\ngovernmental agency or other regulatory authority, including any\nself-regulatory organization having, or claiming to have, jurisdiction.\n12. Injunctive Relief: Recipient acknowledges that disclosure\nor use of Confidential Information in violation of this Agreement\ncould cause irreparable harm to Discloser for which monetary\ndamages may be difficult to ascertain or an inadequate remedy.\nRecipient therefore agrees that Discloser will have the right, in\naddition to its other rights and remedies, to seek injunctive relief for\nany violation of this Agreement.\n13. Nonwaiver: Any failure by either Party to enforce the other\nParty’s strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision\nor any other provision of this Agreement.\n14. Miscellaneous: (a) Any notice, approval, request,\nauthorization, direction or other communication under this\nAgreement shall be given in writing and shall be deemed to have\nbeen delivered and given for all purposes (i) on the delivery date if\ndelivered personally to the Party to whom the same is directed;\n(ii) one (1) business day after deposit with a commercial overnight\ncarrier, with written verification of receipt, or (iii) five (5) business\ndays after the mailing date, whether or not actually received, if sent\nby U.S. mail, return receipt requested, postage and charges prepaid,\nor any other means of rapid mail delivery for which a receipt is\navailable. In the case of AOL, such notice will be provided to the\nDeputy General Counsel for Transactions, located at AOL Inc.,\n22000 AOL Way, Dulles, VA 20166. In the case of the Company,\nsuch notice will be provided to the Company Primary Representative\nidentified in paragraph 2 and the General Counsel, each located at the\naddress set forth in paragraph 2 above.\n(b) All additions or modifications to this Agreement must be\nmade in writing and signed by a duly authorized representative of\neach Party.\n(c) This Agreement shall be interpreted, construed and enforced\nin all respects in accordance with the laws of the State of New York\nexcept for its conflicts of laws principles. Each Party irrevocably\nconsents to the exclusive jurisdiction, forum and venue of the\nCommercial Division of the Supreme Court of the State of New\nYork, New York County and the United States District Court for the\nSouthern District of New York over any and all claims, disputes,\ncontroversies or disagreements between the Parties or any of their\nrespective subsidiaries, affiliates, successors and assigns under or\nrelated to this Agreement.\n(d) This Agreement may be executed in counterparts, each of\nwhich shall be deemed an original and both of which together shall\nconstitute one and the same document and such original signatures\nmay be delivered to the other Party by facsimile transmission or by\nemail.\nConfidential\n-3-\n(e) Neither Party shall assign or transfer any rights or\nobligations under this Agreement without the prior written consent of\nthe other Party; except that either Party may assign or transfer this\nAgreement to an Affiliate. Subject to the limitations set forth in this\nAgreement, this Agreement will inure to the benefit of and be\nbinding upon the Parties, their successors and assigns.\n(f) If any provision of this Agreement shall be held by a court of\ncompetent jurisdiction to be unenforceable, the remaining provisions\nshall remain in full force and effect.\n***\nAOL INC.\nBy: /s/ Mark Roszkowski\nName: Mark Roszkowski\nTitle: SVP, Head Corporate Development\nDate: 1/20/15\nMILLENNIAL MEDIA INC.\nBy: /s/ Michael Barrett\nName: Michael Barrett\nTitle: President & CEO\nDate: 1.19 .15	EX-99.D.2 13 d73402dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nAOL INC. CONFIDENTIAL NON-DISCLOSURE AGREEMENT Effective Date: January 16, 2015\nIn order to induce the parties hereto to disclose certain\nConfidential Information (as described below) and to protect such\nConfidential Information, AOL Inc., with offices at 22000 AOL Way,\nDulles, Virginia 20166 (“AOL”) and Millennial Media Inc. with\noffices at COMPANY ADDRESS (the “Company”) hereby agree as\nfollows:\n1. Disclosing Party: AOL and the Company are sometimes\nreferred to herein separately as a “Party” and together as the\n“Parties.” The Party disclosing Confidential Information is\nsometimes referred to herein as “Discloser” and the Party in receipt\nof such Confidential Information is sometimes referred to herein as\n“Recipient.”\n2. Primary Representative: Each Party’s representative for\ncoordinating disclosure or receipt of Confidential Information is:\n(i) AOL: Mark Roszkowski, Senior Vice President, AOL Inc., 770\nBroadway, New York, NY 10003; and (ii) the Company: CONTACT\nNAME, CONTACT’S TITLE, Millennial Media Inc., COMPANY\nADDRESS.\n3. Description of Confidential Information: For purposes of\nthis Confidential Non-Disclosure Agreement (“Agreement”),\n“Confidential Information” means any information which is disclosed\nduring the Term (as defined below) and which (i) is or should be\nreasonably understood to be confidential or proprietary to Discloser\nor its Affiliates (as defined below) (such information may include\nwithout limitation information concerning Discloser’s business,\nproducts, services, content, finances, subscribers, users, tools, source\ncode, product designs and plans, customer lists and other marketing\nand technical information, the terms and existence of this Agreement,\nand other unpublished information) or (ii) is so designated by\nDiscloser by prominently marking it with a “confidential,”\n“proprietary” or similar legend. “Affiliate(s)” shall mean an entity\ncontrolling, controlled by or under common control with a Party.\n4. Use of Confidential Information: Recipient shall make use\nof the Confidential Information only for the purpose of discussing\nand evaluating a possible business relationship between the Parties\n(the “Transaction”), described more fully as follows: an investment in\nand/or acquisition of the Company by AOL. During the Term of this\nAgreement, neither Party shall disclose the existence or nature of this\nAgreement or the Transaction to any third party without the other\nParty’s prior written consent.\n5. Term: This Agreement shall terminate six (6) months after\nthe Effective Date (the “Term”), however Recipient’s obligations to\nprotect Confidential Information shall survive for two (2) years after\ntermination.\n6. Standard of Care: Recipient shall not use Confidential\nInformation for any purpose other than the intended use set forth in\nparagraph 4 above, and shall not disclose, disseminate or otherwise\npublish or communicate Confidential Information of the other Party\nto any person, firm, corporation or other third party without the prior\nwritten consent of Discloser, except to Recipient’s employees,\nconsultants, Affiliates and representatives who have a need to know,\nwho have been informed of Recipient’s obligations hereunder, and\nwho have previously agreed (e.g., as a condition of their employment\nor agency) to be bound by terms regarding the protection of\nconfidential information that are substantially similar to those of this\nAgreement and which would extend to Discloser’s Confidential\nInformation. Recipient agrees to use the same degree of care that it\nuses to protect its own confidential information of a like nature from\nunauthorized disclosure, but in no event less than a reasonable degree\nof care.\n7. Exclusions: This Agreement imposes no obligation upon\nRecipient with respect to information that: (i) was in Recipient’s\npossession before receipt from Discloser; (ii) is or becomes a matter\nof public knowledge through no fault of Recipient; (iii) is rightfully\nreceived by Recipient from a third party without a duty of\nconfidentiality; (iv) represents general conceptual information (as\ncompared to, e.g., specific technical or financial information, specific\nproduct offerings or specific product ideas) which is incidentally\nretained in the unaided memories of persons who have had access to\nthe Confidential Information; (v) is independently developed by\nRecipient without use of Discloser’s Confidential Information; (vi) is\ndisclosed under operation of law, provided that the Recipient will use\nreasonable efforts to provide Discloser with prompt written notice of\nany such requirement in order to enable Discloser to seek an\nappropriate protective order or other remedy, and that Recipient will\ndisclose only such information as is legally required and will use\nreasonable efforts to obtain confidential treatment for any\nConfidential Information that is so disclosed; or (vii) is disclosed by\nRecipient with Discloser’s prior written approval.\n8. Warranty: Each Discloser warrants that it has the right to\nmake the disclosures under this Agreement. NO OTHER\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nTHIS\nAGREEMENT. ANY INFORMATION EXCHANGED UNDER\nTHIS AGREEMENT IS PROVIDED “AS IS”.\n9. Other Business Activities: (a) Nothing in this Agreement\nwill be construed as a representation or agreement to restrict\nreassignment of Recipient’s employees, or in any manner affect or\nlimit either Party’s present or future business activities.\n(b) Nothing in this Agreement will be construed as a\nrepresentation or agreement that Recipient will not develop or have\ndeveloped for it products, concepts, systems or techniques that are\nsimilar to or compete with any such products, concepts, systems or\ntechniques described in the Confidential Information, provided that\nRecipient does not violate any of its obligations under this Agreement\nin connection with such development.\n(c) This Agreement does not create any agency or partnership\nrelationship. Nothing in this Agreement shall be construed as\nimplying any commitment or agreement by either Party to make an\ninvestment in the other Party or in any business of the other Party or\nto enter into any other business arrangement of any nature\nwhatsoever.\n10. Ownership and Other Rights: Neither Party acquires any\nintellectual property rights under this Agreement except the limited\nrights necessary to carry out the intended use set forth in paragraph 4\n(Use of Confidential Information) above.\n11. Return of Confidential Information: Recipient will, at\nRecipient’s option, return or destroy all tangible material embodying\nConfidential Information (in any form or medium and including,\nwithout limitation, all summaries, copies and excerpts of Confidential\nInformation) at any such time as Discloser may so request.\nNotwithstanding anything contained herein to the contrary, and\nsubject to the continuing confidentiality obligations set forth herein,\nRecipient (a) will not be obligated to erase Confidential Information\ncontained in archived computer system backups in accordance with\nRecipient’s security and/or disaster recovery procedures, and (b) may\nmaintain one copy of any Confidential Information in Recipient’s\nrecords as may be required by the regulations and rules of any\ngovernmental agency or other regulatory authority, including any\nself-regulatory organization having, or claiming to have, jurisdiction.\n12. Injunctive Relief: Recipient acknowledges that disclosure\nor use of Confidential Information in violation of this Agreement\ncould cause irreparable harm to Discloser for which monetary\ndamages may be difficult to ascertain or an inadequate remedy.\n-\nConfidential\nRecipient therefore agrees that Discloser will have the right, in\naddition to its other rights and remedies, to seek injunctive relief for\nany violation of this Agreement.\n13. Nonwaiver: Any failure by either Party to enforce the other\nParty’s strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision\nor any other provision of this Agreement.\n14. Miscellaneous: (a) Any notice, approval, request,\nauthorization, direction or other communication under this\nAgreement shall be given in writing and shall be deemed to have\nbeen delivered and given for all purposes (i) on the delivery date if\ndelivered personally to the Party to whom the same is directed;\n(ii) one (1) business day after deposit with a commercial overnight\ncarrier, with written verification of receipt, or (iii) five (5) business\ndays after the mailing date, whether or not actually received, if sent\nby U.S. mail, return receipt requested, postage and charges prepaid,\nor any other means of rapid mail delivery for which a receipt is\navailable. In the case of AOL, such notice will be provided to the\nDeputy General Counsel for Transactions, located at AOL Inc.,\n22000 AOL Way, Dulles, VA 20166. In the case of the Company,\nsuch notice will be provided to the Company Primary Representative\nidentified in paragraph 2 and the General Counsel, each located at the\naddress set forth in paragraph 2 above.\n(b) All additions or modifications to this Agreement must be\nmade in writing and signed by a duly authorized representative of\neach Party.\n(c) This Agreement shall be interpreted, construed and enforced\nin all respects in accordance with the laws of the State of New York\nexcept for its conflicts of laws principles. Each Party irrevocably\nconsents to the exclusive jurisdiction, forum and venue of the\nCommercial Division of the Supreme Court of the State of New\nYork, New York County and the United States District Court for the\nSouthern District of New York over any and all claims, disputes,\ncontroversies or disagreements between the Parties or any of their\nrespective subsidiaries, affiliates, successors and assigns under or\nrelated to this Agreement.\n(d) This Agreement may be executed in counterparts, each of\nwhich shall be deemed an original and both of which together shall\nconstitute one and the same document and such original signatures\nmay be delivered to the other Party by facsimile transmission or by\nemail.\n(e) Neither Party shall assign or transfer any rights or\nobligations under this Agreement without the prior written consent of\nthe other Party; except that either Party may assign or transfer this\nAgreement to an Affiliate. Subject to the limitations set forth in this\nAgreement, this Agreement will inure to the benefit of and be\nbinding upon the Parties, their successors and assigns.\n(f) If any provision of this Agreement shall be held by a court of\ncompetent jurisdiction to be unenforceable, the remaining provisions\nshall remain in full force and effect.\n* Gk Gk\n-3-\nConfidential\nAOL INC.\nBy:  /s/ Mark Roszkowski\nName: Mark Roszkowski\nTitle: SVP, Head Corporate Development\nDate: 1/20/15\nMILLENNIAL MEDIA INC.\nBy:  /s/ Michael Barrett\nName: Michael Barrett\nTitle: President & CEO\nDate: 1.19.15	EX-99.D.2 13 d73402dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nAOL INC.\nCONFIDENTIAL NON-DISCLOSURE AGREEMENT\nEffective Date: January 16, 2015\n5. Term: This Agreement shall terminate six (6) months after\nthe Effective Date (the "Term"), however Recipient's obligations to\nIn order to induce the parties hereto to disclose certain\nprotect Confidential Information shall survive for two (2) years after\nConfidential Information (as described below) and to protect such\ntermination.\nConfidential Information, AOL Inc., with offices at 22000 AOL Way,\nDulles, Virginia 20166 ("AOL") and Millennial Media Inc. with\n6. Standard of Care: Recipient shall not use Confidential\noffices at COMPANY ADDRESS (the "Company") hereby agree as\nInformation for any purpose other than the intended use set forth in\nfollows:\nparagraph 4 above, and shall not disclose, disseminate or otherwise\npublish or communicate Confidential Information of the other Party\n1. Disclosing Party.: AOL and the Company are sometimes\nto any person, firm, corporation or other third party without the prior\nreferred to herein separately as a "Party" and together as the\nwritten consent of Discloser, except to Recipient's employees,\n"Parties." The Party disclosing Confidential Information is\nconsultants, Affiliates and representatives who have a need to know,\nsometimes referred to herein as "Discloser" and the Party in receipt\nwho have been informed of Recipient's obligations hereunder, and\nof such Confidential Information is sometimes referred to herein as\nwho have previously agreed (e.g., as a condition of their employment\n"Recipient."\nor agency) to be bound by terms regarding the protection of\nconfidential information that are substantially similar to those of this\n2. Primary Representative: Each Party's representative for\nAgreement and which would extend to Discloser's Confidential\ncoordinating disclosure or receipt of Confidential Information is:\nInformation. Recipient agrees to use the same degree of care that it\n(i) AOL: Mark Roszkowski, Senior Vice President, AOL Inc., 770\nuses to protect its own confidential information of a like nature from\nBroadway, New York, NY 10003; and (ii) the Company: CONTACT\nunauthorized disclosure, but in no event less than a reasonable degree\nNAME, CONTACT'S TITLE, Millennial Media Inc., COMPANY\nof care.\nADDRESS.\n7. Exclusions: This Agreement imposes no obligation upon\n3. Description of Confidential Information: For purposes of\nRecipient with respect to information that: (i) was in Recipient's\nthis Confidential Non-Disclosure Agreement ("Agreement"),\npossession before receipt from Discloser; (ii) is or becomes a matter\n"Confidential Information" means any information which is disclosed\nof public knowledge through no fault of Recipient; (iii) is rightfully\nduring the Term (as defined below) and which (i) is or should be\nreceived by Recipient from a third party without a duty of\nreasonably understood to be confidential or proprietary to Discloser\nconfidentiality; (iv) represents general conceptual information (as\nor its Affiliates (as defined below) (such information may include\ncompared to, e.g., specific technical or financial information, specific\nwithout limitation information concerning Discloser's business,\nproduct offerings or specific product ideas) which is incidentally\nproducts, services, content, finances, subscribers, users, tools, source\nretained in the unaided memories of persons who have had access to\ncode, product designs and plans, customer lists and other marketing\nthe Confidential Information; (v) is independently developed by\nand technical information, the terms and existence of this Agreement,\nRecipient without use of Discloser's Confidential Information; (vi) is\nand other unpublished information) or (ii) is so designated by\ndisclosed under operation of law, provided that the Recipient will use\nDiscloser by prominently marking it with a "confidential,"\nreasonable efforts to provide Discloser with prompt written notice of\n"proprietary" or similar legend. "Affiliate(s)" shall mean an entity\nany such requirement in order to enable Discloser to seek an\ncontrolling, controlled by or under common control with a Party.\nappropriate protective order or other remedy, and that Recipient will\ndisclose only such information as is legally required and will use\n4. Use of Confidential Information: Recipient shall make use\nreasonable efforts to obtain confidential treatment for any\nof the Confidential Information only for the purpose of discussing\nConfidential Information that is so disclosed; or (vii) is disclosed by\nand evaluating a possible business relationship between the Parties\nRecipient with Discloser's prior written approval.\n(the "Transaction"), described more fully as follows: an investment in\nand/or acquisition of the Company by AOL. During the Term of this\n8. Warranty: Each Discloser warrants that it has the right to\nAgreement, neither Party shall disclose the existence or nature of this\nmake the disclosures under this Agreement. NO OTHER\nAgreement or the Transaction to any third party without the other\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nParty's prior written consent.\nTHIS\nConfidential\nAGREEMENT. ANY INFORMATION EXCHANGED UNDER\nRecipient therefore agrees that Discloser will have the right, in\nTHIS AGREEMENT IS PROVIDED "AS IS"\naddition to its other rights and remedies, to seek injunctive relief for\nany violation of this Agreement.\n9. Other Business Activities: (a) Nothing in this Agreement\nwill be construed as a representation or agreement to restrict\n13. Nonwaiver: Any failure by either Party to enforce the other\nreassignment of Recipient's employees, or in any manner affect or\nParty's strict performance of any provision of this Agreement will not\nlimit either Party's present or future business activities.\nconstitute a waiver of its right to subsequently enforce such provision\nor any other provision of this Agreement.\n(b) Nothing in this Agreement will be construed as a\nrepresentation or agreement that Recipient will not develop or have\n14. Miscellaneous: (a) Any notice, approval, request,\ndeveloped for it products, concepts, systems or techniques that are\nauthorization, direction or other communication under this\nsimilar to or compete with any such products, concepts, systems or\nAgreement shall be given in writing and shall be deemed to have\ntechniques described in the Confidential Information, provided that\nbeen delivered and given for all purposes (i) on the delivery date if\nRecipient does not violate any of its obligations under this Agreement\ndelivered personally to the Party to whom the same is directed;\nin connection with such development.\n(ii) one (1) business day after deposit with a commercial overnight\ncarrier, with written verification of receipt, or (iii) five (5) business\n(c) This Agreement does not create any agency or partnership\ndays after the mailing date, whether or not actually received, if sent\nrelationship. Nothing in this Agreement shall be construed as\nby U.S. mail, return receipt requested, postage and charges prepaid,\nimplying any commitment or agreement by either Party to make an\nor any other means of rapid mail delivery for which a receipt is\ninvestment in the other Party or in any business of the other Party or\navailable. In the case of AOL, such notice will be provided to the\nto enter into any other business arrangement of any nature\nDeputy General Counsel for Transactions, located at AOL Inc.,\nwhatsoever.\n22000 AOL Way, Dulles, VA 20166. In the case of the Company,\nsuch notice will be provided to the Company Primary Representative\n10. Ownership and Other Rights: Neither Party acquires any\nidentified in paragraph 2 and the General Counsel, each located at the\nintellectual property rights under this Agreement except the limited\naddress set forth in paragraph 2 above.\nrights necessary to carry out the intended use set forth in paragraph 4\n(Use of Confidential Information) above.\n(b) All additions or modifications to this Agreement must be\nmade in writing and signed by a duly authorized representative of\n11. Return of Confidential Information: Recipient will, at\neach Party.\nRecipient's option, return or destroy all tangible material embodying\nConfidential Information (in any form or medium and including,\n(c) This Agreement shall be interpreted, construed and enforced\nwithout limitation, all summaries, copies and excerpts of Confidential\nin all respects in accordance with the laws of the State of New York\nInformation) at any such time as Discloser may SO request.\nexcept for its conflicts of laws principles. Each Party irrevocably\nNotwithstanding anything contained herein to the contrary, and\nconsents to the exclusive jurisdiction, forum and venue of the\nsubject to the continuing confidentiality obligations set forth herein,\nCommercial Division of the Supreme Court of the State of New\nRecipient (a) will not be obligated to erase Confidential Information\nYork, New York County and the United States District Court for the\ncontained in archived computer system backups in accordance with\nSouthern District of New York over any and all claims, disputes,\nRecipient's security and/or disaster recovery procedures, and (b) may\ncontroversies or disagreements between the Parties or any of their\nmaintain one copy of any Confidential Information in Recipient's\nrespective subsidiaries, affiliates, successors and assigns under or\nrecords as may be required by the regulations and rules of any\nrelated to this Agreement.\ngovernmental agency or other regulatory authority, including any\nself-regulatory organization having, or claiming to have, jurisdiction.\n(d) This Agreement may be executed in counterparts, each of\nwhich shall be deemed an original and both of which together shall\n12. Injunctive Relief: Recipient acknowledges that disclosure\nconstitute one and the same document and such original signatures\nor use of Confidential Information in violation of this Agreement\nmay be delivered to the other Party by facsimile transmission or by\ncould cause irreparable harm to Discloser for which monetary\nemail.\ndamages may be difficult to ascertain or an inadequate remedy.\n-2-\nConfidential\n(e) Neither Party shall assign or transfer any rights or\nAOL INC.\nobligations under this Agreement without the prior written consent of\nthe other Party; except that either Party may assign or transfer this\nBy:\n/s/ Mark Roszkowski\nAgreement to an Affiliate. Subject to the limitations set forth in this\nAgreement, this Agreement will inure to the benefit of and be\nName: Mark Roszkowski\nbinding upon the Parties, their successors and assigns.\nTitle: SVP, Head Corporate Development\n(f) If any provision of this Agreement shall be held by a court of\nDate: 1/20/15\ncompetent jurisdiction to be unenforceable, the remaining provisions\nshall remain in full force and effect.\nMILLENNIAL MEDIA INC.\n> >k >k\nBy:\n/s/ Michael Barrett\nName: Michael Barrett\nTitle: President & CEO\nDate: 1.19.15\n-3-	EX-99.D.2 13 d73402dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nAOL INC.\nCONFIDENTIAL NON-DISCLOSURE AGREEMENT\nEffective Date: January 16, 2015\nIn order to induce the parties hereto to disclose certain\nConfidential Information (as described below) and to protect such\nConfidential Information, AOL Inc., with offices at 22000 AOL Way,\nDulles, Virginia 20166 (“AOL”) and Millennial Media Inc. with\noffices at COMPANY ADDRESS (the “Company”) hereby agree as\nfollows:\n1. Disclosing Party: AOL and the Company are sometimes\nreferred to herein separately as a “Party” and together as the\n“Parties.” The Party disclosing Confidential Information is\nsometimes referred to herein as “Discloser” and the Party in receipt\nof such Confidential Information is sometimes referred to herein as\n“Recipient.”\n2. Primary Representative: Each Party’s representative for\ncoordinating disclosure or receipt of Confidential Information is:\n(i) AOL: Mark Roszkowski, Senior Vice President, AOL Inc., 770\nBroadway, New York, NY 10003; and (ii) the Company: CONTACT\nNAME, CONTACT’S TITLE, Millennial Media Inc., COMPANY\nADDRESS.\n3. Description of Confidential Information: For purposes of\nthis Confidential Non-Disclosure Agreement (“Agreement”),\n“Confidential Information” means any information which is disclosed\nduring the Term (as defined below) and which (i) is or should be\nreasonably understood to be confidential or proprietary to Discloser\nor its Affiliates (as defined below) (such information may include\nwithout limitation information concerning Discloser’s business,\nproducts, services, content, finances, subscribers, users, tools, source\ncode, product designs and plans, customer lists and other marketing\nand technical information, the terms and existence of this Agreement,\nand other unpublished information) or (ii) is so designated by\nDiscloser by prominently marking it with a “confidential,”\n“proprietary” or similar legend. “Affiliate(s)” shall mean an entity\ncontrolling, controlled by or under common control with a Party.\n4. Use of Confidential Information: Recipient shall make use\nof the Confidential Information only for the purpose of discussing\nand evaluating a possible business relationship between the Parties\n(the “Transaction”), described more fully as follows: an investment in\nand/or acquisition of the Company by AOL. During the Term of this\nAgreement, neither Party shall disclose the existence or nature of this\nAgreement or the Transaction to any third party without the other\nParty’s prior written consent.\n5. Term: This Agreement shall terminate six (6) months after\nthe Effective Date (the “Term”), however Recipient’s obligations to\nprotect Confidential Information shall survive for two (2) years after\ntermination.\n6. Standard of Care: Recipient shall not use Confidential\nInformation for any purpose other than the intended use set forth in\nparagraph 4 above, and shall not disclose, disseminate or otherwise\npublish or communicate Confidential Information of the other Party\nto any person, firm, corporation or other third party without the prior\nwritten consent of Discloser, except to Recipient’s employees,\nconsultants, Affiliates and representatives who have a need to know,\nwho have been informed of Recipient’s obligations hereunder, and\nwho have previously agreed (e.g ., as a condition of their employment\nor agency) to be bound by terms regarding the protection of\nconfidential information that are substantially similar to those of this\nAgreement and which would extend to Discloser’s Confidential\nInformation. Recipient agrees to use the same degree of care that it\nuses to protect its own confidential information of a like nature from\nunauthorized disclosure, but in no event less than a reasonable degree\nof care.\n7. Exclusions: This Agreement imposes no obligation upon\nRecipient with respect to information that: (i) was in Recipient’s\npossession before receipt from Discloser; (ii) is or becomes a matter\nof public knowledge through no fault of Recipient; (iii) is rightfully\nreceived by Recipient from a third party without a duty of\nconfidentiality; (iv) represents general conceptual information (as\ncompared to, e.g ., specific technical or financial information, specific\nproduct offerings or specific product ideas) which is incidentally\nretained in the unaided memories of persons who have had access to\nthe Confidential Information; (v) is independently developed by\nRecipient without use of Discloser’s Confidential Information; (vi) is\ndisclosed under operation of law, provided that the Recipient will use\nreasonable efforts to provide Discloser with prompt written notice of\nany such requirement in order to enable Discloser to seek an\nappropriate protective order or other remedy, and that Recipient will\ndisclose only such information as is legally required and will use\nreasonable efforts to obtain confidential treatment for any\nConfidential Information that is so disclosed; or (vii) is disclosed by\nRecipient with Discloser ’s prior written approval.\n8. Warranty: Each Discloser warrants that it has the right to\nmake the disclosures under this Agreement. NO OTHER\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nTHIS\nConfidential\n-2-\nAGREEMENT. ANY INFORMATION EXCHANGED UNDER\nTHIS AGREEMENT IS PROVIDED “AS IS”.\n9. Other Business Activities: (a) Nothing in this Agreement\nwill be construed as a representation or agreement to restrict\nreassignment of Recipient’s employees, or in any manner affect or\nlimit either Party’s present or future business activities.\n(b) Nothing in this Agreement will be construed as a\nrepresentation or agreement that Recipient will not develop or have\ndeveloped for it products, concepts, systems or techniques that are\nsimilar to or compete with any such products, concepts, systems or\ntechniques described in the Confidential Information, provided that\nRecipient does not violate any of its obligations under this Agreement\nin connection with such development.\n(c) This Agreement does not create any agency or partnership\nrelationship. Nothing in this Agreement shall be construed as\nimplying any commitment or agreement by either Party to make an\ninvestment in the other Party or in any business of the other Party or\nto enter into any other business arrangement of any nature\nwhatsoever.\n10. Ownership and Other Rights: Neither Party acquires any\nintellectual property rights under this Agreement except the limited\nrights necessary to carry out the intended use set forth in paragraph 4\n(Use of Confidential Information) above.\n11. Return of Confidential Information: Recipient will, at\nRecipient’s option, return or destroy all tangible material embodying\nConfidential Information (in any form or medium and including,\nwithout limitation, all summaries, copies and excerpts of Confidential\nInformation) at any such time as Discloser may so request.\nNotwithstanding anything contained herein to the contrary, and\nsubject to the continuing confidentiality obligations set forth herein,\nRecipient (a) will not be obligated to erase Confidential Information\ncontained in archived computer system backups in accordance with\nRecipient’s security and/or disaster recovery procedures, and (b) may\nmaintain one copy of any Confidential Information in Recipient’s\nrecords as may be required by the regulations and rules of any\ngovernmental agency or other regulatory authority, including any\nself-regulatory organization having, or claiming to have, jurisdiction.\n12. Injunctive Relief: Recipient acknowledges that disclosure\nor use of Confidential Information in violation of this Agreement\ncould cause irreparable harm to Discloser for which monetary\ndamages may be difficult to ascertain or an inadequate remedy.\nRecipient therefore agrees that Discloser will have the right, in\naddition to its other rights and remedies, to seek injunctive relief for\nany violation of this Agreement.\n13. Nonwaiver: Any failure by either Party to enforce the other\nParty’s strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision\nor any other provision of this Agreement.\n14. Miscellaneous: (a) Any notice, approval, request,\nauthorization, direction or other communication under this\nAgreement shall be given in writing and shall be deemed to have\nbeen delivered and given for all purposes (i) on the delivery date if\ndelivered personally to the Party to whom the same is directed;\n(ii) one (1) business day after deposit with a commercial overnight\ncarrier, with written verification of receipt, or (iii) five (5) business\ndays after the mailing date, whether or not actually received, if sent\nby U.S. mail, return receipt requested, postage and charges prepaid,\nor any other means of rapid mail delivery for which a receipt is\navailable. In the case of AOL, such notice will be provided to the\nDeputy General Counsel for Transactions, located at AOL Inc.,\n22000 AOL Way, Dulles, VA 20166. In the case of the Company,\nsuch notice will be provided to the Company Primary Representative\nidentified in paragraph 2 and the General Counsel, each located at the\naddress set forth in paragraph 2 above.\n(b) All additions or modifications to this Agreement must be\nmade in writing and signed by a duly authorized representative of\neach Party.\n(c) This Agreement shall be interpreted, construed and enforced\nin all respects in accordance with the laws of the State of New York\nexcept for its conflicts of laws principles. Each Party irrevocably\nconsents to the exclusive jurisdiction, forum and venue of the\nCommercial Division of the Supreme Court of the State of New\nYork, New York County and the United States District Court for the\nSouthern District of New York over any and all claims, disputes,\ncontroversies or disagreements between the Parties or any of their\nrespective subsidiaries, affiliates, successors and assigns under or\nrelated to this Agreement.\n(d) This Agreement may be executed in counterparts, each of\nwhich shall be deemed an original and both of which together shall\nconstitute one and the same document and such original signatures\nmay be delivered to the other Party by facsimile transmission or by\nemail.\nConfidential\n-3-\n(e) Neither Party shall assign or transfer any rights or\nobligations under this Agreement without the prior written consent of\nthe other Party; except that either Party may assign or transfer this\nAgreement to an Affiliate. Subject to the limitations set forth in this\nAgreement, this Agreement will inure to the benefit of and be\nbinding upon the Parties, their successors and assigns.\n(f) If any provision of this Agreement shall be held by a court of\ncompetent jurisdiction to be unenforceable, the remaining provisions\nshall remain in full force and effect.\n***\nAOL INC.\nBy: /s/ Mark Roszkowski\nName: Mark Roszkowski\nTitle: SVP, Head Corporate Development\nDate: 1/20/15\nMILLENNIAL MEDIA INC.\nBy: /s/ Michael Barrett\nName: Michael Barrett\nTitle: President & CEO\nDate: 1.19 .15
ccbc824d314554aa3413b07bef70618d.pdf	effective_date jurisdiction party term	EX-10.01 2 dex1001.htm LETTER AGREEMENT, AND CONFIDENTIALITY AND BUSINESS PROTECTION\nAGREEMENT\nExhibit 10.01\n[Cardinal Health Letterhead]\nNovember 8, 2006\nMark Parrish\nCardinal Health\n7000 Cardinal Place\nDublin, OH 43017\nDear Mark:\nIt is with great pleasure that I confirm in writing your promotion and the terms of your employment in your new position with Cardinal Health, Inc.\n(the “Company” or “Cardinal Health”). This letter will replace your existing employment agreement dated September 2, 2005, which you agree will\nno longer apply:\n1. Your new position will be CEO Healthcare Supply Chain Services. In this position, you will be reporting directly to me. During your\nemployment, you will also serve on the Executive Leadership Team of Cardinal Health. The effective date of your appointment to this\nposition is November 8, 2006.\n2. Your annual base salary will be $700,000.00, and your cash compensation profile will be reviewed at regular annual intervals by the\nHuman Resources and Compensation Committee of the Board of Directors (Compensation Committee), along with all other officers of\nCardinal Health.\n3. You will continue to participate in our Management Incentive Plan (MIP). Your target annual incentive will be 100% of your base salary.\nYour base salary and incentive for the remainder of fiscal year 2007 (ending June 30, 2007) will be ratably adjusted to reflect the\ncompensation of your new position.\n4. You will also continue to participate in the Long-Term Incentive Cash Program for Fiscal Years 2006 – FY2008 (LTICP). Your target\nopportunity in the LTICP is your cumulative MIP payouts during the performance period.\n5. Upon appointment to your new position, you will receive an award of 35,000 Cardinal Health stock options along with an award of\n5,000 Cardinal Health restricted share units (RSUs). These and the equity grants made in August 2006 will represent your fiscal year\n2007 awards. Your additional award of 35,000 stock options will vest in annual installments of 25% on each of the first four\nanniversaries of the grant date. The additional award of 5,000 restricted share units will vest in annual installments of 33.33% on each of\nthe first three anniversaries of the grant date. The grant date of these awards will be November 15, 2006. You will be eligible for the next\nregular annual award of stock or stock options in fiscal year 2008. Standard terms and conditions will apply to these equity awards. The\nRSUs awarded pursuant to this Paragraph 5 will also be subject to deferred payment if you so elect on the enclosed election form.\nMark Parrish\nNovember 8, 2006\nPage 2\n6. Upon appointment to your new position, you will also be awarded a special equity award of 35,000 Cardinal Health restricted share\nunits. This special award of RSUs will vest in full on the third anniversary of the grant date. If you are terminated without cause or if you\nterminate with “good reason” (as defined in paragraph 8 below), RSUs granted under this special equity award will vest in full on the\ndate of such termination. The grant date of this award will also be November 15, 2006. Other than the special vesting provision\ndescribed above, standard terms and conditions will apply to the special equity award. 30,000 of the RSUs under this special equity\naward will also be subject to deferred payment until 6 months after your separation from employment with the Company.\n7. You will continue to be eligible to participate in and receive benefits under other Cardinal Health employee benefit plans and programs\n(e.g., plans and programs that provide medical, life insurance and other welfare and retirement benefits as well as the Company’s\nsavings, employee stock purchase and deferred compensation plans) to the same extent as, and on the same terms and conditions as,\nother similarly situated executives of the Company.\n8. If your employment is terminated by the Company without cause, or if you voluntarily terminate your employment for “good reason,”\n(either event being a “Payment Termination”), the Company will provide you with severance equal to the sum of twelve months of your\nbase salary as in effect on the day immediately prior to the date of termination plus your target annual bonus for the fiscal year of the\nCompany in which your termination occurs, such amount to be divided into twelve (12) equal installments. Your severance will be paid\nin equal monthly installments over the 12 month period following the Payment Termination event. In addition, if you are not yet age 55\nat the time of a Payment Termination, you will be “bridged” to retirement by deeming the termination to occur at or after your attainment\nof age 55, regardless of your actual age at that time, with such a termination qualifying as a “retirement” under the terms of your\noutstanding equity awards as well as other applicable plans, subject to the terms of such awards and plans, including the plans under\nwhich the equity awards were made. In addition to the benefits of termination by reason of retirement under the terms of your\noutstanding equity awards and other applicable plans, the effect of a “retirement” under any equity awards that do not already provide for\nratable vesting will be to result in the ratable vesting of any unvested stock options or RSUs based on the portion of the remaining\nvesting period elapsed at the date of the Payment Termination. You will be considered to have “good reason” to voluntarily terminate\nemployment only if there is a material diminution of your duties. However, a change in your reporting relationship will not alone\nconstitute such a diminution. If the severance payments are subject to Section 409A of the Internal Revenue Code, Cardinal Health may\ndelay payment of the first seven (7) months of severance payments until after six (6) months and one day from the date of your\ntermination of employment. If payment is delayed, seven (7) installments shall be payable, with interest as described below, as soon as\nadministratively practicable after the date which is six (6) months after the termination date, and one (1) installment shall be payable\neach month thereafter for a total of five (5) additional months, with interest credited to the first seven (7) installments as determined\nbased on the “Prime Rate” (as published in the Wall Street Journal) to the date of payment as though one such installment were allocated\nto each month between the termination date and the date of payment.\nMark Parrish\nNovember 8, 2006\nPage 3\n9. If any payments, distributions, accelerated vesting or other benefits (“Payments”) are provided in connection with a change in control of\nthe Company such that they would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code,\nthe Payments will be reduced to the extent necessary so that no portion of the Payments will be subject to the excise tax imposed by\nSection 4999 of the Internal Revenue Code. This reduction will only occur, however, if, as a result, the net after-tax benefit to you\nexceeds the net after-tax benefit if no reduction is made. For this purpose, the net after-tax benefit shall be calculated by the Company’s\nindependent certified public accountants based on then applicable federal, state, local and foreign income and employment taxes\ncomputed at the maximum marginal rate, and the excise tax under Section 4999 of the Internal Revenue Code. If it is determined that the\nPayments will be reduced, you will be permitted to decide which Payments are to be reduced.\n10. Employment with Cardinal Health is not for any definite period of time and is terminable, with notice, at the will of either you or the\nCompany at any time for any reason. There shall be no contract, express or implied, of employment. However, you agree to be bound by\nthe terms of the attached covenants related to confidentiality and protection of the Company’s business interests. This agreement must be\nsigned and delivered to the Company on or before the effective date of your appointment to your new position. In addition, if any of the\nprovisions of this letter agreement are determined to result, directly or indirectly, in a violation of Internal Revenue Code Section 409A,\nthey will be amended to conform to the requirements of such Code Section.\nMark, congratulations on your new position. We all look forward to working with you in your new role.\nSincerely,\n/s/ R. Kerry Clark\nR. Kerry Clark\nEnclosures\ncc: Human Resources\nI accept the above terms and conditions of my continued employment and acknowledge that my September 2, 2005 employment agreement is\nno longer in effect:\n/s/ Mark W. Parrish\n11/9/06\nMark Parrish\nDate\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between Mark Parrish (“Executive”) and\nCardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of November 8, 2006.\nIt is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement between the parties effective as of November 8, 2006, and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive’s ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9(a) below are accurate and necessary because (i) this Agreement is entered into\nin the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the Company,\nwhich has operations nationwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law provides certainty\nto the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not violate any\nfundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the “Cardinal Group”), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive’s employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive’s\nviolation of this Agreement) (“Confidential Information”). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential Information at any time during or after the Executive’s employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the Executive’s employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and\nshall be turned over to the applicable Cardinal Group company upon termination of the Executive’s employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a “Solicitation”): (i) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent,\nconsultant or independent contractor) any person who was or is at any time during the previous twelve months an employee, representative, officer\nor director of the Cardinal Group; or (ii) take any action to encourage or induce any employee, representative, officer or director of the Cardinal\nGroup to cease their relationship with the Cardinal Group for any reason. A “Solicitation” does not include any recruitment of employees within or\nfor the Cardinal Group. The “Restricted Period” means the period of Executive’s employment with the Cardinal Group (without regard to any period\nduring which Executive serves as a consulting employee) and the additional period ending eighteen (18) months after the Executive’s date of\ntermination of employment or date of retirement, as applicable.\n4. No Competition — Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive’s employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\n5. No Competition — Employment by Competitor. During the Restricted Period, the Executive shall not invest in (other than in a publicly\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a “Competitor”).\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the Executive’s employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the\ncircumstances of the termination of the Executive’s employment, or about the Cardinal Group or its trustees, directors, officers, security holders,\npartners, agents or former or current employees and directors, except as may be required by a court or governmental body.\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive’s employment with the Company,\nincluding but not limited to any litigation that may be pending or may arise after such termination of employment. Further, the Executive agrees to\nnotify the Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company\nshall not unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive,\ntaking into account the Executive’s business and personal affairs, and shall\ncompensate the Executive for any lost wages or expenses associated with such cooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive’s initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive’s employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property. The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive’s entire right, title and interest in and to any such discoveries and improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement. The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the covenants of this Agreement; and (C) remedies at\nlaw (such as monetary damages) for any breach of the Executive’s obligations under this Agreement would be inadequate. The Executive therefore\nagrees and consents that if the Executive commits any breach of a covenant under this Agreement or threatens to commit any such breach, the\nCompany shall have the right (in addition to, and not in lieu of, any other right or remedy that may be available to it) to temporary and permanent\ninjunctive relief from a court of competent jurisdiction, without posting any bond or other security and without the necessity of proof of actual\ndamage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive:\nAt the most recent address on file for the Executive at the Company.\nIf to the Company: Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n(d) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\nExecution Date: November 7, 2006\n/s/ Mark W. Parrish\nMARK PARRISH\n/s/ R. Kerry Clark\nCARDINAL HEALTH, INC.\nExecution Date: November 8, 2006\nBy: Kerry Clark\nIts: President and Chief Executive Officer	EX-10.01 2 dex1001.htm LETTER AGREEMENT, AND CONFIDENTIALITY AND BUSINESS PROTECTION\nAGREEMENT\nExhibit 10.01\n[Cardinal Health Letterhead]\nNovember 8, 2006\nMark Parrish\nCardinal Health\n7000 Cardinal Place\nDublin, OH 43017\nDear Mark:\nIt is with great pleasure that I confirm in writing your promotion and the terms of your employment in your new position with Cardinal Health, Inc.\n(the “Company” or “Cardinal Health”). This letter will replace your existing employment agreement dated September 2, 2005, which you agree will\nno longer apply:\n1.  Your new position will be CEO Healthcare Supply Chain Services. In this position, you will be reporting directly to me. During your\nemployment, you will also serve on the Executive Leadership Team of Cardinal Health. The effective date of your appointment to this\nposition is November 8, 2006.\n2. Your annual base salary will be $700,000.00, and your cash compensation profile will be reviewed at regular annual intervals by the\nHuman Resources and Compensation Committee of the Board of Directors (Compensation Committee), along with all other officers of\nCardinal Health.\n3. You will continue to participate in our Management Incentive Plan (MIP). Your target annual incentive will be 100% of your base salary.\nYour base salary and incentive for the remainder of fiscal year 2007 (ending June 30, 2007) will be ratably adjusted to reflect the\ncompensation of your new position.\n4.  You will also continue to participate in the Long-Term Incentive Cash Program for Fiscal Years 2006 — FY2008 (LTICP). Your target\nopportunity in the LTICP is your cumulative MIP payouts during the performance period.\n5. Upon appointment to your new position, you will receive an award of 35,000 Cardinal Health stock options along with an award of\n5,000 Cardinal Health restricted share units (RSUs). These and the equity grants made in August 2006 will represent your fiscal year\n2007 awards. Your additional award of 35,000 stock options will vest in annual installments of 25% on each of the first four\nanniversaries of the grant date. The additional award of 5,000 restricted share units will vest in annual installments of 33.33% on each of\nthe first three anniversaries of the grant date. The grant date of these awards will be November 15, 2006. You will be eligible for the next\nregular annual award of stock or stock options in fiscal year 2008. Standard terms and conditions will apply to these equity awards. The\nRSUs awarded pursuant to this Paragraph 5 will also be subject to deferred payment if you so elect on the enclosed election form.\nMark Parrish November 8, 2006 Page 2\n6. Upon appointment to your new position, you will also be awarded a special equity award of 35,000 Cardinal Health restricted share\nunits. This special award of RSUs will vest in full on the third anniversary of the grant date. If you are terminated without cause or if you\nterminate with “good reason” (as defined in paragraph 8 below), RSUs granted under this special equity award will vest in full on the\ndate of such termination. The grant date of this award will also be November 15, 2006. Other than the special vesting provision\ndescribed above, standard terms and conditions will apply to the special equity award. 30,000 of the RSUs under this special equity\naward will also be subject to deferred payment until 6 months after your separation from employment with the Company.\nYou will continue to be eligible to participate in and receive benefits under other Cardinal Health employee benefit plans and programs\n(e.g., plans and programs that provide medical, life insurance and other welfare and retirement benefits as well as the Company’s\nsavings, employee stock purchase and deferred compensation plans) to the same extent as, and on the same terms and conditions as,\nother similarly situated executives of the Company.\nIf your employment is terminated by the Company without cause, or if you voluntarily terminate your employment for “good reason,”\n(either event being a “Payment Termination”), the Company will provide you with severance equal to the sum of twelve months of your\nbase salary as in effect on the day immediately prior to the date of termination plus your target annual bonus for the fiscal year of the\nCompany in which your termination occurs, such amount to be divided into twelve (12) equal installments. Your severance will be paid\nin equal monthly installments over the 12 month period following the Payment Termination event. In addition, if you are not yet age 55\nat the time of a Payment Termination, you will be “bridged” to retirement by deeming the termination to occur at or after your attainment\nof age 55, regardless of your actual age at that time, with such a termination qualifying as a “retirement” under the terms of your\noutstanding equity awards as well as other applicable plans, subject to the terms of such awards and plans, including the plans under\nwhich the equity awards were made. In addition to the benefits of termination by reason of retirement under the terms of your\noutstanding equity awards and other applicable plans, the effect of a “retirement” under any equity awards that do not already provide for\nratable vesting will be to result in the ratable vesting of any unvested stock options or RSUs based on the portion of the remaining\nvesting period elapsed at the date of the Payment Termination. You will be considered to have “good reason” to voluntarily terminate\nemployment only if there is a material diminution of your duties. However, a change in your reporting relationship will not alone\nconstitute such a diminution. If the severance payments are subject to Section 409A of the Internal Revenue Code, Cardinal Health may\ndelay payment of the first seven (7) months of severance payments until after six (6) months and one day from the date of your\ntermination of employment. If payment is delayed, seven (7) installments shall be payable, with interest as described below, as soon as\nadministratively practicable after the date which is six (6) months after the termination date, and one (1) installment shall be payable\neach month thereafter for a total of five (5) additional months, with interest credited to the first seven (7) installments as determined\nbased on the “Prime Rate” (as published in the Wall Street Journal) to the date of payment as though one such installment were allocated\nto each month between the termination date and the date of payment.\nMark Parrish November 8, 2006 Page 3\n9.\n10.\nIf any payments, distributions, accelerated vesting or other benefits (“Payments™) are provided in connection with a change in control of\nthe Company such that they would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code,\nthe Payments will be reduced to the extent necessary so that no portion of the Payments will be subject to the excise tax imposed by\nSection 4999 of the Internal Revenue Code. This reduction will only occur, however, if, as a result, the net after-tax benefit to you\nexceeds the net after-tax benefit if no reduction is made. For this purpose, the net after-tax benefit shall be calculated by the Company’s\nindependent certified public accountants based on then applicable federal, state, local and foreign income and employment taxes\ncomputed at the maximum marginal rate, and the excise tax under Section 4999 of the Internal Revenue Code. If it is determined that the\nPayments will be reduced, you will be permitted to decide which Payments are to be reduced.\nEmployment with Cardinal Health is not for any definite period of time and is terminable, with notice, at the will of either you or the\nCompany at any time for any reason. There shall be no contract, express or implied, of employment. However, you agree to be bound by\nthe terms of the attached covenants related to confidentiality and protection of the Company’s business interests. This agreement must be\nsigned and delivered to the Company on or before the effective date of your appointment to your new position. In addition, if any of the\nprovisions of this letter agreement are determined to result, directly or indirectly, in a violation of Internal Revenue Code Section 409A,\nthey will be amended to conform to the requirements of such Code Section.\nMark, congratulations on your new position. We all look forward to working with you in your new role. Sincerely,\n/s/ R. Kerry Clark R. Kerry Clark Enclosures\ncc: Human Resources I accept the above terms and conditions of my continued employment and acknowledge that my September 2, 2005 employment agreement is no longer in effect: /s/ Mark W. Parrish 11/9/06 Mark Parrish Date\fConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between Mark Parrish (“Executive”) and\nCardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of November 8, 2006.\nIt is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement between the parties effective as of November 8, 2006, and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive’s ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9(a) below are accurate and necessary because (i) this Agreement is entered into\nin the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the Company,\nwhich has operations nationwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law provides certainty\nto the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not violate any\nfundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the “Cardinal Group™), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive’s employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive’s\nviolation of this Agreement) (“Confidential Information”). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential Information at any time during or after the Executive’s employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the Executive’s employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and\nshall be turned over to the applicable Cardinal Group company upon termination of the Executive’s employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a “Solicitation”): (i) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent,\nconsultant or independent contractor) any person who was or is at any time during the previous twelve months an employee, representative, officer\nor director of the Cardinal Group; or (ii) take any action to encourage or induce any employee, representative, officer or director of the Cardinal\nGroup to cease their relationship with the Cardinal Group for any reason. A “Solicitation” does not include any recruitment of employees within or\nfor the Cardinal Group. The “Restricted Period” means the period of Executive’s employment with the Cardinal Group (without regard to any period\nduring which Executive serves as a consulting employee) and the additional period ending eighteen (18) months after the Executive’s date of\ntermination of employment or date of retirement, as applicable.\n4. No Competition — Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive’s employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a “Competitor”).\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the Executive’s employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the\ncircumstances of the termination of the Executive’s employment, or about the Cardinal Group or its trustees, directors, officers, security holders,\npartners, agents or former or current employees and directors, except as may be required by a court or governmental body.\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive’s employment with the Company,\nincluding but not limited to any litigation that may be pending or may arise after such termination of employment. Further, the Executive agrees to\nnotify the Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company\nshall not unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive,\ntaking into account the Executive’s business and personal affairs, and shall\ncompensate the Executive for any lost wages or expenses associated with such cooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive’s initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive’s employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property. The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive’s entire right, title and interest in and to any such discoveries and improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement. The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the covenants of this Agreement; and (C) remedies at\nlaw (such as monetary damages) for any breach of the Executive’s obligations under this Agreement would be inadequate. The Executive therefore\nagrees and consents that if the Executive commits any breach of a covenant under this Agreement or threatens to commit any such breach, the\nCompany shall have the right (in addition to, and not in lieu of, any other right or remedy that may be available to it) to temporary and permanent\ninjunctive relief from a court of competent jurisdiction, without posting any bond or other security and without the necessity of proof of actual\ndamage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: At the most recent address on file for the Executive at the Company.\nIf to the Company: Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n(d) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\nExecution Date: November 7, 2006\n/s/ Mark W. Parrish\nMARK PARRISH\n/s/ R. Kerry Clark\nCARDINAL HEALTH, INC.\nExecution Date: November 8, 2006\nBy: Kerry Clark\nIts: President and Chief Executive Officer	EX-10.01 2 dex1001.htm LETTER AGREEMENT, AND CONFIDENTIALITY AND BUSINESS PROTECTION\nAGREEMENT\nExhibit 10.01\n[Cardinal Health Letterhead]\nNovember 8, 2006\nMark Parrish\nCardinal Health\n7000 Cardinal Place\nDublin, OH 43017\nDear Mark:\nIt is with great pleasure that I confirm in writing your promotion and the terms of your employment in your new position with Cardinal Health, Inc.\n(the "Company" or "Cardinal Health"). This letter will replace your existing employment agreement dated September 2, 2005, which you agree will\nno longer apply:\n1.\nYour new position will be CEO Healthcare Supply Chain Services. In this position, you will be reporting directly to me. During your\nemployment, you will also serve on the Executive Leadership Team of Cardinal Health. The effective date of your appointment to this\nposition is November 8, 2006.\n2.\nYour annual base salary will be $700,000.00, and your cash compensation profile will be reviewed at regular annual intervals by the\nHuman Resources and Compensation Committee of the Board of Directors (Compensation Committee), along with all other officers of\nCardinal Health.\n3.\nYou will continue to participate in our Management Incentive Plan (MIP). Your target annual incentive will be 100% of your base salary.\nYour base salary and incentive for the remainder of fiscal year 2007 (ending June 30, 2007) will be ratably adjusted to reflect the\ncompensation of your new position\n4.\nYou will also continue to participate in the Long-Term Incentive Cash Program for Fiscal Years 2006 - FY2008 (LTICP). Your target\nopportunity in the LTICP is your cumulative MIP payouts during the performance period.\n5.\nUpon appointment to your new position, you will receive an award of 35,000 Cardinal Health stock options along with an award of\n5,000 Cardinal Health restricted share units (RSUs). These and the equity grants made in August 2006 will represent your fiscal year\n2007 awards. Your additional award of 35,000 stock options will vest in annual installments of 25% on each of the first four\nanniversaries of the grant date. The additional award of 5,000 restricted share units will vest in annual installments of 33.33% on each of\nthe first three anniversaries of the grant date. The grant date of these awards will be November 15, 2006. You will be eligible for the next\nregular annual award of stock or stock options in fiscal year 2008. Standard terms and conditions will apply to these equity awards. The\nRSUs awarded pursuant to this Paragraph 5 will also be subject to deferred payment if you so elect on the enclosed election form.\nMark Parrish\nNovember 8, 2006\nPage 2\n6.\nUpon appointment to your new position, you will also be awarded a special equity award of 35,000 Cardinal Health restricted share\nunits. This special award of RSUs will vest in full on the third anniversary of the grant date. If you are terminated without cause or if you\nterminate with "good reason" (as defined in paragraph 8 below), RSUs granted under this special equity award will vest in full on the\ndate of such termination. The grant date of this award will also be November 15, 2006. Other than the special vesting provision\ndescribed above, standard terms and conditions will apply to the special equity award. 30,000 of the RSUs under this special equity\naward will also be subject to deferred payment until 6 months after your separation from employment with the Company.\n7.\nYou will continue to be eligible to participate in and receive benefits under other Cardinal Health employee benefit plans and programs\n(e.g., plans and programs that provide medical, life insurance and other welfare and retirement benefits as well as the Company's\nsavings, employee stock purchase and deferred compensation plans) to the same extent as, and on the same terms and conditions as,\nother similarly situated executives of the Company.\n8.\nIf your employment is terminated by the Company without cause, or if you voluntarily terminate your employment for "good reason,"\n(either event being a "Payment Termination"), the Company will provide you with severance equal to the sum of twelve months of your\nbase salary as in effect on the day immediately prior to the date of termination plus your target annual bonus for the fiscal year of the\nCompany in which your termination occurs, such amount to be divided into twelve (12) equal installments. Your severance will be paid\nin equal monthly installments over the 12 month period following the Payment Termination event. In addition if you are not yet age 55\nat the time of a Payment Termination, you will be "bridged" to retirement by deeming the termination to occur at or after your attainment\nof age 55, regardless of your actual age at that time, with such a termination qualifying as a "retirement" under the terms of your\noutstanding equity awards as well as other applicable plans, subject to the terms of such awards and plans, including the plans under\nwhich the equity awards were made. In addition to the benefits of termination by reason of retirement under the terms of your\noutstanding equity awards and other applicable plans, the effect of a "retirement" under any equity awards that do not already provide for\nratable vesting will be to result in the ratable vesting of any unvested stock options or RSUs based on the portion of the remaining\nvesting period elapsed at the date of the Payment Termination. You will be considered to have "good reason" to voluntarily terminate\nemployment only if there is a material diminution of your duties. However, a change in your reporting relationship will not alone\nconstitute such a diminution. If the severance payments are subject to Section 409A of the Internal Revenue Code, Cardinal Health may\ndelay payment of the first seven (7) months of severance payments until after six (6) months and one day from the date of your\ntermination of employment. If payment is delayed, seven (7) installments shall be payable, with interest as described below, as soon\nas\nadministratively practicable after the date which is six (6) months after the termination date, and one (1) installment shall be payable\neach month thereafter for a total of five (5) additional months, with interest credited to the first seven (7) installments as determined\nbased on the "Prime Rate" (as published in the Wall Street Journal) to the date of payment as though one such installment were allocated\nto each month between the termination date and the date of payment.\nMark Parrish\nNovember 8, 2006\nPage 3\n9.\nIf any payments, distributions, accelerated vesting or other benefits ("Payments") are provided in connection with a change in control\nof\nthe Company such that they would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code,\nthe Payments will be reduced to the extent necessary so that no portion of the Payments will be subject to the excise tax imposed by\nSection 4999 of the Internal Revenue Code. This reduction will only occur, however, if, as a result, the net after-tax benefit to you\nexceeds the net after-tax benefit if no reduction is made. For this purpose, the net after-tax benefit shall be calculated by the Company's\nindependent certified public accountants based on then applicable federal, state, local and foreign income and employment taxes\ncomputed at the maximum marginal rate, and the excise tax under Section 4999 of the Internal Revenue Code. If it is determined that the\nPayments will be reduced, you will be permitted to decide which Payments are to be reduced.\n10.\nEmployment with Cardinal Health is not for any definite period of time and is terminable, with notice, at the will of either you or the\nCompany at any time for any reason. There shall be no contract, express or implied, of employment. However, you agree to be bound by\nthe terms of the attached covenants related to confidentiality and protection of the Company's business interests. This agreement must be\nsigned and delivered to the Company on or before the effective date of your appointment to your new position. In addition, if any of the\nprovisions of this letter agreement are determined to result, directly or indirectly, in a violation of Internal Revenue Code Section 409A,\nthey will be amended to conform to the requirements of such Code Section.\nMark, congratulations on your new position. We all look forward to working with you in your new role.\nSincerely,\n/s/ R. Kerry Clark\nR. Kerry Clark\nEnclosures\nCC: Human Resources\nI\naccept the above terms and conditions of my continued employment and acknowledge that my September 2, 2005 employment agreement\nis\nno longer in effect:\n/s/ Mark W. Parrish\n11/9/06\nMark Parrish\nDate\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement ("Agreement") is hereby entered into by and between Mark Parrish ("Executive")\nand\nCardinal Health, Inc., an Ohio Corporation (the "Company") effective as of November 8, 2006.\nIt is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement between the parties effective as of November 8, 2006, and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary\nto\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive's ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9(a) below are accurate and necessary because (i) this Agreement is entered into\nin the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the Company,\nwhich has operations nationwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law provides\ncertainty\nto the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not violate any\nfundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the "Cardinal Group"), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive's employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive's\nviolation of this Agreement) ("Confidential Information"). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential Information at any time during or after the Executive's employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the Executive's employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and\nshall be turned over to the applicable Cardinal Group company upon termination of the Executive's employment.\n3.\nNon-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a "Solicitation"): (i) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent,\nconsultant or independent contractor) any person who was or is at any time during the previous twelve months an employee, representative, officer\nor director of the Cardinal Group; or (ii) take any action to encourage or induce any employee, representative, officer or director of the Cardinal\nGroup to cease their relationship with the Cardinal Group for any reason. A "Solicitation" does not include any recruitment of employees within\nor\nfor the Cardinal Group. The "Restricted Period" means the period of Executive's employment with the Cardinal Group (without regard to any period\nduring which Executive serves as a consulting employee) and the additional period ending eighteen (18) months after the Executive's date of\ntermination of employment or date of retirement, as applicable.\n4. No Competition Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of\nthe\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive's employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group\n5. No Competition Employment by Competitor. During the Restricted Period, the Executive shall not invest in (other than in a publicly\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a "Competitor").\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the Executive's employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the\ncircumstances of the termination of the Executive's employment, or about the Cardinal Group or its trustees, directors, officers, security holders,\npartners, agents or former or current employees and directors, except as may be required by a court or governmental body.\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive's employment with the Company,\nincluding but not limited to any litigation that may be pending or may arise after such termination of employment. Further, the Executive agrees to\nnotify the Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company\nshall not unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive,\ntaking into account the Executive's business and personal affairs, and shall\ncompensate the Executive for any lost wages or expenses associated with such cooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive's initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive's employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property. The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive's entire right, title and interest in and to any such discoveries and improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement. The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult\nto\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the covenants of this Agreement; and (C) remedies at\nlaw (such as monetary damages) for any breach of the Executive's obligations under this Agreement would be inadequate. The Executive therefore\nagrees and consents that if the Executive commits any breach of a covenant under this Agreement or threatens to commit any such breach, the\nCompany shall have the right (in addition to, and not in lieu of, any other right or remedy that may be available to it) to temporary and permanent\ninjunctive relief from a court of competent jurisdiction, without posting any bond or other security and without the necessity of proof of actual\ndamage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shal have no force or effect. This Agreement constitutes\nthe\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive:\nAt the most recent address on file for the Executive at the Company.\nIf to the Company:\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n(d) The Executive's or the Company's failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\nExecution Date: November 7, 2006\n/s/ Mark W. Parrish\nMARK PARRISH\n/S/R. Kerry Clark\nCARDINAL HEALTH, INC.\nExecution Date: November 8, 2006\nBy: Kerry Clark\nIts: President and Chief Executive Officer	EX-10.01 2 dex1001.htm LETTER AGREEMENT, AND CONFIDENTIALITY AND BUSINESS PROTECTION\nAGREEMENT\nExhibit 10.01\n[Cardinal Health Letterhead]\nNovember 8, 2006\nMark Parrish\nCardinal Health\n7000 Cardinal Place\nDublin, OH 43017\nDear Mark:\nIt is with great pleasure that I confirm in writing your promotion and the terms of your employment in your new position with Cardinal Health, Inc.\n(the “Company” or “Cardinal Health”). This letter will replace your existing employment agreement dated September 2, 2005, which you agree will\nno longer apply:\n1. Your new position will be CEO Healthcare Supply Chain Services. In this position, you will be reporting directly to me. During your\nemployment, you will also serve on the Executive Leadership Team of Cardinal Health. The effective date of your appointment to this\nposition is November 8, 2006.\n2. Your annual base salary will be $700,000.00, and your cash compensation profile will be reviewed at regular annual intervals by the\nHuman Resources and Compensation Committee of the Board of Directors (Compensation Committee), along with all other officers of\nCardinal Health.\n3. You will continue to participate in our Management Incentive Plan (MIP). Your target annual incentive will be 100% of your base salary.\nYour base salary and incentive for the remainder of fiscal year 2007 (ending June 30, 2007) will be ratably adjusted to reflect the\ncompensation of your new position.\n4. You will also continue to participate in the Long-Term Incentive Cash Program for Fiscal Years 2006 – FY2008 (LTICP). Your target\nopportunity in the LTICP is your cumulative MIP payouts during the performance period.\n5. Upon appointment to your new position, you will receive an award of 35,000 Cardinal Health stock options along with an award of\n5,000 Cardinal Health restricted share units (RSUs). These and the equity grants made in August 2006 will represent your fiscal year\n2007 awards. Your additional award of 35,000 stock options will vest in annual installments of 25% on each of the first four\nanniversaries of the grant date. The additional award of 5,000 restricted share units will vest in annual installments of 33.33% on each of\nthe first three anniversaries of the grant date. The grant date of these awards will be November 15, 2006. You will be eligible for the next\nregular annual award of stock or stock options in fiscal year 2008. Standard terms and conditions will apply to these equity awards. The\nRSUs awarded pursuant to this Paragraph 5 will also be subject to deferred payment if you so elect on the enclosed election form.\nMark Parrish\nNovember 8, 2006\nPage 2\n6. Upon appointment to your new position, you will also be awarded a special equity award of 35,000 Cardinal Health restricted share\nunits. This special award of RSUs will vest in full on the third anniversary of the grant date. If you are terminated without cause or if you\nterminate with “good reason” (as defined in paragraph 8 below), RSUs granted under this special equity award will vest in full on the\ndate of such termination. The grant date of this award will also be November 15, 2006. Other than the special vesting provision\ndescribed above, standard terms and conditions will apply to the special equity award. 30,000 of the RSUs under this special equity\naward will also be subject to deferred payment until 6 months after your separation from employment with the Company.\n7. You will continue to be eligible to participate in and receive benefits under other Cardinal Health employee benefit plans and programs\n(e.g., plans and programs that provide medical, life insurance and other welfare and retirement benefits as well as the Company’s\nsavings, employee stock purchase and deferred compensation plans) to the same extent as, and on the same terms and conditions as,\nother similarly situated executives of the Company.\n8. If your employment is terminated by the Company without cause, or if you voluntarily terminate your employment for “good reason,”\n(either event being a “Payment Termination”), the Company will provide you with severance equal to the sum of twelve months of your\nbase salary as in effect on the day immediately prior to the date of termination plus your target annual bonus for the fiscal year of the\nCompany in which your termination occurs, such amount to be divided into twelve (12) equal installments. Your severance will be paid\nin equal monthly installments over the 12 month period following the Payment Termination event. In addition, if you are not yet age 55\nat the time of a Payment Termination, you will be “bridged” to retirement by deeming the termination to occur at or after your attainment\nof age 55, regardless of your actual age at that time, with such a termination qualifying as a “retirement” under the terms of your\noutstanding equity awards as well as other applicable plans, subject to the terms of such awards and plans, including the plans under\nwhich the equity awards were made. In addition to the benefits of termination by reason of retirement under the terms of your\noutstanding equity awards and other applicable plans, the effect of a “retirement” under any equity awards that do not already provide for\nratable vesting will be to result in the ratable vesting of any unvested stock options or RSUs based on the portion of the remaining\nvesting period elapsed at the date of the Payment Termination. You will be considered to have “good reason” to voluntarily terminate\nemployment only if there is a material diminution of your duties. However, a change in your reporting relationship will not alone\nconstitute such a diminution. If the severance payments are subject to Section 409A of the Internal Revenue Code, Cardinal Health may\ndelay payment of the first seven (7) months of severance payments until after six (6) months and one day from the date of your\ntermination of employment. If payment is delayed, seven (7) installments shall be payable, with interest as described below, as soon as\nadministratively practicable after the date which is six (6) months after the termination date, and one (1) installment shall be payable\neach month thereafter for a total of five (5) additional months, with interest credited to the first seven (7) installments as determined\nbased on the “Prime Rate” (as published in the Wall Street Journal) to the date of payment as though one such installment were allocated\nto each month between the termination date and the date of payment.\nMark Parrish\nNovember 8, 2006\nPage 3\n9. If any payments, distributions, accelerated vesting or other benefits (“Payments”) are provided in connection with a change in control of\nthe Company such that they would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code,\nthe Payments will be reduced to the extent necessary so that no portion of the Payments will be subject to the excise tax imposed by\nSection 4999 of the Internal Revenue Code. This reduction will only occur, however, if, as a result, the net after-tax benefit to you\nexceeds the net after-tax benefit if no reduction is made. For this purpose, the net after-tax benefit shall be calculated by the Company’s\nindependent certified public accountants based on then applicable federal, state, local and foreign income and employment taxes\ncomputed at the maximum marginal rate, and the excise tax under Section 4999 of the Internal Revenue Code. If it is determined that the\nPayments will be reduced, you will be permitted to decide which Payments are to be reduced.\n10. Employment with Cardinal Health is not for any definite period of time and is terminable, with notice, at the will of either you or the\nCompany at any time for any reason. There shall be no contract, express or implied, of employment. However, you agree to be bound by\nthe terms of the attached covenants related to confidentiality and protection of the Company’s business interests. This agreement must be\nsigned and delivered to the Company on or before the effective date of your appointment to your new position. In addition, if any of the\nprovisions of this letter agreement are determined to result, directly or indirectly, in a violation of Internal Revenue Code Section 409A,\nthey will be amended to conform to the requirements of such Code Section.\nMark, congratulations on your new position. We all look forward to working with you in your new role.\nSincerely,\n/s/ R. Kerry Clark\nR. Kerry Clark\nEnclosures\ncc: Human Resources\nI accept the above terms and conditions of my continued employment and acknowledge that my September 2, 2005 employment agreement is\nno longer in effect:\n/s/ Mark W. Parrish\n11/9/06\nMark Parrish\nDate\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between Mark Parrish (“Executive”) and\nCardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of November 8, 2006.\nIt is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement between the parties effective as of November 8, 2006, and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive’s ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9(a) below are accurate and necessary because (i) this Agreement is entered into\nin the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the Company,\nwhich has operations nationwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law provides certainty\nto the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not violate any\nfundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the “Cardinal Group”), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive’s employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive’s\nviolation of this Agreement) (“Confidential Information”). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential Information at any time during or after the Executive’s employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the Executive’s employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and\nshall be turned over to the applicable Cardinal Group company upon termination of the Executive’s employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a “Solicitation”): (i) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent,\nconsultant or independent contractor) any person who was or is at any time during the previous twelve months an employee, representative, officer\nor director of the Cardinal Group; or (ii) take any action to encourage or induce any employee, representative, officer or director of the Cardinal\nGroup to cease their relationship with the Cardinal Group for any reason. A “Solicitation” does not include any recruitment of employees within or\nfor the Cardinal Group. The “Restricted Period” means the period of Executive’s employment with the Cardinal Group (without regard to any period\nduring which Executive serves as a consulting employee) and the additional period ending eighteen (18) months after the Executive’s date of\ntermination of employment or date of retirement, as applicable.\n4. No Competition — Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive’s employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\n5. No Competition — Employment by Competitor. During the Restricted Period, the Executive shall not invest in (other than in a publicly\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a “Competitor”).\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the Executive’s employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the\ncircumstances of the termination of the Executive’s employment, or about the Cardinal Group or its trustees, directors, officers, security holders,\npartners, agents or former or current employees and directors, except as may be required by a court or governmental body.\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive’s employment with the Company,\nincluding but not limited to any litigation that may be pending or may arise after such termination of employment. Further, the Executive agrees to\nnotify the Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company\nshall not unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive,\ntaking into account the Executive’s business and personal affairs, and shall\ncompensate the Executive for any lost wages or expenses associated with such cooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive’s initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive’s employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property. The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive’s entire right, title and interest in and to any such discoveries and improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement. The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the covenants of this Agreement; and (C) remedies at\nlaw (such as monetary damages) for any breach of the Executive’s obligations under this Agreement would be inadequate. The Executive therefore\nagrees and consents that if the Executive commits any breach of a covenant under this Agreement or threatens to commit any such breach, the\nCompany shall have the right (in addition to, and not in lieu of, any other right or remedy that may be available to it) to temporary and permanent\ninjunctive relief from a court of competent jurisdiction, without posting any bond or other security and without the necessity of proof of actual\ndamage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive:\nAt the most recent address on file for the Executive at the Company.\nIf to the Company: Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n(d) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\nExecution Date: November 7, 2006\n/s/ Mark W. Parrish\nMARK PARRISH\n/s/ R. Kerry Clark\nCARDINAL HEALTH, INC.\nExecution Date: November 8, 2006\nBy: Kerry Clark\nIts: President and Chief Executive Officer
cf34c9403e0092eca75ed9fc61284268.pdf	effective_date jurisdiction party term	EX1A-6 MAT CTRCT 10 filename10.htm\nExhibit 1A-6D\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on January 15, 2018, by and among DeAnn O'Donovan ("Executive"), AHP Servicing, LLC\n("Servicing"), and AHP Capital Management, LLC ("Capital Management"), Servicing and Capital Management are sometimes referred to as\n"the Companies") in this Agreement.\nBackground\nI.\nExecutive renders services to the Companies pursuant to an Executive Employment Agreement (the "Employment Agreement").\nII.\nThe parties wish to set forth certain restrictions concerning confidential information, inventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1. Confidential Information.\n1.1 Defined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public or in\nthe mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Companies or their businesses.\nConfidential Information includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions,\nnegotiations, know-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor\ninformation, financial information, accounting records, legal information, pricing information, credit information, personnel information,\nsecurity procedures, market studies, sales information, inventions, and customer information. Executive understands that the above list is not\nexhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or\nproprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which\nthe information is known or used. Executive further understands that Confidential Information includes information developed by her in the\ncourse of her employment that meets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential\nInformation shall not include information that is generally available to and known by the public or in the mortgage industry, provided that\nthe disclosure of such information to the public or the mortgage industry was not the result of direct or indirect action of Executive (or one\nor more person(s) acting on Executive's behalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2\nDisclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly or\nindirectly disclose Confidential Information, or allow it to be disclosed, except as required or deemed appropriate by Executive in her\nreasonable discretion in the performance of Executive's duties for the Companies; and (iii) not access or use any Confidential Information,\nand not copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such\ndocuments, records, files, media, or other resources from the premises or control of the Companies, except as required or deemed\nappropriate by Executive in her reasonable discretion in the performance of Executive's duties for the Companies. The preceding sentence\nshall not prohibit Executive from disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid\norder of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation, or order and, to the extent permitted by applicable law, Executive gives the Companies prompt\nnotice of such requirement.\n1.3 Ownership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written, photographic,\nor other tangible material containing Confidential Information, whether created by Executive or others, which shall come into her custody or\npossession, shall be and are the exclusive property of the Companies to be used by Executive only in the performance of her duties for the\nCompanies. All such materials or copies thereof and all tangible property of the Companies in the custody or possession of Executive shall\nbe delivered to the Companies, upon the earlier of (i) a request by the Companies or (ii) termination of Executive's employment by the\nCompanies. After such delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that\nnotwithstanding the foregoing Executive may retain records related to the terms and conditions of her employment (including but not limited\nto her Employment Agreement and this Agreement) and her ownership of equity interests in the Company.\n1\n1.4 Information and Property of Others. The obligations of Executive under this section 1 shall apply to information and materials of\ncustomers and suppliers of the Companies and other third parties who may have disclosed or entrusted the same to the Companies or to\nExecutive.\n2.\nInventions.\n2.1\nDisclosure. Executive will make full and prompt disclosure to the Companies of all inventions, improvements, software, and other\nintellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under Executive's\ndirection or jointly with others during the period of her employment which relate to the then current or planned businesses of the Companies,\nwhether or not during normal working hours or on the premises of the Companies, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of her employment using tools,\nequipment or other assets of the Companies ("Developments").\n2.2\nAssignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Companies, ownership of all United States and international copyrights, patents, and other intellectual property\nrights in each Development. Executive shall cooperate with the Companies in obtaining, maintaining, and enforcing all intellectual property\nrights relating to Developments, as the Companies deems necessary or appropriate. This assignment is undertaken in part as a contingency\nagainst the possibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the\nCompanies. Executive also hereby waives all claims to moral rights in any Developments.\n3.\nNon-Solicitation.\n3.1 Customers. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months thereafter,\nExecutive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Companies have provided mortgage\nservicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2 Employees and Independent Contractors. For as long as she is performing services on behalf of the Companies and for a period of\ntwelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Companies or their\naffiliates, or initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate\ntheir relationship with the Companies or their affiliates; provided, that (i) the foregoing shall not apply with respect to employees and\nindependent contractors who respond to general advertisements regarding hiring of employees or engagement of independent contractors or\nrespond to inquiries by independent recruiting firms not resulting from direction to such firms to include employees or independent\ncontractors of the Companies in such solicitation activities, and (ii) in the event Executive's employment with the Companies is terminated\nby Executive for Good Reason or by the Company without Cause (as such terms are defined in the Employment Agreement), the foregoing\nrestrictions shall not apply with respect to the individuals listed on Schedule 3.2 .\n2\n4.\nNon-Competition. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months\nthereafter, Executive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship,\ncorporation, partnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans;\nprovided, that the foregoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any\nproprietorship, corporation, partnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming"\ndistressed residential mortgage loans among multiple businesses so long as Executive is not personally involved in the operations of the\nbusiness with respect to purchasing or investing in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses\nconducted by the Companies, Executive acknowledges that the foregoing restrictions shall have no geographic limitation.\n5.\nAcknowledgment. Executive represents and warrants that (i) her knowledge, skills and abilities are sufficient to permit her to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Companies, and (iii) she has received adequate consideration for her agreement to the restrictions set\nforth herein, including but not limited to an equity interest in the Companies or their affiliates.\n6.\nRemedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot be\nreasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7.\nNotification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8.\nSurvival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Companies.\n9.\nModification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Companies\nand Executive.\n10.\nNo Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Companies or its affiliates for compensation. Except as otherwise provided in other written agreements, including the Employment\nAgreement, the Companies may terminate their relationship with Executive at will.\n11.\nMiscellaneous.\n11.1\nAmendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay\nin the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a\nwaiver of such right or remedy generally.\n11.2\nNotices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with\ndelivery fees paid, to the principal business address of the Companies or the address of Executive on file with the Companies, as applicable;\nor (ii) on the date transmitted by electronic mail to jNewbery@ahpfund.com in the case of the Companies and to deann1890@gmail.com in\nthe case of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other\nwritten confirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n3\n11.3\nGoverning Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by\nregular mail to the address set forth above and/or by any means authorized by Illinois law.\n11.4\nLanguage Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the\ndrafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall\nnot apply to the interpretation of this Agreement.\n11.5\nNo Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute an\noffer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6\nSignatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g., via DocuSign.\n11.7\nBinding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8\nTitles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or\nplural as the identity of the person or persons may require.\n11.10\nDays. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be\nconsidered timely if paid, given, or performed on the next succeeding business day.\n11.11\nEntire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\n4\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAFIP SERVICING, LLC\nBy /s/ Jorge Newbery\nJorge Newbery, CEO\nAFIP CAPITAL MANAGEMENT, LLC\nBy /s/ Jorge Newbery\nJorge Newbery, Manager\nBy /s/ DeAnn O’Donovan\nDeAnn O’Donovan\n5\nSCHEDULE 3.2\nExcluded Persons\nMary Anne Batara\nTom Sang\nChristine Wujek\nEleni Marudas\nIrene Calzadilla\nStephanie Boban\n6	EX1A-6 MAT CTRCT 10 filename10.htm Exhibit 1A-6D AMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on January 15, 2018, by and among DeAnn O'Donovan ("Executive"), AHP Servicing, LLC\n("Servicing"), and AHP Capital Management, LL.C ("Capital Management"), Servicing and Capital Management are sometimes referred to as "the Companies") in this Agreement. Background\nL Executive renders services to the Companies pursuant to an Executive Employment Agreement (the "Employment Agreement").\nII. The parties wish to set forth certain restrictions concerning confidential information, inventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1. Confidential Information.\n1.1 Defined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public or in\nthe mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Companies or their businesses.\nConfidential Information includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions,\nnegotiations, know-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor\ninformation, financial information, accounting records, legal information, pricing information, credit information, personnel information,\nsecurity procedures, market studies, sales information, inventions, and customer information. Executive understands that the above list is not\nexhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or\nproprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which\nthe information is known or used. Executive further understands that Confidential Information includes information developed by her in the\ncourse of her employment that meets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential\nInformation shall not include information that is generally available to and known by the public or in the mortgage industry, provided that\nthe disclosure of such information to the public or the mortgage industry was not the result of direct or indirect action of Executive (or one\nor more person(s) acting on Executive's behalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2 Disclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly or\nindirectly disclose Confidential Information, or allow it to be disclosed, except as required or deemed appropriate by Executive in her\nreasonable discretion in the performance of Executive's duties for the Companies; and (iii) not access or use any Confidential Information,\nand not copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such\ndocuments, records, files, media, or other resources from the premises or control of the Companies, except as required or deemed\nappropriate by Executive in her reasonable discretion in the performance of Executive's duties for the Companies. The preceding sentence\nshall not prohibit Executive from disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid\norder of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation, or order and, to the extent permitted by applicable law, Executive gives the Companies prompt\nnotice of such requirement.\n1.3 Ownership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written, photographic,\nor other tangible material containing Confidential Information, whether created by Executive or others, which shall come into her custody or\npossession, shall be and are the exclusive property of the Companies to be used by Executive only in the performance of her duties for the\nCompanies. All such materials or copies thereof and all tangible property of the Companies in the custody or possession of Executive shall\nbe delivered to the Companies, upon the earlier of (i) a request by the Companies or (ii) termination of Executive's employment by the\nCompanies. After such delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that\nnotwithstanding the foregoing Executive may retain records related to the terms and conditions of her employment (including but not limited\nto her Employment Agreement and this Agreement) and her ownership of equity interests in the Company.\n1.4 Information and Property of Others. The obligations of Executive under this section 1 shall apply to information and materials of\ncustomers and suppliers of the Companies and other third parties who may have disclosed or entrusted the same to the Companies or to\nExecutive.\nInventions.\n2.1 Disclosure. Executive will make full and prompt disclosure to the Companies of all inventions, improvements, software, and other\nintellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under Executive's\ndirection or jointly with others during the period of her employment which relate to the then current or planned businesses of the Companies,\nwhether or not during normal working hours or on the premises of the Companies, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of her employment using tools,\nequipment or other assets of the Companies ("Developments").\n2.2 Assignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Companies, ownership of all United States and international copyrights, patents, and other intellectual property\nrights in each Development. Executive shall cooperate with the Companies in obtaining, maintaining, and enforcing all intellectual property\nrights relating to Developments, as the Companies deems necessary or appropriate. This assignment is undertaken in part as a contingency\nagainst the possibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the\nCompanies. Executive also hereby waives all claims to moral rights in any Developments.\nNon-Solicitation.\n3.1 Customers. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months thereafter,\nExecutive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Companies have provided mortgage\nservicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2  Employees and Independent Contractors. For as long as she is performing services on behalf of the Companies and for a period of\ntwelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Companies or their\naffiliates, or initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate\ntheir relationship with the Companies or their affiliates; provided, that (i) the foregoing shall not apply with respect to employees and\nindependent contractors who respond to general advertisements regarding hiring of employees or engagement of independent contractors or\nrespond to inquiries by independent recruiting firms not resulting from direction to such firms to include employees or independent\ncontractors of the Companies in such solicitation activities, and (ii) in the event Executive's employment with the Companies is terminated\nby Executive for Good Reason or by the Company without Cause (as such terms are defined in the Employment Agreement), the foregoing\nrestrictions shall not apply with respect to the individuals listed on Schedule 3.2.\n4. Non-Competition. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months\nthereafter, Executive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship,\ncorporation, partnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans;\nprovided, that the foregoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any\nproprietorship, corporation, partnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming"\ndistressed residential mortgage loans among multiple businesses so long as Executive is not personally involved in the operations of the\nbusiness with respect to purchasing or investing in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses\nconducted by the Companies, Executive acknowledges that the foregoing restrictions shall have no geographic limitation.\n5. Acknowledgment. Executive represents and warrants that (i) her knowledge, skills and abilities are sufficient to permit her to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Companies, and (iii) she has received adequate consideration for her agreement to the restrictions set\nforth herein, including but not limited to an equity interest in the Companies or their affiliates.\n6. Remedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot be\nreasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7. Notification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8. Survival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Companies.\n9. Modification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Companies\nand Executive.\n10. No Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Companies or its affiliates for compensation. Except as otherwise provided in other written agreements, including the Employment\nAgreement, the Companies may terminate their relationship with Executive at will.\n11. Miscellaneous.\n111 Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay\nin the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a\nwaiver of such right or remedy generally.\n11.2 Notices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with\ndelivery fees paid, to the principal business address of the Companies or the address of Executive on file with the Companies, as applicable;\nor (ii) on the date transmitted by electronic mail to jNewbery@ahpfund.com in the case of the Companies and to deann1890@gmail.com in\nthe case of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other\nwritten confirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n11.3 Governing Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by\nregular mail to the address set forth above and/or by any means authorized by Illinois law.\n11.4 Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the\ndrafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall\nnot apply to the interpretation of this Agreement.\n11.5 No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute an\noffer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6 Signatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g., via DocuSign.\n11.7 Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8 Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or\nplural as the identity of the person or persons may require.\n11.10 Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be\nconsidered timely if paid, given, or performed on the next succeeding business day.\n11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAFIP SERVICING, LLC\nBy  /s/ Jorge Newbery\nJorge Newbery, CEO\nAFIP CAPITAL MANAGEMENT, LLC\nBy  /s/ Jorge Newbery\nJorge Newbery, Manager\nBy  /s/ DeAnn O’Donovan\nDeAnn O’Donovan\nMary Anne Batara\nTom Sang\nChristine Wujek\nEleni Marudas\nIrene Calzadilla\nStephanie Boban\nSCHEDULE 3.2\nExcluded Persons	EX1A-6 MAT CTRCT 10 filenamelo.hti\nExhibit 1A-6D\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on January 15, 2018, by and among DeAnn O'Donovan ("Executive"), AHP Servicing,\nLLC\n("Servicing"), and AHP Capital Management, LLC ("Capital Management"), Servicing and Capital Management are sometimes referred to\nas\n"the Companies") in this Agreement.\nBackground\nI.\nExecutive renders services to the Companies pursuant to an Executive Employment Agreement (the "Employment Agreement").\nII.\nThe parties wish to set forth certain restrictions concerning confidential information, inventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1.\nConfidential Information.\n1.1\nDefined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public or in\nthe mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Companies or their businesses.\nConfidential Information includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions,\nnegotiations, know-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor\ninformation, financial information, accounting records, legal information, pricing information, credit information, personnel information,\nsecurity procedures, market studies, sales information, inventions, and customer information. Executive understands that the above list is not\nexhaustive, and that Confidentia Information also includes other information that is marked or otherwise identified as confidential or\nproprietary, or that would otherwise appear to a reasonable person to be confidentia or proprietary in the context and circumstances in which\nthe information is known or used. Executive further understands that Confidential Information includes information developed by her in the\ncourse of her employment that meets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential\nInformation shall not include information that is generally available to and known by the public or in the mortgage industry, provided that\nthe disclosure of such information to the public or the mortgage industry was not the result of direct or indirect action of Executive (or one\nor more person(s) acting on Executive's behalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2\nDisclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly or\nindirectly disclose Confidential Information, or allow it to be disclosed, except as required or deemed appropriate by Executive in her\nreasonable\ndiscretion\nin\nthe\nperformance\nof\nExecutive's\nduties\nfor\nthe\nCompanies;\nand\n(iii)\nnot\naccess\nor\nuse\nany\nConfidential\nInformation,\nand not copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such\ndocuments, records, files, media, or other resources from the premises or control of the Companies, except as required or deemed\nappropriate by Executive in her reasonable discretion in the performance of Executive's duties for the Companies. The preceding sentence\nshall not prohibit Executive from disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid\norder of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation, or order and, to the extent permitted by applicable law, Executive gives the Companies prompt\nnotice of such requirement.\n1.3\nOwnership\nof\nProperty.\nAll\nfiles,\nletters,\nmemoranda,\nreports,\nrecords,\ndata,\nsketches,\ndrawings,\nand\nall\nother\nwritten,\nphotographic,\nor other tangible material containing Confidential Information, whether created by Executive or others, which shall come into her custody or\npossession, shall be and are the exclusive property of the Companies to be used by Executive only in the performance of her duties for the\nCompanies. All such materials or copies thereof and all tangible property of the Companies in the custody or possession of Executive shall\nbe delivered to the Companies, upon the earlier of (i) a request by the Companies or (ii) termination of Executive's employment by the\nCompanies. After such delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that\nnotwithstanding the foregoing Executive may retain records related to the terms and conditions of her employment (including but not limited\nto her Employment Agreement and this Agreement) and her ownership of equity interests in the Company.\n1\n1.4\nInformation and Property of Others. The obligations of Executive under this section 1 shall apply to information and materials of\ncustomers and suppliers of the Companies and other third parties who may have disclosed or entrusted the same to the Companies or to\nExecutive.\n2.\nInventions.\n2.1\nDisclosure. Executive will make full and prompt disclosure to the Companies of all inventions, improvements, software, and other\nintellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under Executive's\ndirection or jointly with others during the period of her employment which relate to the then current or planned businesses of the Companies,\nwhether or not during normal working hours or on the premises of the Companies, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of her employment using tools,\nequipment or other assets of the Companies ("Developments").\n2.2\nAssignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically\nassign,\nto\nthe\nCompanies,\nownership\nof\nall\nUnited\nStates\nand\ninternational\ncopyrights,\npatents,\nand\nother\nintellectual\nproperty\nrights in each Development. Executive shall cooperate with the Companies in obtaining, maintaining, and enforcing all intellectual property\nrights relating to Developments, as the Companies deems necessary or appropriate. This assignment is undertaken in part as a contingency\nagainst the possibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the\nCompanies. Executive also hereby waives all claims to moral rights in any Developments.\n3.\nNon-Solicitation.\n3.1\nCustomers. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months thereafter\nExecutive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Companies have provided mortgage\nservicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2\nEmployees and Independent Contractors. For as long as she is performing services on behalf of the Companies and for a period of\ntwelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Companies or their\naffiliates, or initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate\ntheir relationship with the Companies or their affiliates; provided, that (i) the foregoing shall not apply with respect to employees and\nindependent contractors who respond to general advertisements regarding hiring of employees or engagement of independent contractors or\nrespond\nto\ninquiries\nby\nindependent\nrecruiting\nfirms\nnot\nresulting\nfrom\ndirection\nto\nsuch\nfirms\nto\ninclude\nemployees\nor\nindependent\ncontractors of the Companies in such solicitation activities, and (ii) in the event Executive's employment with the Companies is terminated\nby Executive for Good Reason or by the Company without Cause (as such terms are defined in the Employment Agreement), the foregoing\nrestrictions shall not apply with respect to the individuals listed on Schedule 3.2.\n2\n4.\nNon-Competition. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months\nthereafter, Executive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship,\ncorporation, partnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans;\nprovided, that the foregoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any\nproprietorship, corporation, partnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming"\ndistressed\nresidential\nmortgage\nloans\namong\nmultiple\nbusinesses\nso\nlong\nas\nExecutive\nis\nnot\npersonally\ninvolved\nin\nthe\noperations\nof\nthe\nbusiness with respect to purchasing or investing in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses\nconducted by the Companies, Executive acknowledges that the foregoing restrictions shall have no geographic limitation.\n5.\nAcknowledgment. Executive represents and warrants that (i) her knowledge, skills and abilities are sufficient to permit her to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Companies, and (iii) she has received adequate consideration for her agreement to the restrictions set\nforth herein, including but not limited to an equity interest in the Companies or their affiliates.\n6. Remedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot be\nreasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7.\nNotification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8.\nSurvival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Companies.\n9.\nModification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Companies\nand Executive.\n10.\nNo Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Companies or its affiliates for compensation. Except as otherwise provided in other written agreements, including the Employment\nAgreement, the Companies may terminate their relationship with Executive at will.\n11.\nMiscellaneous.\n11.1\nAmendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay\nin the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute\na\nwaiver of such right or remedy generally.\n11.2\nNotices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel\nand\nshall\nbe\ndeemed\nto\nbe\ngiven\n(i)\none\nday\nafter\nthe\ndate\nsuch\nnotice\nis\ndeposited\nwith\na\ncommercial\novernight\ndelivery\nservice\nwith\ndelivery fees paid, to the principal business address of the Companies or the address of Executive on file with the Companies, as applicable;\nor (ii) on the date transmitted by electronic mail to jNewbery@ahpfund.com in the case of the Companies and to deann1890@gmail.com in\nthe case of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other\nwritten confirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n3\n11.3\nGoverning Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by\nregular mail to the address set forth above and/or by any means authorized by Illinois law.\n11.4\nLanguage Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the\ndrafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall\nnot apply to the interpretation of this Agreement.\n11.5 No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute an\noffer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6\nSignatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g., via DocuSign.\n11.7\nBinding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns\nof\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8\nTitles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9\nPronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or\nplural as the identity of the person or persons may require.\n11.10\nDays. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be\nconsidered timely if paid, given, or performed on the next succeeding business day.\n11.11\nEntire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\n4\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAFIP SERVICING, LLC\nBy\n/s/ Jorge Newbery\nJorge Newbery, CEO\nAFIP CAPITAL MANAGEMENT, LLC\nBy\n/s/ Jorge Newbery\nJorge Newbery, Manager\nBy\n/s/ DeAnn O'Donovan\nDeAnn O'Donovan\n5\nSCHEDULE 3.2\nExcluded Persons\nMary Anne Batara\nTom Sang\nChristine Wujek\nEleni Marudas\nIrene Calzadilla\nStephanie Boban\n6	EX1A-6 MAT CTRCT 10 filename10.htm\nExhibit 1A-6D\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on January 15, 2018, by and among DeAnn O'Donovan ("Executive"), AHP Servicing, LLC\n("Servicing"), and AHP Capital Management, LLC ("Capital Management"), Servicing and Capital Management are sometimes referred to as\n"the Companies") in this Agreement.\nBackground\nI.\nExecutive renders services to the Companies pursuant to an Executive Employment Agreement (the "Employment Agreement").\nII.\nThe parties wish to set forth certain restrictions concerning confidential information, inventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1. Confidential Information.\n1.1 Defined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public or in\nthe mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Companies or their businesses.\nConfidential Information includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions,\nnegotiations, know-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor\ninformation, financial information, accounting records, legal information, pricing information, credit information, personnel information,\nsecurity procedures, market studies, sales information, inventions, and customer information. Executive understands that the above list is not\nexhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or\nproprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which\nthe information is known or used. Executive further understands that Confidential Information includes information developed by her in the\ncourse of her employment that meets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential\nInformation shall not include information that is generally available to and known by the public or in the mortgage industry, provided that\nthe disclosure of such information to the public or the mortgage industry was not the result of direct or indirect action of Executive (or one\nor more person(s) acting on Executive's behalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2\nDisclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly or\nindirectly disclose Confidential Information, or allow it to be disclosed, except as required or deemed appropriate by Executive in her\nreasonable discretion in the performance of Executive's duties for the Companies; and (iii) not access or use any Confidential Information,\nand not copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such\ndocuments, records, files, media, or other resources from the premises or control of the Companies, except as required or deemed\nappropriate by Executive in her reasonable discretion in the performance of Executive's duties for the Companies. The preceding sentence\nshall not prohibit Executive from disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid\norder of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation, or order and, to the extent permitted by applicable law, Executive gives the Companies prompt\nnotice of such requirement.\n1.3 Ownership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written, photographic,\nor other tangible material containing Confidential Information, whether created by Executive or others, which shall come into her custody or\npossession, shall be and are the exclusive property of the Companies to be used by Executive only in the performance of her duties for the\nCompanies. All such materials or copies thereof and all tangible property of the Companies in the custody or possession of Executive shall\nbe delivered to the Companies, upon the earlier of (i) a request by the Companies or (ii) termination of Executive's employment by the\nCompanies. After such delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that\nnotwithstanding the foregoing Executive may retain records related to the terms and conditions of her employment (including but not limited\nto her Employment Agreement and this Agreement) and her ownership of equity interests in the Company.\n1\n1.4 Information and Property of Others. The obligations of Executive under this section 1 shall apply to information and materials of\ncustomers and suppliers of the Companies and other third parties who may have disclosed or entrusted the same to the Companies or to\nExecutive.\n2.\nInventions.\n2.1\nDisclosure. Executive will make full and prompt disclosure to the Companies of all inventions, improvements, software, and other\nintellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under Executive's\ndirection or jointly with others during the period of her employment which relate to the then current or planned businesses of the Companies,\nwhether or not during normal working hours or on the premises of the Companies, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of her employment using tools,\nequipment or other assets of the Companies ("Developments").\n2.2\nAssignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Companies, ownership of all United States and international copyrights, patents, and other intellectual property\nrights in each Development. Executive shall cooperate with the Companies in obtaining, maintaining, and enforcing all intellectual property\nrights relating to Developments, as the Companies deems necessary or appropriate. This assignment is undertaken in part as a contingency\nagainst the possibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the\nCompanies. Executive also hereby waives all claims to moral rights in any Developments.\n3.\nNon-Solicitation.\n3.1 Customers. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months thereafter,\nExecutive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Companies have provided mortgage\nservicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2 Employees and Independent Contractors. For as long as she is performing services on behalf of the Companies and for a period of\ntwelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Companies or their\naffiliates, or initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate\ntheir relationship with the Companies or their affiliates; provided, that (i) the foregoing shall not apply with respect to employees and\nindependent contractors who respond to general advertisements regarding hiring of employees or engagement of independent contractors or\nrespond to inquiries by independent recruiting firms not resulting from direction to such firms to include employees or independent\ncontractors of the Companies in such solicitation activities, and (ii) in the event Executive's employment with the Companies is terminated\nby Executive for Good Reason or by the Company without Cause (as such terms are defined in the Employment Agreement), the foregoing\nrestrictions shall not apply with respect to the individuals listed on Schedule 3.2 .\n2\n4.\nNon-Competition. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months\nthereafter, Executive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship,\ncorporation, partnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans;\nprovided, that the foregoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any\nproprietorship, corporation, partnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming"\ndistressed residential mortgage loans among multiple businesses so long as Executive is not personally involved in the operations of the\nbusiness with respect to purchasing or investing in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses\nconducted by the Companies, Executive acknowledges that the foregoing restrictions shall have no geographic limitation.\n5.\nAcknowledgment. Executive represents and warrants that (i) her knowledge, skills and abilities are sufficient to permit her to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Companies, and (iii) she has received adequate consideration for her agreement to the restrictions set\nforth herein, including but not limited to an equity interest in the Companies or their affiliates.\n6.\nRemedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot be\nreasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7.\nNotification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8.\nSurvival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Companies.\n9.\nModification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Companies\nand Executive.\n10.\nNo Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Companies or its affiliates for compensation. Except as otherwise provided in other written agreements, including the Employment\nAgreement, the Companies may terminate their relationship with Executive at will.\n11.\nMiscellaneous.\n11.1\nAmendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay\nin the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a\nwaiver of such right or remedy generally.\n11.2\nNotices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with\ndelivery fees paid, to the principal business address of the Companies or the address of Executive on file with the Companies, as applicable;\nor (ii) on the date transmitted by electronic mail to jNewbery@ahpfund.com in the case of the Companies and to deann1890@gmail.com in\nthe case of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other\nwritten confirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n3\n11.3\nGoverning Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by\nregular mail to the address set forth above and/or by any means authorized by Illinois law.\n11.4\nLanguage Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the\ndrafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall\nnot apply to the interpretation of this Agreement.\n11.5\nNo Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute an\noffer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6\nSignatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g., via DocuSign.\n11.7\nBinding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8\nTitles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or\nplural as the identity of the person or persons may require.\n11.10\nDays. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be\nconsidered timely if paid, given, or performed on the next succeeding business day.\n11.11\nEntire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\n4\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAFIP SERVICING, LLC\nBy /s/ Jorge Newbery\nJorge Newbery, CEO\nAFIP CAPITAL MANAGEMENT, LLC\nBy /s/ Jorge Newbery\nJorge Newbery, Manager\nBy /s/ DeAnn O’Donovan\nDeAnn O’Donovan\n5\nSCHEDULE 3.2\nExcluded Persons\nMary Anne Batara\nTom Sang\nChristine Wujek\nEleni Marudas\nIrene Calzadilla\nStephanie Boban\n6
cf7220567752eec2fddcd50c7ca827cb.pdf	effective_date jurisdiction party term	EX-10.5 13 dex105.htm FORM OF AT-WILL EMPLOYEMENT, CONFIDENTIAL INFORMATION, INVENTION\nASSIGNMENT...\nEXHIBIT 10.5\nACOLOGIX, INC.\nAT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT,\nAND ARBITRATION AGREEMENT\nAs a condition of my employment with Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing:\n1. At-Will Employment. I understand and acknowledge that my employment with the Company is for an unspecified duration and\nconstitutes “at-will” employment. I also understand that any representation to the contrary is unauthorized and not valid unless obtained in writing\nand signed by the President of the Company. I acknowledge that this employment relationship may be terminated at any time, with or without good\ncause or for any or no cause, at the option either of the Company or myself, with or without notice.\n2. Confidential Information.\n(a) Company Information. I agree at all times during the term of my employment and thereafter, to hold in strictest confidence, and\nnot to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board\nof Directors of the Company, any Confidential Information of the Company, except under a non-disclosure agreement duly authorized and\nexecuted by the Company. I understand that “Confidential Information” means any non-public information that relates to the actual or\nanticipated business or research and development of the Company, technical data, trade secrets or know-how, including, but not limited to,\nresearch, product plans or other information regarding Company’s products or services and markets therefor, customer lists and customers\n(including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my\nemployment), markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances or other business information disclosed to me by the Company either directly or indirectly, in\nwriting, orally or by drawings or observation of parts or equipment. I further understand that Confidential Information does not include any of\nthe foregoing items which have become publicly known and made generally available through no wrongful act of mine or of others who were\nunder confidentiality obligations as to the item or items involved or improvements or new versions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the\npremises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless\nconsented to in writing by such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their\nconfidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose\nit to any person, firm or corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s\nagreement with such third party.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company (collectively\nreferred to as “Prior Inventions”), which belong to me, which relate to the Company’s proposed business, products or research and\ndevelopment, and which are not\nassigned to the Company hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention owned by me or in which I have an\ninterest, I hereby grant to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license to make, have\nmade, modify, use and sell such Prior Invention as part of or in connection with such product, process or service, and to practice any method\nrelated thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole\nright and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all\ninventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets,\nwhether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to\npractice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the employ of the Company\n(collectively referred to as “Inventions”), except as provided in Section 3(f) below. I further acknowledge that all original works of authorship\nwhich are made by me (solely or jointly with others) within the scope of and during the period of my employment with the Company and\nwhich are protectible by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. I understand and\nagree that the decision whether or not to commercialize or market any invention developed by me solely or jointly with others is within the\nCompany’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the Company’s efforts to\ncommercialize or market any such invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and\nto any and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United\nStates or any of its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Inventions made by me (solely\nor jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches, drawings, and\nany other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all\ntimes.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in every proper\nway to secure the Company’s rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to\napply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive\nrights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating\nthereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers\nshall continue after the termination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other\nreason to secure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations\ncovering Inventions or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file\nany such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright\nregistrations thereon with the same legal force and effect as if executed by me.\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company\ndo not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto as Exhibit B).\nI will advise the Company promptly in writing of any inventions that I believe meet the criteria in California Labor Code Section 2870 and are\nnot otherwise disclosed on Exhibit A.\n2\n4. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n5. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will\nnot keep in my possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence,\nspecifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items\ndeveloped by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors or assigns, including,\nwithout limitation, those records maintained pursuant to paragraph 3(d). In the event of the termination of my employment, I agree to sign and\ndeliver the “Termination Certification” attached hereto as Exhibit C.\n6. Notification of New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the\nCompany to my new employer about my rights and obligations under this Agreement.\n7. Solicitation of Employees. I agree that for a period of twelve (12) months immediately following the termination of my relationship with\nthe Company for any reason, whether with or without cause, I shall not either directly or indirectly solicit, induce, recruit or encourage any of the\nCompany’s employees to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away\nemployees of the Company, either for myself or for any other person or entity.\n8. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached as Exhibit D hereto.\n9. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I\nrepresent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Company. I hereby represent and warrant that I have not entered into, and I\nagree I will not enter into, any oral or written agreement in conflict herewith.\n10. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and\nmy receipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that any and all\ncontroversies, claims, or disputes with anyone (including the Company and any employee, officer, director, shareholder or benefit plan of the\nCompany in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with the Company or the\ntermination of my employment with the Company, including any breach of this Agreement, shall be subject to binding arbitration under the\narbitration rules set forth in California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 (the “Rules”) and\npursuant to California law. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory\nclaims under state or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With\nDisabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Worker\nAdjustment and Retraining Notification Act, the California Fair Employment and Housing Act, the Family and Medical Leave Act, the\nCalifornia Family Rights Act, the California Labor Code, claims of harassment, discrimination or wrongful termination and any statutory\nclaims. I further understand that this Agreement to arbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that the arbitrator\nshall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or\nadjudication and motions\n3\nto dismiss and demurrers, prior to any arbitration hearing. I agree that the arbitrator shall issue a written decision on the merits. I also agree that\nthe arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. I understand that\nthe Company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that I shall pay the first $125.00 of any\nfiling fees associated with any arbitration I initiate. I agree that the arbitrator shall administer and conduct any arbitration in a manner\nconsistent with the Rules and that to the extent that the AAA’s National Rules for the Resolution of Employment Disputes conflict with the\nRules, the Rules shall take precedence.\n(c) Remedy. Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any\ndispute between me and the Company. Accordingly, except as provided for by the Rules and this Agreement, neither I nor the Company will\nbe permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to\ndisregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the Company to adopt a policy not\notherwise required by law which the Company has not adopted.\n(d) Availability of injunctive relief. Both parties agree that any party may petition a court for injunctive relief as permitted by the\nRules, including, but not limited to, where either party alleges or claims a violation of the At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement between me and the Company or any other agreement regarding trade secrets, confidential\ninformation, nonsolicitation or Labor Code §2870. Both parties understand that any breach or threatened breach of such an agreement will\ncause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance\nof an injunction. In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorneys’\nfees.\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local,\nstate or federal administrative body such as the Department of Fair Employment and Housing, the Equal Employment Opportunity\nCommission or the Workers’ Compensation Board. This Agreement does, however, preclude me from pursuing court action regarding any\nsuch claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress\nor undue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have\nasked any questions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it,\nincluding that I AM WAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice\nof an attorney of my choice before signing this Agreement.\n11. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. I\nhereby expressly consent to the personal jurisdiction of the state and federal courts located in California for any lawsuit filed there against me\nby the Company arising from or relating to this Agreement.\n(b) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me concerning\nthe subject matter herein and supersedes all prior discussions or representations between us including, but not limited to, any representations\nmade during my interview(s) or relocation negotiations, whether written or oral. No modification of or amendment to this Agreement, nor any\nwaiver of rights under this Agreement, will be effective unless in writing signed by the President of the Company and me. Any subsequent\nchange or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will\ncontinue in full force and effect.\n4\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives\nand will be for the benefit of the Company, its successors, and its assigns.\nDate:\nSignature\nName of Employee (typed or printed)\nWitness:\nSignature\nName (typed or printed)\n5\nExhibit A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nExhibit B\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME – EXEMPTION FROM AGREEMENT\n(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from\nbeing required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\nExhibit C\nACOLOGIX, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s At-Will Employment, Confidential Information, Invention\nAssignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of authorship (as defined\ntherein), conceived or made by me (solely or jointly with others) covered by that agreement.\nI further agree that, in compliance with the Employment, Confidential Information, Invention Assignment, and Arbitration Agreement, I will\npreserve as confidential all trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how,\ndesigns, formulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business\nplans, financial information or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants or\nlicensees.\nI further agree that for twelve (12) months from this date, I will not hire any employees of the Company and I will not solicit, induce, recruit or\nencourage any of the Company’s employees to leave their employment.\nDate:\n(Employee’s Signature)\n(Type/Print Employee’s Name)\nExhibit D\nACOLOGIX, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Acologix, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the highest\nprinciples of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or give the\nappearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising situations\nwhich must be avoided. Any exceptions must be reported to the President and written approval for continuation must be obtained.\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will Employment, Confidential\nInformation, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.	EX-10.5 13 dex105.htm FORM OF AT-WILL EMPLOYEMENT, CONFIDENTIAL INFORMATION, INVENTION\nASSIGNMENT...\nEXHIBIT 10.5\nACOLOGIX, INC.\nAT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT,\nAND ARBITRATION AGREEMENT\nAs a condition of my employment with Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing:\n1. At-Will Employment. I understand and acknowledge that my employment with the Company is for an unspecified duration and\nconstitutes “at-will” employment. I also understand that any representation to the contrary is unauthorized and not valid unless obtained in writing\nand signed by the President of the Company. I acknowledge that this employment relationship may be terminated at any time, with or without good\ncause or for any or no cause, at the option either of the Company or myself, with or without notice.\n2. Confidential Information.\n(@) Company Information. I agree at all times during the term of my employment and thereafter, to hold in strictest confidence, and\nnot to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board\nof Directors of the Company, any Confidential Information of the Company, except under a non-disclosure agreement duly authorized and\nexecuted by the Company. I understand that “Confidential Information” means any non-public information that relates to the actual or\nanticipated business or research and development of the Company, technical data, trade secrets or know-how, including, but not limited to,\nresearch, product plans or other information regarding Company’s products or services and markets therefor, customer lists and customers\n(including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my\nemployment), markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances or other business information disclosed to me by the Company either directly or indirectly, in\nwriting, orally or by drawings or observation of parts or equipment. I further understand that Confidential Information does not include any of\nthe foregoing items which have become publicly known and made generally available through no wrongful act of mine or of others who were\nunder confidentiality obligations as to the item or items involved or improvements or new versions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the\npremises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless\nconsented to in writing by such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their\nconfidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose\nit to any person, firm or corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s\nagreement with such third party.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company (collectively\nreferred to as “Prior Inventions”), which belong to me, which relate to the Company’s proposed business, products or research and\ndevelopment, and which are not\nassigned to the Company hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention owned by me or in which I have an\ninterest, I hereby grant to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license to make, have\nmade, modify, use and sell such Prior Invention as part of or in connection with such product, process or service, and to practice any method\nrelated thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole\nright and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all\ninventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets,\nwhether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to\npractice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the employ of the Company\n(collectively referred to as “Inventions”), except as provided in Section 3(f) below. I further acknowledge that all original works of authorship\nwhich are made by me (solely or jointly with others) within the scope of and during the period of my employment with the Company and\nwhich are protectible by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. I understand and\nagree that the decision whether or not to commercialize or market any invention developed by me solely or jointly with others is within the\nCompany’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the Company’s efforts to\ncommercialize or market any such invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and\nto any and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United\nStates or any of its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Inventions made by me (solely\nor jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches, drawings, and\nany other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all\ntimes.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in every proper\nway to secure the Company’s rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to\napply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive\nrights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating\nthereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers\nshall continue after the termination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other\nreason to secure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations\ncovering Inventions or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file\nany such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright\nregistrations thereon with the same legal force and effect as if executed by me.\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company\ndo not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto as Exhibit B).\nI will advise the Company promptly in writing of any inventions that I believe meet the criteria in California Labor Code Section 2870 and are\nnot otherwise disclosed on Exhibit A.\n4. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n5. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will\nnot keep in my possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence,\nspecifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items\ndeveloped by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors or assigns, including,\nwithout limitation, those records maintained pursuant to paragraph 3(d). In the event of the termination of my employment, I agree to sign and\ndeliver the “Termination Certification” attached hereto as Exhibit C.\n6. Notification of New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the\nCompany to my new employer about my rights and obligations under this Agreement.\n7. Solicitation of Employees. I agree that for a period of twelve (12) months immediately following the termination of my relationship with\nthe Company for any reason, whether with or without cause, I shall not either directly or indirectly solicit, induce, recruit or encourage any of the\nCompany’s employees to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away\nemployees of the Company, either for myself or for any other person or entity.\n8. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached as Exhibit D hereto.\n9. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I\nrepresent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Company. I hereby represent and warrant that I have not entered into, and I\nagree [ will not enter into, any oral or written agreement in conflict herewith.\n10. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and\nmy receipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that any and all\ncontroversies, claims, or disputes with anyone (including the Company and any employee, officer, director, shareholder or benefit plan of the\nCompany in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with the Company or the\ntermination of my employment with the Company, including any breach of this Agreement, shall be subject to binding arbitration under the\narbitration rules set forth in California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 (the “Rules”) and\npursuant to California law. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory\nclaims under state or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With\nDisabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Worker\nAdjustment and Retraining Notification Act, the California Fair Employment and Housing Act, the Family and Medical Leave Act, the\nCalifornia Family Rights Act, the California Labor Code, claims of harassment, discrimination or wrongful termination and any statutory\nclaims. I further understand that this Agreement to arbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that the arbitrator\nshall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or\nadjudication and motions\nto dismiss and demurrers, prior to any arbitration hearing. I agree that the arbitrator shall issue a written decision on the merits. I also agree that\nthe arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. I understand that\nthe Company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that I shall pay the first $125.00 of any\nfiling fees associated with any arbitration I initiate. I agree that the arbitrator shall administer and conduct any arbitration in a manner\nconsistent with the Rules and that to the extent that the AAA’s National Rules for the Resolution of Employment Disputes conflict with the\nRules, the Rules shall take precedence.\n(c) Remedy. Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any\ndispute between me and the Company. Accordingly, except as provided for by the Rules and this Agreement, neither I nor the Company will\nbe permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to\ndisregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the Company to adopt a policy not\notherwise required by law which the Company has not adopted.\n(d) Availability of injunctive relief. Both parties agree that any party may petition a court for injunctive relief as permitted by the\nRules, including, but not limited to, where either party alleges or claims a violation of the At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement between me and the Company or any other agreement regarding trade secrets, confidential\ninformation, nonsolicitation or Labor Code §2870. Both parties understand that any breach or threatened breach of such an agreement will\ncause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance\nof an injunction. In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorneys’\nfees.\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local,\nstate or federal administrative body such as the Department of Fair Employment and Housing, the Equal Employment Opportunity\nCommission or the Workers’ Compensation Board. This Agreement does, however, preclude me from pursuing court action regarding any\nsuch claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress\nor undue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have\nasked any questions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it,\nincluding that I AM WAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice\nof an attorney of my choice before signing this Agreement.\n11. General Provisions.\n(@) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. I\nhereby expressly consent to the personal jurisdiction of the state and federal courts located in California for any lawsuit filed there against me\nby the Company arising from or relating to this Agreement.\n(b) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me concerning\nthe subject matter herein and supersedes all prior discussions or representations between us including, but not limited to, any representations\nmade during my interview(s) or relocation negotiations, whether written or oral. No modification of or amendment to this Agreement, nor any\nwaiver of rights under this Agreement, will be effective unless in writing signed by the President of the Company and me. Any subsequent\nchange or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will\ncontinue in full force and effect.\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives\nand will be for the benefit of the Company, its successors, and its assigns.\nDate:\nSignature\nName of Employee (typed or printed)\nWitness:\nSignature\nName (typed or printed)\nTitle Date\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nExhibit A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nIdentifying Number or Brief Description\nExhibit B\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME - EXEMPTION FROM AGREEMENT\n(@) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from\nbeing required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\nExhibit C\nACOLOGIX, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s At-Will Employment, Confidential Information, Invention\nAssignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of authorship (as defined\ntherein), conceived or made by me (solely or jointly with others) covered by that agreement.\nI further agree that, in compliance with the Employment, Confidential Information, Invention Assignment, and Arbitration Agreement, I will\npreserve as confidential all trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how,\ndesigns, formulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business\nplans, financial information or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants or\nlicensees.\nI further agree that for twelve (12) months from this date, I will not hire any employees of the Company and I will not solicit, induce, recruit or\nencourage any of the Company’s employees to leave their employment.\nDate:\n(Employee’s Signature)\n(Type/Print Employee’s Name)\nExhibit D\nACOLOGIX, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Acologix, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the highest\nprinciples of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or give the\nappearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising situations\nwhich must be avoided. Any exceptions must be reported to the President and written approval for continuation must be obtained.\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will Employment, Confidential\nInformation, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. [Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.	EX-10.5 13 dex105.htm FORM OF AT-WILL EMPLOYEMENT, CONFIDENTIAL INFORMATION, INVENTION\nASSIGNMENT..\nEXHIBIT 10.5\nACOLOGIX, INC.\nAT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT,\nAND ARBITRATION AGREEMENT\nAs a condition of my employment with Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together the "Company"), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing:\n1. At-Will Employment. I understand and acknowledge that my employment with the Company is for an unspecified duration and\nconstitutes "at-will" employment. I also understand that any representation to the contrary is unauthorized and not valid unless obtained in writing\nand signed by the President of the Company. I acknowledge that this employment relationship may be terminated at any time, with or without good\ncause or for any or no cause, at the option either of the Company or myself, with or without notice.\n2. Confidential Information.\n(a) Company Information I agree at all times during the term of my employment and thereafter, to hold in strictest confidence, and\nnot to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board\nof Directors of the Company, any Confidentia Information of the Company, except under a non-disclosure agreement duly authorized and\nexecuted by the Company. I understand that "Confidentia Information" means any non-public information that relates to the actual or\nanticipated business or research and development of the Company, technical data, trade secrets or know-how, including, but not limited to,\nresearch, product plans or other information regarding Company's products or services and markets therefor, customer lists and customers\n(including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my\nemployment), markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances or other business information disclosed to me by the Company either directly or indirectly, in\nwriting, orally or by drawings or observation of parts or equipment. I further understand that Confidential Information does not include any of\nthe foregoing items which have become publicly known and made generally available through no wrongful act of mine or of others who were\nunder confidentiality obligations as to the item or items involved or improvements or new versions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the\npremises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless\nconsented to in writing by such employer, person or entity.\n(c) Third Party. Information. I recognize that the Company has received and in the future will receive from third parties their\nconfidential or proprietary information subject to a duty on the Company's part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose\nit to any person, firm or corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company's\nagreement with such third party.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company (collectively\nreferred to as "Prior Inventions"), which belong to me, which relate to the Company's proposed business, products or research and\ndevelopment, and which are not\nassigned to the Company hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention owned by me or in which I have an\ninterest, I hereby grant to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license to make, have\nmade, modify, use and sell such Prior Invention as part of or in connection with such product, process or service, and to practice any method\nrelated thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole\nright and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all\ninventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets,\nwhether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to\npractice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the employ of the Company\n(collectively referred to as "Inventions"), except as provided in Section 3(f) below. I further acknowledge that all original works of authorship\nwhich are made by me (solely or jointly with others) within the scope of and during the period of my employment with the Company and\nwhich are protectible by copyright are "works made for hire," as that term is defined in the United States Copyright Act. I understand and\nagree that the decision whether or not to commercialize or market any invention developed by me solely or jointly with others is within the\nCompany's sole discretion and for the Company's sole benefit and that no royalty will be due to me as a result of the Company's efforts to\ncommercialize or market any such invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and\nto any and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United\nStates or any of its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Inventions made by me (solely\nor jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches, drawings, and\nany other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all\ntimes.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company's expense, in every proper\nway to secure the Company's rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to\napply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive\nrights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating\nthereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers\nshall continue after the termination of this Agreement If the Company is unable because of my mental or physical incapacity or for any other\nreason to secure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations\ncovering Inventions or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file\nany such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright\nregistrations thereon with the same legal force and effect as if executed by me.\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company\ndo not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto as Exhibit B)\nI will advise the Company promptly in writing of any inventions that I believe meet the criteria in California Labor Code Section 2870 and are\nnot otherwise disclosed on Exhibit A.\n2\n4. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n5.\nReturning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will\nnot\nkeep\nin\nmy possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence,\nspecifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items\ndeveloped by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors or assigns, including,\nwithout limitation, those records maintained pursuant to paragraph 3(d). In the event of the termination of my employment, I agree to sign and\ndeliver the "Termination Certification" attached hereto as Exhibit C.\n6.\nNotification of New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the\nCompany to my new employer about my rights and obligations under this Agreement.\n7. Solicitation of Employees. I agree that for a period of twelve (12) months immediately following the termination of my relationship with\nthe Company for any reason, whether with or without cause, I shall not either directly or indirectly solicit, induce, recruit or encourage any of the\nCompany's employees to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away\nemployees of the Company, either for myself or for any other person or entity.\n8.\nConflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached as Exhibit D hereto.\n9. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I\nrepresent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Company. I hereby represent and warrant that I have not entered into, and I\nagree I will not enter into, any oral or written agreement in conflict herewith.\n10. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and\nmy receipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that any and all\ncontroversies, claims, or disputes with anyone (including the Company and any employee, officer, director, shareholder or benefit plan of the\nCompany in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with the Company or the\ntermination of my employment with the Company, including any breach of this Agreement, shall be subject to binding arbitration under the\narbitration rules set forth in California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 (the "Rules") and\npursuant to California law. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory\nclaims under state or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With\nDisabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Worker\nAdjustment and Retraining Notification Act, the California Fair Employment and Housing Act, the Family and Medical Leave Act, the\nCalifornia Family Rights Act, the California Labor Code, claims of harassment, discrimination or wrongful termination and any statutory\nclaims. I further understand that this Agreement to arbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association ("AAA") and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that the arbitrator\nshall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or\nadjudication and motions\n3\nto dismiss and demurrers, prior to any arbitration hearing. I agree that the arbitrator shall issue a written decision on the merits. I also agree that\nthe arbitrator shall have the power to award any remedies, including attorneys' fees and costs, available under applicable law. I understand that\nthe Company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that I shall pay the first $125.00 of any\nfiling fees associated with any arbitration I initiate. I agree that the arbitrator shall administer and conduct any arbitration in a manner\nconsistent with the Rules and that to the extent that the AAA's National Rules for the Resolution of Employment Disputes conflict with the\nRules, the Rules shall take precedence.\n(c)\nRemedy.. Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any\ndispute between me and the Company. Accordingly, except as provided for by the Rules and this Agreement, neither I nor the Company will\nbe permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to\ndisregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the Company to adopt a policy not\notherwise required by law which the Company has not adopted.\n(d) Availability. of injunctive relief. Both parties agree that any party may petition a court for injunctive relief as permitted by the\nRules, including, but not limited to, where either party alleges or claims a violation of the At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement between me and the Company or any other agreement regarding trade secrets, confidential\ninformation, nonsolicitation or Labor Code $2870. Both parties understand that any breach or threatened breach of such an agreement will\ncause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance\nof an injunction. In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorneys'\nfees.\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local,\nstate or federal administrative body such as the Department of Fair Employment and Housing, the Equal Employment Opportunity\nCommission or the Workers' Compensation Board. This Agreement does, however, preclude me from pursuing court action regarding any\nsuch claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress\nor undue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have\nasked any questions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it,\nincluding that I AM WAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice\nof an attorney of my choice before signing this Agreement.\n11. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction This Agreement will be governed by the laws of the State of California. I\nhereby expressly consent to the personal jurisdiction of the state and federal courts located in California for any lawsuit filed there against me\nby the Company arising from or relating to this Agreement.\n(b) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me concerning\nthe subject matter herein and supersedes all prior discussions or representations between us including, but not limited to, any representations\nmade during my interview(s) or relocation negotiations, whether written or oral. No modification of or amendment to this Agreement, nor any\nwaiver of rights under this Agreement, will be effective unless in writing signed by the President of the Company and me. Any subsequent\nchange or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n(c) Severability.. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will\ncontinue in full force and effect.\n4\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives\nand will be for the benefit of the Company, its successors, and its assigns\nDate:\nSignature\nName of Employee (typed or printed)\nWitness:\nSignature\nName (typed or printed)\n5\nExhibit A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nExhibit B\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME - EXEMPTION FROM AGREEMENT\n(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights\nin\nan\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from\nbeing required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."\nExhibit C\nACOLOGIX, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together, the "Company").\nI further certify that I have complied with all the terms of the Company's At-Will Employment, Confidential Information, Invention\nAssignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of authorship (as defined\ntherein), conceived or made by me (solely or jointly with others) covered by that agreement.\nI further agree that, in compliance with the Employment, Confidential Information, Invention Assignment, and Arbitration Agreement, I will\npreserve as confidential all trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how,\ndesigns, formulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business\nplans, financial information or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants or\nlicensees.\nI further agree that for twelve (12) months from this date, I will not hire any employees of the Company and I will not solicit, induce, recruit or\nencourage any of the Company's employees to leave their employment.\nDate:\n(Employee's Signature)\n(Type/Print Employee's Name)\nExhibit D\nACOLOGIX, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Acologix, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the highest\nprinciples of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or give the\nappearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising situations\nwhich must be avoided. Any exceptions must be reported to the President and written approval for continuation must be obtained.\n1.\nRevealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will Employment, Confidential\nInformation, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.	EX-10.5 13 dex105.htm FORM OF AT-WILL EMPLOYEMENT, CONFIDENTIAL INFORMATION, INVENTION\nASSIGNMENT...\nEXHIBIT 10.5\nACOLOGIX, INC.\nAT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT,\nAND ARBITRATION AGREEMENT\nAs a condition of my employment with Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing:\n1. At-Will Employment. I understand and acknowledge that my employment with the Company is for an unspecified duration and\nconstitutes “at-will” employment. I also understand that any representation to the contrary is unauthorized and not valid unless obtained in writing\nand signed by the President of the Company. I acknowledge that this employment relationship may be terminated at any time, with or without good\ncause or for any or no cause, at the option either of the Company or myself, with or without notice.\n2. Confidential Information.\n(a) Company Information. I agree at all times during the term of my employment and thereafter, to hold in strictest confidence, and\nnot to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board\nof Directors of the Company, any Confidential Information of the Company, except under a non-disclosure agreement duly authorized and\nexecuted by the Company. I understand that “Confidential Information” means any non-public information that relates to the actual or\nanticipated business or research and development of the Company, technical data, trade secrets or know-how, including, but not limited to,\nresearch, product plans or other information regarding Company’s products or services and markets therefor, customer lists and customers\n(including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my\nemployment), markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances or other business information disclosed to me by the Company either directly or indirectly, in\nwriting, orally or by drawings or observation of parts or equipment. I further understand that Confidential Information does not include any of\nthe foregoing items which have become publicly known and made generally available through no wrongful act of mine or of others who were\nunder confidentiality obligations as to the item or items involved or improvements or new versions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the\npremises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless\nconsented to in writing by such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their\nconfidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose\nit to any person, firm or corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s\nagreement with such third party.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company (collectively\nreferred to as “Prior Inventions”), which belong to me, which relate to the Company’s proposed business, products or research and\ndevelopment, and which are not\nassigned to the Company hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention owned by me or in which I have an\ninterest, I hereby grant to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license to make, have\nmade, modify, use and sell such Prior Invention as part of or in connection with such product, process or service, and to practice any method\nrelated thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole\nright and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all\ninventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets,\nwhether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to\npractice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the employ of the Company\n(collectively referred to as “Inventions”), except as provided in Section 3(f) below. I further acknowledge that all original works of authorship\nwhich are made by me (solely or jointly with others) within the scope of and during the period of my employment with the Company and\nwhich are protectible by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. I understand and\nagree that the decision whether or not to commercialize or market any invention developed by me solely or jointly with others is within the\nCompany’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the Company’s efforts to\ncommercialize or market any such invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and\nto any and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United\nStates or any of its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Inventions made by me (solely\nor jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches, drawings, and\nany other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all\ntimes.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in every proper\nway to secure the Company’s rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to\napply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive\nrights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating\nthereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers\nshall continue after the termination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other\nreason to secure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations\ncovering Inventions or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file\nany such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright\nregistrations thereon with the same legal force and effect as if executed by me.\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company\ndo not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto as Exhibit B).\nI will advise the Company promptly in writing of any inventions that I believe meet the criteria in California Labor Code Section 2870 and are\nnot otherwise disclosed on Exhibit A.\n2\n4. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n5. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will\nnot keep in my possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence,\nspecifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items\ndeveloped by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors or assigns, including,\nwithout limitation, those records maintained pursuant to paragraph 3(d). In the event of the termination of my employment, I agree to sign and\ndeliver the “Termination Certification” attached hereto as Exhibit C.\n6. Notification of New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the\nCompany to my new employer about my rights and obligations under this Agreement.\n7. Solicitation of Employees. I agree that for a period of twelve (12) months immediately following the termination of my relationship with\nthe Company for any reason, whether with or without cause, I shall not either directly or indirectly solicit, induce, recruit or encourage any of the\nCompany’s employees to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away\nemployees of the Company, either for myself or for any other person or entity.\n8. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached as Exhibit D hereto.\n9. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I\nrepresent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Company. I hereby represent and warrant that I have not entered into, and I\nagree I will not enter into, any oral or written agreement in conflict herewith.\n10. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and\nmy receipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that any and all\ncontroversies, claims, or disputes with anyone (including the Company and any employee, officer, director, shareholder or benefit plan of the\nCompany in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with the Company or the\ntermination of my employment with the Company, including any breach of this Agreement, shall be subject to binding arbitration under the\narbitration rules set forth in California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 (the “Rules”) and\npursuant to California law. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory\nclaims under state or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With\nDisabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Worker\nAdjustment and Retraining Notification Act, the California Fair Employment and Housing Act, the Family and Medical Leave Act, the\nCalifornia Family Rights Act, the California Labor Code, claims of harassment, discrimination or wrongful termination and any statutory\nclaims. I further understand that this Agreement to arbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that the arbitrator\nshall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or\nadjudication and motions\n3\nto dismiss and demurrers, prior to any arbitration hearing. I agree that the arbitrator shall issue a written decision on the merits. I also agree that\nthe arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. I understand that\nthe Company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that I shall pay the first $125.00 of any\nfiling fees associated with any arbitration I initiate. I agree that the arbitrator shall administer and conduct any arbitration in a manner\nconsistent with the Rules and that to the extent that the AAA’s National Rules for the Resolution of Employment Disputes conflict with the\nRules, the Rules shall take precedence.\n(c) Remedy. Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any\ndispute between me and the Company. Accordingly, except as provided for by the Rules and this Agreement, neither I nor the Company will\nbe permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to\ndisregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the Company to adopt a policy not\notherwise required by law which the Company has not adopted.\n(d) Availability of injunctive relief. Both parties agree that any party may petition a court for injunctive relief as permitted by the\nRules, including, but not limited to, where either party alleges or claims a violation of the At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement between me and the Company or any other agreement regarding trade secrets, confidential\ninformation, nonsolicitation or Labor Code §2870. Both parties understand that any breach or threatened breach of such an agreement will\ncause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance\nof an injunction. In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorneys’\nfees.\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local,\nstate or federal administrative body such as the Department of Fair Employment and Housing, the Equal Employment Opportunity\nCommission or the Workers’ Compensation Board. This Agreement does, however, preclude me from pursuing court action regarding any\nsuch claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress\nor undue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have\nasked any questions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it,\nincluding that I AM WAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice\nof an attorney of my choice before signing this Agreement.\n11. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. I\nhereby expressly consent to the personal jurisdiction of the state and federal courts located in California for any lawsuit filed there against me\nby the Company arising from or relating to this Agreement.\n(b) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me concerning\nthe subject matter herein and supersedes all prior discussions or representations between us including, but not limited to, any representations\nmade during my interview(s) or relocation negotiations, whether written or oral. No modification of or amendment to this Agreement, nor any\nwaiver of rights under this Agreement, will be effective unless in writing signed by the President of the Company and me. Any subsequent\nchange or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will\ncontinue in full force and effect.\n4\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives\nand will be for the benefit of the Company, its successors, and its assigns.\nDate:\nSignature\nName of Employee (typed or printed)\nWitness:\nSignature\nName (typed or printed)\n5\nExhibit A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nExhibit B\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME – EXEMPTION FROM AGREEMENT\n(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from\nbeing required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\nExhibit C\nACOLOGIX, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s At-Will Employment, Confidential Information, Invention\nAssignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of authorship (as defined\ntherein), conceived or made by me (solely or jointly with others) covered by that agreement.\nI further agree that, in compliance with the Employment, Confidential Information, Invention Assignment, and Arbitration Agreement, I will\npreserve as confidential all trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how,\ndesigns, formulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business\nplans, financial information or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants or\nlicensees.\nI further agree that for twelve (12) months from this date, I will not hire any employees of the Company and I will not solicit, induce, recruit or\nencourage any of the Company’s employees to leave their employment.\nDate:\n(Employee’s Signature)\n(Type/Print Employee’s Name)\nExhibit D\nACOLOGIX, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Acologix, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the highest\nprinciples of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or give the\nappearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising situations\nwhich must be avoided. Any exceptions must be reported to the President and written approval for continuation must be obtained.\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will Employment, Confidential\nInformation, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.
cfbc84fec6483fdaedb028c54380609d.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 3 d832000dex99e3.htm EX-99.(E)(3)\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”), is by and between BioMarin\nPharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BioMarin”), and Prosensa Holding N.V., a\nNetherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may\nbe referred to herein as a “Party” or collectively as the “Parties.”\nWHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a\npotential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”,\nand in the capacity of receiving information, each party is referred to as the “Receiving Party”.)\nNOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:\n1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their\nAffiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the\ndevelopment and commercialization of Prosensa’s products including, but not limited to, Drisapersen (the “Purpose”), and solely for that\nPurpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which\nit desires be treated as confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by,\nunder the control of, or in common control with such Party.\n2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical information\npreviously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or\none or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:\n(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts,\nideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific\npreclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts,\nproduct pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans,\nforecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public\ninformation or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing\nParty; and\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been\nprepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type\nreferred to in Section 2(a) above;\nLOGO\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made\navailable to the Receiving Party; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\n3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations\nto protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon\nReceiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.\n4. Treatment of Confidential Information.\n(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not\nuse the Confidential Information for any other purpose, including but not limited to using it in connection with the development or\ncommercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent\noffice or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate\nConfidential Information only to those employees, independent contractors, advisors, or Affiliates, on a “need to know” basis in order for\nReceiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates\nshall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates\nshall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing\nParty immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of\nDisclosing Party that may come to Receiving Party’s attention.\n(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions\nto protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least\nthe same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree\nof care), acting in a manner consistent with its obligations under this Agreement.\n(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential Information\ndisclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the\nConfidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential\nInformation as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully\nreceived by the Receiving Party on a non-confidential basis from a third party without breach of a duty of\nLOGO\nconfidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written\npublication, and shall not mean information the substance of which must be pieced together from a number of different publications or other\nsources.\n(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential\nInformation that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction,\nprovided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such\nrequirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential\ntreatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.\n(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party\nreserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a\nbinding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any\nConfidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.\n(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into\nthe business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn\nover to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials\ncontaining any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential\nInformation, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing\nParty’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer\nsystem’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this\nAgreement.\n(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent,\ncopyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or\nto the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing\nParty shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including,\nwithout limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.\n(h) Both parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access\nto material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United\nStates or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an\nissuer of securities, from\nLOGO\npurchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n5. Miscellaneous.\n(a) Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring\nany right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or trademark. Receiving Party will make no public\nannouncement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without\nthe prior written consent of Disclosing Party, which may be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to\ncomply with applicable law or regulations.\n(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written\nconsent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.\n(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected\nand shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.\n(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this\nAgreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.\n(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or\nreputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent\nto the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.\n(f) Governing Law: Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California\nwithout regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this\nAgreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent\nto the personal jurisdiction and exclusive venue of these courts.\n(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of\nDisclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party\nwill entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause\n(f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.\nLOGO\n(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.\n(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to\nthe subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between\nthe Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing\nand signed by all Parties.\n(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall\nconstitute an original and all of which, when taken together, shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.\nPROSENSA HOLDING N.V.\nBIOMARIN PHARMACEUTICAL INC.\nLOGO\nBy: /s/ Luc Dochez\nBy: /s/ Joshua Grass\nName: Luc Dochez\nName: Joshua Grass\nTitle: Chief Business Officer\nTitle: SVP, Business and Corporate Development	EX-99.(E)(3) 3 d832000dex99e3.htm EX-99.(E)(3)\nExhibit (¢)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”), is by and between BioMarin\nPharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BieMarin”), and Prosensa Holding N.V.,, a\nNetherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may\nbe referred to herein as a “Party” or collectively as the “Parties.”\nWHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a\npotential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”,\nand in the capacity of receiving information, each party is referred to as the “Receiving Party”.)\nNOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:\n1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their\nAffiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the\ndevelopment and commercialization of Prosensa’s products including, but not limited to, Drisapersen (the “Purpose”), and solely for that\nPurpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which\nit desires be treated as confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by,\nunder the control of, or in common control with such Party.\n2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical information\npreviously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or\none or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:\n(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts,\nideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific\npreclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts,\nproduct pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans,\nforecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public\ninformation or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing\nParty; and\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been\nprepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type\nreferred to in Section 2(a) above;\n».LOGO\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made\navailable to the Receiving Party; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\n3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations\nto protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon\nReceiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.\n4. Treatment of Confidential Information.\n(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not\nuse the Confidential Information for any other purpose, including but not limited to using it in connection with the development or\ncommercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent\noffice or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate\nConfidential Information only to those employees, independent contractors, advisors, or Affiliates, on a “need to know” basis in order for\nReceiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates\nshall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates\nshall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing\nParty immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of\nDisclosing Party that may come to Receiving Party’s attention.\n(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions\nto protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least\nthe same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree\nof care), acting in a manner consistent with its obligations under this Agreement.\n(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential Information\ndisclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the\nConfidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential\nInformation as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully\nreceived by the Receiving Party on a non-confidential basis from a third party without breach of a duty of\n».LOGO\nconfidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written\npublication, and shall not mean information the substance of which must be pieced together from a number of different publications or other\nsources.\n(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential\nInformation that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction,\nprovided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such\nrequirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential\ntreatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.\n(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party\nreserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a\nbinding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any\nConfidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.\n(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into\nthe business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn\nover to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials\ncontaining any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential\nInformation, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing\nParty’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer\nsystem’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this\nAgreement.\n(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent,\ncopyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or\nto the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing\nParty shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including,\nwithout limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.\n(h) Both parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access\nto material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United\nStates or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an\nissuer of securities, from\n».LOGO\npurchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n5. Miscellaneous.\n(a) Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring\nany right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or trademark. Receiving Party will make no public\nannouncement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without\nthe prior written consent of Disclosing Party, which may be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to\ncomply with applicable law or regulations.\n(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written\nconsent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.\n(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected\nand shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.\n(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this\nAgreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.\n(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or\nreputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent\nto the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.\n() Governing Law: Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California\nwithout regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this\nAgreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent\nto the personal jurisdiction and exclusive venue of these courts.\n(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of\nDisclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party\nwill entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause\n(f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.\n».LOGO\n(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.\n(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to\nthe subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between\nthe Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing\nand signed by all Parties.\n(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall\nconstitute an original and all of which, when taken together, shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.\n’L\nPROSENSA HOLDING N.V. BIOMARIN PHARMACEUTICAL INC. LOGO\nBy:  /s/ Luc Dochez By: /s/ Joshua Grass\nName: Luc Dochez Name: Joshua Grass\nTitle: Chief Business Officer Title:  SVP, Business and Corporate Development	X-99.(E)(3) 3 d832000dex99e3.htm EX-99.(E)(3)\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the "Agreement"), effective July 31, 2014 (the "Effective Date"), is by and between BioMarin\nPharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 ("BioMarin"), and Prosensa Holding N.V., a\nNetherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. ("Prosensa"). Each of BioMarin and Prosensa may\nbe referred to herein as a "Party" or collectively as the "Parties."\nWHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a\npotential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the "Disclosing Party",\nand in the capacity of receiving information, each party is referred to as the "Receiving Party".)\nNOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:\n1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their\nAffiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the\ndevelopment and commercialization of Prosensa's products including, but not limited to, Drisapersen (the "Purpose"), and solely for that\nPurpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which\nit desires be treated as confidential. For purposes of this Agreement, with respect to a Party, "Affiliate" shall mean a company controlled by,\nunder the control of, or in common control with such Party.\n2. Confidential Information. As used herein, "Confidential Information" shall mean any and all technical and non-technical information\npreviously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or\none or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:\n(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts,\nideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific\npreclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts,\nproduct pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans,\nforecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public\ninformation or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing\nParty; and\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been\nprepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type\nreferred to in Section 2(a) above;\nALOGO\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made\navailable to the Receiving Party; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\n3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party's obligations\nto protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon\nReceiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.\n4. Treatment of Confidential Information.\n(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not\nuse the Confidential Information for any other purpose, including but not limited to using it in connection with the development or\ncommercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent\noffice or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate\nConfidential Information only to those employees, independent contractors, advisors, or Affiliates, on a "need to know" basis in order for\nReceiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates\nshall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates\nshall\nbe bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing\nParty immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of\nDisclosing Party that may come to Receiving Party's attention.\n(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions\nto\nprotect the Confidential Information at all times from unauthorized disclosure, publication, or use, including without limitation, using at least\nthe same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree\nof care), acting in a manner consistent with its obligations under this Agreement.\n(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidentia Information\ndisclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party's possession before receipt of the\nConfidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential\nInformation as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully\nreceived by the Receiving Party on a non-confidential basis from a third party without breach of a duty of\nLOGO\nconfidentiality to Disclosing Party. As used herein, the term "publicly available" shall mean readily accessible to the public in a written\npublication, and shall not mean information the substance of which must be pieced together from a number of different publications or other\nsources.\n(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential\nInformation that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction,\nprovided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such\nrequirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential\ntreatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.\n(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party\nreserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a\nbinding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any\nConfidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.\n(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into\nthe\nbusiness\nor scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly\nturn\nover to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials\ncontaining any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential\nInformation, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing\nParty's request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer\nsystem's historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this\nAgreement.\n(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent,\ncopyright\nor\nother\nintellectual\nproperty\nright\nof\nDisclosing\nParty,\nnor\nshall\nthis\nAgreement\ngrant\nor\ntransfer\nto\nthe\nReceiving\nParty\nany\nright\nin\nor\nto the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing\nParty shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including,\nwithout limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.\n(h) Both parties hereby acknowledges that in its review the other party's Confidential Information it and its representatives will have access\nto material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United\nStates or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to\nan\nissuer of securities, from\nLOGO\npurchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n5. Miscellaneous.\n(a) Use of Names; Publicity.. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring\nany right on Receiving Party to use in any manner Disclosing Party's name or any trade name or trademark. Receiving Party will make no public\nannouncement or other public statement concerning the existence of this Agreement or the Parties' respective performances hereunder without\nthe prior written consent of Disclosing Party, which may be withheld in Disclosing Party's sole and absolute discretion, except as necessary to\ncomply with applicable law or regulations.\n(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written\nconsent of Disclosing Party, which consent may be given or withheld in Disclosing Party's sole and absolute discretion.\n(c) Severability.. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected\nand shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.\n(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this\nAgreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.\n(e) Notices All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or\nreputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent\nto the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.\n(f) Governing Law: Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California\nwithout\nregard\nto\nany\nconflict\nof\nlaw\nprinciples\nthat\nwould\nprovide\nfor\nthe\napplication\nof\nthe\nlaw\nof\nanother\njurisdiction.\nAny\ndisputes\nunder\nthis\nAgreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent\nto the personal jurisdiction and exclusive venue of these courts.\n(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of\nDisclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party\nwill entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause\n(f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.\nLOGO\n(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.\n(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to\nthe subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between\nthe Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing\nand signed by all Parties.\n(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall\nconstitute an original and all of which, when taken together, shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.\nPROSENSA HOLDING N.V.\nBIOMARIN PHARMACEUTICAL INC.\nLOGO\nBy:\n/s/ Luc Dochez\nBy:\n/s/ Joshua Grass\nName: Luc Dochez\nName: Joshua Grass\nTitle: Chief Business Officer\nTitle: SVP, Business and Corporate Development	EX-99.(E)(3) 3 d832000dex99e3.htm EX-99.(E)(3)\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”), is by and between BioMarin\nPharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BioMarin”), and Prosensa Holding N.V., a\nNetherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may\nbe referred to herein as a “Party” or collectively as the “Parties.”\nWHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a\npotential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”,\nand in the capacity of receiving information, each party is referred to as the “Receiving Party”.)\nNOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:\n1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their\nAffiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the\ndevelopment and commercialization of Prosensa’s products including, but not limited to, Drisapersen (the “Purpose”), and solely for that\nPurpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which\nit desires be treated as confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by,\nunder the control of, or in common control with such Party.\n2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical information\npreviously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or\none or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:\n(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts,\nideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific\npreclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts,\nproduct pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans,\nforecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public\ninformation or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing\nParty; and\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been\nprepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type\nreferred to in Section 2(a) above;\nLOGO\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made\navailable to the Receiving Party; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\n3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations\nto protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon\nReceiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.\n4. Treatment of Confidential Information.\n(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not\nuse the Confidential Information for any other purpose, including but not limited to using it in connection with the development or\ncommercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent\noffice or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate\nConfidential Information only to those employees, independent contractors, advisors, or Affiliates, on a “need to know” basis in order for\nReceiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates\nshall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates\nshall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing\nParty immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of\nDisclosing Party that may come to Receiving Party’s attention.\n(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions\nto protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least\nthe same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree\nof care), acting in a manner consistent with its obligations under this Agreement.\n(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential Information\ndisclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the\nConfidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential\nInformation as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully\nreceived by the Receiving Party on a non-confidential basis from a third party without breach of a duty of\nLOGO\nconfidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written\npublication, and shall not mean information the substance of which must be pieced together from a number of different publications or other\nsources.\n(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential\nInformation that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction,\nprovided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such\nrequirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential\ntreatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.\n(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party\nreserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a\nbinding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any\nConfidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.\n(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into\nthe business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn\nover to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials\ncontaining any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential\nInformation, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing\nParty’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer\nsystem’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this\nAgreement.\n(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent,\ncopyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or\nto the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing\nParty shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including,\nwithout limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.\n(h) Both parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access\nto material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United\nStates or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an\nissuer of securities, from\nLOGO\npurchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n5. Miscellaneous.\n(a) Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring\nany right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or trademark. Receiving Party will make no public\nannouncement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without\nthe prior written consent of Disclosing Party, which may be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to\ncomply with applicable law or regulations.\n(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written\nconsent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.\n(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected\nand shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.\n(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this\nAgreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.\n(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or\nreputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent\nto the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.\n(f) Governing Law: Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California\nwithout regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this\nAgreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent\nto the personal jurisdiction and exclusive venue of these courts.\n(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of\nDisclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party\nwill entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause\n(f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.\nLOGO\n(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.\n(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to\nthe subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between\nthe Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing\nand signed by all Parties.\n(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall\nconstitute an original and all of which, when taken together, shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.\nPROSENSA HOLDING N.V.\nBIOMARIN PHARMACEUTICAL INC.\nLOGO\nBy: /s/ Luc Dochez\nBy: /s/ Joshua Grass\nName: Luc Dochez\nName: Joshua Grass\nTitle: Chief Business Officer\nTitle: SVP, Business and Corporate Development
d022d8bf8c1c63e1e018ce081404b552.pdf	effective_date jurisdiction party term	EX-2.28 17 dex228.htm MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 2.28\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nPALM, INC.\nand\nPALMSOURCE, INC.\nEffective as of December 3, 2001\nTABLE OF CONTENTS\nPage\nARTICLE 1 DEFINITIONS\n1\n1.1\nANCILLARY AGREEMENTS\n1\n1.2\nBUSINESS SERVICES AGREEMENT\n1\n1.3\nCONFIDENTIAL INFORMATION\n1\n1.4\nCONFIDENTIALITY PERIOD\n2\n1.5\nDISCLOSING PARTY\n2\n1.6\nHIGHLY CONFIDENTIAL INFORMATION\n2\n1.7\nMASTER SEPARATION AGREEMENT\n2\n1.8\nPERSON\n3\n1.9\nRECEIVING PARTY\n3\n1.10\nSEPARATION DATE\n3\n1.11\nSUBSIDIARY\n3\n1.12\nTHIRD PARTY\n3\n1.13\nTRANSACTION AGREEMENTS\n3\nARTICLE 2 CONFIDENTIALITY\n3\n2.1\nCONFIDENTIALITY AND NON-USE OBLIGATIONS\n3\n2.2\nDISCLOSURE TO SUBLICENSEES\n4\n2.3\nCONTRACT MANUFACTURERS\n4\n2.4\nRESIDUALS\n4\n2.5\nCOMPELLED DISCLOSURE\n4\n2.6\nNO RESTRICTION ON DISCLOSING PARTY\n4\n2.7\nNO RESTRICTION ON REASSIGNMENT\n4\n2.8\nTHIRD PARTY RESTRICTIONS\n4\nARTICLE 3 WARRANTY DISCLAIMER\n5\nARTICLE 4 CONFIDENTIALITY OF AGREEMENT\n5\nARTICLE 5 TERM AND TERMINATION\n5\n5.1\nTERM\n5\n5.2\nSURVIVAL\n6\nARTICLE 6 DISPUTE RESOLUTION\n6\n6.1\nMEDIATION\n6\n6.2\nARBITRATION\n6\n6.3\nCOURT ACTION\n6\n6.4\nCONTINUITY OF SERVICE AND PERFORMANCE\n7\n6.5\nRESOLUTION BY PALMSOURCE COMMITTEE\n7\n-i-\nTABLE OF CONTENTS\n(Continued)\nPage\nARTICLE 7 MISCELLANEOUS PROVISIONS\n7\n7.1\nEXPORT RESTRICTIONS\n7\n7.2\nNO IMPLIED LICENSES\n7\n7.3\nINFRINGEMENT SUITS\n7\n7.4\nNO OTHER OBLIGATIONS\n8\n7.5\nENTIRE AGREEMENT\n8\n7.6\nGOVERNING LAW\n8\n7.7\nDESCRIPTIVE HEADINGS\n8\n7.8\nNOTICES\n8\n7.9\nNONASSIGNABILITY\n9\n7.10\nSEVERABILITY\n9\n7.11\nFAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE\n9\n7.12\nAMENDMENT\n9\n7.13\nCOUNTERPARTS\n9\n- ii-\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Master Confidential Disclosure Agreement (the “Agreement”) is executed on May 9, 2002 and made effective as of December 3, 2001\n(the “Effective Date”), between Palm, Inc., a Delaware corporation (“Palm”), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054 and PalmSource, Inc., a Delaware corporation (“PalmSource”), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054.\nRECITALS\nWHEREAS, the Board of Directors of Palm has determined that it is in the best interest of Palm and its stockholders to separate Palm’s\nexisting businesses into two independent businesses and have the current business of the Palm platform solutions group conducted through a wholly-\nowned subsidiary;\nWHEREAS, as part of the foregoing, Palm and have entered into a Master Separation Agreement (as defined below), which provides for,\namong other things, the execution and delivery of certain other agreements in order to facilitate and provide for the foregoing; and\nWHEREAS, also as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their\nConfidential Information (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE 1\nDEFINITIONS\nFor the purpose of this Agreement the following capitalized terms are defined in this Article 1 and shall have the meaning specified herein:\n1.1 ANCILLARY AGREEMENTS . “Ancillary Agreements” means the items and agreements listed in Section 2.1 of the Master Separation\nAgreement and all agreements and documents contemplated by such agreements.\n1.2 BUSINESS SERVICES AGREEMENT. “Business Services Agreement” means that certain Business Services Agreement between Palm\nand PalmSource.\n1.3 CONFIDENTIAL INFORMATION\n(a) “Confidential Information” means business information, technical data, know-how and other information which is not otherwise in\nthe public domain and of which the owner actively undertakes to restrict or control the disclosure to Third Parties in a manner reasonably\nintended to maintain its confidentiality, and which (i) is the subject of any Transaction Agreement and known to or in the possession of the\nReceiving Party as of the Separation Date or (ii) is disclosed to the Receiving Party pursuant to any Transaction Agreement for a period of one (1)\nyear after the Effective Date or such term during which services are provided under the Business Services Agreement, whichever is longer.\nConfidential Information may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned by\ninspection of computer programming code, equipment or facilities.\n(b) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party’s Confidential Information for purposes herein.\n(c) Notwithstanding the foregoing provisions of this Section 1.2, Confidential Information shall exclude information that: (i) was in the\nReceiving Party’s possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing Party and other than\nthrough the prior relationship of the Disclosing Party and the Receiving Party before the Separation Date; (ii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party; (iii) is rightfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (iv) is disclosed by the Disclosing Party to a Third Party without a duty of confidentiality on the Third Party; (v) is independently\ndeveloped by the Receiving Party; or (vi) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval.\n1.4 CONFIDENTIALITY PERIOD. “Confidentiality Period” means, (i) with respect to Confidential Information that is not Highly\nConfidential Information, five (5) years, and (ii) with respect to Highly Confidential Information, in perpetuity, after either (A) the Separation Date\nwith respect to Confidential Information of the Disclosing Party that is known to or in the possession of the Receiving Party as of the Separation\nDate or (B) the date of disclosure with respect to Confidential Information that is disclosed by the Disclosing Party to the Receiving Party after the\nSeparation Date.\n1.5 DISCLOSING PARTY. “Disclosing Party” means the party owning or disclosing the relevant Confidential Information.\n1.6 HIGHLY CONFIDENTIAL INFORMATION . “Highly Confidential Information” means Confidential Information that is source code for\nproducts that are commercially released or for which substantial steps have been taken to commercialization, and personally identifiable information\nregarding customers and employees.\n1.7 MASTER SEPARATION AGREEMENT. “Master Separation Agreement” means that certain Master Separation Agreement between Palm\nand PalmSource.\n-2-\n1.8 PERSON. “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a\ntrust, a joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n1.9 RECEIVING PARTY. “Receiving Party” means the non-owning party or recipient of the relevant Confidential Information.\n1.10 SEPARATION DATE . “Separation Date” means 12:01 a.m., Pacific Time, December 3, 2001, or such other date as may be fixed by the\nBoard of Directors of Palm.\n1.11 SUBSIDIARY. “Subsidiary” of any Person means a corporation or other organization, whether incorporated or unincorporated, of which\nat least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors\nor others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such\nPerson or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no Person that is not\ndirectly or indirectly wholly-owned by any other Person shall be a Subsidiary of such other Person unless such other Person controls, or has the\nright, power or ability to control, that Person. For purposes of this Agreement, PalmSource shall be deemed not to be a subsidiary of Palm.\n1.12 THIRD PARTY. “Third Party” means a Person other than Palm and its Subsidiaries or PalmSource and its Subsidiaries.\n1.13 TRANSACTION AGREEMENTS . “Transaction Agreements” means the Master Separation Agreement and the Ancillary Agreements\nbetween Palm and PalmSource, but does not include the following agreements between Palm and PalmSource: Software License Agreement and\nElaine Software License Agreement, each effective as of December 3, 2001 and under which PalmSource licenses to Palm certain operating system\nand server software and related products.\nARTICLE 2\nCONFIDENTIALITY\n2.1 CONFIDENTIALITY AND NON -USE OBLIGATIONS . During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, to prevent the\nunauthorized use, dissemination, or publication of the Confidential Information as Receiving Party uses to protect its own confidential information\nof a like nature, (ii) not use such Confidential Information in violation of any use restriction in any Transaction Agreement, and (iii) not disclose\nsuch Confidential Information to any Third Party, except as expressly permitted under this Agreement, in the Transaction Agreements or in any other\nagreements entered into between the parties in writing, without prior written consent of the Disclosing Party.\n-3-\n2.2 DISCLOSURE TO SUBLICENSEES . The Receiving Party has the right to disclose to its sublicensees permitted under a Transaction\nAgreement portions of Confidential Information as reasonably necessary in the exercise of the Receiving Party’s sublicense rights under such\nTransaction Agreement, subject to the sublicensee’s agreement in writing to confidentiality and non-use terms at least as protective of the Disclosing\nParty as the provisions of this Agreement.\n2.3 CONTRACT MANUFACTURERS . The Receiving Party has the right to disclose to its contract manufacturers permitted under any\nTransaction Agreement portions of the Confidential Information as reasonably necessary in the exercise of the Receiving Party’s “have made” rights\nunder any Transaction Agreement, subject to the contract manufacturer ’s agreement in writing to confidentiality and non-use terms at least as\nprotective of the Disclosing Party as the provisions of this Agreement.\n2.4 RESIDUALS. Notwithstanding any other provision of this Agreement, the Receiving Party shall be free, and the Disclosing Party hereby\ngrants to the Receiving Party, except as otherwise provided in this Section 2.4, the right, to use or exploit for any purpose the Residuals resulting\nfrom access to or work with the Confidential Information of the Disclosing Party; provided however that the Receiving Party shall maintain the\nconfidentiality of the Confidential Information as required by this Agreement. “Residuals” means information retained in the unaided memories of\nindividuals who have had access to Confidential Information. The Receiving Party shall have no obligation to pay royalties for any use of Residuals.\nHowever, this Section 2.4 does not grant the Receiving Party any rights under any patents or copyrights of the Disclosing Party.\n2.5 COMPELLED DISCLOSURE . If the Receiving Party or any of its respective Subsidiaries believes that it will be compelled by a court or\nother authority to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party prompt written notice so that the\nDisclosing Party may take steps to oppose such disclosure, and (ii) cooperate with the Disclosing Party in its attempts to oppose such disclosure. If\nthe Receiving Party complies with the above, it shall not be prohibited from complying with such requirement to disclose, but shall take all\nreasonable steps to make such disclosure subject to a suitable protective order or otherwise prevent unrestricted or public disclosure.\n2.6 NO RESTRICTION ON DISCLOSING PARTY. Nothing in this Agreement shall restrict the Disclosing Party from using, disclosing, or\ndisseminating its own Confidential Information in any way.\n2.7 NO RESTRICTION ON REASSIGNMENT. This Agreement shall not restrict reassignment of the Receiving Party’s employees.\n2.8 THIRD PARTY RESTRICTIONS . Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\n-4-\nARTICLE 3\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS,\nWHERE IS” BASIS AND THAT NEITHER PARTY NOR ANY OF ITS SUBSIDIARIES HAS MADE OR WILL MAKE ANY WARRANTY\nWHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF\nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY OR NON-INFRINGEMENT.\nARTICLE 4\nCONFIDENTIALITY OF AGREEMENT\nEach party agrees that the terms and conditions of the Transaction Agreements marked as confidential shall be treated as Confidential\nInformation and that neither party will disclose such terms or conditions to any Third Party without the prior written consent of the other party,\nprovided, however, that each party may disclose such terms and conditions of such agreements marked as confidential:\n(a) as required by any court or other governmental body (subject to Section 2.5);\n(b) as otherwise required by law (subject to Section 2.5);\n(c) in confidence, to legal counsel of the parties, accountants, and other professional advisors;\n(d) in confidence to banks, investors and other financing sources and their advisors;\n(e) in connection with the enforcement of this Agreement or rights under this Agreement; or\n(f) in confidence, in connection with an actual or prospective merger or acquisition or similar transaction.\nARTICLE 5\nTERM AND TERMINATION\n5.1 TERM . This Agreement shall remain in full force and effect unless and until terminated by the mutual written agreement of the parties.\n-5-\n5.2 SURVIVAL . Articles 1, 2 (with respect to Confidential Information acquired or disclosed prior to the date of termination), 3, 4, 5.2, 6, and\n7 shall survive any termination of this Agreement.\nARTICLE 6\nDISPUTE RESOLUTION\n6.1 MEDIATION. If a dispute, controversy or claim (“Dispute”) arises between the parties relating to the interpretation or performance of this\nAgreement or the grounds for the termination hereof, appropriate senior executives (e.g . director or vice president level) of each party who shall\nhave the authority to resolve the matter shall meet to attempt in good faith to negotiate a resolution of the Dispute prior to pursuing other available\nremedies. The initial meeting between the appropriate senior executives shall be referred to herein as the “Dispute Resolution Commencement\nDate.” Discussions and correspondence relating to trying to resolve such Dispute shall be treated as confidential information developed for the\npurpose of settlement and shall be exempt from discovery or production and shall not be admissible. If the senior executives are unable to resolve the\nDispute within thirty (30) days from the Dispute Resolution Commencement Date, and either party wishes to pursue its rights relating to such\nDispute, then the Dispute will be mediated by a mutually acceptable mediator appointed pursuant to the mediation rules of JAMS/Endispute within\nthirty (30) days after written notice by one party to the other demanding non-binding mediation. Neither party may unreasonably withhold consent to\nthe selection of a mediator or the location of the mediation. Both parties will share the costs of the mediation equally, except that each party shall\nbear its own costs and expenses, including attorney’s fees, witness fees, travel expenses, and preparation costs. The parties may also agree to replace\nmediation with some other form of non-binding or binding Alternative Dispute Resolution (“ADR”).\n6.2 ARBITRATION . Any Dispute which the parties cannot resolve through mediation within ninety (90) days of the Dispute Resolution\nCommencement Date, unless otherwise mutually agreed, shall be submitted to final and binding arbitration under the then current Commercial\nArbitration Rules of the American Arbitration Association (“AAA”), by three (3) arbitrators in Santa Clara County, California. Such arbitrators shall\nbe selected by the mutual agreement of the parties or, failing such agreement, shall be selected according to the aforesaid AAA rules. The arbitrators\nwill be instructed to prepare and deliver a written, reasoned opinion stating their decision within thirty (30) days of the completion of the arbitration.\nThe prevailing party in such arbitration shall be entitled to expenses, including costs and reasonable attorneys’ and other professional fees, incurred\nin connection with the arbitration (but excluding any costs and fees associated with prior negotiation or mediation). The decision of the arbitrator\nshall be final and non-appealable and may be enforced in any court of competent jurisdiction. The use of any ADR procedures will not be construed\nunder the doctrine of laches, waiver or estoppel to adversely affect the rights of either party.\n6.3 COURT ACTION . Any Dispute regarding the following is not required to be negotiated, mediated or arbitrated prior to seeking relief from\na court of competent jurisdiction:\n-6-\nbreach of any obligation of confidentiality; infringement, misappropriation, or misuse of any intellectual property right; any other claim where\ninterim relief from the court is sought to prevent serious and irreparable injury to one of the parties or to others. However, the parties to the Dispute\nshall make a good faith effort to negotiate and mediate such Dispute, according to the above procedures, while such court action is pending.\n6.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in writing, the parties will continue to provide service and\nhonor all other commitments under this Agreement and each Ancillary Agreement during the course of dispute resolution pursuant to the provisions\nof this Article 6 with respect to all matters not subject to such dispute, controversy or claim.\n6.5 RESOLUTION BY PALMSOURCE COMMITTEE . Notwithstanding the foregoing, while PalmSource remains a wholly-owned\nsubsidiary (excluding shares issued pursuant to PalmSource equity plans to officers, directors, employees and consultants of PalmSource), if,\npursuant to Section 6.1, the senior executives are unable to resolve the Dispute within thirty (30) days from the Dispute Resolution Commencement\nDate, and either party wishes to pursue its rights relating to such Dispute, then in lieu of mediation or subsequent remedy contemplated by Section\n6.2-6.3, the Dispute will be submitted to the PalmSource Committee for resolution (which committee shall consist of the CEO of Palm, the CEO of\nPalmSource and the Chairman of the Board of Palm, or such other composition as is mutually acceptable to Palm and PalmSource).\nARTICLE 7\nMISCELLANEOUS PROVISIONS\n7.1 EXPORT RESTRICTIONS. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to any\nproscribed country listed in such applicable laws, regulations and rules unless properly authorized.\n7.2 NO IMPLIED LICENSES. Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or\notherwise, under any intellectual property right, other than the rights expressly granted in this Agreement with respect to Confidential Information.\nNeither party is required hereunder to furnish or disclose to the other any technical or other information.\n7.3 INFRINGEMENT SUITS . Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of any\nintellectual property rights by the Receiving Party’s authorized use of the Disclosing Party’s Confidential Information.\n-7-\n7.4 NO OTHER OBLIGATIONS . NEITHER PARTY ASSUMES ANY RESPONSIBILITIES OR OBLIGATIONS WHATSOEVER, OTHER\nTHAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN\nAGREEMENT BETWEEN THE PARTIES.\n7.5 ENTIRE AGREEMENT. This Agreement, the Master Separation Agreement and the other Ancillary Agreements and the Exhibits and\nSchedules referenced or attached hereto and thereto constitute the entire agreement between the parties with respect to the subject matter hereof and\nthereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter\nhereof and thereof. Notwithstanding the foregoing, the parties agree that any agreements entered into between them after the Separation Date for the\nprotection of specific Confidential Information shall supersede the terms of this Agreement with respect to such Confidential Information.\n7.6 GOVERNING LAW. This Agreement shall be construed in accordance with and all Disputes hereunder shall be governed by the laws of\nthe State of California, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods. The\nSuperior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have jurisdiction and venue\nover all Disputes between the parties that are permitted to be brought in a court of law pursuant to Section 6 above.\n7.7 DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in any Exhibit hereto and in the table of contents to this\nAgreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term\nused in any Exhibit but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. When a reference is made in\nthis Agreement to an Article or a Section or an Exhibit, such reference shall be to an Article or Section of, or an Exhibit to, this Agreement unless\notherwise indicated.\n7.8 NOTICES. Notices, offers, requests or other communications required or permitted to be given by either party pursuant to the terms of this\nAgreement shall be given in writing to the respective parties to the following addresses:\niftoPalm:\nPalm, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: General Counsel\nif to PalmSource:\nPalmSource, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: Chief Executive Officer\n-8-\nor to such other address as the party to whom notice is given may have previously furnished to the other in writing as provided herein. Any notice\ninvolving non-performance, termination, or renewal shall be sent by hand delivery, recognized overnight courier or, within the United States, may\nalso be sent via certified mail, return receipt requested. All other notices may also be sent by fax, confirmed by first class mail. All notices shall be\ndeemed to have been given and received on the earlier of actual delivery or three (3) days from the date of postmark.\n7.9 NONASSIGNABILITY. Neither party may, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or\ntransfer this Agreement, without the other party’s prior written consent, and any attempted assignment, transfer or delegation without such prior\nwritten consent shall be voidable at the sole option of such other party. Notwithstanding the foregoing, each party (or its permitted successive\nassignees or transferees hereunder) may assign or transfer this Agreement as a whole without consent to a Person that succeeds to all or substantially\nall of the business or assets of such party as long as such Person agrees to accept all the terms and conditions set forth herein. Without limiting the\nforegoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.\n7.10 SEVERABILITY. If any term or other provision of this Agreement or the Exhibits attached hereto is determined by a court,\nadministrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and\nprovisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions\ncontemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any term or other provision is\ninvalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original\nintent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent\npossible.\n7.11 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of either party hereto in the\nexercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation,\nwarranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right.\nAll rights and remedies existing under this Agreement or the Exhibits attached hereto are cumulative to, and not exclusive of, any rights or remedies\notherwise available.\n7.12 AMENDMENT. No change or amendment will be made to this Agreement or the Exhibits attached hereto except by an instrument in\nwriting signed on behalf of each of the parties to such agreement.\n7.13 COUNTERPARTS. This Agreement, including the Ancillary Agreements and the Exhibits and Schedules hereto and thereto and the other\ndocuments referred to herein or therein, may be executed in counterparts, each of which shall be deemed to be an original but all of which shall\nconstitute one and the same agreement.\n-9-\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Date.\nPALM, INC.\nPALMSOURCE, INC.\nBy:\n/s/ JUDY BRUNER\nBy:\n/s/ DAVID C. NAGEL\nName:\nJudy Bruner\nName:\nDavid Nagel\nTitle:\nChief Financial Officer\nTitle:\nChief Executive Officer\n- 10-	EX-2.28 17 dex228.htm MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 2.28\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nPALM, INC.\nand\nPALMSOURCE, INC.\nEffective as of December 3, 2001\nTABLE OF CONTENTS\nARTICLE 1 DEFINITIONS 1.1\n1.2\n1.3\n1.4\n1.5\n1.6\n1.7\n1.8\n1.9\n1.10\n1.11\n1.12\n1.13\nANCILLARY AGREEMENTS\nBUSINESS SERVICES AGREEMENT\nCONFIDENTIAL INFORMATION\nCONFIDENTIALITY PERIOD\nDISCLOSING PARTY\nHIGHLY CONFIDENTIAL INFORMATION\nMASTER SEPARATION AGREEMENT\nPERSON\nRECEIVING PARTY\nSEPARATION DATE\nSUBSIDIARY\nTHIRD PARTY\nTRANSACTION AGREEMENTS\nARTICLE 2 CONFIDENTIALITY 2.1\n2.2\n2.3\n24\n2.5\n2.6\n2.7\n2.8\nCONFIDENTIALITY AND NON-USE OBLIGATIONS\nDISCLOSURE TO SUBLICENSEES\nCONTRACT MANUFACTURERS\nRESIDUALS\nCOMPELLED DISCLOSURE\nNO RESTRICTION ON DISCLOSING PARTY\nNO RESTRICTION ON REASSIGNMENT\nTHIRD PARTY RESTRICTIONS\nARTICLE 3 WARRANTY DISCLAIMER ARTICLE 4 CONFIDENTIALITY OF AGREEMENT ARTICLE 5 TERM AND TERMINATION 5.1\n5.2\nTERM\nSURVIVAL\nARTICLE 6 DISPUTE RESOLUTION 6.1\n6.2\n6.3\n6.4\n6.5\nMEDIATION\nARBITRATION\nCOURT ACTION\nCONTINUITY OF SERVICE AND PERFORMANCE\nRESOLUTION BY PALMSOURCE COMMITTEE\n-\n]\n&\no\n"\n \nArArArbrbbhrbhrw w W W WwWwWwWNNNNRRRER R\na U\nNN OO D\nTABLE OF CONTENTS\n(Continued)\nARTICLE 7 MISCELLANEOUS PROVISIONS 7.1\n7.2\n7.3\n7.4\n7.5\n7.6\n7.7\n7.8\n7.9\n7.10\n7.11\n7.12\n7.13\nEXPORT RESTRICTIONS\nNO IMPLIED LICENSES\nINFRINGEMENT SUITS\nNO OTHER OBLIGATIONS\nENTIRE AGREEMENT\nGOVERNING LAW\nDESCRIPTIVE HEADINGS\nNOTICES\nNONASSIGNABILITY\nSEVERABILITY\nFAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE\nAMENDMENT\nCOUNTERPARTS\n-ii-\n]\n&\no\n"\n \nO © O© © O 000000 NNIN\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Master Confidential Disclosure Agreement (the “Agreement”) is executed on May 9, 2002 and made effective as of December 3, 2001\n(the “Effective Date”), between Palm, Inc., a Delaware corporation (“Palm”), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054 and PalmSource, Inc., a Delaware corporation (“PalmSource”), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054.\nRECITALS\nWHEREAS, the Board of Directors of Palm has determined that it is in the best interest of Palm and its stockholders to separate Palm’s\nexisting businesses into two independent businesses and have the current business of the Palm platform solutions group conducted through a wholly-\nowned subsidiary;\nWHEREAS, as part of the foregoing, Palm and have entered into a Master Separation Agreement (as defined below), which provides for,\namong other things, the execution and delivery of certain other agreements in order to facilitate and provide for the foregoing; and\nWHEREAS, also as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their\nConfidential Information (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE 1\nDEFINITIONS\nFor the purpose of this Agreement the following capitalized terms are defined in this Article 1 and shall have the meaning specified herein:\n1.1 ANCILLARY AGREEMENTS. “Ancillary Agreements” means the items and agreements listed in Section 2.1 of the Master Separation\nAgreement and all agreements and documents contemplated by such agreements.\n1.2 BUSINESS SERVICES AGREEMENT. “Business Services Agreement” means that certain Business Services Agreement between Palm\nand PalmSource.\n1.3 CONFIDENTIAL INFORMATION\n(a) “Confidential Information” means business information, technical data, know-how and other information which is not otherwise in\nthe public domain and of which the owner actively undertakes to restrict or control the disclosure to Third Parties in a manner reasonably\nintended to maintain its confidentiality, and which (i) is the subject of any Transaction Agreement and known to or in the possession of the\nReceiving Party as of the Separation Date or (ii) is disclosed to the Receiving Party pursuant to any Transaction Agreement for a period of one (1)\nyear after the Effective Date or such term during which services are provided under the Business Services Agreement, whichever is longer.\nConfidential Information may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned by\ninspection of computer programming code, equipment or facilities.\n(b) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party’s Confidential Information for purposes herein.\n(c) Notwithstanding the foregoing provisions of this Section 1.2, Confidential Information shall exclude information that: (i) was in the\nReceiving Party’s possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing Party and other than\nthrough the prior relationship of the Disclosing Party and the Receiving Party before the Separation Date; (ii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party; (iii) is rightfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (iv) is disclosed by the Disclosing Party to a Third Party without a duty of confidentiality on the Third Party; (v) is independently\ndeveloped by the Receiving Party; or (vi) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval.\n1.4 CONFIDENTIALITY PERIOD. “Confidentiality Period” means, (i) with respect to Confidential Information that is not Highly\nConfidential Information, five (5) years, and (ii) with respect to Highly Confidential Information, in perpetuity, after either (A) the Separation Date\nwith respect to Confidential Information of the Disclosing Party that is known to or in the possession of the Receiving Party as of the Separation\nDate or (B) the date of disclosure with respect to Confidential Information that is disclosed by the Disclosing Party to the Receiving Party after the\nSeparation Date.\n1.5 DISCLOSING PARTY. “Disclosing Party” means the party owning or disclosing the relevant Confidential Information.\n1.6 HIGHLY CONFIDENTIAL INFORMATION. “Highly Confidential Information” means Confidential Information that is source code for\nproducts that are commercially released or for which substantial steps have been taken to commercialization, and personally identifiable information\nregarding customers and employees.\n1.7 MASTER SEPARATION AGREEMENT. “Master Separation Agreement” means that certain Master Separation Agreement between Palm\nand PalmSource.\n-\n1.8 PERSON. “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a\ntrust, a joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n1.9 RECEIVING PARTY. “Receiving Party” means the non-owning party or recipient of the relevant Confidential Information.\n1.10 SEPARATION DATE. “Separation Date” means 12:01 a.m., Pacific Time, December 3, 2001, or such other date as may be fixed by the\nBoard of Directors of Palm.\n1.11 SUBSIDIARY. “Subsidiary” of any Person means a corporation or other organization, whether incorporated or unincorporated, of which\nat least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors\nor others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such\nPerson or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no Person that is not\ndirectly or indirectly wholly-owned by any other Person shall be a Subsidiary of such other Person unless such other Person controls, or has the\nright, power or ability to control, that Person. For purposes of this Agreement, PalmSource shall be deemed not to be a subsidiary of Palm.\n1.12 THIRD PARTY. “Third Party” means a Person other than Palm and its Subsidiaries or PalmSource and its Subsidiaries.\n1.13 TRANSACTION AGREEMENTS. “Transaction Agreements” means the Master Separation Agreement and the Ancillary Agreements\nbetween Palm and PalmSource, but does not include the following agreements between Palm and PalmSource: Software License Agreement and\nElaine Software License Agreement, each effective as of December 3, 2001 and under which PalmSource licenses to Palm certain operating system\nand server software and related products.\nARTICLE 2\nCONFIDENTIALITY\n2.1 CONFIDENTIALITY AND NON-USE OBLIGATIONS. During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, to prevent the\nunauthorized use, dissemination, or publication of the Confidential Information as Receiving Party uses to protect its own confidential information\nof a like nature, (ii) not use such Confidential Information in violation of any use restriction in any Transaction Agreement, and (iii) not disclose\nsuch Confidential Information to any Third Party, except as expressly permitted under this Agreement, in the Transaction Agreements or in any other\nagreements entered into between the parties in writing, without prior written consent of the Disclosing Party.\n_3-\n2.2 DISCLOSURE TO SUBLICENSEES . The Receiving Party has the right to disclose to its sublicensees permitted under a Transaction\nAgreement portions of Confidential Information as reasonably necessary in the exercise of the Receiving Party’s sublicense rights under such\nTransaction Agreement, subject to the sublicensee’s agreement in writing to confidentiality and non-use terms at least as protective of the Disclosing\nParty as the provisions of this Agreement.\n2.3 CONTRACT MANUFACTURERS . The Receiving Party has the right to disclose to its contract manufacturers permitted under any\nTransaction Agreement portions of the Confidential Information as reasonably necessary in the exercise of the Receiving Party’s “have made” rights\nunder any Transaction Agreement, subject to the contract manufacturer’s agreement in writing to confidentiality and non-use terms at least as\nprotective of the Disclosing Party as the provisions of this Agreement.\n2.4 RESIDUALS. Notwithstanding any other provision of this Agreement, the Receiving Party shall be free, and the Disclosing Party hereby\ngrants to the Receiving Party, except as otherwise provided in this Section 2.4, the right, to use or exploit for any purpose the Residuals resulting\nfrom access to or work with the Confidential Information of the Disclosing Party; provided however that the Receiving Party shall maintain the\nconfidentiality of the Confidential Information as required by this Agreement. “Residuals” means information retained in the unaided memories of\nindividuals who have had access to Confidential Information. The Receiving Party shall have no obligation to pay royalties for any use of Residuals.\nHowever, this Section 2.4 does not grant the Receiving Party any rights under any patents or copyrights of the Disclosing Party.\n2.5 COMPELLED DISCLOSURE. If the Receiving Party or any of its respective Subsidiaries believes that it will be compelled by a court or\nother authority to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party prompt written notice so that the\nDisclosing Party may take steps to oppose such disclosure, and (ii) cooperate with the Disclosing Party in its attempts to oppose such disclosure. If\nthe Receiving Party complies with the above, it shall not be prohibited from complying with such requirement to disclose, but shall take all\nreasonable steps to make such disclosure subject to a suitable protective order or otherwise prevent unrestricted or public disclosure.\n2.6 NO RESTRICTION ON DISCLOSING PARTY. Nothing in this Agreement shall restrict the Disclosing Party from using, disclosing, or\ndisseminating its own Confidential Information in any way.\n2.7 NO RESTRICTION ON REASSIGNMENT. This Agreement shall not restrict reassignment of the Receiving Party’s employees.\n2.8 THIRD PARTY RESTRICTIONS. Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\n4-\nARTICLE 3\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS,\nWHERE IS” BASIS AND THAT NEITHER PARTY NOR ANY OF ITS SUBSIDIARIES HAS MADE OR WILL MAKE ANY WARRANTY\nWHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF\nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY OR NON-INFRINGEMENT.\nARTICLE 4\nCONFIDENTIALITY OF AGREEMENT\nEach party agrees that the terms and conditions of the Transaction Agreements marked as confidential shall be treated as Confidential\nInformation and that neither party will disclose such terms or conditions to any Third Party without the prior written consent of the other party,\nprovided, however, that each party may disclose such terms and conditions of such agreements marked as confidential:\n(a) as required by any court or other governmental body (subject to Section 2.5);\n(b) as otherwise required by law (subject to Section 2.5);\n(c) in confidence, to legal counsel of the parties, accountants, and other professional advisors;\n(d) in confidence to banks, investors and other financing sources and their advisors;\n(e) in connection with the enforcement of this Agreement or rights under this Agreement; or\n(f) in confidence, in connection with an actual or prospective merger or acquisition or similar transaction.\nARTICLE 5\nTERM AND TERMINATION\n5.1 TERM. This Agreement shall remain in full force and effect unless and until terminated by the mutual written agreement of the parties.\n_5-\n5.2 SURVIVAL . Articles 1, 2 (with respect to Confidential Information acquired or disclosed prior to the date of termination), 3, 4, 5.2, 6, and\n7 shall survive any termination of this Agreement.\nARTICLE 6\nDISPUTE RESOLUTION\n6.1 MEDIATION. If a dispute, controversy or claim (“Dispute”) arises between the parties relating to the interpretation or performance of this\nAgreement or the grounds for the termination hereof, appropriate senior executives (e.g. director or vice president level) of each party who shall\nhave the authority to resolve the matter shall meet to attempt in good faith to negotiate a resolution of the Dispute prior to pursuing other available\nremedies. The initial meeting between the appropriate senior executives shall be referred to herein as the “Dispute Resolution Commencement\nDate.” Discussions and correspondence relating to trying to resolve such Dispute shall be treated as confidential information developed for the\npurpose of settlement and shall be exempt from discovery or production and shall not be admissible. If the senior executives are unable to resolve the\nDispute within thirty (30) days from the Dispute Resolution Commencement Date, and either party wishes to pursue its rights relating to such\nDispute, then the Dispute will be mediated by a mutually acceptable mediator appointed pursuant to the mediation rules of JAMS/Endispute within\nthirty (30) days after written notice by one party to the other demanding non-binding mediation. Neither party may unreasonably withhold consent to\nthe selection of a mediator or the location of the mediation. Both parties will share the costs of the mediation equally, except that each party shall\nbear its own costs and expenses, including attorney’s fees, witness fees, travel expenses, and preparation costs. The parties may also agree to replace\nmediation with some other form of non-binding or binding Alternative Dispute Resolution (“ADR?”).\n6.2 ARBITRATION. Any Dispute which the parties cannot resolve through mediation within ninety (90) days of the Dispute Resolution\nCommencement Date, unless otherwise mutually agreed, shall be submitted to final and binding arbitration under the then current Commercial\nArbitration Rules of the American Arbitration Association (“AAA”), by three (3) arbitrators in Santa Clara County, California. Such arbitrators shall\nbe selected by the mutual agreement of the parties or, failing such agreement, shall be selected according to the aforesaid AAA rules. The arbitrators\nwill be instructed to prepare and deliver a written, reasoned opinion stating their decision within thirty (30) days of the completion of the arbitration.\nThe prevailing party in such arbitration shall be entitled to expenses, including costs and reasonable attorneys’ and other professional fees, incurred\nin connection with the arbitration (but excluding any costs and fees associated with prior negotiation or mediation). The decision of the arbitrator\nshall be final and non-appealable and may be enforced in any court of competent jurisdiction. The use of any ADR procedures will not be construed\nunder the doctrine of laches, waiver or estoppel to adversely affect the rights of either party.\n6.3 COURT ACTION. Any Dispute regarding the following is not required to be negotiated, mediated or arbitrated prior to seeking relief from\na court of competent jurisdiction:\n-6-\nbreach of any obligation of confidentiality; infringement, misappropriation, or misuse of any intellectual property right; any other claim where\ninterim relief from the court is sought to prevent serious and irreparable injury to one of the parties or to others. However, the parties to the Dispute\nshall make a good faith effort to negotiate and mediate such Dispute, according to the above procedures, while such court action is pending.\n6.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in writing, the parties will continue to provide service and\nhonor all other commitments under this Agreement and each Ancillary Agreement during the course of dispute resolution pursuant to the provisions\nof this Article 6 with respect to all matters not subject to such dispute, controversy or claim.\n6.5 RESOLUTION BY PALMSOURCE COMMITTEE. Notwithstanding the foregoing, while PalmSource remains a wholly-owned\nsubsidiary (excluding shares issued pursuant to PalmSource equity plans to officers, directors, employees and consultants of PalmSource), if,\npursuant to Section 6.1, the senior executives are unable to resolve the Dispute within thirty (30) days from the Dispute Resolution Commencement\nDate, and either party wishes to pursue its rights relating to such Dispute, then in lieu of mediation or subsequent remedy contemplated by Section\n6.2-6.3, the Dispute will be submitted to the PalmSource Committee for resolution (which committee shall consist of the CEO of Palm, the CEO of\nPalmSource and the Chairman of the Board of Palm, or such other composition as is mutually acceptable to Palm and PalmSource).\nARTICLE 7\nMISCELLANEOUS PROVISIONS\n7.1 EXPORT RESTRICTIONS. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to any\nproscribed country listed in such applicable laws, regulations and rules unless properly authorized.\n7.2 NO IMPLIED LICENSES. Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or\notherwise, under any intellectual property right, other than the rights expressly granted in this Agreement with respect to Confidential Information.\nNeither party is required hereunder to furnish or disclose to the other any technical or other information.\n7.3 INFRINGEMENT SUITS. Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of any\nintellectual property rights by the Receiving Party’s authorized use of the Disclosing Party’s Confidential Information.\n_7-\n7.4 NO OTHER OBLIGATIONS. NEITHER PARTY ASSUMES ANY RESPONSIBILITIES OR OBLIGATIONS WHATSOEVER, OTHER\nTHAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN\nAGREEMENT BETWEEN THE PARTIES.\n7.5 ENTIRE AGREEMENT. This Agreement, the Master Separation Agreement and the other Ancillary Agreements and the Exhibits and\nSchedules referenced or attached hereto and thereto constitute the entire agreement between the parties with respect to the subject matter hereof and\nthereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter\nhereof and thereof. Notwithstanding the foregoing, the parties agree that any agreements entered into between them after the Separation Date for the\nprotection of specific Confidential Information shall supersede the terms of this Agreement with respect to such Confidential Information.\n7.6 GOVERNING LAW. This Agreement shall be construed in accordance with and all Disputes hereunder shall be governed by the laws of\nthe State of California, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods. The\nSuperior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have jurisdiction and venue\nover all Disputes between the parties that are permitted to be brought in a court of law pursuant to Section 6 above.\n7.7 DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in any Exhibit hereto and in the table of contents to this\nAgreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term\nused in any Exhibit but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. When a reference is made in\nthis Agreement to an Article or a Section or an Exhibit, such reference shall be to an Article or Section of, or an Exhibit to, this Agreement unless\notherwise indicated.\n7.8 NOTICES. Notices, offers, requests or other communications required or permitted to be given by either party pursuant to the terms of this\nAgreement shall be given in writing to the respective parties to the following addresses:\nif to Palm :\nPalm, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: General Counsel\nif to PalmSource:\nPalmSource, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: Chief Executive Officer\nor to such other address as the party to whom notice is given may have previously furnished to the other in writing as provided herein. Any notice\ninvolving non-performance, termination, or renewal shall be sent by hand delivery, recognized overnight courier or, within the United States, may\nalso be sent via certified mail, return receipt requested. All other notices may also be sent by fax, confirmed by first class mail. All notices shall be\ndeemed to have been given and received on the earlier of actual delivery or three (3) days from the date of postmark.\n7.9 NONASSIGNABILITY. Neither party may, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or\ntransfer this Agreement, without the other party’s prior written consent, and any attempted assignment, transfer or delegation without such prior\nwritten consent shall be voidable at the sole option of such other party. Notwithstanding the foregoing, each party (or its permitted successive\nassignees or transferees hereunder) may assign or transfer this Agreement as a whole without consent to a Person that succeeds to all or substantially\nall of the business or assets of such party as long as such Person agrees to accept all the terms and conditions set forth herein. Without limiting the\nforegoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.\n7.10 SEVERABILITY. If any term or other provision of this Agreement or the Exhibits attached hereto is determined by a court,\nadministrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and\nprovisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions\ncontemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any term or other provision is\ninvalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original\nintent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent\npossible.\n7.11 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of either party hereto in the\nexercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation,\nwarranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right.\nAll rights and remedies existing under this Agreement or the Exhibits attached hereto are cumulative to, and not exclusive of, any rights or remedies\notherwise available.\n7.12 AMENDMENT. No change or amendment will be made to this Agreement or the Exhibits attached hereto except by an instrument in\nwriting signed on behalf of each of the parties to such agreement.\n7.13 COUNTERPARTS. This Agreement, including the Ancillary Agreements and the Exhibits and Schedules hereto and thereto and the other\ndocuments referred to herein or therein, may be executed in counterparts, each of which shall be deemed to be an original but all of which shall\nconstitute one and the same agreement.\n9.\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Date.\nPALM, INC. PALMSOURCE, INC.\nBy: /s/  JUDY BRUNER By /s/  DAVID C. NAGEL\nName: Judy Bruner Name: David Nagel\nTitle: Chief Financial Officer Title: Chief Executive Officer\n-10-	EX-2.28 17 dex228.htm MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 2.28\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nPALM, INC.\nand\nPALMSOURCE, INC.\nEffective as of December 3, 2001\nTABLE OF CONTENTS\nPage\nARTICLE 1 DEFINITIONS\n1\n1.1\nANCILLARY AGREEMENTS\n1\n1.2\nBUSINESS SERVICES AGREEMENT\n1\n1.3\nCONFIDENTIAL INFORMATION\n1\n1.4\nCONFIDENTIALITY PERIOD\n2\n1.5\nDISCLOSING PARTY\n2\n1.6\nHIGHLY CONFIDENTIAL INFORMATION\n2\n1.7\nMASTER SEPARATION AGREEMENT\n2\n1.8\nPERSON\n3\n1.9\nRECEIVING PARTY\n3\n1.10\nSEPARATION DATE\n3\n1.11\nSUBSIDIARY\n3\n1.12\nTHIRD PARTY\n3\n1.13\nTRANSACTION AGREEMENTS\n3\nARTICLE 2 CONFIDENTIALITY\n3\n2.1\nCONFIDENTIALITY AND NON-USE OBLIGATIONS\n3\n2.2\nDISCLOSURE TO SUBLICENSEES\n4\n2.3\nCONTRACT MANUFACTURERS\n4\n2.4\nRESIDUALS\n4\n2.5\nCOMPELLED DISCLOSURE\n4\n2.6\nNO RESTRICTION ON DISCLOSING PARTY\n4\n2.7\nNO RESTRICTION ON REASSIGNMENT\n4\n2.8\nTHIRD PARTY RESTRICTIONS\n4\nARTICLE 3 WARRANTY DISCLAIMER\n5\nARTICLE 4 CONFIDENTIALITY OF AGREEMENT\n5\nARTICLE 5 TERM AND TERMINATION\n5\n5.1\nTERM\n5\n5.2\nSURVIVAL\n6\nARTICLE 6 DISPUTE RESOLUTION\n6\n6.1\nMEDIATION\n6\n6.2\nARBITRATION\n6\n6.3\nCOURT ACTION\n6\n6.4\nCONTINUITY OF SERVICE AND PERFORMANCE\n7\n6.5\nRESOLUTION BY PALMSOURCE COMMITTEE\n7\n-i-\nTABLE OF CONTENTS\n(Continued)\nPage\nARTICLE 7 MISCELLANEOUS PROVISIONS\n7\n7.1\nEXPORT RESTRICTIONS\n7\n7.2\nNO IMPLIED LICENSES\n7\n7.3\nINFRINGEMENT SUITS\n7\n7.4\nNO OTHER OBLIGATIONS\n8\n7.5\nENTIRE AGREEMENT\n8\n7.6\nGOVERNING LAW\n8\n7.7\nDESCRIPTIVE HEADINGS\n8\n7.8\nNOTICES\n8\n7.9\nNONASSIGNABILITY\n9\n7.10\nSEVERABILITY\n9\n7.11\nFAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE\n9\n7.12\nAMENDMENT\n9\n7.13\nCOUNTERPARTS\n9\n-ii-\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Master Confidential Disclosure Agreement (the "Agreement") is executed on May 9, 2002 and made effective as of December 3, 2001\n(the "Effective Date"), between Palm, Inc., a Delaware corporation ("Palm"), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054 and PalmSource, Inc., a Delaware corporation ("PalmSource"), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054.\nRECITALS\nWHEREAS, the Board of Directors of Palm has determined that it is in the best interest of Palm and its stockholders to separate Palm's\nexisting businesses into two independent businesses and have the current business of the Palm platform solutions group conducted through a wholly-\nowned subsidiary;\nWHEREAS, as part of the foregoing, Palm and have entered into a Master Separation Agreement (as defined below), which provides for,\namong other things, the execution and delivery of certain other agreements in order to facilitate and provide for the foregoing; and\nWHEREAS, also as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their\nConfidential Information (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE 1\nDEFINITIONS\nFor the purpose of this Agreement the following capitalized terms are defined in this Article 1 and shall have the meaning specified herein:\n1.1 ANCILLARY AGREEMENTS. "Ancillary Agreements" means the items and agreements listed in Section 2.1 of the Master Separation\nAgreement and all agreements and documents contemplated by such agreements.\n1.2 BUSINESS SERVICES AGREEMENT. "Business Services Agreement" means that certain Business Services Agreement between Palm\nand PalmSource.\n1.3 CONFIDENTIAL INFORMATION\n(a) "Confidential Information" means business information, technical data, know-how and other information which is not otherwise in\nthe public domain and of which the owner actively undertakes to restrict or control the disclosure to Third Parties in a manner reasonably\nintended to maintain its confidentiality, and which (i) is the subject of any Transaction Agreement and known to or in the possession of the\nReceiving Party as of the Separation Date or (ii) is disclosed to the Receiving Party pursuant to any Transaction Agreement for a period of one (1)\nyear after the Effective Date or such term during which services are provided under the Business Services Agreement, whichever is longer.\nConfidential Information may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned\nby\ninspection of computer programming code, equipment or facilities.\n(b) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party's Confidential Information for purposes herein.\n(c) Notwithstanding the foregoing provisions of this Section 1.2, Confidential Information shall exclude information that: (i) was in the\nReceiving Party's possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing Party and other than\nthrough the prior relationship of the Disclosing Party and the Receiving Party before the Separation Date; (ii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party; (iii) is rightfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (iv) is disclosed by the Disclosing Party to a Third Party without a duty of confidentiality on the Third Party; (v) is independently\ndeveloped by the Receiving Party; or (vi) is disclosed by the Receiving Party with the Disclosing Party's prior written approval.\n1.4 CONFIDENTIALITY PERIOD. "Confidentiality Period" means, (i) with respect to Confidential Information that is not Highly\nConfidential Information, five (5) years, and (ii) with respect to Highly Confidential Information, in perpetuity, after either (A) the Separation Date\nwith respect to Confidential Information of the Disclosing Party that is known to or in the possession of the Receiving Party as of the Separation\nDate or (B) the date of disclosure with respect to Confidential Information that is disclosed by the Disclosing Party to the Receiving Party after the\nSeparation Date.\n1.5 DISCLOSING PARTY. "Disclosing Party" means the party owning or disclosing the relevant Confidential Information.\n1.6 HIGHLY CONFIDENTIAL INFORMATION. "Highly Confidential Information" means Confidential Information that is source code for\nproducts that are commercially released or for which substantial steps have been taken to commercialization, and personally identifiable information\nregarding customers and employees.\n1.7 MASTER SEPARATION AGREEMENT. "Master Separation Agreement" means that certain Master Separation Agreement between Palm\nand PalmSource.\n-2-\n1.8 PERSON. "Person" means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a\ntrust, a joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n1.9 RECEIVING PARTY. "Receiving Party" means the non-owning party or recipient of the relevant Confidentia Information.\n1.10 SEPARATION DATE. "Separation Date" means 12:01 a.m., Pacific Time, December 3, 2001, or such other date as may be fixed by the\nBoard of Directors of Palm.\n1.11 SUBSIDIARY. "Subsidiary" of any Person means a corporation or other organization, whether incorporated or unincorporated, of which\nat\nleast a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors\nor others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such\nPerson or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no Person that is not\ndirectly or indirectly wholly-owned by any other Person shall be a Subsidiary of such other Person unless such other Person controls, or has the\nright, power or ability to control, that Person. For purposes of this Agreement, PalmSource shall be deemed not to be a subsidiary of Palm.\n1.12 THIRD PARTY. "Third Party" means a Person other than Palm and its Subsidiaries or PalmSource and its Subsidiaries.\n1.13 TRANSACTION AGREEMENTS. "Transaction Agreements" means the Master Separation Agreement and the Ancillary Agreements\nbetween Palm and PalmSource, but does not include the following agreements between Palm and PalmSource: Software License Agreement and\nElaine Software License Agreement, each effective as of December 3, 2001 and under which PalmSource licenses to Palm certain operating system\nand server software and related products.\nARTICLE 2\nCONFIDENTIALITY\n2.1 CONFIDENTIALITY AND NON-USE OBLIGATIONS. During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, to prevent the\nunauthorized use, dissemination, or publication of the Confidential Information as Receiving Party uses to protect its own confidential information\nof a like nature, (ii) not use such Confidential Information in violation of any use restriction in any Transaction Agreement, and (iii) not disclose\nsuch Confidential Information to any Third Party, except as expressly permitted under this Agreement, in the Transaction Agreements or in any other\nagreements entered into between the parties in writing, without prior written consent of the Disclosing Party.\n-3-\n2.2 DISCLOSURE TO SUBLICENSEES The Receiving Party has the right to disclose to its sublicensees permitted under a Transaction\nAgreement portions of Confidential Information as reasonably necessary in the exercise of the Receiving Party's sublicense rights under such\nTransaction Agreement, subject to the sublicensee's agreement in writing to confidentiality and non-use terms at least as protective of the Disclosing\nParty as the provisions of this Agreement.\n2.3 CONTRACT MANUFACTURERS The Receiving Party has the right to disclose to its contract manufacturers permitted under any\nTransaction Agreement portions of the Confidential Information as reasonably necessary in the exercise of the Receiving Party's "have made" rights\nunder any Transaction Agreement, subject to the contract manufacturer's agreement in writing to confidentiality and non-use terms at least\nas\nprotective of the Disclosing Party as the provisions of this Agreement.\n2.4 RESIDUALS. Notwithstanding any other provision of this Agreement, the Receiving Party shall be free, and the Disclosing Party hereby\ngrants to the Receiving Party, except as otherwise provided in this Section 2.4, the right, to use or exploit for any purpose the Residuals resulting\nfrom access to or work with the Confidential Information of the Disclosing Party; provided however that the Receiving Party shall maintain the\nconfidentiality of the Confidential Information as required by this Agreement. "Residuals" means information retained in the unaided memories\nof\nindividuals who have had access to Confidential Information. The Receiving Party shall have no obligation to pay royalties for any use of Residuals.\nHowever, this Section 2.4 does not grant the Receiving Party any rights under any patents or copyrights of the Disclosing Party.\n2.5 COMPELLED DISCLOSURE. If the Receiving Party or any of its respective Subsidiaries believes that it will be compelled by a court or\nother authority to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party prompt written notice so that the\nDisclosing Party may take steps to oppose such disclosure, and (ii) cooperate with the Disclosing Party in its attempts to oppose such disclosure.\nIf\nthe Receiving Party complies with the above, it shall not be prohibited from complying with such requirement to disclose, but shall take all\nreasonable steps to make such disclosure subject to a suitable protective order or otherwise prevent unrestricted or public disclosure.\n2.6 NO RESTRICTION ON DISCLOSING PARTY. Nothing in this Agreement shall restrict the Disclosing Party from using, disclosing, or\ndisseminating its own Confidential Information in any way.\n2.7 NO RESTRICTION ON REASSIGNMENT. This Agreement shall not restrict reassignment of the Receiving Party's employees.\n2.8 THIRD PARTY RESTRICTIONS. Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\n-4-\nARTICLE 3\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS IS,\nWHERE IS" BASIS AND THAT NEITHER PARTY NOR ANY OF ITS SUBSIDIARIES HAS MADE OR WILL MAKE ANY WARRANTY\nWHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF\nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY OR NON-INFRINGEMENT.\nARTICLE 4\nCONFIDENTIALITY OF AGREEMENT\nEach party agrees that the terms and conditions of the Transaction Agreements marked as confidential shall be treated as Confidential\nInformation and that neither party will disclose such terms or conditions to any Third Party without the prior written consent of the other party,\nprovided, however, that each party may disclose such terms and conditions of such agreements marked as confidential:\n(a) as required by any court or other governmental body (subject to Section 2.5);\n(b) as otherwise required by law (subject to Section 2.5);\n(c) in confidence, to legal counsel of the parties, accountants, and other professional advisors;\n(d) in confidence to banks, investors and other financing sources and their advisors;\n(e) in connection with the enforcement of this Agreement or rights under this Agreement; or\n(f) in confidence, in connection with an actual or prospective merger or acquisition or similar transaction.\nARTICLE 5\nTERM AND TERMINATION\n5.1 TERM. This Agreement shall remain in full force and effect unless and until terminated by the mutual written agreement of the parties.\n-5-\n5.2 SURVIVAL Articles 1, 2 (with respect to Confidential Information acquired or disclosed prior to the date of termination), 3, 4, 5.2, 6, and\n7 shall survive any termination of this Agreement.\nARTICLE 6\nDISPUTE RESOLUTION\n6.1 MEDIATION. If a dispute, controversy or claim ("Dispute") arises between the parties relating to the interpretation or performance of this\nAgreement or the grounds for the termination hereof, appropriate senior executives (e.g. director or vice president level) of each party who shall\nhave the authority to resolve the matter shall meet to attempt in good faith to negotiate a resolution of the Dispute prior to pursuing other available\nremedies. The initial meeting between the appropriate senior executives shall be referred to herein as the "Dispute Resolution Commencement\nDate." Discussions and correspondence relating to trying to resolve such Dispute shall be treated as confidential information developed for the\npurpose of settlement and shall be exempt from discovery or production and shall not be admissible. If the senior executives are unable to resolve the\nDispute within thirty (30) days from the Dispute Resolution Commencement Date, and either party wishes to pursue its rights relating to such\nDispute, then the Dispute will be mediated by a mutually acceptable mediator appointed pursuant to the mediation rules of JAMS/Endispute within\nthirty (30) days after written notice by one party to the other demanding non-binding mediation. Neither party may unreasonably withhold consent\nto\nthe selection of a mediator or the location of the mediation. Both parties will share the costs of the mediation equally, except that each party shall\nbear its own costs and expenses, including attorney's fees, witness fees, travel expenses, and preparation costs. The parties may also agree to replace\nmediation with some other form of non-binding or binding Alternative Dispute Resolution ("ADR").\n6.2 ARBITRATION. Any Dispute which the parties cannot resolve through mediation within ninety (90) days of the Dispute Resolution\nCommencement Date, unless otherwise mutually agreed, shall be submitted to final and binding arbitration under the then current Commercial\nArbitration Rules of the American Arbitration Association ("AAA"), by three (3) arbitrators in Santa Clara County, California. Such arbitrators shall\nbe selected by the mutual agreement of the parties or, failing such agreement, shall be selected according to the aforesaid AAA rules. The arbitrators\nwill be instructed to prepare and deliver a written, reasoned opinion stating their decision within thirty (30) days of the completion of the arbitration.\nThe prevailing party in such arbitration shall be entitled to expenses, including costs and reasonable attorneys' and other professional fees, incurred\nin connection with the arbitration (but excluding any costs and fees associated with prior negotiation or mediation). The decision of the arbitrator\nshall be final and non-appealable and may be enforced in any court of competent jurisdiction. The use of any ADR procedures will not be construed\nunder the doctrine of laches, waiver or estoppel to adversely affect the rights of either party.\n6.3 COURT ACTION. Any Dispute regarding the following is not required to be negotiated, mediated or arbitrated prior to seeking relief from\na court of competent jurisdiction:\n-6-\nbreach of any obligation of confidentiality; infringement, misappropriation, or misuse of any intellectua property right; any other claim where\ninterim relief from the court is sought to prevent serious and irreparable injury to one of the parties or to others. However, the parties to the Dispute\nshall make a good faith effort to negotiate and mediate such Dispute, according to the above procedures, while such court action is pending.\n6.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in writing, the parties will continue to provide service and\nhonor all other commitments under this Agreement and each Ancillary Agreement during the course of dispute resolution pursuant to the provisions\nof this Article 6 with respect to all matters not subject to such dispute, controversy or claim.\n6.5 RESOLUTION BY PALMSOURCE COMMITTEE. Notwithstanding the foregoing, while PalmSource remains a wholly-owned\nsubsidiary (excluding shares issued pursuant to PalmSource equity plans to officers, directors, employees and consultants of PalmSource),\nif,\npursuant to Section 6.1, the senior executives are unable to resolve the Dispute within thirty (30) days from the Dispute Resolution Commencement\nDate, and either party wishes to pursue its rights relating to such Dispute, then in lieu of mediation or subsequent remedy contemplated by Section\n6.2-6.3, the Dispute will be submitted to the PalmSource Committee for resolution (which committee shall consist of the CEO of Palm, the CEO of\nPalmSource and the Chairman of the Board of Palm, or such other composition as is mutually acceptable to Palm and PalmSource).\nARTICLE 7\nMISCELLANEOUS PROVISIONS\n7.1 EXPORT RESTRICTIONS. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to any\nproscribed country listed in such applicable laws, regulations and rules unless properly authorized.\n7.2 NO IMPLIED LICENSES. Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or\notherwise, under any intellectual property right, other than the rights expressly granted in this Agreement with respect to Confidential Information\nNeither party is required hereunder to furnish or disclose to the other any technical or other information.\n7.3 INFRINGEMENT SUITS. Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of any\nintellectual property rights by the Receiving Party's authorized use of the Disclosing Party's Confidential Information.\n-7-\n7.4 NO OTHER OBLIGATIONS. NEITHER PARTY ASSUMES ANY RESPONSIBILITIES OR OBLIGATIONS WHATSOEVER, OTHER\nTHAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN\nAGREEMENT BETWEEN THE PARTIES.\n7.5 ENTIRE AGREEMENT. This Agreement, the Master Separation Agreement and the other Ancillary Agreements and the Exhibits and\nSchedules referenced or attached hereto and thereto constitute the entire agreement between the parties with respect to the subject matter hereof and\nthereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter\nhereof and thereof. Notwithstanding the foregoing, the parties agree that any agreements entered into between them after the Separation Date for the\nprotection of specific Confidential Information shall supersede the terms of this Agreement with respect to such Confidential Information.\n7.6 GOVERNING LAW. This Agreement shall be construed in accordance with and all Disputes hereunder shall be governed by the laws of\nthe\nState of California, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods. The\nSuperior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have jurisdiction and venue\nover all Disputes between the parties that are permitted to be brought in a court of law pursuant to Section 6 above.\n7.7 DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in any Exhibit hereto and in the table of contents to this\nAgreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term\nused in any Exhibit but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. When a reference is made\nin\nthis Agreement to an Article or a Section or an Exhibit, such reference shall be to an Article or Section of, or an Exhibit to, this Agreement unless\notherwise indicated.\n7.8 NOTICES. Notices, offers, requests or other communications required or permitted to be given by either party pursuant to the terms of this\nAgreement shall be given in writing to the respective parties to the following addresses:\nif to Palm\nPalm, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: General Counsel\nif to PalmSource:\nPalmSource, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: Chief Executive Officer\n-8-\nor to such other address as the party to whom notice is given may have previously furnished to the other in writing as provided herein. Any notice\ninvolving non-performance, termination, or renewal shall be sent by hand delivery, recognized overnight courier or, within the United States, may\nalso be sent via certified mail, return receipt requested. All other notices may also be sent by fax, confirmed by first class mail. All notices shall be\ndeemed to have been given and received on the earlier of actual delivery or three (3) days from the date of postmark.\n7.9 NONASSIGNABILITY. Neither party may, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or\ntransfer this Agreement, without the other party's prior written consent, and any attempted assignment, transfer or delegation without such prior\nwritten consent shall be voidable at the sole option of such other party. Notwithstanding the foregoing, each party (or its permitted successive\nassignees or transferees hereunder) may assign or transfer this Agreement as a whole without consent to a Person that succeeds to all or substantially\nall of the business or assets of such party as long as such Person agrees to accept all the terms and conditions set forth herein. Without limiting the\nforegoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.\n7.10 SEVERABILITY. If any term or other provision of this Agreement or the Exhibits attached hereto is determined by a court,\nadministrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions\nand\nprovisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions\ncontemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any term or other provision is\ninvalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original\nintent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent\npossible.\n7.11 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of either party hereto in the\nexercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation,\nwarranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right.\nAll rights and remedies existing under this Agreement or the Exhibits attached hereto are cumulative to, and not exclusive of, any rights or remedies\notherwise available.\n7.12 AMENDMENT. No change or amendment will be made to this Agreement or the Exhibits attached hereto except by an instrument in\nwriting signed on behalf of each of the parties to such agreement.\n7.13 COUNTERPARTS. This Agreement, including the Ancillary Agreements and the Exhibits and Schedules hereto and thereto and the other\ndocuments referred to herein or therein, may be executed in counterparts, each of which shall be deemed to be an original but all of which shall\nconstitute one and the same agreement.\n-9-\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Date.\nPALM, INC.\nPALMSOURCE, INC.\nBy:\n/s/ JUDY BRUNER\nBy:\n/s/ DAVID C. NAGEL\nName:\nJudy Bruner\nName:\nDavid Nagel\nTitle:\nChief Financial Officer\nTitle:\nChief Executive Officer\n-10-	EX-2.28 17 dex228.htm MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 2.28\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nPALM, INC.\nand\nPALMSOURCE, INC.\nEffective as of December 3, 2001\nTABLE OF CONTENTS\nPage\nARTICLE 1 DEFINITIONS\n1\n1.1\nANCILLARY AGREEMENTS\n1\n1.2\nBUSINESS SERVICES AGREEMENT\n1\n1.3\nCONFIDENTIAL INFORMATION\n1\n1.4\nCONFIDENTIALITY PERIOD\n2\n1.5\nDISCLOSING PARTY\n2\n1.6\nHIGHLY CONFIDENTIAL INFORMATION\n2\n1.7\nMASTER SEPARATION AGREEMENT\n2\n1.8\nPERSON\n3\n1.9\nRECEIVING PARTY\n3\n1.10\nSEPARATION DATE\n3\n1.11\nSUBSIDIARY\n3\n1.12\nTHIRD PARTY\n3\n1.13\nTRANSACTION AGREEMENTS\n3\nARTICLE 2 CONFIDENTIALITY\n3\n2.1\nCONFIDENTIALITY AND NON-USE OBLIGATIONS\n3\n2.2\nDISCLOSURE TO SUBLICENSEES\n4\n2.3\nCONTRACT MANUFACTURERS\n4\n2.4\nRESIDUALS\n4\n2.5\nCOMPELLED DISCLOSURE\n4\n2.6\nNO RESTRICTION ON DISCLOSING PARTY\n4\n2.7\nNO RESTRICTION ON REASSIGNMENT\n4\n2.8\nTHIRD PARTY RESTRICTIONS\n4\nARTICLE 3 WARRANTY DISCLAIMER\n5\nARTICLE 4 CONFIDENTIALITY OF AGREEMENT\n5\nARTICLE 5 TERM AND TERMINATION\n5\n5.1\nTERM\n5\n5.2\nSURVIVAL\n6\nARTICLE 6 DISPUTE RESOLUTION\n6\n6.1\nMEDIATION\n6\n6.2\nARBITRATION\n6\n6.3\nCOURT ACTION\n6\n6.4\nCONTINUITY OF SERVICE AND PERFORMANCE\n7\n6.5\nRESOLUTION BY PALMSOURCE COMMITTEE\n7\n-i-\nTABLE OF CONTENTS\n(Continued)\nPage\nARTICLE 7 MISCELLANEOUS PROVISIONS\n7\n7.1\nEXPORT RESTRICTIONS\n7\n7.2\nNO IMPLIED LICENSES\n7\n7.3\nINFRINGEMENT SUITS\n7\n7.4\nNO OTHER OBLIGATIONS\n8\n7.5\nENTIRE AGREEMENT\n8\n7.6\nGOVERNING LAW\n8\n7.7\nDESCRIPTIVE HEADINGS\n8\n7.8\nNOTICES\n8\n7.9\nNONASSIGNABILITY\n9\n7.10\nSEVERABILITY\n9\n7.11\nFAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE\n9\n7.12\nAMENDMENT\n9\n7.13\nCOUNTERPARTS\n9\n- ii-\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Master Confidential Disclosure Agreement (the “Agreement”) is executed on May 9, 2002 and made effective as of December 3, 2001\n(the “Effective Date”), between Palm, Inc., a Delaware corporation (“Palm”), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054 and PalmSource, Inc., a Delaware corporation (“PalmSource”), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054.\nRECITALS\nWHEREAS, the Board of Directors of Palm has determined that it is in the best interest of Palm and its stockholders to separate Palm’s\nexisting businesses into two independent businesses and have the current business of the Palm platform solutions group conducted through a wholly-\nowned subsidiary;\nWHEREAS, as part of the foregoing, Palm and have entered into a Master Separation Agreement (as defined below), which provides for,\namong other things, the execution and delivery of certain other agreements in order to facilitate and provide for the foregoing; and\nWHEREAS, also as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their\nConfidential Information (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE 1\nDEFINITIONS\nFor the purpose of this Agreement the following capitalized terms are defined in this Article 1 and shall have the meaning specified herein:\n1.1 ANCILLARY AGREEMENTS . “Ancillary Agreements” means the items and agreements listed in Section 2.1 of the Master Separation\nAgreement and all agreements and documents contemplated by such agreements.\n1.2 BUSINESS SERVICES AGREEMENT. “Business Services Agreement” means that certain Business Services Agreement between Palm\nand PalmSource.\n1.3 CONFIDENTIAL INFORMATION\n(a) “Confidential Information” means business information, technical data, know-how and other information which is not otherwise in\nthe public domain and of which the owner actively undertakes to restrict or control the disclosure to Third Parties in a manner reasonably\nintended to maintain its confidentiality, and which (i) is the subject of any Transaction Agreement and known to or in the possession of the\nReceiving Party as of the Separation Date or (ii) is disclosed to the Receiving Party pursuant to any Transaction Agreement for a period of one (1)\nyear after the Effective Date or such term during which services are provided under the Business Services Agreement, whichever is longer.\nConfidential Information may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned by\ninspection of computer programming code, equipment or facilities.\n(b) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party’s Confidential Information for purposes herein.\n(c) Notwithstanding the foregoing provisions of this Section 1.2, Confidential Information shall exclude information that: (i) was in the\nReceiving Party’s possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing Party and other than\nthrough the prior relationship of the Disclosing Party and the Receiving Party before the Separation Date; (ii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party; (iii) is rightfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (iv) is disclosed by the Disclosing Party to a Third Party without a duty of confidentiality on the Third Party; (v) is independently\ndeveloped by the Receiving Party; or (vi) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval.\n1.4 CONFIDENTIALITY PERIOD. “Confidentiality Period” means, (i) with respect to Confidential Information that is not Highly\nConfidential Information, five (5) years, and (ii) with respect to Highly Confidential Information, in perpetuity, after either (A) the Separation Date\nwith respect to Confidential Information of the Disclosing Party that is known to or in the possession of the Receiving Party as of the Separation\nDate or (B) the date of disclosure with respect to Confidential Information that is disclosed by the Disclosing Party to the Receiving Party after the\nSeparation Date.\n1.5 DISCLOSING PARTY. “Disclosing Party” means the party owning or disclosing the relevant Confidential Information.\n1.6 HIGHLY CONFIDENTIAL INFORMATION . “Highly Confidential Information” means Confidential Information that is source code for\nproducts that are commercially released or for which substantial steps have been taken to commercialization, and personally identifiable information\nregarding customers and employees.\n1.7 MASTER SEPARATION AGREEMENT. “Master Separation Agreement” means that certain Master Separation Agreement between Palm\nand PalmSource.\n-2-\n1.8 PERSON. “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a\ntrust, a joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n1.9 RECEIVING PARTY. “Receiving Party” means the non-owning party or recipient of the relevant Confidential Information.\n1.10 SEPARATION DATE . “Separation Date” means 12:01 a.m., Pacific Time, December 3, 2001, or such other date as may be fixed by the\nBoard of Directors of Palm.\n1.11 SUBSIDIARY. “Subsidiary” of any Person means a corporation or other organization, whether incorporated or unincorporated, of which\nat least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors\nor others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such\nPerson or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no Person that is not\ndirectly or indirectly wholly-owned by any other Person shall be a Subsidiary of such other Person unless such other Person controls, or has the\nright, power or ability to control, that Person. For purposes of this Agreement, PalmSource shall be deemed not to be a subsidiary of Palm.\n1.12 THIRD PARTY. “Third Party” means a Person other than Palm and its Subsidiaries or PalmSource and its Subsidiaries.\n1.13 TRANSACTION AGREEMENTS . “Transaction Agreements” means the Master Separation Agreement and the Ancillary Agreements\nbetween Palm and PalmSource, but does not include the following agreements between Palm and PalmSource: Software License Agreement and\nElaine Software License Agreement, each effective as of December 3, 2001 and under which PalmSource licenses to Palm certain operating system\nand server software and related products.\nARTICLE 2\nCONFIDENTIALITY\n2.1 CONFIDENTIALITY AND NON -USE OBLIGATIONS . During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, to prevent the\nunauthorized use, dissemination, or publication of the Confidential Information as Receiving Party uses to protect its own confidential information\nof a like nature, (ii) not use such Confidential Information in violation of any use restriction in any Transaction Agreement, and (iii) not disclose\nsuch Confidential Information to any Third Party, except as expressly permitted under this Agreement, in the Transaction Agreements or in any other\nagreements entered into between the parties in writing, without prior written consent of the Disclosing Party.\n-3-\n2.2 DISCLOSURE TO SUBLICENSEES . The Receiving Party has the right to disclose to its sublicensees permitted under a Transaction\nAgreement portions of Confidential Information as reasonably necessary in the exercise of the Receiving Party’s sublicense rights under such\nTransaction Agreement, subject to the sublicensee’s agreement in writing to confidentiality and non-use terms at least as protective of the Disclosing\nParty as the provisions of this Agreement.\n2.3 CONTRACT MANUFACTURERS . The Receiving Party has the right to disclose to its contract manufacturers permitted under any\nTransaction Agreement portions of the Confidential Information as reasonably necessary in the exercise of the Receiving Party’s “have made” rights\nunder any Transaction Agreement, subject to the contract manufacturer ’s agreement in writing to confidentiality and non-use terms at least as\nprotective of the Disclosing Party as the provisions of this Agreement.\n2.4 RESIDUALS. Notwithstanding any other provision of this Agreement, the Receiving Party shall be free, and the Disclosing Party hereby\ngrants to the Receiving Party, except as otherwise provided in this Section 2.4, the right, to use or exploit for any purpose the Residuals resulting\nfrom access to or work with the Confidential Information of the Disclosing Party; provided however that the Receiving Party shall maintain the\nconfidentiality of the Confidential Information as required by this Agreement. “Residuals” means information retained in the unaided memories of\nindividuals who have had access to Confidential Information. The Receiving Party shall have no obligation to pay royalties for any use of Residuals.\nHowever, this Section 2.4 does not grant the Receiving Party any rights under any patents or copyrights of the Disclosing Party.\n2.5 COMPELLED DISCLOSURE . If the Receiving Party or any of its respective Subsidiaries believes that it will be compelled by a court or\nother authority to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party prompt written notice so that the\nDisclosing Party may take steps to oppose such disclosure, and (ii) cooperate with the Disclosing Party in its attempts to oppose such disclosure. If\nthe Receiving Party complies with the above, it shall not be prohibited from complying with such requirement to disclose, but shall take all\nreasonable steps to make such disclosure subject to a suitable protective order or otherwise prevent unrestricted or public disclosure.\n2.6 NO RESTRICTION ON DISCLOSING PARTY. Nothing in this Agreement shall restrict the Disclosing Party from using, disclosing, or\ndisseminating its own Confidential Information in any way.\n2.7 NO RESTRICTION ON REASSIGNMENT. This Agreement shall not restrict reassignment of the Receiving Party’s employees.\n2.8 THIRD PARTY RESTRICTIONS . Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\n-4-\nARTICLE 3\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS,\nWHERE IS” BASIS AND THAT NEITHER PARTY NOR ANY OF ITS SUBSIDIARIES HAS MADE OR WILL MAKE ANY WARRANTY\nWHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF\nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY OR NON-INFRINGEMENT.\nARTICLE 4\nCONFIDENTIALITY OF AGREEMENT\nEach party agrees that the terms and conditions of the Transaction Agreements marked as confidential shall be treated as Confidential\nInformation and that neither party will disclose such terms or conditions to any Third Party without the prior written consent of the other party,\nprovided, however, that each party may disclose such terms and conditions of such agreements marked as confidential:\n(a) as required by any court or other governmental body (subject to Section 2.5);\n(b) as otherwise required by law (subject to Section 2.5);\n(c) in confidence, to legal counsel of the parties, accountants, and other professional advisors;\n(d) in confidence to banks, investors and other financing sources and their advisors;\n(e) in connection with the enforcement of this Agreement or rights under this Agreement; or\n(f) in confidence, in connection with an actual or prospective merger or acquisition or similar transaction.\nARTICLE 5\nTERM AND TERMINATION\n5.1 TERM . This Agreement shall remain in full force and effect unless and until terminated by the mutual written agreement of the parties.\n-5-\n5.2 SURVIVAL . Articles 1, 2 (with respect to Confidential Information acquired or disclosed prior to the date of termination), 3, 4, 5.2, 6, and\n7 shall survive any termination of this Agreement.\nARTICLE 6\nDISPUTE RESOLUTION\n6.1 MEDIATION. If a dispute, controversy or claim (“Dispute”) arises between the parties relating to the interpretation or performance of this\nAgreement or the grounds for the termination hereof, appropriate senior executives (e.g . director or vice president level) of each party who shall\nhave the authority to resolve the matter shall meet to attempt in good faith to negotiate a resolution of the Dispute prior to pursuing other available\nremedies. The initial meeting between the appropriate senior executives shall be referred to herein as the “Dispute Resolution Commencement\nDate.” Discussions and correspondence relating to trying to resolve such Dispute shall be treated as confidential information developed for the\npurpose of settlement and shall be exempt from discovery or production and shall not be admissible. If the senior executives are unable to resolve the\nDispute within thirty (30) days from the Dispute Resolution Commencement Date, and either party wishes to pursue its rights relating to such\nDispute, then the Dispute will be mediated by a mutually acceptable mediator appointed pursuant to the mediation rules of JAMS/Endispute within\nthirty (30) days after written notice by one party to the other demanding non-binding mediation. Neither party may unreasonably withhold consent to\nthe selection of a mediator or the location of the mediation. Both parties will share the costs of the mediation equally, except that each party shall\nbear its own costs and expenses, including attorney’s fees, witness fees, travel expenses, and preparation costs. The parties may also agree to replace\nmediation with some other form of non-binding or binding Alternative Dispute Resolution (“ADR”).\n6.2 ARBITRATION . Any Dispute which the parties cannot resolve through mediation within ninety (90) days of the Dispute Resolution\nCommencement Date, unless otherwise mutually agreed, shall be submitted to final and binding arbitration under the then current Commercial\nArbitration Rules of the American Arbitration Association (“AAA”), by three (3) arbitrators in Santa Clara County, California. Such arbitrators shall\nbe selected by the mutual agreement of the parties or, failing such agreement, shall be selected according to the aforesaid AAA rules. The arbitrators\nwill be instructed to prepare and deliver a written, reasoned opinion stating their decision within thirty (30) days of the completion of the arbitration.\nThe prevailing party in such arbitration shall be entitled to expenses, including costs and reasonable attorneys’ and other professional fees, incurred\nin connection with the arbitration (but excluding any costs and fees associated with prior negotiation or mediation). The decision of the arbitrator\nshall be final and non-appealable and may be enforced in any court of competent jurisdiction. The use of any ADR procedures will not be construed\nunder the doctrine of laches, waiver or estoppel to adversely affect the rights of either party.\n6.3 COURT ACTION . Any Dispute regarding the following is not required to be negotiated, mediated or arbitrated prior to seeking relief from\na court of competent jurisdiction:\n-6-\nbreach of any obligation of confidentiality; infringement, misappropriation, or misuse of any intellectual property right; any other claim where\ninterim relief from the court is sought to prevent serious and irreparable injury to one of the parties or to others. However, the parties to the Dispute\nshall make a good faith effort to negotiate and mediate such Dispute, according to the above procedures, while such court action is pending.\n6.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in writing, the parties will continue to provide service and\nhonor all other commitments under this Agreement and each Ancillary Agreement during the course of dispute resolution pursuant to the provisions\nof this Article 6 with respect to all matters not subject to such dispute, controversy or claim.\n6.5 RESOLUTION BY PALMSOURCE COMMITTEE . Notwithstanding the foregoing, while PalmSource remains a wholly-owned\nsubsidiary (excluding shares issued pursuant to PalmSource equity plans to officers, directors, employees and consultants of PalmSource), if,\npursuant to Section 6.1, the senior executives are unable to resolve the Dispute within thirty (30) days from the Dispute Resolution Commencement\nDate, and either party wishes to pursue its rights relating to such Dispute, then in lieu of mediation or subsequent remedy contemplated by Section\n6.2-6.3, the Dispute will be submitted to the PalmSource Committee for resolution (which committee shall consist of the CEO of Palm, the CEO of\nPalmSource and the Chairman of the Board of Palm, or such other composition as is mutually acceptable to Palm and PalmSource).\nARTICLE 7\nMISCELLANEOUS PROVISIONS\n7.1 EXPORT RESTRICTIONS. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to any\nproscribed country listed in such applicable laws, regulations and rules unless properly authorized.\n7.2 NO IMPLIED LICENSES. Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or\notherwise, under any intellectual property right, other than the rights expressly granted in this Agreement with respect to Confidential Information.\nNeither party is required hereunder to furnish or disclose to the other any technical or other information.\n7.3 INFRINGEMENT SUITS . Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of any\nintellectual property rights by the Receiving Party’s authorized use of the Disclosing Party’s Confidential Information.\n-7-\n7.4 NO OTHER OBLIGATIONS . NEITHER PARTY ASSUMES ANY RESPONSIBILITIES OR OBLIGATIONS WHATSOEVER, OTHER\nTHAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN\nAGREEMENT BETWEEN THE PARTIES.\n7.5 ENTIRE AGREEMENT. This Agreement, the Master Separation Agreement and the other Ancillary Agreements and the Exhibits and\nSchedules referenced or attached hereto and thereto constitute the entire agreement between the parties with respect to the subject matter hereof and\nthereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter\nhereof and thereof. Notwithstanding the foregoing, the parties agree that any agreements entered into between them after the Separation Date for the\nprotection of specific Confidential Information shall supersede the terms of this Agreement with respect to such Confidential Information.\n7.6 GOVERNING LAW. This Agreement shall be construed in accordance with and all Disputes hereunder shall be governed by the laws of\nthe State of California, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods. The\nSuperior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have jurisdiction and venue\nover all Disputes between the parties that are permitted to be brought in a court of law pursuant to Section 6 above.\n7.7 DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in any Exhibit hereto and in the table of contents to this\nAgreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term\nused in any Exhibit but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. When a reference is made in\nthis Agreement to an Article or a Section or an Exhibit, such reference shall be to an Article or Section of, or an Exhibit to, this Agreement unless\notherwise indicated.\n7.8 NOTICES. Notices, offers, requests or other communications required or permitted to be given by either party pursuant to the terms of this\nAgreement shall be given in writing to the respective parties to the following addresses:\niftoPalm:\nPalm, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: General Counsel\nif to PalmSource:\nPalmSource, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: Chief Executive Officer\n-8-\nor to such other address as the party to whom notice is given may have previously furnished to the other in writing as provided herein. Any notice\ninvolving non-performance, termination, or renewal shall be sent by hand delivery, recognized overnight courier or, within the United States, may\nalso be sent via certified mail, return receipt requested. All other notices may also be sent by fax, confirmed by first class mail. All notices shall be\ndeemed to have been given and received on the earlier of actual delivery or three (3) days from the date of postmark.\n7.9 NONASSIGNABILITY. Neither party may, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or\ntransfer this Agreement, without the other party’s prior written consent, and any attempted assignment, transfer or delegation without such prior\nwritten consent shall be voidable at the sole option of such other party. Notwithstanding the foregoing, each party (or its permitted successive\nassignees or transferees hereunder) may assign or transfer this Agreement as a whole without consent to a Person that succeeds to all or substantially\nall of the business or assets of such party as long as such Person agrees to accept all the terms and conditions set forth herein. Without limiting the\nforegoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.\n7.10 SEVERABILITY. If any term or other provision of this Agreement or the Exhibits attached hereto is determined by a court,\nadministrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and\nprovisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions\ncontemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any term or other provision is\ninvalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original\nintent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent\npossible.\n7.11 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of either party hereto in the\nexercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation,\nwarranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right.\nAll rights and remedies existing under this Agreement or the Exhibits attached hereto are cumulative to, and not exclusive of, any rights or remedies\notherwise available.\n7.12 AMENDMENT. No change or amendment will be made to this Agreement or the Exhibits attached hereto except by an instrument in\nwriting signed on behalf of each of the parties to such agreement.\n7.13 COUNTERPARTS. This Agreement, including the Ancillary Agreements and the Exhibits and Schedules hereto and thereto and the other\ndocuments referred to herein or therein, may be executed in counterparts, each of which shall be deemed to be an original but all of which shall\nconstitute one and the same agreement.\n-9-\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Date.\nPALM, INC.\nPALMSOURCE, INC.\nBy:\n/s/ JUDY BRUNER\nBy:\n/s/ DAVID C. NAGEL\nName:\nJudy Bruner\nName:\nDavid Nagel\nTitle:\nChief Financial Officer\nTitle:\nChief Executive Officer\n- 10-
d057b548c04b38628cef0a3c655f4557.pdf	effective_date jurisdiction party term	EX-10 2 exhibit101.txt EXHIBIT 10.1 PARKER EXHIBIT 10.1 AMENDED AND RESTATED COVENANT NOT TO\nCOMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Mark G. Parker (Employee) NIKE, Inc., and its\nparent, divisions, subsidiaries and affiliates (NIKE) DATE: July 24, 2008 RECITALS: A. Employee and NIKE are\nparties to a Covenant Not to Compete and Non-Disclosure Agreement dated as of February 28, 2006 (the "Prior\nAgreement"). The Prior Agreement was executed upon the Employee's advancement to the position of President and\nChief Executive Officer of NIKE and was a condition of such advancement. In order to comply with the provisions of\nSection 409A of the Internal Revenue Code of 1986 and thereby avoid the tax penalties to Employee that would result\nfrom failure to comply, Employee and NIKE wish to amend and restate the Prior Agreement in the form of this Amended\nand Restated Covenant Not to Compete and Non-Disclosure Agreement (the "Amended and Restated Agreement"). As\nmore fully described in paragraph 8.5 below, Employee agrees that the Prior Agreement remains in full force and effect\nand was entered into upon a bona fide advancement. B. Over the course of Employee's employment with NIKE,\nEmployee will be or has been exposed to and is in a position to develop confidential information peculiar to NIKE's\nbusiness and not generally known to the public as defined below ("Protected Information"). It is anticipated that\nEmployee will continue to be exposed to Protected Information of greater sensitivity as Employee advances in the\ncompany. C. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure. D . NIKE makes use of its Protected Information throughout\nthe world. Protected Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In\nconsideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows: 1. Covenant\nNot to Compete. _______________________ 1.1 Competition Restriction. During Employee's employment by\n_______________________\nNIKE, under the terms of any employment contract or otherwise, and for twenty-four (24)\nmonths thereafter, (the "Restriction Period"), Employee will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and\naccessories business, or any other business which directly competes with NIKE or any of its parent, subsidiaries or\naffiliated corporations ("Competitor"). By way of illustration only, examples of NIKE competitors include but are not\nlimited to: Adidas, FILA, Reebok, Puma, Asics, Saucony, New Balance, Skechers, KSwiss, Merrell, Timberland,\nChampion, Russell, Oakley, DKNY, Ralph Lauren/Polo Sport, B.U.M ., FUBU, The Gap, Tommy Hilfiger, Umbro, The\nNorth Face, Foot Locker, The Sports Authority, Finish Line, Columbia Sportswear, Wilson, Mizuno, Callaway Golf,\nAcushnet, and Taylor Made. This provision is subject to NIKE's option to waive all or any portion of the Restriction\nPeriod as more specifically provided below. 1.2 Extension of Time. In the event that Employee breaches this\n_________________\ncovenant not to compete, the Restriction Period shall automatically toll from the date of the first\nbreach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other action,\nincluding all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay Employee the additional compensation described in paragraph 1.4\nbelow for any period of time in which this Amended and Restated Agreement is tolled due to Employee's breach. In the\nevent Employee receives such additional compensation for any such breach, Employee must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE. 1.3 Waiver of Non-\nCompete. NIKE has the option to elect to waive _____________________ all or a portion of the Restriction Period or to\nlimit the definition of Competitor, by giving Employee seven (7) days prior notice of such election; provided, however,\nunless Employee is terminated "for cause" (which shall only include continual and repeated neglect of duties or acts of\ndishonesty), any waiver of the Restriction Period must be with the consent of Employee. In the event all or a portion of\nthe Restriction Period is waived, NIKE shall not be obligated to pay Employee for any period of time as to which the\nCovenant Not to Compete has been waived. 1.4 Additional Consideration. __ ______________________ (a) As\nadditional consideration for the Covenant Not To Compete described above, should NIKE terminate Employee's\nemployment and the Covenant Not To Compete is enforced, NIKE shall (subject to subparagraph (b) below) pay\nEmployee a monthly payment equal to one- twelfth (1/12) of Employee's then current Annual NIKE Income (defined\nherein to mean base salary and annual Performance Sharing Plan bonus calculated at 100% of Employee's last targeted\nrate) while the Restriction Period is in effect. If Employee voluntarily terminates employment and the Covenant Not To\nCompete is enforced, NIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-\ntwenty-fourth (1/24) of Employee's then current Annual NIKE Income while the Restriction Period is in effect. (b)\nSection 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in subparagraph\n(a) above may not commence until six months after Employee's "separation from service" as defined in Treasury\nRegulations (Section) 1.409A -1(h). Failure to follow this requirement will result in substantial tax penalties to\nEmployee. Accordingly, the commencement of these payments will be delayed until after the six-month period following\nEmployee's separation from service in order to comply with Section 409A and avoid tax penalties for Employee. All\npayments that Employee would otherwise have received before the date that is six months after Employee's separation\nfrom service will be accumulated by NIKE and paid to Employee in a lump sum promptly following the end of the six-\nmonth period, together with interest at a fluctuating rate per annum equal to the prime rate as published from time to\ntime in The Wall Street Journal on these delayed payments from the date otherwise payable under subparagraph (a) until\nthe date actually paid. 2. Subsequent Employer. Employee agrees to notify NIKE at the ___________________ time of\nseparation of employment of the name of Employee's new employer, if known. Employee further agrees to disclose to\nNIKE the name of any subsequent employer during the Restriction Period, wherever located and regardless of whether\nsuch employer is a competitor of NIKE. 3. Non-Disclosure Agreement. ________________________ 3.1 Protectable\nInformation Defined. "Protected Information" _______________________________ shall mean all proprietary\ninformation, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE\nis obligated to keep confidential. Employee agrees that any and all information to which Employee has access\nconcerning NIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes information relating to NIKE's research and development activities, its\nintellectual property and the filing or pendency of patent applications, trade secrets, confidential techniques, methods,\nstyles, designs, design concepts and ideas, customer and vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business and marketing plans, sales and futures information, non-public financial information,\nmethods of operation, manufacturing processes and methods, products, and personnel information. 3.2 Excluded\nInformation. Notwithstanding paragraph 3.1, ____________________ Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of the Employee. Specifically,\nemployees shall be permitted to retain as part of their personal portfolio copies of the employees' original artwork and\ndesigns, provided the artwork or designs have become part of the public domain. In any dispute between the parties with\nrespect to this exclusion, the burden of proof will be on Employee and such proof will be by clear and convincing\nevidence. 3.3 Employee's Obligations. During the period of employment by ______________________ NIKE and for a\nperiod of two (2) years thereafter, Employee will hold in confidence and protect all Protected Information and will not, at\nany time, directly or indirectly, use and Protected Information for any purpose outside the scope of Employee's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the prior\nwritten consent of NIKE. Specifically, but not by way of limitation, Employee will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the\nprior written consent of NIKE. Employee will also take reasonable security precautions and such other actions as may be\nnecessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of\nthis Amended and Restated Agreement. 4. Return of Protected Information. At the request of NIKE at\n_______________________________\nany time, and in any event, upon termination of employment, Employee shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other\nsimilar repositories of or containing Protected Information, and all copies thereof, then in Employee's possession or\nunder Employee's control. 5. Unauthorized Use. During the period of employment with NIKE ________________ and\nthereafter, Employee will notify NIKE immediately if Employee becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such\npossession, use or knowledge. Employee will cooperate with NIKE in the investigation of any such incident and will\ncooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to Employee for each hour so engaged and that amount shall not be\ndiminished by operation of any payment under paragraph 1.4 of this Amended and Restated Agreement. 6. Non-\nRecruitment. During the term of this Amended and _______________ Restated Agreement and for a period of one (1)\nyear thereafter, Employee will not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization, any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a written\nagreement or is at will. 7. Accounting of Profits. Employee agrees that, if Employee _____________________ should\nviolate any term of this Amended and Restated Agreement, NIKE shall be entitled to an accounting and repayment of all\nprofits, compensation, commissions, remuneration or benefits which Employee directly or indirectly has realized and/or\nmay realize as a result of or in connection with any such violation (including return of any additional consideration paid\nby NIKE pursuant to paragraph 1.4 above). Such remedy shall be in addition to and not in limitation of any injunctive\nrelief or other rights or remedies to which NIKE may be entitled at law or in equity. 8. General Provisions.\n__________________\n8.1 Survival. This Amended and Restated Agreement shall ________ continue in effect after the\ntermination of Employee's employment, regardless of the reason for termination. 8.2 Waiver. No waiver, amendment,\nmodification or cancellation ______ of any term or condition of this Amended and Restated Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or\nacts specifically referred to therein. 8.3 Severability. Each provision herein will be treated as a ____________ separate\nand independent clause and unenforceability of any one clause will in no way impact the enforceability of any other\nclause. Should any of the provisions in this Amended and Restated Agreement be found to be unreasonable or invalid by\na court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of\nthat jurisdiction. 8.4 Applicable Law and Jurisdiction. This Amended and Restated\n_______________________________\nAgreement, and Employee's employment hereunder, shall be construed according\nto the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this Amended and Restated\nAgreement shall lie in the state and federal courts located in Oregon. 8.5 Prior Agreement Remains Fully Valid and\nEnforceable. This ___________________________________________________ Amended and Restated Agreement\ndoes not supersede the Prior Agreement except to the extent that the terms of this Amended and Restated Agreement\nconflict with the terms of the Prior Agreement, in which case the terms of this Amended and Restated Agreement shall\ncontrol. Other than with respect to the terms that conflict with this Amended and Restated Agreement, the terms of the\nPrior Agreement remain fully valid and enforceable. Employee /s/ Mark G. Parker By:\n_______________________________\nName: Mark G. Parker NIKE, Inc. /s/ Philip H. Knight By:\n_______________________________\nName: Philip H. Knight Title: Chairman of the Board	EX-10 2 exhibit101.txt EXHIBIT 10.1 PARKER EXHIBIT 10.1 AMENDED AND RESTATED COVENANT NOT TO\nCOMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Mark G. Parker (Employee) NIKE, Inc., and its\nparent, divisions, subsidiaries and affiliates (NIKE) DATE: July 24, 2008 RECITALS: A. Employee and NIKE are\nparties to a Covenant Not to Compete and Non-Disclosure Agreement dated as of February 28, 2006 (the "Prior\nAgreement"). The Prior Agreement was executed upon the Employee's advancement to the position of President and\nChief Executive Officer of NIKE and was a condition of such advancement. In order to comply with the provisions of\nSection 409A of the Internal Revenue Code of 1986 and thereby avoid the tax penalties to Employee that would result\nfrom failure to comply, Employee and NIKE wish to amend and restate the Prior Agreement in the form of this Amended\nand Restated Covenant Not to Compete and Non-Disclosure Agreement (the "Amended and Restated Agreement"). As\nmore fully described in paragraph 8.5 below, Employee agrees that the Prior Agreement remains in full force and effect\nand was entered into upon a bona fide advancement. B. Over the course of Employee's employment with NIKE,\nEmployee will be or has been exposed to and is in a position to develop confidential information peculiar to NIKE's\nbusiness and not generally known to the public as defined below ("Protected Information"). It is anticipated that\nEmployee will continue to be exposed to Protected Information of greater sensitivity as Employee advances in the\ncompany. C. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure. D. NIKE makes use of its Protected Information throughout\nthe world. Protected Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In\nconsideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows: 1. Covenant\nNot to Compete. 1.1 Competition Restriction. During Employee's employment by\nNIKE, under the terms of any employment contract or otherwise, and for twenty-four (24)\nmonths thereafter, (the "Restriction Period"), Employee will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and\naccessories business, or any other business which directly competes with NIKE or any of its parent, subsidiaries or\naffiliated corporations ("Competitor"). By way of illustration only, examples of NIKE competitors include but are not\nlimited to: Adidas, FILA, Reebok, Puma, Asics, Saucony, New Balance, Skechers, KSwiss, Merrell, Timberland,\nChampion, Russell, Oakley, DKNY, Ralph Lauren/Polo Sport, B.U.M., FUBU, The Gap, Tommy Hilfiger, Umbro, The\nNorth Face, Foot Locker, The Sports Authority, Finish Line, Columbia Sportswear, Wilson, Mizuno, Callaway Golf,\nAcushnet, and Taylor Made. This provision is subject to NIKE's option to waive all or any portion of the Restriction\nPeriod as more specifically provided below. 1.2 Extension of Time. In the event that Employee breaches this\ncovenant not to compete, the Restriction Period shall automatically toll from the date of the first\nbreach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other action,\nincluding all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay Employee the additional compensation described in paragraph 1.4\nbelow for any period of time in which this Amended and Restated Agreement is tolled due to Employee's breach. In the\nevent Employee receives such additional compensation for any such breach, Employee must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE. 1.3 Waiver of Non-\nCompete. NIKE has the option to elect to waive all or a portion of the Restriction Period or to\nlimit the definition of Competitor, by giving Employee seven (7) days prior notice of such election; provided, however,\nunless Employee is terminated "for cause" (which shall only include continual and repeated neglect of duties or acts of\ndishonesty), any waiver of the Restriction Period must be with the consent of Employee. In the event all or a portion of\nthe Restriction Period is waived, NIKE shall not be obligated to pay Employee for any period of time as to which the\nCovenant Not to Compete has been waived. 1.4 Additional Consideration. (a) As\nadditional consideration for the Covenant Not To Compete described above, should NIKE terminate Employee's\nemployment and the Covenant Not To Compete is enforced, NIKE shall (subject to subparagraph (b) below) pay\nEmployee a monthly payment equal to one- twelfth (1/12) of Employee's then current Annual NIKE Income (defined\nherein to mean base salary and annual Performance Sharing Plan bonus calculated at 100% of Employee's last targeted\nrate) while the Restriction Period is in effect. If Employee voluntarily terminates employment and the Covenant Not To\nCompete is enforced, NIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-\ntwenty-fourth (1/24) of Employee's then current Annual NIKE Income while the Restriction Period is in effect. (b)\nSection 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in subparagraph\n(a) above may not commence until six months after Employee's "separation from service" as defined in Treasury\nRegulations (Section) 1.409A-1(h). Failure to follow this requirement will result in substantial tax penalties to\nEmployee. Accordingly, the commencement of these payments will be delayed until after the six-month period following\nEmployee's separation from service in order to comply with Section 409A and avoid tax penalties for Employee. All\npayments that Employee would otherwise have received before the date that is six months after Employee's separation\nfrom service will be accumulated by NIKE and paid to Employee in a lump sum promptly following the end of the six-\nmonth period, together with interest at a fluctuating rate per annum equal to the prime rate as published from time to\ntime in The Wall Street Journal on these delayed payments from the date otherwise payable under subparagraph (a) until\nthe date actually paid. 2. Subsequent Employer. Employee agrees to notify NIKE at the time of\nseparation of employment of the name of Employee's new employer, if known. Employee further agrees to disclose to\n \n \n \n \nNIKE the name of any subsequent employer during the Restriction Period, wherever located and regardless of whether\nsuch employer is a competitor of NIKE. 3. Non-Disclosure Agreement. 3.1 Protectable\nInformation Defined. "Protected Information" shall mean all proprietary\ninformation, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE\nis obligated to keep confidential. Employee agrees that any and all information to which Employee has access\nconcerning NIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes information relating to NIKE's research and development activities, its\nintellectual property and the filing or pendency of patent applications, trade secrets, confidential techniques, methods,\nstyles, designs, design concepts and ideas, customer and vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business and marketing plans, sales and futures information, non-public financial information,\nmethods of operation, manufacturing processes and methods, products, and personnel information. 3.2 Excluded\nInformation. Notwithstanding paragraph 3.1, Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of the Employee. Specifically,\nemployees shall be permitted to retain as part of their personal portfolio copies of the employees' original artwork and\ndesigns, provided the artwork or designs have become part of the public domain. In any dispute between the parties with\nrespect to this exclusion, the burden of proof will be on Employee and such proof will be by clear and convincing\nevidence. 3.3 Employee's Obligations. During the period of employment by NIKE and for a\nperiod of two (2) years thereafter, Employee will hold in confidence and protect all Protected Information and will not, at\nany time, directly or indirectly, use and Protected Information for any purpose outside the scope of Employee's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the prior\nwritten consent of NIKE. Specifically, but not by way of limitation, Employee will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the\nprior written consent of NIKE. Employee will also take reasonable security precautions and such other actions as may be\nnecessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of\nthis Amended and Restated Agreement. 4. Return of Protected Information. At the request of NIKE at\nany time, and in any event, upon termination of employment, Employee shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other\nsimilar repositories of or containing Protected Information, and all copies thereof, then in Employee's possession or\nunder Employee's control. 5. Unauthorized Use. During the period of employment with NIKE and\nthereafter, Employee will notify NIKE immediately if Employee becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such\npossession, use or knowledge. Employee will cooperate with NIKE in the investigation of any such incident and will\ncooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to Employee for each hour so engaged and that amount shall not be\ndiminished by operation of any payment under paragraph 1.4 of this Amended and Restated Agreement. 6. Non-\nRecruitment. During the term of this Amended and Restated Agreement and for a period of one (1)\nyear thereafter, Employee will not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization, any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a written\nagreement or is at will. 7. Accounting of Profits. Employee agrees that, if Employee should\nviolate any term of this Amended and Restated Agreement, NIKE shall be entitled to an accounting and repayment of all\nprofits, compensation, commissions, remuneration or benefits which Employee directly or indirectly has realized and/or\nmay realize as a result of or in connection with any such violation (including return of any additional consideration paid\nby NIKE pursuant to paragraph 1.4 above). Such remedy shall be in addition to and not in limitation of any injunctive\nrelief or other rights or remedies to which NIKE may be entitled at law or in equity. 8. General Provisions.\n8.1 Survival. This Amended and Restated Agreement shall continue in effect after the\ntermination of Employee's employment, regardless of the reason for termination. 8.2 Waiver. No waiver, amendment,\nmodification or cancellation of any term or condition of this Amended and Restated Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or\nacts specifically referred to therein. 8.3 Severability. Each provision herein will be treated as a separate\nand independent clause and unenforceability of any one clause will in no way impact the enforceability of any other\nclause. Should any of the provisions in this Amended and Restated Agreement be found to be unreasonable or invalid by\na court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of\nthat jurisdiction. 8.4 Applicable Law and Jurisdiction. This Amended and Restated\nAgreement, and Employee's employment hereunder, shall be construed according\nto the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this Amended and Restated\nAgreement shall lie in the state and federal courts located in Oregon. 8.5 Prior Agreement Remains Fully Valid and\nEnforceable. This Amended and Restated Agreement\ndoes not supersede the Prior Agreement except to the extent that the terms of this Amended and Restated Agreement\nconflict with the terms of the Prior Agreement, in which case the terms of this Amended and Restated Agreement shall\n \n \n \n \n \n \n \ncontrol. Other than with respect to the terms that conflict with this Amended and Restated Agreement, the terms of the\nPrior Agreement remain fully valid and enforceable. Employee /s/ Mark G. Parker By:\nName: Mark G. Parker NIKE, Inc. /s/ Philip H. Knight By:\nName: Philip H. Knight Title: Chairman of the Board	EX-10 2 exhibit EXHIBIT 10.1 PARKER EXHIBIT 10.1 AMENDED AND RESTATED COVENANT NOT TO\nCOMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Mark G. Parker (Employee) NIKE, Inc., and its\nparent, divisions, subsidiaries and affiliates (NIKE) DATE: July 24, 2008 RECITALS: A. Employee and NIKE are\nparties to a Covenant Not to Compete and Non-Disclosure Agreement dated as of February 28, 2006 (the "Prior\nAgreement") The Prior Agreement was executed upon the Employee's advancement to the position of President and\nChief Executive Officer of NIKE and was a condition of such advancement In order to comply with the provisions of\nSection 409A of the Internal Revenue Code of 1986 and thereby avoid the tax penalties to Employee that would result\nfrom failure to comply, Employee and NIKE wish to amend and restate the Prior Agreement in the form of this Amended\nand Restated Covenant Not to Compete and Non-Disclosure Agreement (the "Amended and Restated Agreement"). As\nmore fully described in paragraph 8.5 below, Employee agrees that the Prior Agreement remains in full force and effect\nand was entered into upon a bona fide advancement. B. Over the course of Employee's employmen with NIKE,\nEmployee will be or has been exposed to and is in a position to develop confidential information peculiar to NIKE's\nbusiness\nand\nnot\ngenerally\nknown\nto\nthe\npublic\nas\ndefined\nbelow\n("Protected\nInformation").\nIt\nis\nanticipated\nthat\nEmployee will continue to be exposed to Protected Information of greater sensitivity as Employee advances in the\ncompany. C. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure. D. NIKE makes use of its Protected Information throughout\nthe world. Protected Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In\nconsideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows: 1. Covenant\nNot to Compete.\n1.1 Competition Restriction. During Employee's employment by\nNIKE, under the terms of any employment contract or otherwise, and for twenty-four (24)\nmonths thereafter, (the "Restriction Period"), Employee will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and\naccessories business, or any other business which directly competes with NIKE or any of its parent, subsidiaries or\naffiliated corporations ("Competitor") By way of illustration only, examples of NIKE competitors include but are not\nlimited to: Adidas, FILA, Reebok, Puma, Asics, Saucony, New Balance, Skechers, KSwiss, Merrell, Timberland,\nChampion, Russell, Oakley, DKNY, Ralph Lauren/Polo Sport, B.U.M., FUBU, The Gap, Tommy Hilfiger, Umbro, The\nNorth Face, Foot Locker, The Sports Authority, Finish Line, Columbia Sportswear Wilson, Mizuno, Callaway Golf,\nAcushnet, and Taylor Made. This provision is subject to NIKE's option to waive all or any portion of the Restriction\nPeriod as more specifically provided below. 1.2 Extension of Time. In the event that Employee breaches this\ncovenant not to compete, the Restriction Period shall automatically toll from the date of the first\nbreach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other action,\nincluding all appeals The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay Employee the additional compensation described in paragraph\n1.4\nbelow for any period of time in which this Amended and Restated Agreement is tolled due to Employee's breach. In the\nevent\nEmployee receives such additional compensation for any such breach, Employee must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE. 1.3 Waiver of Non-\nCompete. NIKE has the option to elect to waive\nall or a portion of the Restriction Period or to\nlimit the definition of Competitor, by giving Employee seven (7) days prior notice of such election; provided, however,\nunless Employee is terminated "for cause" (which shall only include continual and repeated neglect of duties or acts of\ndishonesty), any waiver of the Restriction Period must be with the consent of Employee. In the event all or a portion of\nthe Restriction Period is waived, NIKE shall not be obligated to pay Employee for any period of time as to which the\nCovenant Not to Compete has been waived. 1.4 Additional Consideration.\n(a) As\nadditional consideration for the Covenant Not To Compete described above, should NIKE terminate Employee's\nemployment and the Covenant Not To Compete is enforced, NIKE shall (subject to subparagraph (b) below) pay\nEmployee a monthly payment equal to one- twelfth (1/12) of Employee's then current Annual NIKE Income (defined\nherein to mean base salary and annual Performance Sharing Plan bonus calculated at 100% of Employee's last targeted\nrate) while the Restriction Period is in effect. If Employee voluntarily terminates employment and the Covenant Not\nTo\nCompete\nis\nenforced,\nNIKE\nshall\n(subject\nto\nsubparagraph\n(b)\nbelow)\npay\nEmployee\na\nmonthly\npayment\nequal\nto\none-\ntwenty-fourth (1/24) of Employee's then current Annual NIKE Income while the Restriction Period is in effect. (b)\nSection 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in subparagraph\n(a) above may not commence until six months after Employee's "separation from service" as defined in Treasury\nRegulations (Section) 1.409A-1(h). Failure to follow this requirement will result in substantial tax penalties to\nEmployee. Accordingly, the commencement of these payments will be delayed until after the six-month period following\nEmployee's separation from service in order to comply with Section 409A and avoid tax penalties for Employee. All\npayments that Employee would otherwise have received before the date that is six months after Employee's separation\nfrom service will be accumulated by NIKE and paid to Employee in a lump sum promptly following the end of the six-\nmonth period, together with interest at a fluctuating rate per annum equal to the prime rate as published from time\nto\ntime in The Wall Street Journal on these delayed payments from the date otherwise payable under subparagraph (a) until\nthe date actually paid. 2. Subsequent Employer. Employee agrees to notify NIKE at the\ntime of\nseparation of employment of the name of Employee's new employer, if known. Employee further agrees to disclose\nto\nNIKE the name of any subsequent employer during the Restriction Period, wherever located and regardless of whether\nsuch employer is a competitor of NIKE. 3. Non-Disclosure Agreement\n3.1 Protectable\nInformation Defined. "Protected Information"\nshall mean all proprietary\ninformation, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE\nis obligated to keep confidential. Employee agrees that any and all information to which Employee has access\nconcerning NIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes information relating to NIKE's research and development activities, its\nintellectual property and the filing or pendency of patent applications, trade secrets, confidential techniques, methods,\nstyles, designs, design concepts and ideas, customer and vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business and marketing plans, sales and futures information, non-public financial information,\nmethods of operation, manufacturing processes and methods, products, and personnel information. 3.2 Excluded\nInformation. Notwithstanding paragraph 3.1,\nProtected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of the Employee Specifically,\nemployees shall be permitted to retain as part of their personal portfolio copies of the employees' original artwork and\ndesigns,\nprovided the artwork or designs have become part of the public domain. In any dispute between the parties with\nrespect to this exclusion, the burden of proof will be on Employee and such proof will be by clear and convincing\nevidence. 3.3 Employee's Obligations. During the period of employment by\nNIKE and for a\nperiod of two (2) years thereafter Employee will hold in confidence and protect all Protected Information and will not, at\nany time, directly or indirectly, use and Protected Information for any purpose outside the scope of Employee's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the prior\nwritten consent of NIKE. Specifically, but not by way of limitation, Employee will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the\nprior written consent of NIKE. Employee will also take reasonable security precautions and such other actions as may be\nnecessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of\nthis Amended and Restated Agreement. 4. Return of Protected Information. At the request of NIKE at\nany time, and in any event, upon termination of employment, Employee shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other\nsimilar repositories of or containing Protected Information, and all copies thereof, then in Employee's possession or\nunder Employee's control. 5. Unauthorized Use. During the period of employment with NIKE and\nthereafter, Employee will notify NIKE immediately if Employee becomes aware of the unauthorized possession, use\nor\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such\npossession, use or knowledge. Employee will cooperate with NIKE in the investigation of any such incident and will\ncooperate\nwith NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information\nNIKE shall provide reasonable reimbursement to Employee for each hour so engaged and that amount shall not be\ndiminished by operation of any payment under paragraph 1.4 of this Amended and Restated Agreement. 6. Non-\nRecruitment. During the term of this Amended and\nRestated Agreement and for a period of one (1)\nyear thereafter, Employee will not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization, any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a written\nagreement or is at will. 7. Accounting of Profits. Employee agrees that, if Employee\nshould\nviolate any term of this Amended and Restated Agreement, NIKE shall be entitled to an accounting and repayment of\nall\nprofits, compensation, commissions, remuneration or benefits which Employee directly or indirectly has realized and/or\nmay realize as a result of or in connection with any such violation (including return of any additional consideration paid\nby NIKE pursuant to paragraph 1.4 above). Such remedy shall be in addition to and not in limitation of any injunctive\nrelief or other rights or remedies to which NIKE may be entitled at law or in equity. 8. General Provisions.\n8.1 Survival. This Amended and Restated Agreement shall\ncontinue in effect after the\ntermination of Employee's employment, regardless of the reason for termination 8.2 Waiver. No waiver, amendment,\nmodification or cancellation of any term or condition of this Amended and Restated Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act\nor\nacts specifically referred to therein. 8.3 Severability. Each provision herein will be treated as a\nseparate\nand independent clause and unenforceability of any one clause will in no way impact the enforceability of any other\nclause. Should any of the provisions in this Amended and Restated Agreement be found to be unreasonable or invalid by\na court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of\nthat jurisdiction. 8.4 Applicable Law and Jurisdiction. This Amended and Restated\nAgreement, and Employee's employment hereunder, shall be construed according\nto the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this Amended and Restated\nAgreement shall lie in the state and federal courts located in Oregon. 8.5 Prior Agreement Remains Fully Valid and\nEnforceable. This\nAmended and Restated Agreement\ndoes not supersede the Prior Agreement except to the extent that the terms of this Amended and Restated Agreement\nconflict with the terms of the Prior Agreement, in which case the terms of this Amended and Restated Agreement shall\ncontrol. Other than with respect to the terms that conflict with this Amended and Restated Agreement, the terms of the\nPrior Agreement remain fully valid and enforceable. Employee /s/ Mark G. Parker By:\nName: Mark G. Parker NIKE, Inc. /s/ Philip H. Knight By:\nName: Philip H. Knight Title: Chairman of the Board	EX-10 2 exhibit101.txt EXHIBIT 10.1 PARKER EXHIBIT 10.1 AMENDED AND RESTATED COVENANT NOT TO\nCOMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Mark G. Parker (Employee) NIKE, Inc., and its\nparent, divisions, subsidiaries and affiliates (NIKE) DATE: July 24, 2008 RECITALS: A. Employee and NIKE are\nparties to a Covenant Not to Compete and Non-Disclosure Agreement dated as of February 28, 2006 (the "Prior\nAgreement"). The Prior Agreement was executed upon the Employee's advancement to the position of President and\nChief Executive Officer of NIKE and was a condition of such advancement. In order to comply with the provisions of\nSection 409A of the Internal Revenue Code of 1986 and thereby avoid the tax penalties to Employee that would result\nfrom failure to comply, Employee and NIKE wish to amend and restate the Prior Agreement in the form of this Amended\nand Restated Covenant Not to Compete and Non-Disclosure Agreement (the "Amended and Restated Agreement"). As\nmore fully described in paragraph 8.5 below, Employee agrees that the Prior Agreement remains in full force and effect\nand was entered into upon a bona fide advancement. B. Over the course of Employee's employment with NIKE,\nEmployee will be or has been exposed to and is in a position to develop confidential information peculiar to NIKE's\nbusiness and not generally known to the public as defined below ("Protected Information"). It is anticipated that\nEmployee will continue to be exposed to Protected Information of greater sensitivity as Employee advances in the\ncompany. C. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure. D . NIKE makes use of its Protected Information throughout\nthe world. Protected Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In\nconsideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows: 1. Covenant\nNot to Compete. _______________________ 1.1 Competition Restriction. During Employee's employment by\n_______________________\nNIKE, under the terms of any employment contract or otherwise, and for twenty-four (24)\nmonths thereafter, (the "Restriction Period"), Employee will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and\naccessories business, or any other business which directly competes with NIKE or any of its parent, subsidiaries or\naffiliated corporations ("Competitor"). By way of illustration only, examples of NIKE competitors include but are not\nlimited to: Adidas, FILA, Reebok, Puma, Asics, Saucony, New Balance, Skechers, KSwiss, Merrell, Timberland,\nChampion, Russell, Oakley, DKNY, Ralph Lauren/Polo Sport, B.U.M ., FUBU, The Gap, Tommy Hilfiger, Umbro, The\nNorth Face, Foot Locker, The Sports Authority, Finish Line, Columbia Sportswear, Wilson, Mizuno, Callaway Golf,\nAcushnet, and Taylor Made. This provision is subject to NIKE's option to waive all or any portion of the Restriction\nPeriod as more specifically provided below. 1.2 Extension of Time. In the event that Employee breaches this\n_________________\ncovenant not to compete, the Restriction Period shall automatically toll from the date of the first\nbreach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other action,\nincluding all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay Employee the additional compensation described in paragraph 1.4\nbelow for any period of time in which this Amended and Restated Agreement is tolled due to Employee's breach. In the\nevent Employee receives such additional compensation for any such breach, Employee must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE. 1.3 Waiver of Non-\nCompete. NIKE has the option to elect to waive _____________________ all or a portion of the Restriction Period or to\nlimit the definition of Competitor, by giving Employee seven (7) days prior notice of such election; provided, however,\nunless Employee is terminated "for cause" (which shall only include continual and repeated neglect of duties or acts of\ndishonesty), any waiver of the Restriction Period must be with the consent of Employee. In the event all or a portion of\nthe Restriction Period is waived, NIKE shall not be obligated to pay Employee for any period of time as to which the\nCovenant Not to Compete has been waived. 1.4 Additional Consideration. __ ______________________ (a) As\nadditional consideration for the Covenant Not To Compete described above, should NIKE terminate Employee's\nemployment and the Covenant Not To Compete is enforced, NIKE shall (subject to subparagraph (b) below) pay\nEmployee a monthly payment equal to one- twelfth (1/12) of Employee's then current Annual NIKE Income (defined\nherein to mean base salary and annual Performance Sharing Plan bonus calculated at 100% of Employee's last targeted\nrate) while the Restriction Period is in effect. If Employee voluntarily terminates employment and the Covenant Not To\nCompete is enforced, NIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-\ntwenty-fourth (1/24) of Employee's then current Annual NIKE Income while the Restriction Period is in effect. (b)\nSection 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in subparagraph\n(a) above may not commence until six months after Employee's "separation from service" as defined in Treasury\nRegulations (Section) 1.409A -1(h). Failure to follow this requirement will result in substantial tax penalties to\nEmployee. Accordingly, the commencement of these payments will be delayed until after the six-month period following\nEmployee's separation from service in order to comply with Section 409A and avoid tax penalties for Employee. All\npayments that Employee would otherwise have received before the date that is six months after Employee's separation\nfrom service will be accumulated by NIKE and paid to Employee in a lump sum promptly following the end of the six-\nmonth period, together with interest at a fluctuating rate per annum equal to the prime rate as published from time to\ntime in The Wall Street Journal on these delayed payments from the date otherwise payable under subparagraph (a) until\nthe date actually paid. 2. Subsequent Employer. Employee agrees to notify NIKE at the ___________________ time of\nseparation of employment of the name of Employee's new employer, if known. Employee further agrees to disclose to\nNIKE the name of any subsequent employer during the Restriction Period, wherever located and regardless of whether\nsuch employer is a competitor of NIKE. 3. Non-Disclosure Agreement. ________________________ 3.1 Protectable\nInformation Defined. "Protected Information" _______________________________ shall mean all proprietary\ninformation, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE\nis obligated to keep confidential. Employee agrees that any and all information to which Employee has access\nconcerning NIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes information relating to NIKE's research and development activities, its\nintellectual property and the filing or pendency of patent applications, trade secrets, confidential techniques, methods,\nstyles, designs, design concepts and ideas, customer and vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business and marketing plans, sales and futures information, non-public financial information,\nmethods of operation, manufacturing processes and methods, products, and personnel information. 3.2 Excluded\nInformation. Notwithstanding paragraph 3.1, ____________________ Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of the Employee. Specifically,\nemployees shall be permitted to retain as part of their personal portfolio copies of the employees' original artwork and\ndesigns, provided the artwork or designs have become part of the public domain. In any dispute between the parties with\nrespect to this exclusion, the burden of proof will be on Employee and such proof will be by clear and convincing\nevidence. 3.3 Employee's Obligations. During the period of employment by ______________________ NIKE and for a\nperiod of two (2) years thereafter, Employee will hold in confidence and protect all Protected Information and will not, at\nany time, directly or indirectly, use and Protected Information for any purpose outside the scope of Employee's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the prior\nwritten consent of NIKE. Specifically, but not by way of limitation, Employee will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the\nprior written consent of NIKE. Employee will also take reasonable security precautions and such other actions as may be\nnecessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of\nthis Amended and Restated Agreement. 4. Return of Protected Information. At the request of NIKE at\n_______________________________\nany time, and in any event, upon termination of employment, Employee shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other\nsimilar repositories of or containing Protected Information, and all copies thereof, then in Employee's possession or\nunder Employee's control. 5. Unauthorized Use. During the period of employment with NIKE ________________ and\nthereafter, Employee will notify NIKE immediately if Employee becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such\npossession, use or knowledge. Employee will cooperate with NIKE in the investigation of any such incident and will\ncooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to Employee for each hour so engaged and that amount shall not be\ndiminished by operation of any payment under paragraph 1.4 of this Amended and Restated Agreement. 6. Non-\nRecruitment. During the term of this Amended and _______________ Restated Agreement and for a period of one (1)\nyear thereafter, Employee will not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization, any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a written\nagreement or is at will. 7. Accounting of Profits. Employee agrees that, if Employee _____________________ should\nviolate any term of this Amended and Restated Agreement, NIKE shall be entitled to an accounting and repayment of all\nprofits, compensation, commissions, remuneration or benefits which Employee directly or indirectly has realized and/or\nmay realize as a result of or in connection with any such violation (including return of any additional consideration paid\nby NIKE pursuant to paragraph 1.4 above). Such remedy shall be in addition to and not in limitation of any injunctive\nrelief or other rights or remedies to which NIKE may be entitled at law or in equity. 8. General Provisions.\n__________________\n8.1 Survival. This Amended and Restated Agreement shall ________ continue in effect after the\ntermination of Employee's employment, regardless of the reason for termination. 8.2 Waiver. No waiver, amendment,\nmodification or cancellation ______ of any term or condition of this Amended and Restated Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or\nacts specifically referred to therein. 8.3 Severability. Each provision herein will be treated as a ____________ separate\nand independent clause and unenforceability of any one clause will in no way impact the enforceability of any other\nclause. Should any of the provisions in this Amended and Restated Agreement be found to be unreasonable or invalid by\na court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of\nthat jurisdiction. 8.4 Applicable Law and Jurisdiction. This Amended and Restated\n_______________________________\nAgreement, and Employee's employment hereunder, shall be construed according\nto the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this Amended and Restated\nAgreement shall lie in the state and federal courts located in Oregon. 8.5 Prior Agreement Remains Fully Valid and\nEnforceable. This ___________________________________________________ Amended and Restated Agreement\ndoes not supersede the Prior Agreement except to the extent that the terms of this Amended and Restated Agreement\nconflict with the terms of the Prior Agreement, in which case the terms of this Amended and Restated Agreement shall\ncontrol. Other than with respect to the terms that conflict with this Amended and Restated Agreement, the terms of the\nPrior Agreement remain fully valid and enforceable. Employee /s/ Mark G. Parker By:\n_______________________________\nName: Mark G. Parker NIKE, Inc. /s/ Philip H. Knight By:\n_______________________________\nName: Philip H. Knight Title: Chairman of the Board
d2cedafb5d6fc0a7a2f4693f652606ef.pdf	effective_date jurisdiction party term	EX-10 .5 8 v374814_ex10-5 .htm EXHIBIT 10.5\nCONFIDENTIAL SALES REPRESENTATION AND\nNON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT\nThis Agreement (“Agreement”), dated April 7, 2014, will constitute a Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nby and between Integrated Drilling Equipment Holdings Corp. (“IDE”) (hereinafter referred to as “Company”) and Offshore and Marine\nHoldings LLC (the “Representative”).\nRECITALS:\nWHEREAS, Company designs, manufactures, sells and/or leases oil and gas drilling rigs and related equipment; and\nWHEREAS, the Representative is the former Chief Executive Officer of Company, a member of the board of directors of the Company and\ncurrently assists in the marketing and sale of drilling equipment; and\nWHEREAS, the Company wishes to appoint and the Representative agrees to accept appointment as an independent sales and marketing\nconsultant for all products and services manufactured or otherwise provided by the Company; and\nWHEREAS, each Party is willing to furnish Confidential Information (as defined below) to the other Party in connection with and subject to the\nterms and conditions of this Agreement; and\nWHEREAS, in order to facilitate the Company’s business in the Areas covered by this Agreement, Representative is willing to introduce\nCompany to the customers;\nNOW, THEREFORE, for and in consideration of the foregoing and the covenants and agreements set forth in this Agreement, the Parties,\nintending to be legally bound, do hereby agree as follows:.\n1. Products covered by the Agreement (“Products”).\nA. Complete drilling rig packages and systems.\nB. Drilling rig component products manufactured by the Company including, but not limited to, Mast, Drawworks, Substructures,\nMud Pumps, Rotary Tables, SCR Drive Systems, AC VFD Systems, Equipment Installations, Fabrication, and other products and\nservices provided and manufactured by the Company.\n2. Areas covered by the Agreement (“Area”).\nA. Representative will have non-exclusive rights for the Area defined in Appendix A of this Agreement, except for specific accounts\nor areas specifically excluded by the Company which may be added or subtracted from Appendix A from time to time by the\nCompany in its sole discretion. Any exceptions or exclusions will be identified by the Company and notified to the Representative\nin writing. However, any specific projects or sales opportunities introduced by the Representative to the Company will become the\nexclusive property of the Representative until cancelled by mutual agreement of Representative and Company.\nB. Conflicts. In areas that may be assigned to and covered by a different representative, the Company will attempt to advise the\nRepresentative of any potential conflict and reduce potential conflicts.\n3. Services.\nThe Representative and Company agree that the Services are to be performed by the Representative acting solely as an independent\ncontractor on behalf of the Company. The parties agree that the Representative will provide the following minimum Services for the\nCompany, all at the direction and request of the Company:\nA. Obtain information relating to the requirements of customers for the Company’s Products.\nB. Advise, assist and consult with the Company in the proper preparation and submittal of Company’s response to any tenders or other requests\nfor the sale or lease of Products.\nC. Advise, assist and consult with the Company with respect to negotiations relating to the award of a contract for the purchase or lease of\nProducts.\nD. Provide general advice and counsel as well as specific assistance pertaining to local matters which would affect the execution of the contract,\naward and performance of the work relating to the contract.\nE. Assist the Company, to the extent possible, with help in order to Secure necessary permits, bonds and guarantees including, but not limited\nto, customs, importation and exportation permits for the Products and related equipment required by the contract as well as any other local\ngovernmental permits necessary or desirable in connection with importation, operation and exportation of the Products in or from the area\ndefined in Appendix A ( cost of the permit, bond or guarantee fees actually incurred is for the account of Company).\nF. Assist in obtaining any work permits required for local or foreign personnel to work in the Territory to perform any contract. Any associated\ncost will be reimbursed to the Representative by the Company.\n2\nG. Provide assistance and services in dealing with representatives of the customers and their affiliates.\nH. Provide such assistance and advice as may be reasonably requested by Company relating to facilitating communications between the\nCompany and the customers throughout the term of any contracts.\nI. Notify the Company of any additional potential projects or sales or leases of Products for the customers.\nJ. Provide such other services as Company may reasonably determine from time to time may be necessary or helpful in connection with its\noperations relating to the contracts.\nK. Assist the Company and the Customer to establish payment terms for any Products that are agreeable to the Company and the customer.\nL. Assist in collection of payments and amounts due from customer and assist in resolving any disputes relating thereto.\n4. Commission payment and terms.\nA. The Company agrees to pay the Representative a commission of 1%, based upon the final net selling price of any products and\nservices by the Company to a Customer, denominated and payable in U.S. Dollars, as set forth in Appendix B of this Agreement for\nspecific projects. Typically, the commission will be set by Company for each project and will be based upon the net sales price of\nany Products sold, by the Company to a customer. For the avoidance of doubt, the net selling price will be exclusive of any\nshipping/freight charges, insurance, interest, travel and living expenses, taxes or other similar costs reimbursed to the Company.\nCompany reserves the right to set a specific commission basis for each project.\nB. Reduction of commissions. In certain cases, it may be necessary for the Company to reduce the selling price in order to obtain an\norder. In this event, the Company and the Representative both agree to a proportional reduction of the commission proportional to\nthe reduction in selling price.\nC. Excess commissions. In some cases, the Representative may have an opportunity to earn more than the basic commission as\ndefined in Appendix B. In these cases, the Representative and the Company will agree upon any excess compensation in advance of\nthe sale or lease. The Company reserves the right to set any (or no) specific excess commission.\n3\nD. Payment of commissions. Payment of commissions will be paid on a pro-rata basis to the Representative based on the payment\nterms accepted by the Company from the end user/customer. All commissions will be paid to the Representative within ten (10)\ndays after receipt of the Customer’s payment by the Company.\nE. Cancellations. In cases of cancellations, the Company will be under no obligation to pay unearned commissions to the\nRepresentative except for payments received by the Company that are not refunded to the end user/customer. In cases where\ncancellations require a refund of payments made to the Company, the Representative agrees to refund any commissions received\nfrom the Company that have been paid by the Company to the Representative associated with such refund of payments.\nF. Restricted Customers. The Representative shall not be entitled to commissions for any sales by the Company to (i) any customers to\nwhich the Company has made sales of any kind during the two-year period ending on the date hereof or (ii) the customers set forth\non Appendix C (the “Restricted Customers”) even in the event that the Representative, directly or indirectly, facilitates or assists in\nsuch sales. Prior to contacting any customer, the Representative shall notify the Company that he intends to contact such customer\nand shall only contact such customer with the prior written consent of the Company.\n5. Acceptance of sales/contracts.\nThe Company is the sole authority for accepting or rejecting any prospective sales brought in by the Representative. The Representative\nhas no authority to contractually or otherwise bind the Company in any manner. The Representative shall not be permitted to quote\nprices that deviate from the Company’s current price list without the prior written approval of the Chief Executive Officer and the Chief\nFinancial Officer of the Company.\n6. Expenses.\nThe Representative and the Company each agree to pay its own expenses incurred in the normal course of business and in execution of\nthis contract, unless agreed otherwise in writing or in this Agreement.\n7. Product Representation.\nThe Representative hereby agrees to represent the Company and the Products and Services provided by the Company and not to\nrepresent products or enter into a representation relationship which would compete with the Products and Services that are the subject of\nthis Agreement, provided that the Representative shall be free to sell used drilling equipment and other used products, provided further\nthat the Company shall have a right of first refusal to engage in any refurbishment-related work on used equipment or products sold by\nthe Representative.\n4\n8. Taxes.\nEach party shall pay their own sales, use, franchise, income or other taxes.\n9. Documentation, sales and marketing and other assistance.\nThe Company will provide the Representative with all marketing data necessary including drawings, literature, contract preparation,\nquality assurance/quality control manuals and other sales, marketing and engineering as necessary and reasonably required by the\nRepresentative in the normal course of business of representing the Company. The Company will assist the Representative with all\nreasonable requests for assistance from the sales, engineering, production or other departments of the Company, on the same basis as the\nCompany provides such support for all of its sales representatives.\n10. General Business Ethics.\nA. The Representative represents and warrants that it is familiar with relevant laws in the assigned Area, and that neither the receipt of\nfees under this Agreement nor the performance by the Company or the Representative of obligations and Services under this\nAgreement is in any respect a violation of applicable laws, rules, orders, prohibitions, or regulations in the assigned Area. The\nRepresentative shall comply in all respects with all applicable laws in the assigned Area dealing with bribery and corruption, as\nmay be amended from time to time.\nB. The Representative has not and will not offer, promise or provide any thing of value, directly or indirectly, to any Government\nOfficial, or any other person or entity, for the purpose of influencing any decision, action or inaction in order to secure or maintain\nan improper advantage in connection with or relating to the subject matter of this Agreement or any supplement or amendment\nhereto, or in order to direct an improper advantage to any other person or entity or otherwise act in violation of the Foreign Corrupt\nPractices Act (the “FCPA”) of the United States of America. The offer, promise or provision of any thing of value proscribed by\nthis paragraph is a “Prohibited Payment.”\nC.\n“Government Official,” as that term is used throughout this Article 10, includes any official, employee or representative of any\ngovernment (or agency, instrumentality, or company owned or controlled by any government), any political party or employee\nthereof, or any candidate for political office.\n5\nD. If the Representative receives a request for a Prohibited Payment in connection with or relating to the subject matter of this\nAgreement or any supplement or amendment hereto, then the Company must be notified immediately.\nE. The Representative agrees and certifies that it is familiar with, is in compliance with, and will continue to comply strictly with all\napplicable anti-corruption laws and regulations and will not engage in or support any occurrence of bribery or other corrupt\npractices.\nF. The Representative shall not do business with any person or third-party entity where it knows or suspects the existence of any\nillegal, unethical or questionable practices by such person or third-party entity, its officers, employees or agents.\nG. All financial transactions by Representative hereunder shall be recorded in a timely, complete and accurate manner in accordance\nwith generally accepted accounting principles consistently applied. Representative invoices and supporting documentation, as well\nas all other documents and accounting entries, shall not be false, fictitious or intentionally misleading in any way. The\nRepresentative shall sufficiently document all payments and keep appropriate receipts. The Representative shall make available to\nthe Company any invoices or records corresponding to such payments at the Company’s request upon reasonable notice.\nH. The Company shall have reasonable access to the Representative’s books and records pertaining to activities for or on behalf of the\nCompany, and the right to audit these records on demand. The Company may elect to designate a third party to conduct such an\naudit. The Company may, inspect the Representative’s premises. The Representative shall fully cooperate in any due diligence or\naudit conducted by or on behalf of the Company. Any associated cost will be for the account of The Company.\nI. Upon its discovery of a breach of any of the representations and warranties, or any other provision of this Agreement, the\nRepresentative shall immediately report such breach to the Company.\nJ. The Representative shall notify the Company if, at any time during the course of this Agreement, the Representative becomes\naware of any change of circumstances that could materially impact the Representative’s performance under this Agreement.\n6\n11. Compliance with FCPA\nA. The Representative represents and warrants that, in connection with the business to be conducted under this Agreement, no\npayment has been made, and no payment will be made, by Representative or by any of its officers, employees, agents or subsidiary\nor affiliated companies to any officer, official or employee (or to any agent or other person acting on behalf of such a person) of any\nnation, national company or political Party in violation of the Foreign Corrupt Practices Act (the "FCPA") of the United States of\nAmerica that prohibits payment or giving of anything of value, either directly or indirectly, by an American company to an official\nof a foreign government for the purpose of influencing an act or decision in his or her official capacity, or inducing that official to\nuse his or her influence with the foreign government, to assist a company in obtaining or retaining business for, or with, or directing\nbusiness to, any person. The Representative further represents and warrants that it shall not undertake any action which is in\nviolation of the anti-bribery provision of the OECD. This Agreement shall automatically terminate without notice upon Company\nlearning of any violation of this clause, and the Company shall have no further obligations to amounts owing, or otherwise, under\nthis Agreement from and after the date of said violation. Furthermore, the Representative agrees to defend, indemnity and hold the\nCompany harmless from and against any claims, actions or causes of action for damages, fines, penalties, (including interest\nthereon and attorney fees) arising out of any violation of this clause. At the request of Company or at least annually, the\nRepresentative shall provide a certification in a form substantially similar to Schedule 1, attached to and incorporated herein by\nreference.\nB. Company warrants that it will not knowingly request any service from Representative, which might constitute a violation of the\napplicable laws of The United States of America or any national or local government having jurisdiction over the Parties, and no\nofficer or employee of Company has authority to give directions to Representative, which is contrary to the laws of The United\nStates of America or any national or local government having jurisdiction over the Parties.\n12. Conformity with Local Laws\nEach Party agrees to comply with all applicable laws, orders, regulations, directions, restrictions and limitations of the governments\n(“Laws”) having jurisdiction of the Parties hereto and over the Services. Each Party agrees to defend, indemnify and hold the other\nParty harmless from and against any claims, actions or causes of actions for damages, penalties, fines or otherwise (including interest\nthereon and attorney fees) for their respective violation of the Laws.\n7\n13. Representations of Representative\nThe Representative represents and warrants to the Company that:\n(a)\nThe Representative (i) is a corporation or limited liability company duly organized, validly existing and in good standing under\nthe laws of the jurisdiction of its incorporation; (ii) has its principal place of business located at its address set forth on the\nsignature page hereof; (iii) has all requisite corporate or other power, and has all material governmental licenses,\nauthorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be\nconducted; and (iv) is qualified to do business and is in good standing in all jurisdictions in which the services required to be\nperformed by it under this Agreement make such qualifications necessary.\n(b)\nThere are no legal or arbitral proceedings or any proceedings by or before any governmental or regulatory authority or agency,\nnow pending or (to the knowledge of the Representative) threatened against the Representative which, if adversely determined,\ncould (either individually or in the aggregate) have a Material Adverse Effect (as hereafter defined). For purposes hereof, the\nterm “Material Adverse Effect” means a material adverse effect on (i) the ability of the Representative to perform its services\nhereunder, (ii) the validity or enforceability of this Agreement, or (iii) the rights and remedies of the Company hereunder.\n(c)\nThe Parties have all necessary corporate and other power, authority and legal right to execute, deliver and perform their\nrespective obligations hereunder; the execution, delivery and performance by the Parties of this Agreement have been duly\nauthorized by all necessary corporate and other action on their part; and this Agreement has been duly and validly executed by\nthe Representative and Company and constitutes its legal, valid and binding obligation, enforceable against the Parties in\naccordance with its terms.\n14. Non-disclosure agreement.\nA Party receiving Confidential Information may also be referred to herein as a “Recipient,” and a Party disclosing Confidential\nInformation may also be referred to herein as a “Discloser.”\n8\nAs used in this Agreement, “Confidential Information” shall mean information, technical data or know-how disclosed by Discloser or\nany of Discloser’s employees, agents, affiliates, contractors or representatives (each a “Discloser Representative” and collectively, the\n“Discloser Representatives”) to Recipient or any of Recipient’s employees, agents, affiliates, contractors or representatives (each a\n“Recipient Representative” and collectively, the “Recipient Representatives”), including, but not limited to: customer/supplier lists and\nidentities, agreements, characteristics, formulations, specifications, sales and marketing information, sales, figures, pricing and cost\ninformation, marketing plans and business plans, forecasts, financial information, budgets, databases, computer programs, software\n(whether in object or source code), research papers, projections, practices, procedures, processes, routines, formulae, trade secrets,\nideas, innovations, inventions, technology, manufacturing know-how, machinery, drawings, photographs, equipment, devices, tools,\ndiscoveries, improvements, research or development and test results, data, formats, plans, sketches, models, any intellectual property,\npatents, trademarks, and copyrights and applications therefore, all rights and information necessary to produce and market Discloser’s\nproducts or to conduct the business of Discloser as currently conducted, or which pertains in any manner to subjects or knowledge of\nDiscloser’s business or operation, or the information, tangible or intangible, owned, developed or possessed by Discloser, whether or not\nmarked as “confidential,” and any other information or procedures that are treated as confidential by Discloser or its affiliates, suppliers\nor customers. Confidential Information shall include all such information that has been or may hereafter be provided, shown to, or\nreviewed by Recipient or any Recipient Representative, irrespective of the manner in which such information is communicated, and also\nincludes all notes, analyses, compilations, studies, summaries and other material prepared by Recipient or any Recipient Representative\ncontaining or based, in whole or in part, on any information included in any of the foregoing. Confidential Information also includes\ninformation of third parties in possession of Discloser that Discloser is obligated to maintain in confidence. Confidential Information\nsubject to this Agreement may be in intangible form, such as unrecorded knowledge, ideas or conceptions or information communicated\norally or by visual observation, or may be embodied in tangible form, such as a document. For purposes of this Agreement, the term\n“document” includes written memoranda, drawings, training materials, specifications, notebook entries, photographs, graphic\nrepresentations, firmware, computer information or software, information communicated by other electronic or magnetic media, or\nmodels.\nA. Notwithstanding the provisions of this Section 11 of the Agreement or any other provision of this Agreement, Confidential\nInformation” shall not include any of the following, even if marked or designated “Confidential”:\ni. Information that Recipient can substantiate was known by Recipient prior to disclosure by Discloser or any Discloser\nRepresentative to Recipient or any Recipient Representative under this Agreement;\nii. Information that was disclosed to Recipient or any Recipient Representative by a third party not known by Recipient to be\nunder an obligation of confidentiality with respect to such information;\niii. Information that is or becomes generally available to the public through no fault of Recipient or any Recipient\nRepresentative in breach of this Agreement;\n9\niv. Information required to be disclosed by judicial mandate or other requirement of applicable law, provided that Recipient\ncomplies with the provisions of Section 11.F. of this Agreement; or\nv. Information that is independently developed by Recipient or any Recipient Representative without use of or reference to\nany of Discloser ’s Confidential Information and without breach by Recipient or any Recipient Representative of any\nconfidentiality agreement or obligation to Discloser, as evidenced by Recipient’s written records.\nB. With respect to Confidential Information disclosed by Discloser or any Discloser Representative to Recipient or any Recipient\nRepresentative, Recipient shall, and shall cause each Recipient Representative to:\ni. receive, review, regard, preserve, hold and treat all Confidential Information as secret and confidential and to use its best\nefforts to prevent disclosure by any Recipient Representative, directly or indirectly, to any person or entity that does not\nreasonably need to know the Confidential Information for the specific purpose relating to the Services provided to the\nCompany or the Products;\nii. refrain from using any Confidential Information except for the limited purpose of furthering the Services to be provided\nrelated to the transactions for the Products;\niii. take all necessary and appropriate steps to maintain the confidentiality of any Confidential Information disclosed to\nRecipient or any Recipient Representative, including ensuring the confidentiality of any Confidential Information provided\nto the Recipient Representatives and any successors or assigns of any of them, including without limitation, entering into\nconfidentiality agreements with such persons or entities in a form substantially similar to this Agreement or other\nagreements pursuant to which such persons or entities agree to be bound by the terms and conditions of this Agreement as\nif such persons or entities were Recipient;\niv. Take all necessary and appropriate steps to prevent use of the Confidential Information in any way that would violate\nfederal or state securities or other applicable laws;\nv. Refrain from copying or duplicating, in any manner whatsoever except to the extent reasonably necessary for the\nfurtherance of the transactions involving the Products or as otherwise permitted herein, Confidential Information without\nthe express written permission of Discloser;\n10\nvi. Refrain from referring, orally or in writing, to Discloser or the Transactions in any press releases, promotional material,\npresentations to third parties (other than Discloser), in business resumes, or in any other information provided to third\nparties, without the prior written consent of Discloser;\nvii. Refrain from discussing or referring to any findings, conclusions, recommendations or the underlying data thereof with\nany third party (other than Discloser) arising out of any Confidential Information or the transactions involving the Products\nor the Services provided to the Company, without the prior written consent of Discloser;\nviii. Use the Confidential Information solely for the purpose of furthering the Transactions and not to use any of the\nConfidential Information for the benefit of any person or entity other than Discloser without the prior written consent of\nDiscloser; and\nix. With respect to any equipment, component, software or other items sold, leased, loaned or otherwise delivered by\nDiscloser or any Discloser Representative to Recipient or any Recipient Representative in connection with the Services or\nthe Products, refrain from reverse engineering, disassembling, decompiling or otherwise analyzing the physical\nconstruction of any such items.\nC. Recipient may only disclose the Confidential Information to Recipient’s Representatives having a bona fide need to know the\nConfidential Information in the course of performing their duties in connection with the Services or Products. Recipient will\nsegregate or otherwise maintain Confidential Information so as to prevent any commingling of the same with the confidential\nproprietary materials of others. In the event of any unauthorized disclosure of Confidential Information, Recipient shall notify\nDiscloser immediately. Recipient shall be fully responsible for and accountable to Discloser for any damages Discloser or any\naffiliate of Discloser suffers arising out of or related to any disclosure or use of Confidential Information in breach of this\nAgreement by Recipient or any Recipient Representative and shall, at Recipient’s sole cost and expense, take all reasonably\nnecessary measures (including, but not limited to, court proceedings) to restrain such persons or entities from unauthorized\ndisclosure or use of Confidential Information.\n11\nD. If either Party determines that it shall not proceed with the Services pursuant to this Agreement, such Party will promptly notify the\nother Party of such determination. Recipient further agrees that upon a determination by either Party not to proceed with the\nServices, upon termination of this Agreement pursuant to Section 20 of this Agreement or upon written request of Discloser,\nRecipient will promptly (a) return all Confidential Information and all records, notes, and other written, printed, computer\ngenerated or other materials in its possession pertaining to the Confidential Information and not retain copies, extracts or other\nreproductions of such materials; (b) destroy all documents, memoranda, notes and other writings (whether in electronic or hard\ncopy form) prepared by Recipient or any Recipient Representative based upon or incorporating any Confidential Information\nreceived from Discloser or any Discloser Representative, including all documents containing any abstracts or excerpts of any\nConfidential Information; and (c) certify in writing to Discloser that Recipient has complied with its obligations hereunder. The\nreturn or destruction of materials does not relieve Recipient from complying with the other terms and conditions of this Agreement.\nE. Notwithstanding any other provision of this Agreement, the Parties agree that:\ni. All rights to Confidential Information disclosed pursuant to this Agreement are reserved to and retained by Discloser, and\nDiscloser shall be and remain free to disclose or provide the Confidential Information to whomever in any manner\nDiscloser chooses;\nii. Except as expressly provide in Section 15 below, nothing in this Agreement will diminish or restrict in any way the rights\nthat each Party has to develop its products, services and business or otherwise make available its products and services to\nany customer or third party in the ordinary course of its business;\niii. No license or conveyance of any rights or ownership is granted or implied by this Agreement or the disclosure of any\nConfidential Information hereunder, and Discloser expressly reserves any and all rights that it may have in and to the\nConfidential Information;\niv. No license is hereby granted, directly or indirectly, under any know-how, including any patent, invention, discovery, idea,\ncopyright or other intellectual or industrial property right now or in the future held, made, obtained or licensable by\nDiscloser; and\nv. The timing of access and the nature and extent of the Confidential Information to be made available to Recipient will be at\nthe discretion of Discloser.\n12\nF. In the event Recipient or any Recipient Representative is served with an administrative or court subpoena or order requiring any\nConfidential Information to be disclosed, Recipient shall immediately thereafter notify Discloser orally and in writing of the fact of\nsuch service, the information requested and the time to respond thereto, and in all events, shall use its best efforts to provide\nDiscloser with such notice sufficiently in advance of the deadline to respond to allow Discloser sufficient time to challenge such\nsubpoena or order if Discloser elects to do so. Recipient shall cooperate fully with Discloser, at Discloser’s expense, in challenging\nany subpoena or order requiring the disclosure of Confidential Information. Should Discloser decide not to challenge any such\nsubpoena or order, then Recipient or the Recipient Representative, as applicable, may disclose such information as, in the\nreasonable judgment of Recipient’s counsel, is required to be disclosed under such subpoena or order. Discloser shall advise\nRecipient within five (5) business days of receipt of notice thereof whether Discloser intends to challenge the subpoena or order.\nG. Recipient hereby acknowledges and agrees that neither Discloser nor any Discloser Representative makes any representations or\nwarranties whatsoever, express or implied, as to the accuracy, completeness or correctness of any Confidential Information supplied\nhereunder, nor shall any such representations or warranties be implied. Neither Discloser nor Discloser’s officers, directors or\nshareholders nor any of the Discloser Representatives shall have any liability whatsoever to Recipient or any Recipient\nRepresentative arising out of or resulting from the use of or reliance on any Confidential Information. Discloser retains the right to\ndetermine, in its sole discretion, what information, properties and personnel it wishes to make available to Recipient hereunder.\n15. The Parties acknowledge that in order to facilitate the Services, it may be necessary for Representative to introduce the Customers to the\nCompany for direct discussions regarding the sales of products. The Company hereby expressly agrees not to, directly or indirectly\nthrough one or more of the Company’s affiliates or intermediaries, take any action for sole purpose of depriving the Representative of\nany commission that would otherwise be payable with respect to such sales.\n16. Nothing in this Agreement shall be construed as constituting any offer by, or as creating any obligation on the part of, either Party to\nenter into any transaction with the other or with any other person or entity.\n17. The Parties agree that, because an award of money damages may be inadequate for any breach of Section 11 of this Agreement, and any\nsuch breach may cause the non-breaching Party irreparable harm, in the event of a breach or threatened breach of the terms of this\nAgreement by a Party, the non-breaching Party shall be entitled, without requirement of posting a bond or other security, to an\ninjunction or decree of specific performance prohibiting any such breach or disclosure or misuse of any Confidential Information. In\naddition to injunctive relief, the non-breaching Party shall have all other rights and remedies afforded it by law.\n13\n18. This Agreement shall be construed, governed by, enforced and interpreted, and the relationship between the Parties determined in\naccordance with, the laws of the State of Texas without giving effect to any choice or conflict of laws rules, provisions or principles\n(whether of the State of Texas or any other jurisdiction) the application of which would result in the application of the laws of any\njurisdiction other than the State of Texas.\n19. The Parties will attempt in good faith to resolve any dispute arising out of or relating to this Agreement or the construction\ninterpretation, performance, breach, termination, enforceability or validity hereof (each a “Dispute”) through discussions between their\nrespective representatives. Any Dispute that cannot be resolved through discussions between the Parties’ respective representatives\narising out of or relating to this Agreement, including the annexes and schedules hereto, will be fully and finally settled by arbitration in\naccordance with the provisions set forth in Section 13 of the Representative’s Employment Agreement with the Company, dated as of\nOctober 19, 2012. Notwithstanding this provision, nothing contained herein shall in any way be deemed to prohibit the Company or the\nRepresentative from seeking temporary equitable relief from a court of competent jurisdiction in the event of a breach or threatened\nbreach by the other party of this Agreement.\n20. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be (i) sent by an overnight\ncourier service that provides proof of receipt, (ii) mailed by registered or certified mail (postage prepaid, return receipt requested) or (iii)\ntelecopied to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):\nIf to Company:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North, Building 6\nSpring, Texas, USA 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\nIf to Representative:\nOffshore and Marine Holdings LLC\nStephen D. Cope\n7303 Augusta Drive\nSpring, TX 77389\nTel: (713) 253-0130\nIf this Agreement provides for a designated period after a notice within which to perform an act, such period shall commence on the\ndate of receipt or refusal of the notice. If this Agreement requires the exercise of a right by notice on or before a certain date or within a\ndesignated period, such right shall be deemed exercised on the date of delivery to the courier service, tele-copying or mailing of the\nnotice pursuant to which such right is exercised.\n14\n21. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior\nrepresentations, agreements and understandings, whether oral or written, between the Parties with respect to the subject matter hereof.\nNo representations or warranties have been made relating to the subject matter hereof other than those expressly set forth in this\nAgreement. This Agreement may not be amended, modified or supplemented except by means of a written instrument designated as\nsuch and executed by an authorized officer of each of the Parties.\n22. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court, tribunal or other forum of competent\njurisdiction for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement\n(including, without limitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid,\nillegal or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision will be deemed reformed to the extent\nnecessary to conform to applicable Law and to give maximum effect to the intent of the Parties, or, if that is not possible, such provision\nshall be deemed severed from this Agreement; and (c) to the fullest extent possible, the provisions of this Agreement (including, without\nlimitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid, illegal or unenforceable,\nthat is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held\ninvalid, illegal or unenforceable.\n23. Either Party hereto may terminate this Agreement by thirty (30) days written notice to the other Party at its address specified herein, but\nno such termination shall affect obligations already in effect.\n24. This Agreement is personal to each of the Parties and may not be assigned or otherwise transferred, in whole or in part, by either Party\nwithout the prior written consent of the other Party.\n25. No failure or delay by a Party in exercising its rights, powers or privileges under this Agreement shall constitute a waiver thereof, nor\nshall any single or partial exercise of such rights, powers or privileges preclude any further exercise thereof. No waiver of any provision\nshall be binding upon a Party unless it is in writing and signed by an authorized officer of such Party.\n15\n26. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original copy of this Agreement, but\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The Parties may sign and deliver this\nAgreement by facsimile transmission or by electronic mail in “portable document format.” Each Party agrees that the delivery of this\nAgreement by facsimile or by electronic mail in “portable document format” shall have the same force and effect as delivery of original\nsignatures, and that each Party may use such facsimile or electronic mail signatures as evidence of the execution and delivery of this\nAgreement by all Parties to the same extent that an original signature could be used.\n[SIGNATURES ON FOLLOWING PAGE]\n16\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nIntegrated Drilling Equipment Holdings Corp.\nBy (Print Name): N. Michael Dion\nSignature: /s/ Michael Dion\nTitle: CFO\nDate: April 7, 2014\nOffshore and Marine Holdings LLC\nBy (Print Name): Steve Cope\nSignature: /s/ Steve Cope\nTitle: President/CEO\nDate: April 7, 2014\nSignature Page to Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nAPPENDIX A\nREPRESENTATION AREA.\nThe Representation Area is the United States of America and Mexico. Additional areas and projects may be determined on a case by case basis in\nthe Company’s discretion.\nAPPENDIX B\nSPECIFIC PROJECT AND COMMISSION BASIS\n(Specific Projects, details and commission basis are to be determined on a case by case basis. The initial commission to be included will\nbe 1% of the net selling price of any order or project)\nAPPENDIX C\nRESTRICTED CUSTOMERS.\n·\nLas Isla*\n·\nBig Dog Drilling*\n·\nIHSA\n·\nSavannah Drilling\n·\nLewis\n·\nSidewinder\n·\nSavanna\n·\nNoram\n·\nEurasia Drilling\n·\nIHSA\n·\nTacker\n·\nPEMSA*\n·\nGPA\n·\nLatina*\n·\nGSM*\n·\nGoimar*\n·\nCentral*\n·\nEnsign\n·\nFelderhoff\n·\nArcher*\n·\nLukoil\n·\nSevmash\n·\nGazprom\n·\nRosneft\n·\nSidewinder\n·\nEnsign\n·\nRUS Industrial\n·\nCRC Evans\n·\nBaker Hughes\n·\nOklahoma Rig Co.\n·\nShale Pumps\n·\nServas Energy\n·\nAztec Drilling\n·\nIndependence Drilling\n·\nSidewinder\n·\nPatterson UTI\n·\nNabors\n·\nEnsign\n·\nScana\n·\nEnergy Water Solutions\n·\nNDIL\n*Projects undertaken by entities identified with an asterisk shall not be subject to the restrictions placed on Restricted Customers for any such\nprojects or PEMEX licitations that are received, initiated or quoted after the date of the Company’s March 24, 2014 pipeline report. For the\navoidance of doubt, any projects that have not been quoted prior to the March 24, 2014 pipeline report and are received, initiated or quoted after\nthe March 24, 2014 pipeline report shall not be subject to the restrictions placed on Restricted Customers in Section 4(f) of this Agreement.\nSCHEDULE 1\nANNUAL CERTIFICATION OF COMPLIANCE\nFOR INTERNATIONAL\nCONSULTANTS, AGENTS AND REPRESENTATIVES\nI [•] a duly authorized representative of [•] (the “Representative”) do hereby certify for and on behalf of such company, that neither I, nor to\nmy knowledge any other person, including but not limited to every officer, director, stockholder, employee, representative and agent of\nRepresentative or its affiliates has made any offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift,\npromise to give, or authorization of the giving of anything of value to any Public Official (defined below) to obtain, retain, or direct business\nor to secure any improper advantage for myself, the Representative, Representative’s affiliates, or any affiliate in violation of any Anti-\nCorruption Laws (defined below).\n"Public Official" means any officer or employee of a government (or any department, agency, or instrumentality thereof, including, but not\nlimited to, national oil companies), a political party, or a public international organization (such as the World Bank), or any person acting in\nan official capacity for or on behalf of any such government, department, agency, or instrumentality, or for or on behalf of any public\ninternational organization, or any political party or official thereof or candidate for political office. “Anti-Corruption Laws” means the\nUnited States Foreign Corrupt Practices Act (“FCPA”) and the anti-corruption and bribery laws of the representation Area, the jurisdiction(s)\nwhere Representative and its applicable affiliates are organized, and the country (ies) where the representation Services will be performed.\nI hereby confirm and agree that should I learn of any of the prohibited activities described above, or if there are any changes in the\nownership or control of the Representative or its affiliates, I will immediately advise:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North\nBuilding 6\nSpring, Texas 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\n(Signatures on Next Page)\nI hereby confirm that neither I nor anyone else at [•] or any affiliate that is providing Services is a Public Official.\nI certify under penalty of perjury that the foregoing is true and correct.\nDate:\nBy:\nName:\nTitle:	EX-10.5 8 v374814_ex10-5.htm EXHIBIT 10.5\nCONFIDENTIAL SALES REPRESENTATION AND\nNON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT\nThis Agreement (“Agreement”), dated April 7, 2014, will constitute a Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nby and between Integrated Drilling Equipment Holdings Corp. (“IDE”) (hereinafter referred to as “Company”) and Offshore and Marine\nHoldings LL.C (the “Representative™).\nRECITALS:\nWHEREAS, Company designs, manufactures, sells and/or leases oil and gas drilling rigs and related equipment; and\nWHEREAS, the Representative is the former Chief Executive Officer of Company, a member of the board of directors of the Company and\ncurrently assists in the marketing and sale of drilling equipment; and\nWHEREAS, the Company wishes to appoint and the Representative agrees to accept appointment as an independent sales and marketing\nconsultant for all products and services manufactured or otherwise provided by the Company; and\nWHEREAS, each Party is willing to furnish Confidential Information (as defined below) to the other Party in connection with and subject to the\nterms and conditions of this Agreement; and\nWHEREAS, in order to facilitate the Company’s business in the Areas covered by this Agreement, Representative is willing to introduce\nCompany to the customers;\nNOW, THEREFORE, for and in consideration of the foregoing and the covenants and agreements set forth in this Agreement, the Parties,\nintending to be legally bound, do hereby agree as follows:.\n1. Products covered by the Agreement (“Products”).\nA. Complete drilling rig packages and systems.\nB. Drilling rig component products manufactured by the Company including, but not limited to, Mast, Drawworks, Substructures,\nMud Pumps, Rotary Tables, SCR Drive Systems, AC VFD Systems, Equipment Installations, Fabrication, and other products and\nservices provided and manufactured by the Company.\nra\nA. Representative will have non-exclusive rights for the Area defined in Appendix A of this Agreement, except for specific accounts\nor areas specifically excluded by the Company which may be added or subtracted from Appendix A from time to time by the\nCompany in its sole discretion. Any exceptions or exclusions will be identified by the Company and notified to the Representative\nin writing. However, any specific projects or sales opportunities introduced by the Representative to the Company will become the\nexclusive property of the Representative until cancelled by mutual agreement of Representative and Company.\nB. Conflicts. In areas that may be assigned to and covered by a different representative, the Company will attempt to advise the\nRepresentative of any potential conflict and reduce potential conflicts.\n3. Services.\nThe Representative and Company agree that the Services are to be performed by the Representative acting solely as an independent\ncontractor on behalf of the Company. The parties agree that the Representative will provide the following minimum Services for the\nCompany, all at the direction and request of the Company:\nObtain information relating to the requirements of customers for the Company’s Products.\nAdvise, assist and consult with the Company in the proper preparation and submittal of Company’s response to any tenders or other requests\nfor the sale or lease of Products.\nAdvise, assist and consult with the Company with respect to negotiations relating to the award of a contract for the purchase or lease of\nProducts.\nProvide general advice and counsel as well as specific assistance pertaining to local matters which would affect the execution of the contract,\naward and performance of the work relating to the contract.\nAssist the Company, to the extent possible, with help in order to Secure necessary permits, bonds and guarantees including, but not limited\nto, customs, importation and exportation permits for the Products and related equipment required by the contract as well as any other local\ngovernmental permits necessary or desirable in connection with importation, operation and exportation of the Products in or from the area\ndefined in Appendix A ( cost of the permit, bond or guarantee fees actually incurred is for the account of Company).\nAssist in obtaining any work permits required for local or foreign personnel to work in the Territory to perform any contract. Any associated\ncost will be reimbursed to the Representative by the Company.\nra\nProvide assistance and services in dealing with representatives of the customers and their affiliates. Provide such assistance and advice as may be reasonably requested by Company relating to facilitating communications between the Company and the customers throughout the term of any contracts. Notify the Company of any additional potential projects or sales or leases of Products for the customers. Provide such other services as Company may reasonably determine from time to time may be necessary or helpful in connection with its operations relating to the contracts. Assist the Company and the Customer to establish payment terms for any Products that are agreeable to the Company and the customer. Assist in collection of payments and amounts due from customer and assist in resolving any disputes relating thereto. 4. Commission payment and terms.\nA. The Company agrees to pay the Representative a commission of 1%, based upon the final net selling price of any products and\nservices by the Company to a Customer, denominated and payable in U.S. Dollars, as set forth in Appendix B of this Agreement for\nspecific projects. Typically, the commission will be set by Company for each project and will be based upon the net sales price of\nany Products sold, by the Company to a customer. For the avoidance of doubt, the net selling price will be exclusive of any\nshipping/freight charges, insurance, interest, travel and living expenses, taxes or other similar costs reimbursed to the Company.\nCompany reserves the right to set a specific commission basis for each project.\nB. Reduction of commissions. In certain cases, it may be necessary for the Company to reduce the selling price in order to obtain an\norder. In this event, the Company and the Representative both agree to a proportional reduction of the commission proportional to\nthe reduction in selling price.\nC. Excess commissions. In some cases, the Representative may have an opportunity to earn more than the basic commission as\ndefined in Appendix B. In these cases, the Representative and the Company will agree upon any excess compensation in advance of\nthe sale or lease. The Company reserves the right to set any (or no) specific excess commission.\nwd\nD. Payment of commissions. Payment of commissions will be paid on a pro-rata basis to the Representative based on the payment\nterms accepted by the Company from the end user/customer. All commissions will be paid to the Representative within ten (10)\ndays after receipt of the Customer’s payment by the Company.\nE. Cancellations. In cases of cancellations, the Company will be under no obligation to pay unearned commissions to the\nRepresentative except for payments received by the Company that are not refunded to the end user/customer. In cases where\ncancellations require a refund of payments made to the Company, the Representative agrees to refund any commissions received\nfrom the Company that have been paid by the Company to the Representative associated with such refund of payments.\nF. Restricted Customers. The Representative shall not be entitled to commissions for any sales by the Company to (i) any customers to\nwhich the Company has made sales of any kind during the two-year period ending on the date hereof or (ii) the customers set forth\non Appendix C (the “Restricted Customers”) even in the event that the Representative, directly or indirectly, facilitates or assists in\nsuch sales. Prior to contacting any customer, the Representative shall notify the Company that he intends to contact such customer\nand shall only contact such customer with the prior written consent of the Company.\nAcceptance of sales/contracts.\nThe Company is the sole authority for accepting or rejecting any prospective sales brought in by the Representative. The Representative\nhas no authority to contractually or otherwise bind the Company in any manner. The Representative shall not be permitted to quote\nprices that deviate from the Company’s current price list without the prior written approval of the Chief Executive Officer and the Chief\nFinancial Officer of the Company.\nExpenses.\nThe Representative and the Company each agree to pay its own expenses incurred in the normal course of business and in execution of\nthis contract, unless agreed otherwise in writing or in this Agreement.\nProduct Representation.\nThe Representative hereby agrees to represent the Company and the Products and Services provided by the Company and not to\nrepresent products or enter into a representation relationship which would compete with the Products and Services that are the subject of\nthis Agreement, provided that the Representative shall be free to sell used drilling equipment and other used products, provided further\nthat the Company shall have a right of first refusal to engage in any refurbishment-related work on used equipment or products sold by\nthe Representative.\nra\n8. Taxes. Each party shall pay their own sales, use, franchise, income or other taxes. Documentation, sales and marketing and other assistance. The Company will provide the Representative with all marketing data necessary including drawings, literature, contract preparation, quality assurance/quality control manuals and other sales, marketing and engineering as necessary and reasonably required by the Representative in the normal course of business of representing the Company. The Company will assist the Representative with all reasonable requests for assistance from the sales, engineering, production or other departments of the Company, on the same basis as the Company provides such support for all of its sales representatives. 10. General Business Ethics. A. The Representative represents and warrants that it is familiar with relevant laws in the assigned Area, and that neither the receipt of fees under this Agreement nor the performance by the Company or the Representative of obligations and Services under this\nAgreement is in any respect a violation of applicable laws, rules, orders, prohibitions, or regulations in the assigned Area. The\nRepresentative shall comply in all respects with all applicable laws in the assigned Area dealing with bribery and corruption, as\nmay be amended from time to time.\nThe Representative has not and will not offer, promise or provide any thing of value, directly or indirectly, to any Government\nOfficial, or any other person or entity, for the purpose of influencing any decision, action or inaction in order to secure or maintain\nan improper advantage in connection with or relating to the subject matter of this Agreement or any supplement or amendment\nhereto, or in order to direct an improper advantage to any other person or entity or otherwise act in violation of the Foreign Corrupt\nPractices Act (the “FCPA”) of the United States of America. The offer, promise or provision of any thing of value proscribed by\nthis paragraph is a “Prohibited Payment.”\n“Government Official,” as that term is used throughout this Article 10, includes any official, employee or representative of any\ngovernment (or agency, instrumentality, or company owned or controlled by any government), any political party or employee\nthereof, or any candidate for political office.\nra\nIf the Representative receives a request for a Prohibited Payment in connection with or relating to the subject matter of this\nAgreement or any supplement or amendment hereto, then the Company must be notified immediately.\nThe Representative agrees and certifies that it is familiar with, is in compliance with, and will continue to comply strictly with all\napplicable anti-corruption laws and regulations and will not engage in or support any occurrence of bribery or other corrupt\npractices.\nThe Representative shall not do business with any person or third-party entity where it knows or suspects the existence of any\nillegal, unethical or questionable practices by such person or third-party entity, its officers, employees or agents.\nAll financial transactions by Representative hereunder shall be recorded in a timely, complete and accurate manner in accordance\nwith generally accepted accounting principles consistently applied. Representative invoices and supporting documentation, as well\nas all other documents and accounting entries, shall not be false, fictitious or intentionally misleading in any way. The\nRepresentative shall sufficiently document all payments and keep appropriate receipts. The Representative shall make available to\nthe Company any invoices or records corresponding to such payments at the Company’s request upon reasonable notice.\nThe Company shall have reasonable access to the Representative’s books and records pertaining to activities for or on behalf of the\nCompany, and the right to audit these records on demand. The Company may elect to designate a third party to conduct such an\naudit. The Company may, inspect the Representative’s premises. The Representative shall fully cooperate in any due diligence or\naudit conducted by or on behalf of the Company. Any associated cost will be for the account of The Company.\nUpon its discovery of a breach of any of the representations and warranties, or any other provision of this Agreement, the\nRepresentative shall immediately report such breach to the Company.\nThe Representative shall notify the Company if, at any time during the course of this Agreement, the Representative becomes\naware of any change of circumstances that could materially impact the Representative’s performance under this Agreement.\nra\n11. Compliance with FCPA\nA. The Representative represents and warrants that, in connection with the business to be conducted under this Agreement, no\npayment has been made, and no payment will be made, by Representative or by any of its officers, employees, agents or subsidiary\nor affiliated companies to any officer, official or employee (or to any agent or other person acting on behalf of such a person) of any\nnation, national company or political Party in violation of the Foreign Corrupt Practices Act (the "FCPA") of the United States of\nAmerica that prohibits payment or giving of anything of value, either directly or indirectly, by an American company to an official\nof a foreign government for the purpose of influencing an act or decision in his or her official capacity, or inducing that official to\nuse his or her influence with the foreign government, to assist a company in obtaining or retaining business for, or with, or directing\nbusiness to, any person. The Representative further represents and warrants that it shall not undertake any action which is in\nviolation of the anti-bribery provision of the OECD. This Agreement shall automatically terminate without notice upon Company\nlearning of any violation of this clause, and the Company shall have no further obligations to amounts owing, or otherwise, under\nthis Agreement from and after the date of said violation. Furthermore, the Representative agrees to defend, indemnity and hold the\nCompany harmless from and against any claims, actions or causes of action for damages, fines, penalties, (including interest\nthereon and attorney fees) arising out of any violation of this clause. At the request of Company or at least annually, the\nRepresentative shall provide a certification in a form substantially similar to Schedule 1, attached to and incorporated herein by\nreference.\nB. Company warrants that it will not knowingly request any service from Representative, which might constitute a violation of the\napplicable laws of The United States of America or any national or local government having jurisdiction over the Parties, and no\nofficer or employee of Company has authority to give directions to Representative, which is contrary to the laws of The United\nStates of America or any national or local government having jurisdiction over the Parties.\n12. Conformity with Local Laws\nEach Party agrees to comply with all applicable laws, orders, regulations, directions, restrictions and limitations of the governments\n(“Laws”) having jurisdiction of the Parties hereto and over the Services. Each Party agrees to defend, indemnify and hold the other\nParty harmless from and against any claims, actions or causes of actions for damages, penalties, fines or otherwise (including interest\nthereon and attorney fees) for their respective violation of the Laws.\nra\n13. Representations of Representative 14. The Representative represents and warrants to the Company that: (a)\n(b)\n(©\nThe Representative (i) is a corporation or limited liability company duly organized, validly existing and in good standing under\nthe laws of the jurisdiction of its incorporation; (ii) has its principal place of business located at its address set forth on the\nsignature page hereof; (iii) has all requisite corporate or other power, and has all material governmental licenses,\nauthorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be\nconducted; and (iv) is qualified to do business and is in good standing in all jurisdictions in which the services required to be\nperformed by it under this Agreement make such qualifications necessary.\nThere are no legal or arbitral proceedings or any proceedings by or before any governmental or regulatory authority or agency,\nnow pending or (to the knowledge of the Representative) threatened against the Representative which, if adversely determined,\ncould (either individually or in the aggregate) have a Material Adverse Effect (as hereafter defined). For purposes hereof, the\nterm “Material Adverse Effect” means a material adverse effect on (i) the ability of the Representative to perform its services\nhereunder, (ii) the validity or enforceability of this Agreement, or (iii) the rights and remedies of the Company hereunder.\nThe Parties have all necessary corporate and other power, authority and legal right to execute, deliver and perform their\nrespective obligations hereunder; the execution, delivery and performance by the Parties of this Agreement have been duly\nauthorized by all necessary corporate and other action on their part; and this Agreement has been duly and validly executed by\nthe Representative and Company and constitutes its legal, valid and binding obligation, enforceable against the Parties in\naccordance with its terms.\nNon-disclosure agreement. A Party receiving Confidential Information may also be referred to herein as a “Recipient,” and a Party disclosing Confidential Information may also be referred to herein as a “Discloser.”\fra\nAs used in this Agreement, “Confidential Information” shall mean information, technical data or know-how disclosed by Discloser or\nany of Discloser’s employees, agents, affiliates, contractors or representatives (each a “Discloser Representative” and collectively, the\n“Discloser Representatives”) to Recipient or any of Recipient’s employees, agents, affiliates, contractors or representatives (each a\n“Recipient Representative” and collectively, the “Recipient Representatives”), including, but not limited to: customer/supplier lists and\nidentities, agreements, characteristics, formulations, specifications, sales and marketing information, sales, figures, pricing and cost\ninformation, marketing plans and business plans, forecasts, financial information, budgets, databases, computer programs, software\n(whether in object or source code), research papers, projections, practices, procedures, processes, routines, formulae, trade secrets,\nideas, innovations, inventions, technology, manufacturing know-how, machinery, drawings, photographs, equipment, devices, tools,\ndiscoveries, improvements, research or development and test results, data, formats, plans, sketches, models, any intellectual property,\npatents, trademarks, and copyrights and applications therefore, all rights and information necessary to produce and market Discloser’s\nproducts or to conduct the business of Discloser as currently conducted, or which pertains in any manner to subjects or knowledge of\nDiscloser’s business or operation, or the information, tangible or intangible, owned, developed or possessed by Discloser, whether or not\nmarked as “confidential,” and any other information or procedures that are treated as confidential by Discloser or its affiliates, suppliers\nor customers. Confidential Information shall include all such information that has been or may hereafter be provided, shown to, or\nreviewed by Recipient or any Recipient Representative, irrespective of the manner in which such information is communicated, and also\nincludes all notes, analyses, compilations, studies, summaries and other material prepared by Recipient or any Recipient Representative\ncontaining or based, in whole or in part, on any information included in any of the foregoing. Confidential Information also includes\ninformation of third parties in possession of Discloser that Discloser is obligated to maintain in confidence. Confidential Information\nsubject to this Agreement may be in intangible form, such as unrecorded knowledge, ideas or conceptions or information communicated\norally or by visual observation, or may be embodied in tangible form, such as a document. For purposes of this Agreement, the term\n“document” includes written memoranda, drawings, training materials, specifications, notebook entries, photographs, graphic\nrepresentations, firmware, computer information or software, information communicated by other electronic or magnetic media, or\nmodels.\nA. Notwithstanding the provisions of this Section 11 of the Agreement or any other provision of this Agreement, Confidential\nInformation” shall not include any of the following, even if marked or designated “Confidential”:\ni. Information that Recipient can substantiate was known by Recipient prior to disclosure by Discloser or any Discloser\nRepresentative to Recipient or any Recipient Representative under this Agreement;\nii. Information that was disclosed to Recipient or any Recipient Representative by a third party not known by Recipient to be\nunder an obligation of confidentiality with respect to such information;\niii. Information that is or becomes generally available to the public through no fault of Recipient or any Recipient\nRepresentative in breach of this Agreement;\nra\niv. Information required to be disclosed by judicial mandate or other requirement of applicable law, provided that Recipient\ncomplies with the provisions of Section 11.F. of this Agreement; or\nInformation that is independently developed by Recipient or any Recipient Representative without use of or reference to\nany of Discloser’s Confidential Information and without breach by Recipient or any Recipient Representative of any\nconfidentiality agreement or obligation to Discloser, as evidenced by Recipient’s written records.\nB. With respect to Confidential Information disclosed by Discloser or any Discloser Representative to Recipient or any Recipient Representative, Recipient shall, and shall cause each Recipient Representative to: ii.\niil. iv. receive, review, regard, preserve, hold and treat all Confidential Information as secret and confidential and to use its best\nefforts to prevent disclosure by any Recipient Representative, directly or indirectly, to any person or entity that does not\nreasonably need to know the Confidential Information for the specific purpose relating to the Services provided to the\nCompany or the Products;\nrefrain from using any Confidential Information except for the limited purpose of furthering the Services to be provided\nrelated to the transactions for the Products;\ntake all necessary and appropriate steps to maintain the confidentiality of any Confidential Information disclosed to\nRecipient or any Recipient Representative, including ensuring the confidentiality of any Confidential Information provided\nto the Recipient Representatives and any successors or assigns of any of them, including without limitation, entering into\nconfidentiality agreements with such persons or entities in a form substantially similar to this Agreement or other\nagreements pursuant to which such persons or entities agree to be bound by the terms and conditions of this Agreement as\nif such persons or entities were Recipient;\nTake all necessary and appropriate steps to prevent use of the Confidential Information in any way that would violate\nfederal or state securities or other applicable laws;\nRefrain from copying or duplicating, in any manner whatsoever except to the extent reasonably necessary for the\nfurtherance of the transactions involving the Products or as otherwise permitted herein, Confidential Information without\nthe express written permission of Discloser;\n10\nvi. Refrain from referring, orally or in writing, to Discloser or the Transactions in any press releases, promotional material,\npresentations to third parties (other than Discloser), in business resumes, or in any other information provided to third\nparties, without the prior written consent of Discloser;\nvii. Refrain from discussing or referring to any findings, conclusions, recommendations or the underlying data thereof with\nany third party (other than Discloser) arising out of any Confidential Information or the transactions involving the Products\nor the Services provided to the Company, without the prior written consent of Discloser;\nviii. Use the Confidential Information solely for the purpose of furthering the Transactions and not to use any of the\nConfidential Information for the benefit of any person or entity other than Discloser without the prior written consent of\nDiscloser; and\nix. With respect to any equipment, component, software or other items sold, leased, loaned or otherwise delivered by\nDiscloser or any Discloser Representative to Recipient or any Recipient Representative in connection with the Services or\nthe Products, refrain from reverse engineering, disassembling, decompiling or otherwise analyzing the physical\nconstruction of any such items.\nC. Recipient may only disclose the Confidential Information to Recipient’s Representatives having a bona fide need to know the\nConfidential Information in the course of performing their duties in connection with the Services or Products. Recipient will\nsegregate or otherwise maintain Confidential Information so as to prevent any commingling of the same with the confidential\nproprietary materials of others. In the event of any unauthorized disclosure of Confidential Information, Recipient shall notify\nDiscloser immediately. Recipient shall be fully responsible for and accountable to Discloser for any damages Discloser or any\naffiliate of Discloser suffers arising out of or related to any disclosure or use of Confidential Information in breach of this\nAgreement by Recipient or any Recipient Representative and shall, at Recipient’s sole cost and expense, take all reasonably\nnecessary measures (including, but not limited to, court proceedings) to restrain such persons or entities from unauthorized\ndisclosure or use of Confidential Information.\n11\fra\nIf either Party determines that it shall not proceed with the Services pursuant to this Agreement, such Party will promptly notify the\nother Party of such determination. Recipient further agrees that upon a determination by either Party not to proceed with the\nServices, upon termination of this Agreement pursuant to Section 20 of this Agreement or upon written request of Discloser,\nRecipient will promptly (a) return all Confidential Information and all records, notes, and other written, printed, computer\ngenerated or other materials in its possession pertaining to the Confidential Information and not retain copies, extracts or other\nreproductions of such materials; (b) destroy all documents, memoranda, notes and other writings (whether in electronic or hard\ncopy form) prepared by Recipient or any Recipient Representative based upon or incorporating any Confidential Information\nreceived from Discloser or any Discloser Representative, including all documents containing any abstracts or excerpts of any\nConfidential Information; and (c) certify in writing to Discloser that Recipient has complied with its obligations hereunder. The\nreturn or destruction of materials does not relieve Recipient from complying with the other terms and conditions of this Agreement.\nNotwithstanding any other provision of this Agreement, the Parties agree that:\ni.  All rights to Confidential Information disclosed pursuant to this Agreement are reserved to and retained by Discloser, and\nDiscloser shall be and remain free to disclose or provide the Confidential Information to whomever in any manner\nDiscloser chooses;\nii. Except as expressly provide in Section 15 below, nothing in this Agreement will diminish or restrict in any way the rights\nthat each Party has to develop its products, services and business or otherwise make available its products and services to\nany customer or third party in the ordinary course of its business;\niii. No license or conveyance of any rights or ownership is granted or implied by this Agreement or the disclosure of any\nConfidential Information hereunder, and Discloser expressly reserves any and all rights that it may have in and to the\nConfidential Information;\niv. No license is hereby granted, directly or indirectly, under any know-how, including any patent, invention, discovery, idea,\ncopyright or other intellectual or industrial property right now or in the future held, made, obtained or licensable by\nDiscloser; and\nv. The timing of access and the nature and extent of the Confidential Information to be made available to Recipient will be at\nthe discretion of Discloser.\n12\fra\nIn the event Recipient or any Recipient Representative is served with an administrative or court subpoena or order requiring any\nConfidential Information to be disclosed, Recipient shall immediately thereafter notify Discloser orally and in writing of the fact of\nsuch service, the information requested and the time to respond thereto, and in all events, shall use its best efforts to provide\nDiscloser with such notice sufficiently in advance of the deadline to respond to allow Discloser sufficient time to challenge such\nsubpoena or order if Discloser elects to do so. Recipient shall cooperate fully with Discloser, at Discloser’s expense, in challenging\nany subpoena or order requiring the disclosure of Confidential Information. Should Discloser decide not to challenge any such\nsubpoena or order, then Recipient or the Recipient Representative, as applicable, may disclose such information as, in the\nreasonable judgment of Recipient’s counsel, is required to be disclosed under such subpoena or order. Discloser shall advise\nRecipient within five (5) business days of receipt of notice thereof whether Discloser intends to challenge the subpoena or order.\nRecipient hereby acknowledges and agrees that neither Discloser nor any Discloser Representative makes any representations or\nwarranties whatsoever, express or implied, as to the accuracy, completeness or correctness of any Confidential Information supplied\nhereunder, nor shall any such representations or warranties be implied. Neither Discloser nor Discloser’s officers, directors or\nshareholders nor any of the Discloser Representatives shall have any liability whatsoever to Recipient or any Recipient\nRepresentative arising out of or resulting from the use of or reliance on any Confidential Information. Discloser retains the right to\ndetermine, in its sole discretion, what information, properties and personnel it wishes to make available to Recipient hereunder.\n15. The Parties acknowledge that in order to facilitate the Services, it may be necessary for Representative to introduce the Customers to the 16. 17. Company for direct discussions regarding the sales of products. The Company hereby expressly agrees not to, directly or indirectly through one or more of the Company’s affiliates or intermediaries, take any action for sole purpose of depriving the Representative of any commission that would otherwise be payable with respect to such sales. Nothing in this Agreement shall be construed as constituting any offer by, or as creating any obligation on the part of, either Party to enter into any transaction with the other or with any other person or entity. The Parties agree that, because an award of money damages may be inadequate for any breach of Section 11 of this Agreement, and any such breach may cause the non-breaching Party irreparable harm, in the event of a breach or threatened breach of the terms of this Agreement by a Party, the non-breaching Party shall be entitled, without requirement of posting a bond or other security, to an injunction or decree of specific performance prohibiting any such breach or disclosure or misuse of any Confidential Information. In addition to injunctive relief, the non-breaching Party shall have all other rights and remedies afforded it by law. 13\nra\n18. 19. 20. This Agreement shall be construed, governed by, enforced and interpreted, and the relationship between the Parties determined in\naccordance with, the laws of the State of Texas without giving effect to any choice or conflict of laws rules, provisions or principles\n(whether of the State of Texas or any other jurisdiction) the application of which would result in the application of the laws of any\njurisdiction other than the State of Texas.\nThe Parties will attempt in good faith to resolve any dispute arising out of or relating to this Agreement or the construction\ninterpretation, performance, breach, termination, enforceability or validity hereof (each a “Dispute”) through discussions between their\nrespective representatives. Any Dispute that cannot be resolved through discussions between the Parties’ respective representatives\narising out of or relating to this Agreement, including the annexes and schedules hereto, will be fully and finally settled by arbitration in\naccordance with the provisions set forth in Section 13 of the Representative’s Employment Agreement with the Company, dated as of\nOctober 19, 2012. Notwithstanding this provision, nothing contained herein shall in any way be deemed to prohibit the Company or the\nRepresentative from seeking temporary equitable relief from a court of competent jurisdiction in the event of a breach or threatened\nbreach by the other party of this Agreement.\nAll notices and other communications given or made pursuant to this Agreement shall be in writing and shall be (i) sent by an overnight\ncourier service that provides proof of receipt, (ii) mailed by registered or certified mail (postage prepaid, return receipt requested) or (iii)\ntelecopied to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):\nIf to Company: Integrated Drilling Equipment Holdings Corp. 25311 I-45 North, Building 6\nSpring, Texas, USA 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\nIf to Representative: Offshore and Marine Holdings LL.C Stephen D. Cope\n7303 Augusta Drive\nSpring, TX 77389\nTel: (713) 253-0130\nIf this Agreement provides for a designated period after a notice within which to perform an act, such period shall commence on the\ndate of receipt or refusal of the notice. If this Agreement requires the exercise of a right by notice on or before a certain date or within a\ndesignated period, such right shall be deemed exercised on the date of delivery to the courier service, tele-copying or mailing of the\nnotice pursuant to which such right is exercised.\n14\nra\n21. 22. 23. 24. 25. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior\nrepresentations, agreements and understandings, whether oral or written, between the Parties with respect to the subject matter hereof.\nNo representations or warranties have been made relating to the subject matter hereof other than those expressly set forth in this\nAgreement. This Agreement may not be amended, modified or supplemented except by means of a written instrument designated as\nsuch and executed by an authorized officer of each of the Parties.\nIf any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court, tribunal or other forum of competent\njurisdiction for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement\n(including, without limitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid,\nillegal or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision will be deemed reformed to the extent\nnecessary to conform to applicable Law and to give maximum effect to the intent of the Parties, or, if that is not possible, such provision\nshall be deemed severed from this Agreement; and (c) to the fullest extent possible, the provisions of this Agreement (including, without\nlimitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid, illegal or unenforceable,\nthat is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held\ninvalid, illegal or unenforceable.\nEither Party hereto may terminate this Agreement by thirty (30) days written notice to the other Party at its address specified herein, but\nno such termination shall affect obligations already in effect.\nThis Agreement is personal to each of the Parties and may not be assigned or otherwise transferred, in whole or in part, by either Party\nwithout the prior written consent of the other Party.\nNo failure or delay by a Party in exercising its rights, powers or privileges under this Agreement shall constitute a waiver thereof, nor\nshall any single or partial exercise of such rights, powers or privileges preclude any further exercise thereof. No waiver of any provision\nshall be binding upon a Party unless it is in writing and signed by an authorized officer of such Party.\n15\nwd\n26. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original copy of this Agreement, but\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The Parties may sign and deliver this\nAgreement by facsimile transmission or by electronic mail in “portable document format.” Each Party agrees that the delivery of this\nAgreement by facsimile or by electronic mail in “portable document format” shall have the same force and effect as delivery of original\nsignatures, and that each Party may use such facsimile or electronic mail signatures as evidence of the execution and delivery of this\nAgreement by all Parties to the same extent that an original signature could be used.\n[SIGNATURES ON FOLLOWING PAGE]\n16\nIN WITNESS WHEREQF, the Parties have executed this Agreement as of the date first written above.\nIntegrated Drilling Equipment Holdings Corp.\nBy (Print Name): N. Michael Dion\nSignature: /s/ Michael Dion\nTitle: CFO\nDate: April 7, 2014\nOffshore and Marine Holdings LL.C\nBy (Print Name):  Steve Cope\nSignature: /s/ Steve Cope\nTitle: President/CEO\nDate: April 7, 2014\nSignature Page to Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nwl\nAPPENDIX A\nREPRESENTATION AREA.\nThe Representation Area is the United States of America and Mexico. Additional areas and projects may be determined on a case by case basis in\nthe Company’s discretion.\nAPPENDIX B\nSPECIFIC PROJECT AND COMMISSION BASIS\n(Specific Projects, details and commission basis are to be determined on a case by case basis. The initial commission to be included will\nbe 1% of the net selling price of any order or project)\nLas Isla*\nBig Dog Drilling*\nIHSA\nSavannah Drilling\nLewis\nSidewinder\nSavanna\nNoram\nEurasia Drilling\nIHSA\nTacker\nPEMSA*\nGPA\nLatina*\nGSM*\nGoimar*\nCentral*\nEnsign\nFelderhoff\nArcher*\nLukoil\nSevmash\nGazprom\nRosneft\nSidewinder\nEnsign\nRUS Industrial\nCRC Evans\nBaker Hughes\nOklahoma Rig Co.\nShale Pumps\nServas Energy\nAztec Drilling\nIndependence Drilling\nSidewinder\nPatterson UTI\nNabors\nEnsign\nAPPENDIX C\nRESTRICTED CUSTOMERS.\nwd\nScana\nEnergy Water Solutions\nNDIL\nProjects undertaken by entities identified with an asterisk shall not be subject to the restrictions placed on Restricted Customers for any such\nprojects or PEMEX licitations that are received, initiated or quoted after the date of the Company’s March 24, 2014 pipeline report. For the\navoidance of doubt, any projects that have not been quoted prior to the March 24, 2014 pipeline report and are received, initiated or quoted after\nthe March 24, 2014 pipeline report shall not be subject to the restrictions placed on Restricted Customers in Section 4(f) of this Agreement.\nra\nSCHEDULE 1\nANNUAL CERTIFICATION OF COMPLIANCE\nFOR INTERNATIONAL\nCONSULTANTS, AGENTS AND REPRESENTATIVES\nI [+] a duly authorized representative of [+] (the “Representative”) do hereby certify for and on behalf of such company, that neither I, nor to\nmy knowledge any other person, including but not limited to every officer, director, stockholder, employee, representative and agent of\nRepresentative or its affiliates has made any offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift,\npromise to give, or authorization of the giving of anything of value to any Public Official (defined below) to obtain, retain, or direct business\nor to secure any improper advantage for myself, the Representative, Representative’s affiliates, or any affiliate in violation of any Anti-\nCorruption Laws (defined below).\n"Public Official" means any officer or employee of a government (or any department, agency, or instrumentality thereof, including, but not\nlimited to, national oil companies), a political party, or a public international organization (such as the World Bank), or any person acting in\nan official capacity for or on behalf of any such government, department, agency, or instrumentality, or for or on behalf of any public\ninternational organization, or any political party or official thereof or candidate for political office. “Anti-Corruption Laws” means the\nUnited States Foreign Corrupt Practices Act (“FCPA™) and the anti-corruption and bribery laws of the representation Area, the jurisdiction(s)\nwhere Representative and its applicable affiliates are organized, and the country (ies) where the representation Services will be performed.\nI hereby confirm and agree that should I learn of any of the prohibited activities described above, or if there are any changes in the\nownership or control of the Representative or its affiliates, I will immediately advise:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North\nBuilding 6\nSpring, Texas 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\n(Signatures on Next Page)\n- *\nI hereby confirm that neither I nor anyone else at [+] or any affiliate that is providing Services is a Public Official.\nI certify under penalty of perjury that the foregoing is true and correct.\nDate:\nBy:\nName:\nTitle:	EX-10.5 8 v374814_ex10-5.htm EXHIBIT 10.5\nCONFIDENTIAL SALES REPRESENTATION AND\nNON-CIRCUMVENTIONNON-DISCLOSURE AGREEMENT\nThis Agreement ("Agreement"), dated April 7, 2014, will constitute a Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nby and between Integrated Drilling Equipment Holdings Corp. ("IDE") (hereinafter referred to as "Company") and Offshore and Marine\nHoldings LLC (the "Representative").\nRECITALS:\nWHEREAS, Company designs, manufactures, sells and/or leases oil and gas drilling rigs and related equipment; and\nWHEREAS, the Representative is the former Chief Executive Officer of Company, a member of the board of directors of the Company and\ncurrently assists in the marketing and sale of drilling equipment; and\nWHEREAS, the Company wishes to appoint and the Representative agrees to accept appointment as an independent sales and marketing\nconsultant for all products and services manufactured or otherwise provided by the Company; and\nWHEREAS, each Party is willing to furnish Confidential Information (as defined below) to the other Party in connection with and subject to the\nterms and conditions of this Agreement; and\nWHEREAS, in order to facilitate the Company's business in the Areas covered by this Agreement, Representative is willing to introduce\nCompany to the customers;\nNOW, THEREFORE, for and in consideration of the foregoing and the covenants and agreements set forth in this Agreement, the Parties,\nintending to be legally bound, do hereby agree as follows:.\n1. Products covered by the Agreement ("Products").\nA. Complete drilling rig packages and systems.\nB. Drilling rig component products manufactured by the Company including, but not limited to, Mast, Drawworks, Substructures,\nMud Pumps, Rotary Tables, SCR Drive Systems, AC VFD Systems, Equipment Installations, Fabrication, and other products and\nservices provided and manufactured by the Company.\n2. Areas covered by the Agreement ("Area").\nA. Representative will have non-exclusive rights for the Area defined in Appendix A of this Agreement, except for specific accounts\nor areas specifically excluded by the Company which may be added or subtracted from Appendix A from time to time by the\nCompany in its sole discretion. Any exceptions or exclusions will be identified by the Company and notified to the Representative\nin\nwriting. However, any specific projects or sales opportunities introduced by the Representative to the Company will become the\nexclusive property of the Representative until cancelled by mutual agreement of Representative and Company.\nB. Conflicts. In areas that may be assigned to and covered by a different representative, the Company will attempt to advise the\nRepresentative of any potential conflict and reduce potential conflicts.\n3. Services.\nThe Representative and Company agree that the Services are to be performed by the Representative acting solely as an independent\ncontractor on behalf of the Company. The parties agree that the Representative will provide the following minimum Services for the\nCompany, all at the direction and request of the Company:\nA. Obtain information relating to the requirements of customers for the Company's Products.\nB.\nAdvise, assist and consult with the Company in the proper preparation and submittal of Company's response to any tenders or other requests\nfor the sale or lease of Products.\nC. Advise, assist and consult with the Company with respect to negotiations relating to the award of a contract for the purchase or lease of\nProducts.\nD. Provide general advice and counsel as well as specific assistance pertaining to local matters which would affect the execution of the contract,\naward and performance of the work relating to the contract.\nE. Assist the Company, to the extent possible, with help in order to Secure necessary permits, bonds and guarantees including, but not limited\nto, customs, importation and exportation permits for the Products and related equipment required by the contract as well as any other local\ngovernmental permits necessary or desirable in connection with importation, operation and exportation of the Products in or from the area\ndefined in Appendix A C cost of the permit, bond or guarantee fees actually incurred is for the account of Company).\nF.\nAssist in obtaining any work permits required for local or foreign personnel to work in the Territory to perform any contract. Any associated\ncost will be reimbursed to the Representative by the Company.\n2\nG. Provide assistance and services in dealing with representatives of the customers and their affiliates.\nH. Provide such assistance and advice as may be reasonably requested by Company relating to facilitating communications between the\nCompany and the customers throughout the term of any contracts.\nI.\nNotify the Company of any additional potential projects or sales or leases of Products for the customers.\nJ. Provide such other services as Company may reasonably determine from time to time may be necessary or helpful in connection with its\noperations relating to the contracts.\nK. Assist the Company and the Customer to establish payment terms for any Products that are agreeable to the Company and the customer.\nL. Assist in collection of payments and amounts due from customer and assist in resolving any disputes relating thereto.\n4. Commission payment and terms.\nA. The Company agrees to pay the Representative a commission of 1%, based upon the final net selling price of any products and\nservices by the Company to a Customer, denominated and payable in U.S. Dollars, as set forth in Appendix B of this Agreement\nfor\nspecific projects. Typically, the commission will be set by Company for each project and will be based upon the net sales price of\nany Products sold, by the Company to a customer. For the avoidance of doubt, the net selling price will be exclusive of any\nshipping/freight charges, insurance, interest, travel and living expenses, taxes or other similar costs reimbursed to the Company.\nCompany reserves the right to set a specific commission basis for each project.\nB.\nReduction of commissions. In certain cases, it may be necessary for the Company to reduce the selling price in order to obtain an\norder. In this event, the Company and the Representative both agree to a proportional reduction of the commission proportional to\nthe reduction in selling price.\nC.\nExcess commissions. In some cases, the Representative may have an opportunity to earn more than the basic commission as\ndefined in Appendix B. In these cases, the Representative and the Company will agree upon any excess compensation in advance of\nthe sale or lease. The Company reserves the right to set any (or no) specific excess commission.\n3\nD. Payment of commissions. Payment of commissions will be paid on a pro-rata basis to the Representative based on the payment\nterms accepted by the Company from the end user/customer. All commissions will be paid to the Representative within ten (10)\ndays after receipt of the Customer's payment by the Company.\nE. Cancellations. In cases of cancellations, the Company will be under no obligation to pay unearned commissions to the\nRepresentative except for payments received by the Company that are not refunded to the end user/customer. In cases where\ncancellations require a refund of payments made to the Company, the Representative agrees to refund any commissions received\nfrom the Company that have been paid by the Company to the Representative associated with such refund of payments.\nF. Restricted Customers. The Representative shall not be entitled to commissions for any sales by the Company to (i) any customers to\nwhich the Company has made sales of any kind during the two-year period ending on the date hereof or (ii) the customers set forth\non Appendix C (the "Restricted Customers") even in the event that the Representative, directly or indirectly, facilitates or assists in\nsuch sales. Prior to contacting any customer, the Representative shall notify the Company that he intends to contact such customer\nand shall only contact such customer with the prior written consent of the Company.\n5.\nAcceptance of sales/contracts.\nThe Company is the sole authority for accepting or rejecting any prospective sales brought in by the Representative. The Representative\nhas no authority to contractually or otherwise bind the Company in any manner. The Representative shall not be permitted to quote\nprices that deviate from the Company's current price list without the prior written approval of the Chief Executive Officer and the Chief\nFinancial Officer of the Company.\n6. Expenses.\nThe Representative and the Company each agree to pay its own expenses incurred in the normal course of business and in execution of\nthis contract, unless agreed otherwise in writing or in this Agreement.\n7. Product Representation.\nThe Representative hereby agrees to represent the Company and the Products and Services provided by the Company and not to\nrepresent products or enter into a representation relationship which would compete with the Products and Services that are the subject of\nthis Agreement, provided that the Representative shall be free to sell used drilling equipment and other used products, provided further\nthat the Company shall have a right of first refusal to engage in any refurbishment-related work on used equipment or products sold\nby\nthe Representative.\n4\n8. Taxes.\nEach party shall pay their own sales, use, franchise, income or other taxes.\n9. Documentation, sales and marketing and other assistance.\nThe Company will provide the Representative with all marketing data necessary including drawings, literature, contract preparation,\nquality assurance/quality control manuals and other sales, marketing and engineering as necessary and reasonably required by the\nRepresentative in the normal course of business of representing the Company. The Company will assist the Representative with all\nreasonable requests for assistance from the sales, engineering, production or other departments of the Company, on the same basis as the\nCompany provides such support for all of its sales representatives.\n10. General Business Ethics.\nA. The Representative represents and warrants that it is familiar with relevant laws in the assigned Area, and that neither the receipt of\nfees under this Agreement nor the performance by the Company or the Representative of obligations and Services under this\nAgreement is in any respect a violation of applicable laws, rules, orders, prohibitions, or regulations in the assigned Area. The\nRepresentative shall comply in all respects with all applicable laws in the assigned Area dealing with bribery and corruption,\nas\nmay be amended from time to time.\nB. The Representative has not and will not offer, promise or provide any thing of value, directly or indirectly, to any Government\nOfficial, or any other person or entity, for the purpose of influencing any decision, action or inaction in order to secure or maintain\nan improper advantage in connection with or relating to the subject matter of this Agreement or any supplement or amendment\nhereto, or in order to direct an improper advantage to any other person or entity or otherwise act in violation of the Foreign Corrupt\nPractices Act (the "FCPA") of the United States of America. The offer, promise or provision of any thing of value proscribed by\nthis paragraph is a "Prohibited Payment."\nC. "Government Official," as that term is used throughout this Article 10, includes any official, employee or representative of any\ngovernment (or agency, instrumentality, or company owned or controlled by any government), any political party or employee\nthereof, or any candidate for political office.\n5\nD. If the Representative receives a request for a Prohibited Payment in connection with or relating to the subject matter of this\nAgreement or any supplement or amendment hereto, then the Company must be notified immediately.\nE. The Representative agrees and certifies that it is familiar with, is in compliance with, and will continue to comply strictly with all\napplicable anti-corruption laws and regulations and will not engage in or support any occurrence of bribery or other corrupt\npractices.\nF. The Representative shall not do business with any person or third-party entity where it knows or suspects the existence of any\nillegal, unethical or questionable practices by such person or third-party entity, its officers, employees or agents.\nG. All financial transactions by Representative hereunder shall be recorded in a timely, complete and accurate manner in accordance\nwith generally accepted accounting principles consistently applied. Representative invoices and supporting documentation, as well\nas\nall other documents and accounting entries, shall not be false, fictitious or intentionally misleading in any way. The\nRepresentative shall sufficiently document all payments and keep appropriate receipts. The Representative shall make available to\nthe Company any invoices or records corresponding to such payments at the Company's request upon reasonable notice.\nH.\nThe Company shall have reasonable access to the Representative's books and records pertaining to activities for or on behalf of the\nCompany, and the right to audit these records on demand. The Company may elect to designate a third party to conduct such an\naudit. The Company may, inspect the Representative's premises. The Representative shall fully cooperate in any due diligence or\naudit conducted by or on behalf of the Company. Any associated cost will be for the account of The Company.\nI.\nUpon its discovery of a breach of any of the representations and warranties, or any other provision of this Agreement, the\nRepresentative shall immediately report such breach to the Company.\nJ.\nThe Representative shall notify the Company if, at any time during the course of this Agreement, the Representative becomes\naware of any change of circumstances that could materially impact the Representative's performance under this Agreement.\n6\n11. Compliance with FCPA\nA. The Representative represents and warrants that, in connection with the business to be conducted under this Agreement, no\npayment has been made, and no payment will be made, by Representative or by any of its officers, employees, agents or subsidiary\nor affiliated companies to any officer, official or employee (or to any agent or other person acting on behalf of such a person) of any\nnation, national company or political Party in violation of the Foreign Corrupt Practices Act (the "FCPA") of the United States of\nAmerica that prohibits payment or giving of anything of value, either directly or indirectly, by an American company to an official\nof a foreign government for the purpose of influencing an act or decision in his or her official capacity, or inducing that official to\nuse his or her influence with the foreign government, to assist a company in obtaining or retaining business for, or with, or directing\nbusiness to, any person. The Representative further represents and warrants that it shall not undertake any action which is\nin\nviolation of the anti-bribery provision of the OECD. This Agreement shall automatically terminate without notice upon Company\nlearning of any violation of this clause, and the Company shall have no further obligations to amounts owing, or otherwise, under\nthis Agreement from and after the date of said violation. Furthermore, the Representative agrees to defend, indemnity and hold the\nCompany harmless from and against any claims, actions or causes of action for damages, fines, penalties, (including interest\nthereon and attorney fees) arising out of any violation of this clause. At the request of Company or at least annually, the\nRepresentative shall provide a certification in a form substantially similar to Schedule 1, attached to and incorporated herein by\nreference.\nB.\nCompany warrants that it will not knowingly request any service from Representative, which might constitute a violation of the\napplicable laws of The United States of America or any national or local government having jurisdiction over the Parties, and\nno\nofficer or employee of Company has authority to give directions to Representative, which is contrary to the laws of The United\nStates of America or any national or local government having jurisdiction over the Parties.\n12. Conformity. with Local Laws\nEach Party agrees to comply with all applicable laws, orders, regulations, directions, restrictions and limitations of the governments\n("Laws") having jurisdiction of the Parties hereto and over the Services. Each Party agrees to defend, indemnify and hold the other\nParty harmless from and against any claims, actions or causes of actions for damages, penalties, fines or otherwise (including interest\nthereon and attorney fees) for their respective violation of the Laws.\n7\n13. Representations of Representative\nThe Representative represents and warrants to the Company that:\n(a)\nThe Representative (i) is a corporation or limited liability company duly organized, validly existing and in good standing under\nthe laws of the jurisdiction of its incorporation; (ii) has its principal place of business located at its address set forth on the\nsignature page hereof; (iii) has all requisite corporate or other power, and has all material governmenta licenses,\nauthorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be\nconducted; and (iv) is qualified to do business and is in good standing in all jurisdictions in which the services required to be\nperformed by it under this Agreement make such qualifications necessary.\n(b)\nThere are no legal or arbitral proceedings or any proceedings by or before any governmental or regulatory authority or agency,\nnow pending or (to the knowledge of the Representative) threatened against the Representative which, if adversely determined,\ncould (either individually or in the aggregate) have a Material Adverse Effect (as hereafter defined). For purposes hereof, the\nterm "Material Adverse Effect" means a material adverse effect on (i) the ability of the Representative to perform its services\nhereunder, (ii) the validity or enforceability of this Agreement, or (iii) the rights and remedies of the Company hereunder.\n(c)\nThe Parties have all necessary corporate and other power, authority and legal right to execute, deliver and perform their\nrespective obligations hereunder; the execution, delivery and performance by the Parties of this Agreement have been duly\nauthorized by all necessary corporate and other action on their part; and this Agreement has been duly and validly executed by\nthe Representative and Company and constitutes its legal, valid and binding obligation, enforceable against the Parties\nin\naccordance with its terms.\n14. Non-disclosure agreement.\nA Party receiving Confidential Information may also be referred to herein as a "Recipient," and a Party disclosing Confidential\nInformation may also be referred to herein as a "Discloser."\n8\nAs used in this Agreement, "Confidential Information" shall mean information, technical data or know-how disclosed by Discloser or\nany of Discloser's employees, agents, affiliates, contractors or representatives (each a "Discloser Representative" and collectively, the\n"Discloser Representatives") to Recipient or any of Recipient's employees, agents, affiliates, contractors or representatives (each a\n"Recipient Representative" and collectively, the "Recipient Representatives"), including, but not limited to: customer/supplier lists and\nidentities, agreements, characteristics, formulations, specifications, sales and marketing information, sales, figures, pricing and cost\ninformation, marketing plans and business plans, forecasts, financial information, budgets, databases, computer programs, software\n(whether in object or source code), research papers, projections, practices, procedures, processes, routines, formulae, trade secrets,\nideas, innovations, inventions, technology, manufacturing know-how, machinery, drawings, photographs, equipment, devices, tools,\ndiscoveries, improvements, research or development and test results, data, formats, plans, sketches, models, any intellectual property,\npatents, trademarks, and copyrights and applications therefore, all rights and information necessary to produce and market Discloser's\nproducts or to conduct the business of Discloser as currently conducted, or which pertains in any manner to subjects or knowledge of\nDiscloser's business or operation, or the information, tangible or intangible, owned, developed or possessed by Discloser, whether or not\nmarked as "confidential," and any other information or procedures that are treated as confidential by Discloser or its affiliates, suppliers\nor customers. Confidential Information shall include all such information that has been or may hereafter be provided, shown to, or\nreviewed by Recipient or any Recipient Representative, irrespective of the manner in which such information is communicated, and also\nincludes all notes, analyses, compilations, studies, summaries and other material prepared by Recipient or any Recipient Representative\ncontaining or based, in whole or in part, on any information included in any of the foregoing. Confidential Information also includes\ninformation of third parties in possession of Discloser that Discloser is obligated to maintain in confidence. Confidential Information\nsubject to this Agreement may be in intangible form, such as unrecorded knowledge, ideas or conceptions or information communicated\norally or by visual observation, or may be embodied in tangible form, such as a document. For purposes of this Agreement, the term\n"document" includes written memoranda, drawings, training materials, specifications, notebook entries, photographs, graphic\nrepresentations, firmware, computer information or software, information communicated by other electronic or magnetic media, or\nmodels.\nA. Notwithstanding the provisions of this Section 11 of the Agreement or any other provision of this Agreement, Confidential\nInformation" shall not include any of the following, even if marked or designated "Confidential":\ni.\nInformation that Recipient can substantiate was known by Recipient prior to disclosure by Discloser or any Discloser\nRepresentative to Recipient or any Recipient Representative under this Agreement;\nii. Information that was disclosed to Recipient or any Recipient Representative by a third party not known by Recipient to be\nunder an obligation of confidentiality with respect to such information;\niii. Information that is or becomes generally available to the public through no fault of Recipient or any Recipient\nRepresentative in breach of this Agreement;\n9\niv.\nInformation required to be disclosed by judicial mandate or other requirement of applicable law, provided that Recipient\ncomplies with the provisions of Section 11.F. of this Agreement; or\nV.\nInformation that is independently developed by Recipient or any Recipient Representative without use of or reference to\nany of Discloser's Confidential Information and without breach by Recipient or any Recipient Representative of any\nconfidentiality agreement or obligation to Discloser, as evidenced by Recipient's written records.\nB. With respect to Confidential Information disclosed by Discloser or any Discloser Representative to Recipient or any Recipient\nRepresentative, Recipient shall, and shall cause each Recipient Representative to:\ni.\nreceive, review, regard, preserve, hold and treat all Confidential Information as secret and confidential and to use its best\nefforts to prevent disclosure by any Recipient Representative, directly or indirectly, to any person or entity that does not\nreasonably need to know the Confidential Information for the specific purpose relating to the Services provided to the\nCompany or the Products;\nii.\nrefrain from using any Confidential Information except for the limited purpose of furthering the Services to be provided\nrelated to the transactions for the Products;\niii. take all necessary and appropriate steps to maintain the confidentiality of any Confidential Information disclosed to\nRecipient or any Recipient Representative, including ensuring the confidentiality of any Confidential Information provided\nto the Recipient Representatives and any successors or assigns of any of them, including without limitation, entering into\nconfidentiality agreements with such persons or entities in a form substantially similar to this Agreement or other\nagreements pursuant to which such persons or entities agree to be bound by the terms and conditions of this Agreement as\nif such persons or entities were Recipient;\niv.\nTake all necessary and appropriate steps to prevent use of the Confidential Information in any way that would violate\nfederal or state securities or other applicable laws;\nV.\nRefrain from copying or duplicating, in any manner whatsoever except to the extent reasonably necessary for the\nfurtherance of the transactions involving the Products or as otherwise permitted herein, Confidential Information without\nthe express written permission of Discloser;\n10\nvi.\nRefrain from referring, orally or in writing, to Discloser or the Transactions in any press releases, promotiona material,\npresentations to third parties (other than Discloser), in business resumes, or in any other information provided to third\nparties, without the prior written consent of Discloser;\nvii. Refrain from discussing or referring to any findings, conclusions, recommendations or the underlying data thereof with\nany third party (other than Discloser) arising out of any Confidential Information or the transactions involving the Products\nor the Services provided to the Company, without the prior written consent of Discloser;\nviii. Use the Confidential Information solely for the purpose of furthering the Transactions and not to use any of the\nConfidential Information for the benefit of any person or entity other than Discloser without the prior written consent of\nDiscloser; and\nix. With respect to any equipment, component, software or other items sold, leased, loaned or otherwise delivered by\nDiscloser or any Discloser Representative to Recipient or any Recipient Representative in connection with the Services or\nthe Products, refrain from reverse engineering, disassembling, decompiling or otherwise analyzing the physical\nconstruction of any such items.\nC. Recipient may only disclose the Confidentia Information to Recipient's Representatives having a bona fide need to know the\nConfidential Information in the course of performing their duties in connection with the Services or Products. Recipient\nwill\nsegregate or otherwise maintain Confidential Information SO as to prevent any commingling of the same with the confidential\nproprietary materials of others. In the event of any unauthorized disclosure of Confidential Information, Recipient shall notify\nDiscloser immediately. Recipient shall be fully responsible for and accountable to Discloser for any damages Discloser or any\naffiliate of Discloser suffers arising out of or related to any disclosure or use of Confidential Information in breach of this\nAgreement by Recipient or any Recipient Representative and shall, at Recipient's sole cost and expense, take all reasonably\nnecessary measures (including, but not limited to, court proceedings) to restrain such persons or entities from unauthorized\ndisclosure or use of Confidential Information.\n11\nD. If either Party determines that it shall not proceed with the Services pursuant to this Agreement, such Party will promptly notify the\nother Party of such determination. Recipient further agrees that upon a determination by either Party not to proceed with the\nServices, upon termination of this Agreement pursuant to Section 20 of this Agreement or upon written request of Discloser,\nRecipient will promptly (a) return all Confidential Information and all records, notes, and other written, printed, computer\ngenerated or other materials in its possession pertaining to the Confidential Information and not retain copies, extracts or other\nreproductions of such materials; (b) destroy all documents, memoranda, notes and other writings (whether in electronic or hard\ncopy form) prepared by Recipient or any Recipient Representative based upon or incorporating any Confidential Information\nreceived from Discloser or any Discloser Representative, including all documents containing any abstracts or excerpts of any\nConfidential Information; and (c) certify in writing to Discloser that Recipient has complied with its obligations hereunder. The\nreturn or destruction of materials does not relieve Recipient from complying with the other terms and conditions of this Agreement.\nE.\nNotwithstanding any other provision of this Agreement, the Parties agree that:\ni.\nAll rights to Confidential Information disclosed pursuant to this Agreement are reserved to and retained by Discloser, and\nDiscloser shall be and remain free to disclose or provide the Confidential Information to whomever in any manner\nDiscloser chooses;\nii.\nExcept as expressly provide in Section 15 below, nothing in this Agreement will diminish or restrict in any way the rights\nthat each Party has to develop its products, services and business or otherwise make available its products and services to\nany customer or third party in the ordinary course of its business;\niii. No license or conveyance of any rights or ownership is granted or implied by this Agreement or the disclosure of any\nConfidential Information hereunder, and Discloser expressly reserves any and all rights that it may have in and to the\nConfidential Information;\niv. No license is hereby granted, directly or indirectly, under any know-how, including any patent, invention, discovery, idea,\ncopyright or other intellectual or industrial property right now or in the future held, made, obtained or licensable by\nDiscloser; and\nV. The timing of access and the nature and extent of the Confidential Information to be made available to Recipient will be at\nthe discretion of Discloser.\n12\nF.\nIn the event Recipient or any Recipient Representative is served with an administrative or court subpoena or order requiring any\nConfidential Information to be disclosed, Recipient shall immediately thereafter notify Discloser orally and in writing of the fact of\nsuch service, the information requested and the time to respond thereto, and in all events, shall use its best efforts to provide\nDiscloser with such notice sufficiently in advance of the deadline to respond to allow Discloser sufficient time to challenge such\nsubpoena or order if Discloser elects to do SO. Recipient shall cooperate fully with Discloser, at Discloser's expense, in challenging\nany subpoena or order requiring the disclosure of Confidential Information. Should Discloser decide not to challenge any such\nsubpoena or order, then Recipient or the Recipient Representative, as applicable, may disclose such information as, in the\nreasonable judgment of Recipient's counsel, is required to be disclosed under such subpoena or order. Discloser shall advise\nRecipient within five (5) business days of receipt of notice thereof whether Discloser intends to challenge the subpoena or order.\nG. Recipient hereby acknowledges and agrees that neither Discloser nor any Discloser Representative makes any representations or\nwarranties whatsoever, express or implied, as to the accuracy, completeness or correctness of any Confidential Information supplied\nhereunder, nor shall any such representations or warranties be implied. Neither Discloser nor Discloser's officers, directors or\nshareholders nor any of the Discloser Representatives shall have any liability whatsoever to Recipient or any Recipient\nRepresentative arising out of or resulting from the use of or reliance on any Confidential Information. Discloser retains the right to\ndetermine, in its sole discretion, what information, properties and personnel it wishes to make available to Recipient hereunder.\n15. The Parties acknowledge that in order to facilitate the Services, it may be necessary for Representative to introduce the Customers to the\nCompany for direct discussions regarding the sales of products. The Company hereby expressly agrees not to, directly or indirectly\nthrough one or more of the Company's affiliates or intermediaries, take any action for sole purpose of depriving the Representative of\nany commission that would otherwise be payable with respect to such sales.\n16. Nothing in this Agreement shall be construed as constituting any offer by, or as creating any obligation on the part of, either Party to\nenter into any transaction with the other or with any other person or entity.\n17.\nThe Parties agree that, because an award of money damages may be inadequate for any breach of Section 11 of this Agreement, and any\nsuch\nbreach\nmay\ncause\nthe\nnon-breaching\nParty\nirreparable\nharm,\nin\nthe\nevent\nof\na\nbreach\nor\nthreatened\nbreach\nof\nthe\nterms\nof\nthis\nAgreement by a Party, the non-breaching Party shall be entitled, without requirement of posting a bond or other security, to an\ninjunction or decree of specific performance prohibiting any such breach or disclosure or misuse of any Confidential Information. In\naddition to injunctive relief, the non-breaching Party shall have all other rights and remedies afforded it by law.\n13\n18.\nThis Agreement shall be construed, governed by, enforced and interpreted, and the relationship between the Parties determined in\naccordance with, the laws of the State of Texas without giving effect to any choice or conflict of laws rules, provisions or principles\n(whether of the State of Texas or any other jurisdiction) the application of which would result in the application of the laws of any\njurisdiction other than the State of Texas.\n19.\nThe Parties will attempt in good faith to resolve any dispute arising out of or relating to this Agreement or the construction\ninterpretation, performance, breach, termination, enforceability or validity hereof (each a "Dispute") through discussions between their\nrespective representatives. Any Dispute that cannot be resolved through discussions between the Parties' respective representatives\narising out of or relating to this Agreement, including the annexes and schedules hereto, will be fully and finally settled by arbitration in\naccordance with the provisions set forth in Section 13 of the Representative's Employment Agreement with the Company, dated as of\nOctober 19, 2012. Notwithstanding this provision, nothing contained herein shall in any way be deemed to prohibit the Company or the\nRepresentative from seeking temporary equitable relief from a court of competent jurisdiction in the event of a breach or threatened\nbreach by the other party of this Agreement.\n20. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be (i) sent by an overnight\ncourier service that provides proof of receipt (ii) mailed by registered or certified mail (postage prepaid, return receipt requested) or (iii)\ntelecopied to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):\nIf to Company:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North, Building 6\nSpring, Texas, USA 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\nIf to Representative:\nOffshore and Marine Holdings LLC\nStephen D. Cope\n7303 Augusta Drive\nSpring, TX 77389\nTel: (713) 253-0130\nIf this Agreement provides for a designated period after a notice within which to perform an act, such period shall commence on the\ndate of receipt or refusal of the notice. If this Agreement requires the exercise of a right by notice on or before a certain date or within a\ndesignated period, such right shall be deemed exercised on the date of delivery to the courier service, tele-copying or mailing of the\nnotice pursuant to which such right is exercised.\n14\n21. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior\nrepresentations, agreements and understandings, whether oral or written, between the Parties with respect to the subject matter hereof.\nNo representations or warranties have been made relating to the subject matter hereof other than those expressly set forth in this\nAgreement. This Agreement may not be amended, modified or supplemented except by means of a written instrument designated as\nsuch and executed by an authorized officer of each of the Parties.\n22. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court, tribunal or other forum of competent\njurisdiction for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement\n(including, without limitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid,\nillegal or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision will be deemed reformed to the extent\nnecessary to conform to applicable Law and to give maximum effect to the intent of the Parties, or, if that is not possible, such provision\nshall be deemed severed from this Agreement; and (c) to the fullest extent possible, the provisions of this Agreement (including, without\nlimitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid, illegal or unenforceable,\nthat is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held\ninvalid, illegal or unenforceable.\n23. Either Party hereto may terminate this Agreement by thirty (30) days written notice to the other Party at its address specified herein, but\nno such termination shall affect obligations already in effect.\n24. This Agreement is personal to each of the Parties and may not be assigned or otherwise transferred, in whole or in part, by either Party\nwithout the prior written consent of the other Party.\n25. No failure or delay by a Party in exercising its rights, powers or privileges under this Agreement shall constitute a waiver thereof, nor\nshall any single or partial exercise of such rights, powers or privileges preclude any further exercise thereof. No waiver of any provision\nshall be binding upon a Party unless it is in writing and signed by an authorized officer of such Party.\n15\n26. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original copy of this Agreement, but\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The Parties may sign and deliver this\nAgreement by facsimile transmission or by electronic mail in "portable document format." Each Party agrees that the delivery of this\nAgreement by facsimile or by electronic mail in "portable document format" shall have the same force and effect as delivery of original\nsignatures, and that each Party may use such facsimile or electronic mail signatures as evidence of the execution and delivery of this\nAgreement by all Parties to the same extent that an original signature could be used.\n[SIGNATURES ON FOLLOWING PAGE]\n16\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nIntegrated Drilling Equipment Holdings Corp.\nBy (Print Name): N. Michael Dion\nSignature: /s/ Michael Dion\nTitle: CFO\nDate: April 7, 2014\nOffshore and Marine Holdings LLC\nBy (Print Name): Steve Cope\nSignature: /s/ Steve Cope\nTitle: President/CEO\nDate: April 7, 2014\nSignature Page to Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nAPPENDIX A\nREPRESENTATION AREA.\nThe Representation Area is the United States of America and Mexico. Additional areas and projects may be determined on a case by case basis\nin\nthe Company's discretion.\nAPPENDIX B\nSPECIFIC PROJECT AND COMMISSION BASIS\n(Specific Projects, details and commission basis are to be determined on a case by case basis. The initial commission to be included will\nbe 1% of the net selling price of any order or project)\nAPPENDIX C\nRESTRICTED CUSTOMERS.\nLas Isla*\nBig Dog Drilling*\nIHSA\nSavannah Drilling\nLewis\nSidewinder\nSavanna\nNoram\nEurasia Drilling\nIHSA\nTacker\nPEMSA*\nGPA\nLatina*\nGSM*\nGoimar*\nCentral**\nEnsign\nFelderhoff\nArcher*\nLukoil\nSevmash\nGazprom\nRosneft\nSidewinder\nEnsign\nRUS Industrial\nCRC Evans\nBaker Hughes\nOklahoma Rig Co.\nShale Pumps\nServas Energy\nAztec Drilling\nIndependence Drilling\nSidewinder\nPatterson UTI\nNabors\nEnsign\nScana\nEnergy Water Solutions\nNDIL\n>\nProjects undertaken by entities identified with an asterisk shall not be subject to the restrictions placed on Restricted Customers for any such\nprojects or PEMEX licitations that are received, initiated or quoted after the date of the Company's March 24, 2014 pipeline report. For the\navoidance of doubt, any projects that have not been quoted prior to the March 24, 2014 pipeline report and are received, initiated or quoted after\nthe March 24, 2014 pipeline report shall not be subject to the restrictions placed on Restricted Customers in Section 4(f) of this Agreement.\nSCHEDULE 1\nANNUAL CERTIFICATION OF COMPLIANCE\nFOR INTERNATIONAL\nCONSULTANTS, AGENTS AND REPRESENTATIVES\nI a duly authorized representative of [] (the "Representative") do hereby certify for and on behalf of such company, that neither I, nor to\nmy knowledge any other person, including but not limited to every officer, director, stockholder, employee, representative and agent of\nRepresentative or its affiliates has made any offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift,\npromise to give, or authorization of the giving of anything of value to any Public Official (defined below) to obtain, retain, or direct business\nor\nto secure any improper advantage for myself, the Representative, Representative's affiliates, or any affiliate in violation of any Anti-\nCorruption Laws (defined below).\n"Public Official" means any officer or employee of a government (or any department, agency, or instrumentality thereof, including, but not\nlimited to, national oil companies), a political party, or a public international organization (such as the World Bank), or any person acting in\nan\nofficial\ncapacity for or on behalf of any such government, department, agency, or instrumentality, or for or on behalf of any public\ninternational organization, or any political party or official thereof or candidate for political office. "Anti-Corruption Laws" means the\nUnited States Foreign Corrupt Practices Act ("FCPA") and the anti-corruption and bribery laws of the representation Area, the jurisdiction(s)\nwhere Representative and its applicable affiliates are organized, and the country (ies) where the representation Services will be performed.\nI hereby confirm and agree that should I learn of any of the prohibited activities described above, or if there are any changes in the\nownership or control of the Representative or its affiliates, I will immediately advise:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North\nBuilding 6\nSpring, Texas 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\n(Signatures on Next Page)\nI hereby confirm that neither I nor anyone else at [] or any affiliate that is providing Services is a Public Official.\nI certify under penalty of perjury that the foregoing is true and correct.\nDate:\nBy:\nName:\nTitle:	EX-10 .5 8 v374814_ex10-5 .htm EXHIBIT 10.5\nCONFIDENTIAL SALES REPRESENTATION AND\nNON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT\nThis Agreement (“Agreement”), dated April 7, 2014, will constitute a Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nby and between Integrated Drilling Equipment Holdings Corp. (“IDE”) (hereinafter referred to as “Company”) and Offshore and Marine\nHoldings LLC (the “Representative”).\nRECITALS:\nWHEREAS, Company designs, manufactures, sells and/or leases oil and gas drilling rigs and related equipment; and\nWHEREAS, the Representative is the former Chief Executive Officer of Company, a member of the board of directors of the Company and\ncurrently assists in the marketing and sale of drilling equipment; and\nWHEREAS, the Company wishes to appoint and the Representative agrees to accept appointment as an independent sales and marketing\nconsultant for all products and services manufactured or otherwise provided by the Company; and\nWHEREAS, each Party is willing to furnish Confidential Information (as defined below) to the other Party in connection with and subject to the\nterms and conditions of this Agreement; and\nWHEREAS, in order to facilitate the Company’s business in the Areas covered by this Agreement, Representative is willing to introduce\nCompany to the customers;\nNOW, THEREFORE, for and in consideration of the foregoing and the covenants and agreements set forth in this Agreement, the Parties,\nintending to be legally bound, do hereby agree as follows:.\n1. Products covered by the Agreement (“Products”).\nA. Complete drilling rig packages and systems.\nB. Drilling rig component products manufactured by the Company including, but not limited to, Mast, Drawworks, Substructures,\nMud Pumps, Rotary Tables, SCR Drive Systems, AC VFD Systems, Equipment Installations, Fabrication, and other products and\nservices provided and manufactured by the Company.\n2. Areas covered by the Agreement (“Area”).\nA. Representative will have non-exclusive rights for the Area defined in Appendix A of this Agreement, except for specific accounts\nor areas specifically excluded by the Company which may be added or subtracted from Appendix A from time to time by the\nCompany in its sole discretion. Any exceptions or exclusions will be identified by the Company and notified to the Representative\nin writing. However, any specific projects or sales opportunities introduced by the Representative to the Company will become the\nexclusive property of the Representative until cancelled by mutual agreement of Representative and Company.\nB. Conflicts. In areas that may be assigned to and covered by a different representative, the Company will attempt to advise the\nRepresentative of any potential conflict and reduce potential conflicts.\n3. Services.\nThe Representative and Company agree that the Services are to be performed by the Representative acting solely as an independent\ncontractor on behalf of the Company. The parties agree that the Representative will provide the following minimum Services for the\nCompany, all at the direction and request of the Company:\nA. Obtain information relating to the requirements of customers for the Company’s Products.\nB. Advise, assist and consult with the Company in the proper preparation and submittal of Company’s response to any tenders or other requests\nfor the sale or lease of Products.\nC. Advise, assist and consult with the Company with respect to negotiations relating to the award of a contract for the purchase or lease of\nProducts.\nD. Provide general advice and counsel as well as specific assistance pertaining to local matters which would affect the execution of the contract,\naward and performance of the work relating to the contract.\nE. Assist the Company, to the extent possible, with help in order to Secure necessary permits, bonds and guarantees including, but not limited\nto, customs, importation and exportation permits for the Products and related equipment required by the contract as well as any other local\ngovernmental permits necessary or desirable in connection with importation, operation and exportation of the Products in or from the area\ndefined in Appendix A ( cost of the permit, bond or guarantee fees actually incurred is for the account of Company).\nF. Assist in obtaining any work permits required for local or foreign personnel to work in the Territory to perform any contract. Any associated\ncost will be reimbursed to the Representative by the Company.\n2\nG. Provide assistance and services in dealing with representatives of the customers and their affiliates.\nH. Provide such assistance and advice as may be reasonably requested by Company relating to facilitating communications between the\nCompany and the customers throughout the term of any contracts.\nI. Notify the Company of any additional potential projects or sales or leases of Products for the customers.\nJ. Provide such other services as Company may reasonably determine from time to time may be necessary or helpful in connection with its\noperations relating to the contracts.\nK. Assist the Company and the Customer to establish payment terms for any Products that are agreeable to the Company and the customer.\nL. Assist in collection of payments and amounts due from customer and assist in resolving any disputes relating thereto.\n4. Commission payment and terms.\nA. The Company agrees to pay the Representative a commission of 1%, based upon the final net selling price of any products and\nservices by the Company to a Customer, denominated and payable in U.S. Dollars, as set forth in Appendix B of this Agreement for\nspecific projects. Typically, the commission will be set by Company for each project and will be based upon the net sales price of\nany Products sold, by the Company to a customer. For the avoidance of doubt, the net selling price will be exclusive of any\nshipping/freight charges, insurance, interest, travel and living expenses, taxes or other similar costs reimbursed to the Company.\nCompany reserves the right to set a specific commission basis for each project.\nB. Reduction of commissions. In certain cases, it may be necessary for the Company to reduce the selling price in order to obtain an\norder. In this event, the Company and the Representative both agree to a proportional reduction of the commission proportional to\nthe reduction in selling price.\nC. Excess commissions. In some cases, the Representative may have an opportunity to earn more than the basic commission as\ndefined in Appendix B. In these cases, the Representative and the Company will agree upon any excess compensation in advance of\nthe sale or lease. The Company reserves the right to set any (or no) specific excess commission.\n3\nD. Payment of commissions. Payment of commissions will be paid on a pro-rata basis to the Representative based on the payment\nterms accepted by the Company from the end user/customer. All commissions will be paid to the Representative within ten (10)\ndays after receipt of the Customer’s payment by the Company.\nE. Cancellations. In cases of cancellations, the Company will be under no obligation to pay unearned commissions to the\nRepresentative except for payments received by the Company that are not refunded to the end user/customer. In cases where\ncancellations require a refund of payments made to the Company, the Representative agrees to refund any commissions received\nfrom the Company that have been paid by the Company to the Representative associated with such refund of payments.\nF. Restricted Customers. The Representative shall not be entitled to commissions for any sales by the Company to (i) any customers to\nwhich the Company has made sales of any kind during the two-year period ending on the date hereof or (ii) the customers set forth\non Appendix C (the “Restricted Customers”) even in the event that the Representative, directly or indirectly, facilitates or assists in\nsuch sales. Prior to contacting any customer, the Representative shall notify the Company that he intends to contact such customer\nand shall only contact such customer with the prior written consent of the Company.\n5. Acceptance of sales/contracts.\nThe Company is the sole authority for accepting or rejecting any prospective sales brought in by the Representative. The Representative\nhas no authority to contractually or otherwise bind the Company in any manner. The Representative shall not be permitted to quote\nprices that deviate from the Company’s current price list without the prior written approval of the Chief Executive Officer and the Chief\nFinancial Officer of the Company.\n6. Expenses.\nThe Representative and the Company each agree to pay its own expenses incurred in the normal course of business and in execution of\nthis contract, unless agreed otherwise in writing or in this Agreement.\n7. Product Representation.\nThe Representative hereby agrees to represent the Company and the Products and Services provided by the Company and not to\nrepresent products or enter into a representation relationship which would compete with the Products and Services that are the subject of\nthis Agreement, provided that the Representative shall be free to sell used drilling equipment and other used products, provided further\nthat the Company shall have a right of first refusal to engage in any refurbishment-related work on used equipment or products sold by\nthe Representative.\n4\n8. Taxes.\nEach party shall pay their own sales, use, franchise, income or other taxes.\n9. Documentation, sales and marketing and other assistance.\nThe Company will provide the Representative with all marketing data necessary including drawings, literature, contract preparation,\nquality assurance/quality control manuals and other sales, marketing and engineering as necessary and reasonably required by the\nRepresentative in the normal course of business of representing the Company. The Company will assist the Representative with all\nreasonable requests for assistance from the sales, engineering, production or other departments of the Company, on the same basis as the\nCompany provides such support for all of its sales representatives.\n10. General Business Ethics.\nA. The Representative represents and warrants that it is familiar with relevant laws in the assigned Area, and that neither the receipt of\nfees under this Agreement nor the performance by the Company or the Representative of obligations and Services under this\nAgreement is in any respect a violation of applicable laws, rules, orders, prohibitions, or regulations in the assigned Area. The\nRepresentative shall comply in all respects with all applicable laws in the assigned Area dealing with bribery and corruption, as\nmay be amended from time to time.\nB. The Representative has not and will not offer, promise or provide any thing of value, directly or indirectly, to any Government\nOfficial, or any other person or entity, for the purpose of influencing any decision, action or inaction in order to secure or maintain\nan improper advantage in connection with or relating to the subject matter of this Agreement or any supplement or amendment\nhereto, or in order to direct an improper advantage to any other person or entity or otherwise act in violation of the Foreign Corrupt\nPractices Act (the “FCPA”) of the United States of America. The offer, promise or provision of any thing of value proscribed by\nthis paragraph is a “Prohibited Payment.”\nC.\n“Government Official,” as that term is used throughout this Article 10, includes any official, employee or representative of any\ngovernment (or agency, instrumentality, or company owned or controlled by any government), any political party or employee\nthereof, or any candidate for political office.\n5\nD. If the Representative receives a request for a Prohibited Payment in connection with or relating to the subject matter of this\nAgreement or any supplement or amendment hereto, then the Company must be notified immediately.\nE. The Representative agrees and certifies that it is familiar with, is in compliance with, and will continue to comply strictly with all\napplicable anti-corruption laws and regulations and will not engage in or support any occurrence of bribery or other corrupt\npractices.\nF. The Representative shall not do business with any person or third-party entity where it knows or suspects the existence of any\nillegal, unethical or questionable practices by such person or third-party entity, its officers, employees or agents.\nG. All financial transactions by Representative hereunder shall be recorded in a timely, complete and accurate manner in accordance\nwith generally accepted accounting principles consistently applied. Representative invoices and supporting documentation, as well\nas all other documents and accounting entries, shall not be false, fictitious or intentionally misleading in any way. The\nRepresentative shall sufficiently document all payments and keep appropriate receipts. The Representative shall make available to\nthe Company any invoices or records corresponding to such payments at the Company’s request upon reasonable notice.\nH. The Company shall have reasonable access to the Representative’s books and records pertaining to activities for or on behalf of the\nCompany, and the right to audit these records on demand. The Company may elect to designate a third party to conduct such an\naudit. The Company may, inspect the Representative’s premises. The Representative shall fully cooperate in any due diligence or\naudit conducted by or on behalf of the Company. Any associated cost will be for the account of The Company.\nI. Upon its discovery of a breach of any of the representations and warranties, or any other provision of this Agreement, the\nRepresentative shall immediately report such breach to the Company.\nJ. The Representative shall notify the Company if, at any time during the course of this Agreement, the Representative becomes\naware of any change of circumstances that could materially impact the Representative’s performance under this Agreement.\n6\n11. Compliance with FCPA\nA. The Representative represents and warrants that, in connection with the business to be conducted under this Agreement, no\npayment has been made, and no payment will be made, by Representative or by any of its officers, employees, agents or subsidiary\nor affiliated companies to any officer, official or employee (or to any agent or other person acting on behalf of such a person) of any\nnation, national company or political Party in violation of the Foreign Corrupt Practices Act (the "FCPA") of the United States of\nAmerica that prohibits payment or giving of anything of value, either directly or indirectly, by an American company to an official\nof a foreign government for the purpose of influencing an act or decision in his or her official capacity, or inducing that official to\nuse his or her influence with the foreign government, to assist a company in obtaining or retaining business for, or with, or directing\nbusiness to, any person. The Representative further represents and warrants that it shall not undertake any action which is in\nviolation of the anti-bribery provision of the OECD. This Agreement shall automatically terminate without notice upon Company\nlearning of any violation of this clause, and the Company shall have no further obligations to amounts owing, or otherwise, under\nthis Agreement from and after the date of said violation. Furthermore, the Representative agrees to defend, indemnity and hold the\nCompany harmless from and against any claims, actions or causes of action for damages, fines, penalties, (including interest\nthereon and attorney fees) arising out of any violation of this clause. At the request of Company or at least annually, the\nRepresentative shall provide a certification in a form substantially similar to Schedule 1, attached to and incorporated herein by\nreference.\nB. Company warrants that it will not knowingly request any service from Representative, which might constitute a violation of the\napplicable laws of The United States of America or any national or local government having jurisdiction over the Parties, and no\nofficer or employee of Company has authority to give directions to Representative, which is contrary to the laws of The United\nStates of America or any national or local government having jurisdiction over the Parties.\n12. Conformity with Local Laws\nEach Party agrees to comply with all applicable laws, orders, regulations, directions, restrictions and limitations of the governments\n(“Laws”) having jurisdiction of the Parties hereto and over the Services. Each Party agrees to defend, indemnify and hold the other\nParty harmless from and against any claims, actions or causes of actions for damages, penalties, fines or otherwise (including interest\nthereon and attorney fees) for their respective violation of the Laws.\n7\n13. Representations of Representative\nThe Representative represents and warrants to the Company that:\n(a)\nThe Representative (i) is a corporation or limited liability company duly organized, validly existing and in good standing under\nthe laws of the jurisdiction of its incorporation; (ii) has its principal place of business located at its address set forth on the\nsignature page hereof; (iii) has all requisite corporate or other power, and has all material governmental licenses,\nauthorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be\nconducted; and (iv) is qualified to do business and is in good standing in all jurisdictions in which the services required to be\nperformed by it under this Agreement make such qualifications necessary.\n(b)\nThere are no legal or arbitral proceedings or any proceedings by or before any governmental or regulatory authority or agency,\nnow pending or (to the knowledge of the Representative) threatened against the Representative which, if adversely determined,\ncould (either individually or in the aggregate) have a Material Adverse Effect (as hereafter defined). For purposes hereof, the\nterm “Material Adverse Effect” means a material adverse effect on (i) the ability of the Representative to perform its services\nhereunder, (ii) the validity or enforceability of this Agreement, or (iii) the rights and remedies of the Company hereunder.\n(c)\nThe Parties have all necessary corporate and other power, authority and legal right to execute, deliver and perform their\nrespective obligations hereunder; the execution, delivery and performance by the Parties of this Agreement have been duly\nauthorized by all necessary corporate and other action on their part; and this Agreement has been duly and validly executed by\nthe Representative and Company and constitutes its legal, valid and binding obligation, enforceable against the Parties in\naccordance with its terms.\n14. Non-disclosure agreement.\nA Party receiving Confidential Information may also be referred to herein as a “Recipient,” and a Party disclosing Confidential\nInformation may also be referred to herein as a “Discloser.”\n8\nAs used in this Agreement, “Confidential Information” shall mean information, technical data or know-how disclosed by Discloser or\nany of Discloser’s employees, agents, affiliates, contractors or representatives (each a “Discloser Representative” and collectively, the\n“Discloser Representatives”) to Recipient or any of Recipient’s employees, agents, affiliates, contractors or representatives (each a\n“Recipient Representative” and collectively, the “Recipient Representatives”), including, but not limited to: customer/supplier lists and\nidentities, agreements, characteristics, formulations, specifications, sales and marketing information, sales, figures, pricing and cost\ninformation, marketing plans and business plans, forecasts, financial information, budgets, databases, computer programs, software\n(whether in object or source code), research papers, projections, practices, procedures, processes, routines, formulae, trade secrets,\nideas, innovations, inventions, technology, manufacturing know-how, machinery, drawings, photographs, equipment, devices, tools,\ndiscoveries, improvements, research or development and test results, data, formats, plans, sketches, models, any intellectual property,\npatents, trademarks, and copyrights and applications therefore, all rights and information necessary to produce and market Discloser’s\nproducts or to conduct the business of Discloser as currently conducted, or which pertains in any manner to subjects or knowledge of\nDiscloser’s business or operation, or the information, tangible or intangible, owned, developed or possessed by Discloser, whether or not\nmarked as “confidential,” and any other information or procedures that are treated as confidential by Discloser or its affiliates, suppliers\nor customers. Confidential Information shall include all such information that has been or may hereafter be provided, shown to, or\nreviewed by Recipient or any Recipient Representative, irrespective of the manner in which such information is communicated, and also\nincludes all notes, analyses, compilations, studies, summaries and other material prepared by Recipient or any Recipient Representative\ncontaining or based, in whole or in part, on any information included in any of the foregoing. Confidential Information also includes\ninformation of third parties in possession of Discloser that Discloser is obligated to maintain in confidence. Confidential Information\nsubject to this Agreement may be in intangible form, such as unrecorded knowledge, ideas or conceptions or information communicated\norally or by visual observation, or may be embodied in tangible form, such as a document. For purposes of this Agreement, the term\n“document” includes written memoranda, drawings, training materials, specifications, notebook entries, photographs, graphic\nrepresentations, firmware, computer information or software, information communicated by other electronic or magnetic media, or\nmodels.\nA. Notwithstanding the provisions of this Section 11 of the Agreement or any other provision of this Agreement, Confidential\nInformation” shall not include any of the following, even if marked or designated “Confidential”:\ni. Information that Recipient can substantiate was known by Recipient prior to disclosure by Discloser or any Discloser\nRepresentative to Recipient or any Recipient Representative under this Agreement;\nii. Information that was disclosed to Recipient or any Recipient Representative by a third party not known by Recipient to be\nunder an obligation of confidentiality with respect to such information;\niii. Information that is or becomes generally available to the public through no fault of Recipient or any Recipient\nRepresentative in breach of this Agreement;\n9\niv. Information required to be disclosed by judicial mandate or other requirement of applicable law, provided that Recipient\ncomplies with the provisions of Section 11.F. of this Agreement; or\nv. Information that is independently developed by Recipient or any Recipient Representative without use of or reference to\nany of Discloser ’s Confidential Information and without breach by Recipient or any Recipient Representative of any\nconfidentiality agreement or obligation to Discloser, as evidenced by Recipient’s written records.\nB. With respect to Confidential Information disclosed by Discloser or any Discloser Representative to Recipient or any Recipient\nRepresentative, Recipient shall, and shall cause each Recipient Representative to:\ni. receive, review, regard, preserve, hold and treat all Confidential Information as secret and confidential and to use its best\nefforts to prevent disclosure by any Recipient Representative, directly or indirectly, to any person or entity that does not\nreasonably need to know the Confidential Information for the specific purpose relating to the Services provided to the\nCompany or the Products;\nii. refrain from using any Confidential Information except for the limited purpose of furthering the Services to be provided\nrelated to the transactions for the Products;\niii. take all necessary and appropriate steps to maintain the confidentiality of any Confidential Information disclosed to\nRecipient or any Recipient Representative, including ensuring the confidentiality of any Confidential Information provided\nto the Recipient Representatives and any successors or assigns of any of them, including without limitation, entering into\nconfidentiality agreements with such persons or entities in a form substantially similar to this Agreement or other\nagreements pursuant to which such persons or entities agree to be bound by the terms and conditions of this Agreement as\nif such persons or entities were Recipient;\niv. Take all necessary and appropriate steps to prevent use of the Confidential Information in any way that would violate\nfederal or state securities or other applicable laws;\nv. Refrain from copying or duplicating, in any manner whatsoever except to the extent reasonably necessary for the\nfurtherance of the transactions involving the Products or as otherwise permitted herein, Confidential Information without\nthe express written permission of Discloser;\n10\nvi. Refrain from referring, orally or in writing, to Discloser or the Transactions in any press releases, promotional material,\npresentations to third parties (other than Discloser), in business resumes, or in any other information provided to third\nparties, without the prior written consent of Discloser;\nvii. Refrain from discussing or referring to any findings, conclusions, recommendations or the underlying data thereof with\nany third party (other than Discloser) arising out of any Confidential Information or the transactions involving the Products\nor the Services provided to the Company, without the prior written consent of Discloser;\nviii. Use the Confidential Information solely for the purpose of furthering the Transactions and not to use any of the\nConfidential Information for the benefit of any person or entity other than Discloser without the prior written consent of\nDiscloser; and\nix. With respect to any equipment, component, software or other items sold, leased, loaned or otherwise delivered by\nDiscloser or any Discloser Representative to Recipient or any Recipient Representative in connection with the Services or\nthe Products, refrain from reverse engineering, disassembling, decompiling or otherwise analyzing the physical\nconstruction of any such items.\nC. Recipient may only disclose the Confidential Information to Recipient’s Representatives having a bona fide need to know the\nConfidential Information in the course of performing their duties in connection with the Services or Products. Recipient will\nsegregate or otherwise maintain Confidential Information so as to prevent any commingling of the same with the confidential\nproprietary materials of others. In the event of any unauthorized disclosure of Confidential Information, Recipient shall notify\nDiscloser immediately. Recipient shall be fully responsible for and accountable to Discloser for any damages Discloser or any\naffiliate of Discloser suffers arising out of or related to any disclosure or use of Confidential Information in breach of this\nAgreement by Recipient or any Recipient Representative and shall, at Recipient’s sole cost and expense, take all reasonably\nnecessary measures (including, but not limited to, court proceedings) to restrain such persons or entities from unauthorized\ndisclosure or use of Confidential Information.\n11\nD. If either Party determines that it shall not proceed with the Services pursuant to this Agreement, such Party will promptly notify the\nother Party of such determination. Recipient further agrees that upon a determination by either Party not to proceed with the\nServices, upon termination of this Agreement pursuant to Section 20 of this Agreement or upon written request of Discloser,\nRecipient will promptly (a) return all Confidential Information and all records, notes, and other written, printed, computer\ngenerated or other materials in its possession pertaining to the Confidential Information and not retain copies, extracts or other\nreproductions of such materials; (b) destroy all documents, memoranda, notes and other writings (whether in electronic or hard\ncopy form) prepared by Recipient or any Recipient Representative based upon or incorporating any Confidential Information\nreceived from Discloser or any Discloser Representative, including all documents containing any abstracts or excerpts of any\nConfidential Information; and (c) certify in writing to Discloser that Recipient has complied with its obligations hereunder. The\nreturn or destruction of materials does not relieve Recipient from complying with the other terms and conditions of this Agreement.\nE. Notwithstanding any other provision of this Agreement, the Parties agree that:\ni. All rights to Confidential Information disclosed pursuant to this Agreement are reserved to and retained by Discloser, and\nDiscloser shall be and remain free to disclose or provide the Confidential Information to whomever in any manner\nDiscloser chooses;\nii. Except as expressly provide in Section 15 below, nothing in this Agreement will diminish or restrict in any way the rights\nthat each Party has to develop its products, services and business or otherwise make available its products and services to\nany customer or third party in the ordinary course of its business;\niii. No license or conveyance of any rights or ownership is granted or implied by this Agreement or the disclosure of any\nConfidential Information hereunder, and Discloser expressly reserves any and all rights that it may have in and to the\nConfidential Information;\niv. No license is hereby granted, directly or indirectly, under any know-how, including any patent, invention, discovery, idea,\ncopyright or other intellectual or industrial property right now or in the future held, made, obtained or licensable by\nDiscloser; and\nv. The timing of access and the nature and extent of the Confidential Information to be made available to Recipient will be at\nthe discretion of Discloser.\n12\nF. In the event Recipient or any Recipient Representative is served with an administrative or court subpoena or order requiring any\nConfidential Information to be disclosed, Recipient shall immediately thereafter notify Discloser orally and in writing of the fact of\nsuch service, the information requested and the time to respond thereto, and in all events, shall use its best efforts to provide\nDiscloser with such notice sufficiently in advance of the deadline to respond to allow Discloser sufficient time to challenge such\nsubpoena or order if Discloser elects to do so. Recipient shall cooperate fully with Discloser, at Discloser’s expense, in challenging\nany subpoena or order requiring the disclosure of Confidential Information. Should Discloser decide not to challenge any such\nsubpoena or order, then Recipient or the Recipient Representative, as applicable, may disclose such information as, in the\nreasonable judgment of Recipient’s counsel, is required to be disclosed under such subpoena or order. Discloser shall advise\nRecipient within five (5) business days of receipt of notice thereof whether Discloser intends to challenge the subpoena or order.\nG. Recipient hereby acknowledges and agrees that neither Discloser nor any Discloser Representative makes any representations or\nwarranties whatsoever, express or implied, as to the accuracy, completeness or correctness of any Confidential Information supplied\nhereunder, nor shall any such representations or warranties be implied. Neither Discloser nor Discloser’s officers, directors or\nshareholders nor any of the Discloser Representatives shall have any liability whatsoever to Recipient or any Recipient\nRepresentative arising out of or resulting from the use of or reliance on any Confidential Information. Discloser retains the right to\ndetermine, in its sole discretion, what information, properties and personnel it wishes to make available to Recipient hereunder.\n15. The Parties acknowledge that in order to facilitate the Services, it may be necessary for Representative to introduce the Customers to the\nCompany for direct discussions regarding the sales of products. The Company hereby expressly agrees not to, directly or indirectly\nthrough one or more of the Company’s affiliates or intermediaries, take any action for sole purpose of depriving the Representative of\nany commission that would otherwise be payable with respect to such sales.\n16. Nothing in this Agreement shall be construed as constituting any offer by, or as creating any obligation on the part of, either Party to\nenter into any transaction with the other or with any other person or entity.\n17. The Parties agree that, because an award of money damages may be inadequate for any breach of Section 11 of this Agreement, and any\nsuch breach may cause the non-breaching Party irreparable harm, in the event of a breach or threatened breach of the terms of this\nAgreement by a Party, the non-breaching Party shall be entitled, without requirement of posting a bond or other security, to an\ninjunction or decree of specific performance prohibiting any such breach or disclosure or misuse of any Confidential Information. In\naddition to injunctive relief, the non-breaching Party shall have all other rights and remedies afforded it by law.\n13\n18. This Agreement shall be construed, governed by, enforced and interpreted, and the relationship between the Parties determined in\naccordance with, the laws of the State of Texas without giving effect to any choice or conflict of laws rules, provisions or principles\n(whether of the State of Texas or any other jurisdiction) the application of which would result in the application of the laws of any\njurisdiction other than the State of Texas.\n19. The Parties will attempt in good faith to resolve any dispute arising out of or relating to this Agreement or the construction\ninterpretation, performance, breach, termination, enforceability or validity hereof (each a “Dispute”) through discussions between their\nrespective representatives. Any Dispute that cannot be resolved through discussions between the Parties’ respective representatives\narising out of or relating to this Agreement, including the annexes and schedules hereto, will be fully and finally settled by arbitration in\naccordance with the provisions set forth in Section 13 of the Representative’s Employment Agreement with the Company, dated as of\nOctober 19, 2012. Notwithstanding this provision, nothing contained herein shall in any way be deemed to prohibit the Company or the\nRepresentative from seeking temporary equitable relief from a court of competent jurisdiction in the event of a breach or threatened\nbreach by the other party of this Agreement.\n20. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be (i) sent by an overnight\ncourier service that provides proof of receipt, (ii) mailed by registered or certified mail (postage prepaid, return receipt requested) or (iii)\ntelecopied to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):\nIf to Company:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North, Building 6\nSpring, Texas, USA 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\nIf to Representative:\nOffshore and Marine Holdings LLC\nStephen D. Cope\n7303 Augusta Drive\nSpring, TX 77389\nTel: (713) 253-0130\nIf this Agreement provides for a designated period after a notice within which to perform an act, such period shall commence on the\ndate of receipt or refusal of the notice. If this Agreement requires the exercise of a right by notice on or before a certain date or within a\ndesignated period, such right shall be deemed exercised on the date of delivery to the courier service, tele-copying or mailing of the\nnotice pursuant to which such right is exercised.\n14\n21. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior\nrepresentations, agreements and understandings, whether oral or written, between the Parties with respect to the subject matter hereof.\nNo representations or warranties have been made relating to the subject matter hereof other than those expressly set forth in this\nAgreement. This Agreement may not be amended, modified or supplemented except by means of a written instrument designated as\nsuch and executed by an authorized officer of each of the Parties.\n22. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court, tribunal or other forum of competent\njurisdiction for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement\n(including, without limitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid,\nillegal or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision will be deemed reformed to the extent\nnecessary to conform to applicable Law and to give maximum effect to the intent of the Parties, or, if that is not possible, such provision\nshall be deemed severed from this Agreement; and (c) to the fullest extent possible, the provisions of this Agreement (including, without\nlimitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid, illegal or unenforceable,\nthat is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held\ninvalid, illegal or unenforceable.\n23. Either Party hereto may terminate this Agreement by thirty (30) days written notice to the other Party at its address specified herein, but\nno such termination shall affect obligations already in effect.\n24. This Agreement is personal to each of the Parties and may not be assigned or otherwise transferred, in whole or in part, by either Party\nwithout the prior written consent of the other Party.\n25. No failure or delay by a Party in exercising its rights, powers or privileges under this Agreement shall constitute a waiver thereof, nor\nshall any single or partial exercise of such rights, powers or privileges preclude any further exercise thereof. No waiver of any provision\nshall be binding upon a Party unless it is in writing and signed by an authorized officer of such Party.\n15\n26. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original copy of this Agreement, but\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The Parties may sign and deliver this\nAgreement by facsimile transmission or by electronic mail in “portable document format.” Each Party agrees that the delivery of this\nAgreement by facsimile or by electronic mail in “portable document format” shall have the same force and effect as delivery of original\nsignatures, and that each Party may use such facsimile or electronic mail signatures as evidence of the execution and delivery of this\nAgreement by all Parties to the same extent that an original signature could be used.\n[SIGNATURES ON FOLLOWING PAGE]\n16\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nIntegrated Drilling Equipment Holdings Corp.\nBy (Print Name): N. Michael Dion\nSignature: /s/ Michael Dion\nTitle: CFO\nDate: April 7, 2014\nOffshore and Marine Holdings LLC\nBy (Print Name): Steve Cope\nSignature: /s/ Steve Cope\nTitle: President/CEO\nDate: April 7, 2014\nSignature Page to Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nAPPENDIX A\nREPRESENTATION AREA.\nThe Representation Area is the United States of America and Mexico. Additional areas and projects may be determined on a case by case basis in\nthe Company’s discretion.\nAPPENDIX B\nSPECIFIC PROJECT AND COMMISSION BASIS\n(Specific Projects, details and commission basis are to be determined on a case by case basis. The initial commission to be included will\nbe 1% of the net selling price of any order or project)\nAPPENDIX C\nRESTRICTED CUSTOMERS.\n·\nLas Isla*\n·\nBig Dog Drilling*\n·\nIHSA\n·\nSavannah Drilling\n·\nLewis\n·\nSidewinder\n·\nSavanna\n·\nNoram\n·\nEurasia Drilling\n·\nIHSA\n·\nTacker\n·\nPEMSA*\n·\nGPA\n·\nLatina*\n·\nGSM*\n·\nGoimar*\n·\nCentral*\n·\nEnsign\n·\nFelderhoff\n·\nArcher*\n·\nLukoil\n·\nSevmash\n·\nGazprom\n·\nRosneft\n·\nSidewinder\n·\nEnsign\n·\nRUS Industrial\n·\nCRC Evans\n·\nBaker Hughes\n·\nOklahoma Rig Co.\n·\nShale Pumps\n·\nServas Energy\n·\nAztec Drilling\n·\nIndependence Drilling\n·\nSidewinder\n·\nPatterson UTI\n·\nNabors\n·\nEnsign\n·\nScana\n·\nEnergy Water Solutions\n·\nNDIL\n*Projects undertaken by entities identified with an asterisk shall not be subject to the restrictions placed on Restricted Customers for any such\nprojects or PEMEX licitations that are received, initiated or quoted after the date of the Company’s March 24, 2014 pipeline report. For the\navoidance of doubt, any projects that have not been quoted prior to the March 24, 2014 pipeline report and are received, initiated or quoted after\nthe March 24, 2014 pipeline report shall not be subject to the restrictions placed on Restricted Customers in Section 4(f) of this Agreement.\nSCHEDULE 1\nANNUAL CERTIFICATION OF COMPLIANCE\nFOR INTERNATIONAL\nCONSULTANTS, AGENTS AND REPRESENTATIVES\nI [•] a duly authorized representative of [•] (the “Representative”) do hereby certify for and on behalf of such company, that neither I, nor to\nmy knowledge any other person, including but not limited to every officer, director, stockholder, employee, representative and agent of\nRepresentative or its affiliates has made any offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift,\npromise to give, or authorization of the giving of anything of value to any Public Official (defined below) to obtain, retain, or direct business\nor to secure any improper advantage for myself, the Representative, Representative’s affiliates, or any affiliate in violation of any Anti-\nCorruption Laws (defined below).\n"Public Official" means any officer or employee of a government (or any department, agency, or instrumentality thereof, including, but not\nlimited to, national oil companies), a political party, or a public international organization (such as the World Bank), or any person acting in\nan official capacity for or on behalf of any such government, department, agency, or instrumentality, or for or on behalf of any public\ninternational organization, or any political party or official thereof or candidate for political office. “Anti-Corruption Laws” means the\nUnited States Foreign Corrupt Practices Act (“FCPA”) and the anti-corruption and bribery laws of the representation Area, the jurisdiction(s)\nwhere Representative and its applicable affiliates are organized, and the country (ies) where the representation Services will be performed.\nI hereby confirm and agree that should I learn of any of the prohibited activities described above, or if there are any changes in the\nownership or control of the Representative or its affiliates, I will immediately advise:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North\nBuilding 6\nSpring, Texas 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\n(Signatures on Next Page)\nI hereby confirm that neither I nor anyone else at [•] or any affiliate that is providing Services is a Public Official.\nI certify under penalty of perjury that the foregoing is true and correct.\nDate:\nBy:\nName:\nTitle:
d50b5f4cf1b059aed9adb4d3d8953d84.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nPARALLEL PETROLEUM CORPORATION\n1004 N. Big Spring, Suite 400\nMidland, Texas 79701\nTelephone (432) 684-3727\nFax (432) 685-6572\nJune 30, 2009\nSTRICTLY CONFIDENTIAL\nApollo Management VII, L.P.\n9 West 57 Street, 43 Floor\nNew York, New York 10019\nAttention: Sam Oh\nLadies and Gentlemen:\nIn connection with the consideration of a possible transaction (the “Transaction”) between Parallel Petroleum Corporation, a Delaware\ncorporation (the “Company”), and Apollo Management VII, L.P. (“Buyer”), the Company and Buyer acknowledge that the Company may make\navailable to Buyer from time to time certain information concerning the Company’s business, financial condition, operations, assets and liabilities,\nwhether prepared by the Company, its advisors or otherwise. As a condition to entering into any discussions relating to the Transaction, Buyer agrees\nto comply with its obligations hereunder and to take or abstain from taking certain other actions as hereinafter set forth.\n1. Evaluation Material; Non-Disclosure Obligation and Use Restriction. The term “Evaluation Material” shall mean all information, data\nand analysis furnished by the Company or its Representatives to Buyer or its Representatives relating to the Company or the Transaction, and any\nanalyses, compilations, studies, documents or other material prepared by Buyer or its Representatives containing or based in whole or in part upon\nsuch information, data or analysis, but does not include information, data or analysis that (i) is already in the possession of Buyer or its\nRepresentatives or becomes subsequently available to Buyer or its Representatives on a non-confidential basis from a source not known or\nreasonably suspected by Buyer or its Representatives to be bound by a confidentiality agreement or secrecy obligation to the Company, (ii) is or\nbecomes generally available to or known by the public other than as a result of a breach of this letter agreement by Buyer or its Representatives or\n(iii) has already been or is hereafter independently acquired or developed by Buyer or any of its Representatives without violating any confidentiality\nagreement or secrecy obligation to the Company. “Representatives” shall mean such party’s affiliates and its and their respective, directors, officers,\nemployees, agents, lenders, potential financing sources and advisers (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) and representatives of the foregoing. Buyer recognizes and acknowledges the potential competitive value of the Evaluation\nMaterial and the damage that could result from the disclosure thereof to third parties. Accordingly, Buyer agrees that the Evaluation Material will be\nused solely for the purpose of evaluating the Transaction and related actions, and that such information will be kept confidential by Buyer and its\nRepresentatives; provided, however, that (w) such information may be disclosed by Buyer to its Representatives who need to know such information\nfor the purpose of evaluating the Transaction or their participation therein (it being understood that such Representatives shall be informed of the\nconfidential nature of the information), (x) it shall not constitute a breach of this letter agreement if any disclosure of such information is made with\nthe Company’s prior written consent, (y) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such\ninformation to the extent that Buyer believes, based on the advice of counsel, that it is legally required to disclose such information in order to avoid\ncommitting a violation of any law, rule or regulation, including any rules or regulations of any securities association, stock exchange or national\nsecurities quotation system, provided that, to the extent permitted by law or regulation, Buyer provides notice to the Company as promptly as\npracticable of the proposed disclosure and takes the other actions required in connection with a required disclosure pursuant to Section 3 below and\n(z) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such information to the\nth\nrd\nextent that such disclosure is permitted pursuant to Section 3 below. Buyer agrees to be responsible for any breach of the terms of this letter\nagreement that are applicable to Representatives by any of its Representatives.\n2. Non-Disclosure of Discussions. Each party agrees that, without the prior written consent of the other party, such party and its\nRepresentatives will not disclose to any other person (other than such party’s Representatives on a need to know basis) the fact that any Evaluation\nMaterial has been made available hereunder, that discussions or negotiations are taking place concerning a possible Transaction or any of the terms,\nconditions or other facts with respect to the possible Transaction (including the status thereof); provided, that a party may make such disclosure if\n(i) based on the advice of such party’s counsel, such disclosure is necessary to avoid committing a violation of, or to insure compliance with, any\nlaws, rules or regulations, including any rules or regulations of any securities association, stock exchange or national securities quotation system,\n(ii) to the extent permitted by law or regulation, the disclosing party provides notice to the other party of the proposed disclosure and cooperates in\ngood faith with respect to the timing, manner and content of such disclosure (to the extent consistent with its obligation to make disclosure) or\n(iii) the aforementioned facts are or become generally available to or known by the public other than as a result of a breach of this letter agreement\nby such party.\n3. Required Disclosure. In the event that Buyer or its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any other facts or information, the disclosure of which is prohibited by this letter agreement, Buyer shall, to the extent permitted by law\nor regulation, (i) provide the Company with notice as promptly as practicable of any such request or requirement so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement and (ii) consult with the Company\nas to the advisability of taking legally available steps to resist or narrow such request. If, in the absence of a protective order or other remedy, or the\nreceipt of a waiver by the Company, Buyer or any of its Representatives should nonetheless, based on the advice of such party’s counsel, disclose the\nEvaluation Material and/or the facts or information covered by Section 2, Buyer or its Representative may, without liability hereunder, disclose only\nthat portion of the Evaluation Material and/or such facts or information that such counsel advises is legally required to be disclosed; provided that, to\nthe extent permitted by law or regulation, Buyer gives the Company written notice of the Evaluation Material and/or such facts or other information\nto be disclosed as promptly as practicable and exercises its commercially reasonable efforts to preserve the confidentiality of the Evaluation Material\nand/or such facts or other information, including, without limitation, by cooperating with the Company to obtain an appropriate protective order or\nother reliable assurance that confidential treatment will be accorded to the Evaluation Material and/or such facts or information.\n4. Termination of Discussions. If either party decides that it does not wish to proceed with discussions or negotiations relating to a Transaction\nwith the other party, the party so deciding shall promptly inform the other party of that decision. At such time, or at any time for any reason, upon the\nwritten request of the Company, Buyer will as promptly as practicable destroy all written Evaluation Material provided by the Company. In the event\nof such request, all other Evaluation Material prepared by Buyer shall be destroyed, and in no event shall Buyer be obligated to disclose or provide\nthe Evaluation Material prepared by it or its Representatives to the Company. Notwithstanding the foregoing, (i) Buyer and its Representatives may\nkeep archival copies of any Evaluation Materials for legal and compliance purposes or to comply with any bona fide records retention policy and\n(ii) each party and its Representatives will continue to be bound by their obligations of confidentiality hereunder for a period of one (1) year from the\ndate hereof.\n5. Standstill Agreement. For a period of one (1) year from the date hereof, Buyer agrees that it shall not, without the prior written consent of\nthe Company, directly or indirectly, alone or in concert with others, (a) acquire, offer to acquire, or agree to acquire, by purchase, or otherwise,\nownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act of 1934) of (i) more than 5%\nof any class of voting equity securities issued by the Company, or (ii) any debt instruments issued by the Company,\n2\nincluding, without limitation, the Company’s 10 /4% Senior Notes Due 2014, or promissory notes made and issued by the Company to its\ncommercial bank lenders, (b) propose to enter into any merger or business combination involving the Company or any of its subsidiaries, (c) make,\nor in any way participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the United States Securities and Exchange\nCommission) with respect to the securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving\nof consents with respect to, any securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control (whether through a\n“group,” as such term is used in Rule 13d-5 of the Securities Exchange Act of 1934 or otherwise) the management, board of directors, policies or\naffairs of the Company or any of its subsidiaries, (e) disclose any intention, plan or arrangement inconsistent with any of the foregoing or\n(f) encourage any third party to do any of the foregoing. As used in this Section 5, the term “securities” shall mean any securities of the Company\nand any direct or indirect warrants, rights or options to acquire securities of the Company.\n6. Procedure for Communications. It is understood that the parties will arrange for appropriate contacts for due diligence purposes. Unless\notherwise agreed, all (i) communications regarding a possible Transaction, (ii) requests for information and (iii) discussions or questions regarding\nprocedures, will be submitted or directed to the Company.\n7. Non-solicitation of Employees. Buyer agrees that for the term of one (1) year from the date hereof that it will not offer employment or\nemploy any employee of the Company or its affiliates with whom Buyer has had contact or who became known to Buyer in connection with its\nconsideration of the Transaction, other than any person who (i) has been terminated by the Company or any of its affiliates prior to commencement\nof employment discussions between Buyer and such person, or (ii) responds to a general or public solicitation of employment not targeted at such\nperson (including solicitations in a trade magazine or newspaper of general circulation or by a bona fide search firm).\n8. Miscellaneous.\n(a) Unless and until a definitive agreement between the parties with respect to any Transaction has been executed and delivered, neither the\nCompany nor Buyer will be under any legal obligation of any kind whatsoever with respect to a Transaction by virtue of this letter\nagreement or any written or oral expression with respect to such a Transaction by any of its Representatives except for the matters\nspecifically agreed to in this letter agreement. Each party further agrees that neither party shall have any obligation to authorize or pursue\nwith the other party any Transaction. Each party acknowledges and agrees that each reserves the right, in its sole and absolute discretion,\nto reject any and all proposals and to terminate discussions and negotiations with the other at any time.\n(b) It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. The agreements set forth in this letter agreement may be modified or waived only by a separate writing\nbetween the parties hereto.\n(c) Notwithstanding anything herein to the contrary, all of the obligations of the parties hereunder shall (if not sooner terminated) terminate\non the first anniversary of the date hereof; provided, however, that no such termination shall relieve a party from liability for any breach\nby such party of the terms hereof that exists on the date of such termination.\n(d) Buyer understands and agrees that neither the Company nor any of its Representatives has made or makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability to Buyer or any of\nits Representatives resulting from the use of the Evaluation Material or any errors in or omissions therefrom, except in each case to the\nextent expressly provided in any definitive agreement.\n(e) Each party hereby represents that it has the power and authority to execute and deliver this letter agreement, and that it has been duly\nauthorized and constitutes a valid and binding agreement of such\n3\n1\nparty, enforceable in accordance with its terms. This letter agreement shall be binding upon the respective successors in interest of the\nparties hereto and shall inure to the benefit of, and be enforceable by, the respective successors in interest of the parties hereto.\n(f) This agreement contains the entire agreement and understanding between the parties as to the subject matter hereof and supersedes any\nprior agreements, commitments, representations, writings and discussions, whether oral or written, relating to that subject matter. If any\nprovision of this letter agreement is held by a court of competent jurisdiction in a final, non-appealable judgment to be invalid, illegal or\nunenforceable, the remainder of the provisions of this letter shall remain in full force and effect and any invalid, illegal or unenforceable\nprovision shall be replaced with a valid, legal or enforceable provision, the effect of which comes as close as possible to that of the\ninvalid, illegal or unenforceable provision.\n(g) The validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Texas without regard to conflicts-of-law rules or principles.\n(h) This letter agreement may be executed in one or more counterparts. Each such counterpart shall be deemed to be an original instrument,\nbut all such counterparts taken together shall constitute one and the same agreement.\n(i) Buyer agrees that money damages may not be a sufficient remedy for any breach of this letter agreement by Buyer or any of its\nRepresentatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as well as\nreimbursement for legal and other expenses as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this letter agreement, but shall be in addition to all other remedies available at law or equity. In the event of\nlitigation concerning this letter agreement, if a court of competent jurisdiction determines in a final non-appealable order that a party has\nbreached this letter agreement, then such party shall be liable for and pay the other party’s reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeal therefrom or review thereof.\n(j) The Company agrees that, without prejudice to any claim it may have against Buyer or any of Buyer’s affiliates, no proceedings in\nrespect of any claim the Company may have against Buyer or its affiliates may be taken against Buyer’s or its affiliates’ directors,\nofficers or employees or Buyer’s or its affiliates’ controlling persons, partners, members or agents to the extent such controlling persons,\npartners, members or agents are individuals.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned.\nSincerely,\nPARALLEL PETROLEUM CORPORATION\nBy:\n/s/ LARRY C. OLDHAM\nLarry C. Oldham,\nPresident and Chief Executive Officer\nACCEPTED AND AGREED as of\nJune 30, 2009\nAPOLLO MANAGEMENT VII, L.P.\nBy: AIF VII Management, LLC\nits General Partner\nBy:\n/s/ WENDY K. MODLIN\nName:\nTitle:\nWendy K. Modlin\nVice President\n4	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nPARALLEL PETROLEUM CORPORATION\n1004 N. Big Spring, Suite 400\nMidland, Texas 79701\nTelephone (432) 684-3727\nFax (432) 685-6572\nJune 30, 2009\nSTRICTLY CONFIDENTIAL\nApollo Management VII, L.P.\n9 West 57th Street, 43rd Floor\nNew York, New York 10019\nAttention: Sam Oh\nLadies and Gentlemen:\nIn connection with the consideration of a possible transaction (the “Transaction”) between Parallel Petroleum Corporation, a Delaware\ncorporation (the “Company”), and Apollo Management VII, L.P. (“Buyer”), the Company and Buyer acknowledge that the Company may make\navailable to Buyer from time to time certain information concerning the Company’s business, financial condition, operations, assets and liabilities,\nwhether prepared by the Company, its advisors or otherwise. As a condition to entering into any discussions relating to the Transaction, Buyer agrees\nto comply with its obligations hereunder and to take or abstain from taking certain other actions as hereinafter set forth.\n1. Evaluation Material; Non-Disclosure Obligation and Use Restriction. The term “Evaluation Material” shall mean all information, data\nand analysis furnished by the Company or its Representatives to Buyer or its Representatives relating to the Company or the Transaction, and any\nanalyses, compilations, studies, documents or other material prepared by Buyer or its Representatives containing or based in whole or in part upon\nsuch information, data or analysis, but does not include information, data or analysis that (i) is already in the possession of Buyer or its\nRepresentatives or becomes subsequently available to Buyer or its Representatives on a non-confidential basis from a source not known or\nreasonably suspected by Buyer or its Representatives to be bound by a confidentiality agreement or secrecy obligation to the Company, (ii) is or\nbecomes generally available to or known by the public other than as a result of a breach of this letter agreement by Buyer or its Representatives or\n(iii) has already been or is hereafter independently acquired or developed by Buyer or any of its Representatives without violating any confidentiality\nagreement or secrecy obligation to the Company. “Representatives” shall mean such party’s affiliates and its and their respective, directors, officers,\nemployees, agents, lenders, potential financing sources and advisers (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) and representatives of the foregoing. Buyer recognizes and acknowledges the potential competitive value of the Evaluation\nMaterial and the damage that could result from the disclosure thereof to third parties. Accordingly, Buyer agrees that the Evaluation Material will be\nused solely for the purpose of evaluating the Transaction and related actions, and that such information will be kept confidential by Buyer and its\nRepresentatives; provided, however, that (w) such information may be disclosed by Buyer to its Representatives who need to know such information\nfor the purpose of evaluating the Transaction or their participation therein (it being understood that such Representatives shall be informed of the\nconfidential nature of the information), (x) it shall not constitute a breach of this letter agreement if any disclosure of such information is made with\nthe Company’s prior written consent, (y) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such\ninformation to the extent that Buyer believes, based on the advice of counsel, that it is legally required to disclose such information in order to avoid\ncommitting a violation of any law, rule or regulation, including any rules or regulations of any securities association, stock exchange or national\nsecurities quotation system, provided that, to the extent permitted by law or regulation, Buyer provides notice to the Company as promptly as\npracticable of the proposed disclosure and takes the other actions required in connection with a required disclosure pursuant to Section 3 below and\n(z) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such information to the\nextent that such disclosure is permitted pursuant to Section 3 below. Buyer agrees to be responsible for any breach of the terms of this letter\nagreement that are applicable to Representatives by any of its Representatives.\n2. Non-Disclosure of Discussions. Each party agrees that, without the prior written consent of the other party, such party and its\nRepresentatives will not disclose to any other person (other than such party’s Representatives on a need to know basis) the fact that any Evaluation\nMaterial has been made available hereunder, that discussions or negotiations are taking place concerning a possible Transaction or any of the terms,\nconditions or other facts with respect to the possible Transaction (including the status thereof); provided, that a party may make such disclosure if\n(i) based on the advice of such party’s counsel, such disclosure is necessary to avoid committing a violation of, or to insure compliance with, any\nlaws, rules or regulations, including any rules or regulations of any securities association, stock exchange or national securities quotation system,\n(ii) to the extent permitted by law or regulation, the disclosing party provides notice to the other party of the proposed disclosure and cooperates in\ngood faith with respect to the timing, manner and content of such disclosure (to the extent consistent with its obligation to make disclosure) or\n(iii) the aforementioned facts are or become generally available to or known by the public other than as a result of a breach of this letter agreement\nby such party.\n3. Required Disclosure. In the event that Buyer or its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any other facts or information, the disclosure of which is prohibited by this letter agreement, Buyer shall, to the extent permitted by law\nor regulation, (i) provide the Company with notice as promptly as practicable of any such request or requirement so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement and (ii) consult with the Company\nas to the advisability of taking legally available steps to resist or narrow such request. If, in the absence of a protective order or other remedy, or the\nreceipt of a waiver by the Company, Buyer or any of its Representatives should nonetheless, based on the advice of such party’s counsel, disclose the\nEvaluation Material and/or the facts or information covered by Section 2, Buyer or its Representative may, without liability hereunder, disclose only\nthat portion of the Evaluation Material and/or such facts or information that such counsel advises is legally required to be disclosed; provided that, to\nthe extent permitted by law or regulation, Buyer gives the Company written notice of the Evaluation Material and/or such facts or other information\nto be disclosed as promptly as practicable and exercises its commercially reasonable efforts to preserve the confidentiality of the Evaluation Material\nand/or such facts or other information, including, without limitation, by cooperating with the Company to obtain an appropriate protective order or\nother reliable assurance that confidential treatment will be accorded to the Evaluation Material and/or such facts or information.\n4. Termination of Discussions. If either party decides that it does not wish to proceed with discussions or negotiations relating to a Transaction\nwith the other party, the party so deciding shall promptly inform the other party of that decision. At such time, or at any time for any reason, upon the\nwritten request of the Company, Buyer will as promptly as practicable destroy all written Evaluation Material provided by the Company. In the event\nof such request, all other Evaluation Material prepared by Buyer shall be destroyed, and in no event shall Buyer be obligated to disclose or provide\nthe Evaluation Material prepared by it or its Representatives to the Company. Notwithstanding the foregoing, (i) Buyer and its Representatives may\nkeep archival copies of any Evaluation Materials for legal and compliance purposes or to comply with any bona fide records retention policy and\n(ii) each party and its Representatives will continue to be bound by their obligations of confidentiality hereunder for a period of one (1) year from the\ndate hereof.\n5. Standstill Agreement. For a period of one (1) year from the date hereof, Buyer agrees that it shall not, without the prior written consent of\nthe Company, directly or indirectly, alone or in concert with others, (a) acquire, offer to acquire, or agree to acquire, by purchase, or otherwise,\nownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act of 1934) of (i) more than 5%\nof any class of voting equity securities issued by the Company, or (ii) any debt instruments issued by the Company,\n2\nincluding, without limitation, the Company’s 10 /4% Senior Notes Due 2014, or promissory notes made and issued by the Company to its\ncommercial bank lenders, (b) propose to enter into any merger or business combination involving the Company or any of its subsidiaries, (c) make,\nor in any way participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the United States Securities and Exchange\nCommission) with respect to the securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving\nof consents with respect to, any securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control (whether through a\n“group,” as such term is used in Rule 13d-5 of the Securities Exchange Act of 1934 or otherwise) the management, board of directors, policies or\naffairs of the Company or any of its subsidiaries, (e) disclose any intention, plan or arrangement inconsistent with any of the foregoing or\n(f) encourage any third party to do any of the foregoing. As used in this Section 5, the term “securities” shall mean any securities of the Company\nand any direct or indirect warrants, rights or options to acquire securities of the Company.\n6. Procedure for Communications. It is understood that the parties will arrange for appropriate contacts for due diligence purposes. Unless\notherwise agreed, all (i) communications regarding a possible Transaction, (ii) requests for information and (iii) discussions or questions regarding\nprocedures, will be submitted or directed to the Company.\n7. Non-solicitation of Employees. Buyer agrees that for the term of one (1) year from the date hereof that it will not offer employment or\nemploy any employee of the Company or its affiliates with whom Buyer has had contact or who became known to Buyer in connection with its\nconsideration of the Transaction, other than any person who (i) has been terminated by the Company or any of its affiliates prior to commencement\nof employment discussions between Buyer and such person, or (ii) responds to a general or public solicitation of employment not targeted at such\nperson (including solicitations in a trade magazine or newspaper of general circulation or by a bona fide search firm).\n8. Miscellaneous.\n(a) Unless and until a definitive agreement between the parties with respect to any Transaction has been executed and delivered, neither the\nCompany nor Buyer will be under any legal obligation of any kind whatsoever with respect to a Transaction by virtue of this letter\nagreement or any written or oral expression with respect to such a Transaction by any of its Representatives except for the matters\nspecifically agreed to in this letter agreement. Each party further agrees that neither party shall have any obligation to authorize or pursue\nwith the other party any Transaction. Each party acknowledges and agrees that each reserves the right, in its sole and absolute discretion,\nto reject any and all proposals and to terminate discussions and negotiations with the other at any time.\n(b) TItis understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. The agreements set forth in this letter agreement may be modified or waived only by a separate writing\nbetween the parties hereto.\n(c) Notwithstanding anything herein to the contrary, all of the obligations of the parties hereunder shall (if not sooner terminated) terminate\non the first anniversary of the date hereof; provided, however, that no such termination shall relieve a party from liability for any breach\nby such party of the terms hereof that exists on the date of such termination.\n(d) Buyer understands and agrees that neither the Company nor any of its Representatives has made or makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability to Buyer or any of\nits Representatives resulting from the use of the Evaluation Material or any errors in or omissions therefrom, except in each case to the\nextent expressly provided in any definitive agreement.\n(e) Each party hereby represents that it has the power and authority to execute and deliver this letter agreement, and that it has been duly\nauthorized and constitutes a valid and binding agreement of such\n3\n®\n(8\n(h)\n()\n0\nparty, enforceable in accordance with its terms. This letter agreement shall be binding upon the respective successors in interest of the\nparties hereto and shall inure to the benefit of, and be enforceable by, the respective successors in interest of the parties hereto.\nThis agreement contains the entire agreement and understanding between the parties as to the subject matter hereof and supersedes any\nprior agreements, commitments, representations, writings and discussions, whether oral or written, relating to that subject matter. If any\nprovision of this letter agreement is held by a court of competent jurisdiction in a final, non-appealable judgment to be invalid, illegal or\nunenforceable, the remainder of the provisions of this letter shall remain in full force and effect and any invalid, illegal or unenforceable\nprovision shall be replaced with a valid, legal or enforceable provision, the effect of which comes as close as possible to that of the\ninvalid, illegal or unenforceable provision.\nThe validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Texas without regard to conflicts-of-law rules or principles.\nThis letter agreement may be executed in one or more counterparts. Each such counterpart shall be deemed to be an original instrument,\nbut all such counterparts taken together shall constitute one and the same agreement.\nBuyer agrees that money damages may not be a sufficient remedy for any breach of this letter agreement by Buyer or any of its\nRepresentatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as well as\nreimbursement for legal and other expenses as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this letter agreement, but shall be in addition to all other remedies available at law or equity. In the event of\nlitigation concerning this letter agreement, if a court of competent jurisdiction determines in a final non-appealable order that a party has\nbreached this letter agreement, then such party shall be liable for and pay the other party’s reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeal therefrom or review thereof.\nThe Company agrees that, without prejudice to any claim it may have against Buyer or any of Buyer’s affiliates, no proceedings in\nrespect of any claim the Company may have against Buyer or its affiliates may be taken against Buyer’s or its affiliates” directors,\nofficers or employees or Buyer’s or its affiliates’ controlling persons, partners, members or agents to the extent such controlling persons,\npartners, members or agents are individuals.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned. Sincerely,\nPARALLEL PETROLEUM CORPORATION\nBy: /s/  LARRY C. OLDHAM\nLarry C. Oldham,\nPresident and Chief Executive Officer\nACCEPTED AND AGREED as of June 30, 2009 APOLLO MANAGEMENT VI, L.P. By:\nBy:\nName:\nTitle:\nATF VII Management, LLC its General Partner /s/  WENDY K. MODLIN Wendy K. Modlin\nVice President	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nPARALLEL PETROLEUM CORPORATION\n1004 N. Big Spring, Suite 400\nMidland, Texas 79701\nTelephone (432) 684-3727\nFax (432) 685-6572\nJune 30, 2009\nSTRICTLY CONFIDENTIAL\nApollo Management VII, L.P.\n9 West 57th Street, 43rd Floor\nNew York, New York 10019\nAttention: Sam Oh\nLadies and Gentlemen:\nIn connection with the consideration of a possible transaction (the "Transaction") between Parallel Petroleum Corporation, a Delaware\ncorporation (the "Company"), and Apollo Management VII, L.P. ("Buyer"), the Company and Buyer acknowledge that the Company may make\navailable to Buyer from time to time certain information concerning the Company's business, financial condition, operations, assets and liabilities,\nwhether prepared by the Company, its advisors or otherwise. As a condition to entering into any discussions relating to the Transaction, Buyer agrees\nto comply with its obligations hereunder and to take or abstain from taking certain other actions as hereinafter set forth.\n1. Evaluation Material; Non-Disclosure Obligation and Use Restriction. The term "Evaluation Material" shall mean all information, data\nand analysis furnished by the Company or its Representatives to Buyer or its Representatives relating to the Company or the Transaction, and any\nanalyses, compilations, studies, documents or other material prepared by Buyer or its Representatives containing or based in whole or in part upon\nsuch information, data or analysis, but does not include information, data or analysis that (i) is already in the possession of Buyer or its\nRepresentatives or becomes subsequently available to Buyer or its Representatives on a non-confidential basis from a source not known or\nreasonably suspected by Buyer or its Representatives to be bound by a confidentiality agreement or secrecy obligation to the Company, (ii) is\nor\nbecomes generally available to or known by the public other than as a result of a breach of this letter agreement by Buyer or its Representatives or\n(iii) has already been or is hereafter independently acquired or developed by Buyer or any of its Representatives without violating any confidentiality\nagreement or secrecy obligation to the Company. "Representatives" shall mean such party's affiliates and its and their respective, directors, officers,\nemployees, agents, lenders, potential financing sources and advisers (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) and representatives of the foregoing. Buyer recognizes and acknowledges the potential competitive value of the Evaluation\nMaterial and the damage that could result from the disclosure thereof to third parties. Accordingly, Buyer agrees that the Evaluation Material will be\nused solely for the purpose of evaluating the Transaction and related actions, and that such information will be kept confidential by Buyer and its\nRepresentatives; provided, however, that (w) such information may be disclosed by Buyer to its Representatives who need to know such information\nfor the purpose of evaluating the Transaction or their participation therein (it being understood that such Representatives shall be informed of the\nconfidential nature of the information), (x) it shall not constitute a breach of this letter agreement if any disclosure of such information is made with\nthe Company's prior written consent, (y) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such\ninformation to the extent that Buyer believes, based on the advice of counsel, that it is legally required to disclose such information in order to avoid\ncommitting a violation of any law, rule or regulation, including any rules or regulations of any securities association, stock exchange or national\nsecurities quotation system, provided that, to the extent permitted by law or regulation, Buyer provides notice to the Company as promptly as\npracticable of the proposed disclosure and takes the other actions required in connection with a required disclosure pursuant to Section 3 below\nand\n(z) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such information to the\nextent that such disclosure is permitted pursuant to Section 3 below. Buyer agrees to be responsible for any breach of the terms of this letter\nagreement that are applicable to Representatives by any of its Representatives.\n2. Non-Disclosure of Discussions. Each party agrees that, without the prior written consent of the other party, such party and its\nRepresentatives will not disclose to any other person (other than such party's Representatives on a need to know basis) the fact that any Evaluation\nMaterial\nhas\nbeen\nmade\navailable\nhereunder,\nthat\ndiscussions\nor\nnegotiations\nare\ntaking\nplace\nconcerning\na\npossible\nTransaction\nor\nany\nof\nthe\nterms,\nconditions or other facts with respect to the possible Transaction (including the status thereof); provided, that a party may make such disclosure if\n(i) based on the advice of such party's counsel, such disclosure is necessary to avoid committing a violation of, or to insure compliance with, any\nlaws, rules or regulations, including any rules or regulations of any securities association, stock exchange or national securities quotation system,\n(ii) to the extent permitted by law or regulation, the disclosing party provides notice to the other party of the proposed disclosure and cooperates in\ngood faith with respect to the timing, manner and content of such disclosure (to the extent consistent with its obligation to make disclosure) or\n(iii) the aforementioned facts are or become generally available to or known by the public other than as a result of a breach of this letter agreement\nby such party.\n3. Required Disclosure. In the event that Buyer or its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any other facts or information, the disclosure of which is prohibited by this letter agreement, Buyer shall, to the extent permitted by law\nor regulation, (i) provide the Company with notice as promptly as practicable of any such request or requirement so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement and (ii) consult with the Company\nas to the advisability of taking legally available steps to resist or narrow such request. If, in the absence of a protective order or other remedy, or the\nreceipt of a waiver by the Company, Buyer or any of its Representatives should nonetheless, based on the advice of such party's counsel, disclose the\nEvaluation Material and/or the facts or information covered by Section 2, Buyer or its Representative may, without liability hereunder, disclose only\nthat portion of the Evaluation Material and/or such facts or information that such counsel advises is legally required to be disclosed; provided that, to\nthe extent permitted by law or regulation, Buyer gives the Company written notice of the Evaluation Material and/or such facts or other information\nto be disclosed as promptly as practicable and exercises its commercially reasonable efforts to preserve the confidentiality of the Evaluation Material\nand/or such facts or other information, including, without limitation, by cooperating with the Company to obtain an appropriate protective order or\nother reliable assurance that confidential treatment will be accorded to the Evaluation Material and/or such facts or information.\n4. Termination of Discussions. If either party decides that it does not wish to proceed with discussions or negotiations relating to a Transaction\nwith the other party, the party so deciding shall promptly inform the other party of that decision. At such time, or at any time for any reason, upon the\nwritten request of the Company, Buyer will as promptly as practicable destroy all written Evaluation Material provided by the Company. In the event\nof such request, all other Evaluation Material prepared by Buyer shall be destroyed, and in no event shall Buyer be obligated to disclose or provide\nthe Evaluation Material prepared by it or its Representatives to the Company. Notwithstanding the foregoing, (i) Buyer and its Representatives may\nkeep archival copies of any Evaluation Materials for legal and compliance purposes or to comply with any bona fide records retention policy and\n(ii) each party and its Representatives will continue to be bound by their obligations of confidentiality hereunder for a period of one (1) year from the\ndate hereof.\n5. Standstill Agreement. For a period of one (1) year from the date hereof, Buyer agrees that it shall not, without the prior written consent of\nthe Company, directly or indirectly, alone or in concert with others, (a) acquire, offer to acquire, or agree to acquire, by purchase, or otherwise,\nownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act of 1934) of (i) more than 5%\nof any class of voting equity securities issued by the Company, or (ii) any debt instruments issued by the Company,\n2\nincluding, without limitation, the Company's 1/4% Senior Notes Due 2014, or promissory notes made and issued by the Company to its\ncommercial bank lenders, (b) propose to enter into any merger or business combination involving the Company or any of its subsidiaries, (c) make,\nor in any way participate in, any "solicitation" of "proxies" (as such terms are used in the proxy rules of the United States Securities and Exchange\nCommission) with respect to the securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving\nof consents with respect to, any securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control (whether through a\n"group," as such term is used in Rule 13d-5 of the Securities Exchange Act of 1934 or otherwise) the management, board of directors, policies\nor\naffairs of the Company or any of its subsidiaries, (e) disclose any intention, plan or arrangement inconsistent with any of the foregoing or\n(f) encourage any third party to do any of the foregoing. As used in this Section 5, the term "'securities" shall mean any securities of the Company\nand any direct or indirect warrants, rights or options to acquire securities of the Company.\n6. Procedure for Communications. It is understood that the parties will arrange for appropriate contacts for due diligence purposes. Unless\notherwise agreed, all (i) communications regarding a possible Transaction, (ii) requests for information and (iii) discussions or questions regarding\nprocedures, will be submitted or directed to the Company.\n7. Non-solicitation of Employees. Buyer agrees that for the term of one (1) year from the date hereof that it will not offer employment or\nemploy any employee of the Company or its affiliates with whom Buyer has had contact or who became known to Buyer in connection with its\nconsideration of the Transaction, other than any person who (i) has been terminated by the Company or any of its affiliates prior to commencement\nof\nemployment discussions between Buyer and such person, or (ii) responds to a general or public solicitation of employment not targeted at such\nperson (including solicitations in a trade magazine or newspaper of general circulation or by a bona fide search firm).\n8. Miscellaneous.\n(a)\nUnless and until a definitive agreement between the parties with respect to any Transaction has been executed and delivered, neither the\nCompany nor Buyer will be under any legal obligation of any kind whatsoever with respect to a Transaction by virtue of this letter\nagreement or any written or oral expression with respect to such a Transaction by any of its Representatives except for the matters\nspecifically agreed to in this letter agreement. Each party further agrees that neither party shall have any obligation to authorize or pursue\nwith the other party any Transaction. Each party acknowledges and agrees that each reserves the right, in its sole and absolute discretion,\nto reject any and all proposals and to terminate discussions and negotiations with the other at any time.\n(b)\nIt is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. The agreements set forth in this letter agreement may be modified or waived only by a separate writing\nbetween the parties hereto.\n(c)\nNotwithstanding anything herein to the contrary, all of the obligations of the parties hereunder shall (if not sooner terminated) terminate\non the first anniversary of the date hereof; provided, however, that no such termination shall relieve a party from liability for any breach\nby such party of the terms hereof that exists on the date of such termination.\n(d)\nBuyer understands and agrees that neither the Company nor any of its Representatives has made or makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability to Buyer or any of\nits Representatives resulting from the use of the Evaluation Material or any errors in or omissions therefrom, except in each case to the\nextent expressly provided in any definitive agreement.\n(e) Each party hereby represents that it has the power and authority to execute and deliver this letter agreement, and that it has been duly\nauthorized and constitutes a valid and binding agreement of such\n3\nparty, enforceable in accordance with its terms. This letter agreement shall be binding upon the respective successors in interest of the\nparties hereto and shall inure to the benefit of, and be enforceable by, the respective successors in interest of the parties hereto.\n(f) This agreement contains the entire agreement and understanding between the parties as to the subject matter hereof and supersedes any\nprior agreements, commitments, representations, writings and discussions, whether oral or written, relating to that subject matter. If any\nprovision of this letter agreement is held by a court of competent jurisdiction in a final, non-appealable judgment to be invalid, illegal or\nunenforceable, the remainder of the provisions of this letter shall remain in full force and effect and any invalid, illegal or unenforceable\nprovision shall be replaced with a valid, legal or enforceable provision, the effect of which comes as close as possible to that of the\ninvalid, illegal or unenforceable provision.\n(g)\nThe validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Texas without regard to conflicts-of-law rules or principles.\n(h)\nThis letter agreement may be executed in one or more counterparts. Each such counterpart shall be deemed to be an original instrument,\nbut all such counterparts taken together shall constitute one and the same agreement.\n(i) Buyer agrees that money damages may not be a sufficient remedy for any breach of this letter agreement by Buyer or any of its\nRepresentatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as well as\nreimbursement for legal and other expenses as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this letter agreement, but shall be in addition to all other remedies available at law or equity. In the event of\nlitigation concerning this letter agreement, if a court of competent jurisdiction determines in a final non-appealable order that a party has\nbreached this letter agreement, then such party shall be liable for and pay the other party's reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeal therefrom or review thereof.\n(j)\nThe Company agrees that, without prejudice to any claim it may have against Buyer or any of Buyer's affiliates, no proceedings in\nrespect of any claim the Company may have against Buyer or its affiliates may be taken against Buyer's or its affiliates' directors,\nofficers or employees or Buyer's or its affiliates' controlling persons, partners, members or agents to the extent such controlling persons,\npartners, members or agents are individuals.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned.\nSincerely,\nPARALLEL PETROLEUM CORPORATION\nBy:\n/s/\nLARRY C. OLDHAM\nLarry C. Oldham,\nPresident and Chief Executive Officer\nACCEPTED AND AGREED as of\nJune 30, 2009\nAPOLLO MANAGEMENT VII, L.P.\nBy:\nAIF VII Management, LLC\nits General Partner\nBy:\n/s/ WENDY K. MODLIN\nName:\nWendy K. Modlin\nTitle:\nVice President\n4	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nPARALLEL PETROLEUM CORPORATION\n1004 N. Big Spring, Suite 400\nMidland, Texas 79701\nTelephone (432) 684-3727\nFax (432) 685-6572\nJune 30, 2009\nSTRICTLY CONFIDENTIAL\nApollo Management VII, L.P.\n9 West 57 Street, 43 Floor\nNew York, New York 10019\nAttention: Sam Oh\nLadies and Gentlemen:\nIn connection with the consideration of a possible transaction (the “Transaction”) between Parallel Petroleum Corporation, a Delaware\ncorporation (the “Company”), and Apollo Management VII, L.P. (“Buyer”), the Company and Buyer acknowledge that the Company may make\navailable to Buyer from time to time certain information concerning the Company’s business, financial condition, operations, assets and liabilities,\nwhether prepared by the Company, its advisors or otherwise. As a condition to entering into any discussions relating to the Transaction, Buyer agrees\nto comply with its obligations hereunder and to take or abstain from taking certain other actions as hereinafter set forth.\n1. Evaluation Material; Non-Disclosure Obligation and Use Restriction. The term “Evaluation Material” shall mean all information, data\nand analysis furnished by the Company or its Representatives to Buyer or its Representatives relating to the Company or the Transaction, and any\nanalyses, compilations, studies, documents or other material prepared by Buyer or its Representatives containing or based in whole or in part upon\nsuch information, data or analysis, but does not include information, data or analysis that (i) is already in the possession of Buyer or its\nRepresentatives or becomes subsequently available to Buyer or its Representatives on a non-confidential basis from a source not known or\nreasonably suspected by Buyer or its Representatives to be bound by a confidentiality agreement or secrecy obligation to the Company, (ii) is or\nbecomes generally available to or known by the public other than as a result of a breach of this letter agreement by Buyer or its Representatives or\n(iii) has already been or is hereafter independently acquired or developed by Buyer or any of its Representatives without violating any confidentiality\nagreement or secrecy obligation to the Company. “Representatives” shall mean such party’s affiliates and its and their respective, directors, officers,\nemployees, agents, lenders, potential financing sources and advisers (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) and representatives of the foregoing. Buyer recognizes and acknowledges the potential competitive value of the Evaluation\nMaterial and the damage that could result from the disclosure thereof to third parties. Accordingly, Buyer agrees that the Evaluation Material will be\nused solely for the purpose of evaluating the Transaction and related actions, and that such information will be kept confidential by Buyer and its\nRepresentatives; provided, however, that (w) such information may be disclosed by Buyer to its Representatives who need to know such information\nfor the purpose of evaluating the Transaction or their participation therein (it being understood that such Representatives shall be informed of the\nconfidential nature of the information), (x) it shall not constitute a breach of this letter agreement if any disclosure of such information is made with\nthe Company’s prior written consent, (y) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such\ninformation to the extent that Buyer believes, based on the advice of counsel, that it is legally required to disclose such information in order to avoid\ncommitting a violation of any law, rule or regulation, including any rules or regulations of any securities association, stock exchange or national\nsecurities quotation system, provided that, to the extent permitted by law or regulation, Buyer provides notice to the Company as promptly as\npracticable of the proposed disclosure and takes the other actions required in connection with a required disclosure pursuant to Section 3 below and\n(z) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such information to the\nth\nrd\nextent that such disclosure is permitted pursuant to Section 3 below. Buyer agrees to be responsible for any breach of the terms of this letter\nagreement that are applicable to Representatives by any of its Representatives.\n2. Non-Disclosure of Discussions. Each party agrees that, without the prior written consent of the other party, such party and its\nRepresentatives will not disclose to any other person (other than such party’s Representatives on a need to know basis) the fact that any Evaluation\nMaterial has been made available hereunder, that discussions or negotiations are taking place concerning a possible Transaction or any of the terms,\nconditions or other facts with respect to the possible Transaction (including the status thereof); provided, that a party may make such disclosure if\n(i) based on the advice of such party’s counsel, such disclosure is necessary to avoid committing a violation of, or to insure compliance with, any\nlaws, rules or regulations, including any rules or regulations of any securities association, stock exchange or national securities quotation system,\n(ii) to the extent permitted by law or regulation, the disclosing party provides notice to the other party of the proposed disclosure and cooperates in\ngood faith with respect to the timing, manner and content of such disclosure (to the extent consistent with its obligation to make disclosure) or\n(iii) the aforementioned facts are or become generally available to or known by the public other than as a result of a breach of this letter agreement\nby such party.\n3. Required Disclosure. In the event that Buyer or its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any other facts or information, the disclosure of which is prohibited by this letter agreement, Buyer shall, to the extent permitted by law\nor regulation, (i) provide the Company with notice as promptly as practicable of any such request or requirement so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement and (ii) consult with the Company\nas to the advisability of taking legally available steps to resist or narrow such request. If, in the absence of a protective order or other remedy, or the\nreceipt of a waiver by the Company, Buyer or any of its Representatives should nonetheless, based on the advice of such party’s counsel, disclose the\nEvaluation Material and/or the facts or information covered by Section 2, Buyer or its Representative may, without liability hereunder, disclose only\nthat portion of the Evaluation Material and/or such facts or information that such counsel advises is legally required to be disclosed; provided that, to\nthe extent permitted by law or regulation, Buyer gives the Company written notice of the Evaluation Material and/or such facts or other information\nto be disclosed as promptly as practicable and exercises its commercially reasonable efforts to preserve the confidentiality of the Evaluation Material\nand/or such facts or other information, including, without limitation, by cooperating with the Company to obtain an appropriate protective order or\nother reliable assurance that confidential treatment will be accorded to the Evaluation Material and/or such facts or information.\n4. Termination of Discussions. If either party decides that it does not wish to proceed with discussions or negotiations relating to a Transaction\nwith the other party, the party so deciding shall promptly inform the other party of that decision. At such time, or at any time for any reason, upon the\nwritten request of the Company, Buyer will as promptly as practicable destroy all written Evaluation Material provided by the Company. In the event\nof such request, all other Evaluation Material prepared by Buyer shall be destroyed, and in no event shall Buyer be obligated to disclose or provide\nthe Evaluation Material prepared by it or its Representatives to the Company. Notwithstanding the foregoing, (i) Buyer and its Representatives may\nkeep archival copies of any Evaluation Materials for legal and compliance purposes or to comply with any bona fide records retention policy and\n(ii) each party and its Representatives will continue to be bound by their obligations of confidentiality hereunder for a period of one (1) year from the\ndate hereof.\n5. Standstill Agreement. For a period of one (1) year from the date hereof, Buyer agrees that it shall not, without the prior written consent of\nthe Company, directly or indirectly, alone or in concert with others, (a) acquire, offer to acquire, or agree to acquire, by purchase, or otherwise,\nownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act of 1934) of (i) more than 5%\nof any class of voting equity securities issued by the Company, or (ii) any debt instruments issued by the Company,\n2\nincluding, without limitation, the Company’s 10 /4% Senior Notes Due 2014, or promissory notes made and issued by the Company to its\ncommercial bank lenders, (b) propose to enter into any merger or business combination involving the Company or any of its subsidiaries, (c) make,\nor in any way participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the United States Securities and Exchange\nCommission) with respect to the securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving\nof consents with respect to, any securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control (whether through a\n“group,” as such term is used in Rule 13d-5 of the Securities Exchange Act of 1934 or otherwise) the management, board of directors, policies or\naffairs of the Company or any of its subsidiaries, (e) disclose any intention, plan or arrangement inconsistent with any of the foregoing or\n(f) encourage any third party to do any of the foregoing. As used in this Section 5, the term “securities” shall mean any securities of the Company\nand any direct or indirect warrants, rights or options to acquire securities of the Company.\n6. Procedure for Communications. It is understood that the parties will arrange for appropriate contacts for due diligence purposes. Unless\notherwise agreed, all (i) communications regarding a possible Transaction, (ii) requests for information and (iii) discussions or questions regarding\nprocedures, will be submitted or directed to the Company.\n7. Non-solicitation of Employees. Buyer agrees that for the term of one (1) year from the date hereof that it will not offer employment or\nemploy any employee of the Company or its affiliates with whom Buyer has had contact or who became known to Buyer in connection with its\nconsideration of the Transaction, other than any person who (i) has been terminated by the Company or any of its affiliates prior to commencement\nof employment discussions between Buyer and such person, or (ii) responds to a general or public solicitation of employment not targeted at such\nperson (including solicitations in a trade magazine or newspaper of general circulation or by a bona fide search firm).\n8. Miscellaneous.\n(a) Unless and until a definitive agreement between the parties with respect to any Transaction has been executed and delivered, neither the\nCompany nor Buyer will be under any legal obligation of any kind whatsoever with respect to a Transaction by virtue of this letter\nagreement or any written or oral expression with respect to such a Transaction by any of its Representatives except for the matters\nspecifically agreed to in this letter agreement. Each party further agrees that neither party shall have any obligation to authorize or pursue\nwith the other party any Transaction. Each party acknowledges and agrees that each reserves the right, in its sole and absolute discretion,\nto reject any and all proposals and to terminate discussions and negotiations with the other at any time.\n(b) It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. The agreements set forth in this letter agreement may be modified or waived only by a separate writing\nbetween the parties hereto.\n(c) Notwithstanding anything herein to the contrary, all of the obligations of the parties hereunder shall (if not sooner terminated) terminate\non the first anniversary of the date hereof; provided, however, that no such termination shall relieve a party from liability for any breach\nby such party of the terms hereof that exists on the date of such termination.\n(d) Buyer understands and agrees that neither the Company nor any of its Representatives has made or makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability to Buyer or any of\nits Representatives resulting from the use of the Evaluation Material or any errors in or omissions therefrom, except in each case to the\nextent expressly provided in any definitive agreement.\n(e) Each party hereby represents that it has the power and authority to execute and deliver this letter agreement, and that it has been duly\nauthorized and constitutes a valid and binding agreement of such\n3\n1\nparty, enforceable in accordance with its terms. This letter agreement shall be binding upon the respective successors in interest of the\nparties hereto and shall inure to the benefit of, and be enforceable by, the respective successors in interest of the parties hereto.\n(f) This agreement contains the entire agreement and understanding between the parties as to the subject matter hereof and supersedes any\nprior agreements, commitments, representations, writings and discussions, whether oral or written, relating to that subject matter. If any\nprovision of this letter agreement is held by a court of competent jurisdiction in a final, non-appealable judgment to be invalid, illegal or\nunenforceable, the remainder of the provisions of this letter shall remain in full force and effect and any invalid, illegal or unenforceable\nprovision shall be replaced with a valid, legal or enforceable provision, the effect of which comes as close as possible to that of the\ninvalid, illegal or unenforceable provision.\n(g) The validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Texas without regard to conflicts-of-law rules or principles.\n(h) This letter agreement may be executed in one or more counterparts. Each such counterpart shall be deemed to be an original instrument,\nbut all such counterparts taken together shall constitute one and the same agreement.\n(i) Buyer agrees that money damages may not be a sufficient remedy for any breach of this letter agreement by Buyer or any of its\nRepresentatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as well as\nreimbursement for legal and other expenses as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this letter agreement, but shall be in addition to all other remedies available at law or equity. In the event of\nlitigation concerning this letter agreement, if a court of competent jurisdiction determines in a final non-appealable order that a party has\nbreached this letter agreement, then such party shall be liable for and pay the other party’s reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeal therefrom or review thereof.\n(j) The Company agrees that, without prejudice to any claim it may have against Buyer or any of Buyer’s affiliates, no proceedings in\nrespect of any claim the Company may have against Buyer or its affiliates may be taken against Buyer’s or its affiliates’ directors,\nofficers or employees or Buyer’s or its affiliates’ controlling persons, partners, members or agents to the extent such controlling persons,\npartners, members or agents are individuals.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned.\nSincerely,\nPARALLEL PETROLEUM CORPORATION\nBy:\n/s/ LARRY C. OLDHAM\nLarry C. Oldham,\nPresident and Chief Executive Officer\nACCEPTED AND AGREED as of\nJune 30, 2009\nAPOLLO MANAGEMENT VII, L.P.\nBy: AIF VII Management, LLC\nits General Partner\nBy:\n/s/ WENDY K. MODLIN\nName:\nTitle:\nWendy K. Modlin\nVice President\n4
d6d3a5dbe3bd0ccb09d24e59162efca4.pdf	effective_date jurisdiction party term	EX-10 .5 6 exh_105.htm EXHIBIT 10.5\nExhibit 10.5\nNON-DISCLOSURE AGREEMENT\nThe undersigned (the “Director”), being a director and co-portfolio manager of Harbert Discovery Fund GP, LLC, the General Partner of Harbert\nDiscovery Fund LP (collectively with Harbert Fund Advisors, Inc. and Harbert Management Corporation (“Harbert”) and a member of the Board\nof Directors of Perceptron, Inc., a Michigan corporation (the “Company”), may be provided certain information and data in connection with\nserving as a director of the Company which the Company wishes to keep confidential, including, but not limited to, information (whether\nfurnished in writing or electronic format or orally) regarding the Company’s governance, board of directors, management, plans, strategies,\nbusiness, finances or operations, including information relating to financial statements, evaluations, plans, programs, customers, plants,\nequipment and other assets, products, processes, manufacturing, marketing, research and development, know-how and technology, intellectual\nproperty and trade secrets and information which the Company has obtained from third parties and with respect to which the Company is\nobligated to maintain confidentiality (collectively, “Confidential Information”). Except as provided in this Agreement, the Director will not (i)\ndisclose any Confidential Information in any manner whatsoever, (ii) use any Confidential Information other than in connection with serving as a\ndirector of the Company or (iii), in the case of Jack Bryant, notwithstanding clause (ii) of this paragraph, use any Confidential Information other\nthan in connection with decisions by Harbert to purchase or sell common stock of the Company in compliance with the terms of this Agreement,\nwithout securing the prior written consent of the Company.\nNothing contained in this Agreement shall prevent the Director from privately disclosing Confidential Information to (i) officers, directors,\naccountants and counsel for the Company, (ii) the Director’s legal counsel (“Director Representative”) who need to know such information for\nthe sole purpose of advising the Director on his actions as a director of the Company or (iii) officers, directors, accountants and legal counsel of\nHarbert (“Harbert Representatives”); provided however, that the Director shall not disclose Confidential Information to the extent such disclosure\nwould be reasonably likely to constitute waiver of the attorney-client privilege between the Company and its counsel or the Company’s attorney\nwork product privilege. Any Director Representative shall only be provided Confidential Information by the Director to the extent that they are\ninformed of the confidential nature of the Confidential Information and agree or are otherwise obligated to keep such information confidential\nand to restrict the use of such confidential information in accordance with the terms of this Agreement. Prior to the disclosure of Confidential\nInformation from the Director, the Director Representatives or Harbert Representatives who will receive Confidential Information shall agree in\nwriting to keep the Confidential Information confidential, to restrict the use of Confidential Information in accordance with the terms of this\nAgreement, to be bound by this Agreement on the same terms as the Director and to permit the Company to enforce such agreement, and a copy\nof such writing executed by the Director Representatives or Harbert Representatives who will receive Confidential Information shall be delivered\nto the Company.\nThe term “Confidential Information” shall not include information which (a) is at the time of disclosure or thereafter becomes generally available\nto the public other than as a result of a disclosure by the Director, a Director Representative, Harbert or Harbert Representatives in violation of\nthis Agreement; (b) was, prior to disclosure by the Company, already in the possession of the Director, a Director Representative, Harbert or\nHarbert Representatives, provided that the source of such information was, to such person’s knowledge after reasonable inquiry, not bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company; (c) becomes available to the\nDirector, a Director Representative, Harbert or Harbert Representatives on a non-confidential basis from a source (other than the Company, a\nCompany affiliate or a Company agent, representative, attorney, advisor, director, officer or employee (collectively, the “Company\nRepresentatives”)) that is, to such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with or other\ncontractual, legal or fiduciary obligation of confidentiality to the Company, and is not, to such person’s knowledge after reasonable inquiry, under\nan obligation to the Company not to transmit the information to such person; or (d) was independently developed by the Director, a Director\nRepresentative, Harbert or Harbert Representatives without reference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative, Harbert or Harbert Representatives who is informed of the matters that are\nthe subject of this Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from a\npublicly traded company and on the communication of such information to any other person who may purchase or sell such securities in reliance\nupon such information. The Director, any Director Representative, Harbert or Harbert Representatives to whom the Director transmits\nConfidential Information under this Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information\nin his capacity as a director of the Company for as long as the Director, any Director Representative, Harbert or Harbert Representatives are in\npossession of material non-public information about the Company or such other entity. The Director and the Company acknowledge that none of\nthe provisions hereto shall in any way limit the Director ’s or Harbert or Harbert Representative’s activities in the ordinary course of their\nbusinesses if such activities will not violate applicable securities laws or the obligations specifically agreed to under this Agreement.\nThe Director, any Director Representative, Harbert or any Harbert Representative to whom the Director transmits Confidential Information under\nthis Agreement acknowledges that none of the Company, any Company affiliate or any Company Representative makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. None of the Company, any Company affiliate\nor any Company Representative shall have any liability to the Director, any Director Representative, Harbert or Harbert Representative\nhereunder relating to or resulting from the use of the Confidential Information by the Director, any Director Representative, Harbert or Harbert\nRepresentative or any errors in or omissions from the Confidential Information.\nIn the event that the Director, any Director Representative, Harbert or Harbert Representative is requested in any proceeding or governmental\ninquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the extent not legally prohibited,\nof such request so that the Company may seek an appropriate protective order or waive compliance with the applicable provisions of this\nAgreement. If the Company seeks a protective order, the Director and Harbert agree, and shall cause Harbert, to provide such cooperation as the\nCompany shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or other relief to prevent\nthe disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the Confidential\nInformation. If in the absence of a protective order, the Director, any Director Representative, Harbert or Harbert Representatives, based upon the\nadvice of counsel, is legally required to disclose Confidential Information, or if the Company waives compliance with this Agreement, such\nperson or entity may disclose without liability under this Agreement such portion of the Confidential Information which counsel advises that the\nDirector, any Director Representative, Harbert or Harbert Representatives is legally required to disclose if the recipient of such Confidential\nInformation is informed of this Agreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall\nbe no legal requirement applicable to the Director, Harbert or Harbert Representatives to disclose any Confidential Information solely by virtue\nof the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other voluntary\ntransactions with respect to the Company’s securities.\nThe Director and Harbert agree that in the event of a breach of this Agreement, monetary damages alone may be inadequate, and the Company\nshall be entitled to seek injunctive or other equitable relief to prevent breaches of this Agreement in addition to any and all other remedies that\nmay be available to the Company.\nThis Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party in exercising any right\nhereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nThe provisions of this Agreement relating to confidentiality shall terminate one (1) year after the Director ceases to be a director of the Company,\nexcept that any Confidential Information constituting trade secrets of the Company (as defined in 18 U.S.C . § 1839(3)) shall be kept confidential\nin accordance with the obligations of this Agreement for such longer time as such information constitutes a trade secret of the Company. The\ninvalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.\nThis Agreement shall be governed by the laws of the state of Michigan, without giving effect to any conflicts of laws principles thereof, and shall\nbe binding on each party’s successors and assigns.\nAll Confidential Information shall remain the property of the Company and none of the Director, Harbert, or any Harbert Representative shall by\nvirtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of which rights (including all\nintellectual property rights) shall remain exclusively with the Company. At any time after the date on which the Director is no longer a director of\nthe Company, upon the request of the Company for any reason, the Director promptly return to the Company or destroy all hard copies of the\nConfidential Information and use reasonable best efforts to permanently erase or delete all electronic copies of the Confidential Information in\nthe possession or control of the Director, Harbert or Harbert Representatives. Notwithstanding anything to the contrary contained in this\nparagraph, the Director, Harbert Representatives and Harbert shall be permitted to retain such Confidential Information as is necessary to enable\nthem to comply with any applicable document retention requirements under applicable law or regulation or its internal compliance procedures,\nand to retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current\nautomatic archiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as\nthe case may be, and the provisions of this Agreement shall continue as to such information as long as it is retained by such person irrespective of\nthe termination provisions set forth above.\nThe Director agrees to be bound by the terms and conditions of the Standstill Agreement, dated August 9, 2016, by and between the Company,\nHarbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc. and Harbert Management Corporation, by executing\nand delivering to the Company a Joinder Agreement in the form attached to this Agreement as Exhibit A.\nAcceptance of the above terms shall be indicated by having this letter countersigned by the Director and Harbert.\nSincerely,\nPERCEPTRON, INC.\nBy: /s/ W. Richard Marz\nName: W. Richard Marz\nTitle: Chairman of the Board, President and Chief Executive Officer\nReceived and consented to this 9th day of August, 2016\n/s/ John F. Bryant\nJohn F. Bryant\nACKNOWLEDGED AND AGREED:\nHARBERT DISCOVERY FUND LP\nBy: Harbert Discovery Fund GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT DISCOVERY FUND GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT FUND ADVISORS, INC.\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nHARBERT MANAGEMENT CORPORATION\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nJOINDER AGREEMENT\nThis Joinder Agreement (the “Agreement”), dated as of August 9, 2016, is delivered pursuant to the Non-Disclosure Agreement (the\n“Confidentiality Agreement”), dated August 9, 2016, by and between Perceptron, Inc. (the “Company”), Harbert Discovery Fund LP, Harbert\nDiscovery Fund GP, LLC, Harbert Fund Advisors Inc., Harbert Management Corporation and the undersigned. Capitalized terms not otherwise\ndefined herein have the meaning set forth in the Standstill Agreement (the “Standstill Agreement”), dated August 9, 2016, by and between the\nCompany, Harbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc., and Harbert Management Corporation, a\ncopy of which is attached to this Agreement as Exhibit A.\nThe undersigned wishes to be elected as a Director. As a condition precedent to being elected as Director, the undersigned is required to\nbecome a party to the Standstill Agreement.\nBy executing and delivering this Agreement, the undersigned hereby becomes a party to the Standstill Agreement and shall be fully\nbound by, and subject to, all of the covenants, terms and conditions of the Standstill Agreement as though an original party to such agreement\nand shall be deemed a Holders Director for all purposes of such agreement.\nJohn F. Bryant	EX-10.5 6 exh_105.htm EXHIBIT 10.5\nExhibit 10.5\nNON-DISCLOSURE AGREEMENT\nThe undersigned (the “Director”), being a director and co-portfolio manager of Harbert Discovery Fund GP, LLC, the General Partner of Harbert\nDiscovery Fund LP (collectively with Harbert Fund Advisors, Inc. and Harbert Management Corporation (“Harbert”) and a member of the Board\nof Directors of Perceptron, Inc., a Michigan corporation (the “Company”), may be provided certain information and data in connection with\nserving as a director of the Company which the Company wishes to keep confidential, including, but not limited to, information (whether\nfurnished in writing or electronic format or orally) regarding the Company’s governance, board of directors, management, plans, strategies,\nbusiness, finances or operations, including information relating to financial statements, evaluations, plans, programs, customers, plants,\nequipment and other assets, products, processes, manufacturing, marketing, research and development, know-how and technology, intellectual\nproperty and trade secrets and information which the Company has obtained from third parties and with respect to which the Company is\nobligated to maintain confidentiality (collectively, “Confidential Information”). Except as provided in this Agreement, the Director will not (i)\ndisclose any Confidential Information in any manner whatsoever, (ii) use any Confidential Information other than in connection with serving as a\ndirector of the Company or (iii), in the case of Jack Bryant, notwithstanding clause (ii) of this paragraph, use any Confidential Information other\nthan in connection with decisions by Harbert to purchase or sell common stock of the Company in compliance with the terms of this Agreement,\nwithout securing the prior written consent of the Company.\nNothing contained in this Agreement shall prevent the Director from privately disclosing Confidential Information to (i) officers, directors,\naccountants and counsel for the Company, (ii) the Director’s legal counsel (“Director Representative”) who need to know such information for\nthe sole purpose of advising the Director on his actions as a director of the Company or (iii) officers, directors, accountants and legal counsel of\nHarbert (“Harbert Representatives”); provided however, that the Director shall not disclose Confidential Information to the extent such disclosure\nwould be reasonably likely to constitute waiver of the attorney-client privilege between the Company and its counsel or the Company’s attorney\nwork product privilege. Any Director Representative shall only be provided Confidential Information by the Director to the extent that they are\ninformed of the confidential nature of the Confidential Information and agree or are otherwise obligated to keep such information confidential\nand to restrict the use of such confidential information in accordance with the terms of this Agreement. Prior to the disclosure of Confidential\nInformation from the Director, the Director Representatives or Harbert Representatives who will receive Confidential Information shall agree in\nwriting to keep the Confidential Information confidential, to restrict the use of Confidential Information in accordance with the terms of this\nAgreement, to be bound by this Agreement on the same terms as the Director and to permit the Company to enforce such agreement, and a copy\nof such writing executed by the Director Representatives or Harbert Representatives who will receive Confidential Information shall be delivered\nto the Company.\nThe term “Confidential Information” shall not include information which (a) is at the time of disclosure or thereafter becomes generally available\nto the public other than as a result of a disclosure by the Director, a Director Representative, Harbert or Harbert Representatives in violation of\nthis Agreement; (b) was, prior to disclosure by the Company, already in the possession of the Director, a Director Representative, Harbert or\nHarbert Representatives, provided that the source of such information was, to such person’s knowledge after reasonable inquiry, not bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company; (c) becomes available to the\nDirector, a Director Representative, Harbert or Harbert Representatives on a non-confidential basis from a source (other than the Company, a\nCompany affiliate or a Company agent, representative, attorney, advisor, director, officer or employee (collectively, the “Company\nRepresentatives™)) that is, to such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with or other\ncontractual, legal or fiduciary obligation of confidentiality to the Company, and is not, to such person’s knowledge after reasonable inquiry, under\nan obligation to the Company not to transmit the information to such person; or (d) was independently developed by the Director, a Director\nRepresentative, Harbert or Harbert Representatives without reference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative, Harbert or Harbert Representatives who is informed of the matters that are\nthe subject of this Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from a\npublicly traded company and on the communication of such information to any other person who may purchase or sell such securities in reliance\nupon such information. The Director, any Director Representative, Harbert or Harbert Representatives to whom the Director transmits\nConfidential Information under this Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information\nin his capacity as a director of the Company for as long as the Director, any Director Representative, Harbert or Harbert Representatives are in\npossession of material non-public information about the Company or such other entity. The Director and the Company acknowledge that none of\nthe provisions hereto shall in any way limit the Director’s or Harbert or Harbert Representative’s activities in the ordinary course of their\nbusinesses if such activities will not violate applicable securities laws or the obligations specifically agreed to under this Agreement.\nThe Director, any Director Representative, Harbert or any Harbert Representative to whom the Director transmits Confidential Information under\nthis Agreement acknowledges that none of the Company, any Company affiliate or any Company Representative makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. None of the Company, any Company affiliate\nor any Company Representative shall have any liability to the Director, any Director Representative, Harbert or Harbert Representative\nhereunder relating to or resulting from the use of the Confidential Information by the Director, any Director Representative, Harbert or Harbert\nRepresentative or any errors in or omissions from the Confidential Information.\nIn the event that the Director, any Director Representative, Harbert or Harbert Representative is requested in any proceeding or governmental\ninquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the extent not legally prohibited,\nof such request so that the Company may seek an appropriate protective order or waive compliance with the applicable provisions of this\nAgreement. If the Company seeks a protective order, the Director and Harbert agree, and shall cause Harbert, to provide such cooperation as the\nCompany shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or other relief to prevent\nthe disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the Confidential\nInformation. If in the absence of a protective order, the Director, any Director Representative, Harbert or Harbert Representatives, based upon the\nadvice of counsel, is legally required to disclose Confidential Information, or if the Company waives compliance with this Agreement, such\nperson or entity may disclose without liability under this Agreement such portion of the Confidential Information which counsel advises that the\nDirector, any Director Representative, Harbert or Harbert Representatives is legally required to disclose if the recipient of such Confidential\nInformation is informed of this Agreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall\nbe no legal requirement applicable to the Director, Harbert or Harbert Representatives to disclose any Confidential Information solely by virtue\nof the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other voluntary\ntransactions with respect to the Company’s securities.\nThe Director and Harbert agree that in the event of a breach of this Agreement, monetary damages alone may be inadequate, and the Company\nshall be entitled to seek injunctive or other equitable relief to prevent breaches of this Agreement in addition to any and all other remedies that\nmay be available to the Company.\nThis Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party in exercising any right\nhereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nThe provisions of this Agreement relating to confidentiality shall terminate one (1) year after the Director ceases to be a director of the Company,\nexcept that any Confidential Information constituting trade secrets of the Company (as defined in 18 U.S.C. § 1839(3)) shall be kept confidential\nin accordance with the obligations of this Agreement for such longer time as such information constitutes a trade secret of the Company. The\ninvalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.\nThis Agreement shall be governed by the laws of the state of Michigan, without giving effect to any conflicts of laws principles thereof, and shall\nbe binding on each party’s successors and assigns.\nAll Confidential Information shall remain the property of the Company and none of the Director, Harbert, or any Harbert Representative shall by\nvirtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of which rights (including all\nintellectual property rights) shall remain exclusively with the Company. At any time after the date on which the Director is no longer a director of\nthe Company, upon the request of the Company for any reason, the Director promptly return to the Company or destroy all hard copies of the\nConfidential Information and use reasonable best efforts to permanently erase or delete all electronic copies of the Confidential Information in\nthe possession or control of the Director, Harbert or Harbert Representatives. Notwithstanding anything to the contrary contained in this\nparagraph, the Director, Harbert Representatives and Harbert shall be permitted to retain such Confidential Information as is necessary to enable\nthem to comply with any applicable document retention requirements under applicable law or regulation or its internal compliance procedures,\nand to retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current\nautomatic archiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as\nthe case may be, and the provisions of this Agreement shall continue as to such information as long as it is retained by such person irrespective of\nthe termination provisions set forth above.\nThe Director agrees to be bound by the terms and conditions of the Standstill Agreement, dated August 9, 2016, by and between the Company,\nHarbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc. and Harbert Management Corporation, by executing\nand delivering to the Company a Joinder Agreement in the form attached to this Agreement as Exhibit A.\nAcceptance of the above terms shall be indicated by having this letter countersigned by the Director and Harbert.\nSincerely,\nPERCEPTRON, INC.\nBy: /s/ W. Richard Marz\nName: W. Richard Marz\nTitle: Chairman of the Board, President and Chief Executive Officer\nReceived and consented to this 9th day of August, 2016\n/s/ John F. Bryant\nJohn F. Bryant\nACKNOWLEDGED AND AGREED:\nHARBERT DISCOVERY FUND LP\nBy: Harbert Discovery Fund GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT DISCOVERY FUND GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT FUND ADVISORS, INC.\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nHARBERT MANAGEMENT CORPORATION\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nJOINDER AGREEMENT\nThis Joinder Agreement (the “Agreement”), dated as of August 9, 2016, is delivered pursuant to the Non-Disclosure Agreement (the\n“Confidentiality Agreement”), dated August 9, 2016, by and between Perceptron, Inc. (the “Company”), Harbert Discovery Fund LP, Harbert\nDiscovery Fund GP, LLC, Harbert Fund Advisors Inc., Harbert Management Corporation and the undersigned. Capitalized terms not otherwise\ndefined herein have the meaning set forth in the Standstill Agreement (the “Standstill Agreement”), dated August 9, 2016, by and between the\nCompany, Harbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc., and Harbert Management Corporation, a\ncopy of which is attached to this Agreement as Exhibit A.\nThe undersigned wishes to be elected as a Director. As a condition precedent to being elected as Director, the undersigned is required to\nbecome a party to the Standstill Agreement.\nBy executing and delivering this Agreement, the undersigned hereby becomes a party to the Standstill Agreement and shall be fully\nbound by, and subject to, all of the covenants, terms and conditions of the Standstill Agreement as though an original party to such agreement\nand shall be deemed a Holders Director for all purposes of such agreement.\nJohn F. Bryant	EX-10.5 exh_105.htm EXHIBIT 10.5\nExhibit 10.5\nNON-DISCLOSURE AGREEMENT\nThe undersigned (the "Director"), being a director and co-portfolio manager of Harbert Discovery Fund GP, LLC, the General Partner of Harbert\nDiscovery Fund LP (collectively with Harbert Fund Advisors, Inc. and Harbert Management Corporation ("Harbert") and a member of the Board\nof Directors of Perceptron, Inc., a Michigan corporation (the "Company"), may be provided certain information and data in connection with\nserving as a director of the Company which the Company wishes to keep confidential, including, but not limited to, information (whether\nfurnished in writing or electronic format or orally) regarding the Company's governance, board of directors, management, plans, strategies,\nbusiness, finances or operations, including information relating to financial statements, evaluations, plans, programs, customers, plants,\nequipment and other assets, products, processes, manufacturing, marketing, research and development, know-how and technology, intellectual\nproperty and trade secrets and information which the Company has obtained from third parties and with respect to which the Company is\nobligated to maintain confidentiality (collectively, "Confidential Information"). Except as provided in this Agreement, the Director will not (i)\ndisclose any Confidential Information in any manner whatsoever, (ii) use any Confidential Information other than in connection with serving as a\ndirector of the Company or (iii), in the case of Jack Bryant, notwithstanding clause (ii) of this paragraph, use any Confidential Information other\nthan in connection with decisions by Harbert to purchase or sell common stock of the Company in compliance with the terms of this Agreement,\nwithout securing the prior written consent of the Company.\nNothing contained in this Agreement shall prevent the Director from privately disclosing Confidential Information to (i) officers, directors,\naccountants and counsel for the Company, (ii) the Director's legal counsel ("Director Representative") who need to know such information for\nthe\nsole\npurpose\nof\nadvising\nthe\nDirector\non\nhis\nactions\nas\na\ndirector\nof\nthe\nCompany\nor\n(iii)\nofficers,\ndirectors,\naccountants\nand\nlegal\ncounsel\nof\nHarbert ("Harbert Representatives"); provided however, that the Director shall not disclose Confidential Information to the extent such disclosure\nwould be reasonably likely to constitute waiver of the attorney-client privilege between the Company and its counsel or the Company's attorney\nwork product privilege. Any Director Representative shall only be provided Confidential Information by the Director to the extent that\nthey\nare\ninformed of the confidential nature of the Confidential Information and agree or are otherwise obligated to keep such information confidential\nand to restrict the use of such confidential information in accordance with the terms of this Agreement. Prior to the disclosure of Confidential\nInformation\nfrom\nthe\nDirector,\nthe\nDirector\nRepresentatives\nor\nHarbert\nRepresentatives\nwho\nwill\nreceive\nConfidential\nInformation\nshall\nagree\nin\nwriting to keep the Confidential Information confidential, to restrict the use of Confidential Information in accordance with the terms of this\nAgreement, to be bound by this Agreement on the same terms as the Director and to permit the Company to enforce such agreement, and a copy\nof such writing executed by the Director Representatives or Harbert Representatives who will receive Confidential Information shall be delivered\nto the Company.\nThe term "Confidential Information" shall not include information which (a) is at the time of disclosure or thereafter becomes generally available\nto the public other than as a result of a disclosure by the Director, a Director Representative, Harbert or Harbert Representatives in violation of\nthis Agreement; (b) was, prior to disclosure by the Company, already in the possession of the Director, a Director Representative, Harbert or\nHarbert Representatives, provided that the source of such information was, to such person's knowledge after reasonable inquiry, not bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company; (c) becomes available to the\nDirector, a Director Representative, Harbert or Harbert Representatives on a non-confidential basis from a source (other than the Company, a\nCompany affiliate or a Company agent, representative, attorney, advisor, director, officer or employee (collectively, the "Company\nRepresentatives")) that is, to such person's knowledge after reasonable inquiry, not bound by a confidentiality agreement with or other\ncontractual, legal or fiduciary obligation of confidentiality to the Company, and is not, to such person's knowledge after reasonable inquiry, under\nan obligation to the Company not to transmit the information to such person; or (d) was independently developed by the Director, a Director\nRepresentative, Harbert or Harbert Representatives without reference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative, Harbert or Harbert Representatives who is informed of the matters that are\nthe\nsubject of this Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from a\npublicly traded company and on the communication of such information to any other person who may purchase or sell such securities in reliance\nupon such information. The Director, any Director Representative, Harbert or Harbert Representatives to whom the Director transmits\nConfidential Information under this Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information\nin his capacity as a director of the Company for as long as the Director, any Director Representative, Harbert or Harbert Representatives are in\npossession of material non-public information about the Company or such other entity. The Director and the Company acknowledge\nthat\nnone\nof\nthe provisions hereto shall in any way limit the Director's or Harbert or Harbert Representative's activities in the ordinary course of their\nbusinesses if such activities will not violate applicable securities laws or the obligations specifically agreed to under this Agreement.\nThe Director, any Director Representative, Harbert or any Harbert Representative to whom the Director transmits Confidential Information under\nthis Agreement acknowledges that none of the Company, any Company affiliate or any Company Representative makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. None of the Company, any Company affiliate\nor any Company Representative shall have any liability to the Director, any Director Representative, Harbert or Harbert Representative\nhereunder relating to or resulting from the use of the Confidential Information by the Director, any Director Representative, Harbert or Harbert\nRepresentative or any errors in or omissions from the Confidential Information.\nIn\nthe event that the Director, any Director Representative, Harbert or Harbert Representative is requested in any proceeding or governmental\ninquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the extent not legally prohibited,\nof such request so that the Company may seek an appropriate protective order or waive compliance with the applicable provisions of this\nAgreement. If the Company seeks a protective order, the Director and Harbert agree, and shall cause Harbert, to provide such cooperation as the\nCompany shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or other relief to prevent\nthe disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the Confidential\nInformation. If in the absence of a protective order, the Director, any Director Representative, Harbert or Harbert Representatives, based upon the\nadvice of counsel, is legally required to disclose Confidential Information, or if the Company waives compliance with this Agreement, such\nperson or entity may disclose without liability under this Agreement such portion of the Confidential Information which counsel advises that the\nDirector, any Director Representative, Harbert or Harbert Representatives is legally required to disclose if the recipient of such Confidential\nInformation is informed of this Agreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall\nbe no legal requirement applicable to the Director, Harbert or Harbert Representatives to disclose any Confidential Information solely by virtue\nof the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other voluntary\ntransactions with respect to the Company's securities.\nThe Director and Harbert agree that in the event of a breach of this Agreement, monetary damages alone may be inadequate, and the Company\nshall be entitled to seek injunctive or other equitable relief to prevent breaches of this Agreement in addition to any and all other remedies that\nmay be available to the Company.\nThis Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party in exercising any right\nhereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nThe provisions of this Agreement relating to confidentiality shall terminate one (1) year after the Director ceases to be a director of the Company,\nexcept that any Confidential Information constituting trade secrets of the Company (as defined in 18 U.S.C. 8 1839(3)) shall be kept confidential\nin accordance with the obligations of this Agreement for such longer time as such information constitutes a trade secret of the Company. The\ninvalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.\nThis Agreement shall be governed by the laws of the state of Michigan, without giving effect to any conflicts of laws principles thereof, and shall\nbe binding on each party's successors and assigns.\nAll Confidential Information shall remain the property of the Company and none of the Director, Harbert, or any Harbert Representative shall by\nvirtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of which rights (including\nall\nintellectual\nproperty\nrights)\nshall\nremain\nexclusively\nwith\nthe\nCompany.\nAt\nany\ntime\nafter\nthe\ndate\non\nwhich\nthe\nDirector\nis\nno\nlonger\na\ndirector\nof\nthe Company, upon the request of the Company for any reason, the Director promptly return to the Company or destroy all hard copies of the\nConfidential Information and use reasonable best efforts to permanently erase or delete all electronic copies of the Confidential Information in\nthe possession or control of the Director, Harbert or Harbert Representatives. Notwithstanding anything to the contrary contained in this\nparagraph, the Director, Harbert Representatives and Harbert shall be permitted to retain such Confidentia Information as is necessary to enable\nthem to comply with any applicable document retention requirements under applicable law or regulation or its internal compliance procedures,\nand to retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current\nautomatic archiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as\nthe case may be, and the provisions of this Agreement shall continue as to such information as long as it is retained by such person irrespective of\nthe termination provisions set forth above.\nThe Director agrees to be bound by the terms and conditions of the Standstill Agreement, dated August 9, 2016, by and between the Company,\nHarbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc. and Harbert Management Corporation, by executing\nand delivering to the Company a Joinder Agreement in the form attached to this Agreement as Exhibit A.\nAcceptance of the above terms shall be indicated by having this letter countersigned by the Director and Harbert.\nSincerely,\nPERCEPTRON, INC.\nBy: /s/ W. Richard Marz\nName: W. Richard Marz\nTitle: Chairman of the Board, President and Chief Executive Officer\nReceived and consented to this 9th day of August, 2016\n/s/ John F. Bryant\nJohn F. Bryant\nACKNOWLEDGED AND AGREED:\nHARBERT DISCOVERY FUND LP\nBy: Harbert Discovery Fund GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT DISCOVERY FUND GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT FUND ADVISORS, INC.\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nHARBERT MANAGEMENT CORPORATION\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nJOINDER AGREEMENT\nThis Joinder Agreement (the "Agreement"), dated as of August 9, 2016, is delivered pursuant to the Non-Disclosure Agreement (the\n"Confidentiality Agreement"), dated August 9, 2016, by and between Perceptron, Inc. (the "Company"), Harbert Discovery Fund LP, Harbert\nDiscovery Fund GP, LLC, Harbert Fund Advisors Inc., Harbert Management Corporation and the undersigned. Capitalized terms not otherwise\ndefined herein have the meaning set forth in the Standstill Agreement (the "Standstill Agreement"), dated August 9, 2016, by and between the\nCompany, Harbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc., and Harbert Management Corporation, a\ncopy of which is attached to this Agreement as Exhibit A.\nThe undersigned wishes to be elected as a Director. As a condition precedent to being elected as Director, the undersigned is required to\nbecome a party to the Standstill Agreement.\nBy executing and delivering this Agreement, the undersigned hereby becomes a party to the Standstill Agreement and shall be fully\nbound by, and subject to, all of the covenants, terms and conditions of the Standstill Agreement as though an original party to such agreement\nand shall be deemed a Holders Director for all purposes of such agreement.\nJohn F. Bryant	EX-10 .5 6 exh_105.htm EXHIBIT 10.5\nExhibit 10.5\nNON-DISCLOSURE AGREEMENT\nThe undersigned (the “Director”), being a director and co-portfolio manager of Harbert Discovery Fund GP, LLC, the General Partner of Harbert\nDiscovery Fund LP (collectively with Harbert Fund Advisors, Inc. and Harbert Management Corporation (“Harbert”) and a member of the Board\nof Directors of Perceptron, Inc., a Michigan corporation (the “Company”), may be provided certain information and data in connection with\nserving as a director of the Company which the Company wishes to keep confidential, including, but not limited to, information (whether\nfurnished in writing or electronic format or orally) regarding the Company’s governance, board of directors, management, plans, strategies,\nbusiness, finances or operations, including information relating to financial statements, evaluations, plans, programs, customers, plants,\nequipment and other assets, products, processes, manufacturing, marketing, research and development, know-how and technology, intellectual\nproperty and trade secrets and information which the Company has obtained from third parties and with respect to which the Company is\nobligated to maintain confidentiality (collectively, “Confidential Information”). Except as provided in this Agreement, the Director will not (i)\ndisclose any Confidential Information in any manner whatsoever, (ii) use any Confidential Information other than in connection with serving as a\ndirector of the Company or (iii), in the case of Jack Bryant, notwithstanding clause (ii) of this paragraph, use any Confidential Information other\nthan in connection with decisions by Harbert to purchase or sell common stock of the Company in compliance with the terms of this Agreement,\nwithout securing the prior written consent of the Company.\nNothing contained in this Agreement shall prevent the Director from privately disclosing Confidential Information to (i) officers, directors,\naccountants and counsel for the Company, (ii) the Director’s legal counsel (“Director Representative”) who need to know such information for\nthe sole purpose of advising the Director on his actions as a director of the Company or (iii) officers, directors, accountants and legal counsel of\nHarbert (“Harbert Representatives”); provided however, that the Director shall not disclose Confidential Information to the extent such disclosure\nwould be reasonably likely to constitute waiver of the attorney-client privilege between the Company and its counsel or the Company’s attorney\nwork product privilege. Any Director Representative shall only be provided Confidential Information by the Director to the extent that they are\ninformed of the confidential nature of the Confidential Information and agree or are otherwise obligated to keep such information confidential\nand to restrict the use of such confidential information in accordance with the terms of this Agreement. Prior to the disclosure of Confidential\nInformation from the Director, the Director Representatives or Harbert Representatives who will receive Confidential Information shall agree in\nwriting to keep the Confidential Information confidential, to restrict the use of Confidential Information in accordance with the terms of this\nAgreement, to be bound by this Agreement on the same terms as the Director and to permit the Company to enforce such agreement, and a copy\nof such writing executed by the Director Representatives or Harbert Representatives who will receive Confidential Information shall be delivered\nto the Company.\nThe term “Confidential Information” shall not include information which (a) is at the time of disclosure or thereafter becomes generally available\nto the public other than as a result of a disclosure by the Director, a Director Representative, Harbert or Harbert Representatives in violation of\nthis Agreement; (b) was, prior to disclosure by the Company, already in the possession of the Director, a Director Representative, Harbert or\nHarbert Representatives, provided that the source of such information was, to such person’s knowledge after reasonable inquiry, not bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company; (c) becomes available to the\nDirector, a Director Representative, Harbert or Harbert Representatives on a non-confidential basis from a source (other than the Company, a\nCompany affiliate or a Company agent, representative, attorney, advisor, director, officer or employee (collectively, the “Company\nRepresentatives”)) that is, to such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with or other\ncontractual, legal or fiduciary obligation of confidentiality to the Company, and is not, to such person’s knowledge after reasonable inquiry, under\nan obligation to the Company not to transmit the information to such person; or (d) was independently developed by the Director, a Director\nRepresentative, Harbert or Harbert Representatives without reference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative, Harbert or Harbert Representatives who is informed of the matters that are\nthe subject of this Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from a\npublicly traded company and on the communication of such information to any other person who may purchase or sell such securities in reliance\nupon such information. The Director, any Director Representative, Harbert or Harbert Representatives to whom the Director transmits\nConfidential Information under this Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information\nin his capacity as a director of the Company for as long as the Director, any Director Representative, Harbert or Harbert Representatives are in\npossession of material non-public information about the Company or such other entity. The Director and the Company acknowledge that none of\nthe provisions hereto shall in any way limit the Director ’s or Harbert or Harbert Representative’s activities in the ordinary course of their\nbusinesses if such activities will not violate applicable securities laws or the obligations specifically agreed to under this Agreement.\nThe Director, any Director Representative, Harbert or any Harbert Representative to whom the Director transmits Confidential Information under\nthis Agreement acknowledges that none of the Company, any Company affiliate or any Company Representative makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. None of the Company, any Company affiliate\nor any Company Representative shall have any liability to the Director, any Director Representative, Harbert or Harbert Representative\nhereunder relating to or resulting from the use of the Confidential Information by the Director, any Director Representative, Harbert or Harbert\nRepresentative or any errors in or omissions from the Confidential Information.\nIn the event that the Director, any Director Representative, Harbert or Harbert Representative is requested in any proceeding or governmental\ninquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the extent not legally prohibited,\nof such request so that the Company may seek an appropriate protective order or waive compliance with the applicable provisions of this\nAgreement. If the Company seeks a protective order, the Director and Harbert agree, and shall cause Harbert, to provide such cooperation as the\nCompany shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or other relief to prevent\nthe disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the Confidential\nInformation. If in the absence of a protective order, the Director, any Director Representative, Harbert or Harbert Representatives, based upon the\nadvice of counsel, is legally required to disclose Confidential Information, or if the Company waives compliance with this Agreement, such\nperson or entity may disclose without liability under this Agreement such portion of the Confidential Information which counsel advises that the\nDirector, any Director Representative, Harbert or Harbert Representatives is legally required to disclose if the recipient of such Confidential\nInformation is informed of this Agreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall\nbe no legal requirement applicable to the Director, Harbert or Harbert Representatives to disclose any Confidential Information solely by virtue\nof the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other voluntary\ntransactions with respect to the Company’s securities.\nThe Director and Harbert agree that in the event of a breach of this Agreement, monetary damages alone may be inadequate, and the Company\nshall be entitled to seek injunctive or other equitable relief to prevent breaches of this Agreement in addition to any and all other remedies that\nmay be available to the Company.\nThis Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party in exercising any right\nhereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nThe provisions of this Agreement relating to confidentiality shall terminate one (1) year after the Director ceases to be a director of the Company,\nexcept that any Confidential Information constituting trade secrets of the Company (as defined in 18 U.S.C . § 1839(3)) shall be kept confidential\nin accordance with the obligations of this Agreement for such longer time as such information constitutes a trade secret of the Company. The\ninvalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.\nThis Agreement shall be governed by the laws of the state of Michigan, without giving effect to any conflicts of laws principles thereof, and shall\nbe binding on each party’s successors and assigns.\nAll Confidential Information shall remain the property of the Company and none of the Director, Harbert, or any Harbert Representative shall by\nvirtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of which rights (including all\nintellectual property rights) shall remain exclusively with the Company. At any time after the date on which the Director is no longer a director of\nthe Company, upon the request of the Company for any reason, the Director promptly return to the Company or destroy all hard copies of the\nConfidential Information and use reasonable best efforts to permanently erase or delete all electronic copies of the Confidential Information in\nthe possession or control of the Director, Harbert or Harbert Representatives. Notwithstanding anything to the contrary contained in this\nparagraph, the Director, Harbert Representatives and Harbert shall be permitted to retain such Confidential Information as is necessary to enable\nthem to comply with any applicable document retention requirements under applicable law or regulation or its internal compliance procedures,\nand to retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current\nautomatic archiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as\nthe case may be, and the provisions of this Agreement shall continue as to such information as long as it is retained by such person irrespective of\nthe termination provisions set forth above.\nThe Director agrees to be bound by the terms and conditions of the Standstill Agreement, dated August 9, 2016, by and between the Company,\nHarbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc. and Harbert Management Corporation, by executing\nand delivering to the Company a Joinder Agreement in the form attached to this Agreement as Exhibit A.\nAcceptance of the above terms shall be indicated by having this letter countersigned by the Director and Harbert.\nSincerely,\nPERCEPTRON, INC.\nBy: /s/ W. Richard Marz\nName: W. Richard Marz\nTitle: Chairman of the Board, President and Chief Executive Officer\nReceived and consented to this 9th day of August, 2016\n/s/ John F. Bryant\nJohn F. Bryant\nACKNOWLEDGED AND AGREED:\nHARBERT DISCOVERY FUND LP\nBy: Harbert Discovery Fund GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT DISCOVERY FUND GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT FUND ADVISORS, INC.\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nHARBERT MANAGEMENT CORPORATION\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nJOINDER AGREEMENT\nThis Joinder Agreement (the “Agreement”), dated as of August 9, 2016, is delivered pursuant to the Non-Disclosure Agreement (the\n“Confidentiality Agreement”), dated August 9, 2016, by and between Perceptron, Inc. (the “Company”), Harbert Discovery Fund LP, Harbert\nDiscovery Fund GP, LLC, Harbert Fund Advisors Inc., Harbert Management Corporation and the undersigned. Capitalized terms not otherwise\ndefined herein have the meaning set forth in the Standstill Agreement (the “Standstill Agreement”), dated August 9, 2016, by and between the\nCompany, Harbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc., and Harbert Management Corporation, a\ncopy of which is attached to this Agreement as Exhibit A.\nThe undersigned wishes to be elected as a Director. As a condition precedent to being elected as Director, the undersigned is required to\nbecome a party to the Standstill Agreement.\nBy executing and delivering this Agreement, the undersigned hereby becomes a party to the Standstill Agreement and shall be fully\nbound by, and subject to, all of the covenants, terms and conditions of the Standstill Agreement as though an original party to such agreement\nand shall be deemed a Holders Director for all purposes of such agreement.\nJohn F. Bryant
d714d261edc4d361e7d2ebabccaada50.pdf	effective_date jurisdiction party term	EX-10 .2 3 exhibit102-confidentiality.htm EXHIBIT 10.2\nExhibit A\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, HealthEquity, Inc., a Delaware\ncorporation (the “Company”), and in consideration of my employment with the Company and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms set forth in this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (this “Non-Interference Agreement”):\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access\nto information about the Company and its direct and indirect subsidiaries and affiliates (collectively, the “Company\nGroup”) and that my employment with the Company shall bring me into close contact with confidential and proprietary\ninformation of any member of the Company Group. In recognition of the foregoing, I agree, at all times during the term\nof my employment with the Company and thereafter, to hold in confidence, and not to use, except for the benefit of any\nmember of the Company Group, or to disclose to any person, firm, corporation, or other entity without written\nauthorization of the Company, any Confidential Information that I obtain or create. I further agree not to make copies of\nsuch Confidential Information except as authorized by the Company. I understand that “Confidential Information”\nmeans information that any member of the Company Group has developed, acquired, created, compiled, discovered, or\nowned or will develop, acquire, create, compile, discover, or own, that has value in or to the business of any member of\nthe Company Group that is not generally known and that the Company wishes to maintain as confidential. I understand\nthat Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual\nor anticipated business and/or products, research, or development of the Company, or to the Company’s technical data,\ntrade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding the\nCompany’s products or services and markets, customer lists, and customers (including, but not limited to, customers of\nthe Company on whom I called or with whom I may become acquainted during the term of my employment), software,\ndevelopments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly\nin writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property.\nNotwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have\nbecome publicly and widely known through no unauthorized disclosure by me or others who were under confidentiality\nobligations as to the item or items involved, or (ii) any information that I am required to disclose to, or by, any\ngovernmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice\nthereof so that any member of the Company Group may seek an appropriate protective order and/or waive in writing\ncompliance with the confidentiality provisions of this Non-Interference Agreement.\nA-1\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference\nAgreement as an employee of the Company has not breached and will not breach any agreement to keep in confidence\nproprietary information, knowledge, or data acquired by me in confidence or trust prior or subsequent to the\ncommencement of my employment with the Company, and I will not disclose to any member of the Company Group, or\ninduce any member of the Company Group to use, any developments, or confidential or proprietary information or\nmaterial I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\n(c) Third Party Information. I understand that the Company Group has received and in the future may receive\nfrom third parties confidential or proprietary information (“Third Party Information”) subject to a duty on the Company\nGroup’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. In\nrecognition of the foregoing, I agree, at all times during the period of my employment with the Company (the\n“Employment Period”) and thereafter, to hold in confidence and will not disclose to anyone (other than Company Group\npersonnel who need to know such information in connection with their work for the Company Group), and not to use,\nexcept for the benefit of the Company Group, Third Party Information without the express prior written consent of an\nofficer of the Company and otherwise treat Third Party Information as Confidential Information.\n(d) Whistleblower; Defend Trade Secrets Act Disclosure.\n(i) In addition, I understand that nothing in this Agreement shall be construed to prohibit me from\nreporting possible violations of law or regulation to any governmental agency or regulatory body or making other\ndisclosures that are protected under any law or regulation, or from filing a charge with or participating in any\ninvestigation or proceeding conducted by any governmental agency or regulatory body.\n(ii) I understand that the Defend Trade Secrets Act provides that I may not be held criminally or civilly\nliable under any Federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a\nFederal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of\nreporting or investigating a suspected violation of law; or that is made in a complaint or other document filed in a lawsuit\nor other proceeding, if such filing is made under seal. In the event that I file a lawsuit for retaliation by any member of\nthe Company Group for reporting a suspected violation of law, I may disclose the trade secret to my attorney and use the\ntrade secret information in the court proceeding, if I file any document containing the trade secret under seal and do not\ndisclose the trade secret, except pursuant to court order.\nSection 2. Developments.\n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with\nparticularity all developments, original works of authorship, improvements, and trade secrets that I can demonstrate\nwere created or owned by me prior to the\nA-2\ncommencement of my employment (collectively referred to as “Prior Developments”), which belong solely to me or\nbelong to me jointly with another, that relate in any way to any of the actual or proposed businesses, products, or\nresearch and development of any member of the Company Group, and that are not assigned to the Company hereunder,\nor if no such list is attached, I represent that there are no such Prior Developments. If, during any period during which I\nperform or performed services for any member of the Company Group both before or after the date hereof (the\n“Assignment Period”), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any\nother capacity, I incorporate (or have incorporated) into any member of the Company Group’s product or process a Prior\nDevelopment owned by me or in which I have an interest, I hereby grant each member of the Company Group, and each\nmember of the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide\nlicense (with the right to sublicense) to make, have made, copy, modify, make derivative works of, use, sell, and\notherwise distribute such Prior Development as part of or in connection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full\nwritten disclosure to the Company, and will hold in trust for the sole right and benefit of the Company all developments,\noriginal works of authorship, inventions, concepts, know-how, improvements, trade secrets, and similar proprietary\nrights, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive\nor develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice, or have caused\nor may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during\nregular working hours, provided they either (i) relate at the time of conception, development or reduction to practice to\nthe business of any member of the Company Group, or the actual or anticipated research or development of any\nmember of the Company Group; (ii) result from or relate to any work performed for any member of the Company\nGroup; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the Company\nGroup, or any Confidential Information, or in consultation with personnel of any member of the Company Group\n(collectively referred to as “Developments”). I further acknowledge that all Developments made by me (solely or jointly\nwith others) within the scope of and during the Assignment Period are “works made for hire” (to the greatest extent\npermitted by applicable law) for which I am, in part, compensated by my salary, unless regulated otherwise by law, but\nthat, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the Company, or\nits designee, all my right, title, and interest throughout the world in and to any such Development. If any Developments\ncannot be assigned, I hereby grant to each member of the Company Group an exclusive, assignable, irrevocable,\nperpetual, worldwide, sublicenseable (through one or multiple tiers), royalty-free, unlimited license to use, make,\nmodify, sell, offer for sale, reproduce, distribute, create derivative works of, publicly perform, publicly display and\ndigitally perform and display such work in any media now known or hereafter known. Outside the scope of my service,\nwhether during or after my employment with any member of the Company Group, I agree not to (i) modify, adapt, alter,\ntranslate, or create derivative works from any such work of authorship or (ii) merge any such work of authorship with\nother Developments. To the extent rights related to paternity, integrity, disclosure and withdrawal (collectively, “Moral\nRights”) may not be assignable under applicable law and to the extent the\nA-3\nfollowing is allowed by the laws in the various countries where Moral Rights exist, I hereby irrevocably waive such\nMoral Rights and consent to any action of any member of the Company Group that would violate such Moral Rights in\nthe absence of such consent.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all\nDevelopments made by me (solely or jointly with others) during the Assignment Period. The records may be in the\nform of notes, sketches, drawings, flow charts, electronic data or recordings, and any other format. The records will be\navailable to and remain the sole property of any member of the Company Group at all times. I agree not to remove such\nrecords from the Company’s place of business except as expressly permitted by Company Group policy, which may,\nfrom time to time, be revised at the sole election of such member of the Company Group for the purpose of furthering\nthe business of such member of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company’s expense, in\nevery way to secure the rights of each member of the Company Group in the Developments and any copyrights, patents,\ntrademarks, service marks, database rights, domain names, mask work rights, moral rights, and other intellectual\nproperty rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments,\nrecordations, and all other instruments that the Company shall deem necessary in order to apply for, obtain, maintain,\nand transfer such rights and in order to assign and convey to each member of the Company Group the sole and\nexclusive right, title, and interest in and to such Developments, and any intellectual property and other proprietary rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so,\nany such instrument or papers shall continue after the Assignment Period until the expiration of the last such intellectual\nproperty right to expire in any country of the world; provided, however, the Company shall reimburse me for my\nreasonable expenses incurred in connection with carrying out the foregoing obligation. If the Company is unable\nbecause of my mental or physical incapacity or unavailability for any other reason to secure my signature to apply for or\nto pursue any application for any United States or foreign patents or copyright registrations covering Developments or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and\nstead to execute and file any such applications or records and to do all other lawfully permitted acts to further the\napplication for, prosecution, issuance, maintenance, and transfer of letters patent or registrations thereon with the same\nlegal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the Company any and\nall claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the\nCompany (and will not keep in my possession, recreate, or deliver to\nA-4\nanyone else) any and all Confidential Information and all other documents, materials, information, and property\ndeveloped by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property\nsituated on the Company’s premises and owned by the Company (or any other member of the Company Group),\nincluding disks and other storage media, filing cabinets, and other work areas, is subject to inspection by personnel of\nany member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any\nprospective employer, partner, co-venturer, investor, or lender prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the Employment Period and the Post-Termination Non-Compete Period, I shall\nnot, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole proprietor,\npartner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in\nany Competitive Activities or own any securities (debt or equity) in any person, company, enterprise, or entity that is\nengaged in Competitive Activities, within the United States or any other jurisdiction in which the Company Group is\nactively engaged in business. Notwithstanding the foregoing, my ownership of securities of a public company engaged\nin Competitive Activities not in excess of three percent (3%) of any class of such securities shall not be considered a\nbreach of the covenants set forth in this Section.\n(b) Non-Interference. During the Employment Period and the Post-Termination Non-Interference Period, I shall\nnot, directly or indirectly for my own account or for the account of any other individual or entity, engage in Interfering\nActivities.\n(c) Definitions. For purposes of this Non-Interference Agreement :\n(i) “Business Relation” shall mean any current or prospective client, customer, licensee, or other\nbusiness relation of any member of the Company Group, or any such relation that was a client, customer, licensee,\nsupplier, or other business relation within the six (6) month period prior to the expiration of the Employment Period, in\neach case, to whom I provided services, or with whom I transacted business, or whose identity became known to me in\nconnection with my relationship with or employment by the Company Group.\n(ii) “Competitive Activities” shall mean consumer health care related businesses, including the business\nof acting as custodian or administrator for medical payment reimbursement accounts, including, but not limited to, health\nsavings accounts, flexible spending accounts and health reimbursement accounts or any business activities in which any\nmember of the Company Group is engaged (or has committed plans to engage) during the Employment Period.\nA-5\n(iii) “Interfering Activities” shall mean (A) encouraging, soliciting, or inducing, or in any manner\nattempting to encourage, solicit, or induce, any Person employed by, or providing consulting services to, any member of\nthe Company Group to terminate such Person’s employment or services (or in the case of a consultant, materially\nreducing such services) with any member of the Company Group; (B) hiring any individual who was employed by any\nmember of the Company Group within the six (6) month period prior to the date of such hiring; or (C) encouraging,\nsoliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any Business Relation to cease\ndoing business with or reduce the amount of business conducted with any member of the Company Group, or in any way\ninterfering with the relationship between any such Business Relation and any member of the Company Group.\n(iv) “Person” shall mean any individual, corporation, partnership, limited liability company, joint\nventure, association, joint‐stock company, trust (charitable or non-charitable), unincorporated organization, or other form\nof business entity.\n(v) “Post-Termination Non-Compete Period” shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twelve (12) month anniversary of such date of\ntermination.\n(vi) “Post-Termination Non-Interference Period” shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twenty-four (24) month anniversary of such date\nof termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make\nany disparaging or defamatory comments regarding any member of the Company Group or its respective current or\nformer directors, officers, employees or shareholders in any respect or make any comments concerning any aspect of\nmy relationship with any member of the Company Group or any conduct or events which precipitated any termination\nof my employment from any member of the Company Group. However, my obligations under this subparagraph (d)\nshall not apply to disclosures required by applicable law, regulation, or order of a court or governmental agency.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to\nConfidential Information renders me special and unique within the Company’s industry, and that I will have the\nopportunity to develop substantial relationships with existing and prospective clients, accounts, customers, consultants,\ncontractors, investors, and strategic partners of any member of the Company Group during the course of and as a result\nof my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and\nlimitations set forth in this Non-Interference Agreement are reasonable and valid in geographical and temporal scope and\nin all other respects and are essential to protect the value of the business and assets of any member of the Company\nGroup. I acknowledge further that the restrictions and limitations set forth in this Non-Interference Agreement will not\nmaterially interfere with my ability to earn a living following the termination of my employment with the\nA-6\nCompany and that my ability to earn a livelihood without violating such restrictions is a material condition to my\nemployment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be\nin addition to and not in lieu of any other rights and remedies available to any member of the Company Group at law or\nin equity. If any of the provisions of this Non-Interference Agreement or any part of any of them is hereafter construed or\nadjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Non-Interference Agreement,\nwhich shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held\nto be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree\nthat the court making such determination shall have the power to reduce the duration, scope, and/or area of such\nprovision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said\nprovision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in\nthis Non-Interference Agreement may result in substantial, continuing, and irreparable injury to the members of the\nCompany Group. Therefore, I hereby agree that, in addition to any other remedy that may be available to the Company,\nany member of the Company Group shall be entitled to injunctive relief, specific performance, or other equitable relief\nby a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of this Non-\nInterference Agreement without the necessity of proving irreparable harm or injury as a result of such breach or\nthreatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-\nTermination Non-Compete Period, or Post-Termination Non-Interference Period, as applicable, shall be tolled during any\nperiod of violation of any of the covenants in Section 5 hereof and during any other period required for litigation during\nwhich the Company or any other member of the Company Group seeks to enforce such covenants against me if it is\nultimately determined that I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to\nthe Company and/or any other member of the Company Group and its or their respective counsel in connection with any\ninvestigation, administrative proceeding, or litigation relating to any matter that occurred during my employment in\nwhich I was involved or of which I have knowledge. As a condition of such cooperation, the Company shall reimburse\nme for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with\nthis paragraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to,\nany government agency) to give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in\nany way relates to my employment by the Company and/or any other member of the Company Group, I will give prompt\nnotice of such request to the Company and will make no disclosure until the Company\nA-7\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting\nperson or entity to such disclosure.\nSection 10. General Provisions.\n(a) Governing Law, Venue and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE\nVALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE\nAGREEMENT IS GOVERNED BY AND IS TO BE CONSTRUED UNDER THE LAWS OF THE STATE OF\nDELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT\nREGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO\nTHIS RELEASE OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED\nSTATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION\nEXISTS, AND IN ANY COURT SITTING IN SALT LAKE CITY, UTAH, BUT ONLY IN THE EVENT FEDERAL\nJURISDICTION DOES NOT EXIST, AND ANY APPLICABLE APPELLATE COURTS. FURTHER, I HEREBY\nWAIVE ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING\nUNDER OR IN CONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding\nbetween the Company and me relating to the subject matter herein and merges all prior discussions between us. No\nmodification or amendment to this Non-Interference Agreement, nor any waiver of any rights under this Non-\nInterference Agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or\nchanges in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-Interference\nAgreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be\nconstrued as granting me any right to continued employment by the Company, and the right of the Company to\nterminate my employment at any time and for no reason or any reason, with or without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors,\nadministrators, and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.\nI expressly acknowledge and agree that this Non-Interference Agreement may be assigned by the Company without my\nconsent to any other member of the Company Group as well as any purchaser of all or substantially all of the assets or\nstock of the Company or of any business or division of the Company for which I provide services, whether by purchase,\nmerger, or other similar corporate transaction, provided that the license granted pursuant to Section 2(a) may be\nassigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my\nemployment with the Company and/or the assignment of this Non-Interference Agreement by the Company to any\nsuccessor in interest or other assignee.\nA-8\n***\n[Signature to appear on the following page.]\nA-9\nI, Edward R. Bloomberg, have executed this Confidentiality, Non-Interference, and Invention Assignment\nAgreement on the date set forth below:\nDate:\n(Signature)\n(Type/Print Name)\n[Signature Page to Edward R. Bloomberg Non-Interference Agreement]	EX-10.2 3 exhibit102-confidentiality.htm EXHIBIT 10.2\nExhibit A\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, HealthEquity, Inc., a Delaware\ncorporation (the “Company”), and in consideration of my employment with the Company and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms set forth in this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (this “Non-Interference Agreement”):\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access\nto information about the Company and its direct and indirect subsidiaries and affiliates (collectively, the “Company\nGroup”) and that my employment with the Company shall bring me into close contact with confidential and proprietary\ninformation of any member of the Company Group. In recognition of the foregoing, I agree, at all times during the term\nof my employment with the Company and thereafter, to hold in confidence, and not to use, except for the benefit of any\nmember of the Company Group, or to disclose to any person, firm, corporation, or other entity without written\nauthorization of the Company, any Confidential Information that I obtain or create. I further agree not to make copies of\nsuch Confidential Information except as authorized by the Company. I understand that “Confidential Information”\nmeans information that any member of the Company Group has developed, acquired, created, compiled, discovered, or\nowned or will develop, acquire, create, compile, discover, or own, that has value in or to the business of any member of\nthe Company Group that is not generally known and that the Company wishes to maintain as confidential. I understand\nthat Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual\nor anticipated business and/or products, research, or development of the Company, or to the Company’s technical data,\ntrade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding the\nCompany’s products or services and markets, customer lists, and customers (including, but not limited to, customers of\nthe Company on whom I called or with whom I may become acquainted during the term of my employment), software,\ndevelopments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly\nin writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property.\nNotwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have\nbecome publicly and widely known through no unauthorized disclosure by me or others who were under confidentiality\nobligations as to the item or items involved, or (ii) any information that I am required to disclose to, or by, any\ngovernmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice\nthereof so that any member of the Company Group may seek an appropriate protective order and/or waive in writing\ncompliance with the confidentiality provisions of this Non-Interference Agreement.\nA-1\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference\nAgreement as an employee of the Company has not breached and will not breach any agreement to keep in confidence\nproprietary information, knowledge, or data acquired by me in confidence or trust prior or subsequent to the\ncommencement of my employment with the Company, and I will not disclose to any member of the Company Group, or\ninduce any member of the Company Group to use, any developments, or confidential or proprietary information or\nmaterial I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\n(c) Third Party Information. I understand that the Company Group has received and in the future may receive\nfrom third parties confidential or proprietary information (“Third Party Information™) subject to a duty on the Company\nGroup’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. In\nrecognition of the foregoing, I agree, at all times during the period of my employment with the Company (the\n“Employment Period”) and thereafter, to hold in confidence and will not disclose to anyone (other than Company Group\npersonnel who need to know such information in connection with their work for the Company Group), and not to use,\nexcept for the benefit of the Company Group, Third Party Information without the express prior written consent of an\nofficer of the Company and otherwise treat Third Party Information as Confidential Information.\n(d) Whistleblower; Defend Trade Secrets Act Disclosure.\n(i) In addition, I understand that nothing in this Agreement shall be construed to prohibit me from\nreporting possible violations of law or regulation to any governmental agency or regulatory body or making other\ndisclosures that are protected under any law or regulation, or from filing a charge with or participating in any\ninvestigation or proceeding conducted by any governmental agency or regulatory body.\n(i) I understand that the Defend Trade Secrets Act provides that I may not be held criminally or civilly\nliable under any Federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a\nFederal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of\nreporting or investigating a suspected violation of law; or that is made in a complaint or other document filed in a lawsuit\nor other proceeding, if such filing is made under seal. In the event that I file a lawsuit for retaliation by any member of\nthe Company Group for reporting a suspected violation of law, I may disclose the trade secret to my attorney and use the\ntrade secret information in the court proceeding, if I file any document containing the trade secret under seal and do not\ndisclose the trade secret, except pursuant to court order.\nSection 2. Developments.\n \n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with\nparticularity all developments, original works of authorship, improvements, and trade secrets that I can demonstrate\nwere created or owned by me prior to the\ncommencement of my employment (collectively referred to as “Prior Developments™), which belong solely to me or\nbelong to me jointly with another, that relate in any way to any of the actual or proposed businesses, products, or\nresearch and development of any member of the Company Group, and that are not assigned to the Company hereunder,\nor if no such list is attached, I represent that there are no such Prior Developments. If, during any period during which I\nperform or performed services for any member of the Company Group both before or after the date hereof (the\n“Assignment Period”), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any\nother capacity, I incorporate (or have incorporated) into any member of the Company Group’s product or process a Prior\nDevelopment owned by me or in which I have an interest, I hereby grant each member of the Company Group, and each\nmember of the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide\nlicense (with the right to sublicense) to make, have made, copy, modify, make derivative works of, use, sell, and\notherwise distribute such Prior Development as part of or in connection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full\nwritten disclosure to the Company, and will hold in trust for the sole right and benefit of the Company all developments,\noriginal works of authorship, inventions, concepts, know-how, improvements, trade secrets, and similar proprietary\nrights, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive\nor develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice, or have caused\nor may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during\nregular working hours, provided they either (i) relate at the time of conception, development or reduction to practice to\nthe business of any member of the Company Group, or the actual or anticipated research or development of any\nmember of the Company Group; (ii) result from or relate to any work performed for any member of the Company\nGroup; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the Company\nGroup, or any Confidential Information, or in consultation with personnel of any member of the Company Group\n(collectively referred to as “Developments™). I further acknowledge that all Developments made by me (solely or jointly\nwith others) within the scope of and during the Assignment Period are “works made for hire” (to the greatest extent\npermitted by applicable law) for which I am, in part, compensated by my salary, unless regulated otherwise by law, but\nthat, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the Company, or\nits designee, all my right, title, and interest throughout the world in and to any such Development. If any Developments\ncannot be assigned, I hereby grant to each member of the Company Group an exclusive, assignable, irrevocable,\nperpetual, worldwide, sublicenseable (through one or multiple tiers), royalty-free, unlimited license to use, make,\nmodify, sell, offer for sale, reproduce, distribute, create derivative works of, publicly perform, publicly display and\ndigitally perform and display such work in any media now known or hereafter known. Outside the scope of my service,\nwhether during or after my employment with any member of the Company Group, I agree not to (i) modify, adapt, alter,\ntranslate, or create derivative works from any such work of authorship or (ii) merge any such work of authorship with\nother Developments. To the extent rights related to paternity, integrity, disclosure and withdrawal (collectively, “Moral\nRights”) may not be assignable under applicable law and to the extent the\n \n \n \nA-3\nfollowing is allowed by the laws in the various countries where Moral Rights exist, I hereby irrevocably waive such\nMoral Rights and consent to any action of any member of the Company Group that would violate such Moral Rights in\nthe absence of such consent.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all\nDevelopments made by me (solely or jointly with others) during the Assignment Period. The records may be in the\nform of notes, sketches, drawings, flow charts, electronic data or recordings, and any other format. The records will be\navailable to and remain the sole property of any member of the Company Group at all times. I agree not to remove such\nrecords from the Company’s place of business except as expressly permitted by Company Group policy, which may,\nfrom time to time, be revised at the sole election of such member of the Company Group for the purpose of furthering\nthe business of such member of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company’s expense, in\nevery way to secure the rights of each member of the Company Group in the Developments and any copyrights, patents,\ntrademarks, service marks, database rights, domain names, mask work rights, moral rights, and other intellectual\nproperty rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments,\nrecordations, and all other instruments that the Company shall deem necessary in order to apply for, obtain, maintain,\nand transfer such rights and in order to assign and convey to each member of the Company Group the sole and\nexclusive right, title, and interest in and to such Developments, and any intellectual property and other proprietary rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so,\nany such instrument or papers shall continue after the Assignment Period until the expiration of the last such intellectual\nproperty right to expire in any country of the world; provided, however, the Company shall reimburse me for my\nreasonable expenses incurred in connection with carrying out the foregoing obligation. If the Company is unable\nbecause of my mental or physical incapacity or unavailability for any other reason to secure my signature to apply for or\nto pursue any application for any United States or foreign patents or copyright registrations covering Developments or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and\nstead to execute and file any such applications or records and to do all other lawfully permitted acts to further the\napplication for, prosecution, issuance, maintenance, and transfer of letters patent or registrations thereon with the same\nlegal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the Company any and\nall claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the\nCompany (and will not keep in my possession, recreate, or deliver to\nA-4\nanyone else) any and all Confidential Information and all other documents, materials, information, and property\ndeveloped by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property\nsituated on the Company’s premises and owned by the Company (or any other member of the Company Group),\nincluding disks and other storage media, filing cabinets, and other work areas, is subject to inspection by personnel of\nany member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any\nprospective employer, partner, co-venturer, investor, or lender prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(@) Non-Competition. During the Employment Period and the Post-Termination Non-Compete Period, I shall\nnot, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole proprietor,\npartner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in\nany Competitive Activities or own any securities (debt or equity) in any person, company, enterprise, or entity that is\nengaged in Competitive Activities, within the United States or any other jurisdiction in which the Company Group is\nactively engaged in business. Notwithstanding the foregoing, my ownership of securities of a public company engaged\nin Competitive Activities not in excess of three percent (3%) of any class of such securities shall not be considered a\nbreach of the covenants set forth in this Section.\n \n(b) Non-Interference. During the Employment Period and the Post-Termination Non-Interference Period, I shall\nnot, directly or indirectly for my own account or for the account of any other individual or entity, engage in Interfering\nActivities.\n(c) Definitions. For purposes of this Non-Interference Agreement :\n(i) “Business Relation” shall mean any current or prospective client, customer, licensee, or other\nbusiness relation of any member of the Company Group, or any such relation that was a client, customer, licensee,\nsupplier, or other business relation within the six (6) month period prior to the expiration of the Employment Period, in\neach case, to whom I provided services, or with whom I transacted business, or whose identity became known to me in\nconnection with my relationship with or employment by the Company Group.\n(i) “Competitive Activities” shall mean consumer health care related businesses, including the business\nof acting as custodian or administrator for medical payment reimbursement accounts, including, but not limited to, health\nsavings accounts, flexible spending accounts and health reimbursement accounts or any business activities in which any\nmember of the Company Group is engaged (or has committed plans to engage) during the Employment Period.\nA-5\n(iii) “Interfering Activities” shall mean (A) encouraging, soliciting, or inducing, or in any manner\nattempting to encourage, solicit, or induce, any Person employed by, or providing consulting services to, any member of\nthe Company Group to terminate such Person’s employment or services (or in the case of a consultant, materially\nreducing such services) with any member of the Company Group; (B) hiring any individual who was employed by any\nmember of the Company Group within the six (6) month period prior to the date of such hiring; or (C) encouraging,\nsoliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any Business Relation to cease\ndoing business with or reduce the amount of business conducted with any member of the Company Group, or in any way\ninterfering with the relationship between any such Business Relation and any member of the Company Group.\n(iv) “Person” shall mean any individual, corporation, partnership, limited liability company, joint\nventure, association, joint-stock company, trust (charitable or non-charitable), unincorporated organization, or other form\nof business entity.\n \n(v) “Post-Termination Non-Compete Period” shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twelve (12) month anniversary of such date of\ntermination.\n(vi) “Post-Termination Non-Interference Period” shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twenty-four (24) month anniversary of such date\nof termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make\nany disparaging or defamatory comments regarding any member of the Company Group or its respective current or\nformer directors, officers, employees or shareholders in any respect or make any comments concerning any aspect of\nmy relationship with any member of the Company Group or any conduct or events which precipitated any termination\nof my employment from any member of the Company Group. However, my obligations under this subparagraph (d)\nshall not apply to disclosures required by applicable law, regulation, or order of a court or governmental agency.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to\nConfidential Information renders me special and unique within the Company’s industry, and that I will have the\nopportunity to develop substantial relationships with existing and prospective clients, accounts, customers, consultants,\ncontractors, investors, and strategic partners of any member of the Company Group during the course of and as a result\nof my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and\nlimitations set forth in this Non-Interference Agreement are reasonable and valid in geographical and temporal scope and\nin all other respects and are essential to protect the value of the business and assets of any member of the Company\nGroup. I acknowledge further that the restrictions and limitations set forth in this Non-Interference Agreement will not\nmaterially interfere with my ability to earn a living following the termination of my employment with the\nA-6\nCompany and that my ability to earn a livelihood without violating such restrictions is a material condition to my\nemployment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be\nin addition to and not in lieu of any other rights and remedies available to any member of the Company Group at law or\nin equity. If any of the provisions of this Non-Interference Agreement or any part of any of them is hereafter construed or\nadjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Non-Interference Agreement,\nwhich shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held\nto be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree\nthat the court making such determination shall have the power to reduce the duration, scope, and/or area of such\nprovision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said\nprovision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in\nthis Non-Interference Agreement may result in substantial, continuing, and irreparable injury to the members of the\nCompany Group. Therefore, I hereby agree that, in addition to any other remedy that may be available to the Company,\nany member of the Company Group shall be entitled to injunctive relief, specific performance, or other equitable relief\nby a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of this Non-\nInterference Agreement without the necessity of proving irreparable harm or injury as a result of such breach or\nthreatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-\nTermination Non-Compete Period, or Post-Termination Non-Interference Period, as applicable, shall be tolled during any\nperiod of violation of any of the covenants in Section 5 hereof and during any other period required for litigation during\nwhich the Company or any other member of the Company Group seeks to enforce such covenants against me if it is\nultimately determined that I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to\nthe Company and/or any other member of the Company Group and its or their respective counsel in connection with any\ninvestigation, administrative proceeding, or litigation relating to any matter that occurred during my employment in\nwhich I was involved or of which I have knowledge. As a condition of such cooperation, the Company shall reimburse\nme for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with\nthis paragraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to,\nany government agency) to give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in\nany way relates to my employment by the Company and/or any other member of the Company Group, I will give prompt\nnotice of such request to the Company and will make no disclosure until the Company\nA-7\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting\nperson or entity to such disclosure.\nSection 10. General Provisions.\n(@) Governing Law, Venue and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE\nVALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE\nAGREEMENT IS GOVERNED BY AND IS TO BE CONSTRUED UNDER THE LAWS OF THE STATE OF\nDELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT\nREGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO\nTHIS RELEASE OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED\nSTATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION\nEXISTS, AND IN ANY COURT SITTING IN SALT LAKE CITY, UTAH, BUT ONLY IN THE EVENT FEDERAL\nJURISDICTION DOES NOT EXIST, AND ANY APPLICABLE APPELLATE COURTS. FURTHER, I HEREBY\nWAIVE ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING\nUNDER OR IN CONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n \n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding\nbetween the Company and me relating to the subject matter herein and merges all prior discussions between us. No\nmodification or amendment to this Non-Interference Agreement, nor any waiver of any rights under this Non-\nInterference Agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or\nchanges in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-Interference\nAgreement.\n \n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be\nconstrued as granting me any right to continued employment by the Company, and the right of the Company to\nterminate my employment at any time and for no reason or any reason, with or without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors,\nadministrators, and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.\nI expressly acknowledge and agree that this Non-Interference Agreement may be assigned by the Company without my\nconsent to any other member of the Company Group as well as any purchaser of all or substantially all of the assets or\nstock of the Company or of any business or division of the Company for which I provide services, whether by purchase,\nmerger, or other similar corporate transaction, provided that the license granted pursuant to Section 2(a) may be\nassigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my\nemployment with the Company and/or the assignment of this Non-Interference Agreement by the Company to any\nsuccessor in interest or other assignee.\n[Signature to appear on the following page.]\nA-9\nI, Edward R. Bloomberg, have executed this Confidentiality, Non-Interference, and Invention Assignment\nAgreement on the date set forth below:\nDate:\n(Signature)\n(Type/Print Name)\n[Signature Page to Edward R. Bloomberg Non-Interference Agreement]	EX-10.2 3 exhibit102-confidentiality.htm EXHIBIT 10.2\nExhibit A\nCONFIDENTIALITY NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, HealthEquity, Inc., a Delaware\ncorporation (the "Company."), and in consideration of my employment with the Company and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms set forth in this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (this "Non-Interference Agreement"):\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access\nto information about the Company and its direct and indirect subsidiaries and affiliates (collectively, the "Company\nGroup") and that my employment with the Company shall bring me into close contact with confidential and proprietary\ninformation of any member of the Company Group. In recognition of the foregoing, I agree, at all times during the term\nof my employment with the Company and thereafter, to hold in confidence, and not to use, except for the benefit of any\nmember of the Company Group, or to disclose to any person, firm, corporation, or other entity without written\nauthorization of the Company, any Confidential Information that I obtain or create. I further agree not to make copies of\nsuch Confidential Information except as authorized by the Company. I understand that "Confidential Information'\nmeans information that any member of the Company Group has developed, acquired, created, compiled, discovered, or\nowned or will develop, acquire, create, compile, discover, or own, that has value in or to the business of any member of\nthe Company Group that is not generally known and that the Company wishes to maintain as confidential. I understand\nthat Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual\nor anticipated business and/or products, research, or development of the Company, or to the Company's technical data,\ntrade secrets, or know-how, including but not limited to, research, product plans, or other information regarding the\nCompany's products or services and markets, customer lists, and customers (including, but not limited to, customers of\nthe Company on whom I called or with whom I may become acquainted during the term of my employment), software,\ndevelopments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly\nin writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property.\nNotwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have\nbecome publicly and widely known through no unauthorized disclosure by me or others who were under confidentiality\nobligations as to the item or items involved, or (ii) any information that I am required to disclose to, or by, any\ngovernmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice\nthereof so that any member of the Company Group may seek an appropriate protective order and/or waive in writing\ncompliance with the confidentiality provisions of this Non-Interference Agreement.\nA-1\n(b) Formen Employer Information. I represent that my performance of all of the terms of this Non-Interference\nAgreement as an employee of the Company has not breached and will not breach any agreement to keep in confidence\nproprietary information, knowledge, or data acquired by me in confidence or trust prior or subsequent to the\ncommencement of my employment with the Company, and I will not disclose to any member of the Company Group, or\ninduce any member of the Company Group to use, any developments, or confidential or proprietary information or\nmaterial I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\n(c) Third Party. Information. I understand that the Company Group has received and in the future may receive\nfrom third parties confidential or proprietary information ("Third Party Information") subject to a duty on the Company\nGroup's part to maintain the confidentiality of such information and to use it only for certain limited purposes. In\nrecognition of the foregoing, I agree, at all times during the period of my employment with the Company (the\n"Employment Period") and thereafter, to hold in confidence and will not disclose to anyone (other than Company Group\npersonnel who need to know such information in connection with their work for the Company Group), and not to use,\nexcept for the benefit of the Company Group, Third Party Information without the express prior written consent of an\nofficer of the Company and otherwise treat Third Party Information as Confidential Information.\n(d) Whistleblower; Defend Trade Secrets Act Disclosure.\n(i) In addition, I understand that nothing in this Agreement shall be construed to prohibit me from\nreporting possible violations of law or regulation to any governmental agency or regulatory body or making other\ndisclosures that are protected under any law or regulation, or from filing a charge with or participating in any\ninvestigation or proceeding conducted by any governmental agency or regulatory body.\n(ii) I understand that the Defend Trade Secrets Act provides that I may not be held criminally or civilly\nliable under any Federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a\nFederal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of\nreporting or investigating a suspected violation of law; or that is made in a complaint or other document filed in a lawsuit\nor other proceeding, if such filing is made under seal. In the event that I file a lawsuit for retaliation by any member\nof\nthe Company Group for reporting a suspected violation of law, I may disclose the trade secret to my attorney and use the\ntrade secret information in the court proceeding, if I file any document containing the trade secret under seal and do not\ndisclose the trade secret, except pursuant to court order.\nSection 2. Developments.\n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with\nparticularity all developments, original works of authorship, improvements, and trade secrets that I can demonstrate\nwere created or owned by me prior to the\nA-2\ncommencement of my employment (collectively referred to as "Prion Developments"), which belong solely to me or\nbelong to me jointly with another, that relate in any way to any of the actual or proposed businesses, products, or\nresearch and development of any member of the Company Group, and that are not assigned to the Company hereunder,\nor if no such list is attached, I represent that there are no such Prior Developments. If, during any period during which I\nperform or performed services for any member of the Company Group both before or after the date hereof (the\n"Assignment Period"), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any\nother capacity, I incorporate (or have incorporated) into any member of the Company Group's product or process a Prior\nDevelopment owned by me or in which I have an interest, I hereby grant each member of the Company Group, and each\nmember of the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide\nlicense (with the right to sublicense) to make, have made, copy, modify, make derivative works of, use, sell, and\notherwise distribute such Prior Development as part of or in connection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full\nwritten disclosure to the Company, and will hold in trust for the sole right and benefit of the Company all developments,\noriginal works of authorship, inventions, concepts, know-how, improvements, trade secrets, and similar proprietary\nrights, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive\nor develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice, or have caused\nor may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during\nregular working hours, provided they either (i) relate at the time of conception, development or reduction to practice to\nthe business of any member of the Company Group, or the actual or anticipated research or development of any\nmember of the Company Group; (ii) result from or relate to any work performed for any member of the Company\nGroup; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the Company\nGroup, or any Confidential Information, or in consultation with personnel of any member of the Company Group\n(collectively referred to as "Developments"). I further acknowledge that all Developments made by me (solely or jointly\nwith others) within the scope of and during the Assignment Period are "works made for hire" (to the greatest extent\npermitted by applicable law) for which I am, in part, compensated by my salary, unless regulated otherwise by law, but\nthat, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the Company, or\nits designee, all my right, title, and interest throughout the world in and to any such Development. If any Developments\ncannot be assigned, I hereby grant to each member of the Company Group an exclusive, assignable, irrevocable,\nperpetual, worldwide, sublicenseable (through one or multiple tiers), royalty-free, unlimited license to use, make,\nmodify, sell, offer for sale, reproduce, distribute, create derivative works of, publicly perform, publicly display and\ndigitally perform and display such work in any media now known or hereafter known. Outside the scope of my service,\nwhether during or after my employment with any member of the Company Group, I agree not to (i) modify, adapt, alter,\ntranslate, or create derivative works from any such work of authorship or (ii) merge any such work of authorship with\nother Developments. To the extent rights related to paternity, integrity, disclosure and withdrawal (collectively, "Moral\nRights") may not be assignable under applicable law and to the extent the\nA-3\nfollowing is allowed by the laws in the various countries where Moral Rights exist, I hereby irrevocably waive such\nMoral Rights and consent to any action of any member of the Company Group that would violate such Moral Rights in\nthe absence of such consent.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all\nDevelopments made by me (solely or jointly with others) during the Assignment Period. The records may be in the\nform of notes, sketches, drawings, flow charts, electronic data or recordings, and any other format. The records will be\navailable to and remain the sole property of any member of the Company Group at all times. I agree not to remove such\nrecords from the Company's place of business except as expressly permitted by Company Group policy, which may,\nfrom time to time, be revised at the sole election of such member of the Company Group for the purpose of furthering\nthe business of such member of the Company Group.\n(d) Intellectual Property. Rights. I agree to assist the Company, or its designee, at the Company's expense, in\nevery way to secure the rights of each member of the Company Group in the Developments and any copyrights, patents,\ntrademarks, service marks, database rights, domain names, mask work rights, moral rights, and other intellectual\nproperty rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments,\nrecordations, and all other instruments that the Company shall deem necessary in order to apply for, obtain, maintain,\nand transfer such rights and in order to assign and convey to each member of the Company Group the sole and\nexclusive right, title, and interest in and to such Developments, and any intellectual property and other proprietary rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so,\nany such instrument or papers shall continue after the Assignment Period until the expiration of the last such intellectual\nproperty right to expire in any country of the world; provided, however, the Company shall reimburse me for my\nreasonable expenses incurred in connection with carrying out the foregoing obligation. If the Company is unable\nbecause of my mental or physical incapacity or unavailability for any other reason to secure my signature to apply for\nor\nto pursue any application for any United States or foreign patents or copyright registrations covering Developments or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and\nstead to execute and file any such applications or records and to do all other lawfully permitted acts to further the\napplication for, prosecution, issuance, maintenance, and transfer of letters patent or registrations thereon with the same\nlegal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the Company any and\nall claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the\nCompany (and will not keep in my possession, recreate, or deliver to\nA-4\nanyone else) any and all Confidential Information and all other documents, materials, information, and property\ndeveloped by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property\nsituated on the Company's premises and owned by the Company (or any other member of the Company Group),\nincluding disks and other storage media, filing cabinets, and other work areas, is subject to inspection by personnel of\nany member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any\nprospective employer, partner, co-venturer, investor, or lender prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the Employment Period and the Post-Termination Non-Compete Period, I shall\nnot, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole proprietor,\npartner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in\nany Competitive Activities or own any securities (debt or equity) in any person, company, enterprise, or entity that is\nengaged in Competitive Activities, within the United States or any other jurisdiction in which the Company Group is\nactively engaged in business. Notwithstanding the foregoing, my ownership of securities of a public company engaged\nin Competitive Activities not in excess of three percent (3%) of any class of such securities shall not be considered a\nbreach of the covenants set forth in this Section.\n(b) Non-Interference. During the Employment Period and the Post-Termination Non-Interference Period, I shall\nnot, directly or indirectly for my own account or for the account of any other individual or entity, engage in Interfering\nActivities.\n(c) Definitions. For purposes of this Non-Interference Agreement\n(i) "Business Relation" shall mean any current or prospective client, customer, licensee, or other\nbusiness relation of any member of the Company Group, or any such relation that was a client, customer, licensee,\nsupplier, or other business relation within the six (6) month period prior to the expiration of the Employment Period, in\neach case, to whom I provided services, or with whom I transacted business, or whose identity became known to me in\nconnection with my relationship with or employment by the Company Group.\n(ii) "Competitive Activities" shall mean consumer health care related businesses, including the business\nof acting as custodian or administrator for medical payment reimbursement accounts, including, but not limited to, health\nsavings accounts, flexible spending accounts and health reimbursement accounts or any business activities in which any\nmember of the Company Group is engaged (or has committed plans to engage) during the Employment Period.\nA-5\n(iii) "Interfering ringActivities' shall mean (A) encouraging, soliciting, or inducing, or in any manner\nattempting to encourage, solicit, or induce, any Person employed by, or providing consulting services to, any member of\nthe Company Group to terminate such Person's employment or services (or in the case of a consultant, materially\nreducing such services) with any member of the Company Group; (B) hiring any individual who was employed by any\nmember\nof\nthe\nCompany\nGroup\nwithin\nthe\nsix\n(6)\nmonth\nperiod\nprior\nto\nthe\ndate\nof\nsuch\nhiring;\nor\n(C)\nencouraging,\nsoliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any Business Relation to cease\ndoing business with or reduce the amount of business conducted with any member of the Company Group, or in any way\ninterfering with the relationship between any such Business Relation and any member of the Company Group.\n(iv) "Person" shall mean any individual, corporation, partnership, limited liability company, joint\nventure, association, joint-stock company, trust (charitable or non-charitable), unincorporated organization, or other form\nof business entity.\n(v) "Post-Termination Non-Compete Period" shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twelve (12) month anniversary of such date of\ntermination.\n(vi) "Post-Termination Non-Interference Period" shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twenty-four (24) month anniversary of such date\nof termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make\nany disparaging or defamatory comments regarding any member of the Company Group or its respective current or\nformer directors, officers, employees or shareholders in any respect or make any comments concerning any aspect of\nmy\nrelationship\nwith\nany\nmember\nof\nthe\nCompany\nGroup\nor\nany\nconduct\nor\nevents\nwhich\nprecipitated\nany\ntermination\nof my employment from any member of the Company Group. However, my obligations under this subparagraph (d)\nshall not apply to disclosures required by applicable law, regulation, or order of a court or governmental agency.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company's business, that access to\nConfidential Information renders me special and unique within the Company's industry, and that I will have the\nopportunity to develop substantial relationships with existing and prospective clients, accounts, customers, consultants,\ncontractors, investors, and strategic partners of any member of the Company Group during the course of and as a result\nof my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and\nlimitations set forth in this Non-Interference Agreement are reasonable and valid in geographical and temporal scope and\nin all other respects and are essential to protect the value of the business and assets of any member of the Company\nGroup. I acknowledge further that the restrictions and limitations set forth in this Non-Interference Agreement will not\nmaterially interfere with my ability to earn a living following the termination of my employment with the\nA-6\nCompany and that my ability to earn a livelihood without violating such restrictions is a material condition to my\nemployment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be\nin addition to and not in lieu of any other rights and remedies available to any member of the Company Group at law or\nin equity. If any of the provisions of this Non-Interference Agreement or any part of any of them is hereafter construed or\nadjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Non-Interference Agreement,\nwhich shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held\nto be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree\nthat the court making such determination shall have the power to reduce the duration, scope, and/or area of such\nprovision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said\nprovision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in\nthis Non-Interference Agreement may result in substantial, continuing, and irreparable injury to the members of the\nCompany Group. Therefore, I hereby agree that, in addition to any other remedy that may be available to the Company,\nany member of the Company Group shall be entitled to injunctive relief, specific performance, or other equitable relief\nby a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of this Non-\nInterference Agreement without the necessity of proving irreparable harm or injury as a result of such breach or\nthreatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-\nTermination Non-Compete Period, or Post-Termination Non-Interference Period, as applicable, shall be tolled during any\nperiod of violation of any of the covenants in Section 5 hereof and during any other period required for litigation during\nwhich the Company or any other member of the Company Group seeks to enforce such covenants against me if it is\nultimately determined that I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to\nthe Company and/or any other member of the Company Group and its or their respective counsel in connection with any\ninvestigation, administrative proceeding, or litigation relating to any matter that occurred during my employment in\nwhich I was involved or of which I have knowledge. As a condition of such cooperation, the Company shall reimburse\nme for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with\nthis paragraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to,\nany government agency) to give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in\nany way relates to my employment by the Company and/or any other member of the Company Group, I will give prompt\nnotice of such request to the Company and will make no disclosure until the Company\nA-7\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting\nperson or entity to such disclosure.\nSection 10. General Provisions.\n(a) Governing Law, Venue and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE\nVALIDITY, INTERPRETATION CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE\nAGREEMENT IS GOVERNED BY AND IS TO BE CONSTRUED UNDER THE LAWS OF THE STATE OF\nDELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT\nREGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO\nTHIS RELEASE OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED\nSTATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION\nEXISTS, AND IN ANY COURT SITTING IN SALT LAKE CITY, UTAH, BUT ONLY IN THE EVENT FEDERAL\nJURISDICTION DOES NOT EXIST, AND ANY APPLICABLE APPELLATE COURTS. FURTHER, I HEREBY\nWAIVE ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING\nUNDER OR IN CONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding\nbetween the Company and me relating to the subject matter herein and merges all prior discussions between us. No\nmodification or amendment to this Non-Interference Agreement, nor any waiver of any rights under this Non-\nInterference Agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or\nchanges in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-Interference\nAgreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be\nconstrued as granting me any right to continued employment by the Company, and the right of the Company to\nterminate my employment at any time and for no reason or any reason, with or without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors,\nadministrators, and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.\nI\nexpressly acknowledge and agree that this Non-Interference Agreement may be assigned by the Company without my\nconsent to any other member of the Company Group as well as any purchaser of all or substantially all of the assets or\nstock of the Company or of any business or division of the Company for which I provide services, whether by purchase,\nmerger, or other similar corporate transaction, provided that the license granted pursuant to Section 2(a) may be\nassigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my\nemployment with the Company and/or the assignment of this Non-Interference Agreement by the Company to any\nsuccessor in interest or other assignee.\nA-8\n*\n>\n*k\n[Signature to appear on the following page.\nA-9\nI, Edward R. Bloomberg, have executed this Confidentiality, Non-Interference, and Invention Assignment\nAgreement on the date set forth below:\nDate:\n-\n(Signature)\n(Type/Print Name)\n[Signature Page to Edward R. Bloomberg Non-Interference Agreement]	EX-10 .2 3 exhibit102-confidentiality.htm EXHIBIT 10.2\nExhibit A\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, HealthEquity, Inc., a Delaware\ncorporation (the “Company”), and in consideration of my employment with the Company and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms set forth in this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (this “Non-Interference Agreement”):\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access\nto information about the Company and its direct and indirect subsidiaries and affiliates (collectively, the “Company\nGroup”) and that my employment with the Company shall bring me into close contact with confidential and proprietary\ninformation of any member of the Company Group. In recognition of the foregoing, I agree, at all times during the term\nof my employment with the Company and thereafter, to hold in confidence, and not to use, except for the benefit of any\nmember of the Company Group, or to disclose to any person, firm, corporation, or other entity without written\nauthorization of the Company, any Confidential Information that I obtain or create. I further agree not to make copies of\nsuch Confidential Information except as authorized by the Company. I understand that “Confidential Information”\nmeans information that any member of the Company Group has developed, acquired, created, compiled, discovered, or\nowned or will develop, acquire, create, compile, discover, or own, that has value in or to the business of any member of\nthe Company Group that is not generally known and that the Company wishes to maintain as confidential. I understand\nthat Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual\nor anticipated business and/or products, research, or development of the Company, or to the Company’s technical data,\ntrade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding the\nCompany’s products or services and markets, customer lists, and customers (including, but not limited to, customers of\nthe Company on whom I called or with whom I may become acquainted during the term of my employment), software,\ndevelopments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly\nin writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property.\nNotwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have\nbecome publicly and widely known through no unauthorized disclosure by me or others who were under confidentiality\nobligations as to the item or items involved, or (ii) any information that I am required to disclose to, or by, any\ngovernmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice\nthereof so that any member of the Company Group may seek an appropriate protective order and/or waive in writing\ncompliance with the confidentiality provisions of this Non-Interference Agreement.\nA-1\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference\nAgreement as an employee of the Company has not breached and will not breach any agreement to keep in confidence\nproprietary information, knowledge, or data acquired by me in confidence or trust prior or subsequent to the\ncommencement of my employment with the Company, and I will not disclose to any member of the Company Group, or\ninduce any member of the Company Group to use, any developments, or confidential or proprietary information or\nmaterial I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\n(c) Third Party Information. I understand that the Company Group has received and in the future may receive\nfrom third parties confidential or proprietary information (“Third Party Information”) subject to a duty on the Company\nGroup’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. In\nrecognition of the foregoing, I agree, at all times during the period of my employment with the Company (the\n“Employment Period”) and thereafter, to hold in confidence and will not disclose to anyone (other than Company Group\npersonnel who need to know such information in connection with their work for the Company Group), and not to use,\nexcept for the benefit of the Company Group, Third Party Information without the express prior written consent of an\nofficer of the Company and otherwise treat Third Party Information as Confidential Information.\n(d) Whistleblower; Defend Trade Secrets Act Disclosure.\n(i) In addition, I understand that nothing in this Agreement shall be construed to prohibit me from\nreporting possible violations of law or regulation to any governmental agency or regulatory body or making other\ndisclosures that are protected under any law or regulation, or from filing a charge with or participating in any\ninvestigation or proceeding conducted by any governmental agency or regulatory body.\n(ii) I understand that the Defend Trade Secrets Act provides that I may not be held criminally or civilly\nliable under any Federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a\nFederal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of\nreporting or investigating a suspected violation of law; or that is made in a complaint or other document filed in a lawsuit\nor other proceeding, if such filing is made under seal. In the event that I file a lawsuit for retaliation by any member of\nthe Company Group for reporting a suspected violation of law, I may disclose the trade secret to my attorney and use the\ntrade secret information in the court proceeding, if I file any document containing the trade secret under seal and do not\ndisclose the trade secret, except pursuant to court order.\nSection 2. Developments.\n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with\nparticularity all developments, original works of authorship, improvements, and trade secrets that I can demonstrate\nwere created or owned by me prior to the\nA-2\ncommencement of my employment (collectively referred to as “Prior Developments”), which belong solely to me or\nbelong to me jointly with another, that relate in any way to any of the actual or proposed businesses, products, or\nresearch and development of any member of the Company Group, and that are not assigned to the Company hereunder,\nor if no such list is attached, I represent that there are no such Prior Developments. If, during any period during which I\nperform or performed services for any member of the Company Group both before or after the date hereof (the\n“Assignment Period”), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any\nother capacity, I incorporate (or have incorporated) into any member of the Company Group’s product or process a Prior\nDevelopment owned by me or in which I have an interest, I hereby grant each member of the Company Group, and each\nmember of the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide\nlicense (with the right to sublicense) to make, have made, copy, modify, make derivative works of, use, sell, and\notherwise distribute such Prior Development as part of or in connection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full\nwritten disclosure to the Company, and will hold in trust for the sole right and benefit of the Company all developments,\noriginal works of authorship, inventions, concepts, know-how, improvements, trade secrets, and similar proprietary\nrights, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive\nor develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice, or have caused\nor may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during\nregular working hours, provided they either (i) relate at the time of conception, development or reduction to practice to\nthe business of any member of the Company Group, or the actual or anticipated research or development of any\nmember of the Company Group; (ii) result from or relate to any work performed for any member of the Company\nGroup; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the Company\nGroup, or any Confidential Information, or in consultation with personnel of any member of the Company Group\n(collectively referred to as “Developments”). I further acknowledge that all Developments made by me (solely or jointly\nwith others) within the scope of and during the Assignment Period are “works made for hire” (to the greatest extent\npermitted by applicable law) for which I am, in part, compensated by my salary, unless regulated otherwise by law, but\nthat, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the Company, or\nits designee, all my right, title, and interest throughout the world in and to any such Development. If any Developments\ncannot be assigned, I hereby grant to each member of the Company Group an exclusive, assignable, irrevocable,\nperpetual, worldwide, sublicenseable (through one or multiple tiers), royalty-free, unlimited license to use, make,\nmodify, sell, offer for sale, reproduce, distribute, create derivative works of, publicly perform, publicly display and\ndigitally perform and display such work in any media now known or hereafter known. Outside the scope of my service,\nwhether during or after my employment with any member of the Company Group, I agree not to (i) modify, adapt, alter,\ntranslate, or create derivative works from any such work of authorship or (ii) merge any such work of authorship with\nother Developments. To the extent rights related to paternity, integrity, disclosure and withdrawal (collectively, “Moral\nRights”) may not be assignable under applicable law and to the extent the\nA-3\nfollowing is allowed by the laws in the various countries where Moral Rights exist, I hereby irrevocably waive such\nMoral Rights and consent to any action of any member of the Company Group that would violate such Moral Rights in\nthe absence of such consent.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all\nDevelopments made by me (solely or jointly with others) during the Assignment Period. The records may be in the\nform of notes, sketches, drawings, flow charts, electronic data or recordings, and any other format. The records will be\navailable to and remain the sole property of any member of the Company Group at all times. I agree not to remove such\nrecords from the Company’s place of business except as expressly permitted by Company Group policy, which may,\nfrom time to time, be revised at the sole election of such member of the Company Group for the purpose of furthering\nthe business of such member of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company’s expense, in\nevery way to secure the rights of each member of the Company Group in the Developments and any copyrights, patents,\ntrademarks, service marks, database rights, domain names, mask work rights, moral rights, and other intellectual\nproperty rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments,\nrecordations, and all other instruments that the Company shall deem necessary in order to apply for, obtain, maintain,\nand transfer such rights and in order to assign and convey to each member of the Company Group the sole and\nexclusive right, title, and interest in and to such Developments, and any intellectual property and other proprietary rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so,\nany such instrument or papers shall continue after the Assignment Period until the expiration of the last such intellectual\nproperty right to expire in any country of the world; provided, however, the Company shall reimburse me for my\nreasonable expenses incurred in connection with carrying out the foregoing obligation. If the Company is unable\nbecause of my mental or physical incapacity or unavailability for any other reason to secure my signature to apply for or\nto pursue any application for any United States or foreign patents or copyright registrations covering Developments or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and\nstead to execute and file any such applications or records and to do all other lawfully permitted acts to further the\napplication for, prosecution, issuance, maintenance, and transfer of letters patent or registrations thereon with the same\nlegal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the Company any and\nall claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the\nCompany (and will not keep in my possession, recreate, or deliver to\nA-4\nanyone else) any and all Confidential Information and all other documents, materials, information, and property\ndeveloped by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property\nsituated on the Company’s premises and owned by the Company (or any other member of the Company Group),\nincluding disks and other storage media, filing cabinets, and other work areas, is subject to inspection by personnel of\nany member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any\nprospective employer, partner, co-venturer, investor, or lender prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the Employment Period and the Post-Termination Non-Compete Period, I shall\nnot, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole proprietor,\npartner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in\nany Competitive Activities or own any securities (debt or equity) in any person, company, enterprise, or entity that is\nengaged in Competitive Activities, within the United States or any other jurisdiction in which the Company Group is\nactively engaged in business. Notwithstanding the foregoing, my ownership of securities of a public company engaged\nin Competitive Activities not in excess of three percent (3%) of any class of such securities shall not be considered a\nbreach of the covenants set forth in this Section.\n(b) Non-Interference. During the Employment Period and the Post-Termination Non-Interference Period, I shall\nnot, directly or indirectly for my own account or for the account of any other individual or entity, engage in Interfering\nActivities.\n(c) Definitions. For purposes of this Non-Interference Agreement :\n(i) “Business Relation” shall mean any current or prospective client, customer, licensee, or other\nbusiness relation of any member of the Company Group, or any such relation that was a client, customer, licensee,\nsupplier, or other business relation within the six (6) month period prior to the expiration of the Employment Period, in\neach case, to whom I provided services, or with whom I transacted business, or whose identity became known to me in\nconnection with my relationship with or employment by the Company Group.\n(ii) “Competitive Activities” shall mean consumer health care related businesses, including the business\nof acting as custodian or administrator for medical payment reimbursement accounts, including, but not limited to, health\nsavings accounts, flexible spending accounts and health reimbursement accounts or any business activities in which any\nmember of the Company Group is engaged (or has committed plans to engage) during the Employment Period.\nA-5\n(iii) “Interfering Activities” shall mean (A) encouraging, soliciting, or inducing, or in any manner\nattempting to encourage, solicit, or induce, any Person employed by, or providing consulting services to, any member of\nthe Company Group to terminate such Person’s employment or services (or in the case of a consultant, materially\nreducing such services) with any member of the Company Group; (B) hiring any individual who was employed by any\nmember of the Company Group within the six (6) month period prior to the date of such hiring; or (C) encouraging,\nsoliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any Business Relation to cease\ndoing business with or reduce the amount of business conducted with any member of the Company Group, or in any way\ninterfering with the relationship between any such Business Relation and any member of the Company Group.\n(iv) “Person” shall mean any individual, corporation, partnership, limited liability company, joint\nventure, association, joint‐stock company, trust (charitable or non-charitable), unincorporated organization, or other form\nof business entity.\n(v) “Post-Termination Non-Compete Period” shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twelve (12) month anniversary of such date of\ntermination.\n(vi) “Post-Termination Non-Interference Period” shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twenty-four (24) month anniversary of such date\nof termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make\nany disparaging or defamatory comments regarding any member of the Company Group or its respective current or\nformer directors, officers, employees or shareholders in any respect or make any comments concerning any aspect of\nmy relationship with any member of the Company Group or any conduct or events which precipitated any termination\nof my employment from any member of the Company Group. However, my obligations under this subparagraph (d)\nshall not apply to disclosures required by applicable law, regulation, or order of a court or governmental agency.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to\nConfidential Information renders me special and unique within the Company’s industry, and that I will have the\nopportunity to develop substantial relationships with existing and prospective clients, accounts, customers, consultants,\ncontractors, investors, and strategic partners of any member of the Company Group during the course of and as a result\nof my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and\nlimitations set forth in this Non-Interference Agreement are reasonable and valid in geographical and temporal scope and\nin all other respects and are essential to protect the value of the business and assets of any member of the Company\nGroup. I acknowledge further that the restrictions and limitations set forth in this Non-Interference Agreement will not\nmaterially interfere with my ability to earn a living following the termination of my employment with the\nA-6\nCompany and that my ability to earn a livelihood without violating such restrictions is a material condition to my\nemployment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be\nin addition to and not in lieu of any other rights and remedies available to any member of the Company Group at law or\nin equity. If any of the provisions of this Non-Interference Agreement or any part of any of them is hereafter construed or\nadjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Non-Interference Agreement,\nwhich shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held\nto be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree\nthat the court making such determination shall have the power to reduce the duration, scope, and/or area of such\nprovision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said\nprovision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in\nthis Non-Interference Agreement may result in substantial, continuing, and irreparable injury to the members of the\nCompany Group. Therefore, I hereby agree that, in addition to any other remedy that may be available to the Company,\nany member of the Company Group shall be entitled to injunctive relief, specific performance, or other equitable relief\nby a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of this Non-\nInterference Agreement without the necessity of proving irreparable harm or injury as a result of such breach or\nthreatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-\nTermination Non-Compete Period, or Post-Termination Non-Interference Period, as applicable, shall be tolled during any\nperiod of violation of any of the covenants in Section 5 hereof and during any other period required for litigation during\nwhich the Company or any other member of the Company Group seeks to enforce such covenants against me if it is\nultimately determined that I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to\nthe Company and/or any other member of the Company Group and its or their respective counsel in connection with any\ninvestigation, administrative proceeding, or litigation relating to any matter that occurred during my employment in\nwhich I was involved or of which I have knowledge. As a condition of such cooperation, the Company shall reimburse\nme for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with\nthis paragraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to,\nany government agency) to give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in\nany way relates to my employment by the Company and/or any other member of the Company Group, I will give prompt\nnotice of such request to the Company and will make no disclosure until the Company\nA-7\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting\nperson or entity to such disclosure.\nSection 10. General Provisions.\n(a) Governing Law, Venue and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE\nVALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE\nAGREEMENT IS GOVERNED BY AND IS TO BE CONSTRUED UNDER THE LAWS OF THE STATE OF\nDELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT\nREGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO\nTHIS RELEASE OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED\nSTATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION\nEXISTS, AND IN ANY COURT SITTING IN SALT LAKE CITY, UTAH, BUT ONLY IN THE EVENT FEDERAL\nJURISDICTION DOES NOT EXIST, AND ANY APPLICABLE APPELLATE COURTS. FURTHER, I HEREBY\nWAIVE ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING\nUNDER OR IN CONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding\nbetween the Company and me relating to the subject matter herein and merges all prior discussions between us. No\nmodification or amendment to this Non-Interference Agreement, nor any waiver of any rights under this Non-\nInterference Agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or\nchanges in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-Interference\nAgreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be\nconstrued as granting me any right to continued employment by the Company, and the right of the Company to\nterminate my employment at any time and for no reason or any reason, with or without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors,\nadministrators, and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.\nI expressly acknowledge and agree that this Non-Interference Agreement may be assigned by the Company without my\nconsent to any other member of the Company Group as well as any purchaser of all or substantially all of the assets or\nstock of the Company or of any business or division of the Company for which I provide services, whether by purchase,\nmerger, or other similar corporate transaction, provided that the license granted pursuant to Section 2(a) may be\nassigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my\nemployment with the Company and/or the assignment of this Non-Interference Agreement by the Company to any\nsuccessor in interest or other assignee.\nA-8\n***\n[Signature to appear on the following page.]\nA-9\nI, Edward R. Bloomberg, have executed this Confidentiality, Non-Interference, and Invention Assignment\nAgreement on the date set forth below:\nDate:\n(Signature)\n(Type/Print Name)\n[Signature Page to Edward R. Bloomberg Non-Interference Agreement]
d789f0680308f0638a05078c5d896b7a.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 14 dex99d3.htm BUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGRMNT\n[LOGO]\nBUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated and effective as of September 17, 2001 (the “Effective Date”), by and between\nBorland Software Corporation, a Delaware corporation, (“BORLAND”) and Starbase Corporation, a Delaware corporation (“Company”).\nRECITALS\nA. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, BORLAND and Company may disclose\nvaluable proprietary information to each other relating to their respective operations and business.\nB. BORLAND and Company would like to protect the confidentiality of, maintain their respective rights in and prevent the unauthorized use and\ndisclosure of; such information.\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO, INTENDING TO BE LEGALLY BOUND HEREBY AGREE\nAS FOLLOWS:\n1. Confidential Information. As used in this Agreement, “Confidential Information” means all information of either party that is not\ngenerally known to the public, whether of a technical, business or other nature, in tangible or intangible form, including, without limitation,\ninformation, data, records, plans, concepts and matters relating to customers and vendors, agreements, business records including, without\nlimitation, business records relating to intellectual property, marketing and sales plans, pricing and other business strategies (whether or not\nimplemented); research and development plans or projects; computer materials such as programs, instructions and printouts; software\nincluding, without limitation, any source codes, object codes, algorithms and other engineering information; formulas; business improvements\nand processes; information regarding the skills and compensation of executives; intellectual property rights and strategies including, without\nlimitation, any work on patents, trademarks, tradenames or universal resource locators, prior to any filing or the use thereof in commerce;\nfinancing terms and strategies; in each case together with all reports, summaries, studies, notes, compilations, analyses and other\ndocumentation which contain or otherwise reflect or are generated from any of the foregoing, and in each case regardless of the media in\nwhich the information is maintained, that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is\notherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the\npremises of, the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the\ncircumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential. Confidential Information also includes\nall information concerning the existence and progress of the parties’ dealings and the identity of BORLAND employees, customers, vendors\nand/or strategic partners.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not\ndisclose Confidential Information to anyone without the Disclosing Party’s prior written consent. The Receiving Party agrees to use reasonable\ncare, but in no event no less than the same degree of care that it uses to protect its own confidential and proprietary information of similar\nimportance, to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information. The Receiving Party will\nrefrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by the\nDisclosing Party under the terms of this Agreement, except as expressly permitted by applicable law. In addition, the Receiving Party will not\nuse, or permit others to use, Confidential Information for any purpose other than the sole purpose described in Exhibit “A” attached hereto and\nmade a part hereof.\nAll Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party will not file any copyright\nregistrations, patent, or trademark applications or similar registrations of ownership on the Disclosing Party’s Confidential Information. In the\nevent the Receiving Party does so in violation of this Agreement, the Receiving Party will assign to the Disclosing Party such registrations and\napplications. Subject to the Receiving Party’s patents, trademarks and copyrights, the Disclosing Party is free to\nuse and incorporate in the Disclosing Party’s products any ideas, suggestions or recommendations provided by the Receiving Party regarding\nthe Disclosing Party’s Confidential Information, without payment of royalties or other consideration to the Receiving Party.\n3. Exceptions.\n“Confidential Information” shall not include any information that (i) is or subsequently becomes publicly available\nwithout breach of this Agreement by the Receiving Party or any other party that is subject to a nondisclosure agreement with the Disclosing\nParty; (ii) can be shown by documentation to have been known to the Receiving Party prior to its receipt from the Disclosing Party and which\nwas not received by a party that is subject to a non-disclosure agreement with the Disclosing Party; (iii) is received by the Receiving Party\nfrom a third party who did not acquire or disclose such information in breach of a nondisclosure agreement with the Disclosing Party or other\nwrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the Receiving Party without\nreference to any Confidential Information.\n4. Non-disclosure of Negotiations. Except as permitted by this Agreement and except as expressly permitted by a definitive written\nagreement, or as required by applicable law or regulation or the rules of the Nasdaq Stock Market, if any, entered into by Company and\nBORLAND with respect to a transaction (the “Definitive Transaction Agreement”), neither Company or its Representatives (as defined\nbelow), on the one hand, nor BORLAND or its Representatives, on the other hand, will disclose to any person (who is not a Representative of\nCompany or BORLAND) the fact that any Confidential Information has been made available to either party or any of the party’s\nRepresentatives. Except with the prior written consent of the other party hereto and except as expressly permitted by a Definitive Transaction\nAgreement, if any, entered into between Company and BORLAND, neither Company or its Representatives, on the one hand, nor BORLAND\nor its Representatives, on the other hand, will disclose the fact that any discussions or negotiations are taking place concerning a possible\ntransaction, including, without limitation, the status of such discussions or negotiations.\n5. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information by\nany governmental entity with competent jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice to allow\nthe Disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the\ninformation to be so disclosed and a copy of the order. The Receiving Party will disclose only such information as is legally required and will\nuse its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n6. Compliance Exportation/Transmission of Confidential Information. The Receiving Party certifies that no Confidential\nInformation, or any portion thereof, will be exported to any country in violation of the United States Export Administration Laws and\nRegulations thereunder, or any other applicable export control laws or regulations as they currently exist and as they may be amended from\ntime to time.\n7. Receiving Party Personnel. The Receiving Party will restrict the possession, knowledge, development and use of Confidential\nInformation to its employees, agents, subcontractors and entities controlled by or controlling it (collectively, “Personnel”) who have a\nreasonable need to know the Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party’s Personnel\nwill have access only to the Confidential Information they reasonably need for such purposes. The Receiving Party will ensure that its\nPersonnel comply with this Agreement and will promptly notify the Disclosing Party of any unauthorized use or disclosure of confidential\nInformation or any other breach of this Agreement. The Receiving Party will cooperate with the Disclosing Party in every reasonable way to\nhelp the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\n8. Return of Confidential Information. Within ten (10) business days of receipt of the Disclosing Party’s written request, and at the\nDisclosing Party’s sole discretion, the Receiving Party will either return to the Disclosing Party all tangible Confidential Information, including\nbut not limited to all computer programs, documentation, notes, plans, drawings and copies thereof, or will provide the Disclosing Party with\nwritten certification that all such tangible Confidential Information has been destroyed.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly,\nnothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for it\nproducts, concepts, systems or techniques that are similar to or compete with the products, concepts,\n2\nsystems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of\nits obligations under this Agreement in connection with such development.\n10. Authority of the Parties to Enter into this Agreement. Each of Company and BORLAND represents and warrants to the other\nparty as follows: (a) that it has the corporate power and authority to enter into this Agreement and to perform its obligations hereunder; (b) its\nexecution, delivery and performance of this Agreement has been duly authorized in accordance with all corporate power and authority; and (c)\nthis Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability\nmay be limited by applicable bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditor’s rights generally\nand by general equitable principles.\n11. No Warranty. The Disclosing Party warrants that it has the right to disclose the Confidential Information to the Receiving Party.\nOTHERWISE, ALL INFORMATION IS PROVIDED ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL\nIMPLIED WARRANTIES OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO\nEVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL\nDAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE\nCONFIDENTIAL INFORMATION.\n12. Contact Person; Non-Solicitation. Until the earlier to occur of (i) the execution by the parties of the Definitive Transaction\nAgreement; or (ii) one (1) year from the date of termination of active negotiations that arose pursuant to this Agreement, each of Company and\nBORLAND agrees not to initiate or maintain contact (except for those contacts made in the ordinary course of business) with any officer,\ndirector, employee, Representative or agent of the other party hereto or any of its subsidiaries regarding its business, assets, operations,\nprospects or finances, except with the prior written consent of the other party hereto. It is understood that officers of each of Company and\nBORLAND will arrange for appropriate designated contact persons at each entity for purposes of facilitating the due diligence process. It is\nfurther understood that all (i) communications regarding the possible transaction, (ii) requests for additional information, (iii) requests for\nmeetings with officers or directors of each of Company and BORLAND and its subsidiaries and (iv) discussions or questions regarding\nprocedures will be submitted or directed to the designated contact person at Company or BORLAND, as the case may be.\nWithout the prior written consent of the other party hereto, neither Company nor BORLAND, as the case may be, for a period\ncommencing on the date of this agreement and terminating one (1) year after the date of the cessation of negotiations between Company and\nBORLAND regarding a possible transaction, shall hire any person who is now or any time during such period was, a senior management or\nkey employee of the other party hereto who was involved in the negotiation and/or exchange of information between the Company and\nBORLAND.\n14. Additional Terms.\n(a) The parties hereby acknowledge that they are aware, and that they will advise their Representatives (as defined below) who are\ninformed as to the matters which are the subject of this Agreement, that the United States securities laws may prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. As used in this Agreement, the term “Representatives” means, as to\nany person, such person’s affiliates and its and their directors, officers, employees, partners, subsidiaries, affiliates, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, bankers, appraisers and financial advisors), controlling persons, potential financing\nsources or other representatives. The term “person” as used in this Agreement shall be broadly interpreted to include any corporation, limited\nliability company, partnership, group, individual or other entity (including the media).\n(b) The parties acknowledge and agree that each party reserves the right, in its sole discretion, (i) to reject any and all proposals made by\nthe other party or any of its Representatives with regard to any potential transaction between or involving both parties and (ii) to terminate\ndiscussions and negotiations with the other party at any time and return all Confidential Information.\n(c) Both parties understand and agree that no contract or agreement providing for any transaction shall be deemed to exist between the\nparties unless and until a definitive agreement has been executed and delivered by the parties.\n3\n15. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this\nAgreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate\nremedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement without posting any security bond, or by posting bond at the lowest amount required by\nlaw.\n16. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity\nof any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the\nother party for any purpose, and neither will have the authority to bind the other.\n17. Cumulative Obligations. Each party’s obligations hereunder are in addition to, and not exclusive of, any and all of its other\nobligations and duties to the other party, whether express, implied, in fact or in law.\n18. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties relating to the matters\ndiscussed herein and supersedes all prior or contemporaneous oral and written understandings, agreements and arrangements with respect to\nany information disclosed or received under this Agreement. This Agreement may be amended or modified only with the mutual written\nconsent of the parties.\n19. Assignment. This Agreement is not assignable by either party without the prior written consent of the other party; provided that\nBORLAND or the Company, respectively, may assign this Agreement to any successor to all or substantially all of its business or assets. Any\nattempted assignment without such consent shall be ab initio null and void and of no force or effect. This agreement shall be binding upon and\ninure to the benefit of the parties hereto and their respective successors and permitted assigns. This agreement may not be amended, modified,\naltered or waived, except by an instrument in writing signed by each of Company and BORLAND.\n20. Term and Termination. This Agreement is intended to cover Confidential Information disclosed or received by either party prior\nor subsequent to the date of this Agreement. Unless otherwise earlier terminated, this Agreement automatically will expire three (3) years from\nthe date first written above; provided, however, that each party’s obligations with respect to the other party’s Confidential Information\ndisclosed or received prior to termination or expiration will survive for two (2) additional years following the expiration or termination of this\nAgreement.\nEither party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All\nsections of this Agreement relating to the rights and obligations of the parties concerning confidential Information disclosed during the term of\nthe Agreement shall survive any such termination.\n21. Nonwaiver. Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.\n22. Attorney Fees. In the event any court action is commenced by one party against the other, the substantially prevailing party is\nentitled to recover its out-of-pocket and court costs and reasonable attorneys’ fees. The cost of in-house legal staff will be valued at market\nrates for comparable services from private practitioners.\n23. Governing Law. This Agreement will be construed in accordance with and governed by the laws of the State of California and the\nUnited States of America that would be applied to contracts entered into between California residents to be performed entirely within\nCalifornia without regard to the conflicts or choice of law rules of such state or of any other jurisdiction.\n24. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other\nprovision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be\ndeemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all\nterms or conditions to give them such effect.\n25. Jurisdiction; Waiver of Jury Trial Each of the parties hereto irrevocably agrees that any action, suit, claim or other legal\nproceeding with respect to this Agreement shall be brought and determined in any court located in the County of Santa Clara in the State of\nCalifornia or of the State of California located in the County of Santa Clara (or any appeals courts thereof). The parties hereby submit to\npersonal jurisdiction and venue in connection with any action brought to enforce or arising out of this Agreement in the County of Santa Clara,\nState of California or the Northern District of California. Each party hereby waives its right to a jury trial for any claims that may arise out of\nthis Agreement.\n4\n26. Service of Process. The parties agree that the delivery of process or other papers in connection with any such action or proceeding\nin the manner provided in Section 21 hereof, or in such other manner as may be permitted by applicable law, shall be valid and sufficient\nservice thereof.\n27. Notices. All notices, requests and other communications provided for in this Agreement shall be in writing, and shall be deemed to\nhave been duly given (a) on the date of delivery when delivered in person, including a courier service, (b) upon receipt if delivered by certified\nmail, return receipt requested, postage prepaid, or (c) upon receipt if sent by facsimile transmission, provided that any notice received by\ntelecopy or otherwise at the addressee’s location on any business day after 5:00 p.m . (addressee’s local time) shall be deemed to have been\nreceived at 9:00 a.m. (addressee’s local time) on the next business day. Either party to this Agreement may notify the other party of any\nchanges to the address or any of the other details specified in this paragraph, provided that such notification shall only be effective on the date\nspecified in such notice or five (5) business days after the notice is given, whichever is later. Rejection or other refusal to accept or the inability\nto deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection,\nrefusal or inability to deliver. All notices hereunder shall be delivered or faxed, as the case may be, to the addresses and/or facsimile numbers\nset forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice.\n28. Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed to be an original, and all of which together shall constitute one and the same document, and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other parties. This Agreement may be executed by facsimile\nsignatures.\nThe parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representation or promise not\nexpressly contained herein.\n[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nUnderstood and Agreed to by the duly authorized representatives of the parties as evidenced by their respective signatures below. The parties\nhave executed this Agreement as of the date first written above.\nBORLAND SOFTWARE CORPORATION\nBy:\n/s/ DOUG BARRE\nPrint Name:\nDoug Barre\nTitle:\nCOO\nDate:\nSept 17/01\nMailing Address:\n100 Enterprise Way\nScotts Valley, CA 95066-3249\nPhone: 831-431 -1000\nFacsimile: 831-431-4171, Legal Department\nName of Company: Starbase Corporation\nBy:\n/s/ WILLIAM R. STOW III\nPrint Name:\nWilliam R. Stow III\nTitle:\nCEO\nDate:\n9-14-2001\nMailing Address:\n4 Hutton Centre, Suite 800\nSanta Ana, CA 92707\nAttention: Mr. William R. Stow, III\nPresident and Chief Operating Officer\nPhone:\nFacsimile: 714-445-4404\n6\nEXHIBIT A\nSubject to the terms and conditions of the Agreement, the Receiving Party may use the Confidential Information solely for the purpose of\nevaluating the following contemplated business opportunity or transaction with the Disclosing Party:\nDiscussions regarding potential strategic business transaction.	EX-99.(D)(3) 14 dex99d3.htm BUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGRMNT\n[LOGO]\nBUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement™) is dated and effective as of September 17, 2001 (the “Effective Date”), by and between\nBorland Software Corporation, a Delaware corporation, (“BORLAND”) and Starbase Corporation, a Delaware corporation (“Company”).\nRECITALS\nA. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, BORLAND and Company may disclose\nvaluable proprietary information to each other relating to their respective operations and business.\nB. BORLAND and Company would like to protect the confidentiality of, maintain their respective rights in and prevent the unauthorized use and disclosure of; such information.\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO, INTENDING TO BE LEGALLY BOUND HEREBY AGREE\nAS FOLLOWS:\n1. Confidential Information. As used in this Agreement, “Confidential Information” means all information of either party that is not generally known to the public, whether of a technical, business or other nature, in tangible or intangible form, including, without limitation,\ninformation, data, records, plans, concepts and matters relating to customers and vendors, agreements, business records including, without\nlimitation, business records relating to intellectual property, marketing and sales plans, pricing and other business strategies (whether or not\nimplemented); research and development plans or projects; computer materials such as programs, instructions and printouts; software\nincluding, without limitation, any source codes, object codes, algorithms and other engineering information; formulas; business improvements and processes; information regarding the skills and compensation of executives; intellectual property rights and strategies including, without\nlimitation, any work on patents, trademarks, tradenames or universal resource locators, prior to any filing or the use thereof in commerce;\nfinancing terms and strategies; in each case together with all reports, summaries, studies, notes, compilations, analyses and other\ndocumentation which contain or otherwise reflect or are generated from any of the foregoing, and in each case regardless of the media in\nwhich the information is maintained, that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is otherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the\npremises of, the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the\ncircumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential. Confidential Information also includes all information concerning the existence and progress of the parties’ dealings and the identity of BORLAND employees, customers, vendors\nand/or strategic partners.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not\ndisclose Confidential Information to anyone without the Disclosing Party’s prior written consent. The Receiving Party agrees to use reasonable care, but in no event no less than the same degree of care that it uses to protect its own confidential and proprietary information of similar\nimportance, to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information. The Receiving Party will\nrefrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by the\nDisclosing Party under the terms of this Agreement, except as expressly permitted by applicable law. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other than the sole purpose described in Exhibit “A” attached hereto and made a part hereof.\nAll Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party will not file any copyright\nregistrations, patent, or trademark applications or similar registrations of ownership on the Disclosing Party’s Confidential Information. In the event the Receiving Party does so in violation of this Agreement, the Receiving Party will assign to the Disclosing Party such registrations and applications. Subject to the Receiving Party’s patents, trademarks and copyrights, the Disclosing Party is free to\nuse and incorporate in the Disclosing Party’s products any ideas, suggestions or recommendations provided by the Receiving Party regarding\nthe Disclosing Party’s Confidential Information, without payment of royalties or other consideration to the Receiving Party.\n3. Exceptions. “Confidential Information” shall not include any information that (i) is or subsequently becomes publicly available\nwithout breach of this Agreement by the Receiving Party or any other party that is subject to a nondisclosure agreement with the Disclosing\nParty; (ii) can be shown by documentation to have been known to the Receiving Party prior to its receipt from the Disclosing Party and which\nwas not received by a party that is subject to a non-disclosure agreement with the Disclosing Party; (iii) is received by the Receiving Party\nfrom a third party who did not acquire or disclose such information in breach of a nondisclosure agreement with the Disclosing Party or other\nwrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the Receiving Party without\nreference to any Confidential Information.\n4. Non-disclosure of Negotiations. Except as permitted by this Agreement and except as expressly permitted by a definitive written\nagreement, or as required by applicable law or regulation or the rules of the Nasdaq Stock Market, if any, entered into by Company and\nBORLAND with respect to a transaction (the “Definitive Transaction Agreement”), neither Company or its Representatives (as defined\nbelow), on the one hand, nor BORLAND or its Representatives, on the other hand, will disclose to any person (who is not a Representative of\nCompany or BORLAND) the fact that any Confidential Information has been made available to either party or any of the party’s\nRepresentatives. Except with the prior written consent of the other party hereto and except as expressly permitted by a Definitive Transaction\nAgreement, if any, entered into between Company and BORLAND, neither Company or its Representatives, on the one hand, nor BORLAND\nor its Representatives, on the other hand, will disclose the fact that any discussions or negotiations are taking place concerning a possible\ntransaction, including, without limitation, the status of such discussions or negotiations.\n5. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information by\nany governmental entity with competent jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice to allow\nthe Disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the\ninformation to be so disclosed and a copy of the order. The Receiving Party will disclose only such information as is legally required and will\nuse its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n6. Compliance Exportation/Transmission of Confidential Information. The Receiving Party certifies that no Confidential\nInformation, or any portion thereof, will be exported to any country in violation of the United States Export Administration Laws and\nRegulations thereunder, or any other applicable export control laws or regulations as they currently exist and as they may be amended from\ntime to time.\n7. Receiving Party Personnel. The Receiving Party will restrict the possession, knowledge, development and use of Confidential\nInformation to its employees, agents, subcontractors and entities controlled by or controlling it (collectively, “Personnel”) who have a\nreasonable need to know the Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party’s Personnel\nwill have access only to the Confidential Information they reasonably need for such purposes. The Receiving Party will ensure that its\nPersonnel comply with this Agreement and will promptly notify the Disclosing Party of any unauthorized use or disclosure of confidential\nInformation or any other breach of this Agreement. The Receiving Party will cooperate with the Disclosing Party in every reasonable way to\nhelp the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\n8. Return of Confidential Information. Within ten (10) business days of receipt of the Disclosing Party’s written request, and at the\nDisclosing Party’s sole discretion, the Receiving Party will either return to the Disclosing Party all tangible Confidential Information, including\nbut not limited to all computer programs, documentation, notes, plans, drawings and copies thereof, or will provide the Disclosing Party with\nwritten certification that all such tangible Confidential Information has been destroyed.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly,\nnothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for it\nproducts, concepts, systems or techniques that are similar to or compete with the products, concepts,\n2\nsystems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of\nits obligations under this Agreement in connection with such development.\n10. Authority of the Parties to Enter into this Agreement. Each of Company and BORLAND represents and warrants to the other\nparty as follows: (a) that it has the corporate power and authority to enter into this Agreement and to perform its obligations hereunder; (b) its\nexecution, delivery and performance of this Agreement has been duly authorized in accordance with all corporate power and authority; and (c)\nthis Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability\nmay be limited by applicable bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditor’s rights generally\nand by general equitable principles.\n11. No Warranty. The Disclosing Party warrants that it has the right to disclose the Confidential Information to the Receiving Party.\nOTHERWISE, ALL INFORMATION IS PROVIDED ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL\nIMPLIED WARRANTIES OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO\nEVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL\nDAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE\nCONFIDENTIAL INFORMATION.\n12. Contact Person; Non-Solicitation. Until the earlier to occur of (i) the execution by the parties of the Definitive Transaction\nAgreement; or (ii) one (1) year from the date of termination of active negotiations that arose pursuant to this Agreement, each of Company and\nBORLAND agrees not to initiate or maintain contact (except for those contacts made in the ordinary course of business) with any officer,\ndirector, employee, Representative or agent of the other party hereto or any of its subsidiaries regarding its business, assets, operations,\nprospects or finances, except with the prior written consent of the other party hereto. It is understood that officers of each of Company and\nBORLAND will arrange for appropriate designated contact persons at each entity for purposes of facilitating the due diligence process. It is\nfurther understood that all (i) communications regarding the possible transaction, (ii) requests for additional information, (iii) requests for\nmeetings with officers or directors of each of Company and BORLAND and its subsidiaries and (iv) discussions or questions regarding\nprocedures will be submitted or directed to the designated contact person at Company or BORLAND, as the case may be.\nWithout the prior written consent of the other party hereto, neither Company nor BORLAND, as the case may be, for a period\ncommencing on the date of this agreement and terminating one (1) year after the date of the cessation of negotiations between Company and\nBORLAND regarding a possible transaction, shall hire any person who is now or any time during such period was, a senior management or\nkey employee of the other party hereto who was involved in the negotiation and/or exchange of information between the Company and\nBORLAND.\n14. Additional Terms.\n(@) The parties hereby acknowledge that they are aware, and that they will advise their Representatives (as defined below) who are\ninformed as to the matters which are the subject of this Agreement, that the United States securities laws may prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. As used in this Agreement, the term “Representatives” means, as to\nany person, such person’s affiliates and its and their directors, officers, employees, partners, subsidiaries, affiliates, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, bankers, appraisers and financial advisors), controlling persons, potential financing\nsources or other representatives. The term “person” as used in this Agreement shall be broadly interpreted to include any corporation, limited\nliability company, partnership, group, individual or other entity (including the media).\n(b) The parties acknowledge and agree that each party reserves the right, in its sole discretion, (i) to reject any and all proposals made by\nthe other party or any of its Representatives with regard to any potential transaction between or involving both parties and (ii) to terminate\ndiscussions and negotiations with the other party at any time and return all Confidential Information.\n(c) Both parties understand and agree that no contract or agreement providing for any transaction shall be deemed to exist between the\nparties unless and until a definitive agreement has been executed and delivered by the parties.\n3\n15. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this\nAgreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate\nremedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement without posting any security bond, or by posting bond at the lowest amount required by\nlaw.\n16. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity\nof any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the\nother party for any purpose, and neither will have the authority to bind the other.\n17. Cumulative Obligations. Each party’s obligations hereunder are in addition to, and not exclusive of, any and all of its other\nobligations and duties to the other party, whether express, implied, in fact or in law.\n18. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties relating to the matters\ndiscussed herein and supersedes all prior or contemporaneous oral and written understandings, agreements and arrangements with respect to\nany information disclosed or received under this Agreement. This Agreement may be amended or modified only with the mutual written\nconsent of the parties.\n19. Assignment. This Agreement is not assignable by either party without the prior written consent of the other party; provided that\nBORLAND or the Company, respectively, may assign this Agreement to any successor to all or substantially all of its business or assets. Any\nattempted assignment without such consent shall be ab initio null and void and of no force or effect. This agreement shall be binding upon and\ninure to the benefit of the parties hereto and their respective successors and permitted assigns. This agreement may not be amended, modified,\naltered or waived, except by an instrument in writing signed by each of Company and BORLAND.\n20. Term and Termination. This Agreement is intended to cover Confidential Information disclosed or received by either party prior\nor subsequent to the date of this Agreement. Unless otherwise earlier terminated, this Agreement automatically will expire three (3) years from\nthe date first written above; provided, however, that each party’s obligations with respect to the other party’s Confidential Information\ndisclosed or received prior to termination or expiration will survive for two (2) additional years following the expiration or termination of this\nAgreement.\nEither party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All\nsections of this Agreement relating to the rights and obligations of the parties concerning confidential Information disclosed during the term of\nthe Agreement shall survive any such termination.\n21. Nonwaiver. Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.\n22. Attorney Fees. In the event any court action is commenced by one party against the other, the substantially prevailing party is\nentitled to recover its out-of-pocket and court costs and reasonable attorneys’ fees. The cost of in-house legal staff will be valued at market\nrates for comparable services from private practitioners.\n23. Governing Law. This Agreement will be construed in accordance with and governed by the laws of the State of California and the\nUnited States of America that would be applied to contracts entered into between California residents to be performed entirely within\nCalifornia without regard to the conflicts or choice of law rules of such state or of any other jurisdiction.\n24. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other\nprovision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be\ndeemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all\nterms or conditions to give them such effect.\n25. Jurisdiction; Waiver of Jury Trial Each of the parties hereto irrevocably agrees that any action, suit, claim or other legal\nproceeding with respect to this Agreement shall be brought and determined in any court located in the County of Santa Clara in the State of\nCalifornia or of the State of California located in the County of Santa Clara (or any appeals courts thereof). The parties hereby submit to\npersonal jurisdiction and venue in connection with any action brought to enforce or arising out of this Agreement in the County of Santa Clara,\nState of California or the Northern District of California. Each party hereby waives its right to a jury trial for any claims that may arise out of\nthis Agreement.\n26. Service of Process. The parties agree that the delivery of process or other papers in connection with any such action or proceeding\nin the manner provided in Section 21 hereof, or in such other manner as may be permitted by applicable law, shall be valid and sufficient\nservice thereof.\n27. Notices. All notices, requests and other communications provided for in this Agreement shall be in writing, and shall be deemed to\nhave been duly given (a) on the date of delivery when delivered in person, including a courier service, (b) upon receipt if delivered by certified\nmail, return receipt requested, postage prepaid, or (c) upon receipt if sent by facsimile transmission, provided that any notice received by\ntelecopy or otherwise at the addressee’s location on any business day after 5:00 p.m. (addressee’s local time) shall be deemed to have been\nreceived at 9:00 a.m. (addressee’s local time) on the next business day. Either party to this Agreement may notify the other party of any\nchanges to the address or any of the other details specified in this paragraph, provided that such notification shall only be effective on the date\nspecified in such notice or five (5) business days after the notice is given, whichever is later. Rejection or other refusal to accept or the inability\nto deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection,\nrefusal or inability to deliver. All notices hereunder shall be delivered or faxed, as the case may be, to the addresses and/or facsimile numbers\nset forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice.\n28. Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed to be an original, and all of which together shall constitute one and the same document, and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other parties. This Agreement may be executed by facsimile\nsignatures.\nThe parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representation or promise not\nexpressly contained herein.\n[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\nUnderstood and Agreed to by the duly authorized representatives of the parties as evidenced by their respective signatures below. The parties\nhave executed this Agreement as of the date first written above.\nBORLAND SOFTWARE CORPORATION\nBy: /s/ DOUG BARRE\nPrint Name: Doug Barre\nTitle: CcOoO\nDate: Sept 17/01\nMailing Address:\n100 Enterprise Way\nScotts Valley, CA 95066-3249\nPhone: 831-431-1000\nFacsimile: 831-431-4171, Legal Department\nName of Company: Starbase Corporation\nBy: /s/ WILLIAM R. STOW III\nPrint Name: William R. Stow III\nTitle: CEO\nDate: 9-14-2001\nMailing Address:\n4 Hutton Centre, Suite 800\nSanta Ana, CA 92707\nAttention:  Mr. William R. Stow, III\nPresident and Chief Operating Officer\nPhone:\nFacsimile: 714-445-4404\nEXHIBIT A\nSubject to the terms and conditions of the Agreement, the Receiving Party may use the Confidential Information solely for the purpose of\nevaluating the following contemplated business opportunity or transaction with the Disclosing Party:\nDiscussions regarding potential strategic business transaction.	EX-99.(D)(3) 14 dex99d3.htm BUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGRMNT\n[LOGO]\nBUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this "Agreement") is dated and effective as of September 17, 2001 (the "Effective Date") by and between\nBorland Software Corporation, a Delaware corporation, ("BORLAND") and Starbase Corporation, a Delaware corporation ("Company").\nRECITALS\nA.\nIn connection with the evaluation or pursuit of certain mutually beneficial business opportunities, BORLAND and Company may disclose\nvaluable proprietary information to each other relating to their respective operations and business.\nB.\nBORLAND and Company would like to protect the confidentiality of, maintain their respective rights in and prevent the unauthorized use and\ndisclosure of; such information.\nIN\nCONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO, INTENDING TO BE LEGALLY BOUND HEREBY AGREE\nAS FOLLOWS:\n1. Confidential Information. As used in this Agreement, "Confidential Information" means all information of either party that is not\ngenerally known to the public, whether of a technical, business or other nature, in tangible or intangible form, including, without limitation,\ninformation, data, records, plans, concepts and matters relating to customers and vendors, agreements, business records including, without\nlimitation, business records relating to intellectual property, marketing and sales plans, pricing and other business strategies (whether or not\nimplemented); research and development plans or projects; computer materials such as programs, instructions and printouts; software\nincluding, without limitation, any source codes, object codes, algorithms and other engineering information; formulas; business improvements\nand processes; information regarding the skills and compensation of executives; intellectual property rights and strategies including, without\nlimitation, any work on patents, trademarks, tradenames or universal resource locators, prior to any filing or the use thereof in commerce;\nfinancing terms and strategies; in each case together with all reports, summaries, studies, notes, compilations, analyses and other\ndocumentation which contain or otherwise reflect or are generated from any of the foregoing, and in each case regardless of the media in\nwhich the information is maintained, that is disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") or that is\notherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the\npremises of, the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the\ncircumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential. Confidential Information also includes\nall information concerning the existence and progress of the parties' dealings and the identity of BORLAND employees, customers, vendors\nand/or strategic partners.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not\ndisclose Confidential Information to anyone without the Disclosing Party's prior written consent. The Receiving Party agrees to use reasonable\ncare, but in no event no less than the same degree of care that it uses to protect its own confidential and proprietary information of similar\nimportance, to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information. The Receiving Party will\nrefrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by the\nDisclosing Party under the terms of this Agreement, except as expressly permitted by applicable law. In addition, the Receiving Party\nwill\nnot\nuse, or permit others to use, Confidentia Information for any purpose other than the sole purpose described in Exhibit "A" attached hereto and\nmade a part hereof.\nAll Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party will not file any copyright\nregistrations, patent, or trademark applications or similar registrations of ownership on the Disclosing Party's Confidential Information.\nIn\nthe\nevent the Receiving Party does so in violation of this Agreement, the Receiving Party will assign to the Disclosing Party such registrations and\napplications. Subject to the Receiving Party's patents, trademarks and copyrights, the Disclosing Party is free to\nuse and incorporate in the Disclosing Party's products any ideas, suggestions or recommendations provided by the Receiving Party regarding\nthe Disclosing Party's Confidential Information, without payment of royalties or other consideration to the Receiving Party.\n3. Exceptions. "Confidential Information" shall not include any information that (i) is or subsequently becomes publicly available\nwithout breach of this Agreement by the Receiving Party or any other party that is subject to a nondisclosure agreement with the Disclosing\nParty; (ii) can be shown by documentation to have been known to the Receiving Party prior to its receipt from the Disclosing Party and which\nwas not received by a party that is subject to a non-disclosure agreement with the Disclosing Party; (iii) is received by the Receiving Party\nfrom a third party who did not acquire or disclose such information in breach of a nondisclosure agreement with the Disclosing Party or other\nwrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the Receiving Party without\nreference to any Confidential Information.\n4. Non-disclosure of Negotiations. Except as permitted by this Agreement and except as expressly permitted by a definitive written\nagreement, or as required by applicable law or regulation or the rules of the Nasdaq Stock Market, if any, entered into by Company and\nBORLAND\nwith\nrespect\nto\na\ntransaction\n(the\n"Definitive\nTransaction\nAgreement"),\nneither\nCompany\nor\nits\nRepresentatives\n(as\ndefined\nbelow), on the one hand, nor BORLAND or its Representatives, on the other hand, will disclose to any person (who is not a Representative of\nCompany or BORLAND) the fact that any Confidentia Information has been made available to either party or any of the party's\nRepresentatives. Except with the prior written consent of the other party hereto and except as expressly permitted by a Definitive Transaction\nAgreement, if any, entered into between Company and BORLAND, neither Company or its Representatives, on the one hand, nor BORLAND\nor its Representatives, on the other hand, will disclose the fact that any discussions or negotiations are taking place concerning a possible\ntransaction, including, without limitation, the status of such discussions or negotiations.\n5. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information by\nany governmenta entity with competent jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice to allow\nthe Disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the\ninformation to be so disclosed and a copy of the order. The Receiving Party will disclose only such information as is legally required and will\nuse its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n6. Compliance Exportation/Transmission of Confidential Information. The Receiving Party certifies that no Confidential\nInformation, or any portion thereof, will be exported to any country in violation of the United States Export Administration Laws and\nRegulations thereunder, or any other applicable export control laws or regulations as they currently exist and as they may be amended from\ntime to time.\n7. Receiving Party Personnel. The Receiving Party will restrict the possession, knowledge, development and use of Confidentia\nInformation to its employees, agents, subcontractors and entities controlled by or controlling it (collectively, "Personnel") who have a\nreasonable need to know the Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party's Personnel\nwill have access only to the Confidential Information they reasonably need for such purposes. The Receiving Party will ensure that its\nPersonnel comply with this Agreement and will promptly notify the Disclosing Party of any unauthorized use or disclosure of confidential\nInformation or any other breach of this Agreement. The Receiving Party will cooperate with the Disclosing Party in every reasonable way to\nhelp the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\n8. Return of Confidential Information. Within ten (10) business days of receipt of the Disclosing Party's written request, and at the\nDisclosing Party's sole discretion, the Receiving Party will either return to the Disclosing Party all tangible Confidential Information, including\nbut not limited to all computer programs, documentation, notes, plans, drawings and copies thereof, or will provide the Disclosing Party with\nwritten certification that all such tangible Confidential Information has been destroyed.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly,\nnothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for it\nproducts, concepts, systems or techniques that are similar to or compete with the products, concepts,\n2\nsystems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of\nits obligations under this Agreement in connection with such development.\n10. Authority of the Parties to Enter into this Agreement. Each of Company and BORLAND represents and warrants to the other\nparty as follows: (a) that it has the corporate power and authority to enter into this Agreement and to perform its obligations hereunder; (b) its\nexecution, delivery and performance of this Agreement has been duly authorized in accordance with all corporate power and authority; and (c)\nthis Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability\nmay be limited by applicable bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditor's rights generally\nand by general equitable principles.\n11. No Warranty. The Disclosing Party warrants that it has the right to disclose the Confidential Information to the Receiving Party.\nOTHERWISE, ALL INFORMATION IS PROVIDED ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL\nIMPLIED WARRANTIES OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO\nEVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL\nDAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE\nCONFIDENTIAL INFORMATION.\n12. Contact Person; Non-Solicitation. Until the earlier to occur of (i) the execution by the parties of the Definitive Transaction\nAgreement; or (ii) one (1) year from the date of termination of active negotiations that arose pursuant to this Agreement, each of Company and\nBORLAND agrees not to initiate or maintain contact (except for those contacts made in the ordinary course of business) with any officer,\ndirector, employee, Representative or agent of the other party hereto or any of its subsidiaries regarding its business, assets, operations,\nprospects or finances, except with the prior written consent of the other party hereto. It is understood that officers of each of Company and\nBORLAND will arrange for appropriate designated contact persons at each entity for purposes of facilitating the due diligence process. It is\nfurther understood that all (i) communications regarding the possible transaction, (ii) requests for additional information, (iii) requests for\nmeetings with officers or directors of each of Company and BORLAND and its subsidiaries and (iv) discussions or questions regarding\nprocedures will be submitted or directed to the designated contact person at Company or BORLAND, as the case may be.\nWithout the prior written consent of the other party hereto, neither Company nor BORLAND, as the case may be, for a period\ncommencing on the date of this agreement and terminating one (1) year after the date of the cessation of negotiations between Company and\nBORLAND regarding a possible transaction, shall hire any person who is now or any time during such period was, a senior management or\nkey employee of the other party hereto who was involved in the negotiation and/or exchange of information between the Company and\nBORLAND.\n14. Additional Terms.\n(a) The parties hereby acknowledge that they are aware, and that they will advise their Representatives (as defined below) who are\ninformed as to the matters which are the subject of this Agreement, that the United States securities laws may prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. As used in this Agreement, the term "Representatives" means, as to\nany person, such person's affiliates and its and their directors, officers, employees, partners, subsidiaries, affiliates, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, bankers, appraisers and financial advisors), controlling persons, potential financing\nsources or other representatives The term "person" as used in this Agreement shall be broadly interpreted to include any corporation, limited\nliability company, partnership, group, individual or other entity (including the media).\n(b) The parties acknowledge and agree that each party reserves the right, in its sole discretion, (i) to reject any and all proposals made by\nthe other party or any of its Representatives with regard to any potential transaction between or involving both parties and (ii) to terminate\ndiscussions and negotiations with the other party at any time and return all Confidential Information.\n(c) Both parties understand and agree that no contract or agreement providing for any transaction shall be deemed to exist between the\nparties unless and until a definitive agreement has been executed and delivered by the parties.\n3\n15. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this\nAgreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate\nremedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement without posting any security bond, or by posting bond at the lowest amount required by\nlaw.\n16. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity\nof any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the\nother party for any purpose, and neither will have the authority to bind the other.\n17. Cumulative Obligations. Each party's obligations hereunder are in addition to, and not exclusive of, any and all of its other\nobligations and duties to the other party, whether express, implied, in fact or in law.\n18. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties relating to the matters\ndiscussed herein and supersedes all prior or contemporaneous oral and written understandings, agreements and arrangements with respect to\nany information disclosed or received under this Agreement. This Agreement may be amended or modified only with the mutual written\nconsent of the parties.\n19. Assignment. This Agreement is not assignable by either party without the prior written consent of the other party; provided that\nBORLAND or the Company, respectively, may assign this Agreement to any successor to all or substantially all of its business or assets. Any\nattempted assignment without such consent shall be ab initio null and void and of no force or effect. This agreement shall be binding upon and\ninure to the benefit of the parties hereto and their respective successors and permitted assigns. This agreement may not be amended, modified,\naltered or waived, except by an instrument in writing signed by each of Company and BORLAND.\n20. Term and Termination. This Agreement is intended to cover Confidentia Information disclosed or received by either party prior\nor subsequent to the date of this Agreement. Unless otherwise earlier terminated, this Agreement automatically will expire three (3) years from\nthe date first written above; provided, however, that each party's obligations with respect to the other party's Confidential Information\ndisclosed or received prior to termination or expiration will survive for two (2) additional years following the expiration or termination of this\nAgreement.\nEither party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All\nsections of this Agreement relating to the rights and obligations of the parties concerning confidential Information disclosed during the term of\nthe Agreement shall survive any such termination.\n21. Nonwaiver. Any failure by either party to enforce the other party's strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.\n22. Attorney Fees. In the event any court action is commenced by one party against the other, the substantially prevailing party is\nentitled to recover its out-of-pocket and court costs and reasonable attorneys' fees. The cost of in-house legal staff will be valued at market\nrates for comparable services from private practitioners.\n23. Governing Law. This Agreement will be construed in accordance with and governed by the laws of the State of California and the\nUnited States of America that would be applied to contracts entered into between California residents to be performed entirely within\nCalifornia without regard to the conflicts or choice of law rules of such state or of any other jurisdiction.\n24. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other\nprovision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be\ndeemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all\nterms or conditions to give them such effect.\n25. Jurisdiction; Waiver of Jury Trial Each of the parties hereto irrevocably agrees that any action, suit, claim or other legal\nproceeding with respect to this Agreement shall be brought and determined in any court located in the County of Santa Clara in the State of\nCalifornia or of the State of California located in the County of Santa Clara (or any appeals courts thereof). The parties hereby submit to\npersonal jurisdiction and venue in connection with any action brought to enforce or arising out of this Agreement in the County of Santa Clara,\nState of California or the Northern District of California. Each party hereby waives its right to a jury trial for any claims that may arise out of\nthis Agreement.\n4\n26. Service of Process. The parties agree that the delivery of process or other papers in connection with any such action or proceeding\nin the manner provided in Section 21 hereof, or in such other manner as may be permitted by applicable law, shall be valid and sufficient\nservice thereof.\n27. Notices. All notices, requests and other communications provided for in this Agreement shall be in writing, and shall be deemed to\nhave been duly given (a) on the date of delivery when delivered in person, including a courier service, (b) upon receipt if delivered by certified\nmail, return receipt requested, postage prepaid, or (c) upon receipt if sent by facsimile transmission provided that any notice received by\ntelecopy or otherwise at the addressee's location on any business day after 5:00 p.m. (addressee's local time) shall be deemed to have been\nreceived at 9:00 a.m. (addressee's local time) on the next business day. Either party to this Agreement may notify the other party of any\nchanges to the address or any of the other details specified in this paragraph, provided that such notification shall only be effective on the date\nspecified in such notice or five (5) business days after the notice is given, whichever is later. Rejection or other refusal to accept or the inability\nto deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection,\nrefusal or inability to deliver. All notices hereunder shall be delivered or faxed, as the case may be, to the addresses and/or facsimile numbers\nset forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice.\n28. Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed to be an original, and all of which together shall constitute one and the same document, and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other parties. This Agreement may be executed by facsimile\nsignatures.\nThe parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representation or promise not\nexpressly contained herein.\n[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nUnderstood and Agreed to by the duly authorized representatives of the parties as evidenced by their respective signatures below. The\nparties\nhave executed this Agreement as of the date first written above.\nBORLAND SOFTWARE CORPORATION\nBy:\n/s/ Doug BARRE\nPrint Name:\nDoug Barre\nTitle:\nCOO\nDate:\nSept 17/01\nMailing Address:\n100 Enterprise Way\nScotts Valley, CA 95066-3249\nPhone: 831-431-1000\nFacsimile: 831-431-4171, Legal Department\nName of Company: Starbase Corporation\nBy:\n/s/ WILLIAM R. STow III\nPrint Name:\nWilliam R. Stow III\nTitle:\nCEO\nDate:\n9-14-2001\nMailing Address:\n4 Hutton Centre, Suite 800\nSanta Ana, CA 92707\nAttention: Mr. William R. Stow, III\nPresident and Chief Operating Officer\nPhone:\nFacsimile: 714-445-4404\n6\nEXHIBIT A\nSubject to the terms and conditions of the Agreement, the Receiving Party may use the Confidential Information solely for the purpose\nof\nevaluating the following contemplated business opportunity or transaction with the Disclosing Party:\nDiscussions regarding potential strategic business transaction.	EX-99.(D)(3) 14 dex99d3.htm BUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGRMNT\n[LOGO]\nBUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated and effective as of September 17, 2001 (the “Effective Date”), by and between\nBorland Software Corporation, a Delaware corporation, (“BORLAND”) and Starbase Corporation, a Delaware corporation (“Company”).\nRECITALS\nA. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, BORLAND and Company may disclose\nvaluable proprietary information to each other relating to their respective operations and business.\nB. BORLAND and Company would like to protect the confidentiality of, maintain their respective rights in and prevent the unauthorized use and\ndisclosure of; such information.\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO, INTENDING TO BE LEGALLY BOUND HEREBY AGREE\nAS FOLLOWS:\n1. Confidential Information. As used in this Agreement, “Confidential Information” means all information of either party that is not\ngenerally known to the public, whether of a technical, business or other nature, in tangible or intangible form, including, without limitation,\ninformation, data, records, plans, concepts and matters relating to customers and vendors, agreements, business records including, without\nlimitation, business records relating to intellectual property, marketing and sales plans, pricing and other business strategies (whether or not\nimplemented); research and development plans or projects; computer materials such as programs, instructions and printouts; software\nincluding, without limitation, any source codes, object codes, algorithms and other engineering information; formulas; business improvements\nand processes; information regarding the skills and compensation of executives; intellectual property rights and strategies including, without\nlimitation, any work on patents, trademarks, tradenames or universal resource locators, prior to any filing or the use thereof in commerce;\nfinancing terms and strategies; in each case together with all reports, summaries, studies, notes, compilations, analyses and other\ndocumentation which contain or otherwise reflect or are generated from any of the foregoing, and in each case regardless of the media in\nwhich the information is maintained, that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is\notherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the\npremises of, the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the\ncircumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential. Confidential Information also includes\nall information concerning the existence and progress of the parties’ dealings and the identity of BORLAND employees, customers, vendors\nand/or strategic partners.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not\ndisclose Confidential Information to anyone without the Disclosing Party’s prior written consent. The Receiving Party agrees to use reasonable\ncare, but in no event no less than the same degree of care that it uses to protect its own confidential and proprietary information of similar\nimportance, to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information. The Receiving Party will\nrefrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by the\nDisclosing Party under the terms of this Agreement, except as expressly permitted by applicable law. In addition, the Receiving Party will not\nuse, or permit others to use, Confidential Information for any purpose other than the sole purpose described in Exhibit “A” attached hereto and\nmade a part hereof.\nAll Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party will not file any copyright\nregistrations, patent, or trademark applications or similar registrations of ownership on the Disclosing Party’s Confidential Information. In the\nevent the Receiving Party does so in violation of this Agreement, the Receiving Party will assign to the Disclosing Party such registrations and\napplications. Subject to the Receiving Party’s patents, trademarks and copyrights, the Disclosing Party is free to\nuse and incorporate in the Disclosing Party’s products any ideas, suggestions or recommendations provided by the Receiving Party regarding\nthe Disclosing Party’s Confidential Information, without payment of royalties or other consideration to the Receiving Party.\n3. Exceptions.\n“Confidential Information” shall not include any information that (i) is or subsequently becomes publicly available\nwithout breach of this Agreement by the Receiving Party or any other party that is subject to a nondisclosure agreement with the Disclosing\nParty; (ii) can be shown by documentation to have been known to the Receiving Party prior to its receipt from the Disclosing Party and which\nwas not received by a party that is subject to a non-disclosure agreement with the Disclosing Party; (iii) is received by the Receiving Party\nfrom a third party who did not acquire or disclose such information in breach of a nondisclosure agreement with the Disclosing Party or other\nwrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the Receiving Party without\nreference to any Confidential Information.\n4. Non-disclosure of Negotiations. Except as permitted by this Agreement and except as expressly permitted by a definitive written\nagreement, or as required by applicable law or regulation or the rules of the Nasdaq Stock Market, if any, entered into by Company and\nBORLAND with respect to a transaction (the “Definitive Transaction Agreement”), neither Company or its Representatives (as defined\nbelow), on the one hand, nor BORLAND or its Representatives, on the other hand, will disclose to any person (who is not a Representative of\nCompany or BORLAND) the fact that any Confidential Information has been made available to either party or any of the party’s\nRepresentatives. Except with the prior written consent of the other party hereto and except as expressly permitted by a Definitive Transaction\nAgreement, if any, entered into between Company and BORLAND, neither Company or its Representatives, on the one hand, nor BORLAND\nor its Representatives, on the other hand, will disclose the fact that any discussions or negotiations are taking place concerning a possible\ntransaction, including, without limitation, the status of such discussions or negotiations.\n5. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information by\nany governmental entity with competent jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice to allow\nthe Disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the\ninformation to be so disclosed and a copy of the order. The Receiving Party will disclose only such information as is legally required and will\nuse its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n6. Compliance Exportation/Transmission of Confidential Information. The Receiving Party certifies that no Confidential\nInformation, or any portion thereof, will be exported to any country in violation of the United States Export Administration Laws and\nRegulations thereunder, or any other applicable export control laws or regulations as they currently exist and as they may be amended from\ntime to time.\n7. Receiving Party Personnel. The Receiving Party will restrict the possession, knowledge, development and use of Confidential\nInformation to its employees, agents, subcontractors and entities controlled by or controlling it (collectively, “Personnel”) who have a\nreasonable need to know the Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party’s Personnel\nwill have access only to the Confidential Information they reasonably need for such purposes. The Receiving Party will ensure that its\nPersonnel comply with this Agreement and will promptly notify the Disclosing Party of any unauthorized use or disclosure of confidential\nInformation or any other breach of this Agreement. The Receiving Party will cooperate with the Disclosing Party in every reasonable way to\nhelp the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\n8. Return of Confidential Information. Within ten (10) business days of receipt of the Disclosing Party’s written request, and at the\nDisclosing Party’s sole discretion, the Receiving Party will either return to the Disclosing Party all tangible Confidential Information, including\nbut not limited to all computer programs, documentation, notes, plans, drawings and copies thereof, or will provide the Disclosing Party with\nwritten certification that all such tangible Confidential Information has been destroyed.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly,\nnothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for it\nproducts, concepts, systems or techniques that are similar to or compete with the products, concepts,\n2\nsystems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of\nits obligations under this Agreement in connection with such development.\n10. Authority of the Parties to Enter into this Agreement. Each of Company and BORLAND represents and warrants to the other\nparty as follows: (a) that it has the corporate power and authority to enter into this Agreement and to perform its obligations hereunder; (b) its\nexecution, delivery and performance of this Agreement has been duly authorized in accordance with all corporate power and authority; and (c)\nthis Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability\nmay be limited by applicable bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditor’s rights generally\nand by general equitable principles.\n11. No Warranty. The Disclosing Party warrants that it has the right to disclose the Confidential Information to the Receiving Party.\nOTHERWISE, ALL INFORMATION IS PROVIDED ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL\nIMPLIED WARRANTIES OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO\nEVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL\nDAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE\nCONFIDENTIAL INFORMATION.\n12. Contact Person; Non-Solicitation. Until the earlier to occur of (i) the execution by the parties of the Definitive Transaction\nAgreement; or (ii) one (1) year from the date of termination of active negotiations that arose pursuant to this Agreement, each of Company and\nBORLAND agrees not to initiate or maintain contact (except for those contacts made in the ordinary course of business) with any officer,\ndirector, employee, Representative or agent of the other party hereto or any of its subsidiaries regarding its business, assets, operations,\nprospects or finances, except with the prior written consent of the other party hereto. It is understood that officers of each of Company and\nBORLAND will arrange for appropriate designated contact persons at each entity for purposes of facilitating the due diligence process. It is\nfurther understood that all (i) communications regarding the possible transaction, (ii) requests for additional information, (iii) requests for\nmeetings with officers or directors of each of Company and BORLAND and its subsidiaries and (iv) discussions or questions regarding\nprocedures will be submitted or directed to the designated contact person at Company or BORLAND, as the case may be.\nWithout the prior written consent of the other party hereto, neither Company nor BORLAND, as the case may be, for a period\ncommencing on the date of this agreement and terminating one (1) year after the date of the cessation of negotiations between Company and\nBORLAND regarding a possible transaction, shall hire any person who is now or any time during such period was, a senior management or\nkey employee of the other party hereto who was involved in the negotiation and/or exchange of information between the Company and\nBORLAND.\n14. Additional Terms.\n(a) The parties hereby acknowledge that they are aware, and that they will advise their Representatives (as defined below) who are\ninformed as to the matters which are the subject of this Agreement, that the United States securities laws may prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. As used in this Agreement, the term “Representatives” means, as to\nany person, such person’s affiliates and its and their directors, officers, employees, partners, subsidiaries, affiliates, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, bankers, appraisers and financial advisors), controlling persons, potential financing\nsources or other representatives. The term “person” as used in this Agreement shall be broadly interpreted to include any corporation, limited\nliability company, partnership, group, individual or other entity (including the media).\n(b) The parties acknowledge and agree that each party reserves the right, in its sole discretion, (i) to reject any and all proposals made by\nthe other party or any of its Representatives with regard to any potential transaction between or involving both parties and (ii) to terminate\ndiscussions and negotiations with the other party at any time and return all Confidential Information.\n(c) Both parties understand and agree that no contract or agreement providing for any transaction shall be deemed to exist between the\nparties unless and until a definitive agreement has been executed and delivered by the parties.\n3\n15. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this\nAgreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate\nremedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement without posting any security bond, or by posting bond at the lowest amount required by\nlaw.\n16. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity\nof any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the\nother party for any purpose, and neither will have the authority to bind the other.\n17. Cumulative Obligations. Each party’s obligations hereunder are in addition to, and not exclusive of, any and all of its other\nobligations and duties to the other party, whether express, implied, in fact or in law.\n18. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties relating to the matters\ndiscussed herein and supersedes all prior or contemporaneous oral and written understandings, agreements and arrangements with respect to\nany information disclosed or received under this Agreement. This Agreement may be amended or modified only with the mutual written\nconsent of the parties.\n19. Assignment. This Agreement is not assignable by either party without the prior written consent of the other party; provided that\nBORLAND or the Company, respectively, may assign this Agreement to any successor to all or substantially all of its business or assets. Any\nattempted assignment without such consent shall be ab initio null and void and of no force or effect. This agreement shall be binding upon and\ninure to the benefit of the parties hereto and their respective successors and permitted assigns. This agreement may not be amended, modified,\naltered or waived, except by an instrument in writing signed by each of Company and BORLAND.\n20. Term and Termination. This Agreement is intended to cover Confidential Information disclosed or received by either party prior\nor subsequent to the date of this Agreement. Unless otherwise earlier terminated, this Agreement automatically will expire three (3) years from\nthe date first written above; provided, however, that each party’s obligations with respect to the other party’s Confidential Information\ndisclosed or received prior to termination or expiration will survive for two (2) additional years following the expiration or termination of this\nAgreement.\nEither party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All\nsections of this Agreement relating to the rights and obligations of the parties concerning confidential Information disclosed during the term of\nthe Agreement shall survive any such termination.\n21. Nonwaiver. Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.\n22. Attorney Fees. In the event any court action is commenced by one party against the other, the substantially prevailing party is\nentitled to recover its out-of-pocket and court costs and reasonable attorneys’ fees. The cost of in-house legal staff will be valued at market\nrates for comparable services from private practitioners.\n23. Governing Law. This Agreement will be construed in accordance with and governed by the laws of the State of California and the\nUnited States of America that would be applied to contracts entered into between California residents to be performed entirely within\nCalifornia without regard to the conflicts or choice of law rules of such state or of any other jurisdiction.\n24. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other\nprovision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be\ndeemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all\nterms or conditions to give them such effect.\n25. Jurisdiction; Waiver of Jury Trial Each of the parties hereto irrevocably agrees that any action, suit, claim or other legal\nproceeding with respect to this Agreement shall be brought and determined in any court located in the County of Santa Clara in the State of\nCalifornia or of the State of California located in the County of Santa Clara (or any appeals courts thereof). The parties hereby submit to\npersonal jurisdiction and venue in connection with any action brought to enforce or arising out of this Agreement in the County of Santa Clara,\nState of California or the Northern District of California. Each party hereby waives its right to a jury trial for any claims that may arise out of\nthis Agreement.\n4\n26. Service of Process. The parties agree that the delivery of process or other papers in connection with any such action or proceeding\nin the manner provided in Section 21 hereof, or in such other manner as may be permitted by applicable law, shall be valid and sufficient\nservice thereof.\n27. Notices. All notices, requests and other communications provided for in this Agreement shall be in writing, and shall be deemed to\nhave been duly given (a) on the date of delivery when delivered in person, including a courier service, (b) upon receipt if delivered by certified\nmail, return receipt requested, postage prepaid, or (c) upon receipt if sent by facsimile transmission, provided that any notice received by\ntelecopy or otherwise at the addressee’s location on any business day after 5:00 p.m . (addressee’s local time) shall be deemed to have been\nreceived at 9:00 a.m. (addressee’s local time) on the next business day. Either party to this Agreement may notify the other party of any\nchanges to the address or any of the other details specified in this paragraph, provided that such notification shall only be effective on the date\nspecified in such notice or five (5) business days after the notice is given, whichever is later. Rejection or other refusal to accept or the inability\nto deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection,\nrefusal or inability to deliver. All notices hereunder shall be delivered or faxed, as the case may be, to the addresses and/or facsimile numbers\nset forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice.\n28. Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed to be an original, and all of which together shall constitute one and the same document, and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other parties. This Agreement may be executed by facsimile\nsignatures.\nThe parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representation or promise not\nexpressly contained herein.\n[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nUnderstood and Agreed to by the duly authorized representatives of the parties as evidenced by their respective signatures below. The parties\nhave executed this Agreement as of the date first written above.\nBORLAND SOFTWARE CORPORATION\nBy:\n/s/ DOUG BARRE\nPrint Name:\nDoug Barre\nTitle:\nCOO\nDate:\nSept 17/01\nMailing Address:\n100 Enterprise Way\nScotts Valley, CA 95066-3249\nPhone: 831-431 -1000\nFacsimile: 831-431-4171, Legal Department\nName of Company: Starbase Corporation\nBy:\n/s/ WILLIAM R. STOW III\nPrint Name:\nWilliam R. Stow III\nTitle:\nCEO\nDate:\n9-14-2001\nMailing Address:\n4 Hutton Centre, Suite 800\nSanta Ana, CA 92707\nAttention: Mr. William R. Stow, III\nPresident and Chief Operating Officer\nPhone:\nFacsimile: 714-445-4404\n6\nEXHIBIT A\nSubject to the terms and conditions of the Agreement, the Receiving Party may use the Confidential Information solely for the purpose of\nevaluating the following contemplated business opportunity or transaction with the Disclosing Party:\nDiscussions regarding potential strategic business transaction.
da2a358405413641a270ae9004d0e7ff.pdf	effective_date jurisdiction party term	EX-10.2 3 d524844dex102.htm NON-SOLICITATION AND NON-COMPETE AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the “Agreement”) dated this 22nd day of April, 2013 is entered into by\nand between Steven A Ross (“Employee”) and NeoGenomics, Laboratories Inc., a Florida corporation (“Employer” and collectively with\nNeoGenomics, Inc., a Nevada corporation (the “Parent Company”) and any entity that is wholly or partially owned by the Employer or the Parent\nCompany or otherwise affiliated with the Parent Company, the “Company”). Hereinafter, each of the Employee or the Company maybe referred to\nas a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, the Parties have entered into that certain letter agreement of even date herewith that creates an employment relationship between\nthe Employer and Employee (the “Employment Agreement”); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company’s Confidentiality, Non-Solicitation and\nNon-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such employment\nrelationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company’s\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the entry\ninto this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee’s\ntraining, and Employee’s training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agree(s) that the term of this Agreement is effective upon the Employee’s first day of employment with the Company and shall\nsurvive and continue to be in force and effect for two years following the termination of any employment relationship between the Parties (“Term”),\nwhether termination is by the Company with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Employee unless an\nexception is specifically provided in certain situations in any such Restrictive Covenants.\nEMPLOYEE’S INITIALS\n/s/ SR\n1\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other materials containing such information, Customer lists and names and other\ninformation, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including plans to enter into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company’s operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any affiliated entity, which Employee acknowledges and agrees has been compiled by the Company’s expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company to Employee or developed by the Employee on behalf of the Company as Work Product (as defined in\nParagraph 7) are expressly included within the definition of “Confidential Information.” The Parties further agree that the fact the Company may be\nseeking to complete a business transaction is “Confidential Information” within the meaning of this Agreement, as well as all notes, analysis, work\nproduct or other material derived from Confidential Information. Nevertheless, Confidential Information shall not include any information of any\nkind which (1) is in the possession of the Employee prior to the date of this Agreement, as shown by the Employee’s files and records, or (2) prior or\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any\nsimilar agreement with any other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any\nobligation of confidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based\nthereon; or (5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for\nrelease by the non-disclosing party.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and last\nname or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D . number, social insurance\nnumber, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nEMPLOYEE’S INITIALS\n/s/ SR\n2\nd. The term “Customer” shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee’s employment with the Company.\ne. The term “Prospective Customer” shall mean any person or entity which has evidenced an intention to order products or services with the\nCompany within one year immediately preceding the termination of the Employee’s employment with the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing services,\nincluding, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, and molecular\ntesting, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the term of\nthis Agreement and after the termination of employment with the Company for as long as such information remains non-public information, the\nEmployee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible or\nintangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-disclosure agreement executed\nby the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential Information solely in connection with\nhis or her employment with the Company and for no other purpose, (iii) take all reasonable precautions necessary to ensure that the Confidential\nInformation shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the prior written consent of the Company,\n(iv) observe all security policies implemented by the Company from time to time with respect to the Confidential Information, and (v) not use or\ndisclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise,\nfor the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity, any Confidential\nInformation, unless expressly permitted by this Agreement. Employee agrees that protection of the Company’s Confidential Information constitutes\na legitimate business interest justifying the restrictive covenants contained herein. Employee further agrees that the restrictive covenants contained\nherein are reasonably necessary to protect the Company’s legitimate business interest in preserving its Confidential Information. In addition,\nEmployee will not view or access any PI or PHI unless required by the Company in the course Employee’s job duties and responsibilities for the\nCompany and then only when authorized by the Company to do so. Employee acknowledges that he/she shall bear all costs, losses and damages\nresulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nEMPLOYEE’S INITIALS\n/s/ SR\n3\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or otherwise,\nsuch disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall give the\nCompany at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and shall\nreasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nc. Employee acknowledge(s) that this “Confidential Information” is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this “Confidential Information” derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the\nsubject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all “Confidential Information” under this Agreement constitutes\n“Trade Secrets” under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Employee’s relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Employee is\nthe exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company either upon\ntermination of the Employee’s employment or at such other time as is requested by the Company. Employee agree(s) that upon termination of\nemployment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and electronic copies, of\nConfidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any computer file or database\nmaintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential Information to the Company as\ndescribed above, Employee will destroy any analysis, notes, work product or other materials relating to or derived from the Confidential\nInformation. Any retention of Confidential Information may constitute “civil theft” as such term is defined in Chapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or on\nbehalf of the Company. It is further understood and agreed that, after the Employee’s employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which use\nConfidential Information through the Company’s then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation materials,\ncourse materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the Company\nduring the term of the Employee’s employment with the Company or any successor to the Company until the date of termination of the Employee\n(collectively, the “Work Product”), shall be considered a work made for hire and that the Company shall be the sole owner of all rights, including\ncopyright, in and to the Work Product.\nEMPLOYEE’S INITIALS\n/s/ SR\n4\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or otherwise\nprotectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to the Company in\nconnection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in connection therewith\nshall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless assigned by the Company to\nanother entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during or after\nthe termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or trademarks or\nother equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work of authorship,\ncomputer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for vesting such\npatents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the Company absolutely\nand as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work product conceived by the\nEmployee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing services.\nThe covenants contained in this Paragraph 8 (the “Restrictive Covenants”) are given and made by Employee to induce the Company to employ\nEmployee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive Covenants.\nEmployee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination of such\nemployment (such period of time is hereinafter referred to as the “Restrictive Period”), he/she will abide by the following restrictive covenants\nunless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\na.\nNon-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in one or\na series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer, director or\notherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity:\n(i) solicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\nEMPLOYEE’S INITIALS\n/s/ SR\n5\n(ii) request or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor, of\nthe Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor within\none year immediately preceding the termination of the Employee’s employment with the Company, to withdraw, curtail, cancel or\nrefrain from doing business with the Company in any capacity; or\n(iii) manage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv)\nrecruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with the\nCompany or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)\nemploy or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation after\nhis or her termination from the Company and he or she does not have any personal knowledge and/or control over the solicitation\nof or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to that employee.\nb. Non-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly, for\nhimself , or on behalf of others, as an individual on Employee’s own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the Business of the\nCompany, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree that this non-\ncompetition provision is intended to cover situations where a future business opportunity in which the Employee is engaged or a future\nemployer of the Employee is selling the same or similar products and services in a Business which may compete with the Company’s\nproducts and services to Customers and Prospective Customers of the Company in the Restricted Area. This provision shall not cover\nfuture business opportunities or employers of the Employee that sell different types of products or services in the Restricted Area so long\nas such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability to\nsupport his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Employee leave the employment of the Employer for any reason, he or\nshe would be prohibited from joining a for-profit cancer testing genetics laboratory and/or company in the Business of the Company in\nthe Restricted Area. The Parties agree that all non-profit medical testing laboratories, hospitals and academic institutions as well as for-\nprofit prenatal and pediatric/constitutional genetic testing laboratories\nEMPLOYEE’S INITIALS\n/s/ SR\n6\nare excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this non-compete clause to\nwork in any non-profit cancer genetics testing laboratory (e.g., in academia) as well as in a private, for-profit prenatal laboratory or\npediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is intended to prevent the\nEmployee from acting in any of the capacities outlined in this paragraph for any “for-profit” cancer genetics testing laboratories that do\nthe type of any one or more of the types of testing defined in the definition of Business in the Restricted Area.\n9. Acknowledgements of Employee.\na.\nThe Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this Agreement\nand the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary damages will be an\ninsufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company will be entitled to the\nrelief identified in Paragraph No. 10. below.\nb. The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence of\nany claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these Restrictive\nCovenants.\nc.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nd. Employee agrees that this Agreement may be enforced by the Company’s successor in interest by way of merger, business combination\nor consolidation where a majority of the surviving entity is not owned by Company’s shareholders who owned a majority of the\nCompany’s voting shares prior to such transaction and Employee acknowledges and agrees that successors are intended beneficiaries of\nthis Agreement.\ne.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business so as\nto be enforceable to the fullest extent possible as to time, area and line of business.\nf. Employee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\ng. Employee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason, shall\nnot constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in scope\nand duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is judged\nby a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or enforceability of any other\nprovision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the duration of such provision or the\narea covered thereby,\nEMPLOYEE’S INITIALS\n/s/ SR\n7\nthe court making such determination shall have the power to reduce the duration and/or area of such provision, and/or to delete specific words or\nphrases, and in its reduced form, such provision shall then be enforceable and shall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive Covenant\nin Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which monetary\ndamages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all available civil\nremedies, including:\na.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nb. Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties from\naiding and abetting any violations of the Restrictive Covenant; and\nc.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including without\nlimitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this Agreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages or\nfees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined that the\nCompany or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to it\nfor actual or threatened breach of the provisions of Paragraphs 1 – 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement. The\nCompany and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 – 8 of this Agreement and\ntherefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\n11. Duty to Disclose Agreement and to Report New Employer. Employee acknowledges that the Company has a legitimate business purpose in\nthe protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the identity\nof his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to reasonably\ndetermine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\nEMPLOYEE’S INITIALS\n/s/ SR\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated duties of\nemployment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no proprietary\ninformation of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not prohibited from\nentering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement, relationship\nagreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of action by any\nperson or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other restrictions inconsistent\nwith the foregoing representations.\n13. Company Use of Employee Name, Image and Voice. The Company may use and publish Employee’s name and picture, including audio or\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day that\nEmployee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or other\nlimitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission and/or\nstate equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim in the\nmanner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO EMPLOYEE’S EMPLOYMENT WITH COMPANY.\n17. Governing Law, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the laws\nof state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any breach\nor alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such service of\nprocess may be made by certified or registered mail directed to Employee at the address stated in the signature section of this Agreement, with\nservice so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue of any action\ninstituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue. Employee further agrees\nthat any action arising out of this Agreement or the relationship between the parties established herein shall be brought only in courts of competent\njurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company’s successors.\nEMPLOYEE’S INITIALS\n/s/ SR\n9\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all prior\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Employment Agreement executed by\nEmployee. This Agreement may be modified only by written instrument signed by the Company and Employee.\n20. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of any\nsubsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific restrictive\ncovenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by the Company\nof any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are entirely\nwithout substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat PDF file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\nEMPLOYEE’S INITIALS\n/s/ SR\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Steven A. Ross\n4/19/13\nEmployee Signature\nDate\nEmployee Name:\nSteven A. Ross\nEmployee Address: 16520 S. Tamiami Tr 138-131\nFort Myers, FL 33908\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas M. VanOort\n4/19/13\nDate\nName: Douglas M. VanOort\nTitle: Chairman and CEO\nEMPLOYEE’S INITIALS\n/s/ SR\n11	EX-10.2 3 d524844dex102.htm NON-SOLICITATION AND NON-COMPETE AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the “Agreement”) dated this 22nd day of April, 2013 is entered into by\nand between Steven A Ross (“Employee”) and NeoGenomics, Laboratories Inc., a Florida corporation (“Employer” and collectively with\nNeoGenomics, Inc., a Nevada corporation (the “Parent Company”) and any entity that is wholly or partially owned by the Employer or the Parent\nCompany or otherwise affiliated with the Parent Company, the “Company”). Hereinafter, each of the Employee or the Company maybe referred to\nas a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, the Parties have entered into that certain letter agreement of even date herewith that creates an employment relationship between\nthe Employer and Employee (the “Employment Agreement”); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company’s Confidentiality, Non-Solicitation and\nNon-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such employment\nrelationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company’s\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the entry\ninto this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee’s\ntraining, and Employee’s training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agree(s) that the term of this Agreement is effective upon the Employee’s first day of employment with the Company and shall\nsurvive and continue to be in force and effect for two years following the termination of any employment relationship between the Parties (“Term”),\nwhether termination is by the Company with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Employee unless an\nexception is specifically provided in certain situations in any such Restrictive Covenants.\nEMPLOYEE’S INITIALS\n/s/ SR\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other materials containing such information, Customer lists and names and other\ninformation, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including plans to enter into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company’s operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any affiliated entity, which Employee acknowledges and agrees has been compiled by the Company’s expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company to Employee or developed by the Employee on behalf of the Company as Work Product (as defined in\nParagraph 7) are expressly included within the definition of “Confidential Information.” The Parties further agree that the fact the Company may be\nseeking to complete a business transaction is “Confidential Information” within the meaning of this Agreement, as well as all notes, analysis, work\nproduct or other material derived from Confidential Information. Nevertheless, Confidential Information shall not include any information of any\nkind which (1) is in the possession of the Employee prior to the date of this Agreement, as shown by the Employee’s files and records, or (2) prior or\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any\nsimilar agreement with any other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any\nobligation of confidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based\nthereon; or (5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for\nrelease by the non-disclosing party.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and last\nname or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D. number, social insurance\nnumber, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nEMPLOYEE’S INITIALS\n/s/ SR\nd. The term “Customer” shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee’s employment with the Company.\ne. The term “Prospective Customer” shall mean any person or entity which has evidenced an intention to order products or services with the\nCompany within one year immediately preceding the termination of the Employee’s employment with the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing services,\nincluding, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, and molecular\ntesting, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the term of\nthis Agreement and after the termination of employment with the Company for as long as such information remains non-public information, the\nEmployee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible or\nintangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-disclosure agreement executed\nby the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential Information solely in connection with\nhis or her employment with the Company and for no other purpose, (iii) take all reasonable precautions necessary to ensure that the Confidential\nInformation shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the prior written consent of the Company,\n(iv) observe all security policies implemented by the Company from time to time with respect to the Confidential Information, and (v) not use or\ndisclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise,\nfor the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity, any Confidential\nInformation, unless expressly permitted by this Agreement. Employee agrees that protection of the Company’s Confidential Information constitutes\na legitimate business interest justifying the restrictive covenants contained herein. Employee further agrees that the restrictive covenants contained\nherein are reasonably necessary to protect the Company’s legitimate business interest in preserving its Confidential Information. In addition,\nEmployee will not view or access any PI or PHI unless required by the Company in the course Employee’s job duties and responsibilities for the\nCompany and then only when authorized by the Company to do so. Employee acknowledges that he/she shall bear all costs, losses and damages\nresulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nEMPLOYEE’S INITIALS\n/s/ SR\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or otherwise,\nsuch disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall give the\nCompany at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and shall\nreasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nc. Employee acknowledge(s) that this “Confidential Information” is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this “Confidential Information” derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the\nsubject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all “Confidential Information” under this Agreement constitutes\n“Trade Secrets” under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Employee’s relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Employee is\nthe exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company either upon\ntermination of the Employee’s employment or at such other time as is requested by the Company. Employee agree(s) that upon termination of\nemployment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and electronic copies, of\nConfidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any computer file or database\nmaintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential Information to the Company as\ndescribed above, Employee will destroy any analysis, notes, work product or other materials relating to or derived from the Confidential\nInformation. Any retention of Confidential Information may constitute “civil theft” as such term is defined in Chapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or on\nbehalf of the Company. It is further understood and agreed that, after the Employee’s employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which use\nConfidential Information through the Company’s then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation materials,\ncourse materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the Company\nduring the term of the Employee’s employment with the Company or any successor to the Company until the date of termination of the Employee\n(collectively, the “Work Product”), shall be considered a work made for hire and that the Company shall be the sole owner of all rights, including\ncopyright, in and to the Work Product.\nEMPLOYEE’S INITIALS\n/s/ SR\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or otherwise\nprotectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to the Company in\nconnection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in connection therewith\nshall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless assigned by the Company to\nanother entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during or after\nthe termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or trademarks or\nother equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work of authorship,\ncomputer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for vesting such\npatents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the Company absolutely\nand as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work product conceived by the\nEmployee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing services.\nThe covenants contained in this Paragraph 8 (the “Restrictive Covenants™) are given and made by Employee to induce the Company to employ\nEmployee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive Covenants.\nEmployee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination of such\nemployment (such period of time is hereinafter referred to as the “Restrictive Period”), he/she will abide by the following restrictive covenants\nunless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\na.  Non-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in one or\na series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer, director or\notherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity:\n@ solicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\nEMPLOYEE’S INITIALS\n/s/ SR\n(i)  request or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor, of\nthe Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor within\none year immediately preceding the termination of the Employee’s employment with the Company, to withdraw, curtail, cancel or\nrefrain from doing business with the Company in any capacity; or\n(ili) manage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv)  recruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with the\nCompany or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\nW) employ or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation after\nhis or her termination from the Company and he or she does not have any personal knowledge and/or control over the solicitation\nof or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to that employee.\nNon-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly, for\nhimself, or on behalf of others, as an individual on Employee’s own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the Business of the\nCompany, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree that this non-\ncompetition provision is intended to cover situations where a future business opportunity in which the Employee is engaged or a future\nemployer of the Employee is selling the same or similar products and services in a Business which may compete with the Company’s\nproducts and services to Customers and Prospective Customers of the Company in the Restricted Area. This provision shall not cover\nfuture business opportunities or employers of the Employee that sell different types of products or services in the Restricted Area so long\nas such future business opportunities or employers are not in the Business of the Company.\n \nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability to\nsupport his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Employee leave the employment of the Employer for any reason, he or\nshe would be prohibited from joining a for-profit cancer testing genetics laboratory and/or company in the Business of the Company in\nthe Restricted Area. The Parties agree that all non-profit medical testing laboratories, hospitals and academic institutions as well as for-\nprofit prenatal and pediatric/constitutional genetic testing laboratories\nEMPLOYEE’S INITIALS\n/s/ SR\nare excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this non-compete clause to\nwork in any non-profit cancer genetics testing laboratory (e.g., in academia) as well as in a private, for-profit prenatal laboratory or\npediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is intended to prevent the\nEmployee from acting in any of the capacities outlined in this paragraph for any “for-profit” cancer genetics testing laboratories that do\nthe type of any one or more of the types of testing defined in the definition of Business in the Restricted Area.\n9. Acknowledgements of Employee. d. The Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this Agreement\nand the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary damages will be an\ninsufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company will be entitled to the\nrelief identified in Paragraph No. 10. below.\nThe Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence of\nany claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these Restrictive\nCovenants.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nEmployee agrees that this Agreement may be enforced by the Company’s successor in interest by way of merger, business combination\nor consolidation where a majority of the surviving entity is not owned by Company’s shareholders who owned a majority of the\nCompany’s voting shares prior to such transaction and Employee acknowledges and agrees that successors are intended beneficiaries of\nthis Agreement.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business so as\nto be enforceable to the fullest extent possible as to time, area and line of business.\nEmployee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\nEmployee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason, shall\nnot constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in scope and duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is judged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or enforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, EMPLOYEE’S INITIALS\n/s/ SR\nthe court making such determination shall have the power to reduce the duration and/or area of such provision, and/or to delete specific words or\nphrases, and in its reduced form, such provision shall then be enforceable and shall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive Covenant\nin Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which monetary\ndamages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all available civil\nremedies, including:\na.  Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nb.  Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties from\naiding and abetting any violations of the Restrictive Covenant; and\nc.  Compensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including without\nlimitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this Agreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages or\nfees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined that the\nCompany or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to it\nfor actual or threatened breach of the provisions of Paragraphs 1 — 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement. The\nCompany and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 — 8 of this Agreement and\ntherefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\nthe protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the identity\nof his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to reasonably\ndetermine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\nEMPLOYEE’S INITIALS\n/s/ SR\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated duties of\nemployment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no proprietary\ninformation of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not prohibited from\nentering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement, relationship\nagreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of action by any\nperson or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other restrictions inconsistent\nwith the foregoing representations.\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day that\nEmployee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or other\nlimitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission and/or\nstate equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim in the\nmanner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO EMPLOYEE’S EMPLOYMENT WITH COMPANY.\n17. Governing I.aw, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the laws\nof state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any breach\nor alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such service of\nprocess may be made by certified or registered mail directed to Employee at the address stated in the signature section of this Agreement, with\nservice so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue of any action\ninstituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue. Employee further agrees\nthat any action arising out of this Agreement or the relationship between the parties established herein shall be brought only in courts of competent\njurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company’s successors.\nEMPLOYEE’S INITIALS\n/s/ SR\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all prior\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Employment Agreement executed by\nEmployee. This Agreement may be modified only by written instrument signed by the Company and Employee.\n20. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of any\nsubsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific restrictive\ncovenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by the Company\nof any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n \n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are entirely\nwithout substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat PDF file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\nEMPLOYEE’S INITIALS\n/s/ SR\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Steven A. Ross 4/19/13\nEmployee Signature Date\nEmployee Name: Steven A. Ross\nEmployee Address: 16520 S. Tamiami Tr 138-131\nFort Myers, FL 33908\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas M. VanOort 4/19/13\nDate\nName: Douglas M. VanOort\nTitle:  Chairman and CEO\nEMPLOYEE’S INITIALS\n/s/ SR\n11	EX-10.2 3 d524844dex102.htm NON-SOLICITATION AND NON-COMPETE AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the "Agreement") dated this 22nd day of April, 2013 is entered into by\nand between Steven A Ross ("Employee") and NeoGenomics, Laboratories Inc., a Florida corporation ("Employer" and collectively with\nNeoGenomics, Inc., a Nevada corporation (the "Parent Company.") and any entity that is wholly or partially owned by the Employer or the Parent\nCompany or otherwise affiliated with the Parent Company, the "Company."). Hereinafter, each of the Employee or the Company maybe referred to\nas a "Party." and together be referred to as the "Parties"\nRECITALS:\nWHEREAS, the Parties have entered into that certain letter agreement of even date herewith that creates an employment relationship between\nthe Employer and Employee (the "Employment Agreement"); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company's Confidentiality, Non-Solicitation and\nNon-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidentia Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such employment\nrelationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company's\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the entry\ninto this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee's\ntraining, and Employee's training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agree(s) that the term of this Agreement is effective upon the Employee's first day of employment with the Company and shall\nsurvive and continue to be in force and effect for two years following the termination of any employment relationship between the Parties ("Term"),\nwhether termination is by the Company with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Employee unless an\nexception is specifically provided in certain situations in any such Restrictive Covenants.\nEMPLOYEE'S INITIALS\n/s/ SR\n1\n2. Definitions.\na. The term "Confidential Information" as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer\ndisks\nor\nother\ncomputer storage medium, data, models or any photographic or other materials containing such information, Customer lists and names and other\ninformation, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including plans to enter into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company's operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any affiliated entity, which Employee acknowledges and agrees has been compiled by the Company's expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further,\nall\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company to Employee or developed by the Employee on behalf of the Company as Work Product (as defined in\nParagraph 7) are expressly included within the definition of "Confidential Information." The Parties further agree that the fact the Company may be\nseeking to complete a business transaction is "Confidential Information" within the meaning of this Agreement, as well as all notes, analysis, work\nproduct or other material derived from Confidential Information. Nevertheless, Confidential Information shall not include any information of any\nkind which (1) is in the possession of the Employee prior to the date of this Agreement, as shown by the Employee's files and records, or (2) prior\nor\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any\nsimilar agreement with any other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any\nobligation of confidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based\nthereon; or (5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for\nrelease by the non-disclosing party.\nb. The term "Personal Information" ("PI") is Confidential Information and includes, but is not limited to, an individual's first name and last\nname or first initial and last name in combination with any of the following: an individual's social security number, tax I.D. number, social insurance\nnumber, driver's license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nC.\nThe term "Protected Health Information" ("PHI") is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual's health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nEMPLOYEE'S INITIALS\n/s/ SR\n2\nd. The term "Customer" shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee's employment with the Company.\ne. The term "Prospective Customer" shall mean any person or entity which has evidenced an intention to order products or services with the\nCompany within one year immediately preceding the termination of the Employee's employment with the Company.\nf. The term "Restricted Area" shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng.\nThe phrase "directly. or indirectly." shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term "Business" shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing services,\nincluding, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization ("FISH"), morphological studies, and molecular\ntesting, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the term of\nthis Agreement and after the termination of employment with the Company for as long as such information remains non-public information, the\nEmployee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible\nor\nintangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-disclosure agreement executed\nby the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential Information solely in connection with\nhis or her employment with the Company and for no other purpose, (iii) take all reasonable precautions necessary to ensure that the Confidential\nInformation shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the prior written consent of the Company,\n(iv) observe all security policies implemented by the Company from time to time with respect to the Confidentia Information, and (v) not use or\ndisclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise,\nfor\nthe benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity, any Confidential\nInformation, unless expressly permitted by this Agreement. Employee agrees that protection of the Company's Confidential Information constitutes\na\nlegitimate business interest justifying the restrictive covenants contained herein. Employee further agrees that the restrictive covenants contained\nherein are reasonably necessary to protect the Company's legitimate business interest in preserving its Confidential Information. In addition,\nEmployee will not view or access any PI or PHI unless required by the Company in the course Employee's job duties and responsibilities for the\nCompany and then only when authorized by the Company to do SO. Employee acknowledges that he/she shall bear all costs, losses and damages\nresulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nEMPLOYEE'S INITIALS\n/s/ SR\n3\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or otherwise,\nsuch disclosure shall be limited to the narrowest disclosure SO required and, except to the extent prohibited by law, Employee shall give the\nCompany at least two (2) weeks' notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and shall\nreasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nC.\nEmployee\nacknowledge(s)\nthat\nthis\n"Confidential\nInformation"\nis\nof\nvalue\nto\nthe\nCompany\nby\nproviding\nit\nwith\na\ncompetitive\nadvantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this "Confidential Information" derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the\nsubject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all "Confidential Information" under this Agreement constitutes\n"Trade Secrets" under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee's attorney, if any ("Representative(s)"), for the sole purpose of evaluating Employee's relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Employee is\nthe exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company either upon\ntermination of the Employee's employment or at such other time as is requested by the Company. Employee agree(s) that upon termination of\nemployment\nfor\nany\nreason\nwhatsoever\nEmployee\nshall\nreturn\nall\ncopies,\nin\nwhatever\nform\nor\nmedia,\nincluding\nhard\ncopies\nand\nelectronic\ncopies,\nof\nmaintained by Employee and shall certify in writing that he/she has done SO. In addition to returning all Confidential Information to the Company\nConfidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any computer file or database as\ndescribed above, Employee will destroy any analysis, notes, work product or other materials relating to or derived from the Confidential\nInformation. Any retention of Confidential Information may constitute "civil theft" as such term is defined in Chapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or on\nbehalf of the Company. It is further understood and agreed that, after the Employee's employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which\nuse\nConfidential Information through the Company's then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation materials,\ncourse materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the Company\nduring the term of the Employee's employment with the Company or any successor to the Company until the date of termination of the Employee\n(collectively, the "Work Product"), shall be considered a work made for hire and that the Company shall be the sole owner of all rights, including\ncopyright, in and to the Work Product.\nEMPLOYEE'S INITIALS\n/s/ SR\n4\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or otherwise\nprotectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to the Company in\nconnection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in connection therewith\nshall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless assigned by the Company to\nanother entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do SO (whether during or after\nthe termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or trademarks or\nother equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work of authorship,\ncomputer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for vesting such\npatents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the Company absolutely\nand as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work product conceived by the\nEmployee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing services.\nThe covenants contained in this Paragraph 8 (the "Restrictive Covenants") are given and made by Employee to induce the Company to employ\nEmployee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive Covenants.\nEmployee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination of such\nemployment (such period of time is hereinafter referred to as the "Restrictive Period"), he/she will abide by the following restrictive covenants\nunless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\na.\nNon-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in one or\na\nseries of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer, director or\notherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity:\n(i)\nsolicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\nEMPLOYEE'S INITIALS\n/s/ SR\n5\n(ii)\nrequest or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor, of\nthe Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor within\none year immediately preceding the termination of the Employee's employment with the Company, to withdraw, curtail, cancel or\nrefrain from doing business with the Company in any capacity; or\n(iii)\nmanage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv)\nrecruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with the\nCompany or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)\nemploy or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation after\nhis or her termination from the Company and he or she does not have any personal knowledge and/or control over the solicitation\nof or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to that employee.\nb.\nNon-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly, for\nhimself or on behalf of others, as an individual on Employee's own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the Business of the\nCompany, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree that this non-\ncompetition provision is intended to cover situations where a future business opportunity in which the Employee is engaged or a future\nemployer of the Employee is selling the same or similar products and services in a Business which may compete with the Company's\nproducts and services to Customers and Prospective Customers of the Company in the Restricted Area. This provision shall not cover\nfuture business opportunities or employers of the Employee that sell different types of products or services in the Restricted Area So long\nas such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability to\nsupport his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Employee leave the employment of the Employer for any reason, he or\nshe would be prohibited from joining a for-profit cancer testing genetics laboratory and/or company in the Business of the Company in\nthe Restricted Area. The Parties agree that all non-profit medical testing laboratories, hospitals and academic institutions as well as for-\nprofit prenatal and pediatric/constitutional genetic testing laboratories\nEMPLOYEE'S INITIALS\n/s/ SR\n6\nare excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this non-compete clause to\nwork in any non-profit cancer genetics testing laboratory (e.g., in academia) as well as in a private, for-profit prenatal laboratory or\npediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is intended to prevent the\nEmployee from acting in any of the capacities outlined in this paragraph for any "for-profit" cancer genetics testing laboratories that do\nthe type of any one or more of the types of testing defined in the definition of Business in the Restricted Area.\n9. Acknowledgements of Employee.\na.\nThe Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this Agreement\nand the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary damages will be an\ninsufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company will be entitled to the\nrelief identified in Paragraph No. 10. below.\nb.\nThe Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence of\nany claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these Restrictive\nCovenants.\nC.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nd.\nEmployee agrees that this Agreement may be enforced by the Company's successor in interest by way of merger, business combination\nor consolidation where a majority of the surviving entity is not owned by Company's shareholders who owned a majority of the\nCompany's voting shares prior to such transaction and Employee acknowledges and agrees that successors are intended beneficiaries\nof\nthis Agreement.\ne.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business SO as\nto be enforceable to the fullest extent possible as to time, area and line of business.\nf.\nEmployee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\ng.\nEmployee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason, shall\nnot constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10.\nSpecific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in scope\nand duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is judged\nby a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or enforceability of any other\nprovision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the duration of such provision or the\narea covered thereby,\nEMPLOYEE'S INITIALS\n/s/ SR\n7\nthe court making such determination shall have the power to reduce the duration and/or area of such provision, and/or to delete specific words or\nphrases, and in its reduced form, such provision shall then be enforceable and shall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive Covenant\nin Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which monetary\ndamages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all available civil\nremedies, including:\na.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nb.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly\nor\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties from\naiding and abetting any violations of the Restrictive Covenant; and\nC.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including without\nlimitation, all attorneys' fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this Agreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages or\nfees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined that the\nCompany or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to it\nfor actual or threatened breach of the provisions of Paragraphs 1 - 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement. The\nCompany and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 - 8 of this Agreement and\ntherefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\n11. Duty to Disclose Agreement and to Report New Employer. Employee acknowledges that the Company has a legitimate business purpose in\nthe protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the identity\nof his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to reasonably\ndetermine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\nEMPLOYEE'S INITIALS\n/s/ SR\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated duties of\nemployment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no proprietary\ninformation of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not prohibited from\nentering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement, relationship\nagreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of action by any\nperson or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other restrictions inconsistent\nwith the foregoing representations.\n13. Company Use of Employee Name, Image and Voice. The Company may use and publish Employee's name and picture, including audio\nor\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14.\nTermination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day that\nEmployee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or other\nlimitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission and/or\nstate equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim in the\nmanner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO EMPLOYEE'S EMPLOYMENT WITH COMPANY.\n17. Governing Law, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the laws\nof state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any breach\nor\nalleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such service of\nprocess may be made by certified or registered mail directed to Employee at the address stated in the signature section of this Agreement, with\nservice so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue of any action\ninstituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue. Employee\nfurther\nagrees\nthat any action arising out of this Agreement or the relationship between the parties established herein shall be brought only in courts of competent\njurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company's successors.\nEMPLOYEE'S INITIALS\n/s/ SR\n9\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all prior\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Employment Agreement executed by\nEmployee. This Agreement may be modified only by written instrument signed by the Company and Employee.\n20.\nSeverability.\nIn\ncase\nany\none\nor\nmore\nprovisions\ncontained\nin\nthis\nAgreement\nshall,\nfor\nany\nreason,\nbe\nheld\ninvalid,\nillegal\nor\nunenforceable\nin\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of any\nsubsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific restrictive\ncovenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by the Company\nof any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are entirely\nwithout substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat PDF file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\nEMPLOYEE'S INITIALS\n/s/ SR\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Steven A. Ross\n4/19/13\nEmployee Signature\nDate\nEmployee Name:\nSteven A. Ross\nEmployee Address:\n16520 S. Tamiami Tr 138-131\nFort Myers, FL 33908\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas M. VanOort\n4/19/13\nDate\nName: Douglas M. VanOort\nTitle: Chairman and CEO\nEMPLOYEE'S INITIALS\n/s/ SR\n11	EX-10.2 3 d524844dex102.htm NON-SOLICITATION AND NON-COMPETE AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the “Agreement”) dated this 22nd day of April, 2013 is entered into by\nand between Steven A Ross (“Employee”) and NeoGenomics, Laboratories Inc., a Florida corporation (“Employer” and collectively with\nNeoGenomics, Inc., a Nevada corporation (the “Parent Company”) and any entity that is wholly or partially owned by the Employer or the Parent\nCompany or otherwise affiliated with the Parent Company, the “Company”). Hereinafter, each of the Employee or the Company maybe referred to\nas a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, the Parties have entered into that certain letter agreement of even date herewith that creates an employment relationship between\nthe Employer and Employee (the “Employment Agreement”); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company’s Confidentiality, Non-Solicitation and\nNon-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such employment\nrelationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company’s\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the entry\ninto this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee’s\ntraining, and Employee’s training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agree(s) that the term of this Agreement is effective upon the Employee’s first day of employment with the Company and shall\nsurvive and continue to be in force and effect for two years following the termination of any employment relationship between the Parties (“Term”),\nwhether termination is by the Company with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Employee unless an\nexception is specifically provided in certain situations in any such Restrictive Covenants.\nEMPLOYEE’S INITIALS\n/s/ SR\n1\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other materials containing such information, Customer lists and names and other\ninformation, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including plans to enter into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company’s operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any affiliated entity, which Employee acknowledges and agrees has been compiled by the Company’s expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company to Employee or developed by the Employee on behalf of the Company as Work Product (as defined in\nParagraph 7) are expressly included within the definition of “Confidential Information.” The Parties further agree that the fact the Company may be\nseeking to complete a business transaction is “Confidential Information” within the meaning of this Agreement, as well as all notes, analysis, work\nproduct or other material derived from Confidential Information. Nevertheless, Confidential Information shall not include any information of any\nkind which (1) is in the possession of the Employee prior to the date of this Agreement, as shown by the Employee’s files and records, or (2) prior or\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any\nsimilar agreement with any other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any\nobligation of confidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based\nthereon; or (5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for\nrelease by the non-disclosing party.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and last\nname or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D . number, social insurance\nnumber, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nEMPLOYEE’S INITIALS\n/s/ SR\n2\nd. The term “Customer” shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee’s employment with the Company.\ne. The term “Prospective Customer” shall mean any person or entity which has evidenced an intention to order products or services with the\nCompany within one year immediately preceding the termination of the Employee’s employment with the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing services,\nincluding, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, and molecular\ntesting, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the term of\nthis Agreement and after the termination of employment with the Company for as long as such information remains non-public information, the\nEmployee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible or\nintangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-disclosure agreement executed\nby the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential Information solely in connection with\nhis or her employment with the Company and for no other purpose, (iii) take all reasonable precautions necessary to ensure that the Confidential\nInformation shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the prior written consent of the Company,\n(iv) observe all security policies implemented by the Company from time to time with respect to the Confidential Information, and (v) not use or\ndisclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise,\nfor the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity, any Confidential\nInformation, unless expressly permitted by this Agreement. Employee agrees that protection of the Company’s Confidential Information constitutes\na legitimate business interest justifying the restrictive covenants contained herein. Employee further agrees that the restrictive covenants contained\nherein are reasonably necessary to protect the Company’s legitimate business interest in preserving its Confidential Information. In addition,\nEmployee will not view or access any PI or PHI unless required by the Company in the course Employee’s job duties and responsibilities for the\nCompany and then only when authorized by the Company to do so. Employee acknowledges that he/she shall bear all costs, losses and damages\nresulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nEMPLOYEE’S INITIALS\n/s/ SR\n3\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or otherwise,\nsuch disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall give the\nCompany at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and shall\nreasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nc. Employee acknowledge(s) that this “Confidential Information” is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this “Confidential Information” derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the\nsubject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all “Confidential Information” under this Agreement constitutes\n“Trade Secrets” under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Employee’s relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Employee is\nthe exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company either upon\ntermination of the Employee’s employment or at such other time as is requested by the Company. Employee agree(s) that upon termination of\nemployment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and electronic copies, of\nConfidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any computer file or database\nmaintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential Information to the Company as\ndescribed above, Employee will destroy any analysis, notes, work product or other materials relating to or derived from the Confidential\nInformation. Any retention of Confidential Information may constitute “civil theft” as such term is defined in Chapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or on\nbehalf of the Company. It is further understood and agreed that, after the Employee’s employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which use\nConfidential Information through the Company’s then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation materials,\ncourse materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the Company\nduring the term of the Employee’s employment with the Company or any successor to the Company until the date of termination of the Employee\n(collectively, the “Work Product”), shall be considered a work made for hire and that the Company shall be the sole owner of all rights, including\ncopyright, in and to the Work Product.\nEMPLOYEE’S INITIALS\n/s/ SR\n4\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or otherwise\nprotectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to the Company in\nconnection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in connection therewith\nshall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless assigned by the Company to\nanother entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during or after\nthe termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or trademarks or\nother equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work of authorship,\ncomputer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for vesting such\npatents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the Company absolutely\nand as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work product conceived by the\nEmployee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing services.\nThe covenants contained in this Paragraph 8 (the “Restrictive Covenants”) are given and made by Employee to induce the Company to employ\nEmployee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive Covenants.\nEmployee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination of such\nemployment (such period of time is hereinafter referred to as the “Restrictive Period”), he/she will abide by the following restrictive covenants\nunless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\na.\nNon-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in one or\na series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer, director or\notherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity:\n(i) solicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\nEMPLOYEE’S INITIALS\n/s/ SR\n5\n(ii) request or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor, of\nthe Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor within\none year immediately preceding the termination of the Employee’s employment with the Company, to withdraw, curtail, cancel or\nrefrain from doing business with the Company in any capacity; or\n(iii) manage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv)\nrecruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with the\nCompany or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)\nemploy or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation after\nhis or her termination from the Company and he or she does not have any personal knowledge and/or control over the solicitation\nof or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to that employee.\nb. Non-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly, for\nhimself , or on behalf of others, as an individual on Employee’s own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the Business of the\nCompany, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree that this non-\ncompetition provision is intended to cover situations where a future business opportunity in which the Employee is engaged or a future\nemployer of the Employee is selling the same or similar products and services in a Business which may compete with the Company’s\nproducts and services to Customers and Prospective Customers of the Company in the Restricted Area. This provision shall not cover\nfuture business opportunities or employers of the Employee that sell different types of products or services in the Restricted Area so long\nas such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability to\nsupport his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Employee leave the employment of the Employer for any reason, he or\nshe would be prohibited from joining a for-profit cancer testing genetics laboratory and/or company in the Business of the Company in\nthe Restricted Area. The Parties agree that all non-profit medical testing laboratories, hospitals and academic institutions as well as for-\nprofit prenatal and pediatric/constitutional genetic testing laboratories\nEMPLOYEE’S INITIALS\n/s/ SR\n6\nare excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this non-compete clause to\nwork in any non-profit cancer genetics testing laboratory (e.g., in academia) as well as in a private, for-profit prenatal laboratory or\npediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is intended to prevent the\nEmployee from acting in any of the capacities outlined in this paragraph for any “for-profit” cancer genetics testing laboratories that do\nthe type of any one or more of the types of testing defined in the definition of Business in the Restricted Area.\n9. Acknowledgements of Employee.\na.\nThe Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this Agreement\nand the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary damages will be an\ninsufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company will be entitled to the\nrelief identified in Paragraph No. 10. below.\nb. The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence of\nany claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these Restrictive\nCovenants.\nc.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nd. Employee agrees that this Agreement may be enforced by the Company’s successor in interest by way of merger, business combination\nor consolidation where a majority of the surviving entity is not owned by Company’s shareholders who owned a majority of the\nCompany’s voting shares prior to such transaction and Employee acknowledges and agrees that successors are intended beneficiaries of\nthis Agreement.\ne.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business so as\nto be enforceable to the fullest extent possible as to time, area and line of business.\nf. Employee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\ng. Employee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason, shall\nnot constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in scope\nand duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is judged\nby a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or enforceability of any other\nprovision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the duration of such provision or the\narea covered thereby,\nEMPLOYEE’S INITIALS\n/s/ SR\n7\nthe court making such determination shall have the power to reduce the duration and/or area of such provision, and/or to delete specific words or\nphrases, and in its reduced form, such provision shall then be enforceable and shall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive Covenant\nin Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which monetary\ndamages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all available civil\nremedies, including:\na.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nb. Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties from\naiding and abetting any violations of the Restrictive Covenant; and\nc.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including without\nlimitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this Agreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages or\nfees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined that the\nCompany or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to it\nfor actual or threatened breach of the provisions of Paragraphs 1 – 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement. The\nCompany and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 – 8 of this Agreement and\ntherefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\n11. Duty to Disclose Agreement and to Report New Employer. Employee acknowledges that the Company has a legitimate business purpose in\nthe protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the identity\nof his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to reasonably\ndetermine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\nEMPLOYEE’S INITIALS\n/s/ SR\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated duties of\nemployment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no proprietary\ninformation of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not prohibited from\nentering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement, relationship\nagreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of action by any\nperson or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other restrictions inconsistent\nwith the foregoing representations.\n13. Company Use of Employee Name, Image and Voice. The Company may use and publish Employee’s name and picture, including audio or\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day that\nEmployee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or other\nlimitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission and/or\nstate equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim in the\nmanner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO EMPLOYEE’S EMPLOYMENT WITH COMPANY.\n17. Governing Law, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the laws\nof state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any breach\nor alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such service of\nprocess may be made by certified or registered mail directed to Employee at the address stated in the signature section of this Agreement, with\nservice so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue of any action\ninstituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue. Employee further agrees\nthat any action arising out of this Agreement or the relationship between the parties established herein shall be brought only in courts of competent\njurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company’s successors.\nEMPLOYEE’S INITIALS\n/s/ SR\n9\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all prior\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Employment Agreement executed by\nEmployee. This Agreement may be modified only by written instrument signed by the Company and Employee.\n20. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of any\nsubsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific restrictive\ncovenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by the Company\nof any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are entirely\nwithout substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat PDF file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\nEMPLOYEE’S INITIALS\n/s/ SR\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Steven A. Ross\n4/19/13\nEmployee Signature\nDate\nEmployee Name:\nSteven A. Ross\nEmployee Address: 16520 S. Tamiami Tr 138-131\nFort Myers, FL 33908\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas M. VanOort\n4/19/13\nDate\nName: Douglas M. VanOort\nTitle: Chairman and CEO\nEMPLOYEE’S INITIALS\n/s/ SR\n11
da6a4e9e5efb25bf1c0caacc891678a7.pdf	effective_date jurisdiction party term	EX-99.(D)(3)(B) 15 dex99d3b.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(B)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of July 8, 2002 (the “Effective Date”) by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n(“InterTrust”) and Koninklijke Philips Electronics N.V., a Netherlands corporation, with a place of business at The Breitner Tower, Amstelplein,\n1096 HA Amsterdam, The Netherlands (“Company”).\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential (“Confidential Information”); provided that information disclosed by the disclosing party (“Discloser”) will be\nconsidered Confidential Information by the receiving party (“Recipient”), only if such information is conspicuously marked as “Confidential”\nif communicated in writing, or if communicated orally, identified as “Confidential” at time of disclosure. If the Discloser fails to mark or\nidentify disclosed Confidential Information as “Confidential”, the Recipient shall be responsible for protecting such disclosures in accordance\nwith this Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as “Confidential” and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty’s respective business, strategies, technologies, intellectual property, and related information.\n2. NON -DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use the same degree of care that it uses to protect its own confidential and proprietary information of similar importance\n(but no event less than reasonable care) to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information.\nCompany may disclose the Confidential Information only to its employees and any direct or indirect parent, majority-owned subsidiary or\nAffiliate, and their employees, agents and professional advisors, provided that such party agrees to be bound by this Agreement to the same\nextent as Company is bound and Company agrees to be responsible for any breach by these entities, agents and advisors. Affiliate shall mean\nany entity with more than 50% of its equity owned or controlled directly or indirectly by Koninklijke Philips Electronics N.V. The purpose of\ndisclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to evaluate and comment upon certain\nConfidential Information so as to enable the Recipient to evaluate a potential business relationship or strategic transaction between Recipient\nand Discloser (the “Purpose”). Recipient agrees not to use Confidential Information otherwise for its own or any third party’s benefit for any\npurpose whatsoever, other than the Purpose, without the prior written approval of an authorized representative of Discloser in each instance.\nRecipient may disclose Confidential Information if required by any judicial or governmental request, requirement or order; provided that\nRecipient will take reasonable steps to notify Discloser of\nInitials:\n/\n1\nsuch request or order and provides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) Recipient agrees that without the Discloser’s prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has received\nConfidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient and the\nDiscloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel that\nsuch disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange rules,\nand the Recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\n3. OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\n4. TERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient’s duty to protect\nDiscloser’s Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\n5. INDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser’s information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.\n6. NO WARRANTY. Discloser warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information is\nprovided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\n7. RETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser’s written request, provided, however, Recipient shall destroy such information if and to the extent it has been been\nincorporated with Confidential Information of Recipient.\n8. NO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\n9. ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be amended except by the written agreement signed by authorized representatives of\nboth parties. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of\nlaw relating to conflict of laws. The parties to this Agreement hereby consent to jurisdiction and venue in the Courts of the State of California\nand in the U.S . District Courts in the City of San Jose, California.\n2\nUnderstood and agreed:\nFor: InterTrust Technologies\nCorporation\nFor: Koninklijke Philips Electronics N.V.\n/s/ Patrick Nguyen\n07/08/02\n/s/ Ivo P.J. Verheijden\n07/08/02\nBy: (Signature)\nDate\nBy (Signature)\nDate\nPatrick Nguyen, Executive Vice\nPresident\nIvo P.J. Verheijden, Associate General Counsel\nPrinted Name and Title\nPrinted Name and Title\n3	EX-99.(D)(3)(B) 15 dex99d3b.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(B)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of July 8, 2002 (the “Effective Date”) by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n(“InterTrust”) and Koninklijke Philips Electronics N.V., a Netherlands corporation, with a place of business at The Breitner Tower, Amstelplein,\n1096 HA Amsterdam, The Netherlands (“Company”).\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential (“Confidential Information™); provided that information disclosed by the disclosing party (“Discloser”) will be\nconsidered Confidential Information by the receiving party (“Recipient”), only if such information is conspicuously marked as “Confidential”\nif communicated in writing, or if communicated orally, identified as “Confidential” at time of disclosure. If the Discloser fails to mark or\nidentify disclosed Confidential Information as “Confidential”, the Recipient shall be responsible for protecting such disclosures in accordance\nwith this Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as “Confidential” and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty’s respective business, strategies, technologies, intellectual property, and related information.\n2. NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use the same degree of care that it uses to protect its own confidential and proprietary information of similar importance\n(but no event less than reasonable care) to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information.\nCompany may disclose the Confidential Information only to its employees and any direct or indirect parent, majority-owned subsidiary or\nAffiliate, and their employees, agents and professional advisors, provided that such party agrees to be bound by this Agreement to the same\nextent as Company is bound and Company agrees to be responsible for any breach by these entities, agents and advisors. Affiliate shall mean\nany entity with more than 50% of its equity owned or controlled directly or indirectly by Koninklijke Philips Electronics N.V. The purpose of\ndisclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to evaluate and comment upon certain\nConfidential Information so as to enable the Recipient to evaluate a potential business relationship or strategic transaction between Recipient\nand Discloser (the “Purpose”). Recipient agrees not to use Confidential Information otherwise for its own or any third party’s benefit for any\npurpose whatsoever, other than the Purpose, without the prior written approval of an authorized representative of Discloser in each instance.\nRecipient may disclose Confidential Information if required by any judicial or governmental request, requirement or order; provided that\nRecipient will take reasonable steps to notify Discloser of\nInitials: /\nsuch request or order and provides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) Recipient agrees that without the Discloser’s prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has received\nConfidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient and the\nDiscloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel that\nsuch disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange rules,\nand the Recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\nOWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\nTERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient’s duty to protect\nDiscloser’s Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\nINDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser’s information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.\nNO WARRANTY. Discloser warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information is\nprovided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\nRETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser’s written request, provided, however, Recipient shall destroy such information if and to the extent it has been been\nincorporated with Confidential Information of Recipient.\nNO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\nENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be amended except by the written agreement signed by authorized representatives of\nboth parties. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of\nlaw relating to conflict of laws. The parties to this Agreement hereby consent to jurisdiction and venue in the Courts of the State of California\nand in the U.S. District Courts in the City of San Jose, California.\nUnderstood and agreed:\nFor: InterTrust Technologies\nCorporation\n/s/  Patrick Nguyen\n07/08/02\nBy: (Signature)\nDate\nPatrick Nguyen, Executive Vice\nPresident\nPrinted Name and Title\nFor: Koninklijke Philips Electronics N.V.\n/s/  Ivo P.J. Verheijden 07/08/02\nBy (Signature) Date\nIvo P.J. Verheijden, Associate General Counsel\nPrinted Name and Title	EX-99.(D)(3)(B) 15 dex99d3b.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(B)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the "Agreement") is entered into and is effective as of July 8, 2002 (the "Effective Date") by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n("InterTrust") and Koninklijke Philips Electronics N.V., a Netherlands corporation, with a place of business at The Breitner Tower, Amstelplein,\n1096 HA Amsterdam, The Netherlands ("Company.").\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, nterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential ("Confidential Information"); provided that information disclosed by the disclosing party ("Discloser") will be\nconsidered Confidential Information by the receiving party ("Recipient"), only if such information is conspicuously marked as "Confidential"\nif communicated in writing, or if communicated orally, identified as "Confidential" at time of disclosure. If the Discloser fails to mark or\nidentify disclosed Confidential Information as "Confidential", the Recipient shall be responsible for protecting such disclosures in accordance\nwith\nthis\nAgreement from the date of receipt of written notice by the Discloser identifying the disclosure as "Confidential" and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe\ndate such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty's respective business, strategies, technologies, intellectual property, and related information.\n2.\nNON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use the same degree of care that it uses to protect its own confidential and proprietary information of similar importance\n(but no event less than reasonable care) to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information.\nCompany may disclose the Confidential Information only to its employees and any direct or indirect parent, majority-owned subsidiary or\nAffiliate, and their employees, agents and professional advisors, provided that such party agrees to be bound by this Agreement to the same\nextent as Company is bound and Company agrees to be responsible for any breach by these entities, agents and advisors. Affiliate shall mean\nany entity with more than 50% of its equity owned or controlled directly or indirectly by Koninklijke Philips Electronics N.V. The purpose\nof\ndisclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to evaluate and comment upon certain\nConfidential Information so as to enable the Recipient to evaluate a potential business relationship or strategic transaction between Recipient\nand\nDiscloser (the "Purpose"). Recipient agrees not to use Confidential Information otherwise for its own or any third party's benefit for any\npurpose whatsoever, other than the Purpose, without the prior written approval of an authorized representative of Discloser in each instance.\nRecipient may disclose Confidential Information if required by any judicial or governmental request, requirement or order; provided that\nRecipient will take reasonable steps to notify Discloser of\nInitials:\n1\nsuch request or order and provides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) Recipient agrees that without the Discloser's prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has received\nConfidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient and the\nDiscloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel that\nsuch disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange rules,\nand the Recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\n3.\nOWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\n4.\nTERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient's duty to protect\nDiscloser's Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\n5.\nINDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser's information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser's Confidential Information.\n6.\nNO WARRANTY. Discloser warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information is\nprovided "AS IS" and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\n7.\nRETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidentia Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser's written request, provided, however, Recipient shall destroy such information if and to the extent it has been been\nincorporated with Confidential Information of Recipient\n8.\nNO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\n9.\nENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be amended except by the written agreement signed by authorized representatives of\nboth parties. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of\nlaw relating to conflict of laws. The parties to this Agreement hereby consent to jurisdiction and venue in the Courts of the State of California\nand in the U.S. District Courts in the City of San Jose, California.\n2\nUnderstood and agreed:\nFor: InterTrust Technologies\nFor: Koninklijke Philips Electronics N.V.\nCorporation\n/s/ Patrick Nguyen\n/s/ Ivo P.J. Verheijden\n07/08/02\n07/08/02\nBy: (Signature)\nBy (Signature)\nDate\nDate\nPatrick Nguyen, Executive Vice\nIvo P.J. Verheijden, Associate General Counsel\nPresident\nPrinted Name and Title\nPrinted Name and Title\n3	EX-99.(D)(3)(B) 15 dex99d3b.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(B)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of July 8, 2002 (the “Effective Date”) by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n(“InterTrust”) and Koninklijke Philips Electronics N.V., a Netherlands corporation, with a place of business at The Breitner Tower, Amstelplein,\n1096 HA Amsterdam, The Netherlands (“Company”).\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential (“Confidential Information”); provided that information disclosed by the disclosing party (“Discloser”) will be\nconsidered Confidential Information by the receiving party (“Recipient”), only if such information is conspicuously marked as “Confidential”\nif communicated in writing, or if communicated orally, identified as “Confidential” at time of disclosure. If the Discloser fails to mark or\nidentify disclosed Confidential Information as “Confidential”, the Recipient shall be responsible for protecting such disclosures in accordance\nwith this Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as “Confidential” and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty’s respective business, strategies, technologies, intellectual property, and related information.\n2. NON -DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use the same degree of care that it uses to protect its own confidential and proprietary information of similar importance\n(but no event less than reasonable care) to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information.\nCompany may disclose the Confidential Information only to its employees and any direct or indirect parent, majority-owned subsidiary or\nAffiliate, and their employees, agents and professional advisors, provided that such party agrees to be bound by this Agreement to the same\nextent as Company is bound and Company agrees to be responsible for any breach by these entities, agents and advisors. Affiliate shall mean\nany entity with more than 50% of its equity owned or controlled directly or indirectly by Koninklijke Philips Electronics N.V. The purpose of\ndisclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to evaluate and comment upon certain\nConfidential Information so as to enable the Recipient to evaluate a potential business relationship or strategic transaction between Recipient\nand Discloser (the “Purpose”). Recipient agrees not to use Confidential Information otherwise for its own or any third party’s benefit for any\npurpose whatsoever, other than the Purpose, without the prior written approval of an authorized representative of Discloser in each instance.\nRecipient may disclose Confidential Information if required by any judicial or governmental request, requirement or order; provided that\nRecipient will take reasonable steps to notify Discloser of\nInitials:\n/\n1\nsuch request or order and provides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) Recipient agrees that without the Discloser’s prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has received\nConfidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient and the\nDiscloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel that\nsuch disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange rules,\nand the Recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\n3. OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\n4. TERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient’s duty to protect\nDiscloser’s Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\n5. INDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser’s information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.\n6. NO WARRANTY. Discloser warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information is\nprovided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\n7. RETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser’s written request, provided, however, Recipient shall destroy such information if and to the extent it has been been\nincorporated with Confidential Information of Recipient.\n8. NO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\n9. ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be amended except by the written agreement signed by authorized representatives of\nboth parties. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of\nlaw relating to conflict of laws. The parties to this Agreement hereby consent to jurisdiction and venue in the Courts of the State of California\nand in the U.S . District Courts in the City of San Jose, California.\n2\nUnderstood and agreed:\nFor: InterTrust Technologies\nCorporation\nFor: Koninklijke Philips Electronics N.V.\n/s/ Patrick Nguyen\n07/08/02\n/s/ Ivo P.J. Verheijden\n07/08/02\nBy: (Signature)\nDate\nBy (Signature)\nDate\nPatrick Nguyen, Executive Vice\nPresident\nIvo P.J. Verheijden, Associate General Counsel\nPrinted Name and Title\nPrinted Name and Title\n3
dc0cd1d5b1e42154db08a4f906cb4fe0.pdf	effective_date jurisdiction party term	EX-10.3 4 dex103.htm FORM OF NON-DISCLOSURE AND NON-COMPETITION AGREEMENT FOR\nDIRECTORS AND ABOVE\nExhibit 10.3\nNON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nDirector and Above\nCONVERGYS CORPORATION and its subsidiaries and related entities, including but not limited to Convergys Customer Management\nGroup Inc. and Convergys Information Management Group Inc. and their related entities (collectively, the “Company”), is headquartered in\nCincinnati, Ohio. Employees or promoted employees of the Company are being required to sign these agreements (“Agreement”) as part of the\nCompany’s efforts to protect its property, goodwill, and competitive position. In consideration of employment, promotion, the payment of cash, or\nthe award of equity by the Company, the employee (“Employee”) entering into this Agreement agrees as follows:\n1. The Company is engaged in the information management, customer management, employee care, and collection industries within the United\nStates and worldwide. The Company markets its products and services throughout the United States and worldwide.\n2. The Company currently has three primary business segments: (i) Customer Care, which provides outsourced customer care services, and\nprofessional and consulting services to in-house customer care operations; (ii) Information Management, which provides billing and information\nsolutions; and (iii) Employee Care, which provides human resource business process outsourcing (HR BPO) solutions. The Company develops and\nutilizes technology, models, programs, data, research and development, concepts, goodwill, customer relationships, training, and trade secrets. The\nsuccess of the Company and each of its employees is directly predicated on the protection of its knowledge and information. Employee\nacknowledges that in the course of employment with the Company, Employee will be entrusted with, have access to and obtain intimate, detailed,\nand comprehensive knowledge of confidential and/or proprietary information (“Information”), including information or financial information\nconcerning: (i) the Company’s processes, practices and procedures; (ii) the Company’s customers, suppliers and employees; (iii) the Company’s\nadvertising and marketing plans; (iv) the Company’s strategies, plans, goals, projections, and objectives; (v) the Company’s research and\ndevelopment activities and initiatives; (vi) the strengths and weaknesses of the Company’s products or services; (vii) the costs, profit margins, and\npricing associated with the Company’s products or services; (viii) the Company’s sales strategies, including the manner in which it responds to client\nrequests and requests for information or requests for proposals; (ix) the Company’s business, including budgets and margin information, and\n(10) matters considered confidential by the Company, its customers, or suppliers, including information considered confidential by such customers’\nor suppliers’ customers, vendors, or other third-party providers, and any information of a third party that the Company designates as confidential\n(e.g ., third-party information accessed or used by Employee during his/her employment). Employee agrees that the Information is highly valuable\nand provides a competitive advantage to the Company. Employee further agrees that, given the United States and worldwide markets in which the\nCompany competes, confidentiality of the Information is necessary without regard to any geographic limitation.\n3. Both during and after Employee’s employment with the Company, Employee agrees to retain the Information in absolute confidence and not\nto use or permit access to or disclose the Information to any person or organization, except as required for Employee to perform Employee’s job with\nthe Company. Upon termination of employment with the Company for any reason, Employee agrees to return to the Company, its successors or\nassigns all\nConvergys Corporation - Confidential and Proprietary\nInformation in tangible form, all devices, computer disks or other electronic or magnetic storage media, records, data, proposals, lists, specifications,\ndrawings, sketches, materials, equipment, other documents or property together with all copies (in whatever medium recorded).\n4. Employee recognizes the need of the Company to prevent unfair competition and to protect the Company’s legitimate business interests.\nAccordingly, Employee agrees that, during Employee’s employment and for a period of two years following Employee’s termination or separation\n(for any reason), Employee will not accept employment or engage in any business activity (whether as a principal, partner, joint venturer, agent,\nemployee, salesperson, consultant, independent contractor, director or officer) with a “Competitor” of the Company where such employment would\ninvolve Employee:\n(i) providing, selling or attempting to sell, or assisting in the sale or attempted sale of, any services or products similar to those services\nor products with which Employee had any involvement or Information during Employee’s employment with the Company (including\nany products or services being researched or developed by the Company during Employee’s employment with the Company); or\n(ii) providing or performing services that are similar to any services that Employee provided to or performed for the Company during\nEmployee’s employment with the Company.\nFor purposes of this provision, a “Competitor” is any business or entity that, at any time during the two-year period following Employee’s\ntermination or separation, provides or seeks to provide, any products or services (including those being researched or developed) similar to or related\nto any products sold or any services provided by the Company or with which Employee had any involvement or Information at any time during\nEmployee’s employment with the Company (including those services or products being researched or developed during Employee’s employment\nwith the Company). “Competitor” includes, without limitation, any company or business that:\n(i) provides outsourced billing and information services and/or software to third parties (including but not limited to all segments of the\ncommunications industry, such as wireless, wireline, cable, cable telephony, broadband, direct broadcast satellite and the Internet);\n(ii) provides outsourced customer management and/or customer care services (including but not limited to customer service; offshore\ncapabilities; business process outsourcing; customer retention; direct response; technical support services; B2B sales and marketing\nservices; consumer sales and marketing services; back-office services; and collection services/accounts receivable management);\n(iii) provides outsourced HR business process outsourcing services (including but not limited to (i) recruiting and resourcing,\n(ii) compensation, (iii) human\nConvergys Corporation - Confidential and Proprietary\n2\nresource administration, (iv) payroll administration, (v) benefits administration, (vi) organizational development, (vii) learning, and\n(viii) business intelligence;\n(iv) is identified by the Company as a competitor in any of the Company’s public filings with the Securities and Exchange Commission;\nor\n(v) is a customer .of the Company where Employee’s position with such customer would involve or relate to the services or products that\nthe Company does or did provide to such customer.\nThis restriction will be limited to the geographical area where the Company is doing business and the geographic area where the Company\nmarkets its products and/or services at the time of termination of Employee’s employment.\n5. During Employee’s employment and for a period of two years following Employee’s termination or separation from the Company for any\nreason, Employee will not directly or indirectly, through any person or entity, communicate with (i) any of the Company’s customers from which the\nCompany generated revenue during the two years preceding Employee’s termination or separation; or (ii) any prospective customers known to\nEmployee during the two-year period prior to Employee’s termination or separation, for the purpose or intention of attempting to sell any\nCompetitor’s products or services or attempting to divert business from said customer or prospective customer away from the Company.\n6. In the event Employee is uncertain as to the application of this Agreement to any contemplated employment opportunity or business activity,\nEmployee agrees to inquire in writing of the Company’s General Counsel, specifying the contemplated opportunity or activity. The Company will\nattempt to respond within ten (10) business days following receipt of said writing. In no event will the Company’s failure to respond within ten\nbusiness days constitute a waiver of any of the provisions of this Agreement.\n7. All ideas, inventions, discoveries, concepts, trademarks and other developments or improvements, whether patentable or not, conceived by\nEmployee, alone or with others, at any time during Employee’s employment, whether or not during working hours or on the Company’s premises,\nthat are within the scope of or related to the business operations of the Company (“New Developments”), shall be and remain the exclusive property\nof the Company. Employee shall do all things reasonably necessary to ensure ownership of such New Developments by Company, including the\nexecution of documents assigning and transferring to the Company all of Employee’s rights, title and interest in and to such New Developments, and\nthe execution of all documents required to enable the Company to file and obtain patents, trademarks, and copyrights in the United States and.\nforeign countries on any of such New Developments. Employee agrees to make prompt written disclosure to the Company, to hold in trust for the\nsole right and benefit of the Company, and hereby assigns to the Company all right, title and interest in and to any ideas, inventions, original works\nof authorship (published or not), developments, improvements or trade secrets that Employee may solely or jointly conceive or reduce to practice, or\ncause to be conceived or reduced to practice, during employment with the Company. Employee acknowledges that all original works of authorship\nthat are made by Employee (solely or jointly with others) within the scope of Employee’s employment and that are protectable by\nConvergys Corporation - Confidential and Proprietary\n3\ncopyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 U.S .C., Section 101). Employee agrees to keep\nand maintain adequate records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all New\nDevelopments, which records shall be available to and remain the sole property of the Company.\n8. Employee agrees not to disparage or act in any manner that may damage the business of the Company or that would adversely affect the\ngoodwill, reputation, and business relationship of the Company with the public generally, or with any of its customers, suppliers or employees. This\nprovision is not intended to prohibit competition not otherwise restricted by this Agreement.\n9. Employee will not, directly or indirectly, attempt to or actually induce, persuade, or entice any: (i) Company employee, for a period of two\nyears following Employee’s termination or separation (for any reason), to terminate such person’s employment relationship with the Company or\naccept employment with a Competitor; or (ii) current or former Company employee, without limitation, to violate any of such person’s non-compete\nand/or non-solicitation and/or non-disclosure and/or non-disparagement agreements) with the Company.\n10. During Employee’s employment by the Company and for a period of two years following Employee’s termination or separation (for any\nreason), Employee will, before accepting an offer of employment from any person or entity, provide such person or entity a copy of this Agreement.\n11. Employee represents that Employee is not bound by any agreement or other duty to a former employer or any other party that would\nprevent Employee from complying with any obligations hereunder.\n12. Employee further agrees and consents that this Agreement and the rights, duties, and obligations contained in it may be and are fully\ntransferable and/or assignable by the Company, and shall be binding upon and inure to the benefit of the Company’s successors, transferees, or\nassigns.\n13. Employee further agrees that any breach or threatened breach of this Agreement would result in material damage and immediate and\nirreparable harm to the Company. Employee further agrees that any breach of the covenant not to compete described herein would result in the\ninevitable disclosure of Company’s confidential, proprietary and trade secret Information. Employee therefore agrees that the Company, in addition\nto any other rights and remedies available to it, shall be entitled to obtain an immediate injunction, whether temporary, preliminary, or permanent, in\nthe event of any such breach or threatened breach by Employee. Employee acknowledges that the prohibitions and obligations contained in this\nAgreement are reasonable and do not prevent Employee’s ability to use Employee’s general abilities and skills to obtain gainful employment.\nTherefore, Employee agrees that Employee will not sustain monetary damages in the event that Company obtains a temporary, preliminary or\npermanent injunction to enforce this Agreement.\nConvergys Corporation - Confidential and Proprietary\n4\n14. Employee understands and acknowledges that the Company is incorporated, has its headquarters, and conducts substantial business and\noperations in the State of Ohio. Accordingly, Employee agrees that this Agreement shall be governed by the laws of the State of Ohio, without\ngiving effect to any conflict of law provisions. Employee further voluntarily consents and agrees that the state or federal courts located in Hamilton\nCounty, Ohio: (i) must be utilized solely and exclusively to hear any action arising out of or relating to this Agreement; and (ii) are a proper venue\nfor any such action and said courts can appropriately exercise personal jurisdiction over Employee for any such action.\n15. This Agreement supersedes and replaces any prior Non-Disclosure and Non-competition Agreement(s) (or Non-Disclosure Agreement(s)).\nTo the extent that any portion of this Agreement is deemed unenforceable as to the application to specific facts and circumstances, such portion may,\nwithout invalidating the remainder of the Agreement, be modified to the limited extent necessary to cure such unenforceability. Where a curing\nmodification would be ineffective, related portions of Employee’s prior agreement(s) (in order of recency) will be deemed substituted as to the\nspecific facts and circumstances at issue.\n16. This Agreement does not obligate Company to employ Employee for any period of time.\nEMPLOYEE\nDate:\nSignature\nType or Print Name\nConvergys Corporation - Confidential and Proprietary\n5	EX-10.3 4 dex103.htm FORM OF NON-DISCLOSURE AND NON-COMPETITION AGREEMENT FOR\nDIRECTORS AND ABOVE\nExhibit 10.3\nNON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nDirector and Above\nCONVERGYS CORPORATION and its subsidiaries and related entities, including but not limited to Convergys Customer Management\nGroup Inc. and Convergys Information Management Group Inc. and their related entities (collectively, the “Company”), is headquartered in\nCincinnati, Ohio. Employees or promoted employees of the Company are being required to sign these agreements (“Agreement”) as part of the\nCompany’s efforts to protect its property, goodwill, and competitive position. In consideration of employment, promotion, the payment of cash, or\nthe award of equity by the Company, the employee (“Employee™) entering into this Agreement agrees as follows:\n1. The Company is engaged in the information management, customer management, employee care, and collection industries within the United\nStates and worldwide. The Company markets its products and services throughout the United States and worldwide.\n2. The Company currently has three primary business segments: (i) Customer Care, which provides outsourced customer care services, and\nprofessional and consulting services to in-house customer care operations; (ii) Information Management, which provides billing and information\nsolutions; and (iii) Employee Care, which provides human resource business process outsourcing (HR BPO) solutions. The Company develops and\nutilizes technology, models, programs, data, research and development, concepts, goodwill, customer relationships, training, and trade secrets. The\nsuccess of the Company and each of its employees is directly predicated on the protection of its knowledge and information. Employee\nacknowledges that in the course of employment with the Company, Employee will be entrusted with, have access to and obtain intimate, detailed,\nand comprehensive knowledge of confidential and/or proprietary information (“Information”), including information or financial information\nconcerning: (i) the Company’s processes, practices and procedures; (ii) the Company’s customers, suppliers and employees; (iii) the Company’s\nadvertising and marketing plans; (iv) the Company’s strategies, plans, goals, projections, and objectives; (v) the Company’s research and\ndevelopment activities and initiatives; (vi) the strengths and weaknesses of the Company’s products or services; (vii) the costs, profit margins, and\npricing associated with the Company’s products or services; (viii) the Company’s sales strategies, including the manner in which it responds to client\nrequests and requests for information or requests for proposals; (ix) the Company’s business, including budgets and margin information, and\n(10) matters considered confidential by the Company, its customers, or suppliers, including information considered confidential by such customers’\nor suppliers’ customers, vendors, or other third-party providers, and any information of a third party that the Company designates as confidential\n(e.g., third-party information accessed or used by Employee during his/her employment). Employee agrees that the Information is highly valuable\nand provides a competitive advantage to the Company. Employee further agrees that, given the United States and worldwide markets in which the\nCompany competes, confidentiality of the Information is necessary without regard to any geographic limitation.\n3. Both during and after Employee’s employment with the Company, Employee agrees to retain the Information in absolute confidence and not\nto use or permit access to or disclose the Information to any person or organization, except as required for Employee to perform Employee’s job with\nthe Company. Upon termination of employment with the Company for any reason, Employee agrees to return to the Company, its successors or\nassigns all\nConvergys Corporation - Confidential and Proprietary\nInformation in tangible form, all devices, computer disks or other electronic or magnetic storage media, records, data, proposals, lists, specifications,\ndrawings, sketches, materials, equipment, other documents or property together with all copies (in whatever medium recorded).\n4. Employee recognizes the need of the Company to prevent unfair competition and to protect the Company’s legitimate business interests.\nAccordingly, Employee agrees that, during Employee’s employment and for a period of two years following Employee’s termination or separation\n(for any reason), Employee will not accept employment or engage in any business activity (whether as a principal, partner, joint venturer, agent,\nemployee, salesperson, consultant, independent contractor, director or officer) with a “Competitor” of the Company where such employment would\ninvolve Employee:\n(i) providing, selling or attempting to sell, or assisting in the sale or attempted sale of, any services or products similar to those services\nor products with which Employee had any involvement or Information during Employee’s employment with the Company (including\nany products or services being researched or developed by the Company during Employee’s employment with the Company); or\n(ii) providing or performing services that are similar to any services that Employee provided to or performed for the Company during\nEmployee’s employment with the Company.\nFor purposes of this provision, a “Competitor” is any business or entity that, at any time during the two-year period following Employee’s\ntermination or separation, provides or seeks to provide, any products or services (including those being researched or developed) similar to or related\nto any products sold or any services provided by the Company or with which Employee had any involvement or Information at any time during\nEmployee’s employment with the Company (including those services or products being researched or developed during Employee’s employment\nwith the Company). “Competitor” includes, without limitation, any company or business that:\n(i) provides outsourced billing and information services and/or software to third parties (including but not limited to all segments of the\ncommunications industry, such as wireless, wireline, cable, cable telephony, broadband, direct broadcast satellite and the Internet);\n(ii) provides outsourced customer management and/or customer care services (including but not limited to customer service; offshore\ncapabilities; business process outsourcing; customer retention; direct response; technical support services; B2B sales and marketing\nservices; consumer sales and marketing services; back-office services; and collection services/accounts receivable management);\n(iii) provides outsourced HR business process outsourcing services (including but not limited to (i) recruiting and resourcing,\n(ii) compensation, (iii) human\nConvergys Corporation - Confidential and Proprietary\n2\nresource administration, (iv) payroll administration, (v) benefits administration, (vi) organizational development, (vii) learning, and\n(viii) business intelligence;\n(iv) is identified by the Company as a competitor in any of the Company’s public filings with the Securities and Exchange Commission;\nor\n(v) is a customer .of the Company where Employee’s position with such customer would involve or relate to the services or products that\nthe Company does or did provide to such customer.\nThis restriction will be limited to the geographical area where the Company is doing business and the geographic area where the Company\nmarkets its products and/or services at the time of termination of Employee’s employment.\n5. During Employee’s employment and for a period of two years following Employee’s termination or separation from the Company for any\nreason, Employee will not directly or indirectly, through any person or entity, communicate with (i) any of the Company’s customers from which the\nCompany generated revenue during the two years preceding Employee’s termination or separation; or (ii) any prospective customers known to\nEmployee during the two-year period prior to Employee’s termination or separation, for the purpose or intention of attempting to sell any\nCompetitor’s products or services or attempting to divert business from said customer or prospective customer away from the Company.\n6. In the event Employee is uncertain as to the application of this Agreement to any contemplated employment opportunity or business activity,\nEmployee agrees to inquire in writing of the Company’s General Counsel, specifying the contemplated opportunity or activity. The Company will\nattempt to respond within ten (10) business days following receipt of said writing. In no event will the Company’s failure to respond within ten\nbusiness days constitute a waiver of any of the provisions of this Agreement.\n7. All ideas, inventions, discoveries, concepts, trademarks and other developments or improvements, whether patentable or not, conceived by\nEmployee, alone or with others, at any time during Employee’s employment, whether or not during working hours or on the Company’s premises,\nthat are within the scope of or related to the business operations of the Company (“New Developments”), shall be and remain the exclusive property\nof the Company. Employee shall do all things reasonably necessary to ensure ownership of such New Developments by Company, including the\nexecution of documents assigning and transferring to the Company all of Employee’s rights, title and interest in and to such New Developments, and\nthe execution of all documents required to enable the Company to file and obtain patents, trademarks, and copyrights in the United States and.\nforeign countries on any of such New Developments. Employee agrees to make prompt written disclosure to the Company, to hold in trust for the\nsole right and benefit of the Company, and hereby assigns to the Company all right, title and interest in and to any ideas, inventions, original works\nof authorship (published or not), developments, improvements or trade secrets that Employee may solely or jointly conceive or reduce to practice, or\ncause to be conceived or reduced to practice, during employment with the Company. Employee acknowledges that all original works of authorship\nthat are made by Employee (solely or jointly with others) within the scope of Employee’s employment and that are protectable by\nConvergys Corporation - Confidential and Proprietary\n3\ncopyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 U.S.C., Section 101). Employee agrees to keep\nand maintain adequate records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all New\nDevelopments, which records shall be available to and remain the sole property of the Company.\n8. Employee agrees not to disparage or act in any manner that may damage the business of the Company or that would adversely affect the\ngoodwill, reputation, and business relationship of the Company with the public generally, or with any of its customers, suppliers or employees. This\nprovision is not intended to prohibit competition not otherwise restricted by this Agreement.\n9. Employee will not, directly or indirectly, attempt to or actually induce, persuade, or entice any: (i) Company employee, for a period of two\nyears following Employee’s termination or separation (for any reason), to terminate such person’s employment relationship with the Company or\naccept employment with a Competitor; or (ii) current or former Company employee, without limitation, to violate any of such person’s non-compete\nand/or non-solicitation and/or non-disclosure and/or non-disparagement agreements) with the Company.\n10. During Employee’s employment by the Company and for a period of two years following Employee’s termination or separation (for any\nreason), Employee will, before accepting an offer of employment from any person or entity, provide such person or entity a copy of this Agreement.\n11. Employee represents that Employee is not bound by any agreement or other duty to a former employer or any other party that would\nprevent Employee from complying with any obligations hereunder.\n12. Employee further agrees and consents that this Agreement and the rights, duties, and obligations contained in it may be and are fully\ntransferable and/or assignable by the Company, and shall be binding upon and inure to the benefit of the Company’s successors, transferees, or\nassigns.\n13. Employee further agrees that any breach or threatened breach of this Agreement would result in material damage and immediate and\nirreparable harm to the Company. Employee further agrees that any breach of the covenant not to compete described herein would result in the\ninevitable disclosure of Company’s confidential, proprietary and trade secret Information. Employee therefore agrees that the Company, in addition\nto any other rights and remedies available to it, shall be entitled to obtain an immediate injunction, whether temporary, preliminary, or permanent, in\nthe event of any such breach or threatened breach by Employee. Employee acknowledges that the prohibitions and obligations contained in this\nAgreement are reasonable and do not prevent Employee’s ability to use Employee’s general abilities and skills to obtain gainful employment.\nTherefore, Employee agrees that Employee will not sustain monetary damages in the event that Company obtains a temporary, preliminary or\npermanent injunction to enforce this Agreement.\nConvergys Corporation - Confidential and Proprietary\n4\n14. Employee understands and acknowledges that the Company is incorporated, has its headquarters, and conducts substantial business and\noperations in the State of Ohio. Accordingly, Employee agrees that this Agreement shall be governed by the laws of the State of Ohio, without\ngiving effect to any conflict of law provisions. Employee further voluntarily consents and agrees that the state or federal courts located in Hamilton\nCounty, Ohio: (i) must be utilized solely and exclusively to hear any action arising out of or relating to this Agreement; and (ii) are a proper venue\nfor any such action and said courts can appropriately exercise personal jurisdiction over Employee for any such action.\n15. This Agreement supersedes and replaces any prior Non-Disclosure and Non-competition Agreement(s) (or Non-Disclosure Agreement(s)).\nTo the extent that any portion of this Agreement is deemed unenforceable as to the application to specific facts and circumstances, such portion may,\nwithout invalidating the remainder of the Agreement, be modified to the limited extent necessary to cure such unenforceability. Where a curing\nmodification would be ineffective, related portions of Employee’s prior agreement(s) (in order of recency) will be deemed substituted as to the\nspecific facts and circumstances at issue.\n16. This Agreement does not obligate Company to employ Employee for any period of time.\nEMPLOYEE\nDate: Signature\nType or Print Name\nConvergys Corporation - Confidential and Proprietary\n5	EX-10.3 4 dex103.htm FORM OF NON-DISCLOSURE AND NON-COMPETITION AGREEMENT FOR\nDIRECTORS AND ABOVE\nExhibit 10.3\nNON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nDirector and Above\nCONVERGYS CORPORATION and its subsidiaries and related entities, including but not limited to Convergys Customer Management\nGroup Inc. and Convergys Information Management Group Inc. and their related entities (collectively, the "Company"), is headquartered in\nCincinnati, Ohio. Employees or promoted employees of the Company are being required to sign these agreements ("Agreement") as part of the\nCompany's efforts to protect its property, goodwill, and competitive position. In consideration of employment, promotion, the payment of cash, or\nthe award of equity by the Company, the employee ("Employee") entering into this Agreement agrees as follows:\n1.\nThe Company is engaged in the information management, customer management, employee care, and collection industries within the United\nStates and worldwide. The Company markets its products and services throughout the United States and worldwide.\n2. The Company currently has three primary business segments: (i) Customer Care, which provides outsourced customer care services, and\nprofessional and consulting services to in-house customer care operations; (ii) Information Management, which provides billing and information\nsolutions; and (iii) Employee Care, which provides human resource business process outsourcing (HR BPO) solutions. The Company develops\nand\nutilizes technology, models, programs, data, research and development, concepts, goodwill, customer relationships, training, and trade secrets. The\nsuccess of the Company and each of its employees is directly predicated on the protection of its knowledge and information. Employee\nacknowledges that in the course of employment with the Company, Employee will be entrusted with, have access to and obtain intimate, detailed,\nand comprehensive knowledge of confidential and/or proprietary information ("Information"), including information or financial information\nconcerning: (i) the Company's processes, practices and procedures; (ii) the Company's customers, suppliers and employees; (iii) the Company's\nadvertising and marketing plans; (iv) the Company's strategies, plans, goals, projections, and objectives; (v) the Company's research and\ndevelopment activities and initiatives; (vi) the strengths and weaknesses of the Company's products or services; (vii) the costs, profit margins,\nand\npricing associated with the Company's products or services; (viii) the Company's sales strategies, including the manner in which it responds\nto\nclient\nrequests and requests for information or requests for proposals; (ix) the Company's business, including budgets and margin information, and\n(10) matters considered confidential by the Company, its customers, or suppliers, including information considered confidential by such customers'\nor suppliers' customers, vendors, or other third-party providers, and any information of a third party that the Company designates as confidential\n(e.g., third-party information accessed or used by Employee during his/her employment). Employee agrees that the Information is highly valuable\nand provides a competitive advantage to the Company. Employee further agrees that, given the United States and worldwide markets in which\nthe\nCompany competes, confidentiality of the Information is necessary without regard to any geographic limitation.\n3. Both during and after Employee's employment with the Company, Employee agrees to retain the Information in absolute confidence and not\nto\nuse\nor\npermit access to or disclose the Information to any person or organization, except as required for Employee to perform Employee's job\nwith\nthe Company. Upon termination of employment with the Company for any reason, Employee agrees to return to the Company, its successors or\nassigns all\nConvergys Corporation Confidential and Proprietary\nInformation in tangible form, all devices, computer disks or other electronic or magnetic storage media, records, data, proposals, lists, specifications,\ndrawings, sketches, materials, equipment, other documents or property together with all copies (in whatever medium recorded).\n4. Employee recognizes the need of the Company to prevent unfair competition and to protect the Company's legitimate business interests.\nAccordingly, Employee agrees that, during Employee's employment and for a period of two years following Employee's termination or separation\n(for any reason), Employee will not accept employment or engage in any business activity (whether as a principal, partner, joint venturer, agent,\nemployee, salesperson, consultant, independent contractor, director or officer) with a "Competitor" of the Company where such employment would\ninvolve Employee:\n(i) providing, selling or attempting to sell, or assisting in the sale or attempted sale of, any services or products similar to those services\nor products with which Employee had any involvement or Information during Employee's employment with the Company (including\nany products or services being researched or developed by the Company during Employee's employment with the Company);\nor\n(ii) providing or performing services that are similar to any services that Employee provided to or performed for the Company during\nEmployee's employment with the Company.\nFor purposes of this provision, a "Competitor" is any business or entity that, at any time during the two-year period following Employee's\ntermination or separation, provides or seeks to provide, any products or services (including those being researched or developed) similar to or related\nto\nany products sold or any services provided by the Company or with which Employee had any involvement or Information at any time during\nEmployee's employment with the Company (including those services or products being researched or developed during Employee's employment\nwith the Company). "Competitor" includes, without limitation, any company or business that:\n(i)\nprovides outsourced billing and information services and/or software to third parties (including but not limited to all segments of the\ncommunications industry, such as wireless, wireline, cable, cable telephony, broadband, direct broadcast satellite and the Internet);\n(ii) provides outsourced customer management and/or customer care services (including but not limited to customer service; offshore\ncapabilities; business process outsourcing; customer retention; direct response; technical support services; B2B sales and marketing\nservices; consumer sales and marketing services; back-office services; and collection services/accounts receivable management);\n(iii) provides outsourced HR business process outsourcing services (including but not limited to (i) recruiting and resourcing,\n(ii) compensation, (iii) human\nConvergys Corporation - Confidentia and Proprietary\n2\nresource administration, (iv) payroll administration, (v) benefits administration, (vi) organizational development, (vii) learning,\nand\n(viii) business intelligence;\n(iv) is identified by the Company as a competitor in any of the Company's public filings with the Securities and Exchange Commission;\nor\n(v) is a customer .of the Company where Employee's position with such customer would involve or relate to the services or products that\nthe Company does or did provide to such customer.\nThis restriction will be limited to the geographical area where the Company is doing business and the geographic area where the Company\nmarkets its products and/or services at the time of termination of Employee's employment.\n5.\nDuring Employee's employment and for a period of two years following Employee's termination or separation from the Company for any\nreason, Employee will not directly or indirectly, through any person or entity, communicate with (i) any of the Company's customers from which the\nCompany generated revenue during the two years preceding Employee's termination or separation; or (ii) any prospective customers known to\nEmployee during the two-year period prior to Employee's termination or separation, for the purpose or intention of attempting to sell any\nCompetitor's products or services or attempting to divert business from said customer or prospective customer away from the Company.\n6. In the event Employee is uncertain as to the application of this Agreement to any contemplated employment opportunity or business activity,\nEmployee agrees to inquire in writing of the Company's General Counsel, specifying the contemplated opportunity or activity. The Company will\nattempt to respond within ten (10) business days following receipt of said writing. In no event will the Company's failure to respond within ten\nbusiness days constitute a waiver of any of the provisions of this Agreement.\n7.\nAll ideas, inventions, discoveries, concepts, trademarks and other developments or improvements, whether patentable or not, conceived by\nEmployee,\nalone or with others, at any time during Employee's employment, whether or not during working hours or on the Company's premises,\nthat are within the scope of or related to the business operations of the Company ("New Developments"), shall be and remain the exclusive property\nof the Company. Employee shall do all things reasonably necessary to ensure ownership of such New Developments by Company, including the\nexecution of documents assigning and transferring to the Company all of Employee's rights, title and interest in and to such New Developments, and\nthe execution of all documents required to enable the Company to file and obtain patents, trademarks, and copyrights in the United States and.\nforeign countries on any of such New Developments. Employee agrees to make prompt written disclosure to the Company, to hold in trust for the\nsole right and benefit of the Company, and hereby assigns to the Company all right, title and interest in and to any ideas, inventions, original works\nof authorship (published or not), developments, improvements or trade secrets that Employee may solely or jointly conceive or reduce to practice, or\ncause to be conceived or reduced to practice, during employment with the Company. Employee acknowledges that all original works of authorship\nthat are made by Employee (solely or jointly with others) within the scope of Employee's employment and that are protectable by\nConvergys Corporation - Confidential and Proprietary\n3\ncopyright are "works made for hire," as that term is defined in the United States Copyright Act (17 U.S.C., Section 101). Employee agrees to keep\nand maintain adequate records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all New\nDevelopments, which records shall be available to and remain the sole property of the Company.\n8.\nEmployee agrees not to disparage or act in any manner that may damage the business of the Company or that would adversely affect the\ngoodwill, reputation, and business relationship of the Company with the public generally, or with any of its customers, suppliers or employees. This\nprovision is not intended to prohibit competition not otherwise restricted by this Agreement.\n9. Employee will not, directly or indirectly, attempt to or actually induce, persuade, or entice any: (i) Company employee, for a period of two\nyears following Employee's termination or separation (for any reason), to terminate such person's employment relationship with the Company or\naccept employment with a Competitor; or (ii) current or former Company employee, without limitation, to violate any of such person's non-compete\nand/or non-solicitation and/or non-disclosure and/or non-disparagement agreements) with the Company.\n10. During Employee's employment by the Company and for a period of two years following Employee's termination or separation (for any\nreason), Employee will, before accepting an offer of employment from any person or entity, provide such person or entity a copy of this Agreement.\n11. Employee represents that Employee is not bound by any agreement or other duty to a former employer or any other party that would\nprevent Employee from complying with any obligations hereunder.\n12. Employee further agrees and consents that this Agreement and the rights, duties, and obligations contained in it may be and are fully\ntransferable and/or assignable by the Company, and shall be binding upon and inure to the benefit of the Company's successors, transferees, or\nassigns.\n13. Employee further agrees that any breach or threatened breach of this Agreement would result in material damage and immediate and\nirreparable harm to the Company. Employee further agrees that any breach of the covenant not to compete described herein would result in the\ninevitable disclosure of Company's confidential, proprietary and trade secret Information. Employee therefore agrees that the Company, in addition\nto any other rights and remedies available to it, shall be entitled to obtain an immediate injunction, whether temporary, preliminary, or permanent, in\nthe event of any such breach or threatened breach by Employee. Employee acknowledges that the prohibitions and obligations contained in this\nAgreement are reasonable and do not prevent Employee's ability to use Employee's general abilities and skills to obtain gainful employment.\nTherefore, Employee agrees that Employee will not sustain monetary damages in the event that Company obtains a temporary, preliminary\nor\npermanent injunction to enforce this Agreement.\nConvergys Corporation Confidential and Proprietary\n4\n14. Employee understands and acknowledges that the Company is incorporated, has its headquarters, and conducts substantial business and\noperations in the State of Ohio. Accordingly, Employee agrees that this Agreement shall be governed by the laws of the State of Ohio, without\ngiving effect to any conflict of law provisions. Employee further voluntarily consents and agrees that the state or federal courts located in Hamilton\nCounty, Ohio: (i) must be utilized solely and exclusively to hear any action arising out of or relating to this Agreement; and (ii) are a proper venue\nfor any such action and said courts can appropriately exercise personal jurisdiction over Employee for any such action.\n15. This Agreement supersedes and replaces any prior Non-Disclosure and Non-competition Agreement(s) (or Non-Disclosure Agreement(s)).\nTo the extent that any portion of this Agreement is deemed unenforceable as to the application to specific facts and circumstances, such portion may,\nwithout invalidating the remainder of the Agreement, be modified to the limited extent necessary to cure such unenforceability. Where a curing\nmodification would be ineffective, related portions of Employee's prior agreement(s) (in order of recency) will be deemed substituted as to the\nspecific facts and circumstances at issue.\n16. This Agreement does not obligate Company to employ Employee for any period of time.\nEMPLOYEE\nDate:\nSignature\nType or Print Name\nConvergys Corporation - Confidential and Proprietary\n5	EX-10.3 4 dex103.htm FORM OF NON-DISCLOSURE AND NON-COMPETITION AGREEMENT FOR\nDIRECTORS AND ABOVE\nExhibit 10.3\nNON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nDirector and Above\nCONVERGYS CORPORATION and its subsidiaries and related entities, including but not limited to Convergys Customer Management\nGroup Inc. and Convergys Information Management Group Inc. and their related entities (collectively, the “Company”), is headquartered in\nCincinnati, Ohio. Employees or promoted employees of the Company are being required to sign these agreements (“Agreement”) as part of the\nCompany’s efforts to protect its property, goodwill, and competitive position. In consideration of employment, promotion, the payment of cash, or\nthe award of equity by the Company, the employee (“Employee”) entering into this Agreement agrees as follows:\n1. The Company is engaged in the information management, customer management, employee care, and collection industries within the United\nStates and worldwide. The Company markets its products and services throughout the United States and worldwide.\n2. The Company currently has three primary business segments: (i) Customer Care, which provides outsourced customer care services, and\nprofessional and consulting services to in-house customer care operations; (ii) Information Management, which provides billing and information\nsolutions; and (iii) Employee Care, which provides human resource business process outsourcing (HR BPO) solutions. The Company develops and\nutilizes technology, models, programs, data, research and development, concepts, goodwill, customer relationships, training, and trade secrets. The\nsuccess of the Company and each of its employees is directly predicated on the protection of its knowledge and information. Employee\nacknowledges that in the course of employment with the Company, Employee will be entrusted with, have access to and obtain intimate, detailed,\nand comprehensive knowledge of confidential and/or proprietary information (“Information”), including information or financial information\nconcerning: (i) the Company’s processes, practices and procedures; (ii) the Company’s customers, suppliers and employees; (iii) the Company’s\nadvertising and marketing plans; (iv) the Company’s strategies, plans, goals, projections, and objectives; (v) the Company’s research and\ndevelopment activities and initiatives; (vi) the strengths and weaknesses of the Company’s products or services; (vii) the costs, profit margins, and\npricing associated with the Company’s products or services; (viii) the Company’s sales strategies, including the manner in which it responds to client\nrequests and requests for information or requests for proposals; (ix) the Company’s business, including budgets and margin information, and\n(10) matters considered confidential by the Company, its customers, or suppliers, including information considered confidential by such customers’\nor suppliers’ customers, vendors, or other third-party providers, and any information of a third party that the Company designates as confidential\n(e.g ., third-party information accessed or used by Employee during his/her employment). Employee agrees that the Information is highly valuable\nand provides a competitive advantage to the Company. Employee further agrees that, given the United States and worldwide markets in which the\nCompany competes, confidentiality of the Information is necessary without regard to any geographic limitation.\n3. Both during and after Employee’s employment with the Company, Employee agrees to retain the Information in absolute confidence and not\nto use or permit access to or disclose the Information to any person or organization, except as required for Employee to perform Employee’s job with\nthe Company. Upon termination of employment with the Company for any reason, Employee agrees to return to the Company, its successors or\nassigns all\nConvergys Corporation - Confidential and Proprietary\nInformation in tangible form, all devices, computer disks or other electronic or magnetic storage media, records, data, proposals, lists, specifications,\ndrawings, sketches, materials, equipment, other documents or property together with all copies (in whatever medium recorded).\n4. Employee recognizes the need of the Company to prevent unfair competition and to protect the Company’s legitimate business interests.\nAccordingly, Employee agrees that, during Employee’s employment and for a period of two years following Employee’s termination or separation\n(for any reason), Employee will not accept employment or engage in any business activity (whether as a principal, partner, joint venturer, agent,\nemployee, salesperson, consultant, independent contractor, director or officer) with a “Competitor” of the Company where such employment would\ninvolve Employee:\n(i) providing, selling or attempting to sell, or assisting in the sale or attempted sale of, any services or products similar to those services\nor products with which Employee had any involvement or Information during Employee’s employment with the Company (including\nany products or services being researched or developed by the Company during Employee’s employment with the Company); or\n(ii) providing or performing services that are similar to any services that Employee provided to or performed for the Company during\nEmployee’s employment with the Company.\nFor purposes of this provision, a “Competitor” is any business or entity that, at any time during the two-year period following Employee’s\ntermination or separation, provides or seeks to provide, any products or services (including those being researched or developed) similar to or related\nto any products sold or any services provided by the Company or with which Employee had any involvement or Information at any time during\nEmployee’s employment with the Company (including those services or products being researched or developed during Employee’s employment\nwith the Company). “Competitor” includes, without limitation, any company or business that:\n(i) provides outsourced billing and information services and/or software to third parties (including but not limited to all segments of the\ncommunications industry, such as wireless, wireline, cable, cable telephony, broadband, direct broadcast satellite and the Internet);\n(ii) provides outsourced customer management and/or customer care services (including but not limited to customer service; offshore\ncapabilities; business process outsourcing; customer retention; direct response; technical support services; B2B sales and marketing\nservices; consumer sales and marketing services; back-office services; and collection services/accounts receivable management);\n(iii) provides outsourced HR business process outsourcing services (including but not limited to (i) recruiting and resourcing,\n(ii) compensation, (iii) human\nConvergys Corporation - Confidential and Proprietary\n2\nresource administration, (iv) payroll administration, (v) benefits administration, (vi) organizational development, (vii) learning, and\n(viii) business intelligence;\n(iv) is identified by the Company as a competitor in any of the Company’s public filings with the Securities and Exchange Commission;\nor\n(v) is a customer .of the Company where Employee’s position with such customer would involve or relate to the services or products that\nthe Company does or did provide to such customer.\nThis restriction will be limited to the geographical area where the Company is doing business and the geographic area where the Company\nmarkets its products and/or services at the time of termination of Employee’s employment.\n5. During Employee’s employment and for a period of two years following Employee’s termination or separation from the Company for any\nreason, Employee will not directly or indirectly, through any person or entity, communicate with (i) any of the Company’s customers from which the\nCompany generated revenue during the two years preceding Employee’s termination or separation; or (ii) any prospective customers known to\nEmployee during the two-year period prior to Employee’s termination or separation, for the purpose or intention of attempting to sell any\nCompetitor’s products or services or attempting to divert business from said customer or prospective customer away from the Company.\n6. In the event Employee is uncertain as to the application of this Agreement to any contemplated employment opportunity or business activity,\nEmployee agrees to inquire in writing of the Company’s General Counsel, specifying the contemplated opportunity or activity. The Company will\nattempt to respond within ten (10) business days following receipt of said writing. In no event will the Company’s failure to respond within ten\nbusiness days constitute a waiver of any of the provisions of this Agreement.\n7. All ideas, inventions, discoveries, concepts, trademarks and other developments or improvements, whether patentable or not, conceived by\nEmployee, alone or with others, at any time during Employee’s employment, whether or not during working hours or on the Company’s premises,\nthat are within the scope of or related to the business operations of the Company (“New Developments”), shall be and remain the exclusive property\nof the Company. Employee shall do all things reasonably necessary to ensure ownership of such New Developments by Company, including the\nexecution of documents assigning and transferring to the Company all of Employee’s rights, title and interest in and to such New Developments, and\nthe execution of all documents required to enable the Company to file and obtain patents, trademarks, and copyrights in the United States and.\nforeign countries on any of such New Developments. Employee agrees to make prompt written disclosure to the Company, to hold in trust for the\nsole right and benefit of the Company, and hereby assigns to the Company all right, title and interest in and to any ideas, inventions, original works\nof authorship (published or not), developments, improvements or trade secrets that Employee may solely or jointly conceive or reduce to practice, or\ncause to be conceived or reduced to practice, during employment with the Company. Employee acknowledges that all original works of authorship\nthat are made by Employee (solely or jointly with others) within the scope of Employee’s employment and that are protectable by\nConvergys Corporation - Confidential and Proprietary\n3\ncopyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 U.S .C., Section 101). Employee agrees to keep\nand maintain adequate records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all New\nDevelopments, which records shall be available to and remain the sole property of the Company.\n8. Employee agrees not to disparage or act in any manner that may damage the business of the Company or that would adversely affect the\ngoodwill, reputation, and business relationship of the Company with the public generally, or with any of its customers, suppliers or employees. This\nprovision is not intended to prohibit competition not otherwise restricted by this Agreement.\n9. Employee will not, directly or indirectly, attempt to or actually induce, persuade, or entice any: (i) Company employee, for a period of two\nyears following Employee’s termination or separation (for any reason), to terminate such person’s employment relationship with the Company or\naccept employment with a Competitor; or (ii) current or former Company employee, without limitation, to violate any of such person’s non-compete\nand/or non-solicitation and/or non-disclosure and/or non-disparagement agreements) with the Company.\n10. During Employee’s employment by the Company and for a period of two years following Employee’s termination or separation (for any\nreason), Employee will, before accepting an offer of employment from any person or entity, provide such person or entity a copy of this Agreement.\n11. Employee represents that Employee is not bound by any agreement or other duty to a former employer or any other party that would\nprevent Employee from complying with any obligations hereunder.\n12. Employee further agrees and consents that this Agreement and the rights, duties, and obligations contained in it may be and are fully\ntransferable and/or assignable by the Company, and shall be binding upon and inure to the benefit of the Company’s successors, transferees, or\nassigns.\n13. Employee further agrees that any breach or threatened breach of this Agreement would result in material damage and immediate and\nirreparable harm to the Company. Employee further agrees that any breach of the covenant not to compete described herein would result in the\ninevitable disclosure of Company’s confidential, proprietary and trade secret Information. Employee therefore agrees that the Company, in addition\nto any other rights and remedies available to it, shall be entitled to obtain an immediate injunction, whether temporary, preliminary, or permanent, in\nthe event of any such breach or threatened breach by Employee. Employee acknowledges that the prohibitions and obligations contained in this\nAgreement are reasonable and do not prevent Employee’s ability to use Employee’s general abilities and skills to obtain gainful employment.\nTherefore, Employee agrees that Employee will not sustain monetary damages in the event that Company obtains a temporary, preliminary or\npermanent injunction to enforce this Agreement.\nConvergys Corporation - Confidential and Proprietary\n4\n14. Employee understands and acknowledges that the Company is incorporated, has its headquarters, and conducts substantial business and\noperations in the State of Ohio. Accordingly, Employee agrees that this Agreement shall be governed by the laws of the State of Ohio, without\ngiving effect to any conflict of law provisions. Employee further voluntarily consents and agrees that the state or federal courts located in Hamilton\nCounty, Ohio: (i) must be utilized solely and exclusively to hear any action arising out of or relating to this Agreement; and (ii) are a proper venue\nfor any such action and said courts can appropriately exercise personal jurisdiction over Employee for any such action.\n15. This Agreement supersedes and replaces any prior Non-Disclosure and Non-competition Agreement(s) (or Non-Disclosure Agreement(s)).\nTo the extent that any portion of this Agreement is deemed unenforceable as to the application to specific facts and circumstances, such portion may,\nwithout invalidating the remainder of the Agreement, be modified to the limited extent necessary to cure such unenforceability. Where a curing\nmodification would be ineffective, related portions of Employee’s prior agreement(s) (in order of recency) will be deemed substituted as to the\nspecific facts and circumstances at issue.\n16. This Agreement does not obligate Company to employ Employee for any period of time.\nEMPLOYEE\nDate:\nSignature\nType or Print Name\nConvergys Corporation - Confidential and Proprietary\n5
dcce148b95df368224ab072b40cce989.pdf	effective_date jurisdiction party term	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIAL\nFebruary 4, 2008\nKinetic Concepts, Inc.\n8023 Vantage Drive\nSan Antonio, TX 78230\nRE: Confidentiality Agreement\nLadies and Gentlemen:\nKinetic Concepts, Inc. (“Buyer”) has expressed an interest in exploring a transaction (a “Transaction”) involving the possible acquisition (by\nmerger, consolidation or otherwise) of all of the outstanding shares of capital stock of LifeCell Corporation, a Delaware corporation (together with\nits subsidiaries and affiliates, the “Company”), and has requested certain information relating to the Company. As a condition to any information\nbeing furnished to Buyer and its Representatives (as defined below), Buyer and the Company agree to be bound by the terms and conditions set forth\nin this letter agreement (“this Agreement”). Buyer further agrees to inform each of its Representatives to whom any information subject to this\nAgreement is disclosed of the terms and conditions of this Agreement, and to cause each such Representative to fully observe and be bound by this\nAgreement (other than Section 11 hereof, except as provided therein) to the same extent as if such Representative were Buyer. This Agreement shall\nsupersede the Mutual Non-Disclosure Agreement entered into between Buyer and Company dated May 9, 2007.\n1. Proprietary Information. As used in this Agreement, the term “Proprietary Information” means all information relating to the Company\n(including, without limitation, all such information concerning or relating to the Company’s assets, liabilities, businesses, customers or suppliers)\nfurnished by or on behalf of the Company or its Representatives, or learned or obtained in any fashion by Buyer or any of its Representatives in\nconnection with visits to the Company’s facilities (which information learned or obtained in connection with such visits shall be deemed disclosed\nby the Company), whether furnished, learned or obtained before, on or after the date hereof, and whether oral, written or electronic. “Proprietary\nInformation” shall include all information of the types described above, regardless of the manner or form in which it is furnished, learned or\nobtained, and includes, without limitation, all data, reports, interpretations, forecasts and records containing or otherwise reflecting any of such\ninformation, whether prepared by the Company or others, and any summaries, analyses or other documents created by Buyer, the Company or others\nwhich refer to, relate to, discuss, constitute or embody all or any portion of any of such information. The term “Proprietary Information” shall not\ninclude, however, information that: (a) is or becomes generally available to the public other than as a result (directly or indirectly) of a disclosure or\nother action by Buyer or its Representatives; (b) was (as demonstrable by written records of Buyer) in Buyer’s possession and obtained on a non-\nconfidential basis prior to the disclosure thereof by the Company or its Representatives; or (c) becomes available to Buyer on a non-confidential\nbasis from a person other than the Company or its Representatives who is not to Buyer’s knowledge after reasonable inquiry otherwise bound by any\nobligation of confidentiality with respect thereto.\n2. Representatives. As used in this Agreement, the term “Representatives” means, as to any person, such person’s affiliates and its and their\ndirectors, officers, employees, agents and advisors (including, without limitation, financial advisors, counsel and accountants). As used in this\nAgreement,\nthe term “person” shall be broadly interpreted to include, without limitation, an individual, the media, and any corporation, company, partnership,\nlimited liability company, or other entity, organization, or association. For the avoidance of doubt, potential purchasers, potential equity investors and\ndebt financing sources shall not constitute Representatives and nothing in this Agreement shall permit Buyer to share Confidential Information with\nany other potential purchaser, potential equity investor or debt financing source, or to enter into or engage in any discussions, negotiations,\nagreements or understandings with (or submit any joint proposal with) any such person regarding a Transaction, the Proprietary Information or the\nCompany without the prior written consent of the Company, which consent may be withheld for any or no reason, and may be conditioned upon\nexecution of a confidentiality agreement in such form as the Company may request in its sole discretion.\n3. Restrictions on Use and Disclosure. Subject to Section 4 below, unless otherwise agreed to in writing by an officer of the Company, Buyer\nagrees, for a period of three (3) years from the date of this Agreement: (a) to keep all Proprietary Information confidential and not to disclose or\nreveal any Proprietary Information to any person other than Representatives of Buyer who are actively and directly participating in the evaluation of\na Transaction on behalf of Buyer; and (b) not to use Proprietary Information for any purpose other than its evaluation of a Transaction. Buyer agrees\nto take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary Information and,\nregardless of compliance by Buyer with the foregoing, shall be responsible and liable to the Company for any breach of the terms of this Agreement\nby Buyer or any of its Representatives. Neither party shall, without the other party’s prior written consent, disclose to any person (other than those of\nits Representatives who are actively and directly participating in the evaluation of a Transaction) any information relating to a Transaction, any\nproposed terms or conditions of a Transaction, or any other information or matters relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof or the fact that Proprietary Information has been made available to Buyer or its\nRepresentatives. Each party agrees to take all reasonable measures to restrain its respective Representatives from prohibited or unauthorized\ndisclosure any information relating to a Transaction and, regardless of compliance by such party with the foregoing, shall be responsible and liable to\nthe other party for any breach of the terms of this Agreement by any of its Representatives.\n4. Compelled Disclosure. In the event that Buyer or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, or pursuant to applicable law, rule, regulation, stock exchange rule or disclosure requirement of the\nSecurities and Exchange Commission (collectively, “Law”), to disclose any Proprietary Information or either party is legally compelled to disclose\nany other information concerning a Transaction, the compelled party shall seek a written opinion from reputable and experienced outside counsel\nthat a specific disclosure is necessary in order for the compelled party not to be in violation of, or default under, an applicable Law or order. Each\nparty agrees that it shall provide the non-compelled party with prompt notice of such request or requirement as well as a copy of such opinion\ntogether with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult with\nand consider the suggestions of the non-compelled party concerning the nature and scope of the information the compelled party proposes to\ndisclose. Each party agrees to cooperate fully with and not to oppose any action by the non-compelled party to obtain a protective order or other\nappropriate remedy in order to limit such disclosure. In the event that no such protective order or other remedy is obtained, or in the event that the\nnon-compelled party waives compliance with the terms of this Agreement, the compelled party may disclose only that part of the Proprietary\nInformation or other information concerning a Transaction as it is advised by counsel in writing is legally required to be disclosed, and shall use its\nbest efforts to ensure that all Proprietary Information and other information concerning a Transaction that is so disclosed will be accorded\nconfidential treatment.\n2\n5. Ownership. Buyer acknowledges that the Proprietary Information is and shall remain the sole and exclusive property of the Company, and\nthat the Company has the exclusive right, title and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of this Agreement or as a result of any disclosure of Proprietary Information.\n6. Return or Destruction. At any time the Company so requests in writing for any or no reason, Buyer shall, and shall cause its Representatives\nto: (a) promptly return to the Company all Proprietary Information furnished directly or indirectly by or on behalf of the Company or any of its\nRepresentatives; (b) promptly destroy all copies, summaries, extracts, memoranda, notes and other writings of, containing or based upon any\nProprietary Information, regardless of who prepared such writings; and (c) promptly expunge all Proprietary Information from all computers and\nother electronic or other storage devices. Neither Buyer nor any of its Representatives shall retain any copies or other reproductions in whole or in\npart of any such material. Within fifteen (15) days following the Company’s request to Buyer to take the actions set forth in Sections 6(a), (b) and\n(c) of this Agreement, an officer of Buyer shall certify to the Company, in writing, that Buyer and its Representatives have complied with this\nSection 6. Compliance with this Section 6 shall not terminate or relieve Buyer or its Representatives from their obligations under this Agreement.\n7. No Warranty. Buyer acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any information provided to Buyer or its Representatives. Except as may be provided in a definitive\nwritten agreement with regard to any Transaction between the Company and Buyer, Buyer agrees that neither the Company nor any of the\nCompany’s Representatives shall have any liability to Buyer or any of Buyer’s Representatives relating to or arising from the use of any information\nby Buyer or its Representatives or for any errors in or omissions from such information.\n8. Procedures. Buyer acknowledges that the Company may establish procedures and guidelines governing the process for the submission and\nevaluation of proposals with respect to a Transaction, and any other matters relating thereto (the “Procedures”). Buyer acknowledges and agrees that:\n(a) the Company and its Representatives are free to conduct the process leading up to a Transaction as the Company and its Representatives, in their\nsole discretion, determine (including, without limitation, by negotiating with any third party and entering into a preliminary or definitive written\nagreement without prior notice to Buyer or any other person); (b) the Company reserves the right, in its sole discretion, to change the Procedures at\nany time without prior notice to Buyer or any other person, to reject any and all proposals made by Buyer or any of its Representatives regarding a\nTransaction, and to terminate discussions and negotiations with Buyer at any time and for any reason; and (c) neither the Company nor any of its\nRepresentatives nor any third party with whom the Company may enter into any agreement for or complete any transaction, shall by virtue of this\nAgreement have any liability to Buyer or its Representatives arising out of or relating to such transaction.\n9. Communications. Buyer acknowledges and agrees that all (a) communications regarding a Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding the Procedures will be submitted only\nto “chief” level executives of the Company or employees of Merrill Lynch & Co. specifically designated in writing by the Company or Merrill\nLynch & Co. Each party agrees to not, and shall cause its Representatives not to, initiate or maintain contact with any security-holder, director,\nofficer, employee, partner, manager, member, agent, advisor, representative, customer, supplier, independent contractor, affiliate or lender of the\nother party with respect to, or relating or referring in any way to, a Transaction or the Proprietary Information, other than in the ordinary course of\nbusiness unrelated to a Transaction, unless specifically authorized in advance in writing by the other party.\n3\n10. Non-Solicitation. Each party agrees that, without the other party’s consent, it will not, and it will cause its affiliates to not, for a period of\ntwo (2) years from the date hereof, directly or indirectly, solicit for employment any person who is now employed by the other party; provided,\nhowever, that a party shall not be prohibited from: (a) conducting generalized solicitations for employees (which solicitations are not specifically\ntargeted at the other party’s employees) through the use of media advertisements, professional search firms or otherwise; (b) soliciting or employing\nany person with whom such party and its Representatives have not had contact (or otherwise become aware of) in the course of their evaluation of a\nTransaction, or (c) if Buyer and the Company consummate a Transaction, employing such persons connected with the Company in accordance with\na definitive written agreement with respect to such Transaction.\n11. Standstill. Buyer agrees that, for a period of eighteen (18) months from the date hereof (the “Standstill Period”), neither it nor its affiliates\nwill, unless invited by the Board of Directors of the Company in writing: (a) acquire, offer or propose to acquire, or agree or seek to acquire, directly\nor indirectly, by purchase or otherwise, any securities or direct or indirect rights or options to acquire any securities of the Company or any\nbusinesses or assets of the Company; provided, however that the foregoing shall not restrict Buyer and its affiliates, collectively, from acquiring, in\nthe ordinary course of their business, up to 1% of the outstanding publicly-traded common stock of the Company; (b) enter into or agree, offer,\npropose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any acquisition transaction or other business combination\nrelating to all or part of the Company or any acquisition transaction for all or part of the assets of the Company or any of its businesses; (c) make, or\nin any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange\nCommission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company;\n(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) with respect to any voting securities of the Company; (e) seek or propose, alone or in concert with others, to influence or\ncontrol the Company’s management or policies; (f) directly or indirectly enter into any discussions, negotiations, arrangements or understandings\nwith any other person with respect to any of the foregoing activities or propose any of such activities to any other person; (g) advise, assist,\nencourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; or (h) disclose any\nintention, plan or arrangement inconsistent with any of the foregoing. Buyer also agrees that, during the Standstill Period, neither Buyer nor its\naffiliates will: (i) request that the Company or its advisors, directly or indirectly, (A) amend or waive any provision of this Section 11 (including this\nsentence) or (B) otherwise consent to any action inconsistent with any provision of this Section 11 (including this sentence); or (ii) take any initiative\nwith respect to the Company which could require the Company to make a public announcement regarding (A) such initiative, (B) any of the\nactivities referred to this Section 11, (C) the possibility of a Transaction or any similar transaction or (D) the possibility of Buyer or any other person\nacquiring control of the Company, whether by means of a business combination or otherwise. Notwithstanding the foregoing, the limitations and\nprohibitions on Buyer set forth in this paragraph shall no longer apply from the earliest of (x) the date the Company enters into a definitive written\nagreement with any person or group other than Buyer which provides for any transaction where such person or group (or such person’s or group’s\nstockholders) would be acquiring at least 40% or more of the outstanding capital stock of the Company or all or substantially all of the assets of the\nCompany (each, a “Third Party Acquisition”), (y) the date any person or group other than Buyer enters into a definitive written agreement to acquire,\nor acquires, “beneficial ownership” (as such term is defined under the Exchange Act) of 40% or more of the outstanding capital stock of the\nCompany or (z) the date any person or group other than Buyer publicly proposes a Third Party Acquisition pursuant to a tender or exchange offer\nand/or a proxy solicitation.\n4\n12. Securities Laws. Each party is aware, and will advise its respective Representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. No Implied Obligations. This Agreement binds the parties only with respect to the matters expressly set forth herein. The Company has no\nobligation to disclose any information to Buyer or its Representatives. Neither party is bound or committed to negotiate or consummate a\nTransaction unless and until a definitive written agreement regarding such Transaction has been executed and delivered on behalf of both parties by\ntheir duly authorized officers, in which case the obligations of the parties to consummate such Transaction and to negotiate any matters in connection\ntherewith shall be subject to, and governed solely by, the terms and conditions of such definitive written agreement.\n14. Non-Exclusive Remedies. It is understood and agreed that the Proprietary Information is special, unique and of extraordinary character,\nand that the Company may be irreparably harmed by a breach of this Agreement. Without prejudice to the rights and remedies otherwise available to\na party, each party agrees that the other party shall be entitled to equitable relief by way of injunction or otherwise if such party or any of its\nrespective Representatives breach or threaten to breach any of the provisions of this Agreement.\n15. Assignment. Each party agrees that the rights and remedies of the other party under this Agreement shall inure to the benefit of, and shall\nbe separately enforceable by, the other party, its affiliates, and its and their respective successors and assigns. Neither party shall assign this\nAgreement without the prior written consent of the other party except that, without such consent, each party shall cause all of its obligations under\nthis Agreement to be assumed, either in writing or by operation of law, by any successor (by merger, sale of assets or otherwise) to the business of\nsuch party or of any portion thereof. No assignment of this Agreement or of any rights or obligations hereunder shall relieve a party of any of its\nobligations hereunder.\n16. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nNew York applicable to contracts executed in and to be performed in that State, without regard to conflict of laws principles. The parties hereto agree\nthat venue in any and all actions and proceedings related to this Agreement shall be had in the State and Federal courts located in the city of New\nYork, New York, which courts shall have personal and subject matter jurisdiction for such purpose, and the parties hereto irrevocably submit to the\njurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.\n17. Miscellaneous. Buyer and the Company each agree to bear its respective costs and expenses, including, without limitation, expenses of\ncounsel, outside auditors, advisors and consultants, in connection with the evaluation of a possible Transaction. This Agreement contains the entire\nagreement between the Company and Buyer concerning the subject matter hereof, and no modification of this Agreement or waiver of any terms\nhereof shall be binding upon the Company or Buyer, unless approved in writing by both of the parties hereto. No failure or delay by a party in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nor further exercise thereof or the exercise of any other right, power or privilege hereunder. If any provision of this Agreement shall, for any reason,\nbe adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder\nof this Agreement but shall be confined in its operation to the provision of this Agreement directly involved in the controversy in which such\njudgment shall have been rendered. This Agreement may be executed in counterparts and by original, facsimile or electronic signatures, each of\nwhich shall be an original, but all of which together shall constitute one and the same agreement.\n5\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this Agreement.\nLIFECELL CORPORATION\nBy: /s/ Paul Thomas\nName: Paul Thomas\nTitle: CEO\nAccepted and agreed\nas of the date set forth above:\nKINETIC CONCEPTS, INC.\nBy: /s/ Martin J. Landon\nName: Martin J. Landon\nTitle: Sr. Vice President\n6	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIAL\nFebruary 4, 2008\nKinetic Concepts, Inc.\n8023 Vantage Drive\nSan Antonio, TX 78230\nRE: Confidentiality Agreement\nLadies and Gentlemen:\nKinetic Concepts, Inc. (“Buyer”) has expressed an interest in exploring a transaction (a “Iransaction”) involving the possible acquisition (by\nmerger, consolidation or otherwise) of all of the outstanding shares of capital stock of LifeCell Corporation, a Delaware corporation (together with\nits subsidiaries and affiliates, the “Company”), and has requested certain information relating to the Company. As a condition to any information\nbeing furnished to Buyer and its Representatives (as defined below), Buyer and the Company agree to be bound by the terms and conditions set forth\nin this letter agreement (“this Agreement”). Buyer further agrees to inform each of its Representatives to whom any information subject to this\nAgreement is disclosed of the terms and conditions of this Agreement, and to cause each such Representative to fully observe and be bound by this\nAgreement (other than Section 11 hereof, except as provided therein) to the same extent as if such Representative were Buyer. This Agreement shall\nsupersede the Mutual Non-Disclosure Agreement entered into between Buyer and Company dated May 9, 2007.\n1. Proprietary Information. As used in this Agreement, the term “Proprietary Information” means all information relating to the Company\n(including, without limitation, all such information concerning or relating to the Company’s assets, liabilities, businesses, customers or suppliers)\nfurnished by or on behalf of the Company or its Representatives, or learned or obtained in any fashion by Buyer or any of its Representatives in\nconnection with visits to the Company’s facilities (which information learned or obtained in connection with such visits shall be deemed disclosed\nby the Company), whether furnished, learned or obtained before, on or after the date hereof, and whether oral, written or electronic. “Proprietary\nInformation” shall include all information of the types described above, regardless of the manner or form in which it is furnished, learned or\nobtained, and includes, without limitation, all data, reports, interpretations, forecasts and records containing or otherwise reflecting any of such\ninformation, whether prepared by the Company or others, and any summaries, analyses or other documents created by Buyer, the Company or others\nwhich refer to, relate to, discuss, constitute or embody all or any portion of any of such information. The term “Proprietary Information” shall not\ninclude, however, information that: (a) is or becomes generally available to the public other than as a result (directly or indirectly) of a disclosure or\nother action by Buyer or its Representatives; (b) was (as demonstrable by written records of Buyer) in Buyer’s possession and obtained on a non-\nconfidential basis prior to the disclosure thereof by the Company or its Representatives; or (c) becomes available to Buyer on a non-confidential\nbasis from a person other than the Company or its Representatives who is not to Buyer’s knowledge after reasonable inquiry otherwise bound by any\nobligation of confidentiality with respect thereto.\n2. Representatives. As used in this Agreement, the term “Representatives” means, as to any person, such person’s affiliates and its and their\ndirectors, officers, employees, agents and advisors (including, without limitation, financial advisors, counsel and accountants). As used in this\nAgreement,\nthe term “person” shall be broadly interpreted to include, without limitation, an individual, the media, and any corporation, company, partnership,\nlimited liability company, or other entity, organization, or association. For the avoidance of doubt, potential purchasers, potential equity investors and\ndebt financing sources shall not constitute Representatives and nothing in this Agreement shall permit Buyer to share Confidential Information with\nany other potential purchaser, potential equity investor or debt financing source, or to enter into or engage in any discussions, negotiations,\nagreements or understandings with (or submit any joint proposal with) any such person regarding a Transaction, the Proprietary Information or the\nCompany without the prior written consent of the Company, which consent may be withheld for any or no reason, and may be conditioned upon\nexecution of a confidentiality agreement in such form as the Company may request in its sole discretion.\n3. Restrictions on Use and Disclosure. Subject to Section 4 below, unless otherwise agreed to in writing by an officer of the Company, Buyer\nagrees, for a period of three (3) years from the date of this Agreement: (a) to keep all Proprietary Information confidential and not to disclose or\nreveal any Proprietary Information to any person other than Representatives of Buyer who are actively and directly participating in the evaluation of\na Transaction on behalf of Buyer; and (b) not to use Proprietary Information for any purpose other than its evaluation of a Transaction. Buyer agrees\nto take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary Information and,\nregardless of compliance by Buyer with the foregoing, shall be responsible and liable to the Company for any breach of the terms of this Agreement\nby Buyer or any of its Representatives. Neither party shall, without the other party’s prior written consent, disclose to any person (other than those of\nits Representatives who are actively and directly participating in the evaluation of a Transaction) any information relating to a Transaction, any\nproposed terms or conditions of a Transaction, or any other information or matters relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof or the fact that Proprietary Information has been made available to Buyer or its\nRepresentatives. Each party agrees to take all reasonable measures to restrain its respective Representatives from prohibited or unauthorized\ndisclosure any information relating to a Transaction and, regardless of compliance by such party with the foregoing, shall be responsible and liable to\nthe other party for any breach of the terms of this Agreement by any of its Representatives.\n4. Compelled Disclosure. In the event that Buyer or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, or pursuant to applicable law, rule, regulation, stock exchange rule or disclosure requirement of the\nSecurities and Exchange Commission (collectively, “Law”), to disclose any Proprietary Information or either party is legally compelled to disclose\nany other information concerning a Transaction, the compelled party shall seek a written opinion from reputable and experienced outside counsel\nthat a specific disclosure is necessary in order for the compelled party not to be in violation of, or default under, an applicable Law or order. Each\nparty agrees that it shall provide the non-compelled party with prompt notice of such request or requirement as well as a copy of such opinion\ntogether with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult with\nand consider the suggestions of the non-compelled party concerning the nature and scope of the information the compelled party proposes to\ndisclose. Each party agrees to cooperate fully with and not to oppose any action by the non-compelled party to obtain a protective order or other\nappropriate remedy in order to limit such disclosure. In the event that no such protective order or other remedy is obtained, or in the event that the\nnon-compelled party waives compliance with the terms of this Agreement, the compelled party may disclose only that part of the Proprietary\nInformation or other information concerning a Transaction as it is advised by counsel in writing is legally required to be disclosed, and shall use its\nbest efforts to ensure that all Proprietary Information and other information concerning a Transaction that is so disclosed will be accorded\nconfidential treatment.\n5. Ownership. Buyer acknowledges that the Proprietary Information is and shall remain the sole and exclusive property of the Company, and\nthat the Company has the exclusive right, title and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of this Agreement or as a result of any disclosure of Proprietary Information.\n6. Return or Destruction. At any time the Company so requests in writing for any or no reason, Buyer shall, and shall cause its Representatives\nto: (a) promptly return to the Company all Proprietary Information furnished directly or indirectly by or on behalf of the Company or any of its\nRepresentatives; (b) promptly destroy all copies, summaries, extracts, memoranda, notes and other writings of, containing or based upon any\nProprietary Information, regardless of who prepared such writings; and (c) promptly expunge all Proprietary Information from all computers and\nother electronic or other storage devices. Neither Buyer nor any of its Representatives shall retain any copies or other reproductions in whole or in\npart of any such material. Within fifteen (15) days following the Company’s request to Buyer to take the actions set forth in Sections 6(a), (b) and\n(c) of this Agreement, an officer of Buyer shall certify to the Company, in writing, that Buyer and its Representatives have complied with this\nSection 6. Compliance with this Section 6 shall not terminate or relieve Buyer or its Representatives from their obligations under this Agreement.\n7. No Warranty. Buyer acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any information provided to Buyer or its Representatives. Except as may be provided in a definitive\nwritten agreement with regard to any Transaction between the Company and Buyer, Buyer agrees that neither the Company nor any of the\nCompany’s Representatives shall have any liability to Buyer or any of Buyer’s Representatives relating to or arising from the use of any information\nby Buyer or its Representatives or for any errors in or omissions from such information.\n8. Procedures. Buyer acknowledges that the Company may establish procedures and guidelines governing the process for the submission and\nevaluation of proposals with respect to a Transaction, and any other matters relating thereto (the “Procedures”). Buyer acknowledges and agrees that:\n(a) the Company and its Representatives are free to conduct the process leading up to a Transaction as the Company and its Representatives, in their\nsole discretion, determine (including, without limitation, by negotiating with any third party and entering into a preliminary or definitive written\nagreement without prior notice to Buyer or any other person); (b) the Company reserves the right, in its sole discretion, to change the Procedures at\nany time without prior notice to Buyer or any other person, to reject any and all proposals made by Buyer or any of its Representatives regarding a\nTransaction, and to terminate discussions and negotiations with Buyer at any time and for any reason; and (c) neither the Company nor any of its\nRepresentatives nor any third party with whom the Company may enter into any agreement for or complete any transaction, shall by virtue of this\nAgreement have any liability to Buyer or its Representatives arising out of or relating to such transaction.\n9. Communications. Buyer acknowledges and agrees that all (a) communications regarding a Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding the Procedures will be submitted only\nto “chief” level executives of the Company or employees of Merrill Lynch & Co. specifically designated in writing by the Company or Merrill\nLynch & Co. Each party agrees to not, and shall cause its Representatives not to, initiate or maintain contact with any security-holder, director,\nofficer, employee, partner, manager, member, agent, advisor, representative, customer, supplier, independent contractor, affiliate or lender of the\nother party with respect to, or relating or referring in any way to, a Transaction or the Proprietary Information, other than in the ordinary course of\nbusiness unrelated to a Transaction, unless specifically authorized in advance in writing by the other party.\n3\n10. Non-Solicitation. Each party agrees that, without the other party’s consent, it will not, and it will cause its affiliates to not, for a period of\ntwo (2) years from the date hereof, directly or indirectly, solicit for employment any person who is now employed by the other party; provided,\nhowever, that a party shall not be prohibited from: (a) conducting generalized solicitations for employees (which solicitations are not specifically\ntargeted at the other party’s employees) through the use of media advertisements, professional search firms or otherwise; (b) soliciting or employing\nany person with whom such party and its Representatives have not had contact (or otherwise become aware of) in the course of their evaluation of a\nTransaction, or (c) if Buyer and the Company consummate a Transaction, employing such persons connected with the Company in accordance with\na definitive written agreement with respect to such Transaction.\n11. Standstill. Buyer agrees that, for a period of eighteen (18) months from the date hereof (the “Standstill Period”), neither it nor its affiliates\nwill, unless invited by the Board of Directors of the Company in writing: (a) acquire, offer or propose to acquire, or agree or seek to acquire, directly\nor indirectly, by purchase or otherwise, any securities or direct or indirect rights or options to acquire any securities of the Company or any\nbusinesses or assets of the Company; provided, however that the foregoing shall not restrict Buyer and its affiliates, collectively, from acquiring, in\nthe ordinary course of their business, up to 1% of the outstanding publicly-traded common stock of the Company; (b) enter into or agree, offer,\npropose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any acquisition transaction or other business combination\nrelating to all or part of the Company or any acquisition transaction for all or part of the assets of the Company or any of its businesses; (c) make, or\nin any way participate in, directly or indirectly, any “solicitation” of “proxies™ (as such terms are used in the rules of the Securities and Exchange\nCommission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company;\n(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) with respect to any voting securities of the Company; (e) seek or propose, alone or in concert with others, to influence or\ncontrol the Company’s management or policies; (f) directly or indirectly enter into any discussions, negotiations, arrangements or understandings\nwith any other person with respect to any of the foregoing activities or propose any of such activities to any other person; (g) advise, assist,\nencourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; or (h) disclose any\nintention, plan or arrangement inconsistent with any of the foregoing. Buyer also agrees that, during the Standstill Period, neither Buyer nor its\naffiliates will: (i) request that the Company or its advisors, directly or indirectly, (A) amend or waive any provision of this Section 11 (including this\nsentence) or (B) otherwise consent to any action inconsistent with any provision of this Section 11 (including this sentence); or (ii) take any initiative\nwith respect to the Company which could require the Company to make a public announcement regarding (A) such initiative, (B) any of the\nactivities referred to this Section 11, (C) the possibility of a Transaction or any similar transaction or (D) the possibility of Buyer or any other person\nacquiring control of the Company, whether by means of a business combination or otherwise. Notwithstanding the foregoing, the limitations and\nprohibitions on Buyer set forth in this paragraph shall no longer apply from the earliest of (x) the date the Company enters into a definitive written\nagreement with any person or group other than Buyer which provides for any transaction where such person or group (or such person’s or group’s\nstockholders) would be acquiring at least 40% or more of the outstanding capital stock of the Company or all or substantially all of the assets of the\nCompany (each, a “Third Party Acquisition), (y) the date any person or group other than Buyer enters into a definitive written agreement to acquire,\nor acquires, “beneficial ownership” (as such term is defined under the Exchange Act) of 40% or more of the outstanding capital stock of the\nCompany or (z) the date any person or group other than Buyer publicly proposes a Third Party Acquisition pursuant to a tender or exchange offer\nand/or a proxy solicitation.\n12. Securities Laws. Each party is aware, and will advise its respective Representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. No Implied Obligations. This Agreement binds the parties only with respect to the matters expressly set forth herein. The Company has no\nobligation to disclose any information to Buyer or its Representatives. Neither party is bound or committed to negotiate or consummate a\nTransaction unless and until a definitive written agreement regarding such Transaction has been executed and delivered on behalf of both parties by\ntheir duly authorized officers, in which case the obligations of the parties to consummate such Transaction and to negotiate any matters in connection\ntherewith shall be subject to, and governed solely by, the terms and conditions of such definitive written agreement.\n14. Non-Exclusive Remedies. It is understood and agreed that the Proprietary Information is special, unique and of extraordinary character,\nand that the Company may be irreparably harmed by a breach of this Agreement. Without prejudice to the rights and remedies otherwise available to\na party, each party agrees that the other party shall be entitled to equitable relief by way of injunction or otherwise if such party or any of its\nrespective Representatives breach or threaten to breach any of the provisions of this Agreement.\n15. Assignment. Each party agrees that the rights and remedies of the other party under this Agreement shall inure to the benefit of, and shall\nbe separately enforceable by, the other party, its affiliates, and its and their respective successors and assigns. Neither party shall assign this\nAgreement without the prior written consent of the other party except that, without such consent, each party shall cause all of its obligations under\nthis Agreement to be assumed, either in writing or by operation of law, by any successor (by merger, sale of assets or otherwise) to the business of\nsuch party or of any portion thereof. No assignment of this Agreement or of any rights or obligations hereunder shall relieve a party of any of its\nobligations hereunder.\n16. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nNew York applicable to contracts executed in and to be performed in that State, without regard to conflict of laws principles. The parties hereto agree\nthat venue in any and all actions and proceedings related to this Agreement shall be had in the State and Federal courts located in the city of New\nYork, New York, which courts shall have personal and subject matter jurisdiction for such purpose, and the parties hereto irrevocably submit to the\njurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.\n17. Miscellaneous. Buyer and the Company each agree to bear its respective costs and expenses, including, without limitation, expenses of\ncounsel, outside auditors, advisors and consultants, in connection with the evaluation of a possible Transaction. This Agreement contains the entire\nagreement between the Company and Buyer concerning the subject matter hereof, and no modification of this Agreement or waiver of any terms\nhereof shall be binding upon the Company or Buyer, unless approved in writing by both of the parties hereto. No failure or delay by a party in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nor further exercise thereof or the exercise of any other right, power or privilege hereunder. If any provision of this Agreement shall, for any reason,\nbe adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder\nof this Agreement but shall be confined in its operation to the provision of this Agreement directly involved in the controversy in which such\njudgment shall have been rendered. This Agreement may be executed in counterparts and by original, facsimile or electronic signatures, each of\nwhich shall be an original, but all of which together shall constitute one and the same agreement.\n5\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this Agreement. Accepted and agreed\nas of the date set forth above:\nKINETIC CONCEPTS, INC. By: /s/ Martin J. Landon Name: Martin J. Landon\nTitle:  Sr. Vice President\nLIFECELL CORPORATION\nBy:  /s/Paul Thomas Name: Paul Thomas\nTitle: CEO	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIAL\nFebruary 4, 2008\nKinetic Concepts, Inc.\n8023 Vantage Drive\nSan Antonio, TX 78230\nRE: Confidentiality. Agreement\nLadies and Gentlemen:\nKinetic Concepts, Inc. ("Buyer") has expressed an interest in exploring a transaction (a "Transaction") involving the possible acquisition (by\nmerger, consolidation or otherwise) of all of the outstanding shares of capital stock of LifeCell Corporation, a Delaware corporation (together with\nits subsidiaries and affiliates, the "Company."), and has requested certain information relating to the Company. As a condition to any information\nbeing furnished to Buyer and its Representatives (as defined below), Buyer and the Company agree to be bound by the terms and conditions set\nforth\nin this letter agreement ("this Agreement"). Buyer further agrees to inform each of its Representatives to whom any information subject to this\nAgreement is disclosed of the terms and conditions of this Agreement, and to cause each such Representative to fully observe and be bound by\nthis\nAgreement (other than Section 11 hereof, except as provided therein) to the same extent as if such Representative were Buyer. This Agreement shall\nsupersede the Mutual Non-Disclosure Agreement entered into between Buyer and Company dated May 9, 2007.\n1. Proprietary. Information. As used in this Agreement, the term "Proprietary. Information" means all information relating to the Company\n(including,\nwithout\nlimitation, all such information concerning or relating to the Company's assets, liabilities, businesses, customers or suppliers)\nfurnished by or on behalf of the Company or its Representatives, or learned or obtained in any fashion by Buyer or any of its Representatives in\nconnection with visits to the Company's facilities (which information learned or obtained in connection with such visits shall be deemed disclosed\nby\nthe\nCompany),\nwhether furnished, learned or obtained before, on or after the date hereof, and whether oral, written or electronic. "Proprietary.\nInformation" shall include all information of the types described above, regardless of the manner or form in which it is furnished, learned or\nobtained, and includes, without limitation, all data, reports, interpretations, forecasts and records containing or otherwise reflecting any of such\ninformation, whether prepared by the Company or others, and any summaries, analyses or other documents created by Buyer, the Company or others\nwhich refer to, relate to, discuss, constitute or embody all or any portion of any of such information. The term "Proprietary. Information" shall not\ninclude, however, information that: (a) is or becomes generally available to the public other than as a result (directly or indirectly) of a disclosure\nor\nother action by Buyer or its Representatives; (b) was (as demonstrable by written records of Buyer) in Buyer's possession and obtained on a non-\nconfidential basis prior to the disclosure thereof by the Company or its Representatives; or (c) becomes available to Buyer on a non-confidential\nbasis from a person other than the Company or its Representatives who is not to Buyer's knowledge after reasonable inquiry otherwise bound by\nany\nobligation of confidentiality with respect thereto.\n2. Representatives. As used in this Agreement, the term "Representatives" means, as to any person, such person's affiliates and its and their\ndirectors, officers, employees, agents and advisors (including, without limitation, financial advisors, counsel and accountants). As used in this\nAgreement,\nthe term "person" shall be broadly interpreted to include, without limitation, an individual, the media, and any corporation, company, partnership,\nlimited liability company, or other entity, organization, or association. For the avoidance of doubt, potential purchasers, potential equity investors and\ndebt financing sources shall not constitute Representatives and nothing in this Agreement shall permit Buyer to share Confidential Information with\nany other potential purchaser, potential equity investor or debt financing source, or to enter into or engage in any discussions, negotiations,\nagreements or understandings with (or submit any joint proposal with) any such person regarding a Transaction, the Proprietary Information or\nthe\nCompany without the prior written consent of the Company, which consent may be withheld for any or no reason, and may be conditioned upon\nexecution of a confidentiality agreement in such form as the Company may request in its sole discretion.\n3. Restrictions on Use and Disclosure. Subject to Section 4 below, unless otherwise agreed to in writing by an officer of the Company, Buyer\nagrees, for a period of three (3) years from the date of this Agreement: (a) to keep all Proprietary Information confidential and not to disclose or\nreveal any Proprietary Information to any person other than Representatives of Buyer who are actively and directly participating in the evaluation\nof\na Transaction on behalf of Buyer; and (b) not to use Proprietary Information for any purpose other than its evaluation of a Transaction. Buyer agrees\nto take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary Information and,\nregardless of compliance by Buyer with the foregoing, shall be responsible and liable to the Company for any breach of the terms of this Agreement\nby Buyer or any of its Representatives. Neither party shall, without the other party's prior written consent, disclose to any person (other than those\nof\nits Representatives who are actively and directly participating in the evaluation of a Transaction) any information relating to a Transaction, any\nproposed terms or conditions of a Transaction, or any other information or matters relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof or the fact that Proprietary Information has been made available to Buyer\nor\nits\nRepresentatives. Each party agrees to take all reasonable measures to restrain its respective Representatives from prohibited or unauthorized\ndisclosure any information relating to a Transaction and, regardless of compliance by such party with the foregoing, shall be responsible and liable to\nthe other party for any breach of the terms of this Agreement by any of its Representatives.\n4. Compelled Disclosure. In the event that Buyer or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, or pursuant to applicable law, rule, regulation, stock exchange rule or disclosure requirement of the\nSecurities and Exchange Commission (collectively, "Law"), to disclose any Proprietary Information or either party is legally compelled to disclose\nany other information concerning a Transaction, the compelled party shall seek a written opinion from reputable and experienced outside counsel\nthat a specific disclosure is necessary in order for the compelled party not to be in violation of, or default under, an applicable Law or order. Each\nparty agrees that it shall provide the non-compelled party with prompt notice of such request or requirement as well as a copy of such opinion\ntogether with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult with\nand consider the suggestions of the non-compelled party concerning the nature and scope of the information the compelled party proposes to\ndisclose. Each party agrees to cooperate fully with and not to oppose any action by the non-compelled party to obtain a protective order or other\nappropriate remedy in order to limit such disclosure. In the event that no such protective order or other remedy is obtained, or in the event that\nthe\nnon-compelled party waives compliance with the terms of this Agreement, the compelled party may disclose only that part of the Proprietary\nInformation or other information concerning a Transaction as it is advised by counsel in writing is legally required to be disclosed, and shall use its\nbest efforts to ensure that all Proprietary Information and other information concerning a Transaction that is so disclosed will be accorded\nconfidential treatment.\n2\n5. Ownership. Buyer acknowledges that the Proprietary Information is and shall remain the sole and exclusive property of the Company, and\nthat the Company has the exclusive right, title and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of this Agreement or as a result of any disclosure of Proprietary Information.\n6. Return or Destruction. At any time the Company so requests in writing for any or no reason, Buyer shall, and shall cause its Representatives\nto:\n(a)\npromptly return to the Company all Proprietary Information furnished directly or indirectly by or on behalf of the Company or any of its\nRepresentatives; (b) promptly destroy all copies, summaries, extracts, memoranda, notes and other writings of, containing or based upon any\nProprietary Information, regardless of who prepared such writings; and (c) promptly expunge all Proprietary Information from all computers and\nother electronic or other storage devices. Neither Buyer nor any of its Representatives shall retain any copies or other reproductions in whole or\nin\npart of any such material. Within fifteen (15) days following the Company's request to Buyer to take the actions set forth in Sections 6(a), (b) and\n(c) of this Agreement, an officer of Buyer shall certify to the Company, in writing, that Buyer and its Representatives have complied with this\nSection 6. Compliance with this Section 6 shall not terminate or relieve Buyer or its Representatives from their obligations under this Agreement.\n7. No Warranty.. Buyer acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any information provided to Buyer or its Representatives. Except as may be provided in a definitive\nwritten agreement with regard to any Transaction between the Company and Buyer, Buyer agrees that neither the Company nor any of the\nCompany's Representatives shall have any liability to Buyer or any of Buyer's Representatives relating to or arising from the use of any information\nby Buyer or its Representatives or for any errors in or omissions from such information.\n8. Procedures. Buyer acknowledges that the Company may establish procedures and guidelines governing the process for the submission and\nevaluation\nof\nproposals\nwith\nrespect\nto\na\nTransaction,\nand\nany\nother\nmatters\nrelating\nthereto\n(the\n"Procedures").\nBuyer\nacknowledges\nand\nagrees\nthat:\n(a) the Company and its Representatives are free to conduct the process leading up to a Transaction as the Company and its Representatives, in their\nsole discretion, determine (including, without limitation, by negotiating with any third party and entering into a preliminary or definitive written\nagreement without prior notice to Buyer or any other person); (b) the Company reserves the right, in its sole discretion, to change the Procedures\nat\nany time without prior notice to Buyer or any other person, to reject any and all proposals made by Buyer or any of its Representatives regarding a\nTransaction, and to terminate discussions and negotiations with Buyer at any time and for any reason; and (c) neither the Company nor any of its\nRepresentatives nor any third party with whom the Company may enter into any agreement for or complete any transaction, shall by virtue of this\nAgreement have any liability to Buyer or its Representatives arising out of or relating to such transaction.\n9. Communications. Buyer acknowledges and agrees that all (a) communications regarding a Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding the Procedures will be submitted only\nto "chief" level executives of the Company or employees of Merrill Lynch & Co. specifically designated in writing by the Company or Merrill\nLynch & Co. Each party agrees to not, and shall cause its Representatives not to, initiate or maintain contact with any security-holder, director,\nofficer, employee, partner, manager, member, agent, advisor, representative, customer, supplier, independent contractor, affiliate or lender of the\nother party with respect to, or relating or referring in any way to, a Transaction or the Proprietary Information, other than in the ordinary course\nof\nbusiness unrelated to a Transaction, unless specifically authorized in advance in writing by the other party.\n3\n10. Non-Solicitation. Each party agrees that, without the other party's consent, it will not, and it will cause its affiliates to not, for a period of\ntwo (2) years from the date hereof, directly or indirectly, solicit for employment any person who is now employed by the other party; provided,\nhowever, that a party shall not be prohibited from: (a) conducting generalized solicitations for employees (which solicitations are not specifically\ntargeted at the other party's employees) through the use of media advertisements, professiona search firms or otherwise; (b) soliciting or employing\nany person with whom such party and its Representatives have not had contact (or otherwise become aware of) in the course of their evaluation of\na\nTransaction, or (c) if Buyer and the Company consummate a Transaction, employing such persons connected with the Company in accordance with\na definitive written agreement with respect to such Transaction.\n11. Standstill. Buyer agrees that, for a period of eighteen (18) months from the date hereof (the "Standstill Period"), neither it nor its affiliates\nwill, unless invited by the Board of Directors of the Company in writing: (a) acquire, offer or propose to acquire, or agree or seek to acquire, directly\nor indirectly, by purchase or otherwise, any securities or direct or indirect rights or options to acquire any securities of the Company or any\nbusinesses or assets of the Company; provided, however that the foregoing shall not restrict Buyer and its affiliates, collectively, from acquiring, in\nthe ordinary course of their business, up to 1% of the outstanding publicly-traded common stock of the Company; (b) enter into or agree, offer,\npropose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any acquisition transaction or other business combination\nrelating to all or part of the Company or any acquisition transaction for all or part of the assets of the Company or any of its businesses; (c) make,\nor\nin any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in the rules of the Securities and Exchange\nCommission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company;\n(d) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the "Exchange Act")) with respect to any voting securities of the Company; (e) seek or propose, alone or in concert with others, to influence or\ncontrol the Company's management or policies; (f) directly or indirectly enter into any discussions, negotiations, arrangements or understandings\nwith any other person with respect to any of the foregoing activities or propose any of such activities to any other person; (g) advise, assist,\nencourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; or (h) disclose any\nintention, plan or arrangement inconsistent with any of the foregoing. Buyer also agrees that, during the Standstill Period, neither Buyer nor its\naffiliates will: (i) request that the Company or its advisors, directly or indirectly, (A) amend or waive any provision of this Section 11 (including this\nsentence) or (B) otherwise consent to any action inconsistent with any provision of this Section 11 (including this sentence); or (ii) take any initiative\nwith respect to the Company which could require the Company to make a public announcement regarding (A) such initiative, (B) any of the\nactivities referred to this Section 11, (C) the possibility of a Transaction or any similar transaction or (D) the possibility of Buyer or any other person\nacquiring control of the Company, whether by means of a business combination or otherwise. Notwithstanding the foregoing, the limitations and\nprohibitions on Buyer set forth in this paragraph shall no longer apply from the earliest of (x) the date the Company enters into a definitive written\nagreement with any person or group other than Buyer which provides for any transaction where such person or group (or such person's or group's\nstockholders) would be acquiring at least 40% or more of the outstanding capital stock of the Company or all or substantially all of the assets of the\nCompany (each, a "Third Party Acquisition"), (y) the date any person or group other than Buyer enters into a definitive written agreement to acquire,\nor acquires, "beneficial ownership" (as such term is defined under the Exchange Act) of 40% or more of the outstanding capital stock of the\nCompany or (z) the date any person or group other than Buyer publicly proposes a Third Party Acquisition pursuant to a tender or exchange offer\nand/or a proxy solicitation.\n4\n12. Securities Laws. Each party is aware, and will advise its respective Representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it\nis\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. No Implied Obligations. This Agreement binds the parties only with respect to the matters expressly set forth herein. The Company has no\nobligation to disclose any information to Buyer or its Representatives. Neither party is bound or committed to negotiate or consummate a\nTransaction unless and until a definitive written agreement regarding such Transaction has been executed and delivered on behalf of both parties by\ntheir duly authorized officers, in which case the obligations of the parties to consummate such Transaction and to negotiate any matters in connection\ntherewith shall be subject to, and governed solely by, the terms and conditions of such definitive written agreement.\n14. Non-Exclusive Remedies. It is understood and agreed that the Proprietary Information is special, unique and of extraordinary character,\nand that the Company may be irreparably harmed by a breach of this Agreement. Without prejudice to the rights and remedies otherwise available to\na party, each party agrees that the other party shall be entitled to equitable relief by way of injunction or otherwise if such party or any of its\nrespective Representatives breach or threaten to breach any of the provisions of this Agreement.\n15. Assignment. Each party agrees that the rights and remedies of the other party under this Agreement shall inure to the benefit of, and shall\nbe separately enforceable by, the other party, its affiliates, and its and their respective successors and assigns. Neither party shall assign this\nAgreement without the prior written consent of the other party except that, without such consent, each party shall cause all of its obligations under\nthis Agreement to be assumed, either in writing or by operation of law, by any successor (by merger, sale of assets or otherwise) to the business\nof\nsuch party or of any portion thereof. No assignment of this Agreement or of any rights or obligations hereunder shall relieve a party of any of its\nobligations hereunder.\n16. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof\nNew York applicable to contracts executed in and to be performed in that State, without regard to conflict of laws principles. The parties hereto agree\nthat venue in any and all actions and proceedings related to this Agreement shall be had in the State and Federal courts located in the city of New\nYork, New York, which courts shall have personal and subject matter jurisdiction for such purpose, and the parties hereto irrevocably\nsubmit\nto\nthe\njurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.\n17. Miscellaneous. Buyer and the Company each agree to bear its respective costs and expenses, including, without limitation, expenses of\ncounsel, outside auditors, advisors and consultants, in connection with the evaluation of a possible Transaction. This Agreement contains the entire\nagreement between the Company and Buyer concerning the subject matter hereof, and no modification of this Agreement or waiver of any terms\nhereof shall be binding upon the Company or Buyer, unless approved in writing by both of the parties hereto. No failure or delay by a party in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nor further exercise thereof or the exercise of any other right, power or privilege hereunder. If any provision of this Agreement shall, for any reason,\nbe adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder\nof this Agreement but shall be confined in its operation to the provision of this Agreement directly involved in the controversy in which such\njudgment shall have been rendered. This Agreement may be executed in counterparts and by original, facsimile or electronic signatures, each of\nwhich shall be an original, but all of which together shall constitute one and the same agreement.\n5\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this Agreement.\nLIFECELL CORPORATION\nBy:\n/s/ Paul Thomas\nName: Paul Thomas\nTitle: CEO\nAccepted and agreed\nas of the date set forth above:\nKINETIC CONCEPTS, INC.\nBy:\n/s/ Martin J. Landon\nName: Martin J. Landon\nTitle: Sr. Vice President\n6	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIAL\nFebruary 4, 2008\nKinetic Concepts, Inc.\n8023 Vantage Drive\nSan Antonio, TX 78230\nRE: Confidentiality Agreement\nLadies and Gentlemen:\nKinetic Concepts, Inc. (“Buyer”) has expressed an interest in exploring a transaction (a “Transaction”) involving the possible acquisition (by\nmerger, consolidation or otherwise) of all of the outstanding shares of capital stock of LifeCell Corporation, a Delaware corporation (together with\nits subsidiaries and affiliates, the “Company”), and has requested certain information relating to the Company. As a condition to any information\nbeing furnished to Buyer and its Representatives (as defined below), Buyer and the Company agree to be bound by the terms and conditions set forth\nin this letter agreement (“this Agreement”). Buyer further agrees to inform each of its Representatives to whom any information subject to this\nAgreement is disclosed of the terms and conditions of this Agreement, and to cause each such Representative to fully observe and be bound by this\nAgreement (other than Section 11 hereof, except as provided therein) to the same extent as if such Representative were Buyer. This Agreement shall\nsupersede the Mutual Non-Disclosure Agreement entered into between Buyer and Company dated May 9, 2007.\n1. Proprietary Information. As used in this Agreement, the term “Proprietary Information” means all information relating to the Company\n(including, without limitation, all such information concerning or relating to the Company’s assets, liabilities, businesses, customers or suppliers)\nfurnished by or on behalf of the Company or its Representatives, or learned or obtained in any fashion by Buyer or any of its Representatives in\nconnection with visits to the Company’s facilities (which information learned or obtained in connection with such visits shall be deemed disclosed\nby the Company), whether furnished, learned or obtained before, on or after the date hereof, and whether oral, written or electronic. “Proprietary\nInformation” shall include all information of the types described above, regardless of the manner or form in which it is furnished, learned or\nobtained, and includes, without limitation, all data, reports, interpretations, forecasts and records containing or otherwise reflecting any of such\ninformation, whether prepared by the Company or others, and any summaries, analyses or other documents created by Buyer, the Company or others\nwhich refer to, relate to, discuss, constitute or embody all or any portion of any of such information. The term “Proprietary Information” shall not\ninclude, however, information that: (a) is or becomes generally available to the public other than as a result (directly or indirectly) of a disclosure or\nother action by Buyer or its Representatives; (b) was (as demonstrable by written records of Buyer) in Buyer’s possession and obtained on a non-\nconfidential basis prior to the disclosure thereof by the Company or its Representatives; or (c) becomes available to Buyer on a non-confidential\nbasis from a person other than the Company or its Representatives who is not to Buyer’s knowledge after reasonable inquiry otherwise bound by any\nobligation of confidentiality with respect thereto.\n2. Representatives. As used in this Agreement, the term “Representatives” means, as to any person, such person’s affiliates and its and their\ndirectors, officers, employees, agents and advisors (including, without limitation, financial advisors, counsel and accountants). As used in this\nAgreement,\nthe term “person” shall be broadly interpreted to include, without limitation, an individual, the media, and any corporation, company, partnership,\nlimited liability company, or other entity, organization, or association. For the avoidance of doubt, potential purchasers, potential equity investors and\ndebt financing sources shall not constitute Representatives and nothing in this Agreement shall permit Buyer to share Confidential Information with\nany other potential purchaser, potential equity investor or debt financing source, or to enter into or engage in any discussions, negotiations,\nagreements or understandings with (or submit any joint proposal with) any such person regarding a Transaction, the Proprietary Information or the\nCompany without the prior written consent of the Company, which consent may be withheld for any or no reason, and may be conditioned upon\nexecution of a confidentiality agreement in such form as the Company may request in its sole discretion.\n3. Restrictions on Use and Disclosure. Subject to Section 4 below, unless otherwise agreed to in writing by an officer of the Company, Buyer\nagrees, for a period of three (3) years from the date of this Agreement: (a) to keep all Proprietary Information confidential and not to disclose or\nreveal any Proprietary Information to any person other than Representatives of Buyer who are actively and directly participating in the evaluation of\na Transaction on behalf of Buyer; and (b) not to use Proprietary Information for any purpose other than its evaluation of a Transaction. Buyer agrees\nto take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary Information and,\nregardless of compliance by Buyer with the foregoing, shall be responsible and liable to the Company for any breach of the terms of this Agreement\nby Buyer or any of its Representatives. Neither party shall, without the other party’s prior written consent, disclose to any person (other than those of\nits Representatives who are actively and directly participating in the evaluation of a Transaction) any information relating to a Transaction, any\nproposed terms or conditions of a Transaction, or any other information or matters relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof or the fact that Proprietary Information has been made available to Buyer or its\nRepresentatives. Each party agrees to take all reasonable measures to restrain its respective Representatives from prohibited or unauthorized\ndisclosure any information relating to a Transaction and, regardless of compliance by such party with the foregoing, shall be responsible and liable to\nthe other party for any breach of the terms of this Agreement by any of its Representatives.\n4. Compelled Disclosure. In the event that Buyer or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, or pursuant to applicable law, rule, regulation, stock exchange rule or disclosure requirement of the\nSecurities and Exchange Commission (collectively, “Law”), to disclose any Proprietary Information or either party is legally compelled to disclose\nany other information concerning a Transaction, the compelled party shall seek a written opinion from reputable and experienced outside counsel\nthat a specific disclosure is necessary in order for the compelled party not to be in violation of, or default under, an applicable Law or order. Each\nparty agrees that it shall provide the non-compelled party with prompt notice of such request or requirement as well as a copy of such opinion\ntogether with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult with\nand consider the suggestions of the non-compelled party concerning the nature and scope of the information the compelled party proposes to\ndisclose. Each party agrees to cooperate fully with and not to oppose any action by the non-compelled party to obtain a protective order or other\nappropriate remedy in order to limit such disclosure. In the event that no such protective order or other remedy is obtained, or in the event that the\nnon-compelled party waives compliance with the terms of this Agreement, the compelled party may disclose only that part of the Proprietary\nInformation or other information concerning a Transaction as it is advised by counsel in writing is legally required to be disclosed, and shall use its\nbest efforts to ensure that all Proprietary Information and other information concerning a Transaction that is so disclosed will be accorded\nconfidential treatment.\n2\n5. Ownership. Buyer acknowledges that the Proprietary Information is and shall remain the sole and exclusive property of the Company, and\nthat the Company has the exclusive right, title and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of this Agreement or as a result of any disclosure of Proprietary Information.\n6. Return or Destruction. At any time the Company so requests in writing for any or no reason, Buyer shall, and shall cause its Representatives\nto: (a) promptly return to the Company all Proprietary Information furnished directly or indirectly by or on behalf of the Company or any of its\nRepresentatives; (b) promptly destroy all copies, summaries, extracts, memoranda, notes and other writings of, containing or based upon any\nProprietary Information, regardless of who prepared such writings; and (c) promptly expunge all Proprietary Information from all computers and\nother electronic or other storage devices. Neither Buyer nor any of its Representatives shall retain any copies or other reproductions in whole or in\npart of any such material. Within fifteen (15) days following the Company’s request to Buyer to take the actions set forth in Sections 6(a), (b) and\n(c) of this Agreement, an officer of Buyer shall certify to the Company, in writing, that Buyer and its Representatives have complied with this\nSection 6. Compliance with this Section 6 shall not terminate or relieve Buyer or its Representatives from their obligations under this Agreement.\n7. No Warranty. Buyer acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any information provided to Buyer or its Representatives. Except as may be provided in a definitive\nwritten agreement with regard to any Transaction between the Company and Buyer, Buyer agrees that neither the Company nor any of the\nCompany’s Representatives shall have any liability to Buyer or any of Buyer’s Representatives relating to or arising from the use of any information\nby Buyer or its Representatives or for any errors in or omissions from such information.\n8. Procedures. Buyer acknowledges that the Company may establish procedures and guidelines governing the process for the submission and\nevaluation of proposals with respect to a Transaction, and any other matters relating thereto (the “Procedures”). Buyer acknowledges and agrees that:\n(a) the Company and its Representatives are free to conduct the process leading up to a Transaction as the Company and its Representatives, in their\nsole discretion, determine (including, without limitation, by negotiating with any third party and entering into a preliminary or definitive written\nagreement without prior notice to Buyer or any other person); (b) the Company reserves the right, in its sole discretion, to change the Procedures at\nany time without prior notice to Buyer or any other person, to reject any and all proposals made by Buyer or any of its Representatives regarding a\nTransaction, and to terminate discussions and negotiations with Buyer at any time and for any reason; and (c) neither the Company nor any of its\nRepresentatives nor any third party with whom the Company may enter into any agreement for or complete any transaction, shall by virtue of this\nAgreement have any liability to Buyer or its Representatives arising out of or relating to such transaction.\n9. Communications. Buyer acknowledges and agrees that all (a) communications regarding a Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding the Procedures will be submitted only\nto “chief” level executives of the Company or employees of Merrill Lynch & Co. specifically designated in writing by the Company or Merrill\nLynch & Co. Each party agrees to not, and shall cause its Representatives not to, initiate or maintain contact with any security-holder, director,\nofficer, employee, partner, manager, member, agent, advisor, representative, customer, supplier, independent contractor, affiliate or lender of the\nother party with respect to, or relating or referring in any way to, a Transaction or the Proprietary Information, other than in the ordinary course of\nbusiness unrelated to a Transaction, unless specifically authorized in advance in writing by the other party.\n3\n10. Non-Solicitation. Each party agrees that, without the other party’s consent, it will not, and it will cause its affiliates to not, for a period of\ntwo (2) years from the date hereof, directly or indirectly, solicit for employment any person who is now employed by the other party; provided,\nhowever, that a party shall not be prohibited from: (a) conducting generalized solicitations for employees (which solicitations are not specifically\ntargeted at the other party’s employees) through the use of media advertisements, professional search firms or otherwise; (b) soliciting or employing\nany person with whom such party and its Representatives have not had contact (or otherwise become aware of) in the course of their evaluation of a\nTransaction, or (c) if Buyer and the Company consummate a Transaction, employing such persons connected with the Company in accordance with\na definitive written agreement with respect to such Transaction.\n11. Standstill. Buyer agrees that, for a period of eighteen (18) months from the date hereof (the “Standstill Period”), neither it nor its affiliates\nwill, unless invited by the Board of Directors of the Company in writing: (a) acquire, offer or propose to acquire, or agree or seek to acquire, directly\nor indirectly, by purchase or otherwise, any securities or direct or indirect rights or options to acquire any securities of the Company or any\nbusinesses or assets of the Company; provided, however that the foregoing shall not restrict Buyer and its affiliates, collectively, from acquiring, in\nthe ordinary course of their business, up to 1% of the outstanding publicly-traded common stock of the Company; (b) enter into or agree, offer,\npropose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any acquisition transaction or other business combination\nrelating to all or part of the Company or any acquisition transaction for all or part of the assets of the Company or any of its businesses; (c) make, or\nin any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange\nCommission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company;\n(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) with respect to any voting securities of the Company; (e) seek or propose, alone or in concert with others, to influence or\ncontrol the Company’s management or policies; (f) directly or indirectly enter into any discussions, negotiations, arrangements or understandings\nwith any other person with respect to any of the foregoing activities or propose any of such activities to any other person; (g) advise, assist,\nencourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; or (h) disclose any\nintention, plan or arrangement inconsistent with any of the foregoing. Buyer also agrees that, during the Standstill Period, neither Buyer nor its\naffiliates will: (i) request that the Company or its advisors, directly or indirectly, (A) amend or waive any provision of this Section 11 (including this\nsentence) or (B) otherwise consent to any action inconsistent with any provision of this Section 11 (including this sentence); or (ii) take any initiative\nwith respect to the Company which could require the Company to make a public announcement regarding (A) such initiative, (B) any of the\nactivities referred to this Section 11, (C) the possibility of a Transaction or any similar transaction or (D) the possibility of Buyer or any other person\nacquiring control of the Company, whether by means of a business combination or otherwise. Notwithstanding the foregoing, the limitations and\nprohibitions on Buyer set forth in this paragraph shall no longer apply from the earliest of (x) the date the Company enters into a definitive written\nagreement with any person or group other than Buyer which provides for any transaction where such person or group (or such person’s or group’s\nstockholders) would be acquiring at least 40% or more of the outstanding capital stock of the Company or all or substantially all of the assets of the\nCompany (each, a “Third Party Acquisition”), (y) the date any person or group other than Buyer enters into a definitive written agreement to acquire,\nor acquires, “beneficial ownership” (as such term is defined under the Exchange Act) of 40% or more of the outstanding capital stock of the\nCompany or (z) the date any person or group other than Buyer publicly proposes a Third Party Acquisition pursuant to a tender or exchange offer\nand/or a proxy solicitation.\n4\n12. Securities Laws. Each party is aware, and will advise its respective Representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. No Implied Obligations. This Agreement binds the parties only with respect to the matters expressly set forth herein. The Company has no\nobligation to disclose any information to Buyer or its Representatives. Neither party is bound or committed to negotiate or consummate a\nTransaction unless and until a definitive written agreement regarding such Transaction has been executed and delivered on behalf of both parties by\ntheir duly authorized officers, in which case the obligations of the parties to consummate such Transaction and to negotiate any matters in connection\ntherewith shall be subject to, and governed solely by, the terms and conditions of such definitive written agreement.\n14. Non-Exclusive Remedies. It is understood and agreed that the Proprietary Information is special, unique and of extraordinary character,\nand that the Company may be irreparably harmed by a breach of this Agreement. Without prejudice to the rights and remedies otherwise available to\na party, each party agrees that the other party shall be entitled to equitable relief by way of injunction or otherwise if such party or any of its\nrespective Representatives breach or threaten to breach any of the provisions of this Agreement.\n15. Assignment. Each party agrees that the rights and remedies of the other party under this Agreement shall inure to the benefit of, and shall\nbe separately enforceable by, the other party, its affiliates, and its and their respective successors and assigns. Neither party shall assign this\nAgreement without the prior written consent of the other party except that, without such consent, each party shall cause all of its obligations under\nthis Agreement to be assumed, either in writing or by operation of law, by any successor (by merger, sale of assets or otherwise) to the business of\nsuch party or of any portion thereof. No assignment of this Agreement or of any rights or obligations hereunder shall relieve a party of any of its\nobligations hereunder.\n16. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nNew York applicable to contracts executed in and to be performed in that State, without regard to conflict of laws principles. The parties hereto agree\nthat venue in any and all actions and proceedings related to this Agreement shall be had in the State and Federal courts located in the city of New\nYork, New York, which courts shall have personal and subject matter jurisdiction for such purpose, and the parties hereto irrevocably submit to the\njurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.\n17. Miscellaneous. Buyer and the Company each agree to bear its respective costs and expenses, including, without limitation, expenses of\ncounsel, outside auditors, advisors and consultants, in connection with the evaluation of a possible Transaction. This Agreement contains the entire\nagreement between the Company and Buyer concerning the subject matter hereof, and no modification of this Agreement or waiver of any terms\nhereof shall be binding upon the Company or Buyer, unless approved in writing by both of the parties hereto. No failure or delay by a party in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nor further exercise thereof or the exercise of any other right, power or privilege hereunder. If any provision of this Agreement shall, for any reason,\nbe adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder\nof this Agreement but shall be confined in its operation to the provision of this Agreement directly involved in the controversy in which such\njudgment shall have been rendered. This Agreement may be executed in counterparts and by original, facsimile or electronic signatures, each of\nwhich shall be an original, but all of which together shall constitute one and the same agreement.\n5\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this Agreement.\nLIFECELL CORPORATION\nBy: /s/ Paul Thomas\nName: Paul Thomas\nTitle: CEO\nAccepted and agreed\nas of the date set forth above:\nKINETIC CONCEPTS, INC.\nBy: /s/ Martin J. Landon\nName: Martin J. Landon\nTitle: Sr. Vice President\n6
de16dbc40a06dd67d07169a63d6d4fbd.pdf	effective_date jurisdiction party term	EX-10.127 4 dex10127.htm EMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nExhibit 10.127\nEMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nAGREEMENT entered into this 11 day of September 2009 (start date) by and between Comverse, Inc., a Delaware Corporation, on\nbehalf of itself and its subsidiaries (the “Company”) and Danna Rabin “Employee”.\nWHEREAS, the Employee has agreed to be employed by the Company, and\nWHEREAS, the parties desire to provide for the terms of Employee’s services to the Company,\nNOW, THEREFORE, in consideration of Employee’s employment by the Company, the compensation received by Employee from time\nto time hereunder, and the mutual covenants contained herein, the parties agree as follows:\n1. Duties\n1.1 The Company hereby hires Danna Rabin as an at-will employee for the position of Vice President of Professional Services Sales for a\nperiod commencing on the date of this Agreement and terminating in accordance with the provisions of Section 3 of this Agreement. Employee shall\ndevote essentially his/her full time and best efforts to the advancement of the interests of the Company, and shall perform such duties as may be\nprescribed from time to time by an Officer of the Company. For the purposes of this Section, “full time” shall be defined as at least forty (40) hours\nper week.\n2. Compensation\n2.1 In consideration of the services to be performed under this Agreement, Employee shall receive as gross compensation the sum of $6,923.07\n(bi-weekly) subject to withholding and other applicable taxes. At least once during each year of employment, an Officer of the Company shall\nreview the performance of Employee and shall make such adjustments to his/her gross compensation as deemed appropriate by the Company. The\nEmployee shall also be entitled to participate in benefit programs the Company establishes and makes generally available to all employees of the\nCompany, to the extent the employee is eligible to participate based on tenure, age, pay, health and other eligibility requirements.\n3. Termination\n3.1 Employment under this Agreement may be terminated immediately by the Company at any time for cause. “Cause” shall, for the purpose\nof this Section, be defined as a good faith finding by the Company of a material violation of any of the provisions of this Agreement or some other\nmaterial breach of duty owed by Employee to the Company, violation of a Company policy or procedure, fraud or dishonesty, theft of Company\nassets, gross negligence or misconduct, or the conviction or plea of nolo contendere to a felony or crime of moral turpitude . Employee may also be\nterminated without cause as follows: (1) if Employee is on international assignment and is terminated with an effective termination date prior to the\nend date of the international assignment period, Employee is entitled to three months’ advance notice of termination or, at the Company’s election,\npayment in lieu of notice of Employee’s then current gross compensation (plus accrued bonus and commission if applicable) for a three month\nperiod;\n1\n2\nor (2) if Employee is terminated with an effective termination date after the end date of the international assignment period, Employee is entitled to\ntwo weeks’ advance notice of termination or, at the Company’s election, payment in lieu of notice of Employee’s then current gross compensation\n(plus accrued bonus and commission if applicable) for a two week period.\nNolo Contendere is a plea entered by a defendant in a criminal case where a defendant neither admits nor denies guilt, but the criminal court\ncan impose a fine or a prison sentence. The main difference between a plea of nolo contendere and a guilty plea is that a nolo contendere plea\ncan not be used against a defendant in a civil action for the same acts, where as a guilty plea can be so used.\nCrimes of moral turpitude are crimes that are morally bad, contrary to what is accepted and customary in society.\n4. Disclosure and Surrender of Confidential Information\n4.1 Employee expressly acknowledges that he/she has received and will continue to receive “Confidential Information” pertaining to the\nproducts, services, operations and/or business affairs of the Company. For the purposes of this Agreement, “Confidential Information” shall include,\nbut not be limited to, information concerning or related to the Company’s financial matters, business methods and practices, the Company’s\nproprietary computer software, firmware, hardware, documentation, scientific, technical, economic, or engineering information including patterns,\nplans, compilations, program devices, formulae, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether\ntangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically or photographically (including,\nwithout limiting the generality of the foregoing, any such items created, developed, produced or made known to Employee during the period of or\narising out of Employee’s employment with the Company), the Company’s suppliers, customers and potential customers, confidential information\ndisclosed to the Company by a third party, the Company’s sales and marketing plans, and any other information not generally known to the public\nwhich, if misused or disclosed, could have a reasonable possibility of adversely affecting the Company’s business or financial condition.\n4.2 In recognition of the fact that such Confidential Information contains valuable trade secrets of the Company, Employee agrees that he/she\nshall not, during the term of this Agreement and thereafter, use or disclose to any third party any such Confidential Information for any reason or\npurpose whatsoever without the express written consent of the Company. Employee understands that, pursuant to the Economic Espionage Act,\nviolation of this Section 4.2 could result in a fine, imprisonment or both.\n4.3 Employee hereby assigns to the Company any and all rights, title and interest that Employee now has in the Company’s Confidential\nInformation and agrees to assign to the Company any and all rights, title and interest that Employee may hereafter acquire in the Company’s\nConfidential Information.\n4.4 Upon termination of his/her employment with the Company, for whatever reason, Employee will promptly surrender to the Company all\ncopies, in whatever form, of the Company’s Confidential Information in Employee’s possession or control, and Employee will not remove or\ntransmit by any means from the Company or take with him/her any of the Company’s Confidential Information that is embodied in any tangible\nmedium of expression.\n2\n1\n2\n5. Confidentiality of Previous Employers/Clients\n5.1 Employee represents that his/her performance hereunder does not and will not breach any agreement to keep in confidence any proprietary\ninformation acquired by Employee in confidence or in trust of a present or former employer or client. Employee also understands that at no time\nduring his/her employment with the Company is Employee to breach any obligation of confidentiality that Employee has to present or former\nemployers or clients, and Employee agrees to fulfill all such obligations during his/her employment with the Company. Employee agrees that he/she\nshall not disclose to the Company any proprietary information of a third party without written permission from the third party. Employee understands\nthat, pursuant to the Economic Espionage Act, violation of this Section could result in a fine, imprisonment or both.\n6. Disclosure of Inventions\n6.1 For the purposes of this Agreement, “Inventions” shall have the same meaning as set forth in 35 U.S .C. §§ 100 and 101, and may include\nwithout limitation, any of the following as applicable: all discoveries, developments, designs, improvements, inventions, formulae, processes,\ntechniques, computer programs, strategies, specific computer-related or telecommunications-related know-how and data.\n6.2 During Employee’s employment by the Company and for a period of six (6) months thereafter, Employee will promptly and fully disclose\nto the Company (and to any persons designated by it) any and all Inventions generated or conceived or reduced to practice or learned by Employee,\neither alone or jointly with others, which result from or relate to tasks assigned by the Company to Employee, or which result from or relate to tasks,\nprojects or products being conducted or made within the Company about which Employee has obtained substantial knowledge during his/her\nemployment with the Company.\n7. Ownership Rights and Assignment of Inventions\n7.1 Employee and the Company hereby agree that, to the extent the United States copyright laws or the laws of any jurisdiction bound to\nrecognize rights of copyright, author’s rights or any similar other rights so permit, all services rendered by Employee hereunder, and the work\nproduct resulting from same, are and shall be deemed to be performed by Employee as work for hire or works made for hire for the Company, and\nare and shall be the sole and exclusive property of the Company. To the extent such laws or any rule of law does not so permit, then Employee\nexpressly agrees to assign to the Company any and all rights, title and interest which Employee has or hereafter acquires in such services and work\nproduct, including without limitation, any and all rights to copyrights, trademarks and trade secrets thereto.\n7.2 Employee agrees that all Inventions generated or conceived or reduced to practice or learned by Employee, either alone or jointly with\nothers, during the following time periods: (a) during Employee’s employment by the Company and (b) for a period of six (6) months thereafter, shall\nbe the sole property of the Company and its assigns, and the Company and its assigns shall be the sole owner of all patent applications and all patents\nissued in connection therewith, provided however, that such Inventions in any way result from or relate to tasks assigned to the Employee during\nhis/her employment at the Company, or which result from or relate to tasks, projects or products being conducted or made within the Company about\nwhich Employee obtained substantial knowledge during his/her employment\n3\nat the Company. Employee hereby assigns to the Company any and all rights, title and interest which Employee has in such Inventions, and agrees to\nassign to the Company any and all rights, title and interest which Employee may hereafter acquire in such Inventions.\n7.3 With respect to all such Inventions described in Section 6.2 and Section 7.2 above, Employee further agrees to assist the Company in every\nproper way (but at the Company’s expense) to apply for, prosecute, obtain, defend and enforce patents, and other proprietary rights and protections\nrelating to said Inventions in any and all countries, including but not limited to, as the Company may elect: (a) taking all lawful oaths and doing all\nlawful acts, including giving testimony, and (b) executing all documents, including, but not limited to, all applications, powers, assignments and\nother papers deemed by the Company or persons designated by it to be necessary or advisable.\n7.4 Employee’s obligations as set forth in Section 6.2 and Section 7.3 above shall continue beyond the termination of his/her employment by\nthe Company, but the Company shall compensate Employee at a reasonable rate after Employee’s termination for time actually spent by Employee\non such assistance. In the event the Company is unable, after reasonable effort, to secure Employee’s signature on any document or documents\nneeded to apply for, prosecute, obtain, defend or enforce any patent, copyright, trademark, trade secret, or other proprietary right or protection\nrelating to an Invention described in Sections 6 and 7 above, whether because of Employee’s physical or mental incapacity or for any other reason\nwhatsoever, Employee hereby irrevocably designates and appoints the Company and its duly authorized Officers and agents as Employee’s agent\ncoupled with an interest and attorney-in-fact, to act for and in Employee’s behalf and stead to execute and file any such documents and to do all\nother lawfully permitted acts to further the Company’s rights hereunder with the same legal force and effect as if executed by Employee.\n8. Previous Inventions\n8.1 As a matter of record Employee has identified below and in an attachment hereto (as required), all Inventions generated or conceived or\nreduced to practice or learned by Employee, either alone or jointly with others, prior to his/her employment by the Company, which Employee\ndesires to remove from the operation of this Agreement. Employee represents and warrants that such list is complete. If there is no such information\nlisted, Employee represents that he/she made no such Inventions at the time of signing this Agreement.\nThe following is a complete list of all Inventions relative to the subject matter of my service as an employee of the Company that have\nbeen generated or conceived or first reduced to practice or learned by me, alone or jointly with others, prior to my employment by the Company:\n[X]\nNo Inventions\n[]\nSee Below:\n[]\nAdditional sheets attached\n4\n9. Restrictive Covenant\n9.1 For and in consideration of the compensation to be paid by the Company pursuant to the terms hereof, and in recognition of the fact that\nEmployee will have access to Confidential Information and other valuable rights of the Company, Employee covenants and agrees that he/she will\nnot, at any time during his/her employment with the Company, and for a period of six (6) months thereafter, directly or indirectly, engage in any\nbusiness or in any activity related to the development, sale, production, manufacturing, marketing or distribution of products or services which are in\ncompetition with products or services which the Company or any of its subsidiaries produces, sells, manufactures, markets, distributes or has interest\nin, in any state or foreign country in which the Company or any of its subsidiaries then conducts business or reasonably has plans to conduct\nbusiness. It is not the intent of this covenant to bar Employee from employment in any company whose general business is the manufacture of\ncommunications equipment or delivery of communications services, only to limit specific and direct competition with the Company. Employee\nfurther agrees that during his/her employment by the Company and for a period of (12) months thereafter, Employee shall not, directly or indirectly,\ninduce, attempt to induce, or aid others in inducing, a salaried employee of the Company to accept employment or affiliation with another firm or\ncorporation engaging in such business or activity of which Employee is an employee, owner, partner or consultant.\n9.2 The Company and Employee agree that the duration and geographic scope of this Restrictive Covenant provision, set forth in this\nSection 9., are reasonable. In the event that any court of competent jurisdiction determines that the duration or the geographic scope, or both, are\nunreasonable and that such provision is to that extent unenforceable, the Company and Employee hereto agree that the provision shall remain in full\nforce and effect for the greatest time period and in the greatest area that would not render it unenforceable. The Company and Employee intend that\nthis provision shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States of\nAmerica and each and every political subdivision of each and every country outside the United States of America where this provision is intended to\nbe effective.\n9.3 Notwithstanding the foregoing, nothing contained in this Agreement shall prevent Employee from being an investor in securities of a\ncompetitor listed on a national securities exchange or actively traded over-the-counter so long as such investments are in amounts not significant as\ncompared to his/her total investments or to the aggregate of the outstanding securities of the issuer of the same class or issue of the specific securities\ninvolved.\n10. Damages - Injunctive Relief\n10.1 In the event of a breach or threatened breach by Employee of any of the provisions of this Agreement, the Company shall be entitled to\ntemporary and/or permanent injunctions in order to prevent or restrain any such breach by Employee or by Employee’s partners, agents,\nrepresentatives, servants, employers and employees. Said remedies shall be in addition to, and not in limitation of, any other rights or remedies to\nwhich the Company is or may be entitled at law, in equity, or under this Agreement.\n11. Assignment\n11.1 Employee acknowledges that the services to be rendered by him/her are unique and personal. Accordingly, Employee may not assign any\nof his/her rights or delegate any of his/her duties or\n5\nobligations under this Agreement. In the event that the Company shall be merged with, or consolidated into, any other corporation or entity, or in the\nevent that the Company shall sell or transfer substantially all of its assets to another corporation or entity, the terms of this Agreement shall inure to\nthe benefit of, and be assumed by, such corporation or entity.\n12. Notices\n12.1 Any notice required or desired to be given under this Agreement shall be deemed given if in writing sent by certified mail, to his/her\nresidence in the case of Employee, or to its principal office in the case of the Company.\n13. Applicable Law\n13.1 This Agreement has been made in and shall be governed by the laws of the Commonwealth of Massachusetts.\n14. Massachusetts Courts\n14.1 Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement may be brought and prosecuted in\nsuch court or courts located in the Commonwealth of Massachusetts as is provided by law; and the parties consent to the jurisdiction of said court or\ncourts located in the Commonwealth of Massachusetts and to service of process by registered mail, return receipt requested, or by any other manner\nprovided by law.\n15. Severability\n15.1 If any provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in\nfull force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full\nforce and effect in all other circumstances.\n16. Waiver\n16.1 No waiver by either party of any breach or violation of any provision of this Agreement shall operate or be construed as a waiver of any\nsubsequent breach or violation hereof.\n17. Headings\n17.1 The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of\nthis Agreement.\n18. Survival\n18.1 The provisions of Sections 4., 6., 7., 9., 10., 11., 12., 13., 14., 15., 16., and 19., herein shall survive the termination of this Agreement.\n6\n19. Amendments\n19.1 This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge hereof be affected except by an\ninstrument in writing executed by or on behalf of the party against whom enforcement of any such amendment, waiver, change, modification,\nconsent or discharge is sought.\nThe parties have signed this Agreement the day and year first above written.\nEmployee: Danna Rabin\nComverse, Inc.\n/s/ Danna Rabin\nBy: /s/ Rebecca L. Smith\nEmployee Signature\nEmployee Print: Danna Rabin\nRebecca L. Smith\n10/26/2009\n10/27/2009\nDate\nDate\n7	EX-10.127 4 dex10127.htm EMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nExhibit 10.127\nEMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nAGREEMENT entered into this 11 day of September 2009 (start date) by and between Comverse, Inc., a Delaware Corporation, on\nbehalf of itself and its subsidiaries (the “Company”) and Danna Rabin “Employee”.\nWHEREAS, the Employee has agreed to be employed by the Company, and\nWHEREAS, the parties desire to provide for the terms of Employee’s services to the Company,\nNOW, THEREFORE, in consideration of Employee’s employment by the Company, the compensation received by Employee from time\nto time hereunder, and the mutual covenants contained herein, the parties agree as follows:\n1. Duties\n1.1 The Company hereby hires Danna Rabin as an at-will employee for the position of Vice President of Professional Services Sales for a\nperiod commencing on the date of this Agreement and terminating in accordance with the provisions of Section 3 of this Agreement. Employee shall\ndevote essentially his/her full time and best efforts to the advancement of the interests of the Company, and shall perform such duties as may be\nprescribed from time to time by an Officer of the Company. For the purposes of this Section, “full time” shall be defined as at least forty (40) hours\nper week.\n2. Compensation\n2.1 In consideration of the services to be performed under this Agreement, Employee shall receive as gross compensation the sum of $6,923.07\n(bi-weekly) subject to withholding and other applicable taxes. At least once during each year of employment, an Officer of the Company shall\nreview the performance of Employee and shall make such adjustments to his/her gross compensation as deemed appropriate by the Company. The\nEmployee shall also be entitled to participate in benefit programs the Company establishes and makes generally available to all employees of the\nCompany, to the extent the employee is eligible to participate based on tenure, age, pay, health and other eligibility requirements.\n3. Termination\n3.1 Employment under this Agreement may be terminated immediately by the Company at any time for cause. “Cause” shall, for the purpose\nof this Section, be defined as a good faith finding by the Company of a material violation of any of the provisions of this Agreement or some other\nmaterial breach of duty owed by Employee to the Company, violation of a Company policy or procedure, fraud or dishonesty, theft of Company\nassets, gross negligence or misconduct, or the conviction or plea of nolo contendere! to a felony or crime of moral turpitude2. Employee may also be\nterminated without cause as follows: (1) if Employee is on international assignment and is terminated with an effective termination date prior to the\nend date of the international assignment period, Employee is entitled to three months’ advance notice of termination or, at the Company’s election,\npayment in lieu of notice of Employee’s then current gross compensation (plus accrued bonus and commission if applicable) for a three month\nperiod;\nor (2) if Employee is terminated with an effective termination date after the end date of the international assignment period, Employee is entitled to\ntwo weeks’ advance notice of termination or, at the Company’s election, payment in lieu of notice of Employee’s then current gross compensation\n(plus accrued bonus and commission if applicable) for a two week period.\n1 Nolo Contendere is a plea entered by a defendant in a criminal case where a defendant neither admits nor denies guilt, but the criminal court\ncan impose a fine or a prison sentence. The main difference between a plea of nolo contendere and a guilty plea is that a nolo contendere plea\ncan not be used against a defendant in a civil action for the same acts, where as a guilty plea can be so used.\n2 Crimes of moral turpitude are crimes that are morally bad, contrary to what is accepted and customary in society.\n4, Disclosure and Surrender of Confidential Information\n4.1 Employee expressly acknowledges that he/she has received and will continue to receive “Confidential Information” pertaining to the\nproducts, services, operations and/or business affairs of the Company. For the purposes of this Agreement, “Confidential Information” shall include,\nbut not be limited to, information concerning or related to the Company’s financial matters, business methods and practices, the Company’s\nproprietary computer software, firmware, hardware, documentation, scientific, technical, economic, or engineering information including patterns,\nplans, compilations, program devices, formulae, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether\ntangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically or photographically (including,\nwithout limiting the generality of the foregoing, any such items created, developed, produced or made known to Employee during the period of or\narising out of Employee’s employment with the Company), the Company’s suppliers, customers and potential customers, confidential information\ndisclosed to the Company by a third party, the Company’s sales and marketing plans, and any other information not generally known to the public\nwhich, if misused or disclosed, could have a reasonable possibility of adversely affecting the Company’s business or financial condition.\n4.2 In recognition of the fact that such Confidential Information contains valuable trade secrets of the Company, Employee agrees that he/she\nshall not, during the term of this Agreement and thereafter, use or disclose to any third party any such Confidential Information for any reason or\npurpose whatsoever without the express written consent of the Company. Employee understands that, pursuant to the Economic Espionage Act,\nviolation of this Section 4.2 could result in a fine, imprisonment or both.\n4.3 Employee hereby assigns to the Company any and all rights, title and interest that Employee now has in the Company’s Confidential\nInformation and agrees to assign to the Company any and all rights, title and interest that Employee may hereafter acquire in the Company’s\nConfidential Information.\n4.4 Upon termination of his/her employment with the Company, for whatever reason, Employee will promptly surrender to the Company all\ncopies, in whatever form, of the Company’s Confidential Information in Employee’s possession or control, and Employee will not remove or\ntransmit by any means from the Company or take with him/her any of the Company’s Confidential Information that is embodied in any tangible\nmedium of expression.\n5. Confidentiality of Previous Employers/Clients\n5.1 Employee represents that his/her performance hereunder does not and will not breach any agreement to keep in confidence any proprietary\ninformation acquired by Employee in confidence or in trust of a present or former employer or client. Employee also understands that at no time\nduring his/her employment with the Company is Employee to breach any obligation of confidentiality that Employee has to present or former\nemployers or clients, and Employee agrees to fulfill all such obligations during his/her employment with the Company. Employee agrees that he/she\nshall not disclose to the Company any proprietary information of a third party without written permission from the third party. Employee understands\nthat, pursuant to the Economic Espionage Act, violation of this Section could result in a fine, imprisonment or both.\n6. Disclosure of Inventions\n6.1 For the purposes of this Agreement, “Inventions” shall have the same meaning as set forth in 35 U.S.C. §§ 100 and 101, and may include\nwithout limitation, any of the following as applicable: all discoveries, developments, designs, improvements, inventions, formulae, processes,\ntechniques, computer programs, strategies, specific computer-related or telecommunications-related know-how and data.\n6.2 During Employee’s employment by the Company and for a period of six (6) months thereafter, Employee will promptly and fully disclose\nto the Company (and to any persons designated by it) any and all Inventions generated or conceived or reduced to practice or learned by Employee,\neither alone or jointly with others, which result from or relate to tasks assigned by the Company to Employee, or which result from or relate to tasks,\nprojects or products being conducted or made within the Company about which Employee has obtained substantial knowledge during his/her\nemployment with the Company.\n7. Ownership Rights and Assignment of Inventions\n7.1 Employee and the Company hereby agree that, to the extent the United States copyright laws or the laws of any jurisdiction bound to\nrecognize rights of copyright, author’s rights or any similar other rights so permit, all services rendered by Employee hereunder, and the work\nproduct resulting from same, are and shall be deemed to be performed by Employee as work for hire or works made for hire for the Company, and\nare and shall be the sole and exclusive property of the Company. To the extent such laws or any rule of law does not so permit, then Employee\nexpressly agrees to assign to the Company any and all rights, title and interest which Employee has or hereafter acquires in such services and work\nproduct, including without limitation, any and all rights to copyrights, trademarks and trade secrets thereto.\n7.2 Employee agrees that all Inventions generated or conceived or reduced to practice or learned by Employee, either alone or jointly with\nothers, during the following time periods: (a) during Employee’s employment by the Company and (b) for a period of six (6) months thereafter, shall\nbe the sole property of the Company and its assigns, and the Company and its assigns shall be the sole owner of all patent applications and all patents\nissued in connection therewith, provided however, that such Inventions in any way result from or relate to tasks assigned to the Employee during\nhis/her employment at the Company, or which result from or relate to tasks, projects or products being conducted or made within the Company about\nwhich Employee obtained substantial knowledge during his/her employment\n3\nat the Company. Employee hereby assigns to the Company any and all rights, title and interest which Employee has in such Inventions, and agrees to\nassign to the Company any and all rights, title and interest which Employee may hereafter acquire in such Inventions.\n7.3 With respect to all such Inventions described in Section 6.2 and Section 7.2 above, Employee further agrees to assist the Company in every\nproper way (but at the Company’s expense) to apply for, prosecute, obtain, defend and enforce patents, and other proprietary rights and protections\nrelating to said Inventions in any and all countries, including but not limited to, as the Company may elect: (a) taking all lawful oaths and doing all\nlawful acts, including giving testimony, and (b) executing all documents, including, but not limited to, all applications, powers, assignments and\nother papers deemed by the Company or persons designated by it to be necessary or advisable.\n7.4 Employee’s obligations as set forth in Section 6.2 and Section 7.3 above shall continue beyond the termination of his/her employment by\nthe Company, but the Company shall compensate Employee at a reasonable rate after Employee’s termination for time actually spent by Employee\non such assistance. In the event the Company is unable, after reasonable effort, to secure Employee’s signature on any document or documents\nneeded to apply for, prosecute, obtain, defend or enforce any patent, copyright, trademark, trade secret, or other proprietary right or protection\nrelating to an Invention described in Sections 6 and 7 above, whether because of Employee’s physical or mental incapacity or for any other reason\nwhatsoever, Employee hereby irrevocably designates and appoints the Company and its duly authorized Officers and agents as Employee’s agent\ncoupled with an interest and attorney-in-fact, to act for and in Employee’s behalf and stead to execute and file any such documents and to do all\nother lawfully permitted acts to further the Company’s rights hereunder with the same legal force and effect as if executed by Employee.\n8. Previous Inventions\n8.1 As a matter of record Employee has identified below and in an attachment hereto (as required), all Inventions generated or conceived or\nreduced to practice or learned by Employee, either alone or jointly with others, prior to his/her employment by the Company, which Employee\ndesires to remove from the operation of this Agreement. Employee represents and warrants that such list is complete. If there is no such information\nlisted, Employee represents that he/she made no such Inventions at the time of signing this Agreement.\nThe following is a complete list of all Inventions relative to the subject matter of my service as an employee of the Company that have\nbeen generated or conceived or first reduced to practice or learned by me, alone or jointly with others, prior to my employment by the Company:\n[X] No Inventions\n[ 1] See Below:\n[ 1] Additional sheets attached\n9. Restrictive Covenant\n9.1 For and in consideration of the compensation to be paid by the Company pursuant to the terms hereof, and in recognition of the fact that\nEmployee will have access to Confidential Information and other valuable rights of the Company, Employee covenants and agrees that he/she will\nnot, at any time during his/her employment with the Company, and for a period of six (6) months thereafter, directly or indirectly, engage in any\nbusiness or in any activity related to the development, sale, production, manufacturing, marketing or distribution of products or services which are in\ncompetition with products or services which the Company or any of its subsidiaries produces, sells, manufactures, markets, distributes or has interest\nin, in any state or foreign country in which the Company or any of its subsidiaries then conducts business or reasonably has plans to conduct\nbusiness. It is not the intent of this covenant to bar Employee from employment in any company whose general business is the manufacture of\ncommunications equipment or delivery of communications services, only to limit specific and direct competition with the Company. Employee\nfurther agrees that during his/her employment by the Company and for a period of (12) months thereafter, Employee shall not, directly or indirectly,\ninduce, attempt to induce, or aid others in inducing, a salaried employee of the Company to accept employment or affiliation with another firm or\ncorporation engaging in such business or activity of which Employee is an employee, owner, partner or consultant.\n9.2 The Company and Employee agree that the duration and geographic scope of this Restrictive Covenant provision, set forth in this\nSection 9., are reasonable. In the event that any court of competent jurisdiction determines that the duration or the geographic scope, or both, are\nunreasonable and that such provision is to that extent unenforceable, the Company and Employee hereto agree that the provision shall remain in full\nforce and effect for the greatest time period and in the greatest area that would not render it unenforceable. The Company and Employee intend that\nthis provision shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States of\nAmerica and each and every political subdivision of each and every country outside the United States of America where this provision is intended to\nbe effective.\n9.3 Notwithstanding the foregoing, nothing contained in this Agreement shall prevent Employee from being an investor in securities of a\ncompetitor listed on a national securities exchange or actively traded over-the-counter so long as such investments are in amounts not significant as\ncompared to his/her total investments or to the aggregate of the outstanding securities of the issuer of the same class or issue of the specific securities\ninvolved.\n10. Damages - Injunctive Relief\n10.1 In the event of a breach or threatened breach by Employee of any of the provisions of this Agreement, the Company shall be entitled to\ntemporary and/or permanent injunctions in order to prevent or restrain any such breach by Employee or by Employee’s partners, agents,\nrepresentatives, servants, employers and employees. Said remedies shall be in addition to, and not in limitation of, any other rights or remedies to\nwhich the Company is or may be entitled at law, in equity, or under this Agreement.\n11. Assignment\n11.1 Employee acknowledges that the services to be rendered by him/her are unique and personal. Accordingly, Employee may not assign any\nof his/her rights or delegate any of his/her duties or\nobligations under this Agreement. In the event that the Company shall be merged with, or consolidated into, any other corporation or entity, or in the\nevent that the Company shall sell or transfer substantially all of its assets to another corporation or entity, the terms of this Agreement shall inure to\nthe benefit of, and be assumed by, such corporation or entity.\n12. Notices\n12.1 Any notice required or desired to be given under this Agreement shall be deemed given if in writing sent by certified mail, to his/her\nresidence in the case of Employee, or to its principal office in the case of the Company.\n13. Applicable Law\n13.1 This Agreement has been made in and shall be governed by the laws of the Commonwealth of Massachusetts.\n14. Massachusetts Courts\n14.1 Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement may be brought and prosecuted in\nsuch court or courts located in the Commonwealth of Massachusetts as is provided by law; and the parties consent to the jurisdiction of said court or\ncourts located in the Commonwealth of Massachusetts and to service of process by registered mail, return receipt requested, or by any other manner\nprovided by law.\n15. Severability\n15.1 If any provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in\nfull force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full\nforce and effect in all other circumstances.\n16. Waiver\n16.1 No waiver by either party of any breach or violation of any provision of this Agreement shall operate or be construed as a waiver of any\nsubsequent breach or violation hereof.\n17. Headings\n17.1 The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of\nthis Agreement.\n18. Survival\n18.1 The provisions of Sections 4., 6., 7., 9., 10., 11, 12., 13, 14., 15., 16., and 19., herein shall survive the termination of this Agreement.\n6\n19. Amendments\n19.1 This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge hereof be affected except by an\ninstrument in writing executed by or on behalf of the party against whom enforcement of any such amendment, waiver, change, modification,\nconsent or discharge is sought.\nThe parties have signed this Agreement the day and year first above written.\nEmployee: Danna Rabin Comverse, Inc.\n/s/ Danna Rabin By:  /s/Rebecca L. Smith\nEmployee Signature\nEmployee Print: Danna Rabin Rebecca L. Smith\n10/26/2009 10/27/2009\nDate Date	EX-10.127 4 dex x10127.htm EMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nExhibit 10.127\nEMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nAGREEMENT entered into this 11 day of September 2009 (start date) by and between Comverse, Inc., a Delaware Corporation, on\nbehalf of itself and its subsidiaries (the "Company") and Danna Rabin "Employee".\nWHEREAS, the Employee has agreed to be employed by the Company, and\nWHEREAS, the parties desire to provide for the terms of Employee's services to the Company,\nNOW, THEREFORE, in consideration of Employee's employment by the Company, the compensation received by Employee from time\nto time hereunder, and the mutual covenants contained herein, the parties agree as follows:\n1. Duties\n1.1 The Company hereby hires Danna Rabin as an at-will employee for the position of Vice President of Professional Services Sales for a\nperiod\ncommencing on the date of this Agreement and terminating in accordance with the provisions of Section 3 of this Agreement. Employee\nshall\ndevote essentially his/her full time and best efforts to the advancement of the interests of the Company, and shall perform such duties as may be\nprescribed from time to time by an Officer of the Company. For the purposes of this Section, "full time" shall be defined as at least forty (40) hours\nper week.\n2. Compensation\n2.1 In consideration of the services to be performed under this Agreement Employee shall receive as gross compensation the sum of $6,923.07\n(bi-weekly) subject to withholding and other applicable taxes. At least once during each year of employment, an Officer of the Company shall\nreview\nthe\nperformance\nof\nEmployee\nand\nshall\nmake\nsuch\nadjustments\nto\nhis/her\ngross\ncompensation\nas\ndeemed\nappropriate\nby\nthe\nCompany.\nThe\nEmployee shall also be entitled to participate in benefit programs the Company establishes and makes generally available to all employees of the\nCompany, to the extent the employee is eligible to participate based on tenure, age, pay, health and other eligibility requirements.\n3. Termination\n3.1 Employment under this Agreement may be terminated immediately by the Company at any time for cause. "Cause" shall, for the purpose\nof this Section, be defined as a good faith finding by the Company of a material violation of any of the provisions of this Agreement or some other\nmaterial breach of duty owed by Employee to the Company, violation of a Company policy or procedure, fraud or dishonesty, theft of Company\nassets, gross negligence or misconduct, or the conviction or plea of nolo contendere to a felony or crime of moral turpitude2. Employee may also be\nterminated without cause as follows: (1) if Employee is on international assignment and is terminated with an effective termination date prior to the\nend date of the international assignment period, Employee is entitled to three months' advance notice of termination or, at the Company's election,\npayment in lieu of notice of Employee's then current gross compensation (plus accrued bonus and commission if applicable) for a three month\nperiod;\nor (2) if Employee is terminated with an effective termination date after the end date of the international assignment period, Employee is entitled to\ntwo weeks' advance notice of termination or, at the Company's election, payment in lieu of notice of Employee's then current gross compensation\n(plus accrued bonus and commission if applicable) for a two week period.\n1 Nolo Contendere is a plea entered by a defendant in a criminal case where a defendant neither admits nor denies guilt, but the criminal court\ncan impose a fine or a prison sentence. The main difference between a plea of nolo contendere and a guilty plea is that a nolo contendere\nplea\ncan not be used against a defendant in a civil action for the same acts, where as a guilty plea can be so used.\n2 Crimes of moral turpitude are crimes that are morally bad, contrary to what is accepted and customary in society.\n4.\nDisclosure and Surrender of Confidential Information\n4.1 Employee expressly acknowledges that he/she has received and will continue to receive "Confidential Information" pertaining to the\nproducts, services, operations and/or business affairs of the Company. For the purposes of this Agreement, "Confidential Information" shall include,\nbut not be limited to, information concerning or related to the Company's financial matters, business methods and practices, the Company's\nproprietary\ncomputer software, firmware, hardware, documentation, scientific, technical, economic, or engineering information including patterns,\nplans, compilations, program devices, formulae, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether\ntangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically or photographically (including,\nwithout limiting the generality of the foregoing, any such items created, developed, produced or made known to Employee during the period of or\narising out of Employee's employment with the Company), the Company's suppliers, customers and potential customers, confidential information\ndisclosed to the Company by a third party, the Company's sales and marketing plans, and any other information not generally known to the public\nwhich, if misused or disclosed, could have a reasonable possibility of adversely affecting the Company's business or financial condition.\n4.2 In recognition of the fact that such Confidential Information contains valuable trade secrets of the Company, Employee agrees that he/she\nshall not, during the term of this Agreement and thereafter, use or disclose to any third party any such Confidential Information for any reason or\npurpose whatsoever without the express written consent of the Company. Employee understands that, pursuant to the Economic Espionage Act,\nviolation of this Section 4.2 could result in a fine, imprisonment or both.\n4.3 Employee hereby assigns to the Company any and all rights, title and interest that Employee now has in the Company's Confidential\nInformation and agrees to assign to the Company any and all rights, title and interest that Employee may hereafter acquire in the Company's\nConfidential Information.\n4.4 Upon termination of his/her employment with the Company, for whatever reason, Employee will promptly surrender to the Company all\ncopies, in whatever form, of the Company's Confidential Information in Employee's possession or control, and Employee will not remove or\ntransmit by any means from the Company or take with him/her any of the Company's Confidential Information that is embodied in any tangible\nmedium of expression.\n2\n5.\nConfidentiality of Previous Employers/Clients\n5.1 Employee represents that his/her performance hereunder does not and will not breach any agreement to keep in confidence any proprietary\ninformation acquired by Employee in confidence or in trust of a present or former employer or client. Employee also understands that at no time\nduring his/her employment with the Company is Employee to breach any obligation of confidentiality that Employee has to present or former\nemployers or clients, and Employee agrees to fulfill all such obligations during his/her employment with the Company. Employee agrees that he/she\nshall not disclose to the Company any proprietary information of a third party without written permission from the third party. Employee understands\nthat, pursuant to the Economic Espionage Act, violation of this Section could result in a fine, imprisonment or both.\n6.\nDisclosure of Inventions\n6.1 For the purposes of this Agreement, "Inventions" shall have the same meaning as set forth in 35 U.S.C. 88 100 and 101, and may include\nwithout limitation, any of the following as applicable: all discoveries, developments, designs, improvements, inventions, formulae, processes,\ntechniques, computer programs, strategies, specific computer-related or telecommunications-related know-how and data.\n6.2 During Employee's employment by the Company and for a period of six (6) months thereafter, Employee will promptly and fully disclose\nto the Company (and to any persons designated by it) any and all Inventions generated or conceived or reduced to practice or learned by Employee,\neither alone or jointly with others, which result from or relate to tasks assigned by the Company to Employee, or which result from or relate to tasks,\nprojects or products being conducted or made within the Company about which Employee has obtained substantial knowledge during his/her\nemployment with the Company.\n7.\nOwnership Rights and Assignment of Inventions\n7.1 Employee and the Company hereby agree that, to the extent the United States copyright laws or the laws of any jurisdiction bound to\nrecognize rights of copyright, author's rights or any similar other rights so permit, all services rendered by Employee hereunder, and the work\nproduct resulting from same, are and shall be deemed to be performed by Employee as work for hire or works made for hire for the Company, and\nare and shall be the sole and exclusive property of the Company. To the extent such laws or any rule of law does not SO permit, then Employee\nexpressly agrees to assign to the Company any and all rights, title and interest which Employee has or hereafter acquires in such services and work\nproduct, including without limitation, any and all rights to copyrights, trademarks and trade secrets thereto.\n7.2 Employee agrees that all Inventions generated or conceived or reduced to practice or learned by Employee, either alone or jointly with\nothers, during the following time periods: (a) during Employee's employment by the Company and (b) for a period of six (6) months thereafter, shall\nbe the sole property of the Company and its assigns, and the Company and its assigns shall be the sole owner of all patent applications and all patents\nissued in connection therewith, provided however, that such Inventions in any way result from or relate to tasks assigned to the Employee during\nhis/her employment at the Company, or which result from or relate to tasks, projects or products being conducted or made within the Company about\nwhich Employee obtained substantial knowledge during his/her employment\n3\nat the Company. Employee hereby assigns to the Company any and all rights, title and interest which Employee has in such Inventions, and agrees to\nassign to the Company any and all rights, title and interest which Employee may hereafter acquire in such Inventions.\n7.3 With respect to all such Inventions described in Section 6.2 and Section 7.2 above, Employee further agrees to assist the Company in every\nproper way (but at the Company's expense) to apply for, prosecute, obtain, defend and enforce patents, and other proprietary rights and protections\nrelating\nto\nsaid\nInventions\nin\nany\nand\nall\ncountries,\nincluding\nbut\nnot\nlimited\nto,\nas\nthe\nCompany\nmay\nelect:\n(a)\ntaking\nall\nlawful\noaths\nand\ndoing\nall\nlawful acts, including giving testimony, and (b) executing all documents, including, but not limited to, all applications, powers, assignments and\nother papers deemed by the Company or persons designated by it to be necessary or advisable.\n7.4 Employee's obligations as set forth in Section 6.2 and Section 7.3 above shall continue beyond the termination of his/her employment by\nthe Company, but the Company shall compensate Employee at a reasonable rate after Employee's termination for time actually spent by Employee\non\nsuch assistance. In the event the Company is unable, after reasonable effort, to secure Employee's signature on any document or documents\nneeded to apply for, prosecute, obtain, defend or enforce any patent, copyright, trademark, trade secret, or other proprietary right or protection\nrelating to an Invention described in Sections 6 and 7 above, whether because of Employee's physical or mental incapacity or for any other reason\nwhatsoever, Employee hereby irrevocably designates and appoints the Company and its duly authorized Officers and agents as Employee's agent\ncoupled with an interest and attorney-in-fact, to act for and in Employee's behalf and stead to execute and file any such documents and to do all\nother lawfully permitted acts to further the Company's rights hereunder with the same legal force and effect as if executed by Employee.\n8.\nPrevious Inventions\n8.1 As a matter of record Employee has identified below and in an attachment hereto (as required), all Inventions generated or conceived or\nreduced to practice or learned by Employee, either alone or jointly with others, prior to his/her employment by the Company, which Employee\ndesires to remove from the operation of this Agreement. Employee represents and warrants that such list is complete. If there is no such information\nlisted, Employee represents that he/she made no such Inventions at the time of signing this Agreement.\nThe following is a complete list of all Inventions relative to the subject matter of my service as an employee of the Company that have\nbeen generated or conceived or first reduced to practice or learned by me, alone or jointly with others, prior to my employment by the Company:\n[X]\nNo Inventions\n[\n]\nSee Below:\n[\n1\nAdditional sheets attached\n4\n9.\nRestrictive Covenant\n9.1 For and in consideration of the compensation to be paid by the Company pursuant to the terms hereof, and in recognition of the fact that\nEmployee will have access to Confidential Information and other valuable rights of the Company, Employee covenants and agrees that he/she will\nnot, at any time during his/her employment with the Company, and for a period of six (6) months thereafter, directly or indirectly, engage in any\nbusiness\nor\nin\nany activity related to the development, sale, production, manufacturing, marketing or distribution of products or services which are\nin\ncompetition with products or services which the Company or any of its subsidiaries produces, sells, manufactures, markets, distributes or has interest\nin, in any state or foreign country in which the Company or any of its subsidiaries then conducts business or reasonably has plans to conduct\nbusiness.\nIt\nis not the intent of this covenant to bar Employee from employment in any company whose general business is the manufacture\nof\ncommunications equipment or delivery of communications services, only to limit specific and direct competition with the Company. Employee\nfurther agrees that during his/her employment by the Company and for a period of (12) months thereafter, Employee shall not, directly or indirectly,\ninduce, attempt to induce, or aid others in inducing, a salaried employee of the Company to accept employment or affiliation with another firm or\ncorporation engaging in such business or activity of which Employee is an employee, owner, partner or consultant.\n9.2 The Company and Employee agree that the duration and geographic scope of this Restrictive Covenant provision, set forth in this\nSection 9., are reasonable. In the event that any court of competent jurisdiction determines that the duration or the geographic scope, or both, are\nunreasonable and that such provision is to that extent unenforceable, the Company and Employee hereto agree that the provision shall remain in full\nforce and effect for the greatest time period and in the greatest area that would not render it unenforceable. The Company and Employee intend that\nthis provision shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States\nof\nAmerica and each and every political subdivision of each and every country outside the United States of America where this provision is intended to\nbe effective.\n9.3 Notwithstanding the foregoing, nothing contained in this Agreement shall prevent Employee from being an investor in securities of a\ncompetitor listed on a national securities exchange or actively traded over-the-counter so long as such investments are in amounts not significant as\ncompared to his/her total investments or to the aggregate of the outstanding securities of the issuer of the same class or issue of the specific securities\ninvolved.\n10. Damages Injunctive Relief\n10.1 In the event of a breach or threatened breach by Employee of any of the provisions of this Agreement, the Company shall be entitled to\ntemporary and/or permanent injunctions in order to prevent or restrain any such breach by Employee or by Employee's partners, agents,\nrepresentatives, servants, employers and employees. Said remedies shall be in addition to, and not in limitation of, any other rights or remedies\nto\nwhich the Company is or may be entitled at law, in equity, or under this Agreement.\n11. Assignment\n11.1 Employee acknowledges that the services to be rendered by him/her are unique and personal. Accordingly, Employee may not assign any\nof his/her rights or delegate any of his/her duties or\n5\nobligations under this Agreement. In the event that the Company shall be merged with, or consolidated into, any other corporation or entity, or in the\nevent that the Company shall sell or transfer substantially all of its assets to another corporation or entity, the terms of this Agreement shall inure\nto\nthe benefit of, and be assumed by, such corporation or entity.\n12. Notices\n12.1 Any notice required or desired to be given under this Agreement shall be deemed given if in writing sent by certified mail, to his/her\nresidence in the case of Employee, or to its principal office in the case of the Company.\n13. Applicable Law\n13.1 This Agreement has been made in and shall be governed by the laws of the Commonwealth of Massachusetts.\n14. Massachusetts Courts\n14.1 Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement may be brought and prosecuted in\nsuch court or courts located in the Commonwealth of Massachusetts as is provided by law; and the parties consent to the jurisdiction of said court or\ncourts located in the Commonwealth of Massachusetts and to service of process by registered mail, return receipt requested, or by any other manner\nprovided by law.\n15. Severability.\n15.1 If any provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in\nfull force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full\nforce and effect in all other circumstances.\n16. Waiver\n16.1 No waiver by either party of any breach or violation of any provision of this Agreement shall operate or be construed as a waiver of any\nsubsequent breach or violation hereof.\n17. Headings\n17.1 The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of\nthis Agreement.\n18. Survival\n18.1 The provisions of Sections 4., 6., 7., 9., 10., 11., 12., 13., 14., 15., 16., and 19., herein shall survive the termination of this Agreement.\n6\n19. Amendments\n19.1 This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge hereof be affected except by an\ninstrument in writing executed by or on behalf of the party against whom enforcement of any such amendment, waiver, change, modification,\nconsent or discharge is sought.\nThe parties have signed this Agreement the day and year first above written.\nEmployee: Danna Rabin\nComverse, Inc.\n/s/ Danna Rabin\nBy:\n/s/ Rebecca L. Smith\nEmployee Signature\nEmployee Print: Danna Rabin\nRebecca L. Smith\n10/26/2009\n10/27/2009\nDate\nDate\n7	EX-10.127 4 dex10127.htm EMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nExhibit 10.127\nEMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nAGREEMENT entered into this 11 day of September 2009 (start date) by and between Comverse, Inc., a Delaware Corporation, on\nbehalf of itself and its subsidiaries (the “Company”) and Danna Rabin “Employee”.\nWHEREAS, the Employee has agreed to be employed by the Company, and\nWHEREAS, the parties desire to provide for the terms of Employee’s services to the Company,\nNOW, THEREFORE, in consideration of Employee’s employment by the Company, the compensation received by Employee from time\nto time hereunder, and the mutual covenants contained herein, the parties agree as follows:\n1. Duties\n1.1 The Company hereby hires Danna Rabin as an at-will employee for the position of Vice President of Professional Services Sales for a\nperiod commencing on the date of this Agreement and terminating in accordance with the provisions of Section 3 of this Agreement. Employee shall\ndevote essentially his/her full time and best efforts to the advancement of the interests of the Company, and shall perform such duties as may be\nprescribed from time to time by an Officer of the Company. For the purposes of this Section, “full time” shall be defined as at least forty (40) hours\nper week.\n2. Compensation\n2.1 In consideration of the services to be performed under this Agreement, Employee shall receive as gross compensation the sum of $6,923.07\n(bi-weekly) subject to withholding and other applicable taxes. At least once during each year of employment, an Officer of the Company shall\nreview the performance of Employee and shall make such adjustments to his/her gross compensation as deemed appropriate by the Company. The\nEmployee shall also be entitled to participate in benefit programs the Company establishes and makes generally available to all employees of the\nCompany, to the extent the employee is eligible to participate based on tenure, age, pay, health and other eligibility requirements.\n3. Termination\n3.1 Employment under this Agreement may be terminated immediately by the Company at any time for cause. “Cause” shall, for the purpose\nof this Section, be defined as a good faith finding by the Company of a material violation of any of the provisions of this Agreement or some other\nmaterial breach of duty owed by Employee to the Company, violation of a Company policy or procedure, fraud or dishonesty, theft of Company\nassets, gross negligence or misconduct, or the conviction or plea of nolo contendere to a felony or crime of moral turpitude . Employee may also be\nterminated without cause as follows: (1) if Employee is on international assignment and is terminated with an effective termination date prior to the\nend date of the international assignment period, Employee is entitled to three months’ advance notice of termination or, at the Company’s election,\npayment in lieu of notice of Employee’s then current gross compensation (plus accrued bonus and commission if applicable) for a three month\nperiod;\n1\n2\nor (2) if Employee is terminated with an effective termination date after the end date of the international assignment period, Employee is entitled to\ntwo weeks’ advance notice of termination or, at the Company’s election, payment in lieu of notice of Employee’s then current gross compensation\n(plus accrued bonus and commission if applicable) for a two week period.\nNolo Contendere is a plea entered by a defendant in a criminal case where a defendant neither admits nor denies guilt, but the criminal court\ncan impose a fine or a prison sentence. The main difference between a plea of nolo contendere and a guilty plea is that a nolo contendere plea\ncan not be used against a defendant in a civil action for the same acts, where as a guilty plea can be so used.\nCrimes of moral turpitude are crimes that are morally bad, contrary to what is accepted and customary in society.\n4. Disclosure and Surrender of Confidential Information\n4.1 Employee expressly acknowledges that he/she has received and will continue to receive “Confidential Information” pertaining to the\nproducts, services, operations and/or business affairs of the Company. For the purposes of this Agreement, “Confidential Information” shall include,\nbut not be limited to, information concerning or related to the Company’s financial matters, business methods and practices, the Company’s\nproprietary computer software, firmware, hardware, documentation, scientific, technical, economic, or engineering information including patterns,\nplans, compilations, program devices, formulae, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether\ntangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically or photographically (including,\nwithout limiting the generality of the foregoing, any such items created, developed, produced or made known to Employee during the period of or\narising out of Employee’s employment with the Company), the Company’s suppliers, customers and potential customers, confidential information\ndisclosed to the Company by a third party, the Company’s sales and marketing plans, and any other information not generally known to the public\nwhich, if misused or disclosed, could have a reasonable possibility of adversely affecting the Company’s business or financial condition.\n4.2 In recognition of the fact that such Confidential Information contains valuable trade secrets of the Company, Employee agrees that he/she\nshall not, during the term of this Agreement and thereafter, use or disclose to any third party any such Confidential Information for any reason or\npurpose whatsoever without the express written consent of the Company. Employee understands that, pursuant to the Economic Espionage Act,\nviolation of this Section 4.2 could result in a fine, imprisonment or both.\n4.3 Employee hereby assigns to the Company any and all rights, title and interest that Employee now has in the Company’s Confidential\nInformation and agrees to assign to the Company any and all rights, title and interest that Employee may hereafter acquire in the Company’s\nConfidential Information.\n4.4 Upon termination of his/her employment with the Company, for whatever reason, Employee will promptly surrender to the Company all\ncopies, in whatever form, of the Company’s Confidential Information in Employee’s possession or control, and Employee will not remove or\ntransmit by any means from the Company or take with him/her any of the Company’s Confidential Information that is embodied in any tangible\nmedium of expression.\n2\n1\n2\n5. Confidentiality of Previous Employers/Clients\n5.1 Employee represents that his/her performance hereunder does not and will not breach any agreement to keep in confidence any proprietary\ninformation acquired by Employee in confidence or in trust of a present or former employer or client. Employee also understands that at no time\nduring his/her employment with the Company is Employee to breach any obligation of confidentiality that Employee has to present or former\nemployers or clients, and Employee agrees to fulfill all such obligations during his/her employment with the Company. Employee agrees that he/she\nshall not disclose to the Company any proprietary information of a third party without written permission from the third party. Employee understands\nthat, pursuant to the Economic Espionage Act, violation of this Section could result in a fine, imprisonment or both.\n6. Disclosure of Inventions\n6.1 For the purposes of this Agreement, “Inventions” shall have the same meaning as set forth in 35 U.S .C. §§ 100 and 101, and may include\nwithout limitation, any of the following as applicable: all discoveries, developments, designs, improvements, inventions, formulae, processes,\ntechniques, computer programs, strategies, specific computer-related or telecommunications-related know-how and data.\n6.2 During Employee’s employment by the Company and for a period of six (6) months thereafter, Employee will promptly and fully disclose\nto the Company (and to any persons designated by it) any and all Inventions generated or conceived or reduced to practice or learned by Employee,\neither alone or jointly with others, which result from or relate to tasks assigned by the Company to Employee, or which result from or relate to tasks,\nprojects or products being conducted or made within the Company about which Employee has obtained substantial knowledge during his/her\nemployment with the Company.\n7. Ownership Rights and Assignment of Inventions\n7.1 Employee and the Company hereby agree that, to the extent the United States copyright laws or the laws of any jurisdiction bound to\nrecognize rights of copyright, author’s rights or any similar other rights so permit, all services rendered by Employee hereunder, and the work\nproduct resulting from same, are and shall be deemed to be performed by Employee as work for hire or works made for hire for the Company, and\nare and shall be the sole and exclusive property of the Company. To the extent such laws or any rule of law does not so permit, then Employee\nexpressly agrees to assign to the Company any and all rights, title and interest which Employee has or hereafter acquires in such services and work\nproduct, including without limitation, any and all rights to copyrights, trademarks and trade secrets thereto.\n7.2 Employee agrees that all Inventions generated or conceived or reduced to practice or learned by Employee, either alone or jointly with\nothers, during the following time periods: (a) during Employee’s employment by the Company and (b) for a period of six (6) months thereafter, shall\nbe the sole property of the Company and its assigns, and the Company and its assigns shall be the sole owner of all patent applications and all patents\nissued in connection therewith, provided however, that such Inventions in any way result from or relate to tasks assigned to the Employee during\nhis/her employment at the Company, or which result from or relate to tasks, projects or products being conducted or made within the Company about\nwhich Employee obtained substantial knowledge during his/her employment\n3\nat the Company. Employee hereby assigns to the Company any and all rights, title and interest which Employee has in such Inventions, and agrees to\nassign to the Company any and all rights, title and interest which Employee may hereafter acquire in such Inventions.\n7.3 With respect to all such Inventions described in Section 6.2 and Section 7.2 above, Employee further agrees to assist the Company in every\nproper way (but at the Company’s expense) to apply for, prosecute, obtain, defend and enforce patents, and other proprietary rights and protections\nrelating to said Inventions in any and all countries, including but not limited to, as the Company may elect: (a) taking all lawful oaths and doing all\nlawful acts, including giving testimony, and (b) executing all documents, including, but not limited to, all applications, powers, assignments and\nother papers deemed by the Company or persons designated by it to be necessary or advisable.\n7.4 Employee’s obligations as set forth in Section 6.2 and Section 7.3 above shall continue beyond the termination of his/her employment by\nthe Company, but the Company shall compensate Employee at a reasonable rate after Employee’s termination for time actually spent by Employee\non such assistance. In the event the Company is unable, after reasonable effort, to secure Employee’s signature on any document or documents\nneeded to apply for, prosecute, obtain, defend or enforce any patent, copyright, trademark, trade secret, or other proprietary right or protection\nrelating to an Invention described in Sections 6 and 7 above, whether because of Employee’s physical or mental incapacity or for any other reason\nwhatsoever, Employee hereby irrevocably designates and appoints the Company and its duly authorized Officers and agents as Employee’s agent\ncoupled with an interest and attorney-in-fact, to act for and in Employee’s behalf and stead to execute and file any such documents and to do all\nother lawfully permitted acts to further the Company’s rights hereunder with the same legal force and effect as if executed by Employee.\n8. Previous Inventions\n8.1 As a matter of record Employee has identified below and in an attachment hereto (as required), all Inventions generated or conceived or\nreduced to practice or learned by Employee, either alone or jointly with others, prior to his/her employment by the Company, which Employee\ndesires to remove from the operation of this Agreement. Employee represents and warrants that such list is complete. If there is no such information\nlisted, Employee represents that he/she made no such Inventions at the time of signing this Agreement.\nThe following is a complete list of all Inventions relative to the subject matter of my service as an employee of the Company that have\nbeen generated or conceived or first reduced to practice or learned by me, alone or jointly with others, prior to my employment by the Company:\n[X]\nNo Inventions\n[]\nSee Below:\n[]\nAdditional sheets attached\n4\n9. Restrictive Covenant\n9.1 For and in consideration of the compensation to be paid by the Company pursuant to the terms hereof, and in recognition of the fact that\nEmployee will have access to Confidential Information and other valuable rights of the Company, Employee covenants and agrees that he/she will\nnot, at any time during his/her employment with the Company, and for a period of six (6) months thereafter, directly or indirectly, engage in any\nbusiness or in any activity related to the development, sale, production, manufacturing, marketing or distribution of products or services which are in\ncompetition with products or services which the Company or any of its subsidiaries produces, sells, manufactures, markets, distributes or has interest\nin, in any state or foreign country in which the Company or any of its subsidiaries then conducts business or reasonably has plans to conduct\nbusiness. It is not the intent of this covenant to bar Employee from employment in any company whose general business is the manufacture of\ncommunications equipment or delivery of communications services, only to limit specific and direct competition with the Company. Employee\nfurther agrees that during his/her employment by the Company and for a period of (12) months thereafter, Employee shall not, directly or indirectly,\ninduce, attempt to induce, or aid others in inducing, a salaried employee of the Company to accept employment or affiliation with another firm or\ncorporation engaging in such business or activity of which Employee is an employee, owner, partner or consultant.\n9.2 The Company and Employee agree that the duration and geographic scope of this Restrictive Covenant provision, set forth in this\nSection 9., are reasonable. In the event that any court of competent jurisdiction determines that the duration or the geographic scope, or both, are\nunreasonable and that such provision is to that extent unenforceable, the Company and Employee hereto agree that the provision shall remain in full\nforce and effect for the greatest time period and in the greatest area that would not render it unenforceable. The Company and Employee intend that\nthis provision shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States of\nAmerica and each and every political subdivision of each and every country outside the United States of America where this provision is intended to\nbe effective.\n9.3 Notwithstanding the foregoing, nothing contained in this Agreement shall prevent Employee from being an investor in securities of a\ncompetitor listed on a national securities exchange or actively traded over-the-counter so long as such investments are in amounts not significant as\ncompared to his/her total investments or to the aggregate of the outstanding securities of the issuer of the same class or issue of the specific securities\ninvolved.\n10. Damages - Injunctive Relief\n10.1 In the event of a breach or threatened breach by Employee of any of the provisions of this Agreement, the Company shall be entitled to\ntemporary and/or permanent injunctions in order to prevent or restrain any such breach by Employee or by Employee’s partners, agents,\nrepresentatives, servants, employers and employees. Said remedies shall be in addition to, and not in limitation of, any other rights or remedies to\nwhich the Company is or may be entitled at law, in equity, or under this Agreement.\n11. Assignment\n11.1 Employee acknowledges that the services to be rendered by him/her are unique and personal. Accordingly, Employee may not assign any\nof his/her rights or delegate any of his/her duties or\n5\nobligations under this Agreement. In the event that the Company shall be merged with, or consolidated into, any other corporation or entity, or in the\nevent that the Company shall sell or transfer substantially all of its assets to another corporation or entity, the terms of this Agreement shall inure to\nthe benefit of, and be assumed by, such corporation or entity.\n12. Notices\n12.1 Any notice required or desired to be given under this Agreement shall be deemed given if in writing sent by certified mail, to his/her\nresidence in the case of Employee, or to its principal office in the case of the Company.\n13. Applicable Law\n13.1 This Agreement has been made in and shall be governed by the laws of the Commonwealth of Massachusetts.\n14. Massachusetts Courts\n14.1 Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement may be brought and prosecuted in\nsuch court or courts located in the Commonwealth of Massachusetts as is provided by law; and the parties consent to the jurisdiction of said court or\ncourts located in the Commonwealth of Massachusetts and to service of process by registered mail, return receipt requested, or by any other manner\nprovided by law.\n15. Severability\n15.1 If any provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in\nfull force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full\nforce and effect in all other circumstances.\n16. Waiver\n16.1 No waiver by either party of any breach or violation of any provision of this Agreement shall operate or be construed as a waiver of any\nsubsequent breach or violation hereof.\n17. Headings\n17.1 The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of\nthis Agreement.\n18. Survival\n18.1 The provisions of Sections 4., 6., 7., 9., 10., 11., 12., 13., 14., 15., 16., and 19., herein shall survive the termination of this Agreement.\n6\n19. Amendments\n19.1 This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge hereof be affected except by an\ninstrument in writing executed by or on behalf of the party against whom enforcement of any such amendment, waiver, change, modification,\nconsent or discharge is sought.\nThe parties have signed this Agreement the day and year first above written.\nEmployee: Danna Rabin\nComverse, Inc.\n/s/ Danna Rabin\nBy: /s/ Rebecca L. Smith\nEmployee Signature\nEmployee Print: Danna Rabin\nRebecca L. Smith\n10/26/2009\n10/27/2009\nDate\nDate\n7
de4cd3cc43680829e1bd7028781612af.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm FORM OF SENIOR VICE PRESIDENT CONFIDENTIALITY\nExhibit 10.1\nPAETEC COMMUNICATIONS, INC.\nSENIOR VICE PRESIDENT CONFIDENTIALITY, NON-SOLICITATION AND\nNON-COMPETITION AGREEMENT\nThis Senior Vice President Confidentiality, Non-Solicitation and Non-Competition Agreement (this “Agreement”) is entered into as of the date\nset forth on the signature page hereto between PAETEC Communications, Inc., a Delaware corporation, including any subsidiary, successor or\naffiliate of the Company with which I work (collectively, the “Company”), and\n(“I” or “me”)).\nWHEREAS, the Company now has and expects to develop confidential and proprietary materials and highly sensitive information of\nimmeasurable value, which I recognize must be carefully protected as set forth below for the Company to be successful;\nNOW, THEREFORE, to induce the Company to employ me and in consideration of my employment or continued employment by the\nCompany and other good and valuable consideration the sufficiency of which I expressly acknowledge, the Company and I hereby agree, intending\nto be legally bound, as follows:\n1. Company Confidential Materials and Information\nThe following materials and information, whether having existed, now existing, or to be developed or created during the term of my\nemployment by Company (herein referred to collectively as the “Company Confidential Information”) are covered by this Senior Vice President\nConfidentiality, Non-Solicitation and Non-Competition Agreement (“Agreement”):\n1.1. Products and Services. All information to which the Company gave me access, all information disclosed to me by the Company, and all\ninformation developed for the Company by me, alone or with others, that directly or indirectly relates to the business, products and/or services that\nthe Company engages in, plans to engage in or contemplates engaging in, including but not limited to research, development, manufacture, sale\nand/or licensing of products and services related to communications, integrated communications, long-distance services, Internet access,\neCommerce, hardware and software (whether owned or licensed by the Company), and data services, including but not limited to local, domestic,\nand international long-distance services, local exchange services, wholesale long-distance services, IP/ISP services, high-speed Internet access, DSL\nservices, eCommerce, web hosting, ASP services, data networking, systems integration services, and data communications services and other\nproprietary products or services, whether existing or in any stage of research and development (such as trade secrets, inventions, ideas, methods,\ntechnical and laboratory data, engineering data and information, engineering information related to the integration of communications devices and\nequipment, benchmark test results, processes, design specifications, algorithms, technical data, technical formulas, engineering data, processes,\nmanufacturing data, procedures, techniques, methodologies, information processing processes, and strategies).\n1.2. Business and Marketing Procedures and Customer Information. All information concerning or relating to the way Company conducts its\nbusiness, markets\nits products and services, and all information relating to any Company customers and sales agents or prospective customers and sales agents (such as\ninternal business procedures, business strategies, marketing plans and strategies, controls, plans, licensing techniques and practices, supplier,\nsubcontractor and prime contractor names and contracts and other vendor information, customer information and requirements, sales agent\ninformation, computer system passwords and other computer security controls, financial information, distributor information, information supplied\nby clients and customers of Company and employee data).\n1.3. Not Generally Known. Any information in addition to the foregoing which is not generally known to the public or within the industry or\ntrade areas in which Company competes, through no fault of mine, which gives the Company any advantage over its competitors.\n1.4. Third-Party Information. Any information that is confidential and proprietary to a third party that the Company has and in the future will\nreceive from such third party subject to the Company’s duty to maintain the confidentiality of such information and to use it for certain limited\npurposes.\n1.5. All Physical Embodiments of Products, Services, Business, Marketing, Customer and Other Information. All the physical embodiments of\nall of the information included in Sections 1.1, 1.2, 1.3 and 1.4 above, including but not limited to research programs, research data, testing data,\nsoftware, compositions, compounds, hardware, works of authorship, source code, other computer code, correspondence, check lists, samples, forms,\nledgers, financial data, financial statements, financial reports, forecasts and projections, discounts, margins, costs, credit terms, pricing practices,\npricing policies and procedures, goals and objectives, quoting practices, quoting procedures and policies, financial and operational analyses and\nstudies, management reports of every kind, databases, employment records pertaining to employees other than myself, customer data including\ncustomer lists, contracts, representatives, requirements and needs, specifications, data provided by or about prospective, existing or past customers\nand contract terms applicable to such customers, engineering notebooks, notes, drawings, work sheets, schematics, load modules, schematics,\nannotations, flow charts, logic diagrams, procedural diagrams, coding sheets, requirements, proposals, instructor manuals, course materials, video\ncassettes, transparencies, slides, presentations, proposals, printouts, studies, contracts, maintenance manuals, operational manuals, documentation,\nlicense agreements, marketing practices, marketing policies and procedures, marketing plans and strategies, marketing reports, strategic business\nplans, marketing analyses, seminar and class attendee rosters, trade show or exhibit attendee listings, listings of customer leads, and any other written\nor machine-readable expressions of such information as are fixed in any tangible media.\n1.6. Trade Secrets. I acknowledge and agree that the Company Confidential Information identified in paragraphs 1.1, 1.2, 1.3 and 1.5, above,\nconstitutes trade secrets of the Company.\n2\n2. General Knowledge\nThe general skills, knowledge and experience gained during my employment with Company, and information publicly available or generally\nknown within the industry or trade areas in which the Company competes, are not considered Company Confidential Information.\n3. Employee Obligations\nDuring my employment with Company, I acknowledge and agree that I will have access to and become acquainted with Company Confidential\nInformation and materials, including its trade secrets, and will occupy a position of trust and confidence with respect to Company’s affairs, business\nand customer goodwill, and Company Confidential Information. I acknowledge and agree that the interests afforded protection by this Agreement\nare Company’s legitimate business interests, deserving of protection. I further acknowledge that the Company would not have entered into or\ncontinued its employment relationship with me without my execution of and agreement to this Agreement. I agree to take the following steps to\npreserve the confidential and proprietary nature of Company Confidential Information and materials and to preserve the Company’s goodwill:\n3.1. Non-Disclosure. During and after my employment with Company, I will not misuse, misappropriate, disclose or transfer in writing, orally\nor by electronic means, any Company Confidential Information, directly or indirectly, to any other person, or use Company Confidential Information\nin any way, except as is required in the course of my employment with Company, nor will I accept any employment or other professional\nengagement that likely will result in the use or disclosure, even if inadvertent, of Company Confidential Information. I further agree that Company\nConfidential Information includes information or material received by Company from others, including its affiliates, and intended by the Company\nto be kept in confidence by its recipients. I understand that I am not allowed to sell, license or otherwise exploit any products (including hardware or\nsoftware in any form) which embody or otherwise exploit in whole or in part any Company Confidential Information or materials. I acknowledge\nand agree that the sale, misappropriation, or unauthorized use or disclosure in writing, orally or by electronic means, at any time of Company\nConfidential Information obtained by me during the course of my employment constitutes unfair competition. I agree and promise not to engage in\nany unfair competition with Company, either during my employment or at any other time thereafter. I further acknowledge and agree that the\nCompany’s products and services can be developed and marketed nationwide, and therefore, the protection afforded the Company must likewise be\nnationwide.\n3.2. Preservation, Removal and Return of Information. I agree to take all reasonable steps to preserve the confidential and proprietary nature of\nCompany Confidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. I acknowledge and\nagree that all Company Confidential Information, whether prepared by me or otherwise coming into my possession while I am employed by the\nCompany, shall remain the exclusive property of Company. I agree that during my employment with the Company and thereafter, I will not use,\ndisclose, transfer, or remove from the Company’s premises any Company\n3\nConfidential Information other than as authorized by the Company. I agree to return to the Company all Company Confidential Information and\ncopies thereof, in whatever form, at any time upon the request of the Company, and at the time of my termination of employment for any reason. I\nagree not to retain any copies of any Company Confidential Information and Company-owned materials after my termination of employment for any\nreason whatsoever. My obligations under this Section 3 shall continue after termination of my employment with the Company.\n3.3. Additional Covenants. I acknowledge the highly competitive nature of the industry in which the Company is involved, and I acknowledge\nthat: my services to the Company will be special and unique; my work for the Company will allow me access to the Company Confidential\nInformation, including trade secrets, and customers; the Company’s business is conducted throughout the United States and over the Internet and\nWorld Wide Web, enabling the Company and me to regularly provide services to customers nationwide; the Company would not have entered into\nthis Agreement but for the covenants and agreements contained in this Section 3; and the agreements and covenants contained in this Section 3 are\nreasonable and are necessary and essential to protect the business, trade secrets, Company Confidential Information, and goodwill of the Company. I\nfurther acknowledge that this Agreement does not restrict my ability to be gainfully employed, and I acknowledge that the geographic boundaries,\nscope of prohibited activities, and time duration of this subsection 3.3 are reasonable in nature and no broader than are necessary to protect the\nlegitimate business interests of the Company. I agree not to raise any objection to the reasonableness of this subsection 3.3 in any action or\nproceeding to enforce the terms of this Agreement. In order to induce the Company to enter into this Agreement, I covenant and agree that:\n(a) During my employment and for twelve (12) months following the termination of my employment with Company, whether voluntary\nor involuntary, without Company’s written express consent, I will not directly or indirectly solicit (other than on behalf of the Company) business or\ncontracts for any products or services of the type provided, developed or under development by the Company during my employment by the\nCompany, from or with (1) any person or entity which was a customer or sales agent of the Company for such products or services as of, or within\none year prior to the my date of termination with the Company, or (2) any prospective customer or sales agent which the Company was soliciting as\nof, or within one year prior to my termination. Additionally, during my employment and for twelve (12) months thereafter, I will not directly or\nindirectly contract with any such customer, prospective customer, sales agent or prospective sales agent for any product or service of the type\nprovided, developed or which was under development by the Company during my employment with the Company. I will not during my employment\nor for twelve (12) months thereafter knowingly interfere or attempt to interfere with any transaction, agreement or business relationship in which the\nCompany was involved or was contemplating during my employment with the Company, including but not limited to relationships with sales agents,\nindependent sales agents, customers, prospective customers, contractors, vendors, service providers, and suppliers.\n(b) During my employment and for 12 months after my employment with Company is terminated for any reason, I agree not to, directly\nor indirectly, solicit,\n4\nrecruit, or hire, or in any manner assist in the hiring, solicitation or recruitment of: (1) any of the Company’s employees, or any individuals who were\nemployed by the Company within twelve (12) months of my termination of employment; or (2) any of the Company’s sales agents or the\nindependent sales agents of any affiliate of the Company, or any person or entity which was a Company sales agent or independent sales agent of a\nCompany affiliate within twelve (12) months prior to the termination of my employment with the Company.\n(c) To prevent the misuse, misappropriation, or unauthorized disclosure of Company’s trade secrets, including Company Confidential\nInformation, and to protect the goodwill of Company, I will not, during my employment and for twelve (12) months after termination of my\nemployment, without Company’s express written consent, directly or indirectly, individually or as an officer, director, employee, shareholder (except\nif as a shareholder of less than 1% of a publicly traded company), consultant, contractor, partner, joint venturer, agent, equity owner, or in any\ncapacity whatsoever, engage in or promote any business or contemplated business that is competitive with the “Company’s Business.” “Company’s\nBusiness” is the research, development, manufacture, sale and/or licensing of products and services related to communications, integrated\ncommunications, long-distance services, Internet access, eCommerce, hardware and software (whether owned or licensed by the Company), and data\nservices, including but not limited to local, domestic, and international long-distance services, local exchange services, wholesale long-distance\nservices, IP/ISP services, high-speed Internet access, DSL services, eCommerce, web hosting, ASP services, data networking, systems integration\nservices, and data communications services, together with any other businesses that Company engages in, plans to engage in or contemplates\nengaging in from the date hereof to the date of termination of my employment.\n3.4. The parties agree that if a Court of competent jurisdiction finds that any term of this Section 3 is for any reason excessively broad in scope\nor duration, such term shall be construed in a manner to enable it to be enforced to the maximum extent possible. Further, the covenants in this\nSection shall be deemed to be a series of separate covenants and agreements, one for each and every region of each state and political division\nworldwide. If, in any judicial proceeding, a court of competent jurisdiction shall refuse to enforce any of the separate covenants deemed included\nherein, then at the option of the Company, wholly unenforceable covenants shall be deemed eliminated from the provision hereof for the purpose of\nsuch proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such proceeding. In addition, if a court or other\nenforcement body finds that any provision of this Agreement may not be enforced as written because of some public policy, I agree that such court\nor enforcement body shall modify and construe such provision to permit its enforcement to the maximum extent permitted by law.\n3.5. Compensation. The Company agrees that if my employment is terminated voluntarily by me, or by the Company without Cause, as\ndefined below for purposes of this Section only, the Company shall, during the one-year period during which the “Additional Covenants” stated in\nsubsections 3.3(a), 3.3(b) and 3.3(c) above are in effect, (i) pay me an amount equal to the annualized base salary paid to me immediately prior to\ntermination of my employment, (ii) pay me, if applicable, an amount equal to the total\n5\namount of all commissions paid to me during the twelve-month period immediately preceding the first day of the month of the date of termination of\nmy employment with the Company, (iii) pay me, if applicable, the amount I would have been eligible to receive under the Company’s bonus plan for\nthe calendar year of the year in which the termination of my employment occurred, as if I had been an employee of the Company during the entire\napplicable bonus year (i.e., the payment shall not be pro-rated in any manner and any requirements of the bonus plan that I be employed by the\nCompany during all of the calendar year covered by the bonus plan and/or be on the Company’s payroll as of the date the bonus payments are\nactually paid out are expressly waived for me in this circumstance), and (iv) count the one-year period during which the “Additional Covenants”\nstated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect as one year of service for purposes of calculating the vested portion of any\nCompany stock options that have been granted to me (collectively, the “Non-Competition Compensation”). Payment of my annualized base salary\nshall be made in accordance with the Company’s customary payroll practices, and the Company shall be entitled to make any withholdings from\nsuch payments required by law or otherwise authorized by me, except that the Company shall have no obligation to accommodate my request for\ndirect deposit or voluntary deductions for any purposes. Payment of my commission amount (as described above) shall be made in twelve\ninstallments and will be paid to me according to the Company’s normal commission payment cycle during the one-year period in which the\n“Additional Covenants” stated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect. Payment of my bonus amount (as described above) shall\nbe made in accordance with the Company’s established bonus payout practices for the applicable calendar year, and payment shall be made to me at\nthe same time and in the same manner as that calendar year bonus is paid out to the Company’s employees generally. Continued payment of my base\nsalary, payment of my commissions and/or bonus, and continued vesting of my stock options, all under this subparagraph, shall not occur if\ntermination of my employment is due to my death, disability, or termination for “Cause,” as defined below.\n(a) Enforcement. Should I violate any terms of this Agreement, the Company, in addition to any other remedies available under law, may\ndiscontinue any payments being made to me pursuant to this Agreement and may discontinue any continuing vesting of stock options occurring\npursuant to this Agreement.\n(b) Termination for “Cause.” Termination for “Cause” in this subsection 3.5 shall mean termination of my employment with the\nCompany due to: (i) failure or refusal to perform the duties assigned to me, including but not limited to failure to reach assigned goals, quotas and/or\nobjectives; (ii) my refusal to follow the reasonable directives of the Board of Directors or Chief Executive Officer of Company or other\ninsubordination; (iii) conviction or plea of guilty or nolo contendere of a felony, or of a misdemeanor involving dishonesty or violence;\n(iv) misappropriation of any funds or property of the Company; (v) violation of any Company policies; (vi) breach of this Agreement; or\n(vii) commission of any act which could materially injure the business or reputation of, or materially adversely affect the interests, of Company.\n(c) Redundancy. Notwithstanding the foregoing, the payment of all or any portion (as the case may be) of my Non-Competition\nCompensation pursuant to this\n6\nAgreement will cease if such payment would duplicate continued payments provided pursuant to any prior or subsequent agreement of any kind\nbetween me and the Company.\n3.6. E -Mail. I understand that the Company maintains an electronic mail system, Internet system and related facilities for the purpose of\nbusiness communications. I acknowledge that said systems and related facilities, as well as all electronic communications transmitted thereon, are\nCompany property, that I have no right to or expectation of privacy related to my use of such systems and facilities, and the Company retains the\nright to review any and all electronic mail communications, and my use of Internet and other electronic media, with or without notice, at any time.\n4. Prior Proprietary Information and Conflicting Obligations\nDuring my employment with Company, I agree that I will not knowingly improperly use or disclose any proprietary information or trade\nsecrets of any former employer or other person or entity intended by such person or entity not to be disclosed to Company. I further agree that I will\nnot bring onto Company’s premises any unpublished document or proprietary information belonging to any such former employer, person or entity\nunless consented to in writing by such employer, person or entity. I agree to inform the Company of any apparent conflicts between my work for\nCompany and any obligations I may have to preserve the confidentiality of another’s proprietary information or materials; otherwise, the Company\nmay conclude that no such conflict exists and I agree thereafter to make no such claim against Company. Company shall receive such disclosures in\nconfidence and consistent with the objectives of avoiding any conflict of obligations and rights or the appearance of any conflict of interest.\nInventions directly relating and applicable and useful to the Company’s business, if any, patented or unpatented, which I made prior to the\ncommencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, I have\nset forth on Exhibit 1 (Prior Inventions) attached hereto a complete list of all such Inventions that I have, alone or jointly with others, conceived,\ndeveloped or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with\nthe Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement\n(collectively referred to as “Prior Inventions”). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality\nagreement, I understand that I am not to list such Prior Inventions in Exhibit 1 but am only to disclose a cursory name for each such invention, a\nlisting of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit 1 for such purpose. If no such disclosure is attached, I represent that there are no such Prior Inventions. If, in the course of my\nemployment with the Company, I incorporate a Prior Invention into a Company product, test, service or process, the Company is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to\nmake, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be\nincorporated, Prior Inventions in any Company Inventions without the Company’s prior written consent.\n7\nI represent that, to the best of my knowledge, my performance of all of the terms of this Agreement and as an employee of the Company does\nnot and will not breach any agreement to keep in confidence proprietary information acquired by me prior to my employment by the Company.\nFurther, I represent that, to the best of my knowledge, the performance of my duties with the Company will not breach any contractual or other legal\nobligation I have to any third person.\n5. Ideas and Inventions\n5.1. I agree that any and all intellectual properties, including, but not limited to, all ideas, concepts, themes, inventions, designs, tests,\nprocedures, research methods, improvements, discoveries, developments, formulas, patterns, devices, processes, software programs, hardware\ninformation, engineering and other information related to the integration of hardware and software, software program codes, logic diagrams, flow\ncharts, decision charts, drawings, procedural diagrams, coding sheets, documentation manuals, technical data, client, customer and supplier lists, and\ncompilations of information, records, and specifications, and other matters constituting trade secrets or Company Confidential Information, that\nrelate in any way to the actual or prospective business of the Company or to any experimental or developmental work carried on by Company, and\nthat are conceived, developed or written by me, either individually or jointly in collaboration with others during my employment, and all designs,\nplans, reports, specifications, drawings, inventions, processes, test data and/or other information or items produced by me while performing my\nduties for the Company, shall belong to and be the sole and exclusive property of Company, are “works for hire”, and to the extent they are not\n“works for hire”, I hereby assign all of my rights, title and interest in such intellectual properties to the Company, including without limitation, all\npatent, copyright or trade secret rights therein.\n5.2. I further agree to assist Company in obtaining patents on all inventions, designs, improvements and discoveries that are patentable, or\ncopyright registrations on all works of authorship, and to execute all documents and do all things necessary to vest Company with full and exclusive\ntitle and protect against infringement by others. I agree to give the Company or its designees all assistance reasonably required to perfect such rights\nprovided that following termination of my employment, the Company shall reimburse me for my reasonable time and expense in assisting with such\nmatters. I further agree that if the Company is unable, after reasonable effort, to secure my signature on any such papers, any executive officer of the\nCompany shall be entitled to execute any such papers as my agent and attorney-in-fact, and I hereby irrevocably designate and appoint each\nexecutive officer of the Company as my agent and attorney-in-fact to execute any such papers on my behalf, and to take any and all actions as the\nCompany may deem necessary or desirable in order to protect its rights and interests in any work, under the conditions described in this sentence. I\npromise and agree that I will promptly and fully inform the Company of and disclose to Company all intellectual properties described in Section 5.1\nabove that I make during my employment with Company, whether individually or jointly in collaboration with others, that pertain or\n8\nrelate to the actual or potential business of Company or to any experimental or developmental work carried on by Company, whether or not\nconceived during regular working hours. I agree to make full disclosure to Company immediately after creating or making any of the intellectual\nproperties identified in Section 5.1, and shall thereafter keep Company fully informed at all times of all progress in connection therewith. I also\npromise and agree that I will promptly disclose to Company all patent applications filed by me or on my behalf within a year after termination of my\nemployment that relate to or concern actual or contemplated business of the Company.\n5.3. Moral Rights. I understand that the term “moral rights” means any rights of attribution or integrity, including any right to claim authorship\nof a copyrightable work, to object to a modification of such copyrightable work, and any similar right existing under the judicial or statutory law of\nany country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.” I\nforever hereby waive and agree never to assert any moral rights I may have in any copyrightable work that is assigned to Company as a result of this\nSection, even after any termination of my employment with Company.\n6. “At Will” Nature of Relationship\nNothing herein shall be construed as constituting an agreement, understanding or commitment of any kind that the Company shall continue to\nemploy me for any period of time. I hereby acknowledge and agree that my employment with the Company is and shall be “at will,” terminable by\nme or by the Company at any time with or without cause and with or without notice. Without limiting the generality of the foregoing, I acknowledge\nthat I will be subject to immediate dismissal for any breach of this Agreement.\n7. Enforcement\nI acknowledge and agree that the restrictions contained in this Agreement are reasonable and necessary to protect the business, trade secrets,\nConfidential Information, goodwill and other interests of the Company and that any violation of these restrictions would cause the Company\nsubstantial irreparable injury. Accordingly, I agree that a remedy at law for any breach of the covenants or other obligations in this Agreement would\nbe inadequate and that the Company, in addition to any other remedies available, shall be entitled to obtain preliminary and permanent injunctive\nrelief to secure specific performance of such covenants and to prevent a breach or threatened breach of this Agreement without the necessity of\nproving actual damage and without the necessity of posting bond or security, which I expressly waive. I will provide the Company a full accounting\nof all proceeds and profits received by me as a result of or in connection with a breach of this Agreement. Unless prohibited by law, the Company\nshall have the right to retain any amounts otherwise payable by the Company to me to satisfy any of my obligations as a result of any breach of this\nAgreement. I hereby agree to indemnify and hold harmless the Company from and against any damages incurred by the Company as assessed by a\ncourt of competent jurisdiction as a result of any breach of this Agreement by me. I agree that each of my obligations specified in this Agreement is a\nseparate and independent covenant that shall survive termination of my employment for any reason and that the unenforceability of any of them shall\nnot preclude the enforcement of any other covenants in this Agreement.\n9\n8. Notification of New Employer\nIn the event that I leave the employ of Company, voluntarily or involuntarily, I agree to inform any subsequent employer of my rights and\nobligations under this Agreement. I further hereby authorize Company to notify my new employer about my rights and obligations under this\nagreement. The foregoing consent is limited to the delivery by Company to my new employer a signed copy of this Agreement, and any written\nmodifications thereto, and not to any characterization thereof made by Company.\n9. Choice of Law\nThis Agreement and its terms will be construed, enforced and governed by the laws of the State of Delaware without regard to conflict or\nchoice of law rules or other principles that might otherwise refer construction or interpretation of this Agreement to the substantive law of a\njurisdiction other than Delaware.\n10. Forum Selection\nWith regard to any claims, complaints or proceedings brought related to my obligations under this Agreement, at all times each party hereto\n(a) irrevocably submits to the exclusive jurisdiction of any New York court or Federal court sitting in the State of New York in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and irrevocably agrees that all claims in respect of\nany such action or proceeding may be heard and determined in such New York or Federal court; (b) to the extent permitted by law irrevocably\nconsents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such party at the address\nspecified at the end of this Agreement; (c) to the extent permitted by law irrevocably confirms that service of process out of such courts in such\nmanner shall be deemed due service upon such party for the purposes of such action or proceeding; (d) to the extent permitted by law irrevocably\nwaives (i) any objection such party may have to the laying of venue of any such action or proceeding in any of such courts, or (ii) any claim that\nsuch party may have that any such action or proceeding has been brought in an inconvenient forum; and (e) to the extent permitted by law\nirrevocably agrees that a final nonappealable judgment in any such action or proceeding shall be conclusive and may be enforced in other\njurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Section 10 shall affect the right of any party hereto to\nserve legal process in any manner permitted by law.\n11. Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and permitted assigns, including\nany corporation or entity with which or into which the Company may be merged or which may succeed to its assets or business, provided, however,\nthat my obligations, as an employee, are personal and shall not be assigned by me.\n10\n12. General Terms\nThis is my entire agreement with Company with respect to its subject matter, superseding any prior oral or written, express or implied\nnegotiations and agreements. This Agreement may not be changed in any respect except by a written agreement signed by both myself and an officer\nof Company. If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability\nof the remaining provisions will not in any way be affected or impaired thereby. The delay or omission by the Company or me in exercising its/my\nrights under this Agreement, or the failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this\nAgreement by the other party, shall not be deemed a waiver of any terms, covenants or conditions of this Agreement, nor shall any waiver or\nrelinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all times or any other\ntime. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or\nsubstance of any section of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, and all of which together shall constitute one and the same instrument. It is the express intention and agreement of the parties hereto that all\ncovenants, agreements and statements made by any party in this Agreement shall survive the execution and delivery of this Agreement. In addition,\nthe covenants, agreements and statements made in this Agreement shall survive termination of my employment with the Company for any reason.\nBy my signature below, I acknowledge that I have reviewed this Agreement carefully and understand that the covenants and obligations it\ncontains are binding on me.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Senior Vice President Confidentiality, Non-Solicitation and\nNon-Competition Agreement as of the day of\n,20\n.\nEMPLOYEE\nSignature\nPrinted Name\nHome Address\nSocial Security #\nDivision/Company/Location\nExhibit 1 attached hereto:\nYes\nNo\nPAETEC COMMUNICATIONS, INC.\nBy:\nJolanda Chesonis\nVice President of Human Resources\n11\nEXHIBIT 1\nPRIOR INVENTIONS\nThis Exhibit 1 sets forth a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice\nor caused to be conceived, developed or reduced to practice prior to the commencement of my Employment with the Company, that I consider to be\nmy property or the property of third parties and that I wish to have excluded from the scope of the Senior Vice President Confidentiality, Non-\nSolicitation and Non-Competition Agreement (“Agreement”) (collectively referred to as “Prior Inventions”).\nI understand that if disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I am not to list such\nPrior Inventions in this Exhibit 1 but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and\nthe fact that full disclosure as to such inventions has not been made for that reason. A space is provided below for such purpose.\nIf no such disclosure is attached, I represent that there are no Prior Inventions.\nDescription of Prior Inventions And Related Documents (if applicable):\nTitle and Description\nof Invention And Related Document\nDate of\nInvention/ Document\nOwners of\nInvention/Document\nName of\nWitness(es) to\nInvention/ Document\nIf no information is listed herein, I hereby affirm that I do not have any such prior intellectual properties, inventions or other works to identify.\nSignature\nName\nDate	EX-10.1 2 dex101.htm FORM OF SENIOR VICE PRESIDENT CONFIDENTIALITY\nExhibit 10.1\nPAETEC COMMUNICATIONS, INC.\nSENIOR VICE PRESIDENT CONFIDENTIALITY, NON-SOLICITATION AND\nNON-COMPETITION AGREEMENT\nThis Senior Vice President Confidentiality, Non-Solicitation and Non-Competition Agreement (this “Agreement”) is entered into as of the date\nset forth on the signature page hereto between PAETEC Communications, Inc., a Delaware corporation, including any subsidiary, successor or\naffiliate of the Company with which I work (collectively, the “Company”), and (“I” or “me”)).\nWHEREAS, the Company now has and expects to develop confidential and proprietary materials and highly sensitive information of\nimmeasurable value, which I recognize must be carefully protected as set forth below for the Company to be successful;\nNOW, THEREFORE, to induce the Company to employ me and in consideration of my employment or continued employment by the\nCompany and other good and valuable consideration the sufficiency of which I expressly acknowledge, the Company and I hereby agree, intending\nto be legally bound, as follows:\n1. Company Confidential Materials and Information\nThe following materials and information, whether having existed, now existing, or to be developed or created during the term of my\nemployment by Company (herein referred to collectively as the “Company Confidential Information™) are covered by this Senior Vice President\nConfidentiality, Non-Solicitation and Non-Competition Agreement (“Agreement”):\n1.1. Products and Services. All information to which the Company gave me access, all information disclosed to me by the Company, and all\ninformation developed for the Company by me, alone or with others, that directly or indirectly relates to the business, products and/or services that\nthe Company engages in, plans to engage in or contemplates engaging in, including but not limited to research, development, manufacture, sale\nand/or licensing of products and services related to communications, integrated communications, long-distance services, Internet access,\neCommerce, hardware and software (whether owned or licensed by the Company), and data services, including but not limited to local, domestic,\nand international long-distance services, local exchange services, wholesale long-distance services, IP/ISP services, high-speed Internet access, DSL\nservices, eCommerce, web hosting, ASP services, data networking, systems integration services, and data communications services and other\nproprietary products or services, whether existing or in any stage of research and development (such as trade secrets, inventions, ideas, methods,\ntechnical and laboratory data, engineering data and information, engineering information related to the integration of communications devices and\nequipment, benchmark test results, processes, design specifications, algorithms, technical data, technical formulas, engineering data, processes,\nmanufacturing data, procedures, techniques, methodologies, information processing processes, and strategies).\n1.2. Business and Marketing Procedures and Customer Information. All information concerning or relating to the way Company conducts its\nbusiness, markets\nits products and services, and all information relating to any Company customers and sales agents or prospective customers and sales agents (such as\ninternal business procedures, business strategies, marketing plans and strategies, controls, plans, licensing techniques and practices, supplier,\nsubcontractor and prime contractor names and contracts and other vendor information, customer information and requirements, sales agent\ninformation, computer system passwords and other computer security controls, financial information, distributor information, information supplied\nby clients and customers of Company and employee data).\n1.3. Not Generally Known. Any information in addition to the foregoing which is not generally known to the public or within the industry or\ntrade areas in which Company competes, through no fault of mine, which gives the Company any advantage over its competitors.\n1.4. Third-Party Information. Any information that is confidential and proprietary to a third party that the Company has and in the future will\nreceive from such third party subject to the Company’s duty to maintain the confidentiality of such information and to use it for certain limited\npurposes.\nall of the information included in Sections 1.1, 1.2, 1.3 and 1.4 above, including but not limited to research programs, research data, testing data,\nsoftware, compositions, compounds, hardware, works of authorship, source code, other computer code, correspondence, check lists, samples, forms,\nledgers, financial data, financial statements, financial reports, forecasts and projections, discounts, margins, costs, credit terms, pricing practices,\npricing policies and procedures, goals and objectives, quoting practices, quoting procedures and policies, financial and operational analyses and\nstudies, management reports of every kind, databases, employment records pertaining to employees other than myself, customer data including\ncustomer lists, contracts, representatives, requirements and needs, specifications, data provided by or about prospective, existing or past customers\nand contract terms applicable to such customers, engineering notebooks, notes, drawings, work sheets, schematics, load modules, schematics,\nannotations, flow charts, logic diagrams, procedural diagrams, coding sheets, requirements, proposals, instructor manuals, course materials, video\ncassettes, transparencies, slides, presentations, proposals, printouts, studies, contracts, maintenance manuals, operational manuals, documentation,\nlicense agreements, marketing practices, marketing policies and procedures, marketing plans and strategies, marketing reports, strategic business\nplans, marketing analyses, seminar and class attendee rosters, trade show or exhibit attendee listings, listings of customer leads, and any other written\nor machine-readable expressions of such information as are fixed in any tangible media.\n1.6. Trade Secrets. I acknowledge and agree that the Company Confidential Information identified in paragraphs 1.1, 1.2, 1.3 and 1.5, above,\nconstitutes trade secrets of the Company.\n2. General Knowledge\nThe general skills, knowledge and experience gained during my employment with Company, and information publicly available or generally\nknown within the industry or trade areas in which the Company competes, are not considered Company Confidential Information.\n3. Employee Obligations\nDuring my employment with Company, I acknowledge and agree that I will have access to and become acquainted with Company Confidential\nInformation and materials, including its trade secrets, and will occupy a position of trust and confidence with respect to Company’s affairs, business\nand customer goodwill, and Company Confidential Information. I acknowledge and agree that the interests afforded protection by this Agreement\nare Company’s legitimate business interests, deserving of protection. I further acknowledge that the Company would not have entered into or\ncontinued its employment relationship with me without my execution of and agreement to this Agreement. I agree to take the following steps to\npreserve the confidential and proprietary nature of Company Confidential Information and materials and to preserve the Company’s goodwill:\n3.1. Non-Disclosure. During and after my employment with Company, I will not misuse, misappropriate, disclose or transfer in writing, orally\nor by electronic means, any Company Confidential Information, directly or indirectly, to any other person, or use Company Confidential Information\nin any way, except as is required in the course of my employment with Company, nor will I accept any employment or other professional\nengagement that likely will result in the use or disclosure, even if inadvertent, of Company Confidential Information. I further agree that Company\nConfidential Information includes information or material received by Company from others, including its affiliates, and intended by the Company\nto be kept in confidence by its recipients. I understand that I am not allowed to sell, license or otherwise exploit any products (including hardware or\nsoftware in any form) which embody or otherwise exploit in whole or in part any Company Confidential Information or materials. I acknowledge\nand agree that the sale, misappropriation, or unauthorized use or disclosure in writing, orally or by electronic means, at any time of Company\nConfidential Information obtained by me during the course of my employment constitutes unfair competition. I agree and promise not to engage in\nany unfair competition with Company, either during my employment or at any other time thereafter. I further acknowledge and agree that the\nCompany’s products and services can be developed and marketed nationwide, and therefore, the protection afforded the Company must likewise be\nnationwide.\n3.2. Preservation, Removal and Return of Information. I agree to take all reasonable steps to preserve the confidential and proprietary nature of\nCompany Confidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. I acknowledge and\nagree that all Company Confidential Information, whether prepared by me or otherwise coming into my possession while I am employed by the\nCompany, shall remain the exclusive property of Company. I agree that during my employment with the Company and thereafter, I will not use,\ndisclose, transfer, or remove from the Company’s premises any Company\nConfidential Information other than as authorized by the Company. I agree to return to the Company all Company Confidential Information and\ncopies thereof, in whatever form, at any time upon the request of the Company, and at the time of my termination of employment for any reason. I\nagree not to retain any copies of any Company Confidential Information and Company-owned materials after my termination of employment for any\nreason whatsoever. My obligations under this Section 3 shall continue after termination of my employment with the Company.\n3.3. Additional Covenants. I acknowledge the highly competitive nature of the industry in which the Company is involved, and I acknowledge\nthat: my services to the Company will be special and unique; my work for the Company will allow me access to the Company Confidential\nInformation, including trade secrets, and customers; the Company’s business is conducted throughout the United States and over the Internet and\nWorld Wide Web, enabling the Company and me to regularly provide services to customers nationwide; the Company would not have entered into\nthis Agreement but for the covenants and agreements contained in this Section 3; and the agreements and covenants contained in this Section 3 are\nreasonable and are necessary and essential to protect the business, trade secrets, Company Confidential Information, and goodwill of the Company. I\nfurther acknowledge that this Agreement does not restrict my ability to be gainfully employed, and I acknowledge that the geographic boundaries,\nscope of prohibited activities, and time duration of this subsection 3.3 are reasonable in nature and no broader than are necessary to protect the\nlegitimate business interests of the Company. I agree not to raise any objection to the reasonableness of this subsection 3.3 in any action or\nproceeding to enforce the terms of this Agreement. In order to induce the Company to enter into this Agreement, I covenant and agree that:\n(a) During my employment and for twelve (12) months following the termination of my employment with Company, whether voluntary\nor involuntary, without Company’s written express consent, I will not directly or indirectly solicit (other than on behalf of the Company) business or\ncontracts for any products or services of the type provided, developed or under development by the Company during my employment by the\nCompany, from or with (1) any person or entity which was a customer or sales agent of the Company for such products or services as of, or within\none year prior to the my date of termination with the Company, or (2) any prospective customer or sales agent which the Company was soliciting as\nof, or within one year prior to my termination. Additionally, during my employment and for twelve (12) months thereafter, I will not directly or\nindirectly contract with any such customer, prospective customer, sales agent or prospective sales agent for any product or service of the type\nprovided, developed or which was under development by the Company during my employment with the Company. I will not during my employment\nor for twelve (12) months thereafter knowingly interfere or attempt to interfere with any transaction, agreement or business relationship in which the\nCompany was involved or was contemplating during my employment with the Company, including but not limited to relationships with sales agents,\nindependent sales agents, customers, prospective customers, contractors, vendors, service providers, and suppliers.\n(b) During my employment and for 12 months after my employment with Company is terminated for any reason, I agree not to, directly\nor indirectly, solicit,\nrecruit, or hire, or in any manner assist in the hiring, solicitation or recruitment of: (1) any of the Company’s employees, or any individuals who were\nemployed by the Company within twelve (12) months of my termination of employment; or (2) any of the Company’s sales agents or the\nindependent sales agents of any affiliate of the Company, or any person or entity which was a Company sales agent or independent sales agent of a\nCompany affiliate within twelve (12) months prior to the termination of my employment with the Company.\n(c) To prevent the misuse, misappropriation, or unauthorized disclosure of Company’s trade secrets, including Company Confidential\nInformation, and to protect the goodwill of Company, I will not, during my employment and for twelve (12) months after termination of my\nemployment, without Company’s express written consent, directly or indirectly, individually or as an officer, director, employee, shareholder (except\nif as a shareholder of less than 1% of a publicly traded company), consultant, contractor, partner, joint venturer, agent, equity owner, or in any\ncapacity whatsoever, engage in or promote any business or contemplated business that is competitive with the “Company’s Business.” “Company’s\nBusiness” is the research, development, manufacture, sale and/or licensing of products and services related to communications, integrated\ncommunications, long-distance services, Internet access, eCommerce, hardware and software (whether owned or licensed by the Company), and data\nservices, including but not limited to local, domestic, and international long-distance services, local exchange services, wholesale long-distance\nservices, IP/ISP services, high-speed Internet access, DSL services, eCommerce, web hosting, ASP services, data networking, systems integration\nservices, and data communications services, together with any other businesses that Company engages in, plans to engage in or contemplates\nengaging in from the date hereof to the date of termination of my employment.\n3.4. The parties agree that if a Court of competent jurisdiction finds that any term of this Section 3 is for any reason excessively broad in scope\nor duration, such term shall be construed in a manner to enable it to be enforced to the maximum extent possible. Further, the covenants in this\nSection shall be deemed to be a series of separate covenants and agreements, one for each and every region of each state and political division\nworldwide. If, in any judicial proceeding, a court of competent jurisdiction shall refuse to enforce any of the separate covenants deemed included\nherein, then at the option of the Company, wholly unenforceable covenants shall be deemed eliminated from the provision hereof for the purpose of\nsuch proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such proceeding. In addition, if a court or other\nenforcement body finds that any provision of this Agreement may not be enforced as written because of some public policy, I agree that such court\nor enforcement body shall modify and construe such provision to permit its enforcement to the maximum extent permitted by law.\n3.5. Compensation. The Company agrees that if my employment is terminated voluntarily by me, or by the Company without Cause, as\ndefined below for purposes of this Section only, the Company shall, during the one-year period during which the “Additional Covenants” stated in\nsubsections 3.3(a), 3.3(b) and 3.3(c) above are in effect, (i) pay me an amount equal to the annualized base salary paid to me immediately prior to\ntermination of my employment, (ii) pay me, if applicable, an amount equal to the total\n5\namount of all commissions paid to me during the twelve-month period immediately preceding the first day of the month of the date of termination of\nmy employment with the Company, (iii) pay me, if applicable, the amount I would have been eligible to receive under the Company’s bonus plan for\nthe calendar year of the year in which the termination of my employment occurred, as if I had been an employee of the Company during the entire\napplicable bonus year (i.e., the payment shall not be pro-rated in any manner and any requirements of the bonus plan that I be employed by the\nCompany during all of the calendar year covered by the bonus plan and/or be on the Company’s payroll as of the date the bonus payments are\nactually paid out are expressly waived for me in this circumstance), and (iv) count the one-year period during which the “Additional Covenants”\nstated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect as one year of service for purposes of calculating the vested portion of any\nCompany stock options that have been granted to me (collectively, the “Non-Competition Compensation”). Payment of my annualized base salary\nshall be made in accordance with the Company’s customary payroll practices, and the Company shall be entitled to make any withholdings from\nsuch payments required by law or otherwise authorized by me, except that the Company shall have no obligation to accommodate my request for\ndirect deposit or voluntary deductions for any purposes. Payment of my commission amount (as described above) shall be made in twelve\ninstallments and will be paid to me according to the Company’s normal commission payment cycle during the one-year period in which the\n“Additional Covenants” stated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect. Payment of my bonus amount (as described above) shall\nbe made in accordance with the Company’s established bonus payout practices for the applicable calendar year, and payment shall be made to me at\nthe same time and in the same manner as that calendar year bonus is paid out to the Company’s employees generally. Continued payment of my base\nsalary, payment of my commissions and/or bonus, and continued vesting of my stock options, all under this subparagraph, shall not occur if\ntermination of my employment is due to my death, disability, or termination for “Cause,” as defined below.\n(a) Enforcement. Should I violate any terms of this Agreement, the Company, in addition to any other remedies available under law, may\ndiscontinue any payments being made to me pursuant to this Agreement and may discontinue any continuing vesting of stock options occurring\npursuant to this Agreement.\n \n(b) Termination for “Cause.” Termination for “Cause” in this subsection 3.5 shall mean termination of my employment with the\nCompany due to: (i) failure or refusal to perform the duties assigned to me, including but not limited to failure to reach assigned goals, quotas and/or\nobjectives; (ii) my refusal to follow the reasonable directives of the Board of Directors or Chief Executive Officer of Company or other\ninsubordination; (iii) conviction or plea of guilty or nolo contendere of a felony, or of a misdemeanor involving dishonesty or violence;\n(iv) misappropriation of any funds or property of the Company; (v) violation of any Company policies; (vi) breach of this Agreement; or\n(vii) commission of any act which could materially injure the business or reputation of, or materially adversely affect the interests, of Company.\n(c) Redundancy. Notwithstanding the foregoing, the payment of all or any portion (as the case may be) of my Non-Competition\nCompensation pursuant to this\nAgreement will cease if such payment would duplicate continued payments provided pursuant to any prior or subsequent agreement of any kind\nbetween me and the Company.\n3.6. E-Mail. I understand that the Company maintains an electronic mail system, Internet system and related facilities for the purpose of\nbusiness communications. I acknowledge that said systems and related facilities, as well as all electronic communications transmitted thereon, are\nCompany property, that I have no right to or expectation of privacy related to my use of such systems and facilities, and the Company retains the\nright to review any and all electronic mail communications, and my use of Internet and other electronic media, with or without notice, at any time.\n4. Prior Proprietary Information and Conflicting Obligations\nDuring my employment with Company, I agree that I will not knowingly improperly use or disclose any proprietary information or trade\nsecrets of any former employer or other person or entity intended by such person or entity not to be disclosed to Company. I further agree that I will\nnot bring onto Company’s premises any unpublished document or proprietary information belonging to any such former employer, person or entity\nunless consented to in writing by such employer, person or entity. I agree to inform the Company of any apparent conflicts between my work for\nCompany and any obligations I may have to preserve the confidentiality of another’s proprietary information or materials; otherwise, the Company\nmay conclude that no such conflict exists and I agree thereafter to make no such claim against Company. Company shall receive such disclosures in\nconfidence and consistent with the objectives of avoiding any conflict of obligations and rights or the appearance of any conflict of interest.\nInventions directly relating and applicable and useful to the Company’s business, if any, patented or unpatented, which I made prior to the\ncommencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, I have\nset forth on Exhibit 1 (Prior Inventions) attached hereto a complete list of all such Inventions that I have, alone or jointly with others, conceived,\ndeveloped or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with\nthe Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement\n(collectively referred to as “Prior Inventions”). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality\nagreement, I understand that I am not to list such Prior Inventions in Exhibit 1 but am only to disclose a cursory name for each such invention, a\nlisting of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit 1 for such purpose. If no such disclosure is attached, I represent that there are no such Prior Inventions. If, in the course of my\nemployment with the Company, I incorporate a Prior Invention into a Company product, test, service or process, the Company is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to\nmake, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be\nincorporated, Prior Inventions in any Company Inventions without the Company’s prior written consent.\n7\nI represent that, to the best of my knowledge, my performance of all of the terms of this Agreement and as an employee of the Company does\nnot and will not breach any agreement to keep in confidence proprietary information acquired by me prior to my employment by the Company.\nFurther, I represent that, to the best of my knowledge, the performance of my duties with the Company will not breach any contractual or other legal\nobligation I have to any third person.\n5. Ideas and Inventions\n5.1. I agree that any and all intellectual properties, including, but not limited to, all ideas, concepts, themes, inventions, designs, tests,\nprocedures, research methods, improvements, discoveries, developments, formulas, patterns, devices, processes, software programs, hardware\ninformation, engineering and other information related to the integration of hardware and software, software program codes, logic diagrams, flow\ncharts, decision charts, drawings, procedural diagrams, coding sheets, documentation manuals, technical data, client, customer and supplier lists, and\ncompilations of information, records, and specifications, and other matters constituting trade secrets or Company Confidential Information, that\nrelate in any way to the actual or prospective business of the Company or to any experimental or developmental work carried on by Company, and\nthat are conceived, developed or written by me, either individually or jointly in collaboration with others during my employment, and all designs,\nplans, reports, specifications, drawings, inventions, processes, test data and/or other information or items produced by me while performing my\nduties for the Company, shall belong to and be the sole and exclusive property of Company, are “works for hire”, and to the extent they are not\n“works for hire”, I hereby assign all of my rights, title and interest in such intellectual properties to the Company, including without limitation, all\npatent, copyright or trade secret rights therein.\n5.2. I further agree to assist Company in obtaining patents on all inventions, designs, improvements and discoveries that are patentable, or\ncopyright registrations on all works of authorship, and to execute all documents and do all things necessary to vest Company with full and exclusive\ntitle and protect against infringement by others. I agree to give the Company or its designees all assistance reasonably required to perfect such rights\nprovided that following termination of my employment, the Company shall reimburse me for my reasonable time and expense in assisting with such\nmatters. I further agree that if the Company is unable, after reasonable effort, to secure my signature on any such papers, any executive officer of the\nCompany shall be entitled to execute any such papers as my agent and attorney-in-fact, and I hereby irrevocably designate and appoint each\nexecutive officer of the Company as my agent and attorney-in-fact to execute any such papers on my behalf, and to take any and all actions as the\nCompany may deem necessary or desirable in order to protect its rights and interests in any work, under the conditions described in this sentence. I\npromise and agree that I will promptly and fully inform the Company of and disclose to Company all intellectual properties described in Section 5.1\nabove that I make during my employment with Company, whether individually or jointly in collaboration with others, that pertain or\n8\nrelate to the actual or potential business of Company or to any experimental or developmental work carried on by Company, whether or not\nconceived during regular working hours. I agree to make full disclosure to Company immediately after creating or making any of the intellectual\nproperties identified in Section 5.1, and shall thereafter keep Company fully informed at all times of all progress in connection therewith. I also\npromise and agree that I will promptly disclose to Company all patent applications filed by me or on my behalf within a year after termination of my\nemployment that relate to or concern actual or contemplated business of the Company.\n5.3. Moral Rights. I understand that the term “moral rights” means any rights of attribution or integrity, including any right to claim authorship\nof a copyrightable work, to object to a modification of such copyrightable work, and any similar right existing under the judicial or statutory law of\nany country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.” I\nforever hereby waive and agree never to assert any moral rights I may have in any copyrightable work that is assigned to Company as a result of this\nSection, even after any termination of my employment with Company.\n6. “At Will” Nature of Relationship\nNothing herein shall be construed as constituting an agreement, understanding or commitment of any kind that the Company shall continue to\nemploy me for any period of time. I hereby acknowledge and agree that my employment with the Company is and shall be “at will,” terminable by\nme or by the Company at any time with or without cause and with or without notice. Without limiting the generality of the foregoing, I acknowledge\nthat I will be subject to immediate dismissal for any breach of this Agreement.\n7. Enforcement\nI acknowledge and agree that the restrictions contained in this Agreement are reasonable and necessary to protect the business, trade secrets,\nConfidential Information, goodwill and other interests of the Company and that any violation of these restrictions would cause the Company\nsubstantial irreparable injury. Accordingly, I agree that a remedy at law for any breach of the covenants or other obligations in this Agreement would\nbe inadequate and that the Company, in addition to any other remedies available, shall be entitled to obtain preliminary and permanent injunctive\nrelief to secure specific performance of such covenants and to prevent a breach or threatened breach of this Agreement without the necessity of\nproving actual damage and without the necessity of posting bond or security, which I expressly waive. I will provide the Company a full accounting\nof all proceeds and profits received by me as a result of or in connection with a breach of this Agreement. Unless prohibited by law, the Company\nshall have the right to retain any amounts otherwise payable by the Company to me to satisfy any of my obligations as a result of any breach of this\nAgreement. I hereby agree to indemnify and hold harmless the Company from and against any damages incurred by the Company as assessed by a\ncourt of competent jurisdiction as a result of any breach of this Agreement by me. I agree that each of my obligations specified in this Agreement is a\nseparate and independent covenant that shall survive termination of my employment for any reason and that the unenforceability of any of them shall\nnot preclude the enforcement of any other covenants in this Agreement.\n8. Notification of New Employer\nIn the event that I leave the employ of Company, voluntarily or involuntarily, I agree to inform any subsequent employer of my rights and\nobligations under this Agreement. I further hereby authorize Company to notify my new employer about my rights and obligations under this\nagreement. The foregoing consent is limited to the delivery by Company to my new employer a signed copy of this Agreement, and any written\nmodifications thereto, and not to any characterization thereof made by Company.\n9. Choice of Law\nThis Agreement and its terms will be construed, enforced and governed by the laws of the State of Delaware without regard to conflict or\nchoice of law rules or other principles that might otherwise refer construction or interpretation of this Agreement to the substantive law of a\njurisdiction other than Delaware.\n10. Forum Selection\nWith regard to any claims, complaints or proceedings brought related to my obligations under this Agreement, at all times each party hereto\n(a) irrevocably submits to the exclusive jurisdiction of any New York court or Federal court sitting in the State of New York in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and irrevocably agrees that all claims in respect of\nany such action or proceeding may be heard and determined in such New York or Federal court; (b) to the extent permitted by law irrevocably\nconsents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such party at the address\nspecified at the end of this Agreement; (c) to the extent permitted by law irrevocably confirms that service of process out of such courts in such\nmanner shall be deemed due service upon such party for the purposes of such action or proceeding; (d) to the extent permitted by law irrevocably\nwaives (i) any objection such party may have to the laying of venue of any such action or proceeding in any of such courts, or (ii) any claim that\nsuch party may have that any such action or proceeding has been brought in an inconvenient forum; and (e) to the extent permitted by law\nirrevocably agrees that a final nonappealable judgment in any such action or proceeding shall be conclusive and may be enforced in other\njurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Section 10 shall affect the right of any party hereto to\nserve legal process in any manner permitted by law.\n11. Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and permitted assigns, including\nany corporation or entity with which or into which the Company may be merged or which may succeed to its assets or business, provided, however,\nthat my obligations, as an employee, are personal and shall not be assigned by me.\n \n10\n12. General Terms\nThis is my entire agreement with Company with respect to its subject matter, superseding any prior oral or written, express or implied\nnegotiations and agreements. This Agreement may not be changed in any respect except by a written agreement signed by both myself and an officer\nof Company. If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability\nof the remaining provisions will not in any way be affected or impaired thereby. The delay or omission by the Company or me in exercising its/my\nrights under this Agreement, or the failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this\nAgreement by the other party, shall not be deemed a waiver of any terms, covenants or conditions of this Agreement, nor shall any waiver or\nrelinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all times or any other\ntime. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or\nsubstance of any section of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, and all of which together shall constitute one and the same instrument. It is the express intention and agreement of the parties hereto that all\ncovenants, agreements and statements made by any party in this Agreement shall survive the execution and delivery of this Agreement. In addition,\nthe covenants, agreements and statements made in this Agreement shall survive termination of my employment with the Company for any reason.\nBy my signature below, I acknowledge that I have reviewed this Agreement carefully and understand that the covenants and obligations it\ncontains are binding on me.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Senior Vice President Confidentiality, Non-Solicitation and\nNon-Competition Agreement as of the __ day of ,20__\nEMPLOYEE\nSignature\nPrinted Name\nHome Address\nSocial Security #\nDivision/Company/Location\nExhibit 1 attached hereto: Yes No\nPAETEC COMMUNICATIONS, INC.\nBy:\nJolanda Chesonis\nVice President of Human Resources\n11\nEXHIBIT 1\nPRIOR INVENTIONS\nThis Exhibit 1 sets forth a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice\nor caused to be conceived, developed or reduced to practice prior to the commencement of my Employment with the Company, that I consider to be\nmy property or the property of third parties and that I wish to have excluded from the scope of the Senior Vice President Confidentiality, Non-\nSolicitation and Non-Competition Agreement (“Agreement”) (collectively referred to as “Prior Inventions™).\nI understand that if disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I am not to list such\nPrior Inventions in this Exhibit 1 but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and\nthe fact that full disclosure as to such inventions has not been made for that reason. A space is provided below for such purpose.\nIf no such disclosure is attached, I represent that there are no Prior Inventions.\nDescription of Prior Inventions And Related Documents (if applicable):\nName of\nTitle and Description Date of Owners of Witness(es) to\nof Invention And Related Document Invention/ Document Invention/Document Invention/ Document\nIf no information is listed herein, I hereby affirm that I do not have any such prior intellectual properties, inventions or other works to identify.\nSignature\nName\nDate	EX-10.1 2 dex101.htm FORM OF SENIOR VICE PRESIDENT CONFIDENTIALITY\nExhibit 10.1\nPAETEC COMMUNICATIONS, INC.\nSENIOR VICE PRESIDENT CONFIDENTIALITY, NON-SOLICITATION AND\nNON-COMPETITION AGREEMENT\nThis Senior Vice President Confidentiality, Non-Solicitation and Non-Competition Agreement (this "Agreement") is entered into as of the date\nset forth on the signature page hereto between PAETEC Communications, Inc., a Delaware corporation, including any subsidiary, successor or\naffiliate of the Company with which I work (collectively, the "Company"), and\n("I" or "me"))\nWHEREAS, the Company now has and expects to develop confidential and proprietary materials and highly sensitive information of\nimmeasurable value, which I recognize must be carefully protected as set forth below for the Company to be successful;\nNOW, THEREFORE, to induce the Company to employ me and in consideration of my employment or continued employment by the\nCompany and other good and valuable consideration the sufficiency of which I expressly acknowledge, the Company and I hereby agree, intending\nto be legally bound, as follows:\n1. Company Confidential Materials and Information\nThe following materials and information, whether having existed, now existing, or to be developed or created during the term of my\nemployment by Company (herein referred to collectively as the "Company Confidential Information") are covered by this Senior Vice President\nConfidentiality, Non-Solicitation and Non-Competition Agreement ("Agreement"):\n1.1. Products and Services. All information to which the Company gave me access, all information disclosed to me by the Company, and all\ninformation developed for the Company by me, alone or with others, that directly or indirectly relates to the business, products and/or services that\nthe Company engages in, plans to engage in or contemplates engaging in, including but not limited to research, development, manufacture, sale\nand/or licensing of products and services related to communications, integrated communications, long-distance services, Internet access,\neCommerce, hardware and software (whether owned or licensed by the Company), and data services, including but not limited to local, domestic,\nand\ninternational long-distance services, local exchange services, wholesale long-distance services, IP/ISP services, high-speed Internet\naccess,\nDSL\nservices, eCommerce, web hosting, ASP services, data networking, systems integration services, and data communications services and other\nproprietary products or services, whether existing or in any stage of research and development (such as trade secrets, inventions, ideas, methods,\ntechnical and laboratory data, engineering data and information, engineering information related to the integration of communications devices and\nequipment, benchmark test results, processes, design specifications, algorithms, technical data, technical formulas, engineering data, processes,\nmanufacturing data, procedures, techniques, methodologies, information processing processes, and strategies).\n1.2. Business and Marketing Procedures and Customer Information. All information concerning or relating to the way Company conducts its\nbusiness, markets\nits products and services, and all information relating to any Company customers and sales agents or prospective customers and sales agents (such as\ninternal business procedures, business strategies, marketing plans and strategies, controls, plans, licensing techniques and practices, supplier,\nsubcontractor and prime contractor names and contracts and other vendor information, customer information and requirements, sales agent\ninformation, computer system passwords and other computer security controls, financial information, distributor information, information supplied\nby clients and customers of Company and employee data).\n1.3. Not Generally Known. Any information in addition to the foregoing which is not generally known to the public or within the industry or\ntrade areas in which Company competes, through no fault of mine, which gives the Company any advantage over its competitors.\n1.4. Third-Party. Information. Any information that is confidential and proprietary to a third party that the Company has and in the future will\nreceive from such third party subject to the Company's duty to maintain the confidentiality of such information and to use it for certain limited\npurposes.\n1.5. All Physical Embodiments of Products, Services, Business, Marketing, Customer and Other Information. All the physical embodiments of\nall\nof the information included in Sections 1.1, 1.2, 1.3 and 1.4 above, including but not limited to research programs, research data, testing data,\nsoftware, compositions, compounds, hardware, works of authorship, source code, other computer code, correspondence, check lists, samples, forms,\nledgers, financial data, financial statements, financial reports, forecasts and projections, discounts, margins, costs, credit terms, pricing practices,\npricing\npolicies and procedures, goals and objectives, quoting practices, quoting procedures and policies, financial and operational analyses and\nstudies, management reports of every kind, databases, employment records pertaining to employees other than myself, customer data including\ncustomer lists, contracts, representatives, requirements and needs, specifications, data provided by or about prospective, existing or past customers\nand contract terms applicable to such customers, engineering notebooks, notes, drawings, work sheets, schematics, load modules, schematics,\nannotations, flow charts, logic diagrams, procedural diagrams, coding sheets, requirements, proposals, instructor manuals, course materials, video\ncassettes, transparencies, slides, presentations, proposals, printouts, studies, contracts, maintenance manuals, operational manuals, documentation,\nlicense agreements, marketing practices, marketing policies and procedures, marketing plans and strategies, marketing reports, strategic business\nplans, marketing analyses, seminar and class attendee rosters, trade show or exhibit attendee listings, listings of customer leads, and any other written\nor machine-readable expressions of such information as are fixed in any tangible media.\n1.6. Trade Secrets. I acknowledge and agree that the Company Confidential Information identified in paragraphs 1.1, 1.2, 1.3 and 1.5, above,\nconstitutes trade secrets of the Company.\n2\n2. General Knowledge\nThe general skills, knowledge and experience gained during my employment with Company, and information publicly available or generally\nknown within the industry or trade areas in which the Company competes, are not considered Company Confidential Information.\n3. Employee Obligations\nDuring my employment with Company, I acknowledge and agree that I will have access to and become acquainted with Company Confidential\nInformation and materials, including its trade secrets, and will occupy a position of trust and confidence with respect to Company's affairs, business\nand customer goodwill, and Company Confidential Information. I acknowledge and agree that the interests afforded protection by this Agreement\nare Company's legitimate business interests, deserving of protection. I further acknowledge that the Company would not have entered into or\ncontinued its employment relationship with me without my execution of and agreement to this Agreement. I agree to take the following steps\nto\npreserve the confidential and proprietary nature of Company Confidential Information and materials and to preserve the Company's goodwill:\n3.1. Non-Disclosure. During and after my employment with Company, I will not misuse, misappropriate, disclose or transfer in writing, orally\nor\nby electronic means, any Company Confidential Information, directly or indirectly, to any other person, or use Company Confidential Information\nin any way, except as is required in the course of my employment with Company, nor will I accept any employment or other professional\nengagement that likely will result in the use or disclosure, even if inadvertent, of Company Confidential Information. I further agree that Company\nConfidential Information includes information or material received by Company from others, including its affiliates, and intended by the Company\nto be kept in confidence by its recipients. I understand that I am not allowed to sell, license or otherwise exploit any products (including hardware or\nsoftware in any form) which embody or otherwise exploit in whole or in part any Company Confidential Information or materials. I acknowledge\nand agree that the sale, misappropriation, or unauthorized use or disclosure in writing, orally or by electronic means, at any time of Company\nConfidential Information obtained by me during the course of my employment constitutes unfair competition. I agree and promise not to engage\nin\nany unfair competition with Company, either during my employment or at any other time thereafter. I further acknowledge and agree that the\nCompany's products and services can be developed and marketed nationwide, and therefore, the protection afforded the Company must likewise\nbe\nnationwide.\n3.2 Preservation, Removal and Return of Information. I agree to take all reasonable steps to preserve the confidential and proprietary nature of\nCompany Confidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. I acknowledge and\nagree that all Company Confidential Information, whether prepared by me or otherwise coming into my possession while I am employed by the\nCompany, shall remain the exclusive property of Company. I agree that during my employment with the Company and thereafter, I will not use,\ndisclose, transfer, or remove from the Company's premises any Company\n3\nConfidential Information other than as authorized by the Company. I agree to return to the Company all Company Confidential Information and\ncopies thereof, in whatever form, at any time upon the request of the Company, and at the time of my termination of employment for any reason. I\nagree not to retain any copies of any Company Confidential Information and Company-owned materials after my termination of employment for any\nreason whatsoever. My obligations under this Section 3 shall continue after termination of my employment with the Company.\n3.3. Additional Covenants. I acknowledge the highly competitive nature of the industry in which the Company is involved, and I acknowledge\nthat: my services to the Company will be special and unique; my work for the Company will allow me access to the Company Confidential\nInformation, including trade secrets, and customers; the Company's business is conducted throughout the United States and over the Internet and\nWorld Wide Web, enabling the Company and me to regularly provide services to customers nationwide; the Company would not have entered into\nthis Agreement but for the covenants and agreements contained in this Section 3; and the agreements and covenants contained in this Section 3 are\nreasonable and are necessary and essential to protect the business, trade secrets, Company Confidential Information, and goodwill of the Company. I\nfurther acknowledge that this Agreement does not restrict my ability to be gainfully employed, and I acknowledge that the geographic boundaries,\nscope of prohibited activities, and time duration of this subsection 3.3 are reasonable in nature and no broader than are necessary to protect the\nlegitimate business interests of the Company. I agree not to raise any objection to the reasonableness of this subsection 3.3 in any action\nor\nproceeding to enforce the terms of this Agreement. In order to induce the Company to enter into this Agreement, I covenant and agree that:\n(a) During my employment and for twelve (12) months following the termination of my employment with Company, whether voluntary\nor involuntary, without Company's written express consent, I will not directly or indirectly solicit (other than on behalf of the Company) business or\ncontracts for any products or services of the type provided, developed or under development by the Company during my employment by the\nCompany, from or with (1) any person or entity which was a customer or sales agent of the Company for such products or services as of, or within\none year prior to the my date of termination with the Company, or (2) any prospective customer or sales agent which the Company was soliciting as\nof, or within one year prior to my termination. Additionally, during my employment and for twelve (12) months thereafter, I will not directly or\nindirectly contract with any such customer, prospective customer, sales agent or prospective sales agent for any product or service of the type\nprovided,\ndeveloped\nor\nwhich\nwas\nunder\ndevelopment\nby\nthe\nCompany\nduring\nmy\nemployment\nwith\nthe\nCompany.\nI\nwill\nnot\nduring\nmy\nemployment\nCompany was involved or was contemplating during my employment with the Company, including but not limited to relationships with sales agents, the\nor for twelve (12) months thereafter knowingly interfere or attempt to interfere with any transaction, agreement or business relationship in which\nindependent sales agents, customers, prospective customers, contractors, vendors, service providers, and suppliers.\n(b) During my employment and for 12 months after my employment with Company is terminated for any reason, I agree not to, directly\nor indirectly, solicit,\n4\nrecruit, or hire, or in any manner assist in the hiring, solicitation or recruitment of: (1) any of the Company's employees, or any individuals who\nwere\nemployed by the Company within twelve (12) months of my termination of employment; or (2) any of the Company's sales agents or the\nindependent sales agents of any affiliate of the Company, or any person or entity which was a Company sales agent or independent sales agent of\na\nCompany affiliate within twelve (12) months prior to the termination of my employment with the Company.\n(c) To prevent the misuse, misappropriation, or unauthorized disclosure of Company's trade secrets, including Company Confidential\nInformation, and to protect the goodwill of Company, I will not, during my employment and for twelve (12) months after termination of my\nemployment, without Company's express written consent, directly or indirectly, individually or as an officer, director, employee, shareholder (except\nif as a shareholder of less than 1% of a publicly traded company), consultant, contractor, partner, joint venturer, agent, equity owner, or in any\ncapacity whatsoever, engage in or promote any business or contemplated business that is competitive with the "Company's Business." "Company's\nBusiness" is the research, development, manufacture, sale and/or licensing of products and services related to communications, integrated\ncommunications, long-distance services, Internet access, eCommerce, hardware and software (whether owned or licensed by the Company), and data\nservices, including but not limited to local, domestic, and international long-distance services, local exchange services, wholesale long-distance\nservices, IP/ISP services, high-speed Internet access, DSL services, eCommerce, web hosting, ASP services, data networking, systems integration\nservices, and data communications services, together with any other businesses that Company engages in, plans to engage in or contemplates\nengaging in from the date hereof to the date of termination of my employment.\n3.4. The parties agree that if a Court of competent jurisdiction finds that any term of this Section 3 is for any reason excessively broad in scope\nor duration, such term shall be construed in a manner to enable it to be enforced to the maximum extent possible. Further, the covenants in this\nSection shall be deemed to be a series of separate covenants and agreements, one for each and every region of each state and political division\nworldwide. If, in any judicial proceeding, a court of competent jurisdiction shall refuse to enforce any of the separate covenants deemed included\nherein, then at the option of the Company, wholly unenforceable covenants shall be deemed eliminated from the provision hereof for the purpose of\nsuch proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such proceeding. In addition, if a court or other\nenforcement body finds that any provision of this Agreement may not be enforced as written because of some public policy, I agree that such court\nor enforcement body shall modify and construe such provision to permit its enforcement to the maximum extent permitted by law.\n3.5. Compensation. The Company agrees that if my employment is terminated voluntarily by me, or by the Company without Cause, as\ndefined below for purposes of this Section only, the Company shall, during the one-year period during which the "Additional Covenants" stated in\nsubsections 3.3(a), 3.3(b) and 3.3(c) above are in effect, (i) pay me an amount equal to the annualized base salary paid to me immediately prior\nto\ntermination of my employment, (ii) pay me, if applicable, an amount equal to the total\n5\namount of all commissions paid to me during the twelve-month period immediately preceding the first day of the month of the date of termination of\nmy\nemployment with the Company, (iii) pay me, if applicable, the amount I would have been eligible to receive under the Company's bonus plan for\nthe calendar year of the year in which the termination of my employment occurred, as if I had been an employee of the Company during the entire\napplicable bonus year (i.e., the payment shall not be pro-rated in any manner and any requirements of the bonus plan that I be employed by the\nCompany during all of the calendar year covered by the bonus plan and/or be on the Company's payroll as of the date the bonus payments are\nactually paid out are expressly waived for me in this circumstance), and (iv) count the one-year period during which the "Additional Covenants"\nstated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect as one year of service for purposes of calculating the vested portion of any\nCompany stock options that have been granted to me (collectively, the "Non-Competition Compensation"). Payment of my annualized base salary\nshall be made in accordance with the Company's customary payroll practices, and the Company shall be entitled to make any withholdings from\nsuch payments required by law or otherwise authorized by me, except that the Company shal have no obligation to accommodate my request for\ndirect deposit or voluntary deductions for any purposes. Payment of my commission amount (as described above) shall be made in twelve\ninstallments and will be paid to me according to the Company's normal commission payment cycle during the one-year period in which the\n"Additional Covenants" stated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect. Payment of my bonus amount (as described above) shall\nbe made in accordance with the Company's established bonus payout practices for the applicable calendar year, and payment shall be made to me at\nthe same time and in the same manner as that calendar year bonus is paid out to the Company's employees generally. Continued payment of my base\nsalary, payment of my commissions and/or bonus, and continued vesting of my stock options, all under this subparagraph, shall not occur if\ntermination of my employment is due to my death, disability, or termination for "Cause," as defined below.\n(a) Enforcement. Should I violate any terms of this Agreement, the Company, in addition to any other remedies available under law, may\ndiscontinue any payments being made to me pursuant to this Agreement and may discontinue any continuing vesting of stock options occurring\npursuant to this Agreement.\n(b) Termination for "Cause." Termination for "Cause" in this subsection 3.5 shall mean termination of my employment with the\nCompany due to: (i) failure or refusal to perform the duties assigned to me, including but not limited to failure to reach assigned goals, quotas and/or\nobjectives; (ii) my refusal to follow the reasonable directives of the Board of Directors or Chief Executive Officer of Company or other\ninsubordination; (iii) conviction or plea of guilty or nolo contendere of a felony, or of a misdemeanor involving dishonesty or violence;\n(iv) misappropriation of any funds or property of the Company; (v) violation of any Company policies; (vi) breach of this Agreement; or\n(vii) commission of any act which could materially injure the business or reputation of, or materially adversely affect the interests, of Company.\n(c) Redundancy.. Notwithstanding the foregoing, the payment of all or any portion (as the case may be) of my Non-Competition\nCompensation pursuant to this\n6\nAgreement will cease if such payment would duplicate continued payments provided pursuant to any prior or subsequent agreement of any kind\nbetween me and the Company.\n3.6. E-Mail. I understand that the Company maintains an electronic mail system, Internet system and related facilities for the purpose of\nbusiness communications. I acknowledge that said systems and related facilities, as well as all electronic communications transmitted thereon,\nare\nCompany\nproperty, that I have no right to or expectation of privacy related to my use of such systems and facilities, and the Company retains the\nright to review any and all electronic mail communications, and my use of Internet and other electronic media, with or without notice, at any time.\n4. Prior Proprietary Information and Conflicting Obligations\nDuring my employment with Company, I agree that I will not knowingly improperly use or disclose any proprietary information or trade\nsecrets of any former employer or other person or entity intended by such person or entity not to be disclosed to Company. I further agree that I will\nnot bring onto Company's premises any unpublished document or proprietary information belonging to any such former employer, person or entity\nunless consented to in writing by such employer, person or entity I agree to inform the Company of any apparent conflicts between my work for\nCompany and any obligations I may have to preserve the confidentiality of another's proprietary information or materials; otherwise, the Company\nmay conclude that no such conflict exists and I agree thereafter to make no such claim against Company. Company shall receive such disclosures\nin\nconfidence and consistent with the objectives of avoiding any conflict of obligations and rights or the appearance of any conflict of interest.\nInventions directly relating and applicable and useful to the Company's business, if any, patented or unpatented, which I made prior to the\ncommencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, I have\nset forth on Exhibit 1 (Prior Inventions) attached hereto a complete list of all such Inventions that I have, alone or jointly with others, conceived,\ndeveloped or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with\nthe Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement\n(collectively referred to as "Prior Inventions"). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality\nagreement, I understand that I am not to list such Prior Inventions in Exhibit 1 but am only to disclose a cursory name for each such invention,\na\nlisting of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit 1 for such purpose. If no such disclosure is attached, I represent that there are no such Prior Inventions. If, in\nthe\ncourse\nof\nmy\nemployment with the Company, I incorporate a Prior Invention into a Company product, test, service or process, the Company is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to\nmake, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be\nincorporated, Prior Inventions in any Company Inventions without the Company's prior written consent.\n7\nI represent that, to the best of my knowledge, my performance of all of the terms of this Agreement and as an employee of the Company does\nnot and will not breach any agreement to keep in confidence proprietary information acquired by me prior to my employment by the Company.\nFurther, I represent that, to the best of my knowledge, the performance of my duties with the Company will not breach any contractual or other legal\nobligation I have to any third person.\n5. Ideas and Inventions\n5.1. I agree that any and all intellectual properties, including, but not limited to, all ideas, concepts, themes, inventions, designs, tests,\nprocedures, research methods, improvements, discoveries, developments, formulas, patterns, devices, processes, software programs, hardware\ninformation, engineering and other information related to the integration of hardware and software, software program codes, logic diagrams, flow\ncharts, decision charts, drawings, procedural diagrams, coding sheets, documentation manuals, technical data, client, customer and supplier lists, and\ncompilations of information, records, and specifications, and other matters constituting trade secrets or Company Confidential Information, that\nrelate in any way to the actual or prospective business of the Company or to any experimental or developmental work carried on by Company, and\nthat are conceived, developed or written by me, either individually or jointly in collaboration with others during my employment, and all designs,\nplans, reports, specifications, drawings, inventions, processes, test data and/or other information or items produced by me while performing my\nduties for the Company, shall belong to and be the sole and exclusive property of Company, are "works for hire", and to the extent they are not\n"'works for hire", I hereby assign all of my rights, title and interest in such intellectual properties to the Company, including without limitation, all\npatent, copyright or trade secret rights therein.\n5.2. I further agree to assist Company in obtaining patents on all inventions, designs, improvements and discoveries that are patentable, or\ncopyright\nregistrations\non\nall\nworks\nof\nauthorship,\nand\nto\nexecute\nall\ndocuments\nand\ndo\nall\nthings\nnecessary\nto\nvest\nCompany\nwith\nfull\nand\nexclusive\ntitle and protect against infringement by others. I agree to give the Company or its designees all assistance reasonably required to perfect such rights\nprovided that following termination of my employment, the Company shall reimburse me for my reasonable time and expense in assisting with such\nmatters. I further agree that if the Company is unable, after reasonable effort, to secure my signature on any such papers, any executive officer of the\nCompany shall be entitled to execute any such papers as my agent and attorney-in-fact, and I hereby irrevocably designate and appoint each\nexecutive officer of the Company as my agent and attorney-in-fact to execute any such papers on my behalf, and to take any and all actions as the\nCompany may deem necessary or desirable in order to protect its rights and interests in any work, under the conditions described in this sentence. I\npromise and agree that I will promptly and fully inform the Company of and disclose to Company all intellectual properties described in Section 5.1\nabove that I make during my employment with Company, whether individually or jointly in collaboration with others, that pertain or\n8\nrelate to the actual or potential business of Company or to any experimental or developmental work carried on by Company, whether or not\nconceived during regular working hours. I agree to make full disclosure to Company immediately after creating or making any of the intellectual\nproperties identified in Section 5.1, and shall thereafter keep Company fully informed at all times of all progress in connection therewith. I also\npromise and agree that I will promptly disclose to Company all patent applications filed by me or on my behalf within a year after termination of my\nemployment that relate to or concern actual or contemplated business of the Company.\n5.3. Moral Rights. I understand that the term "moral rights" means any rights of attribution or integrity, including any right to claim authorship\nof a copyrightable work, to object to a modification of such copyrightable work, and any similar right existing under the judicial or statutory law\nof\nany country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a "moral right." I\nforever hereby waive and agree never to assert any moral rights I may have in any copyrightable work that is assigned to Company as a result of this\nSection, even after any termination of my employment with Company.\n6. "At Will" Nature of Relationship\nNothing herein shall be construed as constituting an agreement, understanding or commitment of any kind that the Company shall continue to\nemploy me for any period of time. I hereby acknowledge and agree that my employment with the Company is and shall be "at will," terminable by\nme or by the Company at any time with or without cause and with or without notice. Without limiting the generality of the foregoing, I acknowledge\nthat I will be subject to immediate dismissal for any breach of this Agreement.\n7. Enforcement\nI acknowledge and agree that the restrictions contained in this Agreement are reasonable and necessary to protect the business, trade secrets,\nConfidential Information, goodwill and other interests of the Company and that any violation of these restrictions would cause the Company\nsubstantial irreparable injury. Accordingly, I agree that a remedy at law for any breach of the covenants or other obligations in this Agreement would\nbe inadequate and that the Company, in addition to any other remedies available, shall be entitled to obtain preliminary and permanent injunctive\nrelief to secure specific performance of such covenants and to prevent a breach or threatened breach of this Agreement without the necessity\nof\nproving actual damage and without the necessity of posting bond or security, which I expressly waive. I will provide the Company a full accounting\nof all proceeds and profits received by me as a result of or in connection with a breach of this Agreement. Unless prohibited by law, the Company\nshall have the right to retain any amounts otherwise payable by the Company to me to satisfy any of my obligations as a result of any breach of this\nAgreement. I hereby agree to indemnify and hold harmless the Company from and against any damages incurred by the Company as assessed by a\ncourt of competent jurisdiction as a result of any breach of this Agreement by me. I agree that each of my obligations specified in this Agreement is a\nseparate and independent covenant that shall survive termination of my employment for any reason and that the unenforceability of any of them shall\nnot preclude the enforcement of any other covenants in this Agreement.\n9\n8. Notification of New Employer\nIn the event that I leave the employ of Company, voluntarily or involuntarily, I agree to inform any subsequent employer of my rights and\nobligations under this Agreement I further hereby authorize Company to notify my new employer about my rights and obligations under this\nagreement. The foregoing consent is limited to the delivery by Company to my new employer a signed copy of this Agreement, and any written\nmodifications thereto, and not to any characterization thereof made by Company.\n9. Choice of Law\nThis Agreement and its terms will be construed, enforced and governed by the laws of the State of Delaware without regard to conflict or\nchoice of law rules or other principles that might otherwise refer construction or interpretation of this Agreement to the substantive law of a\njurisdiction other than Delaware.\n10. Forum Selection\nWith regard to any claims, complaints or proceedings brought related to my obligations under this Agreement, at all times each party hereto\n(a) irrevocably submits to the exclusive jurisdiction of any New York court or Federal court sitting in the State of New York in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and irrevocably agrees that all claims in respect of\nany\nsuch action or proceeding may be heard and determined in such New York or Federal court; (b) to the extent permitted by law irrevocably\nconsents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such party at the address\nspecified at the end of this Agreement; (c) to the extent permitted by law irrevocably confirms that service of process out of such courts in such\nmanner shall be deemed due service upon such party for the purposes of such action or proceeding; (d) to the extent permitted by law irrevocably\nwaives (i) any objection such party may have to the laying of venue of any such action or proceeding in any of such courts, or (ii) any claim that\nsuch party may have that any such action or proceeding has been brought in an inconvenient forum; and (e) to the extent permitted by law\nirrevocably agrees that a final nonappealable judgment in any such action or proceeding shall be conclusive and may be enforced in other\njurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Section 10 shall affect the right of any party hereto to\nserve legal process in any manner permitted by law.\n11. Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and permitted assigns, including\nany corporation or entity with which or into which the Company may be merged or which may succeed to its assets or business, provided, however,\nthat my obligations, as an employee, are personal and shall not be assigned by me.\n10\n12. General Terms\nThis is my entire agreement with Company with respect to its subject matter, superseding any prior oral or written, express or implied\nnegotiations and agreements. This Agreement may not be changed in any respect except by a written agreement signed by both myself and an officer\nof Company. If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability\nof\nthe\nremaining provisions will not in any way be affected or impaired thereby. The delay or omission by the Company or me in exercising its/my\nrights under this Agreement, or the failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this\nAgreement by the other party, shall not be deemed a waiver of any terms, covenants or conditions of this Agreement, nor shall any waiver or\nrelinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all times or any other\ntime. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or\nsubstance of any section of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, and all of which together shall constitute one and the same instrument. It is the express intention and agreement of the parties hereto that all\ncovenants, agreements and statements made by any party in this Agreement shall survive the execution and delivery of this Agreement. In addition,\nthe\ncovenants, agreements and statements made in this Agreement shall survive termination of my employment with the Company for any reason.\nBy my signature below, I acknowledge that I have reviewed this Agreement carefully and understand that the covenants and obligations\nit\ncontains are binding on me.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Senior Vice President Confidentiality, Non-Solicitation and\nNon-Competition Agreement as of the - day of , 20_. 20\nEMPLOYEE\nSignature\nPrinted Name\nHome Address\nSocial Security #\nDivision/Company/Location\nExhibit 1 attached hereto:\nYes\nNo\nPAETEC COMMUNICATIONS, INC.\nBy:\nJolanda Chesonis\nVice President of Human Resources\n11\nEXHIBIT 1\nPRIOR INVENTIONS\nThis Exhibit 1 sets forth a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice\nor\ncaused to be conceived, developed or reduced to practice prior to the commencement of my Employment with the Company, that I consider to be\nmy property or the property of third parties and that I wish to have excluded from the scope of the Senior Vice President Confidentiality, Non-\nSolicitation and Non-Competition Agreement ("Agreement") (collectively referred to as "Prior Inventions").\nI\nunderstand that if disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I am not to list such\nPrior Inventions in this Exhibit 1 but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and\nthe fact that full disclosure as to such inventions has not been made for that reason. A space is provided below for such purpose.\nIf no such disclosure is attached, I represent that there are no Prior Inventions.\nDescription of Prior Inventions And Related Documents (if applicable):\nName of\nTitle and Description\nDate of\nOwners of\nWitness(es) to\nof Invention And Related Document\nInvention/ Document\nInvention/Document\nInvention/ Document\nIf no information is listed herein, I hereby affirm that I do not have any such prior intellectual properties, inventions or other works to identify.\nSignature\nName\nDate	EX-10.1 2 dex101.htm FORM OF SENIOR VICE PRESIDENT CONFIDENTIALITY\nExhibit 10.1\nPAETEC COMMUNICATIONS, INC.\nSENIOR VICE PRESIDENT CONFIDENTIALITY, NON-SOLICITATION AND\nNON-COMPETITION AGREEMENT\nThis Senior Vice President Confidentiality, Non-Solicitation and Non-Competition Agreement (this “Agreement”) is entered into as of the date\nset forth on the signature page hereto between PAETEC Communications, Inc., a Delaware corporation, including any subsidiary, successor or\naffiliate of the Company with which I work (collectively, the “Company”), and\n(“I” or “me”)).\nWHEREAS, the Company now has and expects to develop confidential and proprietary materials and highly sensitive information of\nimmeasurable value, which I recognize must be carefully protected as set forth below for the Company to be successful;\nNOW, THEREFORE, to induce the Company to employ me and in consideration of my employment or continued employment by the\nCompany and other good and valuable consideration the sufficiency of which I expressly acknowledge, the Company and I hereby agree, intending\nto be legally bound, as follows:\n1. Company Confidential Materials and Information\nThe following materials and information, whether having existed, now existing, or to be developed or created during the term of my\nemployment by Company (herein referred to collectively as the “Company Confidential Information”) are covered by this Senior Vice President\nConfidentiality, Non-Solicitation and Non-Competition Agreement (“Agreement”):\n1.1. Products and Services. All information to which the Company gave me access, all information disclosed to me by the Company, and all\ninformation developed for the Company by me, alone or with others, that directly or indirectly relates to the business, products and/or services that\nthe Company engages in, plans to engage in or contemplates engaging in, including but not limited to research, development, manufacture, sale\nand/or licensing of products and services related to communications, integrated communications, long-distance services, Internet access,\neCommerce, hardware and software (whether owned or licensed by the Company), and data services, including but not limited to local, domestic,\nand international long-distance services, local exchange services, wholesale long-distance services, IP/ISP services, high-speed Internet access, DSL\nservices, eCommerce, web hosting, ASP services, data networking, systems integration services, and data communications services and other\nproprietary products or services, whether existing or in any stage of research and development (such as trade secrets, inventions, ideas, methods,\ntechnical and laboratory data, engineering data and information, engineering information related to the integration of communications devices and\nequipment, benchmark test results, processes, design specifications, algorithms, technical data, technical formulas, engineering data, processes,\nmanufacturing data, procedures, techniques, methodologies, information processing processes, and strategies).\n1.2. Business and Marketing Procedures and Customer Information. All information concerning or relating to the way Company conducts its\nbusiness, markets\nits products and services, and all information relating to any Company customers and sales agents or prospective customers and sales agents (such as\ninternal business procedures, business strategies, marketing plans and strategies, controls, plans, licensing techniques and practices, supplier,\nsubcontractor and prime contractor names and contracts and other vendor information, customer information and requirements, sales agent\ninformation, computer system passwords and other computer security controls, financial information, distributor information, information supplied\nby clients and customers of Company and employee data).\n1.3. Not Generally Known. Any information in addition to the foregoing which is not generally known to the public or within the industry or\ntrade areas in which Company competes, through no fault of mine, which gives the Company any advantage over its competitors.\n1.4. Third-Party Information. Any information that is confidential and proprietary to a third party that the Company has and in the future will\nreceive from such third party subject to the Company’s duty to maintain the confidentiality of such information and to use it for certain limited\npurposes.\n1.5. All Physical Embodiments of Products, Services, Business, Marketing, Customer and Other Information. All the physical embodiments of\nall of the information included in Sections 1.1, 1.2, 1.3 and 1.4 above, including but not limited to research programs, research data, testing data,\nsoftware, compositions, compounds, hardware, works of authorship, source code, other computer code, correspondence, check lists, samples, forms,\nledgers, financial data, financial statements, financial reports, forecasts and projections, discounts, margins, costs, credit terms, pricing practices,\npricing policies and procedures, goals and objectives, quoting practices, quoting procedures and policies, financial and operational analyses and\nstudies, management reports of every kind, databases, employment records pertaining to employees other than myself, customer data including\ncustomer lists, contracts, representatives, requirements and needs, specifications, data provided by or about prospective, existing or past customers\nand contract terms applicable to such customers, engineering notebooks, notes, drawings, work sheets, schematics, load modules, schematics,\nannotations, flow charts, logic diagrams, procedural diagrams, coding sheets, requirements, proposals, instructor manuals, course materials, video\ncassettes, transparencies, slides, presentations, proposals, printouts, studies, contracts, maintenance manuals, operational manuals, documentation,\nlicense agreements, marketing practices, marketing policies and procedures, marketing plans and strategies, marketing reports, strategic business\nplans, marketing analyses, seminar and class attendee rosters, trade show or exhibit attendee listings, listings of customer leads, and any other written\nor machine-readable expressions of such information as are fixed in any tangible media.\n1.6. Trade Secrets. I acknowledge and agree that the Company Confidential Information identified in paragraphs 1.1, 1.2, 1.3 and 1.5, above,\nconstitutes trade secrets of the Company.\n2\n2. General Knowledge\nThe general skills, knowledge and experience gained during my employment with Company, and information publicly available or generally\nknown within the industry or trade areas in which the Company competes, are not considered Company Confidential Information.\n3. Employee Obligations\nDuring my employment with Company, I acknowledge and agree that I will have access to and become acquainted with Company Confidential\nInformation and materials, including its trade secrets, and will occupy a position of trust and confidence with respect to Company’s affairs, business\nand customer goodwill, and Company Confidential Information. I acknowledge and agree that the interests afforded protection by this Agreement\nare Company’s legitimate business interests, deserving of protection. I further acknowledge that the Company would not have entered into or\ncontinued its employment relationship with me without my execution of and agreement to this Agreement. I agree to take the following steps to\npreserve the confidential and proprietary nature of Company Confidential Information and materials and to preserve the Company’s goodwill:\n3.1. Non-Disclosure. During and after my employment with Company, I will not misuse, misappropriate, disclose or transfer in writing, orally\nor by electronic means, any Company Confidential Information, directly or indirectly, to any other person, or use Company Confidential Information\nin any way, except as is required in the course of my employment with Company, nor will I accept any employment or other professional\nengagement that likely will result in the use or disclosure, even if inadvertent, of Company Confidential Information. I further agree that Company\nConfidential Information includes information or material received by Company from others, including its affiliates, and intended by the Company\nto be kept in confidence by its recipients. I understand that I am not allowed to sell, license or otherwise exploit any products (including hardware or\nsoftware in any form) which embody or otherwise exploit in whole or in part any Company Confidential Information or materials. I acknowledge\nand agree that the sale, misappropriation, or unauthorized use or disclosure in writing, orally or by electronic means, at any time of Company\nConfidential Information obtained by me during the course of my employment constitutes unfair competition. I agree and promise not to engage in\nany unfair competition with Company, either during my employment or at any other time thereafter. I further acknowledge and agree that the\nCompany’s products and services can be developed and marketed nationwide, and therefore, the protection afforded the Company must likewise be\nnationwide.\n3.2. Preservation, Removal and Return of Information. I agree to take all reasonable steps to preserve the confidential and proprietary nature of\nCompany Confidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. I acknowledge and\nagree that all Company Confidential Information, whether prepared by me or otherwise coming into my possession while I am employed by the\nCompany, shall remain the exclusive property of Company. I agree that during my employment with the Company and thereafter, I will not use,\ndisclose, transfer, or remove from the Company’s premises any Company\n3\nConfidential Information other than as authorized by the Company. I agree to return to the Company all Company Confidential Information and\ncopies thereof, in whatever form, at any time upon the request of the Company, and at the time of my termination of employment for any reason. I\nagree not to retain any copies of any Company Confidential Information and Company-owned materials after my termination of employment for any\nreason whatsoever. My obligations under this Section 3 shall continue after termination of my employment with the Company.\n3.3. Additional Covenants. I acknowledge the highly competitive nature of the industry in which the Company is involved, and I acknowledge\nthat: my services to the Company will be special and unique; my work for the Company will allow me access to the Company Confidential\nInformation, including trade secrets, and customers; the Company’s business is conducted throughout the United States and over the Internet and\nWorld Wide Web, enabling the Company and me to regularly provide services to customers nationwide; the Company would not have entered into\nthis Agreement but for the covenants and agreements contained in this Section 3; and the agreements and covenants contained in this Section 3 are\nreasonable and are necessary and essential to protect the business, trade secrets, Company Confidential Information, and goodwill of the Company. I\nfurther acknowledge that this Agreement does not restrict my ability to be gainfully employed, and I acknowledge that the geographic boundaries,\nscope of prohibited activities, and time duration of this subsection 3.3 are reasonable in nature and no broader than are necessary to protect the\nlegitimate business interests of the Company. I agree not to raise any objection to the reasonableness of this subsection 3.3 in any action or\nproceeding to enforce the terms of this Agreement. In order to induce the Company to enter into this Agreement, I covenant and agree that:\n(a) During my employment and for twelve (12) months following the termination of my employment with Company, whether voluntary\nor involuntary, without Company’s written express consent, I will not directly or indirectly solicit (other than on behalf of the Company) business or\ncontracts for any products or services of the type provided, developed or under development by the Company during my employment by the\nCompany, from or with (1) any person or entity which was a customer or sales agent of the Company for such products or services as of, or within\none year prior to the my date of termination with the Company, or (2) any prospective customer or sales agent which the Company was soliciting as\nof, or within one year prior to my termination. Additionally, during my employment and for twelve (12) months thereafter, I will not directly or\nindirectly contract with any such customer, prospective customer, sales agent or prospective sales agent for any product or service of the type\nprovided, developed or which was under development by the Company during my employment with the Company. I will not during my employment\nor for twelve (12) months thereafter knowingly interfere or attempt to interfere with any transaction, agreement or business relationship in which the\nCompany was involved or was contemplating during my employment with the Company, including but not limited to relationships with sales agents,\nindependent sales agents, customers, prospective customers, contractors, vendors, service providers, and suppliers.\n(b) During my employment and for 12 months after my employment with Company is terminated for any reason, I agree not to, directly\nor indirectly, solicit,\n4\nrecruit, or hire, or in any manner assist in the hiring, solicitation or recruitment of: (1) any of the Company’s employees, or any individuals who were\nemployed by the Company within twelve (12) months of my termination of employment; or (2) any of the Company’s sales agents or the\nindependent sales agents of any affiliate of the Company, or any person or entity which was a Company sales agent or independent sales agent of a\nCompany affiliate within twelve (12) months prior to the termination of my employment with the Company.\n(c) To prevent the misuse, misappropriation, or unauthorized disclosure of Company’s trade secrets, including Company Confidential\nInformation, and to protect the goodwill of Company, I will not, during my employment and for twelve (12) months after termination of my\nemployment, without Company’s express written consent, directly or indirectly, individually or as an officer, director, employee, shareholder (except\nif as a shareholder of less than 1% of a publicly traded company), consultant, contractor, partner, joint venturer, agent, equity owner, or in any\ncapacity whatsoever, engage in or promote any business or contemplated business that is competitive with the “Company’s Business.” “Company’s\nBusiness” is the research, development, manufacture, sale and/or licensing of products and services related to communications, integrated\ncommunications, long-distance services, Internet access, eCommerce, hardware and software (whether owned or licensed by the Company), and data\nservices, including but not limited to local, domestic, and international long-distance services, local exchange services, wholesale long-distance\nservices, IP/ISP services, high-speed Internet access, DSL services, eCommerce, web hosting, ASP services, data networking, systems integration\nservices, and data communications services, together with any other businesses that Company engages in, plans to engage in or contemplates\nengaging in from the date hereof to the date of termination of my employment.\n3.4. The parties agree that if a Court of competent jurisdiction finds that any term of this Section 3 is for any reason excessively broad in scope\nor duration, such term shall be construed in a manner to enable it to be enforced to the maximum extent possible. Further, the covenants in this\nSection shall be deemed to be a series of separate covenants and agreements, one for each and every region of each state and political division\nworldwide. If, in any judicial proceeding, a court of competent jurisdiction shall refuse to enforce any of the separate covenants deemed included\nherein, then at the option of the Company, wholly unenforceable covenants shall be deemed eliminated from the provision hereof for the purpose of\nsuch proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such proceeding. In addition, if a court or other\nenforcement body finds that any provision of this Agreement may not be enforced as written because of some public policy, I agree that such court\nor enforcement body shall modify and construe such provision to permit its enforcement to the maximum extent permitted by law.\n3.5. Compensation. The Company agrees that if my employment is terminated voluntarily by me, or by the Company without Cause, as\ndefined below for purposes of this Section only, the Company shall, during the one-year period during which the “Additional Covenants” stated in\nsubsections 3.3(a), 3.3(b) and 3.3(c) above are in effect, (i) pay me an amount equal to the annualized base salary paid to me immediately prior to\ntermination of my employment, (ii) pay me, if applicable, an amount equal to the total\n5\namount of all commissions paid to me during the twelve-month period immediately preceding the first day of the month of the date of termination of\nmy employment with the Company, (iii) pay me, if applicable, the amount I would have been eligible to receive under the Company’s bonus plan for\nthe calendar year of the year in which the termination of my employment occurred, as if I had been an employee of the Company during the entire\napplicable bonus year (i.e., the payment shall not be pro-rated in any manner and any requirements of the bonus plan that I be employed by the\nCompany during all of the calendar year covered by the bonus plan and/or be on the Company’s payroll as of the date the bonus payments are\nactually paid out are expressly waived for me in this circumstance), and (iv) count the one-year period during which the “Additional Covenants”\nstated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect as one year of service for purposes of calculating the vested portion of any\nCompany stock options that have been granted to me (collectively, the “Non-Competition Compensation”). Payment of my annualized base salary\nshall be made in accordance with the Company’s customary payroll practices, and the Company shall be entitled to make any withholdings from\nsuch payments required by law or otherwise authorized by me, except that the Company shall have no obligation to accommodate my request for\ndirect deposit or voluntary deductions for any purposes. Payment of my commission amount (as described above) shall be made in twelve\ninstallments and will be paid to me according to the Company’s normal commission payment cycle during the one-year period in which the\n“Additional Covenants” stated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect. Payment of my bonus amount (as described above) shall\nbe made in accordance with the Company’s established bonus payout practices for the applicable calendar year, and payment shall be made to me at\nthe same time and in the same manner as that calendar year bonus is paid out to the Company’s employees generally. Continued payment of my base\nsalary, payment of my commissions and/or bonus, and continued vesting of my stock options, all under this subparagraph, shall not occur if\ntermination of my employment is due to my death, disability, or termination for “Cause,” as defined below.\n(a) Enforcement. Should I violate any terms of this Agreement, the Company, in addition to any other remedies available under law, may\ndiscontinue any payments being made to me pursuant to this Agreement and may discontinue any continuing vesting of stock options occurring\npursuant to this Agreement.\n(b) Termination for “Cause.” Termination for “Cause” in this subsection 3.5 shall mean termination of my employment with the\nCompany due to: (i) failure or refusal to perform the duties assigned to me, including but not limited to failure to reach assigned goals, quotas and/or\nobjectives; (ii) my refusal to follow the reasonable directives of the Board of Directors or Chief Executive Officer of Company or other\ninsubordination; (iii) conviction or plea of guilty or nolo contendere of a felony, or of a misdemeanor involving dishonesty or violence;\n(iv) misappropriation of any funds or property of the Company; (v) violation of any Company policies; (vi) breach of this Agreement; or\n(vii) commission of any act which could materially injure the business or reputation of, or materially adversely affect the interests, of Company.\n(c) Redundancy. Notwithstanding the foregoing, the payment of all or any portion (as the case may be) of my Non-Competition\nCompensation pursuant to this\n6\nAgreement will cease if such payment would duplicate continued payments provided pursuant to any prior or subsequent agreement of any kind\nbetween me and the Company.\n3.6. E -Mail. I understand that the Company maintains an electronic mail system, Internet system and related facilities for the purpose of\nbusiness communications. I acknowledge that said systems and related facilities, as well as all electronic communications transmitted thereon, are\nCompany property, that I have no right to or expectation of privacy related to my use of such systems and facilities, and the Company retains the\nright to review any and all electronic mail communications, and my use of Internet and other electronic media, with or without notice, at any time.\n4. Prior Proprietary Information and Conflicting Obligations\nDuring my employment with Company, I agree that I will not knowingly improperly use or disclose any proprietary information or trade\nsecrets of any former employer or other person or entity intended by such person or entity not to be disclosed to Company. I further agree that I will\nnot bring onto Company’s premises any unpublished document or proprietary information belonging to any such former employer, person or entity\nunless consented to in writing by such employer, person or entity. I agree to inform the Company of any apparent conflicts between my work for\nCompany and any obligations I may have to preserve the confidentiality of another’s proprietary information or materials; otherwise, the Company\nmay conclude that no such conflict exists and I agree thereafter to make no such claim against Company. Company shall receive such disclosures in\nconfidence and consistent with the objectives of avoiding any conflict of obligations and rights or the appearance of any conflict of interest.\nInventions directly relating and applicable and useful to the Company’s business, if any, patented or unpatented, which I made prior to the\ncommencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, I have\nset forth on Exhibit 1 (Prior Inventions) attached hereto a complete list of all such Inventions that I have, alone or jointly with others, conceived,\ndeveloped or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with\nthe Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement\n(collectively referred to as “Prior Inventions”). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality\nagreement, I understand that I am not to list such Prior Inventions in Exhibit 1 but am only to disclose a cursory name for each such invention, a\nlisting of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit 1 for such purpose. If no such disclosure is attached, I represent that there are no such Prior Inventions. If, in the course of my\nemployment with the Company, I incorporate a Prior Invention into a Company product, test, service or process, the Company is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to\nmake, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be\nincorporated, Prior Inventions in any Company Inventions without the Company’s prior written consent.\n7\nI represent that, to the best of my knowledge, my performance of all of the terms of this Agreement and as an employee of the Company does\nnot and will not breach any agreement to keep in confidence proprietary information acquired by me prior to my employment by the Company.\nFurther, I represent that, to the best of my knowledge, the performance of my duties with the Company will not breach any contractual or other legal\nobligation I have to any third person.\n5. Ideas and Inventions\n5.1. I agree that any and all intellectual properties, including, but not limited to, all ideas, concepts, themes, inventions, designs, tests,\nprocedures, research methods, improvements, discoveries, developments, formulas, patterns, devices, processes, software programs, hardware\ninformation, engineering and other information related to the integration of hardware and software, software program codes, logic diagrams, flow\ncharts, decision charts, drawings, procedural diagrams, coding sheets, documentation manuals, technical data, client, customer and supplier lists, and\ncompilations of information, records, and specifications, and other matters constituting trade secrets or Company Confidential Information, that\nrelate in any way to the actual or prospective business of the Company or to any experimental or developmental work carried on by Company, and\nthat are conceived, developed or written by me, either individually or jointly in collaboration with others during my employment, and all designs,\nplans, reports, specifications, drawings, inventions, processes, test data and/or other information or items produced by me while performing my\nduties for the Company, shall belong to and be the sole and exclusive property of Company, are “works for hire”, and to the extent they are not\n“works for hire”, I hereby assign all of my rights, title and interest in such intellectual properties to the Company, including without limitation, all\npatent, copyright or trade secret rights therein.\n5.2. I further agree to assist Company in obtaining patents on all inventions, designs, improvements and discoveries that are patentable, or\ncopyright registrations on all works of authorship, and to execute all documents and do all things necessary to vest Company with full and exclusive\ntitle and protect against infringement by others. I agree to give the Company or its designees all assistance reasonably required to perfect such rights\nprovided that following termination of my employment, the Company shall reimburse me for my reasonable time and expense in assisting with such\nmatters. I further agree that if the Company is unable, after reasonable effort, to secure my signature on any such papers, any executive officer of the\nCompany shall be entitled to execute any such papers as my agent and attorney-in-fact, and I hereby irrevocably designate and appoint each\nexecutive officer of the Company as my agent and attorney-in-fact to execute any such papers on my behalf, and to take any and all actions as the\nCompany may deem necessary or desirable in order to protect its rights and interests in any work, under the conditions described in this sentence. I\npromise and agree that I will promptly and fully inform the Company of and disclose to Company all intellectual properties described in Section 5.1\nabove that I make during my employment with Company, whether individually or jointly in collaboration with others, that pertain or\n8\nrelate to the actual or potential business of Company or to any experimental or developmental work carried on by Company, whether or not\nconceived during regular working hours. I agree to make full disclosure to Company immediately after creating or making any of the intellectual\nproperties identified in Section 5.1, and shall thereafter keep Company fully informed at all times of all progress in connection therewith. I also\npromise and agree that I will promptly disclose to Company all patent applications filed by me or on my behalf within a year after termination of my\nemployment that relate to or concern actual or contemplated business of the Company.\n5.3. Moral Rights. I understand that the term “moral rights” means any rights of attribution or integrity, including any right to claim authorship\nof a copyrightable work, to object to a modification of such copyrightable work, and any similar right existing under the judicial or statutory law of\nany country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.” I\nforever hereby waive and agree never to assert any moral rights I may have in any copyrightable work that is assigned to Company as a result of this\nSection, even after any termination of my employment with Company.\n6. “At Will” Nature of Relationship\nNothing herein shall be construed as constituting an agreement, understanding or commitment of any kind that the Company shall continue to\nemploy me for any period of time. I hereby acknowledge and agree that my employment with the Company is and shall be “at will,” terminable by\nme or by the Company at any time with or without cause and with or without notice. Without limiting the generality of the foregoing, I acknowledge\nthat I will be subject to immediate dismissal for any breach of this Agreement.\n7. Enforcement\nI acknowledge and agree that the restrictions contained in this Agreement are reasonable and necessary to protect the business, trade secrets,\nConfidential Information, goodwill and other interests of the Company and that any violation of these restrictions would cause the Company\nsubstantial irreparable injury. Accordingly, I agree that a remedy at law for any breach of the covenants or other obligations in this Agreement would\nbe inadequate and that the Company, in addition to any other remedies available, shall be entitled to obtain preliminary and permanent injunctive\nrelief to secure specific performance of such covenants and to prevent a breach or threatened breach of this Agreement without the necessity of\nproving actual damage and without the necessity of posting bond or security, which I expressly waive. I will provide the Company a full accounting\nof all proceeds and profits received by me as a result of or in connection with a breach of this Agreement. Unless prohibited by law, the Company\nshall have the right to retain any amounts otherwise payable by the Company to me to satisfy any of my obligations as a result of any breach of this\nAgreement. I hereby agree to indemnify and hold harmless the Company from and against any damages incurred by the Company as assessed by a\ncourt of competent jurisdiction as a result of any breach of this Agreement by me. I agree that each of my obligations specified in this Agreement is a\nseparate and independent covenant that shall survive termination of my employment for any reason and that the unenforceability of any of them shall\nnot preclude the enforcement of any other covenants in this Agreement.\n9\n8. Notification of New Employer\nIn the event that I leave the employ of Company, voluntarily or involuntarily, I agree to inform any subsequent employer of my rights and\nobligations under this Agreement. I further hereby authorize Company to notify my new employer about my rights and obligations under this\nagreement. The foregoing consent is limited to the delivery by Company to my new employer a signed copy of this Agreement, and any written\nmodifications thereto, and not to any characterization thereof made by Company.\n9. Choice of Law\nThis Agreement and its terms will be construed, enforced and governed by the laws of the State of Delaware without regard to conflict or\nchoice of law rules or other principles that might otherwise refer construction or interpretation of this Agreement to the substantive law of a\njurisdiction other than Delaware.\n10. Forum Selection\nWith regard to any claims, complaints or proceedings brought related to my obligations under this Agreement, at all times each party hereto\n(a) irrevocably submits to the exclusive jurisdiction of any New York court or Federal court sitting in the State of New York in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and irrevocably agrees that all claims in respect of\nany such action or proceeding may be heard and determined in such New York or Federal court; (b) to the extent permitted by law irrevocably\nconsents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such party at the address\nspecified at the end of this Agreement; (c) to the extent permitted by law irrevocably confirms that service of process out of such courts in such\nmanner shall be deemed due service upon such party for the purposes of such action or proceeding; (d) to the extent permitted by law irrevocably\nwaives (i) any objection such party may have to the laying of venue of any such action or proceeding in any of such courts, or (ii) any claim that\nsuch party may have that any such action or proceeding has been brought in an inconvenient forum; and (e) to the extent permitted by law\nirrevocably agrees that a final nonappealable judgment in any such action or proceeding shall be conclusive and may be enforced in other\njurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Section 10 shall affect the right of any party hereto to\nserve legal process in any manner permitted by law.\n11. Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and permitted assigns, including\nany corporation or entity with which or into which the Company may be merged or which may succeed to its assets or business, provided, however,\nthat my obligations, as an employee, are personal and shall not be assigned by me.\n10\n12. General Terms\nThis is my entire agreement with Company with respect to its subject matter, superseding any prior oral or written, express or implied\nnegotiations and agreements. This Agreement may not be changed in any respect except by a written agreement signed by both myself and an officer\nof Company. If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability\nof the remaining provisions will not in any way be affected or impaired thereby. The delay or omission by the Company or me in exercising its/my\nrights under this Agreement, or the failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this\nAgreement by the other party, shall not be deemed a waiver of any terms, covenants or conditions of this Agreement, nor shall any waiver or\nrelinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all times or any other\ntime. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or\nsubstance of any section of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, and all of which together shall constitute one and the same instrument. It is the express intention and agreement of the parties hereto that all\ncovenants, agreements and statements made by any party in this Agreement shall survive the execution and delivery of this Agreement. In addition,\nthe covenants, agreements and statements made in this Agreement shall survive termination of my employment with the Company for any reason.\nBy my signature below, I acknowledge that I have reviewed this Agreement carefully and understand that the covenants and obligations it\ncontains are binding on me.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Senior Vice President Confidentiality, Non-Solicitation and\nNon-Competition Agreement as of the day of\n,20\n.\nEMPLOYEE\nSignature\nPrinted Name\nHome Address\nSocial Security #\nDivision/Company/Location\nExhibit 1 attached hereto:\nYes\nNo\nPAETEC COMMUNICATIONS, INC.\nBy:\nJolanda Chesonis\nVice President of Human Resources\n11\nEXHIBIT 1\nPRIOR INVENTIONS\nThis Exhibit 1 sets forth a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice\nor caused to be conceived, developed or reduced to practice prior to the commencement of my Employment with the Company, that I consider to be\nmy property or the property of third parties and that I wish to have excluded from the scope of the Senior Vice President Confidentiality, Non-\nSolicitation and Non-Competition Agreement (“Agreement”) (collectively referred to as “Prior Inventions”).\nI understand that if disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I am not to list such\nPrior Inventions in this Exhibit 1 but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and\nthe fact that full disclosure as to such inventions has not been made for that reason. A space is provided below for such purpose.\nIf no such disclosure is attached, I represent that there are no Prior Inventions.\nDescription of Prior Inventions And Related Documents (if applicable):\nTitle and Description\nof Invention And Related Document\nDate of\nInvention/ Document\nOwners of\nInvention/Document\nName of\nWitness(es) to\nInvention/ Document\nIf no information is listed herein, I hereby affirm that I do not have any such prior intellectual properties, inventions or other works to identify.\nSignature\nName\nDate
e0d6825deb5a5292ec233e2f27445b7a.pdf	effective_date jurisdiction party term	EX-10.(III)A(72) 9 dex10iiia72.htm CONFIDENTIALITY AND RESTRICTIVE COVENANTS AGREEMENT\nExhibit 10(iii)A(72)\nEXECUTION COPY\nCONFIDENTIALITY AND\nRESTRICTIVE COVENANTS AGREEMENT\nTHIS AGREEMENT (the “Agreement”) is entered into this 23rd day of July, 2007, between Acuity Brands, Inc. (“Acuity”) and Acuity Brands\nLighting, Inc. f/k/a Acuity Lighting Group, Inc. (“ABL”) (Acuity and ABL are collectively referred to as the “Company”) and John K. Morgan\n(“Executive”).\nReasons for this Agreement: Executive is currently employed as President and Chief Executive Officer of ABL and as an Executive Vice President\nof Acuity pursuant to an amended and restated employment letter agreement dated August 1, 2005 (“Prior Agreement”) between Executive and the\nCompany. Simultaneously herewith, Executive is entering into a further amended and restated employment letter agreement (the “Employment\nAgreement”), which sets forth the terms and conditions of Executive’s employment with Acuity and Executive’s election as President and Chief\nExecutive Officer of Acuity Specialty Products Group, Inc. (“ASP”). Executive and the Company acknowledge that Acuity is contemplating a\ncorporate restructuring of Acuity and a subsequent distribution by Acuity of the stock of ASP (or a successor to ASP’s business and operations) to\nthe stockholders of Acuity (the “Spinoff”). The parties also recognize that the restructuring and Spinoff are subject to final approval of the Board of\nDirectors of Acuity after satisfaction of certain conditions. After the Spinoff, Executive will serve as Chairman, President and Chief Executive\nOfficer of ASP and will cease to be employed by Acuity and ABL.\nAcknowledgements: The Company and Executive agree that during Executive’s relationship with the Company, Executive has learned and has had\naccess to important proprietary information related to ABL’s Business, as defined below. Executive acknowledges that such proprietary information\nis not generally available to the public and includes information about ABL’s customers, systems, operations, finances, suppliers, and business.\nExecutive further acknowledges that such proprietary information has been and was developed through ABL’s expenditure of substantial effort, time\nand money; and together with relationships developed by Executive with customers, employees, and suppliers, could be used to compete unfairly\nwith ABL.\nExecutive acknowledges that during the period of his employment as President and Chief Executive Officer of Acuity Brands Lighting, Inc. and\nExecutive Vice President of Acuity Brands, Inc., he has rendered executive, strategic and managerial services, including the Executive Services, to\nand for Acuity and ABL throughout the United States, which are special, unusual, extraordinary, and of peculiar value to Acuity and ABL. Executive\nfurther acknowledges that the services he performed on behalf of Acuity and ABL, including the Executive Services, were at a senior managerial\nlevel and were not limited in their territorial scope to any particular city, state, or region, but instead had nationwide impact throughout the United\nStates. Executive further acknowledges and agrees that: (a) Acuity and ABL’s business is, at the very least, national in scope; and (b) these\nrestrictions are reasonable and necessary to protect the Confidential Information, business relationships, and goodwill of Acuity and ABL.\nIn consideration for the Company’s agreement to provide the benefits described below, the sufficiency of which is acknowledged, the Company and\nExecutive agree:\n1) Definitions: For this Agreement, the following terms shall have the meaning specified below:\na) ABL’s Business shall mean the manufacture and/or sale of one or more of the following classes of product: lighting fixtures, electric\nlinear modular lighting systems comprised of plug-in relocatable modular wiring components, emergency lighting fixtures and systems\n(comprised of exit signs, emergency light units, back-up power battery packs, and combinations thereof), electric lighting track units,\ncast aluminum historically styled lighting poles, flexible wiring systems and components (namely, flexible branch circuits, attachment\nplugs, receptacles, connectors and fittings), lighting control systems intended to be used for switching, monitoring, and dimming\nelectrical lighting, the manufacture and sale of all of the above classes of product and includes Confidential Information regarding the\nmanufacture and sale of all of the above classes of product.\nb) Confidential Information shall mean any information, without regard to form, relating to ABL’s customers, operations, finances, and\nbusiness that derives economic value, actual or potential, from not being generally known to other Persons, including but not limited to\ntechnical or non-technical data, compilations (including compilations of customer information), programs, methods, devices, techniques,\nprocesses, financial data, pricing methodology, formulas, patterns, strategies, studies, business development, software systems,\nmarketing techniques and lists of actual or potential customers (including identifying information about customers), whether or not in\nwriting. Confidential Information includes information disclosed to ABL by third parties that ABL is obligated to maintain as\nconfidential. Confidential Information subject to this Agreement may include information that is not a trade secret under applicable law,\nbut information not constituting a trade secret only shall be treated as Confidential Information under this Agreement for a two-year\nperiod after the Effective Date.\nc) Customers shall mean customers of ABL that Executive (i) contacted directly or indirectly or otherwise serviced on behalf of ABL\nduring the two-year period preceding the date of this Agreement; or (ii) about whom Executive possessed Confidential Information\nduring the two-year period preceding the date of this Agreement, including, without limitation, The Home Depot, Consolidated\nElectrical Distributors, Graybar Electric, Rexel Inc., and Sonepar USA.\nd) Direct ABL Competitor means the following entities: (1) Cooper Lighting, Inc.; (2) Genlyte Thomas Group LLC; (3) Juno Lighting,\nInc. Schneider; (4) Hubbell Lighting, Inc.; (5) Philips, (6) General Electric, (7) Osram Sylvania, (8) Siemens, as well as any of their\nrespective affiliates, subsidiaries and/or parent companies that are either located or transact business within the United States of America,\nbut only to the extent each, and only with respect to the business operation which, engages in the manufacture and/or sale of one or more\nclasses of products competitive with ABL’s Business.\n2\ne) Effective Date shall mean the earlier of (i) the date on which the Spinoff is effective or (ii) November 30, 2007.\nf) Executive Services means those principal duties and responsibilities that Executive performed on behalf of Acuity and ABL during his\nemployment, within twenty-four (24) months prior to the date of this Agreement, as President and Chief Executive Officer of ABL and\nExecutive Vice President of Acuity, in which capacity Executive: (1) served as a member of a group of Executives responsible for a\nmulti-profit center organization, with responsibility for the profitability of two or more distinct profit centers; (2) developed, coordinated\nand executed efforts directed towards enhancing branding, marketing, and business development capabilities; (3) worked to develop\nstrategic customers and key channels of distribution; (4) coordinated with departmental heads concerning material business issues;\n(5) analyzed operations to pinpoint opportunities and areas that may have needed to be reorganized, down-sized, or eliminated;\n(6) conferred with other Executives to coordinate and prioritize planning concerning material business issues; (7) studied short-term and\nlong-range economic trends and projects, prospects for future growth in overall sales and market share, opportunities for acquisitions or\nexpansion into new product areas; (8) served as a member of the Acuity Leadership Team, reviewing, discussing, evaluating, and\nparticipating in decisions concerning material business and management issues, cost structures, sales and growth opportunities, crisis\nmanagement, strategic prospects, personnel issues, litigation matters, leadership goals, and performance targets; and (9) provided support\nand analysis for key leadership analysis requirements.\ng) Person shall mean any individual, corporation, partnership, association, unincorporated organization or other entity.\nh) Territory shall mean the territory of the United States. Executive acknowledges that ABL is licensed to do business and in fact does\nbusiness in all fifty states in the United States.\n2) Consideration: On or about the date of this Agreement, Acuity and ASP have entered into the Employment Agreement with Executive. This\nAgreement shall not become effective until the Employment Agreement has been fully executed. As provided in the Employment Agreement, Acuity\nhas made or will make a Restricted Stock Award to Executive, which will vest annually over 3 years commencing one year from the grant date,\nunless earlier vested as provided in Paragraph 4.5 of the Employment Agreement. As consideration for this Agreement, in the event of the Spinoff\nand the effectiveness of this Agreement, a portion of the Restricted Stock shall become vested on the date of the Spinoff, as provided in the\nEmployment Agreement. Acuity and ASP have agreed there is separate consideration for the Employment Agreement between them and Executive.\nIn addition, Acuity is offering Executive employment as President and Chief Executive Officer of ASP in return, in part, for Executive’s agreement\nto execute this Agreement with the Company.\n3\n3) Confidential Information:\na) Company Trade Secrets: Executive shall hold in strictest confidence and shall not use, except for the benefit of Company and ASP, any\ntrade secrets of Company, as that term is defined under applicable law.\nb) Company Confidential Information: During employment with ABL and for two years after the Effective Date, Executive shall hold in\nstrictest confidence and shall not use, except for the benefit of the Company and ASP, any Confidential Information of Company.\n4) Solicitation of Employees: For two years after the Effective Date of this Agreement, Executive will not, directly or indirectly, for himself or on\nbehalf of any other Person, solicit, induce, persuade, or encourage, or attempt to solicit, induce, persuade, or encourage, any employee of the\nCompany to terminate such employee’s position with the Company, whether or not such employee is a full-time or temporary employee of the\nCompany and whether or not such employment is pursuant to a written agreement, for a determined period or at will. This provision shall apply to\nthose employees with whom Executive had material contact or about whom he possessed confidential information during the two-year period before\nthe Effective Date.\n5) Non-Competition: Executive agrees that for two years after the Effective Date, he will not, directly or indirectly, engage in, provide, or perform\nany of the Executive Services on behalf of any Direct ABL Competitor in the Territory. This provision will not prohibit Executive from working for\na Direct ABL Competitor in a product area that is not competitive with ABL’s Business, as defined above.\n6) Non-Solicitation: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit Customers for the purpose of\nproviding goods and services competitive with ABL’s Business. The goods and services currently being offered by ASP are not considered to be\ncompetitive with ABL’s Business, and this provision therefore does not prohibit Executive from soliciting Customers for the purpose of providing\nsuch goods and services on behalf of ASP.\n7) Non-Solicitation of Agencies: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit the lighting agencies, or\nany principal or employee of such lighting agencies (the “Agencies”) through which ABL has sold its products and services within the twelve-month\nperiod before the Effective Date for the purpose of providing goods and services competitive with ABL’s Business. This provision is limited to\nAgencies with whom Executive had material contact or about which Executive had Confidential Information during the twelve-month period\npreceding the date of this Agreement.\n8) Relief: Because any breach of this Agreement by Executive would result in continuing material and irreparable harm to the Company, and\nbecause it would be difficult or impossible to establish the full monetary value of such damage, the Company shall be entitled to injunctive\n4\nrelief in the event of Executive’s breach of this Agreement. Injunctive relief is in addition to any other available remedy. In the event that it shall\nbecome necessary for either party to retain the services of an attorney to enforce any terms under this Agreement, the prevailing party, in addition to\nall other rights and remedies hereunder or as provided by law, shall be entitled to reasonable attorneys’ fees and related court costs and expenses.\n9) Agreement Binding: This Agreement shall inure to the benefit of the Company and its successors and assignees, and shall be binding upon\nExecutive and Executive’s heirs, administrators, executors, and personal representatives.\n10) Nonwaiver: The Company’s failure to insist upon strict performance of any term or to exercise any right shall not be construed as a waiver or a\nrelinquishment for the future of such term or right, which shall continue in full force and effect.\n11) Governing Law; Exclusive Jurisdiction and Venue: This Agreement shall be governed by the laws of the State of Georgia. The Company may\nseek temporary or preliminary injunctive relief against Executive in any court with proper jurisdiction with respect to any and all preliminary\ninjunctive or restraining procedures pertaining to this Agreement or the breach thereof.\n12) Interpretations; Severability: Rights and restrictions in this Agreement may be exercised and are applicable only to the extent they do not\nviolate any applicable laws, and are intended to be limited or modified to the extent necessary so they will not render this Agreement illegal, invalid,\nor unenforceable. If any term shall be held illegal, invalid, or unenforceable by a court of competent jurisdiction, the remaining terms shall remain in\nfull force and effect. This Agreement does not in any way limit the Company’s rights under the laws of unfair competition, trade secret, copyright,\npatent, trademark, or any other applicable law, which are in addition to rights under this Agreement. The existence of a claim by Executive, whether\npredicated on this Agreement or otherwise, shall not constitute a defense to the Company’s enforcement of this Agreement.\n(REMAINDER OF PAGE IS DELIBERATELY LEFT BLANK)\n5\nIN WITNESS WHEREOF, Acuity and ABL have caused this Agreement to be executed by their duly authorized officers and Executive has\nexecuted this Agreement, as of the date first written above.\nACUITY BRANDS, INC.\nBy:\n/s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\nACUITY BRANDS LIGHTING, INC.\nBy:\n/s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\n“Executive”\nBy:\n/s/ John K. Morgan\nName: John K. Morgan\nEmployee Address:\n6	EX-10.(IIT)A(72) 9 dex10iiia72.htm CONFIDENTIALITY AND RESTRICTIVE COVENANTS AGREEMENT\nExhibit 10(iii)A(72)\nEXECUTION COPY\nCONFIDENTIALITY AND\nRESTRICTIVE COVENANTS AGREEMENT\nTHIS AGREEMENT (the “Agreement”) is entered into this 23™ day of July, 2007, between Acuity Brands, Inc. (“Acuity”) and Acuity Brands\nLighting, Inc. f/k/a Acuity Lighting Group, Inc. (“ABL”) (Acuity and ABL are collectively referred to as the “Company”) and John K. Morgan\n(“Executive”).\nReasons for this Agreement: Executive is currently employed as President and Chief Executive Officer of ABL and as an Executive Vice President\nof Acuity pursuant to an amended and restated employment letter agreement dated August 1, 2005 (“Prior Agreement”) between Executive and the\nCompany. Simultaneously herewith, Executive is entering into a further amended and restated employment letter agreement (the “Employment\nAgreement”), which sets forth the terms and conditions of Executive’s employment with Acuity and Executive’s election as President and Chief\nExecutive Officer of Acuity Specialty Products Group, Inc. (“ASP”). Executive and the Company acknowledge that Acuity is contemplating a\ncorporate restructuring of Acuity and a subsequent distribution by Acuity of the stock of ASP (or a successor to ASP’s business and operations) to\nthe stockholders of Acuity (the “Spinoff”). The parties also recognize that the restructuring and Spinoff are subject to final approval of the Board of\nDirectors of Acuity after satisfaction of certain conditions. After the Spinoff, Executive will serve as Chairman, President and Chief Executive\nOfficer of ASP and will cease to be employed by Acuity and ABL.\nAcknowledgements: The Company and Executive agree that during Executive’s relationship with the Company, Executive has learned and has had\naccess to important proprietary information related to ABL’s Business, as defined below. Executive acknowledges that such proprietary information\nis not generally available to the public and includes information about ABL’s customers, systems, operations, finances, suppliers, and business.\nExecutive further acknowledges that such proprietary information has been and was developed through ABL’s expenditure of substantial effort, time\nand money; and together with relationships developed by Executive with customers, employees, and suppliers, could be used to compete unfairly\nwith ABL.\nExecutive acknowledges that during the period of his employment as President and Chief Executive Officer of Acuity Brands Lighting, Inc. and\nExecutive Vice President of Acuity Brands, Inc., he has rendered executive, strategic and managerial services, including the Executive Services, to\nand for Acuity and ABL throughout the United States, which are special, unusual, extraordinary, and of peculiar value to Acuity and ABL. Executive\nfurther acknowledges that the services he performed on behalf of Acuity and ABL, including the Executive Services, were at a senior managerial\nlevel and were not limited in their territorial scope to any particular city, state, or region, but instead had nationwide impact throughout the United\nStates. Executive further acknowledges and agrees that: (a) Acuity and ABL’s business is, at the very least, national in scope; and (b) these\nrestrictions are reasonable and necessary to protect the Confidential Information, business relationships, and goodwill of Acuity and ABL.\nIn consideration for the Company’s agreement to provide the benefits described below, the sufficiency of which is acknowledged, the Company and Executive agree: 1) Definitions: For this Agreement, the following terms shall have the meaning specified below: a)\nb)\nd)\nABL’s Business shall mean the manufacture and/or sale of one or more of the following classes of product: lighting fixtures, electric\nlinear modular lighting systems comprised of plug-in relocatable modular wiring components, emergency lighting fixtures and systems\n(comprised of exit signs, emergency light units, back-up power battery packs, and combinations thereof), electric lighting track units,\ncast aluminum historically styled lighting poles, flexible wiring systems and components (namely, flexible branch circuits, attachment\nplugs, receptacles, connectors and fittings), lighting control systems intended to be used for switching, monitoring, and dimming\nelectrical lighting, the manufacture and sale of all of the above classes of product and includes Confidential Information regarding the\nmanufacture and sale of all of the above classes of product.\nConfidential Information shall mean any information, without regard to form, relating to ABL’s customers, operations, finances, and\nbusiness that derives economic value, actual or potential, from not being generally known to other Persons, including but not limited to\ntechnical or non-technical data, compilations (including compilations of customer information), programs, methods, devices, techniques,\nprocesses, financial data, pricing methodology, formulas, patterns, strategies, studies, business development, software systems,\nmarketing techniques and lists of actual or potential customers (including identifying information about customers), whether or not in\nwriting. Confidential Information includes information disclosed to ABL by third parties that ABL is obligated to maintain as\nconfidential. Confidential Information subject to this Agreement may include information that is not a trade secret under applicable law,\nbut information not constituting a trade secret only shall be treated as Confidential Information under this Agreement for a two-year\nperiod after the Effective Date.\nCustomers shall mean customers of ABL that Executive (i) contacted directly or indirectly or otherwise serviced on behalf of ABL\nduring the two-year period preceding the date of this Agreement; or (ii) about whom Executive possessed Confidential Information\nduring the two-year period preceding the date of this Agreement, including, without limitation, The Home Depot, Consolidated\nElectrical Distributors, Graybar Electric, Rexel Inc., and Sonepar USA.\nDirect ABL Competitor means the following entities: (1) Cooper Lighting, Inc.; (2) Genlyte Thomas Group LLC; (3) Juno Lighting,\nInc. Schneider; (4) Hubbell Lighting, Inc.; (5) Philips, (6) General Electric, (7) Osram Sylvania, (8) Siemens, as well as any of their\nrespective affiliates, subsidiaries and/or parent companies that are either located or transact business within the United States of America,\nbut only to the extent each, and only with respect to the business operation which, engages in the manufacture and/or sale of one or more\nclasses of products competitive with ABL’s Business.\nf)\ng\nh)\nEffective Date shall mean the earlier of (i) the date on which the Spinoff is effective or (ii) November 30, 2007.\nExecutive Services means those principal duties and responsibilities that Executive performed on behalf of Acuity and ABL during his\nemployment, within twenty-four (24) months prior to the date of this Agreement, as President and Chief Executive Officer of ABL and\nExecutive Vice President of Acuity, in which capacity Executive: (1) served as a member of a group of Executives responsible for a\nmulti-profit center organization, with responsibility for the profitability of two or more distinct profit centers; (2) developed, coordinated\nand executed efforts directed towards enhancing branding, marketing, and business development capabilities; (3) worked to develop\nstrategic customers and key channels of distribution; (4) coordinated with departmental heads concerning material business issues;\n(5) analyzed operations to pinpoint opportunities and areas that may have needed to be reorganized, down-sized, or eliminated;\n(6) conferred with other Executives to coordinate and prioritize planning concerning material business issues; (7) studied short-term and\nlong-range economic trends and projects, prospects for future growth in overall sales and market share, opportunities for acquisitions or\nexpansion into new product areas; (8) served as a member of the Acuity Leadership Team, reviewing, discussing, evaluating, and\nparticipating in decisions concerning material business and management issues, cost structures, sales and growth opportunities, crisis\nmanagement, strategic prospects, personnel issues, litigation matters, leadership goals, and performance targets; and (9) provided support\nand analysis for key leadership analysis requirements.\nPerson shall mean any individual, corporation, partnership, association, unincorporated organization or other entity.\nTerritory shall mean the territory of the United States. Executive acknowledges that ABL is licensed to do business and in fact does\nbusiness in all fifty states in the United States.\n2) Consideration: On or about the date of this Agreement, Acuity and ASP have entered into the Employment Agreement with Executive. This Agreement shall not become effective until the Employment Agreement has been fully executed. As provided in the Employment Agreement, Acuity has made or will make a Restricted Stock Award to Executive, which will vest annually over 3 years commencing one year from the grant date, unless earlier vested as provided in Paragraph 4.5 of the Employment Agreement. As consideration for this Agreement, in the event of the Spinoff and the effectiveness of this Agreement, a portion of the Restricted Stock shall become vested on the date of the Spinoff, as provided in the Employment Agreement. Acuity and ASP have agreed there is separate consideration for the Employment Agreement between them and Executive. In addition, Acuity is offering Executive employment as President and Chief Executive Officer of ASP in return, in part, for Executive’s agreement to execute this Agreement with the Company.\f3) Confidential Information:\na) Company Trade Secrets: Executive shall hold in strictest confidence and shall not use, except for the benefit of Company and ASP, any\ntrade secrets of Company, as that term is defined under applicable law.\nb) Company Confidential Information: During employment with ABL and for two years after the Effective Date, Executive shall hold in\nstrictest confidence and shall not use, except for the benefit of the Company and ASP, any Confidential Information of Company.\n4) Solicitation of Employees: For two years after the Effective Date of this Agreement, Executive will not, directly or indirectly, for himself or on\nbehalf of any other Person, solicit, induce, persuade, or encourage, or attempt to solicit, induce, persuade, or encourage, any employee of the\nCompany to terminate such employee’s position with the Company, whether or not such employee is a full-time or temporary employee of the\nCompany and whether or not such employment is pursuant to a written agreement, for a determined period or at will. This provision shall apply to\nthose employees with whom Executive had material contact or about whom he possessed confidential information during the two-year period before\nthe Effective Date.\n5) Non-Competition: Executive agrees that for two years after the Effective Date, he will not, directly or indirectly, engage in, provide, or perform\nany of the Executive Services on behalf of any Direct ABL Competitor in the Territory. This provision will not prohibit Executive from working for\na Direct ABL Competitor in a product area that is not competitive with ABL’s Business, as defined above.\n6) Non-Solicitation: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit Customers for the purpose of\nproviding goods and services competitive with ABL’s Business. The goods and services currently being offered by ASP are not considered to be\ncompetitive with ABL’s Business, and this provision therefore does not prohibit Executive from soliciting Customers for the purpose of providing\nsuch goods and services on behalf of ASP.\n7) Non-Solicitation of Agencies: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit the lighting agencies, or\nany principal or employee of such lighting agencies (the “Agencies”) through which ABL has sold its products and services within the twelve-month\nperiod before the Effective Date for the purpose of providing goods and services competitive with ABL’s Business. This provision is limited to\nAgencies with whom Executive had material contact or about which Executive had Confidential Information during the twelve-month period\npreceding the date of this Agreement.\n8) Relief: Because any breach of this Agreement by Executive would result in continuing material and irreparable harm to the Company, and\nbecause it would be difficult or impossible to establish the full monetary value of such damage, the Company shall be entitled to injunctive\n4\nrelief in the event of Executive’s breach of this Agreement. Injunctive relief is in addition to any other available remedy. In the event that it shall\nbecome necessary for either party to retain the services of an attorney to enforce any terms under this Agreement, the prevailing party, in addition to\nall other rights and remedies hereunder or as provided by law, shall be entitled to reasonable attorneys’ fees and related court costs and expenses.\n9) Agreement Binding: This Agreement shall inure to the benefit of the Company and its successors and assignees, and shall be binding upon\nExecutive and Executive’s heirs, administrators, executors, and personal representatives.\n10) Nonwaiver: The Company’s failure to insist upon strict performance of any term or to exercise any right shall not be construed as a waiver or a\nrelinquishment for the future of such term or right, which shall continue in full force and effect.\n11) Governing Law; Exclusive Jurisdiction and Venue: This Agreement shall be governed by the laws of the State of Georgia. The Company may\nseek temporary or preliminary injunctive relief against Executive in any court with proper jurisdiction with respect to any and all preliminary\ninjunctive or restraining procedures pertaining to this Agreement or the breach thereof.\n12) Interpretations; Severability: Rights and restrictions in this Agreement may be exercised and are applicable only to the extent they do not\nviolate any applicable laws, and are intended to be limited or modified to the extent necessary so they will not render this Agreement illegal, invalid,\nor unenforceable. If any term shall be held illegal, invalid, or unenforceable by a court of competent jurisdiction, the remaining terms shall remain in\nfull force and effect. This Agreement does not in any way limit the Company’s rights under the laws of unfair competition, trade secret, copyright,\npatent, trademark, or any other applicable law, which are in addition to rights under this Agreement. The existence of a claim by Executive, whether\npredicated on this Agreement or otherwise, shall not constitute a defense to the Company’s enforcement of this Agreement.\n(REMAINDER OF PAGE IS DELIBERATELY LEFT BLANK)\nIN WITNESS WHEREOF, Acuity and ABL have caused this Agreement to be executed by their duly authorized officers and Executive has\nexecuted this Agreement, as of the date first written above.\nACUITY BRANDS, INC.\nBy: /s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\nACUITY BRANDS LIGHTING, INC.\nBy: /s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\n“Executive”\nBy: /s/ John K. Morgan\nName: John K. Morgan\nEmployee Address:	EX-10.(III)A(72) 9 dex10iiia72.htm CONFIDENTIALITY AND RESTRICTIVE COVENANTS AGREEMENT\nExhibit 10(iii)A(72)\nEXECUTION COPY\nCONFIDENTIALITY AND\nRESTRICTIVE COVENANTS AGREEMENT\nTHIS AGREEMENT (the "Agreement") is entered into this 23rd day of July, 2007, between Acuity Brands, Inc. ("Acuity") and Acuity Brands\nLighting, Inc. f/k/a Acuity Lighting Group, Inc. ("ABL") (Acuity and ABL are collectively referred to as the "Company") and John K. Morgan\n("Executive").\nReasons for this Agreement: Executive is currently employed as President and Chief Executive Officer of ABL and as an Executive Vice President\nof Acuity pursuant to an amended and restated employment letter agreement dated August 1, 2005 ("Prior Agreement") between Executive and the\nCompany. Simultaneously herewith, Executive is entering into a further amended and restated employment letter agreement (the "Employment\nAgreement"), which sets forth the terms and conditions of Executive's employment with Acuity and Executive's election as President and Chief\nExecutive Officer of Acuity Specialty Products Group, Inc. ("ASP"). Executive and the Company acknowledge that Acuity is contemplating a\ncorporate restructuring of Acuity and a subsequent distribution by Acuity of the stock of ASP (or a successor to ASP's business and operations) to\nthe\nstockholders of Acuity (the "Spinoff"). The parties also recognize that the restructuring and Spinoff are subject to final approval of the Board of\nDirectors of Acuity after satisfaction of certain conditions. After the Spinoff, Executive will serve as Chairman, President and Chief Executive\nOfficer of ASP and will cease to be employed by Acuity and ABL.\nAcknowledgements: The Company and Executive agree that during Executive's relationship with the Company, Executive has learned and has had\naccess to important proprietary information related to ABL's Business, as defined below. Executive acknowledges that such proprietary information\nis not generally available to the public and includes information about ABL's customers, systems, operations, finances, suppliers, and business.\nExecutive further acknowledges that such proprietary information has been and was developed through ABL's expenditure of substantial effort, time\nand money; and together with relationships developed by Executive with customers, employees, and suppliers, could be used to compete unfairly\nwith ABL.\nExecutive acknowledges that during the period of his employment as President and Chief Executive Officer of Acuity Brands Lighting, Inc. and\nExecutive Vice President of Acuity Brands, Inc., he has rendered executive, strategic and managerial services, including the Executive Services,\nto\nand for Acuity and ABL throughout the United States, which are special, unusual, extraordinary, and of peculiar value to Acuity and ABL. Executive\nfurther acknowledges that the services he performed on behalf of Acuity and ABL, including the Executive Services, were at a senior managerial\nlevel\nand\nwere\nnot\nlimited\nin\ntheir\nterritorial\nscope\nto\nany\nparticular\ncity,\nstate,\nor\nregion,\nbut\ninstead\nhad\nnationwide\nimpact\nthroughout\nthe\nUnited\nStates. Executive further acknowledges and agrees that: (a) Acuity and ABL's business is, at the very least, national in scope; and (b) these\nrestrictions are reasonable and necessary to protect the Confidential Information, business relationships, and goodwill of Acuity and ABL.\nIn consideration for the Company's agreement to provide the benefits described below, the sufficiency of which is acknowledged, the Company and\nExecutive agree:\n1) Definitions: For this Agreement, the following terms shall have the meaning specified below:\na)\nABL's Business shall mean the manufacture and/or sale of one or more of the following classes of product: lighting fixtures, electric\nlinear modular lighting systems comprised of plug-in relocatable modular wiring components, emergency lighting fixtures\nand\nsystems\n(comprised of exit signs, emergency light units, back-up power battery packs, and combinations thereof), electric lighting track units,\ncast aluminum historically styled lighting poles, flexible wiring systems and components (namely, flexible branch circuits, attachment\nplugs, receptacles, connectors and fittings), lighting control systems intended to be used for switching, monitoring, and dimming\nelectrical lighting, the manufacture and sale of all of the above classes of product and includes Confidential Information regarding the\nmanufacture and sale of all of the above classes of product.\nb) Confidential Information shall mean any information, without regard to form, relating to ABL's customers, operations, finances, and\nbusiness that derives economic value, actual or potential, from not being generally known to other Persons, including but not limited to\ntechnical or non-technical data, compilations (including compilations of customer information), programs, methods, devices, techniques,\nprocesses, financial data, pricing methodology, formulas, patterns, strategies, studies, business development, software systems,\nmarketing techniques and lists of actua or potential customers (including identifying information about customers), whether or not\nin\nwriting. Confidential Information includes information disclosed to ABL by third parties that ABL is obligated to maintain as\nconfidential. Confidential Information subject to this Agreement may include information that is not a trade secret under applicable law,\nbut information not constituting a trade secret only shall be treated as Confidential Information under this Agreement for a two-year\nperiod after the Effective Date.\nc)\nCustomers shall mean customers of ABL that Executive (i) contacted directly or indirectly or otherwise serviced on behalf of ABL\nduring the two-year period preceding the date of this Agreement; or (ii) about whom Executive possessed Confidential Information\nduring the two-year period preceding the date of this Agreement, including, without limitation, The Home Depot, Consolidated\nElectrical Distributors, Graybar Electric, Rexel Inc., and Sonepar USA.\nd)\nDirect ABL Competitor means the following entities: (1) Cooper Lighting, Inc.; (2) Genlyte Thomas Group LLC; (3) Juno Lighting,\nInc. Schneider; (4) Hubbell Lighting, Inc.; (5) Philips, (6) General Electric, (7) Osram Sylvania, (8) Siemens, as well as any of their\nrespective affiliates, subsidiaries and/or parent companies that are either located or transact business within the United States of America,\nbut only to the extent each, and only with respect to the business operation which, engages in the manufacture and/or sale of one or more\nclasses of products competitive with ABL's Business.\n2\ne)\nEffective Date shall mean the earlier of (i) the date on which the Spinoff is effective or (ii) November 30, 2007.\nf)\nExecutive Services means those principal duties and responsibilities that Executive performed on behalf of Acuity and ABL during his\nemployment, within twenty-four (24) months prior to the date of this Agreement, as President and Chief Executive Officer of ABL and\nExecutive Vice President of Acuity, in which capacity Executive: (1) served as a member of a group of Executives responsible for a\nmulti-profit center organization, with responsibility for the profitability of two or more distinct profit centers; (2) developed, coordinated\nand executed efforts directed towards enhancing branding, marketing, and business development capabilities; (3) worked to develop\nstrategic customers and key channels of distribution; (4) coordinated with departmental heads concerning material business issues;\n(5) analyzed operations to pinpoint opportunities and areas that may have needed to be reorganized, down-sized, or eliminated;\n(6) conferred with other Executives to coordinate and prioritize planning concerning material business issues; (7) studied short-term and\nlong-range economic trends and projects, prospects for future growth in overall sales and market share, opportunities for acquisitions or\nexpansion into new product areas; (8) served as a member of the Acuity Leadership Team, reviewing, discussing, evaluating, and\nparticipating in decisions concerning material business and management issues, cost structures, sales and growth opportunities, crisis\nmanagement, strategic prospects, personnel issues, litigation matters, leadership goals, and performance targets; and (9) provided support\nand analysis for key leadership analysis requirements.\ng)\nPerson shall mean any individual, corporation, partnership, association, unincorporated organization or other entity.\nh) Territory shall mean the territory of the United States. Executive acknowledges that ABL is licensed to do business and in fact does\nbusiness in all fifty states in the United States.\n2) Consideration: On or about the date of this Agreement, Acuity and ASP have entered into the Employment Agreement with Executive. This\nAgreement shall not become effective until the Employment Agreement has been fully executed. As provided in the Employment Agreement, Acuity\nhas made or will make a Restricted Stock Award to Executive, which will vest annually over 3 years commencing one year from the grant date,\nunless earlier vested as provided in Paragraph 4.5 of the Employment Agreement. As consideration for this Agreement, in the event of the Spinoff\nand the effectiveness of this Agreement, a portion of the Restricted Stock shall become vested on the date of the Spinoff, as provided in the\nEmployment Agreement. Acuity and ASP have agreed there is separate consideration for the Employment Agreement between them and Executive.\nIn addition, Acuity is offering Executive employment as President and Chief Executive Officer of ASP in return, in part, for Executive's agreement\nto execute this Agreement with the Company.\n3\n3) Confidential Information:\na)\nCompany Trade Secrets: Executive shall hold in strictest confidence and shall not use, except for the benefit of Company and ASP, any\ntrade secrets of Company, as that term is defined under applicable law.\nb) Company Confidential Information: During employment with ABL and for two years after the Effective Date, Executive shall hold in\nstrictest confidence and shall not use, except for the benefit of the Company and ASP, any Confidential Information of Company.\n4) Solicitation of Employees: For two years after the Effective Date of this Agreement, Executive will not, directly or indirectly, for himself or on\nbehalf of any other Person, solicit, induce, persuade, or encourage, or attempt to solicit, induce, persuade, or encourage, any employee of the\nCompany to terminate such employee's position with the Company, whether or not such employee is a full-time or temporary employee of the\nCompany and whether or not such employment is pursuant to a written agreement, for a determined period or at will. This provision shall apply to\nthose employees with whom Executive had material contact or about whom he possessed confidential information during the two-year period before\nthe Effective Date.\n5) Non-Competition: Executive agrees that for two years after the Effective Date, he will not, directly or indirectly, engage in, provide, or perform\nany of the Executive Services on behalf of any Direct ABL Competitor in the Territory. This provision will not prohibit Executive from working for\na Direct ABL Competitor in a product area that is not competitive with ABL's Business, as defined above.\n6) Non-Solicitation: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit Customers for the purpose of\nproviding goods and services competitive with ABL's Business. The goods and services currently being offered by ASP are not considered to be\ncompetitive with ABL's Business, and this provision therefore does not prohibit Executive from soliciting Customers for the purpose of providing\nsuch goods and services on behalf of ASP.\n7) Non-Solicitation of Agencies: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit the lighting agencies, or\nany principal or employee of such lighting agencies (the "Agencies") through which ABL has sold its products and services within the twelve-month\nperiod before the Effective Date for the purpose of providing goods and services competitive with ABL's Business. This provision is limited to\nAgencies with whom Executive had material contact or about which Executive had Confidential Information during the twelve-month period\npreceding the date of this Agreement.\n8)\nRelief: Because any breach of this Agreement by Executive would result in continuing material and irreparable harm to the Company, and\nbecause it would be difficult or impossible to establish the full monetary value of such damage, the Company shall be entitled to injunctive\n4\nrelief in the event of Executive's breach of this Agreement. Injunctive relief is in addition to any other available remedy. In the event that it shall\nbecome necessary for either party to retain the services of an attorney to enforce any terms under this Agreement, the prevailing party, in addition\nto\nall other rights and remedies hereunder or as provided by law, shall be entitled to reasonable attorneys' fees and related court costs and expenses.\n9) Agreement Binding: This Agreement shall inure to the benefit of the Company and its successors and assignees, and shall be binding upon\nExecutive and Executive's heirs, administrators, executors, and personal representatives.\n10) Nonwaiver: The Company's failure to insist upon strict performance of any term or to exercise any right shall not be construed as a waiver or\na\nrelinquishment for the future of such term or right, which shall continue in full force and effect.\n11)\nGoverning Law; Exclusive Jurisdiction and Venue: This Agreement shall be governed by the laws of the State of Georgia. The Company may\nseek temporary or preliminary injunctive relief against Executive in any court with proper jurisdiction with respect to any and all preliminary\ninjunctive or restraining procedures pertaining to this Agreement or the breach thereof.\n12) Interpretations; Severability: Rights and restrictions in this Agreement may be exercised and are applicable only to the extent they do not\nviolate any applicable laws, and are intended to be limited or modified to the extent necessary so they will not render this Agreement illegal, invalid,\nor unenforceable. If any term shall be held illegal, invalid, or unenforceable by a court of competent jurisdiction, the remaining terms shall remain\nin\nfull force and effect. This Agreement does not in any way limit the Company's rights under the laws of unfair competition, trade secret, copyright,\npatent, trademark, or any other applicable law, which are in addition to rights under this Agreement. The existence of a claim by Executive, whether\npredicated on this Agreement or otherwise, shall not constitute a defense to the Company's enforcement of this Agreement.\n(REMAINDER OF PAGE IS DELIBERATELY LEFT BLANK)\n5\nIN WITNESS WHEREOF, Acuity and ABL have caused this Agreement to be executed by their duly authorized officers and Executive has\nexecuted this Agreement, as of the date first written above.\nACUITY BRANDS, INC.\nBy:\n/s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\nACUITY BRANDS LIGHTING, INC.\nBy:\n/s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\n"Executive"\nBy:\n/s/ John K. Morgan\nName: John K. Morgan\nEmployee Address:\n6	EX-10.(III)A(72) 9 dex10iiia72.htm CONFIDENTIALITY AND RESTRICTIVE COVENANTS AGREEMENT\nExhibit 10(iii)A(72)\nEXECUTION COPY\nCONFIDENTIALITY AND\nRESTRICTIVE COVENANTS AGREEMENT\nTHIS AGREEMENT (the “Agreement”) is entered into this 23rd day of July, 2007, between Acuity Brands, Inc. (“Acuity”) and Acuity Brands\nLighting, Inc. f/k/a Acuity Lighting Group, Inc. (“ABL”) (Acuity and ABL are collectively referred to as the “Company”) and John K. Morgan\n(“Executive”).\nReasons for this Agreement: Executive is currently employed as President and Chief Executive Officer of ABL and as an Executive Vice President\nof Acuity pursuant to an amended and restated employment letter agreement dated August 1, 2005 (“Prior Agreement”) between Executive and the\nCompany. Simultaneously herewith, Executive is entering into a further amended and restated employment letter agreement (the “Employment\nAgreement”), which sets forth the terms and conditions of Executive’s employment with Acuity and Executive’s election as President and Chief\nExecutive Officer of Acuity Specialty Products Group, Inc. (“ASP”). Executive and the Company acknowledge that Acuity is contemplating a\ncorporate restructuring of Acuity and a subsequent distribution by Acuity of the stock of ASP (or a successor to ASP’s business and operations) to\nthe stockholders of Acuity (the “Spinoff”). The parties also recognize that the restructuring and Spinoff are subject to final approval of the Board of\nDirectors of Acuity after satisfaction of certain conditions. After the Spinoff, Executive will serve as Chairman, President and Chief Executive\nOfficer of ASP and will cease to be employed by Acuity and ABL.\nAcknowledgements: The Company and Executive agree that during Executive’s relationship with the Company, Executive has learned and has had\naccess to important proprietary information related to ABL’s Business, as defined below. Executive acknowledges that such proprietary information\nis not generally available to the public and includes information about ABL’s customers, systems, operations, finances, suppliers, and business.\nExecutive further acknowledges that such proprietary information has been and was developed through ABL’s expenditure of substantial effort, time\nand money; and together with relationships developed by Executive with customers, employees, and suppliers, could be used to compete unfairly\nwith ABL.\nExecutive acknowledges that during the period of his employment as President and Chief Executive Officer of Acuity Brands Lighting, Inc. and\nExecutive Vice President of Acuity Brands, Inc., he has rendered executive, strategic and managerial services, including the Executive Services, to\nand for Acuity and ABL throughout the United States, which are special, unusual, extraordinary, and of peculiar value to Acuity and ABL. Executive\nfurther acknowledges that the services he performed on behalf of Acuity and ABL, including the Executive Services, were at a senior managerial\nlevel and were not limited in their territorial scope to any particular city, state, or region, but instead had nationwide impact throughout the United\nStates. Executive further acknowledges and agrees that: (a) Acuity and ABL’s business is, at the very least, national in scope; and (b) these\nrestrictions are reasonable and necessary to protect the Confidential Information, business relationships, and goodwill of Acuity and ABL.\nIn consideration for the Company’s agreement to provide the benefits described below, the sufficiency of which is acknowledged, the Company and\nExecutive agree:\n1) Definitions: For this Agreement, the following terms shall have the meaning specified below:\na) ABL’s Business shall mean the manufacture and/or sale of one or more of the following classes of product: lighting fixtures, electric\nlinear modular lighting systems comprised of plug-in relocatable modular wiring components, emergency lighting fixtures and systems\n(comprised of exit signs, emergency light units, back-up power battery packs, and combinations thereof), electric lighting track units,\ncast aluminum historically styled lighting poles, flexible wiring systems and components (namely, flexible branch circuits, attachment\nplugs, receptacles, connectors and fittings), lighting control systems intended to be used for switching, monitoring, and dimming\nelectrical lighting, the manufacture and sale of all of the above classes of product and includes Confidential Information regarding the\nmanufacture and sale of all of the above classes of product.\nb) Confidential Information shall mean any information, without regard to form, relating to ABL’s customers, operations, finances, and\nbusiness that derives economic value, actual or potential, from not being generally known to other Persons, including but not limited to\ntechnical or non-technical data, compilations (including compilations of customer information), programs, methods, devices, techniques,\nprocesses, financial data, pricing methodology, formulas, patterns, strategies, studies, business development, software systems,\nmarketing techniques and lists of actual or potential customers (including identifying information about customers), whether or not in\nwriting. Confidential Information includes information disclosed to ABL by third parties that ABL is obligated to maintain as\nconfidential. Confidential Information subject to this Agreement may include information that is not a trade secret under applicable law,\nbut information not constituting a trade secret only shall be treated as Confidential Information under this Agreement for a two-year\nperiod after the Effective Date.\nc) Customers shall mean customers of ABL that Executive (i) contacted directly or indirectly or otherwise serviced on behalf of ABL\nduring the two-year period preceding the date of this Agreement; or (ii) about whom Executive possessed Confidential Information\nduring the two-year period preceding the date of this Agreement, including, without limitation, The Home Depot, Consolidated\nElectrical Distributors, Graybar Electric, Rexel Inc., and Sonepar USA.\nd) Direct ABL Competitor means the following entities: (1) Cooper Lighting, Inc.; (2) Genlyte Thomas Group LLC; (3) Juno Lighting,\nInc. Schneider; (4) Hubbell Lighting, Inc.; (5) Philips, (6) General Electric, (7) Osram Sylvania, (8) Siemens, as well as any of their\nrespective affiliates, subsidiaries and/or parent companies that are either located or transact business within the United States of America,\nbut only to the extent each, and only with respect to the business operation which, engages in the manufacture and/or sale of one or more\nclasses of products competitive with ABL’s Business.\n2\ne) Effective Date shall mean the earlier of (i) the date on which the Spinoff is effective or (ii) November 30, 2007.\nf) Executive Services means those principal duties and responsibilities that Executive performed on behalf of Acuity and ABL during his\nemployment, within twenty-four (24) months prior to the date of this Agreement, as President and Chief Executive Officer of ABL and\nExecutive Vice President of Acuity, in which capacity Executive: (1) served as a member of a group of Executives responsible for a\nmulti-profit center organization, with responsibility for the profitability of two or more distinct profit centers; (2) developed, coordinated\nand executed efforts directed towards enhancing branding, marketing, and business development capabilities; (3) worked to develop\nstrategic customers and key channels of distribution; (4) coordinated with departmental heads concerning material business issues;\n(5) analyzed operations to pinpoint opportunities and areas that may have needed to be reorganized, down-sized, or eliminated;\n(6) conferred with other Executives to coordinate and prioritize planning concerning material business issues; (7) studied short-term and\nlong-range economic trends and projects, prospects for future growth in overall sales and market share, opportunities for acquisitions or\nexpansion into new product areas; (8) served as a member of the Acuity Leadership Team, reviewing, discussing, evaluating, and\nparticipating in decisions concerning material business and management issues, cost structures, sales and growth opportunities, crisis\nmanagement, strategic prospects, personnel issues, litigation matters, leadership goals, and performance targets; and (9) provided support\nand analysis for key leadership analysis requirements.\ng) Person shall mean any individual, corporation, partnership, association, unincorporated organization or other entity.\nh) Territory shall mean the territory of the United States. Executive acknowledges that ABL is licensed to do business and in fact does\nbusiness in all fifty states in the United States.\n2) Consideration: On or about the date of this Agreement, Acuity and ASP have entered into the Employment Agreement with Executive. This\nAgreement shall not become effective until the Employment Agreement has been fully executed. As provided in the Employment Agreement, Acuity\nhas made or will make a Restricted Stock Award to Executive, which will vest annually over 3 years commencing one year from the grant date,\nunless earlier vested as provided in Paragraph 4.5 of the Employment Agreement. As consideration for this Agreement, in the event of the Spinoff\nand the effectiveness of this Agreement, a portion of the Restricted Stock shall become vested on the date of the Spinoff, as provided in the\nEmployment Agreement. Acuity and ASP have agreed there is separate consideration for the Employment Agreement between them and Executive.\nIn addition, Acuity is offering Executive employment as President and Chief Executive Officer of ASP in return, in part, for Executive’s agreement\nto execute this Agreement with the Company.\n3\n3) Confidential Information:\na) Company Trade Secrets: Executive shall hold in strictest confidence and shall not use, except for the benefit of Company and ASP, any\ntrade secrets of Company, as that term is defined under applicable law.\nb) Company Confidential Information: During employment with ABL and for two years after the Effective Date, Executive shall hold in\nstrictest confidence and shall not use, except for the benefit of the Company and ASP, any Confidential Information of Company.\n4) Solicitation of Employees: For two years after the Effective Date of this Agreement, Executive will not, directly or indirectly, for himself or on\nbehalf of any other Person, solicit, induce, persuade, or encourage, or attempt to solicit, induce, persuade, or encourage, any employee of the\nCompany to terminate such employee’s position with the Company, whether or not such employee is a full-time or temporary employee of the\nCompany and whether or not such employment is pursuant to a written agreement, for a determined period or at will. This provision shall apply to\nthose employees with whom Executive had material contact or about whom he possessed confidential information during the two-year period before\nthe Effective Date.\n5) Non-Competition: Executive agrees that for two years after the Effective Date, he will not, directly or indirectly, engage in, provide, or perform\nany of the Executive Services on behalf of any Direct ABL Competitor in the Territory. This provision will not prohibit Executive from working for\na Direct ABL Competitor in a product area that is not competitive with ABL’s Business, as defined above.\n6) Non-Solicitation: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit Customers for the purpose of\nproviding goods and services competitive with ABL’s Business. The goods and services currently being offered by ASP are not considered to be\ncompetitive with ABL’s Business, and this provision therefore does not prohibit Executive from soliciting Customers for the purpose of providing\nsuch goods and services on behalf of ASP.\n7) Non-Solicitation of Agencies: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit the lighting agencies, or\nany principal or employee of such lighting agencies (the “Agencies”) through which ABL has sold its products and services within the twelve-month\nperiod before the Effective Date for the purpose of providing goods and services competitive with ABL’s Business. This provision is limited to\nAgencies with whom Executive had material contact or about which Executive had Confidential Information during the twelve-month period\npreceding the date of this Agreement.\n8) Relief: Because any breach of this Agreement by Executive would result in continuing material and irreparable harm to the Company, and\nbecause it would be difficult or impossible to establish the full monetary value of such damage, the Company shall be entitled to injunctive\n4\nrelief in the event of Executive’s breach of this Agreement. Injunctive relief is in addition to any other available remedy. In the event that it shall\nbecome necessary for either party to retain the services of an attorney to enforce any terms under this Agreement, the prevailing party, in addition to\nall other rights and remedies hereunder or as provided by law, shall be entitled to reasonable attorneys’ fees and related court costs and expenses.\n9) Agreement Binding: This Agreement shall inure to the benefit of the Company and its successors and assignees, and shall be binding upon\nExecutive and Executive’s heirs, administrators, executors, and personal representatives.\n10) Nonwaiver: The Company’s failure to insist upon strict performance of any term or to exercise any right shall not be construed as a waiver or a\nrelinquishment for the future of such term or right, which shall continue in full force and effect.\n11) Governing Law; Exclusive Jurisdiction and Venue: This Agreement shall be governed by the laws of the State of Georgia. The Company may\nseek temporary or preliminary injunctive relief against Executive in any court with proper jurisdiction with respect to any and all preliminary\ninjunctive or restraining procedures pertaining to this Agreement or the breach thereof.\n12) Interpretations; Severability: Rights and restrictions in this Agreement may be exercised and are applicable only to the extent they do not\nviolate any applicable laws, and are intended to be limited or modified to the extent necessary so they will not render this Agreement illegal, invalid,\nor unenforceable. If any term shall be held illegal, invalid, or unenforceable by a court of competent jurisdiction, the remaining terms shall remain in\nfull force and effect. This Agreement does not in any way limit the Company’s rights under the laws of unfair competition, trade secret, copyright,\npatent, trademark, or any other applicable law, which are in addition to rights under this Agreement. The existence of a claim by Executive, whether\npredicated on this Agreement or otherwise, shall not constitute a defense to the Company’s enforcement of this Agreement.\n(REMAINDER OF PAGE IS DELIBERATELY LEFT BLANK)\n5\nIN WITNESS WHEREOF, Acuity and ABL have caused this Agreement to be executed by their duly authorized officers and Executive has\nexecuted this Agreement, as of the date first written above.\nACUITY BRANDS, INC.\nBy:\n/s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\nACUITY BRANDS LIGHTING, INC.\nBy:\n/s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\n“Executive”\nBy:\n/s/ John K. Morgan\nName: John K. Morgan\nEmployee Address:\n6
e22152ac3ddc7cd28500eb43f77c022a.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 8 d923647dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place\nof business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a\ncompany having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates\n“Borderfree”).\nThe parties hereto agree as follows:\n1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the\npotential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain\nConfidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party\n(the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing\nParty has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary\ninterest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans,\ndiscoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business,\nmarketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product\ninformation, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other\ncommunications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses,\ncompilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect\nany of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable\ndescription) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations,\nforecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection\nwith their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any\ninformation referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-\nconfidential.\n2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the\nDisclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the\nReceiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential\nInformation on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without\nlimitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and\naccountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the\nTransaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in\nthis Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential\nInformation exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that\ndiscussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms,\nconditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status\nthereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as\n“Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its\nRepresentatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a\nparty may have against the other party’s Representatives with respect to such breach).\n3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or\nbecomes available to the Receiving Party\non a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party\nto be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or\nits Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently\ndeveloped by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the\nConfidential Information.\n4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all\ncommunications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings,\nand (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one\nor more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI\nContacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any\ncommunications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and\nterms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this\nAgreement (the “Borderfree Contacts”).\n5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event\nthe Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a\nregulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing\nParty’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the\nextent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding\nsuch External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other\nappropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained,\nunless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be,\nmay disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by\ncounsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by\ncounsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s\nexpense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential\nInformation or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of\nConfidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this\nAgreement.\n6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed\nwith the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of\nthe Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in\nthe Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses;\nprovided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party\nin the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup\ntapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided\nfurther that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this\nAgreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The\nReceiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized\nRepresentatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will\ncontinue to be bound by its and their obligations under this Agreement.\n7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an\nobligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for\nthe use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a\nwritten agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been\nexecuted, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind\nwhatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or\noral expression with respect to the Transaction, or otherwise.\n8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be\ncompetitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the\nacknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall\nprevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used\nonly for the purpose of this Transaction and in no event shall be provided to any of such companies.\n9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any\nUnited States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or\npartnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks,\nlogos or designs for any purpose, without the other party’s prior written permission.\n10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement\nfor the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any\nliability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions\ntherefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it\nwill be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below),\nsubject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with\nrespect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction,\nsubject only to such conditions to closing as may be negotiated between the parties, and does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid.\n11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly\nor indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the\nDisclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation\nof the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the\nReceiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries\nor their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who\nresponds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of\nthis Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee\nof the Disclosing Party or its subsidiaries.\n12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so,\nneither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer,\npurchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization,\nrestructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any\nsecurities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a\nmajority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose\nor seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person\nas a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or\nindirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative\nform) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action\nthat could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business\nCombination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement\nby the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination.\nNotwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential,\nnon-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or\ninvolving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof.\n13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive,\nand use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity.\n14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight\ncarrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the\naddresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree\nshall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General\nCounsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate\nDevelopment & Strategy with a copy to: Attention: Office of the General Counsel.\n15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with\nrespect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may\ninadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will\nimmediately destroy or return any such Confidential Information and other materials.\n16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the\nparties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure\nprovision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this\nAgreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning\nthe subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved\nin writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this\nAgreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed\ninvalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way\nbe affected or impaired thereby.\n17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly\nexecuted by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the\nother party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their\nsuccessors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement\nbinding on both parties.\n18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in\nthat State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with\nrespect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine\nor to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with\nprocess at its address set forth on the first page hereof.\n19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this\nAgreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the\nDisclosing Party.\n20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that\nit is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United\nStates and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information\nand such laws prohibit the communication of such information to any other person when it is reasonably foreseeable that such other person\nis likely to purchase or sell such securities in reliance upon such information. The Disclosing Party acknowledges that it is not acting as an\nadvisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United\nStates Treas. Reg. Section 1.6011 -4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or\nexclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States\nfederal tax treatment or tax structure of the Transaction.\n21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right,\npower or privilege.\n22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any\nobligation to the other party under this Agreement.\nIN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement.\nPITNEY BOWES INC.\nBORDERFREE, INC.\nBy:\n/s/ Jeff Brennan\n(sign) By:\n/s/ Michael DeSimone\n(sign)\nName: Jeff Brennan\nName: Michael DeSimone\nTitle: VP, Corporate Development & Strategy\nTitle: Chief Executive Officer\n[Signature Page to Non-Disclosure Agreement]\nEXHIBIT A\nBorderfree Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nDean Gels\nVice President, Corporate Development\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299 .3563\nEmail: dean.gels@borderfree.com\nEd Neumann\nChief Financial Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299 .3528\nEmail: ed.neumann@borderfree.com\nMichael DeSimone\nChief Executive Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299 .3586\nEmail: mike@borderfree.com\nPBI Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nRonny B. Iversen\nCorporate Development\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.6422\nE-mail: Ronny.Iversen@pb.com\nJeff Brennan\nVice President, Corporate Development & Strategy\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.7566\nE-mail: Jeff.Brennan@pb.com	EX-99.(D)(2) 8 d923647dex99d2.htm CONFIDENTIALITY AGREEMENT Exhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place\nof business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the\npotential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain\nConfidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party\n(the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing\nParty has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary\ninterest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans,\ndiscoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business,\nmarketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product\ninformation, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other\ncommunications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses,\ncompilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect\nany of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable\ndescription) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations,\nforecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection\nwith their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any\ninformation referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-\nconfidential.\nFor a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the\nDisclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the\nReceiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential\nInformation on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without\nlimitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and\naccountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the\nTransaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in\nthis Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential\nInformation exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that\ndiscussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms,\nconditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status\nthereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as\n“Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its\nRepresentatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a\nparty may have against the other party’s Representatives with respect to such breach).\nThe term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or\nbecomes available to the Receiving Party\non a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party\nto be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or\nits Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently\ndeveloped by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the\nConfidential Information.\nUnless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all\ncommunications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings,\nand (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one\nor more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI\nContacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any\ncommunications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and\nterms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this\nAgreement (the “Borderfree Contacts™).\nNotwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event\nthe Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a\nregulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing\nParty’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the\nextent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding\nsuch External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other\nappropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained,\nunless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be,\nmay disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by\ncounsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by\ncounsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s\nexpense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential\nInformation or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of\nConfidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this\nAgreement.\nConfidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed\nwith the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of\nthe Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in\nthe Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses;\nprovided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party\nin the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup\ntapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided\nfurther that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this\nAgreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The\nReceiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized\nRepresentatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will\ncontinue to be bound by its and their obligations under this Agreement.\n10. 11. 12. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an\nobligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for\nthe use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a\nwritten agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been\nexecuted, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind\nwhatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or\noral expression with respect to the Transaction, or otherwise.\nEach party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be\ncompetitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the\nacknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall\nprevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used\nonly for the purpose of this Transaction and in no event shall be provided to any of such companies.\nDisclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any\nUnited States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or\npartnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks,\nlogos or designs for any purpose, without the other party’s prior written permission.\nThe Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement\nfor the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any\nliability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions\ntherefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it\nwill be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below),\nsubject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with\nrespect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction,\nsubject only to such conditions to closing as may be negotiated between the parties, and does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid.\nEach party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly\nor indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the\nDisclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation\nof the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the\nReceiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries\nor their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who\nresponds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of\nthis Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee\nof the Disclosing Party or its subsidiaries.\nEach party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so,\nneither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer,\npurchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization,\n13. 14. 15. 16. restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any\nsecurities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a\nmajority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose\nor seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person\nas a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or\nindirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative\nform) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action\nthat could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business\nCombination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement\nby the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination.\nNotwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential,\nnon-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or\ninvolving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof.\nEach party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive,\nand use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity.\nNotices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight\ncarrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the\naddresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree\nshall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General\nCounsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate\nDevelopment & Strategy with a copy to: Attention: Office of the General Counsel.\nThe Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with\nrespect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may\ninadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will\nimmediately destroy or return any such Confidential Information and other materials.\nThis Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the\nparties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure\nprovision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this\nAgreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning\nthe subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved\nin writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this\nAgreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed\ninvalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way\nbe affected or impaired thereby.\n17. 18. 19. 20. 21. 22. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly\nexecuted by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the\nother party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their\nsuccessors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement\nbinding on both parties.\nThis Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in\nthat State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with\nrespect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine\nor to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with\nprocess at its address set forth on the first page hereof.\nEach party assures the other that it does not intend to, and will not, export or re-export any technical information received under this\nAgreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the\nDisclosing Party.\nEach party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that\nit is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United\nStates and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information\nand such laws prohibit the communication of such information to any other person when it is reasonably foreseeable that such other person\nis likely to purchase or sell such securities in reliance upon such information. The Disclosing Party acknowledges that it is not acting as an\nadvisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United\nStates Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or\nexclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States\nfederal tax treatment or tax structure of the Transaction.\nNo failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right,\npower or privilege.\nThis Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any\nobligation to the other party under this Agreement.\nIN WITNESS WHEREOQF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC.\nBy: /s/ Jetf Brennan (sign) By: /s/ Michael DeSimone\nName: Jeff Brennan Name: Michael DeSimone\nTitle: VP, Corporate Development & Strategy Title: Chief Executive Officer\n[Signature Page to Non-Disclosure Agreement]\n(sign)\nEXHIBIT A\nBorderfree Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nDean Gels\nVice President, Corporate Development\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299.3563\nEmail: dean.gels@borderfree.com\nEd Neumann\nChief Financial Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299.3528\nEmail: ed.neumann@borderfree.com\nMichael DeSimone\nChief Executive Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299.3586\nEmail: mike@borderfree.com\nPBI Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nRonny B. Iversen\nCorporate Development\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.6422\nE-mail: Ronny.Iversen@pb.com\nJeff Brennan\nVice President, Corporate Development & Strategy\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.7566\nE-mail: Jeff.Brennan@pb.com	EX-99.(D)(2) 8 1923647dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis AGREEMENT is effective as of January 12, 2015 ("Effective Date") by and between Pitney Bowes Inc., a company having a place\nof business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, "PBI"), and Borderfree, Inc., a\ncompany having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates\n"Borderfree").\nThe parties hereto agree as follows:\n1.\nPBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the "Transaction") relating to the\npotential acquisition of Borderfree (the "Business"). To explore the Transaction, it may be necessary for each party to disclose certain\nConfidential Information to the other party. "Confidential Information" shall mean any information disclosed or provided to one party\n(the "Receiving Party") on or after the Effective Date by or on behalf of the other party (the "Disclosing Party"), which the Disclosing\nParty has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary\ninterest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans,\ndiscoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business,\nmarketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product\ninformation, customer data, product services, information of the Disclosing Party's subsidiaries and entities under its control and other\ncommunications concerning the Transaction and/or the Disclosing Party's business and operations, together with all portions of analyses,\ncompilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect\nany of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable\ndescription) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations,\nforecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection\nwith their review of, or the Receiving Party's interest in, the Transaction which, in whole or in part, contain or reflect or are based on any\ninformation referred to in this Section ("Analyses"). All information not meeting the requirements of this Section shall be considered non-\nconfidential.\n2.\nFor a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the\nDisclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the\nReceiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential\nInformation on a need to know basis to its and its affiliates' officers, directors, employees, consultants and advisors (including, without\nlimitation, financial advisors, investment banks, the agents and lenders under the Receiving Party's existing credit facilities, attorneys and\naccountants) ("Representatives") who have a need to know such information for purposes of evaluation and completion of the\nTransaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth\nin\nthis Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential\nInformation exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that\ndiscussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms,\nconditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status\nthereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as\n"Transaction Information"). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its\nRepresentatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a\nparty may have against the other party's Representatives with respect to such breach).\n3.\nThe term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or\nbecomes available to the Receiving Party\non\na non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party\nto be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party's or\nits Representatives' possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently\ndeveloped by a party or any of its Representatives without violating any of such party's obligations hereunder or without reference to the\nConfidential Information.\n4.\nUnless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all\ncommunications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings,\nand (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one\nor more members of the Pitney Bowes Corporate Development Department (the "PBI Contacts"). Contact information for the PBI\nContacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any\ncommunications\npermitted\nby\nthe\nlast\nsentence\nof\nSection\n12,\n(a)\nall\ncommunications\nregarding\nthe\nTransaction,\n(b)\nrequests\nfor\nadditional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and\nterms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this\nAgreement (the "Borderfree Contacts").\n5.\nNotwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event\nthe Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a\nregulatory examiner (any such requested or required disclosure, an "External Demand") to disclose all or any part of the Disclosing\nParty's Confidentia Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the\nextent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding\nsuch External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party's expense, in seeking a protective order or other\nappropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained,\nunless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be,\nmay disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by\ncounsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by\ncounsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party's\nexpense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidentia\nInformation or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of\nConfidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this\nAgreement.\n6.\nConfidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed\nwith\nthe\nTransaction,\nthe\nReceiving\nParty\nwill\npromptly\ninform\nthe\nDisclosing\nParty\nof\nthat\ndecision\nand,\nin\nthat\ncase,\nupon\nthe\nrequest\nof\nthe Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in\nthe Receiving Party's possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party's Analyses;\nprovided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party\nin the ordinary course of business and retained in accordance with the Receiving Party's general retention policies or computer backup\ntapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided\nfurther that the Receiving Party's records department may retain one copy of such Confidential Information, subject to the terms of this\nAgreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The\nReceiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party's authorized\nRepresentatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will\ncontinue to be bound by its and their obligations under this Agreement.\n7.\nNothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an\nobligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for\nthe use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a\nwritten agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been\nexecuted, neither party nor its affiliates nor its or its affiliates' Representatives shall have any legal obligation to the other party of any kind\nwhatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or\noral expression with respect to the Transaction, or otherwise.\n8.\nEach party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be\ncompetitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the\nacknowledging party's activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall\nprevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used\nonly for the purpose of this Transaction and in no event shall be provided to any of such companies.\n9.\nDisclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any\nUnited States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or\npartnership relationship between the parties, or (c) granting the right to use either party's name, trade names, trademarks, service marks,\nlogos or designs for any purpose, without the other party's prior written permission.\n10.\nThe Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement\nfor the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives' respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n"Exchange Act") makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any\nliability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions\ntherefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it\nwill be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below),\nsubject to such limitations and restrictions as may be contained therein. The term "Definitive Agreement" means a written agreement with\nrespect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction,\nsubject only to such conditions to closing as may be negotiated between the parties, and does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid.\n11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly\nor indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the\nDisclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation\nof the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the\nReceiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries\nor their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who\nresponds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of\nthis Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee\nof the Disclosing Party or its subsidiaries.\n12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so,\nneither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer,\npurchase of the Disclosing Party's assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization,\nrestructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any\nsecurities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a\nmajority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a "Business Combination"), (ii) propose\nor seek, whether alone or in concert with others, any "solicitation" (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person\nas a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or\nindirectly, form, join or in any way participate in a third party "group" (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative\nform) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action\nthat could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business\nCombination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement\nby the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination.\nNotwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential,\nnon-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or\ninvolving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof.\n13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive,\nand use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity.\n14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight\ncarrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the\naddresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree\nshall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General\nCounsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate\nDevelopment & Strategy with a copy to: Attention: Office of the General Counsel.\n15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with\nrespect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may\ninadvertently include such privileged information, upon the Disclosing Party's request the Receiving Party and its Representatives will\nimmediately destroy or return any such Confidential Information and other materials.\n16 This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the\nparties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure\nprovision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this\nAgreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning\nthe subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved\nin writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this\nAgreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed\ninvalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way\nbe affected or impaired thereby.\n17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly\nexecuted by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the\nother party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their\nsuccessors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement\nbinding on both parties.\n18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in\nthat State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with\nrespect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine\nor to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with\nprocess at its address set forth on the first page hereof.\n19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this\nAgreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the\nDisclosing Party.\n20.\nEach party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that\nit is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United\nStates and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information\nand such laws prohibit the communication of such information to any other person when it is reasonably foreseeable that such other person\nis likely to purchase or sell such securities in reliance upon such information. The Disclosing Party acknowledges that it is not acting as an\nadvisor to the Receiving Party and will not receive any amount that could be construed as a "minimum fee" within the meaning of United\nStates Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or\nexclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States\nfederal tax treatment or tax structure of the Transaction.\n21.\nNo failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right,\npower or privilege.\n22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any\nobligation to the other party under this Agreement.\nIN\nWITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement.\nPITNEY BOWES INC.\nBORDERFREE, INC.\nBy:\n/s/ Jeff Brennan\n(sign) By:\n/s/ Michael DeSimone\n(sign)\nName: Jeff Brennan\nName: Michael DeSimone\nTitle: VP, Corporate Development & Strategy\nTitle: Chief Executive Officer\n[Signature Page to Non-Disclosure Agreement]\nEXHIBIT A\nBorderfree Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nDean Gels\nVice President, Corporate Development\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299.3563\nEmail: dean.gels@borderfree.com\nEd Neumann\nChief Financial Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299.3528\nEmail: ed.neumann@borderfree.com\nMichael DeSimone\nChief Executive Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299.3586\nEmail: mike@borderfree.com\nPBI Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nRonny B. Iversen\nCorporate Development\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.6422\nE-mail: Ronny.Iversen@pb.com\nJeff Brennan\nVice President, Corporate Development & Strategy\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.7566\nE-mail: Jeff.Brennan@pb.com	EX-99.(D)(2) 8 d923647dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place\nof business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a\ncompany having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates\n“Borderfree”).\nThe parties hereto agree as follows:\n1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the\npotential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain\nConfidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party\n(the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing\nParty has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary\ninterest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans,\ndiscoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business,\nmarketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product\ninformation, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other\ncommunications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses,\ncompilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect\nany of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable\ndescription) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations,\nforecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection\nwith their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any\ninformation referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-\nconfidential.\n2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the\nDisclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the\nReceiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential\nInformation on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without\nlimitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and\naccountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the\nTransaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in\nthis Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential\nInformation exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that\ndiscussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms,\nconditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status\nthereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as\n“Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its\nRepresentatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a\nparty may have against the other party’s Representatives with respect to such breach).\n3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or\nbecomes available to the Receiving Party\non a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party\nto be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or\nits Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently\ndeveloped by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the\nConfidential Information.\n4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all\ncommunications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings,\nand (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one\nor more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI\nContacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any\ncommunications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and\nterms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this\nAgreement (the “Borderfree Contacts”).\n5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event\nthe Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a\nregulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing\nParty’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the\nextent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding\nsuch External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other\nappropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained,\nunless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be,\nmay disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by\ncounsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by\ncounsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s\nexpense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential\nInformation or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of\nConfidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this\nAgreement.\n6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed\nwith the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of\nthe Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in\nthe Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses;\nprovided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party\nin the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup\ntapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided\nfurther that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this\nAgreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The\nReceiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized\nRepresentatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will\ncontinue to be bound by its and their obligations under this Agreement.\n7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an\nobligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for\nthe use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a\nwritten agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been\nexecuted, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind\nwhatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or\noral expression with respect to the Transaction, or otherwise.\n8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be\ncompetitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the\nacknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall\nprevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used\nonly for the purpose of this Transaction and in no event shall be provided to any of such companies.\n9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any\nUnited States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or\npartnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks,\nlogos or designs for any purpose, without the other party’s prior written permission.\n10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement\nfor the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any\nliability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions\ntherefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it\nwill be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below),\nsubject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with\nrespect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction,\nsubject only to such conditions to closing as may be negotiated between the parties, and does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid.\n11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly\nor indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the\nDisclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation\nof the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the\nReceiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries\nor their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who\nresponds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of\nthis Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee\nof the Disclosing Party or its subsidiaries.\n12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so,\nneither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer,\npurchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization,\nrestructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any\nsecurities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a\nmajority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose\nor seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person\nas a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or\nindirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative\nform) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action\nthat could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business\nCombination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement\nby the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination.\nNotwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential,\nnon-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or\ninvolving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof.\n13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive,\nand use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity.\n14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight\ncarrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the\naddresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree\nshall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General\nCounsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate\nDevelopment & Strategy with a copy to: Attention: Office of the General Counsel.\n15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with\nrespect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may\ninadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will\nimmediately destroy or return any such Confidential Information and other materials.\n16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the\nparties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure\nprovision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this\nAgreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning\nthe subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved\nin writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this\nAgreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed\ninvalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way\nbe affected or impaired thereby.\n17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly\nexecuted by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the\nother party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their\nsuccessors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement\nbinding on both parties.\n18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in\nthat State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with\nrespect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine\nor to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with\nprocess at its address set forth on the first page hereof.\n19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this\nAgreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the\nDisclosing Party.\n20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that\nit is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United\nStates and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information\nand such laws prohibit the communication of such information to any other person when it is reasonably foreseeable that such other person\nis likely to purchase or sell such securities in reliance upon such information. The Disclosing Party acknowledges that it is not acting as an\nadvisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United\nStates Treas. Reg. Section 1.6011 -4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or\nexclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States\nfederal tax treatment or tax structure of the Transaction.\n21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right,\npower or privilege.\n22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any\nobligation to the other party under this Agreement.\nIN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement.\nPITNEY BOWES INC.\nBORDERFREE, INC.\nBy:\n/s/ Jeff Brennan\n(sign) By:\n/s/ Michael DeSimone\n(sign)\nName: Jeff Brennan\nName: Michael DeSimone\nTitle: VP, Corporate Development & Strategy\nTitle: Chief Executive Officer\n[Signature Page to Non-Disclosure Agreement]\nEXHIBIT A\nBorderfree Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nDean Gels\nVice President, Corporate Development\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299 .3563\nEmail: dean.gels@borderfree.com\nEd Neumann\nChief Financial Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299 .3528\nEmail: ed.neumann@borderfree.com\nMichael DeSimone\nChief Executive Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299 .3586\nEmail: mike@borderfree.com\nPBI Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nRonny B. Iversen\nCorporate Development\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.6422\nE-mail: Ronny.Iversen@pb.com\nJeff Brennan\nVice President, Corporate Development & Strategy\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.7566\nE-mail: Jeff.Brennan@pb.com
e29c3877a103aaefcf77ebb110f981a5.pdf	effective_date jurisdiction party term	EX-10.4 2 dex104.htm FORM OF NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.4\nNON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (hereinafter “Agreement”), dated and\neffective as of the date that you,\n, sign this Agreement, describes various conditions of your employment, including the obligations owed\nto Tyco Healthcare Group LP d/b/a Covidien and any of its parents, subsidiaries, successors, assigns or affiliated entities (hereinafter “Company”) by\nyou regarding competition with Company, the hiring of Company’s employees, solicitation of Company’s customers, and the maintenance of\nconfidential information important to Company’s business.\nCONSIDERATION\nYou acknowledge that the Company is engaged in a highly competitive industry. You further acknowledge that, as part of your employment\nwith the Company, you will have access to and/or gain knowledge of trade secrets and “Confidential Information” (as defined below) that is vital to\nthe interests and success of the Company.\nIn exchange for this Agreement, the Company awarded to you [number] non-qualified stock options, [number] restricted stock units and\n[number] performance share units on December 1, 2008 (collectively, “FY 2009 Equity Grant”) as consideration for your promises and contractual\nobligations as specified in this Agreement. You acknowledge that this FY 2009 Equity Grant constitutes adequate consideration even before it vests\nand regardless of the monetary value that results. As further consideration for this Agreement, and contemporaneous with its signing, the Company\nagrees to provide you with knowledge of its trade secrets and Confidential Information, with specialized, business-related education and training\nregarding the Company’s methodologies and business strategies, which will enable you to perform your job with the Company, with supplies and\nmaterials necessary for you to perform your job with the Company, and with goodwill in customer and other business relationships. You\nacknowledge that all of these items are necessary and desirable for your personal success as an employee of the Company.\nYou acknowledge that you are not previously or otherwise already entitled to the consideration described herein in exchange for the\nagreements specified herein. In exchange for this consideration and as a condition of your employment or continued employment if you are an\nexisting employee, you agree to the following.\nI. CONFIDENTIAL INFORMATION\nA. Nondisclosure of Confidential Information. You agree that during your employment with the Company and at any time thereafter, you will\nnot disclose to any other person or organization, or make or permit any use of, any of the Company’s Confidential Information. Additionally, the\nCompany specifically reserves its rights under any applicable common or statutory law regarding trade secrets, and prohibits disclosure and/or use of\ninformation which meets the definition of trade secrets under these common or statutory laws.\nB. “Confidential Information” Defined. “Confidential Information” means information in whatever form, including but not limited to hard\ncopy, electronically stored or in your memory, related to the operation of the Company that is not generally known to or readily ascertainable by\nother persons who might seek or accept such information for their own business use. The following is a non-exclusive list of information that\nconstitutes Confidential Information meeting the above definition: (1) information of a technical nature such as inventions; methods; processes;\ntechniques; ideas; data; equipment; computer programs; developments; designs; and technical expertise and know-how developed by the Company;\n(2) information of a commercial nature such as trademarks; information about costs, purchasing, profits, prices, markets, sales, contracts, and selling\nstrategies; lists of customers and employees; proposals made to current or prospective clients or customers or other information contained in bids or\noffers to such clients or customers; the arrangements and/or agreement, pricing, layout, design and implementation of client and/or customer-specific\nprojects; the identity of vendors and vendor pricing information; financial, marketing and sales information; and (3) information of a strategic nature\nsuch as future developments or strategies pertaining to research, development, marketing and sales; and other similar matters concerning the\nCompany’s planning.\nPage1of6\nC. Return of Confidential Information. Upon your separation from employment for any reason, the termination of your access to any\nConfidential Information or upon request by the Company, you shall return to the Company all electronic and hard-copy documents and materials\nbelonging to the Company, whether kept at your business office, personal residence or otherwise, including all materials containing or relating to any\nConfidential Information in any written or tangible form that you may have in your possession or control and including electronic equipment. After\nreturning the materials described in the preceding sentence to the Company, you shall not retain any copies of any such materials.\nD. Confidential Information of Clients and Vendors. You acknowledge that it is essential to the Company’s continued success to maintain the\nconfidentiality of all client and vendor information and trade secrets. Therefore, you agree not to use or disclose any confidential client or vendor\ninformation except as may be needed to conduct the Company’s business for the specific client or vendor. Upon your separation from employment\nwith the Company, you agree to deliver to an appropriate representative of the Company, without retaining any copies, notes or excerpts thereof, any\nand all documents and information that reference client or vendor information.\nE. Third-Party Confidentiality Agreements. You acknowledge that the Company from time to time may have agreements with other persons or\nentities that impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements, the\nconfidential nature of such work, or information about or owned by such person or entity. You agree to be bound by all such obligations and\nrestrictions as are made known to you and to take all action necessary to discharge the obligations of the Company under such agreements.\nII. INVENTIONS\nA. You shall promptly disclose to the Company all Inventions (as defined in Subsection II.B), which are made or conceived by you, either\nalone or with others, during the term of your employment with the Company, whether or not during working hours. Such Inventions directly or\nindirectly relate to matters within the scope of your duties or field of responsibility during your employment with the Company, or are based on your\nknowledge of the actual or anticipated business or interests of the Company, or are aided by the use of time, materials, facilities, or information of\nthe Company. You will not assert any rights under or to any Inventions as having been made or acquired by you prior to being employed by the\nCompany unless such Inventions have been identified to the Company in writing on a document signed by you at the time of hire. In addition, in\norder to avoid any dispute as to the date on which Inventions were made or conceived by you, they shall be deemed to have been made or conceived\nduring your employment with the Company if you take affirmative steps to have them reduced to practice either during the term of your employment\nor within one year after separation from employment.\nB. Herein, “Invention” means, whether or not patentable or copyrightable, the conception, discovery or reduction to practice of any new idea,\ntechnology, device, method, design, trade secret, composition of matter or any improvement thereto, including but not limited to any new articles of\nmanufacture or any improvement to existing articles of manufacture, any new apparatus or processes/methods for making or using a composition of\nmatter or article of manufacture, any computer software or any designs relating thereto, which relate to the Company’s actual or anticipated business\nor research activities or are suggested by or which result directly or indirectly from use of the Company’s information, time, materials, or facilities.\nC. You agree that all Inventions that are, or are deemed to be, made or conceived by you during employment with the Company shall, to the\nextent permitted by law, be the exclusive property of the Company, and you hereby assign to the Company your entire worldwide right, title, and\ninterest in and to any and all such Inventions. Whenever requested to do so by the Company, you shall execute any applications, assignments, or\nother instruments which the Company may consider necessary or advisable to apply for and obtain letters patent or copyrights in the United States or\nin any foreign country, or to otherwise record or protect the\nPage2of6\nCompany’s interest in such Inventions. In the event that you refuse to sign such an application, assignment, or other instrument, or, whether because\nof your physical or mental incapacity or for any other reason whatsoever, the Company is otherwise unable, after reasonable effort, to secure your\nsignature on any such application, assignment, or other instrument, you hereby irrevocably appoint the Company and its duly authorized officers and\nagents as your agent and attorney-in-fact to act for and in your behalf and stead to execute and file any such applications, assignments, and\ninstruments and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyrights, and other analogous\nprotections with the same legal force and effect as if executed by you. The obligations of this Subsection shall continue perpetually beyond the\nperiod of your employment with the Company and are not modified by any incentive payments made for an Invention or otherwise subject to any\nprovisions of a Company patent incentive award policy as may change from time to time.\nIII. RESTRICTIVE COVENANTS\nFor the good and valuable consideration recited herein, the receipt and sufficiency of which is hereby acknowledged, and in order to protect\nthe Company’s legitimate business interests, you agree as follows:\nA. Non-Competition:\n1. During your employment with the Company and for a period of twelve (12) months after your separation from employment for any\nreason (the “Restricted Period”), you will not, directly or indirectly, own, manage, operate, control, be employed by or otherwise provide services\n(whether as an employee consultant, independent contractor or otherwise, and whether or not for compensation) to any person, firm, corporation or\nother entity, in whatever form, engaged in any Competing Business. For purposes of this Agreement “Competing Business” is any entity (including\nany of its subsidiaries or affiliates) that produces a product or performs a service that is the same as or similar to, may be substituted for, or is\nintended to be used for any of the same purposes as a product or service produced, performed or under development by the Company. However,\nnotwithstanding any provision in this Subsection III.A, you may work for a Competing Business whose business is diversified, provided your work\nfor the Competing Business does not involve selling, managing, overseeing, developing, creating, promoting, servicing, involvement in the finance\nand/or accounting of, or other responsibility for any product, process, service or technology that resembles or competes with the those of the\nCompany on which you have worked or gained Confidential Information during the last 24 months of your employment (“Restricted Product or\nService”). Prior to accepting such employment, you and the Competing Business must provide the Company with written assurances satisfactory to\nthe Company that you will not render services directly or indirectly, for the 12-month Restricted Period, in connection with any Restricted Product or\nService and that any necessary safeguards or procedures have been put in place to ensure that this does not happen. Nothing in this Agreement shall\nprevent you from owning not more than one percent of the total shares of all classes of stock outstanding of any publicly held entity engaged in a\nCompeting Business.\n2. This restriction applies in the United States and also applies in any foreign country or foreign territory in which the services you will\nprovide could enhance the use or marketability of a Restricted Product or Service, use the Company’s goodwill, or otherwise interfere with any of\nthe Company’s protectable interests. Notwithstanding any other provision of this Subsection III.A, if at the time of separation from employment,\nyour primary area of responsibility involves sale of products within a certain geographic area, then the restrictions set forth in this Subsection III.A\nshall include and be limited to: (a) the geographic area that, directly or indirectly, was covered by either you or by employees, distributors, agents or\nrepresentatives who reported to you at any time during the 24-month period preceding your separation from employment; and/or (b) any geographic\narea in which you provided services, whether directly or indirectly, at any time during such 24-month period preceding separation from employment.\n3. If despite diligent and aggressive effort, after separation from employment for any reason you are unable to obtain employment\nconsistent with your education or training solely because of the provisions of this Subsection III.A, then such prohibition shall bind you only if and\nas long as the Company pays\nPage3of6\nyou a sum equal to your monthly base salary in effect on your employment termination date for each month of such unemployment during the 12-\nmonth Restricted Period. You will be eligible to receive this pay only if the Company determines, in its sole discretion, that you have provided\ninformation to the Company substantiating your efforts, the fact that your inability to find employment is due exclusively to the provisions of this\nSubsection III.A, and any other information that the Company deems relevant. For purposes of this provision “base salary” excludes bonuses, stock\noptions, restricted stock/share units, performance share units, commissions, incentive pay or other similar compensation or benefits and is subject to\nregular deductions for income taxes, Social Security and Medicare taxes and other deductions required by law. For each month of unemployment in\nwhich you receive payment under this provision, you must provide evidence that you have diligently and aggressively sought employment, and\nfailure to do so or to accept any reasonable offer, as determined in the sole discretion of the Company, will result in discontinuation of payments.\nPayments under this provision will be reduced by any other amounts that you receive during this period (including but not limited to unemployment\ncompensation, severance, and income earned as an employee, consultant or contractor from any employer or organization), and failure to disclose\nsuch amounts shall result in the discontinuation of payments and the Company shall have the right to recover prior payments made to you pursuant\nto Subsection III.A. The Company retains the sole right and discretion to determine whether you have engaged in reasonable efforts to secure a\nposition that is not in violation of Subsection III.A, and whether the failure to find a position is due to the restrictions in that Subsection. In addition,\nyou will not be eligible for payment under this provision if you have (a) breached your duty of loyalty to the Company, (b) breached any provision of\nthis Agreement, (c) breached any other agreement with the Company, including a breach of any Company rule or policy, (d) been terminated for\nCause (as hereinafter defined or as defined in any applicable Company plan or agreement), or (e) otherwise acted in bad faith or contrary to law. For\npurposes of this provision, “Cause” means any act of gross negligence; any act of misconduct; any fraudulent act or misrepresentation; violation of\napplicable law; any act involving dishonesty or moral turpitude; and/or refusal to comply with any of the Company’s reasonable directions,\nprocedures or policies.\nB. Non-Solicitation of Customers. During your employment and for a period of twelve (12) months after your separation from employment for\nany reason from the Company (the “Restricted Period”), you will not solicit, induce, attempt to induce, or provide any services to any current\nCompany Customer (defined as any Customer of the Company with whom you had dealings and/or for whom you performed services during the last\ntwenty-four (24) months of your employment with Company) to do business with you on your own behalf or on behalf of any Competing Business.\nC. Non-Solicitation of Employees. During the duration of your employment and for a period of twelve (12) months after your separation from\nemployment for any reason from the Company (the “Restricted Period”), you will not solicit, interfere with, encourage or endeavor to cause any\nother employee or independent contractor of the Company to leave his/her employment (or independent contractor assignment) with the Company.\nD. Acknowledgements:\n1. You acknowledge that the Company’s legitimate business interests include but are not limited to protecting trade secrets and secret,\nproprietary or confidential information (including but not limited to trade secrets as defined by applicable statutes and Confidential Information as\ndefined in Section I of this Agreement), knowledge and data; protecting customer lists; protecting customer relationships; protecting goodwill; and\nprotecting time and expense of training employees. You agree that each restriction in this Agreement is reasonable as to the time, territory, and line\nof business, and is reasonably necessary to protect the Company’s legitimate business interests.\n2. You acknowledge that Covidien is a large global healthcare company which researches, develops and supplies a large variety of\nhealthcare products and services including but not limited to medical devices, medical supplies, imaging solutions and pharmaceuticals all over the\nworld. As such, your position gives you access to highly confidential and proprietary global business related company strategies and information,\nand you acknowledge that global geographic restrictions are reasonable.\nPage4of6\n3. You acknowledge that your breach of any obligation under this Agreement will constitute immediate and irreparable damage to the\nCompany, which cannot be fully and adequately compensated in money damages and which will warrant preliminary and other injunctive relief, an\norder for specific performance, and other equitable relief. Further, you understand other action may be taken and remedies enforced against you,\nincluding but not limited to money damages and forfeiture of the FY 2009 Equity Grant which you received as consideration for this Agreement.\nYou will indemnify and hold the Company harmless from all costs (including all reasonable attorneys fees), damages and liabilities the Company\nincurs as a result of your breach of any provision of this Agreement. You further acknowledge that your general knowledge and skill are such that\nenforcement of Sections I, II and III of this Agreement by injunction will not prevent you from earning a livelihood.\n4. You acknowledge that if the Company determines, in its sole discretion, that you violated any covenant set forth in this Agreement\n(“Company Determination”), then the Restricted Period will be extended for a period of time equal to the period of time that you are in violation of\nthe Agreement, to the extent allowed by law. In addition, any portion of the FY 2009 Equity Grant that has not vested (with respect to restricted\nstock units or performance share units) or that you have not exercised (with respect to stock options, whether vested or unvested) on the Company\nDetermination date will immediately be rescinded, and you will forfeit any rights you have with respect to the unvested or unexercised portion of the\nFY 2009 Equity Grant. Also, you hereby agree and promise to deliver to the Company, immediately upon the Company Determination date, shares\n(or, in the discretion of the Company, cash) equal in value to the amount of any profit you realized upon the exercise of any stock options or the\nvesting of any restricted stock units or performance share units (all of which being awarded as part of the FY 2009 Equity Grant) that occurred\nduring the period that begins 12 months immediately prior to your termination of employment and ends on the Company Determination date.\nIV. GENERAL PROVISIONS\nA. If you contend that any restriction on activities imposed under Sections I, II. or III. of this Agreement is not enforceable, does not apply to\nan activity in which you intend to engage, or should not be enforced against you, you will notify the Vice President of Human Resources for your\nGlobal Business Unit (or if you work in a corporate function, the Human Resources Vice President for Corporate) in writing at least 14 days before\nengaging in such activity so that the Company and you may address and resolve any such issues.\nB. This Agreement, along with any agreement that you have previously signed regarding non-disclosure of information and/or inventions,\ncontains the entire understanding between the parties with respect to the subject matter within each agreement. This Agreement may not be modified\nor amended except by an agreement in writing signed by both parties.\nC. The headings in this Agreement are included for convenience of reference, and in the event of any conflict between such headings and the\ntext of this Agreement, the text will control.\nD. The invalidity or unenforceability of any provision of this Agreement as applied to a particular occurrence or circumstance or otherwise\nshall not affect the validity, enforceability, and applicability of any other provision of this Agreement. Indeed, the Company and you ask any\nreviewing court to reform, rewrite, revise, edit or blue pencil (strike through the least amount of words, phrases, or sections) any provision in the\nAgreement determined to be unenforceable for any reason to make the Agreement enforceable.\nE. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, affiliated entities,\nassigns, heirs, and personal representatives; provided, however, that you may not assign any of your rights, title or interest in this Agreement.\nSpecifically, any respective successors, assigns, heirs, and personal representatives, parent, subsidiary or affiliated entity of the Company shall have\nthe right to the enforcement of the restrictive covenants contained herein.\nF. The Company’s failure to insist upon your strict compliance with any provision of this Agreement shall not be deemed a waiver of such\nprovision or of any other provision in this Agreement.\nPage5of6\nG. You understand and agree that the Company may notify anyone employing you or evidencing an intent to employ you after your separation\nfrom employment for any reason as to the existence of the provisions of this Agreement. You also agree to (a) disclose this Agreement to any\nprospective employer prior to accepting employment during any Restrictive Period provided in this Agreement and (b) inform the Company at the\ntime you give notice of separation from employment, of the identity of your new employer and of the job title and responsibilities.\nH. The Company has its principal place of business in Massachusetts. The validity, performance, construction and effect of this Agreement\nshall be construed, enforced and governed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of laws\nprinciples. You irrevocably consent to personal jurisdiction in the state courts of Massachusetts and the U.S . District Court for the District of\nMassachusetts for any action arising out of this Agreement, regardless of where you reside or perform duties.\nI. This Agreement, or certain portions thereof, will not be enforced where applicable law, regulations or professional rules prohibit or limit\nenforceability. Nothing in this provision shall limit the enforceability of the Choice of Law, Jurisdiction and Venue provision in Subsection IV.H .\nJ. Nothing in this Agreement shall be deemed to confer on you any rights with respect to the duration of your employment with the Company.\nYOU UNDERSTAND AND AGREE THAT YOUR EMPLOYMENT RELATIONSHIP WITH THE COMPANY IS TERMINABLE AT WILL BY\nEITHER THE COMPANY OR YOU, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT NOTICE, AND NOTHING IN THIS\nAGREEMENT ALTERS THAT AT-WILL RELATIONSHIP.\nK. You acknowledge and agree that all of your obligations herein shall survive and be a condition of any change in your employment status,\nwhether in the form of a promotion or a change in job title, compensation, responsibilities, or any other aspect of your employment. You further\nagree that your obligations hereunder will survive such change in your employment status without the need for you to re-execute this or a similar\nagreement or to otherwise re-affirm these obligations. Nonetheless, you may be asked to re-execute this or a similar agreement or to otherwise re-\naffirm these obligations as a condition of a promotion, and you agree to do so if asked.\nI ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT; UNDERSTAND MY OBLIGATIONS UNDER THIS\nAGREEMENT; SIGN IT VOLUNTARILY, AND INTEND TO BE LEGALLY BOUND BY THIS AGREEMENT.\nEMPLOYEE\nSignature\nDate\nPrinted Name\nCOMPANY\nSignature\nDate\nPrinted Name\nTitle\nPage6of6	EX-10.4 2 dex104.htm FORM OF NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.4\nNON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (hereinafter “Agreement”), dated and\neffective as of the date that you, sign this Agreement, describes various conditions of your employment, including the obligations owed\nto Tyco Healthcare Group LP d/b/a Covidien and any of its parents, subsidiaries, successors, assigns or affiliated entities (hereinafter “Company”) by\nyou regarding competition with Company, the hiring of Company’s employees, solicitation of Company’s customers, and the maintenance of\nconfidential information important to Company’s business.\n \nCONSIDERATION\nYou acknowledge that the Company is engaged in a highly competitive industry. You further acknowledge that, as part of your employment\nwith the Company, you will have access to and/or gain knowledge of trade secrets and “Confidential Information” (as defined below) that is vital to\nthe interests and success of the Company.\nIn exchange for this Agreement, the Company awarded to you [number] non-qualified stock options, [number] restricted stock units and\n[number] performance share units on December 1, 2008 (collectively, “FY 2009 Equity Grant”) as consideration for your promises and contractual\nobligations as specified in this Agreement. You acknowledge that this F'Y 2009 Equity Grant constitutes adequate consideration even before it vests\nand regardless of the monetary value that results. As further consideration for this Agreement, and contemporaneous with its signing, the Company\nagrees to provide you with knowledge of its trade secrets and Confidential Information, with specialized, business-related education and training\nregarding the Company’s methodologies and business strategies, which will enable you to perform your job with the Company, with supplies and\nmaterials necessary for you to perform your job with the Company, and with goodwill in customer and other business relationships. You\nacknowledge that all of these items are necessary and desirable for your personal success as an employee of the Company.\nYou acknowledge that you are not previously or otherwise already entitled to the consideration described herein in exchange for the\nagreements specified herein. In exchange for this consideration and as a condition of your employment or continued employment if you are an\nexisting employee, you agree to the following.\nI. CONFIDENTIAL INFORMATION\nA. Nondisclosure of Confidential Information. You agree that during your employment with the Company and at any time thereafter, you will\nnot disclose to any other person or organization, or make or permit any use of, any of the Company’s Confidential Information. Additionally, the\nCompany specifically reserves its rights under any applicable common or statutory law regarding trade secrets, and prohibits disclosure and/or use of\ninformation which meets the definition of trade secrets under these common or statutory laws.\nB. “Confidential Information” Defined. “Confidential Information” means information in whatever form, including but not limited to hard\ncopy, electronically stored or in your memory, related to the operation of the Company that is not generally known to or readily ascertainable by\nother persons who might seek or accept such information for their own business use. The following is a non-exclusive list of information that\nconstitutes Confidential Information meeting the above definition: (1) information of a technical nature such as inventions; methods; processes;\ntechniques; ideas; data; equipment; computer programs; developments; designs; and technical expertise and know-how developed by the Company;\n(2) information of a commercial nature such as trademarks; information about costs, purchasing, profits, prices, markets, sales, contracts, and selling\nstrategies; lists of customers and employees; proposals made to current or prospective clients or customers or other information contained in bids or\noffers to such clients or customers; the arrangements and/or agreement, pricing, layout, design and implementation of client and/or customer-specific\nprojects; the identity of vendors and vendor pricing information; financial, marketing and sales information; and (3) information of a strategic nature\nsuch as future developments or strategies pertaining to research, development, marketing and sales; and other similar matters concerning the\nCompany’s planning.\nPage 1 0of 6\nC. Return of Confidential Information. Upon your separation from employment for any reason, the termination of your access to any\nConfidential Information or upon request by the Company, you shall return to the Company all electronic and hard-copy documents and materials\nbelonging to the Company, whether kept at your business office, personal residence or otherwise, including all materials containing or relating to any\nConfidential Information in any written or tangible form that you may have in your possession or control and including electronic equipment. After\nreturning the materials described in the preceding sentence to the Company, you shall not retain any copies of any such materials.\nD. Confidential Information of Clients and Vendors. You acknowledge that it is essential to the Company’s continued success to maintain the\nconfidentiality of all client and vendor information and trade secrets. Therefore, you agree not to use or disclose any confidential client or vendor\ninformation except as may be needed to conduct the Company’s business for the specific client or vendor. Upon your separation from employment\nwith the Company, you agree to deliver to an appropriate representative of the Company, without retaining any copies, notes or excerpts thereof, any\nand all documents and information that reference client or vendor information.\nE. Third-Party Confidentiality Agreements. You acknowledge that the Company from time to time may have agreements with other persons or\nentities that impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements, the\nconfidential nature of such work, or information about or owned by such person or entity. You agree to be bound by all such obligations and\nrestrictions as are made known to you and to take all action necessary to discharge the obligations of the Company under such agreements.\nII. INVENTIONS\nA. You shall promptly disclose to the Company all Inventions (as defined in Subsection II.B), which are made or conceived by you, either\nalone or with others, during the term of your employment with the Company, whether or not during working hours. Such Inventions directly or\nindirectly relate to matters within the scope of your duties or field of responsibility during your employment with the Company, or are based on your\nknowledge of the actual or anticipated business or interests of the Company, or are aided by the use of time, materials, facilities, or information of\nthe Company. You will not assert any rights under or to any Inventions as having been made or acquired by you prior to being employed by the\nCompany unless such Inventions have been identified to the Company in writing on a document signed by you at the time of hire. In addition, in\norder to avoid any dispute as to the date on which Inventions were made or conceived by you, they shall be deemed to have been made or conceived\nduring your employment with the Company if you take affirmative steps to have them reduced to practice either during the term of your employment\nor within one year after separation from employment.\nB. Herein, “Invention” means, whether or not patentable or copyrightable, the conception, discovery or reduction to practice of any new idea,\ntechnology, device, method, design, trade secret, composition of matter or any improvement thereto, including but not limited to any new articles of\nmanufacture or any improvement to existing articles of manufacture, any new apparatus or processes/methods for making or using a composition of\nmatter or article of manufacture, any computer software or any designs relating thereto, which relate to the Company’s actual or anticipated business\nor research activities or are suggested by or which result directly or indirectly from use of the Company’s information, time, materials, or facilities.\nC. You agree that all Inventions that are, or are deemed to be, made or conceived by you during employment with the Company shall, to the\nextent permitted by law, be the exclusive property of the Company, and you hereby assign to the Company your entire worldwide right, title, and\ninterest in and to any and all such Inventions. Whenever requested to do so by the Company, you shall execute any applications, assignments, or\nother instruments which the Company may consider necessary or advisable to apply for and obtain letters patent or copyrights in the United States or\nin any foreign country, or to otherwise record or protect the\nPage 2 of 6\nCompany’s interest in such Inventions. In the event that you refuse to sign such an application, assignment, or other instrument, or, whether because\nof your physical or mental incapacity or for any other reason whatsoever, the Company is otherwise unable, after reasonable effort, to secure your\nsignature on any such application, assignment, or other instrument, you hereby irrevocably appoint the Company and its duly authorized officers and\nagents as your agent and attorney-in-fact to act for and in your behalf and stead to execute and file any such applications, assignments, and\ninstruments and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyrights, and other analogous\nprotections with the same legal force and effect as if executed by you. The obligations of this Subsection shall continue perpetually beyond the\nperiod of your employment with the Company and are not modified by any incentive payments made for an Invention or otherwise subject to any\nprovisions of a Company patent incentive award policy as may change from time to time.\nIII. RESTRICTIVE COVENANTS\nFor the good and valuable consideration recited herein, the receipt and sufficiency of which is hereby acknowledged, and in order to protect\nthe Company’s legitimate business interests, you agree as follows:\nA. Non-Competition:\n1. During your employment with the Company and for a period of twelve (12) months after your separation from employment for any\nreason (the “Restricted Period”), you will not, directly or indirectly, own, manage, operate, control, be employed by or otherwise provide services\n(whether as an employee consultant, independent contractor or otherwise, and whether or not for compensation) to any person, firm, corporation or\nother entity, in whatever form, engaged in any Competing Business. For purposes of this Agreement “Competing Business” is any entity (including\nany of its subsidiaries or affiliates) that produces a product or performs a service that is the same as or similar to, may be substituted for, or is\nintended to be used for any of the same purposes as a product or service produced, performed or under development by the Company. However,\nnotwithstanding any provision in this Subsection III.A, you may work for a Competing Business whose business is diversified, provided your work\nfor the Competing Business does not involve selling, managing, overseeing, developing, creating, promoting, servicing, involvement in the finance\nand/or accounting of, or other responsibility for any product, process, service or technology that resembles or competes with the those of the\nCompany on which you have worked or gained Confidential Information during the last 24 months of your employment (“Restricted Product or\nService”). Prior to accepting such employment, you and the Competing Business must provide the Company with written assurances satisfactory to\nthe Company that you will not render services directly or indirectly, for the 12-month Restricted Period, in connection with any Restricted Product or\nService and that any necessary safeguards or procedures have been put in place to ensure that this does not happen. Nothing in this Agreement shall\nprevent you from owning not more than one percent of the total shares of all classes of stock outstanding of any publicly held entity engaged in a\nCompeting Business.\n2. This restriction applies in the United States and also applies in any foreign country or foreign territory in which the services you will\nprovide could enhance the use or marketability of a Restricted Product or Service, use the Company’s goodwill, or otherwise interfere with any of\nthe Company’s protectable interests. Notwithstanding any other provision of this Subsection III. A, if at the time of separation from employment,\nyour primary area of responsibility involves sale of products within a certain geographic area, then the restrictions set forth in this Subsection III.A\nshall include and be limited to: (a) the geographic area that, directly or indirectly, was covered by either you or by employees, distributors, agents or\nrepresentatives who reported to you at any time during the 24-month period preceding your separation from employment; and/or (b) any geographic\narea in which you provided services, whether directly or indirectly, at any time during such 24-month period preceding separation from employment.\n3. If despite diligent and aggressive effort, after separation from employment for any reason you are unable to obtain employment\nconsistent with your education or training solely because of the provisions of this Subsection III.A, then such prohibition shall bind you only if and\nas long as the Company pays\nPage 3 of 6\nyou a sum equal to your monthly base salary in effect on your employment termination date for each month of such unemployment during the 12-\nmonth Restricted Period. You will be eligible to receive this pay only if the Company determines, in its sole discretion, that you have provided\ninformation to the Company substantiating your efforts, the fact that your inability to find employment is due exclusively to the provisions of this\nSubsection III.A, and any other information that the Company deems relevant. For purposes of this provision “base salary” excludes bonuses, stock\noptions, restricted stock/share units, performance share units, commissions, incentive pay or other similar compensation or benefits and is subject to\nregular deductions for income taxes, Social Security and Medicare taxes and other deductions required by law. For each month of unemployment in\nwhich you receive payment under this provision, you must provide evidence that you have diligently and aggressively sought employment, and\nfailure to do so or to accept any reasonable offer, as determined in the sole discretion of the Company, will result in discontinuation of payments.\nPayments under this provision will be reduced by any other amounts that you receive during this period (including but not limited to unemployment\ncompensation, severance, and income earned as an employee, consultant or contractor from any employer or organization), and failure to disclose\nsuch amounts shall result in the discontinuation of payments and the Company shall have the right to recover prior payments made to you pursuant\nto Subsection III.A. The Company retains the sole right and discretion to determine whether you have engaged in reasonable efforts to secure a\nposition that is not in violation of Subsection III.A, and whether the failure to find a position is due to the restrictions in that Subsection. In addition,\nyou will not be eligible for payment under this provision if you have (a) breached your duty of loyalty to the Company, (b) breached any provision of\nthis Agreement, (c) breached any other agreement with the Company, including a breach of any Company rule or policy, (d) been terminated for\nCause (as hereinafter defined or as defined in any applicable Company plan or agreement), or (e) otherwise acted in bad faith or contrary to law. For\npurposes of this provision, “Cause” means any act of gross negligence; any act of misconduct; any fraudulent act or misrepresentation; violation of\napplicable law; any act involving dishonesty or moral turpitude; and/or refusal to comply with any of the Company’s reasonable directions,\nprocedures or policies.\nB. Non-Solicitation of Customers. During your employment and for a period of twelve (12) months after your separation from employment for\nany reason from the Company (the “Restricted Period”), you will not solicit, induce, attempt to induce, or provide any services to any current\nCompany Customer (defined as any Customer of the Company with whom you had dealings and/or for whom you performed services during the last\ntwenty-four (24) months of your employment with Company) to do business with you on your own behalf or on behalf of any Competing Business.\nC. Non-Solicitation of Employees. During the duration of your employment and for a period of twelve (12) months after your separation from\nemployment for any reason from the Company (the “Restricted Period”), you will not solicit, interfere with, encourage or endeavor to cause any\nother employee or independent contractor of the Company to leave his/her employment (or independent contractor assignment) with the Company.\nD. Acknowledgements:\n1. You acknowledge that the Company’s legitimate business interests include but are not limited to protecting trade secrets and secret,\nproprietary or confidential information (including but not limited to trade secrets as defined by applicable statutes and Confidential Information as\ndefined in Section I of this Agreement), knowledge and data; protecting customer lists; protecting customer relationships; protecting goodwill; and\nprotecting time and expense of training employees. You agree that each restriction in this Agreement is reasonable as to the time, territory, and line\nof business, and is reasonably necessary to protect the Company’s legitimate business interests.\n2. You acknowledge that Covidien is a large global healthcare company which researches, develops and supplies a large variety of\nhealthcare products and services including but not limited to medical devices, medical supplies, imaging solutions and pharmaceuticals all over the\nworld. As such, your position gives you access to highly confidential and proprietary global business related company strategies and information,\nand you acknowledge that global geographic restrictions are reasonable.\nPage 4 of 6\n3. You acknowledge that your breach of any obligation under this Agreement will constitute immediate and irreparable damage to the\nCompany, which cannot be fully and adequately compensated in money damages and which will warrant preliminary and other injunctive relief, an\norder for specific performance, and other equitable relief. Further, you understand other action may be taken and remedies enforced against you,\nincluding but not limited to money damages and forfeiture of the FY 2009 Equity Grant which you received as consideration for this Agreement.\nYou will indemnify and hold the Company harmless from all costs (including all reasonable attorneys fees), damages and liabilities the Company\nincurs as a result of your breach of any provision of this Agreement. You further acknowledge that your general knowledge and skill are such that\nenforcement of Sections I, I and III of this Agreement by injunction will not prevent you from earning a livelihood.\n4. You acknowledge that if the Company determines, in its sole discretion, that you violated any covenant set forth in this Agreement\n(“Company Determination”), then the Restricted Period will be extended for a period of time equal to the period of time that you are in violation of\nthe Agreement, to the extent allowed by law. In addition, any portion of the FY 2009 Equity Grant that has not vested (with respect to restricted\nstock units or performance share units) or that you have not exercised (with respect to stock options, whether vested or unvested) on the Company\nDetermination date will immediately be rescinded, and you will forfeit any rights you have with respect to the unvested or unexercised portion of the\nFY 2009 Equity Grant. Also, you hereby agree and promise to deliver to the Company, immediately upon the Company Determination date, shares\n(or, in the discretion of the Company, cash) equal in value to the amount of any profit you realized upon the exercise of any stock options or the\nvesting of any restricted stock units or performance share units (all of which being awarded as part of the FY 2009 Equity Grant) that occurred\nduring the period that begins 12 months immediately prior to your termination of employment and ends on the Company Determination date.\nIV. GENERAL PROVISIONS\nA. If you contend that any restriction on activities imposed under Sections I, II. or IIL. of this Agreement is not enforceable, does not apply to\nan activity in which you intend to engage, or should not be enforced against you, you will notify the Vice President of Human Resources for your\nGlobal Business Unit (or if you work in a corporate function, the Human Resources Vice President for Corporate) in writing at least 14 days before\nengaging in such activity so that the Company and you may address and resolve any such issues.\nB. This Agreement, along with any agreement that you have previously signed regarding non-disclosure of information and/or inventions,\ncontains the entire understanding between the parties with respect to the subject matter within each agreement. This Agreement may not be modified\nor amended except by an agreement in writing signed by both parties.\nC. The headings in this Agreement are included for convenience of reference, and in the event of any conflict between such headings and the\ntext of this Agreement, the text will control.\nD. The invalidity or unenforceability of any provision of this Agreement as applied to a particular occurrence or circumstance or otherwise\nshall not affect the validity, enforceability, and applicability of any other provision of this Agreement. Indeed, the Company and you ask any\nreviewing court to reform, rewrite, revise, edit or blue pencil (strike through the least amount of words, phrases, or sections) any provision in the\nAgreement determined to be unenforceable for any reason to make the Agreement enforceable.\nE. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, affiliated entities,\nassigns, heirs, and personal representatives; provided, however, that you may not assign any of your rights, title or interest in this Agreement.\nSpecifically, any respective successors, assigns, heirs, and personal representatives, parent, subsidiary or affiliated entity of the Company shall have\nthe right to the enforcement of the restrictive covenants contained herein.\nF. The Company’s failure to insist upon your strict compliance with any provision of this Agreement shall not be deemed a waiver of such\nprovision or of any other provision in this Agreement.\nPage 5 of 6\nG. You understand and agree that the Company may notify anyone employing you or evidencing an intent to employ you after your separation\nfrom employment for any reason as to the existence of the provisions of this Agreement. You also agree to (a) disclose this Agreement to any\nprospective employer prior to accepting employment during any Restrictive Period provided in this Agreement and (b) inform the Company at the\ntime you give notice of separation from employment, of the identity of your new employer and of the job title and responsibilities.\nH. The Company has its principal place of business in Massachusetts. The validity, performance, construction and effect of this Agreement\nshall be construed, enforced and governed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of laws\nprinciples. You irrevocably consent to personal jurisdiction in the state courts of Massachusetts and the U.S. District Court for the District of\nMassachusetts for any action arising out of this Agreement, regardless of where you reside or perform duties.\nI. This Agreement, or certain portions thereof, will not be enforced where applicable law, regulations or professional rules prohibit or limit\nenforceability. Nothing in this provision shall limit the enforceability of the Choice of Law, Jurisdiction and Venue provision in Subsection IV.H.\nJ. Nothing in this Agreement shall be deemed to confer on you any rights with respect to the duration of your employment with the Company.\nYOU UNDERSTAND AND AGREE THAT YOUR EMPLOYMENT RELATIONSHIP WITH THE COMPANY IS TERMINABLE AT WILL BY\nEITHER THE COMPANY OR YOU, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT NOTICE, AND NOTHING IN THIS\nAGREEMENT ALTERS THAT AT-WILL RELATIONSHIP.\nK. You acknowledge and agree that all of your obligations herein shall survive and be a condition of any change in your employment status,\nwhether in the form of a promotion or a change in job title, compensation, responsibilities, or any other aspect of your employment. You further\nagree that your obligations hereunder will survive such change in your employment status without the need for you to re-execute this or a similar\nagreement or to otherwise re-affirm these obligations. Nonetheless, you may be asked to re-execute this or a similar agreement or to otherwise re-\naffirm these obligations as a condition of a promotion, and you agree to do so if asked.\nI ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT; UNDERSTAND MY OBLIGATIONS UNDER THIS\nAGREEMENT; SIGN IT VOLUNTARILY, AND INTEND TO BE LEGALLY BOUND BY THIS AGREEMENT.\nEMPLOYEE\nSignature Date\nPrinted Name\nCOMPANY\nSignature Date\nPrinted Name\nTitle\nPage 6 of 6	EX-10.4 2 ex104.htm FORM OF NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.4\nNON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (hereinafter "Agreement"), dated and\neffective as of the date that you, sign this Agreement, describes various conditions of your employment, including the obligations owed\nto Tyco Healthcare Group LP d/b/a Covidien and any of its parents, subsidiaries, successors, assigns or affiliated entities (hereinafter "Company") by\nyou regarding competition with Company, the hiring of Company's employees, solicitation of Company's customers, and the maintenance of\nconfidential information important to Company's business.\nCONSIDERATION\nYou acknowledge that the Company is engaged in a highly competitive industry. You further acknowledge that, as part of your employment\nwith the Company, you will have access to and/or gain knowledge of trade secrets and "Confidential Information" (as defined below) that is vital to\nthe interests and success of the Company.\nIn exchange for this Agreement, the Company awarded to you [number] non-qualified stock options, [number] restricted stock units and\n[number] performance share units on December 1, 2008 (collectively, "FY 2009 Equity Grant") as consideration for your promises and contractual\nobligations as specified in this Agreement. You acknowledge that this FY 2009 Equity Grant constitutes adequate consideration even before it vests\nand regardless of the monetary value that results. As further consideration for this Agreement, and contemporaneous with its signing, the Company\nagrees to provide you with knowledge of its trade secrets and Confidential Information, with specialized, business-related education and training\nregarding the Company's methodologies and business strategies, which will enable you to perform your job with the Company, with supplies\nand\nmaterials necessary for you to perform your job with the Company, and with goodwill in customer and other business relationships. You\nacknowledge that all of these items are necessary and desirable for your personal success as an employee of the Company.\nYou acknowledge that you are not previously or otherwise already entitled to the consideration described herein in exchange for the\nagreements specified herein. In exchange for this consideration and as a condition of your employment or continued employment if you are an\nexisting employee, you agree to the following.\nI. CONFIDENTIAL INFORMATION\nA. Nondisclosure of Confidential Information. You agree that during your employment with the Company and at any time thereafter, you will\nnot\ndisclose to any other person or organization, or make or permit any use of, any of the Company's Confidential Information. Additionally, the\nCompany specifically reserves its rights under any applicable common or statutory law regarding trade secrets, and prohibits disclosure and/or use of\ninformation which meets the definition of trade secrets under these common or statutory laws.\nB. "Confidential Information" Defined. "Confidential Information" means information in whatever form, including but not limited to hard\ncopy, electronically stored or in your memory, related to the operation of the Company that is not generally known to or readily ascertainable by\nother persons who might seek or accept such information for their own business use. The following is a non-exclusive list of information that\nconstitutes Confidential Information meeting the above definition: (1) information of a technical nature such as inventions; methods; processes;\ntechniques; ideas; data; equipment; computer programs; developments; designs; and technical expertise and know-how developed by the Company;\n(2)\ninformation of a commercial nature such as trademarks; information about costs, purchasing, profits, prices, markets, sales, contracts, and selling\nstrategies; lists of customers and employees; proposals made to current or prospective clients or customers or other information contained in bids or\noffers to such clients or customers; the arrangements and/or agreement, pricing, layout, design and implementation of client and/or customer-specific\nprojects; the identity of vendors and vendor pricing information; financial, marketing and sales information; and (3) information of a strategic nature\nsuch as future developments or strategies pertaining to research, development, marketing and sales; and other similar matters concerning the\nCompany's planning.\nPage 1 of 6\nC. Return of Confidential Information. Upon your separation from employment for any reason, the termination of your access to any\nConfidential Information or upon request by the Company, you shall return to the Company all electronic and hard-copy documents and materials\nbelonging to the Company, whether kept at your business office, personal residence or otherwise, including all materials containing or relating to any\nConfidential Information in any written or tangible form that you may have in your possession or control and including electronic equipment. After\nreturning the materials described in the preceding sentence to the Company, you shall not retain any copies of any such materials.\nD. Confidential Information of Clients and Vendors. You acknowledge that it is essential to the Company's continued success to maintain\nthe\nconfidentiality of all client and vendor information and trade secrets. Therefore, you agree not to use or disclose any confidential client or vendor\ninformation except as may be needed to conduct the Company's business for the specific client or vendor. Upon your separation from employment\nwith the Company, you agree to deliver to an appropriate representative of the Company, without retaining any copies, notes or excerpts thereof, any\nand all documents and information that reference client or vendor information.\nE. Third-Party. Confidentiality. Agreements. You acknowledge that the Company from time to time may have agreements with other persons or\nentities that impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements, the\nconfidential nature of such work, or information about or owned by such person or entity. You agree to be bound by all such obligations and\nrestrictions as are made known to you and to take all action necessary to discharge the obligations of the Company under such agreements.\nII. INVENTIONS\nA. You shall promptly disclose to the Company all Inventions (as defined in Subsection II.B), which are made or conceived by you, either\nalone or with others, during the term of your employment with the Company, whether or not during working hours. Such Inventions directly or\nindirectly relate to matters within the scope of your duties or field of responsibility during your employment with the Company, or are based on your\nknowledge\nof\nthe\nactual\nor\nanticipated\nbusiness\nor\ninterests\nof\nthe\nCompany,\nor\nare\naided\nby\nthe\nuse\nof\ntime,\nmaterials,\nfacilities,\nor\ninformation\nof\nthe Company. You will not assert any rights under or to any Inventions as having been made or acquired by you prior to being employed by the\nCompany unless such Inventions have been identified to the Company in writing on a document signed by you at the time of hire. In addition, in\norder\nto avoid any dispute as to the date on which Inventions were made or conceived by you, they shall be deemed to have been made or conceived\nduring your employment with the Company if you take affirmative steps to have them reduced to practice either during the term of your employment\nor within one year after separation from employment.\nB. Herein, "Invention" means, whether or not patentable or copyrightable, the conception, discovery or reduction to practice of any new idea,\ntechnology, device, method, design, trade secret, composition of matter or any improvement thereto, including but not limited to any new articles\nof\nmanufacture or any improvement to existing articles of manufacture, any new apparatus or processes/methods for making or using a composition of\nmatter or article of manufacture, any computer software or any designs relating thereto, which relate to the Company's actual or anticipated business\nor research activities or are suggested by or which result directly or indirectly from use of the Company's information, time, materials, or facilities.\nC. You agree that all Inventions that are, or are deemed to be, made or conceived by you during employment with the Company shall, to the\nextent permitted by law, be the exclusive property of the Company, and you hereby assign to the Company your entire worldwide right, title, and\ninterest\nin\nand\nto\nany and all such Inventions. Whenever requested to do so by the Company, you shall execute any applications, assignments,\nor\nother instruments which the Company may consider necessary or advisable to apply for and obtain letters patent or copyrights in the United States or\nin any foreign country, or to otherwise record or protect the\nPage 2 of 6\nCompany's interest in such Inventions. In the event that you refuse to sign such an application, assignment, or other instrument, or, whether because\nof your physical or mental incapacity or for any other reason whatsoever, the Company is otherwise unable, after reasonable effort, to secure your\nsignature on any such application, assignment, or other instrument, you hereby irrevocably appoint the Company and its duly authorized officers and\nagents as your agent and attorney-in-fact to act for and in your behalf and stead to execute and file any such applications, assignments, and\ninstruments and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyrights, and other analogous\nprotections with the same legal force and effect as if executed by you. The obligations of this Subsection shall continue perpetually beyond the\nperiod of your employment with the Company and are not modified by any incentive payments made for an Invention or otherwise subject to any\nprovisions of a Company patent incentive award policy as may change from time to time.\nIII. RESTRICTIVE COVENANTS\nFor the good and valuable consideration recited herein, the receipt and sufficiency of which is hereby acknowledged, and in order to protect\nthe Company's legitimate business interests, you agree as follows:\nA. Non-Competition:\n1. During your employment with the Company and for a period of twelve (12) months after your separation from employment for any\nreason (the "Restricted Period"), you will not, directly or indirectly, own, manage, operate, control, be employed by or otherwise provide services\n(whether as an employee consultant, independent contractor or otherwise, and whether or not for compensation) to any person, firm, corporation or\nother entity, in whatever form, engaged in any Competing Business. For purposes of this Agreement "Competing Business" is any entity (including\nany of its subsidiaries or affiliates) that produces a product or performs a service that is the same as or similar to, may be substituted for, or is\nintended to be used for any of the same purposes as a product or service produced, performed or under development by the Company. However,\nnotwithstanding any provision in this Subsection III.A, you may work for a Competing Business whose business is diversified, provided your work\nfor the Competing Business does not involve selling, managing, overseeing, developing, creating, promoting, servicing, involvement in the finance\nand/or accounting of, or other responsibility for any product, process, service or technology that resembles or competes with the those of the\nCompany on which you have worked or gained Confidential Information during the last 24 months of your employment ("Restricted Product or\nService"). Prior to accepting such employment, you and the Competing Business must provide the Company with written assurances satisfactory to\nthe Company that you will not render services directly or indirectly, for the 12-month Restricted Period, in connection with any Restricted Product\nor\nService and that any necessary safeguards or procedures have been put in place to ensure that this does not happen. Nothing in this Agreement shall\nprevent you from owning not more than one percent of the total shares of all classes of stock outstanding of any publicly held entity engaged in a\nCompeting Business.\n2. This restriction applies in the United States and also applies in any foreign country or foreign territory in which the services you will\nprovide could enhance the use or marketability of a Restricted Product or Service, use the Company's goodwill, or otherwise interfere with any of\nthe Company's protectable interests. Notwithstanding any other provision of this Subsection III.A, if at the time of separation from employment,\nyour primary area of responsibility involves sale of products within a certain geographic area, then the restrictions set forth in this Subsection III.A\nshall include and be limited to: (a) the geographic area that, directly or indirectly, was covered by either you or by employees, distributors, agents or\nrepresentatives who reported to you at any time during the 24-month period preceding your separation from employment; and/or (b) any geographic\narea in which you provided services, whether directly or indirectly, at any time during such 24-month period preceding separation from employment.\n3. If despite diligent and aggressive effort, after separation from employment for any reason you are unable to obtain employment\nconsistent with your education or training solely because of the provisions of this Subsection III.A, then such prohibition shall bind you only if and\nas long as the Company pays\nPage 3 of 6\nyou a sum equal to your monthly base salary in effect on your employment termination date for each month of such unemployment during the\n12-\nmonth Restricted Period. You will be eligible to receive this pay only if the Company determines, in its sole discretion, that you have provided\ninformation to the Company substantiating your efforts, the fact that your inability to find employment is due exclusively to the provisions of this\nSubsection III.A, and any other information that the Company deems relevant. For purposes of this provision "base salary" excludes bonuses, stock\noptions, restricted stock/share units, performance share units, commissions, incentive pay or other similar compensation or benefits and is subject to\nregular deductions for income taxes, Social Security and Medicare taxes and other deductions required by law. For each month of unemployment\nin\nwhich you receive payment under this provision, you must provide evidence that you have diligently and aggressively sought employment, and\nfailure to do so or to accept any reasonable offer, as determined in the sole discretion of the Company, will result in discontinuation of payments.\nPayments under this provision will be reduced by any other amounts that you receive during this period (including but not limited to unemployment\ncompensation, severance, and income earned as an employee, consultant or contractor from any employer or organization), and failure to disclose\nsuch amounts shall result in the discontinuation of payments and the Company shall have the right to recover prior payments made to you pursuant\nto Subsection III.A. The Company retains the sole right and discretion to determine whether you have engaged in reasonable efforts to secure\na\nposition that is not in violation of Subsection III.A, and whether the failure to find a position is due to the restrictions in that Subsection. In addition,\nyou will not be eligible for payment under this provision if you have (a) breached your duty of loyalty to the Company, (b) breached any provision\nof\nthis Agreement, (c) breached any other agreement with the Company, including a breach of any Company rule or policy, (d) been terminated for\nCause (as hereinafter defined or as defined in any applicable Company plan or agreement), or (e) otherwise acted in bad faith or contrary to law. For\npurposes of this provision, "Cause" means any act of gross negligence; any act of misconduct; any fraudulent act or misrepresentation;\nviolation\nof\napplicable law; any act involving dishonesty or moral turpitude; and/or refusal to comply with any of the Company's reasonable directions,\nprocedures or policies.\nB. Non-Solicitation of Customers. During your employment and for a period of twelve (12) months after your separation from employment for\nany reason from the Company (the "Restricted Period"), you will not solicit, induce, attempt to induce, or provide any services to any current\nCompany Customer (defined as any Customer of the Company with whom you had dealings and/or for whom you performed services during the last\ntwenty-four (24) months of your employment with Company) to do business with you on your own behalf or on behalf of any Competing Business.\nC. Non-Solicitation of Employees. During the duration of your employment and for a period of twelve (12) months after your separation from\nemployment for any reason from the Company (the "Restricted Period"), you will not solicit, interfere with, encourage or endeavor to cause any\nother employee or independent contractor of the Company to leave his/her employment (or independent contractor assignment) with the Company.\nD. Acknowledgements:\n1. You acknowledge that the Company's legitimate business interests include but are not limited to protecting trade secrets and secret,\nproprietary or confidential information (including but not limited to trade secrets as defined by applicable statutes and Confidential Information as\ndefined in Section I of this Agreement), knowledge and data; protecting customer lists; protecting customer relationships; protecting goodwill; and\nprotecting time and expense of training employees. You agree that each restriction in this Agreement is reasonable as to the time, territory, and\nline\nof business, and is reasonably necessary to protect the Company's legitimate business interests.\n2. You acknowledge that Covidien is a large global healthcare company which researches, develops and supplies a large variety of\nhealthcare products and services including but not limited to medical devices, medical supplies, imaging solutions and pharmaceuticals all over the\nworld. As such, your position gives you access to highly confidential and proprietary global business related company strategies and information,\nand you acknowledge that global geographic restrictions are reasonable.\nPage 4 of 6\n3. You acknowledge that your breach of any obligation under this Agreement will constitute immediate and irreparable damage to the\nCompany, which cannot be fully and adequately compensated in money damages and which will warrant preliminary and other injunctive relief, an\norder for specific performance, and other equitable relief. Further, you understand other action may be taken and remedies enforced against you,\nincluding but not limited to money damages and forfeiture of the FY 2009 Equity Grant which you received as consideration for this Agreement.\nYou will indemnify and hold the Company harmless from all costs (including all reasonable attorneys fees), damages and liabilities the Company\nincurs as a result of your breach of any provision of this Agreement. You further acknowledge that your general knowledge and skill are such that\nenforcement of Sections I, II and III of this Agreement by injunction will not prevent you from earning a livelihood.\n4. You acknowledge that if the Company determines, in its sole discretion, that you violated any covenant set forth in this Agreement\n("Company Determination"), then the Restricted Period will be extended for a period of time equal to the period of time that you are in violation of\nthe Agreement, to the extent allowed by law. In addition, any portion of the FY 2009 Equity Grant that has not vested (with respect to restricted\nstock units or performance share units) or that you have not exercised (with respect to stock options, whether vested or unvested) on the Company\nDetermination date will immediately be rescinded, and you will forfeit any rights you have with respect to the unvested or unexercised portion of the\nFY 2009 Equity Grant. Also, you hereby agree and promise to deliver to the Company, immediately upon the Company Determination date, shares\n(or, in the discretion of the Company, cash) equal in value to the amount of any profit you realized upon the exercise of any stock options or the\nvesting of any restricted stock units or performance share units (all of which being awarded as part of the FY 2009 Equity Grant) that occurred\nduring the period that begins 12 months immediately prior to your termination of employment and ends on the Company Determination date.\nIV. GENERAL PROVISIONS\nA. If you contend that any restriction on activities imposed under Sections I, II. or III. of this Agreement is not enforceable, does not apply\nto\nan activity in which you intend to engage, or should not be enforced against you, you will notify the Vice President of Human Resources for your\nGlobal Business Unit (or if you work in a corporate function, the Human Resources Vice President for Corporate) in writing at least 14 days before\nengaging in such activity so that the Company and you may address and resolve any such issues.\nB. This Agreement, along with any agreement that you have previously signed regarding non-disclosure of information and/or inventions,\ncontains the entire understanding between the parties with respect to the subject matter within each agreement. This Agreement may not be modified\nor amended except by an agreement in writing signed by both parties.\nC. The headings in this Agreement are included for convenience of reference, and in the event of any conflict between such headings and the\ntext of this Agreement, the text will control.\nD. The invalidity or unenforceability of any provision of this Agreement as applied to a particular occurrence or circumstance or otherwise\nshall not affect the validity, enforceability, and applicability of any other provision of this Agreement. Indeed, the Company and you ask any\nreviewing court to reform, rewrite, revise, edit or blue pencil (strike through the least amount of words, phrases, or sections) any provision in the\nAgreement determined to be unenforceable for any reason to make the Agreement enforceable.\nE. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, affiliated entities,\nassigns, heirs, and personal representatives; provided, however, that you may not assign any of your rights, title or interest in this Agreement.\nSpecifically, any respective successors, assigns, heirs, and personal representatives, parent, subsidiary or affiliated entity of the Company shall have\nthe right to the enforcement of the restrictive covenants contained herein.\nF. The Company's failure to insist upon your strict compliance with any provision of this Agreement shall not be deemed a waiver of such\nprovision or of any other provision in this Agreement.\nPage 5 of 6\nG. You understand and agree that the Company may notify anyone employing you or evidencing an intent to employ you after your separation\nfrom employment for any reason as to the existence of the provisions of this Agreement. You also agree to (a) disclose this Agreement to any\nprospective employer prior to accepting employment during any Restrictive Period provided in this Agreement and (b) inform the Company at the\ntime you give notice of separation from employment, of the identity of your new employer and of the job title and responsibilities.\nH. The Company has its principal place of business in Massachusetts. The validity, performance, construction and effect of this Agreement\nshall be construed, enforced and governed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of laws\nprinciples. You irrevocably consent to personal jurisdiction in the state courts of Massachusetts and the U.S. District Court for the District of\nMassachusetts for any action arising out of this Agreement, regardless of where you reside or perform duties.\nI. This Agreement, or certain portions thereof, will not be enforced where applicable law, regulations or professional rules prohibit or limit\nenforceability. Nothing in this provision shall limit the enforceability of the Choice of Law, Jurisdiction and Venue provision in Subsection IV.H.\nJ. Nothing in this Agreement shall be deemed to confer on you any rights with respect to the duration of your employment with the Company.\nYOU UNDERSTAND AND AGREE THAT YOUR EMPLOYMENT RELATIONSHIP WITH THE COMPANY IS TERMINABLE AT WILL BY\nEITHER THE COMPANY OR YOU, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT NOTICE, AND NOTHING IN THIS\nAGREEMENT ALTERS THAT AT-WILL RELATIONSHIP.\nK. You acknowledge and agree that all of your obligations herein shall survive and be a condition of any change in your employment status,\nwhether in the form of a promotion or a change in job title, compensation, responsibilities, or any other aspect of your employment. You further\nagree that your obligations hereunder will survive such change in your employment status without the need for you to re-execute this or a similar\nagreement or to otherwise re-affirm these obligations. Nonetheless, you may be asked to re-execute this or a similar agreement or to otherwise re-\naffirm these obligations as a condition of a promotion, and you agree to do so if asked.\nI ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT; UNDERSTAND MY OBLIGATIONS UNDER THIS\nAGREEMENT; SIGN IT VOLUNTARILY, AND INTEND TO BE LEGALLY BOUND BY THIS AGREEMENT.\nEMPLOYEE\nSignature\nDate\nPrinted Name\nCOMPANY\nSignature\nDate\nPrinted Name\nTitle\nPage 6 of 6	EX-10.4 2 dex104.htm FORM OF NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.4\nNON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (hereinafter “Agreement”), dated and\neffective as of the date that you,\n, sign this Agreement, describes various conditions of your employment, including the obligations owed\nto Tyco Healthcare Group LP d/b/a Covidien and any of its parents, subsidiaries, successors, assigns or affiliated entities (hereinafter “Company”) by\nyou regarding competition with Company, the hiring of Company’s employees, solicitation of Company’s customers, and the maintenance of\nconfidential information important to Company’s business.\nCONSIDERATION\nYou acknowledge that the Company is engaged in a highly competitive industry. You further acknowledge that, as part of your employment\nwith the Company, you will have access to and/or gain knowledge of trade secrets and “Confidential Information” (as defined below) that is vital to\nthe interests and success of the Company.\nIn exchange for this Agreement, the Company awarded to you [number] non-qualified stock options, [number] restricted stock units and\n[number] performance share units on December 1, 2008 (collectively, “FY 2009 Equity Grant”) as consideration for your promises and contractual\nobligations as specified in this Agreement. You acknowledge that this FY 2009 Equity Grant constitutes adequate consideration even before it vests\nand regardless of the monetary value that results. As further consideration for this Agreement, and contemporaneous with its signing, the Company\nagrees to provide you with knowledge of its trade secrets and Confidential Information, with specialized, business-related education and training\nregarding the Company’s methodologies and business strategies, which will enable you to perform your job with the Company, with supplies and\nmaterials necessary for you to perform your job with the Company, and with goodwill in customer and other business relationships. You\nacknowledge that all of these items are necessary and desirable for your personal success as an employee of the Company.\nYou acknowledge that you are not previously or otherwise already entitled to the consideration described herein in exchange for the\nagreements specified herein. In exchange for this consideration and as a condition of your employment or continued employment if you are an\nexisting employee, you agree to the following.\nI. CONFIDENTIAL INFORMATION\nA. Nondisclosure of Confidential Information. You agree that during your employment with the Company and at any time thereafter, you will\nnot disclose to any other person or organization, or make or permit any use of, any of the Company’s Confidential Information. Additionally, the\nCompany specifically reserves its rights under any applicable common or statutory law regarding trade secrets, and prohibits disclosure and/or use of\ninformation which meets the definition of trade secrets under these common or statutory laws.\nB. “Confidential Information” Defined. “Confidential Information” means information in whatever form, including but not limited to hard\ncopy, electronically stored or in your memory, related to the operation of the Company that is not generally known to or readily ascertainable by\nother persons who might seek or accept such information for their own business use. The following is a non-exclusive list of information that\nconstitutes Confidential Information meeting the above definition: (1) information of a technical nature such as inventions; methods; processes;\ntechniques; ideas; data; equipment; computer programs; developments; designs; and technical expertise and know-how developed by the Company;\n(2) information of a commercial nature such as trademarks; information about costs, purchasing, profits, prices, markets, sales, contracts, and selling\nstrategies; lists of customers and employees; proposals made to current or prospective clients or customers or other information contained in bids or\noffers to such clients or customers; the arrangements and/or agreement, pricing, layout, design and implementation of client and/or customer-specific\nprojects; the identity of vendors and vendor pricing information; financial, marketing and sales information; and (3) information of a strategic nature\nsuch as future developments or strategies pertaining to research, development, marketing and sales; and other similar matters concerning the\nCompany’s planning.\nPage1of6\nC. Return of Confidential Information. Upon your separation from employment for any reason, the termination of your access to any\nConfidential Information or upon request by the Company, you shall return to the Company all electronic and hard-copy documents and materials\nbelonging to the Company, whether kept at your business office, personal residence or otherwise, including all materials containing or relating to any\nConfidential Information in any written or tangible form that you may have in your possession or control and including electronic equipment. After\nreturning the materials described in the preceding sentence to the Company, you shall not retain any copies of any such materials.\nD. Confidential Information of Clients and Vendors. You acknowledge that it is essential to the Company’s continued success to maintain the\nconfidentiality of all client and vendor information and trade secrets. Therefore, you agree not to use or disclose any confidential client or vendor\ninformation except as may be needed to conduct the Company’s business for the specific client or vendor. Upon your separation from employment\nwith the Company, you agree to deliver to an appropriate representative of the Company, without retaining any copies, notes or excerpts thereof, any\nand all documents and information that reference client or vendor information.\nE. Third-Party Confidentiality Agreements. You acknowledge that the Company from time to time may have agreements with other persons or\nentities that impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements, the\nconfidential nature of such work, or information about or owned by such person or entity. You agree to be bound by all such obligations and\nrestrictions as are made known to you and to take all action necessary to discharge the obligations of the Company under such agreements.\nII. INVENTIONS\nA. You shall promptly disclose to the Company all Inventions (as defined in Subsection II.B), which are made or conceived by you, either\nalone or with others, during the term of your employment with the Company, whether or not during working hours. Such Inventions directly or\nindirectly relate to matters within the scope of your duties or field of responsibility during your employment with the Company, or are based on your\nknowledge of the actual or anticipated business or interests of the Company, or are aided by the use of time, materials, facilities, or information of\nthe Company. You will not assert any rights under or to any Inventions as having been made or acquired by you prior to being employed by the\nCompany unless such Inventions have been identified to the Company in writing on a document signed by you at the time of hire. In addition, in\norder to avoid any dispute as to the date on which Inventions were made or conceived by you, they shall be deemed to have been made or conceived\nduring your employment with the Company if you take affirmative steps to have them reduced to practice either during the term of your employment\nor within one year after separation from employment.\nB. Herein, “Invention” means, whether or not patentable or copyrightable, the conception, discovery or reduction to practice of any new idea,\ntechnology, device, method, design, trade secret, composition of matter or any improvement thereto, including but not limited to any new articles of\nmanufacture or any improvement to existing articles of manufacture, any new apparatus or processes/methods for making or using a composition of\nmatter or article of manufacture, any computer software or any designs relating thereto, which relate to the Company’s actual or anticipated business\nor research activities or are suggested by or which result directly or indirectly from use of the Company’s information, time, materials, or facilities.\nC. You agree that all Inventions that are, or are deemed to be, made or conceived by you during employment with the Company shall, to the\nextent permitted by law, be the exclusive property of the Company, and you hereby assign to the Company your entire worldwide right, title, and\ninterest in and to any and all such Inventions. Whenever requested to do so by the Company, you shall execute any applications, assignments, or\nother instruments which the Company may consider necessary or advisable to apply for and obtain letters patent or copyrights in the United States or\nin any foreign country, or to otherwise record or protect the\nPage2of6\nCompany’s interest in such Inventions. In the event that you refuse to sign such an application, assignment, or other instrument, or, whether because\nof your physical or mental incapacity or for any other reason whatsoever, the Company is otherwise unable, after reasonable effort, to secure your\nsignature on any such application, assignment, or other instrument, you hereby irrevocably appoint the Company and its duly authorized officers and\nagents as your agent and attorney-in-fact to act for and in your behalf and stead to execute and file any such applications, assignments, and\ninstruments and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyrights, and other analogous\nprotections with the same legal force and effect as if executed by you. The obligations of this Subsection shall continue perpetually beyond the\nperiod of your employment with the Company and are not modified by any incentive payments made for an Invention or otherwise subject to any\nprovisions of a Company patent incentive award policy as may change from time to time.\nIII. RESTRICTIVE COVENANTS\nFor the good and valuable consideration recited herein, the receipt and sufficiency of which is hereby acknowledged, and in order to protect\nthe Company’s legitimate business interests, you agree as follows:\nA. Non-Competition:\n1. During your employment with the Company and for a period of twelve (12) months after your separation from employment for any\nreason (the “Restricted Period”), you will not, directly or indirectly, own, manage, operate, control, be employed by or otherwise provide services\n(whether as an employee consultant, independent contractor or otherwise, and whether or not for compensation) to any person, firm, corporation or\nother entity, in whatever form, engaged in any Competing Business. For purposes of this Agreement “Competing Business” is any entity (including\nany of its subsidiaries or affiliates) that produces a product or performs a service that is the same as or similar to, may be substituted for, or is\nintended to be used for any of the same purposes as a product or service produced, performed or under development by the Company. However,\nnotwithstanding any provision in this Subsection III.A, you may work for a Competing Business whose business is diversified, provided your work\nfor the Competing Business does not involve selling, managing, overseeing, developing, creating, promoting, servicing, involvement in the finance\nand/or accounting of, or other responsibility for any product, process, service or technology that resembles or competes with the those of the\nCompany on which you have worked or gained Confidential Information during the last 24 months of your employment (“Restricted Product or\nService”). Prior to accepting such employment, you and the Competing Business must provide the Company with written assurances satisfactory to\nthe Company that you will not render services directly or indirectly, for the 12-month Restricted Period, in connection with any Restricted Product or\nService and that any necessary safeguards or procedures have been put in place to ensure that this does not happen. Nothing in this Agreement shall\nprevent you from owning not more than one percent of the total shares of all classes of stock outstanding of any publicly held entity engaged in a\nCompeting Business.\n2. This restriction applies in the United States and also applies in any foreign country or foreign territory in which the services you will\nprovide could enhance the use or marketability of a Restricted Product or Service, use the Company’s goodwill, or otherwise interfere with any of\nthe Company’s protectable interests. Notwithstanding any other provision of this Subsection III.A, if at the time of separation from employment,\nyour primary area of responsibility involves sale of products within a certain geographic area, then the restrictions set forth in this Subsection III.A\nshall include and be limited to: (a) the geographic area that, directly or indirectly, was covered by either you or by employees, distributors, agents or\nrepresentatives who reported to you at any time during the 24-month period preceding your separation from employment; and/or (b) any geographic\narea in which you provided services, whether directly or indirectly, at any time during such 24-month period preceding separation from employment.\n3. If despite diligent and aggressive effort, after separation from employment for any reason you are unable to obtain employment\nconsistent with your education or training solely because of the provisions of this Subsection III.A, then such prohibition shall bind you only if and\nas long as the Company pays\nPage3of6\nyou a sum equal to your monthly base salary in effect on your employment termination date for each month of such unemployment during the 12-\nmonth Restricted Period. You will be eligible to receive this pay only if the Company determines, in its sole discretion, that you have provided\ninformation to the Company substantiating your efforts, the fact that your inability to find employment is due exclusively to the provisions of this\nSubsection III.A, and any other information that the Company deems relevant. For purposes of this provision “base salary” excludes bonuses, stock\noptions, restricted stock/share units, performance share units, commissions, incentive pay or other similar compensation or benefits and is subject to\nregular deductions for income taxes, Social Security and Medicare taxes and other deductions required by law. For each month of unemployment in\nwhich you receive payment under this provision, you must provide evidence that you have diligently and aggressively sought employment, and\nfailure to do so or to accept any reasonable offer, as determined in the sole discretion of the Company, will result in discontinuation of payments.\nPayments under this provision will be reduced by any other amounts that you receive during this period (including but not limited to unemployment\ncompensation, severance, and income earned as an employee, consultant or contractor from any employer or organization), and failure to disclose\nsuch amounts shall result in the discontinuation of payments and the Company shall have the right to recover prior payments made to you pursuant\nto Subsection III.A. The Company retains the sole right and discretion to determine whether you have engaged in reasonable efforts to secure a\nposition that is not in violation of Subsection III.A, and whether the failure to find a position is due to the restrictions in that Subsection. In addition,\nyou will not be eligible for payment under this provision if you have (a) breached your duty of loyalty to the Company, (b) breached any provision of\nthis Agreement, (c) breached any other agreement with the Company, including a breach of any Company rule or policy, (d) been terminated for\nCause (as hereinafter defined or as defined in any applicable Company plan or agreement), or (e) otherwise acted in bad faith or contrary to law. For\npurposes of this provision, “Cause” means any act of gross negligence; any act of misconduct; any fraudulent act or misrepresentation; violation of\napplicable law; any act involving dishonesty or moral turpitude; and/or refusal to comply with any of the Company’s reasonable directions,\nprocedures or policies.\nB. Non-Solicitation of Customers. During your employment and for a period of twelve (12) months after your separation from employment for\nany reason from the Company (the “Restricted Period”), you will not solicit, induce, attempt to induce, or provide any services to any current\nCompany Customer (defined as any Customer of the Company with whom you had dealings and/or for whom you performed services during the last\ntwenty-four (24) months of your employment with Company) to do business with you on your own behalf or on behalf of any Competing Business.\nC. Non-Solicitation of Employees. During the duration of your employment and for a period of twelve (12) months after your separation from\nemployment for any reason from the Company (the “Restricted Period”), you will not solicit, interfere with, encourage or endeavor to cause any\nother employee or independent contractor of the Company to leave his/her employment (or independent contractor assignment) with the Company.\nD. Acknowledgements:\n1. You acknowledge that the Company’s legitimate business interests include but are not limited to protecting trade secrets and secret,\nproprietary or confidential information (including but not limited to trade secrets as defined by applicable statutes and Confidential Information as\ndefined in Section I of this Agreement), knowledge and data; protecting customer lists; protecting customer relationships; protecting goodwill; and\nprotecting time and expense of training employees. You agree that each restriction in this Agreement is reasonable as to the time, territory, and line\nof business, and is reasonably necessary to protect the Company’s legitimate business interests.\n2. You acknowledge that Covidien is a large global healthcare company which researches, develops and supplies a large variety of\nhealthcare products and services including but not limited to medical devices, medical supplies, imaging solutions and pharmaceuticals all over the\nworld. As such, your position gives you access to highly confidential and proprietary global business related company strategies and information,\nand you acknowledge that global geographic restrictions are reasonable.\nPage4of6\n3. You acknowledge that your breach of any obligation under this Agreement will constitute immediate and irreparable damage to the\nCompany, which cannot be fully and adequately compensated in money damages and which will warrant preliminary and other injunctive relief, an\norder for specific performance, and other equitable relief. Further, you understand other action may be taken and remedies enforced against you,\nincluding but not limited to money damages and forfeiture of the FY 2009 Equity Grant which you received as consideration for this Agreement.\nYou will indemnify and hold the Company harmless from all costs (including all reasonable attorneys fees), damages and liabilities the Company\nincurs as a result of your breach of any provision of this Agreement. You further acknowledge that your general knowledge and skill are such that\nenforcement of Sections I, II and III of this Agreement by injunction will not prevent you from earning a livelihood.\n4. You acknowledge that if the Company determines, in its sole discretion, that you violated any covenant set forth in this Agreement\n(“Company Determination”), then the Restricted Period will be extended for a period of time equal to the period of time that you are in violation of\nthe Agreement, to the extent allowed by law. In addition, any portion of the FY 2009 Equity Grant that has not vested (with respect to restricted\nstock units or performance share units) or that you have not exercised (with respect to stock options, whether vested or unvested) on the Company\nDetermination date will immediately be rescinded, and you will forfeit any rights you have with respect to the unvested or unexercised portion of the\nFY 2009 Equity Grant. Also, you hereby agree and promise to deliver to the Company, immediately upon the Company Determination date, shares\n(or, in the discretion of the Company, cash) equal in value to the amount of any profit you realized upon the exercise of any stock options or the\nvesting of any restricted stock units or performance share units (all of which being awarded as part of the FY 2009 Equity Grant) that occurred\nduring the period that begins 12 months immediately prior to your termination of employment and ends on the Company Determination date.\nIV. GENERAL PROVISIONS\nA. If you contend that any restriction on activities imposed under Sections I, II. or III. of this Agreement is not enforceable, does not apply to\nan activity in which you intend to engage, or should not be enforced against you, you will notify the Vice President of Human Resources for your\nGlobal Business Unit (or if you work in a corporate function, the Human Resources Vice President for Corporate) in writing at least 14 days before\nengaging in such activity so that the Company and you may address and resolve any such issues.\nB. This Agreement, along with any agreement that you have previously signed regarding non-disclosure of information and/or inventions,\ncontains the entire understanding between the parties with respect to the subject matter within each agreement. This Agreement may not be modified\nor amended except by an agreement in writing signed by both parties.\nC. The headings in this Agreement are included for convenience of reference, and in the event of any conflict between such headings and the\ntext of this Agreement, the text will control.\nD. The invalidity or unenforceability of any provision of this Agreement as applied to a particular occurrence or circumstance or otherwise\nshall not affect the validity, enforceability, and applicability of any other provision of this Agreement. Indeed, the Company and you ask any\nreviewing court to reform, rewrite, revise, edit or blue pencil (strike through the least amount of words, phrases, or sections) any provision in the\nAgreement determined to be unenforceable for any reason to make the Agreement enforceable.\nE. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, affiliated entities,\nassigns, heirs, and personal representatives; provided, however, that you may not assign any of your rights, title or interest in this Agreement.\nSpecifically, any respective successors, assigns, heirs, and personal representatives, parent, subsidiary or affiliated entity of the Company shall have\nthe right to the enforcement of the restrictive covenants contained herein.\nF. The Company’s failure to insist upon your strict compliance with any provision of this Agreement shall not be deemed a waiver of such\nprovision or of any other provision in this Agreement.\nPage5of6\nG. You understand and agree that the Company may notify anyone employing you or evidencing an intent to employ you after your separation\nfrom employment for any reason as to the existence of the provisions of this Agreement. You also agree to (a) disclose this Agreement to any\nprospective employer prior to accepting employment during any Restrictive Period provided in this Agreement and (b) inform the Company at the\ntime you give notice of separation from employment, of the identity of your new employer and of the job title and responsibilities.\nH. The Company has its principal place of business in Massachusetts. The validity, performance, construction and effect of this Agreement\nshall be construed, enforced and governed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of laws\nprinciples. You irrevocably consent to personal jurisdiction in the state courts of Massachusetts and the U.S . District Court for the District of\nMassachusetts for any action arising out of this Agreement, regardless of where you reside or perform duties.\nI. This Agreement, or certain portions thereof, will not be enforced where applicable law, regulations or professional rules prohibit or limit\nenforceability. Nothing in this provision shall limit the enforceability of the Choice of Law, Jurisdiction and Venue provision in Subsection IV.H .\nJ. Nothing in this Agreement shall be deemed to confer on you any rights with respect to the duration of your employment with the Company.\nYOU UNDERSTAND AND AGREE THAT YOUR EMPLOYMENT RELATIONSHIP WITH THE COMPANY IS TERMINABLE AT WILL BY\nEITHER THE COMPANY OR YOU, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT NOTICE, AND NOTHING IN THIS\nAGREEMENT ALTERS THAT AT-WILL RELATIONSHIP.\nK. You acknowledge and agree that all of your obligations herein shall survive and be a condition of any change in your employment status,\nwhether in the form of a promotion or a change in job title, compensation, responsibilities, or any other aspect of your employment. You further\nagree that your obligations hereunder will survive such change in your employment status without the need for you to re-execute this or a similar\nagreement or to otherwise re-affirm these obligations. Nonetheless, you may be asked to re-execute this or a similar agreement or to otherwise re-\naffirm these obligations as a condition of a promotion, and you agree to do so if asked.\nI ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT; UNDERSTAND MY OBLIGATIONS UNDER THIS\nAGREEMENT; SIGN IT VOLUNTARILY, AND INTEND TO BE LEGALLY BOUND BY THIS AGREEMENT.\nEMPLOYEE\nSignature\nDate\nPrinted Name\nCOMPANY\nSignature\nDate\nPrinted Name\nTitle\nPage6of6
e33d3ca6885f31faa68b2ab766afc86b.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm FORM OF NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nNON-DISCLOSURE, NON-SOLICITATION\nAND NON-COMPETITION\nAGREEMENT\nThis Non-Disclosure, Non-Solicitation and Non-Competition Agreement (the “Agreement”) is between TXU Corp., a Texas corporation, and\n(“Employee”).\nTXU Corp. and its Affiliates (“TXU”) are beginning a project which will involve the first development of lignite and coal fired electric\ngeneration in Texas in approximately 30 years and the first of such developments since the deregulation of the Texas electric power market (the\n“Project”);\nIn connection with the Project, TXU will provide Employee with certain Confidential Information (as defined below), including specialized\nknowledge and insight regarding the manner and method in which TXU plans to develop such coal and lignite fueled generation and operate that\nportion of its business, and Employee will have access to and use such Confidential Information to assist TXU in connection with the Project;\nThe Confidential Information that Employee will have access to is a valuable, special, proprietary and unique asset used by TXU in its\nbusinesses and TXU has taken and will continue to take steps to protect the Confidential Information from unauthorized disclosure, which is of\ncritical importance and value to TXU and provides TXU with a competitive advantage in connection with the Project; and\nTXU would suffer irreparable harm if Employee were to use or enable others to use such Confidential Information in competition with TXU in\nTexas or other system control areas where there is or will be competition in the supply of electric power.\nTHEREFORE, for and in consideration of Employee’s access to and receipt of TXU’s Confidential Information and the opportunity to\nparticipate in the Project and the mutual covenants of this Agreement, the receipt and adequacy of which are acknowledged, TXU and Employee\nagree as follows:\n1. Definitions. For purposes of this Agreement, the following words shall have the following meanings:\n(a) “Affiliate” shall mean any entity that, directly or indirectly, controls, is controlled by or is under common control with TXU.\n(b) “Confidential Information” means information (i) disclosed to or known by the Employee as a consequence or through his/her work in\nconnection with the Project; (ii) not generally known outside TXU; and (iii) which relates to any aspect of TXU’s business and development in\nconnection with the Project. Confidential Information includes all confidential and/or propriety information and/or trade secrets of TXU that has\nbeen and/or will be developed or used for the Project, including, but not limited to, information regarding suppliers, consultants, customers,\n1\nemployees, contractors and the electric generation industry not generally known to the public; strategies, methods, books, records and documents;\ntechnical information concerning products, equipment, services and processes; procurement procedures, pricing and pricing techniques; information\nconcerning past, current and prospective customers, investors and business affiliates (such as contact name, service provided, pricing, type and\namount of services used, financial data and/or other such information); pricing strategies and price curves; positions; plans or strategies for\nexpansion or acquisitions; budgets; research; financial and sales data (including budgets, forecasts and historical financial data); trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. Confidential Information also includes matters that Employee conceives or develops, as well as\nmatters Employee learns from other employees of TXU.\n(c) “Work Product” means all ideas, discoveries, programs, systems, methods, interfaces, protocols, databases, creations, artwork, articles,\nprogramming, processes, designs, inventions or improvements relating to technological matters, whether or not capable of being protected by patent,\ncopyright, trade secret or other intellectual property right.\n2. Non-Disclosure, Return of Property and Ownership of Work Product.\n(a) Employee agrees not to divulge, use, furnish, disclose or make accessible, directly or indirectly, for his/her own benefit or the benefit of any\nother person or entity, any Confidential Information for any reason or purpose whatsoever, except to the extent that disclosure or use of such\nConfidential Information is necessary to fulfill his/her responsibilities as an employee of TXU in connection with the Project. Employee’s\nobligations under this Section 2 with respect to any specific Confidential Information shall cease only when that specific portion of the Confidential\nInformation becomes publicly known, other than as a result of disclosure by Employee, in its entirety and without combining portions of such\ninformation obtained separately. This Section 2 shall continue in full force and effect after termination of Employee’s employment for any reason.\n(b) All memoranda, notes, lists, records, drawings, specifications and related documents and other documents or papers (and all copies thereof)\nrelating to or containing Confidential Information, including such items stored in electronic form or by any other means, made or compiled by or on\nbehalf of Employee, or made available to Employee, shall be property of TXU. Employee shall deliver such items to TXU promptly upon the\ntermination of Employee’s employment with TXU or at any other time upon TXU’s request and Employee shall not retain any electronic copies of\nany Confidential Information.\n(c) Employee acknowledges and agrees that all Work Product conceived by the Employee while employed by TXU, whether or not during\nregular working hours, provided such Work Product is related in some manner to the business of TXU, shall be owned and belong exclusively to\nTXU and that Employee shall have no personal interest in or right to use such Work Product. Employee shall, unless TXU otherwise agrees in\nwriting, and without additional compensation: (i) disclose promptly to TXU any and all Work Product, and business opportunities related to the\npresent and/or contemplated business of TXU (“Business Opportunities”); (ii) assign to TXU and comply with all\n2\nreasonable instructions of TXU regarding assigning, upon request, the entire rights to all such Work Product and Business Opportunities; (iii) give an\naffidavit and live testimony (as may be necessary or desirable in the sole and absolute discretion of TXU) in support of his/her inventorship or\ncreation in any appropriate case; and (iv) whenever requested to do so by TXU, execute any and all applications, assignments or other instruments\nthat TXU shall deem necessary to obtain, maintain, protect or vest in TXU the entire right, title and interest in and to such Work Product and\nBusiness Opportunities. This provision shall not apply to Work Product for which no equipment, supplies, facility or Confidential Information of\nTXU was used and which was developed entirely on Employee’s own time and (i) does not relate to (a) the business of TXU; or (b) TXU’s actual or\ndemonstrably anticipated business or development, or (ii) does not result from any work performed by Employee for TXU.\n3. Non-Solicitation and Non-Competition.\n(a) In order to protect the Confidential Information and in order to enforce Employee’s agreement not to disclose Confidential Information,\nEmployee and TXU agree that:\n(i) during Employee’s employment with TXU, and for the shorter of three (3) years after the termination of such employment or the\nperiod for which Employee received severance pay under the TXU Severance Plan in effect at the time of termination but in no event less than six\n(6) months, Employee shall not directly or indirectly, either for his/her own benefit or the benefit of any other person or entity, contribute\nEmployee’s knowledge to or work with, in any capacity that would or is likely to involve use or disclosure of Confidential Information, any venture,\nbusiness, association, trust or other organization which in any way competes with TXU in connection with the development, construction or\noperation of electric power generation plants or related facilities, including air quality control systems, in plants fueled by a solid fossil fuel\nincluding petroleum coke, lignite and coal in Texas, PJM Power Pool or any other system control area in the United States in which there is\ncompetition among generators of electric power and energy.\n(ii) during the term of Employee’s employment with TXU, and for three (3) years after the termination of such employment, Employee\nshall not\n(A) directly or indirectly request or advise any present or future TXU customers to cancel any contracts, or otherwise curtail their\ndealings, with TXU;\n(B) directly or indirectly request or advise any present or future TXU service provider or financial resource to withdraw, curtail,\nor cancel the furnishing of such service or resource to TXU; and\n(C) directly or indirectly induce or attempt to influence any employee of TXU to terminate his or her employment; interfere with\nthe relationship between TXU and its employees; or, employ or otherwise engage as an employee, independent contractor or otherwise any\nemployee of TXU.\nNotwithstanding anything to the contrary contained in this Section 3(a), Employee may own, directly or indirectly, securities of any entity traded on\nany national securities exchange or listed on the National Association of Securities Dealers Automated Quotation System if Employee does not,\ndirectly or indirectly, individually own 1% or more of any class of equity securities, or securities convertible into or exercisable or exchangeable for\n1% or more of any class of equity securities, of such entity.\n3\n(b) In the event of a breach by Employee of any covenant set forth in this Section 3, the term of such covenant shall be extended by the period\nof duration of such breach.\n(c) Until the termination of the period during which Employee’s activities are limited by this Agreement, Employee will, within ten (10) days\nafter accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association, advise TXU of\nthe identity of the new employee, client, partner or other person with whom Employee has become associated. TXU may serve notice upon each\nsuch person that Employee is bound by this Agreement and furnish each such person with a copy of this Agreement.\n(d) Employee and TXU agree that the non-competition provisions set forth in this Section 3 are ancillary to this Agreement, which is an\nenforceable agreement. Employee agrees that any association by Employee with a competitor of TXU during the Applicable Period may lead to\nEmployee’s unauthorized use of the Confidential Information, even if such use was unintentional. Because it would be impossible, as a practical\nmatter, to monitor, restrain or police Employee’s use of such Confidential Information other than through Employee’s covenants contained in this\nSection 3, Employee acknowledges that such restrictions are the narrowest method to protect TXU’s interests, and the narrowest method of enforcing\nconsideration for his/her receipt of Confidential Information.\n4. Notices. Any notices shall be in writing and shall be deemed given (a) when personally delivered, (b) when confirmed if delivered by\nfacsimile or similar device, or (c) when sent by certified mail, return receipt requested, addressed to the other party at the address provided below\nits/his/her signature to this Agreement, or at such other address as may be specified through these notice procedures.\n5. Assignment; Parties Bound. TXU reserves the right to assign all of its rights, powers and privileges under this Agreement, including,\nwithout limitation, the right to enforce all of the terms of this Agreement, to successors or between Affiliates of TXU or any person who acquires a\nmajority of the outstanding stock or all or substantially all of the assets of TXU. Employee shall not assign or otherwise delegate his obligations or\nduties under this Agreement to any other person. Any assignment or delegation in violation of this Agreement shall be null and void. Subject to the\nforegoing, this Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective heirs,\nexecutors, administrators, legal representatives, successors, and permitted assigns.\n6. Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH LAWS OF THE\nSTATE OF TEXAS.\n7. Non-Waiver of Breach. A waiver of a breach or default by another must be in writing and shall not be deemed a waiver of a default by a\nthird party or any subsequent default or breach of the same or any other provision of this Agreement.\n8. Severability; Reformation. If any provision of this Agreement, as applied to any party or to any circumstances, is held to be invalid or\nunenforceable, such holding will not affect any\n4\nother provision of this Agreement, the application of such provision to any other party or in any other circumstances or the validity or enforceability\nof this Agreement. If any such provision (including the limitations contained in Section 3 as to time, geographical area, and scope of activity to be\nrestrained) is so held to be unenforceable, the parties agree that the court or authority making such determination shall reform this Agreement\n(including by reducing the limitations contained in Section 3 as to time, geographical area and scope of activity to be restrained to the extent\nnecessary to cause such limitations to be reasonable and not otherwise impose a restraint that is greater than necessary to protect the goodwill and\nConfidential Information of TXU) so as to make such provision enforceable as reformed. In the event that an applicable court or authority would not\nhave the legal authority to take the actions described in the preceding sentence, the parties agree to negotiate in good faith to agree on a modified\nprovision that would, in so far as possible, reflect the original intent of this Agreement without violating applicable law.\n9. Remedies. The Employee recognizes and acknowledges the competitive and confidential nature of the Confidential Information and that\nirreparable damage will result to TXU if it is disclosed to any third party or is used for any purpose, other than as permitted by this Agreement. TXU\nand Employee further agree that money damages would not be a sufficient remedy for any breach of this Agreement by Employee and that such\ndamages would be difficult if not impossible to quantify. Accordingly, Employee agrees that TXU shall be entitled to an injunction or injunctions\nwithout the posting of any bond to prevent breaches or threatened breaches of this Agreement and/or to specific performance of this Agreement.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by Employee of this Agreement but shall be in addition to all other\nremedies available at law or equity to TXU.\n10. No Right to Employment. Nothing in this Agreement shall be construed as giving Employee any right of employment or continued\nemployment with TXU.\n11. Employee Acknowledgement. Employee acknowledges that (i) TXU is engaged in the business of owning, managing and operating certain\nsolid fuel and gas electric generation assets, (ii) TXU’s business is highly competitive, (iii) Employee will be given access to Confidential\nInformation of TXU that is a valuable, special, proprietary and unique asset used by TXU in its respective businesses, (iv) he/she will confirm, by\nseparate acknowledgement, receipt of Confidential Information in conjunction with the Project and (v) protection of such Confidential Information\nagainst unauthorized disclosure and use is of critical importance to TXU.\n[Remainder of page intentionally left blank]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.\nTXU CORP.\nBy:\nName:\nTitle:\nAddress: 1601 Bryan\nDallas, Texas 75201\nAttention: General Counsel\nFacsimile: (214) 812-6032\nBy:\n[Employee]\nAddress:\nDate:\nS-1	EX-10.1 2 dex101.htm FORM OF NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nNON-DISCLOSURE, NON-SOLICITATION\nAND NON-COMPETITION\nAGREEMENT\nThis Non-Disclosure, Non-Solicitation and Non-Competition Agreement (the “Agreement”) is between TXU Corp., a Texas corporation, and\n(“Employee”).\nTXU Corp. and its Affiliates (“TXU”) are beginning a project which will involve the first development of lignite and coal fired electric\ngeneration in Texas in approximately 30 years and the first of such developments since the deregulation of the Texas electric power market (the\n“Project”);\nIn connection with the Project, TXU will provide Employee with certain Confidential Information (as defined below), including specialized\nknowledge and insight regarding the manner and method in which TXU plans to develop such coal and lignite fueled generation and operate that\nportion of its business, and Employee will have access to and use such Confidential Information to assist TXU in connection with the Project;\nThe Confidential Information that Employee will have access to is a valuable, special, proprietary and unique asset used by TXU in its\nbusinesses and TXU has taken and will continue to take steps to protect the Confidential Information from unauthorized disclosure, which is of\ncritical importance and value to TXU and provides TXU with a competitive advantage in connection with the Project; and\nTXU would suffer irreparable harm if Employee were to use or enable others to use such Confidential Information in competition with TXU in\nTexas or other system control areas where there is or will be competition in the supply of electric power.\nTHEREFORE, for and in consideration of Employee’s access to and receipt of TXU’s Confidential Information and the opportunity to\nparticipate in the Project and the mutual covenants of this Agreement, the receipt and adequacy of which are acknowledged, TXU and Employee\nagree as follows:\n1. Definitions. For purposes of this Agreement, the following words shall have the following meanings:\n(a) “Affiliate” shall mean any entity that, directly or indirectly, controls, is controlled by or is under common control with TXU.\n(b) “Confidential Information” means information (i) disclosed to or known by the Employee as a consequence or through his/her work in\nconnection with the Project; (ii) not generally known outside TXU; and (iii) which relates to any aspect of TXU’s business and development in\nconnection with the Project. Confidential Information includes all confidential and/or propriety information and/or trade secrets of TXU that has\nbeen and/or will be developed or used for the Project, including, but not limited to, information regarding suppliers, consultants, customers,\n1\nemployees, contractors and the electric generation industry not generally known to the public; strategies, methods, books, records and documents;\ntechnical information concerning products, equipment, services and processes; procurement procedures, pricing and pricing techniques; information\nconcerning past, current and prospective customers, investors and business affiliates (such as contact name, service provided, pricing, type and\namount of services used, financial data and/or other such information); pricing strategies and price curves; positions; plans or strategies for\nexpansion or acquisitions; budgets; research; financial and sales data (including budgets, forecasts and historical financial data); trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. Confidential Information also includes matters that Employee conceives or develops, as well as\nmatters Employee learns from other employees of TXU.\n(c) “Work Product”’ means all ideas, discoveries, programs, systems, methods, interfaces, protocols, databases, creations, artwork, articles,\nprogramming, processes, designs, inventions or improvements relating to technological matters, whether or not capable of being protected by patent,\ncopyright, trade secret or other intellectual property right.\n2. Non-Disclosure, Return of Property and Ownership of Work Product.\n(a) Employee agrees not to divulge, use, furnish, disclose or make accessible, directly or indirectly, for his/her own benefit or the benefit of any\nother person or entity, any Confidential Information for any reason or purpose whatsoever, except to the extent that disclosure or use of such\nConfidential Information is necessary to fulfill his/her responsibilities as an employee of TXU in connection with the Project. Employee’s\nobligations under this Section 2 with respect to any specific Confidential Information shall cease only when that specific portion of the Confidential\nInformation becomes publicly known, other than as a result of disclosure by Employee, in its entirety and without combining portions of such\ninformation obtained separately. This Section 2 shall continue in full force and effect after termination of Employee’s employment for any reason.\n(b) All memoranda, notes, lists, records, drawings, specifications and related documents and other documents or papers (and all copies thereof)\nrelating to or containing Confidential Information, including such items stored in electronic form or by any other means, made or compiled by or on\nbehalf of Employee, or made available to Employee, shall be property of TXU. Employee shall deliver such items to TXU promptly upon the\ntermination of Employee’s employment with TXU or at any other time upon TXU’s request and Employee shall not retain any electronic copies of\nany Confidential Information.\n(c) Employee acknowledges and agrees that all Work Product conceived by the Employee while employed by TXU, whether or not during\nregular working hours, provided such Work Product is related in some manner to the business of TXU, shall be owned and belong exclusively to\nTXU and that Employee shall have no personal interest in or right to use such Work Product. Employee shall, unless TXU otherwise agrees in\nwriting, and without additional compensation: (i) disclose promptly to TXU any and all Work Product, and business opportunities related to the\npresent and/or contemplated business of TXU (“Business Opportunities™); (ii) assign to TXU and comply with all\n2\nreasonable instructions of TXU regarding assigning, upon request, the entire rights to all such Work Product and Business Opportunities; (iii) give an\naffidavit and live testimony (as may be necessary or desirable in the sole and absolute discretion of TXU) in support of his/her inventorship or\ncreation in any appropriate case; and (iv) whenever requested to do so by TXU, execute any and all applications, assignments or other instruments\nthat TXU shall deem necessary to obtain, maintain, protect or vest in TXU the entire right, title and interest in and to such Work Product and\nBusiness Opportunities. This provision shall not apply to Work Product for which no equipment, supplies, facility or Confidential Information of\nTXU was used and which was developed entirely on Employee’s own time and (i) does not relate to (a) the business of TXU; or (b) TXU’s actual or\ndemonstrably anticipated business or development, or (ii) does not result from any work performed by Employee for TXU.\n3. Non-Solicitation and Non-Competition.\n(a) In order to protect the Confidential Information and in order to enforce Employee’s agreement not to disclose Confidential Information,\nEmployee and TXU agree that:\n(i) during Employee’s employment with TXU, and for the shorter of three (3) years after the termination of such employment or the\nperiod for which Employee received severance pay under the TXU Severance Plan in effect at the time of termination but in no event less than six\n(6) months, Employee shall not directly or indirectly, either for his/her own benefit or the benefit of any other person or entity, contribute\nEmployee’s knowledge to or work with, in any capacity that would or is likely to involve use or disclosure of Confidential Information, any venture,\nbusiness, association, trust or other organization which in any way competes with TXU in connection with the development, construction or\noperation of electric power generation plants or related facilities, including air quality control systems, in plants fueled by a solid fossil fuel\nincluding petroleum coke, lignite and coal in Texas, PJM Power Pool or any other system control area in the United States in which there is\ncompetition among generators of electric power and energy.\n(ii) during the term of Employee’s employment with TXU, and for three (3) years after the termination of such employment, Employee\nshall not\n(A) directly or indirectly request or advise any present or future TXU customers to cancel any contracts, or otherwise curtail their\ndealings, with TXU;\n(B) directly or indirectly request or advise any present or future TXU service provider or financial resource to withdraw, curtail,\nor cancel the furnishing of such service or resource to TXU; and\n(C) directly or indirectly induce or attempt to influence any employee of TXU to terminate his or her employment; interfere with\nthe relationship between TXU and its employees; or, employ or otherwise engage as an employee, independent contractor or otherwise any\nemployee of TXU.\nNotwithstanding anything to the contrary contained in this Section 3(a), Employee may own, directly or indirectly, securities of any entity traded on\nany national securities exchange or listed on the National Association of Securities Dealers Automated Quotation System if Employee does not,\ndirectly or indirectly, individually own 1% or more of any class of equity securities, or securities convertible into or exercisable or exchangeable for\n1% or more of any class of equity securities, of such entity.\n(b) In the event of a breach by Employee of any covenant set forth in this Section 3, the term of such covenant shall be extended by the period\nof duration of such breach.\n(c) Until the termination of the period during which Employee’s activities are limited by this Agreement, Employee will, within ten (10) days\nafter accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association, advise TXU of\nthe identity of the new employee, client, partner or other person with whom Employee has become associated. TXU may serve notice upon each\nsuch person that Employee is bound by this Agreement and furnish each such person with a copy of this Agreement.\n(d) Employee and TXU agree that the non-competition provisions set forth in this Section 3 are ancillary to this Agreement, which is an\nenforceable agreement. Employee agrees that any association by Employee with a competitor of TXU during the Applicable Period may lead to\nEmployee’s unauthorized use of the Confidential Information, even if such use was unintentional. Because it would be impossible, as a practical\nmatter, to monitor, restrain or police Employee’s use of such Confidential Information other than through Employee’s covenants contained in this\nSection 3, Employee acknowledges that such restrictions are the narrowest method to protect TXU’s interests, and the narrowest method of enforcing\nconsideration for his/her receipt of Confidential Information.\n4. Notices. Any notices shall be in writing and shall be deemed given (a) when personally delivered, (b) when confirmed if delivered by\nfacsimile or similar device, or (c) when sent by certified mail, return receipt requested, addressed to the other party at the address provided below\nits/his/her signature to this Agreement, or at such other address as may be specified through these notice procedures.\n5. Assignment; Parties Bound. TXU reserves the right to assign all of its rights, powers and privileges under this Agreement, including,\nwithout limitation, the right to enforce all of the terms of this Agreement, to successors or between Affiliates of TXU or any person who acquires a\nmajority of the outstanding stock or all or substantially all of the assets of TXU. Employee shall not assign or otherwise delegate his obligations or\nduties under this Agreement to any other person. Any assignment or delegation in violation of this Agreement shall be null and void. Subject to the\nforegoing, this Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective heirs,\nexecutors, administrators, legal representatives, successors, and permitted assigns.\n6. Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH LAWS OF THE\nSTATE OF TEXAS.\n7. Non-Waiver of Breach. A waiver of a breach or default by another must be in writing and shall not be deemed a waiver of a default by a\nthird party or any subsequent default or breach of the same or any other provision of this Agreement.\n8. Severability; Reformation. If any provision of this Agreement, as applied to any party or to any circumstances, is held to be invalid or\nunenforceable, such holding will not affect any\nother provision of this Agreement, the application of such provision to any other party or in any other circumstances or the validity or enforceability\nof this Agreement. If any such provision (including the limitations contained in Section 3 as to time, geographical area, and scope of activity to be\nrestrained) is so held to be unenforceable, the parties agree that the court or authority making such determination shall reform this Agreement\n(including by reducing the limitations contained in Section 3 as to time, geographical area and scope of activity to be restrained to the extent\nnecessary to cause such limitations to be reasonable and not otherwise impose a restraint that is greater than necessary to protect the goodwill and\nConfidential Information of TXU) so as to make such provision enforceable as reformed. In the event that an applicable court or authority would not\nhave the legal authority to take the actions described in the preceding sentence, the parties agree to negotiate in good faith to agree on a modified\nprovision that would, in so far as possible, reflect the original intent of this Agreement without violating applicable law.\n9. Remedies. The Employee recognizes and acknowledges the competitive and confidential nature of the Confidential Information and that\nirreparable damage will result to TXU if it is disclosed to any third party or is used for any purpose, other than as permitted by this Agreement. TXU\nand Employee further agree that money damages would not be a sufficient remedy for any breach of this Agreement by Employee and that such\ndamages would be difficult if not impossible to quantify. Accordingly, Employee agrees that TXU shall be entitled to an injunction or injunctions\nwithout the posting of any bond to prevent breaches or threatened breaches of this Agreement and/or to specific performance of this Agreement.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by Employee of this Agreement but shall be in addition to all other\nremedies available at law or equity to TXU.\n10. No Right to Employment. Nothing in this Agreement shall be construed as giving Employee any right of employment or continued\nemployment with TXU.\n11. Employee Acknowledgement. Employee acknowledges that (i) TXU is engaged in the business of owning, managing and operating certain\nsolid fuel and gas electric generation assets, (ii) TXU’s business is highly competitive, (iii) Employee will be given access to Confidential\nInformation of TXU that is a valuable, special, proprietary and unique asset used by TXU in its respective businesses, (iv) he/she will confirm, by\nseparate acknowledgement, receipt of Confidential Information in conjunction with the Project and (v) protection of such Confidential Information\nagainst unauthorized disclosure and use is of critical importance to TXU.\n[Remainder of page intentionally left blank]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. S-1\nTXU CORP.\nBy:\nName:\nTitle:\nAddress: 1601 Bryan\nDallas, Texas 75201\nAttention: General Counsel\nFacsimile: (214) 812-6032\nBy:\n[Employee]\nAddress:\nDate:	EX-10.1 2 dex101.htm FORM OF NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nNON-DISCLOSURE, NON-SOLICITATION\nAND NON-COMPETITION\nAGREEMENT\nThis Non-Disclosure, Non-Solicitation and Non-Competition Agreement (the "Agreement") is between TXU Corp., a Texas corporation, and\n("Employee").\nTXU Corp. and its Affiliates ("TXU") are beginning a project which will involve the first development of lignite and coal fired electric\ngeneration in Texas in approximately 30 years and the first of such developments since the deregulation of the Texas electric power market (the\n"Project");\nIn connection with the Project, TXU will provide Employee with certain Confidential Information (as defined below), including specialized\nknowledge and insight regarding the manner and method in which TXU plans to develop such coal and lignite fueled generation and operate that\nportion of its business, and Employee will have access to and use such Confidential Information to assist TXU in connection with the Project;\nThe Confidential Information that Employee will have access to is a valuable, special, proprietary and unique asset used by TXU in its\nbusinesses and TXU has taken and will continue to take steps to protect the Confidential Information from unauthorized disclosure, which is of\ncritical importance and value to TXU and provides TXU with a competitive advantage in connection with the Project; and\nTXU would suffer irreparable harm if Employee were to use or enable others to use such Confidential Information in competition with TXU in\nTexas or other system control areas where there is or will be competition in the supply of electric power.\nTHEREFORE, for and in consideration of Employee's access to and receipt of TXU's Confidential Information and the opportunity to\nparticipate in the Project and the mutual covenants of this Agreement, the receipt and adequacy of which are acknowledged, TXU and Employee\nagree as follows:\n1. Definitions. For purposes of this Agreement, the following words shall have the following meanings:\n(a) "Affiliate" shall mean any entity that, directly or indirectly, controls, is controlled by or is under common control with TXU.\n(b) "Confidential Information" means information (i) disclosed to or known by the Employee as a consequence or through his/her work in\nconnection with the Project; (ii) not generally known outside TXU; and (iii) which relates to any aspect of TXU's business and development in\nconnection with the Project. Confidential Information includes all confidential and/or propriety information and/or trade secrets of TXU that has\nbeen and/or will be developed or used for the Project, including, but not limited to, information regarding suppliers, consultants, customers,\n1\nemployees, contractors and the electric generation industry not generally known to the public; strategies, methods, books, records and documents;\ntechnical information concerning products, equipment, services and processes; procurement procedures, pricing and pricing techniques; information\nconcerning past, current and prospective customers, investors and business affiliates (such as contact name, service provided, pricing, type and\namount of services used, financial data and/or other such information); pricing strategies and price curves; positions; plans or strategies for\nexpansion or acquisitions; budgets; research; financial and sales data (including budgets, forecasts and historical financial data); trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. Confidential Information also includes matters that Employee conceives or develops, as well\nas\nmatters Employee learns from other employees of TXU.\n(c) "Work Product" means all ideas, discoveries, programs, systems, methods, interfaces, protocols, databases, creations, artwork, articles,\nprogramming, processes, designs, inventions or improvements relating to technological matters, whether or not capable of being protected by patent,\ncopyright, trade secret or other intellectual property right.\n2. Non-Disclosure, Return of Property. and Ownership of Work Product.\n(a) Employee agrees not to divulge, use, furnish, disclose or make accessible, directly or indirectly, for his/her own benefit or the benefit of any\nother person or entity, any Confidential Information for any reason or purpose whatsoever, except to the extent that disclosure or use of such\nConfidential Information is necessary to fulfill his/her responsibilities as an employee of TXU in connection with the Project. Employee's\nobligations\nunder this Section 2 with respect to any specific Confidential Information shall cease only when that specific portion of the Confidential\nInformation becomes publicly known, other than as a result of disclosure by Employee, in its entirety and without combining portions of such\ninformation obtained separately. This Section 2 shall continue in full force and effect after termination of Employee's employment for any reason.\n(b) All memoranda, notes, lists, records, drawings, specifications and related documents and other documents or papers (and all copies thereof)\nrelating to or containing Confidential Information, including such items stored in electronic form or by any other means, made or compiled by or on\nbehalf of Employee, or made available to Employee, shall be property of TXU. Employee shall deliver such items to TXU promptly upon the\ntermination of Employee's employment with TXU or at any other time upon TXU's request and Employee shall not retain any electronic copies of\nany Confidential Information.\n(c) Employee acknowledges and agrees that all Work Product conceived by the Employee while employed by TXU, whether or not during\nregular working hours, provided such Work Product is related in some manner to the business of TXU, shall be owned and belong exclusively\nto\nTXU\nand that Employee shall have no personal interest in or right to use such Work Product. Employee shall, unless TXU otherwise agrees\nin\nwriting, and without additional compensation: (i) disclose promptly to TXU any and all Work Product, and business opportunities related to the\npresent and/or contemplated business of TXU ("Business Opportunities"); (ii) assign to TXU and comply with all\n2\nreasonable instructions of TXU regarding assigning, upon request, the entire rights to all such Work Product and Business Opportunities; (iii) give an\naffidavit and live testimony (as may be necessary or desirable in the sole and absolute discretion of TXU) in support of his/her inventorship or\ncreation in any appropriate case; and (iv) whenever requested to do so by TXU, execute any and all applications, assignments or other instruments\nthat TXU shall deem necessary to obtain, maintain, protect or vest in TXU the entire right, title and interest in and to such Work Product and\nBusiness Opportunities. This provision shall not apply to Work Product for which no equipment, supplies, facility or Confidential Information of\nTXU was used and which was developed entirely on Employee's own time and (i) does not relate to (a) the business of TXU; or (b) TXU's actual or\ndemonstrably anticipated business or development, or (ii) does not result from any work performed by Employee for TXU.\n3. Non-Solicitation and Non-Competition.\n(a) In order to protect the Confidential Information and in order to enforce Employee's agreement not to disclose Confidential Information,\nEmployee and TXU agree that:\n(i) during Employee's employment with TXU, and for the shorter of three (3) years after the termination of such employment or the\nperiod for which Employee received severance pay under the TXU Severance Plan in effect at the time of termination but in no event less than six\n(6) months, Employee shall not directly or indirectly, either for his/her own benefit or the benefit of any other person or entity, contribute\nEmployee's knowledge to or work with, in any capacity that would or is likely to involve use or disclosure of Confidential Information, any venture,\nbusiness, association, trust or other organization which in any way competes with TXU in connection with the development, construction or\noperation of electric power generation plants or related facilities, including air quality control systems, in plants fueled by a solid fossil fuel\nincluding petroleum coke, lignite and coal in Texas, PJM Power Pool or any other system control area in the United States in which there is\ncompetition among generators of electric power and energy.\n(ii) during the term of Employee's employment with TXU, and for three (3) years after the termination of such employment, Employee\nshall not\n(A) directly or indirectly request or advise any present or future TXU customers to cancel any contracts, or otherwise curtail their\ndealings, with TXU;\n(B) directly or indirectly request or advise any present or future TXU service provider or financial resource to withdraw, curtail,\nor cancel the furnishing of such service or resource to TXU; and\n(C) directly or indirectly induce or attempt to influence any employee of TXU to terminate his or her employment; interfere with\nthe relationship between TXU and its employees; or, employ or otherwise engage as an employee, independent contractor or otherwise any\nemployee of TXU.\nNotwithstanding anything to the contrary contained in this Section 3(a), Employee may own, directly or indirectly, securities of any entity traded on\nany national securities exchange or listed on the National Association of Securities Dealers Automated Quotation System if Employee does not,\ndirectly or indirectly, individually own 1% or more of any class of equity securities, or securities convertible into or exercisable or exchangeable for\n1% or more of any class of equity securities, of such entity.\n3\n(b) In the event of a breach by Employee of any covenant set forth in this Section 3, the term of such covenant shall be extended by the period\nof duration of such breach.\n(c) Until the termination of the period during which Employee's activities are limited by this Agreement, Employee will, within ten (10) days\nafter accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association, advise TXU of\nthe identity of the new employee, client, partner or other person with whom Employee has become associated. TXU may serve notice upon each\nsuch person that Employee is bound by this Agreement and furnish each such person with a copy of this Agreement.\n(d) Employee and TXU agree that the non-competition provisions set forth in this Section 3 are ancillary to this Agreement, which is an\nenforceable agreement. Employee agrees that any association by Employee with a competitor of TXU during the Applicable Period may lead to\nEmployee's unauthorized use of the Confidential Information, even if such use was unintentional. Because it would be impossible, as a practical\nmatter,\nto\nmonitor, restrain or police Employee's use of such Confidential Information other than through Employee's covenants contained in\nthis\nSection 3, Employee acknowledges that such restrictions are the narrowest method to protect TXU's interests, and the narrowest method of enforcing\nconsideration for his/her receipt of Confidential Information.\n4. Notices. Any notices shall be in writing and shall be deemed given (a) when personally delivered, (b) when confirmed if delivered\nby\nfacsimile or similar device, or (c) when sent by certified mail, return receipt requested, addressed to the other party at the address provided below\nits/his/her signature to this Agreement, or at such other address as may be specified through these notice procedures.\n5. Assignment; Parties Bound. TXU reserves the right to assign all of its rights, powers and privileges under this Agreement, including,\nwithout limitation, the right to enforce all of the terms of this Agreement, to successors or between Affiliates of TXU or any person who acquires a\nmajority of the outstanding stock or all or substantially all of the assets of TXU. Employee shall not assign or otherwise delegate his obligations or\nduties under this Agreement to any other person. Any assignment or delegation in violation of this Agreement shall be null and void. Subject to the\nforegoing, this Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective heirs,\nexecutors, administrators, legal representatives, successors, and permitted assigns.\n6. Governing Law THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH LAWS OF THE\nSTATE OF TEXAS.\n7. Non-Waiver of Breach. A waiver of a breach or default by another must be in writing and shall not be deemed a waiver of a default by a\nthird party or any subsequent default or breach of the same or any other provision of this Agreement.\n8. Severability.; Reformation. If any provision of this Agreement, as applied to any party or to any circumstances, is held to be invalid or\nunenforceable, such holding will not affect any\n4\nother provision of this Agreement, the application of such provision to any other party or in any other circumstances or the validity or enforceability\nof this Agreement. If any such provision (including the limitations contained in Section 3 as to time, geographical area, and scope of activity to be\nrestrained) is so held to be unenforceable, the parties agree that the court or authority making such determination shall reform this Agreement\n(including by reducing the limitations contained in Section 3 as to time, geographical area and scope of activity to be restrained to the extent\nnecessary to cause such limitations to be reasonable and not otherwise impose a restraint that is greater than necessary to protect the goodwill and\nConfidential Information of TXU) so as to make such provision enforceable as reformed. In the event that an applicable court or authority would not\nhave the legal authority to take the actions described in the preceding sentence, the parties agree to negotiate in good faith to agree on a modified\nprovision that would, in so far as possible, reflect the original intent of this Agreement without violating applicable law.\n9. Remedies. The Employee recognizes and acknowledges the competitive and confidential nature of the Confidential Information and that\nirreparable damage will result to TXU if it is disclosed to any third party or is used for any purpose, other than as permitted by this Agreement. TXU\nand Employee further agree that money damages would not be a sufficient remedy for any breach of this Agreement by Employee and that such\ndamages would be difficult if not impossible to quantify. Accordingly, Employee agrees that TXU shall be entitled to an injunction or injunctions\nwithout the posting of any bond to prevent breaches or threatened breaches of this Agreement and/or to specific performance of this Agreement\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by Employee of this Agreement but shall be in addition to all other\nremedies available at law or equity to TXU.\n10. No Right to Employment. Nothing in this Agreement shall be construed as giving Employee any right of employment or continued\nemployment with TXU.\n11. Employee Acknowledgement Employee acknowledges that (i) TXU is engaged in the business of owning, managing and operating certain\nsolid fuel and gas electric generation assets, (ii) TXU's business is highly competitive, (iii) Employee will be given access to Confidential\nInformation of TXU that is a valuable, special, proprietary and unique asset used by TXU in its respective businesses, (iv) he/she will confirm,\nby\nseparate acknowledgement, receipt of Confidential Information in conjunction with the Project and (v) protection of such Confidential Information\nagainst unauthorized disclosure and use is of critical importance to TXU.\n[Remainder of page intentionally left blank]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.\nTXU CORP.\nBy:\nName:\nTitle:\nAddress: 1601 Bryan\nDallas, Texas 75201\nAttention: General Counsel\nFacsimile: (214) 812-6032\nBy:\n[Employee]\nAddress:\nDate:\nS-1	EX-10.1 2 dex101.htm FORM OF NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nNON-DISCLOSURE, NON-SOLICITATION\nAND NON-COMPETITION\nAGREEMENT\nThis Non-Disclosure, Non-Solicitation and Non-Competition Agreement (the “Agreement”) is between TXU Corp., a Texas corporation, and\n(“Employee”).\nTXU Corp. and its Affiliates (“TXU”) are beginning a project which will involve the first development of lignite and coal fired electric\ngeneration in Texas in approximately 30 years and the first of such developments since the deregulation of the Texas electric power market (the\n“Project”);\nIn connection with the Project, TXU will provide Employee with certain Confidential Information (as defined below), including specialized\nknowledge and insight regarding the manner and method in which TXU plans to develop such coal and lignite fueled generation and operate that\nportion of its business, and Employee will have access to and use such Confidential Information to assist TXU in connection with the Project;\nThe Confidential Information that Employee will have access to is a valuable, special, proprietary and unique asset used by TXU in its\nbusinesses and TXU has taken and will continue to take steps to protect the Confidential Information from unauthorized disclosure, which is of\ncritical importance and value to TXU and provides TXU with a competitive advantage in connection with the Project; and\nTXU would suffer irreparable harm if Employee were to use or enable others to use such Confidential Information in competition with TXU in\nTexas or other system control areas where there is or will be competition in the supply of electric power.\nTHEREFORE, for and in consideration of Employee’s access to and receipt of TXU’s Confidential Information and the opportunity to\nparticipate in the Project and the mutual covenants of this Agreement, the receipt and adequacy of which are acknowledged, TXU and Employee\nagree as follows:\n1. Definitions. For purposes of this Agreement, the following words shall have the following meanings:\n(a) “Affiliate” shall mean any entity that, directly or indirectly, controls, is controlled by or is under common control with TXU.\n(b) “Confidential Information” means information (i) disclosed to or known by the Employee as a consequence or through his/her work in\nconnection with the Project; (ii) not generally known outside TXU; and (iii) which relates to any aspect of TXU’s business and development in\nconnection with the Project. Confidential Information includes all confidential and/or propriety information and/or trade secrets of TXU that has\nbeen and/or will be developed or used for the Project, including, but not limited to, information regarding suppliers, consultants, customers,\n1\nemployees, contractors and the electric generation industry not generally known to the public; strategies, methods, books, records and documents;\ntechnical information concerning products, equipment, services and processes; procurement procedures, pricing and pricing techniques; information\nconcerning past, current and prospective customers, investors and business affiliates (such as contact name, service provided, pricing, type and\namount of services used, financial data and/or other such information); pricing strategies and price curves; positions; plans or strategies for\nexpansion or acquisitions; budgets; research; financial and sales data (including budgets, forecasts and historical financial data); trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. Confidential Information also includes matters that Employee conceives or develops, as well as\nmatters Employee learns from other employees of TXU.\n(c) “Work Product” means all ideas, discoveries, programs, systems, methods, interfaces, protocols, databases, creations, artwork, articles,\nprogramming, processes, designs, inventions or improvements relating to technological matters, whether or not capable of being protected by patent,\ncopyright, trade secret or other intellectual property right.\n2. Non-Disclosure, Return of Property and Ownership of Work Product.\n(a) Employee agrees not to divulge, use, furnish, disclose or make accessible, directly or indirectly, for his/her own benefit or the benefit of any\nother person or entity, any Confidential Information for any reason or purpose whatsoever, except to the extent that disclosure or use of such\nConfidential Information is necessary to fulfill his/her responsibilities as an employee of TXU in connection with the Project. Employee’s\nobligations under this Section 2 with respect to any specific Confidential Information shall cease only when that specific portion of the Confidential\nInformation becomes publicly known, other than as a result of disclosure by Employee, in its entirety and without combining portions of such\ninformation obtained separately. This Section 2 shall continue in full force and effect after termination of Employee’s employment for any reason.\n(b) All memoranda, notes, lists, records, drawings, specifications and related documents and other documents or papers (and all copies thereof)\nrelating to or containing Confidential Information, including such items stored in electronic form or by any other means, made or compiled by or on\nbehalf of Employee, or made available to Employee, shall be property of TXU. Employee shall deliver such items to TXU promptly upon the\ntermination of Employee’s employment with TXU or at any other time upon TXU’s request and Employee shall not retain any electronic copies of\nany Confidential Information.\n(c) Employee acknowledges and agrees that all Work Product conceived by the Employee while employed by TXU, whether or not during\nregular working hours, provided such Work Product is related in some manner to the business of TXU, shall be owned and belong exclusively to\nTXU and that Employee shall have no personal interest in or right to use such Work Product. Employee shall, unless TXU otherwise agrees in\nwriting, and without additional compensation: (i) disclose promptly to TXU any and all Work Product, and business opportunities related to the\npresent and/or contemplated business of TXU (“Business Opportunities”); (ii) assign to TXU and comply with all\n2\nreasonable instructions of TXU regarding assigning, upon request, the entire rights to all such Work Product and Business Opportunities; (iii) give an\naffidavit and live testimony (as may be necessary or desirable in the sole and absolute discretion of TXU) in support of his/her inventorship or\ncreation in any appropriate case; and (iv) whenever requested to do so by TXU, execute any and all applications, assignments or other instruments\nthat TXU shall deem necessary to obtain, maintain, protect or vest in TXU the entire right, title and interest in and to such Work Product and\nBusiness Opportunities. This provision shall not apply to Work Product for which no equipment, supplies, facility or Confidential Information of\nTXU was used and which was developed entirely on Employee’s own time and (i) does not relate to (a) the business of TXU; or (b) TXU’s actual or\ndemonstrably anticipated business or development, or (ii) does not result from any work performed by Employee for TXU.\n3. Non-Solicitation and Non-Competition.\n(a) In order to protect the Confidential Information and in order to enforce Employee’s agreement not to disclose Confidential Information,\nEmployee and TXU agree that:\n(i) during Employee’s employment with TXU, and for the shorter of three (3) years after the termination of such employment or the\nperiod for which Employee received severance pay under the TXU Severance Plan in effect at the time of termination but in no event less than six\n(6) months, Employee shall not directly or indirectly, either for his/her own benefit or the benefit of any other person or entity, contribute\nEmployee’s knowledge to or work with, in any capacity that would or is likely to involve use or disclosure of Confidential Information, any venture,\nbusiness, association, trust or other organization which in any way competes with TXU in connection with the development, construction or\noperation of electric power generation plants or related facilities, including air quality control systems, in plants fueled by a solid fossil fuel\nincluding petroleum coke, lignite and coal in Texas, PJM Power Pool or any other system control area in the United States in which there is\ncompetition among generators of electric power and energy.\n(ii) during the term of Employee’s employment with TXU, and for three (3) years after the termination of such employment, Employee\nshall not\n(A) directly or indirectly request or advise any present or future TXU customers to cancel any contracts, or otherwise curtail their\ndealings, with TXU;\n(B) directly or indirectly request or advise any present or future TXU service provider or financial resource to withdraw, curtail,\nor cancel the furnishing of such service or resource to TXU; and\n(C) directly or indirectly induce or attempt to influence any employee of TXU to terminate his or her employment; interfere with\nthe relationship between TXU and its employees; or, employ or otherwise engage as an employee, independent contractor or otherwise any\nemployee of TXU.\nNotwithstanding anything to the contrary contained in this Section 3(a), Employee may own, directly or indirectly, securities of any entity traded on\nany national securities exchange or listed on the National Association of Securities Dealers Automated Quotation System if Employee does not,\ndirectly or indirectly, individually own 1% or more of any class of equity securities, or securities convertible into or exercisable or exchangeable for\n1% or more of any class of equity securities, of such entity.\n3\n(b) In the event of a breach by Employee of any covenant set forth in this Section 3, the term of such covenant shall be extended by the period\nof duration of such breach.\n(c) Until the termination of the period during which Employee’s activities are limited by this Agreement, Employee will, within ten (10) days\nafter accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association, advise TXU of\nthe identity of the new employee, client, partner or other person with whom Employee has become associated. TXU may serve notice upon each\nsuch person that Employee is bound by this Agreement and furnish each such person with a copy of this Agreement.\n(d) Employee and TXU agree that the non-competition provisions set forth in this Section 3 are ancillary to this Agreement, which is an\nenforceable agreement. Employee agrees that any association by Employee with a competitor of TXU during the Applicable Period may lead to\nEmployee’s unauthorized use of the Confidential Information, even if such use was unintentional. Because it would be impossible, as a practical\nmatter, to monitor, restrain or police Employee’s use of such Confidential Information other than through Employee’s covenants contained in this\nSection 3, Employee acknowledges that such restrictions are the narrowest method to protect TXU’s interests, and the narrowest method of enforcing\nconsideration for his/her receipt of Confidential Information.\n4. Notices. Any notices shall be in writing and shall be deemed given (a) when personally delivered, (b) when confirmed if delivered by\nfacsimile or similar device, or (c) when sent by certified mail, return receipt requested, addressed to the other party at the address provided below\nits/his/her signature to this Agreement, or at such other address as may be specified through these notice procedures.\n5. Assignment; Parties Bound. TXU reserves the right to assign all of its rights, powers and privileges under this Agreement, including,\nwithout limitation, the right to enforce all of the terms of this Agreement, to successors or between Affiliates of TXU or any person who acquires a\nmajority of the outstanding stock or all or substantially all of the assets of TXU. Employee shall not assign or otherwise delegate his obligations or\nduties under this Agreement to any other person. Any assignment or delegation in violation of this Agreement shall be null and void. Subject to the\nforegoing, this Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective heirs,\nexecutors, administrators, legal representatives, successors, and permitted assigns.\n6. Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH LAWS OF THE\nSTATE OF TEXAS.\n7. Non-Waiver of Breach. A waiver of a breach or default by another must be in writing and shall not be deemed a waiver of a default by a\nthird party or any subsequent default or breach of the same or any other provision of this Agreement.\n8. Severability; Reformation. If any provision of this Agreement, as applied to any party or to any circumstances, is held to be invalid or\nunenforceable, such holding will not affect any\n4\nother provision of this Agreement, the application of such provision to any other party or in any other circumstances or the validity or enforceability\nof this Agreement. If any such provision (including the limitations contained in Section 3 as to time, geographical area, and scope of activity to be\nrestrained) is so held to be unenforceable, the parties agree that the court or authority making such determination shall reform this Agreement\n(including by reducing the limitations contained in Section 3 as to time, geographical area and scope of activity to be restrained to the extent\nnecessary to cause such limitations to be reasonable and not otherwise impose a restraint that is greater than necessary to protect the goodwill and\nConfidential Information of TXU) so as to make such provision enforceable as reformed. In the event that an applicable court or authority would not\nhave the legal authority to take the actions described in the preceding sentence, the parties agree to negotiate in good faith to agree on a modified\nprovision that would, in so far as possible, reflect the original intent of this Agreement without violating applicable law.\n9. Remedies. The Employee recognizes and acknowledges the competitive and confidential nature of the Confidential Information and that\nirreparable damage will result to TXU if it is disclosed to any third party or is used for any purpose, other than as permitted by this Agreement. TXU\nand Employee further agree that money damages would not be a sufficient remedy for any breach of this Agreement by Employee and that such\ndamages would be difficult if not impossible to quantify. Accordingly, Employee agrees that TXU shall be entitled to an injunction or injunctions\nwithout the posting of any bond to prevent breaches or threatened breaches of this Agreement and/or to specific performance of this Agreement.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by Employee of this Agreement but shall be in addition to all other\nremedies available at law or equity to TXU.\n10. No Right to Employment. Nothing in this Agreement shall be construed as giving Employee any right of employment or continued\nemployment with TXU.\n11. Employee Acknowledgement. Employee acknowledges that (i) TXU is engaged in the business of owning, managing and operating certain\nsolid fuel and gas electric generation assets, (ii) TXU’s business is highly competitive, (iii) Employee will be given access to Confidential\nInformation of TXU that is a valuable, special, proprietary and unique asset used by TXU in its respective businesses, (iv) he/she will confirm, by\nseparate acknowledgement, receipt of Confidential Information in conjunction with the Project and (v) protection of such Confidential Information\nagainst unauthorized disclosure and use is of critical importance to TXU.\n[Remainder of page intentionally left blank]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.\nTXU CORP.\nBy:\nName:\nTitle:\nAddress: 1601 Bryan\nDallas, Texas 75201\nAttention: General Counsel\nFacsimile: (214) 812-6032\nBy:\n[Employee]\nAddress:\nDate:\nS-1
e36c79d0e4b25e4e9cc76aafd176afe8.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 8 a2215783zex-99 _d3.htm EX-99.(D)(3)\nQuickLinks -- Click here to rapidly navigate through this document\nEXHIBIT (d)(3)\nJanuary 25, 2013\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nDear Mr. Michaud:\nIn connection with J.F. Lehman & Company's ("you", "your", or "JFL") consideration of a possible acquisition, investment or loan transaction\n("Transaction") involving OP-TECH Environmental Services, Inc. (the "Company"), the Company and you (and each a "Party" and together the\n"Parties") have agreed to exchange certain confidential and other information concerning the Company and possible Transaction.\nAs a condition to exchanging such information, including any Confidential Memorandum or similar document, the "Parties" agree to treat any\ninformation concerning the Company, which is furnished to you on behalf of the Company, whether furnished before or after the date of this letter,\ntogether with any and all analyses, compilations, studies or other documents prepared by you or any of your directors, officers, managers,\nsubsidiaries, lenders, financing sources, employees, agents, advisors, attorneys, accountants, consultants or representatives (all of the foregoing who\nreceive Evaluation Material directly or indirectly from a party, collectively, "Representatives") which contain or otherwise reflect any information\ndisclosed by the Parties (hereinafter collectively referred to as the "Evaluation Material"), in accordance with the provisions of this agreement. The\nterm "Evaluation Material" does not include information which (i) was or is already in your possession prior to the time of disclosure to you by the\nCompany, provided that such information did not come from a source known by you to be bound by a confidentiality agreement with the Company,\nor otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary obligation, (ii) was, is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (iii) was, is or becomes\navailable to you on a non-confidential basis from a source other than the Company, provided that such source is not known by you to be bound by a\nconfidentiality agreement with the Company, or otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary\nobligation, or (iv) was or is developed by you without reliance on or reference to Evaluation Material.\nThe Parties hereby agree that the Evaluation Material will be used solely for the purpose of evaluating the Transaction between the Parties.\nWithout limiting the foregoing, each Party specifically agrees that the Evaluation Material shall not be used to obtain any competitive advantage at\nany time in the event a Transaction with the Company is not consummated. In addition, such information will be kept confidential by each Party\nexcept to the extent that disclosure of such information (i) has been consented to in writing by the disclosing Party, (ii) is required by law, regulation,\nsupervisory authority or other applicable judicial or governmental order, or (iii) is made to your Representatives who, in your reasonable opinion,\nneed to know such information for the purpose of evaluating the Transaction, provided that such Representatives be informed by the receiving Party\nof the confidential nature of the Evaluation Material, and agree to maintain the confidentiality thereof. In any event, each Party shall be responsible\nfor any breach of this agreement by its Representatives. To the extent the Agreement purports to be binding upon your subsidiaries, the Company\nagrees that any non-wholly owned company in which you or an investment fund managed by you may now or in the future have an investment will\nnot be deemed subject to or bound by the Agreement (as a Representative or otherwise) unless and only to the extent such company has been\nprovided the Evaluation Material by you, it being acknowledged and agreed that possession or knowledge of Evaluation Material by you or its\ndesignated representative(s) on such company's board or governing body shall not, solely for that reason, be deemed imputed to such company.\nNotwithstanding any provision of this Agreement to the\nLOGO\n1 Adler Drive\nEast Syracuse, NY 13057\nPhone: 315-437 -2065\nFax: 315-437 -6973\nwww.op-tech.us\ncontrary, no provision of this Agreement shall apply to any action taken independently by any of the portfolio companies of your affiliated\ninvestment funds so long as in each case such portfolio company has not received any Evaluation Material.\nIn addition, unless otherwise required by law, without the prior consent of the Parties, each Party will direct its Representatives not to disclose\nto any person (i) that the Evaluation Material has been made available, (ii) that discussions or negotiations are taking place concerning a Transaction\nor (iii) any terms, conditions or other facts with respect to the proposed Transaction, including the status thereof.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material, you will, if permitted by law, provide the Company with prompt notice of any such request or requirement so that the Company\nmay seek, at its own expense, an appropriate protective order or other appropriate remedy, at its sole expense, and/or waive compliance with the\nterms of this agreement. In the event that (i) such protective order or other remedy is not obtained, or (ii) the Company in writing waives compliance\nwith the terms thereof, you may disclose only that portion of the Evaluation Material which is legally required, and you will exercise commercially\nreasonable efforts to obtain assurance that confidential treatment will be accorded to such Evaluation Material.\nIf either Party or any of their respective Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, or similar process) to disclose any Evaluation Material received by it or to make any other\ndisclosure, such party agrees to provide the disclosing Party of such Evaluation Material with prompt notice of each such request, to the extent\npracticable, so that the disclosing Party may seek, at its own expense, an appropriate protective order or waive compliance by the receiving Party\nwith the provisions of this agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this agreement, the receiving\nParty or its Representatives are, in the opinion of its or its Representatives' counsel, as the case may be, legally compelled to disclose such\nEvaluation material under pain of liability for contempt or other censure or penalty, the receiving Party may disclose such information to the persons\nand to the extent required without liability under this agreement.\nNeither party shall be entitled to any special, consequential, indirect, punitive or exemplary damages, including loss of profits, as a result of any\nbreach of this Agreement by the other party, its affiliates or its Representatives, regardless of whether a claim is asserted under contract, tort or other\ntheory.\nUnless otherwise directed by the Company, all communications regarding a Transaction and all requests for additional information concerning\nthe Company will be submitted or directed solely to the Company to the attention of its Chief Executive Officer. You understand and acknowledge\nthat the Company shall not be deemed to make, any representations or warranties, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and the Company shall not have any liability to you or any of its Representatives resulting from use thereof, except for fraud,\nwillful misconduct, or as specifically agreed to herein. Only those representations or warranties which are made by the Company in a final definitive\nagreement regarding a Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect.\nThis agreement shall be governed by and interpreted according to the laws of the State of New York (exclusive of such State's conflicts of laws\nrules) and subject to the exclusive jurisdiction of the federal or state courts located in Southern District of New York. This Agreement binds the\nParties only with respect to the matters expressly set forth herein. As such, unless and until a definitive agreement regarding a Transaction between\nthe Company and you has been executed, (i) neither the Company nor you will be under any legal obligation of any kind whatsoever to negotiate or\nconsummate a Transaction by virtue of this agreement or any other written or oral expression with respect thereto made by the Company or any\nother party, and (ii) you shall not have any claim whatsoever against the Company or any of their respective directors, officers, employees,\nstockholders, owners, agents or\nrepresentatives, arising out of any Transaction, except for fraud, willful misconduct, or as specifically agreed to herein.\nJFL's obligations under this agreement shall remain in effect for a period of twelve months from the date hereof, unless and until this agreement\nis terminated by the Company or is superseded by another agreement between you and the Company that concerns your use of the Evaluation\nMaterial.\nThis letter agreement shall constitute the full agreement by us with respect to the Evaluation Material submitted by the Company to us and shall\nsupersede any and all prior agreements and understandings relating thereto.\nThis agreement may be executed in counterparts. Please confirm that the foregoing is in accordance with your understanding of our agreement\nby signing and returning to us a copy of this letter.\nVery truly yours,\nOP-TECH Environmental Services, Inc. (the "Company")\nAccepted and agreed to as of the 25 day of January, 2013.\nBy: /s/ CHARLES B. MORGAN\nName: Charles B. Morgan\nTitle: CEO\nCompany: J.F. Lehman & Company\nBy: /s/ JAMES J. MICHAUD\nJames J. Michaud\nQuickLinks\nEXHIBIT (d)(3)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT	EX-99.(D)(3) 8 a2215783zex-99_d3.htm EX-99.(D)(3)\nQuickLinks -- Click here to rapidly navigate through this document\nEXHIBIT (d)(3)\n1 Adler Drive\n[LOGO East Syracuse, NY 13057\nPhone: 315-437-2065\nFax: 315-437-6973\nwww.op-tech.us\nJanuary 25, 2013\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nDear Mr. Michaud:\nIn connection with J.F. Lehman & Company's ("you", "your", or "JFL") consideration of a possible acquisition, investment or loan transaction\n("Transaction") involving OP-TECH Environmental Services, Inc. (the "Company"), the Company and you (and each a "Party" and together the\n"Parties") have agreed to exchange certain confidential and other information concerning the Company and possible Transaction.\nAs a condition to exchanging such information, including any Confidential Memorandum or similar document, the "Parties" agree to treat any\ninformation concerning the Company, which is furnished to you on behalf of the Company, whether furnished before or after the date of this letter,\ntogether with any and all analyses, compilations, studies or other documents prepared by you or any of your directors, officers, managers,\nsubsidiaries, lenders, financing sources, employees, agents, advisors, attorneys, accountants, consultants or representatives (all of the foregoing who\nreceive Evaluation Material directly or indirectly from a party, collectively, "Representatives") which contain or otherwise reflect any information\ndisclosed by the Parties (hereinafter collectively referred to as the "Evaluation Material"), in accordance with the provisions of this agreement. The\nterm "Evaluation Material" does not include information which (i) was or is already in your possession prior to the time of disclosure to you by the\nCompany, provided that such information did not come from a source known by you to be bound by a confidentiality agreement with the Company,\nor otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary obligation, (ii) was, is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (iii) was, is or becomes\navailable to you on a non-confidential basis from a source other than the Company, provided that such source is not known by you to be bound by a\nconfidentiality agreement with the Company, or otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary\nobligation, or (iv) was or is developed by you without reliance on or reference to Evaluation Material.\nThe Parties hereby agree that the Evaluation Material will be used solely for the purpose of evaluating the Transaction between the Parties.\nWithout limiting the foregoing, each Party specifically agrees that the Evaluation Material shall not be used to obtain any competitive advantage at\nany time in the event a Transaction with the Company is not consummated. In addition, such information will be kept confidential by each Party\nexcept to the extent that disclosure of such information (i) has been consented to in writing by the disclosing Party, (ii) is required by law, regulation,\nsupervisory authority or other applicable judicial or governmental order, or (iii) is made to your Representatives who, in your reasonable opinion,\nneed to know such information for the purpose of evaluating the Transaction, provided that such Representatives be informed by the receiving Party\nof the confidential nature of the Evaluation Material, and agree to maintain the confidentiality thereof. In any event, each Party shall be responsible\nfor any breach of this agreement by its Representatives. To the extent the Agreement purports to be binding upon your subsidiaries, the Company\nagrees that any non-wholly owned company in which you or an investment fund managed by you may now or in the future have an investment will\nnot be deemed subject to or bound by the Agreement (as a Representative or otherwise) unless and only to the extent such company has been\nprovided the Evaluation Material by you, it being acknowledged and agreed that possession or knowledge of Evaluation Material by you or its\ndesignated representative(s) on such company's board or governing body shall not, solely for that reason, be deemed imputed to such company.\nNotwithstanding any provision of this Agreement to the\ncontrary, no provision of this Agreement shall apply to any action taken independently by any of the portfolio companies of your affiliated\ninvestment funds so long as in each case such portfolio company has not received any Evaluation Material.\nIn addition, unless otherwise required by law, without the prior consent of the Parties, each Party will direct its Representatives not to disclose\nto any person (i) that the Evaluation Material has been made available, (ii) that discussions or negotiations are taking place concerning a Transaction\nor (iii) any terms, conditions or other facts with respect to the proposed Transaction, including the status thereof.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material, you will, if permitted by law, provide the Company with prompt notice of any such request or requirement so that the Company\nmay seek, at its own expense, an appropriate protective order or other appropriate remedy, at its sole expense, and/or waive compliance with the\nterms of this agreement. In the event that (i) such protective order or other remedy is not obtained, or (ii) the Company in writing waives compliance\nwith the terms thereof, you may disclose only that portion of the Evaluation Material which is legally required, and you will exercise commercially\nreasonable efforts to obtain assurance that confidential treatment will be accorded to such Evaluation Material.\nIf either Party or any of their respective Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, or similar process) to disclose any Evaluation Material received by it or to make any other\ndisclosure, such party agrees to provide the disclosing Party of such Evaluation Material with prompt notice of each such request, to the extent\npracticable, so that the disclosing Party may seek, at its own expense, an appropriate protective order or waive compliance by the receiving Party\nwith the provisions of this agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this agreement, the receiving\nParty or its Representatives are, in the opinion of its or its Representatives' counsel, as the case may be, legally compelled to disclose such\nEvaluation material under pain of liability for contempt or other censure or penalty, the receiving Party may disclose such information to the persons\nand to the extent required without liability under this agreement.\nNeither party shall be entitled to any special, consequential, indirect, punitive or exemplary damages, including loss of profits, as a result of any\nbreach of this Agreement by the other party, its affiliates or its Representatives, regardless of whether a claim is asserted under contract, tort or other\ntheory.\nUnless otherwise directed by the Company, all communications regarding a Transaction and all requests for additional information concerning\nthe Company will be submitted or directed solely to the Company to the attention of its Chief Executive Officer. You understand and acknowledge\nthat the Company shall not be deemed to make, any representations or warranties, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and the Company shall not have any liability to you or any of its Representatives resulting from use thereof, except for fraud,\nwillful misconduct, or as specifically agreed to herein. Only those representations or warranties which are made by the Company in a final definitive\nagreement regarding a Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect.\nThis agreement shall be governed by and interpreted according to the laws of the State of New York (exclusive of such State's conflicts of laws\nrules) and subject to the exclusive jurisdiction of the federal or state courts located in Southern District of New York. This Agreement binds the\nParties only with respect to the matters expressly set forth herein. As such, unless and until a definitive agreement regarding a Transaction between\nthe Company and you has been executed, (i) neither the Company nor you will be under any legal obligation of any kind whatsoever to negotiate or\nconsummate a Transaction by virtue of this agreement or any other written or oral expression with respect thereto made by the Company or any\nother party, and (ii) you shall not have any claim whatsoever against the Company or any of their respective directors, officers, employees,\nstockholders, owners, agents or\nrepresentatives, arising out of any Transaction, except for fraud, willful misconduct, or as specifically agreed to herein.\nJFL's obligations under this agreement shall remain in effect for a period of twelve months from the date hereof, unless and until this agreement\nis terminated by the Company or is superseded by another agreement between you and the Company that concerns your use of the Evaluation\nMaterial.\nThis letter agreement shall constitute the full agreement by us with respect to the Evaluation Material submitted by the Company to us and shall\nsupersede any and all prior agreements and understandings relating thereto.\nThis agreement may be executed in counterparts. Please confirm that the foregoing is in accordance with your understanding of our agreement\nby signing and returning to us a copy of this letter.\nVery truly yours,\nOP-TECH Environmental Services, Inc. (the "Company")\nBy: /s/ CHARLES B. MORGAN\nName: Charles B. Morgan\nTitle: CEO\nAccepted and agreed to as of the 25 day of January, 2013.\nCompany: J.F. Lehman & Company\nBy: /s/ JAMES J. MICHAUD\nJames J. Michaud\nQuickLinks\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT	EX-99.(D)(3) 8 a2215783zex-99_d3.htm EX-99.(D)(3)\nQuickLinks Click here to rapidly navigate through this document\nEXHIBIT (d)(3)\n1 Adler Drive\nLOGO\nEast Syracuse, NY 13057\nPhone: 315-437-2065\nFax: 315-437-6973\nwww.op-tech.us\nJanuary 25, 2013\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nDear Mr. Michaud:\nIn connection with J.F. Lehman & Company's ("you", "your", or "JFL") consideration of a possible acquisition, investment or loan transaction\n("Transaction") involving OP-TECH Environmental Services, Inc. (the "Company"), the Company and you (and each a "Party" and together the\n"Parties") have agreed to exchange certain confidential and other information concerning the Company and possible Transaction.\nAs a condition to exchanging such information, including any Confidential Memorandum or similar document, the "Parties" agree to treat any\ninformation concerning the Company, which is furnished to you on behalf of the Company, whether furnished before or after the date of this letter,\ntogether with any and all analyses, compilations, studies or other documents prepared by you or any of your directors, officers, managers,\nsubsidiaries, lenders, financing sources, employees, agents, advisors, attorneys, accountants, consultants or representatives (all of the foregoing who\nreceive Evaluation Material directly or indirectly from a party, collectively, "Representatives") which contain or otherwise reflect any information\ndisclosed by the Parties (hereinafter collectively referred to as the "Evaluation Material"), in accordance with the provisions of this agreement. The\nterm "Evaluation Material" does not include information which (i) was or is already in your possession prior to the time of disclosure to you by the\nCompany, provided that such information did not come from a source known by you to be bound by a confidentiality agreement with the Company,\nor otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary obligation, (ii) was, is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (iii) was, is or becomes\navailable to you on a non-confidential basis from a source other than the Company, provided that such source is not known by you to be bound by a\nconfidentiality agreement with the Company, or otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary\nobligation, or (iv) was or is developed by you without reliance on or reference to Evaluation Material.\nThe Parties hereby agree that the Evaluation Material will be used solely for the purpose of evaluating the Transaction between the Parties.\nWithout limiting the foregoing, each Party specifically agrees that the Evaluation Material shall not be used to obtain any competitive advantage at\nany time in the event a Transaction with the Company is not consummated. In addition, such information will be kept confidential by each Party\nexcept to the extent that disclosure of such information (i) has been consented to in writing by the disclosing Party, (ii) is required by law, regulation,\nsupervisory authority or other applicable judicial or governmenta order, or (iii) is made to your Representatives who, in your reasonable opinion,\nneed to know such information for the purpose of evaluating the Transaction, provided that such Representatives be informed by the receiving Party\nof the confidential nature of the Evaluation Material, and agree to maintain the confidentiality thereof. In any event, each Party shall be responsible\nfor any breach of this agreement by its Representatives. To the extent the Agreement purports to be binding upon your subsidiaries, the Company\nagrees that any non-wholly owned company in which you or an investment fund managed by you may now or in the future have an investment will\nnot be deemed subject to or bound by the Agreement (as a Representative or otherwise) unless and only to the extent such company has been\nprovided the Evaluation Material by you, it being acknowledged and agreed that possession or knowledge of Evaluation Material by you or its\ndesignated representative(s) on such company's board or governing body shall not, solely for that reason, be deemed imputed to such company.\nNotwithstanding any provision of this Agreement to the\ncontrary, no provision of this Agreement shall apply to any action taken independently by any of the portfolio companies of your affiliated\ninvestment funds so long as in each case such portfolio company has not received any Evaluation Material.\nIn addition, unless otherwise required by law, without the prior consent of the Parties, each Party will direct its Representatives not to disclose\nto any person (i) that the Evaluation Material has been made available, (ii) that discussions or negotiations are taking place concerning a Transaction\nor (iii) any terms, conditions or other facts with respect to the proposed Transaction, including the status thereof.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material, you will, if permitted by law, provide the Company with prompt notice of any such request or requirement so that the Company\nmay seek, at its own expense, an appropriate protective order or other appropriate remedy, at its sole expense, and/or waive compliance with the\nterms of this agreement. In the event that (i) such protective order or other remedy is not obtained, or (ii) the Company in writing waives compliance\nwith the terms thereof, you may disclose only that portion of the Evaluation Material which is legally required, and you will exercise commercially\nreasonable efforts to obtain assurance that confidential treatment will be accorded to such Evaluation Material.\nIf either Party or any of their respective Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, or similar process) to disclose any Evaluation Material received by it or to make any other\ndisclosure, such party agrees to provide the disclosing Party of such Evaluation Material with prompt notice of each such request, to the extent\npracticable, so that the disclosing Party may seek, at its own expense, an appropriate protective order or waive compliance by the receiving Party\nwith the provisions of this agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this agreement, the receiving\nParty or its Representatives are, in the opinion of its or its Representatives' counsel, as the case may be, legally compelled to disclose such\nEvaluation material under pain of liability for contempt or other censure or penalty, the receiving Party may disclose such information to the persons\nand to the extent required without liability under this agreement.\nNeither party shall be entitled to any special, consequential, indirect, punitive or exemplary damages, including loss of profits, as a result of any\nbreach of this Agreement by the other party, its affiliates or its Representatives, regardless of whether a claim is asserted under contract, tort or other\ntheory.\nUnless otherwise directed by the Company, all communications regarding a Transaction and all requests for additional information concerning\nthe Company will be submitted or directed solely to the Company to the attention of its Chief Executive Officer. You understand and acknowledge\nthat the Company shall not be deemed to make, any representations or warranties, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and the Company shall not have any liability to you or any of its Representatives resulting from use thereof, except for fraud,\nwillful misconduct, or as specifically agreed to herein. Only those representations or warranties which are made by the Company in a final definitive\nagreement regarding a Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect.\nThis agreement shall be governed by and interpreted according to the laws of the State of New York (exclusive of such State's conflicts of laws\nrules) and subject to the exclusive jurisdiction of the federal or state courts located in Southern District of New York. This Agreement binds the\nParties only with respect to the matters expressly set forth herein. As such, unless and until a definitive agreement regarding a Transaction between\nthe Company and you has been executed, (i) neither the Company nor you will be under any legal obligation of any kind whatsoever to negotiate or\nconsummate a Transaction by virtue of this agreement or any other written or oral expression with respect thereto made by the Company or any\nother party, and (ii) you shall not have any claim whatsoever against the Company or any of their respective directors, officers, employees,\nstockholders, owners, agents or\nrepresentatives, arising out of any Transaction, except for fraud, willful misconduct, or as specifically agreed to herein.\nJFL's obligations under this agreement shall remain in effect for a period of twelve months from the date hereof, unless and until this agreement\nis terminated by the Company or is superseded by another agreement between you and the Company that concerns your use of the Evaluation\nMaterial.\nThis letter agreement shall constitute the full agreement by us with respect to the Evaluation Material submitted by the Company to us and shall\nsupersede any and all prior agreements and understandings relating thereto.\nThis agreement may be executed in counterparts. Please confirm that the foregoing is in accordance with your understanding of our agreement\nby signing and returning to us a copy of this letter.\nVery truly yours,\nOP-TECH Environmental Services, Inc. (the "Company")\nBy: /s/ CHARLES B. MORGAN\nName: Charles B. Morgan\nTitle: CEO\nAccepted and agreed to as of the 25 day of January, 2013.\nCompany: J.F. Lehman & Company\nBy: /s/ JAMES J. MICHAUD\nJames J. Michaud\nQuickLinks\nEXHIBIT (d).(3)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT	EX-99.(D)(3) 8 a2215783zex-99 _d3.htm EX-99.(D)(3)\nQuickLinks -- Click here to rapidly navigate through this document\nEXHIBIT (d)(3)\nJanuary 25, 2013\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nDear Mr. Michaud:\nIn connection with J.F. Lehman & Company's ("you", "your", or "JFL") consideration of a possible acquisition, investment or loan transaction\n("Transaction") involving OP-TECH Environmental Services, Inc. (the "Company"), the Company and you (and each a "Party" and together the\n"Parties") have agreed to exchange certain confidential and other information concerning the Company and possible Transaction.\nAs a condition to exchanging such information, including any Confidential Memorandum or similar document, the "Parties" agree to treat any\ninformation concerning the Company, which is furnished to you on behalf of the Company, whether furnished before or after the date of this letter,\ntogether with any and all analyses, compilations, studies or other documents prepared by you or any of your directors, officers, managers,\nsubsidiaries, lenders, financing sources, employees, agents, advisors, attorneys, accountants, consultants or representatives (all of the foregoing who\nreceive Evaluation Material directly or indirectly from a party, collectively, "Representatives") which contain or otherwise reflect any information\ndisclosed by the Parties (hereinafter collectively referred to as the "Evaluation Material"), in accordance with the provisions of this agreement. The\nterm "Evaluation Material" does not include information which (i) was or is already in your possession prior to the time of disclosure to you by the\nCompany, provided that such information did not come from a source known by you to be bound by a confidentiality agreement with the Company,\nor otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary obligation, (ii) was, is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (iii) was, is or becomes\navailable to you on a non-confidential basis from a source other than the Company, provided that such source is not known by you to be bound by a\nconfidentiality agreement with the Company, or otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary\nobligation, or (iv) was or is developed by you without reliance on or reference to Evaluation Material.\nThe Parties hereby agree that the Evaluation Material will be used solely for the purpose of evaluating the Transaction between the Parties.\nWithout limiting the foregoing, each Party specifically agrees that the Evaluation Material shall not be used to obtain any competitive advantage at\nany time in the event a Transaction with the Company is not consummated. In addition, such information will be kept confidential by each Party\nexcept to the extent that disclosure of such information (i) has been consented to in writing by the disclosing Party, (ii) is required by law, regulation,\nsupervisory authority or other applicable judicial or governmental order, or (iii) is made to your Representatives who, in your reasonable opinion,\nneed to know such information for the purpose of evaluating the Transaction, provided that such Representatives be informed by the receiving Party\nof the confidential nature of the Evaluation Material, and agree to maintain the confidentiality thereof. In any event, each Party shall be responsible\nfor any breach of this agreement by its Representatives. To the extent the Agreement purports to be binding upon your subsidiaries, the Company\nagrees that any non-wholly owned company in which you or an investment fund managed by you may now or in the future have an investment will\nnot be deemed subject to or bound by the Agreement (as a Representative or otherwise) unless and only to the extent such company has been\nprovided the Evaluation Material by you, it being acknowledged and agreed that possession or knowledge of Evaluation Material by you or its\ndesignated representative(s) on such company's board or governing body shall not, solely for that reason, be deemed imputed to such company.\nNotwithstanding any provision of this Agreement to the\nLOGO\n1 Adler Drive\nEast Syracuse, NY 13057\nPhone: 315-437 -2065\nFax: 315-437 -6973\nwww.op-tech.us\ncontrary, no provision of this Agreement shall apply to any action taken independently by any of the portfolio companies of your affiliated\ninvestment funds so long as in each case such portfolio company has not received any Evaluation Material.\nIn addition, unless otherwise required by law, without the prior consent of the Parties, each Party will direct its Representatives not to disclose\nto any person (i) that the Evaluation Material has been made available, (ii) that discussions or negotiations are taking place concerning a Transaction\nor (iii) any terms, conditions or other facts with respect to the proposed Transaction, including the status thereof.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material, you will, if permitted by law, provide the Company with prompt notice of any such request or requirement so that the Company\nmay seek, at its own expense, an appropriate protective order or other appropriate remedy, at its sole expense, and/or waive compliance with the\nterms of this agreement. In the event that (i) such protective order or other remedy is not obtained, or (ii) the Company in writing waives compliance\nwith the terms thereof, you may disclose only that portion of the Evaluation Material which is legally required, and you will exercise commercially\nreasonable efforts to obtain assurance that confidential treatment will be accorded to such Evaluation Material.\nIf either Party or any of their respective Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, or similar process) to disclose any Evaluation Material received by it or to make any other\ndisclosure, such party agrees to provide the disclosing Party of such Evaluation Material with prompt notice of each such request, to the extent\npracticable, so that the disclosing Party may seek, at its own expense, an appropriate protective order or waive compliance by the receiving Party\nwith the provisions of this agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this agreement, the receiving\nParty or its Representatives are, in the opinion of its or its Representatives' counsel, as the case may be, legally compelled to disclose such\nEvaluation material under pain of liability for contempt or other censure or penalty, the receiving Party may disclose such information to the persons\nand to the extent required without liability under this agreement.\nNeither party shall be entitled to any special, consequential, indirect, punitive or exemplary damages, including loss of profits, as a result of any\nbreach of this Agreement by the other party, its affiliates or its Representatives, regardless of whether a claim is asserted under contract, tort or other\ntheory.\nUnless otherwise directed by the Company, all communications regarding a Transaction and all requests for additional information concerning\nthe Company will be submitted or directed solely to the Company to the attention of its Chief Executive Officer. You understand and acknowledge\nthat the Company shall not be deemed to make, any representations or warranties, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and the Company shall not have any liability to you or any of its Representatives resulting from use thereof, except for fraud,\nwillful misconduct, or as specifically agreed to herein. Only those representations or warranties which are made by the Company in a final definitive\nagreement regarding a Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect.\nThis agreement shall be governed by and interpreted according to the laws of the State of New York (exclusive of such State's conflicts of laws\nrules) and subject to the exclusive jurisdiction of the federal or state courts located in Southern District of New York. This Agreement binds the\nParties only with respect to the matters expressly set forth herein. As such, unless and until a definitive agreement regarding a Transaction between\nthe Company and you has been executed, (i) neither the Company nor you will be under any legal obligation of any kind whatsoever to negotiate or\nconsummate a Transaction by virtue of this agreement or any other written or oral expression with respect thereto made by the Company or any\nother party, and (ii) you shall not have any claim whatsoever against the Company or any of their respective directors, officers, employees,\nstockholders, owners, agents or\nrepresentatives, arising out of any Transaction, except for fraud, willful misconduct, or as specifically agreed to herein.\nJFL's obligations under this agreement shall remain in effect for a period of twelve months from the date hereof, unless and until this agreement\nis terminated by the Company or is superseded by another agreement between you and the Company that concerns your use of the Evaluation\nMaterial.\nThis letter agreement shall constitute the full agreement by us with respect to the Evaluation Material submitted by the Company to us and shall\nsupersede any and all prior agreements and understandings relating thereto.\nThis agreement may be executed in counterparts. Please confirm that the foregoing is in accordance with your understanding of our agreement\nby signing and returning to us a copy of this letter.\nVery truly yours,\nOP-TECH Environmental Services, Inc. (the "Company")\nAccepted and agreed to as of the 25 day of January, 2013.\nBy: /s/ CHARLES B. MORGAN\nName: Charles B. Morgan\nTitle: CEO\nCompany: J.F. Lehman & Company\nBy: /s/ JAMES J. MICHAUD\nJames J. Michaud\nQuickLinks\nEXHIBIT (d)(3)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
e3bb6bbcbe57fc224b274c6e2214843a.pdf	effective_date jurisdiction party term	EX-10.19 25 d319036dex1019.htm FORM OF NO COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nLOGO\nGLOBUS MEDICAL, INC.\nNO COMPETITION AND NON-DISCLOSURE\nAGREEMENT\nLOGO\nThis No Competition and Non-Disclosure Agreement (“NCND Agreement”) is made and entered into between Globus Medical, Inc., its subsidiaries\nand divisions including Algea Therapies, Inc. (collectively the “Company”) and\n(“Employee”) effective\n(“Effective Date”).\nACKNOWLEDGEMENTS & DEFINITIONS\nA. The Company is engaged in the design, development, production, distribution and sale of products and services related to the spine\n(“Products”).\nB. Employee performs services for and on behalf of the Company, either as a direct employee or through an independent service contract, for\nwhich Company compensates Employee, which may include services in connection with promotion or sale of Products. Company desires to\nemploy and/or continue to employ Employee, provided that as an express condition of such employment or continued employment, Employee\nenters into this NCND Agreement with Company. In the case of an Employee who is signing this NCND Agreement after the inception of\nhis/her employment relationship with the Company, Employee acknowledges that the Company has provided Employee with valuable\nconsideration in exchange for signing this NCND Agreement.\nC. The parties agree that this NCND Agreement is supported by valuable consideration, that mutual promises and obligations have been\nundertaken by the parties to it, and that this NCND Agreement is entered into voluntarily by the parties.\nD. For purposes of this NCND Agreement the Employee’s performance of services and receipt of compensation from the Company will be\ndefined as the Employment Agreement (the “Employment Agreement”) between the Employee and the Company, whether or not a written\nemployment agreement exists between the Employee and the Company governing said services and compensation.\nE. For purposes of this NCND Agreement, the term of the Employment Agreement (“Employment Agreement Term”) shall be defined as the time\nperiod during which Employee performs services for or on behalf of the Company.\n1\nF. For purposes of this NCND Agreement, the NCND Territory (“NCND Territory”) shall be defined as any geographic area assigned to the\nEmployee within the most recent 12 months of the Employment Agreement Term. In the event that the Employee has been assigned certain\nHospitals (as defined below) and/ or Medical Personnel (as defined below) and not a geographic area within the most recent 12 months of the\nEmployee Agreement Term, the NCND Territory shall be defined as any Hospitals and/or Medical Personnel to which the Employee was\nassigned within the most recent 12 months of the Employee Agreement Term. In the event the Employee has not been assigned to specific\nHospitals and/or Medical Personnel or to a specific geographic region within the most recent 12 months of the Employee Agreement Term, the\nNCND Territory shall be defined as worldwide.\nG. For purposes of this NCND Agreement, Medical Personnel (“Medical Personnel”) shall be defined as orthopedic surgeons, neurosurgeons,\nphysicians, nurses and other medical personnel involved in the implantation, purchase or other handling and usage of the Products, including\nbut not limited to employees, agents or persons who control, direct or influence purchasing decisions of any Hospitals.\nH. For purposes of this NCND Agreement, Hospitals (“Hospitals”) shall be defined as hospitals, surgery centers, medical centers and other health\ncare facilities that purchase Products and the location at which Medical Personnel perform services related to the purchase, implantation or\nother handling and usage of the Products.\nI. Employee will have access to confidential, proprietary and trade secret information (“Confidential Information”) belonging to the Company,\nincluding Confidential Information developed by the Employee (see Section 2.2 below). Such Confidential Information includes, but is not\nlimited to: customer lists; product specifications and attributes; pricing information; technology development plans; forecasts; financial\ninformation; sales strategies and techniques; business records; models; prototypes; schematics; manuals; handbooks; literature; vendors;\nbusiness terms between Company and suppliers; business terms between Company and Hospitals; business terms between Company and\ndistributors; business terms between Company and Medical Personnel. Employee acknowledges that Company owns such Confidential\nInformation and that Employee has no ownership interest in such Confidential Information. Furthermore, Employee acknowledges that the\ndisclosure of such Confidential Information to unauthorized third parties, including Competitive Companies (as defined below) would cause\ngreat and irreparable harm to the Company. Furthermore, Employee acknowledges that Company has a legitimate business interest in the\nprotection of the Confidential Information.\nNO COMPETITION & NO SOLICITATION COVENANT\n1.1 Competitive Activity. For purposes of this NCND Agreement, Competitive Activity (“Competitive Activity”) shall be defined as participation\nin, performance of services for, employment by, ownership of any interest in, or assistance, promotion or organization of, any Competing\nCompany. “Competing Company” is defined as any person, partnership, corporation, firm, limited liability company, association or other\nbusiness entity, other than Globus, that manufactures, designs, develops, sells, markets or distributes products or services\n2\nused in spine surgery; provided that the purchase for investment of not more than five (5%) percent of the total capital stock of such\nCompeting Company whose stock is publicly traded shall not constitute a Competitive Activity.\n1.2 No Competition Period. For purposes of this NCND Agreement, the No Competition Period (“No Competition Period”) shall be defined as the\ntime period encompassing both the Employment Agreement Term and the 12-month period immediately after the termination of the\nEmployment Agreement.\n1.3 No Competition or Solicitation Covenant. During the No Competition Period, Employee agrees not to engage in any Competitive Activity for\nany Competing Company.\nIf, during the last year of employment with Company, Employee was engaged exclusively in non-management field sales activities including\nselling, soliciting the sale or supporting the sale of Products through contact with Hospitals or Medical Personnel, then Employee’s covenants\nunder this paragraph are as follows: Employee agrees not to engage in any Competitive Activity with any Hospitals or Medical Personnel\nduring the Employment Agreement Term. In addition, Employee agrees not to engage in any Competitive Activity with any Hospitals or\nMedical Personal during the No Competition Period in the NCND Territory. Furthermore, during the No Competition period, Employee agrees\nnot to directly or indirectly, either for the Employee’s benefit or the benefit of another entity, solicit, call on, interfere with, attempt to divert,\nentice away, sell to or market to any Hospital in the NCND Territory, or to any Medical Personnel in the NCND Territory who perform any\nservices related to the implantation or other handling and usage of the Products (regardless of whether such services are also provided by the\nMedical Personnel outside the NCND Territory). By way of example, if a physician performs services at two different Hospitals, one within\nand one outside the NCND Territory, the restrictions in this paragraph prohibit the Employee from directly or indirectly soliciting, calling on,\ninterfering with, or attempting to divert, entice away, sell to or market to the physician at either the Hospital within the NCND Territory or the\nHospital outside the NCND Territory.\n1.4 No Solicitation of Company’s Employees or Employees. During the No Competition Period, Employee agrees not to directly or indirectly,\neither for the Employee’s benefit or the benefit of another entity, employ or offer to employ in any capacity, contact or recommend for\nemployment with a Competing Company, contact or recommend for the purposes of entering into a contractual relationship with a Competing\nCompany, or solicit, call on, interfere with, or attempt to divert, or entice away, any individuals who are or were employees, independent\ncontractors, representatives or employees of the Company or of any of the Company’s distributors at any time within the preceding 12 months.\nNON-DISCLOSURE COVENANT\n2.1 Use of Confidential Information. Both during the Employment Agreement Term and after the termination of the Employment Agreement,\nEmployee agrees not to use any Confidential Information except as required to perform its obligations as an Employee of the Company, or\ndisclose to any individual, corporation, partnership or other entity any Confidential Information belonging to the Company, unless Employee is\nrequired to make such disclosure pursuant to\n3\njudicial process. Notwithstanding the foregoing, immediately upon receipt of subpoena or other judicial process requiring disclosure of\nConfidential Information belonging to Company, Employee shall deliver written notice and a complete copy of such process to the Company\nand before responding to such process, allow the Company to take such action as they may deem appropriate under the circumstances to\nprotect their interests in the Confidential Information requested for disclosure.\n2.2 Development of Intellectual Property. Employee may make, discover or develop inventions, ideas, trade secrets, financial materials, computer\nprograms, discoveries, developmental improvements, know-how, processes and devices related to or used in the conduct of Employee’s\nperformance of services for and on behalf of the Company (“Developments”). The Employee agrees to disclose fully and promptly to the\nCompany any said Developments. Furthermore, Employee agrees that the Company is the sole and exclusive owner of said Developments; the\nEmployee retains no ownership in said Developments; and said Developments become part of the Company’s Confidential Information for\npurposes of this NCND Agreement. Company and Employee agree that if the Developments or any portion thereof are copyrightable, it shall\nbe deemed “work for hire” as such term is defined in the U.S. Copyright Act. The Employee shall execute and deliver to the Company any and\nall licenses, applications, assignments and other documents and take any and all actions that the Company may deem necessary or desirable to\nprotect Company’s ownership rights in said Developments.\n2.3 Handling and Return of Confidential Information. Employee shall not physically or electronically remove or make copies of any Confidential\nInformation owned by the Company, except as required by the Employee to properly fulfill their responsibilities as an Employee of the\nCompany. Upon the termination of the Employment Agreement, Employee shall immediately return to the Company any and all Confidential\nInformation in their possession, including any and all copies of said Confidential Information.\n2.4 Fiduciary Duties. Employee agrees that Employee shall treat all Confidential Information entrusted to Employee by Company as a fiduciary,\nand Employee accepts and undertakes all the obligations of a fiduciary, including good faith, trust, confidence and candor, to maintain, protect\nand develop Confidential Information for the benefit of Company.\n2.5 Confidential Information of Others. Employee hereby represents and warrants to the Company that Employee is not bound by any agreement,\nunderstanding or restriction, (including, but not limited to any covenant restricting competition or agreement related to the confidential and\nproprietary information and trade secrets of any third party), that is inconsistent with or prevents or limits the Employee’s ability to fulfill\nhis/her obligations under the Employment Agreement. Furthermore, Employee hereby represents and warrants to the Company that the\nexecution and performance of the Employment Agreement will not result in or constitute a breach of any term or condition of any other\nagreement the Employee is bound by. In performance of his/her duties and obligations under the Employment Agreement, Employee agrees\nnot to disclose the confidential and proprietary information or trade secrets of any third party to the Company.\n4\nREMEDIES\n3.1 Right to Specific Relief. Company and Employee recognize and acknowledge that the limitations set forth in this NCND Agreement are\nproperly required for the adequate protection of the business of the Company, and that violation of any of the provisions of this NCND\nAgreement will cause irreparable injury for which money damages are neither adequate nor ascertainable. Accordingly, Company shall have\nthe right to have the provisions of this NCND Agreement specifically enforced by a court of competent jurisdiction, in addition to any other\nremedies which Company may have in equity or at law, and Employee hereby consents to the entry of an injunction or other similar relief\nwithout the necessity of posting a bond or other financial insurance. Furthermore, Company shall be entitled to recover its costs and expenses\n(including reasonable attorneys’ fees) incurred in enforcing its rights under this NCND Agreement.\nIf a dispute arises under this NCND Agreement, Employee shall have a duty to immediately notify the Company of the name, address and\ntelephone number of Employee’s legal counsel. In the event Employee fails to provide this information, Employee agrees that the Company\nmay seek a temporary restraining order to enforce the provisions of this NCND Agreement on an ex parte basis. Employee acknowledges that\nthe Company’s recovery of damages will not be an adequate means to redress a breach of this NCND Agreement. Nothing contained in this\nparagraph, however, shall prohibit the Company from pursuing any remedies in addition to injunctive relief, including recovery of damages.\n3.2 Right to Recover Attorneys’ Fees and Costs. (a) If the Company seeks a restraining order, an injunction or any other form of equitable relief,\nand recovers any such relief, Company shall be entitled to recover its reasonable attorneys’ fees, court costs, and other costs incurred obtaining\nthat relief (even if other relief sought is denied). (b) If the Company obtains a final judgment of a court of competent jurisdiction, pursuant to\nwhich Employee is determined to have breached his/her obligations under this Agreement, the Company shall be entitled to recover, in\naddition to any award of damages, its reasonable attorneys’ fees, costs, and expenses incurred by the Company in obtaining such judgment.\nAny relief awarded under this subparagraph (b) shall be in addition to any other relief awarded under subparagraph (a). The parties agree that\nthe provisions of this paragraph are reasonable and necessary.\nOTHER MATTERS\n4.1 Condition to Seeking Subsequent Employment. Employee agrees to show a copy of this NCND Agreement to any Competing Company with\nwhom Employee interviews during the Employment Agreement Term or with whom Employee interviews within the 12 month period\nimmediately following the termination of the Employment Agreement Term.\n4.2 Entire Agreement. This NCND Agreement constitutes the entire agreement between the parties relating to the specific matters covered by this\nNCND Agreement and supersedes all prior agreements, whether written or oral. No modifications or waiver of any part of this NCND\nAgreement shall be binding upon either party unless in writing.\n5\n4.3 Waiver. The waiver of a breach of any provision of this NCND Agreement by any party shall not operate or be construed as a waiver of any\nprovision of this NCND Agreement or consent of any subsequent breach.\n4.4 Severability. If any term or provision of this NCND Agreement shall be determined invalid or unenforceable to any extent or in any\napplication, then the remainder of this NCND Agreement shall not be affected thereby, and such term or provision shall be deemed modified to\nthe minimum extent necessary to make it consistent with applicable law, except to such extent or in such application, shall not be affected\nthereby, every term and provision of this NCND Agreement as so modified if necessary, shall be enforced to the fullest extent and in the\nbroadest application permitted by law.\n4.5 Governing Law. In order to maintain uniformity in the interpretation of this NCND Agreement the parties have expressly agreed that this\nNCND Agreement, the parties’ performance hereunder and the relationship between them shall be governed by, construed and enforced in\naccordance with the laws of the Commonwealth of Pennsylvania, without regard to the principles thereof regarding conflicts of laws.\n4.6 Transfer or Assignment; Binding Nature. Company may transfer or assign its rights and obligations pursuant to this NCND Agreement to its\nsuccessors or assigns. Employee shall not assign any of his or her rights or delegate any of his or her duties or obligations under this NCND\nAgreement. This NCND Agreement shall be binding upon and inure to the benefit of the parties hereto and to the Company’s successors and\nassigns.\n4.7 Tolling. Employee understands and agrees that in the event of any breach of his/her obligations under paragraphs 1.3 or 1.4 of this NCND\nAgreement, the No Competition Period shall be automatically tolled for the amount of time the violation continues.\nIN WITNESS WHEREOF, the undersigned have executed this NCND AGREEMENT, intending to be bound under their seals, effective as of\nthe day and year set forth above.\nCOMPANY:\nEMPLOYEE:\nBy:\nBy:\nDATE:\nDATE:\n6	EX-10.19 25 d319036dex1019.htm FORM OF NO COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nLOGO GLOBUS MEDICAL, INC.\nNO COMPETITION AND NON-DISCLOSURE ».LOGO\nAGREEMENT\nThis No Competition and Non-Disclosure Agreement (“NCND Agreement”) is made and entered into between Globus Medical, Inc., its subsidiaries\nand divisions including Algea Therapies, Inc. (collectively the “Company”) and (“Employee”) effective (“Effective Date”).\nACKNOWLEDGEMENTS & DEFINITIONS\nA. The Company is engaged in the design, development, production, distribution and sale of products and services related to the spine\n(“Products™).\nB.  Employee performs services for and on behalf of the Company, either as a direct employee or through an independent service contract, for\nwhich Company compensates Employee, which may include services in connection with promotion or sale of Products. Company desires to\nemploy and/or continue to employ Employee, provided that as an express condition of such employment or continued employment, Employee\nenters into this NCND Agreement with Company. In the case of an Employee who is signing this NCND Agreement after the inception of\nhis/her employment relationship with the Company, Employee acknowledges that the Company has provided Employee with valuable\nconsideration in exchange for signing this NCND Agreement.\nC.  The parties agree that this NCND Agreement is supported by valuable consideration, that mutual promises and obligations have been\nundertaken by the parties to it, and that this NCND Agreement is entered into voluntarily by the parties.\nD. For purposes of this NCND Agreement the Employee’s performance of services and receipt of compensation from the Company will be\ndefined as the Employment Agreement (the “Employment Agreement”) between the Employee and the Company, whether or not a written\nemployment agreement exists between the Employee and the Company governing said services and compensation.\nE.  For purposes of this NCND Agreement, the term of the Employment Agreement (“Employment Agreement Term”) shall be defined as the time\nperiod during which Employee performs services for or on behalf of the Company.\n1\n1.1\nFor purposes of this NCND Agreement, the NCND Territory (“NCND Territory™) shall be defined as any geographic area assigned to the\nEmployee within the most recent 12 months of the Employment Agreement Term. In the event that the Employee has been assigned certain\nHospitals (as defined below) and/ or Medical Personnel (as defined below) and not a geographic area within the most recent 12 months of the\nEmployee Agreement Term, the NCND Territory shall be defined as any Hospitals and/or Medical Personnel to which the Employee was\nassigned within the most recent 12 months of the Employee Agreement Term. In the event the Employee has not been assigned to specific\nHospitals and/or Medical Personnel or to a specific geographic region within the most recent 12 months of the Employee Agreement Term, the\nNCND Territory shall be defined as worldwide.\nFor purposes of this NCND Agreement, Medical Personnel (“Medical Personnel”) shall be defined as orthopedic surgeons, neurosurgeons,\nphysicians, nurses and other medical personnel involved in the implantation, purchase or other handling and usage of the Products, including\nbut not limited to employees, agents or persons who control, direct or influence purchasing decisions of any Hospitals.\nFor purposes of this NCND Agreement, Hospitals (“Hospitals”) shall be defined as hospitals, surgery centers, medical centers and other health\ncare facilities that purchase Products and the location at which Medical Personnel perform services related to the purchase, implantation or\nother handling and usage of the Products.\nEmployee will have access to confidential, proprietary and trade secret information (“Confidential Information”) belonging to the Company,\nincluding Confidential Information developed by the Employee (see Section 2.2 below). Such Confidential Information includes, but is not\nlimited to: customer lists; product specifications and attributes; pricing information; technology development plans; forecasts; financial\ninformation; sales strategies and techniques; business records; models; prototypes; schematics; manuals; handbooks; literature; vendors;\nbusiness terms between Company and suppliers; business terms between Company and Hospitals; business terms between Company and\ndistributors; business terms between Company and Medical Personnel. Employee acknowledges that Company owns such Confidential\nInformation and that Employee has no ownership interest in such Confidential Information. Furthermore, Employee acknowledges that the\ndisclosure of such Confidential Information to unauthorized third parties, including Competitive Companies (as defined below) would cause\ngreat and irreparable harm to the Company. Furthermore, Employee acknowledges that Company has a legitimate business interest in the\nprotection of the Confidential Information.\nNO COMPETITION & NO SOLICITATION COVENANT\nCompetitive Activity. For purposes of this NCND Agreement, Competitive Activity (“Competitive Activity”) shall be defined as participation\nin, performance of services for, employment by, ownership of any interest in, or assistance, promotion or organization of, any Competing\nCompany. “Competing Company” is defined as any person, partnership, corporation, firm, limited liability company, association or other\nbusiness entity, other than Globus, that manufactures, designs, develops, sells, markets or distributes products or services\n2\n1.2\n1.3\n1.4\n2.1\nused in spine surgery; provided that the purchase for investment of not more than five (5%) percent of the total capital stock of such\nCompeting Company whose stock is publicly traded shall not constitute a Competitive Activity.\nNo Competition Period. For purposes of this NCND Agreement, the No Competition Period (“No Competition Period”) shall be defined as the\ntime period encompassing both the Employment Agreement Term and the 12-month period immediately after the termination of the\nEmployment Agreement.\nNo Competition or Solicitation Covenant. During the No Competition Period, Employee agrees not to engage in any Competitive Activity for\nany Competing Company.\nIf, during the last year of employment with Company, Employee was engaged exclusively in non-management field sales activities including\nselling, soliciting the sale or supporting the sale of Products through contact with Hospitals or Medical Personnel, then Employee’s covenants\nunder this paragraph are as follows: Employee agrees not to engage in any Competitive Activity with any Hospitals or Medical Personnel\nduring the Employment Agreement Term. In addition, Employee agrees not to engage in any Competitive Activity with any Hospitals or\nMedical Personal during the No Competition Period in the NCND Territory. Furthermore, during the No Competition period, Employee agrees\nnot to directly or indirectly, either for the Employee’s benefit or the benefit of another entity, solicit, call on, interfere with, attempt to divert,\nentice away, sell to or market to any Hospital in the NCND Territory, or to any Medical Personnel in the NCND Territory who perform any\nservices related to the implantation or other handling and usage of the Products (regardless of whether such services are also provided by the\nMedical Personnel outside the NCND Territory). By way of example, if a physician performs services at two different Hospitals, one within\nand one outside the NCND Territory, the restrictions in this paragraph prohibit the Employee from directly or indirectly soliciting, calling on,\ninterfering with, or attempting to divert, entice away, sell to or market to the physician at either the Hospital within the NCND Territory or the\nHospital outside the NCND Territory.\neither for the Employee’s benefit or the benefit of another entity, employ or offer to employ in any capacity, contact or recommend for\nemployment with a Competing Company, contact or recommend for the purposes of entering into a contractual relationship with a Competing\nCompany, or solicit, call on, interfere with, or attempt to divert, or entice away, any individuals who are or were employees, independent\ncontractors, representatives or employees of the Company or of any of the Company’s distributors at any time within the preceding 12 months.\nNON-DISCLOSURE COVENANT\nUse of Confidential Information. Both during the Employment Agreement Term and after the termination of the Employment Agreement,\nEmployee agrees not to use any Confidential Information except as required to perform its obligations as an Employee of the Company, or\ndisclose to any individual, corporation, partnership or other entity any Confidential Information belonging to the Company, unless Employee is\nrequired to make such disclosure pursuant to\n2.2\n2.3\n24\n2.5\njudicial process. Notwithstanding the foregoing, immediately upon receipt of subpoena or other judicial process requiring disclosure of\nConfidential Information belonging to Company, Employee shall deliver written notice and a complete copy of such process to the Company\nand before responding to such process, allow the Company to take such action as they may deem appropriate under the circumstances to\nprotect their interests in the Confidential Information requested for disclosure.\nDevelopment of Intellectual Property. Employee may make, discover or develop inventions, ideas, trade secrets, financial materials, computer\nprograms, discoveries, developmental improvements, know-how, processes and devices related to or used in the conduct of Employee’s\nperformance of services for and on behalf of the Company (“Developments”). The Employee agrees to disclose fully and promptly to the\nCompany any said Developments. Furthermore, Employee agrees that the Company is the sole and exclusive owner of said Developments; the\nEmployee retains no ownership in said Developments; and said Developments become part of the Company’s Confidential Information for\npurposes of this NCND Agreement. Company and Employee agree that if the Developments or any portion thereof are copyrightable, it shall\nbe deemed “work for hire” as such term is defined in the U.S. Copyright Act. The Employee shall execute and deliver to the Company any and\nall licenses, applications, assignments and other documents and take any and all actions that the Company may deem necessary or desirable to\nprotect Company’s ownership rights in said Developments.\nHandling and Return of Confidential Information. Employee shall not physically or electronically remove or make copies of any Confidential\nInformation owned by the Company, except as required by the Employee to properly fulfill their responsibilities as an Employee of the\nCompany. Upon the termination of the Employment Agreement, Employee shall immediately return to the Company any and all Confidential\nInformation in their possession, including any and all copies of said Confidential Information.\nFiduciary Duties. Employee agrees that Employee shall treat all Confidential Information entrusted to Employee by Company as a fiduciary,\nand Employee accepts and undertakes all the obligations of a fiduciary, including good faith, trust, confidence and candor, to maintain, protect\nand develop Confidential Information for the benefit of Company.\n \nConfidential Information of Others. Employee hereby represents and warrants to the Company that Employee is not bound by any agreement,\nunderstanding or restriction, (including, but not limited to any covenant restricting competition or agreement related to the confidential and\nproprietary information and trade secrets of any third party), that is inconsistent with or prevents or limits the Employee’s ability to fulfill\nhis/her obligations under the Employment Agreement. Furthermore, Employee hereby represents and warrants to the Company that the\nexecution and performance of the Employment Agreement will not result in or constitute a breach of any term or condition of any other\nagreement the Employee is bound by. In performance of his/her duties and obligations under the Employment Agreement, Employee agrees\nnot to disclose the confidential and proprietary information or trade secrets of any third party to the Company.\n4\n3.1\n3.2\n4.1\n4.2\nREMEDIES\nRight to Specific Relief. Company and Employee recognize and acknowledge that the limitations set forth in this NCND Agreement are\nproperly required for the adequate protection of the business of the Company, and that violation of any of the provisions of this NCND\nAgreement will cause irreparable injury for which money damages are neither adequate nor ascertainable. Accordingly, Company shall have\nthe right to have the provisions of this NCND Agreement specifically enforced by a court of competent jurisdiction, in addition to any other\nremedies which Company may have in equity or at law, and Employee hereby consents to the entry of an injunction or other similar relief\nwithout the necessity of posting a bond or other financial insurance. Furthermore, Company shall be entitled to recover its costs and expenses\n(including reasonable attorneys’ fees) incurred in enforcing its rights under this NCND Agreement.\nIf a dispute arises under this NCND Agreement, Employee shall have a duty to immediately notify the Company of the name, address and\ntelephone number of Employee’s legal counsel. In the event Employee fails to provide this information, Employee agrees that the Company\nmay seek a temporary restraining order to enforce the provisions of this NCND Agreement on an ex parte basis. Employee acknowledges that\nthe Company’s recovery of damages will not be an adequate means to redress a breach of this NCND Agreement. Nothing contained in this\nparagraph, however, shall prohibit the Company from pursuing any remedies in addition to injunctive relief, including recovery of damages.\nRight to Recover Attorneys’ Fees and Costs. (a) If the Company seeks a restraining order, an injunction or any other form of equitable relief,\nand recovers any such relief, Company shall be entitled to recover its reasonable attorneys’ fees, court costs, and other costs incurred obtaining\nthat relief (even if other relief sought is denied). (b) If the Company obtains a final judgment of a court of competent jurisdiction, pursuant to\nwhich Employee is determined to have breached his/her obligations under this Agreement, the Company shall be entitled to recover, in\naddition to any award of damages, its reasonable attorneys’ fees, costs, and expenses incurred by the Company in obtaining such judgment.\nAny relief awarded under this subparagraph (b) shall be in addition to any other relief awarded under subparagraph (a). The parties agree that\nthe provisions of this paragraph are reasonable and necessary.\nOTHER MATTERS\nwhom Employee interviews during the Employment Agreement Term or with whom Employee interviews within the 12 month period\nimmediately following the termination of the Employment Agreement Term.\nEntire Agreement. This NCND Agreement constitutes the entire agreement between the parties relating to the specific matters covered by this\nNCND Agreement and supersedes all prior agreements, whether written or oral. No modifications or waiver of any part of this NCND\nAgreement shall be binding upon either party unless in writing.\n \n4.3\n4.4\n4.5\n4.6\n4.7\nWaiver. The waiver of a breach of any provision of this NCND Agreement by any party shall not operate or be construed as a waiver of any\nprovision of this NCND Agreement or consent of any subsequent breach.\nSeverability. If any term or provision of this NCND Agreement shall be determined invalid or unenforceable to any extent or in any\napplication, then the remainder of this NCND Agreement shall not be affected thereby, and such term or provision shall be deemed modified to\nthe minimum extent necessary to make it consistent with applicable law, except to such extent or in such application, shall not be affected\nthereby, every term and provision of this NCND Agreement as so modified if necessary, shall be enforced to the fullest extent and in the\nbroadest application permitted by law.\nGoverning Law. In order to maintain uniformity in the interpretation of this NCND Agreement the parties have expressly agreed that this\nNCND Agreement, the parties’ performance hereunder and the relationship between them shall be governed by, construed and enforced in\naccordance with the laws of the Commonwealth of Pennsylvania, without regard to the principles thereof regarding conflicts of laws.\nTransfer or Assignment; Binding Nature. Company may transfer or assign its rights and obligations pursuant to this NCND Agreement to its\nsuccessors or assigns. Employee shall not assign any of his or her rights or delegate any of his or her duties or obligations under this NCND\nAgreement. This NCND Agreement shall be binding upon and inure to the benefit of the parties hereto and to the Company’s successors and\nassigns.\nTolling. Employee understands and agrees that in the event of any breach of his/her obligations under paragraphs 1.3 or 1.4 of this NCND\nAgreement, the No Competition Period shall be automatically tolled for the amount of time the violation continues.\nIN WITNESS WHEREOF, the undersigned have executed this NCND AGREEMENT, intending to be bound under their seals, effective as of\nthe day and year set forth above.\nCOMPANY: EMPLOYEE:\nBy: By:\nDATE: DATE:	EX-10.19 25 d319036dex1019.ht FORM OF NO COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nLOGO\nGLOBUS MEDICAL, INC.\nNO COMPETITION AND NON-DISCLOSURE\nALOGO\nAGREEMENT\nThis No Competition and Non-Disclosure Agreement ("NCND Agreement") is made and entered into between Globus Medical, Inc., its subsidiaries\nand divisions including Algea Therapies, Inc. (collectively the "Company") and\n("Employee") effective\n("Effective Date").\nACKNOWLEDGEMENTS & DEFINITIONS\nA.\nThe Company is engaged in the design, development, production, distribution and sale of products and services related to the spine\n("Products").\nB. Employee performs services for and on behalf of the Company, either as a direct employee or through an independent service contract, for\nwhich Company compensates Employee, which may include services in connection with promotion or sale of Products. Company desires to\nemploy and/or continue to employ Employee, provided that as an express condition of such employment or continued employment, Employee\nenters into this NCND Agreement with Company. In the case of an Employee who is signing this NCND Agreement after the inception of\nhis/her employment relationship with the Company, Employee acknowledges that the Company has provided Employee with valuable\nconsideration in exchange for signing this NCND Agreement.\nC.\nThe parties agree that this NCND Agreement is supported by valuable consideration, that mutual promises and obligations have been\nundertaken by the parties to it, and that this NCND Agreement is entered into voluntarily by the parties.\nD.\nFor purposes of this NCND Agreement the Employee's performance of services and receipt of compensation from the Company will be\ndefined as the Employment Agreement (the "Employment Agreement") between the Employee and the Company, whether or not a written\nemployment agreement exists between the Employee and the Company governing said services and compensation.\nE.\nFor purposes of this NCND Agreement, the term of the Employment Agreement ("Employment Agreement Term") shall be defined as the time\nperiod during which Employee performs services for or on behalf of the Company.\n1\nF.\nFor purposes of this NCND Agreement, the NCND Territory ("NCND Territory") shall be defined as any geographic area assigned to the\nEmployee within the most recent 12 months of the Employment Agreement Term. In the event that the Employee has been assigned certain\nHospitals (as defined below) and/ or Medical Personnel (as defined below) and not a geographic area within the most recent 12 months of the\nEmployee Agreement Term, the NCND Territory shall be defined as any Hospitals and/or Medical Personnel to which the Employee was\nassigned within the most recent 12 months of the Employee Agreement Term. In the event the Employee has not been assigned to specific\nHospitals and/or Medical Personnel or to a specific geographic region within the most recent 12 months of the Employee Agreement Term, the\nNCND Territory shall be defined as worldwide.\nG.\nFor purposes of this NCND Agreement, Medical Personnel ("Medical Personnel") shall be defined as orthopedic surgeons, neurosurgeons,\nphysicians, nurses and other medical personnel involved in the implantation, purchase or other handling and usage of the Products, including\nbut\nnot limited to employees, agents or persons who control, direct or influence purchasing decisions of any Hospitals.\nH.\nFor purposes of this NCND Agreement, Hospitals ("Hospitals") shall be defined as hospitals, surgery centers, medical centers and other health\ncare facilities that purchase Products and the location at which Medical Personnel perform services related to the purchase, implantation or\nother handling and usage of the Products.\nI.\nEmployee will have access to confidential, proprietary and trade secret information ("Confidential Information") belonging to the Company,\nincluding Confidential Information developed by the Employee (see Section 2.2 below). Such Confidential Information includes, but is not\nlimited to: customer lists; product specifications and attributes; pricing information; technology development plans; forecasts; financial\ninformation; sales strategies and techniques; business records; models; prototypes; schematics; manuals; handbooks; literature; vendors;\nbusiness terms between Company and suppliers; business terms between Company and Hospitals; business terms between Company and\ndistributors; business terms between Company and Medical Personnel. Employee acknowledges that Company owns such Confidential\nInformation and that Employee has no ownership interest in such Confidential Information. Furthermore, Employee acknowledges that the\ndisclosure of such Confidential Information to unauthorized third parties, including Competitive Companies (as defined below) would cause\ngreat and irreparable harm to the Company. Furthermore, Employee acknowledges that Company has a legitimate business interest in the\nprotection of the Confidential Information.\nNO COMPETITION & NO SOLICITATION COVENANT\n1.1 Competitive Activity.. For purposes of this NCND Agreement, Competitive Activity ("Competitive Activity") shall be defined as participation\nin, performance of services for, employment by, ownership of any interest in, or assistance, promotion or organization of, any Competing\nCompany. "Competing Company" is defined as any person, partnership, corporation, firm, limited liability company, association or other\nbusiness entity, other than Globus, that manufactures, designs, develops, sells, markets or distributes products or services\n2\nused in spine surgery; provided that the purchase for investment of not more than five (5%) percent of the total capital stock of such\nCompeting Company whose stock is publicly traded shall not constitute a Competitive Activity.\n1.2\nNo Competition Period. For purposes of this NCND Agreement, the No Competition Period ("No Competition Period") shall be defined as the\ntime period encompassing both the Employment Agreement Term and the 12-month period immediately after the termination of the\nEmployment Agreement.\n1.3 No Competition or Solicitation Covenant. During the No Competition Period, Employee agrees not to engage in any Competitive Activity for\nany Competing Company.\nIf,\nduring the last year of employment with Company, Employee was engaged exclusively in non-management field sales activities including\nselling, soliciting the sale or supporting the sale of Products through contact with Hospitals or Medical Personnel, then Employee's covenants\nunder this paragraph are as follows: Employee agrees not to engage in any Competitive Activity with any Hospitals or Medical Personnel\nduring the Employment Agreement Term. In addition, Employee agrees not to engage in any Competitive Activity with any Hospitals or\nMedical Personal during the No Competition Period in the NCND Territory. Furthermore, during the No Competition period, Employee agrees\nnot to directly or indirectly, either for the Employee's benefit or the benefit of another entity, solicit, call on, interfere with, attempt to divert,\nentice away, sell to or market to any Hospital in the NCND Territory, or to any Medical Personnel in the NCND Territory who perform any\nservices related to the implantation or other handling and usage of the Products (regardless of whether such services are also provided by the\nMedical Personnel outside the NCND Territory). By way of example, if a physician performs services at two different Hospitals, one within\nand one outside the NCND Territory, the restrictions in this paragraph prohibit the Employee from directly or indirectly soliciting, calling on,\ninterfering with, or attempting to divert, entice away, sell to or market to the physician at either the Hospital within the NCND Territory or the\nHospital outside the NCND Territory.\n1.4\nNo Solicitation of Company's Employees or Employees. During the No Competition Period, Employee agrees not to directly or indirectly,\neither for the Employee's benefit or the benefit of another entity, employ or offer to employ in any capacity, contact or recommend for\nemployment with a Competing Company, contact or recommend for the purposes of entering into a contractual relationship with a Competing\nCompany, or solicit, call on, interfere with, or attempt to divert, or entice away, any individuals who are or were employees, independent\ncontractors, representatives or employees of the Company or of any of the Company's distributors at any time within the preceding 12 months.\nNON-DISCLOSURE COVENANT\n2.1 Use of Confidential Information. Both during the Employment Agreement Term and after the termination of the Employment Agreement,\nEmployee agrees not to use any Confidential Information except as required to perform its obligations as an Employee of the Company, or\ndisclose to any individual, corporation, partnership or other entity any Confidentia Information belonging to the Company, unless Employee is\nrequired to make such disclosure pursuant to\n3\njudicial process. Notwithstanding the foregoing, immediately upon receipt of subpoena or other judicial process requiring disclosure of\nConfidential Information belonging to Company, Employee shall deliver written notice and a complete copy of such process to the Company\nand before responding to such process, allow the Company to take such action as they may deem appropriate under the circumstances to\nprotect their interests in the Confidential Information requested for disclosure.\n2.2\nDevelopment of Intellectual Property.. Employee may make, discover or develop inventions, ideas, trade secrets, financial materials, computer\nprograms, discoveries, developmental improvements, know-how, processes and devices related to or used in the conduct of Employee's\nperformance of services for and on behalf of the Company ("Developments"). The Employee agrees to disclose fully and promptly to the\nCompany any said Developments. Furthermore, Employee agrees that the Company is the sole and exclusive owner of said Developments; the\nEmployee retains no ownership in said Developments; and said Developments become part of the Company's Confidential Information for\npurposes of this NCND Agreement. Company and Employee agree that if the Developments or any portion thereof are copyrightable, it shall\nbe\ndeemed "'work for hire" as such term is defined in the U.S. Copyright Act. The Employee shall execute and deliver to the Company any and\nall licenses, applications, assignments and other documents and take any and all actions that the Company may deem necessary or desirable\nto\nprotect Company's ownership rights in said Developments.\n2.3\nHandling and Return of Confidential Information. Employee shall not physically or electronically remove or make copies of any Confidential\nInformation owned by the Company, except as required by the Employee to properly fulfill their responsibilities as an Employee of the\nCompany. Upon the termination of the Employment Agreement, Employee shall immediately return to the Company any and all Confidential\nInformation in their possession, including any and all copies of said Confidential Information.\n2.4 Fiduciary Duties. Employee agrees that Employee shall treat all Confidential Information entrusted to Employee by Company as a fiduciary,\nand Employee accepts and undertakes all the obligations of a fiduciary, including good faith, trust, confidence and candor, to maintain, protect\nand develop Confidential Information for the benefit of Company.\n2.5\nConfidential Information of Others. Employee hereby represents and warrants to the Company that Employee is not bound by any agreement,\nunderstanding or restriction, (including, but not limited to any covenant restricting competition or agreement related to the confidential and\nproprietary information and trade secrets of any third party), that is inconsistent with or prevents or limits the Employee's ability to fulfill\nhis/her obligations under the Employment Agreement. Furthermore, Employee hereby represents and warrants to the Company that the\nexecution and performance of the Employment Agreement will not result in or constitute a breach of any term or condition of any other\nagreement the Employee is bound by. In performance of his/her duties and obligations under the Employment Agreement, Employee agrees\nnot to disclose the confidential and proprietary information or trade secrets of any third party to the Company.\n4\nREMEDIES\n3.1 Right to Specific Relief. Company and Employee recognize and acknowledge that the limitations set forth in this NCND Agreement are\nproperly required for the adequate protection of the business of the Company, and that violation of any of the provisions of this NCND\nAgreement will cause irreparable injury for which money damages are neither adequate nor ascertainable. Accordingly, Company shall have\nthe right to have the provisions of this NCND Agreement specifically enforced by a court of competent jurisdiction, in addition to any other\nremedies which Company may have in equity or at law, and Employee hereby consents to the entry of an injunction or other similar relief\nwithout the necessity of posting a bond or other financial insurance. Furthermore, Company shall be entitled to recover its costs and expenses\n(including reasonable attorneys' fees) incurred in enforcing its rights under this NCND Agreement.\nIf a dispute arises under this NCND Agreement, Employee shall have a duty to immediately notify the Company of the name, address and\ntelephone number of Employee's legal counsel. In the event Employee fails to provide this information, Employee agrees that the Company\nmay seek a temporary restraining order to enforce the provisions of this NCND Agreement on an xparte basis. Employee acknowledges that\nthe Company's recovery of damages will not be an adequate means to redress a breach of this NCND Agreement. Nothing contained in this\nparagraph, however, shall prohibit the Company from pursuing any remedies in addition to injunctive relief, including recovery of damages.\n3.2 Right to Recover Attorneys' Fees and Costs. (a) If the Company seeks a restraining order, an injunction or any other form of equitable relief,\nand recovers any such relief, Company shall be entitled to recover its reasonable attorneys' fees, court costs, and other costs incurred obtaining\nthat relief (even if other relief sought is denied). (b) If the Company obtains a final judgment of a court of competent jurisdiction, pursuant to\nwhich Employee is determined to have breached his/her obligations under this Agreement, the Company shall be entitled to recover, in\naddition to any award of damages, its reasonable attorneys' fees, costs, and expenses incurred by the Company in obtaining such judgment.\nAny relief awarded under this subparagraph (b) shall be in addition to any other relief awarded under subparagraph (a). The parties agree that\nthe provisions of this paragraph are reasonable and necessary.\nOTHER MATTERS\n4.1\nCondition to Seeking Subsequent Employment. Employee agrees to show a copy of this NCND Agreement to any Competing Company with\nwhom Employee interviews during the Employment Agreement Term or with whom Employee interviews within the 12 month period\nimmediately following the termination of the Employment Agreement Term.\n4.2\nEntire Agreement. This NCND Agreement constitutes the entire agreement between the parties relating to the specific matters covered by this\nNCND Agreement and supersedes all prior agreements, whether written or oral. No modifications or waiver of any part of this NCND\nAgreement shall be binding upon either party unless in writing.\n5\n4.3 Waiver. The waiver of a breach of any provision of this NCND Agreement by any party shall not operate or be construed as a waiver of any\nprovision of this NCND Agreement or consent of any subsequent breach.\n4.4\nSeverability.. If any term or provision of this NCND Agreement shall be determined invalid or unenforceable to any extent or in any\napplication, then the remainder of this NCND Agreement shall not be affected thereby, and such term or provision shall be deemed modified\nto\nthe minimum extent necessary to make it consistent with applicable law, except to such extent or in such application, shall not be affected\nthereby, every term and provision of this NCND Agreement as SO modified if necessary, shall be enforced to the fullest extent and in the\nbroadest application permitted by law.\n4.5\nGoverning Law. In order to maintain uniformity in the interpretation of this NCND Agreement the parties have expressly agreed that this\nNCND Agreement, the parties' performance hereunder and the relationship between them shall be governed by, construed and enforced in\naccordance with the laws of the Commonwealth of Pennsylvania, without regard to the principles thereof regarding conflicts of laws.\n4.6 Transfer or Assignment; Binding Nature. Company may transfer or assign its rights and obligations pursuant to this NCND Agreement to its\nsuccessors or assigns. Employee shall not assign any of his or her rights or delegate any of his or her duties or obligations under this NCND\nAgreement. This NCND Agreement shall be binding upon and inure to the benefit of the parties hereto and to the Company's successors and\nassigns.\n4.7 Tolling Employee understands and agrees that in the event of any breach of his/her obligations under paragraphs 1.3 or 1.4 of this NCND\nAgreement, the No Competition Period shall be automatically tolled for the amount of time the violation continues.\nIN WITNESS WHEREOF, the undersigned have executed this NCND AGREEMENT, intending to be bound under their seals, effective as of\nthe day and year set forth above.\nCOMPANY:\nEMPLOYEE:\nBy:\nBy:\nDATE:\nDATE:\n6	EX-10.19 25 d319036dex1019.htm FORM OF NO COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nLOGO\nGLOBUS MEDICAL, INC.\nNO COMPETITION AND NON-DISCLOSURE\nAGREEMENT\nLOGO\nThis No Competition and Non-Disclosure Agreement (“NCND Agreement”) is made and entered into between Globus Medical, Inc., its subsidiaries\nand divisions including Algea Therapies, Inc. (collectively the “Company”) and\n(“Employee”) effective\n(“Effective Date”).\nACKNOWLEDGEMENTS & DEFINITIONS\nA. The Company is engaged in the design, development, production, distribution and sale of products and services related to the spine\n(“Products”).\nB. Employee performs services for and on behalf of the Company, either as a direct employee or through an independent service contract, for\nwhich Company compensates Employee, which may include services in connection with promotion or sale of Products. Company desires to\nemploy and/or continue to employ Employee, provided that as an express condition of such employment or continued employment, Employee\nenters into this NCND Agreement with Company. In the case of an Employee who is signing this NCND Agreement after the inception of\nhis/her employment relationship with the Company, Employee acknowledges that the Company has provided Employee with valuable\nconsideration in exchange for signing this NCND Agreement.\nC. The parties agree that this NCND Agreement is supported by valuable consideration, that mutual promises and obligations have been\nundertaken by the parties to it, and that this NCND Agreement is entered into voluntarily by the parties.\nD. For purposes of this NCND Agreement the Employee’s performance of services and receipt of compensation from the Company will be\ndefined as the Employment Agreement (the “Employment Agreement”) between the Employee and the Company, whether or not a written\nemployment agreement exists between the Employee and the Company governing said services and compensation.\nE. For purposes of this NCND Agreement, the term of the Employment Agreement (“Employment Agreement Term”) shall be defined as the time\nperiod during which Employee performs services for or on behalf of the Company.\n1\nF. For purposes of this NCND Agreement, the NCND Territory (“NCND Territory”) shall be defined as any geographic area assigned to the\nEmployee within the most recent 12 months of the Employment Agreement Term. In the event that the Employee has been assigned certain\nHospitals (as defined below) and/ or Medical Personnel (as defined below) and not a geographic area within the most recent 12 months of the\nEmployee Agreement Term, the NCND Territory shall be defined as any Hospitals and/or Medical Personnel to which the Employee was\nassigned within the most recent 12 months of the Employee Agreement Term. In the event the Employee has not been assigned to specific\nHospitals and/or Medical Personnel or to a specific geographic region within the most recent 12 months of the Employee Agreement Term, the\nNCND Territory shall be defined as worldwide.\nG. For purposes of this NCND Agreement, Medical Personnel (“Medical Personnel”) shall be defined as orthopedic surgeons, neurosurgeons,\nphysicians, nurses and other medical personnel involved in the implantation, purchase or other handling and usage of the Products, including\nbut not limited to employees, agents or persons who control, direct or influence purchasing decisions of any Hospitals.\nH. For purposes of this NCND Agreement, Hospitals (“Hospitals”) shall be defined as hospitals, surgery centers, medical centers and other health\ncare facilities that purchase Products and the location at which Medical Personnel perform services related to the purchase, implantation or\nother handling and usage of the Products.\nI. Employee will have access to confidential, proprietary and trade secret information (“Confidential Information”) belonging to the Company,\nincluding Confidential Information developed by the Employee (see Section 2.2 below). Such Confidential Information includes, but is not\nlimited to: customer lists; product specifications and attributes; pricing information; technology development plans; forecasts; financial\ninformation; sales strategies and techniques; business records; models; prototypes; schematics; manuals; handbooks; literature; vendors;\nbusiness terms between Company and suppliers; business terms between Company and Hospitals; business terms between Company and\ndistributors; business terms between Company and Medical Personnel. Employee acknowledges that Company owns such Confidential\nInformation and that Employee has no ownership interest in such Confidential Information. Furthermore, Employee acknowledges that the\ndisclosure of such Confidential Information to unauthorized third parties, including Competitive Companies (as defined below) would cause\ngreat and irreparable harm to the Company. Furthermore, Employee acknowledges that Company has a legitimate business interest in the\nprotection of the Confidential Information.\nNO COMPETITION & NO SOLICITATION COVENANT\n1.1 Competitive Activity. For purposes of this NCND Agreement, Competitive Activity (“Competitive Activity”) shall be defined as participation\nin, performance of services for, employment by, ownership of any interest in, or assistance, promotion or organization of, any Competing\nCompany. “Competing Company” is defined as any person, partnership, corporation, firm, limited liability company, association or other\nbusiness entity, other than Globus, that manufactures, designs, develops, sells, markets or distributes products or services\n2\nused in spine surgery; provided that the purchase for investment of not more than five (5%) percent of the total capital stock of such\nCompeting Company whose stock is publicly traded shall not constitute a Competitive Activity.\n1.2 No Competition Period. For purposes of this NCND Agreement, the No Competition Period (“No Competition Period”) shall be defined as the\ntime period encompassing both the Employment Agreement Term and the 12-month period immediately after the termination of the\nEmployment Agreement.\n1.3 No Competition or Solicitation Covenant. During the No Competition Period, Employee agrees not to engage in any Competitive Activity for\nany Competing Company.\nIf, during the last year of employment with Company, Employee was engaged exclusively in non-management field sales activities including\nselling, soliciting the sale or supporting the sale of Products through contact with Hospitals or Medical Personnel, then Employee’s covenants\nunder this paragraph are as follows: Employee agrees not to engage in any Competitive Activity with any Hospitals or Medical Personnel\nduring the Employment Agreement Term. In addition, Employee agrees not to engage in any Competitive Activity with any Hospitals or\nMedical Personal during the No Competition Period in the NCND Territory. Furthermore, during the No Competition period, Employee agrees\nnot to directly or indirectly, either for the Employee’s benefit or the benefit of another entity, solicit, call on, interfere with, attempt to divert,\nentice away, sell to or market to any Hospital in the NCND Territory, or to any Medical Personnel in the NCND Territory who perform any\nservices related to the implantation or other handling and usage of the Products (regardless of whether such services are also provided by the\nMedical Personnel outside the NCND Territory). By way of example, if a physician performs services at two different Hospitals, one within\nand one outside the NCND Territory, the restrictions in this paragraph prohibit the Employee from directly or indirectly soliciting, calling on,\ninterfering with, or attempting to divert, entice away, sell to or market to the physician at either the Hospital within the NCND Territory or the\nHospital outside the NCND Territory.\n1.4 No Solicitation of Company’s Employees or Employees. During the No Competition Period, Employee agrees not to directly or indirectly,\neither for the Employee’s benefit or the benefit of another entity, employ or offer to employ in any capacity, contact or recommend for\nemployment with a Competing Company, contact or recommend for the purposes of entering into a contractual relationship with a Competing\nCompany, or solicit, call on, interfere with, or attempt to divert, or entice away, any individuals who are or were employees, independent\ncontractors, representatives or employees of the Company or of any of the Company’s distributors at any time within the preceding 12 months.\nNON-DISCLOSURE COVENANT\n2.1 Use of Confidential Information. Both during the Employment Agreement Term and after the termination of the Employment Agreement,\nEmployee agrees not to use any Confidential Information except as required to perform its obligations as an Employee of the Company, or\ndisclose to any individual, corporation, partnership or other entity any Confidential Information belonging to the Company, unless Employee is\nrequired to make such disclosure pursuant to\n3\njudicial process. Notwithstanding the foregoing, immediately upon receipt of subpoena or other judicial process requiring disclosure of\nConfidential Information belonging to Company, Employee shall deliver written notice and a complete copy of such process to the Company\nand before responding to such process, allow the Company to take such action as they may deem appropriate under the circumstances to\nprotect their interests in the Confidential Information requested for disclosure.\n2.2 Development of Intellectual Property. Employee may make, discover or develop inventions, ideas, trade secrets, financial materials, computer\nprograms, discoveries, developmental improvements, know-how, processes and devices related to or used in the conduct of Employee’s\nperformance of services for and on behalf of the Company (“Developments”). The Employee agrees to disclose fully and promptly to the\nCompany any said Developments. Furthermore, Employee agrees that the Company is the sole and exclusive owner of said Developments; the\nEmployee retains no ownership in said Developments; and said Developments become part of the Company’s Confidential Information for\npurposes of this NCND Agreement. Company and Employee agree that if the Developments or any portion thereof are copyrightable, it shall\nbe deemed “work for hire” as such term is defined in the U.S. Copyright Act. The Employee shall execute and deliver to the Company any and\nall licenses, applications, assignments and other documents and take any and all actions that the Company may deem necessary or desirable to\nprotect Company’s ownership rights in said Developments.\n2.3 Handling and Return of Confidential Information. Employee shall not physically or electronically remove or make copies of any Confidential\nInformation owned by the Company, except as required by the Employee to properly fulfill their responsibilities as an Employee of the\nCompany. Upon the termination of the Employment Agreement, Employee shall immediately return to the Company any and all Confidential\nInformation in their possession, including any and all copies of said Confidential Information.\n2.4 Fiduciary Duties. Employee agrees that Employee shall treat all Confidential Information entrusted to Employee by Company as a fiduciary,\nand Employee accepts and undertakes all the obligations of a fiduciary, including good faith, trust, confidence and candor, to maintain, protect\nand develop Confidential Information for the benefit of Company.\n2.5 Confidential Information of Others. Employee hereby represents and warrants to the Company that Employee is not bound by any agreement,\nunderstanding or restriction, (including, but not limited to any covenant restricting competition or agreement related to the confidential and\nproprietary information and trade secrets of any third party), that is inconsistent with or prevents or limits the Employee’s ability to fulfill\nhis/her obligations under the Employment Agreement. Furthermore, Employee hereby represents and warrants to the Company that the\nexecution and performance of the Employment Agreement will not result in or constitute a breach of any term or condition of any other\nagreement the Employee is bound by. In performance of his/her duties and obligations under the Employment Agreement, Employee agrees\nnot to disclose the confidential and proprietary information or trade secrets of any third party to the Company.\n4\nREMEDIES\n3.1 Right to Specific Relief. Company and Employee recognize and acknowledge that the limitations set forth in this NCND Agreement are\nproperly required for the adequate protection of the business of the Company, and that violation of any of the provisions of this NCND\nAgreement will cause irreparable injury for which money damages are neither adequate nor ascertainable. Accordingly, Company shall have\nthe right to have the provisions of this NCND Agreement specifically enforced by a court of competent jurisdiction, in addition to any other\nremedies which Company may have in equity or at law, and Employee hereby consents to the entry of an injunction or other similar relief\nwithout the necessity of posting a bond or other financial insurance. Furthermore, Company shall be entitled to recover its costs and expenses\n(including reasonable attorneys’ fees) incurred in enforcing its rights under this NCND Agreement.\nIf a dispute arises under this NCND Agreement, Employee shall have a duty to immediately notify the Company of the name, address and\ntelephone number of Employee’s legal counsel. In the event Employee fails to provide this information, Employee agrees that the Company\nmay seek a temporary restraining order to enforce the provisions of this NCND Agreement on an ex parte basis. Employee acknowledges that\nthe Company’s recovery of damages will not be an adequate means to redress a breach of this NCND Agreement. Nothing contained in this\nparagraph, however, shall prohibit the Company from pursuing any remedies in addition to injunctive relief, including recovery of damages.\n3.2 Right to Recover Attorneys’ Fees and Costs. (a) If the Company seeks a restraining order, an injunction or any other form of equitable relief,\nand recovers any such relief, Company shall be entitled to recover its reasonable attorneys’ fees, court costs, and other costs incurred obtaining\nthat relief (even if other relief sought is denied). (b) If the Company obtains a final judgment of a court of competent jurisdiction, pursuant to\nwhich Employee is determined to have breached his/her obligations under this Agreement, the Company shall be entitled to recover, in\naddition to any award of damages, its reasonable attorneys’ fees, costs, and expenses incurred by the Company in obtaining such judgment.\nAny relief awarded under this subparagraph (b) shall be in addition to any other relief awarded under subparagraph (a). The parties agree that\nthe provisions of this paragraph are reasonable and necessary.\nOTHER MATTERS\n4.1 Condition to Seeking Subsequent Employment. Employee agrees to show a copy of this NCND Agreement to any Competing Company with\nwhom Employee interviews during the Employment Agreement Term or with whom Employee interviews within the 12 month period\nimmediately following the termination of the Employment Agreement Term.\n4.2 Entire Agreement. This NCND Agreement constitutes the entire agreement between the parties relating to the specific matters covered by this\nNCND Agreement and supersedes all prior agreements, whether written or oral. No modifications or waiver of any part of this NCND\nAgreement shall be binding upon either party unless in writing.\n5\n4.3 Waiver. The waiver of a breach of any provision of this NCND Agreement by any party shall not operate or be construed as a waiver of any\nprovision of this NCND Agreement or consent of any subsequent breach.\n4.4 Severability. If any term or provision of this NCND Agreement shall be determined invalid or unenforceable to any extent or in any\napplication, then the remainder of this NCND Agreement shall not be affected thereby, and such term or provision shall be deemed modified to\nthe minimum extent necessary to make it consistent with applicable law, except to such extent or in such application, shall not be affected\nthereby, every term and provision of this NCND Agreement as so modified if necessary, shall be enforced to the fullest extent and in the\nbroadest application permitted by law.\n4.5 Governing Law. In order to maintain uniformity in the interpretation of this NCND Agreement the parties have expressly agreed that this\nNCND Agreement, the parties’ performance hereunder and the relationship between them shall be governed by, construed and enforced in\naccordance with the laws of the Commonwealth of Pennsylvania, without regard to the principles thereof regarding conflicts of laws.\n4.6 Transfer or Assignment; Binding Nature. Company may transfer or assign its rights and obligations pursuant to this NCND Agreement to its\nsuccessors or assigns. Employee shall not assign any of his or her rights or delegate any of his or her duties or obligations under this NCND\nAgreement. This NCND Agreement shall be binding upon and inure to the benefit of the parties hereto and to the Company’s successors and\nassigns.\n4.7 Tolling. Employee understands and agrees that in the event of any breach of his/her obligations under paragraphs 1.3 or 1.4 of this NCND\nAgreement, the No Competition Period shall be automatically tolled for the amount of time the violation continues.\nIN WITNESS WHEREOF, the undersigned have executed this NCND AGREEMENT, intending to be bound under their seals, effective as of\nthe day and year set forth above.\nCOMPANY:\nEMPLOYEE:\nBy:\nBy:\nDATE:\nDATE:\n6
e472889a99ad47b452af0b812684d2a5.pdf	effective_date jurisdiction party term	EX-10.20 3 doc3.txt NON-DISCLOSURE AGREEMENT Exhibit 10.20 Confidential NON-DISCLOSURE\nAGREEMENT The Regents of The University of Michigan, a constitutional corporation of The State of Michigan\n(hereinafter referred to as "MICHIGAN") and Genesis Bioventures, Inc., with offices located at 1A 3033 King George\nHwy, Surrey, BC, Canada V4P 1B8 (hereinafter referred to as "COMPANY") each possess, and consider to be\nproprietary and confidential, certain information, drawings, data, materials, software, documentation, business plans,\npotential licensing terms and know-how relating to MICHIGAN research concerning Mammastatin diagnostics, (all such\ninformation and materials are hereinafter referred to as "Confidential Information"). This agreement has an effective date\nof April 9, 2003. The relevant Confidential Information of MICHIGAN is identified in MICHIGAN's Office of\nTechnology Transfer as MICHIGAN File Nos. 1061. It is understood that COMPANY and MICHIGAN are both\ninterested in having COMPANY and MICHIGAN each receive access to such Confidential Information of the other for\nthe sole purposes of having COMPANY participate in commercial development of Confidential Information and\nnegotiating a license agreement regarding same. Hereinafter, COMPANY and MICHIGAN shall be referred to as "Party"\nor "Parties" as appropriate under the context. Designation of Information Under MCL 15.243 (d) and (f). The\ninformation provided by COMPANY to MICHIGAN under this Agreement is, in its entirety, commercial trade-secret\ninformation voluntarily provided to MICHIGAN for use in developing policy and is to be used by MICHIGAN\nexclusively for technology transfer activities related to research and evaluation. It is submitted to MICHIGAN based on\nMICHIGAN's promise of confidentiality, authorized by the Office of the President. Because such Confidential\nInformation is proprietary and confidential to the Parties, and to provide an appropriate basis by which such Confidential\nInformation can be made available to each Party from the other Party, the Parties agree to the following terms and\nprovisions. 1. This agreement applies only to Confidential Information received during the term of the May 13, 2003\nLicense Agreement between the Parties. 2. Except as provided in the License Agreement, neither Party shall be obligated\nby this Agreement to provide to the other Party any Confidential Information; and each Party may at its sole discretion\ndetermine which of its Confidential Information it will provide to the other Party. 3. All Confidential Information\nprovided in tangible form will be marked as such. 4. Each Party will treat as confidential all Confidential Information,\nwhich is or has been made available, directly or indirectly, to it by the other Party, and will treat it with the same degree\nof care that it would treat Confidential Information of its own, and in any event with no less than reasonable care. From\nthe date received, the receiving Party will not disclose Confidential Information of the other Party to others for a period\nof five (5) years. 5. Each Party will use Confidential Information received from the other Party only to the extent\nnecessary for the aforesaid purpose. 6. Each Party agrees to limit access to such Confidential Information received from\nthe other Party to those of its employees, agents, vendors and consultants reasonably requiring same for the aforesaid\npurpose and who are obligated to treat same in a manner and to an equivalent extent as provided herein with regard to\nconfidentiality, use, and non-disclosure. 7. Each party agrees to comply with all applicable laws, rules and regulations,\nincluding Export Administration Regulations and Export Control Regulations of the United States of America, relating\nto the export or re-export of technical data and products produced as a result of the use of such data, insofar as they relate\nto the information disclosed under this Agreement. 8. The secrecy and non-disclosure obligations of each Party under\nthis Agreement do not apply to Confidential Information received from the other Party which: (a) at the time of the\ndisclosure is generally available to the public or thereafter becomes generally available to the public through no act or\nomission of the receiving Party or its employees; or (b) the receiving Party can show by written records to have been in\nthe receiving Party's possession prior to the time of the disclosure and was not acquired, directly or indirectly, from the\nother Party; or (c) the receiving Party can show by written records to have been independently made available as a matter\nof right to the receiving Party by others, provided such others did not acquire the Confidential Information and Material\ndirectly or indirectly from the other Party; or (d) is required to be disclosed by law or court order. 9. If the disclosing\nParty at any time requests the receiving Party to do so, the receiving Party will return all materials, drawings, data,\nmemoranda, and written information in its possession relating to such Confidential Information of the disclosing Party,\nincluding copies thereof, to the other Party. 10. Nothing contained in this Agreement shall be construed to grant to the\nreceiving Party any rights in respect of such Confidential Information other than for the stated purpose. Nothing herein\nwill obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole\ndiscretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity. 11. Each\nParty agrees not to make any public use of or reference to the name or trademarks (or any name under which\nCOMPANY or MICHIGAN does business) of the other Party (or the name any employee or technology of any Party) for\nany purpose whatsoever (including marketing, public relations, advertising, display or other business purpose), without\nthe prior written consent of the other Party, which consent may be withheld or granted in the other Party's sole and\nabsolute discretion. 12. The Parties agree that any xerographically or electronically reproduced copy of this fully-\nexecuted agreement shall have the same legal force and effect as any copy bearing original signatures of the parties. 13.\nMICHIGAN and COMPANY agree that this Agreement sets forth their entire understanding concerning confidentiality\nobligations, and no modification of the Agreement will be effective unless both MICHIGAN and COMPANY agree to it\nin writing. 14. The parties hereby consent to the jurisdiction of the courts in the State of Michigan over any dispute\nconcerning this Agreement or the relationship between the parties. Should COMPANY bring any claim, demand or other\naction against MICHIGAN, its Regents, fellows, officers, employees or agents, arising out of this Agreement or the\nrelationship between the parties, COMPANY agrees to bring said action only in the Michigan Court of Claims. The\nforegoing is understood and agreed to: FOR THE REGENTS OF FOR COMPANY THE UNIVERSITY OF\nMICHIGAN By /s/ E. Greg McCartney By /s/ Kenneth J. Nisbet ------------------------ ------------------------ (authorized\nrepresentative) Kenneth J. Nisbet Executive Director, UM Technology Transfer Typed Name: E. Greg McCartney --------\n-- -- - -- - -- - Title: Chairman / CEO ---------------- Date: May 13, 2003 Date: May 14, 2003 -------------- --------------	EX-10.20 3 doc3.txt NON-DISCLOSURE AGREEMENT Exhibit 10.20 Confidential NON-DISCLOSURE\nAGREEMENT The Regents of The University of Michigan, a constitutional corporation of The State of Michigan\n(hereinafter referred to as "MICHIGAN") and Genesis Bioventures, Inc., with offices located at 1A 3033 King George\nHwy, Surrey, BC, Canada V4P 1B8 (hereinafter referred to as "COMPANY™") each possess, and consider to be\nproprietary and confidential, certain information, drawings, data, materials, software, documentation, business plans,\npotential licensing terms and know-how relating to MICHIGAN research concerning Mammastatin diagnostics, (all such\ninformation and materials are hereinafter referred to as "Confidential Information"). This agreement has an effective date\nof April 9, 2003. The relevant Confidential Information of MICHIGAN is identified in MICHIGAN's Office of\nTechnology Transfer as MICHIGAN File Nos. 1061. It is understood that COMPANY and MICHIGAN are both\ninterested in having COMPANY and MICHIGAN each receive access to such Confidential Information of the other for\nthe sole purposes of having COMPANY participate in commercial development of Confidential Information and\nnegotiating a license agreement regarding same. Hereinafter, COMPANY and MICHIGAN shall be referred to as "Party"\nor "Parties" as appropriate under the context. Designation of Information Under MCL 15.243 (d) and (f). The\ninformation provided by COMPANY to MICHIGAN under this Agreement is, in its entirety, commercial trade-secret\ninformation voluntarily provided to MICHIGAN for use in developing policy and is to be used by MICHIGAN\nexclusively for technology transfer activities related to research and evaluation. It is submitted to MICHIGAN based on\nMICHIGAN's promise of confidentiality, authorized by the Office of the President. Because such Confidential\nInformation is proprietary and confidential to the Parties, and to provide an appropriate basis by which such Confidential\nInformation can be made available to each Party from the other Party, the Parties agree to the following terms and\nprovisions. 1. This agreement applies only to Confidential Information received during the term of the May 13, 2003\nLicense Agreement between the Parties. 2. Except as provided in the License Agreement, neither Party shall be obligated\nby this Agreement to provide to the other Party any Confidential Information; and each Party may at its sole discretion\ndetermine which of its Confidential Information it will provide to the other Party. 3. All Confidential Information\nprovided in tangible form will be marked as such. 4. Each Party will treat as confidential all Confidential Information,\nwhich is or has been made available, directly or indirectly, to it by the other Party, and will treat it with the same degree\nof care that it would treat Confidential Information of its own, and in any event with no less than reasonable care. From\nthe date received, the receiving Party will not disclose Confidential Information of the other Party to others for a period\nof five (5) years. 5. Each Party will use Confidential Information received from the other Party only to the extent\nnecessary for the aforesaid purpose. 6. Each Party agrees to limit access to such Confidential Information received from\nthe other Party to those of its employees, agents, vendors and consultants reasonably requiring same for the aforesaid\npurpose and who are obligated to treat same in a manner and to an equivalent extent as provided herein with regard to\nconfidentiality, use, and non-disclosure. 7. Each party agrees to comply with all applicable laws, rules and regulations,\nincluding Export Administration Regulations and Export Control Regulations of the United States of America, relating\nto the export or re-export of technical data and products produced as a result of the use of such data, insofar as they relate\nto the information disclosed under this Agreement. 8. The secrecy and non-disclosure obligations of each Party under\nthis Agreement do not apply to Confidential Information received from the other Party which: (a) at the time of the\ndisclosure is generally available to the public or thereafter becomes generally available to the public through no act or\nomission of the receiving Party or its employees; or (b) the receiving Party can show by written records to have been in\nthe receiving Party's possession prior to the time of the disclosure and was not acquired, directly or indirectly, from the\nother Party; or (c) the receiving Party can show by written records to have been independently made available as a matter\nof right to the receiving Party by others, provided such others did not acquire the Confidential Information and Material\ndirectly or indirectly from the other Party; or (d) is required to be disclosed by law or court order. 9. If the disclosing\nParty at any time requests the receiving Party to do so, the receiving Party will return all materials, drawings, data,\nmemoranda, and written information in its possession relating to such Confidential Information of the disclosing Party,\nincluding copies thereof, to the other Party. 10. Nothing contained in this Agreement shall be construed to grant to the\nreceiving Party any rights in respect of such Confidential Information other than for the stated purpose. Nothing herein\nwill obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole\ndiscretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity. 11. Each\nParty agrees not to make any public use of or reference to the name or trademarks (or any name under which\nCOMPANY or MICHIGAN does business) of the other Party (or the name any employee or technology of any Party) for\nany purpose whatsoever (including marketing, public relations, advertising, display or other business purpose), without\nthe prior written consent of the other Party, which consent may be withheld or granted in the other Party's sole and\nabsolute discretion. 12. The Parties agree that any xerographically or electronically reproduced copy of this fully-\nexecuted agreement shall have the same legal force and effect as any copy bearing original signatures of the parties. 13.\nMICHIGAN and COMPANY agree that this Agreement sets forth their entire understanding concerning confidentiality\nobligations, and no modification of the Agreement will be effective unless both MICHIGAN and COMPANY agree to it\nin writing. 14. The parties hereby consent to the jurisdiction of the courts in the State of Michigan over any dispute\nconcerning this Agreement or the relationship between the parties. Should COMPANY bring any claim, demand or other\naction against MICHIGAN, its Regents, fellows, officers, employees or agents, arising out of this Agreement or the\nrelationship between the parties, COMPANY agrees to bring said action only in the Michigan Court of Claims. The\nforegoing is understood and agreed to: FOR THE REGENTS OF FOR COMPANY THE UNIVERSITY OF\nMICHIGAN By /s/ E. Greg McCartney By /s/ Kenneth J. Nisbet ----=--=--m--mmmmmmmmmmm oo (authorized\nrepresentative) Kenneth J. Nisbet Executive Director, UM Technology Transfer Typed Name: E. Greg McCartney --------\n----------- Title: Chairman / CEQ ---------------- Date: May 13, 2003 Date: May 14, 2003 ------------== ==--—---mmn-—-	EX-10.20 3 doc3.txt NON-DISCLOSURE AGREEMENT Exhibit 10.20 Confidential NON-DISCLOSURE\nAGREEMENT The Regents of The University of Michigan, a constitutional corporation of The State of Michigan\n(hereinafter referred to as "MICHIGAN") and Genesis Bioventures, Inc., with offices located at 1A 3033 King George\nHwy, Surrey, BC, Canada V4P 1B8 (hereinafter referred to as "COMPANY") each possess, and consider to be\nproprietary and confidential, certain information, drawings, data, materials, software, documentation, business plans,\npotential licensing terms and know-how relating to MICHIGAN research concerning Mammastatin diagnostics, (all such\ninformation and materials are hereinafter referred to as "Confidential Information"). This agreement has an effective date\nof April 9, 2003. The relevant Confidential Information of MICHIGAN is identified in MICHIGAN's Office of\nTechnology Transfer as MICHIGAN File Nos. 1061. It is understood that COMPANY and MICHIGAN are both\ninterested in having COMPANY and MICHIGAN each receive access to such Confidential Information of the other for\nthe sole purposes of having COMPANY participate in commercial development of Confidential Information and\nnegotiating a license agreement regarding same. Hereinafter, COMPANY and MICHIGAN shall be referred to as "Party"\nor "Parties" as appropriate under the context. Designation of Information Under MCL 15.243 (d) and (f). The\ninformation provided by COMPANY to MICHIGAN under this Agreement is, in its entirety, commercial trade-secret\ninformation voluntarily provided to MICHIGAN for use in developing policy and is to be used by MICHIGAN\nexclusively for technology transfer activities related to research and evaluation. It is submitted to MICHIGAN based\non\nMICHIGAN's promise of confidentiality, authorized by the Office of the President. Because such Confidential\nInformation is proprietary and confidential to the Parties, and to provide an appropriate basis by which such Confidential\nInformation can be made available to each Party from the other Party, the Parties agree to the following terms and\nprovisions. 1. This agreement applies only to Confidential Information received during the term of the May 13, 2003\nLicense Agreement between the Parties. 2. Except as provided in the License Agreement, neither Party shall be obligated\nby this Agreement to provide to the other Party any Confidential Information; and each Party may at its sole discretion\ndetermine which of its Confidential Information it will provide to the other Party. 3. All Confidential Information\nprovided in tangible form will be marked as such. 4. Each Party will treat as confidential all Confidential Information,\nwhich is or has been made available, directly or indirectly, to it by the other Party, and will treat it with the same degree\nof care that it would treat Confidential Information of its own, and in any event with no less than reasonable care. From\nthe date received, the receiving Party will not disclose Confidential Information of the other Party to others for a period\nof five (5) years. 5. Each Party will use Confidential Information received from the other Party only to the extent\nnecessary for the aforesaid purpose. 6. Each Party agrees to limit access to such Confidentia Information received from\nthe other Party to those of its employees, agents, vendors and consultants reasonably requiring same for the aforesaid\npurpose\nand\nwho\nare\nobligated\nto\ntreat\nsame\nin\na\nmanner\nand\nto\nan\nequivalent\nextent\nas\nprovided\nherein\nwith\nregard\nto\nconfidentiality, use, and non-disclosure. 7. Each party agrees to comply with all applicable laws, rules and regulations,\nincluding Export Administration Regulations and Export Control Regulations of the United States of America, relating\nto the export or re-export of technical data and products produced as a result of the use of such data, insofar as they relate\nto the information disclosed under this Agreement. 8. The secrecy and non-disclosure obligations of each Party under\nthis Agreement do not apply to Confidential Information received from the other Party which: (a) at the time of the\ndisclosure is generally available to the public or thereafter becomes generally available to the public through no act or\nomission of the receiving Party or its employees; or (b) the receiving Party can show by written records to have been in\nthe receiving Party's possession prior to the time of the disclosure and was not acquired, directly or indirectly, from the\nother Party; or (c) the receiving Party can show by written records to have been independently made available as a matter\nof right to the receiving Party by others, provided such others did not acquire the Confidential Information and Material\ndirectly or indirectly from the other Party; or (d) is required to be disclosed by law or court order. 9. If the disclosing\nParty at any time requests the receiving Party to do so, the receiving Party will return all materials, drawings, data,\nmemoranda, and written information in its possession relating to such Confidential Information of the disclosing Party,\nincluding copies thereof, to the other Party. 10. Nothing contained in this Agreement shall be construed to grant to the\nreceiving Party any rights in respect of such Confidential Information other than for the stated purpose. Nothing herein\nwill obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole\ndiscretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity. 11. Each\nParty agrees not to make any public use of or reference to the name or trademarks (or any name under which\nCOMPANY or MICHIGAN does business) of the other Party (or the name any employee or technology of any Party) for\nany purpose whatsoever (including marketing, public relations, advertising, display or other business purpose), without\nthe prior written consent of the other Party, which consent may be withheld or granted in the other Party's sole and\nabsolute discretion 12. The Parties agree that any xerographically or electronically reproduced copy of this fully-\nexecuted\nagreement shall have the same legal force and effect as any copy bearing original signatures of the parties\n13.\nMICHIGAN and COMPANY agree that this Agreement sets forth their entire understanding concerning confidentiality\nobligations, and no modification of the Agreement will be effective unless both MICHIGAN and COMPANY agree to it\nin writing. 14. The parties hereby consent to the jurisdiction of the courts in the State of Michigan over any dispute\nconcerning this Agreement or the relationship between the parties. Should COMPANY bring any claim, demand or other\naction against MICHIGAN, its Regents, fellows, officers, employees or agents, arising out of this Agreement or the\nrelationship between the parties, COMPANY agrees to bring said action only in the Michigan Court of Claims. The\nforegoing is understood and agreed to: FOR THE REGENTS OF FOR COMPANY THE UNIVERSITY OF\nMICHIGAN By /s/ E. Greg McCartney By /s/ Kenneth J. Nisbet\n(authorized\nrepresentative) Kenneth J. Nisbet Executive Director, UM Technology Transfer Typed Name: E. Greg McCartney\nTitle: Chairman / CEO\nDate: May 13, 2003 Date: May 14, 2003	EX-10.20 3 doc3.txt NON-DISCLOSURE AGREEMENT Exhibit 10.20 Confidential NON-DISCLOSURE\nAGREEMENT The Regents of The University of Michigan, a constitutional corporation of The State of Michigan\n(hereinafter referred to as "MICHIGAN") and Genesis Bioventures, Inc., with offices located at 1A 3033 King George\nHwy, Surrey, BC, Canada V4P 1B8 (hereinafter referred to as "COMPANY") each possess, and consider to be\nproprietary and confidential, certain information, drawings, data, materials, software, documentation, business plans,\npotential licensing terms and know-how relating to MICHIGAN research concerning Mammastatin diagnostics, (all such\ninformation and materials are hereinafter referred to as "Confidential Information"). This agreement has an effective date\nof April 9, 2003. The relevant Confidential Information of MICHIGAN is identified in MICHIGAN's Office of\nTechnology Transfer as MICHIGAN File Nos. 1061. It is understood that COMPANY and MICHIGAN are both\ninterested in having COMPANY and MICHIGAN each receive access to such Confidential Information of the other for\nthe sole purposes of having COMPANY participate in commercial development of Confidential Information and\nnegotiating a license agreement regarding same. Hereinafter, COMPANY and MICHIGAN shall be referred to as "Party"\nor "Parties" as appropriate under the context. Designation of Information Under MCL 15.243 (d) and (f). The\ninformation provided by COMPANY to MICHIGAN under this Agreement is, in its entirety, commercial trade-secret\ninformation voluntarily provided to MICHIGAN for use in developing policy and is to be used by MICHIGAN\nexclusively for technology transfer activities related to research and evaluation. It is submitted to MICHIGAN based on\nMICHIGAN's promise of confidentiality, authorized by the Office of the President. Because such Confidential\nInformation is proprietary and confidential to the Parties, and to provide an appropriate basis by which such Confidential\nInformation can be made available to each Party from the other Party, the Parties agree to the following terms and\nprovisions. 1. This agreement applies only to Confidential Information received during the term of the May 13, 2003\nLicense Agreement between the Parties. 2. Except as provided in the License Agreement, neither Party shall be obligated\nby this Agreement to provide to the other Party any Confidential Information; and each Party may at its sole discretion\ndetermine which of its Confidential Information it will provide to the other Party. 3. All Confidential Information\nprovided in tangible form will be marked as such. 4. Each Party will treat as confidential all Confidential Information,\nwhich is or has been made available, directly or indirectly, to it by the other Party, and will treat it with the same degree\nof care that it would treat Confidential Information of its own, and in any event with no less than reasonable care. From\nthe date received, the receiving Party will not disclose Confidential Information of the other Party to others for a period\nof five (5) years. 5. Each Party will use Confidential Information received from the other Party only to the extent\nnecessary for the aforesaid purpose. 6. Each Party agrees to limit access to such Confidential Information received from\nthe other Party to those of its employees, agents, vendors and consultants reasonably requiring same for the aforesaid\npurpose and who are obligated to treat same in a manner and to an equivalent extent as provided herein with regard to\nconfidentiality, use, and non-disclosure. 7. Each party agrees to comply with all applicable laws, rules and regulations,\nincluding Export Administration Regulations and Export Control Regulations of the United States of America, relating\nto the export or re-export of technical data and products produced as a result of the use of such data, insofar as they relate\nto the information disclosed under this Agreement. 8. The secrecy and non-disclosure obligations of each Party under\nthis Agreement do not apply to Confidential Information received from the other Party which: (a) at the time of the\ndisclosure is generally available to the public or thereafter becomes generally available to the public through no act or\nomission of the receiving Party or its employees; or (b) the receiving Party can show by written records to have been in\nthe receiving Party's possession prior to the time of the disclosure and was not acquired, directly or indirectly, from the\nother Party; or (c) the receiving Party can show by written records to have been independently made available as a matter\nof right to the receiving Party by others, provided such others did not acquire the Confidential Information and Material\ndirectly or indirectly from the other Party; or (d) is required to be disclosed by law or court order. 9. If the disclosing\nParty at any time requests the receiving Party to do so, the receiving Party will return all materials, drawings, data,\nmemoranda, and written information in its possession relating to such Confidential Information of the disclosing Party,\nincluding copies thereof, to the other Party. 10. Nothing contained in this Agreement shall be construed to grant to the\nreceiving Party any rights in respect of such Confidential Information other than for the stated purpose. Nothing herein\nwill obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole\ndiscretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity. 11. Each\nParty agrees not to make any public use of or reference to the name or trademarks (or any name under which\nCOMPANY or MICHIGAN does business) of the other Party (or the name any employee or technology of any Party) for\nany purpose whatsoever (including marketing, public relations, advertising, display or other business purpose), without\nthe prior written consent of the other Party, which consent may be withheld or granted in the other Party's sole and\nabsolute discretion. 12. The Parties agree that any xerographically or electronically reproduced copy of this fully-\nexecuted agreement shall have the same legal force and effect as any copy bearing original signatures of the parties. 13.\nMICHIGAN and COMPANY agree that this Agreement sets forth their entire understanding concerning confidentiality\nobligations, and no modification of the Agreement will be effective unless both MICHIGAN and COMPANY agree to it\nin writing. 14. The parties hereby consent to the jurisdiction of the courts in the State of Michigan over any dispute\nconcerning this Agreement or the relationship between the parties. Should COMPANY bring any claim, demand or other\naction against MICHIGAN, its Regents, fellows, officers, employees or agents, arising out of this Agreement or the\nrelationship between the parties, COMPANY agrees to bring said action only in the Michigan Court of Claims. The\nforegoing is understood and agreed to: FOR THE REGENTS OF FOR COMPANY THE UNIVERSITY OF\nMICHIGAN By /s/ E. Greg McCartney By /s/ Kenneth J. Nisbet ------------------------ ------------------------ (authorized\nrepresentative) Kenneth J. Nisbet Executive Director, UM Technology Transfer Typed Name: E. Greg McCartney --------\n-- -- - -- - -- - Title: Chairman / CEO ---------------- Date: May 13, 2003 Date: May 14, 2003 -------------- --------------
e549732a99aa5f913109db1afe6961fc.pdf	effective_date jurisdiction party term	EX-10.22 21 dex1022.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE - CRAIG EUDY\nExhibit 10.22\nNON-COMPETITION/NON -SOLICITATION/NON -DISCLOSURE AGREEMENT\nIn consideration of his employment by INFRASTRUX GROUP, INC. (hereinafter “Company”), this Employee Agreement (hereinafter\n“Agreement”) is made this 23rd day of June, 2009, by and between Craig Eudy (hereinafter “Employee”) and the Company, a term which includes\nthe Company’s successors and assigns. By the mutual promises and covenants made herein, the undersigned parties agree as follows:\n1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer; (c) will\nobtain valuable, continuing training; (d) will be introduced to the Company customers; (e) will be provided with support and be\npermitted to utilize the Company’s goodwill and reputation; (f) will obtain and have access to the Company’s confidential, proprietary,\ncustomer, or trade secret information, including, but not limited to, its patented silicone fluid injection process; and (g) will have the use\nand enjoyment of the Company’s materials, equipment, facilities and overall research and business endeavors.\n2. No Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee’s best skill and effort for the term\nof Employee’s employment with the Company. Employee agrees that for the term of Employee’s employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company. In connection with this provision,\nEmployee agrees not to sell outside products or services to the Company employees or customers during the term of Employee’s\nemployment with the Company.\n3. Non-Competition Covenant. Employee will not, during the term of Employee’s employment with the Company and for a period of two\n(2) years thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, supervisory, or consulting nature, whether with or without remuneration, to any business or activity\ninvolved in the gas, electric, utilities, and/or telecommunications industry, which is in competition with any business, research or\nendeavor of the Company. The scope of competitive activities prohibited by this Agreement shall be limited to those activities of the type\nconducted, authorized, offered, or provided by Employee to the Company customers during the course of Employee’s employment with\nthe Company and involving products, technology, or services similar to those handled, created, sold, or distributed by the Company\nduring Employee’s employment.\n4. Inventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries conceived\nby Employee or developed, in whole or in part, by Employee during the term of Employee’s employment with the Company, related in\nany manner to the Company’s business, whether or not conceived or developed during working hours or on the property of the Company.\nSuch ideas, inventions and discoveries will be the property of the Company, and the Company will have the right to any patents,\ntrademarks, or copyrights that may be issued with respect thereto. Employee hereby agrees to assign to the Company, or its nominee, all\nright, title and interest in such ideas, inventions, discoveries, patent, trademark and copyright applications, patents, trademarks and\ncopyrights and assignments thereof, and will do such things as the Company may require to establish and protect its ownership and to\neffectuate the foregoing, either during Employee’s employment or thereafter. Excluded from the operation of this provision are those\nideas, inventions, and discoveries, patented and unpatented, of Employee’s that were made prior to Employee’s employment by the\nCompany and that have been described in writing by Employee and acknowledged in writing by the President of the Company.\n5. Residuals. The terms of confidentiality under this Agreement shall not be construed to limit Employee’s right to independently develop\nor acquire products without use of the Company’s Confidential Information. However, Employee shall not be free to use for any purpose\nthe residuals resulting from access to or work with the Confidential Information of the Company. The term “residuals” means\ninformation in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including\nideas, concepts, know-how or techniques contained therein.\n6. Confidentiality. During Employee’s employment with the Company and after Employee separates employment from the Company,\nEmployee will treat as confidential and proprietary to the Company any data, information, or tangible materials received or acquired by\nEmployee in the course of performance of Employee’s employment relating to the business affairs, customers, finances, equipment,\nproducts, methods, processes, design and engineering data, know-how, or technology of the Company. Employee specifically\nunderstands and agrees that the identities of and information relating to the customers of the Company are confidential and proprietary\nand constitute trade secrets to the Company and must be treated as such both during and after the term of Employee’s employment.\nEmployee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated to protect\nconfidential information for the benefit of any customer, client, or other third party.\nConfidential information means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company (other than by fault of Employee), and includes, but is not limited to: the\nCompany’s pricing and marketing strategies and characteristics, profit margins, methods of operations and sales, sources of supplies, and\ncustomer information such as names, contact persons, customer needs and requirements, contract renewal dates for existing or\nprospective customers; and any other information relating to the Company’s business that is treated by the Company as confidential.\n7. Nonsolicitation of Customers Agreement. Employee agrees that: For a period of three (3) years following the termination of\nEmployee’s employment, Employee shall not directly, or indirectly by assisting others, solicit or attempt to solicit any business from any\nof the Company’s customers for whom Employee provided products or arranged services during employment with the Company, for\npurposes of providing products or services that are competitive with those provided by the Company.\n8. Nonsolicitation of Employees. Employee agrees that for a period of three (3) years following the termination of Employee’s\nemployment, Employee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other\nemployee or former employee of the Company with whom Employee became familiar as a result of Employee’s employment with the\nCompany.\n9. Return of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials made or compiled by Employee at any time or in Employee’s possession during the course of Employee’s\nemployment, including any and all copies thereof. Employee agrees that all such property is the property of the Company, held by\nEmployee in trust solely for the benefit of the Company, and will be delivered to the Company upon termination of Employee’s\nemployment or at any other time upon request by the Company. It is specifically agreed that any documents, card files, notebooks,\nrolodexes, or computer printouts containing confidential customer information are the property of the Company regardless of who\nprepared or assembled the information.\n10. Enforcement.\nA. Reasonableness of Restrictions: Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not impair\nEmployee’s ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief: Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement.\nC. Extension of Covenants: During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\n2\nD. Attorneys’ Fees: Employee agrees to pay the Company any attorney’s fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nE. Choice of Law: This Agreement will be governed by the laws of the State of Washington.\n11. Judicial Modification: The parties have attempted to limit Employee’s rights to compete only to the extent necessary to protect the\nCompany from unfair competition. The parties recognize, however, that reasonable people may differ in making such a determination.\nConsequently, the parties hereby agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent and in such a manner as determined to be reasonable in\nany such legal proceeding.\n12. Construction of Agreement. It is agreed by the parties that the obligations between the parties, and the existence of any other claim or\ndefense shall not affect the enforceability of this Agreement or the remedies thereunder. It is agreed by the parties that this Agreement\nshall be automatically assigned to any successor of the Company, unless specifically provided otherwise in a writing executed by the\nPresident of the Company. This Agreement contains the entire understanding between the parties only as to the subjects set forth herein,\nand may not be modified, except in writing signed by all parties to this Agreement.\n13. Certificate of Understanding. Employee further certifies that Employee received a copy of this Agreement for review and study before\nbeing asked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor\nof Employee’s choice; had sufficient opportunity before the Agreement was signed to ask questions about the provisions of the\nAgreement and received satisfactory answers; and understands Employee’s rights and obligations under the Agreement; Employee signs\nthis Agreement freely and voluntarily, and without any coercion from any person.\nEmployee\nCompany\nSignature:\n/s/ Craig Eudy\nSignature:\n/s/ Lanny H. Michael\nPrint Name: Craig Eudy\nPrint Name: Lanny H. Michael\nDate:\n6/23/09\nTitle:\nChief Financial Officer\nDate:\n6/23/09\n3	EX-10.22 21 dex1022.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE - CRAIG EUDY Exhibit 10.22\nNON-COMPETITION/NON-SOLICITATION/NON-DISCIL.OSURE AGREEMENT\nIn consideration of his employment by INFRASTRUX GROUP, INC. (hereinafter “Company”), this Employee Agreement (hereinafter “Agreement”) is made this 23rd day of June, 2009, by and between Craig Eudy (hereinafter “Employee”) and the Company, a term which includes the Company’s successors and assigns. By the mutual promises and covenants made herein, the undersigned parties agree as follows: 1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer; (c) will\nobtain valuable, continuing training; (d) will be introduced to the Company customers; (e) will be provided with support and be\npermitted to utilize the Company’s goodwill and reputation; (f) will obtain and have access to the Company’s confidential, proprietary,\ncustomer, or trade secret information, including, but not limited to, its patented silicone fluid injection process; and (g) will have the use\nand enjoyment of the Company’s materials, equipment, facilities and overall research and business endeavors.\nNo Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee’s best skill and effort for the term\nof Employee’s employment with the Company. Employee agrees that for the term of Employee’s employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company. In connection with this provision,\nEmployee agrees not to sell outside products or services to the Company employees or customers during the term of Employee’s\nemployment with the Company.\nNon-Competition Covenant. Employee will not, during the term of Employee’s employment with the Company and for a period of two\n(2) years thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, supervisory, or consulting nature, whether with or without remuneration, to any business or activity\ninvolved in the gas, electric, utilities, and/or telecommunications industry, which is in competition with any business, research or\nendeavor of the Company. The scope of competitive activities prohibited by this Agreement shall be limited to those activities of the type\nconducted, authorized, offered, or provided by Employee to the Company customers during the course of Employee’s employment with\nthe Company and involving products, technology, or services similar to those handled, created, sold, or distributed by the Company\nduring Employee’s employment.\nInventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries conceived\nby Employee or developed, in whole or in part, by Employee during the term of Employee’s employment with the Company, related in\nany manner to the Company’s business, whether or not conceived or developed during working hours or on the property of the Company.\nSuch ideas, inventions and discoveries will be the property of the Company, and the Company will have the right to any patents,\ntrademarks, or copyrights that may be issued with respect thereto. Employee hereby agrees to assign to the Company, or its nominee, all\nright, title and interest in such ideas, inventions, discoveries, patent, trademark and copyright applications, patents, trademarks and\ncopyrights and assignments thereof, and will do such things as the Company may require to establish and protect its ownership and to\neffectuate the foregoing, either during Employee’s employment or thereafter. Excluded from the operation of this provision are those\nideas, inventions, and discoveries, patented and unpatented, of Employee’s that were made prior to Employee’s employment by the\nCompany and that have been described in writing by Employee and acknowledged in writing by the President of the Company.\nResiduals. The terms of confidentiality under this Agreement shall not be construed to limit Employee’s right to independently develop\nor acquire products without use of the Company’s Confidential Information. However, Employee shall not be free to use for any purpose\nthe residuals resulting from access to or work with the Confidential Information of the Company. The term “residuals” means\ninformation in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including\nideas, concepts, know-how or techniques contained therein.\n10. Confidentiality. During Employee’s employment with the Company and after Employee separates employment from the Company,\nEmployee will treat as confidential and proprietary to the Company any data, information, or tangible materials received or acquired by\nEmployee in the course of performance of Employee’s employment relating to the business affairs, customers, finances, equipment,\nproducts, methods, processes, design and engineering data, know-how, or technology of the Company. Employee specifically\nunderstands and agrees that the identities of and information relating to the customers of the Company are confidential and proprietary\nand constitute trade secrets to the Company and must be treated as such both during and after the term of Employee’s employment.\nEmployee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated to protect\nconfidential information for the benefit of any customer, client, or other third party.\nConfidential information means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company (other than by fault of Employee), and includes, but is not limited to: the\nCompany’s pricing and marketing strategies and characteristics, profit margins, methods of operations and sales, sources of supplies, and\ncustomer information such as names, contact persons, customer needs and requirements, contract renewal dates for existing or\nprospective customers; and any other information relating to the Company’s business that is treated by the Company as confidential.\nNonsolicitation of Customers Agreement. Employee agrees that: For a period of three (3) years following the termination of\nEmployee’s employment, Employee shall not directly, or indirectly by assisting others, solicit or attempt to solicit any business from any\nof the Company’s customers for whom Employee provided products or arranged services during employment with the Company, for\npurposes of providing products or services that are competitive with those provided by the Company.\nNonsolicitation of Employees. Employee agrees that for a period of three (3) years following the termination of Employee’s\nemployment, Employee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other\nemployee or former employee of the Company with whom Employee became familiar as a result of Employee’s employment with the\nCompany.\nReturn of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials made or compiled by Employee at any time or in Employee’s possession during the course of Employee’s\nemployment, including any and all copies thereof. Employee agrees that all such property is the property of the Company, held by\nEmployee in trust solely for the benefit of the Company, and will be delivered to the Company upon termination of Employee’s\nemployment or at any other time upon request by the Company. It is specifically agreed that any documents, card files, notebooks,\nrolodexes, or computer printouts containing confidential customer information are the property of the Company regardless of who\nprepared or assembled the information.\nEnforcement.\nA. Reasonableness of Restrictions: Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not impair Employee’s ability to earn a livelihood. B. Irreparable Harm; Injunctive Relief: Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby agrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other equitable relief to prevent or curtail any threatened or actual breach of this Agreement. C. Extension of Covenants: During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues. 2\nD. Attorneys’ Fees: Employee agrees to pay the Company any attorney’s fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal. 11.\n12.\n13.\nEmployee\nSignature:\nE. Choice of Law: This Agreement will be governed by the laws of the State of Washington.\nJudicial Modification: The parties have attempted to limit Employee’s rights to compete only to the extent necessary to protect the\nCompany from unfair competition. The parties recognize, however, that reasonable people may differ in making such a determination.\nConsequently, the parties hereby agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent and in such a manner as determined to be reasonable in\nany such legal proceeding.\nConstruction of Agreement. It is agreed by the parties that the obligations between the parties, and the existence of any other claim or\ndefense shall not affect the enforceability of this Agreement or the remedies thereunder. It is agreed by the parties that this Agreement\nshall be automatically assigned to any successor of the Company, unless specifically provided otherwise in a writing executed by the\nPresident of the Company. This Agreement contains the entire understanding between the parties only as to the subjects set forth herein,\nand may not be modified, except in writing signed by all parties to this Agreement.\nCertificate of Understanding. Employee further certifies that Employee received a copy of this Agreement for review and study before\nbeing asked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor\nof Employee’s choice; had sufficient opportunity before the Agreement was signed to ask questions about the provisions of the\nAgreement and received satisfactory answers; and understands Employee’s rights and obligations under the Agreement; Employee signs\nthis Agreement freely and voluntarily, and without any coercion from any person.\nCompany\n/s/ Craig Eudy Signature: /s/ Lanny H. Michael\nPrint Name: Craig Eudy Print Name: Lanny H. Michael Date:\n6/23/09 Title: Chief Financial Officer\nDate: 6/23/09	EX-10.22 21 x1022.htm NON-COMPETITIONNON-SOLICITATIONNON-DISCLOSUR CRAIG EUDY\nExhibit 10.22\nNON.COMPETITIONNON SOLICITATIONNON-DISCLOSUREA AGREEMENT\nIn consideration of his employment by INFRASTRUX GROUP, INC. (hereinafter "Company"), this Employee Agreement (hereinafter\n"Agreement") is made this 23rd day of June, 2009, by and between Craig Eudy (hereinafter "Employee") and the Company, a term which includes\nthe Company's successors and assigns. By the mutual promises and covenants made herein, the undersigned parties agree as follows:\n1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer; (c) will\nobtain valuable, continuing training; (d) will be introduced to the Company customers; (e) will be provided with support and be\npermitted to utilize the Company's goodwill and reputation; (f) will obtain and have access to the Company's confidential, proprietary,\ncustomer, or trade secret information, including, but not limited to, its patented silicone fluid injection process; and (g) will have the use\nand enjoyment of the Company's materials, equipment, facilities and overall research and business endeavors.\n2.\nNo Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee's best skill and effort for the term\nof Employee's employment with the Company. Employee agrees that for the term of Employee's employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company. In connection with this provision,\nEmployee agrees not to sell outside products or services to the Company employees or customers during the term of Employee's\nemployment with the Company.\n3.\nNon-Competition Covenant. Employee will not, during the term of Employee's employment with the Company and for a period of two\n(2) years thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, supervisory, or consulting nature, whether with or without remuneration, to any business or activity\ninvolved in the gas, electric, utilities, and/or telecommunications industry, which is in competition with any business, research or\nendeavor of the Company. The scope of competitive activities prohibited by this Agreement shall be limited to those activities of the type\nconducted, authorized, offered, or provided by Employee to the Company customers during the course of Employee's employment with\nthe Company and involving products, technology, or services similar to those handled, created, sold, or distributed by the Company\nduring Employee's employment.\n4.\nInventions\nand\nDiscoveries.\nEmployee\nwill\npromptly\ndisclose\nin\nwriting\nto\nthe\nCompany\nall\nideas,\ninventions\nor\ndiscoveries\nconceived\nby Employee or developed, in whole or in part, by Employee during the term of Employee's employment with the Company, related in\nany manner to the Company's business, whether or not conceived or developed during working hours or on the property of the Company.\nSuch ideas, inventions and discoveries will be the property of the Company, and the Company will have the right to any patents,\ntrademarks, or copyrights that may be issued with respect thereto. Employee hereby agrees to assign to the Company, or its nominee, all\nright, title and interest in such ideas, inventions, discoveries, patent, trademark and copyright applications, patents, trademarks and\ncopyrights and assignments thereof, and will do such things as the Company may require to establish and protect its ownership and to\neffectuate the foregoing, either during Employee's employment or thereafter. Excluded from the operation of this provision are those\nideas, inventions, and discoveries, patented and unpatented, of Employee's that were made prior to Employee's employment by the\nCompany and that have been described in writing by Employee and acknowledged in writing by the President of the Company.\n5.\nResiduals. The terms of confidentiality under this Agreement shall not be construed to limit Employee's right to independently develop\nor acquire products without use of the Company's Confidential Information. However, Employee shall not be free to use for any purpose\nthe residuals resulting from access to or work with the Confidential Information of the Company. The term "residuals" means\ninformation in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including\nideas, concepts, know-how or techniques contained therein.\n6.\nConfidentiality. During Employee's employment with the Company and after Employee separates employment from the Company,\nEmployee will treat as confidential and proprietary to the Company any data, information, or tangible materials received or acquired by\nEmployee in the course of performance of Employee's employment relating to the business affairs, customers, finances, equipment,\nproducts, methods, processes, design and engineering data, know-how, or technology of the Company. Employee specifically\nunderstands and agrees that the identities of and information relating to the customers of the Company are confidential and proprietary\nand constitute trade secrets to the Company and must be treated as such both during and after the term of Employee's employment.\nEmployee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated to protect\nconfidential information for the benefit of any customer, client, or other third party.\nConfidential information means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company (other than by fault of Employee), and includes, but is not limited to: the\nCompany's pricing and marketing strategies and characteristics, profit margins, methods of operations and sales, sources of supplies, and\ncustomer information such as names, contact persons, customer needs and requirements, contract renewal dates for existing or\nprospective customers; and any other information relating to the Company's business that is treated by the Company as confidential.\n7.\nNonsolicitation of Customers Agreement. Employee agrees that: For a period of three (3) years following the termination of\nEmployee's employment, Employee shall not directly, or indirectly by assisting others, solicit or attempt to solicit any business from any\nof the Company's customers for whom Employee provided products or arranged services during employment with the Company, for\npurposes of providing products or services that are competitive with those provided by the Company.\n8.\nNonsolicitation of Employees. Employee agrees that for a period of three (3) years following the termination of Employee's\nemployment, Employee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other\nemployee or former employee of the Company with whom Employee became familiar as a result of Employee's employment with the\nCompany.\n9.\nReturn of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda drawings or other documents,\nproperty, or tangible materials made or compiled by Employee at any time or in Employee's possession during the course of Employee's\nemployment, including any and all copies thereof. Employee agrees that all such property is the property of the Company, held by\nEmployee in trust solely for the benefit of the Company, and will be delivered to the Company upon termination of Employee's\nemployment or at any other time upon request by the Company. It is specifically agreed that any documents, card files, notebooks,\nrolodexes, or computer printouts containing confidential customer information are the property of the Company regardless of who\nprepared or assembled the information.\n10. Enforcement.\nA. Reasonableness of Restrictions: Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not impair\nEmployee's ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief: Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement\nC. Extension of Covenants: During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\n2\nD. Attorneys' Fees: Employee agrees to pay the Company any attorney's fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nE. Choice of Law: This Agreement will be governed by the laws of the State of Washington.\n11. Judicial Modification: The parties have attempted to limit Employee's rights to compete only to the extent necessary to protect the\nCompany from unfair competition. The parties recognize, however, that reasonable people may differ in making such a determination.\nConsequently, the parties hereby agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent and in such a manner as determined to be reasonable in\nany such legal proceeding.\n12.\nConstruction of Agreement. It is agreed by the parties that the obligations between the parties, and the existence of any other claim or\ndefense shall not affect the enforceability of this Agreement or the remedies thereunder. It is agreed by the parties that this Agreement\nshall be automatically assigned to any successor of the Company, unless specifically provided otherwise in a writing executed by the\nPresident of the Company. This Agreement contains the entire understanding between the parties only as to the subjects set forth herein,\nand may not be modified, except in writing signed by all parties to this Agreement.\n13. Certificate of Understanding. Employee further certifies that Employee received a copy of this Agreement for review and study before\nbeing asked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor\nof Employee's choice; had sufficient opportunity before the Agreement was signed to ask questions about the provisions of the\nAgreement and received satisfactory answers; and understands Employee's rights and obligations under the Agreement; Employee signs\nthis Agreement freely and voluntarily, and without any coercion from any person.\nEmployee\nCompany\nSignature:\n/s/ Craig Eudy\nSignature:\n/s/ Lanny H. Michael\nPrint Name:\nCraig Eudy\nPrint Name:\nLanny H. Michael\nDate:\n6/23/09\nTitle:\nChief Financial Officer\nDate:\n6/23/09\n3	EX-10.22 21 dex1022.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE - CRAIG EUDY\nExhibit 10.22\nNON-COMPETITION/NON -SOLICITATION/NON -DISCLOSURE AGREEMENT\nIn consideration of his employment by INFRASTRUX GROUP, INC. (hereinafter “Company”), this Employee Agreement (hereinafter\n“Agreement”) is made this 23rd day of June, 2009, by and between Craig Eudy (hereinafter “Employee”) and the Company, a term which includes\nthe Company’s successors and assigns. By the mutual promises and covenants made herein, the undersigned parties agree as follows:\n1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer; (c) will\nobtain valuable, continuing training; (d) will be introduced to the Company customers; (e) will be provided with support and be\npermitted to utilize the Company’s goodwill and reputation; (f) will obtain and have access to the Company’s confidential, proprietary,\ncustomer, or trade secret information, including, but not limited to, its patented silicone fluid injection process; and (g) will have the use\nand enjoyment of the Company’s materials, equipment, facilities and overall research and business endeavors.\n2. No Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee’s best skill and effort for the term\nof Employee’s employment with the Company. Employee agrees that for the term of Employee’s employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company. In connection with this provision,\nEmployee agrees not to sell outside products or services to the Company employees or customers during the term of Employee’s\nemployment with the Company.\n3. Non-Competition Covenant. Employee will not, during the term of Employee’s employment with the Company and for a period of two\n(2) years thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, supervisory, or consulting nature, whether with or without remuneration, to any business or activity\ninvolved in the gas, electric, utilities, and/or telecommunications industry, which is in competition with any business, research or\nendeavor of the Company. The scope of competitive activities prohibited by this Agreement shall be limited to those activities of the type\nconducted, authorized, offered, or provided by Employee to the Company customers during the course of Employee’s employment with\nthe Company and involving products, technology, or services similar to those handled, created, sold, or distributed by the Company\nduring Employee’s employment.\n4. Inventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries conceived\nby Employee or developed, in whole or in part, by Employee during the term of Employee’s employment with the Company, related in\nany manner to the Company’s business, whether or not conceived or developed during working hours or on the property of the Company.\nSuch ideas, inventions and discoveries will be the property of the Company, and the Company will have the right to any patents,\ntrademarks, or copyrights that may be issued with respect thereto. Employee hereby agrees to assign to the Company, or its nominee, all\nright, title and interest in such ideas, inventions, discoveries, patent, trademark and copyright applications, patents, trademarks and\ncopyrights and assignments thereof, and will do such things as the Company may require to establish and protect its ownership and to\neffectuate the foregoing, either during Employee’s employment or thereafter. Excluded from the operation of this provision are those\nideas, inventions, and discoveries, patented and unpatented, of Employee’s that were made prior to Employee’s employment by the\nCompany and that have been described in writing by Employee and acknowledged in writing by the President of the Company.\n5. Residuals. The terms of confidentiality under this Agreement shall not be construed to limit Employee’s right to independently develop\nor acquire products without use of the Company’s Confidential Information. However, Employee shall not be free to use for any purpose\nthe residuals resulting from access to or work with the Confidential Information of the Company. The term “residuals” means\ninformation in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including\nideas, concepts, know-how or techniques contained therein.\n6. Confidentiality. During Employee’s employment with the Company and after Employee separates employment from the Company,\nEmployee will treat as confidential and proprietary to the Company any data, information, or tangible materials received or acquired by\nEmployee in the course of performance of Employee’s employment relating to the business affairs, customers, finances, equipment,\nproducts, methods, processes, design and engineering data, know-how, or technology of the Company. Employee specifically\nunderstands and agrees that the identities of and information relating to the customers of the Company are confidential and proprietary\nand constitute trade secrets to the Company and must be treated as such both during and after the term of Employee’s employment.\nEmployee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated to protect\nconfidential information for the benefit of any customer, client, or other third party.\nConfidential information means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company (other than by fault of Employee), and includes, but is not limited to: the\nCompany’s pricing and marketing strategies and characteristics, profit margins, methods of operations and sales, sources of supplies, and\ncustomer information such as names, contact persons, customer needs and requirements, contract renewal dates for existing or\nprospective customers; and any other information relating to the Company’s business that is treated by the Company as confidential.\n7. Nonsolicitation of Customers Agreement. Employee agrees that: For a period of three (3) years following the termination of\nEmployee’s employment, Employee shall not directly, or indirectly by assisting others, solicit or attempt to solicit any business from any\nof the Company’s customers for whom Employee provided products or arranged services during employment with the Company, for\npurposes of providing products or services that are competitive with those provided by the Company.\n8. Nonsolicitation of Employees. Employee agrees that for a period of three (3) years following the termination of Employee’s\nemployment, Employee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other\nemployee or former employee of the Company with whom Employee became familiar as a result of Employee’s employment with the\nCompany.\n9. Return of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials made or compiled by Employee at any time or in Employee’s possession during the course of Employee’s\nemployment, including any and all copies thereof. Employee agrees that all such property is the property of the Company, held by\nEmployee in trust solely for the benefit of the Company, and will be delivered to the Company upon termination of Employee’s\nemployment or at any other time upon request by the Company. It is specifically agreed that any documents, card files, notebooks,\nrolodexes, or computer printouts containing confidential customer information are the property of the Company regardless of who\nprepared or assembled the information.\n10. Enforcement.\nA. Reasonableness of Restrictions: Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not impair\nEmployee’s ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief: Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement.\nC. Extension of Covenants: During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\n2\nD. Attorneys’ Fees: Employee agrees to pay the Company any attorney’s fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nE. Choice of Law: This Agreement will be governed by the laws of the State of Washington.\n11. Judicial Modification: The parties have attempted to limit Employee’s rights to compete only to the extent necessary to protect the\nCompany from unfair competition. The parties recognize, however, that reasonable people may differ in making such a determination.\nConsequently, the parties hereby agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent and in such a manner as determined to be reasonable in\nany such legal proceeding.\n12. Construction of Agreement. It is agreed by the parties that the obligations between the parties, and the existence of any other claim or\ndefense shall not affect the enforceability of this Agreement or the remedies thereunder. It is agreed by the parties that this Agreement\nshall be automatically assigned to any successor of the Company, unless specifically provided otherwise in a writing executed by the\nPresident of the Company. This Agreement contains the entire understanding between the parties only as to the subjects set forth herein,\nand may not be modified, except in writing signed by all parties to this Agreement.\n13. Certificate of Understanding. Employee further certifies that Employee received a copy of this Agreement for review and study before\nbeing asked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor\nof Employee’s choice; had sufficient opportunity before the Agreement was signed to ask questions about the provisions of the\nAgreement and received satisfactory answers; and understands Employee’s rights and obligations under the Agreement; Employee signs\nthis Agreement freely and voluntarily, and without any coercion from any person.\nEmployee\nCompany\nSignature:\n/s/ Craig Eudy\nSignature:\n/s/ Lanny H. Michael\nPrint Name: Craig Eudy\nPrint Name: Lanny H. Michael\nDate:\n6/23/09\nTitle:\nChief Financial Officer\nDate:\n6/23/09\n3
e62a15f048e24dbd9f9e6f0febc2bcfc.pdf	effective_date jurisdiction party term	EX-10.2 3 dex102.htm MASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nExhibit 10.2\nMASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nThis Master Confidentiality and Joint Development Agreement (“Agreement”) is by and between Momentive Specialty Chemicals Inc., with a\nprincipal place of business at 180 East Broad Street, Columbus, Ohio 43215 (“MSC”), and Momentive Performance Materials Inc., with a principal\nplace of business at 22 Corporate Woods Boulevard, Albany, NY 12211 (“MPM”). The effective date of this Agreement is October 1, 2010\n(“Effective Date”).\nRECITALS\nWHEREAS, MSC makes and sells epoxy, phenolic and coating products and materials, as well as forest products, and has developed, and\ncontinues to develop, proprietary technology and intellectual property relating to such products and materials, the manufacture of such products and\nmaterials and the use of such products and materials in a wide variety of end-use applications;\nWHEREAS, MPM makes and sells silicones, quartz and ceramics products and materials, and has developed, and continues to develop,\nproprietary technology and intellectual property relating to such products and materials, the manufacture of such products and materials and the use\nof such products and materials in a wide variety of end-use applications;\nWHEREAS, MSC and MPM are Affiliates, although separate legal entities, and are both commonly indirectly owned by Momentive\nPerformance Materials Holdings LLC;\nWHEREAS, MSC and MPM mutually desire to cooperate with each other from time to time in the exchange of confidential information and\nproprietary technology and/or in the joint development of certain technology and/or products as the Parties mutually deem appropriate throughout\nthe life of this Agreement; and\nWHEREAS, in the event that new technology, products, materials and the like, including any resulting intellectual property related thereto, are\ndeveloped under this Agreement, MSC and MPM desire to set forth their respective rights regarding the ownership and use of such technology,\nproducts, materials and associated intellectual property.\nNOW, THEREFORE, in consideration of the material covenants and promises set forth herein the receipt and sufficiency of which is hereby\nagreed and acknowledged, the Parties agree as follows:\n1. Definitions.\n1.1 “Affiliate” means any entity that directly or indirectly owns, is owned by, or is under the common ownership with a Party, at any time\nduring the term of this Agreement. “Owns”, “owned” or “ownership” means direct or indirect possession of more than fifty percent (50%) of\nthe votes of holders of a corporation’s voting securities, or a comparable equity or other ownership interest in any other type of entity; provided\nthat for the purposes of this Agreement, MPM and its Affiliates shall not constitute Affiliates of MSC or its Affiliates, and vice-versa.\nConfidential\n1\n1.2 “Change of Control” means the occurrence of any of the following events: (a) any sale, lease, exchange or other transfer (in one\ntransaction or a series of related transactions) of all or substantially all of the assets of either of MSC or MPM to any entity or group, together\nwith any Affiliates thereof; (b) consummation of a sale of capital stock, merger, consolidation, reorganization or other transaction (or series of\nrelated transactions) involving either of MSC or MPM following which the direct or indirect beneficial owners of the applicable Party (or any\nof them) as of the date hereof do not hold, collectively, capital stock or other securities of the surviving corporation (i) with voting power to\nelect a majority of the surviving entity’s board of directors or equivalent, or (ii) representing a beneficial interest in the surviving entity equal\nto at least a majority thereof or (c) any other transaction the result of which is that MPM shall no longer constitute an Affiliate of MSC. For\npurposes of this definition, no effect shall be given to the proviso to the definition of “Affiliate” set forth in Section 1.1.\n1.3 “Confidential Information” means any technical or commercial information or data, trade secrets, know-how, etc., of either Party or\ntheir respective Affiliates whether or not marked or stamped as confidential, including without limitation, Technology, Invention(s),\nIntellectual Property Rights, Independent Technology and any samples of products, materials or formulations including, without limitation, the\nchemical identity and any properties or specifications related to the foregoing. Any Development Program Technology, MPM Work Product,\nMSC Work Product, Hybrid Work Product, Prior End-Use Work Product and/or Shared Development Program Technology shall be\nConfidential Information of the Party that owns the subject matter under the terms set forth in this Agreement.\n1.4 “Development Program” means research and development programs that are mutually agreed upon from time to time by the Parties\nin accordance with the terms of this Agreement and described in a Development Program Form attached as Exhibit A to this Agreement.\n1.5 “Development Program Form” means the form described in Section 3.\n1.6 “Development Program Technology” means Technology that is not Independent Technology and that is conceived by at least one\nrepresentative of a Party or a Party’s Affiliates, either solely or jointly, after the Effective Date and before any expiration and/or termination of\nthis Agreement and directly attributed to work performed under any Development Program under this Agreement.\n1.7 “Effective Date” means the date first written above.\n1.8 “Hybrid Product” shall have the meaning set forth in Section 7.2 (c).\n1.9 “Hybrid Work Product” shall have the meaning set forth in Section 7.2 (c).\n1.10 “Independent Technology” means Technology and associated Intellectual Property Rights owned solely by a Party, which is\nconceived prior to the Effective Date and/or at any time outside of the course of a Development Program, provided, where such conception\noccurred after the Effective Date, the owning Party made no use of or reliance upon the other Party’s Technology for such conception or any\nsubsequent reduction to practice.\n1.11 “Intellectual Property Rights” means all worldwide utility and design patents, patent applications, and rights associated therewith,\nincluding any divisionals, continuations, continuations in part, reissues and reexaminations thereof, regardless of whether\nConfidential\n2\nsuch rights arise under the law of the United States or any other state, country or jurisdiction, as well as all know-how, trade secrets,\nproprietary information, technical data and the like.\n1.12 “Invention” means any invention, improvement, know-how, development, or discovery whether patentable or not.\n1.13 “MPM Materials” means: (i) chemical substances whether molecular or formulated and whether polymeric, monomeric or\nelemental which are based on the element silicon; (ii) sealants and adhesives, and adhesion promoters; (iii) catalytic materials including,\nwithout limitation, those based on the elements or species tin, amines, nickel, platinum, titanium and palladium; (iv) urethane additives and\nformulations containing the same; (v) additives for personal care products and resulting formulations; (vi) coatings; (vii) cross-linking agents\nand coupling agents; (viii) hardcoat formulations; (viii) ceramic powders for industrial use in the manufacture of a wide variety of goods;\n(ix) thermal management products for use in heat transfer applications; (x) ceramic parts and coated articles, electric resistance heating\nelements, and related components for use in various industrial processes; (xi) fabricated articles made from fused silica, fused quartz or glass\nfor use in the semiconductor, electronics, metallurgical, thin film and other industries; (xii) ceramic heaters and heater assemblies; (xii) metal\ncarbide coatings; and (xiii) synthetic silicone dioxide and modifications thereof.\n1.14 “MPM Work Product” shall have the meaning set forth in Section 7.2 (a).\n1.15 “MSC Materials” means (i) epoxy resins curing agents and modifiers for use across a wide range of applications including coatings,\nlaminates, composites and adhesives; (ii) adhesives for use in engineered wood products; (iii) formaldehyde and derivatives including\nhexamine, methaform and urea concentrates; (iv) mortar chemicals including liquid latexes, redispersible latex powders and other additives;\n(v) moulding compounds including epoxies, phenolics, melamine-phenolics and unsaturated polyesters; (vi) resin coated proppants;\n(vii) phenolic and amino resins including phenolic novolac, resole, powder resin solutions and water-based solutions; (viii) tackifier resins and\npine chemicals for use in hot melt adhesives, road marking applications and pressure-sensitive and non-pressure-sensitive adhesives;\n(ix) textile and non-woven resins; (x) UV curable resins for fiber optic applications; (xi) VERSATIC acid and derivatives; (xii) wax products\nand additives for use in coatings, composites and gypsum panels; and (xiii) wood composite binders for use in plywood and laminated veneer\nlumber, particleboard, MDF and oriented strand board.\n1.16 “MSC Work Product” shall have the meaning set forth in Section 7.2 (b).\n1.17 “Party” or “Parties” means, subject to Section 2, either MSC or MPM individually, or both MSC and MPM, as the text would\nwarrant.\n1.18 “Person” means any individual, corporation, partnership, association, trust, governmental authority or other entity or organization.\n1.20 “Previously Commercialized Party” shall have the meaning set forth in Section 1.21.\n1.21 “Prior End-Use Work Product” means (i) Hybrid Product or (ii) the use of any products, materials, formulations and the like that are\nmade from or include any Hybrid Product, in each case that can be used in an end-use application that has been commercially exploited by one\nParty and/or a Party’s Affiliate (but not both of the Parties including their\nConfidential\n3\nrespective Affiliates) prior to the Effective Date. The Party (including their respective Affiliates) who has previously commercialized such\nend-use application will be referred to as “Previously Commercialized Party”.\n1.22 “Purpose” shall have the meaning set forth in Section 2.\n1.23 “Royalty Obligations” means payment obligations, whether as up-front payments, royalties, license maintenance fees, milestone\npayments or any other consideration, for any royalty-bearing license granted in this Agreement that has been reasonably negotiated by the\nParties through arm’s-length good faith negotiation and agreement through the Steering Committee as provided in Section 7.4. In a scenario\nwhere the Parties have agreed to jointly pursue a commercial opportunity and the licensor Party has decided, in its sole discretion, that its\nparticipation in the joint opportunity will provide it with sufficient value, the licensor Party may decide, in its sole discretion, that a reasonable\nroyalty is one dollar or other nominal amount. The Royalty Obligations may be agreed upon as part of a Development Program Form, an\namendment to this Agreement or any other writing executed between the Parties.\n1.24 “Shared Development Program Technology” means Development Program Technology that (i) did not evolve into MPM Work\nProduct or MSC Work Product, (ii) is not Prior End-Use Work Product or (iii) does not meet the criteria set forth in Section 7.2(c)(i) through\n(v).\n1.25 “Steering Committee” means the committee described in Section 6.2 .\n1.26 “Technology” means all tangible or intangible know-how, knowledge, concepts, procedures, schematics, trade secrets, technical\ninformation and data, ideas, processes, inventions, technology, discoveries, improvements, methods, compositions, formulae, techniques, test\nresults, devices, designs, and/or manufacturing specifications and procedures, strategic business information, financial information, and any\ninformation regarding sources and prices for raw materials, subassemblies, parts and manufacturing services.\n2. Agreement Subject Matter. It is expected that the Parties will be exchanging Confidential Information with each other: (i) during their\nmutual evaluation of potential opportunities to collaborate with each other in the commercial exploitation of their respective products and\ntechnologies, (ii) during any cooperative research and development of newly developed products and technologies, and (iii) during the commercial\nphase of any cooperative exploitation of a Party’s products and/or technologies. In addition, it is expected that the Parties will also exchange\nConfidential Information during the planning for and delivery of services pursuant to that certain Shared Services Agreement, effective October 1,\n2010, subscribed to by, among other parties, MPM and Hexion Specialty Chemicals Inc. (predecessor company to MSC). Accordingly, this\nAgreement sets forth the terms and conditions for the disclosure, receipt and use of the other Party’s Confidential Information and also sets forth the\nterms and conditions for any cooperative development activities that the Parties may mutually decide to pursue. All of the activities and exchanges\nof Confidential Information described in this Section 2 shall be referred to as the “Purpose.” For the purpose of clarity, each Party will be engaging\nin activities to achieve the Purpose either by itself or with the assistance of, or through, one or more of its Affiliates. Therefore, the term “Party” (or\n“Parties”) or MPM or MSC in this Agreement shall mean the applicable Party and its respective Affiliates, as the context requires. As an exception,\nthe foregoing shall not apply to Section 7.2 since it is intended that only MPM or MSC shall become owners of the subject matter, materials and/or\nproducts contemplated therein.\nConfidential\n4\n3. Development Program. During the life of this Agreement, it is anticipated that the Parties will meet from time to time to explore\nopportunities to collaborate with each other under a Development Program to develop new products and/or technology that could potentially benefit\nthe Parties. If, as a result of these meetings, the Parties mutually agree to pursue a Development Program, the Parties will work in cooperation,\nthrough the Steering Committee or as otherwise agreed by the Parties, to define goals and objectives of such Program and, thereafter, the scope of\nwork, milestones and timelines of the Development Program. The Parties shall also define the roles and responsibilities of each Party, and nominate\nprogram leaders from each of their respective organizations, as further described in Section 6, who will work with each other to oversee and manage\nthe establishment and implementation of the Development Program and jointly develop protocols for the exchange of experimental plans, technical\nprogram data and reporting periodic progress reviews. All of the foregoing activities, etc. will be described in a separate written Development\nProgram Form, substantially in the form attached hereto as Exhibit A (Development Program Form). Each Development Program Form shall be\nsigned by a duly authorized representative of each Party and maintained by the Parties in a separate database and/or in the file where this Agreement\nis maintained. Each Party agrees to regularly share data and information generated as a result of each Development Program undertaken hereunder,\nand to promptly notify the other Party of any new Development Program Technology, including without limit, any Invention conceived or reduced to\npractice in the course of a Development Program. For the purpose of clarity, in the event that any joint development activity or initiative is carried\nout by the Parties and, in so doing, the Parties fail to complete and execute a Development Program Form, such activity will nevertheless be subject\nto all of the terms and conditions of this Agreement and such failure will not relieve a Party or the Parties from complying with this Agreement.\n4. Information Sharing.\n4.1 In order to coordinate and direct their respective research and development activities under any Development Program, the Parties,\nthrough their respective program leaders, will meet on a monthly basis, or as otherwise deemed necessary by the Parties. During these monthly\nmeetings, the Parties will review the activities undertaken in connection with any ongoing Development Programs, report on the progress\ntowards achieving any established goals and objectives and/or any perceived challenges or impediments to achieving such objectives, discuss\nthe status of the scope of work and any associated milestones and timelines and make adjustments to the scope of work, milestones and/or\ntimelines as deemed necessary or beneficial. It is expected that these monthly meetings will take place by telephone unless the Parties mutually\nagree otherwise.\n4.2 The Parties shall jointly prepare a written report every three (3) months during the life of any Development Program that outlines all\nresearch and development activities that have transpired, the current status of such activities, any relevant conclusions, future activities under\ncontemplation, and any proposed changes to the R & D scope, milestones and/or timelines. The report shall also include a clear explanation\nand documentation of any inventions, discoveries, improvements, etc. that have been made, as well as any conception records generated in the\nmanner set forth in Section 7.9 (d).\n5. Financial Terms. Unless otherwise decided by the Steering Committee and subsequently memorialized in a writing signed by the Parties’\nrespective duly authorized representatives, the Parties shall bear their respective costs relating to performance under this Agreement without any\nfinancial obligation to the other and neither Party shall be entitled to any reimbursement from the other Party for costs it incurs in support of any\nDevelopment Program.\nConfidential\n5\n6. Management of Joint Development Activities/Steering Committee.\n6.1 Both MPM and MSC would each appoint one (1) individual from their respective organizations to act as a Program Leader for each\nDevelopment Program that is pursued under this Agreement. The Program Leaders so appointed would be responsible for: (i) establishing an R\n& D team (composed of personnel having the requisite level of experience to properly and efficiently implement the Development Program);\n(ii) developing an R & D plan pursuant to the general guidelines set forth in Sections 2 and 3; (iii) overseeing the day-to-day management and\nimplementation of the Development Program on behalf of MPM and MSC; and (iv) coordinating the exchange of routine Development\nProgram-related communications between MPM and MSC. The Program Leaders would be further responsible for establishing a patent\ndevelopment strategy including, among other things, patent procurement targets, to protect all Development Program Technology. In addition,\nthe Program Leaders will prepare an outline detailing proposed ownership of patents and patent applications, consistent with the ownership\nprovisions of Section 7.2, that are likely to evolve from the Development Program on or before six (6) months from the date of commencement\nof the Development Program in question. This outline will, in turn, be reviewed by the Steering Committee and adopted or modified, as the\nSteering Committee deems appropriate. As a Development Program approaches its latter stages and the Parties have established an\nunderstanding of the potential value associated with the Development Program Technology and other work product resulting from a\nDevelopment Program, the Program Leaders will prepare a proposed business model or value-sharing proposition for consideration by the\nSteering Committee. In the event that the Parties decide, by mutual agreement or Steering Committee determination, that a particular\nDevelopment Program would be executed and managed more efficiently by one of the Program Leaders due to his or her prior experience in\nthe targeted subject matter area, the Parties, or the Steering Committee, may nominate one of the Program Leaders to serve as the managing\nProgram Leader for that particular Development Program.\n6.2 Both MPM and MSC would each appoint three (3) individuals from their respective organizations to form a Steering Committee; one\n(1) individual should be a senior-level representative selected from the marketing/commercial group, one (1) individual should be a senior-\nlevel representative selected from the technology group and the third individual can be selected as a Party deems appropriate. In general, the\nfunctions of the Steering Committee would be to provide strategic direction to the Program Leaders and make informed decisions regarding\nthe direction, management and implementation of the Development Program(s). Each Party, in its sole discretion, would be permitted to\nchange its own Steering Committee members by providing written notice to the other Party, along with an explanation of why the change is\nbeing made.\n6.3 The Steering Committee would meet in person at least two (2) times per year or as otherwise deemed necessary. The location of\nmeetings would alternate between MPM and MSC host facilities. Alternatively, the Steering Committee, at its discretion, could conduct these\nmeeting via telephone. Steering Committee decisions would become effective with a unanimous vote. Each member of the Steering Committee\nwould have one (1) vote.\n6.4 In addition to addressing the matters set forth in Sections 3, 5, 6.1, 6.2 and 7.2 (c), or by way of further clarifying such matters, the\nSteering Committee would consider and reach decisions on the following matters:\nConfidential\n6\n(a) Whether to accept, reject or modify R & D plans or Development Programs proposed by the Program Leaders;\n(b) Whether to continue or modify ongoing Development Programs;\n(c) Approve or reject key milestone events for Development Programs, as established by the Program Leaders, including anticipated\ndeliverables and dates of completion and revise and/or add secondary milestones as necessary;\n(d) Whether to procure resources that are needed from time to time in the execution of any Development Program;\n(e) Discuss and decide upon commercialization options and strategies for exploiting any technologies, products, systems, materials and\nthe like that result from work performed under a Development Program and provide specific guidance and direction to MPM and MSC for\nexecuting any established commercialization strategies; and\n(f) Make reasonable determination of Royalty Obligations as contemplated under this Agreement.;\n7. Intellectual Property Ownership, Commercial Principles and Licenses.\n7.1 Independent Technology. Each Party acknowledges and agrees that, as between the Parties, each Party is and shall remain for all\npurposes hereunder the sole and exclusive owner of all right, title and interest in and to its Independent Technology and all associated\nIntellectual Property Rights. Each Party acknowledges that it acquires no rights under this Agreement to the other Party’s Independent\nTechnology or associated Intellectual Property Rights other than the limited licenses expressly granted in this Agreement.\n7.2 Ownership of Development Program Technology and Related Intellectual Property Rights. Unless otherwise agreed in writing, and\nsubject to Section 7.1, ownership of Development Program Technology and all Intellectual Property Rights derived therefrom shall be as\nfollows:\n(a) MPM. As between the Parties, MPM shall own all Development Program Technology relating to (i) MPM Materials, (ii) all know-\nhow and processes relating to the manufacture of MPM Materials, (iii) all analytical and/or quality control techniques used in the\nConfidential\n7\nevaluation of MPM Materials, (iv) all uses of any MPM Materials (without use of any MSC Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MPM Material (without the use or inclusion of\nany MSC Material). MPM shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed\npursuant to this Agreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be\nreferred to as “MPM Work Product.” MSC hereby assigns to MPM the entire right, title and interest in and to the MPM Work Product,\nincluding without limit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or\napplicable to such MPM Work Product.\n(b) MSC. As between the Parties, MSC shall own all Development Program Technology relating to (1) MSC Materials, (ii) all know-how\nand processes relating to the manufacture of MSC Materials, (iii) all analytical and/or quality control techniques used in the evaluation of MSC\nMaterials, (iv) all uses of any MSC Materials (without the use or inclusion of any MPM Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MSC Material (does not include an MPM\nMaterial). MSC shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed pursuant to this\nAgreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be referred to as\n“MSC Work Product.” MPM hereby assigns to MSC the entire right, title and interest in and to the MSC Work Product, including without\nlimit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or applicable to\nsuch MPM Work Product.\n(c) Ownership Requiring A Steering Committee Decision . Subject to Section 7.2(e), the Steering Committee shall decide, on a case-by -\ncase basis, which Party owns, as between the Parties, Development Program Technology relating to: (i) any product, material, composition of\nmatter, system or the like that includes an MPM Material and an MSC Material (“Hybrid Product”), (ii) all know-how, processes, etc., relating\nto the manufacture of any Hybrid Product, (iii) all analytical and/or quality control techniques used in the evaluation of any Hybrid Product,\n(iv) any and all end-use applications of any Hybrid Product, provided that such end-use applications have never been commercially exploited\nby either of the Parties, or have been commercially exploited by both of the Parties, prior to the Effective Date, (v) any and all end-use\napplications of products, materials, formulations and the like that are made from or include any Hybrid Product, provided that such end-use\napplications have never been commercially exploited by either of the Parties, or have been commercially exploited by both of the Parties, prior\nto the Effective Date and (vi) Shared Development Program Technology. All of the foregoing in (i) through (vi) shall be referred to as “Hybrid\nWork Product.” An owner of any Hybrid Work Product as decided by the Steering Committee shall also own all of the Intellectual Property\nRights in the Development Program Technology derived from that Hybrid Work Product and the non-owning Party hereby assigns to the\nowning Party the entire right, title and interest in and to that Hybrid Work Product, including without limit, any Inventions and Intellectual\nProperty Rights derived from the Development Program Technology associated with or applicable to such Hybrid Work Product.\n(d) Joint Ownership As Default Decision. In the event that the Steering Committee is unable to reach a decision regarding the ownership\nof Development Program Technology and related Intellectual Property Rights resulting from Hybrid Work Product as contemplated in\nSection 7.2 (c) at the Steering Committee meeting that the particular ownership issue is presented for consideration, or within thirty (30) days\nthereafter should the Steering\nConfidential\n8\nCommittee decide that it needs more time to reach a definitive decision, then the Parties shall jointly own that Hybrid Work Product and such\nrelated Intellectual Property Rights until a definitive decision is reached, provided that, during any period of joint ownership, neither Party will\n(i) exercise such joint ownership in a way that is inconsistent with the intent and the terms and conditions of this Agreement, (ii) assign or\ntransfer title to any such work product or Intellectual Property Rights without the other Party’s express prior written consent, or (iii) license or\notherwise provide such Hybrid Work Product or Intellectual Property Rights to any third party, including without limitation any competitor of\nthe other Party or any infringer or potential infringer which the other Party is pursuing or plans to pursue. In the event that a definitive decision\nis reached with respect to the ownership of the subject Hybrid Work Product and related Intellectual Property Rights derived from\nDevelopment Program Technology, the owning party will own such Hybrid Work Product and such related Intellectual Property Rights under\nthe terms and conditions of this Agreement. In the event that a definitive decision assigning ownership of any Hybrid Work Product and related\nIntellectual Property Rights derived from Development Program Technology to one of the Parties is never reached, then the Parties will\ncontinue to jointly own such Hybrid Work Product and related Intellectual Property Rights derived from Development Program Technology\nsubject to the terms of this Section 7.2 (d).\n(e) Other Ownership Provisions. As between the Parties, the Previously Commercialized Party shall own all Development Program\nTechnology relating to the Prior End-Use Work Product in the end-use application that it has commercialized prior to the Effective Date. An\nowner of Prior End-Use Work Product shall also own all of the Intellectual Property Rights in the Development Program Technology derived\nfrom that Prior End-Use Work Product and the non-owning Party hereby assigns to the owning Party the entire right, title and interest in and to\nthat Prior End-Use Work Product, including without limit, any Inventions and Intellectual Property Rights in the Development Program\nTechnology associated with or applicable to such Prior End-Use Work Product.\n7.3 Research Licenses.\n(a) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIndependent Technology of the owner Party, solely to permit the other Party’s (by itself and/or through its Affiliates’) performance of research\nand development activities in connection with the execution and implementation of any Development Program under this Agreement and/or to\npursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development initiatives outside\nthe scope of this Agreement. In the event that a Party’s and/or its Affiliates’ (“Licensor Party”) Independent Technology is used under the\nlicense granted in this Section 7.3 (a) by the other Party and/or its Affiliates (“Licensee Party”) to pursue independent research and\ndevelopment initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention and/or\nTechnology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license under\nsuch Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology.\n(b) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIntellectual Property Rights derived from the Development Program Technology directly related to the MPM Work Product, MSC Work\nProduct, Hybrid Work Product and Prior End-Use Work\nConfidential\n9\nProduct (as the case may be) of the owner Party, solely to permit the other Party’s performance (by itself and/or through its Affiliates) of\nresearch and development activities in connection with the execution and implementation of any Development Program under this Agreement\nand/or to pursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development\ninitiatives outside the scope of this Agreement. In the event that a Party’s and/or its Affiliates’ (“Licensor Party”) Independent Technology is\nused under the license granted in this Section 7.3 (b) by the other Party and/or its Affiliate (“Licensee Party”) to pursue independent research\nand development initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention\nand/or Technology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license\nunder such Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology\n7.4 Commercial Principles.\nEach Party agrees to use commercially reasonable efforts to develop, implement and follow collaborative strategies for the commercialization\nof any MSC Material, MPM Material and/or Hybrid Product. The purpose of the foregoing obligation is to provide each Party with an equitable and\nbalanced opportunity to derive value and monetary return from opportunities that might result from any work or collaboration done under this\nAgreement. One component of any evaluation of a collaborative commercial strategy will include an analysis of the value proposition associated\nwith the joint pursuit of a commercial opportunity by the Parties. One such consideration is the Royalty Obligations that would be associated with\nthe commercial licenses granted under Sections 7.5 through 7.8, which will be negotiated and agreed to by the respective representatives of the\nParties through the Steering Committe in arm’s-length good faith negotiations. Each Party acknowledges and agrees that the agreement on the\nRoyalty Obligations is a condition precedent to the effectiveness of the commercial licenses granted under Sections 7.5 through 7.8 and the licensee\nParty will pay the Royalty Obligations during the term of such licenses. It is expected that the Steering Committee members will play a primary role\nin fulfilling the obligations under this Section 7.4 on behalf of their respective organizations. If, after using commercially reasonable efforts to satisfy\nthese obligations, the Parties decide that it is not commercially feasible or desirable to pursue a commercial opportunity jointly, each Party shall be\npermitted to separately pursue the opportunity. For the purpose of clarity, the Parties do not intend for anything contained in this Section 7.4 to create\nany partnership, agency, joint venture or the like between the Parties. Indeed, the Parties intend, at all times, to maintain their separate legal identities\nas they work together under this Agreement.\n7.5 MPM Licenses To MSC.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MPM Work Product to make, have made, use,\nsell, offer to sell and import MSC Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.5 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.5. This license does not grant MSC any sublicense rights and does not include any license to MPM’s Intellectual\nConfidential\n10\nProperty Rights that relate to MPM’s Independent Technology. MPM agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MSC’s Materials and/or Hybrid Products by a customer who purchases MSC\nMaterials and/or Hybrid Products from MSC.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MSC shall not actually have any licensed rights under this Section 7.5 (b) until the applicable Royalty\nObligations have been agreed to by the Parties as provided in Section 7.4. This license also includes a right for MSC to sublicense the licensed\nright of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MSC Materials and/or\nHybrid Products, provided that this license shall not become effective and MSC shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MPM agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.5 (c) based on a use of MSC’s Materials and/or\nHybrid Products by a customer who purchases MSC Materials and/or Hybrid Products from MSC.\n7.6 MSC Licenses To MPM.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MSC Work Product to make, have made, use,\nsell, offer to sell and import MPM Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.6 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.4. This license does not grant MPM any sublicense rights and does not include any license to MSC’s Intellectual\nProperty Rights that relate to MSC’s Independent Technology. MSC agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MPM’s Materials and/or Hybrid Products by a customer who purchases MPM\nMaterials and/or Hybrid Products from MPM.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MPM shall not actually have any licensed rights under\nConfidential\n11\nthis Section 7.6 (b) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license also\nincludes a right for MPM to sublicense the licensed right of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MPM Materials and/or\nHybrid Products, provided that this license shall not become effective and MPM shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MSC agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.6 (c) based on a use of MPM’s Materials\nand/or Hybrid Products by a customer who purchases MPM Materials and/or Hybrid Products from MPM.\n7.7 Cross Licenses\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by the licensee Party\nunder this Section, each Party agrees to grant and does hereby grant to the other Party and its Affiliates, on behalf of itself and its Affiliates, a\nnonexclusive, royalty-bearing, worldwide, revocable license under its Intellectual Property Rights derived from, and only from, Hybrid Work\nProduct that it owns under this Agreement to make, have made, use, sell, offer to sell and import Hybrid Products, provided that this license\nshall not become effective and neither licensee Party shall actually have any licensed rights under this Section 7.7(a) until the applicable\nRoyalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license does not grant either Party any sublicense\nrights and does not include any license to either Party’s Intellectual Property Rights that relate to a granting Party’s Independent Technology.\nEach Party agrees not to enforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.7 (a) based on a use\nof Hybrid products by a customer who purchases Hybrid Products from the licensee Party.\n7.8 Other Additional License. While the Parties have endeavored to include all licensing arrangements in this Agreement that are deemed\nnecessary or desirable to allow each Party to conduct the activities contemplated in this Agreement or as a result of this Agreement, the Parties\nrecognize that there may be a need to subsequently establish other licensing arrangements between the Parties. In the event that a Party decides\nthat it is necessary or desirable to enter into one or more licensing arrangements not included in this Agreement, each Party agrees to enter into\ngood faith negotiations with each other for such licenses. Any additional licenses shall only become effective by way of a written amendment\nto this Agreement signed by a duly authorized representative of each Party.\n7.9 Patent Procurement Procedures.\n(a) An owner of the MPM Work Product, MSC Work Product, Hybrid Work Product and Prior End-Use Work Product, as set forth\nabove, shall have the right, in its own discretion, to file patent applications in the United States and in any country of the world outside the\nUnited States in its own name. Each Party, at the request of the other Party, shall exercise reasonable efforts to support the filing of patent\napplications by the other Party in their respective technical fields of ownership. Such efforts shall include support by inventors and\nConfidential\n12\nexecution of all legal documents (applications, assignments and declarations). All costs of preparing, filing and prosecuting patent applications\nowned by a Party, and of maintaining such Patents, shall be borne by said Party. In the event a Party decides against filing a patent application\ndirected to any Development Program Technology that it owns under this Agreement and, additionally, the owning Party does not wish to\nmaintain such Development Program Technology as a trade secret, the other non-owning Party shall have the right to take ownership of such\nDevelopment Program Technology for no additional consideration, and agrees that it shall bear all costs associated with the procurement and\nmaintenance of any patents. Analogously, if the owner of a patent directed to Development Program Technology resulting from this Agreement\nis no longer interested in maintaining such patent, the owner will provide the other Party with reasonable advanced notice of its intent to allow\nthe patent to lapse to give the other Party the opportunity to pay the maintenance fees and assume ownership of the patent in question for no\nadditional consideration. Also, if a Party decides against filing a patent application directed to Development Program Technology in a\nparticular country or countries that are of interest to the other Party, the owning Party will allow the other Party to effectuate the filings in those\nother countries, at the other Party’s expense, and the other Party will assume ownership of that patent application and any patent(s) issuing\ntherefrom without the need to pay any additional consideration. In the event that a transfer by one Party to the other Party occurs under this\nSection 7.9 (a), the transferor shall retain a royalty-free, worldwide, nonexclusive, irrevocable license under the transferred Development\nProgram Technology and/or Intellectual Property Rights in question.\n(b) In those instances where each Party will be filing a patent application that will disclose and/or claim subject matter that is related or\nsimilar to the subject matter presented in the other Party’s patent application, the Parties agree to file their respective priority patent\napplications on the same day. In order to facilitate and execute this requirement, the Parties’ patent counsel will coordinate and implement the\nappropriate actions.\n(c) The Parties agree that when filing patent applications directed to their respective areas of technical subject matter, they will not claim\nsubject matter owned by the other Party, without receiving the other Party’s written consent.\n(d) A separate record of conception shall be prepared for each invention relating to Technology conceived under any Development\nProgram. Each conception record shall include a proper description of the conceived invention. The conception record shall also include a\ndescription of an operative method of making the invention (where appropriate), as well as a description of the utility of the invention. The\nconception record, including the foregoing descriptions, shall be read by one having a level of skill in the art in the technical field in question\nrequired to understand the substance of such record (“Corroborating Witness”). Finally, the conception record shall be signed and dated by the\nperson(s) who conceived the invention and by the Corroborating Witness. Subject to Section 8 (where appropriate), a copy of each conception\nrecord generated under this Agreement shall be provided to the other Party for review, along with the written reports contemplated in\nSection 4.2 .\n(e) The Parties agree and acknowledge that this Agreement is and shall be treated as a “joint research agreement” within the meaning of\nTitle 35 U.S .C. §103(c). The Parties agree to permit one another the right to disclose to the United States Patent and Trademark Office\n(“USPTO”) and other foreign patent prosecution offices, where appropriate or necessary, the existence and identifying information of patent\napplications that are filed by the other Party; and the existence of this Agreement.\nConfidential\n13\n(f) While either Party may rely upon Title 35 U.S .C. §103(c) to overcome a prior art issue or to overcome a rejection imposed by the\nUSPTO, so that the Party disqualifies the other Party’s patent or patent application as prior art, the Parties agree to use reasonable efforts to\ntraverse a rejection by the USPTO without resorting to Title 35 U.S .C. §103(c). Should a Party ultimately elect, at its sole option and\ndiscretion, to rely upon Title 35 U.S.C. §103(c), the Parties shall cooperate in obtaining and filing any and all required papers, documents,\napprovals, consents and/or authorizations and including amending patent applications to identify the Parties as necessary to take advantage of\nTitle 35 U.S .C. §103(c).\n(g) The Parties agree that, if a double patenting issue arises in either a reexamination proceeding, an issued patent, or in a patent\napplication that has been filed under this Agreement, the Parties shall use reasonable efforts to address the issue without filing a terminal\ndisclaimer. However, if a Party ultimately determines, at its sole option and discretion, that the best course of action for that Party is to file a\nterminal disclaimer, the Parties agree to sign, and otherwise cooperate in the execution and filing, of a terminal disclaimer that complies with\n37 C.F.R. §1.321, and any other similar USPTO rule or regulation then in effect. The Parties recognize that filing such a terminal disclaimer\nprohibits the Parties from separately enforcing the U.S . patents that issue from the involved applications or the involved patents (hereinafter\ncollectively “Involved U.S. Patents”). Should issues of enforcement arise with respect to the Involved U.S . Patents, the Parties agree to\ndiscuss, in good faith, terms and conditions for jointly enforcing such Involved U.S. Patents.\n7.10 Further Acts and Assistance. The Parties agree to perform, during and after the term of this Agreement, all customary acts that are\nreasonably necessary or desirable to permit and assist the other in obtaining, perfecting and enforcing the full benefits, enjoyment, rights and\ntitle in the Intellectual Property assigned to the other Party under this Agreement. In the event that it becomes necessary to compensate any\nemployee of MSC or MPM who invented any Invention or Intellectual Property Rights, both MPM and MSC shall be obligated to compensate\nits own employees and shall have no obligation to compensate any of the other Party’s employees.\n8. Confidential Information.\n8.1 Each Party will maintain in strict confidence all Confidential Information received from the other Party. Each Party agrees that it will\nnot use, disclose to any third Person or grant use of such Confidential Information except to the extent required to achieve the Purpose or as\notherwise authorized in advance by the other Party in writing. Each Party agrees to use at least the same standard of care as it uses to protect its\nown confidential information of a similar nature to ensure that its employees do not disclose or make any unauthorized use of such\nConfidential Information, but in no case less than a reasonable standard of care. Each Party will disclose the other Party’s Confidential\nInformation only to those of such Party’s employees, and subject to the other Party’s prior written approval, consultants and contractors who\nneed to know such information to assist the Party in achieving the Purpose. Each Party certifies that each such employee, consultant and\ncontractor will have agreed in writing, either as a condition to employment or in order to obtain the other Party’s Confidential Information, to\nbe bound by confidentiality terms and conditions substantially similar to those terms and conditions applicable to each Party under this\nAgreement. Each Party guarantees that any of its employees, consultants, contractors, etc. that receive the other Party’s Confidential\nInformation hereunder will abide by the confidentiality and limited use obligations undertaken by a receiving Party under this Agreement.\nEach Party will promptly\nConfidential\n14\nnotify the other Party upon discovery of any unauthorized use or disclosure of such Party’s Confidential Information.\n8.2 The Parties agree that the existence of this Agreement and its terms will also be considered Confidential Information and agree not to\ndisclose the terms of this Agreement to a third Person without the prior written consent of the other Party, except (i) as required to enforce the\nterms of this Agreement, (ii) to financial institutions, accountants, advisors and counsel or (iii) as required by statute, regulation or the order of\na court of competent jurisdiction. A disclosure of any Confidential Information (i) in response to a valid order by a court or other governmental\nbody or (ii) as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other\npurposes; provided, however, that the Party making such disclosure will provide prompt prior written notice thereof to the owner Party to\nenable the owner Party to seek a protective order or otherwise prevent such disclosure.\n8.3 The foregoing obligations of confidentiality in this Section 8 will not apply to the extent that it can be established by the receiving\nParty by competent proof that such Confidential Information: (i) was generally available to the public or otherwise part of the public domain at\nthe time of disclosure to the receiving Party; (ii) became generally available to the public or otherwise part of the public domain after the\nowner Party disclosed such information to the receiving Party, other than through any act or omission of the receiving Party in breach of this\nSection 8, or (iii) was independently created or developed by such Party without reference to the Confidential Information of the other Party.\n8.4 A Party that receives product or material samples from the other Party shall not reverse engineer or analyze samples for chemical or\nstructural composition without the prior written consent of the disclosing Party. The results of all analyses of samples will be regarded as\nConfidential Information of the disclosing Party and will be treated by the receiving Party with the same strict confidentiality and restrictions\non limited-use and disclosure as the other Confidential Information referred to above. The receiving Party will provide the disclosing Party\nwith a written summary of these analyses.\n8.5 Publicity. Except as otherwise expressed in this Agreement, neither Party shall, without the prior written consent of the other, make\nany news release, public announcement, or other disclosure to any third Person or any public denial or public confirmation of the existence of\nthis Agreement, any disclosure of the Parties’ working together or any other fact concerning, arising out of or in connection with this\nAgreement, the terms or provisions hereof or any subsequent arrangement(s) between the Parties concerning any activities hereunder. Each\nParty additionally agrees that the name of the other Party, and their respective employees’ names, will not be used for purposes of advertising\nor publicity without the other Party’s prior written consent.\n8.6 Publications. Each Party additionally agrees that in order to safeguard patent rights, each Party, upon the request of the other, will\ndelay any public disclosure of any Invention generated in the course of a Development Program under this Agreement for a time period of up\nto three (3) months from the date of disclosure to the other Party in order to permit the filing of patent application(s). Each Party agrees to\ndisclose the filing of any patent application arising from this Agreement to the other, permit the other Party’s review thereof, and to cooperate\nin the filing of any such patent applications desired by the disclosing Party as set forth in Section 7.9 hereof. Should any such patent\napplication of one Party contain any\nConfidential\n15\nConfidential Information of the other Party, then the Parties will resolve prior to filing whether such information is to be deleted from such\napplication before its filing.\n9. Warranties and Liability.\n9.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY\nREPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY\nWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT\nTO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, CONFIDENTIAL INFORMATION,\nINTELLECTUAL PROPERTY RIGHTS, TECHNOLOGY, DEVELOPMENT PROGRAM WORK PRODUCT, INDEPENDENT\nTECHNOLOGY, MATERIALS, PRODUCTS AND THE LIKE, OR ANY PORTION OF COMPONENT THEREOF.\n9.2 IN NO EVENT SHALL A PARTY BE LIABLE FOR OR OBLIGATED IN ANY MANNER TO PAY ANY CONSEQUENTIAL,\nSPECIAL, PUNITIVE OR INDIRECT DAMAGES TO THE OTHER PARTY OR TO ANY OF ITS AGENTS, EMPLOYEES,\nCONTRACTORS, REPRESENTATIVES OR AFFILIATES FOR BREACH OF ANY PROVISIONS OF THIS AGREEMENT.\n10. Term and Termination.\n10.1 Term. Unless earlier terminated pursuant to Section 10.2 or 10.3, this Agreement begins on the Effective Date and shall continue for\na period of twenty (20) years, which term may be extended by the Parties upon mutual written agreement.\n10.2 Termination for Cause. If either Party materially breaches this Agreement, the non-breaching may terminate this Agreement or, if\napplicable, a particular Development Program, by written notice; provided, however, that the written notice clearly describes the nature of the\nalleged breach, the events and circumstances that gave rise to the alleged breach and a clear explanation of whether this Agreement, a\nparticular Development Program or both are being terminated. No termination under this Section 10.2 will be effective until the non-breaching\nParty provides written notice of such breach to the other Party and such Party fails to cure such breach within thirty (30) days of such notice.\nAny termination shall become effective at the expiration of such thirty (30) day notice period. Notice of termination for cause will be in\nwriting and sent by certified mail, postage prepaid, return receipt requested. If a particular Development Program is terminated without the\ntermination of the entire Agreement, this Agreement will be terminated only with respect to such Development Program and will remain in\neffect with respect to the then outstanding Development Programs in accordance with their terms and or any other Development Programs the\nParties decide to pursue under this Agreement.\n10.3 Termination for Change of Control. If a Party undergoes a Change of Control, unless such event has been consented to in writing by\nthe other Party under Section 12.2, the other Party may terminate this Agreement immediately upon written notice.\n10.4 Effect of Termination.\nConfidential\n16\n(a) Upon any termination or expiration of this Agreement, all rights and obligations granted to either Party under this Agreement will\nimmediately terminate, except as provided in Section 10.5 and that Sections 8 and 9 will survive in accordance with their terms. Upon any\ntermination or expiration of this Agreement, each Party will cease all use of and return the other Party’s property and Confidential Information,\nexcept for one archival copy or to the extent such property or Confidential Information is needed to be retained for a Party to exercise any\nsurviving rights provided under Section 10.5 .\n(b) There may be one or more Development Programs pending at the time when notice of termination of this Agreement is first given. As\nof the date of receipt of that notice, each Party may decide to discontinue disclosing Confidential Information relating to its Independent\nTechnology to the other Party for the pending Development Programs; however, except in the case of a termination the Development Program\nin question or the entire Agreement, the Parties agree to work together diligently to bring each pending Development Program to a logical and\norderly close. Among other things, the Parties shall meet promptly thereafter in order to (a) prioritize work during the remaining term of each\nDevelopment Project, and (b) agree upon a reasonable time frame for the Parties to diligently complete such Development Programs on which\nthe Parties are close to completion. The Parties agree that their cooperative efforts from that time forward shall be focused to accomplish the\nagreed work, even if the work extends for up to one hundred and eighty (180) days beyond the noticed termination date.\n10.5 Survival. Nothing herein shall be construed to release any liability or obligation of either Party to the other for acts or omissions\nprior to the termination or expiration of this Agreement. Without limiting the foregoing:\n(a) If a Party receiving commercial licenses under Sections 7.5 through 7.8 (“Licensee Party”) terminates under Section 10.2 for the\nuncured material breach of a Party granting licenses under those Sections (“Licensor Party), the licenses and rights granted under those\nSections will survive any such termination in accordance with their terms, provided that the Licensee Party continues to pay Royalty\nObligations for such licenses. Any such licenses and rights shall survive for a period that is co-extensive with the last to expire Intellectual\nProperty Right subject to the license in question.\n(b) If Licensor Party terminates under Section 10.2 for Licensee Party’s uncured material breach, then:\n(i) The commercial licenses granted under Sections 7.5 through 7.8 will terminate and be of no further force and effect except that\nLicensee Party may continue to exercise such licenses solely as necessary to (A) continue to sell any inventory of products related to\nsuch licenses, and to manufacture and sell all products related to such licenses that are then in the process of being manufactured, for a\nperiod of no longer than six (6) months after the effective date of termination, and (B) to meet Licensee Party’s then-existing (as of the\neffective date of termination) contractual obligations to third parties, for a period of no longer than [twelve (12)] months after the\neffective date of termination, subject to payment of applicable Royalty Obligations for such licenses; and\n(ii) Upon the end of the applicable period set forth in Section 11.5(b)(i), each sublicense previously granted by Licensee Party or\nany Affiliate of such Licensee Party under this Agreement shall remain in effect and shall become a direct license of such rights by\nLicensor Party to such sublicensee, subject to such sublicensee agreeing in\nConfidential\n17\nwriting to assume Licensee Party’s terms, conditions and obligations to Licensor Party under this Agreement as they pertain to the\nsublicensed rights.\n(c) Termination or expiration of this Agreement will not relieve either Party from its payment obligations hereunder for any charges,\npayments or expenses due to the other Party that accrued prior to the termination or expiration date, and such amounts (if not otherwise due on\nan earlier date or disputed in good faith) shall be immediately due and payable on the termination or expiration date.\n11. Miscellaneous.\n11.1 Notices. All notices and requests under this Agreement (i) shall be in writing, (ii) may be delivered personally, sent by commercial\ncourier with tracking capabilities - costs prepaid, mailed by certified or registered mail—return receipt requested with postage prepaid, at the\noption of the sending Party, and (iii) shall be sent to and shall be effective on the date of recorded delivery at the receiving Party’s address for\nnotice. The initial address for notice is set forth below. Any subsequent address for notice shall be changed by notice given pursuant to this\nSection 11.1.\nIf to MSC:\nChief Technology Officer\nMomentive Specialty Chemicals Inc.\n180 East Broad Street\nColumbus, Ohio 43215\nwith a simultaneous copy to the General Counsel at the same address.\nIf to MPM:\nChief Technology Officer\nMomentive Performance Materials Inc.\n22 Corporate Woods Boulevard\nAlbany, New York 12211\nwith a simultaneous copy to the General Counsel at the same address.\n11.2 Assignment. Neither Party shall have the right to assign or transfer this Agreement or any right, obligation of performance, or\ninterest hereunder, whether voluntary or involuntary, without first receiving the other Party’s prior written consent. Any attempt at assigning or\ntransferring this Agreement in violation of this Section 1l.2 shall be invalid and void and shall have no effect.\n11.3 Waivers. No waiver by a Party of any condition or breach of any provision of this Agreement will be effective unless in writing, and\nno waiver in any one or more instances will be deemed to be a further or continuing waiver of any such condition or breach in other instances\nor a waiver of any other condition or breach of any other provision.\n11.4 Counterparts. This Agreement may be executed simultaneously in identical counterparts, each of which will be deemed an original,\nbut all of which together will constitute one and the same instrument. A facsimile transmission of the executed signature page of this\nAgreement will constitute due and proper execution of this Agreement by the Party executing the signature page.\nConfidential\n18\n11.5 Construction. The Section headings are for convenience only and will not be deemed part of this Agreement. The language of this\nAgreement will be construed according to its fair meaning. Any rule of construction resolving ambiguities against the drafting Party will not\napply in the interpretation of this Agreement. No specific representation, warranty or covenant contained in this Agreement will limit the\ngenerality or applicability of a more general representation, warranty or covenant.\n11.6 Independent Contractors. Each Party’s relationship with the other is that of an independent contractor, and nothing in this\nAgreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Neither Party will\nbe entitled to any of the benefits that the other may make available to its employees, including, but not limited to, group health or life\ninsurance, profit sharing or retirement benefits. Neither Party is authorized to make any representation, contract or commitment on behalf of\nthe other.\n11.7 Severability. If any provision of this Agreement is unenforceable or invalid under any applicable law or is so held by applicable\ncourt decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will\nbe changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable\nlaw or applicable court decisions; provided, however that if the Parties are unable to so change the provision, then the affected Party may\nterminate this Agreement upon thirty (30) days notice.\n11.8 Governing Law. This Agreement and any dispute under this Agreement will be governed by and construed under the laws of the\nState of New York without regard to any of its conflict of laws principles.\n11.9 Survival. Subject to section 10.5, any provisions of this Agreement shall continue in full force and effect after termination of this\nAgreement, which are provisions that by their nature or purpose are intended to survive the termination of this Agreement.,\n11.10 Entire Understanding. This Agreement and the attached exhibits set forth the entire agreement and understanding of the Parties in\nrespect to the transactions contemplated and supersedes all prior agreements, arrangements, representations, term sheets and understandings\nrelating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented only in a writing signed by\nrespective officers of the Parties. This Agreement is not intended to confer upon any person, other than the signing Parties, any rights or\nremedies.\nConfidential\n19\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nMPM:\nMSC:\nMOMENTIVE PERFORMANCE MATERIALS INC.\nMOMENTIVE SPECIALTY CHEMICALS INC.\nBy:\nAuthorized Person\nBy:\nAuthorized Person\nPrint Name:\nPrint Name:\nTitle:\nTitle:\nDate:\nMarch 17, 2011\nDate:\nMarch 17, 2011\nConfidential\n20\nExhibit A\n(MODEL) DEVELOPMENT PROGRAM FORM\nThis Development Program Form describes the research program to be conducted by the Parties, and is governed by, is an attachment to and is,\nupon execution by the Parties, incorporated by reference into the Master Confidentiality and Joint Development Agreement by and between\nMomentive Specialty Chemicals Inc. (“MSC”) and Momentive Performance Materials Inc. (“MPM”) with an Effective Date of October 1, 2010 (the\n“Agreement.”) All the terms used in this Development Program Form shall retain the same meaning as defined in the Agreement and such\ndefinitions are incorporated herein by reference. In the event of any conflict between the provisions of the Agreement and of this Development\nProgram Form, the terms of the Agreement shall prevail. The terms and conditions of this Development Program Form are applicable solely to the\nresearch and development program described herein and in no way affect or alter the terms of any other Development Program Forms incorporated\ninto the Agreement prior to or after the Effective Date of this Development Program Form. This Development Program Form shall be effective as of\nthe date of the last signature below.\n1. Scope:\n2. Date of Program Commencement:\n3. Content and Timeline of Project:\n4. Business Units Involved in Program:\n5. Roles and Responsibilities:\n6. Key Contact Persons:\n7. Protocols for:\nA. Experimental Plans\nB. Data and Information Exchange\nC. Reporting and Periodic Progress Reports\n6. Deliverables:\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nConfidential\n21\nMPM:\nMSC:\nBy:\nBy:\nPrint Name:\nPrint Name:\nTitle:\nTitle:\nDate:\nDate:\nConfidential\n22	EX-10.2 3 dex102.htm MASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nExhibit 10.2\nMASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nThis Master Confidentiality and Joint Development Agreement (“Agreement”) is by and between Momentive Specialty Chemicals Inc., with a\nprincipal place of business at 180 East Broad Street, Columbus, Ohio 43215 (“MSC”), and Momentive Performance Materials Inc., with a principal\nplace of business at 22 Corporate Woods Boulevard, Albany, NY 12211 (“MPM”). The effective date of this Agreement is October 1, 2010\n(“Effective Date”).\nRECITALS\nWHEREAS, MSC makes and sells epoxy, phenolic and coating products and materials, as well as forest products, and has developed, and\ncontinues to develop, proprietary technology and intellectual property relating to such products and materials, the manufacture of such products and\nmaterials and the use of such products and materials in a wide variety of end-use applications;\nWHEREAS, MPM makes and sells silicones, quartz and ceramics products and materials, and has developed, and continues to develop,\nproprietary technology and intellectual property relating to such products and materials, the manufacture of such products and materials and the use\nof such products and materials in a wide variety of end-use applications;\nWHEREAS, MSC and MPM are Affiliates, although separate legal entities, and are both commonly indirectly owned by Momentive\nPerformance Materials Holdings LLC;\nWHEREAS, MSC and MPM mutually desire to cooperate with each other from time to time in the exchange of confidential information and\nproprietary technology and/or in the joint development of certain technology and/or products as the Parties mutually deem appropriate throughout\nthe life of this Agreement; and\nWHEREAS, in the event that new technology, products, materials and the like, including any resulting intellectual property related thereto, are\ndeveloped under this Agreement, MSC and MPM desire to set forth their respective rights regarding the ownership and use of such technology,\nproducts, materials and associated intellectual property.\nNOW, THEREFORE, in consideration of the material covenants and promises set forth herein the receipt and sufficiency of which is hereby\nagreed and acknowledged, the Parties agree as follows:\n1. Definitions.\n1.1 “Affiliate” means any entity that directly or indirectly owns, is owned by, or is under the common ownership with a Party, at any time\nduring the term of this Agreement. “Owns”, “owned” or “ownership” means direct or indirect possession of more than fifty percent (50%) of\nthe votes of holders of a corporation’s voting securities, or a comparable equity or other ownership interest in any other type of entity; provided\nthat for the purposes of this Agreement, MPM and its Affiliates shall not constitute Affiliates of MSC or its Affiliates, and vice-versa.\nConfidential 1\n1.2 “Change of Control” means the occurrence of any of the following events: (a) any sale, lease, exchange or other transfer (in one\ntransaction or a series of related transactions) of all or substantially all of the assets of either of MSC or MPM to any entity or group, together\nwith any Affiliates thereof; (b) consummation of a sale of capital stock, merger, consolidation, reorganization or other transaction (or series of\nrelated transactions) involving either of MSC or MPM following which the direct or indirect beneficial owners of the applicable Party (or any\nof them) as of the date hereof do not hold, collectively, capital stock or other securities of the surviving corporation (i) with voting power to\nelect a majority of the surviving entity’s board of directors or equivalent, or (ii) representing a beneficial interest in the surviving entity equal\nto at least a majority thereof or (c) any other transaction the result of which is that MPM shall no longer constitute an Affiliate of MSC. For\npurposes of this definition, no effect shall be given to the proviso to the definition of “Affiliate” set forth in Section 1.1.\n1.3 “Confidential Information” means any technical or commercial information or data, trade secrets, know-how, etc., of either Party or\ntheir respective Affiliates whether or not marked or stamped as confidential, including without limitation, Technology, Invention(s),\nIntellectual Property Rights, Independent Technology and any samples of products, materials or formulations including, without limitation, the\nchemical identity and any properties or specifications related to the foregoing. Any Development Program Technology, MPM Work Product,\nMSC Work Product, Hybrid Work Product, Prior End-Use Work Product and/or Shared Development Program Technology shall be\nConfidential Information of the Party that owns the subject matter under the terms set forth in this Agreement.\n1.4 “Development Program” means research and development programs that are mutually agreed upon from time to time by the Parties\nin accordance with the terms of this Agreement and described in a Development Program Form attached as Exhibit A to this Agreement.\n1.5 “Development Program Form” means the form described in Section 3.\n1.6 “Development Program Technology” means Technology that is not Independent Technology and that is conceived by at least one\nrepresentative of a Party or a Party’s Affiliates, either solely or jointly, after the Effective Date and before any expiration and/or termination of\nthis Agreement and directly attributed to work performed under any Development Program under this Agreement.\n1.7 “Effective Date” means the date first written above.\n1.8 “Hybrid Product” shall have the meaning set forth in Section 7.2 (c).\n1.9 “Hybrid Work Product” shall have the meaning set forth in Section 7.2 (c).\n1.10 “Independent Technology” means Technology and associated Intellectual Property Rights owned solely by a Party, which is\nconceived prior to the Effective Date and/or at any time outside of the course of a Development Program, provided, where such conception\noccurred after the Effective Date, the owning Party made no use of or reliance upon the other Party’s Technology for such conception or any\nsubsequent reduction to practice.\n1.11 “Intellectual Property Rights” means all worldwide utility and design patents, patent applications, and rights associated therewith,\nincluding any divisionals, continuations, continuations in part, reissues and reexaminations thereof, regardless of whether\nConfidential 2\nsuch rights arise under the law of the United States or any other state, country or jurisdiction, as well as all know-how, trade secrets,\nproprietary information, technical data and the like.\n1.12 “Invention” means any invention, improvement, know-how, development, or discovery whether patentable or not.\n1.13 “MPM Materials” means: (i) chemical substances whether molecular or formulated and whether polymeric, monomeric or\nelemental which are based on the element silicon; (ii) sealants and adhesives, and adhesion promoters; (iii) catalytic materials including,\nwithout limitation, those based on the elements or species tin, amines, nickel, platinum, titanium and palladium; (iv) urethane additives and\nformulations containing the same; (v) additives for personal care products and resulting formulations; (vi) coatings; (vii) cross-linking agents\nand coupling agents; (viii) hardcoat formulations; (viii) ceramic powders for industrial use in the manufacture of a wide variety of goods;\n(ix) thermal management products for use in heat transfer applications; (x) ceramic parts and coated articles, electric resistance heating\nelements, and related components for use in various industrial processes; (xi) fabricated articles made from fused silica, fused quartz or glass\nfor use in the semiconductor, electronics, metallurgical, thin film and other industries; (xii) ceramic heaters and heater assemblies; (xii) metal\ncarbide coatings; and (xiii) synthetic silicone dioxide and modifications thereof.\n1.14 “MPM Work Product” shall have the meaning set forth in Section 7.2 (a).\n1.15 “MSC Materials” means (i) epoxy resins curing agents and modifiers for use across a wide range of applications including coatings,\nlaminates, composites and adhesives; (ii) adhesives for use in engineered wood products; (iii) formaldehyde and derivatives including\nhexamine, methaform and urea concentrates; (iv) mortar chemicals including liquid latexes, redispersible latex powders and other additives;\n(v) moulding compounds including epoxies, phenolics, melamine-phenolics and unsaturated polyesters; (vi) resin coated proppants;\n(vii) phenolic and amino resins including phenolic novolac, resole, powder resin solutions and water-based solutions; (viii) tackifier resins and\npine chemicals for use in hot melt adhesives, road marking applications and pressure-sensitive and non-pressure-sensitive adhesives;\n(ix) textile and non-woven resins; (x) UV curable resins for fiber optic applications; (xi) VERSATIC acid and derivatives; (xii) wax products\nand additives for use in coatings, composites and gypsum panels; and (xiii) wood composite binders for use in plywood and laminated veneer\nlumber, particleboard, MDF and oriented strand board.\n1.16 “MSC Work Product” shall have the meaning set forth in Section 7.2 (b).\n1.17 “Party” or “Parties” means, subject to Section 2, either MSC or MPM individually, or both MSC and MPM, as the text would\nwarrant.\n1.18 “Person” means any individual, corporation, partnership, association, trust, governmental authority or other entity or organization.\n1.20 “Previously Commercialized Party” shall have the meaning set forth in Section 1.21.\n1.21 “Prior End-Use Work Product” means (i) Hybrid Product or (ii) the use of any products, materials, formulations and the like that are\nmade from or include any Hybrid Product, in each case that can be used in an end-use application that has been commercially exploited by one\nParty and/or a Party’s Affiliate (but not both of the Parties including their\nConfidential 3\nrespective Affiliates) prior to the Effective Date. The Party (including their respective Affiliates) who has previously commercialized such\nend-use application will be referred to as “Previously Commercialized Party”.\n1.22 “Purpose” shall have the meaning set forth in Section 2.\n1.23 “Royalty Obligations” means payment obligations, whether as up-front payments, royalties, license maintenance fees, milestone\npayments or any other consideration, for any royalty-bearing license granted in this Agreement that has been reasonably negotiated by the\nParties through arm’s-length good faith negotiation and agreement through the Steering Committee as provided in Section 7.4. In a scenario\nwhere the Parties have agreed to jointly pursue a commercial opportunity and the licensor Party has decided, in its sole discretion, that its\nparticipation in the joint opportunity will provide it with sufficient value, the licensor Party may decide, in its sole discretion, that a reasonable\nroyalty is one dollar or other nominal amount. The Royalty Obligations may be agreed upon as part of a Development Program Form, an\namendment to this Agreement or any other writing executed between the Parties.\n1.24 “Shared Development Program Technology” means Development Program Technology that (i) did not evolve into MPM Work\nProduct or MSC Work Product, (ii) is not Prior End-Use Work Product or (iii) does not meet the criteria set forth in Section 7.2(c)(i) through\n).\n1.25 “Steering Committee” means the committee described in Section 6.2.\n1.26 “Technology” means all tangible or intangible know-how, knowledge, concepts, procedures, schematics, trade secrets, technical\ninformation and data, ideas, processes, inventions, technology, discoveries, improvements, methods, compositions, formulae, techniques, test\nresults, devices, designs, and/or manufacturing specifications and procedures, strategic business information, financial information, and any\ninformation regarding sources and prices for raw materials, subassemblies, parts and manufacturing services.\n2. Agreement Subject Matter. It is expected that the Parties will be exchanging Confidential Information with each other: (i) during their\nmutual evaluation of potential opportunities to collaborate with each other in the commercial exploitation of their respective products and\ntechnologies, (ii) during any cooperative research and development of newly developed products and technologies, and (iii) during the commercial\nphase of any cooperative exploitation of a Party’s products and/or technologies. In addition, it is expected that the Parties will also exchange\nConfidential Information during the planning for and delivery of services pursuant to that certain Shared Services Agreement, effective October 1,\n2010, subscribed to by, among other parties, MPM and Hexion Specialty Chemicals Inc. (predecessor company to MSC). Accordingly, this\nAgreement sets forth the terms and conditions for the disclosure, receipt and use of the other Party’s Confidential Information and also sets forth the\nterms and conditions for any cooperative development activities that the Parties may mutually decide to pursue. All of the activities and exchanges\nof Confidential Information described in this Section 2 shall be referred to as the “Purpose.” For the purpose of clarity, each Party will be engaging\nin activities to achieve the Purpose either by itself or with the assistance of, or through, one or more of its Affiliates. Therefore, the term “Party” (or\n“Parties”) or MPM or MSC in this Agreement shall mean the applicable Party and its respective Affiliates, as the context requires. As an exception,\nthe foregoing shall not apply to Section 7.2 since it is intended that only MPM or MSC shall become owners of the subject matter, materials and/or\nproducts contemplated therein.\nConfidential 4\n3. Development Program. During the life of this Agreement, it is anticipated that the Parties will meet from time to time to explore\nopportunities to collaborate with each other under a Development Program to develop new products and/or technology that could potentially benefit\nthe Parties. If, as a result of these meetings, the Parties mutually agree to pursue a Development Program, the Parties will work in cooperation,\nthrough the Steering Committee or as otherwise agreed by the Parties, to define goals and objectives of such Program and, thereafter, the scope of\nwork, milestones and timelines of the Development Program. The Parties shall also define the roles and responsibilities of each Party, and nominate\nprogram leaders from each of their respective organizations, as further described in Section 6, who will work with each other to oversee and manage\nthe establishment and implementation of the Development Program and jointly develop protocols for the exchange of experimental plans, technical\nprogram data and reporting periodic progress reviews. All of the foregoing activities, etc. will be described in a separate written Development\nProgram Form, substantially in the form attached hereto as Exhibit A (Development Program Form). Each Development Program Form shall be\nsigned by a duly authorized representative of each Party and maintained by the Parties in a separate database and/or in the file where this Agreement\nis maintained. Each Party agrees to regularly share data and information generated as a result of each Development Program undertaken hereunder,\nand to promptly notify the other Party of any new Development Program Technology, including without limit, any Invention conceived or reduced to\npractice in the course of a Development Program. For the purpose of clarity, in the event that any joint development activity or initiative is carried\nout by the Parties and, in so doing, the Parties fail to complete and execute a Development Program Form, such activity will nevertheless be subject\nto all of the terms and conditions of this Agreement and such failure will not relieve a Party or the Parties from complying with this Agreement.\n4. Information Sharing.\n4.1 In order to coordinate and direct their respective research and development activities under any Development Program, the Parties,\nthrough their respective program leaders, will meet on a monthly basis, or as otherwise deemed necessary by the Parties. During these monthly\nmeetings, the Parties will review the activities undertaken in connection with any ongoing Development Programs, report on the progress\ntowards achieving any established goals and objectives and/or any perceived challenges or impediments to achieving such objectives, discuss\nthe status of the scope of work and any associated milestones and timelines and make adjustments to the scope of work, milestones and/or\ntimelines as deemed necessary or beneficial. It is expected that these monthly meetings will take place by telephone unless the Parties mutually\nagree otherwise.\n4.2 The Parties shall jointly prepare a written report every three (3) months during the life of any Development Program that outlines all\nresearch and development activities that have transpired, the current status of such activities, any relevant conclusions, future activities under\ncontemplation, and any proposed changes to the R & D scope, milestones and/or timelines. The report shall also include a clear explanation\nand documentation of any inventions, discoveries, improvements, etc. that have been made, as well as any conception records generated in the\nmanner set forth in Section 7.9 (d).\n5. Financial Terms. Unless otherwise decided by the Steering Committee and subsequently memorialized in a writing signed by the Parties’\nrespective duly authorized representatives, the Parties shall bear their respective costs relating to performance under this Agreement without any\nfinancial obligation to the other and neither Party shall be entitled to any reimbursement from the other Party for costs it incurs in support of any\nDevelopment Program.\nConfidential 5\n6. Management of Joint Development Activities/Steering Committee.\n6.1 Both MPM and MSC would each appoint one (1) individual from their respective organizations to act as a Program Leader for each\nDevelopment Program that is pursued under this Agreement. The Program Leaders so appointed would be responsible for: (i) establishing an R\n& D team (composed of personnel having the requisite level of experience to properly and efficiently implement the Development Program);\n(ii) developing an R & D plan pursuant to the general guidelines set forth in Sections 2 and 3; (iii) overseeing the day-to-day management and\nimplementation of the Development Program on behalf of MPM and MSC; and (iv) coordinating the exchange of routine Development\nProgram-related communications between MPM and MSC. The Program Leaders would be further responsible for establishing a patent\ndevelopment strategy including, among other things, patent procurement targets, to protect all Development Program Technology. In addition,\nthe Program Leaders will prepare an outline detailing proposed ownership of patents and patent applications, consistent with the ownership\nprovisions of Section 7.2, that are likely to evolve from the Development Program on or before six (6) months from the date of commencement\nof the Development Program in question. This outline will, in turn, be reviewed by the Steering Committee and adopted or modified, as the\nSteering Committee deems appropriate. As a Development Program approaches its latter stages and the Parties have established an\nunderstanding of the potential value associated with the Development Program Technology and other work product resulting from a\nDevelopment Program, the Program Leaders will prepare a proposed business model or value-sharing proposition for consideration by the\nSteering Committee. In the event that the Parties decide, by mutual agreement or Steering Committee determination, that a particular\nDevelopment Program would be executed and managed more efficiently by one of the Program Leaders due to his or her prior experience in\nthe targeted subject matter area, the Parties, or the Steering Committee, may nominate one of the Program Leaders to serve as the managing\nProgram Leader for that particular Development Program.\n6.2 Both MPM and MSC would each appoint three (3) individuals from their respective organizations to form a Steering Committee; one\n(1) individual should be a senior-level representative selected from the marketing/commercial group, one (1) individual should be a senior-\nlevel representative selected from the technology group and the third individual can be selected as a Party deems appropriate. In general, the\nfunctions of the Steering Committee would be to provide strategic direction to the Program Leaders and make informed decisions regarding\nthe direction, management and implementation of the Development Program(s). Each Party, in its sole discretion, would be permitted to\nchange its own Steering Committee members by providing written notice to the other Party, along with an explanation of why the change is\nbeing made.\n6.3 The Steering Committee would meet in person at least two (2) times per year or as otherwise deemed necessary. The location of\nmeetings would alternate between MPM and MSC host facilities. Alternatively, the Steering Committee, at its discretion, could conduct these\nmeeting via telephone. Steering Committee decisions would become effective with a unanimous vote. Each member of the Steering Committee\nwould have one (1) vote.\n6.4 In addition to addressing the matters set forth in Sections 3, 5, 6.1, 6.2 and 7.2 (c), or by way of further clarifying such matters, the\nSteering Committee would consider and reach decisions on the following matters:\nConfidential 6\n(a) Whether to accept, reject or modify R & D plans or Development Programs proposed by the Program Leaders;\n(b) Whether to continue or modify ongoing Development Programs;\n(c) Approve or reject key milestone events for Development Programs, as established by the Program Leaders, including anticipated\ndeliverables and dates of completion and revise and/or add secondary milestones as necessary;\n(d) Whether to procure resources that are needed from time to time in the execution of any Development Program;\n(e) Discuss and decide upon commercialization options and strategies for exploiting any technologies, products, systems, materials and\nthe like that result from work performed under a Development Program and provide specific guidance and direction to MPM and MSC for\nexecuting any established commercialization strategies; and\n(f) Make reasonable determination of Royalty Obligations as contemplated under this Agreement.;\n7.1 Independent Technology. Each Party acknowledges and agrees that, as between the Parties, each Party is and shall remain for all\npurposes hereunder the sole and exclusive owner of all right, title and interest in and to its Independent Technology and all associated\nIntellectual Property Rights. Each Party acknowledges that it acquires no rights under this Agreement to the other Party’s Independent\nTechnology or associated Intellectual Property Rights other than the limited licenses expressly granted in this Agreement.\n7.2 Ownership of Development Program Technology and Related Intellectual Property Rights. Unless otherwise agreed in writing, and\nsubject to Section 7.1, ownership of Development Program Technology and all Intellectual Property Rights derived therefrom shall be as\nfollows:\n(a) MPM. As between the Parties, MPM shall own all Development Program Technology relating to (i) MPM Materials, (ii) all know-\nhow and processes relating to the manufacture of MPM Materials, (iii) all analytical and/or quality control techniques used in the\nConfidential 7\nevaluation of MPM Materials, (iv) all uses of any MPM Materials (without use of any MSC Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MPM Material (without the use or inclusion of\nany MSC Material). MPM shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed\npursuant to this Agreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be\nreferred to as “MPM Work Product.” MSC hereby assigns to MPM the entire right, title and interest in and to the MPM Work Product,\nincluding without limit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or\napplicable to such MPM Work Product.\n(b) MSC. As between the Parties, MSC shall own all Development Program Technology relating to (1) MSC Materials, (ii) all know-how\nand processes relating to the manufacture of MSC Materials, (iii) all analytical and/or quality control techniques used in the evaluation of MSC\nMaterials, (iv) all uses of any MSC Materials (without the use or inclusion of any MPM Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MSC Material (does not include an MPM\nMaterial). MSC shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed pursuant to this\nAgreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be referred to as\n“MSC Work Product.” MPM hereby assigns to MSC the entire right, title and interest in and to the MSC Work Product, including without\nlimit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or applicable to\nsuch MPM Work Product.\n(c) Ownership Requiring A Steering Committee Decision. Subject to Section 7.2(e), the Steering Committee shall decide, on a case-by-\ncase basis, which Party owns, as between the Parties, Development Program Technology relating to: (i) any product, material, composition of\nmatter, system or the like that includes an MPM Material and an MSC Material (“Hybrid Product™), (ii) all know-how, processes, etc., relating\nto the manufacture of any Hybrid Product, (iii) all analytical and/or quality control techniques used in the evaluation of any Hybrid Product,\n(iv) any and all end-use applications of any Hybrid Product, provided that such end-use applications have never been commercially exploited\nby either of the Parties, or have been commercially exploited by both of the Parties, prior to the Effective Date, (v) any and all end-use\napplications of products, materials, formulations and the like that are made from or include any Hybrid Product, provided that such end-use\napplications have never been commercially exploited by either of the Parties, or have been commercially exploited by both of the Parties, prior\nto the Effective Date and (vi) Shared Development Program Technology. All of the foregoing in (i) through (vi) shall be referred to as “Hybrid\nWork Product.” An owner of any Hybrid Work Product as decided by the Steering Committee shall also own all of the Intellectual Property\nRights in the Development Program Technology derived from that Hybrid Work Product and the non-owning Party hereby assigns to the\nowning Party the entire right, title and interest in and to that Hybrid Work Product, including without limit, any Inventions and Intellectual\nProperty Rights derived from the Development Program Technology associated with or applicable to such Hybrid Work Product.\n(d) Joint Ownership As Default Decision. In the event that the Steering Committee is unable to reach a decision regarding the ownership\nof Development Program Technology and related Intellectual Property Rights resulting from Hybrid Work Product as contemplated in\nSection 7.2 (c) at the Steering Committee meeting that the particular ownership issue is presented for consideration, or within thirty (30) days\nthereafter should the Steering\nConfidential 8\nCommittee decide that it needs more time to reach a definitive decision, then the Parties shall jointly own that Hybrid Work Product and such\nrelated Intellectual Property Rights until a definitive decision is reached, provided that, during any period of joint ownership, neither Party will\n(i) exercise such joint ownership in a way that is inconsistent with the intent and the terms and conditions of this Agreement, (ii) assign or\ntransfer title to any such work product or Intellectual Property Rights without the other Party’s express prior written consent, or (iii) license or\notherwise provide such Hybrid Work Product or Intellectual Property Rights to any third party, including without limitation any competitor of\nthe other Party or any infringer or potential infringer which the other Party is pursuing or plans to pursue. In the event that a definitive decision\nis reached with respect to the ownership of the subject Hybrid Work Product and related Intellectual Property Rights derived from\nDevelopment Program Technology, the owning party will own such Hybrid Work Product and such related Intellectual Property Rights under\nthe terms and conditions of this Agreement. In the event that a definitive decision assigning ownership of any Hybrid Work Product and related\nIntellectual Property Rights derived from Development Program Technology to one of the Parties is never reached, then the Parties will\ncontinue to jointly own such Hybrid Work Product and related Intellectual Property Rights derived from Development Program Technology\nsubject to the terms of this Section 7.2 (d).\n(e) Other Ownership Provisions. As between the Parties, the Previously Commercialized Party shall own all Development Program\nTechnology relating to the Prior End-Use Work Product in the end-use application that it has commercialized prior to the Effective Date. An\nowner of Prior End-Use Work Product shall also own all of the Intellectual Property Rights in the Development Program Technology derived\nfrom that Prior End-Use Work Product and the non-owning Party hereby assigns to the owning Party the entire right, title and interest in and to\nthat Prior End-Use Work Product, including without limit, any Inventions and Intellectual Property Rights in the Development Program\nTechnology associated with or applicable to such Prior End-Use Work Product.\n7.3 Research Licenses.\n(a) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIndependent Technology of the owner Party, solely to permit the other Party’s (by itself and/or through its Affiliates’) performance of research\nand development activities in connection with the execution and implementation of any Development Program under this Agreement and/or to\npursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development initiatives outside\nthe scope of this Agreement. In the event that a Party’s and/or its Affiliates’ (“Licensor Party”) Independent Technology is used under the\nlicense granted in this Section 7.3 (a) by the other Party and/or its Affiliates (“Licensee Party”) to pursue independent research and\ndevelopment initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention and/or\nTechnology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license under\nsuch Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology.\n(b) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIntellectual Property Rights derived from the Development Program Technology directly related to the MPM Work Product, MSC Work\nProduct, Hybrid Work Product and Prior End-Use Work\nConfidential 9\nProduct (as the case may be) of the owner Party, solely to permit the other Party’s performance (by itself and/or through its Affiliates) of\nresearch and development activities in connection with the execution and implementation of any Development Program under this Agreement\nand/or to pursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development\ninitiatives outside the scope of this Agreement. In the event that a Party’s and/or its Affiliates’ (“Licensor Party”) Independent Technology is\nused under the license granted in this Section 7.3 (b) by the other Party and/or its Affiliate (“Licensee Party”) to pursue independent research\nand development initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention\nand/or Technology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license\nunder such Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology\n7.4 Commercial Principles.\nEach Party agrees to use commercially reasonable efforts to develop, implement and follow collaborative strategies for the commercialization\nof any MSC Material, MPM Material and/or Hybrid Product. The purpose of the foregoing obligation is to provide each Party with an equitable and\nbalanced opportunity to derive value and monetary return from opportunities that might result from any work or collaboration done under this\nAgreement. One component of any evaluation of a collaborative commercial strategy will include an analysis of the value proposition associated\nwith the joint pursuit of a commercial opportunity by the Parties. One such consideration is the Royalty Obligations that would be associated with\nthe commercial licenses granted under Sections 7.5 through 7.8, which will be negotiated and agreed to by the respective representatives of the\nParties through the Steering Committe in arm’s-length good faith negotiations. Each Party acknowledges and agrees that the agreement on the\nRoyalty Obligations is a condition precedent to the effectiveness of the commercial licenses granted under Sections 7.5 through 7.8 and the licensee\nParty will pay the Royalty Obligations during the term of such licenses. It is expected that the Steering Committee members will play a primary role\nin fulfilling the obligations under this Section 7.4 on behalf of their respective organizations. If, after using commercially reasonable efforts to satisfy\nthese obligations, the Parties decide that it is not commercially feasible or desirable to pursue a commercial opportunity jointly, each Party shall be\npermitted to separately pursue the opportunity. For the purpose of clarity, the Parties do not intend for anything contained in this Section 7.4 to create\nany partnership, agency, joint venture or the like between the Parties. Indeed, the Parties intend, at all times, to maintain their separate legal identities\nas they work together under this Agreement.\n7.5 MPM Licenses To MSC.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MPM Work Product to make, have made, use,\nsell, offer to sell and import MSC Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.5 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.5. This license does not grant MSC any sublicense rights and does not include any license to MPM’s Intellectual\nConfidential 10\nProperty Rights that relate to MPM’s Independent Technology. MPM agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MSC’s Materials and/or Hybrid Products by a customer who purchases MSC\nMaterials and/or Hybrid Products from MSC.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MSC shall not actually have any licensed rights under this Section 7.5 (b) until the applicable Royalty\nObligations have been agreed to by the Parties as provided in Section 7.4. This license also includes a right for MSC to sublicense the licensed\nright of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MSC Materials and/or\nHybrid Products, provided that this license shall not become effective and MSC shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MPM agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.5 (c) based on a use of MSC’s Materials and/or\nHybrid Products by a customer who purchases MSC Materials and/or Hybrid Products from MSC.\n7.6 MSC Licenses To MPM.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MSC Work Product to make, have made, use,\nsell, offer to sell and import MPM Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.6 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.4. This license does not grant MPM any sublicense rights and does not include any license to MSC’s Intellectual\nProperty Rights that relate to MSC’s Independent Technology. MSC agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MPM’s Materials and/or Hybrid Products by a customer who purchases MPM\nMaterials and/or Hybrid Products from MPM.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MPM shall not actually have any licensed rights under\nConfidential 11\nthis Section 7.6 (b) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license also\nincludes a right for MPM to sublicense the licensed right of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MPM Materials and/or\nHybrid Products, provided that this license shall not become effective and MPM shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MSC agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.6 (c) based on a use of MPM’s Materials\nand/or Hybrid Products by a customer who purchases MPM Materials and/or Hybrid Products from MPM.\n7.7 Cross Licenses\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by the licensee Party\nunder this Section, each Party agrees to grant and does hereby grant to the other Party and its Affiliates, on behalf of itself and its Affiliates, a\nnonexclusive, royalty-bearing, worldwide, revocable license under its Intellectual Property Rights derived from, and only from, Hybrid Work\nProduct that it owns under this Agreement to make, have made, use, sell, offer to sell and import Hybrid Products, provided that this license\nshall not become effective and neither licensee Party shall actually have any licensed rights under this Section 7.7(a) until the applicable\nRoyalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license does not grant either Party any sublicense\nrights and does not include any license to either Party’s Intellectual Property Rights that relate to a granting Party’s Independent Technology.\nEach Party agrees not to enforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.7 (a) based on a use\nof Hybrid products by a customer who purchases Hybrid Products from the licensee Party.\n7.8 Other Additional License. While the Parties have endeavored to include all licensing arrangements in this Agreement that are deemed\nnecessary or desirable to allow each Party to conduct the activities contemplated in this Agreement or as a result of this Agreement, the Parties\nrecognize that there may be a need to subsequently establish other licensing arrangements between the Parties. In the event that a Party decides\nthat it is necessary or desirable to enter into one or more licensing arrangements not included in this Agreement, each Party agrees to enter into\ngood faith negotiations with each other for such licenses. Any additional licenses shall only become effective by way of a written amendment\nto this Agreement signed by a duly authorized representative of each Party.\n7.9 Patent Procurement Procedures.\n(a) An owner of the MPM Work Product, MSC Work Product, Hybrid Work Product and Prior End-Use Work Product, as set forth\nabove, shall have the right, in its own discretion, to file patent applications in the United States and in any country of the world outside the\nUnited States in its own name. Each Party, at the request of the other Party, shall exercise reasonable efforts to support the filing of patent\napplications by the other Party in their respective technical fields of ownership. Such efforts shall include support by inventors and\nConfidential 12\nexecution of all legal documents (applications, assignments and declarations). All costs of preparing, filing and prosecuting patent applications\nowned by a Party, and of maintaining such Patents, shall be borne by said Party. In the event a Party decides against filing a patent application\ndirected to any Development Program Technology that it owns under this Agreement and, additionally, the owning Party does not wish to\nmaintain such Development Program Technology as a trade secret, the other non-owning Party shall have the right to take ownership of such\nDevelopment Program Technology for no additional consideration, and agrees that it shall bear all costs associated with the procurement and\nmaintenance of any patents. Analogously, if the owner of a patent directed to Development Program Technology resulting from this Agreement\nis no longer interested in maintaining such patent, the owner will provide the other Party with reasonable advanced notice of its intent to allow\nthe patent to lapse to give the other Party the opportunity to pay the maintenance fees and assume ownership of the patent in question for no\nadditional consideration. Also, if a Party decides against filing a patent application directed to Development Program Technology in a\nparticular country or countries that are of interest to the other Party, the owning Party will allow the other Party to effectuate the filings in those\nother countries, at the other Party’s expense, and the other Party will assume ownership of that patent application and any patent(s) issuing\ntherefrom without the need to pay any additional consideration. In the event that a transfer by one Party to the other Party occurs under this\nSection 7.9 (a), the transferor shall retain a royalty-free, worldwide, nonexclusive, irrevocable license under the transferred Development\nProgram Technology and/or Intellectual Property Rights in question.\n(b) In those instances where each Party will be filing a patent application that will disclose and/or claim subject matter that is related or\nsimilar to the subject matter presented in the other Party’s patent application, the Parties agree to file their respective priority patent\napplications on the same day. In order to facilitate and execute this requirement, the Parties’ patent counsel will coordinate and implement the\nappropriate actions.\n(c) The Parties agree that when filing patent applications directed to their respective areas of technical subject matter, they will not claim\nsubject matter owned by the other Party, without receiving the other Party’s written consent.\n(d) A separate record of conception shall be prepared for each invention relating to Technology conceived under any Development\nProgram. Each conception record shall include a proper description of the conceived invention. The conception record shall also include a\ndescription of an operative method of making the invention (where appropriate), as well as a description of the utility of the invention. The\nconception record, including the foregoing descriptions, shall be read by one having a level of skill in the art in the technical field in question\nrequired to understand the substance of such record (“Corroborating Witness™). Finally, the conception record shall be signed and dated by the\nperson(s) who conceived the invention and by the Corroborating Witness. Subject to Section 8 (where appropriate), a copy of each conception\nrecord generated under this Agreement shall be provided to the other Party for review, along with the written reports contemplated in\nSection 4.2.\n(e) The Parties agree and acknowledge that this Agreement is and shall be treated as a “joint research agreement” within the meaning of\nTitle 35 U.S.C. §103(c). The Parties agree to permit one another the right to disclose to the United States Patent and Trademark Office\n(“USPTO”) and other foreign patent prosecution offices, where appropriate or necessary, the existence and identifying information of patent\napplications that are filed by the other Party; and the existence of this Agreement.\nConfidential 13\n(f) While either Party may rely upon Title 35 U.S.C. §103(c) to overcome a prior art issue or to overcome a rejection imposed by the\nUSPTO, so that the Party disqualifies the other Party’s patent or patent application as prior art, the Parties agree to use reasonable efforts to\ntraverse a rejection by the USPTO without resorting to Title 35 U.S.C. §103(c). Should a Party ultimately elect, at its sole option and\ndiscretion, to rely upon Title 35 U.S.C. §103(c), the Parties shall cooperate in obtaining and filing any and all required papers, documents,\napprovals, consents and/or authorizations and including amending patent applications to identify the Parties as necessary to take advantage of\nTitle 35 U.S.C. §103(c).\n(g) The Parties agree that, if a double patenting issue arises in either a reexamination proceeding, an issued patent, or in a patent\napplication that has been filed under this Agreement, the Parties shall use reasonable efforts to address the issue without filing a terminal\ndisclaimer. However, if a Party ultimately determines, at its sole option and discretion, that the best course of action for that Party is to file a\nterminal disclaimer, the Parties agree to sign, and otherwise cooperate in the execution and filing, of a terminal disclaimer that complies with\n37 C.F.R. §1.321, and any other similar USPTO rule or regulation then in effect. The Parties recognize that filing such a terminal disclaimer\nprohibits the Parties from separately enforcing the U.S. patents that issue from the involved applications or the involved patents (hereinafter\ncollectively “Involved U.S. Patents”). Should issues of enforcement arise with respect to the Involved U.S. Patents, the Parties agree to\ndiscuss, in good faith, terms and conditions for jointly enforcing such Involved U.S. Patents.\n7.10 Further Acts and Assistance. The Parties agree to perform, during and after the term of this Agreement, all customary acts that are\nreasonably necessary or desirable to permit and assist the other in obtaining, perfecting and enforcing the full benefits, enjoyment, rights and\ntitle in the Intellectual Property assigned to the other Party under this Agreement. In the event that it becomes necessary to compensate any\nemployee of MSC or MPM who invented any Invention or Intellectual Property Rights, both MPM and MSC shall be obligated to compensate\nits own employees and shall have no obligation to compensate any of the other Party’s employees.\n8. Confidential Information.\n8.1 Each Party will maintain in strict confidence all Confidential Information received from the other Party. Each Party agrees that it will\nnot use, disclose to any third Person or grant use of such Confidential Information except to the extent required to achieve the Purpose or as\notherwise authorized in advance by the other Party in writing. Each Party agrees to use at least the same standard of care as it uses to protect its\nown confidential information of a similar nature to ensure that its employees do not disclose or make any unauthorized use of such\nConfidential Information, but in no case less than a reasonable standard of care. Each Party will disclose the other Party’s Confidential\nInformation only to those of such Party’s employees, and subject to the other Party’s prior written approval, consultants and contractors who\nneed to know such information to assist the Party in achieving the Purpose. Each Party certifies that each such employee, consultant and\ncontractor will have agreed in writing, either as a condition to employment or in order to obtain the other Party’s Confidential Information, to\nbe bound by confidentiality terms and conditions substantially similar to those terms and conditions applicable to each Party under this\nAgreement. Each Party guarantees that any of its employees, consultants, contractors, etc. that receive the other Party’s Confidential\nInformation hereunder will abide by the confidentiality and limited use obligations undertaken by a receiving Party under this Agreement.\nEach Party will promptly\nConfidential 14\nnotify the other Party upon discovery of any unauthorized use or disclosure of such Party’s Confidential Information.\n8.2 The Parties agree that the existence of this Agreement and its terms will also be considered Confidential Information and agree not to\ndisclose the terms of this Agreement to a third Person without the prior written consent of the other Party, except (i) as required to enforce the\nterms of this Agreement, (ii) to financial institutions, accountants, advisors and counsel or (iii) as required by statute, regulation or the order of\na court of competent jurisdiction. A disclosure of any Confidential Information (i) in response to a valid order by a court or other governmental\nbody or (ii) as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other\npurposes; provided, however, that the Party making such disclosure will provide prompt prior written notice thereof to the owner Party to\nenable the owner Party to seek a protective order or otherwise prevent such disclosure.\n8.3 The foregoing obligations of confidentiality in this Section 8 will not apply to the extent that it can be established by the receiving\nParty by competent proof that such Confidential Information: (i) was generally available to the public or otherwise part of the public domain at\nthe time of disclosure to the receiving Party; (ii) became generally available to the public or otherwise part of the public domain after the\nowner Party disclosed such information to the receiving Party, other than through any act or omission of the receiving Party in breach of this\nSection 8, or (iii) was independently created or developed by such Party without reference to the Confidential Information of the other Party.\n8.4 A Party that receives product or material samples from the other Party shall not reverse engineer or analyze samples for chemical or\nstructural composition without the prior written consent of the disclosing Party. The results of all analyses of samples will be regarded as\nConfidential Information of the disclosing Party and will be treated by the receiving Party with the same strict confidentiality and restrictions\non limited-use and disclosure as the other Confidential Information referred to above. The receiving Party will provide the disclosing Party\nwith a written summary of these analyses.\n8.5 Publicity. Except as otherwise expressed in this Agreement, neither Party shall, without the prior written consent of the other, make\nany news release, public announcement, or other disclosure to any third Person or any public denial or public confirmation of the existence of\nthis Agreement, any disclosure of the Parties’ working together or any other fact concerning, arising out of or in connection with this\nAgreement, the terms or provisions hereof or any subsequent arrangement(s) between the Parties concerning any activities hereunder. Each\nParty additionally agrees that the name of the other Party, and their respective employees’ names, will not be used for purposes of advertising\nor publicity without the other Party’s prior written consent.\n8.6 Publications. Each Party additionally agrees that in order to safeguard patent rights, each Party, upon the request of the other, will\ndelay any public disclosure of any Invention generated in the course of a Development Program under this Agreement for a time period of up\nto three (3) months from the date of disclosure to the other Party in order to permit the filing of patent application(s). Each Party agrees to\ndisclose the filing of any patent application arising from this Agreement to the other, permit the other Party’s review thereof, and to cooperate\nin the filing of any such patent applications desired by the disclosing Party as set forth in Section 7.9 hereof. Should any such patent\napplication of one Party contain any\nConfidential 15\nConfidential Information of the other Party, then the Parties will resolve prior to filing whether such information is to be deleted from such\napplication before its filing.\n9. Warranties and Liability.\n9.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY\nREPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY\nWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT\nTO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, CONFIDENTIAL INFORMATION,\nINTELLECTUAL PROPERTY RIGHTS, TECHNOLOGY, DEVELOPMENT PROGRAM WORK PRODUCT, INDEPENDENT\nTECHNOLOGY, MATERIALS, PRODUCTS AND THE LIKE, OR ANY PORTION OF COMPONENT THEREOF.\n9.2 IN NO EVENT SHALL A PARTY BE LIABLE FOR OR OBLIGATED IN ANY MANNER TO PAY ANY CONSEQUENTIAL,\nSPECIAL, PUNITIVE OR INDIRECT DAMAGES TO THE OTHER PARTY OR TO ANY OF ITS AGENTS, EMPLOYEES,\nCONTRACTORS, REPRESENTATIVES OR AFFILIATES FOR BREACH OF ANY PROVISIONS OF THIS AGREEMENT.\n10. Term and Termination.\n10.1 Term. Unless earlier terminated pursuant to Section 10.2 or 10.3, this Agreement begins on the Effective Date and shall continue for\na period of twenty (20) years, which term may be extended by the Parties upon mutual written agreement.\n10.2 Termination for Cause. If either Party materially breaches this Agreement, the non-breaching may terminate this Agreement or, if\napplicable, a particular Development Program, by written notice; provided, however, that the written notice clearly describes the nature of the\nalleged breach, the events and circumstances that gave rise to the alleged breach and a clear explanation of whether this Agreement, a\nparticular Development Program or both are being terminated. No termination under this Section 10.2 will be effective until the non-breaching\nParty provides written notice of such breach to the other Party and such Party fails to cure such breach within thirty (30) days of such notice.\nAny termination shall become effective at the expiration of such thirty (30) day notice period. Notice of termination for cause will be in\nwriting and sent by certified mail, postage prepaid, return receipt requested. If a particular Development Program is terminated without the\ntermination of the entire Agreement, this Agreement will be terminated only with respect to such Development Program and will remain in\neffect with respect to the then outstanding Development Programs in accordance with their terms and or any other Development Programs the\nParties decide to pursue under this Agreement.\n10.3 Termination for Change of Control. If a Party undergoes a Change of Control, unless such event has been consented to in writing by\nthe other Party under Section 12.2, the other Party may terminate this Agreement immediately upon written notice.\n10.4 Effect of Termination.\nConfidential 16\n(a) Upon any termination or expiration of this Agreement, all rights and obligations granted to either Party under this Agreement will\nimmediately terminate, except as provided in Section 10.5 and that Sections 8 and 9 will survive in accordance with their terms. Upon any\ntermination or expiration of this Agreement, each Party will cease all use of and return the other Party’s property and Confidential Information,\nexcept for one archival copy or to the extent such property or Confidential Information is needed to be retained for a Party to exercise any\nsurviving rights provided under Section 10.5.\n(b) There may be one or more Development Programs pending at the time when notice of termination of this Agreement is first given. As\nof the date of receipt of that notice, each Party may decide to discontinue disclosing Confidential Information relating to its Independent\nTechnology to the other Party for the pending Development Programs; however, except in the case of a termination the Development Program\nin question or the entire Agreement, the Parties agree to work together diligently to bring each pending Development Program to a logical and\norderly close. Among other things, the Parties shall meet promptly thereafter in order to (a) prioritize work during the remaining term of each\nDevelopment Project, and (b) agree upon a reasonable time frame for the Parties to diligently complete such Development Programs on which\nthe Parties are close to completion. The Parties agree that their cooperative efforts from that time forward shall be focused to accomplish the\nagreed work, even if the work extends for up to one hundred and eighty (180) days beyond the noticed termination date.\n10.5 Survival. Nothing herein shall be construed to release any liability or obligation of either Party to the other for acts or omissions\nprior to the termination or expiration of this Agreement. Without limiting the foregoing:\n(a) If a Party receiving commercial licenses under Sections 7.5 through 7.8 (“Licensee Party”) terminates under Section 10.2 for the\nuncured material breach of a Party granting licenses under those Sections (“Licensor Party), the licenses and rights granted under those\nSections will survive any such termination in accordance with their terms, provided that the Licensee Party continues to pay Royalty\nObligations for such licenses. Any such licenses and rights shall survive for a period that is co-extensive with the last to expire Intellectual\nProperty Right subject to the license in question.\n(b) If Licensor Party terminates under Section 10.2 for Licensee Party’s uncured material breach, then:\n(i) The commercial licenses granted under Sections 7.5 through 7.8 will terminate and be of no further force and effect except that\nLicensee Party may continue to exercise such licenses solely as necessary to (A) continue to sell any inventory of products related to\nsuch licenses, and to manufacture and sell all products related to such licenses that are then in the process of being manufactured, for a\nperiod of no longer than six (6) months after the effective date of termination, and (B) to meet Licensee Party’s then-existing (as of the\neffective date of termination) contractual obligations to third parties, for a period of no longer than [twelve (12)] months after the\neffective date of termination, subject to payment of applicable Royalty Obligations for such licenses; and\n(ii) Upon the end of the applicable period set forth in Section 11.5(b)(i), each sublicense previously granted by Licensee Party or\nany Affiliate of such Licensee Party under this Agreement shall remain in effect and shall become a direct license of such rights by\nLicensor Party to such sublicensee, subject to such sublicensee agreeing in\nConfidential 17\nwriting to assume Licensee Party’s terms, conditions and obligations to Licensor Party under this Agreement as they pertain to the\nsublicensed rights.\n(c) Termination or expiration of this Agreement will not relieve either Party from its payment obligations hereunder for any charges,\npayments or expenses due to the other Party that accrued prior to the termination or expiration date, and such amounts (if not otherwise due on\nan earlier date or disputed in good faith) shall be immediately due and payable on the termination or expiration date.\n11. Miscellaneous.\n11.1 Notices. All notices and requests under this Agreement (i) shall be in writing, (ii) may be delivered personally, sent by commercial\ncourier with tracking capabilities - costs prepaid, mailed by certified or registered mail—return receipt requested with postage prepaid, at the\noption of the sending Party, and (iii) shall be sent to and shall be effective on the date of recorded delivery at the receiving Party’s address for\nnotice. The initial address for notice is set forth below. Any subsequent address for notice shall be changed by notice given pursuant to this\nSection 11.1.\nIf to MSC:\nChief Technology Officer\nMomentive Specialty Chemicals Inc.\n180 East Broad Street\nColumbus, Ohio 43215\nwith a simultaneous copy to the General Counsel at the same address.\nIf to MPM:\nChief Technology Officer\nMomentive Performance Materials Inc.\n22 Corporate Woods Boulevard\nAlbany, New York 12211\nwith a simultaneous copy to the General Counsel at the same address.\n11.2 Assignment. Neither Party shall have the right to assign or transfer this Agreement or any right, obligation of performance, or\ninterest hereunder, whether voluntary or involuntary, without first receiving the other Party’s prior written consent. Any attempt at assigning or\ntransferring this Agreement in violation of this Section 11.2 shall be invalid and void and shall have no effect.\n11.3 Waivers. No waiver by a Party of any condition or breach of any provision of this Agreement will be effective unless in writing, and\nno waiver in any one or more instances will be deemed to be a further or continuing waiver of any such condition or breach in other instances\nor a waiver of any other condition or breach of any other provision.\n11.4 Counterparts. This Agreement may be executed simultaneously in identical counterparts, each of which will be deemed an original,\nbut all of which together will constitute one and the same instrument. A facsimile transmission of the executed signature page of this\nAgreement will constitute due and proper execution of this Agreement by the Party executing the signature page.\nConfidential 18\f11.5 Construction. The Section headings are for convenience only and will not be deemed part of this Agreement. The language of this\nAgreement will be construed according to its fair meaning. Any rule of construction resolving ambiguities against the drafting Party will not\napply in the interpretation of this Agreement. No specific representation, warranty or covenant contained in this Agreement will limit the\ngenerality or applicability of a more general representation, warranty or covenant.\n11.6 Independent Contractors. Each Party’s relationship with the other is that of an independent contractor, and nothing in this\nAgreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Neither Party will\nbe entitled to any of the benefits that the other may make available to its employees, including, but not limited to, group health or life\ninsurance, profit sharing or retirement benefits. Neither Party is authorized to make any representation, contract or commitment on behalf of\nthe other.\n11.7 Severability. If any provision of this Agreement is unenforceable or invalid under any applicable law or is so held by applicable\ncourt decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will\nbe changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable\nlaw or applicable court decisions; provided, however that if the Parties are unable to so change the provision, then the affected Party may\nterminate this Agreement upon thirty (30) days notice.\n11.8 Governing Law. This Agreement and any dispute under this Agreement will be governed by and construed under the laws of the\nState of New York without regard to any of its conflict of laws principles.\n11.9 Survival. Subject to section 10.5, any provisions of this Agreement shall continue in full force and effect after termination of this\nAgreement, which are provisions that by their nature or purpose are intended to survive the termination of this Agreement.,\n11.10 Entire Understanding. This Agreement and the attached exhibits set forth the entire agreement and understanding of the Parties in\nrespect to the transactions contemplated and supersedes all prior agreements, arrangements, representations, term sheets and understandings\nrelating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented only in a writing signed by\nrespective officers of the Parties. This Agreement is not intended to confer upon any person, other than the signing Parties, any rights or\nremedies.\nConfidential 19\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nMPM: MSC:\nMOMENTIVE PERFORMANCE MATERIALS INC. MOMENTIVE SPECIALTY CHEMICALS INC.\nBy: Authorized Person By: Authorized Person\nPrint Name: Print Name:\nTitle: Title:\nDate: March 17, 2011 Date: March 17, 2011\nConfidential 20\nExhibit A\n(MODEL) DEVELOPMENT PROGRAM FORM\nThis Development Program Form describes the research program to be conducted by the Parties, and is governed by, is an attachment to and is,\nupon execution by the Parties, incorporated by reference into the Master Confidentiality and Joint Development Agreement by and between\nMomentive Specialty Chemicals Inc. (“MSC”) and Momentive Performance Materials Inc. (“MPM”) with an Effective Date of October 1, 2010 (the\n“Agreement.”) All the terms used in this Development Program Form shall retain the same meaning as defined in the Agreement and such\ndefinitions are incorporated herein by reference. In the event of any conflict between the provisions of the Agreement and of this Development\nProgram Form, the terms of the Agreement shall prevail. The terms and conditions of this Development Program Form are applicable solely to the\nresearch and development program described herein and in no way affect or alter the terms of any other Development Program Forms incorporated\ninto the Agreement prior to or after the Effective Date of this Development Program Form. This Development Program Form shall be effective as of\nthe date of the last signature below.\n1.  Scope:\nDate of Program Commencement:\nContent and Timeline of Project:\n2\n3\n4.  Business Units Involved in Program:\n5 Roles and Responsibilities:\n6 Key Contact Persons:\n7 Protocols for:\nA. Experimental Plans\nB. Data and Information Exchange\nC. Reporting and Periodic Progress Reports\n6.  Deliverables:\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nConfidential 21\nMPM: MSC:\nBy: By:\nPrint Name: Print Name:\nTitle: Title:\nDate: Date:\nConfidential 22	EX-10.2 3 dex102.htm MASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nExhibit 10.2\nMASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nThis Master Confidentiality and Joint Development Agreement ("Agreement") is by and between Momentive Specialty Chemicals Inc., with\na\nprincipal place of business at 180 East Broad Street, Columbus, Ohio 43215 ("MSC"), and Momentive Performance Materials Inc., with a principal\nplace of business at 22 Corporate Woods Boulevard, Albany, NY 12211 ("MPM"). The effective date of this Agreement is October 1, 2010\n("Effective Date").\nRECITALS\nWHEREAS, MSC makes and sells epoxy, phenolic and coating products and materials, as well as forest products, and has developed, and\ncontinues to develop, proprietary technology and intellectual property relating to such products and materials, the manufacture of such products and\nmaterials and the use of such products and materials in a wide variety of end-use applications;\nWHEREAS, MPM makes and sells silicones, quartz and ceramics products and materials, and has developed, and continues to develop,\nproprietary technology and intellectual property relating to such products and materials, the manufacture of such products and materials and the use\nof such products and materials in a wide variety of end-use applications;\nWHEREAS, MSC and MPM are Affiliates, although separate legal entities, and are both commonly indirectly owned by Momentive\nPerformance Materials Holdings LLC;\nWHEREAS, MSC and MPM mutually desire to cooperate with each other from time to time in the exchange of confidential information and\nproprietary technology and/or in the joint development of certain technology and/or products as the Parties mutually deem appropriate throughout\nthe life of this Agreement; and\nWHEREAS, in the event that new technology, products, materials and the like, including any resulting intellectual property related thereto, are\ndeveloped under this Agreement, MSC and MPM desire to set forth their respective rights regarding the ownership and use of such technology,\nproducts, materials and associated intellectual property.\nNOW, THEREFORE, in consideration of the material covenants and promises set forth herein the receipt and sufficiency of which is hereby\nagreed and acknowledged, the Parties agree as follows:\n1. Definitions.\n1.1 "Affiliate" means any entity that directly or indirectly owns, is owned by, or is under the common ownership with a Party, at any time\nduring the term of this Agreement. "Owns", "owned" or "ownership" means direct or indirect possession of more than fifty percent (50%) of\nthe votes of holders of a corporation's voting securities, or a comparable equity or other ownership interest in any other type of entity; provided\nthat for the purposes of this Agreement, MPM and its Affiliates shall not constitute Affiliates of MSC or its Affiliates, and vice-versa.\nConfidential\n1\n1.2 "Change of Control" means the occurrence of any of the following events: (a) any sale, lease, exchange or other transfer (in one\ntransaction or a series of related transactions) of all or substantially all of the assets of either of MSC or MPM to any entity or group, together\nwith any Affiliates thereof; (b) consummation of a sale of capital stock, merger, consolidation, reorganization or other transaction (or series of\nrelated transactions) involving either of MSC or MPM following which the direct or indirect beneficial owners of the applicable Party (or any\nof them) as of the date hereof do not hold, collectively, capital stock or other securities of the surviving corporation (i) with voting power to\nelect a majority of the surviving entity's board of directors or equivalent, or (ii) representing a beneficial interest in the surviving entity equal\nto at least a majority thereof or (c) any other transaction the result of which is that MPM shall no longer constitute an Affiliate of MSC. For\npurposes of this definition, no effect shall be given to the proviso to the definition of "Affiliate" set forth in Section 1.1.\n1.3 "Confidential Information" means any technical or commercial information or data, trade secrets, know-how, etc., of either Party\nor\ntheir respective Affiliates whether or not marked or stamped as confidential, including without limitation, Technology, Invention(s),\nIntellectual Property Rights, Independent Technology and any samples of products, materials or formulations including, without limitation, the\nchemical identity and any properties or specifications related to the foregoing. Any Development Program Technology, MPM Work Product,\nMSC Work Product, Hybrid Work Product, Prior End-Use Work Product and/or Shared Development Program Technology shall be\nConfidential Information of the Party that owns the subject matter under the terms set forth in this Agreement.\n1.4 "Development Program" means research and development programs that are mutually agreed upon from time to time by the Parties\nin accordance with the terms of this Agreement and described in a Development Program Form attached as Exhibit A to this Agreement.\n1.5 "Development Program Form" means the form described in Section 3.\n1.6 "Development Program Technology" means Technology that is not Independent Technology and that is conceived by at least one\nrepresentative of a Party or a Party's Affiliates, either solely or jointly, after the Effective Date and before any expiration and/or termination of\nthis Agreement and directly attributed to work performed under any Development Program under this Agreement.\n1.7 "Effective Date" means the date first written above.\n1.8 "Hybrid Product" shall have the meaning set forth in Section 7.2 (c).\n1.9 "Hybrid Work Product" shall have the meaning set forth in Section 7.2 (c).\n1.10 "Independent Technology" means Technology and associated Intellectual Property Rights owned solely by a Party, which is\nconceived prior to the Effective Date and/or at any time outside of the course of a Development Program, provided, where such conception\noccurred after the Effective Date, the owning Party made no use of or reliance upon the other Party's Technology for such conception or any\nsubsequent reduction to practice.\n1.11 "Intellectual Property Rights" means all worldwide utility and design patents, patent applications, and rights associated therewith,\nincluding any divisionals, continuations, continuations in part, reissues and reexaminations thereof, regardless of whether\nConfidential\n2\nsuch rights arise under the law of the United States or any other state, country or jurisdiction, as well as all know-how, trade secrets,\nproprietary information, technical data and the like.\n1.12 "Invention" means any invention, improvement, know-how, development, or discovery whether patentable or not.\n1.13 "MPM Materials" means: (i) chemical substances whether molecular or formulated and whether polymeric, monomeric or\nelemental which are based on the element silicon; (ii) sealants and adhesives, and adhesion promoters; (iii) catalytic materials\nincluding,\nwithout limitation, those based on the elements or species tin, amines, nickel, platinum, titanium and palladium; (iv) urethane additives and\nformulations containing the same; (v) additives for personal care products and resulting formulations; (vi) coatings; (vii) cross-linking agents\nand coupling agents; (viii) hardcoat formulations; (viii) ceramic powders for industrial use in the manufacture of a wide variety of goods;\n(ix) thermal management products for use in heat transfer applications; (x) ceramic parts and coated articles, electric resistance heating\nelements, and related components for use in various industrial processes; (xi) fabricated articles made from fused silica, fused quartz or glass\nfor use in the semiconductor, electronics, metallurgical, thin film and other industries; (xii) ceramic heaters and heater assemblies; (xii) metal\ncarbide coatings; and (xiii) synthetic silicone dioxide and modifications thereof.\n1.14 "MPM Work Product" shall have the meaning set forth in Section 7.2 (a).\n1.15 "MSC Materials" means (i) epoxy resins curing agents and modifiers for use across a wide range of applications including coatings,\nlaminates, composites and adhesives; (ii) adhesives for use in engineered wood products; (iii) formaldehyde and derivatives including\nhexamine, methaform and urea concentrates; (iv) mortar chemicals including liquid latexes, redispersible latex powders and other additives;\n(v) moulding compounds including epoxies, phenolics, melamine-phenolics and unsaturated polyesters; (vi) resin coated proppants;\n(vii) phenolic and amino resins including phenolic novolac, resole, powder resin solutions and water-based solutions; (viii) tackifier resins and\npine chemicals for use in hot melt adhesives, road marking applications and pressure-sensitive and non-pressure-sensitive adhesives;\n(ix) textile and non-woven resins; (x) UV curable resins for fiber optic applications; (xi) VERSATIC acid and derivatives; (xii) wax products\nand additives for use in coatings, composites and gypsum panels; and (xiii) wood composite binders for use in plywood and laminated veneer\nlumber, particleboard, MDF and oriented strand board.\n1.16 "MSC Work Product" shall have the meaning set forth in Section 7.2 (b).\n1.17 "Party" or "Parties" means, subject to Section 2, either MSC or MPM individually, or both MSC and MPM, as the text would\nwarrant.\n1.18 "Person" means any individual, corporation, partnership, association, trust, governmental authority or other entity or organization.\n1.20 "Previously Commercialized Party" shall have the meaning set forth in Section 1.21.\n1.21 "Prior End-Use Work Product" means (i) Hybrid Product or (ii) the use of any products, materials, formulations and the like that are\nmade from or include any Hybrid Product, in each case that can be used in an end-use application that has been commercially exploited by one\nParty and/or a Party's Affiliate (but not both of the Parties including their\nConfidential\n3\nrespective Affiliates) prior to the Effective Date. The Party (including their respective Affiliates) who has previously commercialized such\nend-use application will be referred to as "Previously Commercialized Party".\n1.22 "Purpose" shall have the meaning set forth in Section 2.\n1.23 "Royalty Obligations" means payment obligations, whether as up-front payments, royalties, license maintenance fees, milestone\npayments or any other consideration, for any royalty-bearing license granted in this Agreement that has been reasonably negotiated by the\nParties through arm's-length good faith negotiation and agreement through the Steering Committee as provided in Section 7.4. In a scenario\nwhere the Parties have agreed to jointly pursue a commercial opportunity and the licensor Party has decided, in its sole discretion, that its\nparticipation in the joint opportunity will provide it with sufficient value, the licensor Party may decide, in its sole discretion, that a reasonable\nroyalty is one dollar or other nominal amount. The Royalty Obligations may be agreed upon as part of a Development Program Form, an\namendment to this Agreement or any other writing executed between the Parties.\n1.24 "Shared Development Program Technology" means Development Program Technology that (i) did not evolve into MPM Work\nProduct or MSC Work Product, (ii) is not Prior End-Use Work Product or (iii) does not meet the criteria set forth in Section 7.2(c)(i) through\n(v).\n1.25 "Steering Committee" means the committee described in Section 6.2.\n1.26 "Technology" means all tangible or intangible know-how, knowledge, concepts, procedures, schematics, trade secrets, technical\ninformation and data, ideas, processes, inventions, technology, discoveries, improvements, methods, compositions, formulae, techniques, test\nresults, devices, designs, and/or manufacturing specifications and procedures, strategic business information, financial information, and any\ninformation regarding sources and prices for raw materials, subassemblies, parts and manufacturing services.\n2. Agreement Subject Matter. It is expected that the Parties will be exchanging Confidential Information with each other: (i) during their\nmutual evaluation of potential opportunities to collaborate with each other in the commercial exploitation of their respective products and\ntechnologies, (ii) during any cooperative research and development of newly developed products and technologies, and (iii) during the commercial\nphase of any cooperative exploitation of a Party's products and/or technologies. In addition, it is expected that the Parties will also exchange\nConfidential Information during the planning for and delivery of services pursuant to that certain Shared Services Agreement, effective October 1,\n2010, subscribed to by, among other parties, MPM and Hexion Specialty Chemicals Inc. (predecessor company to MSC). Accordingly, this\nAgreement sets forth the terms and conditions for the disclosure, receipt and use of the other Party's Confidential Information and also sets forth\nthe\nterms and conditions for any cooperative development activities that the Parties may mutually decide to pursue. All of the activities and exchanges\nof Confidential Information described in this Section 2 shall be referred to as the "Purpose." For the purpose of clarity, each Party will be engaging\nin activities to achieve the Purpose either by itself or with the assistance of, or through, one or more of its Affiliates. Therefore, the term "Party" (or\n"Parties") or MPM or MSC in this Agreement shall mean the applicable Party and its respective Affiliates, as the context requires. As an exception,\nthe foregoing shall not apply to Section 7.2 since it is intended that only MPM or MSC shall become owners of the subject matter, materials and/or\nproducts contemplated therein.\nConfidential\n4\n3. Development Program. During the life of this Agreement, it is anticipated that the Parties will meet from time to time to explore\nopportunities to collaborate with each other under a Development Program to develop new products and/or technology that could potentially benefit\nthe Parties. If, as a result of these meetings, the Parties mutually agree to pursue a Development Program, the Parties will work in cooperation,\nthrough the Steering Committee or as otherwise agreed by the Parties, to define goals and objectives of such Program and, thereafter, the scope of\nwork, milestones and timelines of the Development Program. The Parties shall also define the roles and responsibilities of each Party, and nominate\nprogram leaders from each of their respective organizations, as further described in Section 6, who will work with each other to oversee and manage\nthe establishment and implementation of the Development Program and jointly develop protocols for the exchange of experimental plans, technical\nprogram data and reporting periodic progress reviews. All of the foregoing activities, etc. will be described in a separate written Development\nProgram Form, substantially in the form attached hereto as Exhibit A (Development Program Form). Each Development Program Form shall be\nsigned by a duly authorized representative of each Party and maintained by the Parties in a separate database and/or in the file where this Agreement\nis maintained. Each Party agrees to regularly share data and information generated as a result of each Development Program undertaken hereunder,\nand to promptly notify the other Party of any new Development Program Technology, including without limit, any Invention conceived or reduced\nto\npractice in the course of a Development Program. For the purpose of clarity, in the event that any joint development activity or initiative is carried\nout by the Parties and, in so doing, the Parties fail to complete and execute a Development Program Form, such activity will nevertheless be subject\nto all of the terms and conditions of this Agreement and such failure will not relieve a Party or the Parties from complying with this Agreement\n4. Information Sharing.\n4.1 In order to coordinate and direct their respective research and development activities under any Development Program, the Parties,\nthrough their respective program leaders, will meet on a monthly basis, or as otherwise deemed necessary by the Parties. During these monthly\nmeetings, the Parties will review the activities undertaken in connection with any ongoing Development Programs, report on the progress\ntowards achieving any established goals and objectives and/or any perceived challenges or impediments to achieving such objectives, discuss\nthe status of the scope of work and any associated milestones and timelines and make adjustments to the scope of work, milestones and/or\ntimelines as deemed necessary or beneficial. It is expected that these monthly meetings will take place by telephone unless the Parties mutually\nagree otherwise.\n4.2 The Parties shall jointly prepare a written report every three (3) months during the life of any Development Program that outlines all\nresearch and development activities that have transpired, the current status of such activities, any relevant conclusions, future activities under\ncontemplation, and any proposed changes to the R & D scope, milestones and/or timelines. The report shall also include a clear explanation\nand documentation of any inventions, discoveries, improvements, etc. that have been made, as well as any conception records generated in the\nmanner set forth in Section 7.9 (d).\n5. Financial Terms. Unless otherwise decided by the Steering Committee and subsequently memorialized in a writing signed by the Parties'\nrespective duly authorized representatives, the Parties shall bear their respective costs relating to performance under this Agreement without any\nfinancial obligation to the other and neither Party shall be entitled to any reimbursement from the other Party for costs it incurs in support of any\nDevelopment Program.\nConfidential\n5\n6. Management of Joint Development Activities/Steering Committee.\n6.1 Both MPM and MSC would each appoint one (1) individual from their respective organizations to act as a Program Leader for each\nDevelopment Program that is pursued under this Agreement. The Program Leaders so appointed would be responsible for: (i) establishing an R\n& D team (composed of personnel having the requisite level of experience to properly and efficiently implement the Development Program);\n(ii)\ndeveloping an R & D plan pursuant to the general guidelines set forth in Sections 2 and 3; (iii) overseeing the day-to-day\nmanagement\nand\nimplementation of the Development Program on behalf of MPM and MSC; and (iv) coordinating the exchange of routine Development\nProgram-related communications between MPM and MSC. The Program Leaders would be further responsible for establishing a patent\ndevelopment strategy including, among other things, patent procurement targets, to protect all Development Program Technology. In addition,\nthe Program Leaders will prepare an outline detailing proposed ownership of patents and patent applications, consistent with the ownership\nprovisions of Section 7.2, that are likely to evolve from the Development Program on or before six (6) months from the date of commencement\nof the Development Program in question. This outline will, in turn, be reviewed by the Steering Committee and adopted or modified, as the\nSteering Committee deems appropriate. As a Development Program approaches its latter stages and the Parties have established an\nunderstanding of the potential value associated with the Development Program Technology and other work product resulting from a\nDevelopment Program, the Program Leaders will prepare a proposed business model or value-sharing proposition for consideration by the\nSteering Committee. In the event that the Parties decide, by mutual agreement or Steering Committee determination that a particular\nDevelopment Program would be executed and managed more efficiently by one of the Program Leaders due to his or her prior experience in\nthe targeted subject matter area, the Parties, or the Steering Committee, may nominate one of the Program Leaders to serve as the managing\nProgram Leader for that particular Development Program.\n6.2 Both MPM and MSC would each appoint three (3) individuals from their respective organizations to form a Steering Committee; one\n(1) individual should be a senior-level representative selected from the marketing/commercial group, one (1) individual should be a senior-\nlevel representative selected from the technology group and the third individual can be selected as a Party deems appropriate. In general, the\nfunctions of the Steering Committee would be to provide strategic direction to the Program Leaders and make informed decisions regarding\nthe\ndirection, management and implementation of the Development Program(s). Each Party, in its sole discretion, would be permitted to\nchange its own Steering Committee members by providing written notice to the other Party, along with an explanation of why the change is\nbeing made.\n6.3 The Steering Committee would meet in person at least two (2) times per year or as otherwise deemed necessary. The location of\nmeetings would alternate between MPM and MSC host facilities. Alternatively, the Steering Committee, at its discretion, could conduct these\nmeeting via telephone. Steering Committee decisions would become effective with a unanimous vote. Each member of the Steering Committee\nwould have one (1) vote.\n6.4 In addition to addressing the matters set forth in Sections 3, 5, 6.1, 6.2 and 7.2 (c), or by way of further clarifying such matters, the\nSteering Committee would consider and reach decisions on the following matters:\nConfidential\n6\n(a) Whether to accept, reject or modify R & D plans or Development Programs proposed by the Program Leaders;\n(b) Whether to continue or modify ongoing Development Programs;\n(c) Approve or reject key milestone events for Development Programs, as established by the Program Leaders, including anticipated\ndeliverables and dates of completion and revise and/or add secondary milestones as necessary;\n(d) Whether to procure resources that are needed from time to time in the execution of any Development Program;\n(e) Discuss and decide upon commercialization options and strategies for exploiting any technologies, products, systems, materials and\nthe like that result from work performed under a Development Program and provide specific guidance and direction to MPM and MSC for\nexecuting any established commercialization strategies; and\n(f) Make reasonable determination of Royalty Obligations as contemplated under this Agreement.;\n7. Intellectual Property. Ownership, Commercial Principles and Licenses.\n7.1 Independent Technology.. Each Party acknowledges and agrees that, as between the Parties, each Party is and shall remain for all\npurposes hereunder the sole and exclusive owner of all right, title and interest in and to its Independent Technology and all associated\nIntellectual Property Rights. Each Party acknowledges that it acquires no rights under this Agreement to the other Party's Independent\nTechnology or associated Intellectual Property Rights other than the limited licenses expressly granted in this Agreement.\n7.2 Ownership of Development Program Technology. and Related Intellectual Property. Rights. Unless otherwise agreed in writing, and\nsubject to Section 7.1, ownership of Development Program Technology and all Intellectual Property Rights derived therefrom shall be as\nfollows:\n(a) MPM. As between the Parties, MPM shall own all Development Program Technology relating to (i) MPM Materials, (ii) all know-\nhow and processes relating to the manufacture of MPM Materials, (iii) all analytical and/or quality control techniques used in the\nConfidential\n7\nevaluation of MPM Materials, (iv) all uses of any MPM Materials (without use of any MSC Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MPM Material (without the use or inclusion of\nany MSC Material). MPM shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed\npursuant to this Agreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be\nreferred to as "MPM Work Product." MSC hereby assigns to MPM the entire right, title and interest in and to the MPM Work Product,\nincluding without limit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or\napplicable to such MPM Work Product.\n(b) MSC. As between the Parties, MSC shall own all Development Program Technology relating to (1) MSC Materials, (ii) all know-how\nand processes relating to the manufacture of MSC Materials, (iii) all analytical and/or quality control techniques used in the evaluation of MSC\nMaterials, (iv) all uses of any MSC Materials (without the use or inclusion of any MPM Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MSC Material (does not include an MPM\nMaterial) MSC shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed pursuant to this\nAgreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be referred to as\n"MSC\nWork Product." MPM hereby assigns to MSC the entire right, title and interest in and to the MSC Work Product, including without\nlimit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or applicable to\nsuch MPM Work Product.\n(c) Ownership Requiring A Steering Committee Decision. Subject to Section 7.2(e), the Steering Committee shall decide, on a case-by-\ncase basis, which Party owns, as between the Parties, Development Program Technology relating to: (i) any product, material, composition of\nmatter, system or the like that includes an MPM Material and an MSC Material ("Hybrid Product"), (ii) all know-how, processes, etc., relating\nto the manufacture of any Hybrid Product, (iii) all analytical and/or quality control techniques used in the evaluation of any Hybrid Product,\n(iv) any and all end-use applications of any Hybrid Product, provided that such end-use applications have never been commercially exploited\nby either of the Parties, or have been commercially exploited by both of the Parties, prior to the Effective Date, (v) any and all end-use\napplications of products, materials, formulations and the like that are made from or include any Hybrid Product, provided that such end-use\napplications have never been commercially exploited by either of the Parties, or have been commercially exploited by both of the Parties, prior\nto the Effective Date and (vi) Shared Development Program Technology. All of the foregoing in (i) through (vi) shall be referred to as "Hybrid\nWork Product." An owner of any Hybrid Work Product as decided by the Steering Committee shall also own all of the Intellectual Property\nRights in the Development Program Technology derived from that Hybrid Work Product and the non-owning Party hereby assigns to the\nowning Party the entire right, title and interest in and to that Hybrid Work Product, including without limit, any Inventions and Intellectual\nProperty Rights derived from the Development Program Technology associated with or applicable to such Hybrid Work Product.\n(d) Joint Ownership As Default Decision. In the event that the Steering Committee is unable to reach a decision regarding the ownership\nof\nDevelopment Program Technology and related Intellectual Property Rights resulting from Hybrid Work Product as contemplated in\nSection 7.2 (c) at the Steering Committee meeting that the particular ownership issue is presented for consideration, or within thirty (30) days\nthereafter should the Steering\nConfidential\n8\nCommittee decide that it needs more time to reach a definitive decision, then the Parties shall jointly own that Hybrid Work Product and such\nrelated Intellectual Property Rights until a definitive decision is reached, provided that, during any period of joint ownership, neither Party will\n(i) exercise such joint ownership in a way that is inconsistent with the intent and the terms and conditions of this Agreement, (ii) assign or\ntransfer title to any such work product or Intellectual Property Rights without the other Party's express prior written consent, or (iii) license or\notherwise provide such Hybrid Work Product or Intellectual Property Rights to any third party, including without limitation any competitor of\nthe other Party or any infringer or potential infringer which the other Party is pursuing or plans to pursue. In the event that a definitive decision\nis\nreached with respect to the ownership of the subject Hybrid Work Product and related Intellectual Property Rights derived from\nDevelopment Program Technology, the owning party will own such Hybrid Work Product and such related Intellectual Property Rights under\nthe terms and conditions of this Agreement. In the event that a definitive decision assigning ownership of any Hybrid Work Product and related\nIntellectual Property Rights derived from Development Program Technology to one of the Parties is never reached, then the Parties will\ncontinue to jointly own such Hybrid Work Product and related Intellectual Property Rights derived from Development Program Technology\nsubject to the terms of this Section 7.2 (d).\n(e) Other Ownership Provisions. As between the Parties, the Previously Commercialized Party shall own all Development Program\nTechnology relating to the Prior End-Use Work Product in the end-use application that it has commercialized prior to the Effective Date. An\nowner of Prior End-Use Work Product shall also own all of the Intellectual Property Rights in the Development Program Technology derived\nfrom that Prior End-Use Work Product and the non-owning Party hereby assigns to the owning Party the entire right, title and interest in and to\nthat Prior End-Use Work Product, including without limit, any Inventions and Intellectual Property Rights in the Development Program\nTechnology associated with or applicable to such Prior End-Use Work Product.\n7.3 Research Licenses.\n(a) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIndependent Technology of the owner Party, solely to permit the other Party's (by itself and/or through its Affiliates') performance\nof\nresearch\nand development activities in connection with the execution and implementation of any Development Program under this Agreement and/or to\npursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development initiatives outside\nthe scope of this Agreement. In the event that a Party's and/or its Affiliates' ("Licensor Party") Independent Technology is used under the\nlicense granted in this Section 7.3 (a) by the other Party and/or its Affiliates ("Licensee Party") to pursue independent research and\ndevelopment initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention and/or\nTechnology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license under\nsuch Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology.\n(b) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIntellectual Property Rights derived from the Development Program Technology directly related to the MPM Work Product, MSC Work\nProduct, Hybrid Work Product and Prior End-Use Work\nConfidential\n9\nProduct (as the case may be) of the owner Party, solely to permit the other Party's performance (by itself and/or through its Affiliates) of\nresearch and development activities in connection with the execution and implementation of any Development Program under this Agreement\nand/or to pursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development\ninitiatives outside the scope of this Agreement. In the event that a Party's and/or its Affiliates' ("Licensor Party") Independent Technology is\nused under the license granted in this Section 7.3 (b) by the other Party and/or its Affiliate ("Licensee Party") to pursue independent research\nand development initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention\nand/or Technology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license\nunder such Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology\n7.4 Commercial Principles.\nEach Party agrees to use commercially reasonable efforts to develop, implement and follow collaborative strategies for the commercialization\nof any MSC Material, MPM Material and/or Hybrid Product. The purpose of the foregoing obligation is to provide each Party with an equitable and\nbalanced opportunity to derive value and monetary return from opportunities that might result from any work or collaboration done under this\nAgreement. One component of any evaluation of a collaborative commercial strategy will include an analysis of the value proposition associated\nwith the joint pursuit of a commercial opportunity by the Parties. One such consideration is the Royalty Obligations that would be associated with\nthe commercial licenses granted under Sections 7.5 through 7.8, which will be negotiated and agreed to by the respective representatives of the\nParties through the Steering Committe in arm's-length good faith negotiations. Each Party acknowledges and agrees that the agreement on the\nRoyalty Obligations is a condition precedent to the effectiveness of the commercial licenses granted under Sections 7.5 through 7.8 and the licensee\nParty will pay the Royalty Obligations during the term of such licenses. It is expected that the Steering Committee members will play a primary role\nin\nfulfilling the obligations under this Section 7.4 on behalf of their respective organizations. If, after using commercially reasonable efforts to satisfy\nthese obligations, the Parties decide that it is not commercially feasible or desirable to pursue a commercial opportunity jointly, each Party shall be\npermitted to separately pursue the opportunity. For the purpose of clarity, the Parties do not intend for anything contained in this Section 7.4 to create\nany partnership, agency, joint venture or the like between the Parties. Indeed, the Parties intend, at all times, to maintain their separate legal identities\nas they work together under this Agreement.\n7.5 MPM Licenses To MSC.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MPM Work Product to make, have made, use,\nsell, offer to sell and import MSC Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.5 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.5. This license does not grant MSC any sublicense rights and does not include any license to MPM's Intellectual\nConfidential\n10\nProperty Rights that relate to MPM's Independent Technology. MPM agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MSC's Materials and/or Hybrid Products by a customer who purchases MSC\nMaterials and/or Hybrid Products from MSC.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MSC shall not actually have any licensed rights under this Section 7.5 (b) until the applicable Royalty\nObligations have been agreed to by the Parties as provided in Section 7.4. This license also includes a right for MSC to sublicense the licensed\nright of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MSC Materials and/or\nHybrid Products, provided that this license shall not become effective and MSC shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MPM agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.5 (c) based on a use of MSC's Materials and/or\nHybrid Products by a customer who purchases MSC Materials and/or Hybrid Products from MSC.\n7.6 MSC Licenses To MPM.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MSC Work Product to make, have made, use,\nsell, offer to sell and import MPM Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.6 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.4. This license does not grant MPM any sublicense rights and does not include any license to MSC's Intellectual\nProperty Rights that relate to MSC's Independent Technology. MSC agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MPM's Materials and/or Hybrid Products by a customer who purchases MPM\nMaterials and/or Hybrid Products from MPM.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MPM shall not actually have any licensed rights under\nConfidential\n11\nthis Section 7.6 (b) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license also\nincludes a right for MPM to sublicense the licensed right of use to its customers.\n(c)\nSubject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MPM Materials and/or\nHybrid Products, provided that this license shall not become effective and MPM shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MSC agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.6 (c) based on a use of MPM's Materials\nand/or Hybrid Products by a customer who purchases MPM Materials and/or Hybrid Products from MPM.\n7.7 Cross Licenses\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by the licensee Party\nunder this Section, each Party agrees to grant and does hereby grant to the other Party and its Affiliates, on behalf of itself and its Affiliates, a\nnonexclusive, royalty-bearing, worldwide, revocable license under its Intellectual Property Rights derived from, and only from, Hybrid Work\nProduct that it owns under this Agreement to make, have made, use, sell, offer to sell and import Hybrid Products, provided that this license\nshall not become effective and neither licensee Party shall actually have any licensed rights under this Section 7.7(a) until the applicable\nRoyalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license does not grant either Party any sublicense\nrights and does not include any license to either Party's Intellectual Property Rights that relate to a granting Party's Independent Technology.\nEach Party agrees not to enforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.7 (a) based on a use\nof Hybrid products by a customer who purchases Hybrid Products from the licensee Party.\n7.8 Other Additional License. While the Parties have endeavored to include all licensing arrangements in this Agreement that are deemed\nnecessary or desirable to allow each Party to conduct the activities contemplated in this Agreement or as a result of this Agreement, the Parties\nrecognize that there may be a need to subsequently establish other licensing arrangements between the Parties. In the event that a Party decides\nthat it is necessary or desirable to enter into one or more licensing arrangements not included in this Agreement, each Party agrees to enter into\ngood faith negotiations with each other for such licenses. Any additional licenses shall only become effective by way of a written amendment\nto this Agreement signed by a duly authorized representative of each Party.\n7.9 Patent Procurement Procedures.\n(a) An owner of the MPM Work Product, MSC Work Product, Hybrid Work Product and Prior End-Use Work Product, as set forth\nabove, shall have the right, in its own discretion, to file patent applications in the United States and in any country of the world outside the\nUnited States in its own name. Each Party, at the request of the other Party, shall exercise reasonable efforts to support the filing of patent\napplications by the other Party in their respective technical fields of ownership. Such efforts shall include support by inventors and\nConfidential\n12\nexecution of all legal documents (applications, assignments and declarations). All costs of preparing, filing and prosecuting patent applications\nowned by a Party, and of maintaining such Patents, shall be borne by said Party. In the event a Party decides against filing a patent application\ndirected to any Development Program Technology that it owns under this Agreement and, additionally, the owning Party does not wish to\nmaintain such Development Program Technology as a trade secret, the other non-owning Party shall have the right to take ownership of such\nDevelopment Program Technology for no additional consideration, and agrees that it shall bear all costs associated with the procurement and\nmaintenance of any patents. Analogously, if the owner of a patent directed to Development Program Technology resulting from this Agreement\nis no longer interested in maintaining such patent, the owner will provide the other Party with reasonable advanced notice of its intent to allow\nthe patent to lapse to give the other Party the opportunity to pay the maintenance fees and assume ownership of the patent in question for no\nadditional consideration. Also, if a Party decides against filing a patent application directed to Development Program Technology in a\nparticular country or countries that are of interest to the other Party, the owning Party will allow the other Party to effectuate the filings in those\nother countries, at the other Party's expense, and the other Party will assume ownership of that patent application and any patent(s) issuing\ntherefrom without the need to pay any additional consideration. In the event that a transfer by one Party to the other Party occurs under this\nSection 7.9 (a), the transferor shall retain a royalty-free, worldwide, nonexclusive, irrevocable license under the transferred Development\nProgram Technology and/or Intellectual Property Rights in question.\n(b) In those instances where each Party will be filing a patent application that will disclose and/or claim subject matter that is related or\nsimilar to the subject matter presented in the other Party's patent application, the Parties agree to file their respective priority patent\napplications on the same day. In order to facilitate and execute this requirement, the Parties' patent counsel will coordinate and implement the\nappropriate actions.\n(c) The Parties agree that when filing patent applications directed to their respective areas of technical subject matter, they will not claim\nsubject matter owned by the other Party, without receiving the other Party's written consent.\n(d) A separate record of conception shall be prepared for each invention relating to Technology conceived under any Development\nProgram. Each conception record shall include a proper description of the conceived invention. The conception record shall also include a\ndescription of an operative method of making the invention (where appropriate), as well as a description of the utility of the invention. The\nconception record, including the foregoing descriptions, shall be read by one having a level of skill in the art in the technical field in question\nrequired to understand the substance of such record ("Corroborating Witness"). Finally, the conception record shall be signed and dated by the\nperson(s) who conceived the invention and by the Corroborating Witness. Subject to Section 8 (where appropriate), a copy of each conception\nrecord generated under this Agreement shall be provided to the other Party for review, along with the written reports contemplated in\nSection 4.2.\n(e) The Parties agree and acknowledge that this Agreement is and shall be treated as a "joint research agreement" within the meaning of\nTitle 35 U.S.C. 8103(c). The Parties agree to permit one another the right to disclose to the United States Patent and Trademark Office\n("USPTO") and other foreign patent prosecution offices, where appropriate or necessary, the existence and identifying information of patent\napplications that are filed by the other Party; and the existence of this Agreement.\nConfidential\n13\n(f) While either Party may rely upon Title 35 U.S.C. 8103(c) to overcome a prior art issue or to overcome a rejection imposed by the\nUSPTO, so that the Party disqualifies the other Party's patent or patent application as prior art, the Parties agree to use reasonable efforts to\ntraverse a rejection by the USPTO without resorting to Title 35 U.S.C. 103(c). Should a Party ultimately elect, at its sole option and\ndiscretion, to rely upon Title 35 U.S.C. 8103(c), the Parties shall cooperate in obtaining and filing any and all required papers, documents,\napprovals, consents and/or authorizations and including amending patent applications to identify the Parties as necessary to take advantage of\nTitle 35 U.S.C. 8103(c).\n(g) The Parties agree that, if a double patenting issue arises in either a reexamination proceeding, an issued patent, or in a patent\napplication that has been filed under this Agreement, the Parties shall use reasonable efforts to address the issue without filing a terminal\ndisclaimer. However, if a Party ultimately determines, at its sole option and discretion, that the best course of action for that Party is to file\na\nterminal disclaimer, the Parties agree to sign, and otherwise cooperate in the execution and filing, of a terminal disclaimer that complies with\n37 C.F.R. 81.321, and any other similar USPTO rule or regulation then in effect. The Parties recognize that filing such a terminal disclaimer\nprohibits the Parties from separately enforcing the U.S. patents that issue from the involved applications or the involved patents (hereinafter\ncollectively "Involved U.S. Patents"). Should issues of enforcement arise with respect to the Involved U.S. Patents, the Parties agree to\ndiscuss, in good faith, terms and conditions for jointly enforcing such Involved U.S. Patents.\n7.10 Further Acts and Assistance. The Parties agree to perform, during and after the term of this Agreement, all customary acts that are\nreasonably necessary or desirable to permit and assist the other in obtaining, perfecting and enforcing the full benefits, enjoyment, rights and\ntitle in the Intellectual Property assigned to the other Party under this Agreement. In the event that it becomes necessary to compensate any\nemployee of MSC or MPM who invented any Invention or Intellectual Property Rights, both MPM and MSC shall be obligated to compensate\nits own employees and shall have no obligation to compensate any of the other Party's employees.\n8. Confidential Information.\n8.1 Each Party will maintain in strict confidence all Confidential Information received from the other Party. Each Party agrees that it will\nnot use, disclose to any third Person or grant use of such Confidential Information except to the extent required to achieve the Purpose or as\notherwise authorized in advance by the other Party in writing. Each Party agrees to use at least the same standard of care as it uses to protect its\nown confidential information of a similar nature to ensure that its employees do not disclose or make any unauthorized use of such\nConfidentia Information, but in no case less than a reasonable standard of care. Each Party will disclose the other Party's Confidential\nInformation only to those of such Party's employees, and subject to the other Party's prior written approval, consultants and contractors who\nneed to know such information to assist the Party in achieving the Purpose. Each Party certifies that each such employee, consultant and\ncontractor will have agreed in writing, either as a condition to employment or in order to obtain the other Party's Confidential Information, to\nbe bound by confidentiality terms and conditions substantially similar to those terms and conditions applicable to each Party under this\nAgreement. Each Party guarantees that any of its employees, consultants, contractors, etc. that receive the other Party's Confidential\nInformation hereunder will abide by the confidentiality and limited use obligations undertaken by a receiving Party under this Agreement.\nEach Party will promptly\nConfidential\n14\nnotify the other Party upon discovery of any unauthorized use or disclosure of such Party's Confidential Information.\n8.2 The Parties agree that the existence of this Agreement and its terms will also be considered Confidential Information and agree not to\ndisclose the terms of this Agreement to a third Person without the prior written consent of the other Party, except (i) as required to enforce the\nterms of this Agreement, (ii) to financial institutions, accountants, advisors and counsel or (iii) as required by statute, regulation or the order of\na\ncourt\nof\ncompetent jurisdiction. A disclosure of any Confidential Information (i) in response to a valid order by a court or other governmental\nbody or (ii) as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other\npurposes; provided, however, that the Party making such disclosure will provide prompt prior written notice thereof to the owner Party to\nenable the owner Party to seek a protective order or otherwise prevent such disclosure.\n8.3 The foregoing obligations of confidentiality in this Section 8 will not apply to the extent that it can be established by the receiving\nParty by competent proof that such Confidential Information: (i) was generally available to the public or otherwise part of the public domain at\nthe time of disclosure to the receiving Party; (ii) became generally available to the public or otherwise part of the public domain after the\nowner Party disclosed such information to the receiving Party, other than through any act or omission of the receiving Party in breach of this\nSection 8, or (iii) was independently created or developed by such Party without reference to the Confidential Information of the other Party.\n8.4 A Party that receives product or material samples from the other Party shall not reverse engineer or analyze samples for chemical or\nstructural composition without the prior written consent of the disclosing Party. The results of all analyses of samples will be regarded as\nConfidential Information of the disclosing Party and will be treated by the receiving Party with the same strict confidentiality and restrictions\non limited-use and disclosure as the other Confidential Information referred to above. The receiving Party will provide the disclosing Party\nwith a written summary of these analyses.\n8.5 Publicity. Except as otherwise expressed in this Agreement, neither Party shall, without the prior written consent of the other, make\nany news release, public announcement, or other disclosure to any third Person or any public denial or public confirmation of the existence of\nthis Agreement, any disclosure of the Parties' working together or any other fact concerning, arising out of or in connection with this\nAgreement, the terms or provisions hereof or any subsequent arrangement(s) between the Parties concerning any activities hereunder. Each\nParty additionally agrees that the name of the other Party, and their respective employees' names, will not be used for purposes of advertising\nor publicity without the other Party's prior written consent.\n8.6 Publications Each Party additionally agrees that in order to safeguard patent rights, each Party, upon the request of the other, will\ndelay any public disclosure of any Invention generated in the course of a Development Program under this Agreement for a time period of up\nto three (3) months from the date of disclosure to the other Party in order to permit the filing of patent application(s). Each Party agrees to\ndisclose the filing of any patent application arising from this Agreement to the other, permit the other Party's review thereof, and to cooperate\nin the filing of any such patent applications desired by the disclosing Party as set forth in Section 7.9 hereof. Should any such patent\napplication of one Party contain any\nConfidential\n15\nConfidential Information of the other Party, then the Parties will resolve prior to filing whether such information is to be deleted from such\napplication before its filing.\n9. Warranties and Liability.\n9.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY\nREPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY\nWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT\nTO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, CONFIDENTIAL INFORMATION,\nINTELLECTUAL PROPERTY RIGHTS, TECHNOLOGY, DEVELOPMENT PROGRAM WORK PRODUCT, INDEPENDENT\nTECHNOLOGY, MATERIALS, PRODUCTS AND THE LIKE, OR ANY PORTION OF COMPONENT THEREOF.\n9.2 IN NO EVENT SHALL A PARTY BE LIABLE FOR OR OBLIGATED IN ANY MANNER TO PAY ANY CONSEQUENTIAL,\nSPECIAL, PUNITIVE OR INDIRECT DAMAGES TO THE OTHER PARTY OR TO ANY OF ITS AGENTS, EMPLOYEES,\nCONTRACTORS, REPRESENTATIVES OR AFFILIATES FOR BREACH OF ANY PROVISIONS OF THIS AGREEMENT.\n10. Term and Termination.\n10.1 Term. Unless earlier terminated pursuant to Section 10.2 or 10.3, this Agreement begins on the Effective Date and shall continue for\na period of twenty (20) years, which term may be extended by the Parties upon mutual written agreement.\n10.2 Termination for Cause. If either Party materially breaches this Agreement, the non-breaching may terminate this Agreement or, if\napplicable, a particular Development Program, by written notice; provided, however, that the written notice clearly describes the nature of the\nalleged breach, the events and circumstances that gave rise to the alleged breach and a clear explanation of whether this Agreement, a\nparticular Development Program or both are being terminated. No termination under this Section 10.2 will be effective until the non-breaching\nParty provides written notice of such breach to the other Party and such Party fails to cure such breach within thirty (30) days of such notice.\nAny termination shall become effective at the expiration of such thirty (30) day notice period. Notice of termination for cause will be in\nwriting and sent by certified mail, postage prepaid, return receipt requested. If a particular Development Program is terminated without the\ntermination of the entire Agreement, this Agreement will be terminated only with respect to such Development Program and will remain in\neffect with respect to the then outstanding Development Programs in accordance with their terms and or any other Development Programs the\nParties decide to pursue under this Agreement.\n10.3 Termination for Change of Control. If a Party undergoes a Change of Control, unless such event has been consented to in writing by\nthe\nother Party under Section 12.2, the other Party may terminate this Agreement immediately upon written notice.\n10.4 Effect of Termination.\nConfidential\n16\n(a) Upon any termination or expiration of this Agreement, all rights and obligations granted to either Party under this Agreement will\nimmediately terminate, except as provided in Section 10.5 and that Sections 8 and 9 will survive in accordance with their terms. Upon any\ntermination or expiration of this Agreement, each Party will cease all use of and return the other Party's property and Confidential Information,\nexcept for one archival copy or to the extent such property or Confidential Information is needed to be retained for a Party to exercise any\nsurviving rights provided under Section 10.5.\n(b) There may be one or more Development Programs pending at the time when notice of termination of this Agreement is first given. As\nof the date of receipt of that notice, each Party may decide to discontinue disclosing Confidential Information relating to its Independent\nTechnology to the other Party for the pending Development Programs; however, except in the case of a termination the Development Program\nin question or the entire Agreement, the Parties agree to work together diligently to bring each pending Development Program to a logical and\norderly close. Among other things, the Parties shall meet promptly thereafter in order to (a) prioritize work during the remaining term of each\nDevelopment Project, and (b) agree upon a reasonable time frame for the Parties to diligently complete such Development Programs on which\nthe Parties are close to completion. The Parties agree that their cooperative efforts from that time forward shall be focused to accomplish the\nagreed work, even if the work extends for up to one hundred and eighty (180) days beyond the noticed termination date.\n10.5 Survival. Nothing herein shall be construed to release any liability or obligation of either Party to the other for acts or omissions\nprior to the termination or expiration of this Agreement. Without limiting the foregoing:\n(a) If a Party receiving commercial licenses under Sections 7.5 through 7.8 ("Licensee Party") terminates under Section 10.2 for the\nuncured material breach of a Party granting licenses under those Sections ("Licensor Party), the licenses and rights granted under those\nSections will survive any such termination in accordance with their terms, provided that the Licensee Party continues to pay Royalty\nObligations for such licenses. Any such licenses and rights shall survive for a period that is co-extensive with the last to expire Intellectual\nProperty Right subject to the license in question.\n(b) If Licensor Party terminates under Section 10.2 for Licensee Party's uncured material breach, then:\n(i) The commercial licenses granted under Sections 7.5 through 7.8 will terminate and be of no further force and effect except that\nLicensee Party may continue to exercise such licenses solely as necessary to (A) continue to sell any inventory of products related to\nsuch licenses, and to manufacture and sell all products related to such licenses that are then in the process of being manufactured, for a\nperiod of no longer than six (6) months after the effective date of termination, and (B) to meet Licensee Party's then-existing (as of the\neffective date of termination) contractual obligations to third parties, for a period of no longer than [twelve (12)] months after the\neffective date of termination, subject to payment of applicable Royalty Obligations for such licenses; and\n(ii) Upon the end of the applicable period set forth in Section 11.5(b)(i), each sublicense previously granted by Licensee Party or\nany Affiliate of such Licensee Party under this Agreement shall remain in effect and shall become a direct license of such rights by\nLicensor Party to such sublicensee, subject to such sublicensee agreeing in\nConfidential\n17\nwriting to assume Licensee Party's terms, conditions and obligations to Licensor Party under this Agreement as they pertain to the\nsublicensed rights.\n(c) Termination or expiration of this Agreement will not relieve either Party from its payment obligations hereunder for any charges,\npayments or expenses due to the other Party that accrued prior to the termination or expiration date, and such amounts (if not otherwise due on\nan earlier date or disputed in good faith) shall be immediately due and payable on the termination or expiration date.\n11. Miscellaneous\n11.1 Notices. All notices and requests under this Agreement (i) shall be in writing, (ii) may be delivered personally, sent by commercial\ncourier with tracking capabilities - costs prepaid, mailed by certified or registered mail-return receipt requested with postage prepaid, at the\noption of the sending Party, and (iii) shall be sent to and shall be effective on the date of recorded delivery at the receiving Party's address for\nnotice. The initial address for notice is set forth below. Any subsequent address for notice shall be changed by notice given pursuant to this\nSection 11.1.\nIf to MSC:\nChief Technology Officer\nMomentive Specialty Chemicals Inc.\n180 East Broad Street\nColumbus, Ohio 43215\nwith a simultaneous copy to the General Counsel at the same address.\nIf to MPM:\nChief Technology Officer\nMomentive Performance Materials Inc.\n22 Corporate Woods Boulevard\nAlbany, New York 12211\nwith a simultaneous copy to the General Counsel at the same address.\n11.2 Assignment Neither Party shall have the right to assign or transfer this Agreement or any right, obligation of performance, or\ninterest hereunder, whether voluntary or involuntary, without first receiving the other Party's prior written consent. Any attempt at assigning or\ntransferring this Agreement in violation of this Section 11.2 shall be invalid and void and shall have no effect.\n11.3 Waivers. No waiver by a Party of any condition or breach of any provision of this Agreement will be effective unless in writing, and\nno\nwaiver in any one or more instances will be deemed to be a further or continuing waiver of any such condition or breach in other instances\nor a waiver of any other condition or breach of any other provision.\n11.4 Counterparts. This Agreement may be executed simultaneously in identical counterparts, each of which will be deemed an original,\nbut all of which together will constitute one and the same instrument. A facsimile transmission of the executed signature page of this\nAgreement will constitute due and proper execution of this Agreement by the Party executing the signature page.\nConfidential\n18\n11.5 Construction. The Section headings are for convenience only and will not be deemed part of this Agreement. The language of this\nAgreement will be construed according to its fair meaning. Any rule of construction resolving ambiguities against the drafting Party will not\napply in the interpretation of this Agreement No specific representation, warranty or covenant contained in this Agreement will limit the\ngenerality or applicability of a more general representation, warranty or covenant.\n11.6 Independent Contractors. Each Party's relationship with the other is that of an independent contractor, and nothing in this\nAgreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Neither Party will\nbe entitled to any of the benefits that the other may make available to its employees, including, but not limited to, group health or life\ninsurance, profit sharing or retirement benefits. Neither Party is authorized to make any representation, contract or commitment on behalf of\nthe other\n11.7 Severability. If any provision of this Agreement is unenforceable or invalid under any applicable law or is SO held by applicable\ncourt decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will\nbe changed and interpreted SO as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable\nlaw or applicable court decisions; provided, however that if the Parties are unable to SO change the provision, then the affected Party may\nterminate this Agreement upon thirty (30) days notice.\n11.8 Governing Law. This Agreement and any dispute under this Agreement will be governed by and construed under the laws of the\nState of New York without regard to any of its conflict of laws principles.\n11.9 Survival. Subject to section 10.5, any provisions of this Agreement shall continue in full force and effect after termination of this\nAgreement, which are provisions that by their nature or purpose are intended to survive the termination of this Agreement.,\n11.10 Entire Understanding. This Agreement and the attached exhibits set forth the entire agreement and understanding of the Parties in\nrespect to the transactions contemplated and supersedes all prior agreements, arrangements, representations, term sheets and understandings\nrelating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented only in a writing signed by\nrespective officers of the Parties. This Agreement is not intended to confer upon any person, other than the signing Parties, any rights or\nremedies.\nConfidential\n19\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nMPM:\nMSC:\nMOMENTIVE PERFORMANCE MATERIALS INC.\nMOMENTIVE SPECIALTY CHEMICALS INC.\nBy:\nAuthorized Person\nBy:\nAuthorized Person\nPrint Name:\nPrint Name:\nTitle:\nTitle:\nDate:\nMarch 17, 2011\nDate:\nMarch 17, 2011\nConfidential\n20\nExhibit A\n(MODEL) DEVELOPMENT PROGRAM FORM\nThis Development Program Form describes the research program to be conducted by the Parties, and is governed by, is an attachment to and is,\nupon execution by the Parties, incorporated by reference into the Master Confidentiality and Joint Development Agreement by and between\nMomentive Specialty Chemicals Inc. ("MSC") and Momentive Performance Materials Inc. ("MPM") with an Effective Date of October 1, 2010 (the\n"Agreement.") All the terms used in this Development Program Form shall retain the same meaning as defined in the Agreement and such\ndefinitions are incorporated herein by reference In the event of any conflict between the provisions of the Agreement and of this Development\nProgram Form, the terms of the Agreement shall prevail. The terms and conditions of this Development Program Form are applicable solely to the\nresearch and development program described herein and in no way affect or alter the terms of any other Development Program Forms incorporated\ninto the Agreement prior to or after the Effective Date of this Development Program Form. This Development Program Form shall be effective as of\nthe date of the last signature below.\n1.\nScope:\n2.\nDate of Program Commencement:\n3.\nContent and Timeline of Project:\n4.\nBusiness Units Involved in Program:\n5.\nRoles and Responsibilities:\n6.\nKey Contact Persons:\n7.\nProtocols for:\nA.\nExperimental Plans\nB.\nData and Information Exchange\nC.\nReporting and Periodic Progress Reports\n6. Deliverables:\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nConfidential\n21\nMPM:\nMSC:\nBy:\nBy:\nPrint Name:\nPrint Name:\nTitle:\nTitle:\nDate:\nDate\nConfidential\n22	EX-10.2 3 dex102.htm MASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nExhibit 10.2\nMASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nThis Master Confidentiality and Joint Development Agreement (“Agreement”) is by and between Momentive Specialty Chemicals Inc., with a\nprincipal place of business at 180 East Broad Street, Columbus, Ohio 43215 (“MSC”), and Momentive Performance Materials Inc., with a principal\nplace of business at 22 Corporate Woods Boulevard, Albany, NY 12211 (“MPM”). The effective date of this Agreement is October 1, 2010\n(“Effective Date”).\nRECITALS\nWHEREAS, MSC makes and sells epoxy, phenolic and coating products and materials, as well as forest products, and has developed, and\ncontinues to develop, proprietary technology and intellectual property relating to such products and materials, the manufacture of such products and\nmaterials and the use of such products and materials in a wide variety of end-use applications;\nWHEREAS, MPM makes and sells silicones, quartz and ceramics products and materials, and has developed, and continues to develop,\nproprietary technology and intellectual property relating to such products and materials, the manufacture of such products and materials and the use\nof such products and materials in a wide variety of end-use applications;\nWHEREAS, MSC and MPM are Affiliates, although separate legal entities, and are both commonly indirectly owned by Momentive\nPerformance Materials Holdings LLC;\nWHEREAS, MSC and MPM mutually desire to cooperate with each other from time to time in the exchange of confidential information and\nproprietary technology and/or in the joint development of certain technology and/or products as the Parties mutually deem appropriate throughout\nthe life of this Agreement; and\nWHEREAS, in the event that new technology, products, materials and the like, including any resulting intellectual property related thereto, are\ndeveloped under this Agreement, MSC and MPM desire to set forth their respective rights regarding the ownership and use of such technology,\nproducts, materials and associated intellectual property.\nNOW, THEREFORE, in consideration of the material covenants and promises set forth herein the receipt and sufficiency of which is hereby\nagreed and acknowledged, the Parties agree as follows:\n1. Definitions.\n1.1 “Affiliate” means any entity that directly or indirectly owns, is owned by, or is under the common ownership with a Party, at any time\nduring the term of this Agreement. “Owns”, “owned” or “ownership” means direct or indirect possession of more than fifty percent (50%) of\nthe votes of holders of a corporation’s voting securities, or a comparable equity or other ownership interest in any other type of entity; provided\nthat for the purposes of this Agreement, MPM and its Affiliates shall not constitute Affiliates of MSC or its Affiliates, and vice-versa.\nConfidential\n1\n1.2 “Change of Control” means the occurrence of any of the following events: (a) any sale, lease, exchange or other transfer (in one\ntransaction or a series of related transactions) of all or substantially all of the assets of either of MSC or MPM to any entity or group, together\nwith any Affiliates thereof; (b) consummation of a sale of capital stock, merger, consolidation, reorganization or other transaction (or series of\nrelated transactions) involving either of MSC or MPM following which the direct or indirect beneficial owners of the applicable Party (or any\nof them) as of the date hereof do not hold, collectively, capital stock or other securities of the surviving corporation (i) with voting power to\nelect a majority of the surviving entity’s board of directors or equivalent, or (ii) representing a beneficial interest in the surviving entity equal\nto at least a majority thereof or (c) any other transaction the result of which is that MPM shall no longer constitute an Affiliate of MSC. For\npurposes of this definition, no effect shall be given to the proviso to the definition of “Affiliate” set forth in Section 1.1.\n1.3 “Confidential Information” means any technical or commercial information or data, trade secrets, know-how, etc., of either Party or\ntheir respective Affiliates whether or not marked or stamped as confidential, including without limitation, Technology, Invention(s),\nIntellectual Property Rights, Independent Technology and any samples of products, materials or formulations including, without limitation, the\nchemical identity and any properties or specifications related to the foregoing. Any Development Program Technology, MPM Work Product,\nMSC Work Product, Hybrid Work Product, Prior End-Use Work Product and/or Shared Development Program Technology shall be\nConfidential Information of the Party that owns the subject matter under the terms set forth in this Agreement.\n1.4 “Development Program” means research and development programs that are mutually agreed upon from time to time by the Parties\nin accordance with the terms of this Agreement and described in a Development Program Form attached as Exhibit A to this Agreement.\n1.5 “Development Program Form” means the form described in Section 3.\n1.6 “Development Program Technology” means Technology that is not Independent Technology and that is conceived by at least one\nrepresentative of a Party or a Party’s Affiliates, either solely or jointly, after the Effective Date and before any expiration and/or termination of\nthis Agreement and directly attributed to work performed under any Development Program under this Agreement.\n1.7 “Effective Date” means the date first written above.\n1.8 “Hybrid Product” shall have the meaning set forth in Section 7.2 (c).\n1.9 “Hybrid Work Product” shall have the meaning set forth in Section 7.2 (c).\n1.10 “Independent Technology” means Technology and associated Intellectual Property Rights owned solely by a Party, which is\nconceived prior to the Effective Date and/or at any time outside of the course of a Development Program, provided, where such conception\noccurred after the Effective Date, the owning Party made no use of or reliance upon the other Party’s Technology for such conception or any\nsubsequent reduction to practice.\n1.11 “Intellectual Property Rights” means all worldwide utility and design patents, patent applications, and rights associated therewith,\nincluding any divisionals, continuations, continuations in part, reissues and reexaminations thereof, regardless of whether\nConfidential\n2\nsuch rights arise under the law of the United States or any other state, country or jurisdiction, as well as all know-how, trade secrets,\nproprietary information, technical data and the like.\n1.12 “Invention” means any invention, improvement, know-how, development, or discovery whether patentable or not.\n1.13 “MPM Materials” means: (i) chemical substances whether molecular or formulated and whether polymeric, monomeric or\nelemental which are based on the element silicon; (ii) sealants and adhesives, and adhesion promoters; (iii) catalytic materials including,\nwithout limitation, those based on the elements or species tin, amines, nickel, platinum, titanium and palladium; (iv) urethane additives and\nformulations containing the same; (v) additives for personal care products and resulting formulations; (vi) coatings; (vii) cross-linking agents\nand coupling agents; (viii) hardcoat formulations; (viii) ceramic powders for industrial use in the manufacture of a wide variety of goods;\n(ix) thermal management products for use in heat transfer applications; (x) ceramic parts and coated articles, electric resistance heating\nelements, and related components for use in various industrial processes; (xi) fabricated articles made from fused silica, fused quartz or glass\nfor use in the semiconductor, electronics, metallurgical, thin film and other industries; (xii) ceramic heaters and heater assemblies; (xii) metal\ncarbide coatings; and (xiii) synthetic silicone dioxide and modifications thereof.\n1.14 “MPM Work Product” shall have the meaning set forth in Section 7.2 (a).\n1.15 “MSC Materials” means (i) epoxy resins curing agents and modifiers for use across a wide range of applications including coatings,\nlaminates, composites and adhesives; (ii) adhesives for use in engineered wood products; (iii) formaldehyde and derivatives including\nhexamine, methaform and urea concentrates; (iv) mortar chemicals including liquid latexes, redispersible latex powders and other additives;\n(v) moulding compounds including epoxies, phenolics, melamine-phenolics and unsaturated polyesters; (vi) resin coated proppants;\n(vii) phenolic and amino resins including phenolic novolac, resole, powder resin solutions and water-based solutions; (viii) tackifier resins and\npine chemicals for use in hot melt adhesives, road marking applications and pressure-sensitive and non-pressure-sensitive adhesives;\n(ix) textile and non-woven resins; (x) UV curable resins for fiber optic applications; (xi) VERSATIC acid and derivatives; (xii) wax products\nand additives for use in coatings, composites and gypsum panels; and (xiii) wood composite binders for use in plywood and laminated veneer\nlumber, particleboard, MDF and oriented strand board.\n1.16 “MSC Work Product” shall have the meaning set forth in Section 7.2 (b).\n1.17 “Party” or “Parties” means, subject to Section 2, either MSC or MPM individually, or both MSC and MPM, as the text would\nwarrant.\n1.18 “Person” means any individual, corporation, partnership, association, trust, governmental authority or other entity or organization.\n1.20 “Previously Commercialized Party” shall have the meaning set forth in Section 1.21.\n1.21 “Prior End-Use Work Product” means (i) Hybrid Product or (ii) the use of any products, materials, formulations and the like that are\nmade from or include any Hybrid Product, in each case that can be used in an end-use application that has been commercially exploited by one\nParty and/or a Party’s Affiliate (but not both of the Parties including their\nConfidential\n3\nrespective Affiliates) prior to the Effective Date. The Party (including their respective Affiliates) who has previously commercialized such\nend-use application will be referred to as “Previously Commercialized Party”.\n1.22 “Purpose” shall have the meaning set forth in Section 2.\n1.23 “Royalty Obligations” means payment obligations, whether as up-front payments, royalties, license maintenance fees, milestone\npayments or any other consideration, for any royalty-bearing license granted in this Agreement that has been reasonably negotiated by the\nParties through arm’s-length good faith negotiation and agreement through the Steering Committee as provided in Section 7.4. In a scenario\nwhere the Parties have agreed to jointly pursue a commercial opportunity and the licensor Party has decided, in its sole discretion, that its\nparticipation in the joint opportunity will provide it with sufficient value, the licensor Party may decide, in its sole discretion, that a reasonable\nroyalty is one dollar or other nominal amount. The Royalty Obligations may be agreed upon as part of a Development Program Form, an\namendment to this Agreement or any other writing executed between the Parties.\n1.24 “Shared Development Program Technology” means Development Program Technology that (i) did not evolve into MPM Work\nProduct or MSC Work Product, (ii) is not Prior End-Use Work Product or (iii) does not meet the criteria set forth in Section 7.2(c)(i) through\n(v).\n1.25 “Steering Committee” means the committee described in Section 6.2 .\n1.26 “Technology” means all tangible or intangible know-how, knowledge, concepts, procedures, schematics, trade secrets, technical\ninformation and data, ideas, processes, inventions, technology, discoveries, improvements, methods, compositions, formulae, techniques, test\nresults, devices, designs, and/or manufacturing specifications and procedures, strategic business information, financial information, and any\ninformation regarding sources and prices for raw materials, subassemblies, parts and manufacturing services.\n2. Agreement Subject Matter. It is expected that the Parties will be exchanging Confidential Information with each other: (i) during their\nmutual evaluation of potential opportunities to collaborate with each other in the commercial exploitation of their respective products and\ntechnologies, (ii) during any cooperative research and development of newly developed products and technologies, and (iii) during the commercial\nphase of any cooperative exploitation of a Party’s products and/or technologies. In addition, it is expected that the Parties will also exchange\nConfidential Information during the planning for and delivery of services pursuant to that certain Shared Services Agreement, effective October 1,\n2010, subscribed to by, among other parties, MPM and Hexion Specialty Chemicals Inc. (predecessor company to MSC). Accordingly, this\nAgreement sets forth the terms and conditions for the disclosure, receipt and use of the other Party’s Confidential Information and also sets forth the\nterms and conditions for any cooperative development activities that the Parties may mutually decide to pursue. All of the activities and exchanges\nof Confidential Information described in this Section 2 shall be referred to as the “Purpose.” For the purpose of clarity, each Party will be engaging\nin activities to achieve the Purpose either by itself or with the assistance of, or through, one or more of its Affiliates. Therefore, the term “Party” (or\n“Parties”) or MPM or MSC in this Agreement shall mean the applicable Party and its respective Affiliates, as the context requires. As an exception,\nthe foregoing shall not apply to Section 7.2 since it is intended that only MPM or MSC shall become owners of the subject matter, materials and/or\nproducts contemplated therein.\nConfidential\n4\n3. Development Program. During the life of this Agreement, it is anticipated that the Parties will meet from time to time to explore\nopportunities to collaborate with each other under a Development Program to develop new products and/or technology that could potentially benefit\nthe Parties. If, as a result of these meetings, the Parties mutually agree to pursue a Development Program, the Parties will work in cooperation,\nthrough the Steering Committee or as otherwise agreed by the Parties, to define goals and objectives of such Program and, thereafter, the scope of\nwork, milestones and timelines of the Development Program. The Parties shall also define the roles and responsibilities of each Party, and nominate\nprogram leaders from each of their respective organizations, as further described in Section 6, who will work with each other to oversee and manage\nthe establishment and implementation of the Development Program and jointly develop protocols for the exchange of experimental plans, technical\nprogram data and reporting periodic progress reviews. All of the foregoing activities, etc. will be described in a separate written Development\nProgram Form, substantially in the form attached hereto as Exhibit A (Development Program Form). Each Development Program Form shall be\nsigned by a duly authorized representative of each Party and maintained by the Parties in a separate database and/or in the file where this Agreement\nis maintained. Each Party agrees to regularly share data and information generated as a result of each Development Program undertaken hereunder,\nand to promptly notify the other Party of any new Development Program Technology, including without limit, any Invention conceived or reduced to\npractice in the course of a Development Program. For the purpose of clarity, in the event that any joint development activity or initiative is carried\nout by the Parties and, in so doing, the Parties fail to complete and execute a Development Program Form, such activity will nevertheless be subject\nto all of the terms and conditions of this Agreement and such failure will not relieve a Party or the Parties from complying with this Agreement.\n4. Information Sharing.\n4.1 In order to coordinate and direct their respective research and development activities under any Development Program, the Parties,\nthrough their respective program leaders, will meet on a monthly basis, or as otherwise deemed necessary by the Parties. During these monthly\nmeetings, the Parties will review the activities undertaken in connection with any ongoing Development Programs, report on the progress\ntowards achieving any established goals and objectives and/or any perceived challenges or impediments to achieving such objectives, discuss\nthe status of the scope of work and any associated milestones and timelines and make adjustments to the scope of work, milestones and/or\ntimelines as deemed necessary or beneficial. It is expected that these monthly meetings will take place by telephone unless the Parties mutually\nagree otherwise.\n4.2 The Parties shall jointly prepare a written report every three (3) months during the life of any Development Program that outlines all\nresearch and development activities that have transpired, the current status of such activities, any relevant conclusions, future activities under\ncontemplation, and any proposed changes to the R & D scope, milestones and/or timelines. The report shall also include a clear explanation\nand documentation of any inventions, discoveries, improvements, etc. that have been made, as well as any conception records generated in the\nmanner set forth in Section 7.9 (d).\n5. Financial Terms. Unless otherwise decided by the Steering Committee and subsequently memorialized in a writing signed by the Parties’\nrespective duly authorized representatives, the Parties shall bear their respective costs relating to performance under this Agreement without any\nfinancial obligation to the other and neither Party shall be entitled to any reimbursement from the other Party for costs it incurs in support of any\nDevelopment Program.\nConfidential\n5\n6. Management of Joint Development Activities/Steering Committee.\n6.1 Both MPM and MSC would each appoint one (1) individual from their respective organizations to act as a Program Leader for each\nDevelopment Program that is pursued under this Agreement. The Program Leaders so appointed would be responsible for: (i) establishing an R\n& D team (composed of personnel having the requisite level of experience to properly and efficiently implement the Development Program);\n(ii) developing an R & D plan pursuant to the general guidelines set forth in Sections 2 and 3; (iii) overseeing the day-to-day management and\nimplementation of the Development Program on behalf of MPM and MSC; and (iv) coordinating the exchange of routine Development\nProgram-related communications between MPM and MSC. The Program Leaders would be further responsible for establishing a patent\ndevelopment strategy including, among other things, patent procurement targets, to protect all Development Program Technology. In addition,\nthe Program Leaders will prepare an outline detailing proposed ownership of patents and patent applications, consistent with the ownership\nprovisions of Section 7.2, that are likely to evolve from the Development Program on or before six (6) months from the date of commencement\nof the Development Program in question. This outline will, in turn, be reviewed by the Steering Committee and adopted or modified, as the\nSteering Committee deems appropriate. As a Development Program approaches its latter stages and the Parties have established an\nunderstanding of the potential value associated with the Development Program Technology and other work product resulting from a\nDevelopment Program, the Program Leaders will prepare a proposed business model or value-sharing proposition for consideration by the\nSteering Committee. In the event that the Parties decide, by mutual agreement or Steering Committee determination, that a particular\nDevelopment Program would be executed and managed more efficiently by one of the Program Leaders due to his or her prior experience in\nthe targeted subject matter area, the Parties, or the Steering Committee, may nominate one of the Program Leaders to serve as the managing\nProgram Leader for that particular Development Program.\n6.2 Both MPM and MSC would each appoint three (3) individuals from their respective organizations to form a Steering Committee; one\n(1) individual should be a senior-level representative selected from the marketing/commercial group, one (1) individual should be a senior-\nlevel representative selected from the technology group and the third individual can be selected as a Party deems appropriate. In general, the\nfunctions of the Steering Committee would be to provide strategic direction to the Program Leaders and make informed decisions regarding\nthe direction, management and implementation of the Development Program(s). Each Party, in its sole discretion, would be permitted to\nchange its own Steering Committee members by providing written notice to the other Party, along with an explanation of why the change is\nbeing made.\n6.3 The Steering Committee would meet in person at least two (2) times per year or as otherwise deemed necessary. The location of\nmeetings would alternate between MPM and MSC host facilities. Alternatively, the Steering Committee, at its discretion, could conduct these\nmeeting via telephone. Steering Committee decisions would become effective with a unanimous vote. Each member of the Steering Committee\nwould have one (1) vote.\n6.4 In addition to addressing the matters set forth in Sections 3, 5, 6.1, 6.2 and 7.2 (c), or by way of further clarifying such matters, the\nSteering Committee would consider and reach decisions on the following matters:\nConfidential\n6\n(a) Whether to accept, reject or modify R & D plans or Development Programs proposed by the Program Leaders;\n(b) Whether to continue or modify ongoing Development Programs;\n(c) Approve or reject key milestone events for Development Programs, as established by the Program Leaders, including anticipated\ndeliverables and dates of completion and revise and/or add secondary milestones as necessary;\n(d) Whether to procure resources that are needed from time to time in the execution of any Development Program;\n(e) Discuss and decide upon commercialization options and strategies for exploiting any technologies, products, systems, materials and\nthe like that result from work performed under a Development Program and provide specific guidance and direction to MPM and MSC for\nexecuting any established commercialization strategies; and\n(f) Make reasonable determination of Royalty Obligations as contemplated under this Agreement.;\n7. Intellectual Property Ownership, Commercial Principles and Licenses.\n7.1 Independent Technology. Each Party acknowledges and agrees that, as between the Parties, each Party is and shall remain for all\npurposes hereunder the sole and exclusive owner of all right, title and interest in and to its Independent Technology and all associated\nIntellectual Property Rights. Each Party acknowledges that it acquires no rights under this Agreement to the other Party’s Independent\nTechnology or associated Intellectual Property Rights other than the limited licenses expressly granted in this Agreement.\n7.2 Ownership of Development Program Technology and Related Intellectual Property Rights. Unless otherwise agreed in writing, and\nsubject to Section 7.1, ownership of Development Program Technology and all Intellectual Property Rights derived therefrom shall be as\nfollows:\n(a) MPM. As between the Parties, MPM shall own all Development Program Technology relating to (i) MPM Materials, (ii) all know-\nhow and processes relating to the manufacture of MPM Materials, (iii) all analytical and/or quality control techniques used in the\nConfidential\n7\nevaluation of MPM Materials, (iv) all uses of any MPM Materials (without use of any MSC Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MPM Material (without the use or inclusion of\nany MSC Material). MPM shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed\npursuant to this Agreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be\nreferred to as “MPM Work Product.” MSC hereby assigns to MPM the entire right, title and interest in and to the MPM Work Product,\nincluding without limit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or\napplicable to such MPM Work Product.\n(b) MSC. As between the Parties, MSC shall own all Development Program Technology relating to (1) MSC Materials, (ii) all know-how\nand processes relating to the manufacture of MSC Materials, (iii) all analytical and/or quality control techniques used in the evaluation of MSC\nMaterials, (iv) all uses of any MSC Materials (without the use or inclusion of any MPM Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MSC Material (does not include an MPM\nMaterial). MSC shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed pursuant to this\nAgreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be referred to as\n“MSC Work Product.” MPM hereby assigns to MSC the entire right, title and interest in and to the MSC Work Product, including without\nlimit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or applicable to\nsuch MPM Work Product.\n(c) Ownership Requiring A Steering Committee Decision . Subject to Section 7.2(e), the Steering Committee shall decide, on a case-by -\ncase basis, which Party owns, as between the Parties, Development Program Technology relating to: (i) any product, material, composition of\nmatter, system or the like that includes an MPM Material and an MSC Material (“Hybrid Product”), (ii) all know-how, processes, etc., relating\nto the manufacture of any Hybrid Product, (iii) all analytical and/or quality control techniques used in the evaluation of any Hybrid Product,\n(iv) any and all end-use applications of any Hybrid Product, provided that such end-use applications have never been commercially exploited\nby either of the Parties, or have been commercially exploited by both of the Parties, prior to the Effective Date, (v) any and all end-use\napplications of products, materials, formulations and the like that are made from or include any Hybrid Product, provided that such end-use\napplications have never been commercially exploited by either of the Parties, or have been commercially exploited by both of the Parties, prior\nto the Effective Date and (vi) Shared Development Program Technology. All of the foregoing in (i) through (vi) shall be referred to as “Hybrid\nWork Product.” An owner of any Hybrid Work Product as decided by the Steering Committee shall also own all of the Intellectual Property\nRights in the Development Program Technology derived from that Hybrid Work Product and the non-owning Party hereby assigns to the\nowning Party the entire right, title and interest in and to that Hybrid Work Product, including without limit, any Inventions and Intellectual\nProperty Rights derived from the Development Program Technology associated with or applicable to such Hybrid Work Product.\n(d) Joint Ownership As Default Decision. In the event that the Steering Committee is unable to reach a decision regarding the ownership\nof Development Program Technology and related Intellectual Property Rights resulting from Hybrid Work Product as contemplated in\nSection 7.2 (c) at the Steering Committee meeting that the particular ownership issue is presented for consideration, or within thirty (30) days\nthereafter should the Steering\nConfidential\n8\nCommittee decide that it needs more time to reach a definitive decision, then the Parties shall jointly own that Hybrid Work Product and such\nrelated Intellectual Property Rights until a definitive decision is reached, provided that, during any period of joint ownership, neither Party will\n(i) exercise such joint ownership in a way that is inconsistent with the intent and the terms and conditions of this Agreement, (ii) assign or\ntransfer title to any such work product or Intellectual Property Rights without the other Party’s express prior written consent, or (iii) license or\notherwise provide such Hybrid Work Product or Intellectual Property Rights to any third party, including without limitation any competitor of\nthe other Party or any infringer or potential infringer which the other Party is pursuing or plans to pursue. In the event that a definitive decision\nis reached with respect to the ownership of the subject Hybrid Work Product and related Intellectual Property Rights derived from\nDevelopment Program Technology, the owning party will own such Hybrid Work Product and such related Intellectual Property Rights under\nthe terms and conditions of this Agreement. In the event that a definitive decision assigning ownership of any Hybrid Work Product and related\nIntellectual Property Rights derived from Development Program Technology to one of the Parties is never reached, then the Parties will\ncontinue to jointly own such Hybrid Work Product and related Intellectual Property Rights derived from Development Program Technology\nsubject to the terms of this Section 7.2 (d).\n(e) Other Ownership Provisions. As between the Parties, the Previously Commercialized Party shall own all Development Program\nTechnology relating to the Prior End-Use Work Product in the end-use application that it has commercialized prior to the Effective Date. An\nowner of Prior End-Use Work Product shall also own all of the Intellectual Property Rights in the Development Program Technology derived\nfrom that Prior End-Use Work Product and the non-owning Party hereby assigns to the owning Party the entire right, title and interest in and to\nthat Prior End-Use Work Product, including without limit, any Inventions and Intellectual Property Rights in the Development Program\nTechnology associated with or applicable to such Prior End-Use Work Product.\n7.3 Research Licenses.\n(a) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIndependent Technology of the owner Party, solely to permit the other Party’s (by itself and/or through its Affiliates’) performance of research\nand development activities in connection with the execution and implementation of any Development Program under this Agreement and/or to\npursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development initiatives outside\nthe scope of this Agreement. In the event that a Party’s and/or its Affiliates’ (“Licensor Party”) Independent Technology is used under the\nlicense granted in this Section 7.3 (a) by the other Party and/or its Affiliates (“Licensee Party”) to pursue independent research and\ndevelopment initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention and/or\nTechnology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license under\nsuch Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology.\n(b) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIntellectual Property Rights derived from the Development Program Technology directly related to the MPM Work Product, MSC Work\nProduct, Hybrid Work Product and Prior End-Use Work\nConfidential\n9\nProduct (as the case may be) of the owner Party, solely to permit the other Party’s performance (by itself and/or through its Affiliates) of\nresearch and development activities in connection with the execution and implementation of any Development Program under this Agreement\nand/or to pursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development\ninitiatives outside the scope of this Agreement. In the event that a Party’s and/or its Affiliates’ (“Licensor Party”) Independent Technology is\nused under the license granted in this Section 7.3 (b) by the other Party and/or its Affiliate (“Licensee Party”) to pursue independent research\nand development initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention\nand/or Technology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license\nunder such Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology\n7.4 Commercial Principles.\nEach Party agrees to use commercially reasonable efforts to develop, implement and follow collaborative strategies for the commercialization\nof any MSC Material, MPM Material and/or Hybrid Product. The purpose of the foregoing obligation is to provide each Party with an equitable and\nbalanced opportunity to derive value and monetary return from opportunities that might result from any work or collaboration done under this\nAgreement. One component of any evaluation of a collaborative commercial strategy will include an analysis of the value proposition associated\nwith the joint pursuit of a commercial opportunity by the Parties. One such consideration is the Royalty Obligations that would be associated with\nthe commercial licenses granted under Sections 7.5 through 7.8, which will be negotiated and agreed to by the respective representatives of the\nParties through the Steering Committe in arm’s-length good faith negotiations. Each Party acknowledges and agrees that the agreement on the\nRoyalty Obligations is a condition precedent to the effectiveness of the commercial licenses granted under Sections 7.5 through 7.8 and the licensee\nParty will pay the Royalty Obligations during the term of such licenses. It is expected that the Steering Committee members will play a primary role\nin fulfilling the obligations under this Section 7.4 on behalf of their respective organizations. If, after using commercially reasonable efforts to satisfy\nthese obligations, the Parties decide that it is not commercially feasible or desirable to pursue a commercial opportunity jointly, each Party shall be\npermitted to separately pursue the opportunity. For the purpose of clarity, the Parties do not intend for anything contained in this Section 7.4 to create\nany partnership, agency, joint venture or the like between the Parties. Indeed, the Parties intend, at all times, to maintain their separate legal identities\nas they work together under this Agreement.\n7.5 MPM Licenses To MSC.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MPM Work Product to make, have made, use,\nsell, offer to sell and import MSC Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.5 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.5. This license does not grant MSC any sublicense rights and does not include any license to MPM’s Intellectual\nConfidential\n10\nProperty Rights that relate to MPM’s Independent Technology. MPM agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MSC’s Materials and/or Hybrid Products by a customer who purchases MSC\nMaterials and/or Hybrid Products from MSC.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MSC shall not actually have any licensed rights under this Section 7.5 (b) until the applicable Royalty\nObligations have been agreed to by the Parties as provided in Section 7.4. This license also includes a right for MSC to sublicense the licensed\nright of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MSC Materials and/or\nHybrid Products, provided that this license shall not become effective and MSC shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MPM agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.5 (c) based on a use of MSC’s Materials and/or\nHybrid Products by a customer who purchases MSC Materials and/or Hybrid Products from MSC.\n7.6 MSC Licenses To MPM.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MSC Work Product to make, have made, use,\nsell, offer to sell and import MPM Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.6 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.4. This license does not grant MPM any sublicense rights and does not include any license to MSC’s Intellectual\nProperty Rights that relate to MSC’s Independent Technology. MSC agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MPM’s Materials and/or Hybrid Products by a customer who purchases MPM\nMaterials and/or Hybrid Products from MPM.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MPM shall not actually have any licensed rights under\nConfidential\n11\nthis Section 7.6 (b) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license also\nincludes a right for MPM to sublicense the licensed right of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MPM Materials and/or\nHybrid Products, provided that this license shall not become effective and MPM shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MSC agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.6 (c) based on a use of MPM’s Materials\nand/or Hybrid Products by a customer who purchases MPM Materials and/or Hybrid Products from MPM.\n7.7 Cross Licenses\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by the licensee Party\nunder this Section, each Party agrees to grant and does hereby grant to the other Party and its Affiliates, on behalf of itself and its Affiliates, a\nnonexclusive, royalty-bearing, worldwide, revocable license under its Intellectual Property Rights derived from, and only from, Hybrid Work\nProduct that it owns under this Agreement to make, have made, use, sell, offer to sell and import Hybrid Products, provided that this license\nshall not become effective and neither licensee Party shall actually have any licensed rights under this Section 7.7(a) until the applicable\nRoyalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license does not grant either Party any sublicense\nrights and does not include any license to either Party’s Intellectual Property Rights that relate to a granting Party’s Independent Technology.\nEach Party agrees not to enforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.7 (a) based on a use\nof Hybrid products by a customer who purchases Hybrid Products from the licensee Party.\n7.8 Other Additional License. While the Parties have endeavored to include all licensing arrangements in this Agreement that are deemed\nnecessary or desirable to allow each Party to conduct the activities contemplated in this Agreement or as a result of this Agreement, the Parties\nrecognize that there may be a need to subsequently establish other licensing arrangements between the Parties. In the event that a Party decides\nthat it is necessary or desirable to enter into one or more licensing arrangements not included in this Agreement, each Party agrees to enter into\ngood faith negotiations with each other for such licenses. Any additional licenses shall only become effective by way of a written amendment\nto this Agreement signed by a duly authorized representative of each Party.\n7.9 Patent Procurement Procedures.\n(a) An owner of the MPM Work Product, MSC Work Product, Hybrid Work Product and Prior End-Use Work Product, as set forth\nabove, shall have the right, in its own discretion, to file patent applications in the United States and in any country of the world outside the\nUnited States in its own name. Each Party, at the request of the other Party, shall exercise reasonable efforts to support the filing of patent\napplications by the other Party in their respective technical fields of ownership. Such efforts shall include support by inventors and\nConfidential\n12\nexecution of all legal documents (applications, assignments and declarations). All costs of preparing, filing and prosecuting patent applications\nowned by a Party, and of maintaining such Patents, shall be borne by said Party. In the event a Party decides against filing a patent application\ndirected to any Development Program Technology that it owns under this Agreement and, additionally, the owning Party does not wish to\nmaintain such Development Program Technology as a trade secret, the other non-owning Party shall have the right to take ownership of such\nDevelopment Program Technology for no additional consideration, and agrees that it shall bear all costs associated with the procurement and\nmaintenance of any patents. Analogously, if the owner of a patent directed to Development Program Technology resulting from this Agreement\nis no longer interested in maintaining such patent, the owner will provide the other Party with reasonable advanced notice of its intent to allow\nthe patent to lapse to give the other Party the opportunity to pay the maintenance fees and assume ownership of the patent in question for no\nadditional consideration. Also, if a Party decides against filing a patent application directed to Development Program Technology in a\nparticular country or countries that are of interest to the other Party, the owning Party will allow the other Party to effectuate the filings in those\nother countries, at the other Party’s expense, and the other Party will assume ownership of that patent application and any patent(s) issuing\ntherefrom without the need to pay any additional consideration. In the event that a transfer by one Party to the other Party occurs under this\nSection 7.9 (a), the transferor shall retain a royalty-free, worldwide, nonexclusive, irrevocable license under the transferred Development\nProgram Technology and/or Intellectual Property Rights in question.\n(b) In those instances where each Party will be filing a patent application that will disclose and/or claim subject matter that is related or\nsimilar to the subject matter presented in the other Party’s patent application, the Parties agree to file their respective priority patent\napplications on the same day. In order to facilitate and execute this requirement, the Parties’ patent counsel will coordinate and implement the\nappropriate actions.\n(c) The Parties agree that when filing patent applications directed to their respective areas of technical subject matter, they will not claim\nsubject matter owned by the other Party, without receiving the other Party’s written consent.\n(d) A separate record of conception shall be prepared for each invention relating to Technology conceived under any Development\nProgram. Each conception record shall include a proper description of the conceived invention. The conception record shall also include a\ndescription of an operative method of making the invention (where appropriate), as well as a description of the utility of the invention. The\nconception record, including the foregoing descriptions, shall be read by one having a level of skill in the art in the technical field in question\nrequired to understand the substance of such record (“Corroborating Witness”). Finally, the conception record shall be signed and dated by the\nperson(s) who conceived the invention and by the Corroborating Witness. Subject to Section 8 (where appropriate), a copy of each conception\nrecord generated under this Agreement shall be provided to the other Party for review, along with the written reports contemplated in\nSection 4.2 .\n(e) The Parties agree and acknowledge that this Agreement is and shall be treated as a “joint research agreement” within the meaning of\nTitle 35 U.S .C. §103(c). The Parties agree to permit one another the right to disclose to the United States Patent and Trademark Office\n(“USPTO”) and other foreign patent prosecution offices, where appropriate or necessary, the existence and identifying information of patent\napplications that are filed by the other Party; and the existence of this Agreement.\nConfidential\n13\n(f) While either Party may rely upon Title 35 U.S .C. §103(c) to overcome a prior art issue or to overcome a rejection imposed by the\nUSPTO, so that the Party disqualifies the other Party’s patent or patent application as prior art, the Parties agree to use reasonable efforts to\ntraverse a rejection by the USPTO without resorting to Title 35 U.S .C. §103(c). Should a Party ultimately elect, at its sole option and\ndiscretion, to rely upon Title 35 U.S.C. §103(c), the Parties shall cooperate in obtaining and filing any and all required papers, documents,\napprovals, consents and/or authorizations and including amending patent applications to identify the Parties as necessary to take advantage of\nTitle 35 U.S .C. §103(c).\n(g) The Parties agree that, if a double patenting issue arises in either a reexamination proceeding, an issued patent, or in a patent\napplication that has been filed under this Agreement, the Parties shall use reasonable efforts to address the issue without filing a terminal\ndisclaimer. However, if a Party ultimately determines, at its sole option and discretion, that the best course of action for that Party is to file a\nterminal disclaimer, the Parties agree to sign, and otherwise cooperate in the execution and filing, of a terminal disclaimer that complies with\n37 C.F.R. §1.321, and any other similar USPTO rule or regulation then in effect. The Parties recognize that filing such a terminal disclaimer\nprohibits the Parties from separately enforcing the U.S . patents that issue from the involved applications or the involved patents (hereinafter\ncollectively “Involved U.S. Patents”). Should issues of enforcement arise with respect to the Involved U.S . Patents, the Parties agree to\ndiscuss, in good faith, terms and conditions for jointly enforcing such Involved U.S. Patents.\n7.10 Further Acts and Assistance. The Parties agree to perform, during and after the term of this Agreement, all customary acts that are\nreasonably necessary or desirable to permit and assist the other in obtaining, perfecting and enforcing the full benefits, enjoyment, rights and\ntitle in the Intellectual Property assigned to the other Party under this Agreement. In the event that it becomes necessary to compensate any\nemployee of MSC or MPM who invented any Invention or Intellectual Property Rights, both MPM and MSC shall be obligated to compensate\nits own employees and shall have no obligation to compensate any of the other Party’s employees.\n8. Confidential Information.\n8.1 Each Party will maintain in strict confidence all Confidential Information received from the other Party. Each Party agrees that it will\nnot use, disclose to any third Person or grant use of such Confidential Information except to the extent required to achieve the Purpose or as\notherwise authorized in advance by the other Party in writing. Each Party agrees to use at least the same standard of care as it uses to protect its\nown confidential information of a similar nature to ensure that its employees do not disclose or make any unauthorized use of such\nConfidential Information, but in no case less than a reasonable standard of care. Each Party will disclose the other Party’s Confidential\nInformation only to those of such Party’s employees, and subject to the other Party’s prior written approval, consultants and contractors who\nneed to know such information to assist the Party in achieving the Purpose. Each Party certifies that each such employee, consultant and\ncontractor will have agreed in writing, either as a condition to employment or in order to obtain the other Party’s Confidential Information, to\nbe bound by confidentiality terms and conditions substantially similar to those terms and conditions applicable to each Party under this\nAgreement. Each Party guarantees that any of its employees, consultants, contractors, etc. that receive the other Party’s Confidential\nInformation hereunder will abide by the confidentiality and limited use obligations undertaken by a receiving Party under this Agreement.\nEach Party will promptly\nConfidential\n14\nnotify the other Party upon discovery of any unauthorized use or disclosure of such Party’s Confidential Information.\n8.2 The Parties agree that the existence of this Agreement and its terms will also be considered Confidential Information and agree not to\ndisclose the terms of this Agreement to a third Person without the prior written consent of the other Party, except (i) as required to enforce the\nterms of this Agreement, (ii) to financial institutions, accountants, advisors and counsel or (iii) as required by statute, regulation or the order of\na court of competent jurisdiction. A disclosure of any Confidential Information (i) in response to a valid order by a court or other governmental\nbody or (ii) as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other\npurposes; provided, however, that the Party making such disclosure will provide prompt prior written notice thereof to the owner Party to\nenable the owner Party to seek a protective order or otherwise prevent such disclosure.\n8.3 The foregoing obligations of confidentiality in this Section 8 will not apply to the extent that it can be established by the receiving\nParty by competent proof that such Confidential Information: (i) was generally available to the public or otherwise part of the public domain at\nthe time of disclosure to the receiving Party; (ii) became generally available to the public or otherwise part of the public domain after the\nowner Party disclosed such information to the receiving Party, other than through any act or omission of the receiving Party in breach of this\nSection 8, or (iii) was independently created or developed by such Party without reference to the Confidential Information of the other Party.\n8.4 A Party that receives product or material samples from the other Party shall not reverse engineer or analyze samples for chemical or\nstructural composition without the prior written consent of the disclosing Party. The results of all analyses of samples will be regarded as\nConfidential Information of the disclosing Party and will be treated by the receiving Party with the same strict confidentiality and restrictions\non limited-use and disclosure as the other Confidential Information referred to above. The receiving Party will provide the disclosing Party\nwith a written summary of these analyses.\n8.5 Publicity. Except as otherwise expressed in this Agreement, neither Party shall, without the prior written consent of the other, make\nany news release, public announcement, or other disclosure to any third Person or any public denial or public confirmation of the existence of\nthis Agreement, any disclosure of the Parties’ working together or any other fact concerning, arising out of or in connection with this\nAgreement, the terms or provisions hereof or any subsequent arrangement(s) between the Parties concerning any activities hereunder. Each\nParty additionally agrees that the name of the other Party, and their respective employees’ names, will not be used for purposes of advertising\nor publicity without the other Party’s prior written consent.\n8.6 Publications. Each Party additionally agrees that in order to safeguard patent rights, each Party, upon the request of the other, will\ndelay any public disclosure of any Invention generated in the course of a Development Program under this Agreement for a time period of up\nto three (3) months from the date of disclosure to the other Party in order to permit the filing of patent application(s). Each Party agrees to\ndisclose the filing of any patent application arising from this Agreement to the other, permit the other Party’s review thereof, and to cooperate\nin the filing of any such patent applications desired by the disclosing Party as set forth in Section 7.9 hereof. Should any such patent\napplication of one Party contain any\nConfidential\n15\nConfidential Information of the other Party, then the Parties will resolve prior to filing whether such information is to be deleted from such\napplication before its filing.\n9. Warranties and Liability.\n9.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY\nREPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY\nWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT\nTO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, CONFIDENTIAL INFORMATION,\nINTELLECTUAL PROPERTY RIGHTS, TECHNOLOGY, DEVELOPMENT PROGRAM WORK PRODUCT, INDEPENDENT\nTECHNOLOGY, MATERIALS, PRODUCTS AND THE LIKE, OR ANY PORTION OF COMPONENT THEREOF.\n9.2 IN NO EVENT SHALL A PARTY BE LIABLE FOR OR OBLIGATED IN ANY MANNER TO PAY ANY CONSEQUENTIAL,\nSPECIAL, PUNITIVE OR INDIRECT DAMAGES TO THE OTHER PARTY OR TO ANY OF ITS AGENTS, EMPLOYEES,\nCONTRACTORS, REPRESENTATIVES OR AFFILIATES FOR BREACH OF ANY PROVISIONS OF THIS AGREEMENT.\n10. Term and Termination.\n10.1 Term. Unless earlier terminated pursuant to Section 10.2 or 10.3, this Agreement begins on the Effective Date and shall continue for\na period of twenty (20) years, which term may be extended by the Parties upon mutual written agreement.\n10.2 Termination for Cause. If either Party materially breaches this Agreement, the non-breaching may terminate this Agreement or, if\napplicable, a particular Development Program, by written notice; provided, however, that the written notice clearly describes the nature of the\nalleged breach, the events and circumstances that gave rise to the alleged breach and a clear explanation of whether this Agreement, a\nparticular Development Program or both are being terminated. No termination under this Section 10.2 will be effective until the non-breaching\nParty provides written notice of such breach to the other Party and such Party fails to cure such breach within thirty (30) days of such notice.\nAny termination shall become effective at the expiration of such thirty (30) day notice period. Notice of termination for cause will be in\nwriting and sent by certified mail, postage prepaid, return receipt requested. If a particular Development Program is terminated without the\ntermination of the entire Agreement, this Agreement will be terminated only with respect to such Development Program and will remain in\neffect with respect to the then outstanding Development Programs in accordance with their terms and or any other Development Programs the\nParties decide to pursue under this Agreement.\n10.3 Termination for Change of Control. If a Party undergoes a Change of Control, unless such event has been consented to in writing by\nthe other Party under Section 12.2, the other Party may terminate this Agreement immediately upon written notice.\n10.4 Effect of Termination.\nConfidential\n16\n(a) Upon any termination or expiration of this Agreement, all rights and obligations granted to either Party under this Agreement will\nimmediately terminate, except as provided in Section 10.5 and that Sections 8 and 9 will survive in accordance with their terms. Upon any\ntermination or expiration of this Agreement, each Party will cease all use of and return the other Party’s property and Confidential Information,\nexcept for one archival copy or to the extent such property or Confidential Information is needed to be retained for a Party to exercise any\nsurviving rights provided under Section 10.5 .\n(b) There may be one or more Development Programs pending at the time when notice of termination of this Agreement is first given. As\nof the date of receipt of that notice, each Party may decide to discontinue disclosing Confidential Information relating to its Independent\nTechnology to the other Party for the pending Development Programs; however, except in the case of a termination the Development Program\nin question or the entire Agreement, the Parties agree to work together diligently to bring each pending Development Program to a logical and\norderly close. Among other things, the Parties shall meet promptly thereafter in order to (a) prioritize work during the remaining term of each\nDevelopment Project, and (b) agree upon a reasonable time frame for the Parties to diligently complete such Development Programs on which\nthe Parties are close to completion. The Parties agree that their cooperative efforts from that time forward shall be focused to accomplish the\nagreed work, even if the work extends for up to one hundred and eighty (180) days beyond the noticed termination date.\n10.5 Survival. Nothing herein shall be construed to release any liability or obligation of either Party to the other for acts or omissions\nprior to the termination or expiration of this Agreement. Without limiting the foregoing:\n(a) If a Party receiving commercial licenses under Sections 7.5 through 7.8 (“Licensee Party”) terminates under Section 10.2 for the\nuncured material breach of a Party granting licenses under those Sections (“Licensor Party), the licenses and rights granted under those\nSections will survive any such termination in accordance with their terms, provided that the Licensee Party continues to pay Royalty\nObligations for such licenses. Any such licenses and rights shall survive for a period that is co-extensive with the last to expire Intellectual\nProperty Right subject to the license in question.\n(b) If Licensor Party terminates under Section 10.2 for Licensee Party’s uncured material breach, then:\n(i) The commercial licenses granted under Sections 7.5 through 7.8 will terminate and be of no further force and effect except that\nLicensee Party may continue to exercise such licenses solely as necessary to (A) continue to sell any inventory of products related to\nsuch licenses, and to manufacture and sell all products related to such licenses that are then in the process of being manufactured, for a\nperiod of no longer than six (6) months after the effective date of termination, and (B) to meet Licensee Party’s then-existing (as of the\neffective date of termination) contractual obligations to third parties, for a period of no longer than [twelve (12)] months after the\neffective date of termination, subject to payment of applicable Royalty Obligations for such licenses; and\n(ii) Upon the end of the applicable period set forth in Section 11.5(b)(i), each sublicense previously granted by Licensee Party or\nany Affiliate of such Licensee Party under this Agreement shall remain in effect and shall become a direct license of such rights by\nLicensor Party to such sublicensee, subject to such sublicensee agreeing in\nConfidential\n17\nwriting to assume Licensee Party’s terms, conditions and obligations to Licensor Party under this Agreement as they pertain to the\nsublicensed rights.\n(c) Termination or expiration of this Agreement will not relieve either Party from its payment obligations hereunder for any charges,\npayments or expenses due to the other Party that accrued prior to the termination or expiration date, and such amounts (if not otherwise due on\nan earlier date or disputed in good faith) shall be immediately due and payable on the termination or expiration date.\n11. Miscellaneous.\n11.1 Notices. All notices and requests under this Agreement (i) shall be in writing, (ii) may be delivered personally, sent by commercial\ncourier with tracking capabilities - costs prepaid, mailed by certified or registered mail—return receipt requested with postage prepaid, at the\noption of the sending Party, and (iii) shall be sent to and shall be effective on the date of recorded delivery at the receiving Party’s address for\nnotice. The initial address for notice is set forth below. Any subsequent address for notice shall be changed by notice given pursuant to this\nSection 11.1.\nIf to MSC:\nChief Technology Officer\nMomentive Specialty Chemicals Inc.\n180 East Broad Street\nColumbus, Ohio 43215\nwith a simultaneous copy to the General Counsel at the same address.\nIf to MPM:\nChief Technology Officer\nMomentive Performance Materials Inc.\n22 Corporate Woods Boulevard\nAlbany, New York 12211\nwith a simultaneous copy to the General Counsel at the same address.\n11.2 Assignment. Neither Party shall have the right to assign or transfer this Agreement or any right, obligation of performance, or\ninterest hereunder, whether voluntary or involuntary, without first receiving the other Party’s prior written consent. Any attempt at assigning or\ntransferring this Agreement in violation of this Section 1l.2 shall be invalid and void and shall have no effect.\n11.3 Waivers. No waiver by a Party of any condition or breach of any provision of this Agreement will be effective unless in writing, and\nno waiver in any one or more instances will be deemed to be a further or continuing waiver of any such condition or breach in other instances\nor a waiver of any other condition or breach of any other provision.\n11.4 Counterparts. This Agreement may be executed simultaneously in identical counterparts, each of which will be deemed an original,\nbut all of which together will constitute one and the same instrument. A facsimile transmission of the executed signature page of this\nAgreement will constitute due and proper execution of this Agreement by the Party executing the signature page.\nConfidential\n18\n11.5 Construction. The Section headings are for convenience only and will not be deemed part of this Agreement. The language of this\nAgreement will be construed according to its fair meaning. Any rule of construction resolving ambiguities against the drafting Party will not\napply in the interpretation of this Agreement. No specific representation, warranty or covenant contained in this Agreement will limit the\ngenerality or applicability of a more general representation, warranty or covenant.\n11.6 Independent Contractors. Each Party’s relationship with the other is that of an independent contractor, and nothing in this\nAgreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Neither Party will\nbe entitled to any of the benefits that the other may make available to its employees, including, but not limited to, group health or life\ninsurance, profit sharing or retirement benefits. Neither Party is authorized to make any representation, contract or commitment on behalf of\nthe other.\n11.7 Severability. If any provision of this Agreement is unenforceable or invalid under any applicable law or is so held by applicable\ncourt decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will\nbe changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable\nlaw or applicable court decisions; provided, however that if the Parties are unable to so change the provision, then the affected Party may\nterminate this Agreement upon thirty (30) days notice.\n11.8 Governing Law. This Agreement and any dispute under this Agreement will be governed by and construed under the laws of the\nState of New York without regard to any of its conflict of laws principles.\n11.9 Survival. Subject to section 10.5, any provisions of this Agreement shall continue in full force and effect after termination of this\nAgreement, which are provisions that by their nature or purpose are intended to survive the termination of this Agreement.,\n11.10 Entire Understanding. This Agreement and the attached exhibits set forth the entire agreement and understanding of the Parties in\nrespect to the transactions contemplated and supersedes all prior agreements, arrangements, representations, term sheets and understandings\nrelating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented only in a writing signed by\nrespective officers of the Parties. This Agreement is not intended to confer upon any person, other than the signing Parties, any rights or\nremedies.\nConfidential\n19\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nMPM:\nMSC:\nMOMENTIVE PERFORMANCE MATERIALS INC.\nMOMENTIVE SPECIALTY CHEMICALS INC.\nBy:\nAuthorized Person\nBy:\nAuthorized Person\nPrint Name:\nPrint Name:\nTitle:\nTitle:\nDate:\nMarch 17, 2011\nDate:\nMarch 17, 2011\nConfidential\n20\nExhibit A\n(MODEL) DEVELOPMENT PROGRAM FORM\nThis Development Program Form describes the research program to be conducted by the Parties, and is governed by, is an attachment to and is,\nupon execution by the Parties, incorporated by reference into the Master Confidentiality and Joint Development Agreement by and between\nMomentive Specialty Chemicals Inc. (“MSC”) and Momentive Performance Materials Inc. (“MPM”) with an Effective Date of October 1, 2010 (the\n“Agreement.”) All the terms used in this Development Program Form shall retain the same meaning as defined in the Agreement and such\ndefinitions are incorporated herein by reference. In the event of any conflict between the provisions of the Agreement and of this Development\nProgram Form, the terms of the Agreement shall prevail. The terms and conditions of this Development Program Form are applicable solely to the\nresearch and development program described herein and in no way affect or alter the terms of any other Development Program Forms incorporated\ninto the Agreement prior to or after the Effective Date of this Development Program Form. This Development Program Form shall be effective as of\nthe date of the last signature below.\n1. Scope:\n2. Date of Program Commencement:\n3. Content and Timeline of Project:\n4. Business Units Involved in Program:\n5. Roles and Responsibilities:\n6. Key Contact Persons:\n7. Protocols for:\nA. Experimental Plans\nB. Data and Information Exchange\nC. Reporting and Periodic Progress Reports\n6. Deliverables:\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nConfidential\n21\nMPM:\nMSC:\nBy:\nBy:\nPrint Name:\nPrint Name:\nTitle:\nTitle:\nDate:\nDate:\nConfidential\n22
e704bb47fa4ed83b77b7e3b70e4ca8e6.pdf	effective_date jurisdiction party term	EX-10.30 8 ex10p30.htm\nExhibit 10.30\nCONSULTING AND NON-DISCLOSURE AGREEMENT\nAND GENERAL RELEASE\nANHEUSER-BUSCH COMPANIES, INC., a Delaware corporation with its principal offices at One Busch Place, St. Louis,\nMissouri, 63118, its affiliates, subsidiaries, divisions, successors and assigns, and their directors, officers, employees and agents, both\nin their official and individual capacities (all of whom are collectively referred to throughout this Consulting and Non-Disclosure\nAgreement and General Release as “Anheuser-Busch”), and MARK T. BOBAK (“Bobak”), residing in St. Louis, Missouri, mutually\ndesire to enter into this Consulting and Non-Disclosure Agreement and General Release (“Agreement”) and agree as follows:\n1.\nTermination of Employment\nBobak agrees to terminate employment with Anheuser-Busch on December 31, 2007, (“Termination Date”) in order to allow him\nto return to the private practice of law.\n2.\nConsulting Payments\nAnheuser-Busch agrees that during the period from the Termination Date through December 31, 2012 (the “Consulting\nPeriod”), so long as Bobak fulfills any assigned duties and complies with all Anheuser-Busch policies and the provisions of this\nAgreement:\nA.\nBobak will be paid a consulting fee of $52,884 per month. All consulting payments shall be payable in semi-monthly\ninstallments on the 15th and last day of each month, less applicable withholding. In the event that Bobak dies prior to December 31,\n2012, Anheuser-Busch agrees to pay any remaining consulting payments due under this Agreement to Bobak’s spouse unless\notherwise directed in writing by Bobak.\nB.\nBobak agrees to devote the time necessary to complete any projects assigned to him by the Chief Executive Officer or\nhis designee. Anheuser-Busch will provide reasonable advance notice to Bobak of any work assignments, and will take into\nconsideration Bobak’s other commitments. Bobak also agrees that he will fully\ncooperate with any request made by Anheuser-Busch relating to or arising out of corporate transactions, labor relations, government\naffairs, litigation or any other matter that Bobak worked on, learned of, or became familiar with during his employment with Anheuser-\nBusch. Bobak will work from his personal residence or office and will not be provided with a company office or reserved parking\nspot. Bobak may retain his Blackberry/cell phone, computer, home fax machine, and company e-mail address for purposes of\nperforming services contemplated by this Agreement. Such items will be returned upon request by Anheuser-Busch. Subject to the\nprovisions of this Agreement and provided there is no interference with Bobak’s efforts as requested by Anheuser-Busch, Bobak may\nprovide services to other employers at any time after the Termination Date. Bobak agrees to provide to the Chief Executive Officer a\nreport of all projects and assignments that he is working on for Anheuser-Busch on a quarterly basis.\nC.\nAnheuser-Busch will reimburse Bobak, pursuant to company expense reimbursement guidelines, for all ordinary,\nnecessary and reasonable business expenses incurred by Bobak while conducting assignments for Anheuser-Busch at the direction of\nthe Chief Executive Officer or his designee.\nD.\nExcept as otherwise provided in this Agreement, Bobak agrees to return all Anheuser-Busch property (including, but\nnot limited to, company documents and records, whether in electronic or paper format, and all copies thereof, computers, cell phones,\nblackberries, fax machines, pagers, security badge and credit cards) on or before the Termination Date.\nE.\nAnheuser-Busch will continue to provide Bobak and his eligible dependents with health care benefits as described\nherein (“Health Benefits”). Until Bobak reaches the age of 58, he and his eligible dependents will continue to participate in the Group\nInsurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries (“Group Insurance Plan”), except that\nhis benefits under the Group Insurance Plan will be limited to insured medical, dental, vision and prescription drug benefits (“Health\nBenefits”) that are materially similar to the health benefits provided from time to time to Anheuser-Busch full-time salaried employees,\nand subject to the same benefit limits, co-payments, premium payments and deductibles. Upon Bobak\n2\nreaching age 58, he and his eligible dependents will participate in the Group Insurance Plan for Certain Retirees of Anheuser-Busch\n(Retiree Insurance Plan), except that the Health Benefits will be limited to those that are materially similar to the health benefits\nprovided from time to time to Anheuser-Busch retirees and subject to the same benefits limits, co-payments, premium payments and\ndeductibles. The selection of insurance carriers to provide the Health Benefits shall be in the sole discretion of Anheuser-Busch\nCompanies, Inc. The Health Benefits provided to Bobak during the Consulting Period shall, for purposes of coordination of benefits, be\nsecondary to any subsequent benefit coverage(s) for which Bobak, his spouse and eligible dependents become eligible as a result of\nBobak becoming an employee for any other employer. Bobak agrees that in the event he obtains new employment during the\nConsulting Period, he shall notify the Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, in writing within\n30 days after he first becomes eligible for any health benefit coverage through any subsequent employer(s) and will provide Anheuser-\nBusch with a copy of the summary plan descriptions for such coverage(s).\nF.\nExcept as otherwise specifically provided herein, during the Consulting Period Bobak will not be eligible for any\nbenefits from Anheuser-Busch Companies, Inc., or any of its subsidiaries, including, but not limited to, the following:\ni) long-term disability insurance coverage;\nii) short-term disability coverage;\niii) life insurance or retiree life insurance;\niv) paid sick days;\nv) health care and/or dependent care spending account benefits;\nvi) legal assistance benefits;\nvii) country club membership;\nviii) monthly beer tickets and/or other complimentary beer; and\nix)\naccess to, or use of, the executive dining room, fitness center or barber shop.\nG.\nSubject to review by the Compensation Committee of the audited financial statements and its certification that the\nperformance goal set forth in the 2007 Officer\n3\nBonus Program has been met, Bobak shall receive a bonus for 2007 in the amount of $600,000 no later than March 1, 2008.\nH.\nNotwithstanding Bobak’s termination of employment, unvested stock option grants made to Bobak in 2005, 2006, and\n2007 shall not terminate and shall vest and become exercisable in accordance with their original schedule; vested stock option grants\nmade to Bobak prior to 2005 shall not terminate and shall remain exercisable for a period of five years following termination of\nemployment (or, if shorter, for their stated terms); vested stock option grants made to Bobak in 2005 and afterwards shall not terminate\nand shall remain exercisable for their stated terms; and restricted stock grants made to Bobak shall not terminate and shall vest in\naccordance with their original terms, but only to the extent that the performance goals related to such grants are achieved. All such\ngrants shall otherwise remain subject to the terms of the applicable plans and agreements under which they were granted.\nI.\nBobak shall be eligible for incentive payments for 2008 and 2009 based on the successful completion of certain key\ninitiatives and the attainment of certain key objectives in the Legal and Industry and Government Affairs Departments, as determined\nby the Chief Executive Officer of Anheuser-Busch in his sole discretion.\n3.\nSeparation Benefits\nA.\nBobak agrees that upon his Termination Date, he will not be entitled to any severance benefits or any retiree life\ninsurance benefits under any benefit plan of Anheuser-Busch Companies, Inc., or any of its subsidiaries.\nB.\nAfter his Termination Date, Bobak will be entitled to elect distribution of his benefits from the Anheuser-Busch Salaried\nEmployees’ Pension Plan (“SEPP”) and the Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (“401(k) Plan”)\npursuant to the terms of those plans. Bobak understands that processing of benefits from the SEPP or the 401(k) Plan will not begin\nuntil he notifies the SEPP or 401(k) Plan Administrator in writing that he wants to receive a distribution of benefits from the respective\nplan. Bobak shall become vested in his accrued benefit under the Anheuser-Busch Supplemental Executive Retirement Plan (“SERP”)\non the Termination Date, and shall receive his distribution under the SERP as a lump sum payment in the amount of\n4\n$1,304,118 on or about the first regularly scheduled business day after January 1, 2013. Bobak will also receive a lump sum payment\nof $1,095,882 on or about the first regularly scheduled business day after January 1, 2013 as payment of additional pension benefits\nhe would have accrued had he remained employed throughout the Consulting Period.\n4.\nNo Admission of Liability\nBobak acknowledges and agrees that he would not receive all the payments and benefits specified in this Agreement except\nfor his execution of this Agreement and his fulfillment of its terms. Neither the making of this Agreement, nor anything contained in it,\nshall in any way be construed or considered to be an admission by Anheuser-Busch of noncompliance with any law or of any other\nwrongdoing.\n5.\nRelease of Liability\nA.\nExcept for any violation of the terms of this Agreement by Anheuser-Busch, Bobak, of his own free will, voluntarily\nreleases and forever discharges Anheuser-Busch from all actions, causes of action, claims, debts, charges, complaints, contracts\n(whether oral or written, express or implied from any source) and promises of any kind, in law or equity, whether known or unknown,\nwhich Bobak, his heirs, executors, administrators, successors and assigns (referred to collectively throughout this Agreement as\n“Bobak”) may have from all time in the past to the effective date of this Agreement, including, but not limited to, all matters or claims\nrelating to or arising out of Bobak’s employment by Anheuser-Busch and the cessation of his employment and including, but not limited\nto, any violation of:\n(1) Title VII of the Civil Rights Act, as amended;\n(2) Sections 1981 through 1988 of Title 42 of the United States Code;\n(3) the Employee Retirement Income Security Act, as amended;\n(4) the Health Insurance Portability and Accountability Act;\n(5) the Family and Medical Leave Act;\n(6) the Age Discrimination in Employment Act, as amended;\n(7) the Americans with Disabilities Act;\n5\n(8) the Missouri Human Rights Act;\n(9) the Sarbanes-Oxley Act of 2002;\n(10) any other local, state or federal law, regulation or ordinance and/or public policy, contract, tort or common law\nhaving any bearing on the terms and conditions and/or cessation of his employment with Anheuser-Busch.\nExcept as otherwise provided in this Agreement, this release shall not apply to any claim for benefits that may be due to Bobak\nor his eligible dependents under any Anheuser-Busch employee benefit plan in which Bobak or his eligible dependents are or were\nparticipants.\nB.\nBobak warrants that he has not caused or permitted to be filed on his behalf any charge, complaint, or action before any\nfederal, state or local administrative agency or court against Anheuser-Busch. In the event that any such claim is asserted in the future,\nBobak agrees that this Agreement will act as a complete bar to his re-employment or to his recovery of any amount from Anheuser-\nBusch resulting, directly or indirectly, from any lawsuit, remedy, charge or complaint whether brought privately by him or by anyone\nelse, including any federal, state or local agency, whether or not on his behalf or at his request.\n6.\nConfidentiality\nA.\nAs a result of his employment with Anheuser-Busch, Bobak has gained valuable confidential information and trade\nsecrets relevant to Anheuser-Busch’s business operations including its information technology. In light of the highly competitive nature\nof the industry in which Anheuser-Busch’s business is conducted, Bobak understands and agrees that he will keep in strict secrecy\nand confidence, and is specifically prohibited from disclosing, any and all unique, confidential and/or proprietary information and\nmaterial belonging or relating to Anheuser-Busch that is not a matter of common knowledge or otherwise generally available to the\npublic including, but not limited to, business, financial, trade, sales, technical or technological information, or corporate sales and\nmarketing strategies, to any entity that competes with Anheuser-Busch. In addition, Bobak agrees that he will not use any such\nconfidential information,\n6\nmaterials or trade secrets for the benefit of any of Anheuser-Busch’s competitors and/or against the best interests of Anheuser-Busch.\nB.\nBobak agrees that he will make no public statements and take no public action that disparages or is detrimental to\nAnheuser-Busch (including without limitation, its directors, officers and employees), or would otherwise cause or contribute to\nAnheuser-Busch being held in disrepute by the general public, customers or employees. Anheuser-Busch Companies, Inc. (including,\nwithout limitation, its directors and officers) agrees that it will take no official public action that is intended to disparage or be\ndetrimental to Bobak. Anheuser-Busch also agrees to provide a mutually agreed-upon letter of reference to Bobak, and to provide a\ncopy of such letter in response to any inquiry to the office of the Anheuser-Busch Companies, Inc. Vice President, Corporate Human\nResources, from a prospective employer regarding Bobak’s employment by Anheuser-Busch.\nC.\nBobak agrees that he has obligations under the Missouri Rules of Professional Conduct, that those obligations will\nsurvive the termination of his employment, and that nothing herein shall be deemed to abridge, impair or waive such obligations.\n7.\nRestrictive Covenants\nA.\nExcept as specifically provided in subparagraph 7B below, or as otherwise agreed to in writing by Anheuser-Busch,\nand upon such terms and conditions as Anheuser-Busch may impose, from the date of the Agreement until December 31, 2012,\nBobak shall not, anywhere in the world, engage, directly or indirectly, in any activity for, or on behalf of, any business or organization\nthat manufactures, sells or distributes alcohol beverages and/or no-alcohol malt beverages, that promotes or encourages any\nrestrictions on, or regulation of, the use, distribution or marketing of alcohol beverages, or that otherwise competes with any current\nbusiness activity of Anheuser-Busch, either alone, as a member of a partnership or association, as an officer, director, employee,\nconsultant, lobbyist or representative of or to any corporation, industry trade association, not-for-profit organization, or other business\nentity, or as an investor in, or\n7\nbeneficial owner of 1% or more of any security of any class of any corporation, or 1% or more of any equity interest of any\nunincorporated enterprise.\nB.\nNotwithstanding the strict prohibitions in paragraph 7A above, Bobak may submit a request for approval in writing to\nthe Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, if he wishes to provide services of any kind\ndescribed in paragraph 7A above. Such written request will be considered by Anheuser-Busch which shall determine, in its sole\ndiscretion, whether such request should be granted.\nC.\nBobak further agrees that he shall not solicit, recruit, or otherwise make contact with or respond to any contact from any\nemployee of Anheuser-Busch, anywhere in the world, for the purpose of engaging or hiring or obtaining, directly or indirectly, the\nemployee’s services by or for another partnership, firm, company or organization.\n8.\nEnforceability and Choice of Law\nA.\nBobak and Anheuser-Busch agree that in the event either party breaches any provision of this Agreement, the sole\nremedy of the other party is the enforcement of the terms of this Agreement.\nB.\nBobak agrees that if he violates any provision of paragraph 6 or 7, or in the event that an arbitrator or court of\ncompetent jurisdiction rules that the restrictive covenants in paragraph 7 are not enforceable (either circumstance will be referred to in\nthis paragraph as an “Event”), he shall forfeit, as of the date of the Event, all remaining consulting payments described in paragraph\n2A, eligibility for Health Benefits described in paragraph 2E, any unpaid bonus described in paragraph 2G, any unexercised stock\noption grants and unvested restricted stock grants described in paragraph 2H, the discretionary incentive payments described in\nparagraph 2I and any remaining payments described in the last two sentences of paragraph 3B. In the event that Anheuser-Busch\nbelieves that Bobak is in violation of paragraph 6 or 7 of this Agreement, Anheuser-Busch shall give Bobak written notice of such\nviolation, and Bobak shall be provided with a reasonable opportunity to cure such violation, discontinue such conduct, or present\ndocumented evidence establishing that the activity\n8\nor employment does not constitute a violation of this Agreement, prior to Anheuser-Busch availing itself of its remedies under this\nparagraph 8. Anheuser-Busch will have the right, at any time, to request that Bobak certify that he is in compliance with paragraphs 6\nand 7, and Bobak’s failure to certify compliance as requested will be deemed to be an Event as defined in this paragraph 8, a material\nviolation, and a material breach of this Agreement. Bobak understands and agrees that any breach of the provisions of paragraphs 6\nor 7 of this Agreement shall constitute a material breach of this Agreement and that Anheuser-Busch, in addition to its right to\nterminate the Agreement, shall be entitled to injunctive and other equitable relief to prevent the threatened or continued breach of this\nAgreement.\nC.\nExcept as otherwise provided in subparagraph 8B above, should Bobak challenge any provision of this Agreement\nand such provision be declared illegal or unenforceable by any arbitrator or court of competent jurisdiction and cannot be modified to\nbe enforceable, such provision will immediately become void, leaving the remainder of this Agreement in effect. However, if any\nportion of the general release (paragraph 5) is ruled to be unenforceable as a result of such challenge, Bobak agrees that Anheuser-\nBusch will be entitled to a set-off against any subsequent judgment or award made to Bobak in the amount of all compensation paid to\nhim by Anheuser-Busch under this Agreement.\nD.\nThe parties have read and fully considered the Agreement and mutually desire to enter into this Agreement. The\nterms of this Agreement are the product of mutual negotiation and compromise between Bobak and Anheuser-Busch. Having elected\nto execute this Agreement, to fulfill the promises and receive the benefits set forth herein, Bobak freely and knowingly, and after due\nconsideration, enters into this Agreement intending to waive, settle, and release all claims he has against Anheuser-Busch as the\neffective date of this Agreement.\nE.\nIt is the parties’ intent and expectation that the insured medical, dental, vision and prescription drug benefits (“Exempt\nBenefits”) provided to Bobak under the terms of this Agreement are exempt from the application of Internal Revenue Code Section\n409A (“Section 409A”) and all regulations and other guidance issued thereunder. In the event that new regulations, interpretations or\nother legal guidance\n9\nchange that assessment, the parties intend that appropriate adjustments will be made to cause the Exempt Benefits to be exempt or, if\nthat is not possible, to cause the Exempt Benefits to comply with Section 409A. It is also the parties’ intent and expectation that all\nforms of compensation provided by this Agreement that are subject to the application of Section 409A (“Nonexempt Benefits”) will fully\ncomply with Section 409A, and in the event that new regulations, interpretations or other legal guidance change that assessment, the\nparties intend that appropriate adjustments will be made to cause the Nonexempt Benefits to comply with Section 409A.\n9.\nMiscellaneous\nA.\nThis Agreement constitutes a Summary of Material Modifications (SMM) that supplements the Eligibility and\nAdministrative Rules Booklet summary plan description previously distributed to Bobak. As an SMM, this Agreement provides Bobak\nwith information about the Group Insurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries that\nis in addition to that contained in Bobak’s Eligibility and Administrative Rules Booklet summary plan description and prior SMMs.\nB.\nBobak acknowledges that he has been advised by Anheuser-Busch that there may be substantial federal and state\nincome tax consequences for Bobak as a result of entering into this Agreement, and that he should seek professional tax and legal\nadvice before doing so. Bobak further acknowledges that he has not been provided with any advice on the tax effects of this\nAgreement by Anheuser-Busch or any of its employees or agents.\nC.\nAnheuser-Busch and Bobak agree that all disputes between the parties relating to or arising out of: (a) this\nAgreement; (b) Bobak’s employment with Anheuser-Busch; and/or (c) the cessation of Bobak’s employment with Anheuser-Busch\nmust be resolved through the Anheuser-Busch Dispute Resolution Program, which includes final and binding arbitration of covered\nclaims. Bobak acknowledges that he has previously signed a “Mutual Agreement to Arbitrate Claims,” the terms of which are\nincorporated into this Agreement by this reference and remain binding on the parties. An executed copy of the Mutual Agreement to\nArbitrate Claims is attached hereto. Notwithstanding\n10\nanything to the contrary contained herein, Anheuser-Busch shall be entitled to seek enforcement of the provisions of paragraphs 6 and\n7 in a court of competent jurisdiction.\n10.\nNotices\nUnless otherwise provided, all notices, requests, consents and other communications required or permitted under this\nAgreement must be in writing and must be hand-delivered or mailed, addressed as follows, or to such other address as may be\nprovided by the respective parties to this Agreement:\nIf to Anheuser-Busch:\nAnheuser-Busch Companies, Inc.\nOne Busch Place\nSt. Louis, MO 63118\nAttn.: Vice President, Corporate Human Resources\nIf to Mr. Bobak:\nMr. Mark T. Bobak\nAt his address on record with Anheuser-Busch\n11.\nThe validity of this Agreement shall be governed by and construed according to the law of the State of Missouri. This\nAgreement and the exhibits thereto constitute the entire and exclusive agreement between Bobak and Anheuser-Busch with respect to\nBobak’s employment status and any rights and duties owed by Anheuser-Busch to Bobak and, except as otherwise provided in this\nAgreement, it supersedes all previous or contemporaneous negotiations, commitments, agreements, statements, representations, or\npromises, oral or written. This Agreement may not be modified except in a writing signed by both parties.\n12.\nBOBAK STATES THAT HE HAS CAREFULLY READ THIS “CONSULTING AND NON-DISCLOSURE AGREEMENT AND\nGENERAL RELEASE,” THAT HE KNOWS AND UNDERSTANDS ITS CONTENTS AND THAT HE IS ENTERING INTO THIS\nAGREEMENT AS HIS OWN FREE ACT AND DEED. BOBAK FURTHER REPRESENTS AND AGREES THAT:\n·\nHE HAS BEEN ADVISED BY ANHEUSER-BUSCH TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS\nAGREEMENT;\n11\n·\nHE FULLY UNDERSTANDS THAT HIS EXECUTION OF THIS AGREEMENT CONSTITUTES A FULL AND FINAL\nRELEASE OF ALL CLAIMS HE MAY HAVE AGAINST ANHEUSER-BUSCH AS OF THE EFFECTIVE DATE OF THE\nAGREEMENT WITH FINAL AND BINDING EFFECT;\n·\nHE HAS BEEN GIVEN AT LEAST 21 DAYS TO CONSIDER THIS AGREEMENT;\n·\nFOR A PERIOD OF 7 DAYS FROM THE DATE HE SIGNS THIS AGREEMENT, BOBAK MAY REVOKE THIS\nAGREEMENT BY NOTIFYING ANHEUSER-BUSCH IN WRITING OF HIS INTENT TO DO SO; AND\n·\nTHIS AGREEMENT WILL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS\nEXPIRED.\nTHIS AGREEMENT IS SUBJECT TO A BINDING ARBITRATION AGREEMENT, WHICH MAY BE ENFORCED BY THE PARTIES.\nThe parties to this Consulting and Non-Disclosure Agreement and General Release now voluntarily and knowingly execute this\nAgreement.\nANHEUSER-BUSCH COMPANIES, INC.,\nBy: /s/ John T. Farrell\nDate: 12/10/07\nVice President, Corporate Human Resources\n/s/ Mark T. Bobak\nDate: 12/10/07\nMARK T. BOBAK\n12	EX-10.30 8 ex10p30.htm\nExhibit 10.30\nCONSULTING AND NON-DISCLOSURE AGREEMENT\nAND GENERAL RELEASE\nANHEUSER-BUSCH COMPANIES, INC., a Delaware corporation with its principal offices at One Busch Place, St. Louis,\nMissouri, 63118, its affiliates, subsidiaries, divisions, successors and assigns, and their directors, officers, employees and agents, both\nin their official and individual capacities (all of whom are collectively referred to throughout this Consulting and Non-Disclosure\nAgreement and General Release as “Anheuser-Busch”), and MARK T. BOBAK (“Bobak”), residing in St. Louis, Missouri, mutually\ndesire to enter into this Consulting and Non-Disclosure Agreement and General Release (“Agreement”) and agree as follows:\n1. Termination of Employment\nBobak agrees to terminate employment with Anheuser-Busch on December 31, 2007, (“Termination Date”) in order to allow him\nto return to the private practice of law.\n2. Consulting_ Payments\nAnheuser-Busch agrees that during the period from the Termination Date through December 31, 2012 (the “Consulting\nPeriod”), so long as Bobak fulfills any assigned duties and complies with all Anheuser-Busch policies and the provisions of this\nAgreement:\nA. Bobak will be paid a consulting fee of $52,884 per month. All consulting payments shall be payable in semi-monthly\ninstallments on the 15" and last day of each month, less applicable withholding. In the event that Bobak dies prior to December 31,\n2012, Anheuser-Busch agrees to pay any remaining consulting payments due under this Agreement to Bobak’s spouse unless\notherwise directed in writing by Bobak.\nB. Bobak agrees to devote the time necessary to complete any projects assigned to him by the Chief Executive Officer or\nhis designee. Anheuser-Busch will provide reasonable advance notice to Bobak of any work assignments, and will take into\nconsideration Bobak’s other commitments. Bobak also agrees that he will fully\ncooperate with any request made by Anheuser-Busch relating to or arising out of corporate transactions, labor relations, government\naffairs, litigation or any other matter that Bobak worked on, learned of, or became familiar with during his employment with Anheuser-\nBusch. Bobak will work from his personal residence or office and will not be provided with a company office or reserved parking\nspot. Bobak may retain his Blackberry/cell phone, computer, home fax machine, and company e-mail address for purposes of\nperforming services contemplated by this Agreement. Such items will be returned upon request by Anheuser-Busch. Subject to the\nprovisions of this Agreement and provided there is no interference with Bobak’s efforts as requested by Anheuser-Busch, Bobak may\nprovide services to other employers at any time after the Termination Date. Bobak agrees to provide to the Chief Executive Officer a\nreport of all projects and assignments that he is working on for Anheuser-Busch on a quarterly basis.\nC. Anheuser-Busch will reimburse Bobak, pursuant to company expense reimbursement guidelines, for all ordinary,\nnecessary and reasonable business expenses incurred by Bobak while conducting assignments for Anheuser-Busch at the direction of\nthe Chief Executive Officer or his designee.\nD. Except as otherwise provided in this Agreement, Bobak agrees to return all Anheuser-Busch property (including, but\nnot limited to, company documents and records, whether in electronic or paper format, and all copies thereof, computers, cell phones,\nblackberries, fax machines, pagers, security badge and credit cards) on or before the Termination Date.\nE. Anheuser-Busch will continue to provide Bobak and his eligible dependents with health care benefits as described\nherein (“Health Benefits”). Until Bobak reaches the age of 58, he and his eligible dependents will continue to participate in the Group\nInsurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries (“Group Insurance Plan”), except that\nhis benefits under the Group Insurance Plan will be limited to insured medical, dental, vision and prescription drug benefits (“Health\nBenefits”) that are materially similar to the health benefits provided from time to time to Anheuser-Busch full-time salaried employees,\nand subject to the same benefit limits, co-payments, premium payments and deductibles. Upon Bobak\n2\nreaching age 58, he and his eligible dependents will participate in the Group Insurance Plan for Certain Retirees of Anheuser-Busch\n(Retiree Insurance Plan), except that the Health Benefits will be limited to those that are materially similar to the health benefits\nprovided from time to time to Anheuser-Busch retirees and subject to the same benefits limits, co-payments, premium payments and\ndeductibles. The selection of insurance carriers to provide the Health Benefits shall be in the sole discretion of Anheuser-Busch\nCompanies, Inc. The Health Benefits provided to Bobak during the Consulting Period shall, for purposes of coordination of benefits, be\nsecondary to any subsequent benefit coverage(s) for which Bobak, his spouse and eligible dependents become eligible as a result of\nBobak becoming an employee for any other employer. Bobak agrees that in the event he obtains new employment during the\nConsulting Period, he shall notify the Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, in writing within\n30 days after he first becomes eligible for any health benefit coverage through any subsequent employer(s) and will provide Anheuser-\nBusch with a copy of the summary plan descriptions for such coverage(s).\nF. Except as otherwise specifically provided herein, during the Consulting Period Bobak will not be eligible for any\nbenefits from Anheuser-Busch Companies, Inc., or any of its subsidiaries, including, but not limited to, the following:\ni) long-term disability insurance coverage;\ni)  short-term disability coverage;\niiiy  life insurance or retiree life insurance;\niv)  paid sick days;\nv)  health care and/or dependent care spending account benefits;\nvi)  legal assistance benefits;\nvii)  country club membership;\nviii)  monthly beer tickets and/or other complimentary beer; and\nix)  access to, or use of, the executive dining room, fitness center or barber shop.\nG. Subject to review by the Compensation Committee of the audited financial statements and its certification that the\nperformance goal set forth in the 2007 Officer\n3\nBonus Program has been met, Bobak shall receive a bonus for 2007 in the amount of $600,000 no later than March 1, 2008.\nH. Notwithstanding Bobak’s termination of employment, unvested stock option grants made to Bobak in 2005, 2006, and\n2007 shall not terminate and shall vest and become exercisable in accordance with their original schedule; vested stock option grants\nmade to Bobak prior to 2005 shall not terminate and shall remain exercisable for a period of five years following termination of\nemployment (or, if shorter, for their stated terms); vested stock option grants made to Bobak in 2005 and afterwards shall not terminate\nand shall remain exercisable for their stated terms; and restricted stock grants made to Bobak shall not terminate and shall vest in\naccordance with their original terms, but only to the extent that the performance goals related to such grants are achieved. All such\ngrants shall otherwise remain subject to the terms of the applicable plans and agreements under which they were granted.\nl. Bobak shall be eligible for incentive payments for 2008 and 2009 based on the successful completion of certain key\ninitiatives and the attainment of certain key objectives in the Legal and Industry and Government Affairs Departments, as determined\nby the Chief Executive Officer of Anheuser-Busch in his sole discretion.\n3. Separation Benefits\nA. Bobak agrees that upon his Termination Date, he will not be entitled to any severance benefits or any retiree life\ninsurance benefits under any benefit plan of Anheuser-Busch Companies, Inc., or any of its subsidiaries.\nB. After his Termination Date, Bobak will be entitled to elect distribution of his benefits from the Anheuser-Busch Salaried\nEmployees’ Pension Plan (“SEPP”) and the Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (“401(k) Plan”)\npursuant to the terms of those plans. Bobak understands that processing of benefits from the SEPP or the 401(k) Plan will not begin\nuntil he notifies the SEPP or 401(k) Plan Administrator in writing that he wants to receive a distribution of benefits from the respective\nplan. Bobak shall become vested in his accrued benefit under the Anheuser-Busch Supplemental Executive Retirement Plan (“SERP”)\non the Termination Date, and shall receive his distribution under the SERP as a lump sum payment in the amount of\n4\n$1,304,118 on or about the first regularly scheduled business day after January 1, 2013. Bobak will also receive a lump sum payment\nof $1,095,882 on or about the first regularly scheduled business day after January 1, 2013 as payment of additional pension benefits\nhe would have accrued had he remained employed throughout the Consulting Period.\n4. No Admission of Liability\nBobak acknowledges and agrees that he would not receive all the payments and benefits specified in this Agreement except\nfor his execution of this Agreement and his fulfillment of its terms. Neither the making of this Agreement, nor anything contained in it,\nshall in any way be construed or considered to be an admission by Anheuser-Busch of noncompliance with any law or of any other\nwrongdoing.\n5. Release of Liability\nA. Except for any violation of the terms of this Agreement by Anheuser-Busch, Bobak, of his own free will, voluntarily\nreleases and forever discharges Anheuser-Busch from all actions, causes of action, claims, debts, charges, complaints, contracts\n(whether oral or written, express or implied from any source) and promises of any kind, in law or equity, whether known or unknown,\nwhich Bobak, his heirs, executors, administrators, successors and assigns (referred to collectively throughout this Agreement as\n“Bobak”) may have from all time in the past to the effective date of this Agreement, including, but not limited to, all matters or claims\nrelating to or arising out of Bobak’s employment by Anheuser-Busch and the cessation of his employment and including, but not limited\nto, any violation of:\n \n(1) Title VIl of the Civil Rights Act, as amended,;\n(2) Sections 1981 through 1988 of Title 42 of the United States Code;\n(3) the Employee Retirement Income Security Act, as amended;\n(4) the Health Insurance Portability and Accountability Act;\n(5) the Family and Medical Leave Act;\n(6) the Age Discrimination in Employment Act, as amended,;\n(7) the Americans with Disabilities Act;\n(8) the Missouri Human Rights Act;\n(9) the Sarbanes-Oxley Act of 2002;\n(10) any other local, state or federal law, regulation or ordinance and/or public policy, contract, tort or common law\nhaving any bearing on the terms and conditions and/or cessation of his employment with Anheuser-Busch.\nExcept as otherwise provided in this Agreement, this release shall not apply to any claim for benefits that may be due to Bobak\nor his eligible dependents under any Anheuser-Busch employee benefit plan in which Bobak or his eligible dependents are or were\nparticipants.\nB. Bobak warrants that he has not caused or permitted to be filed on his behalf any charge, complaint, or action before any\nfederal, state or local administrative agency or court against Anheuser-Busch. In the event that any such claim is asserted in the future,\nBobak agrees that this Agreement will act as a complete bar to his re-employment or to his recovery of any amount from Anheuser-\nBusch resulting, directly or indirectly, from any lawsuit, remedy, charge or complaint whether brought privately by him or by anyone\nelse, including any federal, state or local agency, whether or not on his behalf or at his request.\n6. Confidentiality\nA. As a result of his employment with Anheuser-Busch, Bobak has gained valuable confidential information and trade\nsecrets relevant to Anheuser-Busch’s business operat|0ns including its information technology. In light of the highly compet|t|ve nature\nof the industry in which Anheuser-Busch’s business is conducted, Bobak understands and agrees that he will keep in strict secrecy\nand confidence, and is specifically prohibited from disclosing, any and all unique, confidential and/or proprietary information and\nmaterial belonging or relating to Anheuser-Busch that is not a matter of common knowledge or otherwise generally available to the\npublic including, but not limited to, business, financial, trade, sales, technical or technological information, or corporate sales and\nmarketing strategies, to any entity that competes with Anheuser-Busch. In addition, Bobak agrees that he will not use any such\nconfidential information,\n6\nmaterials or trade secrets for the benefit of any of Anheuser-Busch’'s competitors and/or against the best interests of Anheuser-Busch.\nB. Bobak agrees that he will make no public statements and take no public action that disparages or is detrimental to\nAnheuser-Busch (including without limitation, its directors, officers and employees), or would otherwise cause or contribute to\nAnheuser-Busch being held in disrepute by the general public, customers or employees. Anheuser-Busch Companies, Inc. (including,\nwithout limitation, its directors and officers) agrees that it will take no official public action that is intended to disparage or be\ndetrimental to Bobak. Anheuser-Busch also agrees to provide a mutually agreed-upon letter of reference to Bobak, and to provide a\ncopy of such letter in response to any inquiry to the office of the Anheuser-Busch Companies, Inc. Vice President, Corporate Human\nResources, from a prospective employer regarding Bobak's employment by Anheuser-Busch.\nC. Bobak agrees that he has obligations under the Missouri Rules of Professional Conduct, that those obligations will\nsurvive the termination of his employment, and that nothing herein shall be deemed to abridge, impair or waive such obligations.\n7. Restrictive Covenants\nA. Except as specifically provided in subparagraph 7B below, or as otherwise agreed to in writing by Anheuser-Busch,\nand upon such terms and conditions as Anheuser-Busch may impose, from the date of the Agreement until December 31, 2012,\nBobak shall not, anywhere in the world, engage, directly or indirectly, in any activity for, or on behalf of, any business or organization\nthat manufactures, sells or distributes alcohol beverages and/or no-alcohol malt beverages, that promotes or encourages any\nrestrictions on, or regulation of, the use, distribution or marketing of alcohol beverages, or that otherwise competes with any current\nbusiness activity of Anheuser-Busch, either alone, as a member of a partnership or association, as an officer, director, employee,\nconsultant, lobbyist or representative of or to any corporation, industry trade association, not-for-profit organization, or other business\nentity, or as an investor in, or\n7\nbeneficial owner of 1% or more of any security of any class of any corporation, or 1% or more of any equity interest of any\nunincorporated enterprise.\nB. Notwithstanding the strict prohibitions in paragraph 7A above, Bobak may submit a request for approval in writing to\nthe Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, if he wishes to provide services of any kind\ndescribed in paragraph 7A above. Such written request will be considered by Anheuser-Busch which shall determine, in its sole\ndiscretion, whether such request should be granted.\nC. Bobak further agrees that he shall not solicit, recruit, or otherwise make contact with or respond to any contact from any\nemployee of Anheuser-Busch, anywhere in the world, for the purpose of engaging or hiring or obtaining, directly or indirectly, the\nemployee’s services by or for another partnership, firm, company or organization.\n8. Enforceability and Choice of Law\nA. Bobak and Anheuser-Busch agree that in the event either party breaches any provision of this Agreement, the sole\nremedy of the other party is the enforcement of the terms of this Agreement.\nB. Bobak agrees that if he violates any provision of paragraph 6 or 7, or in the event that an arbitrator or court of\ncompetent jurisdiction rules that the restrictive covenants in paragraph 7 are not enforceable (either circumstance will be referred to in\nthis paragraph as an “Event”), he shall forfeit, as of the date of the Event, all remaining consulting payments described in paragraph\n2A, eligibility for Health Benefits described in paragraph 2E, any unpaid bonus described in paragraph 2G, any unexercised stock\noption grants and unvested restricted stock grants described in paragraph 2H, the discretionary incentive payments described in\nparagraph 21 and any remaining payments described in the last two sentences of paragraph 3B. In the event that Anheuser-Busch\nbelieves that Bobak is in violation of paragraph 6 or 7 of this Agreement, Anheuser-Busch shall give Bobak written notice of such\nviolation, and Bobak shall be provided with a reasonable opportunity to cure such violation, discontinue such conduct, or present\ndocumented evidence establishing that the activity\n8\nor employment does not constitute a violation of this Agreement, prior to Anheuser-Busch availing itself of its remedies under this\nparagraph 8. Anheuser-Busch will have the right, at any time, to request that Bobak certify that he is in compliance with paragraphs 6\nand 7, and Bobak’s failure to certify compliance as requested will be deemed to be an Event as defined in this paragraph 8, a material\nviolation, and a material breach of this Agreement. Bobak understands and agrees that any breach of the provisions of paragraphs 6\nor 7 of this Agreement shall constitute a material breach of this Agreement and that Anheuser-Busch, in addition to its right to\nterminate the Agreement, shall be entitled to injunctive and other equitable relief to prevent the threatened or continued breach of this\nAgreement.\nC. Except as otherwise provided in subparagraph 8B above, should Bobak challenge any provision of this Agreement\nand such provision be declared illegal or unenforceable by any arbitrator or court of competent jurisdiction and cannot be modified to\nbe enforceable, such provision will immediately become void, leaving the remainder of this Agreement in effect. However, if any\nportion of the general release (paragraph 5) is ruled to be unenforceable as a result of such challenge, Bobak agrees that Anheuser-\nBusch will be entitled to a set-off against any subsequent judgment or award made to Bobak in the amount of all compensation paid to\nhim by Anheuser-Busch under this Agreement.\nD. The parties have read and fully considered the Agreement and mutually desire to enter into this Agreement. The\nterms of this Agreement are the product of mutual negotiation and compromise between Bobak and Anheuser-Busch. Having elected\nto execute this Agreement, to fulfill the promises and receive the benefits set forth herein, Bobak freely and knowingly, and after due\nconsideration, enters into this Agreement intending to waive, settle, and release all claims he has against Anheuser-Busch as the\neffective date of this Agreement.\nE. It is the parties’ intent and expectation that the insured medical, dental, vision and prescription drug benefits (“Exempt\nBenefits”) provided to Bobak under the terms of this Agreement are exempt from the application of Internal Revenue Code Section\n409A (“Section 409A") and all regulations and other guidance issued thereunder. In the event that new regulations, interpretations or\nother legal guidance\n9\nchange that assessment, the parties intend that appropriate adjustments will be made to cause the Exempt Benefits to be exempt or, if\nthat is not possible, to cause the Exempt Benefits to comply with Section 409A. It is also the parties’ intent and expectation that all\nforms of compensation provided by this Agreement that are subject to the application of Section 409A (“Nonexempt Benefits”) will fully\ncomply with Section 409A, and in the event that new regulations, interpretations or other legal guidance change that assessment, the\nparties intend that appropriate adjustments will be made to cause the Nonexempt Benefits to comply with Section 409A.\n9. Miscellaneous\nA. This Agreement constitutes a Summary of Material Modifications (SMM) that supplements the Eligibility and\nAdministrative Rules Booklet summary plan description previously distributed to Bobak. As an SMM, this Agreement provides Bobak\nwith information about the Group Insurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries that\nis in addition to that contained in Bobak’s Eligibility and Administrative Rules Booklet summary plan description and prior SMMs.\nB. Bobak acknowledges that he has been advised by Anheuser-Busch that there may be substantial federal and state\nincome tax consequences for Bobak as a result of entering into this Agreement, and that he should seek professional tax and legal\nadvice before doing so. Bobak further acknowledges that he has not been provided with any advice on the tax effects of this\nAgreement by Anheuser-Busch or any of its employees or agents.\nC. Anheuser-Busch and Bobak agree that all disputes between the parties relating to or arising out of: (a) this\nAgreement; (b) Bobak's employment with Anheuser-Busch; and/or (c) the cessation of Bobak's employment with Anheuser-Busch\nmust be resolved through the Anheuser-Busch Dispute Resolution Program, which includes final and binding arbitration of covered\nclaims. Bobak acknowledges that he has previously signed a “Mutual Agreement to Arbitrate Claims,” the terms of which are\nincorporated into this Agreement by this reference and remain binding on the parties. An executed copy of the Mutual Agreement to\nArbitrate Claims is attached hereto. Notwithstanding\n10\nanything to the contrary contained herein, Anheuser-Busch shall be entitled to seek enforcement of the provisions of paragraphs 6 and\n7 in a court of competent jurisdiction.\n10. Notices\nUnless otherwise provided, all notices, requests, consents and other communications required or permitted under this\nAgreement must be in writing and must be hand-delivered or mailed, addressed as follows, or to such other address as may be\nprovided by the respective parties to this Agreement:\nIf to Anheuser-Busch:\nAnheuser-Busch Companies, Inc.\nOne Busch Place\nSt. Louis, MO 63118\nAttn.: Vice President, Corporate Human Resources\nIf to Mr. Bobak:\nMr. Mark T. Bobak\nAt his address on record with Anheuser-Busch\n11. The validity of this Agreement shall be governed by and construed according to the law of the State of Missouri. This\nAgreement and the exhibits thereto constitute the entire and exclusive agreement between Bobak and Anheuser-Busch with respect to\nBobak’s employment status and any rights and duties owed by Anheuser-Busch to Bobak and, except as otherwise provided in this\nAgreement, it supersedes all previous or contemporaneous negotiations, commitments, agreements, statements, representations, or\npromises, oral or written. This Agreement may not be modified except in a writing signed by both parties.\n12. BOBAK STATES THAT HE HAS CAREFULLY READ THIS “CONSULTING AND NON-DISCLOSURE AGREEMENT AND\nGENERAL RELEASE,” THAT HE KNOWS AND UNDERSTANDS ITS CONTENTS AND THAT HE IS ENTERING INTO THIS\nAGREEMENT AS HIS OWN FREE ACT AND DEED. BOBAK FURTHER REPRESENTS AND AGREES THAT:\nHE HAS BEEN ADVISED BY ANHEUSER-BUSCH TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS\nAGREEMENT;\n11\nHE FULLY UNDERSTANDS THAT HIS EXECUTION OF THIS AGREEMENT CONSTITUTES A FULL AND FINAL\nRELEASE OF ALL CLAIMS HE MAY HAVE AGAINST ANHEUSER-BUSCH AS OF THE EFFECTIVE DATE OF THE\nAGREEMENT WITH FINAL AND BINDING EFFECT;\nHE HAS BEEN GIVEN AT LEAST 21 DAYS TO CONSIDER THIS AGREEMENT;\nFOR A PERIOD OF 7 DAYS FROM THE DATE HE SIGNS THIS AGREEMENT, BOBAK MAY REVOKE THIS\nAGREEMENT BY NOTIFYING ANHEUSER-BUSCH IN WRITING OF HIS INTENT TO DO SO; AND\nTHIS AGREEMENT WILL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS\nEXPIRED.\nTHIS AGREEMENT IS SUBJECT TO A BINDING ARBITRATION AGREEMENT, WHICH MAY BE ENFORCED BY THE PARTIES.\nThe parties to this Consulting and Non-Disclosure Agreement and General Release now voluntarily and knowingly execute this\nAgreement.\nANHEUSER-BUSCH COMPANIES, INC.,\nBy: _/s/ John T. Farrell Date: __12/10/07\nVice President, Corporate Human Resources\n/s/ Mark T. Bobak Date: _ 12/10/07\nMARK T. BOBAK\n12	EX-10.30 ex10p30.htm\nExhibit 10.30\nCONSULTING AND NON-DISCLOSURE AGREEMENT\nAND GENERAL RELEASE\nANHEUSER-BUSCH COMPANIES, INC., a Delaware corporation with its principal offices at One Busch Place, St. Louis,\nMissouri, 63118, its affiliates, subsidiaries, divisions, successors and assigns, and their directors, officers, employees and agents, both\nin\ntheir official and individual capacities (all of whom are collectively referred to throughout this Consulting and Non-Disclosure\nAgreement and General Release as "Anheuser-Busch"), and MARK T. BOBAK ("Bobak"), residing in St. Louis, Missouri, mutually\ndesire to enter into this Consulting and Non-Disclosure Agreement and General Release ("Agreement") and agree as follows:\n1.\nTermination of Employment\nBobak agrees to terminate employment with Anheuser-Busch on December 31, 2007, ("Termination Date") in order to allow him\nto return to the private practice of law.\n2.\nConsulting Payments\nAnheuser-Busch agrees that during the period from the Termination Date through December 31, 2012 (the "Consulting\nPeriod"), SO long as Bobak fulfills any assigned duties and complies with all Anheuser-Busch policies and the provisions of this\nAgreement:\nA.\nBobak will be paid a consulting fee of $52,884 per month. All consulting payments shall be payable in semi-monthly\ninstallments on the 15th and last day of each month, less applicable withholding. In the event that Bobak dies prior to December 31,\n2012, Anheuser-Busch agrees to pay any remaining consulting payments due under this Agreement to Bobak's spouse unless\notherwise directed in writing by Bobak.\nB.\nBobak agrees to devote the time necessary to complete any projects assigned to him by the Chief Executive Officer or\nhis designee. Anheuser-Busch will provide reasonable advance notice to Bobak of any work assignments, and will take into\nconsideration Bobak's other commitments. Bobak also agrees that he will fully\ncooperate with any request made by Anheuser-Busch relating to or arising out of corporate transactions, labor relations, government\naffairs, litigation or any other matter that Bobak worked on, learned of, or became familiar with during his employment with Anheuser-\nBusch. Bobak will work from his personal residence or office and will not be provided with a company office or reserved parking\nspot. Bobak may retain his Blackberry/cell phone, computer, home fax machine, and company e-mail address for purposes of\nperforming services contemplated by this Agreement. Such items will be returned upon request by Anheuser-Busch. Subject to the\nprovisions of this Agreement and provided there is no interference with Bobak's efforts as requested by Anheuser-Busch Bobak may\nprovide services to other employers at any time after the Termination Date. Bobak agrees to provide to the Chief Executive Officer\na\nreport of all projects and assignments that he is working on for Anheuser-Busch on a quarterly basis.\nC.\nAnheuser-Busch will reimburse Bobak, pursuant to company expense reimbursement guidelines, for all\nordinary,\nnecessary and reasonable business expenses incurred by Bobak while conducting assignments for Anheuser-Busch at the direction of\nthe Chief Executive Officer or his designee.\nD.\nExcept as otherwise provided in this Agreement, Bobak agrees to return all Anheuser-Busch property (including, but\nnot limited to, company documents and records, whether in electronic or paper format, and all copies thereof, computers, cell phones,\nblackberries, fax machines, pagers, security badge and credit cards) on or before the Termination Date.\nE.\nAnheuser-Busch will continue to provide Bobak and his eligible dependents with health care benefits as described\nherein ("Health Benefits"). Until Bobak reaches the age of 58, he and his eligible dependents will continue to participate in the Group\nInsurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries ("Group Insurance Plan"), except that\nhis benefits under the Group Insurance Plan will be limited to insured medical, dental, vision and prescription drug benefits ("Health\nBenefits") that are materially similar to the health benefits provided from time to time to Anheuser-Busch full-time salaried employees,\nand subject to the same benefit limits, co-payments, premium payments and deductibles. Upon Bobak\n2\nreaching age 58, he and his eligible dependents will participate in the Group Insurance Plan for Certain Retirees of Anheuser-Busch\n(Retiree Insurance Plan), except that the Health Benefits will be limited to those that are materially similar to the health benefits\nprovided from time to time to Anheuser-Busch retirees and subject to the same benefits limits, co-payments, premium payments and\ndeductibles. The selection of insurance carriers to provide the Health Benefits shall be in the sole discretion of Anheuser-Busch\nCompanies, Inc. The Health Benefits provided to Bobak during the Consulting Period shall, for purposes of coordination of benefits, be\nsecondary to any subsequent benefit coverage(s) for which Bobak, his spouse and eligible dependents become eligible as a result of\nBobak becoming an employee for any other employer. Bobak agrees that in the event he obtains new employment during the\nConsulting Period, he shall notify the Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, in writing within\n30 days after he first becomes eligible for any health benefit coverage through any subsequent employer(s) and will provide Anheuser-\nBusch with a copy of the summary plan descriptions for such coverage(s).\nF.\nExcept as otherwise specifically provided herein, during the Consulting Period Bobak will not be eligible for any\nbenefits from Anheuser-Busch Companies, Inc., or any of its subsidiaries, including, but not limited to, the following:\ni)\nlong-term disability insurance coverage;\nii)\nshort-term disability coverage;\niii)\nlife insurance or retiree life insurance;\niv)\npaid sick days;\nV)\nhealth care and/or dependent care spending account benefits;\nvi)\nlegal assistance benefits;\nvii)\ncountry club membership;\nviii)\nmonthly beer tickets and/or other complimentary beer; and\nix)\naccess to, or use of, the executive dining room, fitness center or barber shop.\nG.\nSubject to review by the Compensation Committee of the audited financial statements and its certification that the\nperformance goal set forth in the 2007 Officer\n3\nBonus Program has been met, Bobak shall receive a bonus for 2007 in the amount of $600,000 no later than March 1, 2008.\nH.\nNotwithstanding Bobak's termination of employment, unvested stock option grants made to Bobak in 2005, 2006, and\n2007 shall not terminate and shall vest and become exercisable in accordance with their original schedule; vested stock option grants\nmade to Bobak prior to 2005 shall not terminate and shall remain exercisable for a period of five years following termination of\nemployment (or, if shorter, for their stated terms); vested stock option grants made to Bobak in 2005 and afterwards shall not terminate\nand shall remain exercisable for their stated terms; and restricted stock grants made to Bobak shall not terminate and shall vest\nin\naccordance with their original terms, but only to the extent that the performance goals related to such grants are achieved. All such\ngrants shall otherwise remain subject to the terms of the applicable plans and agreements under which they were granted.\nI.\nBobak shall be eligible for incentive payments for 2008 and 2009 based on the successful completion of certain key\ninitiatives and the attainment of certain key objectives in the Legal and Industry and Government Affairs Departments, as determined\nby the Chief Executive Officer of Anheuser-Busch in his sole discretion.\n3.\nSeparation Benefits\nA.\nBobak agrees that upon his Termination Date, he will not be entitled to any severance benefits or any retiree life\ninsurance benefits under any benefit plan of Anheuser-Busch Companies, Inc., or any of its subsidiaries.\nB.\nAfter his Termination Date, Bobak will be entitled to elect distribution of his benefits from the Anheuser-Busch Salaried\nEmployees' Pension Plan ("SEPP") and the Anheuser-Busch Deferred Income Stock Purchase and Savings Plan ("401(k) Plan")\npursuant\nto\nthe terms of those plans. Bobak understands that processing of benefits from the SEPP or the 401(k) Plan will not begin\nuntil he notifies the SEPP or 401(k) Plan Administrator in writing that he wants to receive a distribution of benefits from the respective\nplan. Bobak shall become vested in his accrued benefit under the Anheuser-Busch Supplemental Executive Retirement Plan ("SERP")\non the Termination Date, and shall receive his distribution under the SERP as a lump sum payment in the amount of\n4\n$1,304,118 on or about the first regularly scheduled business day after January 1, 2013. Bobak will also receive a lump sum payment\nof $1,095,882 on or about the first regularly scheduled business day after January 1, 2013 as payment of additional pension benefits\nhe would have accrued had he remained employed throughout the Consulting Period.\n4.\nNo Admission of Liability.\nBobak acknowledges and agrees that he would not receive all the payments and benefits specified in this Agreement except\nfor his execution of this Agreement and his fulfillment of its terms. Neither the making of this Agreement, nor anything contained in it,\nshall in any way be construed or considered to be an admission by Anheuser-Busch of noncompliance with any law or of any other\nwrongdoing.\n5.\nRelease of Liability.\nA.\nExcept for any violation of the terms of this Agreement by Anheuser-Busch, Bobak, of his own free will, voluntarily\nreleases and forever discharges Anheuser-Busch from all actions, causes of action, claims, debts, charges, complaints, contracts\n(whether oral or written, express or implied from any source) and promises of any kind, in law or equity, whether known or unknown,\nwhich Bobak, his heirs, executors, administrators, successors and assigns (referred to collectively throughout this Agreement as\n"Bobak") may have from all time in the past to the effective date of this Agreement, including, but not limited to, all matters or claims\nrelating to or arising out of Bobak's employment by Anheuser-Busch and the cessation of his employment and including, but not limited\nto, any violation of:\n(1)\nTitle VII of the Civil Rights Act, as amended;\n(2)\nSections 1981 through 1988 of Title 42 of the United States Code;\n(3)\nthe Employee Retirement Income Security. Act, as amended;\n(4)\nthe Health Insurance Portability and Accountability. Act;\n(5)\nthe Family. and Medical Leave Act;\n(6)\nthe Age Discrimination in Employment Act, as amended;\n(7)\nthe Americans with Disabilities Act;\n5\n(8)\nthe Missouri Human Rights Act;\n(9)\nthe Sarbanes-Oxley. Act of 2002;\n(10) any other local, state or federal law, regulation or ordinance and/or public policy, contract, tort or common law\nhaving any bearing on the terms and conditions and/or cessation of his employment with Anheuser-Busch.\nExcept as otherwise provided in this Agreement, this release shall not apply to any claim for benefits that may be due to Bobak\nor his eligible dependents under any Anheuser-Busch employee benefit plan in which Bobak or his eligible dependents are or were\nparticipants.\nB.\nBobak warrants that he has not caused or permitted to be filed on his behalf any charge, complaint, or action before any\nfederal, state or local administrative agency or court against Anheuser-Busch. In the event that any such claim is asserted in the future,\nBobak agrees that this Agreement will act as a complete bar to his re-employment or to his recovery of any amount from Anheuser-\nBusch resulting, directly or indirectly, from any lawsuit, remedy, charge or complaint whether brought privately by him or by anyone\nelse, including any federal, state or local agency, whether or not on his behalf or at his request.\n6.\nConfidentiality.\nA.\nAs a result of his employment with Anheuser-Busch, Bobak has gained valuable confidential information and trade\nsecrets relevant to Anheuser-Busch's business operations including its information technology. In light of the highly competitive nature\nof the industry in which Anheuser-Busch's business is conducted, Bobak understands and agrees that he will keep in strict secrecy\nand confidence, and is specifically prohibited from disclosing, any and all unique, confidential and/or proprietary information and\nmaterial belonging or relating to Anheuser-Busch that is not a matter of common knowledge or otherwise generally available to the\npublic including, but not limited to, business, financial, trade, sales, technical or technological information, or corporate sales and\nmarketing strategies, to any entity that competes with Anheuser-Busch. In addition, Bobak agrees that he will not use any such\nconfidential information,\n6\nmaterials or trade secrets for the benefit of any of Anheuser-Busch's competitors and/or against the best interests of Anheuser-Busch.\nB.\nBobak agrees that he will make no public statements and take no public action that disparages or is detrimental to\nAnheuser-Busch (including without limitation, its directors, officers and employees), or would otherwise cause or contribute to\nAnheuser-Busch being held in disrepute by the general public, customers or employees. Anheuser-Busch Companies, Inc. (including,\nwithout limitation, its directors and officers) agrees that it will take no official public action that is intended to disparage or be\ndetrimental to Bobak. Anheuser-Busch also agrees to provide a mutually agreed-upon letter of reference to Bobak, and to provide a\ncopy of such letter in response to any inquiry to the office of the Anheuser-Busch Companies, Inc. Vice President, Corporate Human\nResources, from a prospective employer regarding Bobak's employment by Anheuser-Busch.\nC.\nBobak agrees that he has obligations under the Missouri Rules of Professional Conduct, that those obligations will\nsurvive the termination of his employment, and that nothing herein shall be deemed to abridge, impair or waive such obligations.\n7.\nRestrictive Covenants\nA.\nExcept as specifically provided in subparagraph 7B below, or as otherwise agreed to in writing by Anheuser-Busch\nand upon such terms and conditions as Anheuser-Busch may impose, from the date of the Agreement until December 31, 2012,\nBobak shall not, anywhere in the world, engage, directly or indirectly, in any activity for, or on behalf of, any business or organization\nthat manufactures, sells or distributes alcohol beverages and/or no-alcohol malt beverages, that promotes or encourages any\nrestrictions on, or regulation of, the use, distribution or marketing of alcohol beverages, or that otherwise competes with any current\nbusiness activity of Anheuser-Busch, either alone, as a member of a partnership or association, as an officer, director, employee,\nconsultant, lobbyist or representative of or to any corporation, industry trade association, not-for-profit organization, or other business\nentity, or as an investor in, or\n7\nbeneficial owner of 1% or more of any security of any class of any corporation, or 1% or more of any equity interest of any\nunincorporated enterprise.\nB.\nNotwithstanding the strict prohibitions in paragraph 7A above, Bobak may submit a request for approval in writing to\nthe Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, if he wishes to provide services of any kind\ndescribed in paragraph 7A above. Such written request will be considered by Anheuser-Busch which shall determine, in its sole\ndiscretion, whether such request should be granted.\nC.\nBobak further agrees that he shall not solicit, recruit, or otherwise make contact with or respond to any contact from any\nemployee of Anheuser-Busch, anywhere in the world, for the purpose of engaging or hiring or obtaining, directly or indirectly, the\nemployee's services by or for another partnership, firm, company or organization.\n8.\nEnforceability and Choice of Law\nA.\nBobak and Anheuser-Busch agree that in the event either party breaches any provision of this Agreement, the sole\nremedy of the other party is the enforcement of the terms of this Agreement.\nB.\nBobak agrees that if he violates any provision of paragraph 6 or 7, or in the event that an arbitrator or court of\ncompetent jurisdiction rules that the restrictive covenants in paragraph 7 are not enforceable (either circumstance will be referred to in\nthis paragraph as an "Event"), he shall forfeit, as of the date of the Event, all remaining consulting payments described in paragraph\n2A, eligibility for Health Benefits described in paragraph 2E, any unpaid bonus described in paragraph 2G, any unexercised stock\noption\ngrants\nand unvested restricted stock grants described in paragraph 2H, the discretionary incentive payments described\nin\nparagraph 21 and any remaining payments described in the last two sentences of paragraph 3B. In the event that Anheuser-Busch\nbelieves that Bobak is in violation of paragraph 6 or 7 of this Agreement, Anheuser-Busch shal give Bobak written notice of such\nviolation, and Bobak shall be provided with a reasonable opportunity to cure such violation, discontinue such conduct, or present\ndocumented evidence establishing that the activity\n8\nor employment does not constitute a violation of this Agreement, prior to Anheuser-Busch availing itself of its remedies under this\nparagraph 8. Anheuser-Busch will have the right, at any time, to request that Bobak certify that he is in compliance with paragraphs\n6\nand 7, and Bobak's failure to certify compliance as requested will be deemed to be an Event as defined in this paragraph 8, a material\nviolation, and a material breach of this Agreement. Bobak understands and agrees that any breach of the provisions of paragraphs\n6\nor 7 of this Agreement shall constitute a material breach of this Agreement and that Anheuser-Busch, in addition to its right to\nterminate the Agreement, shall be entitled to injunctive and other equitable relief to prevent the threatened or continued breach of this\nAgreement.\nand\nsuch C. provision Except be declared as otherwise illegal or provided unenforceable in subparagraph by any arbitrator 8B above, or court should of Bobak competent challenge jurisdiction any provision and cannot of this be Agreement modified to\nbe enforceable, such provision will immediately become void, leaving the remainder of this Agreement in effect. However, if any\nportion of the general release (paragraph 5) is ruled to be unenforceable as a result of such challenge, Bobak agrees that Anheuser-\nBusch will be entitled to a set-off against any subsequent judgment or award made to Bobak in the amount of all compensation paid to\nhim by Anheuser-Busch under this Agreement.\nD.\nThe parties have read and fully considered the Agreement and mutually desire to enter into this Agreement. The\nterms of this Agreement are the product of mutual negotiation and compromise between Bobak and Anheuser-Busch. Having elected\nto execute this Agreement, to fulfill the promises and receive the benefits set forth herein, Bobak freely and knowingly, and after due\nconsideration, enters into this Agreement intending to waive, settle, and release all claims he has against Anheuser-Busch as the\neffective date of this Agreement.\nE.\nIt is the parties' intent and expectation that the insured medical, dental, vision and prescription drug benefits ("Exempt\nBenefits") provided to Bobak under the terms of this Agreement are exempt from the application of Internal Revenue Code Section\n409A ("Section 409A") and all regulations and other guidance issued thereunder. In the event that new regulations, interpretations or\nother legal guidance\n9\nchange that assessment, the parties intend that appropriate adjustments will be made to cause the Exempt Benefits to be exempt or,\nif\nthat is not possible, to cause the Exempt Benefits to comply with Section 409A. It is also the parties' intent and expectation that all\nforms of compensation provided by this Agreement that are subject to the application of Section 409A ("Nonexempt Benefits") will fully\ncomply with Section 409A, and in the event that new regulations, interpretations or other legal guidance change that assessment, the\nparties intend that appropriate adjustments will be made to cause the Nonexempt Benefits to comply with Section 409A.\n9.\nMiscellaneous\nA.\nThis Agreement constitutes a Summary of Material Modifications (SMM) that supplements the Eligibility and\nAdministrative\nRules\nBooklet\nsummary\nplan\ndescription\npreviously\ndistributed\nto\nBobak.\nAs\nan\nSMM,\nthis\nAgreement\nprovides\nBobak\nwith information about the Group Insurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries that\nis in addition to that contained in Bobak's Eligibility and Administrative Rules Booklet summary plan description and prior SMMS.\nB.\nBobak acknowledges that he has been advised by Anheuser-Busch that there may be substantial federal and state\nincome tax consequences for Bobak as a result of entering into this Agreement, and that he should seek professional tax and legal\nadvice before doing so. Bobak further acknowledges that he has not been provided with any advice on the tax effects of this\nAgreement by Anheuser-Busch or any of its employees or agents.\nC.\nAnheuser-Busch and Bobak agree that all disputes between the parties relating to or arising out of: (a) this\nAgreement; (b) Bobak's employment with Anheuser-Busch; and/or (c) the cessation of Bobak's employment with Anheuser-Busch\nmust be resolved through the Anheuser-Busch Dispute Resolution Program, which includes final and binding arbitration of covered\nclaims.\nBobak acknowledges that he has previously signed a "Mutual Agreement to Arbitrate Claims," the terms of which\nare\nincorporated into this Agreement by this reference and remain binding on the parties. An executed copy of the Mutual Agreement to\nArbitrate Claims is attached hereto. Notwithstanding\n10\nanything to the contrary contained herein, Anheuser-Busch shall be entitled to seek enforcement of the provisions of paragraphs 6 and\n7 in a court of competent jurisdiction.\n10.\nNotices\nUnless otherwise provided, all notices, requests, consents and other communications required or permitted under this\nAgreement must be in writing and must be hand-delivered or mailed, addressed as follows, or to such other address as may be\nprovided by the respective parties to this Agreement:\nIf to Anheuser-Busch:\nAnheuser-Busch Companies, Inc.\nOne Busch Place\nSt. Louis, MO 63118\nAttn.: Vice President, Corporate Human Resources\nIf to Mr. Bobak:\nMr. Mark T. Bobak\nAt his address on record with Anheuser-Busch\n11.\nThe validity of this Agreement shall be governed by and construed according to the law of the State of Missouri. This\nAgreement and the exhibits thereto constitute the entire and exclusive agreement between Bobak and Anheuser-Busch with respect to\nBobak's employment status and any rights and duties owed by Anheuser-Busch to Bobak and, except as otherwise provided in this\nAgreement,\nit\nsupersedes all previous or contemporaneous negotiations, commitments, agreements, statements, representations,\nor\npromises, oral or written. This Agreement may not be modified except in a writing signed by both parties.\n12.\nBOBAK STATES THAT HE HAS CAREFULLY READ THIS "CONSULTING AND NON-DISCLOSURE AGREEMENT AND\nGENERAL RELEASE," THAT HE KNOWS AND UNDERSTANDS ITS CONTENTS AND THAT HE IS ENTERING INTO THIS\nAGREEMENT AS HIS OWN FREE ACT AND DEED. BOBAK FURTHER REPRESENTS AND AGREES THAT:\nHE HAS BEEN ADVISED BY ANHEUSER-BUSCH TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS\nAGREEMENT;\n11\nHE FULLY UNDERSTANDS THAT HIS EXECUTION OF THIS AGREEMENT CONSTITUTES A FULL AND FINAL\nRELEASE OF ALL CLAIMS HE MAY HAVE AGAINST ANHEUSER-BUSCH AS OF THE EFFECTIVE DATE OF THE\nAGREEMENT WITH FINAL AND BINDING EFFECT;\nHE HAS BEEN GIVEN AT LEAST 21 DAYS TO CONSIDER THIS AGREEMENT;\nFOR A PERIOD OF 7 DAYS FROM THE DATE HE SIGNS THIS AGREEMENT, BOBAK MAY REVOKE THIS\nAGREEMENT BY NOTIFYING ANHEUSER-BUSCH IN WRITING OF HIS INTENT TO DO SO; AND\nTHIS AGREEMENT WILL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS\nEXPIRED.\nTHIS AGREEMENT IS SUBJECT TO A BINDING ARBITRATION AGREEMENT, WHICH MAY BE ENFORCED BY THE PARTIES.\nThe parties to this Consulting and Non-Disclosure Agreement and General Release now voluntarily and knowingly execute this\nAgreement.\nANHEUSER-BUSCH COMPANIES, INC.,\nBy: Is/ John T. Farrel\nDate: 12/10/07\nVice President, Corporate Human Resources\nIs/ Mark T. Bobak\nDate: 12/10/07\nMARK T. BOBAK\n12	EX-10.30 8 ex10p30.htm\nExhibit 10.30\nCONSULTING AND NON-DISCLOSURE AGREEMENT\nAND GENERAL RELEASE\nANHEUSER-BUSCH COMPANIES, INC., a Delaware corporation with its principal offices at One Busch Place, St. Louis,\nMissouri, 63118, its affiliates, subsidiaries, divisions, successors and assigns, and their directors, officers, employees and agents, both\nin their official and individual capacities (all of whom are collectively referred to throughout this Consulting and Non-Disclosure\nAgreement and General Release as “Anheuser-Busch”), and MARK T. BOBAK (“Bobak”), residing in St. Louis, Missouri, mutually\ndesire to enter into this Consulting and Non-Disclosure Agreement and General Release (“Agreement”) and agree as follows:\n1.\nTermination of Employment\nBobak agrees to terminate employment with Anheuser-Busch on December 31, 2007, (“Termination Date”) in order to allow him\nto return to the private practice of law.\n2.\nConsulting Payments\nAnheuser-Busch agrees that during the period from the Termination Date through December 31, 2012 (the “Consulting\nPeriod”), so long as Bobak fulfills any assigned duties and complies with all Anheuser-Busch policies and the provisions of this\nAgreement:\nA.\nBobak will be paid a consulting fee of $52,884 per month. All consulting payments shall be payable in semi-monthly\ninstallments on the 15th and last day of each month, less applicable withholding. In the event that Bobak dies prior to December 31,\n2012, Anheuser-Busch agrees to pay any remaining consulting payments due under this Agreement to Bobak’s spouse unless\notherwise directed in writing by Bobak.\nB.\nBobak agrees to devote the time necessary to complete any projects assigned to him by the Chief Executive Officer or\nhis designee. Anheuser-Busch will provide reasonable advance notice to Bobak of any work assignments, and will take into\nconsideration Bobak’s other commitments. Bobak also agrees that he will fully\ncooperate with any request made by Anheuser-Busch relating to or arising out of corporate transactions, labor relations, government\naffairs, litigation or any other matter that Bobak worked on, learned of, or became familiar with during his employment with Anheuser-\nBusch. Bobak will work from his personal residence or office and will not be provided with a company office or reserved parking\nspot. Bobak may retain his Blackberry/cell phone, computer, home fax machine, and company e-mail address for purposes of\nperforming services contemplated by this Agreement. Such items will be returned upon request by Anheuser-Busch. Subject to the\nprovisions of this Agreement and provided there is no interference with Bobak’s efforts as requested by Anheuser-Busch, Bobak may\nprovide services to other employers at any time after the Termination Date. Bobak agrees to provide to the Chief Executive Officer a\nreport of all projects and assignments that he is working on for Anheuser-Busch on a quarterly basis.\nC.\nAnheuser-Busch will reimburse Bobak, pursuant to company expense reimbursement guidelines, for all ordinary,\nnecessary and reasonable business expenses incurred by Bobak while conducting assignments for Anheuser-Busch at the direction of\nthe Chief Executive Officer or his designee.\nD.\nExcept as otherwise provided in this Agreement, Bobak agrees to return all Anheuser-Busch property (including, but\nnot limited to, company documents and records, whether in electronic or paper format, and all copies thereof, computers, cell phones,\nblackberries, fax machines, pagers, security badge and credit cards) on or before the Termination Date.\nE.\nAnheuser-Busch will continue to provide Bobak and his eligible dependents with health care benefits as described\nherein (“Health Benefits”). Until Bobak reaches the age of 58, he and his eligible dependents will continue to participate in the Group\nInsurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries (“Group Insurance Plan”), except that\nhis benefits under the Group Insurance Plan will be limited to insured medical, dental, vision and prescription drug benefits (“Health\nBenefits”) that are materially similar to the health benefits provided from time to time to Anheuser-Busch full-time salaried employees,\nand subject to the same benefit limits, co-payments, premium payments and deductibles. Upon Bobak\n2\nreaching age 58, he and his eligible dependents will participate in the Group Insurance Plan for Certain Retirees of Anheuser-Busch\n(Retiree Insurance Plan), except that the Health Benefits will be limited to those that are materially similar to the health benefits\nprovided from time to time to Anheuser-Busch retirees and subject to the same benefits limits, co-payments, premium payments and\ndeductibles. The selection of insurance carriers to provide the Health Benefits shall be in the sole discretion of Anheuser-Busch\nCompanies, Inc. The Health Benefits provided to Bobak during the Consulting Period shall, for purposes of coordination of benefits, be\nsecondary to any subsequent benefit coverage(s) for which Bobak, his spouse and eligible dependents become eligible as a result of\nBobak becoming an employee for any other employer. Bobak agrees that in the event he obtains new employment during the\nConsulting Period, he shall notify the Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, in writing within\n30 days after he first becomes eligible for any health benefit coverage through any subsequent employer(s) and will provide Anheuser-\nBusch with a copy of the summary plan descriptions for such coverage(s).\nF.\nExcept as otherwise specifically provided herein, during the Consulting Period Bobak will not be eligible for any\nbenefits from Anheuser-Busch Companies, Inc., or any of its subsidiaries, including, but not limited to, the following:\ni) long-term disability insurance coverage;\nii) short-term disability coverage;\niii) life insurance or retiree life insurance;\niv) paid sick days;\nv) health care and/or dependent care spending account benefits;\nvi) legal assistance benefits;\nvii) country club membership;\nviii) monthly beer tickets and/or other complimentary beer; and\nix)\naccess to, or use of, the executive dining room, fitness center or barber shop.\nG.\nSubject to review by the Compensation Committee of the audited financial statements and its certification that the\nperformance goal set forth in the 2007 Officer\n3\nBonus Program has been met, Bobak shall receive a bonus for 2007 in the amount of $600,000 no later than March 1, 2008.\nH.\nNotwithstanding Bobak’s termination of employment, unvested stock option grants made to Bobak in 2005, 2006, and\n2007 shall not terminate and shall vest and become exercisable in accordance with their original schedule; vested stock option grants\nmade to Bobak prior to 2005 shall not terminate and shall remain exercisable for a period of five years following termination of\nemployment (or, if shorter, for their stated terms); vested stock option grants made to Bobak in 2005 and afterwards shall not terminate\nand shall remain exercisable for their stated terms; and restricted stock grants made to Bobak shall not terminate and shall vest in\naccordance with their original terms, but only to the extent that the performance goals related to such grants are achieved. All such\ngrants shall otherwise remain subject to the terms of the applicable plans and agreements under which they were granted.\nI.\nBobak shall be eligible for incentive payments for 2008 and 2009 based on the successful completion of certain key\ninitiatives and the attainment of certain key objectives in the Legal and Industry and Government Affairs Departments, as determined\nby the Chief Executive Officer of Anheuser-Busch in his sole discretion.\n3.\nSeparation Benefits\nA.\nBobak agrees that upon his Termination Date, he will not be entitled to any severance benefits or any retiree life\ninsurance benefits under any benefit plan of Anheuser-Busch Companies, Inc., or any of its subsidiaries.\nB.\nAfter his Termination Date, Bobak will be entitled to elect distribution of his benefits from the Anheuser-Busch Salaried\nEmployees’ Pension Plan (“SEPP”) and the Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (“401(k) Plan”)\npursuant to the terms of those plans. Bobak understands that processing of benefits from the SEPP or the 401(k) Plan will not begin\nuntil he notifies the SEPP or 401(k) Plan Administrator in writing that he wants to receive a distribution of benefits from the respective\nplan. Bobak shall become vested in his accrued benefit under the Anheuser-Busch Supplemental Executive Retirement Plan (“SERP”)\non the Termination Date, and shall receive his distribution under the SERP as a lump sum payment in the amount of\n4\n$1,304,118 on or about the first regularly scheduled business day after January 1, 2013. Bobak will also receive a lump sum payment\nof $1,095,882 on or about the first regularly scheduled business day after January 1, 2013 as payment of additional pension benefits\nhe would have accrued had he remained employed throughout the Consulting Period.\n4.\nNo Admission of Liability\nBobak acknowledges and agrees that he would not receive all the payments and benefits specified in this Agreement except\nfor his execution of this Agreement and his fulfillment of its terms. Neither the making of this Agreement, nor anything contained in it,\nshall in any way be construed or considered to be an admission by Anheuser-Busch of noncompliance with any law or of any other\nwrongdoing.\n5.\nRelease of Liability\nA.\nExcept for any violation of the terms of this Agreement by Anheuser-Busch, Bobak, of his own free will, voluntarily\nreleases and forever discharges Anheuser-Busch from all actions, causes of action, claims, debts, charges, complaints, contracts\n(whether oral or written, express or implied from any source) and promises of any kind, in law or equity, whether known or unknown,\nwhich Bobak, his heirs, executors, administrators, successors and assigns (referred to collectively throughout this Agreement as\n“Bobak”) may have from all time in the past to the effective date of this Agreement, including, but not limited to, all matters or claims\nrelating to or arising out of Bobak’s employment by Anheuser-Busch and the cessation of his employment and including, but not limited\nto, any violation of:\n(1) Title VII of the Civil Rights Act, as amended;\n(2) Sections 1981 through 1988 of Title 42 of the United States Code;\n(3) the Employee Retirement Income Security Act, as amended;\n(4) the Health Insurance Portability and Accountability Act;\n(5) the Family and Medical Leave Act;\n(6) the Age Discrimination in Employment Act, as amended;\n(7) the Americans with Disabilities Act;\n5\n(8) the Missouri Human Rights Act;\n(9) the Sarbanes-Oxley Act of 2002;\n(10) any other local, state or federal law, regulation or ordinance and/or public policy, contract, tort or common law\nhaving any bearing on the terms and conditions and/or cessation of his employment with Anheuser-Busch.\nExcept as otherwise provided in this Agreement, this release shall not apply to any claim for benefits that may be due to Bobak\nor his eligible dependents under any Anheuser-Busch employee benefit plan in which Bobak or his eligible dependents are or were\nparticipants.\nB.\nBobak warrants that he has not caused or permitted to be filed on his behalf any charge, complaint, or action before any\nfederal, state or local administrative agency or court against Anheuser-Busch. In the event that any such claim is asserted in the future,\nBobak agrees that this Agreement will act as a complete bar to his re-employment or to his recovery of any amount from Anheuser-\nBusch resulting, directly or indirectly, from any lawsuit, remedy, charge or complaint whether brought privately by him or by anyone\nelse, including any federal, state or local agency, whether or not on his behalf or at his request.\n6.\nConfidentiality\nA.\nAs a result of his employment with Anheuser-Busch, Bobak has gained valuable confidential information and trade\nsecrets relevant to Anheuser-Busch’s business operations including its information technology. In light of the highly competitive nature\nof the industry in which Anheuser-Busch’s business is conducted, Bobak understands and agrees that he will keep in strict secrecy\nand confidence, and is specifically prohibited from disclosing, any and all unique, confidential and/or proprietary information and\nmaterial belonging or relating to Anheuser-Busch that is not a matter of common knowledge or otherwise generally available to the\npublic including, but not limited to, business, financial, trade, sales, technical or technological information, or corporate sales and\nmarketing strategies, to any entity that competes with Anheuser-Busch. In addition, Bobak agrees that he will not use any such\nconfidential information,\n6\nmaterials or trade secrets for the benefit of any of Anheuser-Busch’s competitors and/or against the best interests of Anheuser-Busch.\nB.\nBobak agrees that he will make no public statements and take no public action that disparages or is detrimental to\nAnheuser-Busch (including without limitation, its directors, officers and employees), or would otherwise cause or contribute to\nAnheuser-Busch being held in disrepute by the general public, customers or employees. Anheuser-Busch Companies, Inc. (including,\nwithout limitation, its directors and officers) agrees that it will take no official public action that is intended to disparage or be\ndetrimental to Bobak. Anheuser-Busch also agrees to provide a mutually agreed-upon letter of reference to Bobak, and to provide a\ncopy of such letter in response to any inquiry to the office of the Anheuser-Busch Companies, Inc. Vice President, Corporate Human\nResources, from a prospective employer regarding Bobak’s employment by Anheuser-Busch.\nC.\nBobak agrees that he has obligations under the Missouri Rules of Professional Conduct, that those obligations will\nsurvive the termination of his employment, and that nothing herein shall be deemed to abridge, impair or waive such obligations.\n7.\nRestrictive Covenants\nA.\nExcept as specifically provided in subparagraph 7B below, or as otherwise agreed to in writing by Anheuser-Busch,\nand upon such terms and conditions as Anheuser-Busch may impose, from the date of the Agreement until December 31, 2012,\nBobak shall not, anywhere in the world, engage, directly or indirectly, in any activity for, or on behalf of, any business or organization\nthat manufactures, sells or distributes alcohol beverages and/or no-alcohol malt beverages, that promotes or encourages any\nrestrictions on, or regulation of, the use, distribution or marketing of alcohol beverages, or that otherwise competes with any current\nbusiness activity of Anheuser-Busch, either alone, as a member of a partnership or association, as an officer, director, employee,\nconsultant, lobbyist or representative of or to any corporation, industry trade association, not-for-profit organization, or other business\nentity, or as an investor in, or\n7\nbeneficial owner of 1% or more of any security of any class of any corporation, or 1% or more of any equity interest of any\nunincorporated enterprise.\nB.\nNotwithstanding the strict prohibitions in paragraph 7A above, Bobak may submit a request for approval in writing to\nthe Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, if he wishes to provide services of any kind\ndescribed in paragraph 7A above. Such written request will be considered by Anheuser-Busch which shall determine, in its sole\ndiscretion, whether such request should be granted.\nC.\nBobak further agrees that he shall not solicit, recruit, or otherwise make contact with or respond to any contact from any\nemployee of Anheuser-Busch, anywhere in the world, for the purpose of engaging or hiring or obtaining, directly or indirectly, the\nemployee’s services by or for another partnership, firm, company or organization.\n8.\nEnforceability and Choice of Law\nA.\nBobak and Anheuser-Busch agree that in the event either party breaches any provision of this Agreement, the sole\nremedy of the other party is the enforcement of the terms of this Agreement.\nB.\nBobak agrees that if he violates any provision of paragraph 6 or 7, or in the event that an arbitrator or court of\ncompetent jurisdiction rules that the restrictive covenants in paragraph 7 are not enforceable (either circumstance will be referred to in\nthis paragraph as an “Event”), he shall forfeit, as of the date of the Event, all remaining consulting payments described in paragraph\n2A, eligibility for Health Benefits described in paragraph 2E, any unpaid bonus described in paragraph 2G, any unexercised stock\noption grants and unvested restricted stock grants described in paragraph 2H, the discretionary incentive payments described in\nparagraph 2I and any remaining payments described in the last two sentences of paragraph 3B. In the event that Anheuser-Busch\nbelieves that Bobak is in violation of paragraph 6 or 7 of this Agreement, Anheuser-Busch shall give Bobak written notice of such\nviolation, and Bobak shall be provided with a reasonable opportunity to cure such violation, discontinue such conduct, or present\ndocumented evidence establishing that the activity\n8\nor employment does not constitute a violation of this Agreement, prior to Anheuser-Busch availing itself of its remedies under this\nparagraph 8. Anheuser-Busch will have the right, at any time, to request that Bobak certify that he is in compliance with paragraphs 6\nand 7, and Bobak’s failure to certify compliance as requested will be deemed to be an Event as defined in this paragraph 8, a material\nviolation, and a material breach of this Agreement. Bobak understands and agrees that any breach of the provisions of paragraphs 6\nor 7 of this Agreement shall constitute a material breach of this Agreement and that Anheuser-Busch, in addition to its right to\nterminate the Agreement, shall be entitled to injunctive and other equitable relief to prevent the threatened or continued breach of this\nAgreement.\nC.\nExcept as otherwise provided in subparagraph 8B above, should Bobak challenge any provision of this Agreement\nand such provision be declared illegal or unenforceable by any arbitrator or court of competent jurisdiction and cannot be modified to\nbe enforceable, such provision will immediately become void, leaving the remainder of this Agreement in effect. However, if any\nportion of the general release (paragraph 5) is ruled to be unenforceable as a result of such challenge, Bobak agrees that Anheuser-\nBusch will be entitled to a set-off against any subsequent judgment or award made to Bobak in the amount of all compensation paid to\nhim by Anheuser-Busch under this Agreement.\nD.\nThe parties have read and fully considered the Agreement and mutually desire to enter into this Agreement. The\nterms of this Agreement are the product of mutual negotiation and compromise between Bobak and Anheuser-Busch. Having elected\nto execute this Agreement, to fulfill the promises and receive the benefits set forth herein, Bobak freely and knowingly, and after due\nconsideration, enters into this Agreement intending to waive, settle, and release all claims he has against Anheuser-Busch as the\neffective date of this Agreement.\nE.\nIt is the parties’ intent and expectation that the insured medical, dental, vision and prescription drug benefits (“Exempt\nBenefits”) provided to Bobak under the terms of this Agreement are exempt from the application of Internal Revenue Code Section\n409A (“Section 409A”) and all regulations and other guidance issued thereunder. In the event that new regulations, interpretations or\nother legal guidance\n9\nchange that assessment, the parties intend that appropriate adjustments will be made to cause the Exempt Benefits to be exempt or, if\nthat is not possible, to cause the Exempt Benefits to comply with Section 409A. It is also the parties’ intent and expectation that all\nforms of compensation provided by this Agreement that are subject to the application of Section 409A (“Nonexempt Benefits”) will fully\ncomply with Section 409A, and in the event that new regulations, interpretations or other legal guidance change that assessment, the\nparties intend that appropriate adjustments will be made to cause the Nonexempt Benefits to comply with Section 409A.\n9.\nMiscellaneous\nA.\nThis Agreement constitutes a Summary of Material Modifications (SMM) that supplements the Eligibility and\nAdministrative Rules Booklet summary plan description previously distributed to Bobak. As an SMM, this Agreement provides Bobak\nwith information about the Group Insurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries that\nis in addition to that contained in Bobak’s Eligibility and Administrative Rules Booklet summary plan description and prior SMMs.\nB.\nBobak acknowledges that he has been advised by Anheuser-Busch that there may be substantial federal and state\nincome tax consequences for Bobak as a result of entering into this Agreement, and that he should seek professional tax and legal\nadvice before doing so. Bobak further acknowledges that he has not been provided with any advice on the tax effects of this\nAgreement by Anheuser-Busch or any of its employees or agents.\nC.\nAnheuser-Busch and Bobak agree that all disputes between the parties relating to or arising out of: (a) this\nAgreement; (b) Bobak’s employment with Anheuser-Busch; and/or (c) the cessation of Bobak’s employment with Anheuser-Busch\nmust be resolved through the Anheuser-Busch Dispute Resolution Program, which includes final and binding arbitration of covered\nclaims. Bobak acknowledges that he has previously signed a “Mutual Agreement to Arbitrate Claims,” the terms of which are\nincorporated into this Agreement by this reference and remain binding on the parties. An executed copy of the Mutual Agreement to\nArbitrate Claims is attached hereto. Notwithstanding\n10\nanything to the contrary contained herein, Anheuser-Busch shall be entitled to seek enforcement of the provisions of paragraphs 6 and\n7 in a court of competent jurisdiction.\n10.\nNotices\nUnless otherwise provided, all notices, requests, consents and other communications required or permitted under this\nAgreement must be in writing and must be hand-delivered or mailed, addressed as follows, or to such other address as may be\nprovided by the respective parties to this Agreement:\nIf to Anheuser-Busch:\nAnheuser-Busch Companies, Inc.\nOne Busch Place\nSt. Louis, MO 63118\nAttn.: Vice President, Corporate Human Resources\nIf to Mr. Bobak:\nMr. Mark T. Bobak\nAt his address on record with Anheuser-Busch\n11.\nThe validity of this Agreement shall be governed by and construed according to the law of the State of Missouri. This\nAgreement and the exhibits thereto constitute the entire and exclusive agreement between Bobak and Anheuser-Busch with respect to\nBobak’s employment status and any rights and duties owed by Anheuser-Busch to Bobak and, except as otherwise provided in this\nAgreement, it supersedes all previous or contemporaneous negotiations, commitments, agreements, statements, representations, or\npromises, oral or written. This Agreement may not be modified except in a writing signed by both parties.\n12.\nBOBAK STATES THAT HE HAS CAREFULLY READ THIS “CONSULTING AND NON-DISCLOSURE AGREEMENT AND\nGENERAL RELEASE,” THAT HE KNOWS AND UNDERSTANDS ITS CONTENTS AND THAT HE IS ENTERING INTO THIS\nAGREEMENT AS HIS OWN FREE ACT AND DEED. BOBAK FURTHER REPRESENTS AND AGREES THAT:\n·\nHE HAS BEEN ADVISED BY ANHEUSER-BUSCH TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS\nAGREEMENT;\n11\n·\nHE FULLY UNDERSTANDS THAT HIS EXECUTION OF THIS AGREEMENT CONSTITUTES A FULL AND FINAL\nRELEASE OF ALL CLAIMS HE MAY HAVE AGAINST ANHEUSER-BUSCH AS OF THE EFFECTIVE DATE OF THE\nAGREEMENT WITH FINAL AND BINDING EFFECT;\n·\nHE HAS BEEN GIVEN AT LEAST 21 DAYS TO CONSIDER THIS AGREEMENT;\n·\nFOR A PERIOD OF 7 DAYS FROM THE DATE HE SIGNS THIS AGREEMENT, BOBAK MAY REVOKE THIS\nAGREEMENT BY NOTIFYING ANHEUSER-BUSCH IN WRITING OF HIS INTENT TO DO SO; AND\n·\nTHIS AGREEMENT WILL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS\nEXPIRED.\nTHIS AGREEMENT IS SUBJECT TO A BINDING ARBITRATION AGREEMENT, WHICH MAY BE ENFORCED BY THE PARTIES.\nThe parties to this Consulting and Non-Disclosure Agreement and General Release now voluntarily and knowingly execute this\nAgreement.\nANHEUSER-BUSCH COMPANIES, INC.,\nBy: /s/ John T. Farrell\nDate: 12/10/07\nVice President, Corporate Human Resources\n/s/ Mark T. Bobak\nDate: 12/10/07\nMARK T. BOBAK\n12
e8c84be1bf741406d0d1f3c6c16bdbd9.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 13 d250779dex99d4.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) is entered into this 2nd day of July, 2011, by and between Yahoo! Inc., a Delaware\ncorporation (“Yahoo”) and the undersigned entity (“Counterparty”). Yahoo and Counterparty hereby agree as follows:\n1\nIn connection with our mutual consideration of a possible\nstrategic transaction (a “Transaction”) Yahoo and Counterparty expect\nto make available to one another certain information concerning their\nrespective businesses including, but not limited to, technology,\nfinancial forecasts, financial condition, operations, assets and liabilities\nand business strategies. As a condition to such information being\nfurnished to each party and its subsidiaries, directors, officers,\nemployees, agents or advisors (including, attorneys, accountants,\nconsultants, bankers and financial advisors) (collectively,\n“Representatives”), each party agrees to treat all Evaluation Material in\naccordance with the provisions of this Agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\n1. Evaluation Material. The term “Evaluation Material” shall be\ndeemed to include all information concerning the other party (whether\nprepared by the disclosing party or its Representatives) which is\nfurnished to a party or to its Representatives in connection with the\nparties’ evaluation of a possible Transaction, in each case by or on\nbehalf of the disclosing party in accordance with the provisions of this\nAgreement. The term “Evaluation Material” also shall include all\nnotes, analyses, compilations, studies, interpretations or other\ndocuments prepared by each party or its Representatives which\ncontain, reflect or are based upon, in whole or in part, the information\nfurnished to such party or its Representatives pursuant hereto which is\nnot available to the general public. Notwithstanding the foregoing, the\nterm “Evaluation Material”\ndoes not include information which (i) is or becomes generally\navailable to the public other than as a result of a breach of this\nAgreement by the receiving party or its Representatives; (ii) was within\nthe receiving party’s possession prior to its being furnished to the\nreceiving party by or on behalf of the disclosing party, provided that to\nthe receiving party’s knowledge, the source of such information is not\nand was not bound at the time of delivery by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the disclosing party; (iii) is or becomes available to\nthe receiving party on a non-confidential basis from a source that to the\nreceiving party’s knowledge, is not and was not bound at the time such\ninformation becomes available by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the\ndisclosing party with respect to such information; or (iv) is\nindependently developed by the receiving party without use of\nEvaluation Material.\n2. Use of Evaluation Material. Each party hereby agrees that it and\nits Representatives shall use the other’s Evaluation Material solely for\nthe purpose of evaluating a possible Transaction between the parties.\nEach party and its Representatives will keep the Evaluation Material\nconfidential and will not disclose for any purpose any of the other’s\nEvaluation Material in any manner whatsoever; provided, however,\nthat (i) the receiving party may make any disclosure of such\ninformation to the extent to which the disclosing party gives its prior\nwritten consent and (ii) any of such information\n2\nmay be disclosed to the receiving party’s Representatives who need to\nknow such information for the sole purpose of evaluating a possible\nTransaction between the parties, provided that each such\nRepresentative agrees to treat such information as confidential. Each\nparty agrees to be responsible for any breach of this Agreement by any\nof its Representatives.\n3. Non-Disclosure. In addition, each party agrees that, without the\nprior written consent of the other party, neither the receiving party nor\nits Representatives will disclose to any other person the fact that any\nEvaluation Material has been made available hereunder, that\ndiscussions or negotiations are taking place concerning a possible\nTransaction involving the parties or any of the terms, conditions or\nother facts with respect thereto (including the status thereof); provided\nthat a party may make such disclosure subject to the provisions of\nSection 4 hereof.\n4. Required Disclosure. In the event that a party or its\nRepresentatives are requested or required by applicable law, regulation\nor legal process (including oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil\ninvestigative demand or other similar process) to disclose any of the\nother party’s Evaluation Material, the party requested or required to\nmake the disclosure shall provide the other party with prompt notice,\nunless notice is prohibited by law, of any such request or requirement\nso that the other party may seek a protective order or other appropriate\nremedy and/or waive compliance with the provisions of this\nAgreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver by such other party, the party requested or\nrequired to make the disclosure or any of its\nRepresentatives are nonetheless, under the advice of counsel, legally\nrequired to disclose the other party’s Evaluation Material, the party\nrequested or required to make the disclosure or its Representative may,\nwithout liability hereunder, disclose only that portion of the other\nparty’s Evaluation Material which such counsel advises is legally\nrequired to be disclosed.\n5. Independent Development. The disclosing party understands that\nthe receiving party may currently or in the future be developing\ninformation internally, or receiving information from other parties that\nmay be similar to the disclosing party’s Evaluation Material. Nothing\nin this Agreement will prohibit the receiving party from developing (or\nhaving developed for it) products, concepts, systems or techniques that\nare similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the disclosing party’s\nEvaluation Material provided that the receiving party does not violate\nany of its obligations under this Agreement. Neither party shall have\nany obligation to limit or restrict the assignment of its employees or\nconsultants as a result of such party having had access to Evaluation\nMaterial. Each party acknowledges that the other party’s personnel\nmay retain certain information in their memories from access to the\nEvaluation Material. The portion(s) of such information, which are\nretained in such a person’s unaided memory without reference to any\ncopies of Evaluation Material in written, electronic or other fixed form,\nshall be known as “Residual Information.” Subject to any copyrights,\nmask work rights or patent rights of the disclosing party, utilization of\nsuch Residual Information by the receiving party will not in itself\nconstitute a breach of this Agreement.\n3\n6. Return of Evaluation Material. At any time upon the request of\neither disclosing party for any reason, each receiving party will\npromptly deliver to the disclosing party or destroy all written\nEvaluation Material furnished to the receiving party or its\nRepresentatives by or on behalf of the disclosing party pursuant hereto\n(including all copies thereof and extracts therefrom). In no event shall\neither party be obligated to disclose or provide the Evaluation Material\nprepared by it or by its Representatives, privileged communications or\nindependently developed materials to the other party. Notwithstanding\nthe return or destruction of the Evaluation Material, each party and its\nRepresentatives, unless otherwise provided herein, will continue to be\nbound by its obligations of confidentiality and other obligations\nhereunder for a period of one (1) year from the date hereof, provided\nthat with respect to trade secrets, the obligation of confidentiality shall\ncontinue for so long as such information is subject to protection as a\ntrade secret by the disclosing party.\n7. No Representation of Accuracy. Each party understands and\nacknowledges that neither party nor any of its Representatives makes\nany representation or warranty, express or implied, as to the accuracy\nor completeness of the Evaluation Material made available by it or to\nit. Each party agrees that neither party nor any of its Representatives\nshall have any liability to the other party or to any of its\nRepresentatives relating to or resulting from the use of or reliance upon\nsuch other party’s Evaluation Material or any errors therein or\nomissions therefrom. With respect to the Evaluation Material, only\nthose representations or warranties which are made in a final definitive\nagreement regarding the Transaction, when, as and if executed, and\nsubject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. No Further Obligations. Each party understands and agrees that\nno contract or agreement providing for any Transaction involving the\nparties shall be deemed to exist between the parties unless and until a\nfinal definitive agreement has been executed and delivered. Each party\nalso agrees that unless and until a final definitive agreement regarding\na Transaction between the parties has been executed and delivered,\nneither party will be under any legal obligation of any kind whatsoever\nwith respect to such a Transaction by virtue of this Agreement except\nfor the matters specifically agreed to herein. Both parties further\nacknowledge and agree that each party reserves the right, in its sole\ndiscretion, to provide or not provide Evaluation Material to the\nreceiving party under this Agreement, to reject any and all proposals\nmade by the other party or any of its Representatives with regard to a\nTransaction between the parties, and to terminate discussions and\nnegotiations at any time.\n9. Injunctive Relief. It is further understood and agreed that money\ndamages may not be a sufficient remedy for any breach of this\nAgreement by either party or any of its Representatives and that the\nnon-breaching party may be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach.\nSuch remedies shall not be deemed to be the exclusive remedies for a\nbreach of this Agreement but shall be in addition to all other remedies\navailable at law or equity.\n10. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California\napplicable to agreements made and to be performed within such State\nwithout regard to choice of law rules.\n4\n11. Term. This Agreement between the parties shall expire on the\nearlier of (a) the execution of a definitive agreement between the\nparties (unless otherwise provided in such agreement) and (b) one year\nfrom the date hereof, provided that the terms of paragraph 6 shall\nsurvive the termination or expiration of this Agreement, and provided\nfurther that such expiration shall not relieve any party for liability for\nbreach of this Agreement occurring before such expiration.\n12. Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of\nwhich shall constitute one and the same instrument.\n13. Miscellaneous.\n(a) Unless the context of this Agreement otherwise clearly requires,\n(i) references to the plural include the singular, and references to the\nsingular include the plural, (ii) references to any gender include the\nother genders, (iii) the words “include,” “includes” and “including” do\nnot limit the preceding terms or words and shall be deemed to be\nfollowed by the words “without limitation,” and (iv) the terms\n“hereof,” “herein,” “hereunder,” “hereto” and similar terms in this\nAgreement refer to this Agreement as a whole and not to any particular\nprovision of this Agreement.\n(b) No failure or delay by a party or any of its Representatives in\nexercising any right, power or privileges under this Agreement shall\noperate as a waiver thereof nor shall any single or partial exercise\nthereof preclude any other or further exercise of any right, power or\nprivilege hereunder.\n(c) In case any provision of this agreement shall be invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining\nprovisions of the Agreement shall not in any way be affected or\nimpaired thereby.\n(d) This Agreement contains the entire and sole agreement between\nthe parties concerning the subject matter hereof. This Agreement may\nbe changed only by a written agreement signed by the parties hereto or\ntheir authorized representatives.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding Agreement between Yahoo and the undersigned Counterparty. This Agreement may be executed by a facsimile\nsignature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nYahoo! Inc.\nBy: /s/ Marcus Shen\nName:\nMarcus Shen\nTitle:\nHead of Corporate Development\nFacsimile: 408.349.7721\nInterclick, Inc. Inc.\nBy: /s/ Michael Katz\nName:\nMichael Katz\nTitle:\nChief Executive Officer\nFacsimile: 646.558.1223\n5	EX-99.(D)(4) 13 d250779dex99d4.htm MUTUAL NONDISCLOSURE AGREEMENT Exhibit (d)(4)\nMUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) is entered into this 2nd day of July, 2011, by and between Yahoo! Inc., a Delaware corporation (“Yahoo”) and the undersigned entity (“Counterparty”). Yahoo and Counterparty hereby agree as follows: In connection with our mutual consideration of a possible\nstrategic transaction (a “Transaction”) Yahoo and Counterparty expect\nto make available to one another certain information concerning their\nrespective businesses including, but not limited to, technology,\nfinancial forecasts, financial condition, operations, assets and liabilities\nand business strategies. As a condition to such information being\nfurnished to each party and its subsidiaries, directors, officers,\nemployees, agents or advisors (including, attorneys, accountants,\nconsultants, bankers and financial advisors) (collectively,\n“Representatives™), each party agrees to treat all Evaluation Material in\naccordance with the provisions of this Agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\n1. Evaluation Material. The term “Evaluation Material” shall be\ndeemed to include all information concerning the other party (whether\nprepared by the disclosing party or its Representatives) which is\nfurnished to a party or to its Representatives in connection with the\nparties’ evaluation of a possible Transaction, in each case by or on\nbehalf of the disclosing party in accordance with the provisions of this\nAgreement. The term “Evaluation Material” also shall include all\nnotes, analyses, compilations, studies, interpretations or other\ndocuments prepared by each party or its Representatives which\ncontain, reflect or are based upon, in whole or in part, the information\nfurnished to such party or its Representatives pursuant hereto which is\nnot available to the general public. Notwithstanding the foregoing, the\nterm “Evaluation Material”\ndoes not include information which (i) is or becomes generally\navailable to the public other than as a result of a breach of this\nAgreement by the receiving party or its Representatives; (ii) was within\nthe receiving party’s possession prior to its being furnished to the\nreceiving party by or on behalf of the disclosing party, provided that to\nthe receiving party’s knowledge, the source of such information is not\nand was not bound at the time of delivery by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the disclosing party; (iii) is or becomes available to\nthe receiving party on a non-confidential basis from a source that to the\nreceiving party’s knowledge, is not and was not bound at the time such\ninformation becomes available by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the\ndisclosing party with respect to such information; or (iv) is\nindependently developed by the receiving party without use of\nEvaluation Material.\n2. Use of Evaluation Material. Each party hereby agrees that it and\nits Representatives shall use the other’s Evaluation Material solely for\nthe purpose of evaluating a possible Transaction between the parties.\nEach party and its Representatives will keep the Evaluation Material\nconfidential and will not disclose for any purpose any of the other’s\nEvaluation Material in any manner whatsoever; provided, however,\nthat (i) the receiving party may make any disclosure of such\ninformation to the extent to which the disclosing party gives its prior\nwritten consent and (ii) any of such information\nmay be disclosed to the receiving party’s Representatives who need to\nknow such information for the sole purpose of evaluating a possible\nTransaction between the parties, provided that each such\nRepresentative agrees to treat such information as confidential. Each\nparty agrees to be responsible for any breach of this Agreement by any\nof its Representatives.\n3. Non-Disclosure. In addition, each party agrees that, without the\nprior written consent of the other party, neither the receiving party nor\nits Representatives will disclose to any other person the fact that any\nEvaluation Material has been made available hereunder, that\ndiscussions or negotiations are taking place concerning a possible\nTransaction involving the parties or any of the terms, conditions or\nother facts with respect thereto (including the status thereof); provided\nthat a party may make such disclosure subject to the provisions of\nSection 4 hereof.\n4. Required Disclosure. In the event that a party or its\nRepresentatives are requested or required by applicable law, regulation\nor legal process (including oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil\ninvestigative demand or other similar process) to disclose any of the\nother party’s Evaluation Material, the party requested or required to\nmake the disclosure shall provide the other party with prompt notice,\nunless notice is prohibited by law, of any such request or requirement\nso that the other party may seek a protective order or other appropriate\nremedy and/or waive compliance with the provisions of this\nAgreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver by such other party, the party requested or\nrequired to make the disclosure or any of its\nRepresentatives are nonetheless, under the advice of counsel, legally\nrequired to disclose the other party’s Evaluation Material, the party\nrequested or required to make the disclosure or its Representative may,\nwithout liability hereunder, disclose only that portion of the other\nparty’s Evaluation Material which such counsel advises is legally\nrequired to be disclosed.\n5. Independent Development. The disclosing party understands that\nthe receiving party may currently or in the future be developing\ninformation internally, or receiving information from other parties that\nmay be similar to the disclosing party’s Evaluation Material. Nothing\nin this Agreement will prohibit the receiving party from developing (or\nhaving developed for it) products, concepts, systems or techniques that\nare similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the disclosing party’s\nEvaluation Material provided that the receiving party does not violate\nany of its obligations under this Agreement. Neither party shall have\nany obligation to limit or restrict the assignment of its employees or\nconsultants as a result of such party having had access to Evaluation\nMaterial. Each party acknowledges that the other party’s personnel\nmay retain certain information in their memories from access to the\nEvaluation Material. The portion(s) of such information, which are\nretained in such a person’s unaided memory without reference to any\ncopies of Evaluation Material in written, electronic or other fixed form,\nshall be known as “Residual Information.” Subject to any copyrights,\nmask work rights or patent rights of the disclosing party, utilization of\nsuch Residual Information by the receiving party will not in itself\nconstitute a breach of this Agreement.\n6. Return of Evaluation Material. At any time upon the request of\neither disclosing party for any reason, each receiving party will\npromptly deliver to the disclosing party or destroy all written\nEvaluation Material furnished to the receiving party or its\nRepresentatives by or on behalf of the disclosing party pursuant hereto\n(including all copies thereof and extracts therefrom). In no event shall\neither party be obligated to disclose or provide the Evaluation Material\nprepared by it or by its Representatives, privileged communications or\nindependently developed materials to the other party. Notwithstanding\nthe return or destruction of the Evaluation Material, each party and its\nRepresentatives, unless otherwise provided herein, will continue to be\nbound by its obligations of confidentiality and other obligations\nhereunder for a period of one (1) year from the date hereof, provided\nthat with respect to trade secrets, the obligation of confidentiality shall\ncontinue for so long as such information is subject to protection as a\ntrade secret by the disclosing party.\n7. No Representation of Accuracy. Each party understands and\nacknowledges that neither party nor any of its Representatives makes\nany representation or warranty, express or implied, as to the accuracy\nor completeness of the Evaluation Material made available by it or to\nit. Each party agrees that neither party nor any of its Representatives\nshall have any liability to the other party or to any of its\nRepresentatives relating to or resulting from the use of or reliance upon\nsuch other party’s Evaluation Material or any errors therein or\nomissions therefrom. With respect to the Evaluation Material, only\nthose representations or warranties which are made in a final definitive\nagreement regarding the Transaction, when, as and if executed, and\nsubject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. No Further Obligations. Each party understands and agrees that\nno contract or agreement providing for any Transaction involving the\nparties shall be deemed to exist between the parties unless and until a\nfinal definitive agreement has been executed and delivered. Each party\nalso agrees that unless and until a final definitive agreement regarding\na Transaction between the parties has been executed and delivered,\nneither party will be under any legal obligation of any kind whatsoever\nwith respect to such a Transaction by virtue of this Agreement except\nfor the matters specifically agreed to herein. Both parties further\nacknowledge and agree that each party reserves the right, in its sole\ndiscretion, to provide or not provide Evaluation Material to the\nreceiving party under this Agreement, to reject any and all proposals\nmade by the other party or any of its Representatives with regard to a\nTransaction between the parties, and to terminate discussions and\nnegotiations at any time.\n \n9. Injunctive Relief. It is further understood and agreed that money\ndamages may not be a sufficient remedy for any breach of this\nAgreement by either party or any of its Representatives and that the\nnon-breaching party may be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach.\nSuch remedies shall not be deemed to be the exclusive remedies for a\nbreach of this Agreement but shall be in addition to all other remedies\navailable at law or equity.\n10. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California\napplicable to agreements made and to be performed within such State\nwithout regard to choice of law rules.\n11. Term. This Agreement between the parties shall expire on the\nearlier of (a) the execution of a definitive agreement between the\nparties (unless otherwise provided in such agreement) and (b) one year\nfrom the date hereof, provided that the terms of paragraph 6 shall\nsurvive the termination or expiration of this Agreement, and provided\nfurther that such expiration shall not relieve any party for liability for\nbreach of this Agreement occurring before such expiration.\n12. Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of\nwhich shall constitute one and the same instrument.\n13. Miscellaneous.\n(@) Unless the context of this Agreement otherwise clearly requires,\n(i) references to the plural include the singular, and references to the\nsingular include the plural, (ii) references to any gender include the\nother genders, (iii) the words “include,” “includes” and “including” do\nnot limit the preceding terms or words and shall be deemed to be\nfollowed by the words “without limitation,” and (iv) the terms\n“hereof,” “herein,” “hereunder,” “hereto” and similar terms in this\nAgreement refer to this Agreement as a whole and not to any particular\nprovision of this Agreement.\n(b) No failure or delay by a party or any of its Representatives in\nexercising any right, power or privileges under this Agreement shall\noperate as a waiver thereof nor shall any single or partial exercise\nthereof preclude any other or further exercise of any right, power or\nprivilege hereunder.\n(c) In case any provision of this agreement shall be invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining\nprovisions of the Agreement shall not in any way be affected or\nimpaired thereby.\n(d) This Agreement contains the entire and sole agreement between\nthe parties concerning the subject matter hereof. This Agreement may\nbe changed only by a written agreement signed by the parties hereto or\ntheir authorized representatives.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding Agreement between Yahoo and the undersigned Counterparty. This Agreement may be executed by a facsimile\nsignature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nYahoo! Inc.\nBy: /s/ Marcus Shen\nName: Marcus Shen\nTitle: Head of Corporate Development\nFacsimile: 408.349.7721\nInterclick, Inc. Inc.\nBy: /s/ Michael Katz\nName: Michael Katz\nTitle: Chief Executive Officer\nFacsimile: 646.558.1223	EX-99.(D)(4) 13 d250779dex99d4.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis\nMutual Nondisclosure Agreement (this "Agreement") is entered into this 2nd day of July, 2011, by and between Yahoo! Inc., a Delaware\ncorporation ("Yahoo") and the undersigned entity ("Counterparty"). Yahoo and Counterparty hereby agree as follows:\nIn connection with our mutual consideration of a possible\ndoes not include information which (i) is or becomes generally\nstrategic transaction (a "Transaction") Yahoo and Counterparty expect\navailable to the public other than as a result of a breach of this\nto make available to one another certain information concerning their\nAgreement by the receiving party or its Representatives; (ii) was within\nrespective businesses including, but not limited to, technology,\nthe receiving party's possession prior to its being furnished to the\nfinancial forecasts, financial condition, operations, assets and liabilities\nreceiving party by or on behalf of the disclosing party, provided that to\nand business strategies. As a condition to such information being\nthe receiving party's knowledge, the source of such information is not\nfurnished to each party and its subsidiaries, directors, officers,\nand was not bound at the time of delivery by a confidentiality\nemployees, agents or advisors (including, attorneys, accountants,\nagreement with, or other contractual, legal or fiduciary obligation of\nconsultants, bankers and financial advisors) (collectively,\nconfidentiality to, the disclosing party; (iii) is or becomes available to\n"Representatives"), each party agrees to treat all Evaluation Material in\nthe receiving party on a non-confidential basis from a source that to the\naccordance with the provisions of this Agreement, and to take or\nreceiving party's knowledge, is not and was not bound at the time such\nabstain from taking certain other actions hereinafter set forth.\ninformation becomes available by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the\n1. Evaluation Material. The term "Evaluation Material" shall be\ndisclosing party with respect to such information; or (iv) is\ndeemed to include all information concerning the other party (whether\nindependently developed by the receiving party without use of\nprepared by the disclosing party or its Representatives) which is\nEvaluation Material.\nfurnished to a party or to its Representatives in connection with the\nparties' evaluation of a possible Transaction, in each case by or on\n2. Use of Evaluation Material. Each party hereby agrees that it and\nbehalf of the disclosing party in accordance with the provisions of this\nits Representatives shall use the other's Evaluation Material solely for\nAgreement. The term "Evaluation Material" also shall include all\nthe purpose of evaluating a possible Transaction between the parties.\nnotes, analyses, compilations, studies, interpretations or other\nEach party and its Representatives will keep the Evaluation Material\ndocuments prepared by each party or its Representatives which\nconfidential and will not disclose for any purpose any of the other's\ncontain, reflect or are based upon, in whole or in part, the information\nEvaluation Material in any manner whatsoever; provided, however,\nfurnished to such party or its Representatives pursuant hereto which is\nthat (i) the receiving party may make any disclosure of such\nnot available to the general public. Notwithstanding the foregoing, the\ninformation to the extent to which the disclosing party gives its prior\nterm "Evaluation Material"\nwritten consent and (ii) any of such information\n1\nmay be disclosed to the receiving party's Representatives who need to\nRepresentatives are nonetheless, under the advice of counsel, legally\nknow such information for the sole purpose of evaluating a possible\nrequired to disclose the other party's Evaluation Material, the party\nTransaction between the parties, provided that each such\nrequested or required to make the disclosure or its Representative may,\nRepresentative agrees to treat such information as confidential. Each\nwithout liability hereunder, disclose only that portion of the other\nparty agrees to be responsible for any breach of this Agreement by any\nparty's Evaluation Material which such counsel advises is legally\nof its Representatives.\nrequired to be disclosed.\n3. Non-Disclosure In addition, each party agrees that, without the\n5. Independent Development. The disclosing party understands that\nprior written consent of the other party, neither the receiving party nor\nthe receiving party may currently or in the future be developing\nits Representatives will disclose to any other person the fact that any\ninformation internally, or receiving information from other parties that\nEvaluation Material has been made available hereunder, that\nmay be similar to the disclosing party's Evaluation Material. Nothing\ndiscussions or negotiations are taking place concerning a possible\nin this Agreement will prohibit the receiving party from developing (or\nTransaction involving the parties or any of the terms, conditions or\nhaving developed for it) products, concepts, systems or techniques that\nother facts with respect thereto (including the status thereof); provided\nare similar to or compete with the products, concepts, systems or\nthat a party may make such disclosure subject to the provisions of\ntechniques contemplated by or embodied in the disclosing party's\nSection 4 hereof.\nEvaluation Material provided that the receiving party does not violate\nany of its obligations under this Agreement. Neither party shall have\n4. Required Disclosure. In the event that a party or its\nany obligation to limit or restrict the assignment of its employees or\nRepresentatives are requested or required by applicable law, regulation\nconsultants as a result of such party having had access to Evaluation\nor legal process (including oral questions, interrogatories, requests for\nMaterial. Each party acknowledges that the other party's personnel\ninformation or documents in legal proceedings, subpoena, civil\nmay retain certain information in their memories from access to the\ninvestigative demand or other similar process) to disclose any of the\nEvaluation Material. The portion(s) of such information, which are\nother party's Evaluation Material, the party requested or required to\nretained in such a person's unaided memory without reference to any\nmake the disclosure shall provide the other party with prompt notice,\ncopies of Evaluation Material in written, electronic or other fixed form,\nunless notice is prohibited by law, of any such request or requirement\nshall be known as "Residual Information." Subject to any copyrights,\nSO that the other party may seek a protective order or other appropriate\nmask work rights or patent rights of the disclosing party, utilization of\nremedy and/or waive compliance with the provisions of this\nsuch Residual Information by the receiving party will not in itself\nAgreement. If, in the absence of a protective order or other remedy or\nconstitute a breach of this Agreement.\nthe receipt of a waiver by such other party, the party requested or\nrequired to make the disclosure or any of its\n2\n6. Return of Evaluation Material. At any time upon the request of\n8.\nNo Further Obligations. Each party understands and agrees that\neither disclosing party for any reason, each receiving party will\nno contract or agreement providing for any Transaction involving the\npromptly deliver to the disclosing party or destroy all written\nparties shall be deemed to exist between the parties unless and until a\nEvaluation Material furnished to the receiving party or its\nfinal definitive agreement has been executed and delivered. Each party\nRepresentatives by or on behalf of the disclosing party pursuant hereto\nalso agrees that unless and until a final definitive agreement regarding\n(including all copies thereof and extracts therefrom). In no event shall\na Transaction between the parties has been executed and delivered,\neither party be obligated to disclose or provide the Evaluation Material\nneither party will be under any legal obligation of any kind whatsoever\nprepared by it or by its Representatives, privileged communications or\nwith respect to such a Transaction by virtue of this Agreement except\nindependently developed materials to the other party. Notwithstanding\nfor the matters specifically agreed to herein. Both parties further\nthe return or destruction of the Evaluation Material, each party and its\nacknowledge and agree that each party reserves the right, in its sole\nRepresentatives, unless otherwise provided herein, will continue to be\ndiscretion, to provide or not provide Evaluation Material to the\nbound by its obligations of confidentiality and other obligations\nreceiving party under this Agreement, to reject any and all proposals\nhereunder for a period of one (1) year from the date hereof, provided\nmade by the other party or any of its Representatives with regard to a\nthat with respect to trade secrets, the obligation of confidentiality shall\nTransaction between the parties, and to terminate discussions and\ncontinue for so long as such information is subject to protection as a\nnegotiations at any time.\ntrade secret by the disclosing party.\n9. Injunctive Relief. It is further understood and agreed that money\n7. No Representation of Accuracy.. Each party understands and\ndamages may not be a sufficient remedy for any breach of this\nacknowledges that neither party nor any of its Representatives makes\nAgreement by either party or any of its Representatives and that the\nany representation or warranty, express or implied, as to the accuracy\nnon-breaching party may be entitled to equitable relief, including\nor completeness of the Evaluation Material made available by it or to\ninjunction and specific performance, as a remedy for any such breach.\nit. Each party agrees that neither party nor any of its Representatives\nSuch remedies shall not be deemed to be the exclusive remedies for a\nshall have any liability to the other party or to any of its\nbreach of this Agreement but shall be in addition to all other remedies\nRepresentatives relating to or resulting from the use of or reliance upon\navailable at law or equity.\nsuch other party's Evaluation Material or any errors therein or\nomissions therefrom. With respect to the Evaluation Material, only\n10. Governing Law. This Agreement shall be governed by and\nthose representations or warranties which are made in a final definitive\nconstrued in accordance with the laws of the State of California\nagreement regarding the Transaction, when, as and if executed, and\napplicable to agreements made and to be performed within such State\nsubject to such limitations and restrictions as may be specified therein,\nwithout regard to choice of law rules.\nwill have any legal effect.\n3\n11. Term. This Agreement between the parties shall expire on the\n(c) In case any provision of this agreement shall be invalid, illegal or\nearlier of (a) the execution of a definitive agreement between the\nunenforceable, the validity, legality and enforceability of the remaining\nparties (unless otherwise provided in such agreement) and (b) one year\nprovisions of the Agreement shall not in any way be affected or\nfrom the date hereof, provided that the terms of paragraph 6 shall\nimpaired thereby.\nsurvive the termination or expiration of this Agreement, and provided\nfurther that such expiration shall not relieve any party for liability for\n(d) This Agreement contains the entire and sole agreement between\nbreach of this Agreement occurring before such expiration.\nthe parties concerning the subject matter hereof. This Agreement may\nbe changed only by a written agreement signed by the parties hereto or\n12. Counterparts. This Agreement may be executed in two or more\ntheir authorized representatives.\ncounterparts, each of which shall be deemed an original, but all of\nwhich shall constitute one and the same instrument.\n13. Miscellaneous.\n(a) Unless the context of this Agreement otherwise clearly requires,\n(i) references to the plural include the singular, and references to the\nsingular include the plural, (ii) references to any gender include the\nother genders, (iii) the words "include," "includes" and "including" do\nnot limit the preceding terms or words and shall be deemed to be\nfollowed by the words "without limitation," and (iv) the terms\n"hereof," "herein," "hereunder," "hereto" and similar terms in this\nAgreement refer to this Agreement as a whole and not to any particular\nprovision of this Agreement.\n(b) No failure or delay by a party or any of its Representatives in\nexercising any right, power or privileges under this Agreement shall\noperate as a waiver thereof nor shall any single or partial exercise\nthereof preclude any other or further exercise of any right, power or\nprivilege hereunder.\n4\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding Agreement between Yahoo and the undersigned Counterparty. This Agreement may be executed by a facsimile\nsignature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nYahoo! Inc.\nBy: /s/ Marcus Shen\nName:\nMarcus Shen\nTitle:\nHead of Corporate Development\nFacsimile: 408.349.7721\nInterclick, Inc Inc.\nBy: /s/ Michae Katz\nName:\nMichael Katz\nTitle:\nChief Executive Officer\nFacsimile: 646.558.1223\n5	EX-99.(D)(4) 13 d250779dex99d4.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) is entered into this 2nd day of July, 2011, by and between Yahoo! Inc., a Delaware\ncorporation (“Yahoo”) and the undersigned entity (“Counterparty”). Yahoo and Counterparty hereby agree as follows:\n1\nIn connection with our mutual consideration of a possible\nstrategic transaction (a “Transaction”) Yahoo and Counterparty expect\nto make available to one another certain information concerning their\nrespective businesses including, but not limited to, technology,\nfinancial forecasts, financial condition, operations, assets and liabilities\nand business strategies. As a condition to such information being\nfurnished to each party and its subsidiaries, directors, officers,\nemployees, agents or advisors (including, attorneys, accountants,\nconsultants, bankers and financial advisors) (collectively,\n“Representatives”), each party agrees to treat all Evaluation Material in\naccordance with the provisions of this Agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\n1. Evaluation Material. The term “Evaluation Material” shall be\ndeemed to include all information concerning the other party (whether\nprepared by the disclosing party or its Representatives) which is\nfurnished to a party or to its Representatives in connection with the\nparties’ evaluation of a possible Transaction, in each case by or on\nbehalf of the disclosing party in accordance with the provisions of this\nAgreement. The term “Evaluation Material” also shall include all\nnotes, analyses, compilations, studies, interpretations or other\ndocuments prepared by each party or its Representatives which\ncontain, reflect or are based upon, in whole or in part, the information\nfurnished to such party or its Representatives pursuant hereto which is\nnot available to the general public. Notwithstanding the foregoing, the\nterm “Evaluation Material”\ndoes not include information which (i) is or becomes generally\navailable to the public other than as a result of a breach of this\nAgreement by the receiving party or its Representatives; (ii) was within\nthe receiving party’s possession prior to its being furnished to the\nreceiving party by or on behalf of the disclosing party, provided that to\nthe receiving party’s knowledge, the source of such information is not\nand was not bound at the time of delivery by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the disclosing party; (iii) is or becomes available to\nthe receiving party on a non-confidential basis from a source that to the\nreceiving party’s knowledge, is not and was not bound at the time such\ninformation becomes available by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the\ndisclosing party with respect to such information; or (iv) is\nindependently developed by the receiving party without use of\nEvaluation Material.\n2. Use of Evaluation Material. Each party hereby agrees that it and\nits Representatives shall use the other’s Evaluation Material solely for\nthe purpose of evaluating a possible Transaction between the parties.\nEach party and its Representatives will keep the Evaluation Material\nconfidential and will not disclose for any purpose any of the other’s\nEvaluation Material in any manner whatsoever; provided, however,\nthat (i) the receiving party may make any disclosure of such\ninformation to the extent to which the disclosing party gives its prior\nwritten consent and (ii) any of such information\n2\nmay be disclosed to the receiving party’s Representatives who need to\nknow such information for the sole purpose of evaluating a possible\nTransaction between the parties, provided that each such\nRepresentative agrees to treat such information as confidential. Each\nparty agrees to be responsible for any breach of this Agreement by any\nof its Representatives.\n3. Non-Disclosure. In addition, each party agrees that, without the\nprior written consent of the other party, neither the receiving party nor\nits Representatives will disclose to any other person the fact that any\nEvaluation Material has been made available hereunder, that\ndiscussions or negotiations are taking place concerning a possible\nTransaction involving the parties or any of the terms, conditions or\nother facts with respect thereto (including the status thereof); provided\nthat a party may make such disclosure subject to the provisions of\nSection 4 hereof.\n4. Required Disclosure. In the event that a party or its\nRepresentatives are requested or required by applicable law, regulation\nor legal process (including oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil\ninvestigative demand or other similar process) to disclose any of the\nother party’s Evaluation Material, the party requested or required to\nmake the disclosure shall provide the other party with prompt notice,\nunless notice is prohibited by law, of any such request or requirement\nso that the other party may seek a protective order or other appropriate\nremedy and/or waive compliance with the provisions of this\nAgreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver by such other party, the party requested or\nrequired to make the disclosure or any of its\nRepresentatives are nonetheless, under the advice of counsel, legally\nrequired to disclose the other party’s Evaluation Material, the party\nrequested or required to make the disclosure or its Representative may,\nwithout liability hereunder, disclose only that portion of the other\nparty’s Evaluation Material which such counsel advises is legally\nrequired to be disclosed.\n5. Independent Development. The disclosing party understands that\nthe receiving party may currently or in the future be developing\ninformation internally, or receiving information from other parties that\nmay be similar to the disclosing party’s Evaluation Material. Nothing\nin this Agreement will prohibit the receiving party from developing (or\nhaving developed for it) products, concepts, systems or techniques that\nare similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the disclosing party’s\nEvaluation Material provided that the receiving party does not violate\nany of its obligations under this Agreement. Neither party shall have\nany obligation to limit or restrict the assignment of its employees or\nconsultants as a result of such party having had access to Evaluation\nMaterial. Each party acknowledges that the other party’s personnel\nmay retain certain information in their memories from access to the\nEvaluation Material. The portion(s) of such information, which are\nretained in such a person’s unaided memory without reference to any\ncopies of Evaluation Material in written, electronic or other fixed form,\nshall be known as “Residual Information.” Subject to any copyrights,\nmask work rights or patent rights of the disclosing party, utilization of\nsuch Residual Information by the receiving party will not in itself\nconstitute a breach of this Agreement.\n3\n6. Return of Evaluation Material. At any time upon the request of\neither disclosing party for any reason, each receiving party will\npromptly deliver to the disclosing party or destroy all written\nEvaluation Material furnished to the receiving party or its\nRepresentatives by or on behalf of the disclosing party pursuant hereto\n(including all copies thereof and extracts therefrom). In no event shall\neither party be obligated to disclose or provide the Evaluation Material\nprepared by it or by its Representatives, privileged communications or\nindependently developed materials to the other party. Notwithstanding\nthe return or destruction of the Evaluation Material, each party and its\nRepresentatives, unless otherwise provided herein, will continue to be\nbound by its obligations of confidentiality and other obligations\nhereunder for a period of one (1) year from the date hereof, provided\nthat with respect to trade secrets, the obligation of confidentiality shall\ncontinue for so long as such information is subject to protection as a\ntrade secret by the disclosing party.\n7. No Representation of Accuracy. Each party understands and\nacknowledges that neither party nor any of its Representatives makes\nany representation or warranty, express or implied, as to the accuracy\nor completeness of the Evaluation Material made available by it or to\nit. Each party agrees that neither party nor any of its Representatives\nshall have any liability to the other party or to any of its\nRepresentatives relating to or resulting from the use of or reliance upon\nsuch other party’s Evaluation Material or any errors therein or\nomissions therefrom. With respect to the Evaluation Material, only\nthose representations or warranties which are made in a final definitive\nagreement regarding the Transaction, when, as and if executed, and\nsubject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. No Further Obligations. Each party understands and agrees that\nno contract or agreement providing for any Transaction involving the\nparties shall be deemed to exist between the parties unless and until a\nfinal definitive agreement has been executed and delivered. Each party\nalso agrees that unless and until a final definitive agreement regarding\na Transaction between the parties has been executed and delivered,\nneither party will be under any legal obligation of any kind whatsoever\nwith respect to such a Transaction by virtue of this Agreement except\nfor the matters specifically agreed to herein. Both parties further\nacknowledge and agree that each party reserves the right, in its sole\ndiscretion, to provide or not provide Evaluation Material to the\nreceiving party under this Agreement, to reject any and all proposals\nmade by the other party or any of its Representatives with regard to a\nTransaction between the parties, and to terminate discussions and\nnegotiations at any time.\n9. Injunctive Relief. It is further understood and agreed that money\ndamages may not be a sufficient remedy for any breach of this\nAgreement by either party or any of its Representatives and that the\nnon-breaching party may be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach.\nSuch remedies shall not be deemed to be the exclusive remedies for a\nbreach of this Agreement but shall be in addition to all other remedies\navailable at law or equity.\n10. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California\napplicable to agreements made and to be performed within such State\nwithout regard to choice of law rules.\n4\n11. Term. This Agreement between the parties shall expire on the\nearlier of (a) the execution of a definitive agreement between the\nparties (unless otherwise provided in such agreement) and (b) one year\nfrom the date hereof, provided that the terms of paragraph 6 shall\nsurvive the termination or expiration of this Agreement, and provided\nfurther that such expiration shall not relieve any party for liability for\nbreach of this Agreement occurring before such expiration.\n12. Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of\nwhich shall constitute one and the same instrument.\n13. Miscellaneous.\n(a) Unless the context of this Agreement otherwise clearly requires,\n(i) references to the plural include the singular, and references to the\nsingular include the plural, (ii) references to any gender include the\nother genders, (iii) the words “include,” “includes” and “including” do\nnot limit the preceding terms or words and shall be deemed to be\nfollowed by the words “without limitation,” and (iv) the terms\n“hereof,” “herein,” “hereunder,” “hereto” and similar terms in this\nAgreement refer to this Agreement as a whole and not to any particular\nprovision of this Agreement.\n(b) No failure or delay by a party or any of its Representatives in\nexercising any right, power or privileges under this Agreement shall\noperate as a waiver thereof nor shall any single or partial exercise\nthereof preclude any other or further exercise of any right, power or\nprivilege hereunder.\n(c) In case any provision of this agreement shall be invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining\nprovisions of the Agreement shall not in any way be affected or\nimpaired thereby.\n(d) This Agreement contains the entire and sole agreement between\nthe parties concerning the subject matter hereof. This Agreement may\nbe changed only by a written agreement signed by the parties hereto or\ntheir authorized representatives.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding Agreement between Yahoo and the undersigned Counterparty. This Agreement may be executed by a facsimile\nsignature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nYahoo! Inc.\nBy: /s/ Marcus Shen\nName:\nMarcus Shen\nTitle:\nHead of Corporate Development\nFacsimile: 408.349.7721\nInterclick, Inc. Inc.\nBy: /s/ Michael Katz\nName:\nMichael Katz\nTitle:\nChief Executive Officer\nFacsimile: 646.558.1223\n5
ea3014a2f8576fcb8159f0c0b2e25dc3.pdf	effective_date jurisdiction party term	1.\n2.\nExhibit A\nCONFIDENTIALITY/ NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. (“Employer”) and Dustin Suchter\n(“Executive”).\nPurpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information – including but not limited\nto information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property – which Employer desires\nExecutive to treat as confidential during and after the termination of Executive’s employment.\nDefinition.\n"Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as “trade secrets” are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining “trade secrets” are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer ’s\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure.\n3.\n4.\n5.\nOwnership.\n6.\n7.\nIt shall be presumed that any information in the possession of Executive that has been disclosed to Executive by\nEmployer, or any agent or representative of Employer, is not within any of the exceptions to the definition of\nConfidential Information set forth in the previous sentence, and the burden is on Executive to prove otherwise by written\nrecords and documentation.\nNon-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive’s performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive’s\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\nMaintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\nAll documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\nNo License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n-2-\n8.\n9.\nTerm. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\nRemedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nDUSTIN SUCHTER (“Executive”):\nDate:\nSOCIAL REALITY, INC. (“Employer”):\nBy:\nName: Chris Miglino\nTitle: Chief Executive Officer\nDate:\n-3-	Exhibit A\nCONFIDENTIALITY/ NON-DISCIL.OSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. (“Employer”) and Dustin Suchter\n(“Executive”).\n1. Purpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information — including but not limited\nto information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property — which Employer desires\nExecutive to treat as confidential during and after the termination of Executive’s employment.\n2. Definition. "Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as “trade secrets” are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining “trade secrets” are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer’s\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure.\nIt shall be presumed that any information in the possession of Executive that has been disclosed to Executive by\nEmployer, or any agent or representative of Employer, is not within any of the exceptions to the definition of\nConfidential Information set forth in the previous sentence, and the burden is on Executive to prove otherwise by written\nrecords and documentation.\n3. Non-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive’s performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive’s\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\n4. Maintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\n5. Ownership. All documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\n7. No License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n-\n8. Term. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\n9. Remedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nDUSTIN SUCHTER (“Executive”):\nDate:\nSOCIAL REALITY, INC. (“Employer”):\nBy:\nName: Chris Miglino\nTitle:  Chief Executive Officer\nDate:	Exhibit A\nCONFIDENTIALITY ENTIALITY/NON-DISCLOSURI AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement") is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. ("Employer") and Dustin Suchter\n("Executive").\n1.\nPurpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information including but not limited\nto information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property which Employer desires\nExecutive to treat as confidential during and after the termination of Executive's employment.\n2. Definition. "Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as "trade secrets" are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining "trade secrets" are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements,\ninventions,\nformulas,\nsoftware\nprograms,\nbusiness\nplans,\nprocesses,\nusername\nand\npassword\ninformation,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill\nsets,\nand\njob\nduties\nof\nvendors,\nemployees,\nindependent\ncontractors,\nor\nExecutives,\nterms\nof\nemployment\nfor\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer's\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure.\nIt shall be presumed that any information in the possession of Executive that has been disclosed to Executive by\nEmployer,\nor\nany\nagent\nor\nrepresentative\nof\nEmployer,\nis\nnot\nwithin\nany\nof\nthe\nexceptions\nto\nthe\ndefinition\nof\nConfidential Information set forth in the previous sentence, and the burden is on Executive to prove otherwise by written\nrecords and documentation.\n3.\nNon-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive's performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization\nfrom\na\nduly\nauthorized\nrepresentative\nof\nthe\nEmployer.\nDuring\nand\nafter\ntermination\nof\nthe\nExecutive's\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\n4.\nMaintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\n5. Ownership. All documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\n7.\nNo License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n-2-\n8.\nTerm. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\n9.\nRemedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nDUSTIN SUCHTER ("Executive"):\nDate:\nSOCIAL REALITY, INC. ("Employer"):\nBy:\nName: Chris Miglino\nTitle: Chief Executive Officer\nDate:\n-3-	1.\n2.\nExhibit A\nCONFIDENTIALITY/ NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. (“Employer”) and Dustin Suchter\n(“Executive”).\nPurpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information – including but not limited\nto information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property – which Employer desires\nExecutive to treat as confidential during and after the termination of Executive’s employment.\nDefinition.\n"Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as “trade secrets” are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining “trade secrets” are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer ’s\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure.\n3.\n4.\n5.\nOwnership.\n6.\n7.\nIt shall be presumed that any information in the possession of Executive that has been disclosed to Executive by\nEmployer, or any agent or representative of Employer, is not within any of the exceptions to the definition of\nConfidential Information set forth in the previous sentence, and the burden is on Executive to prove otherwise by written\nrecords and documentation.\nNon-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive’s performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive’s\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\nMaintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\nAll documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\nNo License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n-2-\n8.\n9.\nTerm. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\nRemedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nDUSTIN SUCHTER (“Executive”):\nDate:\nSOCIAL REALITY, INC. (“Employer”):\nBy:\nName: Chris Miglino\nTitle: Chief Executive Officer\nDate:\n-3-
eab914221a16ac5daadfbd31d354c03e.pdf	effective_date jurisdiction party term	EX-99.(E)(6) 5 dex99e6.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN BIOSITE INC AND\nBECKMAN COULTER, INC.\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY A GREEMENT (this “Agreement”) is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n(“Biosite”), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the “Parties” and individually as a “Party”) separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party’s “Representatives” will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries\nor other affiliates.\n(b) the term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient’s Representatives without reliance\non the information received from Provider or any of the Provider’s Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient’s Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a “Definitive Agreement”) will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)”\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the “Standstill Period”), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Biosite or any of Biosite’s Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite’s announcement of such definitive agreement Beckman Coulter shall be\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a “Specified Employee” of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson’s employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of\nany of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January 7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the “Pre-Existing Agreements”). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above.\nBIOSITE INCORPORATED\nBECKMAN COULTER, INC.\nBy: /s/ Kim D. Blickenstaff\nBy: /s/ Arnold A. Pinkston\nName: Kim D. Blickenstaff\nName: Arnold A. Pinkston\nTitle: Chairman & CEO\nTitle: Senior Vice President & General Counsel\nAddress: 9975 Summers Ridge Road\nSan Diego, CA 92121\nAddress: 4300 N. Harbor Blvd.\nFullerton, CA 92835\nMarch 23, 2007\nSTRICTLY CONFIDENTIAL\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, California 92121\nDear Mr. Blickenstaff:\nThis letter will confirm our agreement in connection with the willingness of Beckman Coulter, Inc. (“Beckman”) to proceed with further\ndiscussions regarding a potential transaction between Biosite Incorporated (the “Company”) and Beckman (a “Possible Transaction”). This letter is\nexecuted in connection with, and in reliance upon, the completed consideration by the respective Boards of Directors of each of the Company and\nBeckman of such a Possible Transaction at meetings to be conducted between Friday, March 23, 2007 and Saturday, March 24, 2007.\n1. No Solicitation; No Shop. The Company agrees that from the execution of this letter by the Company through 6:00 A.M. California time on\nMonday, March 26, 2007 (the “Specified Period”), the Company will not, and will cause its Representatives (as hereinafter defined) not to, make any\noutgoing calls or other outgoing communications during the Specified Period to any person that has not first contacted the Company or any of its\nRepresentatives during the Specified Period to directly or indirectly solicit any inquiries or proposals that constitute, or may reasonably be expected\nto lead to, any Acquisition Proposal (as hereinafter defined) (it being understood that, for the avoidance of doubt, nothing in this letter shall prohibit\nor otherwise limit: (a) the Company or any of its Representatives from responding in any manner other than as prohibited by the immediately\nfollowing paragraph to any person that initiates contact with the Company or any of its Representatives during the Specified Period; or (b) the\nCompany or any of its Representatives from continuing business diligence discussions with any person or entity in furtherance of such pre-existing\ndiscussions).\nIn addition, the Company further agrees that during the Specified Period (and otherwise as long as prohibited under the Confidentiality\nAgreement referred to below) it will not directly or indirectly take any action during the Specified Period to disclose to any third party (other than\nthe Company’s Representatives) the existence of such bid or the terms or value thereof.\nFor purposes of this letter agreement, “Acquisition Proposal” shall mean any proposal or offer (other than one relating to a Possible\nTransaction) involving the Company or any of its subsidiaries for, or that could be reasonably expected to lead to: (a) any merger, consolidation,\nshare exchange, sale of equity or other equity investment, recapitalization, business combination or other similar transaction involving the Company\nor any of its subsidiaries, (b) any sale, lease, exchange, license, mortgage, pledge, transfer or other disposition of a substantial part of the\nconsolidated assets of the Company and its subsidiaries, or (c) any offer for all or any portion of\nMarch 23, 2007\nPage 2\nthe outstanding shares of capital stock or ownership interests of the Company or any of its subsidiaries. For purposes of this letter agreement, the\nterm “Representatives” shall include the members, directors, managers, officers, employees, agents, affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended), partners and advisors of the Company and those of its subsidiaries, affiliates and/or divisions\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n2. Disclosure. Each part to this letter agreement agrees that the existence and terms of this letter constitute “Confidential Information”, as such\nterm is defined in the Confidentiality Agreement dated May 11, 2006 between the Company and Beckman, as amended, and any disclosure of such\nConfidential Information shall be subject to the restrictions, terms and conditions of the Confidentiality Agreement.\n3. No Agreement. Each party to this letter agreement agrees that no contract or agreement providing for any Possible Transaction shall be\ndeemed to exist between the parties hereto unless and until a final definitive agreement has been executed and delivered.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement among you and us.\nBeckman Coulter, Inc.,\na Delaware corporation\nBy: /s/ Scott Garrett\nName: Scott Garrett\nTitle: President, Chief Executive\nCONFIRMED AND AGREED\nas of the date first written above:\nBiosite Incorporated,\na Delaware corporation\nBy: /s/ Kim D. Blickenstaff\nName: Kim D. Blickenstaff\nTitle: Chairman & CEO	EX-99.(E)(6) 5 dex99e6.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN BIOSITE INC AND\nBECKMAN COULTER, INC.\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n(“Biosite”), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the “Parties” and individually as a “Party”) separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party’s “Representatives” will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries\nor other affiliates.\n(b) the term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n \n2. Confidential Information. For purposes of this Agreement, each Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient’s Representatives without reliance\non the information received from Provider or any of the Provider’s Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient’s Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a “Definitive Agreement”) will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)”\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the “Standstill Period”), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Biosite or any of Biosite’s Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite’s announcement of such definitive agreement Beckman Coulter shall be\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a “Specified Employee” of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson’s employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of\nany of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties” mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January 7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the “Pre-Existing Agreements”). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above. BIOSITE INCORPORATED\nBy: /s/ Kim D. Blickenstaff\nName: Kim D. Blickenstaff\nTitle:  Chairman & CEO\nAddress: 9975 Summers Ridge Road\nSan Diego, CA 92121\nBECKMAN COULTER, INC.\nBy: /s/ Arnold A. Pinkston\nName: Arnold A. Pinkston\nTitle:  Senior Vice President & General Counsel\nAddress: 4300 N. Harbor Blvd.\nFullerton, CA 92835\nMarch 23, 2007\nSTRICTLY CONFIDENTIAL\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, California 92121\nDear Mr. Blickenstaff:\nThis letter will confirm our agreement in connection with the willingness of Beckman Coulter, Inc. (“Beckman”) to proceed with further\ndiscussions regarding a potential transaction between Biosite Incorporated (the “Company”) and Beckman (a “Possible Transaction”). This letter is\nexecuted in connection with, and in reliance upon, the completed consideration by the respective Boards of Directors of each of the Company and\nBeckman of such a Possible Transaction at meetings to be conducted between Friday, March 23, 2007 and Saturday, March 24, 2007.\n1. No Solicitation; No Shop. The Company agrees that from the execution of this letter by the Company through 6:00 A.M. California time on\nMonday, March 26, 2007 (the “Specified Period”), the Company will not, and will cause its Representatives (as hereinafter defined) not to, make any\noutgoing calls or other outgoing communications during the Specified Period to any person that has not first contacted the Company or any of its\nRepresentatives during the Specified Period to directly or indirectly solicit any inquiries or proposals that constitute, or may reasonably be expected\nto lead to, any Acquisition Proposal (as hereinafter defined) (it being understood that, for the avoidance of doubt, nothing in this letter shall prohibit\nor otherwise limit: (a) the Company or any of its Representatives from responding in any manner other than as prohibited by the immediately\nfollowing paragraph to any person that initiates contact with the Company or any of its Representatives during the Specified Period; or (b) the\nCompany or any of its Representatives from continuing business diligence discussions with any person or entity in furtherance of such pre-existing\ndiscussions).\nIn addition, the Company further agrees that during the Specified Period (and otherwise as long as prohibited under the Confidentiality\nAgreement referred to below) it will not directly or indirectly take any action during the Specified Period to disclose to any third party (other than\nthe Company’s Representatives) the existence of such bid or the terms or value thereof.\nFor purposes of this letter agreement, “Acquisition Proposal” shall mean any proposal or offer (other than one relating to a Possible\nTransaction) involving the Company or any of its subsidiaries for, or that could be reasonably expected to lead to: (a) any merger, consolidation,\nshare exchange, sale of equity or other equity investment, recapitalization, business combination or other similar transaction involving the Company\nor any of its subsidiaries, (b) any sale, lease, exchange, license, mortgage, pledge, transfer or other disposition of a substantial part of the\nconsolidated assets of the Company and its subsidiaries, or (c) any offer for all or any portion of\n \nMarch 23, 2007\nPage 2\nthe outstanding shares of capital stock or ownership interests of the Company or any of its subsidiaries. For purposes of this letter agreement, the\nterm “Representatives” shall include the members, directors, managers, officers, employees, agents, affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended), partners and advisors of the Company and those of its subsidiaries, affiliates and/or divisions\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n2. Disclosure. Each part to this letter agreement agrees that the existence and terms of this letter constitute “Confidential Information”, as such\nterm is defined in the Confidentiality Agreement dated May 11, 2006 between the Company and Beckman, as amended, and any disclosure of such\nConfidential Information shall be subject to the restrictions, terms and conditions of the Confidentiality Agreement.\n3. No Agreement. Each party to this letter agreement agrees that no contract or agreement providing for any Possible Transaction shall be\ndeemed to exist between the parties hereto unless and until a final definitive agreement has been executed and delivered.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement among you and us.\nBeckman Coulter, Inc.,\na Delaware corporation\nBy: /s/ Scott Garrett\nName: Scott Garrett\nTitle: President, Chief Executive\nCONFIRMED AND AGREED\nas of the date first written above:\nBiosite Incorporated,\na Delaware corporation\nBy: /s/ Kim D. Blickenstaff\nName: Kim D. Blickenstaff\nTitle: Chairman & CEO	EX-99.(E)(6) 5 dex99e6.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN BIOSITE INC AND\nBECKMAN COULTER, INC.\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this "Agreement") is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n("Biosite"), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, "Beckman Coulter"), on the other\nhand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred\nto\ncollectively as the "Parties" and individually as a "Party.") separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party's subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the "Provider"; and each Party, in its capacity as a recipient of information, is referred to\nin\nthis Agreement as the "Recipient.") This Agreement sets forth the Parties' obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party's "Representatives" will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party's subsidiaries\nor other affiliates.\n(b) the term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider's "Confidential Information" will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause "(a)" of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause "(a)" of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider's "Confidentia Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of\nthe Recipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider's Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient's Representatives without reliance\non the information received from Provider or any of the Provider's Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient's Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider's Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider's Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient's Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider's Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient's Representatives relating to or resulting from the use of any of the Provider's Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a "Definitive Agreement") will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient's disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required\nby\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient's Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider's Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate\nremedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider's Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will promptly deliver\nto the Provider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient's Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause\n"(b)"\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the "Standstill Period"), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any "solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n"(a)" of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause "(a)", "(b)", "(c)"\nor "(d)" of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause "(a)", "(b)", "(c)", "(d)" or "(e)" of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing;\nor\n(h) request or propose that Biosite or any of Biosite's Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite's announcement of such definitive agreement Beckman Coulter shall\nbe\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a "Specified Employee" of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson's employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party's Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free\nto\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party's Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party's Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party's Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party's rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure\nof\nany of the other Party's Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party's\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party's Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event\nof\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party's Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party's Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties' mutual\ndesire,\nintention\nand\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January\n7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the "Pre-Existing Agreements"). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above.\nBIOSITE INCORPORATED\nBECKMAN COULTER, INC.\nBy:\n/s/ Kim D. Blickenstaff\nBy:\n/s/ Arnold A. Pinkston\nName: Kim D. Blickenstaff\nName: Arnold A. Pinkston\nTitle: Chairman & CEO\nTitle: Senior Vice President & General Counsel\nAddress: 9975 Summers Ridge Road\nAddress: 4300 N. Harbor Blvd.\nSan Diego, CA 92121\nFullerton, CA 92835\nMarch 23, 2007\nSTRICTLY CONFIDENTIAL\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, California 92121\nDear Mr. Blickenstaff:\nThis letter will confirm our agreement in connection with the willingness of Beckman Coulter, Inc. ("Beckman") to proceed with further\ndiscussions regarding a potential transaction between Biosite Incorporated (the "Company.") and Beckman (a "Possible Transaction"). This letter is\nexecuted in connection with, and in reliance upon, the completed consideration by the respective Boards of Directors of each of the Company and\nBeckman of such a Possible Transaction at meetings to be conducted between Friday, March 23, 2007 and Saturday, March 24, 2007.\n1. No Solicitation; No Shop. The Company agrees that from the execution of this letter by the Company through 6:00 A.M. California time on\nMonday, March 26, 2007 (the "Specified Period"), the Company will not, and will cause its Representatives (as hereinafter defined) not to, make any\noutgoing calls or other outgoing communications during the Specified Period to any person that has not first contacted the Company or any of its\nRepresentatives during the Specified Period to directly or indirectly solicit any inquiries or proposals that constitute, or may reasonably be expected\nto lead to, any Acquisition Proposal (as hereinafter defined) (it being understood that, for the avoidance of doubt, nothing in this letter shall prohibit\nor otherwise limit: (a) the Company or any of its Representatives from responding in any manner other than as prohibited by the immediately\nfollowing paragraph to any person that initiates contact with the Company or any of its Representatives during the Specified Period; or (b) the\nCompany or any of its Representatives from continuing business diligence discussions with any person or entity in furtherance of such pre-existing\ndiscussions).\nIn addition, the Company further agrees that during the Specified Period (and otherwise as long as prohibited under the Confidentiality\nAgreement referred to below) it will not directly or indirectly take any action during the Specified Period to disclose to any third party (other than\nthe Company's Representatives) the existence of such bid or the terms or value thereof.\nFor purposes of this letter agreement, "Acquisition Proposal" shall mean any proposal or offer (other than one relating to a Possible\nTransaction) involving the Company or any of its subsidiaries for, or that could be reasonably expected to lead to: (a) any merger, consolidation,\nshare exchange, sale of equity or other equity investment, recapitalization, business combination or other similar transaction involving the Company\nor any of its subsidiaries, (b) any sale, lease, exchange, license, mortgage, pledge, transfer or other disposition of a substantial part of the\nconsolidated assets of the Company and its subsidiaries, or (c) any offer for all or any portion of\nMarch 23, 2007\nPage 2\nthe outstanding shares of capital stock or ownership interests of the Company or any of its subsidiaries. For purposes of this letter agreement, the\nterm "Representatives" shall include the members, directors, managers, officers, employees, agents, affiliates (as such term is defined under\nthe\nSecurities Exchange Act of 1934, as amended), partners and advisors of the Company and those of its subsidiaries, affiliates and/or divisions\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n2. Disclosure. Each part to this letter agreement agrees that the existence and terms of this letter constitute "Confidential Information", as such\nterm is defined in the Confidentiality Agreement dated May 11, 2006 between the Company and Beckman, as amended, and any disclosure of such\nConfidential Information shall be subject to the restrictions, terms and conditions of the Confidentiality Agreement.\n3. No Agreement. Each party to this letter agreement agrees that no contract or agreement providing for any Possible Transaction shall\nbe\ndeemed to exist between the parties hereto unless and until a final definitive agreement has been executed and delivered.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement among you and us.\nBeckman Coulter, Inc.,\na Delaware corporation\nBy: /s/ Scott Garrett\nName: Scott Garrett\nTitle: President, Chief Executive\nCONFIRMED AND AGREED\nas of the date first written above:\nBiosite Incorporated,\na Delaware corporation\nBy: /s/ Kim D. Blickenstaff\nName: Kim D. Blickenstaff\nTitle: Chairman & CEO	EX-99.(E)(6) 5 dex99e6.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN BIOSITE INC AND\nBECKMAN COULTER, INC.\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY A GREEMENT (this “Agreement”) is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n(“Biosite”), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the “Parties” and individually as a “Party”) separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party’s “Representatives” will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries\nor other affiliates.\n(b) the term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient’s Representatives without reliance\non the information received from Provider or any of the Provider’s Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient’s Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a “Definitive Agreement”) will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)”\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the “Standstill Period”), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Biosite or any of Biosite’s Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite’s announcement of such definitive agreement Beckman Coulter shall be\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a “Specified Employee” of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson’s employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of\nany of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January 7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the “Pre-Existing Agreements”). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above.\nBIOSITE INCORPORATED\nBECKMAN COULTER, INC.\nBy: /s/ Kim D. Blickenstaff\nBy: /s/ Arnold A. Pinkston\nName: Kim D. Blickenstaff\nName: Arnold A. Pinkston\nTitle: Chairman & CEO\nTitle: Senior Vice President & General Counsel\nAddress: 9975 Summers Ridge Road\nSan Diego, CA 92121\nAddress: 4300 N. Harbor Blvd.\nFullerton, CA 92835\nMarch 23, 2007\nSTRICTLY CONFIDENTIAL\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, California 92121\nDear Mr. Blickenstaff:\nThis letter will confirm our agreement in connection with the willingness of Beckman Coulter, Inc. (“Beckman”) to proceed with further\ndiscussions regarding a potential transaction between Biosite Incorporated (the “Company”) and Beckman (a “Possible Transaction”). This letter is\nexecuted in connection with, and in reliance upon, the completed consideration by the respective Boards of Directors of each of the Company and\nBeckman of such a Possible Transaction at meetings to be conducted between Friday, March 23, 2007 and Saturday, March 24, 2007.\n1. No Solicitation; No Shop. The Company agrees that from the execution of this letter by the Company through 6:00 A.M. California time on\nMonday, March 26, 2007 (the “Specified Period”), the Company will not, and will cause its Representatives (as hereinafter defined) not to, make any\noutgoing calls or other outgoing communications during the Specified Period to any person that has not first contacted the Company or any of its\nRepresentatives during the Specified Period to directly or indirectly solicit any inquiries or proposals that constitute, or may reasonably be expected\nto lead to, any Acquisition Proposal (as hereinafter defined) (it being understood that, for the avoidance of doubt, nothing in this letter shall prohibit\nor otherwise limit: (a) the Company or any of its Representatives from responding in any manner other than as prohibited by the immediately\nfollowing paragraph to any person that initiates contact with the Company or any of its Representatives during the Specified Period; or (b) the\nCompany or any of its Representatives from continuing business diligence discussions with any person or entity in furtherance of such pre-existing\ndiscussions).\nIn addition, the Company further agrees that during the Specified Period (and otherwise as long as prohibited under the Confidentiality\nAgreement referred to below) it will not directly or indirectly take any action during the Specified Period to disclose to any third party (other than\nthe Company’s Representatives) the existence of such bid or the terms or value thereof.\nFor purposes of this letter agreement, “Acquisition Proposal” shall mean any proposal or offer (other than one relating to a Possible\nTransaction) involving the Company or any of its subsidiaries for, or that could be reasonably expected to lead to: (a) any merger, consolidation,\nshare exchange, sale of equity or other equity investment, recapitalization, business combination or other similar transaction involving the Company\nor any of its subsidiaries, (b) any sale, lease, exchange, license, mortgage, pledge, transfer or other disposition of a substantial part of the\nconsolidated assets of the Company and its subsidiaries, or (c) any offer for all or any portion of\nMarch 23, 2007\nPage 2\nthe outstanding shares of capital stock or ownership interests of the Company or any of its subsidiaries. For purposes of this letter agreement, the\nterm “Representatives” shall include the members, directors, managers, officers, employees, agents, affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended), partners and advisors of the Company and those of its subsidiaries, affiliates and/or divisions\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n2. Disclosure. Each part to this letter agreement agrees that the existence and terms of this letter constitute “Confidential Information”, as such\nterm is defined in the Confidentiality Agreement dated May 11, 2006 between the Company and Beckman, as amended, and any disclosure of such\nConfidential Information shall be subject to the restrictions, terms and conditions of the Confidentiality Agreement.\n3. No Agreement. Each party to this letter agreement agrees that no contract or agreement providing for any Possible Transaction shall be\ndeemed to exist between the parties hereto unless and until a final definitive agreement has been executed and delivered.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement among you and us.\nBeckman Coulter, Inc.,\na Delaware corporation\nBy: /s/ Scott Garrett\nName: Scott Garrett\nTitle: President, Chief Executive\nCONFIRMED AND AGREED\nas of the date first written above:\nBiosite Incorporated,\na Delaware corporation\nBy: /s/ Kim D. Blickenstaff\nName: Kim D. Blickenstaff\nTitle: Chairman & CEO
eadddc22aff2d763e0aca8e139846626.pdf	effective_date jurisdiction party term	EX-99.(D)(6) 11 d420719dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is made and entered into this 13 day of July, 2012 by and between Avista Capital\nHoldings, LP (“Avista”) and Union Drilling, Inc., a Delaware corporation (“Union”).\nWHEREAS, Avista and Union are prepared to furnish each other with certain information in connection with a possible business transaction\nbetween Union and Avista’s Affiliate (defined below), Sidewinder Drilling, Inc. (the “Transaction”); and\nWHEREAS, in connection with the evaluation of the Transaction, the parties will be receiving, reviewing, and analyzing certain information\nwhich is confidential, proprietary or otherwise not generally available to the public with respect to the other party’s (including its Affiliates) business\noperations and services, the marketing or promotion of products and services, business policies and practices, technical, financial and strategic\ninformation and other matters.\nNOW, THEREFORE, for and in consideration of the premises and the agreements herein contained, the sufficiency of which is hereby\nacknowledged, the parties do hereby agree as follows:\n1. Definitions. As used in this Agreement:\n(a) “Affiliate” means a person, company or entity controlling, controlled by, under common control, or working in concert, with a party;\nprovided that this definition does not include any person who became such without obtaining the consent to assignment required by\nSection 13 of this Agreement.\n(b) “Confidential Information” means all information or materials furnished by the Disclosing Party to the Receiving Party orally, or in\nwritten or electronic form, which is confidential, proprietary, or otherwise not generally available to the public. Notwithstanding the\nforegoing, the following will not constitute Confidential Information for purposes of this Agreement: (i) information which is or\nbecomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of\nthis Agreement; (ii) information which was known to the Receiving Party on a non-confidential basis prior to being furnished to the\nReceiving Party by the Disclosing Party; (iii) information which becomes available to the Receiving Party on a non-confidential basis\nfrom a source other than the Disclosing Party unless such source was known or could reasonably be determined to be under a\nconfidentiality obligation to the Disclosing Party, and (iv) information that is independently developed by Representatives of the\nReceiving Party who have not had access to the Confidential Information. “Confidential Information” shall also include this Agreement,\nthe fact that information contemplated herein has been made available to either party, and the fact that the parties are contemplating the\nTransaction.\nth\n(c) “Disclosing Party” means the party disclosing Confidential Information to the other party, including any Affiliate of such other party.\n(d) “Receiving Party” means the party receiving Confidential Information from the other party, including any Affiliate of such other party.\n(e) “Representatives” means a party (including an Affiliate of such party) and their respective directors, officers, employees, attorneys,\nadvisors, consultants, funding sources and Sidewinder Drilling and its officers and directors.\n2. Nondisclosure of Confidential Information. The Receiving Party may disclose Confidential Information only to the Receiving Party’s\nRepresentatives, but only if such Representatives need to know the Confidential Information in connection with the evaluation of the\nTransaction. The Receiving Party agrees that (a) such Representatives will be informed by the Receiving Party of the confidential nature of the\nConfidential Information, and (b) the Receiving Party will be responsible for any breach of this Agreement by itself or any of its\nRepresentatives. The Receiving Party shall not disclose the Confidential Information to any person other than as permitted hereby, and shall\nsafeguard the Confidential Information from unauthorized disclosure. The Receiving Party will require its Representatives to use at least the\nsame degree of care to protect the Disclosing Party’s Confidential Information as is used by the Receiving Party in protecting its own\nproprietary and Confidential Information.\n3. Restricted Use. The Confidential Information shall be used solely by the Receiving Party and its Representatives to evaluate and implement\nthe Transaction, and shall not otherwise be used in a manner detrimental to the Disclosing Party.\n4. Notice Preceding Compelled Disclosure. If the Receiving Party or its Representatives are requested or required by legal process to disclose any\nConfidential Information, the Receiving Party shall promptly notify the Disclosing Party of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or waive compliance with this Agreement. If, In the absence of a protective order or the receipt\nof a waiver hereunder, the Receiving Party or its Representatives are compelled to disclose the Confidential Information, the Receiving Party\nand its Representatives may disclose only such of the Confidential Information to the party compelling disclosure as is required by law and, in\nconnection with such compelled disclosure, the Receiving Party shall use commercially reasonable efforts to obtain from the party to whom\ndisclosure is made written assurance that confidential treatment will be accorded to such portion of the Confidential Information as is\ndisclosed.\n5. Return of Information. Upon the Disclosing Party’s request, the Receiving Party and its Representatives shall promptly deliver to the\nDisclosing Party or destroy (at the Disclosing Party’s election) all Confidential Information and all copies of any analyses, compilations,\nstudies or other documents prepared for use in connection with the Receiving Party’s consideration of a Transaction containing or including\nany\n2\nConfidential Information, in each case without retaining, in whole or in part, any copies, extracts or other reproductions (whatever the form or\nstorage medium) of such materials, except that the Receiving Party and its Representatives (a) may retain any attorney work product created in\nconnection with the Receiving Party’s consideration of the Transaction, (b) may retain one set of Confidential Information to the extent\nrequired to comply with law or governmental regulations and (c) will not be obligated to erase any Confidential Information that is contained\nin an archived computer system backup in accordance with the Receiving Party’s or its Representatives’ security and/or disaster recovery\nprocedures; provided, however, that any such Confidential Information retained under this Section shall continue to be subject to the terms of\nthis Agreement. Following such request, the Receiving Party will promptly provide the Disclosing Party with written confirmation from an\nauthorized officer who has supervised the Receiving Party’s compliance with this paragraph that confirms such compliance.\n6. No Waiver. No failure or delay in exercising any right, power, or privilege hereunder will operate as a waiver thereof nor will any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.\n7. Remedies. The parties acknowledges and agree that money damages would not be a sufficient remedy for any breach of this Agreement, and\nthe parties further acknowledge and agree that the non-breaching party will be entitled to seek specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be in\naddition to all other remedies available at law or in equity.\n8. Termination. This Agreement shall terminate, and all provisions hereof shall be of no further force or effect, one year from the date of this\nAgreement, unless either party terminates it earlier by providing a written termination notice to the other party; provided, however, that if this\nAgreement is so terminated by either party, this Agreement will continue to apply to any Confidential Information disclosed hereunder\n(including Confidential Information returned or destroyed) prior to the other party’s receipt of the termination notice until the end of the one-\nyear term. Each party further acknowledges and agrees that each party reserves the right, in its sole discretion and at any time, to reject any and\nall proposals made by the other party or any of its Representatives or any other party with regard to a Transaction and to terminate discussions\nand negotiations hereunder. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly notify the\nother party of that decision.\n9. Nonsolicitation. The Receiving Party agrees that for a period of one year neither it nor its Affiliates who receive confidential information shall\ndirectly or indirectly initiate the solicitation of, without the consent of the Disclosing Party, (a) any executive officer of the Disclosing Party or\nof any of its Affiliates or (b) any employee of the Disclosing Party or any of its Affiliates actively engaged in the review of the Transaction for\nemployment, advisory or consulting work; provided, however, neither party shall be prohibited from (x) employing or otherwise working with\nany such person who contacts\n3\nsuch party solely on his or her own initiative and without direct or indirect solicitation by such party, (y) conducting general solicitations for\nemployees or general contractors (which solicitations are not specifically targeted at the other party’s employees) through the use of media\nadvertisements, professional search firms or otherwise, or (z) employing employees who are paid on an hourly basis.\n10. Right to Disclose. The Disclosing Party represents and warrants to the Receiving Party that it has the right to disclose the Confidential\nInformation to the Receiving Party.\n11. No Obligation or Joint Venture. The parties hereto understand and agree that unless and until a definitive agreement has been executed and\ndelivered, no contract or agreement providing for the Transaction between the parties shall be deemed to exist between the parties, and neither\nparty will be under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this or any written or oral\nexpression thereof, except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this Agreement, the\nterm “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement or offer, unless\nspecifically so designated in writing and executed by both parties.\n12. No Warranty. BY EXECUTING THIS AGREEMENT, AND EXCEPT AS PROVIDED IN SECTION 10 ABOVE, THE DISCLOSING\nPARTY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO, OR IN\nANY WAY WITH RESPECT OR IN CONNECTION WITH ANY INFORMATION MADE AVAILABLE HEREUNDER. ACCORDINGLY,\nTHE RECEIVING PARTY WILL RELY SOLELY UPON ITS INDEPENDENT EXAMINATION AND ASSESSMENT OF THE\nCONFIDENTIAL INFORMATION IN EVALUATING THE TRANSACTION.\n13. Assignment. Neither party may assign this Agreement, or any rights hereunder, without the prior written consent of the other party, which\nconsent may be granted or withheld in the sole and absolute discretion of the non-assigning party.\n14. Miscellaneous. This Agreement inures to the benefit of, and is binding upon, both parties, and their successors and assigns, subject to the\nlimitations on assignment as set forth in Section 13 above. This Agreement constitutes the entire agreement between the parties with respect to\nthe subject matter hereof. The headings of the Sections of this Agreement are inserted for convenience only and do not constitute a part hereof\nor affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is found to be invalid, illegal or\nunenforceable, such provision shall be modified or severed to the extent necessary to reflect the fullest legal and enforceable expression of the\nintent of the parties. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF\nTHE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN SUCH STATE WITHOUT\nREGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each party hereto agrees that the prevailing party in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be entitled to recover its reasonable fees\nand expenses in connection therewith, including legal fees.\n4\n15. Counterparts. This Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature\npages delivered by electronic transmission in portable document format (pdf)), all of which taken together shall constitute one and the same\ninstrument. This Agreement to the extent signed and delivered by means of a facsimile machine or electronic pdf transmission, shall be treated\nin all manner and respects as an original instrument and shall be considered to have the same binding legal effect as if it were the original\nsigned version thereof delivered in person. At the request of any party hereto, the other party shall re-execute original forms thereof and deliver\nthem to such other party. No party hereto or to any such instrument shall raise the use of a facsimile machine or electronic pdf transmission to\ndeliver a signature or the fact that any signature or instrument was transmitted or communicated through the use of a facsimile machine or\nelectronic pdf transmission as a defense to the formation of a contract and each party forever waives any such defense, except to the extent\nsuch defense relates to lack of authenticity.\n[Signatures on following page]\n5\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.\nAVISTA CAPITAL HOLDINGS, LP\nBy: /s/ Jeff Gunst\nIts: Jeff Gunst\nAuthorized Signatory\nUNION DRILLING INC.\nBy: /s/ Christopher D. Strong\nChristopher D. Strong, President & CEO\n6	EX-99.(D)(6) 11 d420719dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is made and entered into this 13t day of July, 2012 by and between Avista Capital\nHoldings, LP (“Avista”) and Union Drilling, Inc., a Delaware corporation (“Union™).\nWHEREAS, Avista and Union are prepared to furnish each other with certain information in connection with a possible business transaction\nbetween Union and Avista’s Affiliate (defined below), Sidewinder Drilling, Inc. (the “Transaction”); and\nWHEREAS, in connection with the evaluation of the Transaction, the parties will be receiving, reviewing, and analyzing certain information\nwhich is confidential, proprietary or otherwise not generally available to the public with respect to the other party’s (including its Affiliates) business\noperations and services, the marketing or promotion of products and services, business policies and practices, technical, financial and strategic\ninformation and other matters.\nNOW, THEREFORE, for and in consideration of the premises and the agreements herein contained, the sufficiency of which is hereby\nacknowledged, the parties do hereby agree as follows:\n1. Definitions. As used in this Agreement:\n(a) “Affiliate” means a person, company or entity controlling, controlled by, under common control, or working in concert, with a party;\nprovided that this definition does not include any person who became such without obtaining the consent to assignment required by\nSection 13 of this Agreement.\n(b) “Confidential Information” means all information or materials furnished by the Disclosing Party to the Receiving Party orally, or in\nwritten or electronic form, which is confidential, proprietary, or otherwise not generally available to the public. Notwithstanding the\nforegoing, the following will not constitute Confidential Information for purposes of this Agreement: (i) information which is or\nbecomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of\nthis Agreement; (ii) information which was known to the Receiving Party on a non-confidential basis prior to being furnished to the\nReceiving Party by the Disclosing Party; (iii) information which becomes available to the Receiving Party on a non-confidential basis\nfrom a source other than the Disclosing Party unless such source was known or could reasonably be determined to be under a\nconfidentiality obligation to the Disclosing Party, and (iv) information that is independently developed by Representatives of the\nReceiving Party who have not had access to the Confidential Information. “Confidential Information” shall also include this Agreement,\nthe fact that information contemplated herein has been made available to either party, and the fact that the parties are contemplating the\nTransaction.\n(c) “Disclosing Party” means the party disclosing Confidential Information to the other party, including any Affiliate of such other party.\n(d) “Receiving Party” means the party receiving Confidential Information from the other party, including any Affiliate of such other party.\n(e) “Representatives” means a party (including an Affiliate of such party) and their respective directors, officers, employees, attorneys,\nadvisors, consultants, funding sources and Sidewinder Drilling and its officers and directors.\nNondisclosure of Confidential Information. The Receiving Party may disclose Confidential Information only to the Receiving Party’s\nRepresentatives, but only if such Representatives need to know the Confidential Information in connection with the evaluation of the\nTransaction. The Receiving Party agrees that (a) such Representatives will be informed by the Receiving Party of the confidential nature of the\nConfidential Information, and (b) the Receiving Party will be responsible for any breach of this Agreement by itself or any of its\nRepresentatives. The Receiving Party shall not disclose the Confidential Information to any person other than as permitted hereby, and shall\nsafeguard the Confidential Information from unauthorized disclosure. The Receiving Party will require its Representatives to use at least the\nsame degree of care to protect the Disclosing Party’s Confidential Information as is used by the Receiving Party in protecting its own\nproprietary and Confidential Information.\nRestricted Use. The Confidential Information shall be used solely by the Receiving Party and its Representatives to evaluate and implement\nthe Transaction, and shall not otherwise be used in a manner detrimental to the Disclosing Party.\nNotice Preceding Compelled Disclosure. If the Receiving Party or its Representatives are requested or required by legal process to disclose any\nConfidential Information, the Receiving Party shall promptly notify the Disclosing Party of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or waive compliance with this Agreement. If, In the absence of a protective order or the receipt\nof a waiver hereunder, the Receiving Party or its Representatives are compelled to disclose the Confidential Information, the Receiving Party\nand its Representatives may disclose only such of the Confidential Information to the party compelling disclosure as is required by law and, in\nconnection with such compelled disclosure, the Receiving Party shall use commercially reasonable efforts to obtain from the party to whom\ndisclosure is made written assurance that confidential treatment will be accorded to such portion of the Confidential Information as is\ndisclosed.\n \nReturn of Information. Upon the Disclosing Party’s request, the Receiving Party and its Representatives shall promptly deliver to the\nDisclosing Party or destroy (at the Disclosing Party’s election) all Confidential Information and all copies of any analyses, compilations,\nstudies or other documents prepared for use in connection with the Receiving Party’s consideration of a Transaction containing or including\nany\nConfidential Information, in each case without retaining, in whole or in part, any copies, extracts or other reproductions (whatever the form or\nstorage medium) of such materials, except that the Receiving Party and its Representatives (a) may retain any attorney work product created in\nconnection with the Receiving Party’s consideration of the Transaction, (b) may retain one set of Confidential Information to the extent\nrequired to comply with law or governmental regulations and (c) will not be obligated to erase any Confidential Information that is contained\nin an archived computer system backup in accordance with the Receiving Party’s or its Representatives’ security and/or disaster recovery\nprocedures; provided, however, that any such Confidential Information retained under this Section shall continue to be subject to the terms of\nthis Agreement. Following such request, the Receiving Party will promptly provide the Disclosing Party with written confirmation from an\nauthorized officer who has supervised the Receiving Party’s compliance with this paragraph that confirms such compliance.\nNo Waiver. No failure or delay in exercising any right, power, or privilege hereunder will operate as a waiver thereof nor will any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.\nRemedies. The parties acknowledges and agree that money damages would not be a sufficient remedy for any breach of this Agreement, and\nthe parties further acknowledge and agree that the non-breaching party will be entitled to seek specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be in\naddition to all other remedies available at law or in equity.\nTermination. This Agreement shall terminate, and all provisions hereof shall be of no further force or effect, one year from the date of this\nAgreement, unless either party terminates it earlier by providing a written termination notice to the other party; provided, however, that if this\nAgreement is so terminated by either party, this Agreement will continue to apply to any Confidential Information disclosed hereunder\n(including Confidential Information returned or destroyed) prior to the other party’s receipt of the termination notice until the end of the one-\nyear term. Each party further acknowledges and agrees that each party reserves the right, in its sole discretion and at any time, to reject any and\nall proposals made by the other party or any of its Representatives or any other party with regard to a Transaction and to terminate discussions\nand negotiations hereunder. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly notify the\nother party of that decision.\nNonsolicitation. The Receiving Party agrees that for a period of one year neither it nor its Affiliates who receive confidential information shall\ndirectly or indirectly initiate the solicitation of, without the consent of the Disclosing Party, (a) any executive officer of the Disclosing Party or\nof any of its Affiliates or (b) any employee of the Disclosing Party or any of its Affiliates actively engaged in the review of the Transaction for\nemployment, advisory or consulting work; provided, however, neither party shall be prohibited from (x) employing or otherwise working with\nany such person who contacts\n10. 11. 12. 13. 14. such party solely on his or her own initiative and without direct or indirect solicitation by such party, (y) conducting general solicitations for\nemployees or general contractors (which solicitations are not specifically targeted at the other party’s employees) through the use of media\nadvertisements, professional search firms or otherwise, or (z) employing employees who are paid on an hourly basis.\nRight to Disclose. The Disclosing Party represents and warrants to the Receiving Party that it has the right to disclose the Confidential\nInformation to the Receiving Party.\nNo Obligation or Joint Venture. The parties hereto understand and agree that unless and until a definitive agreement has been executed and\ndelivered, no contract or agreement providing for the Transaction between the parties shall be deemed to exist between the parties, and neither\nparty will be under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this or any written or oral\nexpression thereof, except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this Agreement, the\nterm “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement or offer, unless\nspecifically so designated in writing and executed by both parties.\nNo Warranty. BY EXECUTING THIS AGREEMENT, AND EXCEPT AS PROVIDED IN SECTION 10 ABOVE, THE DISCLOSING\nPARTY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO, OR IN\nANY WAY WITH RESPECT OR IN CONNECTION WITH ANY INFORMATION MADE AVAILABLE HEREUNDER. ACCORDINGLY,\nTHE RECEIVING PARTY WILL RELY SOLELY UPON ITS INDEPENDENT EXAMINATION AND ASSESSMENT OF THE\nCONFIDENTIAL INFORMATION IN EVALUATING THE TRANSACTION.\nAssignment. Neither party may assign this Agreement, or any rights hereunder, without the prior written consent of the other party, which\nconsent may be granted or withheld in the sole and absolute discretion of the non-assigning party.\nMiscellaneous. This Agreement inures to the benefit of, and is binding upon, both parties, and their successors and assigns, subject to the\nlimitations on assignment as set forth in Section 13 above. This Agreement constitutes the entire agreement between the parties with respect to\nthe subject matter hereof. The headings of the Sections of this Agreement are inserted for convenience only and do not constitute a part hereof\nor affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is found to be invalid, illegal or\nunenforceable, such provision shall be modified or severed to the extent necessary to reflect the fullest legal and enforceable expression of the\nintent of the parties. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF\nTHE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN SUCH STATE WITHOUT\nREGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each party hereto agrees that the prevailing party in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be entitled to recover its reasonable fees\nand expenses in connection therewith, including legal fees.\n15. Counterparts. This Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature\npages delivered by electronic transmission in portable document format (pdf)), all of which taken together shall constitute one and the same\ninstrument. This Agreement to the extent signed and delivered by means of a facsimile machine or electronic pdf transmission, shall be treated\nin all manner and respects as an original instrument and shall be considered to have the same binding legal effect as if it were the original\nsigned version thereof delivered in person. At the request of any party hereto, the other party shall re-execute original forms thereof and deliver\nthem to such other party. No party hereto or to any such instrument shall raise the use of a facsimile machine or electronic pdf transmission to\ndeliver a signature or the fact that any signature or instrument was transmitted or communicated through the use of a facsimile machine or\nelectronic pdf transmission as a defense to the formation of a contract and each party forever waives any such defense, except to the extent\nsuch defense relates to lack of authenticity.\n[Signatures on following page]\n5\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.\nAVISTA CAPITAL HOLDINGS, LP\nBy:  /s/ Jeff Gunst\nIts: Jeff Gunst\nAuthorized Signatory\nUNION DRILLING INC.\nBy:  /s/ Christopher D. Strong\nChristopher D. Strong, President & CEO	EX-99.(D)(6) 11 420719dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is made and entered into this 13th day of July, 2012 by and between Avista Capital\nHoldings, LP ("Avista") and Union Drilling, Inc., a Delaware corporation ("Union").\nWHEREAS, Avista and Union are prepared to furnish each other with certain information in connection with a possible business transaction\nbetween Union and Avista's Affiliate (defined below), Sidewinder Drilling, Inc. (the "Transaction"); and\nWHEREAS, in connection with the evaluation of the Transaction, the parties will be receiving, reviewing, and analyzing certain information\nwhich is confidential, proprietary or otherwise not generally available to the public with respect to the other party's (including its Affiliates) business\noperations and services, the marketing or promotion of products and services, business policies and practices, technical, financial and strategic\ninformation and other matters.\nNOW, THEREFORE, for and in consideration of the premises and the agreements herein contained, the sufficiency of which is hereby\nacknowledged, the parties do hereby agree as follows:\n1.\nDefinitions. As used in this Agreement:\n(a)\n"Affiliate" means a person, company or entity controlling, controlled by, under common control, or working in concert, with a party;\nprovided that this definition does not include any person who became such without obtaining the consent to assignment required by\nSection 13 of this Agreement.\n(b) "Confidential Information" means all information or materials furnished by the Disclosing Party to the Receiving Party orally, or in\nwritten or electronic form, which is confidential, proprietary, or otherwise not generally available to the public. Notwithstanding the\nforegoing, the following will not constitute Confidential Information for purposes of this Agreement: (i) information which is or\nbecomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of\nthis Agreement; (ii) information which was known to the Receiving Party on a non-confidential basis prior to being furnished to the\nReceiving Party by the Disclosing Party; (iii) information which becomes available to the Receiving Party on a non-confidential basis\nfrom a source other than the Disclosing Party unless such source was known or could reasonably be determined to be under a\nconfidentiality obligation to the Disclosing Party, and (iv) information that is independently developed by Representatives of the\nReceiving Party who have not had access to the Confidential Information. "Confidential Information" shall also include this Agreement,\nthe fact that information contemplated herein has been made available to either party, and the fact that the parties are contemplating the\nTransaction.\n(c)\n"Disclosing Party" means the party disclosing Confidential Information to the other party, including any Affiliate of such other party.\n(d)\n"Receiving Party" means the party receiving Confidential Information from the other party, including any Affiliate of such other party.\n(e)\n"Representatives" means a party (including an Affiliate of such party) and their respective directors, officers, employees, attorneys,\nadvisors, consultants, funding sources and Sidewinder Drilling and its officers and directors.\n2.\nNondisclosure of Confidential Information The Receiving Party may disclose Confidential Information only to the Receiving Party's\nRepresentatives, but only if such Representatives need to know the Confidential Information in connection with the evaluation of the\nTransaction. The Receiving Party agrees that (a) such Representatives will be informed by the Receiving Party of the confidentia nature of the\nConfidential Information, and (b) the Receiving Party will be responsible for any breach of this Agreement by itself or any of its\nRepresentatives. The Receiving Party shall not disclose the Confidential Information to any person other than as permitted hereby, and shall\nsafeguard the Confidential Information from unauthorized disclosure. The Receiving Party will require its Representatives to use at least the\nsame degree of care to protect the Disclosing Party's Confidential Information as is used by the Receiving Party in protecting its own\nproprietary and Confidential Information.\n3.\nRestricted Use The Confidential Information shall be used solely by the Receiving Party and its Representatives to evaluate and implement\nthe Transaction, and shall not otherwise be used in a manner detrimental to the Disclosing Party.\n4.\nNotice Preceding Compelled Disclosure. If the Receiving Party or its Representatives are requested or required by legal process to disclose any\nConfidential Information, the Receiving Party shall promptly notify the Disclosing Party of such request or requirement SO that the Disclosing\nParty may seek an appropriate protective order or waive compliance with this Agreement. If, In the absence of a protective order or the receipt\nof\na\nwaiver hereunder, the Receiving Party or its Representatives are compelled to disclose the Confidential Information, the Receiving Party\nand its Representatives may disclose only such of the Confidential Information to the party compelling disclosure as is required by law and, in\nconnection with such compelled disclosure, the Receiving Party shall use commercially reasonable efforts to obtain from the party to whom\ndisclosure is made written assurance that confidential treatment will be accorded to such portion of the Confidential Information as is\ndisclosed.\n5.\nReturn of Information. Upon the Disclosing Party's request, the Receiving Party and its Representatives shall promptly deliver to the\nDisclosing Party or destroy (at the Disclosing Party's election) all Confidential Information and all copies of any analyses, compilations,\nstudies or other documents prepared for use in connection with the Receiving Party's consideration of a Transaction containing or including\nany\n2\nConfidential Information, in each case without retaining, in whole or in part, any copies, extracts or other reproductions (whatever the form or\nstorage medium) of such materials, except that the Receiving Party and its Representatives (a) may retain any attorney work product created in\nconnection with the Receiving Party's consideration of the Transaction, (b) may retain one set of Confidential Information to the extent\nrequired to comply with law or governmental regulations and (c) will not be obligated to erase any Confidential Information that is contained\nin an archived computer system backup in accordance with the Receiving Party's or its Representatives' security and/or disaster recovery\nprocedures; provided, however, that any such Confidential Information retained under this Section shall continue to be subject to the terms of\nthis Agreement. Following such request, the Receiving Party will promptly provide the Disclosing Party with written confirmation from an\nauthorized officer who has supervised the Receiving Party's compliance with this paragraph that confirms such compliance.\n6.\nNo Waiver. No failure or delay in exercising any right, power, or privilege hereunder will operate as a waiver thereof nor will any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.\n7.\nRemedies. The parties acknowledges and agree that money damages would not be a sufficient remedy for any breach of this Agreement, and\nthe parties further acknowledge and agree that the non-breaching party will be entitled to seek specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be in\naddition to all other remedies available at law or in equity.\n8.\nTermination. This Agreement shall terminate, and all provisions hereof shall be of no further force or effect, one year from the date of this\nAgreement, unless either party terminates it earlier by providing a written termination notice to the other party; provided, however, that if this\nAgreement is so terminated by either party, this Agreement will continue to apply to any Confidential Information disclosed hereunder\n(including Confidential Information returned or destroyed) prior to the other party's receipt of the termination notice until the end of the one-\nyear term. Each party further acknowledges and agrees that each party reserves the right, in its sole discretion and at any time, to reject any and\nall proposals made by the other party or any of its Representatives or any other party with regard to a Transaction and to terminate discussions\nand negotiations hereunder. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly notify the\nother party of that decision.\n9.\nNonsolicitation. The Receiving Party agrees that for a period of one year neither it nor its Affiliates who receive confidential information shall\ndirectly or indirectly initiate the solicitation of, without the consent of the Disclosing Party, (a) any executive officer of the Disclosing Party\nor\nof any of its Affiliates or (b) any employee of the Disclosing Party or any of its Affiliates actively engaged in the review of the Transaction for\nemployment, advisory or consulting work; provided, however, neither party shall be prohibited from (x) employing or otherwise working with\nany such person who contacts\n3\nsuch party solely on his or her own initiative and without direct or indirect solicitation by such party, (y) conducting general solicitations for\nemployees or general contractors (which solicitations are not specifically targeted at the other party's employees) through the use of media\nadvertisements, professional search firms or otherwise, or (z) employing employees who are paid on an hourly basis.\n10. Right to Disclose. The Disclosing Party represents and warrants to the Receiving Party that it has the right to disclose the Confidential\nInformation to the Receiving Party.\n11.\nNo Obligation or Joint Venture. The parties hereto understand and agree that unless and until a definitive agreement has been executed and\ndelivered, no contract or agreement providing for the Transaction between the parties shall be deemed to exist between the parties, and neither\nparty will be under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this or any written or oral\nexpression thereof, except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this Agreement, the\nterm "definitive agreement" does not include an executed letter of intent or any other preliminary written agreement or offer, unless\nspecifically So designated in writing and executed by both parties.\n12. No Warranty. BY EXECUTING THIS AGREEMENT, AND EXCEPT AS PROVIDED IN SECTION 10 ABOVE, THE DISCLOSING\nPARTY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO, OR IN\nANY WAY WITH RESPECT OR IN CONNECTION WITH ANY INFORMATION MADE AVAILABLE HEREUNDER. ACCORDINGLY,\nTHE RECEIVING PARTY WILL RELY SOLELY UPON ITS INDEPENDENT EXAMINATION AND ASSESSMENT OF THE\nCONFIDENTIAL INFORMATION IN EVALUATING THE TRANSACTION.\n13.\nAssignment. Neither party may assign this Agreement, or any rights hereunder, without the prior written consent of the other party, which\nconsent may be granted or withheld in the sole and absolute discretion of the non-assigning party.\n14.\nMiscellaneous. This Agreement inures to the benefit of, and is binding upon, both parties, and their successors and assigns, subject to the\nlimitations on assignment as set forth in Section 13 above. This Agreement constitutes the entire agreement between the parties with respect to\nthe subject matter hereof. The headings of the Sections of this Agreement are inserted for convenience only and do not constitute a part\nhereof\nor affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is found to be invalid, illegal or\nunenforceable, such provision shall be modified or severed to the extent necessary to reflect the fullest legal and enforceable expression of the\nintent of the parties. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF\nTHE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN SUCH STATE WITHOUT\nREGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each party hereto agrees that the prevailing party in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be entitled to recover its reasonable fees\nand expenses in connection therewith, including legal fees.\n4\n15. Counterparts. This Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature\npages delivered by electronic transmission in portable document format (pdf)), all of which taken together shall constitute one and the same\ninstrument. This Agreement to the extent signed and delivered by means of a facsimile machine or electronic pdf transmission, shall be treated\nin all manner and respects as an original instrument and shall be considered to have the same binding legal effect as if it were the original\nsigned version thereof delivered in person. At the request of any party hereto, the other party shall re-execute original forms thereof and deliver\nthem to such other party. No party hereto or to any such instrument shall raise the use of a facsimile machine or electronic pdf transmission to\ndeliver a signature or the fact that any signature or instrument was transmitted or communicated through the use of a facsimile machine or\nelectronic pdf transmission as a defense to the formation of a contract and each party forever waives any such defense, except to the extent\nsuch defense relates to lack of authenticity.\n[Signatures on following page]\n5\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.\nAVISTA CAPITAL HOLDINGS, LP\nBy:\n/s/ Jeff Gunst\nIts: Jeff Gunst\nAuthorized Signatory\nUNION DRILLING INC.\nBy:\n/s/ Christopher D. Strong\nChristopher D. Strong, President & CEO\n6	EX-99.(D)(6) 11 d420719dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is made and entered into this 13 day of July, 2012 by and between Avista Capital\nHoldings, LP (“Avista”) and Union Drilling, Inc., a Delaware corporation (“Union”).\nWHEREAS, Avista and Union are prepared to furnish each other with certain information in connection with a possible business transaction\nbetween Union and Avista’s Affiliate (defined below), Sidewinder Drilling, Inc. (the “Transaction”); and\nWHEREAS, in connection with the evaluation of the Transaction, the parties will be receiving, reviewing, and analyzing certain information\nwhich is confidential, proprietary or otherwise not generally available to the public with respect to the other party’s (including its Affiliates) business\noperations and services, the marketing or promotion of products and services, business policies and practices, technical, financial and strategic\ninformation and other matters.\nNOW, THEREFORE, for and in consideration of the premises and the agreements herein contained, the sufficiency of which is hereby\nacknowledged, the parties do hereby agree as follows:\n1. Definitions. As used in this Agreement:\n(a) “Affiliate” means a person, company or entity controlling, controlled by, under common control, or working in concert, with a party;\nprovided that this definition does not include any person who became such without obtaining the consent to assignment required by\nSection 13 of this Agreement.\n(b) “Confidential Information” means all information or materials furnished by the Disclosing Party to the Receiving Party orally, or in\nwritten or electronic form, which is confidential, proprietary, or otherwise not generally available to the public. Notwithstanding the\nforegoing, the following will not constitute Confidential Information for purposes of this Agreement: (i) information which is or\nbecomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of\nthis Agreement; (ii) information which was known to the Receiving Party on a non-confidential basis prior to being furnished to the\nReceiving Party by the Disclosing Party; (iii) information which becomes available to the Receiving Party on a non-confidential basis\nfrom a source other than the Disclosing Party unless such source was known or could reasonably be determined to be under a\nconfidentiality obligation to the Disclosing Party, and (iv) information that is independently developed by Representatives of the\nReceiving Party who have not had access to the Confidential Information. “Confidential Information” shall also include this Agreement,\nthe fact that information contemplated herein has been made available to either party, and the fact that the parties are contemplating the\nTransaction.\nth\n(c) “Disclosing Party” means the party disclosing Confidential Information to the other party, including any Affiliate of such other party.\n(d) “Receiving Party” means the party receiving Confidential Information from the other party, including any Affiliate of such other party.\n(e) “Representatives” means a party (including an Affiliate of such party) and their respective directors, officers, employees, attorneys,\nadvisors, consultants, funding sources and Sidewinder Drilling and its officers and directors.\n2. Nondisclosure of Confidential Information. The Receiving Party may disclose Confidential Information only to the Receiving Party’s\nRepresentatives, but only if such Representatives need to know the Confidential Information in connection with the evaluation of the\nTransaction. The Receiving Party agrees that (a) such Representatives will be informed by the Receiving Party of the confidential nature of the\nConfidential Information, and (b) the Receiving Party will be responsible for any breach of this Agreement by itself or any of its\nRepresentatives. The Receiving Party shall not disclose the Confidential Information to any person other than as permitted hereby, and shall\nsafeguard the Confidential Information from unauthorized disclosure. The Receiving Party will require its Representatives to use at least the\nsame degree of care to protect the Disclosing Party’s Confidential Information as is used by the Receiving Party in protecting its own\nproprietary and Confidential Information.\n3. Restricted Use. The Confidential Information shall be used solely by the Receiving Party and its Representatives to evaluate and implement\nthe Transaction, and shall not otherwise be used in a manner detrimental to the Disclosing Party.\n4. Notice Preceding Compelled Disclosure. If the Receiving Party or its Representatives are requested or required by legal process to disclose any\nConfidential Information, the Receiving Party shall promptly notify the Disclosing Party of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or waive compliance with this Agreement. If, In the absence of a protective order or the receipt\nof a waiver hereunder, the Receiving Party or its Representatives are compelled to disclose the Confidential Information, the Receiving Party\nand its Representatives may disclose only such of the Confidential Information to the party compelling disclosure as is required by law and, in\nconnection with such compelled disclosure, the Receiving Party shall use commercially reasonable efforts to obtain from the party to whom\ndisclosure is made written assurance that confidential treatment will be accorded to such portion of the Confidential Information as is\ndisclosed.\n5. Return of Information. Upon the Disclosing Party’s request, the Receiving Party and its Representatives shall promptly deliver to the\nDisclosing Party or destroy (at the Disclosing Party’s election) all Confidential Information and all copies of any analyses, compilations,\nstudies or other documents prepared for use in connection with the Receiving Party’s consideration of a Transaction containing or including\nany\n2\nConfidential Information, in each case without retaining, in whole or in part, any copies, extracts or other reproductions (whatever the form or\nstorage medium) of such materials, except that the Receiving Party and its Representatives (a) may retain any attorney work product created in\nconnection with the Receiving Party’s consideration of the Transaction, (b) may retain one set of Confidential Information to the extent\nrequired to comply with law or governmental regulations and (c) will not be obligated to erase any Confidential Information that is contained\nin an archived computer system backup in accordance with the Receiving Party’s or its Representatives’ security and/or disaster recovery\nprocedures; provided, however, that any such Confidential Information retained under this Section shall continue to be subject to the terms of\nthis Agreement. Following such request, the Receiving Party will promptly provide the Disclosing Party with written confirmation from an\nauthorized officer who has supervised the Receiving Party’s compliance with this paragraph that confirms such compliance.\n6. No Waiver. No failure or delay in exercising any right, power, or privilege hereunder will operate as a waiver thereof nor will any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.\n7. Remedies. The parties acknowledges and agree that money damages would not be a sufficient remedy for any breach of this Agreement, and\nthe parties further acknowledge and agree that the non-breaching party will be entitled to seek specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be in\naddition to all other remedies available at law or in equity.\n8. Termination. This Agreement shall terminate, and all provisions hereof shall be of no further force or effect, one year from the date of this\nAgreement, unless either party terminates it earlier by providing a written termination notice to the other party; provided, however, that if this\nAgreement is so terminated by either party, this Agreement will continue to apply to any Confidential Information disclosed hereunder\n(including Confidential Information returned or destroyed) prior to the other party’s receipt of the termination notice until the end of the one-\nyear term. Each party further acknowledges and agrees that each party reserves the right, in its sole discretion and at any time, to reject any and\nall proposals made by the other party or any of its Representatives or any other party with regard to a Transaction and to terminate discussions\nand negotiations hereunder. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly notify the\nother party of that decision.\n9. Nonsolicitation. The Receiving Party agrees that for a period of one year neither it nor its Affiliates who receive confidential information shall\ndirectly or indirectly initiate the solicitation of, without the consent of the Disclosing Party, (a) any executive officer of the Disclosing Party or\nof any of its Affiliates or (b) any employee of the Disclosing Party or any of its Affiliates actively engaged in the review of the Transaction for\nemployment, advisory or consulting work; provided, however, neither party shall be prohibited from (x) employing or otherwise working with\nany such person who contacts\n3\nsuch party solely on his or her own initiative and without direct or indirect solicitation by such party, (y) conducting general solicitations for\nemployees or general contractors (which solicitations are not specifically targeted at the other party’s employees) through the use of media\nadvertisements, professional search firms or otherwise, or (z) employing employees who are paid on an hourly basis.\n10. Right to Disclose. The Disclosing Party represents and warrants to the Receiving Party that it has the right to disclose the Confidential\nInformation to the Receiving Party.\n11. No Obligation or Joint Venture. The parties hereto understand and agree that unless and until a definitive agreement has been executed and\ndelivered, no contract or agreement providing for the Transaction between the parties shall be deemed to exist between the parties, and neither\nparty will be under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this or any written or oral\nexpression thereof, except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this Agreement, the\nterm “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement or offer, unless\nspecifically so designated in writing and executed by both parties.\n12. No Warranty. BY EXECUTING THIS AGREEMENT, AND EXCEPT AS PROVIDED IN SECTION 10 ABOVE, THE DISCLOSING\nPARTY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO, OR IN\nANY WAY WITH RESPECT OR IN CONNECTION WITH ANY INFORMATION MADE AVAILABLE HEREUNDER. ACCORDINGLY,\nTHE RECEIVING PARTY WILL RELY SOLELY UPON ITS INDEPENDENT EXAMINATION AND ASSESSMENT OF THE\nCONFIDENTIAL INFORMATION IN EVALUATING THE TRANSACTION.\n13. Assignment. Neither party may assign this Agreement, or any rights hereunder, without the prior written consent of the other party, which\nconsent may be granted or withheld in the sole and absolute discretion of the non-assigning party.\n14. Miscellaneous. This Agreement inures to the benefit of, and is binding upon, both parties, and their successors and assigns, subject to the\nlimitations on assignment as set forth in Section 13 above. This Agreement constitutes the entire agreement between the parties with respect to\nthe subject matter hereof. The headings of the Sections of this Agreement are inserted for convenience only and do not constitute a part hereof\nor affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is found to be invalid, illegal or\nunenforceable, such provision shall be modified or severed to the extent necessary to reflect the fullest legal and enforceable expression of the\nintent of the parties. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF\nTHE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN SUCH STATE WITHOUT\nREGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each party hereto agrees that the prevailing party in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be entitled to recover its reasonable fees\nand expenses in connection therewith, including legal fees.\n4\n15. Counterparts. This Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature\npages delivered by electronic transmission in portable document format (pdf)), all of which taken together shall constitute one and the same\ninstrument. This Agreement to the extent signed and delivered by means of a facsimile machine or electronic pdf transmission, shall be treated\nin all manner and respects as an original instrument and shall be considered to have the same binding legal effect as if it were the original\nsigned version thereof delivered in person. At the request of any party hereto, the other party shall re-execute original forms thereof and deliver\nthem to such other party. No party hereto or to any such instrument shall raise the use of a facsimile machine or electronic pdf transmission to\ndeliver a signature or the fact that any signature or instrument was transmitted or communicated through the use of a facsimile machine or\nelectronic pdf transmission as a defense to the formation of a contract and each party forever waives any such defense, except to the extent\nsuch defense relates to lack of authenticity.\n[Signatures on following page]\n5\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.\nAVISTA CAPITAL HOLDINGS, LP\nBy: /s/ Jeff Gunst\nIts: Jeff Gunst\nAuthorized Signatory\nUNION DRILLING INC.\nBy: /s/ Christopher D. Strong\nChristopher D. Strong, President & CEO\n6
ec0c342ef16c55d2f88469e809f3943f.pdf	effective_date jurisdiction party term	EX-10.6 11 ex106.htm EXHIBIT 10.6 EMPLOYMENT CONTRACT BETWEEN SUN ENERGY SOLAR, INC.\n(NOW KNOWN AS SUNOVIA SOLAR, INC.) AND BOB FUGERER, DATED JULY 10, 2006, AND ADDENDUM\nExhibit 10.6\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT ("Agreement") is entered into this 2nd day of February, 2006 by and between Sun Energy Solar,\nInc., a Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America\n("Company"), and Robert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL\n33558("Recipient").\nRECITALS\nA.\nCompany and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually\nadvantageous business relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the\n“LimitedPurpose”).\nB.\nTo facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter\ninto this Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby\nacknowledged, the parties agree as follows:\n1.\nDefinitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following\nmeanings:\n(a)\n"Confidential Information" mean any information, whether written, oral, magnetic, photographic, optical, or other form,\ntangible or intangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants,\nrepresentatives or agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being\nconfidential, or which under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any\ninformation pertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and\noperations of Company (including such information visually available to Recipient at Company’s premises or Company presentations), and\nincluding without limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b)\n"Related Party" or "Related Parties" shall mean the directors, officers, employees, legal, tax and other professional\nadvisors or consultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2.\nNon-Disclosure and Restricted Use of Confidential Information.\n(a)\nRecipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior\nwritten consent of Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the\nConfidential Information solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other\nentity or person. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including\nwithout limitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or\notherwise reproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the\nexpress written consent of the Company.\n1\n(b)\nRecipient may disclose the Confidential Information to Related Parties on a "need to know" basis only. Recipient\nshall inform all Related Parties who have access to the Confidential Information that such Confidential Information is confidential and\nproprietary to Company and shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein\nprior to disclosure of any Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties\nand shall be responsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c)\nThe obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i)\nis or becomes generally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the\ntime of disclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence; (iii)\nRecipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that such\nthird party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections (i)\nthrough (v).\n(d)\nRecipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential\nInformation, (ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third\nparties as may be deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3.\nTerm of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information\nand may be terminated, without cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided\nhowever, that all rights and obligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding\nanything herein to the contrary, the nondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue\nand bind Recipient for a period of five (5) years after the date of the last disclosure of Confidential Information hereunder, except that the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information that constitutes a trade secret shall continue in\neffect for so long as the Confidential Information remains a trade secret under applicable law. Any termination or expiration of this Agreement\nshall be without prejudice to the rights of Company against Recipient in respect of any claim or breach of any of the provisions of this\nAgreement.\n4.\nReturn of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall\ncause its Related Parties to return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes\nrelating to, the Confidential Information, including without limitation, any memoranda, photocopies, computer files and libraries, computer-\ngenerated data or other similar repositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was\nprovided, or (ii) receipt of a written notice from Company requesting return or destruction of the Confidential Information, and upon request,\nshall provide to Company written certification signed by an officer of Recipient that it has complied with the foregoing.\n2\n5.\nOwnership.\n(a)\nAll Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to\nRecipient, Company does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret\ninformation except as required to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any\nsuch patents, copyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from\nany form of the Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the\nConfidential Information any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect\nits intellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of\nConfidential Information delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks,\ntrade dress, logos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by\nCompany, Recipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently\nexisting or hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall do\nall other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be effective\nregardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly, Company’s right,\ntitle and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the attempt to register or\nrecord the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any termination or expiration\nof this Agreement.\n(b)\nRecipient may from time to time provide suggestions, comments or other feedback ("Feedback") to Company with\nrespect to the Confidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give\nFeedback that is subject to license terms that seek to require any Company product, technology, service or documentation incorporating or\nderived from such Feedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby\nacknowledges and agrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality\nand restricted use provided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the\nexclusive right to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without\nobligation or restriction of any kind on account of intellectual property rights or otherwise.\n6.\nAccuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient\nshall be solely in Company 's discretion. This Agreement shall not require Company to disclose any information or to require the consummation\nof any transaction in connection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall\nnot be deemed to have made any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential\nInformation, except to the extent that such representation or warranty may be expressly set forth in a definitive written agreement concerning any\nsubsequent business relationship.\n7.\nIndependent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as\ncreating a partnership, joint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its\nown account, and neither is authorized to make any commitment or representation, express or implied, on the other’s behalf.\n3\n8.\nRemedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential\nInformation were to be disclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this\nAgreement, and further agrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of\nthe terms of this Agreement without the necessity of posting bond or other security, in addition to all other rights and remedies available to\nCompany at law or in equity. Any trade secrets of the Company will be entitled to all of the protections and benefits under the applicable\nUniform Trade Secrets Act and any other applicable law. If any information that Company deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information nevertheless will be considered Confidential\nInformation for purposes of this Agreement. Recipient hereby waives any requirement that the Company submit proof of the economic value of\nany trade secret.\n9.\nIndemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable\nattorneys' fees), expenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to\nfully comply with its covenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10.\nEntire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the\nsubject matter of this Agreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties\nregarding the subject matter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under\ntrade secret, copyright, patent, trademark or other laws that may apply to the subject matter of this Agreement both during and after the term of\nthis Agreement.\n11.\nAmendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or\nwaiver is in writing and is signed by each of the parties hereto.\n12.\nAssignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law,\nthis Agreement, or any rights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement\nshall be binding upon, and shall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13.\nAttorneys' Fees. If any party shall commence any action or proceeding against the other in order to enforce the\nprovisions of this Agreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing\nparty therein shall be entitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the\nparty who has breached this Agreement, as the case may be, including reasonable attorneys' fees.\n14.\nApplicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of\nFlorida, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State\nof Florida. Any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in\nthe United States District Court for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of\nFlorida. Each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party\nhereby submits to the in personam jurisdiction and venue of such courts.\n15.\nSeverability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or\nunenforceable, the parties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’\nintentions and the remaining provisions shall remain in full force and effect.\n4\n[SIGNATURE PAGE FOLLOWS]\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc..\nBy: /s/Carl L. Smith\nTitle:\nCEO\nDate:\nJuly 10, 2006\nRecipient\nSignature: /s/ Robert\nFugerer\nPrinted:\nRobert Fugerer\nDate:\nFebruary 18, 2006	EX-10.6 11 ex106.htm EXHIBIT 10.6 EMPLOYMENT CONTRACT BETWEEN SUN ENERGY SOLAR, INC.\n(NOW KNOWN AS SUNOVIA SOLAR, INC.) AND BOB FUGERER, DATED JULY 10, 2006, AND ADDENDUM\nExhibit 10.6\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT ("Agreement") is entered into this 2nd day of February, 2006 by and between Sun Energy Solar,\nInc., a Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America\n("Company"), and Robert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL\n33558("Recipient").\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually\nadvantageous business relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the\n“LimitedPurpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter\ninto this Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby\nacknowledged, the parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following\nmeanings:\n(a) "Confidential Information" mean any information, whether written, oral, magnetic, photographic, optical, or other form,\ntangible or intangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants,\nrepresentatives or agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being\nconfidential, or which under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any\ninformation pertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and\noperations of Company (including such information visually available to Recipient at Company’s premises or Company presentations), and\nincluding without limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) "Related Party" or "Related Parties" shall mean the directors, officers, employees, legal, tax and other professional\nadvisors or consultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior\nwritten consent of Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the\nConfidential Information solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other\nentity or person. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including\nwithout limitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or\notherwise reproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the\nexpress written consent of the Company.\n(b) Recipient may disclose the Confidential Information to Related Parties on a "need to know" basis only. Recipient\nshall inform all Related Parties who have access to the Confidential Information that such Confidential Information is confidential and\nproprietary to Company and shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein\nprior to disclosure of any Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties\nand shall be responsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(0 The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i)\nis or becomes generally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the\ntime of disclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence; (iii)\nRecipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that such\nthird party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections (i)\nthrough (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential\nInformation, (ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third\nparties as may be deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information\nand may be terminated, without cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided\nhowever, that all rights and obligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding\nanything herein to the contrary, the nondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue\nand bind Recipient for a period of five (5) years after the date of the last disclosure of Confidential Information hereunder, except that the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information that constitutes a trade secret shall continue in\neffect for so long as the Confidential Information remains a trade secret under applicable law. Any termination or expiration of this Agreement\nshall be without prejudice to the rights of Company against Recipient in respect of any claim or breach of any of the provisions of this\nAgreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall\ncause its Related Parties to return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes\nrelating to, the Confidential Information, including without limitation, any memoranda, photocopies, computer files and libraries, computer-\ngenerated data or other similar repositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was\nprovided, or (ii) receipt of a written notice from Company requesting return or destruction of the Confidential Information, and upon request,\nshall provide to Company written certification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to\nRecipient, Company does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret\ninformation except as required to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any\nsuch patents, copyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from\nany form of the Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the\nConfidential Information any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect\nits intellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of\nConfidential Information delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks,\ntrade dress, logos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by\nCompany, Recipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently\nexisting or hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall do\nall other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be effective\nregardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly, Company’s right,\ntitle and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the attempt to register or\nrecord the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any termination or expiration\nof this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback ("Feedback") to Company with\nrespect to the Confidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give\nFeedback that is subject to license terms that seek to require any Company product, technology, service or documentation incorporating or\nderived from such Feedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby\nacknowledges and agrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality\nand restricted use provided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the\nexclusive right to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without\nobligation or restriction of any kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient\nshall be solely in Company 's discretion. This Agreement shall not require Company to disclose any information or to require the consummation\nof any transaction in connection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall\nnot be deemed to have made any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential\nInformation, except to the extent that such representation or warranty may be expressly set forth in a definitive written agreement concerning any\nsubsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as\ncreating a partnership, joint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its\nown account, and neither is authorized to make any commitment or representation, express or implied, on the other’s behalf.\n8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential\nInformation were to be disclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this\nAgreement, and further agrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of\nthe terms of this Agreement without the necessity of posting bond or other security, in addition to all other rights and remedies available to\nCompany at law or in equity. Any trade secrets of the Company will be entitled to all of the protections and benefits under the applicable\nUniform Trade Secrets Act and any other applicable law. If any information that Company deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information nevertheless will be considered Confidential\nInformation for purposes of this Agreement. Recipient hereby waives any requirement that the Company submit proof of the economic value of\nany trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable\nattorneys' fees), expenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to\nfully comply with its covenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the\nsubject matter of this Agreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties\nregarding the subject matter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under\ntrade secret, copyright, patent, trademark or other laws that may apply to the subject matter of this Agreement both during and after the term of\nthis Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or\nwaiver is in writing and is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law,\nthis Agreement, or any rights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement\nshall be binding upon, and shall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys' Fees. If any party shall commence any action or proceeding against the other in order to enforce the\nprovisions of this Agreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing\nparty therein shall be entitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the\nparty who has breached this Agreement, as the case may be, including reasonable attorneys' fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of\nFlorida, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State\nof Florida. Any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in\nthe United States District Court for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of\nFlorida. Each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party\nhereby submits to the in personam jurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or\nunenforceable, the parties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’\nintentions and the remaining provisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\nThis Agreement has been executed as of the date first set forth above.\nJuly 10, 2006\nFugerer\nRobert Fugerer\nFebruary 18, 2006\nSun Energy Solar, Inc..\nBy: /s/Carl L. Smith\nTitle:\nDate:\nRecipient\nSignature: /s/ Robert\nPrinted:\nDate:	EX-10.6 11 x106.htm EXHIBIT 10.6 EMPLOYMENT CONTRACT BETWEEN SUN ENERGY SOLAR, INC.\n(NOW KNOWN AS SUNOVIA SOLAR, INC.) AND BOB FUGERER, DATED JULY 10, 2006, AND ADDENDUM\nExhibit 10.6\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT ("Agreement") is entered into this 2nd day of February, 2006 by and between Sun Energy Solar,\nInc., a Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America\n("Company"), and Robert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL\n3558("Recipient").\nRECITALS\nA.\nCompany and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually\nadvantageous business relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the\n"LimitedPurpose").\nB.\nTo facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter\ninto this Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby\nacknowledged, the parties agree as follows:\n1.\nDefinitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following\nmeanings:\n(a)\n"Confidential Information" mean any information, whether written, oral, magnetic, photographic, optical, or other form,\ntangible or intangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants,\nrepresentatives or agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being\nconfidential, or which under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any\ninformation pertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and\noperations\nof\nCompany\n(including\nsuch\ninformation\nvisually\navailable\nto\nRecipient\nat\nCompany's\npremises\nor\nCompany\npresentations),\nand\nincluding without limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b)\n"Related Party" or "Related Parties" shall mean the directors, officers, employees, legal, tax and other professional\nadvisors or consultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2.\nNon-Disclosure and Restricted Use of Confidential Information.\n(a)\nRecipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior\nwritten consent of Company, Recipient shall (i) not disclose any Confidentia Information to any other entity or person, and (ii) use the\nConfidential Information solely as necessary to implement the Limited Purpose and not for Recipient's own benefit or for the benefit of any other\nentity or person. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including\nwithout limitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or\notherwise reproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the\nexpress written consent of the Company.\n1\n(b)\nRecipient may disclose the Confidential Information to Related Parties on a "need to know" basis only. Recipient\nshall inform all Related Parties who have access to the Confidential Information that such Confidential Information is confidential and\nproprietary to Company and shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein\nprior to disclosure of any Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties\nand shall be responsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c)\nThe obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i)\nis or becomes generally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the\ntime of disclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence; (iii)\nRecipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that such\nthird party was not under an obligation of confidence with the Company at the time of the third party's disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i)\nthrough (v).\n(d)\nRecipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidentia\nInformation, (ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third\nparties as may be deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3.\nTerm of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information\nand may be terminated, without cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided\nhowever, that all rights and obligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding\nanything herein to the contrary, the nondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue\nand bind Recipient for a period of five (5) years after the date of the last disclosure of Confidential Information hereunder, except that the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information that constitutes a trade secret shall continue in\neffect for so long as the Confidential Information remains a trade secret under applicable law. Any termination or expiration of this Agreement\nshall be without prejudice to the rights of Company against Recipient in respect of any claim or breach of any of the provisions of this\nAgreement.\n4.\nReturn of Confidential Information. Recipient shall return to Company, or at Company's request, destroy, and shall\ncause its Related Parties to return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes\nrelating\nto,\nthe\nConfidential Information, including without limitation, any memoranda, photocopies, computer files and libraries, computer-\ngenerated data or other similar repositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was\nprovided, or (ii) receipt of a written notice from Company requesting return or destruction of the Confidential Information, and upon request,\nshall provide to Company written certification signed by an officer of Recipient that it has complied with the foregoing.\n2\n5.\nOwnership\n(a)\nAll Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to\nRecipient, Company does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret\ninformation except as required to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any\nsuch patents, copyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from\nany form of the Confidential Information. Recipient shall, at the reasonable written request of Company and at Company's expense, add to the\nConfidential Information any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect\nits intellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of\nConfidential Information delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks,\ntrade dress, logos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed\nby\nCompany, Recipient, any Related Party, or on either party's behalf) or other intellectual property rights throughout the world, whether currently\nexisting or hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, "IP Rights"). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo\nall other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be effective\nregardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly, Company's right,\ntitle and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the attempt to register or\nrecord the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any termination or expiration\nof this Agreement.\n(b)\nRecipient may from time to time provide suggestions, comments or other feedback ("Feedback") to Company with\nrespect\nto\nthe\nConfidential\nInformation.\nBoth\nparties\nagree\nthat\nall\nFeedback\nis\nand\nshall\nbe\ngiven\nentirely\nvoluntarily.\nRecipient\nshall\nnot\ngive\nFeedback that is subject to license terms that seek to require any Company product, technology, service or documentation incorporating or\nderived from such Feedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby\nacknowledges and agrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality\nand restricted use provided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the\nexclusive right to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without\nobligation or restriction of any kind on account of intellectual property rights or otherwise.\n6.\nAccuracy. and Completeness of Confidentia Information. The disclosure of any Confidential Information to Recipient\nshall be solely in Company discretion. This Agreement shall not require Company to disclose any information or to require the consummation\nof any transaction in connection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall\nnot\nbe\ndeemed\nto\nhave made any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential\nInformation, except to the extent that such representation or warranty may be expressly set forth in a definitive written agreement concerning any\nsubsequent business relationship.\n7.\nIndependent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as\ncreating a partnership, joint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its\nown account, and neither is authorized to make any commitment or representation, express or implied, on the other's behalf.\n3\n8.\nRemedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential\nInformation were to be disclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this\nAgreement, and further agrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of\nthe terms of this Agreement without the necessity of posting bond or other security, in addition to all other rights and remedies available\nto\nCompany at law or in equity. Any trade secrets of the Company will be entitled to all of the protections and benefits under the applicable\nUniform Trade Secrets Act and any other applicable law. If any information that Company deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information nevertheless will be considered Confidential\nInformation for purposes of this Agreement. Recipient hereby waives any requirement that the Company submit proof of the economic value of\nany trade secret.\n9.\nIndemnity.. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable\nattorneys' fees), expenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to\nfully comply with its covenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10.\nEntire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the\nsubject matter of this Agreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties\nregarding the subject matter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under\ntrade secret, copyright, patent, trademark or other laws that may apply to the subject matter of this Agreement both during and after the term of\nthis Agreement.\n11.\nAmendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or\nwaiver is in writing and is signed by each of the parties hereto.\n12.\nAssignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law,\nthis Agreement, or any rights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement\nshall be binding upon, and shall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13.\nAttorneys' Fees. If any party shall commence any action or proceeding against the other in order to enforce the\nprovisions of this Agreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing\nparty therein shall be entitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the\nparty who has breached this Agreement, as the case may be, including reasonable attorneys' fees.\n14.\nApplicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of\nFlorida, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State\nof Florida. Any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in\nthe United States District Court for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of\nFlorida. Each party hereby agrees that such courts shall have personam jurisdiction and venue with respect to such party, and each party\nhereby submits to the in personam jurisdiction and venue of such courts.\n15.\nSeverability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or\nunenforceable, the parties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties'\nintentions and the remaining provisions shall remain in full force and effect.\n4\n[SIGNATURE PAGE FOLLOWS]\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc..\nBy: /s/Carl L. Smith\nTitle:\nCEO\nDate:\nJuly 10, 2006\nRecipient\nSignature /s/ Robert\nFugerer\nPrinted:\nRobert Fugerer\nDate:\nFebruary 18, 2006	EX-10.6 11 ex106.htm EXHIBIT 10.6 EMPLOYMENT CONTRACT BETWEEN SUN ENERGY SOLAR, INC.\n(NOW KNOWN AS SUNOVIA SOLAR, INC.) AND BOB FUGERER, DATED JULY 10, 2006, AND ADDENDUM\nExhibit 10.6\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT ("Agreement") is entered into this 2nd day of February, 2006 by and between Sun Energy Solar,\nInc., a Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America\n("Company"), and Robert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL\n33558("Recipient").\nRECITALS\nA.\nCompany and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually\nadvantageous business relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the\n“LimitedPurpose”).\nB.\nTo facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter\ninto this Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby\nacknowledged, the parties agree as follows:\n1.\nDefinitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following\nmeanings:\n(a)\n"Confidential Information" mean any information, whether written, oral, magnetic, photographic, optical, or other form,\ntangible or intangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants,\nrepresentatives or agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being\nconfidential, or which under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any\ninformation pertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and\noperations of Company (including such information visually available to Recipient at Company’s premises or Company presentations), and\nincluding without limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b)\n"Related Party" or "Related Parties" shall mean the directors, officers, employees, legal, tax and other professional\nadvisors or consultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2.\nNon-Disclosure and Restricted Use of Confidential Information.\n(a)\nRecipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior\nwritten consent of Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the\nConfidential Information solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other\nentity or person. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including\nwithout limitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or\notherwise reproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the\nexpress written consent of the Company.\n1\n(b)\nRecipient may disclose the Confidential Information to Related Parties on a "need to know" basis only. Recipient\nshall inform all Related Parties who have access to the Confidential Information that such Confidential Information is confidential and\nproprietary to Company and shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein\nprior to disclosure of any Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties\nand shall be responsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c)\nThe obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i)\nis or becomes generally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the\ntime of disclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence; (iii)\nRecipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that such\nthird party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections (i)\nthrough (v).\n(d)\nRecipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential\nInformation, (ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third\nparties as may be deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3.\nTerm of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information\nand may be terminated, without cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided\nhowever, that all rights and obligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding\nanything herein to the contrary, the nondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue\nand bind Recipient for a period of five (5) years after the date of the last disclosure of Confidential Information hereunder, except that the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information that constitutes a trade secret shall continue in\neffect for so long as the Confidential Information remains a trade secret under applicable law. Any termination or expiration of this Agreement\nshall be without prejudice to the rights of Company against Recipient in respect of any claim or breach of any of the provisions of this\nAgreement.\n4.\nReturn of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall\ncause its Related Parties to return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes\nrelating to, the Confidential Information, including without limitation, any memoranda, photocopies, computer files and libraries, computer-\ngenerated data or other similar repositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was\nprovided, or (ii) receipt of a written notice from Company requesting return or destruction of the Confidential Information, and upon request,\nshall provide to Company written certification signed by an officer of Recipient that it has complied with the foregoing.\n2\n5.\nOwnership.\n(a)\nAll Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to\nRecipient, Company does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret\ninformation except as required to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any\nsuch patents, copyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from\nany form of the Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the\nConfidential Information any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect\nits intellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of\nConfidential Information delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks,\ntrade dress, logos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by\nCompany, Recipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently\nexisting or hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall do\nall other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be effective\nregardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly, Company’s right,\ntitle and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the attempt to register or\nrecord the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any termination or expiration\nof this Agreement.\n(b)\nRecipient may from time to time provide suggestions, comments or other feedback ("Feedback") to Company with\nrespect to the Confidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give\nFeedback that is subject to license terms that seek to require any Company product, technology, service or documentation incorporating or\nderived from such Feedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby\nacknowledges and agrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality\nand restricted use provided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the\nexclusive right to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without\nobligation or restriction of any kind on account of intellectual property rights or otherwise.\n6.\nAccuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient\nshall be solely in Company 's discretion. This Agreement shall not require Company to disclose any information or to require the consummation\nof any transaction in connection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall\nnot be deemed to have made any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential\nInformation, except to the extent that such representation or warranty may be expressly set forth in a definitive written agreement concerning any\nsubsequent business relationship.\n7.\nIndependent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as\ncreating a partnership, joint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its\nown account, and neither is authorized to make any commitment or representation, express or implied, on the other’s behalf.\n3\n8.\nRemedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential\nInformation were to be disclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this\nAgreement, and further agrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of\nthe terms of this Agreement without the necessity of posting bond or other security, in addition to all other rights and remedies available to\nCompany at law or in equity. Any trade secrets of the Company will be entitled to all of the protections and benefits under the applicable\nUniform Trade Secrets Act and any other applicable law. If any information that Company deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information nevertheless will be considered Confidential\nInformation for purposes of this Agreement. Recipient hereby waives any requirement that the Company submit proof of the economic value of\nany trade secret.\n9.\nIndemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable\nattorneys' fees), expenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to\nfully comply with its covenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10.\nEntire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the\nsubject matter of this Agreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties\nregarding the subject matter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under\ntrade secret, copyright, patent, trademark or other laws that may apply to the subject matter of this Agreement both during and after the term of\nthis Agreement.\n11.\nAmendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or\nwaiver is in writing and is signed by each of the parties hereto.\n12.\nAssignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law,\nthis Agreement, or any rights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement\nshall be binding upon, and shall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13.\nAttorneys' Fees. If any party shall commence any action or proceeding against the other in order to enforce the\nprovisions of this Agreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing\nparty therein shall be entitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the\nparty who has breached this Agreement, as the case may be, including reasonable attorneys' fees.\n14.\nApplicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of\nFlorida, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State\nof Florida. Any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in\nthe United States District Court for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of\nFlorida. Each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party\nhereby submits to the in personam jurisdiction and venue of such courts.\n15.\nSeverability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or\nunenforceable, the parties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’\nintentions and the remaining provisions shall remain in full force and effect.\n4\n[SIGNATURE PAGE FOLLOWS]\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc..\nBy: /s/Carl L. Smith\nTitle:\nCEO\nDate:\nJuly 10, 2006\nRecipient\nSignature: /s/ Robert\nFugerer\nPrinted:\nRobert Fugerer\nDate:\nFebruary 18, 2006
ec884c36abae8ab1ce4a5465771293cb.pdf	effective_date jurisdiction party term	EX-2.24 ex2-2.txt NON-COMPETITIONANDNON-DISCLOSURE AGREEMENT ----------------------------------------\n-- -- THI S NO N-COMPETITION AND NON-DISCLOSURE AGREEMENT (the "Agreement") is made and entered\ninto as of the 1st day of April, 2003, by and between BELCAN CORPORATION, an Ohio corporation ("Belcan"), and\nARC COMMUNICATIONS, INC., a New Jersey corporation ("ARC"). All initially capitalized terms not otherwise\ndefined shall have the meanings ascribed to them in the Purchase Agreement (later defined). WHEREAS, the parties\nhereto are parties to a certain Stock Purchase Agreement (the "Purchase Agreement") dated as of April 1, 2003, pursuant\nto which ARC agreed to sell to Belcan the Purchased Shares in the Company; WHEREAS, ARC will receive valuable\nconsideration from Belcan for the sale of the Purchased Shares in the Company and will also receive the Note as\nadditional consideration for its covenants contained herein; WHEREAS, ARC has had access to all material and\notherwise confidential information relating to the Company; WHEREAS, the Company is engaged in the business of\nproviding on-line training to professionals in the medical arena (the "Business"); WHEREAS, Belcan would not be\nwilling to enter into the Purchase Agreement without the agreement of ARC to execute this Non-Competition and Non-\nDisclosure Agreement, and Belcan has expressly conditioned its obligations under the Purchase Agreement on the\nentering into of this Non-Competition and Non-Disclosure Agreement. NOW, THEREFORE, in pursuance of the above\nand in consideration of the terms and conditions contained herein and for other good and valuable considerations, the\nreceipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Non-Disclosure of the\nCompany's Confidential Information and Trade ----------------------------------------------------------------------- Secrets. ARC\nhas learned trade secrets and confidential information of the ------- Company, including, but not limited to, the software\nof the Company, marketing, price information, customer lists, identities of customer contact persons, lists of prospective\ncustomers, market research, sales systems, marketing programs, budgets, pricing strategy, identity and requirements of\nnational accounts, methods of operating, other trade secrets and confidential information regarding customers and\nemployees of the Company or its customers and other information about the Company's Business that is not readily\nknown to the public and gives the Company an opportunity to obtain an advantage over competitors who do not know\nsuch information (collectively, the "Confidential Information"). ARC acknowledges that the Company has invested\nsubstantial sums in the development of its Confidential Information. ARC covenants and agrees that they will not,\ndirectly or indirectly, disclose or communicate to any person or entity any Confidential Information of the Company;\nexcept (i) in connection with the enforcement of ARC's rights under the Purchase Agreement, or (ii) as otherwise -2-\nrequired by law. This covenant has no geographical or territorial restriction or limitation and applies no matter where\nARC may be located in the future. 2. Non-Solicitation Covenant. For a period of five (5) years from the date --------------\n-- -- - -- - -- - - hereof, ARC, acting either directly or indirectly, through any other person, firm, or corporation, covenants and\nagrees not to (i) induce or attempt to induce or influence any employee of the Company to terminate employment with\nthe Company when the Company desires to retain that person's services; (ii) in any way interfere with the relationship\nbetween the Company and any employee of the Company; or (iii) employ, or otherwise engage as an employee,\nindependent contractor or otherwise, any employee of the Company. 3. Non-Competition. For a period of five (5) years\nfrom the date hereof, --------------- ARC shall not, acting directly or indirectly, (i) have any ownership interest in any\ncompeting business, (ii) call on, solicit or have business communications with respect to a competing business with any\nof the Company's customers or prospective customers for the purpose of obtaining competing business from such\ncustomer or prospective customer other than for the benefit of the Company, or (iii) participate in the formation or start-\nup of a competing business. As used in this Agreement, the term "competing business" means any business competing\nwith the Company for the Company's Business anywhere in the United States. As used in this Agreement, the term\n"customer" means any customer of the Company whose identity ARC learned through ARC's ownership of the Company\nor with whom ARC had business contact during the twelve (12) months immediately prior to the date hereof. 4. Return\nof Confidential Information. Upon the Closing (as defined in the ----------------------------------- Purchase Agreement) of\nthe transactions contemplated by the Purchase Agreement, ARC agrees that all copies and originals of all documents and\nother materials containing or referring to the Company's Confidential Information as may be in ARC's possession, or\nover which ARC may have control, shall be delivered by ARC to Belcan immediately, with no request being required. 5.\nInjunctive Relief. ARC acknowledges and agrees that a breach of any of ------------------ the covenants set forth in this\nAgreement will cause irreparable injury and damage to Belcan for which Belcan would have no adequate remedy at law,\nand ARC further agrees that in the event of said breach, Belcan, without having to prove damages, shall be entitled to an\nimmediate restraining order and injunction to prevent such violation or continued violation, and to all costs and\nexpenses, including Belcan's reasonable attorney fees, in addition to any other remedies to which Belcan may be entitled\nat law or equity. 6. Severability. If any provision of this Agreement is held to be illegal, ------------- invalid, or\nunenforceable in any respect, Belcan and ARC agree that such term or provision shall be deemed to be modified to the\nextent necessary to permit its enforcement to the maximum extent permitted by applicable law. 7. Assignment. This\nAgreement shall be binding upon and inure to the ----------- benefit of Belcan, its successors and assigns. 8. Governing\nLaw, Forum Selection, and Consent to Personal Jurisdiction. ------------------------------------------------------------------------\nThis Agreement shall be governed by the laws of the State of Ohio. -3- The remainder of this page intentionally left\nblank. -4- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above\nwritten. WITNESSES: BELCAN CORPORATION BY: /s/Richard J. Lajoie, Jr. - -- - -- - -- - -- - -- - -- -- - -- - -- - -- Richard J.\nLajoie, Jr. Vice President ARC COMMUNICATIONS, INC. BY: /s/ Michael Rubel ----------------------------- Michael\nRubel Chief Operating Officer	EX-2.2 4 ex2-2.txt NON-COMPETITION AND NON-DISCLOSURE AGREEMENT ------nmmmmom oo\n---- THIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (the "Agreement") is made and entered\ninto as of the 1st day of April, 2003, by and between BELCAN CORPORATION, an Ohio corporation ("Belcan"), and\nARC COMMUNICATIONS, INC., a New Jersey corporation ("ARC"). All initially capitalized terms not otherwise\ndefined shall have the meanings ascribed to them in the Purchase Agreement (later defined). WHEREAS, the parties\nhereto are parties to a certain Stock Purchase Agreement (the "Purchase Agreement") dated as of April 1, 2003, pursuant\nto which ARC agreed to sell to Belcan the Purchased Shares in the Company; WHEREAS, ARC will receive valuable\nconsideration from Belcan for the sale of the Purchased Shares in the Company and will also receive the Note as\nadditional consideration for its covenants contained herein; WHEREAS, ARC has had access to all material and\notherwise confidential information relating to the Company; WHEREAS, the Company is engaged in the business of\nproviding on-line training to professionals in the medical arena (the "Business"); WHEREAS, Belcan would not be\nwilling to enter into the Purchase Agreement without the agreement of ARC to execute this Non-Competition and Non-\nDisclosure Agreement, and Belcan has expressly conditioned its obligations under the Purchase Agreement on the\nentering into of this Non-Competition and Non-Disclosure Agreement. NOW, THEREFORE, in pursuance of the above\nand in consideration of the terms and conditions contained herein and for other good and valuable considerations, the\nreceipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Non-Disclosure of the\nCompany's Confidential Information and Trade ----------===mm = Secrets. ARC\nhas learned trade secrets and confidential information of the ------- Company, including, but not limited to, the software\nof the Company, marketing, price information, customer lists, identities of customer contact persons, lists of prospective\ncustomers, market research, sales systems, marketing programs, budgets, pricing strategy, identity and requirements of\nnational accounts, methods of operating, other trade secrets and confidential information regarding customers and\nemployees of the Company or its customers and other information about the Company's Business that is not readily\nknown to the public and gives the Company an opportunity to obtain an advantage over competitors who do not know\nsuch information (collectively, the "Confidential Information"). ARC acknowledges that the Company has invested\nsubstantial sums in the development of its Confidential Information. ARC covenants and agrees that they will not,\ndirectly or indirectly, disclose or communicate to any person or entity any Confidential Information of the Company;\nexcept (i) in connection with the enforcement of ARC's rights under the Purchase Agreement, or (ii) as otherwise -2-\nrequired by law. This covenant has no geographical or territorial restriction or limitation and applies no matter where\nARC may be located in the future. 2. Non-Solicitation Covenant. For a period of five (5) years from the date --------------\n------------ hereof, ARC, acting either directly or indirectly, through any other person, firm, or corporation, covenants and\nagrees not to (i) induce or attempt to induce or influence any employee of the Company to terminate employment with\nthe Company when the Company desires to retain that person's services; (ii) in any way interfere with the relationship\nbetween the Company and any employee of the Company; or (iii) employ, or otherwise engage as an employee,\nindependent contractor or otherwise, any employee of the Company. 3. Non-Competition. For a period of five (5) years\nfrom the date hereof, --------------- ARC shall not, acting directly or indirectly, (i) have any ownership interest in any\ncompeting business, (ii) call on, solicit or have business communications with respect to a competing business with any\nof the Company's customers or prospective customers for the purpose of obtaining competing business from such\ncustomer or prospective customer other than for the benefit of the Company, or (iii) participate in the formation or start-\nup of a competing business. As used in this Agreement, the term "competing business" means any business competing\nwith the Company for the Company's Business anywhere in the United States. As used in this Agreement, the term\n"customer" means any customer of the Company whose identity ARC learned through ARC's ownership of the Company\nor with whom ARC had business contact during the twelve (12) months immediately prior to the date hereof. 4. Return\nof Confidential Information. Upon the Closing (as defined in the -------=--=-=--=mmemmmmmmmeeeeo Purchase Agreement) of\nthe transactions contemplated by the Purchase Agreement, ARC agrees that all copies and originals of all documents and\nother materials containing or referring to the Company's Confidential Information as may be in ARC's possession, or\nover which ARC may have control, shall be delivered by ARC to Belcan immediately, with no request being required. 5.\nInjunctive Relief. ARC acknowledges and agrees that a breach of any of ------------------ the covenants set forth in this\nAgreement will cause irreparable injury and damage to Belcan for which Belcan would have no adequate remedy at law,\nand ARC further agrees that in the event of said breach, Belcan, without having to prove damages, shall be entitled to an\nimmediate restraining order and injunction to prevent such violation or continued violation, and to all costs and\nexpenses, including Belcan's reasonable attorney fees, in addition to any other remedies to which Belcan may be entitled\nat law or equity. 6. Severability. If any provision of this Agreement is held to be illegal, ------------- invalid, or\nunenforceable in any respect, Belcan and ARC agree that such term or provision shall be deemed to be modified to the\nextent necessary to permit its enforcement to the maximum extent permitted by applicable law. 7. Assignment. This\nAgreement shall be binding upon and inure to the ----------- benefit of Belcan, its successors and assigns. 8. Governing\nLaw, Forum Selection, and Consent to Personal Jurisdiction. ---==-=-========= - o e oo\nThis Agreement shall be governed by the laws of the State of Ohio. -3- The remainder of this page intentionally left\nblank. -4- IN WITNESS WHEREQF, the parties have executed this Agreement as of the date and year first above\nwritten. WITNESSES: BELCAN CORPORATION BY: /s/Richard J. Lajoie, Jr. -------=---mmmmmmmmmmmm - Richard J.\nLajoie, Jr. Vice President ARC COMMUNICATIONS, INC. BY: /s/ Michael Rubel --------------==nemmeeeeeu- Michael\nRubel Chief Operating Officer	EX-2.2 4 ex2-2.txt NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (the "Agreement") is made and entered\ninto as of the 1st day of April, 2003, by and between BELCAN CORPORATION, an Ohio corporation ("Belcan"), and\nARC COMMUNICATIONS, INC., a New Jersey corporation ("ARC"). All initially capitalized terms not otherwise\ndefined shall have the meanings ascribed to them in the Purchase Agreement (later defined). WHEREAS, the parties\nhereto are parties to a certain Stock Purchase Agreement (the "Purchase Agreement") dated as of April 1, 2003, pursuant\nto which ARC agreed to sell to Belcan the Purchased Shares in the Company; WHEREAS, ARC will receive valuable\nconsideration from Belcan for the sale of the Purchased Shares in the Company and will also receive the Note as\nadditional consideration for its covenants contained herein; WHEREAS, ARC has had access to all material and\notherwise confidential information relating to the Company; WHEREAS, the Company is engaged in the business of\nproviding on-line training to professionals in the medical arena (the "Business"); WHEREAS, Belcan would not be\nwilling to enter into the Purchase Agreement without the agreement of ARC to execute this Non-Competition and Non-\nDisclosure\nAgreement,\nand\nBelcan\nhas\nexpressly\nconditioned\nits\nobligations\nunder\nthe\nPurchase\nAgreement\non\nthe\nentering into of this Non-Competition and Non-Disclosure Agreement. NOW, THEREFORE, in pursuance of the above\nand in consideration of the terms and conditions contained herein and for other good and valuable considerations, the\nreceipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Non-Disclosure of the\nCompany's Confidential Information and Trade\nSecrets. ARC\nhas learned trade secrets and confidential information of the Company, including, but not limited to, the software\nof the Company, marketing, price information, customer lists, identities of customer contact persons, lists of prospective\ncustomers, market research, sales systems, marketing programs, budgets, pricing strategy, identity and requirements\nof\nnational accounts, methods of operating, other trade secrets and confidential information regarding customers and\nemployees of the Company or its customers and other information about the Company's Business that is not readily\nknown to the public and gives the Company an opportunity to obtain an advantage over competitors who do not know\nsuch information (collectively, the "Confidential Information"). ARC acknowledges that the Company has invested\nsubstantial sums in the development of its Confidential Information. ARC covenants and agrees that they will not,\ndirectly or indirectly, disclose or communicate to any person or entity any Confidential Information of the Company;\nexcept (i) in connection with the enforcement of ARC's rights under the Purchase Agreement, or (ii) as otherwise -2-\nrequired by law. This covenant has no geographical or territorial restriction or limitation and applies no matter where\nARC may be located in the future. 2. Non-Solicitation Covenant. For a period of five (5) years from the date\nhereof, ARC, acting either directly or indirectly, through any other person, firm, or corporation, covenants and\nagrees\nnot\nto\n(i)\ninduce\nor\nattempt\nto\ninduce\nor\ninfluence\nany\nemployee\nof\nthe\nCompany\nto\nterminate\nemployment\nwith\nthe Company when the Company desires to retain that person's services; (ii) in any way interfere with the relationship\nbetween the Company and any employee of the Company; or (iii) employ, or otherwise engage as an employee,\nindependent contractor or otherwise, any employee of the Company. 3. Non-Competition. For a period of five (5)\nyears\nfrom the date hereof,\nARC shall not, acting directly or indirectly, (i) have any ownership interest in any\ncompeting business, (ii) call on, solicit or have business communications with respect to a competing business with any\nof the Company's customers or prospective customers for the purpose of obtaining competing business from such\ncustomer or prospective customer other than for the benefit of the Company, or (iii) participate in the formation or start-\nup of a competing business. As used in this Agreement, the term "competing business" means any business competing\nwith the Company for the Company's Business anywhere in the United States. As used in this Agreement, the term\n"customer" means any customer of the Company whose identity ARC learned through ARC's ownership of the Company\nor with whom ARC had business contact during the twelve (12) months immediately prior to the date hereof. 4. Return\nof Confidential Information. Upon the Closing (as defined in the\nPurchase Agreement) of\nthe transactions contemplated by the Purchase Agreement, ARC agrees that all copies and originals of all documents and\nother materials containing or referring to the Company's Confidential Information as may be in ARC's possession, or\nover which ARC may have control, shall be delivered by ARC to Belcan immediately, with no request being required\n5.\nInjunctive Relief. ARC acknowledges and agrees that a breach of any of\nthe covenants set forth in this\nAgreement will cause irreparable injury and damage to Belcan for which Belcan would have no adequate remedy at law,\nand ARC further agrees that in the event of said breach, Belcan, without having to prove damages, shall be entitled\nto\nan\nimmediate restraining order and injunction to prevent such violation or continued violation, and to all costs and\nexpenses, including Belcan's reasonable attorney fees, in addition to any other remedies to which Belcan may be entitled\nat law or equity. 6. Severability. If any provision of this Agreement is held to be illegal,\ninvalid, or\nunenforceable in any respect, Belcan and ARC agree that such term or provision shall be deemed to be modified to the\nextent necessary to permit its enforcement to the maximum extent permitted by applicable law. 7. Assignment. This\nAgreement shall be binding upon and inure to the\nbenefit of Belcan, its successors and assigns. 8. Governing\nLaw, Forum Selection and Consent to Personal Jurisdiction.\nThis Agreement shall be governed by the laws of the State of Ohio -3- The remainder of this page intentionally left\nblank. -4- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above\nwritten. WITNESSES: BELCAN CORPORATION BY: /s/Richard J. Lajoie, Jr.\nRichard J.\nLajoie, Jr. Vice President ARC COMMUNICATIONS INC. BY: /s/ Michael Rubel\nMichael\nRubel Chief Operating Officer	EX-2.24 ex2-2.txt NON-COMPETITIONANDNON-DISCLOSURE AGREEMENT ----------------------------------------\n-- -- THI S NO N-COMPETITION AND NON-DISCLOSURE AGREEMENT (the "Agreement") is made and entered\ninto as of the 1st day of April, 2003, by and between BELCAN CORPORATION, an Ohio corporation ("Belcan"), and\nARC COMMUNICATIONS, INC., a New Jersey corporation ("ARC"). All initially capitalized terms not otherwise\ndefined shall have the meanings ascribed to them in the Purchase Agreement (later defined). WHEREAS, the parties\nhereto are parties to a certain Stock Purchase Agreement (the "Purchase Agreement") dated as of April 1, 2003, pursuant\nto which ARC agreed to sell to Belcan the Purchased Shares in the Company; WHEREAS, ARC will receive valuable\nconsideration from Belcan for the sale of the Purchased Shares in the Company and will also receive the Note as\nadditional consideration for its covenants contained herein; WHEREAS, ARC has had access to all material and\notherwise confidential information relating to the Company; WHEREAS, the Company is engaged in the business of\nproviding on-line training to professionals in the medical arena (the "Business"); WHEREAS, Belcan would not be\nwilling to enter into the Purchase Agreement without the agreement of ARC to execute this Non-Competition and Non-\nDisclosure Agreement, and Belcan has expressly conditioned its obligations under the Purchase Agreement on the\nentering into of this Non-Competition and Non-Disclosure Agreement. NOW, THEREFORE, in pursuance of the above\nand in consideration of the terms and conditions contained herein and for other good and valuable considerations, the\nreceipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Non-Disclosure of the\nCompany's Confidential Information and Trade ----------------------------------------------------------------------- Secrets. ARC\nhas learned trade secrets and confidential information of the ------- Company, including, but not limited to, the software\nof the Company, marketing, price information, customer lists, identities of customer contact persons, lists of prospective\ncustomers, market research, sales systems, marketing programs, budgets, pricing strategy, identity and requirements of\nnational accounts, methods of operating, other trade secrets and confidential information regarding customers and\nemployees of the Company or its customers and other information about the Company's Business that is not readily\nknown to the public and gives the Company an opportunity to obtain an advantage over competitors who do not know\nsuch information (collectively, the "Confidential Information"). ARC acknowledges that the Company has invested\nsubstantial sums in the development of its Confidential Information. ARC covenants and agrees that they will not,\ndirectly or indirectly, disclose or communicate to any person or entity any Confidential Information of the Company;\nexcept (i) in connection with the enforcement of ARC's rights under the Purchase Agreement, or (ii) as otherwise -2-\nrequired by law. This covenant has no geographical or territorial restriction or limitation and applies no matter where\nARC may be located in the future. 2. Non-Solicitation Covenant. For a period of five (5) years from the date --------------\n-- -- - -- - -- - - hereof, ARC, acting either directly or indirectly, through any other person, firm, or corporation, covenants and\nagrees not to (i) induce or attempt to induce or influence any employee of the Company to terminate employment with\nthe Company when the Company desires to retain that person's services; (ii) in any way interfere with the relationship\nbetween the Company and any employee of the Company; or (iii) employ, or otherwise engage as an employee,\nindependent contractor or otherwise, any employee of the Company. 3. Non-Competition. For a period of five (5) years\nfrom the date hereof, --------------- ARC shall not, acting directly or indirectly, (i) have any ownership interest in any\ncompeting business, (ii) call on, solicit or have business communications with respect to a competing business with any\nof the Company's customers or prospective customers for the purpose of obtaining competing business from such\ncustomer or prospective customer other than for the benefit of the Company, or (iii) participate in the formation or start-\nup of a competing business. As used in this Agreement, the term "competing business" means any business competing\nwith the Company for the Company's Business anywhere in the United States. As used in this Agreement, the term\n"customer" means any customer of the Company whose identity ARC learned through ARC's ownership of the Company\nor with whom ARC had business contact during the twelve (12) months immediately prior to the date hereof. 4. Return\nof Confidential Information. Upon the Closing (as defined in the ----------------------------------- Purchase Agreement) of\nthe transactions contemplated by the Purchase Agreement, ARC agrees that all copies and originals of all documents and\nother materials containing or referring to the Company's Confidential Information as may be in ARC's possession, or\nover which ARC may have control, shall be delivered by ARC to Belcan immediately, with no request being required. 5.\nInjunctive Relief. ARC acknowledges and agrees that a breach of any of ------------------ the covenants set forth in this\nAgreement will cause irreparable injury and damage to Belcan for which Belcan would have no adequate remedy at law,\nand ARC further agrees that in the event of said breach, Belcan, without having to prove damages, shall be entitled to an\nimmediate restraining order and injunction to prevent such violation or continued violation, and to all costs and\nexpenses, including Belcan's reasonable attorney fees, in addition to any other remedies to which Belcan may be entitled\nat law or equity. 6. Severability. If any provision of this Agreement is held to be illegal, ------------- invalid, or\nunenforceable in any respect, Belcan and ARC agree that such term or provision shall be deemed to be modified to the\nextent necessary to permit its enforcement to the maximum extent permitted by applicable law. 7. Assignment. This\nAgreement shall be binding upon and inure to the ----------- benefit of Belcan, its successors and assigns. 8. Governing\nLaw, Forum Selection, and Consent to Personal Jurisdiction. ------------------------------------------------------------------------\nThis Agreement shall be governed by the laws of the State of Ohio. -3- The remainder of this page intentionally left\nblank. -4- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above\nwritten. WITNESSES: BELCAN CORPORATION BY: /s/Richard J. Lajoie, Jr. - -- - -- - -- - -- - -- - -- -- - -- - -- - -- Richard J.\nLajoie, Jr. Vice President ARC COMMUNICATIONS, INC. BY: /s/ Michael Rubel ----------------------------- Michael\nRubel Chief Operating Officer
f1bfe37debd61ba519ec2671755a49a9.pdf	effective_date jurisdiction party term	EX-7.1 2 dex71.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.1\nMarch 21, 2011\nLeonard Green & Partners, L.P.\n11111 Santa Monica Boulevard\nSuite 2000\nLos Angeles, CA 90025\nAttention: Jonathan Seiffer\nGentlemen:\nIn connection with your consideration of a possible negotiated transaction with BJ’s Wholesale, Inc. (collectively with its subsidiaries,\naffiliates and divisions, the “Company”), you have requested, and the Company is prepared to make available to you, certain information concerning\nits business, operations, assets and liabilities. As a condition to such information being furnished, you agree to treat any information concerning the\nCompany (whether prepared by the Company, its advisors or otherwise) which has been or is furnished to you or your directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) (collectively, “Representatives”) by or\non behalf of the Company in connection with your consideration of a possible negotiated transaction with the Company (herein collectively referred\nto as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions\nhereinafter set forth.\nThe term “Evaluation Material” shall be deemed to include all such information furnished to you or any of your Representatives by the\nCompany or any of its Representatives, irrespective of the form of communication (whether provided orally or in writing or provided or stored on\nelectronic or magnetic media, film or any other form or media), and whether such information is so furnished before, on or after the date hereof, or\ninformation which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, and all\nanalyses, compilations, data, forecasts, studies, notes, interpretations, memoranda or other documents prepared by you or your Representatives\ncontaining, reflecting or based in whole or in part on any such information. The term “Evaluation Material” does not include information which (i) at\nthe time of disclosure is generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives;\n(ii) you can establish was within your or any of your Representatives’ possession prior to it being furnished to you or your Representatives by or on\nbehalf of the Company pursuant hereto, provided that such information is not known to you to be subject to another confidentiality agreement with\nor other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information; (iii) becomes\navailable to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not\nknown to you to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or\nany other party with respect to such information; or (iv) you can establish is independently developed by you or your Representatives without\nutilizing in any way any Evaluation Material or violating any of your obligations under this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 2\nYou hereby agree that you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated\ntransaction between the Company and you, that the Evaluation Material will be kept confidential and that you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (ii) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible negotiated transaction with the Company, who agree to keep such information\nconfidential and to use such information solely for the limited purpose described in this clause (ii) and who are provided with a copy of this letter\nagreement and who are instructed to comply with the terms thereof. In any event, you shall be responsible for any breach of this letter agreement by\nany of your Representatives, and you agree, at your sole expense, to take all reasonable measures (including, if necessary, court proceedings) to\nrestrain your Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material. It is understood and agreed that the\nCompany may, in its discretion, from time to time determine that disclosure of certain competitively sensitive Evaluation Material to certain of your\nRepresentatives may be inappropriate, in which case at the Company’s request you shall refrain from disclosing such Evaluation Material to such\nRepresentatives.\nIn addition, both parties agree that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any\nother person the fact that the Evaluation Material has been made available to it, that investigations, discussions or negotiations are taking place\nconcerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof or the identity of the parties thereto), provided that either party may make such disclosure if such party has received advice from its outside\ncounsel that such disclosure must be made in order to comply with any law or regulation and provided further that each party to this letter agreement\nacknowledges that (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as\npromptly as practicable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation\nMaterial will be made available to you and that you will be evaluating a potential acquisition of the Company. Without limiting the generality of the\nforegoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly, enter into any agreement,\narrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with any person regarding a\npossible transaction involving the Company, in each case other than any of your Representatives. The term “person” as used in this letter agreement\nshall be broadly interpreted to include the media and any governmental representative or authority, corporation, company, partnership, joint venture,\ngroup, limited liability company, other entity or individual.\nExcept with respect to the debt financing sources previously identified to and agreed by the Representatives of the Company (each, an\n“Exempt Party”), you agree that neither you nor any of your Representatives will provide the Evaluation Material to, disclose information of the type\ndescribed in the preceding paragraph to, or have any discussions concerning a potential transaction involving the Company with, any potential debt\nor equity financing source without\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 3\nthe written consent of the Company. Whether or not any such consent is granted, you agree that you will not, directly or indirectly, require, instruct\nor encourage any financial institutions or financing sources, including any financial advisor, or any legal or other advisory firms, not to be retained\nby any other person in connection with a potential transaction with the Company and, if requested, you agree to consent to any such retention, and to\nwaive any actual or alleged conflict that may arise from any existing or past relationship with you, in connection with a potential transaction with the\nCompany. With respect to any Exempt Party, or in the event the Company provides such consent with respect to any other potential financing source,\nsuch Exempt Party or other potential financing source shall be considered a Representative for all purposes of this letter agreement. However, if the\nCompany provides such consent with respect to any potential equity financing source, in connection therewith such potential equity financing source\nmay execute and deliver to the Company, prior to the receipt of any Evaluation Material from you, a non-disclosure agreement with the Company in\nform and substance reasonably satisfactory to the Company, in which case you and such potential equity financing source shall each be bound by\nyour respective agreements with the Company and not by the other’s, and neither you nor such potential equity financing source shall be responsible\nor liable for any breach by the other.\nIn the event that you or any of your Representatives are requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material, you shall\nprovide the Company with prompt written notice (to the extent legally permitted) of any such request or requirement and shall consult and cooperate\nwith the Company to the fullest extent permitted by law so that the Company may seek (at its sole cost and expense) a protective order or other\nappropriate remedy (including taking legally available steps to resist or narrow any such request or requirement) and/or waive compliance with the\nprovisions of this letter agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of\nyour Representatives are nonetheless, in the opinion of your respective outside counsel, legally compelled to disclose Evaluation Material to any\ntribunal or other entity, you or your Representatives may, without liability hereunder, disclose to such tribunal or other entity only that portion of the\nEvaluation Material which such counsel advises you or your Representative is legally required to be disclosed, provided that you and your\nRepresentative each exercise your best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating\nwith the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation\nMaterial by such tribunal or other entity.\nIf either party decides that it does not wish to proceed with a transaction with the other party, it will promptly inform the other party of that\ndecision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in no event later than five business\ndays after such request), at your option, deliver to the Company, or destroy, all Evaluation Material (and all copies thereof, regardless of the form or\nmedia on which it may be stored or embodied ) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you\nand your Representatives shall not retain any copies, extracts or other reproductions (regardless of the form thereof or media on which they may be\nstored or embodied) in whole or in part of such material; provided that nothing shall require the alteration,\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 4\nmodification, deletion or destruction of latent data (such as deleted files, and other non-logical data types, such as memory dumps, swap files,\ntemporary files, printer spool files, and metadata) that can only be retrieved by computer forensics experts and is generally considered inaccessible\nwithout the use of specialized tools and techniques. In the event of such a decision or request, all Evaluation Material prepared by you or your\nRepresentatives shall be destroyed and no copy thereof may be retained (regardless of the form thereof or media on which it may be stored or\nembodied), except that you and your Representatives may retain data or electronic records containing Evaluation Material prepared by you or your\nRepresentatives for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the\nextent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not\naccessed except as required for backup, recovery, contingency planning or business continuity purposes (and if such data or records are restored or\notherwise become accessible, they must be permanently deleted). In the event of such a decision or request such return and destruction shall, upon\nthe Company’s written request, be certified in writing to the Company by an authorized officer supervising such return and destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and other obligations hereunder.\nYou understand and acknowledge that neither the Company nor any of its Representatives, or any of their respective directors, officers,\nstockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives, or any of their respective directors,\nofficers, stockholders, partners, owners, employees, affiliates or agents shall have any liability to you or to any of your Representatives or any other\nperson relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to\nsuch limitations and restrictions as may be specified therein, will have any legal effect.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have been or will be advised) that the Evaluation Material may contain or may itself be material, non-public\ninformation concerning the Company and that the United States and other applicable securities laws prohibit any person in possession of material,\nnon-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof, you\nwill not, directly or indirectly, solicit to employ or hire any of the executive officers of the Company, so long as they are employed by the Company\nor any of its subsidiaries and for a period of six months thereafter, without obtaining the prior written consent of the Company. Notwithstanding the\nforegoing, it shall not be a violation of this letter agreement to conduct general solicitations (including through advertisements and/or search firms)\nnot directly targeted to such prohibited individuals.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 5\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof (unless\na shorter period is specifically contemplated by the provisions of this paragraph) (such period, the “Standstill Period”), unless you shall have been\nspecifically invited in writing by the Company, neither you nor any of your controlled affiliates will in any manner, directly or indirectly: (a) effect\nor seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or encourage any other\nperson to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company, or any rights to acquire any such securities (including derivative securities representing the right to\nvote or economic benefit of any such securities) or assets; (ii) any tender or exchange offer, merger or other business combination involving the\nCompany; (iii) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to the Company; or\n(iv) for a period of nine months from the date hereof, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and\nExchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a “group” (as defined\nunder the 1934 Act) with respect to any securities of the Company, other than in connection with any solicitation of proxies or consents in\naccordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a period of nine months from the date hereof; (c) otherwise\nact, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a\nperiod of nine months from the date hereof; (d) negotiate with or provide any information to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any statement or proposal to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any public announcement or proposal or offer whatsoever with respect to, or act as a\nfinancing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer to effect any transactions or\nactions described, or take any action which might force the Company to make a public announcement regarding any of the types of matters set forth,\nin (a) or (b) above, other than in connection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case\nthe Standstill Period shall be for a period of nine months from the date hereof and in each case except if you have received advice from outside\ncounsel that disclosure must be made in order to comply with any law or regulation; provided that each party to this letter agreement acknowledges\nthat (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as promptly as\npracticable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation Material will be\nmade available to you and that you will be evaluating a potential acquisition of the Company; or (e) enter into any discussions or arrangements with\nany third party (other than your Representatives in accordance with this letter agreement) with respect to any of the foregoing, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a\nperiod of nine\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 6\nmonths from the date hereof. You also agree during the Standstill Period not to request that the Company (or its directors, officers, employees or\nagents), directly or indirectly, amend or waive any provision of this paragraph (including this sentence). Notwithstanding the foregoing, if at any\ntime during the Standstill Period the Company enters into a definitive agreement with any person relating to a merger, consolidation or other sale of\nall or substantially all of the then outstanding voting securities or assets of the Company, if the Company files for bankruptcy or if any person\ncommences (i) a tender offer or exchange offer with respect to securities representing a majority of the voting power of the Company or (ii) a proxy\nsolicitation after nine months from the date hereof in which the person would acquire the ability to elect a member of the Board of Directors of the\nCompany, in each case the provisions of this paragraph shall automatically terminate and be of no further force and effect. Nothing in this paragraph\nshall prohibit you from (x) acquiring any debt securities issued by the Company, (y) acquiring any securities of the Company through an exchange\noffer or through a plan of reorganization for the Company which, in the case of any transaction described in this clause (y), is confirmed by order of\nthe United States Bankruptcy Court, or (z) participating in or consummating any transactions relating to the Company effected in connection with\nany proposed Company auction sale process under the jurisdiction of a United States Bankruptcy Court. For a period of one year from the date of\nthis letter agreement, the Company will not disclose any material non-public information relating to its business to any person who is known by the\nCompany to be considering making, or has made, an Acquisition Proposal (as hereinafter defined) (such person being a “Third Party”), unless such\nThird Party has executed an agreement (a “Third Party Agreement”) with the Company containing standstill provisions which are no less favorable\nin the aggregate to the Company than the standstill provisions contained in the foregoing provisions of this paragraph (the “Standstill”); provided\nthat the Company may enter into a Third Party Agreement containing standstill provisions that are less favorable to the Company in the aggregate\nthan the Standstill if the Company notifies you of the terms of such standstill provisions as soon as reasonably practicable after the execution of such\nThird Party Agreement, in which case the Standstill as it applies to you pursuant to the terms of this letter agreement shall be automatically amended\nto be substantially similar to the standstill provisions contained in such Third Party Agreement. For purposes of this agreement, “Acquisition\nProposal” means a proposal to acquire more than 50% of the outstanding voting securities of the Company or a substantial portion of the assets of\nthe Company and its subsidiaries. You hereby confirm that, except as set forth in any Schedule 13D filing made by you or your affiliates on or prior\nto the date hereof, as of the date hereof you do not have, directly or indirectly, beneficial ownership of equity securities of the Company, rights or\noptions to own or acquire any such securities (through purchase, exchange, conversion or otherwise), or any derivative securities representing the\nright to (i) vote or economic benefit of any such securities. For the avoidance of doubt, the foregoing provisions of this paragraph shall not in any\nway affect your right to vote, tender or dispose of any equity securities of the Company held by you or any of your affiliates as of the date of this\nletter agreement or (ii) acquire any equity securities of the Company upon exercise, conversion or exchange of any derivative securities held by you\nor any of your affiliates as of the date of this letter agreement, in each such case described in clauses (i) and (ii), as set forth in any Schedule 13D\nfiling made by you or your affiliates on or prior to the date hereof, and any such action taken by you or any of your affiliates shall not in any\ncircumstances be deemed to be a breach of this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 7\nEach party understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist\nbetween you and the Company unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and\nuntil a final definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor\nyou will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement\nor any other written or oral expression with respect to such transaction, except for the matters specifically agreed to herein. Each party further\nacknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made by it or any of its\nRepresentatives with regard to a transaction between the Company and you, and to terminate discussions and negotiations between the parties at any\ntime and for any reason or no reason. You further understand that (i) the Company and its Representatives shall be free to conduct any process for\nany transaction involving the Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any\nother interested parties and entering into a preliminary or definitive agreement without prior notice to you or any other person) and (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to you or any other person. Neither this paragraph nor\nany other provision in this letter agreement can be waived or amended except by written consent of each party, which consent shall specifically refer\nto this paragraph (or such provision) and explicitly make such waiver or amendment. For the purposes of this paragraph, the term “definitive\nagreement” shall not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal\nacceptance of any offer or bid.\nYou agree that all (i) contacts or communications by you or your Representatives with the Company or its employees regarding the Evaluation\nMaterial or a potential transaction, (ii) requests for additional Evaluation Material, (iii) requests for facility tours or management meetings, and\n(iv) discussions or questions regarding procedures shall be made only through representatives of Morgan Stanley & Co. Incorporated or as such\nindividuals may otherwise direct in writing.\nIt is understood and agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be\nthe exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or equity.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 8\nThis letter agreement is for the benefit of each party, its Representatives and their respective directors, officers, stockholders, partners, owners,\nemployees, affiliates and agents (provided that, with respect to you, none of your affiliates shall be bound by the terms and conditions of this\nAgreement unless (i) such affiliates are provided Evaluation Material, in which case such affiliates shall be considered a Representative pursuant to\nthis letter agreement, or (ii) such affiliates are expressly contemplated by the provisions hereof to be covered by this letter agreement), and shall be\ngoverned by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof and supersedes any\nother agreement concerning the subject matter hereof, including, without limitation, any “clickthrough” agreement relating to the confidentiality of\nthe Evaluation Material agreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction, and\nno modification of this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by each party.\nFor the convenience of the parties, this letter agreement may be executed by facsimile or PDF transmission and in counterparts, each of which\nshall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nThis letter agreement also constitutes notice to you that the Company has engaged Wilmer, Cutler, Pickering, Hale and Dorr LLP\n(“WilmerHale”) and a committee of independent directors of the Company has engaged Potter Anderson & Corroon LLP (“Potter Anderson”) as\ntheir respective legal counsel in connection with the potential transaction, and you hereby (i) consent to the continued representation of the Company\nby WilmerHale and the continued representation of the committee of independent directors by Potter Anderson in relation to the potential transaction\nnotwithstanding the fact that WilmerHale or Potter Anderson may have represented, or may currently or in the future represent, you and/or any of\nyour affiliates or Representatives with respect to unrelated matters and (ii) waive any actual or alleged conflict that may arise from their\nrepresentation of the Company in connection with the potential transaction. In addition, you hereby acknowledge that your consent and waiver under\nthis paragraph is voluntary and informed, and that you have obtained independent legal advice with respect to this consent and waiver.\nThe Evaluation Material delivered to you or your Representatives by the Company shall remain the property of the Company. No rights to use,\nlicense or otherwise exploit the Evaluation Material are granted to you or your Representatives, by implication or otherwise. Neither you nor your\nRepresentatives will by virtue of disclosure of the Evaluation Material and/or your or your Representatives’ use of the Evaluation Material acquire\nany rights with respect thereto, all of which rights shall remain exclusively with the Company.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 9\nThis letter agreement will terminate 18 months from the date hereof (except to the extent an earlier date is provided herein as to any specified\nobligations); provided, that no such termination of this letter agreement shall relieve any party from any liability relating to any breach of this letter\nagreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 10\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nBJ’s Wholesale, Inc.\nBy: /S/ LON POVICH\nName: Lon Povich\nTitle: Executive Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc., its General Partner\nBy: /S/ JONATHAN A. SEIFFER\nName: Jonathan A. Seiffer\nTitle: Senior Vice President	EX-7.1 2 dex71.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.1\nMarch 21, 2011\nLeonard Green & Partners, L.P.\n11111 Santa Monica Boulevard\nSuite 2000\nLos Angeles, CA 90025\nAttention: Jonathan Seiffer\nGentlemen:\nIn connection with your consideration of a possible negotiated transaction with BJ’s Wholesale, Inc. (collectively with its subsidiaries,\naffiliates and divisions, the “Company”), you have requested, and the Company is prepared to make available to you, certain information concerning\nits business, operations, assets and liabilities. As a condition to such information being furnished, you agree to treat any information concerning the\nCompany (whether prepared by the Company, its advisors or otherwise) which has been or is furnished to you or your directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) (collectively, “Representatives”) by or\non behalf of the Company in connection with your consideration of a possible negotiated transaction with the Company (herein collectively referred\nto as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions\nhereinafter set forth.\nThe term “Evaluation Material” shall be deemed to include all such information furnished to you or any of your Representatives by the\nCompany or any of its Representatives, irrespective of the form of communication (whether provided orally or in writing or provided or stored on\nelectronic or magnetic media, film or any other form or media), and whether such information is so furnished before, on or after the date hereof, or\ninformation which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, and all\nanalyses, compilations, data, forecasts, studies, notes, interpretations, memoranda or other documents prepared by you or your Representatives\ncontaining, reflecting or based in whole or in part on any such information. The term “Evaluation Material” does not include information which (i) at\nthe time of disclosure is generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives;\n(ii) you can establish was within your or any of your Representatives’ possession prior to it being furnished to you or your Representatives by or on\nbehalf of the Company pursuant hereto, provided that such information is not known to you to be subject to another confidentiality agreement with\nor other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information; (iii) becomes\navailable to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not\nknown to you to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or\nany other party with respect to such information; or (iv) you can establish is independently developed by you or your Representatives without\nutilizing in any way any Evaluation Material or violating any of your obligations under this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 2\nYou hereby agree that you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated\ntransaction between the Company and you, that the Evaluation Material will be kept confidential and that you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (ii) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible negotiated transaction with the Company, who agree to keep such information\nconfidential and to use such information solely for the limited purpose described in this clause (ii) and who are provided with a copy of this letter\nagreement and who are instructed to comply with the terms thereof. In any event, you shall be responsible for any breach of this letter agreement by\nany of your Representatives, and you agree, at your sole expense, to take all reasonable measures (including, if necessary, court proceedings) to\nrestrain your Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material. It is understood and agreed that the\nCompany may, in its discretion, from time to time determine that disclosure of certain competitively sensitive Evaluation Material to certain of your\nRepresentatives may be inappropriate, in which case at the Company’s request you shall refrain from disclosing such Evaluation Material to such\nRepresentatives.\nIn addition, both parties agree that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any\nother person the fact that the Evaluation Material has been made available to it, that investigations, discussions or negotiations are taking place\nconcerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof or the identity of the parties thereto), provided that either party may make such disclosure if such party has received advice from its outside\ncounsel that such disclosure must be made in order to comply with any law or regulation and provided further that each party to this letter agreement\nacknowledges that (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as\npromptly as practicable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation\nMaterial will be made available to you and that you will be evaluating a potential acquisition of the Company. Without limiting the generality of the\nforegoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly, enter into any agreement,\narrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with any person regarding a\npossible transaction involving the Company, in each case other than any of your Representatives. The term “person” as used in this letter agreement\nshall be broadly interpreted to include the media and any governmental representative or authority, corporation, company, partnership, joint venture,\ngroup, limited liability company, other entity or individual.\nExcept with respect to the debt financing sources previously identified to and agreed by the Representatives of the Company (each, an\n“Exempt Party™), you agree that neither you nor any of your Representatives will provide the Evaluation Material to, disclose information of the type\ndescribed in the preceding paragraph to, or have any discussions concerning a potential transaction involving the Company with, any potential debt\nor equity financing source without\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 3\nthe written consent of the Company. Whether or not any such consent is granted, you agree that you will not, directly or indirectly, require, instruct\nor encourage any financial institutions or financing sources, including any financial advisor, or any legal or other advisory firms, not to be retained\nby any other person in connection with a potential transaction with the Company and, if requested, you agree to consent to any such retention, and to\nwaive any actual or alleged conflict that may arise from any existing or past relationship with you, in connection with a potential transaction with the\nCompany. With respect to any Exempt Party, or in the event the Company provides such consent with respect to any other potential financing source,\nsuch Exempt Party or other potential financing source shall be considered a Representative for all purposes of this letter agreement. However, if the\nCompany provides such consent with respect to any potential equity financing source, in connection therewith such potential equity financing source\nmay execute and deliver to the Company, prior to the receipt of any Evaluation Material from you, a non-disclosure agreement with the Company in\nform and substance reasonably satisfactory to the Company, in which case you and such potential equity financing source shall each be bound by\nyour respective agreements with the Company and not by the other’s, and neither you nor such potential equity financing source shall be responsible\nor liable for any breach by the other.\nIn the event that you or any of your Representatives are requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material, you shall\nprovide the Company with prompt written notice (to the extent legally permitted) of any such request or requirement and shall consult and cooperate\nwith the Company to the fullest extent permitted by law so that the Company may seek (at its sole cost and expense) a protective order or other\nappropriate remedy (including taking legally available steps to resist or narrow any such request or requirement) and/or waive compliance with the\nprovisions of this letter agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of\nyour Representatives are nonetheless, in the opinion of your respective outside counsel, legally compelled to disclose Evaluation Material to any\ntribunal or other entity, you or your Representatives may, without liability hereunder, disclose to such tribunal or other entity only that portion of the\nEvaluation Material which such counsel advises you or your Representative is legally required to be disclosed, provided that you and your\nRepresentative each exercise your best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating\nwith the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation\nMaterial by such tribunal or other entity.\nIf either party decides that it does not wish to proceed with a transaction with the other party, it will promptly inform the other party of that\ndecision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in no event later than five business\ndays after such request), at your option, deliver to the Company, or destroy, all Evaluation Material (and all copies thereof, regardless of the form or\nmedia on which it may be stored or embodied ) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you\nand your Representatives shall not retain any copies, extracts or other reproductions (regardless of the form thereof or media on which they may be\nstored or embodied) in whole or in part of such material; provided that nothing shall require the alteration,\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 4\nmodification, deletion or destruction of latent data (such as deleted files, and other non-logical data types, such as memory dumps, swap files,\ntemporary files, printer spool files, and metadata) that can only be retrieved by computer forensics experts and is generally considered inaccessible\nwithout the use of specialized tools and techniques. In the event of such a decision or request, all Evaluation Material prepared by you or your\nRepresentatives shall be destroyed and no copy thereof may be retained (regardless of the form thereof or media on which it may be stored or\nembodied), except that you and your Representatives may retain data or electronic records containing Evaluation Material prepared by you or your\nRepresentatives for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the\nextent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not\naccessed except as required for backup, recovery, contingency planning or business continuity purposes (and if such data or records are restored or\notherwise become accessible, they must be permanently deleted). In the event of such a decision or request such return and destruction shall, upon\nthe Company’s written request, be certified in writing to the Company by an authorized officer supervising such return and destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and other obligations hereunder.\nYou understand and acknowledge that neither the Company nor any of its Representatives, or any of their respective directors, officers,\nstockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives, or any of their respective directors,\nofficers, stockholders, partners, owners, employees, affiliates or agents shall have any liability to you or to any of your Representatives or any other\nperson relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to\nsuch limitations and restrictions as may be specified therein, will have any legal effect.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have been or will be advised) that the Evaluation Material may contain or may itself be material, non-public\ninformation concerning the Company and that the United States and other applicable securities laws prohibit any person in possession of material,\nnon-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof, you\nwill not, directly or indirectly, solicit to employ or hire any of the executive officers of the Company, so long as they are employed by the Company\nor any of its subsidiaries and for a period of six months thereafter, without obtaining the prior written consent of the Company. Notwithstanding the\nforegoing, it shall not be a violation of this letter agreement to conduct general solicitations (including through advertisements and/or search firms)\nnot directly targeted to such prohibited individuals.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 5\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof (unless\na shorter period is specifically contemplated by the provisions of this paragraph) (such period, the “Standstill Period”), unless you shall have been\nspecifically invited in writing by the Company, neither you nor any of your controlled affiliates will in any manner, directly or indirectly: (a) effect\nor seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or encourage any other\nperson to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company, or any rights to acquire any such securities (including derivative securities representing the right to\nvote or economic benefit of any such securities) or assets; (ii) any tender or exchange offer, merger or other business combination involving the\nCompany; (iii) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to the Company; or\n(iv) for a period of nine months from the date hereof, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and\nExchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a “group” (as defined\nunder the 1934 Act) with respect to any securities of the Company, other than in connection with any solicitation of proxies or consents in\naccordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a period of nine months from the date hereof; (c) otherwise\nact, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a\nperiod of nine months from the date hereof; (d) negotiate with or provide any information to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any statement or proposal to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any public announcement or proposal or offer whatsoever with respect to, or act as a\nfinancing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer to effect any transactions or\nactions described, or take any action which might force the Company to make a public announcement regarding any of the types of matters set forth,\nin (a) or (b) above, other than in connection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case\nthe Standstill Period shall be for a period of nine months from the date hereof and in each case except if you have received advice from outside\ncounsel that disclosure must be made in order to comply with any law or regulation; provided that each party to this letter agreement acknowledges\nthat (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as promptly as\npracticable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation Material will be\nmade available to you and that you will be evaluating a potential acquisition of the Company; or (e) enter into any discussions or arrangements with\nany third party (other than your Representatives in accordance with this letter agreement) with respect to any of the foregoing, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a\nperiod of nine\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 6\nmonths from the date hereof. You also agree during the Standstill Period not to request that the Company (or its directors, officers, employees or\nagents), directly or indirectly, amend or waive any provision of this paragraph (including this sentence). Notwithstanding the foregoing, if at any\ntime during the Standstill Period the Company enters into a definitive agreement with any person relating to a merger, consolidation or other sale of\nall or substantially all of the then outstanding voting securities or assets of the Company, if the Company files for bankruptcy or if any person\ncommences (i) a tender offer or exchange offer with respect to securities representing a majority of the voting power of the Company or (ii) a proxy\nsolicitation after nine months from the date hereof in which the person would acquire the ability to elect a member of the Board of Directors of the\nCompany, in each case the provisions of this paragraph shall automatically terminate and be of no further force and effect. Nothing in this paragraph\nshall prohibit you from (x) acquiring any debt securities issued by the Company, (y) acquiring any securities of the Company through an exchange\noffer or through a plan of reorganization for the Company which, in the case of any transaction described in this clause (y), is confirmed by order of\nthe United States Bankruptcy Court, or (z) participating in or consummating any transactions relating to the Company effected in connection with\nany proposed Company auction sale process under the jurisdiction of a United States Bankruptcy Court. For a period of one year from the date of\nthis letter agreement, the Company will not disclose any material non-public information relating to its business to any person who is known by the\nCompany to be considering making, or has made, an Acquisition Proposal (as hereinafter defined) (such person being a “Third Party”), unless such\nThird Party has executed an agreement (a “Third Party Agreement”) with the Company containing standstill provisions which are no less favorable\nin the aggregate to the Company than the standstill provisions contained in the foregoing provisions of this paragraph (the “Standstill”); provided\nthat the Company may enter into a Third Party Agreement containing standstill provisions that are less favorable to the Company in the aggregate\nthan the Standstill if the Company notifies you of the terms of such standstill provisions as soon as reasonably practicable after the execution of such\nThird Party Agreement, in which case the Standstill as it applies to you pursuant to the terms of this letter agreement shall be automatically amended\nto be substantially similar to the standstill provisions contained in such Third Party Agreement. For purposes of this agreement, “Acquisition\nProposal” means a proposal to acquire more than 50% of the outstanding voting securities of the Company or a substantial portion of the assets of\nthe Company and its subsidiaries. You hereby confirm that, except as set forth in any Schedule 13D filing made by you or your affiliates on or prior\nto the date hereof, as of the date hereof you do not have, directly or indirectly, beneficial ownership of equity securities of the Company, rights or\noptions to own or acquire any such securities (through purchase, exchange, conversion or otherwise), or any derivative securities representing the\nright to (i) vote or economic benefit of any such securities. For the avoidance of doubt, the foregoing provisions of this paragraph shall not in any\nway affect your right to vote, tender or dispose of any equity securities of the Company held by you or any of your affiliates as of the date of this\nletter agreement or (ii) acquire any equity securities of the Company upon exercise, conversion or exchange of any derivative securities held by you\nor any of your affiliates as of the date of this letter agreement, in each such case described in clauses (i) and (ii), as set forth in any Schedule 13D\nfiling made by you or your affiliates on or prior to the date hereof, and any such action taken by you or any of your affiliates shall not in any\ncircumstances be deemed to be a breach of this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 7\nEach party understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist\nbetween you and the Company unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and\nuntil a final definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor\nyou will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement\nor any other written or oral expression with respect to such transaction, except for the matters specifically agreed to herein. Each party further\nacknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made by it or any of its\nRepresentatives with regard to a transaction between the Company and you, and to terminate discussions and negotiations between the parties at any\ntime and for any reason or no reason. You further understand that (i) the Company and its Representatives shall be free to conduct any process for\nany transaction involving the Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any\nother interested parties and entering into a preliminary or definitive agreement without prior notice to you or any other person) and (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to you or any other person. Neither this paragraph nor\nany other provision in this letter agreement can be waived or amended except by written consent of each party, which consent shall specifically refer\nto this paragraph (or such provision) and explicitly make such waiver or amendment. For the purposes of this paragraph, the term “definitive\nagreement” shall not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal\nacceptance of any offer or bid.\nYou agree that all (i) contacts or communications by you or your Representatives with the Company or its employees regarding the Evaluation\nMaterial or a potential transaction, (ii) requests for additional Evaluation Material, (iii) requests for facility tours or management meetings, and\n(iv) discussions or questions regarding procedures shall be made only through representatives of Morgan Stanley & Co. Incorporated or as such\nindividuals may otherwise direct in writing.\nIt is understood and agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be\nthe exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or equity.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 8\nThis letter agreement is for the benefit of each party, its Representatives and their respective directors, officers, stockholders, partners, owners,\nemployees, affiliates and agents (provided that, with respect to you, none of your affiliates shall be bound by the terms and conditions of this\nAgreement unless (i) such affiliates are provided Evaluation Material, in which case such affiliates shall be considered a Representative pursuant to\nthis letter agreement, or (ii) such affiliates are expressly contemplated by the provisions hereof to be covered by this letter agreement), and shall be\ngoverned by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof and supersedes any\nother agreement concerning the subject matter hereof, including, without limitation, any “clickthrough” agreement relating to the confidentiality of\nthe Evaluation Material agreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction, and\nno modification of this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by each party.\nFor the convenience of the parties, this letter agreement may be executed by facsimile or PDF transmission and in counterparts, each of which\nshall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nThis letter agreement also constitutes notice to you that the Company has engaged Wilmer, Cutler, Pickering, Hale and Dorr LLP\n(“WilmerHale”) and a committee of independent directors of the Company has engaged Potter Anderson & Corroon LLP (“Potter Anderson”) as\ntheir respective legal counsel in connection with the potential transaction, and you hereby (i) consent to the continued representation of the Company\nby WilmerHale and the continued representation of the committee of independent directors by Potter Anderson in relation to the potential transaction\nnotwithstanding the fact that WilmerHale or Potter Anderson may have represented, or may currently or in the future represent, you and/or any of\nyour affiliates or Representatives with respect to unrelated matters and (ii) waive any actual or alleged conflict that may arise from their\nrepresentation of the Company in connection with the potential transaction. In addition, you hereby acknowledge that your consent and waiver under\nthis paragraph is voluntary and informed, and that you have obtained independent legal advice with respect to this consent and waiver.\nThe Evaluation Material delivered to you or your Representatives by the Company shall remain the property of the Company. No rights to use,\nlicense or otherwise exploit the Evaluation Material are granted to you or your Representatives, by implication or otherwise. Neither you nor your\nRepresentatives will by virtue of disclosure of the Evaluation Material and/or your or your Representatives’ use of the Evaluation Material acquire\nany rights with respect thereto, all of which rights shall remain exclusively with the Company.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 9\nThis letter agreement will terminate 18 months from the date hereof (except to the extent an earlier date is provided herein as to any specified\nobligations); provided, that no such termination of this letter agreement shall relieve any party from any liability relating to any breach of this letter\nagreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 10\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nBJ’s Wholesale, Inc.\nBy: /S/ LON POVICH\nName: Lon Povich\nTitle: Executive Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc., its General Partner\nBy: /S/ JONATHAN A. SEIFFER\nName: Jonathan A. Seiffer\nTitle: Senior Vice President	EX-7.1 2 dex71.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.1\nMarch 21, 2011\nLeonard Green & Partners, L.P.\n11111 Santa Monica Boulevard\nSuite 2000\nLos Angeles, CA 90025\nAttention: Jonathan Seiffer\nGentlemen:\nIn connection with your consideration of a possible negotiated transaction with BJ's Wholesale, Inc. (collectively with its subsidiaries,\naffiliates and divisions, the "Company"), you have requested, and the Company is prepared to make available to you, certain information concerning\nits business, operations, assets and liabilities. As a condition to such information being furnished, you agree to treat any information concerning the\nCompany (whether prepared by the Company, its advisors or otherwise) which has been or is furnished to you or your directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) (collectively, "Representatives") by\nor\non behalf of the Company in connection with your consideration of a possible negotiated transaction with the Company (herein collectively referred\nto as the "Evaluation Material") in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions\nhereinafter set forth.\nThe term "Evaluation Material" shall be deemed to include all such information furnished to you or any of your Representatives by the\nCompany or any of its Representatives, irrespective of the form of communication (whether provided orally or in writing or provided or stored\non\nelectronic or magnetic media, film or any other form or media), and whether such information is so furnished before, on or after the date hereof, or\ninformation which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, and all\nanalyses, compilations, data, forecasts, studies, notes, interpretations, memoranda or other documents prepared by you or your Representatives\ncontaining, reflecting or based in whole or in part on any such information. The term "Evaluation Material" does not include information which (i) at\nthe time of disclosure is generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives;\n(ii) you can establish was within your or any of your Representatives' possession prior to it being furnished to you or your Representatives by or on\nbehalf of the Company pursuant hereto, provided that such information is not known to you to be subject to another confidentiality agreement with\nor\nother contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information; (iii) becomes\navailable to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not\nknown to you to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or\nany other party with respect to such information; or (iv) you can establish is independently developed by you or your Representatives without\nutilizing in any way any Evaluation Material or violating any of your obligations under this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 2\nYou hereby agree that you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated\ntransaction between the Company and you, that the Evaluation Material will be kept confidential and that you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (ii) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible negotiated transaction with the Company, who agree to keep such information\nconfidential and to use such information solely for the limited purpose described in this clause (ii) and who are provided with a copy of this letter\nagreement and who are instructed to comply with the terms thereof. In any event, you shall be responsible for any breach of this letter agreement by\nany of your Representatives, and you agree, at your sole expense, to take all reasonable measures (including, if necessary, court proceedings) to\nrestrain your Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material. It is understood and agreed that the\nCompany may, in its discretion, from time to time determine that disclosure of certain competitively sensitive Evaluation Material to certain of\nyour\nRepresentatives may be inappropriate, in which case at the Company's request you shall refrain from disclosing such Evaluation Material to\nsuch\nRepresentatives.\nIn addition, both parties agree that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any\nother person the fact that the Evaluation Material has been made available to it, that investigations, discussions or negotiations are taking place\nconcerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof or the identity of the parties thereto), provided that either party may make such disclosure if such party has received advice from its outside\ncounsel that such disclosure must be made in order to comply with any law or regulation and provided further that each party to this letter agreement\nacknowledges that (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as\npromptly as practicable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation\nMaterial will be made available to you and that you will be evaluating a potential acquisition of the Company. Without limiting the generality of the\nforegoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly, enter into any agreement,\narrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with any person regarding\na\npossible transaction involving the Company, in each case other than any of your Representatives. The term "person" as used in this letter agreement\nshall be broadly interpreted to include the media and any governmental representative or authority, corporation, company, partnership, joint venture,\ngroup, limited liability company, other entity or individual.\nExcept with respect to the debt financing sources previously identified to and agreed by the Representatives of the Company (each, an\n"Exempt Party"), you agree that neither you nor any of your Representatives will provide the Evaluation Material to, disclose information of the type\ndescribed in the preceding paragraph to, or have any discussions concerning a potential transaction involving the Company with, any potential debt\nor equity financing source without\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 3\nthe written consent of the Company. Whether or not any such consent is granted, you agree that you will not, directly or indirectly, require, instruct\nor\nencourage any financial institutions or financing sources, including any financial advisor, or any legal or other advisory firms, not to be retained\nby any other person in connection with a potential transaction with the Company and, if requested, you agree to consent to any such retention, and to\nwaive any actual or alleged conflict that may arise from any existing or past relationship with you, in connection with a potential transaction with the\nCompany. With respect to any Exempt Party, or in the event the Company provides such consent with respect to any other potential financing source,\nsuch Exempt Party or other potential financing source shall be considered a Representative for all purposes of this letter agreement. However, if the\nCompany provides such consent with respect to any potential equity financing source, in connection therewith such potential equity financing source\nmay execute and deliver to the Company, prior to the receipt of any Evaluation Material from you, a non-disclosure agreement with the Company in\nform and substance reasonably satisfactory to the Company, in which case you and such potential equity financing source shall each be bound by\nyour respective agreements with the Company and not by the other's, and neither you nor such potential equity financing source shall be responsible\nor liable for any breach by the other.\nIn the event that you or any of your Representatives are requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material, you shall\nprovide the Company with prompt written notice (to the extent legally permitted) of any such request or requirement and shall consult and cooperate\nwith the Company to the fullest extent permitted by law so that the Company may seek (at its sole cost and expense) a protective order or other\nappropriate remedy (including taking legally available steps to resist or narrow any such request or requirement) and/or waive compliance with the\nprovisions of this letter agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of\nyour Representatives are nonetheless, in the opinion of your respective outside counsel, legally compelled to disclose Evaluation Material to any\ntribunal or other entity, you or your Representatives may, without liability hereunder, disclose to such tribunal or other entity only that portion of\nthe\nEvaluation Material which such counsel advises you or your Representative is legally required to be disclosed, provided that you and your\nRepresentative each exercise your best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating\nwith the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation\nMaterial by such tribunal or other entity.\nIf either party decides that it does not wish to proceed with a transaction with the other party, it will promptly inform the other party of that\ndecision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in no event later than five business\ndays after such request), at your option, deliver to the Company, or destroy, all Evaluation Material (and all copies thereof, regardless of the form\nor\nmedia on which it may be stored or embodied furnished to you or your Representatives by or on behalf of the Company pursuant hereto and\nyou\nand your Representatives shall not retain any copies, extracts or other reproductions (regardless of the form thereof or media on which they may be\nstored or embodied) in whole or in part of such material; provided that nothing shall require the alteration,\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 4\nmodification, deletion or destruction of latent data (such as deleted files, and other non-logical data types, such as memory dumps, swap files,\ntemporary files, printer spool files, and metadata) that can only be retrieved by computer forensics experts and is generally considered inaccessible\nwithout the use of specialized tools and techniques. In the event of such a decision or request, all Evaluation Material prepared by you or your\nRepresentatives shall be destroyed and no copy thereof may be retained (regardless of the form thereof or media on which it may be stored\nor\nembodied), except that you and your Representatives may retain data or electronic records containing Evaluation Material prepared by you or your\nRepresentatives for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the\nextent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not\naccessed except as required for backup, recovery, contingency planning or business continuity purposes (and if such data or records are restored\nor\notherwise become accessible, they must be permanently deleted). In the event of such a decision or request such return and destruction shall, upon\nthe Company's written request, be certified in writing to the Company by an authorized officer supervising such return and destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations\nof\nconfidentiality and other obligations hereunder.\nYou understand and acknowledge that neither the Company nor any of its Representatives, or any of their respective directors, officers,\nstockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives, or any of their respective directors,\nofficers, stockholders, partners, owners, employees, affiliates or agents shall have any liability to you or to any of your Representatives or any other\nperson relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to\nsuch limitations and restrictions as may be specified therein, will have any legal effect.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have been or will be advised) that the Evaluation Material may contain or may itself be material, non-public\ninformation concerning the Company and that the United States and other applicable securities laws prohibit any person in possession of material,\nnon-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such company\nor\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof, you\nwill not, directly or indirectly, solicit to employ or hire any of the executive officers of the Company, so long as they are employed by the Company\nor any of its subsidiaries and for a period of six months thereafter, without obtaining the prior written consent of the Company. Notwithstanding\nthe\nforegoing, it shall not be a violation of this letter agreement to conduct general solicitations (including through advertisements and/or search firms)\nnot directly targeted to such prohibited individuals.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 5\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof (unless\na shorter period is specifically contemplated by the provisions of this paragraph) (such period, the "Standstill Period"), unless you shall have been\nspecifically invited in writing by the Company, neither you nor any of your controlled affiliates will in any manner, directly or indirectly: (a) effect\nor seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or encourage any other\nperson to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company, or any rights to acquire any such securities (including derivative securities representing the right to\nvote or economic benefit of any such securities) or assets; (ii) any tender or exchange offer, merger or other business combination involving the\nCompany; (iii) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to the Company; or\n(iv) for a period of nine months from the date hereof, any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and\nExchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a "group" (as defined\nunder the 1934 Act) with respect to any securities of the Company, other than in connection with any solicitation of proxies or consents in\naccordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a period of nine months from the date hereof; (c) otherwise\nact, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be\nfor\na\nperiod of nine months from the date hereof; (d) negotiate with or provide any information to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any statement or proposal to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any public announcement or proposal or offer whatsoever with respect to, or act\nas\na\nfinancing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer to effect any transactions or\nactions described, or take any action which might force the Company to make a public announcement regarding any of the types of matters set forth,\nin (a) or (b) above, other than in connection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case\nthe Standstill Period shall be for a period of nine months from the date hereof and in each case except if you have received advice from outside\ncounsel that disclosure must be made in order to comply with any law or regulation; provided that each party to this letter agreement acknowledges\nthat (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as promptly as\npracticable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation Material will be\nmade available to you and that you will be evaluating a potential acquisition of the Company; or (e) enter into any discussions or arrangements with\nany third party (other than your Representatives in accordance with this letter agreement) with respect to any of the foregoing, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for\na\nperiod of nine\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 6\nmonths from the date hereof. You also agree during the Standstill Period not to request that the Company (or its directors, officers, employees or\nagents), directly or indirectly, amend or waive any provision of this paragraph (including this sentence). Notwithstanding the foregoing, if at any\ntime during the Standstill Period the Company enters into a definitive agreement with any person relating to a merger, consolidation or other sale of\nall or substantially all of the then outstanding voting securities or assets of the Company, if the Company files for bankruptcy or if any person\ncommences (i) a tender offer or exchange offer with respect to securities representing a majority of the voting power of the Company or (ii) a proxy\nsolicitation after nine months from the date hereof in which the person would acquire the ability to elect a member of the Board of Directors of the\nCompany, in each case the provisions of this paragraph shall automatically terminate and be of no further force and effect. Nothing in this paragraph\nshall prohibit you from (x) acquiring any debt securities issued by the Company, (y) acquiring any securities of the Company through an exchange\noffer or through a plan of reorganization for the Company which, in the case of any transaction described in this clause (y), is confirmed by order of\nthe United States Bankruptcy Court, or (z) participating in or consummating any transactions relating to the Company effected in connection with\nany proposed Company auction sale process under the jurisdiction of a United States Bankruptcy Court. For a period of one year from the date\nof\nthis letter agreement, the Company will not disclose any material non-public information relating to its business to any person who is known by the\nCompany to be considering making, or has made, an Acquisition Proposal (as hereinafter defined) (such person being a "Third Party"), unless such\nThird Party has executed an agreement (a "Third Party Agreement") with the Company containing standstill provisions which are no less favorable\nin the aggregate to the Company than the standstill provisions contained in the foregoing provisions of this paragraph (the "Standstill"); provided\nthat the Company may enter into a Third Party Agreement containing standstill provisions that are less favorable to the Company in the aggregate\nthan the Standstill if the Company notifies you of the terms of such standstill provisions as soon as reasonably practicable after the execution of such\nThird Party Agreement, in which case the Standstill as it applies to you pursuant to the terms of this letter agreement shall be automatically amended\nto be substantially similar to the standstill provisions contained in such Third Party Agreement. For purposes of this agreement, "Acquisition\nProposal" means a proposal to acquire more than 50% of the outstanding voting securities of the Company or a substantial portion of the assets of\nthe Company and its subsidiaries. You hereby confirm that, except as set forth in any Schedule 13D filing made by you or your affiliates on or prior\nto\nthe\ndate hereof, as of the date hereof you do not have, directly or indirectly, beneficial ownership of equity securities of the Company, rights or\noptions to own or acquire any such securities (through purchase, exchange, conversion or otherwise), or any derivative securities representing the\nright to (i) vote or economic benefit of any such securities. For the avoidance of doubt, the foregoing provisions of this paragraph shall not in any\nway affect your right to vote, tender or dispose of any equity securities of the Company held by you or any of your affiliates as of the date of this\nletter agreement or (ii) acquire any equity securities of the Company upon exercise, conversion or exchange of any derivative securities held by you\nor any of your affiliates as of the date of this letter agreement, in each such case described in clauses (i) and (ii), as set forth in any Schedule\n13D\nfiling made by you or your affiliates on or prior to the date hereof, and any such action taken by you or any of your affiliates shall not in any\ncircumstances be deemed to be a breach of this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 7\nEach party understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist\nbetween\nyou and the Company unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and\nyou will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement nor\nuntil a final definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company\nor any other written or oral expression with respect to such transaction, except for the matters specifically agreed to herein. Each party further\nacknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made by it or any of its\nRepresentatives with regard to a transaction between the Company and you, and to terminate discussions and negotiations between the parties at any\ntime and for any reason or no reason. You further understand that (i) the Company and its Representatives shall be free to conduct any process for\nany transaction involving the Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any\nother interested parties and entering into a preliminary or definitive agreement without prior notice to you or any other person) and (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to you or any other person. Neither this paragraph nor\nany other provision in this letter agreement can be waived or amended except by written consent of each party, which consent shall specifically refer\nto this paragraph (or such provision) and explicitly make such waiver or amendment. For the purposes of this paragraph, the term "definitive\nagreement" shall not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal\nacceptance of any offer or bid.\nYou agree that all (i) contacts or communications by you or your Representatives with the Company or its employees regarding the Evaluation\nMaterial or a potential transaction, (ii) requests for additional Evaluation Material, (iii) requests for facility tours or management meetings, and\n(iv) discussions or questions regarding procedures shall be made only through representatives of Morgan Stanley & Co. Incorporated or as such\nindividuals may otherwise direct in writing.\nIt is understood and agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor\nprivilege hereunder.\nYou\nrecognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be\nthe exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or equity.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 8\nThis letter agreement is for the benefit of each party, its Representatives and their respective directors, officers, stockholders, partners, owners,\nemployees, affiliates and agents (provided that, with respect to you, none of your affiliates shall be bound by the terms and conditions of this\nAgreement unless (i) such affiliates are provided Evaluation Material, in which case such affiliates shall be considered a Representative pursuant to\nthis letter agreement, or (ii) such affiliates are expressly contemplated by the provisions hereof to be covered by this letter agreement), and shall be\ngoverned by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof and supersedes any\nother agreement concerning the subject matter hereof, including, without limitation, any "clickthrough" agreement relating to the confidentiality of\nthe Evaluation Material agreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction, and\nno modification of this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by each party.\nFor the convenience of the parties, this letter agreement may be executed by facsimile or PDF transmission and in counterparts, each of which\nshall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nThis letter agreement also constitutes notice to you that the Company has engaged Wilmer, Cutler, Pickering, Hale and Dorr LLP\n("WilmerHale") and a committee of independent directors of the Company has engaged Potter Anderson & Corroon LLP ("Potter Anderson")\nas\ntheir respective legal counsel in connection with the potential transaction, and you hereby (i) consent to the continued representation of the Company\nby WilmerHale and the continued representation of the committee of independent directors by Potter Anderson in relation to the potential transaction\nnotwithstanding the fact that WilmerHale or Potter Anderson may have represented, or may currently or in the future represent, you and/or any of\nyour affiliates or Representatives with respect to unrelated matters and (ii) waive any actual or alleged conflict that may arise from their\nrepresentation of the Company in connection with the potential transaction. In addition, you hereby acknowledge that your consent and waiver under\nthis paragraph is voluntary and informed, and that you have obtained independent legal advice with respect to this consent and waiver.\nThe Evaluation Material delivered to you or your Representatives by the Company shall remain the property of the Company. No rights to use,\nlicense or otherwise exploit the Evaluation Material are granted to you or your Representatives, by implication or otherwise. Neither you nor your\nRepresentatives will by virtue of disclosure of the Evaluation Material and/or your or your Representatives' use of the Evaluation Material acquire\nany rights with respect thereto, all of which rights shall remain exclusively with the Company.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 9\nThis letter agreement will terminate 18 months from the date hereof (except to the extent an earlier date is provided herein as to any specified\nobligations); provided, that no such termination of this letter agreement shall relieve any party from any liability relating to any breach of this letter\nagreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 10\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned,\nwhereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nBJ's Wholesale, Inc.\nBy: /S/ LON POVICH\nName: Lon Povich\nTitle: Executive Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc., its General Partner\nBy: /S/ JONATHAN A. SEIFFER\nName: Jonathan A. Seiffer\nTitle: Senior Vice President	EX-7.1 2 dex71.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.1\nMarch 21, 2011\nLeonard Green & Partners, L.P.\n11111 Santa Monica Boulevard\nSuite 2000\nLos Angeles, CA 90025\nAttention: Jonathan Seiffer\nGentlemen:\nIn connection with your consideration of a possible negotiated transaction with BJ’s Wholesale, Inc. (collectively with its subsidiaries,\naffiliates and divisions, the “Company”), you have requested, and the Company is prepared to make available to you, certain information concerning\nits business, operations, assets and liabilities. As a condition to such information being furnished, you agree to treat any information concerning the\nCompany (whether prepared by the Company, its advisors or otherwise) which has been or is furnished to you or your directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) (collectively, “Representatives”) by or\non behalf of the Company in connection with your consideration of a possible negotiated transaction with the Company (herein collectively referred\nto as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions\nhereinafter set forth.\nThe term “Evaluation Material” shall be deemed to include all such information furnished to you or any of your Representatives by the\nCompany or any of its Representatives, irrespective of the form of communication (whether provided orally or in writing or provided or stored on\nelectronic or magnetic media, film or any other form or media), and whether such information is so furnished before, on or after the date hereof, or\ninformation which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, and all\nanalyses, compilations, data, forecasts, studies, notes, interpretations, memoranda or other documents prepared by you or your Representatives\ncontaining, reflecting or based in whole or in part on any such information. The term “Evaluation Material” does not include information which (i) at\nthe time of disclosure is generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives;\n(ii) you can establish was within your or any of your Representatives’ possession prior to it being furnished to you or your Representatives by or on\nbehalf of the Company pursuant hereto, provided that such information is not known to you to be subject to another confidentiality agreement with\nor other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information; (iii) becomes\navailable to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not\nknown to you to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or\nany other party with respect to such information; or (iv) you can establish is independently developed by you or your Representatives without\nutilizing in any way any Evaluation Material or violating any of your obligations under this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 2\nYou hereby agree that you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated\ntransaction between the Company and you, that the Evaluation Material will be kept confidential and that you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (ii) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible negotiated transaction with the Company, who agree to keep such information\nconfidential and to use such information solely for the limited purpose described in this clause (ii) and who are provided with a copy of this letter\nagreement and who are instructed to comply with the terms thereof. In any event, you shall be responsible for any breach of this letter agreement by\nany of your Representatives, and you agree, at your sole expense, to take all reasonable measures (including, if necessary, court proceedings) to\nrestrain your Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material. It is understood and agreed that the\nCompany may, in its discretion, from time to time determine that disclosure of certain competitively sensitive Evaluation Material to certain of your\nRepresentatives may be inappropriate, in which case at the Company’s request you shall refrain from disclosing such Evaluation Material to such\nRepresentatives.\nIn addition, both parties agree that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any\nother person the fact that the Evaluation Material has been made available to it, that investigations, discussions or negotiations are taking place\nconcerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof or the identity of the parties thereto), provided that either party may make such disclosure if such party has received advice from its outside\ncounsel that such disclosure must be made in order to comply with any law or regulation and provided further that each party to this letter agreement\nacknowledges that (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as\npromptly as practicable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation\nMaterial will be made available to you and that you will be evaluating a potential acquisition of the Company. Without limiting the generality of the\nforegoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly, enter into any agreement,\narrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with any person regarding a\npossible transaction involving the Company, in each case other than any of your Representatives. The term “person” as used in this letter agreement\nshall be broadly interpreted to include the media and any governmental representative or authority, corporation, company, partnership, joint venture,\ngroup, limited liability company, other entity or individual.\nExcept with respect to the debt financing sources previously identified to and agreed by the Representatives of the Company (each, an\n“Exempt Party”), you agree that neither you nor any of your Representatives will provide the Evaluation Material to, disclose information of the type\ndescribed in the preceding paragraph to, or have any discussions concerning a potential transaction involving the Company with, any potential debt\nor equity financing source without\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 3\nthe written consent of the Company. Whether or not any such consent is granted, you agree that you will not, directly or indirectly, require, instruct\nor encourage any financial institutions or financing sources, including any financial advisor, or any legal or other advisory firms, not to be retained\nby any other person in connection with a potential transaction with the Company and, if requested, you agree to consent to any such retention, and to\nwaive any actual or alleged conflict that may arise from any existing or past relationship with you, in connection with a potential transaction with the\nCompany. With respect to any Exempt Party, or in the event the Company provides such consent with respect to any other potential financing source,\nsuch Exempt Party or other potential financing source shall be considered a Representative for all purposes of this letter agreement. However, if the\nCompany provides such consent with respect to any potential equity financing source, in connection therewith such potential equity financing source\nmay execute and deliver to the Company, prior to the receipt of any Evaluation Material from you, a non-disclosure agreement with the Company in\nform and substance reasonably satisfactory to the Company, in which case you and such potential equity financing source shall each be bound by\nyour respective agreements with the Company and not by the other’s, and neither you nor such potential equity financing source shall be responsible\nor liable for any breach by the other.\nIn the event that you or any of your Representatives are requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material, you shall\nprovide the Company with prompt written notice (to the extent legally permitted) of any such request or requirement and shall consult and cooperate\nwith the Company to the fullest extent permitted by law so that the Company may seek (at its sole cost and expense) a protective order or other\nappropriate remedy (including taking legally available steps to resist or narrow any such request or requirement) and/or waive compliance with the\nprovisions of this letter agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of\nyour Representatives are nonetheless, in the opinion of your respective outside counsel, legally compelled to disclose Evaluation Material to any\ntribunal or other entity, you or your Representatives may, without liability hereunder, disclose to such tribunal or other entity only that portion of the\nEvaluation Material which such counsel advises you or your Representative is legally required to be disclosed, provided that you and your\nRepresentative each exercise your best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating\nwith the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation\nMaterial by such tribunal or other entity.\nIf either party decides that it does not wish to proceed with a transaction with the other party, it will promptly inform the other party of that\ndecision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in no event later than five business\ndays after such request), at your option, deliver to the Company, or destroy, all Evaluation Material (and all copies thereof, regardless of the form or\nmedia on which it may be stored or embodied ) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you\nand your Representatives shall not retain any copies, extracts or other reproductions (regardless of the form thereof or media on which they may be\nstored or embodied) in whole or in part of such material; provided that nothing shall require the alteration,\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 4\nmodification, deletion or destruction of latent data (such as deleted files, and other non-logical data types, such as memory dumps, swap files,\ntemporary files, printer spool files, and metadata) that can only be retrieved by computer forensics experts and is generally considered inaccessible\nwithout the use of specialized tools and techniques. In the event of such a decision or request, all Evaluation Material prepared by you or your\nRepresentatives shall be destroyed and no copy thereof may be retained (regardless of the form thereof or media on which it may be stored or\nembodied), except that you and your Representatives may retain data or electronic records containing Evaluation Material prepared by you or your\nRepresentatives for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the\nextent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not\naccessed except as required for backup, recovery, contingency planning or business continuity purposes (and if such data or records are restored or\notherwise become accessible, they must be permanently deleted). In the event of such a decision or request such return and destruction shall, upon\nthe Company’s written request, be certified in writing to the Company by an authorized officer supervising such return and destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and other obligations hereunder.\nYou understand and acknowledge that neither the Company nor any of its Representatives, or any of their respective directors, officers,\nstockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives, or any of their respective directors,\nofficers, stockholders, partners, owners, employees, affiliates or agents shall have any liability to you or to any of your Representatives or any other\nperson relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to\nsuch limitations and restrictions as may be specified therein, will have any legal effect.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have been or will be advised) that the Evaluation Material may contain or may itself be material, non-public\ninformation concerning the Company and that the United States and other applicable securities laws prohibit any person in possession of material,\nnon-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof, you\nwill not, directly or indirectly, solicit to employ or hire any of the executive officers of the Company, so long as they are employed by the Company\nor any of its subsidiaries and for a period of six months thereafter, without obtaining the prior written consent of the Company. Notwithstanding the\nforegoing, it shall not be a violation of this letter agreement to conduct general solicitations (including through advertisements and/or search firms)\nnot directly targeted to such prohibited individuals.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 5\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof (unless\na shorter period is specifically contemplated by the provisions of this paragraph) (such period, the “Standstill Period”), unless you shall have been\nspecifically invited in writing by the Company, neither you nor any of your controlled affiliates will in any manner, directly or indirectly: (a) effect\nor seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or encourage any other\nperson to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company, or any rights to acquire any such securities (including derivative securities representing the right to\nvote or economic benefit of any such securities) or assets; (ii) any tender or exchange offer, merger or other business combination involving the\nCompany; (iii) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to the Company; or\n(iv) for a period of nine months from the date hereof, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and\nExchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a “group” (as defined\nunder the 1934 Act) with respect to any securities of the Company, other than in connection with any solicitation of proxies or consents in\naccordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a period of nine months from the date hereof; (c) otherwise\nact, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a\nperiod of nine months from the date hereof; (d) negotiate with or provide any information to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any statement or proposal to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any public announcement or proposal or offer whatsoever with respect to, or act as a\nfinancing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer to effect any transactions or\nactions described, or take any action which might force the Company to make a public announcement regarding any of the types of matters set forth,\nin (a) or (b) above, other than in connection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case\nthe Standstill Period shall be for a period of nine months from the date hereof and in each case except if you have received advice from outside\ncounsel that disclosure must be made in order to comply with any law or regulation; provided that each party to this letter agreement acknowledges\nthat (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as promptly as\npracticable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation Material will be\nmade available to you and that you will be evaluating a potential acquisition of the Company; or (e) enter into any discussions or arrangements with\nany third party (other than your Representatives in accordance with this letter agreement) with respect to any of the foregoing, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a\nperiod of nine\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 6\nmonths from the date hereof. You also agree during the Standstill Period not to request that the Company (or its directors, officers, employees or\nagents), directly or indirectly, amend or waive any provision of this paragraph (including this sentence). Notwithstanding the foregoing, if at any\ntime during the Standstill Period the Company enters into a definitive agreement with any person relating to a merger, consolidation or other sale of\nall or substantially all of the then outstanding voting securities or assets of the Company, if the Company files for bankruptcy or if any person\ncommences (i) a tender offer or exchange offer with respect to securities representing a majority of the voting power of the Company or (ii) a proxy\nsolicitation after nine months from the date hereof in which the person would acquire the ability to elect a member of the Board of Directors of the\nCompany, in each case the provisions of this paragraph shall automatically terminate and be of no further force and effect. Nothing in this paragraph\nshall prohibit you from (x) acquiring any debt securities issued by the Company, (y) acquiring any securities of the Company through an exchange\noffer or through a plan of reorganization for the Company which, in the case of any transaction described in this clause (y), is confirmed by order of\nthe United States Bankruptcy Court, or (z) participating in or consummating any transactions relating to the Company effected in connection with\nany proposed Company auction sale process under the jurisdiction of a United States Bankruptcy Court. For a period of one year from the date of\nthis letter agreement, the Company will not disclose any material non-public information relating to its business to any person who is known by the\nCompany to be considering making, or has made, an Acquisition Proposal (as hereinafter defined) (such person being a “Third Party”), unless such\nThird Party has executed an agreement (a “Third Party Agreement”) with the Company containing standstill provisions which are no less favorable\nin the aggregate to the Company than the standstill provisions contained in the foregoing provisions of this paragraph (the “Standstill”); provided\nthat the Company may enter into a Third Party Agreement containing standstill provisions that are less favorable to the Company in the aggregate\nthan the Standstill if the Company notifies you of the terms of such standstill provisions as soon as reasonably practicable after the execution of such\nThird Party Agreement, in which case the Standstill as it applies to you pursuant to the terms of this letter agreement shall be automatically amended\nto be substantially similar to the standstill provisions contained in such Third Party Agreement. For purposes of this agreement, “Acquisition\nProposal” means a proposal to acquire more than 50% of the outstanding voting securities of the Company or a substantial portion of the assets of\nthe Company and its subsidiaries. You hereby confirm that, except as set forth in any Schedule 13D filing made by you or your affiliates on or prior\nto the date hereof, as of the date hereof you do not have, directly or indirectly, beneficial ownership of equity securities of the Company, rights or\noptions to own or acquire any such securities (through purchase, exchange, conversion or otherwise), or any derivative securities representing the\nright to (i) vote or economic benefit of any such securities. For the avoidance of doubt, the foregoing provisions of this paragraph shall not in any\nway affect your right to vote, tender or dispose of any equity securities of the Company held by you or any of your affiliates as of the date of this\nletter agreement or (ii) acquire any equity securities of the Company upon exercise, conversion or exchange of any derivative securities held by you\nor any of your affiliates as of the date of this letter agreement, in each such case described in clauses (i) and (ii), as set forth in any Schedule 13D\nfiling made by you or your affiliates on or prior to the date hereof, and any such action taken by you or any of your affiliates shall not in any\ncircumstances be deemed to be a breach of this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 7\nEach party understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist\nbetween you and the Company unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and\nuntil a final definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor\nyou will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement\nor any other written or oral expression with respect to such transaction, except for the matters specifically agreed to herein. Each party further\nacknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made by it or any of its\nRepresentatives with regard to a transaction between the Company and you, and to terminate discussions and negotiations between the parties at any\ntime and for any reason or no reason. You further understand that (i) the Company and its Representatives shall be free to conduct any process for\nany transaction involving the Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any\nother interested parties and entering into a preliminary or definitive agreement without prior notice to you or any other person) and (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to you or any other person. Neither this paragraph nor\nany other provision in this letter agreement can be waived or amended except by written consent of each party, which consent shall specifically refer\nto this paragraph (or such provision) and explicitly make such waiver or amendment. For the purposes of this paragraph, the term “definitive\nagreement” shall not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal\nacceptance of any offer or bid.\nYou agree that all (i) contacts or communications by you or your Representatives with the Company or its employees regarding the Evaluation\nMaterial or a potential transaction, (ii) requests for additional Evaluation Material, (iii) requests for facility tours or management meetings, and\n(iv) discussions or questions regarding procedures shall be made only through representatives of Morgan Stanley & Co. Incorporated or as such\nindividuals may otherwise direct in writing.\nIt is understood and agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be\nthe exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or equity.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 8\nThis letter agreement is for the benefit of each party, its Representatives and their respective directors, officers, stockholders, partners, owners,\nemployees, affiliates and agents (provided that, with respect to you, none of your affiliates shall be bound by the terms and conditions of this\nAgreement unless (i) such affiliates are provided Evaluation Material, in which case such affiliates shall be considered a Representative pursuant to\nthis letter agreement, or (ii) such affiliates are expressly contemplated by the provisions hereof to be covered by this letter agreement), and shall be\ngoverned by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof and supersedes any\nother agreement concerning the subject matter hereof, including, without limitation, any “clickthrough” agreement relating to the confidentiality of\nthe Evaluation Material agreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction, and\nno modification of this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by each party.\nFor the convenience of the parties, this letter agreement may be executed by facsimile or PDF transmission and in counterparts, each of which\nshall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nThis letter agreement also constitutes notice to you that the Company has engaged Wilmer, Cutler, Pickering, Hale and Dorr LLP\n(“WilmerHale”) and a committee of independent directors of the Company has engaged Potter Anderson & Corroon LLP (“Potter Anderson”) as\ntheir respective legal counsel in connection with the potential transaction, and you hereby (i) consent to the continued representation of the Company\nby WilmerHale and the continued representation of the committee of independent directors by Potter Anderson in relation to the potential transaction\nnotwithstanding the fact that WilmerHale or Potter Anderson may have represented, or may currently or in the future represent, you and/or any of\nyour affiliates or Representatives with respect to unrelated matters and (ii) waive any actual or alleged conflict that may arise from their\nrepresentation of the Company in connection with the potential transaction. In addition, you hereby acknowledge that your consent and waiver under\nthis paragraph is voluntary and informed, and that you have obtained independent legal advice with respect to this consent and waiver.\nThe Evaluation Material delivered to you or your Representatives by the Company shall remain the property of the Company. No rights to use,\nlicense or otherwise exploit the Evaluation Material are granted to you or your Representatives, by implication or otherwise. Neither you nor your\nRepresentatives will by virtue of disclosure of the Evaluation Material and/or your or your Representatives’ use of the Evaluation Material acquire\nany rights with respect thereto, all of which rights shall remain exclusively with the Company.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 9\nThis letter agreement will terminate 18 months from the date hereof (except to the extent an earlier date is provided herein as to any specified\nobligations); provided, that no such termination of this letter agreement shall relieve any party from any liability relating to any breach of this letter\nagreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 10\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nBJ’s Wholesale, Inc.\nBy: /S/ LON POVICH\nName: Lon Povich\nTitle: Executive Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc., its General Partner\nBy: /S/ JONATHAN A. SEIFFER\nName: Jonathan A. Seiffer\nTitle: Senior Vice President
f4d4ef76c5ce9b0d5bca8c55369b753c.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 d352811dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nCONFIDENTIAL\nFebruary 1, 2017\nMobileye N.V.\nHar Hotzvim, 13 Hartom Street\nP.O . Box 45157\nJerusalem 9777513, Israel\nAttn: Professor Amnon Shashua, Chairman and Chief Technology Officer\nDear Amnon:\nIn connection with the consideration by Intel Corporation (“Intel”) of a possible transaction involving Intel and Mobileye N.V. (the\n“Company”) or one or more shareholders of the Company (the “Transaction”), each of us may receive certain information relating to the other\nparty and its subsidiaries. The party receiving this information from the other party (the “Receiving Party”) acknowledges that this information\nis proprietary to the party disclosing such information (the “Disclosing Party”) and may include confidential information the disclosure of which\ncould harm the disclosing party and its subsidiaries.\nIn consideration for, and as a condition of, such information being made available to the Receiving Party and its Representatives (as\ndefined below), the Receiving Party agrees to treat, or cause to be treated, any and all information disclosed by the Disclosing Party or any of its\nsubsidiaries to the Receiving Party or its Representatives in connection with the proposed Transaction on or after the date of this letter agreement\n(this “Agreement”) (and regardless of the manner or form in which it is disclosed, including, without limitation, all written, oral and electronic\ncommunications and all information posted in any electronic dataroom), together with any notes, analyses, reports, models, compilations, studies,\ninterpretations, documents or records to the extent such documents contain or are derived from such information, in whole or in part\n(collectively, the “Evaluation Material”), in accordance with the provisions of this Agreement, and to take or abstain from taking the other\nactions hereinafter set forth. For purposes of this Agreement, the term “Evaluation Material” does not include information that (i) becomes\ngenerally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of the terms of this\nAgreement, (ii) is independently developed by the Receiving Party or its Representatives without reference to or use of the Disclosing Party’s\nconfidential information, (iii) was within the Receiving Party’s possession prior to the date of this Agreement or (iv) is received by the Receiving\nParty from a source other than the Disclosing Party or any of its Representatives; provided that, in the case of clause (iii) above, to the extent\nsuch information was provided to the Receiving Party by the Disclosing Party, then the Receiving Party shall be permitted to use such\ninformation in connection with a potential\nTransaction and such information will continue to be subject to any other non-disclosure or confidentiality agreement entered into between the\nparties prior to the date hereof and not in connection with a potential Transaction; provided further that, in the case of clause (iv) above, to the\nknowledge of the Receiving Party, the source of such information was not bound by a confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to the Disclosing Party or any of its subsidiaries with respect to such information. Notwithstanding\nanything to the contrary herein, each party and its Representatives shall be free to use and employ, in any manner and for any purpose, any\nResiduals resulting from their access to or work with Evaluation Material, including, without limitation, in the development, manufacture, sales,\npromotion and maintenance of the products or services of the Receiving Party. “Residuals” means information retained in the unaided memories\nof Representatives of the Receiving Party who have access to the Evaluation Material. The memory of a Representative is considered unaided if\nhe or she did not intentionally memorize the information for the purpose of retaining it and later using it or disclosing it to a third party. Each\nparty reserves all rights, subject to the terms and conditions of this Agreement, (a) to design, develop, manufacture, market, and distribute\nproducts and services that contain similar features or functionality to, or that compete with, products or services of the other party or its\nsubsidiaries; and (b) to enter into agreements with third parties who design, develop, manufacture, market, or distribute products or services that\ncontain similar features or functionality to, or that compete with, products or services of the other party and its subsidiaries. The provisions of\nthis Agreement will not restrict the free movement, or assignment to different tasks and activities, of Representatives of the receiving party\nthroughout his or her organization.\nFor purposes of this Agreement, the term “Representative” with respect to Intel shall mean Intel and its subsidiaries’ (i) directors, officers\nand employees and (ii) agents, representatives and advisors, which may include attorneys, accountants, consultants, potential financing sources\nand representatives of such advisors. For purposes of this Agreement, the term “Representative” with respect to the Company shall mean the\nCompany and its subsidiaries’ (i) directors, officers and employees and (ii) agents, representatives and advisors, which may include attorneys,\naccountants, consultants and representatives of such advisors. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any corporation, partnership, company, limited liability company, trust, association, joint venture, government or self-\nregulatory agency or body, group (as such term is used in Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”)), individual or other entity. For purposes of this Agreement, the term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2\nunder the Exchange Act.\n1. The Receiving Party hereby agrees that the Receiving Party and its Representatives will (i) keep the Evaluation Material\nconfidential and (ii) not disclose any of the Evaluation Material without the prior written consent of the Disclosing Party; provided, however, that\nthe Receiving Party may disclose Evaluation Material only to its Representatives (a) who have a reasonable need to know particular Evaluation\nMaterial for the purpose of considering, pursuing and/or facilitating a Transaction, (b) who are informed by the Receiving Party in advance of the\nconfidential nature of such information and (c) who agree to act in\naccordance with the terms of this Agreement to the same extent as if they were parties hereto, for the benefit of the Disclosing Party. The\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives and the Receiving Party agrees to take\ncommercially reasonable measures to restrain its Representatives from disclosure or improper use of the Evaluation Material or from breaching\nany other provision of this Agreement.\n2. Each party agrees, unless otherwise required by law or regulation, without the prior written consent of the other party, not to\ndisclose, directly or indirectly, to any person other than its Representatives that (i) the parties have entered into this Agreement, (ii) the\nEvaluation Material exists or has been made available by the Disclosing Party to the Receiving Party and its Representatives and (iii) discussions\nor negotiations are taking or have taken place concerning the Transaction between Intel and the Company concerning the Transaction or any of\nthe terms, conditions or other facts with respect thereto (including the status thereof).\n3. Each party will submit all: (i) communications regarding a Transaction, (ii) requests for additional information in connection\nwith a Transaction; (iii) requests for facility tours or management meetings in connection with a Transaction; and (iv) questions regarding\nprocedures in connection with a Transaction, only to persons specifically designated by the other party for that purpose.\n4. In the event that the Receiving Party or any of its Representatives is required by applicable law, regulation, stock exchange\nrequirement, subpoena or legal process (including oral questions, civil investigative demand, subpoena, request for information or documents, or\nother similar process or filing with the Securities and Exchange Commission or regulatory body) to disclose any of the Evaluation Material or\ninformation described in paragraph 2 of this Agreement other than as expressly permitted under the terms of this Agreement, the Receiving Party\nwill, to the extent reasonably practicable and as far in advance as is reasonably practicable, promptly notify the Disclosing Party of the\ninformation to be disclosed so that the Disclosing Party may, at its election and expense, seek a protective order or other appropriate remedy. In\nno event shall the Receiving Party, or any of its Representatives, disclose any Evaluation Material other than that portion of the Evaluation\nMaterial that the Receiving Party’s legal counsel advises the Receiving Party is legally required to be disclosed or oppose an action by the\nDisclosing Party to obtain a protective order, motion to quash and/or other relief to prevent the production or disclosure of the Evaluation\nMaterial or to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded the information so\ndisclosed.\n5. At any time upon the request of the Disclosing Party for any reason, the Receiving Party will, at the option of the Receiving\nParty, promptly (i) destroy all copies (which shall include to the extent practical erasing or deleting all electronic copies) of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives or (ii) deliver to the Disclosing Party at the expense of the\nReceiving Party all hard copies of the Evaluation Material and, to the extent practical, erase or delete all electronic copies of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives. In addition, if\nrequested in writing by the Disclosing Party, the Receiving Party agrees to have an officer certify in writing to the Disclosing Party that the\nReceiving Party has complied with its obligations under this paragraph. Notwithstanding the return or destruction (as applicable) of the\nEvaluation Material, the Receiving Party and its Representatives will continue to be bound by its confidentiality and non-disclosure obligations\npursuant to the terms of this Agreement. Notwithstanding anything herein, (i) a Receiving Party may retain a copy of the Evaluation Material\ndisclosed to it for legal archival purposes to evidence such party’s compliance with the terms of this Agreement, (ii) any of such Receiving\nParty’s Representatives that are financial institutions may retain for compliance purposes only a copy of the Evaluation Material so required by\napplicable law or other policies of self-regulatory organizations and (iii) such Receiving Party’s counsels may retain a copy of the Evaluation\nMaterial that reflects the advice of counsel or may otherwise contain attorney client privileged materials for legal archival purposes.\n6. The Receiving Party understands and acknowledges that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy, timeliness or completeness of the Evaluation Material. The Receiving Party\nagrees that neither the Disclosing Party nor any of its Representatives shall have any liability (including, without limitation, in contract, tort,\nunder federal or state securities laws or otherwise) to the Receiving Party or to any of its Representatives relating to or resulting from the use or\nnon-use of the Evaluation Material or any errors therein or omissions therefrom, regardless of any decision made in reliance on the Evaluation\nMaterial, and neither the Receiving Party nor its Representatives will make any claims whatsoever against such persons, with respect to, or\narising out of, the Evaluation Material. Notwithstanding the above, those representations or warranties that are made in a Definitive Agreement\n(as defined below) regarding a negotiated Transaction between the parties, when, as and if executed, and subject to such limitations and\nrestrictions as may be specified therein, will have legal effect. The term “Definitive Agreement” means a written contract executed and\ndelivered by all parties thereto for the Transaction, which contract binds the parties thereto to close such Transaction, subject only to such\nconditions to closing as may be negotiated between the parties thereto, and does not include an executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or oral acceptance of an offer or bid for the Transaction. Notwithstanding anything to the\ncontrary contained in this Section 6 or elsewhere in this Agreement, nothing in this Agreement will operate to limit any remedy the Receiving\nParty or any of its Representatives may have for fraud committed by the Disclosing Party or any of its Representatives (whether or not such fraud\nrelates to a representation made in a written agreement between the parties).\n7. Each party understands and agrees that no contract or agreement providing for the Transaction shall be deemed to exist between\nthem unless and until a Definitive Agreement has been executed and delivered between them. Each party also agrees that unless and until a\nDefinitive Agreement has been executed and delivered between them, neither party shall be under any legal obligation of any kind whatsoever\nwith respect to the Transaction by virtue of this Agreement, except for the matters specifically agreed to herein and in the related Exclusivity\nAgreement between the parties dated of the date hereof. Each party further\nacknowledges and agrees that the other party may at any time, in its sole discretion, for any reason or no reason, without prior notice to the other\nparty, reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction, terminate discussions and\nnegotiations with the other party and its Representatives or refuse to provide any further access to the Evaluation Materials.\n8. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material,\nnonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information. Each party hereby represents\nthat, as of the date hereof, it and its controlled affiliates do not, directly or indirectly, (i) own of record or beneficially any securities of the other\nparty or (ii) possess or have the right to possess (whether upon the occurrence of an event, lapse of time or otherwise) any economic interest,\nvoting right or other right with respect to any security of the other party or any of its affiliates, including Derivative Securities.\n9. To the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, inquiry, arbitration or dispute, each party acknowledges that the parties have a commonality of interest with respect to\nsuch action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agree that it is the parties’ mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder\nand shall be entitled to protection under the joint defense doctrine, and each party agrees to take all reasonable measures necessary to preserve, to\nthe fullest extent possible, the applicability of all such privileges and doctrines.\n10. This Agreement contains the entire agreement between Intel and the Company concerning the subject matter of this Agreement,\nand no provision of this Agreement may be waived or amended, except by the written consent of the parties, which consent shall explicitly\nreference such waiver or amendment. Any attempted waiver or amendment in violation of this provision shall be void ab initio. Notwithstanding\nthe foregoing, this Agreement shall not supersede any other non-disclosure agreement or confidentiality agreement entered into between the\nparties prior to the date hereof and not in connection with a potential Transaction.\n11. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any\nother right, power or privilege.\n12. Each party acknowledge that money damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement by the other party or any of its Representatives and each party shall be entitled to seek injunctive relief without proof of actual\ndamages or posting of a bond as a remedy for any such breach or threatened breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach or threatened breach by a party or any of its Representatives of this Agreement but may be in addition to all other remedies\navailable at law or equity to the other party. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in\nan order that a party or any of its Representatives has breached or threatened to breach this Agreement, then such party will reimburse the other\nparty for the reasonable legal fees and expenses incurred by the other party in connection with enforcing its rights hereunder, including any\nappeal therefrom.\n13. This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by and construed\nin accordance with the internal laws of the State of New York, without reference to its conflicts of law principles.\n14. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the United States District\nCourt for the Southern District of New York or any New York State court sitting in the Borough of Manhattan, New York City for any actions,\nsuits or proceedings arising out of or relating to this Agreement and agree (i) not to commence any action, suit or proceeding relating thereto\nexcept in such courts, (ii) to waive and not to assert any defenses as to personal jurisdiction of such courts over such party and (iii) that service of\nany process, summons, notice or document by U.S. registered mail to the address set forth above shall be effective service of process for any\naction, suit or proceeding brought against a party in such courts.\n15. The provisions of this Agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n17. This Agreement shall inure solely to the benefit of and be binding upon each of the parties hereto and their respective\nsuccessors and permitted assigns; provided that neither party may assign this Agreement or any of its rights and obligations hereunder without\nthe prior written consent of the other party. Any attempted assignment by a party without the other party’s prior written consent will be of no\nforce and effect.\n18. Except as expressly set forth herein, each of the parties shall be responsible for its own costs and expenses associated with the\nsubject matter of this Agreement, whether or not a Transaction is consummated.\n19. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement\nexcept for the right to review the Evaluation Material for purposes of considering, pursuing and/or facilitating a Transaction pursuant to\nparagraph 1 hereof. Neither party is obligated under this Agreement to purchase from or provide to the other party any service or product.\n20. This Agreement and all obligations hereunder shall terminate and cease to be of any further force or effect as of the second\n(2nd) anniversary of the date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between Intel and the Company.\nVery truly yours,\nINTEL CORPORATION\nBy: /s/ Wendell M. Brooks\nName: Wendell M. Brooks\nTitle: Senior Vice President and\nPresident Intel Capital\nAccepted: February 1, 2017\nMOBILEYE N.V.\nBy: /s/ Ziv Aviram\nName: Ziv Aviram\nTitle: CEO and President\nBy: /s/ Prof. Amnon Shashva\nName: Prof. Amnon Shashva\nTitle: CTO and Chairman\n[Signature Page to Letter Agreement]	EX-99.(D)(2) 9 d352811dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nCONFIDENTIAL\nFebruary 1, 2017\nMobileye N.V.\nHar Hotzvim, 13 Hartom Street\nP.O. Box 45157\nJerusalem 9777513, Israel\nAttn: Professor Amnon Shashua, Chairman and Chief Technology Officer\nDear Amnon:\nIn connection with the consideration by Intel Corporation (“Intel”) of a possible transaction involving Intel and Mobileye N.V. (the\n“Company”) or one or more shareholders of the Company (the “Transaction”), each of us may receive certain information relating to the other\nparty and its subsidiaries. The party receiving this information from the other party (the “Receiving Party”) acknowledges that this information\nis proprietary to the party disclosing such information (the “Disclosing Party”) and may include confidential information the disclosure of which\ncould harm the disclosing party and its subsidiaries.\nIn consideration for, and as a condition of, such information being made available to the Receiving Party and its Representatives (as\ndefined below), the Receiving Party agrees to treat, or cause to be treated, any and all information disclosed by the Disclosing Party or any of its\nsubsidiaries to the Receiving Party or its Representatives in connection with the proposed Transaction on or after the date of this letter agreement\n(this “Agreement”) (and regardless of the manner or form in which it is disclosed, including, without limitation, all written, oral and electronic\ncommunications and all information posted in any electronic dataroom), together with any notes, analyses, reports, models, compilations, studies,\ninterpretations, documents or records to the extent such documents contain or are derived from such information, in whole or in part\n(collectively, the “Evaluation Material”), in accordance with the provisions of this Agreement, and to take or abstain from taking the other\nactions hereinafter set forth. For purposes of this Agreement, the term “Evaluation Material” does not include information that (i) becomes\ngenerally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of the terms of this\nAgreement, (ii) is independently developed by the Receiving Party or its Representatives without reference to or use of the Disclosing Party’s\nconfidential information, (iii) was within the Receiving Party’s possession prior to the date of this Agreement or (iv) is received by the Receiving\nParty from a source other than the Disclosing Party or any of its Representatives; provided that, in the case of clause (iii) above, to the extent\nsuch information was provided to the Receiving Party by the Disclosing Party, then the Receiving Party shall be permitted to use such\ninformation in connection with a potential\nTransaction and such information will continue to be subject to any other non-disclosure or confidentiality agreement entered into between the\nparties prior to the date hereof and not in connection with a potential Transaction; provided further that, in the case of clause (iv) above, to the\nknowledge of the Receiving Party, the source of such information was not bound by a confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to the Disclosing Party or any of its subsidiaries with respect to such information. Notwithstanding\nanything to the contrary herein, each party and its Representatives shall be free to use and employ, in any manner and for any purpose, any\nResiduals resulting from their access to or work with Evaluation Material, including, without limitation, in the development, manufacture, sales,\npromotion and maintenance of the products or services of the Receiving Party. “Residuals” means information retained in the unaided memories\nof Representatives of the Receiving Party who have access to the Evaluation Material. The memory of a Representative is considered unaided if\nhe or she did not intentionally memorize the information for the purpose of retaining it and later using it or disclosing it to a third party. Each\nparty reserves all rights, subject to the terms and conditions of this Agreement, (a) to design, develop, manufacture, market, and distribute\nproducts and services that contain similar features or functionality to, or that compete with, products or services of the other party or its\nsubsidiaries; and (b) to enter into agreements with third parties who design, develop, manufacture, market, or distribute products or services that\ncontain similar features or functionality to, or that compete with, products or services of the other party and its subsidiaries. The provisions of\nthis Agreement will not restrict the free movement, or assignment to different tasks and activities, of Representatives of the receiving party\nthroughout his or her organization.\nFor purposes of this Agreement, the term “Representative” with respect to Intel shall mean Intel and its subsidiaries’ (i) directors, officers\nand employees and (ii) agents, representatives and advisors, which may include attorneys, accountants, consultants, potential financing sources\nand representatives of such advisors. For purposes of this Agreement, the term “Representative” with respect to the Company shall mean the\nCompany and its subsidiaries’ (i) directors, officers and employees and (ii) agents, representatives and advisors, which may include attorneys,\naccountants, consultants and representatives of such advisors. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any corporation, partnership, company, limited liability company, trust, association, joint venture, government or self-\nregulatory agency or body, group (as such term is used in Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”)), individual or other entity. For purposes of this Agreement, the term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2\nunder the Exchange Act.\n1. The Receiving Party hereby agrees that the Receiving Party and its Representatives will (i) keep the Evaluation Material\nconfidential and (ii) not disclose any of the Evaluation Material without the prior written consent of the Disclosing Party; provided, however, that\nthe Receiving Party may disclose Evaluation Material only to its Representatives (a) who have a reasonable need to know particular Evaluation\nMaterial for the purpose of considering, pursuing and/or facilitating a Transaction, (b) who are informed by the Receiving Party in advance of the\nconfidential nature of such information and (c) who agree to act in\naccordance with the terms of this Agreement to the same extent as if they were parties hereto, for the benefit of the Disclosing Party. The\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives and the Receiving Party agrees to take\ncommercially reasonable measures to restrain its Representatives from disclosure or improper use of the Evaluation Material or from breaching\nany other provision of this Agreement.\n2. Each party agrees, unless otherwise required by law or regulation, without the prior written consent of the other party, not to\ndisclose, directly or indirectly, to any person other than its Representatives that (i) the parties have entered into this Agreement, (ii) the\nEvaluation Material exists or has been made available by the Disclosing Party to the Receiving Party and its Representatives and (iii) discussions\nor negotiations are taking or have taken place concerning the Transaction between Intel and the Company concerning the Transaction or any of\nthe terms, conditions or other facts with respect thereto (including the status thereof).\n3. Each party will submit all: (i) communications regarding a Transaction, (ii) requests for additional information in connection\nwith a Transaction; (iii) requests for facility tours or management meetings in connection with a Transaction; and (iv) questions regarding\nprocedures in connection with a Transaction, only to persons specifically designated by the other party for that purpose.\n4. In the event that the Receiving Party or any of its Representatives is required by applicable law, regulation, stock exchange\nrequirement, subpoena or legal process (including oral questions, civil investigative demand, subpoena, request for information or documents, or\nother similar process or filing with the Securities and Exchange Commission or regulatory body) to disclose any of the Evaluation Material or\ninformation described in paragraph 2 of this Agreement other than as expressly permitted under the terms of this Agreement, the Receiving Party\nwill, to the extent reasonably practicable and as far in advance as is reasonably practicable, promptly notify the Disclosing Party of the\ninformation to be disclosed so that the Disclosing Party may, at its election and expense, seek a protective order or other appropriate remedy. In\nno event shall the Receiving Party, or any of its Representatives, disclose any Evaluation Material other than that portion of the Evaluation\nMaterial that the Receiving Party’s legal counsel advises the Receiving Party is legally required to be disclosed or oppose an action by the\nDisclosing Party to obtain a protective order, motion to quash and/or other relief to prevent the production or disclosure of the Evaluation\nMaterial or to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded the information so\ndisclosed.\n5. At any time upon the request of the Disclosing Party for any reason, the Receiving Party will, at the option of the Receiving\nParty, promptly (i) destroy all copies (which shall include to the extent practical erasing or deleting all electronic copies) of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives or (ii) deliver to the Disclosing Party at the expense of the\nReceiving Party all hard copies of the Evaluation Material and, to the extent practical, erase or delete all electronic copies of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives. In addition, if\nrequested in writing by the Disclosing Party, the Receiving Party agrees to have an officer certify in writing to the Disclosing Party that the\nReceiving Party has complied with its obligations under this paragraph. Notwithstanding the return or destruction (as applicable) of the\nEvaluation Material, the Receiving Party and its Representatives will continue to be bound by its confidentiality and non-disclosure obligations\npursuant to the terms of this Agreement. Notwithstanding anything herein, (i) a Receiving Party may retain a copy of the Evaluation Material\ndisclosed to it for legal archival purposes to evidence such party’s compliance with the terms of this Agreement, (ii) any of such Receiving\nParty’s Representatives that are financial institutions may retain for compliance purposes only a copy of the Evaluation Material so required by\napplicable law or other policies of self-regulatory organizations and (iii) such Receiving Party’s counsels may retain a copy of the Evaluation\nMaterial that reflects the advice of counsel or may otherwise contain attorney client privileged materials for legal archival purposes.\n6. The Receiving Party understands and acknowledges that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy, timeliness or completeness of the Evaluation Material. The Receiving Party\nagrees that neither the Disclosing Party nor any of its Representatives shall have any liability (including, without limitation, in contract, tort,\nunder federal or state securities laws or otherwise) to the Receiving Party or to any of its Representatives relating to or resulting from the use or\nnon-use of the Evaluation Material or any errors therein or omissions therefrom, regardless of any decision made in reliance on the Evaluation\nMaterial, and neither the Receiving Party nor its Representatives will make any claims whatsoever against such persons, with respect to, or\narising out of, the Evaluation Material. Notwithstanding the above, those representations or warranties that are made in a Definitive Agreement\n(as defined below) regarding a negotiated Transaction between the parties, when, as and if executed, and subject to such limitations and\nrestrictions as may be specified therein, will have legal effect. The term “Definitive Agreement” means a written contract executed and\ndelivered by all parties thereto for the Transaction, which contract binds the parties thereto to close such Transaction, subject only to such\nconditions to closing as may be negotiated between the parties thereto, and does not include an executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or oral acceptance of an offer or bid for the Transaction. Notwithstanding anything to the\ncontrary contained in this Section 6 or elsewhere in this Agreement, nothing in this Agreement will operate to limit any remedy the Receiving\nParty or any of its Representatives may have for fraud committed by the Disclosing Party or any of its Representatives (whether or not such fraud\nrelates to a representation made in a written agreement between the parties).\n7. Each party understands and agrees that no contract or agreement providing for the Transaction shall be deemed to exist between\nthem unless and until a Definitive Agreement has been executed and delivered between them. Each party also agrees that unless and until a\nDefinitive Agreement has been executed and delivered between them, neither party shall be under any legal obligation of any kind whatsoever\nwith respect to the Transaction by virtue of this Agreement, except for the matters specifically agreed to herein and in the related Exclusivity\nAgreement between the parties dated of the date hereof. Each party further\nacknowledges and agrees that the other party may at any time, in its sole discretion, for any reason or no reason, without prior notice to the other\nparty, reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction, terminate discussions and\nnegotiations with the other party and its Representatives or refuse to provide any further access to the Evaluation Materials.\n8. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material,\nnonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information. Each party hereby represents\nthat, as of the date hereof, it and its controlled affiliates do not, directly or indirectly, (i) own of record or beneficially any securities of the other\nparty or (ii) possess or have the right to possess (whether upon the occurrence of an event, lapse of time or otherwise) any economic interest,\nvoting right or other right with respect to any security of the other party or any of its affiliates, including Derivative Securities.\n9. To the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, inquiry, arbitration or dispute, each party acknowledges that the parties have a commonality of interest with respect to\nsuch action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agree that it is the parties’ mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder\nand shall be entitled to protection under the joint defense doctrine, and each party agrees to take all reasonable measures necessary to preserve, to\nthe fullest extent possible, the applicability of all such privileges and doctrines.\n10. This Agreement contains the entire agreement between Intel and the Company concerning the subject matter of this Agreement,\nand no provision of this Agreement may be waived or amended, except by the written consent of the parties, which consent shall explicitly\nreference such waiver or amendment. Any attempted waiver or amendment in violation of this provision shall be void ab initio. Notwithstanding\nthe foregoing, this Agreement shall not supersede any other non-disclosure agreement or confidentiality agreement entered into between the\nparties prior to the date hereof and not in connection with a potential Transaction.\n11. Itis understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any\nother right, power or privilege.\n12.  Each party acknowledge that money damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement by the other party or any of its Representatives and each party shall be entitled to seek injunctive relief without proof of actual\ndamages or posting of a bond as a remedy for any such breach or threatened breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach or threatened breach by a party or any of its Representatives of this Agreement but may be in addition to all other remedies\navailable at law or equity to the other party. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in\nan order that a party or any of its Representatives has breached or threatened to breach this Agreement, then such party will reimburse the other\nparty for the reasonable legal fees and expenses incurred by the other party in connection with enforcing its rights hereunder, including any\nappeal therefrom.\n13. This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by and construed\nin accordance with the internal laws of the State of New York, without reference to its conflicts of law principles.\n14. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the United States District\nCourt for the Southern District of New York or any New York State court sitting in the Borough of Manhattan, New York City for any actions,\nsuits or proceedings arising out of or relating to this Agreement and agree (i) not to commence any action, suit or proceeding relating thereto\nexcept in such courts, (ii) to waive and not to assert any defenses as to personal jurisdiction of such courts over such party and (iii) that service of\nany process, summons, notice or document by U.S. registered mail to the address set forth above shall be effective service of process for any\naction, suit or proceeding brought against a party in such courts.\n15. The provisions of this Agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n17.  This Agreement shall inure solely to the benefit of and be binding upon each of the parties hereto and their respective\nsuccessors and permitted assigns; provided that neither party may assign this Agreement or any of its rights and obligations hereunder without\nthe prior written consent of the other party. Any attempted assignment by a party without the other party’s prior written consent will be of no\nforce and effect.\n18. Except as expressly set forth herein, each of the parties shall be responsible for its own costs and expenses associated with the\nsubject matter of this Agreement, whether or not a Transaction is consummated.\n19. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement\nexcept for the right to review the Evaluation Material for purposes of considering, pursuing and/or facilitating a Transaction pursuant to\nparagraph 1 hereof. Neither party is obligated under this Agreement to purchase from or provide to the other party any service or product.\n20. This Agreement and all obligations hereunder shall terminate and cease to be of any further force or effect as of the second\n(2nd) anniversary of the date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between Intel and the Company. Accepted: February 1, 2017\nMOBILEYE N.V.\nBy: /s/ Ziv Aviram\nVery truly yours,\nINTEL CORPORATION\nBy: /s/ Wendell M. Brooks\nName: Wendell M. Brooks\nTitle: Senior Vice President and\nPresident Intel Capital\nName: Ziv Aviram Title: CEO and President\nBy: /s/ Prof. Amnon Shashva\nName: Prof. Amnon Shashva Title: CTO and Chairman\n[Signature Page to Letter Agreement]	EX-99.(D)(2) 9 d352811dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nCONFIDENTIAL\nFebruary 1, 2017\nMobileye N.V.\nHar Hotzvim, 13 Hartom Street\nP.O. Box 45157\nJerusalem 9777513, Israel\nAttn: Professor Amnon Shashua, Chairman and Chief Technology Officer\nDear Amnon:\nIn connection with the consideration by Intel Corporation ("Intel") of a possible transaction involving Intel and Mobileye N.V. (the\n"Company") or one or more shareholders of the Company (the "Transaction"), each of us may receive certain information relating to the other\nparty and its subsidiaries. The party receiving this information from the other party (the "Receiving Party") acknowledges that this information\nis proprietary to the party disclosing such information (the "Disclosing Party") and may include confidential information the disclosure of which\ncould harm the disclosing party and its subsidiaries.\nIn consideration for, and as a condition of, such information being made available to the Receiving Party and its Representatives (as\ndefined below), the Receiving Party agrees to treat, or cause to be treated, any and all information disclosed by the Disclosing Party or any of its\nsubsidiaries to the Receiving Party or its Representatives in connection with the proposed Transaction on or after the date of this letter agreement\n(this "Agreement") (and regardless of the manner or form in which it is disclosed, including, without limitation, all written, oral and electronic\ncommunications and all information posted in any electronic dataroom), together with any notes, analyses, reports, models, compilations, studies,\ninterpretations, documents or records to the extent such documents contain or are derived from such information, in whole or in part\n(collectively, the "Evaluation Material"), in accordance with the provisions of this Agreement, and to take or abstain from taking the other\nactions hereinafter set forth. For purposes of this Agreement, the term "Evaluation Material" does not include information that (i) becomes\ngenerally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of the terms of\nthis\nAgreement, (ii) is independently developed by the Receiving Party or its Representatives without reference to or use of the Disclosing Party's\nconfidential information, (iii) was within the Receiving Party's possession prior to the date of this Agreement or (iv) is received\nby\nthe\nReceiving\nParty from a source other than the Disclosing Party or any of its Representatives; provided that, in the case of clause (iii) above, to the extent\nsuch information was provided to the Receiving Party by the Disclosing Party, then the Receiving Party shall be permitted to use such\ninformation in connection with a potential\nTransaction and such information will continue to be subject to any other non-disclosure or confidentiality agreement entered into between\nthe\nparties prior to the date hereof and not in connection with a potential Transaction provided further that, in the case of clause (iv) above, to the\nknowledge of the Receiving Party, the source of such information was not bound by a confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to the Disclosing Party or any of its subsidiaries with respect to such information. Notwithstanding\nanything to the contrary herein, each party and its Representatives shall be free to use and employ, in any manner and for any purpose, any\nResiduals resulting from their access to or work with Evaluation Material, including, without limitation, in the development, manufacture, sales,\npromotion and maintenance of the products or services of the Receiving Party. "Residuals" means information retained in the unaided memories\nof Representatives of the Receiving Party who have access to the Evaluation Material. The memory of a Representative is considered unaided if\nhe or she did not intentionally memorize the information for the purpose of retaining it and later using it or disclosing it to a third party. Each\nparty reserves all rights, subject to the terms and conditions of this Agreement, (a) to design, develop, manufacture, market, and distribute\nproducts and services that contain similar features or functionality to, or that compete with, products or services of the other party or its\nsubsidiaries; and (b) to enter into agreements with third parties who design, develop, manufacture, market, or distribute products or services\nthat\ncontain similar features or functionality to, or that compete with, products or services of the other party and its subsidiaries. The provisions of\nthis Agreement will not restrict the free movement, or assignment to different tasks and activities, of Representatives of the receiving party\nthroughout his or her organization.\nFor purposes of this Agreement, the term "Representative" with respect to Intel shall mean Intel and its subsidiaries' (i) directors, officers\nand employees and (ii) agents, representatives and advisors, which may include attorneys, accountants, consultants, potential financing sources\nand representatives of such advisors. For purposes of this Agreement, the term "Representative" with respect to the Company shall mean the\nCompany and its subsidiaries' (i) directors, officers and employees and (ii) agents, representatives and advisors, which may include attorneys,\naccountants, consultants and representatives of such advisors. For purposes of this Agreement, the term "person" shall be broadly interpreted to\ninclude the media and any corporation partnership, company, limited liability company, trust, association, joint venture, government or self-\nregulatory agency or body, group (as such term is used in Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended (the "Exchange\nAct")), individual or other entity. For purposes of this Agreement, the term "affiliate" shall have the meaning ascribed to such term in Rule 12b-2\nunder the Exchange Act.\n1. The Receiving Party hereby agrees that the Receiving Party and its Representatives will (i) keep the Evaluation Material\nconfidential and (ii) not disclose any of the Evaluation Material without the prior written consent of the Disclosing Party; provided, however, that\nthe Receiving Party may disclose Evaluation Material only to its Representatives (a) who have a reasonable need to know particular Evaluation\nMaterial for the purpose of considering, pursuing and/or facilitating a Transaction, (b) who are informed by the Receiving Party in advance of\nthe\nconfidential nature of such information and (c) who agree to act in\naccordance with the terms of this Agreement to the same extent as if they were parties hereto, for the benefit of the Disclosing Party. The\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives and the Receiving Party agrees to take\ncommercially reasonable measures to restrain its Representatives from disclosure or improper use of the Evaluation Material or from breaching\nany other provision of this Agreement.\n2. Each party agrees, unless otherwise required by law or regulation, without the prior written consent of the other party, not to\ndisclose, directly or indirectly, to any person other than its Representatives that (i) the parties have entered into this Agreement, (ii) the\nEvaluation Material exists or has been made available by the Disclosing Party to the Receiving Party and its Representatives and (iii) discussions\nor negotiations are taking or have taken place concerning the Transaction between Intel and the Company concerning the Transaction or any\nof\nthe terms, conditions or other facts with respect thereto (including the status thereof).\n3. Each party will submit all: (i) communications regarding a Transaction, (ii) requests for additional information in connection\nwith a Transaction; (iii) requests for facility tours or management meetings in connection with a Transaction; and (iv) questions regarding\nprocedures in connection with a Transaction, only to persons specifically designated by the other party for that purpose.\n4. In the event that the Receiving Party or any of its Representatives is required by applicable law, regulation, stock exchange\nrequirement, subpoena or legal process (including oral questions, civil investigative demand, subpoena, request for information or documents, or\nother similar process or filing with the Securities and Exchange Commission or regulatory body) to disclose any of the Evaluation Material or\ninformation described in paragraph 2 of this Agreement other than as expressly permitted under the terms of this Agreement, the Receiving Party\nwill, to the extent reasonably practicable and as far in advance as is reasonably practicable, promptly notify the Disclosing Party of the\ninformation to be disclosed so that the Disclosing Party may, at its election and expense, seek a protective order or other appropriate remedy. In\nno event shall the Receiving Party, or any of its Representatives, disclose any Evaluation Material other than that portion of the Evaluation\nMaterial that the Receiving Party's legal counsel advises the Receiving Party is legally required to be disclosed or oppose an action by the\nDisclosing Party to obtain a protective order, motion to quash and/or other relief to prevent the production or disclosure of the Evaluation\nMaterial or to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded the information\nso\ndisclosed.\n5. At any time upon the request of the Disclosing Party for any reason, the Receiving Party will, at the option of the Receiving\nParty, promptly (i) destroy all copies (which shall include to the extent practical erasing or deleting all electronic copies) of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives or (ii) deliver to the Disclosing Party at the expense of the\nReceiving Party all hard copies of the Evaluation Material and, to the extent practical, erase or delete all electronic copies of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives. In addition, if\nrequested in writing by the Disclosing Party, the Receiving Party agrees to have an officer certify in writing to the Disclosing Party that the\nReceiving Party has complied with its obligations under this paragraph. Notwithstanding the return or destruction (as applicable) of the\nEvaluation Material, the Receiving Party and its Representatives will continue to be bound by its confidentiality and non-disclosure obligations\npursuant to the terms of this Agreement. Notwithstanding anything herein, (i) a Receiving Party may retain a copy of the Evaluation Material\ndisclosed to it for legal archival purposes to evidence such party's compliance with the terms of this Agreement, (ii) any of such Receiving\nParty's Representatives that are financial institutions may retain for compliance purposes only a copy of the Evaluation Material so required by\napplicable law or other policies of self-regulatory organizations and (iii) such Receiving Party's counsels may retain a copy of the Evaluation\nMaterial that reflects the advice of counsel or may otherwise contain attorney client privileged materials for legal archival purposes.\n6. The Receiving Party understands and acknowledges that neither the Disclosing Party nor any of its Representatives makes\nany\nrepresentation or warranty, express or implied, as to the accuracy, timeliness or completeness of the Evaluation Material. The Receiving Party\nagrees that neither the Disclosing Party nor any of its Representatives shall have any liability (including, without limitation, in contract, tort,\nunder federal or state securities laws or otherwise) to the Receiving Party or to any of its Representatives relating to or resulting from the use\nor\nnon-use of the Evaluation Material or any errors therein or omissions therefrom, regardless of any decision made in reliance on the Evaluation\nMaterial, and neither the Receiving Party nor its Representatives will make any claims whatsoever against such persons, with respect to,\nor\narising out of, the Evaluation Material. Notwithstanding the above, those representations or warranties that are made in a Definitive Agreement\n(as\ndefined below) regarding a negotiated Transaction between the parties, when, as and if executed, and subject to such limitations and\nrestrictions as may be specified therein, will have legal effect. The term "Definitive Agreement" means a written contract executed and\ndelivered by all parties thereto for the Transaction, which contract binds the parties thereto to close such Transaction, subject only to such\nconditions to closing as may be negotiated between the parties thereto, and does not include an executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or oral acceptance of an offer or bid for the Transaction. Notwithstanding anything to the\ncontrary contained in this Section 6 or elsewhere in this Agreement, nothing in this Agreement will operate to limit any remedy the Receiving\nParty or any of its Representatives may have for fraud committed by the Disclosing Party or any of its Representatives (whether or not such fraud\nrelates to a representation made in a written agreement between the parties).\n7.\nEach party understands and agrees that no contract or agreement providing for the Transaction shall be deemed to exist between\nthem unless and until a Definitive Agreement has been executed and delivered between them. Each party also agrees that unless and until a\nDefinitive Agreement has been executed and delivered between them, neither party shall be under any legal obligation of any kind whatsoever\nwith respect to the Transaction by virtue of this Agreement, except for the matters specifically agreed to herein and in the related Exclusivity\nAgreement between the parties dated of the date hereof. Each party further\nacknowledges and agrees that the other party may at any time, in its sole discretion, for any reason or no reason, without prior notice to the other\nparty, reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction, terminate discussions and\nnegotiations with the other party and its Representatives or refuse to provide any further access to the Evaluation Materials.\n8. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material,\nnonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information. Each party hereby represents\nthat, as of the date hereof, it and its controlled affiliates do not, directly or indirectly, (i) own of record or beneficially any securities of the other\nparty or (ii) possess or have the right to possess (whether upon the occurrence of an event, lapse of time or otherwise) any economic interest,\nvoting right or other right with respect to any security of the other party or any of its affiliates, including Derivative Securities.\n9.\nTo the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, inquiry, arbitration or dispute, each party acknowledges that the parties have a commonality of interest with respect\nto\nsuch action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agree that it is the parties' mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder\nand shall be entitled to protection under the joint defense doctrine, and each party agrees to take all reasonable measures necessary to preserve,\nto\nthe fullest extent possible, the applicability of all such privileges and doctrines.\n10. This Agreement contains the entire agreement between Intel and the Company concerning the subject matter of this Agreement,\nand no provision of this Agreement may be waived or amended, except by the written consent of the parties, which consent shall explicitly\nreference\nsuch waiver or amendment. Any attempted waiver or amendment in violation of this provision shall be void ab initio. Notwithstanding\nthe foregoing, this Agreement shall not supersede any other non-disclosure agreement or confidentiality agreement entered into between\nthe\nparties prior to the date hereof and not in connection with a potential Transaction.\n11. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any\nother right, power or privilege.\n12. Each party acknowledge that money damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement by the other party or any of its Representatives and each party shall be entitled to seek injunctive relief without proof of actual\ndamages or posting of a bond as a remedy for any such breach or threatened breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach or threatened breach by a party or any of its Representatives of this Agreement but may be in addition to all other remedies\navailable at law or equity to the other party. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines\nin\nan order that a party or any of its Representatives has breached or threatened to breach this Agreement, then such party will reimburse the other\nparty for the reasonable legal fees and expenses incurred by the other party in connection with enforcing its rights hereunder, including any\nappeal therefrom.\n13. This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by and construed\nin accordance with the internal laws of the State of New York, without reference to its conflicts of law principles.\n14. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the United States District\nCourt for the Southern District of New York or any New York State court sitting in the Borough of Manhattan, New York City for any actions,\nsuits or proceedings arising out of or relating to this Agreement and agree (i) not to commence any action, suit or proceeding relating thereto\nexcept in such courts, (ii) to waive and not to assert any defenses as to personal jurisdiction of such courts over such party and (iii) that service\nof\nany process, summons, notice or document by U.S. registered mail to the address set forth above shall be effective service of process for any\naction, suit or proceeding brought against a party in such courts.\n15. The provisions of this Agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n17. This Agreement shall inure solely to the benefit of and be binding upon each of the parties hereto and their respective\nsuccessors and permitted assigns; provided that neither party may assign this Agreement or any of its rights and obligations hereunder without\nthe prior written consent of the other party. Any attempted assignment by a party without the other party's prior written consent will be of\nno\nforce and effect.\n18. Except as expressly set forth herein, each of the parties shall be responsible for its own costs and expenses associated with the\nsubject matter of this Agreement, whether or not a Transaction is consummated.\n19. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement\nexcept for the right to review the Evaluation Material for purposes of considering, pursuing and/or facilitating a Transaction pursuant to\nparagraph 1 hereof. Neither party is obligated under this Agreement to purchase from or provide to the other party any service or product.\n20. This Agreement and all obligations hereunder shall terminate and cease to be of any further force or effect as of the second\n(2nd) anniversary of the date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between Intel and the Company.\nVery truly yours,\nINTEL CORPORATION\nBy: /s/ Wendell M. Brooks\nName: Wendell M. Brooks\nTitle: Senior Vice President and\nPresident Intel Capital\nAccepted: February 1, 2017\nMOBILEYE N.V.\nBy: /s/ Ziv Aviram\nName: Ziv Aviram\nTitle: CEO and President\nBy: /s/ Prof. Amnon Shashva\nName: Prof. Amnon Shashva\nTitle: CTO and Chairman\n[Signature Page to Letter Agreement]	EX-99.(D)(2) 9 d352811dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nCONFIDENTIAL\nFebruary 1, 2017\nMobileye N.V.\nHar Hotzvim, 13 Hartom Street\nP.O . Box 45157\nJerusalem 9777513, Israel\nAttn: Professor Amnon Shashua, Chairman and Chief Technology Officer\nDear Amnon:\nIn connection with the consideration by Intel Corporation (“Intel”) of a possible transaction involving Intel and Mobileye N.V. (the\n“Company”) or one or more shareholders of the Company (the “Transaction”), each of us may receive certain information relating to the other\nparty and its subsidiaries. The party receiving this information from the other party (the “Receiving Party”) acknowledges that this information\nis proprietary to the party disclosing such information (the “Disclosing Party”) and may include confidential information the disclosure of which\ncould harm the disclosing party and its subsidiaries.\nIn consideration for, and as a condition of, such information being made available to the Receiving Party and its Representatives (as\ndefined below), the Receiving Party agrees to treat, or cause to be treated, any and all information disclosed by the Disclosing Party or any of its\nsubsidiaries to the Receiving Party or its Representatives in connection with the proposed Transaction on or after the date of this letter agreement\n(this “Agreement”) (and regardless of the manner or form in which it is disclosed, including, without limitation, all written, oral and electronic\ncommunications and all information posted in any electronic dataroom), together with any notes, analyses, reports, models, compilations, studies,\ninterpretations, documents or records to the extent such documents contain or are derived from such information, in whole or in part\n(collectively, the “Evaluation Material”), in accordance with the provisions of this Agreement, and to take or abstain from taking the other\nactions hereinafter set forth. For purposes of this Agreement, the term “Evaluation Material” does not include information that (i) becomes\ngenerally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of the terms of this\nAgreement, (ii) is independently developed by the Receiving Party or its Representatives without reference to or use of the Disclosing Party’s\nconfidential information, (iii) was within the Receiving Party’s possession prior to the date of this Agreement or (iv) is received by the Receiving\nParty from a source other than the Disclosing Party or any of its Representatives; provided that, in the case of clause (iii) above, to the extent\nsuch information was provided to the Receiving Party by the Disclosing Party, then the Receiving Party shall be permitted to use such\ninformation in connection with a potential\nTransaction and such information will continue to be subject to any other non-disclosure or confidentiality agreement entered into between the\nparties prior to the date hereof and not in connection with a potential Transaction; provided further that, in the case of clause (iv) above, to the\nknowledge of the Receiving Party, the source of such information was not bound by a confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to the Disclosing Party or any of its subsidiaries with respect to such information. Notwithstanding\nanything to the contrary herein, each party and its Representatives shall be free to use and employ, in any manner and for any purpose, any\nResiduals resulting from their access to or work with Evaluation Material, including, without limitation, in the development, manufacture, sales,\npromotion and maintenance of the products or services of the Receiving Party. “Residuals” means information retained in the unaided memories\nof Representatives of the Receiving Party who have access to the Evaluation Material. The memory of a Representative is considered unaided if\nhe or she did not intentionally memorize the information for the purpose of retaining it and later using it or disclosing it to a third party. Each\nparty reserves all rights, subject to the terms and conditions of this Agreement, (a) to design, develop, manufacture, market, and distribute\nproducts and services that contain similar features or functionality to, or that compete with, products or services of the other party or its\nsubsidiaries; and (b) to enter into agreements with third parties who design, develop, manufacture, market, or distribute products or services that\ncontain similar features or functionality to, or that compete with, products or services of the other party and its subsidiaries. The provisions of\nthis Agreement will not restrict the free movement, or assignment to different tasks and activities, of Representatives of the receiving party\nthroughout his or her organization.\nFor purposes of this Agreement, the term “Representative” with respect to Intel shall mean Intel and its subsidiaries’ (i) directors, officers\nand employees and (ii) agents, representatives and advisors, which may include attorneys, accountants, consultants, potential financing sources\nand representatives of such advisors. For purposes of this Agreement, the term “Representative” with respect to the Company shall mean the\nCompany and its subsidiaries’ (i) directors, officers and employees and (ii) agents, representatives and advisors, which may include attorneys,\naccountants, consultants and representatives of such advisors. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any corporation, partnership, company, limited liability company, trust, association, joint venture, government or self-\nregulatory agency or body, group (as such term is used in Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”)), individual or other entity. For purposes of this Agreement, the term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2\nunder the Exchange Act.\n1. The Receiving Party hereby agrees that the Receiving Party and its Representatives will (i) keep the Evaluation Material\nconfidential and (ii) not disclose any of the Evaluation Material without the prior written consent of the Disclosing Party; provided, however, that\nthe Receiving Party may disclose Evaluation Material only to its Representatives (a) who have a reasonable need to know particular Evaluation\nMaterial for the purpose of considering, pursuing and/or facilitating a Transaction, (b) who are informed by the Receiving Party in advance of the\nconfidential nature of such information and (c) who agree to act in\naccordance with the terms of this Agreement to the same extent as if they were parties hereto, for the benefit of the Disclosing Party. The\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives and the Receiving Party agrees to take\ncommercially reasonable measures to restrain its Representatives from disclosure or improper use of the Evaluation Material or from breaching\nany other provision of this Agreement.\n2. Each party agrees, unless otherwise required by law or regulation, without the prior written consent of the other party, not to\ndisclose, directly or indirectly, to any person other than its Representatives that (i) the parties have entered into this Agreement, (ii) the\nEvaluation Material exists or has been made available by the Disclosing Party to the Receiving Party and its Representatives and (iii) discussions\nor negotiations are taking or have taken place concerning the Transaction between Intel and the Company concerning the Transaction or any of\nthe terms, conditions or other facts with respect thereto (including the status thereof).\n3. Each party will submit all: (i) communications regarding a Transaction, (ii) requests for additional information in connection\nwith a Transaction; (iii) requests for facility tours or management meetings in connection with a Transaction; and (iv) questions regarding\nprocedures in connection with a Transaction, only to persons specifically designated by the other party for that purpose.\n4. In the event that the Receiving Party or any of its Representatives is required by applicable law, regulation, stock exchange\nrequirement, subpoena or legal process (including oral questions, civil investigative demand, subpoena, request for information or documents, or\nother similar process or filing with the Securities and Exchange Commission or regulatory body) to disclose any of the Evaluation Material or\ninformation described in paragraph 2 of this Agreement other than as expressly permitted under the terms of this Agreement, the Receiving Party\nwill, to the extent reasonably practicable and as far in advance as is reasonably practicable, promptly notify the Disclosing Party of the\ninformation to be disclosed so that the Disclosing Party may, at its election and expense, seek a protective order or other appropriate remedy. In\nno event shall the Receiving Party, or any of its Representatives, disclose any Evaluation Material other than that portion of the Evaluation\nMaterial that the Receiving Party’s legal counsel advises the Receiving Party is legally required to be disclosed or oppose an action by the\nDisclosing Party to obtain a protective order, motion to quash and/or other relief to prevent the production or disclosure of the Evaluation\nMaterial or to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded the information so\ndisclosed.\n5. At any time upon the request of the Disclosing Party for any reason, the Receiving Party will, at the option of the Receiving\nParty, promptly (i) destroy all copies (which shall include to the extent practical erasing or deleting all electronic copies) of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives or (ii) deliver to the Disclosing Party at the expense of the\nReceiving Party all hard copies of the Evaluation Material and, to the extent practical, erase or delete all electronic copies of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives. In addition, if\nrequested in writing by the Disclosing Party, the Receiving Party agrees to have an officer certify in writing to the Disclosing Party that the\nReceiving Party has complied with its obligations under this paragraph. Notwithstanding the return or destruction (as applicable) of the\nEvaluation Material, the Receiving Party and its Representatives will continue to be bound by its confidentiality and non-disclosure obligations\npursuant to the terms of this Agreement. Notwithstanding anything herein, (i) a Receiving Party may retain a copy of the Evaluation Material\ndisclosed to it for legal archival purposes to evidence such party’s compliance with the terms of this Agreement, (ii) any of such Receiving\nParty’s Representatives that are financial institutions may retain for compliance purposes only a copy of the Evaluation Material so required by\napplicable law or other policies of self-regulatory organizations and (iii) such Receiving Party’s counsels may retain a copy of the Evaluation\nMaterial that reflects the advice of counsel or may otherwise contain attorney client privileged materials for legal archival purposes.\n6. The Receiving Party understands and acknowledges that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy, timeliness or completeness of the Evaluation Material. The Receiving Party\nagrees that neither the Disclosing Party nor any of its Representatives shall have any liability (including, without limitation, in contract, tort,\nunder federal or state securities laws or otherwise) to the Receiving Party or to any of its Representatives relating to or resulting from the use or\nnon-use of the Evaluation Material or any errors therein or omissions therefrom, regardless of any decision made in reliance on the Evaluation\nMaterial, and neither the Receiving Party nor its Representatives will make any claims whatsoever against such persons, with respect to, or\narising out of, the Evaluation Material. Notwithstanding the above, those representations or warranties that are made in a Definitive Agreement\n(as defined below) regarding a negotiated Transaction between the parties, when, as and if executed, and subject to such limitations and\nrestrictions as may be specified therein, will have legal effect. The term “Definitive Agreement” means a written contract executed and\ndelivered by all parties thereto for the Transaction, which contract binds the parties thereto to close such Transaction, subject only to such\nconditions to closing as may be negotiated between the parties thereto, and does not include an executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or oral acceptance of an offer or bid for the Transaction. Notwithstanding anything to the\ncontrary contained in this Section 6 or elsewhere in this Agreement, nothing in this Agreement will operate to limit any remedy the Receiving\nParty or any of its Representatives may have for fraud committed by the Disclosing Party or any of its Representatives (whether or not such fraud\nrelates to a representation made in a written agreement between the parties).\n7. Each party understands and agrees that no contract or agreement providing for the Transaction shall be deemed to exist between\nthem unless and until a Definitive Agreement has been executed and delivered between them. Each party also agrees that unless and until a\nDefinitive Agreement has been executed and delivered between them, neither party shall be under any legal obligation of any kind whatsoever\nwith respect to the Transaction by virtue of this Agreement, except for the matters specifically agreed to herein and in the related Exclusivity\nAgreement between the parties dated of the date hereof. Each party further\nacknowledges and agrees that the other party may at any time, in its sole discretion, for any reason or no reason, without prior notice to the other\nparty, reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction, terminate discussions and\nnegotiations with the other party and its Representatives or refuse to provide any further access to the Evaluation Materials.\n8. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material,\nnonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information. Each party hereby represents\nthat, as of the date hereof, it and its controlled affiliates do not, directly or indirectly, (i) own of record or beneficially any securities of the other\nparty or (ii) possess or have the right to possess (whether upon the occurrence of an event, lapse of time or otherwise) any economic interest,\nvoting right or other right with respect to any security of the other party or any of its affiliates, including Derivative Securities.\n9. To the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, inquiry, arbitration or dispute, each party acknowledges that the parties have a commonality of interest with respect to\nsuch action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agree that it is the parties’ mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder\nand shall be entitled to protection under the joint defense doctrine, and each party agrees to take all reasonable measures necessary to preserve, to\nthe fullest extent possible, the applicability of all such privileges and doctrines.\n10. This Agreement contains the entire agreement between Intel and the Company concerning the subject matter of this Agreement,\nand no provision of this Agreement may be waived or amended, except by the written consent of the parties, which consent shall explicitly\nreference such waiver or amendment. Any attempted waiver or amendment in violation of this provision shall be void ab initio. Notwithstanding\nthe foregoing, this Agreement shall not supersede any other non-disclosure agreement or confidentiality agreement entered into between the\nparties prior to the date hereof and not in connection with a potential Transaction.\n11. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any\nother right, power or privilege.\n12. Each party acknowledge that money damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement by the other party or any of its Representatives and each party shall be entitled to seek injunctive relief without proof of actual\ndamages or posting of a bond as a remedy for any such breach or threatened breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach or threatened breach by a party or any of its Representatives of this Agreement but may be in addition to all other remedies\navailable at law or equity to the other party. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in\nan order that a party or any of its Representatives has breached or threatened to breach this Agreement, then such party will reimburse the other\nparty for the reasonable legal fees and expenses incurred by the other party in connection with enforcing its rights hereunder, including any\nappeal therefrom.\n13. This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by and construed\nin accordance with the internal laws of the State of New York, without reference to its conflicts of law principles.\n14. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the United States District\nCourt for the Southern District of New York or any New York State court sitting in the Borough of Manhattan, New York City for any actions,\nsuits or proceedings arising out of or relating to this Agreement and agree (i) not to commence any action, suit or proceeding relating thereto\nexcept in such courts, (ii) to waive and not to assert any defenses as to personal jurisdiction of such courts over such party and (iii) that service of\nany process, summons, notice or document by U.S. registered mail to the address set forth above shall be effective service of process for any\naction, suit or proceeding brought against a party in such courts.\n15. The provisions of this Agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n17. This Agreement shall inure solely to the benefit of and be binding upon each of the parties hereto and their respective\nsuccessors and permitted assigns; provided that neither party may assign this Agreement or any of its rights and obligations hereunder without\nthe prior written consent of the other party. Any attempted assignment by a party without the other party’s prior written consent will be of no\nforce and effect.\n18. Except as expressly set forth herein, each of the parties shall be responsible for its own costs and expenses associated with the\nsubject matter of this Agreement, whether or not a Transaction is consummated.\n19. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement\nexcept for the right to review the Evaluation Material for purposes of considering, pursuing and/or facilitating a Transaction pursuant to\nparagraph 1 hereof. Neither party is obligated under this Agreement to purchase from or provide to the other party any service or product.\n20. This Agreement and all obligations hereunder shall terminate and cease to be of any further force or effect as of the second\n(2nd) anniversary of the date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between Intel and the Company.\nVery truly yours,\nINTEL CORPORATION\nBy: /s/ Wendell M. Brooks\nName: Wendell M. Brooks\nTitle: Senior Vice President and\nPresident Intel Capital\nAccepted: February 1, 2017\nMOBILEYE N.V.\nBy: /s/ Ziv Aviram\nName: Ziv Aviram\nTitle: CEO and President\nBy: /s/ Prof. Amnon Shashva\nName: Prof. Amnon Shashva\nTitle: CTO and Chairman\n[Signature Page to Letter Agreement]
f4dac00c09a763dfb4acd109e1731690.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 11 dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nEXHIBIT 99(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a\nDelaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German\ncompany with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries,\n(“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the\nfollowing:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may\ndeliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential\nInformation being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”).\n2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined\nbelow) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be\nreasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or\noperations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or\npartner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or\nconcerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third\nparty); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the\nDisclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of\nprocessing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts,\ndocumentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s\nSoftware; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas,\ntechniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts\nand strategies.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below)\nto keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the\npurpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not\ndisclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to\nknow for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto,\nincluding, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential\nInformation has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care.\nAs used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business\nadvisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be\nresponsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse\nof Confidential Information that may come to its attention.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is\nindependently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a\nthird party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this\nAgreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the\nDisclosing Party agrees in writing is free of such restrictions.\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not\nspecified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to\nthose involved herein.\nConfidential\nPage1of5\nMUTUAL NON-DISCLOSURE AGREEMENT\n6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this\nAgreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those\nof the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from\naccess to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of\nthe Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in\nthe unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have\nnot studied the information for the purpose of replicating the same from memory. Neither party shall have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, the foregoing shall not be deemed to grant\nto either party a license under the other party’s copyrights or patents.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving\nParty shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the\nDisclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing\nParty’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of\nthis Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives\ncompliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable\nefforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential\nInformation that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the\nDisclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible\nmedia, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving\nParty; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not\nbe destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in\nconnection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up\nsystems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy\nConfidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further\nprovided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each party acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons\nof such Representatives makes any express or implied representation or warranty as to the completeness of the Confidential Information.\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall\nbe under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of\nintent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set\nforth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such\nmanner as such party, in its sole discretion, may determine (including, without limitation, negotiating and\nConfidential\nPage2of5\nMUTUAL NON-DISCLOSURE AGREEMENT\nentering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion,\nat any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction\n(including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the\nConfidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any\nbusiness decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other\nparty is aware of or has indicated approval of, such decision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information.\n13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief\nby way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this\nAgreement.\n14. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty regarding the Confidential\nInformation, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information.\n15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from\nobtaining such information by U.S . export laws and shall otherwise comply with all applicable U.S. export laws and regulations.\n16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America,\nwithout giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the\nevent that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the\nremaining portions hereof shall remain in full force and effect.\n17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in\nconnection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the\nparties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either\nparty or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other\nagreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this\nAgreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the\nparties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver\nof a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further\nunderstood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s\nsole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and\nuse of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a\ntermination of this Agreement until the first anniversary of the Effective Date.\n19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that\nfor a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the\nparty’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s):\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence\nany person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or\nConfidential\nPage3of5\nMUTUAL NON-DISCLOSURE AGREEMENT\noffer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a\nmaterial portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)\n(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other\nparty’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or\n(vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of\nthe events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at\nany time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest\nrelated to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does\nnot intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents\nand that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of\nthe receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at\nleast 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or\n“group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by\npurchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting\nsecurities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other\nparty and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be\napproved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar\ntransaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who,\nimmediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to\nbeneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the\ncombined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or\nsimilar transaction be approved.\nConfidential\nPage4of5\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall\nconstitute one and the same agreement.\nAccepted and Agreed to by\nSybase, Inc.\nBy: /s/ Daniel R. Carl\nName: Daniel R. Carl\nTitle: Vice President, General Counsel and Secretary\nDate: April 19, 2010\nSAP AG\nBy: /s/ Werner Brandt\nBy: /s/ Michael Junge\nName: Dr. Werner Brandt\nName: Michael Junge\nTitle: CFO\nTitle: General Counsel\nDate: April 19, 2010\nDate: April 20, 2010\nConfidential\nPage5of5	EX-99.(D)(2) 11 dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nEXHIBIT 99(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a\nDelaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German\ncompany with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries,\n(“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the\nfollowing:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may\ndeliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential\nInformation being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”).\n2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined\nbelow) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be\nreasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or\noperations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or\npartner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or\nconcerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third\nparty); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the\nDisclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of\nprocessing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts,\ndocumentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s\nSoftware; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas,\ntechniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts\nand strategies.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below)\nto keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the\npurpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not\ndisclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to\nknow for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto,\nincluding, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential\nInformation has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care.\nAs used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business\nadvisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be\nresponsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse\nof Confidential Information that may come to its attention.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is\nindependently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a\nthird party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this\nAgreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the\nDisclosing Party agrees in writing is free of such restrictions.\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not\nspecified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to\nthose involved herein.\nConfidential Page 1 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\n6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this\nAgreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those\nof the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from\naccess to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of\nthe Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in\nthe unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have\nnot studied the information for the purpose of replicating the same from memory. Neither party shall have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, the foregoing shall not be deemed to grant\nto either party a license under the other party’s copyrights or patents.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving\nParty shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the\nDisclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing\nParty’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of\nthis Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives\ncompliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable\nefforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential\nInformation that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the\nDisclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible\nmedia, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving\nParty; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not\nbe destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in\nconnection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up\nsystems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy\nConfidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further\nprovided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each party acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons\nof such Representatives makes any express or implied representation or warranty as to the completeness of the Confidential Information.\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall\nbe under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of\nintent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set\nforth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such\nmanner as such party, in its sole discretion, may determine (including, without limitation, negotiating and\nConfidential Page 2 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nentering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion,\nat any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction\n(including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the\nConfidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any\nbusiness decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other\nparty is aware of or has indicated approval of, such decision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information.\n13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief\nby way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this\nAgreement.\n14. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty regarding the Confidential\nInformation, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information.\n15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from\nobtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations.\n16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America,\nwithout giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the\nevent that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the\nremaining portions hereof shall remain in full force and effect.\n17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in\nconnection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the\nparties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either\nparty or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other\nagreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this\nAgreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the\nparties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver\nof a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further\nunderstood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s\nsole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and\nuse of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a\ntermination of this Agreement until the first anniversary of the Effective Date.\n19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that\nfor a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the\nparty’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s):\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence\nany person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or\nConfidential Page 3 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\noffer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a\nmaterial portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)\n(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other\nparty’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or\n(vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of\nthe events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at\nany time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest\nrelated to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does\nnot intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents\nand that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of\nthe receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at\nleast 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or\n“group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by\npurchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting\nsecurities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other\nparty and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be\napproved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar\ntransaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who,\nimmediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to\nbeneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the\ncombined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or\nsimilar transaction be approved.\nConfidential Page 4 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.\nAccepted and Agreed to by\nSybase, Inc.\nBy:  /s/Daniel R. Carl\nName: Daniel R. Carl\nTitle: Vice President, General Counsel and Secretary\nDate: April 19, 2010\nSAP AG\nBy: /s/ Werner Brandt By:\nName: Dr. Werner Brandt Name:\nTitle: CFO Title:\nDate: April 19, 2010 Date:\nConfidential\n/s/ Michael Junge\nMichael Junge\nGeneral Counsel\nApril 20, 2010\nPage 5 of 5	EX-99.(D)(2) 11 dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nEXHIBIT 99(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") is effective as of April 2, 2010 ("Effective Date") and is entered into between Sybase, Inc., a\nDelaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA ("Company"), and SAP AG, a German\ncompany with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries,\n("SAP"). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the\nfollowing:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the "Evaluation"), SAP and Company may\ndeliver to each other, upon the execution of this Agreement, Confidentia Information as defined below (the party disclosing such Confidential\nInformation being the "Disclosing Party" and the party receiving such Confidential Information being the "Receiving Party").\n2. As used herein, "Confidential Information" shall mean all information furnished by the Disclosing Party or its Representatives (defined\nbelow) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be\nreasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or\noperations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer\nor\npartner of the Disclosing Party; (d) the Disclosing Party's properties, employees, customers, finances, operations; (e) any information about or\nconcerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third\nparty); (f) software and related documentation ("Disclosing Party's Software") including but not limited to the following information regarding the\nDisclosing Party's Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of\nprocessing, system designs embodied in the Disclosing Party's Software; and (ii) discoveries, inventions, concepts, designs, flow charts,\ndocumentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party's\nSoftware; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas,\ntechniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts\nand strategies.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below)\nto keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the\npurpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not\ndisclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to\nknow for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto,\nincluding, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidentia\nInformation has been made available to the Receiving Party or its Representatives. As used herein "reasonable steps" means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care.\nAs used herein, "Representatives" shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business\nadvisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be\nresponsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse\nof Confidential Information that may come to its attention.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is\nindependently developed by the Receiving Party without reference to the Confidentia Information, or is lawfully received free of restriction from a\nthird party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this\nAgreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the\nDisclosing Party agrees in writing is free of such restrictions.\n5.\nNeither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment\nas\nto\nany\nproduct,\nincluding\nthe\ndevelopment\nor\nfunctionality\nof\nany\nproduct;\n(c)\nsoliciting\nany\nbusiness\nor\nincurring\nany\nobligation\nnot\nspecified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to\nthose involved herein.\nConfidential\nPage 1 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\n6. Nothing in this Agreement shall prohibit or restrict either party's right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this\nAgreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those\nof\nthe\nother party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from\naccess to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of\nthe Confidential Information as required by this Agreement. The term "residuals" means information in non-tangible form which may be retained in\nthe\nunaided\nmemory\nby\npersons\nwho\nhave\nhad\naccess,\nas\nauthorized\nin\nthis\nAgreement,\nto\nthe\nConfidential\nInformation\nso\nlong\nas\nsuch\npersons\nhave\nnot studied the information for the purpose of replicating the same from memory. Neither party shall have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, the foregoing shall not be deemed to grant\nto either party a license under the other party's copyrights or patents.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving\nParty shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the\nDisclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing\nParty's taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of\nthis Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives\ncompliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable\nefforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential\nInformation that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled\nto\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\n9. Upon the Disclosing Party's written request, the Receiving Party shall (at the Receiving Party's election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the\nDisclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible\nmedia, such as electronic mail or computer files) in the Receiving Party's possession or in the possession of any Representative of the Receiving\nParty; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not\nbe destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not,\nin\nconnection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up\nsystems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy\nConfidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further\nprovided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each party acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons\nof such Representatives makes any express or implied representation or warranty as to the completeness of the Confidential Information.\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall\nbe\nunder any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of\nintent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set\nforth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such\nmanner as such party, in its sole discretion, may determine (including, without limitation, negotiating and\nConfidential\nPage 2 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nentering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion,\nat any time and without notice to the other party) the procedures relating to the parties' consideration of the potential relationship or transaction\n(including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the\nConfidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability\nto\nthe\nother.\nAny\nbusiness decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other\nparty is aware of or has indicated approval of, such decision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information.\n13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief\nby way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this\nAgreement.\n14. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty regarding the Confidential\nInformation, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information.\n15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from\nobtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations.\n16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America,\nwithout giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the\nevent that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable,\nthe\nremaining portions hereof shall remain in full force and effect.\n17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in\nconnection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the\nparties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either\nparty or software license provisions and rights, then this Agreement shall not supersede either party's rights and obligations as provided in such\nother\nagreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this\nAgreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the\nparties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver\nof a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further\nunderstood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party's\nsole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and\nuse of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive\na\ntermination of this Agreement until the first anniversary of the Effective Date.\n19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that\nfor a period of one (1) year from the date of this Agreement, neither party nor any of each party's affiliates or its Representatives acting on the\nparty's behalf will, unless specifically invited in writing by the other party or the other party's Board of Directors or its Chief Executive Officer(s):\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any\n"solicitation" of "proxies" (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence\nany person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or\nConfidential\nPage 3 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\noffer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly,\na\nmaterial portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a "group" (as defined in Section 13(d)\n(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other\nparty's Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or\n(vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of\nthe\nevents described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at\nany time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest\nrelated to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does\nnot intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents\nand that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of\nthe receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party\nat\nleast 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person\nor\n"group" (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by\npurchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting\nsecurities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other\nparty and its subsidiaries and the other party's Board of Directors has recommended to such other party's shareholders that such acquisition\nbe\napproved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar\ntransaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who,\nimmediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue\nto\nbeneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the\ncombined entity and the other party's Board of Directors has recommended to such other party's shareholders that such merger, consolidation or\nsimilar transaction be approved.\nConfidential\nPage 4 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall\nconstitute one and the same agreement.\nAccepted and Agreed to by\nSybase, Inc.\nBy:\n/s/ Daniel R. Carl\nName: Daniel R. Carl\nTitle: Vice President, General Counsel and Secretary\nDate: April 19, 2010\nSAP AG\nBy:\n/s/ Werner Brandt\nBy:\n/s/ Michael Junge\nName: Dr. Werner Brandt\nName: Michael Junge\nTitle: CFO\nTitle: General Counsel\nDate: April 19, 2010\nDate: April 20, 2010\nConfidential\nPage 5 of 5	EX-99.(D)(2) 11 dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nEXHIBIT 99(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a\nDelaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German\ncompany with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries,\n(“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the\nfollowing:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may\ndeliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential\nInformation being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”).\n2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined\nbelow) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be\nreasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or\noperations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or\npartner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or\nconcerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third\nparty); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the\nDisclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of\nprocessing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts,\ndocumentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s\nSoftware; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas,\ntechniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts\nand strategies.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below)\nto keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the\npurpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not\ndisclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to\nknow for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto,\nincluding, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential\nInformation has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care.\nAs used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business\nadvisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be\nresponsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse\nof Confidential Information that may come to its attention.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is\nindependently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a\nthird party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this\nAgreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the\nDisclosing Party agrees in writing is free of such restrictions.\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not\nspecified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to\nthose involved herein.\nConfidential\nPage1of5\nMUTUAL NON-DISCLOSURE AGREEMENT\n6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this\nAgreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those\nof the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from\naccess to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of\nthe Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in\nthe unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have\nnot studied the information for the purpose of replicating the same from memory. Neither party shall have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, the foregoing shall not be deemed to grant\nto either party a license under the other party’s copyrights or patents.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving\nParty shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the\nDisclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing\nParty’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of\nthis Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives\ncompliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable\nefforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential\nInformation that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the\nDisclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible\nmedia, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving\nParty; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not\nbe destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in\nconnection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up\nsystems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy\nConfidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further\nprovided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each party acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons\nof such Representatives makes any express or implied representation or warranty as to the completeness of the Confidential Information.\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall\nbe under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of\nintent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set\nforth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such\nmanner as such party, in its sole discretion, may determine (including, without limitation, negotiating and\nConfidential\nPage2of5\nMUTUAL NON-DISCLOSURE AGREEMENT\nentering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion,\nat any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction\n(including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the\nConfidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any\nbusiness decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other\nparty is aware of or has indicated approval of, such decision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information.\n13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief\nby way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this\nAgreement.\n14. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty regarding the Confidential\nInformation, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information.\n15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from\nobtaining such information by U.S . export laws and shall otherwise comply with all applicable U.S. export laws and regulations.\n16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America,\nwithout giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the\nevent that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the\nremaining portions hereof shall remain in full force and effect.\n17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in\nconnection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the\nparties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either\nparty or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other\nagreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this\nAgreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the\nparties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver\nof a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further\nunderstood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s\nsole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and\nuse of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a\ntermination of this Agreement until the first anniversary of the Effective Date.\n19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that\nfor a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the\nparty’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s):\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence\nany person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or\nConfidential\nPage3of5\nMUTUAL NON-DISCLOSURE AGREEMENT\noffer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a\nmaterial portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)\n(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other\nparty’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or\n(vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of\nthe events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at\nany time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest\nrelated to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does\nnot intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents\nand that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of\nthe receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at\nleast 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or\n“group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by\npurchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting\nsecurities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other\nparty and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be\napproved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar\ntransaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who,\nimmediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to\nbeneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the\ncombined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or\nsimilar transaction be approved.\nConfidential\nPage4of5\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall\nconstitute one and the same agreement.\nAccepted and Agreed to by\nSybase, Inc.\nBy: /s/ Daniel R. Carl\nName: Daniel R. Carl\nTitle: Vice President, General Counsel and Secretary\nDate: April 19, 2010\nSAP AG\nBy: /s/ Werner Brandt\nBy: /s/ Michael Junge\nName: Dr. Werner Brandt\nName: Michael Junge\nTitle: CFO\nTitle: General Counsel\nDate: April 19, 2010\nDate: April 20, 2010\nConfidential\nPage5of5
f538df53f1d7f992c8b16d2b721c9408.pdf	effective_date jurisdiction party term	EX-10.2 3 dex102.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.2\nConfidential Separation Agreement and General Release and Amendment to\nConfidentiality and Non-Disclosure Agreement\nThis Confidential Separation Agreement and General Release (hereafter “Agreement”) is entered into by and between Orthovita Inc.\n(hereafter “Orthovita” or “Company”), and Donald L. Scanlan (hereafter “Employee”). As used in this Agreement, “Company” shall include and\nencompass all of the past, present, or future parent, affiliated, related and/or subsidiary companies of Orthovita, and its past, present or future\ndirectors, shareholders, officers, employees, agents, attorneys and representatives.\nEMPLOYEE and ORTHOVITA agree to the following terms and conditions in full and final settlement of all matters in any way\nrelating to, or arising out of, EMPLOYEE’s employment and/or separation from employment with ORTHOVITA.\n1. Employee’s final day of employment with the Company will be Friday, June 15, 2007 (“Termination Date”), and Employee hereby resigns\nas of such date.\n2. Subject to Employee’s execution and nonrevocation of this Agreement and in consideration for Employee’s obligations and agreements\nhereunder, the Company will:\n(a) pay Employee a total of $218,000.00, payable as salary continuation for a period of 12 months, which is equivalent to 12\nmonths of salary continuation at Employee’s current semi-monthly salary of $9,083.33, minus all taxes and payroll\ndeductions authorized by law. These payments will commence with the Company’s next payroll period following the\nJune 15, 2007, Termination Date, provided that Employee has not revoked this Agreement prior to the Effective Date\n(hereinafter defined) of the Agreement. Amounts due under this paragraph 2(a) shall be payable in semi-monthly\ninstallments in accordance with Orthovita’s normal payroll cycle;\n(b) If EMPLOYEE chooses to continue his group medical and dental benefits under COBRA, ORTHOVITA will pay the\nCOBRA premiums for such medical/dental benefits through the twelve month period following the Agreement Date;\n(c) Orthovita will provide EMPLOYEE with a payment equal to any reasonable unreimbursed business expenses through\nJune 15, 2007 and any accrued, unused vacation days through the Agreement Termination Date; and\n(d) Orthovita acknowledges that Employee’s vested status in Orthovita’s matching contributions to Employee’s John Hancock\n401(k) Retirement Account is 66% and such vested percentage will remain intact, but that Employee’s plan account is\nvalued on a daily basis.\n(e) amend Employee’s non-compete provisions as specified in Section 3 herein below.\n3. The Company has elected to enforce against Employee his non-compete obligations provided for in Section 3 (a)—(d) of Employee’s\nConfidentiality and Non-Disclosure Agreement with the Company dated 1st of October 2004, attached hereto as Exhibit A, incorporated by\nreference and made part hereof in its entirety (“CDA”), provided that the Company and Employee agree that this Agreement amends Section 3 and\nSection 6 of the CDA, and except as explicitly stated herein, all other provisions in the CDA remain in full force and effect. Further, in the event that\nEmployee breaches the non-compete provisions of the CDA as modified hereby, the Company shall not be obligated to make the payments in\nSection 2 above. In consideration for the Company’s undertakings as described in Section 2 herein and in accordance with the provisions of this\nSection 3:\n(a) Employee agrees that upon execution of this Agreement, Employee will return all Company equipment, Company documents and\nany other Company property including all sales and marketing literature, in Employee’s possession, custody or control. Such\nCompany property includes any Company equipment and materials in Employee’s home;\n(b) Employee agrees to abide by the following Non-Compete Agreement:\n1) The “Non-Compete Ending Date” is June 15, 2008.\n2) “Competitive Areas” means bone grafting, surgical hemostasis, treatment of vertebral compression fractures, and bioactive\nstructural interbody fusion spine spacer applications.\n3) Commencing on the Employee’s June 15, 2007, Termination Date of employment with the Company, and continuing through\nand including the Non-Compete Ending Date of June 15, 2008, (the “Restriction Period”), Employee will not, without the Company’s express prior\nwritten consent, directly or indirectly own, manage, create, operate, sell, market, license, join, control, finance or participate in the ownership,\nmanagement, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant\nor otherwise with, or use or permit his name to be used in connection with, any person, business, firm, organization, enterprise or entity that\ndevelops, designs, manufactures, sells, licenses, markets or provides advice on any technologies, products or products in development in the\nCompetitive Areas (a “Competing Business”), or sell or license to, or develop for or with a Competing Business any technologies or products in the\nCompetitive Areas. Such products and technologies include, without limitation, those products and technologies which (i) the Company or any of its\ndivisions and/or subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed; (ii) have been disclosed to Employee verbally or\nin writing during the course of his employment, during any consulting arrangement or as of the Termination Date as being in the process of\ndevelopment, manufacturing, selling, licensing or marketing by the Company, its divisions and/or its affiliates; and (iii) to Employee’s knowledge,\nthe Company may be in the process of developing, manufacturing, selling, licensing or marketing now or through the Restriction Period.\nIt is recognized by Employee that the business of the Company, its divisions and/or its affiliates and Employee’s connection therewith\nhas been, is or will be involved in activity throughout the world, and that more limited geographical limitations on this non-competition covenant are\ntherefore not appropriate.\nThe foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than one percent of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses having a class of securities registered pursuant to the Securities\nExchange Act of 1934 (the “Exchange Act”), provided that such ownership represents a passive investment and that neither Employee nor any group\nof persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising his rights as a shareholder, or seeks to do any of the foregoing.\n4. Employee on behalf of himself and his successors, assigns, heirs and legal representatives (“Releasors”), hereby voluntarily and knowingly\nremises, releases, acquits and forever discharges the Company and its representatives, its parent, affiliated and subsidiary corporations, and its and\ntheir predecessors, successors, affiliates, officers, directors, agents, assigns, employees, attorneys, employee benefit plans, employee benefit plan\nadministrators, and employee benefit plan fiduciaries (“Releasees”), from any and all claims, rights, expenses, debts, demands, costs, contracts,\nliabilities, obligations, actions, and causes of action of any nature, known or unknown, based upon any fact, circumstance, or event occurring or\nexisting at or prior to Employee’s execution of this Agreement, including, but not limited to, any and all matters relating to Employee’s employment\nwith the Company or the termination of that employment. This Release specifically includes, but is not limited to, any claims or actions arising out\nof or during Employee’s employment with the Company and/or separation of employment, including any claim under the Age Discrimination in\nEmployment Act (“ADEA”), 29 U.S .C. §621 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S .C. §2000e et seq.; the Americans with\nDisabilities Act, 42 U.S .C. §12101 et seq.; the Employee Retirement Income Security Act, 29 U.S .C. §1101 et seq.; 42 U.S .C. §1981 (“Section\n1981”); the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §951 et seq.; the Pennsylvania Wage Payment and Collection Law (“WPCL”), 43\nP.S. §260.1 et seq.; the Family and Medical Leave Act (“FMLA”) and any and all other federal, state or local laws, and any common law claims now\nor hereafter recognized, as well as all claims for counsel fees and costs. The claims being waived and released include, without limitation, (a) any\nand all claims arising from or relating to Employee’s recruitment, hire, employment and termination of employment with the Company; (b) any and\nall claims of wrongful discharge, emotional distress,\ndefamation, misrepresentation, fraud, detrimental reliance, breach of contractual obligations, promissory estoppel, negligence, assault and battery,\nviolation of public policy; (c) any and all claims of unlawful discrimination, harassment and retaliation under applicable federal, state and local laws\nand regulations; (d) any and all claims of violation of any federal, state, and local law relating to recruitment, hiring, terms and conditions of\nemployment, and termination of employment; and (e) any and all claims for monetary damages and any other forms of personal relief. This Release\nis not intended to apply to claims that cannot be waived by private agreement under applicable law.\nThis release covers any claims Employee may have up to and including the date of this Agreement, but does not cover claims that arise\nafter the date of this Agreement or those relating to the enforcement of this Agreement, nor will it affect those benefits which are intended to survive\nEmployee’s termination as an Employee of the Company, such as conversion of group insurance. This Release does not amount to a waiver of any\nclaims for accrued, vested benefits under any employee benefit or pension plan of RELEASEES, subject to the terms and conditions of such plans\nand applicable law.\nEmployee acknowledges that this Agreement resolves any and all legal claims that Employee may have against the Company as of the\ndate of this Agreement, whether known or unknown.\n5. Employee represents and covenants that Employee will not communicate or disclose the terms of this Agreement to any persons other than\nany federal, state or local taxing authorities, Employee’s immediate family, Employee’s attorney or attorneys, and Employee’s accountant or\naccountants, who will be instructed by Employee to agree to be bound by the confidential nature of this Agreement. Nothing herein is intended to\nlimit Employee’s ability to disclose or discuss the tax treatment or tax structure of the payments made to Employee as necessary to address or clarify\nthe appropriate tax treatment of the payments to be made pursuant to Section 2. Employee recognizes and agrees that should it be determined, in a\ncourt of law, that Employee violated this section, Employee shall be required to refund to the Company all monies payable under this Agreement, in\naddition to any other legal or equitable relief that may be available and awarded to the Company. Nothing in this section, or elsewhere in this\nAgreement, is intended to prevent or prohibit Employee from: (i) providing information regarding Employee’s former employment relationship with\nthe Company, as may be required by law or legal process; or (ii) cooperating, participating, or assisting in any government entity investigation or\nproceeding.\n6. Employee understands and agrees that in the course of employment with the Company, Employee may have acquired confidential\ninformation and trade secrets concerning the Company’s business, its future plans and its methods of doing business, including, without limitation,\ninformation about its products, services, product development, customers, technology, financial circumstances, marketing, pricing, costs,\ncompensation and other matters (hereinafter collectively called “Trade Secrets”).\nEmployee may not reveal or disclose, sell, use, lecture upon, or publish any such Trade Secrets, or authorize anyone else to do so at any time\nsubsequent to Employee’s employment with the Company. Employee will return all copies and originals of the Company documents, files, lists and\nother information of a business nature to the Company immediately, (whether or not such includes Trade Secrets) and any future use of same by\nEmployee is prohibited.\n7. Employee and the Company mutually agree to refrain from making disparaging, defaming, derogatory, critical or negative comments\nregarding each other, the Company’s products, services or officers, directors, employees or former employees of the Company with respect to any\npast, present or future issues, except if testifying truthfully in response to a lawfully served subpoena.\n8. Neither the negotiation, undertaking or signing of this Agreement constitutes or operates as an acknowledgment or admission that the\nCompany, or any person acting on behalf of the Company, has violated or failed to comply with any provisions of federal or state constitution,\nstatute, law, regulation, municipal ordinance, or principle of common law. This agreement is made voluntarily to provide an amicable conclusion to\nEmployee’s employment relationship with the Company.\n9. Employee agrees and understands that the Company does not have, and will not have, any further obligations to provide Employee at any\ntime with any payment, benefit or consideration other than those recited in Section 2 above.\n10. Employee hereby agrees and recognizes that Employee’s employment relationship with the Company has been permanently and\nirrevocably severed as of the June 15, 2007 Termination Date and that the Company has no obligation, contractual or otherwise, to hire, rehire or re-\nemploy Employee in the future.\n11. Employee agrees that Employee shall reasonably cooperate with the Company following the Termination Date to assist with legal\nproceedings with respect to matters for which Employee was responsible during Employee’s employment with the Company.\n12. In signing this Agreement, Employee acknowledges that:\n(a) Employee has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which Employee\nacknowledges as adequate and satisfactory.\n(b) Employee has been advised by the Company to consult with an attorney before signing this Agreement;\n(c) Employee has been given a period of at least twenty-one (21) calendar days after the date Employee received this Agreement, within\nwhich to review and consider this Agreement, to discuss it with an attorney of Employee’s own choosing, and to decide whether or not to\nsign this Agreement.\n(d) The Employee has consulted with an attorney of his own choosing during this time period.\n(e) In addition, for the period of seven (7) calendar days after the date Employee signs this Agreement (“Revocation Period”), Employee\nmay revoke it by delivering written notice of revocation to the Company by hand-delivery or by facsimile or e-mail transmission (and\nretaining proof of successful transmission) using the street, facsimile, or e-mail address to: Patricia A. Twomey, Vice President, Human\nResources, Orthovita Inc., 77 Great Valley Parkway, Malvern, PA, 610.640 .9206 (facsimile), PTwomey@Orthovita.com (email); and\n(f) Neither the Company, nor any of its employees, agents, representatives, or attorneys has made any representations to Employee\nconcerning the terms or effects of this Agreement and other than those contained herein.\n13. In the event that any one or more provisions (or portion thereof) of this Agreement is held to be invalid, unlawful, or unenforceable for any\nreason, the invalid, unlawful, or unenforceable provision (or portion thereof) shall be construed or modified so as to provide the Company and\nAffiliates with the maximum protection that is valid, lawful and enforceable, consistent with the intent of the Company and Employee in entering\ninto this Agreement. If such provision (or portion thereof) cannot be construed or modified so as to be valid, lawful and enforceable, that provision\n(or portion thereof) shall be construed as narrowly as possible and shall be severed from the remainder of the Agreement (or provision), and the\nremainder shall remain in effect and be construed as broadly as possible, as if such invalid, unlawful or unenforceable provision (or portion thereof)\nhad never been contained in this Agreement.\n14. This Agreement shall take effect on the first day following the expiration of the Revocation Period, provided this Agreement has not been\nrevoked by Employee as provided in Section 12 above during such Revocation Period (the “Effective Date”).\n15. It is agreed and understood that this Agreement contains and comprises the entire understanding of the parties and that there are no\nadditional or other promises, representations, terms or provisions other than those expressly contained herein. This Agreement shall not be modified\nexcept in writing signed by each of the parties. This Agreement supersedes all other prior agreements concerning the terms of Employee’s\nemployment with the Company, except for the CDA as amended hereby.\n16. Employee agrees to the jurisdiction of any court in the Commonwealth of Pennsylvania over all disputes, which may arise involving this\nAgreement and Employee hereby consents to the assertion of personal jurisdiction over Employee by any such Court in any such action instituted by\nthe Company pursuant to this section. This Agreement and the obligations of the parties shall be construed, interpreted and enforced in accordance\nwith the laws of Pennsylvania without regard to choice of law provisions.\nI HAVE READ THIS AGREEMENT. I UNDERSTAND THAT I AM GIVING UP IMPORTANT RIGHTS PER SECTION 4,\nABOVE. I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY OF MY OWN CHOOSING DURING THE\nCONSIDERATION PERIOD, AND THAT THE COMPANY HAS ADVISED ME TO UNDERTAKE SUCH CONSULTATION BEFORE\nSIGNING THIS AGREEMENT. I SIGN THIS AGREEMENT FREELY AND VOLUNTARILY, WITHOUT DURESS OR COERCION.\nIN WITNESS WHEREOF, and intending to be legally bound and under seal, the parties have executed the foregoing Confidentiality\nSeparation Agreement and General Release and Amendment to Confidentiality and Non-Disclosure Agreement.\nDated: June 21, 2007\nBy: /s/ Donald L. Scanlan\nORTHOVITA, INC.\nDated: June 25, 2007\nBy: /s/ Antony Koblish\nPresident & CEO\nWitness: /s/ Patricia A. Twomey	EX-10.2 3 dex102.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.2\nConfidential Separation Agreement and General Release and Amendment to\nConfidentiality and Non-Disclosure Agreement\nThis Confidential Separation Agreement and General Release (hereafter “Agreement”) is entered into by and between Orthovita Inc.\n(hereafter “Orthovita” or “Company”), and Donald L. Scanlan (hereafter “Employee”). As used in this Agreement, “Company” shall include and\nencompass all of the past, present, or future parent, affiliated, related and/or subsidiary companies of Orthovita, and its past, present or future\ndirectors, shareholders, officers, employees, agents, attorneys and representatives.\nEMPLOYEE and ORTHOVITA agree to the following terms and conditions in full and final settlement of all matters in any way\nrelating to, or arising out of, EMPLOYEE’s employment and/or separation from employment with ORTHOVITA.\n1. Employee’s final day of employment with the Company will be Friday, June 15, 2007 (“Termination Date”), and Employee hereby resigns\nas of such date.\n2. Subject to Employee’s execution and nonrevocation of this Agreement and in consideration for Employee’s obligations and agreements\nhereunder, the Company will:\n(a) pay Employee a total of $218,000.00, payable as salary continuation for a period of 12 months, which is equivalent to 12\nmonths of salary continuation at Employee’s current semi-monthly salary of $9,083.33, minus all taxes and payroll\ndeductions authorized by law. These payments will commence with the Company’s next payroll period following the\nJune 15, 2007, Termination Date, provided that Employee has not revoked this Agreement prior to the Effective Date\n(hereinafter defined) of the Agreement. Amounts due under this paragraph 2(a) shall be payable in semi-monthly\ninstallments in accordance with Orthovita’s normal payroll cycle;\n(b) If EMPLOYEE chooses to continue his group medical and dental benefits under COBRA, ORTHOVITA will pay the\nCOBRA premiums for such medical/dental benefits through the twelve month period following the Agreement Date;\n(c) Orthovita will provide EMPLOYEE with a payment equal to any reasonable unreimbursed business expenses through\nJune 15, 2007 and any accrued, unused vacation days through the Agreement Termination Date; and\n(d) Orthovita acknowledges that Employee’s vested status in Orthovita’s matching contributions to Employee’s John Hancock\n401(k) Retirement Account is 66% and such vested percentage will remain intact, but that Employee’s plan account is\nvalued on a daily basis.\n(e) amend Employee’s non-compete provisions as specified in Section 3 herein below.\n3. The Company has elected to enforce against Employee his non-compete obligations provided for in Section 3 (a)—(d) of Employee’s\nConfidentiality and Non-Disclosure Agreement with the Company dated 15t of October 2004, attached hereto as Exhibit A, incorporated by\nreference and made part hereof in its entirety (“CDA”), provided that the Company and Employee agree that this Agreement amends Section 3 and\nSection 6 of the CDA, and except as explicitly stated herein, all other provisions in the CDA remain in full force and effect. Further, in the event that\nEmployee breaches the non-compete provisions of the CDA as modified hereby, the Company shall not be obligated to make the payments in\nSection 2 above. In consideration for the Company’s undertakings as described in Section 2 herein and in accordance with the provisions of this\nSection 3:\n(a) Employee agrees that upon execution of this Agreement, Employee will return all Company equipment, Company documents and\nany other Company property including all sales and marketing literature, in Employee’s possession, custody or control. Such\nCompany property includes any Company equipment and materials in Employee’s home;\n(b)  Employee agrees to abide by the following Non-Compete Agreement:\n1) The “Non-Compete Ending Date” is June 15, 2008.\n2) “Competitive Areas” means bone grafting, surgical hemostasis, treatment of vertebral compression fractures, and bioactive\nstructural interbody fusion spine spacer applications.\n3) Commencing on the Employee’s June 15, 2007, Termination Date of employment with the Company, and continuing through\nand including the Non-Compete Ending Date of June 15, 2008, (the “Restriction Period”), Employee will not, without the Company’s express prior\nwritten consent, directly or indirectly own, manage, create, operate, sell, market, license, join, control, finance or participate in the ownership,\nmanagement, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant\nor otherwise with, or use or permit his name to be used in connection with, any person, business, firm, organization, enterprise or entity that\ndevelops, designs, manufactures, sells, licenses, markets or provides advice on any technologies, products or products in development in the\nCompetitive Areas (a “Competing Business™), or sell or license to, or develop for or with a Competing Business any technologies or products in the\nCompetitive Areas. Such products and technologies include, without limitation, those products and technologies which (i) the Company or any of its\ndivisions and/or subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed; (ii) have been disclosed to Employee verbally or\nin writing during the course of his employment, during any consulting arrangement or as of the Termination Date as being in the process of\ndevelopment, manufacturing, selling, licensing or marketing by the Company, its divisions and/or its affiliates; and (iii) to Employee’s knowledge,\nthe Company may be in the process of developing, manufacturing, selling, licensing or marketing now or through the Restriction Period.\nIt is recognized by Employee that the business of the Company, its divisions and/or its affiliates and Employee’s connection therewith\nhas been, is or will be involved in activity throughout the world, and that more limited geographical limitations on this non-competition covenant are\ntherefore not appropriate.\nThe foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than one percent of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses having a class of securities registered pursuant to the Securities\nExchange Act of 1934 (the “Exchange Act”), provided that such ownership represents a passive investment and that neither Employee nor any group\nof persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising his rights as a shareholder, or seeks to do any of the foregoing.\n4. Employee on behalf of himself and his successors, assigns, heirs and legal representatives (“Releasors”), hereby voluntarily and knowingly\nremises, releases, acquits and forever discharges the Company and its representatives, its parent, affiliated and subsidiary corporations, and its and\ntheir predecessors, successors, affiliates, officers, directors, agents, assigns, employees, attorneys, employee benefit plans, employee benefit plan\nadministrators, and employee benefit plan fiduciaries (“Releasees”), from any and all claims, rights, expenses, debts, demands, costs, contracts,\nliabilities, obligations, actions, and causes of action of any nature, known or unknown, based upon any fact, circumstance, or event occurring or\nexisting at or prior to Employee’s execution of this Agreement, including, but not limited to, any and all matters relating to Employee’s employment\nwith the Company or the termination of that employment. This Release specifically includes, but is not limited to, any claims or actions arising out\nof or during Employee’s employment with the Company and/or separation of employment, including any claim under the Age Discrimination in\nEmployment Act (“ADEA™), 29 U.S.C. §621 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.; the Americans with\nDisabilities Act, 42 U.S.C. §12101 et seq.; the Employee Retirement Income Security Act, 29 U.S.C. §1101 et seq.; 42 U.S.C. §1981 (“Section\n1981”); the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §951 et seq.; the Pennsylvania Wage Payment and Collection Law (“WPCL”), 43\nP.S. §260.1 et seq.; the Family and Medical Leave Act (“FMLA”) and any and all other federal, state or local laws, and any common law claims now\nor hereafter recognized, as well as all claims for counsel fees and costs. The claims being waived and released include, without limitation, (a) any\nand all claims arising from or relating to Employee’s recruitment, hire, employment and termination of employment with the Company; (b) any and\nall claims of wrongful discharge, emotional distress,\ndefamation, misrepresentation, fraud, detrimental reliance, breach of contractual obligations, promissory estoppel, negligence, assault and battery,\nviolation of public policy; (c) any and all claims of unlawful discrimination, harassment and retaliation under applicable federal, state and local laws\nand regulations; (d) any and all claims of violation of any federal, state, and local law relating to recruitment, hiring, terms and conditions of\nemployment, and termination of employment; and (e) any and all claims for monetary damages and any other forms of personal relief. This Release\nis not intended to apply to claims that cannot be waived by private agreement under applicable law.\nThis release covers any claims Employee may have up to and including the date of this Agreement, but does not cover claims that arise\nafter the date of this Agreement or those relating to the enforcement of this Agreement, nor will it affect those benefits which are intended to survive\nEmployee’s termination as an Employee of the Company, such as conversion of group insurance. This Release does not amount to a waiver of any\nclaims for accrued, vested benefits under any employee benefit or pension plan of RELEASEES, subject to the terms and conditions of such plans\nand applicable law.\nEmployee acknowledges that this Agreement resolves any and all legal claims that Employee may have against the Company as of the\ndate of this Agreement, whether known or unknown.\n5. Employee represents and covenants that Employee will not communicate or disclose the terms of this Agreement to any persons other than\nany federal, state or local taxing authorities, Employee’s immediate family, Employee’s attorney or attorneys, and Employee’s accountant or\naccountants, who will be instructed by Employee to agree to be bound by the confidential nature of this Agreement. Nothing herein is intended to\nlimit Employee’s ability to disclose or discuss the tax treatment or tax structure of the payments made to Employee as necessary to address or clarify\nthe appropriate tax treatment of the payments to be made pursuant to Section 2. Employee recognizes and agrees that should it be determined, in a\ncourt of law, that Employee violated this section, Employee shall be required to refund to the Company all monies payable under this Agreement, in\naddition to any other legal or equitable relief that may be available and awarded to the Company. Nothing in this section, or elsewhere in this\nAgreement, is intended to prevent or prohibit Employee from: (i) providing information regarding Employee’s former employment relationship with\nthe Company, as may be required by law or legal process; or (ii) cooperating, participating, or assisting in any government entity investigation or\nproceeding.\n6. Employee understands and agrees that in the course of employment with the Company, Employee may have acquired confidential\ninformation and trade secrets concerning the Company’s business, its future plans and its methods of doing business, including, without limitation,\ninformation about its products, services, product development, customers, technology, financial circumstances, marketing, pricing, costs,\ncompensation and other matters (hereinafter collectively called “Trade Secrets”).\nEmployee may not reveal or disclose, sell, use, lecture upon, or publish any such Trade Secrets, or authorize anyone else to do so at any time\nsubsequent to Employee’s employment with the Company. Employee will return all copies and originals of the Company documents, files, lists and\nother information of a business nature to the Company immediately, (whether or not such includes Trade Secrets) and any future use of same by\nEmployee is prohibited.\n7. Employee and the Company mutually agree to refrain from making disparaging, defaming, derogatory, critical or negative comments\nregarding each other, the Company’s products, services or officers, directors, employees or former employees of the Company with respect to any\npast, present or future issues, except if testifying truthfully in response to a lawfully served subpoena.\n8. Neither the negotiation, undertaking or signing of this Agreement constitutes or operates as an acknowledgment or admission that the\nCompany, or any person acting on behalf of the Company, has violated or failed to comply with any provisions of federal or state constitution,\nstatute, law, regulation, municipal ordinance, or principle of common law. This agreement is made voluntarily to provide an amicable conclusion to\nEmployee’s employment relationship with the Company.\n9. Employee agrees and understands that the Company does not have, and will not have, any further obligations to provide Employee at any\ntime with any payment, benefit or consideration other than those recited in Section 2 above.\n10. Employee hereby agrees and recognizes that Employee’s employment relationship with the Company has been permanently and\nirrevocably severed as of the June 15, 2007 Termination Date and that the Company has no obligation, contractual or otherwise, to hire, rehire or re-\nemploy Employee in the future.\n11. Employee agrees that Employee shall reasonably cooperate with the Company following the Termination Date to assist with legal\nproceedings with respect to matters for which Employee was responsible during Employee’s employment with the Company.\n12. In signing this Agreement, Employee acknowledges that:\n(a) Employee has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which Employee\nacknowledges as adequate and satisfactory.\n(b) Employee has been advised by the Company to consult with an attorney before signing this Agreement;\n(c) Employee has been given a period of at least twenty-one (21) calendar days after the date Employee received this Agreement, within\nwhich to review and consider this Agreement, to discuss it with an attorney of Employee’s own choosing, and to decide whether or not to\nsign this Agreement.\n(d) The Employee has consulted with an attorney of his own choosing during this time period.\n(e) In addition, for the period of seven (7) calendar days after the date Employee signs this Agreement (“Revocation Period”), Employee\nmay revoke it by delivering written notice of revocation to the Company by hand-delivery or by facsimile or e-mail transmission (and\nretaining proof of successful transmission) using the street, facsimile, or e-mail address to: Patricia A. Twomey, Vice President, Human\nResources, Orthovita Inc., 77 Great Valley Parkway, Malvern, PA, 610.640.9206 (facsimile), PTwomey@0Orthovita.com (email); and\n(f) Neither the Company, nor any of its employees, agents, representatives, or attorneys has made any representations to Employee\nconcerning the terms or effects of this Agreement and other than those contained herein.\n13. In the event that any one or more provisions (or portion thereof) of this Agreement is held to be invalid, unlawful, or unenforceable for any\nreason, the invalid, unlawful, or unenforceable provision (or portion thereof) shall be construed or modified so as to provide the Company and\nAffiliates with the maximum protection that is valid, lawful and enforceable, consistent with the intent of the Company and Employee in entering\ninto this Agreement. If such provision (or portion thereof) cannot be construed or modified so as to be valid, lawful and enforceable, that provision\n(or portion thereof) shall be construed as narrowly as possible and shall be severed from the remainder of the Agreement (or provision), and the\nremainder shall remain in effect and be construed as broadly as possible, as if such invalid, unlawful or unenforceable provision (or portion thereof)\nhad never been contained in this Agreement.\n14. This Agreement shall take effect on the first day following the expiration of the Revocation Period, provided this Agreement has not been\nrevoked by Employee as provided in Section 12 above during such Revocation Period (the “Effective Date”).\n15. It is agreed and understood that this Agreement contains and comprises the entire understanding of the parties and that there are no\nadditional or other promises, representations, terms or provisions other than those expressly contained herein. This Agreement shall not be modified\nexcept in writing signed by each of the parties. This Agreement supersedes all other prior agreements concerning the terms of Employee’s\nemployment with the Company, except for the CDA as amended hereby.\n16. Employee agrees to the jurisdiction of any court in the Commonwealth of Pennsylvania over all disputes, which may arise involving this\nAgreement and Employee hereby consents to the assertion of personal jurisdiction over Employee by any such Court in any such action instituted by\nthe Company pursuant to this section. This Agreement and the obligations of the parties shall be construed, interpreted and enforced in accordance\nwith the laws of Pennsylvania without regard to choice of law provisions.\nI HAVE READ THIS AGREEMENT. I UNDERSTAND THAT I AM GIVING UP IMPORTANT RIGHTS PER SECTION 4,\nABOVE. I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY OF MY OWN CHOOSING DURING THE\nCONSIDERATION PERIOD, AND THAT THE COMPANY HAS ADVISED ME TO UNDERTAKE SUCH CONSULTATION BEFORE\nSIGNING THIS AGREEMENT. I SIGN THIS AGREEMENT FREELY AND VOLUNTARILY, WITHOUT DURESS OR COERCION.\nIN WITNESS WHEREOF, and intending to be legally bound and under seal, the parties have executed the foregoing Confidentiality\nSeparation Agreement and General Release and Amendment to Confidentiality and Non-Disclosure Agreement.\nDated: June 21, 2007\nBy: /s/ Donald L. Scanlan\nORTHOVITA, INC.\nDated: June 25, 2007\nBy: /s/ Antony Koblish\nPresident & CEO\nWitness: /s/ Patricia A. Twomey	EX-10.2 3 dex102.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.2\nConfidential Separation Agreement and General Release and Amendment to\nConfidentiality and Non-Disclosure Agreement\nThis Confidential Separation Agreement and General Release (hereafter "Agreement") is entered into by and between Orthovita\nInc.\n(hereafter "Orthovita" or "Company"), and Donald L. Scanlan (hereafter "Employee"). As used in this Agreement, "Company" shall include and\nencompass all of the past, present, or future parent, affiliated, related and/or subsidiary companies of Orthovita, and its past, present or future\ndirectors, shareholders, officers, employees, agents, attorneys and representatives.\nEMPLOYEE and ORTHOVITA agree to the following terms and conditions in full and final settlement of all matters in any way\nrelating to, or arising out of, EMPLOYEE'S employment and/or separation from employment with ORTHOVITA.\n1. Employee's final day of employment with the Company will be Friday, June 15, 2007 ("Termination Date"), and Employee hereby\nresigns\nas of such date.\n2. Subject to Employee's execution and nonrevocation of this Agreement and in consideration for Employee's obligations and agreements\nhereunder, the Company will:\n(a) pay Employee a total of $218,000.00, payable as salary continuation for a period of 12 months, which is equivalent to 12\nmonths of salary continuation at Employee's current semi-monthly salary of $9,083.33, minus all taxes and payroll\ndeductions authorized by law. These payments will commence with the Company's next payroll period following the\nJune 15, 2007, Termination Date, provided that Employee has not revoked this Agreement prior to the Effective Date\n(hereinafter defined) of the Agreement. Amounts due under this paragraph 2(a) shall be payable in semi-monthly\ninstallments in accordance with Orthovita's normal payroll cycle;\n(b) If EMPLOYEE chooses to continue his group medical and dental benefits under COBRA, ORTHOVITA will pay the\nCOBRA premiums for such medical/dental benefits through the twelve month period following the Agreement Date;\n(c)\nOrthovita will provide EMPLOYEE with a payment equal to any reasonable unreimbursed business expenses through\nJune 15, 2007 and any accrued, unused vacation days through the Agreement Termination Date; and\n(d) Orthovita acknowledges that Employee's vested status in Orthovita's matching contributions to Employee's John Hancock\n401(k) Retirement Account is 66% and such vested percentage will remain intact, but that Employee's plan account is\nvalued on a daily basis.\n(e)\namend Employee's non-compete provisions as specified in Section 3 herein below.\n3. The Company has elected to enforce against Employee his non-compete obligations provided for in Section 3 (a)-(d) of Employee's\nConfidentiality and Non-Disclosure Agreement with the Company dated 1st of October 2004, attached hereto as Exhibit A, incorporated by\nreference and made part hereof in its entirety ("CDA"), provided that the Company and Employee agree that this Agreement amends Section 3 and\nSection 6 of the CDA, and except as explicitly stated herein, all other provisions in the CDA remain in full force and effect. Further, in the event that\nEmployee breaches the non-compete provisions of the CDA as modified hereby, the Company shall not be obligated to make the payments in\nSection 2 above. In consideration for the Company's undertakings as described in Section 2 herein and in accordance with the provisions of this\nSection 3:\n(a)\nEmployee agrees that upon execution of this Agreement, Employee will return all Company equipment, Company documents and\nany other Company property including all sales and marketing literature, in Employee's possession, custody or control. Such\nCompany property includes any Company equipment and materials in Employee's home;\n(b)\nEmployee agrees to abide by the following Non-Compete Agreement:\n1) The "Non-Compete Ending Date" is June 15, 2008.\n2) "Competitive Areas" means bone grafting, surgical hemostasis, treatment of vertebral compression fractures, and bioactive\nstructural interbody fusion spine spacer applications.\n3) Commencing on the Employee's June 15, 2007, Termination Date of employment with the Company, and continuing through\nand including the Non-Compete Ending Date of June 15, 2008, (the "Restriction Period"), Employee will not, without the Company's express prior\nwritten consent, directly or indirectly own, manage, create, operate, sell, market, license, join, control, finance or participate in the ownership,\nmanagement, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant\nor otherwise with, or use or permit his name to be used in connection with, any person, business, firm, organization, enterprise or entity that\ndevelops, designs, manufactures, sells, licenses, markets or provides advice on any technologies, products or products in development in the\nCompetitive Areas (a "Competing Business"), or sell or license to, or develop for or with a Competing Business any technologies or products in the\nCompetitive Areas. Such products and technologies include, without limitation, those products and technologies which (i) the Company or any of its\ndivisions and/or subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed; (ii) have been disclosed to Employee verbally or\nin writing during the course of his employment, during any consulting arrangement or as of the Termination Date as being in the process of\ndevelopment, manufacturing, selling, licensing or marketing by the Company, its divisions and/or its affiliates; and (iii) to Employee's knowledge,\nthe Company may be in the process of developing, manufacturing, selling, licensing or marketing now or through the Restriction Period.\nIt is recognized by Employee that the business of the Company, its divisions and/or its affiliates and Employee's connection therewith\nhas been, is or will be involved in activity throughout the world, and that more limited geographical limitations on this non-competition covenant are\ntherefore not appropriate.\nThe foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than one percent of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses having a class of securities registered pursuant to the Securities\nExchange Act of 1934 (the "Exchange Act"), provided that such ownership represents a passive investment and that neither Employee nor any group\nof persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising his rights as a shareholder, or seeks to do any of the foregoing.\n4. Employee on behalf of himself and his successors, assigns, heirs and legal representatives ("Releasors"), hereby voluntarily and knowingly\nremises, releases, acquits and forever discharges the Company and its representatives, its parent, affiliated and subsidiary corporations, and its and\ntheir predecessors, successors, affiliates, officers, directors, agents, assigns, employees, attorneys, employee benefit plans, employee benefit plan\nadministrators, and employee benefit plan fiduciaries ("Releasees"), from any and all claims, rights, expenses, debts, demands, costs, contracts,\nliabilities, obligations, actions, and causes of action of any nature, known or unknown, based upon any fact, circumstance, or event occurring\nor\nexisting\nat\nor\nprior\nto\nEmployee's\nexecution\nof\nthis\nAgreement,\nincluding,\nbut\nnot\nlimited\nto,\nany\nand\nall\nmatters\nrelating\nto\nEmployee's\nemployment\nwith the Company or the termination of that employment. This Release specifically includes, but is not limited to, any claims or actions arising out\nof or during Employee's employment with the Company and/or separation of employment, including any claim under the Age Discrimination\nin\nEmployment Act ("ADEA"), 29 U.S.C. $621 et see; Title VII of the Civil Rights Act of 1964, 42 U.S.C. 82000e et sege; the Americans with\nDisabilities Act, 42 U.S.C. 12101 et seqe; the Employee Retirement Income Security Act, 29 U.S.C. 81101 et seq.; 42 U.S.C. 1981 ("Section\n1981"); the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. 8951 et seq.; the Pennsylvania Wage Payment and Collection Law ("WPCL"), 43\nP.S. 8260.1 et seg:; the Family and Medical Leave Act ("FMLA") and any and all other federal, state or local laws, and any common law claims now\nor hereafter recognized, as well as all claims for counsel fees and costs. The claims being waived and released include, without limitation, (a) any\nand all claims arising from or relating to Employee's recruitment, hire, employment and termination of employment with the Company; (b) any and\nall claims of wrongful discharge, emotional distress,\ndefamation, misrepresentation, fraud, detrimental reliance, breach of contractua obligations, promissory estoppel, negligence, assault and battery,\nviolation of public policy; (c) any and all claims of unlawful discrimination, harassment and retaliation under applicable federal, state and local laws\nand regulations; (d) any and all claims of violation of any federal, state, and local law relating to recruitment, hiring, terms and conditions of\nemployment, and termination of employment; and (e) any and all claims for monetary damages and any other forms of personal relief. This Release\nis not intended to apply to claims that cannot be waived by private agreement under applicable law.\nThis release covers any claims Employee may have up to and including the date of this Agreement, but does not cover claims that arise\nafter the date of this Agreement or those relating to the enforcement of this Agreement, nor will it affect those benefits which are intended to survive\nEmployee's termination as an Employee of the Company, such as conversion of group insurance. This Release does not amount to a waiver of any\nclaims for accrued, vested benefits under any employee benefit or pension plan of RELEASEES, subject to the terms and conditions of such plans\nand applicable law.\nEmployee acknowledges that this Agreement resolves any and all legal claims that Employee may have against the Company as of the\ndate of this Agreement, whether known or unknown.\n5. Employee represents and covenants that Employee will not communicate or disclose the terms of this Agreement to any persons other than\nany federal, state or local taxing authorities, Employee's immediate family, Employee's attorney or attorneys, and Employee's accountant or\naccountants, who will be instructed by Employee to agree to be bound by the confidential nature of this Agreement. Nothing herein is intended to\nlimit Employee's ability to disclose or discuss the tax treatment or tax structure of the payments made to Employee as necessary to address or clarify\nthe appropriate tax treatment of the payments to be made pursuant to Section 2. Employee recognizes and agrees that should it be determined,\nin\na\ncourt of law, that Employee violated this section, Employee shall be required to refund to the Company all monies payable under this Agreement, in\naddition to any other legal or equitable relief that may be available and awarded to the Company. Nothing in this section, or elsewhere in this\nAgreement, is intended to prevent or prohibit Employee from: (i) providing information regarding Employee's former employment relationship with\nthe Company, as may be required by law or legal process; or (ii) cooperating, participating, or assisting in any government entity investigation or\nproceeding.\n6.\nEmployee understands and agrees that in the course of employment with the Company, Employee may have acquired confidential\ninformation and trade secrets concerning the Company's business, its future plans and its methods of doing business, including, without limitation,\ninformation about its products, services, product development, customers, technology, financial circumstances, marketing, pricing, costs,\ncompensation and other matters (hereinafter collectively called "Trade Secrets").\nEmployee may not reveal or disclose, sell, use, lecture upon, or publish any such Trade Secrets, or authorize anyone else to do so at any time\nsubsequent to Employee's employment with the Company. Employee will return all copies and originals of the Company documents, files, lists and\nother information of a business nature to the Company immediately, (whether or not such includes Trade Secrets) and any future use of same\nby\nEmployee is prohibited.\n7. Employee and the Company mutually agree to refrain from making disparaging, defaming, derogatory, critical or negative comments\nregarding each other, the Company's products, services or officers, directors, employees or former employees of the Company with respect to any\npast, present or future issues, except if testifying truthfully in response to a lawfully served subpoena.\n8. Neither the negotiation, undertaking or signing of this Agreement constitutes or operates as an acknowledgment or admission that the\nCompany, or any person acting on behalf of the Company, has violated or failed to comply with any provisions of federal or state constitution,\nstatute, law, regulation, municipal ordinance, or principle of common law. This agreement is made voluntarily to provide an amicable conclusion\nto\nEmployee's employment relationship with the Company.\n9. Employee agrees and understands that the Company does not have, and will not have, any further obligations to provide Employee at any\ntime with any payment, benefit or consideration other than those recited in Section 2 above.\n10. Employee hereby agrees and recognizes that Employee's employment relationship with the Company has been permanently and\nirrevocably severed as of the June 15, 2007 Termination Date and that the Company has no obligation, contractual or otherwise, to hire, rehire or re-\nemploy Employee in the future.\n11. Employee agrees that Employee shall reasonably cooperate with the Company following the Termination Date to assist with legal\nproceedings with respect to matters for which Employee was responsible during Employee's employment with the Company.\n12. In signing this Agreement, Employee acknowledges that:\n(a) Employee has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which Employee\nacknowledges as adequate and satisfactory.\n(b) Employee has been advised by the Company to consult with an attorney before signing this Agreement;\n(c) Employee has been given a period of at least twenty-one (21) calendar days after the date Employee received this Agreement, within\nwhich to review and consider this Agreement, to discuss it with an attorney of Employee's own choosing, and to decide whether or not to\nsign this Agreement.\n(d) The Employee has consulted with an attorney of his own choosing during this time period.\n(e) In addition, for the period of seven (7) calendar days after the date Employee signs this Agreement ("Revocation Period"), Employee\nmay revoke it by delivering written notice of revocation to the Company by hand-delivery or by facsimile or e-mail transmission (and\nretaining proof of successful transmission) using the street, facsimile, or e-mail address to: Patricia A. Twomey, Vice President, Human\nResources, Orthovita Inc., 77 Great Valley Parkway, Malvern, PA, 610.640.9206 (facsimile), PTwomey@Orthovita.com (email); and\n(f) Neither the Company, nor any of its employees, agents, representatives, or attorneys has made any representations to Employee\nconcerning the terms or effects of this Agreement and other than those contained herein.\n13. In the event that any one or more provisions (or portion thereof) of this Agreement is held to be invalid, unlawful, or unenforceable for any\nreason, the invalid, unlawful, or unenforceable provision (or portion thereof) shall be construed or modified so as to provide the Company and\nAffiliates with the maximum protection that is valid, lawful and enforceable, consistent with the intent of the Company and Employee in entering\ninto this Agreement. If such provision (or portion thereof) cannot be construed or modified so as to be valid, lawful and enforceable, that provision\n(or portion thereof) shall be construed as narrowly as possible and shall be severed from the remainder of the Agreement (or provision), and the\nremainder shall remain in effect and be construed as broadly as possible, as if such invalid, unlawful or unenforceable provision (or portion thereof)\nhad never been contained in this Agreement.\n14. This Agreement shall take effect on the first day following the expiration of the Revocation Period, provided this Agreement has not been\nrevoked by Employee as provided in Section 12 above during such Revocation Period (the "Effective Date").\n15. It is agreed and understood that this Agreement contains and comprises the entire understanding of the parties and that there are no\nadditional or other promises, representations, terms or provisions other than those expressly contained herein. This Agreement shall not be modified\nexcept in writing signed by each of the parties. This Agreement supersedes all other prior agreements concerning the terms of Employee's\nemployment with the Company, except for the CDA as amended hereby.\n16. Employee agrees to the jurisdiction of any court in the Commonwealth of Pennsylvania over all disputes, which may arise involving this\nAgreement and Employee hereby consents to the assertion of personal jurisdiction over Employee by any such Court in any such action instituted by\nthe Company pursuant to this section. This Agreement and the obligations of the parties shall be construed, interpreted and enforced in accordance\nwith the laws of Pennsylvania without regard to choice of law provisions.\nI HAVE READ THIS AGREEMENT. I UNDERSTAND THAT I AM GIVING UP IMPORTANT RIGHTS PER SECTION 4,\nABOVE. I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY OF MY OWN CHOOSING DURING THE\nCONSIDERATION PERIOD, AND THAT THE COMPANY HAS ADVISED ME TO UNDERTAKE SUCH CONSULTATION BEFORE\nSIGNING THIS AGREEMENT. I SIGN THIS AGREEMENT FREELY AND VOLUNTARILY, WITHOUT DURESS OR COERCION.\nIN WITNESS WHEREOF, and intending to be legally bound and under seal, the parties have executed the foregoing Confidentiality\nSeparation Agreement and General Release and Amendment to Confidentiality and Non-Disclosure Agreement.\nDated: June 21, 2007\nBy: /s/ Donald L. Scanlan\nORTHOVITA, INC.\nDated: June 25, 2007\nBy: /s/ Antony Koblish\nPresident & CEO\nWitness: /s/ Patricia A. Twomey	EX-10.2 3 dex102.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.2\nConfidential Separation Agreement and General Release and Amendment to\nConfidentiality and Non-Disclosure Agreement\nThis Confidential Separation Agreement and General Release (hereafter “Agreement”) is entered into by and between Orthovita Inc.\n(hereafter “Orthovita” or “Company”), and Donald L. Scanlan (hereafter “Employee”). As used in this Agreement, “Company” shall include and\nencompass all of the past, present, or future parent, affiliated, related and/or subsidiary companies of Orthovita, and its past, present or future\ndirectors, shareholders, officers, employees, agents, attorneys and representatives.\nEMPLOYEE and ORTHOVITA agree to the following terms and conditions in full and final settlement of all matters in any way\nrelating to, or arising out of, EMPLOYEE’s employment and/or separation from employment with ORTHOVITA.\n1. Employee’s final day of employment with the Company will be Friday, June 15, 2007 (“Termination Date”), and Employee hereby resigns\nas of such date.\n2. Subject to Employee’s execution and nonrevocation of this Agreement and in consideration for Employee’s obligations and agreements\nhereunder, the Company will:\n(a) pay Employee a total of $218,000.00, payable as salary continuation for a period of 12 months, which is equivalent to 12\nmonths of salary continuation at Employee’s current semi-monthly salary of $9,083.33, minus all taxes and payroll\ndeductions authorized by law. These payments will commence with the Company’s next payroll period following the\nJune 15, 2007, Termination Date, provided that Employee has not revoked this Agreement prior to the Effective Date\n(hereinafter defined) of the Agreement. Amounts due under this paragraph 2(a) shall be payable in semi-monthly\ninstallments in accordance with Orthovita’s normal payroll cycle;\n(b) If EMPLOYEE chooses to continue his group medical and dental benefits under COBRA, ORTHOVITA will pay the\nCOBRA premiums for such medical/dental benefits through the twelve month period following the Agreement Date;\n(c) Orthovita will provide EMPLOYEE with a payment equal to any reasonable unreimbursed business expenses through\nJune 15, 2007 and any accrued, unused vacation days through the Agreement Termination Date; and\n(d) Orthovita acknowledges that Employee’s vested status in Orthovita’s matching contributions to Employee’s John Hancock\n401(k) Retirement Account is 66% and such vested percentage will remain intact, but that Employee’s plan account is\nvalued on a daily basis.\n(e) amend Employee’s non-compete provisions as specified in Section 3 herein below.\n3. The Company has elected to enforce against Employee his non-compete obligations provided for in Section 3 (a)—(d) of Employee’s\nConfidentiality and Non-Disclosure Agreement with the Company dated 1st of October 2004, attached hereto as Exhibit A, incorporated by\nreference and made part hereof in its entirety (“CDA”), provided that the Company and Employee agree that this Agreement amends Section 3 and\nSection 6 of the CDA, and except as explicitly stated herein, all other provisions in the CDA remain in full force and effect. Further, in the event that\nEmployee breaches the non-compete provisions of the CDA as modified hereby, the Company shall not be obligated to make the payments in\nSection 2 above. In consideration for the Company’s undertakings as described in Section 2 herein and in accordance with the provisions of this\nSection 3:\n(a) Employee agrees that upon execution of this Agreement, Employee will return all Company equipment, Company documents and\nany other Company property including all sales and marketing literature, in Employee’s possession, custody or control. Such\nCompany property includes any Company equipment and materials in Employee’s home;\n(b) Employee agrees to abide by the following Non-Compete Agreement:\n1) The “Non-Compete Ending Date” is June 15, 2008.\n2) “Competitive Areas” means bone grafting, surgical hemostasis, treatment of vertebral compression fractures, and bioactive\nstructural interbody fusion spine spacer applications.\n3) Commencing on the Employee’s June 15, 2007, Termination Date of employment with the Company, and continuing through\nand including the Non-Compete Ending Date of June 15, 2008, (the “Restriction Period”), Employee will not, without the Company’s express prior\nwritten consent, directly or indirectly own, manage, create, operate, sell, market, license, join, control, finance or participate in the ownership,\nmanagement, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant\nor otherwise with, or use or permit his name to be used in connection with, any person, business, firm, organization, enterprise or entity that\ndevelops, designs, manufactures, sells, licenses, markets or provides advice on any technologies, products or products in development in the\nCompetitive Areas (a “Competing Business”), or sell or license to, or develop for or with a Competing Business any technologies or products in the\nCompetitive Areas. Such products and technologies include, without limitation, those products and technologies which (i) the Company or any of its\ndivisions and/or subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed; (ii) have been disclosed to Employee verbally or\nin writing during the course of his employment, during any consulting arrangement or as of the Termination Date as being in the process of\ndevelopment, manufacturing, selling, licensing or marketing by the Company, its divisions and/or its affiliates; and (iii) to Employee’s knowledge,\nthe Company may be in the process of developing, manufacturing, selling, licensing or marketing now or through the Restriction Period.\nIt is recognized by Employee that the business of the Company, its divisions and/or its affiliates and Employee’s connection therewith\nhas been, is or will be involved in activity throughout the world, and that more limited geographical limitations on this non-competition covenant are\ntherefore not appropriate.\nThe foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than one percent of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses having a class of securities registered pursuant to the Securities\nExchange Act of 1934 (the “Exchange Act”), provided that such ownership represents a passive investment and that neither Employee nor any group\nof persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising his rights as a shareholder, or seeks to do any of the foregoing.\n4. Employee on behalf of himself and his successors, assigns, heirs and legal representatives (“Releasors”), hereby voluntarily and knowingly\nremises, releases, acquits and forever discharges the Company and its representatives, its parent, affiliated and subsidiary corporations, and its and\ntheir predecessors, successors, affiliates, officers, directors, agents, assigns, employees, attorneys, employee benefit plans, employee benefit plan\nadministrators, and employee benefit plan fiduciaries (“Releasees”), from any and all claims, rights, expenses, debts, demands, costs, contracts,\nliabilities, obligations, actions, and causes of action of any nature, known or unknown, based upon any fact, circumstance, or event occurring or\nexisting at or prior to Employee’s execution of this Agreement, including, but not limited to, any and all matters relating to Employee’s employment\nwith the Company or the termination of that employment. This Release specifically includes, but is not limited to, any claims or actions arising out\nof or during Employee’s employment with the Company and/or separation of employment, including any claim under the Age Discrimination in\nEmployment Act (“ADEA”), 29 U.S .C. §621 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S .C. §2000e et seq.; the Americans with\nDisabilities Act, 42 U.S .C. §12101 et seq.; the Employee Retirement Income Security Act, 29 U.S .C. §1101 et seq.; 42 U.S .C. §1981 (“Section\n1981”); the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §951 et seq.; the Pennsylvania Wage Payment and Collection Law (“WPCL”), 43\nP.S. §260.1 et seq.; the Family and Medical Leave Act (“FMLA”) and any and all other federal, state or local laws, and any common law claims now\nor hereafter recognized, as well as all claims for counsel fees and costs. The claims being waived and released include, without limitation, (a) any\nand all claims arising from or relating to Employee’s recruitment, hire, employment and termination of employment with the Company; (b) any and\nall claims of wrongful discharge, emotional distress,\ndefamation, misrepresentation, fraud, detrimental reliance, breach of contractual obligations, promissory estoppel, negligence, assault and battery,\nviolation of public policy; (c) any and all claims of unlawful discrimination, harassment and retaliation under applicable federal, state and local laws\nand regulations; (d) any and all claims of violation of any federal, state, and local law relating to recruitment, hiring, terms and conditions of\nemployment, and termination of employment; and (e) any and all claims for monetary damages and any other forms of personal relief. This Release\nis not intended to apply to claims that cannot be waived by private agreement under applicable law.\nThis release covers any claims Employee may have up to and including the date of this Agreement, but does not cover claims that arise\nafter the date of this Agreement or those relating to the enforcement of this Agreement, nor will it affect those benefits which are intended to survive\nEmployee’s termination as an Employee of the Company, such as conversion of group insurance. This Release does not amount to a waiver of any\nclaims for accrued, vested benefits under any employee benefit or pension plan of RELEASEES, subject to the terms and conditions of such plans\nand applicable law.\nEmployee acknowledges that this Agreement resolves any and all legal claims that Employee may have against the Company as of the\ndate of this Agreement, whether known or unknown.\n5. Employee represents and covenants that Employee will not communicate or disclose the terms of this Agreement to any persons other than\nany federal, state or local taxing authorities, Employee’s immediate family, Employee’s attorney or attorneys, and Employee’s accountant or\naccountants, who will be instructed by Employee to agree to be bound by the confidential nature of this Agreement. Nothing herein is intended to\nlimit Employee’s ability to disclose or discuss the tax treatment or tax structure of the payments made to Employee as necessary to address or clarify\nthe appropriate tax treatment of the payments to be made pursuant to Section 2. Employee recognizes and agrees that should it be determined, in a\ncourt of law, that Employee violated this section, Employee shall be required to refund to the Company all monies payable under this Agreement, in\naddition to any other legal or equitable relief that may be available and awarded to the Company. Nothing in this section, or elsewhere in this\nAgreement, is intended to prevent or prohibit Employee from: (i) providing information regarding Employee’s former employment relationship with\nthe Company, as may be required by law or legal process; or (ii) cooperating, participating, or assisting in any government entity investigation or\nproceeding.\n6. Employee understands and agrees that in the course of employment with the Company, Employee may have acquired confidential\ninformation and trade secrets concerning the Company’s business, its future plans and its methods of doing business, including, without limitation,\ninformation about its products, services, product development, customers, technology, financial circumstances, marketing, pricing, costs,\ncompensation and other matters (hereinafter collectively called “Trade Secrets”).\nEmployee may not reveal or disclose, sell, use, lecture upon, or publish any such Trade Secrets, or authorize anyone else to do so at any time\nsubsequent to Employee’s employment with the Company. Employee will return all copies and originals of the Company documents, files, lists and\nother information of a business nature to the Company immediately, (whether or not such includes Trade Secrets) and any future use of same by\nEmployee is prohibited.\n7. Employee and the Company mutually agree to refrain from making disparaging, defaming, derogatory, critical or negative comments\nregarding each other, the Company’s products, services or officers, directors, employees or former employees of the Company with respect to any\npast, present or future issues, except if testifying truthfully in response to a lawfully served subpoena.\n8. Neither the negotiation, undertaking or signing of this Agreement constitutes or operates as an acknowledgment or admission that the\nCompany, or any person acting on behalf of the Company, has violated or failed to comply with any provisions of federal or state constitution,\nstatute, law, regulation, municipal ordinance, or principle of common law. This agreement is made voluntarily to provide an amicable conclusion to\nEmployee’s employment relationship with the Company.\n9. Employee agrees and understands that the Company does not have, and will not have, any further obligations to provide Employee at any\ntime with any payment, benefit or consideration other than those recited in Section 2 above.\n10. Employee hereby agrees and recognizes that Employee’s employment relationship with the Company has been permanently and\nirrevocably severed as of the June 15, 2007 Termination Date and that the Company has no obligation, contractual or otherwise, to hire, rehire or re-\nemploy Employee in the future.\n11. Employee agrees that Employee shall reasonably cooperate with the Company following the Termination Date to assist with legal\nproceedings with respect to matters for which Employee was responsible during Employee’s employment with the Company.\n12. In signing this Agreement, Employee acknowledges that:\n(a) Employee has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which Employee\nacknowledges as adequate and satisfactory.\n(b) Employee has been advised by the Company to consult with an attorney before signing this Agreement;\n(c) Employee has been given a period of at least twenty-one (21) calendar days after the date Employee received this Agreement, within\nwhich to review and consider this Agreement, to discuss it with an attorney of Employee’s own choosing, and to decide whether or not to\nsign this Agreement.\n(d) The Employee has consulted with an attorney of his own choosing during this time period.\n(e) In addition, for the period of seven (7) calendar days after the date Employee signs this Agreement (“Revocation Period”), Employee\nmay revoke it by delivering written notice of revocation to the Company by hand-delivery or by facsimile or e-mail transmission (and\nretaining proof of successful transmission) using the street, facsimile, or e-mail address to: Patricia A. Twomey, Vice President, Human\nResources, Orthovita Inc., 77 Great Valley Parkway, Malvern, PA, 610.640 .9206 (facsimile), PTwomey@Orthovita.com (email); and\n(f) Neither the Company, nor any of its employees, agents, representatives, or attorneys has made any representations to Employee\nconcerning the terms or effects of this Agreement and other than those contained herein.\n13. In the event that any one or more provisions (or portion thereof) of this Agreement is held to be invalid, unlawful, or unenforceable for any\nreason, the invalid, unlawful, or unenforceable provision (or portion thereof) shall be construed or modified so as to provide the Company and\nAffiliates with the maximum protection that is valid, lawful and enforceable, consistent with the intent of the Company and Employee in entering\ninto this Agreement. If such provision (or portion thereof) cannot be construed or modified so as to be valid, lawful and enforceable, that provision\n(or portion thereof) shall be construed as narrowly as possible and shall be severed from the remainder of the Agreement (or provision), and the\nremainder shall remain in effect and be construed as broadly as possible, as if such invalid, unlawful or unenforceable provision (or portion thereof)\nhad never been contained in this Agreement.\n14. This Agreement shall take effect on the first day following the expiration of the Revocation Period, provided this Agreement has not been\nrevoked by Employee as provided in Section 12 above during such Revocation Period (the “Effective Date”).\n15. It is agreed and understood that this Agreement contains and comprises the entire understanding of the parties and that there are no\nadditional or other promises, representations, terms or provisions other than those expressly contained herein. This Agreement shall not be modified\nexcept in writing signed by each of the parties. This Agreement supersedes all other prior agreements concerning the terms of Employee’s\nemployment with the Company, except for the CDA as amended hereby.\n16. Employee agrees to the jurisdiction of any court in the Commonwealth of Pennsylvania over all disputes, which may arise involving this\nAgreement and Employee hereby consents to the assertion of personal jurisdiction over Employee by any such Court in any such action instituted by\nthe Company pursuant to this section. This Agreement and the obligations of the parties shall be construed, interpreted and enforced in accordance\nwith the laws of Pennsylvania without regard to choice of law provisions.\nI HAVE READ THIS AGREEMENT. I UNDERSTAND THAT I AM GIVING UP IMPORTANT RIGHTS PER SECTION 4,\nABOVE. I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY OF MY OWN CHOOSING DURING THE\nCONSIDERATION PERIOD, AND THAT THE COMPANY HAS ADVISED ME TO UNDERTAKE SUCH CONSULTATION BEFORE\nSIGNING THIS AGREEMENT. I SIGN THIS AGREEMENT FREELY AND VOLUNTARILY, WITHOUT DURESS OR COERCION.\nIN WITNESS WHEREOF, and intending to be legally bound and under seal, the parties have executed the foregoing Confidentiality\nSeparation Agreement and General Release and Amendment to Confidentiality and Non-Disclosure Agreement.\nDated: June 21, 2007\nBy: /s/ Donald L. Scanlan\nORTHOVITA, INC.\nDated: June 25, 2007\nBy: /s/ Antony Koblish\nPresident & CEO\nWitness: /s/ Patricia A. Twomey
f6cf95250272fd7f3fd767819ee11255.pdf	effective_date jurisdiction party term	EX-10.16 21 u98691exv10w16.txt EX-10.16 CONFIDENTIALITY & NON-COMPETITION AGREET EXHIBIT\n10.16 CONFIDENTIALITY AND NON-COMPETITION AGREEMENT This Confidentiality and Non-Competition\nAgreement (the "Agreement") is made as of this 10th day of September 2003 ("Effective Date") by and between\nCtrip.com International, Ltd. (the "Company") and Qi Ji (the "Director"). The Company and the Director are hereinafter\nreferred to individually as a "Party" and collectively as the "Parties." WHEREAS, the Director is a member of the\nCompany's Board of Directors, and also a principal shareholder of most of the related entities of the Company in China\n(excluding the Company's subsidiaries) (collectively, the "Related Chinese Entities"); WHEREAS, both the Director and\nthe Company expressly acknowledge and agree that the sole purpose of the Related Chinese Entities is to further the\nbusiness purposes of the Company; and WHEREAS, in light of the Director's fiduciary relationship with the Company\nand in consideration for the Director's agreement to enter into this Agreement with the Company, the Company has\nassisted and will assist in the capitalization and operation of the Related Chinese Entities. NOW, THEREFORE, in\nconsideration of the premises and of the mutual covenants and agreements set forth below, the Parties agree as follows: I.\nCONFIDENTIALITY 1.1 The Director shall keep secret and shall not at any time use for Director's own or any third\nparty's advantage, or reveal to any person, company, organization or any other entity, and shall use the Director's best\nendeavors to prevent the publication or disclosure of, any and all Confidential Information (as defined below). 1.2 If the\nDirector breaches his obligation of confidentiality hereunder, the Director shall be liable to the Company for all damages\n(direct or consequential) incurred as a result of the Director's breach. 1.3 The restrictions in this Article I shall not apply\nto any disclosure or use authorized by the Company or required by law. 1.4 "Confidential Information" shall mean\ninformation relating to the business, customers, products and affairs of the Company (including without limitation,\nmarketing information) deemed or treated confidential by the Company, or which the Director knows or ought\nreasonably to have known to be confidential, and trade secrets, including without limitation designs, processes, pricing\npolicies, methods, inventions, technology, technical data, financial information and know-how relating to the business of\nthe Company. 1.5 For purposes of Articles I and II of this Agreement, the Company shall include all subsidiaries of the\nCompany as well as the Related Chinese Entities. EXHIBIT 10.16 II . NON-COMPETITION 2.l The Director agrees that\nhe shall not engage in any business directly competitive with that carried on by the Company, provided that nothing in\nthis clause shall preclude the Director from holding or being otherwise interested in any shares or other securities of any\ncompany, any part of which is listed or dealt in on any stock exchange or recognized securities market anywhere, and the\nDirector shall notify the Company in writing of his interest in such shares or securities in a timely manner and with such\ndetails and particulars as the Company may reasonably require. 2.2 In consideration of the Company's assistance in the\ncapitalization and operation of the Related Chinese Entities, the Director hereby agrees that during the period he is a\nshareholder of any of the Related Chinese Entities and for a period of five (5) years following the termination of this\nAgreement: (a) Director shall not approach clients, customers, suppliers or contacts of the Company or other persons or\nentities introduced to Director in Director's capacity as a director or shareholder of the Company for the purposes of\ndoing business with such persons or entities and will not interfere with the business relationship between the Company\nand such persons and/or entities; (b) unless expressly consented to by the Company, Director will not provide services as\na director or otherwise for any competitor of the Company in China, or engage, whether as principal, partner, licensor or\notherwise, in any business which is in direct or indirect competition with the business of the Company; and (c) unless\nexpressly consented to by the Company, Director will not seek directly or indirectly, by the offer of alternative\nemployment or other inducement whatsoever, to solicit the services of any employee of the Company employed as at the\ndate of termination of this Agreement, or in the year preceding such termination. 2.3 The provisions provided in Article\nII shall be separate and severable and enforceable independently of each other and independent of any other provision of\nthis Agreement. In the event that any provision of this Article II should be found to be void under applicable laws and\nregulations but would be valid if some part thereof were deleted or the period or area of application reduced, such\nprovisions shall apply with such modification as may be necessary to make them valid and effective. III. TERM. This\nAgreement shall remain in full force and effect until both Parties hereto agree to terminate it in writing. IV.\nMISCELLANEOUS 4.1 Binding Effect. This Agreement will be binding upon and inure to the benefit of any successor\nof the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of\nthis Agreement for all 2 EXHIBIT 10.16 purposes. For this purpose, "successor" means any person, company,\norganization or other entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires\nall or substantially all of the assets or business of the Company. 4.2 Governing Law. This Agreement shall be governed\nby and construed in accordance with the laws of New York, USA, without conflicts of laws principles thereof. 4.3\nSeverability. In the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal\nor unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining\nprovisions contained herein shall not in any way be affected or impaired thereby. 4.4 Entire Agreement. This Agreement\nconstitutes the entire agreement and understanding between the Parties and supersedes all other oral and written\nagreements between the Company and the Director regarding the subject matter hereof. The Director acknowledges that\nhe has not entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set\nforth in this Agreement. 4.5 Notice. Any notice to be given under this Agreement to the Director may be served by being\nhanded to Director personally or by being sent by recorded delivery first class post to Director at Director's usual or last\nknown address; and any notice to be given to the Company may be served by being left at or by being sent by recorded\ndelivery first class post to its registered office. Any notice served by post shall be deemed to have been served on the day\n(excluding Sundays and statutory holidays) next following the date of posting and in proving such service it shall be\nsufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded\ndelivery first class post. 4.6 Headings. The headings in this Agreement are for the convenience of the Parties hereto and\nshall not be deemed a substantive part of this Agreement. 4.7 Amendment. No amendment to the terms of this\nAgreement shall be valid unless in writing and signed by both Parties hereto. 4.8 Counterparts. This Agreement may be\nsigned in two (2) counterparts and each counterpart shall be deemed to be an original. [SIGNATURE PAGE FOLLOWS]\n3 EXHIBIT 10.16 IN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd. DIRECTOR Signature: /s/ Signature: /s/ Qi Ji ---------------------- --------------------------\nName: Name: Qi Ji --------------------------- ------------------------------- 4	EX-10.16 21 u98691exv10w16.txt EX-10.16 CONFIDENTIALITY & NON-COMPETITION AGREET EXHIBIT\n10.16 CONFIDENTIALITY AND NON-COMPETITION AGREEMENT This Confidentiality and Non-Competition\nAgreement (the "Agreement") is made as of this 10th day of September 2003 ("Effective Date") by and between\nCtrip.com International, Ltd. (the "Company") and Qi Ji (the "Director"). The Company and the Director are hereinafter\nreferred to individually as a "Party" and collectively as the "Parties." WHEREAS, the Director is a member of the\nCompany's Board of Directors, and also a principal shareholder of most of the related entities of the Company in China\n(excluding the Company's subsidiaries) (collectively, the "Related Chinese Entities"); WHEREAS, both the Director and\nthe Company expressly acknowledge and agree that the sole purpose of the Related Chinese Entities is to further the\nbusiness purposes of the Company; and WHEREAS, in light of the Director's fiduciary relationship with the Company\nand in consideration for the Director's agreement to enter into this Agreement with the Company, the Company has\nassisted and will assist in the capitalization and operation of the Related Chinese Entities. NOW, THEREFORE, in\nconsideration of the premises and of the mutual covenants and agreements set forth below, the Parties agree as follows: 1.\nCONFIDENTIALITY 1.1 The Director shall keep secret and shall not at any time use for Director's own or any third\nparty's advantage, or reveal to any person, company, organization or any other entity, and shall use the Director's best\nendeavors to prevent the publication or disclosure of, any and all Confidential Information (as defined below). 1.2 If the\nDirector breaches his obligation of confidentiality hereunder, the Director shall be liable to the Company for all damages\n(direct or consequential) incurred as a result of the Director's breach. 1.3 The restrictions in this Article I shall not apply\nto any disclosure or use authorized by the Company or required by law. 1.4 "Confidential Information" shall mean\ninformation relating to the business, customers, products and affairs of the Company (including without limitation,\nmarketing information) deemed or treated confidential by the Company, or which the Director knows or ought\nreasonably to have known to be confidential, and trade secrets, including without limitation designs, processes, pricing\npolicies, methods, inventions, technology, technical data, financial information and know-how relating to the business of\nthe Company. 1.5 For purposes of Articles I and II of this Agreement, the Company shall include all subsidiaries of the\nCompany as well as the Related Chinese Entities. EXHIBIT 10.16 II. NON-COMPETITION 2.1 The Director agrees that\nhe shall not engage in any business directly competitive with that carried on by the Company, provided that nothing in\nthis clause shall preclude the Director from holding or being otherwise interested in any shares or other securities of any\ncompany, any part of which is listed or dealt in on any stock exchange or recognized securities market anywhere, and the\nDirector shall notify the Company in writing of his interest in such shares or securities in a timely manner and with such\ndetails and particulars as the Company may reasonably require. 2.2 In consideration of the Company's assistance in the\ncapitalization and operation of the Related Chinese Entities, the Director hereby agrees that during the period he is a\nshareholder of any of the Related Chinese Entities and for a period of five (5) years following the termination of this\nAgreement: (a) Director shall not approach clients, customers, suppliers or contacts of the Company or other persons or\nentities introduced to Director in Director's capacity as a director or shareholder of the Company for the purposes of\ndoing business with such persons or entities and will not interfere with the business relationship between the Company\nand such persons and/or entities; (b) unless expressly consented to by the Company, Director will not provide services as\na director or otherwise for any competitor of the Company in China, or engage, whether as principal, partner, licensor or\notherwise, in any business which is in direct or indirect competition with the business of the Company; and (c) unless\nexpressly consented to by the Company, Director will not seek directly or indirectly, by the offer of alternative\nemployment or other inducement whatsoever, to solicit the services of any employee of the Company employed as at the\ndate of termination of this Agreement, or in the year preceding such termination. 2.3 The provisions provided in Article\nIT shall be separate and severable and enforceable independently of each other and independent of any other provision of\nthis Agreement. In the event that any provision of this Article II should be found to be void under applicable laws and\nregulations but would be valid if some part thereof were deleted or the period or area of application reduced, such\nprovisions shall apply with such modification as may be necessary to make them valid and effective. III. TERM. This\nAgreement shall remain in full force and effect until both Parties hereto agree to terminate it in writing. IV.\nMISCELLANEOUS 4.1 Binding Effect. This Agreement will be binding upon and inure to the benefit of any successor\nof the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of\nthis Agreement for all 2 EXHIBIT 10.16 purposes. For this purpose, "successor" means any person, company,\norganization or other entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires\nall or substantially all of the assets or business of the Company. 4.2 Governing Law. This Agreement shall be governed\nby and construed in accordance with the laws of New York, USA, without conflicts of laws principles thereof. 4.3\nSeverability. In the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal\nor unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining\nprovisions contained herein shall not in any way be affected or impaired thereby. 4.4 Entire Agreement. This Agreement\nconstitutes the entire agreement and understanding between the Parties and supersedes all other oral and written\nagreements between the Company and the Director regarding the subject matter hereof. The Director acknowledges that\nhe has not entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set\nforth in this Agreement. 4.5 Notice. Any notice to be given under this Agreement to the Director may be served by being\nhanded to Director personally or by being sent by recorded delivery first class post to Director at Director's usual or last\nknown address; and any notice to be given to the Company may be served by being left at or by being sent by recorded\ndelivery first class post to its registered office. Any notice served by post shall be deemed to have been served on the day\n(excluding Sundays and statutory holidays) next following the date of posting and in proving such service it shall be\nsufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded\ndelivery first class post. 4.6 Headings. The headings in this Agreement are for the convenience of the Parties hereto and\nshall not be deemed a substantive part of this Agreement. 4.7 Amendment. No amendment to the terms of this\nAgreement shall be valid unless in writing and signed by both Parties hereto. 4.8 Counterparts. This Agreement may be\nsigned in two (2) counterparts and each counterpart shall be deemed to be an original. [SIGNATURE PAGE FOLLOWS]\n3 EXHIBIT 10.16 IN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd. DIRECTOR Signature: /s/ Signature: /s/ Qi Ji -==--====mmmmmmmmmmmme oo\nName: Name: Qi Ji —=--=mmmmm oo e e e 4	EX-10.16 21 EX-10.16 CONFIDENTIALITY & NON-COMPETITION AGREET EXHIBIT\n10.16 CONFIDENTIALITY AND NON-COMPETITION AGREEMENT This Confidentiality and Non-Competition\nAgreement (the "Agreement") is made as of this 10th day of September 2003 ("Effective Date") by and between\nCtrip.com International, Ltd. (the "Company") and Qi Ji (the "Director"). The Company and the Director are hereinafter\nreferred to individually as a "Party" and collectively as the "Parties." WHEREAS, the Director is a member of the\nCompany's Board of Directors, and also a principal shareholder of most of the related entities of the Company in China\n(excluding the Company's subsidiaries) (collectively, the "Related Chinese Entities") WHEREAS, both the Director and\nthe Company expressly acknowledge and agree that the sole purpose of the Related Chinese Entities is to further the\nbusiness purposes of the Company; and WHEREAS, in light of the Director's fiduciary relationship with the Company\nand in consideration for the Director's agreement to enter into this Agreement with the Company, the Company has\nassisted and will assist in the capitalization and operation of the Related Chinese Entities. NOW, THEREFORE, in\nconsideration of the premises and of the mutual covenants and agreements set forth below, the Parties agree as follows:\nI.\nCONFIDENTIALITY\n1.1\nThe\nDirector\nshall\nkeep\nsecret\nand\nshall\nnot\nat\nany\ntime\nuse\nfor\nDirector's\nown\nor\nany\nthird\nparty's advantage, or reveal to any person, company, organization or any other entity, and shall use the Director's best\nendeavors to prevent the publication or disclosure of, any and all Confidential Information (as defined below) 1.2 If the\nDirector breaches his obligation of confidentiality hereunder, the Director shall be liable to the Company for all damages\n(direct or consequential) incurred as a result of the Director's breach. 1.3 The restrictions in this Article I shall not apply\nto\nany\ndisclosure or use authorized by the Company or required by law. 1.4 "Confidential Information" shall mean\ninformation relating to the business, customers, products and affairs of the Company (including without limitation,\nmarketing information) deemed or treated confidential by the Company, or which the Director knows or ought\nreasonably to have known to be confidential, and trade secrets, including without limitation designs, processes, pricing\npolicies, methods, inventions, technology, technical data, financial information and know-how relating to the business of\nthe Company. 1.5 For purposes of Articles I and II of this Agreement, the Company shall include all subsidiaries of the\nCompany as well as the Related Chinese Entities. EXHIBIT 10.16 II. NON-COMPETITION 2.1 The Director agrees that\nhe shall not engage in any business directly competitive with that carried on by the Company, provided that nothing in\nthis clause shall preclude the Director from holding or being otherwise interested in any shares or other securities of any\ncompany, any part of which is listed or dealt in on any stock exchange or recognized securities market anywhere, and the\nDirector shall notify the Company in writing of his interest in such shares or securities in a timely manner and with such\ndetails and particulars as the Company may reasonably require. 2.2 In consideration of the Company's assistance in the\ncapitalization and operation of the Related Chinese Entities, the Director hereby agrees that during the period he is a\nshareholder of any of the Related Chinese Entities and for a period of five (5) years following the termination\nof\nthis\nAgreement: (a) Director shall not approach clients, customers, suppliers or contacts of the Company or other persons\nor\nentities introduced to Director in Director's capacity as a director or shareholder of the Company for the purposes of\ndoing business with such persons or entities and will not interfere with the business relationship between the Company\nand such persons and/or entities; (b) unless expressly consented to by the Company, Director will not provide services as\na\ndirector or otherwise for any competitor of the Company in China, or engage, whether as principal, partner,\nlicensor\nor\notherwise, in any business which is in direct or indirect competition with the business of the Company; and (c) unless\nexpressly consented to by the Company, Director will not seek directly or indirectly, by the offer of alternative\nemployment or other inducement whatsoever, to solicit the services of any employee of the Company employed as at the\ndate of termination of this Agreement, or in the year preceding such termination. 2.3 The provisions provided in Article\nII shall be separate and severable and enforceable independently of each other and independent of any other provision of\nthis Agreement. In the event that any provision of this Article II should be found to be void under applicable laws and\nregulations but would be valid if some part thereof were deleted or the period or area of application reduced, such\nprovisions shall apply with such modification as may be necessary to make them valid and effective. III. TERM. This\nAgreement shall remain in full force and effect until both Parties hereto agree to terminate it in writing IV.\nMISCELLANEOUS 4.1 Binding Effect. This Agreement will be binding upon and inure to the benefit of any successor\nof the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of\nthis Agreement for all 2 EXHIBIT 10.16 purposes. For this purpose, "successor" means any person, company,\norganization or other entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires\nall or substantially all of the assets or business of the Company. 4.2 Governing Law. This Agreement shall be governed\nby and construed in accordance with the laws of New York, USA, without conflicts of laws principles thereof. 4.3\nSeverability. In the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal\nor unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining\nprovisions contained herein shall not in any way be affected or impaired thereby. 4.4 Entire Agreement. This Agreement\nconstitutes the entire agreement and understanding between the Parties and supersedes all other oral and written\nagreements between the Company and the Director regarding the subject matter hereof. The Director acknowledges that\nhe has not entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set\nforth in this Agreement. 4.5 Notice. Any notice to be given under this Agreement to the Director may be served by being\nhanded to Director personally or by being sent by recorded delivery first class post to Director at Director's usual or last\nknown address; and any notice to be given to the Company may be served by being left at or by being sent by recorded\ndelivery first class post to its registered office. Any notice served by post shall be deemed to have been served on the day\n(excluding Sundays and statutory holidays) next following the date of posting and in proving such service it shall be\nsufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded\ndelivery first class post. 4.6 Headings. The headings in this Agreement are for the convenience of the Parties hereto and\nshall not be deemed a substantive part of this Agreement. 4.7 Amendment. No amendment to the terms of this\nAgreement shall be valid unless in writing and signed by both Parties hereto. 4.8 Counterparts. This Agreement may be\nsigned in two (2) counterparts and each counterpart shall be deemed to be an original. [SIGNATURE PAGE FOLLOWS]\n3 EXHIBIT 10.16 IN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd. DIRECTOR Signature: /s/ Signature: /s/ Qi Ji\nName: Name: Qi Ji\n4	EX-10.16 21 u98691exv10w16.txt EX-10.16 CONFIDENTIALITY & NON-COMPETITION AGREET EXHIBIT\n10.16 CONFIDENTIALITY AND NON-COMPETITION AGREEMENT This Confidentiality and Non-Competition\nAgreement (the "Agreement") is made as of this 10th day of September 2003 ("Effective Date") by and between\nCtrip.com International, Ltd. (the "Company") and Qi Ji (the "Director"). The Company and the Director are hereinafter\nreferred to individually as a "Party" and collectively as the "Parties." WHEREAS, the Director is a member of the\nCompany's Board of Directors, and also a principal shareholder of most of the related entities of the Company in China\n(excluding the Company's subsidiaries) (collectively, the "Related Chinese Entities"); WHEREAS, both the Director and\nthe Company expressly acknowledge and agree that the sole purpose of the Related Chinese Entities is to further the\nbusiness purposes of the Company; and WHEREAS, in light of the Director's fiduciary relationship with the Company\nand in consideration for the Director's agreement to enter into this Agreement with the Company, the Company has\nassisted and will assist in the capitalization and operation of the Related Chinese Entities. NOW, THEREFORE, in\nconsideration of the premises and of the mutual covenants and agreements set forth below, the Parties agree as follows: I.\nCONFIDENTIALITY 1.1 The Director shall keep secret and shall not at any time use for Director's own or any third\nparty's advantage, or reveal to any person, company, organization or any other entity, and shall use the Director's best\nendeavors to prevent the publication or disclosure of, any and all Confidential Information (as defined below). 1.2 If the\nDirector breaches his obligation of confidentiality hereunder, the Director shall be liable to the Company for all damages\n(direct or consequential) incurred as a result of the Director's breach. 1.3 The restrictions in this Article I shall not apply\nto any disclosure or use authorized by the Company or required by law. 1.4 "Confidential Information" shall mean\ninformation relating to the business, customers, products and affairs of the Company (including without limitation,\nmarketing information) deemed or treated confidential by the Company, or which the Director knows or ought\nreasonably to have known to be confidential, and trade secrets, including without limitation designs, processes, pricing\npolicies, methods, inventions, technology, technical data, financial information and know-how relating to the business of\nthe Company. 1.5 For purposes of Articles I and II of this Agreement, the Company shall include all subsidiaries of the\nCompany as well as the Related Chinese Entities. EXHIBIT 10.16 II . NON-COMPETITION 2.l The Director agrees that\nhe shall not engage in any business directly competitive with that carried on by the Company, provided that nothing in\nthis clause shall preclude the Director from holding or being otherwise interested in any shares or other securities of any\ncompany, any part of which is listed or dealt in on any stock exchange or recognized securities market anywhere, and the\nDirector shall notify the Company in writing of his interest in such shares or securities in a timely manner and with such\ndetails and particulars as the Company may reasonably require. 2.2 In consideration of the Company's assistance in the\ncapitalization and operation of the Related Chinese Entities, the Director hereby agrees that during the period he is a\nshareholder of any of the Related Chinese Entities and for a period of five (5) years following the termination of this\nAgreement: (a) Director shall not approach clients, customers, suppliers or contacts of the Company or other persons or\nentities introduced to Director in Director's capacity as a director or shareholder of the Company for the purposes of\ndoing business with such persons or entities and will not interfere with the business relationship between the Company\nand such persons and/or entities; (b) unless expressly consented to by the Company, Director will not provide services as\na director or otherwise for any competitor of the Company in China, or engage, whether as principal, partner, licensor or\notherwise, in any business which is in direct or indirect competition with the business of the Company; and (c) unless\nexpressly consented to by the Company, Director will not seek directly or indirectly, by the offer of alternative\nemployment or other inducement whatsoever, to solicit the services of any employee of the Company employed as at the\ndate of termination of this Agreement, or in the year preceding such termination. 2.3 The provisions provided in Article\nII shall be separate and severable and enforceable independently of each other and independent of any other provision of\nthis Agreement. In the event that any provision of this Article II should be found to be void under applicable laws and\nregulations but would be valid if some part thereof were deleted or the period or area of application reduced, such\nprovisions shall apply with such modification as may be necessary to make them valid and effective. III. TERM. This\nAgreement shall remain in full force and effect until both Parties hereto agree to terminate it in writing. IV.\nMISCELLANEOUS 4.1 Binding Effect. This Agreement will be binding upon and inure to the benefit of any successor\nof the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of\nthis Agreement for all 2 EXHIBIT 10.16 purposes. For this purpose, "successor" means any person, company,\norganization or other entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires\nall or substantially all of the assets or business of the Company. 4.2 Governing Law. This Agreement shall be governed\nby and construed in accordance with the laws of New York, USA, without conflicts of laws principles thereof. 4.3\nSeverability. In the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal\nor unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining\nprovisions contained herein shall not in any way be affected or impaired thereby. 4.4 Entire Agreement. This Agreement\nconstitutes the entire agreement and understanding between the Parties and supersedes all other oral and written\nagreements between the Company and the Director regarding the subject matter hereof. The Director acknowledges that\nhe has not entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set\nforth in this Agreement. 4.5 Notice. Any notice to be given under this Agreement to the Director may be served by being\nhanded to Director personally or by being sent by recorded delivery first class post to Director at Director's usual or last\nknown address; and any notice to be given to the Company may be served by being left at or by being sent by recorded\ndelivery first class post to its registered office. Any notice served by post shall be deemed to have been served on the day\n(excluding Sundays and statutory holidays) next following the date of posting and in proving such service it shall be\nsufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded\ndelivery first class post. 4.6 Headings. The headings in this Agreement are for the convenience of the Parties hereto and\nshall not be deemed a substantive part of this Agreement. 4.7 Amendment. No amendment to the terms of this\nAgreement shall be valid unless in writing and signed by both Parties hereto. 4.8 Counterparts. This Agreement may be\nsigned in two (2) counterparts and each counterpart shall be deemed to be an original. [SIGNATURE PAGE FOLLOWS]\n3 EXHIBIT 10.16 IN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd. DIRECTOR Signature: /s/ Signature: /s/ Qi Ji ---------------------- --------------------------\nName: Name: Qi Ji --------------------------- ------------------------------- 4
f87b56cd42d82dfd2ec1356a8c187e4e.pdf	effective_date jurisdiction party term	EX-10 .27 7 ex1027formofenterprisenon- . htm EXHIBIT 10.27\nCVS Pharmacy, Inc.\nRestrictive Covenant Agreement\nI, _____________________________________, enter into this Restrictive Covenant Agreement (“Agreement”) with CVS\nPharmacy, Inc. (“CVS”), which is effective as of the date I sign the Agreement (the “Effective Date”). In consideration of the\nmutual promises in this Agreement, the parties agree as follows:\n1.\nConsideration for Agreement. In connection with my duties and responsibilities at CVS Caremark Corporation or one\nof its subsidiaries or affiliates (collectively, the “Corporation”), the Corporation will provide me with Confidential Information\nand/or access to the Corporation’s customers and clients and the opportunity to develop and maintain relationships and goodwill\nwith them. In addition, the Corporation has awarded me restricted stock units contingent on the execution of this Agreement and\ncompliance with its terms.\n2.\nNon-Competition. During my employment by the Corporation and during the Non-Competition Period following the\ntermination of my employment for any reason, I will not, directly or indirectly, engage in Competition or provide Consulting or\nAudit Services within the Restricted Area.\na. Competition. Engaging in “Competition” means providing services to a Competitor of the Corporation (whether as an\nemployee, independent contractor, consultant, principal, agent, partner, officer, director, investor, or shareholder, except as a\nshareholder of less than one percent of a publicly traded company) that: (i) are the same or similar in function or purpose to the\nservices I provided to the Corporation during the last two years of my employment by the Corporation, or (ii) will likely result in\nthe disclosure of Confidential Information to a Competitor or the use of Confidential Information on behalf of a Competitor. If a\nrepresentative of the Corporation, during my employment or the Non-Competition Period, requests that I identify the company or\nbusiness to which I will be or am providing services, or with which I will be or am employed, and requests that I provide\ninformation about the services that I am or will be providing to such entity, I shall provide the Corporation with a written statement\ndetailing the identity of the entity and the nature of the services that I am or will be providing to such entity with sufficient detail to\nallow the Corporation to independently assess whether I am or will be in violation of this Agreement. Such statement shall be\ndelivered to the Corporation’s Chief Human Resources Officer or her authorized delegate via personal delivery or overnight\ndelivery within five calendar days of my receipt of such request.\nb. Competitor. A “Competitor” for purposes of this Agreement shall mean any person, corporation or other entity that\ncompetes with one or more of the business offerings of the Corporation. As of the Effective Date, the Corporation’s business\nofferings include: (i) pharmacy benefits management (“PBM”), including: (a) the administration of pharmacy benefits for\nbusinesses, government agencies and health plans; (b) mail order pharmacy; (c) specialty pharmacy, including but not limited to\ninfusion and related services; (d) Medicare Part D services; (ii) retail, which includes the sale of prescription drugs, over-the-counter\nmedications, beauty products and cosmetics, photo finishing, seasonal merchandise, greeting cards, convenience foods and other\nproduct lines that are sold by the Corporation’s retail division; and (iii) retail health care (“MinuteClinic”). A person or entity shall\nnot be considered a retail Competitor if such entity derives annual gross revenues from its business in an amount that is less than 5%\nof the Corporation’s gross revenues from its retail business during its most recently completed fiscal year. The Parties acknowledge\nthat both the Corporation’s products and services and the entities\nthat compete with the Corporation’s products and services evolve and that an entity will be considered a Competitor if it provides\nproducts or services competitive with the products and services provided by the Corporation within the last two years of your\nemployment.\nGiven my role in the Corporation, I agree to this enterprise-wide definition of non-competition that will prevent me from\nproviding services to the Corporation’s PBM, retail and MinuteClinic Competitors during the relevant time period.\nc. Consulting or Audit Services. “Consulting or Audit Services” shall mean any activity that involves providing audit\nreview or other consulting or advisory services with respect to any relationship or prospective relationship between the Corporation\nand any third party, including but not limited to PBM clients, suppliers or vendors and that is likely to result in the use or disclosure\nof Confidential Information.\nd. Non-Competition Period. The “Non-Competition Period” shall be the period of 18 months following the termination\nof my employment with the Corporation for any reason.\ne. Restricted Area. “Restricted Area” refers to those states within the United States in which the Corporation conducts its\nbusiness, as well as the District of Columbia and Puerto Rico. To the extent I worked on international projects in Brazil and/or\nIreland or other countries where the Corporation may conduct business, the Restricted Area includes those countries and\nprospective countries.\n3.\nNon-Solicitation. During the Non-Solicitation Period, which shall be 18 months following the termination of my\nemployment with the Corporation for any reason, I will not, unless a duly authorized officer of the Corporation gives me written\nauthorization to do so:\na.\ninterfere with the Corporation’s relationship with its Business Partners by soliciting or communicating (regardless\nof who initiates the communication) with a Business Partner to: (i) induce or encourage the Business Partner to stop doing business\nor reduce its business with the Corporation, or (ii) buy a product or service that competes with a product or service offered by the\nCorporation’s business. “Business Partner” means: a customer (person or entity), prospective customer (person or entity), supplier,\nmanufacturer, broker, hospital, hospital system, and/or pharmaceutical company with whom the Corporation has a business\nrelationship and with which I had business-related contact or dealings, or about which I received Confidential Information, in the\ntwo years prior to the termination of my employment with the Corporation. A Business Partner does not include a customer,\nsupplier, manufacturer, broker, hospital, hospital system, pharmaceutical company that has fully and finally ceased doing any\nbusiness with the Corporation independent of any conduct or communications by me or breach of this Agreement. Nothing in this\nParagraph 3(a) shall prevent me from working as a staff pharmacist or in another retail position wherein I would be providing or\nselling prescriptions or other products directly to consumers.\nb.\nwork on a Corporation account on behalf of a Business Partner or serve as the representative of a Business\nPartner for the Corporation.\nc.\ninterfere with the Corporation’s relationship with any employee or contractor of the Corporation by: (i) soliciting\nor communicating with the employee or contractor to induce or encourage him or her to leave the Corporation’s employ or\nengagement (regardless of who first initiates the communication); (ii) helping another person or entity evaluate such employee or\ncontractor as an\n2\nemployment or contractor candidate; or (iii) otherwise helping any person or entity hire an employee or contractor away from the\nCorporation.\n4.\nNon-Disclosure of Confidential Information.\na. Subject to Section 7 below, I will not at any time, whether during or after the termination of my employment, disclose\nto any person or entity any of the Corporation’s Confidential Information, except as may be appropriately required in the ordinary\ncourse of performing my duties as an employee of the Corporation. The Corporation’s Confidential Information includes but is not\nlimited to the following non-public information: trade secrets; computer code generated or developed by the Corporation; software\nor programs and related documentation; strategic compilations and analysis; strategic processes; business or financial methods,\npractices and plans; non-public costs and prices; operating margins; marketing, merchandising and selling techniques and\ninformation; customer lists; details of customer agreements; pricing arrangements with drug manufacturers, including but not\nlimited to any discounts and/or rebates; pharmacy reimbursement rates; expansion strategies; real estate strategies; operating\nstrategies; sources of supply; patient records; and confidential information of third parties which is given to the Corporation\npursuant to an obligation or agreement to keep such information confidential (collectively, “Confidential Information”). I shall not\nuse or attempt to use any Confidential Information on behalf of any person or entity other than the Corporation, or in any manner\nwhich may injure or cause loss or may be calculated to injure or cause loss, whether directly or indirectly, to the Corporation. For\nemployees residing in Connecticut, these restrictions on use or disclosure of Confidential Information will only apply for three (3)\nyears after the end of my employment where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue apply to trade secret information for as long as the information at issue remains qualified as a trade secret.\nb. During my employment, I shall not make, use, or permit to be used, any materials of any nature relating to any matter\nwithin the scope of the business of the Corporation or concerning any of its dealings or affairs other than for the benefit of the\nCorporation. I shall not, after the termination of my employment, use or permit to be used any such materials and shall return same\nin accordance with Section 5 below.\n5.\nOwnership and Return of the Corporation’s Property. On or before my final date of employment with the\nCorporation, I shall return to the Corporation all property of the Corporation in my possession, custody or control, including but not\nlimited to the originals and copies of any information provided to or acquired by me in connection with the performance of my\nduties for the Corporation, such as files, correspondence, communications, memoranda, e-mails, slides, records, and all other\ndocuments, no matter how produced or reproduced, all computer equipment, communication devices (including but not limited to\nany mobile phone, BlackBerry or other portable digital assistant or device), computer programs and/or files, and all office keys and\naccess cards. I agree that all the items described in this Section are the sole property of the Corporation.\n6.\nRights to Inventions, Works.\na. Assignment of Inventions. All inventions, original works of authorship, developments, concepts, improvements,\ndesigns, discoveries, ideas, trademarks or trade secrets, whether patentable or otherwise protectable under similar law, made,\nconceived or developed by me, whether alone or jointly with others, from the date of my initial employment by the Corporation and\ncontinuing until the end of any period during which I am employed by the Corporation, relating or pertaining in any way to my\nemployment with or the business of the Corporation (collectively referred to as “Inventions”) shall be\n3\npromptly disclosed in writing to the Corporation. I hereby assign to the Corporation, or its designee, all of my rights, title and\ninterest to such Inventions. All original works of authorship which are made by me (solely or jointly with others) within the scope\nof and during the period of my employment with the Corporation and which are protectable by copyright are “works made for hire,”\nas that term is defined in the United States Copyright Act and as such are the sole property of the Corporation. The decision whether\nto commercialize or market any Invention developed by me solely or jointly with others is within the Corporation’s sole discretion\nand for the Corporation’s sole benefit and no royalty will be due to me as a result of the Corporation’s efforts to commercialize or\nmarket any such Invention.\nb. Inventions Retained and Licensed. I have attached hereto as Exhibit A, a list describing all inventions, original works\nof authorship, developments, improvements, and trade secrets which were made by me prior to my employment with the\nCorporation (“Prior Inventions”), which belong to me and are not assigned to the Corporation hereunder. If no such list is attached, I\nrepresent that there are no such Prior Inventions. I will not incorporate, or permit to be incorporated, any Prior Invention owned by\nme or in which I have an interest into a Corporation product, process or machine without the Corporation’s prior written consent.\nNotwithstanding the foregoing sentence, if, in the course of my employment with the Corporation, I incorporate into a Corporation\nproduct, process or machine a Prior Invention owned by me or in which I have an interest, the Corporation is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\nc. Patent and Copyright Registrations. I will assist the Corporation, or its designee, at the Corporation’s expense, in\nevery proper way to secure the Corporation’s rights in the Inventions and any copyrights, patents, mask work rights or other\nintellectual property rights relating thereto, including, but not limited to, the disclosure to the Corporation of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other\ninstruments which the Corporation shall deem necessary in order to apply for and obtain such rights and in order to assign and\nconvey to the Corporation, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such\nInventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. My obligation to\nexecute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after my employment\nends for any reason and/or after the termination of this Agreement. If the Corporation is unable because of my mental or physical\nincapacity or for any other reason to secure my signature to apply for or to pursue any application for any United States or foreign\npatents or copyright registrations covering Inventions or original works of authorship assigned to the Corporation as above, then I\nhereby irrevocably designate and appoint the Corporation and its duly authorized officers and agents as my agent and attorney in\nfact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to\nfurther the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if\nexecuted by me.\nd. Exception to Assignments. I understand that if I am an employee in Illinois, Kansas, North Carolina, Utah or\nMinnesota, I should refer to Exhibit B (incorporated herein for all purposes) for important limitations on the scope of the provisions\nof this Agreement concerning assignment of Inventions. I will advise the Corporation promptly in writing of any inventions that I\nbelieve meet the criteria in Exhibit B and that are not otherwise disclosed on Exhibit A.\n4\n7.\nCooperation.\na. In the event that I receive a subpoena, deposition notice, interview request, or other process or order to testify or\nproduce Confidential Information or any other information or property of the Corporation, I shall promptly: (a) notify the\nCorporation of the item, document, or information sought by such subpoena, deposition notice, interview request, or other process\nor order; (b) furnish the Corporation with a copy of said subpoena, deposition notice, interview request, or other process or order;\nand (c) provide reasonable cooperation with respect to any procedure that the Corporation may initiate to protect Confidential\nInformation or other interests. If the Corporation objects to the subpoena, deposition notice, interview request, process, or order, I\nshall cooperate to ensure that there shall be no disclosure until the court or other applicable entity has ruled upon the objection, and\nthen only in accordance with the ruling so made. If no such objection is made despite a reasonable opportunity to do so, I shall be\nentitled to comply with the subpoena, deposition, notice, interview request, or other process or order provided that I have fulfilled\nthe above obligations.\nb. I will cooperate fully with the Corporation, its affiliates, and their legal counsel in connection with any action,\nproceeding, or dispute arising out of matters with which I was directly or indirectly involved while serving as an employee of the\nCorporation, its predecessors, subsidiaries or affiliates. This cooperation shall include, but shall not be limited to, meeting with, and\nproviding information to, the Corporation and its legal counsel, maintaining the confidentiality of any past or future privileged\ncommunications with the Corporation’s legal counsel (outside and in-house), and making myself available to testify truthfully by\naffidavit, in depositions, or in any other forum on behalf of the Corporation. The Corporation agrees to reimburse me for any\nreasonable and necessary out-of-pocket costs associated with my cooperation.\n8.\nLimitation on Restrictions. Nothing in this Agreement is intended to or shall interfere with my right to file charges or\nparticipate in a proceeding with any appropriate federal, state or local government agency, including the Equal Employment\nOpportunity Commission or the National Labor Relations Board, or to prohibit me from communicating or cooperating with any\nsuch agency in its investigation.\n9.\nEligibility for Severance Pay. If my employment with the Corporation terminates under circumstances in which I am\neligible for severance under the Corporation’s Severance Plan for Non-Store Employees (the “Severance Plan”), the Corporation\nwill offer me severance in accordance with the Severance Plan and the length of the Non-Competition Period will match the length\nof the severance period. I acknowledge that the Severance Plan sets forth pre-requisites I must meet in order to receive severance,\nincluding but not limited to execution of the Corporation’s standard separation agreement and release of claims. In the event that the\nCorporation fails to comply with its obligations to offer me severance according to the Severance Plan, then Section 2 of this\nAgreement shall be of no further effect. I agree that if I decline the Corporation’s offer of severance, I shall continue to be subject to\nthe restrictions in Section 2.\n10.\nInjunctive Relief. Any breach of this Agreement by me will cause irreparable damage to the Corporation and, in the\nevent of such breach, the Corporation shall have, in addition to any and all remedies of law, the right to an injunction, specific\nperformance or other equitable relief to prevent the violation of my obligations hereunder, and without providing a bond to the\nextent permitted by the applicable rules of civil procedure.\n11.\nNo Right of Continued Employment. This Agreement does not create an obligation on the Corporation or any other\nperson or entity to continue my employment.\n5\n12.\nNo Conflicting Agreements. I represent that the performance of my job duties with the Corporation and my compliance\nwith all of the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Corporation.\n13.\nEntire Agreement/No Reliance/No Modifications. This Agreement and any compensation, benefit or equity plan or\nagreement referred to herein including the CVS Caremark Corporation Change in Control Agreement (“CIC Agreement”), to the\nextent those other agreements apply to me, set forth the entire agreement between the parties hereto and fully supersede any and all\nprior and/or supplemental understandings, whether written or oral, between the parties concerning the subject matter of this\nAgreement. Notwithstanding the foregoing, if I am a party to the CIC Agreement, then I understand that in the event of a Change in\nControl, as that term is defined in the CIC, Paragraph 2 of this Agreement shall be null and void. I agree and acknowledge that I\nhave not relied on any representations, promises or agreements of any kind in connection with my decision to accept the terms of\nthis Agreement, except for the representations, promises and agreements herein. Any modification to this Agreement must be made\nin writing and signed by me and the Corporation’s Chief Human Resources Officer or her authorized representative.\n14.\nNo Waiver. Any waiver by the Corporation of a breach of any provision of this Agreement, or of any other similar\nagreement with any other current or former employee of the Corporation, shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n15.\nSeverability. The parties hereby agree that each provision herein shall be treated as a separate and independent clause,\nand the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if\none or more of the provisions of this Agreement are for any reason held to be excessively broad as to scope, activity, duration,\nsubject or otherwise so as to be unenforceable at law, the parties consent to such provision or provisions being modified or limited\nby the appropriate judicial body (where allowed by applicable law), so as to be enforceable to the maximum extent compatible with\nthe applicable law.\n16.\nSurvival of Employee’s Obligations. My obligations under this Agreement shall survive the termination of my\nemployment regardless of the manner of such termination and shall be binding upon my heirs, personal representatives, executors,\nadministrators and legal representatives.\n17.\nCorporation’s Right to Assign Agreement. The Corporation has the right to assign this Agreement to its successors\nand assigns without the need for further agreement or consent by me, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n18.\nNon-Assignment. I shall not assign my rights and obligations under this Agreement, in whole or in part, whether by\noperation of law or otherwise, without the prior written consent of the Corporation, and any such assignment contrary to the terms\nhereof shall be null and void and of no force or effect.\n19.\nGoverning Law; Headings. This Agreement shall be governed by and construed in accordance with the laws of the\nstate of Rhode Island. The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to\ncontrol or affect the meaning or construction of any provision of this Agreement.\n6\n20.\nTolling. In the event I violate one of the time-limited restrictions in this Agreement, I agree that the time period for such\nviolated restriction shall be extended by one day for each day I have violated the restriction, up to a maximum extension equal to\nthe length of the original period of the restricted covenant.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed instrument as of the date set forth below.\n__________________________\n/s/ Lisa Bisaccia\nLisa Bisaccia\nChief Human Resources Officer\n__________________________\nCVS Pharmacy, Inc.\nEmployee ID\nDate: _____________________\n7\nEXHIBIT A\nList of Prior Inventions – See Section 6\n8\nEXHIBIT B\nNotice Regarding Invention Assignment\n1. For an employee residing in Illinois, Kansas, or North Carolina, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no\nequipment, supplies, facility, or trade secret information of the Corporation was used and which was developed entirely on\nyour own time, unless (a) the invention relates (i) to the business of the Corporation or (ii) to the Corporation’s actual or\ndemonstrably anticipated research or development, or (b) the invention results from any work performed by you for the\nCorporation. Illinois 765ILCS1060/1-3, “Employees Patent Act”; Kansas Statutes Section 44-130; North Carolina General\nStatutes Article 10A, Chapter 66, Commerce and Business, Section 66-57 .1.\n2. For an employee residing in Utah, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention which was created\nentirely on your own time, and which is not (a) conceived, developed, reduced to practice, or created by you (i) within the\nscope of your employment with the Corporation, (ii) on the Corporation’s time, or (iii) with the aid, assistance, or use of any\nof the Corporation’s property, equipment, facilities, supplies, resources, or patents, trade secrets, know-how, technology,\nconfidential information, ideas, copy rights, trademarks and service marks and any and all rights, applications and\nregistrations relating to them, (b) the results of any work, services, or duties performed by you for the Corporation, (c) related\nto the industry or trade of the Corporation, or (d) related to the current or demonstrably anticipated business, research, or\ndevelopment of the Corporation. Utah Code Sections 34-39 -1 through 34-39 -3, “Employee Inventions Act.”\n3. For an employee residing in Minnesota, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no equipment,\nsupplies, facility, or trade secret information of the Corporation was used, and which was developed entirely on your own\ntime, and (a) which does not relate (i) directly to the business of the Corporation, or (ii) to the Corporation’s actual or\ndemonstrably anticipated research or development, or (b) which does not result from any work performed by you for the\nCorporation. Minnesota Statutes 13A Section 181.78 .\n9	EX-10.27 7 ex1027formofenterprisenon-.htm EXHIBIT 10.27\nCVS Pharmacy, Inc.\nRestrictive Covenant Agreement\nL , enter into this Restrictive Covenant Agreement (“Agreement”) with CVS\nPharmacy, Inc. (“CVS”), which is effective as of the date I sign the Agreement (the “Effective Date™). In consideration of the\nmutual promises in this Agreement, the parties agree as follows:\n \n1. Consideration for Agreement. In connection with my duties and responsibilities at CVS Caremark Corporation or one\nof its subsidiaries or affiliates (collectively, the “Corporation”), the Corporation will provide me with Confidential Information\nand/or access to the Corporation’s customers and clients and the opportunity to develop and maintain relationships and goodwill\nwith them. In addition, the Corporation has awarded me restricted stock units contingent on the execution of this Agreement and\ncompliance with its terms.\n2. Non-Competition. During my employment by the Corporation and during the Non-Competition Period following the\ntermination of my employment for any reason, I will not, directly or indirectly, engage in Competition or provide Consulting or\nAudit Services within the Restricted Area.\na. Competition. Engaging in “Competition” means providing services to a Competitor of the Corporation (whether as an\nemployee, independent contractor, consultant, principal, agent, partner, officer, director, investor, or shareholder, except as a\nshareholder of less than one percent of a publicly traded company) that: (i) are the same or similar in function or purpose to the\nservices I provided to the Corporation during the last two years of my employment by the Corporation, or (ii) will likely result in\nthe disclosure of Confidential Information to a Competitor or the use of Confidential Information on behalf of a Competitor. If a\nrepresentative of the Corporation, during my employment or the Non-Competition Period, requests that I identify the company or\nbusiness to which I will be or am providing services, or with which I will be or am employed, and requests that I provide\ninformation about the services that I am or will be providing to such entity, I shall provide the Corporation with a written statement\ndetailing the identity of the entity and the nature of the services that I am or will be providing to such entity with sufficient detail to\nallow the Corporation to independently assess whether I am or will be in violation of this Agreement. Such statement shall be\ndelivered to the Corporation’s Chief Human Resources Officer or her authorized delegate via personal delivery or overnight\ndelivery within five calendar days of my receipt of such request.\nb. Competitor. A “Competitor” for purposes of this Agreement shall mean any person, corporation or other entity that\ncompetes with one or more of the business offerings of the Corporation. As of the Effective Date, the Corporation’s business\nofferings include: (i) pharmacy benefits management (“PBM™), including: (a) the administration of pharmacy benefits for\nbusinesses, government agencies and health plans; (b) mail order pharmacy; (c) specialty pharmacy, including but not limited to\ninfusion and related services; (d) Medicare Part D services; (ii) retail, which includes the sale of prescription drugs, over-the-counter\nmedications, beauty products and cosmetics, photo finishing, seasonal merchandise, greeting cards, convenience foods and other\nproduct lines that are sold by the Corporation’s retail division; and (iii) retail health care (“MinuteClinic”). A person or entity shall\nnot be considered a retail Competitor if such entity derives annual gross revenues from its business in an amount that is less than 5%\nof the Corporation’s gross revenues from its retail business during its most recently completed fiscal year. The Parties acknowledge\nthat both the Corporation’s products and services and the entities\nthat compete with the Corporation’s products and services evolve and that an entity will be considered a Competitor if it provides\nproducts or services competitive with the products and services provided by the Corporation within the last two years of your\nemployment.\nGiven my role in the Corporation, I agree to this enterprise-wide definition of non-competition that will prevent me from\nproviding services to the Corporation’s PBM, retail and MinuteClinic Competitors during the relevant time period.\nc. Consulting or Audit Services. “Consulting or Audit Services” shall mean any activity that involves providing audit\nreview or other consulting or advisory services with respect to any relationship or prospective relationship between the Corporation\nand any third party, including but not limited to PBM clients, suppliers or vendors and that is likely to result in the use or disclosure\nof Confidential Information.\nd. Non-Competition Period. The “Non-Competition Period” shall be the period of 18 months following the termination\nof my employment with the Corporation for any reason.\ne. Restricted Area. “Restricted Area” refers to those states within the United States in which the Corporation conducts its\nbusiness, as well as the District of Columbia and Puerto Rico. To the extent I worked on international projects in Brazil and/or\nIreland or other countries where the Corporation may conduct business, the Restricted Area includes those countries and\nprospective countries.\n3. Non-Solicitation. During the Non-Solicitation Period, which shall be 18 months following the termination of my\nemployment with the Corporation for any reason, I will not, unless a duly authorized officer of the Corporation gives me written\nauthorization to do so:\na. interfere with the Corporation’s relationship with its Business Partners by soliciting or communicating (regardless\nof who initiates the communication) with a Business Partner to: (i) induce or encourage the Business Partner to stop doing business\nor reduce its business with the Corporation, or (ii) buy a product or service that competes with a product or service offered by the\nCorporation’s business. “Business Partner” means: a customer (person or entity), prospective customer (person or entity), supplier,\nmanufacturer, broker, hospital, hospital system, and/or pharmaceutical company with whom the Corporation has a business\nrelationship and with which I had business-related contact or dealings, or about which I received Confidential Information, in the\ntwo years prior to the termination of my employment with the Corporation. A Business Partner does not include a customer,\nsupplier, manufacturer, broker, hospital, hospital system, pharmaceutical company that has fully and finally ceased doing any\nbusiness with the Corporation independent of any conduct or communications by me or breach of this Agreement. Nothing in this\nParagraph 3(a) shall prevent me from working as a staff pharmacist or in another retail position wherein I would be providing or\nselling prescriptions or other products directly to consumers.\nb. work on a Corporation account on behalf of a Business Partner or serve as the representative of a Business\nPartner for the Corporation.\nC. interfere with the Corporation’s relationship with any employee or contractor of the Corporation by: (i) soliciting\nor communicating with the employee or contractor to induce or encourage him or her to leave the Corporation’s employ or\nengagement (regardless of who first initiates the communication); (ii) helping another person or entity evaluate such employee or\ncontractor as an\nemployment or contractor candidate; or (iii) otherwise helping any person or entity hire an employee or contractor away from the\nCorporation.\n4, Non-Disclosure of Confidential Information.\na. Subject to Section 7 below, I will not at any time, whether during or after the termination of my employment, disclose\nto any person or entity any of the Corporation’s Confidential Information, except as may be appropriately required in the ordinary\ncourse of performing my duties as an employee of the Corporation. The Corporation’s Confidential Information includes but is not\nlimited to the following non-public information: trade secrets; computer code generated or developed by the Corporation; software\nor programs and related documentation; strategic compilations and analysis; strategic processes; business or financial methods,\npractices and plans; non-public costs and prices; operating margins; marketing, merchandising and selling techniques and\ninformation; customer lists; details of customer agreements; pricing arrangements with drug manufacturers, including but not\nlimited to any discounts and/or rebates; pharmacy reimbursement rates; expansion strategies; real estate strategies; operating\nstrategies; sources of supply; patient records; and confidential information of third parties which is given to the Corporation\npursuant to an obligation or agreement to keep such information confidential (collectively, “Confidential Information™). I shall not\nuse or attempt to use any Confidential Information on behalf of any person or entity other than the Corporation, or in any manner\nwhich may injure or cause loss or may be calculated to injure or cause loss, whether directly or indirectly, to the Corporation. For\nemployees residing in Connecticut, these restrictions on use or disclosure of Confidential Information will only apply for three (3)\nyears after the end of my employment where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue apply to trade secret information for as long as the information at issue remains qualified as a trade secret.\nb. During my employment, I shall not make, use, or permit to be used, any materials of any nature relating to any matter\nwithin the scope of the business of the Corporation or concerning any of its dealings or affairs other than for the benefit of the\nCorporation. I shall not, after the termination of my employment, use or permit to be used any such materials and shall return same\nin accordance with Section 5 below.\n5. Ownership and Return of the Corporation’s Property. On or before my final date of employment with the\nCorporation, I shall return to the Corporation all property of the Corporation in my possession, custody or control, including but not\nlimited to the originals and copies of any information provided to or acquired by me in connection with the performance of my\nduties for the Corporation, such as files, correspondence, communications, memoranda, e-mails, slides, records, and all other\ndocuments, no matter how produced or reproduced, all computer equipment, communication devices (including but not limited to\nany mobile phone, BlackBerry or other portable digital assistant or device), computer programs and/or files, and all office keys and\naccess cards. I agree that all the items described in this Section are the sole property of the Corporation.\n6. Rights to Inventions, Works.\na. Assignment of Inventions. All inventions, original works of authorship, developments, concepts, improvements,\ndesigns, discoveries, ideas, trademarks or trade secrets, whether patentable or otherwise protectable under similar law, made,\nconceived or developed by me, whether alone or jointly with others, from the date of my initial employment by the Corporation and\ncontinuing until the end of any period during which I am employed by the Corporation, relating or pertaining in any way to my\nemployment with or the business of the Corporation (collectively referred to as “Inventions™) shall be\npromptly disclosed in writing to the Corporation. I hereby assign to the Corporation, or its designee, all of my rights, title and\ninterest to such Inventions. All original works of authorship which are made by me (solely or jointly with others) within the scope\nof and during the period of my employment with the Corporation and which are protectable by copyright are “works made for hire,”\nas that term is defined in the United States Copyright Act and as such are the sole property of the Corporation. The decision whether\nto commercialize or market any Invention developed by me solely or jointly with others is within the Corporation’s sole discretion\nand for the Corporation’s sole benefit and no royalty will be due to me as a result of the Corporation’s efforts to commercialize or\nmarket any such Invention.\nb. Inventions Retained and Licensed. I have attached hereto as Exhibit A, a list describing all inventions, original works\nof authorship, developments, improvements, and trade secrets which were made by me prior to my employment with the\nCorporation (“Prior Inventions”), which belong to me and are not assigned to the Corporation hereunder. If no such list is attached, I\nrepresent that there are no such Prior Inventions. I will not incorporate, or permit to be incorporated, any Prior Invention owned by\nme or in which I have an interest into a Corporation product, process or machine without the Corporation’s prior written consent.\nNotwithstanding the foregoing sentence, if, in the course of my employment with the Corporation, I incorporate into a Corporation\nproduct, process or machine a Prior Invention owned by me or in which I have an interest, the Corporation is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\nc. Patent and Copyright Registrations. I will assist the Corporation, or its designee, at the Corporation’s expense, in\nevery proper way to secure the Corporation’s rights in the Inventions and any copyrights, patents, mask work rights or other\nintellectual property rights relating thereto, including, but not limited to, the disclosure to the Corporation of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other\ninstruments which the Corporation shall deem necessary in order to apply for and obtain such rights and in order to assign and\nconvey to the Corporation, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such\nInventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. My obligation to\nexecute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after my employment\nends for any reason and/or after the termination of this Agreement. If the Corporation is unable because of my mental or physical\nincapacity or for any other reason to secure my signature to apply for or to pursue any application for any United States or foreign\npatents or copyright registrations covering Inventions or original works of authorship assigned to the Corporation as above, then I\nhereby irrevocably designate and appoint the Corporation and its duly authorized officers and agents as my agent and attorney in\nfact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to\nfurther the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if\nexecuted by me.\nd. Exception to Assignments. I understand that if I am an employee in Illinois, Kansas, North Carolina, Utah or\nMinnesota, I should refer to Exhibit B (incorporated herein for all purposes) for important limitations on the scope of the provisions\nof this Agreement concerning assignment of Inventions. I will advise the Corporation promptly in writing of any inventions that I\nbelieve meet the criteria in Exhibit B and that are not otherwise disclosed on Exhibit A.\n7. Cooperation.\na. Inthe event that I receive a subpoena, deposition notice, interview request, or other process or order to testify or\nproduce Confidential Information or any other information or property of the Corporation, I shall promptly: (a) notify the\nCorporation of the item, document, or information sought by such subpoena, deposition notice, interview request, or other process\nor order; (b) furnish the Corporation with a copy of said subpoena, deposition notice, interview request, or other process or order;\nand (c) provide reasonable cooperation with respect to any procedure that the Corporation may initiate to protect Confidential\nInformation or other interests. If the Corporation objects to the subpoena, deposition notice, interview request, process, or order, I\nshall cooperate to ensure that there shall be no disclosure until the court or other applicable entity has ruled upon the objection, and\nthen only in accordance with the ruling so made. If no such objection is made despite a reasonable opportunity to do so, I shall be\nentitled to comply with the subpoena, deposition, notice, interview request, or other process or order provided that I have fulfilled\nthe above obligations.\nb. Iwill cooperate fully with the Corporation, its affiliates, and their legal counsel in connection with any action,\nproceeding, or dispute arising out of matters with which I was directly or indirectly involved while serving as an employee of the\nCorporation, its predecessors, subsidiaries or affiliates. This cooperation shall include, but shall not be limited to, meeting with, and\nproviding information to, the Corporation and its legal counsel, maintaining the confidentiality of any past or future privileged\ncommunications with the Corporation’s legal counsel (outside and in-house), and making myself available to testify truthfully by\naffidavit, in depositions, or in any other forum on behalf of the Corporation. The Corporation agrees to reimburse me for any\nreasonable and necessary out-of-pocket costs associated with my cooperation.\n8. Limitation on Restrictions. Nothing in this Agreement is intended to or shall interfere with my right to file charges or\nparticipate in a proceeding with any appropriate federal, state or local government agency, including the Equal Employment\nOpportunity Commission or the National Labor Relations Board, or to prohibit me from communicating or cooperating with any\nsuch agency in its investigation.\n9. Eligibility for Severance Pay. If my employment with the Corporation terminates under circumstances in which I am\neligible for severance under the Corporation’s Severance Plan for Non-Store Employees (the “Severance Plan”), the Corporation\nwill offer me severance in accordance with the Severance Plan and the length of the Non-Competition Period will match the length\nof the severance period. I acknowledge that the Severance Plan sets forth pre-requisites I must meet in order to receive severance,\nincluding but not limited to execution of the Corporation’s standard separation agreement and release of claims. In the event that the\nCorporation fails to comply with its obligations to offer me severance according to the Severance Plan, then Section 2 of this\nAgreement shall be of no further effect. I agree that if I decline the Corporation’s offer of severance, I shall continue to be subject to\nthe restrictions in Section 2.\n10. Injunctive Relief. Any breach of this Agreement by me will cause irreparable damage to the Corporation and, in the\nevent of such breach, the Corporation shall have, in addition to any and all remedies of law, the right to an injunction, specific\nperformance or other equitable relief to prevent the violation of my obligations hereunder, and without providing a bond to the\nextent permitted by the applicable rules of civil procedure.\n11. No Right of Continued Employment. This Agreement does not create an obligation on the Corporation or any other\nperson or entity to continue my employment.\n12. No Conflicting Agreements. I represent that the performance of my job duties with the Corporation and my compliance\nwith all of the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Corporation.\n13. Entire Agreement/No Reliance/No Modifications. This Agreement and any compensation, benefit or equity plan or\nagreement referred to herein including the CVS Caremark Corporation Change in Control Agreement (“CIC Agreement”), to the\nextent those other agreements apply to me, set forth the entire agreement between the parties hereto and fully supersede any and all\nprior and/or supplemental understandings, whether written or oral, between the parties concerning the subject matter of this\nAgreement. Notwithstanding the foregoing, if I am a party to the CIC Agreement, then I understand that in the event of a Change in\nControl, as that term is defined in the CIC, Paragraph 2 of this Agreement shall be null and void. I agree and acknowledge that I\nhave not relied on any representations, promises or agreements of any kind in connection with my decision to accept the terms of\nthis Agreement, except for the representations, promises and agreements herein. Any modification to this Agreement must be made\nin writing and signed by me and the Corporation’s Chief Human Resources Officer or her authorized representative.\n14. No Waiver. Any waiver by the Corporation of a breach of any provision of this Agreement, or of any other similar\nagreement with any other current or former employee of the Corporation, shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n15. Severability. The parties hereby agree that each provision herein shall be treated as a separate and independent clause,\nand the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if\none or more of the provisions of this Agreement are for any reason held to be excessively broad as to scope, activity, duration,\nsubject or otherwise so as to be unenforceable at law, the parties consent to such provision or provisions being modified or limited\nby the appropriate judicial body (where allowed by applicable law), so as to be enforceable to the maximum extent compatible with\nthe applicable law.\n16. Survival of Employee’s Obligations. My obligations under this Agreement shall survive the termination of my\nemployment regardless of the manner of such termination and shall be binding upon my heirs, personal representatives, executors,\nadministrators and legal representatives.\n17. Corporation’s Right to Assign Agreement. The Corporation has the right to assign this Agreement to its successors\nand assigns without the need for further agreement or consent by me, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n18. Non-Assignment. I shall not assign my rights and obligations under this Agreement, in whole or in part, whether by\noperation of law or otherwise, without the prior written consent of the Corporation, and any such assignment contrary to the terms\nhereof shall be null and void and of no force or effect.\n19. Governing Law; Headings. This Agreement shall be governed by and construed in accordance with the laws of the\nstate of Rhode Island. The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to\ncontrol or affect the meaning or construction of any provision of this Agreement.\n20. Tolling. In the event I violate one of the time-limited restrictions in this Agreement, I agree that the time period for such\nviolated restriction shall be extended by one day for each day I have violated the restriction, up to a maximum extension equal to\nthe length of the original period of the restricted covenant.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed instrument as of the date set forth below.\n/s/ Lisa Bisaccia\n \nLisa Bisaccia\nChief Human Resources Officer\nCVS Pharmacy, Inc.\n \nEmployee ID\nDate:\nEXHIBIT A\nList of Prior Inventions — See Section 6\nEXHIBIT B\nNotice Regarding Invention Assignment\nFor an employee residing in Illinois, Kansas, or North Carolina, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no\nequipment, supplies, facility, or trade secret information of the Corporation was used and which was developed entirely on\nyour own time, unless (a) the invention relates (i) to the business of the Corporation or (ii) to the Corporation’s actual or\ndemonstrably anticipated research or development, or (b) the invention results from any work performed by you for the\nCorporation. Illinois 765ILCS1060/1-3, “Employees Patent Act”; Kansas Statutes Section 44-130; North Carolina General\nStatutes Article 10A, Chapter 66, Commerce and Business, Section 66-57.1.\nFor an employee residing in Utah, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention which was created\nentirely on your own time, and which is not (a) conceived, developed, reduced to practice, or created by you (i) within the\nscope of your employment with the Corporation, (ii) on the Corporation’s time, or (iii) with the aid, assistance, or use of any\nof the Corporation’s property, equipment, facilities, supplies, resources, or patents, trade secrets, know-how, technology,\nconfidential information, ideas, copy rights, trademarks and service marks and any and all rights, applications and\nregistrations relating to them, (b) the results of any work, services, or duties performed by you for the Corporation, (c) related\nto the industry or trade of the Corporation, or (d) related to the current or demonstrably anticipated business, research, or\ndevelopment of the Corporation. Utah Code Sections 34-39-1 through 34-39-3, “Employee Inventions Act.”\nFor an employee residing in Minnesota, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no equipment,\nsupplies, facility, or trade secret information of the Corporation was used, and which was developed entirely on your own\ntime, and (a) which does not relate (i) directly to the business of the Corporation, or (ii) to the Corporation’s actual or\ndemonstrably anticipated research or development, or (b) which does not result from any work performed by you for the\nCorporation. Minnesota Statutes 13A Section 181.78.	EX-10.27 x1027formofenterprisenon-.htn EXHIBIT 10.27\nCVS Pharmacy, Inc.\nRestrictive Covenant Agreement\nI,\nenter into this Restrictive Covenant Agreement ("Agreement") with CVS\nPharmacy, Inc. ("CVS"), which is effective as of the date I sign the Agreement (the "Effective Date"). In consideration of the\nmutual promises in this Agreement, the parties agree as follows:\n1.\nConsideration for Agreement. In connection with my duties and responsibilities at CVS Caremark Corporation or one\nof its subsidiaries or affiliates (collectively, the "Corporation"), the Corporation will provide me with Confidential Information\nand/or access to the Corporation's customers and clients and the opportunity to develop and maintain relationships\nand\ngoodwill\nwith them. In addition, the Corporation has awarded me restricted stock units contingent on the execution of this Agreement and\ncompliance with its terms.\n2.\nNon-Competition. During my employment by the Corporation and during the Non-Competition Period following the\ntermination of my employment for any reason, I will not, directly or indirectly, engage in Competition or provide Consulting or\nAudit Services within the Restricted Area.\na. Competition. Engaging in "Competition" means providing services to a Competitor of the Corporation (whether as an\nemployee, independent contractor, consultant, principal, agent, partner, officer, director, investor, or shareholder, except as a\nshareholder of less than one percent of a publicly traded company) that: (i) are the same or similar in function or purpose to the\nservices I provided to the Corporation during the last two years of my employment by the Corporation, or (ii) will likely result\nin\nthe disclosure of Confidential Information to a Competitor or the use of Confidential Information on behalf of a Competitor. If a\nrepresentative of the Corporation, during my employment or the Non-Competition Period, requests that I identify the company or\nbusiness to which I will be or am providing services, or with which I will be or am employed, and requests that I provide\ninformation about the services that I am or will be providing to such entity, I shall provide the Corporation with a written statement\ndetailing the identity of the entity and the nature of the services that I am or will be providing to such entity with sufficient detail to\nallow the Corporation to independently assess whether I am or will be in violation of this Agreement. Such statement shall be\ndelivered to the Corporation's Chief Human Resources Officer or her authorized delegate via personal delivery or overnight\ndelivery within five calendar days of my receipt of such request.\nb. Competitor. A "Competitor" for purposes of this Agreement shall mean any person, corporation or other entity that\ncompetes with one or more of the business offerings of the Corporation. As of the Effective Date, the Corporation's business\nofferings include: (i) pharmacy benefits management ("PBM"), including: (a) the administration of pharmacy benefits for\nbusinesses, government agencies and health plans; (b) mail order pharmacy; (c) specialty pharmacy, including but not limited to\ninfusion and related services; (d) Medicare Part D services; (ii) retail, which includes the sale of prescription drugs, over-the-counter\nmedications, beauty products and cosmetics, photo finishing, seasonal merchandise, greeting cards, convenience foods and other\nproduct lines that are sold by the Corporation's retail division; and (iii) retail health care ("MinuteClinic"). A person or entity shall\nnot be considered a retail Competitor if such entity derives annual gross revenues from its business in an amount that is less than 5%\nof the Corporation's gross revenues from its retail business during its most recently completed fiscal year. The Parties acknowledge\nthat both the Corporation's products and services and the entities\nthat compete with the Corporation's products and services evolve and that an entity will be considered a Competitor if it provides\nproducts or services competitive with the products and services provided by the Corporation within the last two years of your\nemployment.\nGiven my role in the Corporation, I agree to this enterprise-wide definition of non-competition that will prevent me from\nproviding services to the Corporation's PBM, retail and MinuteClinic Competitors during the relevant time period.\nC. Consulting or Audit Services. "Consulting or Audit Services" shall mean any activity that involves providing audit\nreview or other consulting or advisory services with respect to any relationship or prospective relationship between the Corporation\nand any third party, including but not limited to PBM clients, suppliers or vendors and that is likely to result in the use or disclosure\nof Confidential Information.\nd. Non-Competition Period. The "Non-Competition Period" shall be the period of 18 months following the termination\nof my employment with the Corporation for any reason.\ne. Restricted Area. "Restricted Area" refers to those states within the United States in which the Corporation conducts its\nbusiness, as well as the District of Columbia and Puerto Rico. To the extent I worked on international projects in Brazil and/or\nIreland or other countries where the Corporation may conduct business, the Restricted Area includes those countries and\nprospective countries.\n3.\nNon-Solicitation. During the Non-Solicitation Period, which shall be 18 months following the termination of my\nemployment with the Corporation for any reason, I will not, unless a duly authorized officer of the Corporation gives me written\nauthorization to do so:\na.\ninterfere with the Corporation's relationship with its Business Partners by soliciting or communicating (regardless\nof who initiates the communication) with a Business Partner to: (i) induce or encourage the Business Partner to stop doing business\nor reduce its business with the Corporation, or (ii) buy a product or service that competes with a product or service offered by the\nCorporation's business. "Business Partner" means: a customer (person or entity), prospective customer (person or entity), supplier,\nmanufacturer, broker, hospital, hospital system, and/or pharmaceutical company with whom the Corporation has a business\nrelationship and with which I had business-related contact or dealings, or about which I received Confidential Information, in the\ntwo years prior to the termination of my employment with the Corporation. A Business Partner does not include a customer,\nsupplier, manufacturer, broker, hospital, hospital system, pharmaceutical company that has fully and finally ceased doing any\nbusiness\nwith the Corporation independent of any conduct or communications by me or breach of this Agreement. Nothing in this\nParagraph 3(a) shall prevent me from working as a staff pharmacist or in another retail position wherein I would be providing or\nselling prescriptions or other products directly to consumers.\nb.\nwork on a Corporation account on behalf of a Business Partner or serve as the representative of a Business\nPartner for the Corporation.\nC.\ninterfere with the Corporation's relationship with any employee or contractor of the Corporation by: (i) soliciting\nor communicating with the employee or contractor to induce or encourage him or her to leave the Corporation's employ or\nengagement (regardless of who first initiates the communication); (ii) helping another person or entity evaluate such employee\nor\ncontractor as an\n2\nemployment or contractor candidate; or (iii) otherwise helping any person or entity hire an employee or contractor away from the\nCorporation.\n4.\nNon-Disclosure of Confidential Information.\na. Subject to Section 7 below, I will not at any time, whether during or after the termination of my employment, disclose\nto any person or entity any of the Corporation's Confidential Information, except as may be appropriately required in the ordinary\ncourse\nof\nperforming\nmy\nduties\nas\nan\nemployee\nof\nthe\nCorporation.\nThe\nCorporation's\nConfidential\nInformation\nincludes\nbut\nis\nnot\nlimited to the following non-public information: trade secrets; computer code generated or developed by the Corporation; software\nor programs and related documentation; strategic compilations and analysis; strategic processes; business or financial methods,\npractices and plans; non-public costs and prices; operating margins; marketing, merchandising and selling techniques and\ninformation; customer lists; details of customer agreements; pricing arrangements with drug manufacturers, including but not\nlimited to any discounts and/or rebates; pharmacy reimbursement rates; expansion strategies; real estate strategies; operating\nstrategies; sources of supply; patient records; and confidential information of third parties which is given to the Corporation\npursuant to an obligation or agreement to keep such information confidential (collectively, "Confidential Information"). I shall not\nuse\nor\nattempt\nto\nuse\nany\nConfidential\nInformation\non\nbehalf\nof\nany\nperson\nor\nentity\nother\nthan\nthe\nCorporation,\nor\nin\nany\nmanner\nwhich may injure or cause loss or may be calculated to injure or cause loss, whether directly or indirectly, to the Corporation. For\nemployees residing in Connecticut, these restrictions on use or disclosure of Confidential Information will only apply for three\n(3)\nyears after the end of my employment where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue apply to trade secret information for as long as the information at issue remains qualified as a trade secret.\nb. During my employment, I shall not make, use, or permit to be used, any materials of any nature relating to any matter\nwithin the scope of the business of the Corporation or concerning any of its dealings or affairs other than for the benefit of the\nCorporation. I shall not, after the termination of my employment, use or permit to be used any such materials and shall return same\nin accordance with Section 5 below.\n5.\nOwnership and Return of the Corporation's Property. On or before my final date of employment with the\nCorporation, I shall return to the Corporation all property of the Corporation in my possession, custody or control, including but not\nlimited to the originals and copies of any information provided to or acquired by me in connection with the performance of my\nduties for the Corporation, such as files, correspondence, communications, memoranda, e-mails, slides, records, and all other\ndocuments, no matter how produced or reproduced, all computer equipment, communication devices (including but not limited\nto\nany mobile phone, BlackBerry or other portable digital assistant or device), computer programs and/or files, and all office keys and\naccess cards. I agree that all the items described in this Section are the sole property of the Corporation.\n6.\nRights to Inventions, Works.\na. Assignment of Inventions. All inventions, original works of authorship, developments, concepts, improvements,\ndesigns, discoveries, ideas, trademarks or trade secrets, whether patentable or otherwise protectable under similar law, made,\nconceived or developed by me, whether alone or jointly with others, from the date of my initial employment by the Corporation and\ncontinuing until the end of any period during which I am employed by the Corporation, relating or pertaining in any way to my\nemployment with or the business of the Corporation (collectively referred to as "Inventions") shall be\n3\npromptly disclosed in writing to the Corporation. I hereby assign to the Corporation, or its designee, all of my rights, title and\ninterest to such Inventions. All original works of authorship which are made by me (solely or jointly with others) within the scope\nof and during the period of my employment with the Corporation and which are protectable by copyright are "works made for hire,"\nas that term is defined in the United States Copyright Act and as such are the sole property of the Corporation. The decision whether\nto commercialize or market any Invention developed by me solely or jointly with others is within the Corporation's sole discretion\nand for the Corporation's sole benefit and no royalty will be due to me as a result of the Corporation's efforts to commercialize or\nmarket any such Invention.\nb. Inventions Retained and Licensed. I have attached hereto as Exhibit A, a list describing all inventions, original works\nof authorship, developments, improvements, and trade secrets which were made by me prior to my employment with the\nCorporation ("Prior Inventions"), which belong to me and are not assigned to the Corporation hereunder If no such list is attached,\nI\nrepresent that there are no such Prior Inventions. I will not incorporate, or permit to be incorporated, any Prior Invention owned by\nme or in which I have an interest into a Corporation product, process or machine without the Corporation's prior written consent.\nNotwithstanding the foregoing sentence, if, in the course of my employment with the Corporation, I incorporate into a Corporation\nproduct, process or machine a Prior Invention owned by me or in which I have an interest, the Corporation is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\nc. Patent and Copyright Registrations. I will assist the Corporation, or its designee, at the Corporation's expense, in\nevery proper way to secure the Corporation's rights in the Inventions and any copyrights, patents, mask work rights or other\nintellectual property rights relating thereto, including, but not limited to, the disclosure to the Corporation of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other\ninstruments which the Corporation shall deem necessary in order to apply for and obtain such rights and in order to assign and\nconvey to the Corporation, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such\nInventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. My obligation to\nexecute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after my employment\nends\nfor\nany\nreason\nand/or\nafter\nthe\ntermination\nof\nthis\nAgreement.\nIf\nthe\nCorporation\nis\nunable\nbecause\nof\nmy\nmental\nor\nphysical\nincapacity or for any other reason to secure my signature to apply for or to pursue any application for any United States or foreign\npatents or copyright registrations covering Inventions or original works of authorship assigned to the Corporation as above, then\nI\nhereby irrevocably designate and appoint the Corporation and its duly authorized officers and agents as my agent and attorney in\nfact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to\nfurther the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as\nif\nexecuted by me.\nd. Exception to Assignments. I understand that if I am an employee in Illinois, Kansas, North Carolina, Utah or\nMinnesota, I should refer to Exhibit B (incorporated herein for all purposes) for important limitations on the scope of the provisions\nof this Agreement concerning assignment of Inventions. I will advise the Corporation promptly in writing of any inventions that I\nbelieve meet the criteria in Exhibit B and that are not otherwise disclosed on Exhibit A.\n4\n7.\nCooperation.\na.\nIn the event that I receive a subpoena, deposition notice, interview request, or other process or order to testify\nor\nproduce Confidentia Information or any other information or property of the Corporation, I shall promptly: (a) notify the\nCorporation of the item, document, or information sought by such subpoena, deposition notice, interview request, or other process\nor order; (b) furnish the Corporation with a copy of said subpoena, deposition notice, interview request, or other process or order;\nand (c) provide reasonable cooperation with respect to any procedure that the Corporation may initiate to protect Confidential\nInformation or other interests. If the Corporation objects to the subpoena, deposition notice, interview request, process, or order,\nI\nshall cooperate to ensure that there shall be no disclosure until the court or other applicable entity has ruled upon the objection, and\nthen only in accordance with the ruling so made. If no such objection is made despite a reasonable opportunity to do so, I shall be\nentitled to comply with the subpoena, deposition, notice, interview request, or other process or order provided that I have fulfilled\nthe above obligations.\nb. I will cooperate fully with the Corporation, its affiliates, and their legal counsel in connection with any action,\nproceeding, or dispute arising out of matters with which I was directly or indirectly involved while serving as an employee of the\nCorporation, its predecessors, subsidiaries or affiliates. This cooperation shall include, but shall not be limited to, meeting with, and\nproviding information to, the Corporation and its legal counsel, maintaining the confidentiality of any past or future privileged\ncommunications with the Corporation's legal counsel (outside and in-house), and making myself available to testify truthfully by\naffidavit, in depositions, or in any other forum on behalf of the Corporation. The Corporation agrees to reimburse me for any\nreasonable and necessary out-of-pocket costs associated with my cooperation.\n8.\nLimitation on Restrictions. Nothing in this Agreement is intended to or shall interfere with my right to file charges or\nparticipate in a proceeding with any appropriate federal, state or local government agency, including the Equal Employment\nOpportunity Commission or the National Labor Relations Board, or to prohibit me from communicating or cooperating with any\nsuch agency in its investigation.\n9.\nEligibility for Severance Pay. If my employment with the Corporation terminates under circumstances in which I am\neligible for severance under the Corporation's Severance Plan for Non-Store Employees (the "Severance Plan"), the Corporation\nwill offer me severance in accordance with the Severance Plan and the length of the Non-Competition Period will match the length\nof the severance period. I acknowledge that the Severance Plan sets forth pre-requisites I must meet in order to receive severance,\nincluding but not limited to execution of the Corporation's standard separation agreement and release of claims. In the event that the\nCorporation fails to comply with its obligations to offer me severance according to the Severance Plan, then Section 2 of this\nAgreement shall be of no further effect. I agree that if I decline the Corporation's offer of severance, I shall continue to be subject to\nthe restrictions in Section 2.\n10.\nInjunctive Relief. Any breach of this Agreement by me will cause irreparable damage to the Corporation and, in the\nevent of such breach, the Corporation shall have, in addition to any and all remedies of law, the right to an injunction, specific\nperformance or other equitable relief to prevent the violation of my obligations hereunder, and without providing a bond to the\nextent permitted by the applicable rules of civil procedure.\n11.\nNo Right of Continued Employment. This Agreement does not create an obligation on the Corporation or any other\nperson or entity to continue my employment.\n5\n12.\nNo Conflicting Agreements. I represent that the performance of my job duties with the Corporation and my compliance\nwith all of the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Corporation.\n13.\nEntire Agreement/No Reliance/No Modifications. This Agreement and any compensation, benefit or equity plan or\nagreement referred to herein including the CVS Caremark Corporation Change in Control Agreement ("CIC Agreement"), to the\nextent those other agreements apply to me, set forth the entire agreement between the parties hereto and fully supersede any and all\nprior and/or supplemental understandings, whether written or oral, between the parties concerning the subject matter of this\nAgreement. Notwithstanding the foregoing, if I am a party to the CIC Agreement, then I understand that in the event of a Change in\nControl, as that term is defined in the CIC, Paragraph 2 of this Agreement shall be null and void. I agree and acknowledge that I\nhave\nnot\nrelied on any representations, promises or agreements of any kind in connection with my decision to accept the terms\nof\nthis Agreement, except for the representations, promises and agreements herein. Any modification to this Agreement must be made\nin writing and signed by me and the Corporation's Chief Human Resources Officer or her authorized representative.\n14.\nNo Waiver. Any waiver by the Corporation of a breach of any provision of this Agreement, or of any other similar\nagreement with any other current or former employee of the Corporation, shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n15.\nSeverability. The parties hereby agree that each provision herein shall be treated as a separate and independent clause,\nand the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if\none or more of the provisions of this Agreement are for any reason held to be excessively broad as to scope, activity, duration,\nsubject or otherwise so as to be unenforceable at law, the parties consent to such provision or provisions being modified or limited\nby the appropriate judicial body (where allowed by applicable law), so as to be enforceable to the maximum extent compatible with\nthe applicable law.\n16.\nSurvival of Employee's Obligations. My obligations under this Agreement shall survive the termination of my\nemployment regardless of the manner of such termination and shall be binding upon my heirs, personal representatives, executors,\nadministrators and legal representatives.\n17.\nCorporation's Right to Assign Agreement. The Corporation has the right to assign this Agreement to its successors\nand assigns without the need for further agreement or consent by me, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n18.\nNon-Assignment. I shall not assign my rights and obligations under this Agreement, in whole or in part, whether by\noperation of law or otherwise, without the prior written consent of the Corporation, and any such assignment contrary to the terms\nhereof shall be null and void and of no force or effect.\n19.\nGoverning Law; Headings. This Agreement shall be governed by and construed in accordance with the laws of the\nstate of Rhode Island. The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to\ncontrol or affect the meaning or construction of any provision of this Agreement.\n6\n20.\nTolling. In the event I violate one of the time-limited restrictions in this Agreement, I agree that the time period for such\nviolated restriction shall be extended by one day for each day I have violated the restriction, up to a maximum extension equal to\nthe length of the original period of the restricted covenant.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed instrument as of the date set forth below.\n/s/ Lisa Bisaccia\nLisa Bisaccia\nChief Human Resources Officer\nCVS Pharmacy, Inc.\nEmployee ID\nDate:\n7\nEXHIBIT A\nList of Prior Inventions - See Section 6\n8\nEXHIBIT B\nNotice Regarding Invention Assignment\n1.\nFor an employee residing in Illinois, Kansas, or North Carolina, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no\nequipment, supplies, facility, or trade secret information of the Corporation was used and which was developed entirely on\nyour own time, unless (a) the invention relates (i) to the business of the Corporation or (ii) to the Corporation's actual or\ndemonstrably anticipated research or development, or (b) the invention results from any work performed by you for the\nCorporation. Illinois 765ILCS1060/1-3, "Employees Patent Act"; Kansas Statutes Section 44-130; North Carolina General\nStatutes Article 10A, Chapter 66, Commerce and Business, Section 66-57.1.\n2.\nFor an employee residing in Utah, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention which was created\nentirely on your own time, and which is not (a) conceived, developed, reduced to practice, or created by you (i) within the\nscope of your employment with the Corporation, (ii) on the Corporation's time, or (iii) with the aid, assistance, or use of any\nof the Corporation's property, equipment, facilities, supplies, resources, or patents, trade secrets, know-how, technology,\nconfidential information, ideas, copy rights, trademarks and service marks and any and all rights, applications and\nregistrations relating to them, (b) the results of any work, services, or duties performed by you for the Corporation, (c) related\nto the industry or trade of the Corporation, or (d) related to the current or demonstrably anticipated business, research, or\ndevelopment of the Corporation. Utah Code Sections 34-39-1 through 34-39-3, "Employee Inventions Act."\n3.\nFor an employee residing in Minnesota, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no equipment,\nsupplies, facility, or trade secret information of the Corporation was used, and which was developed entirely on your own\ntime, and (a) which does not relate (i) directly to the business of the Corporation, or (ii) to the Corporation's actual or\ndemonstrably anticipated research or development, or (b) which does not result from any work performed by you for the\nCorporation. Minnesota Statutes 13A Section 181.78.\n9	EX-10 .27 7 ex1027formofenterprisenon- . htm EXHIBIT 10.27\nCVS Pharmacy, Inc.\nRestrictive Covenant Agreement\nI, _____________________________________, enter into this Restrictive Covenant Agreement (“Agreement”) with CVS\nPharmacy, Inc. (“CVS”), which is effective as of the date I sign the Agreement (the “Effective Date”). In consideration of the\nmutual promises in this Agreement, the parties agree as follows:\n1.\nConsideration for Agreement. In connection with my duties and responsibilities at CVS Caremark Corporation or one\nof its subsidiaries or affiliates (collectively, the “Corporation”), the Corporation will provide me with Confidential Information\nand/or access to the Corporation’s customers and clients and the opportunity to develop and maintain relationships and goodwill\nwith them. In addition, the Corporation has awarded me restricted stock units contingent on the execution of this Agreement and\ncompliance with its terms.\n2.\nNon-Competition. During my employment by the Corporation and during the Non-Competition Period following the\ntermination of my employment for any reason, I will not, directly or indirectly, engage in Competition or provide Consulting or\nAudit Services within the Restricted Area.\na. Competition. Engaging in “Competition” means providing services to a Competitor of the Corporation (whether as an\nemployee, independent contractor, consultant, principal, agent, partner, officer, director, investor, or shareholder, except as a\nshareholder of less than one percent of a publicly traded company) that: (i) are the same or similar in function or purpose to the\nservices I provided to the Corporation during the last two years of my employment by the Corporation, or (ii) will likely result in\nthe disclosure of Confidential Information to a Competitor or the use of Confidential Information on behalf of a Competitor. If a\nrepresentative of the Corporation, during my employment or the Non-Competition Period, requests that I identify the company or\nbusiness to which I will be or am providing services, or with which I will be or am employed, and requests that I provide\ninformation about the services that I am or will be providing to such entity, I shall provide the Corporation with a written statement\ndetailing the identity of the entity and the nature of the services that I am or will be providing to such entity with sufficient detail to\nallow the Corporation to independently assess whether I am or will be in violation of this Agreement. Such statement shall be\ndelivered to the Corporation’s Chief Human Resources Officer or her authorized delegate via personal delivery or overnight\ndelivery within five calendar days of my receipt of such request.\nb. Competitor. A “Competitor” for purposes of this Agreement shall mean any person, corporation or other entity that\ncompetes with one or more of the business offerings of the Corporation. As of the Effective Date, the Corporation’s business\nofferings include: (i) pharmacy benefits management (“PBM”), including: (a) the administration of pharmacy benefits for\nbusinesses, government agencies and health plans; (b) mail order pharmacy; (c) specialty pharmacy, including but not limited to\ninfusion and related services; (d) Medicare Part D services; (ii) retail, which includes the sale of prescription drugs, over-the-counter\nmedications, beauty products and cosmetics, photo finishing, seasonal merchandise, greeting cards, convenience foods and other\nproduct lines that are sold by the Corporation’s retail division; and (iii) retail health care (“MinuteClinic”). A person or entity shall\nnot be considered a retail Competitor if such entity derives annual gross revenues from its business in an amount that is less than 5%\nof the Corporation’s gross revenues from its retail business during its most recently completed fiscal year. The Parties acknowledge\nthat both the Corporation’s products and services and the entities\nthat compete with the Corporation’s products and services evolve and that an entity will be considered a Competitor if it provides\nproducts or services competitive with the products and services provided by the Corporation within the last two years of your\nemployment.\nGiven my role in the Corporation, I agree to this enterprise-wide definition of non-competition that will prevent me from\nproviding services to the Corporation’s PBM, retail and MinuteClinic Competitors during the relevant time period.\nc. Consulting or Audit Services. “Consulting or Audit Services” shall mean any activity that involves providing audit\nreview or other consulting or advisory services with respect to any relationship or prospective relationship between the Corporation\nand any third party, including but not limited to PBM clients, suppliers or vendors and that is likely to result in the use or disclosure\nof Confidential Information.\nd. Non-Competition Period. The “Non-Competition Period” shall be the period of 18 months following the termination\nof my employment with the Corporation for any reason.\ne. Restricted Area. “Restricted Area” refers to those states within the United States in which the Corporation conducts its\nbusiness, as well as the District of Columbia and Puerto Rico. To the extent I worked on international projects in Brazil and/or\nIreland or other countries where the Corporation may conduct business, the Restricted Area includes those countries and\nprospective countries.\n3.\nNon-Solicitation. During the Non-Solicitation Period, which shall be 18 months following the termination of my\nemployment with the Corporation for any reason, I will not, unless a duly authorized officer of the Corporation gives me written\nauthorization to do so:\na.\ninterfere with the Corporation’s relationship with its Business Partners by soliciting or communicating (regardless\nof who initiates the communication) with a Business Partner to: (i) induce or encourage the Business Partner to stop doing business\nor reduce its business with the Corporation, or (ii) buy a product or service that competes with a product or service offered by the\nCorporation’s business. “Business Partner” means: a customer (person or entity), prospective customer (person or entity), supplier,\nmanufacturer, broker, hospital, hospital system, and/or pharmaceutical company with whom the Corporation has a business\nrelationship and with which I had business-related contact or dealings, or about which I received Confidential Information, in the\ntwo years prior to the termination of my employment with the Corporation. A Business Partner does not include a customer,\nsupplier, manufacturer, broker, hospital, hospital system, pharmaceutical company that has fully and finally ceased doing any\nbusiness with the Corporation independent of any conduct or communications by me or breach of this Agreement. Nothing in this\nParagraph 3(a) shall prevent me from working as a staff pharmacist or in another retail position wherein I would be providing or\nselling prescriptions or other products directly to consumers.\nb.\nwork on a Corporation account on behalf of a Business Partner or serve as the representative of a Business\nPartner for the Corporation.\nc.\ninterfere with the Corporation’s relationship with any employee or contractor of the Corporation by: (i) soliciting\nor communicating with the employee or contractor to induce or encourage him or her to leave the Corporation’s employ or\nengagement (regardless of who first initiates the communication); (ii) helping another person or entity evaluate such employee or\ncontractor as an\n2\nemployment or contractor candidate; or (iii) otherwise helping any person or entity hire an employee or contractor away from the\nCorporation.\n4.\nNon-Disclosure of Confidential Information.\na. Subject to Section 7 below, I will not at any time, whether during or after the termination of my employment, disclose\nto any person or entity any of the Corporation’s Confidential Information, except as may be appropriately required in the ordinary\ncourse of performing my duties as an employee of the Corporation. The Corporation’s Confidential Information includes but is not\nlimited to the following non-public information: trade secrets; computer code generated or developed by the Corporation; software\nor programs and related documentation; strategic compilations and analysis; strategic processes; business or financial methods,\npractices and plans; non-public costs and prices; operating margins; marketing, merchandising and selling techniques and\ninformation; customer lists; details of customer agreements; pricing arrangements with drug manufacturers, including but not\nlimited to any discounts and/or rebates; pharmacy reimbursement rates; expansion strategies; real estate strategies; operating\nstrategies; sources of supply; patient records; and confidential information of third parties which is given to the Corporation\npursuant to an obligation or agreement to keep such information confidential (collectively, “Confidential Information”). I shall not\nuse or attempt to use any Confidential Information on behalf of any person or entity other than the Corporation, or in any manner\nwhich may injure or cause loss or may be calculated to injure or cause loss, whether directly or indirectly, to the Corporation. For\nemployees residing in Connecticut, these restrictions on use or disclosure of Confidential Information will only apply for three (3)\nyears after the end of my employment where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue apply to trade secret information for as long as the information at issue remains qualified as a trade secret.\nb. During my employment, I shall not make, use, or permit to be used, any materials of any nature relating to any matter\nwithin the scope of the business of the Corporation or concerning any of its dealings or affairs other than for the benefit of the\nCorporation. I shall not, after the termination of my employment, use or permit to be used any such materials and shall return same\nin accordance with Section 5 below.\n5.\nOwnership and Return of the Corporation’s Property. On or before my final date of employment with the\nCorporation, I shall return to the Corporation all property of the Corporation in my possession, custody or control, including but not\nlimited to the originals and copies of any information provided to or acquired by me in connection with the performance of my\nduties for the Corporation, such as files, correspondence, communications, memoranda, e-mails, slides, records, and all other\ndocuments, no matter how produced or reproduced, all computer equipment, communication devices (including but not limited to\nany mobile phone, BlackBerry or other portable digital assistant or device), computer programs and/or files, and all office keys and\naccess cards. I agree that all the items described in this Section are the sole property of the Corporation.\n6.\nRights to Inventions, Works.\na. Assignment of Inventions. All inventions, original works of authorship, developments, concepts, improvements,\ndesigns, discoveries, ideas, trademarks or trade secrets, whether patentable or otherwise protectable under similar law, made,\nconceived or developed by me, whether alone or jointly with others, from the date of my initial employment by the Corporation and\ncontinuing until the end of any period during which I am employed by the Corporation, relating or pertaining in any way to my\nemployment with or the business of the Corporation (collectively referred to as “Inventions”) shall be\n3\npromptly disclosed in writing to the Corporation. I hereby assign to the Corporation, or its designee, all of my rights, title and\ninterest to such Inventions. All original works of authorship which are made by me (solely or jointly with others) within the scope\nof and during the period of my employment with the Corporation and which are protectable by copyright are “works made for hire,”\nas that term is defined in the United States Copyright Act and as such are the sole property of the Corporation. The decision whether\nto commercialize or market any Invention developed by me solely or jointly with others is within the Corporation’s sole discretion\nand for the Corporation’s sole benefit and no royalty will be due to me as a result of the Corporation’s efforts to commercialize or\nmarket any such Invention.\nb. Inventions Retained and Licensed. I have attached hereto as Exhibit A, a list describing all inventions, original works\nof authorship, developments, improvements, and trade secrets which were made by me prior to my employment with the\nCorporation (“Prior Inventions”), which belong to me and are not assigned to the Corporation hereunder. If no such list is attached, I\nrepresent that there are no such Prior Inventions. I will not incorporate, or permit to be incorporated, any Prior Invention owned by\nme or in which I have an interest into a Corporation product, process or machine without the Corporation’s prior written consent.\nNotwithstanding the foregoing sentence, if, in the course of my employment with the Corporation, I incorporate into a Corporation\nproduct, process or machine a Prior Invention owned by me or in which I have an interest, the Corporation is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\nc. Patent and Copyright Registrations. I will assist the Corporation, or its designee, at the Corporation’s expense, in\nevery proper way to secure the Corporation’s rights in the Inventions and any copyrights, patents, mask work rights or other\nintellectual property rights relating thereto, including, but not limited to, the disclosure to the Corporation of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other\ninstruments which the Corporation shall deem necessary in order to apply for and obtain such rights and in order to assign and\nconvey to the Corporation, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such\nInventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. My obligation to\nexecute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after my employment\nends for any reason and/or after the termination of this Agreement. If the Corporation is unable because of my mental or physical\nincapacity or for any other reason to secure my signature to apply for or to pursue any application for any United States or foreign\npatents or copyright registrations covering Inventions or original works of authorship assigned to the Corporation as above, then I\nhereby irrevocably designate and appoint the Corporation and its duly authorized officers and agents as my agent and attorney in\nfact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to\nfurther the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if\nexecuted by me.\nd. Exception to Assignments. I understand that if I am an employee in Illinois, Kansas, North Carolina, Utah or\nMinnesota, I should refer to Exhibit B (incorporated herein for all purposes) for important limitations on the scope of the provisions\nof this Agreement concerning assignment of Inventions. I will advise the Corporation promptly in writing of any inventions that I\nbelieve meet the criteria in Exhibit B and that are not otherwise disclosed on Exhibit A.\n4\n7.\nCooperation.\na. In the event that I receive a subpoena, deposition notice, interview request, or other process or order to testify or\nproduce Confidential Information or any other information or property of the Corporation, I shall promptly: (a) notify the\nCorporation of the item, document, or information sought by such subpoena, deposition notice, interview request, or other process\nor order; (b) furnish the Corporation with a copy of said subpoena, deposition notice, interview request, or other process or order;\nand (c) provide reasonable cooperation with respect to any procedure that the Corporation may initiate to protect Confidential\nInformation or other interests. If the Corporation objects to the subpoena, deposition notice, interview request, process, or order, I\nshall cooperate to ensure that there shall be no disclosure until the court or other applicable entity has ruled upon the objection, and\nthen only in accordance with the ruling so made. If no such objection is made despite a reasonable opportunity to do so, I shall be\nentitled to comply with the subpoena, deposition, notice, interview request, or other process or order provided that I have fulfilled\nthe above obligations.\nb. I will cooperate fully with the Corporation, its affiliates, and their legal counsel in connection with any action,\nproceeding, or dispute arising out of matters with which I was directly or indirectly involved while serving as an employee of the\nCorporation, its predecessors, subsidiaries or affiliates. This cooperation shall include, but shall not be limited to, meeting with, and\nproviding information to, the Corporation and its legal counsel, maintaining the confidentiality of any past or future privileged\ncommunications with the Corporation’s legal counsel (outside and in-house), and making myself available to testify truthfully by\naffidavit, in depositions, or in any other forum on behalf of the Corporation. The Corporation agrees to reimburse me for any\nreasonable and necessary out-of-pocket costs associated with my cooperation.\n8.\nLimitation on Restrictions. Nothing in this Agreement is intended to or shall interfere with my right to file charges or\nparticipate in a proceeding with any appropriate federal, state or local government agency, including the Equal Employment\nOpportunity Commission or the National Labor Relations Board, or to prohibit me from communicating or cooperating with any\nsuch agency in its investigation.\n9.\nEligibility for Severance Pay. If my employment with the Corporation terminates under circumstances in which I am\neligible for severance under the Corporation’s Severance Plan for Non-Store Employees (the “Severance Plan”), the Corporation\nwill offer me severance in accordance with the Severance Plan and the length of the Non-Competition Period will match the length\nof the severance period. I acknowledge that the Severance Plan sets forth pre-requisites I must meet in order to receive severance,\nincluding but not limited to execution of the Corporation’s standard separation agreement and release of claims. In the event that the\nCorporation fails to comply with its obligations to offer me severance according to the Severance Plan, then Section 2 of this\nAgreement shall be of no further effect. I agree that if I decline the Corporation’s offer of severance, I shall continue to be subject to\nthe restrictions in Section 2.\n10.\nInjunctive Relief. Any breach of this Agreement by me will cause irreparable damage to the Corporation and, in the\nevent of such breach, the Corporation shall have, in addition to any and all remedies of law, the right to an injunction, specific\nperformance or other equitable relief to prevent the violation of my obligations hereunder, and without providing a bond to the\nextent permitted by the applicable rules of civil procedure.\n11.\nNo Right of Continued Employment. This Agreement does not create an obligation on the Corporation or any other\nperson or entity to continue my employment.\n5\n12.\nNo Conflicting Agreements. I represent that the performance of my job duties with the Corporation and my compliance\nwith all of the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Corporation.\n13.\nEntire Agreement/No Reliance/No Modifications. This Agreement and any compensation, benefit or equity plan or\nagreement referred to herein including the CVS Caremark Corporation Change in Control Agreement (“CIC Agreement”), to the\nextent those other agreements apply to me, set forth the entire agreement between the parties hereto and fully supersede any and all\nprior and/or supplemental understandings, whether written or oral, between the parties concerning the subject matter of this\nAgreement. Notwithstanding the foregoing, if I am a party to the CIC Agreement, then I understand that in the event of a Change in\nControl, as that term is defined in the CIC, Paragraph 2 of this Agreement shall be null and void. I agree and acknowledge that I\nhave not relied on any representations, promises or agreements of any kind in connection with my decision to accept the terms of\nthis Agreement, except for the representations, promises and agreements herein. Any modification to this Agreement must be made\nin writing and signed by me and the Corporation’s Chief Human Resources Officer or her authorized representative.\n14.\nNo Waiver. Any waiver by the Corporation of a breach of any provision of this Agreement, or of any other similar\nagreement with any other current or former employee of the Corporation, shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n15.\nSeverability. The parties hereby agree that each provision herein shall be treated as a separate and independent clause,\nand the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if\none or more of the provisions of this Agreement are for any reason held to be excessively broad as to scope, activity, duration,\nsubject or otherwise so as to be unenforceable at law, the parties consent to such provision or provisions being modified or limited\nby the appropriate judicial body (where allowed by applicable law), so as to be enforceable to the maximum extent compatible with\nthe applicable law.\n16.\nSurvival of Employee’s Obligations. My obligations under this Agreement shall survive the termination of my\nemployment regardless of the manner of such termination and shall be binding upon my heirs, personal representatives, executors,\nadministrators and legal representatives.\n17.\nCorporation’s Right to Assign Agreement. The Corporation has the right to assign this Agreement to its successors\nand assigns without the need for further agreement or consent by me, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n18.\nNon-Assignment. I shall not assign my rights and obligations under this Agreement, in whole or in part, whether by\noperation of law or otherwise, without the prior written consent of the Corporation, and any such assignment contrary to the terms\nhereof shall be null and void and of no force or effect.\n19.\nGoverning Law; Headings. This Agreement shall be governed by and construed in accordance with the laws of the\nstate of Rhode Island. The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to\ncontrol or affect the meaning or construction of any provision of this Agreement.\n6\n20.\nTolling. In the event I violate one of the time-limited restrictions in this Agreement, I agree that the time period for such\nviolated restriction shall be extended by one day for each day I have violated the restriction, up to a maximum extension equal to\nthe length of the original period of the restricted covenant.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed instrument as of the date set forth below.\n__________________________\n/s/ Lisa Bisaccia\nLisa Bisaccia\nChief Human Resources Officer\n__________________________\nCVS Pharmacy, Inc.\nEmployee ID\nDate: _____________________\n7\nEXHIBIT A\nList of Prior Inventions – See Section 6\n8\nEXHIBIT B\nNotice Regarding Invention Assignment\n1. For an employee residing in Illinois, Kansas, or North Carolina, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no\nequipment, supplies, facility, or trade secret information of the Corporation was used and which was developed entirely on\nyour own time, unless (a) the invention relates (i) to the business of the Corporation or (ii) to the Corporation’s actual or\ndemonstrably anticipated research or development, or (b) the invention results from any work performed by you for the\nCorporation. Illinois 765ILCS1060/1-3, “Employees Patent Act”; Kansas Statutes Section 44-130; North Carolina General\nStatutes Article 10A, Chapter 66, Commerce and Business, Section 66-57 .1.\n2. For an employee residing in Utah, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention which was created\nentirely on your own time, and which is not (a) conceived, developed, reduced to practice, or created by you (i) within the\nscope of your employment with the Corporation, (ii) on the Corporation’s time, or (iii) with the aid, assistance, or use of any\nof the Corporation’s property, equipment, facilities, supplies, resources, or patents, trade secrets, know-how, technology,\nconfidential information, ideas, copy rights, trademarks and service marks and any and all rights, applications and\nregistrations relating to them, (b) the results of any work, services, or duties performed by you for the Corporation, (c) related\nto the industry or trade of the Corporation, or (d) related to the current or demonstrably anticipated business, research, or\ndevelopment of the Corporation. Utah Code Sections 34-39 -1 through 34-39 -3, “Employee Inventions Act.”\n3. For an employee residing in Minnesota, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no equipment,\nsupplies, facility, or trade secret information of the Corporation was used, and which was developed entirely on your own\ntime, and (a) which does not relate (i) directly to the business of the Corporation, or (ii) to the Corporation’s actual or\ndemonstrably anticipated research or development, or (b) which does not result from any work performed by you for the\nCorporation. Minnesota Statutes 13A Section 181.78 .\n9
f9b58bc2953d789ffbd98878be20199d.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 dex99d2.htm MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit (d)(2)\nConfidential\nGILEAD SCIENCES, INC.\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Mutual Confidential Disclosure Agreement (“Agreement”) is made effective as of May 19, 2006 (“Effective Date”) by and between Myogen,\na Delaware corporation with offices at 7575 West 103rd Ave, #102, Westminster, CO 80021 (“Company”), and Gilead Sciences, Inc., a Delaware\ncorporation with offices at 333 Lakeside Drive, Foster City, California 94404, USA (together with its affiliates and subsidiaries, “Gilead”), and shall\ngovern the disclosure by a party (“Discloser”) to the other party (“Recipient”) of certain of Discloser’s confidential and proprietary information for\nthe evaluation, negotiation and possible entry into a potential business relationship between the parties.\n1. The Confidential Information, as defined in Section 2, is being disclosed solely to enable Company and Gilead to evaluate, discuss, negotiate and\npossibly enter into a business transaction (the “Purpose”).\n2. “Confidential Information” means confidential or proprietary information of Discloser disclosed in oral, written or other tangible form or\notherwise learned by Recipient under this Agreement, that directly relates to the Purpose and should reasonably be believed to be confidential or\nproprietary to Discloser, including but not limited to Discloser’s: research, development, preclinical and clinical programs, data and results;\npharmaceutical or biologic candidates and products; inventions, works of authorship, trade secrets, processes, conceptions, formulas, patents, patent\napplications, and licenses; business, product, marketing, sales, scientific and technical strategies, programs and results, including costs and prices;\nsuppliers, manufacturers, customers, market data, personnel, and consultants; and other confidential or proprietary matters related to the Purpose.\n3. Recipient:\n(a) shall not use Confidential Information except for the Purpose;\n(b) will hold Confidential Information in strictest confidence and shall not disclose Confidential Information to others, except for its\nemployees or agents who require Confidential Information in order to carry out the Recipient’s obligations under this Agreement in relation to the\nPurpose and who are subject to binding obligations of confidentiality and restricted use at least as protective as those of this Agreement;\n(c) will protect the confidentiality of Confidential Information using at least the same level of efforts and measures used to protect its own\nconfidential information, and at least commercially reasonable efforts and measures, including without limitation limiting access to Confidential\nInformation commensurate with the Purpose under this Agreement; and\n(d) will notify Discloser as promptly as practicable of any unauthorized use or disclosure of Confidential Information by Recipient, its\nemployees or agents of which Recipient becomes aware.\nprovided, however, that the obligations of this Section 3 shall not apply to any Confidential Information that:\n(i) Recipient knew prior to learning it under this Agreement, as demonstrated by written records predating the date it was learned under\nthis Agreement;\n(ii) is now, or becomes in the future, publicly available information other than by an act or omission of Recipient;\n(iii) a third party discloses to Recipient, without any confidentiality obligations and without any breach of any direct or indirect\nobligation of confidentiality to Discloser, as shown by Recipient’s written records contemporaneous with such third party disclosure; or\n(iv) Recipient independently develops without use of or reference to Confidential Information, as demonstrated by Recipient’s\nindependent written records contemporaneous with such development.\n4. Notwithstanding other provisions of this Agreement, Recipient may disclose Confidential Information to the extent and to the persons or entities\nrequired under applicable governmental law, rule, regulation or order provided that Recipient (a) first gives prompt written notice of such disclosure\nrequirement to Discloser so as to enable Discloser to seek any limitations on or exemptions from such disclosure requirement and (b) reasonably\ncooperates at Discloser’s request in any such efforts by Discloser.\n-1-\nConfidential\n5. Upon either the completion of Recipient’s use of Confidential Information for the Purpose under this Agreement or Discloser’s request for any\nreason, Recipient will (a) immediately cease all use of Confidential Information and (b) promptly, return to Discloser or, if instructed by Discloser.\ndestroy all Confidential Information, including any copies, extracts, summaries, or derivative works containing Confidential Information, and certify\nin writing to Discloser the completion of such return and/or destruction, provided, however, that Recipient may retain one copy in its legal archives\nsolely for the purpose of monitoring Recipient’s surviving obligations under this Agreement.\n6. Discloser retains all right, title and interest in and to Confidential Information. This Agreement does not and shall not be construed to give\nRecipient any right or license by implication or otherwise to any Confidential Information or under any intellectual property or other rights owned by\nor licensed to Discloser. Neither party has any the obligation to continue discussions or negotiations or to enter into any transaction with the other\nparty, and either party may terminate discussions or negotiations at any time.\n7. Each party’s obligations under this Agreement as a Recipient shall expire five (5) years from the Effective Date.\n8. Recipient acknowledges that any actual or threatened breach of this Agreement may cause Discloser immediate and irreparable harm that cannot\nbe adequately compensated by monetary damages and it therefore agrees that Discloser shall not be required to demonstrate irreparable harm in\norder to seek or obtain injunctive relief for actual or threatened breach of this Agreement. In addition to any injunctive relief, Discloser may seek any\nother remedies available to it at law or equity.\n9. Any purported assignment or delegation by a party of this Agreement in whole or in part without the prior written consent of the other party shall\nbe void. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\n10. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California, regardless of any choice of law\nprinciples.\nThis Agreement is executed as of the Effective Date by the parties’ duly authorized representatives.\nMYOGEN, INC.\nGILEAD SCIENCES, INC.\nBy: /s/ Andrew D. Dickinson\nBy: /s/ John F. Milligan, Ph.D .\nName: Andrew D. Dickinson\nName: John F. Milligan, Ph.D.\nTitle: Vice President, General Counsel & Corporate Secretary\nTitle: EVP and CFO\n-2-	EX-99.(D)(2) 9 dex99d2.htm MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit (d)(2)\nConfidential\nGILEAD SCIENCES, INC.\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Mutual Confidential Disclosure Agreement (“Agreement”) is made effective as of May 19, 2006 (“Effective Date”) by and between Myogen,\na Delaware corporation with offices at 7575 West 103 Ave, #102, Westminster, CO 80021 (“Company™), and Gilead Sciences, Inc., a Delaware\ncorporation with offices at 333 Lakeside Drive, Foster City, California 94404, USA (together with its affiliates and subsidiaries, “Gilead”), and shall\ngovern the disclosure by a party (“Discloser™) to the other party (“Recipient”) of certain of Discloser’s confidential and proprietary information for\nthe evaluation, negotiation and possible entry into a potential business relationship between the parties.\n1. The Confidential Information, as defined in Section 2, is being disclosed solely to enable Company and Gilead to evaluate, discuss, negotiate and\npossibly enter into a business transaction (the “Purpose”).\n2. “Confidential Information” means confidential or proprietary information of Discloser disclosed in oral, written or other tangible form or\notherwise learned by Recipient under this Agreement, that directly relates to the Purpose and should reasonably be believed to be confidential or\nproprietary to Discloser, including but not limited to Discloser’s: research, development, preclinical and clinical programs, data and results;\npharmaceutical or biologic candidates and products; inventions, works of authorship, trade secrets, processes, conceptions, formulas, patents, patent\napplications, and licenses; business, product, marketing, sales, scientific and technical strategies, programs and results, including costs and prices;\nsuppliers, manufacturers, customers, market data, personnel, and consultants; and other confidential or proprietary matters related to the Purpose.\n3. Recipient:\n(a) shall not use Confidential Information except for the Purpose;\n(b) will hold Confidential Information in strictest confidence and shall not disclose Confidential Information to others, except for its\nemployees or agents who require Confidential Information in order to carry out the Recipient’s obligations under this Agreement in relation to the\nPurpose and who are subject to binding obligations of confidentiality and restricted use at least as protective as those of this Agreement;\n(c) will protect the confidentiality of Confidential Information using at least the same level of efforts and measures used to protect its own\nconfidential information, and at least commercially reasonable efforts and measures, including without limitation limiting access to Confidential\nInformation commensurate with the Purpose under this Agreement; and\n(d) will notify Discloser as promptly as practicable of any unauthorized use or disclosure of Confidential Information by Recipient, its\nemployees or agents of which Recipient becomes aware.\nprovided, however, that the obligations of this Section 3 shall not apply to any Confidential Information that:\n(i) Recipient knew prior to learning it under this Agreement, as demonstrated by written records predating the date it was learned under\nthis Agreement;\n(ii) is now, or becomes in the future, publicly available information other than by an act or omission of Recipient;\n(iii) a third party discloses to Recipient, without any confidentiality obligations and without any breach of any direct or indirect\nobligation of confidentiality to Discloser, as shown by Recipient’s written records contemporaneous with such third party disclosure; or\n(iv) Recipient independently develops without use of or reference to Confidential Information, as demonstrated by Recipient’s\nindependent written records contemporaneous with such development.\n4. Notwithstanding other provisions of this Agreement, Recipient may disclose Confidential Information to the extent and to the persons or entities\nrequired under applicable governmental law, rule, regulation or order provided that Recipient (a) first gives prompt written notice of such disclosure\nrequirement to Discloser so as to enable Discloser to seek any limitations on or exemptions from such disclosure requirement and (b) reasonably\ncooperates at Discloser’s request in any such efforts by Discloser.\n-1-\nConfidential\n5. Upon either the completion of Recipient’s use of Confidential Information for the Purpose under this Agreement or Discloser’s request for any\nreason, Recipient will (a) immediately cease all use of Confidential Information and (b) promptly, return to Discloser or, if instructed by Discloser.\ndestroy all Confidential Information, including any copies, extracts, summaries, or derivative works containing Confidential Information, and certify\nin writing to Discloser the completion of such return and/or destruction, provided, however, that Recipient may retain one copy in its legal archives\nsolely for the purpose of monitoring Recipient’s surviving obligations under this Agreement.\n6. Discloser retains all right, title and interest in and to Confidential Information. This Agreement does not and shall not be construed to give\nRecipient any right or license by implication or otherwise to any Confidential Information or under any intellectual property or other rights owned by\nor licensed to Discloser. Neither party has any the obligation to continue discussions or negotiations or to enter into any transaction with the other\nparty, and either party may terminate discussions or negotiations at any time.\n7. Each party’s obligations under this Agreement as a Recipient shall expire five (5) years from the Effective Date.\n8. Recipient acknowledges that any actual or threatened breach of this Agreement may cause Discloser immediate and irreparable harm that cannot\nbe adequately compensated by monetary damages and it therefore agrees that Discloser shall not be required to demonstrate irreparable harm in\norder to seek or obtain injunctive relief for actual or threatened breach of this Agreement. In addition to any injunctive relief, Discloser may seek any\nother remedies available to it at law or equity.\n9. Any purported assignment or delegation by a party of this Agreement in whole or in part without the prior written consent of the other party shall\nbe void. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\n10. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California, regardless of any choice of law\nprinciples.\nThis Agreement is executed as of the Effective Date by the parties’ duly authorized representatives.\nMYOGEN, INC. GILEAD SCIENCES, INC.\nBy: /s/ Andrew D. Dickinson By: /s/ John F. Milligan, Ph.D.\nName: Andrew D. Dickinson Name: John F. Milligan, Ph.D.\nTitle:  Vice President, General Counsel & Corporate Secretary Title: EVP and CFO\n_2-	EX-99.(D)(2) 9 dex99d2.htm MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit (d)(2)\nConfidential\nGILEAD SCIENCES, INC.\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Mutual Confidential Disclosure Agreement ("Agreement") is made effective as of May 19, 2006 ("Effective Date") by and between Myogen,\na Delaware corporation with offices at 7575 West 103rd Ave, #102, Westminster, CO 80021 ("Company"), and Gilead Sciences, Inc., a Delaware\ncorporation with offices at 333 Lakeside Drive, Foster City, California 94404, USA (together with its affiliates and subsidiaries, "Gilead"), and shall\ngovern the disclosure by a party ("Discloser") to the other party ("Recipient") of certain of Discloser's confidential and proprietary information for\nthe evaluation, negotiation and possible entry into a potential business relationship between the parties.\n1. The Confidential Information, as defined in Section 2, is being disclosed solely to enable Company and Gilead to evaluate, discuss, negotiate and\npossibly enter into a business transaction (the "Purpose").\n2. "Confidential Information" means confidential or proprietary information of Discloser disclosed in oral, written or other tangible form or\notherwise learned by Recipient under this Agreement, that directly relates to the Purpose and should reasonably be believed to be confidential or\nproprietary to Discloser, including but not limited to Discloser's: research, development, preclinical and clinical programs, data and results;\npharmaceutical or biologic candidates and products; inventions, works of authorship, trade secrets, processes, conceptions, formulas, patents, patent\napplications, and licenses; business, product, marketing, sales, scientific and technical strategies, programs and results, including costs and prices;\nsuppliers, manufacturers, customers, market data, personnel, and consultants; and other confidential or proprietary matters related to the Purpose.\n3. Recipient:\n(a) shall not use Confidential Information except for the Purpose;\n(b) will hold Confidential Information in strictest confidence and shall not disclose Confidentia Information to others, except for its\nemployees or agents who require Confidential Information in order to carry out the Recipient's obligations under this Agreement in relation to the\nPurpose and who are subject to binding obligations of confidentiality and restricted use at least as protective as those of this Agreement;\n(c) will protect the confidentiality of Confidential Information using at least the same level of efforts and measures used to protect its own\nconfidential information, and at least commercially reasonable efforts and measures, including without limitation limiting access to Confidential\nInformation commensurate with the Purpose under this Agreement; and\n(d) will notify Discloser as promptly as practicable of any unauthorized use or disclosure of Confidentia Information by Recipient, its\nemployees or agents of which Recipient becomes aware.\nprovided, however, that the obligations of this Section 3 shall not apply to any Confidential Information that:\n(i) Recipient knew prior to learning it under this Agreement, as demonstrated by written records predating the date it was learned under\nthis Agreement;\n(ii) is now, or becomes in the future, publicly available information other than by an act or omission of Recipient;\n(iii) a third party discloses to Recipient, without any confidentiality obligations and without any breach of any direct or indirect\nobligation of confidentiality to Discloser, as shown by Recipient's written records contemporaneous with such third party disclosure; or\n(iv) Recipient independently develops without use of or reference to Confidential Information, as demonstrated by Recipient's\nindependent written records contemporaneous with such development.\n4.\nNotwithstanding other provisions of this Agreement, Recipient may disclose Confidential Information to the extent and to the persons or entities\nrequired under applicable governmental law, rule, regulation or order provided that Recipient (a) first gives prompt written notice of such disclosure\nrequirement to Discloser so as to enable Discloser to seek any limitations on or exemptions from such disclosure requirement and (b) reasonably\ncooperates at Discloser's request in any such efforts by Discloser.\n1\nConfidential\n5. Upon either the completion of Recipient's use of Confidential Information for the Purpose under this Agreement or Discloser's request for any\nreason, Recipient will (a) immediately cease all use of Confidential Information and (b) promptly, return to Discloser or, if instructed by Discloser.\ndestroy all Confidential Information, including any copies, extracts, summaries, or derivative works containing Confidential Information, and certify\nin\nwriting to Discloser the completion of such return and/or destruction, provided, however, that Recipient may retain one copy in its legal archives\nsolely for the purpose of monitoring Recipient's surviving obligations under this Agreement.\n6. Discloser retains all right, title and interest in and to Confidential Information. This Agreement does not and shall not be construed to give\nRecipient any right or license by implication or otherwise to any Confidential Information or under any intellectual property or other rights owned by\nor\nlicensed to Discloser. Neither party has any the obligation to continue discussions or negotiations or to enter into any transaction with the other\nparty, and either party may terminate discussions or negotiations at any time.\n7. Each party's obligations under this Agreement as a Recipient shall expire five (5) years from the Effective Date.\n8. Recipient acknowledges that any actual or threatened breach of this Agreement may cause Discloser immediate and irreparable harm that cannot\nbe adequately compensated by monetary damages and it therefore agrees that Discloser shall not be required to demonstrate irreparable harm in\norder to seek or obtain injunctive relief for actual or threatened breach of this Agreement. In addition to any injunctive relief, Discloser may seek any\nother remedies available to it at law or equity.\n9. Any purported assignment or delegation by a party of this Agreement in whole or in part without the prior written consent of the other party shall\nbe void. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\n10. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California, regardless of any choice of law\nprinciples.\nThis Agreement is executed as of the Effective Date by the parties' duly authorized representatives.\nMYOGEN, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Andrew D. Dickinson\nBy:\n/s/ John F. Milligan, Ph.D.\nName: Andrew D. Dickinson\nName: John F. Milligan, Ph.D.\nTitle: Vice President, General Counsel & Corporate Secretary\nTitle: EVP and CFO\n2	EX-99.(D)(2) 9 dex99d2.htm MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit (d)(2)\nConfidential\nGILEAD SCIENCES, INC.\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Mutual Confidential Disclosure Agreement (“Agreement”) is made effective as of May 19, 2006 (“Effective Date”) by and between Myogen,\na Delaware corporation with offices at 7575 West 103rd Ave, #102, Westminster, CO 80021 (“Company”), and Gilead Sciences, Inc., a Delaware\ncorporation with offices at 333 Lakeside Drive, Foster City, California 94404, USA (together with its affiliates and subsidiaries, “Gilead”), and shall\ngovern the disclosure by a party (“Discloser”) to the other party (“Recipient”) of certain of Discloser’s confidential and proprietary information for\nthe evaluation, negotiation and possible entry into a potential business relationship between the parties.\n1. The Confidential Information, as defined in Section 2, is being disclosed solely to enable Company and Gilead to evaluate, discuss, negotiate and\npossibly enter into a business transaction (the “Purpose”).\n2. “Confidential Information” means confidential or proprietary information of Discloser disclosed in oral, written or other tangible form or\notherwise learned by Recipient under this Agreement, that directly relates to the Purpose and should reasonably be believed to be confidential or\nproprietary to Discloser, including but not limited to Discloser’s: research, development, preclinical and clinical programs, data and results;\npharmaceutical or biologic candidates and products; inventions, works of authorship, trade secrets, processes, conceptions, formulas, patents, patent\napplications, and licenses; business, product, marketing, sales, scientific and technical strategies, programs and results, including costs and prices;\nsuppliers, manufacturers, customers, market data, personnel, and consultants; and other confidential or proprietary matters related to the Purpose.\n3. Recipient:\n(a) shall not use Confidential Information except for the Purpose;\n(b) will hold Confidential Information in strictest confidence and shall not disclose Confidential Information to others, except for its\nemployees or agents who require Confidential Information in order to carry out the Recipient’s obligations under this Agreement in relation to the\nPurpose and who are subject to binding obligations of confidentiality and restricted use at least as protective as those of this Agreement;\n(c) will protect the confidentiality of Confidential Information using at least the same level of efforts and measures used to protect its own\nconfidential information, and at least commercially reasonable efforts and measures, including without limitation limiting access to Confidential\nInformation commensurate with the Purpose under this Agreement; and\n(d) will notify Discloser as promptly as practicable of any unauthorized use or disclosure of Confidential Information by Recipient, its\nemployees or agents of which Recipient becomes aware.\nprovided, however, that the obligations of this Section 3 shall not apply to any Confidential Information that:\n(i) Recipient knew prior to learning it under this Agreement, as demonstrated by written records predating the date it was learned under\nthis Agreement;\n(ii) is now, or becomes in the future, publicly available information other than by an act or omission of Recipient;\n(iii) a third party discloses to Recipient, without any confidentiality obligations and without any breach of any direct or indirect\nobligation of confidentiality to Discloser, as shown by Recipient’s written records contemporaneous with such third party disclosure; or\n(iv) Recipient independently develops without use of or reference to Confidential Information, as demonstrated by Recipient’s\nindependent written records contemporaneous with such development.\n4. Notwithstanding other provisions of this Agreement, Recipient may disclose Confidential Information to the extent and to the persons or entities\nrequired under applicable governmental law, rule, regulation or order provided that Recipient (a) first gives prompt written notice of such disclosure\nrequirement to Discloser so as to enable Discloser to seek any limitations on or exemptions from such disclosure requirement and (b) reasonably\ncooperates at Discloser’s request in any such efforts by Discloser.\n-1-\nConfidential\n5. Upon either the completion of Recipient’s use of Confidential Information for the Purpose under this Agreement or Discloser’s request for any\nreason, Recipient will (a) immediately cease all use of Confidential Information and (b) promptly, return to Discloser or, if instructed by Discloser.\ndestroy all Confidential Information, including any copies, extracts, summaries, or derivative works containing Confidential Information, and certify\nin writing to Discloser the completion of such return and/or destruction, provided, however, that Recipient may retain one copy in its legal archives\nsolely for the purpose of monitoring Recipient’s surviving obligations under this Agreement.\n6. Discloser retains all right, title and interest in and to Confidential Information. This Agreement does not and shall not be construed to give\nRecipient any right or license by implication or otherwise to any Confidential Information or under any intellectual property or other rights owned by\nor licensed to Discloser. Neither party has any the obligation to continue discussions or negotiations or to enter into any transaction with the other\nparty, and either party may terminate discussions or negotiations at any time.\n7. Each party’s obligations under this Agreement as a Recipient shall expire five (5) years from the Effective Date.\n8. Recipient acknowledges that any actual or threatened breach of this Agreement may cause Discloser immediate and irreparable harm that cannot\nbe adequately compensated by monetary damages and it therefore agrees that Discloser shall not be required to demonstrate irreparable harm in\norder to seek or obtain injunctive relief for actual or threatened breach of this Agreement. In addition to any injunctive relief, Discloser may seek any\nother remedies available to it at law or equity.\n9. Any purported assignment or delegation by a party of this Agreement in whole or in part without the prior written consent of the other party shall\nbe void. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\n10. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California, regardless of any choice of law\nprinciples.\nThis Agreement is executed as of the Effective Date by the parties’ duly authorized representatives.\nMYOGEN, INC.\nGILEAD SCIENCES, INC.\nBy: /s/ Andrew D. Dickinson\nBy: /s/ John F. Milligan, Ph.D .\nName: Andrew D. Dickinson\nName: John F. Milligan, Ph.D.\nTitle: Vice President, General Counsel & Corporate Secretary\nTitle: EVP and CFO\n-2-
fbf608b62ef498171b70fb7b36be61a0.pdf	effective_date jurisdiction party term	EX-10.3 6 dex103.htm NON COMPETITION, NON SOLICITATION AND NON DISCLOSURE\nExhibit 10.3\nNON-COMPETITION, NON-SOLICITATION, AND\nNON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into by and\namong First Community Bank Corporation of America, First Community Bank of America (collectively, “Employer”) and Clifton E. Tufts\n(“Employee”).\nWHEREAS, Employee serves as Employer’s Executive Vice President and in such capacity has: (i) access to Employer’s trade secrets and\nother valuable confidential business information; and (ii) substantial relationships with Employer’s existing and prospective customers and clients.\nNOW, THEREFORE, in consideration of Employer’s continued employment of Employee, and the grant of stock options and the severance\npayment described below, Employee hereby agrees to certain anti-competitive covenants contained herein.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for the period in which Employee remains employed by Employer and certain provisions will continue\nto remain in effect after Employee’s termination, as otherwise provided for in this Agreement. This Agreement may be terminated by Employer for\n“just cause,” which is defined to mean termination of Employee’s employment by Employer for Employee’s personal dishonesty (directly or\nindirectly) resulting in gain to, or personal enrichment of, Employee at the expense of Employer, insubordination, misconduct or conduct\nunbecoming a senior officer of a financial institution which could have a material negative reflection upon the Employer, breach of fiduciary duty,\nfailure to materially perform the duties required of his senior officer position with Employer, violation of a significant law, rule or regulation (other\nthan minor traffic violations or similar offenses), violation of a final cease-and-desist order, or personal default on indebtedness which is not\ncorrected within 30 days from the date of default.\nSECTION 2\nSEVERANCE PAYMENT\nIn the event Employer terminates Employee’s employment for any reason (other than “just cause” or illness or incapacity wherein Employee is\ncovered by disability insurance provided by Employer to all senior officers) Employer shall pay to Employee a severance payment of one year’s base\nsalary within five business days of such termination.\nSECTION 3\nSTOCK OPTIONS\nIn recognition of Employee’s contribution to Employer and Employee’s execution of this Agreement, Employer shall grant Employee stock\noptions to purchase 12,500 shares of common stock of First Community Bank Corporation of America. The per share price shall be the per share\nclosing price on the grant date (the date this agreement is executed by Employee, The stock options granted pursuant to this Agreement are non-\nqualified options, which shall vest immediately upon the date of grant and shall have a six-year term within which they may be exercised.\nSECTION 4\nAGREEMENT NOT TO COMPETE\nEmployee agrees that during the term of this Agreement and for a period of one year following Employee’s termination for any reason,\nEmployee shall not become employed, directly or indirectly, whether as an employee, independent contractor, consultant, or otherwise, with any\nfederally-insured financial institution, financial holding company, bank holding company, or other financial services provider, in which the\nemployment position is associated with lockbox activities or lockbox servicing, and which is located within 20 miles of any lockbox customer of\nEmployer within the State of Florida at the time of Employee’s termination of employment with Employer.\nSECTION 5\nAGREEMENT NOT TO SOLICIT\nEmployee further agrees that during the term of this Agreement and for a period of one year following Employee’s termination for any reason,\nEmployee shall not, directly or indirectly, solicit the business of any then current lockbox customer (both borrower and depositor) of Employer,\nregardless of whether or not Employee was responsible for generating such customer’s business for Employer. In addition, Employee agrees that\nduring the term of this Agreement and this provision, Employee shall not directly or indirectly solicit the employment of any then current employee\nof Employer.\nSECTION 6\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Employee shall use his best efforts and utmost diligence to guard and protect all of the\nEmployer’s trade secrets (as defined in Section 688.002[4], Florida Statutes), and any other confidential business information. Employee shall not,\neither during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any manner, to any person or entity,\nthe identity of Employer’s customers, methods of operation, marketing or promotional methods, processes, techniques, systems, formulas, programs,\ntrade secrets, or other confidential information relating to Employer’s business. Upon termination of Employee’s employment, for any reason,\nEmployee shall immediately return and deliver to Employer, all records and papers and all materials which bear trade secrets or other confidential\nbusiness information.\nSECTION 7\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF EMPLOYEE\nEmployee hereby agrees that the duration of the anti-competitive covenants set forth in Sections 4, 5, and 6 of this Agreement are reasonable,\nand that their geographic scope is not unduly restrictive. Furthermore, Employee acknowledges that Employer has a legitimate business interest in\nenforcing the anti-competitive covenants contained in Sections 4, 5, and 6 of this Agreement, because of Employee’s access to valuable and\nconfidential information about Employer, as well as confidential information about Employer’s existing and prospective customers.\n-2-\nSECTION 8\nENFORCEMENT\nEmployer and Employee acknowledge and agree that money damages cannot fully compensate Employer in the event of Employee’s violation\nof the provisions of Sections 4, 5, or 6 of this Agreement, Thus, in the event of a breach of any of the provisions of Sections 4, 5, or 6 of this\nAgreement, Employee agrees that Employer, upon application to a court of competent jurisdiction, shall be entitled to an injunction restraining\nEmployee from any further breach of the terms or provisions of Sections 4, 5, or 6. Employee’s sole remedy, in the event of the wrongful entry of\nsuch injunction, shall be the dissolution of such injunction. Employee hereby waives any and all claims for damages by reason of the wrongful\nissuance of any such injunction.\nSECTION 9\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or condition of this Agreement\nshall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written\ninstrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated\ntherein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 10\nATTORNEYS’ FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the recovery of reasonable\nattorneys’ fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 11\nSEVERABILITY AND REFORMATION\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement, which shall remain in foil force and effect. In the event a court of competent jurisdiction shall rule that any of the\nprovisions of Section 4, 5, or 6 is unenforceable due to their length, geographic area, or scope, Employer and Employee hereby request that such\ncourt reform the terms of those Sections so that they may be enforceable.\n-3-\nSECTION 12\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning or the interpretation of\nany of the provisions of this Agreement.\nSECTION 13\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of Florida, and venue for any action\nhereunder shall lie in Pinellas County, Florida.\nSECTION 14\nASSIGNMENT\nThis Agreement shall inure to the benefit of and be binding upon the Employee, and to the extent applicable, his heirs, assigns, executors, and\npersonal representatives, and to the Employer. This Agreement, however, may not be assigned by Employer to its successors, including, without\nlimitation, any person or entity that may acquire all, or substantially all, of Employer’s assets and business, or with or into which Employer may be\nconsolidated or merged (other than through an intra-company reorganization or merger), without the written consent of Employee, which may be\nwithheld for any reason. This provision shall apply in the event of any subsequent merger, consolidation, or transfer.\nSECTION 15\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Employer and Employee.\nNothing contained in this Agreement shall be deemed to give Employee the right to be retained in the service of Employer, or to interfere with the\nright of Employer to discharge Employee at any time.\n-4-\nIN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement this 28 day of March, 2005.\nEMPLOYEE\n/s/ Clifton E. Tusfs\nClifton E. Tufts, Executive Vice President\nFIRST COMMUNITY BANK CORPORATION OF\nAMERICA\nBy: /s/ Kenneth P. Cherven\nKenneth P. Cherven\nPresident and Chief Executive Officer\nFIRST COMMUNITY BANK AMERICA\nBy: /s/ Kenneth P. Cherven\nKenneth P. Cherven\nPresident and Chief Executive Officer\n-5-\nth	EX-10.3 6 dex103.htm NON COMPETITION, NON SOLICITATION AND NON DISCLOSURE\nExhibit 10.3\nNON-COMPETITION, NON-SOLICITATION, AND\nNON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into by and\namong First Community Bank Corporation of America, First Community Bank of America (collectively, “Employer”) and Clifton E. Tufts\n(“Employee”).\nWHEREAS, Employee serves as Employer’s Executive Vice President and in such capacity has: (i) access to Employer’s trade secrets and\nother valuable confidential business information; and (ii) substantial relationships with Employer’s existing and prospective customers and clients.\nNOW, THEREFORE, in consideration of Employer’s continued employment of Employee, and the grant of stock options and the severance\npayment described below, Employee hereby agrees to certain anti-competitive covenants contained herein.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for the period in which Employee remains employed by Employer and certain provisions will continue\nto remain in effect after Employee’s termination, as otherwise provided for in this Agreement. This Agreement may be terminated by Employer for\n“just cause,” which is defined to mean termination of Employee’s employment by Employer for Employee’s personal dishonesty (directly or\nindirectly) resulting in gain to, or personal enrichment of, Employee at the expense of Employer, insubordination, misconduct or conduct\nunbecoming a senior officer of a financial institution which could have a material negative reflection upon the Employer, breach of fiduciary duty,\nfailure to materially perform the duties required of his senior officer position with Employer, violation of a significant law, rule or regulation (other\nthan minor traffic violations or similar offenses), violation of a final cease-and-desist order, or personal default on indebtedness which is not\ncorrected within 30 days from the date of default.\nSECTION 2\nSEVERANCE PAYMENT\nIn the event Employer terminates Employee’s employment for any reason (other than “just cause” or illness or incapacity wherein Employee is\ncovered by disability insurance provided by Employer to all senior officers) Employer shall pay to Employee a severance payment of one year’s base\nsalary within five business days of such termination.\nSECTION 3\nSTOCK OPTIONS\nIn recognition of Employee’s contribution to Employer and Employee’s execution of this Agreement, Employer shall grant Employee stock\noptions to purchase 12,500 shares of common stock of First Community Bank Corporation of America. The per share price shall be the per share\nclosing price on the grant date (the date this agreement is executed by Employee, The stock options granted pursuant to this Agreement are non-\nqualified options, which shall vest immediately upon the date of grant and shall have a six-year term within which they may be exercised.\nSECTION 4\nAGREEMENT NOT TO COMPETE\nEmployee agrees that during the term of this Agreement and for a period of one year following Employee’s termination for any reason,\nEmployee shall not become employed, directly or indirectly, whether as an employee, independent contractor, consultant, or otherwise, with any\nfederally-insured financial institution, financial holding company, bank holding company, or other financial services provider, in which the\nemployment position is associated with lockbox activities or lockbox servicing, and which is located within 20 miles of any lockbox customer of\nEmployer within the State of Florida at the time of Employee’s termination of employment with Employer.\nSECTION 5\nAGREEMENT NOT TO SOLICIT\nEmployee further agrees that during the term of this Agreement and for a period of one year following Employee’s termination for any reason,\nEmployee shall not, directly or indirectly, solicit the business of any then current lockbox customer (both borrower and depositor) of Employer,\nregardless of whether or not Employee was responsible for generating such customer’s business for Employer. In addition, Employee agrees that\nduring the term of this Agreement and this provision, Employee shall not directly or indirectly solicit the employment of any then current employee\nof Employer.\nSECTION 6\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Employee shall use his best efforts and utmost diligence to guard and protect all of the\nEmployer’s trade secrets (as defined in Section 688.002[4], Florida Statutes), and any other confidential business information. Employee shall not,\neither during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any manner, to any person or entity,\nthe identity of Employer’s customers, methods of operation, marketing or promotional methods, processes, techniques, systems, formulas, programs,\ntrade secrets, or other confidential information relating to Employer’s business. Upon termination of Employee’s employment, for any reason,\nEmployee shall immediately return and deliver to Employer, all records and papers and all materials which bear trade secrets or other confidential\nbusiness information.\nSECTION 7\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF EMPLOYEE\nEmployee hereby agrees that the duration of the anti-competitive covenants set forth in Sections 4, 5, and 6 of this Agreement are reasonable,\nand that their geographic scope is not unduly restrictive. Furthermore, Employee acknowledges that Employer has a legitimate business interest in\nenforcing the anti-competitive covenants contained in Sections 4, 5, and 6 of this Agreement, because of Employee’s access to valuable and\nconfidential information about Employer, as well as confidential information about Employer’s existing and prospective customers.\n_2-\nSECTION 8\nENFORCEMENT\nEmployer and Employee acknowledge and agree that money damages cannot fully compensate Employer in the event of Employee’s violation\nof the provisions of Sections 4, 5, or 6 of this Agreement, Thus, in the event of a breach of any of the provisions of Sections 4, 5, or 6 of this\nAgreement, Employee agrees that Employer, upon application to a court of competent jurisdiction, shall be entitled to an injunction restraining\nEmployee from any further breach of the terms or provisions of Sections 4, 5, or 6. Employee’s sole remedy, in the event of the wrongful entry of\nsuch injunction, shall be the dissolution of such injunction. Employee hereby waives any and all claims for damages by reason of the wrongful\nissuance of any such injunction.\nSECTION 9\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or condition of this Agreement\nshall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written\ninstrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated\ntherein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 10\nATTORNEYS’ FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the recovery of reasonable\nattorneys’ fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 11\nSEVERABILITY AND REFORMATION\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement, which shall remain in foil force and effect. In the event a court of competent jurisdiction shall rule that any of the\nprovisions of Section 4, 5, or 6 is unenforceable due to their length, geographic area, or scope, Employer and Employee hereby request that such\ncourt reform the terms of those Sections so that they may be enforceable.\n_3-\nSECTION 12\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning or the interpretation of\nany of the provisions of this Agreement.\nSECTION 13\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of Florida, and venue for any action\nhereunder shall lie in Pinellas County, Florida.\nSECTION 14\nASSIGNMENT\nThis Agreement shall inure to the benefit of and be binding upon the Employee, and to the extent applicable, his heirs, assigns, executors, and\npersonal representatives, and to the Employer. This Agreement, however, may not be assigned by Employer to its successors, including, without\nlimitation, any person or entity that may acquire all, or substantially all, of Employer’s assets and business, or with or into which Employer may be\nconsolidated or merged (other than through an intra-company reorganization or merger), without the written consent of Employee, which may be\nwithheld for any reason. This provision shall apply in the event of any subsequent merger, consolidation, or transfer.\nSECTION 15\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Employer and Employee.\nNothing contained in this Agreement shall be deemed to give Employee the right to be retained in the service of Employer, or to interfere with the\nright of Employer to discharge Employee at any time.\n_4-\nIN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement this 28t day of March, 2005. EMPLOYEE\n/s/ Clifton E. Tusfs\nClifton E. Tufts, Executive Vice President FIRST COMMUNITY BANK CORPORATION OF\nAMERICA\nBy: /s/ Kenneth P. Cherven Kenneth P. Cherven\nPresident and Chief Executive Officer\nFIRST COMMUNITY BANK AMERICA\nBy: /s/ Kenneth P. Cherven Kenneth P. Cherven\nPresident and Chief Executive Officer	EX-10.3 6 dex103.htm NON COMPETITION, NON SOLICITATION AND NON DISCLOSURE\nExhibit 10.3\nNON-COMPETITION, NON-SOLICITATION, AND\nNON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT ("Agreement") is entered into by and\namong First Community Bank Corporation of America, First Community Bank of America (collectively, "Employer") and Clifton E. Tufts\n("Employee").\nWHEREAS, Employee serves as Employer's Executive Vice President and in such capacity has: (i) access to Employer's trade secrets and\nother valuable confidential business information; and (ii) substantial relationships with Employer's existing and prospective customers and clients.\nNOW, THEREFORE, in consideration of Employer's continued employment of Employee, and the grant of stock options and the severance\npayment described below, Employee hereby agrees to certain anti-competitive covenants contained herein.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for the period in which Employee remains employed by Employer and certain provisions will continue\nto\nremain in effect after Employee's termination, as otherwise provided for in this Agreement. This Agreement may be terminated by Employer for\n"just cause," which is defined to mean termination of Employee's employment by Employer for Employee's personal dishonesty (directly or\nindirectly) resulting in gain to, or personal enrichment of, Employee at the expense of Employer, insubordination, misconduct or conduct\nunbecoming a senior officer of a financial institution which could have a material negative reflection upon the Employer, breach of fiduciary duty,\nfailure to materially perform the duties required of his senior officer position with Employer, violation of a significant law, rule or regulation (other\nthan minor traffic violations or similar offenses), violation of a final cease-and-desist order, or personal default on indebtedness which is not\ncorrected within 30 days from the date of default.\nSECTION 2\nSEVERANCE PAYMENT\nIn the event Employer terminates Employee's employment for any reason (other than "just cause" or illness or incapacity wherein Employee is\ncovered by disability insurance provided by Employer to all senior officers) Employer shall pay to Employee a severance payment of one year's base\nsalary within five business days of such termination.\nSECTION 3\nSTOCK OPTIONS\nIn recognition of Employee's contribution to Employer and Employee's execution of this Agreement, Employer shall grant Employee stock\noptions to purchase 12,500 shares of common stock of First Community Bank Corporation of America. The per share price shall be the per share\nclosing price on the grant date (the date this agreement is executed by Employee, The stock options granted pursuant to this Agreement are non-\nqualified options, which shall vest immediately upon the date of grant and shall have a six-year term within which they may be exercised.\nSECTION 4\nAGREEMENT NOT TO COMPETE\nEmployee agrees that during the term of this Agreement and for a period of one year following Employee's termination for any reason,\nEmployee shall not become employed, directly or indirectly, whether as an employee, independent contractor, consultant, or otherwise, with\nany\nfederally-insured financial institution, financial holding company, bank holding company, or other financial services provider, in which the\nemployment position is associated with lockbox activities or lockbox servicing, and which is located within 20 miles of any lockbox customer of\nEmployer within the State of Florida at the time of Employee's termination of employment with Employer.\nSECTION 5\nAGREEMENT NOT TO SOLICIT\nEmployee further agrees that during the term of this Agreement and for a period of one year following Employee's termination for any reason,\nEmployee shall not, directly or indirectly, solicit the business of any then current lockbox customer (both borrower and depositor) of Employer,\nregardless of whether or not Employee was responsible for generating such customer's business for Employer. In addition, Employee agrees that\nduring the term of this Agreement and this provision, Employee shall not directly or indirectly solicit the employment of any then current employee\nof Employer.\nSECTION 6\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Employee shall use his best efforts and utmost diligence to guard and protect all of the\nEmployer's trade secrets (as defined in Section 688.002[4], Florida Statutes), and any other confidential business information. Employee shall not,\neither during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any manner, to any person or entity,\nthe identity of Employer's customers, methods of operation, marketing or promotional methods, processes, techniques, systems, formulas, programs,\ntrade secrets, or other confidential information relating to Employer's business. Upon termination of Employee's employment, for any reason,\nEmployee shall immediately return and deliver to Employer, all records and papers and all materials which bear trade secrets or other confidential\nbusiness information.\nSECTION 7\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF EMPLOYEE\nEmployee hereby agrees that the duration of the anti-competitive covenants set forth in Sections 4, 5, and 6 of this Agreement are reasonable,\nand that their geographic scope is not unduly restrictive. Furthermore, Employee acknowledges that Employer has a legitimate business interest in\nenforcing the anti-competitive covenants contained in Sections 4, 5, and 6 of this Agreement, because of Employee's access to valuable and\nconfidential information about Employer, as well as confidential information about Employer's existing and prospective customers.\n2\nSECTION 8\nENFORCEMENT\nEmployer and Employee acknowledge and agree that money damages cannot fully compensate Employer in the event of Employee's violation\nof\nthe provisions of Sections 4, 5, or 6 of this Agreement, Thus, in the event of a breach of any of the provisions of Sections 4, 5, or 6 of this\nAgreement, Employee agrees that Employer, upon application to a court of competent jurisdiction, shall be entitled to an injunction restraining\nEmployee from any further breach of the terms or provisions of Sections 4, 5, or 6. Employee's sole remedy, in the event of the wrongful entry of\nsuch injunction, shall be the dissolution of such injunction. Employee hereby waives any and all claims for damages by reason of the wrongful\nissuance of any such injunction.\nSECTION 9\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or condition of this Agreement\nshall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written\ninstrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated\ntherein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 10\nATTORNEYS' FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the recovery of reasonable\nattorneys' fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 11\nSEVERABILITY AND REFORMATION\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement, which shall remain in foil force and effect. In the event a court of competent jurisdiction shall rule that any of the\nprovisions of Section 4, 5, or 6 is unenforceable due to their length, geographic area, or scope, Employer and Employee hereby request that such\ncourt reform the terms of those Sections so that they may be enforceable.\n3\nSECTION 12\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning or the interpretation\nof\nany of the provisions of this Agreement.\nSECTION 13\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of Florida, and venue for any action\nhereunder shall lie in Pinellas County, Florida.\nSECTION 14\nASSIGNMENT\nThis Agreement shall inure to the benefit of and be binding upon the Employee, and to the extent applicable, his heirs, assigns, executors, and\npersonal representatives, and to the Employer. This Agreement, however, may not be assigned by Employer to its successors, including, without\nlimitation, any person or entity that may acquire all, or substantially all, of Employer's assets and business, or with or into which Employer may\nbe\nconsolidated or merged (other than through an intra-company reorganization or merger), without the written consent of Employee, which may be\nwithheld for any reason. This provision shall apply in the event of any subsequent merger, consolidation, or transfer.\nSECTION 15\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Employer and Employee.\nNothing contained in this Agreement shall be deemed to give Employee the right to be retained in the service of Employer, or to interfere with the\nright of Employer to discharge Employee at any time.\n4\nIN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement this 28th day of March, 2005.\nEMPLOYEE\n/s/ Clifton E. Tusfs\nClifton E. Tufts, Executive Vice President\nFIRST COMMUNITY BANK CORPORATION OF\nAMERICA\nBy: /s/ Kenneth P. Cherven\nKenneth P. Cherven\nPresident and Chief Executive Officer\nFIRST COMMUNITY BANK AMERICA\nBy: /s/ Kenneth P. Cherven\nKenneth P. Cherven\nPresident and Chief Executive Officer\n5 -	EX-10.3 6 dex103.htm NON COMPETITION, NON SOLICITATION AND NON DISCLOSURE\nExhibit 10.3\nNON-COMPETITION, NON-SOLICITATION, AND\nNON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into by and\namong First Community Bank Corporation of America, First Community Bank of America (collectively, “Employer”) and Clifton E. Tufts\n(“Employee”).\nWHEREAS, Employee serves as Employer’s Executive Vice President and in such capacity has: (i) access to Employer’s trade secrets and\nother valuable confidential business information; and (ii) substantial relationships with Employer’s existing and prospective customers and clients.\nNOW, THEREFORE, in consideration of Employer’s continued employment of Employee, and the grant of stock options and the severance\npayment described below, Employee hereby agrees to certain anti-competitive covenants contained herein.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for the period in which Employee remains employed by Employer and certain provisions will continue\nto remain in effect after Employee’s termination, as otherwise provided for in this Agreement. This Agreement may be terminated by Employer for\n“just cause,” which is defined to mean termination of Employee’s employment by Employer for Employee’s personal dishonesty (directly or\nindirectly) resulting in gain to, or personal enrichment of, Employee at the expense of Employer, insubordination, misconduct or conduct\nunbecoming a senior officer of a financial institution which could have a material negative reflection upon the Employer, breach of fiduciary duty,\nfailure to materially perform the duties required of his senior officer position with Employer, violation of a significant law, rule or regulation (other\nthan minor traffic violations or similar offenses), violation of a final cease-and-desist order, or personal default on indebtedness which is not\ncorrected within 30 days from the date of default.\nSECTION 2\nSEVERANCE PAYMENT\nIn the event Employer terminates Employee’s employment for any reason (other than “just cause” or illness or incapacity wherein Employee is\ncovered by disability insurance provided by Employer to all senior officers) Employer shall pay to Employee a severance payment of one year’s base\nsalary within five business days of such termination.\nSECTION 3\nSTOCK OPTIONS\nIn recognition of Employee’s contribution to Employer and Employee’s execution of this Agreement, Employer shall grant Employee stock\noptions to purchase 12,500 shares of common stock of First Community Bank Corporation of America. The per share price shall be the per share\nclosing price on the grant date (the date this agreement is executed by Employee, The stock options granted pursuant to this Agreement are non-\nqualified options, which shall vest immediately upon the date of grant and shall have a six-year term within which they may be exercised.\nSECTION 4\nAGREEMENT NOT TO COMPETE\nEmployee agrees that during the term of this Agreement and for a period of one year following Employee’s termination for any reason,\nEmployee shall not become employed, directly or indirectly, whether as an employee, independent contractor, consultant, or otherwise, with any\nfederally-insured financial institution, financial holding company, bank holding company, or other financial services provider, in which the\nemployment position is associated with lockbox activities or lockbox servicing, and which is located within 20 miles of any lockbox customer of\nEmployer within the State of Florida at the time of Employee’s termination of employment with Employer.\nSECTION 5\nAGREEMENT NOT TO SOLICIT\nEmployee further agrees that during the term of this Agreement and for a period of one year following Employee’s termination for any reason,\nEmployee shall not, directly or indirectly, solicit the business of any then current lockbox customer (both borrower and depositor) of Employer,\nregardless of whether or not Employee was responsible for generating such customer’s business for Employer. In addition, Employee agrees that\nduring the term of this Agreement and this provision, Employee shall not directly or indirectly solicit the employment of any then current employee\nof Employer.\nSECTION 6\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Employee shall use his best efforts and utmost diligence to guard and protect all of the\nEmployer’s trade secrets (as defined in Section 688.002[4], Florida Statutes), and any other confidential business information. Employee shall not,\neither during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any manner, to any person or entity,\nthe identity of Employer’s customers, methods of operation, marketing or promotional methods, processes, techniques, systems, formulas, programs,\ntrade secrets, or other confidential information relating to Employer’s business. Upon termination of Employee’s employment, for any reason,\nEmployee shall immediately return and deliver to Employer, all records and papers and all materials which bear trade secrets or other confidential\nbusiness information.\nSECTION 7\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF EMPLOYEE\nEmployee hereby agrees that the duration of the anti-competitive covenants set forth in Sections 4, 5, and 6 of this Agreement are reasonable,\nand that their geographic scope is not unduly restrictive. Furthermore, Employee acknowledges that Employer has a legitimate business interest in\nenforcing the anti-competitive covenants contained in Sections 4, 5, and 6 of this Agreement, because of Employee’s access to valuable and\nconfidential information about Employer, as well as confidential information about Employer’s existing and prospective customers.\n-2-\nSECTION 8\nENFORCEMENT\nEmployer and Employee acknowledge and agree that money damages cannot fully compensate Employer in the event of Employee’s violation\nof the provisions of Sections 4, 5, or 6 of this Agreement, Thus, in the event of a breach of any of the provisions of Sections 4, 5, or 6 of this\nAgreement, Employee agrees that Employer, upon application to a court of competent jurisdiction, shall be entitled to an injunction restraining\nEmployee from any further breach of the terms or provisions of Sections 4, 5, or 6. Employee’s sole remedy, in the event of the wrongful entry of\nsuch injunction, shall be the dissolution of such injunction. Employee hereby waives any and all claims for damages by reason of the wrongful\nissuance of any such injunction.\nSECTION 9\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or condition of this Agreement\nshall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written\ninstrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated\ntherein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 10\nATTORNEYS’ FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the recovery of reasonable\nattorneys’ fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 11\nSEVERABILITY AND REFORMATION\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement, which shall remain in foil force and effect. In the event a court of competent jurisdiction shall rule that any of the\nprovisions of Section 4, 5, or 6 is unenforceable due to their length, geographic area, or scope, Employer and Employee hereby request that such\ncourt reform the terms of those Sections so that they may be enforceable.\n-3-\nSECTION 12\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning or the interpretation of\nany of the provisions of this Agreement.\nSECTION 13\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of Florida, and venue for any action\nhereunder shall lie in Pinellas County, Florida.\nSECTION 14\nASSIGNMENT\nThis Agreement shall inure to the benefit of and be binding upon the Employee, and to the extent applicable, his heirs, assigns, executors, and\npersonal representatives, and to the Employer. This Agreement, however, may not be assigned by Employer to its successors, including, without\nlimitation, any person or entity that may acquire all, or substantially all, of Employer’s assets and business, or with or into which Employer may be\nconsolidated or merged (other than through an intra-company reorganization or merger), without the written consent of Employee, which may be\nwithheld for any reason. This provision shall apply in the event of any subsequent merger, consolidation, or transfer.\nSECTION 15\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Employer and Employee.\nNothing contained in this Agreement shall be deemed to give Employee the right to be retained in the service of Employer, or to interfere with the\nright of Employer to discharge Employee at any time.\n-4-\nIN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement this 28 day of March, 2005.\nEMPLOYEE\n/s/ Clifton E. Tusfs\nClifton E. Tufts, Executive Vice President\nFIRST COMMUNITY BANK CORPORATION OF\nAMERICA\nBy: /s/ Kenneth P. Cherven\nKenneth P. Cherven\nPresident and Chief Executive Officer\nFIRST COMMUNITY BANK AMERICA\nBy: /s/ Kenneth P. Cherven\nKenneth P. Cherven\nPresident and Chief Executive Officer\n-5-\nth
fc2ce0e2abdcf676a1d4ab95191a9d17.pdf	effective_date jurisdiction party term	EX-2.4 5 dex24.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - STEPHEN MILSTEIN\nExhibit 2.4\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Stephen Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business”), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller ’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nStephen Milstein\n1005 Plowshare Road\nYardley, Pennsylvania 19067\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\n4\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service to\nbecome effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n*****\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy: /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Stephen Milstein\nStephen Milstein	EX-2.4 5 dex24.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - STEPHEN MILSTEIN\nExhibit 2.4\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Stephen Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business™), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n \n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n \n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n \n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nStephen Milstein\n1005 Plowshare Road\nYardley, Pennsylvania 19067\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28™ Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service to\nbecome effective 10 days after such mailing.\n \n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n \n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(1) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\nk ok ok ok K\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy:  /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Stephen Milstein\nStephen Milstein	EX-2.4 5 dex24.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT STEPHEN MILSTEIN\nExhibit 2.4\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n"Company."), and Stephen Milstein ("Seller"). For purposes of this Agreement, unless the context requires otherwise, the term "Company." shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n("BlueBlazer") and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the "Merger Sub") and BlueBlazer, dated as of January 18, 2006 (the "Merger Agreement") has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby\nthe Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach\nof\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the "Non-Compete Period"), neither Seller nor any of\nSeller's Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the "Territory.")\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise\nfinance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a "Competing Business"), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, "Affiliate" of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where "control" means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller's Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor\nany\nof Seller's Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller's Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute "interference" under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company's prior written consent (which consent shall not unreasonably be withheld), Seller and Seller's Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company's withholding of consent with respect to Seller's or Seller's Affiliate's hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller's\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller's Affiliates wishes to hire any such person or persons, it shall SO notify the Company (the "Notice'),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company's receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany,\nor in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute "interference" under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nStephen Milstein\n1005 Plowshare Road\nYardley, Pennsylvania 19067\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller's execution, delivery and performance of\nthis\nAgreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability.. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\n4\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof\nthe invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application\nof\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing\nof\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service\nto\nbecome effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word "including" shall mean including without limitation.\n(j) No Third-Party. Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller's breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(1) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n* * * *\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy:\n/s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Stephen Milstein\nStephen Milstein	EX-2.4 5 dex24.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - STEPHEN MILSTEIN\nExhibit 2.4\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Stephen Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business”), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller ’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nStephen Milstein\n1005 Plowshare Road\nYardley, Pennsylvania 19067\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\n4\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service to\nbecome effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n*****\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy: /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Stephen Milstein\nStephen Milstein
fc34f2d7a61e531870d05910c5c3599b.pdf	effective_date jurisdiction party term	EX-10.37 15 d255425dex1037.htm EMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT,\nMARK LEUCHTENBERGER\nExhibit 10.37\nExecution Copy\nRIB-X PHARMACEUTICALS, INC.\nEMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nAs a condition of my employment with Rib-X Pharmaceuticals, Inc. its subsidiaries, affiliates, successors or assigns (together the “Company”),\nand in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the Company, I\nagree to the following:\n1. Company’s Business. I acknowledge that the Company is engaged in the business of discovering, developing and commercializing\nantibiotics (the “Business”).\n2. Confidential Information. I acknowledge that for the purposes of this Agreement, the term “Confidential Information” shall mean all\ninformation (financial, technical or otherwise) in whatever form (written, oral or otherwise) that relates to the Company’s Business and which is\ndisclosed to me or acquired by me in the course of my employment in any way concerning the trade secrets, projects, activities, business, clients,\ntrade practices, know-how or affairs of the Company, its parents, subsidiaries and affiliates, including, without limitation, all information concerning\nresearch, development tools, applications, products, business formulas, discoveries, ideas, concepts, know-how, techniques, diagrams, flow charts,\ndata, algorithms, source and object code, methods of operations, solutions, tools, marketing and development plans, customer or investor names,\ntransactions, acquisitions, all marketing plans, strategies and forecasts and other technical or business information, regarding existing and/or\ncontemplated products, processes, techniques or know-how, or any data or information developed by me pursuant to the performance of my services\nhereunder. I further understand that Confidential Information does not include any of the foregoing items which have become publicly known and\nmade generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the Confidential Information\ninvolved.\n3. Use of Confidential Information.\n(a) During the course of my employment, I acknowledge that I will have access to Confidential Information. Therefore, during the term\nof my employment, and for all times thereafter, I will treat as confidential and, except as required in the performance of my employment duties and\nresponsibilities, will not disclose, publish, use or otherwise make available to the public or to any individual, firm or corporation any Confidential\nInformation.\n(b) I shall notify the Company immediately upon discovery of any unauthorized disclosure of Confidential Information, use of\nConfidential Information other than in carrying out my duties with the Company, or any other breach of this Agreement by me, and will cooperate\nwith the Company in every reasonable way to help the Company regain possession of the Confidential Information and prevent its further\nunauthorized use.\n4. Return of Confidential Information. I agree that all Confidential Information, together with all notes and records relating thereto, and all\ncopies, duplicates, reproductions, facsimiles or excerpts thereof in my possession, are the exclusive property of the Company. I will return promptly\nall such materials to the Company upon the termination of my employment or upon the Company’s demand. In addition, I will return promptly to the\nCompany upon the\nconclusion of my employment all reports, files, memoranda, records and software, credit cards, cardkey passes, door and file keys, computer access\ncodes or disks, instructional material, and other physical or personal property which I receive or prepare in connection with my employment with the\nCompany.\n5. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the premises of\nthe Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity.\n6. Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or\nproprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my duties for the Company consistent with the Company’s agreement with such third\nparty.\n7. Proprietary Rights.\n(a) I agree to assign, and hereby assign, to the Company, without additional compensation, all right, title and interest in all creations,\ninventions, ideas, designs, copyrightable materials, trademarks, and other technology and rights (and any related improvements or modifications),\nwhether or not subject to patent or copyright protection (collectively, “Creations”), relating to any activities of the Company that are conceived or\ndeveloped by me in the course of my employment, whether conceived alone or with others and whether or not conceived or developed during regular\nbusiness hours, and if based on Confidential Information, after the termination of my employment for any reason. Such Creations shall be the sole\nproperty of the Company and, to the maximum extent permitted by applicable law, shall be deemed “works made for hire” as the term is used in the\nUnited States Copyright Act.\n(b) I agree to promptly inform the Company of any such Creations. I will also allow the Company to inspect any Creations I conceive or\ndevelop within (i) one (1) year after the termination of my employment for any reason, or (ii) during the Salary Continuation Period (as that term is\ndefined in the Employment Agreement), whichever period is greater, to determine if they are based on Confidential Information. I will (whether\nduring my employment or after the termination of my employment) execute such written instruments and do other such acts as may be necessary in\nthe opinion of the Company or its counsel to secure the Company’s rights in the Creations, including obtaining a patent, registering a copyright, or\notherwise (and I hereby irrevocably appoint the Company and any of its officers as my attorney in fact to undertake such acts in my name). I agree\nthat my obligation to execute written instruments and otherwise assist the Company in securing its rights in the Creations will continue after the\ntermination of my employment for any reason.\n2\n(c) To the extent, if any, that I retain any right, title or interest with respect to any Creations that are delivered to the Company or relate to\nmy employment with the Company, I hereby grant to the Company an irrevocable, paid-up, transferable, sub-licensable, worldwide right and license\n(i) to modify all or any portion of such Creations, including, without limitation, the making of additions to or deletions from such Creations,\nregardless of the medium (now or hereafter known) into which such Creations may be modified and regardless of the effect of such modifications on\nthe integrity of such Creations, and (ii) to identify me, or not to identify me, as one or more authors of or contributors to such Creations or any\nportion thereof, whether or not such Creations or any portion thereof have been modified. I further waive any “moral” rights, or other rights with\nrespect to attribution of authorship or integrity of such Creations that I may have under any applicable law, whether under copyright, trademark,\nunfair competition, defamation, right of privacy, contract, tort or other legal theory.\n(d) I have attached to this Agreement as Exhibit A, a list describing all inventions, original works of authorship, developments,\nimprovements, and trade secrets which were made by me prior to my employment with the Company (collectively referred to as “Prior Inventions”),\nwhich belong to me, which relate to the Company’s proposed business, products or research and development, and which are not assigned to the\nCompany hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my employment with the\nCompany, I incorporate into a Company product, process or machine a Prior Invention owned by me or in which I have an interest, the Company is\nhereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\n8. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity competitive with the Business of the Company, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\n9. Non-Competition. During my employment and for a period of one (1) year following the date on which my employment with the Company\nterminates for any reason (the “Restricted Period”), I shall not, directly or indirectly, own, manage, operate, control or participate in the ownership,\nmanagement or control of, or be connected as an officer, employee, partner, director, or otherwise with, or have any financial interest in, or aid or\nassist anyone else in the conduct of, any entity or business (existing on the date that my employment with the Company terminates and/or during the\none-year period thereafter) that competes with the Business conducted by the Company or any of its subsidiaries or affiliates within any area in\nwhich the Company conducts its Business on the date that my employment with the Company terminates. Notwithstanding the foregoing, my\nownership of securities of a public company engaged in competition with the Company’s Business not in excess of two percent (2%) of any class of\nsuch securities shall not be considered a breach of the covenants set forth in this Section.\n10. Non-Solicitation. I agree that during the Restricted Period, I will not, directly or indirectly, take any of the following actions, and, to the\nextent that I own, manage, operate, control, am employed by or participate in the ownership, management, operation or control of, or am connected\nin any manner with, any business of the type and character engaged in and\n3\ncompetitive with the Business of the Company or any of its subsidiaries or affiliates during the period of my employment, I will use my best efforts\nto ensure that such business does not take any of the following actions:\n(a) persuade or attempt to persuade any customer of the Company to cease doing business with the Company or any of its subsidiaries or\naffiliates, or to reduce the amount of business it does with the Company or any of its subsidiaries or affiliates;\n(b) solicit for me or for any person or entity other than the Company, the business of any customer of the Company or any of its\nsubsidiaries or affiliates that was a customer of the Company within six months prior to the termination of my employment;\n(c) persuade or attempt to persuade any present employee of the Company or any of its subsidiaries or affiliates, or any individual who\nwas its employee or any of its subsidiaries or affiliates during the two (2) years prior to the termination of my employment, to leave the employ of\nthe Company or any of its subsidiaries or affiliates; or\n(d) knowingly hire or offer employment to any present senior (at the level of vice president or higher) employee of the Company or any\nof its subsidiaries or affiliates, or any individual who was its senior (at the level of vice president or higher), employee or any of its subsidiaries or\naffiliates during the two (2) years prior to the termination of my employment.\n11. Special Remedy. I recognize that the Confidential Information to be protected by this Agreement is special, unique and extraordinary in\ncharacter, and that in the event of any breach by me of any of the terms or conditions of this Agreement, the Company shall be entitled, if it so elects,\nto institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages from me for any such\nbreach or to enforce the specific performance of this Agreement by me. I further acknowledge that a breach of my obligations under this Agreement\ncould cause the Company irreparable harm for which no adequate remedy at law would be available, and that the Company in such circumstances\nwould be entitled to injunctive relief preventing or enjoining any breach of my obligations, without the need to post any bond. I specifically consent\nto the jurisdiction of the United States District Court for the District of Connecticut, or if that court is unable to exercise jurisdiction for any reason,\nto the Superior Court of Connecticut, the New Haven Judicial Branch, for this purpose and irrevocably waive any objection I now have or hereafter\nmay have as to the venue of any such action brought under this Section.\n12. Miscellaneous.\n(a) Covenants Reasonable. I expressly acknowledge and agree that the covenants set forth herein are reasonable in all respects, and\nnecessary in order to protect, maintain and preserve the value and goodwill of the Company, as well as the proprietary and other legitimate business\ninterests of the Company. I further acknowledge and agree that the covenants and agreements set forth herein constitute a significant part of the\nconsideration given by me to the Company in exchange for the payment of my salary and benefits by the Company, and are a material reason for\nsuch payment.\n4\n(b) Indemnification. I agree to indemnify and hold the Company harmless from and against any and all damages, losses or expenses,\nincluding attorneys’ fees, relating to any breach by me of my obligations under this Agreement.\n(c) At-Will Employment. I understand and acknowledge that this Agreement is not intended to, and shall not be construed as, creating a\ncontract of employment for any specific duration. Unless I have entered into a written employment contract signed by an officer of the Company\nproviding otherwise, my employment with the Company remains “at-will”, meaning that either I or the Company may, at any time, terminate my\nemployment with or without cause and with or without notice.\n(d) Validity. I agree that the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall otherwise remain in full force and effect. Moreover, if any one or more of the\nprovisions contained in this Agreement is held to be excessively broad as to duration, scope or activity, I agree that such provisions shall be\nconstrued by limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable law.\n(e) Waivers. The waiver by the Company or me of any right under this Agreement or of any failure to perform or any breach by the\nother shall not be deemed a waiver of any other right under this Agreement or of any other failure or any other breach by such party, whether of the\nsame or a similar nature or otherwise. No waiver shall be deemed to have occurred unless set forth in writing executed by or on behalf of the waiving\nparty. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to\nthe specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that\nspecifically waived.\n(f) Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Delaware without\nregard to its principles of conflicts of law.\n(g) Successors; Binding Agreement. This Agreement and the rights and obligations of the Company and me under this Agreement shall\ninure to our benefit and to the benefit of our respective heirs, personal representatives, successors and assigns. I specifically agree that the Company\nmay assign this Agreement to any successor.\n(h) Entire Agreement. This Agreement, and the Employment Agreement, set forth the entire agreement and understanding of the\nCompany and me with respect of its subject matter, and supersedes all prior agreements, promises, covenants, arrangements, communications,\nrepresentations or warranties, whether oral or written, by any officer, executive or representative of either party in respect of said subject matter.\n(i) Headings Descriptive. The headings of the Sections of this Agreement are inserted for convenience only and shall not in any way\naffect the meaning or construction of this Agreement.\n5\n(j) Capacity. I represent and warrant that I am not a party to any agreement that would prohibit me from entering into this Agreement or\nperforming fully my obligations under this Agreement.\nDate: March 19, 2010\n/s/ Mark Leuchetenberger\nSignature\nMark Leuchtenberger\n6	EX-10.37 15 d255425dex1037.htm EMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT,\nMARK LEUCHTENBERGER\nExhibit 10.37\nExecution Copy\nRIB-X PHARMACEUTICALS, INC.\nEMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nAs a condition of my employment with Rib-X Pharmaceuticals, Inc. its subsidiaries, affiliates, successors or assigns (together the “Company”),\nand in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the Company, I\nagree to the following:\n1. Company’s Business. I acknowledge that the Company is engaged in the business of discovering, developing and commercializing\nantibiotics (the “Business”).\n2. Confidential Information. I acknowledge that for the purposes of this Agreement, the term “Confidential Information” shall mean all\ninformation (financial, technical or otherwise) in whatever form (written, oral or otherwise) that relates to the Company’s Business and which is\ndisclosed to me or acquired by me in the course of my employment in any way concerning the trade secrets, projects, activities, business, clients,\ntrade practices, know-how or affairs of the Company, its parents, subsidiaries and affiliates, including, without limitation, all information concerning\nresearch, development tools, applications, products, business formulas, discoveries, ideas, concepts, know-how, techniques, diagrams, flow charts,\ndata, algorithms, source and object code, methods of operations, solutions, tools, marketing and development plans, customer or investor names,\ntransactions, acquisitions, all marketing plans, strategies and forecasts and other technical or business information, regarding existing and/or\ncontemplated products, processes, techniques or know-how, or any data or information developed by me pursuant to the performance of my services\nhereunder. I further understand that Confidential Information does not include any of the foregoing items which have become publicly known and\nmade generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the Confidential Information\ninvolved.\n3. Use of Confidential Information.\n(a) During the course of my employment, I acknowledge that I will have access to Confidential Information. Therefore, during the term\nof my employment, and for all times thereafter, I will treat as confidential and, except as required in the performance of my employment duties and\nresponsibilities, will not disclose, publish, use or otherwise make available to the public or to any individual, firm or corporation any Confidential\nInformation.\n(b) I shall notify the Company immediately upon discovery of any unauthorized disclosure of Confidential Information, use of\nConfidential Information other than in carrying out my duties with the Company, or any other breach of this Agreement by me, and will cooperate\nwith the Company in every reasonable way to help the Company regain possession of the Confidential Information and prevent its further\nunauthorized use.\n4. Return of Confidential Information. I agree that all Confidential Information, together with all notes and records relating thereto, and all\ncopies, duplicates, reproductions, facsimiles or excerpts thereof in my possession, are the exclusive property of the Company. I will return promptly\nall such materials to the Company upon the termination of my employment or upon the Company’s demand. In addition, I will return promptly to the\nCompany upon the\nconclusion of my employment all reports, files, memoranda, records and software, credit cards, cardkey passes, door and file keys, computer access\ncodes or disks, instructional material, and other physical or personal property which I receive or prepare in connection with my employment with the\nCompany.\n5. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the premises of\nthe Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity.\n6. Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or\nproprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my duties for the Company consistent with the Company’s agreement with such third\nparty.\n7. Proprietary Rights.\n(a) I agree to assign, and hereby assign, to the Company, without additional compensation, all right, title and interest in all creations,\ninventions, ideas, designs, copyrightable materials, trademarks, and other technology and rights (and any related improvements or modifications),\nwhether or not subject to patent or copyright protection (collectively, “Creations™), relating to any activities of the Company that are conceived or\ndeveloped by me in the course of my employment, whether conceived alone or with others and whether or not conceived or developed during regular\nbusiness hours, and if based on Confidential Information, after the termination of my employment for any reason. Such Creations shall be the sole\nproperty of the Company and, to the maximum extent permitted by applicable law, shall be deemed “works made for hire” as the term is used in the\nUnited States Copyright Act.\n(b) I agree to promptly inform the Company of any such Creations. I will also allow the Company to inspect any Creations I conceive or\ndevelop within (i) one (1) year after the termination of my employment for any reason, or (ii) during the Salary Continuation Period (as that term is\ndefined in the Employment Agreement), whichever period is greater, to determine if they are based on Confidential Information. I will (whether\nduring my employment or after the termination of my employment) execute such written instruments and do other such acts as may be necessary in\nthe opinion of the Company or its counsel to secure the Company’s rights in the Creations, including obtaining a patent, registering a copyright, or\notherwise (and I hereby irrevocably appoint the Company and any of its officers as my attorney in fact to undertake such acts in my name). I agree\nthat my obligation to execute written instruments and otherwise assist the Company in securing its rights in the Creations will continue after the\ntermination of my employment for any reason.\n(c) To the extent, if any, that I retain any right, title or interest with respect to any Creations that are delivered to the Company or relate to\nmy employment with the Company, I hereby grant to the Company an irrevocable, paid-up, transferable, sub-licensable, worldwide right and license\n(i) to modify all or any portion of such Creations, including, without limitation, the making of additions to or deletions from such Creations,\nregardless of the medium (now or hereafter known) into which such Creations may be modified and regardless of the effect of such modifications on\nthe integrity of such Creations, and (ii) to identify me, or not to identify me, as one or more authors of or contributors to such Creations or any\nportion thereof, whether or not such Creations or any portion thereof have been modified. I further waive any “moral” rights, or other rights with\nrespect to attribution of authorship or integrity of such Creations that I may have under any applicable law, whether under copyright, trademark,\nunfair competition, defamation, right of privacy, contract, tort or other legal theory.\n(d) I have attached to this Agreement as Exhibit A, a list describing all inventions, original works of authorship, developments,\nimprovements, and trade secrets which were made by me prior to my employment with the Company (collectively referred to as “Prior Inventions”),\nwhich belong to me, which relate to the Company’s proposed business, products or research and development, and which are not assigned to the\nCompany hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my employment with the\nCompany, I incorporate into a Company product, process or machine a Prior Invention owned by me or in which I have an interest, the Company is\nhereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\n8. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity competitive with the Business of the Company, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\n9. Non-Competition. During my employment and for a period of one (1) year following the date on which my employment with the Company\nterminates for any reason (the “Restricted Period”), I shall not, directly or indirectly, own, manage, operate, control or participate in the ownership,\nmanagement or control of, or be connected as an officer, employee, partner, director, or otherwise with, or have any financial interest in, or aid or\nassist anyone else in the conduct of, any entity or business (existing on the date that my employment with the Company terminates and/or during the\none-year period thereafter) that competes with the Business conducted by the Company or any of its subsidiaries or affiliates within any area in\nwhich the Company conducts its Business on the date that my employment with the Company terminates. Notwithstanding the foregoing, my\nownership of securities of a public company engaged in competition with the Company’s Business not in excess of two percent (2%) of any class of\nsuch securities shall not be considered a breach of the covenants set forth in this Section.\n \n10. Non-Solicitation. I agree that during the Restricted Period, I will not, directly or indirectly, take any of the following actions, and, to the\nextent that I own, manage, operate, control, am employed by or participate in the ownership, management, operation or control of, or am connected\nin any manner with, any business of the type and character engaged in and\n3\ncompetitive with the Business of the Company or any of its subsidiaries or affiliates during the period of my employment, I will use my best efforts\nto ensure that such business does not take any of the following actions:\n(a) persuade or attempt to persuade any customer of the Company to cease doing business with the Company or any of its subsidiaries or\naffiliates, or to reduce the amount of business it does with the Company or any of its subsidiaries or affiliates;\n(b) solicit for me or for any person or entity other than the Company, the business of any customer of the Company or any of its\nsubsidiaries or affiliates that was a customer of the Company within six months prior to the termination of my employment;\n(c) persuade or attempt to persuade any present employee of the Company or any of its subsidiaries or affiliates, or any individual who\nwas its employee or any of its subsidiaries or affiliates during the two (2) years prior to the termination of my employment, to leave the employ of\nthe Company or any of its subsidiaries or affiliates; or\n(d) knowingly hire or offer employment to any present senior (at the level of vice president or higher) employee of the Company or any\nof its subsidiaries or affiliates, or any individual who was its senior (at the level of vice president or higher), employee or any of its subsidiaries or\naffiliates during the two (2) years prior to the termination of my employment.\n11. Special Remedy. I recognize that the Confidential Information to be protected by this Agreement is special, unique and extraordinary in\ncharacter, and that in the event of any breach by me of any of the terms or conditions of this Agreement, the Company shall be entitled, if it so elects,\nto institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages from me for any such\nbreach or to enforce the specific performance of this Agreement by me. I further acknowledge that a breach of my obligations under this Agreement\ncould cause the Company irreparable harm for which no adequate remedy at law would be available, and that the Company in such circumstances\nwould be entitled to injunctive relief preventing or enjoining any breach of my obligations, without the need to post any bond. I specifically consent\nto the jurisdiction of the United States District Court for the District of Connecticut, or if that court is unable to exercise jurisdiction for any reason,\nto the Superior Court of Connecticut, the New Haven Judicial Branch, for this purpose and irrevocably waive any objection I now have or hereafter\nmay have as to the venue of any such action brought under this Section.\n12. Miscellaneous.\n(a) Covenants Reasonable. I expressly acknowledge and agree that the covenants set forth herein are reasonable in all respects, and\nnecessary in order to protect, maintain and preserve the value and goodwill of the Company, as well as the proprietary and other legitimate business\ninterests of the Company. I further acknowledge and agree that the covenants and agreements set forth herein constitute a significant part of the\nconsideration given by me to the Company in exchange for the payment of my salary and benefits by the Company, and are a material reason for\nsuch payment.\n(b) Indemnification. I agree to indemnify and hold the Company harmless from and against any and all damages, losses or expenses,\nincluding attorneys’ fees, relating to any breach by me of my obligations under this Agreement.\n(c) At-Will Employment. I understand and acknowledge that this Agreement is not intended to, and shall not be construed as, creating a\ncontract of employment for any specific duration. Unless I have entered into a written employment contract signed by an officer of the Company\nproviding otherwise, my employment with the Company remains “at-will”, meaning that either I or the Company may, at any time, terminate my\nemployment with or without cause and with or without notice.\n(d) Validity. I agree that the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall otherwise remain in full force and effect. Moreover, if any one or more of the\nprovisions contained in this Agreement is held to be excessively broad as to duration, scope or activity, I agree that such provisions shall be\nconstrued by limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable law.\n(e) Waivers. The waiver by the Company or me of any right under this Agreement or of any failure to perform or any breach by the\nother shall not be deemed a waiver of any other right under this Agreement or of any other failure or any other breach by such party, whether of the\nsame or a similar nature or otherwise. No waiver shall be deemed to have occurred unless set forth in writing executed by or on behalf of the waiving\nparty. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to\nthe specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that\nspecifically waived.\n(f) Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Delaware without\nregard to its principles of conflicts of law.\n(g) Successors; Binding Agreement. This Agreement and the rights and obligations of the Company and me under this Agreement shall\ninure to our benefit and to the benefit of our respective heirs, personal representatives, successors and assigns. I specifically agree that the Company\nmay assign this Agreement to any successor.\n(h) Entire Agreement. This Agreement, and the Employment Agreement, set forth the entire agreement and understanding of the\nCompany and me with respect of its subject matter, and supersedes all prior agreements, promises, covenants, arrangements, communications,\nrepresentations or warranties, whether oral or written, by any officer, executive or representative of either party in respect of said subject matter.\n(i) Headings Descriptive. The headings of the Sections of this Agreement are inserted for convenience only and shall not in any way\naffect the meaning or construction of this Agreement.\n(j) Capacity. I represent and warrant that I am not a party to any agreement that would prohibit me from entering into this Agreement or\nperforming fully my obligations under this Agreement.\nDate: March 19, 2010 /s/ Mark Leuchetenberger\nSignature\nMark Leuchtenberger	EX-10.37 15 d255425dex1037.hti EMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT,\nMARK LEUCHTENBERGER\nExhibit 10.37\nExecution Copy\nRIB-X PHARMACEUTICALS, INC.\nEMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nAs a condition of my employment with Rib-X Pharmaceuticals, Inc. its subsidiaries, affiliates, successors or assigns (together the "Company"),\nand in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the Company, I\nagree to the following\n1. Company's Business. I acknowledge that the Company is engaged in the business of discovering, developing and commercializing\nantibiotics (the "Business").\n2. Confidential Information. I acknowledge that for the purposes of this Agreement, the term "Confidential Information" shall mean all\ninformation (financial, technical or otherwise) in whatever form (written, oral or otherwise) that relates to the Company's Business and which is\ndisclosed to me or acquired by me in the course of my employment in any way concerning the trade secrets, projects, activities, business, clients,\ntrade practices, know-how or affairs of the Company, its parents, subsidiaries and affiliates, including, without limitation, all information concerning\nresearch, development tools, applications, products, business formulas, discoveries, ideas, concepts, know-how, techniques, diagrams, flow charts,\ndata, algorithms, source and object code, methods of operations, solutions, tools, marketing and development plans, customer or investor names,\ntransactions, acquisitions, all marketing plans, strategies and forecasts and other technical or business information, regarding existing and/or\ncontemplated products, processes, techniques or know-how, or any data or information developed by me pursuant to the performance of my services\nhereunder. I further understand that Confidential Information does not include any of the foregoing items which have become publicly known and\nmade generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the Confidential Information\ninvolved.\n3. Use of Confidential Information.\n(a)\nDuring\nthe course of my employment, I acknowledge that I will have access to Confidential Information. Therefore, during the\nterm\nof my employment, and for all times thereafter, I will treat as confidential and, except as required in the performance of my employment duties and\nresponsibilities, will not disclose, publish, use or otherwise make available to the public or to any individual, firm or corporation any Confidential\nInformation.\n(b) I shall notify the Company immediately upon discovery of any unauthorized disclosure of Confidential Information, use of\nConfidential\nInformation\nother\nthan\nin\ncarrying\nout\nmy\nduties\nwith\nthe\nCompany,\nor\nany\nother\nbreach\nof\nthis\nAgreement\nby\nme,\nand\nwill\ncooperate\nwith the Company in every reasonable way to help the Company regain possession of the Confidential Information and prevent its further\nunauthorized use.\n4. Return of Confidential Information I agree that all Confidential Information, together with all notes and records relating thereto, and all\ncopies, duplicates, reproductions, facsimiles or excerpts thereof in my possession, are the exclusive property of the Company. I will return promptly\nall such materials to the Company upon the termination of my employment or upon the Company's demand. In addition, I will return promptly to the\nCompany upon the\nconclusion of my employment all reports, files, memoranda, records and software, credit cards, cardkey passes, door and file keys, computer access\ncodes or disks, instructional material, and other physical or personal property which I receive or prepare in connection with my employment with the\nCompany.\n5. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary\ninformation or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the premises of\nthe Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity.\n6. Third Party. Information. I recognize that the Company has received and in the future will receive from third parties their confidential or\nproprietary information subject to a duty on the Company's part to maintain the confidentiality of such information and to use it only for certain\nlimited\npurposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my duties for the Company consistent with the Company's agreement with such third\nparty.\n7. Proprietary Rights.\n(a) I agree to assign, and hereby assign, to the Company, without additional compensation, all right, title and interest in all creations,\ninventions, ideas, designs, copyrightable materials, trademarks, and other technology and rights (and any related improvements or modifications),\nwhether or not subject to patent or copyright protection (collectively, "Creations"), relating to any activities of the Company that are conceived or\ndeveloped by me in the course of my employment, whether conceived alone or with others and whether or not conceived or developed during regular\nbusiness hours, and if based on Confidential Information, after the termination of my employment for any reason. Such Creations shall be the sole\nproperty of the Company and, to the maximum extent permitted by applicable law, shall be deemed "works made for hire" as the term is used in the\nUnited States Copyright Act.\n(b) I agree to promptly inform the Company of any such Creations. I will also allow the Company to inspect any Creations I conceive or\ndevelop within (i) one (1) year after the termination of my employment for any reason, or (ii) during the Salary Continuation Period (as that term is\ndefined in the Employment Agreement), whichever period is greater, to determine if they are based on Confidential Information. I will (whether\nduring my employment or after the termination of my employment) execute such written instruments and do other such acts as may be necessary in\nthe opinion of the Company or its counsel to secure the Company's rights in the Creations, including obtaining a patent, registering a copyright, or\notherwise (and I hereby irrevocably appoint the Company and any of its officers as my attorney in fact to undertake such acts in my name). I agree\nthat my obligation to execute written instruments and otherwise assist the Company in securing its rights in the Creations will continue after the\ntermination of my employment for any reason.\n2\n(c) To the extent, if any, that I retain any right, title or interest with respect to any Creations that are delivered to the Company or relate to\nmy employment with the Company, I hereby grant to the Company an irrevocable, paid-up, transferable, sub-licensable, worldwide right and license\n(i) to modify all or any portion of such Creations, including, without limitation, the making of additions to or deletions from such Creations,\nregardless of the medium (now or hereafter known) into which such Creations may be modified and regardless of the effect of such modifications on\nthe integrity of such Creations, and (ii) to identify me, or not to identify me, as one or more authors of or contributors to such Creations or any\nportion thereof, whether or not such Creations or any portion thereof have been modified. I further waive any "moral" rights, or other rights with\nrespect to attribution of authorship or integrity of such Creations that I may have under any applicable law, whether under copyright, trademark,\nunfair competition, defamation, right of privacy, contract, tort or other legal theory.\n(d) I have attached to this Agreement as Exhibit A, a list describing all inventions, original works of authorship, developments,\nimprovements, and trade secrets which were made by me prior to my employment with the Company (collectively referred to as "Prior Inventions"),\nwhich belong to me, which relate to the Company's proposed business, products or research and development, and which are not assigned to the\nCompany hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my employment with the\nCompany, I incorporate into a Company product, process or machine a Prior Invention owned by me or in which I have an interest, the Company is\nhereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\n8. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity competitive with the Business of the Company, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\n9. Non-Competition. During my employment and for a period of one (1) year following the date on which my employment with the Company\nterminates for any reason (the "Restricted Period"), I shall not, directly or indirectly, own, manage, operate, control or participate in the ownership,\nmanagement or control of, or be connected as an officer, employee, partner, director, or otherwise with, or have any financial interest in, or aid or\nassist anyone else in the conduct of, any entity or business (existing on the date that my employment with the Company terminates and/or during the\none-year period thereafter) that competes with the Business conducted by the Company or any of its subsidiaries or affiliates within any area in\nwhich the Company conducts its Business on the date that my employment with the Company terminates. Notwithstanding the foregoing, my\nownership of securities of a public company engaged in competition with the Company's Business not in excess of two percent (2%) of any class of\nsuch securities shall not be considered a breach of the covenants set forth in this Section.\n10. Non-Solicitation. I agree that during the Restricted Period, I will not, directly or indirectly, take any of the following actions, and, to the\nextent that I own, manage, operate, control, am employed by or participate in the ownership, management, operation or control of, or am connected\nin any manner with, any business of the type and character engaged in and\n3\ncompetitive with the Business of the Company or any of its subsidiaries or affiliates during the period of my employment, I will use my best efforts\nto ensure that such business does not take any of the following actions:\n(a) persuade or attempt to persuade any customer of the Company to cease doing business with the Company or any of its subsidiaries or\naffiliates, or to reduce the amount of business it does with the Company or any of its subsidiaries or affiliates;\n(b) solicit for me or for any person or entity other than the Company, the business of any customer of the Company or any\nof\nits\nsubsidiaries or affiliates that was a customer of the Company within six months prior to the termination of my employment;\n(c) persuade or attempt to persuade any present employee of the Company or any of its subsidiaries or affiliates, or any individual who\nwas its employee or any of its subsidiaries or affiliates during the two (2) years prior to the termination of my employment, to leave the employ of\nthe Company or any of its subsidiaries or affiliates; or\n(d) knowingly hire or offer employment to any present senior (at the level of vice president or higher) employee of the Company or any\nof its subsidiaries or affiliates, or any individual who was its senior (at the level of vice president or higher), employee or any of its subsidiaries or\naffiliates during the two (2) years prior to the termination of my employment.\n11. Special Remedy.. I recognize that the Confidential Information to be protected by this Agreement is special, unique and extraordinary in\ncharacter, and that in the event of any breach by me of any of the terms or conditions of this Agreement, the Company shall be entitled, if it so elects,\nto institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages from me for any such\nbreach or to enforce the specific performance of this Agreement by me. I further acknowledge that a breach of my obligations under this Agreement\ncould cause the Company irreparable harm for which no adequate remedy at law would be available, and that the Company in such circumstances\nwould be entitled to injunctive relief preventing or enjoining any breach of my obligations, without the need to post any bond. I specifically consent\nto the jurisdiction of the United States District Court for the District of Connecticut, or if that court is unable to exercise jurisdiction for any\nreason,\nto the Superior Court of Connecticut, the New Haven Judicial Branch, for this purpose and irrevocably waive any objection I now have or hereafter\nmay have as to the venue of any such action brought under this Section.\n12. Miscellaneous.\n(a) Covenants Reasonable. I expressly acknowledge and agree that the covenants set forth herein are reasonable in all respects, and\nnecessary in order to protect, maintain and preserve the value and goodwill of the Company, as well as the proprietary and other legitimate business\ninterests of the Company. I further acknowledge and agree that the covenants and agreements set forth herein constitute a significant part of the\nconsideration given by me to the Company in exchange for the payment of my salary and benefits by the Company, and are a material reason for\nsuch payment.\n4\n(b) Indemnification. I agree to indemnify and hold the Company harmless from and against any and all damages, losses or expenses,\nincluding attorneys' fees, relating to any breach by me of my obligations under this Agreement.\n(c) At-Will Employment. I understand and acknowledge that this Agreement is not intended to, and shall not be construed as, creating\na\ncontract of employment for any specific duration. Unless I have entered into a written employment contract signed by an officer of the Company\nproviding otherwise, my employment with the Company remains "at-will", meaning that either I or the Company may, at any time, terminate my\nemployment with or without cause and with or without notice.\n(d) Validity. I agree that the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall otherwise remain in full force and effect. Moreover, if any one or more of the\nprovisions contained in this Agreement is held to be excessively broad as to duration, scope or activity, I agree that such provisions shall be\nconstrued by limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable law.\n(e) Waivers. The waiver by the Company or me of any right under this Agreement or of any failure to perform or any breach by the\nother shall not be deemed a waiver of any other right under this Agreement or of any other failure or any other breach by such party, whether of the\nsame or a similar nature or otherwise. No waiver shall be deemed to have occurred unless set forth in writing executed by or on behalf of the waiving\nparty. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to\nthe specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that\nspecifically waived.\n(f) Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Delaware without\nregard to its principles of conflicts of law.\n(g) Successors; Binding Agreement. This Agreement and the rights and obligations of the Company and me under this Agreement shall\ninure to our benefit and to the benefit of our respective heirs, personal representatives, successors and assigns. I specifically agree that the Company\nmay assign this Agreement to any successor.\n(h) Entire Agreement. This Agreement, and the Employment Agreement, set forth the entire agreement and understanding of the\nCompany and me with respect of its subject matter, and supersedes all prior agreements, promises, covenants, arrangements, communications,\nrepresentations or warranties, whether oral or written, by any officer, executive or representative of either party in respect of said subject matter.\n(i) Headings Descriptive. The headings of the Sections of this Agreement are inserted for convenience only and shall not in any way\naffect the meaning or construction of this Agreement.\n5\n(j) Capacity. I represent and warrant that I am not a party to any agreement that would prohibit me from entering into this Agreement or\nperforming fully my obligations under this Agreement.\nDate: March 19, 2010\n/s/ Mark Leuchetenberger\nSignature\nMark Leuchtenberger\n6	EX-10.37 15 d255425dex1037.htm EMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT,\nMARK LEUCHTENBERGER\nExhibit 10.37\nExecution Copy\nRIB-X PHARMACEUTICALS, INC.\nEMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nAs a condition of my employment with Rib-X Pharmaceuticals, Inc. its subsidiaries, affiliates, successors or assigns (together the “Company”),\nand in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the Company, I\nagree to the following:\n1. Company’s Business. I acknowledge that the Company is engaged in the business of discovering, developing and commercializing\nantibiotics (the “Business”).\n2. Confidential Information. I acknowledge that for the purposes of this Agreement, the term “Confidential Information” shall mean all\ninformation (financial, technical or otherwise) in whatever form (written, oral or otherwise) that relates to the Company’s Business and which is\ndisclosed to me or acquired by me in the course of my employment in any way concerning the trade secrets, projects, activities, business, clients,\ntrade practices, know-how or affairs of the Company, its parents, subsidiaries and affiliates, including, without limitation, all information concerning\nresearch, development tools, applications, products, business formulas, discoveries, ideas, concepts, know-how, techniques, diagrams, flow charts,\ndata, algorithms, source and object code, methods of operations, solutions, tools, marketing and development plans, customer or investor names,\ntransactions, acquisitions, all marketing plans, strategies and forecasts and other technical or business information, regarding existing and/or\ncontemplated products, processes, techniques or know-how, or any data or information developed by me pursuant to the performance of my services\nhereunder. I further understand that Confidential Information does not include any of the foregoing items which have become publicly known and\nmade generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the Confidential Information\ninvolved.\n3. Use of Confidential Information.\n(a) During the course of my employment, I acknowledge that I will have access to Confidential Information. Therefore, during the term\nof my employment, and for all times thereafter, I will treat as confidential and, except as required in the performance of my employment duties and\nresponsibilities, will not disclose, publish, use or otherwise make available to the public or to any individual, firm or corporation any Confidential\nInformation.\n(b) I shall notify the Company immediately upon discovery of any unauthorized disclosure of Confidential Information, use of\nConfidential Information other than in carrying out my duties with the Company, or any other breach of this Agreement by me, and will cooperate\nwith the Company in every reasonable way to help the Company regain possession of the Confidential Information and prevent its further\nunauthorized use.\n4. Return of Confidential Information. I agree that all Confidential Information, together with all notes and records relating thereto, and all\ncopies, duplicates, reproductions, facsimiles or excerpts thereof in my possession, are the exclusive property of the Company. I will return promptly\nall such materials to the Company upon the termination of my employment or upon the Company’s demand. In addition, I will return promptly to the\nCompany upon the\nconclusion of my employment all reports, files, memoranda, records and software, credit cards, cardkey passes, door and file keys, computer access\ncodes or disks, instructional material, and other physical or personal property which I receive or prepare in connection with my employment with the\nCompany.\n5. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the premises of\nthe Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity.\n6. Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or\nproprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my duties for the Company consistent with the Company’s agreement with such third\nparty.\n7. Proprietary Rights.\n(a) I agree to assign, and hereby assign, to the Company, without additional compensation, all right, title and interest in all creations,\ninventions, ideas, designs, copyrightable materials, trademarks, and other technology and rights (and any related improvements or modifications),\nwhether or not subject to patent or copyright protection (collectively, “Creations”), relating to any activities of the Company that are conceived or\ndeveloped by me in the course of my employment, whether conceived alone or with others and whether or not conceived or developed during regular\nbusiness hours, and if based on Confidential Information, after the termination of my employment for any reason. Such Creations shall be the sole\nproperty of the Company and, to the maximum extent permitted by applicable law, shall be deemed “works made for hire” as the term is used in the\nUnited States Copyright Act.\n(b) I agree to promptly inform the Company of any such Creations. I will also allow the Company to inspect any Creations I conceive or\ndevelop within (i) one (1) year after the termination of my employment for any reason, or (ii) during the Salary Continuation Period (as that term is\ndefined in the Employment Agreement), whichever period is greater, to determine if they are based on Confidential Information. I will (whether\nduring my employment or after the termination of my employment) execute such written instruments and do other such acts as may be necessary in\nthe opinion of the Company or its counsel to secure the Company’s rights in the Creations, including obtaining a patent, registering a copyright, or\notherwise (and I hereby irrevocably appoint the Company and any of its officers as my attorney in fact to undertake such acts in my name). I agree\nthat my obligation to execute written instruments and otherwise assist the Company in securing its rights in the Creations will continue after the\ntermination of my employment for any reason.\n2\n(c) To the extent, if any, that I retain any right, title or interest with respect to any Creations that are delivered to the Company or relate to\nmy employment with the Company, I hereby grant to the Company an irrevocable, paid-up, transferable, sub-licensable, worldwide right and license\n(i) to modify all or any portion of such Creations, including, without limitation, the making of additions to or deletions from such Creations,\nregardless of the medium (now or hereafter known) into which such Creations may be modified and regardless of the effect of such modifications on\nthe integrity of such Creations, and (ii) to identify me, or not to identify me, as one or more authors of or contributors to such Creations or any\nportion thereof, whether or not such Creations or any portion thereof have been modified. I further waive any “moral” rights, or other rights with\nrespect to attribution of authorship or integrity of such Creations that I may have under any applicable law, whether under copyright, trademark,\nunfair competition, defamation, right of privacy, contract, tort or other legal theory.\n(d) I have attached to this Agreement as Exhibit A, a list describing all inventions, original works of authorship, developments,\nimprovements, and trade secrets which were made by me prior to my employment with the Company (collectively referred to as “Prior Inventions”),\nwhich belong to me, which relate to the Company’s proposed business, products or research and development, and which are not assigned to the\nCompany hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my employment with the\nCompany, I incorporate into a Company product, process or machine a Prior Invention owned by me or in which I have an interest, the Company is\nhereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\n8. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity competitive with the Business of the Company, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\n9. Non-Competition. During my employment and for a period of one (1) year following the date on which my employment with the Company\nterminates for any reason (the “Restricted Period”), I shall not, directly or indirectly, own, manage, operate, control or participate in the ownership,\nmanagement or control of, or be connected as an officer, employee, partner, director, or otherwise with, or have any financial interest in, or aid or\nassist anyone else in the conduct of, any entity or business (existing on the date that my employment with the Company terminates and/or during the\none-year period thereafter) that competes with the Business conducted by the Company or any of its subsidiaries or affiliates within any area in\nwhich the Company conducts its Business on the date that my employment with the Company terminates. Notwithstanding the foregoing, my\nownership of securities of a public company engaged in competition with the Company’s Business not in excess of two percent (2%) of any class of\nsuch securities shall not be considered a breach of the covenants set forth in this Section.\n10. Non-Solicitation. I agree that during the Restricted Period, I will not, directly or indirectly, take any of the following actions, and, to the\nextent that I own, manage, operate, control, am employed by or participate in the ownership, management, operation or control of, or am connected\nin any manner with, any business of the type and character engaged in and\n3\ncompetitive with the Business of the Company or any of its subsidiaries or affiliates during the period of my employment, I will use my best efforts\nto ensure that such business does not take any of the following actions:\n(a) persuade or attempt to persuade any customer of the Company to cease doing business with the Company or any of its subsidiaries or\naffiliates, or to reduce the amount of business it does with the Company or any of its subsidiaries or affiliates;\n(b) solicit for me or for any person or entity other than the Company, the business of any customer of the Company or any of its\nsubsidiaries or affiliates that was a customer of the Company within six months prior to the termination of my employment;\n(c) persuade or attempt to persuade any present employee of the Company or any of its subsidiaries or affiliates, or any individual who\nwas its employee or any of its subsidiaries or affiliates during the two (2) years prior to the termination of my employment, to leave the employ of\nthe Company or any of its subsidiaries or affiliates; or\n(d) knowingly hire or offer employment to any present senior (at the level of vice president or higher) employee of the Company or any\nof its subsidiaries or affiliates, or any individual who was its senior (at the level of vice president or higher), employee or any of its subsidiaries or\naffiliates during the two (2) years prior to the termination of my employment.\n11. Special Remedy. I recognize that the Confidential Information to be protected by this Agreement is special, unique and extraordinary in\ncharacter, and that in the event of any breach by me of any of the terms or conditions of this Agreement, the Company shall be entitled, if it so elects,\nto institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages from me for any such\nbreach or to enforce the specific performance of this Agreement by me. I further acknowledge that a breach of my obligations under this Agreement\ncould cause the Company irreparable harm for which no adequate remedy at law would be available, and that the Company in such circumstances\nwould be entitled to injunctive relief preventing or enjoining any breach of my obligations, without the need to post any bond. I specifically consent\nto the jurisdiction of the United States District Court for the District of Connecticut, or if that court is unable to exercise jurisdiction for any reason,\nto the Superior Court of Connecticut, the New Haven Judicial Branch, for this purpose and irrevocably waive any objection I now have or hereafter\nmay have as to the venue of any such action brought under this Section.\n12. Miscellaneous.\n(a) Covenants Reasonable. I expressly acknowledge and agree that the covenants set forth herein are reasonable in all respects, and\nnecessary in order to protect, maintain and preserve the value and goodwill of the Company, as well as the proprietary and other legitimate business\ninterests of the Company. I further acknowledge and agree that the covenants and agreements set forth herein constitute a significant part of the\nconsideration given by me to the Company in exchange for the payment of my salary and benefits by the Company, and are a material reason for\nsuch payment.\n4\n(b) Indemnification. I agree to indemnify and hold the Company harmless from and against any and all damages, losses or expenses,\nincluding attorneys’ fees, relating to any breach by me of my obligations under this Agreement.\n(c) At-Will Employment. I understand and acknowledge that this Agreement is not intended to, and shall not be construed as, creating a\ncontract of employment for any specific duration. Unless I have entered into a written employment contract signed by an officer of the Company\nproviding otherwise, my employment with the Company remains “at-will”, meaning that either I or the Company may, at any time, terminate my\nemployment with or without cause and with or without notice.\n(d) Validity. I agree that the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall otherwise remain in full force and effect. Moreover, if any one or more of the\nprovisions contained in this Agreement is held to be excessively broad as to duration, scope or activity, I agree that such provisions shall be\nconstrued by limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable law.\n(e) Waivers. The waiver by the Company or me of any right under this Agreement or of any failure to perform or any breach by the\nother shall not be deemed a waiver of any other right under this Agreement or of any other failure or any other breach by such party, whether of the\nsame or a similar nature or otherwise. No waiver shall be deemed to have occurred unless set forth in writing executed by or on behalf of the waiving\nparty. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to\nthe specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that\nspecifically waived.\n(f) Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Delaware without\nregard to its principles of conflicts of law.\n(g) Successors; Binding Agreement. This Agreement and the rights and obligations of the Company and me under this Agreement shall\ninure to our benefit and to the benefit of our respective heirs, personal representatives, successors and assigns. I specifically agree that the Company\nmay assign this Agreement to any successor.\n(h) Entire Agreement. This Agreement, and the Employment Agreement, set forth the entire agreement and understanding of the\nCompany and me with respect of its subject matter, and supersedes all prior agreements, promises, covenants, arrangements, communications,\nrepresentations or warranties, whether oral or written, by any officer, executive or representative of either party in respect of said subject matter.\n(i) Headings Descriptive. The headings of the Sections of this Agreement are inserted for convenience only and shall not in any way\naffect the meaning or construction of this Agreement.\n5\n(j) Capacity. I represent and warrant that I am not a party to any agreement that would prohibit me from entering into this Agreement or\nperforming fully my obligations under this Agreement.\nDate: March 19, 2010\n/s/ Mark Leuchetenberger\nSignature\nMark Leuchtenberger\n6
fdf657ad612664d6f363040992f9a93c.pdf	effective_date jurisdiction party term	EX-7.2 3 dex72.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.2\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement dated as of January 27, 2011 (the “Agreement”), is entered into between 99¢ Only Stores, a California\ncorporation (the Company”), and Leonard Green & Partners, L.P., a Limited Partnership (“Counterparty”). Each of the Company and Counterparty\nare referred to herein as a “Party.”\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company’s CEO, a possible negotiated\ntransaction (a “Possible Transaction”) involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Affiliate” of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term “control” means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) “Representatives” means a Party’s officers, directors, employees, legal counsel, financial advisors and, in the case of Counterparty,\nany consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) “Restriction Period” means the period commencing on the date hereof and ending on the date that is 18 months from the date hereof.\n1\n(d) “Review Material” means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished by the Company or its Representatives to Counterparty or its Representatives relating to a Possible Transaction or furnished in\nconnection with the consideration of a Possible Transaction, and any and all analyses, compilations, studies, documents, or other material prepared\nby Counterparty or its Representatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials\n(“Counterparty Materials”), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes\navailable to the public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes\navailable to Counterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its\nor its Affiliates’ Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data,\nanalyses, documents or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its\nor its Affiliates’ Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a\nviolation of this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way detrimental\nor adverse to the Company or its business or properties; provided, however, that Counterparty may disclose facts, terms, and conditions referred to in\nclause (a) above and any Review Material to those of its Representatives who need to know such information for the purpose of evaluating a\nPossible Transaction if, but only if, prior to being told of such matters or being given access to any Review Material, the applicable Representative is\ninformed of the confidential nature of the Review Material and agrees to be bound by the terms of this Agreement as if it were a party hereto.\nCounterparty agrees that all contacts and communications regarding Review Material or other matters related to this Agreement shall be submitted or\ndirected solely to either the Company’s Chief Financial Officer or its Chief Legal Officer, or such other person, if any, as the Company may\ndesignate in writing from time to time.\nSection 2.2 Compelled Disclosure.\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will\n2\npromptly notify the Company of the existence, terms, and circumstances of such requirement(s) so that the Company may seek an appropriate\nprotective order or waive compliance with the provisions of this Agreement, and (ii) will, and will cause its Representatives to, cooperate fully with\nthe Company in seeking a protective order or other assurance that confidential treatment will be accorded to the disclosed Review Material or other\nsuch matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. Upon the request of the Company, all Review Material, including all copies thereof and all\nnotes or other writings or documents containing any of its terms or provisions, shall be promptly returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty’s (or its Representatives’) use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction. Unless\nand until this Agreement is expressly amended or superseded in writing signed by both Parties, a Party shall not be under any obligation of any kind\nwhatsoever with respect to a Possible Transaction by virtue of this Agreement or any written or oral statement with respect to a Possible Transaction\nby the Party or its Representatives, except for the matters specifically agreed to by the Company and Counterparty in this Agreement. The Company\nreserves the right, in its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take\nplace) with respect to a Possible Transaction, to determine not to furnish or to stop\n3\nfurnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with respect to a Possible\nTransaction.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives have entered into, directly or indirectly,\nany agreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, directly or\nindirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives and members of the\nGold family and the Company’s CEO and their Representatives), with respect to a possible transaction involving the Company.\nARTICLE 3\nCERTAIN RESTRICTIONS\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company’s prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom you\nhave had contact or who became known to you in connection with your evaluation of a Possible Transaction, or solicit, induce or otherwise\nencourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company, provided, however, that the\nforegoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts Counterparty or such Affiliate on\nhis or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by Counterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions.\n(a) From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will not, nor will it permit any of its\nAffiliates to, without the Company’s prior written approval, singly or as part of a group, directly or indirectly, beneficially or otherwise, own (other\nthan the shares of Company common stock owned of record as of the date hereof by Counterparty or any of its affiliated funds), acquire or propose\nto acquire, by purchase, exchange, conversion or otherwise, any of the securities of the Company or material assets of the Company or any interest in\nany indebtedness of the Company or any rights or options to acquire, or that are otherwise related to or have a value derived from, any such\nsecurities or any such material assets or any such interests.\n(b) Until the Restriction Period expires, unless specifically invited in writing by the Company, Counterparty agrees that it will not, nor\nwill it permit any of its Affiliates to, make any public announcement with respect to (i) any form of merger, tender or exchange offer, consolidation,\nbusiness combination, change of control or other similar transaction with respect to the Company, (ii) any request to amend, waive or terminate the\nprovisions of this Agreement, or (iii) any proposal or other statement inconsistent with the terms of this Agreement.\n4\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company’s\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\n5\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99¢ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307 -9611\nwith a copy to:\nMunger, Tolles & Olson, LLP\n355 South Grand Avenue\nLos Angeles, CA 90071\nAttention: Mary Ann Todd\nFax: (213) 683-4020\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd, Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L .P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n6\nSection 4.8 . Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of\nthe State of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9 . No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\n7\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n99¢ Only Stores\nBy: /S/ RUSSELL WOLPERT\nIts: Chief Legal Officer\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.\nBy: /S/ KEITH P. COLLINS\nIts: Associate\n8	EX-7.2 3 dex72.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.2\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement dated as of January 27, 2011 (the “Agreement”), is entered into between 99¢ Only Stores, a California\ncorporation (the Company”), and Leonard Green & Partners, L.P., a Limited Partnership (“Counterparty”). Each of the Company and Counterparty\nare referred to herein as a “Party.”\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company’s CEO, a possible negotiated\ntransaction (a “Possible Transaction”) involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Affiliate” of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term “control” means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) “Representatives” means a Party’s officers, directors, employees, legal counsel, financial advisors and, in the case of Counterparty,\nany consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) “Restriction Period” means the period commencing on the date hereof and ending on the date that is 18 months from the date hereof.\n1\n(d) “Review Material” means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished by the Company or its Representatives to Counterparty or its Representatives relating to a Possible Transaction or furnished in\nconnection with the consideration of a Possible Transaction, and any and all analyses, compilations, studies, documents, or other material prepared\nby Counterparty or its Representatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials\n(“Counterparty Materials”), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes\navailable to the public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes\navailable to Counterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its\nor its Affiliates” Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data,\nanalyses, documents or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its\nor its Affiliates’ Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a\nviolation of this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way detrimental\nor adverse to the Company or its business or properties; provided, however, that Counterparty may disclose facts, terms, and conditions referred to in\nclause (a) above and any Review Material to those of its Representatives who need to know such information for the purpose of evaluating a\nPossible Transaction if, but only if, prior to being told of such matters or being given access to any Review Material, the applicable Representative is\ninformed of the confidential nature of the Review Material and agrees to be bound by the terms of this Agreement as if it were a party hereto.\nCounterparty agrees that all contacts and communications regarding Review Material or other matters related to this Agreement shall be submitted or\ndirected solely to either the Company’s Chief Financial Officer or its Chief Legal Officer, or such other person, if any, as the Company may\ndesignate in writing from time to time.\nSection 2.2 Compelled Disclosure.\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will\npromptly notify the Company of the existence, terms, and circumstances of such requirement(s) so that the Company may seek an appropriate\nprotective order or waive compliance with the provisions of this Agreement, and (ii) will, and will cause its Representatives to, cooperate fully with\nthe Company in seeking a protective order or other assurance that confidential treatment will be accorded to the disclosed Review Material or other\nsuch matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. Upon the request of the Company, all Review Material, including all copies thereof and all\nnotes or other writings or documents containing any of its terms or provisions, shall be promptly returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty’s (or its Representatives’) use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction. Unless\nand until this Agreement is expressly amended or superseded in writing signed by both Parties, a Party shall not be under any obligation of any kind\nwhatsoever with respect to a Possible Transaction by virtue of this Agreement or any written or oral statement with respect to a Possible Transaction\nby the Party or its Representatives, except for the matters specifically agreed to by the Company and Counterparty in this Agreement. The Company\nreserves the right, in its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take\nplace) with respect to a Possible Transaction, to determine not to furnish or to stop\n3\nfurnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with respect to a Possible\nTransaction.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives have entered into, directly or indirectly,\nany agreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, directly or\nindirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives and members of the\nGold family and the Company’s CEO and their Representatives), with respect to a possible transaction involving the Company.\nARTICLE 3\nCERTAIN RESTRICTIONS\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company’s prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom you\nhave had contact or who became known to you in connection with your evaluation of a Possible Transaction, or solicit, induce or otherwise\nencourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company, provided, however, that the\nforegoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts Counterparty or such Affiliate on\nhis or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by Counterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions.\n(a) From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will not, nor will it permit any of its\nAffiliates to, without the Company’s prior written approval, singly or as part of a group, directly or indirectly, beneficially or otherwise, own (other\nthan the shares of Company common stock owned of record as of the date hereof by Counterparty or any of its affiliated funds), acquire or propose\nto acquire, by purchase, exchange, conversion or otherwise, any of the securities of the Company or material assets of the Company or any interest in\nany indebtedness of the Company or any rights or options to acquire, or that are otherwise related to or have a value derived from, any such\nsecurities or any such material assets or any such interests.\n(b) Until the Restriction Period expires, unless specifically invited in writing by the Company, Counterparty agrees that it will not, nor\nwill it permit any of its Affiliates to, make any public announcement with respect to (i) any form of merger, tender or exchange offer, consolidation,\nbusiness combination, change of control or other similar transaction with respect to the Company, (ii) any request to amend, waive or terminate the\nprovisions of this Agreement, or (iii) any proposal or other statement inconsistent with the terms of this Agreement.\n4\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company’s\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99¢ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307-9611\nwith a copy to:\nMunger, Tolles & Olson, LLP\n355 South Grand Avenue\nLos Angeles, CA 90071\nAttention: Mary Ann Todd\nFax: (213) 683-4020\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd, Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L.P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n6\nSection 4.8. Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of\nthe State of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9. No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\n7\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the date first written above.\n99¢ Only Stores\nBy: /S/ RUSSELL WOLPERT\nIts: Chief Legal Officer\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.\nBy: /S/ KEITH P. COLLINS\nIts: Associate	EX-7.2 3 dex72.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.2\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement dated as of January 27, 2011 (the "Agreement"), is entered into between 99+ Only Stores, a California\ncorporation (the Company"), and Leonard Green & Partners, L.P., a Limited Partnership ("Counterparty"). Each of the Company and Counterparty\nare referred to herein as a "Party."\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company's CEO, a possible negotiated\ntransaction (a "Possible Transaction") involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) "Affiliate" of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term "control" means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) "Representatives" means a Party's officers, directors, employees, legal counsel, financial advisors and, in the case of Counterparty,\nany consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) "Restriction Period" means the period commencing on the date hereof and ending on the date that is 18 months from the date hereof.\n1\n(d)\n"Review Material" means any and all information, data, and analyses, whether written or oral, and any and all documents\nand\nmaterials, furnished by the Company or its Representatives to Counterparty or its Representatives relating to a Possible Transaction or furnished\nin\nconnection with the consideration of a Possible Transaction, and any and all analyses, compilations, studies, documents, or other material prepared\nby Counterparty or its Representatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials\n("Counterparty Materials"), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes\navailable to the public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes\navailable to Counterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its\nor its Affiliates' Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data,\nanalyses, documents or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its\nor its Affiliates' Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a\nviolation of this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality. Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for\nthe\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way detrimental\nor adverse to the Company or its business or properties; provided, however, that Counterparty may disclose facts, terms, and conditions referred to in\nclause (a) above and any Review Material to those of its Representatives who need to know such information for the purpose of evaluating a\nPossible Transaction if, but only if, prior to being told of such matters or being given access to any Review Material, the applicable Representative\nis\ninformed of the confidential nature of the Review Material and agrees to be bound by the terms of this Agreement as if it were a party hereto.\nCounterparty agrees that all contacts and communications regarding Review Material or other matters related to this Agreement shall be submitted or\ndirected solely to either the Company's Chief Financial Officer or its Chief Legal Officer, or such other person, if any, as the Company may\ndesignate in writing from time to time.\nSection 2.2 Compelled Disclosure.\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will\n2\npromptly notify the Company of the existence, terms, and circumstances of such requirement(s) SO that the Company may seek an appropriate\nprotective order or waive compliance with the provisions of this Agreement, and (ii) will, and will cause its Representatives to, cooperate fully with\nthe Company in seeking a protective order or other assurance that confidential treatment will be accorded to the disclosed Review Material or other\nsuch matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion\nof\nits\nlegal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe\nCompany. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. Upon the request of the Company, all Review Material, including all copies thereof and all\nnotes or other writings or documents containing any of its terms or provisions, shall be promptly returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty.. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty's (or its Representatives') use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility. for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction. Unless\nand until this Agreement is expressly amended or superseded in writing signed by both Parties, a Party shall not be under any obligation of any kind\nwhatsoever with respect to a Possible Transaction by virtue of this Agreement or any written or oral statement with respect to a Possible Transaction\nby the Party or its Representatives, except for the matters specifically agreed to by the Company and Counterparty in this Agreement. The Company\nreserves the right, in its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take\nplace) with respect to a Possible Transaction, to determine not to furnish or to stop\n3\nfurnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with respect to a Possible\nTransaction.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives have entered into, directly or indirectly,\nany agreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will\nenter\ninto,\ndirectly\nor\nindirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives and members of the\nGold family and the Company's CEO and their Representatives), with respect to a possible transaction involving the Company.\nARTICLE 3\nCERTAIN RESTRICTIONS\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company's prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom you\nhave had contact or who became known to you in connection with your evaluation of a Possible Transaction, or solicit, induce or otherwise\nencourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company, provided, however, that the\nforegoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts Counterparty or such Affiliate on\nhis or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by Counterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions.\n(a) From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will not, nor will it permit any of its\nAffiliates to, without the Company's prior written approval, singly or as part of a group, directly or indirectly, beneficially or otherwise, own (other\nthan the shares of Company common stock owned of record as of the date hereof by Counterparty or any of its affiliated funds), acquire or propose\nto acquire, by purchase, exchange, conversion or otherwise, any of the securities of the Company or material assets of the Company or any interest in\nany indebtedness of the Company or any rights or options to acquire, or that are otherwise related to or have a value derived from, any such\nsecurities or any such material assets or any such interests.\n(b) Until the Restriction Period expires, unless specifically invited in writing by the Company, Counterparty agrees that it will not, nor\nwill it permit any of its Affiliates to, make any public announcement with respect to (i) any form of merger, tender or exchange offer, consolidation,\nbusiness combination, change of control or other similar transaction with respect to the Company, (ii) any request to amend, waive or terminate the\nprovisions of this Agreement, or (iii) any proposal or other statement inconsistent with the terms of this Agreement.\n4\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company's\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability.. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\n5\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99 Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307-9611\nwith a copy to:\nMunger, Tolles & Olson, LLP\n355 South Grand Avenue\nLos Angeles, CA 90071\nAttention: Mary Ann Todd\nFax: (213) 683-4020\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd, Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L.P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n6\nSection 4.8. Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of\nthe State of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9. No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\n7\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n99+ Only Stores\nBy: /S/ RUSSELL WOLPERT\nIts: Chief Legal Officer\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.\nBy: /S/ KEITH P. COLLINS\nIts: Associate\n8	EX-7.2 3 dex72.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.2\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement dated as of January 27, 2011 (the “Agreement”), is entered into between 99¢ Only Stores, a California\ncorporation (the Company”), and Leonard Green & Partners, L.P., a Limited Partnership (“Counterparty”). Each of the Company and Counterparty\nare referred to herein as a “Party.”\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company’s CEO, a possible negotiated\ntransaction (a “Possible Transaction”) involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Affiliate” of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term “control” means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) “Representatives” means a Party’s officers, directors, employees, legal counsel, financial advisors and, in the case of Counterparty,\nany consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) “Restriction Period” means the period commencing on the date hereof and ending on the date that is 18 months from the date hereof.\n1\n(d) “Review Material” means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished by the Company or its Representatives to Counterparty or its Representatives relating to a Possible Transaction or furnished in\nconnection with the consideration of a Possible Transaction, and any and all analyses, compilations, studies, documents, or other material prepared\nby Counterparty or its Representatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials\n(“Counterparty Materials”), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes\navailable to the public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes\navailable to Counterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its\nor its Affiliates’ Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data,\nanalyses, documents or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its\nor its Affiliates’ Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a\nviolation of this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way detrimental\nor adverse to the Company or its business or properties; provided, however, that Counterparty may disclose facts, terms, and conditions referred to in\nclause (a) above and any Review Material to those of its Representatives who need to know such information for the purpose of evaluating a\nPossible Transaction if, but only if, prior to being told of such matters or being given access to any Review Material, the applicable Representative is\ninformed of the confidential nature of the Review Material and agrees to be bound by the terms of this Agreement as if it were a party hereto.\nCounterparty agrees that all contacts and communications regarding Review Material or other matters related to this Agreement shall be submitted or\ndirected solely to either the Company’s Chief Financial Officer or its Chief Legal Officer, or such other person, if any, as the Company may\ndesignate in writing from time to time.\nSection 2.2 Compelled Disclosure.\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will\n2\npromptly notify the Company of the existence, terms, and circumstances of such requirement(s) so that the Company may seek an appropriate\nprotective order or waive compliance with the provisions of this Agreement, and (ii) will, and will cause its Representatives to, cooperate fully with\nthe Company in seeking a protective order or other assurance that confidential treatment will be accorded to the disclosed Review Material or other\nsuch matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. Upon the request of the Company, all Review Material, including all copies thereof and all\nnotes or other writings or documents containing any of its terms or provisions, shall be promptly returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty’s (or its Representatives’) use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction. Unless\nand until this Agreement is expressly amended or superseded in writing signed by both Parties, a Party shall not be under any obligation of any kind\nwhatsoever with respect to a Possible Transaction by virtue of this Agreement or any written or oral statement with respect to a Possible Transaction\nby the Party or its Representatives, except for the matters specifically agreed to by the Company and Counterparty in this Agreement. The Company\nreserves the right, in its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take\nplace) with respect to a Possible Transaction, to determine not to furnish or to stop\n3\nfurnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with respect to a Possible\nTransaction.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives have entered into, directly or indirectly,\nany agreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, directly or\nindirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives and members of the\nGold family and the Company’s CEO and their Representatives), with respect to a possible transaction involving the Company.\nARTICLE 3\nCERTAIN RESTRICTIONS\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company’s prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom you\nhave had contact or who became known to you in connection with your evaluation of a Possible Transaction, or solicit, induce or otherwise\nencourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company, provided, however, that the\nforegoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts Counterparty or such Affiliate on\nhis or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by Counterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions.\n(a) From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will not, nor will it permit any of its\nAffiliates to, without the Company’s prior written approval, singly or as part of a group, directly or indirectly, beneficially or otherwise, own (other\nthan the shares of Company common stock owned of record as of the date hereof by Counterparty or any of its affiliated funds), acquire or propose\nto acquire, by purchase, exchange, conversion or otherwise, any of the securities of the Company or material assets of the Company or any interest in\nany indebtedness of the Company or any rights or options to acquire, or that are otherwise related to or have a value derived from, any such\nsecurities or any such material assets or any such interests.\n(b) Until the Restriction Period expires, unless specifically invited in writing by the Company, Counterparty agrees that it will not, nor\nwill it permit any of its Affiliates to, make any public announcement with respect to (i) any form of merger, tender or exchange offer, consolidation,\nbusiness combination, change of control or other similar transaction with respect to the Company, (ii) any request to amend, waive or terminate the\nprovisions of this Agreement, or (iii) any proposal or other statement inconsistent with the terms of this Agreement.\n4\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company’s\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\n5\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99¢ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307 -9611\nwith a copy to:\nMunger, Tolles & Olson, LLP\n355 South Grand Avenue\nLos Angeles, CA 90071\nAttention: Mary Ann Todd\nFax: (213) 683-4020\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd, Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L .P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n6\nSection 4.8 . Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of\nthe State of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9 . No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\n7\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n99¢ Only Stores\nBy: /S/ RUSSELL WOLPERT\nIts: Chief Legal Officer\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.\nBy: /S/ KEITH P. COLLINS\nIts: Associate\n8
ff2f9c3d7198b961852b39b2b3969255.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm INDEMNIFICATION AGREEMENT AND CONFIDENTIALITY AGREEMENT WITH\nDAVID FREEMAN\nExhibit 10.1\nEXHIBIT B\nINDEMNIFICATION AGREEMENT\nThis Agreement, made and entered into (“Agreement”), by and between Lydall, Inc., a Delaware corporation (“Company”), and David\nFreeman (“Indemnitee”):\nWHEREAS, highly competent persons are becoming more reluctant to serve publicly-held corporations as directors or in other capacities\nunless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions\nagainst them arising out of their service to and activities on behalf of the corporation; and\nWHEREAS, the current impracticability of obtaining adequate insurance and the uncertainties relating to indemnification have increased the\ndifficulty of attracting and retaining such persons;\nWHEREAS, the Board of Directors of the Company has determined that the inability to attract and retain such persons is detrimental to the\nbest interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such\nprotection in the future; and\nWHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify such persons to the fullest\nextent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so\nindemnified; and\nWHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the\ncondition that he be so indemnified;\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant\nand agree as follows:\nSection 1. Services by Indemnitee. Indemnitee agrees to serve (as a director, officer, employee, agent of the Company) (at the request of\nthe Company, as a director, officer, employee, agent, fiduciary of another corporation, partnership, joint venture, trust employee benefit plan or other\nenterprise. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation\nimposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position.\n1\nSection 2. Indemnification - General. The Company shall indemnify, and advance Expenses (as hereinafter defined) to, Indemnitee (a) as\nprovided in this Agreement and (b) to the fullest extent permitted by applicable law in effect on the date hereof and as amended from time to time.\nThe rights of Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the other Sections of\nthis Agreement.\nSection 3. Proceedings Other than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of\nindemnification provided in this Section 3 if, by reason of his Corporate Status (as hereinafter defined), he is, or is threatened to be made, a party to\nany threatened, pending, or completed Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company. Pursuant to\nthis Section 3, Indemnitee shall be indemnified against all expenses, judgements, penalties, fines, and amounts paid in settlement actually and\nreasonably incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if he acted in good faith and in\na manner be reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had no\nreasonable cause to believe his conduct was unlawful.\nSection 4. Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this\nSection 4 if, by reason of his Corporate Status, he is, or is threatened to be made, a party to any threatened, pending or completed Proceeding\nbrought by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section, Indemnitee shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding if he acted in good faith and in a manner he\nreasonably believed to be in or not opposed to the best interests of the Company; provided, however, that if applicable law so provides, no\nindemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have\nbeen adjudged to be liable to the Company unless and to the extent that the Court of Chancery of the State of Delaware, or the court in which such\nProceeding shall have been brought or is pending, shall determine that such indemnification may be made.\nSection 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this\nAgreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any\nProceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If\nIndemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues\nor matters in such Proceeding, the Company shall indemnify Indemnitee against all expenses actually and reasonably incurred by him or on his\nbehalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of\nany claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim,\nissue or matter.\nSection 6. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that\nIndemnitee is, by reason of his Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection therewith.\n2\nSection 7. Advancement of Expenses. The Company shall advance all reasonable Expenses incurred by or on behalf of Indemnitee in\nconnection with any Proceeding within ten days after the receipt by the Company of a statement or statements from Indemnitee requesting such\nadvance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably\nevidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to\nrepay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses.\nSection 8. Procedures for Determination of Entitlement to Indemnification.\n(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein\nor therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to\nwhat extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for\nindemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification.\n(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination,\nif required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case; (i)if a Change in Control (as\nhereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a written opinion to the Board of Directors, a copy of which\nshall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum\nconsisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not\nobtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of\nDirectors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and,\nif it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such\ndetermination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to\nindemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is\nnot privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such\ndetermination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with this person,\npersons or entity making such determination shall be borne by the Company (Irrespective of the determination as to Indemnitee’s entitlement to\nindemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.\n3\n(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to\nSection 8(b) hereof, the Independent Counsel shall be selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the\nIndependent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising him of the\nidentity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee\n(unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and\nIndemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or\nthe Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or to\nIndemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that\nthe Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 17 of this Agreement, and the\nobjection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent\nCounsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such\nobjection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof,\nno Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Court of Chancery of the\nState of Delaware or other court of competent jurisdiction for resolution of any objection which shall have been made the Company or Indemnitee to\nthe other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other\nperson as the Court shall designate, and the person with respect to whom all objections are so resolved or the person so appreciated shall act as\nIndependent Counsel under Section 8(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred\nby such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses\nincident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due\ncommencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, Independent Counsel shall be discharged\nand relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).\nSection 9. Presumptions and Effect of Certain Proceedings.\n(a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification\nhereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this\nAgreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall\nhave the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary\nto that presumption.\n4\n(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement of conviction, or\nupon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the\nright of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably\nbelieved to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable\ncause to believe that his conduct was unlawful.\nSection 10. Remedies of Indemnitee.\n(a) In the event that (i) a determination is made pursuant to Section 8 of this Agreement that Indemnitee is not entitled to\nindemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 7 of this Agreement, (iii) no\ndetermination of entitlement to indemnification shall have been made pursuant to Section 8(b) of this Agreement within 90 days after receipt by the\nCompany of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6 of this Agreement within ten\n(10) days after receipt by the Company of a written request therefor, or (v) payment of indemnification is not made within 10 (10) days after a\ndetermination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication in an appropriate court of\nthe State of Delaware, or in any other court of competent jurisdiction, of his entitlement to such indemnification or advancement of Expenses.\nAlternatively, Indemnitee, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial\nArbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in\narbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 10(a);\nprovided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his rights under Section 5 of\nthis Agreement.\n(b) In the event that a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is not\nentitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 10 shall be conducted in all respects as a de\nnovo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. If a Change of Control shall\nhave occurred, in any judicial proceeding or arbitration commenced pursuant to this Section 10 the Company shall have the burden of proving that\nIndemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.\n(c) If a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is entitled to\nindemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this\nSection 10, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement\nnot materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.\n5\n(d) In the event that Indemnitee, pursuant to this Section 10, seeks a judicial adjudication of or an award in arbitration to enforce\nhis rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be\nindemnified by the Company against, any and all expenses (of the types described in the definition of Expenses in Section 17 of this Agreement)\nactually and reasonably incurred by him in such judicial adjudication or arbitration, but only if he prevails therein. If it shall be determined in said\njudicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advancement of expenses sought,\nthe expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately prorated.\nSection 11. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.\n(a) The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed\nexclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the By-Laws,\nany agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any\nprovision hereof shall limit or restrict any right of Indemnitee in his Corporate Status prior to such amendment, alteration or repeal.\n(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers,\nemployees, or agents of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which\nsuch person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the\nmaximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies.\n(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of\nthe rights of recovery of Indemnities, who shall execute all papers required and take all action necessary to secure such rights, including execution of\nsuch documents as are necessary to enable the Company to bring suit to enforce such rights.\n(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if\nand to the extent that Indemnities has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.\nSection 12. Duration of Agreement. This Agreement shall continue until and terminate upon the later of: (a)10 years after the date that\nIndemnitee shall have ceased to serve as a director, officer, employee, or agent of the Company or of any other corporation, partnership, joint\nventure, trust, employee benefit plan or other enterprise which Indemnitee served at the request of the Company; or (b) the final termination of any\nProceeding then pending in respect of\n6\nwhich Indemnitee is granted rights of indemnification or advancement of expenses hereunder and of any proceeding commenced by Indemnitee\npursuant to Section 10 of this Agreement relating thereto. This Agreement shall be binding upon the Company and its successors and assigns and\nshall inure to the benefit of Indemnitee and his heirs, executors and administrators.\nSection 13. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any\nreason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each\nportion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or\nunenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement\n(including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or\nunenforceable, that is not itself invalid, illegal or unenforceable) shall be construed to as to give effect to the intent manifested thereby.\nSection 14. Exception to Right of Indemnification or Advancement of Expenses. Notwithstanding any other provision of this Agreement,\nIndemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to any Proceeding brought by\nIndemnitee, or any claim therein prior to a Change in Control, unless the bringing of such Proceeding or making of such claim shall have been\napproved by the Board of Directors.\nSection 15. Identical Counterparts. This agreement may be executed in one or more counterparts, each of which shall for all purposes be\ndeemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party\nagainst whom enforceability is sought needs to be produced to evidence the existence of this Agreement.\nSection 16. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to\nconstitute part of this Agreement or to affect the construction thereof.\nSection 17. Definitions. (a) The phrase “Change of Control,” as used in this Agreement, shall mean i) an acquisition of the Company by\nmeans of a merger or consolidation or purchase of substantially all of its assets if and when incident thereto (A) the composition of the Board of\nDirectors of the Company (the “Board”) or its successor changes so that a majority of the Board is not comprised of individuals who were members\nof the board immediately prior to such merger, consolidation or purchase of assets or (B) the stockholders of the Company acquire a right to receive,\nin exchange for or upon surrender a majority of their stock, cash or other securities or a combination of the two; and/or ii) the acquisition by a person\n(as that term is hereafter defined) of the voting rights with respect to 25 percent or more of the outstanding Common Stock of the Company if such\nperson was not an officer or director of the Company on the date of this Agreement; and/or iii) the election or appointment to the Board of any\ndirector or directors whose appointment or election or nomination for election was not approved by a vote of at least a majority of the directors then\nstill in office who were either directors on the date hereof or whose election, appointment or nomination for election was previously so approved.\n7\n(b) “Corporate Status” describes the status of a person who is or was a director, officer, employee or agent of the Company or of\nany other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person is or was serving at the request\nof the Company.\n(c) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of\nwhich indemnification is sought by Indemnitee.\n(d) “Effective Date” means January 10, 2007.\n(e) “Expenses” shall include all reasonable attorney’s fees, retainers, court costs, transcript costs, fees of experts, witness fees,\ntravel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or\nexpenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or\npreparing to be a witness in a Proceeding.\n(f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and\nneither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such\nparty, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term\n“Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a\nconflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.\n(g) “Proceeding” includes any action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative\nhearing or any other proceeding, whether civil, criminal, administrative, or investigative, except one (i) initiated by an Indemnitee pursuant to\nSection 10 of this Agreement to enforce his rights under this Agreement or (ii) pending on or before the Effective Date.\nSection 18. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in\nwriting by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other\nprovisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.\nSection 19. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons,\ncitation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to\nindemnification or advancement of Expenses covered hereunder.\n8\nSection 20. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have\nbeen duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or\n(ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed:\n(a) If to Indemnitee, to:\nDavid Freeman\nxxxxx\nxxxxx\n(b) If to the Company to:\nMary Tremblay\nVice President, General Counsel and Secretary\nLydall, Inc.\nP.O . Box 151\nOne Colonial Road\nManchester, CT 06045-0151\nor to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.\nSection 21. Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with,\nthe laws of the State of Delaware.\nSection 22. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written.\nATTEST:\nLYDALL, INC.,\nBy /s/ Mary A. Tremblay\nBy /s/ W. Leslie Duffy, Esq.\n9\nINDEMNITEE\n/s/ David Freeman\nDavid Freeman\nxxxxxxxxx\nxxxxxxxxx\n10\nConfidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the “Company”), the\ncompensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term “Confidential Information” as used in this Agreement includes all business information and records which relate to the Company or to\nparties working with the Company under a confidentiality agreement, and which are not known to the public generally, including, but not limited to,\ntechnical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs\nincluding any drawings and descriptions, unwritten knowledge and “know-how”, operating instructions, training manuals, production and\ndevelopment processes, production or other schedules, customer lists, customer buying records, product sales records, sales requests, territory\nlistings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy\nstatements, policy procedures, policy manuals, flowcharts, computer printouts, program listings, reproductions and correspondence.\nThe term “Invention” as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which\nrelates to any activity or business in which the Company is engaged or any process, equipment, material, product or method (including computer\nsoftware) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while\nI am an employee, whether or not such conception, development or perfection occurs during the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the\nCompany, together with all U.S . and foreign patents, trademarks or copyrights that may at any time be granted, and all reissues, renewals and\nextensions of such patents, trademarks or copyrights. At the request and expense of the Company, I will at any time do what the Company\nreasonably believes to be necessary to assist the Company to vest full right and title to each such Invention in the Company, enable the Company to\nobtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and extension),\ntrademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may\nbe declared involving any such application or patent and any litigation in which the Company may be involved concerning any such Invention. This\nwill include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section\nwill continue after I stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by the\nCompany.\n11\n3. Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any\ntrade secret or confidential information belonging to a former employer or other person and which has been classified by the former employer or\nother person as a trade secret or confidential information. The limitation set forth in this section shall not apply to matters which (a) are or become\npublic knowledge, (b) were previously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are\nindependently derived by the Company.\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to\nothers, any Confidential Information, no matter how such information becomes known to me, unless I first obtain the Company’s written consent.\nWhen I leave the Company’s employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and\nrecords, including but not limited to those listed under the definition of Confidential Information, which are in my possession or under my control\nand which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not\nretain or deliver to any others copies of these documents or records.\n4. Non-Competition\nI acknowledge and agree that the Company’s business competes upon a worldwide basis, and that the degree of competition in that business is high. I\nrecognize that the Company may assign me to duties in a geographic area or specific market. I agree that, unless I first obtain the Company’s written\nconsent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment\n(provided, however, that if I am employed by the Company for less than two (2) years, the post-employment period to which this section applies shall\nbe the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others, individually, or as a\nmember, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the\noutstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or\nhave any material financial interest in, any business competitive with the Company in (a) any market in which the company for which I have\nworked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the\nCompany has assigned me to duties in a geographic area, within two hundred fifty (250) miles of any such geographic area in which I have\nworked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the\nCompany to terminate any written or oral agreement, order or understanding with the Company or to conduct business in a way that results in\nan adverse impact to the Company.\nI further understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section\nwould be inadequate and that any breach or attempted breach would result in irreparable damage to the Company, the monetary amount of which\nwould be impossible to ascertain. Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to\nall other available legal or equitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened\nbreach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney fees, incurred in remedying\nsuch breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this\nAgreement.\nIn consideration of my employment, I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period\nand can be terminated at any time, with or without cause or prior notice by either the Company or me, and will remain so unless a written agreement\nfor a specific term is entered into and executed by me and the Company’s CEO or CFO. No other representations or agreements have been made\nregarding the term or termination of my employment. I understand that no employee of the Company other than its CEO or CFO has the authority to\nenter into any agreement, commitment or guarantees binding on the Company regarding my employment and then only by a signed, written\ndocument.\nThis Agreement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of\nmy agreement with the Company with respect to its subject matter, (b) shall be binding upon my heirs, executors and administrators, (c) shall be\nassignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by\nand construed in accordance with the law of the State of Connecticut, the Company ‘s home office state, and (f) if any part of this Agreement is\nfound invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman\n(Employee Signature)\n/s/ Rae Holmes\n(Witness to Signature)\nDavid Freeman\n(Employee printed name)\n7/2/03\n(Date)\n13\nLydall, Inc.\nBy: /s/ Roger M. Widmann\nName: Roger M. Widmann\nTitle: Chairman\n14	EX-10.1 2 dex101.htm INDEMNIFICATION AGREEMENT AND CONFIDENTIALITY AGREEMENT WITH\nDAVID FREEMAN\nExhibit 10.1\nEXHIBIT B\nINDEMNIFICATION AGREEMENT\nThis Agreement, made and entered into (“Agreement”), by and between Lydall, Inc., a Delaware corporation (“Company”), and David\nFreeman (“Indemnitee™):\nWHEREAS, highly competent persons are becoming more reluctant to serve publicly-held corporations as directors or in other capacities\nunless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions\nagainst them arising out of their service to and activities on behalf of the corporation; and\nWHEREAS, the current impracticability of obtaining adequate insurance and the uncertainties relating to indemnification have increased the\ndifficulty of attracting and retaining such persons;\nWHEREAS, the Board of Directors of the Company has determined that the inability to attract and retain such persons is detrimental to the\nbest interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such\nprotection in the future; and\nWHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify such persons to the fullest\nextent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so\nindemnified; and\nWHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the\ncondition that he be so indemnified;\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant\nand agree as follows:\nSection 1. Services by Indemnitee. Indemnitee agrees to serve (as a director, officer, employee, agent of the Company) (at the request of\nthe Company, as a director, officer, employee, agent, fiduciary of another corporation, partnership, joint venture, trust employee benefit plan or other\nenterprise. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation\nimposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position.\n1\nSection 2. Indemnification - General. The Company shall indemnify, and advance Expenses (as hereinafter defined) to, Indemnitee (a) as\nprovided in this Agreement and (b) to the fullest extent permitted by applicable law in effect on the date hereof and as amended from time to time.\nThe rights of Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the other Sections of\nthis Agreement.\nindemnification provided in this Section 3 if, by reason of his Corporate Status (as hereinafter defined), he is, or is threatened to be made, a party to\nany threatened, pending, or completed Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company. Pursuant to\nthis Section 3, Indemnitee shall be indemnified against all expenses, judgements, penalties, fines, and amounts paid in settlement actually and\nreasonably incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if he acted in good faith and in\na manner be reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had no\nreasonable cause to believe his conduct was unlawful.\nSection 4. Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this\nSection 4 if, by reason of his Corporate Status, he is, or is threatened to be made, a party to any threatened, pending or completed Proceeding\nbrought by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section, Indemnitee shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding if he acted in good faith and in a manner he\nreasonably believed to be in or not opposed to the best interests of the Company; provided, however, that if applicable law so provides, no\nindemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have\nbeen adjudged to be liable to the Company unless and to the extent that the Court of Chancery of the State of Delaware, or the court in which such\nProceeding shall have been brought or is pending, shall determine that such indemnification may be made.\nAgreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any\nProceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If\nIndemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues\nor matters in such Proceeding, the Company shall indemnify Indemnitee against all expenses actually and reasonably incurred by him or on his\nbehalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of\nany claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim,\nissue or matter.\nSection 6. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that\nIndemnitee is, by reason of his Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection therewith.\n2\nSection 7. Advancement of Expenses. The Company shall advance all reasonable Expenses incurred by or on behalf of Indemnitee in\nconnection with any Proceeding within ten days after the receipt by the Company of a statement or statements from Indemnitee requesting such\nadvance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably\nevidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to\nrepay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses.\nSection 8. Procedures for Determination of Entitlement to Indemnification.\n(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein\nor therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to\nwhat extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for\nindemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification.\n(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination,\nif required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case; (i)if a Change in Control (as\nhereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a written opinion to the Board of Directors, a copy of which\nshall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum\nconsisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not\nobtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of\nDirectors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and,\nif it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such\ndetermination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to\nindemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is\nnot privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such\ndetermination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with this person,\npersons or entity making such determination shall be borne by the Company (Irrespective of the determination as to Indemnitee’s entitlement to\nindemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.\n3\n(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to\nSection 8(b) hereof, the Independent Counsel shall be selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the\nIndependent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising him of the\nidentity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee\n(unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and\nIndemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or\nthe Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or to\nIndemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that\nthe Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 17 of this Agreement, and the\nobjection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent\nCounsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such\nobjection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof,\nno Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Court of Chancery of the\nState of Delaware or other court of competent jurisdiction for resolution of any objection which shall have been made the Company or Indemnitee to\nthe other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other\nperson as the Court shall designate, and the person with respect to whom all objections are so resolved or the person so appreciated shall act as\nIndependent Counsel under Section 8(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred\nby such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses\nincident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due\ncommencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, Independent Counsel shall be discharged\nand relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).\n \n \nSection 9. Presumptions and Effect of Certain Proceedings.\n(a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification\nhereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this\nAgreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall\nhave the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary\nto that presumption.\n(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement of conviction, or\nupon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the\nright of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably\nbelieved to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable\ncause to believe that his conduct was unlawful.\nSection 10. Remedies of Indemnitee.\n(a) In the event that (i) a determination is made pursuant to Section 8 of this Agreement that Indemnitee is not entitled to\nindemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 7 of this Agreement, (iii) no\ndetermination of entitlement to indemnification shall have been made pursuant to Section 8(b) of this Agreement within 90 days after receipt by the\nCompany of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6 of this Agreement within ten\n(10) days after receipt by the Company of a written request therefor, or (v) payment of indemnification is not made within 10 (10) days after a\ndetermination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication in an appropriate court of\nthe State of Delaware, or in any other court of competent jurisdiction, of his entitlement to such indemnification or advancement of Expenses.\nAlternatively, Indemnitee, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial\nArbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in\narbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 10(a);\nprovided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his rights under Section 5 of\nthis Agreement.\n \n(b) In the event that a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is not\nentitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 10 shall be conducted in all respects as a de\nnovo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. If a Change of Control shall\nhave occurred, in any judicial proceeding or arbitration commenced pursuant to this Section 10 the Company shall have the burden of proving that\nIndemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.\n(c) If a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is entitled to\nindemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this\nSection 10, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement\nnot materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.\n5\n(d) In the event that Indemnitee, pursuant to this Section 10, seeks a judicial adjudication of or an award in arbitration to enforce\nhis rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be\nindemnified by the Company against, any and all expenses (of the types described in the definition of Expenses in Section 17 of this Agreement)\nactually and reasonably incurred by him in such judicial adjudication or arbitration, but only if he prevails therein. If it shall be determined in said\njudicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advancement of expenses sought,\nthe expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately prorated.\nSection 11. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.\n(a) The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed\nexclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the By-Laws,\nany agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any\nprovision hereof shall limit or restrict any right of Indemnitee in his Corporate Status prior to such amendment, alteration or repeal.\n(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers,\nemployees, or agents of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which\nsuch person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the\nmaximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies.\n(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of\nthe rights of recovery of Indemnities, who shall execute all papers required and take all action necessary to secure such rights, including execution of\nsuch documents as are necessary to enable the Company to bring suit to enforce such rights.\n(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if\nand to the extent that Indemnities has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.\nSection 12. Duration of Agreement. This Agreement shall continue until and terminate upon the later of: (a)10 years after the date that\nIndemnitee shall have ceased to serve as a director, officer, employee, or agent of the Company or of any other corporation, partnership, joint\nventure, trust, employee benefit plan or other enterprise which Indemnitee served at the request of the Company; or (b) the final termination of any\nProceeding then pending in respect of\nwhich Indemnitee is granted rights of indemnification or advancement of expenses hereunder and of any proceeding commenced by Indemnitee\npursuant to Section 10 of this Agreement relating thereto. This Agreement shall be binding upon the Company and its successors and assigns and\nshall inure to the benefit of Indemnitee and his heirs, executors and administrators.\nSection 13. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any\nreason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each\nportion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or\nunenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement\n(including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or\nunenforceable, that is not itself invalid, illegal or unenforceable) shall be construed to as to give effect to the intent manifested thereby.\nSection 14. Exception to Right of Indemnification or Advancement of Expenses. Notwithstanding any other provision of this Agreement,\nIndemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to any Proceeding brought by\nIndemnitee, or any claim therein prior to a Change in Control, unless the bringing of such Proceeding or making of such claim shall have been\napproved by the Board of Directors.\n \nSection 15. Identical Counterparts. This agreement may be executed in one or more counterparts, each of which shall for all purposes be\ndeemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party\nagainst whom enforceability is sought needs to be produced to evidence the existence of this Agreement.\nSection 16. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to\nconstitute part of this Agreement or to affect the construction thereof.\nSection 17. Definitions. (a) The phrase “Change of Control,” as used in this Agreement, shall mean i) an acquisition of the Company by\nmeans of a merger or consolidation or purchase of substantially all of its assets if and when incident thereto (A) the composition of the Board of\nDirectors of the Company (the “Board”) or its successor changes so that a majority of the Board is not comprised of individuals who were members\nof the board immediately prior to such merger, consolidation or purchase of assets or (B) the stockholders of the Company acquire a right to receive,\nin exchange for or upon surrender a majority of their stock, cash or other securities or a combination of the two; and/or ii) the acquisition by a person\n(as that term is hereafter defined) of the voting rights with respect to 25 percent or more of the outstanding Common Stock of the Company if such\nperson was not an officer or director of the Company on the date of this Agreement; and/or iii) the election or appointment to the Board of any\ndirector or directors whose appointment or election or nomination for election was not approved by a vote of at least a majority of the directors then\nstill in office who were either directors on the date hereof or whose election, appointment or nomination for election was previously so approved.\n7\n(b) “Corporate Status” describes the status of a person who is or was a director, officer, employee or agent of the Company or of\nany other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person is or was serving at the request\nof the Company.\n(c) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of\nwhich indemnification is sought by Indemnitee.\n(d) “Effective Date” means January 10, 2007.\n(e) “Expenses” shall include all reasonable attorney’s fees, retainers, court costs, transcript costs, fees of experts, witness fees,\ntravel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or\nexpenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or\npreparing to be a witness in a Proceeding.\n(f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and\nneither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such\nparty, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term\n“Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a\nconflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.\n(g) “Proceeding” includes any action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative\nhearing or any other proceeding, whether civil, criminal, administrative, or investigative, except one (i) initiated by an Indemnitee pursuant to\nSection 10 of this Agreement to enforce his rights under this Agreement or (ii) pending on or before the Effective Date.\nSection 18. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in\nwriting by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other\nprovisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.\nSection 19. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons,\ncitation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to\nindemnification or advancement of Expenses covered hereunder.\nSection 20. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have\nbeen duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or\n(ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed:\n \n(a) If to Indemnitee, to:\nDavid Freeman\nXXXXX\nXXXXX\n(b) If to the Company to:\nMary Tremblay\nVice President, General Counsel and Secretary\nLydall, Inc.\nP.O. Box 151\nOne Colonial Road\nManchester, CT 06045-0151\nor to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.\nSection 21. Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with,\nthe laws of the State of Delaware.\nSection 22. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written.\nATTEST: LYDALL, INC.,,\nBy /s/ Mary A. Tremblay By  /s/ W. Leslie Duffy, Esq.\n10\n \nINDEMNITEE\n/s/ David Freeman\nDavid Freeman\nXXXXXXXXX\nXXXXXXXXX\nConfidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the “Company”), the\ncompensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term “Confidential Information” as used in this Agreement includes all business information and records which relate to the Company or to\nparties working with the Company under a confidentiality agreement, and which are not known to the public generally, including, but not limited to,\ntechnical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs\nincluding any drawings and descriptions, unwritten knowledge and “know-how”, operating instructions, training manuals, production and\ndevelopment processes, production or other schedules, customer lists, customer buying records, product sales records, sales requests, territory\nlistings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy\nstatements, policy procedures, policy manuals, flowcharts, computer printouts, program listings, reproductions and correspondence.\nThe term “Invention” as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which\nrelates to any activity or business in which the Company is engaged or any process, equipment, material, product or method (including computer\nsoftware) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while\nI am an employee, whether or not such conception, development or perfection occurs during the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the\nCompany, together with all U.S. and foreign patents, trademarks or copyrights that may at any time be granted, and all reissues, renewals and\nextensions of such patents, trademarks or copyrights. At the request and expense of the Company, I will at any time do what the Company\nreasonably believes to be necessary to assist the Company to vest full right and title to each such Invention in the Company, enable the Company to\nobtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and extension),\ntrademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may\nbe declared involving any such application or patent and any litigation in which the Company may be involved concerning any such Invention. This\nwill include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section\nwill continue after I stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by the\nCompany.\n11\n3. Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any\ntrade secret or confidential information belonging to a former employer or other person and which has been classified by the former employer or\nother person as a trade secret or confidential information. The limitation set forth in this section shall not apply to matters which (a) are or become\npublic knowledge, (b) were previously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are\nindependently derived by the Company.\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to\nothers, any Confidential Information, no matter how such information becomes known to me, unless I first obtain the Company’s written consent.\nWhen I leave the Company’s employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and\nrecords, including but not limited to those listed under the definition of Confidential Information, which are in my possession or under my control\nand which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not\nretain or deliver to any others copies of these documents or records.\n4. Non-Competition\nI acknowledge and agree that the Company’s business competes upon a worldwide basis, and that the degree of competition in that business is high. I\nrecognize that the Company may assign me to duties in a geographic area or specific market. I agree that, unless I first obtain the Company’s written\nconsent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment\n(provided, however, that if I am employed by the Company for less than two (2) years, the post-employment period to which this section applies shall\nbe the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others, individually, or as a\nmember, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the\noutstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or\nhave any material financial interest in, any business competitive with the Company in (a) any market in which the company for which I have\nworked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the\nCompany has assigned me to duties in a geographic area, within two hundred fifty (250) miles of any such geographic area in which I have\nworked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the\nCompany to terminate any written or oral agreement, order or understanding with the Company or to conduct business in a way that results in\nan adverse impact to the Company.\nI further understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section\nwould be inadequate and that any breach or attempted breach would result in irreparable damage to the Company, the monetary amount of which\nwould be impossible to ascertain. Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to\nall other available legal or equitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened\nbreach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney fees, incurred in remedying\nsuch breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this\nAgreement.\nIn consideration of my employment, I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period\nand can be terminated at any time, with or without cause or prior notice by either the Company or me, and will remain so unless a written agreement\nfor a specific term is entered into and executed by me and the Company’s CEO or CFO. No other representations or agreements have been made\nregarding the term or termination of my employment. I understand that no employee of the Company other than its CEO or CFO has the authority to\nenter into any agreement, commitment or guarantees binding on the Company regarding my employment and then only by a signed, written\ndocument.\nThis Agreement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of\nmy agreement with the Company with respect to its subject matter, (b) shall be binding upon my heirs, executors and administrators, (c) shall be\nassignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by\nand construed in accordance with the law of the State of Connecticut, the Company ‘s home office state, and (f) if any part of this Agreement is\nfound invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman (Employee Signature) /s/ Rae Holmes (Witness to Signature)\nDavid Freeman (Employee printed name) 7/2/03 (Date)\n13\n \nLydall, Inc.\nBy: /s/ Roger M. Widmann\nName: Roger M. Widmann\nTitle:  Chairman\n14	EX-10.1 2 dex101.htm INDEMNIFICATION AGREEMENT AND CONFIDENTIALITY AGREEMENT WITH\nDAVID FREEMAN\nExhibit 10.1\nEXHIBIT B\nINDEMNIFICATION AGREEMENT\nThis Agreement, made and entered into ("Agreement"), by and between Lydall, Inc., a Delaware corporation ("Company"), and David\nFreeman ("Indemnitee"):\nWHEREAS, highly competent persons are becoming more reluctant to serve publicly-held corporations as directors or in other capacities\nunless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions\nagainst them arising out of their service to and activities on behalf of the corporation; and\nWHEREAS, the current impracticability of obtaining adequate insurance and the uncertainties relating to indemnification have increased the\ndifficulty of attracting and retaining such persons;\nWHEREAS, the Board of Directors of the Company has determined that the inability to attract and retain such persons is detrimental to the\nbest interests of the Company's stockholders and that the Company should act to assure such persons that there will be increased certainty of such\nprotection in the future; and\nWHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify such persons to the fullest\nextent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so\nindemnified; and\nWHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the\ncondition that he be so indemnified;\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant\nand agree as follows:\nSection 1. Services by Indemnitee. Indemnitee agrees to serve (as a director, officer, employee, agent of the Company) (at the request of\nthe Company, as a director, officer, employee, agent, fiduciary of another corporation, partnership, joint venture, trust employee benefit plan or other\nenterprise. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation\nimposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position.\n1\nSection 2. Indemnification General. The Company shall indemnify, and advance Expenses (as hereinafter defined) to, Indemnitee (a) as\nprovided in this Agreement and (b) to the fullest extent permitted by applicable law in effect on the date hereof and as amended from time to time.\nThe rights of Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the other Sections of\nthis Agreement.\nSection 3. Proceedings Other than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of\nindemnification provided in this Section 3 if, by reason of his Corporate Status (as hereinafter defined), he is, or is threatened to be made, a party to\nany threatened, pending, or completed Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company. Pursuant to\nthis Section 3, Indemnitee shall be indemnified against all expenses, judgements, penalties, fines, and amounts paid in settlement actually and\nreasonably incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if he acted in good faith and in\na manner be reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had no\nreasonable cause to believe his conduct was unlawful.\nSection 4. Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this\nSection 4 if, by reason of his Corporate Status, he is, or is threatened to be made, a party to any threatened, pending or completed Proceeding\nbrought by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section, Indemnitee shall be indemnified against\nall\nExpenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding if he acted in good faith and in a manner he\nreasonably believed to be in or not opposed to the best interests of the Company; provided, however, that if applicable law so provides, no\nindemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have\nbeen adjudged to be liable to the Company unless and to the extent that the Court of Chancery of the State of Delaware, or the court in which such\nProceeding shall have been brought or is pending, shall determine that such indemnification may be made.\nSection 5. Indemnification for Expenses of a Party Who is Wholly or Partly. Successful. Notwithstanding any other provision of this\nAgreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any\nProceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If\nIndemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues\nor matters in such Proceeding, the Company shall indemnify Indemnitee against all expenses actually and reasonably incurred by him or on his\nbehalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of\nany claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim,\nissue or matter.\nSection 6. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that\nIndemnitee is, by reason of his Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection therewith.\n2\nSection 7. Advancement of Expenses. The Company shall advance all reasonable Expenses incurred by or on behalf of Indemnitee in\nconnection with any Proceeding within ten days after the receipt by the Company of a statement or statements from Indemnitee requesting such\nadvance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably\nevidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to\nrepay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses.\nSection 8. Procedures for Determination of Entitlement to Indemnification.\n(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein\nor therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to\nwhat extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for\nindemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification.\n(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination,\nif required by applicable law, with respect to Indemnitee's entitlement thereto shall be made in the specific case; (i)if a Change in Control (as\nhereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a written opinion to the Board of Directors, a copy of which\nshall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum\nconsisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not\nobtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of\nDirectors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and,\nif it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such\ndetermination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to\nindemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which\nis\nnot privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such\ndetermination. Any costs or expenses (including attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with this person,\npersons or entity making such determination shall be borne by the Company (Irrespective of the determination as to Indemnitee's entitlement to\nindemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.\n3\n(c)\nIn the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant\nto\nSection 8(b) hereof, the Independent Counsel shall be selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the\nIndependent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising him of the\nidentity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee\n(unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and\nIndemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee\nor\nthe Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or to\nIndemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that\nthe Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 17 of this Agreement, and the\nobjection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent\nCounsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such\nobjection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof,\nno Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Court of Chancery of the\nState of Delaware or other court of competent jurisdiction for resolution of any objection which shall have been made the Company or Indemnitee to\nthe other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other\nperson as the Court shall designate, and the person with respect to whom all objections are so resolved or the person so appreciated shall act as\nIndependent Counsel under Section 8(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred\nby such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses\nincident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due\ncommencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, Independent Counsel shall be discharged\nand relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).\nSection 9. Presumptions and Effect of Certain Proceedings.\n(a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification\nhereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this\nAgreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall\nhave the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary\nto that presumption.\n4\n(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement of conviction\nor\nupon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the\nright of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably\nbelieved to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable\ncause to believe that his conduct was unlawful.\nSection 10. Remedies of Indemnitee\n(a) In the event that (i) a determination is made pursuant to Section 8 of this Agreement that Indemnitee is not entitled to\nindemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 7 of this Agreement, (iii) no\ndetermination of entitlement to indemnification shall have been made pursuant to Section 8(b) of this Agreement within 90 days after receipt by the\nCompany of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6 of this Agreement within ten\ndetermination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication in an appropriate court\n(10) days after receipt by the Company of a written request therefor, or (v) payment of indemnification is not made within 10 (10) days after a of\nthe State of Delaware, or in any other court of competent jurisdiction, of his entitlement to such indemnification or advancement of Expenses.\nAlternatively, Indemnitee, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial\nArbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in\narbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 10(a);\nprovided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his rights under Section 5 of\nthis Agreement.\n(b) In the event that a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is not\nentitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 10 shall be conducted in all respects as a de\nnovo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. If a Change of Control shall\nhave occurred, in any judicial proceeding or arbitration commenced pursuant to this Section 10 the Company shall have the burden of proving that\nIndemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.\n(c) If a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is entitled to\nindemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this\nSection 10, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement\nnot materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.\n5\n(d) In the event that Indemnitee, pursuant to this Section 10, seeks a judicial adjudication of or an award in arbitration to enforce\nhis rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be\nindemnified by the Company against, any and all expenses (of the types described in the definition of Expenses in Section 17 of this Agreement)\nactually and reasonably incurred by him in such judicial adjudication or arbitration, but only if he prevails therein. If it shall be determined in said\njudicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advancement of expenses sought,\nthe expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately prorated.\nSection 11. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.\n(a) The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed\nexclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the By-Laws,\nany\nagreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any\nprovision hereof shall limit or restrict any right of Indemnitee in his Corporate Status prior to such amendment, alteration or repeal.\n(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers,\nemployees, or agents of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which\nsuch person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the\nmaximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies.\n(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of\nthe rights of recovery of Indemnities, who shall execute all papers required and take all action necessary to secure such rights, including execution of\nsuch documents as are necessary to enable the Company to bring suit to enforce such rights.\n(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if\nand to the extent that Indemnities has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.\nSection 12. Duration of Agreement. This Agreement shall continue until and terminate upon the later of: (a)1( years after the date that\nIndemnitee shall have ceased to serve as a director, officer, employee, or agent of the Company or of any other corporation, partnership, joint\nventure, trust, employee benefit plan or other enterprise which Indemnitee served at the request of the Company; or (b) the final termination of any\nProceeding then pending in respect of\n6\nwhich Indemnitee is granted rights of indemnification or advancement of expenses hereunder and of any proceeding commenced by Indemnitee\npursuant to Section 10 of this Agreement relating thereto. This Agreement shall be binding upon the Company and its successors and assigns and\nshall inure to the benefit of Indemnitee and his heirs, executors and administrators.\nSection 13. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for\nany\nreason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each\nportion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal\nor\nunenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement\n(including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or\nunenforceable, that is not itself invalid, illegal or unenforceable) shall be construed to as to give effect to the intent manifested thereby.\nSection 14. Exception to Right of Indemnification or Advancement of Expenses. Notwithstanding any other provision of this Agreement,\nIndemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to any Proceeding brought by\nIndemnitee, or any claim therein prior to a Change in Control, unless the bringing of such Proceeding or making of such claim shall have been\napproved by the Board of Directors.\nSection 15. Identical Counterparts. This agreement may be executed in one or more counterparts, each of which shall for all purposes be\ndeemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party\nagainst whom enforceability is sought needs to be produced to evidence the existence of this Agreement.\nSection 16. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to\nconstitute part of this Agreement or to affect the construction thereof.\nSection 17. Definitions. (a) The phrase "Change of Control," as used in this Agreement, shall mean i) an acquisition of the Company by\nmeans of a merger or consolidation or purchase of substantially all of its assets if and when incident thereto (A) the composition of the Board of\nDirectors of the Company (the "Board") or its successor changes so that a majority of the Board is not comprised of individuals who were members\nof\nthe\nboard immediately prior to such merger, consolidation or purchase of assets or (B) the stockholders of the Company acquire a right to receive,\nin exchange for or upon surrender a majority of their stock, cash or other securities or a combination of the two; and/or ii) the acquisition by a person\n(as that term is hereafter defined) of the voting rights with respect to 25 percent or more of the outstanding Common Stock of the Company if such\nperson was not an officer or director of the Company on the date of this Agreement; and/or iii) the election or appointment to the Board of any\ndirector or directors whose appointment or election or nomination for election was not approved by a vote of at least a majority of the directors then\nstill in office who were either directors on the date hereof or whose election, appointment or nomination for election was previously so approved.\n7\n(b) "Corporate Status" describes the status of a person who is or was a director, officer, employee or agent of the Company or of\nany other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person is or was serving at the request\nof the Company.\n(c) "Disinterested Director" means a director of the Company who is not and was not a party to the Proceeding in respect\nof\nwhich indemnification is sought by Indemnitee.\n(d) "Effective Date" means January 10, 2007.\n(e) "Expenses" shall include all reasonable attorney's fees, retainers, court costs, transcript costs, fees of experts, witness fees,\ntravel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or\nexpenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or\npreparing to be a witness in a Proceeding.\n(f) "Independent Counsel" means a law firm, or a member of a law firm, that is experienced in matters of corporation law and\nneither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such\nparty, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term\n"Independent Counsel" shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a\nconflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee's rights under this Agreement.\n(g) "Proceeding" includes any action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative\nhearing or any other proceeding, whether civil, criminal, administrative, or investigative, except one (i) initiated by an Indemnitee pursuant to\nSection 10 of this Agreement to enforce his rights under this Agreement or (ii) pending on or before the Effective Date.\nSection 18. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless\nexecuted\nin\nwriting by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other\nprovisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.\nSection 19. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons,\ncitation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to\nindemnification or advancement of Expenses covered hereunder.\n8\nSection 20. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to\nhave\nbeen duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or\n(ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed:\n(a)\nIf to Indemnitee, to:\nDavid Freeman\nXXXXX\nXXXXX\n(b)\nIf to the Company to:\nMary Tremblay\nVice President, General Counsel and Secretary\nLydall, Inc.\nP.O. Box 151\nOne Colonial Road\nManchester, CT 06045-0151\nor to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.\nSection 21. Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with,\nthe laws of the State of Delaware.\nSection 22. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written.\nATTEST:\nLYDALL, INC.,\nBy /s/ Mary A. Tremblay\nBy\n/s/ W. Leslie Duffy, Esq.\n9\nINDEMNITEE\n/s/ David Freeman\nDavid Freeman\nXXXXXXXXX\nXXXXXXXXX\n10\nConfidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the "Company"), the\ncompensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term "Confidential Information" as used in this Agreement includes all business information and records which relate to the Company or to\nparties\nworking\nwith\nthe\nCompany\nunder\na\nconfidentiality\nagreement,\nand\nwhich\nare\nnot\nknown\nto\nthe\npublic\ngenerally,\nincluding,\nbut\nnot\nlimited\nto,\ntechnical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs\nincluding any drawings and descriptions, unwritten knowledge and "know-how", operating instructions, training manuals, production and\ndevelopment processes, production or other schedules, customer lists, customer buying records, product sales records, sales requests, territory\nlistings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy\nstatements, policy procedures, policy manuals, flowcharts, computer printouts, program listings, reproductions and correspondence.\nThe term "Invention" as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which\nrelates to any activity or business in which the Company is engaged or any process, equipment, material, product or method (including computer\nsoftware) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while\nI am an employee, whether or not such conception, development or perfection occurs during the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the\nCompany, together with all U.S. and foreign patents, trademarks or copyrights that may at any time be granted, and all reissues, renewals and\nextensions of such patents, trademarks or copyrights. At the request and expense of the Company, I will at any time do what the Company\nreasonably believes to be necessary to assist the Company to vest full right and title to each such Invention in the Company, enable the Company to\nobtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and extension),\ntrademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may\nbe\ndeclared involving any such application or patent and any litigation in which the Company may be involved concerning any such Invention. This\nwill include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section\nwill continue after I stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by\nthe\nCompany.\n11\n3. Confidential Information\nI\nhave not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any\ntrade secret or confidential information belonging to a former employer or other person and which has been classified by the former employer or\nother person as a trade secret or confidentia information. The limitation set forth in this section shall not apply to matters which (a) are or become\npublic knowledge, (b) were previously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are\nindependently derived by the Company\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to\nothers, any Confidential Information, no matter how such information becomes known to me, unless I first obtain the Company's written consent.\nWhen I leave the Company's employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents\nand\nrecords, including but not limited to those listed under the definition of Confidential Information, which are in my possession or under my control\nand which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not\nretain or deliver to any others copies of these documents or records.\n4. Non-Competition\nI\nacknowledge and agree that the Company's business competes upon a worldwide basis, and that the degree of competition in that business is high. I\nrecognize that the Company may assign me to duties in a geographic area or specific market. I agree that, unless I first obtain the Company's written\nconsent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment\n(provided, however, that if I am employed by the Company for less than two (2) years, the post-employment period to which this section applies shall\nbe the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others, individually, or as a\nmember, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the\noutstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or\nhave\nany material financial interest in, any business competitive with the Company in (a) any market in which the company for which I have\nworked in the two (2) preceding years has sold or attempted to sel any of its product in the two (2) years preceding my termination or (b) if the\nCompany has assigned me to duties in a geographic area, within two hundred fifty (250) miles of any such geographic area in which I have\nworked in the two (2) years preceding my termination,\n12\n(ii)\ninduce or encourage any employee of the Company to terminate his or her employment with the Company,\nor\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the\nCompany to terminate any written or oral agreement, order or understanding with the Company or to conduct business in a way that results in\nan adverse impact to the Company.\nI\nfurther understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section\nwould be inadequate and that any breach or attempted breach would result in irreparable damage to the Company, the monetary amount of which\nwould be impossible to ascertain. Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to\nall other available legal or equitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened\nbreach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney fees, incurred in remedying\nsuch breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this\nAgreement.\nIn consideration of my employment, I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period\nand can be terminated at any time, with or without cause or prior notice by either the Company or me, and will remain so unless a written agreement\nfor a specific term is entered into and executed by me and the Company's CEO or CFO. No other representations or agreements have been made\nregarding the term or termination of my employment. I understand that no employee of the Company other than its CEO or CFO has the authority\nto\nenter into any agreement, commitment or guarantees binding on the Company regarding my employment and then only by a signed, written\ndocument.\nThis Agreement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of\nmy agreement with the Company with respect to its subject matter, (b) shall be binding upon my heirs, executors and administrators, (c) shall be\nassignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by\nand construed in accordance with the law of the State of Connecticut, the Company 's home office state, and (f) if any part of this Agreement\nis\nfound invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman\n(Employee Signature)\n/s/ Rae Holmes\n(Witness to Signature)\nDavid Freeman\n(Employee printed name)\n7/2/03\n(Date)\n13\nLydall, Inc.\nBy:\n/s/ Roger M. Widmann\nName: Roger M. Widmann\nTitle: Chairman\n14	EX-10.1 2 dex101.htm INDEMNIFICATION AGREEMENT AND CONFIDENTIALITY AGREEMENT WITH\nDAVID FREEMAN\nExhibit 10.1\nEXHIBIT B\nINDEMNIFICATION AGREEMENT\nThis Agreement, made and entered into (“Agreement”), by and between Lydall, Inc., a Delaware corporation (“Company”), and David\nFreeman (“Indemnitee”):\nWHEREAS, highly competent persons are becoming more reluctant to serve publicly-held corporations as directors or in other capacities\nunless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions\nagainst them arising out of their service to and activities on behalf of the corporation; and\nWHEREAS, the current impracticability of obtaining adequate insurance and the uncertainties relating to indemnification have increased the\ndifficulty of attracting and retaining such persons;\nWHEREAS, the Board of Directors of the Company has determined that the inability to attract and retain such persons is detrimental to the\nbest interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such\nprotection in the future; and\nWHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify such persons to the fullest\nextent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so\nindemnified; and\nWHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the\ncondition that he be so indemnified;\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant\nand agree as follows:\nSection 1. Services by Indemnitee. Indemnitee agrees to serve (as a director, officer, employee, agent of the Company) (at the request of\nthe Company, as a director, officer, employee, agent, fiduciary of another corporation, partnership, joint venture, trust employee benefit plan or other\nenterprise. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation\nimposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position.\n1\nSection 2. Indemnification - General. The Company shall indemnify, and advance Expenses (as hereinafter defined) to, Indemnitee (a) as\nprovided in this Agreement and (b) to the fullest extent permitted by applicable law in effect on the date hereof and as amended from time to time.\nThe rights of Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the other Sections of\nthis Agreement.\nSection 3. Proceedings Other than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of\nindemnification provided in this Section 3 if, by reason of his Corporate Status (as hereinafter defined), he is, or is threatened to be made, a party to\nany threatened, pending, or completed Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company. Pursuant to\nthis Section 3, Indemnitee shall be indemnified against all expenses, judgements, penalties, fines, and amounts paid in settlement actually and\nreasonably incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if he acted in good faith and in\na manner be reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had no\nreasonable cause to believe his conduct was unlawful.\nSection 4. Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this\nSection 4 if, by reason of his Corporate Status, he is, or is threatened to be made, a party to any threatened, pending or completed Proceeding\nbrought by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section, Indemnitee shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding if he acted in good faith and in a manner he\nreasonably believed to be in or not opposed to the best interests of the Company; provided, however, that if applicable law so provides, no\nindemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have\nbeen adjudged to be liable to the Company unless and to the extent that the Court of Chancery of the State of Delaware, or the court in which such\nProceeding shall have been brought or is pending, shall determine that such indemnification may be made.\nSection 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this\nAgreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any\nProceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If\nIndemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues\nor matters in such Proceeding, the Company shall indemnify Indemnitee against all expenses actually and reasonably incurred by him or on his\nbehalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of\nany claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim,\nissue or matter.\nSection 6. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that\nIndemnitee is, by reason of his Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection therewith.\n2\nSection 7. Advancement of Expenses. The Company shall advance all reasonable Expenses incurred by or on behalf of Indemnitee in\nconnection with any Proceeding within ten days after the receipt by the Company of a statement or statements from Indemnitee requesting such\nadvance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably\nevidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to\nrepay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses.\nSection 8. Procedures for Determination of Entitlement to Indemnification.\n(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein\nor therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to\nwhat extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for\nindemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification.\n(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination,\nif required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case; (i)if a Change in Control (as\nhereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a written opinion to the Board of Directors, a copy of which\nshall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum\nconsisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not\nobtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of\nDirectors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and,\nif it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such\ndetermination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to\nindemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is\nnot privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such\ndetermination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with this person,\npersons or entity making such determination shall be borne by the Company (Irrespective of the determination as to Indemnitee’s entitlement to\nindemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.\n3\n(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to\nSection 8(b) hereof, the Independent Counsel shall be selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the\nIndependent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising him of the\nidentity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee\n(unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and\nIndemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or\nthe Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or to\nIndemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that\nthe Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 17 of this Agreement, and the\nobjection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent\nCounsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such\nobjection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof,\nno Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Court of Chancery of the\nState of Delaware or other court of competent jurisdiction for resolution of any objection which shall have been made the Company or Indemnitee to\nthe other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other\nperson as the Court shall designate, and the person with respect to whom all objections are so resolved or the person so appreciated shall act as\nIndependent Counsel under Section 8(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred\nby such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses\nincident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due\ncommencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, Independent Counsel shall be discharged\nand relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).\nSection 9. Presumptions and Effect of Certain Proceedings.\n(a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification\nhereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this\nAgreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall\nhave the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary\nto that presumption.\n4\n(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement of conviction, or\nupon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the\nright of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably\nbelieved to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable\ncause to believe that his conduct was unlawful.\nSection 10. Remedies of Indemnitee.\n(a) In the event that (i) a determination is made pursuant to Section 8 of this Agreement that Indemnitee is not entitled to\nindemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 7 of this Agreement, (iii) no\ndetermination of entitlement to indemnification shall have been made pursuant to Section 8(b) of this Agreement within 90 days after receipt by the\nCompany of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6 of this Agreement within ten\n(10) days after receipt by the Company of a written request therefor, or (v) payment of indemnification is not made within 10 (10) days after a\ndetermination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication in an appropriate court of\nthe State of Delaware, or in any other court of competent jurisdiction, of his entitlement to such indemnification or advancement of Expenses.\nAlternatively, Indemnitee, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial\nArbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in\narbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 10(a);\nprovided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his rights under Section 5 of\nthis Agreement.\n(b) In the event that a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is not\nentitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 10 shall be conducted in all respects as a de\nnovo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. If a Change of Control shall\nhave occurred, in any judicial proceeding or arbitration commenced pursuant to this Section 10 the Company shall have the burden of proving that\nIndemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.\n(c) If a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is entitled to\nindemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this\nSection 10, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement\nnot materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.\n5\n(d) In the event that Indemnitee, pursuant to this Section 10, seeks a judicial adjudication of or an award in arbitration to enforce\nhis rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be\nindemnified by the Company against, any and all expenses (of the types described in the definition of Expenses in Section 17 of this Agreement)\nactually and reasonably incurred by him in such judicial adjudication or arbitration, but only if he prevails therein. If it shall be determined in said\njudicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advancement of expenses sought,\nthe expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately prorated.\nSection 11. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.\n(a) The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed\nexclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the By-Laws,\nany agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any\nprovision hereof shall limit or restrict any right of Indemnitee in his Corporate Status prior to such amendment, alteration or repeal.\n(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers,\nemployees, or agents of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which\nsuch person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the\nmaximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies.\n(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of\nthe rights of recovery of Indemnities, who shall execute all papers required and take all action necessary to secure such rights, including execution of\nsuch documents as are necessary to enable the Company to bring suit to enforce such rights.\n(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if\nand to the extent that Indemnities has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.\nSection 12. Duration of Agreement. This Agreement shall continue until and terminate upon the later of: (a)10 years after the date that\nIndemnitee shall have ceased to serve as a director, officer, employee, or agent of the Company or of any other corporation, partnership, joint\nventure, trust, employee benefit plan or other enterprise which Indemnitee served at the request of the Company; or (b) the final termination of any\nProceeding then pending in respect of\n6\nwhich Indemnitee is granted rights of indemnification or advancement of expenses hereunder and of any proceeding commenced by Indemnitee\npursuant to Section 10 of this Agreement relating thereto. This Agreement shall be binding upon the Company and its successors and assigns and\nshall inure to the benefit of Indemnitee and his heirs, executors and administrators.\nSection 13. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any\nreason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each\nportion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or\nunenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement\n(including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or\nunenforceable, that is not itself invalid, illegal or unenforceable) shall be construed to as to give effect to the intent manifested thereby.\nSection 14. Exception to Right of Indemnification or Advancement of Expenses. Notwithstanding any other provision of this Agreement,\nIndemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to any Proceeding brought by\nIndemnitee, or any claim therein prior to a Change in Control, unless the bringing of such Proceeding or making of such claim shall have been\napproved by the Board of Directors.\nSection 15. Identical Counterparts. This agreement may be executed in one or more counterparts, each of which shall for all purposes be\ndeemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party\nagainst whom enforceability is sought needs to be produced to evidence the existence of this Agreement.\nSection 16. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to\nconstitute part of this Agreement or to affect the construction thereof.\nSection 17. Definitions. (a) The phrase “Change of Control,” as used in this Agreement, shall mean i) an acquisition of the Company by\nmeans of a merger or consolidation or purchase of substantially all of its assets if and when incident thereto (A) the composition of the Board of\nDirectors of the Company (the “Board”) or its successor changes so that a majority of the Board is not comprised of individuals who were members\nof the board immediately prior to such merger, consolidation or purchase of assets or (B) the stockholders of the Company acquire a right to receive,\nin exchange for or upon surrender a majority of their stock, cash or other securities or a combination of the two; and/or ii) the acquisition by a person\n(as that term is hereafter defined) of the voting rights with respect to 25 percent or more of the outstanding Common Stock of the Company if such\nperson was not an officer or director of the Company on the date of this Agreement; and/or iii) the election or appointment to the Board of any\ndirector or directors whose appointment or election or nomination for election was not approved by a vote of at least a majority of the directors then\nstill in office who were either directors on the date hereof or whose election, appointment or nomination for election was previously so approved.\n7\n(b) “Corporate Status” describes the status of a person who is or was a director, officer, employee or agent of the Company or of\nany other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person is or was serving at the request\nof the Company.\n(c) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of\nwhich indemnification is sought by Indemnitee.\n(d) “Effective Date” means January 10, 2007.\n(e) “Expenses” shall include all reasonable attorney’s fees, retainers, court costs, transcript costs, fees of experts, witness fees,\ntravel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or\nexpenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or\npreparing to be a witness in a Proceeding.\n(f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and\nneither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such\nparty, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term\n“Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a\nconflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.\n(g) “Proceeding” includes any action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative\nhearing or any other proceeding, whether civil, criminal, administrative, or investigative, except one (i) initiated by an Indemnitee pursuant to\nSection 10 of this Agreement to enforce his rights under this Agreement or (ii) pending on or before the Effective Date.\nSection 18. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in\nwriting by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other\nprovisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.\nSection 19. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons,\ncitation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to\nindemnification or advancement of Expenses covered hereunder.\n8\nSection 20. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have\nbeen duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or\n(ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed:\n(a) If to Indemnitee, to:\nDavid Freeman\nxxxxx\nxxxxx\n(b) If to the Company to:\nMary Tremblay\nVice President, General Counsel and Secretary\nLydall, Inc.\nP.O . Box 151\nOne Colonial Road\nManchester, CT 06045-0151\nor to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.\nSection 21. Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with,\nthe laws of the State of Delaware.\nSection 22. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written.\nATTEST:\nLYDALL, INC.,\nBy /s/ Mary A. Tremblay\nBy /s/ W. Leslie Duffy, Esq.\n9\nINDEMNITEE\n/s/ David Freeman\nDavid Freeman\nxxxxxxxxx\nxxxxxxxxx\n10\nConfidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the “Company”), the\ncompensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term “Confidential Information” as used in this Agreement includes all business information and records which relate to the Company or to\nparties working with the Company under a confidentiality agreement, and which are not known to the public generally, including, but not limited to,\ntechnical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs\nincluding any drawings and descriptions, unwritten knowledge and “know-how”, operating instructions, training manuals, production and\ndevelopment processes, production or other schedules, customer lists, customer buying records, product sales records, sales requests, territory\nlistings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy\nstatements, policy procedures, policy manuals, flowcharts, computer printouts, program listings, reproductions and correspondence.\nThe term “Invention” as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which\nrelates to any activity or business in which the Company is engaged or any process, equipment, material, product or method (including computer\nsoftware) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while\nI am an employee, whether or not such conception, development or perfection occurs during the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the\nCompany, together with all U.S . and foreign patents, trademarks or copyrights that may at any time be granted, and all reissues, renewals and\nextensions of such patents, trademarks or copyrights. At the request and expense of the Company, I will at any time do what the Company\nreasonably believes to be necessary to assist the Company to vest full right and title to each such Invention in the Company, enable the Company to\nobtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and extension),\ntrademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may\nbe declared involving any such application or patent and any litigation in which the Company may be involved concerning any such Invention. This\nwill include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section\nwill continue after I stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by the\nCompany.\n11\n3. Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any\ntrade secret or confidential information belonging to a former employer or other person and which has been classified by the former employer or\nother person as a trade secret or confidential information. The limitation set forth in this section shall not apply to matters which (a) are or become\npublic knowledge, (b) were previously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are\nindependently derived by the Company.\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to\nothers, any Confidential Information, no matter how such information becomes known to me, unless I first obtain the Company’s written consent.\nWhen I leave the Company’s employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and\nrecords, including but not limited to those listed under the definition of Confidential Information, which are in my possession or under my control\nand which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not\nretain or deliver to any others copies of these documents or records.\n4. Non-Competition\nI acknowledge and agree that the Company’s business competes upon a worldwide basis, and that the degree of competition in that business is high. I\nrecognize that the Company may assign me to duties in a geographic area or specific market. I agree that, unless I first obtain the Company’s written\nconsent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment\n(provided, however, that if I am employed by the Company for less than two (2) years, the post-employment period to which this section applies shall\nbe the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others, individually, or as a\nmember, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the\noutstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or\nhave any material financial interest in, any business competitive with the Company in (a) any market in which the company for which I have\nworked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the\nCompany has assigned me to duties in a geographic area, within two hundred fifty (250) miles of any such geographic area in which I have\nworked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the\nCompany to terminate any written or oral agreement, order or understanding with the Company or to conduct business in a way that results in\nan adverse impact to the Company.\nI further understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section\nwould be inadequate and that any breach or attempted breach would result in irreparable damage to the Company, the monetary amount of which\nwould be impossible to ascertain. Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to\nall other available legal or equitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened\nbreach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney fees, incurred in remedying\nsuch breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this\nAgreement.\nIn consideration of my employment, I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period\nand can be terminated at any time, with or without cause or prior notice by either the Company or me, and will remain so unless a written agreement\nfor a specific term is entered into and executed by me and the Company’s CEO or CFO. No other representations or agreements have been made\nregarding the term or termination of my employment. I understand that no employee of the Company other than its CEO or CFO has the authority to\nenter into any agreement, commitment or guarantees binding on the Company regarding my employment and then only by a signed, written\ndocument.\nThis Agreement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of\nmy agreement with the Company with respect to its subject matter, (b) shall be binding upon my heirs, executors and administrators, (c) shall be\nassignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by\nand construed in accordance with the law of the State of Connecticut, the Company ‘s home office state, and (f) if any part of this Agreement is\nfound invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman\n(Employee Signature)\n/s/ Rae Holmes\n(Witness to Signature)\nDavid Freeman\n(Employee printed name)\n7/2/03\n(Date)\n13\nLydall, Inc.\nBy: /s/ Roger M. Widmann\nName: Roger M. Widmann\nTitle: Chairman\n14